Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 1 of 259 PageID# 5874 1157 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia January 21, 2015 9:40 a.m. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME VI APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 (APPEARANCES CONT'D. ON FOLLOWING PAGE) (Pages 1157 - 1415) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 2 of 259 PageID# 5875 1158 APPEARANCES: 8 (Cont'd.) FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 CLASSIFIED INFORMATION SECURITY OFFICERS: CHRISTINE E. GUNNING MAURA PETERSON ALSO PRESENT: GERARD FRANCISCO SA ASHLEY HUNT JENNIFER MULLIN, ESQ. OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 3 of 259 PageID# 5876 1159 1 I N D E X 2 3 DIRECT CROSS REDIRECT RECROSS WITNESSES ON BEHALF OF THE GOVERNMENT: 4 Gayle Scherlis 1166 1184 1186 1186 SA Ashley K. Hunt 1188 1263 1290 1298 Jill Eulitz 1304 1310 1314 1318 5 6 7 8 WITNESSES ON BEHALF OF THE DEFENDANT: 9 Howard M. Gilby 10 11 EXHIBITS 12 MARKED 13 GOVERNMENT'S: 14 Nos. 48 54 61 65 73 15 16 17 18 19 20 21 22 23 24 25 thru thru thru thru thru RECEIVED 51 58 63 66 74 1227 1228 1228 1229 1228 77 94 thru 96 98 102 118 1229 1229 1226 1196 1229 125 128 129 130 131 1219 1247 1219 1229 1250 132A 137 139 140 141 1410 1190 1198 1190 1193 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 4 of 259 PageID# 5877 1160 1 EXHIBITS (Cont'd.) 2 MARKED 3 GOVERNMENT'S: 4 No. 161 163 166 168 175 5 6 7 176 RECEIVED 1216 1224 1411 1255 1261 1303 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 5 of 259 PageID# 5878 1161 1 P R O C E E D I N G S 2 (Defendant present, Jury out.) 3 THE CLERK: Criminal Case 10-485, United States of 4 America v. Jeffrey Alexander Sterling. 5 note their appearances for the record. 6 7 MR. TRUMP: MR. OLSHAN: Eric Olshan on behalf of the United MR. FITZPATRICK: Dennis Fitzpatrick on behalf of the United States. 12 THE COURT: 13 MR. POLLACK: Good morning. Good morning, Your Honor. 14 Pollack on behalf of Mr. Sterling. 15 MR. MAC MAHON: 16 Barry Edward MacMahon for Mr. Sterling, Your Honor. 17 18 Jim Trump on States. 10 11 Good morning, Your Honor. behalf of the United States. 8 9 Would counsel please MS. HAESSLY: And Mia Haessly for Mr. Sterling, Your Honor. 19 THE COURT: 20 All right, there's an issue before we bring the jury 21 22 in? Good morning. What is it, please? MR. MAC MAHON: Very briefly, Your Honor. Yesterday, 23 when the CART expert, whose name, I can't pronounce his last 24 name, testified, the government moved a series of exhibits in, 25 and, for example, if we can look at Exhibit 119, they put in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 6 of 259 PageID# 5879 1162 1 and they published to the jury the cluster, the gobbledygook I 2 think is what Mr. Fitzpatrick, how he described it, but on the 3 second page -- we went and looked at our exhibit book when we 4 got back. 5 where somebody just made a summary of what, I guess it's what 6 they think is in the exhibit. On the second -- there's a second page behind it 7 THE COURT: Hold on a second. 8 That's not proper. 9 MR. MAC MAHON: No, that can't go in. That goes, Your Honor, to 120 -- 119, 10 120, 121, 122, 123, 124, 126, and 146 is, is the same thing 11 though it's not as bad. 12 I'm not sure there was any foundation hardly for, but those are 13 exhibits that had a summary prepared that went behind them that 14 I didn't think was being moved into evidence, and I don't think 15 the evidence supported it either. 16 THE COURT: That's the Q:MERLIN\MERLIN.DOC, which I'm not allowing that. That testimony 17 was so dense and difficult, and it's not fair to highlight it 18 that way for the jury so -- 19 MR. FITZPATRICK: 20 it if we're just allowed two minutes. 21 labor here, and we can explain just very briefly. 22 Your Honor, I think we can explain There's a division of The witness testified that that was data that he 23 recovered from the hard drive with the exception of one file 24 that was in the swap drive from the unallocated space, and he 25 explained how that data got to the unallocated space and that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 7 of 259 PageID# 5880 1163 1 it goes in there into the unallocated space in a random 2 fashion. 3 He described that the program, the tool identified 4 the keywords under a unique file, for instance, 23. 5 another one, 103. 6 He doesn't know the case. There was He doesn't know the 7 meaning of the data within the file other than he was told to 8 search for a word: 9 "Risen." The case agent -- and this is where there's the 10 division of labor -- the case agent then analyzes the search 11 results and goes through line by line and, with her 12 understanding of the case and what she's looking for, 13 identifies data that is connected, that is all relevant to one 14 another. 15 Agent Hunt then prepared the summary, which is what 16 Mr. MacMahon is referring to. So it's the government's 17 intention to get the summaries in through Special Agent Hunt 18 when she testifies, and that will be Mr. Olshan's witness. 19 THE COURT: I understand the issue. 20 don't forget to raise it again. 21 evidence. MR. MAC MAHON: 23 THE COURT: 24 MR. MAC MAHON: 25 Let the government finish that We'll address this issue. 22 Mr. MacMahon, It's on my radar. Thank you. Just don't forget to remind me. As long as it's not in now, I'm happy. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 8 of 259 PageID# 5881 1164 1 THE COURT: 2 point; that's right. The summaries are not in now at this 3 All right, can we bring the jury in now? 4 MR. OLSHAN: 5 All right. Your Honor, may I confer with counsel very briefly? 6 THE COURT: 7 MR. POLLACK: Yes. Your Honor, with respect to the issue 8 that was raised yesterday regarding Government Exhibit 60, it's 9 my understanding that the government has agreed to substitute a 10 version of Exhibit 60 that is identical to the unclassified 11 version that was part of -- as to the relevant language is 12 identical to the unclassified PAR that was part of the EEO 13 file. 14 THE COURT: All right. So the 60 that's going to go 15 to the jury will be the one that we had talked about at the 16 bench. 17 MR. OLSHAN: 18 THE COURT: 19 MR. OLSHAN: 20 THE COURT: 21 MR. OLSHAN: May I, Your Honor? Yes. The term that we're -Correct. The phrase? Yes, that will be -- the 22 relevant quoted language will be what's in the exhibit that 23 goes to the jury. 24 substitution that's not at issue. 25 substituted form, and that's not an issue for the defense. There was one other word that is a That will stay in its Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 9 of 259 PageID# 5882 1165 1 THE COURT: That's fine. We just have to make 2 absolutely sure, I want you to hand-deliver that exhibit, the 3 corrected Exhibit 60 directly to Ms. Guyton. 4 MR. OLSHAN: 5 THE COURT: May I do it right now? Is it 100 percent ready now? Show it to 6 the defense. 7 so there's no question this is the exhibit that goes to the 8 jury. 9 I want, I want both sides to have looked at this Is it not ready yet? 10 MR. OLSHAN: 11 THE COURT: It's half-ready. Well, then let's not waste the jury's 12 time. 13 the witness in; let's bring the jury in. 14 this at a break. 15 16 17 This is taking up unnecessary jury time. MR. OLSHAN: We'll take care of The upshot, Your Honor, is that we have resolved it. THE COURT: 18 19 Let's bring Good. We're ready. (Jury present.) THE COURT: Good morning, ladies and gentlemen. 20 Again, I know you were all here on time. 21 another matter unrelated to this case that I had to take up, 22 and that's why we're starting a little bit late. 23 24 25 I had unfortunately But the weather was with us today, and again, did anybody have any problems over the break? (Jurors shaking heads.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 10 of 259 PageID# 5883 Scherlis - Direct 1 2 THE COURT: No? Good. Well, we're going to continue now with the testimony of Ms. Scherlis. 3 GAYLE SCHERLIS, GOVERNMENT'S WITNESS, 4 PREVIOUSLY AFFIRMED, RESUMED 5 6 1166 THE COURT: Ma'am, you're still under your affirmation from yesterday, all right? 7 THE WITNESS: 8 THE COURT: 9 Yes. All right, Mr. Olshan? DIRECT EXAMINATION (Cont'd.) 10 BY MR. OLSHAN: 11 Q. Good morning, ma'am. 12 A. Good morning. 13 Q. Ms. Scherlis, I think yesterday when we left off, we had 14 finished talking about the defendant's original secrecy 15 agreement. 16 A. Yes. 17 Q. That's the document that the defendant signed on his first 18 day of work with the CIA? 19 A. Do you recall that? Yes. 20 MR. OLSHAN: If we could with the assistance of the 21 court security officer take a look at a couple additional 22 exhibits in the first binder, Exhibits 2, 3, and 4, which are 23 already in evidence? 24 Q. Do you have 2 in front of you? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 11 of 259 PageID# 5884 Scherlis - Direct 1 MR. OLSHAN: 1167 If we could publish the first page of 2, 2 Mr. Francisco? 3 Q. 4 Ms. Scherlis? 5 A. 6 Agreement." 7 Q. 8 sometimes have to sign? 9 A. Yes. 10 Q. And can you just generally describe for the jury what is 11 this document or this type of document? 12 A. 13 briefed into a program. 14 reminds them of their responsibilities to protect classified 15 information. 16 Q. 17 of further briefing than the original secrecy agreement might 18 cover? 19 A. Yes. 20 Q. At the top, where it says "Sensitive Compartmented 21 Information," is that often referred to as SCI? 22 A. Yes. 23 Q. Typically, is that at the Top Secret level that someone 24 would deal with SCI information? 25 A. What does it say at the top of that document, "Sensitive Compartmented Information Nondisclosure Is this another type of agreement that CIA employees It's, it's a binding that the employee signs when they are It could be any program, but it So there are certain types of programs that require sort Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 12 of 259 PageID# 5885 Scherlis - Direct 1168 1 Q. 2 agreements, in any way supersede the original secrecy 3 agreement? 4 A. No. 5 Q. So the secrecy agreement is in place regardless of whether 6 anyone signs one of these? 7 A. 8 9 Do these types of agreements, these SCI nondisclosure Yes. MR. OLSHAN: If we could highlight the first three paragraphs of this document? 10 Q. Ms. Scherlis, whose name is on this document? 11 A. Jeffrey Alexander Sterling. 12 Q. If you could read the first paragraph? 13 A. "Intending to be legally bound, I hereby accept the 14 obligations contained in this agreement in consideration of my 15 being granted access to information or material protected 16 within special access programs, hereinafter referred to in this 17 agreement as Sensitive Compartmented Information, SCI. 18 been advised that SCI involves or derives from intelligence 19 sources or methods and is classified or is in the process of a 20 classification determination under the standards of Executive 21 Order 12356 or other executive order or statute. 22 and accept that by being granted access to SCI, special 23 confidence and trust shall be placed in me by the United States 24 government." 25 Q. I have I understand So it's that same special confidence and trust that's in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 13 of 259 PageID# 5886 Scherlis - Direct 1 the secrecy agreement? 2 A. Yes. 3 MR. MAC MAHON: 4 speak for themselves. 5 MR. OLSHAN: 6 1169 Your Honor, I object. The documents Your Honor, I'm not going to -- I'm not going to have the witness read all of this. 7 THE COURT: All right, then I'll overrule the 8 objection at this point. 9 BY MR. OLSHAN: 10 Q. Ms. Scherlis, if you could take a look at paragraph No. 2, 11 does that make reference to whether the person signing it has 12 been apprised or made aware of the protections that are 13 required for SCI? 14 A. Yes. 15 Q. And if you could just read where, the last two sentences 16 that start with "I understand that I may be"? 17 A. 18 agreements upon being granted access to different categories of 19 SCI. 20 agreement continue to exist whether or not I am required to 21 sign such subsequent agreements." 22 Q. 23 agreements every time? 24 A. No. 25 Q. If you could read the first sentence of paragraph 3? "I understand that I may be required to sign subsequent I further understand that all my obligations under this So is it necessary that someone must sign one of these Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 14 of 259 PageID# 5887 Scherlis - Direct 1170 1 A. "I have been advised that the unauthorized disclosure, 2 unauthorized retention, or negligent handling of SCI by me 3 could cause irreparable injury to the United States or be used 4 to advantage by a foreign nation." 5 Q. Continue with the next sentence. 6 A. "I hereby agree that I will never divulge anything marked 7 as SCI or that I know to be SCI to anyone who is not authorized 8 to receive it without prior written authorization from the 9 United States Government department or agency (hereinafter 10 Department or Agency) that last authorized my access to SCI." 11 Q. 12 would like to disclose it, do they have to consult with the 13 agency pursuant to this agreement? 14 A. Yes. 15 Q. Do they have to seek approval? 16 A. Yes. 17 Q. And if you'd just read the last sentence of that 18 paragraph, paragraph 3? 19 A. 20 regulation not to disclose any classified information or 21 material in an unauthorized fashion." 22 Q. 23 criminal laws that could be violated by someone's violation of 24 this agreement? 25 A. If an individual who has SCI, is in possession of SCI "I further understand that I am also obligated by law and In paragraph 6, are there any references to specific Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 15 of 259 PageID# 5888 Scherlis - Direct 1171 1 Q. Can you read the sentence that begins, "I have been 2 advised"? 3 A. 4 SCI by me may constitute violations of United States criminal 5 laws, including the provisions of Sections 793, 794, 798, and 6 952, Title 18, United States Code, and Section 783(b), Title 7 50, United States Code. 8 a waiver by the United States of the right to prosecute me for 9 any statutory violation." It's in the middle of the paragraph. "I have been advised that any unauthorized disclosure of Nothing in this agreement constitutes 10 Q. Take a look at paragraph 8 of this SCI nondisclosure 11 agreement. 12 property that is the SCI? 13 A. "Property of the United States government." 14 Q. And does it mean -- does it continue to be the property of 15 the United States government? What does this paragraph say about ownership of the 16 MR. MAC MAHON: 17 THE COURT: Your Honor, objection to the form. Sustained. 18 BY MR. OLSHAN: 19 Q. 20 the sentence that begins "I agree that I shall"? 21 A. 22 come into my possession or for which I am responsible because 23 of such access, upon demand by an authorized representative of 24 the United States Government or upon the conclusion of my 25 employment or other relationship with the United States In the middle of paragraph 8, end of line 3, can you read "I agree that I shall return all materials that may have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 16 of 259 PageID# 5889 Scherlis - Direct 1172 1 Government entity providing me access to such materials. If I 2 do not return such materials upon request, I understand this 3 may be a violation of Section 793, Title 18, United States 4 Code." 5 Q. 6 long these obligations are in effect? 7 A. 8 forever. 9 Q. Can you read paragraph 11? 10 A. "I have read this Agreement carefully, and my questions, 11 if any, have been answered to my satisfaction. 12 that the briefing officer has made available Sections 793, 794, 13 798, and 952 of Title 18, United States Code, and Section 14 783(b) of Title 50, United States Code, and Executive Order 15 12356, as amended, so that I may read them at this time if I so 16 choose." 17 Q. 18 at least the opportunity for someone signing one of these 19 agreements to review the relevant laws? 20 A. Yes. 21 Q. If we could flip to page 2 of this exhibit? 22 document appear to be signed and dated? 23 A. Yes. 24 Q. What's the date on this document? 25 A. 20 May 1993. In paragraph 9, what does paragraph 9 indicate about how During the time being granted SCI and all times after that I acknowledge So is it standard practice in your experience to provide Does this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 17 of 259 PageID# 5890 Scherlis - Direct 1173 1 Q. And what does it say in paragraph 15? 2 A. "I make this Agreement without any mental reservation or 3 purpose of evasion." 4 MR. OLSHAN: Mr. Francisco, if you could scroll down 5 and highlight or blow up that bold box portion? 6 Q. 7 standard to have one of these highlighted areas that 8 Mr. Francisco has blown up? 9 A. Yes. 10 Q. And can you describe to the jury what's the purpose of 11 this box? 12 A. 13 person is being briefed into, and these are the typical ones 14 that an agency employee would be briefed into, and other 15 programs have other designations. 16 Q. 17 combination of letters that appear there are signifiers for 18 specific programs? 19 A. Correct. 20 Q. And does this document reflect whether Mr. Sterling was 21 briefed into those programs or debriefed on his way out of 22 them? 23 A. He was briefed. 24 Q. And is that reflected in the box that has "Brief" written? 25 A. Yes. Ms. Scherlis, in these SCI nondisclosure agreements, is it It's right next to you. The compartments that are listed are the programs that the So these, for example, in this exhibit, the letters or Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 18 of 259 PageID# 5891 Scherlis - Direct 1174 1 Q. Can you look at Exhibit 3? What is Government Exhibit 3? 2 A. Excuse me? 3 Q. What is it? 4 A. Same, a Sensitive Compartmented Information briefing form. 5 Q. So this has the same content as 2? 6 A. Yes. 7 Q. And whose name is on this one? 8 A. Jeffrey Sterling. 9 Q. If we could publish the second page, what's the date on What type of document is it? 10 that? 11 A. 4 January 1994. 12 Q. Does this document reflect that Mr. Sterling was briefed 13 into and out of certain programs? 14 A. Yes. 15 Q. If you could take a look at Government Exhibit 4? 16 Let me back up for one second. The last one, you 17 don't have to go back to it, reflected that Mr. Sterling had 18 signed in the debrief box. 19 A. Yes. 20 Q. What's the purpose of the debriefing for the benefit of 21 the jury? 22 A. 23 secrecy agreement but no longer having access to the program. 24 Q. 25 nondisclosure agreement? Do you recall that? He was briefed out of the program, meaning reminded of the Now, if you could go back to 4, is that another SCI Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 19 of 259 PageID# 5892 Scherlis - Direct 1175 1 A. Yes. 2 Q. With Mr. Sterling's name on it? 3 A. Yes. 4 Q. And is it signed on the second page? 5 A. Yes. 6 Q. Is there a date next to the first signature? 7 A. No. 8 Q. What about in the brief box? 9 A. Yes. 10 Q. What's that date? 11 A. 5/28/99. 12 Q. And does it appear that this, the specific program 13 designators have been removed from this version? 14 A. Yes. 15 Q. Would somebody sign one of these without any tickets being 16 listed? 17 A. 18 Not normally. THE COURT: Well, do we know? 19 redacted, or is this just blank? 20 MR. OLSHAN: 21 THE COURT: 22 It's redacted. It is redacted. I think the jury needs to know that. 23 MR. OLSHAN: 24 THE COURT: 25 It is. I mean, is this one It was redacted. All right. So the signifiers of the program do not appear on this, but they did originally. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 20 of 259 PageID# 5893 Scherlis - Direct 1 MR. OLSHAN: 2 THE COURT: 3 MR. OLSHAN: 1176 Correct. All right. Thank you. 4 Q. Now, Ms. Scherlis, you testified that you had met the 5 defendant; is that correct? 6 A. Yes. 7 Q. When did you meet him? 8 you meet him? 9 A. In what, what circumstances did I was debriefing him from his employment at Central 10 Intelligence Agency. 11 Q. What does that mean? 12 A. His employment was being terminated, so I was having him 13 sign the appropriate paperwork and reminding him of his 14 responsibilities and collecting whatever information he might 15 still have with him. 16 Q. Is that standard? 17 A. Yes. 18 Q. So everybody who is departing from the agency goes through 19 a similar process? 20 A. Yes. 21 Q. And over your years working at the CIA, you've been 22 involved in these final out-briefings? 23 A. Yes. 24 Q. Many times? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 21 of 259 PageID# 5894 Scherlis - Direct 1 2 MR. OLSHAN: 1177 If we could flip to Exhibit 79, which I believe is in the second binder, Mr. Wood? 3 THE COURT: 4 MR. OLSHAN: 5 THE COURT: 79 is in, is it not? It is in. Yeah. 6 BY MR. OLSHAN: 7 Q. 8 three pages. 9 A. Yes. 10 Q. Do you recognize those documents? 11 A. Yes. 12 Q. Let's focus on just the first two. 13 pages of this exhibit? 14 A. 15 Agreement, and then the second page lists the 16 Briefing/Debriefing Acknowledgment. 17 Q. This is again the standard SCI nondisclosure agreement? 18 A. Yes. 19 Q. Did you present this to Mr. Sterling? 20 A. Yes. 21 Q. Other than just giving Mr. Sterling a document, do you -- 22 did you talk to him at all? 23 A. Yes. 24 Q. What did you tell him? 25 A. That in the termination of his employment, he was still If you could just flip through that exhibit, it should be Do you see those, Ms. Scherlis? What are the first two Sensitive Compartmented Information Nondisclosure Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 22 of 259 PageID# 5895 Scherlis - Direct 1178 1 bound by the secrecy agreement, and from the third page, asked 2 him if he had any materials that he needed to return. 3 Q. 4 discussion that you give other people? 5 A. Yes, yes. 6 Q. So on the second page of this final nondisclosure 7 agreement, do you see the check marks by "Signature" and 8 "Date"? 9 A. Yes. 10 Q. Did you place those check marks there? 11 A. Yes. 12 Q. Why did you do that? 13 A. So the, Mr. Sterling would know where to complete the 14 form. 15 Q. Did he sign this form? 16 A. No. 17 Q. Why, why not? 18 A. He refused to sign it. 19 Q. Did you ask him why he was refusing to sign it? 20 A. I don't believe so. 21 Q. Did you sign this document? 22 A. Yes. 23 Q. That's your signature below where he should have signed? 24 A. Yes. 25 Q. And what's the date on it? And so did you just give him sort of the standard Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 23 of 259 PageID# 5896 Scherlis - Direct 1179 1 A. 31 January 2002. 2 Q. If you could look at the debriefing box, do you see a 3 couple tickets listed there? 4 A. Yes. 5 6 MR. OLSHAN: And for the record, Your Honor, it has -- this also has been redacted. 7 THE COURT: All right. 8 BY MR. OLSHAN: 9 Q. Again, did you place the check marks in that box? 10 A. Yes. 11 Q. And in the debrief box, is that where Mr. Sterling should 12 have signed? 13 A. Yes. 14 Q. What did you write there? 15 A. "Admin debrief." 16 Q. What does that mean? 17 A. He was debriefed even though he did not sign the form. 18 Q. At the bottom, is that your handwriting -- 19 A. Yes. 20 Q. -- at the bottom of the document? 21 What did you write there? 22 A. "Employee refused to sign." 23 Q. If we could flip to the third page, do you see a form 24 that's called a Security Exit Form? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 24 of 259 PageID# 5897 Scherlis - Direct 1180 1 Q. Is that also a standard form used during someone's final 2 exit from the CIA? 3 A. Yes. 4 Q. And what's the purpose of this form? 5 A. Again, a reminder of the secrecy agreement and a means of 6 returning any information or materials that need to be 7 returned. 8 Q. 9 says "Sterling J," and then an address in the top third of the Focusing on the top part, the handwriting where it 10 document, is that your handwriting? 11 A. No. 12 Q. Mr. Sterling filled that out? 13 A. Yes. 14 Q. Did he fill it out in your presence? 15 A. Yes. 16 Q. But he refused to sign this document? 17 A. Yes. 18 Q. Where it says "Please check accesses," on the left side 19 and "SCI" is checked, did you check that, or did Mr. Sterling 20 check that? 21 A. Mr. Sterling. 22 Q. And what about in the next box, where it says "Reason for 23 leaving"? 24 A. "Involuntary separation." 25 Q. With a makeshift box? Do you see what's written there? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 25 of 259 PageID# 5898 Scherlis - Direct 1181 1 A. Yes. 2 Q. With a check in that? 3 A. Yes. 4 Q. Did you draw that? 5 A. No. 6 Q. Who did? 7 A. Mr. Sterling. 8 Q. Now, below that, there are a list of seven items. 9 see that? Do you 10 A. Yes. 11 Q. Is that standard? 12 A. Yes. 13 Q. And can you read No. 1? 14 A. "I understand that the Secrecy Agreement executed upon my 15 entrance-on-duty (EOD) requires the obligation to protect 16 classified information, sources, and methods against 17 unauthorized disclosure after my separation from Agency 18 employment." 19 Q. No. 2, please? 20 A. "I am advised that all information received and compiled 21 while employed with the Agency is official and is the property 22 of the U.S. Government forever and no employee or former 23 employee has any property right to such material." 24 Q. No. 3, please? 25 A. "I give my assurance that there is no classified material Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 26 of 259 PageID# 5899 Scherlis - Direct 1182 1 in my possession, custody, or control at this time." 2 Q. No. 4? 3 A. "I am instructed that classified information pertaining to 4 intelligence operations, sources, and methods specific to the 5 Agency may not be divulged, without authorization of the 6 Director of Central Intelligence or designee, to any persons, 7 even though they possess a security clearance within their own 8 organization." 9 Q. So even if somebody has a security clearance who works 10 elsewhere, you still can't disclose what you've learned with 11 the CIA? 12 MR. MAC MAHON: 13 THE COURT: Your Honor, objection to form. That is leading. Sustained. 14 BY MR. OLSHAN: 15 Q. 16 disclose information you learn as a CIA employee to people with 17 clearances at other agencies? 18 A. 19 clearances. 20 Q. Did you go through these items with Mr. Sterling? 21 A. Yes. 22 Q. How important are these items? 23 A. Very important. 24 Q. Why? 25 A. Because it binds him to this document. What does this paragraph say about whether you can Cannot divulge classified information even if they have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 27 of 259 PageID# 5900 Scherlis - Direct 1183 1 Q. And what about No. 7? 2 A. "I am informed that should any question arise on security 3 matters, I may communicate with the Agency for assistance." 4 Q. 5 officer, about any questions he had? 6 A. No. 7 Q. And at the bottom of this document, did you sign it? 8 A. Yes. 9 Q. As a witness? 10 A. Yes. 11 Q. And did you write -- at the bottom, the very bottom, is 12 that your handwriting again? 13 A. Yes. 14 Q. And again, what did you write? 15 A. "Employee refused to sign." 16 Q. Did you indicate to Mr. Sterling one way or the other 17 whether his refusal to sign changed his obligations? 18 A. Yes. 19 Q. What did you say? 20 A. I told him he was still bound by the original secrecy 21 agreement. 22 Q. 23 employees, how many other times did someone refuse to sign it? 24 A. 25 Did Mr. Sterling ever follow up with you, a security In your experience conducting these debriefings for CIA This is the only one that I can recall. MR. OLSHAN: One moment, Your Honor? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 28 of 259 PageID# 5901 Scherlis - Cross 1184 1 THE COURT: Yes, sir. 2 MR. OLSHAN: 3 THE COURT: 4 MR. MAC MAHON: That's all I have. All right, Mr. MacMahon? 5 Thank you, Your Honor. CROSS-EXAMINATION 6 BY MR. MAC MAHON: 7 Q. 8 lawyers for Mr. Sterling. Ms. Scherlis, my name is Edward MacMahon. 9 I'm one of the These conversations took place 13 years ago? 10 A. Yes. 11 Q. Okay. 12 told us yesterday, but I've forgotten. 13 A. I retired in January 2009. 14 Q. All right. 15 the CIA? 16 A. Twenty-nine years. 17 Q. Did you take any notes of your conversation with 18 Mr. Sterling? 19 A. No. 20 Q. And how many times did you meet with Mr. Olshan to go over 21 your testimony that you've read today? 22 A. Once. 23 Q. Just once? 24 A. Yes. 25 Q. You testified earlier that there wasn't -- that And how long did you work at the CIA? I know you And how many years before that did you work at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 29 of 259 PageID# 5902 Scherlis - Cross 1185 1 Mr. Sterling was bound by the original agreements that he 2 signed, correct? 3 A. Yes. 4 Q. So the, the signing of this form that's Exhibit 79 didn't 5 add or subtract anything from his obligations, did it? 6 A. No. 7 Q. And did you know that in January of 2002, that 8 Mr. Sterling was in litigation with the CIA? 9 A. No. 10 Q. When he checked "Involuntary Separation," had you ever 11 seen that written on a form before as you debriefed somebody? 12 A. No. 13 Q. Did you ask Mr. Sterling if he was in the middle of a 14 federal discrimination suit against the CIA at that time? 15 A. No. 16 Q. Did you ask him whether he'd had litigation with the 17 Publication Review Board at that time? 18 A. No. 19 Q. Had you ever debriefed somebody that was in litigation 20 with the CIA before? 21 A. Not that I'm aware of. 22 Q. And when you asked Mr. Sterling if he had any classified 23 information or otherwise, he told you that he didn't, correct? 24 A. Yes. 25 Q. And you don't have any, any information that that wasn't a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 30 of 259 PageID# 5903 Scherlis - Redirect/Recross 1186 1 true statement when he told you that, right? 2 A. True. 3 Q. And you don't have any information that he ever divulged 4 any SCI or any other form of information to anyone, correct? 5 A. Correct. 6 MR. MAC MAHON: 7 THE COURT: 8 MR. OLSHAN: 9 That's all, Your Honor. Thank you. Any redirect? Very briefly, Your Honor. REDIRECT EXAMINATION 10 BY MR. OLSHAN: 11 Q. 12 anything about having to sign this last document added or 13 subtracted from the overall secrecy agreement. 14 him asking you that? 15 A. Yes. 16 Q. Why is it important for somebody to acknowledge on their 17 last day that they understand their obligations? 18 A. 19 agreement. 20 Q. And is that vital to the functioning of the CIA? 21 A. Yes. Mr. MacMahon just asked you, Ms. Scherlis, whether It's a reminder to them that they are bound by the secrecy 22 MR. OLSHAN: 23 THE COURT: 24 MR. MAC MAHON: 25 Do you remember No further questions. Any recross? If I may, Your Honor? RECROSS EXAMINATION Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 31 of 259 PageID# 5904 Scherlis - Recross 1187 1 BY MR. MAC MAHON: 2 Q. 3 Mr. Sterling fully understood his obligations to the CIA in 4 late 2002, when you debriefed him, did you? Ma'am, you didn't have any question in your mind that 5 MR. OLSHAN: That calls for speculation. 6 MR. MAC MAHON: 7 THE COURT: Objection. He opened the door, Your Honor. I don't think the door was opened. 8 overrule -- I mean, I'll sustain the objection. 9 BY MR. MAC MAHON: I'll 10 Q. Did Mr. Sterling indicate to you at any time that he 11 didn't understand his obligations to the CIA? 12 A. No. 13 Q. And you gave him a full debrief, as you had for 20-some 14 years to people that were leaving, correct? 15 A. Yes. 16 MR. MAC MAHON: 17 THE COURT: 18 All right, thank you, ma'am, for your testimony. 19 20 THE WITNESS: Thank you. (Witness excused.) 22 THE COURT: 23 MR. OLSHAN: 25 All right, thank you. You're excused as a witness. 21 24 That's all, Your Honor. Your next witness? The United States calls Special Agent Ashley Hunt. THE COURT: All right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 32 of 259 PageID# 5905 Hunt - Direct 1188 1 SA ASHLEY K. HUNT, GOVERNMENT'S WITNESS, AFFIRMED 2 DIRECT EXAMINATION 3 BY MR. OLSHAN: 4 Q. Good morning. 5 A. Good morning. 6 Q. Would you please state and spell your name for the record? 7 A. Ashley, middle initial K, Hunt, H-u-n-t. 8 Q. How are you employed, ma'am? 9 A. I'm employed by the Federal Bureau of Investigation. 10 Q. And what's your job there? 11 A. I'm a special agent. 12 Q. When did you become a special agent with the FBI? 13 A. In 2000. 14 Q. So you've been a special agent for approximately how long? 15 A. Almost 15 years. 16 Q. Prior to becoming a special agent, did you have any other 17 jobs with the FBI? 18 A. 19 counterintelligence unit for three years before I became an 20 agent. 21 Q. What's your educational background? 22 A. I have a Bachelor's of Science Degree in Psychology from 23 the University of Alabama. 24 Q. 25 other career? Yes, I did. I was an analyst in a Russian Other than your employment with the FBI, have you had any Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 33 of 259 PageID# 5906 Hunt - Direct 1189 1 A. No. 2 Q. Special Agent Hunt, are you the case agent assigned to the 3 investigation involving unauthorized disclosures related to 4 Classified Program No. 1 and Merlin? 5 A. Yes. 6 Q. And how long have you been assigned to that investigation? 7 A. Almost 12 years. 8 Q. Approximately when did you begin working on it? 9 A. I opened the investigation on April 8, 2003. 10 Q. Is this the only case that you've worked during those, the 11 last 12 years? 12 A. No. 13 Q. What kind of cases do you currently work on? 14 A. For the past three years, I've been working on white 15 collar crime and public corruption matters. 16 Q. And prior to that, what type of cases did you work? 17 A. Espionage cases. 18 Q. Special Agent Hunt, during the course of your 19 investigation, did you obtain a search warrant for the 20 defendant's e-mail accounts? 21 A. Yes. 22 Q. Let's talk through that process. 23 the defendant's e-mail accounts? 24 A. MSN Hotmail. 25 Q. And approximately when did you execute a search warrant? Who was the provider for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 34 of 259 PageID# 5907 Hunt - Direct 1190 1 A. I believe the warrant was actually executed by my partner 2 in my absence in October of 2006. 3 Q. 4 defendant's e-mail accounts prior to execution of the warrant? 5 A. Yes. 6 Q. Can you tell the jury what you did? 7 A. Yes. 8 preservation letter, and I sent the preservation letter to MSN 9 Hotmail. Did you do anything to preserve the content of the In April of 2006, I prepared what is called a 10 Q. I'll stop you right there. If we could with the 11 assistance of the court security officer take a look at the 12 second binder? 13 Exhibits 137 and 140. I'm going to ask Special Agent Hunt to look at 14 THE COURT: Any objection to those exhibits? 15 MR. MAC MAHON: 16 THE COURT: 17 (Government's Exhibit Nos. 137 and 140 were received Not to 137 or 140, Your Honor. All right, they're both in. 18 in evidence.) 19 BY MR. OLSHAN: 20 Q. Do you see those documents, Special Agent Hunt? 21 A. Yes. 22 Q. Okay. 23 does that reflect? 24 A. 25 preservation letter I sent them. Let's look at 137 first. In your own words, what It is the response I received from MSN Hotmail to the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 35 of 259 PageID# 5908 Hunt - Direct Okay. 1191 1 Q. 2 2006, correct? 3 A. Yes. 4 Q. When did you actually send the preservation letter? 5 A. I sent it in April. 6 Q. And the date in the middle of that page is 4/19/06. 7 A. Correct. 8 Q. Do you see that? 9 And this document is dated at the bottom May 12, Is that around the time that you submitted the 10 preservation request? 11 A. 12 received this response. Yes. 13 I believe I submitted it a day or two before I THE COURT: Go ahead. 14 BY MR. OLSHAN: 15 Q. 16 of a preservation request is? 17 A. 18 of this kind, they take a snapshot of the entire contents of 19 the particular e-mail account that you've named in the 20 preservation letter. 21 account, but essentially, they preserve all the data in that 22 e-mail account on that day and on no other day moving forward. 23 Q. So it's literally frozen in time in a sense? 24 A. That's correct. 25 Q. Did your preservation request to MSN Hotmail include Special Agent Hunt, can you tell the jury what the purpose Yes. So when you send a preservation letter to a provider You can also name more than one e-mail Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 36 of 259 PageID# 5909 Hunt - Direct 1192 1 preservation of jeffreys@hotmail.com and jsthe7th@hotmail.com? 2 A. Yes. 3 Q. At some point, did you serve -- was another snapshot taken 4 by MSN? 5 A. Yes. 6 Q. Was that in July? 7 A. Yes, July of 2006. 8 Q. And what was the purpose of doing that? 9 A. Well, my initial request was for MSN Hotmail to extend the 10 preservation of the April snapshot for an additional 90-day 11 period, so when you send a preservation letter and a snapshot 12 is taken, the provider agrees to freeze that data and keep it 13 for 90 days, so in July, I wanted them to keep the April data 14 for an additional 90-day period. 15 They misunderstood my request. They took another 16 snapshot of the same e-mail account or accounts in July, and 17 then after I made a second request, they agreed to further 18 preserve the data that had been collected in April for an 19 additional 90-day period. 20 Q. 21 snapshots? 22 A. Correct. 23 Q. And if you could look at Exhibit 140? 24 document reflect? 25 A. So in July of 2006, there were at that point two What does that It is a response I received from MSN Hotmail in July of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 37 of 259 PageID# 5910 Hunt - Direct 1193 1 2006. 2 Q. Confirming the snapshot process you just discussed? 3 A. Yes. 4 Q. You testified at some point, you actually executed a 5 search warrant for these e-mail accounts; is that correct? 6 A. I believe my partner did. 7 Q. I'm sorry. 8 A. Yes. 9 Q. The FBI did. 10 A. Yes, the FBI did. 11 Q. If you could look at Exhibit 141, which is not in evidence 12 yet? 13 THE COURT: 14 MR. MAC MAHON: 15 Any objection to 141? put the affidavits and search warrants in evidence in the case. 16 MR. OLSHAN: 17 MR. MAC MAHON: 18 There's no affidavit, Your Honor. There is a search warrant, Your Honor. 19 20 Well, Your Honor, you usually don't THE COURT: here. It's just the -- I just see the warrant My exhibit only has two pages. 21 MR. MAC MAHON: No objection, Your Honor. 22 THE COURT: 23 MR. MAC MAHON: 24 THE COURT: 25 (Government's Exhibit No. 141 was received in All right. I was flipping to the back. 141 is in. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 38 of 259 PageID# 5911 Hunt - Direct 1194 1 evidence.) 2 BY MR. OLSHAN: 3 Q. Do you see that document? 4 A. I do. 5 Q. Is this the search warrant that the FBI executed for those 6 e-mail accounts? 7 A. Yes. 8 Q. After the search warrant was executed, did you receive the 9 proceeds of that search warrant? 10 A. Yes. 11 Q. Can you describe for the jury what you got? 12 A. Yes. 13 the disc had the data captured in April, the data captured in 14 July, and the data captured in October. 15 how this was done, but the disc and the data was given to a 16 filter agent who then printed all the data from the disc, and 17 the filter agent reviewed all of the data, removing any 18 communications he deemed to possibly be privileged. 19 Q. 20 conversation or communication between the defendant or anyone 21 else and a lawyer? 22 A. Correct. 23 Q. You were not involved in that process? 24 A. That's correct. 25 Q. What happened after that process ended? MSN Hotmail sent a disc to the FBI in the mail, and I'm not sure exactly So, for example, any communication that might reflect Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 39 of 259 PageID# 5912 Hunt - Direct 1195 1 A. So after that process was complete, I was given a Bankers 2 Box or two full of the hard copy printouts from the e-mail 3 accounts divided into the April set, the July set, and the 4 October set. 5 Q. And then did you review that material? 6 A. Yes. 7 Q. By hand? 8 A. Yes. 9 Q. If we could bring 141 back up just for the record? 10 The date of this search warrant at the bottom was 11 when? 12 A. October 12, 2006. 13 Q. Thank you. 14 If you could take a look at Exhibit 102, which should 15 be in the same binder but earlier? If you could just focus on 16 the first six pages, do you recognize that? 17 A. I do. 18 Q. What is that? 19 A. This is an e-mail dated March 10, 2003, and the e-mail is 20 from the account jeffreys@hotmail.com. 21 Q. 22 e-mail? 23 A. 24 received from MSN Hotmail. 25 Q. Before, before we get into that, where did you locate this This e-mail was located in the April set of data that was And did you check whether this e-mail was maintained or Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 40 of 259 PageID# 5913 Hunt - Direct 1196 1 contained in the other batches from July or October? 2 A. 3 did not appear in either one. Yes. I reviewed those batches of data, and this e-mail 4 MR. OLSHAN: 5 MR. MAC MAHON: 6 THE COURT: 7 (Government's Exhibit No. 102 was received in 8 Your Honor, we'd move in 102. No objection, Your Honor. All right, it's in. evidence.) 9 MR. OLSHAN: If we could publish the first page, 10 Mr. Francisco, and zoom in on the portion where it starts 11 with "Date"? 12 Q. Is this the e-mail you're referring to? 13 A. Yes. 14 Q. What's the date? 15 A. March 10, 2003. 16 Q. And who's the sender? 17 A. Jeffreys@hotmail.com. 18 Q. And who's the recipients -- who are the recipients listed 19 in the "To" line? 20 A. Jeffreys@hotmail.com and jrisen@nytimes.com. 21 Q. Is there a subject below the "To" line? 22 A. Yes. 23 Q. Can you read the subject? 24 A. It reads, "CNN.com - Report: 25 advanced' nuclear program - Mar. 10, 2003." And then you can just include the -- that's fine. Iran has 'extremely Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 41 of 259 PageID# 5914 Hunt - Direct 1197 1 Q. And then below that, is there text in the body of that 2 e-mail? 3 A. Yes. 4 Q. What does it say? 5 A. It says, "I'm sure you've already seen this, but quite 6 interesting, don't you think? 7 wonder . . . J." 8 Q. And then is there a link attached to this e-mail? 9 A. Yes. 10 Q. Did you click on that link, or did you go to that link? 11 A. Yes. 12 Q. And if you could look at the last two pages of the 13 exhibit, is that the same story? 14 A. Yes, it is. 15 Q. Without reading it, what is the story about? 16 A. The story is about the then current state of the Iranian 17 nuclear weapons program. 18 Q. 19 an e-mail account that the defendant used and an e-mail account 20 associated with Jim Risen? 21 A. That's correct. 22 Q. And again, what was the date? 23 A. March 10, 2003. 24 Q. In the course of your investigation, did you learn whether 25 Mr. Sterling went to the Senate at any point? All the more reason to And it was -- this link was attached to an e-mail between Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 42 of 259 PageID# 5915 Hunt - Direct 1198 1 A. Yes, I did. 2 Q. What was the date on which Mr. Sterling went to the 3 Senate? 4 A. March 5, 2003. 5 Q. How many days later was this e-mail sent? 6 A. Five. 7 Q. You testified that this e-mail was not in the subsequent 8 snapshots from July and October, correct? 9 A. That's correct. 10 Q. Between April, that first snapshot, and the next July 11 snapshot, did you have any interaction with the defendant? 12 A. Yes, I did. 13 Q. Did you serve him a subpoena? 14 A. Yes. 15 Q. If you could take a look at Exhibit 139, which should be 16 in the same binder? 17 THE COURT: Any objection? 18 MR. MAC MAHON: 19 THE COURT: 20 (Government's Exhibit No. 139 was received in No objection, Your Honor. All right, 139 is in. 21 evidence.) 22 BY MR. OLSHAN: 23 Q. 24 served on Mr. Sterling? 25 A. Is that two-page document the subpoena that, that you Yes, it is. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 43 of 259 PageID# 5916 Hunt - Direct 1199 1 Q. And where did that occur? 2 A. That occurred in O'Fallon, Missouri. 3 Q. That's where the defendant lived at the time? 4 A. Yes. 5 Q. Is that where he still resides to the best of your 6 knowledge? 7 A. Yes. 8 Q. And what's the date on this subpoena? 9 A. The date on the subpoena is June 15, 2006. 10 Q. Do you recall whether you actually served it on June 15? 11 A. I served it on June 16. 12 Q. If you could take a look at the second page? 13 speaking, what does this rider call for the production of? 14 A. 15 the rider listed descriptions of categories of documents. 16 Q. 17 defendant's work? This subpoena was both for testimony and documents, and And would that rider have covered documents related to the 18 19 Generally MR. MAC MAHON: Excuse me, Your Honor, the document does speak for itself. 20 THE COURT: I recognize that, but it's a complex 21 case. I am letting documents be published. So overruled. 22 BY MR. OLSHAN: 23 Q. 24 this cover documents related to the defendant's work? 25 A. I'm not going to have you go through all of these. Does Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 44 of 259 PageID# 5917 Hunt - Direct 1200 1 Q. Did the defendant work on Iranian matters? 2 A. Yes. 3 Q. Did he work on a specific program related to the Iranian 4 nuclear program? 5 A. Yes. 6 Q. That's what we've been referring to as Classified Program 7 No. 1? 8 A. Yes. 9 Q. You served this subpoena on the defendant, put him on 10 notice of your investigation on June 16, 2006? 11 A. 12 target letter at the same time. 13 Q. 14 April and July; is that correct? 15 A. Of 2006, yes. 16 Q. Thank you, 2006. Yes, because in addition to the subpoena, we served him a And, Agent Hunt, this was between those two snapshots in 17 Now, the e-mail that was found in the April one and 18 not in the subsequent July and August was from approximately 19 how long -- or how many months or years prior to when you 20 actually executed the search warrant? 21 A. Three and a half. 22 Q. So from October 2006 back to March of 2003? 23 A. Yes. 24 Q. When you were reviewing those three batches, did you 25 observe any -- how would you characterize the difference in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 45 of 259 PageID# 5918 Hunt - Direct 1201 1 volume between batch 1 from April, batch 2 from July, and batch 2 3 from October? 3 A. I don't recall there being a considerable difference. 4 Q. Special Agent Hunt, were you involved in the analysis of a 5 computer obtained from John and Lora Dawson? 6 A. Yes. 7 Q. And when was that computer obtained from the Dawsons? 8 A. In August of 2006. 9 10 MR. OLSHAN: counsel? 11 THE COURT: 12 MR. OLSHAN: 13 Yes, sir. Your Honor, at this time, I'd like to read one of the stipulations. 14 THE COURT: 15 MR. OLSHAN: 16 THE COURT: 17 MR. OLSHAN: 18 May I have a moment to confer with Stipulation? Yes. Go ahead. It's not been marked yet. I believe it will be Government's Exhibit 174. 19 THE COURT: All right. Hold on one second, because 20 we have a 174 in the binder, but I don't think there's anything 21 behind it. It's blank. 22 All right, so 174 is stipulation number what? 23 MR. OLSHAN: 24 this will be Stipulation No. 11. 25 THE COURT: I knew you would ask me that. I think Okay. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 46 of 259 PageID# 5919 Hunt - Direct 1 MR. OLSHAN: 2 THE COURT: 3 MR. OLSHAN: 1202 May I? Yes. "The United States of America, through 4 its attorney, and the defendant, Jeffrey Alexander Sterling, 5 and the defendant's attorneys, hereby stipulate and agree that 6 if called to testify, John and Lora Dawson would testify 7 consistent with the following: 8 9 "From approximately August 2003 to approximately July 2004, the defendant lived in the home of John and Lora Dawson 10 at 6817 Crest Avenue, University City, St. Louis, Missouri. 11 one other than John and Lora Dawson, their infant child, and 12 the defendant lived at that address during that time. 13 defendant did not own a cell phone or personal computer during 14 that time. 15 No The "John and Lora Dawson permitted the defendant to use 16 the telephone at their residence, which during that entire time 17 was assigned the number 314-862-8850. 18 telephone to make and receive long distance telephone calls 19 while he lived with the Dawsons. 20 The defendant used that "From February 9, 2004, until June 11, 2004, 19 21 telephone calls were placed from 202-862-0300, the telephone 22 number for the Washington, D.C., office of The New York Times, 23 to 314-862-8850, the Dawsons' home telephone number, which is 24 reflected in Government Exhibit 98, page 3, call 8, through 25 page 8, call 25. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 47 of 259 PageID# 5920 Hunt - Direct 1203 1 "During this time, neither of the Dawsons knew anyone 2 who lived or worked in Washington, D.C., and the Dawsons had no 3 reason to receive calls from anyone at the Washington, D.C., 4 office or any other office of The New York Times. 5 "During the time the defendant resided with the 6 Dawsons, the Dawsons permitted the defendant to use a computer, 7 to wit: 8 containing Seagate hard drive ST33210A, bearing serial number 9 5AB11AEB, located in their spare bedroom, to send and receive a Packard Bell L100 bearing serial No. P493907180, 10 e-mails, and the defendant did, in fact, use the Dawsons' 11 computer to do so. 12 Dawsons and the defendant had access to the computer. 13 time did the Dawsons use the computer to send e-mails to or 14 receive e-mails from James Risen or anyone affiliated with The 15 New York Times." 16 During this time, no one other than the At no Thank you. 17 Q. Special Agent Hunt, were you involved in the analysis of 18 the computer that was just referenced in that stipulation? 19 A. Yes, I was. 20 Q. Can you describe for the jury what your involvement in 21 that analysis process was? 22 A. 23 analysis personnel within our office, and that request was 24 assigned to Reju Kurian, who testified yesterday, and we 25 basically provided a list of keywords, and we asked him to Yes. So my partner and I made a request of the computer Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 48 of 259 PageID# 5921 Hunt - Direct 1204 1 process the computer and search the entire computer for any 2 reference to any of the keywords on the list we provided to 3 him. 4 Q. 5 to do a keyword search? 6 A. Yes. 7 Q. And then what happened? 8 A. Initially, he used a tool called Forensic Toolkit. 9 believe he also used a tool called dtSearch, and that resulted What happened after -- did Mr. Kurian execute the request 10 in the location of the string that you saw in one of the 11 exhibits yesterday that said Q:\MERLIN\MERLIN.DOC. 12 Q. 13 which is that data? I If we could just briefly publish Government Exhibit 146, 14 The document at 146, this first page, that was a 15 result from that first part of Mr. Kurian's search? 16 A. 17 located on September 26, 2006. 18 Q. That's when you identified it? 19 A. I believe that's when Mr. Kurian completed his search and 20 located this data. 21 Q. 22 "Q:\MERLIN," etc. 23 document related to this string of data? 24 A. No. 25 Q. This was produced because it contained a particular That's correct. And I believe that this was actually Now, to be clear, Special Agent Hunt, this says, Do you know whether there was any actual Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 49 of 259 PageID# 5922 Hunt - Direct 1 1205 keyword? 2 MR. MAC MAHON: 3 BY MR. OLSHAN: 4 Q. Your Honor, objection to leading. Was there a -- 5 THE COURT: Sustained. 6 BY MR. OLSHAN: 7 Q. Was there a particular keyword that resulted in this hit? 8 A. Yes. 9 in the location of this data. When the keyword "Merlin" was searched, it resulted 10 Q. So if you could continue, after that search result, what 11 happened next? 12 A. 13 called EnCase to further analyze the data, and I believe he did 14 so on September 28, 2006, just two days after this. 15 Q. You say EnCase. 16 A. Yes. 17 Q. And did that -- did you give him search terms for that 18 analysis? 19 A. Yes. 20 Q. Did that search turn up any hits? 21 A. Yes. 22 Q. Did we talk about those yesterday? 23 A. Yes. 24 yesterday as well as some others that were not reviewed. 25 were all responsive to the keyword "Risen." Mr. Kurian said that he was going to use a different tool Is that spelled E-n-C-a-s-e? I believe he used the same list. It turned up the exhibits that were reviewed They Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 50 of 259 PageID# 5923 Hunt - Direct 1206 1 Q. So, for example, "Risen" is the same as "risen"? 2 A. That's correct. 3 Q. Were there hits that were not responsive to or not related 4 to your investigation? 5 A. 6 computer, and so we as the case agents had to go through and 7 review all of the data responsive to the search. 8 eliminate what was not relevant, and we had to highlight for 9 Mr. Kurian the hits that were relevant to our investigation. Yes. The word "risen" appeared in other parts of the 10 Q. 11 the computer? And did any of those hits come from unallocated space on 12 13 MR. MAC MAHON: THE COURT: We had an I think that's correct, so I'm going to sustain that objection. 16 17 Your Honor, I object. expert testify to this yesterday. 14 15 We had to MR. OLSHAN: Your Honor, I'm just laying a very simple background foundation. 18 THE COURT: I'm not -- Well, I think you should get to the 19 questions, and then if there's lack of foundation, you can go 20 back over it. 21 MR. OLSHAN: Fair enough. 22 Q. If you could take a look at Exhibit 117? Does 117, the 23 first two pages, reflect the proceeds of the search, or part of 24 the proceeds of Mr. Kurian's search? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 51 of 259 PageID# 5924 Hunt - Direct 1207 1 Q. And what was the keyword that resulted in this hit? 2 A. "Risen." 3 Q. Is that reflected at the top? 4 top four lines? 5 A. Yes. 6 Q. What did you do when you got this hit with "Risen" 7 appearing? 8 A. 9 bookmarked them or flagged them in some way for Mr. Kurian so 10 that he later could copy this data separately onto a separate 11 disc for us. 12 Q. And did he do that? 13 A. He did. 14 Q. And then what did you do with the data when it was copied 15 to a disc? 16 A. 17 the exhibit. 18 Q. And how did you go about reviewing this data? 19 A. I read it line by line. 20 Q. What were you looking for? 21 A. Well, when I initially saw the appearance of an e-mail 22 address that appeared to be one for James Risen, because the 23 e-mail address is Jrisen@aol.com, I scrolled down further 24 looking for text that might be part of a message. 25 Q. If we could zoom in on the How did you analyze this? Well, I believe with this and the other hits, we We reviewed it again, and we printed out what appears as Did you find any? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 52 of 259 PageID# 5925 Hunt - Direct 1208 1 A. I did. 2 Q. So if you could scroll to the bottom third of that page, 3 do you see a date? 4 A. Yes. 5 Q. And the time? 6 A. "2:29 p.m." 7 Q. Right below that, is there the word "To"? 8 A. Yes. 9 Q. And is there another e-mail address? 10 A. Yes, jsthe7th@hotmail.com. 11 Q. Reviewing this cluster data, did you find any content 12 that -- as you were analyzing? 13 A. Yes. 14 Q. Can you go to the next page? 15 content? 16 A. 17 january? 18 Q. 19 correct? 20 A. That's correct. 21 Q. Do you know his first name? 22 A. James, Jim. 23 Q. And does he go by "Jim"? 24 A. Yes. 25 Q. What did you do after you were able to extract these Were you able to to extract a date? "Tuesday, December 23, 2003." I do. Do you see any particular I see text that says, "can we get together in early jim." And Jrisen was the e-mail address on the first page, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 53 of 259 PageID# 5926 Hunt - Direct 1209 1 fragments of the message? 2 A. 3 contained the "From," "To," the sent date, and what appeared to 4 be the text of the message. 5 Q. Okay. 6 A. It appears to be another fragment. 7 Q. And did you analyze this one? 8 A. I did. 9 Q. And what did you locate in this fragment? 10 A. I see "From" and the e-mail address "Jrisen@aol.com." 11 Q. And just to be clear, that starts on the second line? 12 A. Yes, and it wraps around to the third. 13 Q. Keep going. 14 A. And then on the fourth line, I see a date, "Monday, 15 March 22, 2004." 16 Q. On that line, do you see the word "Sent"? 17 A. Yes. 18 Q. And the date again? 19 A. "Monday, March 22, 2004." 20 Q. The time? 21 A. On the following line, it says "12:52 p.m." 22 Q. And then below that, do you see "To" for a recipient? 23 A. Yes, "To jsthe7th@hotmail.com." 24 Q. Were you able to locate any content related to this data? 25 A. No. I prepared a summary, a summary document that only If we could go to Exhibit 119? What is that? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 54 of 259 PageID# 5927 Hunt - Direct 1210 1 Q. Go to 120. 2 A. I did. 3 Q. Again, do you see a "From"? 4 A. I do. 5 Q. Who is that from? 6 A. "From Jrisen@aol.com." 7 Q. Two lines later, "Sent"? 8 A. "Sent Thursday, May 6, 2004, 12:34 a.m." 9 Q. And "To"? 10 A. "To jsthe7th@hotmail.com." 11 Q. And if you could go ahead two pages in that exhibit, do 12 you see another fragment that's part of Exhibit 120? 13 Did you also examine this fragment? Flip ahead two pages in the same exhibit. 14 another fragment? 15 A. Do you see I do. 16 THE COURT: 17 MR. OLSHAN: 18 THE COURT: Wait, in Exhibit 120? Yes. So this is page 3 of Exhibit 120. All right. 19 BY MR. OLSHAN: 20 Q. Did you follow the same process, Agent Hunt? 21 A. I did. 22 Q. Just to step back, did you do this process for all of the 23 data that was produced to you by Mr. Kurian? 24 A. 25 searches. I did it for the data that was responsive to the keyword Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 55 of 259 PageID# 5928 Hunt - Direct 1211 1 Q. And what would -- how would you describe the volume of 2 information that you reviewed line by line? 3 A. Well -- 4 Q. You don't need to be specific. 5 A. Sure. 6 Q. Just characterize it. 7 A. Sure. 8 actually part of much larger files, and after these hits were 9 initially located, these responses to the keyword searches, I These, these extracts that appear as exhibits were 10 actually scrolled through some of this unallocated cluster 11 data, and I scrolled for possibly up to a hundred pages in 12 connection with what was -- in connection with the part of the 13 computer where just one of these hits was located. 14 I wanted to see if I could find any other relevant 15 data, and I could not, and at a, at a certain point, searching 16 any further in this sort of nonsensical script seemed to be 17 counterproductive. 18 Q. If you could locate that page, page 3 of Exhibit 120? 19 A. Yes. 20 Q. Did you employ that same process on this fragment? 21 A. Yes. 22 Q. And again, do you see on the first line "From"? 23 A. Yes. 24 Q. And what e-mail address follows that? 25 A. "From Jrisen@aol.com." Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 56 of 259 PageID# 5929 Hunt - Direct 1212 1 Q. And then two lines later, what else do you see? 2 A. "Sent Friday, May 7, 2004, 3:47 p.m." 3 Q. Two lines later, is there a recipient? 4 A. Yes, "To jsthe7th@hotmail.com." 5 Q. And again, were you able to locate when you continued to 6 review this any content that might be related to these -- to 7 this e-mail? 8 A. No. 9 Q. Keep going to Exhibit 121. 10 A. Yes. 11 Q. Do you see a "From" at the top of that? 12 A. I do. 13 Q. Again, what's the e-mail address? 14 A. "From Jrisen@aol.com." 15 Q. Scrolling down, do you see a, a date? 16 A. "Sent Saturday, May 8, 2004, 5:15 p.m." 17 Q. If we could zoom to the bottom half of that page? 18 Did you examine this fragment? I'm sorry, that was what? What was the date again? 19 A. "Sent Saturday, May 8, 2004, 5:15 p.m." 20 Q. And do you see a "To"? 21 A. I do. 22 Q. To whom was this addressed? 23 A. "To jsthe7th@hotmail.com." 24 Q. Were you able to locate any content for this? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 57 of 259 PageID# 5930 Hunt - Direct 1213 1 Q. On the second page of Exhibit 121? 2 A. Yes. 3 Q. What's written next to the word "SCRIPT," which is in 4 brackets about two-thirds of the way down? 5 A. 6 jim." 7 Q. 8 same process again for this fragment? 9 A. Yes. 10 Q. And does this reflect an e-mail from Mr. Risen? 11 A. Yes. 12 Q. Do you see "From"? 13 A. "From Jrisen@aol.com." 14 Q. What else do you see? 15 A. "Sent Sunday, May 16, 2004, 8:52 p.m., To 16 jsthe7th@hotmail.com." 17 Q. 18 locate any content? 19 A. Yes. 20 Q. Can you read that? 21 A. Yes. 22 really enjoy talking with you, and I would like to continue. 23 jim." 24 Q. 25 same process for this fragment? "I want to call today. I'm trying to write the story. If you could look at Exhibit 122? Did you follow that And about two-thirds of the way down the page, did you "I am sorry if I have failed you so far. Take a look at Government Exhibit 123. But I Did you follow the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 58 of 259 PageID# 5931 Hunt - Direct 1214 1 A. I did. 2 Q. What was the term you found at the top of this one? 3 A. "From Jrisen@aol.com." 4 Q. And were you able to locate when this was sent at the 5 bottom? 6 A. Yes. 7 Q. Do you see where it says "Sent"? 8 A. I do. 9 Q. Six lines up from the bottom? 10 A. Yes. 11 Q. What does it say after that? 12 A. "Sent Monday, May 17, 2004, 1:11 p.m." 13 Q. To? 14 A. "To jsthe7th@hotmail.com." 15 Q. Were you able to locate any content related to this 16 e-mail? 17 A. I was not. 18 Q. Let's go to 124. 19 that you had used in reviewing the other data for this 20 fragment? 21 A. Yes. 22 Q. And was the hit again "Jrisen," or "Risen"? 23 A. Yes. 24 Q. And at the top, do you see a "From" line? 25 A. Yes. Again, did you follow the same process "From Jrisen@aol.com." Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 59 of 259 PageID# 5932 Hunt - Direct 1215 1 Q. And then as you scroll down toward the middle of the page, 2 do you see a "Sent"? 3 A. Yes. 4 Q. Is there a reference to the "To" line? 5 A. Yes. 6 Q. Just to be clear, each of these that we've gone through 7 has "From," "Sent," and "To," correct? 8 A. Correct. 9 Q. And, I'm sorry, the "To" on this one was who -- was what? "Sent Thursday, June 10, 2004, 4:12 p.m." "To jsthe7th@hotmail.com." 10 What e-mail address was this to? 11 124. 12 A. "To jsthe7th@hotmail.com." 13 Q. And as you reviewed this cluster, were you able to locate 14 any content? 15 A. Yes. 16 Q. Appear on the next page of the exhibit, about a quarter of 17 the way down on the second page of that exhibit? 18 A. Yes. 19 Q. What was that content? 20 A. "I can get it to you. 21 Q. Now, if we could just go back to the first page, what was 22 the date on this fragment that you found? 23 A. The date was June 10, 2004. 24 Q. June 10, 2004. 25 It's on the first page of where can I send it?" Let's pause with the e-mails for a second. In the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 60 of 259 PageID# 5933 Hunt - Direct 1216 1 course of your investigation, did you obtain bank records or 2 credit card records for Mr. Risen? 3 A. Yes. 4 MR. OLSHAN: Your Honor, at this point, I'd like to 5 read a brief stip, stipulation. 6 THE COURT: 7 MR. OLSHAN: All right. And the number? This is Stipulation No. 1, Government's 8 Exhibit 161, which should be in the Court's binder in an 9 unexecuted form. 10 11 THE COURT: All right. So 161 is going into evidence, correct, counsel? 12 MR. OLSHAN: 13 THE COURT: 14 (Government's Exhibit No. 161 was received in 15 Yes. Yes? All right. evidence.) 16 MR. OLSHAN: 17 THE COURT: 18 MR. OLSHAN: May I read it, Your Honor? Yes. "Stipulation No. 1. The United States 19 of America, through its attorneys, and the defendant, Jeffrey 20 Alexander Sterling, and the defendant's attorneys, hereby 21 stipulate and agree as follows: 22 "The following documents are records of regularly 23 conducted activity within the meaning of Rule 803 of the 24 Federal Rules of Evidence and admissible at trial without 25 further authentication or identification:" Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 61 of 259 PageID# 5934 Hunt - Direct 1217 1 And then it lists Government's Exhibits 125 and 129. 2 THE COURT: 3 All right. being moved in at this point. So Exhibits 125 and 129 are Any objection? 4 MR. MAC MAHON: 5 THE COURT: 6 (Government's Exhibit Nos. 125 and 129 were received 7 No, Your Honor. All right, they're in. in evidence.) 8 MR. OLSHAN: If we could publish 125? 9 Q. Do you recognize that document, Special Agent Hunt? 10 A. I do. 11 Q. And what is that document? 12 A. This is a Bank One statement for James Risen. 13 Q. And does it list a series of charges on that Bank One 14 account? 15 A. It does. 16 Q. And have all but one been redacted? 17 A. Yes. 18 Q. What is the remaining charge? 19 that? 20 THE COURT: If we could zoom in on Now, let me just tell the jury because 21 we've had redactions in this case, this is not a national 22 security issue. 23 want them to know the difference. 24 25 This is just a privacy issue, all right? MR. OLSHAN: That's exactly right. So I Thank you, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 62 of 259 PageID# 5935 Hunt - Direct 1218 1 Q. That one line item -- 2 A. Yes. 3 Q. -- what does it say as the description of it? 4 A. I believe the date of the charge is June 28. 5 information indicates that the charge is for a FedEx shipment 6 on June 11, 2004, in the amount of $40.49. 7 Q. 8 124, with that fragment, was dated June 10, one day before? 9 A. That's correct. 10 Q. And that's the fragment that had, "I can get it to you. 11 where can I send it?" 12 A. And just to be clear, the last exhibit I had shown you, That's correct. 13 14 MR. MAC MAHON: Your Honor, excuse me, I think this says June 28, not June 10. 15 MR. OLSHAN: 16 THE COURT: 17 However, the The agent read the whole -If you read the whole "FEDEX SHP 6/11/04," that's what she's talking about. 18 MR. MAC MAHON: 19 THE COURT: Okay. Thank you, Your Honor. All right. 20 BY MR. OLSHAN: 21 Q. Is that correct, Agent Hunt? 22 A. That's correct. 23 a shipment on June 11, 2004. 24 Q. You're basing that on reviewing this record? 25 A. Yes. It appears to be a charge on June 28 for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 63 of 259 PageID# 5936 Hunt - Direct 1 1219 MR. OLSHAN: We can take that down. Thank you, 2 Mr. Francisco. 3 Q. 4 same process in analyzing this fragment? 5 A. I did. 6 Q. And what do you see in this fragment? 7 A. "From Jrisen@aol.com; Sent June 11, 2004, 11:59 a.m.; To 8 jsthe7th@hotmail.com." 9 Q. Go to 126. Again, Special Agent Hunt, did you use the And were you able to locate any content related to that 10 e-mail fragment? 11 A. No. 12 Q. If you could flip ahead two pages in the same exhibit, so 13 it's page 3 now, Exhibit 126? 14 15 Again, did you analyze that fragment? A. Yes. 16 MR. OLSHAN: 17 THE COURT: One moment, Your Honor? Yes, sir. 18 BY MR. OLSHAN: 19 Q. Did you analyze this fragment? 20 A. I did. 21 Q. And what did you find in this fragment? 22 A. "From Jrisen@aol.com; Sent June 11, 2004, 2:05 p.m.; To 23 jsthe7th@hotmail.com." 24 Q. 25 e-mail fragment? Again, were you able to locate any content related to that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 64 of 259 PageID# 5937 Hunt - Direct 1220 1 A. No. 2 Q. If you could skip ahead two more pages, same exhibit, so 3 it will be page 5 now of Exhibit 126? 4 fragment with the number "158." 5 A. I do. 6 Q. Did you use the same analysis? 7 A. Yes. 8 Q. If you could look at the bottom third or so of that 9 fragment, do you see -- what do you see there? There should be a Do you see that? What did you, 10 what did you find? 11 A. 12 2:23 p.m.; To jsthe7th@hotmail.com." 13 Q. 14 on June 11? 15 A. No. 16 Q. Two more pages, same exhibit, 126. 17 with "155" at the top? 18 A. I do. 19 Q. And again, if you could review the bottom third of that 20 fragment, do you see -- what do you see there when you analyzed 21 it? 22 A. 23 p.m., To jsthe7th@hotmail.com." 24 Q. Any content located for that fragment? 25 A. No. I see, "From Jrisen@aol.com; Sent Friday, June 11, 2004, Again, did you find any content for that e-mail fragment Do you see a fragment "From Jrisen@aol.com; Sent Friday, June 11, 2004, 3:36 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 65 of 259 PageID# 5938 Hunt - Direct 1221 1 Q. Last one in this batch, two more pages forward, please, in 2 Exhibit 126, do you see a fragment with the number "154"? 3 A. I do. 4 Q. And did you analyze that the same way you'd analyzed all 5 the other ones we've talked about? 6 A. Yes. 7 Q. And what did you find in that fragment? 8 A. "From Jrisen@aol.com; Sent Sunday, June 13, 2004, 12:33 9 p.m.; To jsthe7th@hotmail.com." 10 Q. Any other -- any content found when you did that? 11 A. No. 12 MR. OLSHAN: Your Honor, I actually think I'm done 13 with that topic for now. 14 to break? 15 THE COURT: If this would be an appropriate time All right, it seems to be the magic hour, 16 11:05. 17 jury 20 minutes, so we'll start back up again at 25 after. That's where we were yesterday, too. I'll give the 18 And, Agent Hunt, you need to be back then. 19 (Recess from 11:05 a.m., until 11:28 a.m.) 20 (Defendant and Jury present.) 21 THE COURT: 22 MR. OLSHAN: All right, Mr. Olshan? Thank you. 23 Q. 24 about e-mails that you were able to recover, correct? 25 A. Special Agent Hunt, I believe when we left off, we talked Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 66 of 259 PageID# 5939 Hunt - Direct 1222 1 Q. During the course of your investigation, did you obtain 2 phone records for the defendant, Jeffrey Sterling? 3 A. I did. 4 Q. Did those include phone records from when he resided at 5 13455 Farm Crest Court, in Herndon, Virginia? 6 A. Yes. 7 Q. When did he live there? 8 A. He lived there from sometime in the year 2000, when he 9 returned from New York, until August of 2003. 10 Q. How do you know that he no longer resided there after 11 August of 2003? 12 A. 13 them -- Because the Dawsons told the FBI that he came to live with 14 15 MR. MAC MAHON: That's hearsay and beyond the scope of the stipulation. 16 THE COURT: 17 MR. OLSHAN: 18 Your Honor, I object. Sustained. Your Honor, that's fine. stipulation makes it clear. 19 THE COURT: The I'll move on. Sustained. 20 BY MR. OLSHAN: 21 Q. 22 Dawsons for a period of time? 23 A. After August of 2003, did the defendant live with the Yes. 24 THE COURT: 25 THE WITNESS: And that was in Missouri? Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 67 of 259 PageID# 5940 Hunt - Direct 1223 1 BY MR. OLSHAN: 2 Q. 3 2004? 4 A. Yes. 5 Q. After July 2004, when the defendant left the Dawsons' home 6 in Missouri, where did he go? 7 A. 8 O'Fallon, Missouri. 9 Q. That was approximately August 2003 to approximately July He went to live with his then girlfriend/now wife in You testified that you obtained phone records for the 10 defendant? 11 A. Yes. 12 Q. Does that include phone records related to each of those 13 locations where he lived? 14 A. Not exactly. 15 Q. Explain. 16 A. I -- 17 Q. I'm sorry, I'll start over. 18 you get phone records for his landline phone in Virginia? 19 A. Yes. 20 Q. Were you aware of whether he had a cell phone at the time? 21 A. I did not know of any cell phone he used when he was in 22 Virginia. 23 Q. And did you obtain phone records for his time in Missouri? 24 A. Yes. 25 Q. Did that include both home and business phone records? What phone records did you get? For what phone numbers -- did Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 68 of 259 PageID# 5941 Hunt - Direct 1224 1 A. Those records included records for the landline at the 2 Dawsons' residence, his work number at Blue Cross-Blue Shield, 3 and a cellular telephone number he used at that time. 4 Q. In Missouri? 5 A. In Missouri. 6 7 MR. OLSHAN: Your Honor, at this time, I'd like to read Stipulation No. 3, which is Exhibit 163. 8 THE COURT: 9 (Government's Exhibit No. 163 was received in 10 All right, 163 is in evidence. evidence.) 11 MR. OLSHAN: "The United States, through its 12 attorneys, and the defendant, Jeffrey Alexander Sterling, and 13 the defendant's attorneys, stipulate and agree that telephone 14 records reflect that the following 47 telephone calls occurred 15 between the listed phone numbers at the specified dates and 16 times and for the listed duration:" 17 18 Your Honor, I'm not going to read the list of 47 phone calls that are contained in the stipulation. 19 THE COURT: 20 MR. OLSHAN: 21 But they're listed in Exhibit 163? They are. And they're also referenced in the next exhibit that I'm going to show the witness. 22 THE COURT: 23 BY MR. OLSHAN: 24 Q. 25 98? All right. Special Agent Hunt, if you could take a look at Exhibit Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 69 of 259 PageID# 5942 Hunt - Direct 1 2 1225 With the assistance of the court security officer? Thank you, sir. 3 Agent Hunt, you testified that you obtained phone 4 records for the defendant, correct? 5 A. Yes. 6 Q. Did you also obtain subscriber information to -- for 7 Mr. Risen and phone numbers associated with him? 8 A. Yes. 9 Q. Government's Exhibit 98, did you have a hand in creating 10 that? 11 A. I created it. 12 Q. And generally, what is, what is this? 13 A. This exhibit is a chart I created summarizing the 14 telephone calls between Jeffrey Sterling and James Risen, and 15 it also includes summary information related to the e-mails 16 that we discussed that are other exhibits. 17 Q. 18 but also who the relevant subscribers were? 19 A. Yes. 20 Q. And the phone records that you reviewed in creating this 21 document, were they voluminous? 22 A. 23 Does it also make reference not just to the phone calls Yes. MR. OLSHAN: Your Honor, at this time, we would offer 24 Government's Exhibit 98. 25 MR. MAC MAHON: Your Honor, we object. This isn't a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 70 of 259 PageID# 5943 Hunt - Direct 1226 1 summary under 1001. 2 Dawsons and to the place in Virginia, and then this just 3 intersperses, it's more argument than it is a summary. 4 We stipulated to the calls both as to the THE COURT: Well, it's not uncommon in a complex case 5 with voluminous records for either party to introduce charts or 6 summaries that help the jury work their way through the 7 evidence, but ultimately, the value of any chart or summary 8 must be evaluated in terms of the underlying data. 9 chart or summary is not accurately reflecting the data, you 10 should disregard the chart. 11 12 No, I'm going to permit it in as a reasonable aid for the jury. 13 MR. OLSHAN: 14 THE COURT: 15 Thank you. So over the objection of defense, 98 is in. 16 17 If the (Government's Exhibit No. 98 was received in evidence.) 18 MR. OLSHAN: If we could publish the first page of 19 Exhibit 98? 20 Q. 21 includes phone records, subscriber information, and e-mail 22 content, correct? 23 A. Yes. 24 Q. Is it arranged chronologically? 25 A. Yes. Special Agent Hunt, you testified that this summary chart Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 71 of 259 PageID# 5944 Hunt - Direct 1227 1 Q. What is the first entry? 2 A. The first entry indicates a telephone call from the number 3 affiliated with Jeffrey Sterling's residence to a number 4 affiliated with James Risen's residence on February 27, 2003, 5 at 8:03 p.m., with a duration of 50 seconds. 6 Q. 7 between numbers associated with Mr. Sterling and numbers 8 associated with Mr. Risen? 9 A. Was that the first telephone contact you were able to find Yes. 10 MR. OLSHAN: Your Honor, we'd like to move in a 11 series of exhibits. It's not by stipulation; there's just no 12 objection from defense. 13 THE COURT: 14 MR. OLSHAN: And what are they? At this time, I think we'd like to move 15 in -- or we would like to move in Government's Exhibits 48 16 through 51. 17 18 THE COURT: All right, hold on a second so I can get the book. 19 MR. OLSHAN: 20 THE COURT: 21 And there's no objection to these? 22 MR. MAC MAHON: 23 THE COURT: 24 25 Sure. Wait a minute. No, Your Honor. All right, 48 through 51, they're in. Go ahead. (Government's Exhibit Nos. 48 thru 51 were received Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 72 of 259 PageID# 5945 Hunt - Direct 1 in evidence.) 2 3 1228 MR. OLSHAN: 54 through 58, I believe they're not in yet. 4 THE COURT: 5 MR. MAC MAHON: 6 THE COURT: 7 MR. MAC MAHON: 8 No objection, Your Honor. 9 THE COURT: 10 I'm looking through them, Your Honor. All right. Court's indulgence? All right, 54 through and including 58 are in. 11 12 Any objection? (Government's Exhibit Nos. 54 thru 58 were received in evidence.) 13 MR. OLSHAN: 14 MR. MAC MAHON: 15 THE COURT: 16 (Government's Exhibit Nos. 61 thru 63 were received 17 61 through 63. No objection, Your Honor. All right, they're in. in evidence.) 18 MR. OLSHAN: 19 MR. MAC MAHON: 20 THE COURT: 21 (Government's Exhibit Nos. 73 and 74 were received in 22 73 and 74. No objection. All right, they're in. evidence.) 23 MR. OLSHAN: 24 THE COURT: 25 MR. OLSHAN: A couple more. Go ahead. 65, 66. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 73 of 259 PageID# 5946 Hunt - Direct 1229 1 MR. MAC MAHON: 2 THE COURT: 3 (Government's Exhibit Nos. 65 and 66 were received in 4 All right, they're in. evidence.) 5 MR. OLSHAN: 6 MR. MAC MAHON: 7 THE COURT: 8 MR. MAC MAHON: 9 THE COURT: 10 11 No objection, Your Honor. 77. Just a second, Your Honor. It's the other book. That's a summons. No objection to 77, Your Honor. All right. (Government's Exhibit No. 77 was received in evidence.) 12 MR. OLSHAN: 13 THE COURT: 14 MR. OLSHAN: 15 MR. MAC MAHON: 16 THE COURT: 17 (Government's Exhibit Nos. 94 thru 96 were received 18 94 to 96. I'm sorry, 94 to 96? Yes. All right, they're in. in evidence.) 19 MR. OLSHAN: 20 MR. MAC MAHON: 21 No objection, Your Honor. And then the last two are 118 and 130. No objection to either of those either, Your Honor. 22 THE COURT: 23 (Government's Exhibit Nos. 118 and 130 were received 24 25 All right, they're in. in evidence.) MR. OLSHAN: Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 74 of 259 PageID# 5947 Hunt - Direct 1230 1 Q. Special Agent Hunt, you testified that the first phone 2 call you found and that's reflected in Exhibit 98 was on 3 March -- excuse me, February 27, 2003. 4 A. Yes. 5 Q. In the course of your investigation, did you become 6 familiar with the defendant's litigation involving the CIA? 7 A. I did. 8 Q. And during the course of that litigation, were there a 9 series of settlement offers extended by either Mr. Sterling or 10 his lawyers? 11 A. Yes. 12 Q. If you can take a look at Exhibit 96, which should be in 13 the same binder? 14 Actually, I apologize, 95. Does that document reflect a settlement offer from 15 lawyers representing Mr. Sterling? 16 A. Yes. 17 Q. And if we could zoom in on the bottom paragraph of that? 18 Actually, quickly, it says what date at the top? 19 A. January 27, 2002. 20 Q. Do you believe that's a typo, or is that correct as far as 21 the year? 22 A. 23 there's a reference to 7 February 2003. 24 Q. And is there a fax header at the top of this exhibit? 25 A. Yes. I believe the year is 2003, because on the second page, It says "January 27, '03." Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 75 of 259 PageID# 5948 Hunt - Direct 1231 1 Q. Do you have any reason to believe this was not transmitted 2 on January 7, 2003? 3 A. No. 4 Q. And if we could zoom in on the second paragraph, does it 5 state -- does this letter state a settlement offer? 6 A. It does. 7 Q. Can you read that paragraph? 8 A. The second paragraph? 9 Q. Yes, please. 10 A. "Mr. Sterling is willing to voluntarily dismiss his 11 lawsuit in exchange for payment of $200,000 plus attorneys' 12 fees and costs; a favorable employment recommendation and/or 13 statement, the language of which is to be negotiated in good 14 faith; and the government's consent to unseal Judge Schwartz's 15 decision (following its declassification, of course)." 16 Q. That's fine. 17 A. Correct. 18 Q. If you could look at 96? 19 letter from Mr. Sterling's lawyers? 20 A. Yes, yes. 21 Q. What's the date of that? 22 A. 12 February 2003. 23 Q. And if you could read the first two paragraphs? 24 25 This was January 27, 2003, correct? Does that appear to be another Actually, I apologize, could you just read the first paragraph? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 76 of 259 PageID# 5949 Hunt - Direct 1232 1 A. "I write in reference to my client's settlement offer 2 conveyed to you by my letter dated 27 January 2003. 3 settlement offer expired Friday, 7 February 2003." 4 Q. This letter is dated February 12, correct? 5 A. Yes, 2003. 6 Q. And approximately how many days from this letter about the 7 lapse of the settlement offer until that first phone call to 8 Mr. Sterling -- excuse me, between Mr. Sterling's phone and 9 Mr. Risen's phone? The 10 A. Roughly two weeks. 11 Q. You testified that in, sometime in 2000 through August 12 2003, the defendant resided in Herndon. 13 A. Yes. 14 Q. Do you know if he was employed during that time? 15 A. Well, he was employed by the CIA until January 31, 2002. 16 Q. Thank you. 17 Is that correct? After that, was he employed? 18 A. He was not as far as I know. 19 Q. If we could go to the first page of Exhibit 98, please? 20 Do you see the second entry? 21 A. I do. 22 Q. Is that the e-mail, does that reference the e-mail that 23 was obtained pursuant to the search warrant in October of 2006? 24 A. Yes. 25 Q. If you could, the bottom of that first page, the second It's a reference to the March 10, 2003 e-mail. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 77 of 259 PageID# 5950 Hunt - Direct 1233 1 call, what's the date? 2 A. March 10, 2003. 3 Q. This is a very short call? 4 A. Yes, six seconds. 5 Q. And who are the parties to that call? 6 A. The call was made from the landline at Jeffrey Sterling's 7 residence to the landline at James Risen's residence. 8 Q. 9 through 7? If you could flip the page and look at calls or -- calls 3 On the left column, does that designate call 10 numbers if there's a number listed there? 11 A. That's correct. 12 Q. So calls 3 through 7, what month did those take place? 13 A. They took place in March of 2003. 14 Q. And, for example, the third call, that's March 10, 2003? 15 A. Yes. 16 Q. How many days after the defendant's meeting with the 17 Senate was that call? 18 A. Five. 19 Q. I apologize if I already asked you this: 20 the calls on that page occurred when the defendant lived in 21 Virginia? 22 A. Yes. 23 Q. They're all from his landline or involve his landline? 24 A. They're all from his landline in Herndon, Virginia. 25 Q. And who's originating those calls? The remainder of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 78 of 259 PageID# 5951 Hunt - Direct 1234 1 A. Jeffrey Sterling. 2 Q. To James Risen's phone numbers? 3 A. To James Risen's phone numbers. 4 Q. If you could flip to page 3 of the chart? 5 Does the first line refer to the e-mail you were able 6 to extract from that data we discussed before? 7 A. 8 23, 2003, that said, "can we get together in early january? 9 jim." Yes. The first line refers to the e-mail dated December 10 Q. Now, if you could, I'm going to take you through these a 11 little bit quicker, Special Agent Hunt. 12 flip through and take a look at those. 13 Calls 8 through 21, Do those all involve the same originating phone 14 number? 15 A. They do. 16 Q. And what originating phone number is that? 17 A. It is the telephone number for the office of The New York 18 Times in Washington, D.C. 19 Q. And what's the terminating phone number? 20 A. The terminating phone number, or the number where the call 21 was received, is the number for the residence of Lora and John 22 Dawson in St. Louis, Missouri. 23 Q. 24 on, 8 through 21? 25 A. And what's the span of dates for the ones that we focused February 9, 2004, to April 22, 2004. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 79 of 259 PageID# 5952 Hunt - Direct 1235 1 Q. So a series of calls over approximately two-and-a-half 2 months in 2004? 3 A. Yes. 4 Q. And again, are some of those short? 5 A. Yes. 6 Q. Let me direct your attention to page 5 of this exhibit. 7 Call 18, do you see that call? 8 A. I do. 9 Q. What's the duration of that call? 10 A. 24 minutes and 58 seconds. 11 Q. And again, that's from The New York Times to the Dawsons' 12 residence? 13 A. That's correct. 14 Q. And if you flip the page to page 6, do you see call 21? 15 A. I do. 16 Q. The duration of that call? 17 A. 4 minutes and 42 seconds. 18 Q. Following that, do you see a series of the e-mail 19 extracts? 20 A. Yes. 21 Q. Is it fair to say that during the course of this phone 22 communication, there's interspersed e-mail traffic based on 23 your analysis? 24 A. Yes, that was my conclusion. 25 Q. E-mail F on page 6? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 80 of 259 PageID# 5953 Hunt - Direct 1236 1 A. Yes. 2 Q. From May 8, 2004, what does that one say? 3 A. "I want to call today. 4 jim." 5 number again." 6 Q. 7 of e-mails and phone calls in May of 2004? 8 A. Yes. 9 Q. Again, did that -- do they involve contact -- the phone I'm trying to write the story And it also included text that said, "I need your phone If you could flip to the next page? Do you see a series 10 calls, do they involve contact between The New York Times and 11 the Dawsons' residence? 12 A. Yes. 13 Q. How long is call No. 23 and call No. 24? 14 A. Call No. 23 on May 12, 2004, was 10 minutes and 9 seconds. 15 Q. Call 24? 16 A. Call 24, which occurred on May 25, 2004, was 7 minutes and 17 52 seconds. 18 Q. 19 7-minute-52-second call, did you find an e-mail for that date? 20 A. Yes. 21 Q. What did it say? 22 A. It said, "I am sorry if I have failed you so far. 23 really enjoy talking with you, and I would like to continue. 24 jim." 25 Q. And on May 16, about nine days before that If you could flip to the next page, page 8? But I Does the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 81 of 259 PageID# 5954 Hunt - Direct 1237 1 series of phone calls and e-mail contact continue? 2 A. Yes. 3 Q. And this is late May through mid-June 2004? 4 A. Yes. 5 Q. If you could flip to page 9? 6 find phone traffic between phone numbers associated with 7 Mr. Risen and/or The New York Times and Mr. Sterling's work 8 numbers at Blue Cross in Missouri? 9 A. Yes. 10 Q. Is that reflected in calls 27, 28, and 29, on page 9? 11 A. Yes. 12 Q. Flipping to page 10, calls 30 and 31, did they also 13 involve contact with the defendant's work phone? 14 A. 15 residential number. 16 Q. What's call 31? 17 A. The duration is 3 minutes and 2 seconds. 18 occurred on July 8, 2004. 19 Q. And it was from Mr. Risen's personal residence? 20 A. Correct. 21 Q. What does call 32 reflect? 22 A. Call 32 on November 6, 2004, reflects a one-minute 23 telephone call from a cellular telephone used by Jeffrey 24 Sterling to a residential number for James Risen. 25 Q. At a certain point, did you Yes, from The New York Times and from James Risen's What's the duration of that? It's a call that Over the course of this period, there are multiple calls Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 82 of 259 PageID# 5955 Hunt - Direct 1238 1 between multiple phone numbers for both men? 2 A. Correct. 3 Q. If you could flip to page 11 and look at call 33, is that 4 from February 14, 2005? 5 A. It is. 6 Q. What's the duration of that call? 7 A. 35 minutes and 57 seconds. 8 Q. And who are the parties to that? 9 A. The call was made from the number for The New York Times' 10 office in Washington, D.C., to Jeffrey Sterling's number at 11 Blue Cross-Blue Shield in Missouri. 12 Q. 13 Hunt, how long did the communication or the phone traffic last 14 according to this chart between phone numbers associated with 15 Mr. Sterling and phone numbers associated with Mr. Risen? 16 A. 17 2005, from a cellular telephone number used by James Risen to a 18 cellular telephone number used by Jeffrey Sterling. 19 Q. 20 published? 21 A. Yes. 22 Q. And when was it published? 23 A. January of 2006. 24 Q. The book started shipping in December of '05? 25 A. I believe so. If you could flip from page 11 through to page 14? Agent The last relevant call I found was a call on November 20, 11/20/2005. Are you aware when State of War was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 83 of 259 PageID# 5956 Hunt - Direct 1239 1 Q. What does that last entry in the chart reflect? 2 A. The last entry provides a date range of November 21, 2005, 3 to May 8, 2007, and indicates that during phone records 4 collected for that time period, no calls were found between 5 James Risen and Jeffrey Sterling. 6 Q. 7 out to sometime in mid-2007, no phone calls? So from the period of about a month before the book came 8 9 MR. MAC MAHON: He asked what the dates were. 10 11 Your Honor, objection. MR. OLSHAN: I'm clarifying this for the jury, Your Honor. 12 THE COURT: I'm, I'm going to permit that. 13 Overruled. 14 BY MR. OLSHAN: 15 Q. 16 State of War was published through the middle of 2007, how many 17 calls did you find between Mr. Sterling and Mr. Risen? 18 A. None. 19 Q. If you could go to the first binder and look at Exhibit 20 59, which is already in evidence? 21 document? 22 A. I do. 23 Q. Is this a performance assessment report, or PAR, for 24 Mr. Sterling? 25 A. So the question was from approximately one month before Do you recognize this Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 84 of 259 PageID# 5957 Hunt - Direct 1240 1 Q. And is this a version that was provided to Mr., 2 Mr. Sterling in the course of his EEO litigation? 3 A. Yes. 4 Q. And this document was unclassified when provided to 5 Mr. Sterling? 6 A. Yes. 7 MR. OLSHAN: 8 THE COURT: 9 May I confer with counsel? Go ahead. BY MR. OLSHAN: 10 Q. Just to clarify, Agent Hunt, the version that appears as a 11 trial version, does this contain substitutions? 12 A. Yes, it does. 13 Q. Otherwise, is this document the same version that 14 Mr. Sterling received in unclassified form during the EEO 15 litigation? 16 A. Yes. 17 Q. I hate to do this to you. 18 Mr. Francisco, if we could just pull up on the screen Exhibit 19 83, which is already in evidence? 20 If you could -- actually, Special Agent Hunt, do you recognize this newspaper 21 article? 22 A. I do. 23 Q. And does language from Exhibit 59 appear in Exhibit 83? 24 A. Yes. 25 MR. OLSHAN: May I have one moment, Your Honor? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 85 of 259 PageID# 5958 Hunt - Direct 1 THE COURT: 1241 Yes, sir. 2 BY MR. OLSHAN: 3 Q. 4 quoted in the newspaper article? 5 A. Yes. 6 Q. Have you read chapter 9 of State of War? 7 A. Yes. 8 Q. If you could take a look at Exhibit 60? 9 front of you? And in Exhibit 83, was that language from Exhibit 59 Do you have 60 in 10 A. I do. 11 Q. One thing to just clarify very quickly: 12 name that appears on the first page says "Samuel L. Crawford." 13 Is that correct? 14 A. That's correct. 15 Q. What's your understanding of who that person is? 16 A. My understanding is that that was a pseudonym used for 17 Jeffrey Sterling. 18 Q. For purposes of the EEO process? 19 A. Yes. 20 THE COURT: But not necessarily the name that he was 21 using at the CIA, is that right? 22 THE WITNESS: 23 THE COURT: 24 25 59 and 60, the That's my understanding. So this was a name that was substituted the way we've substituted Merlin? MR. OLSHAN: No, this is specifically, if the witness Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 86 of 259 PageID# 5959 Hunt - Direct 1242 1 knows, was this name specifically substituted for purposes of 2 giving him a name in the EEO process? 3 THE WITNESS: Yes. 4 BY MR. OLSHAN: 5 Q. Not for trial purposes? 6 A. That's correct. 7 Q. So the version that Mr. Sterling received of these 8 exhibits said "Samuel L. Crawford"? 9 A. Yes, it did. 10 Q. You testified that you have read State of War? 11 A. Yes. 12 Q. Chapter 9? 13 A. Yes. 14 15 THE COURT: right? I'm sure she's read it several times, all Let's move this along. 16 (Laughter.) 17 MR. OLSHAN: I know that's the fact, Your Honor. 18 Q. Is there language that appears in Exhibit 60 that is also 19 quoted in chapter 9? 20 A. Yes. 21 Q. Right. 22 contains substitutions for trial purposes, correct? 23 substitutions for trial purposes? 24 A. That's correct. 25 Q. But the original version of Exhibit 60 that was provided And just, just to be clear, Exhibit 60 contains, Some Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 87 of 259 PageID# 5960 Hunt - Direct 1243 1 to the defendant was unclassified? 2 A. That's correct. 3 Q. You've reviewed the performance assessment, the PAR that 4 appears at Exhibit 60, correct? 5 A. Yes. 6 Q. Have you reviewed the original version of that? 7 A. Yes. 8 Q. The original version that was provided to Mr. Sterling 9 during the course of his employment? 10 A. Yes. 11 Q. And the one that was provided to him in the course of the 12 EEO process? 13 A. Yes. 14 Q. Do any of those documents, either version, make any 15 reference to this specific classified program or to Merlin? 16 A. Yes. 17 Q. Is the language that appears in the original version 18 specifically connected to an asset or a program? 19 MR. MAC MAHON: Your Honor, I object. If they're not 20 going to put the document in evidence, there's no way to 21 cross-examine. 22 23 THE COURT: I think this is too vague. I'm going to sustain the objection. 24 MR. OLSHAN: That's fine. I'll leave that. 25 Your Honor, at this time, I've got two more Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 88 of 259 PageID# 5961 Hunt - Direct 1 1244 stipulations. 2 THE COURT: 3 MR. OLSHAN: All right. This is Stipulation No. 7, and it's 4 Exhibit 167: 5 the defendant, Jeffrey Alexander Sterling, and the defendant's 6 attorneys, hereby stipulate and agree that the following 7 exhibits may be admitted at trial without further 8 authentication or identification: 9 10 11 12 "The United States, through its attorneys, and "Exhibit 128, Exhibit 132, and Exhibit -- Defense Exhibit 1." Your Honor, for the record, both 132 and Defense Exhibit 1 are already in. 13 THE COURT: 14 MR. OLSHAN: 15 16 All right. "The parties further agree that a representative from Simon & Schuster would testify as follows: "The document contained in Government's Exhibit 128 17 was submitted to Simon & Schuster by James Risen in or about 18 September 2004. 19 and the Bush Administration, by James Risen, was published in 20 or about December 2005." 21 State of War: The Secret History of the CIA This is Stipulation No. 10. It would be Government's 22 Exhibit 173: "The United States, through its attorneys, and 23 the defendant, Jeffrey Alexander Sterling, and the defendant's 24 attorneys, hereby stipulate and agree that if called as a 25 witness at trial, James Risen would testify as follows: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 89 of 259 PageID# 5962 Hunt - Direct 1 1245 "Mr. Risen is the author of the book State of War, 2 which was published by Simon & Schuster in 2006. 3 unidentified or unnamed sources for the information contained 4 in chapter 9 of State of War. 5 accurately reflects information Mr. Risen obtained from a wide 6 range of sources, including information from unnamed sources, 7 information from public sources, and information from his own 8 research. 9 Mr. Risen had Chapter 9 of State of War "If asked by either the United States or the defense, 10 Mr. Risen would refuse to identify who was or was not an 11 unnamed source for any information set forth in chapter 9 of 12 State of War. 13 "If asked by either the United States or the defense, 14 Mr. Risen would refuse to identify who was or was not an 15 unnamed source for any of his other writings, including 16 newspaper articles." 17 If we could publish Exhibit 129? 18 Q. Special Agent Hunt, you testified that you reviewed 19 Mr. Risen's bank records; is that correct? 20 A. Yes. 21 Q. Did you locate any specific charges related to a trip to 22 Vienna? 23 A. I did. 24 Q. And does Exhibit 9 -- 129 also reflect, similar to 125, a 25 Bank One credit card statement? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 90 of 259 PageID# 5963 Hunt - Direct 1246 1 A. Yes. 2 Q. And what are the charges that have not been redacted from 3 this document? 4 A. 5 at the Inter-Continental Vienna. 6 Q. 7 see -- 8 A. 2004. 9 Q. And do you see another charge? 10 A. Yes. 11 Inter-Continental Vienna. 12 Q. 13 during the operation in February 2000? 14 A. Yes. 15 Q. If you could take a look at Exhibit 128? 16 There is a charge dated 11/17, November 17. And that's 11/17 of what year? It's a charge Up at the top, do you A second charge on November 21, 2004, also at And do you know where it was that Merlin stayed in Vienna He stayed at the Inter-Continental Vienna. THE COURT: Now, I will tell you that the Exhibit 129 17 in the Court's book did not have redactions on it to the same 18 extent of what was shown on the screen, so I want to make sure 19 that the physical exhibits that are going to go to the jury are 20 absolutely consistent with what they're being shown in court. 21 MR. OLSHAN: They will be, Your Honor. We may have 22 passed it up. 23 will get and what's being shown are the versions that are -- 24 25 If we didn't, I apologize, but what the jury THE COURT: Agent Hunt, as you look through that book, because that's the book that's going to go to the jury, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 91 of 259 PageID# 5964 Hunt - Direct 1 1247 does 129 look exactly like the screen did? 2 THE WITNESS: 3 THE COURT: 4 THE WITNESS: 5 THE COURT: 6 I'm sorry, now, 128? 7 MR. OLSHAN: 8 Yes. It's redacted. Completely other than those two lines? Yes. All right, okay. 128. Based on the stipulation, we'd move -- we would move 128 in. 9 THE COURT: I assume there's no objection? 10 MR. MAC MAHON: No objection, Your Honor. 11 THE COURT: 12 (Government's Exhibit No. 128 was received in All right, it's in. 13 evidence.) 14 BY MR. OLSHAN: 15 Q. Special Agent Hunt, what is Exhibit 128? 16 A. Exhibit 128 is a book proposal we received from Simon & 17 Schuster. 18 Q. 19 redacted? 20 A. Yes. 21 Q. And, for example, on that first page, where it says, it 22 looks like a stamp, "Redacted"? 23 A. Yes. 24 Q. Wherever that appeared throughout the document, to your 25 knowledge, who applied those redactions? And if you flip through, is most of this document Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 92 of 259 PageID# 5965 Hunt - Direct 1248 1 A. Simon & Schuster. 2 Q. Is there a portion of this document related to or that 3 describes Classified Program No. 1 and Merlin? 4 A. Yes, beginning on the fourth page. 5 Q. If we could move to that, that page? 6 first sentence which runs onto the second page? 7 A. 8 scientist who had earlier defected to the United States, posed 9 as an unemployed and greedy scientist willing to sell nuclear Can you read the "Under Merlin, True First Name, a Russian nuclear 10 designs to the highest bidder." 11 Q. 12 words "Merlin" -- the word "Merlin" and the phrase "True First 13 Name," were those substitutions for use at trial? 14 A. Yes. 15 Q. Have you reviewed the original document that was produced 16 by Simon & Schuster? 17 A. I have. 18 Q. And what is the word that appears beneath, without saying 19 it, how would you describe the word that is beneath "True First 20 Name"? 21 A. The word -- 22 Q. I'll ask a different way. 23 A. The word in the original was the true first name of the 24 asset we're referring to as Merlin. 25 Q. If you could go back to that first page, the In the course of your investigation, you learned what the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 93 of 259 PageID# 5966 Hunt - Direct 1249 1 true first name was? 2 A. I did. 3 Q. Can you continue reading on page 2, where it starts 4 with "Under CIA orders"? 5 A. 6 officials in Vienna and turned over the nuclear blueprints. 7 Within days, the National Security Agency, which secretly 8 eavesdrops on all international airline reservations systems, 9 watched as an Iranian official in Vienna abruptly left Austria "Under CIA orders, True First Name approached Iranian 10 and returned home to Iran. 11 source that the blueprints were being kept in a highly secure 12 place in the Iranian facility where scientists are working on a 13 nuclear weapon. 14 The CIA later learned from another "CIA officers involved in the operation have come to 15 the author to discuss the case because they now feel enormous 16 guilt for a program that they believe has aided Iran's nuclear 17 program. 18 will explain how and why the CIA mounted such a dangerous 19 operation." 20 Q. 21 in this, this document that would -- is there anything else in 22 this document? 23 A. 24 Schuster. 25 Q. This book will provide the full details of Merlin and Other than those couple paragraphs, is there anything else No. The remainder of the document was redacted by Simon & And just for the record, based on the stipulation, this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 94 of 259 PageID# 5967 Hunt - Direct 1250 1 was a document that was submitted to Simon & Schuster in 2 September 2004? 3 A. That's my understanding. 4 Q. During the course of your investigation, did you review 5 records from Barnes & Noble? 6 A. Yes. 7 MR. OLSHAN: 8 THE COURT: 9 10 One moment, Your Honor. Yes, sir. BY MR. OLSHAN: Q. Can you take a look at Exhibit 131? 11 THE COURT: Is there a question? 12 BY MR. OLSHAN: 13 Q. Do you have that in front of you? 14 A. Yes. 15 Q. Do those appear to be Barnes & Noble records? 16 A. Yes. 17 MR. OLSHAN: We would offer those. 18 THE COURT: 19 MR. MAC MAHON: 20 THE COURT: 21 (Government's Exhibit No. 131 was received in Any objection? No objection, Your Honor. All right, 131 is in. 22 evidence.) 23 BY MR. OLSHAN: 24 Q. 25 says "Total Sales, Maximum On Hand & On Order," Special Agent If we could zoom in on the first portion, down to where it Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 95 of 259 PageID# 5968 Hunt - Direct 1251 1 Hunt, generally speaking, what do these records reflect? 2 A. 3 State of War that were located in various Barnes & Noble stores 4 in the Eastern District of Virginia. 5 Q. 6 Boulevard in Arlington, correct? 7 A. That's correct. 8 Q. And then the next set is Clarendon Boulevard in Arlington? 9 A. Correct. 10 Q. And the third is Tysons Corner in McLean? 11 A. Yes. These records reflect the number of copies of the book So for example, the first set is for a location on Wilson 12 MR. OLSHAN: If you could zoom in on the first batch? 13 Thank you. 14 Q. 15 "Sales Units"? 16 A. Yes. 17 Q. Does that reflect books being sold? 18 A. I believe so. 19 Q. And in particular, this is for the Wilson Boulevard 20 location? 21 A. Yes. 22 Q. What does the column read for the week ending January 7, 23 '06, sales units? 24 A. I'm sorry, which week? 25 Q. The week ending January 7, '06. Do you see in the column towards the right where it says Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 96 of 259 PageID# 5969 Hunt - Direct 1252 1 A. On hand units, 45. 2 Q. What does it say for sales units? 3 A. Five. 4 Q. And if you can go down to the summary there, total sales, 5 maximum on hand and on order, what does it say for sales units? 6 A. Nineteen. 7 Q. And then going to the next store, Clarendon Boulevard, 8 during the relevant period of time, how many sales units were 9 there total for that store? 10 A. Seventy. 11 Q. The next one, Tysons Corner, on page 2, what's the total 12 for sales units? 13 A. Seventy-two. 14 Q. Fountain Drive, the next one? 15 A. Ninety-two. 16 Q. Does this Exhibit 131 contain similar data for other 17 locations in the Eastern District of Virginia? 18 A. Yes. 19 Q. Are you familiar with Government's Exhibits 142, 143, 144, 20 which were shown to the jury but not published? 21 A. Yes. 22 Q. And Exhibit 145 as well? 23 binder. 24 A. Yes. 25 Q. Were those documents obtained from a search of the You can look at 145 in your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 97 of 259 PageID# 5970 Hunt - Direct 1253 1 defendant's home? 2 A. Yes, in October of 2006. 3 Q. And where was that home located? 4 A. O'Fallon, Missouri. 5 Q. By the time of that search in October of 2006, how much 6 time had passed since the defendant had access to the CIA, or 7 CIA facility? 8 A. More than four-and-a-half years. 9 Q. And between his last stint at the CIA and where these 10 documents were recovered when they were recovered, had he lived 11 in one place or multiple places? 12 A. Multiple places. 13 Q. These were found in his residence in O'Fallon? 14 A. Yes. 15 16 MR. MAC MAHON: answered. 17 18 Your Honor, that's asked and MR. OLSHAN: That's all I had on that topic, Your Honor. 19 THE COURT: 20 BY MR. OLSHAN: 21 Q. All right, overruled. If you could look at Exhibit 73? 22 THE COURT: That's in the first binder. 23 MR. OLSHAN: 24 This is already in evidence, Your Honor. 25 THE COURT: In the first binder. I'm sorry? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 98 of 259 PageID# 5971 Hunt - Direct 1 MR. OLSHAN: 2 THE COURT: 1254 It's already in evidence. All right. 3 BY MR. OLSHAN: 4 Q. Do you have the document? 5 A. I do. 6 Q. And what is 73? 7 If you can publish that? Thank you. 8 A. It's entitled in the subject line: "Second Appeal of the 9 Recommendation of the Personnel Evaluation Board/Employee 10 Review Panel." 11 Q. And what is the purpose of this? 12 A. The purpose of this document was to inform Jeffrey 13 Sterling of the fact that his appeal had been denied and that 14 his employment with the CIA was being terminated. 15 Q. This is dated October 31, 2001? 16 A. That's correct. 17 Q. If you could take a look at Government Exhibit 75? 18 see the newspaper article in 75? 19 A. Yes. 20 Q. Does that newspaper -- is that written by Mr. Risen? 21 A. Yes. 22 Q. And does that newspaper article reference unnamed sources 23 for the fact that a CIA office was destroyed on 9/11? 24 A. Yes. 25 Q. How many days after Mr. Sterling was notified that he was Do you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 99 of 259 PageID# 5972 Hunt - Direct 1255 1 being terminated did this story run? 2 A. Four. 3 Q. And just to be clear, Agent Hunt, after the defendant 4 received that notification on October 31, 2001, did he continue 5 on a term basis with the CIA for a period of time? 6 A. That's my understanding. 7 Q. And that was through end of January 2002? 8 A. Yes. 9 MR. OLSHAN: 10 THE COURT: 11 MR. OLSHAN: 12 May have a moment, Your Honor? Yes, sir. One more minute, Your Honor. apologize. 13 One more stip, Your Honor? 14 THE COURT: 15 MR. OLSHAN: 16 THE COURT: This is Stipulation No. 8, Government All right. I assume it's in then. It's a stipulation. 19 20 Yes, sir. Exhibit 168. 17 18 I (Government's Exhibit No. 168 was received in evidence.) 21 MR. OLSHAN: "The United States, through its 22 attorneys, and the defendant, Jeffrey Alexander Sterling, and 23 the defendant's attorneys, hereby stipulate and agree as 24 follows: 25 "The following documents are records of regularly Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 100 of 259 PageID# 5973 Hunt - Direct 1256 1 conducted activity within the meaning of Rule 803 of the 2 Federal Rules of Evidence and admissible at trial without 3 further authentication or identification: 4 "Exhibit 131. 5 "A representative from Barnes & Noble would testify 6 that on or about December 24, 2005, Barnes & Noble shipped 7 copies of State of War: 8 Bush Administration, by James Risen, from New Jersey via 9 commercial carrier to the Eastern District of Virginia, where The Secret History of the CIA and the 10 they were made available for sale at Barnes & Noble retail 11 locations." 12 Q. 13 have you had a chance to review what's been marked as 14 Government's Exhibit 132B? 15 A. Yes. 16 Q. Do you have a copy with you? 17 A. I do. Special Agent Hunt, you might not have it up there, but 18 THE COURT: 19 it's not in the book. 20 MR. OLSHAN: 21 THE COURT: Now, that's not up here, or if it is, May I pass it up, Your Honor? Go ahead. 22 BY MR. OLSHAN: 23 Q. You're familiar with this exhibit? 24 A. I am. 25 Q. And what is 132B? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 101 of 259 PageID# 5974 Hunt - Direct 1257 1 A. 132B is a photocopy of chapter 9 from State of War, but 2 anything in the chapter that's not related to Classified 3 Program 1 has been removed. 4 Q. So, for example -- 5 6 MR. MAC MAHON: this exhibit coming in. 7 THE COURT: 8 MR. MAC MAHON: 9 Your Honor, if I may, we object to substitute. And the basis for the objection? It's not a summary. It's nothing that's admissible. It's not a It's just taking 10 the same chapter and deleting the information that the agent 11 has decided to do, but we heard testimony from Bob that he's 12 the one that did this in the first place, and it's misleading 13 to the jury. 14 evidence. 15 They can get the whole chapter. THE COURT: It's already in I think the best evidence is the entire 16 chapter. I mean, again, the jury instruction you even 17 submitted suggested that, you know, you were submitting the 18 entire chapter so the jury would have a complete picture. 19 I'm going to sustain that objection. 20 MR. OLSHAN: 21 THE COURT: Your Honor -You can argue how the jury should look at 22 the exhibit. 23 not going to have it go in like this. 24 25 So That's perfectly proper for both sides, but I'm MR. OLSHAN: to have it admitted. Your Honor, I wasn't even going to ask I was going to ask to use it as a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 102 of 259 PageID# 5975 Hunt - Direct 1 1258 demonstrative with this witness. 2 THE COURT: 3 MR. OLSHAN: 4 THE COURT: Just during her testimony? Correct. That's all right. It's not going to go 5 back to the jury. So 132B will not go into evidence. 6 BY MR. OLSHAN: 7 Q. You've had a chance to review this? 8 A. Yes. 9 Q. And any paragraph that does not relate to Mr. -- to Merlin 10 or Classified Program No. 1 has been removed from this 11 demonstrative exhibit? 12 A. That's correct. 13 Q. And if you could just very briefly tell the jury which 14 paragraphs have been removed? 15 A. Paragraphs 1 through 6, paragraph 29. 16 Q. 1 through 6, 29. 17 A. Paragraph 29 -- paragraphs 29 through 34. 18 Q. 29 through 34. 19 A. Most of paragraph 40, paragraph 73, paragraph 75, 20 paragraphs 77 and 78, paragraphs 80 through 82, paragraphs 89 21 through 91, and paragraphs 95 through 117. 22 Q. 23 the end of the chapter? 24 A. 25 Now, paragraphs 95 through 117, that's page 212 through Yes. MR. OLSHAN: One moment, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 103 of 259 PageID# 5976 Hunt - Direct 1259 1 Q. 2 assessment, PAR -- 3 A. Yes. 4 Q. -- that contains language that is quoted in the chapter? 5 A. Yes. 6 Q. The PAR itself, does it have the word "Merlin" anywhere in 7 it? 8 A. No. 9 Q. Does it identify the classified program that we've been 10 Going back briefly to Exhibit 60, it's that performance dealing with? 11 12 MR. MAC MAHON: Your Honor, this is asked and answered several times, going through the same documents. 13 MR. OLSHAN: 14 THE COURT: I just have two more questions. I'll allow two more questions but no 15 more. 16 BY MR. OLSHAN: 17 Q. 18 reference to Classified Program 1 or Merlin? The question was does the PAR in any version make 19 20 MR. MAC MAHON: 23 In a version the jury can't even see, Your Honor. 21 22 The same objection. THE COURT: Overruled. Let's continue this. Go ahead. THE WITNESS: No. There's no reference to Merlin or 24 Classified Program No. 1 in this PAR by name. 25 BY MR. OLSHAN: By name. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 104 of 259 PageID# 5977 Hunt - Direct 1260 1 Q. The only connection to this is in the book? 2 A. That's correct. 3 MR. MAC MAHON: 4 THE COURT: 5 leading. 6 BY MR. OLSHAN: 7 Q. 8 operation and Merlin? Wait, wait, wait, wait. Does the book connect the language in the PAR to the MR. MAC MAHON: Your Honor, that's asked and answered now two or three times. 11 THE COURT: 12 MR. OLSHAN: 13 That's all I have. 14 THE COURT: 15 That was Sustained. 9 10 Your Honor, objection. I'm going to sustain the objection. One moment? All right. Cross-examination, Mr. MacMahon? 16 MR. TRUMP: Wait, sorry. 17 THE COURT: Wait, was there anything else? 18 MR. OLSHAN: 19 stipulation. 20 21 I apologize, there is one other MR. MAC MAHON: May I remain standing, Your Honor? I'm sorry. 22 THE COURT: 23 MR. MAC MAHON: 24 BY MR. OLSHAN: 25 Q. Yes, you may. Thank you. Special Agent Hunt, during your review of the defendant's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 105 of 259 PageID# 5978 Hunt - Direct 1261 1 phone records, did you identify records of calls between 2 Mr. Sterling and other members of the media or news outlets? 3 A. I did. 4 Q. And in particular, was there a specific member of the 5 media, a person? 6 A. Yes. 7 Q. Who was that? 8 A. Ronald Kessler. 9 Q. And the -- and anything else? 10 A. The LA Times. 11 12 MR. OLSHAN: Found it. Anyone else or any entity? I believe this is Stipulation No. 12, and it will be Government's Exhibit 174 -- 5, 175. 13 THE COURT: 14 (Government's Exhibit No. 175 was received in 15 16 All right, it's in. evidence.) MR. OLSHAN: "The United States, through its 17 attorneys, and the defendant, Jeffrey Alexander Sterling, and 18 the defendant's attorneys, hereby stipulate and agree that 19 business records reflect the following: 20 "During 2003, Ronald Kessler of Potomac, Maryland, 21 was the subscriber for Telephone No. 301-279-5818. 22 2003, the telephone number for the Washington, D.C., office of 23 the Los Angeles Times was 202-293-4650. 24 for the office was 800-528-4637. 25 During The toll free number "The parties further stipulate and agree that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 106 of 259 PageID# 5979 Hunt - Direct 1262 1 telephone records reflect that the following ten telephone 2 calls occurred between the listed phone numbers at the 3 specified dates and times and for the listed duration." 4 I want to read this, Your Honor. 5 THE COURT: 6 MR. OLSHAN: Go ahead. "Call 1, April 9, 2003, Wednesday; time, 7 2:21 p.m.; duration, 23 seconds; originating number, 8 703-793-9388; terminating number, 301-279-5818. 9 "Call 2, also April 9, 3 p.m., 36-second duration; 10 originating number, 703-793-9388; terminating number, 11 301-279-5818. 12 13 "Also April 9, 4:14 p.m., 13-second call; originating number, 703-793-9388; terminating number 301-279-5818." 14 That's the first three calls, Your Honor. Those 15 involve the number for Mr. Kessler. 16 involve numbers for the LA Times. 17 proffer, the jury will have this document, the originating 18 number for the remaining calls and all of the calls is the 19 defendant's landline, 703-793-9388; and the terminating number 20 for calls 4 through 10 is either the, is either the 800 number 21 for the LA Times or their office in D.C. 22 23 The remaining seven calls I'll just go ahead and Your Honor, I notice there's an issue with this document. I haven't had a chance to discuss it with counsel. 24 THE COURT: 25 MR. OLSHAN: All right. So we may need to resubmit a different Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 107 of 259 PageID# 5980 Hunt - Cross 1 version of this. 2 3 1263 I'll confer with counsel. THE COURT: All right. Is there anything further for Agent Hunt? 4 MR. OLSHAN: No, Your Honor. 5 THE COURT: 6 MR. MAC MAHON: 7 THE COURT: All right. Excuse me, Your Honor. That's all right. 8 over the lunch break, all right? 9 MR. OLSHAN: 10 So sort that issue out Very well. CROSS-EXAMINATION 11 BY MR. MAC MAHON: 12 Q. Special Agent Hunt, how are you? 13 A. Good. 14 Q. Good afternoon. 15 How are you? The calls to Mr. Kessler that are set forth in the 16 stipulation, four calls: 23 seconds, 36 seconds, 13 seconds, 17 and 46 seconds, correct? 18 A. I don't know. 19 Q. Did you ever ask Mr. Kessler if he ever spoke to 20 Mr. Sterling? 21 A. I did not. 22 Q. You didn't bother to ask him? 23 A. No. 24 Q. So you can't tell the jury because you never even asked 25 what it is that Mr. Sterling may have talked about with I don't have it in front of me. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 108 of 259 PageID# 5981 Hunt - Cross 1264 1 Mr. Kessler, correct? 2 A. I cannot. 3 Q. Right. 4 calls are to the LA Times, you don't know who they were to, 5 what was discussed, or anything else, right? 6 A. That's correct. 7 Q. Right. 8 his discrimination case, that Mr. Sterling was very interested 9 in his discrimination case, correct? And the same would be that whatever these other And you know that in this -- from the beginning of 10 A. Can you repeat the question? 11 Q. Well, Mr. Sterling had a discrimination case against the 12 CIA, correct? 13 A. Yes. 14 Q. And that went on for a long time, didn't it? 15 A. Yes. 16 Q. Okay. 17 because he spoke to Mr. Risen in a public story about his 18 discrimination case, correct? 19 A. I could speculate that that's the case. 20 Q. He was interested in getting publicity about his 21 discrimination case, correct? 22 A. I don't know. 23 Q. Well, you never asked Mr. Risen, did you? 24 A. No. 25 Q. And when was Mr. Sterling's discrimination case finally And you know that Mr. Sterling was interested You'd have to ask him. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 109 of 259 PageID# 5982 Hunt - Cross 1265 1 dismissed? 2 A. 3 that the Supreme Court denied cert in early 2006. 4 Q. 5 correct? 6 A. I think so. 7 Q. Right. I think it may have been -- well, I'm not sure. 2006. It was ongoing all the way up through 2006, And do you remember why the case was dismissed? 8 MR. OLSHAN: 9 MR. MAC MAHON: 10 Objection. Irrelevant. He brought up the issue of the case, Your Honor. 11 THE COURT: 12 brought the case up. 13 I'm going to overrule the objection. THE WITNESS: 14 BY MR. MAC MAHON: 15 Q. 16 I think I did not study that. Did you read the Fourth Circuit opinion that said that -MR. OLSHAN: Objection, Your Honor. The legal 17 reasoning for a court upholding a decision or rejecting a 18 decision is not relevant to this case. 19 20 21 You MR. MAC MAHON: Let me ask a question a different way, Your Honor. THE COURT: Well, let me hear the question without -- 22 now, if it's a leading question, you're going to be, you know, 23 making a statement, and I don't want the jury to hear an 24 improper statement. 25 MR. MAC MAHON: I will do my best, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 110 of 259 PageID# 5983 Hunt - Cross 1 Q. 1266 The CIA invoked the national security privilege -- 2 MR. OLSHAN: 3 BY MR. MAC MAHON: 4 Q. Objection, Your Honor. -- to have Mr. -- 5 THE COURT: Wait, wait, wait, wait, wait, wait, wait, 6 wait, wait, wait. 7 and this is a very attentive jury, that when lawyers make 8 statements, that's not any evidence, all right? 9 first thing. 10 Look, the jury has been told multiple times, That's the Number two, it needs to be relevant to this case. I don't think the details of the lawsuit or certainly 11 not the legal rulings in the lawsuit are appropriate or 12 relevant. 13 sustain the objection, all right? It's wasting the jury's time. So I'm going to 14 MR. MAC MAHON: Your Honor, with respect -- 15 THE COURT: 16 going on for a period of time. 17 to get into the details of why one court in a totally separate 18 case made certain types of rulings or what positions the 19 parties took is not relevant to this case. Wait. 20 MR. MAC MAHON: 21 THE COURT: It's relevant that the case was That's not inappropriate, but Thank you, Your Honor. All right. 22 BY MR. MAC MAHON: 23 Q. 24 testified that PARs were all classified, correct? 25 that testimony? Agent Hunt, you, you were here in court when people Did you hear Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 111 of 259 PageID# 5984 Hunt - Cross 1267 1 A. I did. 2 Q. All right. 3 that PARs were classified documents, correct? 4 A. Yes. 5 Q. And the two exhibits, I think they're 59 and 60, were 6 completely declassified when they were given to Mr. Sterling, 7 correct? 8 A. Yes. 9 Q. There was no prohibition on him just giving those You heard multiple witnesses tell this jury 10 documents to anybody if he felt it would help his 11 discrimination case, was there? 12 A. 13 of instruction, and without it in front of me, I couldn't tell 14 you what it was. 15 Q. 16 declassified and given to his uncleared lawyer, correct? 17 A. 18 not. 19 Q. 20 weren't they? 21 A. I'm not sure. 22 Q. And they were filed correctly? 23 an unclassified version, correct? 24 A. 25 answer these questions. I don't know. I believe that the CIA gave him some sort But you don't disagree that they were completely I don't know if his lawyer had a clearance at the time or Well, they were given to his civil lawyer in New York, The two PARs were filed in Without documentation in front of me, I can't really Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 112 of 259 PageID# 5985 Hunt - Cross 1268 1 Q. All right. 2 chapter 132 to show the jury the documents. 3 4 You, you testified that you made edits to If we could put up 132, page 93, please? The first page, please, Mr. Francisco. 5 And the next page, please? 6 This is a, this is a page that you redacted from your 7 analysis of the case? 8 A. 9 of the pages, paragraphs that have been redacted. I did not do the analysis, but yes, it is one of the, one 10 Q. Right. 11 in on -- excuse me, zoom in on paragraph 1, please. 12 And this, and this -- if we could focus on, hook This part of State of War deals with something that 13 happened in 2004, correct? 14 A. That's what the book says. 15 Q. And Mr. Sterling wasn't there at that time, was he? 16 A. At the CIA? 17 Q. No. 18 A. No. 19 Q. He wasn't, was he? 20 And if we could go to page 207, please? 21 paragraphs 73 and 74? 22 A. Yes. 23 Q. Did you redact those two paragraphs as well? 24 25 MR. OLSHAN: And Your Honor, if Mr. MacMahon is going to have the witness go back and forth between the demonstrative Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 113 of 259 PageID# 5986 Hunt - Cross 1 1269 and what's in evidence, we'd ask to move the demonstrative in. 2 THE COURT: 3 MR. MAC MAHON: 4 Your Honor, she's testified as to what paragraphs she took out. 5 6 No. THE COURT: No, we're not, we're not going to move the demonstrative in. 7 THE WITNESS: I did not make the redactions, but 73 8 has been redacted; 74 has not. 9 BY MR. MAC MAHON: 10 Q. Okay. And you know that the part in 73 is information 11 from sitting through this trial that was never given to 12 Mr. Sterling at all, correct? 13 MR. OLSHAN: 14 getting a little bit close here. 15 THE COURT: Objection, Your Honor. I think we're I think, Mr. MacMahon, this is not 16 appropriate. I mean, this whole issue about redacting or 17 editing the chapter, I think, is improper, and I don't think 18 the government should have gotten into it. 19 of worms, so I'm going to close it and just tell the jury to 20 disregard this whole line of testimony. 21 the case. So you opened a can It's not relevant to 22 The issue in this case is whether any of the 23 information that's been discussed, that is, concerning 24 Operation No. 1 or Merlin, is in the book, all right? 25 All right, go ahead. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 114 of 259 PageID# 5987 Hunt - Cross 1 1270 MR. MAC MAHON: I will, Your Honor, but -- I'll move 2 along. The Court's ruled. 3 Q. 4 the subpoena to testify in front of a grand jury that you 5 served on Mr. Sterling? 6 A. Yes. 7 Q. All right. 8 document, he was also showing you an e-mail that Mr. Sterling 9 sent to Mr. Risen in 2003, correct? Let's look at Exhibit 139, if you would, please, which is And when Mr. Olshan was showing you a 10 A. Yes, on March 10. 11 Q. All right. 12 A. There was a link to a CNN article in the e-mail. 13 Q. Right. 14 A. No. 15 Q. And that article didn't talk at all about anything that 16 Mr. Sterling ever did at the CIA, did it? 17 A. No. 18 Q. And who drafted the rider? 19 subpoena. 20 A. No. 21 Q. Now, you -- there's nothing in this rider that asks 22 Mr. Sterling to preserve any correspondence with James Risen, 23 is there? 24 A. No. 25 Q. Well, that was the focus of your investigation, wasn't it? And it was a CNN article, correct? And that article wasn't classified, was it? Let's look at page 2 of the Did you draft this? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 115 of 259 PageID# 5988 Hunt - Cross 1271 1 A. The focus of the investigation was the unauthorized 2 disclosure of national defense information. 3 Q. To Mr. Risen, correct? 4 A. Yes. 5 Q. In the attachment to the subpoena to Mr. Sterling, nobody 6 thought to put, "Preserve any communications you may have with 7 James Risen," correct? 8 9 MR. OLSHAN: Objection. The witness has already testified she didn't draft the document. 10 THE COURT: Well, she's been asked to testify about 11 it. I mean, but frankly, the jury can read it as well. It's 12 not there. 13 BY MR. MAC MAHON: 14 Q. 15 Mr. Sterling's house, you didn't find any classified documents 16 whatsoever dealing with Merlin at all, did you? 17 A. No. 18 Q. And you didn't find any documents dealing with Classified 19 Program No. 1 at all, correct? 20 A. That's correct. 21 Q. Did you, did you tell the grand jury -- or, excuse me, the 22 jury that there was a -- you found a FedEx receipt of 23 Mr. Risen's? 24 showed a FedEx receipt? 25 A. Let's move this along. Did you -- when you executed this search warrant on It's one of, one of his credit card records that A FedEx charge, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 116 of 259 PageID# 5989 Hunt - Cross 1 Q. 1272 A FedEx charge. 2 You wouldn't want to mislead the jury as to what that 3 was, would you, ma'am? 4 A. I wouldn't want to mislead them about anything. 5 Q. Right. 6 FedEx records of Mr. Risen, hadn't you? 7 A. Yes. 8 Q. Right. 9 dealing with Mr. Risen and his wife, correct? And you, you had actually served subpoenas for the And you served -- and you received FedEx records 10 A. I don't recall exactly what was in the records. 11 have to review them. 12 Q. You asked for FedEx records just for Mr. Risen, correct? 13 A. I would have to look at the records. 14 Q. Well, you did get FedEx receipts from Mr. -- showing 15 communication between Mr. Risen and his lawyers, right? 16 MR. OLSHAN: 17 THE COURT: 18 MR. OLSHAN: 19 MR. MAC MAHON: 20 I would Objection, Your Honor. What's the basis for the objection? It's not relevant. Let me -- I'll ask it a different way. 21 THE COURT: All right. 22 BY MR. MAC MAHON: 23 Q. 24 you could find, whether they were Mr. Sterling, Mr. Risen, or 25 Mr. Risen's wife, right? You did a thorough request of FedEx for all FedEx receipts Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 117 of 259 PageID# 5990 Hunt - Cross 1 A. 1273 I would have to look back at my original request to FedEx. 2 THE COURT: You have it -- you've got papers in your 3 hand, Mr. MacMahon. 4 BY MR. MAC MAHON: 5 Q. 6 ma'am, you do not have the FedEx receipt or charge you showed 7 the jury on that credit card, you don't have any evidence that 8 that was a FedEx that was sent from Mr. Risen to Mr. Sterling, 9 do you? I don't want to put all these in evidence. The point, 10 A. I do not. 11 Q. And you don't even know if it has anything to do with this 12 case, do you? 13 A. I do not. 14 Q. And again, you got all Mr. Sterling's FedEx records, 15 right? 16 MR. OLSHAN: 17 THE COURT: 18 BY MR. MAC MAHON: 19 A. Objection. I think you've made your point. And you didn't find any communication -- 20 THE COURT: 21 MR. MAC MAHON: 22 THE COURT: 23 you've made your point on that. 24 25 Asked, asked and answered. Mr. MacMahon, there was an objection. I'm sorry, Your Honor. I'm sustaining the objection because MR. MAC MAHON: Well, I just wanted to take it a little further, Your Honor, with respect to what was received, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 118 of 259 PageID# 5991 Hunt - Cross 1274 1 which is that you received all -- you didn't find any FedEx 2 transactions whatsoever between Mr. Sterling and Mr. Risen, 3 correct? 4 THE WITNESS: I did not, but FedEx no longer had the 5 underlying records for the FedEx shipment that was made on 6 June 11, 2004. 7 response to my request. 8 BY MR. MAC MAHON: 9 Q. So you don't know what it was? 10 A. I don't. 11 Q. Did you receive any FedEx receipts back into 2004 from 12 FedEx? 13 A. I would have to look back at the date of my request. 14 Q. When did you request the records? 15 A. Without the record in front of me, I cannot recall. 16 I do recall is that FedEx only maintained records for a certain 17 time period, and going back, they -- the records for the 18 shipment on June 11, 2004, did not fall within the time period 19 of what they had still maintained in their records at the point 20 of my request. 21 Q. 22 to or from, either, right? 23 A. That's correct. 24 Q. And you found no communication written of any form between 25 Mr. Sterling and Mr. Risen that relates to any classified They could not provide me with that data in What And the credit card records don't show who it was a FedEx Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 119 of 259 PageID# 5992 Hunt - Cross 1275 1 information at all, do you? 2 A. 3 they're referring. 4 Q. 5 that you found and pasted back together between Mr. Risen and 6 Mr. Sterling, correct? 7 A. That's correct. 8 Q. And Exhibit 124, which you, which you put up for the jury, 9 that's Mr. Risen offering to send something to Mr. Sterling, The communications I did find, I'm not sure to what But there's no classified information in any communication 10 correct? 11 A. Yes. 12 Q. And you don't know -- have any idea what that is, right? 13 A. I don't. 14 Q. You don't even know if he ever sent him anything, do you? 15 A. I don't. 16 Q. I mean, you don't know, you can't testify today that 17 Mr. Sterling ever gave any classified documents to Mr. Risen 18 whatsoever, correct? 19 A. That's correct. 20 Q. And you can't say where, if at all, Mr. Risen or 21 Mr. Sterling ever talked about classified matters, correct? 22 A. 23 records. 24 Q. 25 about, do they, ma'am? I'm not certain. I can only make deductions from phone The phone records don't tell you what people are talking Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 120 of 259 PageID# 5993 Hunt - Cross 1276 1 A. They don't. 2 Q. And speaking of phone records, you never got Bob's phone 3 records at all, did you? 4 A. I did not. 5 Q. You originally said that you had, and then you looked back 6 and found that you didn't, right? 7 A. 8 years ago, and I don't know where all the documents related to 9 this case are located in this office. I thought that I had. I left for another assignment three 10 Q. But, ma'am, you knew that Bob was somebody who's quoted in 11 Mr. Risen's article in one way or another, isn't he? 12 A. I don't know that he's quoted. 13 Q. Well, he's certainly attributed in the book, isn't he? 14 Information that's attributed to him is set forth in State of 15 War? 16 A. One could say that he is described in the chapter. 17 Q. And one way to tell the jury that Bob and Mr. Risen ever 18 talked would have been to get Bob's phone records, right? 19 20 MR. OLSHAN: This is argument. 21 22 Objection, Your Honor. THE COURT: permit it. 23 No, I don't think so. I'm going to Overruled. THE WITNESS: 24 BY MR. MAC MAHON: 25 Q. Yes. And do you remember telling Merlin that if he could think Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 121 of 259 PageID# 5994 Hunt - Cross 1277 1 of anything to talk about about the Classified Program No. 1 2 and the leak, to go -- have him tell Bob? 3 A. I do not recall that. 4 Q. Did you ever, did you ever ask Bob for any of his e-mails? 5 A. What e-mails? 6 Q. Any e-mails. 7 accounts at all? 8 A. No. 9 Q. You never got any of Mr. Risen's e-mails, right? 10 A. Only the ones that we have described as having been 11 recovered from the computer from the Dawsons. 12 Q. No other e-mails at all, right? 13 A. No. 14 Q. And you never analyzed any of the hard drives of 15 Mr. Risen's, correct? 16 A. I didn't have the permission to do that. 17 Q. And you didn't analyze any of the hard drive or e-mails of 18 Ms. Divoll or anyone else at the Senate, right? 19 A. I did not. 20 Q. And Mr. Duhnke didn't ever talk to you, did he? 21 A. Briefly. 22 Q. He didn't talk to you in any detail about what happened 23 after Mr. Sterling was up at the Senate, correct? 24 A. That's correct. 25 Q. "He didn't cooperate" was your exact words, correct? Did you ask to look at any of his e-mail Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 122 of 259 PageID# 5995 Hunt - Cross 1278 1 A. I don't know if those were my exact words. 2 Q. You don't have any information that shows if Mr. Sterling 3 or Mr. Risen ever met in person, correct? 4 A. 5 that they did. 6 Q. 7 all, correct? 8 A. I do not. 9 Q. And Mr. Risen lives in Maryland, right? 10 A. Yes. 11 Q. And his office is in D.C.? 12 A. Yes. 13 Q. You have no witness that says that Mr. Sterling ever left 14 the CIA with a soft file, correct? 15 A. Correct. 16 Q. There's no witness that says Mr. Sterling printed up 17 cables about Classified Program No. 1 and took them home, 18 correct? I have information suggesting they did, but I do not know Right. And you don't know if they did, where they met at 19 MR. OLSHAN: 20 MR. MAC MAHON: 21 THE COURT: 22 fair game. Objection, Your Honor. The, the scope of the investigation is I'm permitting it. 23 MR. OLSHAN: 24 THE WITNESS: 25 She's the case agent, Your Honor. Overruled. Fair enough. Could you repeat the question? BY MR. MAC MAHON: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 123 of 259 PageID# 5996 Hunt - Cross 1279 1 Q. You have no witness that saw Mr. Sterling leave the CIA 2 with any classified documents, correct? 3 A. Correct. 4 Q. You have no witness that said that Mr. Sterling ever 5 printed a classified document or took it home, correct? 6 A. Correct. 7 Q. And the, the letter that's in the book, you don't have a 8 copy even of that letter, do you? 9 A. Not in, not in its exact form. 10 Q. All right. 11 in Mr. Sterling's possession at any time, do you? 12 A. No. 13 Q. You have no information as to why Merlin is accurately 14 quoted in the book, correct? 15 A. 16 know the origin of the quotes. 17 Q. 18 he couldn't account for how he came to be quoted in the book, 19 correct? 20 A. I believe that's correct. 21 Q. You have no information how it is that the information 22 about Merlin using a newspaper appears in Mr. Sterling's -- in 23 Mr. Risen's book, correct? 24 A. I do not. 25 Q. Because it's not in any CIA report that, for example, And you have no copy of that letter that was I don't know that he's accurately quoted, but I do not Right. And Merlin told you when you interviewed him that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 124 of 259 PageID# 5997 Hunt - Cross 1280 1 Mr. Sterling may have printed, correct? 2 A. That's correct. 3 Q. The same with the postman, correct? 4 A. That's correct. 5 Q. And the same with Sonoma, correct? 6 A. That's correct. 7 Q. And you heard Mr. Harlow testify that Mr. Risen had 8 additional information that he didn't have on his first call 9 when he called the CIA the second time, correct? 10 11 MR. OLSHAN: Objection. That wasn't the testimony, Your Honor. 12 THE COURT: Sustained. 13 BY MR. MAC MAHON: 14 Q. 15 information, that Mr. Risen indicated there was different 16 information on the second call than he had on the first call? Did you hear Mr. Harlow say that he had additional 17 MR. OLSHAN: 18 THE COURT: 19 Objection. Wait, wait, wait, wait. I'm going to sustain that objection again. 20 MR. OLSHAN: 21 THE COURT: That wasn't the testimony, Your Honor. I know. Sustained. 22 BY MR. MAC MAHON: 23 Q. 24 SSCI staffer that was responsible for the leak? 25 A. Do you remember writing in 2003 that you thought it was a I probably did. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 125 of 259 PageID# 5998 Hunt - Cross 1281 1 Q. And you wrote and said that what you needed to figure out 2 who was responsible for the leak was a copy of the actual 3 letter provided by the Russian to the Iranian, correct? 4 A. I don't know. 5 Q. You never got a copy of that letter, right? 6 A. No, not as it appears in the book. 7 Q. Do you remember writing in January of 2006 that SSCI was 8 unified in its opposition at every level to your investigation? 9 A. I would need my memory refreshed. I'd have to have my memory refreshed. 10 THE COURT: 11 MR. MAC MAHON: 12 The Court's indulgence, Your Honor? 13 THE COURT: 14 MR. MAC MAHON: 15 THE COURT: 22 It's not jumping right up, Your Well, should we take the lunch break at MR. MAC MAHON: Yeah, that would help me find it, Your Honor. 20 21 Yes, sir. this point? 18 19 I do, Your Honor. Honor. 16 17 All right, do you have her report? THE COURT: folks. All right, we'll go ahead and do that, We'll reconvene at 5 of two. (Recess from 12:53 p.m., until 1:55 p.m.) 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 126 of 259 PageID# 5999 Hunt - Cross 1 1282 A F T E R N O O N 2 S E S S I O N (Defendant and Jury present.) 3 THE COURT: 4 MR. MAC MAHON: 5 THE COURT: 6 MR. MAC MAHON: 7 All right, Mr. MacMahon? May it please the Court, Your Honor? Yes, sir. Thank you. CROSS-EXAMINATION (Cont'd.) 8 BY MR. MAC MAHON: 9 Q. Agent Hunt, when we broke, I was asking you about some 10 statements in a document, and now I've got a copy for you and 11 the Court, if the Court wants a copy as well. 12 THE COURT: Yes, please. 13 BY MR. MAC MAHON: 14 Q. 15 2006. It's results of investigation. 16 word. Have you seen that document before? 17 A. Yes. 18 Q. You wrote this, right? 19 A. Yes. 20 Q. And if you'd turn to page 8, the first full paragraph, 21 read that first full paragraph and see if that refreshes your 22 recollection as to whether you wrote that there was unified 23 opposition exhibited by SSCI at every level of your 24 investigation. 25 A. Ma'am, I've handed you a document that's dated January 17, I won't say the top Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 127 of 259 PageID# 6000 Hunt - Cross 1283 1 Q. That is what you wrote, isn't it? 2 A. Yes. 3 Q. And do you also remember writing in 2006 that the FBI 4 director contacted the SSCI Chairman and Senator Pat Roberts, 5 right? 6 A. Yes. 7 Q. And that Senator Roberts told Director Mueller that he 8 wasn't going to cooperate with the FBI at all in this 9 investigation, correct? 10 A. Yes. 11 Q. And that never changed, did it? 12 A. It did change. 13 Q. You then got some cooperation from SSCI, correct? 14 A. I did. 15 Q. You never got an interview with Mr. Duhnke, right? 16 A. I did not interview Mr. Duhnke. 17 Q. And you never received any phone record that showed 18 Mr. Risen calling Mr. Stone, as he testified yesterday, 19 correct? 20 A. 21 in any of those records. 22 Q. 23 pulling out phone records, you were unable to prove that that 24 was true, correct? 25 A. I collected records from Mr. Stone. I did not find a call So even though Mr. Stone admits talking to Mr. Risen, by That's correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 128 of 259 PageID# 6001 Hunt - Cross 1284 1 Q. Do you remember doing a -- do you remember writing a, or 2 seeing a report dated September 6, 2007? 3 A. I would have to see a copy of it. 4 Q. About whether the information at the New York station -- 5 excuse me, excuse me, the New York office in New York -- strike 6 that question. 7 Do you remember seeing a CIA document that indicates 8 that before the Risen story that you showed the jury as an 9 exhibit was published about the World Trade Center, that there 10 was a prior news story on ABC News? 11 A. I would need to have my memory refreshed. 12 13 MR. MAC MAHON: Honor? 14 15 THE COURT: Yes. And I'll return this to you because this is not going into evidence. 16 MR. MAC MAHON: 17 THE COURT: 18 MR. MAC MAHON: 19 May I show this to the witness, Your No, Your Honor, it's not. All right. And this is a document dated September 6, 2007. 20 THE WITNESS: What's the question? 21 BY MR. MAC MAHON: 22 Q. Have you ever seen that document before? 23 A. Yes. 24 Q. And that document indicates that there was a story about 25 the fact that a CIA office in New York was destroyed on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 129 of 259 PageID# 6002 Hunt - Cross 1285 1 September 11 was public before Mr. Risen's story that you 2 showed the jury, right? 3 A. It says October 2001, yes. 4 Q. And you don't have any phone records that show 5 Mr. Sterling talking to Mr. Risen in 2001, correct? 6 A. Correct. 7 Q. And you know that the -- from your investigation that the 8 CIA is unable to say in any way what Mr. Sterling ever did on 9 his computer when he worked at the CIA, correct? 10 A. No, that's not my understanding. 11 Q. Does the CIA have some information on, on cables that 12 Mr. Sterling accessed at any point in time? 13 A. 14 him. 15 Q. 16 his computer at the CIA when he was cleared to know anything 17 about Classified Program No. 1? 18 A. 19 me. 20 Q. 21 weren't such that they could tell you when it was that he 22 printed anything from that file, if he did so, right? 23 A. That's correct. 24 Q. Or if he e-mailed himself or -- with documents, correct? 25 They couldn't tell you that? No, but they provided log-in and log-out information for And when was the last time that Mr. Sterling logged into I'm not sure because I don't have the records in front of But they don't have any -- the CIA's computer systems Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 130 of 259 PageID# 6003 Hunt - Cross 1286 1 A. I have no knowledge of those things. 2 Q. And you don't have any e-mails, any copies of any e-mails 3 that Mr. Sterling sent to himself while he was at the CIA, if 4 it even happened, right? 5 A. I don't fully understand your question. 6 Q. In your investigation, you saw no e-mails at all from 7 Mr. Sterling's account at the CIA, right? 8 A. 9 the investigation. I don't know. I saw a lot of e-mails during the course of I don't know if I saw any with his name on 10 them or not. 11 Q. 12 that contained classified information regarding Merlin or 13 Classified Program No. 1, correct? 14 A. You're talking about within CIA's systems? 15 Q. Yes. 16 A. I don't recall. 17 Q. And you've already said you didn't find any on any of the 18 computers of his that you searched, either, correct? 19 A. I didn't find what? 20 Q. Any classified information on any computer of 21 Mr. Sterling's. 22 A. That's correct. 23 Q. Did you search Mr. Sterling's computer that was seized in 24 2006 for any log files? 25 A. And you didn't see any e-mails in Mr. Sterling's account What I can tell you is that the computer was processed. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 131 of 259 PageID# 6004 Hunt - Cross 1287 1 When we make a request, I don't know that we would have 2 specifically requested log files. 3 them to look for evidence of certain things in the entirety of 4 the computer. 5 Q. 6 that the gentleman testified to yesterday? 7 A. Yes. 8 Q. And nothing came up, no positive hits on that at all, 9 correct? We would have requested for And that would have been a keyword search like the one 10 A. I believe we found one letter that you're aware of. 11 Q. A draft letter. 12 A. I don't know what it was. 13 Q. Anything other than that, you didn't find anything, 14 correct? 15 A. Correct. 16 MR. MAC MAHON: 17 THE COURT: Just a second, Your Honor. Okay. 18 BY MR. MAC MAHON: 19 Q. 20 receipts? 21 A. I believe I did. 22 Q. Did you -- you were given back a receipt of a transfer of 23 money from Mr. Risen to his son by Western Union? Ma'am, did you subpoena Mr. Risen's Western Union 24 25 MR. OLSHAN: Objection. Why is that relevant, Your Honor? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 132 of 259 PageID# 6005 Hunt - Cross 1288 1 THE COURT: 2 MR. MAC MAHON: 3 Yeah. Honor. 4 THE COURT: 5 MR. MAC MAHON: 6 MR. OLSHAN: 7 I'm sorry? The scope of the investigation. Every piece of paper that was obtained is not necessarily -- is not relevant, Your Honor. 8 THE COURT: 9 a different purpose. 10 Scope of the investigation, Your No, I understand that. I think it's for I'll overrule the objection. I understand, Mr. MacMahon. 11 THE WITNESS: I don't recall what was in the Western 12 Union records I received. 13 to make any sort of definitive comment. 14 BY MR. MAC MAHON: 15 Q. 16 looking, you never found any transfer, any evidence of any 17 transfer of money from Mr. Sterling to Mr. Risen or vice versa, 18 correct? 19 A. I did not. 20 Q. That's what you were looking for, wasn't it? 21 A. I would have to go back and look at the records. 22 was something in some other record that suggested to me that 23 information regarding a Western Union transaction might be 24 related to my investigation, and so I then sought Western Union 25 records. All right. I would need to review the records But you never found any -- though you were There Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 133 of 259 PageID# 6006 Hunt - Cross 1289 1 Q. And found nothing relevant to your investigation, correct? 2 A. That's correct. 3 Q. And you -- how many times did you pull credit reports on 4 Mr. Risen? 5 A. Without the records in front of me, I couldn't tell you. 6 Q. What were Mr. Risen's credit reports going to tell you 7 about whether Mr. Sterling had disclosed classified information 8 to Mr. Risen? 9 10 11 MR. OLSHAN: Objection, Your Honor. How is this relevant? THE COURT: The scope of the investigation is 12 relevant to this particular case. 13 THE WITNESS: Overruled. I obtained Mr. Risen's credit report or 14 reports in order to identify the credit cards he used because I 15 then obtained records for his credit cards. 16 have already been discussed suggested that James Risen was 17 meeting with Jeffrey Sterling, and we also had a witness tell 18 us that they, in fact, did meet. 19 20 21 22 23 24 25 MR. MAC MAHON: The e-mails that Your Honor, object to her repeating these questions -- her testifying -THE COURT: And that would be hearsay, so I'm going to go ahead and have that stricken. MR. OLSHAN: Go ahead. Your Honor, respectfully, the witness was answering the question. THE COURT: Well, I think it was more of a narrative. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 134 of 259 PageID# 6007 Hunt - Redirect 1 1290 But go ahead, Mr. MacMahon. 2 BY MR. MAC MAHON: 3 Q. 4 whether Mr. Sterling and Mr. Risen ever, ever met in person, 5 correct? 6 A. I have no definitive evidence but I -- 7 Q. You've got a strong suspicion, right, ma'am? 8 A. I was told that they did. You testified already that you have no information on 9 THE COURT: 10 Well, you opened the door to that one. MR. MAC MAHON: That's fine. 11 Q. And do you have any proof that they ever met together 12 other than some witness who said that to you? 13 A. No. 14 Q. You weren't able to verify that statement, correct? 15 A. I was not. 16 Q. And sitting here today, you can't tell this jury anything 17 about where or when Mr. Risen or Mr. Sterling met or what they 18 ever discussed, correct? 19 A. Correct. 20 MR. MAC MAHON: 21 THE COURT: 22 MR. OLSHAN: 23 That's all I have, Your Honor. All right. Redirect, Mr. Olshan? Yes, Your Honor. REDIRECT EXAMINATION 24 BY MR. OLSHAN: 25 Q. Special Agent Hunt, Mr. MacMahon asked you some questions Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 135 of 259 PageID# 6008 Hunt - Redirect 1291 1 about phone records. Do you recall those? 2 A. Yes. 3 Q. Did you obtain phone records for Vicki Divoll? 4 A. I did. 5 Q. And did those reflect any communications between 6 Ms. Divoll and Mr. Risen? 7 A. They did not. 8 Q. And what about phone records for Merlin? 9 any of those phone records? Did you obtain 10 A. I did. 11 Q. What did they reflect about communications with Mr. Risen? 12 A. They reflected no contact between Merlin and James Risen. 13 Q. Mr. MacMahon asked you about Mr. S. and his 14 characterization in the book. 15 A. Yes. 16 Q. And in the book, is he referred to as the senior case 17 officer or the senior CIA officer? 18 A. Or perhaps official, something like that. 19 Q. But he is referenced in the book? 20 A. Yes. 21 Q. Do any of Mr. S.'s -- does language from any of Mr. S.'s 22 PARs show up in chapter 9? 23 A. No. 24 Q. How many articles did James Risen write about Mr. S., 25 newspaper articles? Do you recall those questions? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 136 of 259 PageID# 6009 Hunt - Redirect 1292 1 A. One. 2 Q. What was that? 3 A. I'm sorry, about -- 4 5 About Mr. S. MR. MAC MAHON: They're confusing Mr. S.'s, Your Honor. 6 THE WITNESS: Yes. I'm sorry. 7 BY MR. OLSHAN: 8 Q. How many newspaper articles? 9 A. Are we talking about Bob S.? 10 Q. Yes. 11 A. He wrote no articles about Bob S. 12 Q. Thank you. 13 No, I'm sorry. You testified that you had written that SSCI as an 14 organization was not cooperative at first. 15 A. That's correct. 16 Q. Was Vicki Divoll cooperative during the course of your 17 investigation? 18 A. Yes. 19 Q. What about Don Stone? 20 A. Yes. 21 Q. Special Agent Hunt, when you investigate a case, do you 22 consider motive? 23 A. I do. 24 Q. How important is motive evidence in your investigation? 25 MR. MAC MAHON: Is that correct? Your Honor, objection to testimony as Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 137 of 259 PageID# 6010 Hunt - Redirect 1 1293 to her theory of motive. 2 MR. OLSHAN: Your Honor, the defense put the 3 thoroughness of this investigation at issue. 4 should be able to describe why it is that she focused her 5 direction a particular way. 6 THE COURT: 7 opened. 8 BY MR. OLSHAN: 9 Q. I'll permit it. The witness I believe the door was Overruled. My question, Special Agent Hunt, was how important is 10 motive evidence when you conduct a criminal investigation? 11 A. It is very important. 12 Q. Did you obtain evidence that you believed provided -- 13 presented a motive for somebody to disclose information to 14 Mr. Risen during the course of this investigation? 15 A. Yes. 16 Q. And who did that evidence involve? 17 A. Jeffrey Sterling. 18 Q. Has Robert S. ever sued the CIA? 19 A. No. 20 Q. Merlin ever sued the CIA? 21 A. No. 22 Q. When you initiated the investigation, I believe you 23 testified it was in April of 2003? 24 A. That's correct. 25 Q. At the time when you initiated your investigation Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 138 of 259 PageID# 6011 Hunt - Redirect 1294 1 concerning unauthorized disclosure of classified information to 2 James Risen, did you learn any information regarding Mark Zaid 3 and Mr. Krieger that, that directed your investigation? 4 A. 5 6 I did. MR. MAC MAHON: That door was not opened as to Mr. Sterling's prior lawyers. 7 MR. OLSHAN: 8 THE COURT: 9 Your Honor, objection. Your Honor, this is about why -Again, the scope of the investigation, what was done and not done, was clearly part of the cross. I'm 10 going to allow it, excuse me, on redirect; and if there needs 11 to be recross on that, you'll be allowed to. 12 MR. MAC MAHON: Go ahead. Thank you, Your Honor. 13 BY MR. OLSHAN: 14 Q. 15 about information from Mr. Krieger and Zaid that helped you 16 direct your investigation and focus it? 17 A. 18 investigation was based on a report I received from the CIA 19 dated April 7, 2003. 20 information about the fact -- What did you learn at the outset of your investigation When I opened my investigation on April 8, 2003, my In that report, the CIA provided 21 MR. MAC MAHON: 22 THE COURT: 23 MR. OLSHAN: Your Honor, that's hearsay. Wait. Your Honor, this is not for the truth. 24 It's why she took the actions. 25 THE COURT: It explains why she is acting, takes the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 139 of 259 PageID# 6012 Hunt - Redirect 1295 1 investigative tacks that she does, so I'm going to overrule the 2 objection. 3 BY MR. OLSHAN: 4 Q. You may continue, Special Agent Hunt. 5 A. The CIA advised that on February 24, 2003, it was 6 contacted by Mark Zaid and Roy Krieger. 7 February 24 that a client of theirs had contacted them on 8 February 21, 2003, and that that client, that unnamed client at 9 the time voiced his concerns about an operation that was 10 nuclear in nature, and he threatened to go to the media. 11 Q. 12 Mr. Krieger in the course of your investigation? 13 A. I did. 14 Q. Did those facts help you focus the direction of your 15 investigation? 16 A. They did. 17 Q. And who did you learn was the client of Mr. Krieger and 18 Mr. Zaid? 19 A. Jeffrey Sterling. 20 Q. You testified that you have read the chapter a number of 21 times; is that correct? 22 A. Yes. 23 Q. Which person in your opinion, which person received the 24 most favorable treatment as written in chapter 9? 25 It's not hearsay. They told the CIA on Did you later learn who that client was from Mr. Zaid and MR. MAC MAHON: Your Honor, that's -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 140 of 259 PageID# 6013 Hunt - Redirect 1 2 THE COURT: All right, now I think that's going beyond the scope of proper cross -- proper redirect. 3 4 1296 MR. OLSHAN: If it's relevant to the investigation, Your Honor. 5 THE COURT: Well, then ask the question in a 6 different way. 7 BY MR. OLSHAN: 8 Q. 9 9 relevant to your investigation and how you conducted it after Was the characterization of certain individuals in chapter 10 the book was published in 2006? 11 A. Yes, it was. 12 Q. And which character in the book is referenced most 13 favorably? 14 A. The case officer who was handling the Merlin asset. 15 Q. And who was that in reality? 16 A. Jeffrey Sterling. 17 Q. Chapter 9 also references two specific events: 18 to Vienna and the San Francisco meeting. 19 A. I do. 20 Q. Relative to Mr. Sterling's time as the case officer, did 21 those events -- strike that. 22 the trip Do you recall those? Where do those events fall relative to Mr. Sterling's 23 time as the case officer for Merlin? 24 A. 25 Jeffrey Sterling's time as the case officer for this asset and The San Francisco meeting occurred at the beginning of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 141 of 259 PageID# 6014 Hunt - Redirect 1297 1 operation, and the operation carried out in Vienna in 2 February-March of 2000 falls toward the end of his time as the 3 case officer. 4 Q. 5 investigation, did you determine whether that was known to 6 Mr. Sterling? 7 A. It was. 8 Q. And the fact about the postman in Vienna, was that known 9 to Mr. Sterling? The fact about the Sonoma trip, in the course of your 10 A. It was. 11 Q. Did those facts and the additional details about the San 12 Francisco meeting and the Vienna trip influence the direction 13 of your investigation? 14 A. Yes. 15 MR. OLSHAN: 16 THE COURT: May I have a moment, Your Honor? Yes, sir. 17 BY MR. OLSHAN: 18 Q. 19 Mr. Stone; is that correct? 20 A. Yes. 21 Q. Were those phone records for his personal phone numbers or 22 his Senate phone numbers or both? 23 A. 24 his, his residence and his number at the Senate. 25 that -- well, I collected some of those records in 2003 and You testified that you obtained phone records from I tried to obtain records for all of the numbers, both I'm not sure Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 142 of 259 PageID# 6015 Hunt - Recross 1298 1 some of them later. 2 Q. 3 organization, did that include the lawyers for the Senate not 4 being cooperative? 5 A. When you testified that SSCI was not cooperative as an Yes. 6 MR. OLSHAN: 7 THE COURT: 8 MR. MAC MAHON: 9 That's all. All right, recross? Briefly, Your Honor. RECROSS EXAMINATION 10 BY MR. MAC MAHON: 11 Q. 12 never able to document the call that he said he got from 13 Mr. Risen right at the same time when the, after Mr. Sterling 14 had met there, correct? 15 A. That's correct. 16 Q. So you're not able to tell the jury how long that phone 17 call was? 18 A. No. 19 Q. You can't, you can't tell them what the originating number 20 was or the terminating number, correct? 21 A. I have no records that reflect that call. 22 Q. And that's a fact that you learned in early 2003 from 23 Mr. Stone, correct? 24 A. No. 25 Q. Well, how long did it take for Mr. Stone to tell you that Ma'am, whatever records you got from Mr. Stone, you were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 143 of 259 PageID# 6016 Hunt - Recross 1299 1 he'd spoken to James Risen? 2 A. 3 until March of 2005. 4 Q. 5 case completely, right? 6 A. Yes. 7 Q. Okay. 8 hadn't you, the same time you're telling in answer to 9 Mr. Olshan's questions that you were hearing some hearsay about I did not see the memorandum that documented the call And in March of 2005, you were still investigating this And you had written about Mr. Sterling in 2003, 10 Mr. Sterling's lawyers? 11 A. I'm sorry, what's the question? 12 Q. You said you had heard some hearsay that Mr. Sterling's 13 lawyers were talking about him at the CIA, correct? 14 A. 15 February 24. 16 Q. 17 about Mr. Sterling, and you said that it was unlikely that it 18 was Mr. Sterling who was the leak, correct? 19 A. 20 information I had at that time. 21 Q. 22 already attempted to settle an EEO lawsuit for a few hundred 23 thousand dollars would choose to attack and enrage the 24 organization from which he seeks but has not yet received a 25 settlement. What I said is that his attorneys went to the CIA on At that time, they did not name Jeffrey Sterling. All right. But on April 12 of 2003, you wrote a memo If I wrote that at that time, then that was based on the Right. You said that it's unlikely that someone who has Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 144 of 259 PageID# 6017 Hunt - Recross 1 1300 That's your writing, isn't it? 2 A. I don't know. You haven't shown me the document. 3 Q. And you also in the same document dismiss your concerns 4 about Mr. Zaid and Krieger, correct? 5 A. I don't know. 6 Q. And in the last 12 years, you still haven't come up with 7 any proof that Mr. Sterling ever talked to Mr. Risen about 8 Classified Program No. 1 or Merlin, right? 9 A. It was 12 years ago. Correct. 10 MR. MAC MAHON: 11 THE COURT: 12 You don't remember that? That's all, Your Honor. Thank you. All right, thank you, Agent. You may step down. 13 (Witness excused.) 14 THE COURT: Your next witness? 15 MR. FITZPATRICK: 16 THE COURT: 17 MR. FITZPATRICK: Your Honor? Yes. The government's final witness at 18 lunch had to go and check out of her hotel room. 19 believe she has returned yet. 20 break and take care of some housekeeping matters, and she'll be 21 back very, very shortly. 22 THE COURT: 23 MR. OLSHAN: 24 25 I don't Perhaps we could take a short All right. Ladies and gentlemen, we -- We could read some stipulations, Your Honor. THE COURT: Why don't you read stipulations. There Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 145 of 259 PageID# 6018 1301 1 you go. 2 3 MR. OLSHAN: more. 4 5 I know everyone's dying to hear some THE COURT: All right. Did you work out any problems you had with that other stipulation? 6 MR. OLSHAN: We did. We've got a corrected version, 7 and we will, we will enter that in. 8 Court would like. 9 were, were incorrect, and I noticed that as I was reading it. 10 It was just that some of the phone numbers THE COURT: I don't think the jury needs to hear the 11 numbers, but I'll tell you what: 12 exhibit? 13 right, make sure that we have that. MR. OLSHAN: 15 THE COURT: 17 You've got the corrected Give it right to Mr. Wood, and he'll pull the -- all 14 16 I could read it if the It is not marked with an exhibit number. Well, I thought it was replacing -- does it not have an exhibit -MR. OLSHAN: It is. It is, but I can put a new 18 exhibit number -- actually, I apologize, Your Honor, this was 19 not replacing anything. 20 binders yet. 21 THE COURT: 22 MR. OLSHAN: 23 24 25 This document had not been put in the What exhibit number do you want for that? This will be 175, Stip. 12, 175. Stipulation No. 12 is Government's 175. THE COURT: All right, 175 is in evidence, and you can hand it up now. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 146 of 259 PageID# 6019 1302 1 2 (Government's Exhibit No. 175 was received in evidence.) 3 MR. OLSHAN: This is Stipulation No. 6, which is 4 Government's Exhibit 166: 5 through its attorneys, and the defendant, Jeffrey Alexander 6 Sterling, and the defendant's attorneys, hereby stipulate and 7 agree as follows: 8 9 10 "The United States of America, "At the request of the FBI, the National Laboratory calculated that as of July 1998, the CIA had expended at least $1.5 million on Classified Program No. 1." 11 THE COURT: 12 MR. OLSHAN: All right. Your Honor, there were two additional 13 stipulations that were attached to that particular order we've 14 discussed. 15 in as well, and I can do that now. Those need to be marked as trial exhibits and read 16 THE COURT: 17 MR. MAC MAHON: 18 THE COURT: 19 MR. OLSHAN: 20 No, Your Honor. All right. We will do one, and the defense will do the other, Your Honor. 21 THE COURT: 22 MR. OLSHAN: 23 All right, any objection? All right, that's fine. This will be Stipulation No. 13 and Government's Exhibit 176. 24 THE COURT: 25 MR. OLSHAN: 176? Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 147 of 259 PageID# 6020 1303 1 THE COURT: 2 (Government's Exhibit No. 176 was received in 3 All right. evidence.) 4 MR. OLSHAN: "The United States, through its 5 attorneys, and the defendant, Jeffrey Alexander Sterling, and 6 the defendant's attorneys, hereby stipulate and agree as 7 follows: 8 9 "From 1994 through 2009, the CIA paid Merlin and his wife the following funds: 1994, $12,745.85; 1995, $112,000; 10 1996, $100,500; 1997, $88,750; 1998, $48,750; 1999, $71,000; 11 2000, $66,000; 2001, $60,000; 2002, $82,000; 2003, $78,000; 12 2004, $78,000; 2005, $60,000; 2006, $66,723.67; 2007, $72,000; 13 2008, $72,000; and 2009, $6,000." 14 15 I think that's it for now, Your Honor. make a copy of this and get it into the binder. 16 THE COURT: 17 another stipulation? 18 19 20 21 We'll have to All right, that's fine. MR. FITZPATRICK: Was there No, Your Honor, but we have our witness. THE COURT: The witness is here? All right, Mr. Wood, do you want to bring her in? 22 Is that Ms. Eulitz? 23 MR. FITZPATRICK: 24 THE COURT: 25 MR. FITZPATRICK: Yes, Your Honor. All right. The government calls Jill Eulitz. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 148 of 259 PageID# 6021 Eulitz - Direct 1304 1 JILL EULITZ, GOVERNMENT'S WITNESS, AFFIRMED 2 MR. FITZPATRICK: 3 Thank you, Your Honor. DIRECT EXAMINATION 4 BY MR. FITZPATRICK: 5 Q. Good afternoon, ma'am. 6 A. Good afternoon. 7 Q. I'm going to be asking you a series of questions. 8 could, please, keep your voice up and speak into the 9 microphone. If you 10 A. Sure. 11 Q. If we could start, please, by please state your name. 12 A. My name is Jill Eulitz. 13 Q. Can you spell your last name so the court reporter can 14 take it down? 15 A. Yes. 16 Q. And where do you currently work? 17 A. I'm currently employed with Con Edison in New York as a 18 director of business ethics investigations. 19 Q. And how long have you been in that position? 20 A. It will be five years February 1. 21 Q. What was your profession prior to joining Con Edison? 22 A. I was a special agent with the FBI. 23 Q. And how long were you with the FBI? 24 A. I was initially employed in 1985. 25 1986. E-u-l-i-t-z. I became an agent in I worked mostly criminal matters from 1986 until 1994 in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 149 of 259 PageID# 6022 Eulitz - Direct 1305 1 Greensboro, North Carolina, and Chicago, Illinois, and then I 2 left the bureau for two years. 3 '96, I was assigned to the New York field office. 4 until I retired in 2009, I worked Russian foreign 5 counterintelligence matters. 6 Q. 7 held right before your retirement, what was that? 8 A. 9 counterintelligence administrative matters. When I joined the bureau in From 1996 And directing your attention to your position that you When I retired as a deputy assistant director over 10 Q. And describe for the, for the jury where you are in the 11 hierarchy of the FBI in that position. 12 A. 13 assistant director for all of counterintelligence operations, 14 and that assistant director reported to the director of the 15 FBI. 16 Q. 17 career was Russian counterintelligence; is that correct? 18 A. Yes. 19 Q. And during the course of those 13 years, did you have an 20 occasion to gain a lot of information and intelligence about 21 the Russian Intelligence Services? 22 A. 23 that that was our sole purpose was to counter the efforts of 24 the Russian Intelligence Service in the United States. 25 continued in that role for -- from 1996 until 1999, when I was In that position at FBI headquarters, I reported to the And so the primary focus of the last 13 years of your Yes. Specifically in New York, I was assigned to a squad I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 150 of 259 PageID# 6023 Eulitz - Direct 1306 1 promoted to supervisor at FBI headquarters. 2 FBI headquarters, my role expanded to include the operations 3 across the United States, overseeing different programs 4 countering the Russian Intelligence Service. 5 As a supervisor at I was promoted back to squad supervisor into New York 6 in 2002. 7 activities targeting the Russians from 2002 until 2005, when I 8 was promoted to an assistant special agent in charge. 9 I was a squad supervisor overseeing our operational For a few months, I was the assistant special agent 10 in charge in the New York office, overseeing administrative 11 matters for the whole office. 12 counterintelligence program, where I oversaw our 13 counterintelligence programs, some of them for the rest of the 14 world for a few months, and then for the, about a year, Russian 15 intelligence matters. 16 Then they moved me back to the Then I was promoted -- I don't know if I'm going too 17 fast but -- 18 Q. No, that's fine. 19 A. In 2008, then I was promoted to a section chief, which is 20 a senior executive service in the FBI. 21 over the Russian program, responsible for our operations across 22 the United States, and then I was promoted to the deputy 23 assistant director job in 2009. 24 Q. 25 Russian counterintelligence area, did you have an occasion to I was a section chief When you were a field agent beginning in 1996 in the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 151 of 259 PageID# 6024 Eulitz - Direct 1307 1 participate in debriefings of Russian individuals for 2 intelligence-gathering purposes? 3 A. 4 part of the debriefings with monitoring what was going on as 5 far as, as the Russians were being debriefed. 6 Q. 7 then to the deputy director position, did you oversee those 8 intelligence-gathering activities? 9 A. Yes. 10 Q. And did you have occasion to analyze the reports that were 11 produced from those intelligence-gathering activities? 12 A. Yes. 13 Q. During your professional career in this area, did your 14 work also include performing damage assessments of Russian 15 breaches of U.S. intelligence? 16 A. Yes, absolutely. 17 Q. I want to direct your attention to chapter 9 of a book 18 entitled State of War. 19 A. Yes, I have. 20 Q. And have you read it recently? 21 A. Yes. 22 Q. And did the government, did we ask you to read that book? 23 A. Yes, you did. 24 Q. And was there -- after reading that book, was there 25 something that you paid particular attention to in that book? Yes. I wasn't the main person face to face, but we were And then as you progressed into the supervisory ranks and Unfortunately. Have you read that? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 152 of 259 PageID# 6025 Eulitz - Direct Yes. 1308 1 A. Based upon my career and knowledge of the Russian 2 Intelligence Service, what was -- what brought my attention as 3 far as that chapter 9 is concerned is identifying the Russian 4 scientist as working for U.S. intelligence, being directed 5 operationally, targeting another country. 6 Q. 7 assess how the Russian government or the Russian Intelligence 8 Services would react to learning about the Russian scientist in 9 chapter 9? Based on your experience in this field, how would you 10 A. The Russian government in my experience would consider the 11 scientist a traitor. 12 to do their own damage assessment to try and identify who this 13 person was, to try and identify what information he had, what 14 access to information he had. 15 information given to the U.S. intelligence. 16 They would do everything that they could They would consider all of that They would try and restrict others from traveling and 17 from us having access to them. They would -- 18 Q. When you say "others," who do you refer to? 19 A. Other scientists, the Russian scientists perhaps assigned 20 even to that same facility. 21 Q. 22 traveling outside of Russia? 23 A. Yes. 24 Q. What other methods would the Russian Intelligence Services 25 or the Russian government employ that would stifle U.S. So the Russians would inhibit their own scientists from Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 153 of 259 PageID# 6026 Eulitz - Direct 1309 1 intelligence-gathering capabilities? 2 A. 3 their business, the way that they protect their information, 4 access that we would have or potential access to their 5 scientists in overseas locations. 6 retaliate against the United States for doing -- for recruiting 7 this person and using him in an operation, and they would 8 potentially look to find him since he would be considered a 9 traitor, bring him back to Russia, and prosecute him. What they might do is change the way that they conduct They would also look to 10 Q. And do you have an opinion as to the potential harm faced 11 by the Russian scientist described in chapter 9, do you have an 12 opinion as to the harm faced by him today? 13 A. 14 Russian Intelligence Service, that he would be in harm's way. 15 Q. And can you explain why? 16 A. Yes. 17 cooperating with U.S. intelligence, they would want to bring 18 him back home, prosecute him, imprison him. 19 other information they have, if they identify him, to 20 corroborate who he is, what he did, what he had knowledge of, 21 and he would definitely be in harm's way. 22 Q. 23 perseverance or their ability to stay focused on particular 24 individuals, do you have an opinion with respect to that, that 25 perspective? Yes. I would think based upon the past behavior of the Because he is considered a traitor to them by Depending on what In terms of the Russian Intelligence Service's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 154 of 259 PageID# 6027 Eulitz - Cross 1 A. 2 much more so than the United States, our counterparts, us. 3 They're much more patient in that they will take their time, 4 they will be deliberate, and they will continue to pursue for 5 as many years as it takes. 6 MR. FITZPATRICK: 7 Yes. 1310 Ms. Eulitz, I don't have any further questions for you at this time. 10 11 The Court's indulgence for one moment? 8 9 The Russian Intelligence Service is very patient, Thank you. THE COURT: All right, who's cross-examining this witness, if anyone? 12 MS. HAESSLY: 13 THE COURT: 14 I am, Your Honor. All right. CROSS-EXAMINATION 15 BY MS. HAESSLY: 16 Q. Good afternoon, Ms. Eulitz. 17 A. Good afternoon. 18 Q. My name is Mia Haessly. 19 Mr. Sterling. I'm one of the attorneys for 20 The Russian scientist who is described in chapter 9, 21 are you aware that he has ever been identified because of this 22 book? 23 A. No, I'm not. 24 Q. And has he ever been prosecuted, imprisoned, taken back to 25 Russia? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 155 of 259 PageID# 6028 Eulitz - Cross 1311 1 A. I don't know that. 2 Q. Are you aware of any harm that's ever come to him as a 3 result of this book? 4 A. I am not aware. 5 Q. And I believe the Russian scientist was, actually worked 6 for the Soviet Union; is that correct? 7 A. I'm sorry, could you repeat that? 8 Q. The Russian scientist in the book was, he had worked for 9 the Soviet Union? 10 A. I really don't know his past, just what was in chapter 9. 11 Q. And when did the Soviet Union collapse? 12 A. In '91. 13 MS. HAESSLY: No further questions. 14 THE WITNESS: Thank you. 15 THE COURT: 16 MR. FITZPATRICK: 17 THE COURT: 18 19 22 Nothing further, Your Honor. All right, thank you, Ms. Eulitz. You're finished as a witness, and you're excused. THE WITNESS: 20 21 Any redirect? Thank you. (Witness excused.) THE COURT: All right, are there any other witnesses the government plans to call right now? 23 MR. TRUMP: Not in our case-in-chief, Your Honor. 24 THE COURT: All right. 25 MR. TRUMP: We have a right for rebuttal, and as is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 156 of 259 PageID# 6029 1312 1 normal practice, we would like to check with the clerk and make 2 sure our exhibit list compares with yours. 3 we may have forgotten a stipulation or something, we would 4 certainly request leave to check first before we officially 5 rest. 6 THE COURT: 7 All right, Mr. MacMahon? 8 MR. MAC MAHON: 9 THE COURT: All right, that's fine. Thank you. Your Honor, we have a motion. Approach the bench. 10 (Bench conference on the record.) 11 THE COURT: 12 To the extent that Lookit, I know you want to make a Rule 29 motion, all right? 13 MR. MAC MAHON: We do, Your Honor. 14 THE COURT: 15 MR. MAC MAHON: 16 THE COURT: 17 out-of-town witness. 18 not -- you're reserving your right to make the Rule 29 19 argument, and we'll do that once the jury is done for the day, 20 all right? Have you got one witness? Yes, Your Honor. All right. That witness is an Let's put the witness on now. You're So you have one witness. 21 How many rebuttal, if any, witnesses do you-all have? 22 MR. OLSHAN: 23 MR. MAC MAHON: 24 THE COURT: 25 MR. OLSHAN: If the witness -- who is the witness? Mr. Gilby. Gilby. We have no rebuttal witnesses in that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 157 of 259 PageID# 6030 1313 1 case. 2 THE COURT: 3 finish the evidence. 4 hear your argument, and then depending on what happens as a 5 result of that, we'll do the jury charge, we're all set, all 6 right? 7 8 Let's I'm going to send the jury home. MR. MAC MAHON: We'll That's what we were going to suggest, Your Honor, so that's fine with the defense. 9 10 All right, so let's do this: THE COURT: All right, that's fine. All right? right. 11 (End of bench conference.) 12 THE COURT: All right, ladies and gentlemen, as I 13 indicated to you, we are definitely on schedule. 14 government has rested. 15 have presented all of the evidence that they need. 16 The That means the government believes they The defense is going to be calling some evidence -- 17 putting on some evidence now, so we're going to start the 18 defendant's case, all right? 19 Who's calling this witness? 20 MR. POLLACK: 21 THE COURT: 22 All I am, Your Honor. All right, Mr. Pollack. And that's -- go ahead. 23 MR. POLLACK: 24 THE COURT: 25 MR. POLLACK: Mr. Sterling will call Mr. Gilby. Gilby. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 158 of 259 PageID# 6031 Gilby - Direct 1314 1 HOWARD M. GILBY, DEFENDANT'S WITNESS, AFFIRMED 2 DIRECT EXAMINATION 3 BY MR. POLLACK: 4 Q. 5 your last name. 6 A. Okay. 7 Q. And, Mr. Gilby, what, what city and state do you live in 8 presently? 9 A. I live in St. Louis, Missouri. 10 Q. And what do you currently do for a living? 11 A. I'm retired, but I have a small construction company that 12 does renovation work. 13 Q. And were you living in Missouri in 2003? 14 A. Yes, I was. 15 Q. And did you have a daughter by the name of Lora Dawson? 16 A. Yes, that's right, my youngest daughter. 17 Q. And was she also living in Missouri in 2003? 18 A. Yes, she was. 19 Q. And in 2003, did someone come to live in the Dawson -- in 20 your daughter's house? 21 A. 22 August-September, somewhere in there. 23 Q. Jeffrey Sterling? 24 A. Jeffrey, yeah. 25 Q. Do you see Mr. Sterling in the courtroom today? Mr. Gilby, can you please state your full name and spell Yes. Howard M. Gilby, G-i-l-b-y. Jeff Sterling came in, I think, in the, in the fall, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 159 of 259 PageID# 6032 Gilby - Direct 1315 1 A. I'm sorry, sir? 2 Q. Do you see Mr. Sterling today? 3 A. Yes. 4 Q. Can you point him out? 5 A. Right here (indicating). 6 THE COURT: 7 MR. POLLACK: The witness identified Mr. Sterling. Oh, Your Honor, I wanted to, I wanted 8 to say that for the record. 9 Q. I never got to do that. And what is it that -- why was it your understanding that 10 Mr. Sterling was staying in your daughter's house? 11 A. It's my understanding that he -- 12 13 14 MR. OLSHAN: Objection, Your Honor. This calls for hearsay. THE COURT: Is this being offered to explain 15 something this man has done, or is this offered for the truth 16 of its contents? 17 MR. POLLACK: It is not being offered, offered for 18 the truth, merely to explain Mr. Gilby's actions that are 19 relevant here. 20 21 22 THE COURT: Then it's not hearsay, so I'll overrule the objection. THE WITNESS: As I understand it, he had some 23 problems with his employment and at the time was unemployed and 24 asked to stay and was helping her with her granddaughter, who 25 was born in May then. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 160 of 259 PageID# 6033 Gilby - Direct 1316 1 BY MR. POLLACK: 2 Q. 3 used? 4 A. 5 attached in the lower level, in the basement, and the rest of 6 the basement is finished, has a laundry area and that sort of 7 thing. 8 Q. And who lived in the house at that time? 9 A. Who was in the house at that time? 10 Q. Yes. 11 A. My daughter, her husband, and Bailey, her daughter. 12 Q. And Mr. Sterling -- 13 A. And Mr. Sterling. 14 Q. And Mr. Sterling was the daughter -- your granddaughter's 15 caregiver, correct? 16 A. Yes, he was. 17 Q. And did Mr. Sterling have a computer in the bedroom that 18 he used? 19 A. 20 was a computer there. 21 Q. 22 in was a computer that you had given to your daughter? 23 A. 24 her, yeah. 25 Q. And did Mr. Sterling have a bedroom in the house that he Yeah. My daughter's home has a bedroom with a bath So it's, it's a nice place to stay. Well, there was a computer station in that room, and there It's one I'd given her before. The computer that was in the room Mr. Sterling was staying Yes, that's what I understand. It's the one I had given But before you gave her that computer, did you wipe it Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 161 of 259 PageID# 6034 Gilby - Direct 1317 1 clean of all the data that was on it? 2 A. 3 everything clean. 4 sure there was -- we had some financial data on there. 5 some planning programs, and we had a program that drew floor 6 plans and that sort of thing. 7 them all off or tried to take them all off. 8 skilled with taking these things off the machines. 9 Q. But you tried to delete that stuff? 10 A. I tried to delete that stuff, yeah. 11 machine that wasn't a bunch of junk on there that she couldn't 12 run or didn't need to run. 13 Q. 14 the computer? 15 A. 16 through Quicken -- I think Quicken was on there, one of the 17 standard software packages. 18 Architect, which is a drawing program that did floor plans, had 19 some Excel programs to keep track of things, and I had some, 20 pretty much what you, any business would have on these 21 machines. Well, I was trying to think back whether I had wiped I, I had quite -- I had attempted to make We had I probably took, I probably took I'm not that So I gave her a Now, when you had the computer, what use did you make of Well, we kept our company books on there. 22 We had -- We had -- I think I had Chief I had -- there was a word processing program. We 23 kept our letters and all that sort of stuff on there that we, 24 we used. 25 transferred them over to another program -- another computer. Now, we transferred those over to other -- you know, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 162 of 259 PageID# 6035 Gilby - Cross 1318 1 Q. Now, in addition to the software packages that you were 2 using in your business, did you from time to time look at 3 various pieces of commercially available software to consider 4 whether or not they would be of value to you in your business? 5 A. 6 scheduling programs to use, and I would sometimes download 7 those or send for them or that sort of thing and evaluate them. 8 I didn't have much success in finding things I really thought 9 were good. I tended to try to find better drawing programs, better 10 Q. And specifically, do you recall looking at and considering 11 using a commercially available software program called Merlin? 12 A. 13 that program. 14 Gantt, charged in project management, that sort of thing. 15 did play with that for a while and wasn't -- I shouldn't say 16 wasn't that impressed with it, but I just -- I did remember the 17 name because it's a catchy name, and the -- I've forgotten the 18 names of some other programs I downloaded that weren't exciting 19 news, but that one I remember. Yeah. 20 I, I can't remember why I downloaded that or got It's a scheduling program, a Gantt, charged as MR. POLLACK: I don't have any other questions. 22 THE WITNESS: Okay. 23 THE COURT: 21 Thank you. 24 25 I Mr. Olshan? CROSS-EXAMINATION BY MR. OLSHAN: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 163 of 259 PageID# 6036 Gilby - Cross 1319 1 Q. Good afternoon, sir. My name is Eric Olshan. 2 the attorneys for the government in this case. 3 couple questions for you. 4 A. 5 picking up very well. 6 Q. Absolutely. 7 A. That's better. 8 Q. Mr. Gilby, you testified that this particular computer you 9 gave to your daughter was yours before you gave it to her; is Would you speak a little louder? I'm one of I just have a My hearing aids aren't Is that better? 10 that right? 11 A. 12 our machines over every two or three years, and I gave her, I 13 gave her -- I just gave her one last year. 14 her one at around that time. 15 Q. 16 computer, did you use it to e-mail people? 17 A. 18 just do the stuff that we all do, you know. 19 Q. 20 journalist? 21 A. Only from what I've read in the last few weeks and -- 22 Q. When you had that computer, Mr. Gilby, did you send any 23 e-mails to James Risen? 24 A. No, I didn't. 25 Q. So you didn't send -- As I recall, that is one I gave her. We, we tend to turn I remember giving When you gave her the computer -- when you had the As a matter of fact, probably did. It was, you know, we Do you know someone named James Risen, a New York Times I didn't even know him then. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 164 of 259 PageID# 6037 Gilby - Cross 1320 1 A. In fact, I've never known the man. I just know from what 2 I've seen from the discussions about this, this trial here. 3 Q. 4 correct? 5 A. No. 6 Q. Or jrisen@newyorktimes.com, correct? 7 A. No. 8 Q. And did you ever use an e-mail address that was 9 jeffreys@hotmail.com? So you didn't send any e-mails to jrisen@aol.com; is that Is that an e-mail address you used? 10 A. No. 11 Q. What about jsthe7th.com? 12 A. No. 13 Q. So if there were e-mails on that computer between those 14 e-mail addresses, you wouldn't know anything about that; is 15 that correct? 16 A. I never e-mailed -- hotmailed at all. No, I would not. 17 MR. OLSHAN: 18 THE COURT: 19 MR. POLLACK: 20 THE COURT: No further questions. Any redirect? No, Your Honor. All right, thank you, Mr. Gilby, for your 21 testimony. 22 appreciate your being here. It was a long trip for about five minutes, but we 23 (Witness excused.) 24 25 Was that an e-mail you used? THE COURT: All right, counsel, you need to approach the bench. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 165 of 259 PageID# 6038 1321 1 (Bench conference on the record.) 2 THE COURT: 3 Actually, I need Mr. Sterling next to you. 4 Mr. Sterling? Mr. Sterling, I want to make sure for 5 the record, I assume your attorneys have discussed with you 6 your right to testify if you want to during this trial. 7 THE DEFENDANT: 8 THE COURT: All right. 9 them about your options? 10 THE DEFENDANT: 11 THE COURT: 12 And I assume you're electing not to testify; is that correct? THE DEFENDANT: 14 THE COURT: That is correct, Your Honor. All right. In any way, do you feel you've been forced or pressured into that position? 16 THE DEFENDANT: 17 THE COURT: 18 And you've consulted with Yes, I have, Your Honor. All right. 13 15 Yes, Your Honor, they have. No, I have not, Your Honor. And you're making it with the advice of counsel? 19 THE DEFENDANT: 20 THE COURT: 21 THE DEFENDANT: 22 THE COURT: Absolutely. You are an attorney? Yes, I am. All right, I think that's a sufficient 23 finding for the record. The defendant is voluntarily and 24 knowingly waiving his right to testify, all right? 25 obviously, give the jury instruction that he made that I will, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 166 of 259 PageID# 6039 1322 1 decision. 2 All right, I'm going to let the jury go home then. 3 MR. MAC MAHON: 4 THE COURT: 5 MR. MAC MAHON: 6 Yeah. THE COURT: 8 MR. MAC MAHON: On your exhibits? We haven't looked at the documents to see if -- 10 11 We haven't looked back through all the -- 7 9 If I may, one thing, Your Honor? THE COURT: We'll take care of that. Let's get the jury home. 12 MR. MAC MAHON: 13 THE COURT: Yes, Your Honor. Now, I'm going to tell the jury I have a 14 plea at 9:00 unrelated to this case. Because the jury's been 15 so good and we're way ahead of schedule, what I'm going to do 16 is have them come at ten tomorrow morning, and what we're going 17 to do tomorrow morning is the two closing arguments. 18 close the case before lunch. 19 instruct them after lunch, and they'll have the case for 20 deliberation tomorrow afternoon, all right? We'll We'll have a lunch break. I'll 21 So what I want to do after we take a brief break now, 22 I'm going to send the jury home, tell them to come back at ten. 23 I'm going to take ten minutes to pull the jury instructions 24 together. 25 The first thing I'll do is hear your argument. I assume you didn't prepare a brief or anything? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 167 of 259 PageID# 6040 1323 1 2 3 MR. MAC MAHON: We have a brief, Your Honor, but there's a little more than what's just in the brief. THE COURT: I'll give you a chance to argue the case, 4 argue the Rule 29 motions, and then depending upon what happens 5 as a result of that, we'll do a charging conference. 6 you go home tonight, you'll know what the charge looks like. 7 It's my practice, at some point this evening, I'll send you the 8 charge, so you'll have it physically with you tomorrow morning. 9 If there are any last-minute issues about the charge, So when 10 you've got between 9:30 and ten tomorrow morning to bring them 11 to my attention so we don't waste the jury's time. 12 need to be here. 13 here until ten. 14 chambers know. 15 reach us and let us know, and then we'll hear you right after 16 the plea, okay? So you-all If there's no issue, you don't have to be If there is an issue, you need to let my We're here by 7:30 in the morning. 17 MR. MAC MAHON: 18 MR. POLLACK: 19 THE COURT: 20 (End of bench conference.) 21 THE COURT: You can Yes, Your Honor. Thank you. We'll send the jury home. All right, ladies and gentlemen, we have 22 now concluded all the evidence in this case. What I'm going to 23 do because it takes a fair amount of time to get the case set 24 up for the very last two stages, which are the closing 25 arguments and then making sure all the evidence is in order so Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 168 of 259 PageID# 6041 1324 1 that when you get the case to deliberate, you have all the 2 correct evidence, and I need to make sure that all of the 3 instructions are typed and ready for you. 4 letting you get home early tonight. 5 be too upset about that. 6 So I'm actually I'm sure none of you will Tomorrow, just so you know what the schedule is for 7 tomorrow, I would like you here at 10:00, you'll have a little 8 bit later start time, and what we're going to do first thing 9 tomorrow morning is you're going to hear the closing arguments 10 of counsel. 11 that's going to be the morning session. 12 I've given each side approximately one hour. So Now, it's not my plan to give you a morning break 13 since you're starting a little bit late. 14 will have closing arguments tomorrow morning. 15 your lunch break. 16 give you the instructions. 17 going to take a bit of time, so I want you, you know, well fed, 18 relaxed, and fresh. 19 So the plan is we Then you'll get When you come back from lunch, I will then They take -- in this case, they're And that means you will get this case to begin your 20 deliberations sometime mid-afternoon tomorrow, which is 21 Thursday. 22 your schedule on Friday, unless it's a problem for any of you, 23 and I don't think we have any weather to worry about the rest 24 of the week and we avoided any problems today, I would like you 25 to plan to be here at 9:30 Friday morning unless you want to Because you have the case at that point, in terms of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 169 of 259 PageID# 6042 1325 1 come earlier. Once you start deliberating, you can set your 2 own schedule. If you-all want to start at 9:00, that's also 3 fine, but you've been on a 9:30 schedule, and my experience is 4 most jurors sort of get into a pattern they kind of like. 5 But in any case, Friday morning, there's no reason 6 why you can't start as early as you want because I will be 7 doing other matters unrelated to this case in this courtroom, 8 but at any point, if you need to interact with the Court, we'll 9 stop what I'm doing here and bring you back in, all right? 10 that you can plan your schedule for the next two days 11 accordingly. 12 It's extremely important that you continue to follow 13 my instructions about not conducting any investigation. 14 be thinking about the case. 15 about it. 16 have not heard the closing arguments or the Court's 17 instructions. 18 and we'll see you back here at 10:00 tomorrow morning, all 19 right? 20 So Don't Don't call or e-mail each other Don't in any respect start deliberating because you So just continue doing what you've been doing, I'm going to take a ten-minute break to let everybody 21 get things reset, and then we'll go and make sure that all the 22 exhibits are in. 23 the bench, all right? 24 25 We can take care of that once I come back on Thank you, ladies and gentlemen. (Recess from 2:55 p.m., until 3:13 p.m.) (Defendant present, Jury out.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 170 of 259 PageID# 6043 1326 1 THE COURT: All right, I think the first order of 2 business should be to make sure that the exhibits are in 3 evidence. 4 slowly read the exhibits which our records show are in 5 evidence, all right? My practice normally is to have Ms. Guyton simply 6 Mr. Olshan? 7 MR. MAC MAHON: 8 THE COURT: 9 MR. MAC MAHON: 10 MR. OLSHAN: Your Honor, may I stand? I'm sorry. Whatever make you comfortable. Thank you, Your Honor. Your Honor, one issue did come up during 11 our discussions before that I'd like to flag before we go 12 through all of them, if that's all right? 13 THE COURT: 14 MR. OLSHAN: All right. I had had discussions with counsel for 15 Mr. Sterling about not moving into evidence certain documents 16 concerning the defendant's EEO litigation, his civil 17 litigation, because there was a dispute -- the Court may or may 18 not recall this -- there was a dispute when Mr. Sterling filed 19 his lawsuit in SDNY as to whether the complaint contained 20 classified information, and there was a back-and-forth in 21 letters between counsel for Mr. Sterling at the time and the 22 CIA about whether there was classified information in that 23 complaint. 24 25 Counsel for the defense suggested because that was resolved in a way where it's unclear whether there was, the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 171 of 259 PageID# 6044 1327 1 defense doesn't like the inference that he may have done it. 2 We acceded to that. 3 The issue is we realized just now that one of those 4 documents that referenced the potential classified nature of 5 his civil complaint also at the bottom of it memorializes that 6 the CIA was rejecting his most recent settlement offer. 7 fact is something that, frankly, we would not have agreed not 8 to put in had we realized this at the time. 9 That So we've asked the defense if they would be willing 10 merely to stipulate that the settlement offer that is extended 11 in an exhibit that is in evidence, which is 66, was rejected on 12 a particular date, which would take this whole classified issue 13 and any documents related to it off the table. 14 understanding from the defense is they are not prepared to 15 stipulate to that fact. 16 THE COURT: 17 MR. POLLACK: 18 THE COURT: 19 MR. POLLACK: My Mr. MacMahon or Mr. Pollack? I think it's my issue, Your Honor. What's the exhibit number? There are a number of exhibits that the 20 government had asked if we would have objections to if the 21 government offered them, and we had indicated that we had. 22 government chose not to offer them. 23 The Agent Hunt testified that on October 31 of 2001, 24 Mr. Sterling was fired from the agency, and that within a few 25 days, Mr. Risen wrote his article about the New York office Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 172 of 259 PageID# 6045 1328 1 being destroyed in 9/11. 2 us to enter a stipulation to a fact that it has not elicited 3 from any witness, that on October 30, the CIA rejected a 4 settlement offer in the civil litigation. 5 The government now wants -- is asking It's obvious to the jury that he was fired the next 6 day and that the litigation did not get resolved, that it 7 continued, and there's -- 8 9 THE COURT: Well, we already have that -- that evidence is in this record. 10 MR. POLLACK: It's been testified to. I think there's been testimony about 11 the back-and-forth. I think what the government's asking now 12 is for us to stipulate to a new fact about a particular offer 13 and the date that it was rejected, and I don't see why it adds 14 anything and why we ought to be stipulating to new facts at 15 this point. 16 MR. OLSHAN: 17 THE COURT: 18 MR. OLSHAN: Your Honor, if I may? Yes. Agent Hunt testified that on that date, 19 October 31, as reflected in a different exhibit, the defendant 20 was terminated by the CIA. 21 that the CIA also rejected his settlement offer, which was one 22 of many. 23 That is different than the fact There's not been any testimony about that; that's 24 correct. The only reason the government agreed not to offer 25 that exhibit was because, frankly, we were understanding of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 173 of 259 PageID# 6046 1329 1 defense concern about this other issue that had to do with 2 whether there was classified information in the civil 3 complaint. 4 that bare fact that, in fact, this one settlement offer was 5 rejected. 6 We certainly would not have agreed not to put in THE COURT: But the reality of it is you haven't 7 tried to move it in, and the case is closed. So I'm not going 8 to reopen it at this point because that opens other cans of 9 worms. So the case is closed, so I'll -- okay. 10 misunderstood. 11 been entered that had to be changed somehow. 12 I I thought there was already an exhibit that had But that brings up a point. As you know, you have 13 been, both sides have been required to post publicly the 14 exhibits that have been entered into evidence. 15 exception for I think it's three, maybe four exhibits that are 16 not available to the public. 17 We have an Some of those exhibits that have been now posted 18 publicly were at one time classified. 19 declassified, and my understanding is that your technical 20 person has written through the classification like a line, and 21 then there's, what, a stamp "Declassified" that's on the 22 document. That's how they've been going out. 23 MR. OLSHAN: 24 THE COURT: 25 They've been That's right. Now, the documents that are in the witness book that would be going to the jury have not been Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 174 of 259 PageID# 6047 1330 1 treated that way, correct? 2 MR. OLSHAN: In other words -- yeah, that -- They certainly have not. They don't 3 have stickers on the, on the evidence binders that say 4 "Declassified," no. 5 THE COURT: Well, more than that, the individual 6 documents, to the extent we have a document in the book that 7 might still have "Secret" on it -- 8 9 MR. OLSHAN: through. 10 I believe they may have been struck I may be wrong on that. THE COURT: Here's my point: I'm not taking my time 11 to do this with you-all. 12 here. 13 both sides, it's your responsibility working with Ms. Guyton 14 and Ms. Gunning to make sure that the physical exhibits that 15 are going to go to the jury are in the proper format, all 16 right? 17 should want that coming back, all right? 18 Ms. Gunning is here, and you are Whenever it is that we recess for the day, counsel for That's not an issue I want coming back. Neither side So there will be three or four exhibits that will go 19 to the jury with the proper covers indicating that they are 20 still classified. 21 Now, one thing that's missing from the pack of jury 22 instructions that you-all gave me, it was, I think, possibly in 23 a voir dire question but we didn't have to ask it, was a 24 direction to the jury about how to handle these documents. 25 I'm going to take that early voir dire question that you had So Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 175 of 259 PageID# 6048 1331 1 and have to rearrange that into a question -- into an 2 instruction to the jury to tell them as to those three or four 3 exhibits, they have not been declassified, and therefore, once 4 this case is over, they can't be discussing them or reveal 5 their contents, all right? 6 And I assume the defense doesn't object to that. 7 MR. POLLACK: Your Honor, I certainly don't have any 8 objection to that instruction. I do have an objection to those 9 documents getting the red cover sheet with the word "Secret." 10 Similarly, how we did not do that with the exhibit books, if 11 they're going to be marked "Secret" and the jury is going to be 12 told they're secret and the jury is going to be told that they 13 need to return them, I think that is more than enough in making 14 those stand out for the jury as somehow being more important or 15 different than the other -- all the other documents in this 16 case, to then on top of that put the cover sheet, I think, is 17 just too much and more than is needed. 18 THE COURT: My understanding is that's how they have 19 to be handled. I will simply, though, I'll have to fashion an 20 instruction telling them they're not to draw any special 21 inference from the fact they have a cover on them. 22 to enable us to quickly retrieve them. 23 more benign than that. 24 instructions look for tonight. 25 yet, all right? That's just I'll make it a little And you'll have -- that's one of the I don't have that one written Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 176 of 259 PageID# 6049 1332 1 MR. POLLACK: Thank you, Your Honor. 2 THE COURT: All right. 3 MR. TRUMP: Your Honor, perhaps it would expedite 4 things if we simply have an instruction that except for those 5 three exhibits, all of the other exhibits and documents have 6 been now unclassified as a result of their use in a public 7 trial, and that any markings or words, "Secret," whatever, that 8 were on the documents have no effect in terms of their present 9 classification. 10 THE COURT: Well, even if that's the case, I think 11 that the record of this case needs to be consistent with what 12 may have been out publicly, and so -- 13 MR. TRUMP: No question, but we can do that when 14 we're done, but the way they saw the documents during the trial 15 and the way they were published is the way they're in the books 16 now. 17 classified; therefore -- They can be told that none of these documents remain 18 19 THE COURT: Is the defense comfortable handling it that way? 20 MR. MAC MAHON: 21 THE COURT: 22 That's fine, Your Honor. Is it fine? All right. Why don't you craft that for me, all right? 23 MR. TRUMP: That's fine, Your Honor. 24 THE COURT: All right. 25 MR. TRUMP: I just don't want them to be surprised by Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 177 of 259 PageID# 6050 1333 1 seeing something -- 2 THE COURT: -- that's different from what they saw. 3 MR. TRUMP: From what they saw up on the screen. 4 MR. MAC MAHON: 5 THE COURT: 6 MR. MAC MAHON: If I may, Your Honor? Yeah. Other than as to the other 7 instruction you were talking about, about not drawing any 8 inference from the red paper or whatever else it is, so I think 9 we would need both. 10 11 THE COURT: Right. I'm still going to do mine, and Mr. Trump is going to do his. 12 MR. MAC MAHON: 13 THE COURT: All right. All right? And again, Mr. Trump, I need 14 that as soon as possible so that I can get it in the packet, 15 because, you know, they have to be ready to go tomorrow, all 16 right? 17 Okay. All right, let me hear -- unless there's any other 18 housekeeping matters, I'm going to assume at this point all the 19 evidence is in that you expected to be in, all right? 20 just get the motions taken care of at this point. 21 MR. MAC MAHON: Thank you, Your Honor. So let's Your Honor, 22 we do have a brief memo that was prepared and which I can hand 23 up to the Court. 24 States. 25 I've already given a copy to the United THE COURT: All right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 178 of 259 PageID# 6051 1334 1 MR. MAC MAHON: Pursuant to Rule 29, Mr. Sterling 2 moves for a judgment of acquittal on Counts 1 through 9, Your 3 Honor. 4 of go backwards, the obstruction of justice count -- The first basis, which is not in the motion, we'll kind 5 THE COURT: That's Count 10. 6 MR. MAC MAHON: That's Count 10, Your Honor. 1 7 through 9 on venue purposes, but obstruction of justice I 8 specifically want to address and note to the Court that an 9 obstruction count in this case is particularly poisonous for 10 Mr. Sterling because it's added to the case to make it look as 11 if there was some consciousness of guilt in that when he got a 12 subpoena, he went and did something he wasn't allowed to do. 13 So I think the Court needs to look at this very carefully. 14 The exhibit that we saw in evidence, which was the 15 actual subpoena, does not request that he preserve any records 16 of his contact with Mr. Risen whatsoever. 17 cross-examination admitted that the CNN article and the 18 communication with Mr. Risen had nothing to do with his work 19 whatsoever. 20 Agent Hunt even on So there is no way that by deleting that e-mail, even 21 if that's what the jury thinks happened, that that could rise 22 to the level of obstruction of justice because what we have is 23 the document has got to be construed against the government, 24 the actual list of what's asked for, and if you go through the 25 list -- and I don't have the exhibit number before or after, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 179 of 259 PageID# 6052 1335 1 Your Honor, but there's -- I'm sure we can come up with the 2 exact exhibit number, but when you look at the list of what he 3 was told not to destroy, you'll see that. 4 And I would also add with respect to that, Your 5 Honor, that the preservation letter went out in April, not by 6 July, when this happened. 7 the record as to when this was deleted relevant to the actual 8 subpoena itself. 9 The subpoena is in June so -- THE COURT: 10 So there isn't even any evidence in I think it's Exhibit 139. MR. MAC MAHON: Yes, Your Honor. I -- we didn't have 11 this written up as -- so -- exactly, Your Honor. They could 12 have been destroyed anytime after the peak in May -- the 13 service, but either way, it's not even requested. 14 mean, I think it's important, the government's got to put on 15 some evidence that would be, would let that charge go to the 16 jury. 17 because of the grand jury here in Virginia. So we can, I It's not a -- there's no venue issue on the obstruction 18 THE COURT: Correct. 19 MR. MAC MAHON: I understand that, but I don't think 20 that -- and again, I think it's highly unfair to put that issue 21 to the jury based upon a complete lack of evidence that's 22 before you. 23 Mr. Sterling whatsoever. 24 looked at are classified documents in his possession that he 25 didn't destroy, so when the search warrant is executed on his There's no other evidence of obstruction by In fact, the 404(b) evidence that we Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 180 of 259 PageID# 6053 1336 1 house, those documents are still there, and so that's another 2 basis for that. 3 With -- and also with respect to Count 8, which is 4 mail fraud, Your Honor, this is not a mail fraud case. I 5 really don't, I don't think that the government has made any -- 6 put on any evidence that would support the elements of the 7 offense of a scheme or artifice to defraud anybody in a way 8 that use of the mails -- I don't think we heard evidence of any 9 mailing other than by Simon & Schuster whatsoever, that Simon & 10 Schuster may have shipped books down to Virginia. 11 really be Mr. Sterling's responsibility as a criminal basis. 12 That can't The, the other evidence was this FedEx receipt that 13 Agent Hunt talked about, and she was very clear in her 14 testimony that there was no way to tell whether that had 15 anything to do whatsoever with this case at all. 16 So really, every element of 18 U.S.C. 1341 is 17 lacking, and that charge, I think, was just brought because of 18 the venue issues with respect to the other charges. 19 20 THE COURT: All right, let me stop you there and have the government respond to those first two arguments first. 21 Mr. Olshan? 22 MR. OLSHAN: 23 Mr. MacMahon went in. 24 THE COURT: 25 MR. OLSHAN: Your Honor, I'll go in the order that Yeah. So as to the obstruction count, there is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 181 of 259 PageID# 6054 1337 1 no dispute that the grand jury -- on its face, that grand jury 2 subpoena was from the Eastern District of Virginia. 3 it clear there was a grand jury investigation here. 4 That makes What's important about the service of that subpoena 5 is not so much what it calls for but that it puts the defendant 6 on notice that the FBI is investigating. 7 that the article that was deleted was from three-and-a-half 8 years before the snapshots were made. 9 the defendant, while he was employed by the CIA, worked on 10 Iranian matters and nuclear matters. 11 of this entire trial. 12 There was testimony The testimony was that That's been the subject It's very clear, certainly viewing the evidence in 13 the light most favorable to the government at the Rule 29 14 stage, that by receiving a grand jury subpoena in the middle of 15 those two snapshots, the defendant was on notice that he was 16 being investigated or that there was a grand jury 17 investigation. 18 THE COURT: All right, I think there's enough to let 19 this case go to the jury on this count. 20 document was in his e-mail in March and then disappears the 21 second time -- between the first and the second look-ats, and 22 the timing of all this, that the subpoena comes in the middle 23 of that, I think is enough circumstantial evidence to let the 24 case go to the jury. 25 The, the fact that the And I do think that the document itself, the rider, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 182 of 259 PageID# 6055 1338 1 it says "any and all." That's pretty expansive. 2 doesn't have to specify with Mr. Risen. 3 documents" is a very broad request for documents, so I don't 4 think that the defendant's argument that the failure to specify 5 Risen's communications undercuts the strength of that argument. 6 So I'm going to deny the motion as to Count 10. 7 How about Count 8? 8 MR. OLSHAN: 9 Honor. It certainly "Any and all Count 8 is the mail fraud count, Your I'll start with the actual mailing. There was a 10 stipulation, I read it today, as to the shipment of the books 11 into the Eastern District of Virginia from New Jersey. 12 As the Court knows, the actual jurisdictional element 13 for purposes of mail fraud just needs to be reasonably 14 foreseeable to the person who executes the scheme to defraud. 15 THE COURT: 16 MR. OLSHAN: 17 THE COURT: 18 MR. OLSHAN: But how were they shipped? By a commercial carrier. How does that constitute mail fraud? It can be by a, by the U.S. Postal 19 Service or by a commercial carrier, and it's alleged that way, 20 Your Honor. 21 THE COURT: 22 MR. OLSHAN: 23 THE COURT: 24 MR. OLSHAN: 25 As U.S. Mails or interstate carrier? Correct. Let me look. For -- I will go ahead and apologize for not having a case at the ready, but for purposes of mail fraud, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 183 of 259 PageID# 6056 1339 1 I believe the law is fairly clear that it does not need to be 2 by the United States Postal Service. 3 4 THE COURT: It can be by -- -- a private or commercial interstate carrier. 5 That's how you've alleged it in the -- 6 MR. OLSHAN: 7 This is page 26 of the indictment. 8 THE COURT: 9 MR. OLSHAN: 10 Right, correct. THE COURT: 11 abetting instruction. 12 MR. OLSHAN: 13 THE COURT: 14 MR. OLSHAN: 15 THE COURT: 16 MR. OLSHAN: Right. And here you've got section 2. Yes. And I didn't get overnight an aiding and Correct. All right. I can address that. All right, you're reading the code book. Mr. Trump has handed me the code book, 17 and in the statutory text for 1341, it says, "or deposits or 18 causes to be deposited any matter or thing whatever to be sent 19 or delivered by any private or commercial interstate carrier," 20 and so the stipulation was that they were, that they were 21 shipped by interstate, by commercial carrier from New Jersey to 22 the Eastern District of Virginia. 23 THE COURT: 24 MR. OLSHAN: 25 All right. As to the scheme or artifice to defraud, the evidence is that the defendant through the course of his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 184 of 259 PageID# 6057 1340 1 career executed multiple secrecy agreements and SCI 2 nondisclosure agreements where he was obliging himself not to 3 disclose, not to co-opt to the CIA's property, which is all of 4 the information he came into possession of during the course of 5 his employment. 6 By executing those agreements, he was defrauding the 7 CIA to the extent that he would later break them. He was 8 saying, "I'm going to abide by these," and he didn't. 9 was leading the CIA to believe, "I understand my oath," and so So he 10 the scheme is that by doing that, he was able to defraud the 11 agency out of the property, which is its -- 12 THE COURT: But he had to have an intent to defraud 13 at the time he entered those statements, those agreements. I 14 think the mail fraud is a real stretch as a matter of law. Do 15 you have any cases that have used that theory for this type of 16 a fact pattern? 17 improper disclosure of classified information, misuse of 18 government property, you know, retaining government property, 19 but fraud is different. 20 I mean, because essentially, this is a case of Every time a person, you know, misuses their 21 employer's property doesn't mean there's a fraud that's been, 22 happened, and if the basic argument is that the fraud occurs 23 when he signs these agreements that he will not divulge the 24 government's secrets and then later on years down the road he 25 divulges the secrets, I don't know how that could support a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 185 of 259 PageID# 6058 1341 1 scheme. 2 MR. OLSHAN: 3 MR. TRUMP: 4 MR. OLSHAN: Your Honor -One moment, Your Honor? So, Your Honor, the reason why the 5 defendant was granted access to the information in the 6 documents both in this program and in all of his other 7 assignments during the entire tenure he was at the CIA was 8 because he had made that oath. 9 So from 1993 through when he was ultimately finally 10 finished at the CIA in January of 2002, the CIA was under the 11 impression that this man was obliging, was honoring his secrecy 12 agreement. 13 took place, and in order for him to have the document that he's 14 alleged to have had, that occurred in 2000. 15 that he was in possession of other documents even after he left 16 the CIA. Prior to his departure from the CIA, this operation We have evidence 17 The fact is that if the CIA had known that this man 18 was intent on not abiding by his secrecy agreements, he would 19 not have been allowed access to these programs during the time 20 from '93 to 2002. 21 THE COURT: But the problem is there's no evidence in 22 this case that at the time he signed those initial 23 nondisclosure agreements, there was any intent or plan on his 24 part to violate those agreements. 25 after the fact, and then he had possibly a motive and possibly Events occurred many years Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 186 of 259 PageID# 6059 1342 1 did these other acts. 2 No, the mail fraud count I just don't think fits 3 these facts, and no one's given me a case or a pattern where 4 this type of theory has been used, and in my experience, I've 5 not seen a mail fraud count used under this type of a fact 6 pattern. 7 been attentive, and your case is not going to get made or 8 broken on Count 8 so -- 9 You've got enough counts going to this jury. MR. OLSHAN: 10 THE COURT: 11 MR. OLSHAN: They've Just for the record -Yeah. -- one last point, Your Honor: An 12 individual can be convicted of mail or wire fraud when there 13 have been material omissions as well as affirmative 14 misrepresentations. 15 THE COURT: 16 MR. OLSHAN: That's correct. And so when somebody who is under an 17 ongoing obligation to bring to the attention of people with 18 whom he works that he has an intention to do something to 19 disclose something, that's a material omission, and so part of 20 the case in this, in this prosecution is that the defendant 21 disclosed the existence of that New York office. 22 prior to his departure. 23 24 25 That occurred And so the government -- it's not just that he signed certain agreements. THE COURT: But that's not what you've charged in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 187 of 259 PageID# 6060 1343 1 Count 8. 2 MR. OLSHAN: 3 THE COURT: One moment, Your Honor. You've only discussed Author A's book for 4 commercial retail. 5 delivered by the U.S. Postal Service or any private or 6 commercial interstate carrier, blah, blah, blah, blah, blah. 7 You don't have it there. 8 the motion as to Count 8. 9 The scheme is to knowingly cause to be MR. MAC MAHON: 10 It's not there, so I'm going to grant Thank you, Your Honor. And, Judge, I would argue the sufficiency of the 11 evidence on the -- we'll just do all the 793 cases now, issues, 12 but specifically in the brief that I've sent to you, that we've 13 delivered to you is the issue of whether the government has 14 proven venue at all. 15 THE COURT: 16 MR. MAC MAHON: 17 THE COURT: We've proposed an instruction to you -I don't think your instruction is right. Excuse me? I don't think your instruction is right. 18 I gave you my venue instruction, which I think is a better 19 statement of the law. 20 occurs in a district, then that district does have venue. 21 If any act in furtherance of a crime MR. MAC MAHON: We were citing you, Your Honor, in 22 your opinion in this case in the grand jury subpoena against 23 Verizon. 24 25 THE COURT: O'Malley. No, actually, this is coming from O'Malley -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 188 of 259 PageID# 6061 1344 1 2 MR. MAC MAHON: The proposed instruction -- I'm sorry, Your Honor. 3 THE COURT: Go ahead. I gave you a copy of what I 4 think is the proper proposed instruction, but the government is 5 correct. 6 furthers the crime occurring in a district, so as you know, I 7 mean, there's a case where they used the Federal Reserve Bank 8 of Richmond, right? 9 bank. I mean, all there needs to be is one act that One transaction occurred through that That's enough to give venue in this district. 10 MR. MAC MAHON: 11 THE COURT: 12 Now, whether there's -- whether the evidence is here, I'll hear you argue that, all right? 13 14 I understand, Your Honor. MR. MAC MAHON: Okay. Just for the record, Your Honor -- 15 THE COURT: All right. 16 MR. MAC MAHON: -- the way we read your court order 17 in this case was that the government needed to have Mr. Risen 18 testify because they had to prove beyond a preponderance of the 19 evidence that Sterling was in the Eastern District when he 20 disclosed the national defense information to Mr. Risen. 21 That's where we, we got this instruction. 22 And I think that -- and this is a strange statute, 23 793, and one of the elements is plainly disclosure or receipt 24 of the information. 25 happen in the same place, but we think that if this is the One of those two things obviously could Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 189 of 259 PageID# 6062 1345 1 instruction you're going to give, we would object to that as 2 well because I think the jury needs to be instructed that they 3 have to find that the disclosure or the receipt of the evidence 4 took place in this district. 5 Otherwise, it could be that the harm -- you could 6 bring this case anywhere where the CIA could come forward and 7 say, well, the harm to the United States happened in all 50 8 states. 9 10 THE COURT: No, not the harm. There has to be an act in furtherance of the crime to give you venue. 11 MR. MAC MAHON: 12 your ruling, Your Honor. 13 An act. THE COURT: Well, I've made my -- I understand All right. Let me hear from the 14 government, though, because there's no use in the Court giving 15 an incorrect statement of the law. 16 after the fact. 17 MR. TRUMP: 18 MR. OLSHAN: It comes back to haunt One moment, Your Honor. Your Honor, having just gotten the 19 Court's instruction, we, we agree with that instruction, but 20 again, we'll take the Court up on the Court's offer that if 21 there's anything that we, that we in discussing this later 22 decide we need to flag for the Court, we will do that by first 23 thing tomorrow morning, but as we sit here, we think this is an 24 appropriate instruction. 25 THE COURT: Well, I'm just now looking at the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 190 of 259 PageID# 6063 1346 1 defendant's brief. 2 the Fourth Circuit. 3 venue on a count is proper only in a district in which an 4 essential, an essential conduct element of the offense took 5 place. 6 They are citing some, some case law from Let's see, the Bowens case. It says there I don't think that's the law any longer. Now, again, 7 there may be some special venue statutes that I'm not aware of 8 for these particular offenses, but I do know in I think it was 9 a wire fraud case that I had, and I don't know if any of 10 you-all were the prosecutors on that one, but it was a case 11 where the only connection to the EDVA was the use of a server 12 in this district as part of the communications. 13 And that was enough, as I recall, with the Fourth Circuit. 14 That's all. And I know there's -- it might have been in the 15 Ebersole case, where we had a fraud count, and I think the 16 venue for that was because one of the Federal Reserve -- the 17 Federal Reserve was used in Richmond, and it got it in the 18 Eastern District of Virginia. 19 case law, I know, addressing venue with some very, one might 20 think, ephemeral connections to the district, but the 21 connection is that part of the instrumentality of committing 22 the crime involved activity in the district. 23 been the -- it might not have been, you know, the key or most 24 dramatic events, but activity in the district did occur, and 25 that was enough for venue. I mean, there's Fourth Circuit It might not have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 191 of 259 PageID# 6064 1347 1 So I think that proposition is correct the way I've 2 written it in that instruction, but if you find case law to the 3 contrary, let me know, all right? 4 MR. OLSHAN: Along those lines, Your Honor, we would 5 note, and I think this is relevant for some of the other issues 6 as well, that the statutory language for 793 contains the 7 word "causes," and so therefore, in order to meet the statutory 8 definition, it would, it would be sufficient that any causative 9 act occur in the relevant district. 10 THE COURT: I'll let you two -- I'll let you research 11 that, but, I mean, right now, on that argument -- now, the 12 secondary question, though, is evidence, evidence of venue, all 13 right? 14 MR. MAC MAHON: And if I may, Your Honor, I make this 15 just for the record, that same argument on the retention count, 16 that the essential element would be retention in this district. 17 With respect to the Court's ruling, I just want to put that on 18 the record. 19 With respect to evidence of venue, Your Honor -- 20 THE COURT: 21 22 Argue the retention issue in terms of venue. MR. MAC MAHON: There has to be some evidence that 23 Mr. Sterling retained some document that's been charged in this 24 case here in the Eastern District of Virginia. 25 retention, and frankly, I think for the conveyance charge, too, Unlawful Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 192 of 259 PageID# 6065 1348 1 that he would have had to -- he could have conveyed it in some 2 other district, but there's no evidence of that, but for that 3 charge to lie here, there would have to have been some evidence 4 of possession of the property in the first place and/or 5 conveyance afterwards. 6 You know, in this case, Judge, there's no AOL 7 evidence as to the servers. The government didn't put on 8 evidence that these e-mails from Mr. Risen back and forth went 9 through Virginia or anything. There's no classified 10 information that's even referenced in any of those e-mails, so 11 they can't make the argument that the Court made here because 12 I'm sure it was put on through expert testimony. 13 But with respect to venue, for either one of those 14 two counts, whether it's a charge of retention or conveyance of 15 government property, I guess this goes together. 16 Special Agent Hunt was very clear they don't have any evidence 17 of where these things happened. 18 clear. 19 where he disclosed anything. 20 disclosed. 21 copy of the letter, Your Honor. 22 I mean, It couldn't have been any more They don't know where it happened. They don't know They don't know what he They have no evidence that Mr. Sterling even had a He's charged with the letter that's published in the 23 book State of War, and Agent Hunt admitted they have no 24 evidence of when he got it, where he kept it, or anything. 25 And when the jury hears that, and that's the state of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 193 of 259 PageID# 6066 1349 1 the government's case, to allow it to go forward even on the 2 elements of the retention of others is really a too far stretch 3 because they're being asked to guess, and there's a, there's a 4 line between an allowable inference and an actual speculation 5 or a suggestion that something may have occurred, especially in 6 a case as serious as this. 7 8 So both of those arguments in that regard, Your Honor, I think, are made. 9 THE COURT: All right, Mr. Olshan or Mr. Trump? 10 MR. TRUMP: On the document issue, Your Honor, the 11 evidence in the case is that Robert S. and the defendant and 12 Merlin conferred on the creation of a letter. 13 and forth. 14 prior to the Vienna operation. 15 They went back A copy of the letter is in one of the final cables Robert S. in a cable communicated, suggested changes 16 to Mr. Sterling to confer with Merlin to make those changes. 17 Merlin testified that he made the final changes and he gave a 18 copy of the letter to the defendant about two weeks prior to 19 his departure to Vienna. 20 final changes in the defendant's hands. He puts a copy of the letter with the 21 THE COURT: In New York. 22 MR. TRUMP: In New York. New York was destroyed in 23 9/11. To the extent that there is, there was any physical 24 paper copy of anything, it had to be removed from New York 25 prior to 9/11. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 194 of 259 PageID# 6067 1350 1 Where did the defendant go? He moved to Virginia. 2 The only place he could have stored that document was at his 3 home in Virginia. 4 light most favorable to the government, that's the only place. 5 He didn't have an office at the CIA anymore. 6 could have kept that document was at his home. 7 When you take all the inferences in the The only place he The next place where he lived, in Missouri, is where 8 he kept whatever other documents he had from the CIA, he kept 9 them at his home. 10 So I think the logical inference that can be drawn 11 particularly with respect to a preponderance standard is that 12 that's where that letter resided before it was given to the 13 reporter, Mr. Risen. 14 THE COURT: I think it's enough because the 15 preponderance standard is much less than the proof beyond a 16 reasonable doubt standard. 17 and 9. 18 19 20 I'll deny the motion as to Counts 3 And is it the same venue argument as to the remaining counts? MR. MAC MAHON: Yes, Your Honor, just the added twist 21 that again -- Your Honor, by the way, nobody said that 22 Mr. Sterling even left New York with this letter, but with 23 respect to the disclosures, there isn't any evidence at all of 24 a disclosure. 25 that, but there's no evidence that Mr. Sterling ever met with They don't get to say, use their 404(b) for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 195 of 259 PageID# 6068 1351 1 Mr. Risen, again, very clear testimony from Agent Hunt, that he 2 ever met with him at all in Virginia, that he disclosed 3 anything to him in Virginia. 4 And these brief phone calls where the agents say they 5 don't have any idea what was discussed on those phone calls, 6 there's three or four phone calls when he's in Virginia, but 7 the jury can only speculate on what happened on those phone 8 calls. 9 and it also isn't even enough of a phone call to transfer any That can't possibly be enough for this to go forward, 10 information. 11 lot more information. 12 We know from looking at the book that there was a You have about, I don't have the exhibit in front of 13 me, maybe it's two minutes, three minutes of phone calls in 14 Virginia from Mr. Sterling to Mr. Risen's house, and there's 15 no, no evidence whatsoever -- and also, because nobody ever, 16 the government never even asked Mr. Risen, there's no evidence 17 of what was ever talked about on there. 18 So they can't draw an inference from the fact that 19 there was a document in Maryland on this one, and they really 20 just don't have any evidence. 21 law even as to the, beyond the venue argument as to whether the 22 charge should go forward even in the light most favorable to 23 the government. 24 25 THE COURT: It's insufficient as a matter of Because the jury is allowed to make conclusions based on circumstantial evidence and they are Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 196 of 259 PageID# 6069 1352 1 allowed to make reasonable inferential calls and there's enough 2 smoke in this case that I think it can properly go to the jury, 3 so I'm going to deny the motion on the other counts, and we'll 4 see what the jury does with the case, all right? 5 that's the case. 6 Now, let's go to the charge itself. All right, so So I'm going to 7 take out, obviously, those instructions that relate to the mail 8 fraud. 9 And let's start with the government's proposed 10 verdict form. Is there any objection to the verdict form? 11 Obviously, we'll amend it so that Count 8 comes out. 12 Anything -- I hope you-all looked at it carefully. 13 MR. MAC MAHON: 14 THE COURT: Your Honor -- I'm going to -- I'm sorry, I'm going to 15 take off of the verdict form the listing of the counts under 16 criminal number. 17 18 MR. TRUMP: We will remove that from the verdict form, Your Honor. 19 20 We don't need that on the verdict form. THE COURT: All right. And Count 8 needs to come out. 21 Was there anything -- I think the rest of it is 22 clear. Now, you know, the verdict form itself doesn't 23 differentiate the specifics of each count, but because the jury 24 instructions are going to go into the jury room and in the 25 explanation of the charges, because I double-checked this, the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 197 of 259 PageID# 6070 1353 1 government does have the date and the specifics as to each 2 count, so the jury, if they take those instructions with the 3 verdict form, should be able to sort out what we're talking 4 about, all right? 5 6 7 8 9 10 11 But, Mr. MacMahon, did you-all get a chance to really look at this carefully? MR. MAC MAHON: Yes, Your Honor. I don't think that the list of the charges needs to go at the top. THE COURT: Right. MR. MAC MAHON: We're going to take that out. This part's going to come out. Then we don't object to the verdict form, Your Honor. 12 THE COURT: All right. 13 MR. TRUMP: I just want to note that in reviewing the 14 instructions last night and taking out the headers and the 15 footnotes, we gave you a packet as they existed before, but I 16 also handed to your clerk a suggestion for the definition of 17 "NDI" in terms of the national defense information defined. 18 THE COURT: Go ahead. And? 19 MR. TRUMP: And in the first paragraph, which reads, 20 "For Counts 1, 2, and 4 through 7, the term 'information 21 relating to the national defense,'" included the 22 phrase "including matters relating to the nation's intelligence 23 capabilities." 24 25 That's out of Gorin, Boyce, Truong, Rosen. All of those cases discuss the fact that national defense information is not limited to military matters, but I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 198 of 259 PageID# 6071 1354 1 think -- I don't want to misquote Judge Ellis, but I think his, 2 his quote from his written decision was that it includes all 3 matters relating to foreign policy and, and intelligence. 4 So I think just adding that phrase, "may reasonably 5 be connected with the national defense of the United States 6 against any of its enemies, including matters related to the 7 nation's intelligence capability," is consistent with the law. 8 9 THE COURT: All right. Does defense want to address that, Mr. MacMahon? 10 MR. MAC MAHON: Yes, Your Honor. The form 11 instruction is sufficient. 12 leading, are kind of leading the jury to a certain position. 13 The term "national defense information" describes itself. 14 don't think it's necessary for you to add to the instruction 15 things that expert witnesses have said here or otherwise 16 because -- 17 THE COURT: A lot of these instructions are Well, we're not. I It's what other 18 colleagues have said, and it's been not reversed by the Fourth 19 Circuit, but I think because the word "defense" is in that 20 heading, it could mislead the jury, and they do need to 21 understand that it doesn't just affect the military. 22 does relates to intelligence sources. 23 It also So, I mean, you know, I don't think it's a 24 misstatement of the law, and I think it helps clarify things 25 for the jury. If it's wrong on the law, you need to make sure Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 199 of 259 PageID# 6072 1355 1 you've told me. 2 MR. MAC MAHON: No, it's wrong on the law in the 3 sense that we're describing what the statute, what the statute 4 reads, and then we're adding words to it in the sense that 5 tailors itself to what the government thinks it's put on in its 6 case. That's what I -- 7 THE COURT: 8 MR. MAC MAHON: 9 10 All right. It's not a misstatement of law. I just don't think that it's necessary, and it's unduly prejudicial as it indicates. 11 THE COURT: Mr. Trump? 12 MR. TRUMP: I could just -- I have the quote from the 13 Morison case and the Rosen case, and Judge Ellis summarizes 14 Morison and Truong and says, "The phrase 'information related 15 to national defense' has consistently been construed broadly to 16 include information dealing with military matters and more 17 generally with matters relating to the United States foreign 18 policy and intelligence capabilities." 19 20 THE COURT: keep that in. 21 Yeah, I'm going to let it -- I'm going to That's not an improper statement of law. All right, there was an objection to the government's 22 definition of "possession," and again, is "possession" a term 23 of art in these statutes any different from any other criminal 24 statute? 25 MR. MAC MAHON: Can we go back, Your Honor? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 200 of 259 PageID# 6073 1356 1 THE COURT: I'm sorry. 2 MR. MAC MAHON: I'm sorry, but in the definition of 3 "national defense information," and I think you were looking at 4 the government's exhibit, the last sentence says, "Finally, a 5 person 'not entitled to receive' NDI can include the press or a 6 member of the press." 7 8 THE COURT: I can leave that out. That's not part of the definition. 9 MR. MAC MAHON: 10 11 I haven't -- THE COURT: Okay. Thank you, Your Honor. I mean, all right, we'll strike that from it, okay? 12 All right, now, there was an objection by the defense 13 to the government's proposed possession instruction, and my 14 question is why are we not just using the standard instruction 15 for possession? 16 MR. MAC MAHON: 17 instruction is that? 18 THE COURT: 19 MR. MAC MAHON: 20 MR. OLSHAN: 21 THE COURT: Your Honor, I'm sorry, what The number? I know. It's 8. No. 8? You objected to it, so -I can't tell. 8, Your Honor. I took your numbers off. My 22 problem is I pulled it out of my set because I didn't like it, 23 either. 24 25 MR. MAC MAHON: Yes, Your Honor. that the standard instruction would be fine. Our objection is This goes into Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 201 of 259 PageID# 6074 1357 1 too much theory of the government's case as to what constitutes 2 possession. 3 THE COURT: Now, the only thing is that we're 4 really -- at no point are we talking joint possession in this 5 case. 6 actual construction, aren't we? We're talking actual or -- actually, we're just talking 7 MR. MAC MAHON: 8 THE COURT: 9 MR. OLSHAN: That's all I understand, Your Honor. Who's addressing possession? Mr. Olshan? Your Honor, I think the definition of 10 "lawful possession" and "unauthorized possession" are important 11 to keep in here. 12 to whether the defendant lawfully possessed information versus 13 unlawfully possessed a document or tangible item, so it is 14 necessary to instruct the jury as to the distinction between 15 "lawful possession" and "unauthorized possession," and in order 16 to discuss either of those, you have to get into who is 17 permitted to have possession of this type of information, and 18 that's individuals with a need to know. 19 offenses get at. 20 They are terms that appear in the statute as MR. MAC MAHON: That's what the 793 Just briefly, the evidence in this 21 case, Your Honor, is that after maybe it's May 1 of 2000, 22 Mr. Sterling was not authorized to have any of this 23 information. 24 possessed this information at some point in time after he 25 was -- so to get into all these -- the actual facts of the case So the government has to prove that he actually Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 202 of 259 PageID# 6075 1358 1 are actual possession that had to have continued past the time 2 he was allowed to have it, there is no argument that he had a 3 need to know after that date. 4 THE COURT: Well, actual possession basically is the 5 person who knowingly has direct physical control over a thing 6 at a given time. 7 need to be in that definition. 8 possession instruction. 9 10 That's actual possession. MR. OLSHAN: So we -- that does That's the core of the May I have a moment to confer with my colleagues? 11 THE COURT: 12 MR. OLSHAN: Yeah. Your Honor, as we read it, lawful 13 possession does need to be changed. 14 are 793 counts deal with the defendant's unauthorized 15 disclosure of information. 16 Half of the counts that Obviously, when you leave the employment of the CIA, 17 you cannot purge your brain of information that you know. 18 retained there, and you are in lawful possession of it so long 19 as you don't disclose it in some unauthorized fashion. 20 It's So the definition as it currently reads does need to 21 be changed because "lawful possession" does not mean possession 22 of classified information by a person who holds an appropriate 23 security clearance and has a need to know. 24 when somebody leaves their employment with the CIA or anywhere 25 else. That's not the case They are still in lawful possession of it regardless of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 203 of 259 PageID# 6076 1359 1 2 whether they had the sufficient clearance. So that the definition should be something more akin 3 to "lawful possession" means possession of classified 4 information that a person obtained while they held the 5 appropriate security clearance and had the need to know. 6 THE COURT: We're going to get into a degree of 7 complexity here because we're talking both information in the 8 head and physical documents, two different types of 9 information. So I want both sides to sit down and think about 10 this, but the possession instruction needs to be redrafted. 11 I'll take a crack at it as well, all right? 12 MR. MAC MAHON: 13 MR. TRUMP: 14 Okay. Thank you, Your Honor. I assume, Judge, there's no debate that information can be possessed. 15 THE COURT: Of course. 16 MR. TRUMP: That's not the issue. 17 THE COURT: No, that's not the issue. 18 MR. TRUMP: That's been well settled in terms of the 19 case law for decades, that you can possess classified 20 information. It doesn't have to be a tangible possession. 21 THE COURT: 22 MR. MAC MAHON: 23 Correct. The difference here, Judge, is there are charges dealing with tangible evidence. 24 THE COURT: It's both. 25 MR. MAC MAHON: It's both. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 204 of 259 PageID# 6077 1360 1 2 THE COURT: That's the problem. There's a tangible evidence charge, and then there's just information. 3 MR. OLSHAN: Right. So that's why the distinction 4 does make a difference, and just giving a possession charge 5 might not provide the jury with the appropriate instruction as 6 to the fact that there is a distinction between lawful 7 possession and unlawful possession. 8 with information. 9 items such as a letter that the defendant retained when he 10 11 Lawful possession deals Unlawful possession deals with tangible left. THE COURT: Well, again, we're here to try to help 12 the jury reach an appropriate decision in light of the correct 13 law and facts, and so it doesn't help if you give me a 14 muddled-up instruction. 15 MR. OLSHAN: Well, we agree. 16 THE COURT: 17 While you're on your feet, Mr. Olshan, what about So we need to get that one clarified. 18 this aiding and abetting issue? 19 Section 2, I think, in every one of these counts. 20 MR. OLSHAN: Because again, you've got Your Honor, we're not asking for a 21 specific aiding and abetting instruction. The only utility to 22 Section 2 in this case would be 2(b), which is the causation 23 prong, when you willfully cause an innocent intermediary to 24 effectively complete the crime. 25 before, already has in its statutory language causes, there's Because 793, as I mentioned Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 205 of 259 PageID# 6078 1361 1 no need to provide a separate instruction on Section 2(b). 2 3 THE COURT: All right, does the defense agree with that? 4 MR. MAC MAHON: Well, Your Honor, I don't know how 5 Mr. Risen has gone as far as he is now to he's completely 6 innocent of involvement in this. 7 book, I mean, I know that's out of it now, but the receipt of 8 all this information, the jury will hear, was, was a crime in 9 and of itself if Mr. Sterling wasn't authorized to release it, The charge of mailing the 10 but if the government is totally giving up on that Mr. Sterling 11 aided and abetted any crime and then can't use the acts that 12 Mr. Risen undertook, that would be the -- it would be 13 abandoning Mr. Risen as a player in determining the guilt in 14 this or innocence on any one of these charges, because I don't 15 understand why it was in there in the first place if Mr. Risen 16 isn't considered to have been, the term was inextricably 17 involved in these crimes. 18 So I'm not sure I understand the answer. Is the 19 government abandoning any possibility that Mr. Sterling 20 assisted Mr. Risen in committing a crime? 21 THE COURT: That's not -- no one has argued the case 22 this way. 23 statement, that Risen himself committed any crime. 24 25 I mean, that wasn't in either side's opening MR. MAC MAHON: That would be -- but if he aided and abetted, he'd have to aid and abet somebody who did commit a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 206 of 259 PageID# 6079 1362 1 crime. 2 THE COURT: Correct. Look, the government didn't 3 actually use the language "aid and abet." I just noted, 4 however, you've cited to that section in all these counts in 5 the indictment, and I wanted to make sure, I mean, you have the 6 right as the agency bringing the case to dismiss or to reduce 7 the charges. 8 to" portion of the charges, that's fine. 9 we don't need to get into aiding and abetting. If you were telling me you're dismissing the "and 10 MR. MAC MAHON: 11 THE COURT: 12 MR. OLSHAN: 13 THE COURT: It's dismissed, and That's fine, Your Honor. All right? Your Honor, just to be clear -If the statute says "causes," if within 14 793 it says "and causes something to be the case," then you've 15 got it within the statutory language of the principal offense, 16 and you don't need a separate aiding and abetting instruction, 17 nor did you need to even cite to that section when you indicted 18 the case. 19 MR. OLSHAN: That's correct. As the Court is aware, 20 even if there were a true aiding and abetting theory in the 21 sense that Mr. Risen would have been participating in the 22 crime, you still don't even have to cite Section 2 for it to be 23 instructed. 24 25 Here any Section 2 theory was causation, which is 2(b), not 2(a). So the Court is correct. Nobody has argued Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 207 of 259 PageID# 6080 1363 1 that Mr. Risen was a participant in the crime; rather, 2 Mr. Sterling caused Mr. Risen to communicate this information, 3 and that is contained in Section 793, and the causation 4 instruction that we submitted accounts for that. 5 6 THE COURT: instruction. 7 MR. OLSHAN: 8 THE COURT: 9 MR. OLSHAN: 10 That's exactly right, Your Honor. Excellent, all right. I think they're quite similar, but there does not need to be a separate one. 11 12 And therefore, I don't need a 2(b) THE COURT: All right. And I don't believe the causation one was a problem for the defense, correct? 13 MR. MAC MAHON: 14 nights ago, Your Honor; I'm sorry. 15 THE COURT: 16 MR. MAC MAHON: I did these objections a couple That's all right. I think we did object to the 17 instruction as it was written. 18 here. 19 THE COURT: 20 MR. MAC MAHON: 21 THE COURT: I don't have my objections All right, you don't have a set? Not of the objections. Well, all right, we'll print one out for 22 you so you've got it, but let me -- I want to go through your 23 objections now so that we don't have an issue down the road, 24 and I want to, I want to focus primarily on the specific 25 instructions. This would be on page 3 of your objections. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 208 of 259 PageID# 6081 1364 1 I told you yesterday I was not going to grant your 2 request to not instruct on the nature of the charges, and you 3 raised that with, with all of them. 4 practice in this court is to give some kind of instruction as 5 to nature of the charges, and I told you the alternative to 6 that was sending in the indictment, which I know you don't want 7 the Court to do, correct? 8 MR. MAC MAHON: 9 THE COURT: That's -- the standard That's correct. All right. So we're going to go ahead, 10 and I think the government's brief summary of each count was 11 sufficient. 12 with what they submitted. 13 That's what they submitted, and I intend to go So those objections are overruled. Then you had an objection to 8. I think we've just 14 addressed that one, but let me just make sure. 15 possession. 16 is, it's fine. 17 So we're working on possession. That's So that objection We're going to work on that. You objected to No. 9, which was the national defense 18 information. 19 striking the reference in the last sentence to the press, and 20 we are adding the intelligence information that was submitted. 21 So 9 has been taken care of. 22 We've been through that one as well. I'm With 10, reason to believe, your only objection to 23 that is you think it misstates the law and it's unduly 24 suggestive of guilt. 25 the language in the, in the charging document. I think "reason to believe" is part of That does have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 209 of 259 PageID# 6082 1365 1 to be explained to the jury. 2 3 So why is it a misstatement of the law? What law do you have that suggests that that's a misstatement? 4 MR. MAC MAHON: Your Honor, I think the objection is 5 just to the last paragraph. 6 term that I've seen before, but the government does not have to 7 prove, that could be used both to, that kind of language, we've 8 got at lot of this in these instructions where they're telling 9 the jury what they don't have to find, which is what, what I've 10 The reason to believe is a common objected to as we go along. 11 The jury should be instructed what they do have to 12 find and not led away in other directions. 13 adapted from the model jury instruction. 14 fine. 15 THE COURT: Let me take a look. It's obviously The model would be The problem is that 16 I pulled them out of order because I -- I don't know why the -- 17 I mean, the explanation of disjunctive versus conjunctive, I 18 think, is proper, but there's no issue in this case about a 19 non-enemy country being involved. 20 has been Iran and Russia, right? 21 need that last sentence starting with "Further." I mean, the whole question And so I don't know why we 22 You have no objection to the first paragraph. 23 MR. MAC MAHON: 24 THE COURT: 25 MR. MAC MAHON: No, Your Honor. All right. I think that's the form. I think Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 210 of 259 PageID# 6083 1366 1 that's from the model. 2 THE COURT: 3 government's response to that? 4 5 6 MR. OLSHAN: What's the defense response -- I'm sorry, Your Honor, the defense's objection was just to the second sentence? THE COURT: It's -- well, they have a problem in 7 particular with, I think, the last sentence of the second 8 paragraph, "Further." 9 10 11 MR. MAC MAHON: The last two sentences, Your Honor, I think is what I said. THE COURT: The law two sentences. The first two 12 sentences in the second paragraph are correct. 13 reads in the alternative, so proof of either will suffice," and 14 then the first sentence, you know, explains what the two 15 alternatives are. 16 MR. OLSHAN: Right. "The statute That's fine, Your Honor. The 17 statute does say "foreign nations," so it's enough to leave it 18 at that without breaking into -- 19 THE COURT: Fine. So I'm getting rid of the -- that 20 instruction is going to go as is, with the last two sentences 21 starting with the word "Further" to the end is stricken. 22 All right, Mr. Pollack? 23 MR. POLLACK: 24 slightly separate point to make. 25 instructed they can find either or, then they should also be I'm in agreement with that. I have a If the jury is going to be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 211 of 259 PageID# 6084 1367 1 instructed that they have to be unanimous on which one they 2 find. 3 MR. OLSHAN: No. Your Honor, many statutes are 4 charged in the disjunctive, and there's not a standard 5 instruction that they must agree as to the specific means 6 establishing -- excuse me, many -- yes, that's right. 7 THE COURT: Well, we can make a special verdict form 8 and see what they find. I mean, that's the other option on 9 that one, although I don't think -- unless you've got case law 10 that they have to be unanimous as to which one they find, I 11 think I'm going to leave it as is, because as a normal course 12 of business, you don't have to tell the jury. 13 acts in a conspiracy, they have to be unanimous on the, on 14 the -- or do they? 15 overt act, do they, in a conspiracy charge? 16 17 18 19 20 21 22 23 24 25 You do for overt They don't have to be unanimous on the MR. TRUMP: They just have to have unanimously decided there's at least one overt act. THE COURT: That an overt act, yeah. That would be consistent with finding either alternative. MR. TRUMP: There's no case law that suggests as to this type of element, that a special verdict is necessary. THE COURT: Yeah. No, we're going to leave it as is. All right, okay. Then the next objection was to 10, which I think is willful, right? I lost your numbers when I started redoing Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 212 of 259 PageID# 6085 1368 1 these, yeah. 2 3 MR. OLSHAN: I think we may have just finished 10. 10 was reason to believe. 4 THE COURT: 5 MR. POLLACK: 6 THE COURT: 7 10 Okay. MR. MAC MAHON: And they've objected to 11 as "Willfully" is a term you use all the time in instructing jurors, Your Honor. This additional language -- I'm sorry, Your Honor, can I sit down? 11 12 11 is willful. well. 8 9 Okay. THE COURT: Yes, whatever makes you comfortable. can hear you. 13 MR. MAC MAHON: I'm sorry. But the in deciding 14 willfully, you may consider all the evidence introduced at 15 trial, including any evidence concerning the classification 16 status of information. 17 18 THE COURT: there. 19 And again, 12 was the nature of offenses, so that's not going in. 21 16. 25 13, 14, 15, there was no objection. All right, now, we've already defined "national defense information," so I don't think that's a problem, right? 23 24 Yeah, you're right; that shouldn't be in That's coming out, all right. 20 22 I MR. OLSHAN: I'm sorry, which instruction, Your Honor? THE COURT: Well, I think I have the right number. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 213 of 259 PageID# 6086 1369 1 Again, as I said, I got rid of these numbers. 2 No. 16, what's your 16? 3 MR. POLLACK: 4 "willful retention," Your Honor. 5 6 Willful retention, the definition of THE COURT: The next one, all right. retention, all right. 7 Instruction Willful MR. POLLACK: And what is the problem with that? Okay. The first sentence in this, 8 well, I guess it's the entirety of the second paragraph, it's 9 the same issue we just dealt with. 10 There's already a separate instruction on classification. 11 12 It's about classification. THE COURT: All right, so that whole paragraph should come out. 13 MR. POLLACK: 14 THE COURT: 15 MR. POLLACK: Agreed, Your Honor. Second paragraph. And then in the third paragraph, the -- 16 nothing -- no objection to the first sentence, which is 17 repeating what's already been instructed, but I do object to 18 the last portion, the "Unlike." 19 government does not have to prove as opposed to simply 20 instructing what they do have to prove for this count, there's 21 no need to do a compare and contrast of the different counts. 22 The jury will have the instruction for each count. 23 24 25 Again, highlighting what the So I, I would ask Your Honor to just strike everything from "Unlike the intent element" forward. THE COURT: I think this is necessary to distinguish Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 214 of 259 PageID# 6087 1370 1 this count from the other ones because there are differences, 2 and without this, it doesn't distinguish it. 3 MR. POLLACK: If the -- understanding the Court's 4 ruling in that regard, then I would suggest where you say, 5 "Unlike . . . for Counts 1, 2, and 4 through 7, the government 6 does not have to prove," I would insert "for purposes of Count 7 3, that the defendant," etc., so that it's clear that this 8 instruction only pertains to Count 3. 9 10 THE COURT: doesn't object to that? 11 MR. OLSHAN: 12 THE COURT: 13 All right, I assume the government one. No, Your Honor. All right, that will be added to that All right. 14 All right, the ones about mail fraud come out. 15 we're moving on to the objection to property, instruction 16 No. 19? 17 18 MR. POLLACK: That still relates to the mail fraud, THE COURT: That's right; that's out. Then false pretenses, that's out, too, right? 21 MR. POLLACK: 22 THE COURT: 23 has been defined. 24 out. 25 Hold on a second. Your Honor. 19 20 I don't have my index here. So Correct. Okay. And material is out. "Knowingly" has been defined. MR. POLLACK: "Willfully" Mailing is 27, I think, Your Honor, is the next Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 215 of 259 PageID# 6088 1371 1 one that we need to deal with. 2 THE COURT: 27? What, the nature of the offense 3 charged? 4 unless you're maintaining the government's mischaracterized the 5 offense, and I don't think they have. 6 No, I've already ruled that I'm going to allow that All right, thing of value was, I think, you're 7 objecting to thing of value, is that right, your objection on 8 31? 9 MR. POLLACK: Yes, Your Honor. It seems like this 10 instruction almost directs a verdict on this element when you 11 say, "Classified information is a thing of value to the United 12 States." 13 THE COURT: I think that sentence should come out. 14 thing of value can be anything, including oral information or 15 intangible property, that has value. 16 17 18 19 MR. POLLACK: I understand. Thank you, Your Honor. THE COURT: All right? Unless I hear a strong yelp from the government, it's coming out. 20 (No response.) 21 THE COURT: 22 MR. OLSHAN: 23 Okay. A All right. All right, 33. Your Honor, 33 relates back to 25, which was originally in the wire fraud set of charges. 24 THE COURT: 25 MR. OLSHAN: You mean mail fraud? Excuse me, mail fraud. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 216 of 259 PageID# 6089 1372 1 THE COURT: 2 MR. OLSHAN: All right, hold on. So our position would be that the full 3 knowingly instruction would need to be moved back to this 4 count. 5 THE COURT: I'm just going to give the standard 6 instruction for knowingly, all right? 7 a problem. So that one shouldn't be 8 Okay. 33, 34, 35. 9 Okay. 36, the essential elements of the offense for 10 obstruction of justice, the defense says that this is 11 incomplete. 12 MR. POLLACK: 13 THE COURT: 14 MR. POLLACK: Your Honor, before we get to that? Yeah. 34, I understand the Court's ruling 15 that it is going to give a nature of the offense instruction, 16 but in 34, the sentence in the middle that begins with, "The 17 defendant deleted this e-mail," I think should read, "The 18 defendant is alleged to have deleted this e-mail." 19 THE COURT: 20 MR. OLSHAN: 21 a CNN article," not "Newsweek." 22 THE COURT: 23 be CNN. Yes. Your Honor, it should also say "that had I'm sorry, not Newsweek. Yes, it should And it attached as -- 24 MR. POLLACK: 25 THE COURT: Had a link to a CNN article. That linked to -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 217 of 259 PageID# 6090 1373 1 MR. OLSHAN: 2 THE COURT: 3 All right, with those two corrections then, there is 4 no objection, correct, to the form of the instruction; is that 5 right? 6 7 -- a CNN article about the Iranian, okay. MR. POLLACK: Other than the objection we've already made to giving a nature of the offense instruction. 8 9 Thank you. THE COURT: care of 34. 10 Correct. Okay. All right. So that took There was no objection to 35. 36, all right, you're objecting to the elements. All 11 right, and what is the, what is the objection here? 12 say "four essential elements," and you list three, so there's a 13 mistake in the instruction. 14 15 MR. MAC MAHON: THE COURT: 17 MR. MAC MAHON: THE COURT: 25 The government took this, did you not, MR. MAC MAHON: It doesn't appear to be, Your Honor. It may have but -- 23 24 There's a form instruction that has directly from a form instruction? 21 22 So it should be three essential elements. this charge, I know for sure. 19 20 That was the basis for the objection, Your Honor. 16 18 It does MR. POLLACK: The citation is to case law, not to any form book. THE COURT: Well, I'll check the form book. If it's, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 218 of 259 PageID# 6091 1374 1 if it's there, that's what I'm going to use. 2 take a look at that one. 3 There was no objection to 37. 4 MR. POLLACK: All right, we'll 38 -- Actually, Your Honor, with respect to 5 37, again, the government gives no citation whatsoever for 6 where this is coming from. 7 form instruction for an official proceeding that would go along 8 with the form instruction for obstruction. 9 THE COURT: I would have to assume there's a Boy, that's tough. Well, if not, I could almost take 10 judicial notice a grand jury investigation is an official 11 proceeding. 12 tell the jury that? 13 So do you want me to just take official notice and MR. POLLACK: No, Your Honor. I don't think the 14 Court can direct a verdict of guilt on an element of the 15 offense. 16 what ought to be given. 17 I think there is a standard instruction, and that's THE COURT: Well, but even if there isn't a standard 18 instruction, I'm not uncomfortable telling the jury that a 19 grand jury proceeding would be an official proceeding. 20 look to see if there is an instruction just to put your minds 21 at ease. 22 MR. POLLACK: I will If the Court is inclined to do that, 23 then I will ask the Court to say that the jury may find that a 24 grand jury -- the Court cannot instruct the jury -- 25 THE COURT: I will look and see. Some of these Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 219 of 259 PageID# 6092 1375 1 instructions say, you know, official proceedings include such 2 matters as blah, blah, blah, blah, all right? 3 at that one. 4 MR. POLLACK: 5 THE COURT: I'll take a look Thank you, Your Honor. All right. And 38 you also objected to, 6 and again, you just want a form instruction. 7 didn't give me the form instruction, so these are not really 8 appropriate -- 9 MR. POLLACK: Of course, you Well, this one, Your Honor, again, 10 there's a sentence at the end about what the government does 11 not have to prove that I don't believe is part of the form 12 instruction. 13 instruction, and they cite a number of cases, but again, the 14 first part of the instruction properly instructs the jury what 15 it does have to find. 16 have to find. 17 I haven't been able to look, but they cite a form THE COURT: The latter sentence says what they don't Well, you know, some standard 18 instructions do have they don't have to prove certain things. 19 If you look at the conspiracy statute, there are a whole lot of 20 things that say the government doesn't have to prove that the 21 conspiracy was successful or that the defendant knew about it 22 at the beginning. 23 improper. So it doesn't necessarily mean that this is 24 Mr. Olshan? 25 MR. OLSHAN: That's exactly the point I was going to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 220 of 259 PageID# 6093 1376 1 make, Your Honor. 2 that proposition is not controversial that the act of 3 obstruction is not needed to actually obstruct. 4 Many form instructions say exactly that, and THE COURT: I'm sure that's a correct statement of 5 the law. 6 worded differently, I'll change it. 7 just the way it is, all right? 8 9 I'll just look at the form book. Otherwise, it may go in All right, you didn't like the causation instruction, which is 39, and what specifically don't you like about the 10 causation instruction? 11 instruction. 12 If it's slightly And this is your Section 2(b) MR. MAC MAHON: Your Honor, again, I think there's a 13 form on causation here, and I just think when you get to the 14 end of this, again, more than half of the instruction is on 15 what they don't need to prove. 16 THE COURT: 17 MR. MAC MAHON: All right, I will -And that's a term that we use to 18 instruct juries all the time: 19 crime of unauthorized disclosure. 20 THE COURT: 21 MR. MAC MAHON: does not need to perform the All right, I'll look at it. I mean, I don't know why you would 22 tell the jury that. The whole government's case is that that's 23 what he did, that he was present, that he was aware. 24 these are things that are reducing really the thought of what, 25 the willfulness also that needs to be proven. I mean, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 221 of 259 PageID# 6094 1377 1 THE COURT: Well, this reads like a model 2 instruction. 3 but you've got here, ". . . a general suspicion that an 4 unlawful act may occur or that something criminal is happening 5 is not enough. 6 of national defense information is being committed without more 7 is also not sufficient to establish causing an act to be done 8 through another." 9 10 11 Again, I didn't compare these to the form book, Mere knowledge that the unauthorized disclosure So I think this reads pretty close to what that would properly be. I'll take another look at it. MR. MAC MAHON: And again, we would also ask that you 12 drop the Section 2. 13 in terms of what's being argued to the jury. 14 THE COURT: Acts of another really aren't appropriate Well, no, because they're saying that 15 within 793, there is cause to -- one causes it to happen. 16 Well, you cause something to happen usually because somebody 17 else or another actor has done it. 18 do it yourself. 19 usually another player. If you did it yourself, you If you cause it to happen, then there's 20 I'll take, I'll take a look at the instruction. 21 MR. MAC MAHON: Just for the record, I think that 22 means if you go get somebody else, find somebody to hand the 23 information, you take it and get it out of the -- however it 24 would be done. 25 fashion here where we have a newspaper reporter or a book. It doesn't -- it's not meant to be used in the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 222 of 259 PageID# 6095 1378 1 It's having a coconspirator inside the circle is the way I read 2 the statute. 3 THE COURT: Well, if Mr. Risen were not protected by 4 the newsman's privilege, I suspect he'd have been named as a 5 coconspirator. 6 the information went out to the general public. 7 I mean, he is the, he is the vehicle by which MR. MAC MAHON: 8 Honor. 9 for that. 10 That's been established. THE COURT: 11 authority for that. 12 right. 13 And there is no privilege, Your I'd cite to this case as well Well, you're talking to the wrong I'm on record for a different reason, all Anyway -MR. OLSHAN: Your Honor, just to be clear, the theory 14 is that Mr. Sterling caused Mr. Risen to communicate this 15 information to the world. 16 caused a document to be taken out of -- That's the causation, not somebody 17 THE COURT: 18 that's your theory of the case. 19 think that instruction is probably correct, but I will 20 double-check it. 21 No, I understand that. I understand And as I said, I think, I All right, Instruction 40 was also objected to, and 22 that was the definition of "classified information." 23 the objection? 24 25 MR. MAC MAHON: What's Well, first of all, the jury has heard about two days' worth of the definition of "classified Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 223 of 259 PageID# 6096 1379 1 information," but there isn't an element in any, any of the 2 charges in this case at all dealing with classified 3 information. 4 Your Honor, but instructing the jury on classified information 5 would confuse them as they look to see what's national defense 6 information because, of course, one could be national defense 7 information, not be classified, and then be classified and not 8 be the adverse, and the opposite would be true either way. 9 We've asked for an instruction, lesser included, So I think it bolsters the government's case to 10 highlight to the jury any more than they already have what is 11 or isn't classified. 12 THE COURT: Well, I think where this ought to be used 13 is along with the elements for those offenses, not here at the 14 very end, and it seems to me that the jury should know that 15 classified information is not equivalent to national defense 16 information, although I'm not sure actually that's a correct 17 statement of the law, either. 18 MR. MAC MAHON: 19 MR. OLSHAN: I think it is, Your Honor. It's correct that just by virtue of 20 being classified, it does not necessarily satisfy the NDI 21 standard, but it's certainly something the jury can consider in 22 determining whether the NDI standard has been met. 23 THE COURT: Well, the NDI standard is what degree of 24 harm, because even at the Confidential level, the definition 25 that's in the record in this case is that it could cause harm, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 224 of 259 PageID# 6097 1380 1 correct? 2 MR. OLSHAN: 3 THE COURT: 4 MR. OLSHAN: Correct. All right. I believe that the language for the 5 definition of NDI is just injury to the United States. 6 think it uses the same phrases that appear in the definitions 7 of the classification levels. 8 THE COURT: 9 MR. OLSHAN: 10 THE COURT: But is harm any different from injury? In my mind, no. In the law, is there a distinction 11 between harm and injury? 12 MR. MAC MAHON: 13 I don't There is potential anyway, Your Honor. 14 MR. TRUMP: Your Honor? 15 THE COURT: Yeah. 16 MR. TRUMP: In the case law, it's primarily been 17 18 19 20 discussed in the context of closely held and -THE COURT: Well, closely held may be different than classified. MR. TRUMP: No, what I mean, Judge, is courts have 21 said that juries can consider the fact that a document or 22 information is classified in deciding whether the government 23 has met its burden to show that it's NDI, and it's primarily to 24 the point of closely held that that is a factor the jury can 25 consider as to whether information has been closely held is the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 225 of 259 PageID# 6098 1381 1 fact that it has been classified, it was under strict controls, 2 etc., etc. 3 level of classification, the compartmentalized nature of the 4 information. 5 That's why we put on all the evidence as to the But the jury can be -- can consider the fact that 6 it's classified in determining whether the government has met 7 its burden to prove that it's NDI. 8 9 THE COURT: All right. Well, there's a typo in here anyway, but I think again, there's nothing inaccurate about how 10 this instruction is written. 11 of the law, and I don't think that it's misleading the jury, so 12 I'm going to overrule that objection. 13 than "fact," so I need to change that. 14 It's not giving a false statement instruction about the chapter 9. 16 MR. OLSHAN: 17 throughout the trial. 18 on this topic is necessary. 20 21 Okay. Now, Instruction 41, you've objected to the 15 19 You have "fat" rather THE COURT: Your Honor, this has been an issue We do believe an appropriate instruction Well, let me hear from you, Mr. MacMahon or Mr. Pollack, on that one. MR. MAC MAHON: Your Honor, I think this instruction 22 is improper. They've put this whole chapter in evidence and 23 suggested that Classified Program No. 1 and Human Asset No. 1 24 are the national defense information that we're dealing with, 25 but what they're not -- that has to be true, the jury has to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 226 of 259 PageID# 6099 1382 1 find that that's actually proved to be national defense 2 information. 3 You know, we've heard a lot of stuff from many 4 witnesses about how inaccurate the book is in and of itself, 5 but for them to tell the jury that Mr. Risen writes about other 6 purported intelligence -- they haven't heard anything about 7 those other operations other than the two that we were allowed 8 to talk about, which was the one from 2004 and that the NSA 9 part is wrong. 10 11 They heard -- they didn't hear about anything else. But for the government to come in and say that 12 nothing in this book is true, that -- the government hasn't 13 confirmed the existence of these operations nor the truth of 14 what Mr. Risen says about this other operation, nor are they 15 required to do so, that puts a patina again of national defense 16 over this case, where really the confirmation of this book came 17 from the trial as what has really happened, but the jury 18 shouldn't be told anything else about these other parts of it 19 because it's just going to make it -- 20 THE COURT: Well, what -- 21 MR. MAC MAHON: 22 THE COURT: -- look like there's more. All right, what about -- the first 23 sentence you have no problem with, telling them they can read 24 the whole chapter if they want. 25 MR. MAC MAHON: No. In fact, I'd expect that's the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 227 of 259 PageID# 6100 1383 1 first thing they're going to do. 2 THE COURT: All right. 3 MR. MAC MAHON: I don't think the rest of it's even 4 necessary. 5 their first -- I'm not sure why they need to be told they can 6 read the book. 7 It's, again, unduly suggestive. They can have They can read any exhibit they want. THE COURT: I think you're right. 8 there's any need for this instruction at all. 9 to the jury. 10 They've got the book. I don't think It's just going They can do what they want with it. 11 MR. TRUMP: But -- 12 THE COURT: Wait. That also means, though, that I 13 don't expect there to be argument about chapter 9 in that -- in 14 this respect. 15 about -- especially I think this is more likely to come from 16 the defense than from the government: 17 about other portions of chapter 9, then you open the door for 18 the Court instructing the jury as to how they have to approach 19 chapter 9. 20 In other words, if, if you start arguing MR. MAC MAHON: If you start arguing Other than the two instances I just 21 discussed, Your Honor, which is the 2004, which we cleared with 22 you ahead of time, and then the NSA language on page 212, I 23 believe, those are -- they've asked witnesses about that as the 24 case has gone on. 25 THE COURT: Mr. Trump? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 228 of 259 PageID# 6101 1384 1 2 MR. MAC MAHON: Other than that, Mr. Pollack is doing the closing, so I should defer to him on this, Your Honor. 3 THE COURT: Mr. Trump? 4 MR. TRUMP: Your Honor, it goes back to the way the 5 case has been charged. 6 to Classified Program No. 1 and Merlin, Human Asset No. 1. 7 That is the only burden the government has with respect to 8 chapter 9. 9 The case has been charged with respect The jury's going to immediately see that there is 10 roughly 40-50 percent of that chapter that has nothing to do 11 with Classified Program 1 and Human Asset No. 1, and they're 12 going to be confused because there was no testimony about it, 13 there was no evidence about it. 14 assume, incorrectly, that the way the case has been charged is 15 that everything in chapter 9 has come from this defendant to 16 Risen to the book, and that would be an incorrect assumption 17 for them to make. 18 Yet it's there, and they may They should be told that consistent with the first 19 sentence, "The government has alleged that chapter 9 contains 20 national defense information," that is a correct statement. 21 It's also correct that Mr. Risen writes about other matters -- 22 I don't, I don't really care what phrase is used -- but writes 23 about other United States intelligence operations against Iran 24 in chapter 9. 25 That is a true statement, but those matters are not Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 229 of 259 PageID# 6102 1385 1 at issue in this case, and the jury should be told as much, 2 because if they sit back there and read chapter 9, they're 3 going to wonder, What do we do with all this other stuff, and 4 why haven't we heard any evidence about it? 5 THE COURT: All right. 6 MR. TRUMP: If you -- if the Court wishes to stop at 7 the end of "you should not consider them in any way during your 8 deliberations," that's fine, but -- 9 THE COURT: I think maybe what we should say in the 10 second sentence is, "This case focuses solely on the -- this 11 case focuses solely on those parts of chapter 9 that deal with 12 Classified Program No. 1 and Human Asset No. 1." 13 14 15 16 MR. MAC MAHON: have these other two issues. THE COURT: But I said "focuses." MR. MAC MAHON: 18 THE COURT: 19 MR. MAC MAHON: 21 Now, if you raise these other issues as two side issues, that's -- 17 20 But, Your Honor, if I may, we still They go to source, Your Honor. I'm sorry? I'll defer -- Mr. Pollack is doing the closing so -THE COURT: The law is it doesn't make any difference 22 if Risen had ten sources. 23 Mr. Sterling and the information that he revealed was 24 classified, then he's guilty, all right? 25 If one of those sources was So the fact that there are other sources of other Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 230 of 259 PageID# 6103 1386 1 information in the book is really irrelevant. 2 herring. 3 for the information that's at issue in this case, and the fact 4 that there might have been a source about X project or Y 5 project is irrelevant to this case. The question is are there other reasonable sources 6 MR. POLLACK: 7 THE COURT: 8 9 10 11 12 13 14 That's a red Your Honor, I think -- I don't think -Mr. Pollack, let me stop you for a second -MR. POLLACK: THE COURT: Yes. -- because you've got clear evidence in this case that Risen has said he had multiple sources. You've got that in the preface, and you've had it in other pieces of evidence here. MR. POLLACK: I understand, Your Honor. I don't 15 think there, I don't think there really is as much of an issue 16 here as the Court may be concerned. 17 information that's, that's -- that Risen writes about, 18 irrespective of whether or not it's accurate, that relates to 19 Classified Program No. 1, so that's not even an issue. 20 With respect to the NSA The only thing that doesn't relate to Classified 21 Program No. 1 that I plan to mention in argument is what has 22 already been said in the trial, which is that there is a 23 discussion of something that supposedly happened in 2004, and 24 to the extent that Mr. Risen had sources for that information, 25 certainly it wasn't Mr. Sterling, and the jury can infer from Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 231 of 259 PageID# 6104 1387 1 that that it is less likely therefore that Sterling was a 2 source for the Classified Program No. 1 information. 3 words, if Risen had a source that could tell him about both, he 4 could have gotten it from, from that source, and therefore, 5 it's less likely that he got the Classified Program No. 1 stuff 6 from Sterling. 7 In other So I fully understand that the fact that there are 8 multiple sources is not in and of itself a defense, and the 9 fact that other people might have committed crimes is never a 10 defense, but it goes to whether, the likelihood that 11 Mr. Sterling committed the charged offense, the fact that Risen 12 has sources that are not Sterling. 13 But it's just with respect to those first two cases 14 that have already been discussed with a couple witnesses now, 15 and I wouldn't do it in an argument any differently or any more 16 expansively than what's already been done. 17 THE COURT: All right, I'm not going to give an 18 instruction on the book. That whole exhibit is in. 19 argue it. 20 the jury's attention on what they have to pay attention to and 21 shouldn't, but I'm not going to do this. 22 Okay. It's perfectly proper for both sides to argue, focus So that one's out. Instruction -- that was 41, I think, yeah. 23 42 is multiple sources. 24 MR. POLLACK: 25 You can And on this, Your Honor, this goes back to the point that we were just discussing. There is a standard Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 232 of 259 PageID# 6105 1388 1 instruction or at least a common instruction that is given that 2 evidence that somebody else might have committed a crime isn't 3 a defense and that you have to decide whether or not the 4 defendant committed the crime charged. 5 We have no objection to that kind of instruction 6 here, but this, this instruction as written, I think, is far 7 beyond what needs to be said on that topic and really is 8 suggestive that if you find that Mr. Sterling provided 9 anything, you have to find him guilty, and the jury does have 10 to find that there is national defense information, that they 11 can find beyond a reasonable doubt that that particular 12 national defense information came from Mr. Sterling, and I 13 think this instruction just goes too far in suggesting 14 otherwise. 15 So I would suggest replacing this with the 16 instruction -- an instruction that says that the fact that 17 other people might have provided him national defense 18 information is not relevant to your consideration. 19 a defense. 20 him national defense information and has the government proven 21 that beyond a reasonable doubt or not. 22 That's not What you need to decide is did Mr. Sterling provide THE COURT: Well, what if we take this portion out? 23 This portion does seem to be a correct statement of the law 24 without any problems: 25 through 7, the government must prove beyond a reasonable doubt "For each of . . . Counts 1, 2, and 4 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 233 of 259 PageID# 6106 1389 1 each and every element of these offenses as I have explained 2 them to you. 3 that the defendant was the only person who communicated the 4 national defense information alleged in the indictment to James 5 Risen." 6 The government, however, does not have to prove And then jump down to, "Your duty as jurors is 7 limited to determining whether the government has proved beyond 8 a reasonable doubt that the defendant committed the offenses 9 charged, irrespective of whether other persons may have 10 communicated the same or similar information to James Risen." 11 That's, I think, a fair statement of the law. 12 MR. OLSHAN: That's fine for us, Your Honor. My only 13 suggestion would be in that portion the Court read, that second 14 sentence that starts, "The government, however" -- 15 THE COURT: 16 MR. OLSHAN: 17 18 Yeah? -- it should probably end with "indictment." So it's "the only person who communicated the 19 national defense information alleged in the indictment," but 20 it's not just to James Risen in some of the counts. 21 counts are to the public at large. 22 Other So rather than just focusing in on Risen, just leave 23 it as "the national defense information alleged in the 24 indictment," period. 25 THE COURT: That's really getting subtle because, I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 234 of 259 PageID# 6107 1390 1 mean, every single disclosure was through the vehicle of 2 Risen's writing. 3 MR. OLSHAN: That is correct, but the way the case is 4 charged, the communication that matters for Counts 1 and 2 and 5 6 and 7 is communication or attempted communication to the 6 public. 7 at, "The government, however, does not have to prove that the 8 defendant was the only person who communicated the national 9 defense information alleged in the indictment." 10 So we would ask that the instruction, just leave it THE COURT: All right. All right, Mr. Pollack, with 11 those edits, are you comfortable then with the multiple 12 sources? 13 14 15 16 17 18 MR. POLLACK: Honor. I think we're getting close, Your I would -THE COURT: So we're not going to use the first paragraph at all, I don't think. Let's see. Yeah, because the first paragraph repeats what we've already said in the description of the offenses. 19 MR. OLSHAN: 20 THE COURT: That's fine. All right, so that's coming out entirely, 21 and so we would start again, the first sentence and the second 22 sentence, with the words "to James Risen" omitted, right? 23 first two sentences of paragraph 2. 24 25 MR. POLLACK: Stop there, Your Honor. The The only change I would say there is to change the word "communicated" Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 235 of 259 PageID# 6108 1391 1 to "disclosed." 2 MR. OLSHAN: 3 THE COURT: 4 MR. OLSHAN: I believe the statute has both words. Does it use both? "Willfully communicates, delivers, 5 transmits, or causes to communicate, be communicated, 6 delivered, or transmitted." 7 communicated. 8 9 THE COURT: So it's not disclosed; it's I'm going to leave "communicated" then if that's what the language is. 10 All right, so we'll leave that in. We're going to 11 get rid of the example and then go to the last sentence: 12 duty as jurors is to determine whether the government. 13 14 MR. POLLACK: Your And that last sentence, Your Honor, I would end with "the offenses charge." 15 THE COURT: "Whether the government has proved beyond 16 a reasonable doubt that the defendant committed the offenses 17 charged." 18 other persons may have communicated the same or similar 19 information." 20 No, that has to be there. MR. POLLACK: "Irrespective of whether Well, you've already said, you've 21 already said, Your Honor, the government does not have to prove 22 that the defendant was the only person who disclosed the 23 national defense information alleged in the indictment, so I 24 don't think you need to repeat that again in that latter 25 clause. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 236 of 259 PageID# 6109 1392 1 THE COURT: Well, I think it, I think it clarifies 2 it, so I'm going to go ahead and do it that way, all right? 3 Okay. 4 done. 5 So that takes care of multiple sources. We're almost 43, well, motive was a significant issue in this 6 case, and it's not an element, but I think it's been discussed 7 enough that unless it's a mis-definition of motive -- let me 8 take a look here. 9 I mean, there's been the, been the nuance here of 10 whistleblowing. I mean, that's certainly also floated in the 11 case from the defense standpoint, and the government has 12 discussed motive extensively. 13 think this is an incorrect definition of "motive." 14 what the objection is. 15 Mr. Pollack? 16 MR. POLLACK: 17 THE COURT: 18 MR. POLLACK: Unless this is -- and I don't I don't see May I have a moment, Your Honor? Yes, sir. Your Honor, in the second paragraph, 19 certainly if the Court's inclined to give the instruction, in 20 the last sentence, where it says "may aid you in determining 21 that defendant's intent," I would add "or lack of intent," and 22 the last paragraph, which, I guess, is all one sentence, I 23 would strike the first part and just say the latter part, which 24 is that the presence or absence of motive is a circumstance you 25 may consider as bearing on the intent or lack of intent of a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 237 of 259 PageID# 6110 1393 1 defendant. 2 And it seems, I mean, it seems repetitive. 3 probably just strike the last sentence of that second paragraph 4 in its entirety and just give that latter clause of the third 5 paragraph. 6 7 8 9 THE COURT: You could All right, what's the government's view of that? MR. OLSHAN: Your Honor, we believe that this is appropriate as written. Mr. Pollack's suggestion as for that 10 last sentence in paragraph 2, "The motive of a defendant is 11 irrelevant except insofar as motive may aid you in determining 12 that defendant's intent or lack of intent," suggests to the 13 jury that if you find he had some kind of good motive, then 14 that negates intent, but that's not what this instruction is. 15 MR. POLLACK: I don't think it suggests that at all. 16 In fact, you're going to say explicitly to the contrary if you 17 give this instruction. 18 have it both ways. 19 buy the government's motive evidence, that they can consider 20 that in forming the view that the defendant did have the 21 intent, then equally if they don't buy the government's motive 22 evidence, they can consider that in finding that the government 23 hasn't proved intent. 24 25 My, my point is the government can't If they want the jury to know that if they THE COURT: All right, I'm going to -- I know that motive is a standard instruction. I'm just going to look at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 238 of 259 PageID# 6111 1394 1 the books and see what they have, all right? 2 use what they have in the book. 3 Okay. And I'm going to Those were the specific instructions that you 4 had objections to. As to 44, witness protective measures and 5 substitutions, redactions, you said they were already given, 6 they probably -- they do need to be given again, so let me tell 7 you, I have looked at those, and I'm going to give them -- 8 again, I'm going to get you a set, you probably won't get them 9 for another hour or so, of the proposed charge, so you'll have 10 the whole thing, but just so you know, I am going to tell the 11 jury that the number of witnesses and the amount of evidence 12 submitted is not, you know, a deciding factor, so that's a 13 pretty standard instruction. 14 Here's what I wrote on witness protection measures. 15 "During this trial, you heard testimony from witnesses who are 16 currently employed by the CIA. 17 former employees of the CIA, some of whom continue to work for 18 the CIA as contractors, and you have heard the testimony of 19 Human Asset No. 1 by video deposition and that of his wife. 20 These witnesses testified either by using only initials or 21 using a made-up name such as Merlin, and you were not told 22 their true names. 23 preventing the general public from seeing them. 24 25 You also heard testimony from These witnesses also testified with a screen The disclosure of the witness's names and their physical identity could potentially compromise either their Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 239 of 259 PageID# 6112 1395 1 2 continued work for the CIA or expose them to safety issues. As I explained to you, one of your roles as jurors 3 will be to assess the credibility of each witness who has 4 testified during the trial. 5 about the credibility of those witnesses simply because they do 6 not -- you do not know their full names or because they 7 testified with the screen. 8 the manner in which such witnesses testify as an expression of 9 my opinion as to any of the facts of this case. 10 11 12 You should not make any judgments Moreover, you should not consider It is your job and yours alone to decide the facts of this case." So I think that takes care of the protective measures issue, and I'm assuming there's no objection to that. 13 (No response.) 14 THE COURT: Okay. No objection was heard. 15 I'm going to give the standard instruction on the 16 effect of the defendant's failure to testify, and I think that 17 heading is probably -- that's the standard heading, but I think 18 I just will say "not testifying" rather than "failure to 19 testify," unless you don't care. 20 MR. MAC MAHON: 21 THE COURT: What's that, Your Honor? I'm sorry. Yeah, the heading for this instruction, 22 which is right out of the book, is "failure to testify," and I 23 think I'll just say "effect of the defendant not testifying" -- 24 MR. MAC MAHON: 25 THE COURT: That's fine, thank you. -- is probably more benign. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 240 of 259 PageID# 6113 1396 1 2 Every time I do these instructions, I find something else I don't like about them. 3 Okay. There were two proposed defendant's jury 4 instructions, and I'm not sure what you mean, what you intended 5 by this, so what -- the first one is -- you don't have numbers 6 on them. 7 to give. 8 9 10 "Your verdict must be based on the facts as you find them and on the law contained in all of these instructions." I'm certainly giving that. 11 12 And then you have two questions -- or two statements. What was the point of these instructions? 13 14 There were two instructions that you asked the Court MR. MAC MAHON: you're looking at. 15 THE COURT: 16 MR. MAC MAHON: 17 Your Honor, I'm not exactly sure what All right. We did propose an instruction on the lesser-included offense, if that's what you're looking at. 18 THE COURT: Well, where did -- how did you do that? 19 I don't remember ever seeing that. 20 MR. MAC MAHON: 21 22 They were filed by ECF a couple days ago. THE COURT: Well, what I have is, "Whether an 23 employee of the United States, who by virtue of his employment 24 or position came to possess documents," I mean, blah, blah, 25 blah, this made no context. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 241 of 259 PageID# 6114 1397 1 2 MR. MAC MAHON: We'll withdraw that, Your Honor, because I don't even know what you're looking at. 3 THE COURT: Here, I'll show it. 4 Show them this. 5 MR. MAC MAHON: Yes, Your Honor. These are the -- 6 these were the jury instructions that were -- they weren't 7 submitted. 8 THE COURT: They were not submitted? 9 MR. MAC MAHON: They were submitted, Your Honor, but 10 not in the exact form that I understood, and what these were 11 were the potential jury instructions on a lesser-included 12 offense that we would ask the Court to consider. 13 14 THE COURT: Oh, oh, oh. here. 15 All right, so this is the only proposed substantive 16 instruction then from the defense. 17 MR. MAC MAHON: 18 Well, you have No. 2. Well, we have the instruction on venue that the Court has already rejected. 19 20 All right, hand that back up THE COURT: All right. What is the government's view about a lesser included? 21 MR. TRUMP: I really am at a loss. 22 THE COURT: Well, it's not a lesser included. I 23 mean, a lesser included would be still another offense within 24 it. 25 MR. TRUMP: A lesser-included offense has to marry up Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 242 of 259 PageID# 6115 1398 1 in terms of the elements of the larger offense. 2 lesser included, as far as I know, to any of the offenses that 3 we have charged. 4 THE COURT: There's no No, this can't be a lesser-included 5 offense. 6 information is not national defense information, simply because 7 it's embarrassing to one or another public official, you have 8 to acquit. 9 This is an acquittal. This is saying if the I mean, you're taking this from -MR. MAC MAHON: That's a different instruction, Your 10 Honor; I'm sorry. The other instruction we gave was the 11 statute that deals with possession or disclosure of classified 12 information. 13 THE COURT: Well -- 14 MR. MAC MAHON: The jury could find that there was 15 classified information that was disclosed or possessed, and 16 that's a separate charge altogether. 17 THE COURT: Well, I'm confused. I thought we had -- 18 I had my staff, I thought, download everything you submitted. 19 I must have missed one, so somebody needs to give me what 20 you've got. 21 Does the government have it? 22 MR. TRUMP: I don't think we have it. 23 THE COURT: I don't think we got a lesser included. 24 25 Are you sure you filed one? MR. MAC MAHON: I thought we had, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 243 of 259 PageID# 6116 1399 1 Mr. Holt was supposed to file it. 2 under the bus. 3 THE COURT: 4 MR. MAC MAHON: I'm not trying to throw him Oh, okay. The lesser included would have been 5 the possession of classified information. It doesn't marry up 6 except for the national defense charges. The Court, I'm sure, 7 has had these cases here where just the simple possession of 8 the classified information. 9 information about why things are classified and what The jury has heard a lot of 10 Mr. Sterling possessed, and we just think that that should be a 11 charge that they can consider if they decided to do so. 12 THE COURT: But there's absolutely no dispute, I 13 mean, there's no evidence in this case to suggest that this is 14 not -- there really isn't -- any national defense information. 15 I mean, every witness who's testified for the government has 16 said that it is. 17 You haven't had any evidence, there's no evidence in 18 this case to my knowledge that undermines that part of this 19 case. 20 MR. MAC MAHON: 21 find it, Your Honor. 22 THE COURT: Well, the jury still doesn't have to No, the jury, the jury might not find it, 23 but you still don't give the jury an instruction when there's 24 no evidence. 25 basis for a lesser-included offense. There still has to be evidence to suggest the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 244 of 259 PageID# 6117 1400 1 2 Mr. Olshan? You have to be at the lectern. Mr. MacMahon gets a bye because of his back. 3 MR. OLSHAN: Even if there were some evidence that it 4 was not NDI, legally, the instruction they want is a completely 5 separate offense. 6 properly considered to somehow be a lesser-included offense. 7 I'm not aware of any case law that says it's So on both bases, we don't think any other 8 instruction would be appropriate. 9 The offenses that are charged are the 793 offenses, period. 10 THE COURT: All right. There's no other offense. Well, obviously, if the 11 defense feels strongly about this and they have a basis for it, 12 that's something you need to submit to us this evening, not 13 tomorrow morning at 9:30, but get it to us tonight so we can 14 take a careful look at it and see if it should be there, but 15 I've not seen the proposed lesser-included instruction. 16 MR. TRUMP: Judge, I've researched this in the 17 context of a completely different case, but it only pertains to 18 tangible information. 19 classified information, I believe, so it can't be a 20 lesser-included offense with respect to the majority of the 793 21 counts. 22 23 THE COURT: It would not pertain to intangible All right. Well, I don't even have it in front of me, and I don't know what the basis -- 24 MR. TRUMP: 25 classified material. The statute relates to the removal of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 245 of 259 PageID# 6118 1401 1 THE COURT: 2 MR. MAC MAHON: 3 THE COURT: Yeah. 4 MR. TRUMP: I have no idea, Your Honor. 5 THE COURT: It might have been. 6 And is that the misdemeanor? That was used in the Drake case? That case was resolved with a misdemeanor. 7 MR. MAC MAHON: 8 THE COURT: 9 Yes, Your Honor. It's 1924, Your Honor. All right. But does not appear to be in this case because that's -- this is different. 10 MR. TRUMP: Much different. 11 THE COURT: Yeah, yeah. 12 Well, anyway, at this point, I'm not giving it. All right. 13 are there any other instructions that either side wants the 14 Court to be considering? 15 MR. POLLACK: 16 MR. OLSHAN: 17 MR. POLLACK: 18 MR. OLSHAN: So Do you have something? I do have something. Go ahead. Your Honor, something that we hit on a 19 few minutes ago got me thinking about the sort of omnibus issue 20 for the instructions, which is that although the charges are 21 captioned in the indictment as unauthorized disclosure, the 22 actual charging language and statute is not disclosure; it's 23 communication; and so anywhere that the instructions reference 24 the means of dissemination, it should be the statutory 25 language, which is communication, not -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 246 of 259 PageID# 6119 1402 1 THE COURT: I'm letting you make those changes. 2 That's -- I mean, I'm not going to go through -- you have them 3 on your computer as well, right? 4 MR. OLSHAN: We do. So, for example, just making 5 sure that the capsule summary for the charges tracks the 6 statutory language and not the captioned language. 7 that. 8 9 We can do Related to that, Your Honor, if we could go back to instruction 39, which is the causation instruction? 10 THE COURT: Well, wait a minute. I think you are okay. I'm looking real 11 fast. 12 No. 2. 13 information to be communicated, delivered, and transmitted." You've got it there, "caused national defense 14 MR. OLSHAN: 15 THE COURT: 16 MR. OLSHAN: 17 THE COURT: 19 MR. OLSHAN: THE COURT: 22 MR. OLSHAN: We just want to make sure it's Okay. All right, go ahead. Instruction 39, which is the causation Yeah. The way that it's written, it says, "First, that another person committed the crime." 24 25 That's the correct language. instruction? 21 23 Correct. consistent. 18 20 I'm looking at your Instruction That's, that's not what it is. changed. That should be It's "that another person performed the acts Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 247 of 259 PageID# 6120 1403 1 constituting the crime," because the next sentence or two 2 sentences later says that intermediary does not have the 3 necessary intent. 4 So you cannot say that somebody else committed the 5 crime unless they also had the intent, and so my recommendation 6 for this, and we can submit this to the Court overnight, is 7 that where it says "First," this should be, "First, that 8 another person performed the acts constituting the crime of the 9 unauthorized communication of national defense information." 10 And then below, where it says, "The government need 11 not prove," it should be, "The government need not prove that 12 the person who performed the acts constituting the crime of the 13 unauthorized communication of national defense information did 14 so with criminal intent. 15 intermediary or pawn." 16 That person may be an innocent Similarly, the next sentence, "The defendant need not 17 perform the crime," well, obviously, the defendant has to 18 commit a crime in order to be convicted, and I would imagine 19 the defense doesn't like this language for that reason, and so 20 it can similarly be clarified to, "The defendant need not 21 perform the acts constituting -- the acts that constitute the 22 crime of the unauthorized disclosure of national defense 23 information." 24 25 THE COURT: You're getting -- you need to -- we all need to sit down and think about that one carefully. I don't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 248 of 259 PageID# 6121 1404 1 want these instructions so complicated that this jury can't 2 figure out what they're doing, all right? 3 really complicated, and there's got to be a simpler way of 4 doing that. 5 about it carefully. 6 That's getting So rather than trying to do this ad-libbed, think And again, now what's going to -- you need to get 7 these distributed as quickly as possible so I can get a 8 reasonable response from the defense if they have an objection 9 to it. And again, this has been a great jury. I don't want to 10 hold them up, and so I -- and I, again, I have a hearing at 11 nine o'clock, so we have basically a half-an-hour window to get 12 any last-minute things ironed out tomorrow morning, all right? 13 MR. OLSHAN: And just so the parties are clear, we 14 should get together on, I believe, the possession instruction; 15 is that correct? 16 THE COURT: See if you can work out a joint 17 instruction that you're happy with for possession. 18 to look at it as well, yeah. 19 20 MR. OLSHAN: And we'll also submit something on causation. 21 THE COURT: 22 MR. OLSHAN: 23 Court would circulate another -- 24 25 I'm going THE COURT: On causation. And I believe the Court suggested the I'm going to give you my proposed charge before I go home tonight, so you'll, you know, look -- check in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 249 of 259 PageID# 6122 1405 1 your e-mail, all right? 2 MR. OLSHAN: 3 THE COURT: Thank you. We're going to e-mail it to you rather 4 than putting -- I'm not putting it on ECF because it's a work 5 in progress. 6 them with my law clerk before you go, good e-mail addresses for 7 you, all right? 8 Therefore, make sure we have good e-mail, leave All right, is there anything else? 9 (No response.) 10 THE COURT: Now, the last thing is it's only five 11 o'clock. 12 courtroom that you've worked with Ms. Guyton and Ms. Gunning on 13 making sure that the physical exhibits that are going to go to 14 the jury are the ones you thought you had entered -- in fact, 15 we should do that right now. 16 you, but I want you physically to have looked at them so 17 there's no question about the integrity of what's going to go 18 to the jury, all right? 19 You've got to make sure before you leave the Just I'll have the list read to We're not giving them the transcript for Merlin; we 20 already agreed on that. And the cable books, we may get a -- 21 oh, juries always ask for an index. 22 before, so that's another job the government's got if you don't 23 already have it is an index of the exhibits that have been 24 entered into evidence, and we need one for the defense as well. 25 No editorial comments. I've had this happen Enough to explain what it is, and it Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 250 of 259 PageID# 6123 1406 1 may be very similar to the exhibit list you filed already. 2 Just make sure you don't list anything there that was not 3 entered into evidence. 4 That in a case like this will be one of the first 5 questions the jury asks. 6 you've done that, okay, so we have that ready for them tomorrow 7 morning. 8 9 So both sides need to make sure MR. MAC MAHON: Your Honor, they may also ask for multiple copies of the chapter as well. I don't know how the 10 Court wants to deal with that. 11 THE COURT: 12 make sure that there are 12 -- 13 MR. TRUMP: 14 With respect to that exhibit, 132 was the exhibit 15 We can have multiple copies. without paragraph markings. 16 17 I have no problem -- all right, we'll THE COURT: I think we should put the paragraph numbers in. 18 MR. TRUMP: And 132A is the one with the numbers. 19 THE COURT: All right. 20 MR. TRUMP: If you want to have them both, they can 21 have both. 22 someone -- 23 24 25 The numbers are very easy in terms of argument if THE COURT: I think it's easier for you-all if you're going to argue the case to do it to numbers, all right? MR. POLLACK: As long as we're talking about the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 251 of 259 PageID# 6124 1407 1 chapter in its entirety, I have no problem with there being a 2 version of numbered paragraphs. 3 THE COURT: 4 All right. And I'm almost positive I've mentioned it to the jury that the numbers would be added. 5 MR. TRUMP: It's 132A. 6 THE COURT: Yeah. 7 MR. TRUMP: It doesn't matter to me whether 132 and 8 9 10 132A go in, but 132A is the one with the paragraphs. THE COURT: Let's make the 12 copies -- your job is to make 12 copies of 12A (sic) if we don't already have that. 11 Now, what about the cable books? 12 MR. TRUMP: Well, they're all in the exhibit book. 13 All the cables are in the exhibit books. 14 cable books unless -- 15 THE COURT: They don't need their I don't think we should. I think the 16 practice has always been to have one set of exhibits, with the 17 exception being chapter 9 because that will take them, you 18 know, half an hour or so to read if they all want to sit down 19 and read it. 20 21 22 Okay? All right, so unless there's anything else, I'm going to have Ms. Guyton read -MR. POLLACK: Yes, Your Honor. I think it's clear 23 for the record, but just out of an abundance of caution, I want 24 to make sure that it is: 25 the charge, we're reserving our objections, and to the extent With respect to our back-and-forth on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 252 of 259 PageID# 6125 1408 1 that they lead to modifications, those are understanding the 2 Court's initial rulings -- 3 THE COURT: You've filed your objections. We've 4 denied some of them and granted some of them, and that's the 5 law of the case, and you can certainly, you know, appeal any 6 objections. 7 MR. POLLACK: 8 THE COURT: 9 10 I understand, Your Honor. All right. double-check your list? Thank you. So are you ready to All right, Ms. Guyton will now read it to you. 11 I think the easiest way of doing this in looking at 12 Ms. Guyton's notes is to tell you what's not in evidence, all 13 right? 14 So I'm going to have her just read the numbers of the 15 government's exhibits that did not go into evidence. 16 that's much faster and easier to do it that way, okay? Because the vast majority of these exhibits went in. 17 THE CLERK: Okay. 18 THE COURT: Yeah, Mr. Olshan? 19 MR. OLSHAN: 20 One brief thing. I think Your Honor, the issue of the summary e-mails that were behind each of those exhibits? 21 THE COURT: 22 MR. OLSHAN: Ah. So I didn't reference those when we were 23 dealing with those exhibits with Agent Hunt, and so we're fine 24 just to pull those out. 25 they are part of Exhibit 98, which is the fulsome summary that Frankly, they're now redundant because Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 253 of 259 PageID# 6126 1409 1 she did of the calls and e-mails. 2 from the official exhibits that are going to go back. 3 THE COURT: So we can pull those out I think they're extremely helpful for the 4 jury, and I don't think they're unfair. 5 inaccurate. 6 Because the jury has to look at that summary chart and decide 7 whether it's accurate, and those are the supporting materials 8 for it. 9 They're not I think we should leave them with them, all right? MR. OLSHAN: Certainly our position was they were 10 generated by Agent Hunt, and the parties can argue about the 11 sanctity of those summaries all we want, and so it's fine by, 12 it's fine by our standard -- or we're fine with leaving them 13 in. 14 about it. We just wanted the Court to know we were still thinking 15 THE COURT: All right. 16 MR. POLLACK: Your Honor, I would just like to note 17 an objection to that. 18 not moved them in through the computer expert. 19 in evidence, and then they did not attempt to move them in 20 through Agent Hunt. 21 THE COURT: The, the government agreed that they had They were not They're not in evidence. All right, to avoid any problems since 22 you do have it in the other document, they're out, all right? 23 So you need to make sure, though, physically when you go 24 through these books to make sure that what's going to the jury 25 is correct, that you have those removed, all right? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 254 of 259 PageID# 6127 1410 1 MR. OLSHAN: 2 THE COURT: 3 MR. OLSHAN: 5 THE COURT: 6 summaries like that. 7 Correct. -- and there are three or four separate MR. OLSHAN: That's right. There were four, four or so that had no content. 9 THE COURT: 10 11 Because there's that one exhibit where I think there are three or four different strings discussed -- 4 8 Very well. Yeah, right. Okay. All right, so here are the exhibits that were not entered into evidence. 12 THE CLERK: Government Exhibit Nos. 64, 67, 68, 69, 13 70, 71, 72, 76, 80, 82, 85, 88, 97, 104, 109. 14 132A, is that going to be admitted? 15 THE COURT: 16 (Government's Exhibit No. 132A was received in 17 132A is in. evidence.) 18 THE CLERK: 132B was offered but not admitted. 19 not admitted -- was not offered, I'm sorry; and 138 not 20 admitted. 147, 149, 150, 151 -- 21 MR. TRUMP: Wait up, please. 22 THE CLERK: I'm sorry. 23 MR. TRUMP: Can we go back to 147? 24 THE CLERK: Okay. 25 136, 147, 149, 150, 151, 152, 153, 154, 155, 156, 165, 166. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 255 of 259 PageID# 6128 1411 1 2 THE COURT: And there were so few defense exhibits, let's read the ones that are in evidence. 3 MR. OLSHAN: 166, I did move that one, Stipulation 4 No. 6, about the $1.5 million. 5 THE COURT: 6 MR. OLSHAN: 7 THE COURT: 8 MR. OLSHAN: 9 That, that was your stipulation? It was. I think that's right. Stipulation No. 5, which is Exhibit 165, we did not read in, but 166 we did. 10 THE COURT: 11 MR. MAC MAHON: 12 Hold on a second. 132C, was that on the list? I'm sorry. 13 THE COURT: 14 MR. MAC MAHON: 15 THE COURT: 16 (Government's Exhibit No. 166 was received in 17 No, 132C is not in. That's out. 132C is not in. 166 then is in. evidence.) 18 THE COURT: All right, are you satisfied then? 19 MR. TRUMP: We had 170, 171, and 172 -- 171 and -72 20 are in the record, but they don't go to the jury, correct? 21 THE COURT: Are those -- 22 MR. TRUMP: Merlin. 23 THE COURT: The video deposition is not going in as 24 25 an exhibit. MR. TRUMP: It's marked just for appellate purposes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 256 of 259 PageID# 6129 1412 1 THE COURT: Correct. 2 MR. TRUMP: And our list goes through 175, but there 3 is a 176, which is Stipulation No. -- 4 THE CLERK: 13. 5 MR. TRUMP: -- 13. 6 THE COURT: Right, that's in. 7 All right, the government's satisfied? All right? And again, 8 the last job will be to check physically on the exhibits, all 9 right? 10 11 But we'll now read the defense exhibits that were entered into evidence. 12 13 THE CLERK: No. 4, 5, 6, and 7. Defense Exhibit No. 1, No. 2, No. 3, 8 was not admitted. 14 THE COURT: Is that consistent with your records? 15 MR. MAC MAHON: 16 THE COURT: 17 Yes, Mr. Olshan? 18 MR. OLSHAN: Yes, Your Honor. Yes, all right. 19 document. 20 but just to make sure. 21 MR. POLLACK: I seem to recall 5 and 6 were the same Did they both actually go in? Not that it matters, Well, there was an underlying e-mail 22 chain, and then there was a second document that showed that 23 that e-mail chain was forwarded to Mr. Koch. 24 THE COURT: 25 MR. POLLACK: Right. So they're not identical documents. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 257 of 259 PageID# 6130 1413 1 MR. OLSHAN: But they're both in? 2 THE COURT: 3 All right, so unless there's anything else, so the Yes. All right? 4 government is going to redo the verdict form, taking out Count 5 8, all right? 6 them something about Count 8 not being there on the verdict 7 form. 8 that, all right? 9 verdict form, and they'll see the different count numbers, and And I will just tell the jury, I have to tell I'll just say Count 8 is being omitted or something like Because otherwise, they're going to read the 10 the jury is not stupid; they'll figure out something is 11 missing. 12 MR. FITZPATRICK: 13 them. 14 you're talking about? A will be Count 1, B will be Count 2, is that what 15 16 Your Honor, I was going to letter THE COURT: Look, I mean, the jury instructions are written by count number. 17 MR. FITZPATRICK: 18 MR. OLSHAN: 19 THE COURT: Oh. The Court could renumber them. Oh, we're not going to renumber all the 20 counts. 21 about -- they'll see instructions for Counts 1, 2, 3, 4, 5, 6, 22 7, 8 -- I'm sorry, 9, and 10, and we'll have a juror who will 23 say, "Where's Count 8?" 24 25 I mean, the jury will know that you're talking So I need to tell them that I've taken care of Count 8 one way or the other, not to worry about it, all right? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 258 of 259 PageID# 6131 1414 1 That doesn't tell them whether I've convicted or acquitted on 2 Count 8. 3 It's no longer for them to worry about. There's so much information in this case, I don't 4 even think Mr. Trump mentioned mail fraud. I may have said it 5 in the opening, but, I mean, this jury is not going to be 6 looking for a mail fraud claim in this case, so that's not 7 going to be a problem, all right? 8 But you're going to prepare the new verdict form. 9 MR. OLSHAN: 10 THE COURT: Yes. All right. And you're going to give me 11 whatever additional instructions, and again, if there's 12 something else that comes to mind, yeah. 13 MR. TRUMP: 14 consistent with the omissions. 15 THE COURT: Correct, a new index. 16 MR. TRUMP: Correct. 17 THE COURT: And defense is short, but yours as well, 18 19 We will prepare an exhibit list okay? All right, anything else? 20 21 22 23 (No response.) THE COURT: No? All right, then make sure you go through these exhibits with Ms. Gunning and Ms. Guyton. (Recess from 5:18 p.m., until 9:53 a.m., January 22, 2015.) 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 492 Filed 08/17/15 Page 259 of 259 PageID# 6132 1415 1 2 3 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 4 5 6 /s/ Anneliese J. Thomson 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595