3031 K343SCHF 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 4, 2020 9:20 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 20 SABRINA P. SHROFF Attorney for Defendant -andDAVID E. PATTON Federal Defenders of New York, Inc. BY: EDWARD S. ZAS Assistant Federal Defender -andJAMES M. BRANDEN 21 22 23 24 Also Present: Colleen Geier Morgan Hurst, Paralegal Specialists Achal Fernando-Peiris, Paralegal John Lee, Litigation Support Daniel Hartenstine, CISO, Department of Justice 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3032 K343SCHF Deliberations 1 (Trial resumed; jury not present) 2 THE COURT: 3 What is the status of the request that we got at 3:45 We're still missing Juror No. 4. 4 last night, Court Exhibit 11? 5 questions. 6 MR. LAROCHE: That's the one with the four Yes, your Honor. First, the one we 7 agree on, number four, the parties agree there is nothing 8 responsive to that in the record. 9 One, two, and three we just have slight variations 10 where we're at in terms of transcripts. 11 one. 12 vault. So I'll start with For one, this refers to a question about locking the 13 The parties agree on this one to refer to the jury to 14 look at Exhibit 105, which are the defendant's badge records 15 for 2016. 16 Mr. Leedom's testimony. 17 more of that testimony than the defense. 18 differences to your Honor. the parties also agree to refer to a portion of 19 THE COURT: 20 MR. LAROCHE: But the government proposes slightly We provided the two The defense proposal is? We both refer to the same portion of 21 Mr. Leedom's testimony. The defense cuts it off slightly 22 earlier than the government does. 23 So I believe at the end, Mr. Leedom is testifying 24 about the defendant's badge records, and what the arm lock 25 means. And the government proposes including the information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3033 K343SCHF Deliberations 1 on the second page where he's asked to explain the badge 2 records relating to the defendant. 3 4 MR. ZAS: Judge, I can just explain the objection we have. 5 THE COURT: 6 MR. ZAS: Okay, Mr. Zas. The question is about generally whether 7 there is evidence that these two dates were the only two times 8 in 2016 that Mr. Schulte left the vault last. 9 agreement with the government about giving them the badge 10 11 12 13 14 So we're in records, and they'll see for themselves how many times it was. Then we have this portion that just explains what it means to arm and disarm the vault. But then, when Mr. Laroche asked the question on page 1100 of the transcript, it starts to focus -- 15 THE COURT: 16 MR. ZAS: 17 THE COURT: 18 MR. ZAS: 19 THE COURT: 20 MR. ZAS: Let me get to 1100. Yes, sorry. Okay. I'm at 1100 for both. On 1100, we would end at line 4. Yes. Because then it goes on to focus on a 21 specific date and time that Mr. Schulte armed the vault. 22 we don't think -- that's not what the jury is asking. 23 no reason to highlight the one specific time that the 24 government wants to focus on there. 25 THE COURT: All right. And There is On one, is there evidence that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3034 K343SCHF Deliberations 1 April 18 and 20 were the only two times in 2016 that Schulte 2 left the vault last. 3 We're going to give them Exhibit 105? 4 MR. ZAS: 5 THE COURT: 6 That's correct. for 2016. 7 MR. ZAS: 8 THE COURT: 9 10 11 Which is the records, the badge records Yes. And then as for Mr. Leedom's testimony, I'm going to, with respect to that, I'm going to allow from 1099:10, all the rest of the page to 25 to page 1100:1-4. MR. ZAS: Your Honor, we just have one objection to 12 what you've just said. 13 out lines 10 through 16 was just there seems to be an answer 14 that's really non-responsive about a VM folder and a different 15 file that was deleted. 16 and it just causes more confusion. 17 18 THE COURT: explanation. Just on page 1099, the reason we took And we just thought it's not responsive It is the lead in to the badge records I assume that's -- 19 MR. LAROCHE: 20 THE COURT: 21 MR. ZAS: 22 MR. LAROCHE: 23 THE COURT: 24 MR. ZAS: 25 THE COURT: Yes, your Honor. -- that's why you want it. Okay. Yes, your Honor. It is a fuller response. We just have one more thought. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3035 K343SCHF 1 2 Deliberations MR. ZAS: You recall that we're giving the jury also a redacted portion of Government Exhibit 105. 3 THE COURT: 4 MR. ZAS: 5 Yes. From yesterday that just shows April 20 entries. 6 THE COURT: 7 MR. ZAS: Yes. We asked the government, just so the jury is 8 not confused, to label that as GX 105 Redacted, which they've 9 done for us, but it is a very small sticker. 10 to make sure the jury doesn't get confused. 11 could explain to them that in response to their, I guess it was 12 the last note, we're giving them Government Exhibit 105 with 13 redactions, and we're also giving them this morning the 14 complete version of Government Exhibit 105, so they're not 15 confused. 16 And we just want So if your Honor Because they look identical from the stickers. THE COURT: So, that really answers two questions. It 17 answers the one question that they put to us yesterday, then it 18 answers question number one on court exhibit 11. 19 MR. ZAS: 20 THE COURT: 21 22 That's right. All right. What's this about the Altabackups mean? MR. LAROCHE: Yes, your Honor. So the parties just 23 have different proposals in terms of transcript cites. So I'll 24 give you the government's first, and we provided the excerpts 25 to you this morning. We would propose Mr. Weber's testimony SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3036 K343SCHF Deliberations 1 from 254:15 through 256:15. 2 testimony from 950:1 through 953:23. 3 4 The defense has agreed on Mr. Weber's testimony, but to a smaller portion. 5 THE COURT: 6 MS. SHROFF: 7 We would also propose Mr. Leedom's Only 254:20 to 255:1. Mr. Zas? Can you just give us what you gave the Court? 8 MR. ZAS: Your Honor, as I read the question, question 9 two, especially because the jury has the word "mount" in 10 quotation marks, I think they're confused as to what the 11 meaning of that term is. 12 confusion. 13 page 254 of the transcript, starts with the question, "Are you 14 familiar with the term mount point?" 15 So we tried to focus on that And we think that our proposal, which starts on THE COURT: Just a minute. I only have one 16 defendant's proposal that deals with the first dispute. 17 don't have anything from you on two, three and four. 18 19 MR. LAROCHE: 22 Your Honor, I'll pass up the defense's and ours so you have it for Mr. Weber. 20 21 I THE COURT: I've got number two before me now, Mr. Zas. MR. ZAS: So our proposal is beginning on page 254, we 23 would give the jury, starting on line 20, with the question 24 that starts, "Are you familiar with the term 'mount point'?" 25 Then the answer there gives a succinct answer, and we would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3037 K343SCHF Deliberations 1 stop it on line 1 of 255. The remainder starts to get into 2 what the defendant allegedly did and where various points were 3 located. 4 beyond what the jury's asked for. And it becomes kind of a long colloquy that goes 5 THE COURT: Mr. Laroche. 6 MR. LAROCHE: Your Honor, I think the question asks 7 specifically about mounting the Altabackups. The defense's 8 proposal relates only to just mount points generally. 9 we've included relates specifically to mounting the What 10 Altabackups, which we believe is directly responsive to what 11 they've asked for. 12 more pages. And it's only, at least with Mr. Weber, two 13 And then we've also separately provided Mr. Leedom's 14 testimony relating to Altabackups and what the mount point on 15 the Altabackups means, which is specifically what they've 16 asked. 17 mount point generally. 18 "What does mount the Altabackups mean." THE COURT: Not just a Looking at this, Mr. Zas, there is 19 continuing references in the government's proposal of Weber, 20 starting at page 5, about mount commands and mount points. 21 Mount point -- it seems to be so, now, this is Weber. 22 there's other material as well, Mr. Laroche? 23 24 25 MR. LAROCHE: now. Yes, your Honor. You say I'll pass it up right This is Mr. Leedom. MR. ZAS: Your Honor, if you are inclined to go the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3038 K343SCHF Deliberations 1 government's way on this point and put in the portion, the 2 additional portion they want from Mr. Weber's testimony, we 3 would have a separate request for some of the cross also to 4 make it complete. 5 THE COURT: 6 MR. ZAS: 7 THE COURT: 8 MR. LAROCHE: 9 10 11 last night. Yes. Should we give that to you now? Yes, please. We're fine with that. We proposed that So we are fine with that. MS. SHROFF: Mr. Gonzalez, can we borrow your hard copy of 487? 12 THE DEPUTY CLERK: 13 MS. SHROFF: 14 (Pause) 15 THE COURT: What date is that? The first witness. On request number one, we're going to give 16 Mr. Leedom's testimony starting on page 1099:10, going over to 17 page 1100:4. 18 19 That's the response to number one. Number four, the response is there's nothing in the record that enables us to respond to this inquiry. 20 Where are we on two? 21 MR. LAROCHE: 22 THE COURT: 23 MR. ZAS: 24 THE COURT: 25 MR. LAROCHE: I believe we have agreement, your Honor. Okay. Sorry it took so long, Judge. That's all right. So, your Honor, we at least have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3039 K343SCHF 1 Deliberations agreement as to Weber at this point. 2 THE COURT: Okay. 3 MR. LAROCHE: 4 THE COURT: 5 MR. LAROCHE: 6 THE COURT: 7 MR. LAROCHE: 254:15. 254:15. To 256:15. Okay. And we have cross for Weber, 485:9 to 8 487:24. And then on redirect, your Honor, the parties agree 9 521:10 through 521:22. 10 THE COURT: 11 MR. LAROCHE: 12 Okay. THE COURT: 14 MR. LAROCHE: 15 THE COURT: 16 MR. LAROCHE: on. Okay. 19 MR. LAROCHE: 20 THE COURT: 23 Your Honor, on Mr. Leedom. We have a small portion that we agree 950:17. THE COURT: 22 Yes. Yes. 18 21 Your Honor, we just have one more suggestion on number two for Mr. Leedom. 13 17 Number three? Yes. Through 951:12. Any cross or redirect? 950:17 through 951:12; is that right? MR. LAROCHE: That's right, your Honor. It is a very limited portion. 24 THE COURT: 25 MS. SHROFF: That takes care of two. What about three? No, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3040 K343SCHF 1 Deliberations MR. ZAS: Your Honor, we're just checking the cross to 2 see if there is anything that should be added just on that 3 portion you just referred to. 4 THE COURT: 5 MR. ZAS: 6 THE COURT: 7 MR. LAROCHE: All right. We have nothing to add on that question. Okay. On the third, your Honor, both parties 8 agree to portions of Mr. Leedom's testimony, just different 9 lengths of those portions. 10 first. 11 12 So I'll give you the government's So 984:4 through 989:1 is the government's. The defense has 985:9 through 17. 13 The government reads this question, "What does create 14 data store mean" to refer to the discussion of a particular 15 exhibit that Mr. Leedom addressed and how it relates to the 16 backups. 17 what a data store is. 18 So we included that full discussion, which relates to MR. ZAS: Our position on this one is, this is one of 19 those rare instances where there is something very succinct and 20 very responsive to the question. 21 the question is: 22 store." 23 goes off on other more confusing forensic stuff. 24 this one is just straight answer to the jury's question. 25 It is right on page 985, and "Let's start first with what is a NAS data And he answers it right there. MR. LAROCHE: And everything else So we think Your Honor, we obviously disagree. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 We 3041 K343SCHF Deliberations 1 feel that the surrounding context is important to understanding 2 what it means to create a data store, so we have just proposed 3 additional language. 4 THE COURT: I think the answer at 985:9-17, let's 5 start first what is a data store. 6 store is simply going down to line 17. 7 MR. LAROCHE: 8 THE COURT: 9 MR. LAROCHE: So I'll first explain a data Your Honor -- I'm going to send that into the jury. Understood. I think, and just our 10 thought process there was they asked specifically for create 11 data store. 12 more. 13 Not what is a data store, which is why we included THE COURT: All right. The jury is here now. While 14 we're waiting, we've got two more jury notes. 15 propose to do is to call in the jury and give them the 16 information we have now, so we are at least current as of 17 yesterday's request. 18 morning. Then pick up the requests from this 19 MR. LAROCHE: 20 MR. ZAS: 21 Yes, your Honor. Seems to be a very inquisitive jury, your Honor. 22 THE COURT: 23 (Jury present. 24 THE COURT: 25 What I would You can't satisfy them. Time noted 9:50 a.m.) Good morning. This will bring us up to date as to the questions as of close of business yesterday SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3042 K343SCHF 1 Deliberations afternoon. 2 So, Court Exhibit 9, which we got at 3 o'clock 3 afternoon says: 4 times/formats for Schulte on 4/20/16 in a format similar to GX 5 115." 6 "Can we please have simplified badge We're going to send in an extract from Government 7 Exhibit 105. 8 and 14 of GX 105, and it's marked GX 105 Redacted, which is 9 just the entries for Mr. Schulte. 10 The extract consists of information on pages 13 That takes care of the request as of 3 o'clock. 11 We received a second request at 3:37, and your 12 foreperson was kind enough to say "for tomorrow." 13 is here. 14 two times in 2016 that Schulte left the vault last?" 15 So, tomorrow "Is there evidence that April 18 and 20 were the only As to that we're going to provide you -- we're already 16 providing you with Exhibit 105, which is in fact the records 17 for the badge records for 2016. 18 In addition, we are going to provide testimony from page 19 1099:10 through page 1100:4. 20 21 22 Question number two: So, you can check it yourself. "What does mount the Altabackups mean?" We're going to provide extracts from Mr. Weber's 23 testimony on direct, pages 254:15 to 256:15, cross-examination 24 on the same topic from page 485:9 through 487:24, and redirect 25 from page 521:10 through 522:22. And a portion of Mr. Leedom's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3043 K343SCHF 1 testimony from 950:7 to 951:12. 2 3 With regard to question number three: We're going to provide you with an excerpt from Mr. Leedom's testimony, page 985:9-17. 6 7 And four: "When someone logs out of a virtual machine, what happens to the log files from that session?" 8 9 The answer to that is there's no answer in the record. You'll have to just rely on the transcript and the testimony 10 dealing with the virtual machines. 11 we can provide you. 12 But there's no answer that That takes care of the jury notes as of last night. 13 We have two from this morning. 14 now, and you can return to your deliberations. 15 much. We're going to work on those 16 (Jury resumes deliberations. 17 THE COURT: 18 morning says: 19 testimony. 20 testimony." Thank you very Time noted 9:54 a.m.) The jury note which came in at 9:30 this "Can we have a transcript of Michael Berger's Can we also have a transcript of Michael's 21 MS. SHROFF: 22 MR. LAROCHE: 23 THE COURT: 24 MR. LAROCHE: 25 "What does create data store mean?" 4 5 Deliberations Sure, why not. That's fine, your Honor. Okay. We'll prepare it the same way as we did David's testimony with respect to objections. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3044 K343SCHF 1 Deliberations THE COURT: Okay. The next note is -- actually, the 2 next note was the first note we received this morning at 9:16. 3 "All of us feel that Ms. Thompson," that's Juror No. 4, "is not 4 respecting the process. 5 deliberations has not been participating in the group 6 discussions. 7 her own. 8 continues on her own path. 9 playing out within the group and her attitude towards the other 10 She is late every day, and during Rather she's been digging through the evidence on Even when asked to redirect her attention, she We're concerned about how this is jurors." 11 I'll show you the originals. 12 MR. LAROCHE: Any suggestions? Your Honor, we'd request a little time 13 to discuss this internally and get back to chambers very soon 14 with a position. 15 MR. ZAS: I think our request is similar. I know 16 there is a Second Circuit case where the accusation was that a 17 juror refused to deliberate or something along those lines, so 18 that might shed some light on what's tolerable and what is not. 19 THE COURT: Okay. I have a modest proposal, and that 20 is to read them again my instructions, which talks about the 21 duty to cooperate with one another. 22 whatever suggestions you have. 23 have at page 56 is your duty as jurors to consult with one 24 another and to deliberate with a view towards reaching an 25 agreement. Of course I welcome But the jury charge which you You have to decide the case for yourself. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 It goes 3045 K343SCH2 1 on from there. 2 3 Deliberations As an initial thing, that's what I would suggest. But I welcome your suggestions. 4 MR. LAROCHE: We have no objection to doing that now. 5 I think we would still go back and look at the case law, but I 6 think that is a fine approach right now, your Honor. 7 8 THE COURT: Why don't we wait. How long is it going to be? 9 MR. ZAS: Not long. I would suggest just waiting, let 10 us take a quick look at the case law and see, I mean, of course 11 the instruction is proper. 12 now. 13 THE COURT: 14 MR. ZAS: 15 THE COURT: 16 MR. LAROCHE: 17 THE COURT: 18 I'm just not sure it should be done Fair enough. No more than an hour, Judge. An hour, okay. That's fine. We'll get together at 11 o'clock then unless there is another note in the meantime. 19 MR. KAMARAJU: 20 (Recess pending verdict) 21 (Jury not present) 22 THE COURT: 23 Mr. Berger and Mr. Michael? 24 25 How long do you want? Thank you, your Honor. Okay. MR. LAROCHE: Have we sent in the testimony of Yes, we have copies of their testimony here ready, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3046 K343SCH2 1 2 Deliberations MS. SHROFF: Well, actually, your Honor, we have an issue with the -- on Mr. Berger's testimony. 3 THE COURT: 4 MS. SHROFF: What's the issue? So, your Honor, I think Mr. Berger was 5 about to be crossed on the issue of what was in the encrypted 6 folder on Mr. Schulte's drive at the house. 7 government's -- I think, it wasn't me who did the cross. 8 I'm told that the government informed Mr. Branden that should 9 he cross on that point, information about the pornography that 10 was on the encrypted file would come out. 11 didn't cross on that point. 12 13 At the So Mr. Branden Mr. Branden can speak to this issue. issue to deal with. 14 So It's not my But, so, anyway -- MR. BRANDEN: I can continue, Judge, if that's more 15 helpful. 16 a corrective measure between the government and the defense was 17 worked out so that I would ask Special Agent Evanchec -- 18 19 Ms. Shroff has very stated this accurately. MS. SHROFF: That's not what happened. So then, Government asked Evanchec. 20 MR. BRANDEN: The government asked Evanchec and we 21 asked Evanchec on cross whether there was any NDI found in the 22 encrypted portion of the computer. 23 So I didn't ask those questions of Berger because I 24 was told that that would, in the government's view, open the 25 door. So we would like to include those pages from Evanchec to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3047 K343SCH2 1 Deliberations round out the Berger testimony that -- 2 THE COURT: We have a request from the jury for 3 Mr. Berger's testimony and Michael's testimony. 4 have. 5 So, I don't propose to respond to this question by giving them 6 something they didn't ask for. 7 8 9 10 That's what we We don't have any request for somebody else's testimony. So, I'd ask that the Berger testimony and the Michael testimony be sent into the jury room. Court Exhibit 12. MR. LAROCHE: David, send it in. Mr. Laroche? I believe the parties are in agreement 11 that we would adopt your Honor's proposal of rereading the 12 specific portions of the jury charge that relates to the 13 deliberations and working together. 14 sufficient remedy. 15 We think that is a I think both parties have identified the same Second 16 Circuit cases, Thomas and Baker, and we think that would be an 17 appropriate step at this point. 18 MR. ZAS: 19 THE COURT: 20 21 Your Honor -Should I read it to them or just direct them to -- they have the instructions in the jury room. MR. ZAS: Your Honor, I think we would leave it up to 22 your Honor's discretion. Just one point. I think there might 23 be a question of the timing of this instruction. 24 any of us know for sure whether the juror referred to in the 25 note is even aware of the note. I don't think So, our concern is we don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3048 K343SCH2 Deliberations 1 want anyone to feel that they are being criticized or targeted 2 if she doesn't already know about the note. 3 So, the question is really do you do it now or do you 4 just sort of do it in a more maybe innocuous way at the end of 5 the day when you give them their instructions before going home 6 or when the next note comes. 7 It would be a little different from your normal 8 practice when you actually read them what they've asked and 9 respond. 10 We don't think that would be appropriate to actually read it, because this juror may not know -- 11 THE COURT: 12 MR. ZAS: 13 THE COURT: Right. -- that they've advised you. What's your advice or recommendation with 14 regard to reading it to them or just citing it to them at page 15 59 or whatever the page is? 16 MR. ZAS: 17 THE COURT: Your Honor -One of the complaints is this juror's 18 supposedly always late. 19 start deliberation until everybody's here. 20 MR. ZAS: I could certainly remind them we can't Yes, we have no objection that. 21 we're fine with you reading it. 22 next note that comes out. 23 THE COURT: 24 MR. ZAS: 25 MR. LAROCHE: I think But we prefer at maybe the Or at the end of the day. Or at the end of the day. That's fine. We prefer you read it as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3049 K343SCH3 1 Deliberations well, and we're fine on the timing as proposed. 2 THE COURT: 3 MR. LAROCHE: 4 Do you want just the duty to deliberate? That's what we identified, your Honor, starting on page 56 going to 57. 5 THE COURT: 6 MR. LAROCHE: 7 (Recess pending verdict) 8 (At 11:15 a.m. a note was received from the jury) 9 THE COURT: 10 marked as Court Exhibit 14. 11 All right. Thank you very much. Thank you, your Honor. We have a note from the jurors, note we "(1) Can we please have testimony from Richard 12 Evanchec. 13 1305-9. 14 (2) What testimonies covered GX 1305-8 and GX Can we please have transcripts about that." MR. KAMARAJU: Your Honor, so we'll prepare Special 15 Agent Evanchec's testimony the same way and just search for all 16 the testimony about those two exhibits. 17 18 THE COURT: Do you want me to call the jury to tell them we'll comply with their note? 19 MR. KAMARAJU: 20 it to them. 21 read the instruction. 22 23 24 25 I think we should tell them we'll give It will also give your Honor an opportunity to THE COURT: I'm going to do that at the end of the day. MS. SHROFF: the Court said. Your Honor, I'm sorry, I didn't hear what But Mr. Schulte is not here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3050 K343SCH3 Deliberations 1 THE COURT: 2 MS. SHROFF: Okay, we'll wait for Mr. Schulte. So, should we gather what they want on 3 the note and then bring them out? 4 straightforward get Mr. Evanchec's testimony and do a quick 5 search for 1305-8 and 9. 6 7 THE COURT: It seems fairly If we have Evanchec's testimony -- do we have Evanchec's testimony here? 8 MS. SHROFF: 9 THE COURT: 10 MS. SHROFF: We just have to redact the objections. So we have work to do. It won't be that long. It seems, 11 Ms. Hurst seems to be quite rapid at it, so I don't think it 12 would be more than 15 or 20 minutes. 13 THE COURT: 14 MR. ZAS: All right. It looks like those exhibits are admitted 15 through a stipulation. 16 stipulation. 17 It seems like it comes through a I'm not sure there is any testimony about it. MR. LAROCHE: Your Honor, part two, the testimony I 18 believe that covers that is Mr. Berger's, which they're 19 getting. 20 THE COURT: Mr. Berger? 21 MR. LAROCHE: Yes. That was part of his presentation. 22 We'll confirm that, but we know for a fact it's in his 23 presentation. 24 25 THE COURT: Okay. Mr. Zas, you think there is a stipulation that covers 1305-8 and 9? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3051 K343SCH3 1 Deliberations MR. ZAS: Based on our search it seems that's how it's 2 admitted into evidence. 3 referred to those particular exhibits with his slides. 4 what we are trying to figure out. 5 MR. KAMARAJU: We are just not sure if Mr. Berger He did, your Honor. That's Mr. Berger 6 testified about those particular exhibits, so they have that. 7 We'll confirm there is no other witness who talked about it. 8 Then I think that should be entirely responsive. 9 THE COURT: 10 11 MR. KAMARAJU: I'm just going to get Special Agent Evanchec's testimony so we can have it for the jury. 12 13 Okay. THE COURT: All right. now. 14 (Defendant present) 15 THE COURT: 16 We're waiting for Mr. Schulte Is it all right to call the jury in now, Ms. Shroff? 17 MS. SHROFF: If the Court wants, your Honor. 18 don't want to wait for the Evanchec testimony, sure. 19 to you. 20 THE COURT: If you It's up I'll call them now and tell them we'll 21 give them the information they want so they get back to 22 deliberating. 23 MS. SHROFF: Did the Court want to tell them you'll be 24 sending in Special Agent Evanchec's testimony and that, number 25 two, they already have the testimony of Mr. Berger? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3052 K343SCH3 Deliberations 1 THE COURT: 2 MS. SHROFF: Exactly. If there is anything more we can 3 supplement later, you don't need to hold them up if you don't 4 want. 5 THE COURT: Bring them in. 6 (Jury present. 7 THE COURT: Time noted 11:36 a.m.) We have your note of quarter after 11. 8 "Can we please have the testimony from Richard Evanchec." 9 We're preparing that testimony now and we'll send the 10 transcript in. 11 Question number two: 12 1305-8 and GX 1305-9. 13 that." 14 15 16 17 "What testimonies covered GX Can we please have transcripts about The only testimony about these two exhibit was in Mr. Berger's testimony. You already have the Berger testimony. So, that takes care of those requests. your deliberations. Thank you. 18 (Jury resumes deliberations. 19 MS. SHROFF: 20 THE COURT: 22 MS. SHROFF: 23 THE COURT: 25 Time noted 11:38 a.m.) Your Honor, is it the Court's policy not to allow them outside during the day, the jurors? 21 24 You can resume No. I haven't said anything about it. No, I didn't know. If they want to take a break, they can take a break. MS. SHROFF: I don't know. Some judges don't let them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3053 K343SCH4 1 Deliberations leave, I didn't know. 2 THE COURT: 3 MS. SHROFF: 4 THE COURT: 5 MS. SHROFF: 6 THE COURT: 7 MS. SHROFF: 8 If they want to leave, they can leave. I see, okay. It was just a question. They used to go out for smokes. What? They used to go out for smokes. That's why I was asking what your rule was. 9 THE COURT: If you want to smoke, that's okay with me. 10 MS. SHROFF: 11 THE COURT: 12 (Recess pending verdict) 13 (At 3:04 p.m. a note was received from the jury) 14 THE COURT: Okay. Thank you. Good afternoon. We have a note from the 15 jury. "One of the jurors has prior information of the 16 case/defendant that just surfaced. 17 evaluate whether that information impacts her bias? 18 during the course of deliberations and seems to be of relevance 19 to the evidence/lack of evidence." Can we please have someone It came up Signed at 2:55 p.m. 20 This will be our note what, David? 21 THE DEPUTY CLERK: 22 THE COURT: 23 MR. KAMARAJU: 15. Do the parties have any suggestions? Sorry, your Honor. 24 it over. It's a bit of a thorny one. 25 to evaluate without knowing which juror. We're just talking It's a little difficult And, yeah, what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3054 K343SCH4 Deliberations 1 information, so we want to think about what the best way to 2 discern that -- 3 MS. SHROFF: 4 MR. KAMARAJU: 5 6 We can't hear you. We are trying to think of the best way to elicit that information without intruding on deliberations. MR. ZAS: Our suggestion would be since it's fairly 7 late in the day, this might be another time when we can each go 8 back and do a little bit of research, canvass, maybe send the 9 jury home. Because there are I think, as Mr. Kamaraju said, 10 there's delicate issues about getting into the substance of 11 their deliberations. 12 breaking and letting us figure out, maybe we'll give something 13 in writing if we find any good answers to this. 14 THE COURT: 15 what juror? 16 deliberations? 17 So I think maybe caution advises maybe All right. Would it be helpful to know Or would that be a penetration of the MR. KAMARAJU: I think if the plan is to -- if we 18 adopt the plan to just send them home, your Honor, it may make 19 sense to come up with something comprehensive and address the 20 problem all at once. 21 MS. SHROFF: 22 Mr. Kamaraju, we cannot hear you so we don't know what you said. 23 MR. KAMARAJU: 24 THE COURT: 25 I apologize. He said essentially keep hands off, send them home, and discuss and research the matter further so we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3055 K343SCH4 1 Deliberations can take it up at 9 o'clock tomorrow morning. 2 MS. SHROFF: That's what we think as well, your Honor. 3 MR. KAMARAJU: Yes, your Honor. 4 our proposal at this point. 5 THE COURT: 6 MR. KAMARAJU: I think that would be So call the jurors in and send them home. Yes. And your Honor, if you want to 7 give them the instruction you mentioned before, but call them 8 back in the morning and let us at least figure out what the 9 best approach would be. 10 MR. ZAS: 11 THE COURT: 12 MS. SHROFF: 13 I think we agree with that proposal. Okay. This note may have overtaken -- Can we just have one minute to figure out if this instruction should be given? 14 MR. ZAS: I have a suggestion. Since they are not 15 going to deliberate anyway anymore today, the Court could just 16 postpone, make that decision in the morning. 17 to resume in the morning, the Court can then tell them to share 18 each other's views. 19 If they are going Our fear is any kind of instruction may cause whatever 20 this information in the new note is, we don't want that to be 21 further shared with the other jurors if it hasn't already been 22 aired. So I think the safest course is just to stop for today. 23 MR. KAMARAJU: 24 THE COURT: 25 (Jury present. That makes sense to us, your Honor. Call the jury in. Time noted 3:13 p.m.) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3056 K343SCH4 1 2 Deliberations THE COURT: We have your note which is sent at 2:55. We got it at 3:05. 3 What we're going to ask you to do, because it's 3:15 4 and you go home at 4, we are going to ask you to suspend your 5 deliberations, take an early break, and go home. 6 tomorrow morning at 9 a.m. 7 We ask all of you be punctual so we can start our 8 deliberations as close as possible to 9 o'clock. 9 to be together to deliberate. 10 and we'll have an answer to you for this question. Thank you very much and safe home. 12 (Jury excused. 13 THE COURT: 15 16 Time noted 3:14 p.m.) Thank you. What time should we get together tomorrow? MR. LAROCHE: your Honor. Whenever is convenient for the Court, We would be available whenever you want to start. 17 THE COURT: 18 MR. LAROCHE: 19 MR. ZAS: 20 MS. SHROFF: 21 THE COURT: 22 MS. SHROFF: 23 You all have So, try to be here by 9 o'clock 11 14 We'll resume We'll start a little bit before 9. Yes, your Honor. That's fine with the defense, your Honor. What time did you want us, judge? 8:30, 8:45. If the MCC can bring Mr. Schulte, that would be fine. 24 THE COURT: Marshals? 25 THE MARSHAL: I've been getting him here about 8:30 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3057 K343SCH4 1 every morning. 2 3 Deliberations MS. SHROFF: Whatever works for the Court is fine. 8:45? 4 THE COURT: 8:45 then. 5 MR. LAROCHE: That's fine, your Honor. Your Honor, we 6 might just suggest -- we don't know where tomorrow might go. 7 But it might make sense to notify potential alternates of the 8 need for them to come, so they might be available. 9 making that suggestion in terms of the notification. 10 MS. SHROFF: I am just I don't think so, your Honor. 11 should see where this goes. 12 contact between the alternates and the sitting jury. 13 14 THE COURT: MS. SHROFF: 16 nothing. 17 knows, I don't know. THE COURT: 19 MS. SHROFF: 20 THE COURT: 21 to discuss tomorrow. 22 MS. SHROFF: 23 THE COURT: 25 We told them not to have any contact, but So we don't know. I mean, I don't know. It could be Maybe they remembered reading a newspaper. 18 24 I don't know if there is any we haven't had any contact with them. 15 Who We don't know. Right. Make that part of the issues we're going Thank you, your Honor. We're not going to do anything tonight, right? MS. SHROFF: I think we No, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3058 K343SCH5 Deliberations 1 THE COURT: 2 MS. SHROFF: 3 (At 3:21 p.m. a note was received from the jury) 4 THE COURT: 5 6 Hope everybody has a nice evening. You too, your Honor. We have another note from the jury. marked it as Court Exhibit 16. We It came in at 3:16 p.m. "(1) What happened to Schulte's computers and 7 workstation after he went to Bloomberg (after November 10)? 8 (2) When and where was Rufus's SSH key found? 9 the home directory or was it found forensically?" 10 11 12 13 This came in an envelope marked "hopefully for tomorrow." MR. LAROCHE: THE COURT: 15 MR. LAROCHE: 17 Your Honor, the answer to the first question -- 14 16 Was it found in The first one is the FBI has it. Yes, the most that is in the record is the stipulation. MS. SHROFF: Well, I mean, what happened to Schulte's 18 computer -- work computer and workstation after he went to 19 Bloomberg, what does it say after -- no. 20 THE COURT: 21 MS. SHROFF: After November 10. So the answer is actually technically 22 different. After November 10, it stayed at the CIA. 23 was seized by the FBI during the course of the investigation. 24 But, what happened to it after November 10 is he left it intact 25 at the CIA. That's the answer. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And it 3059 K343SCH5 1 Deliberations In fact, that's a part of the cross, that was the one 2 recross question for Mr. Leedom. He left his workstation 3 intact, which is why they were able to see that he had deleted 4 no logs from the workstation. 5 THE COURT: 6 MS. SHROFF: Deleted no logs from the workstation. 7 MR. LAROCHE: That's not responsive, your Honor. That he had done what? 8 they are asking for is where did the computer go after 9 November 10. 10 What The only thing in the record is the stipulation that says that it was seized by the FBI in March of 2017. 11 MS. SHROFF: That would be an inaccurate answer, and I 12 think there is evidence in the record that his computer station 13 was kept intact at the CIA. 14 that means they are not just asking after he went to Bloomberg. 15 In fact, they are asking after he went to Bloomberg, 16 parentheses, after November 10, which is his last day at the 17 CIA. 18 19 THE COURT: And it says after November 10. We're not going to resolve this tonight. I understand the debate. 20 Number two, Rufus's SSH key. 21 MR. LAROCHE: There is testimony from Mr. Leedom about 22 where that was found, and we can pull that testimony. 23 there's nothing in the record. 24 MS. SHROFF: 25 So "When" We can try and get some answers for the Court in preparation for 8:45 tomorrow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3060 K343SCH5 Deliberations 1 THE COURT: 2 MS. SHROFF: Could you repeat that, Ms. Shroff? Sure. I said just to make everybody's 3 life easier, we can certainly try and work out answers for 4 court and come prepared. 5 THE COURT: 6 MS. SHROFF: 7 THE COURT: It worked out pretty well. 8 All right. I'll see you at 8:45 tomorrow morning. 9 10 The way you did last night. Yes. Hopefully better than that one. Have a good night. (Adjourned until March 5, 2020 at 8:45 a.m.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300