742

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

THE HON. MICHAEL J. McSHANE, JUDGE PRESIDING

UNITED STATES OF AMERICA, )

)

Government, )

)

v. ) No. 6:14-cr-00482-MC-1

)

DANIEL STEPHEN JOHNSON, )

 )

Defendant. )

___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

EUGENE, OREGON

TUESDAY, MAY 8, 2018

VOLUME 5A - MORNING SESSION

PAGES 742 - 821

 Kristi L. Anderson

 Official Federal Reporter

 United States Courthouse

 405 East Eighth Avenue

 Eugene, Oregon 97401

 (541) 431-4112

 Kristi_Anderson@ord.uscourts.gov

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 1 of 80
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APPEARANCES OF COUNSEL:

FOR THE GOVERNMENT:

Jeffrey S. Sweet

United States Attorney's Office

405 E. Eighth Avenue, Suite 2400

Eugene, OR 97401

541-465-6771

Fax: 541-465-6917

Email: jeff.sweet@usdoj.gov

Lauren E. Britsch

U.S. Department of Justice

Criminal Division

1400 New York Ave NW, 6th Floor

Washington, DC 20530

202-514-2220

Fax: 202-514-1793

Email: lauren.britsch@usdoj.gov

Ravi Sinha

United States Attorney's Office

1000 SW Third Ave, Suite 600

Portland, OR 97204

503-727-1014

Fax: 503-727-1117

Email: ravi.sinha@usdoj.gov

FOR THE DEFENDANT:

Craig E. Weinerman

Office of the Federal Public Defender

859 Willamette Street, Suite 200

Eugene, OR 97401

541-465-6937

Fax: 541-465-6975

Email: craig_weinerman@fd.org

Lisa A. Maxfield

Pacific Northwest Law LLP

1255 NW Ninth Avenue, No. 11

Portland, OR 97209

(503) 222-2661

Fax: (503) 222-2864

Email: lamaxfield@pacificnwlaw.com

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 2 of 80
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WITNESS INDEX

WITNESS DIRECT CROSS REDIRECT RECROSS

VS XXXXXXXXXXXXX 755 778 785 789

 790

Brian Poole 792 811

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 3 of 80
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PROCEEDINGS

TUESDAY, MAY 8, 2018

THE COURT: Morning, everybody.

MR. SINHA: Morning, Your Honor.

THE COURT: I understand there was a preliminary

matter we were going to discuss.

MR. SINHA: Yes, Your Honor. I think it regards

the one image of potential child pornography that the court

allowed.

THE COURT: Correct.

MR. SINHA: And so I think Mr. Johnson's counsel

has an issue he would like to raise.

MS. MAXFIELD: Good morning, Your Honor. Lisa

Maxfield appearing with Mr. Johnson.

I was not here on exhibit day, so I am kind of

getting filled in from both sides.

It is my understanding that the government intends

to introduce a photograph that the government maintains

would corroborate or support the testimony of VS XXXX

XXXXXXXX. It's my understanding that when VS XXXX was

interviewed by the FBI -- and I think other people as

well -- he described a photograph that's taken during anal

sex. And he describes a photograph that depicts his butt

and the defendant's penis in his butt. He's very clear that

you can see hair in the photograph. And the other thing

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 4 of 80
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that he is very clear about is that there's no face in the

photograph.

The government intends to introduce a photograph

that includes no hair -- again, it's this overlay -- but

also includes a face. I think what the government believes

is that based on the court's ruling, if the witness

describes a photograph being taken, that that's a sufficient

foundation to introduce any photograph.

We believe that the witness should be examined

outside the presence of the jury for us to determine, first

of all, what he remembers seeing in the photograph as

clearly and with as much detail as possible. And then I

think we need to determine -- and I am still listening to

them saying they don't want to show this photograph to him.

And if that's the case and the court rules that that's the

route we are going to go, then I think that the inability to

show him the photograph is something that should work

against the government and not against Mr. Johnson.

But I think that when we are done with the

testimony, that what he describes is not going to match the

exhibit that the government wants to introduce.

THE COURT: All right. It's been quite a while

since I have looked at the exhibits and so, to be honest, I

don't remember what it looks like. Let me take a look at

it. My understanding is it is not necessarily the witness

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 5 of 80
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who will be testifying -- the photograph is not necessarily

a photo of him but would corroborate his testimony that

Mr. Johnson took photos during anal sex.

MR. WEINERMAN: And Judge, while you are looking

at the photograph --

THE COURT: Could I ask, has the government

clarified with the witness whether this is him or not?

I mean, obviously if it's -- that would be -- I

don't think we would be having an argument if it were him.

But I am assuming that the government is moving to introduce

this to corroborate his testimony that pictures were taken

during anal sex.

MR. SWEET: To answer the court's first question,

we have not shown VS XXXXXXXXXXXXX this picture, Your Honor,

and we very much do not want to. He -- I think he's been

having a tough time with this, and to -- we haven't

discussed the existence of this photograph with him. And we

very much so do not want to show it to him and let him know

that what may or possibly may not be a picture of him being

sodomized exists.

So to answer the court's question, we have not.

A couple quick things to clarify.

First, VS XXXX described the picture was taken on

Mr. Johnson's white iPhone. This image was found on

Mr. Johnson's white iPhone. He described it as -- I

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 6 of 80
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disagree that VS XXXX described the picture as showing a

hairy penis. I believe he just said that Mr. Johnson's

sexual equipment is hairy.

He did say, when asked if -- did you see your face

in the picture, he said no. And the picture showed -- it

only showed my butt in which he put his sex organ.

Your Honor, I don't know how long he had to look

at the photo or how many photos exactly were taken, but that

is not the clearest picture of anyone's face in the photo.

It's a half of a face.

So, again, the government cannot say definitively

that is VS XXXX in this photo with Mr. Johnson. We have

what we have.

But the sex act that VS XXXX describes, the

photographing of it on the white iPhone, the recovery of

this picture, which even the defense's experts agrees

appears to be a scrotum at the bottom with a small

triangle -- well, this is me adding this -- a small triangle

of flesh next to the scrotum and a boy's face or human's

face at the top, it appears to be consistent, your Honor,

and we believe it should be admitted.

We very much believe that VS XXXX should not be

required to identify this to do so.

THE COURT: Okay.

MS. MAXFIELD: Your Honor, VS XXXX tells FBI

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 7 of 80
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Martha that there's a single photograph taken. She asks him

specifically whether there was more than one photograph. He

tells FBI Martha that there was only one.

Then when asked to describe it, he says his sex

organ is hairy. "His sexual equipment is hairy. His sexual

equipment is hairy."

And then she asks him again what he would see in

the picture. And he says -- she says, "Did you see your

face in the picture?"

Answer: "No."

"Tell me what the picture shows."

And he said, "It only showed my butt, in which he

put his sex organ. The picture only shows my butt with his

penis in, with his sexual thing in."

So we have a single picture. He describes

Mr. Johnson's equipment being hairy, and then he describes

the fact that his sex organ is in his butt. And he is very,

very clear about the fact that his face is not in the

picture.

THE COURT: I am not disagreeing that this may not

be a picture of the witness, but I have never ruled that

they had to establish that this is a picture of the witness.

The defense, the best I can understand, is none of

this happened. This child is lying because he wants to get

some benefit. He wasn't sexually abused. No photos were

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 8 of 80
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taken.

And yet, there are photos on the phone that

corroborate the fact that sexual photos were taken on this

phone. And that does seem to corroborate the testimony of a

boy who is saying, "I was sexually abused and photographs

were taken during anal sex by Mr. Johnson with his phone."

And, lo and behold, here is a picture.

MS. MAXFIELD: That's not the inference the

government is going to ask them to draw.

THE COURT: That's the only inference I think they

can draw, not that it is the witness himself.

MS. BRITSCH: We intend to admit this photo

through a computer forensics examiner who will simply talk

about the technical aspects of the photo today, and I don't

think we intend to ask the jury at this time to draw any

inference.

MR. WEINERMAN: What the heck? I might as well

weigh in a little bit.

So, Judge, I guess I would just go back to the

basics, 403, which allows the court to exclude evidence.

And I am not trying to be pedantic. I know the court knows

the rule.

But besides undue prejudice, it talks about

confusing the issues, misleading the jury, undue delay,

wasting time, and needlessly presenting cumulative evidence.

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 9 of 80
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You know, it seems to me that this photograph -- first of

all, it's overwritten by -- almost 90 percent of it is not

there. And it takes, to me, a bit of imagination to say

that this shows a sexual act. Reasonable people might

disagree. But when 90 percent of the photograph is not

there, it is going to take a little imagination.

So why risk misleading the jury, confusing the

jury, wasting time? If this does not corroborate the one

incident that this witness says occurred when an iPhone was

taken -- and the description that Ms. Maxfield just read is

not corroborated by this this photograph. If the court is

saying it in general corroborates, corroborates what and who

and when and how?

THE COURT: It corroborates the testimony of a

witness you are accusing of lying and making up a story that

includes photographs on a phone.

MR. WEINERMAN: And I would also point out to the

court that there's going to be a stipulation that -- and I'm

sure counsel will correct me if I am wrong -- that APLE

reported to the FBI that there were no photographs taken.

And one of the witnesses who is the subject of that

statement is this witness, VS XXXX.

So, you know, again, we just have so much

conflicting information. And for this one photograph to

come in, it just seems to me it's classic 403 and the court

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 10 of 80
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shouldn't allow it.

THE COURT: Well, I wouldn't say it's -- you know,

I did balance the 403 concerns when I disallowed the

government from bringing in all the photographs, which, when

viewed as a whole, appear, I think in most people's

imagination, to be a series of pornographic child photos.

And I felt that that was unduly prejudicial.

But this one photo I think does corroborate a

witness whose veracity is being challenged by confirming

that in fact there is one photo on Mr. Johnson's phone that

suggests -- maybe my imagination is greater than yours,

Mr. Weinerman, but it suggests that the photos were taken

during sex acts.

So I am allowing one photo in. I mean, I came

very close to allowing them all in, but I think the defense

has changed enough to still convince me that all the photos

at this stage do not come in.

But this one exhibit can be introduced following

the testimony of the witness through the forensic expert. I

think it's a tough argument if you are not going to ask the

witness himself, "Is this you?" It's a tough argument for

you to make at closing that this in fact is the witness.

All right. Okay. In terms of scheduling today, I

have a longtime -- Char, this exhibit is about to fall, so I

will hand that to you.

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 11 of 80
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I scheduled a quick meeting with a federal judge

who is visiting from the Eastern District of New York, who

is a very close friend of mine. He is flying in at 12:30,

so sometime early afternoon. One option is to take a late

lunch if we have witnesses who can go into the lunch hour.

But I do want to try to accommodate Judge Block and have a

moment to visit with him.

Probably about one o'clock -- well, maybe he is

being overly optimistic. Getting here about 1:00, probably

1:30. So we will be taking a short break. I will try to

keep it short, but I do want people to know that's going on

this afternoon.

So who is our first witness?

MR. SINHA: It's actually VS XXXXXXXXXXXXX, Your

Honor.

THE COURT: Okay. If you want to get him, we'll

get the jury.

MR. SINHA: Oh, Your Honor, just to be clear, I

was just going to ask, could we inquire as to whether

defense counsel is going to show VS XXXXXXXXX this photo

because we would ask them not to. I guess I don't know if

we can stop them or not.

MR. WEINERMAN: Mr. Sinha must be a mind-reader

because we are talking about that right now.

THE COURT: I don't think I can stop them from

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 12 of 80
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doing that. I mean, is there -- do we have some counselor

on the wings who can go over this with him in advance of his

testimony?

MR. SINHA: We could take a break, and I could go

in with an agent and try to talk to him about it and we

could try to get an answer. I guess that's right. If we

could do that after he testifies.

THE COURT: We can do that. So before cross, I

guess I'd like him to look at it without being traumatized

on the stand, maybe he can just at least digest the fact

that he is going to have to talk about it.

All right. Okay. Let's bring in the witness and

we'll bring in the jury.

(Jury in.)

THE COURT: And if you can just continue standing

after I tell everybody else to sit down, we are going to

have you sworn to tell the truth. And then you will be

asked to state your name and spell your name.

Are you having any difficulty understanding the

translator?

THE WITNESS (By the interpreter): No.

THE COURT: All right. Please be seated,

everybody.

All right. If the government -- if you could go

ahead and introduce who we are calling as a witness, and

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 13 of 80
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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

we'll have you sworn in.

MR. SINHA: Your Honor, the government's next

witness is VS XXXXXXXXXXXXX.

THE COURT: All right. Ms. Pew, please go ahead.

THE CLERK: Would you please raise your right

hand.

(The witness was sworn.)

THE CLERK: Could you please state your name for

the record.

THE WITNESS (By the interpreter): VS

XXXXXXXXXXXXX.

THE CLERK: Can you spell your first and your

last.

THE WITNESS (By the interpreter): In Cambodia?

MR. SINHA: Yes.

THE CLERK: Be seated.

THE COURT: You can have a seat.

DIRECT EXAMINATION

BY MR. SINHA:

Q. So good morning, VS XXXX.

MR. WEINERMAN: Judge, I am sorry to interrupt

again, but could we move the volume up a little bit.

THE COURT: Yes. VS XXXXXXXX, if you could move a

little closer towards the microphone.

JUROR: And I didn't hear his name.

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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

THE COURT: All right. His name is VS XXXX.

Could you spell it for us, VS XXXXXXXXX.

MR. SINHA: Sorry, Your Honor. I think the way

that we have been spelling it is VS XXXXXXXXXX, and then

last name VS XXXXXXXXXXXX.

THE COURT: Thank you.

All right. And VS XXXX, if you don't understand

any question, please ask Mr. Sinha to clarify. Okay?

MR. WEINERMAN: Judge, can we ask that the water

pitcher be moved as well. It's kind of blocking.

MR. SINHA: May I approach, Your Honor?

THE COURT: Yes.

MR. WEINERMAN: Thank you.

BY MR. SINHA:

Q. Okay. So good morning, VS XXXX.

Let's start here: Outside of being known as

VS XXXX, do you have of any nicknames at all?

A. (By the interpreter) No.

Q. Do people sometimes call you VSX or VS X?

A. (By the interpreter) Yes.

Q. Okay. And so tell me, VS XXXX, where were you born?

A. (By the interpreter) Pream Ro.

Q. Okay. And is that in Cambodia?

A. (By the interpreter) Yes.

Q. Is this your first trip outside of Cambodia in your

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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

life?

A. (By the interpreter) Yes.

Q. VS XXXX, I am going to show you what's been marked as

Exhibit 150.

MR. SINHA: I believe this has been admitted. I'd

ask for this and all of the other exhibits which I think

have been admitted to be published.

THE COURT: All right.

BY MR. SINHA:

Q. So VS XXXX, when this comes up, you are going to see it

on a little screen down in the corner here on the left. I

am going to try to zoom up on it a little bit.

So do you know what this is?

A. (By the interpreter) Passport.

Q. Okay. And is it your passport?

A. (By the interpreter) Yes.

Q. Okay. And the date of birth on this passport, it looks

like it's XXXXXXX, 2002. Is that your date of birth?

A. (By the interpreter) Yes.

Q. Okay. Is the year correct?

A. (By the interpreter) The year is not correct.

Q. What's your actual year of birth?

A. (By the interpreter) 2000.

Q. Okay. Do you know why the year on this passport is not

right?

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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

A. (By the interpreter) Because the date of the birth

certificate was incorrect.

Q. The birth certificate was incorrect.

VS XXXX, where you grew up and where you were born

in Cambodia, was it very rural?

A. (By the interpreter) Yes.

Q. Did people keep very -- did the government in that part

of the country keep very precise records about when people

were born?

A. (By the interpreter) Not very accurate.

Q. And was it your understanding that in that part of the

country people's birth records were sometimes the wrong

birth date on them?

A. (By the interpreter) Yes.

Q. Okay. And so just so I am clear, is your actual birth

date the same month, XXXXX, and the same day, the XXX, but

the year is 2000?

A. (By the interpreter) Yes.

Q. And so VS XXXX, where you grew up, what did your

parents do?

A. (By the interpreter) Farmers.

Q. Both of them were farmers?

A. (By the interpreter) Yes.

Q. And are they still farmers?

A. (By the interpreter) Not anymore.

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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

Q. How come?

A. (By the interpreter) They are old and they are sick, so

they cannot work anymore.

Q. And do you live out there with them now?

A. (By the interpreter) Yes.

Q. Okay. And what do you do out there?

A. (By the interpreter) I help them with work here and

there.

Q. Okay. And do you have a job of your own?

A. (By the interpreter) Not yet.

Q. Do you have any siblings, VS XXXX?

A. (By the interpreter) Yes, I have one older sister.

Q. Okay. Do you have any other siblings at all?

A. (By the interpreter) No, I don't.

MR. WEINERMAN: Again, I am sorry to interrupt. I

apologize again, but we are having a difficult time hearing

the witness speak.

THE COURT: VS XXXX, if I could have you just

speak up a little bit louder.

BY MR. SINHA:

Q. So -- so you said you had one sister; is that right?

A. (By the interpreter) Yes.

Q. And about how old is your sister?

A. (By the interpreter) Nineteen years old.

Q. Okay. So VS XXXX, one of the things I want to talk to

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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

you about is the time that you lived at Hope Transitions

Center.

Do you know what period of time I am talking

about?

A. (Nodded head.)

Q. Okay. And was that about 2011 until the end of 2013?

Is that a yes? I am sorry.

A. (By the interpreter) Yes.

Q. Okay. So VS XXXX, could you just tell us, how did you

end up moving from the province where you lived with your

parents to the Hope Transitions Center?

A. (By the interpreter) Through the church.

Q. Okay. What happened?

A. (By the interpreter) I asked him to live there.

Q. Okay. So was this a church in your -- in the province

where you lived?

A. (By the interpreter) Yes.

Q. Okay. And did somebody from Hope Transitions Center

come out to that church?

A. (By the interpreter) Yes.

Q. Okay. And what -- what were they coming out to your

church to do?

A. (By the interpreter) To spread the good news.

MS. MAXFIELD: Your Honor, I am having a tough

time hearing everyone. I think because the witness is

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 19 of 80
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VS XXXXXXXXXXXXX - 5/8/2018

Direct Examination by Ravi Sinha

speaking softly, everyone else is speaking softly. So if

we could --

THE COURT: All right. If Mr. Sinha and the

translator could raise their voice a little bit. Thank you.

BY MR. SINHA:

Q. So this person came out to your church to spread the

good news, the Word?

A. (By the interpreter) Yes.

Q. And did they talk -- did this person talk to people

about maybe coming out to live at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. Okay. And did they talk to you about that?

A. (By the interpreter) Yes.

Q. When they talked to you about moving to Hope

Transitions Center, was that something you thought you would

like to do?

A. (By the interpreter) Yes.

Q. And why was it that you thought that you might like to

move, you know, far away from home to Hope Transitions

Center?

A. (By the interpreter) I wanted to learn English.

Q. Why was learning English something you wanted to do?

A. (By the interpreter) My mom wanted to learn.

Q. So you wanted to learn English to help your mom learn

English?

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Direct Examination by Ravi Sinha

A. (By the interpreter) My mom wanted me to learn so I can

know a lot so I could help her.

Q. Oh, okay. I am sorry. I misunderstood.

Why is learning English and knowing English in

Cambodia a good thing?

A. (By the interpreter) Because knowing a lot of English,

it's easier to find employment.

Q. It's good for getting a job?

A. (By the interpreter) Yes.

Q. So had you stayed out living with your parents in the

province, would you have had the opportunity to go to school

and learn English?

A. (By the interpreter) No.

Q. Okay. And so Hope Transitions Center gave you an

opportunity to learn English?

A. (By the interpreter) Yes.

Q. So it sounds like, from what we have talked about, you

lived at Hope Transitions Center for about two years.

Does that seem about right?

A. (By the interpreter) Yes.

Q. And while you were there, were you going to school?

A. (By the interpreter) I did.

Q. Okay. VS XXXX, what types of things did you study in

school?

A. (By the interpreter) Khmer language and English.

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Direct Examination by Ravi Sinha

Q. And even though you speak some English, am I right in

understanding you have agreed to talk to us through an

interpreter because that's your native language?

A. (By the interpreter) Yes.

Q. Okay. So VS XXXX, what was an average day like for you

during the couple years you lived at Hope Transitions

Center?

What types of things did you do?

A. (By the interpreter) You go to school, and then after

that you come home and do household chores.

Q. Okay. And what types of chores did you do?

A. (By the interpreter) Sweeping the house.

Q. Okay. And did you have worship services during the

day?

A. (By the interpreter) Yes.

Q. Okay. And when you weren't doing chores and you

weren't at worship services and you weren't at school, what

types of things did you like to do?

A. (By the interpreter) Nothing else.

Q. Did you play any sports or anything?

A. (By the interpreter) Yes, soccer.

Q. Soccer. Okay.

So VS XXXX, I am going to show you some pictures,

and I want to just ask you if that's you in them, and I want

to get a sense as to when they are. Okay?

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Direct Examination by Ravi Sinha

A. (By the interpreter) Yes.

MR. SINHA: Okay. So, Your Honor, with the

court's permission, I would like to show the witness and

have the following published to the jury.

THE COURT: All right. We can do that.

MR. SINHA: 1 through 17 -- excuse me, 11 through

17. So let's start with 11, please.

BY MR. SINHA:

Q. So VS XXXX, who is this person that I am looking at?

THE COURT: It isn't up yet.

BY MR. SINHA:

Q. Oh, I am sorry.

A. (By the interpreter) That's me.

Q. Okay. And was this what you looked like during the

time that you were living at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. And do you know where the photo was taken?

A. (By the interpreter) I don't remember.

Q. Okay. Let's look at Exhibit 12, please.

Who is this person?

A. (By the interpreter) That's me.

Q. And was this also taken around the time that you were

living at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. Let's look at Exhibit 13, please.

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Direct Examination by Ravi Sinha

All right. Now, there are three people in this

photo. Are you one of these three people?

A. (By the interpreter) Yes.

Q. And can you figure out which -- can you tell me which

one of the three you are, please?

A. (By the interpreter) The middle one.

Q. Who are the other two kids in this photo, if you know?

A. (By the interpreter) I don't remember.

Q. Okay. Was this photo also taken around the time that

you were at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. Okay. Let's look at 14, please.

Well, VS XXXX, I think I can guess that this is

you from the name, but am I right about that?

A. (By the interpreter) Yes.

Q. Okay. And was this while you were living at Hope

Transitions Center?

A. (By the interpreter) Yes.

Q. Okay. Let's look at Exhibit 15, please.

Okay. So is this also you and also while you were

living at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. How about 16, please.

Okay. Who is this and where was it taken, if you

know?

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Direct Examination by Ravi Sinha

A. (By the interpreter) That's me, and we were at the

ocean or sea.

Q. Okay. And was this while you were living at Hope

Transitions Center?

A. (By the interpreter) Yes.

Q. Okay. And then the last one I am going to show you is

17, please.

And VS XXXX, is this a photo of you while you were

living at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. Okay. So during the time that you were living at Hope

Transitions Center, where did you sleep at night?

A. (By the interpreter) In the room at the -- upstairs.

Q. And during that period did you ever give anyone

massages?

A. (Nodded head.)

Q. Is that a yes?

A. (By the interpreter) Yes.

Q. And I know it's tough to remember because we all nod

and shake our heads, but I think the court or I will

probably ask you to say your answers, if you would, please.

A. (By the interpreter) Yes.

Q. Okay. So VS XXXX, you said that you did give people

massages while you were at Hope Transitions Center.

Who did you give massages to?

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Direct Examination by Ravi Sinha

A. (By the interpreter) Daniel.

Q. Okay. And is that Daniel Johnson?

A. (By the interpreter) Yes.

Q. Can you tell me, what part of Daniel Johnson did you

massage?

A. (By the interpreter) Back.

Q. Were there other parts?

A. (By the interpreter) No.

Q. VS XXXX, I want to talk to you about some uncomfortable

subjects. Okay?

A. (By the interpreter) Yes.

Q. Do you know what I am going to talk to you about?

A. (By the interpreter) Yes.

Q. Okay. So I want to talk to you about Daniel Johnson

and you and things that he may have done.

MR. WEINERMAN: Judge, I am sorry. We can't hear

the interpreter and not so much the witness either.

THE COURT: You are going to have to raise your

voices a little bit more, please.

THE WITNESS (By the interpreter): Yes.

BY MR. SINHA:

Q. Could you tell me about the first time that Daniel

Johnson ever did anything to you that made you feel

uncomfortable?

A. (By the interpreter) It's hard to say.

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Direct Examination by Ravi Sinha

Q. I know. So VS XXXX, let me ask you this: Was there a

time that you were in Daniel's bedroom with him and LS X was

there?

A. (By the interpreter) Yes.

Q. Okay. And were you guys at that time watching, like, a

movie or video slides?

A. (By the interpreter) Yes.

Q. Okay. And did LS X fall asleep before you did or after

you did?

A. (By the interpreter) Before.

Q. Okay. VS XXXX, what happened after LS X fell asleep?

A. (By the interpreter) Daniel violated me.

Q. Okay. How did he violate you?

A. (By the interpreter) He made me suck his penis.

Q. And was that his penis in your mouth?

A. (By the interpreter) Yes.

Q. Okay. And was he wearing a condom?

A. (By the interpreter) No, he didn't.

Q. Was that the only time that Daniel made you suck his

penis?

A. (By the interpreter) Many times.

Q. When Daniel made you suck his penis, did Daniel come?

A. (By the interpreter) Yes.

Q. Were there times when Daniel sucked your penis?

A. (By the interpreter) Yes.

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Direct Examination by Ravi Sinha

Q. Did that happen a few times or a lot of times?

A. (By the interpreter) Two to three times.

Q. And when Daniel sucked your penis, did you come?

A. (By the interpreter) No, I didn't.

Q. Were there times when Daniel touched his -- your penis

with something other than his mouth?

A. (By the interpreter) No.

Q. Were there ever times when Daniel touched your penis

with his hand?

A. (By the interpreter) Yes.

Q. And when that happened, was that the skin of his hand

touching the skin of your penis?

A. (By the interpreter) Yes.

Q. When that happened and Daniel was touching your penis

with his hand, did you ever come?

A. (By the interpreter) Never.

Q. Did him touching your penis with his hand ever cause

you to become aroused?

A. (By the interpreter) Yes.

Q. Okay. Was there times during the time you lived at

Hope Transitions Center when Daniel made you touch his penis

with your hand?

A. (By the interpreter) Can you repeat your question,

please.

Q. Were there times when Daniel made you touch his penis

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Direct Examination by Ravi Sinha

with your hand?

A. (By the interpreter) Yes.

Q. Were there -- were there ever times when Daniel put his

penis in your body anywhere other than your mouth?

A. (By the interpreter) Yes, in the butt.

Q. How often did that happen?

A. (By the interpreter) Two to three times.

Q. When Daniel put his penis in your butt, did you try to

stop him?

A. (By the interpreter) I tried.

Q. Were you able to stop him?

A. (By the interpreter) I couldn't.

Q. Was he much bigger than you at that time?

A. (By the interpreter) Yes.

Q. When Daniel put his penis in your butt, did he put

anything on it before he did that?

A. (By the interpreter) He -- he applied lubrication.

Q. To his penis or to your butt?

A. (By the interpreter) On his penis.

Q. When Daniel put his penis in your butt, how did it

feel?

A. (By the interpreter) Painful.

Q. VS XXXX, when these things were happening to you, did

you feel like you could make Daniel stop doing them to you?

A. (By the interpreter) No.

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Direct Examination by Ravi Sinha

Q. What did you think would happen if you tried to stop

Daniel from doing these things to you?

A. (By the interpreter) I don't know.

Q. Were you scared of Daniel?

A. (By the interpreter) Yes.

Q. What types of things -- what types of things were you

scared he would do?

A. (By the interpreter) I was afraid that he would

continue to violate.

Q. And you mean continue to violate you?

A. (By the interpreter) Yes.

Q. When Daniel was doing these things to you, did he ever

say anything to you about it?

A. (By the interpreter) He told me not to tell anyone

else.

Q. Did he tell you that just once or did he tell you that

repeatedly?

A. (By the interpreter) Every time.

Q. VS XXXX, when Daniel was doing these things to you and

he finished, did he ever give you anything afterwards?

A. (By the interpreter) He gave money.

Q. He gave you money after -- afterwards. Did you

understand that part of the reason you were getting the

money was because he had violated you?

A. (By the interpreter) Yes.

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Direct Examination by Ravi Sinha

Q. VS XXXX, when did Daniel -- what stopped -- let me

start again.

What happened that stopped Daniel from violating

you?

A. (By the interpreter) The police arrested him.

Q. Okay. And was he -- was he violating you all the way

up until the time of his arrest?

A. (By the interpreter) Yes.

Q. And was he violating you the whole two-year period that

you lived at Hope Transitions Center?

A. (By the interpreter) Yes.

Q. VS XXXX, when Daniel was having anal sex with you,

what -- where did that take place in the Hope Transitions

Center?

A. (By the interpreter) In his room.

Q. And when that was happening, where were you in the

room?

A. (By the interpreter) On the bed.

Q. And how were you positioned on the bed?

A. (By the interpreter) Laid down.

Q. Okay. And were you laying on your stomach or were you

laying on your back?

A. (By the interpreter) On my stomach.

Q. And where was Daniel positioned?

A. (By the interpreter) Kneeling down.

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Direct Examination by Ravi Sinha

Q. So he was -- was he behind you?

A. (By the interpreter) Yes.

Q. Okay. And were you laying flat on your stomach or were

you on your hands and knees?

A. (By the interpreter) On my hands and knees.

Q. Okay. VS XXXX, during these instances in which Daniel

was having anal sex with you, do you ever recall him taking

any photographs of that happening?

A. (By the interpreter) He did.

Q. Okay. And did you ever see any of the photographs that

he took?

A. (By the interpreter) Yes.

Q. And do you -- do you know, how was he holding the

camera when he took those photographs?

INTERPRETER LIM: I think the interpreting

didn't --

MR. SINHA: I can reask the question a better way.

INTERPRETER LIM: But the answer, he used the --

his telephone.

BY MR. SINHA:

Q. Okay. What kind of phone was it that he was using?

A. (By the interpreter) An iPhone.

Q. Do you remember what color it was?

A. (By the interpreter) White.

Q. And when he was using this iPhone to take photos of you

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Direct Examination by Ravi Sinha

while having anal sex with you, do you know how he was

positioning the phone?

A. (By the interpreter) He took still photos.

Q. Okay. Do you know if your face was visible in those

photos?

A. (By the interpreter) No.

Q. Do you know if the angle from which the photos were

taken would have been such that Daniel's scrotum was

visible?

A. (By the interpreter) You can see.

Q. His scrotum?

A. (By the interpreter) Yes.

Q. In the photos that he took and then showed you, did it

look like Daniel was taking the photo from behind both of

you so you were in front of him and he was behind you, and

then was the photo taken from behind him?

A. (By the interpreter) From above.

Q. Okay. And the photo that you recall seeing was taken

from above the two of you?

A. (By the interpreter) You only see his thing and me.

Q. And by "his thing," do you mean his genitals?

A. (By the interpreter) Yes.

Q. And so is that his penis and his scrotum?

A. (By the interpreter) Yes.

Q. VS XXXX, in the instances in which Daniel Johnson made

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Direct Examination by Ravi Sinha

you suck his penis, where were his hands when that was

happening?

A. (By the interpreter) Pushing my head.

Q. During this period, VS XXXX, were you aware of Daniel

Johnson sexually abusing any of the other boys at the

orphanage?

A. (By the interpreter) I -- I did know.

Q. Okay. I want to talk to you about the day of the

arrest.

A. (By the interpreter) Yes.

Q. Do you recall, on the day of the arrest, speaking to

people from either the Cambodian National Police or an

organization called APLE?

A. (By the interpreter) I don't remember.

Q. You don't remember whether you did or didn't?

A. (By the interpreter) Correct.

Q. Okay. Do you remember about a year after the arrest

speaking to a woman with the FBI named Martha?

A. (By the interpreter) Yes.

Q. Okay. And do you remember talking to Martha about some

of these uncomfortable things?

A. (By the interpreter) Yes.

Q. VS XXXX, I think I only have a few more questions for

you. But if it's okay, I would like to take just one

minute, please.

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Direct Examination by Ravi Sinha

A. (By the interpreter) Yes.

MR. SINHA: Thank you, Your Honor.

(Government counsel conferred.)

BY MR. SINHA:

Q. So VS XXXX, I just have a few more questions for you.

VS XXXX, how do you -- as you sit here today, how

do you feel about Daniel Johnson?

A. (By the interpreter) I don't have any feeling.

Q. Are you testifying today because you want to become --

you want to move to the United States or somebody from the

United States government has given you money or anything

like that?

A. (By the interpreter) I just want to say the truth of

what he did to me.

Q. Is that the only reason why you are testifying today?

A. (By the interpreter) Yes.

MR. SINHA: Your Honor, at this time I will pass

the witness, but I would ask the court for a brief break in

between.

THE COURT: All right. Folks, let's take a quick

break. We'll have you return to the jury room. We'll be

out 10 or 15 minutes.

(Jury out.)

THE COURT: Has the defense decided whether they

are going to inquire about the photo?

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Direct Examination by Ravi Sinha

Has the defense decided whether they are going to

inquire about the photo on cross?

MR. WEINERMAN: I still need to talk to

Ms. Maxfield. So the answer to the court's question is no,

not yet.

THE COURT: Okay. I will leave it up to you folks

whether you want to spend some time with him with the photo

privately, talk to him about it or not.

MR. SINHA: Thank you, Your Honor. Is it okay if

we tell him just about the break?

THE COURT: Yes.

MR. SINHA: Thanks.

(Recess.)

THE COURT: All right. We can go on the record.

MR. WEINERMAN: Judge, the answer to the court's

question is no, we are not going to ask him about whether --

we are not going to ask him anything about what's depicted

in the exhibit.

THE COURT: Okay. All right. Why don't we bring

the witness in and we'll get the jury.

(Sound feedback.)

THE CLERK: Does anybody have a cell phone?

MR. WEINERMAN: Yeah, I do. Sorry. Apologies.

MR. SWEET: And Your Honor, if we may, one thing,

just to be clear, the image is admitted so that through the

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Cross-Examination by Lisa Maxfield

next witness that we are going to call, that's something

that can come in through him, then?

THE COURT: Yes.

MR. SWEET: Thank you.

THE COURT: All right. We are going to have

Mr. Johnson's attorney ask you some questions. All right.

And we should be done pretty quick. Are you doing

okay?

THE WITNESS (By the interpreter): Yes.

THE COURT: Okay.

(Jury in.)

THE COURT: All right. Please be seated.

Cross-examination.

CROSS-EXAMINATION

BY MS. MAXFIELD:

Q. Good morning, VS XXXX.

A. (By the interpreter) Morning.

Q. I am over here.

I am Lisa Maxfield, and I am one of the lawyers

representing Mr. Johnson.

A. (By the interpreter) Yes.

Q. You talked just a minute ago about a photograph that

was taken. Do you remember talking to the Cambodian police

and some people from APLE on the day of Daniel's arrest?

A. (By the interpreter) Yes.

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Cross-Examination by Lisa Maxfield

Q. Do you remember telling those people that there were no

photographs taken?

A. (By the interpreter) I don't remember.

Q. Do you remember the day that the Cambodian police came

to arrest Daniel Johnson?

A. (By the interpreter) I don't remember.

Q. Do you remember anything?

A. (By the interpreter) I don't remember.

Q. Do you remember how many police came?

A. (By the interpreter) I don't remember. There were

many.

Q. There were many?

A. (By the interpreter) Yes.

Q. And were the children at the center, the kids at the

center frightened when the police came?

A. (By the interpreter) Yes.

Q. And you were frightened too; is that right?

A. (By the interpreter) Yes.

Q. The Cambodian police are scary?

A. (By the interpreter) Yes.

Q. When the police came, did they make you sit or stand in

a certain area?

A. (By the interpreter) Yes.

Q. You weren't free to walk around as you chose?

A. (By the interpreter) We couldn't.

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Q. And -- but the police wanted to question you?

A. (By the interpreter) Yes.

Q. After you talked to the Cambodian police, you were

taken away from the center?

A. (By the interpreter) Yes.

Q. You did not get to go back to your home?

A. (By the interpreter) Yes.

Q. You didn't get to see your mom and dad?

A. (By the interpreter) Correct.

Q. Your mom and dad were very upset that they couldn't see

you?

A. (By the interpreter) True.

Q. And were you taken to an orphanage that was run by the

authorities?

A. (By the interpreter) Yes.

Q. About a month after Mr. Johnson was arrested, did your

mom petition the Cambodian court to have you returned to

your home?

A. (By the interpreter) Yes.

Q. But you didn't get to go home, did you?

A. (By the interpreter) Correct.

Q. A few months after Mr. Johnson's arrest, your father

talked to you about what happened with Daniel Johnson?

A. (By the interpreter) Yes.

Q. And you told your dad that "D" had done nothing wrong?

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Cross-Examination by Lisa Maxfield

A. (By the interpreter) Yes.

Q. How long were you -- did you stay in the orphanage?

A. (By the interpreter) I don't remember.

Q. Would it have been a year? Two years?

A. (By the interpreter) Two years.

Q. When you left the orphanage, you finally got to go back

home?

A. (By the interpreter) Yes.

Q. And when you were back home, did the authorities bring

you a new bike?

A. (By the interpreter) Yes, they did.

Q. And did they also pay for some repairs on your parents'

home?

A. (By the interpreter) Yes.

Q. About a year after Mr. Johnson was arrested, do you

remember going to Phnom Penh to talk with FBI Martha?

A. (By the interpreter) Yes.

Q. And who took you to Phnom Penh, do you remember?

A. (By the interpreter) I don't remember.

Q. It wasn't your parents?

A. (By the interpreter) Maybe my mom.

Q. And did the questioning by FBI Martha take place at the

office of the Cambodian police?

A. (By the interpreter) Yes.

Q. And the Cambodian police were watching the FBI

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Cross-Examination by Lisa Maxfield

interview from another room?

A. (By the interpreter) Yes.

Q. About two years after Daniel Johnson was arrested, do

you remember a man named Martin coming to your home village?

A. (By the interpreter) Yes.

Q. And did Martin ask your parents if he could talk with

you?

A. (By the interpreter) Yes.

Q. And you and Martin went inside a church to talk?

A. (By the interpreter) Yes.

Q. Was it a Christian church?

A. (By the interpreter) Yes.

Q. And you didn't want to tell a lie inside the church?

A. (By the interpreter) Yes.

Q. And you told Martin that you had exaggerated and told

lies when you talked to the FBI?

A. (By the interpreter) Yes.

Q. You talked with a lot of lawyers over the last couple

of days; is that right?

A. (By the interpreter) Yes.

Q. Before you came to the United States, did you have a

chance to talk with any lawyers?

A. (By the interpreter) No.

Q. Do you have a personal lawyer? A lawyer who represents

you?

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Cross-Examination by Lisa Maxfield

A. (By the interpreter) I do.

Q. And did that lawyer call you on the telephone while you

were in Cambodia?

A. (By the interpreter) No.

Q. Was the lawyer American?

A. (By the interpreter) Yes.

Q. And have you talked with the lawyer since you have been

here in the United States?

A. (By the interpreter) Yes, I did.

Q. Where did you meet with the lawyer?

A. (By the interpreter) At the hotel.

Q. Who was there when you met with the lawyer?

A. (By the interpreter) Myself and a few of my friends,

about two to three of my friends.

Q. Do you remember who your friends were who were there?

A. (By the interpreter) CC X, SO XXX, LS X and myself.

Q. Did you talk with the lawyer about being able to live

in the United States?

A. (By the interpreter) No.

Q. Have you talked to anyone about living in the United

States?

A. (By the interpreter) No.

Q. Since you have been here in the United States, has the

FBI given you any money?

A. (By the interpreter) They did.

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Cross-Examination by Lisa Maxfield

Q. How much?

A. (By the interpreter) I don't remember.

Q. Do you still have some left?

A. (By the interpreter) Yes.

Q. Do you know how much money you have left?

A. (By the interpreter) I don't know.

Q. Let me just ask you this: The court -- this part's no

fun, but have you had a chance to do anything fun while you

have been here?

A. (By the interpreter) Yes.

Q. Can you tell me some of the fun things you have done so

far?

A. (By the interpreter) Telling you, right?

Q. Pardon?

A. To tell you, correct?

Meaning am I telling you?

Q. Oh, I guess I am asking you, tell all of us what fun

things you have done so far.

A. (By the interpreter) Playing soccer and also going out.

Q. Where did you get to go?

A. (By the interpreter) We went to the mountains.

Q. Do you know how much longer you will be here in the

United States?

A. (By the interpreter) I don't know.

MS. MAXFIELD: I have no further questions. Thank

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Redirect Examination by Ravi Sinha

you.

THE COURT: Any redirect?

MR. SINHA: Yes, Your Honor, if I may, please.

Actually, Your Honor, if I can just have one

moment.

THE COURT: Sure.

(Government counsel conferred.)

REDIRECT EXAMINATION

BY MR. SINHA:

Q. All right. SO XXX, I don't have a lot of questions for

you. I just have a few. Excuse me.

VS XXXX, I don't have a lot of questions for you.

I just have a few.

So VS XXXX, Ms. Maxfield asked you about getting a

bicycle in Phnom -- excuse me -- in Cambodia.

A. (By the interpreter) Yes.

Q. Okay. And she said that the authorities gave you that

bicycle.

A. (By the interpreter) Yes.

Q. But I don't really know what the word "authorities"

means. Who gave you the bicycle?

A. (By the interpreter) Hagar organization.

Q. Okay. And is that a charitable organization for

victims of sexual abuse?

A. (By the interpreter) Yes.

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Redirect Examination by Ravi Sinha

Q. And do you know why they gave you a bicycle?

A. (By the interpreter) I don't know.

Q. Is Hagar giving you a bicycle in Cambodia the reason

why you are testifying here today?

A. (By the interpreter) No.

Q. Now, it sounds like, VS XXXX, you at one point talked

to your dad about some of the things that Daniel did to you.

And you also talked to Mr. Johnson's investigator,

a man named Martin; is that correct?

A. (By the interpreter) Yes.

Q. VS XXXX, are these -- the things that we have talked

about today with you, that I have talked to you about today,

are those things easy for you to talk about or are those

hard things to talk about?

INTERPRETER LIM: I think the interpreter goofed.

Okay. Can you repeat the question again, please.

BY MR. SINHA:

Q. Sure. So the times -- today we have talked about a lot

of times in which Daniel Johnson sexually abused you.

And I have asked you a lot of questions about

those things, and you have answered my questions.

But are those topics that you like to talk about

or are those topics that you don't like to talk about?

A. (By the interpreter) I -- I don't want to talk about.

Q. And are those topics that you want to talk to your

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Redirect Examination by Ravi Sinha

father about?

A. (By the interpreter) No.

Q. Are those topics that you wanted to talk to Martin

about?

A. (By the interpreter) No.

Q. Okay. So I guess what it comes down to is the things

that you told Martha when you talked to her and she was

interviewing you, were those things really things that

Daniel Johnson did to you?

A. (By the interpreter) Yes.

Q. Did you make any of those things up?

A. (By the interpreter) It was the truth.

Q. And is what you have told us here today the truth?

A. (By the interpreter) It is the truth.

Q. VS XXXX, today is not the first day that you testified

in court; is that correct?

A. (By the interpreter) Correct.

Q. And you actually testified in court in Cambodia about

the things that --

MS. MAXFIELD: Beyond the scope, Your Honor.

Objection.

THE COURT: It's beyond the scope. This is a new

area.

MR. SINHA: Could we approach, please?

THE COURT: Yes.

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Redirect Examination by Ravi Sinha

(Discussion at sidebar; not reported.)

THE COURT: I will overrule the objection if you

could reask the question.

BY MR. SINHA:

Q. So VS XXXX, I was talking to you about having testified

in a proceeding involving Daniel Johnson in Cambodia.

Do you know what I am talking about?

A. (By the interpreter) Yes.

Q. And when you testified in that case in Cambodia, did

you testify that Daniel Johnson had sexually abused you?

A. (By the interpreter) Yes.

Q. Was that the truth when you said that?

A. (By the interpreter) The truth.

Q. VS XXXX, I am going to jump back to one other quick

question.

I think Ms. Maxfield had said that the authorities

replaced your mother's house's roof?

INTERPRETER LIM: Counselor, did you say

"replace"?

BY MR. SINHA:

Q. Repair, I am sorry, is a better word.

A. (By the interpreter) They didn't.

Q. Okay. Did somebody help your mother with her roof?

A. (By the interpreter) No.

Q. I may just have misunderstood. Did somebody help

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Recross-Examination by Lisa Maxfield

repair your parents' home?

A. (By the interpreter) We fix it ourselves.

Q. Okay.

MR. SINHA: So Your Honor, what I'd ask the court

to do, and I think Mr. Johnson's counsel doesn't have an

objection to this, is we are going to -- we'd like to play

part of the forensic interview with VS XXXX. We have

transcripts for the jury.

THE COURT: Okay.

MR. SINHA: But we believe that he could be

excused, unless the defense has additional questions, so he

doesn't have to sit through it.

THE COURT: Any objection to the witness being

excused?

MS. MAXFIELD: No, but I have one more question.

THE COURT: Okay. Go ahead.

RECROSS-EXAMINATION

BY MS. MAXFIELD:

Q. The authorities who just repaired your parents' roof,

they actually built a new roof on a new house; isn't that

right?

A. (By the interpreter) Yes.

MR. SINHA: Could I ask one additional question,

Your Honor?

THE COURT: Sure.

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Redirect Examination by Ravi Sinha

REDIRECT EXAMINATION

BY MR. SINHA:

Q. VS XXXX, who are the authorities that did that?

A. (By the interpreter) I don't know.

MR. SINHA: Okay. That's all I had, Your Honor.

THE COURT: All right. VS XXXX, thank you very

much. You are free to go.

MR. SINHA: So, Your Honor, if I may, I wish to

perhaps introduce the video clips.

THE COURT: Yes, if you could, when it was taken,

who was present. And Ms. Pew is handing out copies for the

jurors, so.

MR. SINHA: So, Your Honor, I would note that the

transcript has been marked and I would ask for it be entered

as Court Exhibit 7.

THE COURT: All right.

MR. SINHA: This is an excerpt from a forensic

interview conducted in Phnom Penh, of VS XXXX. The

participants are Martha Finnegan, an FBI forensic

interviewer; Roath, spelled R-O-T-H [sic], who is a

translator; VS XXXX.

The interview took place on November 14th of 2014,

and it is Exhibit No. 268A, as in apple.

THE COURT: All right. It will be received.

(The video was played; not reported.)

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Redirect Examination by Ravi Sinha

THE COURT: All right. Do we have another witness

for the government?

MS. BRITSCH: Yes, Your Honor. The government

calls Brian Poole.

MR. WEINERMAN: Judge, we have a stipulation. I

think we have agreed to read it into the record now. It is

one of the court's exhibits, Court Exhibit 1.

THE COURT: All right.

MR. WEINERMAN: If I may.

THE COURT: Yes. And if you want to introduce

what the exhibit is before you read it.

MR. WEINERMAN: Well, we -- it's a stipulation.

THE COURT: Okay.

MR. WEINERMAN: It's a court's exhibit, not a

defense or a government exhibit.

THE COURT: All right.

MR. WEINERMAN: So I will just read it.

"On January 6th, 2013, FBI Special Agent Jeff

Yesensky spoke with an APLE employee regarding

Daniel Johnson. The APLE employee did not have

copies of the Cambodian National Police interview

reports with LS XXXXX, VS XXXXXXXXXXXXX, CC

XXXXXX, SO XXXXXXX, and ES XXXXXXXX, but had been

briefed on the case. To the APLE employee's

knowledge, none of the alleged victims had

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Direct Examination by Lauren Britsch

disclosed that Daniel Johnson had taken explicit

images of them."

THE COURT: Okay. Folks, a stipulation is just

facts that both parties agree upon that you can accept as

true. And I believe we'll have the stipulations that are

included in this case sent to you in the jury instructions.

All right. Mr. Poole, if you'd like to step

forward to the witness stand here to my left. You can go

ahead and step up the stairs next to the witness chair and

remain standing for just a moment. You will be sworn in.

THE CLERK: Please raise your right hand.

(The witness was sworn.)

THE CLERK: Please be seated. State your name for

the record, spelling your first and last.

THE WITNESS: It's BT XX R. Poole, B-R-I-A-N,

Poole, P-O-O-L-E.

THE COURT: All right. Thank you.

Ms. Britsch.

MS. BRITSCH: Thank you, Your Honor.

DIRECT EXAMINATION

BY MS. BRITSCH:

Q. Good morning, Mr. Poole.

A. Good morning.

Q. Where do you work?

A. I work for the FBI, Federal Bureau of Investigation, in

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Direct Examination by Lauren Britsch

Pocatello, Idaho.

Q. And what is your role with the FBI in Pocatello?

A. I am a forensic examiner, a computer forensic examiner

with the CART unit, Computer Analysis Response Team.

Q. And how long have you been a computer forensic

examiner?

A. I have been a computer forensic examiner for 22 years.

Q. And in general, what does a computer forensic examiner

do at the FBI?

A. A computer forensic examiner examines devices,

electronic devices, including hard drives, cell phones, USB

drives, digital cameras.

Q. Are those devices that are generally seized as evidence

in FBI investigations?

A. Yes, they are.

Q. And before you became a computer forensic examiner,

were you working at the FBI?

A. Yes.

Q. And what was your role before that?

A. I was a network computer operator, and before that I

was a mainframe computer operator.

Q. And can you tell us a little bit about your education,

please.

A. Yes. I have an associate's degree in data processing

from Idaho State University and also a Bachelor's of

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Direct Examination by Lauren Britsch

Business Administration with an emphasis in computer

information systems from -- also from Idaho State

University.

Q. And do you have any training or certifications related

to computer forensic examination?

A. Yes. I have been certified in Windows computers,

Mac -- Macintosh computers, cell phones, digital cameras,

and Linux computers.

Q. And as part of your work with the FBI, do you do

regular on-the-job training related to computers?

A. Yes. I averaged about two or three training classes a

year throughout the 22 years I have been a forensic

examiner.

Q. And can you say approximately how many digital devices

you reviewed as a computer forensic examiner with the FBI?

A. I would say around a thousand over the 22 years.

Q. And can you explain for us what is the process of

conducting a computer forensic examination?

A. It varies on the device. For a hard drive, we take an

image of the hard drive. That is a bit-for-bit copy of the

hard drive. We first write-protect it so that nothing can

be written to the original evidence, and then we copy it

over to another piece of media; generally a hard drive,

another hard drive or a server storage system. And in the

process we also do an MD5 hash verification on it. And a

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Direct Examination by Lauren Britsch

hash verification is like a digital fingerprint for a

computer system.

Q. Okay. And then step back for a second. So you

mentioned this is how you deal with a hard drive, correct?

A. Correct.

Q. Would that be, for example, a hard drive you find in a

computer or an external hard drive that you might plug into

a computer?

A. Either one.

Q. Okay. And you said you make an image which is a

bit-for-bit copy; is that correct?

A. That's correct.

Q. Can you explain what a bit-for-bit copy is?

A. It takes, like, every piece of data of the -- of the

hard drive, and it copies it over to another medium.

Q. And so could you say it's an exact copy?

A. Yes.

Q. And then you mentioned write-protecting it so that you

don't write to the original device. Does that mean

essentially that you don't make changes to the original

evidence when you make your bit-by-bit copy?

A. That's correct.

Q. And you mentioned MD5 hash verification. Can you walk

us through that and what the purpose of that is, please.

A. Yeah. The MD5 hash verification is a mathematical

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Direct Examination by Lauren Britsch

formula that calculates based on the bits and the bites of

the other computer. And it spits out a 32-character value,

mathematical value based on this formula.

And then at the end of our examination we run that

again on the copy that we have made to verify that nothing

has changed during our examination. So those values should

match up at the end of the examination.

Q. And that's how you verify that your bit-by-bit copy is

an exact copy of the original evidence?

A. Yes.

Q. And so that's the process for making a copy of a hard

drive, correct?

A. Yes.

Q. Can you explain how copying or extracting data from

cell phones is different than the process you just

described?

A. Yes. Most cell phones, smart phones these days, will

not let you do an exact bit-for-bit copy due to security

reasons. So we perform an extraction process, either a

logical file or physical process. The physical is the

bit-for-bit copy. And most smart phones, like I said, will

not let you do that these days.

Q. So you said you make a logical copy?

A. Either a logical or a file system copy.

Q. And what is a logical copy?

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Direct Examination by Lauren Britsch

A. A logical copy basically gets just the media or texts

or e-mails. It doesn't get the file system or hidden files.

Q. So it essentially just gets files that we as the user

of a cell phone would be able to see?

A. That's correct.

Q. And is there another type of file system extraction?

A. Yes.

Q. And what additional information can you get with a file

system extraction?

A. The file system extraction gets the actual file system,

hidden files, and generally operating system files that the

normal user can't see.

Q. Would that include deleted files in some cases?

A. In some cases.

Q. And Mr. Poole, have you ever been qualified as an

expert in computer forensics or cell phones in federal court

before?

A. Yes, I have.

Q. And was that in 2008?

A. It was around 2008. I am not sure of the exact year.

MS. BRITSCH: Your Honor, at this time the

government would move to qualify Mr. Poole as an expert in

the field of forensic examinations of digital devices,

including computers and cell phones, please.

THE COURT: Any objection?

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MR. WEINERMAN: No.

THE COURT: All right.

MS. BRITSCH: Thank you, Your Honor.

BY MS. BRITSCH:

Q. Mr. Poole, as part of this case, did an FBI agent

provide you with digital devices that had been seized from

Mr. Daniel Johnson?

A. Yes.

Q. And was one of those devices a white iPhone?

A. Yes.

Q. And I am going to show you what's been marked as

Government Exhibit 304 just for identification. I am going

to ask you to take a look at this, please.

What is Government Exhibit 304?

A. That is an iPhone containing my item number and my

initials.

Q. And do you recognize that iPhone as one you examined as

part of the investigation of Daniel Johnson?

A. Yes.

Q. And do you put your initials on it so that you can

identify it later as the same iPhone?

A. Yes.

Q. And is that the same reason you have an item number on

it?

A. Yes.

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Direct Examination by Lauren Britsch

Q. And what color is that iPhone, please?

A. It is white.

Q. Now, on this iPhone, did you perform an extraction?

A. Yes.

Q. And can you explain what type of extraction you

performed.

A. I performed two types of extractions. First I did the

logical extraction, and then I did a file system extraction.

Q. And were those the two types of extractions you just

described for us with regards to cell phones?

A. Yes.

Q. And as part of that extraction, did you find a

thumbnail image on the iPhone that you provided to the FBI

agent in this case?

A. Yes.

Q. And can you explain for us what a thumbnail image is,

generally.

A. A thumbnail is a smaller image, generally to look -- so

that you can look at a number of images together and quickly

scroll through many of the images so you don't have to

scroll through one by one of the individual photos.

Q. And are thumbnail images often automatically created by

the cell phone?

A. Yes.

Q. And those are created from actual photos that are on

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the phone; is that correct?

A. Yes.

Q. And are those the small images we see when we open up

our photo album and we scroll through and there's little

tiny boxes?

A. That's correct.

Q. I am going to ask you to take a look at Government

Exhibit 222, please.

THE CLERK: What exhibit was that?

MS. BRITSCH: 222.

MR. WEINERMAN: Has that been admitted?

MS. BRITSCH: It has not yet. I am going to ask

him to lay a foundation, if that's all right, Your Honor.

MR. WEINERMAN: Can we publish it to counsel now?

THE COURT: Yes.

MS. BRITSCH: May I just hand counsel a copy, Your

Honor? We haven't put it on the digital system.

THE COURT: Okay.

MS. BRITSCH: And, Your Honor, I believe the court

has a copy from this morning, but if the court does not, I

can provide one.

THE COURT: I don't have it currently, but --

MS. BRITSCH: I have one for the court.

BY MS. BRITSCH:

Q. Mr. Poole, do you recognize the image in Government

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Exhibit 222?

A. Yes, I do.

Q. And is that a thumbnail image that you extracted from

the white iPhone?

A. That is correct.

MS. BRITSCH: Your Honor, at this time we'd move

to admit Government Exhibit 222.

THE COURT: All right. Over objection that was

previously stated on the record, I will allow the exhibit.

MS. BRITSCH: Thank you, Your Honor.

And at this time I would like to hand out copies

to the jury. I don't know if Ms. Pew would like to do it,

but we have hard copies, one for each juror. And if the

court would let us, I would like to hand it out for as short

amount of time as possible and re-collect them from the jury

as soon as we are done talking about it.

THE COURT: Okay.

MS. BRITSCH: And for the record, I just note it's

approximately 11:24 a.m. as we are handing out these photos.

BY MS. BRITSCH:

Q. And now, Mr. Poole, when we look at this thumbnail

image, it looks a little funny. It appears that there are

two photos, one pasted on top of the other; is that correct?

A. Yes.

Q. And is there any way for an expert to basically unglue

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Direct Examination by Lauren Britsch

these photos?

A. Not easily. The picture that looks like it's

underneath would not be a full picture if you took it apart.

Q. And can you explain why this thumbnail image looks this

way, the two photos pasted one on top of the other?

A. Looking through the Internet and doing research, I have

never seen this happen before. But looking through the

Apple website, through the discussion groups, I came across

several complaints about a glitch that was on the operating

system of iPhones from about Version 4 through Version 7.

And the glitch has -- is what it does is it has an active

file, a current photo that overlays over the top of a

deleted photo.

Q. And the version you mention, is that the operating

system version or iPhone itself version?

A. The operating system version.

Q. And would that operating system version been around at

the time of the iPhone version we have in front of you?

A. That's correct. The iPhone had version 6, 6.1, I

believe.

Q. Okay. So you said it's basically a programming glitch?

A. Yes.

Q. And so you mentioned active photo and deleted photo.

Can you explain with respect to this thumbnail which one

would be the active photo and which one would be the deleted

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photo?

A. Yes. The active photo is the foot that's on top of

this overlaid photo, which is a deleted photo that is

underneath.

Q. So the photo on top was still on the phone; is that

correct?

A. That's correct.

Q. The photo underneath had been deleted. Is that what

you are saying?

A. Yes.

Q. And were you able to determine, with respect to the

photo of the foot on top, any dates associated with when it

had been taken?

A. Yes. From my examination, it looked like the photo was

taking -- taken on July 1st of 2013.

MR. WEINERMAN: Could I ask him to repeat that

again, Judge. I didn't hear him.

THE COURT: Yes. Could you repeat that.

THE WITNESS: The photo that's on top was taken on

July 1st of 2013, by the iPhone.

BY MS. BRITSCH:

Q. And are you able to determine when the photo on the

bottom had been taken?

A. No.

Q. Can you say whether the photo on the bottom existed on

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the phone before the top photo was created?

A. Yes, it existed on the phone before the top photo was

created.

Q. And were you also able to determine from your

examination of the iPhone when the iPhone had been

activated?

A. I believe the iPhone was activated on June 24th of

2012.

Q. And can you say that the bottom photo was deleted

sometime after that June 2012 date?

A. That's correct. That's what it looks like.

Q. So those dates, then, are between June 2012 when the

phone was activated and then when the photo on top was

taken, July 1st, 2013?

A. Yes.

MS. BRITSCH: Your Honor, at this time I would

like to collect the copies of the photo from the jury,

please.

THE COURT: All right.

MS. BRITSCH: I will note for the record that it

is approximately 11:29.

Thank you.

BY MS. BRITSCH:

Q. Mr. Poole, did you also examine a computer and external

hard drive seized from Mr. Daniel Johnson?

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Direct Examination by Lauren Britsch

A. Yes.

Q. And did you conduct those examinations by making

forensic copies with the process you described for us

earlier?

A. Yes, I did.

Q. And were you able to make an exact forensic copy of

both of those devices?

A. Yes.

Q. And were you able to verify the hash value to ensure

that those hash values matched and it was an exact copy?

A. Yes.

Q. I am going to ask that Government Exhibit 157 be pulled

up, please.

Do you recognize Government Exhibit 157 on your

screen?

A. It's not on my screen.

Q. One minute. I am asking Ms. Pew to do too many things

at once.

A. Yes.

Q. And do you recognize that as a document that you found

on an Acer desktop seized from Mr. Daniel Johnson?

A. I believe it was the Acer, yes.

MS. BRITSCH: And Your Honor, I'd move at this

time that this document be admitted, please.

THE COURT: All right. It will be admitted.

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Direct Examination by Lauren Britsch

MS. BRITSCH: And I'd ask that it be published to

the jury, please.

BY MS. BRITSCH:

Q. And were you able to determine from your examination

that this document was created or copied to the computer on

February 24th, 2013?

A. I can't remember the exact date, but --

Q. Did you create a spreadsheet or document that would

have the date on it?

A. Yes.

Q. Would it refresh your recollection if I showed you that

document?

A. Yes.

MS. BRITSCH: Your Honor, may I approach the

witness and show him the spreadsheet with the date?

THE COURT: Yes.

MS. BRITSCH: Thank you.

BY MS. BRITSCH:

Q. I believe Government 157 is a document entitled

"Ministry Children Directory."

A. Yes. It was either copied or created on that computer.

Actually, probably 2 of -- or February 15th of 2013.

Q. Okay. And when you say created or copied, does that

mean, for example, the user could have created that document

on that computer or downloaded it from an e-mail or

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Direct Examination by Lauren Britsch

something like that on that date to the computer?

A. That's correct.

Q. And can we please look at Government Exhibit 159.

Do you see Government Exhibit 159 on your screen?

A. Yes.

Q. Is that a document that you discovered in your

examination of the external hard drives seized from

Mr. Daniel Johnson?

A. Yes.

MS. BRITSCH: Your Honor, at this time we move for

Government Exhibit 159 to be admitted, please.

THE COURT: Objection?

MR. WEINERMAN: No objection, Judge.

THE COURT: All right. It will be received.

MS. BRITSCH: Thank you, Your Honor.

BY MS. BRITSCH:

Q. And I believe this is the document titled "Birthday

Names."

A. That's correct.

Q. And do you know -- can you tell us a date when this

document was created or copied to the external hard drive?

A. Yes. According to my spreadsheet that I have created,

it was either created or copied about the -- August 28th or

29th of 2013.

Q. Now, were these two documents and other document images

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Direct Examination by Lauren Britsch

and videos provided to the case agent for review based on

your examination?

A. Yes.

Q. On the computer that you examined, the Acer desktop,

did you find any cleaning software on that computer?

A. Yes, I did.

Q. And can you explain for us what cleaning software is.

A. Well, in this instance, CCleaner was on this computer.

And CCleaner goes through and deletes your Internet history

files. It goes and wipes or scrubs your deleted files. It

has the ability to do that. And it can also delete or scrub

your installation files and temporary files. It just cleans

up your computer.

Q. And how does that compare to a user just deleting files

on their own?

A. A normal user just deletes files with the operating

system. The data is still there. It's just the markers

that get deleted.

Q. So does this delete more or less than what a normal

user would delete just on their own?

A. This deletes more.

Q. And were you able to determine a date when that

CCleaner software was installed and downloaded onto

Mr. Johnson's computer?

A. Yes.

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Direct Examination by Lauren Britsch

Q. And was that date November 24th, 2013?

A. That's correct.

Q. And were you able to determine a time when that was

downloaded on the computer?

A. Yes. I believe just after eight o'clock Cambodian

time.

MS. BRITSCH: Okay. May I have one moment, Your

Honor?

THE COURT: Yes.

BY MS. BRITSCH:

Q. Mr. Poole, I have just a couple more questions about

the cleaning software and, in this case, CCleaner.

Do you often encounter cleaning software on

computers --

MR. SWEET: Your Honor, I believe there's a

question from a juror.

MS. BRITSCH: I apologize. I am sorry.

JUROR: What was the date, again?

MS. BRITSCH: I will ask the witness.

Is that okay, Your Honor?

THE COURT: Yes.

BY MS. BRITSCH:

Q. Mr. Poole, you mentioned the date the CCleaner was

downloaded. Could you reiterate that date for us again,

please.

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Direct Examination by Lauren Britsch

A. That was November 24th of 2013.

Q. And I would just ask you to reiterate the time again,

please.

A. It was just after 8:00 p.m. 8:03 or 8:04 p.m.

Q. And was that Cambodian time?

A. Yes.

Q. And was that because the computer was last used in

Cambodia?

A. Yes. The time and date -- the time zone was set for

Cambodian time.

Q. And back to the cleaning software, unless there are

other questions from the jury.

CCleaner and other cleaning software, is that

something you encounter regularly in the course of your work

as a forensic examiner for the FBI?

A. I wouldn't say it's on every computer, but -- not even

the majority of computers, but we do find it frequently.

Q. And generally what is the purpose of cleaning software?

What is it used for?

A. It's just to clean up your computer. It deletes your

Internet history to cover your tracks sometimes, or it's

just to clean up your computer to make it faster.

(Government counsel conferred.)

BY MS. BRITSCH:

Q. And Mr. Poole, if you deleted a photo or video or any

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Cross-Examination by Craig Weinerman

other file from your computer and then ran CCleaner on your

computer, would it go in and permanently delete that deleted

file?

A. With some options, yes. To go through and wipe or

scrub the unallocated space, it does go through and delete

all the deleted data.

Q. And if the cleaning software did go through and do

that, would you as a computer forensic examiner be able to

recover those files?

A. No.

MS. BRITSCH: No further questions, Your Honor.

THE COURT: All right. Cross.

CROSS-EXAMINATION

BY MR. WEINERMAN:

Q. So kind of start backwards.

So your testimony is it's not uncommon and not

unusual to see CCleaner software, correct?

A. The majority of computers that we see does not have

that software on there.

Q. But in -- as opposed to what you see in general, the

general public, it's quite common for people to use

CCleaner, correct?

A. I see it sometimes, yes.

Q. And it allows -- it frees up space on someone's hard

drive to delete files, delete things that a person no longer

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wants anymore, correct?

A. Yes, it can be used for that.

Q. Would you say it would be cheaper than buying an

external hard drive?

A. Yes. The software is free.

Q. Right. You can download that for free, correct?

A. Right.

Q. So I have a few questions for you about the two photos

that were glued together --

A. Yes.

Q. -- as you put it. And I want to try to use the same

terminology that you used, so let me look at my notes here.

So we have the active photo, the one that was on

top?

A. Yes.

Q. And the deleted photo. And that was underneath,

correct?

A. Yes. Yes.

Q. The photo underneath, there was no metadata associated

with that photo; is that correct?

A. That's correct.

Q. Metadata being information that would automatically

accompany the photo?

A. Yes.

Q. Such as the date and time it was taken?

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Cross-Examination by Craig Weinerman

A. Right.

Q. And the location?

A. That's correct.

Q. And the -- the software is sophisticated enough that it

would tell you city and country very often?

A. Well, sometimes, if it has metadata with it or XF data,

yes.

Q. All right. But we don't have that in this situation --

A. No.

Q. -- for the deleted photo, correct?

A. Not for the photo underneath, no.

Q. All right. So we don't know when that photograph was

taken?

A. No.

Q. We don't know if it was taken before or after

June 24th, 2012?

A. No, because it could have been copied from something

else.

Q. Right. So it could have been not taken by whoever had

this -- this iPhone. It could have been taken by someone

completely different, correct?

A. Yes.

Q. And we can't tell from this iPhone whether Mr. Johnson

purchased it new or purchased it used, correct?

A. No.

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Cross-Examination by Craig Weinerman

Q. We can't?

A. No, we can't.

Q. And the photo under the -- the deleted photo, we can't

tell who took it, correct?

A. That's correct.

Q. And we can't tell, again, when it was taken, correct?

A. That's correct.

Q. And we can't tell how it got on the phone, correct?

A. Correct.

Q. And we don't know where it was taken, correct?

A. That's correct.

Q. And we don't know when the underneath -- the deleted

photo, when it was deleted, correct?

A. That's correct.

Q. And you used a term, I believe, "date of creation."

Do you remember using that term?

A. Yes.

Q. And that doesn't tell us any of the questions I just

asked you a few seconds ago?

A. No. That was about the photo that was on top.

Q. Okay. So we have more information about the photo on

top, the active photo, correct?

A. Right.

Q. So all we can really -- all you can really say -- well,

one of the things you can say about this is someone sought

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to delete the deleted photo. And due to a glitch in the

system, it deleted part of the photo but not all of it?

A. Well, it deleted the photo, but it kept part of the

thumbnail.

Q. Right. So by that you mean the bordering piece on top

and on the bottom, correct?

A. That's correct.

Q. And in this deleted photo, although we don't have it in

front of us, would you say it would be fair to say that at

least 80 percent of the deleted photo was no longer

available?

A. Yes.

Q. So in other words, the active photo of the foot

occupied approximately 80 percent of the space for that

particular photo?

A. I would say about that percentage, yeah.

MR. WEINERMAN: Thank you. I have no further

questions.

THE COURT: Any redirect?

MS. BRITSCH: No, Your Honor.

THE COURT: All right. Thank you very much,

Mr. Poole. You are free to go.

Next witness for the government.

MR. SINHA: Your Honor, if we could, given the

hour, I think there are a couple things we might like to

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raise with the court --

THE COURT: Okay.

MR. PUHL: -- before we put the next witness on

and proceed to this afternoon's witnesses.

Could we perhaps take a break early for lunch and

just speak to the court?

THE COURT: All right. Let's do that.

Folks, we will break at 11:40. So let's go ahead

and start back up at one o'clock this afternoon.

(Jury out.)

THE COURT: Be seated.

All right. For the government.

MR. SINHA: Thank you, Your Honor. So the next

witness for the United States is Deputy United States

Marshal Brett Collyer.

Deputy Collyer is someone who we are just calling

to basically talk about the mechanics of how per diem and

witness fees are paid. So he's not someone, honestly, that

we really -- we expect to be very short. He is not someone

that we expected to call at the beginning of trial. As a

result of that, we didn't go through our normal time frame

and normal process of submitting --

(Reporter interrupted.)

MR. SINHA: Henthorn, H-E-N-T-H-O-R-N, and Giglio

G-I-G-L-I-O, requests to the marshals service and haven't

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Colloquy

had a chance to get them back.

So what we have done so far is we have had a --

one of our colleagues has had a thorough conversation about

those issues with Deputy Collyer.

With the court's permission, over lunch, I myself

will have a thorough conversation with him about that. We

don't believe that there are any issues, but I at least want

to put on record that that's what we have done and what we

haven't done. And if Mr. Johnson's counsel would like us to

try to delay putting him on so that we can do a formal

inquiry, you know, we could try to do that.

THE COURT: Is he going to testify just in general

as to how payments are made to witnesses and what the per

diem amounts are that are paid to witnesses? Or is he going

to speak specifically to providing these particular

Cambodian witnesses and victims their per diem payments?

MR. SINHA: It will just be generally, Your Honor.

I mean, I think the closest that we would come to anything

specific is I anticipate asking him whether it's possible

for witnesses to get an advance on their per diem if they

are traveling, you know, in from a long distance but nothing

specific about these witnesses.

THE COURT: All right. Does the defense have any

objection or concerns about the testimony of Marshal --

Deputy Marshal Collyer?

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MR. WEINERMAN: Well, Judge, as the court will

recall, we entered into -- well there's this judicial notice

that was read to the jury. It seems to me that that covers

it.

But if there's new information that they intend to

elicit from this witness, that's one thing, but if it's

really just repeating what's in the judicial notice, which

is, I think, a verbatim copy of the federal regulation, then

it just seems to me it's not relevant.

THE COURT: Well, we certainly did cover it in the

judicial notice. However, it really -- I don't think the

notice really talks about, I guess, how the payments are

transferred or who makes the payments or -- you know, is it

a check? Is it cash? Is it -- or what's considered when

making a $500 payment, maybe, which may cover, you know, an

advance, so.

And it certainly seems to be a central part of the

defense, and I think the government should have an

opportunity to address it with a live witness.

So I don't see any problems with him testifying at

one o'clock.

MR. SINHA: Thank you, Your Honor.

THE COURT: All right. Any other issues we need

to discuss?

MR. SINHA: I don't think so, Your Honor.

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 77 of 80
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Colloquy

THE COURT: Okay. I am working on instructions.

I do hope to, you know, get some -- probably need to get a

better sense once the defense begins, but I think there may

be some specific ones I may have you look at later to

clarify some of the language.

MR. SINHA: Your Honor, I guess if the court is

looking at instructions, the only thing that I recall us

wanting to raise with the court at some point is on the

court's offense-specific instructions where the court

defines what a commercial sex act is. I think in accordance

with 18 U.S.C. 1591 -- I think maybe the definition is maybe

1596. The court's language, I think, gets to the same

place, but it doesn't exactly track the statute as to -- I

think it's "for which anything of value is given" or

something -- something -- that specific phrase.

THE COURT: What's the statute I should be looking

at?

MR. SINHA: It's -- here, we can grab it. I think

it's 15 -- it's right around 1591. It might be 1596.

MR. WEINERMAN: 1591.

MR. SINHA: I am sorry. It is 1591.

THE COURT: Okay.

MR. SINHA: So we would ask that the court's

instruction please track the language in the statute on

that.

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 78 of 80
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Colloquy

THE COURT: All right. I will take a look at it.

MR. SINHA: Thank you.

THE COURT: All right. Thank you. We'll be in

recess until one o'clock.

(Recess.)

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Case 6:14-cr-00482-MC Document 277 Filed 10/24/18 Page 79 of 80
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I hereby certify that the foregoing is a true and

correct transcript of the oral proceedings had in the

above-entitled matter, to the best of my skill and ability,

dated this 8th day of May, 2018.

/s/Kristi L. Anderson

_______________________________________________

Kristi L. Anderson, Certified Realtime Reporter

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