25 November 2001

Background: http://www.mccullagh.org/subpoena/

See other testimony: http://cryptome.org/usa-v-jdb-dt.htm

Source of this document: John Young of Cryptome.

           1                   UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF WASHINGTON
           2                            AT TACOMA
           4  UNITED STATES OF AMERICA,    )  Docket No. CR00-5731JET
                                           )  Court of Appeals No. 01-30303-00
           5              Plaintiff,       )
           6          v.                   )
                                           )  Tacoma, Washington
           7  JAMES DALTON BELL,           )  April 3, 2001
           8              Defendant.       )
          10                              VOLUME 1
                                     TRANSCRIPT OF TRIAL
          11                 BEFORE THE HONORABLE JACK E. TANNER
                       SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
          13  APPEARANCES:
          14  For the Plaintiff:            ROBB LONDON
                                            Assistant United States Attorney
          15                                601 Union Street, Suite 5100
                                            Seattle, Washington  98101
              For the Defendant:            ROBERT M. LEEN
          17                                Attorney At Law
                                            Two Union Square
          18                                601 Union Street, Suite 4610
                                            Seattle, Washington  98101-3903
          21  Court Reporter:               Julaine V. Ryen
                                            Post Office Box 885
          22                                Tacoma, Washington 98401-0885
                                            (253) 593-6591
              Proceedings recorded by mechanical stenography, transcript
          25  produced by Reporter on computer.
           2           THE CLERK:  Please state your full name and spell your
           3  last name.
           4           THE WITNESS:  My name is Declan McCullagh.  The last
           5  name is spelled M-c-C-u-l-l-a-g-h.
           6                        DIRECT EXAMINATION
           7  BY MR. LONDON:
           8  Q.  Mr. McCullagh, can you begin by telling the jury how you are
           9  employed presently?
          10  A.  Certainly.  My job is the Washington Bureau Chief for Wired
          11  News.
          12  Q.  And were you -- I take it you function as a reporter, is
          13  that correct?
          14  A.  Yes.
          15  Q.  Were you employed in that capacity back on April 14th of
          16  2000?
          17  A.  Yes.
          18  Q.  And are you the author of an article that appeared in Wired
          19  News on April 14th, 2000, that discussed or involved James
          20  Dalton Bell, the defendant here today?
          21  A.  Yes.
          22  Q.  Can you please turn to the binder to your right that would
          23  include Exhibit No. 100.  And can you open to that exhibit and
          24  tell us if you recognize what that is?
          25  A.  Could you repeat the question?
           1  Q.  Yes.  Could you look at Exhibit 100, and can you tell the
           2  members of the jury if you recognize what that is?
           3  A.  It appears to be a copy of an article I wrote.
           4  Q.  All right.  Now --
           5           MR. LONDON:  We offer 100, Your Honor.
           6           MR. LEEN:  Objection, Your Honor.  Newspaper article.
           7  Hearsay.
           8           MR. LONDON:  It contains an admission by the defendant.
           9           THE COURT:  Did he write it?
          10           MR. LEEN:  This witness wrote it.
          11           THE COURT:  Are you offering the whole exhibit or are
          12  you offering excerpts?
          13           MR. LONDON:  Well, all right, Your Honor.  Fair
          14  enough.
          15  Q.  (By Mr. London)  Let me ask you this, Mr. McCullagh.  There
          16  are quotations in that article attributed to Mr. Bell, correct?
          17  A.  Yes.
          18  Q.  All right.  And can you tell the members of the jury if
          19  those quotations accurately reflect what Mr. Bell told you in an
          20  interview that was done in preparation for that article?
          21  A.  I don't recall.
          22  Q.  So, I'm sorry, is it your testimony that you publish things
          23  without verifying the accuracy or checking your notes to see if
          24  in fact it reflects what someone has told you in an interview?
          25  A.  No.
           1  Q.  All right.  Where it says that McCullagh stated in the
           2  article that Bell plans to exact revenge on the system that
           3  imprisoned him, did Mr. Bell tell you something to that effect?
           4  A.  Where in the article, please?
           5  Q.  In Exhibit 100.
           6  A.  What paragraph?
           7      Do you mean the second paragraph?
           8  Q.  Correct.  "... he plans to exact revenge on the system that
           9  imprisoned him."
          10  A.  What is your question?
          11  Q.  Did Mr. Bell tell that to you?
          12  A.  I don't recall.
          13           MR. LONDON:  Your Honor, I want to declare the witness
          14  to be a hostile witness.
          15           THE COURT:  Ask the question again.
          16  Q.  (By Mr. London)  Please turn to Exhibit 229.  It will
          17  probably be in a different binder.
          18  A.  I have it.
          19  Q.  All right.  Turn to the second page of that article, and
          20  could you look at the fourth paragraph down, the one that
          21  begins, "Bell says that he's put" Assassination Politics on
          22  hold.
          23  A.  I see it.
          24  Q.  All right.  And where it says that he acknowledges that he
          25  has shown up at the homes of suspected BATF agents.  Do you see
           1  that there?
           2  A.  I do see that, yes.
           3  Q.  And has done DMV searches on their names.
           4  A.  I see that there, sir.
           5  Q.  All right.  Does that reflect something that Mr. Bell
           6  actually told you?
           7  A.  I don't recall him saying that.  I don't put things in
           8  articles unless people tell me things, but I do not have an
           9  independent recollection at this point that that's particularly
          10  explicitly what he said.
          11           MR. LONDON:  Your Honor, we offer 229.
          12           MR. LEEN:  Objection, Your Honor.
          13           THE COURT:  Will the jury please go to the jury room
          14  for a moment.
          15      (Jury excused; 3:36 p.m.)
          16           THE COURT:  Let me see it.
          17      Where are you referring to, counsel?
          18           MR. LONDON:  In Exhibit 229, Your Honor, there are
          19  really two statements that I have -- that I wish to elicit from
          20  this foundation testimony.
          21           THE COURT:  Where are they?
          22           MR. LONDON:  The very last paragraph on the first page,
          23  "For Bell, that meant spending the last six months compiling
          24  personal information ..."  The last paragraph on the first
          25  page.
           1      And then the fourth paragraph on next page.  The witness has
           2  already testified to that one.  I can ask him --
           3           THE COURT:  Well, he already testified to which one?
           4           MR. LONDON:  The second one.  If I can ask him about
           5  the first one, the one on the first page, then I --
           6           THE COURT:  Well, the first one is not in quotes.
           7           MR. LONDON:  Well, it's a statement attributed to --
           8           THE COURT:  It's not in quotes.
           9           MR. LONDON:  Correct.
          10           THE COURT:  Right?
          11           MR. LONDON:  Right.
          12           THE COURT:  So what in quotes are you asking him?
          13           MR. LONDON:  Well, I'm asking him if the statement --
          14  and it's not in quotes, but the first one, where it says, "that
          15  meant spending the last six months compiling personal
          16  information," if that reflects a statement that was made by the
          17  defendant to Mr. McCullagh.
          18           THE COURT:  Didn't he answer that he doesn't recall?
          19           MR. LONDON:  Not as to that one, Your Honor.  I haven't
          20  asked him about that one yet.
          21           THE COURT:  Okay.  So what other one is in dispute?
          22           MR. LONDON:  Just that one.  That's the only one I have
          23  to ask him about in this exhibit.
          24           THE COURT:  That's the only one you still have to ask
          25  him, right?
           1           MR. LONDON:  Yes.  I'm going to ask him if that
           2  attributed statement accurately reflects what Mr. Bell told him
           3  at the time.  If I can ask him that, then I will not seek to
           4  offer the entire exhibit.
           5           THE COURT:  Let's ask him now out of the presence of
           6  the jury.  Ask him the question.
           7  Q.  (By Mr. London)  Mr. McCullagh, that statement at the bottom
           8  of the first page, "For Bell, that meant spending the last six
           9  months compiling personal information about IRS and Bureau of"
          10  ATF agents, does that accurately reflect something that Mr. Bell
          11  would have said to you in the interview?
          12  A.  I don't recall him explicitly saying that.
          13  Q.  But is your answer the same, that it is your practice to
          14  accurately attribute statements to people based on what they
          15  tell you?
          16  A.  Yes.
          17  Q.  All right.
          18           MR. LONDON:  That's all I want to seek from him.
          19           THE COURT:  All right.  Bring the jury.
          20      (Jury present; 3:40 p.m.)
          21           THE COURT:  Jury has returned.
          22      What's the question, counsel?
          23  Q.  (By Mr. London)  Mr. McCullagh, returning to Exhibit 229,
          24  and turning your attention to the last paragraph on the first
          25  page, the one that says, "For Bell, that meant spending the last
           1  six months compiling personal information about IRS and Bureau
           2  of Alcohol, Tobacco, and Firearms agents, a move that appears to
           3  have led to the six-hour search of his home in Vancouver,
           4  Washington."  Does that paragraph accurately reflect a statement
           5  made to you by Mr. Bell in the course of an interview?
           6  A.  I don't recall that, sir.
           7  Q.  All right.  But is your answer the same as before, that it
           8  is your practice ordinarily to accurately state in your articles
           9  what someone you have recently interviewed has told you?
          10  A.  Yes.
          11  Q.  All right.  Turning your attention to Exhibit 100.  That's
          12  the April 14th, 2000, article that you published.  There is a
          13  statement, I turn your attention to the second full paragraph of
          14  the article, in quotes, "'If they continue to work for the
          15  government, they deserve it.  My suggestion to these people is
          16  to quit now and hope for mercy,'" comma, quote, "the 41-year-old
          17  Washington state native said in a telephone interview this
          18  week..."
          19      Did you write that quote?
          20  A.  Yes, I wrote that quote.
          21  Q.  And was that quote based on a statement that Mr. Bell made
          22  to you in a telephone interview?
          23  A.  I don't recall if that was the exact statement he gave me.
          24  Q.  All right.  So, once again, though, is it your practice to
          25  accurately attribute things in quotations based on your best
           1  memory of what someone has said to you?
           2  A.  Yes.
           3  Q.  All right.
           4           MR. LONDON:  Nothing further, Your Honor.
           5           THE COURT:  Cross-examination.
           6           MR. LEEN:  Thank you, Your Honor.
           7                        CROSS-EXAMINATION
           8  BY MR. LEEN:
           9  Q.  Mr. McCullagh, have you also spoken to Agent Jeffrey Gordon?
          10  A.  Sir, I most respectfully decline to answer that question.
          11  I'm citing my First Amendment privileges as a journalist.
          12  Q.  Referring your attention to the April 14th, 2000,
          13  interview.  Do you have that?  I think that was No. 100.
          14  A.  I have it in front of me, yes.
          15  Q.  On the second page, 2 of 4, the third paragraph down, it
          16  says, "IRS inspector Jeff Gordon, who now regularly monitors the
          17  cyberpunks mailing list, took it personally ..."
          18      How did you become aware of that information, sir?  Did
          19  someone tell you that?
          20  A.  If you look at that paragraph carefully, you'll see that
          21  there are two links.  These are web links.  You can click on
          22  them.  They are also called hyperlinks.  The second one uses --
          23  that is linked to the word "likening."
          24  Q.  Yes, sir.
          25  A.  Goes to what I recall is an affidavit submitted by Jeff
           1  Gordon, who is, of course, here in this room today.  And so that
           2  is based on the affidavit that is part of the public record.
           3  Q.  All right.  And that's where you derived that piece of
           4  information?
           5  A.  I don't recall.  I presume so.
           6  Q.  Referring to Exhibit, I believe it was, 229, the November 11
           7  article.
           8  A.  I have it in front of me.
           9  Q.  Referring on the first page to the third paragraph, starting
          10  with the quotation, "'They're basically trying to harass me,'"
          11  close quote, "Bell said in a telephone interview."  In an
          12  article that you write, if you put something in quotes, should
          13  the reader rely on the fact that you, to the best of your
          14  ability, are putting down exactly what the person said?
          15  A.  Yes.
          16  Q.  Did Mr. Bell tell you that he felt he was being harassed by
          17  the government?
          18  A.  From this article, it certainly looks that way, yes.  I
          19  believe that is what the article says.
          20  Q.  On the second page of that same article, page 229 -- and
          21  this is an article dated November 11th, 2000.  On the second and
          22  third paragraph from the end.
          23  A.  I see it.
          24  Q.  It says, in quotes, "'I am thinking very strongly of
          25  picketing (IRS Agent) Jeff Gordon's house.  I don't intend to
           1  violate any laws when I do that.  It's conceivable that they
           2  won't appreciate my picketing their house,'" close quote, "Bell
           3  says."
           4      Again, I ask you, you put those statements attributed to Mr.
           5  Bell in quotes.  To the best of your ability, was that an exact
           6  quote?
           7  A.  Yes.
           8  Q.  An exact statement that Mr. Bell made?
           9  A.  Yes.
          10  Q.  All right.  The next paragraph is in quotes, also.  It says,
          11  "'I wasn't [at] all that happy before, but I'm hopping mad,'"
          12  and then it trails off, dot dot dot.  "'If you think this is
          13  going to stop me, baloney,' he says.  'Needless to say I'm
          14  feeling very hostile.  But I don't intend to violate
          15  black-letter Oregon law.'"
          16      Again, that paragraph was in quotes.  The fact that that
          17  part of the article was in quotes, again, was that your best
          18  ability to convey to the reader what you were told by Mr. Bell?
          19  A.  Yes.
          20  Q.  All right.  Had Mr. Bell complained to you that he was
          21  compiling evidence of illegal government surveillance against
          22  him at other times that you interviewed him?
          23  A.  Sir, that is outside the scope of the article, and I must
          24  respectfully decline to answer that question based on my First
          25  Amendment privilege as a journalist.
           1  Q.  Did you write an article on November 21st, "Cyber-Terrorist
           2  Jailed Again"?
           3  A.  I believe I may have.  I don't know if that's the date.  I
           4  don't have that article in front of me, nor was I required to
           5  bring it.
           6  Q.  Do you -- do you recall writing in such an article, "Bell
           7  claimed he was compiling evidence of a government conspiracy to
           8  conduct illegal surveillance against him and unlawfully bug his
           9  home."  Quote, "'One guess is that I was getting a little too
          10  close to these people,'" close quote, "Bell said."
          11  A.  I have not had a chance to review that article.  I do not
          12  have it in front of me, nor do I recall that.
          13  Q.  Do you recall Bell also saying, "The double standard" --
          14  quote, "'The double standard here is simply incredible,'" close
          15  quote.  Quote, "'They simply don't like the idea that Jim Bell
          16  can simply look through a few databases, find one of their
          17  people and publish the name on the Internet.  They hate that.'"
          18      Do you recall writing that or something like that in one of
          19  your articles on November 21st?
          20  A.  I don't recall the defendant using those exact words.  If
          21  it's in my article, I presume it's as accurate as I could make
          22  it.
          23  Q.  Are you a member of the Cypherpunks mail list?
          24  A.  Sir, again, that is outside the scope of this article.  My
          25  membership is outside the scope of this article, or lack of
           1  membership, and I must respectfully decline to answer that
           2  question, citing my First Amendment privilege as a journalist.
           3           MR. LEEN:  One moment.
           4  Q.  (By Mr. Leen)  Are you aware of the person named Eric Hughes
           5  who wrote the Cypherpunks Manifesto?
           6           THE COURT:  You're way outside the direct, counsel.
           7           MR. LEEN:  No further questions, Your Honor.  Thank
           8  you.
           9           THE COURT:  Any redirect?
          10           MR. LONDON:  Very briefly.  One question.
          11                       REDIRECT EXAMINATION
          12  BY MR. LONDON:
          13  Q.  I neglected to ask you this, but again, in Exhibit 100, on
          14  page 2 of 4, if you would turn your attention to the very next
          15  to the last paragraph.
          16  A.  Yes.
          17  Q.  "Bell repeatedly claims that he won't break the law
          18  himself."  Quote, "'I'm" not going to kill them off,' he said.
          19  'Other people are going to do that.  I'm going to promote a
          20  system.'"
          21      Does that quotation accurately reflect what Mr. Bell told
          22  you?
          23  A.  I do not recall.
          24           MR. LONDON:  Thank you, Your Honor.
          25           THE COURT:  Redirect -- recross, I'm sorry.
           1           MR. LEEN:  Thank you, Your Honor.
           2                         RECROSS-EXAMINATION
           3  BY MR. LEEN:
           4  Q.  Mr. McCullagh, the same article.  Do you recall writing in
           5  that article that in reference to that system Mr. Bell was
           6  talking about, that Laissez Faire City Times has published a
           7  copy of the essay and called it "a thought experiment on one of
           8  the consequences of the digital society"?
           9           THE COURT:  You're outside the redirect, counsel.
          10           MR. LEEN:  Thank you, Your Honor.  No further
          11  questions.
          12           THE COURT:  The witness may be excused.
          13           THE WITNESS:  Thank you.
          14      (Witness excused.)
          15           THE COURT:  Next witness.