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2292

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA, ) Docket No. CR05-5828FDB

)

Plaintiff, ) Tacoma, Washington

) February 27, 2008

vs. )

)

BRIANA WATERS, ) VOLUME 12

)

Defendant. )

)

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE FRANKLIN D. BURGESS

SENIOR UNITED STATES DISTRICT COURT JUDGE, and a jury.

APPEARANCES:

For the Plaintiff: MARK N. BARTLETT

ANDREW C. FRIEDMAN

Assistant United States Attorney

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

For the Defendant: ROBERT BLOOM

Attorney at Law

3355 Richmond Boulevard

Oakland, California 94611

NEIL M. FOX

Cohen & Iaria

1008 Western Ave., Suite 302

Seattle, Washington 98104

Court Reporter: Teri Hendrix

Union Station Courthouse, Rm 3130

1717 Pacific Avenue

Tacoma, Washington 98402

(253) 882-3831

Proceedings recorded by mechanical stenography, transcript

produced by Reporter on computer.
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I N D E X

INDEX OF WITNESSES

==================

WITNESS ON BEHALF OF DEFENDANT: Page

JU-PONG LIN

Direct by Mr. Bloom............................. 2309

Cross by Mr. Bartlett........................... 2314

Redirect by Mr. Bloom........................... 2317

DALE MANN (Jury not present)

Examination by The Court........................ 2321

DALE MANN (Jury present)

Direct by Mr. Bloom............................. 2324

BRIANA WATERS

Direct by Mr. Bloom............................. 2363

Cross by Mr. Bartlett........................... 2425

Redirect by Mr. Bloom........................... 2464

Recross by Mr. Bartlett......................... 2490

Redirect by Mr. Bloom........................... 2493

INDEX - EXHIBITS

EXHIBITS Page

No. 1122 2315

No. A-214 2408

No. A-203 2482
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2294

WEDNESDAY, FEBRUARY 27, 2008 - 8:45 A.M.

* * *

(Jury not present.)

THE CLERK: This is in the matter of the United

States of America versus Briana Waters, Cause CR05-5828.

Counsel, please make an appearance for the record.

MR. BARTLETT: Mark Bartlett.

MR. FRIEDMAN: Andrew Friedman for the United States.

MR. FOX: Good morning Your Honor, Neil Fox and

Robert Bloom for Ms. Waters, who's present.

THE COURT: Yesterday we spent a considerable amount

of time dealing with whether or not Exhibit 169 should be

admitted into evidence in the matter.

I spent time last night at home looking, watching the

Watch video and that presentation of what was put together as

to what was happening in the Randle area and recognized some

of the folks in the movie. The only ones that would appear to

be in there is Mr. Dawson and Ms. Troxel, and it looked like a

person in a wheelchair. I couldn't make out who that was.

The only person I have heard testimony about being in a

wheelchair was Ocean. And then a lot of other folks and the

tree houses and all of that, and the occupation of the logging

company's office in Seattle, and a lot of celebration going on

at the end and all of that.

So I say all of that to let you know that I watched it.
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2295

At the end it was edited by Mr. Varnell, who's testified, and

Ms. Waters, and of course it was her production.

Now, all the discussion yesterday about that video had to

do with why it should be admitted into evidence. I think I

have made copious notes as to what was raised. It went on and

on and on as to what it was intended to be shown and admitted

to this jury for. That had to do with the nonviolent

character trait, if you will, of the Defendant, how she spent

her time in putting all this together, working on this

project. And it's intended to rebut, I guess, the way it was

put in the argument, the evidence of material that had been

given -- alleged to have been given by the Defendant to

Ms. Kolar, and some rebuttal, I guess, as to Mr. Dawson, who

testified here, who talked about the difference between

radical and extremist and that kind of thing.

Of course, the government placed their objection to it, as

to it being irrelevant, having nothing to do with this case,

and for that reason, it should not be admitted.

The Court has looked at the rules that would govern this

kind of thing, because what I am seeing coming out of this is

something that goes to the area of rebuttal and character, and

the character trait being as to nonviolence on the part of

this Defendant.

So you have 403, 404(a)(1), and 405 being the rules that

the Court should consider in dealing with this matter and the
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2296

ones the Court should consider.

403 normally deals with things bringing about a certain

amount of confusion and waste of time and being cumulative and

that kind of thing.

404(a)(1) deals with character evidence. That rule states

that character evidence is not to be admitted to prove conduct

in conformity with the action, except where it may deal with

character of the accused as to a trait, and that trait, of

course, in this case, has been raised as to being her trait

for nonviolence or, as I mentioned, to rebut.

405 deals with the method in regard to prove character, or

rebut it in some way. The rule is clear there, says that it

is intended to be done by testimony as to reputation or by

testimony in the form of an opinion, by going into things that

they know in particular that would reflect on that.

So it involves what a person does, so to speak, if it is

limited to that. Then what you have, and that's the reason

for the rule, whether something becomes too vast or whatever,

that it becomes a collateral issue or calls for a separate

trial on issues and all of that, separate trial on every act.

Now, in looking at the movie and trying to see what that

says as to this, it really, to me -- it talks more in the area

of character, the movie. That's what I see that it's about,

to say what is projected on that movie would be the way this

Defendant would conduct herself, and that's in conformity.
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2297

And the rule says, well, no, you don't do that.

I didn't see anything in this movie that she did, other

than it's her movie. But I don't know about the action of

others saying she adopted that, any more than I could say that

my wife's mothered two kids and she's the mother of the year.

It takes it in an area where it doesn't explain anything.

I'm not seeing here that it does anything that the rules

would allow to be done. I'm seeing, and we've heard testimony

from about, I don't know, ten witnesses, and they have all

dealt with the character issue.

So the question becomes, would proof or failure of proof

of this character trait by itself actually satisfy an element

of the charge or the defense? And I am not finding that it

goes to anything that would satisfy or go to the element.

I think it is different than the other matters that have

been raised as to the folder, because that evidence came in in

terms of fingerprints; it came in in terms of involvement, at

least alleged involvement by the Defendant.

This is isolated. It has nothing to do with this case

that I can see at all, unless you are trying to raise some

political issue, and this trial is not a political trial.

Then the issue becomes, if it shouldn't be admitted to

character, does it rebut anything? Well, if it is admitted,

it should point to the evidence of involvement. It doesn't go

to any of that.
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The matters that this court has heard dealing with items

that are in evidence has to deal with searches, and it came by

the testimony of other folks that have been involved.

I am finding nothing germane as to the issue in this

trial, and I am finding that the foundation for this admission

is inadequate and it's a one-incident thing. It is not

anything that even shows character based on any isolated

event. So I will not admit it.

Those are my reasons.

MR. BLOOM: Did I hear the Court just say it is a

one-incident thing?

THE COURT: I am saying that tape is about a

one-incident occasion, about Randle and the mountain.

The bottom line, as I have stated, is that I will not

admit that testimony. I thought I said before this trial

started, be careful as to putting forth exhibits and things or

talking about things that the Court might not admit.

That's exactly what you did, Mr. Bloom. You walked to the

thing and said, I want to show this movie, if the Court will

permit, and all kinds of things.

I have advised not to do that, and I think that's what you

did.

MR. BLOOM: I did say to the jury, if the Court

permits it, having in mind that prior to my saying that,

probably 20 out of 20 motions that we have filed have been
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2299

denied. So I was cautious about whether or not the Court was

going to permit it, and I certainly contemplated that given

that the prosecutor chose you as the judge, and given your

rulings, that you might not permit it.

THE COURT: All right. But I was asking to exchange,

when you do the exchange, the gist of the testimony and the

exhibits, those things can be taken up out of the presence of

the jury so those kind of things won't happen where you can't

produce what you are telling me you are going to produce.

So I am saying in terms of the movie -- I am not talking

about, she can say what she wants to say. I think that that

point has been clear from Ms. Troxel, from Mr. Dawson, what

was going on in Randle mountain -- I mean Randle, in terms of

the forest, the national forest up there.

There's a way to present it, and it wasn't presented, in

my opinion, in the course of what I recommended and had a full

discussion about how to do these things.

So I guess we live by what we do.

MR. BLOOM: I certainly hope so.

THE COURT: Okay.

MR. BLOOM: I really do hope so.

THE COURT: Okay, I am going to take a quick recess.

MR. BLOOM: I have some things to discuss.

THE COURT: Check and see, if you will, if the jury

is here.
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2300

MR. BLOOM: We have some other things, as well.

THE COURT: Is it something that needs to be taken up

before we proceed?

MR. BLOOM: Oh, yes.

THE COURT: Would you quickly tell me?

MR. BLOOM: Yes. I would ask the Court direct that

the government ask Jennifer Kolar and her attorney to produce

the tape recording that she made of the February 4, 2006,

conversation that she had with the two FBI agents. She has

agreed to cooperate with the government. She has not agreed

to cooperate with us.

It is clear that if the government asks her to produce

that tape, she would have to, under their agreement, produce

it. I think it is direct evidence of particularly what that

witness, Ms. Kolar, said with regard to the disputed line;

that in Special Agent Halla's notes it indicates that Kolar

didn't remember Briana and Lacey being together, whereas in

the 302, it's apparently changed to that they were not close

friends.

The tape would reveal the truth. This is in search for

the truth. I would ask that the Court direct that the

government get that tape from Ms. Kolar so we can use it and

so that the jury can hear the relevant portions of it.

MR. BARTLETT: Your Honor, Mr. Martin has told us and

he has told the Defendant that he considers this
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2301

attorney/client privilege and work product, and I am not going

to impose -- intrude our office into attorney/client or work

product. I am just not going to do it.

MR. BLOOM: If I may. This is in no way, 100

percent -- cannot be attorney/client material. This is an

interview. The attorney wasn't even present at the time of

the tape recording. In fact, it was Agent Halla --

THE COURT: I understand your argument and all of

that. Where is the tape? Do you know where it is?

MR. BLOOM: Where it is? I have no idea. Probably

--

THE COURT: Do they have it and won't give it to you,

is that what you are saying?

MR. BLOOM: No, I don't know if they have it. They

haven't said. I think they may have said, but whether or not

they have said, it's in Mr. Martin's possession, certainly,

and the witness has said it's in Mr. Martin's possession.

It's available. It's right here in the northwest.

THE COURT: All right, I think the argument, the

motion is clear. You are asking this court to order them, is

that what you are saying, to produce that tape?

MR. BLOOM: Yes. To ask Mr. Martin to give them the

tape.

THE COURT: I understand asking. I think asking, and

you are asking and didn't receive. Are you asking the Court
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2302

to somehow exercise some power, order the government or order

Mr. Martin, whichever, I don't know which one you are saying,

to produce a tape that somebody's got?

MR. BLOOM: Yes.

THE COURT: Who is this order to go to?

MR. BLOOM: To both the government and Mr. Martin.

MR. BARTLETT: To clarify for the record, Your Honor,

we do not have the tape. We have never heard the tape; I have

never had it in our possession. This has always been a tape

that Mr. Martin has indicated to us --

THE COURT: I don't think Mr. Bloom is saying that

you have it. He's saying whoever has it should be ordered to

turn it over.

MR. BLOOM: Yes.

THE COURT: All right, are we ready to proceed?

MR. BLOOM: I have two other things.

THE COURT: Okay.

MR. BLOOM: Three other things, actually.

I want to give the Court and put on the record a list of

witnesses that we have decided not to call because we are very

concerned that if we call them the Court will strike their

testimony and it would not look very good in front of a jury.

Those four witnesses are Anthea Lawrence --

THE COURT: Wait, wait. Slow it down. Who will it

be?
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2303

MR. BLOOM: Anthea Lawrence.

THE COURT: Okay.

MR. BLOOM: Carolyn Hart.

THE COURT: Okay.

MR. BLOOM: Naomi Skoglund.

THE COURT: Okay.

MR. BLOOM: Matthew Wright.

THE COURT: All right.

MR. BLOOM: I have two other matters.

I am informed by a person who we had intended to call as a

witness, and we are probably not going to call -- and that

would be Sarah Vekesi -- that sometime during the proceedings

yesterday, Mr. Friedman walked up to her in the hallway and

tried to talk to her, asked her if she was Ms. Vekesi; that

Mr. Friedman was alone, he did not have an investigator with

him, and he asked her what is she going to testify to.

I am very troubled by that, and importantly, what

Ms. Vekesi said is "Who are you?" Mr. Friedman then

identified himself, but not prior to asking her questions, and

I am very troubled by that. For one thing, aside from not

identifying himself, which I think is a problem both

professionally and ethically in the context of this case, he

also potentially made himself a witness in this case. What if

Ms. Vekesi had said something that the prosecution wanted to

offer in evidence? So that's very troubling.
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2304

I'd ask the Court to inquire of Mr. Friedman as to what

happened and whether or not that's factually accurate and

whether or not he has an explanation for it.

MR. BARTLETT: Your Honor, it's a little unusual to

have Mr. Bloom complaining to us about wanting to talk to a

witness, when in this entire trial he's complained about their

inability to talk to witnesses.

What happened? Nothing. Ms. Vekesi did not speak with

Mr. Friedman. There's nothing to argue about. Mr. Bloom has

made his record, and I say we move on to something a little

more relevant.

THE COURT: You are not going to call her, is that

the idea?

MR. BLOOM: I have decided not to call her.

I want to say, Mr. Bartlett's presentation here -- yes, we

wanted to talk to witnesses. We didn't go up to them and talk

to them and misrepresent. Yes, we asked; we went through the

proper channels to try to talk to witnesses. We wrote

letters, we made requests, we made motions, all of which, of

course, were denied. We did our best within the rules to

speak to witnesses.

What I am saying to the Court is, it appears that

Mr. Friedman went beyond the rules in so doing.

THE COURT: All right. But you are not going to call

Ms. Vekesi, and those are the reasons you've stated for the
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record?

MR. BLOOM: I am not saying that's the reason. I am

saying it has nothing to do with why we are or are not going

to call her.

THE COURT: But you are not going to call her?

MR. BLOOM: That is another issue; we are not going

to call her.

THE COURT: Okay, all right. Is that it?

MR. BLOOM: That's it. I would ask the Court to ask

Mr. Friedman to get the facts out so that if there's any

dispute -- I gather from his silence that what I have

presented is the truth.

THE COURT: I don't see anything for the Court to

rule on, on that. That's outside this trial, in terms of

folks saying, just like me dealing with the things that you

may say outside the jury.

Let's deal with stuff that is going to go before the jury.

You say she's not going to testify. I am not finding anything

about that, a violation of something, to shut down everything

to deal with this.

You folks haven't gotten along very well, that I can see,

since I have been coming out here on this thing. We are in,

what, the third week, in terms of the lawyers getting along,

talking to each other civilly.

MR. BLOOM: I think they are involved in fraudulent
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2306

activity, so I don't really get along with them.

THE COURT: That's another issue, you want to argue.

I want to talk about, so I can get the jury out here.

Have you completed now, things you want me to consider?

MR. BLOOM: We have a stipulation that Mr. Fox will

address.

MR. FOX: Your Honor, I think the first order of

business, there's a stipulation that needs to be read into the

record regarding Exhibit A-97 that we've reached.

THE COURT: That's the time when the jury is out

here.

MR. FOX: Yes. Okay.

THE COURT: Do I have a copy of it?

MR. FOX: I thought I left one on your chair, Pat.

MR. BARTLETT: We've read the stipulation and

actually signed it.

MR. FOX: I am sorry, I thought I left the original.

THE COURT: I want to stay in the loop.

MR. FOX: Sure. I thought I had left a copy.

THE COURT: Are we ready for the jury now?

MR. BARTLETT: I have one issue.

I notice on the witness list that they indicate they are

going to call Dale Mann. I am aware of what Mr. Mann's

testimony is, and I am also aware that the court has ruled, at

least in regard to the report that we received as to what his
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2307

opinion was; it was irrelevant.

If Mr. Mann was the expert that was going to say, to be a

bomb it had to explode and there had to be supersonic shock

waves and all that, the Court has already said that isn't the

correct definition. Therefore, any testimony about that is

not only irrelevant, it would be confusing to the jury.

But we haven't had an offer of proof as to why Mr. Mann is

going to be called in this trial.

THE COURT: Well, perhaps somebody will say, but I

want to take that matter up before that witness is called.

And I keep saying that.

MR. FOX: Right. Well, this is the first we've heard

from the government that they are objecting to Mr. Mann's

testimony.

Mr. Bloom?

MR. BLOOM: He's going to testify as an expert as to

his understanding of the nature of the device or devices used

in this event.

THE COURT: Will you be asking questions in violation

of the Court's order and ruling in this particular issue?

MR. BLOOM: Of course not.

THE COURT: Well, I will take that up, and I want to

take it up with Mr. Mann and you before he's called, because I

will be concerned whether he deliberately violates my ruling

or whether you ask a question in violation of my ruling. I
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2308

will be strictly concerned about those two, and I just want to

say that.

Are we ready to go? And I want to take that up before he

takes the witness stand.

MR. BLOOM: Sure. We have one short witness before

him, so if you want to excuse the jury.

THE COURT: I will handle that. I want to take it up

before he testifies, that's all I am saying.

MR. BLOOM: If you want to do it now, we can do it

now.

THE COURT: I want to get the jury out here.

MR. BLOOM: That's fine. Let's do whatever you want

to do. You are in charge.

THE COURT: Well, I am happy to hear that.

Would you bring in the jury?

(Jury present.)

THE COURT: All right. You may be seated.

Call your next witness.

MR. FOX: Your Honor, before that, we have a brief

stipulation.

THE COURT: All right. Go ahead.

MR. FOX: The United States of America, by and

through Jeffrey Sullivan, United States Attorney for the

Western District of Washington, and Mark Bartlett and Andrew

Friedman, Assistant United States Attorneys for said District,
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2309

and Defendant Briana Waters, and her attorneys, Neil Fox and

Robert Bloom, agree and stipulate that:

Exhibit A-97 was the photograph shown to Stanislas

Meyerhoff on March 17, 2006, in the presence of BATF Agent

John Comery.

Dated this 19th day of February 2008 and signed by myself

and Mr. Fox, Mr. Bartlett, and Mr. Friedman.

Thank you.

THE COURT: All right.

MR. BLOOM: Yes, we'd like to call Ju-Pong Lin.

THE COURT: Let me have you raise your right hand to

be sworn.

JU-PONG LIN, called as a witness, duly sworn.

THE COURT: Just come around and take the witness

chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Good morning.

A. Good morning.

Q. Could you state your name and spell your name, please, and

if you would, speak into the microphone? Thanks.

A. All right. My name is Ju-Pong Lin. It's spelled J-U dash

P-O-N-G. Last name is L-I-N.

Q. Where do you live?

A. I live in North Providence, Rhode Island.
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2310

Q. How long have you lived there?

A. I've lived there, in Rhode Island, for four years.

Q. How old are you?

A. Forty-six.

Q. Do you have a family?

A. Yes, I do.

Q. Could you tell the jury, are you married?

A. Yes, I am married, and I have two children, a 15-year-old

and an eight-year-old.

Q. Do they live with you?

A. Yes, they do.

Q. What are you doing in Rhode Island?

A. I am a faculty at Goddard College, which is a low

residency college, so most of my work is done from home, and

then I also travel to our two campuses in Plainfield, Vermont,

and Port Townsend, Washington.

Q. Did there come a time in your life when you lived in the

Olympia area?

A. Yes, I taught at the Evergreen State College from 1996

until 2003, and I lived in Olympia at that time.

Q. And in what department were you or how was it divided,

could you explain to the jury?

A. Sure. We didn't have departments, we had learning units.

I worked in the moving image group and taught mainly film and

video, and I also taught women studies, international women
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2311

studies, that kind of thing.

Q. In connection with your employment at the Evergreen State

College, did you ever meet a person named Briana Waters?

A. Yes, I did.

Q. How did you meet her?

A. Briana was one of the students in a program that we taught

regularly called media works, which is an introductory film

and video production course -- production and theory. And

when I was teaching with Laurie Meeker, Briana was in that

program. And then after that program, Briana continued

studies with me as an independent study.

Q. Do you see Briana in the courtroom?

A. Yes.

Q. Could you point her out?

A. She's right there.

MR. BLOOM: Indicating Briana Waters.

BY MR. BLOOM:

Q. Could you tell us about your interactions with her?

A. Sure. I have had many students in my years at Evergreen.

Some students are more memorable than others. Briana was

definitely a very memorable student, especially in working

with her in advisory independent study.

We had a pretty close relationship. Independent study

means that I was meeting with her once a week one-on-one, and

I found Briana to be a very hard worker. She was extremely
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2312

ethical.

I was really impressed by her commitment to social

justice; ideals of democracy, really. And she was very

sophisticated in her thinking about media representation and

how to use it in an ethical and responsible way.

Q. The particular project she was working on, do you remember

anything about it?

A. I do. At the time she was in media works, I believe it

was in the last semester of media works, she began shooting

some video of a documentary that she planned that was about

the Gifford Pinchot Forest and efforts to log it

unsustainably, and Briana was interested in the campaign to

keep the forest from being logged in an unsustainable way.

So in the independent study she did with me, she did, I

believe, two semesters of contract with me. In one semester

she continued to shoot footage, videotape.

What was really impressive about that semester was she was

really committed to representing very different perspectives

and building alliances between groups that historically have

been at odds with each other in the Northwest, particularly

loggers and the Earth First activists. It was a rare thing to

see someone really build conversation and alliance between

those groups.

In the second semester, she continued to collect footage

and interviews, and then also completed a short promotional
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2313

piece, and then finished the semester without completing the

full documentary.

Q. And to your knowledge, did she continue after she

graduated to produce the documentary?

A. Yes, that's my understanding. I left Evergreen not too

long afterwards.

Q. Did there come a time after that that you found your way

to her website?

A. I did recently. I am not sure how long ago, maybe six

months ago; I heard about this case, and so I went on the

website to learn more about it. And I was interested in

seeing Briana's video, so I sent an e-mail through the website

to try to order it, and there was no answer for quite a while.

And then after that, I got really busy with preparing for

the residencies in Vermont and in Washington, and so it was, I

believe, just before I went to Vermont that I received an

e-mail saying that there had been some technical problems with

the website. So, you know, I didn't follow-up. I never saw

the video, but I plan to.

Q. So is it your sense that the website really wasn't very

well maintained?

A. It seemed as if it was not updated, correct.

MR. BLOOM: I thank you. I don't have any further

questions. I don't know if these men have any questions for

you.
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2314

MR. BARTLETT: Your Honor, if I could approach the

witness with what's been previously marked as Government's

Exhibit 1122.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. Good morning.

A. Good morning.

Q. Could you take a few minutes and take a look through the

document I just handed you and tell me if you recognize it?

A. Sure.

Yes, these are the evaluations for Briana while she was

working on the documentary as an independent contract with me.

Q. As I understand it at Evergreen, especially on independent

studies, there's three parts to class work: Beforehand the

student tells you, here's a contract and this is what I think

I am going to get done, which is the first page?

A. Yes.

Q. And then at the end of the semester, you kind of look back

and say, well, you said you were going to do this, and here's

how much you got done on it?

A. Correct.

Q. Then there's also a third part of it where the student

actually does kind of their own self-evaluation and

self-grade?

A. Yes, that's correct.
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2315

Q. And that's what you have in front of you?

A. Yes.

MR. BARTLETT: I would like to offer Government's

Exhibit 1122.

MR. BLOOM: Let me continue reading it before I take

a position.

No objection.

THE COURT: It is admitted.

(Exhibit No. 1122 admitted.)

BY MR. BARTLETT:

Q. Looking at that document, does it refresh your memory as

to -- you indicated on direct examination that Ms. Waters did

not finish the video she was working on?

A. She did not complete the editing of the documentary.

Q. Didn't finish. And part of the reason she didn't complete

the editing of the documentary is because she was also very

involved in the WTO protest that occurred in Seattle?

A. Correct.

Q. She still graduated, though, in December of 1999?

A. Yes.

Q. You felt she'd done enough that even though she hadn't

finished the video it was close enough?

A. Yes, it's very common, especially with independent

contracts, that as a student progresses through the semester,

their focus might expand or shift, and so that's what
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2316

happened. To me, the main goal of the contract was to gain a

deep understanding of the documentary production and ethics

and the issues around that.

So her involvement in the WTO included, you know -- was a

different perspective; it was a different issue, but it was

still within documentary production. So I felt that it met

her goals, you know, although it didn't meet them in precisely

the way she had planned.

Q. I think at the very end, if you would look at the last

sentence on the last page, basically the next to the last

paragraph that starts "And I hope to start work as soon as I

finish the GP documentary." Do you see that?

A. On the first page?

Q. No. If you look at the bottom right-hand corner, you are

going to see Bates stamp number, and I'm looking at page 1058.

A. Okay.

Q. Do you see two small paragraphs at the top?

A. Yes.

Q. Do you see where Ms. Waters indicates that she hopes to

finish the GP -- I assume that refers to the Gifford Pinchot?

A. Gifford Pinchot, correct.

Q. -- documentary by the end of January?

A. Uh-huh.

Q. I am assuming that also played into your mind that she was

just about done with it so you were going to let her graduate?
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2317

A. Right.

MR. BARTLETT: No further questions.

REDIRECT EXAMINATION

BY MR. BLOOM:

Q. I would like to read some of these things. First I would

like to read from something that you wrote.

MR. BARTLETT: The document speaks for itself, Your

Honor.

THE COURT: He may go ahead. Let him ask the

question.

BY MR. BLOOM:

Q. Am I correct that in front of you it's really two

documents? It's your evaluation of Ms. Waters; is that

correct?

A. That's correct.

Q. And the other, that's called faculty evaluation of student

achievement?

A. Uh-huh.

Q. That's two pages?

A. I believe mine is one page, and then the following page is

Briana's self-evaluation. Student's own evaluation of

personal achievement.

Q. I am mistaken; there's actually three documents.

A. Correct.

Q. The first page is individual learning contract, right?
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2318

A. Correct.

Q. The second page is one page also?

A. Uh-huh.

Q. Faculty evaluation of student's achievement. Right?

A. That's correct.

Q. And the next two pages are student's own evaluation of

personal achievement?

A. Correct.

Q. Let's talk for a moment about your evaluation, page 2 of

this document.

A. Uh-huh.

Q. Just reading from the last part, the last paragraph: "The

only regret I think she may have is that she completes her

undergraduate education with terrific experiences, but perhaps

without the closure on this project that would have been most

satisfying. I have no doubt, however, that she will finish

the project eventually and go on to find important ways to put

her training to excellent use. I have very much enjoyed

working with Briana and wish her the best of luck."

Is that what you wrote?

A. That is what I wrote.

Q. Did anybody force you to write that?

A. Absolutely not.

Q. Turning now to the last two pages, the student's own

evaluation of personal achievement. Was this submitted to
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2319

you, and you eventually signed it, is that correct?

A. That's correct. The typical process is that the student

writes their self-evaluation and brings it to a meeting with

the faculty, the primary faculty. And then based on that

meeting and the student's self-evaluation, then the faculty

writes an evaluation.

Q. Could you look at the bottom of that page?

A. Yes.

Q. And is there a paragraph that you remember reading that

goes like this:

"As video support for my affinity group during WTO, I

gained more valuable experience with video activism and

activism in general. Working within a cluster of affinity

groups, we dealt with many issues that surfaced during the

process, such as race and gender dynamics and timing. Our

groups are working together in a post WTO effort to become

more educated and more prepared and to make our community of

activists in Olympia stronger and more effective. My dream of

starting a video collective has started to garner support, and

I hope to start work on that as soon as I finish the GP

documentary, which will happen by the end of January.

"As I interview the residents of Randle and my activist

friends about their well deserved victory, I am very excited

to produce a positive representation of the encouraging

triumph of a grassroots effort over a huge, evil corporation.
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2320

I have not lost sight of the bigger picture and plan to

portray a strong message of inspiration to be carried into

campaigns in the GP National Forest and beyond."

Do you remember reading -- her writing that?

A. Yes.

Q. At some point?

A. Yes.

Q. You signed that document as well; is that right?

A. That's correct.

Q. Is that Briana Waters?

A. That's Briana Waters.

MR. BLOOM: Thank you.

MR. BARTLETT: Nothing further, Your Honor.

THE COURT: All right. Can this witness be excused?

MR. BLOOM: Yes. Thank you very much.

THE COURT: Next witness.

MR. BLOOM: Yes, Dale Mann.

THE COURT: I want you to step out and leave your

books on the chair before you hear the next witness.

(Jury not present.)

THE COURT: Mr. Bloom.

MR. BLOOM: What do you want from me? I am calling

the witness Dale Mann.

THE COURT: I want the witness in the courtroom.

MR. BLOOM: Oh. I will get him.
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2321

This is Mr. Mann. This is Judge Burgess.

THE COURT: Mr. Mann, would you come forward.

THE WITNESS: Good morning.

THE COURT: You intend to testify in this case,

right?

THE WITNESS: I do.

THE COURT: I want to place you under oath as we go

forward.

DALE C. MANN, called as a witness, duly sworn.

EXAMINATION

BY THE COURT:

Q. I just want to ask a couple of questions because of the

issue as to your testimony.

The Court has issued an order as to your testimony in the

case, back in January, and the Court is lead to believe that

you would testify that the device used in this particular case

was not an incendiary bomb. So the Court had issued a ruling

to this effect, and it's in the order.

Have you had the benefit of the order? Has anyone shown

it to you?

A. I have seen it.

Q. You have seen it. The Court's ruling was this:

"In light of the foregoing" in this order, the

"defendant's proposed expert (Mann) is precluded from

testifying that to be an incendiary bomb under the statute it
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2322

must explode, as this opinion is erroneous and contrary to

law. The proposed experts may give their opinion that the

device used was a destructive device or not, so long as the

opinions are confined to the definition of a destructive

device as set forth in this opinion."

Is that your understanding of the order?

A. Yes, it is.

Q. My question to you, do you intend to testify to anything

different than -- contrary to this court's order?

A. I don't believe so.

MR. BLOOM: Excuse me?

A. I don't think I will, Your Honor.

BY THE COURT:

Q. All right. The problem would be this: If it's different

than this, and you violate the order, there are consequences,

as you well know?

A. I understand.

THE COURT: I just want you to be aware of that. As

long as you are not violating the order, you will be allowed

to testify.

Now --

MR. BARTLETT: Your Honor, if I could just be heard.

If he's not going to say that an incendiary bomb must

explode, then I don't know what his opinion is, because the

only opinion I have from this expert is that an incendiary
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2323

bomb must explode to be an incendiary bomb.

If he's changing that opinion, I would like his new

opinion, and I would like his basis for the new opinion.

Because all I have is things that are excludable. That's the

only opinion I have from Mr. Mann.

THE COURT: Is there an update of anything as to his

testimony?

MR. BLOOM: No. He understands the operative

paragraph of this court's order.

THE COURT: Is what I read.

MR. BLOOM: That he's precluded from testifying that

to be an incendiary bomb under the statute it must explode.

He's not going to testify to that part of his findings. He

feels, as an expert, otherwise, but he's not going to be asked

that question by me and he's not going to give the answer that

is prohibited by the Court.

However, the next sentence says: "The proposed experts

may give their opinion that the device" -- actually it says

devise but I think you probably meant device -- "used was a

destructive device or not, so long as the opinions are

confined to the definition of a destructive device"

-- devise -- "as set forth in this opinion."

He will testify consistent with following the Court's

order. That's what people do.

THE COURT: That was my order. If that's the
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2324

situation, he may testify.

I am pointing out my order so everybody is made aware of

my order, so if something is contrary to that, then I will

deal with that. That's all I am saying.

MR. BLOOM: Okay.

THE COURT: Are you ready?

MR. BLOOM: I'm ready.

THE COURT: Bring in the jury.

(Jury present.)

THE COURT: All right.

You may be seated.

MR. BLOOM: This is Dale Mann.

THE COURT: Let the record reflect that he's already

been sworn.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Good morning, Mr. Mann.

A. Good morning.

Q. Could you spell your name for the jury, please?

A. My name is Dale Mann. My last name is spelled M-A-N-N.

Q. What do you do for a living?

A. I am a forensic scientist.

Q. How old are you?

A. I am 52 years old.

Q. Do you have a family?
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2325

A. Yes, I do.

Q. Who is in that family?

A. I have two daughters and a lovely wife.

Q. Where do you live?

A. I live here in Washington.

Q. In what city?

A. In Gig Harbor.

Q. Do you have a business within which you work?

A. Yes, I do.

Q. What is the name of that business?

A. I am currently a principal in a company called MDE, Inc.

It is a forensic engineering and forensic laboratory company

based in Seattle.

Q. I want to go back. Where did you grow up?

A. I grew up here in Washington.

Q. And did you go to college?

A. Yes, I did.

Q. And where was that?

A. I went to the University of Washington, and I graduated in

1978.

Q. That would be the University of Washington in Seattle?

A. Yes, it is.

Q. And after that, what did you do?

A. I graduated with two degrees from Washington, one in

chemistry and one in oceanography.
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2326

Following my graduation, I worked at the Battelle

Northwest Laboratories, which is a not-for-profit research

company out of Richland, Washington. Did a lot of

environmental chemistry work.

Following that, in 1981, I gained employment with the

Washington State Patrol Crime Laboratory. I spent

approximately nine years in Seattle, and then was promoted to

supervisor in the Tacoma crime laboratory, where I spent the

next nine years.

Q. May I interrupt you there? You said Washington State

Patrol. Is that a law enforcement agency?

A. Yes, it is.

Q. You worked for how long for a law enforcement agency?

A. Approximately 17 years.

Q. Please continue. I am sorry to interrupt you.

A. Then in 1998, I left the State Patrol and joined MDE as a

principal.

Q. What year was that, I'm sorry?

A. In 1998.

Q. Can you tell us about your work experience, what have you

worked on?

A. Well, with a degree in chemistry, I first -- I was always

working in the field of chemistry, of course. And with the

crime lab, that involved a lot of work in all matters that

involved knowledge of chemistry, which would include drug
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2327

work, investigation of fires, explosions, bombings, and on up

to microanalytical analysis where I became involved in

analysis of paints, plastics, building materials, soils,

glass, and all that kind of thing.

All along that 17 years, I also worked a lot in what we

call general criminalistics, which is the field of impression

evidence and deposit evidence and that type of thing.

Q. What is impression evidence?

A. Impression evidence would be things like tool marks,

footprints, that type of thing, where one object will leave a

mark on the second object, and that mark can be evaluated to

see whether or not the two objects ever were in contact with

each other.

Q. In connection with that, have you ever done work, either

in your private capacity or working with the state, to see if

there had been damage to metal, sheet metal?

A. Impression evidence involving metallic objects is a field

called tool marks. I am aware of that type of work, although

I don't normally get involved directly with that type of

analysis, though I will look at other type of impression

evidence that might -- for instance, painted objects, or

painted metal objects and things like that, to look at

scratches. But I am familiar with the deformation of metals

and that because I do work closely with a metallurgist at MDE.

Q. Let me continue with more of your experience. Have you
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2328

ever worked on cases involving fire?

A. Yes, I have.

Q. Could you tell the jury about that, please?

A. In the crime laboratory, fire, arson, bombing, explosives

was one of my primary interests. I spent the bulk of my

casework time working on evidence from those types of

investigations.

I was, at one time, the only chemist in Western Washington

doing fire debris analysis work and explosives work. I had

that capacity for probably five or six years where I was

virtually the only person as part of the state. So I saw a

large variety of case work from all the counties in this area.

Q. Have you had any special schooling?

A. Yes, I have. I have attended schools put on by the FBI,

by the ATF, by McCrone Institute, who teaches a lot about

microscopy. By the National Center for Forensic Science in

Florida. I have also taught at the FBI several times, and

have been a guest lecturer at ATF as well.

Q. Have you published anything?

A. Yes, I have. I have eight or ten different publications

dealing specifically with laboratory analysis of arson

matters.

Q. Now, have you done what could be called technical

committee work?

A. Yes. I have served on a couple of different national
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2329

committees. I am on two currently. One is the International

Association of Arson Investigators Technical Committee. It's

a group of scientists from around the country that writes

articles and peer reviews articles of a technical nature.

The other committee is the Technical Working Group on Fire

and Explosives, and I am on a standards committee within that

working group where we write and review methods for analysis

of different laboratory procedures.

Q. The Technical Working Group on Fire and Explosives, do

they call that TWGFEX?

A. Yes. The acronym is TWGFEX, yes.

Q. In connection with that, does TWGFEX have definitions of a

glossary of terms?

A. There are several different glossary terms that have been

produced by that committee, depending upon -- or geared toward

different types of evidence. There's one for fire debris

analysis and liquid accelerants, and there's another one for

explosives.

Q. Have you ever seen the glossary of terms?

A. Yes, I have.

MR. BLOOM: Can I ask -- I'm sorry, Pat; this is my

fault -- could he be shown Exhibit A-180?

Thank you.

BY MR. BLOOM:

Q. Mr. Mann, I would ask that, when you get that, if you
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2330

could look at the second page of that document.

First of all, does that look familiar to you, the

approximately four pages that are in front of you? Have you

seen those before?

A. Yes, I have.

Q. And what is it? Could you identify for the jury what it

is you are looking at?

A. This is from the TWGFEX reference library, and this is a

glossary of terms.

MR. BARTLETT: Your Honor, I object to this line of

questioning. I believe that they are going to attempt to

introduce this and discuss this. The definition of bomb and

incendiary bomb is a legal matter that the Court will provide.

This type of testimony will simply be confusing under 403 and

shouldn't be brought before the jury.

MR. BLOOM: Do you want me to address this?

THE COURT: Not right now. I want to send the jury

out so we can get into that.

Leave your books on your chair. Don't discuss the case.

(Jury not present.)

THE COURT: Okay, Mr. Bloom.

MR. BLOOM: Two things. One is, we will, absolutely,

follow the Court's instruction that Mr. Mann is precluded from

testifying that to be an incendiary bomb under the statute it

must explode. He will not testify to that. I am not going to
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2331

ask him that.

I am going to offer this document in evidence, and I do

want to point out that one of the Government's witnesses,

Bradley Cooper, already testified about these definitions, and

his testimony is in evidence regarding this glossary of terms.

So they want to have it both ways; their witness can

testify about it and our witness cannot. I don't understand

that.

MR. BARTLETT: First of all, to clarify the record,

that came in during cross-examination of Mr. Cooper, so they

can't claim that this is it.

Second, Your Honor, under 403, this is simply irrelevant.

Giving them a definition that is not material to this case is

a waste of time and it is not allowable under 403.

THE COURT: Now, my question to you, Mr. Bloom, is

that your intent to show the definitions under this glossary?

MR. BLOOM: I intend to talk to this witness about

some of the terms that are defined in this glossary; yes, I

do.

THE COURT: All right. So you want him to refer to

what the definition of bomb is under the glossary; is that

correct?

MR. BLOOM: That may be one of the questions I ask

him.

THE COURT: Well, any other reason for it?
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2332

MR. BLOOM: I want to ask him about combustion. I

want to ask him about deflagration. I want to ask him about

detonation. I want to ask him about explosion. I want to ask

him about explosive. I want to ask him about explosive

compound. I want to ask him about explosive mixture.

THE COURT: And that's what these definitions are

about, you're going to ask him about those things?

MR. BLOOM: I am not finished. I am going to ask him

about fuel. I'm going to ask him about fuse, f-u-s-e, and

fuze, f-u-z-e. I am going to ask him about high explosive. I

am going to ask him about incendiary. I am going to ask him

about pyrotechnic mixtures. I want to ask him about safety

fuse.

It's just on this glossary of definitions.

THE COURT: And you want to ask him according to

these glossary definitions?

MR. BLOOM: I want to ask him to explain to the jury

what those things are and what they mean.

THE COURT: And you want to use the glossary

definitions to do that?

MR. BLOOM: Yes.

THE COURT: Then I am going to grant the motion. You

will not admit it into evidence. You can ask those questions

of him and he can answer them. But he is not to refer and

take this definition and supplant it in the order that I have
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2333

given here.

MR. BLOOM: Sir, I have no intention of asking him

whether or not to be an incendiary bomb under the statute it

must explode. That is what I am precluded from doing.

THE COURT: Understand my ruling. My ruling is that

I am not going to admit this into evidence. That's my ruling.

Accept it and move on.

MR. BLOOM: We accept it. We have accepted all your

rulings so far.

THE COURT: I do not need your comment, Mr. Bloom.

Are you ready now to continue to examine this witness?

MR. BLOOM: I am, if the government is.

MR. BARTLETT: Yes, Your Honor.

THE COURT: All right. Bring in the jury.

(Jury present.)

THE COURT: All right. You may be seated.

Continue, Mr. Bloom.

MR. BLOOM: I don't know -- could I get the last

item?

Court Reporter: "Question: Could you identify for

the jury what it is you are looking at?

"Answer: This is from the TWGFEX reference library, and

this is a glossary of terms.

"MR. BARTLETT: Your Honor, I object to this line of

questioning."
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2334

MR. BLOOM: Thank you.

I offer this into evidence.

THE COURT: It's denied. So continue.

BY MR. BLOOM:

Q. Now, does TWGFEX, the Technical Working Group for Fire and

Explosives, define commonly used terms that relate to arson

investigation?

A. Yes, they do.

Q. Is the term "explosive" defined?

A. Yes, it is.

Q. And what is that definition?

A. The exact definition that that committee came up with was

"A chemical substance or mixture capable of producing an

explosion."

MR. BARTLETT: I am going to object to this, Your

Honor. They are basically trying to read into the record what

was excluded under the prior objection.

THE COURT: Mr. Bloom, keep my ruling in mind,

please.

MR. BLOOM: I thought you said I could do this?

THE COURT: Keep it in mind, is what I ask you. Keep

my ruling in mind, and continue.

MR. BLOOM: Correct me if I am wrong, I can't --

THE COURT: Ask the question. But remember my

ruling. How many times do I have to say this?
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2335

BY MR. BLOOM:

Q. Could you tell us, yes or no -- just yes or no -- in the

glossary of terms, the TWGFEX glossary of terms, is there a

definition for the word "bomb," just yes or no?

A. Yes.

Q. And whatever that definition is, do you, as a scientist,

agree with that definition?

A. I do.

Q. Are there other definitions in the TWGFEX glossary of

terms? In general, about how many are there? Maybe 60 or 80

or 100?

A. Yes. There are approximately four pages of definitions.

Q. Are there any with which you do not agree?

A. I don't believe I have ever reviewed this glossary with

that in mind, so I couldn't say for sure.

Q. Okay. Now, in your work investigating and analyzing

evidence of fires and arsons and bombings and explosives, have

you ever come across what could be called delay devices?

A. Yes, I have.

Q. Could you explain to the jury what that is?

A. Generally speaking, a delayed device would be a component

or series of components that will allow the person who wants

to set the device off, to safely set it off and be able to get

out and away from their device safely. A delay device can be

anywhere from a few seconds to hours, even, if you design it
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2336

appropriately.

Q. How many kinds of delay devices have you encountered?

A. I would say I have probably seen probably half a dozen

different types of delay devices. Some are very common, you

tend to see them over and over again.

Q. Tell us about -- I will get to that later.

Have you ever investigated arson fires in which gasoline

was used as an accelerant?

A. Yes, I have.

Q. Could you describe to the jury what an accelerant is?

A. An accelerant, in terms of a fire set, would be any

material that would be used to rapidly propagate a fire; to

reproducibly and reliably propagate a fire.

Q. Could you perhaps put that in little more lay terms?

A. If I want to be sure to set my house on fire, I will use a

material -- I would want to use a material that I know is

going to start easily and is going to produce a lot of heat

and something I know is going to start the structure on fire.

Any material I use to accomplish that can be called an

accelerant.

Q. Do you know, have the burning characteristics of gasoline

been studied?

A. Yes. Gasoline as a product is a well studied material in

terms of fire dynamics.

Q. Is there information -- I assume there's literature about
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2337

this; is that correct?

A. There's quite a bit of literature about a lot of things

that burn these days. The study of science and combustion,

it's really a science these days, and gasoline is a fuel

that's used as a benchmark for a lot of things. So it's a

pretty well-studied commodity.

Q. Has there been study about what could be called heat

capacity?

A. Yes.

Q. If so, could you explain what that means?

A. Heat capacity is a term that defines how much energy an

object contains and how much energy it will release when it

burns. So the heat capacity is usually defined in terms of

mass. So a kilogram of gasoline contains so much energy when

it burns.

A kilogram of plastic will contain so much energy when you

burn it.

Those are standards that you can actually measure, and it

gives you a way to compare one material to a second material

in terms of the amount of heat or energy that it will give off

as it burns.

Q. Is there such a thing -- maybe you just covered it -- as

heat release rate?

A. The heat release rate is a little different. That tells

you how fast it gives off energy. For instance, since we are
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2338

talking about gasoline, it tends to give off its energy rather

quickly, but then burns out rather quickly.

There are other products that give their energy out a

little slower and maybe burn a little longer. But they may

have the same heat capacity, or they contain the same energy,

but the heat release rate is different for the two of them.

Q. Is what could be called flame height at times a factor in

your work?

A. Flame height is a quantity that's studied mostly for

liquids with known surface areas. Gasoline is one of those.

If I have gasoline in a bucket with a small diameter, it is

going to have a lower flame height than if I have a larger

diameter bucket.

You can relate flame height to diameter for these types of

burning liquids.

Q. How about the term "ignition energy," could you explain

that to the jury, please?

A. Ignition energy is how much energy you have to put into

the material before you can get it to start to react and

combust.

So the ignition energy for gasoline is different than the

ignition energy for methane, natural gas. Those have two

different -- require different amounts of energy to get them

to start to react and burn.

Q. Could you explain to the jury what's meant by the term
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2339

"flash fire"?

A. Flash fire would be, in the most general sense, would be a

fire that, in which there are a lot of vapors in the air and

those vapors are consumed very rapidly, and then the fire goes

out because there weren't very many vapors left.

The thing to understand about fire is that solids and

gases don't burn. You have to have vapors. Vapors are what

result in the visible phenomenon we see as flame.

A flash fire is simply a fire in which there are a lot of

vapors present. You can ignite those. The flame goes across

that environment because it's prime for fire, but then once it

does that, there aren't any vapors left to burn and the fire

goes out or will subside.

Q. Could you explain to the jury the concept of controlled

burning?

A. Well, a control burn is one where you can kind of define

or confine your fire and have a very localized concentrated

fuel source that will burn for a prolonged period of time.

Q. Fighting forest fires you hear sometimes controlled

burning, where they burn a section to stop the progress of the

oncoming fire. Do I have that right? Is that related?

A. That could be one use of that term. You would have a fire

that you are going to confine, keep it focused. You are going

to stay in control of it.

In the case of a forest fire, what you are doing is
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2340

removing fuel that's in front of the path of the fire. So

when the fire, when your uncontrolled fire reaches that

burned-out barricade, and there's no field there, it helps you

to put the entire fire out.

Q. Is there something you could tell the jury about the

difference between large scale and small scale in your work?

A. We've done, over the course of my 28 years investigating

fires and explosions, we've done lots of testing of fires and

ignition scenarios. Some of them are very small scale, where

we'll do them in the hood and we will downsize the events so

we can study just the general dynamics of it.

And then we've done full-scale tests where we've burned

down entire shopping mall support to study how a fire, once it

gets going, for instance, will progress through an attic or

how much heat we need to produce to start a ceiling on fire

that's 30 feet up, that kind of thing.

So we have done dozens and dozens of scaled testing over

the years.

Q. Is there a difference between combustion and explosion?

A. Yes, there is.

Q. Could you explain that to the jury, please?

A. It's more a matter of rate of reaction. An explosion

generally is a supersonic reaction front that travels at the

speed of sound or faster. It results in the reaction of all

your ingredients in a very short amount of time, usually
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2341

milliseconds, thousandths of a second or so.

A combustion is a slower rate of reaction. In a normal

fire, you know, a fireplace burning or even gasoline burning,

that is considered just normal combustion where it's a very

slow rate of reaction. It does not result in any kind of

pressure or shock wave, whereas an explosion usually will

result in a shock wave.

Q. Moving on to this case, your work on this case, did there

come a time sometime last year where Mr. Fox contacted you?

A. Yes.

Q. Did you meet with him?

A. Yes, I did.

Q. Did he provide to you some materials, written materials,

with regard to this case?

A. Yes.

Q. Can you tell the jury what it was he provided for you?

A. I had a series of investigative reports and photographs on

three separate fires on the West Coast. The reports were

authored by various sections of both the FBI and ATF, as well

as Seattle Fire Department.

Q. Were there any manuals from the Earth Liberation Front

that were provided for you?

A. Yes. I also received a manual published by Earth

Liberation Front. The title of the manual is -- I forget

exactly the title, but it had to do with the manufacture of
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2342

improvised incendiary devices which could be used to burn down

large structures.

Q. Now, in the materials before we get to the Earth

Liberation Front document, in the materials, the other

materials you were provided for this case, was there ever a

mention of any bomb in any of the technical reports?

A. The word "bomb" didn't come up in any reports until well

after the primary investigation of the evidence from the

scenes, usually from ATF, and it was an explosives and

technology section of ATF who first used that word.

Q. And the materials you got, did you find that there was any

evidence of any explosion or shock wave?

A. I did not.

Q. Turning to the manual that was more or less how to set

fires, the so-called Earth Liberation Front manual, were

devices or a device described in that manual?

A. I am sorry?

Q. Was a device described in that manual?

A. There was a device described in that manual, yes.

Q. Did it describe, did the manual describe how to construct

such a device?

A. Yes, it did.

Q. Was there any mention of a delay mechanism in that device?

A. Yes --

Q. I am sorry, in that manual.
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2343

A. Yes, that manual talked quite a bit about how to

manufacture a delay.

Q. And was there a discussion of what fuel or fuels to use?

A. Yes, there was.

Q. Did it explain whether the damage is due to burning

gasoline?

A. It described the type of fuel to be used, and where to

place that fuel in order to maximize the damage to the

structure.

Q. Does the manual describe that the intent is to generate a

controlled fire to maximize the potential?

MR. BARTLETT: Objection, Your Honor. This is direct

examination and he's leading all through this.

MR. BLOOM: This being the first objection, I will

withdraw that question and ask a more appropriate question.

THE COURT: Go ahead.

BY MR. BLOOM:

Q. Was there a description in the manual of what was the

intent of using the device?

A. Yes.

Q. Could you tell the jury what that description is?

A. The intent for the device itself was to produce a fire

which was very localized and would have a sustained burn time,

such that you would be able to take out the roof and rafters

above that device. The thought being if you can get the fire
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2344

into the attic space of the building, you will effectively

total or demolish that building.

Q. And the device or devices described in the manual, could

you tell the jury your best recollection of how that device is

described in the manual?

A. The device consisted of essentially three parts: It would

be a delay portion, which involved a timer of some time and a

battery cell; and then an ignition sequence, which involved,

once the timer tripped the current from the battery flowing to

a small rocket igniter, which would ignite safety matches,

just a regular paper book of matches, which would in turn

ignite a road flare. And that sequence would be their

ignition sequence. The actual fuel then would be a container

of gasoline or gasoline/diesel mix.

So you have a timer/delay, ignition sequence, and then the

fuel load.

Q. In the manual, does it indicate one way or another whether

the device is designed to vaporize the gasoline?

A. Well, of course, the gasoline has to vaporize in order to

burn. But the way it was contained, it usually would describe

a five-gallon bucket -- the manual would describe a

five-gallon bucket as a container. It was a very controlled

evaporation, and in fact what you had then was a small pool

fire where the fire would burn for as long as it took the

gasoline to evaporate and damage the base of the container.
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2345

In fact, it was a fairly efficient way of confining your fire

to a localized area and maximizing the burn time of that two

or three gallons of gasoline.

Q. According to that manual, was the device designed to

explode?

A. It was not.

Q. What was the device -- how was the device designed? What

was it designed to do?

A. It was designed to produce a highly energetic fire over a

long period of time in one localized specific location.

Q. Now, is there a difference between the delay and ignition

components from the fuel? Are they different things?

A. I am not sure I understand your question.

Q. Okay. Are you saying that the device that you studied in

connection with this event, did it describe or did you come to

an opinion as to whether or not there were, firstly, delay

components?

A. Yes.

Q. Did you come to an opinion as to whether or not there were

ignition components?

A. Yes.

Q. Did you come to a conclusion or an opinion as to whether

or not there was or were fuel components?

A. Yes, I did.

Q. Tell us what your conclusion was or what you found or what
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2346

your opinion is with regard to the delay component?

A. Okay. We talked about this briefly. The delay or timer

component would be the clock portion of the device. You can

set the clock to where it will not allow current to flow for

up to 12 or 24 hours, depending upon the type of clock you

have.

Q. How about the ignition component, do you have an opinion

about, in general, what is an ignition component?

A. The ignition is simply the spark, if you will, that will

initiate or impart enough energy to your fuel load to start

that combustion process. In this case it's an ignition

sequence, where they use a model rocket igniter that requires

very little energy to get it to spark. Enough -- energy from

a nine-volt battery would be sufficient. That in turn has

enough energy to start the book of matches on fire, and those

in turn have enough energy to start the road flare on fire.

Now, any one of those three would give enough energy to

start the gasoline on fire. But to be sure in this case that

the gasoline would see a prolonged ignition source, they chose

to use a road flare.

Q. I think you said that the gasoline is termed the

accelerant; is that correct?

A. The gasoline in this case is the fuel or the accelerant,

yes.

Q. Now, is there any function, can you explain the
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2347

interaction between the accelerant, that is the gasoline, and

any containers that are either described in the manual or that

you came to believe were used in this particular event, let's

call it the University of Washington fire?

A. The ELF manual describes a five-gallon bucket. I believe

in the University of Washington fire it was a Tupperware

rectangular container. I saw some reference in the notes to a

33-cup container, it's a little over a two-gallon container.

So that would hold maybe a gallon to two gallons of gasoline

maximum.

Q. Now, in this particular University of Washington device,

was the fuel confined, as you understood it?

A. Yes, the fuel would be confined by that plastic container.

Q. And what would be the intent of confining it? Let me

withdraw that.

Confining within a container as opposed to somebody

spreading gasoline on the floor, those are two options; is

that correct?

A. If I had two gallons of gasoline, the two extremes would

be, one, to put it in a container that will limit its surface

area -- that limits the amount of fuel that's available to

vaporize the flames and produce flames -- versus taking that

two gallons and pouring it out on the floor, in which case now

I have a less localized fuel, much more surface area. It's

going to produce more energy much faster because I have more
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2348

fuel burning at once, but it's going to burn out quicker.

So that you have kind of two extremes of what you can do

with that same two gallons of fuel.

Q. Now, in this particular case, did you get the sense, or

did you come to an opinion, I should say, about whether or not

a container had been used?

A. I did.

Q. Was it a -- did you conclude that it was a partially

closed container?

A. I don't recall that.

Q. What would be the purpose of keeping the fuel confined to

a container -- what would be the purpose and effect of that?

A. Of keeping it confined?

Q. Yes, as opposed to -- I think you've already addressed

it -- spreading it out. What would be the intent of keeping

it confined rather than spreading the gasoline on the floor?

A. If I wanted to have the fire burn for a longer period of

time, I would want to keep it confined, or simply reduce the

surface area of the fuel that's available to evaporate.

So if I had that two gallons of fuel and I put it in a

very tall, narrow container, it's going to burn longer. In

fact, it eventually is going to go out whether there's still

fuel in it, versus, you know, a two-gallon rectangular

container versus spilling it on the floor. I get a whole

different series of combustion properties depending on how I
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2349

expose that gasoline.

Q. We've talked about gasoline as an accelerant. Would

gasoline also be called the fuel? Is that correct?

A. In this case, in fire investigation, we call that the

first igniter fuel. There are many fuels in a building, of

course, because the whole building will eventually become part

of that fuel load. So the gasoline would be the accelerant or

the first igniter fuel in this case.

Q. In other work that you've done with regard to arson

investigation, can a sofa, an ordinary house sofa, be regarded

as fuel?

A. Absolutely.

Q. Could you explain to the jury your experience and your

opinion with regard to how a sofa could be fuel?

A. We have started several fires, and there are in fact many

studies done with sofas in particular because they are a very

common piece of furniture and how readily they will ignite and

their burning characteristics.

If I put a flare in the sofa, I would produce the same

amount of energy, roughly speaking, as two or three gallons of

gasoline.

So the net heat release, the heat capacity, the amount of

energy I impart to that is roughly similar.

Q. The amount of heat -- were you finished?

A. Yes.
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2350

Q. The amount of heat produced by just, to use your example,

putting a flare on a sofa, how does that compare to a flare

igniting a bucket of gasoline, the amount of heat?

A. The total amount of energy is approximately the same. The

release rate is much quicker for the gasoline.

So you have to think of it in terms of plotting a curve of

energy versus time. If I ignite gasoline, my energy spikes

relatively quickly and then stabilizes and then falls

relatively quickly.

With the sofa, my temperature rises, my energy rises

slower, takes longer to burn before the fuel is all consumed.

The area under those two curves are approximately the same

area. That tells me about the same amount of energy is

released, but the rate at which it is released is quite

different.

Q. Now, are you saying -- first of all, will the result of

setting a sofa on fire, how would you compare that to using

the devices that you worked with in this particular case?

A. As a fuel load, I could probably burn that building down

just as well using a sofa as my first ignited fuel as the

gasoline.

Q. In order to ignite it, you mentioned a flare. How about

an ordinary cigarette?

A. That in fact is where most of the studies come from, that

several agencies have looked at over the years, because a lot
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2351

of people do smoke. It's been found that you can bring your

average living room to a condition known as flashover, where

everything in the room lights on fire spontaneously in about

five to ten minutes once a sofa starts on fire from a

smoldering cigarette. Based on those studies, there's a lot

of federal regulations about flame-retardant fabrics on

upholstery these days to help -- to prevent that from

happening. But many studies have been done that shows you can

essentially bring a house down very quickly with nothing more

than a cigarette and sofa.

Q. If a person were to use a cigarette, put it in the sofa

and then leave, would that indicate to you an intent to cause

an explosion?

A. No.

Q. Now, is there a difference -- did you find that there's a

difference between the device that was used in this case, at

the University of Washington, and what's called a Molotov

cocktail?

A. Yes.

Q. Could you tell the jury, what is a Molotov cocktail?

A. Well, a Molotov cocktail is a breakable container, usually

a glass jar or bottle that contains gasoline, and in the neck

of the bottle you stuff a rag, shake it up a little bit so the

rag becomes saturated with that gasoline. You can then simply

light the rag, which is now your wick, throw the bottle, and
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2352

when the bottle breaks, you spread that gasoline over a wide

area and you'll get a flash fire, and the fire from the wick

will spread across the surface area of your spilled gasoline

and start that whole area on fire.

It's a device intended to be thrown, as opposed to just

setting -- it won't in fact work if you just set it without

breaking the bottle. You have to throw it so the bottle

breaks.

Q. In your work for the government and in a private lab,

where you now work, have you become familiar with the federal

statutes relating to explosives, fire, weapons, bombs, things

of that nature?

A. Only on an as-need basis.

Q. I am sorry?

A. Only on an as-need basis. If somebody asks me a question,

I will study that part of the law.

Q. Are you familiar with the parts of the federal code that

deal with the term "destructive device"?

A. I am.

Q. Do you understand that there are, within that, there's a

definition of explosive, incendiary, or poison gas? Do you

understand that?

A. I understand that.

Q. Am I correct that what's listed in that statute is a bomb,

a grenade, a rocket having a propellant charge of more than
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2353

four ounces, a missile having an explosive or incendiary

charge of more than one-quarter ounce, a mine, and then the

catchall, incendiary device? Are you familiar with that?

A. Yes, I am.

MR. BARTLETT: Objection, Your Honor. It misstates

what is in the code, and it misstates it in a very important

way. I don't have --

MR. BLOOM: Excuse me.

THE COURT: Just a minute. Is this an objection?

MR. BARTLETT: It is an objection.

THE COURT: As to?

MR. BARTLETT: It misstates exactly what he was

trying to read. That isn't what's in the statute.

THE COURT: Let's do this. It's close to the break

time. I am going to give you your break now, and I will take

this matter up.

(Jury not present.)

THE COURT: All right, you may be seated.

Let me get the full thrust of your objection.

MR. BARTLETT: Your Honor, what he just asked is

simply, it is erroneous with regard to what the statute says.

What the statute says, is it sets forth three different

categories. As plain as you can see, there is an explosive

bomb, an explosive grenade, an explosive rocket, and explosive

missile, an explosive mine, or an explosive device similar.
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2354

There's also an incendiary bomb, an incendiary grenade, an

incendiary rocket, an incendiary mine, or incendiary device

similar to any of the devices described in the preceding

clauses. And there's also a poison gas.

So he's trying to imply that there's actually six

different categories. There weren't. There are 18 different

categories with regard to this statute.

That's always been a problem with Mr. Mann's testimony.

He doesn't understand that. He's not an expert on this law,

and that's why his opinion is erroneous, because he doesn't

understand that there's a difference under federal statute

with regard to an explosive bomb, an incendiary bomb, and a

poison gas bomb.

What he just stated was, under the destructive device

there's only a bomb, grenade, rocket, missile, mine, or

incendiary device, and that's wrong, because that's six

categories. There's actually 18 categories.

THE COURT: All right.

MR. BARTLETT: And that's what the Court's ruling

was, I could point out.

THE COURT: Let me hear what you are getting at.

Then I want to know just how Mr. Mann understands it, as he

read the whole thing and having that in front of him. You are

trying to get his opinion.

MR. BLOOM: As Mr. Bartlett so eloquently explained,
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2355

that's about cross-examination. If he's wrong, he can

cross-examine him.

In fact, Judge, we are going to abide by the court's

direction at all times. We will do that. There will not be

any testimony that the Court has forbidden. If Mr. Mann is

incorrect about what he regards as the definition,

Mr. Bartlett is a great cross-examiner, he always brings out

really important stuff, and he will be able to do that with

this witness.

MR. BARTLETT: Your Honor, an expert witness cannot

testify with regard to a basis that is in fact erroneous.

What he is saying is -- first of all, what he said out of the

blocks was, I really don't know this statute, I just kind of

looked at it for this case.

Second of all, he's going to give an opinion that in fact

isn't what the statute says and it isn't allowed. Under 403

it is irrelevant and confusing testimony for the jury.

The Court should not allow a subterfuge to allow them to

get what clearly is not the law in front of them so I have to

clarify that on cross-examination.

THE COURT: That's my ruling. You've raised the

question whether he fully understands this. He says he knows

somewhat about it. So the question is this statute.

I guess you've read it?

THE WITNESS: I did.
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2356

THE COURT: Okay.

MR. BARTLETT: But the question did not set forth

this statute. What he says was that there were six categories

with regard to the statute.

And just as a question, that is erroneous. There are 18

different categories. If he wants to go through the 18

different categories and how this witness understand its,

first of all, it is irrelevant to the jury's consideration,

and he's not an expert on the statute.

THE COURT: I understand that.

Mr. Bloom, I am going to require you to set forth the full

statute to him, and then we'll get the question and answer.

MR. BLOOM: Of course.

THE COURT: Then you can cross-examine on that issue.

Let's take the morning recess.

THE CLERK: All rise, court is in recess.

(Morning recess.)

(Jury not present.)

THE COURT: You may be seated.

MR. BLOOM: If I may, I will clarify the question for

the witness where there was an objection. I also have a

request.

The Court's ruling, I assume, also precludes the

prosecutor from asking questions, whether or not an incendiary

bomb, whether it must explode. The question that the Court
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2357

has forbidden us from asking, I assume the government is also

forbidden?

MR. BARTLETT: I am not asking this witness that.

THE COURT: But I don't think that's what my ruling

was. All you have to remember is my ruling, and that's it.

MR. BLOOM: Let me just make sure in the record,

here's what your ruling says: The defendant's proposed expert

(Mann) is precluded from testifying that to be an incendiary

bomb under the statute it must explode.

That's what I am precluded from asking, right?

THE COURT: You read it.

MR. BLOOM: Okay.

THE COURT: I believe you said Mr. Mann had read it.

Everybody is aware of what my ruling is. I have said to you,

don't violate it. Okay.

So we are ready?

MR. BLOOM: I am ready.

THE COURT: Bring them in.

(Jury present.)

THE COURT: You may be seated.

Mr. Bloom.

BY MR. BLOOM:

Q. Mr. Mann, where we left off, I was talking about the

statute, which actually is 18 United States Code 921(a)(4).

Now, as you understand the statute, it defines destructive
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2358

device; is that correct?

A. That's correct.

Q. Does it define it, as you understand it, as an explosive,

incendiary, or poison gas; and then it's subdivided, bomb,

grenade, rocket having a propellant charge of more than four

ounces, missile having an explosive or incendiary charge of

more than a quarter ounce, mine, or similar device; is that

what you understand the statute to say?

A. Yes.

Q. In your opinion as an expert, to each of those, all of

those options, 18 options, six times three, do they all have

one thing in common?

A. I believe so.

Q. What is that?

A. That they all will explode.

Q. The device you studied in this case, is it a device that

was intended to explode?

A. It was not.

Q. How were the devices identified in the particular fire --

I am sorry, let me withdraw that.

Some of the materials you looked at were from ATF -- ATF

meaning Alcohol, Tobacco and Firearms, which is now amended to

Alcohol, Tobacco, Firearms, and Explosives, right, a

government agency.

A. It is still BATF, Bureau of Alcohol, Tobacco and Firearms.
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2359

Q. Did you read any of the documents wherein the people who

worked for that agency described the device that was used at

the University of Washington?

A. Yes, I did.

Q. How did they describe -- let me withdraw that.

Did they describe the device that was used at the

University of Washington arson, did they describe it as

incendiary bombs?

A. They did not.

Q. Could you give what you think of as the most accurate

description of the device that you studied that was used at

the University of Washington?

A. If I were to describe that in a report in my own words, I

would describe that as an incendiary field (gasoline) ignited

with a time delay device.

Q. Is it fair to say, if you can answer just yes or no, that

you have formed an opinion about the device that was used in

this case?

A. I have.

Q. Is it your opinion that the device that was used in this

case is a destructive device?

A. In terms of the fact that it is a homemade device and it

will cause destruction, it is a destructive device.

Q. Now, does that mean to you --

MR. BARTLETT: Objection, Your Honor. These are just
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2360

leading questions. This is direct examination.

BY MR. BLOOM:

Q. Could you, as a scientist, tell us, by that definition, is

a match a destructive device?

A. I would consider a match an ignition device. It may

ignite a destructive device.

Q. If you put a cigarette in a sofa, is that a destructive

device on that definition?

A. If I were to intentionally place a cigarette in a sofa

with the intent to burn down a house and it did so, I would

consider that a destructive device.

Q. Again, just yes or no, please. Do you have an opinion, as

a scientist, with your experience, studying this device,

studying the literature, studying the materials -- just yes or

no -- do you have an opinion about whether or not the device

that was used in this case at the University of Washington was

an incendiary bomb? Just yes or no, do you have an opinion?

A. Yes.

Q. If called upon, could you give that opinion to the

Court -- I mean to the jury?

A. No.

Q. Well, if you were allowed, could you give that opinion to

the jury? Would you be able to express it?

A. I am unable to.

Q. If you were able to?
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2361

MR. BARTLETT: Objection, Your Honor.

THE COURT: He can answer.

BY MR. BLOOM:

Q. The reason you are not able to --

MR. BARTLETT: Objection, Your Honor.

THE COURT: Sustained. Move on.

BY MR. BLOOM:

Q. Who is Thomas Keller?

A. He's -- Mr. Keller is a rather high profile arsonist who

set many fires about a decade ago in Seattle.

Q. And what was his mechanism?

A. His favorite mechanism for starting fires was a Bic

lighter and any available combustible he found at the site.

MR. BARTLETT: Objection. This goes beyond what was

provided as to this expert's opinion and testimony.

THE COURT: Any more questions along this line?

MR. BLOOM: No.

BY MR. BLOOM:

Q. The device you studied with regard to the University of

Washington fire, in your opinion is there a difference between

that device and a Molotov cocktail?

A. Yes.

Q. Could you explain to the jury what that is, what the

differences are?

A. A Molotov cocktail is designed to rapidly spread the fire
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2362

by spreading the fuel when the container breaks on impact.

The device in question here is designed to be very localized

and generate a prolonged combustion time.

Q. I do want to ask you another subject. You are familiar

with work, you said, involving the integrity -- let me

withdraw that. Damage to sheet metal.

MR. BARTLETT: Objection, Your Honor, there was no --

this expert's testimony was not given with regard to this

issue. The government objects.

THE COURT: Was there a report or anything given on

this?

MR. BLOOM: No, apparently not.

THE COURT: All right.

MR. BLOOM: All right. Then I have no further

questions. They may have some questions for you, Mr. Mann.

Thank you.

MR. BARTLETT: I have no questions, Your Honor.

THE COURT: All right. He can be excused?

MR. BARTLETT: Yes.

MR. BLOOM: Yes.

THE WITNESS: Thank you, Your Honor.

MR. BLOOM: Yes, I would like to call Briana Waters.

THE COURT: Ms. Waters, I will have you come forward

and be sworn also.

BRIANA WATERS, called to testify, duly sworn.
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2363

THE COURT: Come forward and take the witness chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Could you state your name for the record, please; spell it

for the jury?

A. Briana, B-R-I-A-N-A, Waters, W-A-T-E-R-S.

Q. How old are you?

A. Thirty-two.

Q. Are you married?

A. No.

Q. Do you have a partner?

A. Yes.

Q. Is he here in court?

A. He is.

Q. What is his name?

A. His name is John Landgraf.

Q. How long have you been with John?

A. Four-and-a-half years.

Q. Where do you live?

A. I live at Oakland, California.

Q. Do you and John have a daughter?

A. We do.

Q. What is her name?

A. Her name is Calliope.

Q. Where were you born?
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2364

A. I was born outside of Philadelphia, Pennsylvania.

Q. What's the name of the town?

A. It's a town called Lansdale. It's a small town.

Q. With whom did you grow up in your family?

A. I grew up with my mom and dad and my younger brother.

Q. Could you use the microphone?

A. Yes, sorry.

Q. What is your younger brother's name?

A. His name is Eric.

Q. Do you have another brother?

A. Yes. I have an older half brother who I didn't actually

meet until later.

Q. His name?

A. His name is Phillip.

Q. Are your mother and father together?

A. No, they are divorced.

Q. Is either one of them here in court today?

A. My mom is here.

Q. Is her name Marilyn?

A. Yes.

Q. Where did you go to high school?

A. The high school is called North Penn.

Q. I am sorry?

A. North Penn High School in Lansdale.

Q. Did you finish high school?
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2365

A. Yes.

Q. After you finished high school -- did there come a time

while you were in high school that you got involved in music

in some way, or was it before then?

A. I started to play the violin when I was like five or six.

Q. And do you play the violin now?

A. I do.

Q. After you finished high school, what did you do?

A. I went to college at the University of Dayton, in Ohio,

and I studied photography.

Q. How long did you stay there?

A. I was there for two years.

Q. After that, what did you do?

A. Well, I took a little bit of time off, because the college

that I was going to was really expensive and I didn't want to

graduate with hundreds of thousands of dollars in loans, so I

decided I was going to look for a school that I liked but was

also more affordable. So I took a trip all over the country

and came to the West Coast and looked at some schools here on

the West Coast.

Q. Did there come a time when you found yourself in Olympia,

Washington?

A. Yes.

Q. Did you find any schools there that interested you?

A. Yes. I found the Evergreen State College.
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2366

Q. Did you make arrangements to transfer to Evergreen?

A. Yes, I did that.

Q. Do you remember what year that was?

A. I came in the winter quarter of 1997.

Q. Did you have in mind any particular studies?

A. Yes. I was still interested in pursuing photography and

also video media studies, video images.

Q. Have you ever testified before today?

A. No, I haven't.

Q. Are you nervous?

A. A little bit.

Q. Did you say the end of 1997 is when you began at

Evergreen?

A. I think so, yeah.

Q. Did you make any friends at Evergreen?

A. Yes.

Q. Did you get involved with activities at the school?

A. Yes.

Q. What kinds of activities?

A. Well, I was involved with a couple different student

groups, the Evergreen Animal Rights Network and the

Environmental Resource Center on campus. I was also involved

with music there as well.

Q. I take it from the two groups that you associated with

that you had some interest in the environment?
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2367

A. Yes, I did.

Q. What was and is your interest in the environment?

A. Just what I would hope everyone's interest would be, which

is taking care of it so we can all be healthy and live on the

planet in a healthy and sustainable way.

Q. Did there come a time when you met a fellow named Justin

Solondz?

A. Yes.

Q. Do you remember what year that was?

A. I believe it was in the beginning of 1999.

Q. And before that, did you have a boyfriend? While you were

at Evergreen.

A. Yes, I did.

Q. Did there come a time when that relationship ended?

A. Yes.

Q. When you met Justin, did you begin a romantic relationship

with him?

A. A few months after I met him.

Q. Was he a student at Evergreen?

A. He was.

Q. About how many students all together, your guess, in the

hundreds, thousands, at Evergreen?

A. I think a couple thousand maybe.

Q. Now, did there come a time when you were at Evergreen --

you've seen the two witnesses testify here in this court with
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2368

regard to your work on the video "Watch."

A. Yes.

Q. Ms. Meeker and Ms. Lin; is that correct?

A. They were my faculty when I was starting the project.

Q. Tell us about how you got involved in that project?

A. I believe it was the spring of 1999, the Environmental

Resource Center, the people that were working in that group

were also the same people that were involved in starting that

campaign at Watch Mountain. I just heard about it through

them, and I went to meetings and started to get interested in

becoming a part of it.

It started out, there wasn't any tree sit or anything when

it first started. It started talking to the people in the

town and doing the research, because there was a long history

of land exchanges. So I learned all I could about it and

started the documentary project on it.

Q. Were those two things separate things, first you got

involved in the events and then you decided to make a video,

documentary or -- let me withdraw that.

At the beginning, was it your intent to make a

documentary?

A. I don't know. My focus in school was media studies, so I

don't know if I could separate the two. It's who I am. I

document things, you know. I take thousands of pictures of my

daughter all the time. It's just who I am. So whatever I was
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2369

involved with, I think, I was also involved with documenting

those things because that was my focus and that's my

personality to do that.

Q. Did you discuss with your faculty people, Ms. Meeker and

Ms. Lin, that you wanted to turn the Watch Mountain campaign

into a use it and document it?

A. Yes.

Q. And did you get, essentially, permission to do that,

approval to do that?

A. Yes, I did.

Q. Can you tell the jury about when that was?

A. It was in the summer of 1999.

Q. How did you go about getting involved in that as a

documentarian?

A. Just started slowly just talking to people, interviewing

people. Just being at anything, being at any events I could.

There were many groups involved, actually, in this campaign.

It was not just our group in Olympia. There was also the

Gifford Pinchot Task Force and the Pacific Crest project and

the Western Land Exchange Project.

There were a lot of people who had been working on this

for a while. So I started talking to people and interviewing

them and talking with people in Randle and getting to know

them.

Q. Plum Creek, could you tell the jury about Plum Creek?
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2370

A. Plum Creek is a timber company who I think we heard about

from Jim Dawson. He was talking about how -- or maybe Lavern

Troxel was actually talking about their policies are basically

to clear-cut, they don't really have sustainable logging

practices, and that's what they wanted to do with Watch

Mountain.

I actually remember clearly going on a hike with an

employee from Plum Creek, and unfortunately, my videocamera,

it was really foggy and wet and it stopped working, so I

didn't get this on film, but I actually was there wanting to

film him saying this mountain here is designed to be

clear-cut. That's what he said.

Q. And was that troubling to you?

A. It was, yes.

Q. Can you estimate how many hours of footage that you

produced in documenting this campaign?

A. Seems like thousands, but it was probably maybe 50 to 75

hours. It was a lot. Maybe even more. Maybe even 100. It

took me a long time to finish the project, much longer than I

had planned. All of that time was mostly spent going through

the footage and logging it and deciding which clips to use,

because I took a lot of footage.

Q. Did there come a time when you finished college?

A. Yes. I graduated in the winter, December of 1999.

Q. Did the work on the project continue or stop?
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2371

A. It continued.

Q. The documentation?

A. Yes.

Q. Did you continue working -- I think Ms. Lin testified that

you continued working with her even after you graduated; is

that correct?

A. Yes, I kept in touch with her.

Q. You've heard testimony here from Lacey Phillabaum, from

Jennifer Kolar, that you were involved in the arson that they

committed at the University of Washington in May of 2001.

Have you heard that testimony?

A. Yes, I have.

Q. Were you in any way involved in that arson?

A. Absolutely not.

Q. Did there come a time, almost exactly two years ago, when

you saw Agent Halla?

A. Yes, it was almost exactly two years ago.

Q. And what date, do you remember the date?

A. It was February 24th, 2006.

Q. And is that a date that you remember and will remember for

a long time?

A. Yes. Probably.

Q. Where did you meet Agent Halla?

A. At my home where I was living, in Berkeley, at the time.

Q. What street was that?
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2372

A. Summer Street.

Q. And was Mr. Halla alone? Agent Halla, excuse me, was he

alone?

A. No. He was with another agent, but I forget who that was.

Q. It wasn't Agent Torres; is that correct?

A. I don't think so.

Q. Was Agent Halla polite to you?

A. Yes.

Q. Did he yell at you?

A. No.

Q. Did he give you some information?

A. Yes, he did.

Q. Did he indicate to you that -- well, tell us what he

indicated to you?

A. He indicated that he thought that I was involved in the

arson at the University of Washington, and he gave -- he asked

me some questions. He asked me some questions about if I knew

where Justin was. I can't remember what else right now.

Q. Did he give you the name Andrew Friedman?

A. Yes, he advised me to speak with Andrew Friedman about

getting a lawyer, I think, because I told him that I

wouldn't -- I would have to get a public defender. So he gave

me Andrew Friedman's number.

Q. And did he give you any other names and numbers of public

defenders or anything like that?
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2373

A. No. He said Andrew Friedman was the one that could

connect me with a public defender.

Q. Did there come a time that day that you called

Mr. Friedman?

A. Yes, I did.

Q. Did he gave you a name and a phone number?

A. Yes.

Q. Of the federal defender?

A. Yes.

Q. Do you remember the name?

A. It was Peter Avenia.

Q. Just for the record, is that A-V-E-N-I-A, if you know?

A. Yes, I think so.

Q. Do you remember if you called him on that day?

A. I did.

Q. Just yes or no, did you have a conversation with him?

A. Yes.

Q. Did there come a time when you learned more details about

what it was they wanted to talk to you about? When I say

they, the FBI wanted to talk to you about?

A. Yes.

Q. Did you eventually learn an approximate date, May 20, May

21, 2001?

A. Yes.

Q. Once you heard that date, or at any point, is it correct
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to say that that was about four-and-a-half years after the

incident?

A. Yes.

Q. Did you put your mind to thinking back what you were doing

and where you had been?

A. Yes.

Q. On the date of the alleged crime?

A. Yes, I did.

Q. Did you have any kind of diary?

A. No. Unlike some of the people who have testified here, I

have moved many times and I haven't kept any calendars or

diaries from that time at all.

Q. And you did not commit the crime; is that correct?

A. That's correct.

Q. To you, did you try to think of reference points to help

you remember where you might have been on May 20 and 21st?

A. Yes, I thought about it, yes.

Q. And what reference point or points did you come up with to

help you remember?

A. I didn't come up with any. I knew that I had finished the

video right around that time. That was a very major event in

my life, completing that project.

I knew that I had shown it at Evergreen in April 2001, but

that was the only major event around the time that I can think

of.
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2375

Q. So is it fair to say, unlike Jennifer Kolar and Lacey

Phillabaum who knew exactly where they were on May 20 and 21,

you didn't have that to which you could refer?

MR. BARTLETT: Objection. This is argumentative and

this is direct examination.

THE COURT: Just ask her the question. She said

that's the only thing she can call on, I think.

BY MR. BLOOM:

Q. Were you able to think back, well, May 20 and 21, that's

the day I committed the crime, so I can -- that's how I can

refer it?

MR. BARTLETT: Objection, Your Honor. This is direct

examination.

THE COURT: Let her speak.

BY MR. BLOOM:

Q. Did you have that advantage, that you had committed the

crime and therefore you could use that as a reference point?

A. No, I did not.

Q. I think you said that there was a screening of your video

in April of 2001, am I correct?

A. Yes, that's correct.

Q. At what location was that?

A. It was at the Evergreen State College.

Q. Were there other screenings of your video that followed

that?
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2376

A. Yes.

Q. And do you have any specific recollection of any of them?

A. Yes, it was also shown at the Capitol Theater in downtown

Olympia, and it was shown in Seattle, I think, a couple times.

I know that it was shown all over the country from different

groups, you know, that sent me requests for the video, because

they wanted to show it at their conference or their event, at

their college. And I also showed it in San Francisco.

Q. Do you remember any dates or any years or any months when

it was shown?

A. Yes. The San Francisco showing was in October, the

beginning of October of 2001, and the Capitol showing in

Olympia was the end of May 2001. And then I showed in Seattle

at the Media Arts Center there, I believe, over the summer of

2001.

Q. Now, there's been discussion of a number of arsons in this

courtroom during this trial. Did you commit any arson, ever,

in your entire life, anywhere, any time, any city, any date,

with any person?

A. No, I did not. I never have.

Q. Did you conspire with anybody, any person, anywhere, any

time, anywhere in the world, any date, with anybody to commit

any arsons?

A. No.

Q. Do you think now, have you ever thought, it's okay to burn
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2377

down buildings?

A. No, I don't think it's okay at all. And I never thought

it was.

Q. Now, the prosecution has offered in evidence and has

testimony from Tiffany Tudder that ten years ago a person was

invited to campus and he spoke on campus. Do you remember

that testimony?

A. Yes, I do.

Q. Were you involved in -- I think you said one of the

organizations you were involved in was EARN. Is that

Evergreen Animal Rights Network?

A. That's correct.

Q. Can you describe that organization to the jury, please?

A. Yes. It was a campus organization whose -- I don't have

the vision statement to read, but when I was there, we mostly

promoted vegetarianism and veganism, and we held vegan

potlucks, and we brought people, different speakers to talk

about factory farming and the effects of that on animals and

on people and the planet. We had bake sales to raise money.

We had a lot of materials to educate people about animal

rights in general.

Q. Was this an underground, clandestine, sinister

organization?

A. No, it was quite the opposite.

Q. Did the organization at some point invite a person named
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Craig Rosebraugh to speak at Evergreen?

A. Yes.

Q. Do you remember being part of the discussion as to

inviting him?

A. I remember that we wanted to bring him to talk about

dissection and vivisection because there was a pretty big

debate going on on campus. There were some students that did

not want to dissect, and it was mandatory for their course to

do so, and they would basically fail if they didn't dissect.

So we were working on those issues, trying to facilitate

communication with the students and faculty and the

administration.

So that was a hot topic right at that point, and I

remember wanting to invite him to talk about that because he

was someone that knew about it.

Q. He was thought of as a controversial figure?

A. Yes, I think he was.

Q. Did that have anything to do with him being the official

or unofficial spokesperson of the Earth Liberation Front?

A. Yes, I think it did. I don't really remember us talking

about wanting to bring him here because of that, because we

were really focussed on animal rights, the dissection and

vivisection issues.

Q. Was there a day he actually did come to speak?

A. Yes.
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Q. And what were you doing when he spoke and as he spoke, you

personally?

A. Well, I remember just being in the library and being in

charge of the table materials, setting up those, and the bake

sale and, you know, kind of giving people information and

talking to people. I don't remember actually being able to

attend very much of his lecture because I was kind of manning

the table in the front of the library building.

Q. Did there come a time after he spoke that you remember

being in a cluster of people where a person who said he was

with the newspaper spoke to you?

A. I have a vague recollection of that.

Q. Are we talking about, apparently talking about ten years

ago?

A. Yes, ten years ago.

Q. And you heard Tiffany Tudder testify to her recollection?

A. Uh-huh, yes.

Q. Do you remember the reporter, do you remember the

reporter's name?

A. No.

Q. Do you remember the reporter asking questions of the group

of people that was in front of him?

A. Yes.

Q. You've heard testimony, you've seen printed out to the

effect that you believe in arson or you support arson and mink
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release, a question something like that?

A. Yes, I think so.

Q. Do you remember what the actual question was?

A. No, I don't.

Q. You've seen in print what supposedly your answer was?

A. Yes.

Q. And the answer is yes, more or less, if nobody gets hurt,

more or less, is that right?

A. That's what the answer in print was.

Q. Do you remember the question or questions and the answer

or answers?

A. I don't. I remember that there were a lot of people

around. And it was -- I was having a busy day, but I don't

remember exactly what he was asking.

Q. Do you deny that those words are accurate?

A. No, I am not denying it. I'm just saying I don't

remember.

Q. As you stood there then, did you believe that arson was a

good idea, that you supported arson?

A. No.

Q. Do you believe it now?

A. No, I don't.

Q. Have you ever believed it?

A. No.

Q. Did there come a time when you met a woman named Lacey
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2381

Phillabaum?

A. Yes.

Q. And we've heard Sarah Wald testify yesterday with regard

to an event that happened in the Portland area in 2001.

A. That's correct.

Q. Do you remember -- let me withdraw that for the moment.

Do you remember where you first met Lacey Phillabaum?

A. Yes, I believe it was at that event in Portland.

Q. What makes you recall it was at that event?

A. Because it's just the first time I remember actually being

introduced, and it was a two-day event so I spent some time

with her there. It's possible I may have seen her somewhere

else, but that's the first time I actually met her and spent

time with her.

Q. About how many people would you say were at that meeting?

A. My memory is 20, 25 people.

Q. What was the meeting about?

A. It was about just strategies, or kind of like a spokes

council, I guess, where different people from different

organizations came and we all discussed kind of, you know,

what's going on now and, you know, where we can go from here.

Q. Was it in the Portland area?

A. Yes.

Q. And what kind of setting was it? Was it a motel, was it a

house, was it something else?
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2382

A. I remember it was a barn.

Q. Can you tell the jury, how many days? Was it one day or

more than one day?

A. It was two days.

Q. Was it a weekend or weekday?

A. Yes, it was a weekend.

Q. Did Lacey Phillabaum have a particular role in that

meeting, if you remember?

A. Yes, she was one of the facilitators of meeting.

Q. What does that mean, a facilitator?

A. It just means a person who is making sure that things are

running smoothly and kind of calling on people when they want

to speak and things like that.

Q. Do you remember, first of all, was there ever what you

call a breakout session, where you divided into smaller

groups?

A. Yes.

Q. Do you remember, did you participate in that, were you in

one of those groups?

A. Yes, I was.

Q. Do you remember whether Lacey Phillabaum was in that group

or another group?

A. I believe she was in the same group as me.

Q. About how many people of the 20 or 25 were in that group?

A. I think maybe ten or twelve.
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2383

Q. Okay. Did you have interaction with her?

A. Yes.

Q. Did you have interaction with her that entire weekend?

A. Yes, I did.

Q. Any question in your mind about that?

A. No.

Q. Was Justin Solondz your boyfriend at the time?

A. Yes.

Q. Was he at that meeting?

A. Yes, I believe he was.

Q. Did you observe anything that took place between Lacey

Phillabaum and Justin Solondz?

A. Yes.

Q. You are smiling. Could you tell the jury what you are

thinking, what is your recollection of what you saw?

A. I remember them flirting.

Q. Had that been a problem with you and Justin in the past?

A. Yes.

Q. Did it continue to be a problem?

A. It did.

Q. Did there come a time that evening, I assume Saturday day,

Saturday evening, Sunday day; is that correct?

A. Yes, I think so.

Q. That Saturday evening, was there an event?

A. An event -- I think just people hanging out.
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2384

Q. Did you have your fiddle with you?

A. Yes.

Q. Did you play it?

A. Yes, I played it.

Q. Were there other musicians as well?

A. Yeah, I think there were a couple other musicians, but I

was just, you know, playing the Irish tunes.

Q. Now, is there something that's known as ELAW?

A. Yes, that's the environmental law conference.

Q. Is that something that's publicly sponsored?

A. Yes.

Q. Is it an annual event or is it haphazard? How does that

work?

A. Yes, it's every year. I don't know when it started. It's

been going on for a while, I think.

Q. Is it always held in the same place?

A. Yes.

Q. Where would that be?

A. In Eugene, Oregon.

Q. Did you attend the one that took place in the year 2001?

A. I did.

Q. Do you remember what month that had been?

A. I believe in the beginning of March.

Q. So perhaps a month after the first time you met Lacey

Phillabaum?
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2385

A. Yes.

Q. About how many people would you say were at the ELAW

event, ELAW conference in March of 2001?

A. A couple hundred.

Q. Do you remember seeing Lacey Phillabaum there?

A. Yes, I do.

Q. Lacey Phillabaum has testified here that she first met you

on May 12 or 13 of 2001 at a Denny's restaurant in Olympia,

Washington. Did you hear that testimony?

A. Yes, I did.

Q. First of all, did you meet her at all at a Denny's

restaurant in the year 2001 or any other time?

A. No.

Q. And as to whether or not her claim that that's the first

time she met you, could that be true?

A. No. I definitely did not. I met her at that meeting.

That's where I remember meeting her.

Q. She's also testified about a meeting at Evergreen College.

Did you hear that testimony?

A. Yes.

Q. And she testified about a soundproof room. Do you

remember any such meeting with her?

A. No, I don't.

Q. Are there soundproof rooms at Evergreen College?

A. Not that I remember. I never was in one.
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Q. When did you graduate?

A. In the winter of 1999.

Q. So by 2001, you were no longer a student there; is that

correct?

A. That's correct.

Q. And you heard testimony from Laurie Meeker yesterday?

MR. BARTLETT: Objection, Your Honor, leading. This

is direct examination. It goes to argument.

THE COURT: Question.

MR. BLOOM: The question was interrupted. May I ask

the question?

Thank you.

BY MR. BLOOM:

Q. You heard Laurie Meeker testifying that in order to get --

let me withdraw that.

Do you know one way or another, in order to get a room

reserved, could you do it if you were not a student?

A. No, you had to be a student and have valid student ID.

Q. Did you arrange -- you heard testimony that you supposedly

arranged for a room.

A. Yes.

Q. Is that true?

A. No, it's not.

Q. If you had arranged for a room, you understand that there

would be a public record if you arranged for a room?
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A. Yeah, there probably would be a record from Evergreen, you

know, that I checked out some room or something.

Q. It's a State University?

A. Yes.

Q. Now, did there come a time when Justin Solondz, your

boyfriend, told you something about himself and Lacey? In

2001.

A. Yes, he admitted to me that they had an affair.

Q. Do you remember approximately when that was?

A. I don't remember exactly. I know that it was after the

video was finished.

Q. When was the video finished?

A. At the end of April 2001.

Q. Do you remember what it was he said to you? And don't, if

you don't want to be explicit, you don't have to be. In

general, what did he say to you?

A. He told me that they had sexual relations.

Q. How did you feel when you heard that?

A. I was very angry.

Q. With whom were you angry?

A. At both of them.

Q. Did it affect your relationship with Justin?

A. Yes, it did.

Q. In what way did it affect your relationship?

A. We actually broke up for a little wile because of it. I
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2388

just told him that I just didn't want to be around him for a

while.

Q. Did there come a time after that, after he gave you that

information, and you saw Lacey Phillabaum again.

A. Yes. I saw her --

Q. Let me go back because I left out an important piece here.

After you finished the video, or at the time you were

working on the video, where were you living? In 2001.

A. Well, I was living at the house on Percival Street.

Q. Is that in Olympia?

A. Yes.

Q. Did there come a time when you moved out of that house?

A. Yes, I did.

Q. Did you know a person named Ocean?

A. Yes.

Q. Do you know a person named Ocean?

A. Yes.

Q. Is that actually his name, that he actually changed it to,

his official name?

A. Yes.

Q. What was your relationship with Ocean?

A. He was my friend. He is my friend.

Q. Did there come a time when some traumatic event occurred

with Ocean?

A. Yes, he was in a car accident.
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Q. Was that in 2000 sometime?

A. Yes.

Q. Did there come a time when he bought a house in Olympia?

A. Yes, he used the money that he got from the insurance

settlement --

Q. Could you say it a little louder?

A. He used the money he got from the insurance settlement to

buy the house.

Q. What street was that on?

A. On Conger Avenue.

Q. Is that the house about which there's been so much

testimony?

A. It is.

Q. Did there come a time when you moved into that complex?

A. Yes.

Q. What part -- is it true that there's a main house and a

rear structure?

A. Yes.

Q. And where did you live?

A. I lived in the back structure.

Q. Would you describe it to the jury?

First of all, how many rooms was it?

A. Just one big room, a garage.

Q. How did you furnish it?

A. I had a bed and a couch and some, you know, bookshelves
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with my things on it.

Q. Was there running water in the garage area?

A. No.

Q. What did you do for water?

A. In the main house, if you walked through the backyard and

then went into the back door, there was a bathroom right

there, and I used the bathroom for water and showers and

stuff.

Q. At the time you lived in the garage area, was something

happening with regard to the front house?

A. It was under construction at that time.

Q. What do you mean by under construction?

A. Well, they had to do a lot of construction to make the

house accessible for Ocean, so they were doing tons of stuff,

making a wheelchair ramp and widening doorways. Making --

they were making a whole new bathroom for him. Big shower, so

that a wheelchair could go into it. Lowering the counters in

the kitchen as well, or taking out -- I think they took out a

whole entire counter because a wheelchair couldn't go around.

They were just doing a lot of things.

Q. When you say they, about how many people were doing this

work?

A. I think there were a lot of people, over the period of

time that I was there, that were working on it. I don't know,

maybe six or seven different people.
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Q. Over the period of time, what period of time would that

have been?

A. Well, I think I moved there the very end of April of 2001.

And then I was there through, I believe, the fall of 2001,

sometime, September or October.

Q. Did there come a time when Ocean moved into that main

house?

A. Yes, he did. Over the summer, I think it was July.

Q. Of 2001?

A. Yes.

Q. Did you ever live in the main house?

A. No, I never lived there. It was under construction, so

you couldn't really live in it at that time.

Q. What was the purpose of your living there at all?

A. Well, they wanted someone to be on the property and help

water the garden and just be there. There weren't --

inhabited space, and so they just wanted somebody to be

around.

I'd also had a conversation with either Heather or Ocean

about wanting to leave the house I was in because there was a

lot of people there and it was just getting to be too much for

me.

Q. It was good for Ocean and good for you?

A. Good for everybody, yeah.

Q. Did Heather also visit?
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A. Yes, she was there all the time.

Q. The people who were doing the construction and Heather,

did they announce when they were going to be there?

A. No, they were just doing their thing.

Q. So if somebody were doing something clandestine or

criminal, somebody might walk in on them?

A. Yeah. Yes.

Q. Now, did there come a time -- I think this is where I left

off -- that you saw Lacey Phillabaum again after the ELAW

conference?

A. Yes.

Q. Was there anything in between -- when was that,

approximately? What time of year was it that you next saw

her?

A. It was the summertime.

Q. Where was that?

A. It was at Ocean's house. There was a party there.

Q. I am sorry?

A. There was a party at Ocean's house.

Q. Did you see her any time in between the ELAW conference in

March and the party in the summertime at Ocean's house?

A. No, I don't think so.

Q. By the time you saw her at the party, you had been given

information by Justin about his having had an affair with her;

is that correct?
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A. That's correct.

Q. So this summertime at the party was the first time that

you had the opportunity to speak with her; is that correct?

A. Yes.

Q. You could have called her, I suppose, right?

A. Well, she wasn't someone that I could talk to. I didn't

have her phone number or anything. I probably could have

gotten her number from somebody, but I didn't.

Q. Did something happen -- the party, was it a daytime party

or nighttime party?

A. It was during the day.

Q. Did you actually see her?

A. Uh-huh, yes, I did.

Q. Did you recognize who she was?

A. Yes.

Q. Did you know at that time, or believe at that time that

she had had a sexual affair with the person who had been your

boyfriend?

A. Yes. Justin told me that, and I would have no reason to

disbelieve him.

Q. When you saw her at the party at Ocean's house, how did

you feel about her?

A. I was very angry. I really didn't want her to be at my

place of residence.

Q. Did something happen between the two of you?
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2394

A. Yeah, I asked her to take a walk with me, because I didn't

want to confront her with other people around.

Q. Why didn't you want to do that?

A. I just didn't want to make a scene. It was embarrassing

enough already. So I asked her to take a walk so I could talk

to her about it.

Q. Did you and she take a walk?

A. Yes, we did.

Q. Where did you walk?

A. I remember walking over to the school, right near Ocean's

house.

Q. Did you go into a building, or did you go somewhere else

at the school?

A. No, we were just outside, like in the football field,

track area.

Q. Did you have a conversation with her?

A. Yes.

Q. Do you remember what you said to her?

A. Yes. I remember telling her that I thought it was just

really wrong and disrespectful of her to have, you know,

cheated in that way, and that I thought she was -- as a

feminist, as an activist, I thought it was really

inappropriate and wrong. And I was really angry. I don't

remember exactly what I said, but I did tell her that I

thought she had been unprincipled and I didn't want her to be
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around me. I didn't want her to be at my house.

Q. Did you call her any other names? You've heard some words

that were spoken in court. Did you call her a slut?

A. I probably did.

Q. Where did you go after that conversation?

A. I just walked back to my room, just to calm down and cool

off. I kind of remember just taking off, just walking away

from her and just going back to my room.

Q. Did you go back into the main house at some point?

A. Yeah, a little bit later.

Q. Was she there anymore?

A. No, she had left.

Q. Now, you heard Lacey testify, Lacey Phillabaum testify,

that May 20, 21, the weekend this arson apparently took place,

that she was there at Conger Avenue. You heard her testify to

that?

A. I did.

Q. You heard her testify, did you not, that Ocean was living

at that building at that time?

MR. BARTLETT: Objection, Your Honor. Misrepresents

what the testimony was.

THE COURT: Well, rather than repeat the testimony as

you heard it, why don't you ask her a question that might

bring the same answer, but do it that way.

MR. BLOOM: Okay.
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2396

BY MR. BLOOM:

Q. In May 2001, was Ocean living at Conger Avenue?

A. No, they were still doing a lot of construction at that

point.

Q. You heard testimony about devices being built in the

garage where you were staying. You heard testimony about

that?

A. Yes.

Q. Firstly, in your presence, did any such thing happen?

A. No, not at all.

Q. Did you at any time, in the spring of 2001, go to your

living space and see any evidence, any indication that there

was any plastic sheeting had been put up in any part of your

living space?

A. No.

Q. Have you ever, have you seen -- you've seen pictures of

the devices throughout this trial, right?

A. Yes.

Q. Have you ever in life seen, other than pictures, have you

ever seen any devices like that?

A. No, never have.

Q. Have any devices like that ever, to your knowledge, been

built in any living space that you've ever been in your entire

life?

A. No, not to my knowledge.
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2397

Q. Let's move on to the car that they say was involved in

this incident. Did you ask anyone to rent a car for you in

May of 2001, or thereabouts, any time during that period?

A. No.

Q. Now, did you have a cousin?

A. Yes.

Q. Robert Corrina, who lived in Olympia?

A. Yes.

Q. Was he married?

A. Yes -- well, I don't think they were married at the time,

but he had a partner.

Q. Is her name Kara Larson?

A. Yes.

Q. And they have a child -- do they have a child?

A. They do.

Q. What's the child's name?

A. His name is Xie.

Q. In terms of moving to Olympia, who moved to Olympia first,

you or Corrina?

A. I did.

Q. Did there come a time when he contacted you and asked you

about how is living in Olympia?

A. Yes. He was interested in moving there.

Q. And after he did that, did you have a conversation with

him and tell him what Olympia was like?
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2398

A. Yes.

Q. Did he then move to Olympia?

A. Yes, he did soon after that, moved to Olympia.

Q. Did they have a child at that time?

A. No. She was pregnant at that time.

Q. When they first moved to Olympia, with whom did they stay?

A. They stayed with me.

Q. Do you remember where you were living at that time?

A. It was on the west side. I think it was East End Street.

Q. End N Street?

A. East End Street.

Q. About how long did they stay with you?

A. A couple months, I think.

Q. Did you charge them rent?

A. No.

Q. Did there come a time when they found a place of their

own?

A. Yes.

Q. Was that in Olympia?

A. Yes.

Q. Is that on Capitol Way?

A. That was the place.

Q. Is that the right street? Did you have contacts with them

from the time they moved there until you left to go to the Bay

area?
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2399

A. Yes.

Q. When did you move to the Bay area?

A. In February, beginning of February, 2002.

Q. I will get back to that later.

In terms of dealing with them, how often would you see

them? Not when you were living with them or they were living

with you, but when that wasn't happening, how often would you

see them or speak to them?

A. Well, there was a time when we weren't actually talking at

all.

Q. Why is that?

A. Well, when they were staying with us --

Q. You say us, who was us?

A. Me and there was my boyfriend and there were two other

housemates.

Q. Is it the same boyfriend, Justin, or someone else?

A. No, it was someone else.

Q. What was his name?

A. Paul.

Q. I am sorry to interrupt you, continue. You said they were

staying with us, you, Paul, and two housemates. And what

happened?

A. When they were staying with us, Paul was a smoker,

cigarette smoker. I guess there was a time when they didn't

feel like he was being very respectful around Kara and
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2400

smoking, and they got really angry, and we just had a falling

out about it because I wanted them to communicate directly

with Paul about it and not really put it on me, even though I

agreed he shouldn't be smoking around her. I wanted them to

communicate with him and not make me be the one to do that.

And they just, I felt like they just -- they overreacted,

and they were angry and we didn't really talk much after that

for, it would probably be maybe over a year. Because the next

time I ran into them at the Capitol Theater, they had their

son and I just said, you know, there's no reason for us not to

be talking, can we just make up? And at that point,

everything was patched up. And then from then on, you know, I

probably just saw them for dinner sometimes, you know, every

once in a while.

Q. You said Capitol Theater. Was that the time you showed

your documentary, or was it sometime before that?

A. It was before that. I think I was just seeing a movie

there, and I ran into them there.

Q. So after that approximately year of not being real close

with them, then you had a cousin-to-cousin relationship, is

that a fair way to describe it?

A. Yes.

Q. Now, you've heard testimony about Mr. Corrina renting a

car; that is, Kara actually renting the car.

A. Yes.
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2401

Q. Do you have a particular memory of, firstly, of them

renting a car?

A. Yes. I have memory of them renting a car a couple

different times.

Q. A couple different times?

A. Yes.

Q. Do you have a particular memory of when it was that they

rented -- if they rented a car sometime in 2001, do you have a

particular memory, before you heard anything in court, of when

that would have been?

A. No, it doesn't stick out in my mind.

Q. Is that a memorable event for you, the fact that they

rented a car for a weekend?

A. No.

Q. Now, you heard testimony about requests to move some of

your things out of their house.

A. Yes.

Q. And was that something that happened once, or did it

happen more than once? That would be the request to get your

things moved.

A. More than once.

Q. How did he feel about your things being in the house?

A. Well, Rob is an interesting person. He sometimes will say

something, and then it will turn out later that he didn't

actually mean it. Like my impression is that it was fine for
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2402

me to move some things there, but then it turns out he was

actually annoyed about that and wanted me to move my things.

MR. BLOOM: Judge, before I go into the next area,

can we take a break for lunch now?

THE COURT: This will be a new area?

MR. BLOOM: No, same area but complex.

THE COURT: Let's take the noon recess at this time.

It's close enough. I will have you get a bite. Don't discuss

the case when you are back in the building, into the jury

room. Leave your books on the chair. Don't discuss the case.

See you at 1:00.

(Jury not present.)

THE COURT: Anything we need to do other than take

the recess?

MR. BARTLETT: The only thing I would ask, if this is

the last witness, Ms. Waters?

THE COURT: Any other witnesses?

MR. BLOOM: No other witnesses.

THE COURT: All right.

MR. BLOOM: Could we be notified if there are

rebuttal witnesses?

THE COURT: What?

MR. BLOOM: Will we be notified now if there are

rebuttal witnesses?

THE COURT: If this is the last witness, you can
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2403

probably answer that.

MR. BARTLETT: Actually I can't. I need to hear what

she has to say.

THE COURT: All right. We'll be in recess.

THE CLERK: All rise, court is in recess.

(Luncheon recess.)

(Jury present.)

THE COURT: All right. You may be seated.

We are examining Ms. Waters, so we are ready to begin?

MR. BLOOM: Yes.

THE COURT: Ms. Waters, let me have you come back and

take the witness chair.

We are ready for the jury, too?

MR. BLOOM: Yes.

THE COURT: Bring them in.

(Jury present.)

THE COURT: All right, you may be seated.

Mr. Bloom.

MR. BLOOM: Yes.

BY MR. BLOOM:

Q. Before we continue where I was, I wanted to go back. I

forgot to ask you one thing about the facilities at Evergreen.

Do they have music recording studios there?

A. Yes. I recorded in the recording studios there before.

Q. Are there any soundproof rooms that are recording studios?
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2404

A. I am assuming that the recording studio would be

soundproof. Most recording studios are.

Q. Now, we were talking about your cousin Rob Corrina and his

partner, Kara Larson. Did you live with them at any time

during the year 2000?

A. Yes, I lived with them that summer.

Q. That summer?

A. The summer of 2000.

Q. Is that when you left some of your belongings there?

A. Yes.

Q. Did you baby-sit in that period?

A. Yes.

Q. Now, with regard to the testimony that Mr. Corrina gave

about renting a car, do you have any particular recollection

of that period, of the car being rented by him and/or his wife

in that period, that would be the spring of 2001?

A. Yeah, I remember him asking me if I would move some of my

stuff around that time.

Q. Do you have any memory of actually using a rented car, the

car that he and his wife had rented?

A. No, I don't.

Q. Now, there's been testimony with regard to your giving him

money.

A. Uh-huh.

Q. Did you give him money sometime just before you moved to
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2405

California?

A. Yes, I did. I wanted to contribute for the phone calls I

made, and just, you know, for being able to stay there.

Q. Could you speak louder?

A. For being able to stay there, for their bills and

everything, I just wanted to contribute.

Q. Was any part of the money that you gave him -- about how

much do you remember giving him?

A. About $100.

Q. Did any part of that money have anything to do with the

rental car?

A. No.

Q. I want to go back now to the Watch Mountain campaign.

Could you give the jury -- well, let me ask this question

first. Was this -- did you and the people who were involved

in the campaign have any dealings with federal officials about

that campaign?

A. Yes. With the Forest Service?

Q. Yes. The Forest Service, yes.

A. Yes.

Q. What happened? Please tell the jury what happened with

regard to the Forest Service.

A. Well, we obtained a permit to be able to have, I think it

was called, some kind of an extended stay permit. Because of

the national forest, you are only allowed to camp for a
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2406

certain number of days, I think it might be two weeks or maybe

a month, I forget. Whatever time it was, that time was

running out. So we kind of got together with the town and

applied for a permit to stay longer from the Forest Service.

Q. Do you remember whether or not there came a time when that

permit was renewed?

A. Yeah, they renewed it as many times as we needed to, as we

wanted to.

Q. So this was not an operation where the Forest Service had

no idea you were going to be there, right?

A. Well, they didn't know at first, but then subsequently

they give us permission to be there.

Q. Did the people in the town of Randle at any time come out

to the -- let me withdraw that.

Would it be called, or could it be called a tree sit?

A. Yes.

Q. Could you explain to the jury what a tree sit is?

A. A tree sit is when people raise platforms, wooden

platforms, really high into the trees, I would say over 100

feet, and they would occupy the platforms 24-hours a day.

Q. What was the purpose of that?

A. The purpose was that -- the idea is that if there's

someone in the tree, then people wouldn't want to cut it down.

But our purpose also, just as a group, was we know that tree

sits gain media attention, so it was definitely a tactic to
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2407

get some media attention on that campaign.

Q. Were you aware of other tree sits at other times, with

other people in other places?

A. Yes.

Q. Does the name Julia Butterfly ring a bell?

A. Yes. Julia Butterfly had a tree sit in California that

was very well-known to the media.

MR. BLOOM: I would ask to mark some exhibits for

identification, please.

I will give a copy to the other side.

MR. BARTLETT: What's the exhibit number on this?

THE CLERK: A-214.

BY MR. BLOOM:

Q. Could you take a look at what's in front of you, Exhibit

A-214. Could you just, in general terms, describe what you

are looking at?

A. This is the permit from the Forest Service that we got.

It says August 9 of 1999.

Q. I am sorry, a little louder?

A. August 9, 1999.

Q. Is there anything else in that exhibit?

A. Yes, there's a lot of stuff in here.

Q. Well, take a look.

A. There's a flier for the Support Watch Mountain Randle

community picnic.
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2408

Q. Anything else?

A. There's another permit that was renewed in October of

1999.

Q. Anything else?

A. Yeah, this is all permit stuff. Here's some pictures from

the tree sit.

Q. Is any of those pictures anybody you recognize?

A. Yes. Well, there's one picture of just looking up at the

platforms, and then a picture of me on the traverse lines.

Should I explain what those are?

The traverse lines are just the ropes that were attached

to go in between the platforms, because there were two

platforms. So we had traverse lines that you could walk

across so you could travel around, we call it a tree village,

more than one platform. So you could go back and forth

between the platforms.

And then there was a woman from Randle who was climbing.

The people from Randle, some of them learned how to climb the

trees.

Q. Was she one of the residents of Randle?

A. Yes.

MR. BLOOM: I offer that exhibit in evidence.

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-214 admitted.)
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2409

BY MR. BLOOM:

Q. Is that the woman from Randle?

A. Yes.

Q. Do you remember her name?

A. I don't. I am really bad with names. I always remember a

face, but you can't count on me for a name.

Q. How about this other person here?

A. That's me.

Q. All together, how much time did you spend on the Watch

Mountain campaign, from the time you first became aware of it

till the time it was over?

A. Till the time the campaign itself was over?

Q. Yes.

A. It was -- I guess it was about a year, a little under a

year.

Q. And you documented that as much as you could?

A. Yes.

Q. What was the result of the Watch Mountain campaign?

A. It was a successful campaign for the most part. Watch

Mountain was completely saved, taken out of the land exchange.

They negotiated with our groups to log some acreage in Fossil

Creek, which was another part of the land exchange, so they

did log some of that. But the most old growth sections of

that exchange in Fossil Creek were also saved.

So it was mostly a success.
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2410

Q. Was there a party?

A. Yes. I think there was more than one party.

Q. Were people from the town at the party?

A. Yes.

Q. You heard Ms. Troxel's testimony about bringing people

together, more or less?

A. Yes.

Q. Could you tell the jury your experience and your learning

experience from those events?

A. Well, yeah. It was really one of the most exciting

experiences of my life, just to have such diverse and unique

people come together and work together on a common goal,

especially when it was such a very intense situation, with the

people feeling like their lives were actually in danger with

the mud slide -- with the possibly of a mud slide.

It was just a wonderful experience to know those people

and to bridge those gaps that were between, you know,

environmentalists and loggers, you know, stereotypically. And

for me, I mean, it was really just a great example of the way

that things should be done for a change.

Q. Did it make you want to commit an arson?

A. No, it had the opposite effect.

Q. I want to talk about Bill Rodgers for a moment. Was Bill

Rodgers in the video that you made?

A. No. I don't think he was in there.
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2411

Q. Now, do you remember meeting Bill Rodgers at some point?

A. I remember meeting him on the campus. I think it was at

one of the earlier meetings for -- it was either at an early

meeting for Watch Mountain, or possibly a meeting about -- we

did an action with the steelworkers in Tacoma, it might have

been at that meeting. I forget which one it was.

Q. You say an action with the steelworkers. What do you

remember?

A. We worked with the steelworkers in Tacoma to do an action

where we tried to block the shipment of some oar that was

coming in. It was an alliance that was formed, based on the

company MAXXAM, and we were coming together to protest their

logging practices and to the way they treated their employees,

and steelworkers were working with us about that.

So it might have been a meeting about that.

Q. What year would that have been, more or less?

A. Early, I think, it was either around -- yeah, it was late

1998 or early 1999, something around there.

Q. Did you come to know Bill Rodgers by any other name?

A. I knew him as Avalon.

Q. Describe what kind of person he was.

A. He seemed nice to me. As I started to get to know him

better, I learned he was a very depressed person and pretty

needy.

Q. I am sorry, needy, did you say?
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2412

A. Needy, yeah.

Q. Did he call you from time to time just to talk?

A. Yes.

Q. Did you ever have a romantic relationship with him?

A. No.

Q. Did there come a time when he asked you to do him a favor?

A. Yes.

Q. What was that favor?

A. He asked me to get him a phone, because his credit was bad

and he needed a phone. He said he would pay me, you know,

each month for it.

Q. Did you have to put out, except for a week or two or

three, did you either lose any money or make any money on

those events?

A. No, he just gave me money for the bills. I didn't have a

lot of money, so I am sure he gave it to me in advance because

I probably wouldn't have been able to cover it. My memory is

that he just gave me money in advance for it.

Q. Did you think it had anything to do with any criminal

activity?

A. No, I didn't think so. I didn't have any reason to

believe that.

Q. Did you get this phone in your own name?

A. Yes.

Q. Did you hide anything from anybody?
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2413

A. No.

Q. When you paid -- was it Verizon, if I remember correctly?

A. Yes.

Q. Did you pay them with your own checks?

A. Yes.

Q. Checks with your name printed on them?

A. Yes.

Q. Were you trying to hide anything?

A. No.

Q. Did you ever commit any crime of any kind with Bill

Rodgers?

A. No, I did not.

Q. Or Avalon?

A. No.

Q. There was some testimony about your website that was

brought up by the prosecution in cross-examining, I think,

Ms. Troxel. What was your financial condition before the day

Agent Halla came to see you two years ago?

A. Just living paycheck to paycheck. My partner and I get

by, but we don't have -- unfortunately, even though I try

really hard, we never have any -- are able to save anything.

Q. How do you make a living? How do you make income?

A. I teach violin to both children and adults and perform

sometimes.

Q. Perform by yourself or in bands?
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2414

A. With different various bands, in a couple different bands.

Q. What kind of music do you perform?

A. A variety of different types of traditional music and

original music that I write for people that are in my bands,

everything from Keltic to Balkan to middle eastern, that type

of music.

Q. We are talking violin here; is that correct?

A. Yes.

Q. John, your partner, what kind of work does he do?

A. He's a carpenter.

Q. I don't mean to embarrass anybody, but does he bring in a

lot of money?

A. He tries, but, you know, it's not the easiest job to make

a lot of money at. So it's pretty much, you know, can cover

our bills, but not much beyond that.

Q. So as of the day Agent Halla came around, I think you said

paycheck to paycheck?

A. Yes.

Q. Since that time, has it gotten better or worse?

A. Well, there have been many financial pressures due to this

case. So it's definitely gotten worse.

Q. From the request for money that's on your website --

A. Uh-huh.

Q. -- have you been making a living off that?

A. No. All that money goes towards paying for this case.
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2415

Q. Did there come a time when you ran out of money to pay me?

A. Yes.

Q. And the money that you had paid me, was that money of your

own, or was that other people's money?

A. It was a combination of loans from different family

members and fund-raisers. We had many different fund-raising

events, concerts and silent auctions and things like that.

So I still owe people a lot of money.

Q. This is not a money making scheme, is it?

A. No. Unfortunately, it's not.

Q. I want to go back to one question about the ten-year-ago

New York Times reporter. You noticed, or did you not, in the

question that the reporter asked, he asked both about arsons

and, I think, mink release, as I remember?

A. Uh-huh.

Q. Do you remember one way or the other whether you were

answering about arsons, mink releases, both, or neither? Do

you have any recollection one way or the other?

A. Well, I am sure I wouldn't have been answering about

arsons because I have never agreed with arson.

Q. Why not?

A. Just for the obvious reasons, it's very dangerous to human

lives, and I have always been someone who feels very strongly

about not hurting people in any way. You know, it's just a

tactic, too, you know, not putting it aside. The human
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2416

element, I think that it's very alienating and not effective.

Q. There was some testimony where there was some magazine

articles that were introduced into evidence, do you remember

that?

A. Yes.

Q. These were articles that had been turned over by Ms. Kolar

to the prosecution?

A. Yes, that's correct.

Q. Do you remember being in court when the content of some of

those articles was read?

A. Yes.

Q. Do you remember seeing that there had been highlighting of

some of the language?

A. Yes.

Q. The yellow highlighter. Did you come to learn who it was

who had done the highlighting?

A. It was Mr. Bartlett.

Q. This man right here?

A. Yes.

Q. Were those your words that were highlighted?

A. No, they were not my words.

Q. Do you remember even ever having read those words?

A. No, I don't remember having read any of those articles or

those words.

Q. How did you feel about that testimony coming in against
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2417

you?

A. I felt like it was extremely inappropriate and wrong,

really unfair to try and show that I was thinking these things

or I read these things, because I have never thought those

things. And I thought -- I just thought it was really

inappropriate to use that as evidence against me, to try to

convict me based on things that I have never thought or read

and that I actually believe are quite extremist and that I

definitely disagree with.

Q. Are you a person who wants to burn down Disneyland?

A. No.

Q. And the Statue of Liberty?

A. No. Absolutely not.

Q. Or anything anywhere ever at any time?

A. No.

Q. Now, did there come a time, at any time when you were

living with Rob and Kara, when you went to a hospital?

A. Yes.

Q. When was that?

A. That was, I remember it was right before I moved to the

Bay area. It was January of 2002.

Q. Did we finally get the hospital records?

A. Yes. They were delivered.

Q. I won't bother showing them to you, but do they

demonstrate that in fact you were at St. Peters Hospital in
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January of -- I am sorry, Providence St. Peters Hospital in

Olympia, in January of 2002?

A. Yes, that was an unforgettable event. I was really sick.

Q. What happened?

A. Well, I thought I had food poisoning, and the hospital

labeled it with some really big medical term, like

gastroendometrio -- I don't remember what it was. I just

could not keep anything down. I thought I was going to die.

I was so, so, so sick.

And Justin took me to the emergency room because I had

been talking to the advice hotline, the nurse, because I was

like, am I dying? How am I going to survive? And they just

encouraged me to come into the hospital to get some fluids and

some IV for some fluids, because I would drink water and throw

it up. It was just really bad.

Q. Did Rob, your cousin, Rob Corrina, did he become aware of

the fact that you went to the hospital?

A. Yes. I was staying with him at the time, so I told him

about that.

Q. Am I correct, that was about seven or eight months after

May of 2001?

A. Yes.

Q. Now, obviously that was before you moved to California,

which was what month?

A. February of 2002.
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2419

Q. Have you been in the Bay area ever since?

A. Yes.

Q. I want to talk about Jennifer Kolar for a minute. Do you

remember meeting her at any point?

A. Yes, I met her. I don't recall the exact circumstances.

Q. Did it involve any kind of environmental event?

A. No. I think it was just in Olympia somewhere.

Q. Did you ever commit an arson with her?

A. No, I never committed any arson with her.

Q. Did you ever commit any crime with her?

A. No.

Q. Did there come a time when she gave you a present?

A. Yes.

Q. Do you remember when that was, approximately?

A. I know that it was after she had come back from Hawaii.

Q. How do you remember that?

A. Because the gift was from Hawaii. She told me it was from

Hawaii. It was a necklace from Hawaii. I think that it was

definitely before I moved to the Bay area.

Q. Did you meet with her at any point where she gave you that

necklace?

A. Yes, we were having dinner.

Q. And what city, do you remember?

A. In Olympia.

Q. Do you remember where it was you were having dinner?
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2420

A. I think it was a Thai restaurant, but I am not sure.

Q. Did she say something to you that you remember?

A. Yes.

Q. First of all, in relation to giving you the gift, was it

before that, at that time, or after that? When did she say

this thing to you?

A. After giving me the gift.

Q. What was it that she said to you?

A. Well, she was telling me that she's never felt the kind of

connection with anybody that she's felt with me, with any

other women. And she kind of lead into that she was

romantically interested in me.

Q. Did you respond to her, did you say something to her?

A. Yes. I was surprised, because I wasn't expecting it. I

just told her that I didn't feel the same way.

Q. Do you remember what her response or reaction was?

A. She got really upset, and I think -- I got the impression

that she was expecting a different answer. She was really

hurt. I remember her saying that she thought that I would

have a different response to that.

Q. What was her attitude at that moment?

A. Just kind of embarrassed, but also like, how could you be

rejecting me? Sort of like she's used to getting everything

she wants, you know, is how her attitude was.

Q. Let me move on to something else.
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The government introduced a check for 100-some dollars

that you wrote to Justin's landlord, Mr. Wake. Do you

remember that?

A. Yes.

Q. Do you remember writing such a check?

A. I don't actually remember it, but it could have been when

Justin went away to the east coast that he asked me to take

care of some things, because I believe he was gone for about a

month one summer.

Q. Were you paying his rent?

A. No.

Q. Was that your relationship?

A. Oh, no. He was always the one that had more money because

his dad was supporting him while he was in school. So on the

contrary, it was actually him that was often helping me

financially with things, food and things like that.

Q. I want to talk about Ralph's Thriftway.

A. Okay.

Q. Do you remember, as you sit there now, do you remember the

transaction that took place at seven minutes after 12:00 on

May 20 at Ralph's Thriftway?

MR. BARTLETT: I think Mr. Bloom meant 12 after 7:00.

MR. BLOOM: I have to make sure.

BY MR. BLOOM:

Q. That's what I meant. I am better with the alphabet and
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not so good with numbers.

A. No.

Q. Do you remember that transaction?

A. No, I don't.

Q. When did you first see written printed evidence of that

transaction?

A. Just a couple weeks ago.

Q. How did that come about?

A. Mr. Fox, my lawyer, found it and he showed it to me.

Q. Is that a place that you sometimes shopped?

A. Yes.

Q. Now, there was a question, I think Agent Halla said

something about it's near where Mr. Rodgers or Avalon lived;

is that correct?

A. Yes.

Q. Was there any other connection? Is that the Eastside of

Olympia?

A. Yes, that's what's referred to as the Eastside.

Q. Did you have any other dealings with any other people or

any other places on the Eastside of Tacoma -- I am sorry, of

Olympia?

Sorry, I am losing it here.

A. Yes, I had a lot of friends all over Olympia, but on the

Eastside particularly is where I had my band practice.

Q. You had a band?
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A. Yes, I was in a band.

Q. When you say band practice, what kind of location was

that?

A. It was at someone's house, my friend Jason, we had band

practice there. And Anthea Lawson, who I baby-sat for, and I

also took lessons with Anthea, she lived pretty close to

Ralph's Thriftway, that store. And other friends, I also had

numerous other friends that had houses around that area.

Q. The Lawson you talked about, is that the Lawson that

testified yesterday?

A. Yes.

Q. The assistant attorney general?

A. Yes.

Q. Now, when you first were shown by Mr. Fox, were shown the

documentation of this transaction, did you think about whether

you could remember whether that happened?

A. Yes.

Q. Was it of any significance to you that you learned a few

weeks ago that there was documentary evidence that you were in

Olympia at 12 minutes after 7:00 on May 20?

A. Yes. I was really thrilled about that.

Q. Why were you thrilled?

A. Well, because it would show that I was in Olympia at that

time.

Q. Had you heard the testimony of Phillabaum and Kolar about
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where they say you were?

A. Yes.

Q. Did something happen when you saw that document?

A. Yeah, I got emotional. I cried. It was really -- it just

gave me some hope. I mean, I already have a lot of hope, but

it gave me more hope.

Q. I just have a few more questions.

Before Agent Halla came to see you two years ago, could

you describe what your daily life was about and what it was

like prior to that date?

A. Well, I had just had a daughter in January 2005, so just

raising her and continuing on with teaching my violin lessons

and, you know, trying to perform as much as possible.

Q. Was it a happy time for you?

A. Yes, very much.

Q. And did that change in any way after Agent Halla showed

up?

A. Well, I still have happiness, but, yes, it's been really

stressful.

Q. Has your life been different since that day?

A. Yes.

Q. Are you scared?

A. Yes.

Q. Why are you scared?

A. Well, for the obvious reasons, that I don't want to be
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separated from my child.

Q. Have you told the truth here today, everything?

A. Yes.

MR. BLOOM: Thank you.

Your witness.

MR. BARTLETT: May I inquire, Your Honor?

THE COURT: Yes.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. Since you were just talking about the records from Ralph's

Thriftway, let's just focus on that for a second.

You indicated that several weeks ago you received these

records from Ralph's Thriftway indicating that your

transaction occurred on 7:12 p.m. on May 20, would that be

fair to say?

A. Yes.

Q. And after you got those records, you didn't share them

with us, did you?

A. Well, I don't share anything with you. My lawyers do all

that.

Q. You knew that we've been trying to look for those records

for a significant period of time, a number of years, correct?

A. No, I didn't. I have no idea what you guys do.

Q. Now, would it be fair to say that the closest grocery

store next to the Conger Street address was Olympia Food
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Co-Op?

A. Yes, I shopped there a lot, too.

Q. But you also shopped at Ralph's a lot?

A. Yes. Well, whenever I was on the Eastside and I needed

something, I would go over to Ralph's.

Q. If you could take a look at Government's Exhibit 738, page

29.

A. Am I supposed to have that?

THE COURT: It is admitted?

MR. BARTLETT: Yes.

BY MR. BARTLETT:

Q. If we could highlight the transactions that occurred

during this period.

Are you able to see those?

A. Yes.

Q. As I look down through this list, these are transactions

that occurred on May 16, 17, 18, 20, through the 30th, do you

see those?

A. Yes.

Q. And I see a transaction that occurs on May 17 at Ralph's

Thriftway, correct?

A. Yes.

Q. There's a May 18 transaction.

Let's start over. There's a May 17 transaction at Ralph's

Thriftway for $8.49. Do you see that?
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2427

A. Yes.

Q. There is another $8.49 transaction at Ralph's Thriftway on

May 18, correct?

A. Correct.

Q. And then there's a third transaction, May 21, for $13.91

at Ralph's Thriftway?

A. Yes.

Q. As I understand it, Ralph's Thriftway is about three

blocks from Mr. Rodgers' house?

A. I think so.

Q. How far do you think it is? From the Conger Street

address, it's what, a little over a mile, couple miles?

A. Yeah.

Q. And you say that you shop at Ralph's Thriftway a lot.

Would you do me a favor?

A. Sure.

MR. BARTLETT: Could the witness be handed up the

entire exhibit, Exhibit 738?

BY MR. BARTLETT:

Q. Ms. Waters, these are your bank records for at least all

of 2001; is that correct?

A. Well, there's 2000 --

Q. Why don't you go through until you find January 2001.

What I am going to ask you to do, I'm going to ask you to

take your time and walk through all of your bank records for
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2428

2001 -- January, February, March, April, May, June, July, all

the way through December -- and I would like you to point out

to the members of the jury all the other times your bank

records show transactions at Ralph's Thriftway.

When you get to one, if you can just give us the page

number, I will show it on the screen.

A. I take it you've already looked through these and there

probably isn't any. Is that what you are getting at, or do

you want me --

Q. I don't want to testify for you, Ms. Waters. I want you

to look through and show me the other transactions for Ralph's

Thriftway throughout the year 2001.

A. Okay.

I think this is the end, June 30, 2001 --

Q. There are other records in there.

A. Oh, I see.

Okay, I am done.

Q. There weren't any others, are there?

A. No.

Q. If you could be handed up -- actually, if we could just

pull up on the screen the quote from the New York Times, which

is 740-E.

During your direct examination, Mr. Bloom asked you a

number of questions about this article that appeared in the

New York Times magazine section in December of 1998. Do you
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2429

remember those questions?

A. Yes.

Q. You indicated you couldn't remember exactly what was said

during that timeframe, correct?

A. Correct.

Q. I think that's understandable. But at the time, in 1998

when this article comes out, it must have been a big deal to

you. You'd never been quoted in the New York Times before,

had you?

A. I don't actually remember even knowing about this.

Q. Tiffany Tudder never said a word to you? She didn't come

over and say, "Oh, my God, look, we're in the New York Times"?

A. No, I don't remember that.

Q. Never happened?

A. I don't remember it happening.

Q. Ms. Waters, looking at the quote where it says that the

reporter asked, "I asked the EARN members if they supported

arsons and mink-farm releases," and it has in quotations,

correct, "'As long as people don't get hurt, I totally support

it,' said Briana Waters, a senior."

Wouldn't you agree that the only fair reading of "as long

as people don't get hurt" would refer to the arson? People

don't get hurt in mink-farm releases, do they?

MR. BLOOM: Excuse me. I would call that

argumentative.
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2430

THE COURT: This is cross-examination.

MR. BLOOM: I understand.

MR. BARTLETT:

Q. Ms. Waters, wouldn't you agree that the only fair reading

of that is that the "it" referring -- in your statement

referring to what you support, is the arsons?

A. No. I don't think so. I think the people could get hurt

in a mink farm release, too, if there was a confrontation

between the people that were trying to release the animals and

the person who owned the mink farm. Also people can get hurt

in other ways, other than physically.

Q. I want to ask you a few questions about the Watch Mountain

campaign. Watch Mountain is in Lewis County?

A. Yes.

Q. And that's where a lot of the activities that we've talked

about occurred, the tree sitting?

A. Yes.

Q. The activities with Randle?

A. Yes.

Q. But there were other activities relating to Watch Mountain

that didn't occur in Lewis County, correct?

A. That's correct.

Q. In fact, there were actions that occurred in the City of

Seattle?

A. Yes.
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2431

Q. And those were actions directed against the offices of

Plum Creek Lumber, correct?

A. That's correct.

Q. And their offices were in a building in downtown Seattle,

the Wells Fargo building?

A. I think so. I forget what the building is called, but it

was in downtown Seattle.

Q. In October of 1999, individuals involved in your

campaign -- and I assume you were part of this -- actually

left leaflets on Plum Creek Lumber employees' desks warning

them that further actions were going to occur if they didn't

change their ways, correct?

A. We went to their offices. I don't remember leaflets.

Q. Do you remember going to their offices, a number of the

people you were working with, and a number of individuals put

bike locks around their necks and chains and locked themselves

to the desks in the front lobby?

A. I wasn't there for that one. That was a different one.

That was before the tree sit happened.

Q. On October 28, you were at the Wells Fargo building,

correct?

A. That's correct.

Q. You had your videocamera there?

A. Yes.

Q. Your boyfriend was there, Justin Solondz?
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2432

A. Yes.

Q. And the plan was that 20 to 25 of you were basically going

to take over the Plum Creek Lumber offices?

A. No. We didn't want to take it over. We just wanted to

just talk to the employees there.

Q. You say talk. What you really wanted to do was harass the

employees there, correct?

A. That's probably a fair word to use.

Q. You planned to go up to their offices and provide them

eviction notices?

A. Yeah, I forgot about that part. Yeah, that happened.

Q. In fact, there was security guards and police there

telling you not to enter, correct?

A. No, they didn't tell us not to enter. We went in and they

told us they wanted us to leave.

Q. Eventually there was physical altercations between some of

the people there and the security guards?

A. Yes.

Q. People were arrested?

A. Only Justin was arrested.

Q. Employees were yelled at and confronted in the office?

A. Yes.

Q. To clarify, the people being confronted, they are not the

owners of Plum Creek Lumber, these are just everyday people

going to their work, right?
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2433

A. Yes.

Q. And during this confrontation, individuals that you were

working with indicated that they are not going to go away,

they are going to keep coming, they are going to keep doing

this. We're not letting you cut these areas. Whatever it

takes, we are going to push. We're committed, whatever it

takes.

You heard those words, didn't you?

A. Yeah, you probably got that from my video documentary. It

was in there.

Q. When you heard the words on October 28 of 1999 that if the

takeover of Plum Creek Lumber Company didn't work, the next

step would be something greater, what did you understand the

next step to be? What is the "whatever it takes"?

A. I think to me it just means we are going to keep trying.

Just keep pursuing all the avenues we could pursue to get the

timber sale -- the land exchange dropped.

Q. You indicated in your direct examination how serious you

felt this arson was. Do you remember that?

A. Yes.

Q. And do you remember Mr. Bloom talking in his

cross-examination of Toby Bradshaw, that he thought this was

beyond a horrible crime? Do you remember hearing that?

A. Yes.

Q. But your statement on direct examination and Mr. Bloom's
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2434

statement during his cross-examination isn't the only time

that you have indicated an opinion about how serious the

University of Washington arson is?

Do you remember March of 2007 --

MR. BLOOM: Excuse me, can she answer that question,

please?

BY MR. BARTLETT:

Q. That isn't the only time you've had an opinion about how

serious the University of Washington arson is, is it?

A. No.

Q. In fact, in March of 2007, a document was filed with this

very court setting forth your view of how serious the

University of Washington arson was, in a written filing. You

are aware of that?

MR. BARTLETT: Could the witness be handed up what's

been previously marked as Government's Exhibit -- actually,

Your Honor, I think I have it here.

MR. BLOOM: Are we talking about a pleading prepared

by one or both of her lawyers, is that what we are talking

about?

THE COURT: I am not sure. Is this something

admitted?

MR. BARTLETT: A pleading filed by Ms. Waters through

her attorneys.

THE COURT: Well, do you have a copy of this?
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2435

MR. BLOOM: We have a copy, but we now have a copy

that has been given to us.

MR. BARTLETT: It's a pleading they filed.

MR. BLOOM: Right. I am not saying otherwise.

THE COURT: All right. Your question on this?

BY MR. BARTLETT:

Q. Does the witness have it in front of her?

A. I don't have it.

MR. BLOOM: What's the exhibit number, please?

MR. BARTLETT: 1101.

MR. BLOOM: The date of the pleading?

BY MR. BARTLETT:

Q. Do you have that in front of you?

A. Yes.

Q. You recognize that as a written document that was filed by

you and your attorneys in this court?

A. I don't remember ever seeing this before, but I am seeing

it now.

Q. Looking at page 3, starting at line 15, do you see where

in this written document there is a description of the

University of Washington arson which appears as follows: That

it was "An act which did not injure anybody, which was not

intended to injure anyone, and which, at most, was a misguided

act by those desperate to preserve the Earth against corporate

onslaughts." Do you see where that appears?
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2436

A. Can you tell me where it is?

Q. Looking again on page 3 at line 15.

A. Oh, line 15, okay.

Q. Do you see where, in describing the University arson,

University of Washington arson, it describes it as, quote, "An

act" --

A. I see that now.

Q. Wouldn't you agree that that description is significantly

different than what you testified to? This actually sounds as

though somebody is a little sympathetic to these people.

A. Well, my lawyer might be, but I am not, and I didn't write

this. My lawyers wrote this. I don't have a lot of time in

my life outside of just living my life and trying to spend

time with my daughter. I don't help them write these things;

they write what they write.

Q. Isn't it true, Ms. Waters, that prior to coming in front

of this jury, you wanted all of your friends in the

environmental community, to let them know that you really

supported them, that you thought this was a de minimis act, a

property crime? That's what you told everybody prior to

testifying, correct?

A. No. I didn't tell that.

Q. So your lawyers totally misrepresented what your true

beliefs were?

A. I just trust they are going to write, you know, what their
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2437

job is, to write things that will help defend me. This is not

my words.

Q. Isn't it true, Ms. Waters, that you change your position

when you are in front of these 14 people so that you think you

will be more sympathetic? Isn't that what's going on?

A. No. No, it's not.

Q. This morning we heard testimony from your prior teacher,

Ms. Lin. Do you remember that testimony?

A. Ms. Lin, yes.

Q. And in her testimony, she talked about, during direct

examination, that the website appeared to be an outdated, and

not updated very often. Do you remember that testimony?

A. Yes.

Q. If you could take a look at what's already been marked as

an exhibit, Exhibit 1102 for identification.

Do you have that in front of you?

A. Yes.

Q. That's your supportbriana.org website?

A. It is.

Q. In fact, when you look at the very beginning of that

website, it actually has two updates since this trial. It's

been updated twice since the trial started, correct?

A. Yes.

Q. One of the things that the website asks is for supporters

of you to come to the trial and support you, correct?
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A. Yes.

Q. And in fact, it isn't just that website, there are other

websites that provide your supporters guidance on coming to

court and how to get here and what to wear, correct?

A. I don't know. I really don't have a lot of time to look

at the websites. Any time that I am not dealing with this

right now, I am spending with my daughter every minute. So I

really couldn't tell you the answer to that.

Q. Last Friday there was a class of -- a teacher brought a

class in, correct?

A. Oh, yes. That was my friend.

Q. Your friend brought her class in for the morning, right?

A. Yes.

Q. And I noticed during that morning time that none of your

supporters were here, it was empty. Do you remember that?

A. Well, I think there were some. John's been here every

day.

Q. But then in the afternoon when your class was gone, a new

six people showed up. Do you remember that, six people showed

up right after lunch?

A. I think you are keeping track more than me. I am not

sure.

Q. That's because it was so organized, everybody knew the

class was going to be in the morning and they needed to come

in the afternoon, right?
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A. I am sorry, no, I am not organizing any of the supporters'

comings or goings. I don't do any of that stuff.

Q. You are aware that there are individuals in Olympia that

organize people, coming in and actually providing direction on

how they should act, what they should wear. In fact, they

instruct them that they should camouflage how they normally

appear, correct?

A. I don't know. I haven't seen any of that.

Q. With regard to your web page, it is correct that you did

solicit funds for attorney fees for your two attorneys,

Mr. Fox and Mr. Bloom, correct?

A. In the very beginning, yes.

Q. It still appears on your web page, right? When it's

downloaded, it still appears there?

A. Yes.

Q. In fact, you've never paid a dime to Mr. Fox?

A. No, I haven't, but I didn't know that in the beginning. I

didn't know if I was going to have to pay him or not. All the

text on the website, aside from the recent update, was written

by my brother, who volunteered to do this for me. I give him

a general idea of what to do, and then he does it. I don't

have the time to maintain it myself.

Q. The website also says people can actually get a tax

deduction by donating?

A. That's right.
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Q. How does that work?

A. There's a group in Portland who have provided their

501(c)(3), I think it's called, the nonprofit umbrella for

people to make tax deductible donations.

Q. Does that seem right to you, that they could actually give

money to you for your legal defense but wash it through a

charity?

MR. BLOOM: I've sat down long enough. I really must

objected to this.

THE COURT: Move on to the next question.

BY MR. BARTLETT:

Q. During your direct examination there was discussion about

you and your partner's financial situation.

Just so I can be clear, what's the primary source of your

income on a month-to-month basis?

A. My partner's income, which is from his carpentry work.

Q. I want to talk about your relationship with Bill Rodgers.

You indicated you moved to Olympia if 1996?

A. It was 1997.

Q. Started taking classes at Evergreen College during the

winter of 1997, would that be accurate?

A. That's correct.

Q. Had attended the University of Dayton two years and then

transferred out?

A. Yes.
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Q. While you were in Olympia, you met Bill Rodgers, or was it

during the Watch campaign?

A. It was before the Watch campaign.

Q. You knew him as Avalon?

A. Yes.

Q. You became friends with him?

A. Yes.

Q. Close friends?

A. Just friends. I wouldn't say very close.

Q. He was part of the Watch campaign?

A. I remember him at some of the meetings in Olympia, but I

don't remember actually seeing him at the tree sit or in

Randle.

Q. Not at all?

A. No.

Q. Speaking of the Watch campaign, it's true that at the time

the Watch Mountain land transfer was proposed, it was unusual

in that there was a number of people normally associated with

pro-environmental stands that supported it, correct?

A. In Seattle, yes, because they wanted to have their areas

preserved and they weren't necessarily thinking about the

areas down south.

Q. I just want to clarify, though. Senator Patty Murray and

Senator Gorton both supported it, correct?

A. I think so.
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Q. And the Sierra Club?

A. Yes.

Q. And the Alpine Lakes Protection Society?

A. Yes.

Q. And the Mountaineers?

A. Yes.

Q. Going back to Bill Rodgers, at some time in the spring,

probably around April of 2000, he asked you to get a cell

phone for him; correct?

A. Yes.

Q. At this point in time you are very poor, you don't have a

cell phone?

A. That's right.

Q. You are living hand-to-mouth?

A. Yes.

Q. And he turns to you to get the cell phone?

A. Yeah, for whatever reason he asked me to do it for him as

a favor.

Q. Taking a look at Government's Exhibit 712, page 38.

It is admitted. We can just pull it up on the screen,

Pat.

Do you see that bill?

A. The text is really small, but yes I see that.

Q. In looking at the amount, do you see how much that bill

was?
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A. $91.37.

Q. It's a lot of money, correct?

A. Yeah.

Q. So you are relying on Bill Rodgers to make sure he doesn't

stick you with this bill every month it comes in, he's got to

pay you?

A. Yes.

Q. And you write checks out from your bank account, and we've

seen those checks?

A. Yes.

Q. And in addition to your covering the bill every month, he

also uses the phone to call you a fair amount, correct?

A. I think he called me once in a while, yes.

Q. Could we pull up Exhibit 713. You've seen this chart

before, correct?

A. Yes.

Q. And all of the calls that Mr. Rodgers uses with your cell

phone to call Robert and Kara Corrina, all 25 of those, those

are all for you; correct?

A. Yes.

Q. With regard to the 25 calls to Ocean, those are also all

for you, correct?

A. I don't know. There are other people working there and

living there, so it could have been for other people.

Q. A huge majority, can we agree on that?
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A. I don't know. I don't remember. I didn't keep track.

Q. Some of the phone calls that go to Teresa Howell, you

lived with Teresa Howell for a while, correct?

A. Yes, but I would say for that, those were probably going

to her or other people in the house, because they were really

good friends.

Q. So never you?

A. Well, maybe occasionally. I know they were better friends

than me, than me and him were.

Q. But some of them went to you?

A. Yes.

Q. So if you were to add up those calls, the 25 calls to

Mr. Corrina, most of the calls to the Conger Street address

for Ocean, some of the calls made to the Howell residence, it

means that he called you more than anybody on this list, isn't

that accurate?

A. Well, I wouldn't say that it was most of the calls to

Ocean's house. I said I don't know how many those calls would

be. So I don't know.

MR. BLOOM: I would ask it be pointed out the time

period this covered.

THE COURT: I don't know -- are you talking about --

MR. BLOOM: I think a fair question of the witness

would indicate it's from the first of the year to the last of

the year, covering the entire year's period. I think the
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question should include that.

THE COURT: It's listed right there, isn't it?

MR. BLOOM: It is.

BY MR. BARTLETT:

Q. Mr. Rodgers and you had opportunities to talk on a number

of different occasions about his environmental views?

A. The primary aspect of our friendship that I remembered was

really me being just a support person for him. He was pretty

depressed and lonely. And that's the majority of what we

talked about.

Q. You've heard people describe his writing and rewriting of

the manual "Setting Fires with Electrical Timers," the Bible

for how to make incendiary devices for ELF; you've heard all

about that?

A. Yes.

Q. And you've heard Jennifer Kolar talk about the actions he

was involved in, how important it was, and the constant talk;

you've seen that, you've heard that?

A. Yes.

Q. And you've seen the things from his house at the time he's

arrested in December of 2005, where there's articles. He's

reworking manuals. Don't all those things lead one to believe

that Bill Rodgers was obsessed with these types of activities,

direct actions to protect the environment?

A. That's not really how I knew him; but that might be, might
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lead someone to believe that.

Q. You are involved in environmental movements? You are

involved in all these above-ground environmental movements and

you want this jury to believe that, gee, this topic never

comes up?

A. I didn't say it never came up. You said numerous times.

I didn't think that numerous times categorized it or

characterized it, but sometimes, sure.

Q. In addition to knowing Bill Rodgers, obviously you knew

Justin Solondz?

A. Yes.

Q. Your boyfriend?

A. Yes.

Q. He graduated from the Evergreen State College in 2003?

A. I am not sure what year it was. But that sounds right.

Q. Would you take a look at Exhibit 115? This is what

Mr. Solondz looked like for a long time during the time you

knew him, correct?

A. Correct.

Q. But there came a point in time when he changed his

appearance, correct?

A. Yes.

Q. That's Exhibit 115A, correct?

A. Yes.

Q. And you remained in contact with Mr. Solondz? For
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example, Special Agent Halla contacted you on February 24 of

2006. You indicated that you had received an e-mail from him

just prior, a couple weeks before?

A. I don't know if it was a couple weeks, but yeah, he sent

me an e-mail from his travels.

Q. And he's currently a fugitive, you know that?

A. That's right --

MR. BLOOM: Objection, he's not technically a

fugitive. A person who's been arrested is a fugitive. As I

understand it, he was not arrested.

THE COURT: You will get a chance to redirect or do

something. There's no sense in keep jumping up and down

unless it really goes to something.

MR. BLOOM: This is the second time I jumped up. I

am trying not to object, but he's not a fugitive.

THE COURT: Leave it there. Question.

BY MR. BARTLETT:

Q. In fact, his mom came out and sat through the first week

of your trial, Bianca, didn't she?

A. Yes.

Q. At the time you knew Mr. Solondz, he also was involved in

music?

A. No.

Q. He wasn't in a band?

A. No.
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Q. He didn't play music with Nathan Block?

A. I think they might have started doing some electronic

stuff like after I left; but when we were together, he wasn't

doing that.

Q. But you knew Nathan Block, though?

A. Yes.

Q. Exhibit 118. He also lived in Olympia?

A. Yes.

Q. And you knew his girlfriend, Joyanna Zacher?

A. A little bit.

Q. Exhibit 119.

A. Yes.

Q. And you knew Suzanne Savoie, India?

A. I believe I met her once.

Q. Exhibit 120. And you knew Chelsea Gerlach?

A. Yes.

Q. And you knew Joe Dibee?

A. Yes.

Q. In fact, Mr. Dibee made two phone calls to you, correct?

A. That's what the phone records say.

Q. You've had a chance to go through them?

A. What's that?

Q. You and your attorneys have had a chance to go through the

hundreds of pages of Mr. Dibee's phone records; you've had a

chance to look at them, correct?
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A. I haven't personally looked at them.

Q. Was there more than two phone calls?

A. I don't think so. I think those were the only ones.

Q. And the two phone calls from Mr. Dibee, to Mr. Corrina's

house, were immediately prior and immediately after the

Susanville arson, correct?

A. That's the information that's been presented.

Q. You also knew Jennifer Kolar?

A. Yes.

Q. You saw her testify?

A. Yes.

Q. And she was more than just an acquaintance, you considered

her a friend?

A. Yes.

Q. She's smart?

A. Yes.

Q. Someone you could talk to?

A. Yes.

Q. And in fact, when you were screening for the Watch video

that occurred in Seattle at the 9/11 Studio, you invited her?

A. I don't remember. Possibly.

MR. BARTLETT: Could the witness be handed what's

been previously marked and entered into evidence as government

Exhibit 614.

BY MR. BARTLETT:
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Q. Taking a look at that, you recognize that manila folder,

don't you?

A. Inside this?

Q. Yes, you can take it out.

A. Okay.

Q. You can take it out of the plastic and take a look at the

inside page. You recognize that folder, correct?

A. I don't remember the folder itself.

Q. The writing that appears on that folder is your

handwriting?

A. It looks like my hand writing.

Q. It says, "Hey Woman! Here's some stuff to read that I was

telling you about. We'll hang out soon. Heart, B."

So you provided a number of articles to Ms. Kolar within

this folder?

A. That's apparently what it looks like. These articles that

are here are not the ones I remember giving her, but it looks

like I gave her a folder with something in it.

Q. What was in the folder?

A. I don't remember.

Q. Are you saying that this definitely was not the items that

were in the folder, or "it could be and I just don't

remember"?

A. I am saying that these articles were not articles that I

recognize or that I think I ever read. So I think it would be
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2451

odd if I had given her these articles.

What her and I had talked about were issues of women and

activism and vegetarianism and things like that. So I would

think that I would have given her those types of articles.

We had a pretty extensive library of materials in the

Evergreen Animal Rights Network, in the office, we had a

library. We didn't have any of this stuff. There wasn't

anarchist materials or anything like that.

Q. You saw that Justin's fingerprints were on a number of

these articles?

A. Yes.

Q. And you saw that two of the articles were written by Chris

Dixon, and you know who Chris Dixon is?

A. Yes.

Q. Chris Dixon actually went to Evergreen with you?

A. Yes.

Q. And he was a member of EARN?

A. Yes.

Q. And as I understand it, it's your belief that Ms. Kolar at

some point became attracted to you in a physical way?

A. Yes.

Q. You heard her testify?

A. Yes.

Q. You heard her talk about the various men she was involved

with, and the fact that she's been in a relationship for the
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2452

past seven years?

A. Yes.

Q. But it is your testimony that she became fixated upon you?

A. I guess.

Q. And when you rejected her, it created such venom in her

that she's falsely framing you for this crime?

A. Unfortunately.

Q. Could you point out all of the e-mails that Ms. Kolar sent

you as she was obsessed with you?

A. I don't believe that we communicated through e-mail.

Q. Could you point out in the phone records, all of the phone

calls that Ms. Kolar called to you as she was obsessed with

you?

A. I don't think I was saying she was obsessed with me. I am

just saying that she told me that she was romantically

interested in me. That's all.

Q. You heard her testimony that she went down to the 9/11

Studio on the night that Watch was premiering?

A. Yes.

Q. A big day for you?

A. Well, it was a showing. It actually wasn't the premier of

the film.

Q. But it was an important day for you?

A. Yes.

Q. But Ms. Kolar did not have even enough interest to even
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stay and watch the film?

MR. BLOOM: Objection to phrasing.

BY MR. BARTLETT:

Q. Do you remember her testimony Ms. Waters?

A. Yes.

Q. This was the woman that was obsessed with you, obsessed to

the point where she's come in and fabricated the charges

against you, right?

MR. BLOOM: Excuse me, she did not testify -- in fact

the question was: Was she obsessed with you? And she said:

No.

THE COURT: You can redirect if you heard it

differently.

MR. BLOOM: He can't misrepresent.

THE COURT: You can redirect. Ask the question.

BY MR. BARTLETT:

Q. At long as we are talking about this area, I understand

that your testimony today is that Lacey Phillabaum also was

enraged with you?

A. Enraged with me?

Q. Yes.

A. I can't say how any of these people felt. I am not inside

their minds.

Q. You are indicating that they came into court and committed

perjury and are falsely framing you for a very serious
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2454

offense, right?

A. Yes.

Q. And it's your belief that she did that because at some

point in time, you called her "an unprincipled slut?"

A. I don't know why she's doing it. I am just testifying to

the truth of what happened.

Q. I want to talk about Mr. Corrina. You saw him testify?

A. Yes.

Q. Do you know him?

A. Yes.

Q. He's your first cousin?

A. Yes.

Q. And actually, unlike some first cousins, it sounds like

you had quite a bit of contact over the years. You went to

high school with him?

A. He was a little bit older, so we were like one year in

high school.

Q. One year overlap?

A. Yes.

Q. When you made the trip from Dayton, out to what eventually

becomes Olympia, you actually go out of your way to stop by

Greeley, Colorado, and see him and Kara?

A. Yeah, we had lunch together. I don't know if it was out

of my way, but we had lunch one day.

Q. When Mr. Corrina moves to Olympia, he moves in with you?
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A. He didn't move in, they just stayed on the living room

floor until they found their own place.

Q. Eventually they did get their own place, the duplex?

A. Yes.

Q. And at some point you actually move in with them?

A. Well, again, I was staying there. I wasn't really moved

in for good.

Q. They had pretty simple lives; they didn't own a car?

A. No.

Q. Not overly wealthy?

A. No.

Q. There was never any huge blowup where he indicated a huge

hatred for you and Justin?

A. No.

Q. You heard testimony from Lacey Phillabaum, and actually

from Special Agent Halla, talking about Ms. Phillabaum's first

interview on February 21, of 2006; do you remember those

questions and answers?

A. Yes.

Q. On February 21, Lacey Phillabaum came in and identified

you as the lookout?

A. Apparently that's what happened.

Q. And in addition, she indicated that you had got the rental

car and thought it was through an aunt, correct?

A. I think that's what she said, yes.
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Q. And there's only one blood relative of yours in all the

northwest, isn't there, Mr. Corrina? That's the only person

you are related to by blood in this area?

A. I don't know about all throughout the northwest. I think

I have a couple cousins in Portland.

Q. How about the Seattle area?

A. No.

Q. When we eventually find Mr. Corrina, he has records about

one car rental that entire year, 2001, correct?

A. I think so.

Q. And those car records indicate it was for the very weekend

of this arson, correct?

A. Yes.

Q. And his bank records indicate a $200 cash deposit

immediately after the car rental, correct?

A. Yes, I saw that testimony.

Q. The only cash deposit into his account that entire year,

correct?

A. That's what the testimony was.

Q. And you want this jury to believe that Ms. Phillabaum's

statement on February 21, as she's falsely framing you, that

your cousin who rented the car, and it turns out the records

match up exactly, is simply a lucky guess on her part; is that

what you want them to believe?

A. Well, she didn't say my cousin. And I don't know, I don't
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2457

know how that would have happened.

THE COURT: Are you going into another line of

questioning?

MR. BARTLETT: I am.

THE COURT: Then let's take the afternoon recess at

this time.

Leave your books on the chair, and of course don't discuss

the case. I will have you back in here in about 15 minutes.

(Jury not present.)

THE COURT: Let's take the afternoon recess.

THE CLERK: All rise, court is in recess.

(Afternoon recess.)

THE COURT: All right. You may be seated.

We are ready to continue. Bring in the jury.

(Jury present.)

THE COURT: All right. You may be seated.

Mr. Bartlett.

MR. BARTLETT: Thank you, Your Honor.

BY MR. BARTLETT:

Q. Ms. Waters, I wanted to go back to the document we were

talking about earlier in the afternoon, Exhibit 713.

Specifically, I want to look at the calls made to Ocean's

house at Conger. Do you see those?

A. Yes.

Q. I believe you indicated that there were a number of
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2458

individuals that might have received calls from Mr. Rodgers

during the time that you were over there.

Do you remember your answer?

A. Yes.

Q. Can you take a look at what's been also entered into

evidence as Government's Exhibit 714. Do you recognize that

to be a listing of the calls from Bill Rodgers' phone, the

cell phone you got for him, to various locations?

A. Yes.

Q. Looking at that, do you see that the first call that it

goes to, the Conger Street address, appears on June 3rd?

A. Yes.

Q. That would be about one week after the arson, correct?

A. I guess so.

Q. As you look through it, there are a number of calls in

June, July, going on through -- finally, do you see the very

last call -- the call basically on -- around September 13th,

although there are two additional calls after that.

Do you see that?

A. Yes.

Q. As I understand your testimony on direct examination,

around September 13th was when you moved out of the Conger

Street address, correct?

A. I don't remember exactly when it was. I think it was

September or October.
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2459

Q. So wouldn't you agree, looking at this chart, that it

seems to be at least a fair inference that the huge majority

of calls made to Ocean's house on Conger Street were in fact

intended for you?

A. I am sure that many of them were, but like I said, there

were a lot of people there and a lot of people working there,

and Heather was also there even though she didn't live there,

so I really can't say exactly how many of the calls were to

me.

Q. But you do realize that after you moved out, there were

but two very short calls from then on?

A. Sure.

Q. I want to go back to Exhibit 614, the documents that

you've already had a chance to look at with regard to the --

first of all, if you could just pick that up again. Maybe I

didn't get it clear enough. The manila folder that you looked

at --

A. Yes.

Q. -- that is your handwriting inside, correct?

A. Yes, I think so.

Q. If you can take a minute and go through and see if any of

those documents are documents that you sent to Ms. Kolar that

you were going to talk with her about at some point in the

future.

As I understand it, there's three pamphlets called
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2460

"Willful Disobedience, An Anarchist Bimonthly"?

A. You say that I sent to her or that I gave to her?

Q. Sent or gave.

A. Okay.

Q. Are any of those "Willful Disobedience, An Anarchist

Bimonthly" part of the packet that you gave her?

A. No. I don't remember giving her those.

Q. How about any of the other documents in there? Is it your

testimony that not one single page of all of these documents

are any of the things that you gave her?

A. My testimony is that I don't remember giving her any of

these things because I actually don't remember reading these

things. So I don't think I would have given her these things.

It's possible that Justin might have given me things to give

to her. I don't remember.

Q. So it's your testimony that possibly Justin was interested

in passing these things on to Ms. Kolar?

A. It's possible.

Q. But the note is in your handwriting, correct?

A. Yes.

Q. And the note says, these are things you want to talk to

Ms. Kolar about, correct?

A. Yes. But what I said before is that I remember that her

and I had discussions about much different things than are in

these documents here. So I probably would have given her
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2461

something different in this folder.

Q. So sometime between when you gave her that folder and when

she turned over the bucket to her attorney, as she described,

she somehow got rid of your documents and put Justin's

documents in this folder?

MR. BLOOM: Objection, he's asking her to speculate

on what another person did.

THE COURT: Well, I guess he's trying to get it

straight as to what she's saying. Do you understand the

question?

BY MR. BARTLETT:

Q. Is that what you think happened?

A. I don't know. I can't say what happened.

Q. Do you know Bill Rodgers?

A. Yes.

Q. Do you know Justin Solondz?

A. Yes.

Q. Do you know Jennifer Kolar?

A. Yes.

Q. Do you know Lacey Phillabaum?

A. Yes.

Q. Do you know Nathan block, Joyanna Zacher, Joseph Dibee?

A. Yes.

Q. In late December of 2005, when Ms. Kolar calls to name you

as the lookout at the UW arson, it is your belief she's doing
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2462

it because she was a spurned lesbian lover?

Is that what you want this jury to believe?

MR. BLOOM: Objection, calls for speculation as to

why Kolar is doing what she's doing.

THE COURT: You may answer the question, if you

understand it.

A. I understand the question. I don't know why she's doing

what she's doing. She obviously doesn't have very good

memories of anything. I know what happened between us, and I

know that she was probably very scared of facing life in

prison. So I could speculate about why she's doing it, but I

don't actually know because I don't live inside of her head.

BY MR. BARTLETT:

Q. Two months later, Ms. Phillabaum comes in, independently,

and also happens to choose you as the lookout for the UW

arson?

MR. BLOOM: Objection, we don't know. It's a fact

for the jury to find if she came in independently.

THE COURT: She can answer the question, if she

understands it.

BY MR. BARTLETT:

Q. Is that your testimony?

A. I am sorry, what's the question?

Q. That two months later, Lacey Phillabaum comes in and

independently names you as the lookout?
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2463

MR. BLOOM: I object to the form of that question.

THE COURT: Well, your objection is noted.

MR. BLOOM: I don't want it noted. I want it

sustained.

THE COURT: It's overruled. If you understand the

question, answer it.

A. I don't know that that's what happened. I wasn't there.

BY MR. BARTLETT:

Q. And the quotation of yours in the New York Times isn't

this quotation?

A. No, I didn't say that. I said, I don't remember saying

that.

Q. And the articles that appear at 614 aren't your articles?

A. No, these aren't my articles.

Q. And the rental car records that Mr. Corrina described are

simply his misremembering what was occurring during the

weekend of May 20th and 21st?

A. Would you like me to speculate about why he's saying the

things that he said?

Q. I am asking you, it's your testimony that it has nothing

to do with the University of Washington arson, those rental

records, it was merely a coincidence?

A. Rob is obviously really scared, and he's making up a lot

of things.

Q. You never took the wireless phone ever, that never
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2464

happened?

A. I think that he's confusing that with the time that I went

to the hospital in January of 2002.

Q. So in January of 2002 when you went to the hospital, you

did take his wireless phone?

A. I have a vague memory that that may have happened, but I

am not sure. I am not positive.

MR. BARTLETT: No further questions.

MR. BLOOM: I have some questions, if I may.

REDIRECT EXAMINATION

BY MR. BLOOM:

Q. Ralph's Thriftway, you indicated that you shopped there on

some occasions; is that correct?

A. Yes.

Q. Did you ever go there and shop with cash?

A. Oh, yes. I didn't always use my card. I think I tried

not to use my debit card because they charge every time you

use a debit card; at least that's what I remember. So I am

sure I used cash a lot of the times that I went shopping.

Q. Other than Bill Rodgers living -- Bill Rodgers is

deceased; is that correct?

A. Yes.

Q. And when you learned about that, how did you feel about

that?

A. It was sad to learn that he was deceased.
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2465

Q. You indicated that he was a depressed person; is that

correct?

A. Yes.

Q. And you learned that he had taken his own life?

A. Yes.

Q. Was that consistent to you with a person who was in

depression?

A. Yes, I wasn't surprised. He actually talked about that

with me before, about suicide.

Q. Did he have conversations with you about how he was

feeling in life?

A. Yes. He was really lonely. He was obsessed with not

having a girlfriend. He really wanted a partner, and he

talked to me a lot about that.

Q. Did he ever try to get connected with you, hit on you?

A. No, not that I knew of.

Q. Now, on the east side of Olympia, did you say Anthea,

Anthea Lawrence and Lawson Dumbeck lived there as well?

A. Yes, they lived close to there.

Q. Did you spend time with them from time to time?

A. Yes. I babysat for their daughter and I also took violin

lessons, fiddle lessons, because I played the violin, but then

I learned the Irish fiddle when I moved to Olympia. So she's

the first one that taught me a lot of tunes. So I spent a

considerable amount of time over at their house.
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2466

Q. Would that take you near Ralph's Thriftway?

A. Yes.

Q. Now, you said band practice was over in that area?

A. Yes.

Q. Could you give us the name of a person who was in the

band, if you remember?

A. Well, I know the people's first names. I am not

remembering their last names.

Q. Was that anywhere near Ralph's Thriftway?

A. Yes, that was also near that store.

Q. I notice that when Mr. Bartlett asked you about Ralph's

Thriftway, he asked you about how many times you were there.

He asked you about Rodgers. He never once asked you, did he,

this afternoon, you were at Ralph's Thriftway at 12 minutes

after 7:00 when Lacey says you were in Seattle.

Did you hear him asking any of those questions?

A. No, I don't think so.

Q. Now, he asked you some questions about Plum Creek and the

office, going into the Wells Fargo building in Seattle?

A. Yes.

Q. Do you remember answering that there's footage of that in

your video?

A. Yes.

MR. BLOOM: I offer Exhibit A-169, the door having

been opened, the video that depicts those events.
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2467

THE COURT: Same answer. Same ruling.

MR. BLOOM: The door has now been opened.

THE COURT: Same ruling.

BY MR. BLOOM:

Q. Mr. Bartlett read from a pleading, a document filed by

Mr. Fox and myself back in March of 2007, about 11 months ago.

Do you remember his reading --

A. Yes.

Q. -- some of that. I am going to read you the entire

paragraph --

MR. BARTLETT: Objection, Your Honor.

MR. BLOOM: The rule of completeness.

MR. BARTLETT: Objection, Your Honor. The only thing

I asked about was their position compared to how serious the

University of Washington arson was. That's the only thing I

asked about --

THE COURT: You may deal with that issue. That

wasn't the issue -- I don't believe it's offered --

MR. BLOOM: He read from part -- it's not. He read

from part of the paragraph. I can read the whole thing. I

can read the paragraph.

THE COURT: Just a minute.

MR. BARTLETT: I would like to have this outside the

presence of the jury.

THE COURT: Do I need to have this outside the
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2468

presence of the jury?

MR. BARTLETT: Yes.

THE COURT: All right. Leave your books on your

chair and I will have you back here.

(Jury not present.)

THE COURT: All right. There's an objection. Let me

hear that.

MR. BARTLETT: Your Honor, the objection is that the

rest of the paragraph is irrelevant, has a number of items

that this jury should never hear under 403 or any other

analysis.

The only thing relevant in that is the Defendant's

statement through her agents on how serious the University of

Washington. That statement is complete. The rest of it with

regard to what the possible sentences are and what might

happen in the State of Washington is absolutely irrelevant.

THE COURT: All right. Mr. Bloom, let me hear from

you.

MR. BLOOM: This statement is not complete. The

thrust of this, which was written eloquently I believe by

Mr. Fox, talks about -- what the motion is, is a motion that I

think -- as I remember, the Court denied Defendant Waters'

motion to dismiss Counts 5 and 6 based on the commerce clause

and the 10th Amendment.

The motion, which of course the witness -- the Defendant
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2469

never saw -- in the motion, one of the things that Mr. Fox,

the point he's making in this paragraph is that this is a

crime -- assuming it was committed -- this is a crime that did

not injure anybody, was not intended to injure anybody, was a

misguided act by those who wanted to preserve the Earth, and

the whole point -- it's not telling the jury the whole point

of why -- even if it's attributable, and that's apparently the

thrust of what these prosecutors want to do, attribute these

words to our client, it explains -- it's necessary to

understand the context.

Now, what it is about is a claim that to bring this charge

in federal court with Draconian consequences is simply an

effort to put people in a position -- here we go, the last

sentence of that paragraph: "Yet, the threat of such an

excessive sentence is being utilized by the government to

coerce guilty pleas and so-called 'cooperation' agreements by

former political activists who fear spending the rest of their

lives in prison."

The point is that Mr. Fox was pointing out that this is a

crime that indeed did not injure anybody and so on, the part

that was read by the prosecutor, but it has to be in context.

It's not like -- first of all, it's not attributable to

our client, but secondly we're not saying this was not a

crime. We are saying that if this were prosecuted where it

should be prosecuted, in the state court, instead of a person
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2470

facing a 35-year mandatory minimum, the sentence prescribed by

the State Court is somewhere between 21 and 27 months,

approximately two years, compared to 35 years.

That's why it was phrased the way it was. To keep the

jury from knowing that, to let them hear just what he read,

would be a continuation of slamming us and not letting the

jury hear the whole picture. I don't like it. It's not

right. It's not fair.

THE COURT: Tell me what you are pointing at here

that would make that complete.

MR. BLOOM: That paragraph, beginning with -- on page

3, "somehow this offense," ending with "lives in prison," that

one paragraph, a third of which has already -- a quarter of

which has been presented to the jury.

THE COURT: All right. Your comments to that?

MR. BARTLETT: First off, Your Honor, with regard to

the legal analysis, it is without question that a filing by a

defense attorney is an agent's admission on behalf of their

party. So there's no question that statements --

THE COURT: The issue seems to be about completeness.

MR. BARTLETT: Your Honor, with regard to

completeness it is -- first of all, the United States is in a

different position. We are the party-opponent. Therefore,

what appears in this motion are admissions by a

party-opponent. It is not hearsay for us. We are not
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2471

offering the paragraph. What we are trying to do is impeach

this witness's credibility with a specific statement.

The entire paragraph is utterly irrelevant under 403. It

is utterly irrelevant as to why this statement is in here.

The only relevance of this paragraph is that it appeared, from

my hearing of her direct testimony, that she had changed her

position with regard to how serious the University of

Washington is.

That's exactly what Mr. Bloom did time and time again,

trying to impeach a witness with a prior inconsistent

statement. This statement in this motion, just that

statement, is a prior inconsistent statement by a witness.

That is why it was introduced. Why it appeared in this motion

is utterly irrelevant.

The Court has already ruled that this is not a relevant

argument and the jury should not be prejudiced and blackened

by all of the -- basically by the argument that's already been

rejected by the Court.

THE COURT: Point me to where this goes to a prior

inconsistent statement.

MR. BARTLETT: She talked about how serious and

horrible the University of Washington arson was. During his

cross-examination, he actually described it as just horrible,

horrible. But when you read this, I would suggest a fair

reading of this statement is: "It's an act which did not
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2472

injure anybody, basically property crime, which did not intend

to injure anybody, and which at most was a misguided act by

those desperate to preserve the Earth against corporate

onslaughts."

That isn't a horrible crime. That's basically a property

crime committed by people who have a good heart. That's a

different position, Your Honor, and I am able to point that

out to the jury.

THE COURT: What I am reading here is that, to start

at the beginning of the sentence, it says "35 years in prison

for an act which did not injure anybody, which was not

intended to injure anybody, and which, at most, was a

misguided act by those desperate to preserve the Earth against

corporate onslaughts, is far outside the pale of humaneness

and rationality."

It talks about folks outside. It doesn't seem to say it

was her, necessarily.

MR. BARTLETT: Well, it's her position, Your Honor,

which --

THE COURT: I understand what you are saying it's her

position. I am talking about now in terms of completeness as

to what is being said in that paragraph, and that's what they

are talking about.

MR. BARTLETT: It is, Your Honor.

THE COURT: Okay. In all fairness, I think we ought
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2473

to hear the whole thing.

MR. BARTLETT: The whole paragraph or the whole

sentence?

THE COURT: That whole sentence, and I think that's

what -- I think that says it. What I read says exactly how it

was expressed here. I don't think we need to go into the

argument as to Count 5 and 6. But as to this thing, talking

about, I guess, how unfair, if you will, and facing this term

of imprisonment or this act by other folks, that's what I am

gathering from that, not necessarily to say she has to adopt

this in something different and contrary.

I am saying this whole sentence can be read as to starting

with "35 years" and ending in "rationality".

MR. BARTLETT: Okay, Your Honor.

MR. BLOOM: Starting with "35".

THE COURT: Starting with "35" and ending at

"rationality". You can read that whole -- because that's what

we are talking about here in terms of changing her view.

MR. BLOOM: That's all I will read.

THE COURT: Bring them in.

(Jury present.)

THE COURT: All right. You may be seated.

MR. BLOOM: After the Court's ruling, may I read that

one sentence?

THE COURT: You may.
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2474

BY MR. BLOOM:

Q. We were talking, Ms. Waters, about cross-examination by

Mr. Bartlett a little while ago where he read you some portion

of a pleading that was filed by Mr. Fox and myself on your

behalf.

Do you remember that?

A. Yes.

Q. Let me just read you one sentence from that pleading. "35

years in prison for an act which did not injure anybody, which

was not intended to injure anybody, and which, at most, was a

misguided act by those desperate to preserve the Earth against

corporate onslaughts, is far outside the pale of humaneness

and rationality."

Now, let me ask you a question, did you participate in

writing any of this pleading or any other of the many

pleadings that we filed?

A. No. Like I said to Mr. Bartlett, this case has taken up a

lot of my time, but any time that's not spent meeting with you

and working, I spend with my daughter. So I have told you

that as little as possible, time wise, is what I need to be

able to be with my daughter. So no, I haven't participated in

writing any of the pleadings.

Q. So did you preapprove the wording that was in that

document?

A. No. Actually -- of course, I think that often you will
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2475

send me things that you wrote, but I often don't have time to

read through all of it, unfortunately.

Q. Well, thanks a lot.

A. Sorry. I appreciate it anyway.

Q. Having read that, I guess the thrust of Mr. Bartlett's

question is, do you feel, personally feel, that this arson

that was committed by Lacey Phillabaum and committed by

Jennifer Kolar, do you feel this was a minor, petty,

meaningless crime?

A. No. I think that it was -- like I said, I think it was

very serious and unspeakably horrible for the people who were

affected.

Q. You have come to understand, from the evidence in this

trial, that Ms. Kolar is a person who's admitted to at least

four arsons?

MR. BARTLETT: Objection, Your Honor, it goes beyond

the scope of cross-examination.

THE COURT: I think so.

BY MR. BLOOM:

Q. Now, there were some questions about -- there was a class

full of students here, I guess last Friday.

Do you remember those questions by Mr. Bartlett?

A. Yes.

Q. Have you been choreographing who shows up in this

courtroom?
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2476

A. I would be amazed if I had any time to do such things. I

can barely feed myself and take care of my daughter and sleep

enough during all of this.

Q. Where are you living during this trial?

A. We have rented a house in the Proctor area of Tacoma.

Q. And how do you spend your time, other than when you are

not in court?

A. Just spending time with my daughter, who's not at all

happy with me being away so much because she's used to me

being home during the daytime, because I usually teach and

have gigs in the evening.

So as soon as I walk in the door, she's like Velcro. I

can't really do too much more except be with her and have

dinner and get her ready for bed.

Q. Has this been, just logistically, an easy time or a

difficult time just since you've been up here in Tacoma and

since the trial began?

A. It's been very difficult.

Q. Are you paying rent in this place where you are living?

A. Yes, we are.

Q. Have you had to scrape around to get the money to rent the

place?

A. Yes. Thankfully, there have been friends and people who

have donated to help us able to afford to be here.

Q. Now, Mr. Bartlett showed you two exhibits dealing with
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2477

telephone calls from Mr. Rodgers, apparently many of which

were to you?

A. Yes.

Q. You understand that on those two exhibits, at the top of

the exhibits, it indicates that the period of the phone calls

is an entire year, January 1 of 2001 to the last day of the

year, December 31?

A. Yes, that's correct.

Q. Did you notice that?

A. Yes.

Q. So he was talking about something like 50 or 55 phone

calls in the period of a year; is that correct?

A. Yes.

Q. That's maybe one a week, right?

A. Yes.

Q. Did it seem like a lot of calls, one a week?

A. No.

Q. This was a lonely guy who was leaning on you, is that fair

to say?

A. That's fair to say.

Q. You have heard testimony here that when Mr. Rodgers' home

and store was raided by the FBI -- let me take that back, were

searched by the FBI on December 7th of '05, you've heard that

there were thousands, thousands upon thousands of pages of

documents seized?
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2478

A. Yes.

Q. Including hard disks, hard drives?

A. Yes.

Q. You've heard testimony, have you not, that of all the

material, there's one mention of you, one, and that's a

reference to a Watch Mountain video?

A. Yes, that's what I heard.

Q. Did you hear Ms. Troxel when she testified, did you hear

her use the phrase "grasping at straws"?

MR. BARTLETT: Objection, Your Honor, argumentative

and goes beyond the scope of cross.

THE COURT: I think so. It's been covered. You can

say what you need to say about it. She was here. Everybody

heard it.

MR. BLOOM: Fair enough.

BY MR. BLOOM:

Q. Now, Justin Solondz' mother, did you come to know her

during the time that you were in a relationship with her son?

A. A little bit, yeah.

Q. Did you become friends?

A. Yes.

Q. Were you surprised to see her here?

A. Well, I didn't know she was coming, so I was a little bit

surprised. I think she lives in New Jersey, so I was a little

bit surprised, but it makes sense that she would want to be
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2479

here.

Q. There's been testimony about her son; is that correct?

A. That's correct.

Q. And did she develop a relationship with you while you were

relating to her son?

A. Yes.

Q. Do you have a friendly relationship?

A. Yes, we do.

Q. When Mr. Bartlett uses the term "fugitive", what is your

understanding -- now, people were arrested, as you've heard,

on December 7th of '05.

What is your understanding about when Justin Solondz took

a trip outside the country any time prior to that?

A. He left -- he told me he was leaving, I believe, in

October.

Q. Of what year?

A. 2005.

Q. Now, there was some further questions about Mr. Dibee

making phone calls to, I think it would be, the Corrina number

in October of 2001?

A. Yes.

Q. Mr. Bartlett himself prefaced this question by saying

there are hundreds of pages of calls. And here are two calls,

each of which is a minute.

Do you remember speaking to Mr. Dibee in that period?
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A. No, I don't.

Q. You've had -- you now have a cell phone, right?

A. Yes.

Q. And you also have a land line, or at least at home?

A. At home.

Q. At home in Oakland, you do?

A. Yes.

Q. Is it correct to say that even if you dial a wrong number

or get an answering machine, you get charged for at least a

minute, right?

A. I think so, yeah.

Q. There's no charge for like four seconds; you have to be

charged for at least a minute?

A. Right.

Q. About these articles, you've heard testimony from the

woman from Washington, the fingerprint expert, you heard her

testimony?

A. Yes.

Q. And you heard her testimony that on all the articles she

looked at -- I think it was approximately 80, maybe 70, but

that many articles -- that your fingerprint did not appear on

a single article?

A. Yes.

Q. Now, is it fair to say you don't know what, if anything,

Ms. Kolar did with whatever it was that you sent to her?
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A. Yeah, I don't know what happened. I don't know what she

did with anything.

Q. So when she turned over, through her lawyer, turned over

articles to the prosecution, you don't know whether or not she

intentionally put inflammatory articles in the folder, do you?

A. No, I don't know.

Q. Well, you do know that she's lying about you participating

in the arson, right?

MR. BARTLETT: Objection, Your Honor, this is just

argument.

THE COURT: This is argument. I think she's answered

this once before, so we are just going through the same thing

all over again.

BY MR. BLOOM:

Q. Given that you know that she's lying about you, about the

arson, would it surprise you that she would want to nail you

further?

MR. BARTLETT: Objection, Your Honor, this is just

argument.

THE COURT: That's argument. Any other questions on

redirect?

MR. BLOOM: Yes, I do have some other questions.

BY MR. BLOOM:

Q. Now, Mr. Bartlett asked you questions about Jennifer Kolar

and he prefaced his question by saying Jennifer Kolar has and
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had boyfriends, correct?

A. That's correct.

Q. Did we ever show you an exhibit, Exhibit A-203, wherein

Ms. Kolar describes in an e-mail to a friend of hers, whose

e-mail address is redmango7, a description of how Ms. Kolar

was talking about approaching a particular woman to ask her

out?

A. Yes, I have seen that.

MR. BLOOM: It's A-203. I would offer it into

evidence.

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-203 admitted.)

BY MR. BLOOM:

Q. I am going to read from it. This is dated October of

1999.

MR. BARTLETT: Objection, Your Honor, the e-mail

speaks for itself. He can make argument during closing. The

e-mail speaks for itself. He doesn't have to read it.

MR. BLOOM: I don't have to, but I want to. Kit's in

evidence.

THE COURT: You can publish it.

BY MR. BLOOM:

Q. I am reading from toward the bottom where Ms. Kolar wrote:

"So...I am not going out with anyone...proud of me? Things
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fell apart with Gary. I should have expected it. He was just

not ready to jump right into another relationship.. so..we

are doing okay at work..as we all work together...Joe is

becoming a much better boyfriend as an ex than he ever was

before -- funny...so there is still that connection...but it

is simpler."

Continuing, "Actually..last night I went to a pumpkin

carving party and became obsessed with this woman thereJessica- who I literally could not stop staring at all

night...which I think she very much noticed. She was the only

person I talked to besides my friend Alison, who the party was

at..anyhow..she works in Fremont (where I live) at a coffee

house here - so I am planning on going by there today on my

way to work and seeing if I can see her - if I have the guts

to ask her out."

Do you remember us showing you this document?

A. Yes.

Q. Did we have a discussion about the event that took place

between you and Jennifer Kolar, the event where she gave you

the necklace?

A. Yes.

Q. By the way, I don't know if I asked you this and I meant

to, did you keep the necklace, or did you give it back to her?

A. I ended up giving it back.

Q. Mr. Bartlett asked you some questions about Mr. Corrina.
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After Agent Halla came to you, came to your home in Berkeley

on February 24th, two years ago, did you contact people, your

friends, your family members, to tell them anything?

A. Yes, I wanted to let people know what was going on.

Q. Did you indicate to them one way or another whether they

could expect or might expect to be approached by the FBI?

A. I said that they might be. I said that they might be,

especially if I had lived with them, that they might be

questioned.

Q. Do you expressly have a recollection of contacting

Mr. Corrina to tell him that information?

A. Yes, I did.

Q. What did you tell Mr. Corrina?

A. Well, I just told him that -- what was going on and that

he might be visited by the FBI, and I told him not to worry

about it, that I didn't do anything, I am innocent and just

tell the truth.

Q. Did you ask him to lie?

A. No, I didn't.

Q. Did you ask him to -- if he was shown a picture of you, to

say that he doesn't know you?

A. No, I didn't say anything like that.

Q. Lacey Phillabaum, Mr. Bartlett asked you some questions

about Lacey Phillabaum and about a car. Do you remember

hearing at this trial and/or seeing any documents that Lacey
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said that you were going to ask an older woman to rent a car

for you?

A. Yes.

Q. Is Kara Larson an older woman?

A. No, I think she's a little bit younger than me.

Q. That you were supposedly going to ask an aunt to rent a

car, do you remember testimony and statements to that effect?

A. Yes.

Q. Is Kara Larson an aunt?

A. No.

Q. Now, Mr. Bartlett asked you some questions about -- to the

effect of -- he used the word "independently", that Lacey

Phillabaum and Jennifer Kolar independently named you.

Do you remember those questions, and I objected?

A. Yes.

Q. Now, do you remember that evidence was introduced when

Agent Torres testified that his notes of the February 21st

interview of Lacey Phillabaum, he calls her "Lacey" and he

calls her lawyer "Pete".

Do you remember that?

A. Yes.

Q. Does that strike you as somebody who had had prior

dealings with those people?

MR. BARTLETT: Objection, Your Honor, it's argument.

THE COURT: That's argumentative. How would she know
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that? Next question.

BY MR. BLOOM:

Q. Now, did there come a time during the testimony that you

learned from Robert Corrina that apparently Agent Halla had

given a certain factual piece of information to Kara Larson on

January 19th of '07, when he went to Kara Larson's place of

work.

Do you remember that?

A. Yes.

Q. Do you remember hearing that he, Agent Halla, told Kara

Larson that, we believe that the car you rented was used in

the arson, words to that effect?

A. Yes.

Q. To you, was that giving information to a possible witness?

A. Yes.

Q. Did there come a time when you, as a potential possible

witness, if you were going to cooperate, were given a lot of

information about what the Government's theory was?

MR. BARTLETT: Objection, Your Honor.

THE COURT: I am going to sustain the objection. I

think we've dealt with this issue, and I think it might be in

an area where the Court has ruled.

MR. BLOOM: He's opened the door at this point.

THE COURT: I am saying, whatever ruling I made on it

will stand.
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MR. BLOOM: Okay. Okay.

BY MR. BLOOM:

Q. Now, this is Exhibit A-212. I asked you a few minutes ago

if you remember being questioned by Mr. Bartlett this

afternoon about the Ralph's Thriftway transaction.

A. Yes.

Q. Do you remember those questions?

A. Yes.

Q. And in fact, is it your recollection that what you were

asked about was whether or not Mr. Rodgers lived near the

Ralph's Thriftway?

A. Yes.

Q. Take a look, if you would, right there. Is that 7:12

p.m.?

A. Yes.

Q. Is that May 20th?

A. Yes.

Q. Can you think of any reason Mr. Bartlett didn't ask you a

single question about being in Olympia at Ralph's Thriftway at

that time on Sunday night?

Can you think of a single reason he didn't ask you that

question?

MR. BARTLETT: Objection, Your Honor. It's

argumentative and asks her to speculate what's going on in my

head.
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THE COURT: I think so.

BY MR. BLOOM:

Q. Now, you've testified that you don't actually remember

that transaction; is that correct?

A. That's correct.

Q. Now, if you were going to lie to the jury, is it fair to

say: Oh, I remember that. Of course I was there.

MR. BARTLETT: Objection, Your Honor, it's just

argument.

THE COURT: It's argumentative. She said she doesn't

remember it.

BY MR. BLOOM:

Q. Now, did you come -- was there some time on the weekend

that you now know you heard that Rob and Kara rented a car?

We talked about that weekend?

A. Right.

Q. Now, did there come a time on that weekend, as you

remember it, that Justin actually did bring some things of

yours that had been at Rob and Kara's to your place, to

Ocean's place?

A. Well, I remember that I asked Justin to pick up some

things for me after Rob had been asking me to get some things,

and he did do that.

Q. Now, were you -- did some things show up at your house

that were in Ocean's garage?
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MR. BARTLETT: Objection, Your Honor, it's way beyond

the scope of cross-examination.

THE COURT: I think so, and we've covered this. You

are going far afield now in terms of this redirect.

MR. BLOOM: Well, he asked about the car and I am

addressing the car issue.

THE COURT: Well, then let me hear something about

the car issue.

MR. BLOOM: Sure. I am just asking a preliminary

question.

THE COURT: Well, just ask the question.

MR. BLOOM: I will. I can't just jump into it. I

have to --

THE COURT: Mr. Bloom, we go through this every time

I make a ruling here. So would you please get to the next

question.

MR. BLOOM: Sure.

BY MR. BLOOM:

Q. Were you home -- let me withdraw that.

Did there come a time when you found a couple of your

boxes in your garage?

A. Yes.

Q. Boxes that had been at Rob and Kara's?

A. Yes, I remember Justin brought over some things.

Q. Do you know -- were you present when he brought them?
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A. I don't think so. I mean, I have a pretty vague memory of

this. It wasn't a major event. But yeah, I remember him

bringing over some things to my place.

Q. Now, you have come to learn that Justin's car was not

available that weekend; is that correct?

A. That's correct.

Q. So do you know, or does that help you piece together,

whether or not Justin used the Rob and Kara rental car to

bring the things to your house?

MR. BARTLETT: Objection, Your Honor. Mr. Bloom is

testifying. He's trying to put items into evidence that have

not been admitted.

THE COURT: Sustained. Next question.

MR. BLOOM: Excuse me, one second.

I don't have any further questions.

RECROSS-EXAMINATION

BY MR. BARTLETT:

Q. Ms. Waters, during his redirect examination, Mr. Bloom

asked you some questions about a phone call that you made to

Mr. Corrina.

Do you remember those questions?

A. Yes.

Q. It was the phone call where you told him: I'm innocent.

If anybody in law enforcement comes, you should tell them the

truth.
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Do you remember that phone call?

A. Yes.

Q. Do you remember those questions?

A. Yes.

Q. On February 24th of 2006, Special Agent Halla came to your

house --

A. Yes.

Q. -- correct? And you talked to him?

A. Yes.

Q. It lasted, what, 15 to 20 minutes?

A. I think it was maybe a little bit -- yeah, probably about

that.

Q. About 15 to 20 minutes?

MR. BLOOM: Excuse me, I am going to object. I don't

think that I raised anything about that visit.

MR. BARTLETT: Absolutely, he did. That's the

context of --

THE COURT: Is it about after the visit that she made

the phone call?

MR. BLOOM: After the visit.

THE COURT: Let's get the question out on the table

there.

BY MR. BARTLETT:

Q. During that -- I did not hear your answer. How long do

you think Special Agent Halla was there?
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A. It was probably around 15 to 20 minutes.

Q. And during that entire 20-minute conversation, did you

ever once turn to Special Agent Halla and say, I am totally

innocent of this arson you are accusing me of?

MR. BLOOM: Given the rulings of the Court, I really

must object to that. You know what, I withdraw it. I don't

object. I don't object.

BY MR. BARTLETT:

Q. Did you ever say that to Special Agent Halla?

A. I did.

Q. You are certain about that?

A. Yes. I told him that I was not involved, and I am sure he

remembers that.

Q. With regard to the phone call to your cousin, that call

did not occur for several months, correct?

A. I think it was a couple weeks after.

Q. Several months. Actually, what happened is that you had

attorneys -- you indicated you had Mr. Avenia for a while?

A. Yes.

Q. And then eventually you had Mr. Bloom?

A. Yes.

Q. And after you were represented by Mr. Bloom, that's when

you decided to make your call and tell Mr. Corrina that you

were innocent and they should tell the truth, correct?

A. Well, I actually technically retained Mr. Bloom --
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2493

Q. Correct.

A. -- but we had a lot of conversations and he was -- we were

having meetings even before I retained him.

Q. You never called Mr. Corrina before that -- that call was

several months after the February 24th visit, correct?

A. I think it was actually just a few weeks after that was my

memory.

MR. BARTLETT: No further questions.

THE COURT: All right.

REDIRECT EXAMINATION

BY MR. BLOOM:

Q. Is there any doubt in your mind that's what you said to

him: I'm innocent. Tell the truth?

A. No, that's what I remember saying.

Q. Did you tell the truth?

A. Of course.

Q. Did you have any problem with the truth?

A. No.

Q. Can you handle the truth?

MR. BLOOM: Thanks. I have no further questions.

THE COURT: All right. You may step down.

THE WITNESS: Should I just leave all these things up

here?

THE COURT: Just leave them. All right.

MR. BARTLETT: I believe we are going to have brief
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2494

rebuttal tomorrow morning, Your Honor.

MR. BLOOM: Well, we rest now.

THE COURT: You are resting?

MR. BLOOM: Yes, sir.

THE COURT: All right. Then I guess you are going to

get a 20 minute early jump on going home.

Let me ask this question: Timewise, how much rebuttal are

we talking?

MR. BARTLETT: Less than an hour, Your Honor.

THE COURT: Let me have you step out just for a

minute, then I will have you back.

(Jury not present.)

THE COURT: All right. You may be seated.

What I would like to discuss with you is, I think we are

thinking about another hour, which means that rather than

having a lot of down time with this jury, I am concerned now

about a starting time and taking maybe the witnesses at a

later time and getting you folks to hang around and start an

initial process on some instructions here.

Does anybody want to be heard on that?

MR. BARTLETT: I think that's a great idea. It's not

the normal case. There's actually some jury instructions that

kind of present more of an issue than normal. I would like to

see what the Court is going to propose.

Is the Court planning on summing up tomorrow?
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THE COURT: Well, yes, I want to keep working. What

I am concerned about is having you folks -- let these folks go

home now and a time for them to come back because I want to

give you an initial set of instructions for you to look over

so we can take some comments, and I will tell you how we are

going to do that, before we settle out on what the final

instructions are going to be. So I want to give the jury a

time to come back here when they can start hearing this.

I think I will have them come back here say around 10:00,

and that way, I can have you hear at 8:30 and we can do some

work. I want you to hang around tonight and do some more work

and then we are going to get this thing to the jury.

Okay. Bring them in.

(Jury present.)

THE COURT: All right. You may be seated.

All right. Ladies and gentlemen of the jury, I am going

to have you folks come back to get the rest of the testimony

at 10:00 tomorrow, rather than be here at 9:00.

As you go about your business, don't discuss the case,

research anything or do anything. Everything you need to

decide the case, as you heard me say, you receive here in this

courtroom.

I want you to have a good night's sleep and leave your

books on the chair, and I will see you back here hopefully

ready to go at 10:00.
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2496

(Jury not present.)

THE COURT: Okay. You may be seated.

What I would like for the attorneys to do, and your

clients to do, hopefully by 4:30, I hope to have an initial

set of instructions that I want you to look through, take home

tonight and we'll take that up at 8:30 in the morning,

whatever you are going to do on that.

So I want you to come back around 4:30, and I will give

you that.

MR. FOX: Ms. Waters can go?

THE COURT: I don't know if you want her here.

Nothing is going to happen, except I want you to receive the

packet and take it home to do that. She doesn't need to sit

here to do that.

MR. FOX: Before we recess for the instructions, may

I be heard on one matter, Your Honor?

Based upon Mr. Bartlett's questions of Ms. Waters, I

believe that he's probable going to call Agent Halla tomorrow

to testify that --

THE COURT: I don't know. Before you make an

argument and waste a lot of time, maybe he'll tell us who he's

going to call tomorrow in terms of rebuttal.

MR. BARTLETT: Your Honor, honestly, I have to talk

to Mr. Friedman. I think we have one witness coming in, and

there's a chance we are calling Special Agent Halla.
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2497

Actually, at this point I am unclear.

THE COURT: But Mr. Halla will probably be one of

them? All right. Go ahead.

MR. FOX: Well, if the Government plans on calling

Agent Halla to testify that his memory is that Ms. Waters did

not deny anything and that she remained silent, we would

object to that testimony.

We believe that we raised this prior to trial and the

Government testified they would not be offering any evidence

of what took place at that meeting between Ms. Waters and

Agent Halla, other than I told her there's a case, you should

get a lawyer, we want you to cooperate.

We were very careful in our presentation of Ms. Waters'

direct testimony not to talk about very much in the way of the

substance of what took place in that meeting, particularly the

fact that Ms. Waters, in fact, freely acknowledged that she

knew Mr. Rodgers, didn't try to hide anything.

But for the Government then to violate what it said

earlier it was not going to do through a question on

cross-examination for the purpose of calling Agent Halla to

rebut that, to impeach that, that's improper. They set this

up. They told us they weren't going to introduce any evidence

of Ms. Waters' silence, although she does not remember her

remaining silent, but they can't create that to impeach it.

So we would ask that Agent Halla not testify about that
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2498

conversation.

That's improper. It violates what they said they were not

going to do, and they can't create that by violating their own

promise to set that situation up. So I would object --

THE COURT: I hear what you are saying. Let him

respond to that.

MR. BARTLETT: Your Honor, I am looking at the

response that we filed, and what we responded to is that we

did not intend to do so during our case-in-chief, and we have

not violated that, and we'll talk it over tonight, and I will

call Mr. Fox before 7:00.

THE COURT: You understand what he's saying? He's

saying that you raised this issue and now you want to rebut

this issue. Okay. We'll deal with that before he's called.

I will give you an answer to that. I assume it may be

somebody else in terms of rebuttal on some other issue?

MR. BARTLETT: Yes, Your Honor.

MR. BLOOM: Could we be informed sometime this

evening about who that would be?

THE COURT: I would think so. You should be given it

the same way I have done all the way through the trial, and I

expect that.

MR. BLOOM: I also wanted to ask the Court, if we'll

have an hour's worth of testimony tomorrow, I would wonder

what the Court has in mind for when we would give closing
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2499

arguments.

THE COURT: Well, that's why I am giving you

instructions tonight. I want to get to it as soon as we can.

MR. BLOOM: Given that it's a three-week trial, I

would ask that no matter what we do tomorrow, the closing

arguments be on Friday.

THE COURT: I will listen to what you have to say. I

will look at the timeframe. Like I say, I wanted to try to

give the Government a full day's work, if I can.

MR. BARTLETT: Just for my own edification, I thought

the Court was not going to have session on Friday.

THE COURT: Yes. I cleared Friday. I see no reason

why we can't finish this case up this week. It seems like

that's the best way to go, and I want to try to do it in a way

that's not disjointed in any way.

I will talk to you in the morning, because the other thing

I want to talk to you about is closing. By that, I mean

time-wise. I will hear from you tomorrow about that, as to

how much time I am going to allow you.

If you think you need to practice or do some things in the

mirror, this would be a good time to think about some of that.

All right. We'll be in recess.

THE CLERK: All rise. Court is in recess.

(The Court recessed to Thursday, February 28, 2008,

at the hour of 9:00 a.m.)
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12

13

14

15

16

17

18

19

20

21

22

23

24

25

2500

* * * * *

C E R T I F I C A T E

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/S/ Teri Hendrix __________ May 5, 2008

Teri Hendrix, Court Reporter Date