VOL.

V 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 8, 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

540 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 38 37 EVD. 555 559 WITNESS OPENING STATEMENT BY MS. BAUMGARTEN SCOTT KAWSKI Direct Examination by Ms. Baumgarten Cross-Examination by Mr. Buczek Redirect Examination by Ms. Baumgarten Recross-Examination by Mr. Buczek SUMMATIONS Ms. Baumgarten Mr. Buczek CHARGE TO THE JURY VERDICT ON COUNT II I N D E X PAGE 549

552 562 576 577 582 583 584 595

541 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 COURT: Lets find out. I don't think Let's call the

there's anything that's at issue. case.

As soon as the jury is here, we will get

started. THE CLERK: Criminal case 09-121S, United

States of America versus Shane Buczek. THE COURT: Government attorneys are here.

Miss Baumgarten, good morning. MS. BAUMGARTEN: THE COURT: MR. BRUCE: THE COURT: MR. BUCZEK: THE COURT: Good morning, Judge.

Mr. Bruce. Morning, Judge. Mr. Comerford, Mr. Buczek. Morning, Judge. We should get started as If you haven't

quickly as possible in this case.

received it yet, I have the proposed charge for you to look at. It's very basic. It addresses

Count II specifically.

It also references the fact

that the full charge that I gave on Friday is incorporated into today's charge. proposed jury verdict form. There is the

And I think both sides

have discussed that at least a little bit with Mr. Moeller. And I think it should be in good And I think we're ready to

stead, good form.

542 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 exhibit? MR. BUCZEK: The exhibit is begin. There will be, if you choose, opening You have one witness? Yes.

statements.

MS. BAUMGARTEN: THE COURT:

That's Mr. Kawski? Yes. And there's an And if there's any

MS. BAUMGARTEN: THE COURT: Okay.

opportunity to cross-examine. defense case, you let me know. MR. BUCZEK:

Yeah, Judge.

I just want to An

add some exhibits into the evidence file. exhibit. THE COURT: All right. What's the

August 20th, 2009, transcript from Judge Schroeder. And also another exhibit is an authentication that was authenticated without certified -- I got it authenticated by the DOS and DOJ, and authentication number 0903321-1, and signed by Hillary Clinton and Eric Holder, and that document is pertaining to case number 08-CR-054 and filed on January 9th, 2009. THE COURT: Mr. Buczek? MR. BUCZEK: It's a notice of rescission How is that relevant,

543 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 object. yet. MS. BAUMGARTEN: The government's going to of signature on the conditions based on my findings that I filed, which was never responded to. present that to you? THE COURT: No. I don't think so, not Can I

First of all, we had not seen that.

Second of all, I anticipate that there will be testimony from Mr. Kawski with respect to the process. The fact that the defendant -- I guess

it's relevance, Judge. MR. BUCZEK: THE COURT: It's original, Judge. All right. It may be. At

this point in time I'm going to deny the request. You made your record. You've identified it. It

preserves your right to argue relevancy I guess. As far as the transcript is concerned, you can use the transcript for impeachment purposes, but I suppose if Mr. Kawski -- if there's any testimony there -- has he testified before? relate to Mr. Kawski's testimony? MR. BUCZEK: He was an eyewitness to I believe his name is on And does that

the -- to this hearing. here.

Scott Kawski, probation office, also present And I

in the room at 1:47 p.m., August 20th, 2009.

544 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 use. THE COURT: Does it relate specifically to got it listed down as Exhibit B. use this as Exhibit A. MR. BRUCE: transcript. Judge, I am familiar with the I was going to

In the transcript Judge Schroeder, for

lack of a better term, criticized me. THE COURT: MR. BRUCE: I'm aware of that. That's the transcript he wants

the testimony of Kawski? MR. BRUCE: No, your Honor. The objection would be

MS. BAUMGARTEN:

relevance then, your Honor, with respect to the findings this Court -- the jury has to make in this court now concerning counsel. MR. BUCZEK: All I was trying to do is

show motive behind this case and other cases, the motive behind it, because my findings is that there is no, you know -- well, I don't want to repeat myself over and over and over again. There is

really no valid claim in front of the jury to even make a verdict on. And basically it gets back to

the whole -- it's a fruit from the poisonous tree doctrine, and that's all I'm trying to get across. THE COURT: I think I'll acknowledge you

545 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 Okay. MR. BUCZEK: THE COURT: Thank you. Okay. Let's just find out if making the record on that point. the transcript. do with it. I'm familiar with

I know what you're attempting to

I will sustain the government's

objection to it, but your record is preserved by identification. MR. BUCZEK: One more thing, on page 30,

Judge Schroeder, on line 21 it says that "Mr. Buczek is not about to bring down the government of the United States, that's my finding." I got it right here. THE COURT: And again, that will be

referenced in the record, but it's not admissible for purposes of -MR. BUCZEK: THE COURT: Okay. Thank you.

-- this part of the case.

the jury is available.

As soon as we're ready,

we're going to bring them right in. THE CLERK: alternate is here. regular jury. We're missing three. The

She has been separated from the

We're missing three, and Gerry is

going to let me know as soon as they're all here. THE COURT: As soon as they're ready,

546 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 seat. Okay. brief. we'll come and we'll get started. You want to set

up the opening statement -- if you're going to use the podium. MS. BAUMGARTEN: I'm going to make it very

If the Court wishes there to be a podium, But it will be very brief. I don't think we need it then.

that's fine.

THE COURT:

As soon as the jury is here we'll get Thank you. MS. BAUMGARTEN: Thank you.

started.

(Short recess was taken.) (Jury seated.) THE COURT: Good morning. Good morning. Please have a

It's good to see you bright I arranged the

and early on a Friday (sic). weather just for you.

We are now resumed in the

case, once again, United States versus Shane Buczek. And the attorneys are present, and, of This is your return, I

course, Mr. Buczek is here.

guess, first time since Friday when you rendered as to Count I the guilty verdict in that case. And I

again commend you and thank you for your commitment to this case and to your duty. We left it on Friday with my telling you that I was unable up to that point in time to relate to

547 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 that you would have to come back for another task, and I'll explain to you why that is and what's going to transpire this morning. You will

be asked to render another verdict, and the verdict, likewise, will have to be a unanimous verdict. The instructions that I gave you fully

apply to the process that you will be involved in, and there will be a brief opening statement by the attorneys, if they choose to do that, and there can be a brief closing argument as well. The case is one that involves a second count as part of the original indictment, which was what we call bifurcated. And Count II of the indictment It charges

reads as follows, just so you know.

that defendant Shane C. Buczek was on release pursuant to an order dated March 13th, 2008, from the United States District Court for the Western District of New York, case number 08-criminal-54, which order notified said defendant of the potential affect of committing an offense while on pretrial release. From on or about September 18th, 2008, to on or about January 16th, 2009, in the Western District of New York, and elsewhere, the defendant Shane C. Buczek, did commit the offense of bank fraud in the

548 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 manner set forth in Count I of this indictment in violation of Title 18, United States Code, Section 1344. So this is all in violation of Title 18, Remember that that second count

Section 3147(1).

of the indictment that he was on release when the bank fraud was committed, in essence, is -- that charge is not evidence, just as I instructed you with respect to Count I. was not evidence. That indictment charge

It's simply a charge that puts

the defendant on notice of the crime that he was accused of committing. So, your task is to resolve Count II of the indictment. And in that regard, the government There will be one You will judge

will make an opening statement. witness in this particular case.

credibility as you have, and it's with respect to establishing, if it can, beyond a reasonable doubt, the fact of the commission of a crime while the defendant was on release for another, and that is in essence the crime. So, we will have the opening statements. is not evidence. apply. Keep in mind the same rules That

You will hear from Miss Baumgarten, the The one witness I believe

prosecutor in this case.

will be a probation officer from the United States

549 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 Probation Office. short. The testimony should be very

The openings will be very short, and then

once that is complete I have a very brief charge incorporating everything we talked about. going to reinstruct you. You have with you alternate number one, Miss Alexander, she's back. You probably thought I'm not

you wouldn't get to see her again, but we brought her back on popular demand. This is a serious matter as you know, and I think once you hear the opening statements -- it's a bird's eye view -- it's simply to tell you a little bit more than what I told you. what the attorneys say is not evidence. What I say, What the

witness will tell you is evidence, then you go out and do your deliberations, and we'll have you back here and that will conclude your jury service. We thank you again. Sorry we had to bring you

back today, but whenever there is important business to both sides, we're all a little bit inconvenienced, but please with an open mind approach your very important duty in this case. Miss Baumgarten, if you will. MS. BAUMGARTEN: gentlemen of the jury. Good morning, ladies and A very little more than

550 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. what the Judge mentioned to you. The government

anticipates we will call one witness, a United States probation officer, Scott Kawski. We

anticipate the testimony of Probation Officer Kawski to establish not only that the defendant was subject to conditions of release based on his release for another pending criminal matter, but also in particular and most importantly that one of those conditions of release identified the ramifications, the consequences the defendant would face in the event that he committed a state, local, or federal offense. We also anticipate eliciting testimony from Probation Officer Kawski that not only was the defendant released on that condition among a number of other conditions, but that the defendant remained under those conditions of release during the course -- the time frame that the jury's previously considered with respect to the Count I of the indictment. That time frame, as the jury

may recall, is September 18, 2008, up to and including January 16th, 2009. Probation Officer Kawski. THE COURT: So we will hear from

Thank you.

Okay, Miss Baumgarten, thank

Is there anything that you want to be heard

551 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 hope? S C O T T on at this point by way of an opening statement, Mr. Buczek? MR. BUCZEK: THE COURT: Mr. Kawski testifies? MR. BUCZEK: THE COURT: Sure. Okay. And then you can Sure, Judge. Or do you want until after

All right.

talk to Mr. Comerford a little bit in terms of what you might want to say. MR. BUCZEK: THE COURT: witness, please? MS. BAUMGARTEN: Kawski please. THE COURT: Yes? Okay. Everybody have an okay weekend Thank you. Yes, Probation Officer Fair enough? Yeah. Okay. Want to call your first

K A W A S K I, having been duly sworn as

a witness, testified as follows: THE COURT: THE WITNESS: THE COURT: Morning. Morning. Mr. Witness, I'm going to ask

you very shortly to identify yourself, but, as you know, you are here to testify for the benefit of the ladies and gentlemen of the jury. What it

takes is basically to keep your voice at a

552 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 conversational tone. should pick you up. Aim at the microphone, that As far as any questions that

are asked of you, do not answer a question you don't understand. If you don't understand it, let

us know, I'll redirect the attorneys to pose another question or to clarify the question. volunteer information. Don't

If there's an objection,

wait until I rule on the objection, and then I will give you instructions on whether to answer or wait for another question, do you understand? THE WITNESS: THE COURT: I do. Okay. State your full name,

spell your last name please. THE WITNESS: THE COURT: Miss Baumgarten. DIRECT EXAMINATION BY MS. BAUMGARTEN: Q. A. Q. A. Q. You are employed, is that accurate? That's correct. Where is that? United States Probation Office. How long have you been employed by the United Scott Kawski, K-A-W-S-K-I. Okay. Your witness,

States Probation Office? A. Q. Ten years. What are your current duties there?

553 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. I am a United States probation officer, and my

duties include supervising individuals released on bail. Q. What were your duties during the course of 2008

through the early part of 2009? A. Would be the supervision of individuals

released on bail. Q. All right. Are you familiar with the

defendant? A. Q. A. Q. Yes. How is it that you know the defendant? He is under my supervision. When did he first begin being under your

supervision? A. May of 2008. MS. BAUMGARTEN: I'm showing the witness

what has been marked for identification purposes Government's Exhibits 37 and 38. were provided to the defense. Honor? THE COURT: BY MS. BAUMGARTEN: Q. Officer Kawski, would you please review You may. Those previously

May I approach, your

Exhibits 37 and 38? A. Sure.

554 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. Are you familiar those documents? Yes. If I may direct your attention first to what's What is that

been marked Government Exhibit 38. document please? A.

38 is the list of conditions ordered by the

judge that -- it's an order setting the conditions of release. Q. All right. Is that a document prepared in the

ordinary course of the business, not only of the court, but also United States Probation Office? A. Q. Yes. Is it prepared at or about the time the events

within that document occurred? A. Q. Yes. Is it kept and maintained in the ordinary

course of the business of the court system, but also the United States Probation Office? A. Q. Yes. With respect to Government's Exhibit 38, does

it also contain a raised seal? A. Q. A. This copy does not. On the front page. Yes, it does. MS. BAUMGARTEN: All right. The

555 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 moves Exhibit 38 into evidence, your Honor. THE COURT: MR. BUCZEK: All right. Any objection? I

Yeah, Judge, I object.

haven't even seen the evidence yet. THE COURT: That was previously provided

to you, but if you want to take a look at it now. It's right in front of you in your binder. MS. BAUMGARTEN: Your Honor, would you

like me to get the original that has the seal? THE COURT: MR. BUCZEK: THE COURT: No, that's okay. I see a copy, Judge. Okay. On the basis that you

hadn't seen it, I'm going to overrule the objection. It will be received into evidence as

Government's Exhibit 38. (Government's Exhibit 38 was received into evidence.) BY MS. BAUMGARTEN: Q. A. Q. Who prepares that document? This is prepared by someone from our office. In this particular instance was that Probation

Officer Zenaida Piotrowicz? A. Q. Yes. That was prepared on March 13, 2008, is that

556 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 correct? A. Q. A. Q. Yes. All right. In court. What is occurring to the best of your knowledge Where is it prepared?

when the document is prepared? A. When this document is prepared, the judge has

decided to release the subject on bail with specific conditions. Q. All right. Is the document signed on page 4 of

that? A. Yes. MS. BAUMGARTEN: Your Honor, may we

publish the document for the jury? THE COURT: BY MS. BAUMGARTEN: Q. If I may direct your attention to page 4, is Yes.

that document signed? A. Q. A. Q. A. Q. Yes. By whom? By the defendant and by the judge. Who is the judge in this particular instance? It would be Judge Schroeder. All right. There's a date also, March 13th

date?

557 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. All right. THE COURT: Of 2008. Yes, March 13, 2008?

MS. BAUMGARTEN: THE WITNESS: BY MS. BAUMGARTEN: Q. All right.

Yes.

Why was -- what were the pending Do you

charges with respect to the defendant? recall? A.

I don't recall on this particular one what the

pending charges were. Q. If you would please state the criminal action

number into the record please. A. Q. 1-08-CR-54. If I may direct your attention to subdivision

one on page 1 of Exhibit 38, would you -- first of all, what is that? A. That is the first condition that the judge

orders. Q. A. Q. Is it a standard or special condition? Standard. What is that standard condition? If you would

please read it into the record? A. The defendant shall not commit any offense in

violation of federal, state, or local law while on

558 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 release in this case. Q. What would occur if a defendant did not sign an

order setting conditions of release? A. If he did not sign the conditions of release, I

believe the judge would not release him. Q. If I may direct your attention to what has been

marked as Government Exhibit 37. A. Q. A. Q. Okay. Are you familiar with that document? Yes. Was it prepared in the ordinary course of the

business of the court system and also the United States Probation Office? A. Q. Yes. Was it kept and maintained in the ordinary

course of the business of the court system and also the probation office? A. Q. Yes. Was it prepared at or about the time the events

and information contained within that exhibit occurred? A. Yes. MS. BAUMGARTEN: The government moves into

evidence what has been marked as Government Exhibit 37.

559 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? THE COURT: Mr. Buczek? MR. BUCZEK: on the record. THE COURT: MR. BUCZEK: Okay. Object to the conditions, and Yeah, Judge, I'll just object Okay. Any objection,

do you want me to make a formal statement on that or save it for later? THE COURT: No. If it's on the basis of

the conditions, I'll sustain -- or overrule your objection. MR. BUCZEK: THE COURT: MR. BUCZEK: I'm going to say. THE COURT: Okay. I'll receive it as Okay. But I will receive it. I think you already know what

Exhibit 37 government's, received into evidence. (Government's Exhibit 37 was received into evidence.) MS. BAUMGARTEN: Oh, we already did. May we publish 37 to the Thank you.

BY MS. BAUMGARTEN: Q. A. Q. What does that document relate to? This is an appearance bond. Was there a signature on that appearance bond?

560 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. Whose signature? Looks like Shane Buczek and Judge Schroeder. Was the defendant released on or about

March 13, 2008, pursuant to the provisions of the Bail Reform Act? A. Q. Yes. Did there come a point in time when you met the

defendant in order to supervise him? A. Q. A. Yes. What occurred during that initial meeting? The initial meeting is when we review the

conditions of release, provide him with copies of those, and the instructions of our office are given. Q. During the course of your initial meeting with

the defendant, did you review each and every one of the standard and special conditions that were imposed upon him as conditions of his release? A. Q. Yes. All the conditions are reviewed.

Did you have any discussions with the defendant

concerning the consequences should he fail to violate any of those standard or special conditions of release? A. Yes, that is a standard practice in our office.

561 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. Q. In the event that the defendant had any

questions concerning any of those conditions, what would have occurred? A. They were to ask me, and I would have answered

them. Q. Was it on or about March 13, 2008, the only

time you had discussions with the defendant? A. Q. No. Did you discuss with the defendant at any other

time any of the conditions of his release? A. Yes. MR. BUCZEK: THE COURT: Judge, can I object? Not at this point. There's

nothing before the witness. BY MS. BAUMGARTEN: Q. Was the defendant on release under the

supervision of the United States Probation Office in September 2008 up to through and including January 2009? A. Q. Yes. Does the defendant continue to be on

supervision? A. Yes. MS. BAUMGARTEN: Nothing further, your

562 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: any questions? MR. BUCZEK: THE COURT: Yes, Judge, I do. Okay. The originals are still Okay. All right. Mr. Buczek,

MS. BAUMGARTEN:

with the witness, your Honor. THE COURT: there at this time. CROSS-EXAMINATION BY MR. BUCZEK: Q. A. Q. Good morning. Morning. I don't think I need to ask your name for the Yes. We'll leave them right

record, but it's -- I'm sorry to eat up your time today, Mr. Kawski. I do want to go back to, real

briefly, to the document that we just briefly saw on the screen. I think it was dated March 13th

of 2008, Exhibit 38? A. Q. way. A. Q. Okay. Do you know -- let me ask you in a different You didn't prepare that document, did you? No. Okay. You weren't in court when Judge

Schroeder ordered that condition on I think it's March 13th, 2008, were you? A. No.

563 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. Okay. You said if the defendant does not sign

the conditions, the judge would not release him, is that correct? A. Q. Yes. Have you ever had a situation like that happen

before if a defendant would walk into the courtroom would not sign? A. Q. I've never personally, no. Has anybody ever signed under threat of duress

and coercion? A. Q. Not to my knowledge. Under these circumstances is it possible that

the defendant's signature is not entirely voluntarily when you're looking at possible jail or prison I should say, do you think that maybe possibly they're doing it under threat and duress? A. I don't know what their state of mind is when

they sign it. Q. Were you present in the court -- I'm sorry, let

me back up a second, I want to go back to Exhibit number 39 real quick, please. THE COURT: 37? 37, I'm sorry.

MR. COMERFORD: MR. BUCZEK: 37.

MR. COMERFORD:

Thank you.

564 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 BY MR. BUCZEK: Q. So you weren't present in the courtroom on

March 14, 2008, when the appearance bond was posted, were you? A. Q. No. So you're assuming that the judge told -- told

you that -- told me that I was on release under the Bail Reform Act, actually the defendant I should say, sorry. A. Q. Yes. Okay. So you actually didn't hear him do it on

audio or transcripts or -A. Q. I was not there, no. Okay. Just a couple more questions, You're here on your public capacity or

Mr. Kawski.

private capacity today? A. Q. A. Q. I don't know what you mean by that question. Public or private capacity? I'm here because I was subpoenaed by the Court. Okay. Has there been any -- I believe you came

down to the defendant's house a few times over the last year or year and a half. Can you briefly

recall anything that might have taken place or anything that you can recall at all? A. The conversations regarding the defendant's

565 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. THE COURT: MR. BUCZEK: BY MR. BUCZEK: Q. Are the probation officers -- actually all the Just ask a question, please. Thank you. supervision. Q. A. Q. That's it? Yes. Okay. Is the United States employees required That's all you can recall?

to have a 1938 Foreign Registration Act, green card, oath of office -MS. BAUMGARTEN: MR. BUCZEK: Objection. Judge, I'm just

-- bond?

trying to establish authority here, that's all. THE COURT: I'll permit the question. I

don't know what the full question is, then I'll entertain -MR. BUCZEK: It's just a yes or no

U.S. employees are they required to have some type of Foreign Registration Act? It's called 1938

Foreign Registration Act, green card, oath of office, bonding agent, just basic authority? For

example, if you have a car, you have to have car insurance, registration. Are the United States

employees required to have that?

566 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. move on. MR. BUCZEK: THE COURT: BY MR. BUCZEK: Q. Are you -- are you familiar with the violation Okay. Thank you, Judge. A. Q. I don't know the answer to that. That's all, I just want to put it on the Mr. Kawski, do you have a claim against

record.

the defendant? A. Q. No. Do you know anybody that has a claim against

the defendant? A. Q. I'm not sure what you mean by claim. Basically -- well, do you know anybody that has

some type -- how do we say it in a way we might understand. Is there an injured party present in

the courtroom that can point to the defendant? A. Q. Could you rephrase that? Is there an injured party that you can point to

in the courtroom validating the conditions, because you must have an injured party to validate the conditions of release. MS. BAUMGARTEN: THE COURT: Objection, your Honor. You've asked the You may

Sustained.

It's not a proper question.

You're welcome.

567 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? that took place back on August 13th of 2009? A. Q. Yes. I'm sorry, let me rephrase that. It's

August 12th, 2009. A. Q. Yes. Can you please give me just a little bit of

information of actually what happened on that night? I believe your signature is on here

somewhere. MS. BAUMGARTEN: document -MR. BUCZEK: Dated -- yeah, it's dated It's a condition Your Honor, there is a

8/12/2009 signed by Scott Kawski. that was alleged bail violation on August 1st of 2009. THE WITNESS:

Are you aware of that? I'm aware of that, but I

would need something to look at to -MR. BUCZEK: THE COURT: as a defense exhibit? MR. BUCZEK: Please. Your Honor, may we staple Judge, I have a copy. Okay. You want to mark that

MS. BAUMGARTEN:

It's a multi-page document. THE COURT: Sure. Just count the number

of pages for the record, please.

568 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. I'm not sure that the MS. BAUMGARTEN: There are four, your

MS. BAUMGARTEN:

defendant is moving it into evidence at this point, or what he's attempting to do, your Honor. MR. COMERFORD: I think it's just for May I approach

identification at this point. Mr. Kawski? THE COURT: You may.

MS. BAUMGARTEN: THE COURT: questions? MR. BUCZEK: BY MR. BUCZEK: Q. Okay.

Thank you. Mr. Buczek, any

Yeah, I do have a question.

In that particular document, do you recall

what -- the events that took place on that day? A. Q. A. On the date that the document was prepared? Yes. The events that took place was I prepared this

document and submitted it to the Court. THE COURT: talking about? THE WITNESS: THE COURT: August 12th, 2009. Okay. What's the date that you're

569 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: Was there any -- any -- I Do you

guess I should ask in a different way.

recall the conclusion of that -- that alleged bail violation? MS. BAUMGARTEN: Objection, your Honor.

It's beyond the scope of the timeframe within the indictment, as the date he testified to is in August of 2009. 2009. THE COURT: Okay. Stop with that. That's That post-dates the January close,

your explanation, that's your objection. Mr. Buczek. MR. BUCZEK: Judge, I'm trying to

Go ahead,

establish the behavior of the U.S. attorney's office -MS. BAUMGARTEN: MR. BUCZEK: Objection, your Honor.

-- against the defendant.

All these conditions are based on the fruit of the poisonous tree doctrine. THE COURT: MR. BUCZEK: something here. THE COURT: And that's not a cognizable Okay. I'm just trying to establish

legal objection for this particular document and it's relevance, so I will sustain the government's

570 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 objection. You cannot use this document, and you So it's

cannot further question on that theory. put to rest.

You've identified it for the record,

and we'll move on. MR. BUCZEK: Okay. Thank you. The next

bail violation I believe was dated January 11, 2010, are you aware of that one? MS. BAUMGARTEN: same thing. THE COURT: MR. BUCZEK: THE COURT: MR. BUCZEK: BY MR. BUCZEK: Q. Mr. Kawski, are you aware of the -- I believe I This is a long time ago. This goes All right. No? No. Not relevant. Sustained. Objection, your Honor,

Okay.

dropped this.

way back to January 9th, 2009.

I believe I dropped

off a courtesy copy to your office and Judge Schroeder sometime right around January 8th or the 9th of 2009. And that document was document number It's filed under

83 filed -- okay, here it is. 01/09/2009.

It was a 16-page document pertaining

to the case number 1:08-CR-00054, and it's -- just briefly, it just talks about my signature. It's

notice of rescission of signature pertaining to the

571 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 conditions that we're talking about today. aware of that document? THE WITNESS: I don't recall the exact You provided me Are you

document without seeing it.

volumes of documents over the course of supervision. MR. BUCZEK: exhibit C? THE COURT: All right. And that's notice Judge, can I make this as

of rescission of signature, is that essentially the document? MR. BUCZEK: THE COURT: It's right here. All right. What do you want

to do with that, Mr. Buczek? MR. BUCZEK: Basically show him that the

conditions that we're talking about today are -are invalid because what I'm trying to get to with Mr. Kawski I've been looking for who has a claim against the defendant, and at this particular time you can't have a condition without a claim. THE COURT: Okay. What I'll do is I'll However, if

permit the document to be marked.

there's an objection, I will sustain the objection to its use. MS. BAUMGARTEN: There is, your Honor.

572 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 relevant. MR. BUCZEK: it's bias, I -MS. BAUMGARTEN: THE COURT: Okay. Objection, your Honor. Okay. I mean, that Judge, I strongly believe THE COURT: Okay. The government objects. So you cannot use

MS. BAUMGARTEN: THE COURT: the document. those lines.

All right.

You cannot further question along It's not relevant and not material

and not competent. BY MR. BUCZEK: Q. Okay. Mr. Kawski, how many times has the

defendant allegedly been violated in the last two years, or tried to have been violated? A. Q. Three times I believe. Okay. How many times has the government been

successful in violating my conditions? MS. BAUMGARTEN: THE COURT: Objection, your Honor. It's not

Yeah, sustained.

will be noted for the record. response.

That's your

But the ruling remains the same.

Objection sustained. BY MR. BUCZEK: Q. Mr. Kawski, I know I should ask it in a way

573 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 you know my belief system, correct? A. Q. A. I am aware of, yes, some of it. And maybe it's a little outside the box? Outside -- I don't understand what you mean by

outside the box. Q. It's not a normal thinking that people would

think of -- and in our country I guess. A. Q. A. Q. I would agree with that. It's kind of odd. Yes. And the defendant studies quite frequently, and

maybe every now and then -- not all the time, but every now and then might drop off courtesy copies that kind of like refer to the case or cases at hand, is that correct? MS. BAUMGARTEN: Relevance. THE COURT: Well, I don't know, maybe it's Objection, your Honor.

preliminary, so I'll overrule your objection right now. You may answer that question. THE WITNESS: I don't know the amount of

the study, but I do know about the amount of copies that I have, yes. BY MR. BUCZEK: Q. Do you know what -- what the subject matter is?

574 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. yes. Q. Okay. MR. BUCZEK: BY MR. BUCZEK: Q. Mr. Kawski, I think I left you a phone call -I'm almost done, Judge. I have a basic idea what the subject matter is,

I dropped you a phone call on Friday or Saturday night about coming to court on Monday. And just to

basically give you notice that I had to be here. Are you familiar with that phone call? A. Q. Yes. Okay. Good. In that phone call do you recall

the message? A. Q. Not verbatim, no. Not verbatim, but you do recall that I gave you

notice to be here today? A. Q. Yes. Even though I didn't subpoena you, the

government did. A. Q. Yes. Mr. Kawski, do you know the actual definition

of -- of defendant? A. Q. Not verbatim, no. Okay. Do you know the actual definition of a

person?

575 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. THE COURT: MR. BUCZEK: Okay. Thank you. A. Q. Again, not verbatim. Okay. Do you know the definition of Title 28

3002 (15) (a), (b), (c)? A. Q. No. The only reason I brought that up, Mr. Kawski,

is I believe in the last couple years I might have left something like that to give you my mindset on the corporations and the real party, and all that. Judge, I'm just basically trying to set matters here, my belief system. And in my belief that --

without eating too much more of the Court's time, as I'm trying to establish a valid contract of conditions of release, and that has not been met at this time in two years. And if it was signed --

and I've done it over and over and over again -that every signature in the last two years have been under threat of duress and coercion. I had no I

choice, you either signed it or you go to jail. just want to make a point of it. THE COURT: Okay.

If there's evidence of

that, you may argue that. MR. BUCZEK: Thank you. I have no further

576 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. Just briefly please. Yes. THE COURT: Anything? Just a couple, your

MS. BAUMGARTEN:

MS. BAUMGARTEN:

REDIRECT EXAMINATION BY MS. BAUMGARTEN: Q. During the course of your employment as a

probation officer, have you been present in court when defendants such as this defendant have an initial appearance and conditions of release are set? A. Q. Yes. Based on that experience would you just briefly

tell the jury what occurs? A. The judge reads the charges against the

defendant, a decision is made whether he will be released on bail or kept in custody. If the

decision is made that he'll be released, a set of conditions is picked out by the judge. what those conditions are in court. He reads

Our office

records those conditions, and when he is released, those are the conditions that he is subject to. Q. The probation officers who are present in court

when that process occurs, are they assigned to your unit?

577 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: THE COURT: Okay. Thank you. A. Q. Yes. Are they individuals who actively supervise

defendants? A. Q. Not all the time. Would you identify when you speak concerning

Shane Buczek, who that is? A. The individual at the defense table with the

stars and stripes tie on. MS. BAUMGARTEN: Nothing further, your

One question. Certainly.

CROSS-EXAMINATION BY MR. BUCZEK: Q. Mr. Kawski, we had a trial last week that

you're aware of, right? A. Q. Yes. I think it was the issue with bonded promissory Have I ever dropped anything off to your

note.

office concerning how the banks operate? A. I don't recall everything that's in those piles I don't know. So, do you recall anything concerning

of papers. Q. Okay.

how banks accept payments as promissory notes? MS. BAUMGARTEN: Objection, your Honor.

578 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: MR. BUCZEK: THE COURT: Mr. Buczek. All right. Judge, I'm getting back -It's beyond the scope now,

Objection sustained. Thank you. All right.

MR. BUCZEK: BY MR. BUCZEK: Q.

Mr. Kawski, do you recall on

January 16th of 2009, at around 6:00 o'clock in the morning? A. Q. You need to be a little more specific. Do you recall that there was an actual raid,

not at my house but at my parent's house January 16th, 2009. A. Q. I do. Was the -- the weather not that great, were Do you recall that morning?

they? A. Q. It was wintertime. Yeah, it was a bad day. Do you recall -- I

believe you guys had a meeting outside that location somewhere on Route 5? A. Q. Yes. Can you please tell me the discussions that

took place? MS. BAUMGARTEN: Beyond the scope. Objection, your Honor.

579 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: MR. BUCZEK: Sustained. Mr. Kawski, did you see the

actual warrant on January 16th? MS. BAUMGARTEN: THE COURT: Your Honor, objection.

Sustained. Beyond the scope.

MS. BAUMGARTEN: MR. BUCZEK:

I have more questions, but I Thank you.

think I'm -- I'm done, Judge. THE COURT: Okay.

Thank you, Mr. Buczek. Thank you very much.

Mr. Kawski, you're excused. MS. BAUMGARTEN: going to get the exhibits. THE COURT: Okay.

Your Honor, I'm just

Anything additional? No, your Honor. The

MS. BAUMGARTEN: government rests. THE COURT: Okay.

37 and 38 are included

in the evidence of the government. MS. BAUMGARTEN: THE COURT: MR. BUCZEK: Okay. Yes, your Honor. All right.

Judge, I have a question.

Did this make it into the evidence file? THE COURT: It's not in evidence, but it's

marked for identification, so your record is protected. MR. BUCZEK: The jury won't be able to see

580 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 this, right? THE COURT: No, they will not. Okay. Is

there anything from the defense? Mr. Comerford, you want to talk with Mr. Buczek? MR. COMERFORD: I will, Judge. Just for

the record, and I'll supplement it at a later time, we would make a motion to dismiss under Rule 29. Reserve the right to supplement that. THE COURT: MR. BUCZEK: Okay. Judge, I'm going to go ahead I think the

and disregard the opening statement. jury has heard enough.

I do want to call one

eyewitness in concerning this issue, I'm going to call Amanda in. THE COURT: issue, Mr. Buczek? MR. BUCZEK: THE COURT: MR. BUCZEK: Amanda Buczek. I know, but what issue? The issue if she has All right. Concerning what

firsthand knowledge of my documents, and everything concerning these conditions of release. THE COURT: MR. BUCZEK: Okay. It's just basically trying to

validate the contract that we have that we're

581 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 rebuttal? MS. BAUMGARTEN: THE COURT: No, your Honor. rests? MR. BUCZEK: list in front of me. I don't have an eyewitness There was others that would talking about today. MS. BAUMGARTEN: The government would

oppose this particular witness on this point, your Honor. THE COURT: All right. If it's a

validation of the contract issue, then I will sustain the government objection, and preclude her testimony. MR. BUCZEK: THE COURT: MR. BUCZEK: THE COURT: And I object, Judge. Okay. As long as it's noted. Okay. With that, the defense

like to take the stand, unfortunately my mom and dad are not here today, they're out of town. I do

have serious issues and doubts about this condition that it's -- you know, it's like I got a gun pointed at my head, but I'll rest at this point, Judge. THE COURT: Okay. Thank you. No

Ready to close?

582 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 COURT: Okay. Yes, your Honor. Ladies Yes, your Honor.

MS. BAUMGARTEN:

and gentlemen of the jury, the testimony was fairly straight forward, at least I'm arguing that it is, with respect to not only the imposition of the condition of release on the defendant on March 13, 2008, but also that he continued to be under that supervision, including that condition, during the course of conduct that's at issue in Count I of the indictment, that being September 18, 2008, up to and including January 2009. So the government asks the jury to Also consider Exhibits 37

consider the testimony.

and 38, the signature by the defendant on each of those documents, and additionally, the discussions that Officer Kawski testified regarding that he actually had with the defendant during the course of that supervision. guilty on Count II. THE COURT: Please find the defendant Thank you. Okay. The government's

burden, as you know, is beyond a reasonable doubt on the essential elements. precisely. We'll talk about that

The defendant is presumed innocent What you heard the prosecutor

until proven guilty.

583 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 everyone. argue to you is her closing argument, but it's not evidence. Only evidence that you are to consider

is that from the witness who testified or any documents -- and any documents that are received into evidence. So with that, Mr. Buczek, is there anything you want to say in your closing argument? MR. BUCZEK: Yes. One second, Judge.

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

One second, Judge. Certainly. Okay. All right. Thank you,

We just heard from Mr. Kawski just now

pertaining to these conditions of release. Mr. Kawski has firsthand knowledge of -- actually he doesn't have firsthand knowledge of what the proceedings took place way back on March of 2008. And he was not in the courtroom and he did not prepare the documents. He assumed a presumption

that the judge released the defendant on the Bail Reform Act which the judge will tell you is in the element of the government's -- is an element that the government must prove beyond a reasonable doubt. And also the defendant asked Mr. Kawski if

there was a claim present in the Court and, of

584 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 course, that has not been established, and it hasn't been established at all in the last week and a half. And I have no further questions. It's up

to you to make the right decision. the record, Judge, there's no claim. THE COURT: MR. BUCZEK: Thank you. THE COURT: Okay. Okay.

But, on and for

No valid claim anyways.

Mr. Buczek.

Okay.

Ladies and gentlemen, it's now a complete case, all right? That's everything that the parties have And

with respect to Count II of the indictment.

you are now about to enter your final duty, which is to decide the case and the case being Count II. You've already rendered your decision with respect to Count I of the indictment. I will instruct you on the law applicable to Count II. I'm not going to repeat my instructions But those instructions I've instructed

that I gave you on Friday.

specifically continue to apply.

you on your duty as it relates to finding facts and weighing evidence and the credibility of the witnesses, all of that applies here today. It's your continuing duty to adhere to the instructions as you deliberate on Count II. You

585 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 should follow the same method at arriving at a verdict on Count II as you did on Count I, and your verdict must be based exclusively upon the evidence or lack of evidence presented to you. And once

again, you must be unanimous in your verdict. You've heard the testimony of Scott Kawski. He's a law enforcement official. He's a member of He

the Probation Department or probation office. is law enforcement, if you will, and, again, I

remind you the fact that a witness may be employed by the federal government as a law enforcement official, that fact does not mean that his testimony is necessarily deserving of more or less consideration or greater or lesser weight of that of an ordinary witness. It is up to you to give

that testimony whatever weight, if any, you find it deserves. Now you know that there's Count II, that's what you are considering. It's -- the indictment A not guilty plea I told you that

Count II is only an accusation. has been entered to that count.

not guilty plea has also been entered as to Count I. As a result of the not guilty plea to

Count II, the burden is on the prosecution to prove guilt beyond a reasonable doubt. And remember the

586 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 definition of reasonable doubt was a doubt based on reason. And that burden with respect to proof

never shifts to the defendant, and once again, the reason is the same. The law never imposes on a

defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A

defendant is presumed innocent until proven guilty. I therefore instruct you that the defendant Shane Buczek in this case to be presumed by you to be innocent throughout your deliberation until such time, if ever, you as a jury are satisfied that the government has proven the defendant guilty beyond a reasonable doubt. Count II of the indictment charges Shane Buczek with committing an offense while on pretrial release in violation of the specific statute or law of the United States, Title 18, Section 3147, and that indictment is what I read to you earlier, and that is that Shane Buczek, according to the charge, was on release pursuant to an order dated March 13th, 2008, from this district, the Western District of New York, in case number 08-CR-54 -this case is 09-criminal-121 -- which order notified him of the potential effect of committing an offense while on pretrial release. And further,

587 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 charge is that from on or about September 18th, 2008, to on or about January 16th, 2009, in the Western District and elsewhere, Shane Buczek did commit the offense of bank fraud, which you found, in the manner set forth in Count I in violation of Title 18, United States Code, Section 1344, all in violation of Title 18, Section 3147(1). The indictment is not evidence. of that again. I remind you

It merely describes the charges It is only an accusation

made against Mr. Buczek. and nothing more.

Now here's the elements, the essential elements of the crime. This is Count II. Each must be First, that

established beyond a reasonable doubt.

Mr. Buczek was released pursuant to the Bail Reform Act; second, that he was notified of the effect of committing an offense while on pretrial release; and third, that he committed an offense while he was on pretrial release, namely, the bank fraud offense charged in Count I for which you have already found him guilty. Now, with respect to that, the government must prove these essential elements by the required degree of proof as I've explained to you beyond a reasonable doubt. If it succeeds in your unanimous

588 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 determination, your verdict should be guilty on Count II. If it fails to prove those essential

elements beyond a reasonable doubt, your verdict should be not guilty. And again, to record any Your

verdict it must be unanimous in this case.

function is to weigh the evidence in the case and determine whether or not Mr. Buczek is guilty on Count II solely on the basis of the evidence or lack of evidence. So your final vote must reflect

your conscientious conviction as to how the issue should be decided. Your verdict, whether guilty or

not guilty, must be unanimous. After you have reached a unanimous verdict, just have your foreperson, Mr. Bridges, fill in the verdict form that has been given to you. He will

sign it and advise the court security officer that you are ready to return to the courtroom with your verdict. As to the questions you answer on the

verdict form, your answers must be, as you know, unanimous. Each and every juror must agree before

an answer to the question is recorded on the verdict form. I stress that you should be in

agreement with the unanimous verdict which is announced in court, and once your verdict is announced by your foreperson, Mr. Bridges, in open

589 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 court and officially recorded, it ordinarily cannot be revoked. This incorporates all of the other charges and instructions that I've given you with respect to Count I. The fabric is the totality, and your job

is to carry out your oath, reach your unanimous verdict, determining whether the government's proof satisfies you beyond a reasonable doubt on each essential element of the crime charged. Anything further by way of charge? MS. BAUMGARTEN: THE COURT: MR. BUCZEK: THE COURT: Mr. Buczek. Okay. Ladies and gentlemen, what we will do, You will get the folder We will have our court He will Okay. Thank you, Judge. All right. Thank you, No, your Honor.

once again, that's it. relating to this count.

security officer sworn by Miss Labuzzetta. take you in his charge. to step aside.

We will ask Miss Alexander

You will wait for us until the

verdict is rendered, and we need you as the backup in this case, okay? Thank you. You've been terrific. You know,

this is important to both sides, so please do your

590 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 duty. We'll be here when you're ready to come back

with your verdict. If you would administer the oath, please Miss Labuzzetta. (Oath administered.) THE COURT: I hope some day they change All

that oath, but it gets the message across. right. Important case, all right.

Please decide Okay.

it, and we'll wait for you to come back. Thank you.

(Jury deliberations commenced at 10:50 a.m.) THE COURT: Miss Alexander, if you just

stay as the jury leaves. Okay. You know you are in a utility role here, We will

backup, in case we need your services.

notify you when the verdict will be delivered to the Court. that. A JUROR: THE COURT: Okay. Okay. So you want -- okay. And you are permitted to be here for

Our court security officer Bernie will take you back to the jury assembly room, and we'll have you notified when everything is finalized for today. A JUROR: Okay.

591 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: appreciate it. Okay. Thanks for coming in, I really

Bernie, if you wouldn't mind please. (Alternate juror excused from the courtroom.) MS. BAUMGARTEN: Your Honor, as is the

normal practice, counsel has reviewed exhibits as does -THE COURT: Mr. Bruce, please. As does the defendant.

MS. BAUMGARTEN:

It is my understanding that the defendant refuses to sign the exhibit list prior to its submission to the jury with respect to Count II. THE COURT: your prerogative. MR. BUCZEK: Judge, I have nothing in All right. That's -- that's

there for them to review. THE COURT: MR. BUCZEK: Okay. And it's just -- just like

the trial, they had 30 some exhibits, I had none. And here we go again. I got to at least get

something in so they have something to see maybe there's a doubt here, and they have nothing to review. I mean, if -- if -- you know, we got to be

like semi-fair.

592 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: All right. In the Count I

there was one of your exhibits that was received and did go to the jury room. In this case there

are none, but they have to be properly qualified and established and relevant, and they were not in my judgment. But you've made your record, you've So, I guess all of that can relate

perfected that.

to the appeal process, but, remember what I said, and that's why I gave you Mr. Comerford, because you have to follow the rules. by the same rules. And everybody plays

And yes, I know you want I let you make statements

certain things in there.

so that the -- you know, that kind of thing, but it would not be fair under the rules to allow you to do something that the rules don't permit. MR. BUCZEK: Judge, is -- I know. THE COURT: MR. BUCZEK: No. No. All I was trying to say,

All I'm trying to say is that Geez, for seven days I mean,

who has a claim against me?

now I've been asking over and over again.

you're going to find -- which we have an issue who the defendant is. But the thing is that even the And that's my

defendant has no claim against him.

whole issue, they're not going to be able to know

593 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 what's going on. THE COURT: But see, and this is what I've The indictment

been trying to tell you all along.

is the charge slash claim against you for this criminal case. I know it doesn't comport with what But for purposes of our

you view to be a claim.

system, it is a criminal charge claim, if you will. So you have to deal with that, and then, you know, we'll see what happens afterwards. MR. BUCZEK: I understand that. But in my But

opinion -- I don't want to say I know the law.

in my opinion for anything to be criminal they have to produce a verified affidavit of complaint, and the government has not even come close to doing that, and you know it, I know it, and maybe Mr. Bruce knows it. proof of claim. claim? THE COURT: Okay. But we just talked There is no -- there is no Who has a

There is no claim.

about that, and this does get repetitious, right? Yeah. MR. BUCZEK: all I want. THE COURT: MR. BUCZEK: Okay. But it's -- I mean -It's on the record, that's

594 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: MR. BUCZEK: I know. I don't know what to say. I

can't even get this in the evidence file. THE COURT: Okay. Well, the record I

think will also demonstrate your frustration, and if that's enough, I don't know in the end result. But to the best of my ability I've tried to give you your forum to make your case. But it's not

enough to qualify the documents and the evidence that you wanted to get in under the rules that apply to criminal cases in the norm. So, stay around. When the verdict -- the jury

verdict comes in, we want you here, and we'll go from there. MR. BUCZEK: I do have some comments about

the trial, but I will save that for later. THE COURT: MR. BUCZEK: Okay. Thank you.

Thank you. Thank you, your Honor.

MS. BAUMGARTEN: MR. BRUCE:

And Happy Birthday.

(Short recess was taken.) (Case resumed at 11:29 a.m.) (Jury seated.) THE COURT: Okay. Thank you for coming We're resumed in the

back, we appreciate that.

595 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 case of United States versus Shane Buczek. This

proceeding relates to specifically Count number II of the indictment. The government attorneys are

back present, and Mr. Buczek as well, and standby counsel Mr. Comerford. roll call waived. I did receive a note at approximately -- looks like 11:17 -- I'm sorry 11:19 I think, and the note reads as follows. "We have a verdict." And, So the jury is back here,

Mr. Bridge, I takes it you have the verdict, is that right? THE FOREMAN: THE COURT: Yes, sir. Okay. And you have been

authorized by the ladies and gentlemen of the jury to return a verdict on their behalf, and it is unanimous, is that correct? THE FOREMAN: THE COURT: Yes, sir. Okay. If you would give

Miss Labuzzetta, please, the verdict form, we'll proceed in the same fashion that we did on Friday. I will review it for form and substance. (The verdict was reviewed by the Court.) THE COURT: Okay. It is in order. If you

would return this please to Mr. Bridges, I would appreciate it, Miss Labuzzetta.

596 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 Okay. Mr. Bridges, if you would rise please? THE CLERK: Mr. Bridges, on behalf of the

jury, Count II, commission of an offense while on release, how do you find as to the defendant Shane C. Buczek on Count II? THE FOREMAN: THE COURT: Guilty. Okay. Mr. Bridges, is that

the verdict that you were authorized to make in open court on behalf of all of the members of the jury? THE FOREMAN: THE COURT: Yes, your Honor. Okay. Thank you. We will

accept the verdict form.

The verdict is unanimous.

Is there anything additional, Miss Baumgarten? MS. BAUMGARTEN: THE COURT: MR. BUCZEK: No, your Honor. Mr. Buczek?

All right.

Judge, I'll just put non

consent to the verdict based on the ratification of commencement Rule 17(a). And also another issue I

just found out over the weekend is there seems to be no concurrence form that twelve people concurred on the indictment, and also the large issue, as I was speaking to Brian, is I think it was Rule 29 and there is a -- we'll address that at a later time, Judge. But at this time the defendant does

597 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 consent to the guilty verdict. THE COURT: Thank you. Over that

Okay, Mr. Buczek.

objection though the verdict will be recorded and entered in court. case. Ladies and gentlemen, I want to thank you for your service. I know that you had to interrupt It is now dispositive of this

your work schedule and your daily schedule both last week and launching this week as well. that is very much appreciated. But

Being a juror, I

hope from your standpoint, was a positive experience. Frankly, the case is a little bit

different type of case, but -MS. BAUMGARTEN: Might we call the

alternate back, Judge, if you want to thank -THE COURT: She's already here. I'm sorry, I didn't

MS. BAUMGARTEN: realize that, Judge. THE COURT: put her in the seat.

And actually we could probably Miss Alexander, do you want And I think they

to come on up and join the jury? still remember who you are.

Probably been taking lessons from Mr. Humann, she sits behind the bearing column so that I couldn't see her fully. If you go right through

598 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 gate please, Miss Alexander. And I want to

thank you as well, you're the alternate juror, and that's never an easy task, because you fill a utility role. You don't get to do, after all your

hard work, the deliberating, and although that's very difficult. I hope from both the jury's

standpoint and yours and the alternates that it was a positive experience for you. I mentioned to you early at the outset how critical and important jury service is in our system. I mean, we are one of the very few

countries in the world that has this type of system, and what it does is allows all individuals of all beliefs of all types to get a resolve whether the persons agree or disagree with the outcome of the case. At least it presents a forum

where individuals, peers, can work together to hear evidence, apply the rules, try to reach unanimity, and resolve the case, and then the process still has light after the return of a verdict, but at least at this level the case is concluded. And

it's a tremendous part of our system to have juries and jurors and the opportunity to resolve a case that cannot otherwise be resolved. very, very difficult. It's sometimes

But the system I think is an

599 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 invaluable one. invaluable. We really appreciate the effort that you made, especially coming back today. difficult. I know that was very Hopefully the experience has been

You worked hard on Friday, and you

know, not everybody's happy with a verdict like this in a case. But, you know, doing the right

thing from your standpoint is difficult, and doing right is almost always difficult, and it's always more meaningful. Sometimes when you work hard to

accomplish a result -- and you did accomplish something, you did come back and you did render a verdict by all accounts, it is unanimous, we're very appreciative of that. admirably. There are a couple of things that you should know in closing. If you get a chance, what I I'm on You conducted yourself

always do is try to speak with the jurors.

a real tight schedule today, but if you can stay around for five minutes -- you don't have to. not personally offended. I'm

Oftentimes jurors have

had more than enough of me, so they bolt out of here like lightening. If you would like to stay,

I'll just ask a few questions or answer a few questions, whatever the case may be, and further

600 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 thank you for your service, because we profoundly appreciate what you have done. Your foreperson's

service, thank you for serving in that capacity. Now, it is under the rules allowable for you to be asked for responses to questions by attorneys or individuals associated with the case, the defendant. questions. But you don't have to answer the You will be given access to leaving the

building carefully and quickly, and we do that with all juries. But if you choose to answer any

questions, keep in mind that your responses -- and the attorneys know what they cannot ask you. They

can't get into things like the deliberative process and what was involved and that kind of thing. Maybe what you thought of the attorneys or what you think about somebody, how he did something or she did something, that's generally the questions that can be approached. do it with courtesy. But if you choose not to, just If you choose to answer a

question, remember that you're answering for your fellow members of the jury. And your response

should take into account your courtesy to them. And the manner in which you conduct yourselves as jurors does have a bearing on all future juries, because your responses get incorporated into the

601 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 whole realm of jury service, so please keep that in mind. I want to thank the attorneys and Mr. Buczek for the professional manner in which they have conducted themselves during the course of this trial. I hope you are satisfied with the system,

and we won't see you for a good long time, because you fulfilled your obligation as jurors, but I think you have a more expansive knowledge now of what goes into the system. comparatively short case. This was a Sometimes probably

seemed long, but cases can go on for weeks and months and sometimes more than a year. I mean, you

can imagine what kind of an experience that is. But I hope you feel good about what you contributed. We certainly do.

I want to thank the court security officers for and my staff for contributing as well. you. Please have a safe trip home. We thank

Thank you for

your service, and any of you that want to stay for a few minutes, I'll see you in five or ten minutes. Thank you very much. (Jury excused from the courtroom.) THE COURT: Okay. I thank all of you. I

wanted to thank you in front of the jury, because I

602 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 think you did comport yourselves with the highest degree of professionalism. Anything from the government? MS. BAUMGARTEN: Yes, your Honor. At this

time the government moves to ask the Court to detain the defendant pursuant to Title 18, United States Code, Section 3143(a), your Honor. defendant -- (a)(1) actually. The

The defendant has

been convicted not only of the substantive offense in Count I of the indictment, but also Count II, your Honor, having committed that offense while he's on pretrial release. At this point, your

Honor, while we don't enjoy a presumption based on the nature of the charge, we do ask that the defendant be remanded pending further proceedings, not only with respect to this case, but also the two other trials that are currently scheduled before this Court. While the defendant enjoys a presumption of innocence with respect to those, your Honor, at least as to the, as I understand it, the third trial, it's similar sort of conduct in that it relates to the defendant's -- at least the charges in that case relate to the defendant's failure to abide by conditions of release. That occurred not

603 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 only in this instance, your Honor, but also in that while he had not been convicted. So at this point,

your Honor, we ask the Court to remand him. THE COURT: MR. BUCZEK: THE COURT: MR. BUCZEK: I'm going to say. THE COURT: I don't really, but I'll give Okay. Judge I -Go ahead. I think you already know what

you the opportunity, Mr. Buczek. MR. BUCZEK: Judge, in this particular

case that we just had -- actually now it's been two cases -- there's been no injured party, there's been no damaged party I should say. The alleged

debt I believe was $8,800, which the defendant believes was paid for under a bonded promissory note. Maybe it was misguided from other seminars In past the Court has

that have taken place.

released people on issues like this for issues concerning in the millions of dollars, if I am correct on that, pending sentencing. missed a court date. I've never

I bet you I've been to about Here

a hundred court dates in the last five years. probably 40 times in the last two years. once have I missed a court date. Never

I am preparing

604 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 my trial on April 4th, that's coming up, in 2010, the passport case, and working on subpoenas as we are talking right now. I'm also

preparing for eyewitnesses to come in and working along with the public defender's office right here, Brian. And I also want to just on and for the

record, Judge Schroeder already said on page 30 that I am not a threat to the United States government at all. And that's on page 30 I'm

August 20th, 2009, line 21, that he says that. not about to bring down the United States government, that's my finding ending at line 23. have a copy of that, Judge, and I won't get into deeper into that, but -THE COURT: MR. BUCZEK: THE COURT:

I

Well, let me put this aside. Yes, Judge. All right. Mr. Comerford,

anything more you want to say on that? MR. COMERFORD: THE COURT: No, your Honor. All right. Mr. Buczek,

Okay.

I mean, I've considered the government's argument, I've considered yours. I don't consider you to be I

a risk of flight or a threat to the government. will continue you on the release conditions that you're on right now. I think in part it's

605 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 necessary to enable you to adequately prepare for your upcoming trials, and -- however, you will have reporting requirements to make sure that everything remains copacetic, and I'm giving you the benefit under the circumstances, and I believe that you have satisfied me and the burden requirement that you are not a risk of flight or harm. MR. BUCZEK: And I just want to make a

record that I strongly, strongly, strongly urge the Court to do -- I think it's called a mistrial. I'll reserve it for another time. And I am -- I

am -- I can't begin to tell you how -- and I don't want to make it -- be emotional about it, not only am I innocent, but maybe possibly I was misguided in my administrative work. Should that be a crime, Because in my mind Maybe you might

Judge, with no injured party?

you know I don't have no intent.

understand, maybe the government understands, but there's definitely no intent. THE COURT: Okay. Thank you.

Check with

Mr. Comerford about the Rule 29 and Rule 33 motion. MR. BUCZEK: THE COURT: Thank you, Judge. Okay. But your record -- the

record will so reflect that. MR. BUCZEK: Thank you.

606 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 15th. MR. BRUCE: I was just going to suggest, THE COURT: datewise, anything? THE CLERK: sentencing date. You would have to set a Okay. What do we have to set

I was going to suggest the

next -- the final pretrial is for the 15th of March that we discuss it then. THE COURT: Okay. We'll do that on the

Judge, we adjourn sentencing date until after the second trials. THE COURT: Let's talk about that again.

I think that's probably a good suggestion, but we'll talk about it on the 15th. MR. COMERFORD: We agree it's a good

suggestion, Judge, and we'll take it up then. THE COURT: Again I thank all of you, and

then we'll proceed forward. MR. BUCZEK: April 4th? MR. BRUCE: THE CLERK: THE COURT: I thought it was the 6th. April 6th. 5th is the final conference I think the Are we still on for

and 6th is the trial date, right? 6th is the trial. Okay.

607 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 problems. MR. BUCZEK: That's enough. I don't want

to hold you up anymore.

I would like to talk to

you, but, you know, I wish I could, but -THE COURT: live by the rules. release. But the rules. But be careful. So, you know, You're on Review

There are specific conditions.

the release conditions with the probation office just to reinforce them so that, you know, we don't wind up with more problems than we need. MR. BUCZEK: Judge, there won't be any

It's just that I have a certain belief I will save it

system that I'm not a U.S. citizen. for later.

I didn't have the opportunity to

reflect on that during the trial. THE COURT: MR. BUCZEK: THE COURT: Okay. All right.

Thank you. Okay. Thank you. Thank you, Judge. * * *

MS. BAUMGARTEN: * * *

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

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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