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Case 3:06-cv-00056-PMP-VPC Document 861 Filed 09/18/08 Page 1 of 231

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UNITED STATES DISTRICT COURT


DISTRICT OF NEVADA
BEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE
---o0o---

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DENNIS MONTGOMERY and the


Montgomery Family Trust,

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Plaintiffs,

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-vsETREPPID TECHNOLOGIES,
LLC., et al.,

Defendants.

:
:
: No. 3:06-CV-56-PMP(VPC)
:
3:06-CV-263-PMP(VPC)
:
: September 5, 2008
:
: Reno, Nevada
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:
:
:

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TRANSCRIPT OF EVIDENTIARY HEARING

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APPEARANCES:

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FOR THE PLAINTIFFS:

ELLYN GAROFALO and


RANDAL SUNSHINE
Attorneys at Law

FOR THE DEFENDANTS:

J. STEPHEN PEEK
Attorney at Law

FOR THE COUNTERDEFENDANTS:

BRIDGET ROBB PECK and


TRICIA M. DARBY

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FOR THE INTERESTED PARTY:

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Reported by:

GREGORY ADDINGTON and


RAPHAEL GOMEZ
Assistant U.S. Attorneys
Margaret E. Griener, CCR #3, RDR
Official Reporter
400 South Virginia Street
Reno, Nevada 89501
(775)329-9980

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COMPUTER-ASSISTED TRANSCRIPTION

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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RENO, NEVADA, FRIDAY, SEPTEMBER 5, 2008, 9:00 A.M.

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THE CLERK:

This is the date and time set for

evidentiary hearing in case 06-CV-263-PMP(VPC), in re search

warrant of the residence located at 12720 Buckthorne Lane,

Reno, Nevada, and storage units at Double R Storage, and in

case number 06-CV-56-PMP(VPC), Dennis Montgomery and others

versus eTreppid Technologies and others.

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Present on behalf of plaintiff, Randall Sunshine and


Ellyn Garofalo.

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Present on behalf of defendant, Stephen Peek.

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Present on behalf of counterdefendants, Bridget Robb

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Peck.
Present on behalf of the government, Gregory
Addington and Raphael Gomez.
THE COURT:

Thank you very much, and good

morning to everyone.
This matter, as the clerk indicated, is being held

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not only in the 06-56 proceeding, that is, the civil

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proceeding between the Montgomery parties and eTreppid, but

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also in the search warrant proceeding, the 06-263 matter,

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because the issues that arise in this evidentiary hearing are

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obviously tied to the search warrant proceeding.

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So I'm going to just recount briefly how it is that

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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we are here this morning, and then, since it is the motion of

the Montgomery parties for the evidentiary hearing, we'll go

ahead and proceed.

Although the Montgomery parties moved for the

evidentiary hearing and made their initial claim about a

potential discrepancy concerning the matters obtained in the

search warrant and the search warrant return, an important

declaration was filed on March 10, 2008, by Mr. Montgomery.

As the United States pointed out in one of the

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papers they filed, and in paragraphs 8, 9 and 10 of that

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declaration, Mr. Montgomery attested that certain items were

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seized by the FBI and not returned, and contended that the FBI

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had damaged and, in some cases, destroyed his property, and

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that also contended there were discrepancies between the FBI

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inventory seizure list and the FBI return list.

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said, was filed in March of this year.

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That, as I

That was followed by docket 527 which was the

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Montgomery parties' request for the evidentiary hearing, and

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in that request the Montgomery parties assert that the search

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warrant inventory and return inventory, which should be mirror

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images of each other, do not match; the reason may be

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innocent, such as an omission made in the heat of the search;

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more ominously, the disparity may suggest that evidence was

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tampered with after the search with materials deliberately

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planted to provide Trepp with evidence to support his civil

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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claims against Montgomery, or it may be that the property was

not properly maintained allowing the seized evidence to be

commingled with other evidence not seized from Montgomery

pursuant to flawed warrant -- the flawed warrants; only an

evidentiary hearing will establish what was seized, the chain

of custody, and why the return inventory included more

property than the search inventory.

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Then the government opposed the evidentiary hearing


at docket 543, and the Court, at the June case management

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conference, went ahead and granted the Montgomery parties'

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motion for an evidentiary hearing, but Ms. Klar at the time

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was representing the Montgomery parties, and she agreed to

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coordinate with the FBI concerning a review of a videotape of

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the search warrant and to advise the Court and counsel by

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June 30, 2008, whether such a hearing was necessary.

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On June 30, Ms. Klar filed docket 716 and indicated

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that they anticipated -- apparently there was some delay in

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obtaining some of the information, and she indicated she

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wished to go ahead with the evidentiary hearing and intended

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to call Special Agent Michael West and other persons involved

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in the chain of custody.

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That was followed by a report from the United States

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at docket 738 concerning the coordination of efforts to

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respond to the Montgomery parties' request for information,

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and the Montgomery parties filed a subsequent report, docket

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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744.
The Court went ahead July 17, 2008, at the case

management hearing and set this matter for hearing today, and

the Montgomery parties subsequently asked to take this hearing

off calendar, and the Court declined to do so.

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So we are here today prepared to address the issues


set out by the Montgomery parties.
So, Ms. Garofalo and Mr. Sunshine, please proceed.
MS. GAROFALO:

Good morning, your Honor.

We've had discussions in the form of meet and

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confers with Mr. Addington and the government, and we have

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concluded, with the Court's permission, that the most

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appropriate way to proceed would be by having the government

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present its evidence first showing how the two of us

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coordinate and how there is a direct correlation between the

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evidence seized and the evidence returned.

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We would ask the Court's permission to allow us to


proceed somewhat out of order with the government going first.
THE COURT:

All right.

Any objection, Mr. Addington?

Is that your

agreement, sir?

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MR. ADDINGTON:

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THE COURT:

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MR. ADDINGTON:

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Thank you.

It is, your Honor.

All right.

You may proceed, sir.

Thank you.

I call Mr. Gerald Devore.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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G E R A L D
W.
D E V O R E,
called as a witness on behalf of the Government,
was sworn and testified as follows:

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THE CLERK:

Please state your full name for the

record, spelling your last name.

THE WITNESS:

THE CLERK:

MR. ADDINGTON:

THE COURT:

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Gerald W. Devore; D-e-v-o-r-e.


Thank you.

Please be seated.

May I proceed, your Honor?

Oh, you may.

DIRECT EXAMINATION
BY MR. ADDINGTON:

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Mr. Devore, what is your occupation or profession?

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I'm a special agent with the Federal Bureau of

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Investigation.

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How long have you been so employed?

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Twenty-four years.

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Where is your duty station?

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The Federal Bureau of Investigation resident agency in

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Reno, Nevada.

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How long have you been in the Reno office?

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Two years.

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Where were you before the Reno office?

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Los Angeles.

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In March and April of 2007, were you assigned any duties

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regarding the return of seized property to Dennis Montgomery?


A

Yes, I was the photographer of all the evidence that we

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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returned.
Q

What specifically were you asked to do?


You mentioned you were the --

I was --

-- photographer.

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Can you describe what were you asked to

do with respect to the return of property to Mr. Montgomery.


A

I was just to document all the property that was returned

to Mr. Montgomery by photographing it and logging down what

each item was and photographing it.

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Other than that role that you've just described, did you

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at any time have any other role with respect to the Dennis

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Montgomery investigation?

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I've had none.

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Did you prepare any type of record or inventory of your

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activities with respect to the return of property to

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Mr. Montgomery?

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Yes, I did.

I did a photo log of both the March and

April returns.
Q

And in addition to a photo log, you actually took the

photos as well?

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I took -- yeah, I took 120 photographs, I believe.

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You should have some evidence books there in front of

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you, two of them.

One of them is labeled on the front

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Exhibits A through E.

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Do you have that?

That will be the smaller exhibit book.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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Yes, I do.

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MR. ADDINGTON:
Court.

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I also provided a copy for the

THE COURT:

Thank you, sir.

BY MR. ADDINGTON:

Turn to Exhibit D, please.

Yes, sir.

Do you have that in front of you?

I do.

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What is Exhibit D?

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Yes, it is.

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I'm sorry, five pages in length.

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There's two exhibits, one is the return on April 6th, the

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It appears to be six pages in length?

other is the March 29th return.


Q

All right.

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misspoke.

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is the date?

Let's look at the first page.

I think I

The first page references a date at the top.

What

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4/6/07.

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And what does that page depict?

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It's the photo log of the return of the prescription

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drugs that were seized at Mr. Montgomery's home.


Q

And were those prescription drugs returned on April 6 of

2007?

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Yes.

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And is this first page all your handwriting?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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Yes, it is.

And is it your signature that appears at the bottom, in a

slant across the bottom?

Yes, it is.
Then go to the next page, and this appears to be the

first of five pages, correct?

That's correct.

And what do those five pages depict?

That is the return of the evidence to Mr. Montgomery, it

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was the computer-related evidence, on March 29th.

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Of 2007?

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2007.

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Okay.

And do those five pages that correspond to the

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March 29th, 2007 return of property, are those five pages all

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your handwriting?

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Yes, they are.

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And the last page of Exhibit D, is that the final page of

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the March 29th, 2007, photo log?

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Yes, it is.

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And that's your signature across the bottom?

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Yes, it is.

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And does Exhibit D accurately reflect the work that you

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did in photographing the return of property to Mr. Montgomery?


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Yes, it does.
MR. ADDINGTON:

I move to admit Exhibit D, your

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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Honor.

THE COURT:

MS. GAROFALO:

MR. PEEK:

No, your Honor.

THE COURT:

D is admitted.

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Any objection?
No, your Honor.

(Government's Exhibit D received in


evidence.)
BY MR. ADDINGTON:
Q

You mentioned the role that you had.

Did you have the

same role on both days --

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Yes, I did.

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-- March 29th as well as April 6th?

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Yes, I did.

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Where did that return of property take place?

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At the FBI office in Reno, Nevada.

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Was there a particular room within the office?

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It was the interview room.

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I can't remember what the

number is.

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One of the interview rooms?

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One of the interview rooms.

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Was Mr. Montgomery present on March 29th, '07?

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Yes, he was.

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Was anyone else present with him on that day?

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His attorney and two other individuals.

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Which attorney was there with Mr. Montgomery?

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Do you

remember his name or her name?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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His name, and, no, it escapes me at this point.

Was it Mr. Pulver, does that refresh --

Yes, it was Mr. Pulver.

And you mentioned some other people who were present.

Who else was present with Mr. Montgomery on that date?

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If you don't remember the names, was it a man, a


woman?
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It was a man and a woman.

I can't remember the names at

this point.
Q

And were those three people who accompanied

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Mr. Montgomery, were they all in the interview room or witness

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room together?

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Yes, they were.

Mr. Montgomery was in and out at

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different times during the several hours that it took to

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return all the evidence.

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Why would Mr. Montgomery leave the room?

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He -- after we had documented a piece of evidence,

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returned it to him, and they had signed the receipt, he would

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take the evidence and leave and then come back.

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Other than the people who were there with Mr. Montgomery

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that you just mentioned, were there any other persons inside

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the witness room besides yourself?

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Myself, SA Mark Thomas from the FBI in Reno --

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When you say SA, you mean special agent?

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Special Agent Mark Thomas.

Special Agent Mike West came

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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in at one point to answer a question, and Supervisory Special

Agent Krista Stanton was there also to answer questions and to

talk to the attorney on -- when issues arose.

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So what was Mark Thomas' role in connection with the

return of property on March 29th?

He was the returning agent.

Did he have the larger role in this process?

Yes, he did.

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It was his case.

The case had been

transferred to him.
Q

And you mentioned Agent Mike West.

He came in on a

couple of occasions or one occasion?


A

I believe he came in on a couple of occasions, but they

were just come in, answer a question and then leave.


Q

And Ms. Stanton, was she at that time the head of the

office?
A

Yes, she was the senior resident supervisory special

agent.
Q

When did the Montgomery group, Mr. Montgomery and the

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people with him, when did they arrive at the facility that

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day?

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They arrived -- I think the time agreed on was at

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nine o'clock in the morning, and they arrived at approximately

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nine o'clock in the morning.

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We began returning evidence, I believe, at about


9:30 in the morning, and we continued until about 1:00 --

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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between 1:00 and 2:00 in the afternoon.


Q

And did it proceed directly through that entire time, or

did you take breaks in the middle?


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We proceeded through that entire time.

There were some

breaks taken, people wanted to go to the bathroom or -- and

get a drink of water, but it was -- everyone was in the room

or someone was in the room the entire time.

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And you mentioned that your task was to photograph and

document the return of property.

Can you now describe, in a

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narrative fashion if necessary, what you actually did as items

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of property were returned to Mr. Montgomery on March 29th.

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As each item came in, we documented what the item was on

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a log sheet that a copy was for the government and for

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Mr. Montgomery.

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photographic log of each item.

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I then photographed it and made a

The main concern was documenting serial numbers,

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that type, so that the items were returned, they were in good

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condition, and that we knew exactly what was returned to

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Mr. Montgomery and matched it up with the logs of what had

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been seized.

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All right.

You mention Mr. Pulver was there,

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Mr. Montgomery's lawyer.

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this process?

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What, if anything, did he do during

He reviewed every item as we returned it.

We agreed on

what was the process.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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And did the other two people, the man and the woman that

you described, did they have any role in the movement of

property to Mr. Montgomery?

They just observed what was going on.

Did you have any interaction with those two people?

General social conversation.

Usually, when

Mr. Montgomery had received some items back, he would leave,

or, as we were cycling through, there was some downtime in

there, we would have some social conversation with them.

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Looking again at the first page of Exhibit D, the

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April 6th, '07 return of prescription medication, how long did

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that process take on April 6th of '07 to return those items to

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Mr. Montgomery?

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Approximately an hour.

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And were those items actually returned to Mr. Montgomery

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himself, or did somebody else come by to pick those up?

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I believe they were returned to his attorney.

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Is that Mr. Pulver again?

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Mr. Pulver again, yeah.

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Clearly, the larger bulk of materials were returned on

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the March 29th date; is that correct?

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That's correct.

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Let's focus on that for a moment.

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During this process on March 29 of '07 to return


these materials to Mr. Montgomery, how were the seized

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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materials actually brought into the witness room to present to

Mr. Montgomery?

Each item was brought in from the evidence -- secure

evidence room in the Reno resident agency.

it was logged out of our computer -- removed from the evidence

room, logged out of the computer system so that our FBI

inventory was correct.

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It was brought in,

It was then brought into the room, set down.

We

photographed the serial numbers, I documented each item, and

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then Mr. Montgomery signed the receipt for it, and the item

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was returned to him.

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And then how were the materials moved out of the witness

room?
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Mr. Montgomery carried them out.

I think we actually

provided him with a cart so he could move them down.

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He had a car down in the parking lot, and so that he

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could -- several of the items were rather -- I think there

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were a number of computers, they were rather bulky, so he had

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to carry them out.

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And do you know where he took them after he left the

witness room?

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No, I don't.

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The photographs that you took that are reflected on the

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Exhibit D log, have you reviewed those photographs?


A

Yes, I have.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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Turn to Exhibit E, please, in that same book.

Yes.

This appears to be a collection of photographs numbered

at the bottom right-hand corner, if the book is turned

sideways, 001 through 0135.

That's correct.

Do you have that in front of you, sir?

Yes, I do.

Are those the photographs that were taken on March 29th,

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'07, by you?
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Yes, March 27, '09 [sic], and then I believe the last --

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1 through 120 were the ones on the 29th, and then starting

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with Photograph 121 through 135 are the ones taken on the

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06 -- April 6th --

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The March 6th return of medication?

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The March 6 return -- the April 6th return.

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MR. ADDINGTON:

Move to admit Exhibit E, your Honor.

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THE COURT:

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MS. GAROFALO:

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MR. PEEK:

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THE COURT:

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Right.

Any objection?
No objection, your Honor.

No objection, your Honor.


They're admitted.

(Government's Exhibit E received in


evidence.)

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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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BY MR. ADDINGTON:
Q

If you turn back to Exhibit D, sir, and we'll be flipping

back and forth between these two, Exhibit D and E.

We're

going to put aside the first page which is the April 6th log;

is that correct?

That's correct.

And look at the five pages that comprise the March 29th

log.

correct?

It shows that there are 117 photographs logged; is that

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That's correct.

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And for that number I'm looking at the last page of

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Exhibit D?

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That's correct.

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And you just mentioned that the photographs in Exhibit E

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that correspond to the March 29th return of property go from

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001 through 0120, which means 120 photographs.

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Why are there 120 photographs but only 117 logged?


A

The first photograph wasn't an intentional photograph.

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We were setting the camera up, I believe it was the first time

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I had used that particular camera, and we took a photograph,

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and I didn't realize that we had taken one.

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So just to make sure I understand, actually,

Photograph 001 of Exhibit E -A

001 is not of evidence.

It was an accidental photograph

when we were setting the camera up.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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So that photograph does not appear on Exhibit D in the

log?

Does not appear on Exhibit D.

So that accounts for one of the extra photos, right?

Yes.

What about other two?

If you go through the other photographs, I can't remember

exactly which ones they are, it appears that I hit the

camera -- the photo button twice and took a double photograph

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of an item --

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All right.

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-- on at least two occasions.

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Does that account for the three extra photos in Exhibit

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E?

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Yes, it does.

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Does Exhibit D, the photographic log, fairly describe the

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photographs which are in Exhibit E?

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Yes, it does.

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And do -- do the descriptions of items in Exhibit D

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fairly describe the materials that were actually returned to

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Mr. Montgomery on March 29th of '07 and April 6th of '07?

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Yes, it does.

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During this process on March 29th of '07, did

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Mr. Montgomery say anything which suggested to you that he

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believed any seized items were missing?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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He was -- he was upset and concerned about there were

three extra hard drives that we returned to him, and that's

when, I guess, Special Agent Michael West came in and

explained that they were images we had made of computer hard

drives of Mr. Montgomery's items.

Okay.

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Let me ask you the question again.


Did you hear him say anything that suggested that

something was missing from the items that were being returned?

No.

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Did anyone else in the room say anything which suggested

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to you that anyone believed items were missing from what was

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being returned?

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No.

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Did Mr. Montgomery or anyone else in the room say

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anything which suggested to you that he or they believed any

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items were damaged?

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Mr. Montgomery complained that two of the CDs, and

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there's photographs in here, had been damaged, and there were

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blemishes on the back of the CDs, and I took photographs of

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them.

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Okay.

Turn to Exhibit E, page 83 and 84, if you would

look at those two photographs.

Do you have that, sir?

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Yes, I do.

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Are those two photographs of the same two CDs?

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Yes, they are.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980

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And is Photo 84 the backside of the CDs that are

depicted --

Yes.

-- on 83?

Yes, those are the ones that Mr. Montgomery was

6
7

complaining about.
Q

Okay.

Other than those two CDs where this issue arose

about them being scratched, was there any other suggestion

made on April 29th -- I'm sorry, March 29th about damaged

10

materials?

11

Not to my recollection.

12

During this process on March 29th, did Mr. Montgomery or

13

anyone else in the room say anything which suggested to you

14

that they believed that items were being returned that were

15

not Mr. Montgomery's to receive?

16

Mr. Montgomery noted that there were more -- we returned

17

more CDs than we had listed on the seizure, and when we went

18

through the items, it became clear that there were -- in some

19

cases, in the CD holders, there were two CDs rather than one,

20

and whoever inventoried the items initially had just counted

21

the number of packets and places to put CDs and assumed there

22

was one CD in each one, so we returned CDs more than

23

Mr. Montgomery stated.

24
25

There was also a videotape that Mr. Montgomery


didn't recognize or didn't claim ownership of.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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21

With respect to those issues that you have just

described, was there any resolution on March 29th of whether

those items were properly released to Mr. Montgomery?

Yes, I believe there were.

SA West and SA Thomas and

Mr. Pulver discussed those items, and they were returned to

Mr. Montgomery.

At the conclusion of this process on March 29th, '07, was

there any concern raised by Mr. Montgomery or anyone in his

group about him having received everything which had been

10
11

seized?
A

Not that I recall.

12
13

MR. ADDINGTON:

THE COURT:

15

Thank you.

Ms. Garofalo.

16

18

Thank you,

your Honor.

14

17

Nothing further.

CROSS-EXAMINATION
BY MS. GAROFALO:
Q

Good morning, Agent Thomas.

19

I believe you had testified that prior to

20

participating in the return you were not at all involved in

21

the seizure of the items or in the investigation; is that

22

correct?

23

That's correct, and that's Agent Devore.

24

I'm sorry, Agent Devore.

25

How long did the return process take on March 29th,

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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22

1
2
3
4
5
6
7

if you recall?
A

I believe we started about 9:30 in the morning, and

sometime between 1:00 and 2:00 we were finished.


Q

And do you, as you sit here today, recall approximately

how many items were returned?


A

I photographed 117 items.

If you'll notice, there's

several photographs of multiple CDs and multiple hard drives.

Can you estimate about how many CDs there were?

No.

10
11
12

You know, it was a large number.

and look it up if you need that information.


Q

Okay.

If I told you approximately 75 or 78 CDs, would

that be consistent with your recollection?

13

That would be about right.

14

Okay.

15
16

I could go back

And do you recall how many hard drives were

returned to Mr. Montgomery?


A

No, I don't.

I know there was one -- there were 11

17

blank hard drives still in packages, but there were a large

18

number of other ones.

19

Okay.

Now, I assume that during the process of returning

20

these items, nobody actually reviewed the material on any of

21

the CDs; is that correct?

22

Not in my presence.

23

Okay.

So you, from your involvement, your presence there

24

that day, wouldn't know whether or not any information on

25

those CDs had been damaged, was unreadable or so forth?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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23

That's correct.

Okay.

And the same would be true of the hard drives,

isn't that true, Agent Devore?

Yes, it is.

Okay.

So you really, as you sit here today, have no way

of knowing whether or not hard drives or CDs had been damaged

to the point where some information was unreadable; is that

correct?

That's correct.

10

Okay.

11

Did you subsequently obtain any knowledge in that

regard?

12

No.

13

Okay.

So all you know is that the physical hard drive

14

itself as returned didn't appear to have any damage; is that

15

correct?

16

That's correct.

17

And the same for the CDs.

18

That's correct.

19

But You don't know what information was on the CDs or the

20

hard drives.

21

None at all, I have no access to that information.

22

And you certainly don't know whether the information on

23

the CDs as returned was intact from the CDs at the time they

24

were seized; is that correct?

25

That's correct.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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24

1
2

Okay.

So you don't know if information had been added to

the CDs, for example.

No.

And you don't know if information had been deleted; is

that correct?

That's correct.

Okay.

8
9

Was there at least one instance in which a hard

drive was missing?


A

No, no hard drives were missing to my knowledge.

10

MS. GAROFALO:

Okay.

I'm going to mark -- and

11

I'm sorry these are somewhat out of order because of the order

12

in which we're doing the examination, but as Plaintiff's

13

Exhibit Number 41.

14

May I approach, your Honor?

15

THE COURT:

16

(Plaintiff's Exhibit 41 marked for


identification.)
MS. GAROFALO: I'm sorry, your Honor, Mr. Peek

17
18

You may.

is asking for a copy.

19

We had shipped two boxes with binders and exhibits

20

to Mr. Gunderson.

Only one showed up.

21

find the other box.

22

copy of the photos once we're done.

So I apologize.

23

THE COURT:

24

MS. PECK:

25

FedEx is trying to
I will give Mr. Peek a

Thank you.
And, Ms. Garofalo, that would be me

as well?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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25

MS. GAROFALO:

out.

BY MS. GAROFALO:

Yes.

Sorry, we always leave you

I would ask you to take a look at these, and I would

represent to you that these are still photos taken from videos

that were provided by the government that were taken by

cameras, camera number five, specifically, in the witness

room.

9
10

And just the photo on the top, Agent Devore, is that


you taking pictures?

11

Yes, it is.

12

In the top photo you appear to be taking a picture of

13
14
15
16

a -- some kind of -A

Computer, and then a hard drive on -- I believe that

would be the -- we would be taking the hard drive photograph.


Q

Okay.

If you turn to the next page, if you look, you can

17

see sort of a picture of a hard drive on the screen.

18

see that?

19

Yes, I do.

20

Okay.

21

Do you

And if you turn to the next page, what appears to

be the same hard drive is sitting on the left.

22

Yes, it's a removable hard drive.

23

Okay.

And I don't know if you can see it in this photo,

24

I'll show you another, but whatever was in the casing seems to

25

be missing.

Do you see that?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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26

1
2

THE COURT:
on, Ms. Garofalo?

3
4

Could you tell me what page you're

MS. GAROFALO:
your Honor.

THE COURT:

THE WITNESS:

7
8
9
10

I'm on the second page,

All right, thank you.


I can't tell from my photograph.

BY MS. GAROFALO:
Q

Okay.

I would ask you to go back and look at Exhibit E

which is in your notebook, and if you'll look at the page


marked DSC 0004, do you have that page?

11

Yes, it's a hard drive container.

12

Okay.

Can you tell from looking at that if that's the

13

same container that's in the photograph which is the second

14

page of Exhibit 41?

15

It appears to be.

16

Okay.

17

That's correct.

18

Okay.

19

And that container is empty, is it not?

Do you recall, do you have any recollection as to

why that container is empty?

20

There's no hard drive in it.

21

Okay.

But was there any discussion as to what happened

22

to the hard drive that had been in that container at the time

23

of the return?

24
25

MR. ADDINGTON:

Objection, your Honor, the

question calls for or implies that there was a hard drive at

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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27

the time of the return.

2
3

MS. GAROFALO:
recollection of a --

THE WITNESS:

MS. GAROFALO:

I've simply asked if he has any

I have no --- discussion relating to the

empty --

THE WITNESS:

No, I have no --

MS. GAROFALO:

-- container.

THE COURT:

Everybody stop.

So that we have an

10

accurate record, please, everyone allow one person to speak at

11

a time.

12

Ms. Garofalo, go ahead and ask your question.

13

objection is overruled.

14

BY MS. GAROFALO:

15

Okay.

The

Go ahead and proceed.

Was there any discussion at all that you can

16

recall as to what happened to the hard drive that may have

17

been contained in that container?

18
19
20
21

There may have been a discussion.

I do not recall what

the discussion was.


Q

There may have been a discussion about a hard drive

missing, isn't that correct?

22

There may have been.

23

You can't rule that out as you sit here today?

24

I wasn't -- I was taking the photographs, I wasn't -- I

25

believe Special Agent West and Special Agent Thomas and

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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28

Special Agent Supervisor Kris Stanton discussed it with

Mr. Pulver and Mr. Montgomery.

Okay.

I couldn't remember what the exact conversation was.

Okay.

Did you actually participate in the

conversations --

No.

-- between Agent West and --

No.

10

-- Mr. Pulver?

11

No, no.

12

So you were simply just taking photographs of --

13

Just documenting the return.

14

Now, if you go back to Exhibit 41, which are the frames

I was not --

15

taken from the videotape provided by the government, and go to

16

the third page, and I believe you're standing there.

17

you in the white shirt, isn't it --

That's

18

It is.

19

-- Agent Devore?

20

Yes.

21

Okay.

22

SA Mark Thomas.

23

And Agent Thomas has a box.

24

Yes.

25

And do you know what was in the box, if anything?

And who is the person seated in the blue shirt?

Do you see that?

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29

No, I don't at this point.

Okay.

Were the -- all right.


I would ask you to turn to the next page, and I know

the picture is hard to read, the videotape is hard to read,

but can you tell what Agent Thomas has in front of him?

6
7
8
9
10

It looked like CDs in sealed packages -- or, excuse me,

hard drives in sealed packages.


Q

Okay.

Are they in evidence control envelopes, if you

know?
A

I believe they were in sealed -- let me go back.

11

There were 11 Western Digital, I believe, hard

12

drives that were in sealed packages.

13

photograph number 34, there's a number of Western Digital hard

14

drives that were in -- there's 11 of them there.

15

sealed protective packages that had never been opened.

16
17
18

Okay.

If you look at

They were in

But as far as you know, were those packages that

were taken from Mr. Montgomery?


A

I have no -- all I have knowledge of is that they were

19

removed from our evidence and brought in, and I photographed

20

them.

21

Okay.

22

I don't -- this is all evidence that was seized from

23
24
25

Mr. Montgomery's house.


Q

Okay.

Do you know whether or not those hard drives were

placed in those packages by the government after they were

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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30

1
2

seized or whether they were seized in that condition?


A

I have no knowledge of -- they -- they were seized

packages in nonstatic -- you would have to ask the seizing

agent whether they were that way when they were seized.

5
6

All right.

But when they were brought into the room,

they were brought in in a box --

In a box --

-- sort of loose in a box, correct?

They were packaged in a box, correct.

10

Okay.

11

box?

12

And was there any marking on the outside of the

It would have been a certain FBI evidence control -- you

13

know, a number from -- I believe that's how they were stored

14

in our evidence space.

15
16

Do you know that for a fact, or are you just assuming

that --

17

I'm just assuming --

18

-- that based on procedure --

19

Based on --

20
21

(Discussion off the record.)


BY MS. GAROFALO:

22

I'm sorry, are you just assuming that --

23

I'm just assuming --

24
25

THE COURT:

Stop again.

Okay.

Stop.

The court reporter cannot take down two

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31

conversations at once, and I think both of you know where

you're going and so you're answering, but it really creates an

inaccurate record.

asked and patiently listen to the answer to be given.

5
6
7

So patiently listen for the question to be

Thank you.

Go ahead.

BY MS. GAROFALO:
Q

You don't know for a fact whether or not that box had

been marked.

You're just assuming that that would be

consistent with procedure; is that correct?

10

That's correct.

11

Okay.

12

And did you take any photographs of the exterior

of that box?

13

No, I did not.

14

Were the other materials returned to Mr. Montgomery,

15

other than the hard drives in this box, in envelopes with the

16

appropriate markings, evidence control envelopes?

17

I guess I'm not understanding your question.

18

Okay.

19

There -- a number of items --

20

MR. ADDINGTON:

Objection, your Honor.

If he

21

didn't understand the question, then the question should be

22

rephrased.

23
24
25

MS. GAROFALO:

I'll rephrase the question.

BY MS. GAROFALO:
Q

Most of the items that were returned to Mr. Montgomery

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32

were in manila-type envelopes --

That --

-- that were the envelopes used to store items; is that

correct?

That's correct.

Were these the only items that were not presented the day

7
8
9

that you took the photographs in those envelopes?


A

No, there was a number of computers that were returned,

and those weren't in that kind of envelope.

10

What about CDs?

11

I don't recall on that.

12

They may have been in envelopes

or what would be a standard bag type.

13

But other than that, everything else was presented

14

to me, I wasn't paying attention to that -- where the items

15

came in, I was documenting each item as we returned it.

16

Okay.

So you were just taking photographs of the items

17

once they were unpackaged or unsealed and presented to

18

Mr. Montgomery for return --

19

That's correct.

20

Is that correct?

21

That --

22

You have no photographs of the actual packages or boxes

23

in which the items were returned?

24

That's correct.

25

You've identified two photographs which are 0083 and 0084

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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33

as the front of two CDs and the backs, which Mr. Montgomery

complained appear to be damaged.

Devore?

Do you see those, Agent

Yes, I do.

And like the other CDs, did anybody in the room at the

time of the return test them to see if the CDs were still

readable?

No.

Okay.

So you don't know as you sit here today whether

10

those CDs were damaged to the point where they were not

11

readable; is that correct?

12

That's correct.

13

Okay.

14

Was there any discussion in that room where the

return was occurring as to how these CDs were damaged?

15

I don't recall on that specifically.

16

But you do recall that there was some discussion by

17

Mr. Montgomery, at least, that the CDs appeared damaged,

18

correct?

19

That's correct.

20

Okay.

21

He -- he just complained that the CDs had been damaged.

22

And did anybody respond to that complaint?

23

We photographed the CDs and returned them to him.

24

Okay.

25

And what exactly did Mr. Montgomery say?

So as you sit here today, you have no way of

knowing if the CDs were damaged, correct?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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34

That's correct.

MS. GAROFALO:

THE COURT:

Mr. Addington?

5
6
7

I have no further questions.

Thank you.

REDIRECT EXAMINATION
BY MR. ADDINGTON:
Q

Agent Devore, in response to a question of the total

number of CDs returned to Mr. Montgomery on March 29th, you

endorsed Ms. Garofalo's statement there was about 75?

10
11

Is that

your recollection?
A

I remember that there were a large number of CDs.

The

12

exact number, you would have to ask SA Mark Thomas or SA Mike

13

West on what we seized.

14

Turn to Exhibit D, please, your photographic log, and

15

turn to the fifth page of that exhibit.

16

up at the top right-hand corner.

It says page 4 of 5

17

Yes.

18

The four of the five pages corresponding to March 29th,

19

do you have that?

20

Yes, I do.

21

And this is the photo log from numbers 91 through 112?

22

That's correct.

23

Look at item number 108.

24

Thirteen CDs.

25

What about number 109, what does that say?

Does that reflect 13 CDs?

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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35

Sixteen CDs.

110?

Three CDs.

And that's a total of 32, correct?

That's correct.

Go down to number 112.

Sixteen -- 78 CDs.

And these are all separately numbered and counted,

How many are there?

correct?

10

That's correct.

11

These are not overlapping with one another, are they?

12

No.

13

All right.

14

please.

And go up to the previous page, number 75,

Is that five more CD disks?

15

That's correct.

16

And number 76, is that another disk?

17

That's correct.

18

And number 77, is that another disk?

19

That's correct.

20

And number 86 and 87 and 88, is that three more disks?

21

Would be four more disks, that's 86 is one, 87 is one, 88

22
23
24
25

is two.
Q

And go to number 56 on the previous page.

That

references a soft-side CD case, correct?


A

That's correct.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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36

Were there any CDs in that case?

Yes, I believe there were.

Do you recall how many there were?

If you'll notice item 57?

Yes.

Inside soft-side case, two CDs.

And then the numbers that follow from 57 --

Fifty-eight --

-- through 70, doesn't that reference all of the disks

10

that were in that soft-side case?

11

That is correct.

12

So there is considerably more than 75 CDs returned to

13
14

Mr. Montgomery, weren't there?


A

That is correct.

When she gave a number, I was trying to

15

remember how many we were --

16

MR. ADDINGTON:

17

THE COURT:

18

MS. GAROFALO:

19

THE COURT:

20
21

24
25

Anything on recross?
Nothing further, your Honor.

All right.

Thank you, sir, you may

step down.
THE WITNESS:

22
23

Nothing further, thank you.

Thank you.

(Witness excused.)
THE COURT:

Mr. Addington, call your next

witness, please.
MR. ADDINGTON:

Mr. Mark Thomas.

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37

M A R K
A.
T H O M A S,
called as a witness on behalf of the Government,
was sworn and testified as follows:

2
3
4

THE CLERK:
record.

5
6

Please state your full name for the

THE WITNESS:

Mark A. Thomas; last name spelled

Thomas, T-h-o-m-a-s.

THE CLERK:

Thank you.

THE COURT:

Please proceed.

MR. ADDINGTON:

10
11

You may be seated.

Thank you, your Honor.

DIRECT EXAMINATION
BY MR. ADDINGTON:

12

Mr. Thomas, can you state your occupation or profession.

13

Special Agent with the Federal Bureau of Investigation.

14

How long have you been so employed?

15

It will be four years November 14th.

16

Where are you currently assigned?

17

Miami, Florida.

18

How long have you been assigned to the Miami duty

19

station?

20

Transfer date was effective July 6, 2008.

21

And before July of 2008, where were you assigned duties?

22

The Reno resident agency of the Federal Bureau of

23

Investigation, Las Vegas Division.

24

And were you assigned to the Reno office?

25

Yes, sir.

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38

How long were you in the Reno facility?

Approximately three and a half years.

In March and April of 2007, were you, as a special agent,

assigned any duties with respect to the return of seized

property to Dennis Montgomery?

6
7
8
9
10

Yes, I was charged with the -- handling the return of

property to Dennis Montgomery and his attorney.


Q

And how did those duties come to you rather than somebody

else?
A

The previous case agent, Michael West, was promoted to a

11

supervisor position, and upon his promotion being a

12

supervisor, the case was reassigned to me.

13
14
15
16
17
18
19
20
21

Do you recall when the case was reassigned to you

approximately?
A

Approximately December or January so -- so January

of 2007 approximately.
Q

And what was your role in connection with the return of

property to Mr. Montgomery in March of 2007?


A

I was the agent in charge of doing it which meant I

coordinated the return of property.


Q

Did you prepare any type of record or inventory of your

22

actions with respect to return of property to Mr. Montgomery

23

in March of 2007?

24

Yes, sir.

25

You have some exhibit books in front of you.

The smaller

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39

of the two exhibit books contains A through E.

please turn to Exhibit C.

Would you

Do you have that, sir?

Yes, sir.

Do you recognize Exhibit C which is five pages in length?

Yes, sir.

What is it?

It's a photocopy -- photographic copy of the property

9
10

returned to Dennis Montgomery on March 29, 2007.


Q

Look at the first four pages of Exhibit C.

Do they -- do

11

those four pages, the first four pages, all bear the date

12

March 29th, '07?

13

Yes.

14

And does that date correspond to when the larger bulk of

15

materials were returned to Mr. Montgomery?

16

17

18

Yes, it does.
Look at the last page of Exhibit C.

April 6th, '07.

It bears the date

Do you see that?

19

Yes, sir.

20

What does that single page depict?

21

That page depicts the property returned to -- actually,

22

Dennis Montgomery in care of Eric Pulver on April 6th, 2007,

23

and those were the prescription medications seized during the

24

search of his residence.

25

Other than the signature of Mr. Pulver at the bottom of

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each page, is Exhibit C all your handwriting?

Yes, sir.

And is your signature at the bottom of each of the pages

of Exhibit C?

Yes, sir.

And did you actually prepare all of Exhibit C?

Yes, sir.

And is this the official FBI record of the return of

9
10

property to Mr. Montgomery?


A

Yes, sir.

11

MR. ADDINGTON:

12

THE COURT:

13

MS. GAROFALO:

14

MR. PEEK:

15

THE COURT:

16

(Government's Exhibit C received in


evidence.)
MR. ADDINGTON: Your Honor, just for the Court's

17

I move to admit Exhibit C.

Any objection?
No objection, your Honor.

No objection, your Honor.


Admitted.

18

convenience, this Exhibit C is the same as Exhibit C to

19

Mr. Montgomery's motion number 527.

20
21
22

THE COURT:

Thank you.

BY MR. ADDINGTON:
Q

Looking -- focusing on the first four pages of Exhibit C,

23

the March 29th record, can you tell me how long this process

24

took on March 29th of '07.

25

It took a few hours.

I would have to review my 302 or

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the videotape for the exact period of time, but approximately

9:30, 10:00, until approximately two o'clock.

well after lunch, we were all pretty hungry.

I know it was

And where did this process take place?

In one of the interview rooms at the Reno office of the

Federal Bureau of Investigation.

Was Mr. Montgomery present on March 29th?

Yes, sir.

In the witness room?

10

Yes, Mr. Montgomery was present in the -- in the

11

interview room along with Eric Pulver, the local attorney,

12

and -- if I mispronounce the name, Edra Blixeth, and -- I

13

can't remember the gentleman's name.

14

Scalia, the movie actor.

15
16

I think the last name is

So there were three people who accompanied Mr. Montgomery

to the FBI facility?

17

Yes, sir.

18

Did they arrive together?

19

Yes, sir.

20

Were you introduced to everyone?

21

Yes, sir.

I was introduced to Mr. Pulver, and I saw

22

Ms. Blixeth, I assumed that was Mrs. Montgomery.

I introduced

23

myself and said Mrs. Montgomery, and I was quickly corrected

24

as they were -- Ms. Blixeth and Mr. Scalia were introduced as

25

his business partners.

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And I think she pronounces her name Blixeth.


Other than those people who accompanied

Mr. Montgomery, were there other FBI personnel in the witness

room on March 29th, '07?

Yes, Supervisory Senior Resident Agent Krista Stanton,

Special Agent Gerald Devore, Special Agent Anna Brewer, and,

for a brief period of time, Special Agent Michael West.

And what was Agent Devore's role in this process?

His role was to photograph the items being returned to

10

Mr. Montgomery.

11

What was Agent Brewer's role in this process?

12

She retrieved the items out of our evidence room and

13

brought them to the interview room to facilitate the return of

14

property to Mr. Montgomery.

15

And what was Supervisory Agent Stanton's role?

16

She was there to witness the return and if any issues

17

arose and all the issues.

18

And what was Agent West's role, if any?

19

He came in at one point during the property return.

20

There was a return of a computer tower, and from my best

21

recollection, one of the bays had a hard drive, yet the second

22

bay didn't have one, and I believe they were saying there were

23

supposed to be two hard drives.

24

hard drive -- well, actually, in the physical computer itself.

25

There was one actually in the

He came in, took off the side, it had a clear side

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on it, and removed the hard drive or -- showed them the hard

drive.

3
4

To show them that there were actually two hard drives

there?

Correct.

Did everyone seem satisfied with this explanation and

demonstration?

Yes.

We're going to be spending most of our time with that

10

March 29th process, but let's look quickly at April 6th of

11

'07.

12
13

The last page of Exhibit C you mentioned reflected


the return of property to Mr. Pulver on April 6th, correct?

14

That's correct.

15

Did anybody else appear with Mr. Pulver to collect these

16

materials that are reflected on the last page of Exhibit C?

17

No, he appeared by himself.

18

And how long did that process take?

19

That was, I would guess, no more than half hour.

20

Were those items also photographed and logged out?

21

Yes, sir.

22

Going back to March 29th of '07, do you recall when the

23
24
25

Montgomery group arrived at the FBI facility?


A

Approximately, I'd say, between 9:30 and ten o'clock,

10:15, somewhere in there.

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And approximately what time did they leave?

Approximately two o'clock.

And did you take any breaks in the meantime, break for

4
5

lunch, or did it go right straight through?


A

There was no break for lunch.

I know Mr. Scalia ran out

and got some coffee, may have gotten some doughnuts, but we

pretty much worked straight through.

8
9
10
11

Can you describe, perhaps in narrative fashion, what you

did with respect to each item as it came through the room and
moved to Mr. Montgomery's possession.
A

What was the process?

Basically, the process was I provided Mr. Pulver a copy

12

of our property -- items seized during both the search of the

13

residence and the storage units.

14

had a printout of our evidence log of what we had in evidence.

15

I had a copy of it by me.

And then Anna, Special Agent Brewer, would --

16

retrieved items out of the evidence room, bring them in, and

17

starting with item 1 on the property return where they were

18

brought into the evidence room, where they were returned to

19

Mr. Montgomery and Mr. Pulver, and Mr. Devore then would

20

photograph said items after them being taken out of the boxes

21

or however they were stored at our office.

22
23
24
25

Okay.

Then looking at Exhibit C, the first page, how

were those entries made on that page?


A

They were -- I -- I handwrote it as Special Agent Brewer

brought them into our interview room and in the order that I

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1
2

returned it to Mr. Pulver and Mr. Montgomery.


Q

So is it correct to say, then, that you started with a

blank page, which is now Exhibit C, and then made entries as

you went along?

That is correct.

What did Mr. Pulver do during this process?

Mr. Pulver witnessed the return, he took notes during the

return, and from my recollection, he -- on the items seized

list, he was comparing that to the items seized and items

10

returned and marking off what we had returned and comparing it

11

to items seized.

12
13

And what did Ms. Blixeth do with respect to this process

of returning?

14

Nothing, just sat there and watched.

15

And what did Mr. Scalia do, if anything?

16

Same thing, just sat there and watched.

17

Once the materials were handed over and logged out to

18

Mr. Montgomery or Mr. Pulver and documented, what happened to

19

those materials?

20

They were taken out of the interview room, and at that

21

point I didn't have sight of it, but I know they would be

22

taken downstairs to a vehicle they had downstairs.

23

MS. GAROFALO:

24

THE COURT:

Objection, calls for speculation.

Overruled.

Go ahead.

25

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1
2

BY MR. ADDINGTON:
Q

At the time of the return of property on March 29th, '07,

did you have with you the inventories prepared by FBI of the

seizure of the materials?

Yes, sir.

Turn to Exhibit A, please, in that same book.

Do you recognize Exhibit A, Agent Thomas?

Yes, sir.

What is Exhibit A?

10

It is an item -- a property seized list dated March 8th,

11
12
13

2006.
Q

Does that correspond to the seizure of materials from

Mr. Montgomery's home on that date?

14

MS. GAROFALO:

Objection, lacks foundation.

15

MR. ADDINGTON:

I believe the witness has

16

already identified what it is.

17

MS. GAROFALO:

He identified it as a generic

18

list.

19

not know what the list was or, indeed, has not testified when

20

the list was prepared.

21

BY MR. ADDINGTON:

22
23
24
25

Unless the witness was present at the seizure, he would

Agent Thomas, were you present at the search of

Mr. Montgomery's home?


A

Yes, I was present at the search of his residence and the

storage units.

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1
2

Do you recognize Exhibit A as the return of inventory

with respect to the warrant that was executed --

Yes, sir.

-- at Mr. Montgomery's home?

Yes, sir.

6
7

THE COURT:

10

MR. ADDINGTON:

Similar to Exhibit C, your

Honor, just for the Court's purposes, Exhibit A is also


included in Exhibit A to Montgomery's motion number 527.

11
12

THE COURT:

Thank you.

BY MR. ADDINGTON:

13

Turn to Exhibit B, please, Agent Thomas.

14

Yes, sir.

15

Do you recognize Exhibit B?

16

Yes, sir.

17

What is it?

18

It is a property -- a list of items seized from

19
20

Go

ahead.

8
9

I'll overrule the objection.

March 3rd, 2006, out of the storage units.


Q

And is it the return that was part of the filing with the

21

court for the return of that warrant that was executed at that

22

storage unit?

23
24
25

Yes, sir, and so was the previous, and that's where I got

the date of March 8th, I read the bottom of it.


MR. ADDINGTON:

Move to admit A and B if not

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previously admitted.

THE COURT:

MS. GAROFALO:

MR. PEEK:

THE COURT:

(Government's Exhibits A and B received


in evidence.)
MR. ADDINGTON: Thank you, your Honor.

7
8
9
10

Any objection?
No, your Honor.

None, your Honor.


A and B are admitted.

BY MR. ADDINGTON:
Q

So, Agent Thomas, you had A and B with you at the time

items were returned to Mr. Montgomery?

11

Yes, and so did Eric Pulver.

12

And how did you use A and B during this process of

13
14

returning materials to Mr. Montgomery on March 29th?


A

Generally, I had them there to -- my primary concern

15

during the property return was to comply with the court order

16

returning all items seized from both searches, and that was

17

there to ensure that I had returned all items from said

18

searches.

19

And I -- so I gave a copy to Mr. Pulver for him to

20

cross-reference everything that we were returning to make sure

21

they were happy with what -- that we had complied with the

22

court order.

23

You mentioned that you were present during the search of

24

the Buckthorne residence and the search of the storage units,

25

correct?

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That is correct, sir.

Were photographs taken at the time of those two searches?

Yes, sir -- yes.

Have you reviewed those photographs that were taken at

the time of the search of the Buckthorne residence?

Yes, sir.

Look in the larger book of exhibits that you should have

there.

It should contain Exhibits F, G and H, and please turn

to Exhibit F.

10

Yes, sir.

11

This appears to be a collection of photographs labeled at

12

the bottom right, Storage Unit Number 1 through Storage Unit

13

Number 65.

14

Am I looking at the same exhibit you're looking at?

15

Yes, sir.

16

What are those photographs?

17

Those are photographs of the storage units that we

18

searched on March 3rd, 2006.

19

MR. ADDINGTON:

20

THE COURT:

21

MS. GAROFALO:

22

MR. PEEK:

23

THE COURT:

24

Move to admit Exhibit F.

Any objection?
No objection, your Honor.

No objection, your Honor.


F is admitted.

(Government's Exhibit F received in


evidence.)

25

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1
2
3

BY MR. ADDINGTON:
Q

Turn to Exhibit G, please.

This is also a collection of

photographs, correct?

Yes, sir.

Were photographs taken during the search of the

Buckthorne residence?

Yes, they were.

Exhibit G begins labeled Buckthorne 30 and continues

through Buckthorne 91.

Do you see that?

10

Yes, sir.

11

And there are gaps in the sequence, aren't there?

12

Yes, sir.

13

Is Exhibit G an excerpt from the photographs taken at the

14
15
16

Buckthorne residence on March 1st, 2006?


A

Yes, these are all photos taken from the search of the

residence.

17
18

MR. ADDINGTON:

Move to admit Exhibit G, your

Honor.

19

THE COURT:

20

MS. GAROFALO:

21

MR. PEEK:

22

THE COURT:

23

(Government's Exhibit G received in


evidence.)
MR. ADDINGTON: And, your Honor, I would note

24
25

Any objection?
No objection.

No objection.
G is admitted.

that the official exhibit that the witness has also contains

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the CD from which these photos were derived.

BY MR. ADDINGTON:

Go back to Exhibit C for a moment, Agent Thomas.

Yes, sir.

And look at item 1 on Exhibit C.

Yes.

What is the item being returned as reflected on item 1 of

8
9
10

Exhibit C?
A

As reflected on item 1 of Exhibit C, it states one silver

aluminum Li tower.

11

And then does it have other descriptive language?

12

Yes, sir.

And I was to list the serial number, there was

13

no serial number.

14

the serial number.

15

and I also listed our evidence bar code number and -- yeah,

16

and the serial number on it was ending in 504.

17

There was, I believe -- later on I found


It says Dennis Home with a label of 92705,

The serial number ending in 504, is that the serial

18

number of the computer device, or is that the serial number of

19

the internal hard drive?

20

That would be the computer device.

21

Doesn't it say in the first line no serial number?

22

That is correct.

23

Okay.

24
25

So please clarify for me, what does the serial

number correspond to or do you know?


A

I -- from my recollection, I didn't see initially the

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1
2
3
4
5
6

serial number, and I later on saw the serial number.


Q

And it also had a three-and-a-half-inch floppy disk in

the drive, correct?


A

That's correct.

I noted there was one 3.5 floppy disk in

the drive.
Q

And you mentioned the bar code number.

Is that the

number that begins with the letter E and ends with the numbers

082 on the second line?

9
10
11

That is correct.

That is something that we assigned to

it, that is, we at the FBI.


Q

Does item 1 on Exhibit C being returned to Mr. Montgomery

12

correspond to item 12 on Exhibit A having been seized from

13

Mr. Montgomery's home?

14

Yes, it does.

15

And look at Exhibit E, please, the second photograph

16

labeled 002.

17

Yes, sir.

18

Does that photograph depict the same item?

19

Yes, and it has a label on it, Dennis Home 92705.

20

And that's the same descriptive language that you used in

21

Exhibit C?

22

That is correct, sir.

23

And can you see the floppy disk in photograph number 2 --

24

Yes.

25

-- of Exhibit E?

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Yes, sir.

Is it apparent to you from the Photograph 002 that

there's a hard drive in that device?

Yes, sir.

Go to photograph numbered 3, the next photograph.

6
7
8

What

does that photo depict?


A

That photo depicts the same CPU tower with the floppy

disk in it and a hard drive.

Was that the hard drive that was removed from that tower?

10

Yes.

11

And does photo number 4 show the same thing as photo

12

number 3?

13

Yes, it does.

14

And photo number 5 is blurry so we're not going to look

15

at it.

16
17

Does photo number 6 show anything that is -- that


pertains to this item number 1 on Exhibit C?

18

I'm sorry, can you repeat the question?

19

Does photograph number 6 in Exhibit E, Mr. Devore's

20

photograph, does it show the same item that is reflected as

21

being returned to Mr. Montgomery on item 1 of Exhibit C?

22
23
24
25

Yes, this is the CPU tower, and this is one I would

call -- with the clear side on it.


Q

Okay.

So this was the device where the issue arose about

the number of hard drives?

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That is correct, sir.

And what does photograph number 7 show with respect to

3
4
5
6

this particular device, if anything?


A

Number 7 shows the back of the same CPU tower that was

returned to Mr. Montgomery and the one with the clear side.
Q

And can you describe again how this issue was resolved

with respect to whether there was a hard drive or whether

there wasn't a hard drive in this particular tower?

Yes.

Yes, sir.

Again, when Special Agent West came into

10

the room, the -- there's two bay slots in the tower, one of

11

the bay slots is empty, the other has a plastic container

12

which would contain a hard drive, and they were starting to

13

complain that the hard drive was missing.

14

The hard drive was contained, actually, within the

15

tower itself, and that's when Mr. West came in and took off

16

the side, and we obtained the hard drive.

17

And so, in your mind, was there a satisfactory resolution

18

of this issue of whether there was a sufficient number of hard

19

drives in that particular tower when it was returned to

20

Mr. Montgomery?

21

Yes, sir.

22

Turn to Exhibit G, the first photograph numbered 30.

23

Yes, sir.

24

And is this same item that we've been describing, item 1

25

of Exhibit C, is that same item pictured in this photograph?

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1
2
3

Yes, sir, and that was located at the residence in his

office.
Q

Now, it looks like there's one stacked on top of another.

Which item is this item that we're referring to, item 1 of

Exhibit C?

It's the bottom CPU tower that's labeled Dennis Home with

same date, and you can see the yellow floppy disk in the 3.5

floppy slot.

9
10

So you can see the floppy disk in there at the time it

was seized, correct?

11

Yes, sir.

12

Can you also see there's a hard drive installed in that

13

tower in that photograph?

14

In the photograph it depicts it the same way we returned

15

it.

It was an empty bottom slot where a hard drive can be --

16

can be placed.

17

the tower when we returned it.

18

It shows the same plastic carrier that was in

And so is the item that was returned to Mr. Montgomery as

19

item 1 on Exhibit C the same item that was seized from

20

Mr. Montgomery's home?

21

Yes, it is.

22

Okay.

Thank you.

23

Go to item 2 on Exhibit C.

24

is being returned to Mr. Montgomery in item 2?

25

What item -- what thing

Item 2 is one HP Pavilion DV 1000.

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All right.

And then is there a serial number after that?

Yes.

For that device?

Yes, sir.

And it also has an evidence control number ending in 075?

Yes, it does.

All right.

Does that item being returned to

Mr. Montgomery on March 29th, '07, correspond to item number 1

of Exhibit A, the seizure inventory?

10

Yes, it does.

11

Is it the same serial number on Exhibit A as in Exhibit

12

C?

13

Yes, it is.

14

And turn to Exhibit E, please, photograph number 8.

15

Yes.

16

THE COURT:

17

MR. ADDINGTON:

18

I'm sorry, your Honor, photograph number 8.

19

BY MR. ADDINGTON:

20
21
22
23

Sir, which exhibit, Mr. Addington?


I may have missed -- Exhibit E,

Is that the same item that is reflected on Exhibit C as

item 2 being returned to Mr. Montgomery?


A

I'm sorry, I -- the initial photo I was referring to --

here it is.

24

I'm looking at photograph -- Exhibit E, photograph 8.

25

It's the same item, yes.

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1
2

And is the same item pictured in the following photograph

number 9 of Exhibit E?

Yes, it is, it's just the notebook opened up.

And is the same item reflected in photograph number 10 of

5
6
7
8
9
10

Exhibit E?
A

Yes, and that's just the bottom, and it shows the serial

number.
Q

And going to Exhibit G, the photographs of the seizure of

items, if you go to photograph number 59, will you please turn


to that.

11

Yes, sir.

12

Does that photograph correspond to the same item that was

13

returned to Mr. Montgomery as item number 2 of Exhibit C?

14

Yes, it does.

15

Do the serial numbers correspond?

16

Yes, it does.

17

Is the item that was returned to Mr. Montgomery as item 2

18

of Exhibit C the same as what was seized from Mr. Montgomery?

19

Yes, it is.

20

Go to item number 3 on Exhibit C.

21

Yes, sir.

22

And without reading the full description, in layman's

23

terms, what is it that's being returned to Mr. Montgomery

24

here?

25

A storage tower.

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And did it also contain hard drives?

Yes, two.

And did you record the serial number for the -- for the

tower as well as the two hard drives?

Yes, I did.

So the hard drives had separate serial numbers?

That is correct.

Does that item 3 of Exhibit C being returned to

9
10

Mr. Montgomery correspond to item number 11 on Exhibit A at


the time of the seizure?

11

Yes, it does.

12

Do the serial numbers match for the tower?

13

For the tower, yes, they do.

14

If you turn to the photograph taken by Agent Devore,

15

Exhibit E, to photograph number 11, what does that photograph

16

depict with respect to this item?

17

It's showing the backside of the storage tower.

18

And if you turn to the next photograph, do you see the

19

same item?

20

Yes, sir, it's the front view.

21

And if you go to the next page, do you see the next item

22

with the evidence control number indicated?

23

Yes, I do.

24

And if you go to photograph number 15, what does that

25

photograph depict with respect to this particular item?

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59

1
2
3
4
5
6
7

Those are the two hard drives contained in the storage

tower.
Q

And the next two photographs after that, numbers 16 and

17 of Exhibit E, what do those photographs show?


A

They're individual photos of the two -- of each hard

drive contained in the storage tower.


Q

And do those serial numbers on those two hard drives

correspond to the serial numbers in your inventory, Exhibit C,

item 3?

10

Yes, they do.

11

So there was a tower and two hard drives returned,

12

correct?

13

That is correct.

14

Turn to Exhibit G, please, the photographs at the time of

15

the search, photograph number 31.

16

Yes, sir.

17

Does that photograph depict this same item as we've been

18
19
20
21
22

talking about, item 3 on Exhibit C?


A

Yes, that would be the backside showing all the power

connections.
Q

And is there a serial number indicated on this photograph

that corresponds to the serial number in Exhibit C, item 3?

23

Yes.

24

So it's the same item, right?

25

Yes, sir.

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1
2

Turn to photograph number 35, please.

Is that the

backside of the same device that's on top of another device?

Yes, sir.

Turn to photograph number 46 of that same Exhibit G.

Let

me know when you're there.

Okay.

Does the label that appears on the -- towards the top of

that device correspond to the descriptive language that you

used in Exhibit C, item 2?

10

Yes, it does.

11

So is it the same device?

12

Yes, it is.

13

And in photograph number 46 that we're looking at, at the

14

time of the seizure, can you see whether there are two hard

15

drives installed in that device?

16

Yes, on the top and the bottom they have the plastic

17

carriers, but through the slots in the plastic carriers,

18

you're able to see the label sections where the serial numbers

19

are for the hard drives.

20

So based on what you're looking at, Exhibit -- I'm sorry,

21

photograph 46, Exhibit G, can you state whether there were two

22

hard drives installed on this device at the time of the

23

seizure.

24
25

Yes, sir.

There was a total of four bay slots with two

slots occupied by hard drives.

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1
2

So is what was returned as item 3 of Exhibit C the same

as what was seized from Mr. Montgomery?

Yes, it is.

Go to item number 4 of Exhibit C.

Yes, sir.

And without reading the full description, can you

generically describe what is being returned to Mr. Montgomery

as item 4.

A digital server with two hard drives.

10

Similar to item 3 but obviously different serial numbers?

11

Yes.

12

And a different evidence number, correct?

13

That is correct.

14

And it's labeled differently, correct?

15

That is correct.

16

And you have two hard drives with serial numbers

17

corresponding; is that correct?

18

That is correct, sir.

19

Does this item 4 of Exhibit C correspond to item 15 on

20

Exhibit A?

21

Yes, it does.

22

And how do you know that from the descriptive language?

23

It's dealing with the -- item 15 is labeled Granite

24

Digital server, labeled -- the letters DOE, January 20th,

25

2006, P-R-O-G, and the -- that's how the -- I described said

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1
2

item on the return.


Q

Okay.

And looking at Exhibit E, photograph number 21,

can you tell me whether that photograph depicts this same

device that you are describing in item 4 of Exhibit C?

Yes, it is.

And can you relate it to the same evidence control number

that's visible on Photograph 21?

Yes, I can.

And the photographs that follow, 21, 22, 23 and 24, are

10

those the same -- are those pictures of the same item, item

11

number 4 of Exhibit C?

12

Yes, same item just different views from it -- of it.

13

Go to photograph number 25, and what can you tell me

14

about what is depicted there with respect to this item.

15

of all, is it the same item?

16

First

It is the same item, and the photo depicts that the

17

plastic carriers have been pulled off to show that there's two

18

plastic carriers in the item.

19

And did those plastic carriers contain hard drives?

20

Yes, they did.

21

And go to the next photograph number 26 of Exhibit E.

22
23
24
25

What does that photograph depict with respect to this item?


A

The two hard drives contained in each of the -- the hard

drives contained in each of the plastic carriers in the tower.


Q

Do the serial numbers for those hard drives on photograph

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number 26 correspond to the recorded serial numbers that you

indicated on item 4, Exhibit C?

Yes, they do.

And go to Exhibit G again, the photographs from the

residence search, photograph numbered 82.

Yes, sir.

Based on the label that appears on that device in that

photo, is that the same device that you returned to

Mr. Montgomery as item 4, Exhibit C?

10

Yes, sir.

11

And is it -- can you state whether or not there are two

12

hard drives installed on that device at the time of the

13

seizure?

14

Yes.

Once again, as the previous server, you're able to

15

see through the slots, the white labeling of the hard drives

16

which contain the manufacturing and serial number and so

17

forth.

18
19

So was what was returned to Mr. Montgomery as item 4 on

Exhibit C the same as what was seized from Mr. Montgomery?

20

Yes, sir.

21

Go to item 5 of Exhibit C.

Again, can you describe in

22

layman's terms without reading it what is it that's being

23

returned to Mr. Montgomery?

24
25

It's a -- well, it's one of the copies of the hard drives

that we made, we as the FBI, of the item, one of the hard

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drives seized from Mr. Montgomery.

It's a forensic copy.

A forensic copy of something that was seized?

Yes, sir.

And so after you make a forensic copy, you have two,

right?

That is correct.

So are you returning here in item 5 the copy that was

8
9

made, the forensic copy?


A

Yes, sir.

We were complying with the court order, all

10

items seized, and since that item was derived from item seized

11

from the searches, it was returned to Mr. Montgomery.

12
13

Did you have any role in connection with making the

forensic copy?

14

No, I don't have the technical background for that.

15

And if you turn to photograph number 30 of Exhibit E, can

16

you tell me whether that is the forensic copy that was made as

17

reflected in item 5, Exhibit C?

18

I'm sorry, what page?

19

Photograph number 30 of Exhibit E, is that the same as

20

item 5 of Exhibit C?

21

Yes, it is.

22

And the descriptive language that you used to describe

23

item 5 in Exhibit C says that it's evidence derived from HP

24

Pavilion notebook, et cetera, et cetera, correct?

25

That is correct.

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1
2

So was that evidence derived from item 2 of Exhibit C,

the HP Pavilion?

Yes.

Did any issue arise on March 29th of '07 when the

materials were being returned about where this item 5 came

from?

No.

I explained to Mr. Pulver and Mr. Montgomery that

what we were returning to them were forensic copies of hard

drives that we had imaged, and that they had not been reviewed

10

pending the 41(g) and attorney-client privilege motion before

11

the court, and they were identical copies of items taken from

12

his residence.

13
14

Was any dissatisfaction expressed at that time regarding

that explanation?

15

No, everyone understood what they were.

16

Is item 5 of Exhibit C an example of something that was

17

given to Mr. Montgomery on that date but which had not been

18

seized as a separate item?

19

That is correct.

If you want to classify it as an extra

20

hard drive or whatever, it was a forensic copy we made for --

21

in preparation for our investigation.

22

All right.

Go to item number 6, please, and, again,

23

generally describe what is it that's being returned to

24

Mr. Montgomery.

25

As the previous item number 5, this is, once again, a

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forensic copy of a hard drive that we, the FBI, had made as a

part of our investigation.

3
4

So item 6 as a physical item was not seized from

Mr. Montgomery, correct?

No, it was derived from items seized from Mr. Montgomery.

And the language that you use there, derived from custom

tower, et cetera, et cetera, was that derived from item 1 of

Exhibit C?

Yes.

10

It uses the same serial number in Exhibit 6 as in

11

Exhibit -- I'm sorry, item 6 as in item 1?

12

That is correct.

13

And if you turn to Mr. Devore's photographs number 31, 32

14

and 33, are those photographs of this forensic copy being

15

returned to Mr. Montgomery?

16

Yes.

17

So this is another example of an item being given to

18

Mr. Montgomery but which had not been physically seized from

19

Mr. Montgomery; is that fair to say?

20

That is correct, and you see the Post-It label on there

21

that uses the word image, and that's referring to a forensic

22

copy that was imaged from something seized.

23

All right.

Go to number 7 of Exhibit C, please.

24

Yes, sir.

25

What is it that's being returned to Mr. Montgomery in

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item 7?

Eleven sealed hard drives.

And did you separately identify all the serial numbers

for those hard drives?

Yes, I did.

Does that item number 7 of Exhibit C being returned to

Mr. Montgomery correspond to item 8 in Exhibit B, the seizure

inventory from the storage unit?

Yes.

10

If you look on Mr. Devore's photographs number 34, are

11

those the 11 sealed hard drives that were returned as item 7

12

in Exhibit C?

13

Yes.

14

And then the photographs that follow photograph number

15

34, are those individual photographs of each individually

16

sealed package of a hard drive?

17
18
19
20

That is correct, so that we were able to see the serial

numbers.
Q

And do the serial numbers on those photographs correspond

to the serial numbers that you recorded in item 7, Exhibit C?

21

Yes.

22

Turn to Exhibit F, the photographs from the storage unit

23

seizure, photograph number 37, please.

24
25

Do you have that, sir?


A

I think I'm looking at the wrong grouping here.

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Exhibit F?

Yeah, I was looking at the residence, sorry.

Exhibit F, photograph number 37.

Okay.

Are those the same 11 hard drives in sealed packages that

6
7
8

are reflected in item 7 of Exhibit C?


A

Yes, they are, and I specifically recall seeing them at

the storage unit.

At the time of the seizure?

10

Yes, sir.

11

Were they seized in the sealed packages?

12

Yes, they were.

13

And are they transparent sealed packages so you can see

14

the serial number through the packaging?

15

Yes.

16

And were they returned in the same sealed packaging?

17

Yes, they were.

18

So was what was returned to Mr. Montgomery as item 7 on

19

Exhibit C the same as what was seized from Mr. Montgomery?

20

Yes.

21

Go to item number 8 on the next page of Exhibit C.

22

is it that's being returned to Mr. Montgomery as item 8?

23

Three -- multiple hard drives.

24

Do you know how many were returned as reflected in

25

What

item 8?

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Let me count them.

Did you separately record the serial numbers?

Yes, I did.

So you can count the serial numbers to see how many?

Yes, sir.

Please do so and tell us how many.

The first count was ten.

Are you counting again?

Just to make sure; ten.

10

Good.

11

Do the ten -- I'm sorry.

You recorded the

individual serial numbers for those hard drives, correct?

12

Yes, sir.

13

And are they all from the same manufacturers or are they

14
15
16

from all different manufacturers?


A

The first one is from Citigate, another one from Western

Digital, Western Digital --

17

Are they from the same or different --

18

Different manufacturers.

19

Do those ten hard drives reflected as item 8 in Exhibit C

I see two manufacturers.

20

correspond to the -- to what was seized as reflected in

21

item 10 of Exhibit B?

22

Yes.

23

And if you turn to the photographs that Mr. -- Agent

24

Devore took in Exhibit E, photograph number 47, please, can

25

you turn to that.

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Yes, sir.

Does photograph number 47 of Exhibit E picture the ten

hard drives that were returned to Mr. Montgomery and recorded

as item 8 of Exhibit C?

Yes, they do.

And they're all grouped together, correct, on that

photograph?

Yes, sir.

And the photographs that follow photograph 47, are those

10

individual photographs of those same ten hard drives?

11

That is correct.

12

And that goes through photograph number 46, correct?

13

47 through --

14

I'm sorry, through number 57.

15

Are those all photographs

of those same ten hard drives?

16

Yes, they are.

17

Either together or individually?

18

Yes, sir.

19

Now, these ten hard drives are not in sealed packages,

20

are they?

21

No, they're not.

22

Were they seized in sealed packages?

23

No.

24
25

If they were, they would have been in sealed

packages.
Q

I'm sorry, I didn't understand what you said.

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I said no, they were not in sealed packages.

If they

were in sealed packages, they would most likely remain in

sealed packages.

Turn to Exhibit F, the photographs from the storage unit,

and specifically photograph number 41.

photograph show?

7
8
9

What does that

A box full of computer equipment which I see several hard

drives in there.
Q

And is the way these materials in this box are pictured

10

in this photograph number 41, is that how those materials

11

appeared when they were first located in the storage unit?

12

Yes.

13

And --

14

They appeared in the photo as we found them.

15

Do you recall seeing this box of hard drives in the

16

storage unit?

17

Yes.

18

Did there appear to be any organizational method to how

19

these materials were placed into that box?

20

Absolutely not.

21

Turn to page 47, photograph number 47 in that same

22
23
24
25

Exhibit F.
A

And, once again, I recall seeing boxes of -- that box at

the time of the seizure, and -Q

Is this a photograph of the same box, photograph number

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47, the same as 41?

Yes.

And, again, is that how they were found as depicted in

that photograph?

Yes.

Were the ten hard drives that were returned to

Mr. Montgomery as item 8 in Exhibit C hard drives that were

located in the storage unit as photographed in this box in

photograph number 41 and 47?

10

Yes, they are.

11

Are the hard drives that were returned to Mr. Montgomery

12

as item 8 of Exhibit C the same as what was seized from

13

Mr. Montgomery?

14

Yes, they were.

15

Please turn to Exhibit C again.

16

We've gone through eight

of these items, correct?

17

Yes, sir.

18

And there's a total of 29 items, correct?

19

Yes, sir.

20

Go to number 9.

21

Yes, sir.

22

MR. ADDINGTON:

And, your Honor, if I could

23

interject, I am doing this because there is no specificity to

24

what the discrepancy was and so I'm obliged to go item by item

25

through this process.

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I'm not trying to waste anybody's time, but as the

Court indicated at the outset, the declaration of

Mr. Montgomery does not specify what discrepancy there is or

what anomaly there is so that's why this process is unfolding.

THE COURT:

Any comment, Ms. Garofalo?

MS. GAROFALO:

As we represented to the Court in

our papers asking to continue this motion, and as

Mr. Addington and I have discussed, we do not dispute now,

having received the government's explanation of the additional

10

hard drives, that the inventories are not disparate.

11

I did not believe this was an issue any longer, but

12

Mr. Addington felt it was necessary to go through the process

13

with the Court.

14

MR. ADDINGTON:

I could express clearly, I hope,

15

the concern I have, is that I'm hoping to establish through

16

this testimony that nothing was damaged, nothing was

17

destroyed, nothing is missing, no data was disrupted or

18

altered in any way, and that there was no irregularity to the

19

way the materials were seized, processed and returned.

20

is what I'm trying to establish.

That

21

If there is a concession or stipulation to that

22

effect, I'm pleased to not move forward through this same

23

process as to each and every item, but that is what I'm

24

attempting to establish because I think that that's what the

25

motion sought.

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THE COURT:

Ms. Garofalo.

MS. GAROFALO:

This exercise does not establish

whether or not hard drives, CDs and so forth, were damaged.

It certainly does not establish chain of custody and whether

or not this evidence was handled properly while in the custody

of the FBI and the government.

All this does is correlate the return inventory, the

returned items with the seized items, and, again, we have

agreed, we have so represented to the Court that we accept the

10

explanation of why there were additional hard drives, several

11

other additional items which make the list appear disparate.

12

There is one remaining issue as to floppy drives

13

that we can get to that are identified on the seizure list,

14

but generally speaking we have represented to this Court that

15

we accept the government's representations with regard to the

16

items returned and the items seized.

17

THE COURT:

All right.

Well, let me just

18

then -- let's look at Mr. Montgomery's declaration, docket

19

466.

20

line 5, "Some forms of" -- well, let me just read the entire

21

paragraph into the record.

22
23

He says at paragraph 8, at line 6, page 3 -- well,

"The volume" -- paragraph 8,


"The volume of my work over the last 35 years

24

is enormous.

There are hundreds of millions of files

25

that were kept and maintained in various media forms

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before the illegal raid.

require specific devices or software to restore the

work to a readable format which are not readily

available.

over time was seized and never returned to me by the

FBI.

cases, destruction of the data make it difficult to

gather the information necessary to reconstruct the

work product to the point in time it was made."

10
11

Some forms of this media

At least one of these devices that I kept

The FBI's mishandling of this data and, in some

So I guess, Ms. Garofalo, the question I have is


Mr. Montgomery says,

12

"At least one of these devices that I kept

13

over time was seized and never returned to me by the

14

FBI."

15
16
17

So what's your position as to that statement by


Mr. Montgomery?
MS. GAROFALO:

With respect to the devices

18

themselves, as the Court knows, we have undertaken to --

19

recently to comply with the Court's orders to identify all of

20

the evidence returned.

21

There was some confusion as to what was returned for

22

a period of time.

We are now satisfied, listening to the

23

government's explanation and seeing now the photographs and

24

the serial numbers that weren't on the original seizure list,

25

that the government has returned those items.

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If Mr. Montgomery was mistaken, I apologize to the

Court, but we are now satisfied, again, after meeting and

conferring with the government, looking at additional

information and doing additional searches to produce material,

that we have located the items and produced everything that is

to be produced.

The genesis of these motions was that there were

discovery requests saying produce everything that was seized

and returned by the FBI, and in an effort to avoid a further

10

dispute over what was seized, whether we were really returning

11

stuff that we had or should have had, we originally sought to

12

have this evidentiary hearing.

13

We have now determined that we have received back

14

items.

There are still issues with respect to CDs.

15

still issues with respect to the material stored on the

16

electronic media, but with respect to the towers and the

17

physical components that were seized, we agree with

18

Mr. Addington that those were returned to Mr. Montgomery.

19
20

THE COURT:

Okay.

There are

So what Mr. Montgomery says

in his declaration is -- this is what I'm interested in.

21

"At least one of these devices that I kept

22

over time was seized and never returned to me by the

23

FBI."

24

And you are representing that Mr. Montgomery is now

25

no longer contesting that a device that he kept over time was

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seized and never returned to him by the FBI; is that correct?

MS. GAROFALO:

THE COURT:

All right.

So that issue you're

saying is now resolved.

MS. GAROFALO:

THE COURT:

That's correct, your Honor.

Yes, your Honor.

All right.

Then you're saying --

then he says in the next line of paragraph 8,

"The FBI's mishandling of this data and, in

some cases, destruction of the data, make it

10

difficult to gather information necessary to

11

reconstruct the work product."

12
13

And I guess what you're saying is that is still an


issue.

14

MS. GAROFALO:

15

THE COURT:

16
17

That's correct, your Honor.

Okay.

Paragraph 10 of his

declaration, he says,
"On information and belief, it appears clear

18

that the FBI has taken some of my intellectual

19

property and to this day has never returned it.

20

can be shown by discrepancies between the FBI

21

inventory seizure list and the FBI return list.

22

There are errors and omissions that have not been

23

explained or resolved to this date.

24

exactly what data was kept by the FBI, to the extent

25

it would ever acknowledge that some was, in fact,

This

Without knowing

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retained, it makes it impossible to ultimately

determine how the reconstruction of the work product

can be determined, if it can be done at all."

So am I to understand today that you are conceding

that since Mr. Montgomery is no longer claiming -- so is

Mr. Montgomery just ask -- is he still taking the position the

FBI took items of intellectual property and didn't return it,

or does he agree that it's all been returned?

MS. GAROFALO:

Well, he -- the problem that we

10

have, your Honor, is still with the CDs, and when we get to

11

examine Agent Thompson [sic] and Agent West, the Court will

12

see how the CDs were maintained or not maintained and so

13

forth.

14

And we are having a very difficult time actually

15

tracking what there was, how it was maintained, who had

16

access, who may have copied, who may have taken information,

17

or who may have tampered with those CDs.

18
19

There are an enormous number of CDs as Mr. Addington


has established, and some are damaged.

20
21

There are problems with the chain of custody and the


way these materials were handled, particularly by Agent West.

22

THE COURT:

All right.

Let me just interrupt

23

you.

I'm just really trying to ask a simple question, and I

24

appreciate you're wanting -- and perhaps your response is that

25

it's not so simple to answer, and I appreciate that, but

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just --

MS. GAROFALO:

THE COURT:

As to the --

Just let me -- is he still claiming

the FBI has taken some of his intellectual property and to

this day has never returned it?

MS. GAROFALO:

As to the physical items, we

agree they were returned.

We don't know what the FBI may have

copied or taken off CDs and hard drives that has not been

disclosed to us, and given the chain of custody, it is still a

10

mystery to us as to who had access, who may still have

11

material, but the physical items --

12

THE COURT:

All right.

13

MS. GAROFALO:

14

drives, the CPU units --

15

THE COURT:

16

MS. GAROFALO:

17

THE COURT:

18
19

-- the CDs themselves, the hard

All right.
-- were returned.

All right.

So I understand.

All

right.
So I guess, Mr. Addington, your view is that in

20

order to address any claims by the Montgomery parties, most

21

specifically Mr. Montgomery, that there are any issues with

22

respect to all of the items seized and all of the items

23

returned, you are required to go through every single one of

24

these items with those who had control, who were present

25

during the seizure and present during the return, and to

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identify what was seized and what was returned.

you're saying?

MR. ADDINGTON:

Is that what

Yes, because it establishes the

regularity of the proceeding and the process that the FBI

undertook at the time of the search, and the processing of

that material into FBI custody that Agent West will primarily

testify about, and the process of returning, that there was a

process, and that there was a -- an effort made to maintain a

reasonable process and documented process.

10
11

THE COURT:

So how long do you anticipate this

will take?

12

MR. ADDINGTON:

13

through 8.

There's 21 more.

14

than others and simple.

We have gone through items 1


Some of them are much shorter

15

If the issue is CDs specifically, then I can go to

16

the CDs, although I'm not getting the sense that the CDs are

17

really any differently handled or processed than the other

18

materials.

So --

19

THE COURT:

20

MR. ADDINGTON:

21

24
25

This interlude, I think, is

perhaps not going anywhere, that I should simply proceed.

22
23

All right.

THE COURT:

And then who do you propose to put

on after that?
MR. ADDINGTON:

Agent Mike West will testify

primarily focusing on the organization of the materials that

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were found in the storage unit, that there was no organization

as Mr. Montgomery stated in his declaration, that there was

nothing destroyed or altered.

Agent West will testify about the forensic copying

process, that that did not alter or destroy any data, and that

no other materials were commingled with these seized

materials, that no materials were tainted with outside

extraneous materials, that no materials were damaged or

destroyed.

10

And he will identify the chain of custody for -- or

11

at least the chain of custody paperwork.

12

through each specific item with him, I'll leave that to

13

Ms. Garofalo if she wants to identify specific items, but he

14

will at least identify the paperwork that documents the chain

15

of custody.

16

THE COURT:

17

MR. ADDINGTON:

18

THE COURT:

I'm not going to go

Anyone else?
That's all.

Well, I had, perhaps

19

optimistically -- I don't know if anyone else remembers this,

20

but I do, I said we were going to have this evidentiary

21

hearing from 9:00 to noon, and it is now ten minutes to 11:00.

22

So I am -- that's fine, we will proceed and we will continue

23

to proceed until we finish.

24
25

That's fine.

I'm dismayed that this is the case, and I wasn't so


advised.

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But what we're going to do is take a brief recess.

I have to -- what I'm going to do is obviously this is going

to go into the afternoon and perhaps the balance of the day,

and perhaps we will not finish.

That's fine.

We'll reset it.

But what I would -- we're going to take a ten-minute

recess.

We are going to -- and then if counsel has -- can

discuss some ideas they might have about how you can expedite

the hearing and cut to the heart of the issues the parties

believe to be before them, the Court welcomes that and will

10

hear from counsel at 11:00 a.m.

11

slog through this.

12

If not, that's fine, we will

I will be taking a lunch recess at 11:30, however,

13

as I have an obligation, and we would reconvene at

14

one o'clock.

15
16

So, counsel, take a recess, see what you think you


might do and report back to me.

17

Thank you.

(A recess was taken.)

18

THE COURT:

So, Mr. Addington and Ms. Garofalo,

19

have you any suggestions to offer concerning expediting this

20

proceeding?

21
22

MR. ADDINGTON:

Yes, your Honor.

I did speak to Ms. Garofalo, as well as Mr. Peek,

23

and I think we will conclude Mr. Thomas's testimony quite

24

quickly and move on to Agent West's testimony, and it seems to

25

be his testimony that is more critical to Ms. Garofalo's

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interests at this time.

2
3

THE COURT:

Ms. Garofalo, is that

your understanding?

4
5

All right.

MS. GAROFALO:

That's correct, your Honor.

Again, there is one outstanding issue with the

inventory list which I think we can address relatively quickly

with respect to the rest of the list.

Mr. Addington has proposed to proceed.

THE COURT:

10
11
12

MR. PEEK:

All right.

We agree with the way

Mr. Peek?

Your Honor, if I may take the lectern

just for a moment.


There is one issue, however, with the Trepp parties.

13

In a pleading file, and I don't have the docket number, and I

14

apologize, but it is a March 19, 2007 pleading filed by

15

Mr. Flynn, which was Mr. Montgomery's opposition to the

16

request for the restraining order, on page 3 of that

17

pleading --

18

THE COURT:

19

MR. PEEK:

20

23
24
25

Yes, your Honor.

I apologize for not

having the docket number.

21
22

Excuse me, sir, March 19, 2007?

THE COURT:

Oh, is it in the search warrant

proceeding?
MR. PEEK:

No, your Honor, it is not, it is in

this proceeding, the 056 proceeding, and it -THE COURT:

Did you say 9 or 19th, sir?

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MR. PEEK:

THE COURT:

anything.

MR. PEEK:
pleading, your Honor.

6
7

16

THE CLERK:

Your Honor, that may be the search

MR. PEEK:

It shouldn't be in the search warrant

because it would have been in the 056 case.


THE COURT:

Anyway, well, I can't find it so go

ahead, sir.

14
15

I may have the date wrong.

warrant case.

12
13

I'll just give you the name of the

TRO.

10
11

Well, I'm not finding

It's Montgomery's opposition to Trepp's motion for

8
9

All right.

I've got --

4
5

March 19th, your Honor.

MR. PEEK:

I'll try to get the docket number,

your Honor.
On page 3 of that motion, and I'll -- the sentence

17

actually begins on line 1, but I'm going to actually read from

18

lines 11 -- actually, 12.

19

"It is an attempt to use the fruit of the

20

poisonous tree from unconstitutional searches

21

initiated by Trepp, a party here.

22

based upon hard drives that were apparently planted

23

by Trepp and the Nevada FBI and U.S. Attorney's

24

Office in an attempt to cover up their egregious

25

misconduct in the search matter as partially set

The motion is

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forth in the court's November 28th order.

involves improper collaboration between Trepp and the

U.S. Attorney's Office after evidence in the search

matter closed and misconduct had been exposed by

Montgomery."

6
7

According to Flynn, this Court lacks subject matter


jurisdiction to decide this motion.

8
9

It

My concern is that this not only appeared in the


pleading, but it appeared in the media that hard drives were

10

planted by Trepp, and I would like a stipulation from

11

Ms. Garofalo that no hard drives were planted by Trepp.

12

THE COURT:

Ms. Garofalo?

13

MS. GAROFALO:

Your Honor, as the Court knows,

14

and Mr. Peek just said, that particular document was filed by

15

Mr. Flynn.

16

As the Court knows, we've been unable to obtain

17

information from Mr. Flynn or documents to corroborate what

18

Mr. Flynn was alleging in pleadings prior to the time we came

19

into the case.

20

I am happy to talk to my client and see if we can

21

arrange a stipulation, but I don't know the basis for the

22

allegation at this point, and that's about all I can represent

23

to the Court now.

24
25

MR. PEEK:

Your Honor, then, in that connection,

if I don't have a stipulation, I would certainly ask

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Mr. Addington to go forward to demonstrate that no hard drives

were planted by Mr. Trepp with the FBI and United States

Attorney's Office as alleged in his pleading in opposition to

the temporary restraining order.

THE COURT:

Right.

I think I've got the wrong

docket on my computer so this is what I'm going to do on that

issue.

appears.

It's in the 0656 case, that pleading, that's where it

And so over the noon hour I'll ask Ms. Garofalo to

10

take a look at that, and it probably is the March 19 filing.

11

Go ahead and look at it and to the extent -- and talk to

12

Mr. Montgomery over the lunch hour.

13

I mean, these -- to me, I know that while it has

14

been the position of the Montgomery parties that you don't

15

have the entire file, the attorney file, the client file, my

16

feeling is, one, you certainly have access to all of the

17

pleadings and the papers that have been filed, but, more

18

important, you have access to Mr. Montgomery who would have

19

been the person -- I mean, I'm just drawing the natural

20

conclusion that that statement would be made based upon

21

discussions that he may have had with his former counsel.

22

don't know that.

23

But let us try to resolve that issue over the noon

24

hour, and I don't know if it can be.

If it can't, we're going

25

to have to address that issue in some fashion.

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1
2

MS. GAROFALO:

And I certainly don't mean to be

evasive, your Honor.

THE COURT:

I know you don't.

MS. GAROFALO:

We just don't know what

Mr. Flynn -- and I don't mean to waive any privilege by making

this statement -- may or may not have told Mr. Montgomery

based on his review of the material he had at the time.

8
9

But what I will say to Mr. Peek and Mr. Trepp is


that what we are essentially stipulating to and what will be

10

established in the record today by Mr. Addington is that what

11

was taken was returned, that there is no disparity, other than

12

the two forensic copies that were made, between the number of

13

hard drives physically taken and physically returned.

14

That may well serve Mr. Peek's purpose establishing

15

that fact, and I really can't offer anything else at this

16

point, your Honor.

17

THE COURT:

All right.

Well, I'm going to allow

18

Ms. Garofalo to investigate this, and I'll take a look over

19

the noon hour at the paper that you've mentioned, and we'll

20

see what needs to be done about that.

21

MR. PEEK:

22

THE COURT:

All right?

Thank you, your Honor.


Thank you, sir.

23

All right.

24

And also, just so you know, I'm not planning on

25

Go ahead and proceed.

staying after 5:00 today.

I didn't mean to suggest we were

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camping here for the evening until this case was -- this

matter was concluded.

understand Mr. Gomez has plans, so let us all be --

4
5

We'll just have to reconvene.

MR. GOMEZ:

Your Honor, I just -- I will be here

for the entire day so that's not --

THE COURT:

I know, sir.

MR. GOMEZ:

If it's necessary.

THE COURT:

I know you know.

MS. GAROFALO:

And I would request, your Honor,

10

if it does have to be continued, if it looks at 4:00 or 4:30

11

as though we're not going to finish, given the flight schedule

12

out tonight, it would be helpful to conclude a little bit

13

before 5:00.

14
15

THE COURT:

20

Well, I

Anyway, go ahead, Mr. Addington.

17

19

We'll do our best.

know you all have incentive.

16

18

Sure.

MR. ADDINGTON:

Thank you, your Honor.

BY MR. ADDINGTON:
Q

Agent Thomas, we've looked at items 1 through 8 of

Exhibit C, correct?

21

Yes, sir.

22

And your testimony, as I understand it, has been that all

23

of the items that you reflect as being returned to

24

Mr. Montgomery, items 1 through 8 on Exhibit C, were the same

25

materials that were seized from Mr. Montgomery, either from

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the storage unit number 140, or from the Buckthorne residence,

correct?

3
4
5
6

That is correct, and with the addition of the items

derived from evidence seized from Mr. Montgomery.


Q

Correct.

Looking now at items -- at the remaining items

on Exhibit C, items 9 through 29.

Yes, sir.

Have you -- were all of these items on Exhibit C, 9

9
10
11
12

through 29, returned to Mr. Montgomery through your efforts?


A

Yes.

I previously reviewed this property return and

corresponding evidence, and everything seized was returned.


Q

And you made an effort to -- or did you make an effort to

13

document serial numbers and labels and other descriptive

14

language to ensure that what was being returned to

15

Mr. Montgomery was items that were previously seized from

16

Mr. Montgomery?

17

That is correct, numbers of CDs or DVDs or many digital

18

tapes, in some cases the names associated with each of the

19

DVDs or CDs, except for when it got to the end when the number

20

of CDs were so large that -- like the number 78 -- yeah, 78,

21

in this case, an item 29 was used as opposed to describing

22

each label, and that was agreed by Eric Pulver.

23
24
25

But even as to those items, they were separately

photographed either in groups or individually, correct?


A

That is correct, yes.

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1
2

And you've examined all of the photographs that Agent

Devore took with respect to this return of property?

I have, sir.

And have you reviewed the photographs in Exhibit F?

Yes, I have.

And have you examined the photographs in Exhibit G?

Yes, I have.

And those are the photographs from the search activity,

correct?

10

Yes, sir.

11

And with respect to items 9 through 29 of Exhibit C, are

12

you satisfied today that all of those items represent and are

13

identical to items that were previously seized from

14

Mr. Montgomery?

15

Yes, sir.

16

You mentioned that Agent Brewer brought these materials

17

from the evidence room to the witness room where this return

18

process took place, correct?

19

Yes, sir.

20

And so there is an evidence room at the FBI facility?

21

Yes, there is.

22

With respect to these specific items that were seized

23

from Mr. Montgomery and then returned to Mr. Montgomery, did

24

you access the evidence control room at any time prior to

25

March 29th, '07, to handle or view these materials?

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1
2
3

I -- previous to the return of these items, I did not --

other than when we seized them, I did not handle the items.
Q

Are you aware of who accessed the evidence control room

at the FBI facility with respect to any of these items during

the time they were in FBI custody?

If anybody were to access the items and physically handle

them, that will be noted on the chain of custody receipt

whatever item was handled.

9
10
11

All right.

So is there a mechanism within the FBI to

identify and document access into the room?


A

Yes.

Access to the room, then anyone who handles the

12

items to view them, that is denoted on the property receipt

13

for -- or chain of custody, actually, for that individual

14

item.

15
16

So for each evidence control number, there is a separate

chain of custody form for that control number?

17

That is correct.

18

After the search in 2006, did you participate in

19
20

processing these materials into the evidence control room?


A

I know I brought some of the items back to the office.

21

don't have a specific recollection as to what items I did, how

22

many items.

23

And in transporting materials from the places from which

24

they were seized to the FBI facility, did any other person

25

have access to those materials other than FBI personnel?

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1
2

Absolutely not, with the exception on the forensic

review, that was Melissa McDonald with ICE.

Melissa McDonald performed the forensic copying process?

That is correct.

And she is a federal law enforcement officer?

Yes, she is.

Another agency?

Yes, and she is a CART agent, which they are the ones who

9
10

are specifically trained in the technical aspects of the


computer.

11

CART, is the acronym C-A-R-T?

12

That is correct.

13

Sorry, Ms. Reporter.

14

MR. ADDINGTON:

15

THE COURT:

16

MR. PEEK:

Nothing further, thank you.

All right.
Your Honor, before Mrs. Garofalo

17

begins, may I just ask a few questions with respect to

18

planting?

19
20
21
22
23
24

THE COURT:

No, not right now.

Ms. Garofalo, go ahead.


MS. GAROFALO:

Just one minute, your Honor.

have located the errant exhibit books.


May I approach the witness, your Honor?
THE COURT:

You may.

25

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We

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93

1
2

CROSS-EXAMINATION
BY MS. GAROFALO:

Good morning, Agent Thomas.

Good morning.

I take it the FBI has written guidelines and procedures

in how to handle evidence seized pursuant to search warrants;

is that correct?

That would be true, yes.

And where would I find those procedures were I looking

10
11
12
13

for them?
A

I believe they would be in our manual for operating

procedure.
Q

Okay.

And prior to the execution of search warrants at

14

the Montgomery home and storage unit in March 2006, had you

15

reviewed those procedures and guidelines?

16

I had reviewed portions of the manual.

I have not read

17

it cover to cover.

18

in the academy and trained once we get to the field.

19

Okay.

We are trained in how to handle evidence

Generally speaking, when evidence is seized it is

20

subsequently checked into the evidence control room; is that

21

correct?

22

Evidence must be stored in an evidence room.

23

And I would find that in the FBI manual were I to look;

24
25

is that correct?
A

I would presume so, yes.

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And does the FBI manual discuss the timeliness of

evidence having been seized being checked into the evidence

control room?

Once again, I don't know word for word or where it's

stated in there.

must be placed into the evidence room or checked in, yes.

I know there's a time line for when evidence

Now, you were present when the search warrant was

executed at Mr. Montgomery's storage units on March 3rd, 2006;

is that correct?

10

That is correct.

11

Okay.

12

And you participated in the search of these

storage units; is that correct?

13

Yes, the storage units and the residence.

14

Okay.

15
16
17
18
19

And, if you recall, how many storage units were

searched?
A

There was a few.

I would have to go back and look

specifically to count how many.


Q

I don't recall.

Do you recall if evidence was located and taken from any

storage unit?

20

Yes, there were.

21

More than one storage unit?

22

Yes.

23

You found evidence in more than one storage unit?

24

I believe so.

25

If I'm -- once again, without reviewing --

looking at the individual photos of each unit to recall --

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refresh my memory of what was in each unit -- I believe there

was more than one unit, but I know we seized items from the

units.

MS. GAROFALO:

I'm going to mark as Plaintiff's

Exhibit 42 what purports to be the inventory taken at the time

of the seizure at Mr. Montgomery's storage units.

(Plaintiff's Exhibit 42 marked for


identification.)
MS. GAROFALO: May I approach the witness, your

8
9

Honor?

10
11

THE COURT:

You may.

BY MS. GAROFALO:

12

Have you seen this document before today, Agent Thomas?

13

Yes, at the time -- I remember them being filled out at

14
15

the time of the search.


Q

And is this the --

16
17

MR. ADDINGTON:
of what she's referring to.

18
19
20

Your Honor, I don't have a copy

Thank you.
BY MS. GAROFALO:
Q

And is this, to the best of your recollection, the

21

inventory that was prepared at the time of the actual search

22

at Mr. Montgomery's storage units?

23
24
25

Yes.

To my recollection, these were prepared and then a

copy of which was left at the storage unit.


Q

Okay.

Did you prepare these inventories?

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No, I did not.

Do you know who did?

I -- it appears to be Agent West's signature on the

bottom, and I don't know if he prepared them or if someone

else did.

6
7

Okay.

Now, the first page and sort of a quarter of the

way down it says, Name, unit number 136.

Do you see that?

Yes, ma'am.

And the units were located at 888 -- I can't really read

10

my copy, but it looks like Maestro Drive.

11

location of the storage units?

12

Yes, if that's what the property receipt says, I don't

13

know specifically where it's at.

14

Diamond.

15
16

Is that the

Okay.

I know it's near Double

And does the first page that relates to unit

number 136 reflect that any items were seized from that unit?

17

It does not reflect any items seized, no.

18

Okay.

I would like you to then look at the second page,

19

also on the line that says, Name, unit 140, and this appears

20

to relate to unit 140; is that correct?

21

That is correct.

22

And that was a separate storage unit held by

23

Mr. Montgomery?

24

Yes.

25

Okay.

All the units were separate units.


And there were indeed items seized from unit

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number 140; is that correct?

As per this items seized log, yes.

Okay.

And, again, this is not your handwriting; is that

correct?

That is correct.

And this appears to be prepared by Agent West, correct?

It looks like his signature at the bottom.

At the time the warrant was executed at the storage

9
10
11

units, did you check these inventories against the items that
were actually seized?
A

Are you -- I want to make sure I understand your

12

question.

You're talking did I compare the items seized to

13

this inventory list at the time of the seizure?

14

Correct.

15

No, I did not.

I recall seeing some items like the hard

16

drives and so forth when we were doing the search and seizing,

17

but I did not compare everything.

18

Okay.

If you go to the next page, this one appears to

19

relate to unit number 141 also at the same address, one of

20

Mr. Montgomery's storage units.

Do you see that page?

21

Yes, ma'am.

22

And were any items located and seized from that unit?

23

No, ma'am.

24

The next page relates to unit 142.

25

Can I have you take a

look at that page.

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I am.

Were any items seized or identified in unit 142?

No, ma'am.

And after reviewing this, it helped refresh

my recollection of the incident.

had household items nonrelevant to the search warrant.

Okay.

Most of the storage units

Just because we're going through the exercise,

there's one more page, 143, the final page, nothing was seized

from that unit; is that correct?

No, ma'am.

10

Okay.

If I can ask you to go back to page 2, the one

11

that relates to unit 140, and look down at item number 11.

12

you see that entry?

Do

13

Yes, ma'am.

14

Okay.

15

The entry 11 states one box containing 78 CDs, looks like

And can you read that entry?

16

the number 132 3.5 floppy disks, and it appears something --

17

looks like the number 39 scratched out.

18
19

Do you know whether floppy disks were actually seized

from unit 142 on March 6, 2006?

20

Were in the storage unit?

21

You don't know or they were not seized?

22

I -- there was a large volume of CDs or -- and other

23

computer material.

No.

I don't recall.

24

Do you know what a floppy disk is?

25

I know what a floppy disk is.

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1
2
3
4
5

As you sit here today, you don't recall seeing any floppy

disks that were seized; is that correct?


A

I don't specifically recall floppy disks.

I know I saw

lots of computer media.


Q

I would like you to look back in the government's exhibit

book at Exhibit C -- wait.

is the return for the search warrant.

Yes.

Okay.

Actually, Exhibit B, and Exhibit B


Do you see Exhibit B?

And Exhibit B appears to be a similar version of

10

what we just looked at as Plaintiff's Exhibit 42.

11

to make a minute and look at those, Agent Thompson?

12

MR. PEEK:

13

MS. GAROFALO:

14

THE WITNESS:

15

18
19

Thomas.
Thomas.
It's Thomas, ma'am, just for the

record.

16
17

Do you want

Which exhibit am I looking at?


BY MS. GAROFALO:
Q

Okay.

Look at the Exhibit B in the small notebook that

Mr. Addington gave you.

20

Yes, I'm looking at that, ma'am.

21

Okay.

And comparing that to Exhibit 42, the second page,

22

it appears to be a list of items taken from unit 142, does it

23

not?

24

MR. PEEK:

Unit 140.

25

MS. GAROFALO:

140.

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THE WITNESS:

I'm at Exhibit B, but I'm not

following you where I'm to be looking for the second thing

you're referring to.

BY MS. GAROFALO:

Okay.

Exhibit B is the return that reflects the items

purportedly taken from storage unit number 140; is that

correct?

8
9

What I have in front of me is the return to the court for

items seized.

10

Right.

11

March 3rd, 2006.

12

Correct.

13

Okay.

14

And those items should correlate with the inventory list

15

of items actually seized, the list that was created at the

16

time of the seizure; is that correct?

17
18

It should roughly correlate.

It may be worded

differently or something.

19

Do you know who actually prepared Exhibit B?

20

I see what appears to be Mike West's -- Special Agent

21

West's signature on the return to the court.

22

I don't -- I would -- I could guess that he prepared

23

it, but I don't have any personal knowledge.

24

him sitting there doing it.

25

Now, I'd like you to look at Exhibit B.

I don't recall

Go down to item

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number 11.

Do you see that?

Yes, ma'am.

And can you read that, please.

It says one box containing 78 compact disks.

And to that extent, it correlates to item number 11 on

the document we've marked as Exhibit 42; is that correct?

That is correct.

Exhibit 42 in item 11 also reflects that floppy disks, a

good number of floppy disks had been seized.

Do you see that?

10

The same -- you're confusing me when you say Exhibit No.

11

42.

That's what's -- I see on line number 11 it says the 3.5

12

floppy disks, 132, yes.

13

Okay.

And do you see the floppy disks that are reflected

14

on Exhibit 42, the inventory taken at the time of the seizure

15

at the storage unit number 40 [sic], reflected anywhere on the

16

return list which is Exhibit B?

17
18

No, I do not.

The only thing I do see is -- looks like

the number 39 Xed out and initials RW next to it.

19

And I do recall sometime at the time we were seizing

20

things and Special Agent West decided that it wasn't relevant

21

or we could just leave it at the storage unit.

22

Do you specifically remember Agent West determining that

23

floppy disks that had been seized and entered onto the search

24

inventory were not relevant and were left?

25

I don't recall what specific items.

He was the case

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agent, and it was his call as to -- final decision as to which

items were to be seized and which items were not to be seized.

Agent Thomas, as you sit here today, do you recall seeing

floppy disks at the storage unit the night the search warrants

were executed?

I have no specific recollection.

You have no specific recollection of seeing floppy disks

8
9

at all?
A

No.

I remember seeing lots of computer media.

10

can't -- you know, floppy disks would not have made an

11

impression on me for me to remember it.

12

Now, you were present, as you testified at some length,

13

at the return of the items seized to Mr. Montgomery; is that

14

correct?

15

That is correct.

16

Do you recall floppy disks being returned to

17

Mr. Montgomery?

18

Just the one in the CPU, in the tower.

19

Do you recall 33 -- 32 floppy disks being returned?

20

I don't recall.

21

Now, if floppy disks had been returned, they would have

22

appeared on the inventory reflecting items returned, which is

23

Exhibit C in the small notebook given to you by Mr. Addington;

24

is that correct?

25

What I can state is whatever was in our evidence room was

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returned to Mr. Montgomery and Mr. Pulver at the time and

described, whether it was a CD or floppy, on the property

return.

Which would mean that if it's not on the property return

list, it was not in your inventory room at the time; is that

correct?

7
8
9

It was not in the evidence room.

We had no -- whatever

is listed on the evidence sheet we returned.


Q

Is it fair to say that if the floppy disks had been

10

returned, they would have been entered onto the receipt for

11

returned items that you prepared at the time the items were

12

returned to Mr. Montgomery?

13

I would presume that I would have noted that there was --

14

the number of floppies, if there were floppies being returned,

15

yes, and stating that they're 3.5-inch floppies, and there

16

would have been photos of said floppies.

17

And I would just ask you to take a moment and take

18

another look at the inventory list, the return list which is

19

Exhibit C, to see if you see any floppy disks, other than the

20

single floppy disk you described, that were returned to

21

Mr. Montgomery.

22

I'm not seeing any.

23

Now, after the items were taken from storage unit number

24
25

140 -THE COURT:

Excuse me.

It's 11:30, and I would

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like to go ahead and recess.

o'clock.

Thank you.
And, Mr. Peek, please get that docket number, sir.

MR. PEEK:

THE COURT:

We will begin promptly at one

I will, your Honor.


Thank you.

(The noon recess was taken.)

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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105

RENO, NEVADA, FRIDAY, SEPTEMBER 5, 2008, 1:00 P.M.

---o0o---

3
4

THE COURT:

Please be seated, everyone.

THE CLERK:

And, your Honor, for the record,

Trisha Darby on behalf of Ategio and Michael Sandoval is

present.

8
9
10
11
12

THE COURT:

Thank you.

Mr. Sunshine, you wish to put something on the


record, sir.
MR. SUNSHINE:

Yes, your Honor.

Speaking off the record with Mr. Peek and your court

13

clerk, we would like to request a settlement conference with

14

your Honor at the earliest possible date.

15

there's been -- not all the parties want to participate.

16

THE COURT:

17

MR. SUNSHINE:

I understand

Right.
For the record, Mr. Peek and I

18

wish to go forward whether or not the others do or don't, and

19

we would like to know whether your Honor will entertain it.

20

THE COURT:

All right.

Well, I, of course,

21

received Mr. Peek's report concerning who is interested, and

22

obviously that would lead me to believe Atigeo and

23

Mr. Sandoval are not.

24

MR. SUNSHINE:

25

THE COURT:

That's correct.

Just take -- counting heads, and my

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initial reaction was, when I read it -- and I understand

everyone's positions, and that's fine with me, the concerns

that were expressed by Atigeo and Mr. Sandoval, and so there's

certainly no prejudice to them.

And, unfortunately, Ms. Darby I know is here on

behalf of Ms. Robb Peck, and my suspicion is she would not be

able to speak to these issues because she probably isn't

familiar with them so I'm not going to put her in that

position.

10

Would that be a fair statement, Ms. Darby?

11

MS. DARBY:

Yes, your Honor, thank you.

12

THE COURT:

All right.

So I guess my question

13

is about this, you know, I'm always happy to have a settlement

14

conference, that's not an issue.

15

My concern is that how -- how you see that playing

16

out with these other parties, and why that would be a good

17

idea.

18
19

So you want to tell me why it would be a good idea.


MR. SUNSHINE:

Absolutely, your Honor.

Certainly from our perspective, without -- no

20

disrespect to those parties, we don't have a claim against

21

them so for our purposes a settlement with Mr. Peek's client

22

is really all we're here to do.

23

Further, it's my belief that if we were fortunate

24

enough to actually resolve our dispute, that eventually and

25

perhaps even quickly would end up resolving the entire case.

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I can't speak to that necessarily, but I certainly believe

that the dispute between our clients is the dog wagging the

tail.

THE COURT:

MR. PEEK:

All right.
And, your Honor, I would concur in

that, and I think the Court well knows from its own experience

as a lawyer as well as a magistrate judge that you have

multiple parties and oftentimes not all of those parties will

settle and some will, and the case moves on or it doesn't move

10

on.

11

And so that's really what we're saying is that we

12

think -- you know, this is a case that has been filed since

13

January of 2006 with the principal focus between the two of

14

us, as being eTreppid and the Montgomery parties, and though

15

we did bring in Atigeo and did bring in Mr. Sandoval, it

16

was -- the focus is certainly there, but the main focus is on

17

the source code, and the main focus is on the actions of

18

Mr. Montgomery and Ms. Blixeth.

19

So we think that it would be well -- we would all be

20

well served if the Court would conduct that mediation with us.

21
22

MR. SUNSHINE:

I would like to say one further

thing, your Honor.

23

The timing happens to be quite good for this for a

24

host of reasons, including but not limited to the fact that,

25

as your Honor knows, we've made significant progress in

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producing information to the other side, and even for other

reasons the timing is right now for us to try to resolve this

case.

THE COURT:

Ms. Clerk, what dates did I say?

THE CLERK:

Your Honor, we were looking at

September 15th and September 16th.

MR. PEEK:

And we were also possibly looking at

the morning of the 17th because I understood that the Court is

maybe gone the afternoon of the 17th.

10

THE COURT:

11

Ms. Clerk, may I see my calendar.

So rather than a case management conference on the

12

16th, you're looking at the 15th, 16th -- what days?

13

sorry, say again.

14

MR. PEEK:

Monday, Tuesday, Wednesday, the 15th,

15

16th, and the morning of the 17th.

16

Honor, for the status conference.

17

THE COURT:

I'm

We're here anyway, your

All right.

Mr. Addington and

18

Mr. Gomez, do either of you -- I'm looking more to Mr. Gomez,

19

obviously.

20

Tell me, if the Court goes ahead with the settlement

21

conference with these two parties, would the government wish

22

to be present for the settlement conference?

23

MR. GOMEZ:

Your Honor, the concern of the

24

government is any information that may be provided

25

inadvertently or otherwise to the Court, or that there is some

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information that would involve the U.S. protective order so

that is really what our interest is.

I -- I think there's another request from the

parties concerning the government's involvement, but I would

rather not go into that at this point.

likely, given the request, that we would be present.

7
8

THE COURT:

All right.

I can just say it's

That's what I'm

interested in knowing is that you would like to be present.

MR. GOMEZ:

Yes.

10

THE COURT:

All right.

Well, I will go ahead

11

and set a settlement conference in this matter for Monday,

12

Tuesday, and I don't know when I leave, but we'll certainly,

13

if we need to, go through noon on Wednesday, the 17th.

14

out sometime that afternoon, I think it's a little bit later

15

so I can be flexible.

16

I fly

So as I understand it, the Montgomery parties, and

17

that includes Edra Blixeth, Brenda Montgomery is a party,

18

Dennis Montgomery, and I don't know who --

19

MR. PEEK:

20

THE COURT:

OpSpring, your Honor, is the other -I was getting to OpSpring.

I don't

21

know who is the client representative for OpSpring, whether

22

it's Edra Blixeth or some other person, I have no idea, so

23

those persons will be present, and Mr. Trepp.

24
25

Anyone else from eTreppid, Mr. Peek?


MR. PEEK:

I don't think so.

We might have Doug

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Fry here, but I really don't think so, your Honor, his

presence is not necessary, he may just want to join us.

THE COURT:

MR. PEEK:

All right.
Mr. Trepp says no, it will just be

the two of us.

MR. SUNSHINE:

Your Honor, Ms. Blixeth herself

may not -- she's -- she may not be physically available on the

15th.

I can't --

THE COURT:

Oh, well, she has to be.

I mean, if

10

we're doing it on the 15th -- if she can't be here for

11

whatever reasons, that's fine, we aren't doing the settlement

12

conference without her.

13

So that means what I'm telling you is I will reserve

14

the dates of Monday, the 15th, Tuesday, the 16th, and the

15

morning of the 17th.

16

everyone's in or everyone's out.

17

aren't going forward.

18
19

Everyone is present or we

So I understand if that's not an available date,


then you have one and a half days of settlement conference.

20
21

You are to -- if Ms. Blixeth --

MR. SUNSHINE:

I appreciate that, your Honor,

thank you.

22

THE COURT:

All right.

And so what I would ask

23

you to do, when can you know about Ms. Blixeth's availability

24

on the 15th?

25

MR. SUNSHINE:

By Monday.

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THE COURT:

All right.

So would you please --

then I'll just put by separate minute order, Ms. Clerk, we'll

do a separate order concerning the settlement conference

that's scheduled for eTreppid and Montgomery parties, and note

that counsel for Montgomery parties, including Ms. Blixeth,

will file a notice with the court by Monday, September 8,

2008, to advise of Mrs. Blixeth's availability on the 15th,

otherwise I will schedule something else so I can fill in my

calendar.

10
11
12
13
14

MR. SUNSHINE:

We will make every effort to make

sure that she can attend, your Honor.


THE COURT:

All right.

Ms. Clerk, just send out

the standard settlement conference order.


Counsel, it's pretty standard.

You'll just need to

15

supply a confidential settlement conference statement to me on

16

a date noted in that order, and it's, I think, a pretty

17

standard settlement conference order.

18
19
20

All right.

Anything further with respect to that

issue, Mr. Gomez?


MR. GOMEZ:

I just want to state that I will

21

need to confer with my clients to confirm their availability

22

so I -- while counsel may be able to be present, if the

23

parties want other individuals present, it may -- I don't have

24

that information available to me.

25

THE COURT:

All right.

So, Mr. Gomez, when

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might you -- it sounds like what you need to do then, sir, is

confer with counsel for parties attending the settlement

conference to ascertain who they want present besides you --

MR. GOMEZ:

Yes.

THE COURT:

-- and Ms. Wells, if both of you are

coming, and if they do, to determine what persons would be

available, and can you propose a date by which you can let the

Court know.

MR. GOMEZ:

I would think by Tuesday.

10

THE COURT:

All right.

So, Ms. Clerk, the

11

minute order on this particular issue will further reflect

12

that Mr. Gomez on behalf of the United States will advise by

13

September -- close of business September 9, 2008, the

14

availability of representatives from the United States to the

15

extent counsel for the parties and the litigation wish them to

16

be present.

17

So are we -- sounds like we're set on the settlement

18

conference.

So I'll just ask, and by your silence it will be

19

your acquiescence, that there's nothing further.

20

Anything further on the settlement conference?

21

Very good.

22

All right.

23

The next issue, just over the noon hour I did review

The next issue -- thank you, Ms. Clerk.

24

docket 126.

It's sealed, and, frankly, I can't recall why

25

it's sealed, and I haven't had time to look through it

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1
2

thoroughly.
But what I'm going to do is defer -- Mr. Peek, do

you recall or do counsel for the Montgomery parties -- so many

things have been sealed, unsealed, resealed, et cetera, but it

indicates on the court docket this document was sealed, and

I'm not sure if in looking at this -- I mean, I can tell you

that the document is the Montgomery parties' opposition to

eTreppid's motion for a temporary restraining order, and I

don't recall the reason why it was sealed.

10
11

MR. PEEK:

because I was provided a copy of it.

12
13
14

And I don't either, your Honor,

THE COURT:

It was served on me.

Right, you'll get a copy, but when

it's sealed, it just means no one else gets it.


Ms. Garofalo, any idea?

15

MS. GAROFALO:

16

THE COURT:

No clue, your Honor.

I assume -- well, I don't know, I

17

think I would be more comfortable for Mr. Gomez to perhaps

18

take a look at that.

19
20
21
22
23

MR. GOMEZ:

That's what I was going to request,

THE COURT:

Yes.

your Honor.

give him my copy.

Why don't -- Ms. Clerk, here,

I can always get another one.

And, sir, you can take a look at that and then at

24

some point advise us whether you have any concerns, and then

25

so what I'm going to do is defer consideration of that

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particular issue until Mr. Gomez has had an opportunity to

review that document.

order today so we can take up that matter, but, if not,

that's -- we'll just have to wait and see.

He may well be able to do that in short

MR. PEEK:

Will I be permitted to ask any

questions, your Honor, however, of Special Agent Thomas or

Special Agent West?

THE COURT:

MR. PEEK:

10

respect to planting.

11
12

Yes, I'll allow you -- I just don't

want you to refer to that docket number.


MR. PEEK:

I won't refer to the docket then,

I'll ask just sort of generically.

15
16

It will just be very brief with

That's the only issue.

THE COURT:

13
14

Well --

THE COURT:

Do you have any objection to that,

Ms. Garofalo?

17

MS. GAROFALO:

18

THE COURT:

19

All right.

MS. GAROFALO:

21

THE COURT:

22

We are.

Thank you very much.

Ms. Garofalo, you may continue.

23

25

So are we ready to

proceed?

20

24

I don't, your Honor.

CROSS-EXAMINATION RESUMED
BY MS. GAROFALO:
Q

I believe you testified this morning that you were not

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the one who prepared the inventory list at the time of the

search.

that correct?

That's the document we've marked as Exhibit 42.

Is

Correct, ma'am.

You have, however, in your experience as an agent for the

FBI prepared such inventory lists, correct?

Yes, I have.

Okay.

9
10

Now, do you know how many agents were at the

search of Mr. Montgomery's home?


A

If I thought about it, I would have to give you an

11

approximate number, but I -- it's been some time, and I may

12

miss a person or two.

13
14
15

What's the approximate number to the best of your

recollection?
A

Give me a few minutes here.

16
17

Going off my best recollection, I'm counting seven


agents, but I may be missing people.

18

I don't believe everybody from our office was there.

19

We had support personnel there that are our evidence team for

20

photographing and so forth.

21

When we located the prescription medication, I know

22

at least one DEA agent and a task force member of the DEA came

23

to look at the prescription drugs.

24
25

Okay.

So I understand you correctly, you can recall

approximately seven agents involved with the search plus the

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peripheral people, including the DEA agent and evidence people

from your office; is that correct?

3
4

Correct.

That's an approximate number off my -- just

without reviewing any documents.

Do you remember the names of the agents as you sit here?

I -- I -- I can, yes.

Can you just rattle off the names of those agents you

8
9

recall.
A

Special Agent John Piser, Special Agent Edward Duffer,

10

Special Agent Jacquelin Bloomingdale, Special Agent Oswald

11

Tinsley, Special Agent West.

12

said him or not.

13

think Special Agent Anna Brewer was there, but I can't recall

14

specifically, she may not have been.

15
16

I can't recall if I just

Special Agent Lovdahl, Glen Lovdahl.

Anyone else I would just be guessing at.


Q

Now, was it the same cast of agents that also attended

17

the execution of the warrants at the storage facility on

18

March 3rd?

19

Generally speaking, but not specifically.

I want to say

20

one or two people that were at one were not at the other.

21

just can't remember who it was.

22
23

There was also Special Agent Marcus Knutson as well.


Q

Now, of the cast of participants that you just

24

identified, categorywise, who actually searched for the

25

evidence enumerated in the search warrant?

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All the agents present at either search site would have

participated in the search for the evidence or logging the

evidence once it's recovered.

Okay.

No, ma'am.

There was one log kept by Agent West; is that correct?

Right, that would be the property receipt as we do it.

8
9

Now, did each agent keep their own log?

We do the photographs upon entry of wherever we go,


and those photographs are logged, and, you know, the -- we

10

split into search teams, then you have the teams that are, you

11

know, doing the photography and a lot of said things.

12

Just as an example, let's say Agent Piser found a piece

13

of evidence, a hard drive responsive to the search warrant,

14

how would that procedure work?

15

of evidence end up on the receipt log?

16

How would that -- that piece

Well, generally speaking, once an item is located, the

17

item is then photographed and also the photograph log taken,

18

and then the item is eventually put into envelopes or boxes,

19

so forth, and at the conclusion of the search or -- it kind of

20

varies, then it's noted on the property receipt when it's

21

actually noted.

22

It can be done simultaneously, it can be done after

23

everything is kind of lined up, and right before we are

24

leaving, we note everything that we're taking.

25

Do you know how it was done in this case, how Agent West

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2

received the information that ended up on the receipt logs?


A

I -- again, I remember, generally speaking, the search,

but as to how these items were logged at the residence or

the -- or at the search of the storage units, I can't

specifically recall when these property receipts were

prepared, whether it was during the process or after the fact.

Now, has it been your experience in preparing logs when

you've done so that occasionally items are omitted from the

logs?

10

I'm not sure what you mean by omitted.

11

Don't make it onto the log, items seized.

12

Items are placed on the logs generally when we seize them

13

at where we're doing the search.

14

generalistic description of items taken.

15

That's more of a

Where in this case, you know, in this case, if we

16

were seizing a CPU, a tower, and the hard drive is located

17

internally in the tower, we just note the tower, we're not

18

going to notate every component that are contained.

19

Our evidence, once we get to the office and we're

20

able to go through it, is more detailed once we get back to

21

the office.

22

Would it be fair to say that the scene at

23

Mr. Montgomery's home on the day the search warrant was

24

executed was fairly frantic, there were a lot of people

25

looking for evidence, a lot of people doing various jobs at

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2
3
4
5
6
7

the site; is that correct?


A

I wouldn't use the word frantic.

We controlled the site

and we were doing a methodical search of the residence.


Q

Is it possible, as you sit here today, that items were

taken that didn't make it onto the receipt log?


A

No, I -- items would be generally described, but if items

were taken, they wouldn't be omitted from the search log.

How can you be sure somebody didn't make an error?

I guess you can't be absolutely certain, but that's

10

not -- I've never seen that happen.

11

You've never seen that happen?

12

Items taken that are not notated?

13

On the search log.

14

On the search log.

There could be a mistake on the

15

search log, then I would compare it to whatever the return to

16

the court.

17

notated on the return to the Court then.

18

If there's -- it could happen, but it would be

If it didn't make it onto the log prepared on the scene,

19

how would it end up entered on the return filed with the

20

court?

21

Once again, once we get back to the office, we enter the

22

description of the items seized into our system.

23

of a specific description of said items taken than the

24

generalized property receipt left at the scene.

25

Okay.

That's more

Let's talk for a minute about the search -- in

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that vein about the search of the storage locker number 140.

That search was conducted on March 3rd, was it not?

Yes, ma'am.

And what happened to those items after they were taken

5
6

from the storage locker?


A

After they're taken from the storage locker, they were

taken back to our office to be logged, categorized and placed

into our evidence.

And when was that done?

10

I -- basically shortly thereafter.

11

it was very cold.

12

was.

13

I remember that night

I can't remember what day of the week that

The items would have been shortly sometime after it

14

was taken to our secured location or secured office space, and

15

the paperwork would have been done describing the evidence and

16

given to our evidence techs to be placed into evidence.

17

Do you specifically remember what happened to the items

18

seized from the storage locker on the evening they were

19

seized?

20

Yeah, they were taken back to our office.

21

Were they taken to a particular office?

22

Yes, the Reno FBI office located at Kietzke Lane.

23

In a particular office within that building?

24

Yes, our office.

25

Does the FBI maintain more than one office in a suite of

Our office, the FBI's office space.

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offices?

No, it's one suite, Suite 200.

Now, I'd ask you -- in the big book which contains

plaintiff's exhibits, I would ask you to turn to Exhibit 10.

Yes, ma'am.

Okay.

7
8
9

And have you seen this document before today?

It's a three-page document.


A

Yes.

I don't have specific recollection of this

particular document, but I've seen this with my signature.

10

I've seen it, and I've seen various documents similar to it in

11

other cases as well.

12

Okay.

And what is this document?

13

This is our evidence log.

This is the one that -- second

14

page where it says draft, that's where we do the description

15

of the item seized.

16

The evidence techs then input into our computer

17

which generate the first page here, the FD192, this is the

18

typed version of the draft version of the FD192, and the third

19

page is our chain of custody FD192 which is -- that documents

20

who has handled the evidence.

21
22

25

Looking at the first page of the FD192, there is a

section that says Date property acquired, 3/3/2006.

23
24

Okay.

Is that, to the best of your recollection, the date


the property was acquired from storage locker number 140?
A

Yes, ma'am.

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Okay.

And if you look a little further down, actually

the last entry, there's a column that says "Date Entered."

you see that?

Do

Yes.

And what is the date entered?

That shows as March 7th, 2006.

Okay.

I'm not sure if that's the date it was entered into our

9
10
11
12

What does that signify?

computer system or if that was the date that it was entered


into our physical evidence space.
Q

I'd ask you to turn to the third page which at the top

says Chain of Custody FD192.

Do you see that?

13

Yes.

14

Does that in any way refresh your recollection as to when

15
16
17
18

it might have been entered into the evidence control room?


A

That would indicate it was placed into storage on

March 7th, 2006.


Q

Okay.

Can you explain to me why the gap between the date

19

of the seizure, which was March 3rd, and the date it was

20

entered or put into the evidence control room on March 7th?

21

I can't speak specifically to the time frame on this.

22

could talk generally why, but I can't talk specifically on

23

this.

24
25

I don't have any knowledge of it.


Do you know where the evidence seized from the storage

locker was maintained between March 3rd and March 7th?

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2
3

Outside, just generally speaking, in our office space.

can't say physically where it was located at, no.


Q

Agent Thomas, I'm not asking you generally.

Do you know where the evidence taken from

Mr. Montgomery's storage unit number 140 was held or

maintained for the four-day period between the time it was

seized and the time it was finally stored in the evidence

control room?

Yes, 5310 Kietzke Lane, Suite 200.

10

And who had control of that evidence?

11

I would assume it was by Mike West's desk area.

12
13

I don't

recall.
Q

Okay.

So you just assume that the evidence seized from

14

the storage locker pursuant to the search warrant was sitting

15

around Mike West's desk area for four days.

16

testimony?

17

I don't specifically recall.

Is that your

I've done a lot of search

18

warrants, and do I recall where each item is sitting in the

19

office, no.

20
21

Okay.

And Mr. West's desk, is it out sort of in an open

area with other desks?

22

It is a squad bay where everyone sits.

23

Okay.

24
25

Is his desk area locked or cordoned off, in some

way secured?
A

No.

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And do you recall seeing any of the evidence sitting on

Mr. West's desk during this four-day period?

I don't have any specific memory of it, no.

Did you ever discuss with Agent West why this evidence

5
6

had not been checked into the evidence control room?


A

No.

Typically it takes a few days, if there is a large

volume in the office, for it to be described and then given to

the evidence techs and then placed into our evidence room.

9
10
11

Other things had to be done, like the return to the


Court, the search 302.
Q

There's other things to be done.

I would ask you to look, as an example, to Exhibit 8

12

which is one of the FD192 forms prepared in connection with

13

the items taken from Mr. Montgomery's home.

14

Okay.

15

Okay.

16

And there Date Property Acquired, do you see that

Agent Thomas?

17

Yes, March 1st.

18

Okay.

And then, if you look to the column on the right

19

at the bottom of the printed section, it says date entered,

20

what is that?

21

That would be March 2nd.

22

So they managed to get the evidence seized on March 1st

23

into the storage room by March 2nd; is that correct?

24

According to this, yes.

25

And isn't that more typical than having a four-day gap

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between the time of the seizure and the time that evidence is

actually checked into the storage -- into the evidence control

room?

No.

So in your experience, evidence seized pursuant to

warrants typically sits around for four or five days before

anybody gets it checked in?

8
9

No.

What I'm just saying is there's multiple things to

be done after a search.

10

The evidence is maintained in our secured space, and

11

we comply with what we have to do, which is ten days, to get

12

it within evidence by our operating procedure.

13

Why this one took one day and the storage unit took

14

longer, I can't recall if that was a Friday and there was the

15

weekend which accounted for a couple of days, I don't have any

16

specific recollection.

17

I can tell you that evidence is placed within our

18

evidence, what we have to do, by ten days, and there's

19

multiple reasons why it can take extra time to do it.

20
21
22

And is it your testimony that during that period of time

the evidence control logs were prepared?


A

During that time, yes, because in order for it to be

23

placed into evidence, they take the draft FD192, give it to

24

our evidence control technician person, and they type this

25

out, the first page, the typed, computer-generated FD192, and

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then it's placed into evidence.


Q

Okay.

So at some point between the time it's seized and

four days later that it gets into the evidence room, somebody

took the original inventory taken at the scene, recopied it,

reformulated it and produced the document that was submitted

to the Court in connection with the return on the search

warrants?

8
9

Typically, the case agent, in this -- after doing the

search, that's one of the priorities is getting the return to

10

the Court, and that's -- we try to do that within the next day

11

or the day after.

12

is getting the return done to the court.

13

That's one of the hot -- important things

As you sit here today, do you know whether Agent West

14

simply copied the original list that was prepared during the

15

search onto the list submitted with the return, or whether he

16

compared the items actually seized to the list and then

17

prepared the return?

18

I have no personal knowledge.

19

And it's not your experience that anything has ever been

20

missed on an inventory list prepared at the time of the

21

search; is that your testimony?

22

As we take it, no.

Things are described generally

23

speaking.

They're not specific.

You know, we don't put -- a

24

lot of times, if there's multiple hard drives or -- it's a

25

generalized thing we do when we take the items.

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The more specific description of items seized occurs

after we get back to the office.

seizing 72 CD ROMs, it's going to be 72 CD ROMs or CDs, it's

not going to be a description of each title that we're leaving

at the scene.

Okay.

For example, if we were

If you look at Exhibit 42 and you look back at

Exhibit B, which is the inventory submitted with the return in

connection with the items taken from storage locker 140, is

there more specificity in your view in Exhibit B than in

10
11
12

Exhibit 42?
A

You refer to Exhibit -- in Exhibit B, you're referring to

the return to the Court?

13

Correct.

14

The two look fairly similar, maybe a couple of words

15
16

different, but they look fairly similar.


Q

In fact, there is no more specificity in the list that

17

was submitted to the Court.

18

specificity, isn't there?

There is actually less

19

I think they're fairly similar.

20

You think it took four days to copy the list?

21

Do I think it took four days to prepare this list?

22

Is

that what the question is?

23

That's the question.

24

It would not take four days to write this down, but I

25

can't say what was occurring during that time.

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We can go through each of the FD192 forms for the items

taken from the storage locker, but in order to save time,

would it be consistent with your recollection that they were

all submitted to the evidence control room at the same time on

March 7th?

6
7

I don't know.

Without reviewing each one, I wouldn't be

able to tell you.

Okay.

The only thing I can say is I know the items were placed

10

in evidence within the ten days that we're required to do it

11

by our agency.

12

Okay.

13

Fair enough.
Just briefly, in the large book, if you would just

14

take a quick look at Exhibits -- first, 11 through 19 and see

15

if all of those items were, in fact, delivered to the storage

16

room, the evidence control room, on March 7th.

17

that for me.

18
19
20
21

Just confirm

That's correct, items -- Exhibits 11 through Exhibit 19

were all entered on March 7th, 2006.


Q

Okay.

And those are all FD192 forms for items taken from

the storage unit number 140, correct?

22

Correct.

23

Okay.

And if you would just do the same thing for

24

Exhibits 23 through 30 and confirm that those items taken from

25

storage unit number 140 were also not checked into the

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evidence control room until March 7th, 2006.

Okay.

Twenty-three through 30.

Okay.

Twenty-three through what?

Twenty-three through 27, yes.

oh, here it is.

And Exhibit 28 --

Yes, 28.

Actually, Exhibit 30 is a different day, and it's --

it looks like one of the forensically-copied hard drives.

23 through 29, yes.

Okay.

So

And the forensically-copied hard drives actually

10

made it to the evidence control room on March 9th; is that

11

correct?

12

That is correct.

13

Two days later.

14
15

If you would turn to the notebook provided by


Mr. Addington that has Exhibit G.

16

Yes, ma'am.

17

And I would like you to look at the photograph numbered

18

48.

19

Yes, ma'am.

20

Were you present when that photograph was taken?

21

I know I was present when those items were located.

22

can't recall if I was specifically there for the photo.

23

think I was.

I
I

I remember witnessing the money count.

24

Okay.

And this is at Mr. Montgomery's home, correct?

25

Yes, that was -- it was from his master bedroom closet in

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2
3
4
5
6
7
8
9

a safe.
Q

Okay.

And how many CDs, if you recall, were found in

Mr. Montgomery's master bedroom closet?


A

I don't have any memory any more of that.

I couldn't

even give you a good guess.


Q

As far as the cash, do you remember how much cash was

found in the closet?


A

I can't, without looking at any documents from the

search, recall.

A large amount of money.

Whether it was

10

10,000, 40,000, 70,000, I can't recall without looking at a

11

302 or something from that incident.

12

It was -- I just recall it was a large amount of

13

cash that -- to be sitting in a safe as opposed to a financial

14

institution.

15

What happened to the cash?

16

We asked Mr. Pulver if he wants to witness it -- witness

17

us doing the count.

18

was placed back in the safe.

19

Okay.

20

No.

21

Okay.

22
23

He goes, no, I trust you, and the money

So the money wasn't taken.

Anything else in this picture that wasn't taken in

the search?
A

I know we didn't take the credit cards, and I believe

24

that we left the passports, but we took photographs of the

25

passports.

The jewelry wasn't taken.

I'm not sure what some

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of the other items are.


Q

Okay.

So there are some items depicted in pictures that

were not actually taken; is that correct?

That's correct.

Okay.

6
7

Now, looking at the CDs in that photograph, do you

know if all of those CDs were taken?


A

I'm seeing CDs that were definitely seized just by the

titles of them, and I would presume, based upon what type of

media it was, that all the CDs were taken.

10

Okay.

11

I can't specifically recall.

12

Can you show me on Exhibit A, I believe, which is the

13
14

Do you know whether all those CDs were taken?

return inventory, where those CDs are identified?


A

Excuse me.

As I'm looking at this photo, I do recall

15

comparing this photo to the items seized, and, yes, all these

16

CDs were taken.

17
18

Okay.

Can you show me on Exhibit A, which is the small

binder Mr. Addington gave you, where those CDs are identified.

19

I believe -- item number 5, 15 compact disks.

20

Where it says 15 compact disks?

21

Yes.

22

How do you know that relates to the CDs in the photograph

23
24
25

that's marked number 48?


A

Well, it's -- there's 15 CDs, and that would have been

most likely the grouping they would have remained in.

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So your only knowledge is that the number seems to match.

They correspond with the photos of items seized.

How do they correspond other than the fact that there are

15?

There are 15.

And that's the only way they correspond?

From what I'm seeing, from my knowledge, yes.

Okay.

There's no description of what's on the face of

the CDs, nothing at all that would tell us precisely that

10

these are the CDs depicted in photograph number 48; is that

11

correct?

12

That is correct.

13

Okay.

14

Would you turn to photograph number 52 under the

same exhibit.

15

Yes, ma'am.

16

And if you look at this, you can see the -- parts of the

17

cash, the bills that are laying out that we see on the

18

previous photograph, correct?

19

Correct.

20

Are these the same CDs?

21

Yes.

22

How do you know that?

23

I'm looking at the previous photo and I'm looking at

24
25

these photos.
Q

These are closer up of the same CDs.

These are the same CDs.

Is --

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The same title CDs just in a closer-up --

Are there more CDs in this picture than in the picture

which is marked number 48?

There appears to be -- yes, there are 16 in this photo.

And how do you account for the difference?

I don't have any specific recollection if one more was

7
8

found between the photos, I can't recall.


Q

You can't recall?

If you look at the third CD on the left, it's kind

10

of upside down, but it says Warren's Old E-mails.

11

that?

Can you see

12

Yes, ma'am.

13

Does that CD appear in an identifiable way in the picture

14

that's marked number 48?

15

MR. PEEK:

16

MS. GAROFALO:

17

THE WITNESS:

18
19

You're looking at 52?


Uh-huh.
It does not appear that way.

BY MS. GAROFALO:
Q

No, it does not.

20

Do you have any idea as you sit here today how the

21

CD that says Warren's Old E-mails ended up in photograph

22

number 52 which you just testified was the same group of CDs

23

photographed in 48?

24
25

I don't have specific recollection of how that one came

about.

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Okay.

Can you show me where in Exhibit A this set of CDs

is identified as having been seized from Mr. Montgomery's

home?

4
5
6

Now, it could be item 13, 16 compact disks, I can't

recall.
Q

So you don't know.

You don't know whether these are the

same CDs, different CDs, and there's really nothing on the

inventory list that tells you which specific CDs are being

identified; isn't that correct?

10

As I said, again, at the time of the seizure where

11

they're generally categorized in a generalistic sense, the

12

number of CDs, it's not what each title of each CD is.

13

Okay.

Let's go back, then, and look at the Exhibit A

14

which is the inventory that was submitted to the Court with

15

the return?

16

Yes, ma'am.

17

Okay.

And I think you testified that typically the agent

18

would go back to the office, compare what had been actually

19

seized, and then make a more specific or particularized list

20

showing the items that were actually taken from the site,

21

correct?

22
23
24
25

And that's for our evidence, entering into our computer

system for tracking purposes.


Q

Does this show up anywhere, anything that identifies

these CDs that I can tell that Warren's Old E-mails was

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actually seized from the site, or what inventory number

includes that CD or, in fact, any of the CDs we see in these

photographs?

There's no names for CDs I'm seeing on this list.

Are there names of CDs anywhere that might identify these

6
7
8
9

CDs and help us establish the chain of custody for them?


A

Without looking at FD192s, I would say FD192s and the

photographs taken at the time of the seizure.


Q

Well, if you would like to go back to the -- to the large

10

notebook which has the FD192s, and start with 1 up to 10 and

11

see if you can find anything that reflects that these CDs

12

which were purportedly taken from Mr. Montgomery's home

13

include Warren's Old E-mails.

14

No, I do not.

15

Now, I would like you to go back to Exhibit C in the

16

smaller notebook that Mr. Addington gave you which is your

17

return inventory.

18

Yes, ma'am.

19

I would like you to show me on the return inventory where

20
21
22
23

the CDs that we've seen in photographs 48 and 52 are listed.


A

From my recollection, it's in multiple spots because I

had this discussion with Mr. Pulver at the time.


Initially, they wanted the CDs -- titles listed, but

24

since there was such a large volume of CDs, trying to make a

25

long process from being even longer, most of the CDs were just

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once again labeled 72 CDs or 15 CDs, so -Q

So it would be virtually impossible, Agent Thomas, to

tell precisely which CDs were actually seized or returned,

isn't that correct?

No, that's not the case, no.

It's time to compare the

photos, time to compare the property list and FD192s, but, no,

it's not impossible.

8
9
10
11
12
13
14
15
16

How can you compare the FD192s with photos and determine

which CDs in particular are referenced in the logs?


A

You compare the photos, you compare the CDs, and you

start a running count of the items returned.


Q

So all you can do is just count them up and say it seems

to be about the right number.


A

And you compare the photos of the titles that you can see

with the items seized as well.


Q

Okay.

And you're aware that the number of CDs returned

17

exceeded the number of CDs reflected on the search

18

inventories; is that correct?

19

Yes, and your client and Mr. Pulver were there when we

20

discovered the additional CDs when they were double stacked in

21

some of the slots as they were photographing.

22

As evidenced one time, I believe they wrote down 15

23

and crossed out and wrote 16 due to one of the CDs being

24

behind another CD that wasn't -- no one realized that until --

25

on the return.

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Okay.

And so even the number of CDs that were taken as

reflected on the seizure inventories is different from the

number of CDs returned as reflected on the return log,

correct?

Yes.

Okay.

And how is it that somebody missed the fact there

were double CDs during the search or during the period of time

in which the seized items were prepared for the inventory log

to prepare the return for the court?

10

Just as easily -- when I was doing the count in front of

11

Mr. Pulver and Mr. Montgomery, when I counted 15, until it was

12

pointed out there was a double stack on there.

13
14
15
16
17
18

It's --

So that was the first time anybody noticed it was a

double stack; is that your testimony?


A

Well, that was the first time it was noted there was a

double stack.
Q

So there are more CDs returned than are listed on the

inventory log; is that correct?

19

As previously stated, yes.

20

When the items were returned to Mr. Montgomery in March

21

of 2007, you testified that Mr. Montgomery, as you handed him

22

items and he signed a receipt, went out to his car.

23

remember that testimony?

24

Yes.

25

How do you know that?

Do you

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3
4

I know he carried items out, and I could see him walking

out of our office.


Q

You could see him walk out of -- you could see him walk

where out of your office?

Out to the hallway.

Okay.

I was in the room.

Okay.

And I heard conversation about them taking down to the

10
11

Did you see him walk to the car, Agent Thomas?

So you don't know --

car or vehicle or -Q

Okay.

Did you see Mr. Montgomery take items and return

12

to the car as they were returned to him on an item-by-item

13

basis?

14

As I said, no.

I didn't see him go out to the car.

15

saw him walk out to the hallway, and heard conversation about

16

taking the items down.

17

Okay.

And are you aware that Mr. Montgomery was taking

18

the items out to the hallway and leaving them in the hallway

19

until the whole process was completed?

20
21
22

I'm not aware that he left items in the hallway unguarded

during the process.


Q

Isn't it true, Agent Thomas, that at one point you found

23

out he was putting items in the hallway and you made him bring

24

them back into the room?

25

Something was brought back into the room.

I can't recall

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2

specifically what the item was.


Q

Okay.

Do you remember the conversation, Agent Thomas,

where you found out he was stacking up these items in the

hallway and you made him and Mr. Pulver bring them back into

the room?

I know he brought things back into the room.

I can't

recall which items they were.

in the hallway within our office, or are you talking the

hallway outside our office?

10
11
12

And if he was just leaving them

Isn't it true, Agent Thomas, that there is a video camera

in hallway outside your office?


A

There are video cameras surrounding our office.

I don't

13

want to give specific locations where our security measures

14

are at.

15

Understandably.

Is there any reason why the tape from

16

the video camera in the hall was not provided in connection

17

with this proceeding?

18
19
20

To my recollection, that video -- I don't know if that

one was maintained or not.


I know during some of the -- during the property

21

return, it occurred to us that based upon the -- I'm going to

22

be frank here, the lies put forth before the Court of our

23

actions and the gamesmanship that was going on during the

24

property return, we did decide to occur those to record

25

because we don't typically record those inside our office to

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record the property return.


Q

So you recorded the inside of the office which is

unusual, correct?

Correct.

You knew stuff was being stacked outside, as you say, in

6
7
8
9

an unsecured area, correct?


A

I don't know if they were being maintained out there in

an unsecured area.
Q

That wouldn't make sense to me.

But you knew it because you heard a conversation and

10

asked Mr. Montgomery at some point to bring some of the stuff

11

back in.

12

I recall conversation going on about bringing stuff back

13

in.

14

something being notated or about a hard drive.

15

recall -- I can't recall what that was about.

I think it had more to do with something about -- about

16

Did you make any notes?

17

No.

I don't

I have not seen anything that I would have -- I

18

reviewed my 302 from the search return, and that was not noted

19

on the 302, and I don't have specific recollection of it.

20
21

Do you know any reason why the 302 wasn't provided in

connection with this hearing?

22

In connection with this hearing?

23

But there was a 302.

24

I did -- there is a 302.

25

Just a couple of final questions.

I don't know.

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If you'd go back to Exhibit C in the small binder


Mr. Addington gave you, and that's the return inventory.

Yes, ma'am.

Okay.

If you go to the very bottom of the second page,

page 2 out of 4, you'll see an entry with a star, and on the

next page there are two other entries with stars.

7
8

If you then go to the final page, you'll see another


asterisk, and it says,

"Three still images taken from three DV

10

tapes, items 15, 16, 17 on the inventory list, to

11

determine content of DV tapes.

12

seized by the FBI, they were copied by the FBI."

13

These images were not

Do you see that?

14

Yes, I have very specific recollection of this.

15

Okay.

16
17
18

So these, again, were additional items that were

returned that weren't seized from Mr. Montgomery.


A

That's one way to classify it.

They're images that were

captured from the video footage on those tapes.

19

Okay.

20

And when your client saw them, Mr. Montgomery, he had a

21

very strong physical reaction denying that he had produced

22

such things, and he was quite nervous when he saw those.

23

He was quite nervous.

He said he had --

24

He was upset.

25

He said that those hadn't been taken from his home,

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correct?

Correct.

Or his storage unit, correct?

Well, he was saying he did not produce those photos, and

SSRA Krista Stanton and Eric Pulver had discussion as far as

the language contained on the asterisk on the last page, and

that's how that one, two, three line wording came about was

discussion between them.

Do you know who took those photos?

10

I learned that Special Agent West produced those photos

11

from the three videotapes, the many videotapes of Predator

12

footage.

13

How did you learn that?

14

Mr. West.

15

Did he tell you at the time of the return?

16

I can't recall when I learned that, I just know that he

17
18
19
20

produced -- he produced them.


Q

Do you know of any other photos that exist that were not

returned?
A

No, everything that was seized in the two searches was

21

returned, and even items produced from items seized during the

22

search warrant were returned.

23

Okay.

Just to summarize, then, to make sure I'm correct,

24

the inventory, the return inventory and two additional hard

25

drives, correct?

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2
3
4
5
6
7
8
9

Correct.

Yes, the two additional forensically-copied

hard drives, imaged hard drives, yes.


Q

Had additional CDs that were not identified in the search

inventories, correct?
A

No, you're trying to mince words.

Those CDs were seized,

they were just returned, it was a different count.


Q

Agent Thomas, I'm not mincing words.

They don't appear

on the inventories taken at the time of the seizure, correct?


A

If you're talking numerically speaking?

No, they don't

10

appear on the list, the 15 on one became 16 on the return

11

because of double stacking.

12

And there were photographs that also were an addition to

13

the items seized from Mr. Montgomery on the return list that

14

don't appear on the search inventories.

15

Correct, because they were produced from the videotapes.

16
17

MS. GAROFALO:

Thank you.

I have no further

questions.

18

THE COURT:

19

Thank you.

Any redirect, Mr. Addington?

20
21

Is that also correct?

REDIRECT EXAMINATION
BY MR. ADDINGTON:

22

Turn to Exhibit C, please, in the smaller book.

23

Yes, sir.

24

To address the issue of the CD discrepancy, if you want

25

to call it that, look at item 9 in Exhibit C.

It's on the

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second page.

Yes, sir.

What is described there on item 9?

Item 9 has our bar code of E03968100, one yellow and gray

case containing eTreppid disks - 51 CDs.

Does that correspond to Exhibit B, item 1?

Yes, it does.

Does Exhibit B, item 1, say that there are 51 CDs in the

case?

10

It does not.

11

Were there 51 CDs in the case at the time it was seized?

12

Yes.

13

Turn to Exhibit E of Agent Devore's photographs on page

14

58, photograph 58.

15

Yes, sir.

16

Is that the yellow case that's referred to in item 9 of

17

Exhibit C?

18

Yes.

19

And in the photographs that follow, 59 through 73, are

20

those photographs of all of the CDs that were inside that

21

yellow case at the time the case and the CDs were returned?

22

Yes.

23

All right.

I want you to start at page 59, photograph 59

24

of Exhibit E, and continue through page 73 of Exhibit E, count

25

the number of CDs and tell me how many you count.

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Yes, sir.

All right.

you.

Correct.

And the inventory shows 51 CDs in the case, correct?

That is correct.

Turn to photograph number 73 and 71 and tell me whether

8
9
10
11
12

And I think everyone was counting along with

So there were 57 CDs pictured, correct?

those two photographs partially account for the six extra CDs.
A

Yes, photograph or page 71, the Logitech and the Project

Didot, with the date of 4/6/03, appear on 73.


Q

So the two CDs on the page 71 photograph also appeared in

page 73 photograph, correct?

13

14

15

Fifty-seven.

Yes, they do.


Were the two other CDs on page 73 underneath the Logitech

CD and the Project Didot CD?

16

Yes.

17

Is that why they were photographed twice?

18

Yes.

19

All right.

20

Once again, that's when we're doing the count, it was not

So that accounts for two extra CDs, correct?

21

noticed until we were doing the count out that there were

22

double-stacked CDs.

23
24
25

So that brings us down to 55 CDs.

We need to account for

four others, correct?


A

Yes, sir.

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Look at page 72 and compare it to 64, please.

2
3

And the same question, are the four CDs pictured on


photograph 64 also appear in the photograph on page 72?

Yes.

And is there an additional CD photographed on 72 labeled

Compressed File Output?

Yes.

And was the CD labeled Compressed File Output on 72

underneath one of the other CDs?

10

Yes, it was.

11

So with these two pages, 64 and 72, there's a total of

12

four CDs that were photographed twice; is that right?

13

Yes, sir.

14

Does that fully account for the 51 CDs in the case but 57

15

CDs photographed?

16

That is correct.

17

All right.

18

So how many CDs were returned to

Mr. Montgomery in this yellow case?

19

Fifty-one.

20

And are there a total of 51 individual CDs pictured in

21
22
23

Exhibit B in these photographs we've been describing?


A

There's a total of 57 CDs pictured, including double

takes, there's actually 51 CDs.

24

All right.

25

Yes, sir.

Please turn to Exhibit F and page 41, please.

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1
2

And up in the top above where this box of hard drives is,

is the yellow case pictured there?

Yes, it is.
And turn the page to the next photograph.

Is that a

picture of the same yellow case opened to show some of the

CDs?

Yes, it is.

8
9

THE COURT:
are, sir?

10
11

I'm sorry, can you tell me where you

MR. ADDINGTON:
of Exhibit F.

12

THE COURT:

13

MR. ADDINGTON:

14

Oh, thank you.

THE COURT:

16

MR. ADDINGTON:

17

THE COURT:

19

Shows the yellow case partially

open.

15

18

I'm sorry, photograph number 42

Say again?
Forty-two of Exhibit F.

Thank you.

BY MR. ADDINGTON:
Q

Agent Thomas, was the yellow case containing 51 CDs

20

returned to Mr. Montgomery in the same condition in which it

21

was seized?

22

Yes.

23

Were all of the CDs in the case when -- were the 51 CDs

24
25

in the case when it was seized?


A

Yes.

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2

And were the same 51 CDs in the case when it was

returned?

Yes.

So does item 9 in Exhibit C reflect the return to

Mr. Montgomery of the same CDs which were seized from him?

Yes, it does.

Please return to Exhibit C and go to item 25.

Yes, sir.

What is reflected there as being returned to

10

Mr. Montgomery?

11

Thirteen computer CDs.

12

And if you look at Agent Devore's photograph number 111

13

in Exhibit E, please turn there.

14

Yes, sir.

15

Will you tell me how many CDs are pictured there.

16

THE COURT:

17

MR. ADDINGTON:

18
19
20

I'm sorry, say again?


Number 111 in Exhibit E.

BY MR. ADDINGTON:
Q

And the question, sir, is how many CDs are pictured in

photograph number 111?

21

Thirteen.

22

And now turn to Exhibit G, page 52, photograph 52.

23

think you previously looked at that with Ms. Garofalo.

24

Yes, sir.

25

Please count and tell me how many CDs are reflected in

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that photograph.

tell me again.

Yes, sir.

Sixteen?

On 52?

All right.

I think you did that once before, but please

Sixteen.

Yes, sir.
So there are 13 CDs in photograph E-111,

correct?

Yes, sir.

So go ahead and turn to that page again, but keep this

10
11

Photograph 52 available as well.


A

Yes, sir.

12

THE COURT:

13

MR. ADDINGTON:

14

Wait a minute.

your Honor --

15

THE COURT:

16

MR. ADDINGTON:

17

I know.

THE COURT:

19

MR. ADDINGTON:

21
22

-- is being compared to G,

photograph 52.

18

20

One eleven, Exhibit E,

You're on E-111, sir?


Yes.

BY MR. ADDINGTON:
Q

And the question, Agent Thomas, is does each and every CD

in photograph 111 also appear in photograph 52 of Exhibit G?

23

Yes.

24

Now, there must be three additional CDs in photograph 52,

25

correct?

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That is correct.

Please turn to photograph 113 of Exhibit E.

What is

pictured there?

Three computer CDs.

Do those three computer CDs on photograph 113 of Exhibit

E also appear in photograph 52 of Exhibit G?

Yes.

And, in fact, are they the three CDs that are on the top

row in front?

10

Yes.

11

All right.

So the 13 CDs in photograph 111 and the three

12

CDs in photograph 113 of Exhibit E, do those correspond to the

13

16 CDs in photograph 52 of Exhibit G?

14

Yes.

15

So is there any discrepancy in the number of CDs returned

16

with respect to these 16 CDs in 113 and 111 of Exhibit E?

17

No, sir.

18

And do those 16 CDs, total of 16 CDs, correspond to

19

item 13 of Exhibit A?

20

Yes, sir.

21

Go to item number 26 of Exhibit C, please.

22

THE COURT:

I'm sorry, say again, Mr. Addington?

23

MR. ADDINGTON:

24

THE COURT:

Item 26 of Exhibit C.

Thank you.

25

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1
2
3

BY MR. ADDINGTON:
Q

And tell me what is being returned to Mr. Montgomery on

that line item.

Sixteen computer CDs.

Now, you crossed out 15 and wrote 16, correct?

That is correct.

So once and for all, how many CDs were returned to

Mr. Montgomery as to that line item?

Sixteen.

10

Turn to Exhibit E, photograph number 112, and tell me how

11

many CDs are pictured in that photograph.

12

Sixteen.

13

I'm sorry?

14

Sixteen.

15

Thank you.

16

And are these 16 CDs different from the 16

CDs depicted in photograph number 111 plus photograph 113?

17

One thirteen -- yes.

18

Okay.

19

And turn to Exhibit A, item 5.

What is shown as

being seized there?

20

I think I may be at the wrong spot.

21

Exhibit A, item 5.

22

It shows 15 compact CDs.

23

All right.

Where --

So Exhibit A shows, with respect to this

24

particular line item, 15 compact disks being seized from the

25

home, correct?

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That is correct, sir.

And 16 CDs being returned, correct?

Correct.

All right.

Please turn to Exhibit G, the photographs of

the search of the home and specifically photograph number 87

and 88 and 91.

CDs being seized from the home?

Do those three photographs show a display of

Yes, they do.

Please, on those three photographs, count the number of

10

CD cases that are being displayed.

11

Yes, sir.

12

I'm going to ask you to count again.

13

Okay.

14

Because I think that there's 15, but you tell me.

15

There's 15.

16

Are we sure?

17

Yes.

18

All right.

19

Fourteen.

I just went to law school, not -Are we sure that there's 15 cases depicted on

those three photographs, sir?

20

Yes, sir.

21

Comparing the actual CDs on photograph 87, 88 and 91 to

22

the CDs that are being returned to Mr. Montgomery in

23

photograph 112 of Exhibit E, can you tell me whether all of

24

the CDs depicted on the photographs in Exhibit G also appear

25

in the photograph number 112 of Exhibit B?

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THE COURT:

Can you say that again, sir, or --

I'm lost so -- so we're starting -- you're going to Exhibit E,

right?

4
5

MR. ADDINGTON:

Beginning with Exhibit G, the

three photographs 87, 88 and 91 --

THE COURT:

Okay.

MR. ADDINGTON:

-- display 15 CDs in their

cases.

Do those 15 CDs appear in the photograph of the CDs

being returned to Mr. Montgomery, photograph 112 of Exhibit E.

10

THE COURT:

11

THE WITNESS:

12

Thank you.
Yes, they do.

BY MR. ADDINGTON:

13

14

you.

15

Yes, they do.

16

So obviously there must be one additional CD pictured in

17

I'm sorry, did you answer the question?

I didn't hear

112 because there's 16 in that photograph, correct?

18

That is correct, sir, yes.

19

Which CD pictured in photograph 112 of Exhibit E does not

20
21

appear in the photograph 87, 88 or 91 of Exhibit G?


A

Looking at the second row from the bottom, far right, the

22

Windows XP, that was underneath the silver -- the one with the

23

blue writing on it in the blue case with the clear top.

24
25

THE COURT:

Which exhibit are you looking at,

sir?

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THE WITNESS:

THE COURT:

THE WITNESS:

Page 112 of Exhibit -Got it.


Yes.

Say that again.


The Windows XP CD on the far

right, second row from the bottom, was underneath the CD to

the left of it.

6
7
8
9
10

THE COURT:

Oh, I see.

BY MR. ADDINGTON:
Q

So, Agent Thomas, in your view, does that account for the

15 CDs reflected on Exhibit A having been seized and the 16


CDs being returned to Mr. Montgomery?

11

Yes, sir.

12

Turn to Exhibit G, page -- photograph 52, please.

13

Yes, sir.

14

And there are two rows of CDs there, correct?

15

Yes, sir.

16

If you go on the first row, there's a pink case and then

17

a yellow case, then a blue case, correct?

18

That is correct.

19

And some attention was directed to that blue case that

20

says Warren Old E-mail, and it appears to be dated May 17th,

21

2000 and something, correct?

22

That is correct.

23

And that was a CD that was seized from Mr. Montgomery's

24
25

home, correct?
A

Yes.

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Okay.

Turn to photograph 111 of Exhibit E, Agent

Devore's photographs, and looking at this picture so that the

number designation is in the bottom right-hand corner, in the

second row from the right and the second CD up, it's a dark

blue case.

Do you see that?

Yes, sir.

Is that the same CD that appears on Exhibit G,

photograph 52, labeled Warren Old E-mail, May 17th date?

I see it.

10

So that CD was seized from Mr. Montgomery and returned to

11

Yes, sir.

Mr. Montgomery, correct?

12

Yes, sir.

13

Other than that one discrepancy, if you will, regarding

14

15 CDs being seized and 16 CDs being returned which we have

15

already talked about at some length, are you aware of any

16

other discrepancy in the number of CDs seized and the number

17

of CDs returned?

18

I can't recall any, no, sir.

19

Well, let's not rely entirely on your recollection, since

20
21
22

there's only one more line item of CDs.


Number 29 on Exhibit C, what items are being
returned to Mr. Montgomery on that item?

23

THE COURT:

I'm sorry, what item number, sir?

24

MR. ADDINGTON:

25

THE COURT:

Item 29.

Thank you.

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156

MR. ADDINGTON:

I think the number is obscured

by the hole punch, your Honor, but it is directly below

item 28.

THE COURT:

MR. ADDINGTON:

doesn't have the hole punch.

THE COURT:

THE WITNESS:

I see it.

9
10
11
12

I have another set of this that

That's fine.
Item 29 is 78 CDs ending in bar

code 103.
BY MR. ADDINGTON:
Q

All right.

And does that correspond to the seizure

inventory, Exhibit B, item 11?

13

Yes, it does.

14

And please turn to Agent Devore's photographs on Exhibit

15

E, photograph number 115.

Is that a photograph of the 78 CDs

16

being returned to Mr. Montgomery?

17

Yes, it is.

18

And in the photographs that follow, specifically

19

photographs 116 through 120, are those individual photographs

20

of smaller groups of those same CDs to show the number?

21

Yes, they are, and, once again, the names were not

22

notated on the property return for the large number of CDs,

23

and, in fact, they were taking photographs of them.

24
25

Please turn to Exhibit F, photograph number 48.

This

would be the photographs taken at the storage unit number 140.

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157

THE COURT:

MR. ADDINGTON:

3
4

Sorry, what number?


Photograph 48 of Exhibit F.

BY MR. ADDINGTON:
Q

Agent Thomas, does photograph number 48 of Exhibit F

depict the way these 78 CDs were found in a box in

Mr. Montgomery's storage unit number 140?

Yes, they do.

And the way they're pictured there in picture number 48

9
10
11

of Exhibit F, is that how they were found when they were first
located?
A

Yes, sir, there were several -- at least I recall this

12

and the other box of media that were put together in just this

13

way or lack thereof.

14
15
16

It might just be me, but when you lean that way you move

away from the microphone so you might want to either -A

I say this box and the other box that had hard drives in

17

it were found as they were, just as disorganized as the photos

18

indicate that they were.

19
20

And then were the CDs from this box removed from the box

at the time of the search to photograph them?

21

Yes.

22

Turn to page photograph number 52 of Exhibit F and tell

23

me if those are the CDs that were removed from that box at the

24

time of the search.

25

Yes.

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1
2

And exhibit -- the next photograph, number 53, does that

also show the same 78 CDs from that box?

Yes.

So are the 78 CDs that were returned to Mr. Montgomery as

reflected on item 29 of Exhibit C the same 78 CDs that were

seized from Mr. Montgomery?

Yes.

And looking at photograph number 48 of Exhibit F again,

9
10

Yes, they are.

did there appear to you to be any organizational method to how


those CDs were placed into that box?

11

Absolutely not.

12

Agent Thomas, did you access any of this seized material

13

in the FBI custody prior to March 29th of '07 when you

14

processed them out to Mr. Montgomery?

15

No.

16

So March 29th, '07, was the first time you handled or

17

viewed these materials after the initial search.

18

That is correct.

19

And you became the case agent for this larger

20
21
22
23

investigation at some point in time, correct?


A

That is correct, approximately January 2007, what, three

months before the return of property here.


Q

And as the case agent, would it be the practice of the

24

FBI that you know or would be notified if anybody within the

25

FBI or any other law enforcement officer accessed the FBI

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159

1
2
3
4

storage room to view or handle these seized materials?


A

Right, I would be notified if any other FBI personnel

would be -- requested to be or wanted to handle the evidence.


Q

Putting aside law enforcement personnel, would you be

notified if anybody wanted to access the evidence control room

to view or handle these materials?

Right.

Well, I would be notified that outside agencies

wanted to view the evidence, but outside agencies wouldn't be

allowed in the evidence room.

10

They would not be?

11

Correct.

12

I just didn't hear you.

13

I'm sorry.

Yeah, outside agencies, outside the FBI,

14

regardless of whether they are law enforcement or not,

15

wouldn't be permitted in the FBI evidence room.

16

During the time that you were the case agent for this

17

investigation, did anyone access the evidence control room to

18

view or handle these seized materials?

19
20
21
22

No, I have no knowledge of anyone accessing or handling

the evidence.
Q

And as case agent, you would be notified if that

happened?

23

Yes.

24

Let's talk about Exhibit 42.

25

sir?

Do you still have that,

That was the exhibit provided to you by Ms. Garofalo.

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160

Yes, sir.

And particularly focusing on the second page of

Exhibit 42, do you have that?

Yes, sir.

I'm going down to item 11, there's a reference to 32

three-and-a-half-inch disks.

Do you see that?

Yes, sir.

And it's actually not clear to me, is it 32 or is it 132?

It looks like a 32.

There's a comma after the CDs, and

10

the same marking is after the word disks, nothing before, it

11

says 132 looks like.

12

Do you know whether that quantity of floppy disks or

13

three-and-a-half-inch disks were seized from Mr. Montgomery's

14

storage unit?

15
16
17
18

I have no knowledge of us seizing any floppy disks

outside of the 3.5 that was in the tower.


Q

Okay.

We've already talked about the one disk that was

actually installed in the tower.

19

At the time of seizure.

20

That was item 1 of Exhibit C.

21

Do you remember that

yellow disk?

22

Yes, sir.

23

To your knowledge, is that the only floppy disk that was

24
25

seized?
A

Yes, sir.

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161

And so this reference to a quantity of

three-and-a-half-inch disks in Exhibit 42, does that

correspond to any seizure of disks that you recall?

No, sir.

When you processed material out to Mr. Montgomery and his

counsel on March 29th of '07, was any issue raised at that

time about floppy disks or three-and-a-half-inch disks not

being returned to him but which should be returned to him?

Absolutely not, and I asked Mr. Pulver if they were

10

satisfied with the return of evidence and that we had returned

11

everything, and he said -- he wouldn't give me an absolute

12

answer, but he felt that we had returned everything.

13
14

And did Mr. Pulver have a copy of the inventory of seized

items from both the home and the storage unit?

15

Yes, sir.

I provided him a copy.

16

Now, did you provide him a copy with this receipt that's

17

Exhibit 42, or did you provide him a copy of the return on the

18

warrant that's Exhibit A and B, or both?

19
20
21

I know in one of the photographs it depicts what I had

brought out.
I'm a little confused at the moment.

I just think

22

it's the property receipt here.

I don't think it was a copy

23

of the return to the Court.

24

clearly indicate if that was included in what I gave

25

Mr. Pulver.

But I think the photograph would

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162

Prior to today have you ever been informed or advised by

anyone that there was an issue about three-and-a-half-inch

disks not being returned to Mr. Montgomery?

4
5
6
7

No.

The first time I learned about it was on

cross-examination.
Q

Turn to the photograph that's photograph number 52 in

Exhibit F, the photos from the storage unit.

Yes, sir.

And we've already looked at this photograph for the CDs

10

that are pictured there, correct?

11

Yes, sir.

12

Just above the CDs in this photograph, is there a

13

quantity of three-and-a-half-inch disks pictured?

14

Yes, there are.

15

To your recollection, were those disks in the same box as

16
17
18
19
20
21
22
23
24
25

the 78 CDs that were seized?


A

Yes, that would be showing the contents of the box that

was previously pictured.


Q

So does this picture depict what was seized or what was

in the box?
A

This picture is depicting what was in the box, and there

also appears to be other items along the side.


Q

Let's look at those items along the side of the CDs.

you identify what those are?

Can

Just from what the picture is here, containers of some

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163

sort.

for.

Were those items seized?

No.

So there are things pictured in number 52 photograph,

6
7
8
9

I'm not sure if they're containers for -- what they're

Exhibit F, that were not seized; is that fair to say?


A

Yes, sir, just as we had taken photographs of the

passports, the cash.


Q

Okay.

You don't know if these floppy disks -- I'm sorry,

10

to your recollection, the only floppy disks that were seized

11

was the yellow disk that was in the item 1 tower from Exhibit

12

C, correct?

13

That is correct, sir.

14

We can state with certainty, can't we, that no quantity

15

of floppy disks or three-and-a-half-inch disks were returned

16

to Mr. Montgomery on March 29th; is that right?

17

Correct, yes.

18

During your search activity at the home or at the storage

19

unit, did you see three-and-a-half-inch disks other than those

20

that are pictured on number 52, Exhibit F?

21

I really have no specific recollection of seeing any

22

other compact disks at the residence.

23

but I don't recall seeing any.

24
25

There could have been,

Do you know why these three-and-a-half-inch disks that

are pictured in photograph 52, Exhibit F, were not seized?

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164

That was Agent West's call not to seize them.

Turn to the much larger book provided to you by

Ms. Garofalo, Exhibit 10.

Yes, sir.

And this is the chain of custody and evidence control

package for the bank statements, correct?

Correct.

All right.

And there was some discussion about the gap

of time between the time the item was seized and the time that

10

it was actually physically processed into the storage room.

11

Do you remember that conversation?

12

Yes, sir.

13

And that gap of time was similar to the same gap of time

14

as pertained to other items that were seized from

15

Mr. Montgomery, correct?

16

Yes, sir.

17

Is that gap of time unusual in any way with respect to

18

how FBI processes material, seized material, into the evidence

19

control room?

20

No, sir.

21

Is the FBI office space a secure facility?

22

Yes, it's a vaulted facility.

23

I'm sorry, I didn't understand you.

24

It's a vaulted facility.

25

And after the search of Mr. Montgomery's home and after

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165

the search of Mr. Montgomery's storage unit number 40 [sic],

were the seized materials brought directly to the FBI's secure

facility and stored there?

Yes, and we do that with every search.

I'm sorry, you're talking too fast, I can't understand.

Yes, they were, and we do that with every search.

So is there any particular way these particular items

8
9

were processed into FBI custody?


A

No, sir, this was an ordinary search.

10

MR. ADDINGTON:

11

THE COURT:

12

MS. GAROFALO:

13
14
15

Nothing further.

Thank you.

Ms. Garofalo, anything on recross?


Just a few very quick questions.

RECROSS-EXAMINATION
BY MS. GAROFALO:
Q

Looking back, Agent Thomas, at photograph 52 in Exhibit

16

F, if you would, and that's the one that shows the floppy

17

disks, CDs and some additional items.

Do you see that?

18

Yes, ma'am.

19

And I think you just testified that some of the

20

additional items were not seized; is that correct?

21

That is correct.

22

Other than the floppy disks, did those additional items

23

end up on the inventory list?

24

No, ma'am.

25

And if you would go to Exhibit G, photograph number 48.

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166

Yes, ma'am.

Okay.

And there are a number of items on that photograph

that we've looked at before, credit cards, passports and so

forth.

Do you see that?

Yes, ma'am.

And you testified those items were not taken, correct?

Correct.

Do those items show up on an inventory list?

No, ma'am.

10

I'd like you to go to the second binder given to you by

11

Mr. Addington, and if you would turn to Exhibit E, photograph

12

number 111.

13

Yes, ma'am.

14

Okay.

And that's the photograph of CDs.

Mr. Addington

15

asked you to look at the second row from the right, that

16

middle one in the dark case.

Do you see that?

17

Yes, ma'am.

18

And you identified that as saying Warren's Old E-mails?

19

Yes, ma'am.

20

Can you read that?

21

I used a magnifying glass yesterday to look at it.

22

Okay.

23
24
25

So you looked at it yesterday.


You didn't provide Mr. Montgomery with readable

copies of some of these photographs, did you?


A

I personally did not do that.

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167

1
2

And even with a magnifying glass, you're telling me that

you can read that?

Actually, I did, yes.

You did.

Yes.

MS. GAROFALO:

I have no further questions of

this witness, but at this time I would like to move a few of

the exhibits into evidence.

9
10

THE COURT:

Thank you, sir, you may

be excused.

11

And Ms. Garofalo --

12
13

All right.

MR. PEEK:

Your Honor, I do need to even ask any

questions about the --

14

THE COURT:

15

MR. PEEK:

Oh, I'm sorry.


-- issue of evidence through the

16

FBI's receipt of inventory?

17

from the pleading.

18

THE COURT:

19

THE WITNESS:

20

THE COURT:

I want to put that issue to rest

Well -- keep your seat there, sir.


Yes, sir -- yes, ma'am.
First, let me ask Mr. Gomez, have

21

you reviewed the docket number -- I can't recall what number

22

it is now.

23

MR. PEEK:

126, your Honor.

24

MR. GOMEZ:

126.

25

THE COURT:

426?

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168

MR. PEEK:

126.

MR. GOMEZ:

126.

THE COURT:

Have you reviewed that, sir?

MR. GOMEZ:

Yes, your Honor.

There is just one

point that I would like to discuss, and I think it would be

best if we just discussed it at sidebar with all counsel.

There's an item referenced in here, and I'm not sure

if that's going to be released with this or not, it's not

attached here.

10
11

THE COURT:

All right.

Well, let's go ahead and

have a sidebar.

12

(Following is discussion at sidebar.)

13

MR. GOMEZ:

Your Honor, I believe that this

14

particular document has been reviewed before.

15

is a redaction on one of the pages.

16

There, in fact,

However, there is a reference, and I think we've

17

reviewed this, but there's a reference to see in camera

18

declaration of Mr. Montgomery.

19
20

If you're going to release just this document,


that's fine, I'm just not sure what document --

21

THE COURT:

Oh, all right.

22

MR. GOMEZ:

I'm just not sure what that document

23

is.

I just didn't want to highlight it.

24

THE COURT:

And you saw this?

25

MR. GOMEZ:

Yes, I did see the declaration.

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169

MR. PEEK:

I think the declaration he's talking

about here, your Honor, may be the one that is the February

declaration.

THE COURT:

It might be.

MR. GOMEZ:

It might be, but I just don't know.

If this is released, then it's not a problem.

THE COURT:

All right.

MR. GOMEZ:

Thank you, your Honor.

(End of sidebar discussion.)

10
11

Thank you.

MR. PEEK:

If the Court could just ask the

question, maybe it might save me the time.

12

THE COURT:

All right.

Just for the record,

13

having conferred with Mr. Gomez, the Court is going to go

14

ahead and unseal docket number 126 only with respect to docket

15

126-5 as it stands on the docket, and that's all that will be

16

unsealed.

17

And I don't have any problem with Mr. Peek asking a

18

few questions.

19

objection?

20

Ms. Garofalo, do you have anything or any

MS. GAROFALO:

I don't, your Honor.

21

just like to move these into evidence.

22

THE COURT:

23
24
25

All right.

and move those into evidence first.


MS. GAROFALO:

I would

Why don't we go ahead


Go ahead.

Exhibit 41, which are the

photographs taken from the surveillance video of the witness

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170

room at the time of the return.

THE COURT:

MR. ADDINGTON:

MR. PEEK:

THE COURT:

6
7

(Plaintiff's Exhibit 41 received in


evidence.)
MS. GAROFALO: Forty-two, which is the original

inventory log taken at the time of the seizure at the storage

unit number 140.

10

THE COURT:

11

MR. PEEK:

Any objection, Mr. Addington?


No objection, your Honor.

No objection, your Honor.


Plaintiff's 41 is admitted.

Any objection, Mr. Addington?


My only objection is to the

12

description that Ms. Garofalo provided.

13

original receipt, but it is a receipt that was left at the

14

storage unit.

15
16

THE COURT:

With that, do you have any

objection, Mr. Addington?

17

MR. ADDINGTON:

18

MR. PEEK:

19

THE COURT:

20

It may not be the

No objection.

None, your Honor.


All right.

And Mr. Peek has none,

so Plaintiff's 42 is admitted.

21
22

(Plaintiff's Exhibit 42 received in


evidence.)
MS. GAROFALO: And then Exhibits 11 to 19, and

23

23 to 30 which are the evidence control logs that Mr. Thomas

24

reviewed.

25

THE COURT:

Any objection, Mr. Addington?

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171

MR. ADDINGTON:

MR. PEEK:

THE COURT:

No objection.

None, your Honor.


All right.

Plaintiff's 11 through

19 and plaintiff's 23 through 30 are admitted.

5
6

(Plaintiff's Exhibits 11 through 19 and


23 through 30 received in evidence.)
THE COURT: Anything further, Ms. Garofalo?

MS. GAROFALO:

THE COURT:

Go ahead, Mr. Peek.

10

MR. PEEK:

11
12

No, your Honor.

All right, thank you.

Thank you, your Honor.

CROSS-EXAMINATION
BY MR. PEEK:

13

Good afternoon, Special Agent Thomas.

14

Good afternoon.

15

I just have really a few questions, and this is something

16

that arose in the pleading filed by Mr. Montgomery's counsel

17

with respect to whether or not there was evidence planted by

18

the FBI and by Mr. Trepp.

19
20

Was there any evidence at all added to the seized


material by any outside source?

21

Absolutely not, and I find the allegations reprehensible.

22

So the statement that evidence was planted by Mr. Trepp

23

is, as you say, reprehensible and false?

24

A bold-faced lie.

25

Pardon?

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172

Bold-faced lie.

2
3

MR. PEEK:

THE COURT:

Thank you very much, sir, you may

step down.

(The witness was excused.)

7
8

That's all I

have.

4
5

Thank you very much.

THE COURT:

All right.

Mr. Addington, call your

next witness.

MR. ADDINGTON:

10

THE COURT:

Mr. Michael West.

All right.

Let's go ahead, before

11

Mr. West takes the stand, and take about a 15-minute break.

12

We'll reconvene at five minutes past 3:00.

13

(A recess was taken.)

14

THE COURT:

All right, Mr. Addington, please

15

call your next witness, sir.

16

MR. ADDINGTON:

17

19

THE CLERK:

Please state your full name for the

record.

21

THE WITNESS:

22

THE CLERK:

23
24
25

Mr. Michael West.

M I C H A E L
W E S T,
called as a witness on behalf of the Government,
was sworn and testified as follows:

18

20

Thank you all.

Michael West.
Thank you.

Please be seated.

DIRECT EXAMINATION
BY MR. ADDINGTON:
Q

Would you state your occupation or profession, sir.

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173

I'm a supervisory special agent for the FBI.

How long have you been employed as a special agent or

3
4

supervisory special agent for the FBI?


A

I've been employed with the FBI for almost 25 years, 13

of those years -- I'm sorry, about ten of those years as an

agent, and a little over two -- a little under two as a

supervisor.

And what is the duty station you're assigned to?

Reno, Nevada.

10

How long have you been assigned to the Reno office?

11

For approximately 13 years.

12

Were you at one time serving in the capacity as the case

13

agent or lead agent for the FBI concerning Dennis Montgomery?

14

Yes, I did.

15

And am I using the right terminology, case agent or lead

16

agent?

17

Case agent.

18

As case agent, did you participate in the search of

19

Mr. Montgomery's home on Buckthorne Lane March 1st, 2006?

20

Yes.

21

Did you prepare an inventory of the items that were

22
23

seized from that location?


A

I prepared the return to the court.

The inventory was

24

prepared by -- the inventory receipt was prepared by a seizing

25

agent.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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Okay.

2
3

You're talking about two different things now.


Look at Exhibit A, please, in that smaller book

that's there at your podium.

Do you have Exhibit A?

Yes, I do.

Is that the return that was made to the court with

respect to the items that were seized from the Buckthorne

residence?

Yes, it is.

And Exhibit A is actually comprised of three pages,

10

correct?

11

Yes, it is.

12

The first page is the return on the warrant, correct?

13

Yes.

14

What are the other two pages?

15

The other two pages are -- it's an FD597, a receipt for

16

property, which was completed during the process of the search

17

warrant for items seized.

18

And at the bottom of the first page of the receipt, which

19

is the second page of Exhibit A, what does it indicate there

20

about how this receipt was handled after it was completed?

21

After it was completed, and the person completing it was

22

Special Agent Jackie Bloomingdale, I signed it as being the

23

party received by along with SA Bloomingdale, and then it was

24

also signed by Eric Pulver.

25

And then what happened to this receipt after that?

Was a

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copy given to Mr. Pulver?

Yes, both pages 2 and 3 were given to Mr. Pulver.

And then how is the first page of Exhibit A, the actual

4
5
6
7

return to the Court, prepared after the seizure?


A

After the seizure I sat down with pages 2 and 3 and

transposed the information onto the return.


Q

And how soon after the seizure took place on March 1st

would you have prepared the return on warrant which is the

first page of Exhibit A?

10

Sometime -- I would have prepared it sometime prior to

11

the return on March 8th.

12

it.

13

14
15
16
17
18

I don't recall the exact day I did

And you're getting the March 8th date from the very top

of the filing information at the top of the first page?


A

No, I'm getting the date from the bottom next to

Magistrate Cooke's signature.


Q

And does Exhibit A reflect a description of what was

seized from the Buckthorne residence?

19

Yes, it does.

20

Did you also participate in the search of

21

Mr. Montgomery's various storage units on March 3rd, 2006?

22

Yes, I did.

23

Did you prepare an inventory of items seized from unit

24
25

140 storage unit?


A

Yes, I did.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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Turn to Exhibit B and tell me whether that is the return

made to the Court with respect to the execution of that

warrant.

4
5
6
7

This is the return I provided to the Court, but I don't

see the actual receipt left on site.


Q

All right.

We'll get to that in a moment, but Exhibit B

is the return on the warrant?

Yes.

And is this in your handwriting, Exhibit B?

10

Yes, it is.

11

Was there anything that was seized from the storage unit

12

number 140 on March 3rd, '06, that is not reflected in this

13

return on the warrant?

14

No, there is not.

15

Turn to Exhibit F, please.

This has been previously

16

identified as photographs from the search of the storage

17

units.

Do you recognize them as such?

18

I do.

19

Is unit number 140 the only storage unit from which items

20

were seized?

21

Yes.

22

Other units were searched, correct?

23

They were.

24

But, again, 140 was the only unit that contained

25

materials that were seized?

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Correct.

And the date of that seizure activity was March 3rd, '06?

Yes.

Turn to page number 33 of Exhibit F, please.

Okay.

Does that depict the appearance of unit number 140 at the

beginning of the search activity on March 3rd?

Yes, it does.

And the photographs that follow number 33, specifically

10

34, 35 and 36, does that also show different views of the

11

interior of unit 140?

12

Yes, they do.

13

Was everything that was in unit 140 seized?

14

No.

15

Did you select what was to be seized from unit 140?

16

Yes, I did.

17

And, again, what you selected for seizure is reflected in

18

Exhibit B, the return on the warrant?

19

Yes, it is.

20

You mentioned the receipt, that would be normally

21

prepared at the time of the search, correct?

22

Yes.

23

And Exhibit A actually includes the receipt for the

24
25

Buckthorne residence search, correct?


A

Yes, it does.

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1
2

And please find Exhibit 42.

It may be a loose paper

there.

Okay.

And specifically the second page of Exhibit 42.

I have it.
Do you

have that, sir?

I do.

Is Exhibit 42 a copy of the receipt that was prepared at

the time of the search of unit 140 on March 3rd, 2006?

Yes, it is a copy.

10

And is this your handwriting on the second page of

11
12

Exhibit 42 or somebody else's?


A

Somebody else's.

We have a support employee who assisted

13

us, and he prepared the detail portion of the receipt.

14

prepared -- I finished it off with the time and unit number

15

and my signature.

16

So you actually signed this document?

17

Yes, I did.

18

And is a copy of this document left on site in unit 140

19

when you leave that area?

20

Yes.

21

Turn to photograph number 55 in Exhibit F.

22

Okay.

23

There's actually two pages depicted there, the right-hand

24
25

page, is that actually a photograph of Exhibit 42?


A

Yes, it is.

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


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1
2

And it also shows the lock that you presumably cut from

the door of that unit, correct?

Yes, it does.

And when you left, you secured it with another lock,

correct?

Yes, it is.
If you go to the next photograph, number 56, there's some

papers on the floor there.

Do you see that?

I do.

10

Does this general photograph depict what the unit looked

11

like when you left?

12

Yes, this would be an exit photo.

13

And are the papers on the floor of the unit, do those

14

papers include this receipt number 42, the second page of

15

Exhibit 42?

16
17
18
19

Yes, they're a distant copy showing where we placed the

copy and the receipt.


Q

So this is left to tell whoever comes there that this was

seized and these are the items that were seized?

20

Yes.

21

Looking at the second page of Exhibit 42, item 11, it

22

says one box containing 78 CDs.

Do you see that?

23

Yes, I do.

24

Then there's either a comma or a slash, and it shows that

25

there's a quantity of three-and-a-half-inch disks.

Is that

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how you read it?

Yes, that's what I read.

To me it is not clear, is it 32, the quantity, or 132?

From this copy, it appears to be 132, but I believe

that's a comma, and the page has been skewed a bit as this

document, when we prepare it, is a carbon, a five-part carbon

document.

8
9
10
11
12
13

So the notation 32 three-and-a-half-inch disks should be

on the line that's directly above it?


A

Yes, and you can see the lower number 12, 13, all kind of

missed the lines as well.


Q

So, in any event, this reflects a quantity of

three-and-a-half-inch disks seized, correct?

14

Yes, it does.

15

Are those commonly referred to as floppy disks?

16

Yes, commonly.

17

All right.

18

Was there a quantity of three-and-a-half-inch

floppy disks seized from unit 140 on March 3rd, 2006?

19

No.

20

Were any three-and-a-half-inch floppy disks seized from

21

unit 140 on March 3rd, 2006?

22

No.

23

Were any floppy disks whatsoever seized from

24
25

Mr. Montgomery's home or storage unit 140?


A

No.

I believe the only one that was seized was the one

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181

in the floppy drive of a tower unit.

answer.

3
4

But one would be the

Did you see a quantity of three-and-a-half-inch floppy

disks in storage unit 140?

Yes, I did.

Turn to photograph number 52 of Exhibit F, the storage

unit photos.

Are you there, sir?

Yes.

What does that photograph depict?

10

This depicts a number of items placed on the ground being

11
12
13

prepared to be seized.
Q

And keep your finger there with photo 52 and turn back to

photo 48, please.

14

Okay, I'm there.

15

What does photograph 48 depict?

16

Photo 48 depicts a box containing various CDs and other

17
18

storage media.
Q

Are the items that are laid out on the ground in

19

photograph 52 the items that were taken out of this box in

20

photo 48?

21

Yes, they are.

22

Was everything that was in the box in photo number 48

23

seized?

24

No, it was not.

25

Does photograph number 52 of Exhibit F depict a quantity

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1
2
3

of three-and-a-half-inch floppy disks?


A

Yes, it does, they're towards the top portion of the

picture.

Above the CD rows?

Yes.

And it's your testimony that those disks were not seized?

Correct.

Are there any other items in photograph number 52 which

9
10

were not seized?


A

Yes, the various items of storage media off to the right,

11

there's some backup tapes, some Jazz or Zip drives

12

interspersed on the outer part, those were not seized either.

13
14

So did you separate away or separate out the items that

you wanted to be seized?

15

Yes, I did.

16

And if you would look on photograph 53, what does that

17
18
19
20
21

depict?
A

Those would be the items from page -- photo 52 that were

actually seized, 78 CD disks.


Q

So of all of the items pictured on photograph 52 of

Exhibit F, only the items in photograph 53 were seized?

22

Correct.

23

Now, did you make a conscious decision not to seize the

24
25

other items pictured in photograph 52?


A

Yes, I did.

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1
2

Did you make a conscious decision not to seize the

three-and-a-half-inch floppy disks?

Yes, I did.

Why didn't you want to seize the three-and-a-half-inch

5
6

floppy disks?
A

Based on my investigation, I knew Mr. Montgomery had been

storing images that we were interested in on hard drives, CDs

or other high-capacity media, DV tapes.

During the course of the search, whoever searched

10

that box pulled those items out aside for me to look at, and

11

once I saw there were Jazz drives and three-and-a-half-inch

12

disks and these tapes, I made a phone call to Sloan Venables,

13

one of the employees at eTreppid, and inquired if they,

14

eTreppid, ever used Jazz drives or tape drives in their work,

15

and he told me no.

16

So at that time I didn't feel those were necessary

17

to seize as a part of my investigation, i.e., they most likely

18

wouldn't contain the data I was looking for.

19

The images that I was looking for were generally one

20

megabyte in size or better, and it would be difficult to store

21

on a three-and-a-half-inch floppy.

22

So based on that background information and your

23

conversation with Mr. Venables, you decided not to seize a

24

number of materials, but including these three-and-a-half-inch

25

disks?

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Correct.

Going back to Exhibit 42, page 2, that, does it not,

reflect the seizure of a quantity of three-and-a-half-inch

disks?

It does.

Is that an error or is there some other explanation for

7
8
9

the notation on the second page of Exhibit 42?


A

It would be an error.

I recall as we were processing the

scene that the employee was making a log, and this was going

10

on as items were being seized, and I made the decision to

11

remove those items.

12

I instructed him to remove those from the receipt,

13

and he started to by -- you note below line 11, you'll see 39

14

crossed out with some initials, and apparently he didn't cross

15

out the three-and-a-half-inch floppies as well.

16

And upon looking at the photo, there's not enough

17

detail there, but if one could analyze the actual CD photo, I

18

would imagine we would find 39 cartridges of the Jazz drives,

19

of the tapes that were not seized as well.

20

So it's an error, correct?

21

Yes, it's an error.

22

And did you correct that error when you prepared Exhibit

23

B, the return on the warrant to the Court?

24

I did.

25

And so Exhibit B makes no reference to these

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three-and-a-half-inch disks, does it?

No, it does not.

Prior to today, as you've been sitting in court listening

to the proceedings, has anyone suggested to you, or to anyone

else within the FBI to your knowledge, that

three-and-a-half-inch floppy disks were seized from

Mr. Montgomery and not returned to him?

No, they have not.

Turn to photograph number 38, please, in Exhibit F.

10

Okay.

11

And what does that photograph depict?

12

The photograph depicts a box with what appears to be

13
14

electronic parts labeled Dennis's Office.


Q

And does the appearance of that box in this photograph --

15

is that appearance the same as how it appeared when you first

16

located it in the storage unit?

17

Yes, it is.

18

And is the next photograph, number 39, a close-up of the

19

contents of that same box?

20

Yes, it is.

21

Was anything seized from that box?

22

From this photo, I believe the flash drive which is off

23

to the right, the SanDisk card, compact flash, and it appears

24

there's a hard drive enclosure to the upper left that was most

25

likely seized.

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So the answer is yes?

Yes, I'm sorry, yes.

Was everything in this box seized?

No.

You chose what to seize?

Yes, I did.

Go to picture number 41, please.

Is that the same box as

in 38 and 39, or a different box?

It's the same box.

10

So were things removed from the top of the box to expose

11

this other material?

12

I believe so.

13

And so what is pictured in photograph number 41 inside

14

the box?

15

Inside the box are various hard drives thrown in the box.

16

And you say thrown in the box, did there appear to be any

17

organizational method to how these items were placed in the

18

box?

19

No.

20

And does it appear here in this photograph number 41 as

21

it appeared when you first located it?

22

Yes.

23

Did you seize anything from this box?

24

Yes.

25

I'm sorry, I've already asked you that question --

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Yes.

-- so I won't ask it again.

Yes.

Go to photograph number 48, please.

photograph depict?

What does this

We're still in Exhibit F, photograph 48.

A box containing various CDs and other storage media.

And do the materials in this box, the materials that were

seized from this box, correspond to item 11 in Exhibit B, one

box containing 78 compact disks?

10

11

12
13
14
15
16

Yes, it does.
Was there anything else in this box besides 78 compact

disks?
A

Yes, there were other forms of media that we did not

seize.
Q

And does the photograph number 48 depict how that box

looked when you first located it?

17

Yes, it does.

18

Turn to Exhibit H, please.

This is a collection of paper

19

paginated at the bottom right-hand corner 001 through 098,

20

correct?

21

Yes.

22

What do these documents reflect?

23

These are an FD192 evidence control sheet.

What are they?


This is a

24

document we use to submit evidence into our evidence control

25

system.

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1
2

And so is there one evidence control package for each

individual item processed into evidence?

Yes, there is.

And does Exhibit H in sequence contain all of the

evidence control packages for every item that was seized from

Mr. Montgomery?

7
8
9
10

Without reviewing each one, I believe, yes, they do

contain all the items that were seized from Mr. Montgomery.
Q

Okay.

reflect.

Let's talk about what these individual sheets

Look at 001, the first page.

11

Okay.

12

What is this?

13

This is the computer-generated version of the FD192, and

How can we refer to it?

14

this contains certain data fields showing the character of the

15

case, the date the property was acquired, where the property

16

was acquired from, who acquired the property, who the case

17

agent is, the 1-B item, which is an internal number, the

18

description of the property, a bar code number which is

19

affixed to the property or its packaging, and the storage

20

location, and the date entered into the evidence system.

21
22
23
24
25

The bar code number, does that bar code number exist with

respect to an individual item until this process is completed?


A

By completed, you mean returned or disposed of?

Is

that -Q

No, let me rephrase it because it was unclear.

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1
2
3

Is this the mechanism for inputting a particular


seized item into the FBI evidence computer system?
A

The bar code -- the form is actually the input method.

The bar code is a tracking device once the property is in the

room.

6
7

The date entered, 3/2/06, do you see that on the

right-hand side?

Yes, I do.

What does that date indicate?

10

That date would indicate to me that's the date that the

11

data was entered into the computer, but maybe not necessarily

12

the date the item was placed into evidence.

13
14

So the date the property acquired is 3/1/06, that's the

date of the seizure, correct?

15

Yes.

16

And then the date entered, from your testimony, is the

17

date that the evidence technician enters it into the system?

18

Yes.

19

And then the second page, 002, has in big letters draft

20
21

across the front.


A

What is the second page?

The second page is a draft or a work sheet that the agent

22

submitting the evidence would complete for the evidence

23

control technician to fill out into the computer system.

24

Basically, page 2 generates page 1.

25

And then the third page, 003, at the top it says Chain of

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Custody FD192, and then there's a series of entries with

signatures, correct?

Correct.

And what does this page signify?

This page is the chain of custody which is established

once the evidence is received by the FBI, and every time it's

passed to a different individual, they're to sign a chain of

custody on the date and time they accept custody of the

evidence.

10
11

So this reflects the chain of custody for each individual

item?

12

Yes.

13

And then the next two pages, 4 and 5, is that also part

14

of this evidence control package for this particular item?

15

For this particular item, yes.

16

Is this a -- do we see this type of material or documents

17

for every item?

18

No.

19

What's peculiar about number 4 and 5, and why was it

20
21

generated?
A

This is a forensic work sheet prepared by Special Agent

22

Melissa McDonald from Immigration and Customs Enforcement when

23

she prepared the forensic copy of item 1 and her work sheet

24

while doing that.

25

So pages 1 through 5 of Exhibit H, is that one single

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evidence control package for bar code item ending 075, HP

Pavilion computer tower?

Yes, it is.

Okay.

Then let's look at one more that begins on 006.

006 is the computer-generated front page, correct?

Correct.

And this one is for six compact flash cards.

Yes, it is.

And it was entered on the same day as the one that we

10

just looked at?

11

Yes.

12

March 2nd?

13

Yes, March 2nd.

14

That's the day after the seizure?

15

Yes.

16

Then the second page is the draft work sheet that you

17

described?

18

Yes, it is.

19

Then the third page, which is 008, is the chain of

20

custody record for that particular item, right?

21

Yes, it is.

22

And then turning the page we come to the front page of

23

another item, correct?

24

Yes, we do.

25

So these three pages 6, 7 and 8 for the flash cards, are

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those three pages the typical evidence control package for a

given item?

Yes, it is.

And if we went through Exhibit H, would we see these

three pages over and over again repeated for each individual

item?

Yes, you would.

Let's go back and look at number 001 again for the HP

9
10

Pavilion, and particularly look at the third page which is


003, the chain of custody record.

11

I'm there.

12

Do you have that?

13

Yes.

14

And it shows that it was collected by Agent Bloomingdale

15

on the date of the seizure, March 1st.

16

correctly?

Am I reading that

17

Yes, you are.

18

And then the next entry is by a Mr. Albright dated

19

March 7th, 2006.

Am I reading that correct?

20

Yes, you are.

21

Where was the physical location of this seized item

22
23
24
25

between March 1st and March 7th?


A

In Jackie -- I'm sorry, Special Agent Bloomingdale's

possession in our office.


Q

Is it unusual for there to be a gap of time of, in this

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case, six days between the date of the seizure and the date

that an item is processed into the storage room?

Not at all.

It's not uncommon for an agent to submit the

evidence into the evidence control system and keep it with

them for review or analysis.

6
7

Well, is the reason why these items were seized to put

them into storage?

No.

Why were they seized?

10

To analyze them.

11

All right.

12
13

So does this gap of time reflect an agent's

review of the materials that were seized?


A

The review, the processing of the evidence, the

14

availability of the evidence technician to enter it into the

15

room, there's a lot of factors that could add to the day.

16

All right.

And then after March 7th of '06, the next

17

entry appears to be March 9th of '07, which is the date that

18

it was returned to Mr. Montgomery; is that correct?

19

Correct.

20

So did anybody access this particular item of seized

21

material between March 7th, 2006, and March 29th, 2007?

22

Not to my knowledge.

23

Well, is there anything reflected on this chain of

24

custody that would suggest that this seized item was handled

25

or viewed by anyone between those two dates?

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No.

You mentioned on page 4 and 5 of Exhibit H that a

forensic copy of this -- of the data on this computer tower

was created, correct?

Yes.

Was the device that was seized or the hard drive that was

imaged damaged in any way during that imaging process?

Not to my knowledge.

Was this computer device or any of its internal

10

components damaged in any way during the time it was in FBI

11

custody?

12

No.

13

Does the imaging process itself alter the data on the

14
15
16
17

hard drive?
A

The imaging process itself is designed to protect the

contents and not change them at all.


Q

Was this item, particular item that we've been looking at

18

on page 001 of Exhibit H, returned to Mr. Montgomery in the

19

same condition in which it was seized?

20

From the photographs I've seen, yes.

21

And looking at page 008 which is the chain of custody

22

record for the flash cards, do you have that, sir?

23

Yes, I do.

24

Now, that shows that those items, if I'm reading this

25

correctly, was processed into the storage room on March 3rd,

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2006, correct?

Yes.

Is there anything peculiar about one item being processed

in in two days and another item being processed into the

storage room in six days?

Not at all.

In this particular instance, the delay in

item 1 that we're talking about on page 001, the forensic copy

was being prepared, the items on page 006 were not processed

so they were documented and placed into evidence as soon as

10
11
12

possible.
Q

Let's look at one that has more signatures on it.

page 11 of Exhibit H.

13
14

Go to

Is this a chain of custody for the three computer


CDs that were seized?

15

Yes.

16

And it was seized -- these items were seized March 1st

17

and first placed into the evidence room on March 3rd.

18

read that correctly?

Do I

19

Yes, you do.

20

And then what happened after that in June of '06?

21

I took custody of the items for review.

22

And for what period of time did you have them out of the

23

evidence room in early June of '06?

24

It would appear 18 minutes.

25

And then did anything else happen to these materials, the

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three CDs, until March 29th of '07?

No.

Does Exhibit H reflect for each individual item of seized

material the storage and chain of custody for each and every

item seized from Mr. Montgomery's home and from

Mr. Montgomery's storage unit number 140?

8
9

Yes, it does.
MR. ADDINGTON:

I move to admit Exhibit H, if

not previously done.

10

THE COURT:

11

MS. GAROFALO:

12

MR. PEEK:

13

THE COURT:

14

(Government's Exhibit H received in


evidence.)
MR. ADDINGTON: Thank you, your Honor.

15
16
17

Any objection?
No objection.

No objection, your Honor.


All right.

H is admitted.

BY MR. ADDINGTON:
Q

Would any access by anyone into the evidence control room

18

at the FBI facility to view or handle these seized materials

19

be reflected on these chain of custody pages containing these

20

various signatures?

21

They would be reflected on the chain of custody.

22

During the time that the seized materials described in

23

Exhibit -- Exhibits A, B and C were in FBI custody following

24

the March 2006 seizures, did any person have access to any of

25

those materials other than FBI personnel or other federal law

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enforcement personnel?

No.

And as the case agent, would you be notified or otherwise

become aware of anyone seeking access to these materials?

me.

Yes, our office is very small and it would be known by

And even after you stopped being the case agent and that

responsibility was passed to Agent Thomas, would you likewise

be notified or be aware of anyone seeking access to these

10

seized materials?

11

Yes, I would.

12

And did anyone seek access to these materials other than

13

the persons reflected on these chain of custody pages?

14

No, they did not.

15

And did anyone gain access to any of these materials

16

other than FBI personnel or other federal law enforcement

17

personnel?

18

No, they did not.

19

Specifically, did Warren Trepp have access to any of

20

these seized materials at any time they were in FBI custody?

21

No, he did not.

22

Did anyone associated with Mr. Trepp or with eTreppid

23

Technologies have access to any of these seized materials

24

during the time they were in FBI custody?

25

No, they did not.

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During the time these materials were in FBI custody, were

any seized materials commingled with materials obtained from

any other source?

No, they were not.

During the time these materials were in FBI custody, was

any item damaged in any way?

No.

During the time these materials were in FBI custody, was

9
10

any data or image on any seized device or any seized medium


altered in any way?

11

No.

12

While these materials were in FBI custody, was any seized

13

data or image commingled with other data or other images

14

obtained from any other source?

15

No.

16

Did you from time to time, as reflected on page 11, seek

17

to review items that had been seized and had been processed

18

into the storage room?

19

Yes, I did.

20

Did you access materials from time to time in your

21

capacity as the case agent?

22

Yes, I did.

23

And did you access the materials for any reason other

24
25

than to advance the investigation you were conducting?


A

No, I did not.

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1
2

Did you access materials at the request of anyone other

than law enforcement personnel?

No, I did not.

Did you participate in any way in the return of property

5
6

to Mr. Montgomery on March 29th of '07?


A

At one point I was called into the room because

Mr. Montgomery alleged that one of the computers did not have

a hard drive in it, and I went into the room.

And was there a hard drive in the computer?

10

Yes, clearly visible.

11

And was that issue resolved to everyone's satisfaction as

12
13

least so far as you understood?


A

I believe so.

I left the room, got a screwdriver,

14

removed it from the base of the CPU, pulled it out, Mr. Thomas

15

wrote down the serial number, and I left the room.

16
17

But even before you removed it, was it clearly visible

within the computer tower?

18

Yes, it was.

19

And Mr. Montgomery, as you understand it, was suggesting

20
21
22
23

that there was no hard drive?


A

When I was called into the room, that was the allegation

that was made, that there was no hard drive in the unit.
Q

Other than that role that you have just described with

24

respect to that particular device, did you have any other role

25

in connection with the return of property to Mr. Montgomery?

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I did not.

Did you have any occasion that day to observe any part of

the return of property process?

Yes, I did.

What did you observe?

I observed numerous people coming into our office, most

of which I didn't know who they were.

Montgomery was and Eric Pulver, and throughout the day there

was a lot of traffic in and out of the lobby from this group,

10

I knew who Dennis

mostly Mr. Montgomery.

11

We have a door chime on the outer door that rings

12

every time it opens, and security monitors to watch, and I

13

could see Mr. Montgomery leaving the office and going down to

14

a vehicle downstairs.

15

At one point in the day I observed a vehicle which

16

appeared to be a limo, and an individual standing behind that

17

vehicle with a large video camera on his shoulder, and being

18

an FBI agent, it alerted me that -- you know, what's going on,

19

and when I determined it was associated with the Montgomery

20

party, I didn't pay much more attention to it.

21

So did you observe Mr. Montgomery just going out to the

22

parking lot to a vehicle one time or did that occur throughout

23

the day?

24
25

He went multiple times.

His party would leave the

interview room, go out into the hallway.

Mr. Montgomery

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himself would leave the room and then go down to this vehicle

that was parked outside of our office.

And would he be carrying devices and other materials with

him?

It appeared that he would -- you know, as the return

process continued, he would -- after they photographed it and

things, they would pick up a box and leave the office.

8
9

There is a video surveillance mechanism within the FBI

facility, correct?

10

Yes, there is.

11

And it runs generally continuously, correct?

12

Yes, it does.

13

From various areas and angles?

14

Yes.

15

And some of those camera angles, video images, were

16

reviewed by you and provided to the Montgomery parties,

17

correct?

18

Yes, they were.

19

Do those video images clearly show Mr. Montgomery going

20

out to his vehicle in the parking lot from time to time with

21

materials?

22
23

Yes, they do.


MR. ADDINGTON:

I have no other questions, your

24

Honor, but Ms. Garofalo and I did have a brief discussion with

25

respect to the currency that is pictured in Exhibit G,

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photograph 48.

The Court will recall that there was a quantity of

currency located in the safe in the closet in Mr. Montgomery's

home, and there's no contention that any of that currency was

seized or otherwise removed by FBI.

6
7

That's my understanding.

understanding, then I have some questions for Mr. West.

8
9

THE COURT:

All right.

Ms. Garofalo, is that

your understanding?

10

MS. GAROFALO:

11

THE COURT:

12

It is, your Honor.

All right, very good.

Thank you.

Ms. Garofalo, you may cross.

13
14

If that's not the

CROSS-EXAMINATION
BY MS. GAROFALO:

15

Good afternoon, Agent West.

16

Good afternoon.

17

Can I have you look back at Exhibit A in the small binder

18

given to you or provided by Mr. Addington.

19

Okay.

20

And Exhibit A includes the return -- the inventory

21

submitted to the Court with the return for the warrant?

22

Yes.

23

And the second page you've identified as the receipt

24

inventory left at the time of the search of Mr. Montgomery's

25

home, correct?

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Yes.

Okay.

And if you would turn to Exhibit B.

Again, the

first page is the return for the warrant executed at

Mr. Montgomery's storage facility; is that correct?

That is correct.

And as Mr. Addington noted, we don't have the inventory

receipt attached to that.

inventory receipt was submitted to the Court?

9
10
11
12

Do you know whether or not the

I believe it has been in numerous filings by Montgomery

and the U.S. Attorney's office.


Q

Let me be a little more specific.

Why isn't it attached

to Exhibit B to the return?

13

Because I'm not required to do so.

14

Is there any reason that you attached it to Exhibit A,

15

the return for the warrant executed at Mr. Montgomery's home,

16

and not Exhibit B, the return for the warrant executed at the

17

storage facility?

18

I did not attach it to the return to the Court.

19

Okay.

Is there any reason in these exhibits why one --

20

why the inventory is included in Exhibit A and not in Exhibit

21

B?

22

I didn't prepare the exhibits.

23

Okay.

24
25

To the best of your knowledge, does it have

anything to do with the discrepancy on the floppy drives?


A

Not to my knowledge.

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1
2

Now, we have looked at several photographs.

Just give me

a minute.

In Exhibit F which is in the other book provided by

Mr. Addington, if you will take a look at photograph number

52.

I'm there.

Okay.

And this is the photograph that you described

earlier which has CDs, floppy disks and other items taken from

the box found at the storage locker, correct?

10

Yes, Jazz drives and other tape type media.

11

Okay.

12

And it was your testimony that the Jazz drives

were not seized, correct?

13

Correct.

14

And it has been your testimony that the floppy disks were

15

also not seized, correct?

16

Correct.

17

Why is it that the Jazz drives are not listed on the

18

receipt, the inventory receipt, while the floppy disks are?

19

Can you explain that.

20

I think, as I explained before, on the property receipt,

21

on your Exhibit 42, it appears that there's a number 39, and I

22

would imagine if we looked at the CD with more detailed

23

photographs, we might find 39 other items, Jazz drives, tape

24

drives, and that was at a point where I decided we would not

25

take those items.

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1
2

Okay.

And if I could just ask you to look at photograph

number 48 in Exhibit G.

Yes.

Okay.

And this is a photograph of items at

Mr. Montgomery's home.

West?

No, I don't.

8
9

Do you recognize it as such, Agent

MR. ADDINGTON:

Objection, your Honor, this is

from the storage unit, not --

10

MS. GAROFALO:

11

MR. ADDINGTON:

12

MS. GAROFALO:

13

MR. ADDINGTON:

14

sorry.

15

BY MS. GAROFALO:

I'm sorry.
Item number 48?
Exhibit G.
Exhibit G?

I misheard, I'm

16

I'm sorry.

17

Let me check.

18

Forty-eight.

19

Yes, I'm there.

20

And I don't know if you heard Agent Thomas's testimony,

21

What photo are we going to?

but these are items that --

22
23

Do you have Exhibit G in front of you?

THE COURT:

Excuse me.

Turn that off.

Whose

cell phone?

24

MS. GAROFALO:

25

THE COURT:

It's mine, your Honor.

All right.

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MS. GAROFALO:

We have two family members in the

hospital, and I forgot to turn it off.

THE COURT:

please.

BY MS. GAROFALO:

All right.

Go ahead.

Turn it off,

And Agent West has testified that other than the CDs in

this picture, none of the other items depicted here were

actually seized.

Is that consistent with your understanding?

I have not testified about that yet.

10

Yes, well, I'm asking you if that's consistent with your

11

understanding.

12

You just said Agent West has testified --

13

I'm sorry, I meant Agent Thomas.

14

Okay.

15

Is this consistent with your understanding that of the

Thank you.

And what was the question?

16

items depicted in this picture, credit cards, passports, cash,

17

that the only items actually seized were the CDs?

18

Yes, from my recollection, in this photograph, the only

19

items seized were the compact disks.

20

they're the same form factor.

21

Okay.

They may be DVDs, but

And is it not true that on the receipt for the

22

items taken from Mr. Montgomery's home, the only items

23

depicted in this picture reflected on the receipt are those

24

CDs that were actually seized?

25

I think I just answered that, yes.

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Okay.

The only items in this photographs seized were the CDs.

But they're the only items that show on the property

receipt, isn't that correct?

No, there's many items on the property receipt.

In this picture, the only items in this picture shown on

the property receipt for the Buckthorne Lane address are the

CDs; is that correct?

Correct.

10

Okay.

And so it's your testimony that of the items that

11

were reviewed or looked at at either the storage unit or the

12

Buckthorne Lane address, only those items actually taken

13

showed up on the property receipt with the exception of the 32

14

floppy drives; is that correct?

15

I'm sorry, you're kind of --

16

Okay.

17

Large question there, if you could condense it.

18

There's lots stuff that wasn't actually seized that you

19

pulled out of boxes that you've testified to, items shown in

20

photo number 48 in Exhibit G, items shown on photograph number

21

52 in Exhibit F, lots of things that you didn't take from the

22

sites.

23

We took a lot of photographs of the residence and the

24

things that we were interested in, but ultimately did not

25

seize everything that we took a photograph of.

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208

1
2

Other than the floppy disks, is there anything else that

wasn't seized that ended up on the property inventories?

Any item that wasn't seized --

Correct.

-- did not end up on the inventory, correct.

Okay.

I believe from listening to Mr. Thomas's testimony,

So just those 32.

there's a discrepancy in the number of CDs, but no items that

were seized did not appear on the list.

10
11

Everything that we

took appears on the return to the court.


Q

Okay.

And everything you didn't take, other than the

12

floppy -- the 32 floppies, doesn't appear on those -- on those

13

receipts; is that correct?

14

I'm losing you.

15

Okay.

16

Let me --

17

-- floppies, isn't on the property receipts.

18

What we took is on the property receipts except for the

You didn't take, other than the --

19

error on Exhibit 42 where it shows 32 floppy disks that we did

20

not take.

21

Okay.

So those are the only things you didn't take that

22

ended up on either the return inventories or the property

23

receipts, right?

24

I believe so, if I understand your question correctly.

25

And you specifically recall, sitting here today, that

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209

those floppies were not taken, is that your testimony?

They were not taken.

So there's a mistake in the property receipt; is that

4
5
6

correct?
A

Yes, on the receipt that we left at the location there is

a mistake.

Okay.

We're human.

I would hope so.

10
11

And that happens from time to time, doesn't it?

And sometimes things that are taken don't appear on


the lists; is that correct?

12

I would hope not.

13

Does it happen?

14

I imagine it has.

I think we've -- you've explored that

15

on item number 5 that we counted 15 compact disks and we

16

actually took 16.

17

There's a lot going on during a search, isn't there?

18

Especially when you're dealing with an obnoxious

19

individual out in front of the house.

20

Well, I'm sure we may have a dispute about that.

21

Well, we can.

22

But in any event, there were a lot of agents, there were

23

a lot of people, there was a lot going on at both the storage

24

unit and house during the searches; is that correct?

25

Yes, and we bring a lot of people for two reasons, safety

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210

and to execute the search as quickly as possible so we're not

occupying someone's house for hours or days.

3
4
5
6
7

Fair enough.

But mistakes do get made on the property

receipts, don't they?


A

I believe that you've illustrated that there's a mistake

on both of these property receipts.


Q

Now, at some point in time you learned that there was no

classified information taken by Mr. Montgomery from eTreppid;

is that correct?

10

I learned that the information that the Air Force told me

11

that was classified was not classified.

12

Mr. Montgomery took other classified information.

13
14

Okay.

And you testified about that during the hearings

on the Rule 41(g) motion.

Do you recall that?

15

I recall it was discussed.

16

Okay.

17

I don't know if

I don't recall what I said.

Do you recall the date on which you testified that

you learned that there was no classified material?

18

Do I recall the day that I testified?

19

No, the date, that you testified that as of a particular

20

date you knew there was no classified material.

21

No, I don't recall that exact date, no.

22

Okay.

23
24
25

You first testified on June 29th, 2006.

Do you

recall that?
A

I believe there is a date in June, there was a date in

July, August and September.

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Okay.

And you testified specifically that in May, on

May 23rd, by May 23rd, you had learned, based on a review of

the executive order that covers classified material, that

there was no classified material in Mr. Montgomery's

possession.

6
7

I'd like to see the transcript to see what I said, but

you're mischaracterizing what the situation is.

MS. GAROFALO:

THE COURT:

10
11
12

May I approach, your Honor?

You may.

THE WITNESS:

Do you have a page?

BY MS. GAROFALO:
Q

Okay.

And if you open up the transcript, the binder I've

13

just given you, to page 96, between page 96 and approximately

14

98, there is a discussion by you of when and how you learned

15

that Mr. Montgomery did not have classified material.

16
17
18
19

Do you want to take a minute to look at that, Agent


West?
A

Sure.
MR. ADDINGTON:

Your Honor, as Agent West is

20

reviewing that matter, I would like to interpose an objection

21

that this appears to be beyond the scope of the limited

22

inquiry for this hearing.

23

MS. GAROFALO:

I will tie it in, your Honor.

24

It's foundational to a series of questions as to why and what

25

information he took out of the evidence control room

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212

subsequent to the time he learned there was no classified

information.

THE COURT:

what was seized and what was returned?

5
6

MS. GAROFALO:

It's a chain of custody issue,

your Honor.

THE COURT:

MR. PEEK:

Well, what's that got to do with

All right.
Your Honor, I would like to join in

that objection because, as we know, Mr. Montgomery has

10

testified himself that there was classified information that

11

was taken.

12

Ms. Klar's statement that 68 percent was classified.

13

We have Mr. Montgomery's pleadings as well as

THE COURT:

All right.

14

It's overruled at this time.

15

BY MS. GAROFALO:

16

Okay.

Your objection is noted.

Go ahead.

Agent West, does the transcript refresh your

17

recollection as to when you learned that Mr. Montgomery did

18

not have classified information?

19

I'd like to go one page past that.

My experience with

20

Mr. Montgomery's counsel is they misrepresent things so I'd

21

like to read both before and after.

22

I believe the date is -- was March 23rd, I believe,

23

of '06, and I think you've slightly mischaracterized the

24

executive order issue.

25

The letter that I received was from the Air Force

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notifying me that their original classification officer had

determined that the information that we were originally told

was secret was not secret.

Fair enough, sir.

And the executive order -- if you would like me to

6
7

explain, that I can, but -Q

Unless you feel it necessary, Agent West, I don't think

that kind of detail is required.

not by May 23rd you understood that there was no classified

10

I'm just asking whether or

information in the materials you seized from Mr. Montgomery.

11

Yes.

12

And you also testified in connection with the Rule 41(g)

13
14
15

hearing on August 17th, 2006.


A

I believe there was a date in August as well.

MS. GAROFALO:

17

THE COURT:

19

I don't

recall the specific testimony.

16

18

Do you recall that testimony?

May I approach, your Honor?

You may.

BY MS. GAROFALO:
Q

At the August 17th hearing you testified that you

20

reviewed some of the materials taken from Mr. Montgomery once

21

shortly after the search warrants were executed.

22

recall that testimony?

23

Could you direct me to those pages?

24

I can, page 16.

25

Do you have a paragraph or --

Do you

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I can give you lines, approximately 6 through 12.

Okay.

And is that correct?

4
5
6
7

I don't want to misstate your

testimony.
A

Thank you.

That is correct, I did testify that I looked

at one or a couple of the DV tapes.


Q

And that was not accurate.

You did look at material

seized from Mr. Montgomery on more than one occasion; isn't

that correct?

10

I believe the context of this was specifically the

11

computers and computer files, and in this context I did not --

12

I believe I testified that I did not look at any storage media

13

other than the DV tapes.

14

bank statements, the "my husband" letter, the Rolodex and

15

things like that, I did review those.

16
17
18
19

I did review other material, the

Just because I may not understand you perfectly well,

what do you consider storage media?


A

Well, I'll probably have to explain a little bit.


At the search warrant scene, Mr. Montgomery, in his

20

opposition to the search warrant, claimed that there was

21

attorney-client privileged information on the computer.

22

I asked him where so we wouldn't violate any attorney-client

23

privilege, he said everywhere.

When

24

So, out of an abundance of caution, I did not review

25

any magnetic media that may contain -- computer media that may

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1
2

contain attorney-client privileged material.


Q

Again, forgive me for being simplistic, but when you say

you didn't review any other computer media, specifically what

kinds of media did you review and what kinds didn't you?

5
6
7

Did you review CDs, did you review hard drives?

Can

you characterize it the way I'm asking you for?


A

Sure, I'll simplify it for you.

I consider computer media to be floppy drives, thumb

drives, CDs, DVDs, anything that a computer would be necessary

10

to access.

11

attorney-client privileged material on.

12
13
14
15

That is what Mr. Montgomery claimed he had

I looked at other items, bank statements, the DV


tapes, that did not fall into that category.
Q

In the big binder, can I ask you to look at Exhibit 25.

Do you see it, the big black one?

16

Yes, I have Exhibit 25.

17

And what is Exhibit 25, Agent West?

18

The description says it's three DVDs and two compact

19
20
21

disks.
Q

If you go to the third page of Exhibit 25, which is the

chain of custody FD192 form, do you see that, Agent West?

22

Yes, I do.

23

Okay.

24
25

It indicates that you took custody of these items

on March 6th, 2006, at 9:00 a.m.


A

Do you see that?

Yes, on March 6th at 9:00 a.m., yes, I do.

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1
2

Okay.

And returned them into storage the following day

at 1:33 p.m.

Do you see that?

Yes, I do.

Did you review those items during that period?

I believe that was the time period I prepared the return

6
7

to the court and reviewed the exterior of those items.


Q

If you go a little bit further down the page, it reflects

that you also took custody of these items on 6/1/2006.

see that, at 2:53 p.m.

10
11

I do.

Do you

That is on June 6th where I had them for seven

minutes.

12

That's on June 1st.

13

I'm sorry, June 1st.

14

You had them for a short amount of time.

15

Seven minutes, yes.

16

What was the purpose of checking those out?

17

There came a point in my investigation -- as the 41(g)

18

hearing continued, so did my investigation into the theft of

19

intellectual property and the possession of national defense

20

information.

21

So I photographed or Xeroxed the labels of these

22

disks for my purposes down the road if I needed to review

23

them.

24

I would have those for my review.

25

Because I don't have free access to the evidence room,

Where are those photographs?

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1
2
3
4

They're probably if my case file.

They're Xerox copies,

they're not photographs.


Q

Anybody ask you to take these out and make those

photographs?

No, that's my decision.

Did you look at the materials on the CDs?

No, I did not.

I'm going to ask you to turn to Exhibit 26, the next

9
10

exhibit, and this is the FD192 for one yellow and gray case
containing eTreppid disks.

11

Yes, I do.

12

Okay.

Do you see that, Agent West?

And if you go to -- again to the third page, we

13

can see that these items were also checked out on 3/6/06 at

14

9:00 a.m.

15
16

Yes.

Do you see that, Agent West?


They weren't checked out, they were -- I received

them from Mark Thomas on that day.

17

Okay.

18

Yes.

19

And where were they held -- where were they maintained

20

And you held them overnight, correct?

overnight?

21

At my desk.

22

Okay.

23

FBI employees.

Anybody else have access to them?


We have a secured office.

The public

24

does not have access to our space, but we have a secured

25

facility.

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Okay.

And did you review these disks?

On that date only to the point to prepare the return for

the court, and then I later took them out to make Xerox copies

of the labels.

Okay.

Yes, for four minutes.

And did you access them at that point -- well, a little

8
9

And that would be on 6/1/06, correct?

longer than four minutes, between 4:15 and 4:40, correct?


A

No, if you go back up one, you see I took them out at

10

2:56 and then put them back in at 3:00 p.m., and then, for

11

whatever reason, I didn't -- I needed them again, I didn't

12

copy the labels properly or something came up where I needed

13

them again, for 30 -- 25 minutes.

14

But you didn't access the disks, is that your testimony?

15

No, I did not.

16

Okay.

17

Okay.

18

By the way, by 6/1/2006, you already knew that there was

19

Now, if you would go back to Exhibit 3.

no classified material in these CDs, correct?

20

Yes.

21

So of what interest were the CDs if not to look for

22
23
24
25

classified or to hold classified material?


A

Well, I was still actively pursuing the theft of

intellectual property rights case.


There was conversations with me and the

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U.S. Attorney's Office to charge Mr. Montgomery with

possession of national defense information so my investigation

continued.

Okay.

I'm just a little confused.


At that point in time, you were just looking for

information that might have been misappropriated from

eTreppid; isn't that correct?

8
9
10
11
12
13
14

No, I believe the statute allows for -- or if someone who

is not authorized to possess national defense information,


that's actually a violation of Title 18.
Q

Did you ever find any evidence that Mr. Montgomery had

national defense information he was not entitled to have?


A

Well, I believe the Predator is a national weapon

currently used in an active war, and so that may qualify.

15
16
17

We didn't get to that point in my investigation or


through an analysis of the various agencies.
Q

But you never had -- you never concluded that

18

Mr. Montgomery had national defense information he was not

19

entitled to have; is that correct?

20

Again, my investigation was continuing, and I didn't look

21

at the magnetic media to respect his accusation of

22

attorney-client privilege, and we were going through the 41(g)

23

hearings at the time.

24
25

Okay.

I asked you to look at Exhibit 3 which is the

FD192 for three computer CDs.

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Yes.

Okay.

You took those out, if you'd look at the third

page on 6/1/06, at 2:42 p.m. --

Yes.

-- returned it at 3:00.

Again, to Xerox the labels.

And tell me again why you were Xeroxing the labels on

8
9

What was the purpose for that?

these particular CDs?


A

Well, I -- the majority of the CDs had some markings on

10

the label, they were either eTreppid copyrighted labels,

11

handwritten labels, so as a part of my investigation, just as

12

a method to pursue whatever I might find on those labels, I

13

wanted to know in detail what was there, and to photograph

14

them was time consuming, so I just took them out of the

15

evidence room, Xeroxed them and placed them with the evidence

16

control sheet that I had, my working copy, so I could refer to

17

them when necessary.

18
19
20

Isn't it true you already had the photographs that were

taken at the time of the search?


A

I did, but they weren't particularly detailed.

Some of

21

them were from a distance.

22

photo number 48, and you see the first two labels, but you

23

really can't see in detail what the smaller writing reads.

24
25

I think we referred to Buckthorne

Did you return these photographs, by the way, to

Mr. Montgomery in March of 2007 when items taken in the search

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were returned?

Did I return these photos to him?

Correct.

I wasn't involved in that portion of the case.

Did you understand that all the materials were to be

6
7

returned to Mr. Montgomery?


A

I would not have any involvement as I was not the case

agent any longer, and these photographs were submitted to the

court during the 41(g) motion as well.

10

If I could have you look at Exhibit 9.

11

I'm there.

12

This is the FD192 for paperwork, shredded paper, Rolodex,

13

Post-It notes, check stubs and so forth.

Do you see that?

14

Yes.

15

And if you go to page 3 of this document, these items

16

were -- you took them into custody on March 31st, 2006, and

17

held them until April 4th, 2006.

18

Yes.

19

And you reviewed this material?

20

Yes, I did.

21

And what was the purpose for reviewing the material?

22

Well, my recollection is that the letter on paper was a

23

lengthy letter, everything titled "My Husband" explaining some

24

of Mr. -- somebody's activities related to the case.

25

to it as the "my husband" letter.

I refer

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Scratch paper contained Paul Harrelson's phone

number, the Rolodex, various numbers, looked through those for

anything of interest, the check stubs, phone numbers, looking

for anything of investigative value.

5
6

And did you expect to find any national defense

information in this material?

No, but I might find who he was going to sell it to.

Who he was going to tell it to, and you have information

9
10
11
12
13

he was going to tell it to someone?


A

I wasn't sure why anybody would take something like that

other than to use it or to provide it to someone else so -Q

This was information that was of interest to Mr. Trepp,

wasn't it?

14

It was of interest to me.

15

Did you discuss any of the materials that you reviewed

16

while they were in your custody with Mr. Trepp or anyone

17

affiliated with Mr. Trepp?

18

No -- well, the only items that Mr. Trepp became aware of

19

was there was a point after the storage unit search where I

20

found 11 hard drives in original packaging, and as an effort

21

in my investigation to show that Mr. Montgomery stole property

22

from eTreppid, I provided Mr. Trepp a list of hard drives to

23

try to determine ownership, if he could provide me receipts

24

showing if eTreppid bought those hard drives.

25

And did he provide you such receipts?

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He did.

And did you conclude that those 11 hard drives were

3
4

stolen from eTreppid?


A

I concluded, based on the information that Mr. Trepp

provided me, or his employees, that eTreppid had documentation

that they purchased two of those 11 hard drives, and

eventually I was able to find the box they were shipped in.

8
9
10

And did you share any other information relating to your

review of bank statements and financial documents with


Mr. Trepp?

11

No.

12

Anybody affiliated with Mr. Trepp?

13

No.

14

Did you have any conversations whatsoever with Mr. Trepp

15

or anyone affiliated with Mr. Trepp while these items were in

16

FBI custody as to what you should be looking for on CDs, hard

17

drives and so forth?

18

No.

19

Okay.

20

going to look at 23 through 29.

21
22

THE COURT:

25

Ms. Garofalo, just to note that it

is 4:25.

23
24

If you would take a look at Exhibits -- we're

MS. GAROFALO:

I am just about finished, your

Honor.
THE COURT:

All right, very good.

And please

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say again what exhibit numbers you're --

MS. GAROFALO:

THE COURT:

4
5

Twenty-three through 29.

Thank you.

BY MS. GAROFALO:
Q

These are a group of FD192s which reflect that you took

custody of a number of items, including DVDs, CDs and so

forth, for a little more than a 24-hour period between

March 6th and March 7th.

Do you see that?

I do.

10

Is it your testimony that you didn't access any of the

11

CDs?

12

I did not access any of the CDs.

13

What did you do with the materials in the 24 or so hours

14
15

that you had them?


A

I don't particularly recall.

I may have photographed the

16

label again on the CDs.

17

conducted a review of what was on the tape and made it a --

18

made a print of the video that was on there.

19
20

I know on the -- on item number 24, I

That was discussed earlier as an item that was


returned to Mr. Montgomery along with the other evidence.

21

So 24 I made a print of, just a sample one, one copy

22

of what was on that tape, and there were other DV tapes that I

23

printed copies of.

24
25

I don't know which exhibits those are.

So you didn't access any of the CDs or the hard drives

during the period they were in FBI custody, correct?

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No.

Okay.

3
4
5

Correct.
How do you know that none of the CDs were damaged

when either taken in the search or while in FBI custody?


A

Well, given how they were stored, there's probably a high

likelihood that they were damaged prior to our receiving them.

You don't know, do you --

I don't.

-- Agent West?

But I can tell you, and based on the photographs, we

10
11
12

treated those better than Mr. Montgomery did.


Q

Well, with all due respect, Agent West, that's

speculation.

13

But you have no way of knowing if any information on

14

the CDs was damaged during the search, during the removal,

15

during the storage process, or during your Xeroxing of the

16

faces, do you?

17

Well, I happen to be somewhat familiar with compact disk

18

media, and Xeroxing it does not damage it.

19

climate control environment, throwing it in a box probably

20

would damage it.

21

Storing it in a no

Agent West, is it fair to say that because you didn't

22

review or access any of the information on the CDs, you don't

23

know if they were readable when you took them, and you don't

24

know if they were readable when you gave them back, do you?

25

I think it's fair to say that the FBI respected

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Mr. Montgomery's attorney-client privilege accusation, and the

fact that there was a hearing going on, that we did not look

at any information until the court gave us permission to.

we would not have any way to determine if the information was

damaged when we received it at all.

But I can tell you the way the FBI handled the

material was able to maintain it safely in a controlled

environment, and it was provided back to him in the same

condition we received it.

10
11
12

So

You have no real way to know who handled it in storage or

whether or not that's correct, do you, Agent West?


A

Well, I can tell you that we don't throw them around the

13

office, that we don't stand on them, and that may be the way

14

that they could get damaged, but we didn't do any of that.

15
16

With respect to the hard drives, have you never

experienced damaging a hard drive in copying it?

17

I have not, no.

18

Never.

19

No.

Usually they fail in operation, they fail when you

20

drop them, they fail when you store them in uncontrolled

21

environments, that's how they get damaged.

22

You have no idea whether the two hard drives that were

23

copied were damaged during the copying because you didn't

24

review them, isn't that correct?

25

Well, I think you could use the forensic copy that we

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1
2

provided you as a method to see if they were damaged.


Q

But you don't know what was damaged.

You're testifying

that you don't know what was on any of the electronic media,

you don't know what you seized, and you don't know what you

gave it back or the condition it was in either at the time of

seizure or the time of return; is that correct?

That's correct, we did not analyze the data.

MS. GAROFALO:

THE COURT:

I have no further questions.

Thank you.

10

MR. ADDINGTON:

11

THE COURT:

12

MR. ADDINGTON:

Anything on redirect?

No, your Honor, thank you.

Any other witnesses, Mr. Addington?


No, your Honor, just to confirm

13

that Exhibits A through H have been admitted, if I may make

14

that inquiry.

15

THE CLERK:

Yes.

16

THE COURT:

Any objection?

17

MS. GAROFALO:

18

THE COURT:

19

They've already been admitted.

Thank you, Agent West.

You may step

down.

20

(The witness was excused.)

21

THE COURT:

All right, Ms. Garofalo, as you and

22

Mr. Addington indicated at the beginning of the hearing this

23

morning, it was your agreement that Mr. Addington would

24

proceed first.

25

Is there anything that you would like to add by way

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of testimony or evidence that has not been presented?

MS. GAROFALO:

THE COURT:

No, your Honor.

All right.

Well, the motion of the

Montgomery parties, as counsel are aware, concerned the issue

raised, as indicated in Mr. Montgomery's declaration and in

the papers that his counsel filed, indicated in paragraph 8,

I'm looking at docket 466, that,

8
9

"At least one device that he kept over time


was seized and never returned to me by the FBI."

10
11
12

It appears that's no longer an issue unless I missed


something.
Paragraph 9 is the assertion in his declaration that

13

the FBI damaged and, in some cases, destroyed his property as

14

they conducted their search and seizure, and my assumption is

15

that counsel are standing on the evidence that's been

16

presented to the Court on that issue.

17
18

Paragraph 10 indicates,
"On information and belief, it appears clear

19

that the FBI has taken some of my intellectual

20

property and to this day has never returned it as

21

demonstrated by discrepancies between the FBI

22

inventory seizure list and return list."

23
24
25

It appears to the Court that the parties have


presented evidence on that topic.
So I think what I'll do is, given the lateness of

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the hour, go ahead and allow counsel for the United States and

counsel for Mr. Montgomery to submit a posthearing brief

concerning what your respective positions are regarding what

issues remain.

I'm not sure, really, given the evidence today, what

issues remain.

testimony elicited today, continues to take the position that

items seized were somehow damaged during the time in which the

FBI had custody of the seized items.

10

It may be that Mr. Montgomery, based on the

So, counsel, today is the 5th.

I will ask that you

11

file posttrial briefs by Friday -- well, I'll give you until

12

Monday, September 22nd, 2008, concerning this particular

13

issue.

14

Are there any other matters, counsel?

15

MR. ADDINGTON:

Your Honor, this posttrial

16

brief, does the Court wish them to be in the form of findings

17

of fact and conclusions, or just a narrative brief, or do you

18

leave that up to us?

19
20

THE COURT:

You can go ahead and just prepare a

posttrial narrative brief, that's sufficient.

21

MR. ADDINGTON:

22

THE COURT:

23

Thank you.

All right.

Anything further,

counsel?

24

MS. GAROFALO:

25

MR. ADDINGTON:

No, your Honor.


No, your Honor, thank you.

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230

MR. PEEK:

THE COURT:

3
4

No, your Honor.


All right.

Thank you all very much.

Court is adjourned.
-o0o-

5
6
7
8
9

I certify that the foregoing is a correct


transcript from the record of proceedings
in the above-entitled matter.
/s/Margaret E. Griener
09/18/2008
Margaret E. Griener, CCR #3, RDR
Official Reporter

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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231

I N D E X

2
3
4
5

GOVERNMENT'S WITNESSES:

PAGE:

DEVORE, Gerald W.
Direct Examination by Mr. Addington
Cross-examination by Ms. Garofalo
Redirect Examination by Mr. Addington

6
21
34

THOMAS, Mark A.
Direct Examination by Mr. Addington
Cross-Examination by Ms. Garofalo
Redirect Examination by Mr. Addington
Recross-Examination by Mr. Addington
Cross-Examination by Mr. Peek

37
93
143
165
171

WEST, Michael
Direct Examination by Mr. Addington
Cross-Examination by Ms. Garofalo

172
202

6
7
8
9
10
11
12
13
14
15
16
17
18

GOVERNMENT'S EXHIBITS:
A - Buckthorn Property Seized List
B - Storage Units Property Seized List
C - Property Returned List
D - Prescription Drug Return List
E - Photographs
F - Photographs
G - Photographs
H - FD192s

ID

EVIDENCE
48
48
40
10
16
49
50
196

19
20
21
22

DEFENDANT'S EXHIBITS:
11 through 19 - Evidence Control Room Documents
23 through 30 - Evidence Control Room Documents
41 - Photographs
24
42 - Inventory of Seized Items
95

171
171
170
180

23
24
25

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER


(775) 329-9980