FC: Transcript of my testimony in U.S. v. Jim Bell trial

From: Declan McCullagh (declanat_private)
Date: Sun Nov 25 2001 - 13:54:22 PST

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    In early 2001, the Department of Justice served me with a subpoena to
    testify in U.S. v. Jim Bell, an Internet essayist I had written about
    and who was charged with stalking federal agents. I filed a motion to
    quash the subpoena but the judge did not grant it.
    A transcript of my testimony (thanks to John Young), where prosecutor
    Robb London asked that I be declared a hostile witness, is now
    available below. 
    Other documents related to my unsuccessful attempt to quash the subpoena:
    Background on the U.S. v. Jim Bell trial:
               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.
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