VOL.

II UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------UNITED STATES OF AMERICA, -vsSHANE BUCZEK, Defendant. ------------------------------------09-CR-121S

Proceedings held before the Honorable William M. Skretny, Part IV, U.S. Courthouse, 68 Court Street, Buffalo, New York on March 3, 2010. APPEARANCES: MARY CATHERINE BAUMGARTEN, Assistant United States Attorney, Appearing for the United States. SHANE BUCZEK, Appearing Pro Se. BRIAN COMERFORD, Assistant Federal Public Defender, Appearing as Standby Counsel for Defendant. Michelle L. McLaughlin, RPR, Official Reporter, U.S.D.C. W.D.N.Y. (716)332-3560

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 through 16, 27 through 29, 30, 40, 41 34, 35, 36 20, 20A, 21A, 21B, 24, 24A 21, 21A, 21B 15 15A, 25, 25A 31 22, 22A, 23, 23B 18 48 51 66 68 71 73 75 79 123 GOVERNMENT EXHIBITS 1 2 through 10 EVD. 41 45 ERIC J. SCHUMACKER Direct Examination by Ms. Baumgarten 118 WITNESS JAMES SAUER Direct Examination by Ms. Baumgarten Cross-Examination by Mr. Buczek JOSEPH L. KELLY Direct Examination by Ms. Baumgarten Cross-Examination by Mr. Buczek Redirect Examination by Ms. Baumgarten I N D E X PAGE

36 81

85 93 114

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Jury not present in the courtroom.) THE CLERK: Criminal case 09-121S, United

States of America versus Shane Buczek. THE COURT: Mr. Buczek are here. Okay. The attorneys and I

We're ready to go forward. I'll have them

believe that the jury is here. called in in short order.

The government's ready to proceed? MS. BAUMGARTEN: THE COURT: ready to go? MR. BUCZEK: Judge, I do want to just make Yesterday afternoon I We are, your Honor. Mr. Buczek, you're

All right.

a record today real briefly.

filed two documents, and I just want to put it on the record -- I think I already know what you're going to say -- but I just want to have it on the record. I put a Notice of Mistake and Expression

of Trust in front of the Court filed March 2nd. THE COURT: And a Notice of Conditional

Acceptance and Witness List for Shane C. Buczek. MR. BUCZEK: Right. And I just wanted

this put on the record and just make sure that you had an opportunity to review the documents, and -not that it's an argument or anything. I believe

there's been no controversy, there's been a

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer. THE COURT: for the record. MS. BAUMGARTEN: Judge, with respect to That's your answer, it's noted reviewed. in my view. mistake, and as you can see right there. I don't

want to waste too much of your time on that, and I just -THE COURT: Yeah, you know, they've been

They're more redemption theory documents Neither -- and from reviewing them,

neither requests any form of relief, so I'll note that they were filed, they've been reviewed, and we'll proceed on that basis. MR. BUCZEK: And one last thing too is

that I need to know if everyone in this courtroom is here in their public capacity or private capacity as a living, breathing man or woman. I

know it's strange, but I just want to put it on the record. THE COURT: All right. It's noted for

the -- for the record.

Thank you.

Darryl, would you bring the jury in please? MR. BUCZEK: Judge, I didn't get an

the witnesses -- potential witnesses in the jury area -- or in the gallery, the government moves to

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sequester those, Judge. THE COURT: You want to sequester all

those witnesses that are out in the gallery right now? MS. BAUMGARTEN: No, but we would like it I realize

to be in effect in the future, Judge.

there aren't any right now, except for the case agent. THE COURT: So you want them excluded? Please. If they are going

MS. BAUMGARTEN: THE COURT:

All right.

to be called on the direct case of the respective parties, your case included. MS. BAUMGARTEN: Yes, your Honor. I have

not received notification, even though there was what was fashioned as a witness list, any witnesses that would be called by the defense should they choose to put a case on, your Honor. THE COURT: Okay. My policy in all cases

is to grant the request for exclusion of witnesses who will be called to testify on the direct case. As to those witnesses that may, if you will, straggle in, and then it becomes determined later on that they're necessary for rebuttal purposes or whatever, I will discuss whether or not to allow

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 way. THE COURT: Okay, good. Thank you. those witnesses to testify at the appropriate time. MS. BAUMGARTEN: THE COURT: Okay. Judge, I should just Thank you, Judge.

MR. COMERFORD:

mention we're still working on who Mr. Buczek would like to call as witnesses. His father, Dan Buczek,

who was in here yesterday, but we've discussed that he shouldn't be in here if Mr. Buczek intends on calling him as a witness, so he's aware of that. THE COURT: Mr. Comerford. Okay. Thank you,

The record will so reflect that. Judge, I do have

MR. BUCZEK:

eyewitnesses, but I'm going to basically rest until the government's done. THE COURT: MR. BUCZEK: THE COURT: And my opening statement.

Okay. Thank you. All right. You're welcome.

Darryl, the jury please. COURT SECURITY OFFICER: They're on their

(Jury seated.) THE COURT: ladies and gentlemen. THE JURY: Good afternoon. All right. Good afternoon,

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Not a bad job, start at

2:00 o'clock in the afternoon, work till 5:00 o'clock. Not too bad. Good to see everybody.

Keep in mind this is an important case, and we're back on in the case of United States of America versus Shane Buczek. And this is a criminal case.

You were sworn yesterday which was the official commencement of the trial. You did hear the

opening statement of the prosecutor, Mary Baumgarten. This is the resumption of the case,

and I mentioned to you that the defendant in the case has the opportunity to make an opening statement, and that can happen either at the outset of the case or before the defense case, if there's going to be one. But keep in mind some very

fundamental principles, and I think I mentioned I would get to some preliminary instructions. I want

to get right on with the witnesses, but I think it's important to at least warm you up, so to speak, and get you ready for the full trial itself. The defendant in a case doesn't have to do anything, he didn't bring the case, he didn't bring the action. He is the subject of an indictment,

and the burden is on the government to prove him guilty of the charge in that indictment beyond a

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasonable doubt. The presumption of innocence

extends not only as Mr. Buczek sits there now, but until any such time as he may be convicted. is not, the presumption of innocence is the controlling factor, and that's your determination to make. You are the determiner of the facts. the judges of the fact. You are If he

I'm the judge of the law,

and you have to, as part of your oath, resolve the fact issues in this particular case. the case is all about. this courtroom. That's what

A dispute is brought to

The prosecution is presenting its That's the normal course, and

case to you first.

it has the sole burden of proof in this case beyond a reasonable doubt on each essential element of the crime charged. I thought maybe I'd just direct your attention once again to the elements of the offense. I note

that the government must prove each by the proof standard of beyond a reasonable doubt. verdict in this case is to be unanimous. Your And that

follows your deliberations, and what I've mentioned to you yesterday is to keep your minds open, wait until everything is in, everything is presented to you. Don't prejudge the case. That would be

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against the rules, and don't discuss this case with anyone or amongst yourselves until you start deliberations. But the three elements that are

required to prove criminal bank fraud, which is what we're talking about, and that's, if you will, the statute, the law is Title 18, Section 1344 and the three elements are these. The government must

prove beyond a reasonable doubt first that there was a scheme to obtain money or funds owned or under the custody or control of a bank by means of materially false or fraudulent pretenses, representations, or promises as charged in the indictment. And the indictment is specific in

terms of the allegations with respect to the scheme. Second, the defendant executed or

attempted to execute the scheme with the intent to defraud the bank. That's element number two, And third,

criminal intent to defraud the bank.

that at the time of the execution of the scheme the back had its deposits insured by the Federal Deposit Insurance Corporation. The government

satisfies you that each of those three elements, every single one has been proven beyond a reasonable doubt, then unanimously you should find that the defendant is guilty. If, however, you are

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not satisfied, unanimously you should decide that the defendant is not guilty. the trial. As you know this is part of the repetition, but we'll get on with the proof in short order. You Basic fundamentals of

have to make your determination though from the evidence. And if you remember yesterday I told you

that there was different types of evidence or different kinds of evidence. I'll talk to you a But

little bit more about that in just a second.

the evidence when presented to you is the basis from which you can find what the facts are, and that's what you did. You resolve the dispute as

far as the facts are concerned and the contentions of the parties in this particular case. A not

guilty plea has been entered in this case, and that's why you're here. fraud. The charge is the bank And you will have

The plea is not guilty.

to apply to the facts the law as I will give it to you at the end of the trial or sometimes during the course of the trial. And once you do that, that

will enable you to make the decision on what the facts are and resolve the dispute between the government and the defendant in this particular case.

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Keep in mind that what I do is my job as, you know, your alternates by sports analogy, the reserves, they're here to fill in just in case they're needed. My job sports-wise is to be the

umpire, and what I try to do is provide you with what the rules are, what the law is and try to keep everything under control as far as the role of the parties and to make sure there's as much order as I can ensure so that your job of resolving the issues is made as easy as possible. What do you utilize in connection with making the decision? Making it easy, I mean, we're all

randomly selected essentially to be here, and the reason why I say that is because it's a question of utilizing common sense, your experiences, and your intelligence in resolving the fact issues by applying the law to the evidence that you hear. I'll tell you what's not evidence as well as ruling in terms of is competent evidence. evidence is what you can consider. Competent Things that are

not evidence, again, and anything I say, that's not evidence. Anything the lawyers say, that's not

evidence, please don't take from whatever I say or whatever questions I ask or whatever rulings I may make I have a view one way or another on the case.

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I really don't. I'm totally neutral. It's your

job to decide the case, not mine, and if you sense I'm leaning in one direction or another, I'm not. I don't know the evidence in this case. We are all

hearing and learning about the evidence for the most part together. Objections to questions are not evidence, the questions themselves are not evidence. The answers When I

to the questions, that's what's evidence.

either sustain or overrule an objection, that's not evidence. But when I sustain it, it means that you

are not to consider whatever it is that's the subject of the question or the answer in the discussion. If I overrule the objection, then it

is allowed in, then it becomes competent evidence, should you choose to consider that to get to a resolve of the fact issues. Sometimes what I'm going to do is tell you a couple things, one, disregard what you heard. Well, you heard it, practically speaking you know it's there, but what we can do is not consider it, not factor it in. instruction. So please follow that

Sometimes I will tell you -- I don't

know if it will come up in this case -- but that evidence is okay for you to consider should you

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 choose to do that but on a limited point, a limited issue, and your job is to follow that instruction, consider it as competent evidence, permissible evidence for you to consider on a limited issue that I instruct you about. That makes it fair.

Are there different kinds of evidence? Certainly. Two kinds specifically though, direct Direct

evidence and circumstantial evidence.

evidence, again using common sense, intelligence, experience. What does that really mean? It means

what somebody has heard, seen, is prepared to tell you about, is in a position to know, and you get that presented to you, that's direct evidence. What's circumstantial evidence? It's the equal of

direct evidence, but it has a different definition. It's evidence of a fact that is the result of an inference that you are allowed to make from other facts that you have heard about. All right. Just by way of example, for the But if you

most part pretty nice outside, right?

saw within the next five minutes a CSO coming in dripping wet, all disheveled, carrying an umbrella, and you knew that he had just come from the outside, circumstantially you know the weather conditions must have changed. That's

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 circumstantial evidence, but the law allows you to give it the equal weight of direct evidence. I'm going to be giving you different instructions on credibility of witnesses. As far

as direct evidence examination is concerned and cross-examination is concerned, you should keep those distinctions in mind only to the extent it applies this way. Sometimes jurors try to figure

out is there a method to the madness that they think I'm involved in. And what I'm really saying

is well, it looks like maybe a particular question in the way that it's asked is sustained when one attorney asks the question, and overruled when there's an objection from another attorney when another attorney asks the question. Well, it

depends sometimes on who's asking the question at what part of the trial. In other words, is it Different

direct examination or cross-examination?

rules apply, so it requires a different ruling on what might appear to be the same manner that was at issue -- the same question that was at issue, so don't try to figure it out. Just know that the end

result is if it's sustained, the objection to the question and the answer has not been forthcoming, or if you heard an answer, the objection means

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't consider it. If it's overruled, you're

allowed to consider it irrespective of whether it's on cross-examination or direct examination. As far as credibility of witnesses are concerned, common sense, intelligence, experience. You decide who's believable or not, in whole or in part, or not at all. consider? nervous? That's the deal. What do you

You observe the witness, is he or she Is he or she able to effectively and Is there a reluctance

clearly able to communicate?

to answer questions that one attorney may ask or maybe Mr. Buczek may ask a question and there might be a different kind of reaction. All those things

you can take into account in determining just as you would in everyday life whether somebody is being truthful or not. You can consider age and

appearance and the manner in which the witness is conducting himself in the courtroom, on the witness stand, and you can use as the backdrop whether you feel or believe from the evidence and the circumstances that you have observed and heard whether that witness was in a position to observe the facts that are involved with his or her testimony in this particular case. The presumption of innocence never leaves

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Buczek until, if that occurs, you're satisfied beyond a reasonable doubt that he should be convicted of the charge. fraud. anybody. You know the charge bank

Please don't discuss this case with And it's not going to be a particularly

long case, so those of you that like to talk, we won't be holding you to that task for too long. Make sure you don't do any independent investigation. Stay away from the Internet. Don't

read the newspapers if there's anything about this case. Avoid web sites, blogs, electronic tools

where you can get information about this case. Once you retire the discussion begins amongst yourselves, but not until then. Stay away from

things that are related to matters such as bank fraud or anything else that you might hear about in this case. They may not be specifically this case,

but there's always so much information out there, if it's general subject matter variety, stay away from it for the reason that you don't want to be confused in terms of what you heard or seen in these four walls versus what's on the outside, because it's not permissible to consider what you learned on the outside during the course of this trial that's not presented to you as evidence.

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the box. J A M E S So, that's pretty much the long and short of where we're at. Government has the burden. Fundamentally basic

Defendant presumed innocent. rules. ready.

You probably know them inside out all I won't take up anymore of your time. Thank

We're very appreciative that you're with us. you. Very important matter to both sides, and

please take your obligation and in a continuing fashion, very serious in this case. been terrific. Thank you. Okay. You've

Miss Baumgarten, do you have a witness? MS. BAUMGARTEN: THE COURT: Okay. We do, James Sauer. Mr. Witness, good

afternoon how are you doing? THE WITNESS: THE COURT: Good, thank you. If you go right to the end of Don't go inside there.

Right there.

S A U E R, having been duly sworn as a

witness, testified as follows: THE COURT: Okay. Mr. Witness, just make Keep the

yourself comfortable there, please.

microphone in front of you, not right at your face but a comfortable distance. If you speak in a You

conversational tone, it should pick you up.

are here for purposes of presenting information and

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible. answering questions to and for the ladies and gentlemen of the jury. THE WITNESS: THE COURT: Okay. Couple of fundamental rules.

If you don't understand the question, just ask that it be repeated. Don't answer a question that If there's an objection to

you're uncertain about.

a question, let me rule first. THE WITNESS: THE COURT: Okay. And then what I'll do is I'll

tell you okay answer that question, complete your answer, or wait for the next question. THE WITNESS: THE COURT: THE WITNESS: THE COURT: Okay. Fair enough? Yes, sir. Okay. Be as responsive as

Give, to the best of your ability, an

accurate answer, but don't volunteer information, because it really is the job of the attorneys or the questioner to ask you follow-up questions because they have to ask the questions in a proper form, and problems develop if you volunteer information that may not be proper. THE WITNESS: THE COURT: Okay. Do you understand those

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sauer. instructions? THE WITNESS: THE COURT: THE WITNESS: Yes. Let's hear who you are. Okay. My name is James

I'm 21 years old, and I'm currently a

supervisor at Best Buy. THE COURT: Okay. I'm going to ask you to Bring the microphone up Slow down a little,

speak a little bit louder. towards you a little bit.

because Michelle, my court reporter, has to take down everything you say precisely as you say it. THE WITNESS: THE COURT: one more time. it. THE WITNESS: THE COURT: THE WITNESS: My name is James Sauer. There we go. James Sauer. Name? I'm 21 years Okay. All right. Repeat your name

Doesn't sound like it's on, does

old, and I'm a supervisor at Best Buy. THE COURT: Still kind of fast, so -- now

you're on, Miss Baumgarten, because if anybody can speak faster than you, it's Miss Baumgarten, so we're going to slow both of you down. DIRECT EXAMINATION BY MS. BAUMGARTEN: Q. Which Best Buy location are you currently Go ahead.

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employed at? A. Q. I work at the one in Hamburg. Best Buy 1131.

Does each Best Buy lotion have it's own

particular number? A. Q. Buy? A. Q. A. Currently about three and a half years. Your current position there is what? I'm the operation supervisor. I maintain and Yes, it does. All right. How long have you worked with Best

supervise the customer service employees, as well as the front checkout employees. Q. Were you employed before you became a

supervisor? A. Q. A. Yes, I was. What did you do at Best Buy? I was the operation supervisor. Basically the

same thing, maybe a little bit less responsibility. But my overall goal was to supervise and help the customer service employees as well as the cashiers. Q. A. Q. A. Q. How long have you been employed with Best Buy? Three and a half years. Has it always been at the Hamburg location? Yes, it has. Is that at the McKinley Mall?

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Are you familiar with the computerized

information and the documents that are prepared by employees and others working at Best Buy? A. Q. Yes. Are you familiar with the credit application

process at Best Buy? A. Q. A. Q. Yes, I am. And who provides the credit? HSBC. All right. Have you actually completed credit

applications with consumers? A. Q. Yes, I have. All right. Have you also overseen or

supervised individuals who have completed those sorts of credit applications? A. Q. Yes, all the time. Are you familiar with the procedures for the

selling of merchandise and services at Best Buy? A. Q. Yes. And that comes through the course of your

employment? A. Q. Correct. What is the arm of Best Buy or the part of Best

Buy that provides computer services?

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense? MS. BAUMGARTEN: Yes. I was going to show A. Q. The Geek Squad. All right. THE COURT: THE WITNESS: The what, I'm sorry? The Geek Squad. That's just

a name that they came up for. THE COURT: THE WITNESS: The Geek Squad? Correct. Your Honor, may I

MS. BAUMGARTEN: approach the witness? THE COURT:

Has that been shown to the

him what's been marked as Government Exhibit 1 for identification. THE COURT: Okay. And the ladies and

gentlemen should know that so that they will know that this is not a surprise to anybody. Thank you. BY MS. BAUMGARTEN: Q. Mr. Sauer, I'm showing you what has been marked Are you familiar with All right.

as Government Exhibit 1. that document? A. Q. A. Yes, I am. What is it, please?

That's the credit card application that a

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consumer would have to fill out in order to obtain credit. THE COURT: Slow down just a little bit

and I think we'll be okay. THE WITNESS: BY MS. BAUMGARTEN: Q. A. Q. Who does that credit application relate to? Shane Buczek. Is that a document that's prepared in the Okay.

ordinary course of the business of Best Buy? A. Q. That is correct. Is it prepared at or about the time the

information was in the document is actually obtained? A. Q. I'm sorry, I don't understand. Is the -- what's been marked as Government

Exhibit 1, is that prepared at or about the time the information is obtained for the credit application? A. Well, there's not an actual date on the

application, so I can't be 100 percent certain. Q. Was it obtained at or about the time the

application was completed? A. Q. Oh, yes. Yes.

Is it made by a person who has knowledge of the

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record. MR. BUCZEK: THE COURT: Judge, I object to that. Overruled. I'll permit it. information within the credit application? A. Q. That is correct. Is it maintained in the ordinary course of the

business of Best Buy? A. Q. Yes. Is it the regular practice of Best Buy to make

that sort of record? A. Correct. MS. BAUMGARTEN: The government moves

Exhibit 1 into evidence, your Honor. THE COURT: 803(6)? Yes, your Honor, business

MS. BAUMGARTEN:

You may continue with testimony. (Government's Exhibit 1 was received into evidence.) MS. BAUMGARTEN: Your Honor, may we place

the document on the screen so the jury may see it as he testifies concerning it? THE COURT: BY MS. BAUMGARTEN: Q. Who was the applicant for the credit that's Yes.

listed on what's been marked --

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Shaken Buczek. Was identifying information obtained from the

defendant in preparing the credit application? A. Q. A. Yes. What information was obtained? All the personal information, as well as a

license, and another form of credit or debit card. Q. Was a Social Security number obtained from the

defendant? A. Q. A. Q. Yes. And what was that Social Security number? 131-08-5635. What information actually was obtained as the

identifying information, what part of what's been marked Government Exhibit 1? A. Well, like I said, all his personal information

which would also be on the license that you have to obtain when filling out the credit card application which is listed at the bottom of the credit card application. Q. A. Q. A. Was the defendant approved for credit? Yes, he was. In what amount? $3,300. MS. BAUMGARTEN: Your Honor, I'm showing

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approach? THE COURT: BY MS. BAUMGARTEN: Q. Mr. Sauer, I'm showing you what has been marked Would you take a Do you Yes. may. MS. BAUMGARTEN: Yes, your Honor. May I the witness what has been marked as Government Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10. Those

were previously provided to the defense, your Honor. THE COURT: Okay. For identification you

Government Exhibits 2 through 10. moment and look at those documents? recognize those? A. Q. A. Yes. What are they, please?

They are the credit card statements which the

customer would receive after purchasing something on the Best Buy credit card. Q. A. Q. Who do those Exhibits 2 through 10 relate to? Under Shane Buczek. Are those records made by a person at Best Buy

with knowledge of the information within those records? A. Correct.

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge. Q. Are they made at or about the time the

information of the events within those records occurred? A. Q. That's correct. Is it the regular practice of Best Buy and

their employees to make that sort of record? A. Well, when they buy something it would then get

sent to HSBC who actually provides these. Q. Are those records kept in the ordinary course

of the business of Best Buy? A. Yes. MS. BAUMGARTEN: Your Honor, the

government moves into evidence Exhibits 2 through 10. MR. BUCZEK: And I object again, Judge. They're business records

MS. BAUMGARTEN: exception, your Honor. MR. BUCZEK:

They're hearsay information,

Copies are hearsay. THE COURT: Business records are exception Permitted under Rule 803(6).

to the hearsay rule. Objection overruled. MR. BUCZEK: make a record. THE COURT:

Okay.

But I just want to

Certainly.

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Government Exhibits 2 through 10 were received into evidence.) MS. BAUMGARTEN: Your Honor, may we place

them -- at least Exhibit 2? THE COURT: BY MS. BAUMGARTEN: Q. Specifically noting what's been marked as Yes.

Government's Exhibit 2 in evidence, do those reflect activity on the defendant's credit card account, Mr. Sauer. A. Q. Yes. That's correct.

What sorts of information is included within

Exhibit 2? A. It would give the date that something was

purchased, along with the amount, and a generalized category of what the customer had purchased. Q. Does it reflect the use of the defendant's

credit card by the defendant? A. Q. That's correct. All right. MS. BAUMGARTEN: Your Honor, I will be

showing the witness what has been marked as Government Exhibits 12, 13, 14, 15, 16, 26, 27, 28, 29, 30, 40, and 41, all of which have been marked for identification and were provided to the

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor? THE COURT: You may. Mr. Sauer, would you defense. THE COURT: Okay. May I approach, your

MS. BAUMGARTEN:

MS. BAUMGARTEN:

please review those documents and let me know when you've had a chance to. THE WITNESS: Okay. Your Honor, is it

MS. BAUMGARTEN:

possible that we can turn that screen on also? Could we tilt it towards the jury. THE COURT: that around. MS. BAUMGARTEN: I'm trying to make sure Thank you, your Gerry, could you just turn

that they have the best view. Honor. BY MS. BAUMGARTEN: Q.

Do you recognize the documents that are in

Exhibits 12 through 16, 26 through 30, and 40 and 41? A. Q. A. Q. Yes, I do. What are they? They are all receipts from Best Buy. Who do they relate to, or what account?

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. They all look to account to Shane Buczek. Are those records made by a person with

knowledge of the information, the actions, and the events within those documents? A. Q. Correct. Are they made at or about the time the acts and

events appearing in the record actually occurred? A. Q. That's correct. Is it the regular Best Buy of to make that sort

of document? A. Q. Yes. Are those records kept in the ordinary course

of business of Best Buy? A. Well, they're not kept on paper receipts on But we can look them up at any time.

file. Q.

Are they maintained in the computer system in

the ordinary course of business of Best Buy? A. That is correct. MS. BAUMGARTEN: The government moves into

evidence what have been marked as Government Exhibits 12 through 16, 27 through 29, 30, 40 and 41 under 803(6), your Honor, business records exception. MR. BUCZEK: And again, Judge, I object. A little child can

Hearsay information is copies.

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make copies and put things on the screen, objection noted. THE COURT: overruled. MR. BUCZEK: THE COURT: MR. BUCZEK: THE COURT: THE CLERK: THE COURT: objection, yes. (Government's Exhibit 12 through 16, 27 through 29, 30, 40 and 41 were received into evidence.) MS. BAUMGARTEN: Your Honor, I'm going to Okay. Thank you. If the objection is hearsay,

I'm sorry? I just want -Certainly. They are entered then? They are admitted over

show the witness what has been marked for identification as Exhibits 34, 35, and 36. previously were provided to the defense. May I approach? THE COURT: BY MS. BAUMGARTEN: Q. Mr. Sauer, I'm showing you Government's Would you Yes. Those

Exhibits 34, 35, 36 for identification. review those, please? A. Okay.

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Are you familiar with those documents? Yes. Do you recognize them? Yes. What are they, please? They contain a receipt from some kind of

purchase that was through the Geek Squad for some kind of servicing on a computer. Q. A. Who do they relate to? Shane Buczek. MR. BUCZEK: THE COURT: MR. BUCZEK: Judge -- objection, Judge. Grounds? Grounds that he doesn't have

firsthand knowledge of who Shane Buczek really is, and again, we're still dealing with copies. They're not originals, and there's no eyewitnesses to testify to the testimony of the eyewitness. Thank you. THE COURT: All right. Miss Baumgarten?

MS. BAUMGARTEN: are originals.

Your Honor, they actually

It is my understanding those are

the original Geek Squad packets that have been marked as Government Exhibits 34, 35, 36. THE COURT: If there's an issue with

respect to whether they're copies or originals, you

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all. THE COURT: Overruled. Okay. Objection's noted. may cross-examine on this, Mr. Buczek. MR. BUCZEK: I just want to object, that's

And you may proceed.

BY MS. BAUMGARTEN: Q. Are those records made by individuals at Best

Buy with knowledge of the information, events, and other occurrences within the documents? A. Q. Yes. Are those records made at or about the time of

the events and the services provided within those exhibits? A. Q. That is correct. Is it the regular practice of Best Buy to make

those sorts of documents in the course of its business? A. Q. Yes. Is it also the ordinary course of the business

of Best Buy to maintain such records? A. Correct. MS. BAUMGARTEN: The government offers in

what's been marked as Government's Exhibits 34, 35, and 36, into evidence as a business records exception.

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: objection. MR. BUCZEK: are all copies. Oh, yes, Judge. I mean these Okay. Mr. Buczek, same

A ten-year-old can run up to a I

copy machine and print this and put it on there. object. THE COURT: All right.

The objection will You may

be overruled, same grounds, same reasons. proceed.

(Government's Exhibit 34, 35, and 36 were received into evidence.) BY MS. BAUMGARTEN: Q. Mr. Sauer, I would like you to look at what has

been marked as Exhibit 36, the fourth page within that, in particular a receipt dated September 18, 2008. A. Q. A. Q. Okay. Do you have that document in front of you? Yes. Okay. Would you please -- actually, what is What sort of services were

that receipt? performed? A.

Well, it was purchase of two pieces of memory

for a computer, the installation of the memory, and a diagnostic and repair and protect. Basically if

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approach? THE COURT: BY MS. BAUMGARTEN: Q. I'm handing, Mr. Sauer, what has been marked as Would you look at an entry You may approach. something was wrong with the computer, you could bring it in and they will see what's wrong with it, fix it, give it back in working condition. Q. What was the total amount charged for the

services performed by the Geek Squad? A. Q. A. Q. A. After tax it was $430.61. How was that paid for? On the Best Buy credit card. For whom? It was -- this one was a temporary card, which

means they had to look it up using the customer's ID and Social Security number, but there's no physical name on the receipt. Q. All right. Would you please look at what has Do you

been marked as Government's Exhibit 2. still have that exhibit? A. I don't think I have that. MS. BAUMGARTEN:

Your Honor, may I

Government Exhibit 2.

on Government's Exhibit 2 that is dated September 18, 2008. Is there one on that

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 particular exhibit? A. Q. A. Q. A. Yes, there is. And that relates to which credit card? The credit card belonging to Shane Buczek. What is the entry on the September 18? 9/18/2008 the transaction is under computers

for detail and the amount was $430.61. Q. I'd ask you to look at what is page 2 marked as What is that document?

Government's Exhibit 36. A.

That is a similar receipt with Geek Squad

services on it. Q. A. Q. A. What is the dollar amount of that? $32.61. What services were performed? It was an optimization, which means they would

take your computer and clean it up a little bit and get rid of all the free stuff that's on it so it runs more fast. Q. A. Q. Who was that paid for? That was also on the temporary Best Buy card. Would you please refer to Government's

Exhibit 2, the entry that's on September 22, 2008. A. It's the same -- it's for computers and on the

statement it shows that it's $32.61. Q. Would you please refer to what has been marked

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as Government Exhibit 34 page 5, in particular an entry September 27, 2008. A. Q. A. Okay. What is that document? It is a receipt for a purchase of a GPS unit

and a car power inverter. Q. A. Q. A. Q. What is the dollar amount of that purchase? It is $417.58. How was that paid for? Also on the Best Buy card. Would you refer to what has been marked as

Government Exhibit 2, an entry on September 27, 2008. A. That is correct. It's for mobile audio for

$417.58, the same as the receipt. Q. All right. Would you please refer to what has

been marked as Government Exhibit 26. (Courtroom technology problems.) THE COURT: we need it? All right. evidence. right now. Ladies and gentlemen, this is not Where is the Geek Squad when

You are not to consider what's going on Okay.

BY MS. BAUMGARTEN: Q. I think I left off asking you to refer to what

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. BY MS. BAUMGARTEN: Q. All right. The September 27, 2008, entry on had been marked Government Exhibit 2, in particular an entry with respect to September 27, 2008. A. I think we were on the next one. THE COURT: up, please. THE WITNESS: BY MS. BAUMGARTEN: Q. A. All right. Would you just -Okay. You have to keep your voice

For September 27th, it was a mobile audio

purchase, and that was in the amount of $417.58. THE COURT: Okay. Hold on a second.

(Courtroom technology problems.) THE COURT: All right. Let's try again

what's been marked Government Exhibit 2 in evidence, what was the amount on that please? A. It was for $417.58. THE COURT: All right. Let's do this.

Mr. Sauer, when you testify about a particular entry, touch your screen, the computer screen, and an arrow should pop up. work. Lets see if that will All right. As long as

Or circle it, whichever -- Okay.

That will help focus the jury I think.

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you don't put the arrow over the numbers. THE WITNESS: THE COURT: I'll try not to. All right, Miss Baumgarten,

let's go forward here please. BY MS. BAUMGARTEN: Q. If I may refer your attention to what has been

marked Government Exhibit 26. A. Q. A. Okay. What is that document? It is a receipt for memory for a computer and

the installation for it by the Geek Squad. Q. A. Q. On whose account? Under Shane Buczek. The dollar amount of the purchase on

September 30, 2008, please? A. Q. A. Q. $173.97. How is that purchase paid for? On the Best Buy credit card. If you would refer to what has been marked as

Government Exhibit 2, is there an entry corresponding to that purchase on September 30, 2008? A. Q. Yes. Would you indicate that for the jury? And

that's in the amount of?

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. $173.97. If you would, please, refer to what has been

marked as Government Exhibit 35, dated October 3, 2008. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Okay. Is there a receipt dated October 3, 2008? Yes, there is. What is that for? That is for another diagnostic on a computer. What is the dollar amount of that purchase? $76.11. How is that purchase paid for? On the Best Buy credit card. For whom? Shane Buczek. Would you refer to what has been marked as Is there an entry on the

Government Exhibit 2?

that exhibit concerning the October 3, 2008, purchase? A. Q. Yes, there is. Would you indicate that for the jury? And

that's the same amount? A. Q. Correct. Would you please refer to what has been marked

as Government Exhibit 12.

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Okay. What is that document, please? It is a receipt for -- looks like an iPod,

headphones, and the warranty on the iPod. Q. A. Q. A. Q. A. Q. When was that purchase made? This was on 10/7 of '08. What was the dollar amount of that purchase? It was for $208.77. How was that paid for? On the Best Buy credit card for Shane Buczek. Would you refer to what has been marked as Is there an entry on that

Government Exhibit 2.

exhibit that corresponds to the October 3, 2008, purchase? A. Q. There is. Would you indicate that on the screen for the

jury, please? A. It's already circled from the last one. That's

where it is. Q. I'm sorry, I repeated myself. I should have

asked you if you would refer to what has been marked as Government Exhibit 2 for the purchase dated October 7, 2008. A. Correct. It's still circled from the last

time.

That's the purchase right there.

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. The $208.77? Correct. Would you please refer to what has been marked What is that please?

as Government Exhibit 27. A.

It is a receipt for purchase of a camera, the

warranty, and some accessories. Q. A. Q. A. What is the dollar amount of that purchase? $296.83. Who made that purchase? It was on the Best Buy credit card of Shane

Buczek. Q. Would you refer to what has been marked as Is there a corresponding

Government Exhibit 2. entry on that exhibit? A. Q. There is.

Would you indicate that for the jury, please?

Would you refer to what has been marked as Government Exhibit 40? A. Q. A. Okay. What is that, please? It is a receipt for -- what looks to be some

kind of accessory for an iPod. Q. A. Q. What is the date of that receipt? October 10th, 2008. The amount that was purchased on that date?

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. $32.61. How was that purchase paid for? On the Best Buy credit card of Shane Buczek. MR. BUCZEK: THE COURT: MR. BUCZEK: Objection, Judge. Grounds? Hearsay information. Is there -Does he

know who Shane Buczek is? THE COURT: MR. BUCZEK: Wait.

-- is there any eyewitnesses

to testify to the statement? THE COURT: You're going to have the

opportunity to cross-examine, and you'll wait until then. MR. BUCZEK: THE COURT: Sure. All right. You may proceed.

MS. BAUMGARTEN:

Your Honor, I'm showing

the witness what has been marked as Government Exhibit 3, and it's previously in evidence, and it's been provided to the defense. THE COURT: Okay. May I approach?

MS. BAUMGARTEN: THE COURT:

Three received into evidence? Yes, it is.

MS. BAUMGARTEN: THE COURT:

You may show the witness. I'm providing the witness

MS. BAUMGARTEN:

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Government Exhibit 3. Is there an entry

corresponding with the purchase on October 10 on Exhibit 3? THE WITNESS: BY MS. BAUMGARTEN: Q. What was the corresponding amount on that Yes, there is.

exhibit? A. Q. $32.61. Would you indicate that for the jury? Would

you please look at what has been marked as Government Exhibit 13. A. Q. A. Okay. What is that? It is a purchase that was made for a bunch of

home theater accessories, a television delivery, installation, the warranty on the television, and a bunch of other accessories. Q. Would you actually look at also what has been What is that

marked as Government Exhibit 28. exhibit? A.

It's the same thing, for the TV and the

accessories and everything, the total of the purchase was $3,382.35. Q. A. How was that charge paid for? On the Best Buy credit card.

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. For whom? Shane Buczek. What was the date of that purchase? That was November 15th of 2008. MS. BAUMGARTEN: Your Honor, I'm showing

the witness what has been marked as Government Exhibit 4 in evidence. THE COURT: BY MS. BAUMGARTEN: Q. In reviewing Government Exhibit 4, is there a May I approach, Judge?

You may.

corresponding entry on that exhibit for the purchase you just discussed? A. Q. Yes, there is. Would you indicate that for the jury please? During the course of your employment with Best Buy, are you familiar with the types of electronic equipment and otherwise that Best Buy sells? A. Q. Pretty familiar. Are you familiar not only by looking at it, but

and also by reviewing the serial numbers? A. Q. The model numbers, yes. Where would those model numbers be found on the

equipment? A. Usually right on the back or the underside of

the equipment.

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Have you had an opportunity to review the model

numbers on the purchases that you've testified to this afternoon? A. Yes. MS. BAUMGARTEN: Your Honor, I'm showing

the witness what has been marked for identification as Government's Exhibits 19, 20, 20A, 20B, 21, 21A, B, C, 24, and 24A. Those were previously provided May I approach?

to the defense, your Honor. THE COURT: BY MS. BAUMGARTEN: Q. You may.

Mr. Sauer, would you review those exhibits and

let me know when you're finished. A. Q. A. Okay. What are those exhibits? They are all pictures of different products

that we carry. Q. Do those pictures accurately depict the

products that Best Buy sells? A. Some of them, yes, because by the model Some of them -- I mean, we do carry some Can't really determine if it's from Best

numbers. of them.

Buy or not. Q. Have you had an opportunity to review the

receipts that we've discussed during your testimony

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 earlier this afternoon? A. Q. Yes. And have those receipts included model numbers

for the items purchased? A. Q. Yes, they do. Have you had an opportunity to review those

exhibit -- those photographs there and compare them to the receipts? A. Q. That is correct. All right. Do the photographs accurately

depict the merchandise that was purchased in those receipts? A. Like I stated, some do, and some you really You couldn't

couldn't tell by just looking at it. be 100 percent by looking at them. THE COURT: THE WITNESS:

You couldn't be what? One hundred percent certain

on some of them, because some of them don't have the models on the front of the picture, so -they're stuff that we are carry, but you can't necessarily say they were from us 100 percent. BY MS. BAUMGARTEN: Q. Can you identify from those exhibits which you

can tell accurately depict the products that were purchased in the receipts?

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approach? THE COURT: BY MS. BAUMGARTEN: Q. 20A? A. It looks to be the 52-inch Samsung television. Mr. Sauer, what is depicted in Exhibits 20 and You may. A. Yes. I would say 20 and 20A, 21A and 21B, and

24 and 24A. MS. BAUMGARTEN: Your Honor, may I

I can definitely tell by 20A because the model numbers are the same that are on the picture as well as the receipt. Q. When you say the receipt, you say that which

has been marked Government's Exhibit 20A? A. Q. Correct. All right. I'm showing the witness what has What do those

been marked as 21 and 21A, and 21B. photographs depict? A.

It looks like it's a Yamaha receiver that would As well again, on 28,

be used for surround sound.

Exhibit 28, the model numbers match up from the picture on 21B to Exhibit 28. Q. I'm showing the witness what's been marked as What do these

Government Exhibit 24 and 24A. photographs depict?

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That is a blu-ray player that was purchased on And I know that by Exhibit 24A, the

Exhibit 28.

model numbers are identical. Q. So those photographs accurately depict at least

some of the merchandise that was purchased by the defendant as what's reflected on Government Exhibit 28? A. That is correct. MS. BAUMGARTEN: The government moves into

evidence what has been marked as Exhibits 20, 20A, 21A and B, 24, and 24A, your Honor. THE COURT: will be received. (Government's Exhibit 20, 20A, 21A, 21B, 24, 24A were received into evidence.) MR. BUCZEK: me to wait till later. THE COURT: No. I said that you can Judge, I do object. You told No objection. The exhibits

cross-examine with respect to identity later. MR. BUCZEK: I object to all of these.

This is just, you know -- I object to everything. THE COURT: Okay. At least in this

courtroom, Mr. Buczek, there's not a standing objection, so -MR. BUCZEK: Thank you.

67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received. MS. BAUMGARTEN: Your Honor, there is THE COURT: -- I'll note your objection.

I will give you the opportunity to cross-examine. MR. BUCZEK: THE COURT: Admission permitted. THE CLERK: Thank you. Objection overruled. And you may continue. May I clarify 20, 20A? Yes.

MS. BAUMGARTEN: THE CLERK: 21A?

MS. BAUMGARTEN: THE CLERK:

Yes.

24 and 24A? Yes. Your Honor, I

MS. BAUMGARTEN:

neglected to say 21B as in boy. THE COURT: What about 21C? That was not one that the

MS. BAUMGARTEN:

witness testified regarding, your Honor. THE COURT: Okay. So A and boy? Yes. They will be

MS. BAUMGARTEN: THE COURT:

All right.

actually a 21, a 21A, and a 21B. THE CLERK: Twenty-one wasn't offered. Your Honor, the

MS. BAUMGARTEN:

Government is offering also Exhibit 21. THE COURT: Okay. Those three 21

68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exhibits, they are all part of group -- they're not group exhibits. They are individually marked.

Exhibits will be received as 21, 21A and 21B over objection. (Government's Exhibit 21, 21A, 21B were received into evidence.) BY MS. BAUMGARTEN: Q. If you would please look at the exhibit that

has been marked as Government's Exhibit 14. A. Q. A. Q. A. Okay. Do you have that one, Mr. Sauer? Yes. All right. What is that exhibit please?

It looks to be a receipt for a bluetooth

headset and the installation of that headset. Q. A. Q. A. Q. A. Q. What is the date of that purchase? November 21st, 2008. What was the dollar amount of that purchase? $97.86. How was that paid for? On the Best Buy credit card of Shane Buczek. Would you please refer to what has been marked Is there a

as Government's Exhibit 4.

corresponding entry on Exhibit 4 for the November 21, 2008, purchase?

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was -MS. BAUMGARTEN: THE COURT: Inadvertent on my part. So we're A. Q. Yes, there is. Would you please indicate that for the jury?

Would you please refer to what has been marked as Government Exhibit 15? A. Q. A. Okay. What is that exhibit? It is a receipt for two blu-ray movies and some

kind of stereo boombox. THE COURT: I don't believe 15 has been Fourteen has been. I

identified and received.

think you asked about 15, Miss Baumgarten. MS. BAUMGARTEN: Your Honor, I intended to

move what been marked as Government's Exhibit 15 in with Exhibits 12 through -- I said 12 through 16. I should probably have identified each of them. I

had them noted as in, your Honor, but I'll go back through if you wish. THE COURT: Well, we're at 15. I don't

think there's a problem with 14, 13 or 12. THE CLERK: THE COURT: I only had 12, 13, 14, 16. And 15 was left out. Maybe it

-- inadvertent.

proceeding with 15 right now.

It's been identified

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not received. MS. BAUMGARTEN: approach the witness? THE COURT: You may. I'm showing the witness Your Honor, may I

MS. BAUMGARTEN:

what has been marked as Government Exhibit 15 that previously was provided to the defense. BY MS. BAUMGARTEN: Q. Mr. Sauer, are you familiar with what has been

marked as Government Exhibit 15? A. Q. A. Yes. What is that, please? That is two blu-ray movies and a stereo

boombox. Q. A. Q. A. Q. What type of document is it? It's a receipt. All right. And the date of that receipt is?

November 21st, 2008. Is that a record made by a person with

knowledge of the information and the acts and the events within the receipt? A. Q. Correct. Is that made at or about the time the purchase

occurred as reflected in that receipt? A. Correct.

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is it the regular practice of Best Buy to make

that sort of receipt? A. Q. Yes. Is that record kept in the ordinary course of

the business of Best Buy? A. Yes. MS. BAUMGARTEN: The government moves what

has been marked as Government's Exhibit 15 for identification into evidence. It's a business

records exception, your Honor, under Rule 803. THE COURT: All right. I will receive

pursuant to that rule Exhibit number 15. (Government's Exhibit 15 was received into evidence.) BY MS. BAUMGARTEN: Q. Referring to Government's Exhibit 15,

Mr. Sauer, that reflects a purchase on what date? A. Q. A. Q. A. Q. A. Q. On November 21st, 2008. And what was it for? Two blu-ray movies and a stereo boombox. What was the dollar amount of that purchase? $217.47. How was that paid for? On the Best Buy credit card. Would you refer to what has been marked

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Government Exhibit 4. entry on that exhibit? A. Q. A. Yes, there is. Would you indicate that for the jury please? It's still circled from the last time, but Is there a corresponding

that's the same. MS. BAUMGARTEN: I'm showing the witness

what has been marked as Government's Exhibits 25 and 25A. Those previously were provided to the

defense, your Honor. THE COURT: you may approach. THE CLERK: For identification? Yes. All right, Miss Baumgarten,

MS. BAUMGARTEN: BY MS. BAUMGARTEN: Q. A. Q.

Mr. Sauer what are those exhibits? They are pictures of a Sony stereo boombox. Do those photographs accurately reflect the

boombox that's reflected on the receipt marked as Government's Exhibit 15 in evidence? A. Q. Correct. All right. So those are actually the items

that were purchased by the defendant on November 21, 2008? A. Well, there is no model to -- no model number

73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15A -MS. BAUMGARTEN: Fifteen was already in. to attach it to, but from the looks of it, it's a Sony boombox with a tape player, and that is what's on Government Exhibit 15 as well. MS. BAUMGARTEN: The government moves into

evidence what has been marked as Exhibits 15 and 15A, your Honor, 25 and 25A, your Honor. THE COURT: All four? Yes, your Honor.

MS. BAUMGARTEN: MR. BUCZEK:

And I object, Judge. I think 15 was in

MS. BAUMGARTEN: previously. THE COURT: Yes.

Okay.

Fifteen and

25 and 25A, which were marked for identification, we move into evidence. THE COURT: All right. All three will be

received over objection. (Government's Exhibit 15A, 25 and 25A were received into evidence.) MS. BAUMGARTEN: If you would please look

at what has been marked as Government Exhibit 31 dated November 22, 2008. THE CLERK: That's in evidence.

Thirty-one is -Your Honor, I stand

MS. BAUMGARTEN:

74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 corrected. May I have a moment, please? Certainly.

THE COURT: BY MS. BAUMGARTEN: Q.

Mr. Sauer, would you look at what has been What is that,

marked as Government Exhibit 31? please? A.

It is a Geek Squad installation receipt,

something that a customer would receive in the home when they were getting installation done on what they previously paid for. Maybe they needed

something extra that they would have to pay for in the home. Q. Is that a document that's prepared in the

ordinary course of the business of Best Buy? A. Q. Yes. Is it prepared by a person who has knowledge of

the information and the events that were occurring in that record? A. Q. That is correct. Is it made at or about the time the purchase is

actually occurring? A. Q. Yes. Is it the regular practice of Best Buy to make

such a record? A. Correct.

75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is it also the practice of Best Buy in the

usual course of its business to maintain that sort of record? A. Correct. MS. BAUMGARTEN: The government moves into

evidence what has been marked as Government's Exhibit 31. exception. THE COURT: All right. I'll receive Your honor, it's a business records

Government Exhibit 31 into evidence. MR. BUCZEK: THE COURT: objection. (Government's Exhibit 31 was received into evidence.) BY MS. BAUMGARTEN: Q. Mr. Sauer, what was the amount of that I object. Objection heard. Subject to

purchase? A. Q. A. It was for $119.63. How was that paid for? Actually on here it doesn't show what kind of

payment it was with. Q. Would you look at -THE COURT: BY MS. BAUMGARTEN: Do you want this published?

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evidence. THE COURT: reference -MS. BAUMGARTEN: THE COURT: Yes, your Honor. If it is, when you do the Q. Yes. THE COURT: All right. gentlemen? THE JURY: BY MS. BAUMGARTEN: Q. Would you look at what has been marked as Is there a Yes. All right, Miss Labuzzetta.

Is it on your screen, ladies and

Government Exhibit 4 in evidence.

corresponding charge for November 22, 2008, for that purchase? A. Q. There is. Would you please indicate that for the jury.

Would you refer to what has been marked as Government Exhibit 16? THE COURT: Received into evidence or not? I have it marked as in

MS. BAUMGARTEN:

-- key the witness to whether

it's received in evidence, and it helps our record out. MS. BAUMGARTEN: Received into evidence. Thank you, Judge.

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: BY MS. BAUMGARTEN: Q. A. What is that document please? It is a receipt for purchase of a washer and Okay.

dryer and accessories that go along with that. Q. A. Q. A. Q. A. Q. What is the dollar amount of the purchase? $2,882.46. How is that paid for? On the Best Buy credit card. For whom? Shane Buczek. Would you refer to Government Exhibit 4 in Is there a corresponding charge?

evidence. A. Q.

Yes, there is. Would you indicate that for the jury please? What type of washer and dryer was purchased on

November 23, 2008, by the defendant? A. They were Samsung. MS. BAUMGARTEN: Your Honor, I'm showing

the witness what has been marked as Government's Exhibits 22, 22A, 23, and 23A for identification. They previously have been provided to the defense. BY MS. BAUMGARTEN: Q. Mr. Sauer, would you review these documents and

let me know when you're done?

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Okay. What are those? They're pictures of the Samsung washer and

dryer. Q. Have you had an opportunity to compare the

photographs in those marked for identification with the receipts that are already received in evidence in particular Exhibit 16? A. Q. Yes. Are the photographs in those Exhibits, 22, 22A,

23, and 23B of the items purchased -A. Q. A. That is correct. Does it accurately reflect those items? Yes, the model numbers from the picture

exhibits match up with Exhibit 16. MS. BAUMGARTEN: The government moves into

evidence what's been marked as Government's Exhibits 22, 22A, 23, and 23B. THE COURT: MR. BUCZEK: THE COURT: MR. BUCZEK: Any objection, Mr. Buczek? Yes, Judge, I object. Same objection. And pursuant to the best I'm sure

evidence rule I believe it's called. you're aware of that.

Has to be original, has to I object.

have eyewitnesses, all that.

79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. THE COURT: All right. I'll permit it as

a business record over best evidence objection. (Government's Exhibit 22, 22A, 23, 23B were received into evidence.) BY MS. BAUMGARTEN: Q. Would you please refer to what has been marked

as Government's Exhibit 41? My records reflect that it is in evidence, your Honor. Are you familiar with that document? Yes. What is it please? It is a receipt for a 26-inch television. Is it a purchase receipt? Yes. What is the date of that purchase? November 26th, 2008. How was that paid for? Most of it was paid on the Best Buy credit card

and a little bit of cash. Q. All right. What was -- the actual amount was

how much? A. After tax was $380.61. $373 even was put on

the Best Buy credit card. Q. Would you refer to what is in evidence marked

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as Government's Exhibit 4, is there a corresponding charge on November 26th, 2008, for that purchase? A. Q. That is correct. Would you indicate that for the jury please?

Referring to, once again, Government's Exhibit 4 in evidence, is there another -- is there an entry on November 28, 2008, for a purchase? A. Q. A. Q. A. Q. Yes. What is that entry? It was a Bestbuy.com purchase for $29.88. How was that paid for? On the Best Buy credit card. In reviewing what has been marked Government

Exhibits 2, 3, 4, and 5 were there actually any payments made on the defendant's Best Buy credit card? A. Q. I can't see that there was. If the defendant had attempted to make a

payment on his Best Buy account by going in the store, would he be able to do so? A. Q. No. We do not accept payments in the store.

Have you had an opportunity to calculate the

amount of the payment -- strike that, your Honor. Have you had an opportunity to calculate the amount of the purchases made by the defendant on his Best

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Buy credit account from September 18, 2008, until his last purchase on November 28, 2008? A. Q. A. Q. A. Yes. Okay. Is that dollar amount $8728.24?

That is correct. How did you go about arriving at that amount? Adding up each purchase on the credit card, not

including any fees or interest or anything like that. MS. BAUMGARTEN: your Honor. THE COURT: Okay. Mr. Buczek, do you have I have nothing further,

any questions on cross-examination? MR. BUCZEK: THE COURT: Just have a couple. Give Miss Baumgarten just a

moment to clear the podium. Okay. Mr. Buczek.

CROSS-EXAMINATION BY MR. BUCZEK: Q. Okay. Good afternoon. Just a couple

questions.

Please, again, can you please state

your name for the record? A. Q. My name is James Sauer. Okay. Thank you. In what capacity are you

appearing here today, in your public or private capacity? I know you probably wouldn't understand

82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. A. I'm sorry, I don't understand. THE COURT: MR. BUCZEK: THE COURT: BY MR. BUCZEK: Q. Do you have firsthand knowledge of any of these Okay. There's no question.

All right. Next question please.

alleged purchases at Best Buy, any eyewitnesses to testify that these purchases actually did take place? A. Q. A. Q. I do not. All right. No. Or I should say do you have a claim against Do you have a claim against me?

Shane Buczek? A. Q. A. Q. I do not. Do you know Shane Buczek? No. Okay. Not personally, no. For the record I accept your fact as

testimony that you have not have a claim -THE COURT: No. Objection, your Honor. You

MS. BAUMGARTEN: THE COURT:

There's an objection.

know what, what you accept or what you don't accept that's not for you to publish. It's for the jury

83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much. MS. BAUMGARTEN: THE COURT: Thank you. THE WITNESS: Thank you. Your Honor, it will just Nothing further, Judge. to resolve all fact issues in this case based on testimony. That is the evidence. All right. Thank you, Judge.

MR. BUCZEK: Thank you. THE WITNESS: THE COURT:

No problem. All right. Thank you very

Mr. Sauer, you're excused.

MS. BAUMGARTEN: take a moment. 212. THE COURT: need ten minutes?

We're getting a witness from Room

Is everybody okay, or do you You want ten minutes? Sure. So As

long as one says yes, you all go. one does say yes.

All right.

We'll see you back here in about

ten minutes, or if anybody needs a couple extra minutes, quarter of at the latest. latest. COURT SECURITY OFFICER: Okay, your Honor. 3:45 at the

(Jury excused from the courtroom.) (Jury seated.) THE COURT: Welcome back, ladies and

84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gentlemen, good to see you. Okay. We are resumed

in the case of United States of America versus Shane Buczek. present. The attorneys and parties are back,

Jury is here, of course, everybody, roll Thank you for staying with us. It's the government's case. We You

call waived.

appreciate that.

have the burden, as you know, Miss Baumgarten, on behalf of the government to prove the defendant guilty beyond a reasonable doubt on each essential element, and the presumption of innocence always is in this courtroom with respect to the defendant. You may proceed with your next witness. MS. BAUMGARTEN: THE COURT: Joseph Kelly. I'm

Good afternoon, sir.

going to ask you to go to the far end of the witness box. Stay right there, don't move, and we

have somebody to help you out here with an oath. J O S E P H L. K E L L Y, having been duly sworn

as a witness, testified as follows: THE COURT: Okay, Mr. Witness, I have just

a few preliminary instructions which I give to all individuals who begin their testimony, and you are here for the benefit of, really, the ladies and gentlemen of the jury. They're here to hear your

testimony in response to questions asked of you.

85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Please be as responsive as possible. Don't

volunteer information, because that complicates things. If you don't understand a question, ask I will direct the attorneys,

that it be repeated.

or if it's me asking you the question, I'll re-present the question. And if there's an I

objection, wait until I rule on the objection.

will tell you then whether to complete an answer or simply wait for another question to be asked. you understand those instructions? THE DEFENDANT: THE WITNESS: THE COURT: Yes, sir. Yes, sir. If you keep your voice up You may Do

about that level and at the microphone.

want to move it up just slightly, or get a little bit closer, and I think it will work pretty well. You don't have to be right on top of it. And if

you would state your full name now and spell your last name, please. THE WITNESS: THE COURT: Joseph L. Kelly, K-E-L-L-Y. Thank you, sir. Your witness.

DIRECT EXAMINATION BY MS. BAUMGARTEN: Q. A. Q. Where are you employed, Mr. Kelly? The Depository Trust and Clearing Corporation. And in particular what location?

86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. 55 Water Street, New York, New York. Is that your business address? That's our business address, yes. What is the business of Depository Trust? The Depository Trust, first off, we're not a We don't have any Our owners are

traditional banking sense. individual account holders.

actually the customers we service. Q. Who are the customers that the Depository Trust

services? A. The customers are various banks and brokerage

houses, banks like Citigroup, Bank of New York. Brokerage houses like Merrill Lynch, Smith Barney, those are our customers. it's like a cooperative. They own us. In a sense

We provide centralized

clearing and settlement and custody for those companies. Q. What do you mean by centralized clearing and

custody for those -A. Custody means we actually possess the They're in our

securities that they have. possession.

So in essence when thousands of

transactions are occurred each day, rather than have the buyer -- rather than have the buyer send the certificates to each of those individual

87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 companies that are buying it and the seller presenting a check to those buyers, everything is done at DTCC. We maintain the custody. Through

our automated systems we do the actual settlement and processing. So at the end of the day rather

than making various thousands of payments, it's actually one payment done at the end of the day. It's called multi-lateral settling, so that each individual customer of ours actually makes one payment, whether it's a payment or a credit, it's only done once at the end of the day. Q. When you talk about DTCC, that's your employer,

Depository Trust Clearing Corporation? A. Q. Yes. When you're talking about securities, what do

you mean by that? A. Securities transactions, you know, there's

corporate securities, there's mortgage backed securities, there's all different various security instruments that DTCC handles. Q. Where are those transactions occurring? Where

are they traded? A. They're traded on the various exchanges, New

York Stock Exchange, American Stock Exchange. Q. Does Depository Trust have individual persons

88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as their clients? A. No. We have no individual accounts. All of

our accounts are companies and entities. Q. How do you refer to your customers and

accounts, by what name? A. We call them participants. THE COURT: THE WITNESS: THE COURT: BY MS. BAUMGARTEN: Q. Does Depository Trust have a routing or a You call them what? Participants. Thank you.

routing number? A. Q. A. Q. A. Yes. You say routing number? Routing number. All right. Is that confidential?

It's available out on the Internet at various

sources, various government entities, Treasury Department, I believe maybe Federal Reserve too. THE COURT: So if it's on the Internet

it's not confidential. THE WITNESS: BY MS. BAUMGARTEN: Q. If an individual approached Depository Trust to It's not confidential.

open an account, could that be accomplished?

89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. You have to be, you know, a member of --

you'd have to be a company doing banking or brokerage business. Q. That would apply either to a saving account or

a checking account? A. Q. A. Q. A. Q. Well, we have no savings or checking accounts. None whatsoever? None whatsoever. Does Depository Trust deal in currency money? No, we don't. If I can direct your attention to the early

part of December 2008, did Depository Trust receive inquiries with respect to the defendant Shane C. Buczek? A. We received a call from HSBC asking us to

verify funds that he was trying to retrieve from us using our routing number. Q. Was other information aside from the routing

number provided to Depository Trust? A. I believe HSBC had sent us copies of the direct

checks that he was attempting to use. Q. Did it include an account number that the

defendant was saying was his at Depository Trust? A. Q. Yes, it did. How many occasions did those attempts occur?

90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I believe four or five occasions. And that was predating the phone call in

December 8? A. Q. Yes. All right. Was information provided by

Depository Trust to HSBC? A. Yes. We told them that the efforts were

fraudulent, and that we would be contacting the Federal Bureau of Investigation. Q. All right. Did you confirm that the defendant

did not have an account with Depository Trust when you were asked that? A. Yes, we did. Typically on such cases we reach

out to our attorneys and ask that question. Q. All right. Did you have an opportunity or

someone at Depository Trust to speak with an agent of the FBI concerning the incidents? A. Yes, our investigator Kenneth May spoke to Fred

Falkowski of the FBI. Q. Does Depository Trust maintain birth

certificates on individuals? A. Q. No. Does Depository Trust keep or maintain any

trust accounts? A. No.

91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it what? MS. BAUMGARTEN: Does Depository Trust THE COURT: Rephrase that question. Does

maintain birth certificates for any individuals? THE WITNESS: THE COURT: BY MS. BAUMGARTEN: Q. Does Depository Trust maintain any accounts No. Next question.

that are trust accounts? A. Q. A. Q. No, not that I'm aware of. For individuals, any trust accounts? We have no accounts for individuals whatsoever. Does Depository Trust have any trust accounts

at all? A. Q. Not that I'm aware of. Have you had an opportunity to check your

participants list for Depository Trust to determine whether the defendant has any account relationship with Depository Trust? A. I believe that was asked of our attorneys to

check on that, and the answer to that was no. There was no account. Q. A. Q. The actual participant list was checked? Yes. Has the defendant ever had any type of account

92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Is it safe to say then that accounts. THE COURT: THE WITNESS: Meaning what again? Participant accounts consist Those are our At the end of the with Depository Trust? A. No. THE COURT: Once again what kind of an

account does DTCC have? THE WITNESS: What we call participant

of banks and brokerage houses. customers, those are our owners.

year if there's excess revenues that exceeds our operating expenses, those revenues are given back to our customers. BY MS. BAUMGARTEN: Q. A. Q. A. Do participants have actual account numbers? We call them participant numbers. How many digits are the participant numbers? I believe they are four digits. MS. BAUMGARTEN: Nothing further, your

your participants such as companies and brokerage houses have trust accounts, is that the type of accounts? THE WITNESS: No, I wouldn't refer to them

93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as trust accounts. THE COURT: THE WITNESS: THE COURT: THE WITNESS: They're just accounts? They're accounts, yes. But you are a trust? We are the name -- we're in What

the name -- our name is Depository Trust.

that is we actually hold the certificates in our custody. THE COURT: Okay. Are the certificates --

MS. BAUMGARTEN:

are the certificates physically in the custody of Depository Trust Clearing Corporation? THE WITNESS: THE COURT: Miss Baumgarten. Yes, they are. Okay. Thank you

Mr. Buczek.

CROSS-EXAMINATION BY MR. BUCZEK: Q. A. Q. A. Q. Good afternoon. Good afternoon. Can you please state your name for the record? Joseph L. Kelly. It's nice to finally talk to you. I have a few My

questions I'd like to start off really quick. research that I have uncovered is that -THE COURT:

If there is an objection to

the form, I'll sustain it.

94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MR. BUCZEK: BY MR. BUCZEK: Q. Are you familiar with the belief system out Okay. that -MS. BAUMGARTEN: THE COURT: Okay. Objection, your Honor. You have to ask a MR. BUCZEK: I have -Objection, your Honor.

MS. BAUMGARTEN: MR. BUCZEK:

I have a belief system

there concerning people like Jean Keating, Winston Shrout -A. Q. No, sir. -- doing seminars on the sweat equity of the

DTC holds, such as the birth certificate and the red number on the back of the birth certificate? Judge, may I approach? THE COURT: First of all, if you ask a

question and there's no objection to the question, let the witness answer it. THE WITNESS: THE COURT: MR. BUCZEK: THE COURT: No, sir. Okay. Okay. All right. Now you have to So the answer is no.

ask a question with respect to what it is you want

95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. to do next and what you're using by way of identification. MR. BUCZEK: Okay. Have you encountered

any other people out there that believe the DTC or the DTCC at 55 Water Street that I referred to is the power of tower at 55 Water Street, New York City, that people believe that they do have a trust account, and all the people are really trust themself, because all cap letters on the birth certificate? MS. BAUMGARTEN: THE COURT: Objection, your Honor.

Grounds? There's a compound

MS. BAUMGARTEN:

It's also beyond the scope of this

Court's ruling with respect to the area of inquiry in the case. THE COURT: I'll sustain it on the

compound nature of the question, and relevancy. You do not have to answer. MR. BUCZEK: Just for clarification,

Mr. Kelly, do you -- do you have a lot of inquiries at your office concerning the sweat equity being held by the DTCC concerning birth certificates, mortgages, and so forth, and so on? Does there

seem to be a movement in America about people

96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge. (Side bar discussion held on the record.) MR. COMERFORD: Can Mr. Buczek ask uncovering what is really happening? MS. BAUMGARTEN: Relevance. THE COURT: Sustained. Can we side bar on that Objection, your Honor.

MR. COMERFORD: for a second? THE COURT:

I'm sorry? Could we side bar on that

MR. COMERFORD: for a second? THE COURT: MR. BUCZEK: THE COURT:

Okay. By the way, Judge -Are you saying it's

foundational in transitioning into other questions? We'll talk about it at side bar. MR. COMERFORD: Just as to the relevance,

questions for the limited purpose of showing that while these things aren't necessarily true other people believe them. THE COURT: And how is that relevant? If a bunch of other people

MR. COMERFORD:

believe this stuff, it makes his beliefs a little more reasonable, and it goes to his state of mind

97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if he's not the only person on earth that believes this stuff. If a bunch of people believe it, then

he's not just a crazy guy who has these crazy beliefs. He's one of thousands of people to have

the same beliefs, and this witness I think would know about that, because he's involved in other situations where this same thing happens. THE COURT: This is with respect to the

element of willfulness, a good faith misunderstanding of the law that can be an issue in a criminal intent case. Given that,

Miss Baumgarten, what's your position? MS. BAUMGARTEN: Simply because many

people believe the wrong thing that's violative of the law doesn't mean that it equals good faith, your Honor. THE COURT: All right. On that basis, you

know, at this point in the proceedings I'm going to sustain the objection. That's not to say that

you're totally precluded at some point, given some foundational connection to try to introduce good faith misbelief in law. That may well come into

play, but it's too early based on the evidence of this witness's testimony. MR. BUCZEK: Judge, basically --

98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record. MR. COMERFORD: MR. BUCZEK: Thank you, Judge. I'll have --

All right.

MR. COMERFORD: Okay. MR. BUCZEK: THE COURT: MR. BUCZEK:

That's -- we made the

All right.

Thank you.

It's premature. Okay. Thanks.

(End of side bar discussion.) THE COURT: Okay. What we just did,

ladies and gentlemen, for your information, is what, as a matter of routine, happens at trials. It's called side bar conferencing. It enables us

to talk in a manner in which we can kind of cut through some matters without full discussion that can be very lengthy. It gets us to the point

quick, so that we don't run into rules in the courtroom that would conflict things, and then we can proceed forward. So, we did resolve the issue I try to

it short order, generally speaking.

minimize those kinds of side bars, because I try to do as much as I can in front of you so that you understand all aspects of the case without going outside the rules. But an occasional side bar

conference I think on an issue like this works. The end result is there was an objection, I'm

99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sustaining the objection on the grounds discussed, and prematurity, and we will go forward now with the next question. MR. BUCZEK: THE COURT: MR. BUCZEK: Mr. Kelly. Thank you, Judge. You're welcome. I'm sorry about that,

There's probably about a million

questions I would love to ask, but I'll just try to keep it very brief. Do you know when HSBC

contacted the DTCC -- I'm not sure, is it the DTCC or DTC, is it two different entities? THE COURT: MR. BUCZEK: THE COURT: Well -Because -Here's the thing, whether Okay. You

you're sure or not, it doesn't matter.

have to be careful on that, because, as you know, I have to treat you like I do every other attorney in the courtroom, so the question really is is there a difference between DTCC and DTC, if that's what you're attempting to ask, okay? BY MR. BUCZEK: Q. Do you know when HSBC contacted the DTC

regarding the Best Buy account? A. Q. December of '08. Okay. And do you recall -- I'm sorry, what

100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 year was that? A. Q. 2008. Eight. Okay. Do you recall the conversation

that took place? A. Q. A. Q. No, I didn't take the call. Okay. My investigator Kenneth May did. Okay. Can you tell me a little bit about what

took place in that conversation between Ken May and yourself? A. Q. I don't understand the question. Okay. Basically what was the outcome of that

conversation? A. Q. A. Of the phone call with Ken May? The conclusion, yes. I'm not clear on the question. THE COURT: If you don't understand the

question, clarify it so the witness is comfortable answering it if he can. BY MR. BUCZEK: Q. Okay. When HSBC contacted the DTC, I believe

the call was forwarded to Ken May. A. Q. Yes. Okay. And Ken May had a conversation, I

believe, with -- is that correct, with HSBC?

101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Yes. Or was it the FBI? Representative of HSBC. So they actually called you? They called -- Kenneth May spoke to HSBC. Okay. All right. Is there a transcript on

that conversation at all? A. Q. Not that I'm aware of. Okay. Could you please tell me what -- can you

recall any bit of what the conversation was about? A. Q. No, I don't. Okay. I guess I'll finish up. I -- I had

several questions, but I guess we're not going to do that. Mr. Kelly, I'd like to finish up by just stating do you know Shane Buczek? him, talked to him? A. Q. No. Okay. Do you believe he had some -- some All right. You don't Have you met

criminal intent -- okay.

have a claim against me, I would imagine the DTC doesn't have a claim against Shane Buczek the defendant. A. Q. I'm not sure what you mean by claim. A claim. Do they have a claim against the

102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant Shane Buczek? A. Q. I don't know what you mean by claim. Do you know anyone that has a claim against the

defendant, the defendant named Shane Buczek? A. Q. I don't understand the question. Okay. Any legal claim, any lawsuit. Is there

a claim -- does the DTC have a claim against Shane Buczek? A. All I know is that when HSBC called, they spoke

to Kenneth May, the discussion was over the funds that you were trying to retrieve from the Depository Trust and Clearing Corporation. And you

did not have an account with Depository Trust and Clearing Corporation. number. Q. A. Q. A. Q. Are you referring to me or the defendant? Defendant. Okay. Thank you. You were using our routing

Shane Buczek. Right. Right. Did you have firsthand

knowledge that this alleged defendant tried to defraud DTC? A. Q. A. Yes. You do have firsthand knowledge? Yes.

103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Okay. How do you have firsthand knowledge? That

The information HSBC gave Kenneth May.

information was forwarded to our AML department, forwarded to Fred Falkowski. I believe canceled

checks -- images of canceled or canceled direct checks were obtained. Q. A. You have the originals? I'm not sure if they're originals or electronic

copies. Q. I really -- I'd like to make a record that the

DTC does not have a claim against the defendant Shane Buczek. MS. BAUMGARTEN: THE COURT: to strike? MS. BAUMGARTEN: THE COURT: ladies and gentlemen. Yes, your Honor. Objection, your Honor. Motion

Objection sustained.

Disregard that statement, It's not proper for either

an individual questioning or an attorney to make a statement under those circumstances. proper or competent evidence. MR. BUCZEK: THE COURT: MR. BUCZEK: Can I finish? Yes. Okay. Mr. Kelly, I got two I thank you for It's not

more questions and I'll be done.

104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 capacity. Judge -THE COURT: MR. BUCZEK: It does. -- he's here in his public Just to -- just a being here today by the way. you coming here. I was not aware of

I wasn't until Friday, Judge, so

I'm kind of like -MS. BAUMGARTEN: THE COURT: your two questions. MR. BUCZEK: Okay. Mr. Kelly, do you come Objection, your Honor. Sustained. Ask

All right.

here in your public capacity or your private capacity? THE WITNESS: MR. BUCZEK: Public. Let the record reflect that,

Thank you so much.

conclusion is that -- so no one here has a claim against the defendant Shane Buczek and for the record -THE COURT: No. No. Objection, your Honor.

MS. BAUMGARTEN: THE COURT:

That's not a question, because

you get the same reaction, I'll ask the jury to disregard. It's the equivalent of a speech or

assuming a determination that a jury should make with respect to what the facts are, and only if

105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of -MS. BAUMGARTEN: It's the ultimate they're relevant to the issues, and at this point in time in the manner presented it would not be relevant. So, it's not competent. If you have a

question, ask that, and then Mr. Kelly can -- he'll be open to redirect examination. MR. BUCZEK: THE COURT: MR. BUCZEK: I'll finish up. Can I rephrase it then? I'm sorry? I just have one question and

Judge, I have so many questions, I

was -- I'm not really prepared for this. THE COURT: MR. BUCZEK: THE COURT: MR. BUCZEK: Okay. I'll finish up. Fair enough. Do you believe that the

defendant Shane Christopher Buczek or Shane Buczek had criminal intent to defraud DTC? MS. BAUMGARTEN: THE COURT: Objection, your Honor. And on grounds

Sustained.

determination of the trier of fact, your Honor. THE COURT: All right. Under that The jury

circumstance it's not relevant.

determines issues that are fact issues, intent being one in this particular case, that this

106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 system. MS. BAUMGARTEN: motion to strike. MR. BUCZEK: I'm not getting due process. Objection, your Honor, witness's view would be usurping the proper function of the jury. MR. BUCZEK: make a record. THE COURT: Understood, but it's not Objection sustained. Judge, I'm just trying to

proper to do it in that fashion. MR. BUCZEK: a licensed attorney. here. THE COURT: Understood, and I'm giving you But when it's clearly Okay. Well, you know I'm not

I'm just doing the best I can

a little bit of leeway.

improper, I cannot allow you to do that. MR. BUCZEK: Judge, I -- I -- the whole

theory of the case is getting back to this -THE COURT: MR. BUCZEK: talk about it. THE COURT: MR. BUCZEK: Right. It gets back to my belief Okay. I know I'm not allowed to

I've got to find out the truth of what's going on here, because I do believe I do have an account.

107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. All right. If you want

to ask more about whether or not you have an account with the Depository Trust CC, I'll allow you to do that at this point, but that's it. You

have to ask it in the form of a question, because otherwise it's unfair to both sides really to proceed in that fashion, and it makes it impossible for the jury to decide what it has to do. MR. BUCZEK: criminal intent. THE COURT: MR. BUCZEK: THE COURT: That's one of the elements -Or lack thereof. -- in this particular case, I'm just trying to establish

which is a jury determination to make, and I -enough. You have standby counsel. I'm giving you

this kind of discussion leeway which, you know, is more than normally would take place. to play by the rules of the courtroom. But you have So if

there's anything to be established, and it's recognized that you're presumed innocent, you have to do it according to the rules. If you want to

ask a proper question, I'll allow you to do that. But you have to do it in terms of questions and answers or documents. MR. BUCZEK: All right. I'll try to make

108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it -- reword it just a little bit, a yes or no question. Can I do that? THE COURT: BY MR. BUCZEK: Q. Okay. Does the DTC hold any sweat equity in Yes.

the defendant's name of Shane C. Buczek or Shane Buczek, and will you testify under penalties of perjury? A. Q. DTCC has no account under Shane Buczek. I didn't say account. Are they holding the

sweat equity on anybody's birth certificate? A. I don't understand that question. MR. BUCZEK: I don't know how -- Judge, I It's either

have no idea how else to rephrase it.

yes or no, do they hold the sweat equity on our hard work and labor. THE COURT: Ask your standby counsel how

you can get a clarification from the witness about what he doesn't understand in that question. MR. BUCZEK: All right. Judge, I got

clarification from Brian. brief.

I'll just try to make it

And I'm not trying to give you a hard time, It's just that I've learned a lot of

Mr. Kelly.

things over the last seven years, and I have a certain belief system --

109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question? MS. BAUMGARTEN: THE COURT: speeches, please. MR. BUCZEK: THE COURT: MR. BUCZEK: Okay. All right. Does the DTC hold the Okay. Objection. All right. No

original, not a certified copy, the original, original, original, original birth certificate and all the promissory notes of every mortgage in America, original, do they hold them, yes or no? THE WITNESS: talking about. MR. BUCZEK: simple yes or no. Okay. Judge, it's just a I have no idea what you're

Do they hold all the original Just a

prison bonds at the DTC, 55 Water Street. yes or no. THE WITNESS: talking about. THE COURT: Okay.

I have no idea what you're

Do you understand the Do it one item at a

Let's do this.

time, maybe it will be a little bit easier for the witness to answer that. But when you add two or

three items, it gets a little bit confusing in the question. Try it just one item at a time. MR. BUCZEK: Okay. Judge, I'm just

110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but -BY MR. BUCZEK: Q. I'll do one question at a time. This was only thinking for a second, okay, because I want to make sure I say it right, so if you just bear with me. THE COURT: MR. BUCZEK: Absolutely. I'm a little slow here,

supposed to be one question, but, I need to know for myself. Do -- does the DTC at 55 Water Street,

referred to as the Power of Tower, 55 Water Street, New York City, New York, do they hold the original -- let's just take for example the birth certificate, the original, and I mean to say that as original, the original -- do they just hold it? Do they hold it, securitize it, do they have the original, question one, birth certificate when somebody is born, the original, not a certified copy with the raised seal that I have here. it go to the DTC and it's held there? know where it's at. A. Q. I have no idea what you're talking about, sir. All right. Does the DTC at 55 Water Street in Does

I need to

New York have anything to do at all with any original birth certificate? connection, anything at all? Anything? Any

111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no. A. I don't see where birth certificates comes into I have no idea. THE COURT: Well, it can call for a yes or

play.

Does it have anything at all to do with the Yes or no? Can you answer it

birth certificate? in that fashion?

THE WITNESS:

No.

I'm not aware of any

involvement with certificates -- excuse me, certificates, securities requiring birth certificates. THE COURT: So the answer is no to the

best of your knowledge? THE WITNESS: knowledge. BY MR. BUCZEK: Q. I'm not trying too give you a hard time. All right. The I Yes. No, to the best of my

just -- I believe it's there.

last -- for example, here's a promissory note. Does the DTC at 55 Water Street hold the original promissory note of every mortgage in America? A. Q. Not to my knowledge. Can you please tell me what the DTC does and

why are they there at 55 Water Street? A. Certainly. DTCC provides centralized custody,

clearing and settlement services for companies --

112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actually the owners, companies that do securities transactions. Again, rather than have individual

transactions one company to the next and have to settle thousands and thousands of transactions a day, DTCC holds custody of those securities through our automated systems. transactions. We clear and settle the

As a result of, you can say

economies of scale, tremendous amount of savings and risk is alleviated as a result of that. Q. A. Could you please tell me -- I'm sorry. Another thing is within the transaction fee, we

do provide -- a segment of that fee goes to an escrow account. In the event a company fails,

those transactions will be settled by DTCC. Q. How many trillions of dollars does the DC do in

one particular 24-hour business day? A. I don't have that figure off the top of my

head. Q. A. Q. A. Q. A. Q. Just a rough idea, one trillion -I wouldn't want to estimate. You can't even throw a number at me? No, I don't like throwing numbers. What's the net worth of the DTC? I don't know, sir. Is it on the Internet?

113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much. THE COURT: MR. BUCZEK: Okay, Mr. Buczek, thank you. Thank you. A few on redirect. it. THE WITNESS: certificates. MR. BUCZEK: for being here today. reflect -MS. BAUMGARTEN: THE COURT: Objection. All right. I -- I thank you I'm not aware of any birth A. I don't know, sir. MR. BUCZEK: I'm not -- Judge, the main

question I want to ask is I don't -- I would like to ask but I guess we talked about at side, but I'm not really getting a clear answer getting back to the original birth certificate, and I believe the answer was no, is that correct, that they don't hold the original birth certificate? THE WITNESS: certificates. MR. BUCZEK: Or you're just not aware of I'm not I aware of birth

And let the record

If you have no further

questions, Mr. Buczek, that's the way we end it. MR. BUCZEK: Okay. Okay. Thank you very

MS. BAUMGARTEN:

114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. BUCZEK: question, but -THE COURT: MR. BUCZEK: to -- all right. It has to relate to -It has to relate directly Anything more, Mr. Buczek? Yeah, I guess, I do have a THE COURT: Miss Baumgarten. Just a couple on

MS. BAUMGARTEN: redirect, your Honor. THE COURT: Okay.

REDIRECT EXAMINATION BY MS. BAUMGARTEN: Q. Does Mr. May -THE COURT: stay where you are. BY MS. BAUMGARTEN: Q. A. Q. A. Is Mr. May still employed at Depository Trust? Yes, he is. Is he currently working? He's out on disability right now. MS. BAUMGARTEN: Nothing further, your Stay where you are. You can

I don't want to take anymore of

the jury's time, but I would still like to reserve some where -- if it gets to that point, I would like to reserve the right to bring him back, Judge. MS. BAUMGARTEN: Your Honor, this is the

115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity. We did provide notice that -I didn't get notice. Well, there is a proper

MR. BUCZEK: THE COURT:

process for recalling witnesses or subpoenaing witnesses on your case. do that. You know that. MR. BUCZEK: I know that. I was just I You have no obligation to

surprised that Mr. Kelly was coming today. thought it was Friday. THE COURT: for some time. MS. BAUMGARTEN:

He's been on the witness list

I did provide information

concerning each of the days's witnesses and the order I expected the government would call. THE COURT: Okay. All right. Given all

of that, Mr. Kelly, you're excused. much. MS. BAUMGARTEN:

Thank you very

Your Honor, we have our

next witness is going to be somewhat lengthy. Would you like us to start? THE COURT: and gentlemen? From a schedule standpoint, ladies and gentlemen, we will start tomorrow at 9:00 a.m, so if you get here at 8:45. Make your best effort to Yes. Everybody okay, ladies

116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do that please. We will continue until 12. You

will get a little extended break till about 2:00 o'clock, and we'll start at 2:00 o'clock. So

you can make up for the indigestion you did get the other day with a relaxing lunch tomorrow. So, we will start at 9:00 o'clock. For those of you that haven't been downtown in a while, we are building a new federal courthouse on Niagara Square, and actually in part it is a construction meeting tomorrow, and talk about a project that's taken a long time. It's now about Okay.

15 years that we've been working on trying to get that courthouse funded and constructed, and we're making progress, but it's a very complicated undertaking. And there's just a myriad of issues

that come up day in and day out, and the construction team gets together from time to time, and tomorrow is one of those days. So we'll work

through it as rapidly as we can to make sure that we have a plan on proceeding forward with the courthouse. It was supposed to have been completed

construction-wise -- and it's a big -- relatively big building. feet. It's about 289,000 gross square

It was supposed to be completed around June Now it's already about

or July of this year, 2010.

117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ready? THE WITNESS: THE COURT: Yes. You're here for the benefit of 13 months late. finished. It will be 2011 before we get it

But it's going to be interesting once So, if you get a chance, it's I'm sorry.

you get to see it.

quite an interesting building.

Stay right where you are, we're going to get you started. E R I C J O H N S C H U M A C K E R, having been

duly sworn as a witness, testified as follows: THE COURT: Okay, Mr. Witness, are you

the ladies and gentlemen of the jury, so I'm going to give you a couple of preliminary instructions on testifying. microphone. You don't have to be right on the You can be slightly back. If we need

an adjustment, I'll tell you that.

But if you

speak in a conversational tone, it should pick up rather well. Be as concise as you can. Don't

volunteer information, that's always problematic if you do. If you have a question about what you're

being asked, just ask that the question be repeated, I'll direct it. If there's an objection,

wait until I rule on the objection, then I will tell you whether to complete your answer or wait

118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for another question to be requested. understand those instructions? THE WITNESS: THE COURT: Yes. All right. You can bend the Tell us who you are Do you

microphone down a little bit.

by name and spell your last name. THE WITNESS: S-C-H-U-M-A-C-K-E-R. THE COURT: Miss Baumgarten. DIRECT EXAMINATION BY MS. BAUMGARTEN: BY MS. BAUMGARTEN: Q. A. Q. A. Q. A. Where are you employed, Mr. Schumacker? HSBC. How long have you been employed at HSBC? Five years. What is your current position? I manage the retail card services fraud Thank you. Your witness, Eric John Schumacker,

department. Q. A. What are your duties in that position? To oversee the investigation of private label

credit cards. Q. What are examples of the private label credit

cards you're referring to? A. Best Buy, Bon-Ton, Menards.

119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approach? THE COURT: BY MS. BAUMGARTEN: Q. Are you familiar with Government's Exhibit 1? You may. Q. Are you familiar with the computerized

information created and maintained at HSBC? A. Q. A. Q. Yes. Do you access that computerized information? Yes. Is that during the course of your position

currently at HSBC? A. Q. Yes. Are the deposits of HSBC bank insured by the

FDIC or the Federal Deposit Insurance Corporation? A. Q. Yes, they are. Were they also insured in that status in

September 2008 through January 2009? A. Q. Yes, they were. Okay. Are you familiar with the types and the

nature of information obtained during the course of HSBC Bank's business and the Best Buy credit card? A. Q. Yes. I'm showing, Mr. Schumacker, Government's

Exhibit 1 in evidence. MS. BAUMGARTEN: Your Honor, may I

120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes, I am. What is that please? It's a Best Buy application, credit

application. Q. A. Q. A. Q. A. Q. A. Q. For whom? For Shane Buczek. What type of credit card was it? It's a Best Buy credit application. Was there credit approved on that application? Yes, there was. In what amount? $3,300. Is there identifying information on

Government's Exhibit 1 concerning the defendant? A. Q. A. Yes, there is. What information is within Exhibit 1? His driver's license number, his name, his

Social, and his address. Q. Who approves credit applications such as what's

shown in Government's Exhibit 1? A. Q. The Best Buy credit department. All right. What is HSBC's function with

respect to the Best Buy credit card application shown in Exhibit 1? A. We are the company that finances the actual

121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 credit for Best Buy. Q. So do you have any -- does HSBC have any duties

with respect to that credit card account? A. Q. A. Q. A. Q. Yes, they do. What are those duties? They oversee the account. Who owns the credit account? HSBC. Who receives payments, posts payments, things

of that nature? A. Q. Through HSBC. All right. I'm showing the witness what has

been marked for identification as Government's Exhibit 18. MS. BAUMGARTEN: That's previously

provided to the defense, your Honor. THE COURT: BY MS. BAUMGARTEN: Q. Would you please review Government's Exhibit 18 Okay.

for identification? Are you familiar with the documents within Government's Exhibit 18? A. Q. A. Yes, I am. What are they? These are screen printouts for the account.

122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Whose screen printouts are they? For Shane Buczek. When you say the term screen printout, what are

you referring to? A. These are for our -- anything that was done

within the account is recorded and saved on these screen -- on this system, and these are screen prints from that system. Q. From the computerized system maintained by HSBC

Bank for the defendant's Best Buy account? A. Q. Yes. Are those records made by persons with

knowledge of the information within Government Exhibit 18 for identification? A. Q. Yes. Are they made at or about the time the events

within and the information contained in Government's Exhibit 18 is actually obtained? A. Q. Yes. Is it the regular practice of HSBC Bank to make

such computerized records? A. Q. Yes. And were those records kept and maintained in

the ordinary course of the business of HSBC Bank? A. Yes.

123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BAUMGARTEN: The Government moves

Exhibit 18 into evidence, your Honor, as a business record exception under Rule 803. MR. BUCZEK: THE COURT: MR. BUCZEK: THE COURT: I object again, Judge. All right. Same thing. Okay. Objection overruled,

and I will permit and receive the exhibit. (Government's Exhibit 18 was received into evidence.) BY MS. BAUMGARTEN: Q. If I can direct you are attention to page 1 of

Government's Exhibit 18 in evidence, what is the account number? A. Q. A. 7001 0621 2448 6055. What is the name on that account? Shane Buczek. MS. BAUMGARTEN: the jury, your Honor? THE COURT: published. BY MS. BAUMGARTEN: Q. By reviewing the documents within Government's All right. It's now Could it be displayed for

Exhibit 18, can you tell whether or not the defendant used the Best Buy credit account?

124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Yes. Did he use it to make purchases? Yes. In addition to merchandise, but also services. Yes. All right. I'm showing the witness Government

Exhibits 2, 3, 5, 4, 6, 7, 8, 9, and 10 already in evidence. documents? A. Q. Yes. Have you had an opportunity to review them Would you take a moment and review those Are you familiar with those documents?

before testifying here today? A. Q. A. Yes. What are they? These are the Best Buy billing statements for

Shane Buczek. Q. Do they reflect the account activity on the

defendant's account? A. Q. Yes, they do. Do they reflect -- what type of activity do

they reflect? A. Q. Purchases, payments, return payments. All right. Are there any payments reflected

within those documents? A. Yes, there is.

125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What is the time frame in which the defendant

made purchases on that Best Buy credit account? A. Q. From September 18th through 12/2. All right. In particular referring to what has

been marked as Exhibit 2, for example, the entry September 18, 2008, what does the term same as cash mean? A. That's a Best Buy promotional offer. If the

customer makes a -- I'm sorry, the payments within a certain amount of time, they receive some type of promotion that's being offered at the time. Q. Could you give the jury an understanding of

what the types of promotions are that would have been possible at this time? A. Q. Reduced interest rate, zero interest rate. If you would please look at page 1 of

Exhibit 18, in particular the entry that says direct check. that term is? A. That's a direct check payment through the phone Would you explain to the jury what

system to one of the representatives of HSBC. Q. A. How is that accomplished? The customer would phone in, give a series of

information to make a payment over the phone with a check.

126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Who has to telephone the customer

representative at HSBC to make that payment? A. Q. A. The person on the account. How is that verified? Through a series of questions just regarding

the personal information of the account, last four Social, address, date of birth. Q. A. in. Q. All right. As reflected on page 1 of Why is that done? To verify that it is the person that's calling

Government's Exhibit 18, who actually made that call? A. The customer Shane Buczek. MR. BUCZEK: THE COURT: MR. BUCZEK: Objection, Judge. All right. Grounds?

The grounds is does he have

firsthand knowledge that Shane Buczek actually called the defendant. THE COURT: asked that. MR. BUCZEK: BY MS. BAUMGARTEN: Q. What type of information was provided by the Okay. Thank you. On cross-examination he can be

defendant on November 18th, 2008?

127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The amount of the check, the check date, the

check number, and that the card holder would agree to a 15-dollar fee for using the service. Q. Sir, I think you can touch your computer screen

and identify for the jury specifically where it is that you're obtaining the information that you just testified concerning. A. Q. Oh, I'm sorry. And this particular occasion, what was the Can you circle it?

check number that was provided by the defendant? A. Q. A. Q. 1308. And what was the amount of the payment? $1,679.74. What happens after that information along with

the bank routing number and account number is provided to HSBC? A. The check is placed in a -- the check has to

clear, and the balance or the amount of the payment comes off the balance off the credit account. Q. In this particular instance on

November 18, 2008, did the defendant provide the information for Depository Trust? A. Q. A. Yes. What does the term check hold mean? That is a term where the check would have to

128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clear usually two days, or would actually clear us just as far as we're concerned. We're giving

enough time to clear the bank that it was drawn off of. Q. In this particular incident on November 18th --

was it November 18, 2008 or was it November 13, 2008? A. Q. November 13th. I misspoke earlier. Was the transaction and

call received on November 13, 2008? A. Q. Yes, it was. So the other information, aside from the date,

that you previously testified to was accurate? A. Q. Yes, it is. Okay. In this particular circumstance was the

direct check payment applied to the defendant's account? A. Q. A. Q. Yes, it was. And when was it applied? November 13th. What was the effect of applying the direct

check payment to the defendant's account? A. Q. I'm sorry, could you ask that one more time? What impact did the application of the direct

check payment have on the defendant's Best Buy

129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. account? A. It opened up his account to buy whatever the

payment was, in this case it was 1679.74 that would have come off the balance. Q. I'm referring the witness to what has been In

marked as Government Exhibit 4 in evidence. particular with respect to an entry dated

November 15, 2008, was there a purchase made by the defendant on that date? A. Q. A. Q. Yes, there was. In what amount? $3,382.35. Did HSBC Bank receive monies, actual monies, as

a result of the direct check payment by the defendant? A. Q. A. No. Why not? Because on the statement it was returned. It

was a -- it was a returned check. Q. A. Q. You're referring to Government's Exhibit 4? Yes, I am. Where specifically on the statement -- if you

could please circle that for the jury also. How is the entry identified? It's identified as a returned check for

130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1679.74. Q. What occurred when the returned check event How did it impact the defendant's

happened? account? A.

That was added on top of the balance.

Added

back to the balance. Q. If you would look at page 6 of Government's

Exhibit 18, in particular an entry occurring November 19, 2008. A. Q. Yes. All right. What occurred on that particular Do you have that?

date? A. In this case the customer called up and

actually used the automated check line. Q. A. What's the automated check line? It's where they call, they do not have to speak They can do -- basically the

to a representative.

transaction is done through an automated system. Q. How does a caller such as the defendant on this

particular day know what information to enter into the key pad at what time? A. There's a series of prompts and instructions

through the phone call. Q. Is there a mechanism by which the identity of

the caller is verified?

131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. On the automated system I don't believe so. What information would the defendant had to

have input into the automated system to have the direct check function occur? A. His account number, the amount of the sale --

I'm sorry, the amount of the payment, the date, the check number that would be used, and that he would -- there's a prompt saying he would agree to pay the 15-dollar fee. Q. Is there a fee attendant to the service on each

occasion? A. Q. Yes, there is, $15. If you would, please, identify by circling the

line or lines of information that you're referring to on page 6 on Government's 18 in evidence. was the amount of the payment that occurred on November 19, 2008? A. Q. $3,397.35. Was that payment applied to the defendant's What

account? A. Q. Yes, it was. If you would please refer to Government's

Exhibit 4, in particular entries starting on November 21, 2008. A. Yes, there is. Are there purchases?

132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Would you please identify for the jury what the

first purchase was and the date on which it occurred? A. The date was 11 -- I'm sorry,

November 21st, 2008, and the first purchase was $97.86. Q. A. Q. A. Q. A. Q. And that occurred at Best Buy? Yes, it did. Is there another purchase? There is, for $217.47. On what date did that occur? On November 21st, 2008. If you would please -- have we circled that for

the jury? Is there a purchase occurring on November 22, 2008? A. Q. A. Q. Yes, there is. What is the dollar amount for that purchase? $119.63. Would you circle that purchase or that line for

the jury? A. Q. Sure. Referring to a transaction on November 23,

2008, was there one? A. Yes.

133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. And what was it? It was $2,882.46. That was a purchase? Yes, it was. What was the net effect on the defendant's

credit account when the transaction on November 19, 2008, of $3,397.35 occurred? A. Q. A. Q. That payment was returned. Right. And that was added on top of the balance. When the payment was first -- information was

received on November 19, 2008, what effect, if any, did it have on the defendant's account? A. It reduced the credit line by that amount. I'm

sorry, not the credit line.

It reduced the balance

of the account of that amount. Q. Would it have increased the available credit

line? A. It wouldn't have increased the available credit But it would have given the customer the

line.

purchase power of $3,397.35. Q. Would it have enabled the purchases to occur on

November 21, November 22, and November 23, 2008? A. Q. Yes. All right. Did HSBC Bank ever receive any

134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 funds, any money with respect to the direct check payment on November 19, 2008? A. Q. No. On Government's Exhibit 4 could you circle for

the jury the return of that payment? A. Q. Sure. Ultimately was the payment charged back to the

defendant's account? A. Q. Yes, it was. If you would please look at Exhibit 18, page 13

of that exhibit, in particular transaction occurring November 24, 2008. A. Q. Yes. Was there an attempt again to use the direct

check function? A. Q. Yes, there was. What was the -- did this occur by speaking with

a representative or by the automated line? A. Q. This was with a representative. All right. Would you please circle for the

jury on that page the information provided by the defendant to HSBC? A. Q. I can. Would the same sort of security information Can you see it now?

have been requested of the defendant on

135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 November 24, 2008? A. Q. Yes. Would the representative from HSBC have

verified that it was the defendant calling by using that information? A. Q. Yes. All right. What was the information provided

by the defendant on that date? A. The amount of the payment, the check date, the

check number, and that the customer would agree to a 15-dollar fee for using the service. Q. A. Q. What was the check number? 1315. Was the information provided, the routing

number and the account number for Depository Trust? A. Q. Yes, it was. What was the amount of the payment on that

date? A. Q. $410.96. Was the payment of $410.96 applied to the

defendant's account? A. Q. Yes. What effect did it have, that application of

that payment? A. It would have reduced the -- it would have

136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reduced the open to buy once again $410.96. Q. When you say open to buy, what do you mean by

that? A. The available -- the available limit -- I'm

sorry, the available funds on the card or on the account to buy something else. Q. Did HSBC ever receive any money, any funds with

respect to the $410.96 payment? A. Q. No. I would refer your attention to Exhibit 18,

page 16, in particular an entry dated November 25, 2008. A. Q. A. Q. A. Okay. I wasn't looking up sorry. That's okay. What occurred on that date? Another direct -- I'm sorry, another direct

check payment. Q. A. Q. How did that direct check payment occur? Once again it was talking to a representative. Would the representative have gone through the

obtaining of security type information from the defendant? A. Q. Yes. What information was provided by the defendant

137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the HSBC representative? A. Besides the card number, the amount, the check

date, the check number, and that they would agree to a 15-dollar fee once again. Q. Would you circle on the screen for the jury

that particular entry? The defendant would have had to provide the routing number and the account number, is that correct? A. Q. A. Q. A. Q. Yes. That would have been for Depository Trust? Yes. Was the -- what was the amount of the payment? $2,896.46. Was that payment applied to the defendant's

account? A. Q. Yes, it was. Has HSBC ever received any of those funds on

that direct check payment? A. Q. No. I refer your attention to Exhibit 4, in

particular an entry dated November 25, 2008. A. Q. A. Okay. Was there a purchase on that particular date? No. On November 25th?

138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Was there -On November 26th. If you said that, I

apologize. Q. me. A. Q. I said November 25. Thank you for correcting

What was the amount of that purchase? $313. Sir, would you tap the screen, it will clear

the screen. THE COURT: BY MS. BAUMGARTEN: Q. Was the -- the $2,896.46 payment ever received No, we'll do it here.

by HSBC? A. Q. No. What occurred with respect to that direct check

payment? A. Q. It was returned. What was the net effect of the return of that

payment? A. Q. It was added on top of the existing balance. If I could refer your attention to Exhibit 18,

page 19 of that exhibit, in particular an entry dated November 28, 2008. A. Q. Yes. Was there another direct check payment

scheduled?

139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes, there was. All right. If you would please circle the

pertinent information for the jury on the screen. How was that payment actually scheduled? That was through our automated system. Which would have provided the prompting to the

defendant? A. Q. Yes. What information would have been provided by

the defendant on that date? A. The account number, the amount of the payment,

the date, the check number that was going to be used, and agreeing to the fee of $15. Q. Would the routing information for the bank and

the account number have also been provided? A. Q. A. Q. Yes. Was that for Depository Trust? Yes, it was. What was the check number provided by the

defendant on November 28, 2008? A. Q. 1319. What was the amount of the payment that

information that was provided by the defendant on November 28, 2008? A. $2,068.74.

140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Was the payment applied to the account? Yes, it was. Ultimately did HSBC receive any funds or any

money with respect to that payment? A. Q. No. If I can refer your attention to Government's

Exhibit 5. A. I don't have Exhibit 5. MS. BAUMGARTEN: THE COURT: It's marked in evidence.

If you want to look on the

screen, I think it's there. BY MS. BAUMGARTEN: Q. A. Q. Exhibit 5. I've got it. Okay. I thought I lost an

My heart fluttered.

exhibit. A. Q.

Do you have it now in front of you, sir?

Yes, I do. Is there a reference on Government's 5

concerning that particular payment in the amount of $2,068.74? A. Q. A. Q. Yes, there is. What occurred? There was a returned check. Referring to Government's Exhibit 4, in

particular an entry on November 28, 2008, was there

141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a purchase by the defendant? A. Q. A. Q. Yes, there was. In what amount? $29.88. If I can refer your attention to Exhibit 18, Do you

page 23, an entry dated December 2, 2008. have that? A. Q. A. Yes. What occurred on that date? Another automated check -- direct check

payment. Q. What information was provided by the defendant

in the automated system on December 2, 2008? A. The account number, the amount that was going

to be paid, the date, the check number, and agree to pay the $15 fee. Q. Would the defendant also have provided the

routing number and the account number at Depository Trust? A. Yes. MR. BRUCE: THE COURT: We lost everything. I think you can proceed

without a publication. BY MS. BAUMGARTEN: Q. Reviewing that page on Government's

142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have? MS. BAUMGARTEN: I have a few more Exhibits 18, was the payment -- did you provide the payment amount? A. Q. A. Q. Not yet. What is the payment amount? $455.84. Was that payment amount applied to the

defendant's Best Buy credit account? A. Q. Yes, it was. Ultimately did HSBC receive any of the funds of

that $455.84 payment? A. Q. No. If you could refer to Government's Exhibit 5. THE COURT: How many more exhibits do you

questions -- I don't have any further to enter into in evidence or ask the Court to accept, Judge. THE COURT: direct then. MS. BAUMGARTEN: THE COURT: BY MS. BAUMGARTEN: Q. All right. With respect to Exhibit 5, is there Okay. Okay. Well, let's finish your

And then -- go ahead, please.

an entry concerning that payment -- direct check payment of 455.84?

143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Yes, there is. And what was the entry? It was a returned check. Are you familiar with the term bust out? Yes, I am. What does that mean? That's when a customer opens up an account,

makes purchases with no intention of paying any of the money back. Q. Was that entry or that designation made with

respect to the defendant's account? A. Yes. This account was labeled a bust out

account. Q. Why was the defendant with a $3,300 credit

limit able to actually purchase merchandise and services approximating $8,800? A. Because every time there was a direct check

payment made, the customer would go back into the store almost immediately and then make additional purchases before the check had a chance to clear. Q. Did HSBC ever receive any moneys in payment of

any of the charges on the defendant's Best Buy account? A. Q. No. Did the defendant make any online payments with

144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect to his Best Buy credit account at HSBC? A. Q. No. Did the defendant make any cash payments on the

balance owed on his HSBC Best Buy credit account? A. Q. No. Did he pay by traditional check, a paper check,

any funds, any payments on his Best Buy credit account? A. Q. No. Did he make any payments by money order on his

Best Buy credit account? A. Q. No. Has HSBC received any money from any entity,

including Depository Trust, for any of the amounts owed on the defendant's Best Buy credit account? A. Q. A. Q. No. Is the amount in full outstanding? Yes, it is. With respect to the purchases of merchandise

and services from Best Buy account, did you have an opportunity to calculate that figure? A. Q. A. I did. And it's in --

Is it $8,728.64? Yes, it is. MS. BAUMGARTEN: Nothing further, your

145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Okay. How are you doing, All right. Before it

ladies and gentlemen, okay?

gets too dark, should I let you go and come back tomorrow morning, and we're going to start at what time? THE JURY: THE COURT: with anybody. Nine. You won't talk about this case

Keep your minds open until all of So we'll see you tomorrow

the evidence is in. morning.

Thank you very much for your service.

Mr. Schumacker, we will see you as well tomorrow morning at 9:00 o'clock. very much, folks. (Jury excused from the courtroom.) THE COURT: MR. BUCZEK: * * * Cross-examination tomorrow. Right. * Thank you. * * Okay. Thank you

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CERTIFICATION

I certify that the foregoing is a Correct transcription of the proceedings Recorded by me in this.

s/Michelle L. McLaughlin Michelle L. McLaughlin, RPR Official Reporter U.S.D.C., W.D.N.Y.

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