1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2501

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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

)

Plaintiff, ) Tacoma, Washington

) February 28, 2008

vs. )

)

BRIANA WATERS, ) VOLUME 13

)

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.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2502

I N D E X

INDEX OF WITNESSES

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

Instruction Conference.................................. 2503

REBUTTAL WITNESS ON BEHALF OF PLAINTIFF: Page

CHRISTOPHER FORD

Direct by Mr. Bartlett.......................... 2546

Cross by Mr. Fox................................ 2549

GOVERNMENT RESTS........................................ 2558

EXCEPTIONS TO INSTRUCTIONS.............................. 2559

COURT INSTRUCTS JURY.................................... 2569

CLOSING ARGUMENTS:

By Mr. Bartlett................................. 2587

By Mr. Bloom.................................... 2643

Rebuttal by Mr. Friedman........................ 2718

INDEX - EXHIBITS

EXHIBITS Page

No. 1124 2548

No. A-216 2554

No. A-217 2555

No. A-215 2557
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2503

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

* * *

(Jury not present.)

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

America versus Briana Waters, cause CR05-5828 FDB.

Counsel, please make an appearance for the record.

MR. FRIEDMAN: Good morning, Your Honor, Andrew

Friedman for the United States.

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

with Ms. Waters. Mr. Bloom, I believe, is practicing in front

of the mirror.

THE COURT: What I want to do is go through these

instructions with you.

How I want to do it is in this fashion. The ones I gave

you as to the Court's proposed instruction, go through them

one-by-one, to see if there's any issue with it. If there's

an issue or comment you want to make about the instructions,

that you succinctly make those and I will take them into

consideration.

Then from that process, I will issue a new set. And that

new set will be the instruction I am going to give to the

jury.

After we've gone through the set I gave you last night,

then I will ask you about your particular proposed

instructions as to what you think should be added to this.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2504

MR. FOX: Okay.

THE COURT: I will consider that as I go about the

new set.

MR. FOX: Okay.

THE COURT: All right. Now, with the set I gave you

last night, dealing with Instruction No. 1, Mr. Friedman, any

issue with that instruction?

MR. FRIEDMAN: No, Your Honor.

THE COURT: Mr. Fox?

MR. FOX: No, Your Honor.

THE COURT: No. 2 talks about the indictment is not

evidence. Any issue with that?

MR. FRIEDMAN: Not from the government, Your Honor.

MR. FOX: No, Your Honor.

THE COURT: No. 3 deals with proof beyond a

reasonable doubt and tells the jury what that is. Any issue

with that?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No, Your Honor.

THE COURT: No. 4 tells the jury what evidence is in

deciding what the facts are, any issue with that one?

MR. FRIEDMAN: Not from the government.

MR. FOX: No, Your Honor.

THE COURT: No. 4(b) talks about character evidence

and how to consider that. Any issue with that one?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2505

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No, Your Honor.

THE COURT: No. 5 says the defendant has testified

and how to treat that. Any issue with that one?

MR. FRIEDMAN: Not from the government.

MR. FOX: We do Your Honor. I know this is a pattern

instruction from the Ninth Circuit, but I think there's no

reason to highlight her testimony. It's particularly picking

out her testimony and telling the jury she's testified. They

know she's testified. I don't see any need for this

instruction.

THE COURT: You are recommending it be deleted?

MR. FOX: Yes. I don't have strong objections. I

don't see the need for it.

THE COURT: That is your comment .

MR. FOX: Yes.

THE COURT: All right.

MR. FRIEDMAN: From the government we would ask that

it be included, remain in.

THE COURT: No. 6 talks about certain things are not

evidence. Any issue with that one Mr. Friedman?

MR. FRIEDMAN: The only thing is the second sentence

of paragraph 3. I don't believe any evidence came in for a

limited purpose, so I think in this case, it might make sense

to delete that sentence.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2506

THE COURT: Mr. Fox.

MR. FOX: I don't have an objection to Mr. Friedman's

suggestion.

THE COURT: All right.

MR. FOX: Although I guess in the interest of

caution, it can't hurt. If at some place in the course of the

trial you do that, maybe we should keep it in.

THE COURT: I don't know, let me look at that. I

understand what you are saying.

No. 7?

MR. FRIEDMAN: No objections.

THE COURT: Types of evidence, circumstantial or

direct. Any issue with that instruction?

MR. FRIEDMAN: Not from the government.

MR. FOX: No, Your Honor.

THE COURT: All right, No. 8, talking about

credibility of witnesses, any issue with that?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No problem Your Honor.

THE COURT: All right. No. 9 is talking about expert

testimony. Any issue with that one?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No.

THE COURT: No. 10 is telling the jury that they are

only to determine guilt or innocence as to the charges in the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2507

indictment. Any issue with that one? Mr. Friedman.

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No, Your Honor.

THE COURT: No. 11 talks about a separate crime being

charged in each count and how they are to consider those

counts. Any issue with that one?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No.

THE COURT: No. 12 deals with possession. Any issue

with that?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: No.

THE COURT: No. 13 deals with the plea agreements,

that evidence and how they are to view that testimony coming

from folks that have pleaded guilty to crimes. Any issue with

that one?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: I do, Your Honor, have a problem with this

instruction. It deals with what's in my proposed instructions

on this subject. This instruction doesn't have any language

about that these people are alleged accomplices and you should

view their testimony with caution.

THE COURT: Does it not say that in the last sentence

there?

MR. FOX: Right, but the pattern instruction, 4.9 in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2508

the Ninth Circuit, has other categories, which I have proposed

that these people not just have taken plea agreements, but

that they are alleged accomplices. So it's not just that they

pled guilty and in exchange for a lesser sentence they are

testifying; and you should view their testimony with caution.

But they're alleged accomplices, and alleged accomplices

should have a cautionary instruction attached to it.

Similarly, they both have felony convictions. The fact

that they have felony convictions in and of itself is an

additional reason why their testimony should be evaluated

differently, so my proposals, and I think these were my

supplemental instructions two days ago, has the additional

language in the pattern instruction. The Court just focused

on the fact they had plea bargains.

THE COURT: Are you referring to a pattern

instruction?

MR. FOX: Yes, 4.9.

THE COURT: Okay.

MR. FOX: There's sections both that they pled guilty

to the crime arising out of the same event, but also the

person was alleged to be an accomplice to the crime charged

and also they received favored treatment from the government.

So my proposals improve on what you already have.

THE COURT: What is your number?

MR. FOX: The supplemental instructions I filed two
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2509

days ago.

THE COURT: Is there a number on it?

MR. FOX: I think they are proposed instructions 22

and 24. These were in the supplemental packet.

THE COURT: They have the No. 22 and 24 on them?

MR. FOX: Yes.

THE COURT: Mr. Friedman, any comment.

MR. FRIEDMAN: Yes, I think the instruction as given

here is correct and how it should be. It fully describes

everything that's happened in this case. The pattern

instruction has all kinds of different alternatives but what

Mr. Fox is really asking for is sentence after sentence of bad

information about these people. The fact that they pled

guilty to charges arising out of the same events, that covers

the fact that they have a felony conviction and that they are

accomplices, so this fully describes what happens and I think

it's appropriate.

THE COURT: Does it not say on line 5 they pleaded

guilty to crimes arising out of the same events for which the

defendant is on trial?

MR. FOX: But the pattern has words specifically

about accomplice.

THE COURT: You want the word accomplice?

MR. FOX: Yes, following 4.9.

MR. FRIEDMAN: I would say that would apply to an
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2510

accomplice who has not pleaded guilty, it would be appropriate

in that case, not in this case where they have pleaded guilty

to exactly the same thing.

MR. FOX: I would ask that the Court give the one I

proposed.

THE COURT: I understand that. That's why you are

saying it should be changed and that's why you are saying it

should cover all these other folks that pled guilty and doing

the same thing.

MR. FRIEDMAN: I am saying it covered everything and

it's as good as it is.

THE COURT: That is what you are saying.

Now 14 talks about charts and summaries have been received

into evidence. Any issue with that?

MR. FRIEDMAN: I think none were admitted in

evidence. I think they were actually only demonstrative so I

think we should give pattern 4.18 instead of this one, which I

believe is 4.19.

MR. FOX: I agree with Mr. Friedman, I don't believe

that the charts are going back to the jury. I think they were

offered for illustrative purposes only.

THE COURT: All right, rather than receive -- short

of being admitted into evidence, is what you are saying?

MR. FRIEDMAN: Correct.

THE COURT: Okay.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2511

MR. FOX: Right, 4.18.

THE COURT: You are both in agreement on that one, it

sounds.

MR. FOX: Yes. "That have been shown to you" is the

wording.

THE COURT: Right.

All right, No. 15 talks about "on or about" definition,

what that means. Any issue with that?

MR. FRIEDMAN: No, Your Honor.

THE COURT: Mr. Fox.

MR. FOX: No, Your Honor.

THE COURT: No. 16 is dealing with Count 1, which is

the conspiracy count. Any issue with that one?

MR. FRIEDMAN: Not from the government.

MR. FOX: Well, Your Honor, I guess with all of the

to-convict instructions, the problem I have, including with

this one, is that we haven't read the indictment to the jury.

The government had a proposed instruction, their Instruction

No. 1, which you did not include in the packet, which sets out

what the charges are with some specificity.

The problem with Instruction No. 16, without the

indictment and without the Government's proposed No. 1, is

that it doesn't tell the jury what some of the facts are that

are alleged to have occurred.

So I guess generally I think we need to give more
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2512

information to the jury about what the specific charges are in

this particular case.

Does that make some sense?

THE COURT: It's not making a whole lot in light of

the fact that each count is set forth.

MR. FOX: If you look at Government's proposed

Instruction No. 1, they have set out in some detail, what each

of the counts involve. I would ask that their Instruction

No. 1 be given so it explains a little more to the jury as to

what actually was alleged in the indictment.

Right now the jury doesn't really have much sense of what

was in the indictment.

The other problem is that we believe that Instruction No.

16, the conspiracy instruction, needs to name the people who

were named in the indictment as the alleged coconspirators.

It needs to set out what the objects of the alleged conspiracy

were, and then finally, the jurors need to be instructed that

they need to be unanimous about who the conspirators were and

what the objects of the conspiracy were.

I propose instructions that set that out.

THE COURT: I read it, yes.

MR. FOX: I think this is the problem with this

instruction, it doesn't specifically tell the jurors they have

to be unanimous as to what the object of the conspiracy was.

THE COURT: You are saying your instruction should be
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2513

the instruction here, is what you are saying.

MR. FOX: I propose some specific instructions on

conspiracy, which I believe should be given, and my problem

with this instruction, is that it doesn't go far enough in

telling the jurors they have to be unanimous both as to --

THE COURT: You would agree it's a pattern

instruction.

MR. FOX: I am sorry.

THE COURT: You would agree it's a pattern

instruction.

MR. FOX: It is. There are other pattern

instructions that -- there are other instructions that the

Court can give about unanimity and I think the case law says

in complicated cases, the Court can do that and I am asking

the Court to do that.

THE COURT: All right. Mr. Friedman.

MR. FRIEDMAN: We are preparing and will have a

pattern verdict form that would require the jury to be

unanimous on the object of the conspiracy, which crime. So I

think that takes care of that. Beyond that I think this is an

appropriate pattern instruction.

THE COURT: You wouldn't suggest, Mr. Fox, that the

jury by now would know what this case is about?

MR. FOX: I guess, Your Honor, I am not sure, because

the government introduced a lot of evidence as to other
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2514

arsons, and they have never offered any evidence as to who

committed those arsons. There are communiques that were

issued, but some of the early cases that Agent Comery

testified to, they have heard no testimony as to who committed

those.

Boise Cascade, there were these arsons that took place,

and the jurors have never been told who committed them.

Ms. Phillabaum and Kolar talked about a few of them.

I think there is -- this is a conspiracy charge and I

think we need to narrow in what the conspiracy is and what the

objects were so the jurors aren't left speculating about that

or disagree among themselves.

THE COURT: I understand your position. Anything

else to be said?

MR. FRIEDMAN: The only thing I would say we don't

have an objection if the Court wants to give our proposed No.

1. I don't think it's necessary, but we don't object.

THE COURT: Government's No. 1.

All right, No. 17, it's also dealing with to decide

whether there's a conspiracy is going into what they are to

do.

MR. FRIEDMAN: No objection from the government.

MR. FOX: Two problems, again, without the jurors

knowing exactly what the conspiracy charge in the indictment

is, this doesn't make a whole lot of sense. It goes to our
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2515

previous motion, which I know the Court has ruled on, that

there are multiple conspiracies in this case.

THE COURT: Right.

MR. FOX: So I believe that this instruction needs to

be more specific in that regard.

I also would ask that the Court include our proposed

language in this instruction from our Instruction No. 11. "If

you find a conspiracy beyond a reasonable doubt, or if you

find beyond a reasonable doubt the defendant was not a member

of the charged conspiracy." I have included the "beyond the

reasonable doubt" in our proposed language that is not in

here, so it's just repeating the reasonable doubt.

THE COURT: All right. Anything else to be added to

this?

MR. FRIEDMAN: I think this is an appropriate pattern

instruction and we don't want the burden of proof in every

instruction.

THE COURT: Of course, Mr. Fox, you understand we are

going through and you know this anyway, that the instructions

will be read as a whole, not as pick out one and say this is

the one that controls.

Okay, No. 18 talks about a timeframe, if you will, as to

conspiracy. It also tells about how to find if the defendant

was involved in the conspiracy, and it's got some elements

they have to satisfy.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2516

Any issue with that one?

MR. FRIEDMAN: No, Your Honor.

MR. FOX: Your Honor, I would object to the last

paragraph of the instruction -- I don't think we -- the

paragraph that says "It is no defense that a person's

participation in a conspiracy was minor or for a short period

of time." I don't think we -- we haven't raised that as a

defense, so I don't think we should be telling the jurors it's

not a defense when that hasn't been a defense we've offered.

THE COURT: Okay. Is it fair to say this, that

language appears in the pattern instruction?

MR. FOX: I believe so.

THE COURT: Anything to add, Mr. Friedman? Do you

want to add anything to that?

MR. FRIEDMAN: No. It does appear in the pattern

instruction and I think it is appropriate.

THE COURT: No. 19, deals with the elements of Count

4. That's the unregistered destructive device. Any issue

with that?

MR. FRIEDMAN: I think the Court made this correction

on another instruction and I think it makes sense. I think if

we insert the word incendiary bomb if parentheses each time

destructive device is used, so in the second line --

THE COURT: Unregistered destructive device and then

insert incendiary bomb.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2517

MR. FRIEDMAN: -- in parentheses and then did the

same in the seventh line, I think that would remove possible

issues on appeal. Right at the end of the seventh line, so

right at the end of the first element.

THE COURT: I see, that's where you are saying it

should be.

All right, Mr. Fox, any comment?

MR. FOX: I agree with Mr. Friedman's suggestion and

then I have some other comments. We've proposed Instruction

No. 12 that is more specific. We believe that this

instruction should state who was allegedly aided and abetted.

So it should name the other person so there's no confusion as

to who the alleged principal is.

Secondly, this instruction doesn't include the certain

elements we believe are essential.

I filed a memorandum prior to trial, saying that when you

allege -- when someone is alleged to be an aider and abettor,

they have to have specific intent and they have to -- while

the principal may not have to know of the registration

requirements, when you are accused of aiding and abetting

someone, to possess something, the defendant is the aider and

abetter has to have specific intent with regard to the

registration requirements, otherwise if you pick up a friend

and they are driving with their gun on a hunting trip and it

hasn't been registered, you could be guilty.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2518

So you have to have specific intent.

And I have cited a case, a Ninth Circuit case in my memo,

the Sayetsitty case, 107 F.3d 1405, 1997, that talks about how

aiding and abetting has an additional element of specific

intent.

So we think the government needs to prove that Ms. Waters

knew of the registration requirements for an incendiary bomb,

and knowing of these requirements, intentionally assisted the

other people to possess it, without registering it, so she has

to know the registration requirements to be an aider and

abettor.

And then finally, the principals have to know the

characteristics of the bomb that require it to be registered.

So the principal don't have to know the registration

requirement but they have to have some knowledge of the

characteristics of this thing to cause it to be registered.

So our proposed instruction 12 sets that out.

THE COURT: All right. You are saying instead of

this instruction, that's what should be given.

MR. FOX: Right.

THE COURT: Now, I am going to refer you to -- and

we'll get to that a little later, but I believe instruction 23

addresses aiding and abetting, and that language seems to

appear at the bottom, the elements set forth.

MR. FOX: Your Honor, I don't believe this has the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2519

element of specific intent. So a person has to know what the

aider and abettor under this instruction has to know,

knowingly and intentionally aided, counseled, commanded,

induced, or procured that person to do the crime.

This doesn't have the specific intent element requirement

that Ms. Waters knew of the registration requirements.

THE COURT: I am not so sure that's an element that

you touched on there, but anyway, I have it noted and I will

look at it.

MR. FOX: I did file -- it's in my trial memo.

THE COURT: Okay. Let's move then to 20.

MR. FRIEDMAN: For the record, we think this is an

appropriate pattern instruction and should not be changed, 19,

with the exception of the one correction.

THE COURT: You both agree on the incendiary bomb

insertion.

No. 20 deals with knowingly. Any issue with that one?

MR. FOX: Your Honor, the second sentence, "The

government is not required to prove that the defendant knew

that his or her acts or omissions were unlawful." It should

be "her acts." That's not the case for aiding and abetting.

When you are alleged to be an aider and abettor, the

government is required to prove she had specific intent of the

registration requirements, for instance, so we would except to

the giving of that second instruction.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2520

Additionally, I guess we can -- when we deal with this

one, we are dealing with my proposed instruction, there's no

definition of intent in this instruction, just of knowledge.

THE COURT: All right. Anything to add to that from

your standpoint, Mr. Friedman?

MR. FRIEDMAN: No, I think this is an appropriate

pattern instruction and should be given as proposed.

THE COURT: I think it is a pattern instruction and

really dealing with the definition of knowingly; do you agree

with that?

MR. FOX: Yes.

THE COURT: No. 21, that's the term destructive

device and what it means, I believe that's directly from the

statute. Any issue with that?

MR. FRIEDMAN: Not from the government.

MR. FOX: The government filed a brief yesterday

asking the Court to limit the definition of destructive device

to what's in the indictment. What's charged in the indictment

is incendiary bomb. That language "incendiary bomb" is going

to be in the to-convict instructions, so we believe everything

under (I) should be excluded. So we shouldn't be telling the

jurors anything about grenades, rocket, missile, or similar

devices. We've alleged incendiary bomb; that's what we should

instruct on.

THE COURT: But this is the statute which the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2521

defendant was charged.

MR. FOX: It is the statute, but not what's in the

indictment.

THE COURT: All right. Mr. Friedman, any comment as

so what Mr. Fox is saying, everything in this instruction

below bomb should be deleted?

MR. FRIEDMAN: I guess I would think it's probably

clearest and best for the jury just to have the entire

definition, so to go all the way down as it is here, to

basically give it in this form, because it tells the jury what

the definition is, as opposed to truncating it. They might

draw a different inference from seeing part of the definition,

as opposed to the full definition.

THE COURT: Mr. Fox, one other question. The one you

are mainly concerned about, device similar, is that not part

of the definition?

MR. FOX: It's part of the definition, but it hasn't

been alleged in the indictment. So we believe that by

instructing on VI, the Court will allow possibly the jurors to

convict Ms. Waters with something she hasn't been charged

with.

THE COURT: All right. No. 22 talks about

destructive device. Any issue with that?

MR. FRIEDMAN: Just a technical one. In the third

sentence, the sentence beginning "Any device", I think we
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2522

would want to add the words "Containing combustible material."

I think it was in an earlier draft and may have been dropped

out.

THE COURT: What language? Say that again.

MR. FRIEDMAN: "Any device containing combustible

material," because towards the end of the sentence there's a

reference to that combustible material.

THE COURT: I see what you are saying. Mr. Fox.

MR. FOX: Your Honor, we've argued about this

extensively. We have strong objections to the Court's

definition of destructive device. We've briefed that. We've

argued about it. This instruction, you know, we believe goes

way beyond what the statute allows, it goes beyond what

science allows, we think it's unconstitutionally vague.

I mean, under this definition, a match could be a

destructive device, and that's just not the law.

So, I don't know if the Court wants me to reargue

everything.

THE COURT: I don't want you to reargue, I just want

you to tell me why you think it shouldn't be given at all.

You are saying it's unconstitutionally vague.

MR. FOX: I have written extensive briefing on this.

THE COURT: And I have ruled on this.

MR. FOX: I am telling you my position.

THE COURT: That's why you take the position, the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2523

reason why this instruction shouldn't be given, for the

reasons you stated in your pleading?

MR. FOX: Right.

THE COURT: If it is given, this language that

Mr. Friedman just mentioned, any comment on that?

MR. FOX: I can't agree to anything in this

instruction, okay.

THE COURT: All right. No. 23 talks about possessing

an unregistered destructive device, or aiding and abetting in

that.

Any issue with that one?

MR. FRIEDMAN: No.

MR. FOX: I think I already indicated this

instruction does not require specific intent, that the person

alleged to be the aider and better knows of the registration

requirements. This would allow for conviction of someone who

picks up a friend with an unregistered shotgun without the

person knowing that.

THE COURT: Let me ask you exactly what you are

suggesting -- you are saying specific intent should be added

to this.

MR. FOX: Yes, I believe in my trial brief I have set

out that analysis.

THE COURT: All right. I believe some of this -- I

will have to look at some of this that I have ruled on. These
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2524

issues have been coming up from the beginning, and the Court

has ruled on it.

MR. FOX: The specific intent I don't think we've

ever talked about before.

THE COURT: Mr. Friedman, did I give you a chance to

speak to this?

MR. FRIEDMAN: You probably did. I think it's the

pattern instruction and it's appropriate. If we start

changing it I think we have a lot of problems.

THE COURT: You agree it is a pattern?

MR. FOX: You know, quite honestly Your Honor, I

don't have that knowledge right now.

THE COURT: I am not asking you to like it.

MR. FOX: I can't recall exactly the pattern

instruction.

THE COURT: Okay. 24 deals with Count 5, arson of a

building.

MR. FOX: May I go back to 23 for a second? I guess

also we would except to the giving of the last paragraph. I

think the government should prove who committed the crime and

who was the abettor and aider.

THE COURT: That's why you are saying they should

give specific intent as to specific person doing these things?

MR. FOX: Specific intent would apply to the alleged

abettor and aider, but the jury should be unanimous as to who
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2525

the principal is, and they should be told who the alleged

principals are and they need to be unanimous to that, so we

would except to that last paragraph. Otherwise, six of the

jurors may think it was Capitol Hill Girl that was the

principal and six of jurors may think it was Lacey Phillabaum.

But they should be told who the alleged principals are, they

need to agree on it unanimously, so the government should have

to prove that.

THE COURT: So you disagree with the paragraph,

because you are saying they should prove precisely who was

aiding and abetting?

MR. FOX: And who the principals are and they should

be unanimous who that was under the Sixth Amendment.

THE COURT: All right. I haven't seen the form of

the verdict so I will see if that cleared up this very thing

you are talking about.

MR. FRIEDMAN: Just so the Court knows, it doesn't,

but the law doesn't require us to prove that and the pattern

instructions specifically say we don't have to.

THE COURT: I understand that.

No. 24, Count 5. That's the arson of the building used in

interstate commerce and the elements set forth there as to the

proof.

Any disagreement with that?

MR. FRIEDMAN: No.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2526

THE COURT: Mr. Fox, any disagreement with that?

MR. FOX: A few things, Your Honor, just for the

record, I would repeat our commerce clause argument, that this

is not a building that was used in interstate commerce, it

wasn't the principal focus, the Court has ruled on that, I am

repeating my objection.

The problem -- there's another problem, that this

instruction doesn't refer to which building and which date.

Again, given all of the debates in -- there's been no evidence

as to who burned down the Animal Control Unit in Olympia on

June 20, 1998, that the government introduced evidence of

that.

I don't want the jurors to have any confusion that we are

talking about the Center for Urban Horticulture.

THE COURT: Isn't that what Count 5 is alleging?

MR. FOX: If the Court gives the Government's

proposed instruction, then that cures the problem, but as the

instructions are set out right now, the jurors aren't given

any dates or times for specific buildings.

So I think this instruction should make it very clear what

the date is and what the building is.

The other issues with regards to this instruction, we

believe that the defendant intended the building would be

destroyed, not just damaged, but destroyed; And I think we

raised that in some of our briefing.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2527

Then also, we believe there are additional instructions

that the Court should give that we can address in a second as

to the jurors determining whether this is truly a building

engaged in interstate commerce and what that means. That

should be a jury question with specific instructions.

THE COURT: All right.

MR. FRIEDMAN: As I look at this, I think I actually

agree with Mr. Fox. If we gave instruction 1, it would make

it clearer exactly which and avoid changing other

instructions. So I think if we gave Government's instruction

1 that would be helpful in resolving a lot of these issues.

Otherwise I think it's an appropriate pattern instruction and

correctly states the law and should stay as it is.

THE COURT: All right. No. 25, Count 6 and that's

using a destructive device, the incendiary bomb. And the

elements the jurors must find. Any issue?

MR. FRIEDMAN: Two things: In the second element, we

would ask the Court add "and intentionally" after the word

"knowingly." This is in response to one of the briefs they

filed and I think the statute does require that it be "and

intentionally."

THE COURT: Do you agree with that Mr. Fox?

MR. FOX: Yes.

MR. FRIEDMAN: Then after destructive device in the

same element, I think we should add incendiary bomb in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2528

parenthesis, in the very next line, the second element.

MR. FOX: And also in the third element.

MR. FRIEDMAN: It's unnecessary there.

THE COURT: Would that also apply after the

destructive device on line 15?

MR. FRIEDMAN: I think it's not necessary because it

refers back, but I don't have an objection.

THE COURT: Do you think that about covers that in

terms of intentionally and incendiary bomb, Mr. Fox; you are

satisfied with those?

MR. FOX: We are satisfied with those additions but

we do have other problems with it.

THE COURT: Anything else you want to say?

MR. FOX: For the record we object to this

instruction being applied to Count 7; that was the count that

was added in the fourth superseding indictment, the count

involving an institution receiving federal financial

assistance. We had previously filed and the Court had denied

our statute of limitations objection to that count. I just,

for the record, am renewing my objection to that count.

THE COURT: Okay.

MR. FOX: There are also proposed instructions that

are in our packet that go further to defining what a crime of

violence is and defining what a person is. We can address

those when we get to our proposed packet, if you wish.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2529

THE COURT: Yes, let's do it that way. No. 26 deals

with count 7, the indictment charged with committing the

arson, that's the University of Washington, and sets forth the

elements. Any issues with that?

MR. FRIEDMAN: Not from the government Your Honor.

MR. FOX: Two things, Your Honor. First, again, no

date or name of building are in this instruction. If we give

the Government's proposed 1, that would take care of that

problem.

There is still lingering, and I realized this last night,

prior to trial, we had moved to dismiss Count 8 of the fourth

superseding indictment alleging that the statute here was

unconstitutional because the statute doesn't have any amount

in it for how much financial assistance an institution has to

receive for there to be federal jurisdiction. The Court

reserved ruling on that saying it needed to see the evidence,

and I believe there was an order to that effect issued, which

is docket 233, order denying as premature Waters' motion to

dismiss Count 7 of the fourth superseding indictment.

We believe evidence has come out there's certainly

evidence that there's a lot of federal financial assistance

going to the University of Washington. We believe that this

statute is unconstitutional for the reasons I set out in my

brief; it violates the 10th amendment, it infringes --

entrenches on state authority. The statute doesn't have any
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2530

numbers in it. It's just unconstitutional. I raised it and

the Court reserved ruling, and I am renewing my objection now.

And I think the Court needs to rule to tie up that issue that

I raised at Court's docket 233, that the Court reserved ruling

on.

THE COURT: Mr. Friedman, any comment?

MR. FRIEDMAN: I think the statute is constitutional.

No other comments.

THE COURT: I don't think I am prepared to say the

statute is unconstitutional. I heard testimony and everybody

heard testimony how funds come in. I think that is sufficient

enough for the Ninth Circuit to go to work on the issue.

MR. FOX: Okay.

THE COURT: From that standpoint, anything else other

than the constitutional aspect of this?

MR. FOX: Other than what I have said on a prior

arson count.

THE COURT: About the date?

MR. FOX: And also the intent that the whole building

should be destroyed and not just damaged.

MR. FRIEDMAN: The statute covers damage or destroyed

and we charged it that way. So that's the appropriate

version.

THE COURT: No. 27 talks about Exhibits 781 and 785,

about whether or not there's a record showing registration as
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2531

to this device, and it tells them how to view those

certificates. Any issue with that one?

MR. FRIEDMAN: Just a wording thing. It says no

record of any device being registered to any of the defendants

and the other names. I think it would be better if we put

Briana Waters' name in there just to be clear -- "and no

destructive device being registered to Briana Waters" and the

other folks on the list.

THE COURT: Mr. Fox do you agree with that?

MR. FOX: We would object to that -- basically this

instruction being given, at least the second sentence being

given at all. I don't think the Court needs to repeat what

the evidence says, the certificates speak for themselves. The

Court shouldn't then be telling the jury that the certificates

state that a custodian made a diligent search of the record

and found no record. Why should the Court be telling the

jurors what the evidence is? They have the evidence.

I agree though, that jurors should be instructed that from

the certificates, they may, but need not, decide as to whether

or not someone actually had a registration. But I don't think

the Court should be repeating what the evidence is.

THE COURT: If this instruction is given, you think

Briana Waters' name should be shown on there, that she did not

have --

MR. FOX: Yes.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2532

THE COURT: Okay. Anything else to add to this?

This is, as far as you know, a pattern?

MR. FOX: I actually --

THE COURT: You didn't look at any of the patterns?

MR. FOX: I don't know whether this is a pattern.

MR. FRIEDMAN: It is, and the language at issue is

part of the pattern language.

MR. FOX: I don't know whether it is a pattern.

THE COURT: Well, if you don't know, you don't know.

I thought you guys compared the patterns.

MR. FOX: I did at some point.

THE COURT: Or you just pick your own and send it in.

You do your own.

MR. FOX: That's true also.

THE COURT: No. 28 tells them about they are the ones

to render the verdict and that sort of thing. Any issue with

that.

MR. FRIEDMAN: No.

MR. FOX: It's kind of the standard.

THE COURT: The punishment provided is for the Court

to decide. Any issue with that?

MR. FRIEDMAN: No.

MR. FOX: I do believe the jurors should be

instruction they can't consider punishment insofar as it makes

them careful. I believe your proposal is a pattern
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2533

instruction, but I don't think that -- I think it violates due

process and the right to a jury trial. The jurors should know

the punishment to be considered, so that they are very, very

careful about how they evaluate the evidence.

THE COURT: Do I have to tell them to be careful?

You say I have to tell them something on one hand and on the

other hand don't tell them.

MR. FOX: My authority is Washington State pattern

instructions.

THE COURT: You are saying, you want me to add what

language?

MR. FOX: That the juror should consider the

punishment, insofar as it makes them careful in evaluating the

evidence.

MR. FRIEDMAN: We object to that of course, Your

Honor.

THE COURT: All right. No. 30 is talking about when

they are electing a presiding juror. Any issue with that?

MR. FRIEDMAN: No.

MR. FOX: No.

THE COURT: And communicating with the Court and that

sort of thing. Any issue with that?

MR. FRIEDMAN: No.

MR. FOX: No.

THE COURT: Then the form of the verdict, which we
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2534

will work that out. Any issue with that?

MR. FOX: Your Honor, could I just go back to

something that we dealt with at the very beginning and put

something on the record.

THE COURT: What is that.

MR. FOX: This is on Instruction No. 3. This is a

pattern instruction but I would like the record to reflect I

do have an objection to this, and I have an objection to the

second sentence in the first paragraph: "It is not required

that the government prove guilt beyond all possible doubt."

Secondly I would have an objection to the second clause of the

next sentence "and is not based purely on speculation." I

don't think the Court should be instructing on the due process

clause, instructing the jury kind of in a negative. You

should tell them the government has to prove a case beyond a

reasonable doubt. I don't know -- to say it's not required

that the government prove guilt beyond all possible doubt, I

think that counteracts the burden of proof.

THE COURT: What line are you reading from?

MR. FOX: Line 4, the second sentence of paragraph 1.

I object to, "it is not required that the government prove

guilt beyond all possible doubt."

I think that that language contradicts the Sixth Amendment

and the Fifth Amendment right to a jury trial and right to due

process.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2535

I think the government should prove guilt beyond all

possible doubt. So I don't think the Court should be telling

the jury the government doesn't have to do that.

THE COURT: Well, the burden of proof is reasonable

doubt.

MR. FOX: Right, but it's our position that possible

doubt is reasonable doubt. If jurors possibly have a doubt,

then that's reasonable doubt. Let's just tell them prove

beyond a reasonable doubt. We don't have to go forward and

tell them what reasonable doubt isn't.

THE COURT: Okay. Any comment on that?

MR. FRIEDMAN: We'll defend it on appeal, Your Honor.

THE COURT: All right.

All right, so those are the comments on the instructions.

Now, Mr. Friedman, any exception to any proposed instructions

by you that's not in here?

MR. FRIEDMAN: No. Thank you, Your Honor.

THE COURT: Mr. Fox. We talked about -- let's see,

let's start where there was --

MR. FOX: We have our proposed Instruction No. 3,

which is the instruction about "you have heard evidence that

Briana Waters has engaged in protests and other types of

freedom of speech." Basically what this proposed instruction

says, is that you can't convict her based upon the content of

protected speech activities.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2536

Given the issue of freedom of speech in this case, and

reading materials, and things off the Internet, the fact that

Ms. Waters was cross-examined about a protest at an office, we

think it is very important that the jurors be given a strong

direction from the Court that the First Amendment protects

freedom of speech.

They may not agree with what Ms. Waters has thought or

said or done in the past, in the realm of protected speech,

but they should not convict her because of those speech

activities.

THE COURT: You are saying your Instruction No. 3

should be given.

MR. FOX: Yes.

THE COURT: And for those reasons.

MR. FOX: Yes.

THE COURT: Any others -- you had mentioned about the

conspiracy instruction.

MR. FOX: Right. I am going through -- the next

ones, Your Honor that we believe should be given is defense

proposed Instruction No. 9.

THE COURT: All right.

MR. FOX: Which is a definition of intent. We gave a

definition of knowledge and we think the jurors should be

given a definition of intent. I actually couldn't find a

pattern instruction on this, which is why I referenced LeFave
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2537

and Scott on that issue.

I think we should tell the jurors what intent means and

not let them speculate.

We prepared instructions 10 and 11, are the instructions

that we believe make it very clear that the jurors need to be

unanimous under the Sixth Amendment as to the scope of the

conspiracy, the objects of the conspiracy, that the government

has proven the same conspiracy beyond a reasonable doubt.

Our proposed instructions make that crystal clear and I

have addressed some of that in my trial memo so I would refer

the Court to my trial memo for those two instructions.

Similarly, and I won't repeat my argument about my

objections to the to-convict instructions, but I would ask the

Court, instead of the ones you have proposed, to give our

proposed Instruction No. 12, with regards to the unregistered

firearm. We think it sets out the specific intent requirement

more fully than the way it comes out in the proposed

instructions.

THE COURT: Okay.

MR. FOX: The same thing with regard to instruction

14, for the reasons that I believe the Court's proposed

to-convict on Count 5 is insufficient, we would ask the Court

to give ours instead. I went into some of this in our trial

memo.

We would ask the Court on defense proposed instruction 15,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2538

to define when a building is used in an activity affecting

interstate commerce. We believe the jurors should be the

ultimate deciders whether a building's primary function is

commercial rather than just having a tacit connection to

commerce.

I raised a lot in the pretrial briefing, but I think it is

ultimately the jury has to decide that. The Court denied it

on legal grounds, but the jurors should be told what

interstate commerce means and when a building has a primary

connection to interstate commerce.

No. 16, our proposed instruction 16 on arson, we -- I am

sorry, destructive device, incendiary bomb in relation to a

crime of violence, we believe that you should give our

proposed instruction 16 for the reasons that I have explained

before and in the trial memo, but more particularly,

Instruction No. 17 should define crime of violence to the

jury, so that jurors know what a crime of violence is.

THE COURT: You are talking about 16 now?

MR. FOX: I moved on to 17. 16 I think I covered

when I excepted to the Court's instruction on that.

But in terms of 17, I think a crime of violence should be

defined to the jury. It is a definition from the statute.

The jurors should be told that a crime of violence has to have

an element against a person or property of another. That ties

into No. 18, our proposed Instruction No. 18, that person and
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2539

person of another -- and this comes right from the statute --

include individuals, corporations, companies; it does not

include sovereign entities.

I raised a lot of this in pretrial motions. On legal

grounds the Court denied those motions, but ultimately the

jurors should determine whether in fact this is truly a crime

of violence committed against a person and not a sovereign

entity. So I would ask the Court give these instructions so

the jury makes that decision.

THE COURT: All right.

MR. FOX: Our proposed instruction No. 19, I am not

going to repeat all the legal arguments we made about

destructive devices, but we believe our proposed No. 19 is the

true definition of a destructive device that should be given

to the jury. We've argued about this a lot, I am not going to

repeat those arguments right now, but No. 19 conforms to all

the legal arguments we made previously.

THE COURT: Okay.

MR. FOX: Again, instruction 20, that ties into our

statute of limitations argument that we raised earlier about

count 7 and instruction 20 should be given so the jurors don't

convict Ms. Waters of a theory of arson that was charged

beyond the statute of limitations.

With regard to No. 21, it is not enough that Briana Waters

was merely present at the scene of a crime of violence, that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2540

instruction I think I covered in my memo and I would refer the

Court to my motions and memoranda related to destructive

devices.

Similarly, my "to convict," 22, proposed instruction 22,

the to-convict on Count 7, I will repeat -- I will refer the

Court to my arguments I made about the Court's to convict

instruction on 7. This is more specific. It names the Center

for Urban Horticulture. It names the date.

THE COURT: Your 22 should be given, in terms of 22

in the Court's packet?

MR. FOX: Instead of 26. Then two days ago I

proposed supplemental instructions, unfortunately I named it

22 again. 22, 23, and 24, these are the proposed instructions

I filed two days ago, and we talked about this earlier. These

are instructions about the felony convictions of Jennifer

Kolar an Lacey Phillabaum. We think there should be a

separate instruction about their felony convictions, and how

this should be considered, in addition to the fact that they

pled guilty.

We think the No. 23 should be given.

THE COURT: Now, are you going to one you've already

commented on?

MR. FOX: Yes.

THE COURT: Which one is that?

MR. FOX: When we were talking about Instruction No.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2541

13, your Instruction No. 13, I said that I had proposed

separate instructions.

THE COURT: That's 22 and 24, you said?

MR. FOX: Yes, and then 23 is an instruction that we

proposed specifically about Robert Corrina, a witness who has

lied under oath on a prior occasion. We think there should

be -- this is a pattern Instruction 4.8 -- and we think there

should be a specific instruction about Mr. Corrina, the fact

that he lied under oath and that the jury should consider that

along with other evidence.

Then today, I proposed an instruction which I didn't

number, I think I passed it back about missing witnesses.

THE COURT: You are asking that that be given?

MR. FOX: A witness peculiarly available to the

prosecution to maintain its burden of proof which it did not

produce or explain why it cannot is presumed one to have

testified against the government.

There are a lot of people that are not testifying in this

trial, who have cooperation agreements with the government.

There's Stan Meyerhoff, Suzanne Savoie, Kevin Tubbs. These

are all people that have reached cooperation agreements with

the government. They are peculiarly available to the

government. I would note that my efforts to even talk to any

of these people, have been met with refusals by their

attorneys to even let their clients talk to me.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2542

The government has cooperation agreements with these

people, and the fact that they haven't called those witnesses,

the jurors need to be told that that means they are not going

to help the government. They can bring them in. I don't have

that ability. I don't have a cooperation agreement with them.

So they are peculiarly available to the government and

this is a traditional instruction of missing witnesses.

THE COURT: We are talking now because the attorneys

wouldn't let them talk to you, the defendant's attorneys?

MR. FOX: Susan Savoie's attorney, Stan Meyerhoff.

There's people I asked to talk to and they said no. There's

cooperation agreements with these people, and the fact that

the government has not called them, this should be considered

by the jury negatively against them.

THE COURT: I understand. I don't know what else to

say. You didn't have any that you thought should be given

that I haven't.

MR. FRIEDMAN: I disagree with each of the additional

ones the defense has asked. I don't think the Court wants to

hear the argument.

THE COURT: I don't want to take argument.

MR. FOX: May I ask the court what it wants to do in

terms of formal instructions, because I don't want to have to

repeat all the legal arguments I have just made.

THE COURT: What I am saying is this: What we have
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2543

taken up here today, now, and as you refer to in terms of your

pleadings and the issues we brought up, you don't need to do

that again. The record is complete and is sufficient for you

to take up what I do here based on that. So you don't have to

redo all that over again.

So don't feel like you have to do that.

MR. FOX: Okay.

THE COURT: If I don't give something, or give

something, you just make your exceptions and reasons on the

record and they will stand.

MR. FOX: I guess, does the Court want me at some

point, when the Court gives a final packet, to just make an

exception to what's given, what's not given, without going

into the legal arguments?

THE COURT: Correct, because you've already done that

and it will serve because I don't want you to do that all over

again.

The other thing I need to talk to you about is closing,

and I will go back and consider all the things you've said and

then I will generate the final copy.

MR. FOX: The record should reflect Mr. Bloom is now

present.

THE COURT: Okay.

So Mr. Friedman, I will start with you. Are you giving

the -- well, I guess Mr. Bloom came in late and Mr. Bartlett
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2544

is not here, so I assume those two are going to argue the

case.

MR. FRIEDMAN: Mr. Bartlett is going to do the main

closing at least.

THE COURT: And Mr. Bloom.

MR. BLOOM: Yes.

THE COURT: Can you speak for him?

MR. FRIEDMAN: I can. You mean in terms of how much

time we think?

THE COURT: Yes.

MR. FRIEDMAN: I think there's a fair amount to

address after a three week trial between the two closings. No

more than 2 1/2 hours, if the Court would allow that much

time.

THE COURT: You think it will take you two and a half

hours to cover this? Between two closings? You folks have

been living with this a long time. You can name Exhibits

going to a particular issue without even looking at anything.

So I am just trying to understand now. You think you need 2

1/2 hours.

MR. FRIEDMAN: To be safe. We will try to be faster,

Your Honor.

THE COURT: Okay. Mr. Bloom?

MR. BLOOM: Same.

THE COURT: All right. Anybody been practicing?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2545

MR. BLOOM: I am sorry.

THE COURT: Anybody been practicing?

MR. FOX: Well, I represented Mr. Bloom was in front

of the mirror.

THE COURT: He said you were back at the hotel in

front of the mirror.

MR. BLOOM: No, I don't keep mirrors where I live any

more, I am getting too old.

THE COURT: I will tell you what I think about it.

All right. Right now I am going to take a recess and go

through these and deal with these instructions and get those

ready.

THE CLERK: All rise.

THE COURT: Answer one thing for me, too, we are

talking rebuttal witnesses.

MR. FRIEDMAN: We'll have one, and I think it will be

less than 15 minutes.

THE COURT: Who is that?

MR. FRIEDMAN: FBI agent Chris Ford.

THE COURT: You've exchanged.

MR. FOX: We've talked.

MR. FRIEDMAN: We are resuming at 10:00.

THE COURT: Hopefully at 10:00, but it's going to

take me a while to deal with what I want to be done here. If

we don't go right at 10:00, it shouldn't be too far behind
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2546

that.

THE CLERK: All rise, Court is in recess.

(Brief recess.)

THE COURT: It is my understanding the government has

one rebuttal witness.

MR. BARTLETT: Yes, Your Honor.

THE COURT: Are we ready for that?

MR. FOX: Yes.

THE COURT: All right. Bring them in.

(Jury present.)

THE COURT: All right. You may be seated.

Good morning to you. I believe we have one.

MR. BARTLETT: Yes, the United States calls Chris

Ford to the stand.

THE COURT: Come forward, sir and be sworn.

CHRISTOPHER FORD, called as a witness, duly sworn.

MR. BARTLETT: May I inquire, Your Honor.

DIRECT EXAMINATION

BY MR. BARTLETT:

Q. Could you tell the members of the jury your first and last

name and spell your last name for the Court Reporter?

A. Sure. My name is Christopher Ford, FORD.

Q. Where do you work?

A. I work for the Federal Bureau of Investigation, Seattle

office?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2547

Q. What is your current assignment?

A. Domestic terrorism squad.

Q. Are you a Special Agent?

A. Yes.

Q. How long have you been with the FBI?

A. Just coming up on three years.

Q. Last night after court, did I ask you to do something?

A. Yes, you did.

Q. What was that?

A. You asked me to go down to Olympia, to Ralph's Thriftway

and drive a route that you designated, taking I-5 northbound

toward Seattle and taking an exit that would lead me to

Greenlake Bar and Grill.

Q. Did you do that?

A. I did.

Q. What time did you leave Ralph's?

A. We left Ralph's at 7:12 p.m.

Q. And after leaving Ralph's Thriftway at 7:12, how long did

it take you to get to the Greenlake Bar & Grill?

A. 68 minutes.

Q. How many miles was that?

A. 67 miles.

Q. During the time you were driving, did you ever drive over

65 miles an hour?

A. I set my cruise control on my car at 60 miles an hour.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2548

MR. FOX: I am sorry, 60?

A. 60, 6-0.

Q. In addition to the drive last night, did I also ask you to

try to obtain information as to when sunset was on Sunday, May

20 of 2001?

A. Yes, you did.

Q. Did you find that?

A. Yes.

Q. If you could take a look, I assume you didn't do it off

the top of your head?

A. No, and I have a printout here from the U.S. Naval

Observatory Astronomical Applications Department. You asked

me to look at the sun times for Sunday, May 20, 2001, and you

wanted me to determine sunrise -- excuse me, sunset, which was

at 8:47 p.m., and end civil twilight at 9:24 p.m.

Q. If you could take a look at Government's 1124 in front of

you, do you see that?

A. I do.

Q. Your Honor, I think we have a stipulation that these are

medical records from Ms. Waters, from January 21, 2002, at

Providence St. Peters hospital.

MR. FOX: No objection.

THE COURT: All right, admitted.

(Exhibit No. 1124 admitted.)

BY MR. BARTLETT:
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2549

Q. Looking at the top line of that document, do you see a

registration time for when Ms. Waters checked into those?

A. Yes, 6:32 a.m.

Q. And when was she discharged?

A. Looks like the bottom, 10:20 a.m.

MR. BARTLETT: No further questions.

CROSS-EXAMINATION

BY MR. FOX:

Q. Good morning, Agent Ford.

A. Good morning.

Q. I am Neil Fox. I think we met just briefly.

A. We did.

Q. You drove from Ralph's Thriftway in Olympia, to Greenlake

Bar & Grill?

A. Correct.

Q. I take it you went on I-5 the whole way, you went to I-5

and went up to Seattle?

A. Yes.

Q. You go past the Tacoma Dome?

A. Yes.

Q. You go down through downtown Seattle?

A. I did.

Q. Do you know what exit you got off at on I-5?

A. I don't know the exit number, but I believe it was for

Northeast 65th Street.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2550

Q. That would have been past the Ravenna exit?

A. That should have been the Ravenna exit.

Q. That's the Ravenna exit?

A. Yeah.

Q. I take it Mr. Bartlett didn't ask you to make a stop at

the University of Washington Center for Urban Horticulture?

A. No, he did not.

Q. Do you know where that building is, the Center for Urban

Horticulture?

A. I have an idea where it is at.

Q. If you were to drive to a dumpster near the Center for

Urban Horticulture how would you have gotten there?

A. To be honest, I wouldn't. I have no idea because I didn't

attempt to go that way.

Q. I take it you were not driving with a bunch of gasoline in

the back of your car?

A. I was not.

Q. And I take it that you -- if you had been stopped for

speeding, it wouldn't have bothered you, the speeding ticket

perhaps, but you didn't have any fear about being stopped?

A. I didn't have any fear of being stopped because I was told

to not exceed the speed limit.

Q. Sure, but for some reason you committed a traffic

infraction on the way, you would have said, oh, I am an FBI

agent?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2551

A. In theory, yes, but when I drove the route last night, I

had no issues and I kept my speedometer at 60 miles an hour

and I did my best to hold that speed.

Q. Sure. But my question is -- you weren't worried anything

bad would happen to you if you got stopped?

A. No.

Q. And you didn't have any electrical timing devices in the

back of your car, right?

A. I did not.

Q. Now, there are traffic cameras on I-5, are there not?

A. From what I hear, yes, when I see the traffic reports in

the morning.

Q. Sure, so if you wanted to get to Seattle to avoid traffic

cameras, how would you have gone?

A. I couldn't tell you, I have never thought of it that way.

Q. Is there an alternate route that's direct to Seattle

that's not on I-5?

A. There is. I took I-5 yesterday. That was the route I was

assigned to take, so that's the one -- but I can tell you

that's not the only way to get to Seattle.

Q. Can you give the jury some ideas of other possible routes?

A. I honestly can't because I live north of Seattle and I

don't ever travel down to Olympia.

Q. Are you aware of any traffic cameras on streets that are

not I-5?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2552

A. I am not.

Q. Now, is it fair to say -- what day was yesterday, for the

record?

A. Wednesday, February 27.

Q. Are you aware of what traffic patterns were like on I-5 on

May 21, 2001?

A. I am not. I can tell you what the traffic patterns were

last night.

Q. Sure, but we are talking May 21, 2001?

A. Sure.

Q. Were you aware -- when you go up I-5, you go past the

Tacoma Dome?

A. Correct.

Q. Were you testing out if there were any events at the

Tacoma Dome on May 20?

A. I was not.

Q. How about the Mariners, you go right by where the Mariners

play, when you go up through Seattle?

A. In the vicinity.

Q. Is it not correct that the Mariners were playing the

Yankees on May 20, 2001?

A. I wouldn't know, I didn't check.

Q. I think they won actually.

They were probably playing earlier in the day if they were

playing on a Sunday; isn't that correct?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2553

A. I don't know, the schedule fluctuates, I don't know if it

was an afternoon or evening game.

Q. Isn't it fair to say after the Mariners play a game,

there's quite often a lot of traffic on I-5?

A. One could guess that there would be. Once again, I

wouldn't know.

Q. Are you familiar with the 520 bridge?

A. I am.

Q. If you were going to go from downtown Seattle to the

Montlake area of Seattle, by University Village, would it be

fair to say you could go via 520?

A. Yes, that's one of many options.

Q. You would get off the highway, you'd have to cross the

Montlake Bridge?

A. I believe so.

Q. Isn't it fair to say that that area of Seattle has a

highly dense traffic, amount of traffic?

A. Depends on the time of day.

Q. Sure. Depends.

Now, May 20, 2001, was there not the University StreetFair

going on that weekend?

A. I don't know.

Q. I would like to show the witness what's been marked for

identification as A-216.

Take a look at that for a moment.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2554

Can you identify what that is?

A. This is from The Daily.

Q. What's The Daily?

A. I am assuming it's literature from the University of

Washington or at least a publication from the University of

Washington.

Q. Can you identify what that says?

A. This is "Performers Keep the Avenue StreetFair

Interesting."

Q. What's the date?

A. May 21, 2001.

Q. I would move the admission of A-216?

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-216 admitted.)

Q. Is it fair to say this documents the fact that there was a

University street fair the weekend of May 21, 2001 at the

University of Washington?

A. That's the way it looks.

Q. And have you ever been to that street fair?

A. I have not, no.

Q. What generally happens, in your understanding, at a street

fair?

A. To be honest I don't frequent street fairs. If there is a

street fair, it usually doesn't catch my interest, therefore I
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2555

don't go.

Q. Do you think for a street fair, they block off a street?

A. Some do, some don't. I don't know if this specific one

blocked off the street, unless it says in the article.

Q. Are you aware of what the traffic patterns were around the

University district around that date?

A. I am not.

Q. I will hand you what's been marked for identification as

A-217. Why don't you take a look at that document?

A. Sure.

Q. Can you identify that for the record?

A. Once again it's from The Daily, University of Washington.

It says "Weekend Festivities Mean 50th opens, for time being."

Q. What's the date of that?

A. May 20, 2001.

MR. FOX: I would move the admission.

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-217 admitted.)

BY MR. FOX:

Q. Can you read that in the record starting with "The annual

Ave. Street Fair"?

A. How far do you want me to read?

Q. Start with the first paragraph.

A. Sure. "The annual Ave. Street Fair, starting Saturday and
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2556

lasting all weekend, means more than a festive atmosphere,

sidewalk sales, entertainment and food.

"The weekend means the removal of four blocks of

roadblocks on Northeast 50th Street between 15th Avenue

Northeast and 11th Avenue Northeast.

"The City of Seattle hopes to open the street by 4 p.m.

Friday, and wants to leave it open until 4 a.m. Monday.

"The segment of Northeast 50th Street between 15th

Northeast and 11th Avenue Northeast is only part of a plan to

bury utilities and repave the road. The section will stay

closed until mid-June. Once that section of 50th is

completed, the contractor will move to the blocks of Northeast

50th Street between 15 Avenue Northeast and 17th Avenue

Northeast."

Q. Then just the next paragraph, please.

A. "The construction along Northeast 50th Street is not the

only roadwork in the area. Over the last month, the

Washington Department of Transportation has clogged northbound

Interstate 5 by limiting traffic to as little as one lane.

The two projects are independent, but have caused the closure

of the Northeast 50th Street on-ramp to northbound I-5."

Q. Thank you. Isn't it correct, that in fact there's

substantial construction on I-5 in the month of May, 2001?

A. I don't know. Going by the article, the article claims

there may have been. I don't know personally.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2557

Q. Let me have you look at what's been marked for

identification as A-215. Can you identify that for the

record?

A. This is from the Seattle Post-Intelligencer.

Q. What date is it?

A. May 3rd, 2001.

Q. What's the title of your article?

A. "Backups Expected as I-5 Lanes Close for Repaving."

MR. FOX: I would move the admission of A-215 .

MR. BARTLETT: No objection.

THE COURT: Admitted.

(Exhibit No. A-215 admitted.)

BY MR. FOX:

Q. Have you had an opportunity to review that.

A. Okay.

Q. Can you read -- why don't you tell the jury what the

article says, while I get this straight?

Agent Ford, this article talks about a couple weeks of

construction on I-5?

A. Correct.

Q. Starting May 3rd, correct?

A. Correct.

Q. And talking about how half, I believe -- the northbound

half of the Ravenna crossing southeast of Greenlake is going

to be closed off to get new pavement, right?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2558

A. Yes, that's how it reads.

Q. It's supposed to -- the right lanes will remain closed

through May 16?

A. Correct.

Q. And after that, it's expected the two left lanes will be

closed so the work can move there, right?

A. Yes.

Q. So on the weekend of May 20, 21 there was substantial

construction on I-5?

A. There appears to be quite a bit of construction.

Q. Construction in the University district?

A. Well, at least around the Ravenna exit.

Q. Sure, and the previous article talks about construction on

50th, right?

A. Correct.

Q. And there's a University StreetFair?

A. Yes.

Q. And so your driving times didn't take into account any of

that type of construction, did it?

A. No, they did not.

MR. FOX: I have no further questions.

MR. BARTLETT: Nothing further, Your Honor.

THE COURT: All right. You may step down. Any

other -- no more testimony?

MR. BARTLETT: No more testimony Your Honor.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2559

MR. FOX: We have nothing Your Honor.

THE COURT: Well, to give you the rest of the case, I

am going to have you take your lunch hour at this time and

maybe I can get you to eat a little bit earlier than you

normally eat and have you back here, say, at noon, and you

will get the rest of the case or start on the rest of the

case.

As always, as you go about your business, you are not to

discuss the case in any way until it is given to you for that

purpose. When you are back in the building, of course, return

to the jury room. Leave your books on your chair and I will

see you at 12:00.

(Jury not present.)

THE COURT: All right. You may be seated.

I will get to you, just as soon as possible, the final

instructions. I am having trouble seeing Mr. Fox, looking

past Pat's head. Those of course will be the ones the Court

is going to give and any exceptions and all that, your record

will stand, you don't need to go through that again other than

to say you except.

MR. FOX: Sure. I will just except to each one.

THE COURT: Other than that, we'll take the noon

recess.

You folks hang around and be somewhere close and I will

get those to you as soon as I can. Let Pat know your
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2560

whereabouts.

MR. BLOOM: When do you want us back?

MR. BARTLETT: Depending on how soon you want them.

If you want them hopefully by 11:30 you would have them.

MR. FOX: If we go off to eat something, be back by

11:30.

THE COURT: So she can give them to you, I want to

give them to you just as soon as they're ready. I don't see a

whole lot of change, we have discussed all that. And of

course considering the exceptions to the ones you are

recommending, so I don't think there's going to be much change

in what you are doing. I just want you to have them and I

like to read the instructions first so you can take those

instructions and make your argument, if you want, to use them

or refer to them in some way.

MR. FOX: Okay, 11:30.

MR. BLOOM: Two questions about the closing. Have

you decided about the length of the closing?

THE COURT: I think, Mr. Bartlett and Mr. Friedman

mentioned something, 2 1/2 hours.

MR. BARTLETT: Yes.

THE COURT: It seems to me, I don't know the need for

all of that, but I would say two hours would be a round

figure. That would in my mind give you ample time to conclude

this matter and conclude it today.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2561

Now, if I go beyond 4:30 to do this, I guess I will do

that. All I am asking you, not to exceed.

Sometimes folks like to talk until they run out of

whatever, breath, and all those kind of things. I am asking

you not to do that because you've been living with this case,

and I think you can get to the gist of it from what I

understand the primary issue should be, some discussion about

the definition of the device and the rest is Ms. Waters had

nothing to do with this and what would indicate that kind of

thing.

So it seems like those two issues are really the meat

issues you want to say about this case, this case is going to

turn on that, believability, credibility.

MR. BLOOM: Sure. I have one logistical question. I

assume you do not allow, if the jury wants read back, I assume

you don't allow that.

THE COURT: I won't give them read backs and I am not

going to give them a transcript. I am going to summarize it

the way I have said in the instruction and you will be getting

a final packet. And you should have those shortly.

MR. FOX: Two very brief things, the record should

reflect that I think it was at 8:45, one page from A-45 had

been admitted, we've marked it as A-45A. So the remaining

pages from that exhibit, I didn't offer them. The record

should reflect one page from A-45.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2562

THE COURT: Any issue with this?

MR. BARTLETT: No.

MR. FOX: The other is I am moving to dismiss all

counts against Ms. Waters based upon insufficiency of the

evidence.

THE COURT: I have already ruled on that.

MR. FOX: We did that at half-time; I am making it

again.

THE COURT: The record will reflect that.

MR. BARTLETT: I don't think we are going to exceed

two hours. This has been a long trial and an important case,

and I would ask the Court for some flexibility with regard to

length. I am not going to be repeating myself. I have tried

to organize it as succinctly as possible. But I also don't

want to be jammed on time. So I will try to make every

effort. We do have both closing argument and rebuttal.

Getting both of those within two hours is going to be tight.

THE COURT: I am looking at it this way. If we have

this jury back here at noon and we are all ready to go, they

should be instructed by 12:30. And I would say your argument

would start at 12:30. That takes you two hours, 1:30, 2:30.

And then 2:30, 3:30, 4:30 with Mr. Bloom, and that would get

us out of here around 4:30.

I will add 15 minutes to each of you so we are out of here

at least by 5:00.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2563

I don't want it to be disjointed. I want the jury to get

it. Now, understand -- it is my understanding from what

Mr. Friedman was saying, that would include your rebuttal.

MR. FRIEDMAN: It would, the total we are talking

about.

THE COURT: So that's why I say, give you 2 hours 15

minutes, at the outside.

I am not asking you to use it all up. I keep saying that.

Not to exceed. I think that's long enough. You have been

living with this case and you know your positions, you've been

pulling these Exhibits like you've got them on a rotary or

something. I don't see any more than that. But it's got to

come to an end and that's the way I am going to bring it to an

end, so I will give you equal time.

The 15 minutes I have added for you I am assuming will be

in the rebuttal area. We'll be in recess. If you don't leave

right now I will find out where the instructions are. If they

are not ready right now you can go get your sandwich and come

back.

MR. FOX: Thank you.

MR. BARTLETT: Thank you.

THE CLERK: All rise, Court is in recess.

(Luncheon recess.)

(Jury not present.)

THE COURT: All right, you may be seated.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2564

I understand there was one instruction the government

wanted to speak to.

MR. BARTLETT: Yes, Your Honor. With regard to

Instruction 13a which deals with Robert Corrina, it indicates

that Robert Corrina, a witness, has lied under oath on a prior

occasion. I believe that's a determination for the jury, Your

Honor.

Mr. Corrina testified that he did go to the Grand Jury and

did not indicate he had rented a car. He also testified that

he had not remembered renting that car until he actually saw

the records later.

The defense is perfectly capable of arguing that's a lie,

but I think whether or not Mr. Corrina's testimony is

believable is a matter for the jury. You are basically

directing the jury to not believe Mr. Corrina on this very

critical matter, and I think that's a matter for the jury's

determination.

He indicated that he did not remember the car at the Grand

Jury. It wasn't a lie. It was an honest mistake on his part.

That was his testimony.

MR. FOX: Your Honor, I believe that he testified

that he lied to the Grand Jury. He tried to rationalize it,

but he didn't tell them the truth.

THE COURT: I guess the issue becomes, is this a

proper way to phrase it. Did he say one thing before the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2565

Grand Jury and something else at another time. And you can

characterize it anyway you want to.

What I think the objection is, you are saying I am telling

this jury that he did in fact lie.

MR. BARTLETT: Right. That's for their

determination.

MR. FOX: Your Honor, I think the evidence is that he

did lie. I don't think there's much of a dispute about it.

Whether he intentionally lied, they can argue he didn't

intentionally lie.

THE COURT: Well, you can argue it either way about

what I said, too. I am talking about how the instruction

should read to the jury.

MR. BARTLETT: This is simply, exactly the type of

matter that a jury is called to determine. He says one thing,

they want to argue it different. It is a factual

determination for the jury.

MR. FOX: This is not state court where the Court is

prohibited from commenting on the evidence. You are entitled

to tell the jury --

THE COURT: I don't want to comment on the evidence.

I want you guys to argue that.

Let me take a brief recess here.

THE CLERK: All rise, Court is in recess.

(Brief recess.)
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2566

THE COURT: You may be seated.

What I have decided to do is strike that instruction, take

it out, because I feel, when I look at this, the other

instructions talk about credibility of witnesses and things

you should look at. I think it gives you a right to argue

from each side without it being considered a comment by the

Court.

I am taking it out. The evidence is there; you can argue

from what these folks heard.

Okay. The exceptions and all of the other matters, in

terms of what you offered, are not there. The record has been

made, and you can identify them for the record.

MR. FOX: Sure. For all the reasons I stated

previously, the defense would except to giving of Instruction

No. 3. Instruction No. 5.

THE COURT: You are speaking of your proposed?

MR. FOX: These are of the Court's instructions, Your

Honor. Of the Court's instructions, these are the

instructions I am excepting to: 3, 5.

THE COURT: Okay, 3, 5.

MR. FOX: On 13, Your Honor, I had told Ms. Minor,

and she related this back to the Court, I am asking that the

phrase "You have heard testimony from witnesses who are

alleged to have been accomplices," I would ask that that

clause be inserted on instruction 13. I understand that the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2567

Court has denied that.

THE COURT: Yes. You made the record. I am going to

leave that instruction the way it is.

MR. FOX: We would except to No. 16, No. 18, No. 19,

No. 20, No. 21, No. 22, No. 23, No. 24, No. 25, No. 26, No.

27, No. 29, for all the reasons I stated earlier.

With regard to the proposed instructions that we proposed

that the Court is not giving, I object and except to the

failure to give the complete Defendant's Proposed Instruction

No. 3. I understand the Court gave part of that instruction,

but for the record, I would except to the failure to give the

full one.

THE COURT: Your No. 3?

MR. FOX: Right.

The failure to give Defense Proposed Instruction No. 9.

The failure to give Defendant's Proposed Instruction No.

10.

The failure to give Defendant's Proposed Instruction No.

11.

The failure to give Defendant's Proposed Instruction No.

12.

Defendant's Proposed Instruction No. 14, we except to the

failure to give that.

The failure to give Defendant's Proposed Instruction No.

15.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2568

The failure to give Defendant's Proposed Instruction No.

16.

The failure to give Defendant's Proposed Instruction No.

17 and 18 and 19 and 20, 21 and 22.

We except to the failure of the Court to give those.

Of our supplemental instructions, the main one is the one

I filed today about the missing witness. It's not numbered.

It's the witness available to the prosecution who was not

produced, and we would except to the failure to give that.

We would except to the Court's failure to give our

Proposed Instruction No. 23 on Robert Corrina, the one you

just took out.

THE COURT: All right.

MR. FOX: The Court did incorporate some of our

suggestions on the other two instructions, proposed

instructions that I filed two days ago, 22 and 24, and the

Court incorporated some of those suggestions. I except to the

failure to give those as we proposed them.

THE COURT: All right. Are we ready to argue the

case?

MR. BARTLETT: We are, Your Honor.

THE COURT: All right. We will bring the jury in and

instruct them.

I am sure, because of the length of the argument, I will

take a break after the government has argued it, about ten,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2569

fifteen minutes, then go into yours.

MR. FOX: Your Honor, without meaning any disrespect,

I am going to step out for a second while you are instructing

the jury, if that's okay?

THE COURT: That is up to you and your client.

MR. FOX: Mr. Bloom will be here. I need to step out

for a moment.

THE COURT: Sure. I mean, that's fine with me.

(Jury present.)

THE COURT: All right. You may be seated.

Both sides have rested in this case, so members of the

jury, you have heard all of the evidence, so it is my duty to

instruct you on the law which applies to this case. A copy of

these instructions will be available in the jury room for you

to consult.

It is your duty to find the facts from all the evidence in

the case. To those facts you will apply the law as I give it

to you. You must follow the law as I give it to you whether

you agree with it or not. And you must not be influenced by

any personal likes or dislikes, opinions, prejudices, or

sympathy. That means that you must decide the case solely on

the evidence before you. You will recall that you took an

oath promising to do so at the beginning of the case.

In following my instructions, you must follow all of them

and not single out some and ignore others; they are all
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2570

equally important. You must not read into these instructions

or into anything the Court may have said or done any

suggestion as to what verdict you should return -- that is a

matter entirely up to you.

This is a criminal case brought by the United States

Government. The government accuses the defendant, Briana

Waters, of five crimes. The charges against the defendant are

contained in an indictment.

Count 1 of the indictment charges that the defendant

conspired to commit the crimes of arson, using destructive

devices during crimes of violence, and making unregistered

destructive devices.

Count 4 of the indictment charges that, on or about May

20, 2001, the defendant possessed, or aided and abetted the

possession of, an unregistered destructive device.

Count 5 of the indictment charges that, on or about May

21, 2001, the defendant committed, or aided and abetted, the

arson of the Center for Urban Horticulture at the University

of Washington, a building used in interstate commerce or in

activity affecting interstate commerce.

Count 6 of the indictment charges that, on or about May

21, 2001, the defendant used, or aided and abetted the use of,

a destructive device during the arson of the Center for Urban

Horticulture at the University of Washington.

Count 7 of the indictment charges that, on or about May
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2571

21, 2001, the defendant committed, or aided and abetted, the

arson of the Center for Urban Horticulture at the University

of Washington, a building owned or possessed by an institution

receiving federal financial assistance. This is the same

arson charged in Count 5. The difference is that Count 7

alleges a different basis for jurisdiction. Count 5 alleges

that the building was used in activity affecting interstate

commerce, and Count 7 alleges that the building belonged to an

institution receiving federal financial assistance.

The indictment is simply a description of the charges made

by the government against the defendant. The indictment is

not evidence. The defendant has pleaded not guilty to the

charges. The defendant is presumed to be innocent and does

not have to testify or present any evidence to prove

innocence. The government has the burden of proving every

element of the charges beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you

firmly convinced that the defendant is guilty. It is not

required that the government prove guilt beyond all possible

doubt.

A reasonable doubt is a doubt based upon reason and common

sense, and is not based purely on speculation. It may arise

from a careful and impartial consideration of all the

evidence, or from lack of evidence.

If after a careful and impartial consideration of all the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2572

evidence, you are not convinced beyond a reasonable doubt that

the defendant is guilty, it is your duty to find the defendant

not guilty. On the other hand, if after a careful and

impartial consideration of all the evidence, you are convinced

beyond a reasonable doubt that the defendant is guilty, it is

your duty to find the defendant guilty.

The evidence from which you are to decide what the facts

are consists of:

(1) the sworn testimony of witnesses;

(2) the exhibits which have been received into evidence;

and

(3) any facts to which all the lawyers have agreed or

stipulated.

You have heard evidence of the defendant's character for

non-violence. In deciding this case, you should consider that

evidence together with and in the same manner as all the other

evidence in the case.

The defendant has testified. You should treat this

testimony just as you would the testimony of any other

witness.

In reaching your verdict you may consider only the

testimony and exhibits received into evidence. Certain things

are not evidence and you may not consider them in deciding

what the facts are. I will list them for you:

1. Arguments and statements by lawyers are not evidence.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2573

The lawyers are not witnesses. What they have said in their

opening statements, closing argument and at other times is

intended to help you interpret the evidence, but it is not

evidence. If the facts as you remember them differ from the

way the lawyers have stated them, your memory of them

controls.

2. Questions and objections by lawyers are not evidence.

Attorneys have a duty to their clients to object when they

believe a question is improper under the rules of evidence.

You should not be influenced by the question, the objection or

by the Court's ruling on it.

3. Testimony that has been excluded or stricken, or that

you have been instructed to disregard, is not evidence and

must not be considered. In addition, some testimony or an

exhibit was received only for a limited purpose; where I have

given a limiting instruction, you must follow it.

4. Anything you have seen or heard when the Court was not

in session is not evidence. You are to decide the case solely

on the evidence received at the trial.

Evidence may be direct or circumstantial. Direct evidence

is direct proof of a fact, such as testimony of an eyewitness.

Circumstantial evidence is indirect; that is proof of a chain

of facts from which you could find that another fact exists,

even though it has not been proved directly. You are to

consider both kinds of evidence. The law permits you to give
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2574

equal weight to both, but it is for you to decide how much

weight to give to any evidence.

In deciding the facts in this case, you may have to decide

which testimony to believe and which testimony not to believe.

You may believe everything a witness says, or part of it, or

none of it.

In considering the testimony of any witness, you may take

into account:

1. the opportunity and ability of the witness to see or

hear or know the things testified to;

2. the witness's memory;

3. the witness's manner while testifying;

4. the witness's interest in the outcome of the case and

any bias or prejudice;

5. whether other evidence contradicted the witness's

testimony;

6. the reasonableness of the witness's testimony in light

of all the evidence; and

7. any other factors that bear on believability.

The weight of the evidence as to a fact does not

necessarily depend on the number of witnesses who testify.

You have heard testimony from persons who, because of

education or experience, are permitted to state opinions and

the reasons for their opinions.

Opinion testimony should be judged just like any other
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2575

testimony. You may accept it or reject it, and give it as

much weight as you think it deserves, considering the witness'

education and experience, the reasons given for the opinion,

and all the other evidence in the case.

You are here only to determine whether the defendant is

guilty or not guilty of the charges in the indictment. Your

determination must be made only from the evidence in the case.

The defendant is not on trial for any conduct or offense not

charged in the indictment. You should consider evidence about

the acts, statements, and intentions of others, or evidence

about other acts of the defendant, only as they relate to this

charge against this defendant.

You have heard evidence that Briana Waters has engaged in

protests and other types of freedom of speech. You are

instructed that the First Amendment of the United States

Constitution protects the right of Americans to speak out

publicly and to protest. You are instructed that you may not

convict Briana Waters of any crime simply because she

exercised her First Amendment rights.

A separate crime is charged against the defendant in each

count. You must decide each count separately. Your verdict

on one count should not control your verdict on any other

count.

A person has possession of something if the person knows

of its presence and has physical control of it, or knows of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2576

its presence and has the power and intention to control it.

More than one person can be in possession of something if each

knows of its presence and has the power and intention to

control it.

You have heard testimony from witnesses who were

accomplices and who entered into plea agreements under which

they hoped or hope to receive lighter sentences in return for

their cooperation, and who pleaded guilty to felony crimes

arising out of the same events for which the defendant is on

trial. An accomplice is one who voluntarily and intentionally

joins with another person in committing a crime. These guilty

pleas are not evidence against the defendant, and you may

consider them only in determining the witness' believability.

In evaluating these witnesses' testimony, you should

consider the extent to which or whether the witnesses'

testimony may have been influenced by any of these factors.

In addition, you should exam the witnesses' testimony with

greater caution than that of other witnesses.

Certain charts and summaries have been shown to you.

Charts and summaries are only as good as the underlying

supporting material. You should, therefore, give them only

such weight as you think the underlying material deserves.

The indictment charges that the offenses occurred "on or

about" a certain date or during a period of time. The proof

need not establish with certainty the exact date of the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2577

alleged offenses. It is sufficient if the evidence in the

case establishes beyond a reasonable doubt that an offense was

committed on a date reasonably near the date or time alleged.

The defendant is charged in Count 1 of the indictment with

the crime of conspiracy in violation of Section 371 of Title

18 of the United States Code. Specifically, the defendant is

charged with conspiring to commit arson, to use destructive

devices during a crime of violence, and to make unregistered

destructive devices. In order for the defendant to be found

guilty of this charge, the government must prove each of the

follow elements beyond a reasonable doubt:

First, at some time between 1996 and October 2001, there

was an agreement between two or more persons to commit at

least one crime as charged in the indictment;

Second, the defendant joined the conspiracy knowing of at

least one of its objects and intending to help accomplish it;

and

Third, at some time between May 11, 2001, and October

2001, one of the members of the conspiracy performed at least

one overt act for the purpose of carrying out the conspiracy,

with all of you agreeing on a particular overt act that you

find was committed.

I shall discuss with you briefly the law relating to each

of these elements.

A conspiracy is a kind of criminal partnership -- an
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2578

agreement of two or more persons to commit one or more crimes.

The crime of conspiracy is the agreement to do something

unlawful; it does not matter whether the crime agreed upon was

committed.

For a conspiracy to have existed, it is not necessary that

the conspirators made a formal agreement or that they agreed

on every detail of the conspiracy. It is not enough, however,

that they simply met, discussed matters of common interest,

acted in similar ways, or perhaps helped one another. You

must find that there was a plan to commit at least one of the

crimes alleged in the indictment as an object of the

conspiracy (that is, arson, using destructive devices during a

crime of violence, and making unregistered destructive

devices), with all of you agreeing as to the particular crime

which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully

participating in the unlawful plan with the intent to advance

or further some object or purpose of the conspiracy, even

though the person does not have full knowledge of all the

details of the conspiracy. Furthermore, one who willfully

joins an existing conspiracy is as responsible for it as the

originators. On the other hand, one who has no knowledge of a

conspiracy, but happens to act in a way which furthers some

object or purpose of the conspiracy, does not thereby become a

conspirator. Similarly, a person does not become a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2579

conspirator merely by associating with one or more persons who

are conspirators, nor merely by knowing that a conspiracy

exists.

An overt act does not itself have to be unlawful. A

lawful act may be an element of a conspiracy if it was done

for the purpose of carrying out the conspiracy. The

government is not required to prove that a defendant

personally did one of the overt acts.

You must decide whether the conspiracy charged in the

indictment existed, and, if it did, who at least some of its

members were. If you find the conspiracy charged did not

exist, then you must return a not guilty verdict, even though

you may find that some other conspiracy existed. Similarly,

if you find the defendant was not a member of the charged

conspiracy, then you must find the defendant not guilty, even

though the defendant may have been a member of some other

conspiracy.

A conspiracy may continue for a long period of time and

may include the performance of many transactions. It is not

necessary that all members of the conspiracy join it at the

same time, and one may become a member of a conspiracy without

full knowledge of all the details of the unlawful scheme or

the names, identities, or locations of all of the other

members.

Even though a defendant did not directly conspire with
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2580

other conspirators in the overall scheme, the defendant has,

in effect, agreed to participate in the conspiracy if it is

proved beyond a reasonable doubt that:

1. the defendant directly conspired with one or more

conspirators to carry out at least one of the objects of the

conspiracy,

2. the defendant knew or had reason to know that other

conspirators were involved with those with whom the defendant

directly conspired, and

3. the defendant had reason to believe that whatever

benefits the defendant might get from the conspiracy were

probably dependent upon the success of the entire venture.

It is no defense that a person's participation in a

conspiracy was minor or for a short period of time.

The defendant is charged in Count 4 of the indictment with

possessing an unregistered destructive device (incendiary

bomb), in violation of Section 5681(d) of Title 26 of the

United States Code. In order for the defendant to be found

guilty of this crime, the government must prove each of the

following elements beyond a reasonable doubt:

First, on or about May 20, 2001, the defendant knowingly

possessed, or aided and abetted another person's possession

of, a destructive device (incendiary bomb); and

Second, the destructive device (incendiary bomb) was not

registered to the defendant or the other person in the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2581

National Firearms Registration and Transfer Record;

An act is done knowingly if the defendant is aware of the

act and does not act through ignorance, mistake, or accident.

The government is not required to prove that the defendant

knew that his acts or omissions were unlawful. You may

consider evidence of the defendant's words, acts, or

omissions, along with all the other evidence, in deciding

whether the defendant acted knowingly.

The term "destructive device" means --

(A) any explosive, incendiary, or poison gas --

(i) bomb,

(ii) grenade,

(iii) rocket having a propellent charge of more than

four ounces,

(iv) missile having an explosive or incendiary

charge of more than one-quarter ounce,

(v) mine, or

(vi) device similar to any of the devices described

in the preceding clauses.

A destructive device includes any incendiary device, be it

a military-type weapon or homemade incendiary weapon, the

function of which is to ignite and destroy property. Although

it may cause an explosion, an incendiary device does not have

to cause an explosion in order to be considered an incendiary

bomb. Any device containing combustible material capable of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2582

producing sufficient heat to destroy property of any kind and

having components designed to ignite that combustible material

is an incendiary bomb. The term incendiary bomb does not

include any device which is not designed as a weapon for the

destruction of property.

The defendant may be found guilty of the crimes of

possessing an unregistered destructive device, arson, and

using a destructive device during a crime of violence even if

the defendant personally did not commit the act or acts

constituting the crime but aided and abetted in their

commission. To prove a defendant guilty of aiding and

abetting, the government must prove beyond a reasonable doubt:

First, that the crime charged was committed by another

person;

Second, the defendant knowingly and intentionally aided,

counseled, commanded, induced, or procured that person to

commit the crime; and

Third, the defendant acted before the crime was completed.

It is not enough that the defendant merely associated with

the person committing the crimes, or unknowingly or

unintentionally did things that were helpful to that person,

or was present at the scene of the crime.

The evidence must show beyond a reasonable doubt that the

defendant acted with the knowledge and intention of helping

that person commit the crime.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2583

The government is not required to prove precisely which

person actually committed the crime and which person aided and

abetted.

The defendant is charged in Count 5 of the indictment with

committing arson of a building used in interstate commerce, in

violation of Section 844(i) of Title 18 of the United States

Code. In order for the defendant to be found guilty of this

crime, the government must prove each of the following

elements beyond a reasonable doubt:

First, the defendant damaged or destroyed, or aided and

abetted in damaging or destroying, a building;

Second, the defendant or the person whom defendant aided

and abetted used fire to do so;

Third, the defendant acted maliciously; and

Fourth, the building was used in interstate commerce or in

activity affecting interstate commerce.

In order to find that a defendant acts maliciously, you

must find that the defendant intends that the building will be

damaged or destroyed.

The defendant is charged in Count 6 of the indictment with

using a destructive device (incendiary bomb) during and in

relation to a crime of violence, in violation of Section

924(c) of Title 18 of the United States Code. In order for

the defendant to be found guilty of that charge, the

government must prove each of the following elements beyond a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2584

reasonable doubt:

First, the defendant committed, or aided and abetted, the

crime of damaging or destroying by fire a building used in

interstate commerce as charged in Count 5 or a building

belonging to an institution receiving federal financial

assistance as charged in Count 7 of the indictment;

Second, the defendant knowingly and intentionally used, or

aided and abetted the use of, a destructive device (incendiary

bomb); and

Third, the defendant or the person whom defendant aided

and abetted used the destructive device during and in relation

to the crime of damaging or destroying a building by fire.

A person takes action "in relation to the crime" if the

destructive device facilitated or played a role in the crime.

The defendant is charged in Count 7 of the indictment with

committing arson of a building belonging to an institution

receiving federal financial assistance, in violation of

Section 844(f) of Title 18 of the United States Code. In

order for the defendant to be found guilty of this crime, the

government must prove each of the following elements beyond a

reasonable doubt:

First, the defendant damaged or destroyed, or aided and

abetted in damaging or destroying, a building;

Second, the defendant or the person whom defendant aided

and abetted used fire to do so;
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2585

Third, the defendant act maliciously; and

Fourth, the building was owned or possessed by an

institution receiving federal financial assistance.

In order to find that a defendant acts maliciously, you

must find that the defendant intends that the building will be

damaged or destroyed.

Exhibits 781 through 785 are certificates of the custodian

of the National Firearms Register and Transfer Record. A

certificate is a written statement of facts signed by a public

official. The certificates state that the custodian made a

diligent search of the record and found no record of any

destructive device being registered to any of the defendants,

Briana Waters, William Rodgers, Justin Solondz, Lacey

Phillabaum, or Jennifer Kolar. From these certificates you

may, but need not, decide that no destructive device was

registered to any of these persons.

Your verdict must be based solely on the evidence and on

the law as I have given it to you in these instructions.

However, nothing that I have said or done is intended to

suggest what your verdict should be -- that is entirely for

you to decide.

The punishment provided by law for these crimes is for the

Court to decide. You may not consider punishment in deciding

whether the government has proved its case against the

defendant beyond a reasonable doubt.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2586

When you begin your deliberations, you should elect one

member of the jury as your presiding juror. That person will

preside over the deliberations and speak for you here in

court.

You will then discuss the case with your fellow jurors to

reach agreement if you can do so. Your verdict, whether

guilty or not guilty, must be unanimous.

Each of you must decide the case for yourself, but you

should do so only after you have considered all the evidence,

discussed it fully with the other jurors, and listened to the

views of your fellow jurors.

Do not be afraid to change your opinion if the discussion

persuades you that you should. But do not come to a decision

simply because other jurors think it is right.

It is important that you attempt to reach a unanimous

verdict but, of course, only if each of you can do so after

having made your own conscientious decision. Do not change an

honest belief about the weight and effect of the evidence

simply to reach a verdict.

If it becomes necessary during your deliberations to

communicate with me, you may send a note through the bailiff,

signed by your presiding juror or by one or more members of

the jury. No member of the jury should ever attempt to

communicate with me except by a signed writing; and I will

communicate with any members of the jury on anything
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2587

concerning the case only in writing or orally here in open

court. If you do send out a question, the law requires that I

consult with the lawyers before answering it, which will

necessarily take some time. You should continue your

deliberations while waiting for the answer to any question.

Remember that you are not to tell anyone -- including me --

how the jury stands, numerically or otherwise, on the question

of the guilt of the defendant until after you have reached a

unanimous verdict or have been discharged.

A verdict form has been prepared for you. After you have

reached unanimous agreement on a verdict, your presiding juror

will fill in the form that has been given to you, sign and

date it, and advise the bailiff that you are ready to return

to the courtroom.

With that, and these instructions in the jury room, the

lawyers will now give you their closing summary to assist you

in your duties, and we'll start with the Government first,

then we will hear from the defense.

MR. BARTLETT: Trials, at time, can seem to be a very

strange process. You all came in here several weeks ago,

forced to answer a number of questions, some of them personal.

You had to speak before everybody. It seems, I'm sure, to

many of you that randomly people are chosen and let go, and

all of a sudden you are asked to make very important

decisions, but it's not the normal way that you gain facts.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2588

Normally, if you were trying to figure out what happened

somewhere, you would have interaction, you would be talking to

people. That's not what happens in this case. Instead, you

come in here, you don't get to ask questions. You are led in

and out at various times, sometimes you have no idea why.

At times, this process can distract you from what a trial

is. What a trial is, is very simple. It's a search for the

truth. That's what we are all here for, what happened. We

are here to decide that. We are not here to speculate about

what could have happened, what might have happened.

We are not here to wonder about things that aren't in the

record. What we are here to do is very simple: Consider the

testimony from that witness stand, look at the physical

exhibits that have been entered into evidence, and look at the

stipulations.

Those are the three pillars that you will use when you go

back to deliberate. That's not my opinion. Judge Burgess

just told you that. Using those three pillars and your common

sense, you will decide what happened.

I am going to make arguments over the next, probably what

will seem to be too long a period of time, that I know you

already know. I am going to try to tie pieces of evidence

together with testimony and make points that I know you've

already put in your own mind. It's not because I think I am a

really smart guy. It's because it's my job. That's what the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2589

Department of Justice pays me to do, and I am going to do it.

I just don't want you to feel like I am trying to insult you.

Why are we here? We are here because this Defendant chose

to join a conspiracy with her good friend Bill Rodgers, with

her boyfriend Justin Solondz, with Jennifer Kolar and Lacey

Phillabaum, and that conspiracy had a very, very serious aim:

to destroy the Center for Urban Horticulture at the University

of Washington. And they were successful.

We are here because this Defendant helped arrange to have

a secure media house at the Evergreen State College the week

before this arson. We are here because this Defendant

provided a clean room where incendiary bombs could be used to

destroy the Center for Urban Horticulture on May 21, 2001.

We are here because she obtained a rental car that was

used to transport the core conspirators up to Seattle that was

virtually untraceable. We lucked out. That's why we found

Mr. Corrina.

We are here because she chose to sit in the bushes in the

early morning hours of May 21st serving as a lookout for her

co-conspirators as they went down to plant their incendiary

bombs. We are here because she chose to help them all escape,

successfully, for many years.

Let's talk about the Government's case. I want to focus

first on Lacey Phillabaum. I want to suggest to you what is

obvious. When you go back to deliberate, I want you to think
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2590

back. It seems like a lot longer than two weeks ago, at least

it does to me, but two weeks ago Lacey Phillabaum came before

you and testified. If you find Lacey Phillabaum a credible

witness, and I suggest to you that there are a ton of reasons

why that is a compelling conclusion that you will all reach,

your job is done. If Lacey Phillabaum is telling the truth,

this Defendant is guilty.

Make no mistake about it, there are many criminal trials

where basically you have -- it's kind of a one-witness case,

that's all you have to rely on. Try to remember back, as you

watched her walk into this courtroom, to remember her

demeanor, how she testified, her attitude.

Ms. Phillabaum was compelling during direct testimony.

For almost an entire day, she was subjected to

cross-examination, and this cross-examination was aimed at

showing to all of you, all 14 of you, just exactly who Lacey

Phillabaum was. You know what? They were successful. You

got to see exactly who she was. It became abundantly clear

that Ms. Phillabaum provided you with very distinct

descriptions of memories she had and not on others.

She indicated during her testimony, during

cross-examination, that she had no ill will toward this

Defendant. In fact, she told you under cross-examination:

"Well, you wouldn't speak to me, would you, Ms. Phillabaum?"

What was her answer? "Actually, I would have. All I wanted
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2591

was for Briana Waters to be there when I met with you."

Think about that. You are Lacey Phillabaum. You are

framing the Defendant, and your response is: "Well, I will

meet with her, but I want to be face-to-face with the woman I

am framing." Does that make any sense to anybody?

"I bear no hostility to Briana. I feel a lot of sympathy

that she's in this situation. I feel sympathy for Justin who

has fled. The decision of how to deal with a crime like this

is heart-breaking and painful, no matter how you choose to

deal with it." Do you remember her speaking those words on

that stand? Do you remember her demeanor, her tone?

If she's lying to all of you, then last Sunday the Academy

Awards made a mistake. The award for best actress should have

gone to her rather than the French woman who actually won it.

Does Lacey Phillabaum have a motive to cooperate with us?

Of course she does. She was looking at a 35-year mandatory

minimum sentence. She has a huge -- she has 35 years worth of

motive to cooperate, but that's not really the relevant

question, is it?

What does she tell you? "I care greatly about doing the

minimum amount of time in prison possible, but I will tell you

that if there was any risk, it was that I would have a

convenient memory lapse and not remember Briana being there.

There have been days when I thought I would kill myself before

I would testify against her. I am not telling the truth
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2592

because I owe it to the prosecution. I am telling the truth

because I owe it to the victims of the crime."

She has a motive to cooperate. That is a given, but think

about the most relevant question. What motive does she

possibly have to come in here and fabricate a false accusation

against anyone?

Wouldn't that be the worst possible thing you could do --

you would be better off saying nothing -- to come in here and

lie and try to frame an innocent person? Because you know

what's going to happen. You give a name, and Special Agent

Halla and the other FBI agents are going to go out and

investigate. And if you accuse Jane Smith of being the

lookout and then go and find out that Jane Smith is actually

in Chicago that weekend, then you are in worse shape, right?

Remember the circumstances, the exact circumstances, as to

how Lacey Phillabaum came to cooperate with us. Do you

remember the story she told? And actually, it came out better

in cross-examination than it did in direct.

What happens -- we are talking mid February. On February

16th and February 17, 2001, a Thursday and a Friday, Andrew

Friedman and Ted Halla go down to Eugene. Why? Because they

are going down to interview people that have been indicted in

Eugene and are starting to cooperate, Chelsea Gerlach and

Suzanne Savoie.

They go down, they spend two days, they talk to them.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2593

They get done, they reach some conclusions, and over that

weekend, Special Agent Halla told you, he was basically trying

to get ahold of either Waters or Phillabaum. He had a number

for Mr. Phillabaum, so he calls Mr. Phillabaum sometime over

that weekend and says, in substance: "Your daughter is in

trouble. We really want her to come in and cooperate, and we

hope she does." The dad says "Well, is it civil or criminal?"

"It's criminal." Okay, that's it.

Ms. Phillabaum describes coming to Seattle, and actually

not even having her mind made up at that point in time as to

what she's going to do. She comes to Seattle, she meets with

her attorney, Mr. Offenbecher, but that isn't the key fact

that she comes up with.

She tells you, "I thought they would tell me something

about it beforehand, but they didn't," referring to us.

"Immediately prior to going to the United States Attorney's

Office, I was told by Lauren Regan" -- that woman that

Mr. Bloom pointed out here in the front row -- "that Chelsea

Gerlach and Suzanne Savoie were cooperating, and in my mind,

the truth was coming out; it was time to be truthful."

It wasn't anything we did that pushed her to cooperate.

It was Ms. Regan providing her what turned out to be accurate

information that two of the individuals involved in the

overall conspiracy were cooperating. Now, she doesn't know

what they are cooperating about, but obviously in her mind
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2594

she's anticipating the worst. So she comes in and spills the

beans.

Ms. Phillabaum doesn't know that Justin Solondz is out of

the country. She does not know -- clearly she does not know

that Jennifer Kolar has not named her as one of her

co-conspirators. There was no deal prior to this meeting.

She came in and gave a proffer. Remember that letter? There

was a little confusion about that.

To put this in perspective, a proffer is kind of a little

bit of a dance. There's no agreement at this point in time.

Somebody is going to come in and talk to us because they know

they are in trouble, and they are hoping to get a break. It's

not a confession. If it all doesn't work out and an agreement

isn't eventually reached, you can see in the letter we can't

use their statements against them. So if Ms. Phillabaum had

come in and talked to us on February 21st and later said "Gee,

I don't like the plea offer," and she went to trial, I

couldn't bring up those statements and say "Oh, hey, when you

came in on the 21st, you already confessed to that."

We could use it to follow leads; we could do those types

of things, but basically it was the start of a process that

eventually ended up in her reaching a plea agreement.

What happens on February 21st? She tells us a ton of

facts. Very critical information. Even more important,

virtually everything that she tells us in that interview on
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2595

February 21st is confirmed by physical evidence we are able to

later recover.

Why do we focus so much on physical evidence, and why do I

talk about that so much during this summation? People can

lie. People can misremember. But physical evidence stands

there. It's the pillars that you can always look for. You

are always looking for, did somebody else say a similar thing?

Is there a record that shows that, in fact, this is what

really happened?

Think about Lacey Phillabaum's testimony. She says she

comes in and describes, first of all, a meeting at the

Evergreen State College on the weekend prior to the arson.

Why do you know that that, in fact, is accurate? Because you

have Jen Kolar's calendar, Government's Exhibit 617C, and what

do you see, looking at the weekend prior to the arson? It's

very hard to see, but if look at the 12th right there, you see

a notation for "library."

On that initial interview, Ms. Phillabaum describes that

there were incendiary bombs built in the house, the little

garage behind where Briana Waters was living. How do you know

that's true? Leap ahead to one of the next interviews, 1013C.

We don't know where Briana Waters was living, and we are

trying to find out. So on March 30th, we bring Lacey

Phillabaum in and we show her some pictures: "Hey, is this

the house where Lacey Phillabaum was? Is this the house where
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2596

Lacey -- excuse me, Briana Waters was? No, no, no." So she

flips this photograph over that we showed her and she draws --

this is the location where it was. There's a house on the

front, and there's a little garage behind and there's a school

back here. You know what? When we go over to Conger Street,

guess what we find? Exactly this.

She describes Justin Solondz taking this Defendant and

Ms. Phillabaum back to the clean room to show the incendiary

bombs that he's building. We search Justin Solondz' cabin and

what do we find? Of all the obscure things to find, multiple

hair nets and shower caps in a men's clothing room. What's

that there for? It's exactly what you would use if in fact

you were working in a clean room.

She tells us that Justin Solondz bragged about coming up

with a new device, different than the other ones, that he was

using a bladder for gas and Tupperware rather than buckets.

Now, keep in mind, when she's telling us this on February

21st, nobody has gotten any discovery in this case, nobody's

been charged, Mr. Rodgers has already committed suicide, so

it's not like: Oh, these reports are floating all around.

But, this is what she tells us, and lo and behold you have

Don Sachtleben come in and talk to you about what's recovered

in Toby Bradshaw's office on the morning of May 21st and 22nd.

What is it? Well, you've got the Tupperware bag right here,

and then you have the bladder. In fact, you heard all the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2597

descriptions from John Comery about all the other arsons that

we heard about in this case. This is a new device. This is a

new design, and it is exactly what Lacey Phillabaum described

on February 21st.

Justin was talking about the incendiary bomb devices and

the improvements in the design that he made which involved

using bags and water bladders, like you would use if you were

running or something, instead of what had been used before,

which I believe was buckets. That was her testimony.

She describes a meeting in a field where all the

co-conspirators got together and they all pledged that they

would not talk, that they would remain silent if arrested.

What happens when we search Bill Rodgers' house? We find his

new guide on how to commit arsons and crimes. If you look at

515I, there's a page that specifically talks about how do you

do an arson. What is on the pre-action checklist? At the

bottom here, "confirm that each person pledges to remain

silent if arrested." Physical evidence corroborating exactly

what Lacey Phillabaum tells us on February 21st.

Most critically, Lacey Phillabaum tells us that Briana

Waters provided the rental car for this arson and, in fact,

she used her aunt to get it. Who was the only blood relative

in the immediate area of this Defendant's? Robert Corrina.

He rents one car that entire year. If you look at the rental

records, 771, there's Mr. Corrina's car for the exact time
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2598

period of this arson. Physical records corroborating

Ms. Phillabaum.

She borrows this car on the night of the arson. She pays

him back in cash. In fact, you know that's true because you

have Exhibit 774, the cash deposit. Once again, the only cash

deposit into Mr. Corrina's account for an eight-month period

in 2001. The entire records that we were able to obtain.

Pull up the rental records. Look at the mileage. 237

miles. Is this a car she used driving around Olympia? No,

this is a car used on a trip.

Ladies and gentlemen, that isn't proof beyond a reasonable

doubt. That's proof beyond all doubt. There is no possible

explanation as to how Lacey Phillabaum could know that this

Defendant's cousin rented a car one time in 2001 that very

weekend, unless that's exactly how it happened.

Let's talk about Robert Corrina. They are first cousins.

They are good friends. They went to high school together for

a year. She comes out to the West Coast, she swings by

Greeley to see him. He moves out to Olympia. They move in

together. She lives at his house for various periods of time.

They are close. He watches her back.

They want you to believe that Robert Corrina will throw

all of that away and come in here and commit perjury. Think

about it. It's not just perjury. He didn't just come in and

say: "Oh, this Defendant rented the car from me." He gave
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2599

you a fairly detailed story, right? So they want you to

believe that not only is he committing perjury and framing his

first cousin that's been one of his good friends his entire

life, but he's going way over the top. He's just creating

stuff whole cloth all over the place.

"There's an implication in there that I am keeping myself

out of jail, which implies that I have been threatened in some

way. If I had been threatened in any way, I would neither

cooperate nor capitulate in any way, and if my wife or son had

been threatened in any way, or I perceive it would be the

opposite of cooperation, I would become enraged. So I am

telling the truth. My lawyer asked me to tell the truth.

Briana knows I am telling the truth."

Do you remember him telling you that from the stand? Do

you think he's making that up? Do you think that's another

big act here, a big super conspiracy, somebody in here framing

Briana Waters?

Mr. Corrina would be critical in this trial for just one

thing -- just to come in and admit the rental records, and

that would be a critical witness. But think about all the

other things he does in this case. Look at his bank account.

Is this a person -- a family, he and his wife and their young

son -- that has $200 to throw around so that they can drive a

couple blocks down to Otto's to have lunch?

You know he's in Olympia the whole weekend because you
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2600

have his charge records, right? You know, he does go down to

Otto's -- they don't take any trips, so there's absolutely no

explanation for Mr. Corrina going 237 miles. Above and beyond

that, you've got to think about putting yourself in

Mr. Corrina's shoes. He doesn't have two nickels to rub

together, yet, he's out this one weekend blowing 200 bucks on

a car for the only time this whole weekend, for nothing? Does

that make any sense to anybody?

What else does Mr. Corrina tell you? He tells you the

Defendant comes in on Sunday and lies to get the car. "I am

sick. I have to go to the emergency room. Justin's car is

not working, I have to borrow yours."

You heard witnesses from the Olympia emergency room. She

didn't go to either of the emergency rooms in Olympia. If she

had, she would have been treated and there would have been

records of them.

Now, she wants you to believe, conveniently, that: "Oh,

gee, there must be some confusion about the other time I went

to the emergency room. I am sure that's what Mr. Corrina must

be confused about."

It was interesting. She looked at this record yesterday,

but they didn't introduce it into evidence. Do you remember

that? She said: "Yeah, I went to the emergency room on

January 21st, and that must have been the confusion."

Well, I asked it to be introduced today. I wanted you to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2601

see this. Ms. Waters did go to the emergency room on January

21, 2002. She didn't go in the middle of the day, she didn't

go late at night. She went at 6:00 in the morning. You will

see from these records that indicated she had woken up early

that morning with very bad stomach pains and went down. So

she's there at 6:00 in the morning; she's out at 10:30. This

is where Mr. Corrina is confused? I don't think so.

The Defendant steals, or I should say borrows,

Mr. Corrina's cordless phone that night. Now, I know that

sounds kind of stupid, but I want you to think about it.

That, I suggest to you, is simply a fact no one can make up.

If you are thinking about making up a story, you can think up

a lot of things, but I am telling you, "somebody stole my

cordless phone when they left that night" is not one of the

facts you would normally come up with. I suggest to you that

shows you that Corrina's telling you the truth.

Do you know what else it tells you? It tells you just how

carefully this Defendant was planning this action. Not only

does she arrange to have a car, she arranged to have it in

her -- not even in her cousin's name, but in her cousin's

wife's name. When she gets to the house, she steals the one

mechanism -- he doesn't have a cell phone -- the one mechanism

he has to contact her.

What a coincidence. The Defendant lies about having to go

to Seattle. You heard the emergency room people. She didn't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2602

have to go to Seattle if she was really sick and had to go to

the emergency room. She has to have some excuse to explain

the mileage, so she has to come up with a rationale for "how

do I get this many miles on the car?" "I know I am going to

be in Seattle," so the excuse is, "nobody would take me in

Olympia," no explanation as to why she wouldn't have stopped

in Tacoma. "I had to go all the way to Seattle." Therefore

the lie is complete and the story is a good cover.

What's shocking about Mr. Corrina's testimony is, first of

all, I would suggest to you from his demeanor and his

relationship with the Defendant, it is totally credible;

that's what the evidence proved. But once again, every aspect

of Mr. Corrina's testimony to you, this critical testimony, is

corroborated by physical evidence, something you can't make

up.

Look at Exhibit 771. It's the rental car records. Once

again, there's no confusion -- you don't have to remind

somebody, when did I rent the car? It's this weekend. This

is the mileage that is used. These are the times it's brought

back. Look at the mileage, 237 miles.

Is there another explanation, any rational explanation?

Oh, a bunch of trips around the Olympia area? Give me a

break. Look at their bank statements. Look at their credit

card statements. They are in Olympia this weekend and they

are poor. Do you think they have got 200 bucks to throw
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2603

around to go down to Otto's and go down to Ralph's? It's

their only car rental for the entire year.

I say that because, in truth, when you look at all of

their records, that's a physical record that confirms what

he's saying; it's the lack of any other car rentals that year.

Look at the Defendant's reimbursement. On May 29, 2001, the

only time in the records that we have for Mr. Corrina, he

makes a $200 cash deposit. Only time.

There's another record that I want you to look at that

ironically we have not talked about, although the record is in

evidence. Look at Government's Exhibit 745. Those are

records relating to Justin Solondz. That's his bank account.

If you go to page 55 of Justin Solondz' bank account, you

see records for his bank from May of 2001. If you go to the

next page, what do you see? The day this car is rented, May

19th, you see an ATM cash withdrawal of what? $200. What a

coincidence. The very day the car is rented, Mr. Solondz is

withdrawing the very amount that in fact Mr. Corrina is going

to be reimbursed.

Both Ms. Phillabaum and Mr. Corrina say that there was a

possible scrape on the car that they were both worried about.

In fact, Mr. Corrina said this Defendant brought it to his

attention and you say "well, that's just kind of his words."

It isn't his words.

Look at his calendar, Exhibit 777. He returns the car.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2604

The following Monday, on May 28th, what do you see? Call

Budget. You can say to yourself, maybe I am going to rent

another car. That's why you are calling Budget. You know

that's not true because you've got his records and he doesn't

say that.

What's the only rational explanation for why he would be

calling Budget a week later? It's the explanation that he

gave you. I was worried about the scrape that the Defendant

told me about. I hadn't seen it, but I was worried there

might be another charge; you know how tight money is with

them.

That is physical evidence corroborating Mr. Corrina's

story that this Defendant told him, after she returned the

car, there might be a scrape on the side. That testimony from

Mr. Corrina directly incorporates itself with Ms. Phillabaum's

story, exactly.

Finally, keeping Exhibit 777 up. In cross-examination

there is this kind of implication: Oh, gee, you really needed

the car because you didn't have your bike. You had to take

your bike to the bike shop. Well, that's just a bunch of

garbage because you can see right here on May 25th there is

his note, "take bike to bike shop." He doesn't take the bike

to the bike shop the week prior. It's on May 25th that he

takes it to the shop.

Let's talk about Jennifer Kolar. Ms. Kolar's memory,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2605

although suspect, on point is crystal clear and unwavering on

the critical point applicable to this Defendant, and that is

she was the lookout at the Center for Urban Horticulture arson

on May 21, 2001.

Did it appear when Ms. Kolar testified that perhaps she

has not totally addressed her criminal activity? I think that

would be a fair assessment. She indicated she was hoping

maybe, even though the plea agreement calls for her to do a

minimum of five years, and she understands that we are going

to recommend seven years, that gee, maybe out of the blue, the

Judge would cut her a break and give her no jail time.

Maybe that's human nature, that you always hope for some

miracle at the end. But if you look at Exhibit 791, which is

entered into evidence, her plea agreement, that is a dream;

that is a fantasy. There is a contract between us and

Ms. Kolar.

At some point in the near future, we are going to be in

this very courtroom and we are going to be recommending

strongly to this Judge that she be sentenced to a period of

seven years, and the best she can ask for is five years.

That's what the contract is.

Now, technically, could Judge Burgess throw out the plea

agreement? He could. That's always the Judge's prerogative.

If that happened, Ms. Kolar would be back at square one. She

would be looking at charges that would amount to up to a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2606

mandatory life sentence, and I think we all know that's not

really an option that anyone is going to exercise.

Ms. Kolar, like Ms. Phillabaum, has every motive to

cooperate, even more. She was looking at mandatory life

because she was involved in two arsons involving incendiary

devices, even though I don't think in her mind she really

realized that. Technically and legally, she was.

But I ask you the same question I asked about

Ms. Phillabaum. She has a motive to cooperate. What is her

possible motive to identify this Defendant if she wasn't

involved? Think about it. She realizes, in late December

when she calls and identifies this Defendant, in December of

2005, that the house of cards is just starting to fall down.

In all likelihood, other people are going to be coming in and

cooperating.

So if she misidentifies people, as with Ms. Phillabaum's

case, she will be much worse off than she had been if she had

just kept her mouth shut. Maybe you hold somebody back, but

misidentify someone?

The first time this Defendant's name is mentioned was when

Jennifer Kolar, on December 29th, calls Michael Martin and

says: "I remember who was the lookout at the Center for Urban

Horticulture arson. It was Briana Waters."

Certainly not a name that we gave her, because we never

heard of the name Briana Waters. So you've got to ask
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2607

yourself, when that call was made, what possibly could be

going through Jennifer Kolar's mind to frame a totally

innocent person? A person that had been her friend. A person

that they had had a relationship with.

You can think about her mindset. Well, maybe she's

protecting somebody. Maybe she's protecting Joe Dibee or

something like that. That doesn't make any sense. She comes

in, even in the December 16th interview, and mentions that Joe

Dibee did Cavel West and did Susanville. In fact, this was

the leader, really, of Susanville, so she's not protecting Joe

Dibee.

Maybe it's a frame. Maybe it's the big conspiracy theory.

Lacey Phillabaum and Jennifer Kolar are trying to frame poor

Briana Waters. Well, that's just a bunch of garbage, and you

all know it is.

First of all, there's absolutely not one scintilla piece

of evidence that there was any connection between the two, but

ignore that. You know they are not trying to frame her

because Lacey Phillabaum doesn't know that Jennifer Kolar

didn't ID her.

If they were going to get together and get a story, trust

me, one thing they would be clear on is, "hey, I am not going

to name you, Lacey, so don't confess." Don't you think that

would be the one fact they would be absolutely clear on?

The last thing in the world Lacy Phillabaum would have
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2608

done on February 1st was come in and confess if she knew her

buddy and co-conspirator Jennifer Kolar was protecting her.

Think about the February 4th Olympia trip. That's the

trip where Tony Torres drives down to Olympia. They can't

find where Rodgers was living, so Kolar thinks they are going

to be able to find the house. That works out; they do find

Rodgers' house. She mentions, "Gees, I remember a meeting

over at the Evergreen State College," they go over there, but

there's construction and they can't really find the office.

But think about the little things she tells you on the way

back. On the way back, they are talking, and they are trying

to kind of prod her memory along. That's really what's going

on all during January and February. They are not giving her

information, but they are providing mechanisms for Ms. Kolar

to try to refresh her memory. Let's go over the computer

records you have. Let's go through your calendar. Let's go

down to Olympia and drive around. Maybe any of these things

will prompt her. It's not really working that well, but

that's what's going on.

On the way back, Special Agent Halla says: "Hey, you

know, we are looking to approach people. We are thinking

about talking to Briana Waters, we are thinking about talking

to Lacey Phillabaum," you know, "What do you think about

them," talk back and forth. What does she say? "I think you

should try Briana Waters. I think she might cooperate with
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2609

you."

What does that tell you about Jennifer Kolar's mind? If

her mind was: "I am framing Briana Waters for a crime she had

nothing to do with," would you tell Special Agent Halla: "Oh,

hey, go talk to this woman so she can tell you I had nothing

to do with this and this is a big frame?" Of course not. If

I was framing Andrew Friedman, I would tell Special Agent

Halla, "Don't go talk to that darn Andrew Friedman, he's such

a liar, he will probably deny everything in the world about

this stuff."

That isn't what Jennifer Kolar does. She says, "You

should go talk to her. I think she will cooperate. I think

she will help you out." A comment of someone who is framing

an innocent person? I don't think so.

She doesn't remember Lacey Phillabaum and Justin Solondz

being there. It's strange, no question. I would suggest to

you, though, that if you use your common sense, you would

expect -- if she in fact was fabricating the story, it would

have broken one of two ways. Either you say "Lacey was

involved, but I don't remember Briana and Justin being there,"

or "I think Briana and Justin were there," but you forget

Lacey.

The fact that she would specifically remember Briana being

involved, not ID her boyfriend and not ID Lacey, I suggest to

you that in fact it is not an intentional coverup, but that is
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2610

a determination for you to make. It is a determination that

would be relevant but not critical, because the critical

action is she did ID this Defendant.

What do we know about this Defendant, even before she gets

on the stand to testify? Well, we have her quote from the New

York Times, Exhibit 740B, "As long as people don't get hurt, I

totally support it." I suggest to you there's no other way to

read that sentence, that the "it" she is fully supporting is

arsons. That's what she's saying in 1998.

You heard Tiffany Tudder say this is a big deal. I mean,

who gets mentioned in the New York Times when they are in

college? No one. This Defendant wants you to believe, "I

didn't even read the article." Yeah.

What was the Defendant thinking during this time period?

None of us really knows. Obviously, we can't get inside her

mind. What we can do is look at other things, and we have

Exhibit 614 that provides us some guidance on that. Exhibit

614 is the manila folder that had the articles in it.

First of all, her fingerprint is on the article. Second,

you can read the words: "Hey, woman, here's some stuff" --

MR. BLOOM: Objection to fingerprints on the folder.

MR. BARTLETT: Did I misspeak, Your Honor?

THE COURT: I think so.

MR. BARTLETT: I apologize. It's clearly on the

folder: "Hey, woman, here's some stuff to read that I was
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2611

telling you about. We'll hang out soon. Heart-B."

Now, there's been a lot of discussion about whether this

is unfair. I didn't choose these articles to put in here.

She did. I didn't write the note to a co-conspirator saying,

here are some articles I am choosing to send to you. Not only

am I sending them to you, I want to talk to you about them.

Clearly, she thinks these are important. You will hear

Jennifer Kolar's description of the articles. She doesn't

even read them. She kind of glances through them, throws them

in a box and eventually turns over the box. But there's

supposed to be some kind of big conspiracy, she really did

read it, somehow Justin Solondz -- it is absurd. These are

her articles. You know the timeframe that these articles are.

If you look through -- forget looking at what the substance of

the articles are. You can see, for example, that the article

"It ain't easy being green. Echo means promo" -- if you look

at the very bottom, this article was downloaded on January 18,

2001 at 3:55 a.m.

This is someone who is really into looking into this

philosophical and theological angle of the green movement. If

you look at one of the other articles, you will see that it is

downloaded from the Internet on January 4, 2001. These aren't

articles that came out of the blue. This is right during the

time these conspiracies are being discussed, 2001.

What are the articles about? They are echo anarchist
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2612

articles. The only way to really save the earth is to destroy

capitalism. The Defendant chooses to talk to the New York

Times in 1998 and indicate that she supports arson. The

Defendant chooses to select these articles and send them to

her co-conspirator and say let's talk about them, and then she

complains to you that it's so unfair that they are doing this.

At some point in her life, this Defendant must realize

that part of being an adult is accepting consequences for the

actions that you choose to undertake.

Where do you see identical language to the thoughts

expressed for the articles she chooses to send to Jennifer

Kolar? Look at Exhibit 401A, the ELF website, their ideology,

exactly the same.

Look at the articles recovered from Justin Solondz' cabin.

Look at the articles recovered from Bill Rodgers' cabin.

These are the articles not only associating with each other

and hanging out together; they are exactly the type of echo

anarchist articles that are the backbone of the ELF.

I want to talk briefly about the Plum Creek Watch Mountain

campaign. We heard a lot of discussion about that. I think

it's fair to say that there's a lot of people who were very

happy about the eventual outcome of it, and I don't want to

talk about that. I want to focus on another aspect that

everybody has kind of ignored.

The protest was eventually successful, but when it was
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2613

eventually successful was when the protest went from kind of

the tree sitting, nonviolent to let's go into Seattle and

occupy the Plum Creek Lumber Company offices and get in their

face. That's really what turned the tide. So I would suggest

to you what is really learned from Plum Creek isn't that

sitting around the fire singing "Kumbaya" is the way to win

these things, it is direct action against corporate entities

that is the only effective way to win environmental campaigns.

"That really isn't my thought." If you look at the

self-evaluation that this Defendant wrote to her teacher in

December of 1999, you will see her describe how the campaign

went. "The most intense period of time came the week before

the deeds were to be signed over to Plum Creek Timber Company.

In conjunction with the many environmental groups putting

pressure on politicians and Plum Creek, the Cascade Defense

Network decided to put their own kind of pressure and make a

visit to Plum Creek's headquarters in Seattle."

"This action plan in a couple days' time was meant to

force Plum Creek into negotiating with the mainstream groups

to remove the Watch Mountain and Fossil Creek parcels from the

land exchange."

"15 out of 23 activists made it to the 23rd floor to Plum

Creek's office where they presented the office with an

'eviction notice' and confronted employees about the trade.

The next day, Plum Creek entered into negotiations with
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2614

members of the Gifford Pinchot Task Force. After a few days,

Watch Mountain and half of Fossil Creek were dropped off the

exchange with PC as willing sellers of the other half of

Fossil Creek."

Those are this Defendant's description of why that

campaign worked in December of 1999, and you remember during

her cross-examination, she told you that as they were in the

Plum Creek office, what were they telling them? "We are not

going away. We are going to keep coming back. We are going

to keep doing this. We are not going to let you cut these

areas. Whatever it takes, we are going to push. We are

committed. Whatever it takes. We are going to push."

Should we take a short break, Your Honor?

THE COURT: Do you need a break or can we keep going?

MR. BARTLETT: One of the things that's interesting

about this case, it is not just the big things that line up,

it's just not that Lacey Phillabaum and Robert Corrina and

Jennifer Kolar and the bank records all line up. When you

look at it, even the little things add up.

Exhibit 712. This Defendant gets Bill Rodgers a cell

phone. She who has no money, no cell phone of her own, feels

close enough to Bill Rodgers that she goes out and gets him a

cell phone because she knows she can trust him, because they

are very close. She knows he will always pay his bill. She

knows she's in no risk of being hurt by this. She doesn't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2615

just do this for a while. She has his cell phone, Bill

Rodgers' cell phone, in her name for 18 months.

Exhibit 713, look at the phone calls from Bill Rodgers'

phone. Who gets called the most? I would suggest to you that

it's clear this Defendant gets called more than anybody. All

of the calls to Robert Corrina, virtually all the calls to

Ocean -- you can look at the diagram where it shows the calls

ending as soon as she moves out of the house. If you add just

three or four of the Teresa Howell calls to her, Bill Rodgers,

the acknowledged leader of this conspiracy, calls this

Defendant more than anyone else.

Yet she wants you to believe when she testifies, "oh, we

never talked about environmental matters. That never even

comes up." Her whole life has been working on environmental

matters. His whole life is centered on environmental matters.

Yet, she gets on the stand and wants you to believe, "oh, no,

we never talked about that."

MR. BLOOM: Excuse me. Objection, that misquotes the

testimony.

MR. BARTLETT: Both she and Mr. Rodgers have no calls

during the critical period in May of 2001. Exhibit 715, a

graph of Mr. Rodgers' phone -- no phone calls during that

weekend.

Exhibit 735 is a graph of the Conger Street home. Once

again, no toll calls during that weekend. No. 4, you have the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2616

two calls from Mr. Dibee. Once again, something small. This

isn't like the whole case is resting on this. Another small

fact, two calls from Mr. Dibee's phone. Five years worth of

phone records. Two phone calls ever to an address --

Mr. Corrina's address -- from Mr. Dibee. When did they occur?

Just before Susanville and just after Susanville. What a

coincidence.

You have Exhibit 550, the police scanner. Once again,

something small. But this is a police scanner with an earbud.

It is recovered from Mr. Solondz' cabin. It is exactly what

the lookout at the Center for Urban Horticulture would have

been wearing as she sat in the bushes watching for police,

listening for police or firemen to come by.

You have the photographs of Mr. Solondz. You have the

before photograph and then you have the after photograph.

Does that look like somebody who is trying to change the way

he looks? I would suggest yes.

You have the billing records for Ralph's Thriftway.

Really two different sets of Ralph's Thriftway records. The

first are the charges to her ATM, her Debit card, her credit

card. In the entire year of 2001, there are three charges

that show up on her billings, all during the week prior to

this arson, all at a location three blocks from Mr. Rodgers'

house.

Now, before she had the records, she told you, "I go to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2617

Ralph's all the time," "I am there all the time," but then

when she looked at the records, she was never there. She

says, "oh yeah, there must have been charges to use your debit

card so I must have paid cash." Sure. Just a coincidence

that the three times -- three charges are there the week prior

to the arson, and the entire rest of the year, not one single

time does she make a charge there.

Then there was their big dramatic evidence, that, wow,

here's the linchpin that will get us off: she made a charge

at 7:12 p.m. on May 20th. I would have loved to have had that

record. That is exactly when I assume they were leaving

Olympia. Think about it. You heard the records today. It

doesn't even get dark until 9:24 on May 20th. Use the

StreetFair and all that crap. Who cares. They are leaving at

7:12. She's there three blocks from Mr. Rodgers' house. The

arson occurs sometime a little before 3:00. This is somehow

some kind of exculpatory evidence? Don't be ridiculous.

You have Solondz' bank records once again showing the $200

deposit. Again, something small but exactly on the right

date, exactly in the right amount. You have the map from

Mr. Solondz' cabin. Once again, something small, but here you

have a map; there are 29 panels on the map. Where is it open

to? Of all the places in Seattle, it's open to the Center for

Urban Horticulture.

I want to talk to you -- changing direction for just a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2618

bit -- I want to talk to you about the jury instructions. I

am not going to talk about all of them, but some of them.

Instruction No. 4 tells you what is evidence, and we

talked about it at the very beginning of the case. When I

talked about the three pillars, it wasn't my opinion. It is

what the Judge has told you -- the sworn testimony of

witnesses, the exhibits that have been received into evidence,

and any facts that have been agreed to or stipulated on.

That's what you focus on.

What isn't evidence? Instruction No. 6. In reaching your

verdict, you may consider only the testimony and exhibits

received into evidence. That's it. Certain things aren't

evidence. No. 1, arguments and statements by lawyers are not

evidence. The lawyers are not witnesses. I say that to you

because at times when you sit through a trial like this, it

might get a little confusing when you hear something, you say

where did I actually hear that? Did I hear that from a

witness on the stand, or was that one of the lawyers just

talking?

In the defense opening statement, there were a lot of

claims about she's innocent, she had nothing to do with this,

over and over again. After a while, I would suggest to you

that has a bit of an effect on you. You begin to think: Gee,

there must be something there. But this instruction tells

you, in fact, that you just ignore that.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2619

My opinion, utterly irrelevant. Anybody else's opinion,

utterly irrelevant. The only thing that is relevant to you is

testimony, exhibits and stipulations, and you have to ignore

all the rest.

Even if perhaps on the street, if you were talking to

somebody, and somebody was really adamant about something, you

would say, "Gee, I really need to give him a little break on

that, he must know what he's talking about." In here, you

can't do that. The instruction actually tells you, you cannot

do that.

Look at Count 1. It's the conspiracy instruction, and it

appears in Instruction No. 16. There are three things that

the Government must prove beyond a reasonable doubt, and when

we are talking about reasonable doubt, of course we are

talking about the elements of the crime.

This is what we must prove to you beyond a reasonable

doubt, and when you go back to deliberate, this is going to be

the focus. What are those three things?

First, at some time between 1996 and October 2001, there

was an agreement between two or more people to commit at least

one of the crimes charged in the Indictment. I suggest to you

that you are not going to waste a lot of time on that one,

because clearly there was a conspiracy, there was stuff going

on. There were a lot of arsons involved in this case. You've

heard summaries of them. July 21, 1997, Cavel West, Jennifer
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2620

Kolar's first action.

November 29, 1997, the Bureau of Land Management Wild

Horse Corral in Burns, Oregon.

June 21, 1998, something I always refer to as the "mini

double whammy." It was the two arsons in Olympia in 1998.

The one at the National Wildlife Research Center, and the

second at the Animal Damage Control Facility.

May 9th, 1999, Childers Meat Company, Eugene, Oregon.

December 25, 1999, Monmouth, Oregon, the Boise Cascade

offices.

January 2, 2001, Superior Lumber in Glendale, Oregon. The

"double whammy," May 21, 2001; the Jefferson Poplar Farm arson

down in Clatskanie, Oregon.

The Center for Urban Horticulture arson at the University

of Washington in Seattle.

Finally, the Bureau of Land Management arson in

Litchfield, Oregon at Susanville, October 15, 2002.

There is a conspiracy here. There is an agreement to

commit crimes.

The second element. The Defendant joined the conspiracy

knowing of at least one of its objects and intending to help

accomplish it. And then third, sometime between May 11, 2001

and October 2001, one of the members of the conspiracy

performed at least one of the overt acts. One of the overt

acts, clearly. So what are you really going to focus on when
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2621

you go back to deliberate? Number 2, right? Was this

Defendant -- did she join them? That's going to be the focus

of your deliberations.

There are some related instructions. Instruction No. 17

deals with multiple conspiracies. There might be an argument

that: Gee, the conspiracy changed over time. Other people

were involved. Well, when you think about it, and you look at

the category set forth in Instruction No. 18, you will see

that, in fact, in this case, there was clearly only one

conspiracy. How do you know that?

Well, first of all, you have the continuity of people

involved at various times throughout the entire course of the

conspiracy: Jennifer Kolar, Joseph Dibee, William Rodgers.

You have the targets, the same types of targets. You have the

types of devices showing a continuity of plan.

Do you remember the development of the devices? It was

almost like watching the Discovery Channel. You have the very

simple devices, the gallon milk jug with the sponge in the

handle. Then you've got the next development. Then you've

got the next development.

But the key, the key that -- how you know this is one

conspiracy really lies in two things: the communiqués where

you have ELF and ALF jointly claiming responsibility for every

one of these arsons. Why do they claim responsibility?

Because doing one arson does nothing for this group. Nothing.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2622

They know that burning anything down one time is not going to

affect anything. In their mind, to have an effect, you have

to do a number of them.

Why do they do a "double whammy"? Because they want more

bang for their buck. They want to do it on the same night.

Why do the communiqués reference other activities? Because

they want to tie it together. They want corporations to

change their activity because they feel threatened, and the

only way they feel threatened is to have a number of

activities, a number of arsons being threatened against them.

Do you remember Jennifer Kolar talking in

cross-examination about, gee, you know, GE, genetic

engineering, wasn't really a big deal to her. Her response

was very telling. It tells how the conspiracy worked and why

there was one conspiracy and why they all depended on each

other for their benefit.

"It was an issue that we as a group had agreed was an

issue that societally people were going to be in support of

what we are doing. It was something that we thought we could

change or win, and I did support that. It's the aim of the

group, it's the aim of the conspiracy. That is what's being

driven by these arsons."

Mr. Friedman, if you could put Instruction No. 19 on the

overhead.

Counts 2 and 3 obviously don't exist for this Defendant,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2623

so we are skipping right to 4. The Defendant is charged in

Count 4 of the Indictment with possessing an unregistered

destructive device, an incendiary bomb, in violation of

Section 5681 of Title 26. Two elements. The first is that on

or about May 20, 2001, the Defendant knowingly possessed -- or

in her case, it's almost always aided and abetted or helped

someone else possess -- a destructive device, an incendiary

bomb.

And second, the destructive device, the incendiary bomb,

was not registered to the Defendant or other persons in the

National Firearms Registration and Transfer Record.

Let's take the easy one first. Number two, you have got

the certified records at 781, 782, 783, 784, 785 -- the five

people in this Indictment -- you have the certified record

saying they are not registered. So I don't think you will

spend a lot of time on that one.

Element one is possession of the destructive device, in

this case, an incendiary bomb. The first question you are

going to ask yourself is whether it's a destructive device.

If what was recovered at the University of Washington, what

you have seen, the plastic here, what Donald Sachtleben

described -- is that a destructive device?

Look at Instruction No. 21. It might have been kind of

hard to follow because you don't see it in front of you, but

what Judge Burgess was reading to you is that, in the code, in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2624

the United States Code, our laws, a destructive device can be

really one of three types. It can be an explosive type. It

can be an incendiary type, or it can be a poison gas type.

Of those three types, you kind of have six different

categories. You could have an explosive bomb, an explosive

grenade. You could have an incendiary bomb, an incendiary

grenade; all of those.

Do you remember Brennan Phillips, the guy from ATF?

Actually, he was our first explosive expert. Do you remember

him being on the stand talking -- he was the guy that had been

in the Army for a long time and now works at ATF. He told you

about these three. He said they work in different ways. An

explosive device works by exploding, supersonic shock wave,

buildings are knocked down; that's how they work.

An incendiary bomb doesn't work like that. A incendiary

bomb works by burning things. That's why they call it

incendiary. A poison gas bomb works by poison gas. So it's

really the three different categories.

In this case, you had Donald Sachtleben testify about the

incendiary bomb found at the University of Washington. Mike

Morgan, for the bomb found at Susanville, and Brennan

Phillips, for the bomb found at the Jefferson Poplar Farm.

I would like to tell you that that was some kind of clever

plan on our part to bring in three experts, but the truth is

that's just the way the evidence was analyzed, and that's why
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2625

we ended up bringing in three experts for you. But in some

way, it makes your job easier because the truth is, you heard

the devices described, and it was clear they were all set up

the same way; all of them.

Now, you also heard the expert that the defense called,

Dale Mann. You probably noticed that I didn't cross-examine

him at all, and that's because he just didn't know what he was

talking about. He did not understand the federal law. I will

read to you why I say that.

"Question: In your opinion, as an expert, to each of

those, all those options, the 18 options -- referring to these

18 options, the explosive bomb grenade, the incendiary bomb

grenade, the poison gas bomb grenade -- with regard to all of

those 18 options, six times three, they all have one thing in

common?

"Answer: I believe so.

"Question: What is that?

"Answer: That they all will explode."

Instruction No. 22. Well, actually, you are instructed on

what a destructive device is and what an incendiary device is

in Instruction No. 22. "A destructive device includes any

incendiary device, be it a military-type weapon or homemade

incendiary weapon, the function of which is to ignite and

destroy property. Although it may cause an explosion, an

incendiary device does not have to cause an explosion in order
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2626

to be considered an incendiary bomb."

So when Dale Mann says, they have to explode to be a bomb,

he simply is wrong. That's not my opinion; that's the law.

He didn't know the law. When thinking about his testimony,

that's how much weight you should give it.

"Any device containing combustible material capable of

producing sufficient heat to destroy property of any kind and

having components designed to ignite, that combustible

material is an incendiary bomb. The term "incendiary bomb"

does not include any device which is not designed as a weapon

for the destruction of property."

You remember Brennan Phillips talking to you about that.

There are some things -- in fact, I think the example was the

soap. Well, it might burn things down, but it's really not a

weapon. You have to have both in this case. I would suggest

to you that you heard overwhelming evidence that both existed

in this case. It was, in fact, a weapon designed to cause

damage by burning things and, in fact, it was designed to be a

weapon.

So the question you have once again, I believe, is fairly

simple, whether this Defendant possessed or aided and abetted

in the possession of that destructive device.

I want to talk about Counts 5 and 7 because they are both

arsons. They are really pretty similar. One of them is arson

under a theory that the Center for Urban Horticulture was a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2627

building used in interstate commerce or activity affecting

interstate commerce.

Count 7 is arson again, but the theory is that it's an

arson of a building owned or possessed by an institution

receiving federal financial assistance. So those are kind of

the two hallmarks of this.

What are the four elements we have to prove? Instruction

No. 24. First element, the Defendant damaged or destroyed

property, or aided and abetted in damaging or destroying a

property, a building.

If you think back on the photographs, Exhibit 320, I don't

think there's a lot of debate about whether there was damage

to a building based on the arson at the Center for Urban

Horticulture.

Number two, the Defendant aided and abetted the use of

fire to do so. Once again, if you remember, the video that

you actually have to see -- you don't have to listen to

anybody's testimony; you can see the fire that in fact caused

this damage.

Three, the Defendant acted maliciously. In other words,

it wasn't an accident. It wasn't somebody dropping a

cigarette carelessly. It was intentional. You saw this

exhibit. You saw the components. You've heard about the

careful planning that went into this. Ladies and gentlemen,

this could be the furthest thing from an accidental fire that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2628

you will ever hear about.

With regard to Count 5, the fourth element is a building

used in interstate commerce or activity affecting interstate

commerce. It was kind of dry testimony, but I want to direct

your attention back to Gary Quarforth. He was the budget

director that came in and testified. Do you remember him? He

came in and talked about what the University of Washington is.

I don't know about you, but for me it was really very

shocking, surprising.

It is a $2 billion holding company. That's how he

described it. A $2 billion holding company that he views in

kind of a three-tiered category. The first category is

education. That's what they are selling: Education.

The second category is research. They are not really

selling research; they are getting money to do research.

The third category is housing, food and entertainment.

He told you specifically that in 2001, housing, food and

entertainment generated for the University of Washington $267

million.

He went on to explain to you that the University of

Washington, for budgetary reasons, actually targets students

from out of state so they can get the increased out-of-state

tuition to help their budget. For undergrads, in 2001, they

had almost 11 percent of the student body was from out of

state, and 39 percent of the grad students.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2629

And with the Center for Urban Horticulture, you heard Toby

Bradshaw say that actually one of his primary sources of

funding was a cooperative that he had set up for businesses on

poplars, and although he wasn't doing genetic engineering, he

was helping businesses involved with poplar growing plants.

And in fact, they got first dibs on his research when he got

done with it; they got first dibs on the seeds when he

produced them, and in exchange for that, they gave him money.

I would suggest to you that there really was no question

that this, in fact, was a building used in affecting

interstate commerce with respect to the element of Count 5.

What about Count 7? Was the building owned or possessed

by an institution that needed federal financial assistance?

Once again, you had Mr. Quarforth describe to you -- I had

never realized, the University of Washington is the second

leading school in the United States for receiving federal

funding. Only Johns Hopkins receives more federal funding

than the University of Washington.

In 2001, $571 million of federal money came pouring into

the University of Washington. Specifically, with regard to

the College of Forest Resources in 2001, over $5 million came

in from federal funding. In addition to Mr. Quarforth, you

had Sarah Reichard, Toby Bradshaw -- I am forgetting

Mr. Hinckley's first name, but they all came in to describe to

you that not only does the school get money, but they as
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2630

professors and assistant professors are expected to get their

own federal grants, and they walked you through the various

grants that they all have.

Finally, Mr. Quarforth described that, with regard to the

Center for Urban Horticulture, they specifically have a

strange breed of federal funding. It's called the McIntyre

Stanis Funding. It's federal funding for any college that's

involved in forest research, and in 2001 they received between

$350,000 and $425,000.

Once again, I would suggest to you that although there are

four elements with regard to Count 5 and Count 7, when you go

back to deliberate, there's really only one question you are

going to be asking yourself: Whether this defendant aided and

abetted that arson.

Count 6 is using a destructive device during and in

relation to a crime of violence. You've heard a lot about

this count, and I am not going to kid you. This is the one

and only count that carries a 30-year mandatory sentence. I

am not going to hide that from you.

Before you get to this count, you have to focus on Counts

5 and 7, because the first element says that the Defendant

committed or aided and abetted in the commission of a crime

damaging or destroying a building by fire in interstate

commerce as charged in Count 5, or a building belonging to an

interstate institution receiving federal financial assistance
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2631

as charged in Count 7. So you have to get to Counts 5 and 7

to make up your mind, and then you get to this count.

Second element, the Defendant knowingly and intentionally

used or aided and abetted the use of a destructive device,

once again an incendiary bomb. I want to specifically make

sure you understand that. It's not just that she aided and

abetted the arson. She actually had to have aided and abetted

the use of the incendiary device.

Third, the Defendant or a person whom the Defendant aided

and abetted used the destructive device during and in relation

to the crime of damaging or destroying a building by fire.

Again, I would suggest to you that's very much a given.

Looking at, did this Defendant do things that aided and

abetted this incendiary bomb, I would suggest to you the

evidence is overwhelming. She supplied the clean room, she

supplied the car to transport it, she provided the lookout

which was the security to make sure that the destructive

device was effectively put into Toby Bradshaw's office so that

the building could be destroyed, and she helped with the

get-away. Any one of those things make this Defendant guilty.

All of them make her overwhelmingly guilty.

Let's talk about the defense case for a bit. Stan

Meyerhoff, remember the name? Stan Meyerhoff -- you heard

through John Comery's testimony that on March 17th,

Mr. Meyerhoff was shown this picture of the Defendant and
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2632

indicated "familiar," "not involved." And I guess we are to

believe that that means she's totally innocent; let's just all

go home. But there is really more to the story than that,

because what Mr. Comery tells you is that actually before

March 17, 2006 when he made that comment on the photograph,

Mr. Meyerhoff actually had talked about a woman with blonde,

curly hair that played the violin and was from the Bay area

who was involved in the Susanville arson.

Now, he may have missed the photograph, but I would

suggest to you that that verbal description fits only one

person in this small group: This Defendant, to a "T," even

getting the violin right.

Mr. Comery further describes that six days after that

January 25th interview where he physically described the

Defendant, he actually looked at the photograph of Ms. Waters

and said, "This looks like the blonde woman who was at

Susanville if her hair was blonder."

Mr. Meyerhoff, as the "oh, this case should be dismissed"

witness? No.

The December 16, 2005 interview with Ms. Kolar -- we have

heard a lot about that. I am going to cut right to the chase.

You have the notes, and you can look at them yourself when you

go back to deliberate. Special Agent Halla's notes about the

University of Washington -- this is what he writes: "A.

Organized the fire. 5 to 6. Capitol Hill Girl." Then it
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2633

goes on. But that's really the heart of what we are talking

about right here.

Then you have Special Agent Torres' notes. "Avalon

organized the arson. Unknown female, Capitol Hill Girl,

number two. Crazy Dan guy, number three. Punk Boyfriend,

number four. And me, number five."

What does that tell you? That tells you that they both

clearly heard something different. If Special Agent Halla

thought there were five people positively identified at that

point in time, you know it would have been in his notes. You

know he would have put it there.

What's interesting is, if you actually go to the next page

of both Special Agent Torres' and Special Agent Halla's

notes -- because if you look on the next page, a continuation

of the discussion, you see that Ms. Kolar on that day

described "left someone in bushes, lookout with radio."

Then you see with regard to Mr. Torres, right here,

"Someone at car for lookout. We left someone at car for

lookout." "Car/van and came in car/van and we left someone at

car for lookout."

That's what's in their notes. They eventually write a

written report, and they say, "The night of the arson, Kolar,

Avalon and a few other individuals met at a bar or restaurant

across from Greenlake in Seattle." From this, we are supposed

to devise the huge conspiracy how everybody is lying;
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2634

everybody is framing poor Briana Waters, from that simple

choice.

They didn't throw away their notes. They didn't try to

doctor anything; they turned everything over. They made

choices. From that, they are trying to build a mountain out

of a mole hill.

There's an old adage that's heard around courthouses: If

you have the facts on your side, you pound the facts. If you

have the law on your side, you pound the law. If you have

neither, you pound the table.

I suggest that all of the cross-examination, all the

innuendo about all of the horrible things that these FBI

agents did with regard to this initial interview is just that:

Pounding the table. No one tried to insert that Jennifer

Kolar identified Briana Waters on that first day. No one

threw away their notes. Agents work hard. They made the best

choices they felt and went forward with an investigation.

The February 4th interview of Ms. Kolar, when they are

driving down to Tacoma, you heard a big to-do about that. In

Special Agent Halla's notes he says, "don't remember Briana

and Lacey being together," and 302 says, "Kolar did not recall

Briana and Lacey being close friends."

Once again, you hear the big conspiracy; everybody is

framing Briana Waters. It's ridiculous.

First of all, what difference does it make? Kolar has
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2635

never said Lacey Phillabaum was at the University of

Washington arson. So to make the argument that somehow saying

that she never remembered them together proves that Briana

Waters wasn't at the University of Washington is ridiculous;

it doesn't make any sense. She's never remembered her being

at the University of Washington arson.

I want to remind you of something that struck me the first

week. Remember Dan Priest? He was the Lieutenant from the

Seattle Fire Department, in all honesty, kind of a throw-away

witness. He came in and talked about he was the first

responder to the scene. Do you remember the guy? He was a

Lieutenant at the first fire house. Do you remember this

series of questions and answers:

"Question: Your information is that the mechanism

went off at 3:22 a.m.; is that correct?

"Answer: That's when we were dispatched.

"Question: You say dispatched. That was your unit.

Was that your unit?

"Answer: Engine 38.

"Question: Do you know someone named Butler, first

initial E?

"Answer: That doesn't ring a bell.

"Question: Do you remember the University of

Washington Police Department, being interviewed yourself on

the 26th of June of 2001, by the University of Washington
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2636

Police Department, by someone named E. Butler of the

University of Washington Police Department?

"Answer: It doesn't stick in my brain, but it could

have happened.

"Question: If you don't remember the name, do you

actually remember the interview?

"Answer: No.

"Question: Do you remember telling anyone on June

26, 2001, any official at the University of Washington that at

approximately 4:15 in the morning, Station 38 responded to an

automatic fire alarm at the University of Washington Center

for Urban Horticulture? 4:15 a.m. Do you remember telling

anybody that?

"Answer: No, I don't.

"Question: May this be shown to the witness, please?

I am going to ask if this refreshes his memory."

"Is there anything on that he might have done? There's

one paragraph that says he doesn't remember. I withdraw my

objection. Thank you. May it be marked for identification?

Could we start a different series, D.-1?

"Question: Having read that, does that refresh your

recollection as to whether or not you were interviewed by

somebody from the Police Department?

"Answer: I don't know. I don't recall the

interview.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2637

"Question: Do you remember having any interviews,

whether that date or any other date, and telling somebody,

'tell us what happened, give us your best memory'?

"Answer: That makes sense. The University of

Washington would conduct such an interview, but I don't recall

it happening.

"Question: Do you remember telling anyone from the

University of Washington that you responded at 4:15 in the

morning?

"Answer: If I said 4:15 in the morning, it was

probably an approximation.

"Question: We are talking about an alarm at 3:22.

We are talking about almost an hour later that it appears you

told someone you responded. Does that refresh your

recollection as to what happened with regard to your response

or what was said to the University police with regard to your

response?

"Answer: No, I think your --"

What is going on here? We all know when they responded.

There are call records on when calls have gone out, when they

respond to go back in. What's going on? What, is this part

of the big conspiracy? Poor Dan Priest who gets blind-sided

coming in here, that oh, you said 4:15 in the morning, so you

are lying.

Another part of the defense case, Phillabaum's alleged
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2638

affair with Justin Solondz. It was almost two weeks ago, but

do you remember when that first came up, what Ms. Phillabaum's

response to it was? She kind of laughed, like are you

serious?

Conveniently, the one witness who could confirm or deny

this is Justin Solondz, and he's a fugitive; he's out of the

country.

You've heard testimony that allegedly there was a party at

Ocean's house, that's over the summer, and that's when she saw

Ms. Phillabaum, and that's when there's a confrontation. This

Defendant has no burden to bring anybody in to testify, but in

your mind, I assume many people would have thought this was a

party at her friend's house with her friends. Other people

would come in and testify and tell us that yes, this all

happened.

She has no burden, but she clearly could have brought in

other witnesses to tell us about all these things. In fact,

in her own description, there's never a huge confrontation

that you are kind of expecting in a public setting, where she

and Ms. Phillabaum really get into it, the kind of venomous

anger that would make someone frame an innocent person for a

very serious crime. Her story is ridiculous.

It is a grasp at straws from someone who is unable to

accept responsibility for her own actions, so therefore she

will pattern her story and change it to fit whatever slim hope
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2639

she feels she can force upon you.

The Kolar spurned lesbian lover defense, that somehow this

one e-mail that we get in 1999, with Ms. Kolar mentioning in

passing that she found a woman attractive at a party somehow

leads us to believe that Ms. Kolar, despite her friendship

with this Defendant, is framing her because she's really

bitter because they are not lovers, even though Ms. Kolar has

had platonic relationships with men; and, in fact, described

to you in detail that she's been with her present partner for

over seven years; and, in fact, it was her love for her

present partner that got her out of the movement. He wasn't

in the movement, she loved him and so therefore she felt she

had to get out of the movement.

Their big smoking gun, the Ralph's Thriftway record. I

told you already, I wish I would have seen those before

because it's exactly when she should have been at Ralph's

Thriftway: 7:12 p.m. on May 20th, on their way out, three

blocks from Mr. Rodgers' house, on their way up. It doesn't

get dark until 9:24 that night. You heard that today.

The arson -- the fire isn't called into the police until

3:10 -- a little after 3:10. We somehow think this is an

alibi that she's in Olympia at 7:00?

Are there discrepancies that you will be able to hear

about? We know about them. There are discrepancies in the

Government's story. You heard that -- are the devices in the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2640

trunk, or are they left behind at the dumpster? Does

Mr. Solondz go down to the Center for Urban Horticulture and

go behind the building, or does he remain in the car? Does

the car, in fact, get into a small accident and engage in a

little scratch?

These are the types of discrepancies that tell you people

are remembering things differently and doing the best they can

without talking to each other, without looking at other

reports to remember what happened.

You heard from a fair number of character witnesses on

behalf of the Defendant. Actually, I think they are

important. I am not going to denigrate them at all, but I

would ask you to do this. Imagine if Jennifer Kolar was on

trial. Can you imagine all the people that would come in from

Jennifer Kolar's work and talk about the great things -- she's

just a workaholic within the .com industry, and her diving

friends, and the people from her sailing club?

She would have people to come in and say equally great

things about her. Lacey Phillabaum. She was a journalist for

a long time, and actually clearly a spokesperson because you

heard from their own witnesses that they went to some activist

meetings and Lacey Phillabaum was a facilitator at this.

Really, clearly a level higher than this woman, and Lacey

Phillabaum told you about it. It was a slow process. I

didn't do an arson right out of the blocks. I was involved in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2641

above-ground activities. I wrote articles, and I just kind of

morphed into it. You heard from Lacey Phillabaum how this

happened.

The Defendant wants you to believe that she is the

unluckiest person in the world. Actually, the unluckiest

person in the history of the world, really. Make no mistake

about it, when you go back there to deliberate, when you talk

about Jennifer Kolar and Lacey Phillabaum and everybody else,

they all have motives to lie, but who has the greatest motive

to lie? This Defendant.

I would suggest to you that you try not to appeal to your

emotions. She has a child, and we can all relate to that, but

I don't think you have to hear about the child in virtually

every answer that came out of her mouth. Why did she say that

to you? What she really wants you to do is to avoid and

ignore the Court's ruling that you must base your decision on

the evidence, and instead base it on your emotion. But you

all took a vow, a pledge, that you would not do that, and I

know you won't.

She's telling the truth, and everybody else is lying. Not

only is she telling the truth and everyone else is lying, but

every other piece of physical evidence is lying. Her lies

tell you she's guilty. She can't come up with a better story

than this. She wants you to believe: "I don't think I ever

said anything to the New York Times." "Those really aren't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2642

the articles I sent to Jennifer Kolar."

Now, I think there was a different car that Robert Corrina

is confused about and a different emergency room visit.

Every Defendant has a right to trial. They have a right

to be represented by counsel. They have a right to have their

evidence presented by a jury of their peers such as yourself,

to have it presented by an impartial Judge. Society also has

certain rights. The public is entitled to have people who

commit serious violent crimes be held accountable. When

evidence is presented that proves a Defendant's guilt beyond a

reasonable doubt, the public has a right to a verdict of

guilty.

The victims of these crimes -- and you heard from a few of

them: Sarah Reichard, Toby Bradshaw, Don Rice from Jefferson

Poplar -- these victims and all the victims we didn't call

that have been impacted by this case deserve to know that

people who commit such horrible crimes, that devastated their

lives, will be required to face the consequences of their

actions.

Lacey Phillabaum and Jennifer Kolar made difficult

decisions to plead guilty and cooperate, a choice that cost

them many, many of their friends and will leave them to be

serving several years in jail.

The Defendant is hoping that if she mentions her daughter

enough and Watch Mountain enough, that you will take pity on
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2643

her and ignore what she chose to undertake back in 2001; that

you will choose to ignore the testimony from the witness stand

and the exhibits that have been entered into evidence.

Ladies and gentlemen, we are a nation of laws, not

individuals. Everyone that comes into court, whether they are

nice and sympathetic or horrible and despicable, deserve a

fair trial and deserve to be treated the same. Everyone

should be treated the same: No better, no worse.

It is time for this Defendant to be held accountable, for

her to finally face reality and admit and accept

responsibility for what has happened. I ask you to find this

Defendant guilty of all charges. Thank you.

THE COURT: All right. Before we hear from the

defense, we are going to take the afternoon recess. Don't

discuss the case. You haven't gotten it for that purpose.

Just take advantage of the recess and have your books on the

chair, and I will have you back in here shortly.

(Jury not present.)

THE COURT: All right. You may be seated. We'll

take the afternoon recess.

THE CLERK: All rise. Court is in recess.

(Afternoon recess.)

(Jury not present.)

THE COURT: You may be seated. Bring them in.

(Jury present.)
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2644

THE COURT: All right. You may be seated.

You heard from the Government, their closing, now you will

hear from the defense.

MR. BLOOM: Good afternoon. Thank you for your

attention.

More than that, thank you for undertaking -- it really is

one of the great responsibilities that citizens can undertake

on behalf of justice. That's what we are looking for here, is

justice. This woman is innocent. She didn't do this. The

evidence that's been presented to you is not credible

evidence.

We will show -- we will absolutely show that it is lies,

and you cannot convict a person of any crime, much less a

serious crime, based on lies. It's just not right. It's not

fair. It's not within the Constitution, and it's not moral.

I want to say one thing first. If for any reason any of

my conduct or, less so, Mr. Fox's -- if you thought I was too

aggressive or anything that troubles you, firstly I apologize,

and secondly, please, whatever you do, don't take it out on

Briana Waters. I don't think I have done anything. I have

tried not to, but if that's the case, I ask you to please look

past me and look at Briana Waters.

Needless to say, what this is about is the Government's

evidence is on trial. That's what the burden of proof means.

They have to come forward with credible evidence to prove to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2645

meet their burden beyond a reasonable doubt, and I agree with

Mr. Bartlett. This case is about one thing. It is about

whether or not there is credible evidence from credible

witnesses beyond a reasonable doubt that Briana Waters was

involved in the University of Washington arson, not the Cavel

West arson, not any other arson. That is the incident which

she's accused of participating in.

It's not about sympathy. We can agree on that. We are

not asking you to find Ms. Waters not guilty because of

sympathy. She told you the truth. She told you the truth

about her family situation, and we told you the truth about

her character.

This case is very much about character. Ms. Waters'

character on the one hand -- and you've heard maybe 10 or 12

witnesses talk about who she is, who she was, and, indeed, who

she will always be. You have seen before you Lacey

Phillabaum, you've seen Jennifer Kolar and you've seen Robert

Corrina and, of course, I will be talking about each of them.

It's simple. To begin with, she is not a person who would

in any way be involved in a crime like this. She just isn't.

Those people that you heard, who know her, who've known her so

well, they wouldn't be here. The Assistant Attorney General

of the State of Washington, do you think he would be here if

he thought there were any possibility that she committed this

crime?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2646

Now, I have, of course, an outline for what I want to say,

and perhaps I shouldn't be tempted into it, but there's

certain things that Mr. Bartlett has said to you that I really

feel I need to address right up front before I go into what it

is I had planned to say.

One of the things he was talking about came up more than

once, but toward the end of his presentation, and it had to do

with how pleased they were if only they had had the Ralph's

Thriftway records at some earlier time, that would have been

helpful to them. That is what you call nonsense.

If you believe, or if they want you to believe Lacey

Phillabaum, Lacey Phillabaum had people arriving in Seattle,

the people herself and the people who were supposedly with

her, in the early evening. Jennifer Kolar said that they met

at the restaurant at 8:00, maybe 9:00.

Now, one of the important things about that event, the

so-called trip from Olympia to Seattle -- and it was reflected

in the last witness this morning, Agent Ford -- they went from

the Ralph's Thriftway to Seattle. I don't think it would be a

lot of time between Ralph's Thriftway and Conger Avenue --

maybe five minutes, maybe 10 minutes -- but the whole idea is

a distortion.

This isn't about going from Rodgers' house. All the

action, if you believe Lacey Phillabaum, supposedly took place

at Conger Avenue. That's where supposedly the devices were
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2647

made. That's where supposedly there was a clean room. So the

trip wouldn't have been from Thriftway, and it wouldn't have

been from Rodgers' house. It would have been from Conger

Avenue. So I don't quite understand what it is they are

trying to say.

It's a good thing for Briana Waters, for their purposes,

that Briana Waters was in Olympia at 12 minutes after 7:00 on

Sunday, May 20th? That's not true. That's not a good thing

for them. It proves that she could not have been in Seattle

at the time they say she was in Seattle. It's as plain as

that. It's just not possible.

Even with no traffic -- I am talking about Agent Ford who

testified today -- even with no traffic, it took him 68

minutes. And Mr. Fox asked some questions -- it turns out

that Mr. Fox in his research found there was actual

construction on I-5 on that day and at times it was a one-lane

road.

Now, people, you all live in the area here, in the

corridor. You know what happens to I-5 when it's a one-lane

road. It's not 68 minutes. It's maybe an hour and 68

minutes.

Then, of course, Mr. Bartlett and Mr. Friedman didn't ask

Agent Ford to go to the location where they want you to

believe that the equipment was dropped off, at a dumpster

somewhere near the Center for Urban Horticulture. Well, if
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2648

you take that detour, that takes another at least 10 minutes,

maybe 15 minutes, maybe 30 minutes, maybe 40 minutes, to

surreptitiously drop off some equipment before they go to meet

Jennifer Kolar.

So we are talking about -- and if you follow Mr. Rodgers'

and Mr. Meyerhoff's manual, you want to get there in plenty of

time, you want to relax, you want to chill out, you want to

get yourself together, you want to be there long before, you

don't want to leave at the last minute. You want to leave --

and apparently, if Phillabaum is right, they did leave at

maybe 5:00 or 5:30.

Well, if they left at 5:00 or 5:30 or 6:00 or even 6:30,

Briana Waters could not have been with them, could not have

been with them because she was at Ralph's Thriftway at 12

minutes after 7:00. It's critical. It's really important.

It's objective evidence, not subject to anybody's whims, not

subject to anything. She was there at 12 minutes after 7:00

on that Sunday night. We know she was there because we found

the records.

With regard to that, when Ms. Waters testified, you heard

her say -- I asked: Once you saw those records, aside from

feeling very good about it, did that help her remember that

she was in fact at Ralph's Thriftway? Well, she said no; she

told the truth.

Here's the key fact. Unlike Lacey Phillabaum, who burned
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2649

down this building, the Center for Urban Horticulture, unlike

Jennifer Kolar who burned that down, plus three other arsons I

am going to talk about, Ms. Waters doesn't have a reference

point. She doesn't have a way to remember where she was on

the 28th and 21st of May of 2001, and she didn't make one up.

She came here and she told you, "I don't remember where I

was. I must have been asleep somewhere because that's all I

can remember." This was four-and-a-half years -- Agent Halla

came to see her in February of 2006 -- four-and-a-half years

after the incident.

Now, I challenged myself, and in a general way I challenge

each of you, to think about if I came to you today and I said

to you, where were you four-and-a-half years ago on a

particular night, unless you had somebody's birthday or

something on a calendar or some noteworthy event, I suggest to

you there's just no way you could possibly, in an honest,

reasonable way, say oh, yes, I was here, here or here. She

doesn't have that.

She doesn't have the reference point that these two

criminals -- and I say criminals; they have pleaded guilty to

this felony. They have said, "I thought about it. I

participated in the planning, in the carrying out of the

arson, burning down this building."

These are two criminals who have come here and testified,

each of whom -- one of whom is facing a mere 35 years
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2650

mandatory minimum -- that would be Lacey Phillabaum; and the

other who was facing a mandatory life sentence, Jennifer

Kolar, doing very well for herself, a woman with a yacht, a

woman who was, I have to say it, a serial criminal, a woman

without a moral compass, a woman who just went on and on and

committed at least four arsons, four times.

She was involved in preparing, mixing fuel, putting

together devices, planting devices, going to get gasoline,

intending to burn down buildings. That's the woman that they

have put before you that they want you to believe. I will

spend some time specifically about some of the things that she

has done and she has said, and the facts that she has put

forth, as she calls them.

You are not going to see a lot of high-tech stuff from us.

We are going to use the overhead projectors, to the extent we

need to.

The story that Mr. Bartlett has told you, the propositions

he puts before you as facts, they are facts and they come --

except for the documentary facts -- but the facts that are

critical come from the mouths of Lacey Phillabaum, Robert

Corrina and Jennifer Kolar. Every count in this Indictment,

every count depends upon the one fact, as I have said and

Mr. Bartlett said: Did Ms. Waters participate in this

criminal act?

That's the question, and the answer comes from an
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2651

analysis, a weighing -- as in every criminal case, not a

balancing who is right, is this right. A balancing is not

what you do in a criminal case. What you do is you look at

the evidence that's presented by the prosecution and you weigh

it. It, in fact, is what's on trial.

The Government's evidence is on trial, and it's up to you

to decide: Is this evidence I am comfortable with? If I had

somebody who I knew, who I cared about, who I loved, was on

trial and this was the evidence, would I be happy with this?

Would I say this is okay to convict my friend or my partner or

my relative, based on this kind of evidence? That's what you

are asked to do. That's what you are called on to do.

It's obviously a very serious responsibility. You know

what the stakes are. Judge Burgess, during jury selection,

said something that I would like to adopt. He said, in

picking the jury -- he asked each of you in some way or

collectively: "Do you feel you can start from neutral?" I

think that's a very good concept, a very good way to begin

your work and your evaluation.

One of the things you have to do is step back and look at

and consider this entire apparatus. We have the Judge, staff,

prosecutors, defendant, defense counsel, an audience,

choreographed, obviously, by Ms. Waters. She dictates who

comes to court. Come on, grasping at straws, Mr. Bartlett;

Ms. Waters doesn't dictate who comes to court.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2652

That's not my point. My point is, this whole apparatus is

here, and you think and you feel there must be something here.

This couldn't be happening unless there was something to the

charges.

Well, starting in neutral means that you have to put that

out of your head. You have to take each of the pieces of

evidence both, individually and collectively, and think about

them and consider them. Consider if this person, Lacey

Phillabaum, were a person sitting in front of you, across the

table from you, just the two of you, telling you the things

that she's said here, would you want to rely on the word of

that person? I will go into the specifics of her. That's

where we are at. The same with Kolar and the same with

Corrina.

So let's start in neutral. Let's talk about the facts.

Before we talk about the witnesses who have been here, I would

like to talk about the one witness who was mentioned by

Mr. Bartlett who is not here, and that's Stan Meyerhoff. He

could be here if they wanted him here because he's a person

who, when he was arrested on December 7th, a little over two

years ago, he agreed pretty quickly that he was going to be a

cooperating witness, and he started giving names of people who

were involved in the many, many arsons that he was involved

in.

He was one of the central figures in these arsons. He, as
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2653

you've heard, pleaded guilty in the Oregon case and his

sentence was the highest sentence of all the people who

pleaded guilty. He's the fellow who knew he was involved in

the planning of what's been called the double whammy, the

University of Washington arson and the arson of the Jefferson

Poplar Farm in Oregon.

He is a really knowledgeable person about who was involved

in these arsons. He was naming people. He had no reluctance

to name people. He was naming everybody he could in order to

help himself. One of the people he named -- he went so far as

to name his girlfriend, Lacey Phillabaum, to become his

fiance. He named her, he said she was involved, she was

involved in the planning of the double whammy.

There came a time -- and he was not reluctant to name

anybody. In fact, it helped him to name people. The more

people he named, the more it could be said by his attorney and

by him to the prosecutor in Oregon and to anyone, that I am

cooperating, I am doing my best, here's a name, here's a

person who was involved, here are the details.

In fact, there came a time on St. Patrick's Day 2006, just

under two years ago, when he was shown a photograph by ATF

Agent Comery, and it was a picture of Briana Waters, and he

looked at the picture of Briana Waters, having said whatever

he said before, and I will go back to that -- having said

something about a blonde woman who originally was from
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2654

California, not Ms. Waters.

He looked at that picture and he said to Agent Comery,

"That woman looks familiar to me, but she was not involved in

any of the arson activities that I was involved in or that I

know about." He said that. He said it. Where is he? Why

don't they call him?

It is their burden of proof to call -- to prove beyond a

reasonable doubt and to call the witnesses. That witness is

available to them to call. Wherever he is in prison, he could

be brought here by the prosecution to get up on the witness

stand and say, I didn't say that, I didn't mean that, I didn't

have my glasses on, I am protecting her, whatever else it is.

They didn't call him, and please understand that one of

the instructions that you have before you is that your verdict

has to be based on both the evidence and/or the lack of

evidence. What is there to say about looking at that

photograph and saying that woman was not involved? What more

powerful evidence could you have, than the man in the middle

of this conspiracy saying no, she was not involved?

If there were nothing else in this case, if we presented

nothing else to you, that would be enough, in my humble

opinion, to say I have a reasonable doubt. Mr. Meyerhoff, he

knows. He knows who did this. He knows who didn't do it.

That's a reasonable doubt. You don't have to listen to

Jennifer Kolar, who doesn't even identify who was at the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2655

arson, her partner, her crime partner, Lacey Phillabaum.

What is so odd, a little odd, Mr. Bartlett, would have you

say. It's more than a little odd; it's astonishing. This is

not a woman of limited intelligence, Jennifer Kolar. She's

probably the smartest person in the room, or one of them

anyway, and she said that she doesn't remember any role for

Lacey Phillabaum in that arson?

There's something fishy there. It's not just fishy. That

is a lie. What Mr. Bartlett presented to you was a scenario

that depends upon the credibility of their witnesses, so when

he says that this happened -- this happened and this

happened -- it happened or didn't happen, depending upon

whether or not the person who reported it was telling the

truth.

That's what is critical here. It's not a fact because

Mr. Bartlett or Mr. Friedman or I or anybody else say it's

true or not true. It comes from the witness stand. It's for

you to evaluate whether or not this has the ring of truth.

For a moment, let's talk about -- before we do talk about

the witnesses who did testify, I want to talk about some other

witnesses who were not called by the prosecution to assist

them in meeting their burden of proof. I repeat -- forgive me

if I repeat -- not only is the burden of proof on them, but it

always stays on them. We don't have to prove innocence. We

think we have, but we are not asking you to make that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2656

determination. We are not saying innocent, guilty.

We are saying what a jury does in this country, not just

in this courtroom -- in every criminal case in every state and

every federal court in this country, the burden is always on

the prosecution to come forward with evidence that's credible

to prove guilt. Always.

So who else did they not call? They did not call Chelsea

Gerlach. They asked Ms. Waters, "Did you know her," the

inference -- the implication being well, if you knew her and

then a whole list of other people, then you must be guilty;

you must be involved in this conspiracy.

Well, that's not the way it works. Let them call Chelsea

Gerlach to say I knew her and she was involved in this or

involved in that. Well, they didn't call her because she

wasn't. That is, Ms. Waters wasn't involved with any kind of

criminal activity with Chelsea Gerlach.

They didn't call a man named Tubbs for the same reason.

Both Gerlach and Tubbs have pleaded guilty in the Oregon case.

They didn't call either one of them. A guy named Thurston

also pleaded guilty in the Oregon case. They didn't call him.

Suzanne Savoie -- they didn't call her. She's also pleaded

guilty in the Oregon case.

Jake Ferguson, the original first person to cooperate who

has pleaded guilty and has been sentenced to probation -- they

didn't call him to say "Ms. Waters -- I knew her, she was
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2657

involved in one crime or another, one event or another." Of

course they didn't, because she wasn't. She was not involved.

That's clear. We know -- I am not telling you something that

is not easy to figure out -- they would have called each of

these people if there would have been criminal activity.

They would have; they had to, because she's accused,

Ms. Waters is, not just of this act but of being involved in

the conspiracy. You have to understand, not to get ahead of

myself, but there were five meetings that are called book club

meetings or incubator meetings, where the participants, the

actual co-conspirators, had meetings. They talked about their

strategy, their planning, their tactics.

Jennifer Kolar was there. Lacey Phillabaum was there.

They all have aliases. Ms. Waters was not at a single such

meeting, none. She doesn't have an alias. She's either

Briana or Bri. She was not involved in this. But they list,

I think among the last questions that was asked by

Mr. Bartlett when Ms. Waters took the stand -- he went through

a list of people. "Do you know this one, do you know this

one, do you know this one," suggesting -- wanting to trick

you, if I may say, into thinking that if she knows these

people, she must be involved in the conspiracy. That's just

not a fact. It's not true and it's not fair.

Who else did they not call? Well, they didn't call Kenny

Clark, the friend of Jennifer Kolar who was a go-between, at
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2658

least for messages between Ms. Kolar and Joseph Dibee -- one

of her -- her real crime partner with whom she committed

several arsons. They didn't call him.

They didn't call Corrina's wife, Kara Larson, to tell

us -- remember, there was an issue that I will go back to, and

this is kind of a critical issue. Mr. Corrina's position was

that he was waiting at home for Ms. Waters to return with the

car that he says -- the rental car that he rented -- they

rented -- that would be himself and his wife -- to bring back

the car so that it could be returned.

He was waiting at home to do that. Well, not that it was

great detective work, but he had said in the beginning of

cross-examination that he had a job, and he named the place

where he had the job. I asked him, "Is that a Monday to

Friday, 9:00 to 5:00 job?" And he said yes.

It turns out that the timing -- he's actually proven -- he

has proven that Ms. Waters could not have been involved in

this, and more particularly, that the car that was a rental

car could not have been involved in this incident.

How does that happen? Because if he's waiting at home for

the car, it could not have been on Monday, the 21st. It had to

be on Sunday, the 20th, because then he would have been home.

But as we learned, his wife had used that car to take him to

work one day. The only day that could have been was Monday,

the 21st. So he was at work; he was not at home.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2659

When I questioned him about that, that was some days ago,

you can believe that they went to his job -- I forget the name

of the corporation or the company -- you can believe that that

night or the following morning they went to his job and they

said, "We need to know if Rob Corrina was at work on May 21,

2001."

You can believe that if they had any evidence at all that

he was not at work that day, we would have seen that witness

on the witness stand. You see how thorough they are. They

have got every piece of data on everybody: Briana's mother,

her grandmother, her friends, everybody. They leave no stone

unturned. You've seen data until your eyes glaze over. I

know I have.

Who else did they not call? They didn't call a fellow

named Spencer Moen. Who is Spencer Moen? He was the

so-called punk boyfriend of Capitol Hill Girl. He's around.

He's available. They didn't call him. Where is he?

How do they meet their burden? They have to meet their

burden of proof by coming forward with credible evidence.

It's their burden of proof.

Who else did they not call? A New York Times reporter

named David Carr. You may recall when Lacey Phillabaum

testified, I was able to show her a report of our investigator

where David Carr said to our investigator, "Lacey Phillabaum

told me that she didn't tell the Feds anything they didn't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2660

already know." Well, if that didn't happen, David Carr would

have been here, called by the prosecution, to testify: "No,

she never said that to me, and I never said that to

Ms. Waters' investigator."

So they didn't call him -- David Carr. That's another

witness. That's maybe eight, nine witnesses now. Who else

didn't they call? They didn't call anybody from the

celebrated FBI laboratory in Washington to come and tell you,

"We looked at this car -- this rental car; we got a search

warrant -- or the fellow who owns it in Wisconsin now -- this

particular car -- agreed to let us analyze it, we looked at

it, there was depression damage to prove that there had been

an accident on the left quarter panel or the left rear or the

left fender, or whatever part of that car Lacey Phillabaum

says was damaged."

I am not saying that Lacey Phillabaum is wrong about there

being an accident. On the contrary. I think as to that,

she's credible. There was an accident. But to show -- they

could have shown, had they just taken it to the lab -- they

could have shown Lacey Phillabaum was right; this is the car.

Whatever the vehicle that was used, whether it was a car or,

as Jennifer Kolar first said, maybe a van -- whatever the

vehicle was that was used, it was not the car that was rented

by Rob Corrina and his partner Kara Larson.

They could have proven that it was -- just send the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2661

quarter panel or part of the car, or you do something to get

that investigated by the FBI lab which, as you can imagine and

to which there's been testimony, is very capable of performing

that kind of test. You would know, you would absolutely know

that that car, that rental car, was used in this incident,

because it would confirm what Lacey Phillabaum said, but they

didn't do that because they knew it was not that car. It was

some other car.

Lacey Phillabaum made a big fuss, "Well, we have to get a

rental car for these kinds of actions; you have to get a car

that's not associated with any of the people who were involved

in the incident." That's false. That's a lie. I think we

cited maybe seven or eight different instances where at some

of these activities, some of which were arsons, one of which

was a crop pull and one of which was what she called a

girdling operation, that they took -- those people who

participated in it, not Ms. Waters; she was not involved in a

single incident, nothing, not a crop pull, nothing -- but the

people who were, they used their own cars.

Joe Dibee took his car to Susanville. Stan Meyerhoff took

his car to Susanville. Kolar took her car to the Wray Gun

Club in Colorado. So the tale that Ms. Phillabaum tells in

order to conflate or suggest that you have to get, let's call

it an outside car, rental, borrow, whatever it is -- that's

just false. That's just not true.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2662

So there are all these people they didn't call. They have

Count 1, this conspiracy count, and I don't know if you are

going to see the Indictment or not, but there are 25 what they

call overt acts which are listed in that Indictment. One

would be the Cavel arson. Another would be the Susanville

arson, and another would be the Center for Urban Horticulture,

the University of Washington arson.

There were 25 overt acts. Ms. Waters is named in one

overt act. She's alleged to have participated in the

University of Washington arson. Everything is in there, and

you may recall the first witnesses after the arson

investigators -- I am sorry, the firefighters -- they talked

about all those other acts, with no mention of Ms. Waters.

Just to lay it on you, this is a serious crowd and they burn

down a lot of things, and indeed they did. Lacey Phillabaum

was one of them, and Jennifer Kolar was another.

While I am on the first witness, it is true that I got

this document and it said the first response was at 4:15. I

asked firefighter Priest about it. He didn't remember it. I

think the following day or the next witness was another

firefighter, and we became convinced that it was just a typo,

so it never got pursued.

To suggest that -- remember, this is the first witness,

and we see a document that shows a serious discrepancy that

the response wasn't at 3:23, it was almost an hour later. I
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2663

chose to ask a question about it. I didn't scream at witness

Priest. I just said, "Does this ring a bell," and he said

"No," and we dropped it. We learned later that it was

probably a typo.

I am not quite sure what the point was about -- do we go

after and say everyone is a liar? No, we are not saying that

everyone is a liar. We are saying where the evidence supports

it, certain people did not tell the truth.

I will go back to Lacey Phillabaum for a moment. It took

forever for us to get out of her that she indeed had told the

FBI, the Feds, what they already knew. I am going to get back

to it in a little while but -- maybe I should read it now.

Reading from page 146 of her testimony, the second day's

testimony, I asked her:

"Question: That's what you meant, that nobody is

going to prison because of you?"

Then she answered:

"Answer: I didn't think I had given any names that

the federal authorities did not already know."

She denied it four or five times before she finally came

out with it. Now, how did she know what they already knew?

How did she have any information about what they already knew?

We've heard from Mr. Corrina. We've heard that his wife Kara

Larson told him that on January 19th of '07, when Agent Halla

and Mr. Friedman entered her place of employment -- she worked
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2664

for an agency of the State of Washington, I believe, a place

where Mr. Friedman yelled at her.

One thing that Agent Halla did -- and I am not saying he

did it maliciously, and I have no idea if he did it

intentionally -- what's clear is that he did tell her, "We

believe that the car you rented was used in an arson at the

University of Washington."

A questioner -- common sense tells you that a questioner

is not supposed to give information to the person being

questioned because it's leading; it's being suggestive.

We know that they did the same kind of thing when they

went and got Joe Dibee. They came and talked to him, and they

gave him information. Unfortunately, it's the way they

sometimes work, and they shouldn't do that, but once you do

it, then the person has information, and if the person wants

to, quote, tell them what they already know, he or she -- in

this case, Lacey Phillabaum -- has a clue about what they

already know.

How did that happen? Frankly, I was thinking this week,

if I am going to give a closing argument, what happened here?

Something struck me as I read the Lacey Phillabaum transcript.

She talked about how she told her parents about what was

happening, and she jumped on it and she said my parents, you

know, my lawyers -- I spoke to them as my lawyers.

What is that about? I thought, that's a little bizarre.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2665

I thought maybe it was just kind of a personality quirk.

That's very important, because here's the way they did it.

Here's how she figured out what they already knew and what it

is she should be saying to them. It's really important,

because an important part of their argument is "I have Kolar

saying it" and "we have, independently, Lacey Phillabaum

saying Briana Waters was involved." Well, it wasn't

independently at all.

Lacey Phillabaum told them what she believed they already

knew. How did she know that? Because innocently -- I am not

saying her father did anything wrong. On the contrary, I

think her father did -- when he was contacted by the FBI,

obviously the FBI told him some things, and he, as a father

and a lawyer and a person who loved his daughter, was sharing

information with her. That's how she figured out what they

already knew, because that's how the information got to her.

You know what? We can't call him as a witness because

he's her lawyer, the father is her lawyer, and he would get up

there and say "lawyer-client privilege; I am not going to

testify." That was what the fuss was about. That's why she

said, "Yes, not just my father, but he's my lawyer, as is my

mother; they are my lawyers." That's what that is about. So

that he can't tell you, "The FBI gave me the information and I

passed it on to her."

That's how she knew what to say to help herself, because
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2666

what do they want? They want it to be consistent with the

other information they have. If you look at the timing --

speaking of timing, supposedly Jennifer Kolar -- and it's

probably true -- two weeks after she first spoke to Mr.

Friedman and the agents, December 16th, the day we'll spend

some time with, she says that apparently she contacted her

lawyer, Mr. Martin, and she said the person who was the

lookout, I just remembered, with my little feeble mind -- I

just remembered that it was Briana Waters.

Well, of course, I am being sarcastic when I say feeble

mind. She had quite the opposite of a feeble mind. She knew

very well and she knows very well what she is doing. She's

also a sociopath, a person who has committed four arsons.

She's walking the streets now. She will be sentenced sometime

after this trial. They are holding it over both their heads.

They are not getting sentenced until after this trial because

they don't want them to go sideways on them.

But Jennifer Kolar is on the street now. She's out there.

She's a four-time arsonist. She is going to get probably

seven years, maybe five years, depending upon what Judge

Burgess decides to do.

This woman tells her lawyer at the end of December of 2005

that Briana Waters was involved in this case; she was the

lookout. On January 5th, a few days later, her lawyer, Mr.

Martin, tells Mr. Friedman of that conversation. The very
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2667

next day, there's a scheduled meeting with her -- an interview

with her, January 6th. They do not ask her a single question

about Briana Waters being the lookout.

What kind of police work is that? That's not logical.

Common sense tells you that if they believed that was true,

they would say: "Ms. Kolar, your lawyer told us yesterday

that you remember that Briana Waters was involved as the

lookout."

Common seasons tells you that. But they made a choice, an

intentional choice, not to ask her. They didn't ask her on

January 6th. They didn't ask her the next time on January

12th, January 13th, I think January 27th, a couple times in

February, and they don't ask her about it until after Lacey

Phillabaum has come in and told the FBI what she believed they

already know.

What's the significance of that? Why would they not ask

Jennifer Kolar? Well, they know that on December 16th she

gave -- and even Agent Halla said so -- she gave five names:

herself and four other people. In fact, she confirmed that --

something Mr. Bartlett failed to tell you in his closing

argument this afternoon -- she confirmed that she gave those

names as the participants in the crime in October of last

year.

She spoke to Mr. Bartlett and he asked her: "Do you

remember what happened in that first interview, December 16th,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2668

with regard to these names, these particular names, Capitol

Hill Girl, Boyfriend, Crazy Dan, Avalon and herself?"

Remember, no Briana Waters. Very important, the first time

she did not remember Briana Waters.

What happened? She told Mr. Bartlett, "Yes, I've

identified those people, myself and those four other people,

as the participants." Mr. Bartlett chose not to tell you that

this afternoon.

Mr. Bartlett put on the screen for you Agent Torres' notes

from the interview on December 16th and talked about -- yes,

one, two, three, four, five. Before you look at what's on the

screen, I would ask that you consider what does that mean when

Agent Torres sat there -- she gave names; he puts the numbers

one, two, three, four, five next to them. Is there any doubt

that you are being deceived when you are told that it was

anything other than those five participants? That's what she

said. That document is in evidence, and I ask you to look at

it.

Now, look at the page before that's on the screen. I have

talked about this, and I just want to point it out. When the

agents and Mr. Friedman were interviewing Jennifer Kolar about

a different crime -- this is just one page before the

University of Washington -- they were interviewing her about

Susanville, and it says Susanville, and she listed the names

of the people that she remembered were present at the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2669

Susanville crime.

Where she did not remember, where she was not sure, she

said to them, "I'm not sure." That's why Agent Torres, of

course, wrote "not sure" next to three of the people. There's

no getting around that. They are fooling you if they tell you

otherwise. It's not true. She said about Susanville --

where's she's not sure, she's not sure, but when it came to

the next event, the University of Washington, there's no "not

sure"; she was sure. She gave them the five participants, and

in August of last year, she reaffirmed that to Mr. Bartlett.

I want to talk some more about Jennifer Kolar. I don't

mean to be harsh, and I feel bad that she's going to prison.

She was a dedicated person, involved in the environment.

Frankly, she went bad. She committed four arsons. At first

she told them she committed three, and then she remembered the

fourth.

This is a person with a criminal mind, as I said earlier,

a person without a moral compass, a person who really, really

doesn't care for anything but herself. She is a woman of some

means, she has a yacht -- or she just sold it apparently --

and she is a woman who does well at her work. She was

involved in planning four arsons. She was involved in

executing four arsons. She mixed fuel. She bought fuel. She

went with her then boyfriend, Joe Dibee, to commit these

crimes. She thought them through.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2670

She did that. She's a criminal. She's a person who, if

you just step back and knew nothing about this case and you

heard, here's a person who in a period of a couple, three

years committed four arsons, burned down four buildings, you

are thinking, there is a person that worries me; here is a

person that I am wondering if I can really accept the word of

such a person. She planted devices. She increased the fuel

load.

We talked about character. We talked about integrity.

It's not there. Jennifer Kolar. Intelligence, yes. Honesty,

no. How do we know she's lying? Well, she's lying

specifically about today. She got up there and lied to you in

your faces, and in our faces. She lied to you about who

committed the crime at the University of Washington.

She's telling you that Lacey Phillabaum -- I don't

remember Lacey Phillabaum being there. I am not talking

about, do you remember -- I think I may have said this at the

trial during the cross-examination -- do you remember. This

is not about what kind of wine did you have two months ago at

a particular dinner.

This is -- she doesn't remember, she says, that Lacey

Phillabaum was one of four other people with whom she burnt

down this majestic building. That's not a mistake. That's a

lie. She sat up there, swore to tell the truth, took an oath

to tell the truth, and she has lied in this very courtroom,
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2671

and they are asking you to rely on her to convict Briana

Waters.

She was facing -- when she went in on December 15th of '05

to speak to the prosecutors and FBI, she was facing life in

prison, the rest of her life in prison, and she decided, I

don't want to do that. I am going to cooperate.

On that day, they said to her, "Tell us who committed this

crime that took place four-and-a-half years ago." They were

thinking, this is a crime that they have been wanting to solve

for a long time. It was a big deal, and it is a big deal.

And here was the first person who was going to be telling

them -- the first person -- who committed the crime.

Unfortunately, Agent Torres was there and he took careful

notes. Agent Halla was there, and he took less careful notes.

That happens. When you are taking notes, you are busy

listening, so he only wrote down Capitol Hill Girl, but Agent

Torres wrote down all the names, and he put numbers next to

them.

When Ms. Kolar talked about who had committed that crime,

one person that she did not say committed the crime was, of

course, Briana Waters. She was there, and the very first

thing that she was told was how important it is to tell the

truth. She was told that by Mr. Friedman, and presumably she

was told that by her lawyer. So she sits there and she gives

them names: Capital Hill Girl, Boyfriend, Crazy Dan, Avalon
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2672

and herself.

What does it mean when you are asking somebody who's

telling the truth, who committed the crime, and she says names

that don't include persons she eventually comes to accuse?

How do you evaluate that?

Well, it's not difficult. I have to say, of all the

difficult decisions that you are going to have to make in the

jury room, this may be the easiest. This woman is a liar and

not to be trusted and not to be believed. It's simple.

There's absolutely no question that she is a liar, none.

The question is, do you feel comfortable convicting

anybody, much less, if I may say, an innocent person? You

know the consequences here. You've heard them. There's no

secret.

The day after, or a year after, if Briana Waters gets

convicted, you're always going to be thinking, I really have a

doubt. I can't believe that I convicted somebody based at

least in part on the testimony of Jennifer Kolar. I can't

believe it.

Remember, as I mentioned, they are holding sentencing over

her head. She's not going to be sentenced until after this

trial so that she couldn't come in here and change her mind.

If she had been sentenced a couple of months ago, she could

come in here and say "No, I was lying about Briana Waters,"

and they wouldn't have any recourse. So that's why -- one of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2673

their techniques is they hold it over their heads, both Lacey

Phillabaum and Jennifer Kolar.

Why does she lie about Briana Waters? She realized that

some of what she had told law enforcement people on the 16th

of December was not true and that they would soon know that,

so she had to come up with another name.

Now, we don't know -- I can't say to you -- we can't get

into her head, and we can't say to you that the reason she

chose Briana Waters was because a few years back Briana Waters

has rejected her. It is a fact that Briana Waters rejected

her, and we know that not only from Briana Waters, we know

from the way she answered the questions about her interest in

a same-gender relationship.

She got very nervous, and I understand she would. It's

not a comfortable position for her to be in, to be exposed in

public like that. But she said "Oh, I don't remember when it

was, maybe a long time ago," and then she had to

acknowledge -- now we have in evidence -- I don't need to read

it -- we have in evidence her e-mail to a friend of hers,

explaining her interest, her real interest in another woman,

how she was pursuing that other woman, she was on her way to

the restaurant where that woman was working, and she was

wondering if she herself, Kolar, would have the nerve to ask

her out.

So, when faced with proof -- Jennifer Kolar is faced with
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2674

proof that she had indeed put in writing her interest in

women, she stumbled through it and she said "Oh, yes, now I

remember." It's kind of a familiar scenario, if you remember

how Lacey Phillabaum suddenly remembered certain things about

Justin Solondz when she was confronted with staying in his

cabin. I will talk about Lacey in a little while.

Just one more thing about Kolar not naming Phillabaum.

Phillabaum has pleaded guilty to this crime. Not only is it a

lie, but -- I don't speak for you, but everybody in this

courtroom knows it's a lie. Everybody. Everyone.

Trust me, it would not be fair, it would not be right, it

would not comport with the Constitution; it would not comport

with whatever theological beliefs you may have; it would not

comport with morality to count on or to in any way rely upon

the testimony of this woman. It's just not right.

What does it mean that Kolar spoke to Mr. Bartlett last

August and reaffirmed to him that indeed she had named herself

and the other four people as the participants? That's the

wording of his sworn statement. What does it mean that he can

hear that from her, and then he can come up and tell you she

was vague about it. I dare say, we are not judging the

credibility of Mr. Bartlett. We are judging the credibility

of the witnesses.

But I suggest to you that the arguments that Mr. Bartlett

has made before you, while eloquent, really cannot be relied
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2675

upon if he's going to tell you, in the face of what Ms. Kolar

told you last August, that she was vague about what she said

in that first interview. That just is not square. Those two

items do not square.

Why is it -- let me get back to the question I had

approached -- why is it that for two months, in the seven or

so interviews with Kolar, January 6th to March 6th, that they

don't ask her about Briana Waters? In fact, Briana Waters'

name came up. There was a picture. There was some

conversation, and when it came up in one or more of those

seven meetings in those two months, there was conversation

very briefly about Briana Waters.

At no time -- not only at no time did they ask her about,

is this the woman that you say was the lookout, which defies

logic, defies common sense, but at no time when the name came

up did Kolar say, "That's the woman I am talking about; that's

the woman who was involved as the lookout." That also defies

common sense. What is that about? Why is it not in any of

their reports between January 6th and March 6th?

Well, you have heard and you have seen, both in the FBI

regulations that we have talked about and in testimony, that

there's a process called discovery. When somebody is accused

of a crime, eventually they get documents.

If there is a document -- let's say Kolar changed her mind

and said it was Joe Smith or Joe Dibee who was involved in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2676

this arson, the lawyer for Joe Smith -- let's call it -- would

eventually get the document where she said Briana Waters was

involved. So Joe Smith's lawyer could use that to impeach

Kolar. That's why there's no document. That's why they

didn't talk to her. It wasn't about letting her chill out.

They didn't want to create another document that would

further undermine her credibility as to which they clearly had

doubts. If you don't doubt it, if you think she's telling the

truth, then you ask her about it and you document it. But

they didn't want to do that because there would be a trail of

her naming Briana Waters that could be used by the lawyer for

the next person to impeach Jennifer Kolar.

That's the reason they don't ask her in those seven

meetings that took place in those two months. They don't want

to create a paper trail that would help the next person she's

going to lie about.

Think about it for a moment, if you are sitting there and

you are an investigator or an Assistant United States

Attorney, and you have information that Briana Waters -- from

the witness sitting in front of you, that Briana Waters was

the lookout, the first thing you are going to say is, in this

crime that they have been trying to solve for four-and-a-half

years -- you are going to say, is this the Briana Waters --

tell us about Briana Waters. Your lawyer told us that you

named Briana Waters. Who is she? What happened? When did
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2677

you meet her? Who is she? What does she look like? Where

does she live? That's what they do in investigations. That's

what they are supposed to do. That's what they should do.

Again, we don't know if the reason she chose to name

Briana Waters is because Briana rejected her at some point,

which would have been toward the end of 2001 or early 2002,

before Briana moved to the Bay area.

What we do know is that Jennifer Kolar is what

criminologists and law enforcement people who are objective

would describe as a sociopath. She's committed at least four

arsons -- planned, not happenstance, not spur of the moment;

she's helped put together devices, she's bought gasoline,

she's mixed gasoline, she's bought soap, she's mixed fuel.

This is not just the casual participant. This is a

central figure, with her former boyfriend Joe Dibee and by

herself. Joe Dibee wasn't even in Colorado when she and

another friend of hers tried to burn down the Wray Gun Club.

Let's move on to another interview with Kolar. One of the

interviews in that two-month period, January to March, was

February 4, 2006. That was the day that she and Agent Halla

and Agent Torres drove down from Seattle to Olympia to look

around, to look at buildings and to talk, and they interviewed

her.

We know because Agent Halla's notes tell us so, that what

Jennifer Kolar said to the two agents on that day, whether
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2678

they were driving or stopped, but at a time when Agent Halla

was taking notes -- we know because he wrote it, and what

Jennifer Kolar said to them was, "I don't remember Briana and

Lacey together." That's what he wrote. That's what she said.

Now, what does that mean? That means, obviously, that if

they were not together, Briana Waters could not have committed

the crime because we know that Lacey Phillabaum committed the

crime. We know that Briana Waters could not have been at the

restaurant before the arson. We know that she could not have

been in the vehicle, either going to the restaurant or leaving

the restaurant or leaving the scene of the arson, if they were

not together.

We know that they couldn't have been together at a time

when there was a claim, at this meeting at Evergreen -- by the

way, I am going to talk about that. Why would there be a

meeting at Evergreen? Why in Heaven's name would you create a

record -- if you are going to have a meeting about an arson,

why would you have it in a room where Briana Waters could have

been seen, where the other people could have been seen, where

there could have been a record of getting a room? Ridiculous.

Why? Because Lacey Phillabaum thought that was her clever

way, her debater way, her Cum Laude graduate with honors way,

her three-year graduation -- her three-year finishing school

way, her intelligence, her cleverness, her deviousness, how

can I hook Briana into this. If I claim that Briana was
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2679

involved in it that is going to be credible, I have to say

that there was a meeting at Evergreen.

I will get to Lacey in a minute, but just keep in mind

that she's as clever as she can be. But she tripped herself

up, and we'll talk about it in a while. But back to Jennifer

Kolar.

On February 4th, either in the car or in Olympia, it's

conclusive -- if Lacey Phillabaum and Briana Waters were not

together, Briana Waters could not have committed the crime.

It's conclusive, dispositive evidence, and that came out of

the mouth of the other witness, Jennifer Kolar.

What did they do? Instead of including that language in

their typed 302, they changed it. They changed it to, they

were not close friends, a completely different meaning.

Because they understood, and they understand as they sit there

now, how conclusive, how important, how devastating it is that

if Lacey Phillabaum and Briana Waters are not together, it

means Briana Waters could not have committed the crime. It's

as simple as that.

Now, how do we know that's what happened? Well, we know

because Agent Halla did the handwritten notes, but we also

know -- or we could know some other way -- exactly what was

said because Jennifer Kolar made a tape recording of that

date, that day's events. What she said is on tape.

Now, Jennifer Kolar is a cooperating witness. If they
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2680

wanted to, they could just say to her lawyer, give us the tape

as part of her cooperation agreement. It is not -- anyway,

think of common sense. It is not a lawyer-client

connection -- conversation. It's a conversation with Jennifer

Kolar and two FBI agents. This is not a conversation between

a lawyer and a client. This is not protected. Mr. Martin,

the lawyer, couldn't say "no, no, this is lawyer-client."

It's not lawyer-client. It's a conversation between a witness

and two agents. They could get it in a minute if they wanted

to, but they don't want you to hear that because that's where

she says, "I don't remember Lacey and Briana being together."

Now, there's also no tape for the very first interview,

the infamous December 16th interview. The FBI regulations, as

we see, provide for taping confessions or possible confessions

or statements by anyone they want to. There's provisions.

All you have to do is go to the Special Agent in charge of the

office and say, we want to tape it. That's why we don't have

to be experienced with law enforcement work. From everything

we know, we see true story after true story. Forget Law and

Order, but the true story that you see on television about

confessions.

Police tape confessions all the time. That's what they

do. That's what they are supposed to. Why do they do it? So

that there won't be any doubt that there was really a

confession. Both Lacey Phillabaum and Jennifer Kolar each
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2681

came in on different dates, December 16th for Kolar, February

21st apparently for Phillabaum, and they make confessions.

Now, maybe at the very first moment it wasn't clear there

was going to be a confession, but as soon as it was clear they

were told by the lawyer, "She's going to tell you what

happened," you get a tape recorder. You don't hide it. You

are in Mr. Friedman's office. You don't think they have tape

recorders in the U.S. Attorney's Office?

Is it okay if we tape this; or we are going to tape this,

is that okay? You don't think they could have done that if

they wanted to do it? Well, maybe the FBI doesn't do it as a

policy. Maybe they do. But we haven't heard about the policy

of the U.S. Attorney's Office. There's Mr. Friedman, the guy

who yelled at Kara Larson. You don't think he has the

wherewithal to get himself a tape recorder and say okay,

Jennifer Kolar, we are going to put this on tape?

That way, there wouldn't be any confusion, falsification,

dispute, if you believe it, between the agents about what she

said. It would be right there. You'd hear it. Capitol Hill

Girl, Punk Boyfriend, Crazy Dan, me and Avalon. That's what

you'd hear.

Just one last word on Jennifer Kolar. She was facing life

in prison. She has bought her way out. They are holding the

sentence over her head to see what she did here. She's going

to keep her deal because she came in here and she said what
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2682

she was supposed to say. She said Briana Waters committed

this crime. So she's all right now. She has bought her way

out of a life sentence. I pray to you that you don't let

Briana Waters fall, based on the testimony of this very

unhealthy person.

Let's talk about Lacey Phillabaum. One of the first

questions she was asked is, "Do you bear any ill will toward

Briana Waters?" And her answer wasn't yes or no. Her answer

was, "I have sympathy for everyone in this case, or these

cases." She didn't answer the question.

When I was able to talk to her on cross-examination -- of

course we didn't talk to her any time before that because she

wouldn't talk to us -- I asked her: "In fact, you do bear ill

will toward Briana Waters because you had an affair with her

boyfriend, Justin Solondz, she found out about it and she

called you lots of names." She said "No, no, no, nothing like

that happened." Then I asked her another time, and she said

"Oh, now, that you say it, now it is ringing a bell." Now,

come on.

Again, we are talking about a witness upon whom they are

relying to come -- and they are claiming this is a woman who

is a truth teller. This is a woman who has found the

spiritual way, she says. She wants to shout it from the

mountaintops that I am now here, I am born again. That's what

she's telling us: "I am an honest person," and she comes in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2683

here and the first thing she does is she lies about -- forget

the affair part, just about the confrontation between her and

Ms. Waters.

After she says, "Gee, now that you mention that, she

called me unprincipled; now it rings a bell." Also, this is a

woman who is pretty much as smart as Jennifer Kolar, and she

tells you and she wants you to believe, "Yeah, I didn't

remember that about what happened to me and Briana Waters."

Well, I submit to you that's a lie. She has lied to you in

this courtroom.

Let's go back to some other testimony. She indicated that

one of the book club meetings that she went to, and Jennifer

Kolar went to -- I think it was the middle of the third one --

she had been -- Phillabaum had been at all of them -- was at

all of them. She had an alias, Reba, and she thought she

remembered, but wasn't sure. Another lie.

At the third meeting -- I think that was the one in Santa

Cruz, California -- they learned ways to communicate

anonymously, to use proxy servers, whatever that is, in

computer work, to use codes. And Kolar -- her first meeting,

her first book club meeting, Kolar was an instructor and she

brought a disk for everybody. It's called a PGP disk where

you can encrypt messages so that law enforcement cannot read

your messages. That's these two people at this meeting, this

book club meeting in Santa Cruz.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2684

Well, they also learned lock-picking, breaking windows,

breaking and entering. We're talking about criminals here.

We are not talking about people who they dress up. She wanted

to wear civilian clothes. Remember she told you that? She

was wearing her jail outfit, looking pretty tragic and

pathetic. She walked in here and she sat there and she looked

sad and contrite and remorseful. She wanted to wear civilian

clothes, but the Prosecutor said "No, you wear those jail

clothes." Why? Why would they say that? Because they want

her to look pathetic, contrite and remorseful. That's what

happened here.

That's the way she looked. That was her act, until the

afternoon when, had it been a movie, the director -- and she

came out with her obscenity -- had it been a movie, the

director would have said cut, cut, cut. Listen, Lacey, you

are supposed be pathetic and sad, and not confident and

tragic. You can't do that. You can't say words like that.

You can't do that; let's do this again.

But it's not a movie. It's a trial. There she was,

having first denied, having first denied that she had any

sexual relations with Justin Solondz, she pretty much admitted

it. When did she admit it? When she was confronted with the

302 form where she, for whatever her reasons, she told the

agents -- I think Agent Halla was one of them -- that she had

gone to Justin Solondz' cabin.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2685

No reason she went to that cabin, except for one reason,

and she knew that. She knew when she was shown that document

or when she was read that information; she knew she was

snagged. She knew there was only one reason. She already

said she went there and sat on the bed. She had told them in

that interview that he took a nap.

Now, this is not about criticizing her or trashing her for

having a sexual affair with any particular person. That's not

what it's about. It's about the confrontation that later

happened between her and Briana Waters. That's what it's

about. But there came a time on the witness stand that this

person just busted out. I asked her about what were you doing

in that cabin, more or less. She said "I did not have sex

with that man," or "I did not have sex with him." And I kind

of, in a light question, said, "Do you remember Bill Clinton,"

and she came out with "I did not" -- and I don't need to say

the words; I am sure you remember them.

You could feel the courtroom change. You could feel that

this is a woman that busted herself -- her act. It's

absolutely invalid anymore. She was not a person -- she

revealed herself to be not the person she was portraying.

Then after that, she couldn't remember anything about May

20th and May 21st. She couldn't remember what time of day she

said that they left from Olympia to go to Seattle. Was it the

morning? I don't remember. Was it the afternoon? I don't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2686

remember. Was it the evening? I don't remember.

I think what busted her most was when she was confronted

with the memorandum that our investigator prepared after our

investigator had spoken to the New York Times reporter,

Mr. Carr, who was her mentor, and she said that Mr. Carr had

told our investigator that she, Lacey Phillabaum, had told

Mr. Carr, "I didn't tell the Feds anything they didn't already

know." It's such a critical concept that she would be telling

us, anybody, that "I didn't tell the Feds anything they didn't

already know."

What's so important about that is -- I have said it

before, and I want to repeat it -- that their claim is that

she was an independent witness, independent from Jennifer

Kolar, that she came up with Briana Waters' name on her own.

Well, in fact, she did not. For whatever reasons, in whatever

way -- and my surmise is that she got it through information

given to her father. I want to repeat, I don't think the

father did anything wrong whatsoever. He did exactly what a

father should do. He told her the information he had.

But once she saw that David Carr, a person whose respect

she wanted, no longer respected her, I suggest to you that's

about when she gave it up. That's when she became who she

really was: a person who would lie, who would come out with

that obscenity for no reason, who would try to deceive you,

who said at that point, which is probably true, "I don't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2687

remember what time of day," I don't remember the script

anymore. I don't remember what I am supposed to do. Did we

leave Olympia in the afternoon? Did we leave in the morning?

Did we leave in the evening? I don't remember. I don't

remember. I don't remember. That happened all after the

David Carr event and the obscenity that she came out with.

A little more about Lacey Phillabaum. She went and did a

crop pulling. Not a word about Briana Waters being involved

in that. She went to another place, and she did a girdling of

trees. The woman is a criminal. It wasn't an arson. Those

two weren't arsons, but they were criminal activities, and she

knows it, and they know it, and we know it.

She told us that Stan Meyerhoff, who became her boyfriend

after she -- Stan Meyerhoff had been the boyfriend of Chelsea

Gerlach, and they were just breaking up also. That's her MO,

to tell you that, "Oh, yeah, I got involved with that guy

because that couple was just breaking up." That was her

excuse with Justin Solondz.

So Stan Meyerhoff, she told us, was one of the people who

planned the double whammy, the University of Washington event

and the Jefferson Poplar Farm event the same morning. Then

she said -- she started to talk about this incident. This is

on direct examination, and she said that the meeting at

Denny's a week before the arson in Olympia is the first time I

saw Briana Waters.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2688

That was a lie, and we know it is a lie because Sarah Wald

came in and testified before you, and there was not a single

question from anybody at that table of Sarah Wald. Sarah Wald

explained that in February, the first week in February of

2001, there was a meeting with 20 to 25 people, that Justin

Solondz was there, Briana Waters was there and Lacey

Phillabaum was there, and that Lacey Phillabaum was one of the

facilitators of the event; they broke into three groups.

There's no question that everybody knew everybody that was

there, and in the evening there was a party; Briana played the

fiddle.

There's no question that Briana Waters, who testified that

she remembered meeting or seeing Lacey Phillabaum at that

event in February -- not in May, in February. What's the

significance of it? The significance of it is that she, Lacey

Phillabaum, came and she lied to you. She lied that this was

the first meeting, and there were details around the meeting

of what happened at Denny's, assuming people who are getting

ready to commit an arson are going to meet in a public place

like Denny's.

She made up a detail. She's a debater, you may recall.

She is very clever. She made up a detail, and in order to

make it credible, she said, this is the first time so that it

would be -- she was pretending this would stand out in her

head, this is the first time I met her.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2689

Well, she had met her at least there the first week in

February and then a few weeks later at what's called the ELAW

conference; she met her there, too. So it wasn't in any way

the first time she met her. The importance is the drama that,

"Oh, I remember this is the first time I met her" is

completely false.

She also made up another lie. She lied and she said that

at the time she went to -- she says she went to Conger Avenue,

and she saw Briana Waters in the kitchen playing the violin,

and this was the weekend of the incident, the arson. That

could not have been.

You heard Haila Silvertrees, the mother of Ocean, testify.

You heard Heather Moore testify. At that time, in May of

2001, that house -- that kitchen was under construction.

She's not going to be playing the violin in the kitchen while

it's under construction. That's crazy.

She also said Briana Waters was not living there at the

time she says she was there in May. Well, she wasn't there in

May. There was no clean room in May. You have seen the

manual. You don't do a clean room where somebody lives.

There was no clean room. There was one room in the garage.

You don't do it. It's clear; it's explicit in the manual.

There's skin flakes and there is hair. You don't want to have

DNA evidence.

It could not have possibly been there if Briana were a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2690

participant. But Lacey Phillabaum has a story to tell, and

she has a story to tell -- it has to be consistent with what

she believed the FBI already knew. That's the key to it.

That's why it had to be Briana Waters.

She talked about a meeting, as did Kolar, on the campus of

Evergreen. I mentioned this already. Why possibly would they

want to create any kind of trail that could be traced, that

they had a meeting where somebody could walk in on them, some

faculty member would be there, some clerk would be there who

checked out the room? Ridiculous. How did that happen? Why

was Evergreen mentioned? Only because they knew that Briana

Waters had a connection to Evergreen.

So to tie her into this, Lacey Phillabaum did what liars

do. She made up a detail to make herself more credible.

Think about the liars you have known in your lifetime. Think

about -- look at the con men and women that you see covered on

television. How do they fool people? They fool people by

making up details that convince the mark, the victim, the

person to be fooled. They convince that person by details, by

making up details that are credible. I remember that event

because it was my cousin's birthday, or I remember that event

because I was watching this particular show on television, I

will never forget it, it was my favorite singer, or whatever.

They come up with details because that's what makes them

credible, and that's what Lacey Phillabaum does. At least she
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2691

did it until she busted herself, and then she couldn't

remember anything.

She said that when she went over to Conger Avenue, where

she said there was a clean room and that's where the

incendiary devices were supposedly being made, Ocean was

there. Ocean wasn't there. He didn't move there until July

or August. His mother said so, and his ex-wife said so and

Briana said so. There's no dispute. There's no evidence

whatsoever that that house was finished any time other than

July or August. That's when he moved in there.

When she was there, it was after -- as Briana Waters

testified -- she was there after the house was ready and Ocean

was there. That's why she did see Ocean there at that house,

and that's the day Briana Waters saw her there and said, let's

go for a walk. She went for a walk and she called her the

names and told her the riot act about, "You shouldn't be here

in my house, I don't ever want to see you, get out of here,

you have had an affair with my boyfriend, you are

disrespectful, you are anti-feminist, you are an unprincipled

slut."

That's when she was there. That's why she could draw a

sketch on the back of a photograph. It's a pretty sketchy

sketch, but that's how she could draw anything about -- she

was there. There's no question that she was at Conger Avenue,

and no question that she knew there was a schoolyard with a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2692

track because that's where Briana Waters said, "Let's go," and

they went outside and they took a walk on that track; and

that's where Briana Waters, in her anger -- which she had been

carrying for several months -- said what she said to her.

That's the conversation where Lacey says "Oh, yeah, now that

you mention it." That's something you don't forget, and she

pretended to forget it.

She made a big deal on direct examination, Lacey

Phillabaum did, that it was important to have a car that was

not registered to any of the people involved in the incident.

I think she called it a big issue, and it was the linchpin of

the actions. That's just not so.

Without going through it, there were seven or eight events

that took place, some of them arsons, where people used their

own cars. In fact, it is said that they used Solondz' car

that very night at the Jefferson Poplar Farm event. Dibee's

car went to Susanville. Meyerhoff's car went to Susanville.

Kolar's car went to, I think, a crop pull or another event.

Kolar used her car at the Wray Gun Club.

So the claim that "a car that was not associated with any

of the participants is essential" is not true. It's bogus.

It's a lie. Forgive me for saying this again, but I feel I

have to. In an American courtroom, when people are facing a

conviction of a very serious crime that has very serious

consequences, you really cannot rely -- you cannot permit
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2693

yourself to be pushed into relying on people who have lied to

you, people you know that in your daily lives, if you looked

across at them, they would -- you would say, I don't know that

I can count on this person telling me the truth. That's how

important this is.

It's important, firstly, because Briana Waters is

completely innocent. Secondly, because you have a really deep

responsibility to not permit that to happen, to not be the

person sitting at home 12 years from now and it turns out that

Kolar comes out of prison seven years from now and says, "I

lied; Briana Waters had nothing to do with it. I had to lie;

I was facing life imprisonment." You don't want to be that

person. Those jurors that you see on television who have been

in that position are devastated. Please don't let that

happen. That's not what's supposed to happen in criminal

cases in this country.

Lacey Phillabaum is a person of bad character. She's an

arsonist, a phony person who is trying to tell you that she

wanted to scream from the mountaintops how she's reformed.

Well, she waited a while. She learned on December 7th of 2005

that her boyfriend had been arrested in Virginia, and it took

her more than two months, two-and-a-half months, before she

decided to go in and be remorseful, as she would have you

believe. She didn't speak to them until February 21st of

2006, two-and-a-half months later.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2694

Why do you think it was that the prosecutors did not

cross-examine Sarah Wald who testified that Lacey Phillabaum

had met with Briana Waters in early February of 2001? Because

they just wanted to get her off the witness stand and not have

you remember it. I am here to remind you of her testimony.

She was clear. She was truthful. She was honest. She told

you what it was about. Why is it important, again? Because

of the drama that Lacey Phillabaum created that this was the

first meeting at Denny's in May, a week before the incident,

and it will always stand out in her mind.

An interesting thing happened. They will tell you -- and

they have told you that they wish -- I wish we had the Ralph's

Thriftway document. I say to that: Give me a break. I

suggest to you that they actually did have it. And the way we

know they had it --

MR. BARTLETT: Your Honor, there's no foundation for

this. I am objecting. This is just pure speculation.

MR. BLOOM: Excuse me, I am going to cite a portion

of the transcript.

THE COURT: All right. Cite it.

MR. BLOOM: Lacey Phillabaum testified -- I am going

to get back to that. Mr. Fox is going to help me find the

reference.

What happened is, minutes were taken and they resumed the

numbering and there's two page 63s, so I have the wrong page.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2695

On direct examination, the very first day that

Ms. Phillabaum testified, question by Mr. Friedman -- line

four at page 63:

"Question: I am sorry, before the crime, did you

leave Olympia?

"Answer: At some point, we went to Seattle.

"Question: Do you recall when that was?

"Answer: In the evening.

"Question: The evening before the arson?

"Answer: Of the arson.

"Question: The evening that becomes the night or the

morning of the arson?

"Answer: Yes."

Then there's a couple more questions, and then there's a

question, just a lead in that's not relevant:

"Question: Can you tell us why?

"Answer: It looks just like a Tupperware that was

used to hold the fuel."

And then Mr. Friedman asked the question:

"Question: Now, you said on Sunday night you drove

up from Olympia to Seattle. Where did you go when you got to

Seattle?"

Well, Mr. Friedman wanted to change it to "tonight" rather

than "evening." Why? Because, I submit to you, that they --

in their thoroughness, they knew very well that we had
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2696

proof -- or we might have proof -- that Briana Waters was in

Olympia at Ralph's Thriftway at 12 minutes after 7:00.

So Mr. Friedman wanted to lead her into saying that the

meeting was at night so that it could have been that she was

in Olympia -- Ms. Waters -- and could have gotten there Sunday

night rather than Sunday evening.

You have seen evidence of how thorough the FBI is in their

work. It's to be admired. To suggest that they went to

Ralph's Thriftway and didn't get the full package defies

common sense. Based on your experience of what you've seen in

the courtroom about how thorough they are, they got

everything: They got telephone records, they got credit card

records, they got hard disks, they have soft drives,

magazines; they got everything.

We are talking about the debit card, the ATM card, of

Briana Waters. To suggest that they did not have the

Thriftway document defies common sense.

I see that I am going to have to move along a little more

quickly here.

One of the points here seems to be, if you listen to

Mr. Bartlett, it looks like Justin Solondz is on trial here.

Justin Solondz' records, Justin Solondz' phone calls, Justin

Solondz' maps, Justin Solondz' received phone calls. He made

phone calls. He visited -- Justin Solondz is not on trial

here. Briana Waters is on trial here, and I ask you to keep
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2697

that in mind.

Lacey Phillabaum talks about -- somewhere she said, "When

we went from Olympia to Seattle, Justin had pre-positioned the

devices and the gasoline." Well, when did that happen? The

FBI didn't even ask her: Who did that? Were you with him?

Did you have two cars? What happened? That's an important

part of this event. How did they get from Olympia and how did

they get -- what time did they go? Where did they stop?

Clearly, the importance of that is, if they left Olympia

and they went right to the restaurant where they met Kolar,

well, that would be one thing. That would make it a little

earlier -- I am sorry, later -- that they could leave, but if

they had to stop and they had to go from Olympia to the

dumpster to leave the materials and look around, make sure

nobody was watching, that would be another 15 minutes -- 40

minutes, which means that they would have had to leave Olympia

even earlier.

Any examination of when they would have to leave Olympia,

in order to get to meet Kolar -- as she said 8:00, that was

the figure that she gave, and Phillabaum said early evening --

they would have had to leave Olympia at 5:00, maybe 5:30 at

the latest, given what traffic could be and given what Mr. Fox

was able to discover last night, was the actual traffic

conditions for that Sunday, May 20th, in that part of Seattle.

Construction on I-5, the block parties, if you will, in
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2698

the neighborhood -- and they don't want to rush, and they

can't speed because they can't get caught because they have

gasoline in bags in the trunk of their car or the van,

whichever it was. They also have -- if it was that car -- if

it was the Corrina car, whoever was driving it was not Kara

Larson, the wife of Corrina. It was an unauthorized driver,

so they couldn't speed; they couldn't get a traffic ticket, so

they had to go slowly.

They probably, as Mr. Fox suggested in his questions of

the agent today, would have had to take a more roundabout way

rather than go on I-5, so they really needed, rather than -- I

think the testimony was it was 68 minutes last night that the

agent drove -- they need two hours, maybe two-and-a-half hours

to get to drop off the devices and to meet Kolar.

What does that mean? It means that if Ms. Waters,

Ms. Briana Waters was in Olympia at 12 minutes after 7 -- and

that seems to be undisputed -- that there's absolutely no way

she could have been part of this, none.

The testimony of these two women is that they drove to the

scene. Well, that's not exactly true. The testimony of

Phillabaum, they drove to the scene, and then Ms. Waters was

in the car and she was the lookout.

Well, the manual that was written by William Rodgers and

Stan Meyerhoff, Phillabaum's fiancee, says very clearly that

the lookout is supposed to get there ahead of time, either on
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2699

foot or on bicycle. That's in evidence. I think it's called

How to Set Fires. An unpleasant book to read, but it's a

manual. It tells what the people who in fact were involved in

these arsons -- not Ms. Waters, but Ms. Phillabaum and Ms.

Kolar -- what they were doing, how they did it, and that's how

they did it.

One of the things that is in the manual that they are

supposed to do is make sure the lookout is there ahead of time

and go by foot or bicycle.

Now, Phillabaum testified that at the scene, right there

at the scene, she crouched down with Kolar, and she saw a

bicycle and she said to Jen, as she called her -- she talked

about the bike and does that mean somebody's here.

She actually said at the scene of the fire, "I had

conversations with Jennifer Kolar," which makes it all the

more ridiculous that Kolar is claiming that she doesn't

remember Phillabaum being there. They spoke to each other in

the hush of the morning, right at the edge of the fire, or

where the fire is about to be. They spoke to each other.

Phillabaum also said that Avalon looked -- he was in the

office and looked for documents. She first said there weren't

any, and then she changed her mind -- there were some. She

also said -- and this is of great importance -- she told them

the very first day, February 21st, when she spoke to them in

their offices; she said that Justin Solondz and Briana Waters
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2700

were the lookouts, two people. That was her memory. That's

what she believed had been told to the FBI, because she was

telling them what she believed they already knew, so she gave

them that information. But sometime between then and the time

you saw her on the witness stand, that changed to Briana

Waters alone.

What does that mean? Here you do an arson -- she says

it's her only arson. She's a smart person. You would think

that she would have a good memory of it. What does she do?

She says two people, one of whom absolutely was not there --

Briana Waters -- were the lookouts. Then she changes. What

does that tell you? It tells you that she's not a person

who's telling the truth, or at least it's a person as to whom

you have to have a doubt as to whether she's telling the

truth. You've seen who she is.

We talked about Corrina. I want to keep it brief about

Corrina.

Briana Waters, after she was approached by Agent Halla in

February two years ago, contacted friends and family and said:

"I look like I am in some trouble." By the way, when Agent

Halla came there to say to her, "We're investigating whether

or not you were involved in an arson at the University of

Washington in May of '01," Briana Waters testified that she

denied that. There's been no testimony from anyone to dispute

that.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2701

When Briana Waters was accused, not exactly -- asked to

cooperate by Agent Halla, one of the first things she did is

she got in touch with friends and family and said, "The FBI

may come around," and she said specifically to Corrina, her

cousin, "I am innocent. Tell them the truth."

Well, they did come around eventually, and he didn't tell

them the truth. He committed the federal crime of lying to a

federal officer. He said he doesn't even know a Briana

Waters. She didn't ask him to do that. She certainly didn't

want him to do that; and he got himself in a big jam; and they

wound up eventually putting him in front of a Grand Jury and

he testified falsely; and now they really had him. That's

what they call a perjury trap, and that's what happened with

Rob Corrina and his wife Kara Larson.

Mr. Friedman, the power of the Department of Justice,

decided to put them in the Grand Jury, to lock them in and put

them in a place where they really were going to have to

cooperate, and that's exactly what happened. They scared the

pants off Corrina, and they scared the pants off his wife.

Then he comes and tells stories, and it turns out that the

story he tells, that the car was rented for Briana Waters at

her request, and the timing that he gives which I went through

earlier, exonerates her.

Remember -- I am going to say it again -- that on Monday,

the 21st, he said that he was waiting for her to bring back
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2702

the car and he was waiting at home. It could not be. He was

not at home. He was at work. So the day he was waiting for

her to bring back the car, even if you believe his story, even

if she did use the car, which she didn't, had to be Sunday.

It had to be Sunday.

So the whole story of her taking the car Sunday evening,

telling the story about going to the hospital, was all made

up. Heaven knows why he made up that detail, but he was

completely, absolutely wrong. As I said before, if there were

any proof at all that Rob Corrina was not at work that Monday,

you would have seen that witness. He was at work that Monday.

His story could not have been true.

If she did use that car at all, which she does not

remember -- understand, when I say that she doesn't remember,

I will repeat something that's really critical. She, unlike

the arsonists, does not have a reference point for that

weekend or that month. The only reference she has is April,

when she finished producing her video, and a couple of dates

when she remembers showing it.

In fact, on Corrina's calendar, it was shown on May

31st -- Capitol Theater in Olympia -- but she can't remember

back four-and-a-half years to events that were of no

consequence, of no meaning. I suppose it's possible to use

the car for an errand or not. She doesn't remember that. But

she certainly didn't take the car, and she certainly didn't
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2703

commit an arson.

Now, the mileage that was put on the car -- I think the

mileage adds up to about -- between Olympia and Seattle, round

trip adds up to about 140 hours, a little less. Well, there's

237 miles on that. How do they explain that?

Well, they say Corrina was penniless. He wasn't

penniless. Not at all. He had a job. He was working. I

don't know where they came up that he was penniless. Further,

about being given money by Briana, well, he now says that he

was given $200 at that time by Briana.

There's no record of it being given to him by Briana, but

he did say when he spoke to them at first, that just before

Briana left to go to the Bay area, she gave him $100 and she

gave it to him -- and she remembers giving to him about $100,

not for a car, but for food and mostly for telephone.

So it got changed. No matter how you slice it, they are

relying on his testimony being truthful. He first told them

it was $100 -- it was just before she moved to California, and

it didn't have anything to do with the things they say that it

had to do with. That was his first statement. They want to

take people's first statements, and they say don't pay any

attention to that -- just youthful folly.

If that rental car had been used for that incident, for

that arson -- I have said this, and I want to say it again --

the FBI lab person would be up there telling you, "I looked at
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2704

the rear quarter panel and there was evidence of damage."

Remember, Lacey Phillabaum used the word "damage" and she

used the word "dent." She used the word "dent." I am not

just talking about paint scraping. When she comes and

testifies here, "We were only going five miles an hour,"

that's just not true. That can't be true. First of all,

because she said it seemed "huge." That's the word she used,

"huge."

Test the car. Have the FBI get the car. Ask the owner in

Wisconsin, is it okay? We'll give you a loner, and we'll have

your car back, painted, good as new; let us test the car. If

they said no, they get a court order. They could have tested

it. They didn't test it. They could have tested it because

they knew it's not the car.

How do they know? In part, because Rob Corrina and his

wife used the car themselves that weekend. She had us -- she

uses -- apparently she wrote two checks for $1.25 twice, once

on the 19th of May and once on the 22nd of May, maybe the

21st; somehow she paid $1.25 in checks to use public

transportation.

So they used the car that weekend. That's the whole

point. They used the car. Now, he had said when he first

spoke to them, the reason they got the car was because their

bikes were in the shop. That's his memory. Now, it may be

that the notation on the calendar later on says "bike to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2705

shop." Maybe it just wasn't working on the weekend of the

20th and 21st, and maybe he did finally take it in after that,

but he said to them that it was about -- the whole purpose of

the rental was because our bikes were not operable.

Indeed, they did use the car that weekend. They used the

car Saturday and Sunday. There are at least three charges --

actually, four charges for restaurants and for supermarkets in

those two days. They used the car.

Why do you think, when they finalized the 302, the FBI

report, and as they say in February of '06, Jennifer Kolar had

told them -- and we saw it in Agent Halla's notes or Agent

Torres' -- I think it was Agent Halla's notes -- it was a car

or van. Why do you think they left out van when they

finalized and serialized the document?

Wouldn't you want to make it accurate? If she said car or

van, that's what you would want to write, unless you have a

reason for not writing it. They wanted the car. They wanted

it to be a car because they wanted this to be the car, because

by that time, as of January 5th, they were now focussing on

Briana Waters. That's what was happening.

So now -- that's why it's safe to say, because Agent Halla

seems like a pretty nice guy and his testimony was quite

credible -- he said, by the way, she named -- she, Kolar,

identified five people. That was his testimony. He didn't

say "vague." He said she identified five people.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2706

But when the deal went down, he decided there was going to

be a little bit of fudging of the FBI reports. You will see

it. Not because I say it. You take a look at it.

Particularly that February 4th document, where it got changed

from Lacey and Briana not together, to Lacey and Briana not

good friends. There's no other explanation for that.

What do we know from this so far? We know that Briana

Waters was in Olympia at 12 minutes after 7:00. We know that

given the traffic and the potential traffic, Lacey Phillabaum

and the people who apparently committed the arson with her

would have had to leave Olympia by 5:00 or 5:30. That's what

we know. We know that Meyerhoff says not involved. We know

Kolar has lied to you about who was involved in the incident;

lied on the witness stand.

When we offered the Ralph's Thriftway document, there were

no questions. It just went in. They hoped you would forget

it, but please don't forget it. It proves conclusively that

Briana Waters was in Olympia at 12 minutes after 7:00

Ms. Troxel from Randle testified -- one of the first

character witnesses -- and she testified as to what happened.

She told you the story of the Watch Mountain campaign as a

Randle resident, about how meaningful it was to her, about how

meaningful it was to associate with Briana Waters and her

friends. Then she was cross-examined, and I actually don't

remember right now what the subject matter was, about what she
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2707

was cross-examined about, but Ms. Troxel said to Mr. Bartlett:

"You are grasping at straws, Mr. Bartlett." So much of the

evidence that's put before you is grasping at straws.

What moment is it that Briana Waters, in one particular

month, paid the rent for Justin Solondz? What is that about?

That has absolutely no meaning. What is it they wanted you to

believe? Why did they put that into evidence -- that she is

supporting him? I don't get it. Grasping at straws.

Tiffany Tudder. What does that mean, that a college

student said, "I support it, if nobody gets hurt." What does

it mean that Dibee called her -- and obviously there was no

answer; it's a one-minute minimum -- sometime before a

Susanville arson of which she's not accused and sometime after

the Susanville arson? What does that mean? That's just to

taint you. That's just to trick you into thinking that she

was involved in something that there is no accusation she was

involved in.

They tried to impeach her by using a pleading that Mr. Fox

and I had prepared which tries to minimize the impact of the

crime. They said, "This is you, you wrote this, you are

responsible for this." That's nonsense. That's a smoke

screen. That's grasping at straws.

They actually went so far as to suggest that she

orchestrated who comes to court to watch. A class came to

court and when they left in the afternoon, or the following
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2708

day -- six people came to court. What does that possibly

mean? Why would they introduce that? Why would they

cross-examine that? What is that about?

The materials -- this is very important. They want you to

believe that it was Briana Waters that sent those. Let's call

them the inflammatory pamphlets to Jennifer Kolar. There's no

fingerprints of Briana Waters on anything but the folder. I

think it's clear that she sent or gave Jennifer Kolar some

things to read. This is the same Jennifer Kolar who has

decided to name her, so it was she who gave them the folder

with some things in it. How can they possibly rely upon the

proposition that those are the documents that were originally

in the folder? No fingerprints of Ms. Waters on any of those

documents.

Justin Solondz, yes. Briana Waters, no. Justin Solondz

is not my client. He's not on trial. Briana Waters is here.

She's innocent. She's pleaded not guilty. She has testified

before you. She didn't have to, but she wanted you to see and

hear who she is and what she had to say. We have produced

about a dozen people, wonderful people who have come here from

afar to testify to her character.

They searched Rodgers' place in Arizona. They found one

document, a reference -- a footnote that had a reference to

the Watch video. That's all they found in connection with

Briana Waters. They had you believe -- they showed you a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2709

document where it revealed approximately 50 phone calls from

Mr. Rodgers to the places where Briana was staying, but it

covered the period of the entire year of 2001. It comes to

about one phone call a week.

The suggestion is he's calling you all the time. Well

first of all, that's not true. It was about once a week. But

then they do this, and they say there were no phone calls in

that period of May 19, 20, 21. Well, if there had been phone

calls, they would have said: Ah-hah, there were phone calls.

Now they are saying, ah-hah, there were no phone calls. What

is it? What does it prove?

In fact there are no phone calls -- it proves that

Mr. Rodgers apparently was busy that weekend and he may very

well have been busy committing an arson with Lacey Phillabaum

and Jennifer Kolar, but he was not committing an arson with

Briana Waters because she doesn't commit arson. She didn't.

She didn't do crop pulls. She didn't do girdling.

There's been no proof whatsoever, not a single word that she

did anything other than what she told you she did.

They went to her website and cross-examined her website.

Talk about grasping for straws. Aren't you making money off

of this case? How ridiculous.

She told you, and she didn't have to tell you -- you can

imagine what her life has been like since the day Agent Halla

showed up. Agent Halla was nice, polite and professional.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2710

But to understand that you are accused of a serious crime that

is going to put you -- I guess I can say it because it's out

there -- in prison for a minimum of 35 years, what do you

think her life has been like? Do you think she's making money

off her website? How ridiculous. Give us a break.

The map at Justin's. There was a lot of maps at Justin's.

They pick out that map and they say, this is the map that's

going to prove what? Something about Ms. Waters? Of course

not. That's called grasping at straws. They see some

literature at Justin's, and they position the magazines in

such a way so that they can take the picture. They put the

anarchy magazine right out in front.

This literature that -- Mr. Bartlett himself took a yellow

highlighter, and he looked at the literature that Jennifer

Kolar had given to them, saying this came from Briana Waters;

and he took a yellow highlighter and he picked out the stuff

that was most inflammatory, where he would hope that you would

say, oh, this Briana Waters, she wants to burn down the Statue

of Liberty; she wants to burn down Disneyland.

How dare he attribute that. First of all, the source of

it was from a woman who's a liar, Jennifer Kolar, and how dare

he -- no question that he's trying to say to you that this is

what Briana Waters thinks about it. That's what he's trying

to say to you. That's false. That's fraudulent. That's

dishonest. You can't let that happen. He thinks you will be
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2711

fooled. He thinks you aren't sophisticated.

If he shows you this stuff, they will believe it, or maybe

some of them will believe it. It's not Briana Waters. You

heard who she is. You saw who she is. She subjected herself

to cross-examination. I wish I can say more. My time is

limited.

Could I get another 15 minutes and then that will be it?

May I make that request?

THE COURT: Go ahead, Mr. Bloom.

MR. BLOOM: Thank you.

THE COURT: Go ahead, but please close it down.

Mr. BLOOM: I will eliminate some stuff.

THE COURT: Please.

MR. BLOOM: Thank you. I appreciate it.

What is it that Ms. Phillabaum said about a rental car?

She didn't say it was a cousin. She said it was an aunt, an

older woman. Where do you think she got that?

I suggest you are all familiar with the game, party game

called "telephone," where a message is passed through a lot of

people. By the time she got the information of what she

thought the FBI knew, she decided what she was going to say to

them: that it was an aunt. That's what she had heard. That's

what she had made up.

She was getting information, and legitimately so, from her

father who admittedly -- the FBI has told you that her father
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2712

was called, and surely he was given some information about

what it was about.

When Lacey Phillabaum testified, she was a person who was

very much attentive to detail. When she looked at the

document we gave her that had to do with the New York Times

reporter, Mr. Carr, she said -- she only looked at it for a

little while, and she said the e-mail address is wrong here.

She's no fool. She understands it.

She had the information wrong. The reason she had it

wrong is because she made it up. That's what happens when two

people tell a story that's not true. That's how they get

caught. They make up details, and Mr. Bartlett has

acknowledged to you there are some discrepancies. One thing

that makes discrepancies -- and I would have to agree that

people see things and remember things in different ways, but

the discrepancies here don't fit that description. The

discrepancies are major.

What about the Rodgers telephone? Ms. Waters was asked by

Mr. Rodgers to buy a cell phone for him. She did, because she

did him a favor, and she explained who he was, what the nature

of their relationship was: that he was a depressed person and

she agreed, as a friend, to buy him a telephone. Whose name

did she buy it in? Not some phony name. Not Reba. Not

Diver. Her own name. She wrote her own checks, with her name

printed on it. That's not a deception. That's not some
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2713

dishonest act. That has nothing to do with arson. It has to

do with a friendship. Another grasping at straws.

Lacey Phillabaum wrote an e-mail to a friend of hers, and

here's what she said. She said, "The Feds overcharge, they

force plea deals; taking a case to trial is not a right, but a

very risky proposition." That's what she wrote to a friend of

hers. That's what we've seen here, and we certainly see it's

a risky proposition.

When you see it, look at the energy they have put into

trying to put this woman in prison for 35 years. What can

that possibly be about?

What is that about? Yes, they overcharge. They force

plea deals. They forced a plea deal with her. They forced a

plea deal with Jennifer Kolar. Lacey Phillabaum knows it, and

that's what she told her friend, and that's what she has in

effect told you. Please keep that in mind.

That's what they do. Look at their power. Look at what

they did with Rob Corrina and Kara Larson. They put them in

the Grand Jury. In another setting, they would simply be

called bullies.

Briana Waters supposedly wanted the car, asked Corrina to

rent a car so that she could use it with her associates in an

arson. Well, Corrina told you, the day that she was supposed

to show up, she didn't even show up. Does that seem

consistent with wanting to use the car, to secure the car, to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2714

get the car; secure it in advance so you can be sure you have

a car? She doesn't even show up. Obviously, she had nothing

to do with the car.

If indeed the car was supposed to be used for an arson,

you would show up a day early, rather than a day late. How

can they possibly say that this car -- given what Mr. Corrina

said, no, he didn't rent the car at the request of Waters. He

didn't. That's what happened.

Then they got him to change his mind, and then they had

him in the perjury trap, and that's why he was here, looking

very unhappy and being very unhappy.

I am sorry to take time here, but I am trying to go past

some items here that I think I can skip.

I want to talk about Lacey Phillabaum again. She came out

with the crude language the afternoon of her

cross-examination. Not only was it crude, and not only was it

inappropriate, but it's the kind of thing -- the act that she

denied -- just the way it came out, it had what you would call

the ring of truth, that when she said that, you know that's

exactly what did happen.

Remember the testimony of Mr. Wake, the very brief

testimony of Justin's landlord? He testified about the

structure of the cabin, that there was a bed, that there were

places to sit other than the bed. Well, why would she sit on

the bed? Of course she sat on the bed because of the obvious.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2715

It was a plan. Why did she go to the cabin at all with

Justin? Obviously, it's not just that she had relations with

him. It's just that she wasn't forthcoming to tell the truth.

When she was first asked, "Do you have any ill will

towards Briana Waters?" "Absolutely not; I have sympathy

towards everybody." Then she repeated no, no, no. Then she

got snagged, she got caught, and then she got further caught

when it was revealed that she was in his bus with him and she

realized she better come up with something, and then she

started to remember.

Lacey has admitted that she was a drug abuser. She's

admitted to -- I think she called it a marijuana addiction.

She's admitted that she used the drug ecstasy. She's followed

this case. She has read the pleadings in this case. She's

very smart. She has been able to adjust her testimony, adjust

her story based on what she reads about this case.

That is how -- that is who she is. She came in trying to

look pathetic and sad and beaten down and remorseful, but she

eventually -- toward the afternoon, she answered a question

with words that I didn't understand, that were beyond my

comprehension, beyond my vocabulary. She's an extremely smart

person who was playing dumb.

Eventually, she gave up the act. I asked her about Stan

Meyerhoff, and Stan Meyerhoff, just a few weeks after she,

Lacey, decided to name Briana Waters. That was the time that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2716

Meyerhoff looked at Briana's picture and said "not involved,"

and I asked her about that, and her answer was: "Stan has a

different memory of what happened than I do."

Well, Stan already had his deal. He had made his deal on

December 7th, or he began to make his deal on December 7th,

the day he got arrested. She was now making a deal, and she

had to remember it differently than Mr. Meyerhoff because she

couldn't help herself unless she came up with a name that she

thought would please the FBI. That's what happened here.

Remember, the key concept here is that she gave them

names, information that she thought they already had. She

finally came around to acknowledge that.

THE COURT: Final words, Mr. Bloom.

MR. BLOOM: I am sorry.

THE COURT: Final words.

MR. BLOOM: Thank you.

You are the conscience of the community. I ask each of

you to bring your conscience to these deliberations. This is

about a very important matter. It couldn't be more important

to Briana Waters and the people around her, and it can't be --

let me put it this way. If you find that a person who is

innocent is not guilty, everybody wins. Everybody in this

room wins. Everybody in this country wins. If you do the

right thing, if you follow the principles of not convicting

anybody unless there's credible proof beyond a reasonable
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2717

doubt, you will have served everybody, and it will be an event

you will never forget, and you have done the right thing.

I ask you to really bring your conscience to this, and

don't be overwhelmed by the nature of the setting, by the

nature of the accusations, by the federal government. It

isn't right. It isn't fair. It isn't just to convict this

woman who did not commit this crime.

Thank you.

THE COURT: Mr. Friedman, you are giving rebuttal?

MR. FRIEDMAN: In light of the hour, could we restart

in the morning at 9:00 and do that?

THE COURT: Let me ask the jury. Are you receptive

to getting the rest of this case? Tell me how long you are

talking about here.

MR. FRIEDMAN: Probably half an hour.

THE COURT: Well, first of all, let me give you a

quick break and have you back here. Leave your books on the

chair and don't discuss the case, and we'll get to this.

(Jury not present.)

THE COURT: You may be seated.

What I want to do is get this case completed today so that

this jury can go to work in the morning. So I would ask you

to think about what you need to rebut and do that. Let's take

a 10 minute break and have them back in here.

THE CLERK: All rise. Court is in recess.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2718

(Afternoon recess.)

(Jury not present.)

MR. BLOOM: Thank you for the extra time.

THE COURT: Are we ready? Bring them in.

(Jury present.)

THE COURT: You may be seated.

Mr. Friedman.

MR. FRIEDMAN: Thank you, Your Honor.

Good afternoon, Ladies and Gentlemen. There's a list of

names on the screen in front of you: Jennifer Kolar, Lacey

Phillabaum, Robert Corrina, Ted Halla, Tony Torres.

To believe what Mr. Bloom wants you to believe, to accept

what he wants you to accept, to conclude that the Defendant is

innocent of the charges in this case, you have to believe that

all of those people are lying, that they all came in and lied

to you. Not one, not two, not three or four -- all five of

them. You have to believe that they worked together; that

they conspired together to frame this Defendant.

Jennifer Kolar. Jennifer Kolar, who told you that she

really liked the Defendant. According to the Defendant,

Jennifer Kolar, who had a strong connection with the

Defendant, and yet now when she needs to pick someone to

frame, she picks the Defendant.

Lacey Phillabaum. Lacey Phillabaum, who testified so

compellingly for nearly a day on cross-examination, who told
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2719

you that she felt a great deal of compassion for everyone

involved in this process, including the Defendant, and yet

she's lying to frame the Defendant.

Robert Corrina, the defendant's cousin. Mr. Corrina told

you that the first time the FBI came by, he pretended not to

recognize a photo of her. He did that in an effort to protect

her. He said he didn't think. That's just what you do to try

to protect your family. And now Mr. Corrina is lying. In the

Defendant's words, he's making things up to frame her.

Agents Halla and Torres. They have never heard of Briana

Waters. They had never heard that name until January 5th when

Mr. Martin called to report that name to the Government. This

isn't someone they were looking to convict. This isn't a

long-time target. And yet, you have to believe that they both

also joined in the conspiracy to frame Briana Waters.

There's, of course, been no evidence of such a conspiracy.

It makes no sense. It's contrary to all the evidence in the

case. It's contrary to all the evidence which proves beyond

any doubt that this Defendant did exactly what she's charged

with, and that she's guilty of the crimes with which she's

charged.

You've already -- we have gone through the evidence a

couple times, but let me ask you to take a look at it in a

different way, through a different lens, to look

chronologically at what happened in this case, the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2720

investigation as it went forward. If you do that, you will

see that there's no way in which these witnesses could provide

this information.

Each witness, as they came in -- no way unless it were

true -- each witness as they came in provided information that

was subsequently corroborated by physical evidence, physical

evidence they could not know existed if they were not telling

the truth. This investigation started at the time of the UW

arson in May of 2001 -- or the investigation of that fire, and

for four-and-a-half years, there was almost no progress,

almost no break.

Then in December of 2005, Jennifer Kolar came in for a

meeting with the Government, and she admitted that she had

participated in that arson and she provided some information

about the arson.

You've heard a great deal about that meeting and the

agent's notes. You've seen the agent's notes. You've heard

about the report. The central thing -- and there's no dispute

on this -- she didn't identify Briana Waters in that first

meeting, but two weeks later her lawyer called and said that

she had recalled the identity of one more of the people

involved in the arson, Briana Waters.

That information has been corroborated by other physical

evidence developed since that time. Ms. Kolar's computer

contains old files that corroborate what she had said.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2721

There's an address book that has entries for Avalon, for other

people. There's a calendar that shows a meeting at the

library in Olympia, a meeting that the Defendant was

instrumental in arranging.

Most tellingly, there's Exhibit 614, the folder of

documents that the Defendant gave to Jennifer Kolar back in

2001; the articles that she wanted her to read. When

Ms. Kolar came in, she didn't recall that she'd been given

that document. It had been stored away for four years in a

tub of documents. She turned it over to her lawyer, and her

lawyer in time turned it over to Agent Halla, and he looked

through and he found the folder with the note signed by her,

and the documents, and he sent those to the lab.

The folder came back -- the report on the folder came back

saying there was a fingerprint on there, and it was the

Defendant's, and the articles inside had the fingerprints of

her boyfriend, Justin Solondz. Ms. Kolar didn't -- when she

came in, in December, when she passed Briana Waters' name on

to the Government, she didn't know that that folder would be

found in the tub. She didn't know that it would have the

Defendant's fingerprints.

She didn't know what her old computer files would say,

files she hadn't thought of for years. All of that evidence

is evidence subsequently found that corroborates what Jennifer

Kolar told the Government about Briana Waters' participation.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2722

Moving on to mid February, by mid February, Agent Halla

had concluded that Lacey Phillabaum was involved. Agent Halla

contacted Lacey Phillabaum, and Lacey Phillabaum came in

within three days and she also provided information. She

provided information implicating the Defendant in this crime.

There's been a lot of suggestions thrown about, a lot of

aspersions cast by Mr. Bloom, that somehow Lacey Phillabaum

and Jennifer Kolar are working together, that somehow the

Government leaked the information to Jennifer Kolar, one

theory after another, all of them inconsistent, all of them

unsupported by any evidence in this case.

There's no connection in the phone records between

Jennifer Kolar and Lacey Phillabaum. They both told you they

were out of touch with each other. There's no suggestion, no

credible suggestion, that the Government actually provided

information to Lacey Phillabaum. Agent Halla testified that

no such information was provided, and Lacey Phillabaum

testified to that effect herself. She was asked a couple of

questions.

She was asked: "Question: Did you receive any

information from the Government about what happened at the

University of Washington arson?

"Answer: No.

"Question: Do you have any reason to believe that

your attorney received any information from the Government
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2723

about what happened at the University of Washington arson?

"Answer: No."

So even today's newest theory that somehow the

information was given to her father, her father is her

attorney and her father does what any father would do and

leaked the information to her; there's nothing to support

that. In fact, the clear testimony given in this case, the

testimony of Agent Halla and of Lacey Phillabaum, is that that

didn't happen.

Lacey Phillabaum's testimony, like Jennifer Kolar's --

Lacey Phillabaum's account is corroborated by physical

evidence, physical evidence that she could not have known

would exist to corroborate her account if she were not telling

the truth.

At the time that Lacey Phillabaum came in, the Government

didn't know where the Defendant was living at the time of the

arson. Yet Lacey Phillabaum provided the sketch -- you've

seen the sketch, Exhibit 1013C, I believe -- of the house in

which the Defendant was living with a separate outbuilding in

the garage in back. In time, when Agent Halla found it, that

turned out to be exactly where the Defendant was living at

this time. That's the place where the bombs were built for

the University of Washington attack.

Even more important, Lacey Phillabaum said that the

Defendant was the person who had arranged for a rental car.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2724

She recalled that the Defendant was having a relative, and she

referred to her as an aunt, and Lacey Phillabaum understood

that that term was used a little loosely, not necessarily an

aunt, but that she had this aunt get a rental car to be used

in the University of Washington arson.

If that weren't true, Lacey Phillabaum couldn't have had

any knowledge of it. That was the first the Government had

heard of it. The Government didn't have any records of a car

like that. The Government couldn't leak that to Lacey

Phillabaum, and Jennifer Kolar didn't know what the source of

the car was, so that's clearly not coming from her either.

It's not a conspiracy between the two of them.

Agent Halla took that piece of information, he spent most

of a year trying to figure out who it was that the Defendant

knew, who her relatives were.

MR. BLOOM: I am sorry, but there's some statements

here, materials that are not in evidence, and I would object

to that.

THE COURT: All right.

MR. FRIEDMAN: Thank you, Your Honor.

He spent most of a year trying to figure out who might

have rented this car and eventually, through hard work, he

found the car rental record: a rental by Kara Larson, the wife

of Robert Corrina, the Defendant's cousin, for exactly the

weekend when this arson was committed.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2725

If Lacey Phillabaum was not telling the truth about what

happened, there would be no way that she could know about that

rental, and there would be no way that that rental would even

have happened.

The fact that after looking diligently, Agent Halla was

able to come up with a record that corroborated exactly what

Lacey Phillabaum told him is the proof that what you have

heard is true: The Defendant was a participant in this arson,

that she was the person who rented the car.

Moving on to Mr. Corrina, he also provided information

that subsequently corroborated, by physical evidence, about

which he did not know at the time.

When Mr. Corrina came in and was interviewed and indicated

that the Defendant had asked him to rent a car and he had

rented a car, and he explained how she had come on the day

before it was due back, the Sunday, taken the car with the

story about needing to go to the hospital and not reappearing

until the next day, he had just been presented with those

records.

He did not have his old bank records. He didn't know that

those records, which the Government obtained subsequently,

would show the payment for that -- the $200 payment -- that

they would confirm his account -- that this was not a rental

for him, this was a rental for the Defendant, a rental that he

did at her request so that she would have a car to use for
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2726

this arson.

Mr. Corrina also had not looked back at his calendar and

subsequently provided his calendar, and that has a note on it,

"call Budget," a week after the rental. The only explanation

for that is another fact that Mr. Corrina knew nothing about.

Mr. Corrina didn't know that there had possibly been a scrape

or minor accident to the car. He's not in -- he has no

contact with Jennifer Kolar or Lacey Phillabaum. They move in

completely separate worlds.

There's no suggestion that Agent Halla provided any

information like that to him. Yet, he provides a calendar

that says "call Budget." As he looks at that, he recalls that

that was because Briana Waters, when she brought the car back,

expressed some concern about damage, and that he was calling

Budget to find out if there was in fact any damage to the car

that had resulted in an extra charge.

So the calendar, the bank records, are physical evidence

that Mr. Corrina could not have known about; they are details

that he provides that match with what the other witnesses have

said, that he could not provide if he were not telling the

truth.

When you look at all of the evidence, it all fits

together. Each of the witnesses provide additional

information that they could not provide if they were not

telling the truth. It's information that could not come from
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2727

the Government because the Government didn't know it at the

time of the interview. It's information that could not come

from other defendants -- other witnesses who had already come

in and agreed to cooperate because those witnesses did not

know that information.

So the physical evidence corroborates what Jennifer Kolar

says. It corroborates what Lacey Phillabaum says. It

corroborates what Robert Corrina says, and it corroborates it

in a way that proves that what they are telling you is what

happened.

I want to address a few of the things that Mr. Bloom said

when he spoke to you earlier. He referred to Stan Meyerhoff

again and the episode on March 17th of 2006 where he's shown a

picture of the Defendant and says "familiar," "not involved."

As you already heard, before that, back in January,

Mr. Meyerhoff had described the Susanville arson, and he had

said that one of the participants was a blonde violinist from

the Bay area. He had described the Defendant before he was

ever shown a picture. I submit to you that Mr. Meyerhoff is

not here. He's not been called as a witness, so you may want

to put the evidence about what he said aside. But if you want

to consider it, it's evidence that suggests that the Defendant

was involved in this conspiracy, not evidence that exculpates

the Defendant.

Mr. Bloom also questioned why the Government had not
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2728

called Stan Meyerhoff. The Government called the witnesses

with the relevant information in this case. Five people

participated in the University of Washington arson. William

Rodgers is dead. He committed suicide shortly after arrested.

The Defendant's boyfriend, Justin Solondz, at the time is a

fugitive.

The two remaining people who knew about this, who were

there, are Jennifer Kolar and Lacey Phillabaum, and the

Government called them, and they testified to you and they

told you what happened, and they identified the Defendant as

one of the people who was there with them.

Mr. Meyerhoff is available to both sides. If the

Defendant actually thinks that he would exculpate her, that he

has important evidence that would prove that she was not

involved in this, the defense is free to call him. The

Government has no lock on him. The Government called the

witnesses who were there, who committed the arson at the

University of Washington with the Defendant.

Mr. Bloom talked about Sarah Wald. He asked why the

Government didn't cross-examine Sarah Wald. Sarah Wald, if

you remember, is the witness who said that she had been at a

meeting in Portland in early February of 2001, and that both

the Defendant and Lacey Phillabaum had been there, and the

implication is well, they were both there so they must have

met there, and so Lacey Phillabaum is lying when she says that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2729

she met the Defendant on May 12, 2001 at a Denny's restaurant

in Olympia.

If you remember, it was Ms. Wald's testimony that there

were 20 to 30 people at that meeting. Lacey Phillabaum was a

leader at the meeting, a facilitator; she was someone quite

visible to other people. There was no similar testimony about

the Defendant. There was testimony that she played the fiddle

that night. There wasn't any testimony that Lacey Phillabaum

was around at that point, that Lacey Phillabaum was there for

the evening, or anything like that.

So the only thing that Sarah Wald tells you, the only fact

that you can take from her testimony, is that she was at a

meeting in Portland attended by 20 to 30 people several months

before the episode, the incidence of May 2001, and that Lacey

Phillabaum and the Defendant were both there.

She didn't provide testimony about them having any

contact, about seeing any contact, about seeing any

conversation. Even if both of them were there, there's no

reason to think that Lacey Phillabaum would necessarily

remember that. Lacey Phillabaum could easily be at a meeting

with 30 people and not recall it. So for her, when she meets

the Defendant at a restaurant with five people in preparation

for the arson several months later, she believes she's meeting

her for the first time. The Government didn't cross-examine

Sarah Wald because nothing about what she had said disproved
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2730

in any way what Lacey Phillabaum told you.

You heard a lot about Lacey Phillabaum. Mr. Bloom -- it

ranged from -- it ranged all across the spectrum. Mr. Bloom

made a big point again about how Lacey Phillabaum was dressed

when she came here, that it was all an act, that she wanted to

wear street clothes, and the Government said no, don't do

that, we want you to look pathetic, we want you to look

sympathetic to elicit sympathy from the jury.

Lacey Phillabaum addressed that when she was on the stand.

She said she had asked to wear street clothes and that she had

been told, you are in prison, you should look like you are.

If you try to look somehow different, you are trying to fool

the jury. There was no attempt to elicit sympathy, there was

no attempt to do anything improper. She was told to appear --

she was encouraged to appear as she was. If she were out of

prison like Jennifer Kolar, she would have worn street

clothes.

Mr. Bloom said that Lacey Phillabaum had admitted having

sex with Justin Solondz, or basically admitted having sex with

Justin Solondz. I think if you recall the testimony -- and

what Mr. Bloom and I say about it really isn't the test, your

memory is the test -- you won't find that Lacey Phillabaum

basically admitted that. You will find that Lacey Phillabaum

said she was in Justin's cabin/home, which is a very small

home, very briefly. She denied having sex.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2731

As she continued to be raked over the coals -- as

Mr. Bloom continued to question her, to ask the same thing

again and again to suggest that she had done this and crossed

the line, she snapped back at one point, but she never

admitted having sex with Justin Solondz, and to suggest that

she did, or that she basically did, mischaracterizes what she

said in this courtroom.

On a similar point, Mr. Bloom said Robert Corrina said his

wife used the rental car to take him to work that week.

Again, that mischaracterizes what the evidence was in this

case. Mr. Bloom suggested that. He suggested it with his

question. But Mr. Corrina's answer was not that she used the

car to take him to work that week. They had rented a car the

year before for Christmas, and he referred to that as possibly

a car in which that had happened.

So Mr. Bloom's question:

"Question: In fact, there came a time when you had

that car, that Kara took you to work in that car, on one

particular day; isn't that true?

"Answer: I don't remember.

"Question: Do you remember in reconstructing the

events with your wife that she reminded you that she took you

to work in that car one day?

"Answer: We couldn't figure out if that was the car

or if it was a car that we had rented for Christmas vacation."
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2732

So again, the description you've heard of the evidence is

not what the evidence was. Mr. Corrina did not say he'd been

taken to work in that car or that he had gone to work in that

car. Mr. Corrina's testimony was that he was home that day.

He didn't recall why, but that he was home that day.

Mr. Bloom talked a little about the Conger house, and he

referred to the testimony of Haila Silvertrees -- that's

Ocean's Mother -- and of Heather Moore, and he suggested that

their testimony showed that what Lacey Phillabaum had said

about seeing the Defendant playing the violin in the kitchen

one day, that that couldn't be true, and if you look back at

the testimony you will see that that's not the case either.

Each of them did describe some work in the kitchen over

the course of several months, but neither of them was clear

about when precisely that work took place. Neither of them

suggested that it was tremendously extensive work. Heather

Moore, I believe, talked about replacing a countertop.

There's nothing in what either of them said that shows the

Defendant could not have been playing the violin in the

kitchen on the weekend in which Lacey Phillabaum was at the

house.

Mr. Bloom talked about a check to Bill Wake. He said, why

are they showing you that? What are they trying to hint at?

What improper purpose are they pursuing? If you remember,

Mr. Wake is Justin Solondz' landlord, and one of the pieces of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2733

evidence that you have is a check written by Briana Waters to

him to pay the rent for Justin Solondz.

The Government is not trying to show anything improper by

doing that. The check is relevant in two ways. One,

Mr. Wake's memory of exactly when Justin Solondz rented that

cabin from him is not precise. He says it was for a period of

several months. When he sees the check, he knows that's the

time. So the check establishes when the rental took place.

It also shows some connection between the Defendant and Justin

Solondz. There's nothing improper about that. The Government

is not suggesting anything more sinister than the fact that

this is one more piece of evidence of a connection between the

two of them.

One of the most astounding things we heard was the

suggestion that the Government already had the Ralph's

Thriftway record. If you remember, Mr. Bloom said he thought

the Government had it, and the evidence is exactly to the

contrary.

Agent Halla was asked about that. He explained all the

steps that he went to with Ralph's to try to gather records,

about getting old data tapes for an obsolete system and going

to considerable effort to get data pulled off of those to find

out everything possible from Ralph's, and that he had failed

to do that and that he had not seen this record before trial.

Mr. Bloom's evidence to the contrary, the basis for his
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2734

claim that the Government had this record, is apparently the

fact that at one point in the question I referred to -- in a

question to Ms. Phillabaum, I referred to her driving to

Seattle during the evening of May 20th, and six or seven

questions later I used the word "night." Somehow this is

evidence that the Government had this record, that we hid this

record, that we knowingly concealed it for some purpose.

Ladies and Gentlemen, I talked a moment ago about the car

rental and how important that is as corroborating physical

evidence in this case. Every aspect of that rental provides

evidence that corroborates the testimony that you've heard

from Jennifer Kolar and Lacey Phillabaum and from Robert

Corrina: the timeframe, the mileage, the payment, the

subsequent bank records.

The car is rented midday on May 18th, a Saturday,

approximately a day before the arson. You saw records in this

case on cross-examination -- I am sorry, it's the 19th.

You saw records on cross-examination of what was done with

the car on the first day or so. Mr. Corrina told you that

they took it downtown, they went to get lunch at a local

restaurant, probably did that again Sunday. He lives a few

miles from downtown; we are probably talking about 20 or 30

miles to go in and out of town a couple times.

Mr. Corrina didn't go anywhere else. He didn't take any

trip. There's no charges on his credit card anywhere further
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2735

away than downtown Olympia, and his bank records which you

have and his credit card statements will show you that he

didn't have a tremendous amount of money. This is a $200

rental. He had no real purpose for the rental for himself,

and he obviously doesn't take the car anywhere.

It may be a minor perk to him to be able to use it to

drive downtown once, but it's not a rental that he's going to

make for that purpose.

Mr. Corrina told you that the next day, Sunday, the

Defendant showed up at his house, and she said that she felt

ill and she needed to go to the hospital. She wanted to take

the car, and that Justin Solondz was nearby and he would come

and he could drive her to the hospital.

They left the house in the evening. You know from the

testimony of Jennifer Kolar and the testimony of Lacey

Phillabaum what ended up happening with that car. You know

from the testimony of Lacey Phillabaum that they met the other

people involved in the arson in Olympia, including William

Rodgers.

The record that we have here is a record that shows that

at 7:12, the Defendant stopped in the Ralph's Thriftway a

couple blocks from Williams Rodgers' house and purchased

approximately $13 worth of something. I suggest to you that

four people are about to drive up to Seattle; it's probably

some soda and chips for the road.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2736

The testimony concerning when they arrived in Seattle,

Mr. Bloom referred to 8:00. Actually, Jennifer Kolar had

initially estimated 8:00 or 9:00. On direct, she said the

five of us who were involved met at the grill, probably around

9:00 at night, 8:00 at night. On cross-examination, she was

asked questions again about it, and she said approximately

8:00.

But considered as a whole, her testimony suggests

somewhere in the 8:00 to 9:00 region. Leaving Olympia at 7:12

is entirely consistent with that. There's no reason to

believe that that car went anywhere else, that it went to the

dumpsters before it went to the Greenlake Bar & grill. If you

leave Olympia at 7:12, according to the testimony you heard

this morning, you'd be in Seattle at the Greenlake Bar &

Grill, on a normal night, at 8:20.

You heard a lot of testimony suggesting that traffic was

bad, there was road construction, things like that. Even if

that slowed you up a few minutes, first, it's probably not

something they planned on, they probably figured they'd be

there around 8:20 and, second, nothing inconsistent was asked

about planning to meet there at 9:00.

So that car rental record does nothing to show that the

Defendant is not part of this conspiracy, that things did not

happen in exactly the way Jennifer Kolar and Lacey Phillabaum

said it happened.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2737

I submit to you that the real proof is what happened with

that car rental record, because although the Government didn't

have it before trial, the defense did. If what we were

talking about is a plane ticket to New York, proof that the

Defendant was in New York, don't you think they would have

called us a minute after they got it and said: "We've got the

proof our client is innocent. We don't need to have a trial."

But what actually happened with it is, the defense waited

and sprung it at trial in an attempt to somehow ambush one of

the witnesses to find something inconsistent. The fact that

that record was not presented when it was found is the

clearest proof that it is not in any way evidence that the

Defendant is innocent. It's entirely consistent with her

being guilty.

In addition to the time records, the mileage on this car

also fits exactly what it should. Mr. Corrina probably used

approximately 30 miles just going downtown and back. I think

his testimony was that it was about 9 miles from his house to

downtown. That may be incorrect.

The round-trip to Seattle is approximately 130 miles. If

you add in a round-trip from there to the University, probably

two round-trips if one is to stash equipment after the initial

trip up to the Greenlake Bar & Grill, you would end up very

near the mileage that we have, just over 200 miles.

The payment also shows that what you've heard about that
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2738

car is what happened with it. Justin Solondz -- if you look

at his bank records -- and Mr. Bartlett showed you those

earlier -- there was a $200 cash withdrawal on May 19th --

MR. BLOOM: Excuse me, it is not in evidence.

MR. BARTLETT: It is in evidence.

MR. FRIEDMAN: Thank you, Your Honor.

MR. BLOOM: I am mistaken then. I am sorry.

MR. FRIEDMAN: If you look at the bank records, you

will see a $200 cash withdrawal that morning. The rental

charge is $187.87. So that $200 cash withdrawal matches

almost perfectly. The other interesting thing is, if you look

at Justin Solondz' bank records, $200 isn't a normal amount

for him. That's the first time that year that he's withdrawn

$200. $200 is exactly the amount of money that gets deposited

into Mr. Corrina's bank account a week later.

So Justin Solondz is pulling out $200 to cover the cost of

the car rental. Either he or the Defendant give it to

Mr. Corrina. A few days later, Mr. Corrina makes it to the

bank and deposits the money. Financial records show that that

is why Mr. Corrina rented this car.

He didn't have the money to be splurging on a car for no

real purpose, for himself. He's being paid for the car, to

cover the cost of the car rental, because that rental is not

for him; it's for someone else. As he tells you, it's for the

Defendant, and it's a car that she took that night, and she
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2739

took it to commit the arson at the University of Washington.

Over the last couple of days, Ladies and Gentlemen, we

heard from a number of witnesses who came in and talked to you

about the Defendant's character -- her character for

nonviolence -- and they said a number of other things about

her, generally very complimentary. The Government -- that's

important evidence, as Mr. Bartlett said.

Obviously, you will consider that. But none of the

evidence that you heard from the Defendants involved facts

that showed or tended to show the Defendant was innocent of

this crime. There was no factual evidence that rebutted or

undercut the Government's case, the Government's evidence.

One thing that was interesting about that evidence is how

similar it showed the Defendant was to Lacey Phillabaum. You

heard a lot of evidence about Watch, about being a peaceful

activist. If you think back to Lacey Phillabaum's testimony,

she told you that she spent years working for Oregon Tilth,

which is an organic certification organization. Basically,

pro environmental work and peaceful and good work.

Both of them moved from there or became involved in

actions a little less innocent. Lacey Phillabaum told you

about a plan to take over Cargill's offices as part of an

environmental protest, and you've heard the evidence about

what happened at the Watch campaign, how people working on

that campaign came up to Seattle and basically invaded Plum
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2740

Creek's offices.

Lacey Phillabaum told you that she was involved in WTO.

You know the Defendant was involved in that because you heard

from the professor who talked about the fact that that

interfered with her progress on her documentary.

Lacey Phillabaum told you about being invited to the book

club and how she was basically recruited through there by

William Rodgers. The Defendant wasn't at the book clubs

because she had a close direct relationship with William

Rodgers; he just recruited her directly.

Lacey Phillabaum told you that it took her six years to

cross the line, to go from being a peaceful, non-violent

activist to finally committing that arson.

There's one big difference, though, because Lacey

Phillabaum has accepted responsibility for what she's done.

After seeing her testimony, clearly she feels tremendous

remorse. She's doing what she can to make the situation

better.

She talked from the stand, and you saw the quote earlier

about the fact that her main motivation is what she feels is

her moral obligation to the researchers, to try and make up to

the people she hurt by her actions.

The Defendant is exactly the opposite. When she took the

stand, she told you a lot of things that just don't mesh; a

lot of things that just aren't true. She told you about the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2741

New York Times quote. She didn't deny that she said that.

She said she never would have meant anything like that. She

told you she hadn't seen the article when it came out. That

doesn't make any sense. If you are in the New York Times,

particularly if you are in the New York Times and you are

young, you'd remember that.

Tiffany Tudder knew about it. She told you about how she

found out about the article. Do you think Tiffany Tudder

didn't have a copy of it and showed it to the Defendant? The

Defendant said she was close to William Rodgers, and we've

heard a lot of talk about these phone calls and oh, it's just

an average of one a week.

If you look at that list, first, they are not spread over

a year. The calls are over a space of approximately three or

four months, so we are talking about several calls a week.

But second and more important, the Defendant is the person

Williams Rodgers is calling the most often, the person who is

the closest to him.

The Defendant supposedly is passionate about environmental

activism, and you know that William Rodgers is. This is

William Rodgers' focus. Yet, the Defendant would have you

believe they didn't talk about that.

The Ralph's purchases. The Defendant went to Ralph's and

made point of sale purchases four times in 2001, all of them

within a space of four days, from May 17th to May 21st; four
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2742

times in the whole year.

Initially, when she was asked about it, she said that she

was there all the time, she babysits for someone near there,

there is band practice, and stuff like that. She looked at

the records; there's no other point of sale purchases all

year. The reason the Defendant is there that week is she's

working closely with William Rodgers, preparing for the arson.

Finally, the folder with the document, Exhibit 614. The

Defendant would have you believe that she gave a manila folder

to Jennifer Kolar, that she wrote a note on it saying here's

some articles to read, and there is a stack of articles in

there. Those aren't the articles that she gave Jennifer

Kolar. She gave an entirely different set of articles on, I

believe it was, women activism; and at some point Jennifer

Kolar must have pulled those articles out and subbed in a

different set of articles, the anarchy articles, and put them

in the folder -- although Jennifer Kolar told you that's not

what happened -- and somehow Jennifer Kolar had a set of

articles to sub in that had Justin Solondz' fingerprints all

over them. Jennifer Kolar told you she doesn't even know

Justin Solondz -- or she barely knows Justin Solondz.

Does that story make any sense?

The reason the Defendant is lying to you about these

things is she knows that this evidence is significant. It's

important. So she lied to you about each of those pieces of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2743

information.

She did it in a way that was very carefully planned and

carefully crafted. Remember, Jennifer Kolar had initially not

read the articles. She basically took the set of articles and

put it in a tub somewhere. Jennifer Kolar apparently thought

they were about women activism. It wasn't until preparing for

trial that Mr. Bartlett asked her to read the articles, that

she read them and found out that's not what they were.

Let me put it to you -- have you ever heard the phrase

women activism, or articles about women activism? The reason

the Defendant says these are articles about women activism is

that she's read a report of Jennifer Kolar's interview where

Jennifer Kolar said articles about women activism, so in

tailoring her story, she picked that phrase.

It's a phrase you never would come up with if you weren't

trying to tailor your story to fit the facts; to minimize, to

escape, but to fit the little pieces that you can.

The Defendant hasn't just lied to you herself. She hasn't

just denied blame herself or refused to accept responsibility.

She's attacked each of the people -- each of the important

witnesses who have testified against her in this case.

Lacey Phillabaum -- she has accused Lacey Phillabaum of

being an unprincipled slut. You've seen cross-examination

about Lacey Phillabaum's sex life, about her supposed preying

on men or stealing other women's men.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2744

Jennifer Kolar. Jennifer Kolar was outed on the stand.

And Robert Corrina, the cousin who initially tried to

protect her. Robert Corrina, you hear, is making up stories

and she doesn't know why he'd make up stories.

Ladies and gentlemen, there is no evidence to support what

the Defendant has said about Jennifer Kolar, about Lacey

Phillabaum, or about Robert Corrina, except the Defendant's

own words.

For Jennifer Kolar, there's no collection of love letters,

no collection of e-mails. Even the one gift, the necklace,

which she supposedly returned. Nothing but her word to say

that Jennifer Kolar professed her love for her and the

Defendant turned her down, and that's why Jennifer Kolar is

bitter.

Justin Solondz -- he's not around to say he had an affair

with Lacey Phillabaum. All you have is the Defendant's word

that Justin Solondz admitted to her that he had such an affair

and then the Defendant's claim that she confronted Lacey

Phillabaum about that. There is absolutely nothing to

corroborate -- not a piece of physical evidence to corroborate

what the Defendant has told you about these women.

Briana Waters may not look like what you expected when you

got your jury summons, when you first came into the room --

didn't know anything about the case except that it was

probably a criminal case. She may not look like what you
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2745

thought a criminal defendant would look like, but as

Mr. Bartlett said, we are a nation of laws and one of the

basic principles is that everyone is treated the same, whether

they look sympathetic, whether they look unsympathetic.

You took an oath to do that, and I know you will follow

that oath. The evidence in this case has shown beyond any

doubt that the Defendant participated in this conspiracy, that

the Defendant was one of the people who went to the University

of Washington, the Center for Urban Horticulture, on May 21st

of 2001 and burned that building down.

I'd ask you to return a verdict consistent with that

evidence, a verdict finding the Defendant guilty of

conspiracy, guilty of arson, guilty of the crimes with which

she is charged.

Thank you.

THE COURT: All right. Now I am going to eliminate

two of you, as I indicated. I will have the clerk now put the

names in the wheel and she will draw out two. Those two will

be excused.

When you are excused, of course, you won't be part of the

deliberations but you will still be part of this jury, which

means that you are not to talk about this case or do anything

about it until after this matter is over with.

I never know if I may need you because something may

happen or any other reason. So the same admonitions you've
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2746

been given during the course of this trial, you will be held

to that standard.

All right.

THE CLERK: Tera Hammermeister and Sean Thompson may

be excused.

THE COURT: All right. Are there any instructions

for them as they go through to pick up their belongings and to

the clerk's office?

THE CLERK: There's two certificates on the table,

and leave their badges.

THE COURT: Steve, let me know when they have

cleared.

Of course, you 12 will be the ones that will deliberate

and decide the case.

The hour now is 6:00, and so the same admonition that I

have been giving you throughout this trial will be in place as

you go about your evening. You are not to discuss the case in

any way until all 12 of you are in that jury room together.

Now I have to treat you like sheep. You all have to do

things together, smoke together, stand around together and do

what you do. That will be the system until you decide the

case.

Now, all of the exhibits will be brought into the jury

room, along with the instructions that I gave you. All of

that before you start.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2747

Now, you can do it this way. You can tell me -- I know I

kept you here later than I normally do. In terms of reporting

back to the jury room, are you able to report back at 9:00 to

begin? All right. Then I will have you report to the jury

room at 9:00.

All of these items that I have talked about -- and when

they have been cleared with the attorneys -- they will be

there waiting on you. You are not to start any discussion,

anything about this case, until all 12 of you are in that

room. You will each know what the other person is doing, what

you are talking about, and that's how you will make your

decision.

So I will have you then excused, as you go through the

jury room and report at 9:00 to begin deliberations.

You can take your tablets now, but leave the tablets in

the jury room until you come to pick them up tomorrow.

(Jury departed at 6:00 p.m.)

THE COURT: All right. We will recess this matter.

What I want you to do, the attorneys, is to come and make

sure that everything that goes into that jury room has been

approved and admitted and all of that. I want the two of you

to have that responsibility. If there's any dispute about it,

we'll deal with that.

MR. FOX: Your Honor, I know it's very late. I have

one matter very briefly that I would like to put on the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2748

record.

THE COURT: All right. You may be seated.

MR. FOX: Two things. With regard to Justin Solondz'

bank account records, where there was an objection in the

course of testimony, my records that I got -- the Government's

Amended Exhibit List from the clerk -- shows that Exhibit 745,

which is statements of the bank account belonging to Justin

Solondz, was never admitted into evidence. Maybe I am wrong.

MR. BARTLETT: I checked the record last night, and I

had it as admitted.

THE COURT: Let me find out what we are talking

about.

THE CLERK: We have a stipulation for the records.

MR. FOX: Well, there was a stipulation with regard

to the custodian of records, that we would not require the

custodian to come in, but I don't believe that these records

were ever offered or admitted.

THE COURT: Do what I ask you to do. Come over with

her and let's go through it, and we'll find out. You talked

about everything that's been reserved on --

MR. FOX: Well, I guess the reason why there was the

objection is that these were not records that were admitted

into evidence.

THE COURT: The question is: Are they admitted as an

exhibit -- admitted or not?
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2749

MR. FOX: They are not.

THE COURT: Then come over and check it through with

the clerk, and we will find out. If I have to deal with it, I

will deal with it. That's what I am asking you to do, to come

here and determine what should be going to this jury.

MR. FOX: Sure. I just want to put on the record the

reason for our objection is that we didn't see that on the

clerk's list.

The other thing, Your Honor, I would move for a mistrial

based on the rebuttal argument of Mr. Friedman, because he

started out basically by saying that to find Ms. Waters

innocent, you have to find these five people were lying, and

that is not the standard.

The jury doesn't have to find anyone is lying. They have

to find that there's reasonable doubt that what they say is

true, and there are cases that have reversed convictions where

that precise argument has been made.

THE COURT: Well, you make the record, but I am

denying the motion. The jury will decide the case. You have

made your record.

MR. FOX: Okay.

THE COURT: And then the two of you come and deal

with that exhibit. I will be in recess, but I will be close

by if --

MR. BLOOM: Your Honor, 10 seconds. I think we may
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2750

have some other objections, but they can wait until the

morning.

THE COURT: All right. I can meet you here at 8:30

like usual.

MR. BLOOM: 9:00 would work. I think it will just

take a moment.

(The Court recessed to Friday, February 29, 2008, at

the hour of 9:00 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