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2817

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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

)

Plaintiff, ) Tacoma, Washington

) March 4, 2008

vs. )

)

BRIANA WATERS, ) VOLUME 16

)

Defendant. )

)

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE FRANKLIN D. BURGESS

SENIOR UNITED STATES DISTRICT COURT JUDGE, and a Jury.

APPEARANCES:

For the Plaintiff: MARK N. BARTLETT

ANDREW C. FRIEDMAN

Assistant United States Attorney

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

For the defendant: ROBERT BLOOM

Attorney at Law

3355 Richmond Boulevard

Oakland, California 94611

NEIL M. FOX

Cohen & Iaria

1008 Western Ave., Suite 302

Seattle, Washington 98104

Court Reporter: Teri Hendrix

Union Station Courthouse, Rm 3130

1717 Pacific Avenue

Tacoma, Washington 98402

(253) 882-3831

Proceedings recorded by mechanical stenography, transcript

produced by Reporter on computer.
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2818

TUESDAY, MARCH 4, 2008 - 11:50 A.M.

* * *

(Jury not present.)

THE CLERK: This is in the matter of United States

versus Briana Waters, CR05-5828FDB.

Counsel, please make an appearance for the record.

MR. FRIEDMAN: Good morning, Your Honor, Andrew

Friedman and Mark Bartlett for the United States.

MR. FOX: Good morning, Neil Fox and Mr. Bloom for

Ms. Waters.

THE COURT: All right, this is another note that came

out from the jury at 11:25 this morning, March 4. The

question reads: " Do we need to reach a unanimous verdict on

each count?"

Well, I thought this was well addressed in the

instructions about each count was a separate charge, and they

had to make a unanimous decision on each count. As I look

through the instructions, Instruction No. 11 and No. 30 are

dealing with it, as well as the verdict form is dealing with

with it.

I will hear from you as to the answer. It seems to me the

answer, of course, is yes. I guess the underlying question in

this thing in order to convict, it sounds like -- I don't know

if that's what they are saying, you don't need a unanimous on

anything else.
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2819

MR. BARTLETT: It could be acquit or guilty.

I would suggest the following language to help them: "In

order to return a verdict on a count, you must reach a

unanimous verdict on that count."

THE COURT: Well, that's what they said, do you need

to reach a unanimous verdict on each count?

MR. BARTLETT: That is the language I would suggest

the Court give them. I think that is the law, and that will

answer the question directly.

THE COURT: Well, that's different than yes?

MR. BARTLETT: I think it is a little different than

yes, Your Honor.

THE COURT: All right.

MR. FOX: Your Honor, we would suggest language to

the effect of: "To reach a verdict on any count, you need to

be unanimous." But I would go further and say, "however, you

should not surrender your conscientiously held beliefs simply

to reach a verdict."

THE COURT: I have said that in the instructions. I

don't want to say that again. I am trying not to point to any

specific instruction. I don't have the instructions here

before me but I think it said -- is that what it said?

I don't intend to write a new instruction, like start adding a

lot of things to it. Look at Instruction No. 30. I think

that is saying all of what you are saying. You don't give up
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2820

your position because --

MR. FOX: You are right, Your Honor, it is in there.

THE COURT: Then about No. 11, if you look at that,

it talks about a separate crime is charged. You must decide

them separately. You must find these beyond a reasonable

doubt.

No. 30, I just talked about. What else is there, other

than perhaps reread, refer back to your instructions, without

singling them out, one or the other; but it is there.

Anything else you want to add?

MR. FOX: No, Your Honor.

MR. BLOOM: I think what you are saying, you don't

want to refer them to a specific instruction.

THE COURT: That's correct, because I told them to

consider the instructions as a whole, and that's what I want

them to do.

MR. BLOOM: Would the language be: "Please reread

your instructions."?

THE COURT: I am saying as to a unanimous verdict,

"yes," I guess kind of answers that; but I am also telling

them -- I don't know what they are asking. Well, unanimous

verdict can only go to conviction.

MR. BARTLETT: It can go to acquittal too, Your

Honor.

MR. FOX: I guess they don't need to reach a
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2821

unanimous verdict on any count.

THE COURT: They could come somewhere in between and

you get no decision; but I am talking about trying to answer

this question, and answering it with some neutrality in it so

they can go and keep doing their job. The answer is "yes," I

suppose, "read your instructions."

MR. BARTLETT: The answer really isn't yes, though,

because if you say the answer is "yes," then you are telling

them they have to reach a verdict; and that actually is

inaccurate.

The real answer is: "In order to reach a verdict, it must

be unanimous." I know it's a subtle difference, but it really

is a difference.

MR. FOX: And I guess --

THE COURT: I have said that in the instructions, so

maybe the answer is just reread your instructions.

MR. FOX: That's probably accurate.

THE COURT: I know it takes them around a long way,

but at the same time, if you are saying that "yes" won't

fit --

MR. BARTLETT: It won't.

THE COURT: Then that's the answer, "reread your

instructions," because when you look at the instructions, the

answer is there, how they are to apply them to the facts.

MR. FOX: Okay.
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THE COURT: Okay. Let's take a break and I will

compose something, and I will run it back by you and see if

you agree.

MR. FOX: I just wanted to make a record that we

filed this morning additional articles that came off the

Internet.

THE COURT: That's supplementing your motion?

MR. FOX: That's right, and at this point we are

renewing our motion based upon everything we said yesterday

and the addition of the materials.

THE COURT: All right, and I am still denying any

mistrial, but you made your record.

Okay, let me do this. We are at recess.

THE CLERK: All rise, Court is in recess.

(Court recessed at 11:57 a.m. pending further

deliberations.)

* * *

(Back in open court at 4:30 p.m.)

THE COURT: All right. You may be seated. I guess

they are ready to go for another day.

Anything we need to take up before I bring them in?

MR. FOX: I would ask the Court give them the same

admonition yesterday at closing, that the jurors not look at

any media, TV, radio, to avoid -- the stories that we have

been referring to, have been all over the media today. They
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are the lead stories, front page news in the Seattle Times.

And I would ask the Court to give those admonitions.

THE COURT: All right. Bring them in.

(Jury present.)

THE COURT: You may be seated. Good afternoon. It

is my understanding, now, that you have done enough work for

the day and you want to go home and start again in the

morning.

All right, so we will have you do that and of course

report back in the jury room at 9:00 in the morning.

As always, I keep saying this, don't discuss the case.

Don't research. Don't do anything. Don't turn on your TV.

Don't read anything. If it sound anything close to this, run

the other way and do all those kinds of things.

Everything you need to decide this case, you have there in

that jury room. That's what I want you to consider to do that

job.

So, with that, I will see you back here at 9:00. You are

not to begin work until you are all there.

(Jury excused for day at 4:32 p.m.)

THE COURT: All right, you may be seated. If there's

nothing else, we are at recess.

Same thing, of course, by 10:00 make your contact. Let us

know where you are so you can be here within 15 minutes, if

necessary.
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THE CLERK: All rise, Court is adjourned.

(The Court recessed to Wednesday, March 5, 2008, at

the hour of 10:00 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