May 2012 X Cript

1
1 UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE
2 NASHVILLE DIVISION
3 ____________________________________________________________
4 UNITED STATES OF AMERICA )

)
5 )
vs. ) CASE NO. 3:10-00250
6 )
)
7 MATTHEW PAUL DEHART )
8 ____________________________________________________________
9
TRANSCRIPT OF PROCEEDINGS
10
11 ____________________________________________________________
12 BEFORE: THE HONORABLE ALETA A. TRAUGER
13 DATE: MAY 22, 2012
14 TIME: 10:00 A.M.
15 ____________________________________________________________
16 APPEARANCES:
17 FOR THE GOVERNMENT: CARRIE DAUGHTREY

LYNNE INGRAM
18 U.S. Attorney's Office
Nashville, Tennessee
19
FOR THE DEFENDANT: MARK SCRUGGS
20 Nashville, Tennessee
21 ____________________________________________________________
22
REPORTED BY: BEVERLY E. "BECKY" COLE, RPR
23 OFFICIAL COURT REPORTER
A-837 U.S. COURTHOUSE
24 NASHVILLE, TN 37203
(615) 726-4893
25 BECKY_COLE@TNMD.USCOURTS.GOV
Case 3:10-cr-00250 Document 105 Filed 06/06/12 Page 1 of 119 PageID #: 448
2
1 INDEX
3 PAUL JOSEPH DEHART:
4 Direct Examination by Mr. Scruggs 4
5 Cross-Examination by Ms. Ingram 14
6 Redirect Examination by Mr. Scruggs 33
8 MATTHEW DEHART:
9 Direct Examination by Mr. Scruggs 38
10 Cross-Examination by Ms. Ingram 49
11
12 BRETT KNISS:
13 Direct Examination by Ms. Ingram 59
14 Cross-Examination by Mr. Scruggs 66
15 Redirect Examination by Ms. Ingram 71
16
17 JEAN
18 Direct Examination by Ms. Ingram 74
19 Cross-Examination by Mr. Scruggs 78
20 Redirect Examination by Ms. Ingram 82
21
22 EXHIBITS
23 Defendant's Exhibit 1 8
3
1 THE COURT: Good morning. We're here on United
2 States vs. Matthew Paul DeHart. We have Carrie Daughtrey
3 and Lynne Ingram for the government; Mark Scruggs for the
4 defendant. The defendant is in the courtroom.
5 The initial issue this morning I think is detention,
6 and I would like to take that up first.
7 Mr. Scruggs, I already reviewed the detention order
8 once, but that was sometime ago. It was back in December of
9 2010.
10 I have reviewed that transcript, the transcript out of
11 Maine for the other hearing that was held back in August of
12 2010.
13 Would you like me to consider all of that material
14 plus anything additional you wish to present today?
15 MR. SCRUGGS: Yes, ma'am.
16 THE COURT: Okay. Do you have additional
17 witnesses?
18 MR. SCRUGGS: Yes, I would like to call Paul
19 DeHart, who's Matthew's father, as well as Matthew briefly.
20 THE COURT: I have already heard from him once,
21 so I hope we have new information.
22 MR. SCRUGGS: I would like to put him on for the
23 purpose of basically summarizing where we are at this point
24 and the fact that he's more than willing to provide whatever
25 assistance he can to the Court in compliance with any
5
1 Q Now, I wasn't here the first time you testified, don't
2 really want to go over that in a lot of detail again.
3 A Sure, sure.
4 Q The first thing I wanted to address was what has
5 happened since the last time you testified --
6 A Okay.
7 Q -- which has been I guess now about 18 months?
8 A December 2010, yes.
9 Q Almost 18 months then, okay. Now, as far as -- number
10 one, and this may be repetitive as far as the last time you
11 were here --
12 A Sure.
13 Q -- but are you and your wife still in a position to
14 provide a residence for your son and assure the Court that
15 no matter what those conditions are, they will be complied
16 with?
17 A Yes, we are. We have since moved from the residence
18 that Matt was arrested in. I have sold that, used that
19 money for legal expenses, so we have another residence.
20 It's a two bedroom. It's closer to my work. It's
21 less than a mile, and so the venue has changed. And we're
22 willing to do what are whatever is required.
23 Matthew can come to work with me. I work at the
24 church, and we have a kind of a work agreement we can set up
25 for him to do volunteer work. There's always work to do
7
1 requirements the Court has.
2 Q Also you have some letters that some other folks
3 brought as well. Is that correct?
4 A Yeah, some letters of reference from the elders in the
5 church saying they would support us whatever needed to be
6 done.
7 MR. SCRUGGS: Your Honor, if I could hand these
8 letters to the witness?
9 THE COURT: Okay. Has the government seen them,
10 Mr. Scruggs?
11 MR. SCRUGGS: Pardon?
12 THE COURT: Has the government seen the letters?
13 MR. SCRUGGS: I have just given them a copy.
14 THE COURT: Okay.
15 THE WITNESS: Thank you.
16 BY MR. SCRUGGS:
17 Q Now, are those letters from people in the community --
18 A Yes.
19 Q -- who are there to support you and support Matthew
20 and to make sure that everything the judge would order in
21 terms of the conditions of his release would be complied
22 with. Is that correct?
23 A Yes, yes.
24 MR. SCRUGGS: I would like to submit those
25 letters then as an exhibit to his testimony, if I could?
8
1 THE COURT: All right. Any objection to Exhibit
2 1?
3 MS. INGRAM: No objection.
4 THE COURT: All right. May I see them?
5 (Defendant's Exhibit 1 was received into
6 evidence.)
7 (Pause.)
8 THE COURT: How big is your church? How many
9 parishioners do you have?
10 THE WITNESS: On average, we have about 110 on
11 Sunday morning attendance.
12 BY MR. SCRUGGS:
13 Q Now, you had also mentioned me yesterday that you had
14 even explored some correspondence courses for him as well?
15 A Yes, Leann works at Trinity Seminary. It's a
16 predominantly online and correspondence seminary, so there
17 are programs Matt could be enrolled in and could be working
18 on in his time, so he wouldn't just be sitting around with
19 nothing to do. He would have something positive to occupy
20 his time.
21 Q As far as putting up any collateral in order to secure
22 his presence, are you in a position to do that?
23 A We have the title to both of our vehicles, and my
24 mother-in-law is willing to put up the equity in her home in
25 Fort Branch. And we could -- if we had to, could scrape
9
1 together some cash if we needed to come up with a cash bond.
2 Q So basically you are willing to put up everything you
3 own --
4 A Yes.
5 Q -- even a relative owns --
6 A Yes.
7 Q -- to make sure his presence is secured. Is that
8 correct?
9 A Yes, sir.
10 Q Let's talk about what has happened to Matt in the past
11 18 months in term of his health, mental condition and so
12 forth. You touched upon that just a second ago.
13 A Well, Matt was discharged from the Air National Guard
14 because of depression, and he was seeing a psychologist and
15 psychiatrist.
16 He's been treated for attention deficit hyperactivity
17 disorder since seventh grade. When he was in up Canada, he
18 was taking his medication. When he came down and was
19 apprehended at the border, they abruptly ceased his
20 medication for everything.
21 And he was given, from what Matt described, as
22 Thorazine, with I basically scrambled his thinking.
23 And so he -- when I talked to him from the court
24 during his initial detention hearing before Judge Kravchuck,
25 he collapsed in court, and the Court was gracious enough to
10
1 allow his federal defender to call me and let me talk to
2 him.
3 He was basically babbling on the phone. It was
4 apparent to me that he had had some -- he had been drugged
5 in some way or another.
6 We received medical reports after Matt was in Canada
7 that -- you know, when he got back from HIPAA. We had
8 signed a HIPAA request that Matt had been taken to a medical
9 center in Maine and was diagnosed with psychotic break, a
10 drug-induced psychotic break on the 6th of August.
11 Matt said he was denied food, denied water and was
12 administered Thorazine. He said it was Thorazine because he
13 read the package that he was administered and described the
14 pill, which I looked up online, and it seemed to be that's
15 what it was, but he was clearly not -- when I spoke with him
16 on the phone he was not coherent. He was babbling about all
17 kinds of things.
18 Q Let me move up if I could since last hearing though --
19 A Sure, all right.
20 Q -- in terms of his treatment at the place where he's
21 housed now, Bowling Green, Warren County Detention Center.
22 A He's currently in a situation where he has sunlight,
23 but basically they are in 23 hour lockdown. They are
24 allowed to go out once a day a couple of times a week he
25 gets outside.
11
1 So about maybe two or three times a week, he's allowed
2 to get out in sunlight. Otherwise, he's in an environment
3 that's confined.
4 He's treated currently for depression with Wellbutrin,
5 but he doesn't see a counselor, and he's not being treated
6 for his ADHD, which is the harder thing in an environment
7 like that because of the constant noise and lights, and all
8 that, so it's difficult without any ADHD medication, which
9 he has requested, but has been denied that.
10 Q Okay. So basically you are in a position to ensure
11 that all of the conditions of any possible release would be
12 met?
13 A Yes.
14 Q You can tend to his health issues, medical issues.
15 You'll also possibly secure employment if he comes to work
16 with you?
17 A He will volunteer at church.
18 Q Correspondence courses as well?
19 A Yes.
20 Q And assure the Court that --
21 A Yes.
22 Q -- every condition of release would be complied with.
23 Is that right?
24 A Yes, yes.
25 Q Now, I have asked you to put together just sort of a
12
1 little summary of an argument for bond, some of the points
2 and so forth. Again, some of this may have been addressed
3 at the first or the last hearing --
4 A Sure.
5 Q -- on the bond, whichever. That may have been the
6 second one, I guess.
7 A Yes.
8 Q But you put together those points. I'm going to go
9 ahead, and I have given a copy to the government here, again
10 some of this may overlap, but I would like for you to -- I
11 would like to submit that to the Court. I don't know if you
12 want to read through it.
13 You can probably read it as well as he could recite
14 it, so I would like to submit that to the Court in terms of
15 the argument, points, in terms of addressing the issues
16 about Mexico and the embassy and the Canada thing as well?
17 THE COURT: This is a written document?
18 MR. SCRUGGS: It's a written document, yes.
19 THE COURT: How long is this written document?
20 MR. SCRUGGS: What, four pages?
21 THE WITNESS: Maybe. Yeah, it's four pages.
22 MS. INGRAM: I object to that, Your Honor, for
23 several reasons.
24 First of all, as Mr. Scruggs just pointed out, a lot
25 of this is overlapping, a lot of this is repetitive. The
13
1 witness is here for a second time testifying to similar
2 things from the past.
3 Your Honor has the transcript, and he's here able to
4 testify. This information is unnecessary for Your Honor to
5 review the detention hearing.
6 MR. SCRUGGS: Some of these things, Judge, I
7 believe go beyond what was discussed at the detention
8 hearing, is what I'm told.
9 BY MR. SCRUGGS:
10 Q Is that correct?
11 A Yes, it was. We didn't get a chance to talk about
12 some of these things at the detention hearing.
13 THE COURT: I'll receive it. Overruled.
14 MR. SCRUGGS: Okay.
15 THE COURT: Exhibit 2 will be the defendant's
16 father's written argument for bond.
17 MR. SCRUGGS: Right.
18 THE COURT: And the government obviously can
19 cross-examine on any of this.
20 MR. SCRUGGS: Right.
21 THE COURT: So let's have Exhibit 2 submitted,
22 please.
23 MR. SCRUGGS: Okay. Go ahead and submit that the
24 court officer there, and I will pass the witness.
14
1 evidence.)
2 THE COURT: Okay. Let me just take a couple of
3 minutes to scan this before we -- now, this has got --
4 THE WITNESS: That's.
5 THE COURT: -- pencil markings on it. I don't
6 think you want me to have this copy. Do you have a clean
7 copy for the Court?
8 THE WITNESS: I'm sorry. That was my talking
9 copy.
10 MR. SCRUGGS: My only copy then would be the
11 government's.
12 MS. INGRAM: I was just handed this as well, so I
13 haven't had a chance to go through this fully.
14 THE COURT: Let's make a copy of it. I'll take a
15 short recess and read it, and we'll come back in, in ten
16 minutes or so.
17 MR. SCRUGGS: Thank you.
18 (Break.)
19 THE COURT: All right. Cross?
20 MS. INGRAM: May have just one more moment, Your
21 Honor?
22 THE COURT: Yes.
23 (Pause.)
24 CROSS-EXAMINATION
25 BY MS. INGRAM:
15
1 Q Mr. DeHart, I'm going to go through some questions,
2 first off, through this information that you have provided
3 to the Court.
4 Did you type this up?
5 A Yes.
6 Q The medical information that you have been testifying
7 about, where does that information come from?
8 A Specifically the his treatment and?
9 Q His treatment within the, yes, facility.
10 A He filled out a HIPAA request, and we got it from
11 Eastern Maine Medical Center. I have that information in
12 the file, and Mr. Scruggs has that information as well.
13 Q You have those records here with you today?
14 A Yes, we do.
15 MS. INGRAM: Your Honor, at some point I would
16 ask to be allowed to review those, please?
17 THE COURT: Mr. Scruggs, have you got them?
18 MR. SCRUGGS: I have got them.
19 THE COURT: Okay.
20 BY MS. INGRAM:
21 Q Was the defendant taking medication prior to his
22 incarceration?
23 A Yes, he was.
24 Q Wasn't there a period of time when he had stopped
25 taking his medication that you and your wife were excited
16
1 about him being able to be off his medication?
2 A We had mentioned the fact that when he was in
3 detention that he -- that he was getting by okay without it
4 because we did not know what it would be like for him to be
5 in a jail setting without any ADHD medication.
6 And I think the last time I testified in December of
7 2010, I said that we were proud of the fact that he was
8 handle things okay, that -- he hadn't -- from my
9 perspective, that he hadn't broken down and had to be put in
10 isolation, so that was my perspective.
11 Q That was your assessment after several months in
12 custody?
13 A Yes, as he was being transported, yes, to the Middle
14 District of Tennessee.
15 Q Do you have any sort of medical training?
16 A No, I do not, other than as a parent of a special
17 needs child for the time that he lived with us.
18 Q And that training is what?
19 A Having to take him to psychologists and psychiatrists
20 and doctors and school officials and dealing with ADHD and
21 depression and those kinds of things.
22 Q So while you refer to him as a special needs child,
23 you don't have specialized training in the medical field?
24 A No, I do not.
25 Q Let's talk about the first page of this where you
17
1 reference factors bearing on flight risk.
2 It says "Matt traveled to Mexico for several days
3 after execution of the search warrant." He had never been
4 to Mexico before then, right?
5 A No, he had never been.
6 Q And he had no contacts there, right?
7 A We knew people in Mexico. I have traveled to the Baja
8 on at least three occasions with mission work in our church,
9 and Leann and I had been on a mission trip to Monterrey,
10 Mexico when we were in college.
11 Q I understand that, sir, but the defendant had no
12 contacts in Mexico.
13 A No, I'm sorry if I misunderstood your question. No,
14 he did not have contact in Mexico.
15 Q And you and your wife were able to convince the
16 defendant to come back after several days, right?
17 A Yes, we were.
18 Q He had an invalid expired passport, is that right,
19 expired passport while he was down there?
20 A He had carried his expired passport with him. He
21 didn't need a passport to enter at that time to Mexico.
22 Q So I presume you found this out at the last hearing?
23 A I don't recall if it came up at the last hearing.
24 Q You don't remember being asked if he was able to
25 travel at the time without a passport by Mr. Everitt?
18
1 A I'm sorry, I don't recall that. I don't have a
2 transcript.
3 Q Have you had a chance to review the transcript from
4 the detention hearing previously?
5 A I may have read it, but I haven't read it recently, so
6 I don't remember.
7 Q The trip to Canada, you mention in this in your notes
8 that your son wanted to be able to have a skill if the
9 investigation in the United States didn't work out. Is that
10 right?
11 A Yes.
12 Q So y'all were all very well aware that an
13 investigation was going on while the defendant was over in
14 Canada?
15 A Yes, yes.
16 Q When the defendant was asked about his residence, you
17 put in your notes that Matt could not remember his address,
18 but that's not true because he lied about his address, isn't
19 that right?
20 A I -- I'm not aware that he lied about his address.
21 Q Well, you know that he mentioned that he was living in
22 a dormitory on campus, right; that's what he had stated to
23 law enforcement?
24 A I have seen -- just recently Mr. Scruggs gave me a
25 copy of the report from the FBI agents who interrogated Matt
19
1 on the way -- at the border and on the way to Penobscot
2 County Jail.
3 Q Are you now aware that the defendant told them that he
4 lived in a dormitory on campus?
5 A I'm aware of that's their summary of what he said. As
6 I have stated before, I think Matt -- we have had a medical
7 evaluation, and Matt had a psychotic break later on that
8 day. I do not know what he told them at that point.
9 Q Because you weren't there?
10 A Because I wasn't there.
11 Q And the information you are receiving is from your
12 son, the defendant, right?
13 A Yeah, when we have been able to talk to him, yes.
14 Q Have you had a chance to look at the report and the
15 transcript from the detention hearing in Maine?
16 A I have read that before, yes.
17 Q And so you saw the discussion about the defendant
18 telling Pretrial Services that he lived in a college
19 dormitory; do you remember that part?
20 A No, I don't. I'm sorry.
21 Q Okay.
22 A He lived right off of campus.
23 Q You would agree that he was not living in the college
24 dormitory, wouldn't you?
25 A No, he wasn't living in a college dormitory.
20
1 Q And this drugged and tortured information, who was
2 that provided to you by?
3 A Matthew.
4 Q And do you know anything about there being some sort
5 of substance in the corner of the room that Matthew went and
6 touched apparently and got it in his eye, do you know
7 anything about that?
8 A No.
9 Q He didn't tell you what happened, how that happened?
10 A Unfortunately, as you know, we're not able to
11 communicate with Matt since his arrest other than on the
12 phone that has been monitored, so we don't have those
13 detailed level conversations.
14 Q He shared with you enough information that you feel
15 like that's an accurate statement?
16 A Yes.
17 Q But you do not know all the details apparently, right?
18 A No, I do not.
19 Q You mention in here that you don't think that Matt has
20 resources to flee, but he does have access to his
21 grandmother that you mentioned, right, in Fort Branch?
22 A Right.
23 Q And that is the same grandmother that gave him money
24 to go to Mexico the first time, right?
25 A Yes.
21
1 Q And I presume she's still in the same financial
2 situation, isn't she?
3 A She gave a substantial amount of money for us to
4 retain an attorney the first time, and so she has less
5 resources than she had before.
6 Q She still has resourced to assist if she wanted to?
7 A She has some resources, yes.
8 (Pause.)
9 MS. INGRAM: Okay. Your Honor, I'm sorry, I'm
10 just going through this and making sure I'm not missing
11 anything.
12 THE COURT: That's fine.
13 BY MS. INGRAM:
14 Q The unhealthy detention conditions that you
15 mentioned --
16 A Yes.
17 Q -- all of this is coming from your son, right?
18 A Yes, yes.
19 Q Have you actually been in there where he's being
20 housed?
21 A We're not allowed in there as family members, no.
22 Q So you haven't seen these conditions that he's
23 referring to?
24 A Other than on the jail picture that they show general
25 pictures of the hallways and things like that, that's all I
22
1 have seen.
2 Q Are you able to gather this information from jail
3 pictures?
4 A That he's only allowed out once a day or -- what
5 specific --
6 Q Any of this information?
7 A The fact that he hasn't had any dental care or?
8 Q That he hasn't had what? I'm sorry.
9 A Dental care in two years.
10 Q You can gather that from pictures?
11 A No, I'm not saying that at all, no.
12 Q Okay. The Court had a concern about the community
13 ties with the defendant last time, right, and so I presume
14 that's why you mention that in here? You were going through
15 the defendant's community ties now, is that why you put that
16 in here?
17 A No, I just mentioned that. I don't remember if it was
18 specifically because of that came up in the last hearing.
19 Q Why did you put his community ties in here?
20 A I think it's important if you're showing that someone
21 is tied to a community that it's not just him by himself,
22 there's other people around him that would ensure his
23 compliance with not leaving the area and attending all the
24 court-required appointments.
25 Q So the ties of the community would be you and your
23
1 wife, right?
2 A Correct.
3 Q The grandmother from Fort Branch that we have already
4 discussed?
5 A Correct.
6 Q An aunt and uncle?
7 A Yes.
8 Q Another uncle? How much contact have these
9 individuals had with Matt over the past several years?
10 A The aunt and uncle, Matt was -- Matt saw Michael
11 almost weekly. He came to church with us, so he would eat
12 dinner with us on Sundays.
13 The uncle in Kokomo recently retired from the El Paso
14 Fire Department and hasn't really been in the area that
15 long.
16 Q So you would say he's not very close to the defendant?
17 A That particular uncle, no, just his family. He is
18 connected to the church though and has been a member there
19 since we started in 2005.
20 Q Let's talk about that. That would be the two letters
21 that you gave the Court?
22 A Yes, yes.
23 Q Who prepared these letters?
24 A I did.
25 Q You typed them yourself?
24
1 A Yes, I did.
2 Q Then you went around to the congregation and said
3 please sign this; is that how it worked?
4 A I gave it to our elders and asked if they would sign
5 it, and I gave it to one of the leaders of our ladies Bible
6 class.
7 Q Do these elders and the other individuals in your
8 church know what charges the defendant is facing?
9 A Yes, they do.
10 Q And they know that he -- do they know how much time
11 he's facing?
12 A I don't know if they know that.
13 Q Do they know the specific details about this case?
14 A I don't think they know that many details.
15 Q Your wife at the last hearing didn't think your son
16 had done anything wrong and this would all just go away; do
17 you think the church members feel that way as well?
18 A I don't know how much all the church members know.
19 Q You mention on here in the community ties that he
20 served in the Indian Air National Guard?
21 A Yes.
22 Q Does he still communicate with those people, do work
23 for them, volunteer there?
24 A No, he was discharged.
25 Q He was discharged because of his mental health
25
1 condition, right?
2 A Because of depression, yes.
3 Q You mentioned some conclusions that you are making
4 about continuing pattern of violations of due process
5 rights, do you have any legal training?
6 A No, these were just my thoughts. Obviously, I'm not a
7 legal expert in any shape or form.
8 Q The law enforcement is dragging heels on discovery?
9 Are you aware that the discovery process began a very long
10 time ago and that discovery has been an ongoing process?
11 A Yes, I am.
12 Q And are you familiar with the process that goes on
13 behind closed doors when the United States is conducting an
14 investigation before they bring charges?
15 A Obviously, I'm not.
16 Q So when you make a statement like they are dragging
17 their heels on discovery, you don't know that's a true
18 statement, do you?
19 A That's my perspective from a parent, that's all, a
20 citizen. It just seems like a long time.
21 Q "The delays in transportation to the Middle District
22 of Tennessee for the purpose of interrogation"?
23 A Yes.
24 Q Do you have anything to support that? That's just
25 your own opinion, right?
26
1 A It seemed to be a very long period of time to come
2 down here. Matt mentioned a further interrogation that was
3 not on the affidavit signed by Mr. Thompson, I believe it
4 was, and that he was taken to Portland, Maine, and further
5 interrogated there, which was not reflected on that.
6 That's obviously something I personally can't verify,
7 but that's what Matt said.
8 Q And you have no reason to know that's the reason that
9 the delay was caused to get here to the Middle District of
10 Tennessee do you, other than Matt telling you that?
11 A Well, the fact that he was interrogated about
12 something other than this case is, to me, a logical
13 conclusion.
14 Q I'm specifically asking about the delay in
15 transportation. You have no evidence to show that's the
16 reason that that happened?
17 A Oh, no, I'm sorry. No, I do not.
18 Q Let's talk about your work schedule. How often do you
19 work?
20 A I work Sunday through Thursday.
21 Q Is that the same schedule you had in December of 2010?
22 A Yes.
23 Q Is that full time?
24 A Yes.
25 Q Are you gone most of the day on those days?
27
1 A I'm at the facility, yes, from nine to two.
2 Q And what are your wife's hours?
3 A She works from eight until five.
4 Q Monday through Friday?
5 A Monday through Friday. She usually goes in at seven.
6 Q Does anyone else live in your home?
7 A No.
8 Q So when you say you are able to provide 24/7 constant
9 control over your son, really there would be no one at home
10 while you and your wife were at work during those days for a
11 majority of those days, correct?
12 A If he was allowed to come to work -- correct, if he
13 was restricted to home, I would have to work something out
14 that I could work from home somehow.
15 THE COURT: You are proposing that he come to
16 work with you and do volunteer work?
17 THE WITNESS: That would be my suggestion, yes,
18 ma'am.
19 BY MS. INGRAM:
20 Q Wasn't he a volunteer at the church in the past?
21 A He has volunteered, yes.
22 Q Wasn't that with youth groups?
23 A Yes.
24 Q How often was he doing that?
25 A A couple of times.
28
1 Q So would he be permitted if the Court allowed it to be
2 involved with these youth groups again?
3 A Considering the situation, no, I would think not.
4 Q And he's not permitted to become employed, you are
5 just offering a place for him to go spend his day, right?
6 A I don't know what his employment options would be. If
7 he could have a job, that would be wonderful.
8 Q Are you aware of any potential employers that would
9 wish to hire your son?
10 A No, I do not know of anybody.
11 Q Are you aware about your son trying to sell
12 information to other countries?
13 A No.
14 Q Have you reviewed the reports that indicate that's
15 what he was, in fact, doing?
16 A I read the reports, yes.
17 Q So you are aware that he was trying to do that
18 according to these reports?
19 A I have become aware of that according to the reports.
20 Q In fact, you have helped him go to embassies, haven't
21 you?
22 A I have taken him to two embassies, yes.
23 Q And you mentioned your contacts in Mexico. Y'all have
24 contacts in Canada as well, right?
25 A Contacts through the school. We don't have any
29
1 personal contacts, no.
2 MS. INGRAM: If I may have one more moment, Your
3 Honor?
4 THE COURT: Okay.
5 (Pause.)
6 BY MS. INGRAM:
7 Q Do you remember giving testimony before the grand
8 jury?
9 A Yes, I do in Washington, D.C.
10 Q Back in September 2010?
11 A Yes.
12 Q And do you remember testifying under oath that you
13 believed your son was trying to defect?
14 A I'm not sure -- I'm not trying to evade your question.
15 I'm not sure I'm allowed to talk about what went on there.
16 It was in a national security section in Washington, D.C.
17 In a secure facility.
18 Am I able to comment on those things?
19 MS. INGRAM: Your Honor, I'm not asking about
20 national security issues. I'm asking about his son and his
21 attempt to defect.
22 THE COURT: Well, I don't know. The government
23 has been very secretive about everything connected with all
24 of that. I don't know that I can give him permission to
25 reveal something that he testified to in a grand jury. You
30
1 could ask him a question -- you could ask him that question
2 without couching it in terms of what he said to the grand
3 jury, I suppose.
4 MS. INGRAM: Yes, Your Honor.
5 BY MS. INGRAM:
6 Q Do you believe that your son at some point in time was
7 trying to defect?
8 A My understanding was Matt was trying to defect, yeah.
9 My understanding was also that he was trying to seek asylum,
10 so that was my thought going in, and so that --
11 Q Did you also believe that your son was going to be
12 successful at that?
13 A I did not know if he would be successful at that.
14 Q You don't recall thinking that he would be successful?
15 A Well, I recall that if it had been successful, I
16 wouldn't see him again.
17 THE COURT: Seek asylum based upon what, our
18 child pornography penalties?
19 THE WITNESS: I don't think, Your Honor, that's
20 what he was mostly afraid of. I think his involvement with
21 a group called Forchan online, their connection with a group
22 called Anonymous, which later led to their involvement in
23 Occupy, I think Matt felt the government was watching him
24 before any of this came up. I think that's what he was
25 afraid of.
31
1 THE COURT: Before the child pornography charges
2 came up?
3 THE WITNESS: Yes, ma'am.
4 THE COURT: Okay.
5 BY MS. INGRAM:
6 Q So the actual fleeing to Mexico that happened after
7 the search warrant, he was aware because of the search
8 warrant that you reviewed that this dealt with a child
9 pornography production investigation, right?
10 A That's what -- yes, that's what the warrant that was
11 left with us said, yes, ma'am.
12 Q So he was afraid of what that warrant said, which was
13 the investigation regarding child pornography. Is that
14 right?
15 A I think that he was concerned, yes. Yes, he was
16 concerned.
17 Q Because after that child pornography search warrant
18 was executed, the next day is when he fled to Mexico after
19 that specific warrant, isn't that right?
20 A Yes.
21 MS. INGRAM: Your Honor, we have just been
22 provided with the medical records.
23 MS. DAUGHTREY: Actually, that's not correct. We
24 had them but didn't know they were relevant.
25 MS. INGRAM: I apologize. We didn't know they
32
1 were relevant until this morning, so if I may have a moment
2 to review those records or if Your Honor would like to
3 proceed I will continue looking at them?
4 THE COURT: Well, they haven't come in as an
5 exhibit. Is someone going to introduce them as an exhibit?
6 MS. INGRAM: I don't know what's in them, Your
7 Honor.
8 THE COURT: Okay. All right.
9 MR. SCRUGGS: I was going to do that, Judge, but
10 I just want to make sure they have got the same thing I have
11 got.
12 THE COURT: Okay. Do you know if you object at
13 this point?
14 MS. INGRAM: I don't know, Your Honor.
15 THE COURT: Because you haven't looked at it?
16 MS. INGRAM: Correct.
17 THE COURT: Are you finished with your cross?
18 MS. INGRAM: Yes, ma'am.
19 THE COURT: Okay. Well, why don't we Have
20 redirect? You can be -- you have got another counsel there
21 who was lead counsel on this case, so I would think one of
22 you could be reviewing them while the other --
23 MS. INGRAM: She still is.
24 THE COURT: -- is listening to testimony. Okay.
25 MS. INGRAM: Thank you, Your Honor.
33
1 THE COURT: All right. Redirect?
2 REDIRECT EXAMINATION
3 BY MR. SCRUGGS:
4 Q Just a point of clarification.
5 A Yes.
6 Q January 25, 2010 is when the search warrant was
7 executed at your home in Indiana, correct --
8 A That's correct, yes.
9 Q -- and after that -- obviously both you and Matt -- I
10 mean, Matt was there that day, correct --
11 A Yes, he was.
12 Q -- realized that it was pursuant to some type of
13 pornography -- child pornography investigation --
14 A Yes, that's what the search warrant said.
15 Q -- investigation, correct?
16 A Yes, that's what the search warrant said.
17 Q Did Matt express any concern about that aspect of the,
18 quote, investigation?
19 A He didn't believe it was true.
20 Q What was his concern focused on then?
21 A His concern was that this was part of a government
22 investigation not related to child pornography.
23 THE COURT: I'm sorry. Someone coughed. Say
24 that again.
25 THE WITNESS: His concern that it was involving
34
1 those earlier organizations that he had been associated with
2 and not child pornography.
3 BY MR. SCRUGGS:
4 Q Okay. So as a result of his association with, you
5 said, Forchan, Anonymous, and so forth --
6 A Yes.
7 Q -- that was the reason, your understanding is, as far
8 as why he left for Mexico and then came back?
9 A He was scared, and he couldn't sleep that night. I
10 think he needed to clear his head, and that's -- that was
11 the reasoning.
12 Q And I guess what, a few weeks later he then seeks
13 asylum with these embassies. Is that right?
14 A That's correct.
15 Q Now, that was over two years ago, right?
16 A It is, yes.
17 Q Have you seen a change in his attitude with regard to
18 putting forth a defense in this case and the potential
19 involvement with these national security issues?
20 A Yes. He's consistently maintained that there is
21 involvement of the other groups, yes.
22 THE COURT: I don't understand what you're
23 saying.
24 MR. SCRUGGS: Let me rephrase my question then.
25 THE COURT: All right.
35
1 BY MR. SCRUGGS:
2 Q All right. Since he's been arrested -- all right --
3 A Yes.
4 Q -- back in August of 2010 and at least been able to
5 see, you know, some of the evidence against him as well as
6 the fact that there has not been any type of prosecution
7 with regard to national security matters --
8 A Yes.
9 Q -- is he more inclined to stay and put up a defense
10 than he was maybe a day or two after the execution --
11 A Yes, yes.
12 Q -- of the search warrant?
13 A Yes, yes.
14 Q I mean, his concern was the national security issues,
15 correct?
16 A Yes.
17 Q Okay. Never expressed any concern about the child
18 pornography issues in terms of being able to present a
19 defense?
20 A No. Initially when we got the search warrant, he
21 thought that was bogus. At least -- yeah, that's what he
22 said, so --
23 THE COURT: He thought that was a ruse, you mean,
24 to get his computers for the national security --
25 THE WITNESS: Yes, ma'am, that's what my
36
1 understanding was.
2 THE COURT: -- case.
3 BY MR. SCRUGGS:
4 Q And when he was stopped in August of 2010 at the
5 border, there was no warrant outstanding for him --
6 A No, there was not.
7 Q -- for any crime, correct?
8 A As far as I know, there was not, and according to the
9 information you provided, that warrant was not issued until
10 after he was detained.
11 Q According to the documentation that we received just
12 yesterday from the folks up in Maine, the reason for the
13 stop was for national security issues, not for some type
14 child pornography investigation, isn't that correct?
15 A That's what I read, yes.
16 Q It wasn't until after he was stopped, interrogated,
17 and so forth, that this child pornography warrant is issued,
18 correct?
19 A I believe that's the timeline, yes.
20 Q All right. Anyway, regardless, you stand ready, your
21 wife stands ready, to provide whatever insurance the Court
22 needs to assure his presence at the trial in this case,
23 correct?
24 A Yes, we do.
25 THE COURT: Any recross?
37
1 MS. INGRAM: No, Your Honor.
2 THE COURT: Are you going to put in the medical
3 records?
4 MR. SCRUGGS: Yes, and unfortunately this is my
5 only copy.
6 THE COURT: Is there any objection --
7 MS. INGRAM: No objection.
8 THE COURT: -- to the medical records? All
9 right. Let's run another copy of those. You may step down.
10 THE WITNESS: Thank you, ma'am.
11 THE COURT: In the meantime, Mr. Searcy, could
12 you come up here for just a minute?
13 (Pause;) (Confers off record.)
14 THE COURT: Do you have other witnesses?
15 MR. SCRUGGS: Judge, I am prepared to put on my
16 client, who will basically --
17 THE COURT: Good. I would like to hear from your
18 client.
19 MR. SCRUGGS: -- confirm. Okay.
20 (WITNESS WAS SWORN.)
21 MATTHEW DEHART,
22 having first been duly sworn,
23 was examined and testified as follows:
24 DIRECT EXAMINATION
25
38
1 BY MR. SCRUGGS:
2 Q You are Matthew DeHart. Is that correct?
3 A Yes, sir, I am.
4 Q Mr. DeHart, first and foremost here, when we walked
5 into the courtroom, we received on our table a list of
6 conditions -- I guess these are proposed special conditions
7 of bond -- that the probation office apparently has put
8 together?
9 A Yes.
10 Q Do you remember seeing this?
11 A Yes, I do.
12 Q And if you are released pending trial of this matter,
13 are you prepared to abide by each and every one of these
14 conditions?
15 A Absolutely.
16 Q The only problem is that it should say Southern
17 District of Indiana, not Illinois, right?
18 A Yes.
19 Q That's where you would reside. You would reside with
20 your dad. Is that correct --
21 A Yeah, my parents.
22 Q -- and mom. Can you assure this court that you are
23 going to appear every time the Court has you slated for an
24 appearance?
25 A Yes, I can.
39
1 Q All right. I want to back up, if I could, because
2 this is an issue that you have not been able to address thus
3 far.
4 A Yes.
5 Q That is, after January 25, 2010, okay, at that point
6 in time, you realized there was some type of child
7 pornography investigation. Is that correct?
8 A Yes.
9 Q When that search warrant was executed, you were there,
10 correct?
11 A Uh-huh.
12 Q What was your concern at that point in time with
13 regard to future criminal prosecution?
14 A I was concerned I had a lit of contact information and
15 names related to my other organization that they would
16 obtain through searching my stuff. I was concerned that it
17 would put my group at risk.
18 Q Now, with regard to these allegations of child
19 pornography --
20 A Yes.
21 Q -- you have had at least some access to materials
22 related to that over the past 21 months. And I know there's
23 a lot more information that you're still seeking, but are
24 you at all concerned about being able to successfully defend
25 those allegations?
40
1 A I'm not concerned at all, sir.
2 Q Okay. You feel like if we're provided with all of
3 your information that's been taken from you, that you will
4 be able to put forth a defense?
5 A I do.
6 Q Therefore, there's no reason whatsoever for you to run
7 off, correct?
8 A No, there isn't.
9 MS. INGRAM: Objection. Leading.
10 THE COURT: Sustained.
11 MR. SCRUGGS: All right. Sorry.
12 BY MR. SCRUGGS:
13 Q Do you have any reason to fail to appear for court
14 now?
15 A No, sir, I don't.
16 Q All right. Obviously, in the past 21 months there's
17 been no indictment or prosecution with regard to these
18 national security issues, correct?
19 A No, there hasn't.
20 Q All right. Now, you did go to Mexico, came back, and
21 sought out asylum?
23 THE COURT: Sustained.
24 BY MR. SCRUGGS:
25 Q Why did you do these things? Why did you go to Mexico
41
1 a couple of days later, then go seek asylum; what was in
2 your head at that time?
3 A Can I address each one?
4 Q Yeah, sure.
5 A As in terms of Mexico, I was in panic mode. I was
6 very concerned they were going to get other information that
7 they missed the first time which had to do with individuals
8 in the group, like I said.
9 I didn't know how I would be able to protect those
10 people and their information they had. I didn't see any way
11 to do that in this country.
12 I thought I was under another investigation with
13 regards to Anonymous, and I really didn't know what I was
14 doing at the time.
15 As for the asylum, I feel completely politically
16 disillusioned being here. I was very upset at the way the
17 government has been prosecuting members of our group.
18 THE COURT: When you say your "group", you mean
19 Anonymous?
20 THE WITNESS: I mean Anonymous and the subgroup
21 known as Anti-Sect.
22 THE COURT: Okay.
23 THE WITNESS: As a group, we were very concerned
24 with extra legal activities the government was taking
25 against the group, what we perceived, and I didn't think I
42
1 could have a fair shot here.
2 BY MR. SCRUGGS:
3 Q Okay. So after that, you went to Canada, why did you
4 go to Canada?
5 A I wanted to start a normal career there. I was hoping
6 I could resume life. I was hoping that by severing myself
7 from the group and being there, things would stop.
8 Q Now, August 6, 2010, you come back across the border,
9 why is that?
10 A I had to renew my visa. I had to get a student visa.
11 It's a six month visa.
12 Q You were stopped, you were detained at that point in
13 time, correct?
14 A Yes, I was.
15 Q Sort of summarize what happened over the course of the
16 next couple of weeks.
17 A Let's see. I think I crossed about 8:00 in the
18 morning. There's three land bridges in the United States
19 from Saint Stephen to Calais.
20 I crossed at one of the bridges. I made it to the
21 border office, and they told me my passport had been
22 flagged, and they asked me to sit down.
23 They told me I would be on my way soon, they had to
24 ask me a few questions. They dumped out my backpack and
25 patted me down. They put me in handcuffs and made me wait
43
1 for several hours.
2 After waiting, an FBI or ICE van took me to a
3 detention facility, and I was locked up in a holding cell.
4 My blood was either drawn or I was given something in my
5 left arm.
6 I was interrogated. I know the papers said 3:00, but
7 I think it started at 12:00, and they started asking me
8 questions about the group, and that's where that proceeded
9 that day. I didn't feel of right mind that entire day.
10 And that evening I had broken down about 7:00 when
11 they brought me to Penobscot, which is the county jail. I
12 remember waking up in an ambulance that night.
13 I barely remember getting a CAT scan. I guess they
14 brought me back probably early in the morning of the 7th.
15 I do not remember being interrogated that day, but the paper
16 says I was.
17 I was put in a dry cell, which is a cell without a
18 toilet or sink. I was given a medication that they told me
19 was Thorazine.
20 I was not allowed to have anything else to drink
21 because they said I swallowed a thumb drive, and they were
22 concerned about me going to the bathroom or having any food.
23 I asked for water. They didn't give me water. They
24 gave me the Kool Aid that went along with my Thorazine.
25 That's the only time I had anything to drink.
44
1 They beat on doors constantly every 15, 20 minutes,
2 every time I tried to go to sleep.
3 I was not allowed out. When I asked to go out, I
4 asked to talk to my lawyer, which I had a lawyer from
5 Indiana that we had currently seen -- I mean, previously
6 seen -- this was the 7th -- I had not been arraigned. I
7 didn't have a court-assigned lawyer then.
8 They wouldn't let me talk to a lawyer. They wouldn't
9 make any phone calls. I repeatedly asked to do that.
10 That Sunday I remember being interrogated, more
11 questions about the group, questions about -- I mean, I
12 remember generalities about Air Force stuff.
13 As far as the next week, I don't remember much at all.
14 Again, I was in the same situation in that cell. I was
15 concerned, I couldn't talk to my parents tell them how I was
16 doing.
17 And after that, they moved me to -- let's see
18 Cumberland County, I think, Portland, Maine. I was
19 interrogated again at that facility by two special agents of
20 the FBI that flew up from D.C. I don't recall much about
21 that either.
22 And then they brought me to Stratford County, New
23 Hampshire, and interrogated me again. Then that was the
24 last time I was interrogated. I think it was a total of
25 five or six times.
45
1 Then I was brought to NBC Brooklyn where they had a
2 bubble pack of what was the rest of my Thorazine, and they
3 handed it to me, and that's where I saw they were giving me
4 Thorazine the whole time.
5 Q So how long did it take you from August 6, 2010, to
6 actually got Nashville or Bowling Green, I should say?
7 A A month and three days.
8 Q All right. And during that time period, you were
9 taking medication you have never taken before. Is that
10 correct?
11 A I have never taken Thorazine.
12 Q All right. And do you remember some of the events but
13 not all of them? Is that correct?
14 A Yes.
15 Q Now, you have had the opportunity to review some of
16 the reports that have been provided recently from the law
17 enforcement people in Maine. Is that correct?
18 A Yes.
19 Q And did you see on there where you did give
20 information regarding e-mail addresses, and passwords, and
21 so forth?
22 A Yes.
23 Q All right. Now, what is the significance of those
24 e-mail addresses and passwords?
25 A Those are e-mail addresses I used to communicate with
46
1 my group, with different people in the group, different
2 people in the game World of the Warcraft. I mean, they are
3 miscellaneous things.
4 Q Did those e-mail addresses have exculpatory material
5 on them related to this case, you think?
6 A It had server logs that would have helped in this
7 case, yes, sir.
8 Q We have still been searching for those, correct?
9 A Absolutely.
10 Q Yeah. Anyway, moving on, if we could, all right --
11 A Yes.
12 Q -- since you have been incarcerated, how have you been
13 treated at the facility where you are in Warren County?
14 A In terms compared to everyone else, about the same,
15 but in terms of specific medical treatment, I have been
16 denied my ADHD medication.
17 I have put in three or four requests saying I needed
18 Adderall, or something similar, Vivance or some Concerta
19 perhaps, and they said they can't give me anything of that
20 sort.
21 The one nurse said they don't treat ADHD at that
22 facility. They tried me on several antidepressants, one of
23 those being Remeron.
24 I was on that, but I had an understanding with one
25 nurse that I could take it later in evening because they
47
1 have two prescribe time for giving me medication. I was
2 doing that for three or four weeks, and then randomly they
3 told me I was hoarding medication and threw me in the hole.
4 That's an arbitrary process. If you run the shower
5 too long or you step on your razor blade or basically you
6 just irritate the guards, they throw you in 24 hour
7 isolation.
8 The sunlight is a big issue, getting outside is a big
9 issue, but, I mean, the whole thing is crappy. It's --
10 Q Is that affecting your ability to assist in your
11 defense?
12 A Absolutely, without a doubt. I can't write notes
13 without worrying about people copying them down. At that
14 time I was put in the hole, I had notes on my person. They
15 seized them downstairs and made a photocopy of them. I
16 believe Kim Hodde mentioned that before.
17 I can't type on my computer without worrying about my
18 computer discovery which was provided -- without worrying
19 about it being monitored.
20 I can't have a phone call without being monitored
21 especially discussing issues like this.
22 Again -- I see you once a week or once every two
23 weeks, again, it's a far drive for my defense.
24 I just can't -- it's very hard to think without my
25 medication.
48
1 Q Again, if you are released, are you prepared to comply
2 with whatever conditions of release that are set out in the
3 document --
4 A Absolutely.
5 Q -- prepared by the probation officer?
6 A Yes, sir.
7 Q No desire -- do you have any desire to seek asylum
8 someplace anymore?
9 A Not anymore, no.
11 THE COURT: Overruled.
12 MR. SCRUGGS: All right. I pass the witness.
13 THE COURT: All right.
14 MR. SCRUGGS: Judge, I guess can we make this an
15 exhibit?
16 THE COURT: Any objection to this exhibit?
17 MS. INGRAM: I haven't seen it.
18 THE COURT: You said Ms. Daughtrey was reviewing
19 it, Ms. Ingram.
20 MS. INGRAM: She was reviewing the medical
21 records. This is actually the bond conditions that I
22 haven't seen.
23 THE COURT: Oh. I'm sure Mr. Searcy gave it to
24 the government as well.
25 MS. INGRAM: He --
49
1 MS. DAUGHTREY: He gave us it to us as we walked
2 into the courtroom.
3 THE COURT: We won't make that an exhibit. I
4 don't think we -- have we admitted the medical records? Was
5 there an objection? I can't remember. Do you object?
6 MR. SCRUGGS: No, we need to do that.
7 MS. INGRAM: There's no objection, Your Honor.
8 THE COURT: All right. So they are admitted as
9 Exhibit 3. Go ahead.
11 evidence.)
12 CROSS-EXAMINATION
13 BY MS. INGRAM:
14 Q Back in January of 2010 when the search warrant was
15 executed, you were aware that the information that you are
16 going to be investigated for based on search warrant was
17 child pornography, right?
18 A Yes.
19 Q Did you believe that was a ruse?
20 A I did.
21 Q So you didn't believe that you were going to be later
22 charged with production of child pornography?
23 A I did not believe that.
24 Q But you were aware that you were lying and making
25 threatening phone calls to the victims family, right?
50
1 A I wasn't making threatening phone calls.
2 Q You weren't 17 years old, were you?
3 A No.
4 Q Do you remember telling the victim's mother that you
5 were 17 years old?
6 A Yes, I do.
7 THE COURT: Now, we're getting into the offense,
8 and he didn't really testify about any contact with the
9 victim's family, so it's beyond the scope, and I also am not
10 going to give you free-wheeling discovery. We're focused on
11 detention issues only.
12 MS. INGRAM: Yes, Your Honor. I was addressing
13 the portion only as it relates to the issue of danger to the
14 community and harassment to family members for purposes of
15 detention.
16 THE COURT: Well, ask him about future conduct
17 rather than admissions of past conduct.
19 THE COURT: Okay.
20 BY MS. INGRAM:
21 Q When you were speaking to investigators, do you
22 remember telling them about Jacob Diel?
23 A No, I do not.
24 Q Have you had an opportunity to review that report?
25 A Tentatively. I got five minutes.
51
1 Q Do you know who Jacob Diel is?
2 A He's an individual at the Indiana Air National Guard.
3 Q And did you have reason to believe that he was
4 involved in some sort of activity that was illegal?
5 A Not necessarily.
6 Q So is this the investigation, that report, that you
7 don't remember talking to law enforcement?
8 A I think so, yes.
9 Q Do you remember which time you did remember speaking
10 to law enforcement?
11 A At the border.
12 Q Okay. Which border?
13 A U.S. Canada border.
14 Q Okay.
15 A Well, actually starting with the search warrant. That
16 would be the first time I spoke with law enforcement.
17 Q Do you remember speaking to them then?
18 A Yes.
19 Q Okay. Do you -- and do you remember the U.S. Canada,
20 when you spoke to law enforcement there?
21 A I do.
22 Q And you don't remember any other --
23 A I remember being brought to the room.
24 Q -- interviews?
25 A I barely remember the different sets of agents. There
52
1 were a lot of very specific technical questions that I don't
2 remember.
3 Q You remember that you were asked technical questions,
4 but you don't remember what they were, is that what you're
5 testifying to?
6 A This is true.
7 Q You have never been given top security clearance, have
8 you?
9 A I was approved for the background check. I was never
10 validated on my ID. Basically you have to use your ID to
11 log into the computer.
12 Q So when we have heard that you have had top security
13 clearance, that's not true. You were cleared for a
14 background investigation for that top security clearance.
15 Is that correct?
16 A I didn't differentiate between that, no, ma'am.
17 Q Did you receive top security clearance?
18 A Yes, ma'am.
19 Q May I hand the witness what we'll mark as Exhibit
20 Number 1? Do you recognize that?
21 A Yes, ma'am.
22 Q What is it?
23 A It's a -- that's my separation report.
24 Q Is there a portion on there that references the top
25 security clearance? I believe it's circled.
53
1 A Yes.
2 Q Does that say that you are cleared for a background
3 investigation for top security clearance?
4 A I think that's what it says.
5 Q And you are telling the Court that you, in fact, got
6 that top security clearance?
7 A I'm not really aware of difference between passing the
8 background check and actually having the clearance. I'm not
9 aware of the difference between the two. That's not my
10 expertise.
11 Q Do you have any documentation to show that you have
12 top security clearance or did at one point before you were
13 discharged?
14 A Besides this, no.
15 Q Why did you flee to Mexico after the -- the day after
16 the search warrant was executed?
17 A I was concerned that they had missed things that have
18 names and information on there. I thought they were going
19 to come back and get that. I had no feasible way to secure
20 that. I didn't know what to do with it. I couldn't see
21 myself doing that here.
22 Q Why did you choose Mexico?
23 A It was the closest, easiest other country to get to.
24 Q And was Canada also the other closest, easiest country
25 to get to besides Mexico when you went there?
54
1 A I suppose it would have been.
2 Q And do you remember hiding your computer in a
3 microwave?
4 A I do.
5 Q When you went to school up in Canada, your parents
6 actually set you up to go to school there, didn't they?
7 A They paid for it, yes.
8 Q And you first tried French, right?
9 A I did.
10 Q That lasted only eight weeks, isn't that true?
11 A That was the completed course. It was an eight week
12 course.
13 Q You could have continued on with the bilingual
14 education, but you chose not to, isn't that right?
15 A That's all my parent paid for.
16 Q Then they decided to pay for welding because I'm sure
17 that's what you wanted to do, right?
18 A Yes.
19 Q Has anyone from the government ever spoken to you in
20 detail about this website that you're so concerned about?
21 A On IRC, yes.
22 Q Where is that?
23 A Internet relay chat. It's whatever server is hosting
24 it.
25 Q Where is the report that references that?
55
1 A I don't have a report that references that.
2 Q So what you're telling the Court is that you remember
3 talking about it, but no one ever felt the need to put it in
4 paper?
5 A In terms of this specific case or?
6 Q I'm talking about any of these reports that we have
7 been speaking of.
8 A Will you, please, ask the question again?
9 Q Yes. Do you have any reports or information that
10 shows that you discussed these websites that you are
11 concerned about?
12 A No, I do not.
13 Q May I hand the witness what we'll mark as Government's
14 Exhibit 2?
15 MR. SCRUGGS: May I see what it is she's handing?
16 MS. INGRAM: It's this investigative report from
17 yesterday.
18 (Counsel confer.)
19 MR. SCRUGGS: Judge, I would note that I just
20 received that yesterday, and he's only had a chance to look
21 at it about 30 minutes ago.
22 THE COURT: Okay.
23 BY MS. INGRAM:
24 Q Can you take a look at that?
25 A Would you like me to review the whole thing?
56
1 Q No, I just want to you take a look at it.
2 A Okay.
3 Q Do you recognize that?
4 A From over there.
5 Q Yes. So does this appear to be the FBI report dated
6 August 26, 2010?
7 A This is what it's labeled, yes, ma'am.
8 Q If I can refer you to page 4, please, at the top where
9 it references Jacob Diel?
10 A Yes.
11 Q Can you review that, please, and tell me when you
12 finish looking at that paragraph?
13 (Pause.)
14 A I have.
15 Q And you have had a chance to look at this, as you just
16 mentioned, right?
17 A Yes.
18 Q It talks about what you said about Diel, isn't that
19 true?
20 A Yes, it does.
21 Q Is that what you told the FBI?
22 A I'm assuming so.
23 Q Have you been made aware that Jacob Diel has offered
24 for his hotel to be searched?
25 A No.
57
1 Q Did you know that he offered his computers to be
2 seized and searched?
3 A I'm not aware of that.
4 Q Did you know that he offered to take a polygraph in
5 order to prove that none of this information was, in fact,
6 true?
7 A I'm not aware of that.
8 Q Do you remember telling Pretrial Services that you
9 lived in on-campus housing?
10 A I don't remember that.
11 Q Do you remember telling anyone that you lived in
12 on-campus housing?
13 A I don't remember any of my discussions with Pretrial
14 Services or that discussion where I lived.
15 Q So when you say you never remember having any
16 discussions with Pretrial Services, you don't remember
17 speaking to them at all --
18 A I don't --
19 Q -- or you don't remember speaking to them specifically
20 about your housing situation?
21 A I don't remember speaking to them at all.
22 MS. INGRAM: May I have just a moment?
23 THE COURT: Yes.
24 (Pause.)
25 MS. INGRAM: I have nothing further.
58
1 THE COURT: Any redirect?
2 MR. SCRUGGS: No.
3 THE COURT: When you said you fled to Mexico
4 because you were afraid they would come back and get
5 information they missed, what did you mean?
6 Did you take -- you took a computer with you, perhaps,
7 that had that information on it? What are you talking
8 about.
9 THE WITNESS: They were portable memory storage
10 devices, Your Honor, thumb drives.
11 THE COURT: Thumb drives?
12 THE WITNESS: Yes, ma'am.
13 THE COURT: And you took them with you to Mexico?
14 THE WITNESS: I did, Your Honor.
15 THE COURT: And they missed these in the search
16 of your house?
17 THE WITNESS: Yes, they did.
18 THE COURT: Where were they?
19 THE WITNESS: They were inside of a gun case.
20 THE COURT: Okay. And these were about your
21 group, not about child pornography?
22 THE WITNESS: They were about the group, not
23 about child pornography.
24 THE COURT: Okay. All right. You may step down.
25 MS. DAUGHTREY: I'm sorry. I didn't hear that
59
1 last --
2 THE COURT: He said they were about his group;
3 the thumb drives he took to Mexico were about his group, not
4 about child pornography.
5 Okay. You may step down. Any other witnesses?
6 MR. SCRUGGS: No, Your Honor.
7 THE COURT: Does the government have any
8 witnesses?
9 MS. INGRAM: Yes, Your Honor, we do. Would you
10 like us to proceed?
11 THE COURT: Yes, I would.
12 MS. INGRAM: United States calls Detective Brett
13 Kniss.
14 (WITNESS WAS SWORN.)
15 BRETT KNISS,
16 having first been duly sworn,
17 was examined and testified as follows:
18 DIRECT EXAMINATION
19 BY MS. INGRAM:
20 Q Please state your name.
21 A Brett Kniss.
22 Q Where are you employed?
23 A Franklin Police Department.
24 Q In what capacity?
25 A Detective with the Internet Crimes Against Children
60
1 Task Force.
2 Q How long have you been with that task force?
3 A Five years.
4 Q As part of your duties, did you become involved in the
5 investigation against Matthew DeHart?
6 A Yes, I did.
7 Q How did that happen?
8 A In January of 2009, the parents of one of the victims
9 involved in this case reported this case to our police
10 department, which I was assigned to investigate.
11 Specifically, they found that their son had been
12 sending images, pornographic images, of themselves to a
13 person they believed at the time was named Matthew DiMarco.
14 Q And do you remember about what time frame this was
15 that your agency was contacted?
16 A It was January of 2009 when we were contacted, and
17 they had found that their son had been sending this Matthew
18 DiMarco images of himself from early 2008.
19 Q What did you do as regarding the contact that the
20 defendant was having with the victims in this case?
21 A I'm sorry. Can you --
22 Q Did you get involved with any phone calls?
23 A Yes, I did get involved with phone calls.
24 Q And please tell the Court what happened with that.
25 A One of -- both of the victims involved in this case,
61
1 as far as Franklin is concerned, had been receiving phone
2 calls from -- with who they believed to be Matthew DiMarco.
3 And at one time, one of the victims's mothers had been
4 in contact or had talked to him, and she was at the police
5 station, and we did a controlled phone call of her talking
6 to Matthew DeHart.
7 Q Was that on January 7, 2009?
8 A I believe so.
9 Q Can you tell the Court what happened in this phone
10 call?
11 A During the phone call, the victim's mother asked
12 Matthew why he was contacting her son and the other victim,
13 why he was giving them gifts, why he was traveling to
14 Franklin, Tennessee to meet with both her son and the other
15 victim, and why he was contacting them in general as to how
16 -- what their relationship was, and asked him not to contact
17 them anymore.
18 Q Did the defendant state how old he was in this phone
19 call?
20 A Yes, he stated he was 17 years old.
21 Q Did he provide a false address in New York?
22 A Yes, he did.
23 Q Did you make any other phone calls or were present
24 during any other phone calls that were made?
25 A Yes, I was.
62
1 Q And please tell us about that.
2 A One night shortly after the first phone call that we
3 made in a controlled manner, I was at the house of the
4 second victim in this case. And during that time while I
5 was talking to them, they received a phone call on the
6 caller ID which stated it was a law firm from New York City.
7 He received the phone call which immediately hung up,
8 couldn't make a connection. The phone call came back, and
9 at this time I was able to record the phone call that the
10 victim's mother had with the person at other end, who we
11 believed at the time to be Matthew DeHart.
12 Q Did one of the victims actually identify the defendant
13 on that phone call?
14 A Yes, the second victim did identify the voice on the
15 other end of the phone line as Matthew DeHart or who we
16 believed to be Matthew DiMarco at the time.
17 Q Were any other phone calls made?
18 A There was a -- after the phone call which ended where
19 we believed it was -- or which stated on the caller ID it
20 was from a law firm in New York City, we received another
21 phone call within the next 10 to 20 minutes from who we
22 believed to be at the time Matthew DiMarco asking for the
23 victim's son.
24 Q So was the defendant --
25 THE COURT: Victim's son?
63
1 THE WITNESS: I'm sorry, the victim, the second
2 victim.
3 BY MS. INGRAM:
4 Q Was the defendant using different what's called
5 spoofing numbers?
6 A For the first phone call he did from the -- which made
7 it look on the caller ID as if it was a law firm from New
8 York City, but on the second call, where he was portraying
9 himself being Matthew DiMarco, he did not use any spoofing.
10 Q When you were conducting your investigation, were you
11 able to confirm the defendant's connection to a spoofing
12 account?
13 A Yes, we had subpoenaed the cell phone records for the
14 suspect. Once we received those subpoena results back, I
15 noticed a 1-866 number being dialed several times.
16 We -- I did a reverse lookup to that and found it to
17 be Spoofcard.com. We subpoenaed the records to Spoofcard
18 and realized that Matthew DeHart had a lengthy account and
19 history with Spoofcard.com.
20 Q And what about this voice recognition, was -- could
21 you tell the defendant trying to disguise his voice in some
22 of these recorded calls?
23 A He might have tried to, but we were able to
24 distinguish it very easily as being Matthew DiMarco versus
25 somebody else trying -- there's no separation between the
64
1 two. It was clearly Matthew DeHart.
2 Q Was that also with the help of the victims?
3 A That is correct.
4 Q Are you aware of any contact that the defendant has
5 made recently or after this January 2009, these phone calls,
6 with the victims' families?
7 A The victims' families had received different phone
8 calls from different places, many times that they didn't --
9 they didn't answer them, and most of them were more in a
10 harassing manner.
11 We have received -- they have received phone calls as
12 late as September of 2010 which one of the victims stated he
13 heard something in the background like a lot of noise, from
14 a phone number he didn't recognize, asking about things that
15 were personal to him that he knew and that he had mentioned
16 to Matthew DeHart in his prior contact with him.
17 Q Have you done any sort of surveillance or protection
18 for the families at any point during this investigation?
19 A Yes, I did.
20 Q And can you please tell the Court about that?
21 A In January of 2009 both families were very concerned
22 for their safety, so concerned that they -- that the suspect
23 who he was portraying himself as a mobster son, Matthew
24 DiMarco, who was into several mafia dealings in larger
25 cities, mainly New York, they believed that he was going to
65
1 come down and cause bodily harm to them.
2 They were so concerned I parked a patrol car in front
3 of one of the victims' houses, and I had requested what's
4 called a trap trace order, which a judge signed a order for
5 the cell phone account for us to receive an update through
6 the GPS system or through the cell tower systems whenever
7 that cell phone was moved from different cell tower to
8 different cell tower or started moving in any other
9 direction other than around the Newburgh, Indiana, area, we
10 would be receiving notification that it was moving.
11 Q And did that surveillance go on for several weeks?
12 A Yes, it did.
13 Q Are you aware of any firearms that the defendant had
14 at any point in time with one of the victims?
15 A While interviewing one of the victims, the victim
16 mentioned that during one of the occasions approximately
17 November 2008, in that time frame, close to Thanksgiving,
18 the -- Matthew DeHart did drive to Franklin, Tennessee, and
19 picked up one of the victims and drove him around the city
20 and took him to a gun range in Murfreesboro, Tennessee.
21 Q And did the victim hold the firearm or shoot it?
22 A Yes, both.
23 Q Did the victim's parents know about this at the time?
24 A Not at the time. They found out about it later from
25 him.
71
1 earlier --
2 A Yes.
3 Q -- throughout all of those calls that were made, he
4 never threatened any type of physical harm to these folks,
5 did he?
6 A It was implied.
7 Q Basically, he was talking about potential legal action
8 against them and not physical harm, correct?
9 A He did state legal action, that is correct.
10 Q All right. That's all.
11 THE COURT: Any redirect?
13 BY MS. INGRAM:
14 Q There was some questioning about a Heather Englasius,
15 I believe. Is that the same Heather, Englasius?
16 A I'm not aware of Heather Englasius. Today is the
17 first day I have seen that name.
18 Q The --
19 THE COURT: The Lipscomb student, is what you're
20 talking about?
22 BY MS. INGRAM:
23 Q Are you also aware that another Heather -- based on
24 what you just mentioned, that another Heather was also used
25 as someone who the defendant was going to go see in Mexico,
72
1 that he had a friend there named Heather?
2 A I was not aware of that until today.
3 Q But have you become aware of that in reviewing
4 reports?
5 A No.
6 Q May I provide the witness what I believe is marked as
7 Government's Exhibit 2?
8 THE COURT: For identification only?
9 MS. INGRAM: Yes, Your Honor. Thank you.
10 BY MS. INGRAM:
11 Q If I can refer you to the fourth paragraph?
12 A Yes.
13 Q Have you had an opportunity to review that paragraph?
14 A Yes, I have.
15 Q And are you aware of, after reviewing that, a Heather
16 the defendant relied on as his contact and a friend that he
17 went to visit in Mexico?
18 A I was not aware of that until today after reviewing
19 this document.
20 MS. INGRAM: I have no further questions.
21 THE COURT: Any additional cross?
22 MR. SCRUGGS: No.
23 THE COURT: You may step down.
24 MR. SCRUGGS: Judge, let me ask one other
25 question.
75
1 believed to be the defendant at any point?
2 A Yes, at Franklin Police Station.
3 Q And what did that phone call involve?
4 A Speaking with him and asking him why he was, you know,
5 contacting my son, and that we asked him not to continue to
6 contact him, I asked him how old he was. He was very
7 giggly, and I even asked to speak to his mom.
8 Q Did he let you?
9 A No, he said she was out.
10 Q Did you ask him about the gifts that he was giving?
11 A At that point, you know, honestly, I don't remember
12 because it's quite sometime ago now.
13 Q Was it a lengthy conversation that you had with him?
14 A Not terribly. Maybe five, ten minutes.
15 Q And during that conversation did he tell you where he
16 lived?
17 A He may have. I can't remember, honestly.
18 Q Are you afraid of the defendant?
19 A Yes, I am.
20 Q Why?
21 A Because he has repeatedly lied, and he called our
22 house and used different phone numbers pretending to be
23 different people.
24 My son is -- was very afraid of him initially, in
25 particular. When he actually heard Matthew Dehart's voice
76
1 on our answering machine, he turned as white as a ghost.
2 He said you don't want to mess with him, he's not --
3 he's not right.
4 Q Have you or your son had any contact or any unusual
5 things happen to you in the recent past that you believe may
6 have been attributable to the defendant?
7 A Possibly phone calls, yes.
8 Q And what happened with those phone calls?
9 A Well, very often it would just be an odd number that
10 would come up. We really wouldn't know exactly who it was
11 or there would be the time that he did call, when he
12 spoofed, and he pretended to be a lawyer.
13 Another time we got a phone call, and it was the
14 school that supposedly Matthew DiMarco was attending,
15 different things of that nature.
16 THE COURT: When was all this?
17 THE WITNESS: That was at the beginning when --
18 THE COURT: 2009?
19 THE WITNESS: -- things were first being
20 discovered, yes.
21 And then he was also on our property.
22 BY MS. INGRAM:
23 Q Has anything happened since that early 2009 time frame
24 that causes you concern?
25 A Well, not as much because he's been incarcerated, but,
78
1 A Well, there was the incident with the T-P'ing, which I
2 think it was later on in that year.
3 Q Is that what prompted all of this in terms of the
4 concern about Mr. DeHart, the toilet paper incident?
5 A It was part of it.
6 Q Okay. Now, as far as any of these other calls are
7 concerned that you talked about that you're concerned about,
8 you can't say one way or the other whether or not that was
9 Matthew DeHart, can you?
10 A I'm sorry?
11 Q With regard to these other calls that you say occurred
12 I think after January of 2009?
13 A We cannot say definitely, but they were of the same
14 type of nature, just odd calls.
15 And at one point my son was texted by what he thought
16 was a female, but he did not respond. It was no one that he
17 knew.
18 Q And were you aware that there was a photo found of a
19 nude female on his phone?
20 A No.
21 Q Okay. Now, do you know for a fact that your son has
22 actually ever met with Matthew DeHart face-to-face?
23 A My son said that he did meet with him when he was 12,
24 and at that point in time, Matthew DeHart gave him a video
25 and what was -- what he was told was a real diamond in a
80
1 Q And with regard to the phone call, the controlled call
2 that you made to Mr. DeHart pursuant to this investigation,
3 I'm sure the officers tried to get you to get him to talk
4 about inappropriate sexual contact with your son, didn't
5 they?
6 A Actually, no, they did not. They did not really tell
7 me what to say.
8 Q All right. But that certainly would have been one of
9 the concerns that you had in your mind, correct?
10 A Well, it definitely was a concern.
11 Q And Mr. DeHart never made any type of statements,
12 admissions, or anything, about any type of inappropriate
13 sexual contact with your son, correct, during that phone
14 call?
15 A Well, not during the phone call.
16 Q Okay.
17 MR. SCRUGGS: That's all.
18 THE COURT: Anything else?
19 MS. INGRAM: May I have brief redirect, Your
20 Honor?
21 (Pause.)
23 BY MS. INGRAM:
24 Q Did you get any concerns that the defendant was
25 involved -- his father was involved in the mob?
81
1 A That's what my son was told.
2 Q Do you know who told him that?
3 A It was -- would have been Matthew DeHart as Matthew
4 DiMarco.
5 Q And the World of War Craft that was just discussed,
6 you mentioned there was some violent expletives that you
7 looked at, can you be more specific about the nature of the
8 communication that the defendant was having with your son
9 just on the World of War Craft?
10 A Well, it's a live chat situation, and we happened to
11 be going by the room, and we heard my son speaking to him.
12 And Matthew DeHart was saying different expletives and
13 was very sort of almost domineering in his tone and in the
14 way that he was speaking.
15 And we -- I immediately took notice and my husband did
16 as well because he also heard it, and we were very concerned
17 about that; well, who are you talking to, and we were very
18 concerned.
19 Q And there was some questioning about the sexual nature
20 with your son, and you mentioned not in the phone calls, but
21 you have been made aware of other information that the
22 defendant was involved in some sort of sexual relationship
23 with your son, right?
24 THE COURT: I'm sorry. Repeat that question.
25 THE WITNESS: Yeah, thank you.
83
1 We're in recess.
2 MS. DAUGHTREY: Your Honor, Ms. Ingram evidently
3 has a doctor's appointment at 12:30 that she expects to last
4 until 1:30. If Your Honor is available at 2:00, would that
5 be a possible reconvening time?
6 THE COURT: Let's see. Is that all right with
7 you, 2:00?
8 MR. SCRUGGS: That's fine.
9 THE COURT: 2:00 is fine.
10 MS. DAUGHTREY: Thank you very much.
11 (Break.)
12 THE COURT: I have a question about the medical
13 records. You all seem to indicate that these medical
14 records had some indication he had been given Thorazine. I
15 don't find it any anywhere in here.
16 MR. SCRUGGS: No, the medical records do not
17 reflect he was given Thorazine. That's what his
18 recollection of the medication was that he was given.
19 THE COURT: I thought somebody said we were
20 finally able to confirm that he was given Thorazine when he
21 got the medical records.
22 MR. SCRUGGS: No, just that he had been diagnosed
23 with that psychotic episode.
24 THE COURT: Okay. All right. I'll hear any
25 argument on detention that anybody wishes to make.
84
1 MR. SCRUGGS: May it please the Court, we're
2 asking the Court, once again, to consider Mr. Dehart's
3 release pending the trial of this matter.
4 I think that since I have gotten involved in the case,
5 we have been very diligent in pressing the government for
6 discovery.
7 And when I say "government", I say that in a generic
8 sense. I'm not blaming this -- the folks standing behind me
9 because obviously the Court has seen the difficulty that
10 they have had in trying to get some of this information.
11 THE COURT: Yes.
12 MR. SCRUGGS: So that's what I'm talking about.
13 And it's taken a long time, and the Court really was not
14 aware, I don't believe, of the complexity of this entire
15 case.
16 And when the Court was finally made aware of what went
17 on in August of 2010 in terms of why Mr. DeHart was stopped
18 and interrogated, and so forth, I mean, that's what this
19 case was really and truly all about, is what -- at least
20 from his perspective.
21 Then when it gets back here, in order for him to have
22 any chance of presenting his defense, it's critical that he
23 has access to all the technological tools that are possibly
24 available.
25 That would mean the hardware, number one, that he
85
1 needs copies of and then the expert assistance to analyze
2 that hardware to corroborate what his version of these
3 events is with regard to the sex thing, so to speak.
4 But in the meantime, he's been locked up for almost
5 two years, and I don't think in any of the prior detention
6 hearings the Court ever heard in as much detail what this
7 case is really about.
8 THE COURT: Well -- and I have had an opportunity
9 to review in camera documents that also reflect some of
10 that.
11 MR. SCRUGGS: So, anyway, the case is definitely
12 in a much different posture.
13 Now, you know, if we had to try the case next week, I
14 guess we could. If the Court said go to trial, we'll go to
15 trial. But if we're going to do it right, it's going to
16 take some time, and I think the Court is aware of that.
17 We have had the opportunity to hear, I think, briefly
18 from Agent Kniss, and my expert Mr. Kempvanee with regard to
19 what all is going on, what has to be done. They have met.
20 All right. We still don't have answers with regard to
21 whether the government is going to give us a mirror copy of
22 everything as opposed to select things in terms of these
23 drives.
24 Now, I don't think they even have them yet so that
25 they can review them themselves as to whether or not there's
86
1 anything objectionable on these other items. But,
2 regardless, there's still much, much work that needs to be
3 done, and in the meantime Mr. DeHart sits in jail.
4 So as far as get back to release, I believe, Judge,
5 that we have shown that, you know, Mr. DeHart did some
6 stupid things after the January 25, 2010 search warrant was
7 executed as far as going to Mexico, and the embassies, and
8 stuff like that, but I think that a lot has happened since
9 then.
10 There's not been any kind of prosecution with regard
11 to national security issues, even though we have been led to
12 believe that could be happening. There's not been any other
13 prosecutions in any other jurisdictions. This is all that's
14 left. This is all that's holding him.
15 And he's more than willing to stay and fight and
16 defend these cases if he's given access to the materials
17 necessary to provide his defense.
18 His father and mother are here. They are willing
19 basically to put up everything they own. There is modern
20 technology in terms of electronic monitoring that can keep
21 track of where he is every second of the day, and I would
22 respectfully submit that he has no reason whatsoever to not
23 show up for court now because we can defend this case, and
24 we can win this case.
25 So we are respectfully asking the Court to let him out
87
1 until we get this case ready for trial, which probably is
2 going to be, I would say, three to six months, is what we're
3 looking at.
4 THE COURT: Okay. Government?
5 MS. INGRAM: It sounds like the crux of the
6 argument is that because discovery is taking an extended
7 period of time, the defendant should be released, because he
8 needs access to hard drives and expert assistance he needs
9 to be released. And if that were true, all defendants would
10 be released to help out in their defense.
11 This defendant remains a flight risk. And I know Your
12 Honor wasn't as concerned prior about the defendant posing a
13 threat or danger to the community, but the victims' family
14 are in fear of this defendant. They are in fear for several
15 reasons.
16 This defendant knows how to spoof. He does it. He
17 did it in this case. He has accounts, a history, lengthy
18 history the agent testified to, of spoofing the accounts.
19 The intimidation that he used involved, you know,
20 referencing that his father was a mobster; that he was
21 living in New York, had a law firm, attorney, in New York
22 calling.
23 And I realize that that hadn't happened in a
24 significant period of time, but there is still concern that
25 this defendant is unstable and unpredictable.
88
1 The crux of our argument would be the flight risk, and
2 Your Honor heard a little bit more about that today and how
3 he fled to Mexico, admittedly, because it was the closest
4 country that was not the United States.
5 And not only did he flee the day after the search
6 warrant was executed, he fled with evidence. He fled with
7 thumb drives that he had on him and left the country. When
8 he decided to come back on his own, he did.
9 Then he admitted that Canada was the other closest
10 country to the United States that was not in this country,
11 and he knew that an investigation was going on, whether the
12 child pornography investigation, he acknowledges that that's
13 something that was real, we know that the defendant was
14 communicating with these boys, pretending to be a 17 year
15 old. And we know he was calling them and pretending to be a
16 lawyer so he would stay out of trouble.
17 So the United States' position is that he knew very
18 well that this investigation would involve child
19 pornography; in fact, it did.
20 The defendant claims that there's no concern about the
21 investigation of child pornography. I just address in him
22 calling the parents to discourage them, intimidate them,
23 from contacting the police.
24 The Court has been made aware of several lies that the
25 defendant has told. And today when he took the stand, some
89
1 of those, he conveniently couldn't remember. For example,
2 when I was asking him about staying in a dorm, if you
3 remember us talking to Pretrial Services about that, he
4 couldn't recall. He couldn't recall his involvement with
5 Diel when the FBI spoke to him about that.
6 So these that were shown to be inaccurate, in
7 consistent, he conveniently couldn't remember.
8 There's other deception that has come forward today.
9 The representation of the defendant as another person, as
10 Your Honor is aware, and telling the family that he was 17
11 years old, I think, is significant, and shows that these 12,
12 14 year old boys that he had a relationship with, he was
13 grooming them. He is your classic sexual child predator.
14 He was giving them gifts, a diamond. He took them to
15 go shooting -- excuse me, one of the victims to go shooting.
16 He had weapons on him.
17 And while the defense uses this as he's a law-abiding
18 citizen because he got his carrying a concealed weapons
19 permit, he nonetheless felt compelled to have firearms
20 around; not only that, but take one of the minors shooting.
21 The mental health of the defendant, according to the
22 records, from August 6 and 7, 2010, apparently there was a
23 chief complaint of eye pain. Prior to the defendant's stop
24 by HSI and FBI, he was found to have suffered from
25 psychosis.
90
1 He was supposed to take Adderall but claimed that he
2 did not. And contrary to his urine screen which reflected
3 that he did have amphetamines in his system, not
4 specifically Adderall, but that that was in his system; the
5 testimony about the defendant's involvement in this
6 Anonymous and other programs and any interest by law
7 enforcement, there's no reports that I have seen or that I'm
8 aware of that detail any information about that.
9 THE COURT: Any information about what?
10 MS. INGRAM: Anonymous, his involvement in this
11 organization that he's so concerned about law enforcement
12 coming after him, and these --
13 THE COURT: Well, you know that there was such an
14 investigation.
15 MS. INGRAM: I don't know that it was
16 specifically related to his involvement in that particular
17 organization.
18 THE COURT: Well, regardless, there was such an
19 investigation.
20 MS. INGRAM: I do acknowledge there was an
21 investigation, Your Honor, but, yes, I'm not aware that it
22 involved that specific detail.
23 The United States is concerned for the defendant's
24 unpredictability, he -- and the fact that his parents have
25 been proposed as third-party custodians, they are the ones
91
1 that set him up in school, they are the ones that paid for
2 it in Canada. They are the ones that have been helping him.
3 They provided him the car to go to Mexico.
4 Ultimately, they're his parents. And in the end, I don't
5 know that they would be suitable third-party custodians
6 given the amount of time that this defendant is facing,
7 which is another change that we didn't have before. This
8 defendant is facing a 15 year mandatory minimum.
9 So when the defense says that there's no reason for
10 the defendant to run, 15 years in prison is a pretty good
11 reason for a defendant to run.
12 The last thing I want to mention is that when the
13 defendant was on his medication, that's when he was engaged
14 in this behavior. That's when he was making these phone
15 calls to the family, these harassing, threatening
16 intimidating phone calls. That's when he was grooming these
17 boys.
18 He was a danger to the community when he was on his
19 medication. He fled the country when he was on his
20 medication. So the fact that the defendant should be
21 released so he should get on his medication, I don't believe
22 is sufficient enough.
23 And I said lastly, but I did want to mention the
24 concern about the defendant going with the father and
25 spending time volunteering at the church, that may sound
92
1 like a good idea, but what about when the defendant's father
2 is unavailable.
3 The defendant cannot be sitting near his father at all
4 times. He's a pastor. When he has to go be involved with
5 youth programs or do things that I hope the defendant would
6 not be allowed to be around, there are just too many
7 concerns and risks that the United States has and believes
8 that the defendant should remain detained pending trial for
9 all those reasons.
10 THE COURT: Okay. All right. I'm ready to
11 announce my decision in this case.
12 In order to continue to detain the defendant, I must
13 find that there are no conditions that will reasonably
14 secure the safety of another person or the community by
15 clear and convincing evidence, and I must find that he is a
16 serious risk of flight by a preponderance of the evidence.
17 I would like to start with something that jumped out
18 at me from the pretrial services report prepared on
19 August 11 of 2010 by the pretrial services office in Maine.
20 This was right after Mr. DeHart had gone to Mexico,
21 gone to Canada, French classes, enrolled in college, came
22 back to get his student visa and was arrested. This was
23 right after all those events.
24 And the pretrial services report, nevertheless, states
25 that the probation office can fashion conditions that
93
1 minimize the defendant's risk of flight at that time.
2 And since that time, the Court has learned a whole lot
3 more background about why the defendant did what he did, why
4 he went to Mexico, what the thinking was in terms of Canada,
5 all of which he was not prohibited from doing at the time he
6 did it.
7 No one told him he could not leave the United States
8 when he went to Mexico. No one told him he could not leave
9 the United States when his desperate parents are trying to
10 get him involved in something, get him on a different track
11 than he's on.
12 The other investigation, the national security
13 investigation, the Court has learned much more about. I can
14 easily understand why this defendant was much more focused
15 on that investigation, much more afraid of that
16 investigation, which was propelling his actions at that
17 time.
18 He thought that the search for child pornography was
19 really a ruse to try to get the proof about his
20 extracurricular national security issues. I found him very
21 credible on that issue.
22 But looking at the factors I must look at in order to
23 make this decision, the nature and circumstances of the
24 offense, obviously child pornography charges are serious
25 offenses.
94
1 The government has substantial proof, however, in
2 terms of the weight of the evidence against the defendant.
3 I guess in the process of the last several weeks, I have
4 learned several aspects of this case which, in the Court's
5 mind, indicate the weight of the evidence is not as firm as
6 I thought it was when Mr. Kniss says he cannot really prove
7 that there weren't other little girls in Indiana who might
8 have been enticing these victims to send pictures; he can't
9 prove that, he says.
10 And other aspects of this case; I don't think I knew
11 that the 12 year old was unable to identify the defendant.
12 At any rate, they are very serious charges. A 15 year
13 minimum mandatory is a very serious thing. It can be a
14 motivating factor for fleeing.
15 However, when I look at all of the history and
16 characteristics that have to bear on this decision, Mr.
17 DeHart has no criminal record whatsoever. His family and
18 he -- at my first hearing, I didn't really see that this
19 defendant had any ties in Indiana.
20 This hearing has amplified those ties to the Court,
21 and I think that both his family and he have ties,
22 substantial ties, to the Indiana area where his parents
23 live, the support of the church and family members there.
24 He has really no financial resources except what his
25 parents can provide or his other relatives, but we are much
95
1 further down the road than we were when he was getting his
2 grandmother to give him money to go to Mexico, and I feel
3 certain that none of the family members are going to be
4 giving him money to leave the country.
5 His passport has been surrendered. The proposal that
6 he live with his parents, be on electronic monitoring, and
7 basically go to work with one or the other of his parents
8 every day, be restricted to the residence otherwise unless
9 the probation office approves it seems like a reasonable
10 proposal to the Court.
11 The probation office has ginned up the possible
12 conditions, special conditions. I presume you have the new
13 ones by now.
14 Based on the testimony that was heard this morning, I
15 was certainly going to add a condition that there be
16 absolutely no contact with the victims or potential victims
17 or their families in this case, and the probation office has
18 added that he's even precluded from any travel to or within
19 Williamson County, let alone all the contact.
20 The -- I have heard his father now testify twice. I
21 heard his mother testify before. They have been at every
22 court hearing. I have no reason to think that they will not
23 get this defendant to court.
24 They both have military backgrounds. They understand
25 the meaning of following rules, and I feel that they will
96
1 insist that this defendant follow the rules. If he doesn't
2 we'll know about it anyway with all the special conditions
3 that can be imposed.
4 I feel that there are conditions that can reduce any
5 risk of flight. I do not find at this point that he is a
6 serious risk of flight, and there certainly are conditions
7 that can reasonably secure the safety of other people and
8 the community.
9 I certainly cannot find there are no conditions by
10 clear and convincing evidence.
11 This defendant has been incarcerated for 21 months
12 already. And we are now facing with the change of counsel
13 and the pending other motions another lengthy continuance,
14 and for all these reasons I think that the conditions that
15 have been most recently presented to you -- there are 19 of
16 them -- will suffice to assure Mr. DeHart will come to court
17 when he's required to come to court. I'm going to go over
18 those.
19 So I am going to release him on these conditions. The
20 conditions are -- I'm not going to read them word for word,
21 but the probation office will be going over these with Mr.
22 DeHart and his family -- report to Pretrial Services as
23 directed. All changes of residence or employment if there
24 is any, must be preapproved. He's not to reside in or visit
25 any residence where minor children reside. He's not to
97
1 associate directly or indirectly with children who appear to
2 be under the age of 18. He's not to volunteer any places
3 where those children are.
4 He certainly -- the Probation Office will work out the
5 kind of volunteer activities he can do at the church, but he
6 is not to volunteer with youth groups or children's groups.
7 He can attend church as long as he's with his parents, but
8 he's not to have any contact with children there.
9 He's not to possess, view, listen to or go to
10 locations where any form of sexually stimulating material or
11 sexually oriented material is available.
12 He's not to possess or use a computer or any device
13 with access to any online computer service at any location
14 including any employment or volunteer activities without the
15 prior written approval of the Pretrial Services Office.
16 Don't get him an iPhone with internet access. Don't
17 get him a cell phone at all is my advice to you.
18 He'll be subject to a curfew, and his activities out
19 of the residence will be restricted.
20 He's not to travel outside the Southern District of
21 Indiana except for court appearances, attorney visits and
22 without prior approval, and he's not to approval in
23 Williamson County at all.
24 He's to have no contact directly or indirectly with
25 the victims or potential witnesses or families.
98
1 He will not apply for a passport. He's to refrain
2 from the use or possession of controlled substances. This
3 would naturally exclude, Mr. Searcy, any prescribed
4 substances for his mental health conditions?
5 MR. SEARCY: That's correct, Your Honor. Any
6 prescribed medication would be exempted.
7 THE COURT: Okay. He's prohibited from
8 possessing firearms, dangerous weapons or other dangerous
9 devices regardless of whether or not he has a permit.
10 He's to notify Pretrial Services within 48 hours of
11 any law enforcement contact.
12 He's to undergo polygraph examinations to monitor
13 compliance with conditions of pretrial release whenever they
14 want him to; come in and take a polygraph, he's got to go.
15 You got it?
16 MR. MATTHEW DEHART: Yes, ma'am. Yes, Your
17 Honor.
18 THE COURT: He's to permit the pretrial services
19 officers to visit him any time at his home or elsewhere
20 without advance notification, and he's to allow confiscation
21 of any contraband that is observed in plain view of the
22 pretrial services officer.
23 He's to participate in any mental health treatment
24 that the probation office wants him to participate in, and
25 he's to pay all or part of the cost if he has the financial
99
1 ability to do so or has insurance coverage.
2 He's to refrain from the use or unlawful possession of
3 narcotics or other controlled substances unless prescribed
4 by a licensed medical practitioner. He's to submit to any
5 method of testing for prohibited substances; anything they
6 want, including a sweat patch or anything else.
7 And he's to participate in a program of inpatient or
8 outpatient substance abuse therapy and counseling if the
9 pretrial services office considers it necessary.
10 Those are pretty strict conditions, Mr. DeHart. And
11 you can bet your bottom dollar that the government is going
12 to be watching you, and your slightest deviation or
13 violation of any of those conditions I'm sure will be
14 brought to my attention.
15 MR. MATTHEW DEHART: I understand, Your Honor.
16 THE COURT: So that's going to be my order. So
17 let's move on to the other matters that we need to deal with
18 today.
19 We have a trial next Tuesday. Mr. Scruggs, you have
20 indicated we need to continue that. I'm sure -- well, the
21 government couldn't try it next week anyway, right, you had
22 a problem --
23 MS. DAUGHTREY: No, Your Honor.
24 THE COURT: -- with that? And you are requesting
25 a continuance of how long?
100
1 MR. SCRUGGS: Six months to be safe, I would
2 think.
3 THE COURT: Is that all right with the
4 government?
5 MS. DAUGHTREY: Yes, Your Honor.
6 MR. SCRUGGS: The other thing I would bring to
7 the Court's attention, yesterday I filed a motion to
8 suppression --
9 THE COURT: Yes, I saw it.
10 MR. SCRUGGS: -- and that was a bare-boned motion
11 to suppress that I need to amend, so I ask the Court not to
12 set that for a hearing for a while until I amend it.
13 THE COURT: We'll talk about that in just a
14 minute. Let's figure out a trial date. Well, my December
15 is jammed.
16 I'm going to have to set it either the week before
17 Thanksgiving or preferably the week after Thanksgiving. I
18 could perhaps do it on December 4th, so November 27 or
19 December 4.
20 MR. SCRUGGS: November 27 is fine for me.
21 THE COURT: That's better than December 4?
22 MR. SCRUGGS: I have another trial set in state
23 court.
24 THE COURT: Okay. What's the estimated trial
25 time here?
101
1 MS. DAUGHTREY: Yes, Your Honor. I'm just
2 looking at those dates.
3 THE COURT: Okay.
4 MS. DAUGHTREY: Your Honor, I would expect it
5 will be probably three days at the most for the government,
6 so -- I really don't even think it will be that long.
7 MR. SCRUGGS: Mine will probably be two days
8 because one day just with my expert and any other possible
9 witnesses that I have.
10 THE COURT: I don't think your expert is going to
11 take the whole day. That would surprise me. Well, we'll
12 count on four or five days.
13 MS. DAUGHTREY: Your Honor, and just looking at
14 the calendar and talking, the better date for the government
15 is December 4 rather than the 27th. I didn't hear
16 whatever what Mr. Scruggs trial date was.
17 THE COURT: He says he had a trial on the 4th?
18 MR. SCRUGGS: It's on the 3rd, but it would last
19 most of that week.
20 THE COURT: You are pretty sure it's going to go
21 to trial?
22 MR. SCRUGGS: Yes.
23 THE COURT: We probably shouldn't set it the 27th
24 because it might go over into that next week.
25 MR. SCRUGGS: If that's the case, then obviously
102
1 if I'm tied up here, that will bump that. So the judge
2 would have no choice then at that point in time to bump it.
3 He's not going to overrule you.
4 THE COURT: The 27th doesn't work for one or both
5 of you?
6 MS. DAUGHTREY: All right. We'll make it work,
7 Your Honor.
8 THE COURT: Okay. All right.
9 MS. DAUGHTREY: It's the Thanksgiving before, and
10 I know that Detective Kniss may not be easily available that
11 week before, and I know that Ms. Ingram has family that
12 lives out of town. And that was my concern is getting ready
13 and getting prepared when I fully expect -- I know Detective
14 Kniss's family is in Wyoming.
15 THE COURT: So you might have to just bump up
16 your preparation for the week before or something.
17 MR. SCRUGGS: Judge, if you issue an order saying
18 that I have a trial December 4 and I take that to the state
19 judge, he's probably going to continue that trial.
20 THE COURT: Well, let's do it December 4 then and
21 not make everybody's life miserable over Thanksgiving.
22 MS. DAUGHTREY: That would be great. Thank you,
23 Your Honor.
24 THE COURT: Okay. All right. We'll set it
25 December 4.
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1 Mr. DeHart, you know that you have speedy trial rights
2 which you have waived many times.
3 MR. MATTHEW DEHART: Yes, Your Honor.
4 THE COURT: And you have new counsel, and you
5 have discovery issues and other motion issues. Are you
6 agreeable to rescheduling your trial for December 4?
7 MR. MATTHEW DEHART: I'm agreeable to that.
8 THE COURT: All right. I guess we'll have you --
9 do you have a waiver form?
10 MR. SCRUGGS: Not with me.
11 THE COURT: Maybe we can pull off a waiver form
12 and get you to sign it. Okay. December 4, all right.
13 Now, we do have a motion to suppress. It's really on
14 the adequacy of the warrant, but you are raising Franks
15 issues which would require a hearing, and so why don't you
16 tell me by when can you supplement your motion and then
17 we'll figure out when the government will respond and when
18 we'll set a hearing?
19 MR. SCRUGGS: I can supplement it within 30 days
20 provided that I get the report from Indiana with regard to
21 the process the agent engaged in there in basically
22 unlocking his computer, the gateway, and which portions of
23 the hard drives he had access to at which particular times.
24 So I'm still waiting on those reports or that
25 information, and I don't know if that's ever going to be
104
1 available or not.
2 I'll say if I can get the information I have asked
3 for, I can have a supplement within 30 days.
4 MS. DAUGHTREY: Your Honor, evidently -- as you
5 know, I have had a lot of issues in my family over the last
6 month and a half --
7 THE COURT: Yeah.
8 MS. DAUGHTREY: -- and Detective Kniss tells me
9 that he has sent me an e-mail that has Detective Hill's
10 report.
11 It's not much of anything, from what I understand, but
12 I will go find it and make sure that Mr. Scruggs gets it
13 right away, and I apologize to the Court and to Mr. Scruggs.
14 I didn't realize that it was there.
15 THE COURT: What do you mean it's not much of
16 anything?
17 MS. DAUGHTREY: It's a paragraph describing the
18 process that he used to co-mingle the --
19 MR. KNISS: The hard drive.
20 MS. DAUGHTREY: -- the hard drive, yeah. There's
21 a technical thing -- do you want to explain?
22 THE COURT: Why don't you come to the podium,
23 Detective?
24 MR. KNISS: Your Honor, Agent Hill, up in
25 Indiana, I'm familiar with the process that he used to
105
1 co-mingle two hard drives together to make it appear as one.
2 The laptop that was seized --
3 THE COURT: This is something the agent did or
4 something the defendant did?
5 MR. KNISS: Actually, it's part of the laptop,
6 the way it's set up from the manufacturer.
7 THE COURT: Oh.
8 MR. KNISS: It's called a raid, two hard drives
9 have information on both hard drives that are commingled
10 together to make it appear as one hard drive, one larger
11 hard drive.
12 And it's mostly done in gaming laptops as we have
13 seized in this case. It's for faster speeds and quicker
14 times in games.
15 What the agent has done is taken both hard drives,
16 made a mirror image of them, and using the software, he's
17 able to take both images of the hard drives and make it as
18 one in this forensic software that we utilize.
19 What I have received from Agent Hill in Indiana is
20 just a brief paragraph describing the process that we use in
21 the forensics software to make these two hard drives appear
22 as one for analysis.
23 THE COURT: So that your speed of analysis can be
24 quicker?
25 MR. KNISS: Well, in the laptop, it's rated --
106
1 it's commingled together for faster speeds, but when you
2 take it out, we have two hard drives, you can't examine one
3 with -- because part of the information is on one and part
4 of the information is on the other.
5 THE COURT: I see.
6 MR. KNISS: So we're combining the two as one so
7 we can analyze the data on it.
8 THE COURT: Okay. Does that help you?
9 MR. SCRUGGS: This is the question that I have.
10 Were any portions of these hard drives encrypted?
11 MR. KNISS: No.
12 MR. SCRUGGS: That's the million dollar question
13 right there because it's my understanding that my client
14 gave passwords to the folks in Maine that may have allowed
15 them access to that, but I don't -- like I said, if none of
16 it was encrypted, then that should not we be a problem as
17 far as supplementing the motion.
18 THE COURT: Okay. So you are going to get him
19 that paragraph?
20 MS. DAUGHTREY: Yes.
21 THE COURT: And then you are going to be able to
22 supplement your motion by?
23 MR. SCRUGGS: Within 30 days.
24 THE COURT: By June 22nd.
25 MR. SCRUGGS: Absolutely.
107
1 THE COURT: All right. Defendant will supplement
2 by June 22nd. And how long does the government want for a
3 response?
4 MS. DAUGHTREY: Your Honor, if we could have four
5 weeks that would be great. I know I have got some vacation
6 time during that period, and I have reason to believe that
7 Detective Kniss may be a little more difficult to touch base
8 with at that point in time.
9 THE COURT: Okay. July 23 for your response?
10 MS. DAUGHTREY: That sounds great. Thank you.
11 THE COURT: Okay. All right. And maybe we can
12 pick a hearing date. Friday, September 21st?
13 MR. SCRUGGS: That's fine for me.
14 THE COURT: Does that work for you?
15 MS. DAUGHTREY: Yes, Your Honor, that works for
16 the government.
17 THE COURT: All right. Let's set that at
18 10:00 on Friday, September 21st.
19 MR. SCRUGGS: You say 10:00?
20 THE COURT: September 21st at 10:00. Now, do I
21 take it that the issues on the motion to compel are
22 resolved?
23 MR. SCRUGGS: With the exception of is the
24 government going to let us produce a mirror image of all of
25 the hard drives media or just the ones that don't have
108
1 consider CP on them? I don't know if that's a decision they
2 made.
3 MS. DAUGHTREY: Your Honor, that was something we
4 opposed from the get-go, and I understand from Detective
5 Kniss that it's not difficult to examine a drive that has
6 child pornography on it.
7 We have always said we would be willing to give them a
8 copy of other drives that are appropriate, and I know that
9 the defense expert went and visited with Detective Kniss on
10 one day, set up a meeting for another time, and then just
11 out of the blue canceled it, so he's not making an evident
12 at this point to examine this computer in government
13 facilities at this point.
14 THE COURT: Did you know he canceled an
15 appointment?
16 MR. SCRUGGS: Yes, and the reason for that was we
17 needed a ruling or some kind of position with regard to
18 whether we were going to be provided with a copy of all
19 these items as opposed to just the ones that were non-CP.
20 As the Court will recall, Mr. Kempvanee testified at
21 length regarding the difficulty of bringing his equipment
22 over to their office to do this, and he wanted to try to do
23 it all at one time.
24 I did send an e-mail to Ms. Daughtrey back on May 3rd
25 to which interest was no response requesting a decision on
109
1 that.
2 And to my understanding, when Mr. Kempvanee met with
3 Detective Kniss, Detective Kniss didn't have a problem with
4 allowing him to copy off all because Mr. Kambani showed him
5 his procedure for deleting all the CP images from the mirror
6 images of those hard drives.
7 That could be done, and it wasn't that difficult to
8 do, but obviously it's not his decision; it's Ms.
9 Daughtrey's decision.
10 THE COURT: I think there hasn't been enough
11 communication, so I'm not willing to make a ruling on this.
12 I want you all to work some more together on this. It
13 sounds like there might be some -- I think there's room for
14 you all to figure this out. Yes, Your Honor. I will tell
15 you that I have spoken with Detective Kniss. And from my
16 understanding, there is no way that he can guarantee that
17 there's no child pornography that leaves the government's
18 facility through this particular program which is untested
19 and, you know, hasn't been peer reviewed at all that
20 Mr. Kempvanee is offering of.
21 And my understanding from Detective Kniss is that he
22 did not agree that he had no problem with it at all. I
23 think they just discussed it, and he was prepared to make
24 this equipment available.
25 He's done that in the past without any problems at all
110
1 on a number of occasions, and that's where we left it. I
2 don't know where this misinformation is coming from so.
3 MR. SCRUGGS: Well, that was what -- and, again,
4 I have another e-mail to Detective Kniss from Mr. Kempvanee
5 that basically reiterates all of that. Could I submit these
6 to the Court?
7 THE COURT: Sure.
8 MR. SCRUGGS: There's another e-mail that I want
9 the Court to see as well to which there has been no response
10 to either one of those.
11 I guess in terms of the cost associated with having
12 Mr. Kambani go over there and bring his equipment over
13 there, it's going to be much greater to do it that way than
14 it would be to do it the way in which Mr. Kempvanee
15 described as far as making these mirror images but deleting
16 all the CP from there.
17 I don't think there's anybody that could ever
18 absolutely guarantee there may not be an image somehow
19 buried within these hard drives, but if the Court will
20 recall, Mr. Kempvanee gave very specific detail about how he
21 could make sure that none of this ever left his office and
22 that it would go back to the government, be destroyed or
23 whatever.
24 And, you know, if the Court needs to have another
25 hearing on all this, we could do that, or if the Court wants
111
1 to make a ruling based upon the testimony that its already
2 heard --
3 THE COURT: Let me look at these e-mails.
4 (Pause.)
5 THE COURT: What is the comparative cost? You
6 said that you were going to prepare a comparative cost.
7 MR. SCRUGGS: He's not done that yet, Judge. I'm
8 basically trying to make the best of what we pay him. I
9 think you can understand because he's very expensive.
10 And I just know that from talking to him, it's going
11 to be much more for him to go over there and bring his
12 equipment than it would be to be at -- to have it all done
13 at his place.
14 MS. DAUGHTREY: Your Honor, I'm getting a
15 completely different -- and if we're going to start into
16 argument, I really feel like I need to put Detective Kniss
17 on the stand because my understanding is although it might
18 be somewhat slower, that he, one, wouldn't have to leave his
19 equipment there; and, two, that it's just the difference
20 between how fast a desktop can run versus how fast a
21 forensic laptop can run.
22 And I'm certain that if Mr. Kempvanee has this
23 elaborate wonderful lab, that he probably has a pretty power
24 full laptop that he can use.
25 He's been talking about in his testimony -- and that
112
1 is testimony too that I would like to get transcribed and
2 have Detective Kniss review, but he talked about all this
3 equipment that he needed.
4 And the equipment that's needed for forensic analysis
5 is simply a very expensive software program, either Encase
6 or FTK, but it's not something that -- you know, these are
7 going to be hard drives that he can hook up to his computer
8 and unhook when he's ready to go home, and there's nothing
9 that -- there's nothing that's left on those hard drives
10 that would show what he was doing.
11 And he would be permitted to copy anything other than
12 the child pornography that's on those hard drives, any of
13 the index files, or data files, or whatever, that are there.
14 But that is the clearest way to ensure, and it just
15 doesn't sound to me, and I have talked to Detective Kniss
16 about it, that that's going to be any kind of onerous
17 problem for him.
18 We've offered for him to come to any place that's
19 convenient. I assume coming to the FBI, which is over off
20 Elm Hill, or coming to the U.S. Attorney's Office is
21 preferable to him, but he could also go down to Franklin and
22 do the work down there.
23 MR. SCRUGGS: Judge, I would simply -- I would
24 ask to have another hearing to where we could flesh all this
25 out because I do think apparently we're hearing two
113
1 different things from our people.
2 And I would ask that if the Court would consider maybe
3 give us one more hearing so that the Court could simply rule
4 on this issue from a fully informed position as far as what
5 the parties feel about this.
6 MS. DAUGHTREY: I would also just like to add one
7 thing, if I could, to this e-mail, which I had not seen and
8 had not responded to, and I apologize to the defense for
9 that.
10 I think I have been clear from the get-go that the
11 government is opposed to anything that has child pornography
12 going into the hands of the defense because of the inability
13 to guarantee that it's -- that there's not child pornography
14 there, and really that's in compliance with the law, the 18
15 U.S.C. 3509(m).
16 There's a statement here that Mr. Scruggs has made
17 orally and also in this e-mail where he states that, "It's
18 my understanding that Agent Kniss has seen Mr. Kempvanee's
19 process for redaction and is not opposed to utilizing this
20 to provide copies first, I want to make note that Agent
21 Kniss -- if you're considering this at this moment, Agent
22 Kniss did not see the process. Agent Kniss heard about the
23 process, from what I understand.
24 And I think it's clear from his other e-mail that he
25 is not agreeing that he has no problem with it, but rather
114
1 that he's deferring to my decision about whether or not the
2 child pornography hard drives can go into the defense
3 possession.
4 I would also just note for the Court that although we
5 have offered to provide copies of other evidence, we have
6 not ever received any hard drives in order to copy that
7 stuff over to it except for the one that Ms. Hodde provided,
8 which has everything on it, and I think there was some
9 discussion about doing another one with Mr. Kempvanee --
10 Vancampe, Kempvanee, when we were here in court after his
11 testimony that there would be another hard drive provided to
12 us for us to at least go ahead and provide him with copies
13 of the other items that are not problematic, so I would just
14 note that for the Court.
15 THE COURT: Do you have her provided another --
16 MR. SCRUGGS: Judge, Mr. Kempvanee advised he
17 would rather go ahead and provide them with the hard drives,
18 blank ones I guess, to get everything at once, so he could
19 view everything at once because a lot of this stuff is
20 interrelated, is what I understand.
21 THE COURT: Okay. How soon do you want to have
22 this hearing? You want to get the transcript? That's not
23 going to be a very long transcript of his testimony from
24 whenever?
25 MS. DAUGHTREY: I think it's from Ms. Cole.
115
1 THE COURT: Let's see. It was April 20.
2 April 20 is when he testified.
3 MS. DAUGHTREY: Okay. And it wasn't very long.
4 I do not have the court reporter for that date.
5 THE COURT: Let's see. The docket sheet will
6 show who it is. April 20? Ms. Cole, you have your marching
7 orders, apparently. The government is ordering the
8 transcript right now.
9 MS. DAUGHTREY: I will be ordering the
10 transcript, yes.
11 MR. SCRUGGS: And I'll take a copy.
12 THE COURT: And he'll take a copy, okay. So,
13 let's see. Then you want Detective Kniss to be able to
14 respond to that. Let's see. Could we be ready for that
15 hearing by June 6th?
16 MS. DAUGHTREY: Your Honor, my understanding is
17 Detective Kniss will not be here on the 6th, but would be
18 here the following day.
19 THE COURT: The 7th?
21 THE COURT: I could do it in the morning that
22 day. Mr. Scruggs, does that work for you?
23 MR. SCRUGGS: I have to move some things around,
24 but I can do that.
25 THE COURT: Okay. 9:00 on the morning of
116
1 June 7th will be the further hearing on the motion to
2 compel in this case.
3 MR. SCRUGGS: It shouldn't take more than an hour
4 and a half, two hours you think? I wouldn't think so.
5 THE COURT: Okay.
6 MR. SCRUGGS: I was going to push the other thing
7 I have back to 11:00.
8 THE COURT: I don't know. A couple of hours
9 sounds like it would be sufficient to me.
10 MS. DAUGHTREY: I can't imagine it unless
11 Mr. Kempvanee is planning on testifying again, then I don't
12 know.
13 THE COURT: In rebuttal?
14 MR. SCRUGGS: Right, he would in rebuttal,
15 absolutely.
16 THE COURT: You are the one that has a problem,
17 so --
18 MR. SCRUGGS: We'll make it quick.
19 THE COURT: -- you be cogent and concise. These
20 e-mails, do you want me to just keep these for further
21 background?
22 MR. SCRUGGS: Just keep them.
23 THE COURT: Is that all right with the
24 government?
25 MS. DAUGHTREY: Yes, Your Honor, that's fine.
117
1 THE COURT: These two e-mails, I'll keep these as
2 background on the motion to compel.
3 All right. Is there anything else on this case? Yes,
4 let's have Mr. DeHart sign that waiver. Thank you.
5 MR. SCRUGGS: My understanding, Judge, is that
6 all the items from Maine are on the way, is that correct,
7 from Washington?
8 MS. DAUGHTREY: We have all the electronic items.
9 I don't know the status of the nonelectronic items. The --
10 Special Agent John McMurtry is out of town this week, and so
11 I'm not exactly sure what it is that's in there.
12 I know Detective Kniss is planning on starting this
13 week with review of some of the evidentiary issues just to
14 make sure -- or, excuse me, electronic evidence to make sure
15 there's no contraband on those.
16 THE COURT: Okay.
17 MR. SCRUGGS: So that means we would have access
18 maybe at the end of next week possibly?
19 THE COURT: Could we put this on the top of your
20 list please, everybody's list?
21 MR. KNISS: Yes, Your Honor.
23 THE COURT: This case has been bumping along way
24 too long.
118
1 THE COURT: Okay. And I will get the Order for
2 release.
3 Mr. Searcy, how should we handle this? He's going to
4 go down with you or what --
5 MR. SEARCY: Please the Court, I believe that
6 the -- once Mr. DeHart returns to the Marshals lockup, if
7 his parents will be able to bring some street clothes, they
8 can have him change over into street clothes and then come
9 over to our office for the installation of the GPS unit.
10 THE COURT: Okay. All right. Anything else?
11 All right. We're in recess.
12
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119
1 REPORTER'S CERTIFICATE
3 I, BEVERLY E. "BECKY" COLE, Official Court
4 Reporter for the United States District Court for the Middle
5 District of Tennessee, with offices at Nashville, do hereby
6 certify:
7 That I reported on the stenotype shorthand machine
8 the proceedings held in open court on May 22, 2012 in the
9 matter of UNITED STATES OF AMERICA vs. MATTHEW PAUL DEHART,
10 Case No. 3:10-00250;
11 That a transcript of proceedings in connection
12 with the hearing was reduced to typewritten form by me;
13 That the foregoing transcript is a true and
14 accurate record of the proceedings to the best of my skills
15 and abilities;
16 This the 5th day of June, 2012.
17
18
19
20 /s/
BEVERLY E. COLE, RPR
21
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25

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1

1 UNITED STATES DISTRICT COURT

4 UNITED STATES OF AMERICA )

12 BEFORE: THE HONORABLE ALETA A. TRAUGER

13 DATE: MAY 22, 2012

14 TIME: 10:00 A.M.

17 FOR THE GOVERNMENT: CARRIE DAUGHTREY

3 PAUL JOSEPH DEHART:

4 Direct Examination by Mr. Scruggs 4

5 Cross-Examination by Ms. Ingram 14

6 Redirect Examination by Mr. Scruggs 33

9 Direct Examination by Mr. Scruggs 38

10 Cross-Examination by Ms. Ingram 49

13 Direct Examination by Ms. Ingram 59

14 Cross-Examination by Mr. Scruggs 66

15 Redirect Examination by Ms. Ingram 71

18 Direct Examination by Ms. Ingram 74

19 Cross-Examination by Mr. Scruggs 78

20 Redirect Examination by Ms. Ingram 82

1 THE COURT: Good morning. We're here on United

2 States vs. Matthew Paul DeHart. We have Carrie Daughtrey

4 defendant. The defendant is in the courtroom.

5 The initial issue this morning I think is detention,

6 and I would like to take that up first.

7 Mr. Scruggs, I already reviewed the detention order

8 once, but that was sometime ago. It was back in December of

10 I have reviewed that transcript, the transcript out of

13 Would you like me to consider all of that material

14 plus anything additional you wish to present today?

15 MR. SCRUGGS: Yes, ma'am.

16 THE COURT: Okay. Do you have additional

18 MR. SCRUGGS: Yes, I would like to call Paul

19 DeHart, who's Matthew's father, as well as Matthew briefly.

20 THE COURT: I have already heard from him once,

21 so I hope we have new information.

22 MR. SCRUGGS: I would like to put him on for the

23 purpose of basically summarizing where we are at this point

25 assistance he can to the Court in compliance with any

1 Q Now, I wasn't here the first time you testified, don't

2 really want to go over that in a lot of detail again.

4 Q The first thing I wanted to address was what has

5 happened since the last time you testified --

7 Q -- which has been I guess now about 18 months?

8 A December 2010, yes.

9 Q Almost 18 months then, okay. Now, as far as -- number

13 Q -- but are you and your wife still in a position to

15 no matter what those conditions are, they will be complied

17 A Yes, we are. We have since moved from the residence

19 money for legal expenses, so we have another residence.

20 It's a two bedroom. It's closer to my work. It's

22 willing to do what are whatever is required.

23 Matthew can come to work with me. I work at the

24 church, and we have a kind of a work agreement we can set up

25 for him to do volunteer work. There's always work to do

1 requirements the Court has.

2 Q Also you have some letters that some other folks

3 brought as well. Is that correct?

4 A Yeah, some letters of reference from the elders in the

5 church saying they would support us whatever needed to be

7 MR. SCRUGGS: Your Honor, if I could hand these

8 letters to the witness?

9 THE COURT: Okay. Has the government seen them,

11 MR. SCRUGGS: Pardon?