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Documenti di Professioni
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Plaintiffs,
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-vsETREPPID TECHNOLOGIES,
LLC., et al.,
Defendants.
:
:
: No. 3:06-CV-56-PMP(VPC)
:
3:06-CV-263-PMP(VPC)
:
: September 5, 2008
:
: Reno, Nevada
:
:
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:
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APPEARANCES:
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J. STEPHEN PEEK
Attorney at Law
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Reported by:
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COMPUTER-ASSISTED TRANSCRIPTION
---o0o---
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THE CLERK:
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Peck.
Present on behalf of the government, Gregory
Addington and Raphael Gomez.
THE COURT:
morning to everyone.
This matter, as the clerk indicated, is being held
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seized by the FBI and not returned, and contended that the FBI
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That, as I
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744.
The Court went ahead July 17, 2008, at the case
management hearing and set this matter for hearing today, and
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All right.
Is that your
agreement, sir?
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MR. ADDINGTON:
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THE COURT:
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MR. ADDINGTON:
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Thank you.
All right.
Thank you.
G E R A L D
W.
D E V O R E,
called as a witness on behalf of the Government,
was sworn and testified as follows:
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THE CLERK:
THE WITNESS:
THE CLERK:
MR. ADDINGTON:
THE COURT:
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Please be seated.
DIRECT EXAMINATION
BY MR. ADDINGTON:
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Investigation.
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Twenty-four years.
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Reno, Nevada.
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Two years.
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Los Angeles.
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returned.
Q
I was --
-- photographer.
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Other than that role that you've just described, did you
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at any time have any other role with respect to the Dennis
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Montgomery investigation?
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Mr. Montgomery?
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Yes, I did.
April returns.
Q
photos as well?
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Exhibits A through E.
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Yes, I do.
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MR. ADDINGTON:
Court.
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THE COURT:
BY MR. ADDINGTON:
Yes, sir.
I do.
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What is Exhibit D?
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Yes, it is.
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All right.
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misspoke.
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is the date?
I think I
What
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4/6/07.
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2007?
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Yes.
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Yes, it is.
Yes, it is.
Then go to the next page, and this appears to be the
That's correct.
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Of 2007?
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2007.
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Okay.
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March 29th, 2007 return of property, are those five pages all
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your handwriting?
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Yes, it is.
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Yes, it is.
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Yes, it does.
MR. ADDINGTON:
Honor.
THE COURT:
MS. GAROFALO:
MR. PEEK:
THE COURT:
D is admitted.
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Any objection?
No, your Honor.
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Yes, I did.
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Yes, I did.
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number is.
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Yes, he was.
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Do you
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this point.
Q
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room together?
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Other than the people who were there with Mr. Montgomery
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that you just mentioned, were there any other persons inside
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Yes, he did.
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transferred to him.
Q
He came in on a
And Ms. Stanton, was she at that time the head of the
office?
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agent.
Q
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people with him, when did they arrive at the facility that
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day?
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a log sheet that a copy was for the government and for
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Mr. Montgomery.
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that type, so that the items were returned, they were in good
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been seized.
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All right.
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this process?
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We agreed on
And did the other two people, the man and the woman that
Usually, when
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Mr. Montgomery?
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Approximately an hour.
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That's correct.
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Mr. Montgomery?
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We
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then Mr. Montgomery signed the receipt for it, and the item
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And then how were the materials moved out of the witness
room?
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I think we actually
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witness room?
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No, I don't.
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Yes, I have.
Yes.
That's correct.
Yes, I do.
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'07, by you?
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Yes, March 27, '09 [sic], and then I believe the last --
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1 through 120 were the ones on the 29th, and then starting
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with Photograph 121 through 135 are the ones taken on the
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06 -- April 6th --
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MR. ADDINGTON:
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THE COURT:
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MS. GAROFALO:
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MR. PEEK:
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THE COURT:
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Right.
Any objection?
No objection, your Honor.
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BY MR. ADDINGTON:
Q
We're
going to put aside the first page which is the April 6th log;
is that correct?
That's correct.
And look at the five pages that comprise the March 29th
log.
correct?
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That's correct.
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Exhibit D?
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That's correct.
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We were setting the camera up, I believe it was the first time
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log?
Yes.
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of an item --
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All right.
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E?
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Yes, it does.
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Yes, it does.
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Yes, it does.
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Okay.
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something was missing from the items that were being returned?
No.
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to you that anyone believed items were missing from what was
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being returned?
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No.
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them.
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Okay.
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Yes, I do.
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depicted --
Yes.
-- on 83?
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complaining about.
Q
Okay.
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materials?
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Not to my recollection.
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that they believed that items were being returned that were
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more CDs than we had listed on the seizure, and when we went
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cases, in the CD holders, there were two CDs rather than one,
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the number of packets and places to put CDs and assumed there
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Mr. Montgomery.
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seized?
A
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MR. ADDINGTON:
THE COURT:
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Thank you.
Ms. Garofalo.
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Thank you,
your Honor.
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Nothing further.
CROSS-EXAMINATION
BY MS. GAROFALO:
Q
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correct?
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if you recall?
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No.
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Okay.
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Okay.
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I could go back
No, I don't.
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Okay.
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Not in my presence.
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Okay.
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That's correct.
Okay.
Yes, it is.
Okay.
correct?
That's correct.
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Okay.
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regard?
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No.
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Okay.
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correct?
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That's correct.
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That's correct.
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But You don't know what information was on the CDs or the
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hard drives.
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the CDs as returned was intact from the CDs at the time they
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That's correct.
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Okay.
No.
that correct?
That's correct.
Okay.
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MS. GAROFALO:
Okay.
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I'm sorry these are somewhat out of order because of the order
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THE COURT:
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You may.
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to Mr. Gunderson.
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So I apologize.
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THE COURT:
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MS. PECK:
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FedEx is trying to
I will give Mr. Peek a
Thank you.
And, Ms. Garofalo, that would be me
as well?
MS. GAROFALO:
out.
BY MS. GAROFALO:
Yes.
represent to you that these are still photos taken from videos
room.
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Yes, it is.
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a -- some kind of -A
Okay.
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see that?
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Yes, I do.
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Okay.
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Do you
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Okay.
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I'll show you another, but whatever was in the casing seems to
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be missing.
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THE COURT:
on, Ms. Garofalo?
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MS. GAROFALO:
your Honor.
THE COURT:
THE WITNESS:
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BY MS. GAROFALO:
Q
Okay.
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Okay.
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It appears to be.
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Okay.
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That's correct.
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Okay.
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Okay.
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to the hard drive that had been in that container at the time
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of the return?
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MR. ADDINGTON:
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MS. GAROFALO:
recollection of a --
THE WITNESS:
MS. GAROFALO:
empty --
THE WITNESS:
No, I have no --
MS. GAROFALO:
-- container.
THE COURT:
Everybody stop.
So that we have an
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a time.
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objection is overruled.
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BY MS. GAROFALO:
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Okay.
The
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Okay.
Okay.
conversations --
No.
No.
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-- Mr. Pulver?
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No, no.
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I was not --
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That's
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It is.
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-- Agent Devore?
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Yes.
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Okay.
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SA Mark Thomas.
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Yes.
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Okay.
but can you tell what Agent Thomas has in front of him?
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Okay.
know?
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Okay.
If you look at
They were in
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them.
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Okay.
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Okay.
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agent whether they were that way when they were seized.
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All right.
In a box --
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Okay.
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box?
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that --
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Based on --
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THE COURT:
Stop again.
Okay.
Stop.
inaccurate record.
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Thank you.
Go ahead.
BY MS. GAROFALO:
Q
You don't know for a fact whether or not that box had
been marked.
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That's correct.
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Okay.
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of that box?
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other than the hard drives in this box, in envelopes with the
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Okay.
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MR. ADDINGTON:
If he
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rephrased.
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MS. GAROFALO:
BY MS. GAROFALO:
Q
That --
correct?
That's correct.
Were these the only items that were not presented the day
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Okay.
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That's correct.
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Is that correct?
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That --
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That's correct.
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as the front of two CDs and the backs, which Mr. Montgomery
Devore?
Yes, I do.
And like the other CDs, did anybody in the room at the
time of the return test them to see if the CDs were still
readable?
No.
Okay.
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those CDs were damaged to the point where they were not
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That's correct.
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Okay.
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correct?
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That's correct.
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Okay.
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Okay.
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That's correct.
MS. GAROFALO:
THE COURT:
Mr. Addington?
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Thank you.
REDIRECT EXAMINATION
BY MR. ADDINGTON:
Q
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Is that
your recollection?
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The
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It says page 4 of 5
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Yes.
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Yes, I do.
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That's correct.
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Thirteen CDs.
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Sixteen CDs.
110?
Three CDs.
That's correct.
Sixteen -- 78 CDs.
correct?
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That's correct.
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No.
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All right.
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please.
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That's correct.
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That's correct.
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That's correct.
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is two.
Q
That
That's correct.
Yes.
Fifty-eight --
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That is correct.
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That is correct.
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MR. ADDINGTON:
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THE COURT:
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MS. GAROFALO:
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THE COURT:
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Anything on recross?
Nothing further, your Honor.
All right.
step down.
THE WITNESS:
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Thank you.
(Witness excused.)
THE COURT:
witness, please.
MR. ADDINGTON:
M A R K
A.
T H O M A S,
called as a witness on behalf of the Government,
was sworn and testified as follows:
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THE CLERK:
record.
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THE WITNESS:
Thomas, T-h-o-m-a-s.
THE CLERK:
Thank you.
THE COURT:
Please proceed.
MR. ADDINGTON:
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DIRECT EXAMINATION
BY MR. ADDINGTON:
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Miami, Florida.
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station?
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Yes, sir.
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And how did those duties come to you rather than somebody
else?
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approximately?
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of 2007 approximately.
Q
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in March of 2007?
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Yes, sir.
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The smaller
Would you
Yes, sir.
Yes, sir.
What is it?
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Do they -- do
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those four pages, the first four pages, all bear the date
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Yes.
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Yes, it does.
Look at the last page of Exhibit C.
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Yes, sir.
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Yes, sir.
of Exhibit C?
Yes, sir.
Yes, sir.
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Yes, sir.
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MR. ADDINGTON:
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THE COURT:
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MS. GAROFALO:
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MR. PEEK:
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THE COURT:
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Any objection?
No objection, your Honor.
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THE COURT:
Thank you.
BY MR. ADDINGTON:
Q
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the March 29th record, can you tell me how long this process
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I know it was
Yes, sir.
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Yes, sir.
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Yes, sir.
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Yes, sir.
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I introduced
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Mr. Montgomery.
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recollection, one of the bays had a hard drive, yet the second
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bay didn't have one, and I believe they were saying there were
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on it, and removed the hard drive or -- showed them the hard
drive.
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there?
Correct.
demonstration?
Yes.
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'07.
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That's correct.
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Yes, sir.
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And did you take any breaks in the meantime, break for
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and got some coffee, may have gotten some doughnuts, but we
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did with respect to each item as it came through the room and
moved to Mr. Montgomery's possession.
A
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retrieved items out of the evidence room, bring them in, and
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Mr. Montgomery and Mr. Pulver, and Mr. Devore then would
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photograph said items after them being taken out of the boxes
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Okay.
brought them into our interview room and in the order that I
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That is correct.
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to items seized.
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of returning?
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those materials?
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MS. GAROFALO:
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THE COURT:
Overruled.
Go ahead.
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BY MR. ADDINGTON:
Q
did you have with you the inventories prepared by FBI of the
Yes, sir.
Yes, sir.
What is Exhibit A?
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2006.
Q
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MS. GAROFALO:
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MR. ADDINGTON:
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MS. GAROFALO:
He identified it as a generic
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list.
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not know what the list was or, indeed, has not testified when
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BY MR. ADDINGTON:
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storage units.
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Yes, sir.
Yes, sir.
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THE COURT:
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MR. ADDINGTON:
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THE COURT:
Thank you.
BY MR. ADDINGTON:
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Yes, sir.
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Yes, sir.
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What is it?
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Go
ahead.
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And is it the return that was part of the filing with the
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court for the return of that warrant that was executed at that
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storage unit?
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Yes, sir, and so was the previous, and that's where I got
previously admitted.
THE COURT:
MS. GAROFALO:
MR. PEEK:
THE COURT:
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Any objection?
No, your Honor.
BY MR. ADDINGTON:
Q
So, Agent Thomas, you had A and B with you at the time
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during the property return was to comply with the court order
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returning all items seized from both searches, and that was
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searches.
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they were happy with what -- that we had complied with the
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court order.
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correct?
Yes, sir.
there.
to Exhibit F.
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Yes, sir.
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Number 65.
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Yes, sir.
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MR. ADDINGTON:
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THE COURT:
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MS. GAROFALO:
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MR. PEEK:
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THE COURT:
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Any objection?
No objection, your Honor.
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BY MR. ADDINGTON:
Q
photographs, correct?
Yes, sir.
Buckthorne residence?
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Yes, sir.
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Yes, sir.
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Yes, these are all photos taken from the search of the
residence.
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MR. ADDINGTON:
Honor.
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THE COURT:
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MS. GAROFALO:
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MR. PEEK:
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THE COURT:
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Any objection?
No objection.
No objection.
G is admitted.
that the official exhibit that the witness has also contains
BY MR. ADDINGTON:
Yes, sir.
Yes.
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Exhibit C?
A
aluminum Li tower.
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Yes, sir.
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no serial number.
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and I also listed our evidence bar code number and -- yeah,
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That is correct.
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Okay.
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That's correct.
the drive.
Q
Is that the
number that begins with the letter E and ends with the numbers
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That is correct.
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Yes, it does.
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labeled 002.
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Yes, sir.
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Exhibit C?
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Yes.
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-- of Exhibit E?
Yes, sir.
Yes, sir.
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What
That photo depicts the same CPU tower with the floppy
Was that the hard drive that was removed from that tower?
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Yes.
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number 3?
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Yes, it does.
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at it.
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Okay.
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Number 7 shows the back of the same CPU tower that was
returned to Mr. Montgomery and the one with the clear side.
Q
And can you describe again how this issue was resolved
Yes.
Yes, sir.
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the room, the -- there's two bay slots in the tower, one of
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tower itself, and that's when Mr. West came in and took off
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Mr. Montgomery?
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Yes, sir.
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Yes, sir.
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office.
Q
Exhibit C?
It's the bottom CPU tower that's labeled Dennis Home with
same date, and you can see the yellow floppy disk in the 3.5
floppy slot.
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Yes, sir.
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it.
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can be placed.
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Yes, it is.
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Okay.
Thank you.
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Go to item 2 on Exhibit C.
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All right.
Yes.
Yes, sir.
Yes, it does.
All right.
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Yes, it does.
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C?
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Yes, it is.
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Yes.
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THE COURT:
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MR. ADDINGTON:
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BY MR. ADDINGTON:
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here it is.
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1
2
number 9 of Exhibit E?
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Exhibit E?
A
Yes, and that's just the bottom, and it shows the serial
number.
Q
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Yes, sir.
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Yes, it does.
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Yes, it does.
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Yes, it is.
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Yes, sir.
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here?
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A storage tower.
Yes, two.
And did you record the serial number for the -- for the
Yes, I did.
That is correct.
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Yes, it does.
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same item?
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And if you go to the next page, do you see the next item
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Yes, I do.
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1
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4
5
6
7
tower.
Q
item 3?
10
11
12
correct?
13
That is correct.
14
15
16
Yes, sir.
17
18
19
20
21
22
connections.
Q
23
Yes.
24
25
Yes, sir.
1
2
Is that the
Yes, sir.
Let
Okay.
10
Yes, it does.
11
12
Yes, it is.
13
14
time of the seizure, can you see whether there are two hard
15
16
Yes, on the top and the bottom they have the plastic
17
18
you're able to see the label sections where the serial numbers
19
20
21
photograph 46, Exhibit G, can you state whether there were two
22
23
seizure.
24
25
Yes, sir.
1
2
Yes, it is.
Yes, sir.
as item 4.
10
11
Yes.
12
13
That is correct.
14
15
That is correct.
16
17
18
19
20
Exhibit A?
21
Yes, it does.
22
23
24
25
1
2
Okay.
Yes, it is.
Yes, I can.
And the photographs that follow, 21, 22, 23 and 24, are
10
those the same -- are those pictures of the same item, item
11
number 4 of Exhibit C?
12
13
14
15
16
First
17
plastic carriers have been pulled off to show that there's two
18
19
20
21
22
23
24
25
Yes, sir.
10
Yes, sir.
11
12
13
seizure?
14
Yes.
15
see through the slots, the white labeling of the hard drives
16
17
forth.
18
19
20
Yes, sir.
21
Go to item 5 of Exhibit C.
22
23
24
25
Yes, sir.
right?
That is correct.
8
9
Yes, sir.
10
items seized, and since that item was derived from item seized
11
12
13
forensic copy?
14
15
16
you tell me whether that is the forensic copy that was made as
17
18
19
20
item 5 of Exhibit C?
21
Yes, it is.
22
23
24
25
That is correct.
1
2
the HP Pavilion?
Yes.
from?
No.
drives that we had imaged, and that they had not been reviewed
10
11
the court, and they were identical copies of items taken from
12
his residence.
13
14
that explanation?
15
16
17
given to Mr. Montgomery on that date but which had not been
18
19
That is correct.
20
21
22
All right.
23
24
Mr. Montgomery.
25
forensic copy of a hard drive that we, the FBI, had made as a
3
4
And the language that you use there, derived from custom
Exhibit C?
Yes.
10
11
12
That is correct.
13
14
15
16
Yes.
17
18
Mr. Montgomery but which had not been physically seized from
19
20
21
22
23
All right.
24
Yes, sir.
25
item 7?
Yes, I did.
Yes.
10
11
12
in Exhibit C?
13
Yes.
14
15
16
17
18
19
20
numbers.
Q
21
Yes.
22
23
24
25
Exhibit F?
Okay.
6
7
8
10
Yes, sir.
11
12
13
14
15
Yes.
16
17
18
19
20
Yes.
21
22
23
24
25
What
item 8?
Yes, I did.
Yes, sir.
10
Good.
11
12
Yes, sir.
13
And are they all from the same manufacturers or are they
14
15
16
17
18
Different manufacturers.
19
20
21
item 10 of Exhibit B?
22
Yes.
23
24
25
Yes, sir.
as item 8 of Exhibit C?
photograph?
Yes, sir.
10
11
That is correct.
12
13
47 through --
14
15
16
17
18
Yes, sir.
19
20
are they?
21
22
23
No.
24
25
packages.
Q
If they
sealed packages.
photograph show?
7
8
9
drives in there.
Q
10
11
12
Yes.
13
And --
14
15
16
storage unit?
17
Yes.
18
19
20
Absolutely not.
21
22
23
24
25
Exhibit F.
A
Yes.
that photograph?
Yes.
10
11
12
13
Mr. Montgomery?
14
15
16
17
Yes, sir.
18
19
Yes, sir.
20
Go to number 9.
21
Yes, sir.
22
MR. ADDINGTON:
23
24
25
THE COURT:
MS. GAROFALO:
10
11
12
13
14
MR. ADDINGTON:
15
16
17
18
19
20
That
21
22
23
24
25
motion sought.
THE COURT:
Ms. Garofalo.
MS. GAROFALO:
10
11
12
13
14
15
16
17
THE COURT:
All right.
18
19
466.
20
line 5, "Some forms of" -- well, let me just read the entire
21
22
23
24
is enormous.
25
available.
FBI.
10
11
12
13
14
FBI."
15
16
17
18
19
20
21
22
a period of time.
23
24
25
to be produced.
10
11
12
13
14
items.
15
16
17
18
19
20
THE COURT:
Okay.
There are
21
22
23
FBI."
24
25
MS. GAROFALO:
THE COURT:
All right.
MS. GAROFALO:
THE COURT:
All right.
10
11
12
13
14
MS. GAROFALO:
15
THE COURT:
16
17
Okay.
Paragraph 10 of his
declaration, he says,
"On information and belief, it appears clear
18
19
20
21
22
23
24
25
This
Without knowing
MS. GAROFALO:
10
have, your Honor, is still with the CDs, and when we get to
11
examine Agent Thompson [sic] and Agent West, the Court will
12
13
forth.
14
15
16
access, who may have copied, who may have taken information,
17
18
19
20
21
22
THE COURT:
All right.
23
you.
24
25
just --
MS. GAROFALO:
THE COURT:
As to the --
MS. GAROFALO:
copied or taken off CDs and hard drives that has not been
10
11
12
THE COURT:
All right.
13
MS. GAROFALO:
14
15
THE COURT:
16
MS. GAROFALO:
17
THE COURT:
18
19
All right.
-- were returned.
All right.
So I understand.
All
right.
So I guess, Mr. Addington, your view is that in
20
21
22
23
24
these items with those who had control, who were present
25
you're saying?
MR. ADDINGTON:
Is that what
that material into FBI custody that Agent West will primarily
10
11
THE COURT:
will take?
12
MR. ADDINGTON:
13
through 8.
There's 21 more.
14
15
16
the CDs, although I'm not getting the sense that the CDs are
17
18
materials.
So --
19
THE COURT:
20
MR. ADDINGTON:
21
24
25
22
23
All right.
THE COURT:
on after that?
MR. ADDINGTON:
process, that that did not alter or destroy any data, and that
destroyed.
10
11
12
13
14
15
of custody.
16
THE COURT:
17
MR. ADDINGTON:
18
THE COURT:
Anyone else?
That's all.
19
20
21
22
23
24
25
That's fine.
That's fine.
recess.
discuss some ideas they might have about how you can expedite
the hearing and cut to the heart of the issues the parties
10
11
12
13
14
one o'clock.
15
16
17
Thank you.
18
THE COURT:
19
20
proceeding?
21
22
MR. ADDINGTON:
23
24
25
2
3
THE COURT:
your understanding?
4
5
All right.
MS. GAROFALO:
THE COURT:
10
11
12
MR. PEEK:
All right.
Mr. Peek?
13
14
15
16
17
pleading --
18
THE COURT:
19
MR. PEEK:
20
23
24
25
21
22
THE COURT:
proceeding?
MR. PEEK:
MR. PEEK:
THE COURT:
anything.
MR. PEEK:
pleading, your Honor.
6
7
16
THE CLERK:
MR. PEEK:
ahead, sir.
14
15
warrant case.
12
13
TRO.
10
11
8
9
All right.
I've got --
4
5
MR. PEEK:
your Honor.
On page 3 of that motion, and I'll -- the sentence
17
18
19
20
21
22
23
24
25
The motion is
Montgomery."
6
7
8
9
It
10
11
12
THE COURT:
Ms. Garofalo?
13
MS. GAROFALO:
14
and Mr. Peek just said, that particular document was filed by
15
Mr. Flynn.
16
17
18
19
20
21
22
23
24
25
MR. PEEK:
were planted by Mr. Trepp with the FBI and United States
THE COURT:
Right.
issue.
appears.
10
11
12
13
14
15
have the entire file, the attorney file, the client file, my
16
17
pleadings and the papers that have been filed, but, more
18
19
20
21
22
23
24
25
1
2
MS. GAROFALO:
THE COURT:
MS. GAROFALO:
8
9
10
11
12
the two forensic copies that were made, between the number of
13
14
15
16
17
THE COURT:
All right.
18
19
the noon hour at the paper that you've mentioned, and we'll
20
21
MR. PEEK:
22
THE COURT:
All right?
23
All right.
24
25
camping here for the evening until this case was -- this
4
5
MR. GOMEZ:
THE COURT:
I know, sir.
MR. GOMEZ:
If it's necessary.
THE COURT:
MS. GAROFALO:
10
11
12
13
before 5:00.
14
15
THE COURT:
20
Well, I
17
19
16
18
Sure.
MR. ADDINGTON:
BY MR. ADDINGTON:
Q
Exhibit C, correct?
21
Yes, sir.
22
23
24
25
correct?
3
4
5
6
Correct.
Yes, sir.
9
10
11
12
Yes.
13
14
15
16
Mr. Montgomery?
17
18
19
DVDs or CDs, except for when it got to the end when the number
20
21
22
23
24
25
1
2
I have, sir.
Yes, I have.
Yes, I have.
correct?
10
Yes, sir.
11
12
you satisfied today that all of those items represent and are
13
14
Mr. Montgomery?
15
Yes, sir.
16
17
from the evidence room to the witness room where this return
18
19
Yes, sir.
20
21
22
23
24
25
1
2
3
other than when we seized them, I did not handle the items.
Q
9
10
11
All right.
Yes.
12
13
14
item.
15
16
17
That is correct.
18
19
20
21
22
many items.
23
24
they were seized to the FBI facility, did any other person
25
1
2
That is correct.
Another agency?
Yes, and she is a CART agent, which they are the ones who
9
10
11
12
That is correct.
13
14
MR. ADDINGTON:
15
THE COURT:
16
MR. PEEK:
All right.
Your Honor, before Mrs. Garofalo
17
18
planting?
19
20
21
22
23
24
THE COURT:
You may.
25
We
1
2
CROSS-EXAMINATION
BY MS. GAROFALO:
Good morning.
is that correct?
10
11
12
13
for them?
A
procedure.
Q
Okay.
14
the Montgomery home and storage unit in March 2006, had you
15
16
17
it cover to cover.
18
19
Okay.
20
21
correct?
22
23
24
25
is that correct?
A
control room?
stated in there.
is that correct?
10
That is correct.
11
Okay.
12
13
14
Okay.
15
16
17
18
19
searched?
A
I don't recall.
storage unit?
20
21
22
Yes.
23
24
I believe so.
25
was more than one unit, but I know we seized items from the
units.
MS. GAROFALO:
8
9
Honor?
10
11
THE COURT:
You may.
BY MS. GAROFALO:
12
13
14
15
16
17
MR. ADDINGTON:
of what she's referring to.
18
19
20
Thank you.
BY MS. GAROFALO:
Q
21
22
23
24
25
Yes.
Okay.
else did.
6
7
Okay.
Yes, ma'am.
10
11
12
13
14
Diamond.
15
16
Is that the
Okay.
number 136 reflect that any items were seized from that unit?
17
18
Okay.
19
also on the line that says, Name, unit 140, and this appears
20
21
That is correct.
22
23
Mr. Montgomery?
24
Yes.
25
Okay.
Okay.
correct?
That is correct.
9
10
11
units, did you check these inventories against the items that
were actually seized?
A
12
question.
13
14
Correct.
15
16
drives and so forth when we were doing the search and seizing,
17
18
Okay.
19
20
21
Yes, ma'am.
22
And were any items located and seized from that unit?
23
No, ma'am.
24
25
I am.
No, ma'am.
Okay.
there's one more page, 143, the final page, nothing was seized
No, ma'am.
10
Okay.
11
that relates to unit 140, and look down at item number 11.
12
Do
13
Yes, ma'am.
14
Okay.
15
16
17
18
19
20
21
22
23
computer material.
No.
I don't recall.
24
25
1
2
3
4
5
As you sit here today, you don't recall seeing any floppy
I know I saw
Yes.
Okay.
10
11
12
MR. PEEK:
13
MS. GAROFALO:
14
THE WITNESS:
15
18
19
Thomas.
Thomas.
It's Thomas, ma'am, just for the
record.
16
17
Do you want
Okay.
20
21
Okay.
22
23
not?
24
MR. PEEK:
Unit 140.
25
MS. GAROFALO:
140.
THE WITNESS:
BY MS. GAROFALO:
Okay.
correct?
8
9
items seized.
10
Right.
11
12
Correct.
13
Okay.
14
15
16
17
18
It may be worded
differently or something.
19
20
21
22
23
24
25
I don't recall
Go down to item
number 11.
Yes, ma'am.
That is correct.
10
11
42.
12
13
Okay.
14
15
16
17
18
No, I do not.
19
20
21
22
23
floppy disks that had been seized and entered onto the search
24
25
floppy disks at the storage unit the night the search warrants
were executed?
8
9
at all?
A
No.
10
11
12
13
14
correct?
15
That is correct.
16
17
Mr. Montgomery?
18
19
20
I don't recall.
21
22
23
24
is that correct?
25
return.
correct?
7
8
9
We had no -- whatever
10
returned, they would have been entered onto the receipt for
11
returned items that you prepared at the time the items were
12
13
14
15
16
17
18
19
Exhibit C, to see if you see any floppy disks, other than the
20
21
Mr. Montgomery.
22
23
Now, after the items were taken from storage unit number
24
25
Excuse me.
o'clock.
Thank you.
And, Mr. Peek, please get that docket number, sir.
MR. PEEK:
THE COURT:
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
---o0o---
3
4
THE COURT:
THE CLERK:
present.
8
9
10
11
12
THE COURT:
Thank you.
Speaking off the record with Mr. Peek and your court
13
14
15
16
THE COURT:
17
MR. SUNSHINE:
I understand
Right.
For the record, Mr. Peek and I
18
19
20
THE COURT:
All right.
Well, I, of course,
21
22
23
24
MR. SUNSHINE:
25
THE COURT:
That's correct.
position.
10
11
MS. DARBY:
12
THE COURT:
All right.
So I guess my question
13
14
15
16
out with these other parties, and why that would be a good
17
idea.
18
19
20
21
22
23
24
25
that the dispute between our clients is the dog wagging the
tail.
THE COURT:
MR. PEEK:
All right.
And, your Honor, I would concur in
that, and I think the Court well knows from its own experience
settle and some will, and the case moves on or it doesn't move
10
on.
11
12
think -- you know, this is a case that has been filed since
13
14
15
16
17
18
19
20
well served if the Court would conduct that mediation with us.
21
22
MR. SUNSHINE:
23
24
25
case.
THE COURT:
THE CLERK:
MR. PEEK:
10
THE COURT:
11
12
13
14
MR. PEEK:
15
16
17
THE COURT:
I'm
All right.
18
19
obviously.
20
21
22
23
MR. GOMEZ:
24
25
7
8
THE COURT:
All right.
MR. GOMEZ:
Yes.
10
THE COURT:
All right.
11
12
13
14
15
so I can be flexible.
16
I fly
17
18
19
MR. PEEK:
20
THE COURT:
I don't
21
22
23
24
25
Fry here, but I really don't think so, your Honor, his
THE COURT:
MR. PEEK:
All right.
Mr. Trepp says no, it will just be
MR. SUNSHINE:
15th.
I can't --
THE COURT:
I mean, if
10
11
12
13
14
the dates of Monday, the 15th, Tuesday, the 16th, and the
15
16
17
18
19
Everyone is present or we
20
21
MR. SUNSHINE:
thank you.
22
THE COURT:
All right.
23
you to do, when can you know about Ms. Blixeth's availability
24
on the 15th?
25
MR. SUNSHINE:
By Monday.
THE COURT:
All right.
then I'll just put by separate minute order, Ms. Clerk, we'll
calendar.
10
11
12
13
14
MR. SUNSHINE:
All right.
15
16
17
18
19
20
All right.
21
22
23
24
25
THE COURT:
All right.
MR. GOMEZ:
Yes.
THE COURT:
available, and can you propose a date by which you can let the
Court know.
MR. GOMEZ:
10
THE COURT:
All right.
11
12
13
14
15
extent counsel for the parties and the litigation wish them to
16
be present.
17
18
conference.
19
20
21
Very good.
22
All right.
23
The next issue, just over the noon hour I did review
24
docket 126.
25
1
2
thoroughly.
But what I'm going to do is defer -- Mr. Peek, do
10
11
MR. PEEK:
12
13
14
THE COURT:
15
MS. GAROFALO:
16
THE COURT:
17
18
19
20
21
22
23
MR. GOMEZ:
THE COURT:
Yes.
your Honor.
24
some point advise us whether you have any concerns, and then
25
MR. PEEK:
THE COURT:
MR. PEEK:
10
respect to planting.
11
12
15
16
THE COURT:
13
14
Well --
THE COURT:
Ms. Garofalo?
17
MS. GAROFALO:
18
THE COURT:
19
All right.
MS. GAROFALO:
21
THE COURT:
22
We are.
23
25
So are we ready to
proceed?
20
24
CROSS-EXAMINATION RESUMED
BY MS. GAROFALO:
Q
the one who prepared the inventory list at the time of the
search.
that correct?
Is
Correct, ma'am.
Yes, I have.
Okay.
9
10
11
12
13
14
15
recollection?
A
16
17
18
19
We had support personnel there that are our evidence team for
20
21
22
at least one DEA agent and a task force member of the DEA came
23
24
25
Okay.
3
4
Correct.
I -- I -- I can, yes.
Can you just rattle off the names of those agents you
8
9
recall.
A
10
11
12
13
think Special Agent Anna Brewer was there, but I can't recall
14
15
16
17
18
March 3rd?
19
I want to say
20
one or two people that were at one were not at the other.
21
22
23
24
25
Okay.
No, ma'am.
8
9
10
split into search teams, then you have the teams that are, you
11
12
13
14
15
16
17
18
19
20
21
actually noted.
22
23
24
25
Do you know how it was done in this case, how Agent West
1
2
logs?
10
11
12
13
14
15
That's more of a
16
17
18
19
20
21
the office.
22
23
24
25
1
2
3
4
5
6
7
10
11
12
13
14
15
16
the court.
17
18
19
20
court?
21
22
23
24
25
Okay.
That's more
that vein about the search of the storage locker number 140.
Yes, ma'am.
5
6
10
11
12
was.
13
14
15
the paperwork would have been done describing the evidence and
16
17
18
19
seized?
20
21
22
23
24
25
offices?
Yes, ma'am.
Okay.
7
8
9
Yes.
10
11
12
Okay.
13
14
15
16
17
which generate the first page here, the FD192, this is the
18
typed version of the draft version of the FD192, and the third
19
20
21
22
25
23
24
Okay.
Yes, ma'am.
Okay.
Do
Yes.
Okay.
I'm not sure if that's the date it was entered into our
9
10
11
12
I'd ask you to turn to the third page which at the top
13
Yes.
14
15
16
17
18
Okay.
19
of the seizure, which was March 3rd, and the date it was
20
21
22
23
this.
24
25
1
2
3
control room?
10
11
12
13
I don't
recall.
Q
Okay.
14
15
16
testimony?
17
Is that your
18
19
office, no.
20
21
Okay.
22
23
Okay.
24
25
way secured?
A
No.
1
2
Did you ever discuss with Agent West why this evidence
5
6
No.
the evidence techs and then placed into our evidence room.
9
10
11
12
13
14
Okay.
15
Okay.
16
Agent Thomas?
17
18
Okay.
19
20
what is that?
21
22
23
24
25
between the time of the seizure and the time that evidence is
room?
No.
8
9
No.
10
11
12
13
Why this one took one day and the storage unit took
14
longer, I can't recall if that was a Friday and there was the
15
16
specific recollection.
17
18
19
20
21
22
23
24
25
1
2
Okay.
four days later that it gets into the evidence room, somebody
warrants?
8
9
10
the Court, and that's -- we try to do that within the next day
11
12
13
14
simply copied the original list that was prepared during the
15
16
17
18
19
And it's not your experience that anything has ever been
20
21
22
23
speaking.
24
25
at the scene.
Okay.
10
11
12
Exhibit 42?
A
13
Correct.
14
15
16
17
18
19
20
21
22
Is
23
24
25
March 7th?
6
7
I don't know.
Okay.
The only thing I can say is I know the items were placed
10
11
by our agency.
12
Okay.
13
Fair enough.
Just briefly, in the large book, if you would just
14
15
16
17
18
19
20
21
Just confirm
Okay.
And those are all FD192 forms for items taken from
22
Correct.
23
Okay.
24
25
storage unit number 140 were also not checked into the
Okay.
Okay.
And Exhibit 28 --
Yes, 28.
Okay.
So
10
11
correct?
12
That is correct.
13
14
15
16
Yes, ma'am.
17
18
48.
19
Yes, ma'am.
20
21
22
23
think I was.
I
I
24
Okay.
25
1
2
3
4
5
6
7
8
9
a safe.
Q
Okay.
I couldn't
search, recall.
Whether it was
10
11
12
13
14
institution.
15
16
17
18
19
Okay.
20
No.
21
Okay.
22
23
the search?
A
24
25
passports.
1
2
3
Okay.
That's correct.
Okay.
6
7
10
Okay.
11
12
13
14
Excuse me.
15
comparing this photo to the items seized, and, yes, all these
16
17
18
Okay.
binder Mr. Addington gave you, where those CDs are identified.
19
20
21
Yes.
22
23
24
25
How do they correspond other than the fact that there are
15?
Okay.
10
11
correct?
12
That is correct.
13
Okay.
14
same exhibit.
15
Yes, ma'am.
16
And if you look at this, you can see the -- parts of the
17
cash, the bills that are laying out that we see on the
18
19
Correct.
20
21
Yes.
22
23
24
25
these photos.
Q
Is --
7
8
10
11
that?
12
Yes, ma'am.
13
14
15
MR. PEEK:
16
MS. GAROFALO:
17
THE WITNESS:
18
19
BY MS. GAROFALO:
Q
20
Do you have any idea as you sit here today how the
21
22
number 52 which you just testified was the same group of CDs
23
photographed in 48?
24
25
about.
Okay.
home?
4
5
6
recall.
Q
inventory list that tells you which specific CDs are being
10
11
12
13
Okay.
14
15
the return?
16
Yes, ma'am.
17
Okay.
18
19
20
showing the items that were actually taken from the site,
21
correct?
22
23
24
25
these CDs that I can tell that Warren's Old E-mails was
photographs?
6
7
8
9
10
11
see if you can find anything that reflects that these CDs
12
13
14
No, I do not.
15
16
17
return inventory.
18
Yes, ma'am.
19
20
21
22
23
24
25
long process from being even longer, most of the CDs were just
1
2
photos, time to compare the property list and FD192s, but, no,
8
9
10
11
12
13
14
15
16
How can you compare the FD192s with photos and determine
You compare the photos, you compare the CDs, and you
And you compare the photos of the titles that you can see
Okay.
17
18
19
Yes, and your client and Mr. Pulver were there when we
20
21
22
23
and crossed out and wrote 16 due to one of the CDs being
24
25
on the return.
Okay.
correct?
Yes.
Okay.
were double CDs during the search or during the period of time
in which the seized items were prepared for the inventory log
10
11
Mr. Pulver and Mr. Montgomery, when I counted 15, until it was
12
13
14
15
16
17
18
It's --
Well, that was the first time it was noted there was a
double stack.
Q
19
20
21
22
23
24
Yes.
25
Do you
1
2
3
4
You could see him walk out of -- you could see him walk
Okay.
Okay.
10
11
car or vehicle or -Q
Okay.
12
13
basis?
14
As I said, no.
15
saw him walk out to the hallway, and heard conversation about
16
17
Okay.
18
the items out to the hallway and leaving them in the hallway
19
20
21
22
23
out he was putting items in the hallway and you made him bring
24
25
I can't recall
1
2
Okay.
hallway and you made him and Mr. Pulver bring them back into
the room?
I can't
10
11
12
I don't
13
14
are at.
15
Understandably.
16
17
18
19
20
21
22
be frank here, the lies put forth before the Court of our
23
24
25
1
2
3
unusual, correct?
Correct.
6
7
8
9
an unsecured area.
Q
10
11
back in.
12
13
in.
14
15
16
17
No.
I don't
18
reviewed my 302 from the search return, and that was not noted
19
20
21
22
23
24
25
I don't know.
1
2
Yes, ma'am.
Okay.
7
8
10
11
12
13
14
15
Okay.
16
17
18
19
Okay.
20
21
22
23
He said he had --
24
He was upset.
25
correct?
Correct.
that's how that one, two, three line wording came about was
10
11
12
footage.
13
14
Mr. West.
15
16
17
18
19
20
Do you know of any other photos that exist that were not
returned?
A
21
returned, and even items produced from items seized during the
22
23
Okay.
24
25
drives, correct?
1
2
3
4
5
6
7
8
9
Correct.
inventories, correct?
A
10
11
12
13
the items seized from Mr. Montgomery on the return list that
14
15
16
17
MS. GAROFALO:
Thank you.
I have no further
questions.
18
THE COURT:
19
Thank you.
20
21
REDIRECT EXAMINATION
BY MR. ADDINGTON:
22
23
Yes, sir.
24
25
It's on the
second page.
Yes, sir.
Item 9 has our bar code of E03968100, one yellow and gray
Yes, it does.
case?
10
It does not.
11
12
Yes.
13
14
15
Yes, sir.
16
17
Exhibit C?
18
Yes.
19
20
21
yellow case at the time the case and the CDs were returned?
22
Yes.
23
All right.
24
25
Yes, sir.
All right.
you.
Correct.
That is correct.
8
9
10
11
12
those two photographs partially account for the six extra CDs.
A
13
14
15
Fifty-seven.
16
Yes.
17
18
Yes.
19
All right.
20
Once again, that's when we're doing the count, it was not
21
noticed until we were doing the count out that there were
22
double-stacked CDs.
23
24
25
Yes, sir.
2
3
Yes.
Yes.
10
Yes, it was.
11
12
13
Yes, sir.
14
Does that fully account for the 51 CDs in the case but 57
15
CDs photographed?
16
That is correct.
17
All right.
18
19
Fifty-one.
20
21
22
23
24
All right.
25
Yes, sir.
1
2
And up in the top above where this box of hard drives is,
Yes, it is.
And turn the page to the next photograph.
Is that a
CDs?
Yes, it is.
8
9
THE COURT:
are, sir?
10
11
MR. ADDINGTON:
of Exhibit F.
12
THE COURT:
13
MR. ADDINGTON:
14
THE COURT:
16
MR. ADDINGTON:
17
THE COURT:
19
open.
15
18
Say again?
Forty-two of Exhibit F.
Thank you.
BY MR. ADDINGTON:
Q
20
21
was seized?
22
Yes.
23
Were all of the CDs in the case when -- were the 51 CDs
24
25
Yes.
1
2
returned?
Yes.
Mr. Montgomery of the same CDs which were seized from him?
Yes, it does.
Yes, sir.
10
Mr. Montgomery?
11
12
13
14
Yes, sir.
15
16
THE COURT:
17
MR. ADDINGTON:
18
19
20
BY MR. ADDINGTON:
Q
21
Thirteen.
22
23
24
Yes, sir.
25
that photograph.
tell me again.
Yes, sir.
Sixteen?
On 52?
All right.
Sixteen.
Yes, sir.
So there are 13 CDs in photograph E-111,
correct?
Yes, sir.
10
11
Yes, sir.
12
THE COURT:
13
MR. ADDINGTON:
14
Wait a minute.
your Honor --
15
THE COURT:
16
MR. ADDINGTON:
17
I know.
THE COURT:
19
MR. ADDINGTON:
21
22
-- is being compared to G,
photograph 52.
18
20
BY MR. ADDINGTON:
Q
23
Yes.
24
25
correct?
That is correct.
What is
pictured there?
Yes.
And, in fact, are they the three CDs that are on the top
row in front?
10
Yes.
11
All right.
12
13
14
Yes.
15
16
17
No, sir.
18
19
item 13 of Exhibit A?
20
Yes, sir.
21
22
THE COURT:
23
MR. ADDINGTON:
24
THE COURT:
Item 26 of Exhibit C.
Thank you.
25
1
2
3
BY MR. ADDINGTON:
Q
That is correct.
Sixteen.
10
11
12
Sixteen.
13
I'm sorry?
14
Sixteen.
15
Thank you.
16
17
18
Okay.
19
What is shown as
20
21
Exhibit A, item 5.
22
23
All right.
Where --
24
25
home, correct?
Correct.
All right.
10
11
Yes, sir.
12
13
Okay.
14
15
There's 15.
16
Are we sure?
17
Yes.
18
All right.
19
Fourteen.
I just went to law school, not -Are we sure that there's 15 cases depicted on
20
Yes, sir.
21
22
23
24
25
THE COURT:
right?
4
5
MR. ADDINGTON:
THE COURT:
Okay.
MR. ADDINGTON:
cases.
10
THE COURT:
11
THE WITNESS:
12
Thank you.
Yes, they do.
BY MR. ADDINGTON:
13
14
you.
15
16
17
I didn't hear
18
19
20
21
Looking at the second row from the bottom, far right, the
22
Windows XP, that was underneath the silver -- the one with the
23
24
25
THE COURT:
sir?
THE WITNESS:
THE COURT:
THE WITNESS:
6
7
8
9
10
THE COURT:
Oh, I see.
BY MR. ADDINGTON:
Q
So, Agent Thomas, in your view, does that account for the
11
Yes, sir.
12
13
Yes, sir.
14
15
Yes, sir.
16
17
18
That is correct.
19
20
21
22
That is correct.
23
24
25
home, correct?
A
Yes.
Okay.
second row from the right and the second CD up, it's a dark
blue case.
Yes, sir.
I see it.
10
11
Yes, sir.
12
Yes, sir.
13
14
15
16
17
of CDs returned?
18
19
20
21
22
23
THE COURT:
24
MR. ADDINGTON:
25
THE COURT:
Item 29.
Thank you.
MR. ADDINGTON:
item 28.
THE COURT:
MR. ADDINGTON:
THE COURT:
THE WITNESS:
I see it.
9
10
11
12
That's fine.
Item 29 is 78 CDs ending in bar
code 103.
BY MR. ADDINGTON:
Q
All right.
13
Yes, it does.
14
15
16
17
Yes, it is.
18
19
20
21
Yes, they are, and, once again, the names were not
22
23
24
25
This
THE COURT:
MR. ADDINGTON:
3
4
BY MR. ADDINGTON:
Q
9
10
11
of Exhibit F, is that how they were found when they were first
located?
A
12
and the other box of media that were put together in just this
13
14
15
16
It might just be me, but when you lean that way you move
I say this box and the other box that had hard drives in
17
18
19
20
And then were the CDs from this box removed from the box
21
Yes.
22
23
me if those are the CDs that were removed from that box at the
24
25
Yes.
1
2
Yes.
Yes.
9
10
11
Absolutely not.
12
13
14
15
No.
16
17
18
That is correct.
19
20
21
22
23
24
25
1
2
3
4
Right.
10
11
Correct.
12
13
I'm sorry.
14
15
16
During the time that you were the case agent for this
17
18
19
20
21
22
the evidence.
Q
happened?
23
Yes.
24
25
sir?
Yes, sir.
Yes, sir.
three-and-a-half-inch disks.
Yes, sir.
10
11
12
13
14
storage unit?
15
16
17
18
Okay.
19
20
21
yellow disk?
22
Yes, sir.
23
24
25
seized?
A
Yes, sir.
No, sir.
10
11
12
13
14
15
Yes, sir.
16
Now, did you provide him a copy with this receipt that's
17
Exhibit 42, or did you provide him a copy of the return on the
18
19
20
21
brought out.
I'm a little confused at the moment.
I just think
22
23
24
25
Mr. Pulver.
4
5
6
7
No.
cross-examination.
Q
Yes, sir.
10
11
Yes, sir.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in the box?
A
Can
sort.
for.
No.
6
7
8
9
Okay.
10
11
was the yellow disk that was in the item 1 tower from Exhibit
12
C, correct?
13
14
15
16
17
Correct, yes.
18
19
20
21
22
23
24
25
Yes, sir.
Correct.
All right.
of time between the time the item was seized and the time that
10
11
12
Yes, sir.
13
And that gap of time was similar to the same gap of time
14
15
16
Yes, sir.
17
18
19
control room?
20
No, sir.
21
22
23
24
25
8
9
10
MR. ADDINGTON:
11
THE COURT:
12
MS. GAROFALO:
13
14
15
Nothing further.
Thank you.
RECROSS-EXAMINATION
BY MS. GAROFALO:
Q
16
F, if you would, and that's the one that shows the floppy
17
18
Yes, ma'am.
19
20
21
That is correct.
22
23
24
No, ma'am.
25
Yes, ma'am.
Okay.
forth.
Yes, ma'am.
Correct.
No, ma'am.
10
11
12
number 111.
13
Yes, ma'am.
14
Okay.
Mr. Addington
15
asked you to look at the second row from the right, that
16
17
Yes, ma'am.
18
19
Yes, ma'am.
20
21
22
Okay.
23
24
25
1
2
You did.
Yes.
MS. GAROFALO:
9
10
THE COURT:
be excused.
11
12
13
All right.
MR. PEEK:
14
THE COURT:
15
MR. PEEK:
16
17
18
THE COURT:
19
THE WITNESS:
20
THE COURT:
21
22
it is now.
23
MR. PEEK:
24
MR. GOMEZ:
126.
25
THE COURT:
426?
MR. PEEK:
126.
MR. GOMEZ:
126.
THE COURT:
MR. GOMEZ:
attached here.
10
11
THE COURT:
All right.
have a sidebar.
12
13
MR. GOMEZ:
14
15
16
There, in fact,
17
18
19
20
21
THE COURT:
22
MR. GOMEZ:
23
is.
24
THE COURT:
25
MR. GOMEZ:
MR. PEEK:
about here, your Honor, may be the one that is the February
declaration.
THE COURT:
It might be.
MR. GOMEZ:
THE COURT:
All right.
MR. GOMEZ:
10
11
Thank you.
MR. PEEK:
12
THE COURT:
All right.
13
14
ahead and unseal docket number 126 only with respect to docket
15
16
unsealed.
17
18
few questions.
19
objection?
20
MS. GAROFALO:
21
22
THE COURT:
23
24
25
All right.
I would
THE COURT:
MR. ADDINGTON:
MR. PEEK:
THE COURT:
6
7
10
THE COURT:
11
MR. PEEK:
12
13
14
storage unit.
15
16
THE COURT:
17
MR. ADDINGTON:
18
MR. PEEK:
19
THE COURT:
20
No objection.
so Plaintiff's 42 is admitted.
21
22
23
24
reviewed.
25
THE COURT:
MR. ADDINGTON:
MR. PEEK:
THE COURT:
No objection.
Plaintiff's 11 through
5
6
MS. GAROFALO:
THE COURT:
10
MR. PEEK:
11
12
CROSS-EXAMINATION
BY MR. PEEK:
13
14
Good afternoon.
15
16
17
18
19
20
21
22
23
24
A bold-faced lie.
25
Pardon?
Bold-faced lie.
2
3
MR. PEEK:
THE COURT:
step down.
7
8
That's all I
have.
4
5
THE COURT:
All right.
next witness.
MR. ADDINGTON:
10
THE COURT:
All right.
11
Mr. West takes the stand, and take about a 15-minute break.
12
13
14
THE COURT:
15
16
MR. ADDINGTON:
17
19
THE CLERK:
record.
21
THE WITNESS:
22
THE CLERK:
23
24
25
M I C H A E L
W E S T,
called as a witness on behalf of the Government,
was sworn and testified as follows:
18
20
Michael West.
Thank you.
Please be seated.
DIRECT EXAMINATION
BY MR. ADDINGTON:
Q
3
4
supervisor.
Reno, Nevada.
10
11
12
13
14
Yes, I did.
15
16
agent?
17
Case agent.
18
19
20
Yes.
21
22
23
24
25
agent.
Okay.
2
3
Yes, I do.
residence?
Yes, it is.
10
correct?
11
Yes, it is.
12
13
Yes.
14
15
16
17
18
19
20
21
22
23
24
25
Was a
4
5
6
7
And how soon after the seizure took place on March 1st
10
11
12
it.
13
14
15
16
17
18
And you're getting the March 8th date from the very top
19
Yes, it does.
20
21
22
Yes, I did.
23
24
25
Yes, I did.
warrant.
4
5
6
7
All right.
Yes.
10
Yes, it is.
11
Was there anything that was seized from the storage unit
12
13
14
15
16
17
units.
18
I do.
19
Is unit number 140 the only storage unit from which items
20
were seized?
21
Yes.
22
23
They were.
24
25
Correct.
And the date of that seizure activity was March 3rd, '06?
Yes.
Okay.
Yes, it does.
10
34, 35 and 36, does that also show different views of the
11
12
13
14
No.
15
16
Yes, I did.
17
18
19
Yes, it is.
20
21
22
Yes.
23
24
25
Yes, it does.
1
2
there.
Okay.
I have it.
Do you
I do.
Yes, it is a copy.
10
11
12
Somebody else's.
13
14
15
and my signature.
16
17
Yes, I did.
18
19
20
Yes.
21
22
Okay.
23
24
25
Yes, it is.
1
2
And it also shows the lock that you presumably cut from
Yes, it does.
correct?
Yes, it is.
If you go to the next photograph, number 56, there's some
I do.
10
11
12
13
14
15
Exhibit 42?
16
17
18
19
20
Yes.
21
22
23
Yes, I do.
24
25
Is that
that's a comma, and the page has been skewed a bit as this
document.
8
9
10
11
12
13
Yes, and you can see the lower number 12, 13, all kind of
14
Yes, it does.
15
16
Yes, commonly.
17
All right.
18
19
No.
20
21
22
No.
23
24
25
No.
I believe the only one that was seized was the one
answer.
3
4
Yes, I did.
unit photos.
Yes.
10
11
12
13
prepared to be seized.
Q
And keep your finger there with photo 52 and turn back to
14
15
16
17
18
storage media.
Q
19
20
photo 48?
21
22
23
seized?
24
25
1
2
3
picture.
Yes.
And it's your testimony that those disks were not seized?
Correct.
9
10
11
12
13
14
15
Yes, I did.
16
17
18
19
20
21
depict?
A
22
Correct.
23
24
25
Yes, I did.
1
2
Yes, I did.
5
6
floppy disks?
A
10
that box pulled those items out aside for me to look at, and
11
12
13
14
15
16
17
18
19
20
21
on a three-and-a-half-inch floppy.
22
23
24
25
disks?
Correct.
disks?
It does.
7
8
9
It would be an error.
scene that the employee was making a log, and this was going
10
11
12
13
14
15
16
17
18
19
20
21
22
And did you correct that error when you prepared Exhibit
23
24
I did.
25
10
Okay.
11
12
13
14
15
16
17
Yes, it is.
18
19
20
Yes, it is.
21
22
23
24
there's a hard drive enclosure to the upper left that was most
25
likely seized.
No.
Yes, I did.
10
11
12
I believe so.
13
14
the box?
15
Inside the box are various hard drives thrown in the box.
16
And you say thrown in the box, did there appear to be any
17
18
box?
19
No.
20
21
22
Yes.
23
24
Yes.
25
Yes.
Yes.
photograph depict?
10
11
12
13
14
15
16
Yes, it does.
Was there anything else in this box besides 78 compact
disks?
A
seize.
Q
17
Yes, it does.
18
19
20
correct?
21
Yes.
22
23
24
25
system.
1
2
evidence control packages for every item that was seized from
Mr. Montgomery?
7
8
9
10
contain all the items that were seized from Mr. Montgomery.
Q
Okay.
reflect.
11
Okay.
12
What is this?
13
14
15
case, the date the property was acquired, where the property
16
was acquired from, who acquired the property, who the case
17
18
19
20
21
22
23
24
25
The bar code number, does that bar code number exist with
Is
that -Q
1
2
3
room.
6
7
right-hand side?
Yes, I do.
10
11
data was entered into the computer, but maybe not necessarily
12
13
14
15
Yes.
16
17
18
Yes.
19
And then the second page, 002, has in big letters draft
20
21
22
23
24
25
And then the third page, 003, at the top it says Chain of
signatures, correct?
Correct.
once the evidence is received by the FBI, and every time it's
evidence.
10
11
item?
12
Yes.
13
And then the next two pages, 4 and 5, is that also part
14
15
16
17
18
No.
19
20
21
generated?
A
22
23
she prepared the forensic copy of item 1 and her work sheet
24
25
Yes, it is.
Okay.
Correct.
Yes, it is.
10
11
Yes.
12
March 2nd?
13
14
15
Yes.
16
Then the second page is the draft work sheet that you
17
described?
18
Yes, it is.
19
20
21
Yes, it is.
22
23
24
Yes, we do.
25
given item?
Yes, it is.
three pages over and over again repeated for each individual
item?
9
10
11
I'm there.
12
13
Yes.
14
15
16
correctly?
Am I reading that
17
18
19
20
21
22
23
24
25
case, six days between the date of the seizure and the date
Not at all.
6
7
No.
10
To analyze them.
11
All right.
12
13
14
15
16
All right.
17
18
19
Correct.
20
21
22
Not to my knowledge.
23
24
custody that would suggest that this seized item was handled
25
No.
Yes.
Was the device that was seized or the hard drive that was
Not to my knowledge.
10
11
custody?
12
No.
13
14
15
16
17
hard drive?
A
18
19
20
21
22
23
Yes, I do.
24
25
2006, correct?
Yes.
Not at all.
item 1 that we're talking about on page 001, the forensic copy
was being prepared, the items on page 006 were not processed
10
11
12
possible.
Q
page 11 of Exhibit H.
13
14
Go to
15
Yes.
16
17
18
Do I
19
20
21
22
And for what period of time did you have them out of the
23
24
25
No.
material the storage and chain of custody for each and every
8
9
Yes, it does.
MR. ADDINGTON:
10
THE COURT:
11
MS. GAROFALO:
12
MR. PEEK:
13
THE COURT:
14
15
16
17
Any objection?
No objection.
H is admitted.
BY MR. ADDINGTON:
Q
18
19
20
various signatures?
21
22
23
24
the March 2006 seizures, did any person have access to any of
25
enforcement personnel?
No.
me.
And even after you stopped being the case agent and that
10
seized materials?
11
Yes, I would.
12
13
14
15
16
17
personnel?
18
19
20
21
22
23
24
25
No.
9
10
11
No.
12
13
14
15
No.
16
17
to review items that had been seized and had been processed
18
19
Yes, I did.
20
21
22
Yes, I did.
23
And did you access the materials for any reason other
24
25
1
2
5
6
Mr. Montgomery alleged that one of the computers did not have
10
11
12
13
I believe so.
14
removed it from the base of the CPU, pulled it out, Mr. Thomas
15
16
17
18
Yes, it was.
19
20
21
22
23
When I was called into the room, that was the allegation
that was made, that there was no hard drive in the unit.
Q
Other than that role that you have just described with
24
respect to that particular device, did you have any other role
25
I did not.
Did you have any occasion that day to observe any part of
Yes, I did.
Montgomery was and Eric Pulver, and throughout the day there
was a lot of traffic in and out of the lobby from this group,
10
11
12
13
could see Mr. Montgomery leaving the office and going down to
14
a vehicle downstairs.
15
16
17
18
19
20
21
22
23
the day?
24
25
Mr. Montgomery
himself would leave the room and then go down to this vehicle
him?
8
9
facility, correct?
10
11
12
Yes, it does.
13
14
Yes.
15
16
17
correct?
18
19
20
out to his vehicle in the parking lot from time to time with
21
materials?
22
23
24
Honor, but Ms. Garofalo and I did have a brief discussion with
25
photograph 48.
6
7
That's my understanding.
8
9
THE COURT:
All right.
your understanding?
10
MS. GAROFALO:
11
THE COURT:
12
Thank you.
13
14
CROSS-EXAMINATION
BY MS. GAROFALO:
15
16
Good afternoon.
17
18
19
Okay.
20
21
22
Yes.
23
24
25
home, correct?
Yes.
Okay.
Again, the
That is correct.
9
10
11
12
13
14
15
16
and not Exhibit B, the return for the warrant executed at the
17
storage facility?
18
19
Okay.
20
21
B?
22
23
Okay.
24
25
Not to my knowledge.
1
2
Just give me
a minute.
52.
I'm there.
Okay.
earlier which has CDs, floppy disks and other items taken from
10
11
Okay.
12
13
Correct.
14
And it has been your testimony that the floppy disks were
15
16
Correct.
17
18
19
20
21
22
23
24
25
1
2
Okay.
number 48 in Exhibit G.
Yes.
Okay.
West?
No, I don't.
8
9
MR. ADDINGTON:
10
MS. GAROFALO:
11
MR. ADDINGTON:
12
MS. GAROFALO:
13
MR. ADDINGTON:
14
sorry.
15
BY MS. GAROFALO:
I'm sorry.
Item number 48?
Exhibit G.
Exhibit G?
I misheard, I'm
16
I'm sorry.
17
Let me check.
18
Forty-eight.
19
20
21
22
23
THE COURT:
Excuse me.
Whose
cell phone?
24
MS. GAROFALO:
25
THE COURT:
All right.
MS. GAROFALO:
THE COURT:
please.
BY MS. GAROFALO:
All right.
Go ahead.
Turn it off,
And Agent West has testified that other than the CDs in
actually seized.
10
11
understanding.
12
13
14
Okay.
15
Thank you.
16
17
18
19
20
21
Okay.
22
23
24
25
Okay.
the property receipt for the Buckthorne Lane address are the
Correct.
10
Okay.
11
12
13
14
15
16
Okay.
17
18
19
20
21
22
sites.
23
24
25
1
2
Correct.
Okay.
10
11
Everything that we
Okay.
12
13
14
15
Okay.
16
Let me --
17
18
19
20
not take.
21
Okay.
22
23
receipts, right?
24
25
4
5
6
correct?
A
a mistake.
Okay.
We're human.
10
11
12
13
Does it happen?
14
I imagine it has.
15
16
17
18
19
20
21
Well, we can.
22
23
24
25
3
4
5
6
7
Fair enough.
is that correct?
10
11
12
13
14
Okay.
15
16
Okay.
17
I don't know if
18
19
20
21
22
Okay.
23
24
25
Do you
recall that?
A
Okay.
possession.
6
7
MS. GAROFALO:
THE COURT:
10
11
12
You may.
THE WITNESS:
BY MS. GAROFALO:
Q
Okay.
13
14
15
16
17
18
19
Sure.
MR. ADDINGTON:
20
21
22
23
MS. GAROFALO:
24
25
information.
THE COURT:
5
6
MS. GAROFALO:
your Honor.
THE COURT:
MR. PEEK:
All right.
Your Honor, I would like to join in
10
11
was taken.
12
13
THE COURT:
All right.
14
15
BY MS. GAROFALO:
16
Okay.
Go ahead.
17
18
19
My experience with
20
21
22
23
24
25
6
7
10
11
Yes.
12
13
14
15
MS. GAROFALO:
17
THE COURT:
19
I don't
16
18
You may.
BY MS. GAROFALO:
Q
20
21
22
23
24
25
Do you
Okay.
4
5
6
7
testimony.
A
Thank you.
that correct?
10
11
12
13
14
15
16
17
18
19
20
21
22
23
When
24
25
any magnetic media that may contain -- computer media that may
1
2
kinds of media did you review and what kinds didn't you?
5
6
7
Can
10
to access.
11
12
13
14
15
16
17
18
19
20
21
disks.
Q
22
Yes, I do.
23
Okay.
24
25
1
2
Okay.
at 1:33 p.m.
Yes, I do.
6
7
10
11
I do.
Do you
minutes.
12
13
14
15
16
17
18
19
20
information.
21
22
23
them.
24
25
1
2
3
4
photographs?
9
10
exhibit, and this is the FD192 for one yellow and gray case
containing eTreppid disks.
11
Yes, I do.
12
Okay.
13
can see that these items were also checked out on 3/6/06 at
14
9:00 a.m.
15
16
Yes.
17
Okay.
18
Yes.
19
20
overnight?
21
At my desk.
22
Okay.
23
FBI employees.
The public
24
25
facility.
Okay.
the court, and then I later took them out to make Xerox copies
of the labels.
Okay.
8
9
10
2:56 and then put them back in at 3:00 p.m., and then, for
11
12
13
14
15
16
Okay.
17
Okay.
18
19
20
Yes.
21
22
23
24
25
continued.
Okay.
8
9
10
11
12
13
14
Did you ever find any evidence that Mr. Montgomery had
15
16
17
18
19
20
21
22
23
24
25
Okay.
Yes.
Okay.
Yes.
-- returned it at 3:00.
8
9
10
11
12
13
14
15
evidence room, Xeroxed them and placed them with the evidence
16
17
18
19
20
Some of
21
22
photo number 48, and you see the first two labels, but you
23
24
25
were returned?
Correct.
6
7
10
11
I'm there.
12
13
14
Yes.
15
16
were -- you took them into custody on March 31st, 2006, and
17
18
Yes.
19
20
Yes, I did.
21
22
23
24
25
I refer
5
6
9
10
11
12
13
wasn't it?
14
15
16
17
18
19
was there was a point after the storage unit search where I
20
21
22
23
24
25
He did.
3
4
eventually I was able to find the box they were shipped in.
8
9
10
11
No.
12
13
No.
14
15
16
17
18
No.
19
Okay.
20
21
22
THE COURT:
25
is 4:25.
23
24
MS. GAROFALO:
Honor.
THE COURT:
And please
MS. GAROFALO:
THE COURT:
4
5
Thank you.
BY MS. GAROFALO:
Q
I do.
10
11
CDs?
12
13
14
15
16
17
18
19
20
21
22
of what was on that tape, and there were other DV tapes that I
23
24
25
No.
Okay.
3
4
5
Correct.
How do you know that none of the CDs were damaged
I don't.
-- Agent West?
10
11
12
speculation.
13
14
the CDs was damaged during the search, during the removal,
15
16
faces, do you?
17
18
19
20
21
Storing it in a no
22
23
know if they were readable when you took them, and you don't
24
know if they were readable when you gave them back, do you?
25
fact that there was a hearing going on, that we did not look
But I can tell you the way the FBI handled the
10
11
12
So
Well, I can tell you that we don't throw them around the
13
office, that we don't stand on them, and that may be the way
14
15
16
17
18
Never.
19
No.
20
21
22
You have no idea whether the two hard drives that were
23
24
25
1
2
You're testifying
that you don't know what was on any of the electronic media,
you don't know what you seized, and you don't know what you
MS. GAROFALO:
THE COURT:
Thank you.
10
MR. ADDINGTON:
11
THE COURT:
12
MR. ADDINGTON:
Anything on redirect?
13
14
that inquiry.
15
THE CLERK:
Yes.
16
THE COURT:
Any objection?
17
MS. GAROFALO:
18
THE COURT:
19
down.
20
21
THE COURT:
22
23
24
proceed first.
25
MS. GAROFALO:
THE COURT:
All right.
8
9
10
11
12
13
14
15
16
17
18
Paragraph 10 indicates,
"On information and belief, it appears clear
19
20
21
22
23
24
25
the hour, go ahead and allow counsel for the United States and
issues remain.
issues remain.
items seized were somehow damaged during the time in which the
10
11
12
13
issue.
14
15
MR. ADDINGTON:
16
17
18
19
20
THE COURT:
21
MR. ADDINGTON:
22
THE COURT:
23
Thank you.
All right.
Anything further,
counsel?
24
MS. GAROFALO:
25
MR. ADDINGTON:
MR. PEEK:
THE COURT:
3
4
Court is adjourned.
-o0o-
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I N D E X
2
3
4
5
GOVERNMENT'S WITNESSES:
PAGE:
DEVORE, Gerald W.
Direct Examination by Mr. Addington
Cross-examination by Ms. Garofalo
Redirect Examination by Mr. Addington
6
21
34
THOMAS, Mark A.
Direct Examination by Mr. Addington
Cross-Examination by Ms. Garofalo
Redirect Examination by Mr. Addington
Recross-Examination by Mr. Addington
Cross-Examination by Mr. Peek
37
93
143
165
171
WEST, Michael
Direct Examination by Mr. Addington
Cross-Examination by Ms. Garofalo
172
202
6
7
8
9
10
11
12
13
14
15
16
17
18
GOVERNMENT'S EXHIBITS:
A - Buckthorn Property Seized List
B - Storage Units Property Seized List
C - Property Returned List
D - Prescription Drug Return List
E - Photographs
F - Photographs
G - Photographs
H - FD192s
ID
EVIDENCE
48
48
40
10
16
49
50
196
19
20
21
22
DEFENDANT'S EXHIBITS:
11 through 19 - Evidence Control Room Documents
23 through 30 - Evidence Control Room Documents
41 - Photographs
24
42 - Inventory of Seized Items
95
171
171
170
180
23
24
25