2997 K333SCHF - REDACTED 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 UNITED STATES OF AMERICA, 4 v. 1 5 JOSHUA ADAM SCHULTE, 6 7 S2 17 Cr. 548 (PAC) Defendant. ------------------------------x New York, N.Y. March 3, 2020 10:00 a.m. 8 9 Trial Before: 10 HON. PAUL A. CROTTY, District Judge -and a juryAPPEARANCES 11 12 13 14 15 GEOFFREY S. BERMAN United States Attorney for the Southern District of New York BY: MATTHEW J. LAROCHE SIDHARDHA KAMARAJU DAVID W. DENTON JR. Assistant United States Attorneys 16 17 18 19 SABRINA P. SHROFF Attorney for Defendant -andDAVID E. PATTON Federal Defenders of New York, Inc. BY: EDWARD S. ZAS Assistant Federal Defender 20 21 22 23 Also Present: Colleen Geier Morgan Hurst, Paralegal Specialists Achal Fernando-Peiris, Paralegal John Lee, Litigation Support Daniel Hartenstine CISO, Department of Justice 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2998 K333SCHF Deliberations 1 (Trial resumed; a note was received from the jury) 2 THE COURT: We have a note from the jury, and we have 3 copies for you, and we'll show you the note in just a moment. 4 The note reads: 5 exhibits? 6 Thank you." 7 "Can we please have a summary list of the Especially the ones used during the arguments/trial. I'm giving the original to Mr. Gonzalez. 8 both parties the original. 9 (Pause) Please show 10 (At 10:15 a.m. a note was received from the jury) 11 MS. SHROFF: 12 THE COURT: 13 Good morning. We have a note from the jury. 14 MS. SHROFF: 15 THE COURT: 16 Good morning. Okay. Sorry, I was late. That's all right. I think the note's on your desk there. 17 MS. SHROFF: Sorry? 18 THE COURT: 19 MS. SHROFF: 20 (Defendant present) 21 THE COURT: The note's there. Okay. We have a second note from the jury, 22 received just minutes ago. 23 have the transcript from David's testimony, particularly around 24 Exhibit 1209-8." 25 The message is: "Can we please I've given copies of the note to both parties and show SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2999 K333SCHF 1 2 Deliberations them the original as well. Any comments or suggestions on the second note? "Can 3 we please have the transcript of David's testimony, especially 4 around Exhibit 1209-8." 5 MR. LAROCHE: 6 THE COURT: 7 MR. LAROCHE: We're going over it now, your Honor. And the first request? Your Honor, on the first request we 8 propose giving them an exhibit list, and noting on that list 9 what exhibits were published during trial. 10 THE COURT: 11 MS. SHROFF: 12 13 14 All right. I'm sorry. I missed that. What was the proposal? MR. LAROCHE: We propose giving them an exhibit list, and noting on the exhibit list what was published during trial. 15 MS. SHROFF: How are you going to note that? 16 MR. LAROCHE: We've kept track, your Honor. 17 MS. SHROFF: 18 track of them. 19 for the jury? No, no, I mean, I know. My question is how you're going to note that 20 MR. LAROCHE: 21 exhibit list for "published." 22 THE COURT: 23 24 25 We all kept We'll simply create a column on the Does "published" mean received in evidence? MR. LAROCHE: It means actually put on the screen, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3000 K333SCHF 1 2 Deliberations THE COURT: That means received in evidence, doesn't it? 3 MS. SHROFF: We would object to that. 4 MR. LAROCHE: We would propose giving them a list of 5 all exhibits entered into evidence, and then having a column so 6 they know what was actually put on a screen so they can see. 7 It seems to be responsive for what they are asking for, which 8 is things that were discussed during argument or trial. 9 MS. SHROFF: That's not what they are asking for. 10 THE COURT: What are they asking for, Ms. Shroff? 11 MS. SHROFF: 12 13 argument/trial. They're asked for using during Not published, not shown. Just used. What the government is trying to do is trying to 14 highlight its slide show. 15 deck of the slide show. 16 THE COURT: 17 MS. SHROFF: It's trying to highlight the Leedom How does a list of exhibits -The list of exhibits I don't mind. What 18 was entered into evidence is fine, and they have a very 19 detailed list so if they have a further followup question. 20 THE COURT: Is it in numerical order? 21 MR. LAROCHE: 22 THE COURT: 23 MS. SHROFF: Yes, your Honor. What's the problem with that? That's fine. I just don't want in any 24 way indicate which slides were actually shown on the TV screen, 25 because I think what the government is trying to do is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3001 K333SCHF 1 2 Deliberations highlight the Leedom deck. THE COURT: I don't think the government is trying to 3 do anything. I think the government is trying to respond to 4 the question from the jury. 5 satisfied by a list of exhibits in numerical order with an 6 indication of what was used in court. The question, if the jury can be 7 MS. SHROFF: 8 THE COURT: 9 With regard to David's testimony, particularly Exhibit 10 We have no objection to that. All right. Then that's what we'll do. 1209-8, you're digging that out? 11 MS. SHROFF: 12 THE COURT: 13 MS. SHROFF: Can I just have one second? Yes. Your Honor, I just want to make sure that 14 the jury is getting on the exhibit list all the exhibits that 15 were introduced at trial. 16 proposal the government is making, which is to just give them 17 the exhibits or highlight for the jury the exhibits that they 18 actually published on the screen. 19 as saying all of the exhibits used during trial, which is what 20 the note says. 21 22 THE COURT: That's the proposal. Not the The defense reads the note I view "used during trial" as received in evidence. 23 MS. SHROFF: That's what we are saying, yes. 24 THE COURT: 25 MR. LAROCHE: Mr. Laroche? That's fine, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3002 K333SCHF 1 2 THE COURT: Okay. Do you have an example of the exhibit list? 3 4 Deliberations MR. KAMARAJU: We're printing one up right now, your Honor. 5 THE COURT: Okay. 6 (Pause) 7 MR. LAROCHE: 8 THE COURT: 9 MR. LAROCHE: Your Honor? Yes, Mr. Laroche. I believe the parties agree that there 10 was no 1209-8 that was discussed. 11 that was discussed during his testimony. 12 THE COURT: 13 MS. SHROFF: Okay. There was, however, a 1202-8 Is that right, Ms. Shroff? I don't see any discussion in the trial 14 transcript of what, as I mentioned to the government, of 15 1209-8. 16 THE COURT: 17 MS. SHROFF: We can ask them. I think we should just reply -- actually, 18 may I just point out, your Honor, that on the note itself, 19 there is a spill. 20 THE COURT: 21 MS. SHROFF: 22 THE COURT: 23 MS. SHROFF: 24 I don't know how they have it. 25 THE COURT: There's what? A spill. A spill? Yes. The person's full name is written. As I recall it, when he was sworn in, he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3003 K333SCHF 1 was asked what his name was and he said his name. 2 3 Deliberations MS. SHROFF: 1209-8. That witness did not testify about That's the response to the note. 4 THE COURT: Okay. 5 MS. SHROFF: No. 6 Should we say there is a 1202 -We're not in the business of guessing what a jury wants. 7 MR. LAROCHE: 8 of his testimony. 9 1202-8. I mean, they are asking for a transcript It's clear that they are talking about That's what they want. 10 MS. SHROFF: They'll send a note back. 11 MR. LAROCHE: But to tell them he just simply didn't 12 testify about that might give them the misimpression that 13 they're just wrong about him testifying about an exhibit that 14 they clearly are interested in. 15 16 THE COURT: testimony. 17 18 19 They want the transcript from David's That's what they want. MR. LAROCHE: We have no objection of giving it to MS. SHROFF: We have no objection to giving them the them. 20 entire testimony. 21 MR. ZAS: Right? I would propose just saying we couldn't find 22 a reference in his testimony to 1209-8, and let them either 23 come back and say we misspoke, we wanted this, or they can ask 24 for the whole testimony. 25 THE COURT: It's not a guessing game. We want to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3004 K333SCHF Deliberations 1 helpful to the jury. They asked a question. 2 question can be answered by giving them a copy of the 3 transcript, which -- 4 MS. SHROFF: 5 THE COURT: Well --- will contain the correct exhibit 6 number. 7 the jury room anyway, don't they? Then they can ask for that. 8 MR. KAMARAJU: 9 THE COURT: 10 Yes, your Honor. So why don't we just give them the MR. ZAS: That would be both direct and cross and redirect? 13 THE COURT: 14 MR. ZAS: 15 THE COURT: 16 MR. LAROCHE: 17 THE COURT: 18 summary list of the exhibits. 19 MR. LAROCHE: 20 21 22 23 24 25 They have the exhibit in transcript. 11 12 Part of the now. Yes. No objection. All right. Mr. Laroche? Yes, your Honor. Okay. With regard to the first note, the Yes, your Honor. We are preparing that We'll prepare the transcript as well. THE COURT: All right. Should we call the jury in and tell them that? MR. LAROCHE: Your Honor, just so the record is clear, we plan to take out the objections on the transcript. THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3005 K333SCHF Deliberations 1 MS. SHROFF: Only ones that were sustained, right? 2 THE COURT: 3 (Jury present. 4 THE COURT: Only the ones that were sustained. Time noted 10:28 a.m.) We have your notes, the note that came in 5 at 9:50, "Can we please have a summary list of the exhibits." 6 We're preparing that list of the exhibits now and we'll give 7 that to you. 8 take? 9 MR. LAROCHE: 10 11 It make take -- how long do you think it will THE COURT: 10 minutes, 15 minutes, your Honor. Okay. Ms. Shroff, do you want to say something? 12 MS. SHROFF: 13 THE COURT: No, it's okay. So we'll have that list for you shortly. 14 And the second note, which came in at 10:10, "Can we please 15 have the transcript from David's testimony." 16 the transcript as well. 17 available. We're preparing We'll send that in as soon as it's 18 You can resume your deliberations now. 19 (Jury resumes deliberations. 20 THE COURT: Thank you. Time noted 10:30 a.m.) The other alternative is every day there 21 is a daily summary in the transcript of the exhibits discussed 22 during the trial. 23 as well. 24 jury. 25 So, but a numerical listing is satisfactory I'd like to see that before it's submitted to the MR. LAROCHE: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3006 K333SCH1 Deliberations 1 THE COURT: 2 MR. LAROCHE: 3 THE COURT: 4 The transcript is direct, cross, redirect? As Ms. Shroff points out, there is no recross. 5 MS. SHROFF: 6 THE COURT: 7 Yes, your Honor. You wouldn't let me, your Honor. I know. I'm old fashioned I guess. Okay. Thank you. 8 MR. LAROCHE: Thank you, your Honor. 9 (Recess pending verdict) 10 (At 1 p.m., a note was received from the jury) 11 THE COURT: We have notes from the jury which we've 12 given to the parties. 13 think it is one note, because it asks questions 1 through 5 on 14 the first sheet, and 6 and 7 on the second sheet. 15 "Message: It comes on two sheets of paper. What is included in Count Three? I We aren't 16 sure what the purview is -- articles, search warrants, tweets? 17 (2) In 2015, when DevLAN went down, was Schulte called to fix 18 the problem? 19 what was found on Schulte's home computer? 20 reference Schulte's taking a drug ("took my last piece")? 21 so, what was it? 22 Schulte's been diagnosed with Aspergers Syndrome? 23 Count One, is Altabackups inclusive of Brutal Kangaroo? 24 inclusive of OSB libraries? 25 housed/where did they live?" How did he fix it? (3) Can you please reread Was it regular use? (4) Did GX 809 If (5) Is it confirmed that (6) For Is it (7) Where were OSB libraries SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3007 K333SCH1 1 2 Deliberations We got these notes, the first one at 1 p.m. and the second one at 1:04 p.m. 3 I'll call on the government first. 4 MR. LAROCHE: Mr. Laroche? Your Honor, I think just starting with 5 number three, "Can you please reread what was found on 6 Schulte's home computers." 7 effect that talks about the exhibits that came from his home 8 computers. 9 that exhibit. There is a stipulation to this I think we could read that to them or refer them to There was also testimony about what was found on 10 his home computer from two people, Mr. Berger and Mr. Evanchec. 11 I think several of these, your Honor, I think there is 12 nothing to give them. I think it asks their reliance on the 13 evidence. 14 Schulte called to fix the problem." 15 anything in the record related to that, other than an e-mail. 16 But I don't think that addresses that specific question. For example, number two, "When DevLAN went down, was 17 THE COURT: 18 MS. SHROFF: I don't believe there was Ms. Shroff, do you want to speak? I think there is testimony about that. 19 That he was at a conference and was called in to fix the system 20 because he was the only person who could fix the system, is 21 what I understand. 22 there was also testimony that Bonnie thought he had Aspergers. 23 THE COURT: And I think also, about the Aspergers, No. I recall the testimony. You asked 24 whether the failure to have eye contact was because he had 25 Aspergers Syndrome, and the person on the stand, it's in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3008 K333SCH1 Deliberations 1 record, and you can answer that question. 2 So it was a pretty good example of -- 3 MS. SHROFF: 4 THE COURT: 5 MS. SHROFF: 6 The person said no. Could I just have a minute. -- the questions not being evidence. Yes. Could I just have a minute to pull up the question. 7 THE COURT: Sure. 8 MS. SHROFF: 9 (Pause) 10 MR. ZAS: Okay. Your Honor, the only thing I'm finding now 11 is a transcript page 1777, 1777, this is the witness Bonnie on 12 cross-examination. 13 "Q. 14 there come a time" -- Starting on line 24. The question is: Let's fast forward a little bit and ask you this. 15 I'm sorry. Not Bonnie. It's Karen. Did I'm sorry. 16 "Did there come a time when you were talking to Bonnie and 17 Bonnie told you that perhaps he didn't make eye contact because 18 she thought he had Aspergers; do you recall that? 19 "A. 20 how to handle the situation. 21 "Q. 22 of 2015 that that might be the reason for the no eye contact, 23 correct? 24 "A. It was the first time -- 25 "Q. Just yes or no. We had that conversation when we were trying to figure out Right. And it never occurred to you back then in October SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3009 K333SCH1 Deliberations 1 "A. No, it had not occurred to me. 2 "Q. And you never, ever asked anybody anything about the 3 failure to make eye contact, correct? 4 "A. Correct." 5 THE COURT: 6 MR. ZAS: Okay. I think that's the excerpt. I don't think 7 it answers the jury's question, which is, is it confirmed or 8 not. 9 this portion of the testimony or just say there's no evidence 10 So, I suppose our proposal is either to direct them to in the record as to whether it's confirmed. 11 THE COURT: Why not do the both? 12 MR. ZAS: 13 THE COURT: 14 MR. KAMARAJU: 15 THE COURT: 16 What about one, two, three, four, six and seven. 17 MR. KAMARAJU: We would not object to that. Government? That's fine for us, your Honor. Okay. That takes care of five. Your Honor, I think we're still digging 18 up whether there was anything with respect to the other ones. 19 I think two -- sorry. 20 really do is direct them to the language of the indictment. 21 The language of the indictment charges that he disclosed 22 information during that time period in whatever form. 23 THE COURT: 24 the information in. 25 I think one, the only thing we could I think they are asking what format was MR. KAMARAJU: We -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3010 K333SCH1 Deliberations 1 THE COURT: Articles, search warrant, tweets. 2 MR. KAMARAJU: We've obviously identified for the 3 Court and the defense what those are. 4 of the transcript that relate, for example, to the search 5 warrant and the tweets, which is where the government alleges 6 the classified information was contained in. 7 THE COURT: 8 MR. ZAS: 9 We could read the parts Mr. Zas? Your Honor, I think the best way to proceed here is to read them -- we have no objection to reading them 10 the charge, charge three, or to refer them back to your Honor's 11 instructions on Count Three. 12 But I think the risk of starting to select certain 13 portions of the evidence risks being under-inclusive, and also 14 perhaps being inaccurate. 15 16 MS. SHROFF: system is at 1783. 17 18 The issue of him being called to fix the MR. KAMARAJU: We don't object to 1783 and 1784 going back. 19 MS. SHROFF: 20 MR. KAMARAJU: 21 MS. SHROFF: 22 Do you have the pages for the last piece? 23 24 25 Then it's in Weber. Where? I'm looking, hold on. It's 2485 and 2619-2620. MR. ZAS: Your Honor, our reading of the record as far as question four goes, is that there is nothing specifically SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3011 K333SCH1 Deliberations 1 stating whether the piece refers to a drug or something else. 2 So I think unless the government finds something else, it just 3 might be appropriate for to you say it's up to you, the jury, 4 to determine what Government Exhibit 809 means in light of that 5 document and all the other evidence. 6 MS. SHROFF: 7 THE COURT: 8 Your Honor -Mr. Zas, could you repeat that, please. It is up to you, the jury, to what? 9 10 Something like that. MR. ZAS: To determine the meaning of Government Exhibit 809 based on that document and all the other evidence. 11 12 THE COURT: 13 MR. KAMARAJU: 14 MS. SHROFF: Is that all right with the government? I think that's fine, your Honor. The testimony pages should go in, your 15 Honor. 16 into evidence the fact that that language is actually on 809. 17 And then on 2619-2620 is where the testimony is about the last 18 piece. 19 Pages 2484 is where I ask Mr. Kamaraju to actually read MR. KAMARAJU: It seems like we should either give 20 them that testimony or you should give them the instruction 21 that you were about to give them. 22 THE COURT: 23 MR. KAMARAJU: 24 25 I prefer to give them the testimony. That's fine with the government, your Honor. THE COURT: Ms. Shroff? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3012 K333SCH1 Deliberations 1 MS. SHROFF: 2 THE COURT: 3 MS. SHROFF: 4 THE COURT: 5 MS. SHROFF: 6 THE COURT: 7 MR. ZAS: That's fine. As long as it's -- Give me the pages. No. 2484 and 2619? 2484 to 2485, 2619 to 2620. What's the first one, 2484 to 2485? Yes, your Honor. Okay. Just for clarification, did you decide to do 8 the transcript in lieu of any -- the first part we talked about 9 or are you going to do both? 10 THE COURT: 11 MR. ZAS: 12 THE COURT: I prefer to give them the transcripts. That's fine. All right. On number one, my notes 13 reflect we're going to tell them to reread the charge in Count 14 Three. 15 16 What are we doing on Count Two? transcript you wanted me to read or want them to read? 17 MS. SHROFF: 18 MR. KAMARAJU: 19 MS. SHROFF: 20 MR. KAMARAJU: 21 MS. SHROFF: 22 23 24 25 There's some pages of I gave the government the range. I believe it was 1783 to 1784. 1785. The government doesn't object to it. I think, let me just look if you want. We can just print that out and take a look if you need. THE COURT: 1783 to 1785 takes care of Mr. Schulte's work on -- Mr. Schulte is not here. MS. SHROFF: I'm sure Mr. Gonzalez will have him come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3013 K333SCH1 1 Deliberations up before the jury is brought out. 2 THE COURT: Is he in the building? 3 MS. SHROFF: Yes, he's in the building, your Honor. 4 THE COURT: Mr. Laroche and Mr. Kamaraju, what is the 5 response to number three? 6 lists all this? 7 MR. LAROCHE: You said there is an exhibit that There is a stipulation, your Honor, that 8 lists out what was recovered and entered into evidence from his 9 home computer. It is 3003. 10 THE COURT: 11 MS. SHROFF: Okay. Your Honor, to the extent there's 12 testimony about his home computer that goes in, I think Special 13 Agent Schlessinger was also asked questions about the RAID file 14 in his home. 15 THE COURT: 16 MS. SHROFF: 17 THE COURT: Do you have a page reference? I'm looking, your Honor. Are we just going with the stipulation of 18 GX 3003 or do we have testimony in response to inquiry number 19 three? 20 Number five I'm going to say there is no evidence of 21 record that Mr. Schulte has been diagnosed with Aspergers 22 Syndrome. And then I have pages to refer to? 23 MR. KAMARAJU: 24 THE COURT: 25 That's fine. From Karen's testimony? Can you give me that, Ms. Shroff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3014 K333SCH1 Deliberations 1 MS. SHROFF: I thought that was 1783 to 1785. 2 MR. LAROCHE: I think it's 1777-78 is for the 3 Aspergers portion. 4 THE COURT: 5 MR. LAROCHE: 6 THE COURT: 7 MR. LAROCHE: 8 THE COURT: 9 MR. LAROCHE: 10 1777-1778? Yes. What happened to 1783 through 1785? That is for number two. Okay. All right. Six and seven? We're identifying the testimony now, your Honor. 11 THE COURT: Thank you. 12 (Defendant present) 13 MR. LAROCHE: 14 THE COURT: 15 MR. LAROCHE: 16 MS. SHROFF: 17 MR. LAROCHE: Your Honor, just a point on number six. Yes. Ms. Shroff. Yes. Sorry, just an alternative potential 18 reading of point six is that the jury is asking whether Count 19 Four is just about taking the Altabackups or if it also is 20 inclusive of conduct related to Brutal Kangaroo. 21 that happened in May 2016, or the OSB libraries conduct that 22 happened in April 2016. So conduct 23 MS. SHROFF: Then you have to reread them Count Four. 24 MR. LAROCHE: I think that is a potential reading of 25 that question. It's hard to know what they mean by "inclusive SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3015 K333SCH1 1 2 of." Deliberations They specifically identify Count Four. MR. ZAS: Maybe question four it might be better to 3 ask them to be more specific. 4 MR. LAROCHE: 5 MR. ZAS: 6 MR. LAROCHE: 7 (Pause) 8 MR. ZAS: 9 question. That's fine. For question six. Question six, Count Four. Yes. We may have a solution on the home computer The jury seems to be interested when they ask can 10 you please reread what was found. 11 they want, which is the list, is contained in Government 12 Exhibit 3003. 13 just tell the jury that Government Exhibit 3003 contains a list 14 of what was found on Mr. Schulte's home computers. 15 It sounds like maybe all I think the parties would propose that the Court THE COURT: I wonder about the utility of these 16 conferences because that's what my notes say. 17 10 minutes ago saying why don't we just refer to 3003. 18 MR. ZAS: 19 THE COURT: 20 21 I took the notes Sometimes it takes us longer to appreciate. Brilliant minds running on similar channels. MR. ZAS: I appreciate your wisdom. It might be 22 appropriate to say there is also testimony related to that, and 23 if you're interested in that, please let us know. 24 don't feel like they are being ignored. 25 THE COURT: Shunted aside. Fine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So they 3016 K333SCH1 1 Deliberations MR. LAROCHE: Your Honor, I think we have a proposal 2 on seven, the last one. We've identified testimony from 3 Mr. Leedom from pages 974 to 980, and this is in response to 4 "Where were OSB libraries housed/where did they live." 5 testifies about Stash, which is where they lived, and audit 6 logs from Stash. 7 responsive because it identifies that is the location where 8 they are. He I think that portion of the testimony is 9 THE COURT: 10 at 974 through 980? We'll just refer to Mr. Leedom's testimony 11 MR. LAROCHE: 12 THE COURT: 13 MR. LAROCHE: 14 THE COURT: Yes, your Honor. Going to review the seven answers now. Yes, your Honor. The responses to question one. I'm going 15 to tell the jurors that the best advice we can tell them is to 16 reread the Court's instruction on Count Three. 17 18 On question two, whether Mr. Schulte was called to fix the problems, we refer them to pages 1783 and 1785. 19 As to question three, about the home computer, I refer 20 them to GX 3003, and if you want more information, please let 21 us know. 22 On four, about taking my last piece, it is up to you, 23 the jury, to determine the meaning of this exhibit, based on 24 that document and all the other evidence. 25 determine the meaning of 809, based on that document and all It is up to you to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3017 K333SCH1 1 the other evidence. 2 3 Deliberations I have reference here to pages 2984-2985, and 2619-2620, do you want those page references in or out? 4 MR. KAMARAJU: I guess your preference had been to 5 send those pages back instead of giving the instruction. 6 we're happy to give both. 7 THE COURT: 8 MR. LAROCHE: 9 MS. SHROFF: 10 I guess I prefer the pages. That's fine. Could you just reread the page numbers you just cited? 11 THE COURT: 12 Number five. Yes. 2484-2485 and 2619-2620. There is no evidence of record that 13 Mr. Schulte has been diagnosed with Aspergers Syndrome. 14 reference to pages 1771 through 1778. 15 MR. LAROCHE: 16 THE COURT: 17 MR. LAROCHE: 18 THE COURT: 19 In I think it's 1777, your Honor. 1777 through 1778. Thank you. And number six, we're going to ask them to be more specific. 20 21 But And on number seven, we're going to cite pages 974 and 980. 22 MR. LAROCHE: 23 THE COURT: 24 MR. ZAS: 25 THE COURT: Yes, your Honor. Any further comments from Mr. Schulte? May we have one second, your Honor. Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3018 K333SCH1 Deliberations 1 MS. SHROFF: Are we going to give them the pages? 2 THE COURT: 3 MS. SHROFF: 4 THE COURT: 5 MR. KAMARAJU: 6 MR. ZAS: I thought we'd give them the pages. That's fine. We all set? From the government's perspective, yes. We're just checking to see whether anyone 7 else other than Mr. Leedom testified about where the OSB 8 libraries were housed. 9 Did Mr. Leonis or Mr. Weber ever talk about that? 10 MR. KAMARAJU: 11 MS. SHROFF: 12 Aspergers answer. I don't believe so. I think 1778 comes in as part of the You have that, right? 13 THE COURT: 14 It's been an hour now since the jury asked these 15 1777-1778. questions. 16 MS. SHROFF: But that testimony that the government is 17 directing us to is removing OSB libraries access. 18 answer where was OSB libraries was housed or where did they 19 live. 20 MR. LAROCHE: 21 logs. 22 project. 23 24 25 It does not It talked about where they got audit They got audit logs from Stash because it is a Stash That is responsive to the question, your Honor. MS. SHROFF: I don't think so. question asked, so we don't agree. THE COURT: That's not what the That's all. You can always ask to be more specific SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3019 K333SCH1 Deliberations 1 with regard to question seven. 2 MS. SHROFF: Or you can just answer on Stash if you 3 want. 4 This testimony is about a totally different topic. 5 But I don't think you can give them this testimony. MR. LAROCHE: If Ms. Shroff would prefer just saying 6 it lives on Stash, that's fine with us. 7 trying to answer. That's what we are 8 MS. SHROFF: 9 MR. LAROCHE: It is a Stash project. 10 MS. SHROFF: Lives on Stash is fine. 11 THE COURT: 12 That's fine. What do we say in response to seven? Are we giving page references? 13 MS. SHROFF: 14 MR. ZAS: They live on Stash. I think what we are saying is the parties 15 agree it was housed on Stash or lived on Stash. 16 giving them testimony that doesn't really respond to anything, 17 to just essentially just make this an agreed-upon answer. 18 MR. KAMARAJU: 19 MR. LAROCHE: 20 THE COURT: 21 OSB libraries lives on Stash. Rather than Okay. That's fine. The parties agree with that, Mr. Zas, that 22 MR. ZAS: Or was housed on Stash, either way. 23 THE COURT: 24 (Jury present. 25 THE COURT: Call the jurors in. Time noted 2:12 p.m.) We have answers to your questions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3020 K333SCH1 1 Deliberations Question number one: What is included in Count Three? 2 We aren't sure what the purview is -- articles, search warrant, 3 tweets? 4 The best I can do in response to question number one 5 is to instruct you to read my instructions to you on Count 6 Three of the indictment in my jury charge to you. 7 Question number two: 8 was Mr. Schulte called to fix problems? 9 10 How did he fix it? I refer you to pages 1783 through 1785, and we'll send those into the jury room for your consideration. 11 Three: 12 Schulte's home computers? 13 Can you please reread what was found on What was found on Mr. Schulte's home computers is in 14 stipulation GX 3003. 15 us know. 16 In 2015, when DevLAN went down, If you want more information, please let Question number four: Did GX 809 reference 17 Mr. Schulte's taking a drug ("took my last piece")? 18 what was it? If so, Was it regular use? 19 We refer you to pages 2484 to 2485, and 2619-2620. 20 Five: 21 22 Is it confirmed that Mr. Schulte has been diagnosed with Aspergers Syndrome? The answer is there is no record evidence received in 23 evidence that Mr. Schulte has been diagnosed with Aspergers 24 Syndrome. 25 I refer you to pages 1777 through 1778. With regard to question six: For Count Four, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3021 K333SCH2 Deliberations 1 Altabackups inclusive of Brutal Kangaroo? 2 OSB libraries? 3 question, we don't understand it. 4 5 Is it inclusive of We ask you there to be more specific with your Question number seven: Where were OSB libraries housed/where did they live? 6 The parties agree that the answer to this, where the 7 OSB libraries was housed, was it was housed in Stash. 8 You can continue your deliberations. 9 (Jury continues deliberations. 10 THE COURT: Time noted 2:15 p.m.) For the record, these exhibits were marked 11 8 and 8A. 12 Court Exhibit 8A reflects questions 6 and 7. 13 Court Exhibit 8 reflects questions 1 through 5, and The record will also reflect that Mr. Schulte was 14 present when the jury was in the room when I was reading the 15 instructions to the jury. Thank you very much. 16 MS. SHROFF: 17 (Recess pending verdict) 18 (At 3:03 p.m. a note was received from the jury) 19 THE COURT: 20 Thank you, your Honor. More notes from the jury. We're giving out copies now. 21 Court Exhibit 9: "Can we please have simplified badge 22 times/formats for Schulte on 4/20/16 in a format similar to GX 23 115." 24 25 Note 10, Court Exhibit 10: "in Exhibit GX 107, what does lock/unlock computer mean in columns Source and Type? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Is 3022 K333SCH2 1 Deliberations the computer locking itself? What is someone unlocking?" 2 Mr. Gonzalez will show you the originals. 3 What do we want to say in response to the first note, 4 Court Exhibit 9? 5 MR. LAROCHE: 6 exhibit the April 20 entries. 7 other than that, I think, at this point. 8 all his badge records for 2016, and we can pull out the 9 April 20 entries for them from that exhibit. 10 THE COURT: 11 MR. ZAS: 12 THE COURT: 13 MR. LAROCHE: Your Honor, we could pull out of that There's not much more to do It is an entry, it is Mr. Zas? No objection, your Honor. Okay. On the second exhibit, I don't think 14 there is anything in the record to point them to. 15 potentially, your Honor, it would be similar to the instruction 16 you were considering with the prison notebook, which is it is 17 up to you to determine based on the evidence before you and the 18 evidence in the record. 19 MS. SHROFF: 20 MR. LAROCHE: Wait. computer unlock and locking. 22 MS. SHROFF: 23 MR. LAROCHE: 24 MS. SHROFF: 105. What is GX 107? It includes badge records with the 21 25 So I think Whose badge records? Mr. Schulte's. Can you just look at Government Exhibit I think 115 is -- if you look at 105, 105 is that exhibit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3023 K333SCH2 Deliberations 1 in a format similar to 115. 2 out. Can you just take a look at 105. 3 4 So you don't have to pull anything MR. KAMARAJU: Ms. Hurst is pulling it up for everybody. 5 MS. SHROFF: You can take a look now at 115. 6 is Michael's badge records, I think. 7 to 105. 8 send them 105. 9 what they asked for. 10 That's 107. And that's 105. So 115 And 105 -- can we go back So why don't you just That's badge record in that format, which is MR. LAROCHE: I think they are asking for simplified 11 badge records for 4/20 because 105, the numbers aren't in 12 chronological order in all cases. 13 chronological, but if you go down to 4/20, there are some 14 entries that are not in that order based on how it was sorted. 15 MS. SHROFF: So it's generally in This is the exhibit that they put in. It 16 is the exhibit that is in the same format similar to Government 17 Exhibit 115. 18 19 It's exactly what they are asking for. MR. LAROCHE: Not exactly what they are asking for, your Honor. 20 MS. SHROFF: "Can we please have simplified badge 21 time/formats for Schulte on 4/20/16 in a format similar to GX 22 115." 23 MR. LAROCHE: 24 MS. SHROFF: 25 And -That's similar -- I just want to finish. So if you could just put the two things side by side, the two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3024 K333SCH2 1 Deliberations documents. 115. 2 THE COURT: 3 MS. SHROFF: 4 on the right. 5 Which is 115? 115 is on the left. And then Schulte is That's the same exact format. MR. LAROCHE: It is not the same exact format, your 6 Honor. Again, 115, which is on the left, is in chronological 7 order by times. 8 some times are out of order. 9 asking for is a format where it is in chronological order, for 105 is generally in chronological order, but 10 the defendant, on April 20. 11 that to them to be helpful. 12 MS. SHROFF: Our proposal would be to provide It's right there. 13 Badge column, badge column. 14 column. 15 Spindle, spindle. Person, person. Page 13 of 27. 4/20. Date time column, date time Action, action. Where, where. Access granted, access denied. 16 MR. LAROCHE: 17 THE COURT: 18 Schulte on 4/20/16. Again, your Honor -- I suppose we could give them the entry for 19 MS. SHROFF: 20 THE COURT: 21 MR. LAROCHE: 22 So it seems like what they are Exactly. Without anything else. That's fine, your Honor. That was our proposal. 23 MS. SHROFF: 24 THE COURT: 25 MS. SHROFF: No. Do you want to give me 415? You are going to give them page 13 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3025 K333SCH2 1 Deliberations page 14 of 27? 2 MR. LAROCHE: Your Honor, our proposal would be to 3 pull out from 13 and 14 the entries for 4/20, because there are 4 entries for other days on those pages. 5 6 MS. SHROFF: dates. 7 THE COURT: 8 MS. SHROFF: 9 They can read them as 4/20 or any other They asked about 4/20 though. I'm giving them 4/20. Court just to give them -- could you just blow it up so the 10 judge can see that 4/20 is on page 13. 11 page. 12 I'm asking the This is not the right Right. So, this is the page that has 4/20. And there it is. 13 You can't reorganize evidence. 14 just make a summary chart and give it to them because you want 15 to make a summary chart. 16 THE COURT: That's the format. You can't What I'm suggesting is you give them this 17 chart with the 4/20 date on it, and that's the only chart you 18 give them. 19 20 MS. SHROFF: That's page 13. I agree. You just print out page 13 of 27 and give it to them. 21 MR. LAROCHE: 22 MS. SHROFF: 23 MR. LAROCHE: 24 MS. SHROFF: 25 MR. LAROCHE: Your Honor, they have this already. No, they have it as a 27 -Ms. Shroff. Go ahead. They're asking for April 20, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3026 K333SCH2 1 Deliberations Our proposal is to provide them the entries for April 20. 2 MS. SHROFF: No. 3 MR. LAROCHE: 4 MS. SHROFF: 5 THE COURT: 6 MR. LAROCHE: Again. I thought you were done. Ms. Shroff, you can't interrupt. Our proposal was to provide them the 7 entries just for April 20 on these pages. 8 this in evidence. 9 That's our proposal. 10 MS. SHROFF: 11 MR. LAROCHE: 12 MS. SHROFF: 13 MR. LAROCHE: 14 They already have They are asking for something similar. No. 13 and 14. I wish you would finish. 13 and 14, that's our proposal, your Honor. 15 MS. SHROFF: You can give them page 13 of this 16 document, and on page 14 if there is anything about April 20, 17 give it to the jury. 18 government making a different document and extracting data from 19 that. 20 21 22 But we are not going to agree to the That's not proper. THE COURT: They are not make a different document, are they? MS. SHROFF: They are suggesting they highlight for 23 them what is April 20. You can read what is April 20. 24 now they may not be able to read it because they are looking at 25 it as a full 27-page document and in a different format. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Right We 3027 K333SCH2 1 Deliberations don't know what exhibit they are looking at. 2 So this is in the format of 115, it answers the 3 question, and the government shouldn't be making a third 4 exhibit or highlighting this in any way. 5 note asked for. 6 115." Read the note. 7 THE COURT: 8 MS. SHROFF: 9 THE COURT: 10 suggestion. 11 12 That's not what the "In a format similar to GX All right. This is -I'm going to adopt the government's Tell me again what it is, Mr. Laroche. MR. LAROCHE: On pages 13 and 14, we would provide them just the entries for April 20. 13 MS. SHROFF: They are not even looking at this exhibit 14 yet. They are looking at 107. Right? They haven't -- you 15 don't know what exhibit the jury is looking at. 16 document that's responsive to April 20. 17 with printing this page and giving it to them? So this is the What's the problem 18 THE COURT: You have your objection. What about -- 19 MS. SHROFF: I'm sorry, your Honor. Can you tell me 20 21 22 23 how it's going to go into the jury? THE COURT: How is it going to go into the jury, Mr. Laroche? MR. LAROCHE: We'll provide them pages 13 and 14 with 24 just the entry for April 20. 25 MS. SHROFF: That's not proper. They are redacting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3028 K333SCH2 1 Deliberations information. 2 THE COURT: 3 What about Exhibit 10? 4 All right. You have your objection. Court Exhibit 10? Locking and unlocking computer. 5 MR. LAROCHE: We propose that you just simply tell 6 them that they have to rely on the exhibit. There is nothing 7 else in the record related to that question. They can draw 8 whatever inference they want. 9 MS. SHROFF: 10 Your Honor, could you just go back, please, to pages 13 and 14 for a minute. 11 THE COURT: 12 MS. SHROFF: They are on my screen. Could you take a look at 14. 13 they planning to give this? 14 4/20, 4/21, 4/20. 15 That's not proper. 16 How are On 14 there's dates that go 4/21, Are they going to redact those lines? MR. LAROCHE: Yes, your Honor. Yes, we would redact 17 them, and we can tell them that they also have the complete 18 exhibit. But they have asked for April 20. 19 THE COURT: All right. 20 (Jury present. 21 THE COURT: Call in the jury. Time noted 3:33 p.m.) I have your notes. The first note is: 22 "Can we please have simplified badge times/formats for Schulte 23 on 4/20/16 in a format similar to GX 115." 24 25 We're going to provide that information to you which shows the dates and times for Mr. Schulte on 4/20/16. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3029 K333SCH3 1 Deliberations With regard to the second note: "In Exhibit GX 107, 2 what does lock/unlock computer mean in columns Source and Type? 3 Is the computer locking itself? 4 What is someone unlocking?" I am afraid the record that we have does not answer 5 these questions. So you'll have to rely on the document itself 6 and all the other evidence in the record. 7 resume your deliberations. 8 (Jury resumes deliberations. 9 THE COURT: Thank you. You can Time noted 3:35 p.m.) Thank you. 10 (Recess pending verdict) 11 (At 3:37 p.m. a note was received from the jury) 12 THE COURT: We have another note from the jury. 13 note was contained in an envelope which is marked "For 14 Tomorrow." 15 this is available for your inspection. 16 note into the record. 17 The jury intends to go home at 4 o'clock. The But, I'll just read this "(1) Is there evidence that April 18 and 20 were the 18 only two times in 2016 that Schulte left the vault last? 19 What does mount the Altabackups mean? 20 data store mean? 21 machine, what happens to the log files from that session?" 22 23 (2) (3) What does create (4) When someone logs out of a virtual I'd suggest the parties get together and see if they can't format an answer to these questions. 24 MR. LAROCHE: 25 THE COURT: Yes, your Honor. And the answer to the questions may very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3030 K333SCH3 Deliberations 1 well be you can't answer the questions, and they have to rely 2 on the record as it exists, the trial record as it exists now. 3 So I'd suggest we get together at 9 o'clock tomorrow 4 morning, and if we have answers we'll call the jury in. 5 don't have answers, we'll formulate the answers and then call 6 the jury in. 7 Anything else to take up tonight? 8 MR. LAROCHE: 9 THE COURT: 10 MS. SHROFF: 11 THE COURT: 12 MS. SHROFF: 13 (Adjourned until March 4, 2020, at 9 a.m.) No, your Honor. If we Thank you. Thank you very much. Your Honor. We don't need anything. Okay. Thank you. 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300