U.S. v. Kaczynski
Trial Transcripts
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1 SACRAMENTO, CALIFORNIA
2 WEDNESDAY, JANUARY 21, 1998, 2:00 P.M.
3 -- oOo --
4 THE CLERK: Calling criminal case S-96-259 GEB,
5 United States vs. Theodore Kaczynski. This matter is on for
6 defendant's motion for disclosure, Your Honor.
7 THE COURT: Counsel identify themselves for the record.
8 MR. BALAZS: John Balazs, Quin Denvir, Judy Clarke and
9 Gary Sowards for the defendant, Mr. Kaczynski. His presence
10 has been waived.
11 THE COURT: Good afternoon to all of you.
12 MR. FRECCERO: And it's Stephen Freccero and Steven
13 Lapham on behalf of the United States.
14 THE COURT: Good afternoon to you as well.
15 This is on the motion of the defendant to secure
16 information from the Government about so-called secret shacks.
17 Mr. Balazs, who argues for the defense?
18 MR. BALAZS: Say that again?
19 THE COURT: Who argues for the defense?
20 MR. BALAZS: Your Honor, I thought maybe we should start
21 by asking what other information the Government has in its
22 possession. They've already agreed to turn over photographs.
23 The other two things we're asking for is the location of the
24 shacks that they have located -- they said they have located
25 structures, and any inventory of the contents of the shacks,
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1 if anything.
2 If they are willing to give us that information, we
3 could resolve this matter.
4 THE COURT: I suppose you've implicitly answered my
5 first question that you're arguing, and that's what you want
6 to do, but let me ask you a few questions before I get to
7 that, Mr. Balazs.
8 And that's -- it's not really a Brady issue, because the
9 Government's correct in that if they showed you the photos of
10 the shacks and Mr. Kaczynski can identify them or not, that
11 information is within his purview. And so it wouldn't be a
12 Brady violation for them not to turn over the information.
13 Rule 16 has a broader sweep, though. And it doesn't
14 matter if the defense has some of that information in its
15 possession. So if you argue from Rule 16, my first question
16 to you is from the materiality aspect. I mean, in a sense, if
17 you've seen one shack, you've seen them all. And what else,
18 what is this going to add to the defense, if you get more
19 information?
20 MR. BALAZS: Well, I think it's significant -- two
21 points I could make. One is that, as we stated in the motion,
22 Mr. Kaczynski said that he built the shack because he felt
23 there was no place to escape civilization. I think it's
24 directly relevant to his mental state. We've already told the
25 Government, and they've brought a motion to preclude, which
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1 was denied, that we wanted to present information in the guilt
2 phase, and maybe in the penalty phase as well, of his
3 writings, of lay witnesses and other information that could go
4 to his mental state at the time of the offenses.
5 And, second, it's not just a matter of the shack itself
6 but what is in the shack and in the surrounding area. And so
7 we need to know whether or not they found anything in the
8 shack.
9 THE COURT: Seems like a motivation reminiscent of Henry
10 David Thoreau, perhaps.
11 Mr. Freccero, Mr. Lapham, who argues?
12 MR. FRECCERO: On behalf of the Government, I will, Your
13 Honor.
14 THE COURT: Have you shown the defense the photos?
15 MR. FRECCERO: No. We're prepared -- the point I want
16 to make is, we don't know whether these -- we have never known
17 whether these structures, and there are a number of them, and
18 we'll have a number of photos, and we'll show those to the
19 defense.
20 THE COURT: I want you to define "no" for me. I take it
21 from your papers you're not a hundred percent certain, but do
22 you have any level or knowledge, or did you just go out and
23 take pictures of any old place out there and wonder what it
24 was about?
25 MR. FRECCERO: Well, I can explain the dilemma we're
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1 in. For instance, in the defense's motion, they refer to
2 these shacks -- for instance, the quote Mr. Balazs just said,
3 as I read the references in writing, that's actually talking
4 about a different location than their motion. That's talking
5 about a location near what's called Rochester Gulch. And then
6 in their motion they're talking about a Diagonal Gulch.
7 THE COURT: Well, bear with me for a moment.
8 MR. FRECCERO: Okay.
9 THE COURT: And that is, you went out and took pictures
10 of shacks, correct?
11 MR. FRECCERO: That's correct.
12 THE COURT: And why did you take pictures of particular
13 shacks.
14 MR. FRECCERO: Because there are numerous locations in
15 the writings of Mr. Kaczynski. There are two reasons we've
16 done that.
17 THE COURT: No. I mean, why did you take those
18 particular shacks to take pictures of? Did you have any
19 knowledge that this might be a shack related to defendant
20 Kaczynski?
21 MR. FRECCERO: Absolutely. We're trying to figure out
22 whether the references in the writings, and that's what we
23 based it on, so there's a number of things -- yes, we didn't
24 just go out into the wilderness and photograph anything we
25 saw. These are locations which, as best we can figure out,
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1 could be or might be or sound similar to locations mentioned
2 in Mr. Kaczynski's writings.
3 THE COURT: And have you acquired any confirmation that
4 one place or another is probably related to the defendant?
5 MR. FRECCERO: Well --
6 THE COURT: In other words, have you interviewed the
7 neighbors? Did you talk to any --
8 MR. FRECCERO: Yes, we have.
9 THE COURT: All right. And so did you make any
10 documents regarding interviews with the neighbors?
11 MR. FRECCERO: We have a number of interview reports of
12 those people.
13 THE COURT: And did any of those interview reports
14 indicate to you that it's more likely than not that a
15 particular cabin or shack was utilized by defendant
16 Kaczynski?
17 MR. FRECCERO: Yes.
18 THE COURT: All right. And that's the information that
19 they want.
20 MR. FRECCERO: That's right. I take that -- some of
21 it's right. You're asking us if we've been able to confirm;
22 we've had a number of people tell us we think there's
23 something over here or there. We have. And I would note for
24 the record, too, these are people who had told us they have
25 already been interviewed by investigators working on behalf of
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1 these lawyers (indicating) in Montana.
2 THE COURT: All right. But remembering that Rule 16, it
3 doesn't really matter whether the defendant has some or all of
4 the information within the defendant's control, the Government
5 has obligations and you turn it over regardless, unlike your
6 Brady requirements.
7 Why should I not just order you to turn over those
8 documents which indicate a likelihood that that particular
9 cabin or shack belonged to the defendant? You can argue about
10 the admissibility or the foundation or the confirmation of it
11 at trial, assuming it's admissible, if at all. Why shouldn't
12 I just tell you to give them -- why shouldn't you give them
13 the documents?
14 MR. FRECCERO: Well, I would request that we not -- the
15 information is not a problem. We have given -- we have
16 protected the confidentiality of people who have given that
17 information.
18 THE COURT: But if they've already talked to them, as
19 you've told me, what difference does it make? I could say
20 tongue in cheek, perhaps, inquire of the media; there are
21 probably people crawling all over that place right now as we
22 speak, talking with people. I don't think privacy's an issue
23 anymore.
24 MR. FRECCERO: Well -- very well. If I could just note,
25 again, we have no objection to that. We want to make sure our
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1 position is we cannot independently confirm whether or not
2 these shacks, these structures, are those referred to in the
3 writing. Only Mr. Kaczynski can do that.
4 THE COURT: All right.
5 MR. FRECCERO: So we don't -- if I could explain by
6 way -- if the Court would permit me to explain the second part
7 of my answer as to why I -- why we haven't done that. And we
8 have, as I said in our papers, expressed concern for issues
9 other than litigation to get to the bottom of some of these
10 locations. So that we could alleviate ourselves of concerns
11 other than this litigation. And that's what we've been
12 attempting to do with the defense attorneys. But simply, you
13 know -- you just have to give us all your information, and
14 that way we will never be able to confirm or not whether we
15 have alleviated those collateral concerns. And that's why
16 we're here today.
17 THE COURT: Which are --
18 MR. FRECCERO: There are public safety concerns. In
19 these writings there are references to buried articles,
20 ammunition, references to booby traps set out there. In the
21 writings it says that I'm deliberately not revealing the
22 location of that so that no one will find it and be able to
23 dismantle it. We've gone all over the place there. We've
24 taken metal detectors.
25 And so we have, and have told them for quite some time
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1 now, other than litigation -- we're not going to use any of
2 this. We simply want to assure ourselves that the public
3 safety as regards all this area is satisfied. We're not going
4 to use that evidence. And that's why we've ended up in this
5 position.
6 THE COURT: I understand your motivation, but it doesn't
7 follow that you shouldn't turn the documentation over to the
8 defendants. It may mean nothing; it may mean something at
9 this point. Certainly to the extent that it appears likely
10 from the documents that the defendant may have utilized these
11 cabins, I'm sure you're watching it, for the very reasons that
12 you have just related to me. Turning that information at this
13 time over to the defense counsel won't impact those collateral
14 concerns, I don't think.
15 MR. FRECCERO: Fine, Your Honor. Again, my confusion is
16 also because it's not clear to me -- until they filed that
17 motion, it wasn't even clear to us that there were two
18 shacks. In other words, there's a number of references to all
19 different locations.
20 So I'm a little confused as to what our obligation to
21 turn over is. And that's why I suggested we'll show the
22 photographs of what we have. Hopefully they will tell us,
23 "This is what we're interested in; this is not."
24 THE COURT: All right. I'll be able to assist you
25 there. Besides photos and 602s, I take it --
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1 MR. FRECCERO: I don't know if there are formal
2 reports. There is some sort of documentation.
3 THE COURT: All right. We'll call it the 602 or
4 informal report. Is there any other documentation in the
5 possession of the Government related to any of these cabins or
6 shacks or whatever?
7 MR. FRECCERO: No, nothing besides what we've already
8 turned over to the defense. We have turned over photographs
9 pertaining to other locations mentioned in the writings,
10 cabins, etc. There is no physical evidence. We have seized
11 no evidence from these locations.
12 THE COURT: You seized no evidence from locations
13 outside of the cabins themselves but that relate to the cabins
14 other than what you've told me about, photos and reports of
15 some type?
16 MR. FRECCERO: That is correct.
17 THE COURT: All right. With respect to any photos or
18 reports that you have in your possession, in the Government's
19 possession, in which it appears that from the photo -- from
20 the reports and the photos that go along with it that it
21 relates to utilization by defendant Kaczynski, turn that over
22 to the defense.
23 MR. FRECCERO: (Nods head up and down.)
24 THE COURT: If you have -- if your report indicates that
25 we've got, in essence, Report One and Photo One and the report
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1 links the defendant to that cabin and the photo is of that
2 cabin, turn it over.
3 If, on the other hand, the photo and the report gives no
4 inkling whatsoever that it could have been utilized by the
5 cabin [sic], as far as you know, it's just out there, you have
6 no idea who used it and the report -- that's what I mean, you
7 have no idea, the report does not give any indication who used
8 it -- you don't have to turn it over.
9 MR. FRECCERO: Okay. And could I also note for the
10 record so it's clear -- I assume the Court realizes -- none
11 of this is on any property connected to Mr. Kaczynski's
12 property. In fact, in some cases it's difficult to figure out
13 where it is. Most of this, we're talking about areas in
14 national park, or may or may not be private.
15 THE COURT: I assumed that, because I understood the
16 initial property was a half acre to an acre.
17 MR. FRECCERO: That's correct.
18 THE COURT: And I don't know how many places you could
19 build on that to get away from it all.
20 Mr. Balazs, will that satisfy you?
21 MR. BALAZS: Yes, Your Honor.
22 THE COURT: All right. Any questions at all,
23 Mr. Freccero?
24 MR. FRECCERO: No, Your Honor. And the scope -- I'm
25 just trying to understand -- the scope pertains to those
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1 locations they've tried to describe in their motion?
2 THE COURT: No. It refers to any locations that the
3 Government has knowledge of from its report, from its
4 interviews, from its confirmation process, that there's a
5 shack out there that may have been utilized by defendant
6 Kaczynski. I don't care if they've used the right gulch
7 annotation in their motion. If you've got some information
8 that relates to that, turn it over.
9 MR. FRECCERO: Okay. Okay. I guess my hesitation -- I
10 just want to make sure it's not a problem; I want to make sure
11 we comply with the Court's order, and that is because where he
12 may have spent time -- because, for instance, there's
13 references to all kinds of place in his writing and places
14 where he went one day or he took other certain acts at a
15 particular place.
16 The Court's ruling, as I understand it, the materiality
17 pertains to some place that shows that he stayed or spent some
18 kind of time, a shack?
19 THE COURT: Correct. I'm not interested in every place
20 that he's visited in his life, but some place that he more or
21 less had possession of for some point in time, that he had
22 some -- either just took up residence there or did some type
23 of building to it.
24 That's what they're looking for, correct, Mr. Balazs?
25 MR. BALAZS: Yes, Your Honor.
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1 THE COURT: All right.
2 Is there anything else that we need to do here today?
3 MR. BALAZS: The only other issue would be the timing of
4 the disclosures, and with the trial starting tomorrow, we'd
5 ask as soon as practicable, hopefully by the end of today.
6 MR. FRECCERO: Mr. Freccero, how much time will it take
7 you to get these things together?
8 MR. FRECCERO: Well, I can certainly start with the
9 photographs and a couple of documents, I think, promptly, by
10 the end of the day. I will then do a much more broad search
11 to make sure I haven't -- there are no other documents out
12 there that might be relevant. But we can start that initially
13 today.
14 THE COURT: All right. Thank you. Do the initial
15 disclosure by the end of today; and by Wednesday of next week,
16 everything else.
17 MR. FRECCERO: Thank you.
18 And, Your Honor, I would just note that we may not have
19 copies of the photographs, so we might have to show the
20 photographs and make arrangements for copies, if they
21 actually -- if any of those photographs are relevant. I can't
22 make copies by the end of today, is what I'm saying.
23 THE COURT: Right. Make a Xerox by the end of today.
24 If they need something better, they'll tell you.
25 All right. Anything else?
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1 MR. BALAZS: No, Your Honor. Thank you.
2 THE COURT: All right. Thank you very much. We're in
3 recess.
4 (Time noted: 2:17 p.m.)
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1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
3 -- oOo --
4 BEFORE THE HONORABLE GREGORY G. HOLLOWS, MAGISTRATE JUDGE
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7 UNITED STATES OF AMERICA, )
)
8 Plaintiff, )
)
9 vs. ) No. Cr. S-96-259 GEB
)
10 THEODORE JOHN KACZYNSKI, )
)
11 Defendant. )
______________________________)
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15 -- oOo --
16 REPORTER'S TRANSCRIPT
17 JURY TRIAL
18 DEFENDANT'S MOTION FOR DISCLOSURE
19 WEDNESDAY, JANUARY 21, 1998
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Reported by: SUSAN VAUGHAN, CSR No. 9673
1 A P P E A R A N C E S
2 For Plaintiff UNITED STATES OF AMERICA:
3 OFFICE OF THE U.S. ATTORNEY
650 Capitol Mall
4 Sacramento, CA 95814
BY: STEPHEN P. FRECCERO
5 R. STEVEN LAPHAM
Special Attorneys to the
6 United States Attorney General
7 For the Defendant:
8 OFFICE OF THE FEDERAL DEFENDER
801 "K" Street, Suite 1024
9 Sacramento, CA 95814
By: QUIN A. DENVIR
10 Federal Defender, Eastern District of California
JUDY CLARKE
11 Executive Director, Federal Defenders of
Eastern Washington and Idaho
12 JOHN P. BALAZS
Assistant Federal Defender,
13 Eastern District of California
14
STERNBERG, SOWARDS & LAURENCE
15 604 Mission St., 9th floor
San Francisco, CA 94105
16 BY: GARY D. SOWARDS
17
Also Present: TERRY TURCHIE, Assistant Special Agent,
18 F.B.I. Unabom Task Force
ROBERT ROLFSEN, JR., Special Agent, F.B.I.
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