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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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

)

Plaintiff, ) Tacoma, Washington

) February 26, 2008

vs. )

)

BRIANA WATERS, ) VOLUME 11

)

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

ANTHONY TORRES - CONTINUED

Direct Continued by Mr. Bloom................... 2088

Cross by Mr. Bartlett........................... 2168

Redirect by Mr. Bloom........................... 2178

HEATHER MOORE

Direct by Mr. Fox............................... 2184

Cross by Mr. Friedman........................... 2195

Redirect by Mr. Fox............................. 2202

JAMES DAWSON

Direct by Mr. Bloom............................. 2203

Cross by Mr. Bartlett........................... 2206

JULIE FRANK

Direct by Mr. Bloom............................. 2213

Cross by Mr. Friedman........................... 2216

GREGORY LADUE-GROVE

Direct by Mr. Bloom............................. 2221

SARAH WALD

Direct by Mr. Bloom............................. 2226

DIANA WRUBEL

Direct by Mr. Bloom............................. 2234

JAY DOANE

Direct by Mr. Bloom............................. 2243

LAWSON DUMBECK

Direct by Mr. Bloom............................. 2246
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I N D E X

INDEX OF WITNESSES

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

WITNESS ON BEHALF OF DEFENDANT: Page

LAURIE MEEKER

Direct by Mr. Bloom............................. 2255

Cross by Mr. Bartlett........................... 2262

GARY VARNELL

Direct by Mr. Bloom............................. 2262

Cross by Mr. Bartlett........................... 2273

INDEX - EXHIBITS

EXHIBITS Page

No. A-114 2131

No. 1114 2171

No. 1117 2175

No. 732 2197
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TUESDAY, FEBRUARY 26, 2008 - 9:00 A.M.

* * *

(Jury not present.)

THE CLERK: This is in the matter of United States of

America versus Briana Waters, CR05-5828FDB.

Would counsel please make their appearance for the record?

MR. FRIEDMAN: Good morning, Your Honor. Andrew

Friedman and Mark Bartlett for the United States.

MR. FOX: Good morning. Neil Fox and Robert Bloom

for Ms. Waters, who's present.

THE COURT: All right. We are ready to continue with

Mr. Torres?

MR. BLOOM: Yes.

THE COURT: Have Mr. Torres come in and take the

witness chair.

Mr. Torres, just take the witness chair and remember, you

are still under oath.

All right. Bring in the jury.

(Jury present.)

THE COURT: All right. You may be seated.

Good morning to you. We are ready to continue where we

left off with Agent Torres.

MR. BLOOM: Good morning.

ANTHONY TORRES, previously called, further testified as

follows:
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DIRECT EXAMINATION - Continued

BY MR. BLOOM:

Q. A few more questions about your dealings with Jennifer

Kolar.

Now, when she spoke to you that same day, December 16th,

she told you that she had participated in the Susanville

arson; is that correct?

A. Yes, sir.

Q. She told you that one of the things that she did was she

went in with four buckets of gasoline; is that correct?

A. I think I testified yesterday that I wasn't sure if that's

what she told us. I'd have to review my 302.

Q. Could you take a look at the 302, which is Exhibit A-27?

I am sorry, I misdirected you.

Could you take a look at your notes, which is Exhibit

A-29, and look at page -- the last three digits are 309?

A. Yes, I see that.

Q. Did she tell you anything about that she went in with four

buckets, about the third line down?

A. Yes. It says, "I went in with four buckets with Jack. He

set two. I set two."

Q. She set two buckets with gasoline to go up in flames to

burn down that facility. That's what she told you, right?

A. Yes, some kind of flammable liquid. I don't know if it

was gas, but that's correct.
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Q. She was not just a peripheral figure in that arson, she

was deeply involved in the actual event; is that correct?

A. She was involved.

Q. That's what she told you?

A. Yes.

Q. I am going to leave that day, December 16th, and I am

going to move on to the next time you spoke to her, which

would have been -- am I correct -- about two-and-a-half, maybe

three weeks later, January 6th of 2006?

A. No, sir, I was not at that meeting.

Q. You were not there?

A. No.

Q. Did you come to learn that there was an interview on that

date --

MR. BARTLETT: Okay. The question should be what

this witness has permanent knowledge about, not something he

might have learned about reading other reports. He should

just go to this witness's personal knowledge.

THE COURT: Let me ask you, because this is your

witness you are calling --

MR. BLOOM: Yes.

THE COURT: -- so I am trying to understand why you

are going over something involving this case that he says he

wasn't there at the meeting.

MR. BLOOM: All right. I am going to move on. I
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don't disagree, except that you shared --

MR. BARTLETT: Objection, we don't need an editorial.

THE COURT: The objection is well taken. I don't

want you to go into explaining anything. If I rule on it,

stop it there and then move to the next question.

MR. BLOOM: That's fine. I will do just that.

BY MR. BLOOM:

Q. Did you share information with Agent Halla at this

investigation?

A. Yes.

Q. Did you share information with Mr. Friedman and

Mr. Bartlett in this investigation?

A. Yes.

Q. Did there come a time when you yourself participated in an

interview with Jennifer Kolar any time after December 16th of

'05?

A. Yes.

Q. When was that?

A. I believe the next one was January 12th.

Q. At the January 12th interview, did she tell you of her

participation in the Santa Cruz book club meeting?

A. That's correct.

Q. She gave you the names of the people who were present?

A. I believe so. I would have to refer to the documents, but

I believe that's correct.
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Q. When you say the documents, do you mean the 302 or your

handwritten notes or both?

A. Both.

Q. Do you have in front of you -- I am going to get the

exhibit for you to look at. But meanwhile, let me ask you,

did she tell you in that interview that she had participated

in an arson at the Cavel West --

MR. BARTLETT: Objection, Your Honor. Ms. Kolar has

testified. That testimony is in front of the jury. If there

is a prior inconsistent statement that he wants to elicit from

this witness, that is proper at this point in time. But

simply to rehash what Ms. Kolar and Special Agent Halla have

already testified to is simply not allowed under the Rules of

Evidence.

He should not be allowed to go over all the evidence that

was already heard. If he wants to get prior inconsistent

statements out, that's admissible. This is not.

THE COURT: Maybe he can tell me what he's trying to

do.

MR. BLOOM: I am trying to do exactly what

Mr. Bartlett suggests, prior inconsistent statements.

THE COURT: Then you may ask the question.

BY MR. BLOOM:

Q. I am sorry, I may not have given you A-33. Do you have

A-33 in front of you?
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THE CLERK: No.

MR. BLOOM: Thank you. It's on the way. It's in the

mail.

BY MR. BLOOM:

Q. Now, preliminarily, if you look at page 3 of that

exhibit -- it may not be on page 3, but I am sure you can

remember -- did she tell you about how she had bought a whole

bunch of soap, dozens of bars of soap?

MR. BARTLETT: Objection, that isn't an inconsistent

-- prior inconsistent statement. That's exactly what

Ms. Kolar testified to. That's what I am objecting to.

MR. BLOOM: If I may --

THE COURT: What's prior inconsistent about that?

MR. BLOOM: That first question is not a prior

inconsistent statement, but I am setting the stage for what

she told him. I can only ask one question at a time.

THE COURT: All right. Answer the question. What I

am concerned about, Mr. Bloom, is we are going over and over

and over like a broken record and I am trying -- if we don't

have to do that, there's no need to do that. I want you to go

to something that is going to assist the jury in this case.

MR. BLOOM: No witness, other than Ms. Kolar, has

testified to this event --

THE COURT: Mr. Bloom, ask the question, please.

BY MR. BLOOM:
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Q. Do you remember she told you she bought dozens of bars of

soap and she processed it into a paste of some kind; is that

correct?

A. Are we referring to the January 12th interview?

Q. Yes. I am thinking, did you take handwritten notes?

A. I don't recall if I did or not. If you have them, I would

like to have them, please.

Q. What I want to talk about is if there is anything in this

document that refreshes your recollection or helps you recall

whether she talked about, on January 12th, what she did with

regard to Cavel West.

MR. BARTLETT: Your Honor, I might have the wrong

302. I am not seeing anything in my report on this issue at

all.

MR. BLOOM: I would appreciate not being interrupted

in my examination.

THE COURT: He's making an objection about whether

it's prior inconsistent.

MR. BARTLETT: I think there's a chance we are on the

wrong 302.

THE COURT: It may be. Let me see you get some

questions down the line and maybe some determination can be

made. If I can stop the two of you from going at each other

and jumping up and down, we may get through this.

MR. BLOOM: I think Mr. Bartlett is actually correct.
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I think I am discussing the wrong interview. It was the

interview which he was not present.

THE COURT: Then move to the right one.

MR. BLOOM: I am going to move on and not ask

questions about that. Mr. Bartlett is correct that --

THE COURT: I don't need you to editorialize. If I

say just move on, just go on to the next one. You don't need

to comment on it.

MR. BLOOM: Fine. Fine.

THE COURT: Okay.

BY MR. BLOOM:

Q. Now, on January 12th, an interview which you were present,

that's where she talked about Santa Cruz; is that correct?

A. Yes.

Q. She gave you -- am I correct -- she gave you names of

people who were at that meeting; is that correct? Look

through at page 3.

A. Yes, I see that.

Q. And Briana Waters was not one of those people; is that

correct?

A. Her name is not listed.

Q. Correct. That was a meeting where you were informed by

Ms. Kolar that what was discussed was Chelsea Gerlach talked

about using codes; is that correct?

MR. BARTLETT: Objection, Your Honor. This is all
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consistent with what Ms. Kolar testified to. There's nothing

inconsistent about these questions.

THE COURT: I am waiting. He says he's going to get

to something inconsistent, so I am waiting on that to happen.

A. Can you repeat the question?

BY MR. BLOOM:

Q. Yes. That is the meeting, that discussion of January 12th

where she was talking about the Santa Cruz book club meeting,

one of the things she told you was that Chelsea Gerlach taught

all the people present about how to use codes; isn't that

correct?

THE COURT: Hasn't that been covered, Mr. Bloom?

MR. BLOOM: It's been covered by Ms. Kolar. If I

may, I am not limited to just talking about prior inconsistent

statements. If I may -- I am talking about, and I am allowed

to question about what it is he learned from Ms. Kolar on that

day.

Even if she has testified consistently, I can still talk

about that and where that led the investigation, and that's

what I am trying to do.

MR. BARTLETT: I disagree. The conversations between

Ms. Kolar and this witness, her statements to him, are

hearsay. They are inadmissible. The only thing admissible at

this time through this witness, that he chose to call, are

prior inconsistent statements.
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Those are the Rules of Evidence. If he wants to explain

what prior inconsistent statement he wants to elicit and go

into, that's perfectly allowable. But simply to rehash what

Ms. Kolar has already testified to, that is consistent with

her testimony, is not allowed under the Rules of Evidence.

THE COURT: All right. Mr. Bloom -- let me have you

folks step out for a moment.

(Jury not present.)

THE COURT: Okay. Be seated. Mr. Bloom, it is my

understanding now, you called this witness?

MR. BLOOM: Yes, I did.

THE COURT: It is your witness, so you are calling

this witness, I guess, to rebut or to find something

inconsistent about whatever testimony that you are looking

for?

MR. BLOOM: In part.

THE COURT: Otherwise, then it would be your witness

as to the events of which this Defendant is here today. So

why are we going and rehashing, going over and over again,

what the witness has already testified, if it's not what you

are getting from this witness, inconsistent to that?

MR. BLOOM: I don't see where you are saying over and

over again. There was testimony from Kolar --

THE COURT: Then I would suggest you get the

transcript and read it, if you don't think you are going over
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it and over it again.

I am talking now about how you approach questions that

would be as to this witness. What do you want from this

witness? Do you want to see something that's different than

what you heard?

MR. BLOOM: I would ask that the witness be excused

while we discuss this.

THE COURT: All right. Why don't you step outside.

(Witness departed courtroom.)

MR. BLOOM: One of the things, in addition to prior

inconsistent statements with regard to the witnesses with whom

he spoke, I am also entitled to explore, just as they were

entitled to explore, the direction and the events of this

investigation. That's much of what they did. I don't see why

we can't do the same thing.

MR. BARTLETT: And I have no objection --

THE COURT: Wait until he's through.

MR. BLOOM: I am done.

MR. BARTLETT: I have no objection to that. If he

wants to put the witness on the stand and indicate, did you

have a conversation with Ms. Kolar on January 12th, yes.

Pursuant to that conversation, what did you do in this

investigation? There's nothing improper about that.

What is improper is to painstakingly rehash and rehash

what Kolar has already testified to. Her statements to this
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witness are only relevant with regard to if they are prior and

inconsistent. If they aren't, he can merely ask what he did

with this investigation, and that can go fairly quickly and we

can get done with this trial.

MR. BLOOM: Judge, they spent two weeks on this

trial.

THE COURT: They have to put on a case. They have

the burden here. But I want -- I am dealing now with what you

are trying to elicit from this witness, other than a

regurgitation of this over and over or reading these things

that are going over and over and over again. I want you to

ask something that would go to the defense of this witness,

other than, like I said, I am seeing a wheel here. That's all

I am saying to you.

MR. BLOOM: I am not sure what the Court means by

over and over. Kolar testified to this. Nobody else

testified to this. This is the first questions about this, of

any witness. What's over and over?

THE COURT: You've asked all the questions of her

when she was on the stand. Now you are asking questions of

him, what did she say to him that would be inconsistent with

what the testimony would be.

MR. BLOOM: That's one, and as we've acknowledged and

Mr. Bartlett has acknowledged --

THE COURT: Let me put it this way. When I think you
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are going over and over again, I am going to tell you to move

on.

MR. BLOOM: I am asking for the Court's basis of over

and over. I have never asked these questions of him.

THE COURT: When I think you are asking a question

improperly, I am going to ask you to move on.

MR. BLOOM: That's legitimate, but I am wondering

where the Court gets -- can I be heard, please?

THE COURT: You can be heard. You keep talking.

Tell me when you are through.

MR. BLOOM: I will. I have never asked these

questions. One witness, Kolar, has testified about what she

says happened with regard to, for example, buying a bunch

of -- I am sorry, talking about another issue, talking about

the codes, what was discussed at the Santa Cruz book club

meeting. She has testified about that.

First of all, we are not bound to accept the truth of her

testimony. This is a witness who heard her talk about that on

January 12th. I am entitled to ask what it was that she said

on that day.

Now --

THE COURT: And your purpose?

MR. BLOOM: -- and where that took the investigation.

I am entitled to ask that, in addition to being entitled to

ask about prior inconsistent statements. Both of those things
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are legitimate areas of inquiry, and this is no over and over.

I don't know where the Court is coming from by over and over.

THE COURT: Have you completely made your record,

sir?

MR. BLOOM: I am finished, sir.

THE COURT: Bring the jury in.

MR. BARTLETT: If I could just be heard. It is no

different than the United States -- the fact that he is the

opposing party is irrelevant with regard to an analysis of

whether or not this is admissible testimony. It would be no

different for me to call Ms. Kolar to the stand, get all of

the direct out, and then called Ted Halla and say gee, tell us

everything she told you, and go through all the direct

examination again. It is not allowable. He can say it is.

It isn't.

THE COURT: This is a little bit different because

you are talking about two witnesses who would be your

witnesses.

MR. BARTLETT: Prior inconsistent statements, that's

the only thing he can bring out through this witness.

THE COURT: Let me do this. Let me ask the two of

you to let me do my best to run this case.

MR. BLOOM: Of course.

THE COURT: Bring in the jury.

(Jury present.)
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BY MR. BLOOM:

Q. Agent Torres, just in general -- I will be very direct

here -- you learned from Jennifer Kolar or you heard from

Jennifer Kolar on January 12th of '06, that she particularly

had brought PGP disks to distribute to each of the

participants; is that correct?

A. Yes.

Q. You came to learn that she instructed the group at some

point; is that correct?

A. Yes. The 302 states that Kolar taught the group how to

use PGP encryption and anonymizer and other security type

software.

Q. Speaking to her on that day, is it fair to say that you

realized that Jennifer Kolar was very much at the center of

this group of people, a very important, integral part of the

operations of this group of people who were doing arsons?

A. Well, I don't know if I would say she was at the center of

this or an integral part of it. My understanding is, several

people came to the meetings with possibly their own areas of

expertise and security. Computer security was maybe her area

of expertise. I wouldn't say she was a central part of that.

I am not sure.

Q. Well, you did also come to learn by that time that she was

involved in, count them, four arsons, right?

A. Well, the initial meeting, she told us she was involved in
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three. Which is the fourth you are referring to?

Q. The Wray Gun Club that she remembered, quote/endquote, at

some point before this interview?

A. Yes. At some point, I do recall her mentioning that she

took responsibility for the Wray Gun Club incident, yes.

Q. So by January 12th of '06, you had come to learn that she

did instruction of the other people on security, provided PGP

disks, and was a person who was actively involved in four

separate arsons?

A. What I am saying --

Q. Is that true?

A. No, I haven't answered the question.

Q. Okay. Go ahead, please answer.

A. What I am saying is on January 12th -- I am trying to

recall if that's the meeting where she said she was

responsible for the Wray Gun Club or not.

Q. Even if it was after, right, by the time you understood --

you understood, did you not, that she was involved -- let me

withdraw that.

By the date of this interview, January 12th, you

understood that she was involved in at least three separate

arsons in which she was an active participant?

A. That's correct.

Q. And you understood that she did this instruction at the

Santa Cruz book club meeting with regard to security issues?
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A. Yes.

Q. Is it fair to say you had come to understand by that time

that this woman was a major criminal?

MR. BARTLETT: Objection, Your Honor. This is

argument.

THE COURT: Sustained. That's argument. Move on.

BY MR. BLOOM:

Q. Now, is it true that she told you that there was -- at the

Santa Cruz meeting, there was a next book club meeting that

was scheduled for Olympia; is that correct?

A. Yes.

Q. And that she was asked to find a location for that?

A. Yes.

Q. Again, an indication to you, was it not, that she was a

very active member of this group of people?

A. She was a member of this group of people. It was still

unclear how active she was, but she was a member of this

group.

Q. Did she go on that day, which is January 12, 2006, to talk

about the Olympia meeting, the next book club meeting? If you

look at page 6.

MR. BARTLETT: We've just gone through the first

meeting. There's nothing inconsistent. We are rehashing what

we've already heard. I object to this line of questioning.

MR. BLOOM: Excuse me, you tell me no speeches.
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THE COURT: He can make an objection. What I am

asking is, when I say move on to something that would be

inconsistent or what's been different than what's been

testified to.

MR. BLOOM: I am allowed to ask the progress of the

investigation --

THE COURT: Ask the question.

MR. BLOOM: --what he learned.

THE COURT: Ask the question.

MR. BLOOM: -- what he learned from Jennifer Kolar is

important.

THE COURT: Ask the question.

BY MR. BLOOM:

Q. I am asking you, sir, about what you learned from Jennifer

Kolar on January 12th, okay.

Did you learn from her that the next book club meeting was

in Olympia?

A. The second meeting?

Q. The second meeting she had been to.

A. Yes.

Q. Did she give you the names of the people that she

remembered being at that book club meeting?

A. That's what I am trying to find in the 302, where it

specifically says who was at that meeting.

Q. Let's just skip that.
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A. Okay.

Q. At the January 12th of '06 interview, was she shown

photographs?

A. Yes. On that page, page 6, it says Kolar was shown

photographs of the following individuals.

Q. Was she shown a photograph of Briana Waters?

A. It looks like that's No. 4.

Q. Right. Did she state to you that this person, in that

picture, looked like Briana?

A. The 302 states that it says, "Kolar stated this individual

looked like Briana."

Q. Did she say at that point, Briana, the person who was the

lookout at the University of Washington arson? Did she say

that?

A. I don't recall if that's what she said or not.

Q. You certainly would have written that down if she said

that, right?

A. Perhaps. I am not sure.

Q. Why would you have not written that down if she said that?

A. Do you have my notes, sir?

Q. I don't have your notes.

A. Well, then I don't know if I would have written it down or

not. I am not exactly sure what she said.

Q. Whatever it was she said, it didn't wind up in the 302,

right?
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2106

A. I am not saying that. Like I have testified before, our

notes aren't transcripts of the interview. So we are not

writing down everything she says.

Q. If she had said, Briana Waters, looking at that picture,

that's the woman who was at the University of Washington

arson, you would surely have put that in your 302, would you

not?

A. Perhaps. I am not sure. I did not write this 302, and if

I took notes, I would like to see them.

Q. You were present and your name is on there with Agent

Halla; is that correct?

A. Yes. That's true.

Q. You testified about how you collaborated with him in

preparing the final serialized version of the documents, the

302s, right?

A. We discuss the interviews. It's a process, yes.

Q. Try to answer my question. If she had said Briana Waters,

that picture, that woman, that's the woman who was at the

arson at the University of Washington, can you possibly

imagine any reason you would not include that in the 302; any

reason whatsoever? You tell the jury.

A. I am not sure, sir.

Q. In any event, it's not in the 302, right?

A. It is not in the 302.

Q. Now, there was another interview the next day. I think
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2107

you were not there; is that correct? The 13th?

A. That's correct. I was not there.

Q. Now, on the 17th of January, a few days later, there was

another interview. Were you present for that?

A. I don't believe so, no.

Q. Okay. Now, there was another interview two or three weeks

after that, another interaction, I should say, between you and

Jennifer Kolar. That would be February 4th of 2006?

A. Correct.

Q. That was the day that you and Agent Halla and she drove to

Olympia from Seattle; is that correct?

A. Yes, sir.

Q. Was she shown photographs on that day?

A. Yes. Special Agent Halla showed her some photographs.

Q. Did she look at a photograph of Justin Solondz?

A. I would need to refer to the report.

MR. BLOOM: I am sorry, Pat. Could he be shown A-43

and A-44? Thank you.

BY MR. BLOOM:

Q. Could you please look at A-43 and A-44? Are those both

302s, or is one of them notes?

A. A-43 is a 302 and A-44 is a 302.

Q. Now, on that day, if you can look at page 1, I think it is

A-43. Was she shown a picture -- Jennifer Kolar -- shown a

picture of Justin Solondz? If you look at the first page of
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2108

picture No. 5.

A. It says No. 5, correct, Justin Solondz, and then it has

"no" afterwards.

Q. It says Justin Solondz. Does that mean she looked at the

photograph and she said I don't know that person?

A. I believe so.

Q. Now, did there come a time when there was a discussion

about Briana Waters on that day? That would be February 4th

of '06.

A. Yes.

Q. If you could look at page 2 of that document and go to the

bottom. She told you, did she not, that Briana was outgoing,

clean cut, into singing and music?

A. That's what the 302 says.

Q. It also says, "Kolar did not recall Briana and Lacey being

close friends"?

A. That's what the 302 says, yes.

Q. Before I get to that specific entry, am I correct that

during the discussion of Briana Waters, February 4th,

Ms. Kolar did not say Briana Waters, that's the person who was

involved with me in the arson at the University of Washington?

Did she say that?

A. I am not sure. You'd have to understand, this was in a

moving vehicle. I was driving. We were on I-5 when this was

happening. Special Agent Halla was in the passenger seat.
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2109

Jennifer Kolar was in the rear seat, and Special Agent Halla

is asking her questions. I have snapshot memories of when we

were driving that day, but I was trying to concentrate on

driving.

Q. Was Agent Halla taking notes?

A. I don't recall if he was taking notes or not.

Q. Do you recall if he was?

A. I don't recall whether -- I would be very surprised if he

wasn't taking notes.

Q. That's part of your investigative responsibilities; is

that correct?

A. Yes.

Q. There came a time when you arrived in the Olympia area; is

that correct?

A. Yes.

Q. There came a time when you were not driving; is that

correct?

A. Yes.

Q. At any time with her that day, any time, did she say that

Briana Waters was involved in the University of Washington

arson?

A. We went to the Evergreen State College in Olympia and we

walked out to the campus and to the library area. I believe

that's when she told us a preplanning meeting happened for the

University of Washington, and that Briana Waters had arranged
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2110

that room for it, because I believe she was a student there.

Q. Okay. I will get back to that in a moment.

A. Okay.

Q. At any time, is there any indication in your 302, or any

memory that you have, of her saying Briana Waters participated

on May 20th, 21st, in the arson at the University of

Washington?

A. Can I review the 302 before I answer that?

Q. Of course. Yes. What is your answer to my question?

A. I don't see in the 302 where it states that.

Q. And this is the day where she did discuss Briana Waters;

is that correct?

A. Yes.

Q. Did she also tell you on that day that she recalled --

she, Kolar -- recalled calling Lacey Phillabaum from a pay

phone once? You can look on page 2, right in the middle.

A. I see that.

Q. Do you recall hearing that and possibly thinking this is a

woman who knows how to contact anybody she wants to in a

clandestine way?

A. I don't recall that at all.

Q. You don't recall thinking that?

A. I don't recall this statement.

Q. It's not a statement. I am saying, she told you that she

called Lacey from a pay phone once; is that correct?
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2111

A. Yes. It says, "Kolar recalled calling Lacey from a pay

phone once."

Q. When you heard her say that, did it occur to you that this

is a woman given her skills and intelligence, who was able to

contact people in a surreptitious or clandestine way?

MR. BARTLETT: This is argument, Your Honor.

THE COURT: This is argument.

BY MR. BLOOM:

Q. Did she tell you that day that she regarded Lacey

Phillabaum as a younger version of herself?

A. Yes.

Q. Now, let's get back to the paragraph on the same page

where, in the 302, it says, "Kolar did not recall Briana and

Lacey being close friends."

A. Yes.

Q. Do you see that? She didn't actually say that, did she?

A. I don't remember her exact words. My snapshot memories of

this drive -- I seem -- I seem to recall this is the time when

we were driving back to Seattle north on I-5. I recall

Mr. Halla mentioning something to Ms. Kolar, asking her

something about the relationship of Briana Waters and Lacey

Phillabaum. The snapshot memory I have at the time was

something to the effect that they were acquaintances, not very

close or something, but just not perfect strangers.

Q. You see what's on the screen in front of you, right?
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2112

A. Yes.

Q. That's Exhibit A-45, which is in evidence, and it's Agent

Halla's notes for that day. Agent Halla took notes. Those

are his notes. I represent that to you.

A. Yes.

Q. His notes say that, Kolar indicated I don't remember

Briana and Lacey together. Is that correct? That's what his

notes say?

A. Those are the words on his notes.

Q. That's different from people being close friends?

MR. BARTLETT: Objection. First of all, they are not

his notes. Second of all, they already cross-examined Agent

Halla.

THE COURT: His notes have got to speak for

themselves.

MR. BLOOM: Fair enough.

BY MR. BLOOM:

Q. In fact, that's what Kolar told you on that day, "I don't

remember Briana and Lacey together"? That's what she told

you, isn't it?

A. You would have to ask Mr. Halla that.

Q. I am asking you, who was present.

A. I was present. I was driving. I don't remember her

saying, "I don't remember Briana and Lacey together." What I

remember is the snapshot memory, the characterization of it,
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2113

sir, is that they were not strangers.

Q. Did you and Agent Halla have a discussion about, let's not

put down that they were strangers, let's put down, "I don't

remember Briana and Lacey together"? Let's do that?

A. No, sir.

Q. That wouldn't have happened, right?

A. No, I don't believe it did happen.

Q. His notes are his notes, and he took down what he heard

because that's what you do when you take notes?

MR. BARTLETT: Objection.

THE COURT: It's been asked and answered. Those are

his notes. They say what they say.

BY MR. BLOOM:

Q. You realize it as you sit there now, if Briana and Lacey

were not together, they could not have been together at any

meetings involving the University of Washington arson. You

know that, right?

A. If it was actually true that Briana -- as these notes --

as I am reading the notes -- I am not reading the notes --

that it was actually true that Briana Waters and Lacey

Phillabaum were never, ever together, then I guess you could

come to that inference. However, I don't believe that to be

true or the case.

Q. The same is true that they couldn't have been together at

the Greenlake restaurant just before the arson, correct?
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2114

MR. BARTLETT: Objection, it's just argument.

THE COURT: It's going into the same thing in the

same way, Mr. Bloom.

BY MR. BLOOM:

Q. Now, we've talked earlier about the FBI regulations

requiring accuracy, right?

A. I believe we required -- there weren't regulations

requiring accuracy. That was more a common practice or

established practice.

Q. And the principal thing to do, to be accurate?

A. We strive to be accurate; yes, sir.

Q. Of course. So this handwritten note by Agent Halla that

was made at the time Kolar was speaking, you would

understand -- you would expect that to be accurate, right?

MR. BARTLETT: Objection, it's just argument.

THE COURT: It's been asked and answered and been

covered.

BY MR. BLOOM:

Q. Now, in this particular case, February 4th of 2006, we

don't have to rely on your memory or Agent Halla's memory or

even the notes; there's a tape recording of the conversation

between you and Agent Halla and Lacey Phillabaum; is that

correct?

A. No.

Q. There's no tape recording?
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2115

A. Not between myself, Agent Halla and Ms. Phillabaum.

Q. Do you know that -- I am sorry. When I said Phillabaum, I

was completely wrong. I am talking about Kolar.

A. Yes, there is a recording of that.

Q. Kolar herself made a tape recording, right?

A. Yes, she did.

Q. Does the Government have a copy of the tape recording?

A. I don't believe we do.

Q. Now, she, Ms. Kolar, has agreed to fully cooperate with

the Government; is that correct?

A. Yes, she has.

Q. If you or Mr. Friedman or Mr. Bartlett or Agent Halla said

we'd like to have a copy of that tape recording, that would be

part of her agreement to cooperate, to turn that over; is that

correct?

A. I am not sure if that was asked of her.

Q. I am not saying you know one way or the other, but if she

were asked, it would be reasonable to believe that she would

be -- as part of her agreement, she would be required to turn

over a copy of that; is that correct?

A. I am not sure because she told us from the very beginning,

when she got in our vehicle, that her attorney, Michael

Martin, had asked her to record the events of that day.

Q. Yes.

A. So I don't know if -- I am not a lawyer. I am just
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2116

thinking here, is it attorney/client privilege, that she even

has the authority to hand that over, or if that's Mr. Martin's

authority to hand that over.

MR. BLOOM: Judge Burgess, could you please instruct

the jury, with regard to attorney/client privilege, that if

there's a conversation between people, not the attorney, that

is not subject to attorney/client privilege. Could you please

give the jury an instruction on that?

THE COURT: I don't know if I should instruct them on

anything at this point. He's answering your questions. So I

will let it go at that. If there is something else I should

add to that, I will do that and I will hear you out at the

break. Right now, I want you to get into the questions. You

are asking him the questions and I guess you want him to

respond?

MR. BLOOM: Yes.

BY MR. BLOOM:

Q. You know very well, if it's a conversation between the

attorney and the client, then that may be an attorney/client

privilege.

If it's a conversation involving any other person, there's

no privilege. You know that? That's basic stuff?

A. Maybe so. What I am saying is, I don't know if the report

belongs to her or if the recording belongs to her attorney.

But that's what I am saying.
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2117

Q. To whomever the recording belongs, that recording will

tell this jury, if we had it, whether or not she said "I don't

remember Briana and Lacey together." That would be on there,

would it not?

A. That recording should reflect the words that she spoke on

that day.

Q. Can I ask you to do your best to try to get that recording

for us?

A. No, sir. That's not my responsibility. That's not my

job.

MR. BLOOM: Could I ask the Court to ask the

prosecution?

MR. BARTLETT: Objection, Your Honor.

THE COURT: That's a bad question. Ask the next

question about what you want to know about this case.

BY MR. BLOOM:

Q. Now, on March 6th, about a month later, was there another

interview of Kolar at which you were present?

A. Yes.

Q. Now, that was the first time, am I correct, that she said

that Briana Waters was involved in this incident. First time

she said to you?

A. I believe that's the first time Ms. Kolar told that to me

directly.

Q. Okay. And you understood that she had told that to her
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2118

lawyer, who had communicated that on January 5 of 2006, to

Mr. Friedman?

A. That's my understanding.

Q. From January 5th, exactly two months later -- I am sorry,

March 6th -- there had been no indication from Ms. Kolar that

that was true, no statement whatsoever that Briana Waters was

involved in the arson; is that correct?

A. Can you repeat that question?

Q. Right. Between January 5th -- I am sorry, January 5th,

the day that Mr. Martin supposedly told Mr. Friedman what his

client had quote remembered, two months, she did not say a

single word to you in your presence or in any of the

interviews, about seven interviews, that Briana Waters was

involved in the incident; is that correct?

A. It is my understanding that the following day there was an

interview of Ms. Kolar in which she identified Briana Waters.

I believe that was on the 6th.

Q. Identified her as a person whose picture she remembered,

she recognized?

A. I believe that's correct.

Q. Did she identify her on that day, or any day between

January 5th and March 6th, as being a person who was involved

in the arson?

A. On the January 12th -- let me correct that. On the

February 4th drive to Olympia, she identified, I believe,
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2119

Briana Waters as being responsible for getting -- I would have

to review the notes -- of being at or responsible for getting

the room at the Evergreen State College. I believe that's

true.

Q. At that time, did she then say: And then she went on to

be involved in the arson? Did she say that?

A. That is involvement in the arson. It's pre-planning for

the arson.

Q. Did she say then on May 20th, 21st, she was involved in

the arson? Did she say that?

A. I don't believe she said that.

Q. So this was involved in getting a room in a public place,

a building in a room at Evergreen State College. They were

going to have a meeting there, is that your position?

MR. BARTLETT: Objection, Your Honor, argumentative.

THE COURT: Let him answer.

BY MR. BLOOM:

Q. Is that your testimony?

A. Can you repeat the question?

Q. Yes. Getting a room in a public place where people could

be seen, that had something to do with an arson?

A. Getting a room?

Q. Yes.

A. To discuss the planning of an arson, whether it be in a

private or public place, in a closed room, is very
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2120

significant.

Q. A closed room?

A. Well, a room. From what I understand, it was a room,

almost a study room.

Q. Yes.

A. With a closed door.

Q. Yes.

A. If they are in there talking about particulars of an arson

and how to conduct an arson or pre-planning or logistics,

that's very significant.

Q. When you get to that room, you get to that room by being

on the campus of the University, right, where you can be seen?

A. Yes.

Q. And in the building where you can be seen?

A. Yes.

Q. Now, there are, are there not, eight zillion secluded

places -- excuse me, eight zillion secluded places all over

the Northwest?

MR. BARTLETT: It's just argument, Your Honor.

THE COURT: That's argumentative as to what was going

on in the meeting, I guess, as well as can you go there for

any innocent purpose. That's argument.

BY MR. BLOOM:

Q. You say it's significant?

A. I think it is very significant. There's more privacy
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2121

there than at the Greenlake Bar & Grill a few hours before the

arson when they all get together to discuss it.

Q. Is there more privacy there than in the woods?

A. Where than in the woods?

Q. In a room at the University -- at Evergreen State

University? Is there more privacy there in a building where

you can be seen going in and out than there is in the woods?

A. I don't know. It depends on the woods. Is it a

campground in the woods? Is it 10 miles into the woods? I

can't answer that.

Q. How about in a car? How about just in a car?

MR. BARTLETT: Objection, Your Honor. This isn't

cross. This is direct examination.

THE COURT: This is beginning to get argumentative

here. Let's move on to the next question.

BY MR. BLOOM:

Q. You said it's significant that there was a room arranged

for some kind of meeting. You said it was significant?

A. Yes.

Q. It's significant because you want the jury to believe

there was some arson discussed; is that correct? Is that what

you are saying?

A. That's what I am saying.

Q. I am asking you questions about whether or not an

unlimited number of more secluded, private places where nobody
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2122

would be seen, if indeed that happened and if indeed that were

the subject matter --

A. Perhaps. Someone's house would be more secure.

Q. And someone's car would be more secure, right?

A. Perhaps.

Q. And the woods would be more secure, right?

A. It depends.

Q. Depends on what?

A. The environment of the woods. I mean, when you say the

woods, I don't know.

THE COURT: I think that's been asked and answered.

You made your point.

BY MR. BLOOM:

Q. Now, on March 6th, did Jennifer Kolar tell you -- I don't

know what exhibit it is that Mr. Fox -- March 6th, the 302.

MR. FOX: A-50.

BY MR. BLOOM:

Q. Do you have A-50 in front of you? If you can look at that

document. Is that the 302 that reflects what happens in your

presence, in an interview with Jennifer Kolar on March 6th of

'06?

A. Yes.

Q. Would you look at the top of page 3? Did Jennifer Kolar

tell you on that date, March 6th of '06, that she believes

that Avalon may have arranged the rental car?
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2123

A. It says, "Kolar believes Avalon may have arranged the

rental car."

Q. That's just what I asked. Did she tell you that?

A. Yes.

Q. She didn't say Briana Waters arranged the rental car, did

she?

A. I don't see that as reflected in this 302.

Q. Well, this is the first time that she's claiming that

Briana Waters was involved in the arson; is that correct?

A. No, I believe she said in an earlier interview on January

6th, that I thought she was involved, but I wasn't there. I

would have to clarify that.

Q. You take a look at any document you want, and you let us

know where she says on January 6th or any date before March

6th --

A. I said --

Q. You take a look. You tell us. Tell this jury where she

said that.

A. I said I believe. I wasn't sure.

Q. Take a look at anything you want to refresh your

recollection. Take a look at January 6th, January 7th, 8th,

9th, 10th, 11th, 12th, any day, and you tell the jury where

she said that before March 6th.

A. Before March 6th.

Q. Before March 6th, that's right.
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2124

A. Can you refresh my memory as to the January 6th, 302?

Q. You mean what number it is?

A. Yes.

Q. A-30.

MR. BARTLETT: Your Honor, I also ask the witness be

provided the stipulation regarding Mr. Martin's phone call to

the Government.

THE COURT: I will have you do that when you get a

chance to question him.

BY MR. BLOOM:

Q. While you are looking, you were not there on that day,

January 6th?

A. I was not.

Q. You are looking to see if it refreshes your recollection,

correct?

A. Correct.

Q. About what she had said not in your presence?

A. Yes.

Q. Please keep looking.

A. The only reference that I can see is on the first

paragraph where it says Briana, a phone number and a Hotmail

account.

Q. First page?

A. First page, yes.

Q. There was some handwritten notes located on the back of a
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newsletter that had Briana, her phone number and her e-mail

address; is that correct?

A. Yes.

Q. Okay. After that, does it say anything to indicate she

then said that that woman was involved in the arson? Did it

say anything, any of the 10 pages you've looked at?

A. I don't see that.

Q. So is there any other document you want to look at to see

if she said anything else about Briana Waters being involved

in the incident prior to March 6th?

A. No.

Q. You are satisfied that you won't find anything, right?

A. I believe so.

Q. In fact, in that period, over the course of those seven

meetings, Briana Waters' name did come up and she did not say,

that's the woman who was with me on May 20th and May 21st?

A. Her name did come up, and I don't recall if those exact

words were spoken.

Q. Or words anything like that, that she was with me at the

Greenlake, she was with me at the arson, she was with me in

the van, she was with me anywhere on May 20th and 21st?

She did not say that even once, before March 6th; is that

correct?

A. I don't believe so.

Q. Going back to March 6th, did she say -- page 3, for your
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reference, at the bottom -- did Kolar tell you on that day

that she recalled no significant events that happened en route

from the arson to her vehicle?

A. The 302 states, "Kolar recalls no significant events

happened en route to her vehicle."

Q. She didn't report to you that something huge happened,

right?

A. No.

Q. She didn't report to you that the car or van had an

accident, did she?

A. I don't believe so.

Q. That would be an event of significance, would it not?

A. It depends on how significant the accident was.

Q. Indeed, in the get-away, whoever did that crime, the

get-away from the scene to their escape, if there were an

accident, whether it's a small accident or a big accident,

that would or would not be an event of significance?

A. Again, it depends on how significant an accident. Depends

on how we are defining accident. If it's a scrape or if it's

a big crash, it depends on how significant that is.

Q. Well, if it was an escape that Lacey Phillabaum described

as seeming huge, that would be a significant event, wouldn't

it?

A. I think if it was -- well, to different people it varies

in significance.
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Q. How about people getting away from an arson?

A. You'd have to ask the people getting away from the arson.

Q. I am asking you what one of those people said to you about

whether or not there was any significant event that happened

in the get-away from the arson to taking her to her car?

A. If you are referring to what Ms. Kolar said --

Q. I am.

A. Okay. In her 302 it says, "Kolar recalls no significant

events happening en route to the vehicle."

Q. Did she also tell you on March 6th that she went to her

boyfriend's, Jonathan Reichhold's, and spent the night?

A. Yes.

Q. Did she also tell you that the following day when the news

reports of this arson came out, that her boyfriend Jonathan

gave her a peculiar look?

A. Yes.

Q. You came to learn from that that she was deceiving her

boyfriend; is that correct?

A. It just says she didn't say anything. I don't know if

that's deception or not.

Q. She'd just committed an arson, you know that.

MR. BARTLETT: Objection, Your Honor, this is

argument.

THE COURT: I think it is argumentative.

BY MR. BLOOM:
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2128

Q. Did you come to the conclusion, when you heard her say

that, this is a woman who would go so far as to deceive her

live-in boyfriend?

MR. BARTLETT: Objection, Your Honor, argumentative.

MR. BLOOM: I am asking what conclusion he came to.

THE COURT: That's why it's argumentative. You will

draw the conclusion when you argue the case.

BY MR. BLOOM:

Q. Let's leave Jennifer Kolar for now and let's talk about

Lacey Phillabaum.

When was the first time you spoke to her?

A. I believe it was February 21st.

Q. And where was that?

A. At the United States Attorney's Office in Seattle.

Q. Would that have been with Mr. Friedman?

A. Yes.

Q. And Agent Halla?

A. Yes.

Q. Was Mr. Bartlett present?

A. I don't recall if Mr. Bartlett was present or not. I

would have to review the 302.

Q. Would you take a look at Exhibits A-113 and A-114?

A-114 is your notes and A-113 is a 302.

A. For the February 21st, it was at the United States

Attorney's Office in Seattle. Mr. Bartlett and Mr. Friedman
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2129

and Mr. Offenbecher were present. Ms. Phillabaum came, myself

and Agent Halla.

Q. And you are reading from the 302?

A. I am reading from the 302.

Q. Okay. Now, Mr. Offenbecher was her lawyer?

A. Was Ms. Phillabaum's attorney, yes.

Q. I am talking now about Phillabaum.

A. Yes.

Q. How long was that interview?

A. I don't recall how long that interview was.

Q. Was it 10 minutes, an hour, two hours?

A. It was probably -- I don't know for sure. I would suspect

an hour, two hours.

Q. You were there. I am asking you to call upon your memory

of the first conversation with Lacey Phillabaum. About how

long was it?

A. I don't know, sir. Maybe an hour, maybe two. I don't

recall.

Q. Is it fair to say that you don't know unless you were able

to look at your documents, which you can do? You don't have

an independent recollection of how long it was?

A. I don't have an independent recollection of exactly how

long that meeting was.

Q. Had you spoken with Mr. Offenbecher before that date about

these events?
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2130

A. About these events? No.

Q. Had you spoken with him about other events?

A. Yes. While investigating drug cases when I was previously

assigned to the organized drug crime squad for the FBI,

Mr. Offenbecher defended one or two clients or suspects.

Q. Had you spoken with Lacey Phillabaum any time prior to

February 21st?

A. I don't believe so, no.

Q. You took notes, is that correct, on the 21st of February?

A. I took a few notes, yes.

Q. You say you took a few notes. I notice there's only three

pages.

A. I have two pages.

Q. Two pages? Did that cover the entire interview?

A. No, it did not.

Q. Did you stop taking notes at some point?

A. I believe I stopped taking notes at some point.

Q. Why did you do that?

A. Well, possibly to avoid confusion of what happened on the

December 16th interview.

Q. You say to avoid confusion. You say it was confusion.

And whatever it was, there was a problem with the December

16th interview with the other witness, Kolar, right?

A. There was confusion.

Q. So you stopped taking notes?
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2131

A. That's my recollection. There's only two pages of notes

here. What I could surmise is when we got to the majority of

the substance of her interview, I relied on Agent Halla to

take the rest of the notes. So if we can review Mr. Halla's

notes, then I would suspect they are substantially longer than

my notes.

Q. So for the important stuff, you decided not to take notes?

A. Well, no, I am not saying for the important stuff, the

substantive facts she was telling us. To avoid the confusion

of what happened with Ms. Kolar's interview on December 16th,

I am surmising that I probably felt that it was best that I

stopped taking notes.

Q. Is that contrary to FBI regulations?

A. I don't think our regulations state either way.

Q. Now, in fact, you had spoken with Lacey Phillabaum prior

to that date; is that not correct?

A. Prior to the 21st?

Q. Yes.

A. I spoke to her?

Q. Yes.

A. I don't know if I did or not, sir.

MR. BLOOM: I would like to move A-114 into evidence.

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-114 admitted.)
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2132

BY MR. BLOOM:

Q. This is the first page of your notes, Exhibit A-114.

A. 114?

Q. Yes.

A. Yes.

Q. Is that the way they began, with your writing "meeting

with Lacey, Peter, Ted, Mark, Andrew"?

A. That's the beginning of that page. That's what it says.

Q. You refer to her as Lacey, right?

A. In my notes, I did.

Q. Yes. In your notes, you did?

A. Yes.

Q. You wrote down Lacey?

A. Yes.

Q. You knew her from before, didn't you; before that date,

didn't you?

A. No, I did not.

Q. Your reference to her as Lacey indicates a familiarity

with her, does it not?

MR. BARTLETT: Objection, Your Honor, this is just

argument.

MR. BLOOM: It is not just argument. I don't

understand what's going on here. I am allowed to ask him

questions about what he wrote.

THE COURT: Mr. Bloom -- answer the question, if you
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2133

know the answer whether that meant you are familiar with her

or not.

A. That's not what that means.

BY MR. BLOOM:

Q. You went through -- who questioned her?

A. Who was asking the questions?

Q. Yes.

A. I don't recall.

Q. Whoever was asking the questions, it would likely have

been one or both of the prosecutors, is that correct? As you

were not -- or was it you and/or Agent Halla as well?

A. I don't recall who was asking the questions, sir.

Q. Is there anything that would refresh your recollection as

to who was asking the questions?

A. I don't know.

Q. Did you understand that she was perhaps going to confess

to one or more crimes?

A. I was not sure what she was going -- it wasn't a

confession, it was a proffer, so I am not sure exactly what

she was going to tell us in that meeting.

Q. Even though you were not sure, did you understand from

Pete, her lawyer, that there was going to be an agreement to

cooperate and to talk to you about what she had done?

A. That's my understanding, that she was coming in to

cooperate. At what level or to what extent, I am not sure,
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2134

but that was my understanding.

Q. Did you ask the Special Agent in charge of the FBI office

in Seattle -- did you say there could be a confession here, I

would like to tape-record it?

A. It was not a confession, it was a proffer.

Q. Did you understand there might be a confession that day?

A. No, it was a proffer. It wasn't a confession. I didn't

know what she was going to tell us.

Q. I am asking you this: It was a proffer from whom to whom?

A. What do you mean from whom to whom?

Q. What is a proffer?

A. A proffer, as I explained yesterday, is a one-sided

interview where someone whom we suspect of committing a crime

is going to come in and tell us what she knows about the

particular crime she may have been involved with.

Q. So you understood that this proffer which comes from the

Government -- I am sorry, does the proffer come from the

Government or from the witness?

A. I believe the proffer comes from the Government -- it's a

Government form.

Q. So the proffer was from the Government, and did you

understand that it could well be in response to that proffer

that she was going to confess to one or more crimes?

A. I didn't know exactly what she was going to tell us prior

to that proffer.
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2135

Q. Say again?

A. I didn't know exactly what she was going to tell us prior

to that proffer. Again, as I explained yesterday, in

11-and-a-half years, I have never recorded a conversation, a

proffer, a confession, an interview, nor am I aware of anyone

else in that office who has.

Q. Now, try to answer my question. You understood that in

response to that proffer, she might well be confessing to one

or more crimes? That's my question.

A. She may be accepting responsibility or giving us

information regarding her involvement in crimes, yes.

Q. Would you call that a confession?

A. I don't know if I would call it a confession. A proffer

isn't a confession.

Q. The proffer comes from the Government. I am talking about

what comes from her to you.

MR. BARTLETT: Objection, Your Honor, argumentative.

In fact, it's misleading to the jury.

MR. BLOOM: Excuse me. You know --

THE COURT: There's an objection, and he has a right

to raise an objection, but I think you are going over and

over.

MR. BLOOM: I am not going over and over.

THE COURT: Let's accept an answer when he gives you

an answer, without going into any other part of it.
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2136

MR. BARTLETT: If we could take our morning break, I

would like to be heard outside the presence of the jury on

this matter.

THE COURT: All right. Let me have you take your

morning break. Don't discuss the case. Leave your books on

your chair.

(Jury not present.)

THE COURT: Same admonition. Let me have you step

out of the room.

THE WITNESS: Yes.

(Witness departed courtroom.)

MR. BARTLETT: Your Honor.

THE COURT: All right. Let me hear your objection.

MR. BARTLETT: The reason these questions and answers

are misleading to the proffer session -- is there going to be

a confession in the proffer letter -- which we'll introduce on

redirect -- paragraph 4 says no direct use -- the Government

agrees statements and information contained in your client's

proffer may not be used in the Government's case-in-chief

against your client should your client be held for trial.

So it isn't a confession. It's a proffer. It's confusing

for the jury to have Mr. Bloom continually go over this

activity. He has a copy of the letter. He knows it's not a

confession. It's a different breed of cat.

It's just misleading, besides the fact that all of the
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2137

questions are improper given that it's direct examination of a

witness he called.

MR. BLOOM: I can't imagine that this can be possibly

objectionable. The point of my question is, you understood

that she was going to perhaps, or very likely, tell you of her

involvement in a crime.

Next question, is there a reason you didn't get in touch

with the Special Agent in charge and say you might get a

confession here, or a statement admitting to the facts of the

crime; I think it's something we should tape.

It's as simple as that. I am allowed to ask him whether

he did that, yes or no.

MR. BARTLETT: I have no objection if that in fact

had been the question. If the question had been, did you

understand that there was going to be a statement that

couldn't be used directly against her during a trial, but

could have been used indirectly.

That's actually the description of what was going on. As

a result of that, did you ask to tape it. There's nothing

wrong with that.

His problem is that he continually calls it a confession.

By its definition, a proffer session is not a confession.

THE COURT: Is there any confusion as to the proffer

and a confession?

MR. BLOOM: No, the confusion is this.
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2138

THE COURT: I understand, but I am trying to ask you

a question and maybe I can get you to answer my question.

MR. BLOOM: Sure.

THE COURT: In your mind, is there any difference

between a confession and a proffer session? If you really

want to know why they didn't -- would they have been better

off if they had taped it, you've asked that question many

times, and the answer keeps coming up no, we didn't tape it.

We don't do that.

Then it becomes argumentative. Well, they would have been

better off if they had taped it, then we wouldn't have this

confusion, but that's argument. That's what I mean by asking

the same question over and over and getting the same answer.

MR. BLOOM: I talked about that with regard to the

other witness. I am through with that. I am now asking with

regard to this witness. She was there on February 21st with

an expectation or even the possibility that she was going to

say what she did, whether you call it a confession, a sugar

pop, I don't care what you call it. If she was going to say

something about yes, I did that crime, why isn't that on tape?

Why didn't they make efforts?

THE COURT: You can ask that question in that way,

but you are going into explaining a proffer and what it is and

what's the difference.

MR. BLOOM: No, I am not. He's doing that. He's
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2139

standing up and talking about proffers.

THE COURT: Mr. Bloom, let me rule this way. Ask the

question whether or not they taped it or had the opportunity

to tape it and why they didn't tape it and get your answer.

MR. BLOOM: That's all I want to do, and I keep

getting interrupted.

THE COURT: Let's do this. Let's take the morning

recess.

MR. BARTLETT: Thank you, Your Honor.

THE CLERK: All rise. Court is in recess.

(Morning recess.)

THE COURT: You may be seated.

Bring them in.

(Jury present.)

THE COURT: All right. You may be seated.

MR. BLOOM: Yes, sir.

THE COURT: Mr. Bloom.

BY MR. BLOOM:

Q. Agent Torres, during this recess, did you have occasion to

speak with Mr. Bartlett?

A. I did.

Q. About how many different times did you speak with him in

these 20 minutes or so?

A. Two or three different times.

Q. At times did he show you documents?
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2140

A. He did.

Q. Did you discuss your testimony or were you talking about

the Mariners or the Red Sox?

A. I definitely wouldn't talk about baseball. We talked

about how things were going in general, not the substance of

my testimony, how things were going in general. I believe he

showed me a 302, which I was present at.

Q. In general, he showed you a document relating to this

case, right?

A. Agent -- I reviewed -- he asked me if I was involved in an

interview on March 21st, and I was.

Q. That was just now, just before the jury came in?

A. That's correct.

Q. Before that, about three minutes before that, you were

standing right near the edge of the jury box and he came over

to you, right?

A. That's correct.

Q. Did he say something to you, just yes or no?

A. Yes.

Q. About this case?

A. It had to do with the case, yes.

Q. About your testimony?

A. Not necessarily about my testimony, about the case.

Q. Prior to that, did you have a discussion with him at the

desk area?
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2141

A. I believe so.

Q. Now, we were talking about Lacey Phillabaum, February

21st, the interview at the U.S. Attorney's Office.

Now, I think you were describing that as a proffer

session?

A. Correct.

Q. Am I correct that the proffer is a document that's

prepared by the Government and provided to the witness and her

lawyer?

A. Correct.

Q. Here's my question: Did you expect at that time that it

would well be that she was going to admit to her participation

in one or more crimes?

A. Yes.

Q. Did you make any effort to speak to a Special Agent in

charge to get permission to tape-record what might be an

admission to crimes?

A. I would never have done that.

Q. The answer is no, you didn't do it; is that correct?

A. That's correct.

Q. There are provisions, am I not correct, in the FBI

regulations that prescribe just how you do that if you want to

do it?

MR. BARTLETT: Objection, we've gone over this

several times.
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2142

MR. BLOOM: We've gone over it with regard to the

other witness.

THE COURT: Answer the question.

A. What's the question?

BY MR. BLOOM:

Q. There are provisions in the FBI regulations, and I think

we particularly referred to Exhibit A-213, that provide how it

is done if you want to do it.

A. That's correct.

Q. It's there, and it's covered in the regulations, right?

A. Yes.

Q. Just one last question on that. The reason you might want

to have a tape recording is so there would not be any

confusion about what the person said; is that correct?

A. That would be the result of a recording that her or his

exact words would be recorded.

Q. You talked about confusion with the other witness, Kolar,

on December 16th. Having already had that experience, did you

not think it was a good idea to tape-record this one and there

won't be any confusion?

A. It never even crossed my mind.

Q. Because you don't want to create a tape recording with

which the person can be impeached later on if there's a trial

and she testifies. That's really what is going on, isn't it?

A. Because it's the FBI's policy not to record interviews,
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2143

confession, proffer. I haven't done one in 11-and-a-half

years, nor have I known anyone to.

Q. It's the FBI's policy so the defense witness can't nail

your witness?

THE COURT: It's argumentative, Counsel.

BY MR. BLOOM:

Q. Now, you came to learn on February 21st, or sometime

before February 21st, of the personal history of Lacey

Phillabaum; is that correct?

A. I don't think it was before February 21st, but I believe

it was on that day.

Q. You came to learn that she was a smart person, graduated

from college in three years, with honors?

THE COURT: Hasn't that been asked and answered?

MR. BARTLETT: It's improper. It's hearsay from this

witness.

THE COURT: The witness answered. Do you want him to

say that again? Say it again.

A. Yes, sir. I did come to learn that she was an educated

person, yes.

BY MR. BLOOM:

Q. You learned she was involved in ski racing; is that

correct?

A. I have some recollection of that, yes.

Q. She didn't have a yacht, right?
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2144

A. I don't know. I don't think so.

Q. Did she tell you on February 21st -- feel free to look at

Exhibit A-113 if you need to refresh your recollection -- did

she tell you that she went with Chelsea Gerlach and Stan

Meyerhoff on some date?

A. Prior to the arson?

Q. Yes. If you look at the first page of the 302, toward the

bottom.

A. Yes. It says while working at EFJ, which stands for Earth

First Journal, Phillabaum met Chelsea Gerlach and Stanislas

Meyerhoff.

Q. Did she volunteer to you that the she, Lacey Phillabaum,

may have felt competitive with Gerlach?

A. No, I don't recall that at all.

Q. Take a look at the next to last line.

A. Oh, that's what it says, but I don't recall that. It says

"Phillabaum noted she may have felt competitive with Gerlach."

That's the first time that refreshes my memory.

Q. And the competitive was about that she, Phillabaum,

eventually became involved with Gerlach's boyfriend,

Meyerhoff?

A. Perhaps. Again, I don't recall the nature of the

competitiveness, but I don't know. If you have something that

can refresh my memory.

Q. Well, does this refresh your memory where you have put in
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2145

your 302 that Phillabaum noted she may have felt competitive

with Gerlach? Does that refresh your memory about what it's

about?

A. It does.

Q. What was it about?

A. What was what about?

Q. The reason she was competitive.

A. I am not sure the reason why she was competitive. I have

come to learn that Lacey Phillabaum has become involved or

dated Meyerhoff.

Q. Stan Meyerhoff?

A. Yes. Yes.

Q. And that had been Chelsea's boyfriend, right?

A. Well, yes.

Q. Did you come to learn that in 1999 Lacey Phillabaum had

traveled to Europe for six months? If you look at page 2.

MR. BARTLETT: Objection, Your Honor, simply

irrelevant from this witness.

THE COURT: I agree. Next question.

BY MR. BLOOM:

Q. Did she tell you about her participation at the WTO

demonstrations in the year 1999?

A. She did.

Q. Did she tell you that her role was to help with sleeping

arrangements?
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2146

A. I believe that's correct, yes.

Q. Did she tell you on that day, February 21st of '06, words

to the effect that there's nothing in the world like running

with a group of 200 people, all wearing black, and realizing

each of you is anonymous, each of you can liberate your

desires, each of you can make a difference right there,

because everyone has your back, everyone is there together,

everyone is there for the same reason? And then to do that in

the middle of, you know, the most intense police presence in

downtown Seattle, they did that despite the cops being there

and they did it under the watching gaze of the cops because it

couldn't be stopped.

Did she tell you anything like that on February 21?

A. Where are you reading that from, sir?

Q. I am reading it from another document.

A. I don't recall that.

Q. In fact, she did not tell you, other than she helped with

sleeping arrangements, she didn't tell you anything other than

that about her participation in those events?

A. She told us she helped with sleeping arrangements, and I

believe that is all.

Q. Did she tell you on that date, February 21st, that she had

a job at the Cville, meaning Charlottesville, Virginia,

Weekly, I think it's called. Did she tell you it didn't work

out?
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2147

A. Are you reading that from this 302, sir?

Q. I am not sure if it's there or not. Did she tell you

anything like that either on that day or any other day?

A. I vaguely remember something like that. I don't know.

Q. Did she tell you that in fact it didn't work out because

she went to an interview when she was drunk?

MR. BARTLETT: Objection, Your Honor. He has no

knowledge of this. The witness didn't testify with regard to

that.

BY MR. BLOOM:

Q. Did she tell you? That is my question.

A. No. I see in this paragraph where it says she took a job

with the Cville Weekly. This job did not work out and

Phillabaum was fired in May of 2005.

Q. What page are you reading from?

A. Page 3.

Q. She didn't tell you anything about either being drunk or

accused of being drunk; is that correct?

A. That's correct.

Q. She did tell you on that day, February 21st, that there

were five book club meetings and that Briana -- she was at all

of them and Briana was not at any of them?

A. Well, I need to -- she said there was five meetings,

Eugene, Oregon -- first meeting, March 2000 in Eugene, Oregon

at a hotel. It says Phillabaum recalled the following persons
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2148

at this meeting: Lacey Phillabaum, Avalon, Jeff Hogg, Spring,

Al Decker and Ragweed.

Second meeting occurred at Tucson, Arizona. She recalled

the following persons: Lacey Phillabaum, herself, Rod

Coronado, Jeff Hogg, Hazel, Avalon, Chelsea Gerlach, Daniel

McGowan, Spring.

She recalled two guys from Santa Cruz, names unknown,

being at the meeting. Santa Cruz, this meeting occurred in a

hotel. She recalled the following persons at this meeting:

Lacey Phillabaum, Avalon, Stanislas Meyerhoff, Jeff Hogg,

Hazel, Chelsea Gerlach, Diver, The Mupins.

Olympia, no details were discussed during the Olympia

meeting due to time constraints.

Sisters, Oregon, she recalls that this meeting occurred

shortly after the University of Washington arson and she did

not elaborate further.

Q. Did she at any time identify or say in any way that Briana

Waters was in any of those, either book club meetings or

incubator meetings?

A. Briana Waters is not listed in any of those names.

Q. Now, did the discussion then turn to the University of

Washington arson? If you look at page 5 of the document.

A. Yes.

Q. Did she tell you -- looking on page 6, that is Lacey

Phillabaum -- did she tell you that she was dropped off at a
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Denny's or a Perkins restaurant in Olympia, Washington?

A. On page 6, it says Phillabaum was dropped of at a Denny's

or Perkins restaurant in Olympia, Washington.

Q. I would just ask you, rather than reading, if you would

read to yourself unless and until this is in evidence. I am

just asking you to use it to refresh your recollection.

Does it refresh your recollection that she said to you and

the other people in the conference room of the U.S. Attorney's

Office, that she was dropped off at a Denny's or Perkins

restaurant in Olympia, Washington?

A. Yes.

Q. Then did she at some point, right after she told you that,

volunteer to you that she recalled that Briana and Connor had

recently broken up?

A. Yes.

Q. You didn't ask her that, did you?

A. No recall how that was asked.

Q. You wouldn't have asked that, she volunteered that, just

as she had volunteered that Chelsea Gerlach and Stan Meyerhoff

were at the end of their relationship?

A. I don't know if she was asked or if she volunteered it.

Q. This was having heard about the competitiveness of Chelsea

Gerlach --

MR. BARTLETT: Objection, this is just argumentative.

BY MR. BLOOM:
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Q. Having heard about the competitiveness with Chelsea

Gerlach that came from the words of Lacey Phillabaum, and the

statement here that Briana and Connor had recently broken up,

did it occur to you that this is a woman who gets involved

with other women's men?

A. No.

Q. Now, did she say on that day, February 21st, that the plan

for the arson was laid out by Avalon?

A. Yes.

Q. Did she tell you that she wasn't sure that Kolar was

there?

A. Diver -- who we've come to know is Kolar -- says it was at

one of the meetings that weekend but Phillabaum does not

recall which one.

Q. Do you remember her telling you, she's not sure if Kolar

was there at the meeting where the plan was laid out by

Avalon?

A. That's what she says. She does not recall which one.

Q. Now, you've seen a manual how to do these arsons that was

written, as you understand it, by Rodgers and Meyerhoff; is

that correct?

A. I have seen parts of it.

Q. Are there parts of it that say everybody has to be

together at all the meetings and the planning --

MR. BARTLETT: Objection, Your Honor.
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2151

THE COURT: Let me hear the question, then I will

take the objection.

BY MR. BLOOM:

Q. Does it say in what's called the manual, the how-to book,

that the planning has to be done with all the people present

so that everybody is on the same page?

MR. BARTLETT: Objection, Your Honor, the manual

speaks for itself.

THE COURT: Sustained. It speaks for itself.

BY MR. BLOOM:

Q. Do you have any recollection of the manual talking about

those issues?

A. I do not.

Q. Now, do you remember on February 21st, talking to Lacey

Phillabaum, that she told you -- if you would look at page 7,

did she tell you, about the 5th line down, that at the arson,

she claimed, on that day, February 21st of '06, that Briana

and Connor were the lookouts?

A. Briana and Connor were the lookouts.

Q. That's what she told you. Did they say -- did she say

rather on that day to you in that conference room, at the U.S.

Attorney's Office, that her recollection was that Briana and

Connor were the lookouts?

A. Yes.

Q. Did she also tell you that the evening of the arson,
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2152

Avalon and Connor had dropped off the bags there earlier in

the evening?

A. Are you referring me to that paragraph?

Q. Yes. If you look at the second paragraph, third line.

A. Yes.

Q. Did you or anyone else in the room ask her well, when did

that happen? Did it happen before you met with Kolar at the

restaurant? Did anyone ask her that question?

A. I don't recall.

Q. That would have been important?

A. Perhaps, but I don't recall if it was asked or not.

Q. You say perhaps. You wanted the details of what happened

at the arson, right?

A. She was providing details.

Q. Did you ask her, when she said it had been dropped off

earlier, did you ask: Well, is there a time when you were not

in the car or the van and they went and did something? Were

you present? Tell us what you remember. Were you present

when that event happened? Did you ask her that question?

A. I don't recall.

Q. A tape recording would help?

A. Yes.

Q. You weren't taking notes by this time, right?

A. I don't believe I was.

Q. Did you ask her, at any time before you met with Kolar in
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2153

the restaurant -- she did tell you they met Kolar at the

Greenlake restaurant, right?

A. The Greenlake Bar & Grill, yes.

Q. Did you ask her: How did it come to be -- who dropped off

this equipment and when did it happen and who was there? Did

you ask her any questions about that?

A. About the circumstances of the bags being dropped off?

Q. Yes.

A. I don't recall.

Q. Now, she also told you that Connor had dumpster dived for

some equipment; is that correct?

A. I recall that, yes.

Q. Was that on that same day, February 21st, she told you

that?

A. I recall that statement. I don't remember exactly which

date it was. I am looking for it here on the 302. Is it on

the 302? I don't see it on that page.

Q. Yes, I am looking for it too. If you look at the page

before, page 6, in the last paragraph, the second sentence.

A. Yes. Connor dumpster dived for hydro-bags for carrying

the fuel.

Q. What if he couldn't find any hydro-bags, or whatever they

are, in the dumpster, what were you going to do then?

A. No, I don't recall her being asked that.

Q. What did dumpster diving mean to you when she told you
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2154

that?

A. Going through large dumpsters behind businesses or

commercial businesses or commercial establishments. Garbage

dumpsters, looking inside of them for materials.

Q. So they were, as she was explaining to you -- they were

taking a chance and hoping that he would be able to find some

appropriate equipment to use in the arson; is that correct?

A. By taking a chance, by dumpster diving?

Q. Taking a chance they might not find what they needed.

MR. BARTLETT: Objection, argument.

MR. BLOOM: It is not argument. I am asking a

question. Did they ask her about that?

THE COURT: Well, did you ask her about it?

A. I don't recall asking her if they were taking a chance.

THE COURT: All right. Next question.

BY MR. BLOOM:

Q. Now, did she tell you something on that day about a clean

room?

A. She did -- yes.

Q. I am going to read to you from an exhibit in evidence,

Exhibit A-99. Do you have that in front of you?

A. A-99?

Q. Yes.

A. I don't see A-99. Yes, I have it here.

Q. Could you take a look at -- first, is that document
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2155

entitled "Setting Fires with Electrical Timers, an Earth

Liberation Front Guide"?

A. Yes, that's what it's called.

Q. It's dated May 2001?

A. That's correct.

Q. As you understood it, that was a document created by

William Rodgers and Stan Meyerhoff; is that correct?

A. I don't know who created this document.

Q. Could you turn to the lower right-hand corner, page

00722 --

A. Yes.

Q. It says "Creating a Clean Room," right?

A. Yes.

MR. BARTLETT: Objection, Your Honor. The document

speaks for itself. With regard to what Ms. Phillabaum

described, if there's a prior inconsistent statement with

Ms. Phillabaum, that's fair game, but this is just argument.

This document, which speaks for itself says, and what

Ms. Phillabaum testified to --

THE COURT: Let's see what the question says,

otherwise it speaks for itself, I guess. The question on

this, Mr. Bloom?

BY MR. BLOOM:

Q. Could you read the very first sentence that I am pointing

to?
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2156

A. "To set up a clean room, choose a location where your

hair and skin flakes are not already floating around."

Q. Now, am I correct that that would seem to exclude a place

where one of the participants had been living?

A. Not necessarily, no.

Q. If a person is living there, their hair and skin flakes --

wherever you live, their hair and skin flakes, as you

understand it, would be floating around?

MR. BARTLETT: Objection, this is argumentative.

MR. BLOOM: He can't just say it's argumentive, a

question I am asking of this witness.

THE COURT: I know you are asking a question. It may

be of general knowledge if you live in a house, it's in there.

So I am trying to understand why are we going over the

question in this fashion?

MR. BLOOM: I have never asked him this question.

THE COURT: Ask the question. He gave you an answer,

but you don't like it.

MR. BLOOM: He didn't give an answer. There was an

objection.

THE COURT: Do you want the question back?

COURT REPORTER: "Question: If a person is living

there, their hair and skin flakes -- wherever you live, their

hair and skin flakes, as you understand it, would be floating

around?"
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2157

BY MR. BLOOM:

Q. Right. Where you live, I live, where anybody lives, your

hair and skin flakes would be floating around; is that right?

A. Yes.

Q. From this excerpt in the manual, that's something that

should be avoided, creating a clean room and building devices

in a place where a participant lived?

THE COURT: That's argumentative now. He's answered

it.

BY MR. BLOOM:

Q. At some point, I am going to read from -- there's another

Exhibit, 515-I. Could you take a look at that, please? It's

also more or less a manual.

A. 515-I?

Q. Yes, sir. I would ask you to look at -- there are no page

numbers, but there are section numbers. About three-quarters

of the way into the document, there is a Section 6.4 called

"Drop offs and safe places to park."

MR. BARTLETT: Objection, this document speaks for

itself. If this witness has no -- he doesn't have personal

knowledge with regard to these events. That would be the only

relevant question.

THE COURT: That's what he asked him, what do you

know about it.

BY MR. BLOOM:
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2158

Q. I would ask you to take a look at the document that I put

up on the screen. It says, "A lookout arrives at the drop-off

ahead of time by foot or bicycle."

A. That's -- I have never seen this document before. I don't

even know what this is. The sentence you took off the

screen --

Q. I am sorry, I was going to move on to something else, but

please tell us.

A. The sentence reads, "The lookout arrives at the drop-off

ahead of time by foot or bicycle."

Q. The story Lacey Phillabaum told you was different than

that; is that correct?

A. I am not necessarily sure. What do you mean?

Q. She told you that five people drove up to the scene at the

same time, right?

A. That they drove in the same vehicle from the Greenlake Bar

& Grill?

Q. Yes, sir.

A. Yes.

Q. She claims one of the people in the car -- or at some

point, she claimed that two of the people in the car were

lookouts?

A. That's correct.

Q. And they didn't arrive, according to her story, on foot or

bicycle ahead of time, right?
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2159

A. I don't know what she testified to.

Q. What she told you on February 21st, aside from what she

testified to, she didn't tell you on February 21st that

either -- that any lookout, Briana Waters, Connor or anyone

else, arrived ahead of time by either foot or by bicycle. She

didn't tell you that?

A. On the February 21st interview?

Q. Yes, sir, or on any other interview.

A. It says they went from the bar, carpooled in a rental car,

drove to a dead-end street where they were dropped off.

Q. She doesn't say anything about any lookout or lookouts,

one or two people getting there ahead of time by foot or by

bicycle?

A. I don't see that.

Q. You don't see it because that's not what she said. Let's

move on. Did she say to you on February 21st that she saw a

bike and she told Diver about it?

If you look on page 7 of the 302 in the second paragraph,

right in the middle of the second paragraph. Just to refresh

your recollection.

Did she tell you that while she was crouching down and

watching the building, she recalled seeing a bicycle parked

and that she talked to Diver about it?

A. Yes.

Q. So from your understanding of what Lacey Phillabaum was
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2160

telling you on February 21st, not only was she and Kolar there

together, but they actually had a conversation right there in

front of the building they burned down?

A. That's what that would say.

Q. So did you think back when she was telling you that on

February 21st, how come Kolar doesn't remember her being

there? Does that strike you as odd?

A. No. My experience is that two different witnesses often

have two different accounts of the same event, just as Agent

Halla and I had two different accounts of the same event on

December 16th.

Q. Including who was there?

A. Possibly.

Q. We are talking about Kolar, a Ph.D. candidate, a really

smart person. She's saying, I don't remember Lacey Phillabaum

being there, and now you learn that there was actually a

conversation between them, Phillabaum and Kolar, just before

they actually torched the place?

A. That's what Phillabaum is telling us.

Q. Right?

A. Right.

Q. So the connection wasn't just that they were not just

there together, there was actual conversational interaction

between the two women just before they laid the place to

waste?
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2161

A. According to Ms. Phillabaum, they had, apparently, a

conversation regarding a bicycle. The extent of that

conversation, I don't know. Like I said, two different people

are going to have two different accounts of what happened.

Ms. Kolar, from the very beginning, said her memories from

that event were fuzzy. I can't explain that.

Q. This is not about what kind of wine Kolar had at her yacht

club. This is about the people with whom she burned down a

building.

MR. BARTLETT: Objection, Your Honor. That's not

even a question for him to answer. He's asking this witness

to go into Jennifer Kolar's mind and explain what's going on.

It's simply improper.

THE COURT: Next question.

MR. BLOOM: Judge, I object to both the objections

and the speeches that he makes. If he doesn't want the jury

to hear this --

THE COURT: You are giving me one now. You are

asking him to explain something, so ask the next question and

let him answer and accept the answer.

BY MR. BLOOM:

Q. Did she tell you on that day that the rental car may have

been white in color?

A. Yes.

Q. She didn't say to you, did she, that I remember it being a
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2162

two-tone car?

A. I don't recall that.

Q. You've seen the picture of the car that's now in private

hands in the State of Wisconsin, right?

A. I am not sure if I have or not.

Q. You know there was some investigation of the Budget

people, and one of them reported -- gave you information about

whether or not there were two-tone cars that were available

for rental in May of '01 at the Olympia office of Budget?

A. I don't believe I conducted that investigation.

Q. Did you come to learn of it?

A. I don't recall that.

Q. Did Lacey Phillabaum tell you that Connor side-swiped a

car? Did she tell you that on February 21st? If you look on

page 7, the next-to-last paragraph or the last full paragraph.

"While driving away, Connor side-swiped a parked car."

A. Yes.

Q. Did she say and did she use the word "damaging both

vehicles"?

A. That's what it says in the 302. I don't know if that's

verbatim, but that's what we refer to her saying.

Q. The concept that you and Agent Halla decided to write is

that both vehicles were damaged?

A. Yes, that's what it says.

Q. Did she describe it on February 21st as something huge?
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2163

A. Huge?

Q. Yes. Did she use the word "huge," the event was huge in

her mind?

A. I don't recall that.

Q. Did you check with Budget, you and Agent Halla and any

other investigative officers -- check to see whether there was

any, eventually, report of damage that was filed after you

zeroed in on Budget? Did you try to find out if there was

damage?

A. I did not. I know Special Agent Halla did. I don't know

the exact conclusions that came from that.

Q. Did you investigate whether or not there were any cars

that had been in the area of the arson where there had been

reports of damage, hit and run damage?

A. I don't know exactly. I seem to recall Agent Halla

talking about that, but I don't know what investigation he

did.

Q. Did that lead anywhere, so far as you remember?

A. I don't know.

Q. Did the FBI conduct a canvass of the area, after speaking

with Phillabaum and Kolar, to learn -- let me withdraw that.

Kolar doesn't remember that at all, right?

A. I believe so.

Q. Did you -- after speaking with Phillabaum, did you

discuss -- did you canvass -- let me withdraw that.
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2164

Did you ask her to pinpoint the area where the accident

she said happened, would have been?

A. I don't recall. I don't know if Agent Halla may have done

that or not.

Q. One of the things that the FBI does is they do conduct a

canvass of the neighborhood to get information where it's

appropriate, right?

A. Where it's appropriate.

Q. Was there any canvass that took place of that neighborhood

to find out if there had been any hit and run event that had

damaged a parked car?

A. I don't know if there was or not. If there was, I wasn't

a part of it.

Q. Now, the FBI has a very good laboratory, doesn't it?

A. It has a lab.

Q. Better than CSI?

A. I don't know if anything is better than CSI.

Q. CSI is pretty good, they do whatever they want and they

get results?

A. Exactly.

Q. The FBI has a good laboratory too?

A. It's a good lab.

Q. They can analyze metallurgical damage on a fender if need

be?

A. What kind of damage?
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2165

Q. Metal damage, the fibers of the metal being dented if

there's been damage to a fender?

A. I don't know.

Q. Did you make any efforts, or did Agent Halla or any of

these two prosecutors, make any efforts to have that car

tested by the FBI lab in order to ascertain whether or not

Lacey Phillabaum was accurate in her recollection?

A. I did not make that request.

Q. Did you come to learn that we, Mr. Fox and I, had asked of

the prosecutor whether such examination had been conducted?

A. No, I have no idea.

Q. Now, you came to learn during this investigation that a

number of the actions, whether they be arsons or crop pulling

or girdling -- the perpetrators involved in this group used

their own cars at times; is that correct?

A. Yes, I believe so.

Q. At Susanville, they used Dibee's car and Meyerhoff's car,

right?

A. I recall Mr. Dibee's car was involved, yes.

Q. The fourth arson committed by, not necessarily

chronologically, but one of the arsons committed by Kolar, the

Wray Gun Club in Colorado, she used her own car?

A. I don't know about that.

Q. Now, there was some searches conducted, and at the search

on December 7th or shortly thereafter, December 7th of '05, in
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2166

Arizona, Mr. Rodgers' place of business and residence was very

thoroughly searched, right?

A. I believe so, yes. I wasn't there, but it was searched.

Q. In all the documents and all the computer disk searches,

there was one mention of Briana Waters and it was a footnote

referring to her documentary that was called "Watch"; is that

correct?

A. I believe so.

Q. The search of Justin Solondz' cabin in the year 2007,

almost five years after the incident, there was some

literature seized; is that correct?

A. I wasn't there at the search. I know there was a map

seized. I know there was some caps, I believe, wool caps and

stocking caps seized. I can't recall exactly what was seized;

I wasn't there.

Q. This was four-and-a-half years later; is that correct?

A. I think so.

Q. I am sorry?

A. I think so.

Q. And there came a time when somebody decided to take a

photograph of some of the literature that was seized?

MR. BARTLETT: Objection, Your Honor, he wasn't even

at the search.

THE COURT: He wasn't there. Ask him something about

what he participated in.
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2167

BY MR. BLOOM:

Q. Did you see a photograph of materials and magazines where

the one put on top by somebody says "Anarchy"?

A. I don't recall seeing any photos from that search.

Q. Was there any discussion about, let's make a photograph

and let's put the "Anarchy" magazine right out in front

because that will really get a jury?

A. I wasn't at that search, and I did not have that

conversation with anyone.

Q. Now, in order to get -- let me withdraw that. Just a

couple more questions.

The FBI's job in this investigation, and every

investigation, is that's what you do, you do the

investigations, right?

A. Correct.

Q. You don't make decisions -- you follow leads, but you

don't make decisions about who's going to be prosecuted,

right?

A. Correct.

Q. That's up to the Department of Justice, the United States

Department of Justice, right?

A. Yes.

Q. In the year 2006, the Attorney General at that time was a

person named Alberto Gonzales?

A. In 2006?
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Q. Yes.

A. I believe so.

Q. So it was the decision of the United States Department of

Justice, not the FBI, about who was going to be prosecuted,

right?

A. I am not sure it went up to that level. I think it stayed

at the level of the United States Attorney's Office in the

Western District of Washington.

Q. The United States Attorney's Office in the Western

District of Washington is under the jurisdiction of the United

States Department of Justice which was headed by Alberto

Gonzales, and the President was and still is George W. Bush;

is that correct?

A. Yes.

MR. BLOOM: I don't have any more questions.

If you'll give me a minute, Mr. Bartlett, to clear my

stuff out.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. Just briefly, Special Agent Torres. During the -- I was

going to say cross-examination, that would be wrong.

During your examination by Mr. Bloom, there was lengthy

discussions about the December 16th interview in 2005 with

Jennifer Kolar. Do you recall that?

A. Yes.
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2169

Q. At one point, you made a statement, and I am paraphrasing,

"there was no reason to believe that Mr. Dibee was involved in

the University of Washington arson."

Do you recall that?

A. Yes.

Q. Can you explain what was in your thought process and why

you thought that?

A. What was in my thought process --

MR. BLOOM: I am going to object on the same grounds.

THE COURT: You raised the answer, so he may answer.

A. My thought --

THE COURT: Your objection is noted.

A. My thought process was Ms. Kolar, during that interview,

had already given up Joseph Dibee for the Cavel West arson.

She had already given him up for the Susanville arson, so why

protect him on the UW arson.

Q. She could have been, but that was your thought process?

A. Exactly.

MR. BLOOM: Excuse me, I asked a dozen questions

about thought process and there was an objection every time,

and it was sustained every time.

THE COURT: You've made your objection.

MR. BLOOM: I am just asking the Court to strike that

and not to permit any questions about his thought process

unless I get to ask about thought process.
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2170

THE COURT: You've made your objection. I have ruled

on it. So let's move on to the next question.

MR. BARTLETT: May I approach, Your Honor.

BY MR. BARTLETT:

Q. I am bringing up what's previously been marked 114 and

117, and I am providing another copy for the Court.

BY MR. BARTLETT:

Q. Taking a look at the document marked first Government's

Exhibit 114. Could you go through that? I believe it's a

three-page document.

THE CLERK: It's 1114.

BY MR. BARTLETT:

Q. What did I say? I apologize, 1114.

A. Yes, I have this. This is a U.S. Department of Justice

proffer letter that was provided to Jennifer Kolar on December

16, 2005.

Q. Is it signed?

A. It is signed by Mr. Andrew Friedman, it is signed by

Jennifer Kolar, and it is signed by Michael Martin.

MR. BARTLETT: Offer Government's Exhibit 1114.

MR. BLOOM: Even though Mr. Bartlett did give it to

me --

MR. BARTLETT: I have an extra one.

MR. BLOOM: Let me take a look at it, and I will give

it back to you. Thank you.
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2171

THE COURT: He's offering that. Any objection to

that?

MR. BLOOM: No objection.

THE COURT: It is admitted.

(Exhibit No. 1114 admitted.)

BY MR. BARTLETT:

Q. Prior to speaking with Ms. Kolar on December 16th, was

this the letter that was signed?

A. Yes.

Q. And that you've been referring to as the proffer letter?

A. Yes.

Q. We can just go through this. It's dated December 16th,

right?

A. December 16, 2005.

Q. If you can just read the paragraphs, the first paragraph.

A. "The government requests that your client, Jennifer Kolar,

provide a proffer of information, by way of an in-person

interview, relating to the ongoing investigation into arsons

committed in the names of environmental or an animal-rights

activism. This letter sets forth the ground rules covering

the proffer of information by your client to the Government."

Q. No. 1, the purpose.

A. The purpose -- read it? "The purpose of your client

making a proffer is to provide the Government with an

opportunity to assess the value, extent and truthfulness of
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2172

your client's information about the potential criminal

liability of your client and others."

Q. Could you clarify for the jury, at the time on December

16th when this proffer letter was presented to Ms. Kolar, is

there already a plea reached?

A. No plea agreement, no contract, no deal. It's just her

coming in and giving us information.

Q. No. 2.

A. "No. 2. Your client's proffer must be a complete and

entirely truthful account, with no material misstatements or

omissions of fact, regarding arsons and all wrongdoing

committed by your client and others. A knowing, material

false statement or material omission may result in prosecution

of your client under federal criminal laws."

Q. No. 3.

A. "No. 3. No promises: While your client hopes to receive

some benefit by agreeing to be interviewed, your client

expressly understands that the Government is making no promise

of any consideration."

Q. No. 4?

A. I am going to have to read this from my hard copy.

Q. I can move it up.

A. "No. 4. No direct use: The Government agrees that

statements and information contained in your client's proffer

may not be used in the Government's case-in-chief against your
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2173

client, should charges be filed and a trial held."

Q. What does that mean?

MR. BLOOM: I am going to object to that.

THE COURT: I think it speaks for itself.

BY MR. BARTLETT:

Q. No. 5?

A. "Impeachment: If your client should testify materially

contrary to the substance of the proffer, or otherwise present

in a legal proceeding a position materially inconsistent with

the proffer, the proffer may be used against your client as

impeachment or rebuttal evidence, or as the basis for a

prosecution for perjury or false statement. Nothing in this

letter is intended to preclude your client from challenging

the sufficiency of the Government's evidence; calling into

question the credibility of the Government witnesses;

questioning Government witnesses about their knowledge and

qualifications; challenging inconsistencies in the

Government's evidence, or challenging Government's witnesses

about their motives for testifying against your client."

Q. No. 6?

A. "Derivative use: The Government may make derivative use

of, and may pursue investigative leads suggested by any

statements or information provided by your client's proffer.

This provision is necessary to eliminate the necessity of a

Kastigar hearing wherein the Government would have to prove
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2174

that the evidence it seeks to introduce at trial or in a

related legal proceeding is derived from a 'legitimate source

wholly independent' of statements or information from the

proffer."

Q. No. 7?

A. "7. Sentencing information: Your client understands that

if he is indicted and convicted, the Government, pursuant to

18 U.S. Code Section 3661, must provide the contents of the

proffer to the sentencing judge. Pursuant to the United

States -- U.S.S.G. 1B1.8, however, the proffer may not be used

to determine the appropriate guideline sentence, except as

stated in the 'impeachment' paragraph above."

Q. No. 8?

A. "Brady discovery: Your client understands that Brady v.

Maryland and its progeny require that the Government provide

any charged defendant all information known to the Government

that tends to mitigate or negate such defendant's guilt.

Should your client's proffer contain Brady material, the

Government will be required to disclose this information to

the appropriate defendants."

Q. Finally, 9?

A. "9. Full agreement: This letter sets forth and

constitutes the full and complete agreement of the parties."

Q. Does Ms. Kolar and Mr. Martin's signature appear on the

third page?
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2175

A. Yes, they are both on this page.

Q. Taking a look at Government's 1117. Is that the proffer

letter for Lacey Phillabaum?

A. Yes.

MR. BARTLETT: Offer 1117.

MR. BLOOM: No objection.

THE COURT: Admitted.

(Exhibit No. 1117 admitted.)

BY MR. BARTLETT:

Q. This is identical, with some minor changes in paragraph 5?

A. It is identical, but paragraph 5 impeachment --

Q. It looks like a shorter paragraph?

A. It's a shorter paragraph.

Q. There was discussion immediately after the morning break

about you and I having conversations during the morning break?

A. Yes.

Q. Was the conversation that you and I had and the documents

I showed you relating to these two letters so I could show you

ahead of time what I was going to ask you?

A. Yes.

Q. There was questions during Mr. Bloom's direct examination

of you relating to a photograph of Justin Solondz shown to

Jennifer Kolar on February 4th.

Do you remember those series of questions?

A. Yes.
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2176

Q. I want to clarify for the jury, what photograph was shown

to Ms. Kolar on that day? Was it the short hair Mr. Solondz

or the long hair Mr. Solondz?

A. I believe it was the short hair.

Q. When you say you believe that, why do you say that?

A. Because of a photo that I have seen -- I remember her

later on being shown a photo of him with long hair and

becoming more familiar with that photo than the short hair.

Q. Prior to testifying, did I ask you to look at the 302 from

February 4th and the photographs that were attached to refresh

your recollection as to what photograph?

A. That's correct.

Q. That's the discussion we had also during the break?

A. Yes. That's correct.

Q. Just for the record, if we could produce Government's

1011-C, which I believe is already admitted into evidence.

If the witness could be handed 1011-C.

Do you recognize that?

A. Yes, I do.

Q. What is it?

A. This is the picture of Justin Solondz with short hair.

Q. A copy?

A. A copy of a picture.

Q. This is what was shown to Jennifer Kolar on February 4th?

A. Yes.
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2177

MR. BLOOM: Objection, that was his testimony, he

wasn't sure.

THE COURT: Well, ask the question again and let's

get the answer.

A. I believe this was the picture shown to Ms. Kolar.

BY MR. BARTLETT:

Q. Referring to the 302 and the attachments to the 302 of

February 4th, did that provide you certainty?

A. I believe it was photo No. 4 shown to her and that's when

she said no.

MR. BARTLETT: Offer Exhibit 1011-C.

MR. BLOOM: I object. He's not identified that as

that's the one shown. He said he isn't certain.

MR. BARTLETT: Withdrawn.

THE COURT: All right.

BY MR. BARTLETT:

Q. There was a number of questions during your direct

examination of Mr. Bloom regarding your failure to ask

directly to Ms. Kolar whether Briana Waters was the lookout.

Before any discussion on January 6th or 7th, were you

aware of Mr. Martin's statement and his providing information?

A. Prior to January 5 or 6 --

Q. On January 5 or 6, were you aware -- did you become aware

that Mr. Martin had called and provided information?

A. Yes.
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2178

Q. What did you understand?

A. I understood that Mr. Martin called, I believe, Andrew

Friedman, Mr. Andrew Friedman, and said that Ms. Kolar had

remembered that Briana Waters was the third individual at the

arson.

MR. BARTLETT: No further questions.

REDIRECT EXAMINATION

BY MR. BLOOM:

Q. I just have a very few questions. About these proffers

that both -- the Phillabaum and Kolar proffers that have been

moved into evidence. I actually just have one question.

The signatures -- I am sorry, the title page, page 2 of

each of those proffers, after it says full agreement. After

it says that, right, it says John McKay, United States

Attorney.

He was one of the people who was fired by Alberto

Gonzales, wasn't he?

A. I know he is no longer employed. I don't know if he was

fired or asked to leave.

Q. It was all over the newspapers. There were hearings.

Gonzales testified at least once -- at least twice, I should

say -- before the United States Congress, where he testified

400 times that he didn't remember. Do you remember that?

A. Who testified?

Q. Alberto Gonzales, the person who was the Attorney General
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2179

at the time a decision was made to proceed with this

prosecution?

MR. BARTLETT: Your Honor, this is totally

irrelevant.

THE COURT: Well, is that the only question?

MR. BLOOM: Yes.

THE COURT: Then I will take it up at the break as to

where we go with it.

MR. BLOOM: I have no other questions.

THE COURT: Then let's take the noon recess at this

time and have you get yourself a sandwich. Be back into the

building, into the jury room. Don't discuss the case. Leave

your books on your chair. 1:00.

(Jury not present.)

THE COURT: All right. You may be seated.

You may step down. Same admonition. Let me have you step

out so I can see what's going to be said.

(Witness departed courtroom.)

THE COURT: All right. The objection has been raised

as to the relevance of this. Let me have you speak to that.

MR. BLOOM: Sure. There has been testimony in this

case that Stan Meyerhoff -- on March 17th of 2006, Stan

Meyerhoff, a person at the center of nearly all the arsons and

was involved in the planning of this so-called double whammy,

looked at Briana Waters' photograph and said: "That woman
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2180

looks familiar. She's not involved."

It's my position -- it's our position that this case

should have been over on that date, that the reason this

prosecution continued is because of the politics of the George

W. Bush/Alberto Gonzales administration and we are entitled to

prove that and entitled to prove that the continuing

prosecution after at least that event was politically

motivated, not based on facts, not based on guilt.

THE COURT: I am trying to understand the question.

I heard the speech, but I am trying to understand your

question. The question to the witness was whether or not John

McKay was fired by him.

MR. BLOOM: Not by him. Would you read the question

back?

COURT REPORTER: "Question: I just have a very few

questions. About these proffers that both -- the Phillabaum

and Kolar proffers that have been moved into evidence. I

actually just have one question.

"The signatures -- I am sorry, the title page, page 2 of

each of those proffers, after it says full agreement. After

it says that, right, it says John McKay, United States

Attorney.

"He was one of the people who was fired by Alberto

Gonzales, wasn't he?

"Answer: I know he is no longer employed. I don't
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2181

know if he was fired or asked to leave.

"Question: It was all over the newspapers. There

were hearings. Gonzales testified at least once -- at least

twice, I should say -- before the United States Congress,

where he testified 400 times that he didn't remember. Do you

remember that?

"Answer: Who testified?

"Question: Alberto Gonzales, the person who was the

Attorney General at the time a decision was made to proceed

with this prosecution?"

MR. BLOOM: I want to add one more thought to my

argument. As I remember it, Lacey Phillabaum denied that this

was a political prosecution. We are entitled to impeach her

with evidence that supports the argument.

THE COURT: I am trying to understand the question.

I don't know how -- you want him to answer whether or not John

McKay, a yes or no, as to whether or not he was fired when

Gonzales was the Attorney General? Is that the question?

MR. BLOOM: That was my question.

MR. BARTLETT: What relevance is that, Your Honor.

THE COURT: I don't know the relevance of it. If

it's irrelevant, he shouldn't get into it. This is 403. He

can say whether he knows it or not knows it.

MR. BARTLETT: I want an offer of proof as to how

they are going to prove that this was a politically driven
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2182

prosecution by George W. Bush and Alberto Gonzales.

THE COURT: I can't answer that.

MR. BARTLETT: They can. You can demand an offer of

proof so they don't go down paths that have no basis

whatsoever, as opposed to a paranoid innuendo.

THE COURT: I don't know what you are saying,

Mr. Bartlett. I don't know if Mr. Bloom is saying that he's

going to follow up that question with a bunch of witnesses to

try to show that.

MR. BARTLETT: If he's not, Your Honor, it's

irrelevant. Under 403, the question is totally irrelevant.

THE COURT: Your objection is noted. He can answer

yes or no, and that's the end of it. That's as far as it is

going to go. Whatever the answer is, accept it and move on.

MR. BARTLETT: Just to clarify the record, I assume I

can tell the jury that John McKay was one of my best personal

friends and he hired me as first assistant, and of all the

people in the Western District of Washington that are upset

about John McKay's treatment under Albert Gonzales, I would be

at the top of the list.

MR. BLOOM: If he wants to testify.

THE COURT: I am not going to sit here and listen to

what's going on here now. We are at recess.

THE CLERK: All rise. Court is at recess.

(Luncheon recess.)
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2183

(Jury not present.)

THE COURT: All right, you may be seated.

Are we ready?

MR. BLOOM: I have indicated to the prosecutors that

I would withdraw the last question, and we have no further

questions of the witness. Mr. Bartlett asked if it was okay

for us to let him go; I said yes.

THE COURT: So we are through with Mr. Torres?

MR. BLOOM: Yes.

THE COURT: I don't know what else there is to say

about him.

MR. BLOOM: It's determined there are no questions,

or however the Court wants to handle it.

THE COURT: You have your next witness?

MR. FOX: Yes, Heather Moore.

THE COURT: You did say the last question was

withdrawn?

MR. BLOOM: Yes.

(Jury present.)

THE COURT: All right. You may be seated.

The last question posed to Mr. Torres has been withdrawn,

so we are moving now to the next witness.

MR. FOX: Your Honor, we would call Heather Moore.

Come forward and raise your right hand.

HEATHER MOORE, called as a witness, duly sworn.
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2184

THE COURT: Just come around and take the witness

chair.

DIRECT EXAMINATION

BY MR. FOX:

Q. Good afternoon.

A. Hi.

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

and also speak into the microphone?

A. Heather Moore. M-O-O-R-E.

Q. Ms. Moore, where do you live?

A. Tumwater.

Q. Who do you live with?

A. My husband and daughter.

Q. Why don't you bring the microphone a little closer to your

mouth.

What is your husband's name?

A. Jim Dawson.

Q. Your daughter's name is what?

A. Kierran Winter.

Q. How old is your daughter?

A. She's seven.

Q. Seven. What do you do for a living?

A. I am a legislative aid in the House of Representatives.

Q. That's down in Olympia?

A. It is.
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2185

Q. Do you know Briana Waters?

A. Yes.

Q. How do you know Briana Waters?

A. We were in college together.

Q. What college was that?

A. Evergreen.

Q. What years were you in college at Evergreen?

A. '96 to 2000.

Q. Ms. Waters, was she there at the same time?

A. During the same time, yes.

Q. Now, when you met Ms. Waters, generally, what types of

things was she doing?

A. In her life at the time?

Q. Yes.

A. School, a lot of school. Hanging out with friends. I

think that was pretty much the circumstances that I was around

her.

Q. So you were friends with Ms. Waters?

A. Uh-huh.

Q. Now, did you know Justin Solondz?

A. I did.

Q. How did you know Mr. Solondz?

A. Same circumstances, same circle of friends and school.

Q. Who is Ocean?

A. My ex-husband.
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2186

Q. And when did you meet Ocean?

A. When did I meet Ocean? In '98.

Q. 1998. And at some point -- you said he was your

ex-husband -- you got married to him?

A. Yes.

Q. Is your child his child as well?

A. Yes.

Q. Now, in 2000 -- taking you back to the spring of 2000, did

anything significant happen to you during that timeframe?

A. To me, in the spring of 2000?

Q. Yes. With Ocean.

A. The significance of 2000 with Ocean. Oh, yes, we were in

a car accident together.

Q. Okay. As a result of this accident, what happened with

Ocean?

A. He is a quadriplegic as a result.

Q. Over the next year from -- when was the car accident; do

you remember what month?

A. It was April 5th.

Q. Of 2000?

A. Yes.

Q. Over the next, the course of the next year, where did you

and Ocean reside?

A. Over the course of the next year?

Q. Right.
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A. For a period of time, the University of Washington

Rehabilitation Center, and then on Dickerson.

Q. Dickerson, in which city?

A. In Olympia. And then after that on Conger in Olympia.

Q. You say on Conger, do you remember the address on Conger?

A. 2613.

Q. Conger. I am showing you --

A. Or 1326.

Q. I am showing you what has been admitted into evidence as

Exhibit 733. Does that look familiar?

A. Oh, look at that. Yes, that's the house.

Q. That's the house. Now, did you rent the house or did you

buy the house?

A. Bought it.

Q. Do you recall when you bought the house?

A. I remember getting keys days before Procession of the

Species, which was in April.

Q. Days before what?

A. Procession of Species, which is in April.

Q. So April of what year?

A. Of 2000.

Q. 2000 --

A. Oh, a year later, so 2001.

Q. Now, when you bought the house, what was its condition?

Do you remember anything about the house when you bought
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the house?

A. Well, I remember that we couldn't live in it until it was

fixed, because it couldn't accommodate Ocean's needs.

Q. What were Ocean's needs?

A. He needed a ramp to get into the house and a bathroom that

had, you know, facilities that would allow him to wheel into a

shower and a bedroom large enough for a bed for him. So there

was some significant changes that happened to the house.

Q. How about the kitchen?

A. There was not, at the time, any significant changes to the

kitchen.

Q. So the changes that took place in the house, do you

remember when the construction started?

A. It was soon after we had bought it. We started sort of

evaluating what things needed to happen and finding people to

do it and discovering what sort of requirements there were

from the state. That was right after we got the house that we

started that process.

Q. When you started that process, where were you and Ocean

living?

A. I was living with my parents, and Ocean was living on

Dickerson.

Q. Dickerson in Olympia?

A. Yes.

Q. Do you remember when Ocean was able to move into the
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house?

A. It was in August.

Q. Of?

A. Of 2001.

Q. Okay. Is that the time you moved into the house as well?

A. Uh-huh.

Q. You have to say yes or no.

A. I am sorry, yes.

Q. Now, were there any other buildings on your property,

other than the house itself?

A. A garage.

Q. Do you remember what the garage was like back when you got

possession of your house?

A. It was what we had imagined, was a garage used for

carpentry work, because it had a fair amount of wood there and

debris.

Q. And was this a dry garage or a wet garage?

A. Dry or wet? Well, it had a flat roof on it, and that sort

of created some problems as far as water draining not

properly.

Q. Where would the water end up?

A. Inside.

Q. Inside?

A. The garage.

Q. Did this cause any other problems inside the garage?
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A. Yeah, the dry wall was replaced later on because it had

mold on it.

Q. Now, you say that you had contractors come in and do some

of this work on the house?

A. Not contractors, but they were people skilled in

construction, yes.

Q. The people that came in to do the work, did they just

start work and work straight through the next couple months?

A. Yeah, it was pretty much nonstop, because they started

with some demolition and there was plumbing that needed to

happen and a whole variety of things.

Q. How many people do you think worked on this house?

A. I would say a safe estimate would be 10 to 15.

Q. That was over the whole timeframe, right?

A. Yeah.

Q. Now, who lived in the house while the work was being done

on the house?

A. Nobody lived in the actual house itself. Briana --

Q. Go ahead.

A. Briana was staying in the garage that was in the back of

the property.

Q. Did she pay you rent?

A. No, she stayed there and kept an eye on it for us.

Q. Okay.

A. And watered the garden.
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Q. Was there a garden in the backyard?

A. Uh-huh.

Q. I am sorry, you have to say yes or no.

A. Yes, I am sorry.

Q. Was there a garden already there when you got the house?

A. No, I put that in. There was raised beds, but I planted.

Q. Do you recall when you planted them, the garden?

A. It was sometime before summer actually kicked in.

Q. So, would that have been, what, like the first month you

got it or --

A. It wasn't right away. I would say sometime like May/June.

Q. Now, earlier you had said -- did anything have to be done

in the kitchen at all in terms of the counters or anything

like that?

MR. FRIEDMAN: Objection, Your Honor, leading.

MR. FOX: Let me rephrase.

BY MR. FOX:

Q. Was there any work done in the kitchen?

A. Well, I removed cabinet door fronts. That's something

that happened in the kitchen. The floor was sanded and

refurbished.

Q. Okay.

A. And there was a piece of -- I think there was a piece of

the countertop that was removed, if I remember correctly.

Q. Do you recall exactly when?
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A. When that happened?

Q. When any of the work in the kitchen took place.

A. That was over a period of time.

Q. Okay.

A. It started right away. When we got the house in April, I

went in and did the cabinet changes. And then I think the

countertop was removed after that, and it was like a

countertop with a base to it. And then the floors were worked

on sometime after that.

Q. Now, while this construction was going on, did you have

occasion to ever stop by the house?

A. Oh, yeah. Frequently -- yes, frequently.

Q. When you say frequently, is this every day?

A. Not every day, but a number of times during the week I

would go by there.

Q. What type of things would you do when you stopped by the

house?

A. Admire the work. Check in with people, see if they needed

anything. Say hi. See what's happening.

Q. Did you ever see Briana Waters when you would stop by?

A. Occasionally.

Q. Did you ever go to the garage?

A. Yes.

Q. Now, did there ever come a time when you stopped by the

house in May of 2001 and you saw anything strange or odd?
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A. In May, no.

Q. Did you ever see plastic on the walls of the garage?

A. No.

Q. Did you ever see strange people that you'd never seen

before hanging out at the house?

A. No.

Q. Now, did you ever see any gasoline hanging out?

A. No.

Q. How long did Briana Waters live at this house?

A. It was until sometime in September, August, right around

there. I want to say beginning of September. From May until

then, or sometime in May. I am a little foggy about what

time.

Q. It was about the time you moved in?

A. That I moved in?

Q. Yes.

A. That she left? She left after I moved in.

Q. Now, during the whole time that the construction is going

on, I guess you just said that you would come by a couple

times a week. For how long would you come by? Were these

long periods of time?

A. It really depended on -- there were different

circumstances, like why I was there, you know. It could have

taken longer than other times than if I had my daughter with

me, you know. That impacted how long I stayed. If I didn't,
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then, you know, how long I had childcare for would affect how

long I could stay.

Q. Were there ever periods of time where you might not come

by for a couple days at a time?

A. Maybe two or three, maybe, yeah.

Q. Now, when you would stop by the house, did you ever call

Briana Waters up and say, hey, I am stopping by the house?

A. Never.

Q. After Ms. Waters left the house, how much contact did you

have with her after that, after she left the house?

A. After she moved out of Washington?

Q. Yeah. Well, let's say after she moved out of the house.

A. Not a lot of contact between us.

Q. You still consider her to be a friend?

A. Yeah, I would consider her a friend.

Q. Now, at some point, did you ever have occasion to meet any

FBI officers?

A. Would I?

Q. Did you?

A. Did I?

Q. Yes.

A. At that time?

Q. No, subsequently, like in the last two years.

A. Yes.

Q. What happened?
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A. With?

Q. With the FBI officers.

A. Well, they arrived at my place of work looking for me,

wanting to ask me some questions about something that I hadn't

heard of.

Q. Subsequently, did you meet with any prosecutors?

A. Yes.

MR. FOX: I have no further questions.

THE COURT: Any cross?

MR. FRIEDMAN: Yes, Your Honor.

CROSS-EXAMINATION

BY MR. FRIEDMAN:

Q. Good afternoon, Ms. Moore.

A. Hi.

Q. The last question you were asked was did you ever meet

with any prosecutors. You in fact came to our office and met

with me once, is that correct?

A. Yes.

Q. Probably in 2006?

A. Sure, yes.

Q. You told us you were married to Ocean.

A. Yes.

Q. Is that correct? Beginning in about 1998?

A. '99.

Q. 1999. Then you were involved in a serious car accident
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with him in 2000?

A. Correct.

Q. And he became a quadriplegic as a result of that?

A. Yes.

Q. And then I guess you spent some time together at the

University of Washington and then back in Olympia?

A. Correct.

Q. And you separated from him in 2002; is that correct?

A. Yes.

Q. And you had bought the Conger Street house with him before

that, correct?

A. Yes.

Q. Back in 2001?

A. Yes.

Q. You bought that house actually in March of 2001; is that

correct?

A. I think that's when the process began.

Q. That's actually when you settled on the house; isn't that

correct?

A. I could not say for certain. I just know when I got the

keys in my hand.

Q. Could you take a look at Exhibit 732?

A. Yes.

Q. It should appear on the screen in front of you. It's

already been admitted into evidence. It will just take a
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moment, I think.

Would you take a look at Exhibit 732 and tell me if you

recognize that?

Is it fair to say it's a deed for the house?

A. Yes.

MR. FRIEDMAN: The government offers 732.

MR. FOX: No objection.

THE COURT: Admitted.

(Exhibit No. 732 admitted.)

BY MR. FRIEDMAN:

Q. Now it should appear on the screen in front of you.

If you look at the middle of that, do you see the date on

which the --

A. On the front page?

Q. The middle of the front page, there should be a date for

the --

A. March 16.

Q. March 16, 2001?

A. Uh-huh.

Q. So that's when the sale closed and when you and Ocean

officially became owners?

A. Okay.

Q. After that, you said there was some renovation that needed

to be done before --

A. Yes.
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Q. -- he could move into the house?

A. Yes.

THE COURT: Is this to be displayed?

THE CLERK: It's not coming up.

Is it on the document camera or on the computer?

MR. FRIEDMAN: It is on the computer.

THE CLERK: Okay, I misunderstood. Thank you.

BY MR. FRIEDMAN:

Q. So the construction happened in some period of months

beginning after March of 2001?

A. Yes.

Q. Now, you testified that you had known Briana Waters from

school, I guess, the same circle of friends?

A. Yes.

Q. Did you consider her a good friend back before the time

she moved into your house?

A. I considered her a friend.

Q. Have you given money to her legal defense?

A. No.

Q. Let me ask you again about the house and the garage. We

looked at a picture a moment ago. If you could look at

Exhibit 733, the third page, and that should show up on the

screen in front of you.

Is that a picture of the garage and the outbuilding at

your Conger Street house?
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2199

A. This is not what it looked like when I lived there. But

yes, that's it.

Q. That's the same building?

A. Yes.

Q. Just painted a different color, I take it?

A. Yes.

Q. That's the building in which Briana Waters was living back

in 2001?

A. Yes.

Q. When she lived there, she had access to the main house

also, right, she had keys to the house?

A. Yes, she was able to go in it.

Q. You had a telephone in the house, correct?

A. Yes.

Q. And she had access to and could use that telephone?

A. Yes.

Q. Do you know whether she had her own car at that time?

A. Not that I remember.

Q. In fact, she didn't have a car at that time; that's

correct, isn't it?

A. Sure, yes.

Q. And she didn't have a cell phone of her own that she used

at that time, correct?

A. Not that I know of.

Q. Your sense was that she didn't have a lot of money?
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2200

A. That's correct.

Q. To have a car or a cell phone of her own?

A. That's correct.

Q. You told us a minute ago that you stopped by sometimes at

the house. Do you recall being interviewed when you came to

our office about talking about how often you came to the

house?

A. I don't.

Q. Do you recall discussing who was supposed to live here

during this period? Do you recall discussing whether anyone

other than Briana Waters was allowed to live in the house

during that period?

A. Allowed to live in the house?

Q. Did you give permission to anyone other than Briana Waters

to live in the house or the garage?

A. At the same time?

Q. Yes.

A. There was a friend of my daughter's who stayed there for a

couple of nights in the main house.

Q. But with that exception, you didn't -- Justin Solondz

wasn't supposed to live there, correct?

A. No.

Q. In fact, you specifically told Briana Waters he wasn't

supposed to live there?

A. He wasn't invited to live there.
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2201

Q. Do you recall being interviewed and discussing how often

you visited the house and whether you visited it enough to

even know whether Justin Solondz was living there?

A. No, I don't remember that.

MR. FRIEDMAN: May the witness be shown an exhibit,

the report of her prior interview?

BY MR. FRIEDMAN:

Q. Do you think looking at that report might refresh your

memory about what you said?

A. Sure.

Q. Would you turn to the third page of the report of your

interview? Read the top full paragraph to yourself.

A. Okay.

Q. Does that refresh your memory of how often you stopped by?

A. It speaks to my memory at the time, yeah.

Q. In fact, you said that you stopped by rarely enough -- you

stopped by rarely; isn't that correct?

A. The back.

Q. You stopped by rarely enough that you wouldn't even have

known if anyone was visiting or if Justin Solondz was living

there?

A. If anybody was visiting her, correct.

Q. Or if Justin Solondz was living there, correct?

A. There was no -- well, there was no way to know if he was

or was not.
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2202

Q. Because you stopped by rarely enough that --

A. In the back, correct.

MR. FRIEDMAN: Thank you very much, Ms. Moore.

THE COURT: Anything else?

REDIRECT EXAMINATION

BY MR. FOX:

Q. Ms. Moore, you said rarely. Is that like -- I mean, how

many hours in a week would you say you would be by that house?

A. How many hours?

Q. Yes.

A. On an average?

Q. Yes. During the time of the construction.

A. Every week would be different. Circumstances of what was

happening would be different. Five, maybe, over -- you know,

five to seven over the course of a week.

Q. So the majority of the time you weren't at the house,

right?

A. Exactly.

MR. FRIEDMAN: Objection, Your Honor, leading.

MR. FOX: You are right.

BY MR. FOX:

Q. I guess the times that you did come by, did you ever

announce that you were coming by?

A. Never.

MR. FOX: I have no further questions.
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2203

MR. FRIEDMAN: No further questions, Your Honor.

THE COURT: All right. You may step down.

THE WITNESS: Thank you.

MR. BLOOM: James Dawson, please.

THE COURT: Let me have you come forward and raise

your right hand and be sworn.

JAMES DAWSON, called as a witness, duly sworn.

THE COURT: You may take the witness chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Hi. Could you please tell the jury your full name,

please?

A. It's James Edward Dawson.

Q. And are you married?

A. Yes, I am.

Q. Who are you married to?

A. Heather Ellen Moore.

Q. How old are you?

A. I am 28.

Q. Where were you born?

A. I was born in Michigan.

Q. When did you come up here to the northwest?

A. In the fall of 1998.

Q. When you came here, please tell the jury where you moved

to, what city?
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2204

A. I moved to Olympia, Washington.

Q. What did you do when you moved there?

A. I went to the Evergreen State College.

Q. For how long did you stay there?

A. In Olympia or Evergreen?

Q. At Evergreen.

A. I graduated in 2003, but I took a year off of school, too,

during that time.

Q. Stay in the microphone.

A. No problem, sorry.

I took a year off during that time, but I graduated in

2003, and I was away for a year also during that time.

Q. When were you away?

A. I was gone in an environmental leadership training program

from the summer of 2000 until September of 2001.

Q. How are you employed now?

A. I work for a nonprofit advocacy organization called the

Washington Toxics Coalition as a community organizer.

Q. How long have you been with them?

A. Since May of 2006.

Q. Where do you live now?

A. I live in Tumwater, Washington.

Q. In relation to Olympia, where is that?

A. About a half mile away from Olympia.

Q. Who do you live with?
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2205

A. I live with my wife and my stepdaughter, who's seven, and

a dog and cat.

Q. And her name?

A. Her name is Kierren Winter.

Q. Is Ocean her biological father?

A. Yes, that's correct.

Q. How long have you been with Heather?

A. We have been together since March of 2002. And we've been

married since October of 2003.

Q. Do you remember meeting Briana Waters?

A. I don't remember the first time I met Briana Waters, but I

remember meeting her.

Q. Do you see her here in the courtroom?

A. Yes.

Q. Could you point her out, please?

A. She's right over there.

Q. Indicating Ms. Waters?

A. Yes.

Q. Is she a friend of yours?

A. Yes, a great friend.

Q. Can you tell us how you met her?

A. I met her doing political work at the Evergreen State

College.

Q. What kind of political work would that have been?

A. Well, I think we might have met in the student activities
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2206

area because we were both involved in different environmental

student groups, I believe is the first time we met.

Q. Tell the jury about what you remember of your interactions

with her?

A. I have always really enjoyed my interactions with Briana.

She's a fun, honest person I trust greatly, and we've done a

lot of, I think, great work together to help make the world a

better place and also had a lot of fun doing it.

Q. Do you have a sense -- can you evaluate or give us your

opinion as to whether she is a violent person or a nonviolent

person?

A. I would say she's definitely a nonviolent person.

MR. BLOOM: I don't have any further questions.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. Good afternoon.

A. Hi.

Q. In addition to being a friend of Briana Waters, you are

also a friend of Justin Solondz?

A. That's correct.

Q. Good friend?

A. I was very good friends with him, uh-huh.

Q. When's the last time you talked to him?

A. I haven't talked to him in a couple years.

Q. As I understand it, you were out of the country for some
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portion of 1999 until September of 2001?

A. No, I was in the country; I was out of state. And that

was what I previously said, the environmental leadership

training program. I was traveling from the summer of 2000,

and I returned in September of 2001.

Q. Got you. So you weren't here in May of 2001?

A. No, I was not.

Q. Was there a point in time when you lived at 880 Division

Street?

A. I don't remember the address exactly, but yeah, that

sounds right.

Q. Kind of a group home?

A. What was that?

Q. Kind of a group home?

A. It wasn't --

Q. You lived there?

A. I lived there, yes.

Q. Ocean lived there?

A. Yes.

Q. Briana lived there?

A. That's correct.

Q. And Mr. Solondz lived there?

A. Yes.

Q. How long did the four of you live together?

A. I believe it was for nine months or ten months, something
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2208

like that. I don't remember the exact dates.

Q. Have you donated any money to Ms. Waters?

A. No.

Q. In addition to knowing Justin Solondz, did you know a

person named Bill Rodgers or Avalon?

A. I did know him, uh-huh.

Q. I assume you've met Mr. Rodgers during the Watch Mountain

campaign?

A. That would probably be the case, yeah.

Q. In addition to knowing him, you were aware that

Mr. Rodgers and Briana were good friends?

A. No, actually I wasn't aware that they were good friends.

Q. The Watch Mountain campaign, as I understand it, that was

a campaign primarily sponsored by Earth First?

A. Well, the Cascade Defense -- I am sorry, I am forgetting

the name of it. The group that leads in some Earth First

values.

Q. You said Earth First values. I believe Mr. Bloom

described it as people from Earth First -- people from Earth

First, the hippies, the tree huggers, the people who wanted to

save the earth. Those are the people that were involved in

the Watch Mountain campaign, correct?

A. I guess you could call them hippies. I wouldn't

necessarily categorize them that way.

Q. Would you describe Earth First as a mainstream
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environmental group or radical environmental group?

A. I think -- well, Earth First isn't really a group. So

each individual person who thinks that they're associated with

Earth First, I think, is different. I think our group would

be considered radical in the way we went about things. When

you look at the work that we did, we brought together people

who were fighting, and we brought them together and

successfully won.

So we brought a former timber community together with

fairly radical college students. And up until that point --

that was at the end of the big spotted owl controversy when

timber workers and environmentalists hated each other, and we

brought them together to protect their communities.

So it was very impressive in the work that we were doing,

and in that way I think it was radical.

MR. BARTLETT: If I could approach the witness?

BY MR. BARTLETT:

Q. I hand you what's been previously marked as Government's

1105.

Do you recognize that as the website for Earth First?

A. I am not familiar with the appearance of this website. I

haven't -- I don't even know if I ever went to Earth First

website.

Q. Looking at the back page, do you recognize the symbol for

Earth First? It's not in color, but normally you see a green
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fist in the air, with the name "Earth First!" with their

motto, which is "No compromise in the Defense of the Earth!"

MR. BLOOM: Excuse me, but it says "Defense of Mother

Earth!"

BY MR. BARTLETT:

Q. "No compromise in the Defense of Mother Earth!"

A. I've heard it; I have seen this symbol before. I don't

know that it's the symbol of Earth First. It's a symbol that

someone who aligns themselves with Earth First created.

Q. And Earth First within this website describes itself as --

MR. BLOOM: Excuse me. First of all, it's not in

evidence; and secondly, the witness has said he doesn't

recognize it. I object.

THE COURT: Let's ask him questions. Question and

answer.

BY MR. BARTLETT:

Q. You are aware that Earth First's self-description is that

they are a radical environmental group, correct?

A. I guess so. Again, Earth First is people who come

together in local areas and agree on something and go out and

do it together, and so it's hard to characterize it. It's not

a top end organization. There aren't rules for getting

involved in it. And the groups are all different in what they

actually do.

I can only talk about the work I did, and in some ways I
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2211

think it was radical because it was stepping outside of what

was being done at the time. But I don't think it's extreme.

I think it's the type of change that I want to see in the

world and the type of change that I would like to see -- that

I would like to have my daughter inherit, too.

So I think that there's a very big difference between

radical and extreme.

I think that we were radical in doing the things that

people weren't doing, that I believe should have been doing;

bringing together labor unions, bringing together

environmentalists, bringing together economically depressed

communities, and working to fight for rights of people who

have been disadvantaged and combining a lot of different

tactics to be successful. And we were very successful in

doing that.

But again, I don't think the things that I was involved in

was extremist. It was radical, but radical in a very positive

way.

Q. When you first heard about Earth First, one of their

primary trademarks was monkeywrenching, doing civil

disobedience that would impact, for example, spiking trees;

those types of activity?

MR. BLOOM: If I may, Judge, I object. This is

further continuation, an attempt to smear Ms. Waters with

Disneyland, Statue of Liberty. It's just not right. I would
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2212

ask the Court to stop it.

THE COURT: Well, just a minute.

Any response to this? Should I have the jury out on this.

MR. BARTLETT: My sole question to this witness is

have you ever heard the term monkeywrenching in reference to

Earth First activities?

THE COURT: You can answer yes or no, and I will see

where it goes.

A. I have heard of monkeywrenching, and I have heard of it

being associated with certain Earth First groups. But it's

not a term -- monkeywrenching is not something that I

participated in; I never saw Briana Waters participate in. We

actively campaigned against it because it hurt the people that

we were working to work with and to build alliances with.

So we weren't interested in participating in that, and we

didn't.

So I don't think that you can associate the work that we

did in Olympia, Washington, with anything else that was done

by other Earth First groups in other states. They are all

independent.

Again, it's not an organization. It's a set of beliefs,

and people interpreted those beliefs differently. And our

group of my friends, the people that I worked with, actually

were vehemently against tree spiking and other things that

caused harm to people, and we didn't participate in it, and we
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2213

actively worked to make sure it didn't happen on any of the

campaigns that we worked on.

MR. BARTLETT: I have no further questions, Your

Honor.

MR. BLOOM: I have no questions, Your Honor.

THE COURT: You may step down.

MR. BLOOM: Next will be Julie Frank, please.

THE COURT: Let me have you come forward and raise

your right hand and be sworn.

JULIE FRANK, called as a witness, duly sworn.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Could you please tell the jury your full name?

A. Julie Elizabeth Frank.

Q. Where do you live?

A. Olympia, Washington.

Q. If I may ask, what do you do for a living?

A. I got a new job yesterday.

Q. You did?

A. Yes. I will be selling and marketing for a small company

that installs wind energy projects.

Q. Are you married?

A. Yes.

Q. Do you have any children?

A. I have two children.
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Q. Any of them in this courtroom?

A. Yes, there's one over there in the corner, 12.

Q. Where did you grow up?

A. I grew up in Philadelphia.

Q. When did you come to the northwest?

A. In 1993.

Q. What -- since you've been here, what have you done?

A. I worked for a recycling company doing marketing for a

while. I raised two children whom Briana babysat for.

Q. I'm sorry?

A. Briana babysat for my children. And until recently, I was

the president of a technology start-up. We were putting

together pumps, industrial pumps and renewable energy

turbines.

Q. Did there come a time in the past couple of years when you

spoke with either FBI agents or prosecutors?

A. I am going to guess, eight months ago, give or take, two

FBI agents knocked on my door one morning.

Q. Did they ask you questions?

A. Yes.

Q. Did you answer their questions?

A. I did.

Q. Now, do you know Briana Waters?

A. I do.

Q. Do you see her in the courtroom?
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A. Yes, I do.

Q. Could you identify her?

A. Yes, Briana right there.

Q. How did you come to know her?

A. I believe I put an ad in the paper, or maybe at Evergreen,

for a baby-sitter to take care of my children.

Q. About what year would that have been?

A. I believe it would have been sometime in 1999 or early

2000.

Q. Briana responded to your ad?

A. Yes, she did.

Q. And did you decide to engage her as a person to take care

of your child or children?

A. I did, And she was a wonderful sitter. We were going

through some difficulty with our eldest, who is here. She had

a tumor in her femur and was in and out of wheelchairs and

body casts for about 18 months. And then I have a younger

daughter who's three years younger, and Briana was very

helpful during that time.

Q. Could you describe, as you remember, your interactions

with Briana Waters?

A. Certainly. I didn't bring my kids into the world to

ignore them, and so I carefully interviewed people that spent

time with my kids and checked their references carefully.

Then I spent time with them getting to know them, find out
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2216

what they think about taking care of children and behavioral

issues. And so Briana and I spent quite a bit of time

chatting through the couple of years she worked for us. At

one time my husband and I decided it was okay to go away for a

night, and Briana stayed with the kids, and that was really

nice.

Q. In general, could you describe your opinion of

peacefulness, violence, nonviolence; what is your sense of

her, your opinion of her with regard to whether she's a

violent person or a nonviolent person?

A. Well, she was always good with my kids as far as offering

them positive suggestions on how to do things. There was

never a threat or punishment. It was always how do you

encourage with positivity. And tickling, of course, was on

the list of important things.

I would trust -- I mean, she took our car and drove them

to the library or wherever they needed to go. And I trusted

her with the lives of my children.

Q. Thank you. I don't have any further questions.

CROSS-EXAMINATION

BY MR. FRIEDMAN:

Q. Good afternoon, Mrs. Frank. My name is Andrew Friedman.

I'm one of the prosecutors in this case.

I just have a few questions for you.

You obviously -- Briana Waters worked for you over the
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2217

course of a couple years?

A. Yes.

Q. And you met her boyfriend at the time; is that correct?

A. A couple of times probably.

Q. Do you recall his name?

A. Justin.

Q. Justin Solondz?

A. I don't know that I ever knew his last name.

Q. But you didn't meet many of her other friends from school,

did you?

A. No.

Q. And you didn't meet the people with whom she was involved

in environmental work or campaigns or projects, did you?

A. No.

Q. I am going to show you a series of pictures, and tell me

if you know any of those people. They should all appear on

your computer screen in front of you.

Exhibit 111, someone named William Rodgers. You didn't

know him, did you?

A. No.

Q. Then Exhibit 119, Joyanna Zacher?

A. No.

Q. Exhibit 118, Nathan Block?

A. No.

Q. Exhibit 117, Daniel McGowan?
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2218

A. No.

Q. Exhibit 120, someone named Suzanne Savoie?

A. No.

Q. Exhibit 116, Stan Meyerhoff?

MR. BLOOM: Excuse me a second. I'm going to object

-- I don't object to the showing of the photographs. The

introduction was people with whom she was involved in

activities. That is not --

THE COURT: Just show the pictures and see if she

knows.

MR. BLOOM: I object to the introduction, because

that is actually testimony by Mr. Friedman, and that is not

our position. It is not our position that she was involved

with these people.

THE COURT: You've made it clear.

BY MR. FRIEDMAN:

Q. You didn't know this man, did you, Stan Meyerhoff?

A. No.

Q. And then Exhibit 112, Jennifer Kolar, you never saw her

either?

A. No.

Q. Exhibit 113, Lacey Phillabaum?

A. No.

Q. So it's fair to say, isn't it, you never saw Briana Waters

with any of the people we've just looked at?
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2219

A. No, I certainly didn't.

Q. We talked a minute ago about, or you talked on direct

examination about being interviewed by a couple of FBI agents.

You said they came to your door, correct?

A. Yes.

Q. And they asked you some questions?

A. Yes.

Q. And they asked specifically questions about Briana Waters?

A. Yes.

Q. And they also asked you questions about Justin Solondz,

correct?

A. Yes.

Q. And they asked you questions about an arson that took

place at the University of Washington, correct?

A. Yes.

Q. You told them that you wouldn't be surprised if Briana

Waters new the people who had committed that arson, didn't

you?

A. I believe that we all have the opportunity to make efforts

for social change in our lives, and as a journalist, that is

what Briana did. And it's natural that she might have known

some of these people through her work making the movie.

Q. You told them you would not be surprised if she knew

people who had committed the arson?

A. Well, certainly. How else would she have made the movie
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2220

if she didn't meet some of those people? I don't know that

the people in the tree sitting were the same people that did

the arsons, but it wouldn't be surprising if some of that --

there was overlap in those groups.

MR. FRIEDMAN: Thank you very much, Ms. Frank.

THE WITNESS: Certainly.

MR. BLOOM: Thank you. I have no further questions.

THE COURT: All right, you may step down.

Next witness.

MR. BLOOM: May I request -- the witness would like

to stay for two minutes to watch the proceedings. Is there

any problem with that?

MR. BARTLETT: No objection.

THE COURT: She's been excused. She can stay as long

as she likes.

Let me have you come forward, sir.

MR. BLOOM: This is Greg Grove.

THE COURT: Just come forward and raise your right

hand and be sworn.

GREGORY GROVE, called as a witness, duly sworn.

THE COURT: Just come around and take the witness

chair.

MR. BARTLETT: We were never provided notice that

Mr. Grove was going to testify.

MR. BLOOM: I think I did yesterday. Isn't that
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2221

true?

THE COURT: Is there an issue with him testifying

now?

MR. BARTLETT: I have no idea who he is. I have

never heard the name before.

MR. BLOOM: He's a character witness.

MR. BARTLETT: I have no objection.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Could you state your name to the jury, please?

A. Yeah, my name is Gregory Allen Ladue-Grove.

Q. Could you use the microphone, please?

A. Okay. My name is Gregory Allen Ladue-Grove.

Q. How old are you?

A. I am 49.

THE COURT: Have him spell the last name for the

record.

BY MR. BLOOM:

Q. How do you spell your last name?

A. G-R-O-V-E. It's a hyphenated name, L-A-D-U-E hyphen

G-R-O-V-E.

Q. Where do you live?

A. I live in Tumwater, Washington.

Q. And are you married?

A. I am, 29 years.
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2222

Q. Do you have any children?

A. I have two children, both grown, and a granddaughter of

about four months ago.

Q. Where did you grow up?

A. I was born up in Seattle, Washington, over on Magnolia.

Part of my youth was in Eatonville with my mom and

grandparents. And most of my young high school, junior high,

grade school life was down in the Medford, Oregon, area. I

went to high school in Ashland, a Community College in Grants

Pass. And came back home up here, I can't remember, 15, 20

years ago, something like that.

Q. Have you been in the military?

A. Yes, the 5th Marines, 9th marines, 1975 to 1979. I was a

full 351 anti-tank, assault man with the ground unit.

Q. Could you stay with the microphone, if you would, please?

A. I'm sorry.

Q. Sure. What do you do for a living now?

A. I drive truck. I'm a truck driver locally within the

greater Puget Sound area.

Q. What have you done for a living in the past?

A. In my younger years, just about anything, but mostly it

was around driving truck. I have 18 years of driving truck.

In the middle of that I had a job as a GIS mapper for the

archaeology office, Office of Archaeology and Historic

Preservation. I was also the tribal liaison for that office.
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2223

Q. Let me stop you there for a moment. Is that for a public

entity?

A. That's the State of Washington. It's the shiphold office.

The term that they use is OAHP.

Q. What year was that?

A. I went back to truck driving four years ago, and I spent

three years working for the state.

Q. Just prior to that, just before that?

A. Yes. I have been back truck driving for four years, and

just prior to that I was working for the state for three

years.

Q. Okay. Did you have occasion to meet someone named Briana

Waters?

A. Yes, I did.

Q. Do you see her in the courtroom?

A. Yes. Right to your left, sitting right there, yes.

MR. BLOOM: Let the record reflect that the witness

has identified Briana Waters.

THE COURT: Yes.

BY MR. BLOOM:

Q. How did you come to meet her?

A. I met Briana a few years before I was working for the

state. I am real sketchy on the years. I was -- I belong to

the Cowlitz Tribe. I am a tribal member of the Cowlitz Indian

Tribe, and I spent a lot of years trying to follow and living
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2224

and learning traditional value systems within the tribe. I

spent a lot of time in the sweat lodge and stuff and had been

going to dam relicensing meetings representing the tribe and

things like that, and it just so happens I was at the Cispus

Center --

Q. The what?

A. The Cispus Center up on the Cispus River by Randle,

Washington, and there was some folks trying to educate people

about the value of forests and healthy environment and such,

which, you know, is a lot of traditional tribal values with

clean water, fish passage, things line that.

And Briana was doing a documentary for her school -- she

was going to Evergreen College -- and she wanted to sit down

and interview me. So that's how I met her, is we started

talking about values and about indigenous thought patterns and

how elders and people see the forests and see the water and

see the fish and that relationship with that. And she was

doing a documentary, and I sat and did interviews for her.

And my family, too.

Q. When you say your family, too, could you tell us about

that?

A. Briana had a real interest in the idea of fish passage and

tribal value systems. And we developed a friendship, and she

interviewed my mother. She was there at Chehalis Tribe when

there was a traditional drum with an elder by the name of Noah
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2225

Longcrane there. These were real traditional people, very --

you don't come from the outside into these circles. And

Briana was very accepted through me because I spent a lot of

time with these folks, plus related to some of them. And

Briana came around and she was making that documentary and she

interviewed folks. She interviewed my mother.

Q. Was there something special about you introducing her to

your mother?

A. Yes, it was huge. You know, Briana's integrity and the

way that she was carrying herself and how she was handling

herself, she was one of the few people that I would have come

around my family, much less people like Lillian Young, who was

the oldest tribal member of the Chehalis Reservation at the

time. She was a person that spoke her language. Her mother

saw the first coming of Europeans into the Cowlitz Valley. I

can't express enough how these were very traditional folks.

And Briana, her integrity and her values. I know that

she's on trial right now or I wouldn't be here. There was

no -- I wouldn't have brought Briana around had I thought that

there was any lack of integrity or peacefulness in who she

was.

Q. That's my last question. Do you have an opinion about

her, whether or not she's a violent person or a nonviolent

person?

A. My opinion is she's nonviolent. We had a lot of
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2226

conversations about the violence of the forests, about how you

can't take violence and create peace. I knew Briana as a very

peaceful person. She always represented herself as such

around my family, around my children, around a traditional

Lakota tribal drum in the middle of Chehalis.

I know her as a peaceful person.

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

questions.

Maybe the prosecutors have some questions for you.

MR. BARTLETT: Nothing, Your Honor.

THE COURT: You may step down.

MR. BLOOM: Thank you.

THE COURT: Next witness.

MR. BLOOM: May this witness stay as well?

MR. BARTLETT: No objection.

THE COURT: Yes.

MR. BLOOM: Sarah Wald, W-a-l-d.

THE COURT: Just come forward, please.

Raise your right hand and be sworn.

SARAH WALD, called as a witness, duly sworn.

THE COURT: Come around and take the witness chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Could you please state your name? Speak into the

microphone, if you would, please, and state your name slowly
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2227

to the jury.

A. My name is Sarah Wald.

Q. Could you spell it, please?

A. Sarah is S-A-R-A-H, and Wald is W-A-L-D.

Q. How old are you?

A. I am 28 years old.

Q. Right now, where do you live?

A. I live in Providence, Rhode Island.

Q. What do you do in Providence, Rhode Island?

A. I am a graduate student at Brown University.

Q. Where were you born?

A. I was born in Ann Arbor, Michigan.

Q. And did there come a time when you -- how old were you

when you left Ann Arbor?

A. I left Ann Arbor -- I went back and forth from my parents'

house in Ann Arbor and my grandparents' house. I moved --

Q. Where was your grandparents' house?

A. They live in southern California. And so I went back and

forth between their house -- my mother was very sick, which is

why I had to go to my grandparents' house -- until I was 17.

I moved to Portland, Oregon, to go to college.

Q. Where did you go to college?

A. I went to Reed College from 1997 to 2001.

Q. How long have you been in Rhode Island?

A. I moved to Rhode Island in the fall of 2003, which is when
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I started graduate school.

Q. Had you been in Portland before that, after school?

A. I stayed in Portland from when I graduated until when I

left for graduate school.

Q. Are you married or single?

A. I am single.

Q. Now, do you know a woman named Briana Waters?

A. I do know Briana Waters.

Q. Do you see her in the courtroom?

A. Yes.

Q. Indicating over this way. Is that Briana over there?

A. That's Briana over there.

Q. And do you remember where you met her and when you met

her?

A. I met Briana -- the first time I really put her face and

her name together, was in February of 2001. We were at a

meeting together in Portland, Oregon.

Q. And what was that meeting about?

A. It was a regional meeting for people who were involved in

forest campaigns and campaigns to protect forest areas, such

as the Watch campaign up in Washington and the campaign to

protect the Eagle Creek area in Portland, Oregon, to talk

about issues that had come up with sexism and around gender in

the different campaigns. So there were people there from both

Oregon and Washington.
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Q. About how many people were at that meeting?

A. There was no more than a couple of dozen people. It was a

pretty small meeting.

Q. What kind of setting was it?

A. It was held at a house that was up on a hill, kind of on

the west side of Portland, up near Lewis and Clark College,

but it wasn't right near the college -- but that area of

Portland. And we actually held meeting in a big barn

structure that was on that property. It was a pretty

comfortable, dry, warm space.

Q. I am going to show you a picture. Do you recognize that

person?

A. That is Lacey Phillabaum.

Q. Now I am going to take that off there. Do you remember

meeting her at any time?

A. I met Lacey the first time I put my name -- I may have

been in the same room with her before, but the first time I

really knew that I was meeting Lacey was at that same meeting

in February of 2001. She was -- she played quite a prominent

role at the meeting. She was doing a lot of the facilitating.

It was a two-day meeting. She spoke prominently during the

meeting.

Q. Did there come a time at the meeting -- do you remember

the date of the meeting?

A. I believe the meeting was held February 3rd and 4th. It
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2230

was held the first week of February, for sure. I was

starting -- it was the spring semester of my senior year and

it was important for me to go to regional meetings at that

point because I was graduating college and I was going to be

spending less time working with organizations on campus and

working more time with organizations in the community. And it

was right at the beginning of the semester, as we were getting

started for the school year.

Q. Is there anything else that helps you identify and

remember the date, the approximate date of the meeting?

A. There was a conference at Portland State University that

had a name like the global justice conference, that I was

helping with. It was a group of Portland State University

students, Lewis and Clark College students, and the students

worked together on this global justice conference, and the

conference was February 16th through 18th. I went and looked

through my files. I saved the fliers from the conference, and

I remember the meeting was a couple of weeks before the

conference.

Q. Was there any other conference that took place in the same

period that helps you identify the date?

A. That was the only year I went down to an environmental

regional conference they held every year at the University of

Oregon, and that was held in the last weekend of January. And

I remember that meeting was held between when I went to the
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2231

Eugene conference, which I went with a group of Reed College

students, and to the one when I went to this global justice

conference at Portland State University. And that was -- I

also saved the fliers for that -- was January 27. So I knew

it was the weekend after that that I had gone to this meeting

in Portland.

Q. Did there come a time during the meeting at the barn,

let's call it, that the couple of dozen people broke into what

they might call breakout groups? Is that the phrase that you

use?

A. Uh-huh, yeah. We often -- we went around the circle

several times introducing ourselves throughout meeting, but

during one point in the meeting we broke into groups, a group

of mostly women and a group -- a group of all women and a

group of all men. And there was one group that was for women

and men who wanted to talk about these issues together.

Almost all the women went to the group for the women only.

The facilitator was a women, and I think one other woman went

to that group. But for the most part, all the women were in

that one big breakout group, and so we spent several hours at

that point talking about issues that had come up in people's

campaign.

Q. In that breakout group -- was Lacey Phillabaum in that

group?

A. I don't remember if Lacey was in that group. She was for
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2232

sure, but I can't quite remember who the two women who went to

the other group were. But I know that she was -- when we

finished the breakout groups we came back together. We spent

most of the meeting in a big group, and so I think it's highly

likely she was in the group that had all but two of the women

there. There were a lot of women at those meetings. There

were more women than men at the meetings. And I can't quite

remember who those two women who were at the other group were.

But we spent most of the meeting in the big groups and sharing

what we come up with in that one time we spent in the breakout

groups.

Q. Did that meeting go for one day or two days?

A. It was a two-day meeting, so it was all day Saturday and

then people stayed and talked and played music on Saturday

night and the meeting continued on Sunday. So there was quite

a lot of socializing time at the meeting. It was a pretty

memorable event.

Q. And when you say played music, do you have any

recollection of Briana Waters being involved in music?

A. That's why I really remember that she was there. She

brought her fiddle down and she played her fiddle. I really

love violin music, so I was very excited to see someone bring

the fiddle.

Q. Do you have any connection with violin music?

A. I played violin as a child until I was probably about -- I
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2233

played in the school orchestra until I graduated high school.

So that was pretty close to when I played violin at that

point. I was never very good at it, but I loved hearing

people who were very good at playing.

Q. Is there any doubt in your mind that the first weekend of

February of 2001, Briana Waters and Lacey Phillabaum were at a

meeting together with about two dozen people?

MR. BARTLETT: Excuse me, Your Honor. The testimony

was a couple dozen.

MR. BLOOM: A couple of what? A couple of dozen?

THE COURT: I don't know. Just ask her the question,

if she remembers anything. That's your question, I believe.

MR. BLOOM: I am not so sure what I said, it was

different from --

THE COURT: Do want her to read it back?

MR. BLOOM: No, I will ask it again.

THE COURT: Okay.

BY MR. BLOOM:

Q. Is there any doubt in your mind that at that meeting, the

first weekend in February, Briana Waters was there and Lacey

Phillabaum was there? Is there any doubt in your mind?

A. I have absolutely no doubt that Lacey Phillabaum and

Briana Waters were at this meeting that had no more than 30

people, but probably closer to 20 people at it, for two days,

where we spoke repeatedly within the group and met everyone
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2234

there.

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

questions.

MR. BARTLETT: No questions, Your Honor.

THE COURT: You may step down.

Next witness.

Let me have you come forward, if you would, and raise your

right hand and be sworn.

DARIA ELIZABETH WRUBEL, called as a witness, duly sworn.

THE COURT: Just come around and take the witness

chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Good afternoon.

A. Good afternoon.

Q. Have you traveled up here today?

THE COURT: Have her identify herself.

BY MR. BLOOM:

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

A. Daria D-A-R-I-A, Elizabeth, E-L-I-Z-A-B-E-T-H, Wrubel,

W-R-U-B-E-L.

MR. BARTLETT: Your Honor, once again, this is a

witness we've never been notified about. We have no notice of

this.

MR. BLOOM: That's not true. This is a notice I gave
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2235

him over the weekend.

THE COURT: If you look at the witness list, I think

she's listed as 32.

MR. BLOOM: Excuse me a second.

THE COURT: Is that the same witness?

MR. BLOOM: My apologies. This is also a character

witness. If there's any objection, I will do whatever the

Court directs.

MR. BARTLETT: It's 2:15, Your Honor. I would like

to be heard outside the presence of the jury.

THE COURT: All right. Let me have you take the

afternoon recess at this time. I will take this matter up,

and then you'll be back in here.

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

(Jury not present.)

THE COURT: All right, you may be seated.

Should the witness be out of the room?

MR. BARTLETT: I would ask that.

THE COURT: Let me have you step down and remain

outside.

(Witness departed courtroom.)

MR. BARTLETT: Our objection is twofold. First of

all, we didn't receive prior notice of this witness. And more

importantly, I wouldn't object that much if it's a character

witness. From my count, this is the sixth character witness
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2236

that we are calling. I think it is cumulative. We've heard

that a lot of people think very highly of her. This is just

cumulative.

THE COURT: Well, let me have Mr. Bloom respond to

that.

I have two witness lists here. I have one in pencil, and

it says 2/26, and of course her name is not on this list. I

don't know if number 32 on the witness list submitted at the

beginning of the trial, it says Dana Wrubel, is that the same

person?

MR. BLOOM: Yes.

THE COURT: This says Dana, and I believe she said

her name was Daria or something like that.

MR. BLOOM: It is in handwriting, Judge?

THE COURT: I don't have anything about a name --

yes, Daria, her name is on this list that was submitted today.

Do you have that?

MR. BARTLETT: I never got that, Your Honor.

THE COURT: Pat, you gave this to me. Did you give

everybody a copy?

THE CLERK: No, I thought Mr. Bloom did that.

THE COURT: All right, let's do this. Let me have

you look at the list -- I assume this is the list you are

intending to call today?

MR. BLOOM: Yes. Let me give you all the names.
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2237

THE COURT: Well, the government is claiming they

didn't get it, or you gave it to Pat, but Pat didn't

disseminate it or something. So let's find out, let them take

a look at the list.

Let me have you respond to the question as to whether all

of these witnesses will come and say that she's a person that

they know of as to have a reputation of nonviolence. Is that

the thrust?

MR. BLOOM: That's not the sole purpose of this

particular witness.

THE COURT: Which one, could you identify solely for

that? That's where the distinction's from.

MR. BLOOM: For character?

THE COURT: If they have something else to add to

that about something else, that's different; that becomes a

factual thing.

So let me have you -- we'll take the recess. I will have

you look at it and make those kind of identifications, then I

can tell you something, what I think about it. Okay?

We are at recess.

THE CLERK: All rise, court is in recess.

(Afternoon recess.)

THE COURT: You may be seated.

All right, we were talking about witnesses, how many of

them are purely character witnesses, and what's the end of the
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2238

line on that kind of witness, other than fact witness. I have

a new list here that's been provided. So I guess I am asking

both of you about this list. These are folks coming the rest

of the afternoon, is that right?

MR. BLOOM: Yes. And I want to say that none of

these witnesses is just purely a character witness. Each one

has important facts to talk about that relate to the issues of

this case.

MR. BARTLETT: I have no objection to those fact

witnesses getting on and testifying as to those facts, and it

should end there. They shouldn't be able to bootstrap

themselves by having a fact witness get on, talk a few seconds

about a fact, and then have them launch into more character

witnesses. These are eight additional witnesses. We've

already heard from five character witnesses.

The Court has had a chance to look at the cases. You know

they are not allowed to have just endless, endless, endless,

endless calling of character witnesses.

THE COURT: I understand that. You are talking about

an additional question, as to what do you think about

nonviolence; I suppose that is the issue. You are cutting a

fine line on the matter.

MR. BARTLETT: They just shouldn't be allowed to ask

the questions. They should get their facts on, and that

should be the end of it.
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2239

THE COURT: You made the objection, and the record is

made, and I have to see where that goes and where it leads to.

If it leads to something that's prolonged, then I would agree.

If it's strictly on the character thing, you are not parading

112 folks in to say the same thing. That's what I am talking

about when I say character.

MR. BLOOM: You've seen it, with the exception of

yesterday's witness who did go on for a while, Ms. Troxel, the

witnesses you've seen I've just asked a few questions. I

haven't prolonged it.

THE COURT: All right, are we ready now? I guess we

had Ms. Wrubel on.

Bring in the jury and bring her in.

Ms. Wrubel, do you want to bring her in?

(Jury present.)

THE COURT: All right, you may be seated. Questions.

MR. BLOOM: I don't know how far we got, but let's

kind of start over.

BY MR. BLOOM:

Q. Could you give the jury your name, please?

A. Daria Elizabeth Wrubel.

Q. Spell the last name.

A. W-R-U-B-E-L.

Q. How old are you?

A. Thirty-four.
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2240

Q. Where do you live?

A. I live in Berkeley, California.

Q. And are you married?

A. I am.

Q. Do you have any children?

A. I have an 18-month-old son.

Q. Do you know Briana Waters?

A. I do.

Q. Let me go back. What do you do for a living?

A. I teach nutrition and gardening at an elementary school in

Hayward, California.

Q. Do you know Briana Waters?

A. I do.

Q. Is that she over there?

A. It is.

Q. For how long have you known her?

A. We -- well, we met, I think, in December of 2001. We had

both been at Lark in the Morning music camp together in the

summer of 2001, but I don't really remember meeting her there.

But we did meet again in December, and then she moved in with

me at the beginning of February in 2002. I owned a house in

Oakland, California, and she was my tenant and my roommate.

Q. Could you describe how you remember that she moved in

February of 2002?

A. Well, I had just bought the house. It was the first house
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2241

I ever bought, so I remember distinctly it was December 5,

2001, that I closed escrow; it was a very exciting day. And

Briana came up in December to look for a place to -- or came

down, I guess -- to look for a place to live. We were

introduced by my friend Maleca, and I remember she needed to

go back to pack in January.

Q. Back to where?

A. Back to Olympia to get her things and drive down, and so

she moved in in February.

Q. And how would you describe your interactions with her when

she moved down?

A. Well, she became a very good friend very quickly. She was

just a pleasure to live with, a very generous and warm

roommate. I was really impressed at how she handled any

conflict in our household. If she thought that I was upset

about something or that maybe I had misunderstood anything

that she said, she was very quick to ask me about it and to

sit down calmly and talk about: How can we work this out? I

really want to make sure that you feel cared for and that we

understand each other and we don't have any misunderstandings.

So we became really good friends.

Q. And you know what she's accused of; is that correct?

A. I do.

Q. Did that in any way deter you from coming up to testify on

her behalf?
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2242

A. Not at all. I knew as soon as I heard what the

accusations were that they must be false, knowing her as I

did. And I have been a really strong supporter ever since. I

have donated money. I have helped care for Calliope when

Briana needed to meet with you. I have, you know, I've been

more than willing to come up here even though I had to take

time off from work and be away from my son because I know what

a good person she is.

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

you very much. I don't know if they do or not.

MR. BARTLETT: Nothing, Your Honor.

THE COURT: All right. You may step down.

MR. BARTLETT: Your Honor, I renew my objection.

This last witness was strictly a character witness.

MR. BLOOM: Excuse me.

THE COURT: I understand what you are saying. She

came down and she moved in with her. That doesn't go to the

ultimate issue in the case. So what I am trying to do is get

you to limit the testimony either as it goes to the factual

matters of issues in the case or a character witness.

MR. BLOOM: Each of the witnesses I am going to call

have factual things to talk about and they also know her. I

want to be able to ask traditional character questions.

THE COURT: Bring in the witness, and just remember

what I will accept.
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2243

MR. BLOOM: Just go over there, thank you.

JAY SCOTT DOANE, called as a witness, duly sworn.

DIRECT EXAMINATION

BY MR. BLOOM:

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

name for the jury, please?

A. Jay Scott Doane. D-O-A-N-E.

Q. When did you come to town this week?

A. I think our plane landed at 10:30.

Q. Could you speak a little louder?

A. 10:30 a.m.

Q. Would that be today?

A. Yeah.

Q. Now how old are you?

A. Forty-three.

Q. Where do you live?

A. San Francisco, California.

Q. What do you do for a living?

A. Computer programmer.

Q. How long have you done that?

A. Hmm, 15 years.

Q. Are you involved in the music world?

A. Yeah, I play the violin.

Q. For how long have you done that?

A. Same amount of time.
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2244

Q. I am sorry?

A. About the same amount of time, 15 years.

Q. Do you know Briana Waters?

A. Yes.

Q. Do you see here in the courtroom?

A. Yes.

Q. Could you identify her, please, point to her?

A. She's sitting over there.

MR. BLOOM: Indicating Briana Waters.

BY MR. BLOOM:

Q. I want to take you back to the fall of 2001. Do you

remember seeing Briana Waters at about that time, in the Bay

area?

A. Yes, I do.

Q. Could you describe the circumstances?

A. Yes. She flew down for a week. She stayed at my

apartment some of the time, maybe most of the time, in a spare

bedroom I had. And she was -- basically, I introduced her to

some fellow musicians, showed her around town a bit. And I

have a recollection of us going to -- at least one place to

find a venue for her to play Watch, her recently made video.

Q. Did you say to play Watch?

A. To -- yeah, to show it.

Q. To screen it?

A. To screen it, yeah.
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2245

Q. Did you ever see it?

A. Yeah, I have a copy.

Q. Are you saying that one of the reasons she visited was to

try to get her video screened?

A. Oh, absolutely. That was one of the highest priorities.

Q. Was she involved in any -- so far as you know, did you

have any discussions with her about any violent activities?

A. No.

Q. Have you ever had any discussions with her about any

violent activities?

A. No.

Q. Now, that week that she was there, in the Bay area, were

there any music events that you attended together or

participated in together?

A. Yeah, I believe. I don't have a clear recollection, but

there were at least one jam session that we went to with some

of my friends. I think it was actually at my apartment.

Q. You know what she's accused of; is that correct?

A. I don't know the exact counts, but I have a good idea of

what she's accused of.

Q. She's accused of committing arson, you know that?

A. Right.

MR. BLOOM: Judge, I just have one question I would

like to ask, a character question, if I may.

THE COURT: Ask it.
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2246

BY MR. BLOOM:

Q. Do you have an opinion -- how many times have you seen

Briana Waters in your life?

A. Hundreds.

Q. Have you formed an opinion about whether or not she is a

violent person or a nonviolent person?

A. Yes.

Q. What is that opinion?

A. She's a nonviolent person.

MR. BLOOM: I don't have any further questions.

THE COURT: All right.

MR. BARTLETT: Nothing, Your Honor.

THE COURT: You may step down.

Next witness.

I will have you come forward, if you would, and raise your

right hand and be sworn.

LAWSON DUMBECK, called as a witness, duly sworn.

THE COURT: Come around and take the witness chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Could you please state your name and spell both the first

and last name?

A. My name is Lawson Dumbeck.

Q. Use the microphone, if you would, please.

A. Lawson Dumbeck; L-A-W-S-O-N, D-U-M-B-E-C-K.
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2247

Q. How old are you?

A. I am 44.

Q. Are you married or single?

A. I am married.

Q. Do you have any children?

A. I have one daughter, a seven-year old.

Q. Are you employed?

A. I am employed as an assistant attorney general by the

State of Washington.

Q. And what does that involve, what kind of work do you do?

A. I am a lawyer, and I advise the State of Washington,

Department of Transportation, on labor and personnel matters

primarily.

Q. How long have you had that employment?

A. It's been a short period of time that I have been with

them, just two months, and I have worked for them also as a

clerk in the past.

Q. A clerk?

A. Law clerk in the past.

Q. I am missing the last couple of words.

A. Oh, excuse me. A law clerk.

Q. In the past?

A. In the past.

Q. That's what I was missing. Thank you.

Prior to that what kind of work did you do, or what did
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2248

you do?

A. I was in private practice, and I did appellate work in the

courts of appeal.

Q. In the state court or the federal court or both?

A. Both.

Q. Now, did there come a time when you met someone named

Briana Waters?

A. Yes, I did.

Q. Do you see her in the courtroom?

A. Yes, I do.

Q. Could you point her out, please?

A. She's sitting next to that man right there.

MR. BLOOM: Indicating Briana Waters.

BY MR. BLOOM:

Q. What were the circumstances of how you met her?

A. She appeared in my house. My wife teaches violin/fiddle

an she was a student of my wife's. We became friendly. She

was an excellent musician and had just a great way about her,

a very good personality, and so we became friends that way.

Q. Were there any further dealings that Briana Waters had

with you and members of your family?

A. Oh, yes. She would take care of my daughter when my

daughter was very young, and I developed a trust of Briana and

gotten to know her, so she was, I think, probably my

daughter's first baby-sitter. And really the, you know, the
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2249

nervous parents, the first time you step out, you want to give

your daughter to someone you trust. We had developed that

with Briana. So we really entrusted her with the most

precious thing that we had.

Q. Now, did she spend time with you and your wife in the

year's -- well, when did she spend time with you and your

wife?

A. From, I would say, late 1998 until 2002, we interacted

with her the most. There is a vibrant musical community in

Olympia, and we introduced Bri to that. We called Briana Bri.

And we watched her, you know, sort of get her wings as a

musician there and interact with those people and, you know,

just sort of light up the musical community, as she developed

her skills. And I had the honor of playing with her on her

first professional gig -- I think it was first professional

gig -- at Evergreen State College. And, you know, just having

seen over the years her go from sort of a beginning student to

playing just, you know, fabulously and making the music

together was something that was very meaningful to me.

Q. Do you ever recall talking about or advocating any kind of

violence?

A. Absolutely not. It would have been shocking to me if she

had.

Q. Is it fair to say that you are saying that the time you

spent with her did not in any way involve any kind of
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violence?

A. In no way whatsoever.

MR. BLOOM: I have no further questions.

MR. BARTLETT: Nothing, Your Honor.

THE COURT: You may step down.

Next witness.

MR. BLOOM: He's going to get the witness who is his

wife.

THE COURT: Is her testimony the same?

MR. BLOOM: Except in more detail about the music.

What's the problem? Why can't we call our witnesses? You

let them call their witnesses. Why can't we call our

witnesses.

THE COURT: Don't be yelling out when I am asking you

a question about anything. Now, if you want to address me,

you had better address me properly.

MR. BLOOM: Yes, sir. I was addressing the standing

up --

THE COURT: You were talking to me.

Step out for a minute, please.

(Jury not present.)

THE COURT: Now, let me say this. I raised the

question, I have raised it all along, about duplication, folks

saying the same thing. My question to you, what is different

in this witness's testimony than her husband, and that's when
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2251

you started shouting at me.

MR. BLOOM: I am sorry for shouting at you.

THE COURT: Now, tell me, if you will, what's

different in this testimony?

MR. BLOOM: That she is another fact witness who will

testify to what it was that Briana Waters was doing in the

period of the alleged conspiracy. That she is a witness who,

although she will testify to the same thing now, they have

called Lacey Phillabaum as a fact witness, and they have

called Jennifer Kolar as a fact witness. They are testifying

to the same thing. There's nothing wrong with that.

THE COURT: I understand that, but that's going to

the elements and the charges against this defendant. Here we

are talking about playing the violin and other things.

Granted, she may be an excellent musician. That's not the

issue here.

I am saying, if that's what it's about and that

interaction and baby-sitting, you are doing the same thing

over and over again. It's of no benefit here; it's prolonging

the case unnecessarily. That's what I am saying.

If it's purely a character witness, her husband has

testified to that, what he thinks of her, and I assume her

testimony is exactly the same. So now we are going to talk

about playing the violin again. Is that what we are going to

talk about again?
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2252

MR. BLOOM: About how Briana Waters was spending her

time in the period of the alleged conspiracy. That's --

THE COURT: Would they be talking about the same

period of time in the same way, is what I am asking you?

MR. BLOOM: Yes, of course.

THE COURT: Then I don't need that testimony.

MR. BLOOM: Well, you don't need it, but we do.

THE COURT: I am not going to let you have somebody

come in and say the exact same thing. If you bring in a

witness that says the same thing, I am going to tell the jury

to disregard it.

MR. BLOOM: If I may say this, as I pointed out, they

were allowed to, and they did, bring in not one but two

witnesses.

THE COURT: I understand your objection, but --

MR. BLOOM: Can I talk?

THE COURT: -- are you going to let me control this

courtroom, or are you going to stand up and forever tell me

how I should do this; or are you going to accept my rulings as

I give them and move on? Are you going to do that?

MR. BLOOM: I am going to accept your rulings, but

when I am speaking, I would like to be able to be permitted to

finish what I am saying.

THE COURT: You are never through, Mr. Bloom.

MR. BLOOM: I am sorry?
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2253

THE COURT: Finish.

MR. BLOOM: What I am saying is they are entitled to,

and they have, called fact witnesses to testify to the same

things. A party is permitted to do that unless it gets to be

like ten witnesses testifying to the same thing.

What Mr. Dumbeck has testified to, and Anthea Lawrence

will testify to, are two witnesses to testify as to what

factually Briana Waters was doing during the period of the

conspiracy.

We're not talking about ten witnesses. We're not talking

about over and over again. We are doing exactly what the

Court has permitted the prosecution to do; call more than one

witness about fact, about the facts of the case. That's what

this is about.

Now, if they also happen to like her and trust her, if you

want to tell the jury to disregard nice things that people say

about her, well, that's the court's prerogative. But these

are fact witnesses, and I want to call them as fact witnesses.

It's not the same thing over and over again.

THE COURT: They are fact witnesses, but fact about

what is the issue here.

MR. BLOOM: That she was not involved in any illegal

activity, so far as these witnesses knew, during the period of

the alleged conspiracy, period.

MR. BARTLETT: That description, Your Honor, is the
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2254

exact description of what a character witness is.

MR. BLOOM: Of course it is not.

THE COURT: I guess you and Mr. Fox are together, but

I don't know if you gather on some of these things or not.

MR. BLOOM: Mr. Fox thinks I should not tell this to

the Court. Well, I am telling this to the Court. It is

important for the record and for me to convince the Court.

THE COURT: You have made the record, and you have

convinced me that her testimony is the same as her husband's.

That's enough. Now move on to something different.

MR. BLOOM: So are you saying if she's going to

testify as to what Ms. Waters was doing -- not what a good

person she was, but what she was doing during the

conspiracy -- that I cannot call that witness?

THE COURT: You have told me that her testimony would

be the same: she worked for them, she babysat, she played the

violin, she was her teacher. All of that, that's got nothing

to do with this case. That's the same thing over again.

Unless you've got something going to some other fact, her

husband has said it.

So how many folks are you going to bring before this court

to say that they have had contact with her, and all of that

contact with her has been nonviolent?

MR. BLOOM: Judge, you are missing what I am saying.

I have said it, and I will say it again. It's not about that
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2255

she's nonviolent. It's about during the period that they knew

her, she was not talking about conspiracy to commit arson or

any other crimes. It is a fact witness that addresses the

allegations made in the Count 1 of the indictment, where they

describe a broad, far reaching conspiracy involving 17 arsons

with various people --

THE COURT: Bring her on.

MR. BLOOM: -- and you have permitted them to put in

evidence --

THE COURT: Enough talk. You bring her on, we'll

see.

MR. BLOOM: Okay.

THE COURT: See if she says the same thing her

husband says. Okay.

(Jury present.)

THE COURT: You may be seated.

Have him bring in the next witness.

I will have you come forward, ma'am, if you would, and

raise your right hand and be sworn.

LAURIE MEEKER, called as a witness, duly sworn.

THE COURT: Just come here and take the witness

chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. Good afternoon. Could you please tell the jury your full
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2256

name and spell your name for the jury, please? And if you

could use the microphone, that would be good.

A. Good afternoon. My name is Laurie Meeker, L-A-U-R-I-E,

last name Meeker, M-E-E-K-E-R.

Q. How old are you?

A. I am 50 years old.

Q. Do you have -- are you employed?

A. Yes. I work at the Evergreen State College. I am a

college professor.

Q. Could you use the microphone, if you would? Pull the

microphone to you.

A. Certainly.

Q. Thank you.

What kind of professor?

A. College professor at the Evergreen State College.

Q. How long have you been there?

A. Since 1989.

Q. What did you do before that?

A. Before that I lived in Portland and worked at the Portland

Art Institute, Portland Art Museum, and taught some film

classes there.

Q. And you say taught film classes. Are you in a particular

department at Evergreen?

A. We don't actually have departments, but I am in the

expressive arts program planning area, so I teach media
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2257

studies primarily. And we do interdisciplinary studies there,

so we also have some disciplinary programs like a media

program, called media works.

Q. For how long have you done that?

A. Well, since I started at Evergreen in 1989, I have been

teaching in that area.

Q. And were you teaching there -- do you know Briana Waters?

A. Yes, I do.

Q. Do you see her in the courtroom?

A. Yes, I do.

Q. Could you point her out, please?

A. That's her right over there.

Q. Thank you. Did there come a time during your teaching

tenure that you came to meet Briana Waters?

A. Could you repeat that?

Q. Did there come a time when you, while you were teaching at

Evergreen, that you met Briana Waters?

A. Yes. She was a student in the media works program. And

at Evergreen, it is year-long program, so the students take

that full-time. That's the only thing they take, so we get to

know our students fairly well.

Q. Would you describe her; were you an advisor or teacher, or

how would you describe your relationship with her?

A. I was teaching that program. There were two of us. So I

was her proffer while she was a student in my class. And I
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2258

also supervised her work directly. The first quarter my

colleague supervised her work. In the second and third

quarter I was her faculty supervisor, so that means that I was

responsible for evaluating her work and meeting with her

individually, as well as interacting in the classroom with

other people.

Q. How was your relationship with her?

A. Cordial, professional, student-teacher relationship.

Q. Did there come a time when she got involved in a

particular media project?

A. Yes. In the spring quarter, all the students had the

opportunity to develop their own projects, and so that was the

time when she started to develop a documentary. And as I

recall -- and this is true for every spring quarter in media

works, the students develop a proposal and do some research

and start the project development, and I believe that her

project Watch was started at that time.

Q. You say watch; is that the word you used?

A. I believe that's the name of the documentary.

Q. Could you describe, as you understood it, what it was she

was doing with that project?

A. As I recall -- well, it was in initial development at that

time, so she was -- she was doing research about the Gifford

Pinchot National Forest, about forest preservation, and I

think it was in initial development at the time. So I think
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2259

she was doing mostly research and some initial shooting for

the project.

Q. What was the interaction between you and Ms. Waters with

regard to that project?

A. I evaluated her proposal and probably talked to her about

some of the ideas. I don't have a lot of memory about

specifics around where the project -- how the project was

developing, except for the sort of general topic of forest

preservation and protecting old growth forests in the national

forest.

Q. Did it work so that there were periodic updates or you had

discussions with her about how the project was going?

A. I think so. But as I said, it was in, you know, the

initial phase of development. So we probably had critiques

during the program where she might have shown some footage,

but I think it was just in its beginning phases. And after

she was out of media works, she continued to work on it. I

believe we had one or two meetings about it after that, just

as providing support and encouragement for the project.

Q. Do you remember whether or not she finished the project

while she was still in school, or did she finish it after she

graduated?

A. I don't remember.

Q. Did there come a time when you viewed either a work in

progress or a final cut of the documentary?
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2260

A. I think I saw the work in progress, but I don't believe I

saw the final version of it.

Q. Okay.

A. I don't remember seeing one.

Q. In your dealings with her, were there any problems?

A. No problems. She was a responsible student. She was

probably one of the best students I have had. She followed

the rules. Even though we don't have grades at Evergreen, we

have high standards for getting work in on time, and she did

all of that really well. She was enthusiastic and engaged as

a student. And I just remember her as being really sweet; a

sweet, nice person to work with.

Q. Is that campus, the buildings in that campus -- are they

all pretty much open 24-hours a day, seven days a week or are

they locked? How do you remember how the facilities are

managed?

A. It depends on the facility. Our building, the

communications building, we had -- we have regular staffed

hours, but because it's kind of isolated, it closes at a

certain time. It closes at 9 or 10 or 11:00 at night, and

it's locked and closed after that.

Q. I assume in that building there is some expensive

equipment that would need to be secured, is that fair to say?

A. Yes.

Q. Now, can someone reserve a room for use at off hours or
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2261

business hours?

A. Yes.

Q. How would one do that?

A. There's a process for -- once students have been in a

media program and become proficient with the equipment, their

ideas are put onto a list through media loan, which is part of

the library, and so they can check out a key and have access

to the equipment. There were -- at any of the suites, that

were 24-hour access with a key access.

Q. You would have to get a key from someone?

A. During business hours at media loan, yes.

Q. So in order to do that, you would have to go to a person,

an employee at Evergreen, and say I want to use the room, and

my name is so-and-so, and can I have a key?

A. That's right. You'd have to be a student in good

standing, and that means that you return equipment regularly

and don't check it out over your deadlines and so forth.

Q. If you were not a student any longer, could you check out

a room?

A. No.

Q. When somebody would do that, would there be some kind of

record kept that that happened?

A. Yes.

Q. Did that have to do with just plain security, right?

A. Yes, and keeping track of the equipment and keeping things
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2262

in good working order. That's correct.

Q. Okay. I don't have any further questions. They may or

not. Thank you very much.

A. Thank you.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. The description that you talked about, checking out a

room, refers to the building that you work in, correct?

A. Yes. That building, and also the library building where

some of the other media equipment is housed. So it refers to

both buildings.

MR. BARTLETT: Thank you.

THE COURT: This witness can be excused?

MR. BLOOM: I don't know if they are finished.

MR. BARTLETT: No further questions.

THE COURT: You may step down.

Let me have you step up here and raise your right hand and

be sworn.

GARY VARNELL, called as a witness, duly sworn.

THE COURT: Take the witness chair.

DIRECT EXAMINATION

BY MR. BLOOM:

Q. What is your name?

A. Gary Varnell.

Q. Could you spell that, please, for the jury?
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2263

A. Yes. G-A-R-Y, V-A-R-N-E-L-L.

Q. How old are you?

A. I am 34.

Q. Are you married or single?

A. Single.

Q. Where do you live?

A. In Lacey, Washington.

Q. Where is Lacey in relation to, let's say, Olympia?

A. It's right next to Olympia.

Q. Could you use the microphone?

A. Yes. It's right next to Olympia.

Q. Thank you.

And what do you do for a living?

A. I am a graphics artist.

Q. Graphics artist, did you say?

A. Yes.

Q. What does that mean?

A. I do graphics art, like 3D animation, video editing, and

then also computer programming.

Q. For how long have you done that?

A. Over ten years.

Q. Were you doing that in -- obviously, you were doing

that -- well, what year did that begin? Ten years ago?

A. Yeah, ten years ago.

Q. Did you come to know somebody named Briana Waters?
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2264

A. Yes.

Q. Do you see her in the courtroom?

A. Yes, I do.

Q. Could you identify her?

A. Yes, she's sitting in the chair right over there.

Q. Are you in the world of environmental work?

A. Me personally?

Q. Yes.

A. No.

Q. How did you come to meet Briana Waters?

A. She was working at the mall, at a company called Picture

It. And she was working with Photoshop, and I had been

working with Photoshop for a long time and just struck up a

conversation, and we became friends after that.

Q. You say working at the mall. Was she employed at that

place or was she using the equipment?

A. She was employed.

Q. And you struck up a conversation with her?

A. Yes. She was doing some work in Photoshop, doing some

photo retouching.

Q. What did you talk about with her?

A. Mostly technical aspects of Photoshop.

Q. Did you come to learn from her that she was working on a

particular project?

A. That was before she was working on any particular project.
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2265

Like the Watch video, I assume is what you are talking about?

Q. Yes, I am.

A. It was prior to that.

Q. Did there come a time when she discussed with you working

with you, or you working with her, on the Watch video project?

A. Yes.

Q. Can you remember what year that was?

A. Not -- I can look and see.

Q. Did you bring with you -- did I ask you to bring with you

a printout that would reflect the work that you did on the

Watch video project?

A. Yes, you did.

Q. Have you done that?

A. Yes, I have.

Q. If looking at that refreshes your recollection, feel free

to look at it.

A. Yes, it was in 2001.

Q. Okay. And what part of 2001?

A. Around March. We discussed the project prior to doing any

computer work. All I have with me are computer printouts of

when files were created, when we logged video footage, that

type of stuff.

So we would have discussed the project prior to that.

Q. About how long prior to that, would you say?

A. My guess would be maybe a year prior to that.
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2266

Q. You say a year?

A. Yeah, possibly.

Q. So is it fair to say we are describing a collaboration

that began with general conversations about how to get into

it?

A. Yes.

Q. And your recollection is that it was maybe a year before

the actual editing was done that you had these first

discussions?

A. Yes, something like that.

Q. How often before you actually got to the editing -- about

how many times would you say you and Ms. Waters discussed the

project?

A. I can't recall exactly. I know that she -- I offered to

help with the editing of the project, so, you know, she let me

know when she was filming and kind of what she was doing, kept

me, you know -- kept me up-to-date as to what was going on and

when we would actually, you know, start working on the

project.

Q. Did you understand more or less what the project was

about, what the subject matter was?

A. Yes.

Q. What was that?

A. About deforestation mostly.

Q. And the word "Watch," where did that come from? Do you
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2267

know what that related to?

A. Yes, Watch Mountain. It was a particular mountain that

was proposed to be clear-cut, that would have had

consequences, and so they were protesting to stop.

Q. Now, when did you actually begin the editing?

Let me withdraw that?

What does editing involve? Describe that to the jury.

A. First you have to go through all the footage, log it all

so you have a record of what's on what tape and whereabouts.

Then you capture all that in the computer.

Then basically edit it, and we were doing it nonlinearly,

meaning we could take pieces and drag and drop them wherever

we wanted to help, you know, tell the story.

Q. That means that you are not there snipping pieces of film;

you are doing it digitally, is that correct, with a computer?

A. That's correct.

Q. And that's a lot easier than snipping, right?

A. A lot easier than snipping it. It becomes a lot more

creative process because you can do things, make changes, see

how this will look, decide you don't like it. Whereas

physically cutting tape is a linear process, and going back

and redoing anything involves a lot more time.

Q. The footage, the raw footage, where did that come from?

A. Briana provided all the raw footage for the video.

Q. And then somehow was it -- I don't know if this is the
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2268

right word -- digitalized?

A. Yes. The original footage was in several different

formats. Some was film, eight millimeter. Some was digital

already. Some was on VHS. So various formats.

Q. You have the skills to be able to put it all into digital

form; is that correct?

A. That's correct, yes.

Q. That's who you are; that's what you do?

A. Uh-huh.

Q. People might call you, what, a computer nerd, right?

A. Yeah.

Q. That's a phrase that is used for people with your kind of

skills, right?

A. Uh-huh.

Q. How much were you paid to participate in this?

A. I don't believe I was paid anything. It was a long time

ago, so my recollection isn't that great. But I don't have

any records of a computer, of ever receiving any money for the

project.

Q. Was Briana a person of means at the time? A lot of

money -- did she have a lot of money?

A. No.

Q. Now, when did you actually begin the processing, the --

would digitalizing or -- tell us what you did first.

A. Digitizing, yeah, that would be correct. After watching
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2269

all the footage and logging it into the computer, at what time

what scene occurs, you know, we are looking through the video

for scenes of interest, things that we might want to use in

the final video, or particular scenes that, you know, might be

useful in the final video.

After logging all that, then we are able to basically say,

for this tape we want scene A, B, C, D, E, F, G, and the

computer will rewind, fast forward the tape, and grab just

those scenes and digitize them.

Q. When did you begin that process?

A. Of actually capturing thumbnails?

Q. Yes.

MR. BLOOM: May the record reflect the witness is

looking at a document.

A. It will take me a couple pages here.

BY MR. BLOOM:

Q. Sure.

A. These are all files from an animation sequence, so there's

a lot of them.

Q. Animation sequence in Watch or in something else?

A. In Watch.

If I had the computer, I could do all this a lot faster.

Q. Okay. Take your time. Just come up with the best answer

you can.

A. Well, I've got -- I mean, these are the batch lists that
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show all the files. Unfortunately, I don't have the dates on

these printed out.

Q. Let me withdraw that question.

As you remember what year it was, I think you said it was

2001?

A. Yeah. Well, I know we didn't render out the introanimation until we started editing the project, and that was

on March 25 that that was rendered out. The first news clip

in the video, we captured that on March 24.

Q. Now, did there come a time when the editing -- as the

editing was going along, that there was a decision made about

the very first scene that was going to be shown?

A. Yes.

Q. And that was somebody breaking a television set with a

sledge hammer; is that correct?

A. That's correct.

Q. And whose television set was that?

A. It was my television set.

Q. Was it already broken?

A. Yeah, it didn't work any more.

Q. Who was the person that you -- did somebody actually film

that, or take that --

A. Yes, I filmed that scene. That scene was actually kind of

my idea. It provided some technical difficulties,

rotoscoping, and so I wanted to do that scene.
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2271

Q. To develop your technical skill?

A. That's correct.

Q. Who was the person who was holding the sledge hammer?

A. Briana was.

Q. So when, if your records indicate, the work on the

project, was it 9:00 to 5:00, was it -- when, do you recall,

or if your records reflect --

A. We were mostly working late, like 6:00, 7:00 on, because I

was running a business. So we would do it after business

hours.

Q. You say 6:00, 7:00; you mean 6:00, 7:00 p.m.?

A. That's correct.

Q. Until about when?

A. Sometimes 3:00 or 4:00 in the morning.

Q. You would be working on it together?

A. Yes.

Q. And for how long did that go on; was it days, weeks,

months?

A. Weeks.

Q. Did there come a time when there was a finished product?

A. What was that?

Q. Was there a time there became a final, finished product?

A. Yes, that's correct.

Q. About when was that?

A. Let's see, the last day I have would be like April 17th,
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2272

was when we printed out the cover for the video. So the video

would have been produced at that point.

Q. If you were to see it, would you be able to recognize that

that's your work?

A. Yes.

MR. BLOOM: I would like to start the film, with the

Court's permission. I would like to offer it into evidence.

THE COURT: Just a minute. Is there an issue with

this?

MR. BARTLETT: I do, Your Honor. I object.

THE COURT: All right.

MR. BARTLETT: I have no objection to the video being

entered into evidence. The jury can see it back in the jury

room, if they choose to see the 60 minute video. I think it

is irrelevant to this jury's deliberation.

BY MR. BLOOM:

Q. Does this video reflect how Briana Waters was spending her

time, both editing and filming?

A. Yeah, I think so.

MR. BLOOM: I would like to show this to the jury,

please.

THE COURT: I will take it up at the end of the day

as to this movie, but continue asking whatever questions you

may have.

MR. BLOOM: I don't have any other questions of this
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witness.

THE COURT: Okay.

CROSS-EXAMINATION

BY MR. BARTLETT:

Q. Can I just clarify one thing in my mind. You said that

there was -- I understand the video was finished April 17?

A. Uh-huh.

Q. With regard to the actual film footage that you put into

the computer that you are kind of cutting and pasting, was

that filming going on during this time period at Watch

Mountain?

A. No, all the footage had already been filmed at that time.

Q. Do you know when that filming had ended?

A. No, I do not.

MR. BARTLETT: Nothing further.

THE COURT: Do you have any other questions for this

witness?

MR. BLOOM: No, I don't.

THE COURT: Then you may step down.

Your next witness.

MR. BLOOM: May I have a moment, please?

We've offered A-69 into evidence, and I would like to play

it for the jury.

THE COURT: I said I would like to take it up at the

end of the day.
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2274

MR. BLOOM: It affects what we have here because we

have witnesses --

THE COURT: I will take it up at the end of the day.

You may call your next witness.

MR. BLOOM: Well, we have a problem because the next

witnesses have been objected to.

THE COURT: Well, I don't know if you have anybody

else to call or not. You should have your witnesses lined up,

so you can go see if you have any out there.

MR. BLOOM: Could I ask the jury be excused so we can

discuss this?

THE COURT: All right. Keep your books on your chair

and step out for a moment.

(Jury not present.)

THE COURT: All right, you may be seated.

Yes.

MR. BLOOM: Yes. Apparently there's no objection to

it being admitted. Given that the prosecution was able to

publish and should be able to publish anything that's in

evidence, I would like to publish what's in evidence. I don't

see any problem with that.

THE COURT: Okay.

MR. BLOOM: Now, the fact is that because of the

issues raised by the prosecution with regard to their efforts

to limit our character witnesses, the witnesses that we have
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2275

prepared to testify are going to be a problem. The Court has

indicated that if they testify to character, you are going to

strike the testimony of the witnesses. We surely don't want

that to happen.

THE COURT: I want you to talk about that exhibit

there.

MR. BLOOM: There's no objection to it going into

evidence.

THE COURT: Well, I heard an objection. I have to

hear from that side. You tell me -- you don't think there's

any objection, it's admitted, and they should see it. Is that

right?

MR. BLOOM: Yes.

THE COURT: Then let me hear from you.

MR. BARTLETT: Your Honor, I misspoke earlier. I am

tired, it's at the end of the day, I apologize to the Court.

I do not want this video admitted into evidence. I am

objecting to its admission on the grounds of 403, relevance,

and I will put that on the record before the jury. I wasn't

trying to sandbag anybody.

I don't think it's relevant. I would ask the next witness

be called, and the argument with regard to the relevance of

the Watch video be put off until after the witnesses are

called, and we can get through some stuff today.

THE COURT: Do you have any other witnesses?
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2276

MR. BLOOM: I have.

THE COURT: I don't remember this coming up before

about this video, other than discussion about it, in terms of

it being an exhibit, and the court hasn't addressed that in

any way. So I would have to not only go over the objections;

I need to see what that is because I don't know what you are

trying to make of this. So I would be concerned about it from

that standpoint.

I will look at it. I don't know if it says any more than

the witnesses have said, but I need to look at it to see.

MR. BLOOM: There has never been, before now, any

objection to this exhibit. They have never filed any motion

with regard to a motion in limine. We gave them a copy of

this maybe a year ago. There's never been any indication that

there was going to be an objection.

Mr. Bartlett talks about not trying to sandbag us. In

fact, there has never been an objection. They had every

opportunity. We have said we were going to put this in

evidence. I have said it in my opening statement, that I hope

you get to see it, if the judge permits it.

MR. BARTLETT: And that's an indication, Your Honor,

that Mr. Bloom in his opening statement realized --

MR. BLOOM: Excuse me, but I wasn't finished.

MR. BARTLETT: I'm sorry, Your Honor, I thought he

was done.
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2277

MR. BLOOM: There has never been an indication before

now that we would not be permitted to show this video. Never.

Never any indication that they were going to object to it, not

once. Not one objection after the opening statement. Not one

objection when we put it on our exhibit list. Nothing. They

now are trying to stop this jury from seeing what it was and

how Briana Waters spent her time, after putting in Disneyland,

Statue of Liberty.

Judge, this is just not right for the jury not to see how

she spent her time for a period of three years during the

period of the alleged conspiracy; how she spent her time

editing this day and night with regard to the period just

before the arson of which she's accused.

THE COURT: And that's what you wanted to show, is

that the purpose of it?

MR. BLOOM: It also rebuts the very clear efforts to

prove, by the government, that she's promoting violence. This

proves what she did, who she is, how she was spending her

time, both during the filming and the campaign and the editing

and later the distribution of this video.

THE COURT: If you have to sum it up in one statement

as to what you intend to have this movie portray, tell me

that.

MR. BLOOM: What I just said.

THE COURT: You are going on and on. Can you briefly
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2278

summarize it for me?

MR. BLOOM: How, during the period of the alleged

conspiracy, how she spent her time. How she was not involved

in violence. How she was involved in what was testified to,

as an effort to bring together diverse forces; the loggers on

the one hand --

THE COURT: You are getting as long on this one as

the other one.

I am going to get to you, Mr. Bartlett.

I am trying to understand -- let me see if I can

summarize. You want the film to show what she was doing at

this point in time, correct?

Is that correct?

MR. BLOOM: That's partly correct.

THE COURT: Is it correct or not?

MR. BLOOM: That part that you have stated is

correct, but it is not --

THE COURT: This is going to be something about what

she was about in terms of character or whatever?

MR. BLOOM: No, the part that you stated was correct,

but that's not all. What's also important is to show that

contrary to the major efforts of the government to prove

otherwise, she was not a person who was promoting violence.

On the contrary.

THE COURT: That's what the movie is intended to do,
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2279

to show that she was not promoting violence?

MR. BLOOM: That is one of the things. The Court

stated one thing, and I have added to it.

THE COURT: Okay.

MR. BLOOM: That this is how she was spending her

time. That's part A.

Part B, that she was not promoting violence.

C, that she was working on this very lawful project during

the time, in particular, just preceding the arson that was

committed by the Government's witnesses.

THE COURT: How she's spending her time is the same

thing as working on this project, isn't it?

MR. BLOOM: I was being specific as to the time

period; that there are really two time periods here. One is

the time period that's alleged in Count 1, with regard to the

conspiracy; and two is the time period just preceding the

arson that was committed by the government witnesses. To show

how she was spending her time specifically at that critical

time.

THE COURT: All right. Have you included everything

that I should know about in terms of making a decision as to

whether or not they should see it?

MR. BLOOM: Let me consult with my cocounsel.

THE COURT: All right.

(Brief pause.)
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2280

MR. BLOOM: Yes, there's an additional reason, it's

to rebut the evidence that was submitted -- not only submitted

and put in evidence over our objection, in the folder, the

folder of materials that the witness Kolar claims she received

from Briana Waters, the materials where Mr. Bartlett took a

yellow highlighting pen and highlighted inflammatory parts of

those exhibits and had a witness read to the jury those

particular parts.

THE COURT: Those particular parts would go to what?

MR. BLOOM: The reason it appears, and it was stated,

that the alleged relevance of those parts would demonstrate --

and I can't see any other reason -- demonstrate that

Ms. Waters was somehow in agreement with the portions that the

prosecutor highlighted in yellow pen and then had a witness

read to the jury.

THE COURT: I wish I could get you to narrow things

down. Are you saying it's going to rebut some evidence about

what the material in those folders said? Is that about

violence versus nonviolence?

MR. BLOOM: That's a third reason why we would like

to play this. And a fourth reason is that she has a Sixth

Amendment right to present her case, and that she will be able

to testify, it would be hoped, if she testifies, that this is

how she was spending her time.

This is just to make sure, to answer the question, the
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2281

Court's question directly, we have given so far, now, four

reasons why the Court should permit the jury -- should admit

this evidence and permit the jury to see it.

Staying on the third reason that I was talking about, for

whatever reasons, the Court decided that it was okay for

Mr. --

THE COURT: I know, I have ruled on all of that. I

am trying to get all of your reasons why this should be in.

Once I get all of your reasons, I will hear from the other

side as to what they think about it, because they are

objecting to it. I am trying to get you to give me a

completeness of what your position is.

MR. BLOOM: That's what I'm doing.

THE COURT: Have you done it all?

MR. BLOOM: No, I haven't. I wasn't quite finished.

THE COURT: What else is there?

MR. BLOOM: I was continuing as to the third reason,

that Mr. Bartlett chose to essentially adulterate an exhibit

by highlighting what clearly are inflammatory portions of

materials that were among many documents, and not only chose

to highlight it, but actually had a witness read to the

jury --

THE COURT: I thought you just mentioned that. I

heard all of that and saw all of that. I don't think you need

to go through all that again. You just need to highlight and
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2282

tell me what it is you are trying to show.

MR. BARTLETT: Your Honor, could I suggest that we

finish with witnesses today and bring this up tomorrow morning

at 8:15 so we are not wasting the jurors' time? Or at the end

of the day.

THE COURT: If we keep talking it will be 4:00, and

maybe that's the point of it all, I don't know.

Do you have another witness out there?

MR. BLOOM: We don't have another witness ready to

testify.

THE COURT: Let's bring the jury in so that I can let

them go, and then I will take this matter up.

MR. BLOOM: Thank you.

THE COURT: And then I am going to deal with the rest

of the witnesses.

MR. BARTLETT: Your Honor, my understanding is Sarah

Vekesi is outside the courtroom.

THE COURT: Who?

MR. BARTLETT: That Sarah Vekesi is outside the

courtroom.

MR. BLOOM: I have not had an opportunity to speak

with her.

THE COURT: If you have a witness out there, can the

witness be through in ten minutes?

MR. BLOOM: I am sorry?
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2283

THE COURT: Just a minute.

Mr. Fox.

MR. FOX: I thought we were rising for the jury.

THE COURT: Yes. Do you have a witness there?

MR. FOX: There are people that Mr. Bloom has called.

I don't believe that Mr. Bloom has prepped one of the

witnesses yet.

THE COURT: You call these witnesses; surely you've

talked to them. You don't call somebody you haven't talked

to, do you?

MR. BLOOM: I have called and asked this witness to

appear. She has come from out of town --

THE COURT: All right, you have two minutes to go out

there and talk to this witness, and I will bring the jury and

you can call your witness.

MR. BLOOM: I am asking if we can break today so that

I can have the opportunity to prepare my witness. Is the

Court denying me that opportunity?

THE COURT: Mr. Bloom, you know, you are really

trying my patience.

MR. BLOOM: I am sorry I am doing that, Judge. I am

just asking for a ruling, and I am asking the question. I am

giving you the facts.

THE COURT: I will bring in the jury and I am going

to let them go home, but let me say this to you: You are
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2284

pushing the envelope with me. Stop it.

Bring in the jury.

(Jury present.)

THE COURT: Okay, you may be seated.

Ladies and gentlemen, I am going to recess this matter for

tonight and you are going to get your next witness first thing

tomorrow morning at nine clock. Rather than have you around

while we take care of some business here, you might as well --

we have ten minutes to go, so you might as well be on your

way.

As always, do not discuss the case or do anything about

the case. Everything you need to decide the case you will

receive here in the courtroom.

Have a good evening. Leave your books on the chair. See

you here at 9:00.

(Jury not present.)

THE COURT: All right, you may be seated.

MR. FOX: Your Honor, there is another person out

there, but I think he would probably --

THE COURT: Well, I just wanted --

MR. FOX: He would probably fit under the character

thing that the prosecutor is objecting to.

THE COURT: Stop your stalling, and let's get this

case moving.

Are you finished saying what you have to say about the
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exhibit?

MR. BLOOM: No, I have one more thing to say.

THE COURT: Briefly give that to me, if that's

possible.

MR. BLOOM: Today in the court, Mr. Bartlett did a

masterful job of attempting to impeach the witness --

THE COURT: What is it you want me to see in this

exhibit? I am talking about this exhibit. Is that what you

are talking about?

MR. BLOOM: Yes, I am.

THE COURT: Then please get to the point.

MR. BLOOM: -- did a masterful job of attempting to

impeach the witness James Dawson with reference to the Earth

First, suggesting that they were involved in violence.

Indeed, the people who were involved with Ms. Waters in the

town of Randle, some of them were members of Earth First.

We want to show this video for yet another reason, and

that reason is to neutralize and to address the devastating

impeachment brought upon by Mr. Bartlett of the witness James

Dawson.

There was no question that the jury would be affected by

those kinds of questions, and we want to -- yet another

reason, a fifth reason we want to show this video, is to rebut

the implications that were raised by Mr. Bartlett's

interrogation -- I should say questioning, cross-examination
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of Mr. Dawson. So that's yet another reason why we believe

this video should be shown.

THE COURT: Have you completed everything on it?

MR. BLOOM: Yes.

THE COURT: Mr. Bartlett? Let me hear from you.

MR. BARTLETT: Your Honor, it's the equivalent of

somebody being charged with a bank robbery and wanting to

bring in that during the pendency of the bank robbery they

have also written a fine novel and want to introduce and read

the novel to the jury. It is simply irrelevant. She's talked

about this. In fact, we've heard a lot of information from

the witness exactly what she was involved in.

It is my understanding she's going to testify, and she can

describe all of those things.

But in truth, the video itself is irrelevant. It has

nothing to do with this case. She can talk about what she's

done. In fact, we've heard a lot of testimony about it. I

don't think there's any question in the jury's mind. But

under a 403 analysis, it's simply not relevant to this jury's

consideration.

She was involved in making a video, as I understand it,

all of the filming of which was finished in 1999 and the

editing of which was finished in April 2001. I just don't

understand the relevance of that to the jury.

I simply don't think that the Court should waste an hour
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2287

of this Court's time watching this video.

THE COURT: That's your objection?

MR. BLOOM: May I ask to rebut that?

Mr. Fox has some ideas that he's trying to convey to me,

but I think it would save time if the Court would hear him

directly.

MR. FOX: To do the rebuttal to Mr. Bartlett rather

than Mr. Bloom.

THE COURT: I will hear this. It's a motion; I will

hear this.

MR. FOX: Your Honor, if the government hadn't

consistently raised issues about what was inside of

Ms. Waters' mind in the spring of 2001; if the government

hadn't brought in the Hey Woman folder and argued to the jury,

hey, this is what Briana Waters -- this is the type of thing

that she was thinking at the time -- if the government hadn't

brought in Tiffany Tudder to talk about the statements to the

New York Times reporter, to argue this is the type of

person -- because of their statements, because of their

beliefs, is the type of person who could commit an arson,

well, then perhaps the actual video of Watch would be

irrelevant.

But we need to show this video to rebut what the

government has raised about Ms. Waters' beliefs.

They have presented their evidence. We've objected; you
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2288

let it in. We would like now to present evidence of what

Ms. Waters was thinking and what her belief system was, only

to rebut what they plan to introduce and what they plan to

argue to the jury.

Thank you.

MR. BARTLETT: Your Honor, under Federal Rule of

Evidence 404, you can prove character through reputation and

opinion. You cannot prove it through specific instances.

What they are attempting to do is to violate Rule 404.

MR. FOX: It's not character, Your Honor.

MR. BARTLETT: It is character, Your Honor.

THE COURT: At some point in time you have to stop

talking and then it's going to become my decision.

MR. FOX: That's true.

THE COURT: Now, I think I have heard everybody as to

why you say it ought to be in and why you say it shouldn't be

in. That's what the Court will have to look at and decide.

I don't know what this exhibit is about.

MR. FOX: Would the Court like to see it tonight?

THE COURT: I don't know if I want to sit up all

night and watch this. I might want to watch something else.

But I will have to know something about this before I make my

decision.

I think it is fair to say, and I can take this from your

position, it's not about any of this. It's about -- and I
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2289

think we heard the testimony of Ms. Troxel, I think it was,

about what was going on and all this good work about the

logging and what it would do to that community. It's all

about Watch Mountain and those kind of effects. So it's all a

good thing, I guess, in terms of what Ms. Waters was doing as

it comes to conservation and those kind of things.

MR. FOX: Or really what is inside her mind, Your

Honor. I guess if the government brings in the Hey Woman

folder, Tiffany Tudder, to say this is the real Briana Waters,

well, this rebuts that.

THE COURT: That wasn't my question. My question, is

it about what I just said?

MR. FOX: No, is the topic of the movie about that?

THE COURT: Yes.

MR. FOX: Yes.

THE COURT: And then it's going to show then, maybe,

what's going on in her mind by what she's producing?

MR. FOX: Yes.

THE COURT: I think that's what I said. Somehow I

don't seem to get through to folks very well. But that's the

issue?

MR. FOX: Right.

THE COURT: All right. You have some witnesses lined

up for tomorrow now, and you have all the time you need to

talk to them?
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2290

MR. BLOOM: Yes.

THE COURT: I want you to do the same thing I have

asked before. Give the other side who's going to testify and

the gist of that testimony so we don't have to stop all these

things because they don't know what these witnesses -- I asked

them to do it for you. I am asking you to do it for them. I

don't know what the problem is here.

MR. BLOOM: Fair enough.

MR. FOX: Your Honor, if the Court does want to take

the time, there is a copy here. We can get you another copy.

THE COURT: Okay. I would imagine one is there, if

you did what I asked you to do.

MR. FOX: It's been premarked, so it is there.

THE COURT: That's what I said.

MR. FOX: It's A-169. Thank you.

THE COURT: All right. And we say we are ready at

9:00 in the morning for the jury. If anything else needs to

come up about this -- I am expecting you to have witnesses

here and ready to go. If I don't get to that during that

time, I want you ready to go at 9:00.

MR. BLOOM: We will be. And I should point out, we

put on ten witnesses today. Not easy. We have done the best

we can.

THE COURT: I am talking about tomorrow.

MR. BLOOM: And we will do the best we can tomorrow.
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THE COURT: But we came short at the end of the day

today.

Let me ask you to do this -- and I mentioned this once

before -- don't assume because you bring in a witness there

will be cross-examination, if you are trying to figure time in

the day. Bring enough witnesses assuming nobody is going to

cross-examine, and you don't run out of witnesses. I want to

do a day's work, and that's what I come here to do. So don't

make me quit early, okay?

We'll be at recess. I will see you back here at 8:30.

THE CLERK: All rise, court is adjourned.

(The Court recessed to Wednesday, February 27, 2008,

at the hour of 8:45 a.m.)

* * * * *

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