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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Government, Case No. 09-cr-20264

-vMICHELE JOHNSON, also known as

Angela Jackson, also know as

Dianne Anne Johnson, also know as

Nancy Lori Walker,

Defendant.

____________________________________/

JURY TRIAL

Volume III

BEFORE THE HONORABLE STEPHEN J. MURPHY, III

United States District Judge

Theodore Levin United States Courthouse

231 West Lafayette Boulevard

Detroit, Michigan

Thursday, March 11, 2010

APPEARANCES:

FOR THE

GOVERNMENT:

Mr. Louis Gabel

Ms. Sarah Robichaud

U.S. Attorney's Office

211 West Fort Street

Detroit, MI 48226

(313)226-9756

FOR THE DEFENDANT: Ms. Suzanna Kostovski

Law Offices of Suzanna Kostovski

220 Bagley

Suite 1015

Detroit, MI 48226

(313)965-6050

Also Present: Ms. Alissa Greer, Courtroom Deputy

Ms. Susan McNeill, Law Clerk

Special Agent George Powell

To Obtain a Certified Transcript Contact:

Karen Klerekoper, CSR, RPR - (313)961-1119

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TABLE OF CONTENTS

_____________________________________________________

Witness for the Government: PAGE

SPECIAL AGENT GEORGE POWELL

Direct Examination (Con't) by Mr. Gabel................ 15

Cross-Examination by Ms. Kostovski..................... 34

Voir Dire Examination by Mr. Gabel..................... 57

Voir Dire Examination by Ms. Kostovski................. 61

Voir Dire Examination by the Court..................... 65

Closing Argument by Mr. Gabel.......................... 82

Closing Argument by Ms. Kostovski...................... 100

Rebuttal Argument by Mr. Gabel......................... 110

Jury Instruction by the Court.......................... 115

IDENTIFICATION/RECEIVED: PAGE

Government's Exhibit 3 re-received (purse/fanny pack).. 4

Government's Exhibit 11 (flash drives)................. 19

Government's 18 & 18A (counterfeit from purse)......... 26

CERTIFICATE OF COURT REPORTER...........................140

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Detroit, Michigan

March 11, 2010

At 9:24 a.m.

* * *

(Call to Order of the Court)

MS. GREER: The Court calls case 09-20264, United

States of America versus Michele Johnson.

THE COURT: Okay. We are resuming our jury trial

and I'm chomping at the bit to go. I appreciate everybody

being on time and I regret -- you may all be seated. I

regret being a little bit late this morning.

What is going on, Mr. Gabel? They say you have

two things.

MR. GABEL: Two issues. First, we are adding two

exhibits to our exhibit list, one of which the defense has

no objection to. It's a postal bag. That will be the new

Exhibit 23, as opposed to 23 that was initially on our

list.

THE COURT: Hold on, let me get my pen here. My

little red pen is missing. Thank you, Alissa.

Government's 23 is going to be what?

MR. GABEL: This postal bag. I understand there

is no objection, so I will move for its admission.

MS. KOSTOVSKI: No objection, of course. I

believe he's going to put the exhibit in through Agent

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Powell as soon as we establish chain of custody, and other

foundation, I'm sure there will be no objection.

THE COURT: All right. Subject to establishing a

minimal foundation to satisfy the defendant's concerns, we

will receive 23.

(Government's Exhibit 23 re-received)

THE COURT: Go ahead, what is next?

MR. GABEL: One additional exhibit, Exhibit 24,

which, in the Government's estimation, is a tally sheet for

counterfeit currency being passed. This was found in the

defendant's purse. I understand the defense objects but I

don't think they go -- her objections go to the

admissibility. They go more towards weight.

THE COURT: Pass it to Ms. Greer, if you would,

please, Mr. Gabel, and let me take a quick look at it.

MR. GABEL: I believe the defense's position is

we don't know whose handwriting it is. We don't really

know what's being reflected in there, but I think that

comes up in drug tally sheets oftentimes and that goes more

towards weight. Ms. Kostovski can argue this is ambiguous

but it certainly is relevant.

THE COURT: Who pulled this out of Ms. Johnson's

purse?

MR. GABEL: It was pulled from her purse, yes.

THE COURT: Who pulled it out?

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MR. GABEL: Agent Powell did.

THE COURT: Here you go, Ms. Greer. If he can

authenticate it and lay a foundation, I will let you admit

it over objection and you can argue the matter to the jury

but I'd be careful with that because it is true that there

is nothing beyond handwritten numbers on there and we don't

know whose handwriting or what it means, so I will let you

make your objection and -- go ahead, do you want to say

something?

MS KOSTOVSKI: Yes, Your Honor. First of all, I

have never seen that until now. I actually met with Agent

Powell and Mr. Gabel on Monday to review the exhibits, the

physical exhibits as well as the paper exhibits. This was

never presented to me at Monday morning's meeting so I

don't know where this came from. I have never seen this

before.

THE COURT: I think the better course would

probably be to not offer that, Mr. Gabel, in the grand

scheme of things but, again, if you're able to establish a

foundation, I will consider admitting it. I take it that

your issue goes beyond admissibility. It goes to a Rule 16

violation, or something. What's --

MS. KOSTOVSKI: That's correct. There's a

standing order here to present all of that. If it was not

presented to any other attorney prior to me and I've never

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seen it and, again, Judge, they had the opportunity to give

it to me on Monday and say to me, you know, here is

something, maybe you haven't seen it.

MR. GABEL: Judge, I guess I can shortcut this.

We will not admit it, that's fine, out of an abundance of

caution. It was mixed in with a number of papers that were

in her purse. A closer inspection uncovered it but to

short-circuit all of this and avoid any potential issue

going forward, we will just put it back with all the

other --

THE COURT: All right. I think that's a very

laudable decision.

MS. KOSTOVSKI: Thank you, Mr. Gabel.

THE COURT: Thank you, both. Good job.

Now, let's talk jury instructions. Maybe we're

more optimistic than I gave you all credit for last night.

Susan, our law clerk, advises that she has put together a

joint packet of instructions and counsel have been highly,

highly professional about this. My understanding is that

the joint book of instructions that she gave to you this

morning, which I have a copy of in front of me, have been

worked out and agreed upon between the two of you. There

is an instruction dealing with counterfeiting that you have

augmented by stipulation and we're essentially ready to go

with these. Correct?

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MS. KOSTOVSKI: That's correct.

MR. GABEL: Yes.

THE COURT: All right. Well, then I'm going to

have Susan type up a final pack and what you have in front

of you is what we're going to give to the jury. Okay?

MR. GABEL: Thank you.

THE COURT: Anything else?

Sorry I jumped on you about the redirect

yesterday, Ms. Robichaud.

MS. ROBICHAUD: No problem.

THE COURT: You ran into a buzz saw with the

defense attorney. She lodged an objection and --

MS. KOSTOVSKI: Thank you, Judge.

THE COURT: That's how we learn. Right.

MR. GABEL: Trial by fire.

THE COURT: That's how we learn.

So we're ready for the jury. We're going to

finish with Agent Powell. We're going to hear from the

defense and then we're going to be ready for instructions

and closing arguments today. Correct?

MS. KOSTOVSKI: Right.

THE COURT: Excellent. All right. Good. I want

to thank the U.S. Marshals for being on time and I have

got -- since it is likely to be our last day together, I

had Julie brew some of my expensive French roast from

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California, so help yourself to that and we're ready to go.

(Jury in at 9:32 a.m.)

THE COURT: Welcome back, everybody. How are you

today? You may all be seated, 15 minutes over schedule and

we had a short delay not due to the parties or the lawyers

or anybody else. We had a couple legal issues to talk

about so we're going to get going. I have very good news.

The lawyers have been remarkably professional in using the

time when we were not in session to resolve legal issues

and I think, quite candidly, we should be able to give you

your instructions and closing arguments today. So it's my

expectation we will wrap up the case today and we'll have

today and tomorrow for deliberations. But we will talk

about that in a little bit.

The case has been efficiently tried and that's to

the credit of the lawyers and we have worked hard to

minimize your time here in court and on delays. So we are

very grateful for the way this case has gone and for your

attention. All right.

With that, I will turn back to Mr. Gabel -- go

ahead, sir.

MR. GABEL: Your Honor, after you just mentioned

that we haven't had delays, I hate to cause a brief delay.

There is one more legal issue that we --

THE COURT: Come on up. I know the jury wants to

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get their daily dose of white noise here.

(At sidebar on the record)

THE COURT: Okay.

MR. GABEL: The issue is the admission of the

defendant, I have to establish a foundation for Powell

because you have conditionally ruled that it's admissible.

Now, in laying the foundation for Powell regarding the

Miranda in the natural sequence of things, he would mention

that she invoked, and then we have got an issue because

there is a potential mistrial if she mentions -- if I

elicit testimony that she invoked her rights and refused to

speak.

So what I suggested doing was going with Powell

in a different chronology, saying were you at the station

and alerted that she wanted to speak with you? Yes.

What happened?

I went down, I said what's up. She blurted out

everything and told me.

At that point -- so he will testify to that. And

then I'll say, prior to that, had you told her about her

Miranda rights? And he will just say yes and it won't

bring up the issue that she invoked them because I'm

worried about the potential of us commenting on the fact

that she invoked her rights. That's the way I can see it

done.

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MS. KOSTOVSKI: Because she did invoke and then

he stopped and then came back again.

MR. GABEL: If she opens the door, I don't

think --

MS. KOSTOVSKI: I don't know.

MR. GABEL: -- it's on us.

THE COURT: Let me ask you a question. Your

position is that upstairs on the first floor your client

invoked her right to remain silent. Right?

MS. KOSTOVSKI: And her right to counsel.

THE COURT: And her right to counsel. Now, I

take it that from what I have heard, both in your factual

presentation, Ms. Kostovski, and from the government, that

what happened next was that Powell ceased questioning and

sent her back downstairs. Right?

MS. KOSTOVSKI: That's what he says in his

report. He has never been questioned. Remember, we never

had a separate hearing on this just based on what was

stated in his report. And I also said to you yesterday

that I never received the waiver form, signed or unsigned.

I've never seen it until it was mentioned yesterday but,

again, it was not presented.

THE COURT: Because it was not signed.

MR. GABEL: Yeah, it is not signed.

THE COURT: All right. It seems to me we all

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agree to the fact that she was given her rights, she

invoked them. They ceased questioning and went downstairs.

We also know that there's never been a prior hearing on

this because no motion was filed and that complicates

things. So to be fair, I've read the cases, and there is a

new one, Maryland versus Shatzer, that was decided February

24, 2010 in the Supreme Court, that essentially says the

testimony of Ms. -- or the statement of Ms. Johnson

downstairs is deemed to be involuntary if the police raised

any issue or put any pressure on her to drop her invocation

of her rights. So I think where we start this is with

Powell going downstairs.

MR. GABEL: Speak just a --

THE COURT: I will be quieter. I think where we

start this is with Powell going downstairs and testifying

about what happened and if he --

MR. GABEL: Going downstairs at her request.

MS. KOSTOVSKI: After the first time --

THE COURT: After the first time.

MS. KOSTOVSKI: -- mentioned the first time at

all.

THE COURT: Listen, after the first time she goes

downstairs, his testimony starts when he is alerted about

her being downstairs and we hear what happened there. If

she, without provocation, says to him, I want to talk to

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you, and spills her guts, I think that is compliant with

the case law as a waiver that can be admitted. If, in any

way, he or a Redford police officer, suggested or coerced

this statement, it's inadmissible.

Now, if it's admissible, then I think in fairness

to the defendant, you have the right to go into what

happened previously, but I would start with what happened

downstairs --

MR. GABEL: Now, can I --

THE COURT: -- to establish whether or not the

initiation was hers or if it was an involuntarily statement

coerced by the police, which I would rule out. Okay?

MS. KOSTOVSKI: Shouldn't we take some testimony

from Ms. Johnson on that? All we have, Judge, is Agent

Powell's recitation in his report. We have no other -- no

other witnesses. They had Kimberly Considine, I believe

that was probably a reason they her on the witness list,

and Detective Schiller.

MR. GABEL: Ms. Considine, she was here yesterday

ready to testify until the conditional ruling was made that

if Powell testified consistent with the proffer, that it

would be admitted.

THE COURT: I am in a jury trial with citizens.

The defendant has been massively uncooperative here. I

don't know how we stop the trial to have her testify, and I

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don't even know if she would testify at this point without

having filed a motion. I guess I would be willing to hear

from the officer about what happened in his view on the

first floor and --

MR. GABEL: She was here yesterday, and her

schedule -- in case we had to have this come up, but once

the ruling was made, she -- her schedule has been --

THE COURT: How important is this stuff?

MR. GABEL: I believe defense counsel is going to

make the point that this counterfeit money wasn't good

enough to deceive anyone and I think the admission that it

was actually being passed and she was getting real money in

exchange is important to counteract that defense.

THE COURT: I'll tell you what, this is out of

control here, your evidence of guilt here, in my opinion,

is overwhelming. I don't even see this as a close case,

however, the evidence is clearly relevant. It's clearly,

based on what I have heard from both sides, prima facie

admissible but I don't want to get in trouble on a case

like this over an issue of this magnitude and sensitivity.

What I would say, in all candor, given the

unusual posture, the late entry into the case of

Ms. Kostovski and the complete absence -- and I want you to

know I think I could be very hard core about this and admit

all this stuff, but I'm trying to be fair. You're welcome.

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I would say, just omit this from the agent's

presentation on direct, let Ms. Kostovski cross-examine him

and if we need to get this in on redirect, we can do it and

I will hear from both of you.

MR. GABEL: With all due respect, I have already

told the jury in my opening that they are going to hear

this, based on my confidence that it was going to be

admissible. Now, if --

THE COURT: That's not going to hurt you. She

objected to that.

MR. GABEL: If we are going to have a

hearing -- I know but it looks like --

MS. KOSTOVSKI: Well, no --

MR. GABEL: If we're going to have a hearing on

credibility, we're going to have Agent Powell up there

testifying consistent with his report. And then, in my

opinion, a totally incredible defendant saying what he says

is wrong. It's going to be a credibility determination.

I'm happy to have that. I think it will take 15 minutes

over the course of a break to have Powell just testify

briefly about those circumstances. She wants to take the

stand, that's fine. The cross-examination shouldn't be

long. We can do it at a break and then we can just go on

with it. I think it is important --

THE COURT: Finish off Powell. Let Ms. Kostovski

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cross-examine. We'll take a break and revisit the issue

and we can hear from him, hear from her and present the

testimony on redirect if you still feel it's necessary.

All right?

MR. GABEL: Okay.

THE COURT: Let's do that.

MR. GABEL: Thank you.

MS. KOSTOVSKI: Thank you, Judge.

(End of discussion at sidebar)

THE COURT: The lawyers got things worked out.

We are going to finish up Agent Powell's testimony and then

we are going to take a short break after that. Okay?

Ready, Mr. Gabel?

MR. GABEL: We are.

THE COURT: Agent Powell, you were on direct exam

yesterday. You are still under oath and please resume the

witness chair.

THE WITNESS: Thank you, sir.

THE COURT: Thank you.

DIRECT EXAMINATION (Con't)

BY MR. GABEL:

Q. Good morning, Agent Powell.

A. Good morning.

Q. You testified that you collected the evidence that was

found in the defendant's car and in her purse. You

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collected that from the Redford Township Police Department;

is that correct?

A. Yes, I did.

Q. And that includes Government's Exhibit 5?

A. Yes, sir.

Q. Take a look at that and hold it up for the jury. I

would like to ask you about this gun. Could you

explain -- is this a typical handgun that would be

confiscated from someone involved in criminal activity?

A. Typical? I can't say it's typical but, I mean,

pistols, handguns, weapons that are used for either

protection, or some sort, it's not unusual.

Q. What is connected to the front of that firearm?

A. It's a suppressor.

Q. A suppressor. What does it suppress?

A. Essentially, the suppressor, it takes the gas that

comes out, the flash that comes from the bullet expelling

from the barrel, this device actually eliminates the actual

lighting or the flash you would normally see when you're

firing a weapon. So a suppressor reduces that to where you

can't see it and what happens when that is going on, it

will, what we call, target reduction. So we're trying to

identify where those shots are coming from, it's very hard

to see if a suppressor is on there, especially in light or

low visibility because you can't see where the round is

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actually being fired from.

Q. When guns are confiscated from individuals, is it

typical they have a flash suppressor attached to the front?

A. No.

Q. After receiving this purse, Government's Exhibit 3

from Redford Township, did you conduct a further search of

this purse?

A. I did.

Q. And could you describe, was the purse full, was it

relatively empty? Could you describe in general what the

contents were?

A. The purse was loaded with miscellaneous papers,

plastic bags, envelopes and papers inside of papers, just

an assortment of different items, among other things. Also

within there was a smaller type, like, little -- we used to

call them lady's pocketbook or little change purses, things

of that nature as well.

Q. I'm handing you what has been marked Government's

Exhibit 11. Go ahead, finish that. Well, actually, just

wait until we establish the foundation --

A. Okay.

Q. -- if you could. Have you seen what has been marked

as Government's Exhibit 11 prior to today?

A. Yes.

Q. Where did you first come across Government's Exhibit

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11?

A. These were found in the bottom of the defendant's

purse, the brown, tan-looking purse.

Q. Government's Exhibit 3?

A. Yes. Is that her brown --

Q. Yes.

A. Yes.

Q. Did you obtain a search warrant to review the

contents -- actually, tell the jury what Government's

Exhibit 11 is.

A. What they are, are two, what they call flash drives or

thumb drives and, essentially, they are little portable

file cabinets, for lack of words. They are able to hold

data or files or information on these little devices and it

makes that information portable so that you take it from

place to place and use various computers to hook up to it.

Q. So would it be fair to characterize them as glorified

computer disks?

A. Yes.

Q. And did you obtain a search warrant to review the

contents of those flash drives?

A. I did.

Q. And could you describe the process that was undertaken

to review the contents of those flash drives?

THE COURT: Can I interrupt briefly? Is this in,

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Number 11?

MR. GABEL: We would move for its admission now.

THE COURT: Objection?

MS. KOSTOVSKI: No objection.

THE COURT: Okay. Government's Exhibit 11 is

received. Go ahead, Agent, I'm sorry to interrupt you.

(Government's Exhibit 11 received)

THE WITNESS: No problem.

I'm sorry, could you --

BY MR. GABEL:

Q. Could you please describe the process that was used to

review or retrieve the content off of those flash drives?

A. We use what we called a forensics analysis when we're

taking particular data off of a device that has been

obtained. And the easiest way to kind of understand that

is it's like taking a photo of all the information that's

on the particular devices and capturing that information in

its present state so that it's not disturbed.

Q. Did you something call a Write Blocker?

A. Yes.

Q. Could you explain to the jury what a Write Blocker is

and why you would have used it?

A. Again, the Write Blocker is, again, a forensics tool

that actually allows us to be able to capture that

information without disturbing its present state. So,

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what, essentially, I'm saying is the way that we are able

to put that information on a disk and display it later as

evidence or in court, is exactly the way it looked as on

that particular disk when the actual whomever would have

had it and have loaded that information on it.

Q. Once you took an image of what was on the flash drive

using the Write Blocker, did you then save the contents of

what was on the flash drive on that computer that you have

on the stand with you?

A. Yes.

Q. And could you just describe for the jury generally

what you found on the flash drive?

A. Basically, on both of these flash drives, we found an

assortment of bills, different types of -- like when we

spoke about it yesterday, the plates, the front plate, the

front of the bill, the back of the bill, the Treasury seal,

fabric, images of fabric or paper fabric that was used.

There was numerous bills that were cut and paste. In other

words, when I say cut and paste, you may have seen a

portrait of, say, a $50 bill with Grant's face on it. Then

you would see where that serial number we spoke about

yesterday, that may have been cut out and moved and placed

somewhere else on another bill, just basically the

manufacturing of a note.

Q. Could you please show the jury some of the contents on

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the screen that you recovered from those flash drives, and

could you describe for the jury what they're seeing and

where this was found on the flash drive?

A. This was found in one of the photos in the drive.

There are several other files, if you will, inside of the

files. This particular file inside of there was named

"pictures." And what you are looking at here on this first

one is actually named, as you can see, 2009, it says

"fabric." So what we looked at when we see this is that

there was an image taken of fabric that had a particular

textured look to it. And then, as we moved over, here you

have the bill, which is the back plate of the bill, that

was actually cut and paste, placed over top of the fabric.

And just as you continue to go on, you are seeing how the

bill is actually being processed or manufactured in an

electronic version. And once it's completely done, it's

just -- let's just take, for example, this one here. Once

it's completely done, you have an image similar to this.

And what happens after it's all been completed, it's just

like any other Word document or anything else. You simply

just begin to print it out on a high-laser printer and you

will have what looks to be a genuine note.

Q. And along with this counterfeit money, I'm sorry, the

images of counterfeit money that we see in this folder,

were there other folders that had similar images?

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A. Yes.

Q. I would like to focus on some particular images that

you were focusing on in your investigation, some involving

the security features on bills. Were you able to

scrutinize individual images to determine if they would be

useful to use in counterfeiting?

A. I did.

Q. And could you -- let's go through those here. The

first one that's on the screen, that was an image that was

on one of those flash drives?

A. Yes, it was.

Q. And could you describe for the jury what this is and

how it's relevant to this case?

A. Essentially, what you're looking at here is the

microprinting of the security strip, which we all see when

we go to the store and someone holds up the bill or a bill

in the air and they are looking for that strip. What's

placed in currency is the numerical symbols and then United

States, U.S.A.

So in this case you're seeing U.S.A. 50, and

that's indicative for the security thread that would go on

a $50 bill. This was imaged and obviously taken off of a

site, placed into, again, the electronic hard drive. And

all you do is you cut and paste, move that -- move a strip

over to one of the bills, as I showed earlier and, again,

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you're creating that note along with other security

features.

Q. Is this multiple strips that you would have to cut out

each individual one individually to insert into a bill?

A. There is one strip per bill.

Q. And this shows more than one strip; is that right?

A. This just shows -- right. What you're looking at here

is just basically -- it went to a site and probably

downloaded the particular, like a know-your-money, or some

type of site, and now you just sit and simply highlight,

cut and paste.

Q. I would like to hand you Government's Exhibit 16A,

please, and if you would look at the back side of that,

could you tell the jury what you see on the back side?

A. Okay. What we have on the back side of this

particular uncut sheet is one of those -- one of a strip

similar to what you see here on the screen. So it's been

cut and paste. It's been printed, and relatively evenly,

it's been evenly cut and laced on the back of this

particular note here.

MR. GABEL: I will ask for permission to pass

this to the jury while we continue the testimony?

THE COURT: Yes, sir, Mr. Gabel. Go right ahead.

BY MR. GABEL:

Q. Let's look at a couple other images. Let's just focus

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on a couple more. Could you describe what this image is

and how it's relevant to counterfeiting?

A. What you're seeing here is the Treasury seal, again,

another plate that's used in the creation of a note. One

thing to pay close attention to on a Treasury seal, when

you're making a copy such as this, those fine points that

you see in green around the note that looks like little

points, we call them saber-tooths. The more keen and

defined those are, those are ways that we are able to

detect whether a note is counterfeit or not. So when

you're working with an image that is obviously made with a

very profound type of -- a very profound picture to kind of

work with, it gives you a better picture, like when you

actually cut and paste and put it on a particular bill.

Unlike what we see where someone tries to take a note,

stick it on a color printer and just copy the front, copy

the back and print it out. That's going to look very

smudged. The edges won't look very crisp and clean.

Q. If you are using something like this image, you will

have a more precise definition?

A. It helps to sharpen it up. I mean, the better

pixels -- when I say pixels, pixels is what makes up that

little coloring. The better the original is, the better

the copy will be. So kind of looking at it that way.

Q. Could we take a look at another image?

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Could you describe what you see in this image

that's relevant to counterfeiting?

A. Here, you just simply are taking one of the edges off

of the bill. Again, on the back of the portrait you will

have some microprinting where the $100 symbol, numeric

symbol is. Once again, if you're taking a photo of a good

copy, it just helps enhance the copy that you make from

that. Again, just making very defined pictures of the back

of the portrait. And it's little things that's relevant

here.

Just to give you an example, here, in the clock,

that's something that you won't really pay attention to on

the back of a bill, but the clock in the hands that are,

looks to be set at about 1:30, you wouldn't normally be

able to see that on just a photocopy because it would

looked smudged. So, there again, these are just things

that people -- if you're working with a good copy, it's

just going to make that copy again look good. I'm

repeating it but I'm just trying to kind of drive home a

point of why this is all important things to us. Just the

same thing, same thing.

Q. Okay. You can go ahead and close that down. I'm

handing you what's previously been marked as Government's

Exhibit 18. I'm handing you what has been previously

marked as Government's Exhibit 18 and included within

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Exhibit 18 is Exhibit 18A. Have you seen Government's

Exhibit 18 prior to today?

A. I have.

Q. Could you describe where you first encountered it?

A. This was -- this was also taken from the defendant's

purse inside of another smaller little change purse, so to

speak, like a little wallet.

MR. GABEL: Your Honor, the government moves for

the admission of Government's Exhibit 18.

THE COURT: Any objection?

MS. KOSTOVSKI: No objection.

THE COURT: Does that include 18A?

MR. GABEL: It does.

THE COURT: All right. 18 and 18A are received.

Please go ahead.

(Government's Exhibits 18 & 18A received)

BY MR. GABEL:

Q. I'm also handing you now what has been marked as

Government's Exhibit 23. Have you seen that item prior to

today?

A. Yes.

Q. When did you first see that item?

A. At the Redford Township Police Department.

Q. Is it your understanding that that item came from the

defendant's trunk?

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A. Yes.

Q. And do you know what was contained within that item

when it was first uncovered in her trunk?

A. This, from what I was told, the counterfeit currency

was in here and when I actually arrived there, there was

some counterfeit money inside of this particular envelope.

Q. Was there just one envelope or was there another

envelope that you saw when you went to Redford Township

Police Department?

A. I saw two.

Q. What happened to the second envelope?

A. It was just ripped up to open up, so we just took the

one, I used the one, carried the evidence bag, that's all.

Q. Was the other envelope discarded?

A. Yes.

Q. Now, you mentioned that you were able to determine

that the money found in the trunk and the purse was

counterfeit and I would like to show you a demonstrative,

sort of drive home that point.

MR. GABEL: Your Honor, may Agent Powell come

down from the stand in the well --

THE COURT: You bet.

MR. GABEL: I understand there is no objection to

these demonstrative exhibits.

THE COURT: Visual aids that the jury is not

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going to get at the end of the case?

MR. GABEL: These will not be given to the jury

at the end of the case. They will not be admitted into

evidence, however, the bills that are blown up have been

admitted into evidence, so they will get the bills.

THE COURT: You are okay with that procedure, I

take it, Ms. Kostovski?

MS. KOSTOVSKI: Yes, Your Honor. I have no

objection.

THE COURT: Thank you. Come on down, Agent. You

can stand next to the -- ladies and gentlemen, this is

known as demonstrative -- I hesitate to call it evidence.

This is a demonstrative presentation by the government

based on evidence that's in the case using Agent Powell's

testimony to help clarify and clear up and guide you

through what that evidence is.

Go ahead, Mr. Gabel.

MR. GABEL: Thank you.

BY MR. GABEL:

Q. Agent Powell, is it your understanding that the top

bill on this demonstrative aid was a genuine $50 bill

recovered from the defendant's purse?

A. Yes.

Q. And is it your understanding that the lower image is

an image of a counterfeit bill also recovered from the

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defendant's purse?

A. Yes.

Q. Exhibits 9A and 18A, for the record.

Could you please describe how in comparing the

genuine to the counterfeit you were able to determine that

this was, in fact, counterfeit money and not genuine U.S.

currency?

A. Okay. Basically, what I did is just took a copy of a

genuine note, and some of the main things I'm pointing to

is what I spoke about earlier, where the first red arrow is

placed where it says "seal." We're able to see the

saber-tooths are very crisp, very fine. You can actually

see the little dots that's inside of the Homeland Security

and balance scales of justice inside of the seal.

I also put an arrow for color shifting ink.

These are all identifiers of security features that you

will commonly hear or that is available for the general

public.

What color-shifting ink does, essentially, you

are able to take a bill, 20, 50, 100, just move it back and

forth and you will actually see the ink change colors.

Sometimes it goes from maybe a slight yellow-ish, gold-ish

color to a more darker black color of some sort. But the

bottom line, it changes colors. And that you will not be

able to duplicate when you print it, even if you use a

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high-quality printer. You cannot reduplicate that

color-shifting ink because this is a separate ink process

once the bill is actually made up.

I also made an another arrow toward the security

thread and again just to explain the security thread, it's

microprinted. To the eye you would actually need a

particular microfying (sic) glass. You can see it when you

hold it up. But it's very fine printing. It's very

defined. It's very clear when you're looking at it.

Again, in a counterfeit note that's just simply printed, as

I spoke earlier, just placed on a scanner and just made a

copy of, that would not come out. It won't be clear. When

you place that strip in, or cut and paste like we spoke

about, you will see a defined security thread.

The last thing --

Q. Just to interrupt, the security thread, on that point,

did you examine the counterfeit found in the person's trunk

and could -- when you held it up to the light, could you

see at least an attempt to re-create the security strip?

A. You can see the attempt inside of it.

Q. How could you tell that that wasn't a real security

strip, is there a way?

A. Well, again, what you're -- again, you're looking for

a defined -- again, it's not going to be as defined in a

counterfeit note as a genuine note because, there again,

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it's a copy of a copy, or it's a copy from -- in this case

it's a copy from an original bill but it's still a copy.

Just the other last point was just the

microprinting, and this is found, generally, somewhere on

different notes but just for purposes of this case, I'm

depicting the 50s. In this corner it's on both sides. It

says -- microprinting is, in the corner here is the -- it's

actually written 50, the word F-I-F-T-Y. And you can see

that with a magnifying glass on a genuine bill. On the

counterfeit note you won't be able see that, or a fake

note, you won't be able to see that.

Q. All right. You can go ahead -- is there anything you

would like to discuss on the back of the bill?

A. It's -- no. Just this other one here is basically

going back over the microprinting, and that's pretty much

the bottom line. These are just regular security features,

but this, again, microprinting, that's all.

Q. Thank you. You can go ahead and have a seat again. I

will put these in the bag.

Given your experience investigating counterfeit

money, would you consider this above-average counterfeit

money, poor counterfeit currency, counterfeit currency that

might not dupe someone? How does this measure up, in your

experience?

A. Generally, because of the security features that you

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won't see that we look for, the work and the quality and

the time that was placed into this, I would have to say

it's above average from the normal bill that's, again,

being placed on a color copier, printed, copied both sides

and just printed out.

Q. So, in your opinion, would this have been time

consuming to make, the counterfeit money that was found in

her person trunk?

A. Very, very time consuming.

Q. And the security features, like the security strip and

the watermark, is it true that you found those in the

counterfeit bills found in her purse and trunk?

A. You can see those security features and this is,

again, by using the high-quality printer, you're basically

making a copy of that. So it's not that it's actually

embedded in there like the original progress, but it's a

copy, you are looking at that photocopy.

Q. What would be the reason for trying to re-create those

security features?

A. Well, this is what, again, as I stated, what the

general public is aware and of the common features to look

for most readily, these are the things that if you go to

the store, you are going to see someone holding that bill

up to the light, looking for a watermark and a security

feature and if you see that, and more than likely, you are

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going to accept that bill and think it's genuine.

Q. Now, have you had an opportunity to check the serial

numbers on some of the bills that were recovered from

Ms. Johnson's purse or trunk to see if they have turned up

at merchants?

A. Yes, I did.

Q. And what were your findings?

A. Well, in checking on one bill that we seen --

Q. I believe it's Government's Exhibit 15A?

A. I need to see it. Yes. In checking this -- this

seemed to be a common bill, a common number that was a

reappearing theme as far as the serial number. This bill

had been passed at least 27 times in a short period of

time.

Q. When you say this bill, I'm sorry, I want to be clear

for the jury, does that mean a bill with that serial

number?

A. I'm sorry. Exactly. What we do is we create a

database. Each time that there is a pass of a bill and

that merchant either turns it into the bank and the bank

subsequently turns it into us, that note goes into a

database. And what happens is the way we track these

numbers or track these bills is by the serial numbers. So

just running this number on this particular bill, we found

that it was passed 27 times in a short period of time

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during last year.

Q. And of those 27 times, was it ever caught as the

person was passing it or did the people later discover it

and then report it to the Secret Service?

A. These are later reported and this is, like I say,

something that we get after the fact, after it's either

been given to the bank, the bank finds it, it's kicked back

out or maybe later as the teller -- as the cashier is maybe

counting down the drawer, and it's being verified and maybe

their supervisor, or someone may catch it and it's there,

pull it on and sent to the bank and the bank sends it to

us.

Q. So bills with those serial numbers had successfully

duped people on occasion?

A. Yes.

MR. GABEL: I have no further questions. I pass

the witness for cross-examination.

THE COURT: Thank you very much, Mr. Gabel.

Ms. Kostovski, it's your turn, now.

MS. KOSTOVSKI: Thank you.

CROSS-EXAMINATION

BY MS. KOSTOVSKI:

Q. Good morning.

A. Good morning, ma'am.

THE COURT: Both sides realize that there may be

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some open issues and redirect with this witness. I just

wanted to note that.

Go ahead, Ms. Kostovski.

MS. KOSTOVSKI: Thank you, Judge.

BY MS. KOSTOVSKI:

Q. Now, Agent Powell you spent a lot of time yesterday,

and mainly today, discussing the manufacturing process of

counterfeit. Correct?

A. Yes, ma'am.

Q. All right. I just want to clarify with you for the

jury, that this is not a manufacturing case, correct?

A. Correct.

Q. This is a possession of counterfeit money case,

correct?

A. That's the charge.

Q. That's the charge. Now, you also testified yesterday

that I believe there was an envelope, which was Exhibit 17.

MS. KOSTOVSKI: May I approach?

THE COURT: Yes, absolutely.

BY MS. KOSTOVSKI:

Q. I'm handing you Exhibit 17. You testified that there

was notations in there that said "for stores, for

nighttime" --

A. Yes, ma'am.

Q. -- do you remember that?

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A. Yes.

Q. Was there anything -- if you can take a look, let's

start with the "for stores" notation, and that's just a

loose note; is that right or --

A. Yes.

Q. -- was that attached to something in that envelope?

A. No. It's just a loose note.

Q. It was just in there. So you don't know if it

referenced a particular stack of bills; is that right?

A. If it was referenced -- this was actually taken off of

bills, so each bill in here is marked and they are marked

with numbers and what this is for is for our accounting

process. These are things that we did. So this was taken

off. So tell you exactly which set of notes it was, no, I

couldn't say that. If it was just these two sets, this

went to that. But it came from these bills inside this

pack.

Q. So just so the jury can see, and we only took just a

few representatives samples, correct?

A. Yes.

Q. And these are Post-Its?

A. Yes.

Q. That you put on?

A. Yes.

Q. As you were counting?

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A. Yes.

Q. Is that what these numbers reference.

So you really can't tell this jury which of these

were for stores or for nighttime; is that right?

A. No, because they are all 50. So it really doesn't

matter to me to be able to say this went with that or that

one. They're all the same denomination of bills, the same

quality.

Q. The answer to my question is, you cannot tell?

A. No, not like that, no.

Q. All right. So the follow-up, I think you already

answered, and that is, is there any difference in the ones

that were marked "for stores" or "for nighttime?"

A. Not really. I mean, just basically serial numbers are

a little different on some of them. Some of the serial

numbers are different on some of the notes.

Q. But you can't tell which ones are which?

A. No.

Q. Now, you also had a demonstrative exhibit yesterday, I

believe. It had to do with driver's licenses --

A. Yes.

Q. -- do you remember that?

A. Yes.

MS. KOSTOVSKI: Judge, I'm just going to stand

this up in front.

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THE COURT: Yes.

BY MS. KOSTOVSKI:

Q. You remember?

A. Yes.

Q. And I think, if we're correct, there is four copies?

A. Yes. I'll step down.

Q. Is that right?

A. Yes, ma'am.

Q. And I think your testimony was you believe that all

four photos or images are of the same person?

A. Yes.

Q. Okay. Did you ever investigate Angela Jackson,

Dianne Elizabeth Wilcosh, Velma Moore, Michele Andretta

Johnson?

A. Absolutely.

Q. What did you discover?

A. Well, Angela Christine Jackson, in running that name,

there is no record on computer. So by running the driver's

license and identifier slip, couldn't find anyone on

computer.

The Dianne Wilcosh, as stated earlier, came back

to a young lady out in Grand Blanc, Michigan, which is

obviously not the defendant. Velma Moore came back to a

young lady in a photo that was actually recovered of her

real Florida ID, a photo, a picture of her real Florida ID

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for a real Velma Moore was actually discovered.

Q. And Michele Andretta Johnson, did you investigate

that?

A. The Michele Andretta Johnson came back no record on

computer but I did find that there was a temporary license

so it shows me that -- and we didn't charge for the

document fraud but there was information that showed me

that they had the right amount of information to take to

the Secretary of State there and get that particular ID.

Q. Okay.

A. In and of itself, one other thing just to add to that.

Q. There is no other question.

A. I'm sorry. I thought you wanted to know about the

other.

Q. No other question.

A. All right.

Q. Thank you. Now, I think there was some testimony

yesterday where you testified that when you went to Redford

police and you were examining the Ruger .9 millimeter

weapon, you saw the Redford officers barehanded trying to

safety secure the weapon. Do you remember that?

A. Correct.

Q. Okay. Is that normal for law enforcement to use bare

hands on evidence that they just recently seized?

A. I would say in this case, it appeared to be very

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normal.

Q. In this case?

A. In this case, in my experience. Let me explain a

little bit why I say that. There appeared to be not only

constructive possession of the evidence, there was actually

physical personal possession of the evidence that was

obtained from the officers. And what I mean by that, is

this evidence was actually taken off of the defendant that

they were charging. So with that happening, the officers

felt at that point, without a doubt, this is what this

particular had, because it was taken off their possession

in their physical control.

Secondly, what is more important is the safety of

that firearm being stored. It has to be unloaded. It has

to be unchambered in order to be made safe, so I would say

yes.

Q. Let me just understand here. You're saying that law

enforcement already convicted Ms. Johnson?

A. No. I'm saying that --

Q. That is just exactly what you said, Agent Powell.

MR. GABEL: Your Honor, she is misstating the

testimony.

MS. KOSTOVSKI: No, I'm not misstating --

THE COURT: The jury will use its recollection of

what the witness said. If you want to ask a question and

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cross-examine him, that's fine, but let's try to avoid

arguing, please.

BY MS. KOSTOVSKI:

Q. So, Agent Powell, when you seize evidence in any case,

not just this case, is it your policy, or the Secret

Service policy, to bare handle it?

A. We don't carry a policy to say how we are going to

handle a particular evidence. Every piece of evidence in

every case is based on this fact. In case in point, if I

arrive at a scene and there is spent shells and a weapon on

the ground and no suspect in sight, that weapon is

obviously not only going to be secured and preserved for

prints, because we have to try to help identify that

person.

If I am physically chasing or pursuing an

individual and I actually grab on to that person and I'm

able to arrest them and place them into a secure position,

and I remove a weapon from their body, I'm going to

physically handle that weapon at that particular time, not

only for the safety but to get it away from them and I'm

going to articulate those facts in my report as such.

Q. In this case you didn't have -- or at least as far as

you knew, Redford police didn't have that type of exigent

circumstance where they needed to handle the weapon without

possibly contaminating the evidence; is that right?

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A. I'm sorry, ma'am, I can't -- I can't testify to the

state of mind of what Redford was doing at the time. But

based on the information when I arrived at the scene and

was told how it was obtained and the circumstances

surrounding it, I didn't feel that they did anything

improper, though.

Q. Well, you just testified, not five minutes ago, that

they made a determination that Ms. Johnson was in

constructive possession. I mean, you used legal

terminology here, isn't that right, sir?

A. Yes, ma'am.

Q. Now, the other issue with respect to the weapon, you

heard the testimony of Tracy McIntosh from the State

Police, right?

A. I heard most of it. I know I stepped out at one

point, but go ahead.

Q. All right. She testified based on questions from

Mr. Gabel that if other people touched the weapon before

it's submitted for latent fingerprint analysis, that might

contaminate it and not give the examiner enough information

to really lift a print. Do you remember that testimony?

A. Yes.

Q. And I think you also testified yesterday that you were

requested for a second set of prints from Ms. Johnson; is

that correct?

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A. Yes.

Q. And you testified that you presented to Ms. McIntosh

the second set of prints that were given to you by the

Wayne County Sheriff's Department?

A. Yes.

Q. All right. Did you yourself take any prints from

Ms. Johnson?

A. No. I asked for the Wayne County Sheriff's Department

to do it.

Q. Did you take Ms. Johnson into custody after you took

custody of this case?

A. No.

Q. Who took custody?

A. Redford PD took custody of her and then she was

transferred.

Q. And then she became in whose custody?

A. The case as adopted by the government. When I say the

government, it was adopted federally. So opposed to trying

her on state charges, we charged her federally. So when

the indictment in this particular case or the warrant was

issued, then she became in custody of the government and,

therefore, the U.S. Marshals take custody of her and are

responsible for her transportation to and from.

Q. Right. Now, you could have fingerprinted her

yourself; is that correct?

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A. I wouldn't have fingerprinted her because she was

already processed.

Q. But my question is you could have; is that right?

A. I could but I don't know if there was a purpose to

that -- I'm sorry, can you explain what's your question in

regards to --

Q. You don't understand my question? I think it's very

simple. You could have fingerprinted her once she came

into federal custody, you meaning the Secret Service?

A. No. And I will tell you why. Because if I

fingerprint her a second time, we use the same live scan

system that is hooked up to the State of Michigan. All it

would have printed out would have been a duplicate print.

It would show she was already in the system. Taking

another set of -- let me explain again what live scan is.

Live scan printing means that your hand is placed on a

digital computer, for lack of words, and it's an image of

the hand taken, as opposed to the old way in which we used

to roll them with ink. So that's a little bit differently.

So, that's the way she was originally printed and then when

a request was made for an additional print, I asked for it.

They told me I need an ink print. I asked for a rolled

print with ink.

Q. But you could have done that at the Secret Service,

isn't that right, sir? That's just my question.

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A. No.

Q. You couldn't do that, Secret Service is not equipped

to do fingerprints; is that your testimony?

A. We have the electronic version, the live scan

printing, and she was in the custody where she was, that

was simply to have them do it.

Q. But she was in federal custody?

A. Yes, yes.

Q. All right. Now, this morning two flash drives were

admitted, Government's Exhibit 11?

A. Yes.

Q. And we had a slide show presentation here; is that

right?

A. Yes.

Q. All right. Now, when did you discover the flash

drives, Agent Powell?

A. During the inventory of some of her property in

prepping for the trial inside of her bag within our

custody.

Q. So you took custody, or jurisdiction if you will, of

this case on May 5th?

A. Yes.

Q. All right. And you obtained a search warrant. Do you

remember what date it was?

A. It was sometime thereafter. It was during the trial

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prep. I know sometime during last year. I'm not sure the

actual date.

Q. Would October 19th of 2009 ring a bell?

A. If it's on the search warrant, absolutely.

Q. May I show you?

A. Absolutely. What I have before me is a search warrant

obtained for the flash drive dated October 19th, 2009 at

4:30 p.m.

Q. So that is the date that you actually had the flash

drives examined?

A. Yes.

Q. Why did it take five months to do that?

A. Because to do the prep trial for this particular case,

we started inventorying things that would being utilized

and used for evidence in the case. So, again, the purse

being filled with so many items as I continued to go

through, we noticed that down in the bottom there were two

flash drives for it. And based on the circumstances and

the quality of money in this case, and my past experience

and investigation of how the information in evidence is

stored on a particular electronic device, I asked for a

search warrant to review that particular flash drive to see

what was on it.

Q. In your investigative report on this case, you didn't

mention any flash drives, did you?

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A. No. At that time, the first original report --

explain our report system. Initially we make a report --

Q. Agent Powell, just, these are real simple yes and no

questions. The question is, you did not reference any

flash drives in your report?

A. On the original report on 5 of '09, there was no

reference because it wasn't discovered at that time.

Q. All right. Now, you also testified that in preparing

the information from the flash drive for the slide show

presentation, you used, I believe, what is called Write

Blocker?

A. Yes.

Q. Is that some type of software program?

A. Yes.

Q. And is it possible, sir, when you -- for someone to

manipulate the data off of any flash drive, CD, or any type

of computer disk when they are re-creating it for something

else?

A. Not using the Write Blocker. The whole purpose of the

Write Blocker is to capture that information in its present

state and not leave an electronic footprint of the entry of

it. So what happens is each time you log on to your

computer, or you stick in a flash drive or disk, even if

you're accessing the same information, the computer

recognizes access; and that electronic footprint is

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Cross of SA Powell 3/11/10

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somewhere in the hard drive of it. When you use a Write

Blocker, a Write Blocker eliminates that from happening.

It captures the information, almost like a shadow. It

shadows the information and captures it and allows you to

be able to place that information on another disk or hard

drive without disturbing the physical evidence. That's the

purpose of it.

Q. Well, my question is, is it possible to manipulate the

information when you're trying to capture or copy it by

using Write Blocker?

A. The software is designed to protect that information.

Now if you're asking about calibrations, and things, the

software is designed to stop that. Maybe by human error,

but this software is designed and we never have -- to my

knowledge there has been no such problems with the Write

Blocker, but I can't speak to the technology that was made

for that particular use.

Q. So the answer to my question is it is possible or it

is not possible?

A. In my opinion, no.

Q. Okay. Now, you also testified that the -- again, this

is not a manufacturing case but you testified that the

process of re-creating these false bills was pretty time

consuming; is that correct?

A. Correct.

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Q. All right. You also demonstrated to the jury using

the flash drives, the progression, if you will, of the

process; is that correct?

A. Yes.

Q. Now, how is it that you can say that this is pretty

time consuming when, even under your analysis, you could

just take the images and we're now using computers and you

could move that stuff around pretty quickly and create

something almost instantaneously, isn't that correct, sir?

A. What is the question? You asked a couple things.

Q. Well, my question is, you said that it appears that

this was a time-consuming process.

A. It is.

Q. That's your testimony.

A. Yes.

Q. And my question is, given all the imagery and things

that are on there, isn't it just as easy to do this pretty

quickly because there is a computer that is being used?

A. I would say no.

Q. Why is that?

A. Because what you are looking at is the finished

product of the research in order to do this particular

processing. You're looking at images that have been

captured, whether they have been researched on the internet

or whether they were scanned in from another device or

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Cross of SA Powell 3/11/10

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another media, thumb drive, placed in this particular file,

and then each one beginning to be placed and manipulated in

the creation, as I have explained, of the bill. And this

is only the actual, if you will, the book.

Now, in order to actually do the test, you would

have to have software such as Publisher, or some sort, to

actually now create that bill and then print it. That is

very time consuming.

Also, as I explained and showed earlier, the

security thread strips. Those were cut out. That is not

just cut by scissors because they are very even, they are

very precise. Each one of these notes, if you look at it,

they are very -- they are cut evenly as possible and they

are cut as precise as possible.

Again, this is all time consuming. I don't think

anyone can just sit there and just run through very

quickly. You need certain tools in order to make -- to do

that.

Q. I think you testified that this --

A. Which one?

Q. 15A? That bills with this serial number, is that what

you said?

A. Yes, ma'am.

Q. Was passed around 27 times?

A. Yes, ma'am.

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Q. But not this particular bill obviously?

A. The identifier -- that bill meaning that serial number

which we spoke about yesterday, the fingerprint -- the bill

fingerprint, if you will -- a duplication of some other

bill just like this bill was passed and later found by

rather bank or merchant, and then turned over to us.

Q. Were you able to trace where it was passed these 27

times?

A. Some of them we were.

Q. And where were they?

A. There were bills passed at AutoZone, there were bills

passed at Kroger and several other locations throughout

Detroit, Redford, Southfield and I would have to look at

the actual sheet to see the rest of them but throughout the

metro Detroit area.

Q. And do you have a time frame as to when a bill with a

serial number, or bills -- was it one or was it more than

one?

A. It's multiple. It's multiple passes so what you look

at is each time that note is passed, it's taken in, it's

given to us, so it's multiple passes.

Q. Can you give me a time frame, was it after May of 2009

through today or was it before?

A. No. It was actually before May of 2009.

Q. All of the 27?

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A. No. Before and after, which is actually kind of

conducive to show that once the bill was in circulation and

passed, it may have been continued to be passed.

Q. Do you have any information on who was passing these

bills?

A. No.

Q. Now, you have had an opportunity to examine the bills

in this case, correct?

A. Yes.

Q. The false bills?

A. Yes, ma'am.

Q. And I think you testified that these are pretty good

quality; is that correct?

A. Yes, ma'am.

Q. You also heard the testimony yesterday of Officer

Bailey -- or Officer Jones, I'm sorry, correct?

A. Again, parts, because I did excuse myself several

times.

Q. Officer Jones, I think, testified that when he first

saw these he knew immediately that they were false bills

because he said the ink was running, do you remember that?

A. I don't recall his exam but go on. I don't recall it

per se, but --

Q. Do you think, sir, that after looking at these, that

people would be deceived by these bills?

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A. Absolutely.

Q. Why is that?

A. Not only because of, again, the quality and how the

bill was made but because the bill has actually been passed

and passed again, and for it to be passed, meaning that it

was actually used, merchants have taken losses in regards

to bills like this being passed.

Q. You're saying -- let's be real careful here. You're

saying bills with a serial number have been passed. You

can't testify that any of these bills would pass?

A. Those bills are the bills that were seized in the

evidence of this case, $32,750 worth of bills. Obviously

with that large amount of counterfeit, and also looking at

data that was in our database showing that that bill has

been passed, even prior to the arrest, it's easy to infer

that obviously that bill has been made prior to when we

finally caught the person that was actually having

possession of notes that were very similar bearing these

serial numbers and these identifiers, which in this case

happen to be the defendant.

Q. Do you have the bills that were passed around 27

times?

A. The bills that were passed, the 27 time bills, each

one of those bills were turned into us. Those are stored

and logged within the Secret Service.

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Q. Do you have those bills?

A. I have the data. I can show the data that's here for

them. We wouldn't bring those bills because they are not

evidentiary evidence for this particular case.

Q. So you can't say that those bills are similar to these

bills; is that correct?

A. Absolutely. I can say that those bills, again, the

ones that were passed were the bills, $50 bills in

denominations, bearing this serial number placed into our

tracking system, which I do, if you would like to see, I

have the actual data to show you that.

Q. But you don't have the bills?

A. I don't have the physical bills in court because they

are not evidence with this case. Those are for other cases

against those merchants.

MS. KOSTOVSKI: I have no other questions.

THE COURT: Okay. Thank you very much.

Ladies and gentlemen, it's 10:30. I think this

would be a very good time for a short break. We have been

at it for 1 hour and 15 minutes. We have a legal issue and

we are approaching the end of the case and the end of the

morning, so why don't we take our morning break right now.

Okay?

As I have consistently admonished you, please

don't talk about the case among yourselves. You should

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have time if you want to go out and get a little fresh air

and relax, get a little food, drink, hopefully we can be

back here by 11:00.

Please rise for the jury.

(Jury out 10:40 a.m.)

THE COURT: Let's all be seated.

What do you want to do about the interview at the

police station, Mr. Gabel?

MR. GABEL: Your Honor, I would like to elicit

testimony from Agent Powell regarding the confession. I

don't think it's going to take very long. I'm happy to do

a brief voir dire of him and I can -- Ms. Kostovski could

cross him. My voir dire of him will be five minutes. I

don't care how long she crosses him but I think we can kind

of settle the issue of what happened and move forward from

this and make a complete record to air the issue out even

though it is untimely at this point.

THE COURT: All right. You still object to my

proposed procedure and the testimony, Ms. Kostovski?

MS. KOSTOVSKI: Well, I would like to make a

record of what happened that day.

THE COURT: All right. We will get the Agent

back on the stand.

Hold on a minute, Agent Powell. You're charging

her with possession of counterfeit money with intent to

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pass. There is $32,000. We don't have evidence on the

record that what was passed is unlikely to be accepted.

The defense theory is plain and I have a sense of what

Ms. Kostovski is going to argue. But, again, there is no

evidence for it, which doesn't prohibit her from arguing

it.

The fact of the matter is, the agent said he

seized the currency, he seized the flash drive, he

correlated what is on the flash drive with what is in the

evidence and all the elements, in my humble judgment, have

been established for the offense but you want him to

testify over an objection regarding the Fifth Amendment

that she voluntarily told him that she was going to give

this money to a drug dealer, is that my understanding?

MR. GABEL: I do, and I appreciate the Court's

discussion of the evidence and the discussion of the

strength of our case at this point. But I did mention this

in my opening statement, and I don't want to have something

that I told them they would see during the course of trial

not presented to them. In addition, I think Ms. Kostovski

is going to argue that this couldn't have fooled someone

and I think she's already given us preview of the evidence

she thinks she has on that, particularly Officer Jones

saying, no way, I would have noticed right away, I wouldn't

have been fooled. I see that coming out in her closing,

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it's pretty obvious she's going that way. So I would like

to get the evidence in she admitted she was passing --

THE COURT: Come on up, Agent Powell. You are

still under oath.

Mr. Gabel, you can handle the witness. But let

me just advise you, Agent Powell, since you haven't been

privy to our discussions at the bench, that we are going to

want to hear about the circumstances of the initial

interview on the second floor of the Redford police

station, followed by the call you got from the woman

officer. What's her name, Mr. Gabel?

MR. GABEL: Officer, I never pronounce it

correctly, Considine.

THE COURT: Considine, and your subsequent second

encounter with Ms. Johnson and then how that ended. Okay?

THE WITNESS: Yes, sir.

THE COURT: Let's take five or ten minutes and

then Ms. Kostovski will have a chance.

Go ahead, Mr. Gabel.

VOIR DIRE EXAMINATION

(Outside presence of jury)

BY MR. GABEL:

Q. Just briefly, could you describe when you first

encountered the defendant at the Redford Township Police

Department?

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A. I arrived -- upon arriving at the Redford Police

Department, I went up to the detective bureau, where I met

Detective Schiller, who was going to be the officer in

charge of the case for Redford PD.

Officer -- Detective Schiller instructed me that

the person that had been arrested was downstairs in lockup.

They brought him up to a room, interview room, on the

second floor, at which point the defendant came into the

room. She was advised of her rights, asked to speak to

her --

Q. Did you advise her of her rights using a Miranda form?

A. I did.

Q. Did she not sign that Miranda form?

A. She did not.

Q. After advising her of her Miranda, what was her

reaction?

A. She didn't want to talk, and that was it and we

stopped.

Q. At that point did she stay on the second floor? Where

did she go?

A. She was taken back down by one of the officers, if I'm

not mistaken. It was Officer Bailey who was there in the

interview room with me. She was taken back down to the

lockup area. I stayed upstairs with Detective Schiller.

Q. What happened next?

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A. As I'm there with Detective Schiller, he receives a

call and says, hey, the defendant wants to talk now.

Q. Who did he receive the call from?

A. He indicated to me it was someone from down in lockup.

When we got downstairs to the lockup area, we were met by

Officer Considine, and she told us that a female, that's

all she described her, female wanted to talk to you guys.

She then led us over to her cell. She opened the cell at

that point.

Q. You went to the cell to speak with her?

A. We breached the door, yes.

Q. How long a lapse between the time she invoked her

rights under Miranda and said she didn't want to speak and

the time that Detective Schiller received the call that you

guys were wanted back downstairs?

A. Speculating now, maybe, 10, 15 minutes maybe.

Q. Okay. So you go back down to her cell. Could you

describe as best as you can recall what you said to her,

what she said to you?

A. I asked her what did she want, blunt like that, what

do you want? She began to say, that, hey, that's not mine.

That belongs to somebody named "D." I'm just, you know,

picking it up for people. I give to guys. They go out,

move it. When I used the word move it, they pass the bill,

whatever. Give it back. She collects the real money and

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she's supposed to meet this person named "D."

MR. GABEL: I have no further questions.

THE COURT: Well, no, what happened after that,

she said --

BY MR. GABEL:

Q. What happened -- I'm sorry, what happened after that?

Was that the end of the discussion with her? What was it?

A. No. Then I said, well, who's "D," what's "D?" And

she couldn't describe or say anything, and that's it.

I said, okay, you need to get an attorney, get

someone and we can make -- if there is some kind of deal,

or something that can be attained from it, we will go from

there. Because what she had said to me really didn't seem

to make any sense to me at that --

Q. So were you hoping if an attorney could get involved,

there could be some possible discussions about cooperating

and she could provide more details about "D"?

A. Yes.

Q. At that point, questions cut off and you went back

upstairs?

A. Yes.

MR. GABEL: Okay. No further questions from the

government, unless the Judge has any other questions.

THE COURT: All right. Go ahead, Ms. Kostovski.

VOIR DIRE EXAMINATION

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(Outside presence of jury)

BY MS. KOSTOVSKI:

Q. Thank you. Agent Powell, you said that you went to

the Redford Township Police Department, you met with

Detective -- or Officer Bailey and Detective Schiller; is

that correct?

A. Yes.

Q. And why did you go to speak to Ms. Johnson initially

the first time?

A. To try to find out what -- would she want to give a

statement in regards to the counterfeit.

Q. Okay. So you initiated the first conversation?

A. Absolutely, yes.

Q. All right. And you said you gave her Miranda warnings

off of a card or a sheet?

A. Right, yes, ma'am.

Q. And she refused to sign that?

A. Yes, ma'am.

Q. Did she also invoke her right to counsel at that

point?

A. She asked for an attorney.

Q. And you stopped -- you didn't say anything else to

her --

A. No.

Q. -- after that, correct?

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A. No, not with regards to that.

Q. She was then taken back downstairs?

A. Yes.

Q. To a cell area?

A. Yes.

Q. All right. Then you were still upstairs?

A. Yes.

Q. And then you were leaving?

A. I was still upstairs gathering the evidence to --

putting all together to take back to our office.

Q. And you said, maybe 10, 15 minutes passed --

A. To the best of my knowledge, yes.

Q. Could it have been shorter?

A. I'm going to stay with the 10 to 15 because I don't

like to speculate. That's the best of my --

Q. All right. When you received word that she now wanted

to speak to you, where were you at that point? Were you

still on the second floor?

A. In Detective Schiller's office, yes.

Q. All right. So you had not started to leave; is that

correct?

A. You mean, physically leaving the building?

Q. Right.

A. Gathering the rest of the evidence, that's it. I

mean, in the immediate soon to be leaving, but no, I wasn't

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out the door and someone came and grabbed me, no.

Q. Okay. So then you went back with Detective Schiller

to her cell area; is that correct?

A. Yes.

Q. They didn't bring her back upstairs, you physically

went downstairs?

A. Physically walked downstairs, yes.

Q. And was she inside the cell?

A. Yes.

Q. Okay. And you and Detective Schiller were outside the

cell?

A. Right in the breach of the doorway.

Q. Was the cell door open or closed?

A. Officer Considine opened door.

Q. Where was Ms. Johnson? Was she sitting or near

the -- near you?

A. She was on a bench, the cellblock bench cot. She was

kind of laying there a little bit and she kind of sit up.

Q. Did you ask a question of her? Did you say to her, I

understand now you want to talk to me? Or how did this

start?

A. I walked in and said, what did you want? What do you

want? Because she didn't want to talk and she's pretty

adamant about it upstairs. So I didn't think that she

really was going to talk about anything down there.

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Q. But you went back down there and then you asked her

what do you want?

A. Yes.

Q. Did you give her any new Miranda warnings?

A. No.

Q. Why not?

A. She reinitiated. I didn't think I needed to readvise her of her rights.

Q. All right. And what did she say to you?

A. Essentially what I just stated, that the money wasn't

hers. She was moving -- she had it. It belonged to some

guy named "D." She gave it to -- her job was to sort of

give it to individuals that would pass it, exchange the

counterfeit for genuine. She would collect the genuine and

ultimately give it back to "D."

Q. All right. So her statement, was that like a

narrative or was it a question and answer?

A. That was more of a narrative.

Q. So she just blurted this information out to you, is

that your testimony?

A. Yes, that's -- yes.

Q. And you said, you need to get an attorney and you

stopped the conversation?

A. No. As I said previously, I said, who's "D," where is

this "D," I mean, what's "D?" And she just said, it's some

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guy from the street. Didn't give a name, full name, didn't

know where they lived or no way of contacting them.

So at that point I didn't hear anything of what

she said that would have given us any investigative leads

per se to work on. So, like I told her, to me it was just

a farce. I just said, get an attorney. If you come up

with something, we'll talk about it later.

Q. So you didn't believe her statement?

A. No.

MS. KOSTOVSKI: No other questions.

THE COURT: All right. Thank you.

Is it true that when Officer Bailey took the

defendant back downstairs and Officer Considine called you

between that period of time, you didn't see or talk to the

defendant?

THE WITNESS: Yes, sir. No, I didn't talk to

them.

THE COURT: Is it true as well that you have no

information from Officer Considine, Officer Bailey, or any

other officer or individual at Redford that you don't have

any information about what happened while they had custody

of her and you remained upstairs?

THE WITNESS: No.

THE COURT: And they didn't tell you that they

said anything to her or she said anything to them?

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THE WITNESS: No.

THE COURT: You just got the call and headed down

and then the evidence is what you testified it was?

THE WITNESS: Yes. Detective Schiller got the

call and he told me and we went down.

THE COURT: Very good.

Anything else, Mr. Gabel?

MR. GABEL: No, Your Honor.

THE COURT: Okay. You may step down and thank

you very much, Agent Powell.

THE WITNESS: Thank you.

Maryland versus Shatzer, 2010 Westlaw 624042, was

decided February 24, 2010. Edwards creates a

presumption -- excuse me, Maryland versus Shatzer says that

Edwards versus Arizona, which I cited on the record

yesterday, creates a presumption that once a suspect

invokes his Miranda right to counsel, any waiver of that

right in response to police attempts to custodial

interrogation are involuntary. The rule set forth by

Maryland versus Shatzer in light of Edwards sets forth two

distinct inquiries and relies on Edwards Construction by

Smith versus Illinois, 469 U.S. 91, a 1984 case in saying

that, number one, the Court must determine whether the

accused actually invoked his right to counsel. Secondly,

and I will quote here, "If the accused invoked his right to

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counsel, courts may admit his responses to further

questioning only if on finding that he, A, initiated

further discussions with the police; and B, knowingly and

intelligently waived the right he had invoked, closed

quote. That's Smith versus Illinois at page 95 of the

opinion, or of the U.S. Report citing Edwards 451, U.S. at

485, page 486, note 9. "Discussions that come at the

behest of the police after the right to counsel has been

invoked are presumed coercive." Van Hook versus Anderson,

488 F3d 411, 417, Sixth Circuit, 2007, which also cites

Edwards, the Edwards opinion of the Supreme Court.

Maryland versus Shatzer is the latest Supreme Court opinion

on this issue. "To establish a valid waiver to the right

to an attorney, the government must show that the waiver

was knowing and intelligent and voluntary."

In an Edwards situation, says the Supreme Court,

"There is an additional second layer of prophylaxis

regarding requiring that a valid waiver of the right to

have counsel present during custodial interrogation, once

invoked may only be waived when further questioning is

initiated by the defendant."

Applying this authority, I am not going to admit

the statement of Ms. Johnson. She may have very well and,

in fact, I think Agent Powell's testimony is that she

initiated the subsequent discussion. There is no evidence

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on the record that she waived her right to counsel

knowingly and intelligently and voluntarily. We don't know

what happened with Considine and Bailey. "Initiation means

that the accused has demonstrated a desire to discuss the

subject matter of the criminal investigation." Oregon

versus Bradshaw, 462 U.S. 1039, that's a plurality opinion

and not the opinion of any particular justice.

While the facts here suggest strongly and, in

fact, I can say beyond a shadow of a doubt that Ms. Johnson

initiated a discussion, I would conclude that the

government has established the first part of the test but

whether the waiver is knowing, intelligent and voluntary is

a question to be determined from the totality of the

circumstances and that is, of course, set forth by North

Carolina versus Butler, 441 U.S. 369.

While the fact that the defendant initiated the

discussion is relevant, obviously that's a determination

that the Court in Oregon versus Bradford 462, 1039, 1046,

another plurality opinion established in 1983, the burden

is on the government to establish by a preponderance of the

evidence that the waiver was knowing, intelligent and

voluntary here and I do not find a preponderance of that

evidence.

Now, Mr. Gabel, take a deep breath because I know

the ruling of the Court is not the ruling that you sought

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but I think I'm on solid ground here. You undoubtedly are

going to tell me that if you were to get Considine and

Bailey in here to establish facts, I would be proven to be

wrong, and you may or may not -- in fact, you probably are

right about that. The fact of the matter is we are on the

third day of the trial and, Ms. Kostovski, I have to take

you to task here. I do not think that the defense has

comported itself in an appropriate manner. I do not think

this issue is raised in a timely or proper fashion. I

think that if you wanted to object to this, the government

should have had the opportunity to brief it, to address the

Court and to bring in those two officers. But because of

my decision on the way I want to run this courtroom and

this trial, they are not going to be able to.

I am only doing this because I think that the

evidence, while relevant and potentially admissible, is

cumulative and not likely to further result in any truthful

fact finding by the jury. And that's the ruling of the

Court. If you want to speak to it, Mr. Gabel, go ahead.

MR. GABEL: That's the ruling, then we will go

forward with that ruling in place.

THE COURT: All right. Ms. Kostovski?

MS. KOSTOVSKI: Thank you, Judge. And I

understand the Court's comments with respect to the

timeliness of my raising the issue but I will say this,

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Judge. I was surprised today at the agent's testimony

about this latest revelation about a $50 bill being passed

around 27 times with the same serial numbers. That is

truly news to me today.

THE COURT: Okay.

MS. KOSTOVSKI: This was not presented before and

never brought up.

THE COURT: Okay. Well.

MS. KOSTOVSKI: If we are going to talk about

surprises in the case --

THE COURT: Okay.

MS. KOSTOVSKI: -- and production of evidence.

THE COURT: All right. I think we have been more

than fair here. Okay. I think -- I think a lot of judges

would have let in what I just excluded but that may be up

for people in Cincinnati to review, not me. With that,

let's take a ten-minute break and then we will --

MR. GABEL: Your Honor, we are done with our

witnesses so we will be resting when the jury comes back

in. There will be no redirect.

THE COURT: I know but we may need to talk about

Rule 29 and any other issue, so let's do that in ten

minutes. Okay?

MS. GREER: All rise.

(Recess taken from 11:01 a.m. to 11:15 a.m.)

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MS. GREER: All rise. You may all be seated.

Is everybody ready to go? So we are finished

with the agent's testimony, Mr. Gabel?

MR. GABEL: We are and the government has no

additional witnesses.

THE COURT: What's you pleasure here,

Ms. Kostovski? Are you going to present a case or --

MS. KOSTOVSKI: I am not, Your Honor, but I do

want the record to reflect -- Ms. Johnson, if you could

stand, please -- that I have advised Ms. Johnson of her

right to testify, is that correct?

THE DEFENDANT: Yes.

MS. KOSTOVSKI: And she has indicated to me that

she is declining her right to testify; is that correct?

THE DEFENDANT: Okay.

MS. KOSTOVSKI: Yes?

THE DEFENDANT: Yes.

THE COURT: Okay. Good. The record --

MS. KOSTOVSKI: So I have no witnesses, Judge.

THE COURT: The record is clear that the

government has called its last witness and will rest when

the jury returns to the courtroom. The defense attorney

has elicited from her client that she has the right to

testify in this case and Ms. Johnson has indicated that she

understands and declines her right to testify, and with

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that, Ms. Kostovski, I take it you're going to offer no

witnesses, no defense testimony, and your client is going

to assert her right to remain silent in this case, correct?

MS. KOSTOVSKI: Correct.

THE COURT: Very good. Thank you for that.

Do you want to make a Rule 29 motion, or anything

else at this at this time.

MS. KOSTOVSKI: I was contemplating doing that,

Judge, but I -- and this is -- I mean no disrespect to

your, Your Honor. I think you've indicated that the

government has put on proofs to satisfy the elements and

that this is really going to go to the jury.

THE COURT: Yeah.

MS. KOSTOVSKI: To me it would be an exercise in

futility at this point to make that argument, unless -- I

mean, I'm sort of caught between a rock and a hard place.

THE COURT: Okay.

MS. KOSTOVSKI: Let me just say this.

THE COURT: Go ahead.

MS. KOSTOVSKI: I will make a motion for a Rule

29.

THE COURT: Good. I could be missing something.

I do not take any sign of disrespect. If you disagree with

my view of the evidence, maybe there is an argument that

I'm not aware of. You make your motion and I'm open minded

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right now and I'll rule on it. Go right ahead.

MS. KOSTOVSKI: Well, as the Court knows, the

indictment charges two offenses here, possession of

counterfeit money and possession of a firearm with

obliterated serial number.

Now, the counterfeit is an interesting

definition. I mean, the term has been used loosely around

here during the last three days but there is a specific

definition and we have incorporated that as part of the

jury instructions from United States versus Weddington and,

basically, the government has to show that the false bill

passed is counterfeit. The defendant intended to use the

false bill to defraud, and the defendant actually possessed

the false bill.

I don't believe that the government has met its

burden on really all of the elements on Count One and I

don't believe -- certainly, there was no testimony from any

witness that Ms. Johnson had any actual possession of any

of these bills, number one.

Basically, the government is going to ask the

jury to infer that she was in constructive possession

because they were in a purse that they maintain is hers,

the laundry bag in the trunk of the car but I think they

really fall short even on that because there was testimony

that she had just bought the vehicle. There was another

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passenger in the car and most of his testimony, I think,

was self-serving here.

Furthermore -- and I think this has to go really

to the quality of the counterfeit here and the government

has to show that she intended to defraud and the analysis

there is to take a look at what the Weddington Court says,

the similitude of the money, how similar in quality and

likeness and imagery is it to genuine currency.

There has been testimony here that people would

not be fooled. Then there has been testimony that people

would be fooled. And, again, Judge, with respect to the

second charge, the possession of the firearm with the

obliterated serial number, there is four elements there.

Our dispute is that we don't believe the government has

presented sufficient evidence on elements one and three,

knowing possession. Again, no testimony that anyone ever

saw her with any weapons, anyone ever saw her with this

particular weapon. No fingerprint match came back to her

that was on the gun.

Secondly, I think with respect to element three,

I don't see how they have put on any proof that she had

knowledge that the serial number had been altered or

removed. They presented no testimony of any kind from

anybody, including the agents, that she had any

knowledge -- in fact, the testimony was they don't know who

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altered or obliterated the serial number.

THE COURT: All right. Is that your argument?

MS. KOSTOVSKI: That's my argument.

THE COURT: Thank you.

Do you want to respond, Mr. Gabel?

MR. GABEL: I don't have much of a response.

Counterfeit money, clearly counterfeit, but it clearly is

good enough that it could deceive an individual. If the

Court wants to see any of it, I'm happy to pass it up.

With respect to the firearm, the theory is

constructive possession for the firearm that was in her

trunk. The fact that she fled, the fact she used fake

aliases, the fact that she had other firearms in her

possession all goes toward her knowledge of what was in her

trunk. It was next to the counterfeit money that matched

the counterfeit money in her purse. So all of that should

be left to the jury to decide if she did constructively

possess that firearm.

We don't have to prove how it was drilled out,

who drilled it out, that is not an element, even though

defense counsel has raised that in her argument. Again,

basically looking at the gun, you can see the indents in

it. She was a street-savvy individual. She had other guns

in her possession. She was a careful and meticulous

individual with respect to her counterfeiting and her fake

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IDs and the idea that she didn't know that there was an

obliteration on the serial number just simply isn't

credible, at the very least it's something that the jury

should pass on.

That's it for the government, Your Honor.

THE COURT: Thank you. I want to say that my

comments earlier with regard to the evidence, I stand by

those, I am -- what I was speaking to in particular was the

fact that I thought the evidence on Count Two was

overwhelming but I certainly have an open mind and I

certainly realize and would not be surprised if the jury

were to return a not guilty verdict here, especially after

the vigorous defense put forth by Ms. Kostovski.

On the other hand, I'm going to deny the motion

for the following reasons: On Count One, I think that

possession, constructive and even actual, as well as

knowledge, have been demonstrated circumstantially, maybe

not absolutely but certainly in a fashion that would get

the case to the jury.

The intent issue has been established in my mind

by the volume of the money, the fact that some of it has

made it into the stream of commerce and the fact that the

agent's testimony as a person with knowledge

under -- really under 702 would present the money as

counterfeit currency that would be intended to cheat

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someone or be real.

Now, I realize there's an argument for that

point, but the issue of similitude that Ms. Kostovski

raises has been determined by the Sixth Circuit to be one

for the jury, so I think we go forward to that. With

regard to elements one and three of Count Two. I think

Mr. Gabel's analysis is correct and I won't repeat it here.

But in my mind, there is and always has been a large amount

of evidence to prove both -- excuse me, to prove

sufficiently for the jury to deliberate on the matter, that

the defendant knowingly possessed the firearm and that she

would have knowledge, circumstantially, of the alteration

of the serial number. So I will deny the motion without

prejudice to renewing it if there is a conviction here.

Anything else from either side?

MR. GABEL: Nothing else from the government,

Your Honor.

MS. KOSTOVSKI: Nothing from the defense.

MR. GABEL: One thing I would just like to raise.

I'm planning on passing some of the counterfeit out to the

jury during my closing. I don't know if there is an

objection, if there's any problem with that. But I just

wanted to make sure I'm not drawing an objection during my

closing.

MS. KOSTOVSKI: No objection.

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THE COURT: All right. Good.

MR. GABEL: Thank you.

THE COURT: I should have told you, but, you

know, if you want to object to anything in the closing

argument, if it's substantive, we can address that at the

sidebar, but my vast preference is for legal objections,

you preserve those after the argument and when the jury is

gone so that both counsel can get through their arguments

in as smooth a fashion as possible. Okay?

We have the jury instructions. We have the 14

jurors' names in the hat. Correct, Alissa?

MR. GABEL: Your Honor, will I get a rebuttal?

THE COURT: On closing argument?

MR. GABEL: Yes.

THE COURT: Reserved, yeah. How much time do you

want, I mean, 20 minutes?

MR. GABEL: Probably 30 minutes.

THE COURT: 30 minutes per side, you are allowed

30 minutes per side.

How much do you want for rebuttal? Five, ten.

MR. GABEL: Five minutes.

THE COURT: Good. We will go 25 and 5 and

Ms. Kostovski has 30.

Okay. That will get them to lunch by 12:30,

12:45.

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Anything else from either side?

MS. KOSTOVSKI: Nothing from the defense.

THE COURT: You have your jury instructions. We

are going to rest, close the proofs, draw the names, and

closing argument and instruct the jury. Okay. That's

where we going. Ready? Bring them on in, Alissa.

(Jury in at 11:33 a.m.)

THE COURT: You may all be seated.

Mr. Gabel, Mr. Powell has stepped down. We have

had a long break and we had some legal discussion with

counsel. I think we're right on track.

What is next for you?

MR. GABEL: Special Agent Powell was the

government's final witness. The United States rests its

case.

THE COURT: Thank you very much.

Ladies and gentlemen, Mr. Gabel indicates that

the government has rested its case, which means that they

are finished with their case in chief and they have no more

witnesses or evidence at this time, okay, which means it's

time for me to turn to Ms. Kostovski.

What is your pleasure at this point,

Ms. Kostovski?

MS. KOSTOVSKI: Your Honor, the defense also

rests. We do not intend to call any witnesses.

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THE COURT: Okay. The fact is now, ladies and

gentlemen, that the defense has rested its case as well,

which indicates that they intend to place their defense and

rely upon the cross-examination of -- by Ms. Kostovski of

the government's witnesses and they have no witnesses to

present of their own, and I will instruct you further at

the end of the case on that. So that means, obviously,

there is no rebuttal case and the proofs are over with now.

Okay. So we have arrived at the part of the trial where

the evidence is in. Counsel have an opportunity to argue

their case to you, and then I will instruct you and you

will deliberate today.

Before we do anything, it's time to dismiss our

alternates. Okay. Alissa -- we have put all your names in

a hat -- you want to mix that up. This is Alissa's party

hat.

MS. GREER: This is not my party hat.

THE COURT: You have become very fond of Alissa.

Let me mix these up a little bit. We will draw two names.

Mr. Joslin, you are going to be one of our

alternates and Mr. Bruttell, you are going to be one of our

alternates as well. We selected your names randomly and if

counsel want to look at those, you are entitled to.

Let me tell our alternates, I'm going to dismiss

you before closing arguments so you can get on with your

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day. Don't talk about the case at all until we notify you

that there is a verdict, which we will do.

If, per chance, one of your fellows juror is hurt

or incapacitated and can't come back during deliberations,

we will call you back here but the fact of the matter is,

we go to deliberation with 12. Right now there is 14. So

you two fellows are going to be dismissed with our thanks

and if, in fact, there is a need, if we go down to 11 or 10

and we need to go back up to 12, we are going to call you

back. So please just continue not to discuss the case

among yourselves, or anybody else, until we notify you that

there is a verdict. But at this time, I will respectfully

and gratefully dismiss you from service and tell you that

your participation and attention has been notable and we

are very grateful to you. Okay.

So with that, Ms. Greer, if you want to escort

Mr. Joslin and Mr. Bruttell out, that would be great.

Thank you both very much.

Ladies, come on down. Ms. Palmeri and Ms.

Stieber and Ms. Fallon, we are going to bring you down

toward the Court. And then we're going to take Mr. Clayton

and Ms. Thomas and put you up in the back row. Okay. No,

we are just going to put -- how many? Just Ms. Thomas, you

stay in the back row now. And Mr. Clayton, you stay where

you are at. So we have six and six. Right? You may all

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be seated.

With that, we are ready to go to closing

argument. Correct?

MR. GABEL: That's correct.

THE COURT: Let me say one thing I forgot to do,

but we have been over this and I don't think it's a

surprise to anybody. Government's Exhibit 1, 2, 3, 4, 5,

6, 7, 8, 9, 10, 9A and 10, 11, 12, 13, 14, 15, 15A, 15B,

16, 16A, 17, 17A, 18, 18A, 20, 21, 22, and 23, which are

the postal bag are all in evidence. Correct?

MR. GABEL: That is consistent with our records,

yes.

THE COURT: And Defendant's Exhibit A, which is a

photocopy of the ticket is in as well. Correct?

MS. KOSTOVSKI: Correct.

THE COURT: And that makes up the record of the

case.

MS. KOSTOVSKI: Yes.

THE COURT: I just wanted to make sure we all

were on the same page before you go to the jury. All

right. With that, we are ready to hear Mr. Gabel's

closing, argument.

Go ahead, sir.

MR. GABEL: Thank you, Judge.

CLOSING ARGUMENT

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Closing Argument/Mr. Gabel 3/11/10

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MR. GABEL: May it please the Court, counsel,

Members of the Jury, I imagine that when we were all little

we learned an important lesson. It's a lesson that I teach

my daughter, my little two and a half year old, it's the

lesson that you shouldn't tell a lie. Because when someone

tells that first lie, they have to tell another lie to

cover that lie up and another lie and another. That's what

we have in this case. The defendant gave police bogus

names, she used fake IDs and when that wasn't going to work

for her, she fled from police. She did that because she

knew what was in her purse. She knew what was in her

trunk. She did not want law enforcement to discover the

evidence of her crimes. The tens of thousands of dollars

worth of counterfeit U.S. currency, the guns, including the

gun that had its serial number drilled out.

Now, I expect defendant to ask you at closing

argument to believe a couple of different things. One,

that this money just isn't good enough to dupe anyone and

another, she didn't possess that gun in the trunk. She

didn't know it had the serial number scratched out. I'm

going to review the evidence with you to see what is more

believable, what makes the most sense, because your guide

in this case should be your common sense. When you go back

to the jury room, you do not expect your common sense at

door. In fact, listen carefully to the instructions on the

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law that the Judge will give you. He is the master of the

law in this case. You are the master of the facts. You

determine what actually happened. He tells you the legal

framework to analyze the facts and he will tell you, and

this is directly from the jury instructions that I expect

him to read to you, that you should use your common sense

in weighing the evidence.

But to use your common sense and properly

evaluate the facts, the facts in this case, it's helpful to

have a framework and I'm going to use the two counts that

the defendant is charged with, possession of counterfeit

U.S. currency and possession of a firearm with an

obliterated serial number. Each of those crimes have

various elements that the government has to prove to you

for you to convict the defendant.

I'm going to start momentarily with the first

count, possession of counterfeit money. And I'm going to

go element by element to show how we have proved each

element of this first count. The first element, and the

Judge will instruct you on this, is that the defendant

possessed counterfeit money. How do we know she possessed

counterfeit money? You heard from Secret Service Agent

George Powell. He told you how he searched the purse that

the defendant had and he found counterfeit money in that

purse, over $5,000 worth. Some of it was in a billfold,

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some of it was in an envelope. She had actual possession

of that counterfeit money. That was the purse that was

sitting at her feet when the officer first pulled her over,

sitting between the driver side door and her feet. It was

the purse that she was clutching when she was pulled out of

the car. It's also the purse that the mechanic, James

Rhodes, said he saw her carrying. She had a purse around

her shoulder when he went to go fix her car for her. She

had actual possession of that counterfeit money.

You also heard from Officer Brian Jones. He is

the one who came in here on crutches, hobbled in and told

you how he had searched the trunk of the defendant's car.

Is was the defendant's car, we know that. She had the

keys. She was driving the car. If there is any doubt

about that, we brought in Willie Reeves, the individual who

sold the car to her. He sold it to her before she was

driving it around. Never met her until she came to buy the

car. And he said, before selling that car to her, like

anybody would do if they were selling a car, he cleared it

out, cleared out all of his personal items, made it look

nice so he could offer it for sale. He sold it to her for

$800. Now, in selling a car for $800 you are not going to

leave behind $13,750 worth of real currency when you're

selling the car for $800. You are not going to leave

bundles of counterfeit currency, nearly $40,000 worth. You

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are not going to leave guns. And he told you he didn't do

that. He cleaned the car out

The contents of that car were placed there by the

defendant. They were the defendant's items. Again, the

Judge will instruct you, you can have actual possession of

something, like the purse that you are found clutching,

found in your possession. You can also have constructive

possession, and listen carefully to the Judge's

instructions on that. He will tell you that defendant has

constructive possession of something if she has the right

to exercise physical control over the item, she knew that

she had the right to exercise physical control over the

item and she intended to exercise physical control over

that item at some time.

For instance, car keys, I have my car keys to my

car. I'm planning on going to my car this evening,

unlocking it and getting inside, driving home and I will

have access to all the contents in my car. I, right now,

standing before you, have constructive possession of the

contents in my car. I don't even have to be in my car. I

know I have the right to get into my car and access the

contents so I have constructive possession. Put those back

so I don't lose my keys with the evidence.

The same is true for the defendant. She is

driving the car she owned, the car that she had control

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over. She was found inside the car with the counterfeit

money. The evidence has shown that she had constructive

possession of the contents of that trunk. And if there is

any question about whether she ever had access to the trunk

or knew what was in the trunk, that's answered for you when

you look at the bills. We see a bill at the top. It's

Exhibit 15A that was admitted into evidence, and you see

the serial number, AB28539702E. We looked at Exhibit 17A,

the one that was found in her purse, the exact same serial

number, AB28539702E. They came from the same batch of

counterfeit money. For her to claim or hope that you

believe that she had this money in her purse but she had no

idea what was in the trunk, that simply doesn't make sense.

Again, use your common sense.

Moving beyond just the possession of the

counterfeit money, we have to prove to you the second

element and that is the defendant knew at the time the

money was counterfeit and this is an important element. We

don't want to convict people of federal crimes if they are

walking with around with money in their possession that

they don't know is counterfeit. If you get change back

from the store and a counterfeit 20 or 50 is included in

that, you are not going to be guilty of a federal crime but

it's obviously not what happened in this case.

The defendant could not have been under the

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impression that this money, all this money, was real money.

There was nearly $40,000 of it in a duffel bag in her

trunk. That's not how you would treat real money. And if

there is any question on whether she would have known this

was counterfeit, you have seen this exhibit. It's a

one-sided counterfeit bill in the process of being created.

The security strip has been pasted to the back side. It's

clear she knew that this wasn't genuine currency.

Recall the flash drives that were found at the

bottom of her purse. Agent Powell showed you what was

found on those flash drive. There were bills in the

process of being made and manipulated. There were some

examples of the security features, including the security

strip that could be used to place on counterfeit money.

It's clear she knew this was counterfeit, all the evidence

points in that direction. There really can be no doubt

about that.

The third element that we must prove to you is

that the defendant possessed counterfeit money with the

intent to defraud, which essentially means she intended to

cheat someone by making the person think it was real money.

Now, it's not necessary for us to prove that she

actually did pass this money and actually did cheat anyone.

By having it in her possession and intending to pass it and

intending to fool someone, we prove the third element.

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This feeds into the definition of counterfeit money. For

counterfeit money to actually qualify as counterfeit money,

and not just, like, Monopoly money, money that is obviously

not attempting to be counterfeit money, it has to be

similar enough to real currency that it would be calculated

to deceive an honest person who is unsuspecting when they

are dealing with someone that they believe to be upright

and honest, and this element -- this element, I think the

proof is in the counterfeit money. I'm going to pass some

out to you here.

The question is, is this similar enough to U.S.

currency that it was intended to deceive someone? I know

we have talked about counterfeit currency quite a bit but

you haven't had a chance to get your hands on it.

It doesn't have to be an exact copy. It's hard -- the U.S.

Treasury takes their -- they take extra security

precautions to make sure you can't make it identical.

That's so Secret Service can determine what are real bills

and what are fake bills. But it has got to be close

enough.

Take a look at the bills, hold them up to the

light. You will see re-creations of some of the security

strips. If you hold them up to the light, you can see it

in there. If you take a look at the bill, sometimes you

can see it on the front side, other times you can see it on

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the back side. You can see the faint printing when you

hold it to up the light of a watermark. The counterfeit

currency clearly meets -- this currency that you have in

your hand clearly meets the definition of counterfeit

currency and it clearly was designed to fool people.

Agent Powell testified this took some time, this

took sophistication. It's not someone placing it down on a

color copier and printing it out. It's cut out to the

exact dimensions of real money. The same color of ink is

used. The paper that is used. It's not simple white

office paper, it's a resume paper that's there to mimic the

feel of real money. The fiber content of that paper is

used to deceive -- Agent Powell told you that's used

because when you use those pens in stores that we see

cashiers use, sometimes resume paper, like this paper, can

fool those pens. Again, if there is any question on

whether or not this is good enough counterfeit money to

fool someone, you heard Agent Powell's testimony this

morning, he told you that the Secret Service has

investigated cases in which counterfeit bills did fool

cashiers, did fool business owners and the serial numbers

on those bills that fooled those people are the same serial

numbers on the bills found in the defendant's trunk and her

purse.

From the mom and pop businesses to gas stations,

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fast-food chains, these are the people who are handed

worthless pieces of paper for their honest day's work for

the goods and services they have provided. We even

saw -- you didn't see these because I didn't pass them

around but they are part of the evidence. They are part of

Government's Exhibit 17. The envelope that had counterfeit

money in her purse. If you can make that out it says "for

nighttime." There was another note, "for stores." It's

clear what this money was intended for. It was intended to

be passed to dupe stores, storeowners, cashiers, some who

work at nighttime. So you might be a little less observant

if you are passing this money under the cover of darkness.

Recall when the defendant was pulled over and her

purse was searched, officers found $13,750 worth of genuine

U.S. currency. So her scheme appeared to be successful.

That money, where do you think it came from? She was

passing this money and getting genuine U.S. currency in

return.

I would like to move on to Count Two now. That

involves the gun that was found in her trunk. Count Two is

possession of a firearm with an obliterated serial number,

and I will go element by element for this offense. The

first element is that the defendant knowingly possessed the

firearm described in the indictment. And, you know, one of

the difficulties as a prosecutor, as we have elements where

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we have to prove what the defendant knew and you can't ever

get into a defendant's head and tell you exactly what was

going on in their head. We have to prove that with

circumstantial evidence with the entire facts of the case.

And the Judge will instruct you and I ask you to pay close

attention to this instruction as well. He will instruct

you on how you can determine what is in a person's mental

state, some of the factors and evidence that you can

consider. He will tell you, and I quote from the jury

instructions you will hear, a defendant's state of mind can

be proved -- can be proved indirectly from the surrounding

circumstances. This includes things like what the

defendant said, what the defendant did, how the defendant

acted and any other facts or circumstances in evidence that

show what was in the defendant's mind.

Now, we already talked about constructive

possession and the fact that I have the keys to my car, I

have control of its contents and whatever is in its trunk.

She had constructive possession of what was in her trunk,

including that gun. But think about what she did, what we

know about the defendant when you're determining whether

she knew what was in the trunk and knew about that gun.

She used multiple aliases. She had numerous fake IDs,

including one she passed to the officer who pulled her

over. And when that wasn't working, she fled from them.

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Why? Because she knew. She knew what was in her trunk.

And think about it, did she have a motive to have these

guns on her, including that gun in the trunk? She is

involved in criminal activity. She is in the

counterfeiting game. She is dealing with unsavory

characters, people you can't really trust, that gun was her

insurance policy. All the guns were her insurance policy.

They were there to protect herself. They were there to

protect the bundles of counterfeit money that she had.

They were there to protect the real currency that they got

in exchange for the counterfeit currency. There were guns

in her purse that she had near her in case she is passing

that counterfeit money to individuals out on the street

from the passenger compartment. But if she had to go into

that trunk and hand people bundles of money so they could

go out and pass it, she needed protection in that instance.

That's why she had the gun in the trunk, and the gun in the

trunk -- it's important to remember Officer Jones'

testimony. He told you that the gun in the trunk was in

close proximity to the counterfeit money in the trunk.

They were, in fact, in the same large white laundry bag

that he dumped out and out came the -- where is the

mailbag -- the mailbag that had counterfeit money and out

came the duffel bag that had the gun in it. They were next

to each other in this large white laundry bag. For the

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defendant to suggest that she knew nothing about that gun,

it simply doesn't make sense. The counterfeit money that

was in that postal bag matched the counterfeit money in her

purse. The gun was right next to that counterfeit money.

Also, we see that the defendant had no problem arming

herself. We saw this gun. This is not what you're going

to find in a typical traffic stop. It has got a flash

suppressor attached to it. We saw the Beretta that was in

her purse. She had no problem arming herself but the gun

that was found in her purse (sic), the one that subjects

her to federal charges because the serial number has been

drilled out, she wants to claim that that's not hers. When

you so readily arm yourself with firearms but the one that

can get you caught on federal charge is the one you say you

don't know anything about? Ask yourself if that makes

sense, if that's a credible explanation.

The second element is that the serial number of

the firearm in question, and that's Government's Exhibit

14, the firearm found in her trunk, the serial number from

that gun had been removed, obliterated or altered and I

don't think there really is any dispute at all on this.

You heard from Agent Brunson. He told you that all guns

have to have serial numbers on them and you cannot find a

serial number on this firearm. What you find instead is an

indent where it's been drilled out. So I really don't

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expect the defense to spend much time on this because it's

truly undisputed.

Now, it's important, though, for you to know that

we don't have to prove to you who scratched out that serial

number. We don't have to prove to you how it was done,

whether it was by a file or a screwdriver. We simply have

to prove to you that it was. It was obliterated and then

that gun was in her possession.

You will have an opportunity when you go back to

the jury room, if you would like, Government's Exhibit 14,

the gun can be sent back with you and you can see there is

no serial number. It has been obliterated. The gun pretty

much speaks for itself on that second element.

That brings us to our third element and that is

that the defendant knew that the serial number had been

removed, obliterated or altered, however, the government is

not required to prove that the defendant herself removed,

obliterated or altered the serial number. That's what I

was just speaking about. We don't have to prove that it

was removed. We have to prove that she knew it was

removed. And as I said earlier, no one can get into the

defendant's head and tell you definitively what she knew.

But we can tell you what she knew beyond a reasonable

doubt. And how do we do that? Well, look at the

defendant's actions. Look at what she did when she was

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pulled over by police. Again, and I hate to reiterate but

a lot of this evidence is interwoven. She used the

aliases. She used fakes IDs and she fled from them,

because she knew about the counterfeit money, Count One,

she knew about the gun with the obliterated serial number.

She new about all this stuff that she had in her

possession. We saw the extent to which she went so that

her true identity and her criminal activity wouldn't be

discovered. All of these aliases, all of these fakes IDs.

And, in fact, again, when it comes to the law, the Judge

will instruct you about aliases and about fleeing from law

enforcement. He will tell you that that type of conduct

may indicate that she thought she was guilty and was trying

to avoid punishment. That will be in your jury

instructions. Pay careful attention to that.

And the defendant wants you to believe that she

knew nothing about guns. You would have to be an expert to

know that a serial number was on a gun and it was

obliterated off of it, but look at the gun. You can

clearly see the indent and the idea that she knew nothing

about guns, that doesn't make sense. Look what was found

in her purse. She was street savvy. She was no babe in

the woods. She knew what she had. And think about why

someone would want a gun with an obliterated serial number.

Without a serial number, that gun cannot be traced. You

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cannot determine who bought that gun, who that person may

have sold the gun to and where the gun ultimately ended up.

Precisely the type of gun that you would want if you're

engaged in criminal activity. If you're engaged in

counterfeiting. She had a motive to have guns, certainly,

but she had a motive to have that particular gun that

couldn't be traced back to her, couldn't be traced back to

whoever gave it to her or wherever she got it.

The idea that the defendant had this gun but

didn't know exactly what it was, does that make sense given

what we know about the defendant? This is a defendant that

paid careful attention to detail. She was meticulous.

Look at the counterfeit money that you have, the security

features. They are there to replicate a real counterfeit

bill. Look at the fake IDs she had, different names on

each one, different addresses, different birth dates. She

paid attention to detail. She was meticulous. The idea

that she didn't know what that gun was all about simply

doesn't make sense in light of what we know about the

defendant.

The fourth and final element of Count Two is that

the firearm had at one time traveled in interstate

commerce, meaning it crossed state lines. That's

essentially what brings us into Federal Court, along with

the obliterated serial number, that's what makes it a

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federal crime. There, again, doesn't appear to be any

dispute on the last element. You heard from Agent Curtis

Brunson. He has examined thousands of guns. He knows guns

inside and out. He told you Government's Exhibit 14 was

manufactured in Prescott, Arizona. So to get into the

defendant's trunk, it had at one time crossed state lines.

We don't from prove that defendant had to cross state

lines. We just have to prove at some time in that gun's

history, it crossed state lines. Agent Brunson's testimony

is undisputed, undeniably credible. There's really no

dispute on that fourth and final element.

Considering all the evidence you heard in this

case, including the testimony you heard from Officer Brian

Kennedy, and he is the most -- I would imagine most of you

would agree, he is one of the most patient law enforcement

officers that any of us would hope to encounter if we were

pulled over for a traffic violation. He came in here and

his testimony was internally consistent and it was

consistent with all of the evidence that we have heard in

this case. He had no reason to come in here and lie to

you, and he didn't. It was credible.

You also heard from Officer Brian Jones. He

hobbled in here on his crutches and he told you about

popping open the defendant's trunk. He didn't have to

force it open. He could get into just like the defendant

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could get into it with her keys, or just pushing it open

from the inside of her car. And he told you what he found

in that trunk and, again, his testimony internally

consistent, consistent with all of the evidence in this

case.

You heard from Willie Reeves about selling the

car. I've already touched on that. You heard from the

mechanic who was in the car when she was pulled over, James

Rhodes. He was just there to fix the car and make ten

bucks. He was annoyed to be involved in any of this. It

was clear he didn't bring guns into her trunk, he didn't

bring guns into her purse, counterfeit money in the purse

or trunk. He never saw the trunk open. He also told you

that no one was in the car with the defendant when she came

to pick him up. She drove him to that motel where he fixed

the car. Didn't pick anyone up along the way, and she

didn't pick anyone up coming back. She was the only person

driving that car. She was the only one who owned that car.

It was sold to her and her alone. It was exclusively her

car, the contents of that car were hers.

And finally you heard from Secret Service Agent

George Powell. He told you how this counterfeit money took

some time to create. It was created that way so it could

fool people, so it could dupe them. The two counts in this

case have been proven to you beyond a reasonable doubt.

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Defendant possessed and intended to pass, intended to pass,

I have to watch my Ps, intended to hand over tens of

thousands of dollars' worth of counterfeit U.S. currency.

Instead of paying people who deserved real money, she gave

them worthless pieces of paper. And she did this so she

couldn't be caught. She assumed different aliases and had

fake IDs and she did it while armed, armed with a gun that

couldn't be traced back to her.

I ask you to return a verdict letting the

defendant know that the scheme has finally run its course.

A verdict that is consistent with the testimony and the

evidence that you have seen in this case, that's a verdict

of guilty of both counts. Thank you.

THE COURT: Thank you, Mr. Gabel.

Ms. Kostovski, if you would like to address the

jury, now it's your turn.

MS. KOSTOVSKI: Thank you, Judge.

CLOSING ARGUMENT

MS. KOSTOVSKI: Ladies and gentlemen, good

afternoon. First and foremost I want to thank each and

every one of you on behalf of my client, Ms. Michele

Johnson, and myself for paying close attention to this case

and basically for coming to work every day with us here to

try to really figure out what happened.

This is going to be my last opportunity to speak

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to all of you directly and to talk to you about what I

think the government has done or not done in this case.

First of all, I want to talk to you about what

this case is not about, which is very important. This case

is not about false identifications or false documents.

This case is not about valid or invalid driver's licenses.

It's not about whether Ms. Johnson fled from police

officers, did not give them correct information. It's not

about whether she was involved in the making of counterfeit

money. You already had that testimony from the chief agent

in this case, Agent Powell, who said she is not charged

with making false or counterfeit money.

It's also not about whether she provided false or

misleading information. It's not about whether she

cooperated with law enforcement or she did not cooperate.

It's not about whether these two guns, which have been

admitted, the Tec-9 and the Beretta, whether these were or

were not in the tan purse that was found in this case.

That's not what this case is about.

What this case is about are two counts, one,

whether she was in possession of counterfeit money -- the

Judge is going to define to you what the government has to

show you in this case, what constitutes possession of

counterfeit money. That's number one.

Number two, she is also charged with possession

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of a gun with an obliterated serial number, which is

Exhibit 14. This is the Ruger. That's what this case is

about. They spent a whole lot of time, ladies and

gentlemen, talking to you about what this case is not about

and not really a whole lot of time about what the case is

about. Why? Because they didn't have the evidence here to

show you and prove to you beyond a reasonable doubt what

the case is about. They had a whole lot of backdrop,

window dressing to paint Ms. Johnson as a dishonest,

terrible person but the focus here is, was she in

possession of counterfeit money as that term in defined?

And the Judge will tell you the legal definition. And was

she in possession of the Ruger handgun with an obliterated

serial number? That's what the focus of this case is

about.

Now, I want to talk to you just briefly about

what the government had to prove to you and why we believe

the government failed miserably in this case. First, that

the false bills were counterfeit. Second, that she

intended to use these false bills to deceive people like

yourself, like myself, like members in this room; and

third, that she was in possession.

Let's look at the government's evidence now.

There was testimony from Officer Jones yesterday, this was

the officer that came in on the crutches, and Agent Powell,

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that they believe that some of this money was counterfeit.

I would prefer to use the term false bills because there

might be some confusion in terms of the legal definition of

counterfeit money versus falls bills. And there is a

specific definition, which Mr. Gabel showed you. So there

is testimony that these bills were false. We are not going

to dispute that. But the government wants you to infer

that she was in possession of these false bills and that

she intended to deceive honest people, such as yourselves,

by trying to pass these bills in the general public.

Remember, they have to show you beyond a reasonable doubt

that all three elements of possession of counterfeit money

were met in this case. And here is why we believe that

they were not. First, there was no testimony that

Ms. Johnson was in actual possession of any of these false

bills. You have to make inferences in this case. That she

was in, basically, constructive possession either of the

bills that were found in the trunk or the bills that were

found in her purse. No one testified that she saw her with

any false bills in this case. That's not in dispute.

That's number one.

Number two, the construction -- the constructive

possession would have you infer that these items she knew

about were in the vehicle or in the purse. Keep in mind

she had just bought the vehicle a couple days before from a

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gentleman named Willie Reeves. There was another person

that was with her at the time of the traffic stop,

Mr. Rhodes. Could he have been involved in this? It's

possible. Would he tell you he was? No.

His testimony was pretty much self-serving. He

had no knowledge about anything that day, if you recall.

He couldn't remember much of anything but when he was asked

specific questions that would somehow implicate him in this

case, he knew right away the answer. So take his testimony

for whatever you feel it's worth. That is one of your

prerogatives in this case.

Secondly, and I think this is really the crux of

the failure of the Government's case, the counterfeit

bills. You all had an opportunity to look at these and I

want to give you some more samples to look at.

(Pause in proceedings)

Now, I'm going to just have you look at some of

the additional false bills in this case. If you want to

just pass these around. I'm also going to hand you what is

the -- a genuine bill to look at. You can take it out of

the pouch, pass it around.

There was testimony from their witness, Officer

Jones, who said he knew immediately that these were garbage

bills. The ink was running. They were pink. They were

off color. And if you take a look -- and you will have an

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opportunity in the jury room, if you look at the height of

the fake bill with the actual bill, you can clearly see

that the height is much smaller, even the cutting is not

even. The numbering and the coloring -- what the

government wants you to believe in this case is folks such

as yourself would be duped if you were handed that kind of

money. Officer Jones is not a Secret Service agent. He is

a regular citizen in the community. He doesn't deal with

counterfeit on a daily basis. So I wouldn't classify him

as an expert like Agent Powell but he certainly knew -- he

himself said I knew that this money was garbage when I

first saw it. I knew it was false. I wasn't going to be

fooled by it, and you shouldn't be fooled by it. That

isn't -- one of the most important elements that I believe

the Government has failed to show you here. They want you

to leave your common sense and logic at door and say, well,

we are going to be easily fooled by this. This is such

good quality. It's such good size and shape. This is

garbage. Anyone can see that. Feel it, touch it, look at

it. Compare it to the real 50 and you will see clearly you

would not be fooled.

Now, there was also a whole bunch of testimony

about the genuine currency that was taken in this case.

Again, no evidence to suggest, nothing other than innuendo

and just a continuing theme on the part of the government

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to paint Ms. Johnson as a bad person, that that money was

obtained by unlawful means. They gave you nothing to show

other than she had genuine currency. That's all.

They didn't tell you the source. They didn't

tell you -- that could have been money that she had saved

up during her lifetime. They could have been money that

someone had given her. That could have been money she

could have obtained from a bank. They showed you nothing.

They want you to speculate on where it came from, because

it fits their theory of the case that she is out there

passing these bad bills and accumulating good money.

Again, no evidence, no evidence. They haven't presented

anything to you.

What really surprised the defense today was Agent

Powell's testimony about a $50 bill. Agent Powell told you

really for the first time today, Exhibit 15A, which had a

series of serial numbers that apparently were the same, was

the same number in which some bills had been circulated 27

times throughout the community.

Now, that's interesting because that was never an

issue that was brought up by the government in this case

until today, that there was somehow some matching

information, number one.

Number two, nothing was brought in that any of

this was remotely related to this particular case. They

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just threw that in. They just threw that in to basically

make you believe that, of course, people have been fooled,

because 27 times these bills made it around. But they

can't tie any of that to this case, and the agent told you

that. Keep that in mind. All that was an attempt to say

good, honest decent people were fooled. They might have

been fooled but they weren't fooled as part of this case.

That's the critical difference that I want you to focus on

when you deliberate.

The other large focus in this case was this

envelope, Exhibit 17, "for stores, for nighttime." They

made a display of these notations and they told you that

that was her intent to defraud. Well, I don't think that

you need a bright light to figure out that this is garbage

money. It's almost like Monopoly money, really, if the

coloring was maybe a little bit different. It's almost

like Monopoly money. But do you really need the -- the

cover of darkness to try to pass this? If this was being

passed to stores, what stores operate at night under the

cover of darkness? I don't know what they're talking

about. Most stores at night are lit up very bright and

most people are very careful when they are taking money now

from anyone, for that matter. Use your common sense. Look

at this.

Now, as to the second charge, Mr. Gabel went over

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and showed you the four elements that the government has to

establish in this case. For purposes of my closing

argument, I will say that we are only disputing elements

one and three. As for element two, which the serial number

had -- I mean the gun had an obliterated serial number, we

are not disputing that -- that's there -- and the fact that

the gun was manufactured outside the State of Michigan. We

are not disputing that.

What we are disputing is element one, which

requires the government to prove to you that she knowingly

possessed the firearm and that she knew, she had actual

knowledge that that serial number was obliterated. And

again, here is why we don't believe that the government met

its burden on these two elements.

First, no testimony that anyone saw her with any

weapon at -- before the traffic stop or at any time. No

evidence was presented that they saw her in possession of

any weapons, number one.

Number two, the government's expert, Tracy

McIntosh, from the Michigan State Police, she came in here

and told you that twice they tried to do a fingerprint

match on the gun to Ms. Johnson. They were able to lift

the latent print but both sets of prints that were sent by

the Secret Service agent to the State Police did not match.

And what's really interesting is, when I was questioning

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Agent Powell about that, I found it highly incredulous that

he would say that he could not secure a good set of prints

to send to their expert for analysis. And also keep in

mind that Agent Powell wants you to believe that not only

he couldn't secure a good set of prints, but Redford Police

were so busy trying to secure the safety of the weapon that

they were just putting their hands all over it and if there

was any prints, it was rubbed off. That's two.

Three, he also said, and you heard him, that they

didn't need to use any gloves. They knew she was guilty

immediately. She was guilty. Everything was found in the

purse. Everything was in the car. Everything was side by

side. They didn't have to protect the evidence. They

didn't have to worry about contamination. They knew she

was guilty right off the bat. That's important.

Now, the third element about her knowledge that

the serial number had been altered or removed again, their

witness, Officer Jones, told you that a gun's serial

number, such as the gun here, is not something that is

readily -- and I think he used the word discernible but

basically it's not something that obvious to a person who

has no experience with guns, someone like Ms. Johnson.

Keep in mind they presented no evidence to you that she is

trained in guns or that she has some special or expert

knowledge in guns. This would require you to impose a

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conclusion, if you will, that you get a gun and you have to

look at it to make sure there is a serial number. I mean,

this is what they want you to find her guilty. That's how

she had knowledge. Because the serial number is gone, she

knew it was gone, therefore, she was in possession of it;

therefore, she's committed this crime. That's what they

want you to do in this case. I don't think they have shown

enough evidence to convict her on this particular offense.

And finally, I just want to thank you each and

every one of you once again for listening and paying close

attention to this case, and we hope that you come back with

a "not guilty" on Count One and Count Two. Thank you so

much.

THE COURT: Thank you, Ms. Kostovski.

Mr. Gabel, short rebuttal?

MR. GABEL: Yes, brief, Your Honor.

REBUTTAL ARGUMENT

MR. GABEL: Something that I forgot to discuss

with you when I first got up is the reasonable doubt

standard. Let me collect this money from you so we can

keep track of it. Thank you.

The Judge will instruct you on reasonable doubt

and, again, I ask you to pay close attention. It doesn't

mean we have to prove a case with absolute 100 percent

certainty. It doesn't mean beyond any shadow of a doubt.

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It's beyond doubts that are reasonable and there are no

reasonable doubts on either Count One or Count Two.

Now, the defense would like you to ignore

everything that the defendant had in her possession. In

fact, it sounds like she would like you to ignore the fact

that she had actual possession of that purse and its

contents. She told you that no one has proven that the

defendant had actual possession of any counterfeit money.

She was clutching that purse. She had possession of that

purse all day. It was right on her person. She had actual

possession of the money that was in that purse, the money

that matched the money that was found in her trunk. Of

course, she doesn't want you to consider the fact that she

used fake IDs and bogus names or had all of these firearms,

because that is the evidence that gives us a little window

into what was the defendant's mental state. What did she

know she had in her possession and what did she know she

couldn't be caught with? And that's why she fled. That's

why she gave bogus names.

The defense has also said that the testimony of

Willie Reeves, who owned the car, and the testimony of the

mechanic, James Rhodes, was self-serving and this is

apparently an attempt to make you think this could have

been their counterfeit money or their guns. Willie Reeves

told you he cleared that car out. There was no questioning

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of him, no testimony elicited from the defense that, no,

you left the stuff behind, no. He was clear when I asked

him and when the defense asked him, I didn't leave any

guns, I didn't leave any counterfeit money in that car.

That just doesn't make sense.

James Rhodes came in here again on crutches,

another one of our witnesses on crutches, and it appears

the defense wants you to maybe think that that could have

been his stuff. James Rhodes doesn't look like a man who

would carry around a purse. He is a scrapper. He was in

jeans and dirty clothes that day. He had his tools. He

doesn't have a purse, let alone a purse with guns and

counterfeit money. He never went into the trunk. Trying

to shift the blame to him simply doesn't make sense.

Defense has spent some time on the definition of

counterfeit and whether this was really good enough

counterfeit money, likening it to Monopoly money. This

looks like no Monopoly money I have ever seen, and I have

seen those nice new Monopoly boards that they put out for

the 25th and 50th anniversary where there are the gold

pieces and there's nice money. They never give you

something like this. I'm sure if any of us opened up a

Parker Brothers Monopoly game and this was on the inside,

you would be thrilled at first. You would think, oh, my

goodness, somebody put 100 bucks in there for me. But that

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doesn't happen because Monopoly money doesn't look like

this. And here I will pass around a genuine $50 bill that

was recovered and one of these counterfeit bills. And what

we are looking at, they don't have to be exactly identical.

They can't be exactly identical. The U.S. Treasury

Department has so many security features that you can't

make them exactly identical but they have to be close

enough that they could work, they could fool someone if

they are not suspecting it. If they think they're dealing

with someone who is honest.

Take a look at the real bill and the counterfeit

bill and you judge for yourselves, because you are the

finders of fact. And you can take this back to the jury

room if you want to take more time and look at it, but it

really is something that I think jumps out at you right

away. This is counterfeit money. This was intended to

deceive people who received it.

Remember Agent Powell's testimony and the care

and the time that went into creating the counterfeit money

that was in her possession. Remember the flash drives and

all those images of the security features. Count One has

been proven to you beyond a reasonable doubt.

Now, Count Two, possession of the obliterated

serial number, again, defense attorney says no one can

prove that she actually possessed any firearms. That's

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what she said. She had two guns in her purse, including

this gun, this gun. She actually possessed both guns. But

the defense wants to make this case all about just actual

possession and that gun in the trunk, she says we can't

prove she actually possessed it because it wasn't in her

hands. She didn't come out guns blazing. But, again,

listen to the Judge's instructions. You can have actual

possession and constructive possession.

Remember, my car, I have constructive possession

of that car and its contents because I intend to go into it

tonight and be able to get to anything I want. She

possessed that gun in her trunk. She had constructive

possession of it. And the idea that she didn't know about

the serial number, think about if you were to receive a

cell phone. You buy one at the store, someone gives you a

cell phone and you a notice a number on it scratched out,

or the manufacturer's name scratched out and drilled out.

That's something you're going to take note of. You are

going to notice that. And consider, especially if you're

engaged in criminal activity and you want a gun that can't

be traced back to you, you have a motive for having a gun

that can't be traced back to you. And how do you make sure

it can't be traced back to you? You make sure it doesn't

have a serial number.

Count Two, and all of those elements under Count

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Two, have been proven to you beyond a reasonable doubt. We

ask you to return a verdict that's consistent with that

evidence, a verdict of guilty on both of those counts. And

I thank you for your time and your careful attention during

the course of this trial. Thanks.

THE COURT: Okay, ladies and gentlemen, it's now

time for me to gave you instructions about the law that you

must follow in deciding this case. I'm going to start by

explaining your duties and the general rules that apply in

every criminal case. I'm going to explain the elements or

parts of the crime that the defendant has been accused of

committing. I'm going to explain some rules that you must

use in evaluating particular testimony and evidence. I'm

going to explain the rules that you must follow during your

deliberations in the jury room and the possible verdicts

that you may return. I'm also going to tell you that after

this, we are going to take you to lunch and provide for

both your lunch and your transportation there, and then

have you back and at the end of the instructions I will

discuss the schedule with you as well. After this, we will

take you to lunch and get everything taken care of.

Please listen carefully to everything that I have to

say. You have two main duties as jurors. The first is to

decide what the facts are from the evidence that you saw

and heard here in court. Deciding what the facts are in

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this case is your job and it's not mine and nothing that I

have said or done during this trial was meant to influence

your decision about the facts in any way.

Your second duty is to take the law that I give

to you, apply it to the facts and decide if the government

has proven the defendant's guilt beyond a reasonable doubt.

It's my job to instruct you about the law and you're bound

by the oath that you took at the beginning of the case to

follow the instructions that I give to you even if you

personally disagree with them. Now, this includes all the

instructions that I gave to you before the proof in

evidence in the case, during the trial, as well as these

instructions that I'm reading to you. All of the

instructions are important and you should consider them

together as a whole.

The lawyers have talked about the law quite a bit

during the trial but if anything they said is different

from what I say, you must follow what I told you. What I

say about the law controls. Perform your duties fairly.

Do not let any bias, sympathy or prejudice that you may

feel toward one side or the other influence your decision

in any way.

As you know the defendant had pleaded not guilty

to the crimes charged in the indictment. The indictment is

not any evidence at all of guilt. It's just the formal way

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that the government tells the defendant what crime she is

accused of committing. It does not even raise any

suspicion of guilt. Instead the defendant starts the trial

with a clean slate and no evidence at all against here --

with no evidence at all against her, and the law presumes

that she is innocent. This presumption of innocence stays

with her unless the government presents evidence here in

court that overcomes this presumption and convinces you

beyond a reasonable doubt that she is, in fact, guilty.

This means that the defendant has no obligation to present

any evidence at all or to prove to you in any way that she

is innocent. It is up to the government to prove that she

is guilty and this burden stays on the government from

start to finish. You must find that the defendant is not

guilty unless the government convinces you beyond a

reasonable doubt that she is guilty.

The government must prove every element of the

each crime charged beyond a reasonable doubt. Proof beyond

a reasonable doubt does not mean proof beyond all possible

doubt. Possible doubts or doubts based purely on

speculation are not reasonable doubts. A reasonable doubt

is a doubt based on reason and common sense. It may arise

from the evidence, the lack of the evidence or the nature

of the evidence.

Proof beyond a reasonable doubt means proof which

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is so convincing that you would not hesitate to rely and

act on it in making the most important decisions in your

own lives. If you were convinced that the government has

proved the defendant guilty beyond a reasonable doubt, say

so by returning a "guilty" verdict. If you are not

convinced, say so by returning a "not guilty" verdict.

You must make your decisions based only the

evidence that you saw and heard here in court. Do not let

rumors, suspicions, or anything else that you may have seen

or heard outside of court, influence your decision in any

way.

The evidence in this case includes only what the

witnesses have said while they were testifying under oath

and the exhibits that I allowed into evidence. Nothing

else is evidence. The lawyers' statements and arguments

are not evidence. Their questions and objections are not

evidence. My legal rulings are not evidence and my

comments and questions are not evidence.

During this trial I did not let you hear the

answers to some of the questions that the lawyers asked.

You must completely ignore these things. Do not even think

about them. Do not speculate about what a witness might

have said. These things are not evidence and you are bound

by your oath not to let them influence your decision in any

way. Make your decision based only on the evidence as I

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have defined it here and nothing else.

The evidence in this case consists of the sworn

testimony of the witnesses, regardless of who may have

called them, and all exhibits received in evidence,

regardless of who may have produced them. Any proposed

testimony or proposed exhibit to which an objection was

sustained by the Court and any testimony or exhibit ordered

stricken by the Court must be disregarded entirely.

Anything you may have seen or heard outside the

courtroom is not proper evidence and it also must be

entirely disregarded. Questions, objections, statements

and arguments of counsel are not evidence in the case

unless made as an admission or stipulation of fact. You

are to base your verdict only on the evidence received in

the case. In your consideration of the evidence received,

however, you are not limited to the bald statements of the

witnesses or to the bald assertions in the exhibits; in

other words, you are not limited solely to what you see and

hear as the witnesses testify or as the exhibits are

admitted. You are permitted to draw from the facts which

you find have been proven such reasonable inferences as you

feel are justified in the light of your experience and your

common sense.

You should use your common sense in weighing the

evidence. Consider it in light of your everyday experience

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with people and events and give it whatever weight you

believe it deserves. If your experience tells you that

certain evidence reasonably leads to a conclusion, then you

are free to reach that conclusion. If any reference by the

Court or by counsel to matters of testimony or exhibits

does not coincide with your own recollection of that

evidence, it is your recollection which should control

during your deliberation and not the statements of the

Court or of counsel. You are the sole judges of the

evidence received in this case.

Now, some of you have heard the terms direct

evidence and circumstantial evidence. Direct evidence is

simply evidence like the testimony of an eyewitness which,

if you believe it, directly proves a fact. If a witness

testified that he saw it raining outside and you believe

that witness, that would simply be direct evidence that it

was raining. Circumstantial evidence is a chain of

circumstances, simply put, that indirectly proves a fact.

If someone walked into a courtroom wearing a raincoat

covered with drops of water and carrying a wet umbrella,

then that would be circumstantial evidence from which you

could determine that it was raining. It's your job to

decide how much weight to give the direct and

circumstantial evidence in the case. The law makes no

distinction between the weight that you should give to

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either one or say that any one is better evidence than the

other. You should consider all the evidence, both direct

and circumstantial, and give it whatever weight you believe

it deserves.

Another part of your job as jurors is to decide

how credible or believable each witness was. This is your

job and not mine. It's up to you to decide if a witness's

testimony was believable and how much weight you think it

deserves. You are free to believe everything that a

witness said or only part of it, or none at all. But you

should act reasonably and carefully in making all of these

decisions.

Let me suggest some things for you to consider in

evaluating each witness's testimony. Number one, ask

yourself if the witness was able to clearly see or hear the

events. Sometimes even an honest witness may not have been

able to see or to hear what was happening and he or she may

make a mistake. Ask yourself how good a witness's memory

seemed to be. Did the witness seem able to accurately

remember what happened?

Thirdly, ask yourself if there was anything else

that may have interfered with the witness's ability to

perceive or to remember events. Fourth, ask yourself how

did the witness act while testifying? Did the witness

appear honest or did the witness appear to be lying?

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Ask yourself if the witness had any relationship

to the government, to the defendant, or anything to gain or

to lose from the case that might influence the witness's

testimony.

Ask yourself if the witness had any bias,

prejudice or reason for testifying that might cause the

witness to lie or to slant the testimony in favor of one

side or the other. Ask yourself if the witness testified

inconsistently while on the witness stand or if the witness

said or did something or failed to say or do something at

any other time that is inconsistent with what the witness

said while testifying. If you believe that the witness was

inconsistent, ask yourself if this makes the witness's

testimony any less believable. Sometimes it may, but other

times it may not. Consider whether the inconsistency was

something important, was about something important or about

some unimportant detail. Ask yourself if it seemed like an

innocent mistake or if it seemed deliberate. And ask

yourself how believable the witness's testimony was in

light of all the other evidence. Was the witness's

testimony supported or contradicted by other evidence that

you found believable? If you found that a witness's

testimony was contradicted by other evidence, remember that

people sometimes forget things and that even two honest

people who witness the same event may not describe it

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exactly the same way. These are only some of the things

that you may consider in deciding how believable each

witness was.

You may also consider other things that you think

shed light upon a witness's believability. Use your common

sense and your everyday experience in dealing with other

people, and then decide what testimony you believe and how

much weight you think it deserves.

There is one more general subject that I want to

talk to you about before I explain the elements of the

crimes charged. The lawyers for both sides objected to

some of the things that were said or done during the trial.

Don't hold that against either side. The lawyers have a

duty to object when they think something is not permitted

by the Rules of Evidence and those Rules are designed to

make sure that both sides receive a fair trial.

Do not interpret my rulings on their objections

as any indication of how I think the case should be

decided. My rulings were based on the Rules of Evidence

and not about how I feel about the case. Remember, your

decision must be based only on the evidence, the evidence

that you saw and heard here in court.

Now, that concludes my part of the instructions

explaining your duties and the general rules that apply in

every criminal case. I'm going to explain the elements of

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the crime that -- the crimes that defendant is accused of

committing. But before I do that, I want to emphasize that

the defendant is only on trial for the particular crimes

charged in the indictment. Your job is limited to deciding

whether or not the government has proven the crimes

charged.

Count One of the indictment then charges

defendant Michele Johnson with the crime of possession of

counterfeit money. Count One reads as follows: On or

about May 4, 2009 in the Eastern District of Michigan,

Southern Division, defendant Michele Johnson with intent to

defraud did possess falsely made, forged, counterfeited and

altered obligations of the United States, that is,

approximately $32,750 in counterfeit United States

currency, all in violation of federal law.

The federal law, Title 18 U.S. Code, section 472,

makes it a crime for anyone to possess United States money

with intent to defraud. For you to find the defendant

guilty of this crime you must be convinced that the

government has proven each of the following beyond a

reasonable doubt. First, that the defendant, in fact,

possessed counterfeit money. Second, the defendant knew at

the time that the -- at the time that the money was

counterfeit; and third, that the defendant possessed the

counterfeit money with intent to defraud. That is,

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intending to cheat someone by making that person think that

the money was real.

It's not necessary, however, to prove that the

defendant intended to cheat a particular person or that the

United States or anyone else was, in fact, cheated so long

as it is established that the accused acted with intent to

cheat someone.

An item qualifies as counterfeit currency if it

bears such a likeness or resemblance to any of the genuine

obligations or securities issued under the authority of the

United States as is calculated to deceive an honest,

sensible and unsuspecting person of ordinary observation

and care when dealing with a person supposed to be upright

and honest. To prove intent to defraud, the government may

present evidence that the defendant passed or attempted to

pass a false bill.

If the defendant is charged solely with

possession of a false bill, evidence of similitude, which

means similarity or likeness, is probative of intent to

defraud such that the more similar a false bill is to

genuine currency, the more likely the defendant intended to

use it fraudulently to procure goods and services.

Count Two of the indictment charges defendant,

Michele Johnson, with the crime of possession of a firearm

with an obliterated serial number. Count Two of the

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indictment reads as follows: On or about May 4, 2009 in

the Eastern District of Michigan, Southern Division,

defendant Michele Johnson knowingly possessed and in

interstate commerce a firearm that is one .9 millimeter

Ruger semiautomatic handgun from which the manufacturer's

serial number had been obliterated and altered in violation

of Title 18 United States Code, Section 922. Title 18 U.S.

Code, Section 922, makes it a crime for anyone to possess a

firearm which had the serial number removed or obliterated.

For you to find the defendant guilty of this charge, you

must find that the government has proved each of the

following four elements beyond a reasonable doubt. First,

that the defendant knowingly possessed the firearm

described in the indictment. This means that the defendant

possessed the firearm purposely and voluntarily and not by

accident or by mistake. It also means that the defendant

knew that the object was a firearm.

Second, that the serial number of the firearm in

question had been removed, obliterated or altered. Third,

that the defendant knew that the serial number had been

removed, obliterated or altered, however, the government is

not required to prove that the defendant herself removed,

obliterated or altered the serial number; and fourth, that

the firearm had at some time traveled in interstate

commerce.

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Now, I want to explain something to you about

possession. The government does not necessarily have to

prove that the defendant physically possessed the firearm

for you to find her guilty of this crime. The law

recognizes two types of possession, actual possession and

constructive possession. Either one of these, if proved by

the government, is enough to convict. To establish actual

possession, the government must prove that the defendant

had direct physical control over the firearm and knew that

she had control of it.

To establish constructive possession, the

government must prove that the defendant had the right to

exercise physical control over the firearm and knew that

she had this right and that she intended to exercise

physical control over the firearm at some time, either

directly or through other persons.

For example, if you left something with a friend

intending to come back later and pick it up or intending to

send someone else to pick it up for you, you would have had

constructive possession of it while it was in the actual

possession of your friend.

But understand, just being present where

something is located does not equate with possession. The

government must prove that the defendant had actual or

constructive possession of the firearm and knew that she

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did for you to find her guilty of this crime. This, of

course, is all for you to decide.

The length of time that an individual possesses a

thing is immaterial. If you find beyond a reasonable doubt

that the defendant possessed the firearm for any length of

time, this is sufficient if all the other elements of crime

are proved beyond a reasonable doubt. Then return a

verdict of guilty.

Next I want to explain something about proving a

defendant's state of mind. Ordinarily, there is no way

that a defendant's state of mind can be proved directly

because no one can read another person's mind and tell what

that person is thinking. But a defendant's state of mind

can be proved indirectly from the surrounding

circumstances. This includes things like what a defendant

said, what the defendant did, how the defendant acted and

any other facts or circumstances in evidence that show what

was the defendant's state of mind.

You may also consider the natural and probable

results of any acts that the defendant did knowingly or did

not do and whether or not it is reasonable to conclude that

the defendant intended those results. Again, this is, of

course, for all of you to decide.

Now, I want to say a word about the date and the

indictment. The indictment charges that the crimes -- the

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indictment charges that the crimes in Count One and Two

happened on or about May 4, 2009. The government does not

have to prove that the crime happened on that exact date,

but the government certainly must prove that the crime

happened reasonably close to that date.

That concludes my part of the instructions

explaining the elements of the crimes charged in the

indictment.

Next, I'm going to explain some rules that you

must use in considering testimony and evidence. You have

heard evidence --

MR. GABEL: Your Honor, I don't think jury

instruction number 22 -- it's no longer relevant in this

case before --

THE COURT: 22 comes out?

MR. GABEL: 22 comes out. Do you agree,

Ms. Kostovski?

MS. KOSTOVSKI: Yes, yes.

THE COURT: All right. 22 comes out.

MR. GABEL: Thank you, Your Honor.

THE COURT: Sorry about that.

Okay. A defendant has an absolute right not to

testify or present evidence. The fact that he did not

testify -- excuse me, the fact that she did not testify or

present any evidence cannot be considered by you in any

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way. Do not even discuss it in your deliberations.

Remember that it is up to the government to prove the

defendant guilty beyond a reasonable doubt. It is not up

to the defendant to prove that she is innocent. The law

does not require any party to call as witnesses all persons

who may have been present at any time or place involved in

the case or who may appear to have some knowledge of the

matters at issue in this trial, nor does the law require

any party to produce as exhibits all papers and things

mentioned in the evidence of the case.

One more point about witnesses, sometimes jurors

wonder if the numbers of witnesses who testified makes any

difference. Do not make any decisions based on the number

of witnesses who testified. What is more important is how

believable the witnesses were and how much weight you think

their testimony deserves. Concentrate on that and not on

the numbers.

You have heard evidence that the defendant

attempted to flee from law enforcement officers when they

attempted to arrest her and provided aliases when they

requested her identity. If you believe that the defendant

did the above, then you may consider this conduct, along

with all the other evidence in the case in determining

whether the government has proved beyond a reasonable doubt

that she committed the crimes that are charged. This

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conduct may indicate that she thought she was guilty and

was trying to avoid punishment.

On the other hand, sometimes an innocent person

may flee from law enforcement or provide aliases to avoid

being arrested for some innocent reason. This is, of

course, for you to decide.

You have heard testimony that the defendant

committed crimes, acts, wrongs other than those charged in

the indictment. If you find that the defendant did crimes,

acts, or wrongs, you can consider those pieces of evidence

only as they relate to the government's claim on the

defendant's intent and knowledge. You must not consider it

for any other purpose.

Remember that the defendant is on trial here only

for possession of counterfeit currency and possession of a

firearm with an obliterated serial number, not for the

other acts. Do not return a guilty verdict unless the

government proves the crime charged in the indictment

beyond a reasonable doubt.

You have heard the testimony of Special Agent

Curtis Brunson from the Bureau of Alcohol, Tobacco and

Firearms who testified as an opinion witness. You do not

have to accept Special Agent Brunson's opinion. In

deciding how much weight to give it, you should consider

the witness's qualifications and how he reached his

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conclusions. Also consider other factors discussed in

these instructions for you weighing the credibility of

witnesses. Remember that you alone decide how much of a

witness's testimony to believe and how much weight it

deserves.

You have heard the testimony of Special Agent

George Powell of the United States Secret Service, who

testified to both facts and opinions. Each of these types

of testimony should be given the proper weight.

As to testimony on the facts, consider the

factors discussed earlier in these instructions for

weighing credibility of witnesses. As to the testimony on

opinions, you do not have to accept Special Agent Powell's

opinion. In deciding how much weight to give it, you

should consider the witness's qualifications and how he

reached his conclusions, along with the other factors

discussed in these instructions for weighing the

credibility of witnesses. Remember that you alone decide

how much of a witness's testimony to believe and how much

weight it deserves.

Now, that concludes my part of the instructions

explaining the rules for considering testimony and

evidence. Let me finish up by explaining some things about

your deliberations in the jury room and your possible

verdicts.

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The first thing you should do in the jury room

when you come back from lunch is to choose someone to be

your foreperson. This person will help to guide your

discussions and speak for you here in open court. Once you

start deliberating, do not talk to any member of my staff

or to me or to anyone else except each other about this

case. If you have any questions or messages, you must

write them down on a piece of paper, sign them, and then

give them to a member of my staff. The staff member will

give them to me and I will respond to you as soon as I

possibly can. I may have to talk to the lawyers about what

you have asked and it may take me a little bit of time to

get back to you. Any messages to me should normally be

sent through your foreperson.

One more thing about messages, do not ever write

down or tell anyone how you stand on your votes. For

example, do not write down or tell anyone that you are

split six to six or eight to four, or whatever your vote

happens to be at that time. That should remain secret

until you are finished with your deliberation.

Now, you must make your decision based only on

the evidence that you saw and heard here in court. Do not

try to gather any information about the case on your own

while you are deliberating. Do not conduct any experiments

inside or outside the courtroom. Do not bring books,

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dictionaries, or anything else with you to help you with

deliberations and do not conduct any independent research,

reading or investigation about the case and do not visit

any of the places that were mentioned during the trial.

Make your decision based only on the evidence that you saw

and heard here in court.

Your guilty whether it is -- your verdict,

whether it is guilty or not guilty, must be unanimous. To

find the defendant guilty every one of you must agree that

the government has overcome the presumption of innocence

with evidence that proves her guilt beyond a reasonable

doubt.

To find the defendant not guilty, every one of

you must agree that the government has failed to convince

you beyond a reasonable doubt. Either way, guilty or not

guilty, your verdict must be unanimous.

Now, all of the evidence is in. The arguments

are concluded and I have instructed you, you are now free

to talk about the case in the jury room. In fact, it's

your duty to talk with each other about the evidence and to

make every reasonable effort you can to reach unanimous

agreement. Talk with each other, listen carefully and

respectfully to each others' views and keep an open mind as

you listen to what your fellow jurors have to say. Try

your best to work out your differences. Don't hesitate to

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change your mind if you are convinced that other jurors are

right and that your original position was wrong. But don't

ever change your mind just because other jurors see things

differently, or to get the case over with. In the end your

vote must be exactly that, your vote.

It's important for each of you to -- for you to

reach a unanimous verdict and agreement but only if you can

do so honestly and in good conscience. No one will be

allowed to hear your discussions in the jury room at all

and no record will be made of what you say, so you should

all feel free to speak your minds.

Listen carefully to what the other jurors have to

say and then decide for yourself if the government has

proved the defendant guilty beyond a reasonable doubt. If

you decide that the government has proved the defendant

guilty, then it will be my job to decide any appropriate

punishment and what it should be. Deciding what the

punishment should be is my job and not yours. It would

violate your oath as jurors to even consider possible

punishment in deciding your verdict. Your job is to look

at the evidence and decide if the government has proven the

defendant guilty beyond a reasonable doubt.

I have prepared a verdict form that should be

used to record your verdict. It's very simple and

essentially it asks on Count One, "guilty" or

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"not guilty" -- "not guilty" or "guilty". Count Two, "not

guilty" or "guilty". It has the case caption and a

signature block for the foreperson.

If you decide that the government has proved the

charge against the defendant beyond a reasonable doubt, say

so by having your foreperson mark the appropriate place on

the form. If you decide the government has not proved the

charge against her beyond a reasonable doubt, say so by

having your foreperson mark the appropriate place on the

form as well. Your foreperson should then sign the form,

put a date on it and return it to me.

I will conclude by repeating something I have

said and you have probably heard frequently, nothing that I

have said or done during this trial was meant to influence

your decision in any way. You decide for yourselves if the

government has proven the defendant guilty beyond a

reasonable doubt.

Now, the case is yours. The Marshals who are

here are going to take you for lunch. You don't have to

worry about paying for that. Be comfortable, eat, relax

and get fueled up for deliberations. We are going to bring

you back here after lunch to begin deliberating on the

case. We will go as long as practicable today and we will

have you here at 8:30 tomorrow morning. You will receive a

written copy of what I just read to you for your reference.

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You will receive all the exhibits in the case, but not the

guns. We will provide those to you if requested. You will

receive the verdict form and, I believe, that is all that

we send in with you. You will have coffee, water,

restrooms and you will not be disturbed.

If you need anything, buzz Alissa, and she will

come down and listen to you.

At this point I ask the lawyers if either side

has any objection to the charge. Mr. Gabel?

MR. GABEL: The United States has no objections.

THE COURT: Ms. Kostovski?

MS. KOSTOVSKI: No objection by the defense.

Thank you.

THE COURT: Thank you very much.

With that, we are going to swear in your

temporary bailiffs for the next period of time, which is

Susan and Alissa, and ask you to stand up.

(Temporary Bailiffs Sworn)

THE COURT: Now, the jury and the bailiffs have

been sworn and we're ready to retire for the day.

Please don't talk about the case when you are

outside. All right? Go have lunch and enjoy yourselves.

From what I have been told, it's a beautiful day out.

Relax, and then come back. I think you should be back

about 2:00. Sit down and get to business and follow the

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instructions that I gave you. All right.

You need anything, buzz Alissa, and we are very

grateful -- hold on before you stand up. We are very

grateful for your attention and participation.

Ms. Thomas had her hand up. Is there something

you need?

JUROR THOMAS: About the latest I can stay is

4:00.

THE COURT: That will be fine. You go start

deliberations at 2:00. When you get into a time pressure,

buzz and let Alissa know. Okay? Ms. Thomas?

JUROR THOMAS: Can I make a phone call?

THE COURT: You can make a phone call. I'm

sorry, Ms. Stevens.

JUROR STEVENS: I also need to make a phone call.

I need to get my son to the doctor at 4:15 today.

THE COURT: We will make the phone available to

you, absolutely.

I will note for the record I gave the impression

that we would end closing argument later today than we

actually did. The lawyers were very efficient and we are

now deliberating at 1:00 so I think it's a good idea for

you to start but I understand you won't be able to go the

whole day. No problem. All right? Don't worry about that

at all. We will go on your schedule. If you don't get

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anything done today, we will have you back tomorrow

morning. No problem.

Please rise for the jury.

(Jury out at 1:13 p.m.)

THE COURT: Okay, guys, what's the story? We

would ask you to stay within five minutes. You're down

here, right, Ms. Kostovski?

MS. KOSTOVSKI: Judge, actually, I have a

sentencing -- where is Judge Hood, this way. Just down the

hall at 2:00.

THE COURT: All right. Give Susan your cell

phone number, and stay close. Mr. Gabel is across the

street.

Anything else from anybody?

MR. GABEL: No. We have to gather this up and

take it back with the exclusion of the guns. Right? We

will do that.

THE COURT: You can give everything to the jury

but not the guns.

Anything else?

MR. GABEL: Nothing else from the government.

THE COURT: They are not going to be back here

until 2:00 so you can do whatever you want. Anything else?

Let me see counsel down by Karen, please, if you

don't mind.

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(Proceedings adjourned at 1:14 p.m.)

* * *

CERTIFICATE OF REPORTER

As an official court reporter for the United

States District Court, appointed pursuant to provisions

of Title 28, United States Code, Section 753, I do hereby

certify that the foregoing is a correct transcript of

the proceedings in the above-entitled cause on the date

hereinbefore set forth.

s/ Karen Klerekoper__

KAREN KLEREKOPER, CSR, RPR

Official Court Reporter

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