Buczek 20100305 Transcript 4 - 121

VOL.
IV
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
-------------------------------------
UNITED STATES OF AMERICA,
-vs- 09-CR-121S
SHANE BUCZEK,
Defendant.
-------------------------------------
Proceedings held before the
Honorable William M. Skretny, Part IV,
U.S. Courthouse, 68 Court Street,
Buffalo, New York on March 5, 2010.
APPEARANCES:
MARY CATHERINE BAUMGARTEN,

Assistant United States Attorney,
Appearing for the United States.
SHANE BUCZEK,
Appearing Pro Se.
BRIAN COMERFORD,
Assistant Federal Public Defender,
Appearing as Standby Counsel for Defendant.
Michelle L. McLaughlin, RPR,

Official Reporter,
U.S.D.C. W.D.N.Y.
(716)332-3560
335
1 I N D E X
2 WITNESS PAGE
3 OPENING STATEMENT BY MR. BUCZEK 412
4 AMANDA L. BUCZEK
Direct Examination by Mr. Buczek 420
5 Cross-Examination by Ms. Baumgarten 425
6 ADAM J. BUCZEK
7 Cross-Examination by Ms. Baumgarten 433
8 KENNETH WEITZEL
9 Cross-Examinatino by Ms. Baumgarten 442
10 JURY CHARGE CONFERENCE 460
11 SUMMATIONS
Ms. Baumgarten 468
12 Mr. Buczek 475
13 CHARGE TO THE JURY 480
14 VERDICT AS TO COUNT I 526
15
16
17
18
19
20
21
22
23
24
25
336
1 (Jury not present in the courtroom.)
2 THE COURT: Okay Miss Labuzzetta, if you
3 would call the case.
4 THE CLERK: Criminal case 09-121S, United
5 States of America versus Shane Buczek.
6 THE COURT: Okay. The attorneys and
7 Mr. Buczek are present. We're resumed in the case.
8 A matter has come to my attention that I think
9 needs some discussing this morning. Mr. Comerford.
10 MR. COMERFORD: Yes, Judge. I received
11 information that one of the jurors, I believe Brian
12 Nycel --
13 THE COURT: Juror number five.
14 MR. COMERFORD: Juror number five, spoke
15 on the phone with Carol Steinbruckner, who until
16 about a month ago was employed with my office, it's
17 someone who's met the defendant, had some
18 interaction with him, and is somewhat familiar with
19 this case. Apparently Mr. Nycel did speak to her
20 about the case. I don't know exactly what was
21 said, but there was some conversation about it. I
22 don't know that Miss Steinbruckner -- I don't think
23 she said anything about Mr. Buczek. But I do know
24 that Mr. Nycel appears to be talking about the case
25 to someone from my office. I think it's a problem

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1 and that it shows that he's not following the
2 Court's instructions to not discuss the case
3 outside the courtroom, not contact people, those
4 sorts of things.
5 THE COURT: All right. You don't know the
6 substance of the conversation?
7 MR. COMERFORD: I know it was about the
8 case. I know there was some commentary about
9 whether this guy should be proceeding pro se,
10 whether he should have his lawyer. Mr. Nycel's
11 opinion was that he should his own lawyer, he
12 shouldn't be doing this himself.
13 THE COURT: Generally speaking that was
14 the sum and substance of the conversation as you
15 know it to be?
16 MR. COMERFORD: I think so.
17 THE COURT: You communicated that to
18 Mr. Buczek?
19 MR. COMERFORD: I did, Judge.
20 MR. BUCZEK: Judge, I just found out about
21 this.
22 MR. COMERFORD: I told him this morning
23 when I came in.
24 THE COURT: Okay. And this allegedly
25 happened when?
338
1 MR. COMERFORD: I think yesterday.
2 THE COURT: During the day?
3 MR. COMERFORD: I'm shot sure when the
4 witness spoke to Carol Steinbruckner, but I think
5 it was yesterday. We just heard about it from
6 Carol Steinbruckner late last night.
7 THE COURT: I know the Federal Public
8 Defender, Miss Mariano, is here. I think you have
9 some information on that. If you want to come up
10 to the podium. I'm not going to speak to you
11 directly yet, but I want to hear from
12 Miss Baumgarten.
13 I'll tell you what I did, and then I'd like the
14 government's comment. I'm going to ask for
15 whatever specifics that you have, Miss Mariano,
16 that can supplement kind of the summary that was
17 given to me by Mr. Comerford. But first, there was
18 an article -- there is an article in today's
19 Buffalo News relative to the case.
20 MR. BUCZEK: There is?
21 THE COURT: It's in the local section of
22 the newspaper.
23 MR. BUCZEK: I haven't seen it.
24 THE COURT: What I did was I removed the
25 page from the newspaper that contains the article

339
1 from any jurors' newspapers that were brought in to
2 the building. So I think I have three or four
3 copies of that article, and then I returned the
4 newspapers to the jurors. And I think that's in
5 keeping with the charge that I gave to the jury
6 last evening, anticipating that there likely would
7 be a newspaper article because one of the news
8 reporters was in the courtroom for a good portion
9 of the day off and on.
10 MR. COMERFORD: Judge, could I just ask
11 about that. The article does mention Mr. Buczek's
12 other pending case and a prior case in Buffalo City
13 Court and some other conduct by him. Does it make
14 sense to inquire of the jurors whether they saw the
15 article, read the article?
16 THE COURT: Yeah, that's what we're going
17 to talk about.
18 MR. COMERFORD: Thank you, Judge.
19 THE COURT: We'll talk about how to
20 proceed with respect to the article. Just so
21 everybody knows, no juror brought in a newspaper
22 into the jury room that contained a copy of the
23 article. I have all the articles.
24 MR. BUCZEK: Judge, I do just want to make
25 a record of this. I believe the case is concerning

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1 the incident at HSBC. That was like five years
2 ago. That -- that was reversed two years ago by
3 Judge Pietruszka.
4 MR. COMERFORD: It says that in the
5 article.
6 MR. BUCZEK: The thing that's really
7 fascinating about this case, for two years it's
8 been sitting in Buffalo City Court waiting to see
9 the results from here. Double jeopardy maybe? I
10 just want to put it on the record.
11 THE COURT: No.
12 MR. BUCZEK: Why is it sitting there?
13 They won't call me back into court for two years?
14 THE COURT: Okay. Well, I understand
15 that's a concern of yours, but as far as this case
16 is concerned, no, it's not double jeopardy. Okay.
17 MR. BUCZEK: And another thing, Judge, is
18 I have -- the eyewitness flew in from
19 Philadelphia --
20 MR. COMERFORD: Let's resolve the juror
21 stuff, and then we'll talk about witnesses.
22 THE COURT: We're going to take one step
23 at a time, Mr. Buczek.
24 Okay. And the other thing that I did was when
25 Mr. Nycel arrived for jury service this morning, I

341
1 had him taken directly to Charlene Schumacker's
2 jury assembly room. He has not mixed with any of
3 the other jurors in this case. And I have not told
4 the jury anything about why he's not present with
5 them, and all I had communicated to Mr. Nycel was
6 that he should just relax and wait there, and at
7 some point not too long from when we asked him to
8 step in there -- the court security officers did --
9 that I would be in touch with him, and we'll go
10 from there. So, to the extent that I could
11 minimize any exposure of Mr. Nycel to the other
12 jury members, I've taken that step as well, all of
13 that I think to make certain that you are in no way
14 prejudiced from whatever is going on here,
15 Mr. Buczek, okay?
16 MR. BUCZEK: Judge, I was totally unaware
17 of that. I don't even know what this is all about.
18 THE COURT: Okay. That's what I'm telling
19 you. You understand what I'm saying though, right?
20 MR. BUCZEK: Yeah.
21 THE COURT: Legally and procedurally we
22 have to deal with it. It may take a little bit of
23 time, but we'll get it addressed. So I think
24 before I ask for your comments, Miss Baumgarten,
25 I'm going to ask Miss Mariano to fill us in on any

342
1 details she has, and then we should have all the
2 information that there is to have, and we'll figure
3 out a course of conduct with respect to both the
4 newspaper article and whatever transpired with
5 Brian Nycel and Carol Steinbruckner.
6 All right. Miss Mariano.
7 MS. MARIANO: Thank you, Judge.
8 Miss Steinbruckner called me at 9:00 o'clock last
9 night. Her cousin is Mr. Nycel's mother, and they
10 had talked earlier in the day or maybe the day
11 before and learned that Mr. Nycel was on a jury,
12 and oh, by the way, it's federal, and I think that
13 that conversation --
14 THE COURT: I'm sorry. Nycel is Carol
15 Steinbruckner's cousin, is that what you said?
16 MS. MARIANO: It's her cousin's son, which
17 is still her cousin.
18 THE COURT: Her cousin's son, okay.
19 MS. MARIANO: But she was talking to his
20 mother basically, came up he was on this jury
21 trial. There was some conversation at that time,
22 but no contact with the juror. When Carol called
23 me at 9:00 o'clock last night, some time last
24 evening her cousin, the juror's mother, called her
25 back and then put the juror, Mr. Nycel, on the

343
1 telephone, at which time he discussed with her
2 things that had been going on in the trial, had
3 shared with her his opinion of Mr. Buczek and his
4 choices to represent himself. Carol --
5 Miss Steinbruckner advises that she -- first I
6 should advise the Court she was not Mr. Comerford's
7 secretary, so she didn't handle any of the specific
8 case-related work.
9 THE COURT: She's not employed by the
10 federal public defender's office now, right?
11 MS. MARIANO: She is not. As of one month
12 ago she is not. She has been employed by our
13 office during the time that we represented
14 Mr. Buczek. She is familiar with the case. We are
15 a small office. We all pretty much know who people
16 are representing, but she hasn't done any case
17 related work, and I have every confidence that
18 Miss Steinbruckner did not share any information
19 that we've obtained during our representation of
20 Mr. Buczek with the juror. I'm confident in that,
21 Judge. But she did feel -- she waited a couple
22 hours before she called me, and when she did, my
23 sense was she was concerned about the conversation.
24 And I think the concern may have been that the
25 juror was expressing opinions that, while she may

344
1 not have commented on, her absence of a comment may
2 have given him other indications. She didn't
3 explicitly say that, Judge, but she was very
4 concerned, strongly suggested that we contact the
5 Court to ensure that he didn't go into the jury
6 room this morning.
7 THE COURT: I appreciate the fact that all
8 of that information has been brought to my
9 attention, but -- so what you're telling me is that
10 the conversation likely took place telephonically
11 about 7:00 o'clock or so, then two hours later she
12 called?
13 MS. MARIANO: Yes.
14 THE COURT: So that's as best a time line
15 as you have to date.
17 THE COURT: Have you spoken directly with
18 Miss Steinbruckner?
20 THE COURT: Okay. And you spoke with her
21 mother as well, or not?
22 MS. MARIANO: I did not.
23 THE COURT: Miss Baumgarten.
24 MS. BAUMGARTEN: Regardless of what the
25 comments were, your Honor, I think it's very clear

345
1 that the juror disregarded this Court's numerous
2 instructions not to do exactly what was done here.
3 Without getting into all the details of what he
4 said, I think the most important thing is that the
5 jurors made a commitment to listen to what the
6 Court said to keep their minds open, and to follow
7 the Court's instructions, and the juror has not.
8 THE COURT: All right. Do you have a
9 proposal? Check with Mr. Bruce.
10 MS. BAUMGARTEN: At this point the
11 government would suggest to the Court that the
12 juror be voir dired outside the presence of the
13 other jurors so that the Court can determine
14 exactly what occurred, what information was
15 imparted, what actions he took, and then thereafter
16 whether or not information was imparted from this
17 juror at any time prior to the occurrence that we
18 know of to the other jurors that violated the
19 Court's instructions not to comment or discuss the
20 case with other jurors until the case was
21 completed.
22 THE COURT: And that voir diring you want
23 me to do outside, not only the presence of the
24 other jurors, but outside the courtroom?
25 MS. BAUMGARTEN: Yes, your Honor.

346
1 THE COURT: So you want that done in
2 camera?
3 MS. BAUMGARTEN: Well, no. The government
4 would recommend that be done in the courtroom, your
5 Honor. But having said that, the Court conduct the
6 voir dire, not the parties or the representatives.
7 THE COURT: Okay. I mean, I'm inclined to
8 do it in that fashion.
9 Mr. Buczek, do you know what that means?
10 MR. BUCZEK: I was going to ask briefly
11 the in camera hearing.
12 THE COURT: All right. I don't know what
13 you mean by in camera, but let me explain what I
14 propose to do, and it's consistent with what I
15 think is in the best interest of both sides. It's
16 very similar to what Miss Baumgarten just proposed.
17 I'm going to bring the juror in and he's going to
18 be seated in the juror box.
19 MR. BUCZEK: Okay.
20 THE COURT: And I don't think I want to
21 put him on the witness stand, but I'm going to put
22 him in the jury box, and I will question him. I
23 will ask him what he did in connection with any
24 conversation he may have had about your case, then
25 you'll hear what he has to say.

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1 MR. BUCZEK: Okay.
2 THE COURT: Everybody will know from him
3 what his conversation was and whether he violated
4 any of my instructions about keeping everything
5 that's involved with this case confidential. He
6 shouldn't be discussing it. I also want to find
7 out if he's discussed this case with the other
8 jurors as well. And then what I will do is I'll
9 take a break, we'll take a side bar, and then if
10 you have any questions that you want me to ask,
11 then you can let me know that. And then we'll
12 decide whether we replace Mr. Nycel with alternate
13 number one, who is Miss Sorrento. That's the way
14 we're going to proceed. Okay. What I want you to
15 do is work with Mr. Comerford. If you have any
16 initial questions you want me to ask Mr. Nycel,
17 give me those questions, and same thing for the
18 government. I'll do the voir dire. And then we'll
19 make a determination with respect to Mr. Nycel
20 first. And then I will voir dire the full jury and
21 find out if there were any communications with
22 Mr. Nycel about the case in terms of the
23 discussions, and also I'll bring up the article and
24 see if there's any further reason why we should
25 have additional inquiry about juror exposure to the

348
1 newspaper article. So we've got those things to
2 take care of, okay?
3 MS. BAUMGARTEN: Thank you, Judge.
4 THE COURT: Okay.
5 MR. BUCZEK: Sorry, just one question.
6 THE COURT: All right. Miss Mariano, stay
7 around though.
8 MS. MARIANO: I'm going to stay, Judge.
9 THE COURT: Okay. Thank you. Mr. Buczek.
10 MR. BUCZEK: Is there any way to, you
11 know, stop the printing of the Buffalo News? It's
12 already came out. But I thought they were supposed
13 to hold off until the trial was over.
14 THE COURT: No. The News has the right to
15 publish articles.
16 MR. BUCZEK: I haven't seen it, Judge.
17 This is all brand new o me.
18 THE COURT: That's probably a good thing,
19 Mr. Buczek. But I'll get you a copy of the
20 article, and if you don't have it, you can look at
21 it --
22 MR. BUCZEK: Please.
23 THE COURT: -- with Mr. Comerford, and
24 then you'll know precisely what's in there.
25 MS. BAUMGARTEN: Your Honor, I would note

349
1 for the record that the article refers to
2 quotations from the defendant himself. It may be a
3 wise course that if the defendant wishes not to
4 have that sort of publicity, that he refrain from
5 responding or quoting to the Buffalo News itself.
6 He does have a right to talk about it, your Honor,
7 I'm not saying that. But to the extent that he's
8 seeking to trying to not have it covered, it might
9 facilitate that for him not to speak with them.
10 THE COURT: Okay. The record will so
11 reflect, Miss Baumgarten.
12 Gerry, I'm going to come out in about ten
13 minutes. Be prepared. I'll send you on a mission
14 to get Mr. Nycel, but I want to give Mr. Buczek an
15 opportunity to give me any questions he wants asked
16 in the opening round of questions. And
17 Miss Baumgarten, if you have any questions, you
18 might as well write them out as well. Thank you
19 very much. We'll see you in about ten minutes.
20 (Short recess was taken.)
22 THE COURT: Okay. Are there any questions
23 from the government that you want me to propound to
24 Mr. Nycel?
25 MS. BAUMGARTEN: No, your Honor.

350
1 THE COURT: Okay. Gerry, if you would
2 bring Mr. Nycel in, please. And just have him go
3 to his juror seat, which is for juror number 5
4 please.
5 All right. Mr. Comerford, just so I know, you
6 and Mr. Buczek did get a copy of the article,
7 correct?
8 MR. COMERFORD: We have, your Honor.
9 THE COURT: From the Buffalo News.
10 MR. BUCZEK: This is the first I'm hearing
11 of any of this. Sorry. I just read it just now.
12 THE COURT: Okay. But you did get it,
13 right?
14 MR. BUCZEK: Yes.
15 THE COURT: Okay. And I'm going to give
16 you the original article too so you have that for
17 your files.
19 (Mr. Nycel entered the courtroom.)
20 THE COURT: Okay. Mr. Nycel, good
21 morning. How are you?
22 A JUROR: Good.
23 THE COURT: I'm going to ask you to stand
24 for just a minute. I want you to relax a little
25 bit. I'm going to be asking you some questions,

351
1 and I'm going to have you placed under oath too.
2 (Oath administered.)
3 THE COURT: Okay. And we're going to give
4 you a hand-held microphone, and just relax, and
5 we'll work through a couple of matters that I think
6 are important. Please have a seat. All right.
7 Are you doing okay?
8 A JUROR: Yes.
9 THE COURT: I'll just ask you to speak
10 into the microphone. As you know, there's an
11 ongoing trial in the case of United States versus
12 Shane Buczek, and you're juror number five in that
13 case, correct?
14 A JUROR: Correct.
15 THE COURT: And at the outset, we had jury
16 selection, and then we went from jury selection and
17 questioning to the selection of jurors, and then we
18 actually started the trial. And if you recall both
19 at the time that we conducted what I had explained
20 was the voir dire and you were a member of the
21 venire, all of the possible jurors were sworn to do
22 their duty basically, right?
23 A JUROR: Yes.
24 THE COURT: And then when the questioning
25 was complete by myself and the selections were made

352
1 by the lawyers, we started the jury trial, and I
2 explained to you and the others that the trial did
3 not officially start until all of the jurors took
4 an oath again to perform their duty in accordance
5 with the law. Do you remember that?
6 A JUROR: Yes.
7 THE COURT: A couple of things, I want to
8 start back with the jury selection process and
9 that's before we began the trial itself. One of
10 the questions that I asked to everybody was whether
11 or not they knew any individuals or had any
12 contacts with or business or personal interest or
13 business with the United States attorney's office
14 or with the defendant, or with standby counsel's
15 office. Do you recall those questions?
16 A JUROR: Yes, I do.
17 THE COURT: And my recollection is that
18 you didn't say anything about anyone that you may
19 have known with any of those offices or that had
20 any contact or relationship with the defendant, is
21 that correct?
22 A JUROR: Yes, it is.
23 THE COURT: Okay. Do you know the name
24 Carol Steinbruckner?
25 A JUROR: Yes, I do.

353
1 THE COURT: And how do you know her?
2 A JUROR: My mother's cousin.
3 THE COURT: Okay. And so, to some extent
4 there's a relationship there, right?
5 A JUROR: Yes.
6 THE COURT: And my understanding is that
7 you didn't mention her name in connection with the
8 question or questions that I asked about knowing
9 anybody in any one of the offices that might be
10 related to this case, correct?
12 THE COURT: And did your relationship with
13 her come to mind when I asked you those questions?
14 A JUROR: It did not.
15 THE COURT: Okay. And was -- did you
16 think through the question that I asked you about
17 whether or not you had a relationship, business or
18 personal, with anybody that might be working with
19 or formerly worked with any of the offices that are
20 involved in this case?
21 A JUROR: Yes, I did.
22 THE COURT: Her name just didn't come to
23 mind, is that --
24 A JUROR: No, it did not.
25 THE COURT: You know where I'm going with

354
1 this, right?
2 A JUROR: Yes. Yes.
3 THE COURT: Moving from there to the start
4 of the jury trial, and I think you realize that
5 what I'm trying to do is ensure that both sides get
6 the benefit of everybody being as fair and open as
7 possible, right?
8 A JUROR: Correct.
9 THE COURT: And I repeatedly said not one
10 side is to be favored over the other, that whatever
11 decisions are to be made in the case, they are to
12 be made without bias and without sympathy, and with
13 an open mind, okay?
14 A JUROR: Yes.
15 THE COURT: And you recall that, right?
16 A JUROR: Yes.
17 THE COURT: All right. And, of course,
18 you probably remember -- and if you don't, let me
19 know -- that I stated a number of times that the
20 case itself was not to be prejudged, right?
21 A JUROR: Yes.
22 THE COURT: In other words, keep your mind
23 open -- and I told that to all of the jurors --
24 until all of the evidence is in, correct?
355
1 THE COURT: All right. And I asked all of
2 the jurors, including yourself, not to talk about
3 the case, right?
4 A JUROR: Yes.
5 THE COURT: All right. And I also asked
6 all of you if there was to be any newspaper article
7 or any account of this trial or any information
8 that was similar to what's going on in this case in
9 the electronic media, to put that all aside. Don't
10 get involved with reading newspaper articles.
11 Don't listen to media accounts or watch media
12 accounts. Don't go to the Internet. Don't do
13 independent investigation, right?
15 THE COURT: And in that regard let me
16 start first with the fact that there is a newspaper
17 article today in the Buffalo News, and I believe
18 you came in with a newspaper, right?
19 A JUROR: They cut it out downstairs.
20 THE COURT: And you probably thought that
21 Gerry wanted your newspaper and didn't want to
22 spend the 75 cents to get it, right?
23 A JUROR: It's a possibility.
24 THE COURT: But there was an article in
25 there, and it related to this particular case. You

356
1 understand that?
2 A JUROR: Yes.
3 THE COURT: Did you read that article?
4 A JUROR: I did not.
5 THE COURT: Did you see the article?
7 THE COURT: Okay. And did you discuss
8 that article with anybody?
10 THE COURT: Okay. When is first time that
11 you learned that there was an article in the
12 newspaper?
13 A JUROR: When he was cutting it out of
14 the paper this morning.
15 THE COURT: Okay. And have you had any
16 contact with the jurors this morning?
17 A JUROR: I have not.
18 THE COURT: All right. Since you left the
19 courtroom yesterday just after 5:00 p.m, have you
20 had any contact with any of your fellow jurors?
21 A JUROR: I have not.
22 THE COURT: Or the alternates?
23 A JUROR: No.
24 THE COURT: All right. During the course
25 of the trial at any time have you had conversations

357
1 with any of the jurors or your alternates with
2 respect to your thoughts or your impression or your
3 thinking process involving what was going on in the
4 trial?
5 A JUROR: Not really.
6 THE COURT: Okay. Were you following the
7 instructions that I gave you?
8 A JUROR: Trying to.
9 THE COURT: Okay. And you know that I
10 said it would be improper to discuss the case,
11 because jury deliberations at that point in time is
12 when the case should be discussed. I mean,
13 obviously when you're experiencing day-to-day
14 what's going on in the courtroom there probably is
15 tangential or collateral discussion, but in terms
16 of discussing impressions and resolving facts that
17 relate to the issues of the case, that would
18 normally be expected to be a part of jury
19 deliberations where you get everybody's input into
20 the mix, have you done any of that?
21 A JUROR: No.
22 THE COURT: Okay. Have any of the other
23 jurors had conversations with you or the alternates
24 to influence you in your thinking --
25 A JUROR: Not at all.

358
1 THE COURT: -- with respect to the outcome
2 of the case?
3 A JUROR: No.
4 THE COURT: And you've been, to the best
5 of your ability, following my instructions to keep
6 your mind open as far as this case until all of the
7 evidence is finally in?
8 A JUROR: Yes.
9 THE COURT: Okay. Over the last couple of
10 days have you had conversations about the case with
11 anyone?
12 A JUROR: Nothing specific other than I'm
13 on jury duty.
14 THE COURT: Okay. Let me get more
15 specific, how about with your mother?
16 A JUROR: Again nothing specific other
17 than the conversation she had with Carol yesterday.
18 THE COURT: Okay. Well, tell me what you
19 told your mom.
20 A JUROR: Well, she questioned me as far
21 as who the case was about, and I just replied that
22 it was about the defendant and that was pretty much
23 the extent of the conversation we had.
24 THE COURT: When did that come up,
25 Mr. Nycel?
359
1 A JUROR: 9:00 o'clock or so last night,
2 give or take.
3 THE COURT: Okay. And so you told her
4 what as far as the case was concerned?
5 A JUROR: Just the name of the defendant
6 basically. Other than that we really didn't
7 discuss anything.
8 THE COURT: Okay. Do you know what your
9 mother did with that information by any chance?
10 A JUROR: I believe she talked to her
11 cousin about it.
12 THE COURT: Who is that?
13 MS. BAUMGARTEN: Carol Steinbruckner.
14 THE COURT: You know her, right?
15 A JUROR: Yes.
16 THE COURT: And after she spoke with Carol
17 Steinbruckner, what happened?
18 A JUROR: She had me speak to Carol, and
19 she basically asked me the same question my mom
20 asked, if it was that case with the defendant in
21 mind, and I told her it was.
22 THE COURT: Okay. Let me ask you this. I
23 mean, how did you learn that your mother was going
24 to call Carol?
25 A JUROR: She just mentioned it to me when

360
1 she got home last night and called me downstairs,
2 and she must have talked to Carol prior to me
3 talking to her, prior to me even talking to my
4 mother about it, other than my mom knowing that I
5 was in federal grand jury or federal jury duty.
6 THE COURT: All right. So there was an
7 earlier conversation between Carol and your mom, is
8 that about right?
9 A JUROR: I believe so, yes.
10 THE COURT: Okay. And then some time
11 around 9:00 o'clock that evening you spoke with
12 Carol?
13 A JUROR: Yes.
14 THE COURT: Okay. And did you initiate
15 the call, or how did that take place?
16 A JUROR: I believe my mother called her.
17 THE COURT: Okay. Did you know your
18 mother was going to call Carol?
20 THE COURT: All right. Do you know
21 what -- what it was that caused your mom to call
22 Carol?
23 A JUROR: I have no idea.
24 THE COURT: Did you know that Carol -- did
25 your mom tell you she was going to call Carol?

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1 A JUROR: No.
2 THE COURT: Did you know that Carol was a
3 former employee, in fact relatively recently was an
4 administrative person within the federal public
5 defender's office?
6 A JUROR: I realized she worked in the
7 court system. To what extent I really didn't know.
8 THE COURT: Okay. Getting back to around
9 9:00 o'clock last night, your mom then gave you the
10 phone after she had made contact with Carol, is
11 that correct?
12 A JUROR: Right.
13 THE COURT: Tell us all what the
14 conversation was, but be as specific as you can,
15 because, you know, everybody has to know so they
16 can make decisions as to whether or not you stay as
17 a juror or not.
18 A JUROR: She just questioned me as far as
19 who was involved as far as the attorney,
20 prosecuting attorney and the judge and --
21 THE COURT: How did it go? Tell me, you
22 said hello, Carol, or something like that?
23 A JUROR: Basically I'm going down there
24 in a couple weeks, and was wondering how close they
25 are to where I'm going. And again the defendant's

362
1 name came up, if this was a case that I was sitting
2 on. I said yes, and she questioned me as far as
3 the attorneys that were involved, and that was
4 pretty much the extent of the conversation.
5 THE COURT: What did she say to you, did
6 she say she knew the case?
7 A JUROR: Yes.
8 THE COURT: Did she say she knew the
9 attorneys involved?
10 A JUROR: Yes.
11 THE COURT: Did she say she knew
12 Mr. Buczek?
13 A JUROR: I don't know. Not personally,
14 but she knew of him through the case.
15 THE COURT: All right. Did she make any
16 comments about any of the attorneys?
17 A JUROR: No.
18 THE COURT: Did she tell you who was good,
19 who wasn't good?
20 A JUROR: No.
21 THE COURT: Who was bad, who was worse?
22 A JUROR: No.
23 THE COURT: Okay. Did she given you any
24 impressions or views or information about
25 Mr. Buczek?
363
1 A JUROR: No.
2 THE COURT: Did she comment about any
3 experiences that she may have had when she was with
4 the federal public defender's office that involved
5 Mr. Buczek?
6 A JUROR: None other than she had worked
7 on the case with -- with the prosecutors at some
8 point.
9 THE COURT: How specific was she about the
10 information she gave you?
11 A JUROR: Basically what I just told you.
12 There was no specific information about anything
13 other than she worked on the case.
14 THE COURT: Okay. And did you ask her
15 what she did?
16 A JUROR: No, I did not.
17 THE COURT: Did you ask her anything at
18 all?
20 THE COURT: Did you tell her that I had
21 instructed you not to discuss the case with
22 anybody?
24 THE COURT: Were you uncomfortable at all
25 in that conversation?
364
1 A JUROR: No.
2 THE COURT: Why?
3 A JUROR: Why? Nothing was revealed or I
4 didn't go against any of your instructions with
5 talking to her as far as details or specifics on
6 anything with the case, so --
7 THE COURT: Okay. So, what you are
8 telling me, and correct me if I'm wrong on this,
9 okay, you're saying that in your eyes you really
10 have not violated my instructions by speaking about
11 this case because it didn't really amount to
12 discussing anything other than acknowledging which
13 case it was that you were serving as a juror on?
15 THE COURT: Okay. Have you formed any
16 conclusions about this case that are in favor of or
17 against the government?
18 A JUROR: Not at this point, no.
19 THE COURT: Have you formed any
20 conclusions about this case that, from your mindset
21 standpoint, causes you to be in favor or against
22 the defendant in this case?
23 A JUROR: No.
24 THE COURT: Was there any discussion at
25 all with Carol about your views on how Mr. Buczek

365
1 was proceeding, that is what we call pro se without
2 having a lawyer firsthand conduct his defense?
3 A JUROR: I did say that I didn't think it
4 was the brightest move in the world for him to be
5 doing it that way.
6 THE COURT: Okay. And when you say it
7 wasn't the brightest move in the world for him to
8 do it that way, what do you mean by that?
9 THE WITNESS: Well, she asked me about the
10 attorneys for the prosecutor, and once I answered
11 her questions like that, I just mentioned he was
12 representing himself. I didn't think that was --
13 that was the best move, but that's to be determined
14 still at this point.
15 THE COURT: All right. The fact that it's
16 not the best move, does that cause you to be
17 inclined one way or another for or against the
18 defendant?
19 A JUROR: No.
20 THE COURT: For or against the government?
21 A JUROR: No.
22 THE COURT: You said that Carol I believe
23 knew both the prosecutors, correct?
24 A JUROR: Yes.
25 THE COURT: Did she comment with respect

366
1 to them and their abilities as opposed to the
2 defendant going it alone with standby counsel?
3 A JUROR: No.
4 THE COURT: Did she agree with you that it
5 wasn't the best move for Mr. Buczek to proceed pro
6 se?
7 A JUROR: She made no comment either way.
8 THE COURT: Okay. As you sit there now,
9 do you have an opinion that would affect the
10 outcome of this case based on Mr. Buczek's decision
11 to go pro se and not have Mr. Comerford conduct the
12 full defense for him?
13 A JUROR: I don't believe so.
14 THE COURT: Okay. As you sit there right
15 now, you know, and this gets kind of dicey, a
16 little bit sensitive, because obviously I'm going
17 one-on-one with you here. Are you still inclined
18 to finish your duty as a juror in this case?
19 A JUROR: If you feel I'm capable of doing
20 it, yes.
21 THE COURT: Okay. The fact that I'm
22 grilling you a little bit, does that give you any
23 discomfort with respect to me or the attorneys?
24 A JUROR: Not at all.
25 THE COURT: You understand that basically

367
1 that's my job. I mean --
2 A JUROR: I understand. Honestly, if I
3 had realized the capacity she worked here, I would
4 have used it to get out of jury duty, quite
5 honestly at that time, just so I could get back to
6 work.
7 THE COURT: Are you trying to get out of
8 jury duty now?
9 A JUROR: Oh, no. No. Like I said, if I
10 had the opportunity I would have already used it.
11 THE COURT: All right. And my question I
12 guess to you at this point is you know that
13 everybody here -- this is open court, and --
14 A JUROR: Yes.
15 THE COURT: And they all know your answers
16 to my questions. And so you're going to be here if
17 the decision is made to continue you as a juror for
18 the rest of the jury trial, whatever time that
19 takes.
20 A JUROR: Yes.
21 THE COURT: Can you still be, at least in
22 your mind, unaffected -- I mean, obviously this is
23 part of your life experience what we're going
24 through right now. But can you still fulfill that
25 juror oath that you took to work towards reaching a

368
1 conclusion in the case, a unanimous verdict, in a
2 way that's fair and impartial to both sides without
3 being affected by what we're just going through
4 right now?
5 A JUROR: I believe so.
6 THE COURT: Okay. Tough skin pretty much?
7 A JUROR: Today was just his defense of
8 the situation, so whatever opportunity he had to
9 speak for himself today, so that was -- I wasn't
10 going to form an opinion until after the process is
11 done with him today.
12 THE COURT: Okay. Has anything affected
13 you, either negatively or positively, so far that
14 causes you to think that you don't want to be
15 involved in the final decision in this case?
16 A JUROR: No.
17 THE COURT: Okay. What I'm going to do is
18 meet with everybody at our side bar. Okay. Well,
19 actually you know what I'm going to do, if you
20 don't mind, I'm going to have you go out with Gerry
21 out into the corridor there, and I'm going to talk
22 to the attorneys. Thank you. It makes it a little
23 bit easier for us. I'll see if they have anything
24 else they want me to ask you, but thank you. I
25 appreciate it. Thank you.

369
1 (Juror left the courtroom.)
2 THE COURT: Okay. Miss Baumgarten, is
3 there anything else you would like me to ask?
5 THE COURT: Mr. Buczek?
6 MR. BUCZEK: Yeah, Judge. There -- the
7 comment regarding things -- let Brian take care of
8 that.
9 MR. COMERFORD: Judge, we'd ask that you
10 question Mr. Nycel whether he commented to Carol
11 Steinbruckner regarding any things that he or the
12 other jurors had heard Mr. Buczek say outside the
13 courtroom, possibly while talking on his phone. We
14 would want to know if he may have called him any
15 names while talking to Miss Steinbruckner. One
16 thing he said I thought was a little strange, when
17 you asked if he discussed the case with the other
18 jurors his response -- or discussed the case or
19 Mr. Buczek with other jurors, I believe his
20 response was not really. Everything else he
21 responded no to.
22 THE COURT: Yeah, I know.
23 MR. COMERFORD: Maybe that's not a
24 problem, but the other two we would definitely like
25 asked.
370
1 THE COURT: Okay. The first one was any
2 comments --
3 MR. COMERFORD: Any comments about
4 something Mr. Buczek said while he was talking
5 outside the courtroom on his phone, if he or the
6 other jurors were talking about that, if that was
7 conveyed to Miss Steinbruckner, and the second is
8 whether -- if there's a polite way to ask whether
9 he called him any names. I don't want to
10 intimidate him too much. I think this has been
11 fairly intimidating for him already.
12 THE COURT: Okay. All right.
13 MS. BAUMGARTEN: Your Honor, do we have
14 some idea of what actually was said that would
15 prompt those questions? Is there some information
16 that was --
17 MR. COMERFORD: I think what I heard is
18 that he called Mr. Buczek an idiot when he talked
19 to Carol, and that he or other jurors -- I don't
20 know who -- overheard Mr. Buczek talking on his
21 phone outside the courtroom saying something to the
22 effect of, you know, I think I can -- I don't know
23 how it was put, but basically I think I can get a
24 good result out of this. I don't know if it was I
25 can beat this, I can do something along those

371
1 lines, but something like that.
2 THE COURT: Is there a phone outside the
3 courtroom?
4 MR. COMERFORD: No, Mr. Buczek would have
5 been talking on his cell downstairs outside the
6 elevators. I don't know the details, Judge. I
7 just know that these are two subjects that were
8 conveyed to me that I thought Mr. Nycel talked to
9 Carol Steinbruckner about. I don't know how well
10 she would know about these things if he didn't tell
11 her.
12 THE COURT: Okay. I will do that, and --
13 MR. COMERFORD: Thank you.
14 THE COURT: -- and I'll bring Mr. Nycel in
15 right now.
16 Miss Mariano, anything that in your mind should
17 be queried about before I bring Mr. Nycel in?
18 MS. MARIANO: Just what Mr. Comerford has
19 brought to the Court's attention.
20 THE COURT: Okay. Thank you. Tom, can
21 you do me a favor, can you alert Gerry to bring
22 Mr. Nycel back?
23 Please, Gerry.
24 (Juror entered the courtroom.)
25 THE COURT: Okay. Mr. Nycel, you still

372
1 are under oath, but I do have a few other questions
2 that I would like to run through with you if I may.
3 And thank you very much for cooperating with us.
4 How close is your relationship with Carol
5 Steinbruckner?
6 A JUROR: Closer when we were younger. I
7 maybe see her once or twice a year now.
8 THE COURT: Okay. And do you talk to her
9 on the phone at all?
10 A JUROR: No.
11 THE COURT: All right. So, this was out
12 of the norm to be put in touch with her
13 telephonically?
14 A JUROR: Yes.
15 THE COURT: All right. You don't initiate
16 calls on your own with her?
17 A JUROR: No.
18 THE COURT: And has she initiated calls on
19 her own with you?
20 A JUROR: No.
21 THE COURT: All right. If I remember
22 correctly from one of the answers you gave me, you
23 talked about saying you didn't think it was a smart
24 move, so to speak, for Mr. Buczek to represent
25 himself, or words to that affect, right?

373
1 A JUROR: Yes.
2 THE COURT: Okay. And that's an opinion
3 that you formed in the course of this trial?
4 A JUROR: Correct.
5 THE COURT: All right. Did you
6 communicate that view to Carol Steinbruckner?
7 A JUROR: Yes.
8 THE COURT: Okay. Did you communicate
9 that view to the other jurors?
10 A JUROR: No.
11 THE COURT: You didn't communicate that
12 view since yesterday to any of the jurors?
13 A JUROR: No.
14 THE COURT: All right. Before the
15 conversation with Carol Steinbruckner, did you
16 communicate those views to any of the jurors in any
17 of the conversations?
18 A JUROR: No.
19 THE COURT: When I asked you about the
20 fact that whether or not you had any discussions
21 with the other jurors during the course of the
22 trial, you said no, not really, or words to that
23 affect. What does that really mean?
24 A JUROR: I mean general comments are made
25 about things that come up during the course of the

374
1 proceedings. But no specifics were ever discussed
2 about anything really.
3 THE COURT: Okay. And meaning, among
4 other things, that I mean it's hard not to say that
5 it was a long day in court, or I'm glad we took a
6 break when we did, or that witness seemed wired, or
7 tired, or whatever, things like that?
8 A JUROR: For the most part, yes.
9 THE COURT: Okay. Anything more specific
10 than that?
11 A JUROR: Not really that I can recall.
12 THE COURT: Okay. Were there any comments
13 made with respect to Mr. Buczek by any jurors or
14 yourself relating to any telephone conversations
15 involving him that may have been overheard or seen
16 during the course of the trial?
17 A JUROR: Not that I recall.
18 THE COURT: Okay. Could there have been
19 some?
20 A JUROR: It's possible.
21 THE COURT: Okay. I mean, well lets --
22 lets get a little bit more specific than that.
23 There are no telephones that I know of where an
24 individual involved with the trial would have
25 access to on the fifth floor. But, in the main

375
1 lobby there's still the ability in this courthouse
2 to make a cell phone call. Have you seen
3 Mr. Buczek making any telephone calls in the
4 building?
5 A JUROR: He was out in front of the
6 elevators and we seen him yesterday, but I don't
7 really recall that he was on the phone at all.
8 THE COURT: How about in the lobby
9 downstairs?
10 A JUROR: I don't remember ever seeing him
11 in the lobby downstairs.
12 THE COURT: Move the microphone towards
13 you a little bit.
14 A JUROR: I don't recall seeing him in the
15 lobby downstairs over the last few days.
16 THE COURT: Did anybody, after seeing
17 Mr. Buczek outside the elevators or in the lobby
18 downstairs make any comments about them?
19 A JUROR: Not really.
20 THE COURT: You heard none?
21 A JUROR: There's just general comments
22 about the situation, and as I say no specifics has
23 been discussed about the case. It's --
24 THE COURT: No comments more specific than
25 not really that you can tell us about that you may
376
1 have heard or discussed?
2 A JUROR: Nothing that I heard personally,
3 no.
4 THE COURT: Okay. Did you hear anybody
5 call Mr. Buczek a name or names?
6 A JUROR: No.
7 THE COURT: All right. Did you ever hear
8 him referred to as stupid?
9 A JUROR: No.
10 THE COURT: Intelligent?
11 A JUROR: No.
12 THE COURT: An idiot?
13 A JUROR: No.
14 THE COURT: Did you ever call him any of
15 those names?
16 A JUROR: No.
17 THE COURT: Did you ever refer to him as
18 an idiot?
19 A JUROR: No.
20 THE COURT: Stupid?
21 A JUROR: No.
22 THE COURT: Intelligent?
23 A JUROR: No.
24 THE COURT: Different?
25 A JUROR: No. Can I clear up what my

377
1 opinion was as far as my comment a little bit?
2 THE COURT: Sure.
3 A JUROR: I'm a plumber. I know a little
4 bit of electricity. I don't think it's the wisest
5 thing in the world for me to go and wire somebody's
6 house. I just think other people are more adept
7 and better prepared to do something like that. I
8 stick with my trade and my field, and that was the
9 reasoning I had behind having my opinion of him
10 defending himself. You're going against some
11 obviously very well-educated people who are in the
12 top of the profession working here, and you put
13 yourself at a disadvantage, just as I put myself at
14 risk for starting a house on fire if I were to wire
15 something. It might not necessarily happen, it
16 might work okay, but there's more potential for
17 problems if I do it compared to someone that's
18 licensed to do it does.
19 THE COURT: I won't ask you whether you've
20 done it, but in any event that exposure is there,
21 right?
22 A JUROR: Yes.
23 THE COURT: I mean, that's an ordinary
24 facet of life, fair statement?
25 A JUROR: Yes.
378
1 THE COURT: Let me ask you this. If
2 someone were to call Mr. Buczek stupid or if
3 someone were to refer to the prosecutors as unfair
4 or something akin to that, is that a statement of
5 that juror that you believe would -- would
6 influence the ability to be fair and impartial in
7 coming to a verdict?
8 A JUROR: I, myself, no, I have my own
9 opinion about the situation. I don't believe it
10 would be my job or responsibility to defend or to
11 be encouraged one way or another at this point.
12 THE COURT: Okay. And once again, at
13 least from your standpoint there is nothing that
14 has transpired up to this point in time that would
15 cause you to be biased or prejudiced in any way
16 against or for one side or the other?
17 A JUROR: I don't believe so.
18 THE COURT: Okay. I think that's all I'm
19 going to need to talk with you about right now. If
20 you could go back to the larger jury assembly room,
21 and thank you very much, I really appreciate it.
22 Hold on one second.
23 MS. BAUMGARTEN: There will be an
24 instruction not to discuss this with the other
25 jurors if he's going to the jury room?

379
1 THE COURT: He's not going to the jury
2 room. Don't discuss this anyway -- it's a good
3 point -- Mr. Nycel, and I am going to have to talk
4 to the other jurors about the newspaper article and
5 few others things, so it will be a little while
6 before we get back to you, okay?
7 A JUROR: Okay.
8 THE COURT: Thank you very much.
9 (Juror excused from the courtroom.)
10 MR. BRUCE: You know, Judge, it was two,
11 three years we did the Peters case, and I haven't
12 been back. We had a juror problem in the Peters
13 case. Maybe you should just throw me out of here.
14 MR. COMERFORD: We're okay with that,
15 Judge.
16 THE COURT: In fact, I think it's
17 unanimous. Is there anybody that opposes that
18 motion?
19 MS. BAUMGARTEN: Mr. Musitano is not here.
20 THE COURT: All right.
21 MR. BRUCE: I feel like a bad penny.
22 THE COURT: It came to mind. Actually we
23 talked about it, because these experiences, it's
24 not unique to you, Mr. Buczek, they come up where
25 somehow for some reason despite all of the

380
1 cautionary things that are done, you still wind up
2 with some possible juror issue or problem. It
3 takes a while to address it, but we're trying to
4 get down to making sure that you get a fair trial
5 and the government gets a fair trial, you
6 understand?
7 MR. BUCZEK: Judge, I'm used to this. I
8 get called names every day based on my belief
9 system, so that doesn't affect me at all.
10 THE COURT: Okay. The thing is, if it did
11 affect the mindset of one juror or more than one
12 juror, that's the difference, okay. I mean, it may
13 roll off your back, shouldn't be done anyway, but
14 if it does roll off your back, that's fine from
15 your standpoint, but it's not fine in a jury
16 context, do you understand?
17 MR. BUCZEK: Oh, yeah.
18 THE COURT: All right. Miss Baumgarten,
19 what do you want to do?
20 MS. BAUMGARTEN: Your Honor, I think the
21 Court has thoroughly examined the juror. I think
22 he's done his best effort to understand the
23 situation and has promised at this point that it
24 will not -- warranted on the record that it will
25 not affect his ability to act and serve fairly as a

381
1 juror and to follow your instructions in the
2 future. He clearly didn't understand that that
3 limited contact that he said he had violated any
4 instructions. I think at this point the Court has
5 done all that it can to continue to get his
6 commitment to do what he needs to do to serve, so I
7 think needs to stay at this point.
8 THE COURT: Mr. Buczek.
9 MR. BUCZEK: Judge, I just reconsidered
10 and evaluated everything that took place here, and
11 my belief I don't think he's following the
12 instructions that you've given out. And I believe
13 that happened back on -- was it Tuesday? Tuesday.
14 Tuesday. So, I'm going to go ahead and ask you to
15 remove him.
16 THE COURT: Okay. All right. I will
17 consider both requests, and I will make a decision
18 on that. I want to bring the full jury in, and I
19 do want to ask everybody about two things and
20 that's whether they've been exposed to the article,
21 and read it or discussed it, and whether they've
22 had any discussions relative to the case with any
23 of the jurors. That if anybody has discussed the
24 case with any of the jurors, without necessarily
25 singling out Mr. Nycel, does that work from for the
382
1 government's standpoint?
2 MS. BAUMGARTEN: Your Honor, I understand
3 the Court's inquiry with respect to the first
4 issue. As to the second issue, I don't believe
5 that we have any information before the Court that
6 would indicate that any of the jurors, including
7 the information imparted through the conversation
8 reported by the federal public defender's office,
9 that any of the jurors have spoken amongst
10 themselves. It's isolated between, as I understand
11 it, juror number five and an outside source. I
12 think we risk highlighting an issue bringing it to
13 the fore that hasn't properly arisen yet.
14 THE COURT: I think the question is a fair
15 question in terms of have any of you had
16 discussions with anybody relative to this case,
17 including yourselves. You don't want that asked?
18 MS. BAUMGARTEN: I think if the Court has
19 Mr. Nycel present I think he would have to then
20 raise all that the Court has addressed with him
21 outside the presence of the other jurors.
22 MR. COMERFORD: The Court could say that
23 I'm not aware of.
24 THE COURT: Well, one of the things I
25 would have to do if Mr. Nycel stays is instruct

383
1 Mr. Nycel that he not discuss the proceedings here,
2 and to make sure that if there's any reaction to
3 his not discussing things that that get
4 communicated back to the Court, so that we can then
5 decide if that has any influence on the mindset of
6 the other jurors, because it is conceivable that he
7 could be alienated from the jury body by virtue of
8 being the cause, really, for this delay of sort.
9 So I want to make sure that we handle that
10 properly.
11 MR. COMERFORD: Judge, we wanted to add
12 one quick thing about Mr. Nycel's comments. They
13 weren't consistent with our understanding of what
14 that conversation was. I don't know why that is.
15 THE COURT: All right. You know, in
16 reflecting on it, I think I will excuse Mr. Nycel,
17 and I will replace him with alternate number one,
18 and that's Ann Sorrento.
19 Okay. Let's bring -- let's bring the jury in.
20 We'll leave open seat number five, and I will tell
21 the jury that we are moving Ann Sorrento up. I
22 will first talk to them about reading the newspaper
23 article, and see if there's any difficulty
24 associated with the article. Then we'll move up
25 Ann Sorrento to seat number five replacing Brian

384
1 Nycel without explanation, and if nothing -- no
2 information comes to light about any undue
3 influence of the article, we'll take a 10- or
4 15-minute break, bring them back probably about
5 10:45 for the start of trial, and that will give me
6 a chance also to discharge Mr. Nycel from service.
7 MR. BRUCE: Judge, I would suggest you
8 give them a longer break, because Mr. Buczek has a
9 bunch of witnesses in the hallway. I've briefly
10 interviewed all of them, and with one very minor
11 exception, none of them know anything about this
12 case. I ask the Court to require him to make a
13 proffer. I would like to go through that before he
14 starts his case, before he makes his opening
15 statement. I think the -- we've done a motion in
16 limine. I think the Court, from the proceedings
17 that have occurred here, has been alerted where
18 Mr. Buczek might want to go. I think the Court's
19 fully aware that the government thinks that he
20 can't go there. So I think we have to deal with
21 those.
22 THE COURT: Okay. I wasn't aware of that.
23 Okay. I'll do that. Yeah, Mr. Buczek?
24 MR. BUCZEK: Judge, I have four
25 eyewitnesses, and to be very brief, and it does

385
1 have everything to do with the case.
2 THE COURT: I'll hear you out. Let me get
3 through the issue with respect to any unfair bias
4 or prejudice, and we'll go forward.
5 Miss Mariano, thank you for your efforts in
6 this regard. We're not quite there yet, but I
7 appreciate the fact that you came to the assistance
8 here this morning.
9 Tom, can I get the full jury in, please, but
10 leave Mr. Nycel in the jury assembly room, okay?
11 (Jury seated.)
12 THE COURT: Where have you been, ladies
13 and gentlemen? I've been waiting here. What time
14 did I tell you to get here?
15 THE JURY: 9:00 o'clock.
16 THE COURT: Darryl, what's with this jury?
17 Good morning.
18 THE JURY: Good morning.
19 THE COURT: A couple matters that we have
20 to talk about, and it's going to be before we can
21 resume the case, so you're going to get another
22 break. I'm sorry to keep you delayed, but two
23 things. Mr. Nycel is not going to be able to
24 continue with the case. He's, as you probably
25 know, juror number five. So we're going to move

386
1 you, Miss Sorrento, up into that seat, so you
2 become our fifth juror or juror number five, and,
3 Miss Alexander, you become alternate number one.
4 All right. So thank you. We really appreciate
5 that. Sorry for the inconvenience in that respect.
6 But, that's what we will really have to do, and
7 that's the purpose of all those utility alternates,
8 in case we have a juror that can't complete jury
9 service. So, with that accomplished, this will be
10 the jury that will decide the case and hopefully we
11 don't have to replace anybody else.
12 But let me ask you this, as you probably know,
13 I think some of you are Buffalo News carrying
14 jurors, and if you did have a newspaper this
15 morning, the court security officers did take out
16 one of the pages and we don't reimburse you for
17 that page, but that page did contain an article
18 relating to what we talked about last night, and it
19 did relate to the case. And as sometimes typically
20 happens, the information in there was not, at least
21 arguably, anything you may have heard or known
22 about from being a juror and listening to the
23 witnesses and seeing the exhibits and the evidence.
24 So, that was the reason why that article was taken.
25 Did anybody see that article before you came to

387
1 the courthouse today? No.
2 Did anybody read the article? Did anybody have
3 discussions about the article? The fact that the
4 article was in the newspaper, does that cause
5 anybody difficulty in terms of, one, your ability
6 to keep from reading the article or to still be of
7 the mindset where you're open, fair, and impartial
8 in this particular case? Anybody have
9 difficulty -- anybody feel different today than you
10 did yesterday? The world's worse question, right?
11 Mr. Bridges, pretty confident guy taking me on this
12 early in the case. That's probably because I
13 commented about you the other day. You're trying
14 to walk out as a baby sitter. But, all right.
15 This is an important case, and I think you realize
16 that. And, you know, it's an important case to
17 both sides. And my instructions are intended all
18 the time to reinforce that with you, because that's
19 in the very best interests of both the government
20 and an individual defendant in every criminal case,
21 criminal cases, civil cases, very, very serious.
22 And, you know, you never want anybody to lose sight
23 of that, so, regardless of how you felt yesterday
24 or today, Mr. Bridges, is everybody's mindset still
25 that you believe you can be fair and impartial to

388
1 both sides? Okay. And I expect to be taken to
2 task when I'm not good about something, so we're
3 going to designate Mr. Bridges to do that for all
4 of you. You just go to him, you tell him what your
5 comments are, and we'll go from there. All right.
6 Anything that has happened in this case as far as
7 you are concerned amongst yourselves, outside the
8 courtroom, inside the deliberation room, anything
9 at all that has had any effect on you other than
10 keeping your mind open and fair and impartial in
11 getting to a unanimous verdict in this case?
12 Anything that you want to talk about or discuss?
13 Everybody is following my instructions to the best
14 of your abilities? Anybody that you know of that
15 has not to the best of your abilities? No. Okay.
16 All right. And, again, we appreciate the
17 commitment that you make here.
18 The matters that I'm going to be discussing now
19 are still continuing administrative matters with
20 the attorneys. And once I get them worked out,
21 we'll be able to get right back at you with a
22 continuing case. But I just need the time to work
23 these things out. Doesn't effect any one side more
24 than any other. It's nothing that is intended to
25 delay or to, you know, accomplish an improper

389
1 result, and it's just that I have to work through
2 what I -- sometimes it takes more time than is
3 reasonably expected, so I'll work through all that
4 stuff. I'll get back to you as soon as I can.
5 Hang in there for me. It's a great day to look out
6 the window in that deliberation room, right? So,
7 you know, I don't think I want to know why I got
8 that reaction, but all right. I think we're all
9 set. We'll resume as soon as we possibly can.
10 I'll bring you back. Hang in there for me, please.
11 I appreciate it. And thank you very much.
12 (Jury excused from the courtroom.)
13 THE COURT: Okay. Tom, once the jury is
14 back in their area, make sure that you bring
15 Mr. Nycel back here inconspicuously so he can leave
16 undetected, please.
17 COURT SECURITY OFFICER: Okay, sir.
18 THE COURT: Okay. While we're waiting for
19 Mr. Nycel to come back, there's a motion to carry
20 through with a proffer of proof with respect to
21 witnesses that may be called to testify by
22 Mr. Buczek. Is that a fair statement?
23 MR. BRUCE: Judge, yes. And if I can
24 comment at least to kind of open the proceedings
25 and let Mr. Buczek know where I am going. He has

390
1 in the hallway William Dihl, who -- D-I-H-L -- to
2 testify. He has in the hallway -- I thought I had
3 the other gentleman's name. Was it Mr. Karl?
4 MR. BUCZEK: Robert Karl.
5 MR. BRUCE: Okay. Mr. Karl to testify.
6 He has in the hallway his sister Amanda to testify,
7 and he has his brother whose first name escapes me,
8 but obviously his last name is Buczek to testify.
9 I have briefly interviewed with Mr. Falkowski in
10 some cases each of his witnesses to attempt to
11 determine what, if anything, they know about this
12 case.
13 Mr. Dihl -- and if I may approach, Judge, we
14 marked it as Government Exhibit 44, although we got
15 it from the defense.
16 THE COURT: Just tell me what you have
17 there and then we'll go from there.
18 MR. BRUCE: It's a letter that Mr. Dihl
19 tells me that AT&T sent to him telling him, in
20 essence, that after he had sent in one of these
21 bonded promissory notes or one of these other debt
22 instruments that Mr. Buczek has authored or put
23 together --
24 THE COURT: Hold on, please. Gerry, we can
25 keep Mr. Nycel right there.

391
1 Hey, Mr. Nycel, how are you?
2 A JUROR: Good.
3 THE COURT: Okay. Just so you know, what
4 we're going to do, you're going to be excused from
5 jury service.
6 A JUROR: Okay.
7 THE COURT: We all want to thank you for
8 making the commitment to the case that you did.
9 I'm sorry that we had to work through that session
10 this morning. But I think it's less of a problem
11 for everybody, and that should enable you to get
12 back to work if you're so inclined, and so, what
13 I'd ask you to do though is not discuss this with
14 anybody that has anything at all to do with this
15 particular case. I mean, we're working through it.
16 We're trying to conclude it. In particular don't
17 initiate any contact with the jurors.
18 A JUROR: No.
19 THE COURT: Stay away from relatives or,
20 you know, Carol, or anybody else with respect to
21 this experience, because we don't want it getting
22 back to your colleagues on the jury.
23 A JUROR: I understand. I would like to
24 apologize, particularly to the defendant. I
25 realize this has a major effect on his life, and

392
1 there's no malice or in intent in any way to cause
2 any problem with the court.
3 THE COURT: Apologies accepted. We
4 appreciate that very much. But what we don't want
5 to happen is, you know, for the jurors -- they
6 don't know that -- anything about why you were
7 excused. I didn't get into any issue with respect
8 to questions, just that you were unable to complete
9 service.
10 A JUROR: Okay.
11 THE COURT: I moved up the first alternate
12 to take your seat. So, just remain quiet about the
13 whole experience until after the case is complete.
14 A JUROR: Yes, sir.
15 THE COURT: If you get any inquiries from
16 any fellow members of the jury or anybody having to
17 do anything with this case, back off, don't talk
18 about it. Get in touch with the Court so I know,
19 but otherwise just stay clean, okay?
20 A JUROR: Yes, sir.
21 THE COURT: Okay. Have a good weekend.
22 Thank you very much. Be safe out there.
23 A JUROR: Thank you.
24 THE COURT: And avoid the media too in
25 case anybody questions you, please.

393
1 (Juror excused from the courtroom.)
2 MR. BRUCE: Continue, Judge?
3 THE COURT: Yes, please.
4 MR. BRUCE: According to Mr. Dihl, and as
5 I understand what Mr. Dihl will testify to is that
6 he sent one of these payment from his prepaid
7 treasury account to AT&T to pay a bill for $226.17.
8 AT&T sent him back a letter saying his account was
9 paid. For the life of me I can't figure out how
10 that's relevant to this case. AT&T is not a part
11 of this case. Mr. Dihl is not a part of this case,
12 the fact --
13 THE COURT: What did he use to pay AT&T
14 with?
15 MR. BRUCE: He used the prepaid treasury
16 account, that's the only relevance that I see.
17 He's going to come in here and authenticate a
18 letter from AT&T, that AT&T is not a part of this
19 case. So in that respect I submit that his
20 testimony with respect to the letter and the letter
21 itself is irrelevant to this case.
22 THE COURT: Well, accept Mr. Buczek knows
23 about it, and doesn't it relate to his state of
24 mind?
25 MR. BRUCE: Not with respect to Best Buy.

394
1 THE COURT: No, not with respect to Best
2 Buy, but with respect to payment being honored via
3 the treasury account.
4 MR. BRUCE: Well, the problem is, the --
5 the payment was made -- well, the letter from AT&T
6 is December 12th of 2009. Based on the way I
7 understand businesses working, the payment would
8 have been made shortly before that. The crime in
9 this case was started and completed well in advance
10 of Mr. Dihl sending whatever he sent to AT&T, so --
11 THE COURT: Okay. So then we go where?
12 MR. BRUCE: Well, Mr. Dihl, as I
13 understand it, knows about Mr. Buczek's beliefs,
14 and as I understand it is prepared to come in and
15 testify about Mr. Buczek's beliefs, and apparently
16 to testify about Mr. Buczek's state of mind.
17 First of all, anything with respect to
18 Mr. Buczek's beliefs that Mr. Dihl knows, he knows
19 as a result of statements made to him by Mr. Buczek
20 outside of court, which are obviously hearsay and
21 inadmissible under 802. Any statements that he
22 would make where he would say that oh, I don't
23 think Mr. Buczek formed the requisite state of
24 mind, I don't think Mr. Buczek acted willfully, I
25 don't think Mr. Buczek acted intentionally are,

395
1 first of all, opinions on the ultimate issue, and
2 under 701, they are impermissible opinion lay --
3 even though they're lay opinion testimony, they're
4 impermissible lay opinion testimony anyway. I
5 don't have any cases, because I didn't know this
6 before I came in, but I think that's fairly obvious
7 to the Court, or should be fairly obvious to the
8 Court.
9 So, I submit that -- and I don't understand
10 that Mr. Dihl is going to testify to anything else,
11 but my understanding is he wants to testify to both
12 of those things, or he's been subpoenaed here to
13 testify to both of those things. I submit he's
14 incompetent to testify on both levels, and I would
15 ask the Court preclude him.
16 I can do this one at a time or I can do this by
17 all four, Judge.
18 THE COURT: You want to comment?
19 MR. BUCZEK: Yes, sure, Judge. I do want
20 to let you know that Mr. Dihl flew in from
21 Philadelphia last night around 6:00 o'clock.
22 Before he entered the plane, he was surrounded by
23 three Secret Service. I'm not going to talk about
24 the names here, but we have the cards and phone
25 numbers. Three Secret Service asking him where he

396
1 was going, why are you going to Buffalo, and he
2 said he had family business, and he says we know
3 why you're going to Buffalo. He almost could not
4 get on the plane from Philadelphia to Buffalo last
5 night. I almost couldn't get him here. He told
6 me -- this is hearsay information -- because he
7 believes, I should say, that my cell phone is
8 tapped. It's been tapped for a long time. There's
9 been no court order to tap my cell phone, and every
10 time I move or do anything they know where I'm at
11 or where I'm going at every second. I don't know
12 how to prove this. I don't have the technology to
13 prove it. But I just want to put that on the
14 record, why would three Secret Service guys
15 surround the Philadelphia airport last night before
16 he got on a plane to come here? Why?
17 THE COURT: Well, let's find out, what do
18 you propose that he testify --
19 MR. BUCZEK: Judge, basically just to
20 authenticate a letter from AT&T. It wasn't a
21 promissory note. It's concerning the prepaid
22 treasury account, and his cell phone is working to
23 this day, and he was interviewed by the Secret
24 Service about this. They told him take your letter
25 off the Web site. He did, he complied. And he's

397
1 here today to testify state of mind, based on my --
2 right, under rule -- here it is right here, Judge.
3 Any conversations about my beliefs are admissible
4 under I believe it's 803(3), 803(3) to show my --
5 the state of mind -- to show my then existing state
6 of mind to the hearsay exception. I hope I said
7 that right.
8 THE COURT: I understand what you're
9 saying. But you are going to ask him, or at least
10 you plan to ask him about your conversations
11 relating to his knowledge of your state of mind,
12 your views?
13 MR. BUCZEK: I wanted to, and I wanted to
14 basically just to verify that this is his letter,
15 that's all.
16 THE COURT: Okay.
17 MR. BRUCE: Judge, 803(3) specifically
18 excludes evidence on beliefs.
19 THE COURT: Excludes what? That's the
20 state of mind exception to the hearsay rule.
21 MR. COMERFORD: Judge, it excludes beliefs
22 to prove the fact remembered or believed. So, my
23 understanding is that this witness --
24 THE COURT: It's fact related.
25 MR. COMERFORD: This witness couldn't come

398
1 in and say Shane believed X to prove X. But he
2 could come in to say Shane believed X to prove that
3 at that time Shane believed X, if that makes sense.
4 I don't know if it does.
5 THE COURT: Well, maybe, but you could say
6 it again.
7 MR. COMERFORD: If he comes in and
8 testifies that Shane believes, you know, to use our
9 newspaper article, money has no value, okay. If
10 this witness says that, it can't be used to prove
11 in fact that money has no value. But it could be
12 used to prove that Shane at that time thought money
13 had no value.
14 THE COURT: Sure, that's state of mind.
15 MR. COMERFORD: That's my understanding of
16 803.
17 THE COURT: I'm familiar with -- that's
18 the last portion --
19 MR. COMERFORD: Yes, Judge.
20 THE COURT: -- of that Section 803(3)
21 where it talks about fact to prove fact, so --
22 MR. BUCZEK: Judge, one more thing I want
23 to let you know. I'm very dedicated in bringing
24 people into court that directly affect this case.
25 Just to give you an idea, I haven't worked in two

399
1 years, as you know, because of this. It's been
2 very brutal on me. And I have nothing to do about
3 this article in the Buffalo News by the way. I
4 don't know where it popped up from. I would prefer
5 that not be in the Buffalo News at all, just so you
6 know how I feel about it. I spent -- actually
7 thank God for my parents. We came up -- I have the
8 receipt here -- of $828.12 to fly him in out of my
9 own pocket. This is vitally important -- due
10 process -- to have him here to just to say I
11 believe this might be true. I'm not saying this is
12 true. I'm not convincing anybody. It gets back to
13 state of mind, and back to 803(3) just to show
14 that -- the intent purposes.
15 THE COURT: Okay.
16 MR. BUCZEK: Hopefully I said that right.
17 THE COURT: You did. Okay. Let's go on
18 to the next witness.
19 MR. BRUCE: One more comment on Mr. Dihl.
20 Mr. Dihl indicates he's only known Mr. Buczek for
21 the last three months, so, I think that presents a
22 problem with then-existing state of mind, even if
23 the Court were to go there.
24 THE COURT: Well, the issue is whatever he
25 was told that leads him to an understanding of what

400
1 he believes the defendant's state of mind is, or
2 what his views or beliefs are.
3 MR. BRUCE: The second witness is
4 Mr. Karl, Mr. Rob Karl. Mr. Karl is a friend of
5 the defendant's. He's known the defendant he
6 indicates about nine months, again which well
7 post-dates the events that are before the Court.
8 Mr. Karl has indicated he knows absolutely nothing
9 about any of the events in this case. He is
10 prepared to testify that he knows what the
11 defendant's beliefs are. Again, I submit to the
12 Court under 701 it's lay opinion testimony
13 essentially on one of the ultimate issues in the
14 case, state of mind, and it can't come in. He
15 serves no other purpose in this case that I'm aware
16 of.
17 THE COURT: Let's find out from Mr.
18 Buczek. Is that simply it, Mr. Buczek, your state
19 of mind?
20 MR. BUCZEK: Judge, that is correct. One
21 thing I do want to add is that we have a law
22 study -- a study group. Some of them are from UB
23 and some people from the Amherst area. We get
24 together every couple weeks and we have a study
25 group, just like everybody -- it's this little

401
1 group. And we are -- we are -- we study the de
2 facto and de jure part of the -- side of the
3 government, the republic, and a whole bunch of
4 things. We might spend three, four hours on a
5 Friday night studying this, and he's my study
6 partner and it's extremely important to have him on
7 the stand.
8 THE COURT: Okay. Now the sister.
9 MR. BRUCE: The sister was present at the
10 point in time when the FBI searched the house.
11 Whether she has something to add, certainly she's
12 competent to testify there. I haven't gone into
13 any details about what she knows or doesn't know
14 about that. On the other hand, again, she is, as I
15 understand it, familiar with the defendant's
16 beliefs and is coming in here to testify about the
17 defendant's beliefs and the defendant's state of
18 mind, and for all of the reasons that I set forth
19 when I talked about Mr. Dihl, I submit any
20 testimony by her other than testimony specific to
21 the search is inadmissible.
22 The brother -- the defendant's brother -- maybe
23 Mr. Buczek can help us out with his first name.
24 MR. BUCZEK: It's Adam.
25 MR. BRUCE: The defendant's brother Adam

402
1 Buczek wasn't present -- I've gone through a
2 checklist with each of these witnesses, Judge. He
3 wasn't present when the account was opened. He
4 wasn't present when any of the purchases were made.
5 He wasn't present when any of the deliveries were
6 made to the house. He wasn't present when the FBI
7 searched the house. He wasn't present for any of
8 these things, as were none of the other witnesses
9 except for the sister on the search. Again, he has
10 knowledge of the defendant's beliefs, and it's my
11 understanding is here to testify about the
12 defendant's beliefs. Again, for all of the reasons
13 I indicated above, I don't believe he's competent
14 to testify at this trial.
15 THE COURT: All right. Mr. Buczek, on
16 your sister and brother.
17 MR. BUCZEK: Judge, the same -- the same
18 exception from before. It goes back to state of
19 mind, my belief system. They know how dedicated I
20 am, that I'm willing to lay my life on the line for
21 what I believe is true. And, you know, it's
22 fascinating that Mr. Bruce can say that they don't
23 have any firsthand knowledge or whatever, when the
24 government brought eyewitnesses, and they have no
25 idea what's going on. They're reading paperwork

403
1 that is hearsay information presenting it on a TV
2 screen, and he's talking about hearsay information.
3 Are you kidding me? That's all, Judge.
4 THE COURT: Okay. Your sister's not
5 intended to talk about the search or anything that
6 place on the premises?
7 MR. BUCZEK: Well, I didn't even think
8 about it. It never crossed my mind. I was
9 basically going to focus on the belief system and
10 the dedication and the work and, you know, I don't
11 get paid to research this stuff. This is a
12 personal thing to learn about -- I guess we can
13 call it my hobby I guess.
14 THE COURT: They're going to testify you
15 disagree with the law, or what the government says
16 is the law, right?
17 MR. BUCZEK: Well, there's two sides of
18 the government, the republic and de jure, de facto,
19 and basically we, the people, are the government.
20 That's basically how my belief system is, Judge.
21 THE COURT: Okay. I'll take a few minutes
22 and I'll let you know what I think about the
23 witnesses and whether you can call them, and that
24 has a bearing on your opening statement, okay?
25 MR. BUCZEK: Thank you.

404
4 THE COURT: Okay. Gentlemen and lady.
5 MR. BRUCE: Judge, while Mr. Buczek is
6 making his way back to his seat, he has yet another
7 witness whose name escapes me -- starts with a W --
8 is going to testify to the witness's beliefs and
9 how they coincide with the defendant's beliefs.
10 THE COURT: Let me just -- let's work with
11 the four that we have. All right. Here's my
12 ruling -- and we're reassembled in U.S.A. versus
13 Buczek. And with respect to Mr. Buczek's sister
14 Amanda and brother, Adam Buczek, over the
15 government's objection they will be allowed to
16 testify, and that's with respect to their knowledge
17 of the beliefs of -- or belief of Mr. Shane Buczek
18 at the time that the alleged crime was committed.
19 And in my judgment that is relevant to willfulness,
20 state of mind of Mr. Buczek as far as this
21 prosecution is concerned. As long as that
22 knowledge is derived and concerns the time period
23 that is contemporaneous with the time period in
24 Count I of the indictment. That is not opinion
25 evidence in my view barred by 701. What we're

405
1 really talking about here is what I consider to be
2 fact testimony by witnesses, not opinion testimony.
3 It's not testimony indicative of their opinion of
4 what the opinions are of Mr. Shane Buczek. It's
5 fact testimony of what the beliefs are of Mr. Shane
6 Buczek, not the subject of expert or lay witness
7 opinion testimony. So they will be permitted to
8 testify with respect to the contemporaneous period
9 at issue in this particular case.
10 With respect to William Dihl, my understanding
11 is that there's only a three-month relationship
12 with Mr. Dihl based on the government's proffer.
13 If that's the case, then I will not permit Mr.
14 Dihl's testimony for two reasons. One, the
15 knowledge of the beliefs of Mr. Shane Buczek is not
16 and would not be contemporaneous with the beliefs
17 necessarily held by Mr. Buczek at the time that the
18 alleged crime was committed. And, Mr. Buczek --
19 all right. The contemporaneous aspect is what's
20 important there.
21 As far as the AT&T letter is concerned, I will
22 preclude that because that post-dates, as I
23 understand it, the activity alleged to be criminal
24 in this indictment, and therefore there could not
25 have been reliance on the information involving the

406
1 AT&T letter or record of payment as it relates to
2 the treasury account at the time that the acts were
3 committed that are the subject of the indictment.
4 So, on those two bases, Mr. Dihl's testimony will
5 be excluded.
6 And as far as Robert Karl is concerned, while
7 he's a study partner of Mr. Buczek, the
8 relationship is, as I understand it from the
9 proffer, a nine-month relationship. That
10 post-dates the alleged criminal activity in this
11 particular case, and therefore the testimony will
12 not be permitted. Different story perhaps if it
13 was contemporaneous knowledge of the beliefs of
14 Mr. Buczek at the time that the acts were being
15 committed that are the subject of the indictment.
16 So Dihl and Robert Karl are excluded. Amanda and
17 Adam are permitted.
18 MR. BRUCE: You've got yet his fifth
19 witness who -- if Mr. Buczek can supply us with a
20 name.
21 MR. BUCZEK: Judge, real quick, Robert
22 Karl I've known for much, much longer than nine
23 minutes. I don't know where Mr. Bruce got that
24 from. I've known him since probably 2007. But
25 just so you know, just to make the record clear.

407
1 THE COURT: Well, that may be a
2 significant difference in terms --
3 MR. BUCZEK: It's a huge difference.
4 THE COURT: -- in terms of what he would
5 testify to as far as the knowledge of your beliefs
6 at the time that the allege incidents were
7 committed.
8 MR. BUCZEK: Judge, would it be okay if I
9 had him come in to validate that?
10 THE COURT: Well --
11 MR. BUCZEK: The amount of time I've known
12 him for.
13 THE COURT: Well, you tell me. If there's
14 a good faith --
15 MR. BUCZEK: Absolutely.
16 THE COURT: I'll accept your word. You
17 tell me. You know, you can rely -- or you can
18 reference him then in your opening statement, if
19 that's what you choose to do, but it's with respect
20 to his knowledge in the latter period of 2008 and
21 the first part of 2009 of what your beliefs were at
22 that time.
23 MR. BUCZEK: It was way before.
24 THE COURT: And, you know, you can't go
25 off in every direction imaginable in connection

408
1 with that testimony. It's what he knows your
2 beliefs to be, and he's not here to enlighten
3 anybody with respect to what his beliefs are, any
4 statistics with respect to the numbers of people
5 that might share the same beliefs. It's what your
6 beliefs were at the time, all right? So you figure
7 that out. If it's contemporaneous, it's okay, I'm
8 going to permit it. As I see it with Dihl, it's
9 not admissible.
10 MR. BRUCE: Judge, this last witness even
11 if he overlaps, I submit it's cumulative.
12 THE COURT: It what?
13 MR. BRUCE: It would be cumulative. How
14 many witnesses do we need to hear from that can
15 testify about Mr. Buczek's beliefs?
16 THE COURT: You're talking about the fifth
17 witness now, the one you don't know the name of?
18 MR. BRUCE: I know his last name starts
19 with W.
20 MR. BUCZEK: It's Ken Weitzel from
21 Rochester Law Group.
22 THE COURT: And what's going to be the
23 subject of his testimony?
24 MR. BUCZEK: State of mind.
25 THE COURT: And how long have you known

409
1 him?
2 MR. BUCZEK: Seems like forever. Judge,
3 many, many years. I don't know the exact number,
4 but I'll say probably since 2004 maybe.
6 MR. BUCZEK: A very long time.
7 THE COURT: His testimony is the same as
8 every other witness we're talking about now?
9 MR. BUCZEK: Just basically the study
10 group and what takes place during our meetings.
11 That's about it.
12 THE COURT: One from your study group is
13 enough.
14 MR. BUCZEK: He's extremely important.
15 He's like the head guy from Rochester. He's
16 like -- I mean, like he's --
17 THE COURT: If there's essentially no
18 difference between --
19 MR. BUCZEK: Do I need to pick, Judge?
20 THE COURT: Yes.
21 MR. BUCZEK: I'll pick -- I'll pick Ken
22 Weitzel, and I'll exclude the other one.
23 THE COURT: Okay.
24 MR. BUCZEK: Save the Court's time.
25 MR. BRUCE: Who's the witness he's

410
1 excluding, Judge?
2 THE COURT: Robert Karl is the excluded
3 witness, right? And William -- what's his name?
4 MR. BUCZEK: The AT&T letter.
5 THE COURT: No, the fifth witness. The
6 extremely important one from Rochester.
7 MR. BUCZEK: Ken Weitzel will be coming in
8 and taking his spot.
9 MR. BRUCE: In lieu of?
10 THE COURT: Robert Karl.
11 MR. BUCZEK: Right. Correct. Judge, can
12 I go out to dismiss them when we're done with our
13 proceeding?
14 THE COURT: You may, because it's going to
15 be -- we've got to get assembled together. Are you
16 going to be giving an opening statement?
17 MR. BUCZEK: Yes, Judge.
18 THE COURT: I'm sorry?
19 MR. BUCZEK: Yes.
21 MR. BUCZEK: I'll dismiss the witnesses.
22 THE COURT: All right. Send them back.
23 Lets see, lets start in 15 minutes. Twenty minutes
24 of 12, okay? Get yourself together. We've got to
25 get the podium set up, the microphone set up for

411
1 you. And stay with the podium and the microphone.
2 You can't run all over the place, and --
3 MR. BUCZEK: I know. I understand.
4 THE COURT: I know. And Mr. Comerford
5 will be your back-up okay?
6 MR. BUCZEK: Judge, one more thing too.
7 Is this letter completely -- I can't even talk
8 about this letter?
9 THE COURT: You can't talk about the
10 letter.
11 MR. BUCZEK: Out?
12 THE COURT: Out. But you made your
13 record.
14 MR. BUCZEK: Thank you. I understand the
15 sensitivity in this.
17 (Jury seated.)
18 THE COURT: Welcome back. Hope you had a
19 good lunch. Have a seat. Okay, ladies and
20 gentlemen, we're back to very serious business, and
21 we are resumed in the case of United States versus
22 Shane Buczek. And the attorneys and Mr. Buczek are
23 back, present. You are here, of course, roll call
24 waived. And the government has the burden of proof
25 beyond a reasonable doubt.

412
1 Mr. Buczek does not have to do anything because
2 he is and continues to be presumed innocent until
3 proven guilty. You know you are the judges of the
4 facts, and I'm the judge that gives you the law.
5 And you are to resolve all the fact issues in this
6 case, and remember the burden of the government is
7 on each of the essential elements of the crime
8 charged. So, I will give you a full instruction at
9 the end of the case.
10 The government has now rested, meaning you have
11 everything it thinks you need to reach your
12 unanimous verdict in this case. On the other hand,
13 Mr. Buczek, I think you have chosen to make an
14 opening statement and put on a defense case,
15 correct?
16 MR. BUCZEK: That's correct, Judge.
17 THE COURT: Okay. So you will now hear
18 from Mr. Buczek in his opening statement.
19 MR. BUCZEK: Good afternoon -- or actually
20 good morning still. I was up very late last night
21 putting together my opening statement. I just want
22 to thank you all for being here. This has been a
23 very stressful time in my life. But, first of all,
24 I'd like to thank you for being here, and -- and I
25 want to let you know that the evidence that you're

413
1 about to see in the next several hours will show
2 the truth in my belief system, and I believe much
3 differently than most people do in the area or
4 actually the whole country. And the reason why I'm
5 doing this because this is personal for me. And
6 I'm not the type of person that likes to read
7 dialogues and all that. I like to come from the
8 heart, and this does come from my heart, guys.
9 Please allow me to tell you briefly that -- my
10 side of the story. I have a different set of
11 beliefs than most you probably ever heard ever.
12 That I know and recognize however that these
13 different beliefs does not take -- does not make me
14 wrong or doesn't make me some type of crazy man or
15 whatever comments are being going on out there,
16 because I'm not. I like to study, and I like to
17 find out the truth. And that's what this whole
18 thing is the about is the truth. Several years
19 ago--
20 MS. BAUMGARTEN: Objection.
21 THE COURT: Wait, Mr. Buczek, there is an
22 objection. What is your objection?
23 MS. BAUMGARTEN: He's talking about his
24 personal beliefs rather than forecasting for the
25 jury what his evidence in his case is going to

414
1 consist of.
2 THE COURT: Sustained.
3 MR. COMERFORD: We'll rephrase that,
4 Judge.
5 MR. BUCZEK: In the next few hours you
6 will hear testimonials from my sister, my brother.
7 I do have somebody here from the Rochester law
8 group that's been studying, and very good personal
9 friend of mine. When you review the eyewitnesses
10 that I'm ready to present, the evidence definitely
11 will show and verify my information that you've
12 seen over the last three or four days during this
13 trial. And my personal belief system that I
14 believe I call the truth.
15 As you can see, this is not an easy thing. I
16 don't know how many people have ever taken the job
17 of doing this themself. It's very rare, and I
18 appreciate you listening to me. I might not be
19 perfect, but I'm doing the best I can.
20 For instance, I know now that I, nor anyone
21 else including you or anybody else out there, when
22 they go to a bank to borrow money, we call money --
23 MS. BAUMGARTEN: Objection, your Honor.
24 THE COURT: Sustained. Listen to your
25 lawyer -- or your backup counsel, please.

415
1 MR. BUCZEK: Okay. The evidence will show
2 that when you do go to a bank, that the depositors'
3 money you and I borrow, like it's really our own
4 money. It's coming out of -- in my belief system,
5 it's coming out of our own bank account. We are
6 the bank, that's my belief. That various
7 government eyewitnesses have stated that my beliefs
8 are incorrect. Maybe lack of knowledge or
9 misconstrued or misled to some people. That's the
10 favorite one, I'm misled. That my actions, because
11 of my belief system, beliefs are borderline
12 criminal. Yet not one of these eyewitnesses stated
13 that I have -- that I have -- that they have a
14 claim against me, which a claim would be, just to
15 give an example, an original accusatory instrument,
16 a charge.
18 THE COURT: All right. Sustained. You
19 cannot make your argument in that fashion,
20 Mr. Buczek. And this is an opening statement.
21 Keep in mind that the opening statement -- and I
22 can't instruct you any differently than I do
23 anybody else, any attorney -- it's to give the jury
24 an understanding of what the likely evidence will
25 be in this case that you produce. But it is not

416
1 for you to speak in the first person and to present
2 your beliefs in the form of argument or otherwise.
3 That would be improper as far as an opening
4 statement is concerned.
5 MR. BUCZEK: Okay, Judge. Isn't it
6 interesting that nobody in the courtroom as
7 eyewitness for the government has no -- how do I
8 say it -- no injured party, no claim against the
9 defendant. I think I've asked that every time for
10 every eyewitness that came up, and I asked them do
11 you have a claim against the defendant? Isn't it
12 interesting every one of them -- I believe every
13 one of them said no?
14 Both our elements of the -- both -- the reason
15 why I brought this up is it shows no crime was
16 committed. Not one eyewitness has testified to
17 anything except their knowledge and belief. What
18 if any -- what if one of them were wrong.
19 MS. BAUMGARTEN: Your Honor, I don't --
20 THE COURT: Just say --
21 MS. BAUMGARTEN: Objection.
22 THE COURT: Sustained. What do you say
23 the evidence will show, Mr. Buczek?
24 MR. BUCZEK: Okay. I could probably add a
25 whole page typed up, Judge. The evidence is

417
1 definitely is going to show -- basically the
2 evidence will show the truth. We already know
3 there was no intent, but now we're getting into the
4 truth side, which sometimes -- which I understand
5 the government doesn't want the truth out there.
6 In my belief system -- I don't have it written in
7 here -- I strongly -- I strongly believe that they
8 lied about everything.
9 MS. BAUMGARTEN: Your Honor, objection.
10 THE COURT: Yes. That's argument. That's
11 not what the evidence will show, at least in terms
12 of how you have phrased it and couched it.
13 Objection sustained.
14 MR. BUCZEK: Okay. I'm going to cut all
15 this out. Basically the eyewitnesses are going to
16 appear, hopefully very shortly, and I would like to
17 submit this letter into the record, Judge. I
18 didn't read the whole thing into the record, but I
19 would like at least to submit it into the record.
20 THE COURT: That's for another point in
21 the proceedings. This is opening statement time,
22 Mr. Buczek. You can ask the jury whatever you want
23 to ask them in wrapping up your opening statement.
24 MR. BUCZEK: Okay. I'm going to bring my
25 eyewitnesses in, and it's going to clearly show

418
1 that this is personal for me. And, again, I thank
2 you for being here. This is probably the most
3 difficult thing I've ever done, and sometimes the
4 truth will bite you. But thank you for being here.
5 And I guess I'm a little nervous. I try not to be,
6 but it's very difficult. So, again, your Honor,
7 for the record I would like to submit this in --
8 into evidence.
9 THE COURT: We will do that -- so we don't
10 take the jury's time unnecessarily, Mr. Buczek,
11 we'll do it at the appropriate time.
12 MR. BUCZEK: Thank you so much for being
13 here.
14 THE COURT: Okay. We just have to
15 relocate the microphone. The microphone goes back
16 to the prosecutor's table. Thank you, Gerry.
17 MR. BUCZEK: Amanda Buczek.
19 A M A N D A L. B U C Z E K, having been duly
20 sworn as a witness, testified as follows:
21 THE COURT: Good morning.
22 THE WITNESS: Good morning.
23 THE COURT: All right. Make yourself
24 comfortable, please. You have to speak at the
25 microphone. It should pick you up as long as you

419
1 speak in a conversational tone.
2 THE WITNESS: Okay.
3 THE COURT: Keep in mind that you are here
4 to testify for the benefit of the ladies and
5 gentlemen of the jury.
7 THE COURT: You are under oath. If you
8 don't understand the question, make sure that you
9 ask that it be repeated, no matter who asks you
10 that question. Please don't volunteer information.
11 Be as succinct as possible. When you volunteer,
12 that complicates things.
14 THE COURT: It's up to the questioner to
15 get you to follow-up if he or she needs more
16 additional information. If there's an objection,
17 wait until I rule on the objection, and then I will
18 tell you whether to complete an answer or to wait
19 for another question to be asked of you, do you
20 understand?
21 THE WITNESS: Yes.
22 THE COURT: All right. I think you're
23 going to carry okay on the microphone. If you
24 don't, I'll ask you to move up just a little bit,
25 but state your full name, spell your last name.

420
1 THE WITNESS: Amanda L. Buczek,
2 B-U-C-Z-E-K.
3 THE COURT: Thank you very much. Your
4 witness, Mr. Buczek. Shane Buczek.
5 DIRECT EXAMINATION BY MR. BUCZEK:
6 Q. Good morning, Amanda.
7 A. Morning.
8 Q. I always mention that -- to always spell your
9 name upper and lower case, but that's another
10 story. Anyways, thank you for being here and your
11 busy schedule, and it was very difficult to bring
12 you here, and thank you so much for being here this
13 morning.
14 I would like to ask you just a few questions.
15 I'll be very brief. If you can please tell me how
16 many years of research that the defendant, Shane
17 Buczek, has put in in researching issues on the
18 monetary system, the gold standard, and -- and the
19 support of returning the republic, and one of my
20 favorite people out there would be Ron Paul. But,
21 can you please tell me a little bit about the
22 amount of hours and work and --
23 A. Years.
24 Q. -- I put into this?

421
1 THE COURT: Grounds?
2 MS. BAUMGARTEN: It's beyond the scope of
3 the Court's rulings with respect to --
4 THE COURT: No, I'm going to find that
5 this is 104 material, provides background to other
6 questions and also demonstrates the knowledge or
7 the lack of knowledge of this witness as to
8 Mr. Shane Buczek. So I'll permit it over
9 objection.
10 THE WITNESS: About 15 years, and he is
11 studying this 24/7, all through the night. His
12 office is below my bedroom, so I hear it,
13 conference calls, talks that -- Alex Jones on-line,
14 everything.
15 MR. BUCZEK: Sorry about that. I didn't
16 mean to wake you up.
17 THE COURT: Okay. Next question.
18 BY MR. BUCZEK:
19 Q. I do have another question. Do you know how I
20 always say this, and I want to ask you, why do you
21 think I always tell everybody, hey, there's no
22 money?
23 A. Because there's no gold or silver backing up
24 the dollar.
25 Q. Okay. Do you know what gold and silver is?

422
1 A. Yes.
2 Q. What's your thoughts on the silver and the
3 gold? Do you think -- do you think that's a good
4 idea to maybe have the currency backed by that?
6 THE COURT: Sustained. That means you
7 don't answer.
8 THE WITNESS: Yes, I understand.
9 BY MR. BUCZEK:
10 Q. Amanda --
11 A. Yes.
12 Q. -- how many different seminars -- how many
13 seminars do you think I've gone to just within the
14 last five years on the issues with the bankruptcy
15 of America, the monetary system, the banking
16 system, how many seminars do you think I've gone
17 to?
18 A. Before you had in-house arrest you were going
19 every month, at least. Either doing conference
20 calls or traveling, California, Florida. He's
21 taken our family to one in Rochester, New York.
22 Painful sometimes, but it's -- I mean, this is his
23 belief, this is what he studies 24/7.
24 Q. And what have you learned and what have I told
25 you about the seminars?

423
2 THE COURT: Well, it's compound. On that
3 basis I'm going to sustain the objection. The
4 question is compound, but I may allow something
5 related to that question.
6 BY MR. BUCZEK:
7 Q. What have I told you that I learned about the
8 seminars?
9 A. That behind your birth certificate there's an
10 account number, and you're able to take money out.
11 I think the dollar amount is about a hundred
12 million dollars that we're entitled to. If you
13 flip over the back of your Social Security, there
14 is a letter and a line of numbers, and that is the
15 account number that allows you to purchase items in
16 your name.
17 Q. It's just a belief system that I might have, is
18 that correct?
19 A. Correct. Yes.
20 Q. Okay. Do you recall an -- I'm not sure the
21 exact date, but do you recall I had you listen to
22 one of my hearings, one of the audios? I think it
23 was back at Christmastime of 2009 there was an
24 audio?
25 A. Correct.
424
1 Q. You don't have to give any description or
2 anything. You don't have to get too detailed, but
3 what did you think about the audio that you heard?
5 THE COURT: Sustained. No answer please.
6 BY MR. BUCZEK:
7 Q. Okay. All right. Last question for you, and
8 you're free to go.
9 A. Okay.
10 Q. What do you think about all this?
12 THE COURT: Sustained. Not relevant.
13 MR. BUCZEK: All right. Judge, I think I
14 have no further questions. I thank you very much.
15 THE COURT: All right. Take a deep
16 breath, just check with Mr. Comerford and make sure
17 you don't give up any opportunity to ask a question
18 that you would like.
19 MR. BUCZEK: Just one second please,
20 sorry. And last question.
22 BY MR. BUCZEK:
23 Q. I've spent a lot of my time trying to teach the
24 family too, haven't I?
25 A. Yes.
425
1 MR. BUCZEK: Thank you. No further
2 questions, Judge.
3 THE COURT: You have to stay.
4 THE WITNESS: I'm sorry.
5 THE COURT: Now it's cross-examination.
6 The government attorney can ask you questions,
7 okay?
8 THE WITNESS: Yeah.
9 CROSS-EXAMINATION BY MS. BAUMGARTEN:
10 Q. You're employed, aren't you?
11 A. No, I'm not.
12 Q. You're not? You don't work in the family
13 business?
14 A. We own the family business, my brothers and I.
15 Q. Do you work in the family business?
16 A. Yes, I do. I'm sorry. I'm not an employee, I
17 own the company.
18 Q. I'm sorry. I asked you, you are employed, is
19 that correct?
20 A. Correct, yes.
21 Q. You work in that -- what is the name of the
22 family business?
23 A. Buczek Enterprises.
24 Q. The family business rehabilitates Section 8
25 housing, is that correct?

426
1 A. We work with --
2 MR. BUCZEK: Objection, Judge, that's
3 irrelevant.
4 THE COURT: No, it's not. At this point
5 objection overruled.
6 THE WITNESS: No, we don't do Section 8.
7 BY MS. BAUMGARTEN:
8 Q. Do you rehabilitate housing?
9 A. Correct. When ordered, that's not our main
10 business, no.
11 Q. All right. The defendant has worked
12 periodically in the family business, is that
13 correct?
14 A. Not recently, no.
15 Q. Has he ever worked in the family business?
16 A. Correct. Helping out.
17 MR. BUCZEK: Judge, objection. Outside
18 the scope.
20 MS. BAUMGARTEN: You work in the family
21 business in part because the family business
22 generates funds?
23 MR. BUCZEK: Same objection, Judge.
24 THE COURT: Want to respond?
25 MS. BAUMGARTEN: Yes, your Honor. I'm

427
1 trying to establish that the family business does
2 not accept bonded promissory notes as payment for
3 the work that it performs.
4 MR. BUCZEK: Judge, it's not a bank,
5 Judge.
6 THE COURT: Objection sustained.
8 Q. Have you been present when any of the phone
9 calls have been made to HSBC Bank regarding your
10 brother's account with Best Buy?
11 A. No.
12 Q. You have not been present during any of the
13 purchases of items from Best Buy by your brother,
14 is that correct?
15 A. We've just utilized it as a family, but no.
16 Q. Utilized the Best Buy account?
17 A. No, the material that he had bought through his
18 promissory note.
19 Q. But you were not present when those items were
20 actually purchased by your brother at the Best Buy?
21 A. No.
22 Q. So you, as a family, the 52-inch screen TV, the
23 home theater system, and things like that were used
24 by the family members?
25 MR. BUCZEK: Judge, objection. Outside

428
1 the scope.
2 THE COURT: No, I'll permit that.
3 Overruled.
4 THE WITNESS: They were at our house,
5 correct.
7 Q. All right. You weren't present when those
8 items were installed, were you?
9 A. No, I was not.
10 MS. BAUMGARTEN: Just a moment please,
11 Judge.
13 Q. You've testified during your direct examination
14 that -- as to what your brother's belief system is,
15 is that correct?
16 A. Yes.
17 Q. Does that belief system permit him to lie?
18 A. No.
19 Q. Does that belief system permit him to provide
20 false information?
21 A. No.
22 Q. Does that belief system permit him to provide
23 false information to a bank?
24 A. No.
25 Q. Does that --
429
1 MR. BUCZEK: Objection, Judge. She's not
2 a character witness.
3 THE COURT: No. But she's testifying to
4 what her knowledge of your belief system. So,
5 objection overruled.
7 Q. Does that belief system permit your brother to
8 provide a false routing number to a bank?
9 A. No.
10 Q. Does that belief system permit your brother to
11 provide information to say that he has an
12 account --
13 MR. BUCZEK: Objection.
14 MS. BAUMGARTEN: -- that he does not have?
15 MR. COMERFORD: Judge, these are matters
16 for the jury to determine based on the law that you
17 instruct them on. Her opinion as to whether it's
18 proper or not is completely irrelevant. We ask
19 that it be stricken from the record.
20 THE COURT: I'm going to sustain the
21 objection. Disregard the last two questions,
22 ladies and gentlemen. They're not to be
23 considered. You have to determine what's false,
24 what's wrong, what the elements of the offense are.
25 MR. BUCZEK: Does your brother's belief

430
1 system permit him to lie?
2 THE WITNESS: No.
3 MS. BAUMGARTEN: Nothing further, Judge.
4 THE COURT: Anything, Mr. Buczek?
5 MR. BUCZEK: Just one question.
6 Amanda, just one question. Again, thanks for
7 being here this afternoon. Do you believe that --
8 that everything that I -- I study -- everything
9 that I've studied and I believe to be true, do you
10 believe may be, may be possibly it might be true?
11 THE WITNESS: Yes.
12 MS. BAUMGARTEN: Objection, your Honor,
13 motion to strike.
14 MR. BUCZEK: No further questions, Judge.
15 THE COURT: Objection sustained. Strike
16 the answer of Miss Buczek. It's not relevant,
17 ladies and gentlemen, to the issues before you as
18 to Shane Buczek. Okay. And it's not to be
19 considered. It's not competent evident. Thank
20 you.
21 Miss Buczek, you're excused. Thank you very
22 much.
23 MR. BUCZEK: Adam Buczek.
24 A D A M J O H N B U C Z E K, having been duly

431
1 THE COURT: Good afternoon. All right.
2 Mr. Buczek, you're going to be the next witness
3 here I guess. And just a couple of very brief
4 instructions. You are here to testify for the
5 benefit of the ladies and gentlemen of the jury.
6 So if you speak into the microphone at a
7 conversational tone, it should pick you up okay.
8 If you don't understand a question, please ask the
9 attorneys or your brother to repeat the question,
10 or recast the question, whatever it's going to
11 take. Don't answer a question you don't
12 understand. Be as succinct as possible. Don't
13 volunteer information, because that really
14 complicates things for everybody. If there's an
15 objection, wait until I rule on the objection, and
16 then I will give you an instruction on whether to
17 complete an answer or wait for another question, do
18 you understand?
19 THE WITNESS: Yes, sir.
20 THE COURT: All right. Looks like you'll
21 be picked up pretty well, please state your full
22 name, spell your last name.
23 THE WITNESS: Adam John Buczek,
24 B-U-C-Z-E-K.
25 THE COURT: Thank you. Your witness,

432
1 Shane Buczek.
2 MR. BUCZEK: Thank you, Judge.
4 Q. Adam, thank you for being here this afternoon
5 with your busy schedule. I appreciate you coming
6 down here.
7 The first question I was going to ask you is
8 how many, you know, seminars have I gone to, how
9 much research that I have done over -- over the
10 last several years? How many seminars do you think
11 I've been to?
12 A. I don't think I can really answer that.
13 Numerous would be the best way. More than on my
14 hands.
15 Q. All right. Do you believe that I'm -- I'm
16 seeking the truth?
18 THE COURT: Sustained. Don't answer that.
19 BY MR. BUCZEK:
20 Q. Have I talked to you about my belief system on
21 the bankruptcy of the United States of 1933?
22 A. Yes.
23 Q. Have I talked about it a number of times to
24 you?
25 A. Every day.
433
1 Q. How long?
2 A. Since I can remember.
3 THE COURT: How old are you?
4 THE WITNESS: Twenty-five.
5 BY MR. BUCZEK:
6 Q. Have I also asked you the importance of this
7 issue that affects every one of us in America
8 today?
9 A. Yes.
10 Q. Do you understand me sometimes when I talk to
11 you about the bankruptcy and the gold standard?
12 A. To be honest, not always.
13 Q. And last question is, I'm sure I've printed out
14 and I've given it to you, but have you ever read
15 some of the publications that I've given to you on
16 the issues at hand?
17 A. Yes.
18 Q. Concerning the bankruptcy?
19 A. Yes, you have.
20 MR. BUCZEK: No further questions. Thank
21 you.
23 Q. Good afternoon. You were not present when your
24 brother opened up the Best Buy account, is that
25 correct?
434
1 A. No, ma'am.
2 Q. You were not present when your brother made
3 purchases at Best Buy, is that correct?
4 A. No, ma'am.
5 Q. That is correct, or it's not?
6 A. That is correct.
7 Q. Okay.
8 A. Sorry.
9 Q. You were not present when the items that your
10 brother purchased were installed in your family's
11 home, is that correct?
12 A. No, I was not present.
13 Q. You might have used them while you were at your
14 family's home, is that fair to say?
15 A. I don't recall, ma'am.
16 Q. All right. You've testified that you're
17 familiar with the belief system your brother holds,
18 is that correct?
20 Q. Does that belief system permit him to make
21 false statements?
22 A. Could you reword that, please?
23 Q. The belief system that your brother holds, it
24 does not permit him to make false statements to
25 people or banks, is that correct?

435
1 A. That is correct. That can be said about
2 anything.
3 Q. You were not present when any telephone
4 contacts were made to HSBC Bank, is that correct?
5 A. No, ma'am.
6 Q. You did not make any of those contacts, is that
7 correct?
8 A. No.
9 Q. You're not aware of anyone that made any of
10 those contacts also, is that correct?
11 A. Correct.
12 Q. Your brother's belief system doesn't permit him
13 to lie, does it?
14 A. No.
15 Q. Your brother's belief system also does not
16 permit him to violate the law, that's correct also?
17 A. Correct.
18 Q. Your brother's belief system does not permit
19 him to violate laws that he disagrees with either?
20 A. Correct.
21 MS. BAUMGARTEN: Nothing further, your
22 Honor.
23 MR. COMERFORD: Judge, we'd object to that
24 same line of questioning on the same grounds as we
25 did under Amanda Buczek.

436
1 THE COURT: No. Overruled. Okay. Any
2 other questions?
3 MR. BUCZEK: Judge, I'm going to let him
4 go to work.
5 THE COURT: Okay. Thank you.
6 THE WITNESS: Thank you.
7 MR. BUCZEK: Thank you for coming.
8 THE COURT: Do you have a next witness?
9 MR. BUCZEK: Yes. Ken Weitzel from
10 Rochester law group.
11 K E N N E T H W E I T Z E L, having been duly
13 THE COURT: Good afternoon.
14 THE WITNESS: Good afternoon, your Honor.
15 THE COURT: All right. Make yourself
16 comfortable, please, and position yourself so
17 you're a slight distance from the microphone.
18 Speak at it. It will pick you up. Everything, as
19 you probably know, is taken down by my court
20 reporter, and you are here to testify for the
21 benefit of the ladies and gentlemen of the jury.
22 They need to hear you, so that's part of the
23 purpose of this instruction. Also with respect to
24 any question that is asked of you, if you don't
25 understand it, please let the questioner know, and

437
1 then it will be reput to you. Answer any question
2 that you understand succinctly. Don't volunteer
3 information. That really complicates things if
4 there's volunteered information as part of the
5 response. If there's an objection, wait until I
6 rule on the objection, and then I will give you an
7 instruction on whether to complete an answer or
8 wait for another question. Do you understand?
9 THE WITNESS: Yes, sir.
10 THE COURT: Lets hear from you who you
11 are, spell your -- state your full name, spell your
12 last name, please.
13 THE WITNESS: My name Kenneth Weitzel. My
14 last name is spelled W-E-I-T-Z-E-L.
15 THE COURT: Okay, Mr. Weitzel. Your
16 witness, Mr. Buczek.
19 Q. Thank you for being here today. Thanks for the
20 long travel from Rochester. I really appreciate
21 you coming.
22 Could you please tell us briefly about what you
23 do for a living and what your hobbies are?
24 A. I am in the construction field. Presently I
25 work for a company that puts interior systems in,

438
1 walls, ceilings, and drywall, that kind of thing.
2 I'm involved in, you know, taking care of my
3 family, my kids, and I look into different legal
4 proceedings, and history, and, you know,
5 government, and all that kind of stuff.
6 Q. So pretty much you're well respected in your
7 community?
8 A. Yes. I was -- I was conservative party leader
9 for my town for a little while, and I'm involved in
10 things like that.
11 Q. And you're also part of groups like the
12 Rochester Law Group and --
13 A. Yes.
14 (Indiscernible cross-talk.)
15 THE COURT: It's okay. Next question
16 please.
17 BY MR. BUCZEK:
18 Q. You're also part of different organizations
19 because you -- maybe give us one example of one,
20 any organizations like Rochester Law Group.
21 A. Oh, there's a law study group that meets at a
22 church around the corner from my house, and
23 sometimes I go to it, sometimes I don't. Like I
24 said, I'm involved in the conservative party a
25 little bit.
439
1 Q. Could you please give me just a brief
2 description in what you believe the definition of
3 money is?
6 MR. BUCZEK: Can you give me -- can you
7 please explain in your own words what a promissory
8 note is?
11 BY MR. BUCZEK:
12 Q. Do you think that -- okay. Have we
13 communicated before about my belief system?
14 A. Yes, we talk quite frequently.
15 Q. Oh, really. Okay. How long has this been
16 going on?
17 A. Five, six years now.
18 Q. How often do we talk about the issues at hand
19 when I like to speak and talk about the bankruptcy?
20 A. Often.
21 Q. And what have I told you about my belief
22 system?
24 THE COURT: Grounds?
25 MS. BAUMGARTEN: Hearsay.

440
1 THE COURT: Overruled.
2 THE WITNESS: Your belief system is
3 basically that the -- when it comes to the banking
4 industry or the economy and money, that kind of
5 thing, is that all money that people have in their
6 pocket for the most part is a debt instrument at
7 the time. There's no gold or silver behind it
8 making it worth of any value.
9 MR. BUCZEK: So why do they put numbers on
10 the notes for?
13 BY MR. BUCZEK:
14 Q. What else do you remember that we talked about
15 and discussed at meetings and so forth and so on
16 over the years that I've talked about? Can you
17 recall anything else that maybe I briefly talked
18 about?
19 A. We spoke about the Federal Reserve and how it's
20 a central bank and how that's been tried before,
21 and the history of the central bank itself, and how
22 President Jackson tried to get rid of it, and they
23 brought it back in and with -- you know, with the
24 depression and, you know, why the banks failed
25 then, and different things like that. And how the

441
1 notes that we have now are basically worth no
2 money. That's the basic thing we talk about.
3 Q. Would you call yourself -- or call myself --
4 sorry, not yourself -- myself maybe highly
5 educated?
7 THE COURT: Overruled.
8 MR. BUCZEK: I'll withdraw the question,
9 Judge.
10 I don't think I'm going to take anymore of the
11 Court's time.
12 THE COURT: I was going to let him answer
13 that question.
14 MR. BUCZEK: You were?
15 THE COURT: Yeah.
16 THE WITNESS: Do you want me to respond?
17 BY MR. BUCZEK:
18 Q. Yeah.
19 A. Yes, I would. And in that venue of -- of study
20 I would say you were very educated. I would say
21 that I've learned a lot from the things you've
22 done, and the stuff we've talked about, and what
23 you're doing right now. I mean it -- it helped me
24 realize --

442
1 Move to strike.
2 THE COURT: Sustained. That will be your
3 answer. Thank you.
4 MR. BUCZEK: No further questions, Judge.
5 THE COURT: Okay. Any cross-examination?
6 MS. BAUMGARTEN: Yes, please.
8 Q. You work in the field of construction?
9 A. Yes, I do.
10 Q. Are you paid bonded promissory notes?
11 A. No, I'm not.
12 Q. How are you paid?
13 A. Federal Reserve notes.
14 Q. Actual currency?
15 A. No. I'm paid by Federal Reserve notes.
16 Q. Who pays you?
17 A. My employer.
18 Q. Your employer is?
19 A. Gypsum Systems Incorporated.
20 MR. COMERFORD: Objection, your Honor.
21 What his beliefs are are irrelevant under the
22 Court's ruling, so whether he gets paid in one kind
23 of notes or another, or accepts one thing or
24 another is irrelevant. What's relevant are
25 Mr. Buczek's beliefs, not Mr. Weitzel's beliefs.

443
1 THE COURT: Maybe. What's your --
2 THE WITNESS: Actually --
3 THE COURT: Hold on. What's your position
4 on that?
5 MS. BAUMGARTEN: I think it is relevant,
6 your Honor.
7 THE COURT: How?
8 MS. BAUMGARTEN: I think it is.
9 THE COURT: How?
10 MS. BAUMGARTEN: In that he talks about
11 the belief system the two of them share and he's
12 learned information from the defendant, yet he
13 doesn't --
14 THE COURT: Not good enough. Objection
15 sustained. It could be relevant, but not on that
16 basis. Okay. Next question.
18 Q. You were not present when the defendant made
19 purchases at Best Buy, is that correct?
20 A. No, I was not.
21 Q. You were not present at any time when any
22 telephone communications were made with HSBC Bank
23 concerning the defendant's account there, is that
24 correct?
444
1 Q. You did not make any telephone calls to HSBC
2 Bank concerning the defendant's Best Buy account,
3 is that accurate?
4 A. No, I did not.
5 Q. You testified with respect to the information
6 that the defendant has given to you or spoken to
7 you about concerning his belief system on his
8 direct examination, is that fair to say?
9 A. Um-hum.
10 THE COURT: You have to say yes or no.
11 THE WITNESS: Yes, I'm sorry.
13 Q. So you have an understanding of what the
14 defendant believes concerning the belief system, is
15 that correct?
16 A. I would say I have a strong understanding of
17 what the defendant believes.
18 Q. That belief system does not permit the
19 defendant to give false or inaccurate information
20 to a bank, is that correct?
21 MR. COMERFORD: Objection, your Honor.
22 Calls for legal conclusion, also argumentative. It
23 goes directly to what's in the good faith
24 instructions in the jury charge.
25 THE COURT: No, I don't think so, not on

445
1 the way the question was proposed. Objection
2 overruled. You may answer the question.
3 THE WITNESS: Would you repeat that,
4 please?
5 MS. BAUMGARTEN: Would you have it read
6 back, your Honor?
7 THE COURT: No. Reput it.
9 Q. The defendant's belief system does not permit
10 the defendant to give false or inaccurate
11 information to a bank?
12 A. I can't say whether it does or doesn't. I
13 don't know all the defendant's belief systems. I
14 just know what we've spoken about.
16 the defendant to lie, is that correct?
17 A. I would say no. The defendant's character does
18 not permit him or he doesn't lie, that would be a
19 better way to go. His belief system doesn't say
20 don't lie, other than if he believes in the Ten
21 Commandments, you know, or something like that, you
22 know, where you're not supposed to lie, cheat, or
23 steal or anything like that. The defendant is
24 basically an honest individual. I've never known
25 him to be anything but.

446
2 him to violate the law, is that correct?
3 A. Yes, I would believe that his belief system,
4 where he doesn't violate the law.
6 him to violate laws that he disagrees with, that
7 would be correct also, is that a fair --
8 A. That would be correct also, yes, I would say
9 that.
10 MS. BAUMGARTEN: Nothing further, your
11 Honor.
12 THE COURT: Okay. Anything more,
13 Mr. Buczek? Take your time.
14 MR. BUCZEK: Just one question, Judge.
15 Could you just briefly tell us -- I believe you
16 brought one thing with you today that you wanted to
17 show?
19 MR. BUCZEK: Judge, it's very important.
20 THE COURT: Well -- no, no. I'm going to
21 let him answer yes or no to that.
22 THE WITNESS: Yes, I did.
23 MR. BUCZEK: Could you please tell us what
24 that is?

447
1 The government has not seen whatever it is that's
2 proposed. It's not been marked into evidence or
3 received.
4 THE COURT: It may or may not be relevant,
5 it may or may not be prejudicial, so you must put
6 the government on notice and then --
7 MR. BUCZEK: Can we put the government on
8 notice?
9 THE COURT: Yes.
10 MR. BUCZEK: It's very important, Judge.
11 THE COURT: Okay. Let the government
12 know.
13 MR. BUCZEK: All right. Judge, no further
14 questions.
15 THE COURT: Okay, Mr. Buczek, thank you.
16 Anything else, Miss Baumgarten?
18 THE COURT: All right. Mr. Weitzel, thank
19 you very much. We appreciate you being here.
20 MR. COMERFORD: Judge, I don't think we
21 have any further witnesses right now.
22 THE COURT: Okay. Lets meet at side bar.
23 Michelle, I think you can stay there please.
24 (Side bar discussion held off the record.)
25 THE COURT: Michelle.

448
1 (Side bar discussion held on the record.)
2 THE COURT: Okay. Here's what you have to
3 do, okay, if you have any more witnesses or
4 evidence to introduce, let me know what that is.
5 If you have subpoenas out and you want to talk
6 about that, you have to make an offer of proof. I
7 want the government's position on whether or not if
8 a witness is unavailable, if there should be
9 additional time before we go forward with wrapping
10 the case up as to the proffer or the offer of proof
11 of any witness that you can't get to. I mean,
12 you've been on notice. This case has been
13 scheduled for a long time, and you should be ready.
14 So let's talk about do you have anybody else to
15 testify this afternoon?
16 MR. BUCZEK: No, Judge, because I thought
17 I wasn't even going to have enough time to bring
18 all these people, and half of them couldn't make
19 it, that really shrank the day right up.
20 THE COURT: Do you have any other evidence
21 to introduce today?
22 MR. BUCZEK: Yes, but not today, because
23 it's all gone.
24 THE COURT: Okay. What else might you
25 introduce if you had more time?

449
1 MR. BUCZEK: I would probably introduce my
2 mom and dad, and the last eyewitness would be
3 probably Walker Todd.
4 THE COURT: Okay. Let's stop as far as
5 your mother and your father are concerned.
6 Government objection on Mr. and Mrs. Buczek?
7 MS. BAUMGARTEN: They were placed on
8 notice. They were present during the initial
9 proceeding when the Court granted the adjournment
10 to the defense to move the trial date to where we
11 are today. They've also been previously in the
12 courtroom when the Court has advised of what the
13 date was.
14 THE COURT: All right. That's true.
15 MS. BAUMGARTEN: They would also be
16 cumulative, your Honor. The Court has permitted
17 two witnesses to testify from the defendant's
18 family.
19 THE COURT: Okay.
20 MR. BUCZEK: Judge, we gave notice too.
21 THE COURT: Is there anything additional
22 that your parents would testify to that your sister
23 and brother did not testify to?
24 MR. BUCZEK: More importantly my dad.
25 Because my dad is -- really knows a lot more than

450
1 anybody else in the whole family. My dad -- we're
2 like really good friends.
3 THE COURT: But he would testify to his
4 knowledge of what your beliefs are?
5 MR. BUCZEK: Exactly, and I think it's
6 extremely important, and we did give -- my mom gave
7 him notice I believe, didn't she, in court. I'm
8 not talking loud.
9 THE COURT: It's for me to tell
10 Mr. Buczek, not for the --
11 MR. BRUCE: I'm trying to -- I'm just
12 trying to quiet him down.
13 THE COURT: Is that your what we call a
14 proffer of -- your offer of proof --
15 MR. BUCZEK: Yes, Judge.
16 THE COURT: -- with respect to your
17 father? Government's position?
18 MS. BAUMGARTEN: We oppose, your Honor.
19 THE COURT: All right. On that basis,
20 one, your father was on notice well in advance that
21 he would have to be ready for this trial. You were
22 on notice likewise. The proffered testimony, in my
23 judgment, would be essentially cumulative, and on
24 that basis I'll sustain the government's objection.
25 You have your record made as far as your not

451
1 calling your father. All right.
2 MR. BUCZEK: One thing, Judge?
3 THE COURT: Yeah.
4 MR. BUCZEK: Is there a way to do the
5 testimony over the phone? Would the Court allow
6 that?
7 THE COURT: No.
8 MR. BUCZEK: Okay. That's what I thought.
9 THE COURT: Okay. Anybody else?
10 MR. BUCZEK: Walker Todd. Am I going to
11 be able to bring him in here?
12 THE COURT: Who is that?
13 MR. BUCZEK: Walker Todd is a retired
14 attorney who used to work for the Federal Reserve.
15 He would validate that banks only accept promissory
16 notes as payment, because Federal Reserve notes are
17 promissory notes anyways. That's a whole new
18 story, and basically it gets back to the state of
19 mind that, you know, I've said it over and over,
20 and again for the last two years there's been no
21 intent. Now I need to prove the lack of intent.
22 THE COURT: Okay.
23 MR. BUCZEK: Does that make sense?
24 THE COURT: Well, let's see what the
25 government says, and if it's relevancy, if -- let

452
1 me hear what you have to say.
2 MR. BRUCE: Judge, there is out on the
3 Internet widely accessible an affidavit from Mr.
4 Todd that was given in court proceeding in a state
5 court in Michigan where he kind of adheres to what
6 Mr. Buczek is talking about. The fact that he gave
7 this affidavit in a court proceeding is of no
8 relevance to this case. His opinions on what's
9 money and what's not money also is not relevant to
10 this case. Not only that, defendant's been on
11 notice now for two months, give or take, that this
12 trial was going to occur when it has. If he wanted
13 to call Mr. Todd, it was his obligation to get a
14 subpoena for Mr. Todd out there roughly two months
15 ago.
16 MR. BUCZEK: But, Judge, the date was
17 changed, and I didn't know, you know, we were
18 discussing some kind of -- and that got changed.
19 And then it totally caught my off guard, and I'm
20 not really 100 percent prepared for this trial.
21 But all in all I thought I did pretty good without
22 being ready.
23 THE COURT: Okay.
24 MR. BRUCE: I don't think Mr. Todd is
25 under subpoena as we speak.

453
1 THE COURT: Is he under subpoena?
2 MR. BUCZEK: Yeah, he is. It was done
3 already.
4 MR. BRUCE: He indicates to me that his
5 process server got the subpoena last night to serve
6 it.
7 THE COURT: Okay. Okay. Well --
8 MR. BRUCE: It may or may not be served at
9 this point.
10 THE COURT: Here's -- a couple of things.
11 Number one, I'm not going to permit you to call
12 him. It's not established that he's under
13 subpoena. Number two, in my judgment, based on the
14 proffer, the testimony is not relevant. Three, you
15 were instructed to be ready before trial. I
16 understand that maybe things don't go the way you
17 would like to see them go timewise, but, at least
18 the one adjournment that's been referenced here I
19 think that was at your request, and that was to
20 accommodate another individual as attorney. So,
21 the delay is attributable to you. You should have
22 been ready. I'm going to sustain the government's
23 objection.
24 MR. BUCZEK: Judge, I was ready for today.
25 I didn't want to bring too many eyewitnesses down.

454
1 Remember I did have five, and three of them were
2 cut out. So, to, you know, be accommodating for
3 both sides, I did think holding people off to
4 Monday, because I thought the testimony of William
5 that was going to be here from Philadelphia, and
6 basically I was going to ask him numerous questions
7 and, of course, Brian was going to help me. That's
8 why they're not here today. I thought this was
9 going to take up all day.
10 THE COURT: Okay. Ordinarily, I mean that
11 might be a persuasive argument. This is not the
12 ordinary because the testimony proffered is not
13 relevant in my judgment, okay?
14 MR. BUCZEK: Okay. I'm not arguing at
15 all. I'm just, you know, that's what I thought
16 would take the whole time.
17 THE COURT: Yeah.
18 MR. BUCZEK: That's all. And I never
19 expected to lose, the news article, and the thing
20 with the jury, I can't control that, Judge.
21 THE COURT: Okay. So, given that, and if
22 you don't have anything further to introduce.
23 MR. BUCZEK: But I do.
24 THE COURT: Not here. You're not ready.
25 MR. BUCZEK: Right. Yes, Judge.

455
1 THE COURT: Okay. Nothing that I know of
2 that you've offered is relevant. There's -- and
3 given that, you want to talk to your attorney and
4 see if there's -- if you're going to rest today so
5 we proceed to discuss the jury charge to get ready
6 for closing arguments, that can take place still
7 this afternoon, so --
8 MR. BUCZEK: Okay.
9 THE COURT: -- talk with him and see where
10 you are.
11 MR. BUCZEK: If we do put an -- I think
12 it's a called an adjournment, do we have to have it
13 typed up?
14 THE COURT: An adjournment motion?
15 MR. BUCZEK: For Monday.
16 THE COURT: No. No. If we go forward
17 with closing arguments this afternoon and jury
18 charge this afternoon, that's the case, and then
19 the jury gets to deliberate probably this afternoon
20 or tomorrow or Monday.
21 MR. BUCZEK: Tomorrow is Saturday.
22 THE COURT: Or on Monday.
23 MR. BRUCE: Bring them in tomorrow.
24 MR. BUCZEK: Oh, come on.
25 MR. COMERFORD: You could put on the

456
1 record the government suggested that.
2 THE COURT: Okay. All right. Talk to
3 Mr. Comerford, see if there's anything more that
4 has to go into your case, otherwise you will be
5 required to rest and you can rest over objection I
6 suppose, but that brings the case to a close.
7 Is there any rebuttal?
8 MS. BAUMGARTEN: Your Honor, based on the
9 information within the defendant's case in chief,
10 the government once again -- I'm bringing this in
11 light of the Court's prior ruling that I
12 respectfully disagree with -- we would like to call
13 Special Agent Falkowski to testify with respect to
14 his presence at a prior proceeding, which we will
15 sanitize, that directly opposes the information
16 that was proffered by the defendant concerning his
17 purported good faith belief.
18 THE COURT: Okay. For the reasons
19 previously stated, the request is denied. All
20 right. So we'll talk about a jury charge, and
21 we'll talk about closing arguments.
22 MR. BUCZEK: Judge, I do want to make a
23 record of this. I know they -- this is -- this is
24 just for us. I want to put it on the record.
25 MR. BRUCE: It is on the record.

457
1 MR. BUCZEK: I know. Mr. Falkowski, him
2 and I communicated, I don't know how many times,
3 many, many times, and he knows -- maybe on his
4 public side he knows I have no intent, and I've
5 given him -- I want to put that on the record.
6 MS. BAUMGARTEN: We're getting very far
7 afield.
8 THE COURT: I know.
9 MS. BAUMGARTEN: The information came up
10 in the context of a proffer and the parties --
11 THE COURT: That's enough. That's enough.
12 You made your point. I will ask you -- what time
13 is it -- in five minutes or so what you want to do
14 at this point in time.
15 MR. COMERFORD: Thanks, Judge.
16 THE COURT: You're welcome.
17 (End of side bar discussion.)
19 (Jury seated.)
20 THE COURT: Okay. Good to see you again.
21 Thank you very much. Please have a seat. We're
22 reassembled in United States versus Shane Buczek.
23 The attorneys are present. Mr. Buczek is, and the
24 ladies and gentlemen are back, roll call waived.
25 Anything additional, Mr. Buczek?

458
1 MR. BUCZEK: Yeah, Judge. I've been
2 reviewing everything here, and I'm not sure if this
3 is an appropriate time to ask for --
4 THE COURT: Check with Mr. Comerford
5 please.
6 (Off the record discussion.)
7 MR. BUCZEK: All right. Judge, I'm going
8 to have to -- I do have one eyewitness that's not
9 here today, but at this point I'm going to have to
10 say I rest.
11 THE COURT: Okay. Mr. Buczek, thank you.
12 Okay. And, ladies and gentlemen, the defense now
13 rests. The government, under the rules,
14 technically has the opportunity to discuss or at
15 least to present a rebuttal case.
16 Anything, Miss Baumgarten?
17 MS. BAUMGARTEN: Aside from what was
18 previously discussed, your Honor, no.
19 THE COURT: Okay. All right. Ladies and
20 gentlemen, we will resolve all the matters that
21 relate to exhibits. You now have all of the
22 evidence that is available to be presented to you
23 from both sides, and that puts you in a position,
24 after the instruction in the law and the closing
25 arguments of the attorneys, to start deliberations

459
1 in your effort to receive -- or to return a
2 unanimous verdict in this particular case.
3 Remember, common sense, experience, your
4 intelligence. The attorney for the government can
5 make an argument to persuade you to her point of
6 view. With respect to Mr. Buczek, the defendant,
7 in his closing argument, it's different from
8 opening statements, where you get a bird's eye view
9 of what the evidence was. But in summations you
10 get to be persuaded -- or at least the attorneys
11 can persuade you in terms of what the evidence was,
12 and how that relates to the burden of the
13 prosecution to prove its case beyond a reasonable
14 doubt, and how it relates to the defense theory of
15 this particular case, since Mr. Buczek chose to put
16 on evidence. He didn't have any obligation to do
17 that. He was presumed innocent and still is until
18 proven guilty beyond a reasonable doubt.
19 Okay. You look hungry, so we're going to send
20 you out to lunch, and we'll resume again around
21 2:30. Okay. Thank you.
23 THE COURT: Okay. From the government's
24 standpoint, are you ready to sum this afternoon?
25 MS. BAUMGARTEN: I will be.

460
1 THE COURT: Okay. And, Mr. Buczek, you'll
2 be giving a closing argument for yourself?
3 MR. BUCZEK: Judge, I didn't hear what you
4 said just now.
5 THE COURT: I asked the government if it
6 will be ready to make a summation, a closing
7 argument, and it said yes. All right. And from
8 your standpoint, you will make a closing argument
9 as well?
10 MR. BUCZEK: Yeah, absolutely, Judge. I'm
11 not sure exactly what I'm going to be saying. I
12 have something written up already. But I just want
13 to put on the record that I would like you to
14 reconsider my eyewitnesses that would be on here on
15 Monday, just maybe you can think about it over
16 lunch or something.
17 THE COURT: I'll think about it over
18 lunch.
19 MR. BUCZEK: Just think about it.
20 THE COURT: I will do that, but my ruling
21 stands. It's not relevant. To some extent it
22 would be cumulative, and on that basis -- and you
23 had an obligation to be ready, and all of those are
24 taken into account, but I will rethink it.
25 All right. As far as the jury charge is

461
1 concerned. You've seen that, Mr. Comerford. Is
2 there anything that Mr. Buczek and you want to talk
3 about?
4 MR. COMERFORD: Judge, we have both
5 reviewed the jury charge, and -- Shane, do you have
6 any problem with the jury charge?
7 Judge, other than a couple things the Court
8 would clear up anyway, I don't know if you want me
9 to go through them.
10 THE COURT: Is that okay, Mr. Buczek, if
11 Mr. Comerford talks about those things?
12 MR. BUCZEK: Yes.
13 THE COURT: The government has told me
14 it's satisfied with the charge, is that right?
15 MR. BRUCE: We are, Judge.
16 MR. COMERFORD: I'm guessing the Court
17 would do this anyway, charge number 12 is judicial
18 notice. I don't think we have anything that the
19 Court has taken judicial notice of.
20 MR. BRUCE: That's true, Judge.
21 MR. COMERFORD: I don't know if it's the
22 Court's practice to take these out on its own, or
23 if you want me to mention it.
24 THE COURT: Yes, if you will.
25 MR. COMERFORD: Charge number 19,

462
1 impeachment by prior inconsistent statement, I
2 don't know that that came up at all. I don't think
3 it did.
4 MR. BRUCE: I agree.
5 THE COURT: All right. I will delete that
6 as well.
7 MR. BRUCE: It was 19?
8 THE COURT: Actually charge 19. It should
9 be on page 27 I think.
10 MR. BRUCE: I got it. No problem.
11 MR. COMERFORD: Judge, we do have one
12 request, charge number 26 where the Court reads the
13 indictment, I think because it's in the part of the
14 charge where we're getting into the elements of the
15 offense, it would be good just at the end of that
16 to remind the jury the indictment is not evidence,
17 it's just an accusation.
18 THE COURT: Certainly.
19 MR. COMERFORD: If possible we would like
20 that.
21 THE COURT: Okay.
22 MR. COMERFORD: That's all I have, Judge.
23 THE COURT: Okay. I will review my notes.
24 I put a couple of checkmarks here and there, and I
25 will review it again in light of the fact I have

463
1 the comments now from both sides. And I will be
2 prepared to charge following summations. We'll see
3 what time things are at after the arguments, and
4 then we'll decide how far we're going to go today.
5 Okay. And I will think over lunch --
7 THE COURT: -- Mr. Buczek, about your
8 request.
10 THE COURT: But again you are on notice of
11 what my rulings were. We already discussed those,
12 but I will give consideration to your request.
13 Okay. We'll see you back here at 2:30. Okay.
15 MR. BRUCE: 2:30, Judge?
16 THE COURT: Yes, 2:30.
17 (Lunch recess was taken.)
19 THE CLERK: Criminal case 09-121S, United
20 States of America versus Shane Buczek.
21 THE COURT: Okay. The attorneys and
22 Mr. Buczek are back, present. We're going to call
23 the jury in, and we will begin with closing
24 arguments, and you will go first, Miss Baumgarten.
25 MS. BAUMGARTEN: Okay.

464
1 MR. COMERFORD: Judge, just very briefly,
2 we would renew our motion under Rule 29. I don't
3 think we did that when we rested.
4 THE COURT: I'll reserve on that.
6 THE COURT: Okay, Darryl, can we get the
7 jury, please?
8 MR. BUCZEK: Just a quick question, would
9 this be a good time to talk about what I asked
10 before when we left for lunch? Remember we briefly
11 talked --
12 THE COURT: Sure. I considered your
13 request, and I'm going to deny it for the same
14 reasons that we discussed.
15 MR. BUCZEK: Okay. So no more recalling
16 witnesses and that's it, right?
17 THE COURT: It's all over.
18 MR. BUCZEK: Just for the record, that's
19 fine.
20 THE COURT: I'm glad you brought it up.
22 (Jury seated.)
23 THE COURT: Okay. Please be seated. Good
24 to see everybody. Hope you had a good lunch. We
25 are resumed, ladies and gentlemen, in the case of

465
1 United States versus Shane Buczek, and everybody is
2 back, present. Your attendance is roll call
3 waived. You are here.
4 We are now at the point where both sides have
5 rested their respective cases, and as you know, you
6 have everything from their standpoint that you need
7 to return a unanimous verdict in this case, and
8 that's what your duty is, is to decide the fact
9 issues based on the evidence or lack of evidence
10 and return that unanimous verdict. How do you go
11 towards working on that unanimous verdict?
12 Basically applying your common sense, your
13 intelligence, your experiences to what you've been
14 exposed to and what has been introduced as
15 competent evidence in this case. To help you get
16 there, before you start the deliberations, and
17 before I charge you on the law, you will hear the
18 closing arguments of Miss Baumgarten for the
19 government and Mr. Buczek the defendant in this
20 case.
21 And so that you recall, the closing arguments
22 are different from opening statements. Basically
23 they're intended to reflect the advocacy of the
24 attorneys in persuading you, they have an
25 opportunity now to persuade you with what has been

466
1 introduced into evidence in this particular case.
2 And that persuasion means this. I mean, if there's
3 a reference to what the testimony was or what the
4 exhibits were -- you're going to get the exhibits
5 in the jury room when you start your
6 deliberations -- your recollections control. The
7 attorneys or Mr. Buczek, if they say something that
8 doesn't comport with what you believe was the
9 evidence, you rely on your recollection of the
10 testimony of what the evidence was, because you are
11 the judges of the facts. I will charge later, and
12 that's after both closing arguments, and give you
13 the instruction on the law. And if there's
14 something I say that's different from what the
15 attorneys may make reference to in terms of the
16 law, it's my statement to you about the law that
17 controls. So your recollection controls as to the
18 facts and the evidence, and you rely on what I say
19 as the law.
20 Now, keep in mind a couple of things, and
21 you've heard this numerous times. No burden on the
22 defendant whatsoever. He is and remains presumed
23 innocent until proven guilty. The government
24 solely has the burden. It must establish each of
25 the three essential elements of this case in the

467
1 count before you, the bank fraud case in violation
2 of Title 18, Section 1344, by the proof standard of
3 proof beyond a reasonable doubt, and you are to
4 consider each element separately and distinctly and
5 individually in coming to your determination by
6 unanimous verdict if the government has met its
7 burden of proof in its entirety. So, basically
8 those are the fundamental rules.
9 The way it works is, because the government
10 brought the case and has the burden, it goes first.
11 Then Miss Baumgarten, when she has concluded her
12 closing argument, will be followed by Mr. Buczek,
13 and time permitting and if it's appropriate, the
14 government may have the opportunity for a short
15 rebuttal argument. So that's what you're in for
16 this afternoon, and then following that, again,
17 time permitting, I'll start the charge and/or the
18 instruction to you, and that will control. And
19 some of it you will have heard before, we talked
20 about that, the method to the madness, basically.
21 Please, you've been terrific, you've given
22 everybody your attention up to this point in time.
23 Please carry that out one step further. Listen
24 carefully to the closing arguments in this case,
25 and then I'll give you final instructions, then you

468
1 start your deliberations, and then we will wait for
2 you to come back with your unanimous verdict.
3 Okay.
4 With that, Miss Baumgarten, your closing
5 argument, please.
6 MS. BAUMGARTEN: May it please the Court,
7 the evidence the jury has heard over the last four
8 days establishes beyond a reasonable doubt that the
9 defendant formulated a plan to buy many items and
10 many services from Best Buy, never intending to pay
11 for them. His first plan was to provide
12 information to HSBC Bank by way of a routing number
13 which was an actual routing number, but a
14 fictitious banking account that he knew he did not
15 have and could not have with Depository Trust to
16 pay the balance of his Best Buy credit account with
17 HSBC Bank. That was plan A. He tried that plan
18 six different times. You heard the witness from
19 HSBC Bank, Eric Schumacker, testify as to each of
20 the six times the defendant tried that from
21 November 13, 2008, until December 2, 2008. Each
22 time unsuccessfully.
23 When plan A failed, the defendant formulated
24 and followed through on plan B, what he's referred
25 to as a bonded promissory note. You heard from

469
1 Matthew Johnson from the Department of Treasury
2 that that document was fictitious, had no legal
3 value, was not a negotiable instrument, essentially
4 wasn't worth the paper that it was printed on. It
5 was a scam, a scam similar to others identified by
6 other individuals who did the same thing following
7 information that was available on the public domain
8 on entities such as Yahoo, the Internet, and that
9 sort of thing. Also available on those different
10 Internet facilities, Yahoo, I think You Tube was
11 the other one, was exactly the information that the
12 government has established beyond a reasonable
13 doubt that there could be no way the defendant had
14 any reasonable belief, any good faith basis for
15 what has been said by the witnesses called on his
16 behalf that he believed he had a secret account,
17 trust account or otherwise, with the IRS.
18 You heard testimony from Anna Medlock who had
19 the unfortunate experience to somehow get on the
20 Internet, as the person that individuals who had
21 this false set of beliefs targeted as the person
22 they contacted to access what they call their
23 secret trust account.
24 You also heard testimony from Bradley Parker
25 from the Social Security Administration who

470
1 testified concerning the absolute untruth that
2 somehow a secret trust account exists with respect
3 to Social Security account numbers, each of us
4 presumably has a Social Security number, or the
5 alphanumeric number that's on the reverse side of
6 each of the Social Security cards. You heard
7 Special Agent Parker testify that in no way is that
8 alphanumeric number significant other than for
9 security control purposes as its placed on the
10 Social Security cards by the vendor to ensure that
11 that card stock makes it to the Social Security
12 Administration.
13 The defendant has two replacement cards. You
14 will get those in evidence. You will have the
15 opportunity to review them physically. One
16 laminated that he laminated, and the other that was
17 seized during the course of the search warrant
18 executed at his house on January 16, 2009. You
19 also heard testimony from Joseph Kelly at the
20 Depository Trust that absolutely for whatever
21 reason unknown to Depository Trust they were
22 similarly identified as the entity that was the
23 holder of the secret account, the secret trust
24 account. Mr. Kelly testified that in absolutely no
25 way does Depository Trust provide any services as a

471
1 traditional bank would, checking, savings. I said
2 passbook savings, but that shows a little age here,
3 but anything with respect to individuals, that
4 essentially they are a bank for banks, a clearing
5 house for security transactions.
6 You also heard testimony from Matthew Johnson
7 from the Department of Treasury who identified that
8 while there are numerous individuals who also
9 follow this misguided -- and I say misguided at
10 best -- belief system that it is absolutely
11 100 percent not legitimate. No basis. No basis in
12 fact, no basis in the law that the documents, the
13 bonded promissory notes, or whatever they're called
14 in whatever context, have no legal effect, do not
15 transfer monies, are not negotiable instruments.
16 You heard some testimony from HSBC. In fact,
17 Mr. Schumacker testified that HSBC Bank went
18 through the transactions, the screen shots or
19 computerized images which also are in evidence, and
20 detailed for each of you each of the transactions,
21 the six separate occasions when they occurred, the
22 routing number that was provided, the account
23 number that was provided, the check number, whether
24 those transactions occurred by way of the defendant
25 calling in or using the automatic telephonic system

472
1 that security information was requested. There's
2 some suggestion here that the defendant was not the
3 individual who entered those transactions either by
4 the phone or spoke with a representative. Two of
5 his family members testified here. You may recall
6 their testimony. I asked them specifically were
7 you the person that made those calls, or were you
8 present when that happened? Absolutely not. No.
9 Absolutely not. The security information that was
10 requested from the defendant was that which
11 identified him as the account holder. You also
12 heard testimony from Mr. Schumacker that in the
13 event that the representative had any question
14 about the individual who was contacting the
15 representative, that that person would have been
16 identified as a third-party. Information would not
17 have been provided or obtained from that
18 individual, because they were not the account
19 holder.
20 There was some suggestion during one of the --
21 I believe it was the cross-examination, and the
22 phrase was used by the defendant, let's not go down
23 the rabbit hole. Today's the opening of Alice in
24 Wonderland. I'm not sure if everyone realizes
25 that. The government is asking you not to go down

473
1 that rabbit hole also.
2 Think about the testimony of the individuals
3 with respect to the reasonableness of the claim
4 that it was not the defendant who made those calls,
5 whether the transactions were called by speaking
6 with a person or using the automated system. Think
7 about the testimony not only of the Best Buy
8 representative, James Sauer, who detailed for the
9 jury each of the purchases made by the defendant.
10 What it was, what the timing was, how it was paid,
11 the mechanism by which it was paid, either by the
12 credit card being presented directly, or if the
13 credit card wasn't available that the defendant
14 would have had to input his Social Security number
15 as an identifier to access that credit account.
16 It's clear that all of the merchandise that are
17 set forth in those transactions was seized during
18 the course of the search warrant executed at the
19 defendant's house, on January 16th, 2009. So
20 there's no dispute that the defendant ended up with
21 it, somehow ended up with it at his family's
22 residence. Think about the timing of the
23 transactions. November 13 was the first one.
24 Think about the transaction on 23, 22, 24, 25, and
25 December 2, 2008, in the context of the major

474
1 purchases made by the defendant of large-ticket
2 items that ultimately ended up in his residence.
3 If it wasn't the defendant, who was it? If the
4 defendant wasn't the person who was actually
5 speaking and communicating with HSBC, who was it?
6 How would the defendant have known if he hadn't
7 attempted for those fraudulent payments to be made
8 to HSBC to go and buy more because his credit limit
9 had temporarily now been lifted, so he had more
10 available credit to make those purchases? If it
11 wasn't the defendant, who was it?
12 As I said, when plan A didn't work, he moved on
13 to plan B. Think about the timing of plan B. It
14 was only after the defendant was interviewed this
15 time in person by Special Agent Falkowski, did the
16 defendant contact the HSBC fraud department to
17 check concerning the status of the purported
18 payment by bonded promissory note. That promissory
19 note was not even filed until after the last
20 attempt was made by the defendant to fraudulently
21 have his account paid by a nonexistent fraudulent,
22 fictitious account at Depository Trust. You'll
23 have the opportunity to look at each of the
24 exhibits as they come back with you to the jury
25 room during the course of your deliberations. The

475
1 government asks you to please look at those
2 carefully, look at the specific dates, put together
3 a timeline. We've done our best to do that for you
4 with respect to the various witnesses that we've
5 called to testify here to sort of give you the
6 framework so that you understand that it had to
7 have been the defendant who not only formulated
8 this scheme, but acted upon it, and when it was
9 unsuccessful, he shifted yet another way to not be
10 responsible for paying for those items that he
11 actually had in his possession.
12 We're asking you to find the defendant guilty
13 of bank fraud. Please do your duty and do so.
14 Thank you.
15 THE COURT: Okay, Miss Baumgarten, thank
16 you very much. Okay, Mr. Buczek if you would
17 please.
18 MR. BUCZEK: Okay. First of all, I want
19 to thank every one of you for coming here. I'm
20 sorry about wasting four days of your life, but
21 hopefully you learned something. You've been very
22 patient, and I can see you're listening, and I hope
23 you do your research and find out the truth.
24 After we're done, Judge Skretny will instruct
25 you on the law, especially on the issues of good

476
1 faith. The Judge will tell you that good faith is
2 a reasonable defense to this case, and that a
3 statement made with good faith belief in its
4 accuracy does not amount to a false statement, that
5 is not a crime. This is true even if the statement
6 is not erroneous. The Judge will say that if the
7 defendant believed in good faith that he was acting
8 properly, even if he made a mistake or mistakenly,
9 his belief system -- which you know my belief
10 system by now -- even if others were -- even if
11 others might think they might have been injured,
12 and I want to stop right there before I continue,
13 is that throughout the proceedings of Tuesday,
14 Wednesday I've asked every eyewitness to please
15 produce a claim against me. Does anybody have a
16 claim, and I repeated that several times. I don't
17 recall anybody stating they had a claim against me.
18 Also, lastly -- lastly he will remind you --
19 this is the Judge -- lastly, the Judge will remind
20 you that the burden to establish a lack of good
21 faith and criminal intent rises upon the
22 prosecution, and that I'm under no burden of
23 proof -- my good faith. Rather, the prosecution
24 must prove bad faith or knowledge of falsely beyond
25 a reasonable doubt. That is the law that the Judge

477
1 will instruct you on.
2 You have a good -- you have heard a lot about
3 my belief system, and, boy, would I love to tell
4 you so much more. You might be here for a couple
5 more weeks, but I'm not going to do that to you. I
6 only wish I had the opportunity to put stuff on the
7 screen like the government did. I didn't have that
8 opportunity. I was shut down, and I had
9 eyewitnesses that I wanted to put on the stand. I
10 was shut down. You have heard a lot about my
11 belief system, and I'll leave it at that. You have
12 heard about my seminars, and I could spend days
13 with you on that. And the publications, Modern
14 Money Mechanics, Two Faces of Debt, the issue of
15 the gold and silver, which we know has exploded
16 over the last six years, and the economy is almost
17 ready to collapse. I've been warning people like
18 this since 2003 about this, and everybody laughed
19 at me, and laughed at me, and it's happening right
20 now. Do you see anybody doing anything about it?
21 No, not at all.
22 Well, some people are, and I'm trying to change
23 that. I'm trying to help people stop this nonsense
24 what's going on with the banking system and the
25 Federal Reserve.
478
1 We talked briefly on the birth certificate with
2 the DTC and my belief system. We briefly touched
3 on the bonded promissory notes, how banks only
4 accept promissory notes, and it's even printed by
5 the Federal Reserve system on page 5 and 6 of the
6 document called Modern Money Mechanics. There is
7 not a good-faith, but a strong good-faith belief
8 that I have. I even think that if people learn
9 this, we might be able to wipe out the national
10 debt.
11 I submit to you, ladies and gentlemen, that the
12 government has not even come close to proving any
13 type of intent. I even believe people in the
14 government know there is no intent. I think the
15 people in the government want to come forward and
16 tell you the truth, but they're controlled. On the
17 contrary, the evidence supports the fact that I
18 believe in what I was doing, that it was definitely
19 in good faith, and that there was not even close to
20 a crime. It's kind of like flip-flop. It's the
21 other way around. If people would just figure out
22 what's going on, we could wipe out all this
23 nonsense today.
24 The government never even produced one
25 eyewitness with firsthand knowledge of anything.

479
1 It's just a dog and pony show, like the Walt Disney
2 World special on Disney TV, and no -- no
3 complaints, no injured parties, and my
4 eyewitnesses -- to finish up, my eyewitnesses came
5 here to validate my belief system, my educational
6 seminars that I've gone to, and there's been a lot
7 of them. And I just only wish I had more time with
8 you guys. I wish I could help you guys, and that's
9 all I do. And I strongly believe that -- that you
10 didn't get everything you needed here in this
11 trial. But I'll leave it all in your hands, and
12 it's up to you. That's all I can say. It's up to
13 you, and it's up to you to change what's going on
14 out there. Whatever happens to me, don't worry
15 about me, worry about yourself. Because we're the
16 only ones, we the people are the only ones that can
17 change the nonsense and corruption that's going on
18 out there.
19 I will leave it with that. Thank you so much
20 for being here, and I'm sorry about wasting your
21 four days. Thank you.
22 THE COURT: Thank you, Mr. Buczek.
24 THE COURT: You're welcome. Any rebuttal?

480
1 THE COURT: Okay. Ladies and gentlemen,
2 you have heard the closing arguments, and the
3 purpose of the closing arguments is to assist you
4 in your very important function, and that is to
5 decide this case. And I'm going to give you the
6 full charge, full instruction in the law. A lot of
7 it will be what you've heard in part before, but
8 we're going to put it together. It becomes the
9 fabric for you to apply in this particular case.
10 So do the best you can to stay with me, and once
11 we're done with the instruction, I will meet with
12 the attorneys, we'll see if there's any comments or
13 corrections that have to be made. But I want you
14 to have everything that, at least from my
15 standpoint, I think you will need in terms of the
16 law to carry out your function and decide this case
17 on the rules that must apply. And your verdict
18 must be unanimous. And you must apply, as we've
19 talked about in the beginning, your common sense,
20 your experience, your intelligence in getting this
21 case resolved.
22 It's your final duty now and you are to decide
23 the fact issues. In my judgment, and it's been
24 mentioned here, you have paid great attention, and
25 that's a faithful discharge, at least up to this

481
1 point, of what your duty is, and that is to serve
2 as judges of the facts, and to get into the issues
3 of the essential elements and whether the
4 government has proven its case beyond a reasonable
5 doubt.
6 All the evidence is now in. My duty now is to
7 instruct you in the law. You are required, under
8 the rules that apply, to accept my instructions of
9 the law and apply these instructions to the facts
10 as you determine them to be. And that's the key,
11 you determine the facts in resolve of the fact
12 issues in this particular case. I presided over
13 the trial to the best that I've been able to do,
14 but the manner in which I have done that does not
15 and should not influence you. You must decide the
16 case from the testimony and the evidence and the
17 relevant law, and that's all now before you for
18 your consideration. You must take the law as I
19 give it to you. And once again, I repeat that if
20 anybody has referenced the law that doesn't sound
21 right to you once I instruct you on the law now,
22 you must accept what I give you as the controlling
23 law in this case. The other thing is that there's
24 a lot that I will go through, but it's the total
25 package that's the law. And it breaks down into

482
1 elements. It breaks down into specific topics.
2 But the totality is the law, and not one part, not
3 any one part of the instruction is more important
4 than any other part. The totality is what must
5 drive you in the jury room, and you must consider
6 my instructions as a whole when you retire to that
7 jury room.
8 Also, you should not be concerned about the
9 wisdom of any rule of law that I state, regardless
10 of any opinion that you may have as to what the law
11 may be, or ought to be. It would violate your
12 sworn duty to base a verdict upon any other view of
13 the law than that which I am about to give you.
14 Your final role is to pass upon and decide the fact
15 issues that are in this case. You heard that from
16 the very outset.
17 You, ladies and gentlemen, are the sole and
18 exclusive judges of the facts. You pass upon the
19 weight of the evidence. You determine the
20 credibility of the witnesses. You resolve such
21 conflict as there may be in the testimony, and you
22 are permitted and may draw whatever reasonable
23 inferences you decide to draw from the facts as you
24 have determined them.
25 Later I'm going to discuss with you how to pass

483
1 upon the credibility or the believability of the
2 witnesses. And in determining the facts you must
3 rely upon your own recollection of the evidence.
4 What Mr. Buczek or the prosecutor have said in
5 their opening statements, in their closing
6 arguments, in their objections, in their questions,
7 discussions we've had in the courtroom, that's not
8 evidence.
9 In this connection, you should bear in mind
10 that a question put to a witness is never evidence.
11 It is only the answer which is evidence. Nor is
12 anything I may have said during the trial or may
13 say during these instructions with respect to a
14 fact matter to be taken in substitution for your
15 own independent recollection. What I say is not
16 the evidence. What I give you though is the law.
17 The evidence before you consists of the answers
18 given by witnesses, the testimony they gave as you
19 recall it, and the exhibits that were received in
20 evidence. The evidence does not include questions,
21 only the answers. But you may not consider any
22 answer that I directed you to disregard or that I
23 directed struck from the record. Do not consider
24 such answers. And if you recall, we did that a
25 couple of times.
484
1 You may also -- let me start that again. Since
2 you are the sole and exclusive judges of the facts,
3 I do not mean to indicate any opinion as to the
4 facts or what your verdict should be. The rulings
5 I have made during the trial are not any indication
6 of my views of what your decision should be as to
7 whether or not the guilt of the defendant has been
8 proven beyond a reasonable doubt in this case. I
9 also ask you to draw no inference from the fact
10 that on occasion I did ask some questions of
11 certain witnesses. These questions were only
12 intended to clarify or to expedite matters, and
13 they were not intended to suggest any opinions on
14 my part as to the verdict you should render, or
15 whether any of the witnesses may have been more
16 credible than any other witness. You are expressly
17 to understand that I have no opinion as to the
18 verdict you should render in this case.
19 Your verdict, once again, must be unanimous.
20 As to the facts, ladies and gentlemen, you again
21 are the exclusive judges of those facts. You are
22 to perform your duty of finding the facts without
23 bias or prejudice as to any party, either side. In
24 determining the facts, you are reminded that before
25 each of you were sworn to act as a juror, you were

485
1 asked questions concerning competency,
2 qualifications, fairness, and freedom from
3 prejudice and bias. On the faith of those answers,
4 each of you was accepted by the parties.
5 Therefore, the answers that you gave are as binding
6 on each of you now as they were then, and should
7 remain so until you are discharged from
8 consideration in this case. You are to perform the
9 duty of finding the facts without bias or prejudice
10 as to any party. You are to perform your final
11 duty in an attitude of complete fairness and
12 impartiality.
13 The case is important to the government,
14 because the enforcement of criminal laws is a
15 matter of prime concern to the community. Equally
16 it is important to the defendant who is charged
17 with a serious crime. The fact that the
18 prosecution is brought in the name of the United
19 States of America entitles the government to no
20 greater consideration than that accorded to any
21 other party to a litigation. By the same token, it
22 is entitled to no less consideration. All parties,
23 whether government or individuals, stand as equals
24 at the bar of justice.
25 Now, Mr. Buczek as you know, has chosen to

486
1 proceed as we term it, pro se in this case, that
2 is, he is the lawyer for himself. He has chosen to
3 represent himself. And every criminal defendant
4 has the right to represent himself or herself in a
5 criminal case or a criminal matter. You should
6 draw no inference from the fact that he, Mr.
7 Buczek, has chosen to exercise his right, nor
8 should you attach any particular significance to
9 what he did in representing himself. You may not
10 consider that fact of his representation by himself
11 in any way in your deliberations in the jury room
12 against Mr. Buczek.
13 Now, it is proper for the prosecutor and
14 Mr. Buczek to object when the other side offers
15 testimony or other evidence. And that usually
16 takes place when there is a good-faith belief that
17 what is being heard or introduced is not properly
18 admissible. They have the right to ask me to make
19 rulings of law and request conferences at, as
20 you've seen us do, side bar, accompanied by some
21 white noise, out of your hearing. All the
22 questions of law must be decided by me. You should
23 not show prejudice against Mr. Buczek or the
24 prosecutor because they objected to the
25 admissibility of evidence, or asked for a

487
1 conference outside of your hearing, or asked me for
2 a ruling on the law. As I have already indicated,
3 my rulings on the admissibility of evidence do not
4 indicate any opinion about the weight or affect of
5 such evidence.
6 You are the sole judges of the credibility of
7 all witnesses, and the weight and affect of all
8 evidence. Under your oath as jurors, you are not
9 to be swayed by sympathy. You are to be guided
10 solely by the evidence in this case. And the
11 crucial, hard core question that you must ask
12 yourselves as you sift through the evidence is, has
13 the government proven the guilt of the defendant
14 beyond a reasonable doubt? It is for you alone to
15 decide whether the government has proven that
16 Mr. Buczek is guilty of the crime charged solely on
17 the basis of the evidence and subject to the law as
18 I instruct you. It must be clear to you that once
19 you let fear or prejudice or bias or sympathy
20 interfere with your thinking, there is a risk that
21 you will not arrive at a true and just verdict.
22 If you have a reasonable doubt as to
23 Mr. Buczek's guilt, you should not hesitate for any
24 reason to find a verdict of acquittal. But on the
25 other hand, if you should find that the government

488
1 has met its burden of proving the defendant's guilt
2 beyond a reasonable doubt, you should not hesitate
3 because of sympathy or any other reason to render a
4 verdict of guilty.
5 The question of possible punishment of
6 Mr. Buczek is no concern to you, and should not in
7 any sense enter into or influence your
8 deliberations. The duty of imposing a sentence
9 rests exclusively with me. Your function is to
10 weigh the evidence in the case and to determine
11 whether or not Mr. Buczek is guilty beyond a
12 reasonable doubt solely upon the basis of such
13 evidence. And under your oath as jurors you cannot
14 allow a consideration of the punishment which may
15 be imposed upon the defendant if he is convicted to
16 influence your verdict in any way or in any sense
17 enter into your deliberations.
18 I'm going to explain shortly the elements of
19 the offense or the crime that's involved with the
20 charge against Mr. Buczek here. I've done that
21 before, but in the context of this total charge
22 I'll do it again. But I wanted to take a brief
23 time and discuss with you the basis upon what your
24 verdict must rest. In sum, your verdict must only
25 be based upon the evidence introduced in this case.

489
1 The evidence, again, consists of the sworn
2 testimony of the witnesses and the exhibits
3 received in evidence. Exhibits which have been
4 marked for identification but not received into
5 evidence may not be considered by you as evidence.
6 Only those exhibits received may be considered as
7 evidence. The testimony about those exhibits
8 though that may not have been received is proper
9 for you to consider if it was not objected to.
10 Similarly, you are to disregard any testimony
11 when I have ordered it to be stricken. As I
12 mentioned to you before, only the witness's answers
13 are evidence, and you are not to consider a
14 question as evidence. Similarly, statements by
15 Mr. Buczek in his capacity as his own attorney, and
16 statements by the prosecutor, you already know and
17 it holds true, they are not evidence. You should
18 consider the evidence in light of your common
19 sense, your experience, your intelligence, and you
20 may draw reasonable inferences from the evidence.
21 Anything you may have seen or heard about the case
22 outside the courthouse is not evidence and must be
23 entirely disregarded.
24 Now, I'm going to emphasize once again that the
25 questions of either Mr. Buczek or the prosecutor,

490
1 it's not evidence. At times on cross-examination
2 one of them may have incorporated into a question a
3 statement which assumed certain facts to be true
4 and asked the witness if the statement was true.
5 If the witness denies the truth of a statement and
6 if there is no evidence in the record proving that
7 the assumed fact is true, then you may not consider
8 the fact to be true simply because it was contained
9 in the question. And you know that goes back to an
10 old famous example lawyers use in trials, and
11 basically that question is when did you stop
12 beating your spouse? And you would not be
13 permitted to consider as true the assumed fact that
14 the person beat the spouse unless the witness in
15 the case, himself or herself, indicated that he or
16 she had, or unless there is some other evidence in
17 the record that a spouse had beaten the other. In
18 short, questions are not evidence. Answers are.
19 And there are two types of evidence in deciding
20 whether or not a defendant is guilty or not. One
21 is direct evidence, and that was where a witness
22 testifies to what he or she saw, heard, or
23 observed. In other words, when a witness testified
24 about what is known to him or her of his or her own
25 knowledge by virtue of that person's own senses,

491
1 then what he or she sees, feels, touches, or hears,
2 that's what's called direct evidence.
3 Circumstantial evidence is evidence which tends
4 to prove a disputed fact by proof of other facts.
5 There is a simple example of circumstantial
6 evidence. We've talked about it once before, and
7 that's when, in a good weather day, coming into the
8 courthouse, and when you're inside the blinds are
9 drawn like they are in this particular courtroom,
10 and you were sitting there and somebody came in
11 with an umbrella and was dripping wet, and somebody
12 else walked in with a raincoat which was also
13 dripping wet. Well, you cannot look outside, and
14 you cannot see whether it's raining, but -- and you
15 have no direct evidence of that fact, but when you
16 put those combination of facts together, which you
17 are permitted to assume, it would be reasonable and
18 logical for you to conclude that it had been
19 raining outside. And that's really what we're
20 talking about when we talk about circumstantial
21 evidence. You infer on the basis of reason and
22 experience and common sense from an established
23 fact the existence or the nonexistence of some
24 other fact. Circumstantial evidence is of no less
25 value than direct evidence, for it is a general

492
1 rule that the law makes no distinction between
2 direct and circumstantial evidence, but simply
3 requires that before convicting a defendant you,
4 the jury, must be satisfied of a defendant's guilt
5 beyond a reasonable doubt from all of the evidence
6 in the case.
7 Now, we've talked about inference, and you may
8 have heard it during the course of the trial or in
9 earlier remarks, and you may have been asked to
10 infer certain things on the basis of your reason,
11 experience, and common sense from one or more
12 established facts the existence of some other fact.
13 So for your purposes, ladies and gentlemen, an
14 inference is not a suspicion or a guess. Here's
15 what it is, it is a reasoned, logical decision to
16 conclude that a disputed fact exists on the basis
17 of another fact which you know exists. There are
18 times when different inferences may be drawn from
19 facts, whether proved by direct or circumstantial
20 evidence, and the government asks you to draw one
21 set of inferences, while the defense asks you to
22 draw another. It is for you and you alone to
23 decide which or what inferences you will draw. The
24 process of drawing inferences from facts in
25 evidence is not and should not be a matter of

493
1 guesswork or speculation. By definition an
2 inference is a deduction or conclusion which you,
3 the jury, are permitted to draw but not required to
4 draw from the facts which have been established by
5 either direct or circumstantial evidence, and in
6 drawing inferences, you should exercise your common
7 sense, your intelligence, your experience. So
8 while you are considering the evidence presented to
9 you, you are permitted to draw from the facts which
10 you find to be proven such reasonable inferences as
11 would be justified in light of your experience.
12 And here again, let me remind you that whether
13 based upon direct or circumstantial evidence, or
14 upon the logical, reasonable inferences drawn from
15 such evidence, you must be satisfied of the guilt
16 of the defendant beyond a reasonable doubt before
17 you can convict.
18 Now, you heard witnesses from both sides in
19 this case, and the fact that one party may have
20 called more witnesses and introduced more evidence
21 than the other, that should not and does not mean
22 that you should necessarily find the facts in favor
23 of the side offering the most witnesses. By the
24 same token, you do not have to accept the testimony
25 of any witness who has not been contradicted, or

494
1 impeached if you find that witness not to be
2 credible or believable.
3 You always have to decide which witnesses to
4 believe and which facts are true. To do this, you
5 must look at all the evidence drawing upon your own
6 common sense and personal experience, and after
7 examining all the evidence, you may decide that the
8 party calling the most witnesses has not persuaded
9 you, because you do not believe its witnesses or
10 because you do believe the fewer witnesses called
11 by the other side. So keep in mind that the burden
12 of proof is always on the government, and the
13 defendant is not required to call any witnesses or
14 offer any evidence since he is presumed to be
15 innocent.
16 You have heard the testimony of at least one
17 law enforcement official, that was the FBI agent.
18 And the fact that a witness may be employed by the
19 federal government -- and there was more than one
20 federal government employee -- as a law enforcement
21 official does not mean that his or her testimony is
22 necessarily deserving of more or less consideration
23 or greater or lesser weight than that of an
24 ordinary witness. At the same time it is quite
25 legitimate for the defense to try to attack the

495
1 believability or the credibility of a law
2 enforcement witness on the grounds that his or her
3 testimony may be colored by a personal or
4 professional interest in the outcome of the case.
5 It is your decision, after reviewing all the
6 evidence, whether to accept the testimony of the
7 law enforcement witness and to give that testimony
8 whatever weight, if any, you find it deserves. You
9 have had an opportunity to observe all of the
10 witnesses. Now it's your job to decide how
11 believable each witness was in his or her
12 testimony. You, again, are the sole judges of the
13 credibility of each witness and of the importance
14 of his or her testimony.
15 It must be clear to you by now that you are
16 being called upon to resolve the various factual
17 issues under the indictment in the face of very
18 different pictures painted by the government and
19 the defense which cannot be reconciled. You will
20 now have to decide where the truth lies, and an
21 important part of that decision will involve making
22 judgments about the testimony of the witnesses you
23 have listened to and observed. In making those
24 judgments, you should carefully scrutinize all of
25 the testimony of each witness, the circumstances

496
1 under which each witness testified, and any matter
2 in evidence which may help you decide the truth and
3 the importance of each witness's testimony.
4 Your decision whether or not to believe a
5 witness may depend on how the witness impressed
6 you. Was the witness candid, frank, and
7 forthright? Or did the witness seem as if he or
8 she was hiding something, being evasive, or suspect
9 in some way? How did the way the witness testified
10 on direct examination compare with how the witness
11 testified on cross-examination? Was the witness
12 consistent in his or her testimony, or did he or
13 she contradict himself or herself? Did the witness
14 appear to know what he or she was talking about,
15 and did the witness strike you as someone who was
16 trying to report his or her knowledge accurately?
17 How much you choose to believe a witness may be
18 influenced by the witness's bias. Does the witness
19 have a relationship with the government or with the
20 defendant which may affect how he or she testified?
21 Does the witness have some incentive, loyalty, or
22 motive that might cause him or her to shade the
23 truth? Or does the witness have some bias,
24 prejudice, or hostility that may have caused the
25 witness, consciously or not, to give you something

497
1 other than a completely accurate account of the
2 facts he or she testified to? Even if the witness
3 was impartial, you should consider whether the
4 witness had an opportunity to observe the facts he
5 or she testified about, and you should also
6 consider the witness's ability to express himself
7 or herself. Ask yourselves whether the witness's
8 recollection of the facts stands up in light of all
9 other evidence. In other words, what you must try
10 to do in deciding believability or credibility is
11 to size a person up in light of his or her
12 demeanor, the explanations given, and in light of
13 all the other evidence in the case, just as you
14 would in an important matter where you are trying
15 to decide if a person is truthful, straightforward,
16 and accurate in his or her recollection. In
17 deciding the question of credibility, remember that
18 you should use your common sense, your good
19 judgment and your experience.
20 In evaluating the credibility or the
21 believability of witnesses, you should take into
22 account any evidence that the witness who testified
23 may benefit in some way from the outcome of this
24 case. Such an interest in the outcome creates a
25 motive to testify falsely and may sway the witness

498
1 to testify in a way that advances his own
2 interests. Therefore, if you find that any witness
3 whose testimony you are considering may have an
4 interest in the outcome of this trial, then you
5 should bear that factor in mind when evaluating the
6 credibility of his or her testimony and accept it
7 with great care. This is not to suggest that every
8 witness who has an interest in the outcome of the
9 case will testify falsely. It is for you to decide
10 to what extent, if at all, the witness's interests
11 has affected or colored his or her testimony.
12 In connection with your evaluation of the
13 credibility of the witnesses, you should
14 specifically consider evidence of resentment or
15 anger which some government witnesses may have
16 toward the defendant. Evidence that a witness is
17 biased, prejudiced, or hostile toward the defendant
18 requires you to view that witness's testimony with
19 caution, to weigh it with care, and subject it to
20 close and searching scrutiny.
21 Although Mr. Buczek has been indicted, you must
22 remember that an indictment is only an accusation.
23 It is not evidence. A not guilty plea has been
24 entered to that indictment. As a result of that
25 not guilty plea, the burden is on the prosecution

499
1 to prove guilt beyond a reasonable doubt. This
2 burden never shifts to Mr. Buczek for the simple
3 reason that the law never imposes upon a defendant
4 in a criminal case the burden or duty of calling
5 any witness or producing any evidence. The law
6 presumes a defendant to be innocent of all the
7 charges against him. I therefore instruct you,
8 once again, that the defendant is to be presumed by
9 you to be innocent throughout your deliberations,
10 until such time, if ever, you as a jury are
11 satisfied that the government has proven the
12 defendant guilty beyond a reasonable doubt.
13 Mr. Buczek began the trial here with a clean
14 slate. The presumption of innocence alone is
15 sufficient to acquit him, unless you as jurors are
16 unanimously convinced beyond a reasonable doubt of
17 his guilt after a careful and impartial
18 consideration of all of the evidence in this case.
19 If the government fails to sustain its burden, you
20 must find the defendant not guilty. This
21 presumption was with the defendant when the trial
22 began and remains with him even now as I speak to
23 you, and will continue with the defendant into your
24 deliberations unless and until you are convinced
25 that the government has proven his guilt beyond a

500
1 reasonable doubt.
2 All right. Again, common sense, experience,
3 intelligence -- and this is repetitious, I know,
4 but applying those fundamental concepts or
5 principles will help you understand all of this,
6 and then enable you to apply it to make the proper
7 judgment based on the evidence or lack of evidence
8 in this case.
9 Now I've said to you that the government must
10 prove Mr. Buczek guilty beyond a reasonable doubt.
11 The question then naturally I think is what is a
12 reasonable doubt? And let me define that for you.
13 And the words themselves basically define what
14 reasonable doubt is. It is a doubt based upon
15 reason and common sense. It is a doubt that a
16 reasonable person has after carefully weighing all
17 of the evidence. It is a doubt which would cause a
18 reasonable person to hesitate to act in a matter of
19 importance in his or her personal life. Proof
20 beyond a reasonable doubt must, therefore, be proof
21 of such a convincing character that a reasonable
22 person would not hesitate to rely and act upon it
23 in the most important of his own affairs. A
24 reasonable doubt then is not a caprice or a whim.
25 It is not speculation or suspicion. It is not an

501
1 excuse to avoid the performance of an unpleasant
2 duty, and it is also not sympathy.
3 In a criminal case, the burden is always on the
4 government to prove a defendant guilty beyond a
5 reasonable doubt. The law does not require that
6 the government prove guilt beyond all possible
7 doubt. Proof beyond a reasonable doubt is
8 sufficient to convict. The burden never shifts to
9 the defendant, which means that it is always the
10 government's burden to prove each of the essential
11 elements of the crime charged beyond a reasonable
12 doubt. And if after fair and impartial
13 consideration of all the evidence you have a
14 reasonable doubt, ladies and gentlemen, it is your
15 duty to acquit the defendant. On the other hand,
16 if after fair and impartial consideration of all
17 the evidence you are satisfied of the defendant's
18 guilt beyond a reasonable doubt, you should vote to
19 convict.
20 Now, Mr. Buczek did not testify in this case,
21 and under our constitution he has no obligation to
22 do that, to testify. He does not have the
23 obligation to present any other evidence because
24 why? It's the prosecution's burden to prove him
25 guilty beyond a reasonable doubt. It never shifts.

502
1 It remains with the government, and the defendant
2 is never required to prove that he is innocent.
3 And you may not attach any significance to the
4 fact that Mr. Buczek did not testify in this case.
5 No adverse inference against him may be drawn by
6 you because he did not take the witness stand. You
7 may not consider this against him in any way in
8 your deliberations in the jury room. All right.
9 Once again, the indictment is not evidence.
10 We're going to talk about the indictment
11 specifically. It is a description of the charge
12 against Mr. Buczek. It's an accusation. But you
13 may not in any way consider it to be evidence of
14 the guilt of Mr. Buczek. In reaching your
15 determination of whether the government has proven
16 the defendant guilty beyond a reasonable doubt,
17 once again, you may only consider the evidence
18 introduced or the lack of evidence. So lets get to
19 the indictment once again and then wrap up the
20 instruction to you.
21 Everybody okay? Still with me?
22 Okay. It charges Shane C. Buczek with
23 executing and attempting to execute a scheme to
24 defraud a federally insured bank, and the
25 indictment reads specifically as follows: That

503
1 from on or about September 18th, 2008, to on or
2 about January 16th, 2009, in the Western District
3 of New York and elsewhere, defendant, Shane C.
4 Buczek, unlawfully, willfully, and knowingly
5 executed and attempted to execute a scheme and
6 artifice to defraud and to obtain the money, funds,
7 credits, assets, and other property owned by and
8 under the control of a financial institution,
9 namely HSBC, NA, an institution which had its
10 deposits insured by the FDIC, the Federal Deposit
11 Insurance Corporation.
12 That is to say, that on or about
13 September 18th, 2008, the defendant opened a credit
14 account at Best Buy in Hamburg, New York, which
15 account had a credit limit of $3,100, and which
16 account was actually a VISA account with HSBC.
17 Thereafter, the defendant used the account to
18 purchase various items from Best Buy which
19 purchases approximately equalled the defendant's
20 3300-dollar credit limit. Then on or about
21 November 13th, 17th, 24th, 25th, and 28th, and
22 again on December 2nd, 2008, in efforts to
23 replenish his line of credit, the defendant
24 contacted HSBC's check direct department to pay
25 down his balance, each time by supplying HSBC with

504
1 a routing number of Depository Trust and Clearing
2 Corporation, DTCC, of New York City, and an account
3 number of an account in the defendant's name at
4 DTCC, and directing HSBC to debit that account to
5 pay the defendant's outstanding balance. In truth
6 and, in fact, the indictment says, the defendant
7 did not have and knew he did not have an account at
8 the Depository Trust Clearing Corporation, and knew
9 that in supplying HSBC with the routing number for
10 DTCC and that account number for an account at DTCC
11 in his name, the defendant was providing HSBC with
12 false information for the purpose, among others, of
13 temporarily returning his line of credit to or near
14 to its $3,300 limit so that he could make
15 additional purchases from Best Buy. Then following
16 each instance in which he supplied HSBC with DTCC's
17 routing number and the number of the nonexistent
18 account at DTCC, the defendant made further
19 purchases from Best Buy, knowing that by employing
20 the scheme outlined above he was enriching himself
21 with Best Buy merchandise knowing full well that
22 HSBC would never be paid for the defendant's
23 purchases from Best Buy. All in violation of
24 Section 1344 of Title 18 of the United States Code.
25 And I remind you once again this is just the

505
1 indictment, it's not evidence. It merely describes
2 the charges or the charge against the defendant in
3 this case. It's only an accusation.
4 Three elements. Remember that, three essential
5 elements that have to be proven in this case.
6 First, that there was a scheme to obtain money or
7 funds owned or under the custody or control of a
8 bank by means of materially false or fraudulent
9 pretenses, representations or promises as charged
10 in the indictment; second, that the defendant
11 executed or attempted to execute the scheme with
12 the intent to defraud the bank; and third, that at
13 the time of the execution of the scheme, the bank
14 had its deposits insured by the Federal Deposit
15 Insurance Corporation.
16 Let's talk a little bit about the first
17 element, scheme to defraud. The government must
18 prove it beyond a reasonable doubt, and that is
19 there was a scheme to obtain money or property
20 owned by or under the custody and control of a
21 bank, HSBC in this case, by means of false or
22 fraudulent presentences, representations, or
23 promises, as described in the indictment. The
24 first element is almost self-explanatory.
25 A scheme or artifice is merely a plan for the

506
1 accomplishment of an object. A scheme to defraud
2 is any plan, device, or course of action to obtain
3 money or property by means of false or fraudulent
4 presentences, representations, or promises,
5 reasonably calculated to deceive persons of average
6 prudence. Fraud is a general term which embraces
7 all the various means by which human ingenuity can
8 devise and which are resorted to by an individual
9 to gain an advantage over another by false
10 representations, suggestions, or suppression of the
11 truth, or deliberate disregard for the truth. So,
12 a scheme to defraud is merely a plan to deprive
13 another of money or property by trick, deceit,
14 deception or swindle.
15 It's the government's theory in this case that
16 by falsely telling employees of HSBC's check direct
17 department that he, Mr. Buczek, had an account with
18 the Depository Trust and Clearing Corporation, and
19 then by directing those employees to debit or take
20 money directly from that nonexisting account, the
21 defendant was able to create the impression that
22 his account was paid off or nearly paid off, which
23 in turn gave him buying power under his $3,300
24 credit line, which he could use to make further
25 purchases from Best Buy, knowing all the while that

507
1 he did not have an account with the Depository
2 Trust, but that he could use the time necessary for
3 HSBC to discover the claimed Depository Trust
4 account was nonexistent to make further purchases.
5 A statement or representation is false if it is
6 untrue when made and was then known to be untrue by
7 the person making it or causing it to be made.
8 A representation or statement is fraudulent if
9 it was falsely made with the intention to deceive.
10 Deceitful statements or half-truths or the
11 concealment of material facts and the expression of
12 an opinion not honestly entertained may also
13 constitute false or fraudulent statement under the
14 statute. The deception need not be premised upon
15 spoken or written words alone. The arrangement of
16 the words or the circumstances in which they are
17 used may convey a false and deceptive appearance.
18 If there is a deception, the manner in which it is
19 accomplished is immaterial.
20 The false or fraudulent representation must
21 relate to a material fact or matter. A material
22 fact is one which would reasonably be expected to
23 be of concern to a reasonable and prudent person in
24 relying upon the representation or statement in
25 making a decision, for example, with respect to a

508
1 proposed investment. This means that if you find a
2 particular statement or fact to have been false,
3 you must determine whether that statement was one
4 that a reasonable person or investor might have
5 considered important in making his or her decision.
6 The same principle applies to fraudulent
7 half-truths or commissions of material fact. The
8 same principle applies to fraudulent half-truths or
9 omissions of material facts.
10 The representations which the government
11 charges were made as part of the scheme to defraud
12 are set forth in the indictment which I just read
13 to you. It's not required that every
14 misrepresentation charged in the indictment be
15 proved. It is sufficient if the prosecution proves
16 beyond a reasonable doubt that one or more of the
17 alleged material misrepresentations were made in
18 furtherance of the alleged scheme to defraud.
19 Although it is not necessary for the government
20 to prove an actual loss of funds by the bank, the
21 government must prove beyond a reasonable doubt
22 that by executing or attempting to execute the
23 scheme alleged in the indictment, the defendant
24 placed the bank at a risk of loss and that the bank
25 did not knowingly accept such a risk. However, the

509
1 government is not required to prove that the
2 defendant himself originated the scheme to defraud.
3 Furthermore, it is not necessary that the
4 government prove that the defendant actually
5 realized any gain from the scheme, or that he
6 intended -- or that the intended victim actually
7 suffered any loss.
8 In this case, it happens that the government
9 does contend that the proof establishes that
10 persons were defrauded and that he profited.
11 Although whether or not the scheme actually
12 succeeded is really not the question. You may
13 properly consider whether it succeeded in
14 determining whether the scheme existed, but you
15 don't have to do that.
16 A scheme to defraud need not be shown by direct
17 evidence, but may be established by all of the
18 circumstances and facts in the case. If you find
19 that the government has sustained its burden of
20 proof that a scheme to defraud as charged did exist
21 you next should consider the second element.
22 The government must prove beyond a reasonable
23 doubt the defendant executed or attempted to
24 execute the scheme knowingly, willfully, and with
25 specific intent to defraud the bank. What does

510
1 knowingly mean? It means to act voluntarily and
2 deliberately rather than mistakenly or
3 inadvertently. Willfully means to act knowingly
4 and purposefully with an intent to do something the
5 law forbids, that is to say with bad purpose either
6 to disobey or disregard the law. To act with
7 intent to defraud means to act willfully, and with
8 the specific intent to deceive for the purpose of
9 causing some financial loss to another. So the
10 question of whether a person acted knowingly,
11 willfully, and with intent to defraud is a question
12 of fact for you to determine like any other fact
13 question. This question involves one's state of
14 mind.
15 Direct proof of knowledge and fraudulent intent
16 is almost never available. It would be a rarer
17 case where it could be shown where a person wrote
18 or stated that as a given -- that as of a given
19 time in the past he committed an act with
20 fraudulent intent. Such direct proof is not
21 required. The ultimate facts of knowledge and
22 criminal intent, though subjective, may be
23 established by circumstantial evidence based upon a
24 person's outward manifestations, his words, his
25 conduct, his acts, and all the surrounding

511
1 circumstances disclosed by the evidence, and the
2 rationale or logical inferences that may be drawn
3 therefrom. Circumstantial evidence, if believed,
4 is of no less value than direct evidence, and in
5 either case the essential elements of the crime
6 charged must be established beyond a reasonable
7 doubt.
8 Now you've been instructed that in order to
9 sustain its burden of proof, the government must
10 prove that Mr. Buczek acted knowingly. And a
11 person acts knowingly if he acts intentionally and
12 voluntarily, and not because of ignorance, mistake,
13 accident, or carefulness. Whether the -- I'm
14 sorry, carelessness. Whether the defendant acted
15 knowingly may be proven by the defendant's conduct
16 and by all of the facts and circumstances
17 surrounding the case.
18 Now, you've also been instructed that in order
19 to sustain its burden of proof, the government must
20 prove that Mr. Buczek acted willfully. Willfully
21 means to act with knowledge that one's conduct is
22 unlawful and with the intent to do something the
23 law forbids, that is to say with a bad purpose to
24 disobey or to disregard the law. A defendant's
25 conduct was not willful if it was due to

512
1 negligence, inadvertence, or mistake.
2 The government must prove beyond a reasonable
3 doubt that Mr. Buczek acted intentionally when he
4 did the acts he is charged with in the indictment.
5 So before you can find Mr. Buczek acted
6 intentionally, you must be satisfied beyond a
7 reasonable doubt that he acted deliberately and
8 purposefully. That is, defendant's acts must have
9 been the product of his conscious objective rather
10 than the product of a mistake or accident.
11 And the last element the government must prove
12 beyond a reasonable doubt is that HSBC was insured
13 by the Federal Deposit Insurance Corporation at the
14 time of the execution of the alleged scheme to
15 defraud. It's not necessary for the government to
16 prove that defendant knew the identity of the
17 particular financial institution or that the
18 defendant knew that the institution was insured by
19 the FDIC. It must prove, however, that he intended
20 to defraud a financial institution.
21 Now, good faith is an absolute defense to the
22 charges in this case. A statement made with good
23 faith belief in its accuracy does not amount to a
24 false statement and is not a crime. This is so
25 even if the statement is, in fact, erroneous. If

513
1 Mr. Buczek believed in good faith that he was
2 acting properly, even if he was mistaken in that
3 belief, and even if others were injured by
4 misconduct, there would be no crime.
5 The burden of establishing lack of good faith
6 and criminal intent rests upon the prosecution, and
7 a defendant is under no burden to prove his good
8 faith, rather, the prosecution must prove bad faith
9 or knowledge of falsity beyond a reasonable doubt.
10 And in addition to the elements we've just
11 discussed as to the offense, you must consider
12 whether any act in furtherance of the crime
13 occurred within the Western District of New York.
14 And you are instructed that Erie County and the
15 city of Buffalo metropolitan area are within the
16 district's 17 county territorial area. In this
17 regard, the government need not prove that the
18 crime itself was committed in this district or that
19 defendant himself was present here. It is to
20 satisfy the element if any act in furtherance of
21 the crime occurred within this district. If you
22 find that the government failed to prove that any
23 act in furtherance of the crime occurred within
24 this district, or if you have a reasonable doubt on
25 this issue, then you must acquit.

514
1 And while we are on the subject of the
2 elements, I should draw your attention to the fact
3 that it does not matter if the indictment charges
4 that a specific act occurred on or about a certain
5 date and the evidence indicates that in fact it was
6 on another date. The law only requires a
7 substantial similarity between the dates alleged in
8 the indictment and the date established by
9 testimony or exhibits.
10 I'm going to be giving you a copy of the
11 indictment. You'll take it into the jury room with
12 you. You will have it during your deliberations.
13 You may use it, read it, to determine the precise
14 crime the defendant is charged with committing.
15 But remember, it's not evidence. It's only an
16 accusation, and it's not to be used by you as to
17 any proof of any of the conduct charged.
18 You will get, as you start your deliberations,
19 exhibits, the ones that were received that are
20 proper for you to consider. Keep in mind that we
21 will do anything we can to assist you in coming to
22 your unanimous verdict. You'll get the evidence,
23 I'm going to give you a copy of the charge that I
24 just read to you. Of course, that's not evidence,
25 but it's the law for you to apply.

515
1 If, when you discuss the testimony, you can't
2 resolve what the testimony actually was, if you
3 want us to look it up for you, we'll try to do
4 that. It takes some work, but if you work through
5 it, you usually get it. But if we can help, we'll
6 try to get Michelle to track it down.
7 If you are going to request anything, your
8 foreperson, whom you elect, must make the request
9 in writing. You'll have a notepad and some pencils
10 and things in the jury room. Any request requires
11 a note from the foreperson signed by the
12 foreperson. Our CSOs will be outside the
13 deliberation room, they'll take it, they'll carry
14 it to me. Usually I must respond to it in writing.
15 I'll try to get you what you want. If there's
16 anything more that we need to discuss, I'll bring
17 everybody back here and your foreperson will speak
18 for you, and we'll get the issue or the matter
19 resolved.
20 When and if you do come back here before the
21 verdict, don't tell me anything about your
22 deliberations, or if there was a preliminary vote,
23 don't tell me what the outcome of the vote was,
24 where you stand on the issue, or the vote. I
25 really shouldn't get any other information from you

516
1 until you come back with your unanimous verdict in
2 this case.
3 The government must prove the essential
4 elements beyond a reasonable doubt. If it does
5 that to your satisfaction unanimously, your verdict
6 should be guilty. If it fails, it should be not
7 guilty. To report a verdict in court it must be
8 unanimous. Your function is to weigh the evidence,
9 to determine whether or not the defendant is guilty
10 solely on the basis of the evidence or lack of
11 evidence.
12 Each juror, each of you, is entitled to his or
13 her own opinion. Each of you however should
14 exchange your views with your fellow jurors. That
15 is the very purpose of deliberation. Respect each
16 other, discuss and consider the evidence, listen to
17 the arguments of your fellow jurors. To present
18 your individual views, to consult with one another,
19 and to reach an agreement based solely and wholly
20 on the evidence if you can do so without violence
21 to your own individual judgment is what you are
22 charged with doing. Each of you must decide the
23 case for yourself and after consideration with your
24 fellow jurors of the evidence in the case. But,
25 you should not hesitate to change an opinion which,

517
1 after discussion with your fellow jurors, appears
2 erroneous. But if, after carefully considering all
3 of the evidence and the arguments of your fellow
4 jurors, you entertain a conscientious view that
5 differs from the others, you are not to yield your
6 conviction simply because you are outnumbered.
7 Your final vote though must reflect your
8 conscientious conviction as to how the issues
9 should be decided.
10 Your verdict, ladies and gentlemen, whether
11 guilty or not guilty, should be unanimous. You
12 start out by selecting -- once you're in the jury
13 room and at the outset of your deliberations -- who
14 your foreperson is to be, and that is the person
15 who will be responsible for signing any and all
16 communications with me and also the completed
17 verdict form. Then the verdict form is handed to
18 the court security officer and -- well, actually
19 the note will be telling me you have a verdict.
20 Your foreperson will bring it into the courtroom,
21 and then we'll begin the process of taking the
22 verdict and recording the verdict which will put an
23 end to this case.
24 So, when you reach a unanimous verdict, fill in
25 the verdict form. Your foreperson will do that.

518
1 Your foreperson will sign and date the form, notify
2 the CSO, and then you will be as a jury brought
3 back to the courtroom. Each verdict form must be
4 completed unanimously. And each and every juror
5 must agree before an answer is added to the verdict
6 form and signing off on the verdict sheet as it's
7 prepared and given to you and the foreperson. You
8 should be in agreement with the unanimous verdict
9 which is announced in court. Everyone's obligation
10 is to be that, once you've arrived at a unanimous
11 verdict. The verdict is announced by your
12 foreperson in open court and officially recorded,
13 and ordinarily it cannot be revoked because it is a
14 unanimous verdict.
15 Those are your instructions. What I'm going to
16 do now is just check with the attorneys and
17 Mr. Buczek, see if there's anything I left out or
18 anything I need to correct, and then we'll go from
19 there, okay.
21 THE COURT: Okay. Miss Baumgarten,
22 anything?
24 THE COURT: Okay. Mr. Buczek?
25 MR. BUCZEK: Judge, just one thing, I was

519
1 going to ask you if there's an opportunity of
2 entering my own statement into the record, because
3 I only have one exhibit in there, and I'm not sure
4 I can do that. I would like to.
5 THE COURT: You know, you can't do that
6 because the jury has been instructed that it's not
7 evidence, the opening statements.
8 MR. BUCZEK: How about the closing
9 statement maybe?
10 THE COURT: Same thing, it's not evidence.
11 MR. BUCZEK: I didn't really know what to
12 do with that, because it's hard to remember when
13 somebody says something. I want to make sure they
14 remember what I said.
15 THE COURT: Well, yeah, and their
16 instruction is to do that, to work with each other
17 to make sure they remember everything that's been
18 told them. But the evidence is what the witnesses
19 testified to --
20 MR. BUCZEK: Okay.
21 THE COURT: -- and the exhibits.
22 MR. BUCZEK: Thank you. Just one more
23 thing too. Is it that -- is it any way possible to
24 get the AT&T letter in as an exhibit at all?
25 THE COURT: No, no longer.

520
1 MR. BUCZEK: Thank you.
2 THE COURT: But it's --
3 MR. BUCZEK: Your record.
4 THE COURT: But it's not evidence.
5 MR. BUCZEK: I truly understand that.
6 MR. COMERFORD: That's as to the jury
7 charge. We discussed that, we think you covered
8 everything you need to cover. Thank you, Judge.
9 MR. BRUCE: In case we go over the
10 weekend, will you keep the alternate? We ask that
11 you keep the alternate.
12 THE COURT: What do you want to do? Do
13 you want to send the jury home?
14 MR. BRUCE: No, I think this is going to
15 be a fairly quick verdict. But in case it isn't
16 and they go home, in case something happens to a
17 juror, I would suggest to the Court that you keep
18 the alternate pursuant to -- what is it 24(c) I
19 think it is.
20 THE COURT: I think I can do that, but she
21 cannot participate in the deliberations.
22 MR. BRUCE: If it happens she winds back
23 in the main jury pool there's some instructions you
24 have to give, but we can cross that bridge if we
25 get to that.
521
1 THE COURT: Mr. Buczek, I think that's
2 right. I'll do a double check on the rule to make
3 sure I can do that and if that's permissible. I'll
4 starts the jury's deliberation now. It will take a
5 few minutes to get everything to the jury, but I
6 will not be keeping them beyond 5:00 o'clock.
7 MS. BAUMGARTEN: Your Honor, may I ask one
8 question with respect to the indictment that's
9 being provided to them, it's just going to be --
10 because of the prior ruling it's not going to be
11 Count II, right, only ---
12 THE COURT: Right.
13 MS. BAUMGARTEN: I just wanted to make
14 sure that that was clear on the record.
15 THE COURT: Yes. Okay.
16 MR. BUCZEK: I think I said everything I
17 need to say, right, Judge?
18 THE COURT: I think so.
19 MR. BUCZEK: No claim.
21 MR. COMERFORD: Thank you.
23 THE COURT: Okay. How are you doing,
24 ladies and gentlemen?
25 THE JURY: Awesome.

522
1 THE COURT: All right. Okay. Thank you
2 for listening. I know that's a little bit tedious,
3 but, you know, it works. When you think about how
4 this system has to work, all jurors have to be
5 instructed in the same way to make certain whatever
6 the case is, whatever the charge is, that each
7 individual has the benefit of the jury's being told
8 the same thing, so that to the extent possible kind
9 of uniform deliberations can take place, not only
10 here in Buffalo, but throughout the entire country,
11 and that's part of the rationale for it.
12 So you have everything you need. And what I'm
13 going to do is send you off to the jury room to get
14 comfortable, and we will prepare the packet for
15 your foreperson. You elect your foreperson, and
16 then you start the process. Your foreperson will
17 get organized so that you can begin your
18 deliberations and your discussions and your review
19 until you're at the point where you are ready to
20 communicate with us through a note given to the CSO
21 stating that you have reached your unanimous
22 verdict in this case, okay. We do have an -- oops,
23 excuse me.
24 Okay. So the first 12 of you will go with our
25 court security officer to the jury deliberation

523
1 room. And then once that's accomplished, Gerry, if
2 you would take Miss Alexander, and you will be
3 taken to the jury assembly room where you started
4 out. You will remain there until the case proceeds
5 to a verdict, just to make sure that you're not
6 needed. Okay. So, it might be a little lonely
7 there for a little bit, but don't talk with anybody
8 about the case, and the rest of the jury will
9 engage in its deliberations in this case, okay?
10 All right. Thank you very much. We
11 appreciate --
12 THE CLERK: Excuse me, Judge, I have to
13 swear --
14 THE COURT: Hold on just one second. We
15 have to swear our Court security officer.
16 (Oath administered.)
17 THE COURT: If you think about it, it's a
18 pretty harsh oath, but there is discretion, I can
19 deal with it, so, don't be too worried, and don't
20 feel like Gerry was rejected because he didn't get
21 to be sworn. He was sworn earlier, and he actually
22 is taken over by Ken, so, I think everything is in
23 order for all of you to start your deliberations.
24 Thank you. You've been terrific, and,
25 Miss Alexander, you'll wind up in another room for

524
1 a while, okay?
2 A JUROR: Okay.
4 THE COURT: Okay. Darryl, thank you.
5 THE CLERK: I need the attorneys to go
6 through the exhibits and sign off on my exhibit
7 list before you leave, please, so I can get the
8 exhibits to the jury. Thank you.
9 (Jury deliberations commenced at 4:13
10 p.m.)
11 (Case resumed at 5:10 p.m.)
12 (Jury seated.)
13 THE COURT: How are you doing?
14 A JUROR: Okay.
15 THE COURT: How about if we see you Monday
16 morning at 9:00 o'clock, okay? Who is your
17 foreperson?
18 THE FOREMAN: I am.
19 THE COURT: Okay.
20 THE FOREMAN: If I could request a half
21 hour longer? Speak to the rest of my peers, they
22 would like a half hour longer just to complete our
23 process and thereafter if we may come back, and
24 then if that's a request that you would like --
25 THE COURT: Is that agreeable to

525
1 everybody?
2 THE FOREMAN: Yes.
3 THE COURT: Okay. Any problem from
4 anybody's standpoint?
6 THE COURT: Okay. Certainly. You'll have
7 to take your time. Do whatever you need to do.
8 Don't rush it, it's too important a matter, and
9 then we can talk a little bit when you get back,
10 okay.
11 THE FOREMAN: Sounds good.
13 THE COURT: Okay. Can everybody hang in?
14 All right. Thank you.
16 (Case resumed at 5:30 p.m.)
18 THE COURT: Please have a seat. We are
19 resumed, the attorneys and Mr. Buczek are here. I
20 have a note. Just received it and opened it, and
21 it reads, "we have a verdict." And it -- the note
22 is signed and it's signed by Brian Bridges. So I
23 will take the verdict from Mr. Bridges, and then
24 we'll discuss how to proceed after that.
25 MR. BRUCE: I have a feeling they're going

526
1 to want to stay. I don't know. I don't think this
2 jury wants to come back Monday.
3 (Jury seated.)
4 THE COURT: Okay. Welcome back. All
5 right. For record purposes I note that I did
6 receive a note from the jury and I received it at
7 5:25, it now is five 5:30. I did open it. I did
8 read the note to everybody in the courtroom, the
9 attorneys and Mr. Buczek, and the note is "we have
10 a verdict" and it was signed by Brian Bridges.
11 Mr. Bridges, are you authorized by the members
12 of the jury to return a verdict on their behalf?
13 THE FOREMAN: Yes.
14 THE COURT: And do you have the verdict
15 form?
17 THE COURT: I'm going to review it for
18 form and substance, and if you would give that to
19 my courtroom deputy, Miss Labuzzetta, she'll bring
20 it here. I'll look at it. If it's in order, I
21 will take the verdict sheet and return it to you,
22 and then I'd ask you to remain standing once I look
23 at it.
24 (Verdict sheet reviewed by the Court.)
25 THE COURT: All right, Miss Labuzzetta, it

527
1 does appear to be in order. If you would take this
2 back please to Mr. Bridges.
3 If you remain standing, Mr. Bridges. The way
4 that the verdict is returned it will be in answer
5 to a question asked by my courtroom deputy as she
6 reads from her copy of the verdict sheet.
7 THE CLERK: Mr. Bridges, on behalf of the
8 jury, Count I bank fraud, how do you find as to the
9 defendant Shane C. Buczek on Count I?
10 THE FOREMAN: Guilty.
11 THE COURT: Okay. Mr. Bridges, is that
12 the verdict that you are authorized by all of the
13 ladies and gentlemen to relate here in open Court?
15 THE COURT: Okay. We'll take the verdict
16 sheet from you. That is the case, ladies and
17 gentlemen?
18 Okay. All jurors in agreement.
19 Okay. With respect to the verdict, anything
20 additional as to Count I, Miss Baumgarten?
22 THE COURT: Okay. With respect to the
23 jury's verdict, Mr. Buczek, as to Count I, it will
24 be entered, unless there's any additional requests.
25 MR. BUCZEK: Judge --

528
1 THE COURT: Check with Mr. Comerford
2 though please.
3 MR. BUCZEK: Judge, I'll just say one
4 thing. I just -- I don't think the jury got to
5 hear the entire defense, and I'll just -- on the
6 record I don't consent to the guilty plea, but
7 thank you.
8 THE COURT: Okay. Thank you. I need to
9 speak to the attorneys at side bar for a moment
10 please.
12 THE COURT: Okay. As everybody knows, we
13 have bifurcated with respect to Count II, and the
14 jury does not know that, so there is a part two for
15 them to address. Now with respect to witnesses and
16 proof, do you have witnesses and proof available?
17 MS. BAUMGARTEN: We've been trying to
18 locate Mr. Kawski. Truly it comes down to not
19 having a cell phone number. U.S. Probation is
20 closed, but it is my understanding that he was
21 going to remain available.
22 He would testify with respect to the two
23 exhibits we previously premarked and with respect
24 to the conditions of the defendant. We previously
25 indicated that the defendant did -- that he did not

529
1 wish to agree, you know, or stipulate.
2 THE COURT: Say that -- what about the
3 stipulation?
4 MS. BAUMGARTEN: We had attempted to
5 arrange a stipulation, but --
6 THE COURT: There is no stipulation?
7 MS. BAUMGARTEN: That is my understanding
8 unless the position has changed, your Honor, based
9 on this development.
10 THE COURT: Is there any change in your
11 position with respect to a stipulation to the
12 evidence with respect to the Count II, Mr. Buczek?
13 MR. BUCZEK: Can I confer with him for a
14 second please?
15 THE COURT: Sure.
16 MR. BRUCE: We can get him back, Judge. I
17 don't know how quickly.
18 THE COURT: Well, I just otherwise --
19 well, I shouldn't talk until we get everybody back
20 here.
21 MR. BUCZEK: Judge, all I can say is
22 that -- all I can say, I don't really -- I don't
23 consent to the proceedings. I don't consent to
24 the -- to the stipulation. I know we -- you had a
25 findings of facts today, but in my opinion is that

530
1 it's void. There's been no issues. I don't want
2 to dwell too deep into it. I just don't consent,
3 Judge.
4 THE COURT: Okay.
5 MR. BUCZEK: And I don't know how much
6 more to tell you, how much -- I don't know all the
7 meat and potatoes to explain it to you. But I had
8 a defense that I never got an opportunity to
9 present. I'm like half, you know, so I want to
10 have to at this point not -- not consent to
11 anything, Judge.
12 THE COURT: Okay. Well, I will advise the
13 jury not that you aren't consenting, because
14 there's a part two to the case.
15 MR. BRUCE: Could you couch it in terms of
16 a brief part two.
17 MS. BAUMGARTEN: Well, your Honor, I
18 cannot at this time tell the Court that I have Mr.
19 Kawski available. It is 20 to six on Friday,
20 and -- I'm not sure. I could take, you know, just
21 a few moments to see if I could give a better
22 answer to the Court with respect to his
23 availability. The challenge is unable to contact
24 him with respect to --
25 MR. BRUCE: I have his cell phone in my

531
1 Blackberry which is back on Delaware on my desk.
2 THE COURT: All right. Give me a couple
3 of minutes. Keep the jury right where they are,
4 Kari, and I -- everyone go back to your tables and
5 I'll make a decision on this.
7 THE COURT: Okay. Ladies and gentlemen,
8 thank you for your work with respect to the
9 verdict. There is a part two to the case, and I
10 was unable to tell you that until now, and that
11 will necessarily involve some testimony and your
12 hearing from the attorneys and perhaps Mr. Buczek
13 again in terms of an argument again. As to the
14 part two of the case, the witness or witnesses are
15 not available at this time, which means one of two
16 things. One, it would be a lot easier if we could
17 bring you back here Monday. I know you worked hard
18 to wrap things up today. Is there any reason why
19 you cannot be here on Monday morning?
20 All right. Okay. I think out of fairness to
21 both sides that would be a better way to proceed.
22 We'd start at 9:00 o'clock. I don't anticipate it
23 would be very lengthy at all. It does require
24 testimony, it does require consideration by you,
25 and it does require a finding for you to make one

532
1 way or another. So, if we could start at 9:30,
2 I'll explain everything to you in detail at that
3 point in time. Okay. All right.
4 Now, here's the thing. You can't discuss
5 anything about this case at all. You have to keep
6 your minds open to what comes next, and you don't
7 really know what that is, so usually that's pretty
8 easy to do. But, don't do anything to jeopardize
9 where you've come up to this point in time as far
10 as the case is concerned. I still have to work
11 with the attorneys and Mr. Buczek. We'll do that
12 now, but 9:30 on Monday, and we'll get started
13 immediately, and hopefully be in a position to wrap
14 everything up in short order. All right. Thank
15 you. This is the only part. There's only a part
16 two. There's not a part three or anything like,
17 but there is a part two that has to be addressed.
18 Yes, Mr. Bridges.
19 THE FOREMAN: I'm just wondering, do we
20 have to I guess vote again or -- on Monday?
21 THE COURT: Yes.
22 THE FOREMAN: On part two?
23 THE COURT: Yes. Okay. All right -- yes,
24 Miss Baumgarten?
25 MS. BAUMGARTEN: Your Honor, was the Court

533
1 intending to give an admonition concerning
2 reviewing the newspaper or the like?
3 THE COURT: Yes. There may -- it's a good
4 point. Thank you. There may be some media inquiry
5 or some media reporting, print or electronic on the
6 results of the trial as far as part one is
7 concerned. Same instruction to you. Please stay
8 clear, stay away from all of that. You can put it
9 aside until after the case in its entirety is over
10 with. But please do your best to follow the rules.
11 Don't discuss the case. Don't talk to anybody --
12 don't -- either amongst yourselves or outside as
13 far as the case is concerned. So we'll see you
14 Monday morning at 9:30. Thank you. You've been
15 terrific. We really appreciate it. Thank you.
16 We'll take that.
17 Okay. We're going to have you -- if you go
18 back to the jury deliberation room, we'll give you
19 your juror checks before you leave, okay? If you
20 don't want them, I get them. You don't want it?
21 You can leave. All right. Okay. We'll take this.
22 And don't speak to the alternate, by the way, okay?
23 She's still here, and we need to keep her around,
24 but she will not know anything about your
25 deliberations, the verdict, or anything else.

534
1 Okay. Thank you very much.
2 A JUROR: Does she come in back for part
3 two?
4 THE COURT: She'll come back in to hear
5 the presentation, but same rule applies. She would
6 not deliberate unless necessary.
7 A JUROR: Okay.
9 THE COURT: Tony, would you bring
10 Miss Alexander in from Charlene's office -- or
11 room, the jury assembly room.
12 COURT SECURITY OFFICER: Yes.
13 THE COURT: Okay. Is there anything we
14 need to discuss? All right.
15 MS. BAUMGARTEN: I don't believe so.
16 THE COURT: And, Mr. Buczek, if there's
17 any record or anything that you want to make,
18 discuss it with Mr. Comerford, and I'll give you a
19 full opportunity after part two is complete on
20 Monday. But with respect to part two make sure you
21 use your time productively to get prepared for that
22 and work with Mr. Comerford in that regard, okay?
23 MR. BUCZEK: Okay. Just one thing, Judge?
24 THE COURT: Sure.
25 MR. BUCZEK: I guess I'll have to bring

535
1 this up on appeal I would imagine, on the issues to
2 eyewitnesses that I wanted to testify on Monday,
3 because I did have people coming in on Monday, but
4 obviously we couldn't get that in, that would be an
5 appeal issue, correct?
6 THE COURT: You'll have to talk to
7 Mr. Comerford about that.
9 THE COURT: Okay. Thank you. Thank you
10 very much. We'll see you on Monday morning at
11 9:30.
12 MS. BAUMGARTEN: We're supposed to be here
13 at 9:30, Judge?
14 THE COURT: Well, you may want to be here
15 at 9:15 and we'll see if there's anything we have
16 to discuss, but 9:30 --
17 THE CLERK: We just have a short calendar.
18 THE COURT: -- is when we'll try to start
19 at.
20 MS. BAUMGARTEN: Thank you.
21 THE COURT: Attorneys don't leave until we
22 discharge Miss Alexander.
23 MS. BAUMGARTEN: Your Honor, so I have a
24 better understanding of the proceedings on Monday,
25 the government -- here she is.

536
1 (Alternate juror entered the courtroom.)
2 THE COURT: Okay. Miss Alexander, how are
3 you?
4 A JUROR: Good.
5 THE COURT: All right. Come forward
6 please. And if you would stay right there, that
7 would be great. We need to see you on Monday
8 morning, so you will report to the same room that
9 you are at, and I will notify you around 9:30 we're
10 going to start at least a part two of the
11 proceedings. And I'll advise you at that point in
12 time what your role will be in that regard, okay?
13 It's separate and distinct from part one. And so
14 what I'm saying to you is if you would get here by
15 9:30 on Monday. You will not have any association
16 with the jury.
17 A JUROR: Okay.
18 THE COURT: You will still be in an
19 alternate capacity okay?
20 A JUROR: Okay.
21 THE COURT: Have a good weekend. Don't
22 talk to anybody. There might be media coverage of
23 the case or something, don't look at that, all
24 right? Don't have any association with your
25 colleagues or fellow jurors, and we'll see you then

537
1 on Monday morning.
2 A JUROR: Okay. I do have a question.
3 THE COURT: I'm sorry?
4 A JUROR: I do have a question.
5 THE COURT: Yeah.
6 A JUROR: Will I be able, whenever this is
7 over, would I be able to sit in on the verdict?
8 THE COURT: You will not, but you will
9 learn the verdict but you cannot sit in.
10 A JUROR: Even out there.
11 THE COURT: No, I don't think you'll be
12 able to do that.
13 A JUROR: All right. It's like watching a
14 TV show and the show goes off and I don't know what
15 happens after.
16 THE COURT: I know. That's the problem
17 with being an alternate, but you're still very
18 essential to what we have to do here.
19 A JUROR: Okay. Thank you.
20 THE COURT: Thank you very much. Good
21 night.
22 (Alternate juror left the courtroom.)
23 THE COURT: Okay. We will see you on
24 Monday morning.
25 MS. BAUMGARTEN: Are we going to do like

538
1 an opening and a summation?
2 THE COURT: Yes.
4 THE COURT: There will be an opening and
5 there will be a summation and there will be
6 evidence presented, direct examination
7 cross-examination.
9 THE COURT: How long is your witness,
10 short?
11 MS. BAUMGARTEN: Yes.
13 * * * * * *
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23
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25
1 CERTIFICATION
3 I certify that the foregoing is a
4 Correct transcription of the proceedings
5 Recorded by me in this.
8 s/Michelle L. McLaughlin
Michelle L. McLaughlin, RPR
9 Official Reporter
U.S.D.C., W.D.N.Y.
10
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VOL.

UNITED STATES DISTRICT COURT

Proceedings held before the

Honorable William M. Skretny, Part IV,

U.S. Courthouse, 68 Court Street,

Buffalo, New York on March 5, 2010.

MARY CATHERINE BAUMGARTEN,

Michelle L. McLaughlin, RPR,

3 OPENING STATEMENT BY MR. BUCZEK 412

10 JURY CHARGE CONFERENCE 460

13 CHARGE TO THE JURY 480

14 VERDICT AS TO COUNT I 526

1 (Jury not present in the courtroom.)

2 THE COURT: Okay Miss Labuzzetta, if you

3 would call the case.

4 THE CLERK: Criminal case 09-121S, United

5 States of America versus Shane Buczek.

6 THE COURT: Okay. The attorneys and

7 Mr. Buczek are present. We're resumed in the case.

8 A matter has come to my attention that I think

9 needs some discussing this morning. Mr. Comerford.

10 MR. COMERFORD: Yes, Judge. I received

11 information that one of the jurors, I believe Brian

13 THE COURT: Juror number five.

14 MR. COMERFORD: Juror number five, spoke

15 on the phone with Carol Steinbruckner, who until

16 about a month ago was employed with my office, it's

17 someone who's met the defendant, had some

18 interaction with him, and is somewhat familiar with

19 this case. Apparently Mr. Nycel did speak to her

20 about the case. I don't know exactly what was

21 said, but there was some conversation about it. I

22 don't know that Miss Steinbruckner -- I don't think

23 she said anything about Mr. Buczek. But I do know

24 that Mr. Nycel appears to be talking about the case

25 to someone from my office. I think it's a problem

1 and that it shows that he's not following the

2 Court's instructions to not discuss the case

3 outside the courtroom, not contact people, those

5 THE COURT: All right. You don't know the

6 substance of the conversation?

7 MR. COMERFORD: I know it was about the

8 case. I know there was some commentary about

9 whether this guy should be proceeding pro se,

10 whether he should have his lawyer. Mr. Nycel's

11 opinion was that he should his own lawyer, he

12 shouldn't be doing this himself.

13 THE COURT: Generally speaking that was

14 the sum and substance of the conversation as you

16 MR. COMERFORD: I think so.

17 THE COURT: You communicated that to

19 MR. COMERFORD: I did, Judge.

20 MR. BUCZEK: Judge, I just found out about

22 MR. COMERFORD: I told him this morning

23 when I came in.

24 THE COURT: Okay. And this allegedly

1 MR. COMERFORD: I think yesterday.

2 THE COURT: During the day?

3 MR. COMERFORD: I'm shot sure when the

4 witness spoke to Carol Steinbruckner, but I think

5 it was yesterday. We just heard about it from

6 Carol Steinbruckner late last night.

7 THE COURT: I know the Federal Public

8 Defender, Miss Mariano, is here. I think you have