Fifth Day: Jim Bell Trial Before the jury came in, Bell stood up and told the spectators that his attorney had relayed a threat to him from the US government. The threat was directed at him and six members of his family, he claimed. On Sunday, he said he tried to call 20 attorneys on the unmonitored attorney line at the Seatac Detention Center. He also asked spectators to call Jonathan Solovy, 206-621-8777. The jury was shown in and Bell took the stand again. Bell had been quite affable, friendly, and forthcoming in his testimony on Friday. In his testimony today, he was visibly upset. His answers to questions posed by his own attorney were considerably less fluent, sometimes poorly constructed and, too often, not well thought out. Upon taking the stand, Bell turned to the jury and told them that his attorney had made threats against him. Some of the jury looked visibly shocked. Despite this, Leen started asking Bell to explain why he was trying to find Mike McNall. Bell said that he wanted to talk to him about Ryan Lund. His research indicated that Lund was a government informer. McNall was the only named agent involved in the search of Lund's home in 1997. Leen himself was more abrupt with Bell. While Leen (and Tanner) had allowed Bell to expound at length on Friday, on Monday Leen interrupted Bell more frequently, cutting Bell's answers short. Tension was evident in Leen's voice. Bell said that the end result of his research would be to report his findings to reporters John Branton at the Vancouver Columbian and John Painter at the Oregonian. Leen asked Bell about the fax that Bell sent in October, 2000, to Jeff Gordon at his office. In the fax, where Bell was trying to arrange delivery of his firearms to a qualified third party, he told Gordon that he could pick them up at Gordon's office or swing by Gordon's home. That he mentioned coming by Gordon's home was the basis of Count 3 of the indictment. Leen quizzed Bell about Count 4, based on Bell's action of driving to Bend, Oregon, to check out what he believed to be a potential CIA operation. Bell wondered if the address listed in the .gov domain database was commercial or residential. Bell addressed the Count 5 charge, where on November 10, 2000, he left a note on the Groener's cars to call Branton. Bell said that he was familiar with the law enforcement trick of arresting someone on a Friday, so that they would be in jail and isolated through the weekend. Since his home had been searched the previous Monday, he expected that he would be arrested that Friday. So he drove down on Thursday night to leave a note for the only people that he'd actually contacted during his travels to try to get Branton to follow up on the McNall connection. Concerning the "say goodnight to Joshua" email, Bell said that he wanted to turn the tables on those that he believed were closely monitoring him, proving that he could monitor them as well. (Joshua is the son of a Jeffrey Gordon, not the IRS agent). Bell said that he was convinced that federal agents had monitored him from two houses in his neighborhood, putting a small camera on one neighbor's house. When talking about the Gordons, Bell admitted that he had stolen the mail from the Gordons' mailbox. (He did this without prompting from his attorney; later his attorney told reporters that this had been quite a surprising revelation.) Bell said that he wanted to further prove that his house was being watched. He spoke of an incident where he stuffed some newspapers in his home's fireplace insert and lit them in plain view of a large picture window. During the subsequent raid a few days later, agents asked Bell's mother if they could take a sample of ashes from the fireplace, though no such item was on the search warrant. Bell believe that this confirms surveillance from a neighboring house. Mr. Leen said he had only one more. Bell spoke loudly: "Mr Leen, you do not represent me at this point." Bell said that he had six more hours of testimony, naming names, dates, incidents, and places where government agents had done surveillance on him. Leen asked: Have you committed any crimes? Bell: "Other than the incident with the mail and traffic, certainly not!" On cross-examination, London asked Bell if he thought he had committed any crimes. Bell responded by saying that he no longer had representation, and that he reserved 5th amendment rights. Tanner asked the jury to leave the room. He asked Bell: "Do you intend to voluntarily answer some questions from the government?" Bell said that he would. Leen moved for a mistrial, and asked for a psychiatric exam. Both motions were denied. Leen moved to withdraw as attorney. Also denied. The jury was recalled. On questioning by London, Bell stated that he had a right to use the DMV database both as a first amendment issue and as a protective measure. London asked what Scott Mueller had to do with protecting himself. Bell responded it had nothing to do with it, that he was just checking out information. London angrily demanded "How is it any of your business to take personal information and publish it? To out Mr. Mueller or anyone else as a CIA agent on the internet?" Bell defiantly replied: "It's not MY business." He said that he answers a lot of questions on the internet, and that he was merely curious. London brought up a form that the DMV database vendor normally has people sign when purchasing the database. Bell said that he certainly made no promise to the vendor that he would use the database only for commercial purposes. London introduced a document that shipped with the database, a blank agreement to that effect. Apparently Bell had never signed such an agreement, which in earlier years had not been required. London mentioned Bell's conviction in 1997 on obstructing IRS laws by collecting the addresses of IRS agents. Bell replied that most of the 1997 plea agreement, where he agreed with such statements, was not true because he signed the agreement because he had been threatened by two people, Billy Martin and Valdez Maxwell. [Bell's attorney sank lower in his chair at this point; he was probably dismayed by his client's apparent self-destruction.] Bell went on to say that Leen had conveyed a threat by Maxwell to him, and that Leen didn't want Bell to talk about surveillance in today's testimony. Bell said that furthermore, he had been denied access to evidence. (This was a valid claim by Bell; Tanner had issued a court order that while Leen could view prosecution evidence in pre-trial, Bell was not permitted to see it.) London had Bell confirm a number of inflammatory emails written in 1996 about "Operation Locate IRS." Bell continued to say that he couldn't be sure about the evidence, since he'd been denied access to it. Asked if he had been accurately quoted in the Wired articles, Bell replied that he believed that McCullagh had accurately quoted him. London asked Bell why he didn't file a motion to overturn the guilty plea? Even though he's filed pro se motions in this case? Bell replied that he didn't know that he could do that. The jury recessed for lunch. Tanner took a few minutes to chew out London for leaving the podium in the middle of a question. London had frequently moved from the podium to the prosecution table to confer with Gordon during the proceedings, and Gordon often whispered in London's ear information or questions that London appeared to repeat when he went back to the podium. The court recessed for lunch. When the jury returned, London asked about the "Joshua" email. Bell said that he posted the email to "test" whether agents had been following him. He said that he didn't post the (other) Gordons' address to cypherpunks because it wasn't necessary. London pointed out that Bell did not use the words "research" and "investigate" in some email that London read to the court. Bell asked if it was necessary to mention those words in each and every email to validly investigate. When London asked Bell if he understood the difference between a "duly sworn law enforcement officer" and himself when it came to investigation, Bell said that he investigated "because somebody has to do this." Bell became increasingly defiant to London as the questioning progressed. London asked what Bell did with the mail. After visiting the Gordons, Bell said that he started home, stopping at a McDonald's on the way. There he opened the mail, copied some information into his notebook, and tossed the mail into a McDonald's trash can. Bell was dismayed by the reception that he got from reporters. He said that Branton seemed totally uninterested in his story, and that he had no luck interesting other people, including Declan McCullagh, in investigating the story, so he had to do it himself. "Sometimes you have to take things into your own hands." London asked Bell what he intended to do when he found Gordon's home address. Bell said that he was going to picket Bell's home, and said that picketting was a time-honored method of protest. Why not picket him at his office at the federal building in downtown Portland? Bell responded that picketting outside such a big office building was ineffective. London then asked about the concept of "plausible deniability" that had occasionally been discussed on the cypherpunks list. Bell tried to explain the concept, but appeared emotionally strained and did not give a clear explanation. London then asked Bell about the financial affidavit that Bell filled out prior to getting a court-appointed attorney. Bell said that he didn't have an attorney, that Leen no longer represented him. Leen objects to London's line of questioning anyway on the grounds that it wasn't relevant to the case. Denied. London said that Bell did not disclose all sources of income. Bell had a trust account maintained by Jay Marvin Benson, and received distributions of $2,000 per month during summer, 2000. The trust owns 1,852 shares in the Templeton Emerging Markets Fund. The jury was sent out. Bell said that he declined to answer because he's not represented, and took the fifth amendment. Leen objected, saying that the matter of Bell's affidavit was a collateral matter. Tanner asked London: "Isn't this beyond the scope of this examination?" London said that the affidavit concerns Bell's credibility and that he had committed perjury. Tanner: "Isn't that a separate charge?" London: "Not yet." Tanner said that London couldn't bring it up because it was not direct examination and upheld Leen's objection. The jury was brought back in; Bell left the stand; the jury was dismissed for the day. London and Leen then wrangled over the instructions Tanner would give to the jury the next day. London proposed changing instructions for counts 1, 2, 4 and 5 to strike the words "injure and" from "crossing state lines to injure and harass." He said that he believed at the start of the trial that the government could prove intent to do injury. Leen wanted to include an instruction that speech which did not cause immediately lawless actions was covered by the first amendment, that investigation was covered by the first amendment. He cited the recently overturned 9th District Planned Parenthood case. London argued against including that instruction because Bell didn't just engage in speech, he took actions to find agents home addresses and post them to the internet. Tanner asked: "Isn't that free speech?" London said no, and said that whether Bell was engaging in free speech was a pre-trial matter, not for the jury to decide. Leen cited Aguilar and other cases that ruled that first amendment decisions are at the discretion of the jury. Tanner said that the first amendment argument could be invoked only if supported by the facts of the case. Leen argued that the Common Law Court was a political body, and that Bell was exercising his freedom of speech when he talked about AP at their meetings. Tanner asked him what the difference was between the cases where people killed abortion doctors and Bell's case. Leen said the difference concerned the right to protest. Tanner: "Protest by committing illegal acts?" London spoke up, saying that Bell could be charged because he trespassed on private property and stole mail. And he crossed state lines. Tanner asked if he knew of any cases at the appellate level, specifically the 9th circuit, that dealt with the consitutionality of the statutes under which Bell had been indicted. London said that there were no cases in the ninth circuit, but the statutes had been found constitutional in the fourth and eighth circuit. In response to London's statement that Bell trespassed on private property and stole mail, Leen said that neither the Gordons nor the Groeners were part of the counts. Mr. Bell's intent was not to harass, although Mr. Bell was unstable. "You have to take Mr. Bell as you find him." Leen said that Bell's intent fits in with his political views. London reiterated that the first amendment has never been used to justify trespass or mail theft. Tanner disallowed the first amendment instruction. Then he took up the matter of perjury: Was it a question of law or a question of fact. He said that it wasn't up to his court to decide it, and that it would have to be addressed by the district attorney. Leen asked the court to put in an instruction to find specific intent. London argued against that, saying that the ninth district disfavors specific intent. Tanner denied. Leen asked the judge to include an instruction that the jury not hold it against the defendant for invoking the fifth amendment. The judge said it would be included. Leen moved for dismissal based on unconstitutionality of the laws, and invoked Rule 29. London argued that the faxing took many deliberate actions. Tanner denied. London pointed out to the judge that although the defendant claimed to be unrepresented, he continued to confer with counsel throughout the afternoon. Court adjourned. Free, encrypted, secure Web-based email at www.hushmail.com