Trial Day 1: May 5, 1998
1 United States District Court
2 For the northern district of California
3 San Jose division
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5 Religious Technology Center, ) case nos. C-96-20271 rmw
A California non-profit ) C-96-20207 rmw
6 organization, )
) San Jose, California
7 Plaintiff, )
) May 5, 1998
8 Vs. )
) Pages 1-93
9 H. Keith Henson, an )
Individual, )
10 )
Defendants. )
11 _____________________________)
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13 Transcript of proceedings
Before the honorable Ronald M. Whyte
14 United States district Judge
15 appearances
16 for the plaintiff Paul, Hastings, Janofsky & Walker
By: Samuel D. Rosen, Michael Mervis
17 399 Park Avenue
New York, New York 10022
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Law offices of Thomas R. Hogan
19 By: Thomas R. Hogan
60 south market street, suite 1125
20 San Jose, California 95113
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22 reported by: Lee-Anne Shortridge
Official court reporter, USDC
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24 Appearances continued on next page
25 Computerized transcription by stenocat
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1 appearances (con't)
2 for the plaintiff Law offices of moxon & Kobrin
By: Helena K. Kobrin
3 6255 Sunset Boulevard, suite 2000
Los Angeles, California 90028
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5 for the defendant Berry, Lewis, Scali & Stojkovic
H. Keith Henson By: Graham E. Berry
6 One Wilshire boulevard, 21st floor
Los Angeles, California 90017
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1 Tuesday, May 5, 1998
2 The Clerk: Calling case c-96-20271, religious
3 Technology Center versus Keith Henson.
4 Counsel, please state your appearances for the
5 record.
6 Mr. Rosen: For Religious Technology Center,
7 Samuel D. Rosen and Michael Mervis from Paul Hastings.
8 Mr. Berry: For defendant, H. Keith Henson,
9 graham Berry.
10 The Court: All right. What I want to go over this
11 morning with you is the preinstructions that I intend to give
12 and see if there's any objection to them. The only one that is
13 not basically a form instruction is number two.
14 Secondly, I want to finalize the in limine motions.
15 And three, I want to discuss briefly the offer of
16 proof that was submitted by Mr. Berry.
17 And then hopefully we will have, by the next 45
18 minutes or so, the juror questionnaires so that we can go over
19 those and determine which jurors that we want to have up,
20 actually come to the courtroom for jury selection.
21 Mr. Rosen: Your Honor, may I raise one preliminary
22 thing?
23 The Court: Yes.
24 Mr. Rosen: A few moments ago, we were handed an
25 affidavit of Mr. Berry, which I understand he's just filed with
3
1 the court, you may not have even seen it yet, and it's an
2 affidavit that he does not have any copies of NOTs 34 in the
3 material that Mr. Henson had sent to him.
4 And more critically perhaps, that Mr. Henson never
5 told him of your order that he was supposed to file the
6 declaration by the 29th of April.
7 On the basis of that declaration, we will, accepting
8 Mr. Berry's statement as true, we withdraw the motion for
9 contempt that we filed as against Mr. Berry.
10 However, Mr. Henson, the aspect of the motion
11 against Mr. Henson remains viable. He still has not filed any
12 affidavit.
13 And number two, I think according to Mr. Berry's
14 declaration, Mr. Henson has perhaps been guilty of an additional
15 violation of the order, and my reading of the transcript was
16 that you instructed Mr. Henson to tell Mr. Berry to file the
17 declaration.
18 And accepting Mr. Berry's word that Mr. Henson never
19 told him to do that, that is an additional violation.
20 And if your Honor wants us to withdraw by way of a
21 written document the portion of it as against Mr. Berry, I will
22 be happy to do so.
23 The Court: All right. I will consider that portion
24 withdrawn.
25 Mr. Berry: As against Mr. Henson, your Honor, I've
4
1 reviewed the actual order. There's no reference to a
2 declaration in the order, and Mr. Henson will be filing his own
3 declaration sometime this week.
4 The Court: If I recall, and I would have to review
5 the transcript myself, when Mr. Henson was here, I did order
6 him, and if I recall, he agreed, to file a declaration with
7 respect to his possession of any copies of NOTs 34.
8 I don't want to get into it now, but it is my
9 recollection, which could be corrected by the record, that he
10 did, in fact, indicate that he would do that, and I think he's
11 passed his deadline for doing it.
12 Mr. Berry: He can actually state on the record now,
13 your Honor, whatever he's done as far as that is concerned and
14 what he has just recently found.
15 The Court: All right. I want a written
16 declaration.
17 Mr. Berry: Very good, your Honor.
18 The Court: All right. Have you had, and you may
19 not have, if so, I'll turn to something else, an opportunity to
20 look at the proposed preinstructions?
21 Mr. Rosen: I'm up to the third page.
22 The Court: Okay. Why don't we go on and discuss
23 other things, and then I'll give you a break to look at that
24 further.
25 With respect to the in limine motions, motion number
5
1 one by RTC was to preclude evidence of alleged Scientology
2 practices and beliefs and the disclosure of the content of the
3 infringed work.
4 I've looked at this further in light of what was
5 said last week and done some further thinking myself. The
6 motion to preclude evidence of alleged Scientology practices and
7 beliefs, I believe, is meritorious for the reasons that I stated
8 last week with the understanding, or exception, that that does
9 not preclude evidence as to Mr. Henson's state of mind as of the
10 time of the March 30 posting as to whether he, in good faith,
11 had a reasonable belief that what he was posting was not covered
12 by copyright.
13 It also does not preclude cross examination of an
14 RTC witness with respect to a matter that would go to that
15 witness' possible bias.
16 For example, there has been some reference to there
17 being an alleged tenet, t-e-n-e-t, of the Scientology belief
18 that authorizes less than candor in court proceedings.
19 If, in fact, that question could be asked in good
20 faith, in other words, the defense has some good faith evidence
21 that that's the case, I think the question as to whether or not
22 the witness was a Scientologist and whether that was, in fact, a
23 tenet of Scientology belief would be an appropriate question
24 going to possible bias.
25 What I want to make very clear, and what concerns me
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1 a great deal from the purported offer of proof that Mr. Berry
2 filed, is that this is not a case about whether or not
3 Scientology practices are good or bad, and we're not going to
4 turn the case into some sort of trial on whether or not
5 Scientologists are good or bad people or have proper or improper
6 beliefs or have done good or bad things in various parts of the
7 country.
8 Mr. Berry: Your Honor, I --
9 The Court: Or in other countries.
10 Mr. Berry: I assure you that's not my intention.
11 It is the state of mind.
12 And I would add that I would submit, your Honor,
13 that Mr. Henson's acquisition of knowledge about these things
14 after he posted would be relevant to the extent it shows the
15 confirmation of his good faith belief at the time.
16 The Court: I don't buy that, and we'll talk about
17 that further later.
18 That's just going to get into -- if you're going to
19 allow him to testify as to what his state of mind was sometime
20 after the posting, and if this was confirmation of some sort of
21 good faith belief, then we're going to get into Scientologists
22 wanting to offer evidence as to whether or not information he
23 received is information that accurately portrays Scientologists.
24 It would turn into a circus, and we're not going to have that.
25 Mr. Berry: Your Honor, then I would ask that the,
7
1 that the sauce of the goose be sauce for the gander and evidence
2 as to Mr. Henson's own conduct after the posting also be
3 excluded.
4 The Court: Well, that's a little different issue,
5 but RTC has got to be careful as to what they open the door for.
6 Mr. Rosen: Your Honor, can I address the point you
7 made a moment ago?
8 I understood you to say that Mr. Henson can offer
9 the good faith belief that he, that the copyright was no good or
10 he was not infringing it.
11 Mr. Henson apparently believes that from a posting
12 he made recently, which I think we submitted yesterday, that
13 that allows him to relitigate the issue of his belief that NOTs
14 34 constitutes the illegal practice of medicine, and as I
15 understood your Honor's ruling, he can testify to a good faith
16 belief that the copyright was invalid, not that he was
17 privileged to ignore the copyright in the point of what he
18 perceived as a different purpose or higher purpose, and I would
19 ask your Honor's clarification on that.
20 And then I will also ask your Honor for leave to
21 address one thing that you said, one additional thing you said,
22 and that is the cross examination of, in terms of trying to
23 impeach credibility of RTC's witnesses.
24 But perhaps I should save that and ask you to, if I
25 may, to please clarify and confirm with Mr. Henson so we don't
8
1 have any mistakes from the witness stand as to what he can and
2 cannot offer.
3 The Court: Well, I generally think, and based on
4 what I know at this point, it's going to cut both ways, that
5 when you're talking about willfulness and the amount of
6 statutory damages that should be awarded, that Mr. Henson's
7 state of mind and reasons for posting, at the time he did it,
8 are relevant.
9 So it seems to me that he can tell us why he posted
10 the material and you can cross examine him on it.
11 Mr. Rosen: And he can try and put before the jury
12 what your Honor has already rejected as a matter of law, and
13 that is that he did it because he thought it was criminal? I
14 think that's extraordinarily prejudicial, your Honor.
15 The Court: He can set forth the reasons that he did
16 it, and the jury is going to be instructed that there is no fair
17 use defense. It's in the preinstructions.
18 Mr. Rosen: But your Honor, my problem is this. If
19 he's allowed to even offer that he believed it was criminal, the
20 very issue that has already been resolved, then we're obliged to
21 put in evidence --
22 The Court: I didn't resolve that it wasn't
23 criminal.
24 Mr. Rosen: In terms of the fair use, that that was
25 not a defense. I apologize for speaking in shorthand.
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1 The Court: Right.
2 Mr. Rosen: If he's permitted to do that, we have to
3 put on evidence to show it's not criminal, that he could not
4 have had any possible good faith belief, which gets us into the
5 discussion last Thursday that there's both objective and
6 non-objective reasonableness. And I'm prepared to argue --
7 The Court: Well, the reasonableness would be would
8 it be reasonable to a person with the information that
9 Mr. Henson had at the time he posted? That would be the
10 question.
11 Mr. Rosen: I don't believe so. I believe the
12 reasonableness is an objective standard.
13 The Court: It's objective based on the information
14 that he had available to him at the time.
15 Mr. Rosen: My only disagreement with that, your
16 honor, is, respectfully, that it includes the available, the
17 information that was available to him that he didn't get, like,
18 for example, asking a lawyer.
19 The Court: Right. You could ask him that.
20 Mr. Rosen: But that will mean we're going to have
21 to be litigating that issue of the belief and the subjective and
22 objective, and my position, as I indicated last Thursday, is I
23 think he -- there is no -- he cannot satisfy the objective test
24 as a matter of law.
25 The Court: I think there's a substantial question
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1 as to whether he can, but I think it's an issue in the case at
2 this point.
3 Mr. Rosen: Okay. If I can address one other thing,
4 your Honor, the credibility and the use of what has been
5 referred to by shorthand as Fair Game?
6 Let me tell you what the facts are and what my
7 concern is. RTC is going to have one witness on its case in
8 chief. That's going to be Mr. McShane. Mr. McShane is going to
9 testify to whatever he testifies to.
10 The cross examination is going to go like this if i,
11 if my experience with Mr. Berry is correct. He's going to ask
12 him whether he's ever heard of Fair Game, then he's going to
13 read it to him, and then he's going to say, "aren't you obliged
14 by that, as a practicing Scientologist, to lie" or do whatever
15 the characterization of that.
16 After he gets through with that, it will then come
17 out, and I'm prepared to hand it up, the following facts. The
18 policy that Mr. Berry is referring to was specifically withdrawn
19 in 1968 by Mr. Hubbord, it was posted as withdrawn, there is an
20 affidavit of Mr. Hubbord explaining why it was withdrawn, and
21 Mr. McShane didn't even become a Scientologist until 1973.
22 So what Mr. Berry's proposition is is that a policy,
23 even if you take his characterization of it, which existed five,
24 which was withdrawn five years before this witness became a
25 Scientologist, can be somehow put before the jury to suggest
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1 that this witness is lying is terribly unfair.
2 And based on that, your Honor, I'm prepared to hand
3 up both the posting of the document that is referred to as fair
4 game, the posting withdrawing it, and the affidavit of
5 Mr. Hubbord explaining why it's withdrawn, all of which are
6 before 1973 when Mr. McShane became a parishioner.
7 On that basis it would be -- by the time we got to
8 the answer, which is that Mr. McShane is not under this policy,
9 and indeed never was under the policy, the damage will have been
10 done. Mr. Berry will have already had an opportunity to read
11 Fair Game to the jury, what's the question, and to implicitly
12 suggest the Fair Game to the jury in the context of cross
13 examining.
14 That is not proper cross examination in my view,
15 and I think if Mr. Berry wants to try and do this, the first
16 question he should be obliged to ask Mr. McShane is, is he under
17 any policy of Scientology to lie. And as your Honor said last
18 Thursday, if the answer is no, Mr. Berry must accept it.
19 The Court: I don't think I ever said that. I
20 raised that question.
21 Mr. Rosen: Fair enough. But my point is if it's
22 being offered for credibility and cross examining a witness,
23 then start at the beginning, which is whether or not this
24 witness is bound by this policy.
25 The Court: I would like to look at that document
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1 you're talking about.
2 What's your position, Mr. Berry?
3 Mr. Berry: Your Honor, I'm not intending to proceed
4 the way Mr. Rosen suggests. We've never been in a trial
5 together.
6 But I do suggest that the court has just heard a
7 blatent misrepresentation. I don't have a copy of Fair Game
8 here with me, but numerous California courts, and other courts,
9 in the 1980's, the armstrong case being one, the Wollersheim
10 case being another, the christofferson case being another, have
11 held, despite what counsel has asserted, that Fair Game existed.
12 The jury found it existed and they awarded damages in one case
13 of 30 million dollars against the church.
14 So what counsel says is technically correct. The
15 policy was never, was always intended to apply to the handing of
16 suppressives, it was canceled as to Scientologists, it was not
17 canceled as to the handing of suppressives, and the courts have
18 consistently found thereafter that it still applies, juries have
19 come back with verdicts that it applies, and this court is not
20 being told the full story.
21 The Court: What is the cross examination that you
22 would intend to -- how would you go into it?
23 Mr. Berry: I have to, first of all, your Honor, see
24 what the direct comes out as. There may be no basis to go into
25 it at all. Depends on what comes out.
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1 The Court: All right. Let's do this. I think what
2 makes sense on this is following Mr. McShane's testimony, I will
3 take up with you, outside the presence of the jury, we'll
4 schedule it at a time that's other than jury time, anything
5 along those lines that Mr. Berry intends to get into so that we
6 can deal with it outside the presence of the jury.
7 Mr. Rosen: Your Honor, if it's at all possible, and
8 not disruptive of the trial, I would respectfully request it be
9 taken up before, because it may make a difference as to whether
10 I call Mr. McShane. This is potentially terribly prejudicial
11 material.
12 The Court: But I don't think it's fair to force
13 someone to reveal his cross examination prior to the hearing of
14 the direct, and it seems to me that -- I don't know what he's
15 going to get into on direct examination.
16 Mr. Rosen: Yeah, but this is not an issue which
17 goes to any of his testimony directly. This is general
18 impeachment. Mr. McShane is not going to be asked anything
19 about Fair Game on direct or whether there were any policies or
20 what the policies or tenets of RTC are.
21 We have already said, and your Honor has said, this
22 is not a case where we're trying a religion. This is a case
23 where he's going to be asked about injury to RTC. He is not
24 going to be asked any question relating to, or to give Mr. Berry
25 an opportunity to ask these kinds of questions on cross.
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1 This is a general impeachment regardless of what
2 Mr. Berry testifies to. May I hand up this document?
3 The Court: You can hand those up, yes.
4 Mr. Rosen: (Handing.) I forgot the policy
5 (handing).
6 Mr. Berry: Could I ask counsel for a copy as well
7 while the court is reading it?
8 The Court: Yeah, I think it's appropriate that he
9 sees a copy.
10 Mr. Rosen: We're getting one.
11 (Pause in proceedings.)
12 The Court: All right. I'll come back to that in a
13 minute.
14 With respect to the motion to preclude the testimony
15 of the trial witnesses that were listed by Mr. Henson, I think
16 we covered that last week. Those witnesses are precluded based
17 upon the offers of proof as i, for the reasons I indicated last
18 week.
19 If, however, something they have to say becomes
20 relevant based on RTC's representations, obviously the defense
21 can notify me outside the presence of the jury as to why it's
22 become relevant and why the witness should be allowed, but that
23 seems pretty unlikely given my understanding as to what the
24 witnesses would testify to and what the evidence is going to be
25 in the case.
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1 Mr. Rosen: Your Honor, going back to number one for
2 a moment, did you rule on whether NOTs 34 can be shown to the
3 jury?
4 The Court: Oh, I'm sorry. Thank you for reminding
5 me.
6 With respect to the disclosure of the content of the
7 infringed work, it does seem to me that the jury is entitled to
8 see what, in fact, was posted, so I am going to allow that to be
9 shown to the jury.
10 As I indicated last week, I think the way that
11 should be handled, if somebody wishes to offer it, is that the
12 jury be given a copy for their review during trial, that it
13 would not be read in open court, but would be presented to them,
14 and then it would be collected, as would other evidence, at the
15 end of the trial.
16 Mr. Rosen: Your Honor, does that --
17 Mr. Berry: May I ask --
18 The Court: One at a time. It's your motion,
19 Mr. Rosen.
20 Mr. Rosen: It's that issue that I raised, which is
21 the preliminary one, and that is that Mr. Henson designated no
22 trial exhibits, so it doesn't matter if it's NOTs 34 or
23 something else.
24 The Court: I'm going to allow it to be shown. I
25 just don't see your being prejudiced by that.
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1 Mr. Rosen: My prejudice is this. I have to then
2 have somebody explain what NOTs 34 really means, because
3 Mr. Henson's proposition, which in his posting of April 30th,
4 he's already told everyone what he's going to do, is he's said
5 that your Honor has allowed him to put NOTs 34 before the jury
6 and he's going to get on the witness stand and explain it. He's
7 going to explain what NOTs 34 means and why it's a criminal
8 instruction manual.
9 And then we're going to have to put on witnesses in
10 our case in rebuttal to say "that is not true, you don't
11 understand it, this is the way NOTs 34 is read, it is not a
12 criminal instruction manual."
13 I mean, your Honor, it would just --
14 The Court: Again, it's what was a good faith belief
15 on his part at the time he posted and based on the information
16 that he had available to him at the time. That's the issue.
17 Mr. Rosen: Very well, your Honor. We would just
18 note that we respectfully disagree.
19 The Court: I understand.
20 Mr. Berry: Your Honor, Mr. Henson does not have a
21 copy because he's turned them all over, with one exception that
22 he's going to get into in his declaration. Plaintiffs obviously
23 have one which they've redacted.
24 I think your Honor's suggestion last week was the
25 right one, which was produce the original posting which had
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1 within it the context and the entirety of the posting is before
2 the jury, and for that reason, I'd ask that the plaintiffs
3 produce the unredacted copy.
4 Mr. Rosen: I read an affidavit handed to me by
5 Mr. Berry saying that he has three copies in his possession.
6 Mr. Berry: I can produce them.
7 The Court: Wait a minute. One at a time.
8 The issue is what was posted. There is in existence
9 a copy of the March 30 posting. If that is -- if a party wants
10 to offer that posting, it can be offered. If you need the copy
11 from the court file, there's a copy that's available.
12 Mr. Berry: Thank you, your Honor.
13 The Court: It's just the posting from March 30th.
14 That's the posting on which the court granted summary judgment.
15 It has virtually no commentary with it.
16 With respect to the motion in limine to preclude
17 defendant from offering evidence of his alleged financial
18 condition, Mr. Berry, it's my understanding, from your previous
19 argument, that you intend, if allowed, to offer such evidence.
20 Is that correct or not?
21 Mr. Berry: Well, especially, your Honor, since on
22 Saturday morning, the plaintiff served on Mr. Henson personally,
23 at his house, after staking it out all night, a subpoena duces
24 tecum requiring him to produce all sorts of financial records
25 here at 1:30 Today. That leads me to believe that they're going
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1 to do something with his financials which they didn't pass
2 through me first.
3 The Court: I'm asking you, because from what I
4 understood last week, their only concern was that you offer,
5 were intending to offer, and you argued against their in limine
6 motion to preclude evidence of his alleged financial condition.
7 Mr. Berry: I would --
8 The Court: I don't think, and Mr. Rosen obviously
9 can correct me if I'm wrong, they have ever said that if you did
10 not intend to offer evidence of financial condition, they would
11 not offer evidence of financial condition.
12 Mr. Berry: Can I have one second, your Honor?
13 The Court: All right.
14 (Discussion off the record.)
15 Mr. Berry: Your Honor, we'll be offering evidence
16 from Mr. Henson that he cannot afford the sort of damages that
17 have been sought in the past and are still sought today by the
18 plaintiff.
19 The Court: Okay. Then I think evidence -- given
20 that one of the bases of determining statutory damages is
21 deterrence, it does seem to me that one's financial condition is
22 relevant. Therefore, if you're going to offer it, obviously
23 they can offer evidence on that subject.
24 But I -- that's why I wanted to confirm with you,
25 because it really came up because of an intent on your part to
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1 offer such evidence. It didn't come up because the plaintiff
2 was seeking to put in evidence as to financial condition.
3 The reason I asked the question is I wanted to
4 confirm with you that that was still your intent based on your
5 position last week. And if it is, I'm going to allow limited
6 evidence with respect to financial condition.
7 Mr. Berry: Thank you, your Honor.
8 The Court: I think that covers the in limines,
9 other than getting back to the timing of when we would consider
10 the issue as to cross examination with respect to what has been
11 referred to as Fair Game policy.
12 Mr. Berry: Your Honor, one further thing while
13 we're on Fair Game.
14 Since the filing of this case, there have been five
15 other lawsuits filed against Mr. Henson by people associated
16 with the plaintiff as part of what we would argue as Fair Game.
17 Are we permitted to get into that?
18 The Court: To me that is irrelevant. If it has any
19 relevance, it is extremely marginal, and I think that the
20 consumption of time, the confusion of the jury, and the
21 prejudice far outweighs any probative value. So the answer is
22 no.
23 Mr. Berry: I do -- I would understand that if
24 Mr. McShane testifies as to some of these things, he opens the
25 door.
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1 The Court: If he testifies as to something like
2 that, then you can approach me outside the presence of the jury
3 and tell me you think what he's brought up opens the door and
4 I'll make a judgment.
5 All right. Let me give you a few moments to look at
6 the jury instructions, and then we'll come back and talk about
7 that, the offer of proof to the extent we need to, and then
8 we'll go over the jury questionnaires. Hopefully they'll be
9 back.
10 The Clerk: They're right here.
11 The Court: Okay. Why don't you give me one set,
12 and I'll start on those while they're finishing up the jury
13 instructions.
14 (Recess.)
15 The Court: All right. I took the time to go
16 through the jury questionnaires too so that we -- I assume
17 you've had an opportunity to do that also.
18 Let's first take up the preinstructions I intend to
19 give to the jury. First, Mr. Rosen, do you have any objections
20 to any of the instructions I intend to give?
21 Mr. Rosen: None at all as to one and three, and
22 on -- and my comments on number two are very limited, your
23 honor. If I can direct you to page --
24 The Court: As soon as I find my copy.
25 Mr. Rosen: Okay.
21
1 The Court: All right.
2 Mr. Rosen: On the third page of instruction number
3 two, the third paragraph, third full paragraph, "Mr. Henson asks
4 that you find his infringement not willful and award RTC the
5 least amount of damages required by law," I think in view of the
6 comments made earlier, you might want to put in there as well
7 that Mr. Henson also claims that he cannot afford to pay a
8 substantial verdict.
9 The Court: Why?
10 Mr. Rosen: Well, now we've been told that that's a
11 defense that's going to be offered in mitigation, so --
12 Mr. Berry: I have no objection, your Honor. I'm
13 grateful for Mr. Rosen's suggestion, even though I saw it coming
14 after this.
15 Mr. Rosen: You are going to put that in, right?
16 Mr. Berry: We've already said on the record --
17 The Court: Let's not have discussion between
18 yourselves on the record.
19 Mr. Rosen: Or we can deal with it at the end, your
20 honor.
21 The Court: Well, these are preliminary
22 instructions.
23 Mr. Rosen: I understand.
24 The Court: What else do you have?
25 Mr. Rosen: On the next paragraph, your Honor, next
22
1 to the last line, proving by a preponderance of the evidence,
2 your Honor has the amount of such damages, and I believe that's
3 incorrect on statutory damages.
4 It's proving by a preponderance of the evidence the
5 factors that are relevant to the amount to be awarded within the
6 range provided by law.
7 The Court: I'm not sure I understand the
8 distinction you're trying to make.
9 Mr. Rosen: You state the amount of damages. That
10 amount suggests that we have to prove how much, an actual damage
11 claim, how much we have suffered in terms of monetary amount.
12 We have to quantify the damage, and obviously that's not the
13 basis of the stat damage claim.
14 So if I may ask, "proving by a preponderance of the
15 evidence the factors that are relevant to the amount of damages
16 to be awarded within the range allowed by law."
17 The Court: So you're suggesting inserting "factors
18 that are relevant to the" between "the" and "amount"?
19 Mr. Rosen: Evidence of the factors that are
20 relevant to the amount of such damages that should be awarded.
21 Yeah, that's fine.
22 The Court: All right. What else?
23 Mr. Rosen: Next page, second full paragraph, nature
24 of the copyright on second line, including published or
25 unpublished work.
23
1 The Court: I'm sorry. Read that again.
2 Mr. Rosen: Nature of the copyright, including
3 whether it is in a published or an unpublished work.
4 The Court: Okay.
5 Mr. Rosen: And of course I say that with the caveat
6 that I don't think the jury should consider NOTs 34, the
7 contents, but I respect your Honor's ruling.
8 Last line of that same paragraph is my last comment.
9 The next to the last line says "deterrence of further wrongful
10 conduct by defendant," and I would ask your Honor to insert the
11 words "and others."
12 The Court: Can you cite me a case that specifically
13 has said "deterrence of others"?
14 Mr. Rosen: I think there's a case cited in our
15 request to charge which, if your Honor recalls, was agreed to by
16 Mr. Berry last Thursday. It's request to charge number --
17 The Court: I'm just asking, though, which case out
18 of that, because I looked at all those cases and I don't
19 remember that specific language. It may be right. I'm just not
20 sure to be honest with you.
21 Mr. Rosen: I don't have the copies of the cases
22 here, but if there is an authority for that, which we have
23 cited, certainly it would be in RTC's instruction number six.
24 And as I say, Mr. Berry indicated his consent to our
25 request to charge last Thursday, so --
24
1 The Court: I thought what he said was that he
2 basically agreed, but he had a quarrel with one or two things,
3 but he hasn't filed anything.
4 Mr. Rosen: No, not the case. He said he had no
5 objections to our request to charge.
6 Mr. Berry: I think the court's recollection is the
7 accurate one.
8 Mr. Rosen: Well, we have been trying to get a
9 transcript of last Thursday, your Honor. But I'm going to stand
10 on my recollection at the moment, and that is Mr. Berry said he
11 had no objections.
12 And indeed, I can't imagine he would have said that
13 he's going to reserve and say something later when your Honor
14 issued an order that his objections were to be filed last
15 Tuesday.
16 The Court: I think my recollection is I told him
17 that he could file something if he wanted, but whether I'd
18 consider it or not was another issue.
19 Mr. Rosen: Still haven't gotten anything.
20 The Court: That's true.
21 Mr. Rosen: That's it, your Honor.
22 The Court: Okay. Mr. Berry, did you have any
23 objections to the proposed preliminary instructions?
24 Mr. Berry: Only one, your Honor. Well, two.
25 Instruction number two, page three, the first line,
25
1 the last two words, "and accompanied by significant comment."
2 The length of the posting was almost 50-50 between NOTs 34 and
3 the surrounding text. I would ask that instead of "significant
4 comment," it be "unaccompanied by sufficient comment to satisfy
5 the fair, the fair use exception." And --
6 The Court: Just a second. Okay.
7 Mr. Berry: And picking up on the court's comment, I
8 would object to "deterrence of others" as being part of the, of
9 these proceedings.
10 The Court: Can you cite me a case?
11 Mr. Berry: I don't have a case, just conceptually,
12 your Honor, it seems that others also deserve their day in
13 court.
14 The Court: All right. Everybody is okay with
15 everything else; correct?
16 Mr. Rosen: Yeah.
17 I do object to that first suggestion by Mr. Berry on
18 the change. I don't believe it comports with the law, nor do I
19 believe it comports with your Honor's prior ruling.
20 This portion of the instruction is essentially
21 explaining your Honor's prior ruling of summary judgment, and
22 the work is not surrounded by a multitude of material.
23 Most -- the rest of it is a letter to your Honor
24 saying "I heard Grady Ward is enjoined and I'm not in active
25 concert with him, so I didn't consider myself enjoined." That's
26
1 not comment on the work.
2 The Court: Well, what do you see as the big
3 difference between what he says, by sufficient comment to
4 satisfy the fair use defense?
5 Mr. Rosen: Because I believe that the way your
6 honor has it is more accurate of, more accurately reflective of
7 the decision your Honor made in April of 1997.
8 Mr. Berry: My recollection, and I wasn't there at
9 the time, your Honor, is that the court found that since it was
10 quoted almost verbatim, it does not satisfy the fair use
11 defense. So what we proposed would be consistent with the law
12 and the court's order.
13 The Court: Well, I also said that there was no
14 comment that satisfied fair use, and whether I said sufficient
15 comment or whatever, I frankly am having a tough time seeing a
16 real distinction between what the two of you are proposing.
17 But --
18 Mr. Berry: One further thing, your Honor, on that
19 issue. It does impact Mr. Henson's state of mind as to what he
20 thought was sufficient.
21 The Court: That's a different issue.
22 Okay. With respect to that jury instruction, I am
23 going to amend it to add the factors that are relevant to the
24 amount that Mr. Rosen proposed. I'm going to include the
25 language, "including whether a published or an unpublished
27
1 work."
2 I am not going to put in the deterrence of others,
3 but I will revisit that issue on final instructions.
4 And as you'll recall, or you may not have if you
5 didn't read the form instructions, but the first instruction
6 clearly tells the jury that at the end of the case they'll get
7 more detailed instructions that will actually control their
8 deliberations, so I'll be open to modifying that.
9 And I think the best way to -- let me reread the
10 sentence.
11 (Pause in proceedings.)
12 The Court: I'm going to have it read,
13 "unaccompanied by significant comment on the contents of the
14 document."
15 Okay?
16 Mr. Rosen: Your Honor, can I raise an issue which
17 we talked about last Thursday? I'm not sure we came to a
18 resolution of it.
19 If counsel is going to put in the posting which
20 contains NOTs 34, it is part of, as your Honor recalls, a letter
21 posted to your Honor saying, "with this negative option, unless
22 I hear from you, I'm going to assume" --
23 The Court: I don't think -- I've got it right here.
24 Mr. Rosen: I'm sorry. There's a second one to your
25 honor that's the negative option, but the one that appears as
28
1 exhibit 1-1 I think, or 1-2, has a letter to your Honor as part
2 of that posting.
3 I don't believe that letter should go in in a
4 separate letter that we spoke about on Thursday to your Honor.
5 That's the one that's the negative option. "If I don't hear
6 from you" --
7 The Court: This particular -- the posting, the
8 non-quoted NOTs 34 material says, "dear Judge Whyte, in the
9 company of perhaps 100,000 other people, the readers of the use
10 net groups alt.Religion Scientology, alt.Activism, alt. Et
11 cetera, I read the T.R.O. Against Grady Ward and all persons in
12 active concert. Was it your intent for this order to apply to
13 random persons on the internet such as myself? If so, I believe
14 the T.R.O. Is a violation of my First Amendment rights to
15 discuss the criminal activities of the cult of Scientology."
16 Then he goes on in another paragraph and tells what
17 he did and then he posts NOTs 34.
18 Mr. Rosen: I know. In this letter and in the other
19 one, which was referenced again on Thursday, that he separately
20 delivered to your Honor, that's the negative option that said
21 "if I don't hear from you."
22 I don't think either of these letters should be
23 before the jury. I don't think it's appropriate for Mr. Henson
24 to put before the jury in any form, orally or in writing, that
25 he contacted the court, because this is not -- this has nothing
29
1 to do with the issues being tried and it's going to get us into
2 a distraction as to whether or not the court has -- I'm going to
3 have to put a witness on to say a Judge doesn't have an
4 obligation to respond. It just puts me in an untenable
5 position.
6 The Court: Well, Mr. Berry, last week, said the
7 other letter he wasn't going to offer unless he found it. He's
8 not indicated to me that he did. This letter doesn't ask for a
9 response.
10 Mr. Berry: This letter, your Honor, is what they're
11 suing on. It boggles the mind that they want to keep it out.
12 Furthermore, I thought we addressed this at length
13 and the court ruled it goes in. It contains, more than anything
14 we can offer, what Mr. Henson's state of mind was at the time,
15 and it's perhaps the most relevant, material document.
16 The Court: You're not offering any other letter?
17 Mr. Berry: No.
18 The Court: I don't see a problem with this one.
19 The other one, if there's some sort of -- I don't even -- I'm
20 trying to wrack my brain if I ever even saw the other one. I
21 don't know if I did or didn't.
22 Mr. Rosen: Okay. There are one or two other
23 matters I want to bring to your Honor's attention before we get
24 to the juror questionnaires.
25 In the newspaper this Sunday, the Mercury, the
30
1 peninsula edition, there were -- there was an article quoting
2 some local politicians which is unfavorable to Scientology in
3 some respects.
4 I'm going to ask that -- I don't want to pinpoint
5 that, but I'm going to ask that, when the voir dire is conducted
6 orally by your Honor, you ask general questions as to whether
7 anybody has read any newspaper articles, magazines, et cetera,
8 about Scientology within the last month.
9 The second thing is last night Mr. Henson was on a
10 local radio station pleading his defense.
11 So I would include in the question, as well, whether
12 they've heard anything in any other media, radio or TV.
13 I'm also going to ask that your Honor give an
14 instruction that during the pendency of this trial, that that
15 kind of conduct by Mr. Henson, whether it be on the internet or
16 communications with the media, not occur. I'd hate to think
17 we'd have a jury seated and then have to deal with what the jury
18 may, may have heard during the course of the trial.
19 And in view of your Honor's ruling to allow NOTs 34
20 into evidence, I again renew my request of last week that if
21 it's to be read, as opposed to just shown, to the jury, if it's
22 to be read aloud or any portion of it to be read aloud, then
23 that the courtroom be cleared.
24 If one takes Mr. Henson's April 30th posting to the
25 internet, as his intention, I believe we submitted that to your
31
1 honor, his intention is, he says that your Honor is going to
2 allow him to explain what it means, there's going to be a
3 competency objection to that right away.
4 I just want to alert you to that. I'm not asking
5 you to rule now, but I want you to know that's what's coming.
6 He's going to get on the stand and say "here's NOTs 34 and I'm
7 telling you what it is. I'm going to translate that for you."
8 The Court: We'll talk about that in a minute, but
9 my view is that he can explain what information he was provided
10 at the time he posted. That goes to the question of his good
11 faith and reasonable belief. I have a problem with his personal
12 conclusions and characterizations of that information.
13 Mr. Rosen: I do too, and that's why I'm raising it.
14 One other thing in terms of your Honor's procedure.
15 I will be calling Mr. Henson as my witness on my case-in-chief,
16 and I assume that Mr. Berry will cross examine on the matters
17 that I brought out, and anything else he wants to bring out by
18 way of his defense will be reserved for the time when he calls
19 Mr. Henson in his case in defense.
20 The Court: That would be the normal way of doing
21 it.
22 Mr. Rosen: Thank you, your Honor.
23 The Court: Okay.
24 Mr. Berry: Two things, your Honor.
25 First of all, on the -- on his conclusions, I assume
32
1 your Honor doesn't mean to cut off his conclusion that he formed
2 the impression, the state of mind, that it constituted the
3 unlawful practice of medicine.
4 That's not being offered for anything other than his
5 state of mind. There can be a limiting instruction that that's
6 not an expert opinion, it's not a legal conclusion, but it's
7 certainly the state of mind that led him to post.
8 The Court: Why does he need to say that, other than
9 to say "I heard this, I heard this, I heard this, and I heard
10 this, and in light of that, I felt it was appropriate to publish
11 it"?
12 Mr. Berry: It's in the letter he published. It's
13 there in black and white as the reason he did it.
14 The Court: What other opinions would you intend to
15 be offering?
16 Mr. Berry: What he reached -- there was -- he
17 acquired certain information in the year or so that he was
18 active on the news group before he posted. That information led
19 him --
20 The Court: Relating to NOTs 34? What we're
21 concerned about in this case is NOTs 34.
22 Mr. Berry: Correct, your Honor. And in his
23 posting, he says, he refers to the criminal cult, or words to
24 that effect. He acquired information that led him to believe
25 that surrounding the improper use of medicine in his view were
33
1 other illegal activities that justified him in posting.
2 The Court: But wouldn't the way to handle that be
3 for him to testify as to what specifically he was told and --
4 Mr. Berry: Yeah. My intention, your Honor, would
5 be to take him through what he learned from reading the
6 internet, or what he learned from conversing with people.
7 The Court: But I don't want to get into, "well, I
8 learned that Scientology was a criminal cult." He can't do
9 that.
10 He could say, "on approximately such and such a
11 date, I read a posting from so and so that told me x."
12 Mr. Berry: He'll be tying it to specific events.
13 The Court: But I don't think it's fair or
14 appropriate for him to start saying, "well, I put all this
15 together and I decided in my own mind that this was a criminal
16 cult."
17 I think he's got to tell us what he heard and who
18 told him that and then whatever conclusion he reached. Then he
19 could say, "this caused me to make this posting."
20 Mr. Berry: That was my intention, your Honor.
21 The Court: But I think to have him start expressing
22 opinions that Scientology is a criminal cult or that --
23 Mr. Berry: I'll maintain the distinction between
24 him being percipient and him being an expert, which we don't
25 offer him as.
34
1 The Court: Well, what he heard that formed the
2 basis for his posting, I think, is relevant. But his opinions
3 such as that "it's a criminal cult" I have a problem with.
4 Mr. Berry: I appreciate the distinction, your
5 honor.
6 The second issue I want to raise is this request for
7 a gag order which I believe, your Honor, to be unmerited and, in
8 fact, unconstitutional.
9 The Court: Well, I'm not going to issue a gag order
10 at this point, but I would caution counsel, and Mr. Henson and
11 everybody else, that if I learn of something that is really
12 posing a threat to the fairness of this trial, we may have to
13 take some action.
14 Mr. Berry: Certainly, your Honor.
15 The Court: And I would hope that, since this is
16 going to be a short trial, that we could avoid things like talk
17 shows. I mean, that does strike me as the type of thing that's
18 not a very wise thing to be getting involved in during the
19 course of a trial.
20 Mr. Berry: I was hoping this would be so short,
21 your Honor, that I'll be back in L.A. By Friday.
22 Mr. Rosen: Your Honor, Mr. Berry made a comment at
23 the beginning of his presentation, and I think it focuses more
24 sharply on the issue.
25 What's going to happen is this. Mr. Henson is going
35
1 to say, "I thought, when I posted this, that NOTs 34 was a
2 criminal instruction manual because it constitutes the criminal
3 practice of medicine without a license."
4 That's what he said in the posting that accompanied
5 NOTs 34. And the question is going to be, "well, what did you
6 rely upon to believe that?"
7 Now, we've already asked him these questions and he
8 doesn't have anything.
9 The Court: Then you're going to impeach the heck
10 out of him.
11 Mr. Rosen: Well, except when he testifies, "I read
12 something on the internet on ARS a month before," we're going to
13 object on best evidence grounds.
14 You know, "you haven't produced it to us. And if
15 you have a posting that says that, you know, prior to March 30th
16 in which it is said that the NOTs 34 is a criminal instruction
17 manual for practicing medicine," my objection is going to be
18 best evidence. "You're not going to sit here and tell us about
19 it. I want to see the document if you say you relied upon it."
20 And he hasn't produced a single one of those to us.
21 It's not a question of impeaching, your Honor. I think it's a
22 question of whether he can even say it or whether it's barred by
23 the best evidence rule.
24 The Court: We're not talking a best evidence rule
25 problem, are we?
36
1 Mr. Rosen: I think we are. He's going to testify
2 that "the following was posted on the internet and I read it
3 before March 30th, 1996." And then he's going to proceed to
4 describe what it is that he read on the internet.
5 The Court: I'm more concerned, as I sit here, as to
6 whether or not, if there is such a document on which he relied,
7 it should have been listed in the pretrial statement.
8 Mr. Rosen: That's another issue, and of which there
9 are none, of course, no documents listed in the pretrial
10 statement even though your Honor bent over backwards and gave
11 him four opportunities, which he hasn't complied with any of
12 them.
13 The Court: Mr. Berry, doesn't that strike you as a
14 little bit unfair for somebody to come in and say "I relied on
15 x, y and z," but they never produced them or relied on them in
16 discovery?
17 Mr. Berry: What would seem even more unfair is
18 plaintiff playing hide the ball. Mr. Henson, I understand,
19 requested the archives of all the postings that occurred, which
20 they admittedly keep and which Mr. McShane has said he reads
21 every day, and they refused to produce them.
22 The Court: Well, discovery is over.
23 Mr. Berry: I mean, I appreciate --
24 The Court: And if there was a failure to produce, I
25 know both sides were in before the magistrate a number of times.
37
1 if there was some issue, shouldn't that have been resolved well
2 before now?
3 Mr. Berry: Mr. -- Well, I was not in the case at
4 that time, your Honor.
5 The Court: I know you weren't, but you take the
6 case as you find it.
7 Mr. Berry: Unfortunately.
8 Certainly Mr. Henson recalls what he read on the
9 internet. He recalls what he was told on the telephone. Those
10 are matters from which he, from which he formed his mental
11 impressions which caused his state of mind.
12 He read matters in the Ward case. He copied and
13 reviewed the file in the Erlich case. So those are all matters
14 which he had read before he even posted to the internet.
15 The Court: What do those, anything in those files
16 have to do with NOTs 34?
17 Mr. Berry: They go to his --
18 The Court: How?
19 Mr. Berry: How?
20 The Court: Yeah. What in either of those files
21 would have anything to do with NOTs 34, other than showing that
22 there was a preliminary injunction issued indicating that NOTs
23 34 should not be posted by, in Erlich's case Erlich, or in
24 Ward's case Ward, or people acting in concert?
25 Mr. Berry: My client --
38
1 The Court: I don't recall anything, and I may be
2 wrong because these cases have been an absolute nightmare for
3 this court, but I don't recall anything in either of those cases
4 that dealt with the contents of NOTs 34. Now, I may be wrong.
5 Mr. Berry: Can my client address the court?
6 The Court: No. You're the --
7 (discussion off the record.)
8 Mr. Berry: Your Honor, NOTs 34, like all the other
9 NOTs documents, and like many other, many of the other
10 Scientology documents, are written in jargon. It cannot be
11 understood, and wasn't understood, by Mr. Henson until he had
12 read other documents prior to its posting, which comprised part
13 of the court file in the Ward case, which comprised part of the
14 court file in the Erlich case.
15 Indeed, there is deposition testimony that speaks of
16 how he went to the Erlich files and photocopied the files and it
17 became an evolving realization through reading --
18 The Court: How could -- what you're saying doesn't
19 even make sense to me as I sit here, because if your whole
20 defense to willfulness is that this NOTs 34 contents had to be
21 disclosed, it's disclosed without any explanation whatsoever in
22 the March 30 posting, which is the subject of this lawsuit,
23 interpreting anything, explaining what any terms mean, with one
24 minor exception.
25 Mr. Berry: Your Honor, as I indicated in my offer
39
1 of proof, he became aware of the body of thetans, t-h-e-t-a-n-s,
2 and he refers to that in the posting as a process for the curing
3 of illness.
4 And he goes on to refer to the e-meter and auditing,
5 and then ties it into Judge Gesell's orders in a much earlier
6 case, in the early 1970's.
7 Now, he only became aware of body thetans and other
8 things from reading earlier documents, reading other documents,
9 reading the Erlich and Ward files, documents on the internet.
10 He only became aware of Fair Game, which he refers
11 to I believe at the bottom of the page and over the page, from
12 discussions with other former Scientologists, from reading
13 postings on the internet, from reading the contents of the Ward
14 and Erlich cases, not to mention conversations with Mr. Lerma,
15 Mr. Wollersheim and various attorneys involved.
16 He himself, your Honor, first acquired the document
17 some 12 months or more before -- and as the court may be aware,
18 it was posted several years before.
19 The Court: Well, I don't -- I've heard various
20 contentions about that. That's not something I'm passing
21 judgment on.
22 Mr. Berry: But he didn't acquire his knowledge in a
23 vacuum, your Honor. It came from conversations and reading.
24 (Pause in proceedings.)
25 Mr. Berry: I didn't want to interrupt your Honor's,
40
1 or the court's, train of thought, but referring again to page
2 two, he actually states, "I can supply you with nearly unlimited
3 affidavits and court filings which show a consistent pattern of
4 criminal behavior for this cult over decades of time."
5 The Court: But that -- we're getting off the point
6 when we're talking about alleged criminal behavior, because
7 we're talking about NOTs 34, and we're not going to turn this
8 trial into a trial as to whether or not there are other things
9 other than what's related to NOTs 34 that's criminal or not
10 criminal. That's irrelevant.
11 Mr. Berry: It does go to the context, your Honor,
12 in which he formed the state of mind that he could go ahead and
13 post as he did. As I said, he didn't acquire, he didn't reach
14 that conclusion, he didn't make that decision in a vacuum.
15 Mr. Rosen: Your Honor, can I be heard for a moment
16 on this?
17 The Court: Yes.
18 Mr. Rosen: Mr. Henson has provided three reasons,
19 justifications, for what he did in discovery in this case and in
20 papers submitted to this court, both originally in the P.I. And
21 thereafter.
22 "it was fun. It was amusement." That's the first
23 one.
24 The second one, "it was a status thing, I was
25 looking for attention from my friends on ARS."
41
1 And the third one is, as is set forth in the letter,
2 "you don't have any right, Judge. I have a First Amendment
3 right. You can't enjoin us."
4 And I think, because I think number three is really
5 part and parcel of the same thing, "and in my view, NOTs 34 is a
6 criminal instruction manual which teaches practicing medicine
7 without a license."
8 That's what he said. Once he starts getting into
9 body thetans and the text of NOTs 34, the effect on the jury is
10 going to be, "what is this?"
11 It makes no sense. It's gobbledygook. We're then
12 going to be obliged to explain what this means, why it is not
13 gobbledygook, why this is important work to us.
14 And your Honor has now indicated you're giving an
15 instruction which includes, on the statutory damages, the nature
16 of the work itself.
17 So by the process of doing this, we are doing
18 exactly what your Honor said we're not going to do, and that is
19 we're not going to get into a harassing trial, or a trial of the
20 religious principals of Scientology.
21 That's exactly what's going to happen if Mr. Henson
22 is allowed to proceed on his basis -- as his counsel has said,
23 he's going to explain "here's what body thetans are and here's
24 why NOTs 34 is this."
25 I am very comfortable with Mr. Henson saying "I
42
1 thought this was the practice of medicine. I thought it was
2 illegal, and that's why I did it, and in that context, you had
3 no right, or the court had no right, or First Amendment
4 overrides it because I'm doing that."
5 If he wants to stop there, that's fine. We can deal
6 with that.
7 In terms of his other testimony, we can deal with
8 that and what he did or did not do. "Did you call an attorney
9 and ask them, and ask an attorney about it? Did you do other
10 things if you really thought this was a criminal instruction
11 manual for the practice of medicine?" I can deal with that
12 easily enough.
13 The part that becomes very problematic is once
14 Mr. Henson is going to, as counsel stated, explain body thetans,
15 and "let me tell you where I got this from and other stuff that
16 I read which explains this," because then it becomes a trial of
17 Scientology's beliefs and religious precepts and that's not what
18 I understand this trial is about.
19 Let me talk about something else, and this may be a
20 little bit anticipatory. Mr. Henson went through almost one
21 year of this litigation never offering a single reason for what
22 he did other than what we've just said. He offered, your Honor,
23 that "my First Amendment right supercedes copyright and I
24 thought it was a criminal instruction manual."
25 Separately he offered us, in deposition, "it was
43
1 amusement. It was part of my entertainment budget."
2 Anything else that he offers now as an after
3 thought, post hoc the publication --
4 The Court: The thing that I'm really struggling
5 with, and I'm concerned about keeping this trial within the
6 limits that it's got to be kept, is that you say you're
7 comfortable dealing with, and I think you need to deal with, if
8 you want to assert willfulness, that he published it because he
9 thought it was the illegal practice of medicine. You say you're
10 comfortable dealing with that.
11 Well, can't he say what caused him to believe that
12 at the time he posted it, on what basis he came to that
13 conclusion?
14 Mr. Rosen: You know, in other circumstances,
15 maybe, yes. But given that the answer to that question will
16 then involve exactly what you just heard, and that is parsing
17 the words of it, which will require us to then put in a response
18 which, or evidence which is that's not what the words mean, "you
19 don't know anything about this, Mr. Henson. This is what it
20 means," and we're now trying the religious --
21 The Court: But isn't -- let me finish.
22 Mr. Rosen: I'm sorry.
23 The Court: But isn't your answer to that not
24 putting in what it does mean, but showing that he has absolutely
25 no basis for saying what he's saying?
44
1 Mr. Rosen: That's the -- you know, that was my
2 preference, and that indeed is the argument that I made last
3 Thursday, because my position is this.
4 The jury ought not be allowed to hear the evidence
5 of his subjective belief that he thought he had a right to do
6 this because it was practicing medicine without a license.
7 They should not hear that subjective belief because
8 it is extraordinarily prejudicial if the court can determine
9 that it is not reasonable, and that's why I said last Thursday,
10 had this issue been raised, had this issue been raised that
11 Mr. Henson was going to do this, then we would have come to you
12 and said, "look, I can show you that it is objectively
13 unreasonable for any person to believe that NOTs 34 is a
14 criminal instruction manual for practicing medicine without a
15 license."
16 It's no more the practice of medicine than if I say
17 to my son, "it's raining out, take an umbrella. You'll get
18 sick."
19 And my view, and that's why I raised it the first
20 chance I could last Thursday, was if you heard the evidence upon
21 which you would find there is no triable issue of fact, that no
22 person could objectively, reasonably believe that NOTs 34 was
23 the practice, the illegal practice of medicine, then you would
24 rule you can't put to the jury the subjective state, because
25 even if the jury believed it, it is insufficient on willfulness.
45
1 you have to -- as everybody agrees, this so-called defense is
2 that the belief was objectively reasonable.
3 The Court: How do you separate, though, between the
4 objective, what would come in on objective reasonableness and
5 what would come in on good faith belief?
6 Mr. Rosen: It's simple, because under the objective
7 reasonableness, I could put Mr. Henson on the stand and say,
8 "Mr. Henson, you thought this was the illegal practice of
9 medicine. Where in here does it practice medicine to any
10 greater extent than my saying to somebody, 'take an umbrella,
11 it's raining out.'?"
12 "Mr. Henson, you objectively believed it was the
13 practice of medicine and you thought that this constituted a
14 danger to people, to the Scientologists, so what did you do?
15 You took the -- you took this threat, this life-threatening
16 publication and posted it on the internet?"
17 That's like saying, "well, I think that a gun is
18 dangerous, so let me hand out copies -- let me hand out guns to
19 kids in school."
20 "Mr. Henson, you thought you had a reasonable belief
21 that this was the practice of medicine? The answer is why
22 didn't you call the attorney general of California? How do you
23 proceed on a belief of an illegal practice of medicine by
24 posting the very thing which you say is dangerous?"
25 The Court: Well, I think that's a very good
46
1 question.
2 Mr. Rosen: I'm saying, I think I could convince
3 you, and this is the reason I raised it Thursday, that as a
4 matter of law, I don't care what he subjectively believed, as a
5 matter of law, no person could have an objective, reasonable
6 belief that this document was the practice of medicine.
7 The Court: But getting into that, don't you have to
8 explore whatever information he had? Those points might make
9 whatever information he had, or whatever he was forming his
10 opinion on, totally unreasonable.
11 Mr. Rosen: I do, but I don't. And the reason I
12 don't is, as I said on Thursday, you've got a defense which has
13 two components to it, subjective belief and objective
14 reasonableness.
15 And if I can show you on summary judgment, or
16 summary adjudication, that he cannot satisfy the objective
17 belief because you will find that the ordinary, reasonable
18 prudent man reading this would never, ever objectively conclude
19 that this was the illegal practice of medicine, then you would
20 say "one of the arms of the defense is not there. I determined
21 it is not there; therefore, there's no point in putting in the
22 other arm, which is the subjective belief."
23 I don't care what Mr. Henson says that he believed.
24 If he cannot satisfy the reasonable prudent man standard as
25 applied to this context of objective reasonableness, it's
47
1 utterly prejudicial and makes no sense.
2 Let me give you an extreme example. What if he said
3 that NOTs 34 was a document which advocated the violent
4 overthrow of the United States government? You would look at
5 it --
6 The Court: The first question would be, on what do
7 you base that?
8 Mr. Rosen: No. That's the first question before
9 the jury.
10 The first question to your Honor is, would any
11 reasonable person reading this document believe that to be the
12 case? Because if the answer is no, I don't care what you base
13 it on Mr. Henson, because anything you say cannot satisfy the
14 objective standard.
15 What he bases it on goes to the subjective arm of
16 the defense, what he believed. I'm saying we never get to the
17 subjective arm of that defense if you determine that the
18 objective arm has not been met, and that's the greatest example.
19 If he says, "I believed it because I believe NOTs 34
20 advocated the violent overthrow of the United States
21 government," you would look at him and you would say, on summary
22 judgment, or summary adjudication, "no reasonable person could
23 possibly conclude that from reading it, end of defense. I'm not
24 going to let you tell the jury your subjective belief and that
25 it was based on what you read on the internet because it doesn't
48
1 matter. I find the belief could not have been reasonably held
2 even if you say you held it. It's not reasonable. You don't
3 satisfy the defense."
4 That's precisely the issue I raised last Thursday,
5 and it's unfortunate that it has been sprung on us on virtually
6 the eve of trial.
7 The Court: I'm not sure I necessarily agree with
8 that. My ruling when I denied summary judgment went into cases
9 on what constituted willfulness and what the issues were.
10 Mr. Rosen: Well, your Honor, with all due respect,
11 your ruling said that the issue on willfulness is whether he had
12 a basis to believe that the copyright was invalid.
13 The Court: That's the basic test of willfulness.
14 Mr. Rosen: This is not a basis to believe that
15 copyright is invalid. This is a basis to believe, "whether the
16 copyright is valid or not, I have some higher right. I have
17 some" --
18 This is almost like a juror nullification request.
19 He didn't say "the copyright is invalid." He says, "I have a
20 higher right. The copyright is valid, but I have a right to
21 infringe it anyway because I'm serving a higher purpose because
22 I think it's a criminal instruction manual; therefore, I am
23 privileged to infringe the copyright."
24 This is not a claim that the copyright is invalid.
25 This is -- there is no basis to claim the copyright is invalid.
49
1 he's saying the copyright is valid and he conceded before your
2 honor -- we have a transcript when he argued the summary
3 judgment motion, your Honor said to him, "you concede this?"
4 He said, "yes, the copyright. I don't know who owns
5 it, but obviously the copyright is valid and should be honored."
6 That's what he said to you. This is not a claim of
7 copyright invalidity or a reasonable belief that the copyright
8 was invalid.
9 This is not a claim, as Mr. Berry has raised in
10 other cases, "I had a good faith belief that the copyright was
11 invalid because I thought that Mr. Hubbord didn't write it."
12 That would go to copyright validity.
13 But he's conceded the validity. He's saying, "this
14 is a defense which is, even if it's valid, and it is valid and
15 I've conceded it, but I have a right to violate it, and I have a
16 right to infringe because I'm answering to a higher purpose."
17 That's the defense. And that, and your Honor, with
18 all due respect, if you go back and look at the decision that
19 you issued in April and the conversations we've had, including
20 on my request to charge, which Mr. Berry agreed to, that was the
21 issue.
22 The issue, and that's why I asked you this morning
23 when you said the same thing, that the defense is a good faith
24 belief that the copyright was invalid, not a good faith belief
25 that "I have the right to take a valid copyright and infringe it
50
1 because I think I'm above the law." Not the right to say, "I
2 don't care what the Judge says, but First Amendment, I think
3 invalidates the copyright law." Or "I have a right to warn
4 people about this criminal activity."
5 That's nothing like -- none of that goes to the
6 validity of the copyright, and the first time this issue
7 surfaced that your Honor was thinking in this direction was
8 Thursday.
9 So I would ask that your Honor consider this. I
10 mean, maybe what we do is we have a quick hearing on the --
11 let's do it with Mr. Henson on the stand. "Tell me the
12 objective grounds. What is the objective basis that a
13 reasonable person could read NOTs 34 and say that is the illegal
14 practice of medicine," because if your Honor finds that's not
15 the case --
16 I'm not suggesting that your Honor sit in place of
17 the jury. I recognize my burden is not to convince you that
18 there is no objective grounds in terms of weighing of the
19 evidence. My burden is the summary adjudication burden.
20 There is no evidence upon which a jury could ever
21 conclude that this was an objective reasonable belief. I
22 appreciate the difference in the standard. I'm not asking your
23 honor to substitute for the jury, but at least give me the
24 chance to do that.
25 The Court: Let's assume that your position were
51
1 valid on the question of whether or not it constitutes
2 willfulness or not. Would not still the reasons for the posting
3 be relevant to damages?
4 Mr. Rosen: No, not at all, because if you concluded
5 that there was no evidence upon which a jury could determine
6 that an -- forget what he says subjectively, that an objective
7 person could not have reasonably concluded that this was
8 practicing medicine without a license, then you would take out
9 all of the subjective beliefs of Mr. Henson and all that's left
10 is statutory damages.
11 And I have no argument that, nor I believe does
12 Mr. Berry, that the jury's consideration of statutory damages is
13 going to include what he thought.
14 That's the issue on willfulness. It has nothing
15 whatsoever to do with the issue on statutory damages. We've
16 enumerated the statutory damages factors in our request to
17 charge.
18 And your Honor indeed, in the preliminary charges,
19 added one or two, and we've discussed whether or not the
20 deterrence is limited to a defendant or the defendant and
21 others.
22 Your Honor has indicated in the preliminary charge,
23 in addition to what we have put in, consider the nature of the
24 work, et cetera. That's fine.
25 But there is no factor which is, "now that you've
52
1 found willfulness, or I instruct you that the infringement was
2 willful, now you will consider another, you're going to get
3 another bite at this and you'll consider the defendant's reasons
4 for doing it when you consider how much statutory damages to
5 award." I'm not aware of any authority for that, your Honor.
6 The Court: Well --
7 Mr. Rosen: Let me posit the question this way. If
8 I were right on willfulness, if I won summary judgment on
9 willfulness and this were an inquest, or a trial limited to one
10 issue, statutory damages, would you let Mr. Henson testify as to
11 why he posted it and what he thought?
12 The Court: I might. I'm not sure.
13 Mr. Rosen: I respectfully disagree. Unless it goes
14 to deterrence and "now that I've been told and a lawyer has told
15 me that it's not a criminal document, I won't do it again,
16 therefore, you don't have to whack me with big numbers."
17 Unless it comes in as related to one of the factors
18 in stat damages, I don't see it. And we're certainly not going
19 to hear Mr. Henson come in and say "i'm sorry. I won't do it
20 again."
21 The Court: All right. What I want to do, because I
22 don't want to hold up the jurors, I want to go over the
23 questionnaires. Let me, before I do that --
24 Mr. Rosen: Your Honor, I'm told that we actually
25 have a ninth circuit case that we're getting a copy of now that
53
1 says if a belief is not reasonably held objectively, that that's
2 summary judgment, that the subjective relief cannot go to the
3 trier of fact.
4 The Court: I'll take a look at it. Let's turn to
5 the juror's questionnaires. I'm going to read -- there's a
6 number, I assume you've got in the upper right-hand corner, of
7 those that I think should be for sure excused either based on
8 hardships or bias, and if you disagree with me on any of the
9 numbers I read, you can let me know, but that'll cut down the
10 group that we have to look at a bit.
11 So 5 -- these are the ones that I think should be
12 excused based on hardship or cause reason. 5, 8, 10, 14, 15,
13 26, 27, 34, 36, 41, 42, 59, 64, 69, 132.
14 Mr. Rosen: What was that last one, your Honor?
15 The Court: 132, 138, 105 And 141.
16 Mr. Rosen: 105. Your Honor, could you consider 74
17 and 125 on cause?
18 The Court: Well, I will, but I want to cover these
19 first.
20 Mr. Rosen: Okay.
21 The Court: Oh, I'm sorry. 74 Should have been in
22 that list. So 74 also.
23 Does either side disagree with excusing any of
24 those people?
25 Mr. Berry: Yes, your Honor. I'm still figuring out
54
1 the numbers, but I disagree with 10, 14, 15, 27, 64. I disagree
2 with those ones, your Honor.
3 The purpose of voir dire is to test their biases
4 and, in part, if appropriate, to rehabilitate them and ascertain
5 that they can, indeed, put aside any perceived bias and
6 adjudicate this case fairly.
7 The Court: Okay. The others you do not disagree
8 with?
9 Mr. Berry: The others I do not disagree with, your
10 honor.
11 The Court: All right. So right now 74 is out, 5 is
12 out, 8 is out.
13 Mr. Rosen: Your Honor, I'm just catching up. I
14 have no objection to excuse on 5, 8, 34, 36 or 41. So those are
15 the ones that are hardship ones.
16 And I'm just catching up on the remainder.
17 The Court: All right. Let me just go through. 5,
18 8 And 74 nobody has disagreement on.
19 Mr. Rosen: 5, 8 And 34?
20 The Court: 74.
21 Mr. Rosen: Oh, okay.
22 The Court: 26, 34, 36, I'm assuming you're going to
23 speak up if you disagree with any of these, Mr. Rosen, 41, 42,
24 59, 69, 132, 138, 105, 141.
25 Mr. Rosen: No problem with any of those, your
55
1 honor.
2 Mr. Berry: No objection, your Honor.
3 The Court: Okay. 14 I'm going to excuse. No
4 matter what answers he gave with respect to follow-up questions,
5 I think his questionnaire shows enough bias that I do not think
6 he should be a potential juror.
7 Let me ask you first, with those, with respect to
8 those whose numbers I haven't read, are there any that both
9 sides agree should be let go because of hardship?
10 Mr. Berry: 118, Your Honor.
11 Mr. Rosen: Your Honor, 57 indicates hardship. I
12 would have no objection to you excusing that --
13 The Court: 57 And 72 kind of fall into the same
14 category. I find it a close call with teachers, but if both
15 sides agree, I will excuse them. If they don't, I will perhaps
16 not do so preliminarily.
17 What was the number you mentioned, Mr. Berry, the
18 other number?
19 Mr. Berry: 57, Your Honor, I believe it was. No,
20 sorry. It was 118.
21 The Court: Yeah, I'm inclined to think 118 should
22 be excused for hardship, so I'm going to do that.
23 What's your position on 57 and 72, hardship?
24 Mr. Rosen: Your Honor, 57 I indicated earlier I
25 would consent to it. I thought this was familiar. As I'm
56
1 reading it again --
2 The Court: Mr. Berry, 57?
3 Mr. Berry: 57 And -- I mean, this is a short
4 proceeding, your Honor, and --
5 The Court: I'm just asking you. If you don't
6 agree, then --
7 Mr. Berry: I'm sorry. Don't agree, your Honor.
8 Mr. Rosen: 72 I agree with, your Honor.
9 The Court: Mr. Berry?
10 Mr. Berry: Disagree.
11 The Court: Okay. I will --
12 Mr. Rosen: 72 Was one of the ones we'd ask you to
13 consider, in any event, on cause, your Honor, looking at the
14 answers on page two.
15 The Court: Okay. With respect to cause, what
16 numbers that I haven't excused do you feel I ought to excuse at
17 this point, either side? Mr. Rosen?
18 Mr. Rosen: 72, As I just mentioned, 30, 50, 56, 78,
19 89, 93, 145.
20 The Court: In addition to the ones that I first
21 read that Mr. Berry objected to, namely, 10, 15, 27 and 64?
22 Mr. Rosen: That's correct, in addition. We believe
23 your Honor's intention to disqualify for cause is correct. We
24 disagree with Mr. Berry.
25 The Court: Okay. Mr. Berry, are there any that you
57
1 feel should be excluded for cause that haven't been mentioned?
2 Mr. Berry: 16, 92, 136. Just those three, your
3 honor.
4 The Court: I understand Mr. Rosen's basis for the
5 challenge for cause that's based on particular answers to the
6 question. What is the basis on 92?
7 Mr. Berry: The basis is my notes, your Honor, until
8 I get to the questionnaire.
9 I misspoke, your Honor.
10 The Court: Okay. So 92 is now out.
11 How about 16? What's the basis for that?
12 Mr. Berry: I withdraw for cause, your Honor.
13 The Court: I'm sorry?
14 Mr. Berry: I withdraw for cause on 16.
15 The Court: Okay. How about 136?
16 Mr. Berry: My conclusion with 136 was that he
17 appeared that he'd probably have language problems, your Honor.
18 Mr. Rosen: Your Honor, with all due respect, a
19 gentleman with the B.S. In mechanical --
20 The Court: I don't see a basis for that at this
21 point.
22 All right. What I'm going to do is the ones I
23 indicated will be excused. I will review the questionnaires
24 between now and 1:30 As to those that Mr. Rosen feels, based on
25 their answers, should be excused and there be no attempt to
58
1 probe further, and then we'll have the others up and do the voir
2 dire.
3 And my voir dire, frankly, is going to be very short
4 in view of the questionnaires. I will go into asking questions
5 about whether anybody has read or heard anything as Mr. Rosen
6 requested; I'll ask some questions, a question about following
7 my instructions on the law; and to the extent that anybody who
8 indicated feelings about Scientology, if I don't excuse them,
9 I'm going to take them up individually because I just don't want
10 to get into a situation where we potentially have answers that
11 would pollute the remaining jurors.
12 Mr. Rosen: Your Honor, would you contemplate that
13 we will, if we seat the jury sometime this afternoon, that we
14 will start opening statements this afternoon?
15 The Court: Well, I had originally planned that, but
16 in light of my discomfort with each side knowing the limits of
17 what I think is admissible, I think maybe we ought to spend the
18 time after we select the jury and I will give my preliminary
19 instructions resolving that issue a little more. So then we
20 would start --
21 Mr. Rosen: Tomorrow morning?
22 The Court: -- Tomorrow morning with openings.
23 Mr. Rosen: And the other thing that I mentioned
24 earlier, the case I was referring to in the ninth circuit is
25 peer, p-e-e-r, international, Mr. Berry, it's 909 fed2d, 1332,
59
1 and the portion I was referring to is 1336. Unfortunately --
2 The Court: Yeah, that case gives the two-step
3 issue. I'm not sure it says you resolve one before you resolve
4 the other, but I'll take a look at it.
5 Mr. Rosen: Not before, but if you resolve one, then
6 the other one falls out.
7 The Court: I'm not sure that tells me anything that
8 I didn't already know. That's, I think, probably the main ninth
9 circuit case at this point. All right.
10 So I think, unless I've forgotten something, we'll
11 meet at 1:30, Start jury selection, I will only have up those
12 jurors that I feel are potential jurors, subject, of course, to
13 learning something further in the voir dire process.
14 We will proceed with jury selection and my
15 preinstructions to the jury, we will defer opening statements
16 until first thing tomorrow morning, and hopefully we can get a
17 little more guidelines and I can firm up my view as to what
18 evidence can come in and can't come in with respect to
19 Mr. Henson's state of mind at the time of his posting.
20 Is there anything that I have not covered that we
21 need to have resolved before we break for lunch?
22 Mr. Rosen: I assume, inherent in that, is what you
23 were going to address this morning, and that is the offer of
24 proof in Mr. Berry's offer of proof.
25 The Court: The problem i, frankly, have with the
60
1 offer of proof is it gives me no help because it does not in any
2 way tell me what Mr. Henson knew at the time he made the
3 postings.
4 It obviously gets into stuff relating to picketing
5 that's totally irrelevant in this case. So I was frankly
6 disappointed in the offer of proof and don't find it helpful,
7 so we're going to have to sort through this a little more this
8 afternoon.
9 Mr. Berry: Your Honor's rulings already have led me
10 to strike out certain portions already.
11 The Court: I assumed that's the case.
12 Mr. Berry: Yes.
13 The Court: Okay.
14 Mr. Rosen: Has your Honor ruled on the four that
15 you suggested be let go for cause that Mr. Berry has objected
16 to, namely, 10, 15, 27 and 64?
17 The Court: No, I just pulled them out. I'm going
18 to look at them over the noon hour.
19 Basically what I'm going to look at, just so you'll
20 know, is if I look at the questionnaire as I did, because it's
21 kind of stuck in my memory because of some comments that he
22 made, that if I feel that no matter what the responses were to
23 questions, that I would still excuse them based on their
24 answers, I'm not going to have them come up because it's a waste
25 of everybody's time.
61
1 If, on the other hand, I think it may legitimately
2 be something that, on further questioning given the issues in
3 this case, the person could serve, then I'll have them up and
4 I'll question them further outside the presence of the other
5 jurors.
6 Okay? So have I left anything out? Everybody on
7 the same wavelength for 1:30. 1:30 We'll just start with jury
8 selection. Okay.
9 (recess.)
10 (jury selection, proceedings not transcribed.)
11 The Court: You want to hand out the preliminary
12 instructions?
13 The Clerk: Please raise your right hands to be
14 given the oath, please, and stand.
15 (Jury sworn.)
16 The Clerk: Thank you. Please be seated.
17 The Court: What I'm going to do this afternoon is
18 I'm going to read you these preliminary instructions. You have
19 a copy that you can keep throughout the trial, and if you want
20 to make notes on them, you're welcome to.
21 If it's easier for you not to read as I read, you're
22 free to just listen rather than read along. But if it helps to
23 read along, you're free to do so.
24 After I complete the reading of these
25 preinstructions to you, then MS. Ayala will take you and tell
62
1 you some procedural things about jury service and then you'll be
2 excused for the day and we'll see you tomorrow morning at 8:00.
3 With that, let me give you the preinstructions.
4 Ladies and gentlemen, you are now the jury in this
5 case, and I want to take a few minutes to tell you something
6 about your duties as jurors and to give you some instructions.
7 At the end of the trial I will give you more detailed
8 instructions. Those instructions will control your
9 deliberations.
10 It will be your duty to decide from the evidence
11 what the facts are. You, and you alone, are the Judges of the
12 facts. You will hear the evidence, decide what the facts are,
13 and then apply those facts to the law which I will give to you.
14 That is how you will reach your verdict. In doing so, you must
15 follow the law, whether you agree with it or not. The evidence
16 will consist of the testimony of witnesses, documents and other
17 things received into evidence as exhibits, and any facts on
18 which the lawyers agree or which I may instruct you to accept.
19 You should not take anything I may say or do during
20 the trial as indicating what I think of the evidence or what
21 your verdict should be.
22 To help you follow the evidence, I will give you a
23 brief summary of the nature of the case, the position of the
24 parties, and the burden of proof.
25 This is a copyright infringement lawsuit brought by
63
1 the plaintiff, Religious Technology Center, against the
2 defendant, H. Keith Henson. You will hear the plaintiff,
3 Religious Technology Center, referred to in this case simply as
4 RTC.
5 Copyright is a form of property ownership known as
6 intellectual property. Copyright is the exclusive right to
7 copy. The owner of a copyright has the right to exclude any
8 other person from reproducing, preparing derivative works,
9 distributing, performing, displaying, or using the work covered
10 by a copyright for a specified, or a specific period of time.
11 Copyrighted work can be a literary work, musical
12 work, dramatic work, pantomime, choreographic work, pictorial
13 work, graphic work, sculptural work, motion picture work,
14 audiovisual work, sound recording, architectural work, mask
15 works fixed in a semiconductor chip products, or a computer
16 program. That's a listing of the various types of things that
17 are subject to copyright. We're not going to be dealing with
18 most of them in this case.
19 The basis for copyright protection is actually found
20 in the United States constitution, which authorizes the Congress
21 "to promote the progress of science and useful arts by securing
22 for a limited time to authors the exclusive right to their
23 writings."
24 In other words, copyright law is designed to
25 encourage authors to create works by protecting, for a period of
64
1 time, their works from being copied or distributed by others
2 without the authors' permission. If you have rented a movie
3 from a video store recently, you may remember that there was a
4 message at the beginning of the tape warning you not to make a
5 copy of the movie. That message was based on the protection
6 that federal copyright law provides.
7 The copyright owner may transfer to another person
8 all or part of the owner's property interest in the copyright,
9 that is, the right to exclude others from reproducing, preparing
10 a derivative work, distributing, performing, displaying, or
11 using the copyrighted work.
12 Copyright automatically exists in a work the moment
13 it is created. The owner of the copyright may register the
14 copyright by delivering to the United States copyright office of
15 the library of Congress a copy of the copyrighted work. After
16 examination and a determination that the material deposited
17 constitutes copyrightable subject matter, and that legal and
18 formal requirements are satisfied, the register of copyright
19 registers the work and issues a certificate of registration to
20 the copyright owner.
21 RTC is affiliated with the church of Scientology.
22 The Scientology religion was founded by the late L. Ron Hubbord,
23 and RTC owns the rights to the copyright of Mr. Hubbord, which
24 is the subject of this case. Although RTC is affiliated with
25 the church of Scientology, this is not a case about religion or
65
1 religious beliefs. You will not be asked to decide anything
2 about Scientology, or to approve or disapprove of its beliefs
3 and practices.
4 Earlier in this case, the court determined that RTC
5 is the owner of the copyright in a work by Mr. Hubbord entitled
6 "NOTs 34." The court also determined that Mr. Henson infringed
7 RTC's exclusive rights in this work by posting verbatim a copy
8 of it on the internet on March 30th, 1996.
9 For those of you who may not be familiar with the
10 internet language, or with internet language, a posting is
11 essentially a message that is placed on the internet by a
12 computer user for other people to read.
13 By posting NOTs 34, Mr. Henson unlawfully copied and
14 electronically distributed the work in violation of RTC's
15 rights. Based upon the evidence earlier, presented earlier, the
16 court also determined that Mr. Henson has no legal defense, such
17 as fair use, to his liability for the posting on March 30th,
18 1996. A person is not liable for the fair use of a copyrighted
19 work for purposes such as criticism, comment or education. The
20 fair use defense was not available to Mr. Henson primarily
21 because his posting of NOTs 34 was verbatim and unaccompanied by
22 significant comment on the contents of the document.
23 Since the court has already determined that
24 Mr. Henson is liable for copyright infringement, there are only
25 two remaining issues for you to decide.
66
1 First, you will be asked to decide whether
2 Mr. Henson's infringement of RTC's copyright was willful, a term
3 that I will define for you later. Second, you will be asked to
4 set the amount of damages that should be awarded to RTC against
5 Mr. Henson.
6 RTC asks you to find that Mr. Henson's infringement
7 was willful and asks you to award to it increased damages as
8 provided for in the copyright act. Mr. Henson asks you to find
9 that his infringement of RTC's copyright was not willful and
10 that you should award to RTC the least amount of damages
11 provided by the law.
12 A copyright owner is entitled to elect to recover an
13 award of statutory damages for all infringements of a work for
14 which a defendant is liable as an alternative to recovering its
15 actual damages and any additional profits made by an infringer.
16 "Statutory damages" refers to damages set by the copyright act.
17 RTC has elected to recover statutory damages and has the burden
18 of proving by a preponderance of the evidence the factors that
19 are relevant to the amount of such damages that should be
20 awarded within the range allowed by law.
21 An award of statutory damages should be in a sum of
22 not less than 500, nor more than $20,000 as you consider just
23 for the infringement of the work with the following two
24 exceptions:
25 One, if RTC proves by a preponderance of the
67
1 evidence and you find that the infringement was committed
2 willfully, you may, in your discretion, increase the award of
3 statutory damages to a sum of not more than $100,000. Copyright
4 infringement is willful when it is done with knowledge that it
5 is in violation of the owners copyright, or with reckless
6 disregard for the copyright owners rights. One who has been
7 notified that his conduct constitutes copyright infringement,
8 but who reasonably believes the contrary, does not act
9 willfully. However, one who recklessly disregards a copyright
10 holders rights, even if lacking actual knowledge of
11 infringement, may be considered to be acting willfully.
12 Two, if, on the other hand, Mr. Henson [proefz/] by
13 a preponderance of the evidence and you find that he was not
14 aware and had no reason that believe that his acts constituted
15 an infringement of copyright, you may in your discretion reduce
16 the award of statutory damages to a sum of not less than 200
17 dollars. A defendant is entitled to a reduced minimum only be
18 [proefz/] that his infringing conduct was accomplished with a
19 good faith belief in the innocence of his conduct and that he
20 was reasonable in holding such good faith belief. The amount of
21 an award of statutory damages within the range you find
22 applicable is within your discretion, considering the nature of
23 the copyright, including whether in a published or unpublished
24 work, the circumstances of the infringement and other like
25 factors. Such other like factors may include, but are not
68
1 limited to, the prevention of unjust [epb/] richment,
2 [rep|represent] par [raeugs/] of any injury, and deterrence of
3 further wrongful conduct by defendant. Your discretion and
4 sense of justice are controlling.
5 When a party has the burden of proof an on an issue
6 by a preponderance of the evidence, it means you must be
7 persuaded by the I have had that the position of the party
8 having the burden of proof on the issue is more probably true
9 than not true. You should base your [tkegsz/] on all of the
10 evidence, regardless of which party presented it.
11 The following things are not evidence and you must
12 not consider them as evidence in deciding the facts of the case:
13 One, statements and arguments of the attorneys;
14 Two, questions and objections of the attorneys;
15 Three, testimony that I instruct you to disregard;
16 Four, anything you may see or hear when the court is
17 not in session, even if what you see or hear is done or said by
18 one of the parties or by one of the witnesses.
19 Some evidence is admitted for a limited purpose
20 only. When I instruct you that an item of evidence has been
21 admitted for a limited purpose, you must consider it only for
22 that limited purpose and for no other.
23 Evidence may be direct or circumstantial. Direct
24 evidence is direct proof of a fact, such as testimony by a
25 witness about what that witness personally saw or heard or did.
69
1 circumstantial evidence is proof of one or more facts from which
2 you could find another fact. You should consider both kinds of
3 evidence. The law makes no distinction between the weight to be
4 given to either direct or circumstantial evidence. It is for
5 for you to decide how much weight should be given to any
6 evidence.
7 Let me give you a quick example of direct evidence
8 versus circumstantial evidence. You come home, you see a little
9 boy in the kitchen eating a piece of cherry pie. That's direct
10 evidence that he ate the pie. You're seeing him do it.
11 On the other hand, if you came into the kitchen, the
12 pie was there, a piece was missing, and the little boy had some
13 red stuff around his mouth, you didn't see him eat the pie, but
14 you might conclude from the evidence that you saw that he did,
15 in fact, eat the pie, and that would be circumstantial evidence
16 that he ate the piece of pie.
17 You have to be careful, of course, with
18 circumstantial evidence, because there may be some other
19 explanation. His sister could have wiped it on his face or
20 something. That's kind of an absurd example, but the point is
21 that there are those two kinds of evidence and you can consider
22 both.
23 There are rules of evidence which control what can
24 be received into evidence. When a lawyer asks a question or
25 offers an exhibit into evidence and a lawyer on the other side
70
1 thinks that it is not permitted by the rules of evidence, that
2 lawyer may object. If I overrule the objection, the question
3 may be answered or the exhibit received. If I sustain the
4 objection, the question cannot be answered and the exhibit
5 cannot be received.
6 Whenever I sustain an objection to a question, you
7 must ignore the question and must not questions what the answer
8 might have been.
9 Sometimes I may order that evidence be stricken from
10 the record and that you disregard or ignore the evidence. That
11 means that when you are deciding the case, you must not consider
12 the evidence which I told you to disregard.
13 In deciding the facts in this case, you may have to
14 decide which witnesses to believe and which witnesses not, which
15 testimony not to believe.
16 Let me reread that. In deciding the facts of this
17 case, you may have to decide which testimony to believe and
18 which testimony not to believe. You may believe everything a
19 witness says, or part of it, or none of it.
20 In considering the testimony of any witness, you may
21 take into account:
22 The opportunity and ability of the witness to see or
23 hear or know the things testified to;
24 The witness' memory;
25 The witness' manner while testifying;
71
1 The witness' interest in the outcome of the case and
2 any bias or prejudice;
3 Whether other evidence contradicted the witness'
4 testimony;
5 The reasonableness of the witness' testimony in
6 light of all the evidence; and
7 Any other factors that bear on believability.
8 The weight of the evidence as to a fact does not
9 necessarily depend on the number of witnesses who testify.
10 Let me now say a few words about your conduct as
11 jurors.
12 First, do not talk to each other about this case or
13 about anyone who has anything to do with it until the end of the
14 case when you go to the jury room to decide on your verdict.
15 Second, do not talk with anyone else about this case
16 or about anyone who has anything to do with it until the trial
17 has ended and you have been discharged as jurors. "Anyone else"
18 includes members of your family and your friends. You may tell
19 them you are a juror, but don't tell them anything about the
20 case until after you have been discharged by me.
21 Third, do not let anyone talk to you about the case
22 or about anyone who has anything to do with it. If someone
23 should try to talk to you, please report it to me immediately.
24 Fourth, do not read any news stories or articles or
25 listen to any radio or television reports about the case or
72
1 about anyone who has anything to do with it.
2 Fifth, do not do any research, such as consulting
3 dictionaries or other reference materials, and do not make any
4 investigation about the case on your own.
5 Sixth, if you need to communicate with me, simply
6 give a signed note to the clerk to give to me.
7 Seventh, do not make up your mind about what the
8 verdict should be until after you have gone to the jury room to
9 decide the case and you and your fellow jurors have discussed
10 the evidence. Keep an open mind until then.
11 At the end of the trial, you will have to make your
12 decision based on what you recall of the evidence. You will not
13 have a written transcript to consult, and it is difficult and
14 time consuming for the reporter to read back lengthy testimony.
15 I urge you to pay close attention to the testimony as it is
16 given.
17 If you wish, you may take notes to help you remember
18 what witnesses said. If you do take notes, please keep them to
19 yourself until you and your fellow jurors go to the jury room to
20 decide the case. Do not let note taking distract you so that
21 you do not hear other answers by the witnesses. When you leave,
22 your notes should be left in the courtroom or jury room.
23 Whether or not you take notes, you should rely on
24 your own memory of what was said. Notes are only to assist your
25 memory. You should not be overly influenced by the notes.
73
1 While it is not customary for a juror to ask a
2 question of a witness, if you wish to do so, put the question in
3 writing and hand it to the clerk.
4 The court and counsel will review your question. Do
5 not be concerned if the question is not asked.
6 Do not discuss your question with anyone, including
7 the clerk. Remember that you are not to discuss the case with
8 the other jurors until it is submitted for your decision.
9 From time to trial during the trial, if may become
10 necessary for me to talk with the attorneys out of the hearing
11 of the jury, either by having a conference at the bench when the
12 jury is present in the courtroom, or by calling a recess.
13 Please understand what while you are waiting, we are working.
14 The purpose of these conferences is not to keep relevant
15 information from you, but to decide how certain evidence is to
16 be treated under the rules of evidence and to avoid confusion
17 and error.
18 We will, of course, do what we can to keep the
19 number and length of these conferences to a minimum. I may not
20 always grant an attorney's request for a conference. Do not
21 consider my granting or denying a request for a conference as
22 any indication of my opinion of the case or what your verdict
23 should be.
24 The trial will now begin. Actually, it will begin
25 tomorrow morning. First each side may make an opening
74
1 statement. An opening statement is not evidence. It is simply
2 an outline to help you understand what that party expects the
3 evidence will show. A party is not required to make an opening
4 statement.
5 The plaintiff will then present evidence and counsel
6 for the defendant may cross examine. Then the defendant may
7 present evidence and counsel for the plaintiff may cross
8 examine.
9 After the evidence has been presented, the attorneys
10 will make closing arguments and I will instruct you on the law
11 that applies to the case.
12 You will then decide the case.
13 All right. That completes what we are going to do
14 today, and i, in some ways, apologize for reading the
15 instructions the last part of the day. I know there's a lot
16 there and I could see some yawns as I was going through and I
17 can understand that, but one reason that I hand them out to you
18 is so that you will have them for reference should you need to
19 refer to them at some time.
20 Before I let you go, the one other thing that I want
21 to tell you is that you may pass the attorneys or parties in the
22 hallway at some time during the course of this trial, and they
23 probably will not say anything to you, or at least will say "hi"
24 and that's it.
25 The reason for that is that the parties and
75
1 attorneys have an obligation not to speak to jurors during the
2 course of trial except here in open court. It's their ethical
3 obligation not to do so.
4 So rather than raise any question about the meaning
5 of a "hi" or something, often the parties or attorneys will
6 choose to say nothing. So if that should happen, don't feel
7 somebody is being unfriendly or discourteous to you. They're
8 just recognizing their ethical obligation.
9 With that, we'll see you tomorrow morning at 8:00
10 and if you would go with MS. Ayala now, she'll give you some
11 instructions before you leave.
12 (Whereupon, the following proceedings were held out
13 Of the presence of the jury.)
14 The Court: All right. Counsel, why don't I give
15 you ten minutes and we'll meet back at 4:30, Yeah, 4:30, for
16 just a brief period.
17 Mr. Rosen: Sure.
18 (Recess.)
19 The Court: I will alert you, unfortunately, to a
20 problem we may have to deal with. I told MS. Ayala to have them
21 write it out, but jurors number six and eight, whose last name
22 is the same, which I didn't notice before, may be sending us a
23 note indicating one of them has a hardship that he failed to
24 write on his form, and both apparently have some difficulty with
25 English. So I'll just have to see what the notes are and deal
76
1 with it.
2 We have two things that we were going to discuss
3 now. One is what Mr. Henson can get into on his direct
4 examination; and two, whether or not there can be cross
5 examination of Mr. McShane, should he testify, with respect to
6 what has been described as Fair Game.
7 It seems to me that with respect to the first issue,
8 Mr. Henson has taken the position all along that he published
9 the NOTs 34 for -- the motive for it was that he felt it was
10 constituted the illegal practice of medicine.
11 It seems to me that the test under the standard for
12 willfulness is whether or not the person who copied, or posted
13 in this case, understood that the material was not copyrighted,
14 which I'm not sure really is disputed in this case, but I'm not
15 100 percent sure of that based on some passages that have been
16 read.
17 It appears that Mr. Henson acknowledged an
18 understanding at the time he posted that it was, in fact,
19 copyrighted by someone. But that seems to me is the issue.
20 Then if there was some reasonable, good faith belief
21 on his part at the time he posted that, despite the copyright,
22 he was not violating the copyright law, if he nevertheless
23 posted because it reflected the illegal practice of medicine, it
24 seems to me that it would be relevant as to the reasonableness
25 of his belief that NOTs 34 was, or reflected the illegal
77
1 practice of medicine; and two, the reasonableness of his belief
2 that he could, even if it constituted an illegal practice of
3 medicine, he could publish despite copyright law.
4 So it seems to me evidence that's relevant to those
5 issues is admissible.
6 Evidence pertaining to whether or not Mr. Henson
7 believed or had information that Scientology was a criminal cult
8 or did some other illegal acts seems to me to be irrelevant to
9 what's at issue here, and what's at issue here is NOTs 34,
10 whether it was copyrighted, whether Mr. --
11 Well, it was copyrighted. Whether Mr. Henson knew
12 it was copyrighted, and if he knew it was copyrighted, whether
13 he had a reasonable belief that despite the copyright, he would
14 not be in violation of the copyright law if he posted, and the
15 only basis that's been asserted, essentially, for that is that
16 NOTs 34 reflects the illegal practice of medicine and, on some
17 basis, that if it did reflect the illegal practice of medicine,
18 in some way it wasn't covered by copyright law, and he would
19 have to prove that he had a reasonable belief in good faith that
20 that was the situation.
21 With respect to potential cross examination of
22 Mr. McShane, I really don't think that it's possible to make a
23 definitive decision with respect to the scope of cross
24 examination until such time as I hear the direct.
25 I do have some question as to whether or not his
78
1 testimony would raise an issue of getting into Fair Game, or
2 what's been termed Fair Game, based upon at least the documents
3 I've seen, in that it would appear from the documents that, and
4 maybe I'm misreading them, that the policy as written back in
5 1967 or so, maybe '65, was directed at former Scientologists
6 rather than people that had had no connection with, or been
7 involved with Scientology.
8 It also does appear that the policy as it existed
9 was discontinued at least as of 1980, if not 1968, and I just
10 have some trouble believing that we aren't getting pretty
11 remote.
12 That does not mean that questions could not be asked
13 of Mr. McShane with respect to current practices or procedures
14 or procedures that have existed in the last few years.
15 But a policy that does not even seem, if I read it
16 correctly, to apply to someone in Mr. Henson's shoes that was,
17 at least based on what I've seen, discontinued at least 20 years
18 or so ago would seem to have marginal relevance, if any, and so
19 that's where I'm coming from at this point.
20 Let me look at the notes from the jurors.
21 Mr. Rosen: Your Honor, can I ask a question?
22 The Court: Yeah. Let me read these notes first.
23 Mr. Rosen: Okay.
24 (Pause in proceedings.)
25 The Court: Okay.
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1 Mr. Rosen: Two things. With respect to the, your
2 honor's observation about not being in a position to make a
3 ruling until you hear the actual testimony, as I understood
4 Mr. Berry's intention of using this, it didn't go to anything
5 that Mr. McShane would testify to, and indeed he won't.
6 It's more like the general credibility issue.
7 Regardless of what the witness says, the first question is,
8 "weren't you convicted last year of a crime involving moral
9 turpitude?"
10 It's not like the cross examination is going to
11 relate to the direct, so that I can assure you Mr. McShane is
12 not going to be talking about Fair Game.
13 Mr. McShane is going to be talking about his
14 involvement in RTC, his responsibilities as president, his
15 activities in policing the copyrights and going after
16 infringers, and the injury that befalls RTC by virtue of the
17 activities of people like Mr. Henson. Nothing that would even
18 remotely be in the category of opening up the door, so to speak.
19 The Court: Well, what you tell me does cause me
20 concern about what that opens the door to. If he's going to
21 say, try and attribute, and I don't know what he would say, that
22 there was some injury caused to RTC by Henson, whatever that
23 injury is, they can certainly probe other possible causes for
24 that injury, which may open a door you don't want to open.
25 Mr. Rosen: That's one I appreciate, because if I do
80
1 elicit that very question, then I understand that they may
2 certainly be allowed to say, "well, the injury wasn't caused by
3 Henson. It was caused by Mr. Ward" or something like that.
4 The Court: Or something totally unrelated to either
5 one.
6 Mr. Rosen: Right, I agree with that.
7 But what I'm pointing out is that there will be
8 nothing in the direct examination which will open the door to
9 the two things that Mr. Berry identified, and that is Fair Game
10 and going through a list of cases in which the courts have held,
11 have found certain practices by Scientology. That will not
12 relate to any direct testimony.
13 The Court: Well, certainly the fact that some other
14 court found, in its circumstance, something happened would be
15 totally irrelevant. I would agree.
16 I understood Mr. Berry, and he can certainly correct
17 me if I'm wrong, to say he wasn't sure whether going into fair
18 game would be even relevant until he heard what Mr. McShane
19 testified to.
20 So I don't think, based on what he said, that he's
21 necessarily going to do it unless Mr. McShane gets into certain
22 things, which I don't know what they are.
23 Mr. Rosen: Okay. Well, if that's -- I did not
24 understand Mr. Berry to say that, but if that's what he said, in
25 essence, "I will not go into Fair Game unless you have opened
81
1 the door on direct so that Fair Game becomes relevant" --
2 The Court: I don't know that he said that, but he
3 said -- Mr. Berry, please correct me if I'm misquoting you,
4 because I don't think I am -- that he wasn't sure, until he
5 heard what Mr. McShane said, as to whether Fair Game would be
6 something that he would even seek to get into.
7 Mr. Rosen: Okay.
8 The Court: Is that a fair statement?
9 Mr. Berry: That's fair, your Honor. This is all
10 conjecture because I haven't heard Mr. McShane. If Mr. Rosen
11 wants to give me an outline of direct if he wants to hear the
12 cross, fine. But at this stage, I'm in a vacuum.
13 Mr. Rosen: Two other points if I can raise them
14 quickly?
15 With respect to the first ruling that your Honor
16 made, if I understand correctly now, Mr. Henson can say -- and
17 by the way, it is conceded, it is admitted in depositions and
18 the like, and we will play that for the jury, he knew it was
19 copyrighted. There's no question about that.
20 Mr. Henson can say, "I had a -- I believed that, a)
21 the work was practicing medicine without a license; and b) I
22 believed that, because of my first belief, it superceded or
23 trumped the copyright statute and gave me license to infringe."
24 The Court: And he would have to have, to show that
25 he had a reasonable belief for that.
82
1 And I -- theoretically I could conceive, and i'm
2 thinking of maybe some tax cases, where somebody could have --
3 maybe a tax case isn't a good example, but somebody could have a
4 belief that was reasonable that was contrary to the law, because
5 based on the information they had, that was their honest and
6 reasonable belief.
7 I think there is one case, a copyright case, that
8 suggests that even though fair use might not be available as a
9 defense, if someone reasonably believed that they had a fair use
10 defense, even though they didn't, that that might be a defense
11 to willfulness.
12 Mr. Rosen: The problem I have with that is your
13 honor has taken the objective arm of the defense out of the
14 case, because if Mr. Henson believed, because of some
15 idiosyncratic notion --
16 The Court: You're mishearing me. It's got to be
17 what would be reasonable to a person with the information that
18 was available to Mr. Henson. That doesn't mean that he
19 necessarily got it, but was available to him.
20 So your position, I'm sure, would be, "look, if you
21 understood this was a copyright, what checking, if any, did you
22 do to determine whether or not there was any basis where you
23 could publish something lawfully without the author's permission
24 if it were copyrighted?"
25 Mr. Rosen: Okay. And maybe the reason I'm saying
83
1 this is because I already know the answer to that question, and
2 the answer is, "none. I did nothing."
3 The Court: Well then, you may have a very strong
4 case. I don't know.
5 Mr. Rosen: Okay. One last item, which is we have a
6 new problem. I've asked Mr. Berry at 1:30 To please comply with
7 the subpoena we served to produce the documents we spoke about
8 last week when your Honor ruled that Mr. Henson could plead
9 financial inability to pay, and Mr. Berry told me he wrote a
10 letter to Mr. Hogan, and I said, "I don't know what you're
11 talking about."
12 The subpoena was returnable at 1:30 Today. Do we
13 have documents or don't we? And I can't get a straight answer.
14 So I have a subpoena outstanding. It was served on
15 Mr. Henson on Saturday. It required production of those
16 documents at 1:30 Today and it has not been complied with.
17 The Court: Isn't it -- well, I would have to see
18 it. What's the section under which you served the subpoena?
19 Mr. Rosen: Trial subpoena, rule 45.
20 (Pause in proceedings.)
21 The Court: Sure you're talking about 45?
22 Mr. Rosen: I thought I was. I better take a look.
23 The Court: It might help if I looked at the right
24 book. I pulled my criminal, not civil.
25 Mr. Rosen: Let's see.
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1 The Court: Yeah, 45 is right.
2 Mr. Rosen: Yeah.
3 Mr. Berry: Your Honor, may I borrow the clerk's
4 copy of the rules? That's one thing I left behind.
5 The Court: Sure.
6 (Pause in proceedings.)
7 The Court: Well, rather than take time now, I'll
8 look at the section. What I was trying to see, and my memory is
9 not good enough off the top of my head, is as to whether or not
10 the burden of -- one is the timeliness, and two is the burden,
11 if somebody refuses to produce documents pursuant to a subpoena,
12 or objects to producing, that places the burden on you or the
13 burden on them to bring it up with the court.
14 Mr. Rosen: I think the answer is, on the timing,
15 it's reasonable under the circumstances, and obviously since we
16 just found out about it, that's the case.
17 And I believe that the obligation to object, timely
18 object prior to the time for compliance, is the burden of the
19 party subpoenaed.
20 So that the remedy, if there is no compliance and no
21 timely objection filed as of 1:30 Today, the return date, is the
22 remedy is on my part on a motion for contempt.
23 In this case, I believe the remedy would also fall
24 under rule 37 since it's a party, and the remedy under rule 37
25 would be the sanction of precluding the evidence of Mr. Henson's
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1 alleged pecuniary status.
2 Mr. Berry: First of all, your Honor, timeliness is
3 the issue; secondly, the subpoena process is the issue; thirdly,
4 the fact is that it was improperly served on Mr. Henson after an
5 all night stake out instead of on his counsel is the issue.
6 On all grounds, it's invalid.
7 The Court: 37 Deals with discovery.
8 Would somebody file with me the copy of the
9 subpoena, and I'll take a look at it.
10 Mr. Rosen: Here it is, your Honor. May I hand it
11 up (handing)?
12 The Court: I take it, Mr. Berry, that Mr. Henson
13 does not intend to comply with that?
14 Mr. Berry: He'll comply with -- Mr. Henson, through
15 his counsel, having made objection to this as an improper
16 procedure untimely --
17 The Court: I'm just asking, not whether your
18 objection is right or wrong, I'm just asking if you intend to
19 comply.
20 Mr. Berry: We don't intend to comply with the
21 subpoena, but we will comply with whatever the court orders
22 having adjudicated the situation.
23 Mr. Rosen: My application was for contempt and to
24 preclude it. I think it's a little late in the day for
25 Mr. Berry to be raising objections like it was served on the
86
1 party rather than counsel. It's supposed to be served on the
2 party, number one; number two, it's supposed to be served in the
3 district. We faxed copy a copy --
4 Mr. Berry: On Monday.
5 Mr. Rosen: No, on Saturday.
6 The Court: You people are doing everything to make
7 this as difficult as possible.
8 Mr. Rosen: I apologize, your Honor.
9 The Court: I will take a look at the subpoena.
10 I'll tell you tomorrow morning what I'm going to do about it.
11 Anything else that -- oh, let me share with you the
12 notes from the jurors.
13 (Pause in proceedings.)
14 Mr. Rosen: I guess, your Honor, our best efforts at
15 the questionnaire were unsuccessful.
16 The Court: It's in the water or something.
17 Judge Infante just started a trial and after he started and went
18 over in detail hardships, got a jury that had issues come up.
19 So it's -- I hate to even suggest this, but does
20 counsel want to talk and see if they have agreement as to what
21 should be done? If not, I'll make a decision.
22 Mr. Rosen: Give us one moment.
23 The Court: Given the shortness of the trial,
24 obviously all we need is six people. I'm concerned about having
25 people on the jury that don't understand the evidence.
87
1 Mr. Rosen: Your Honor, could we just have a moment
2 to confer?
3 The Court: Sure.
4 (Pause in proceedings.)
5 Mr. Rosen: The question was raised, I think I know
6 the answer, but can't we just grab the next two off the list? I
7 don't believe that's appropriate, but let me just, since the
8 question was raised, let me ask your Honor.
9 The Court: Well, the problem is that we're --
10 everybody is scheduled to start tomorrow morning. I don't think
11 delaying the trial makes sense. And then there is a problem
12 with people having been excused.
13 Mr. Rosen: Yeah. I didn't think that that was
14 doable, and I think you'd have to go through all the charge
15 again since they didn't hear it.
16 The Court: True.
17 (Pause in proceedings.)
18 The Court: While they're discussing that,
19 Mr. Rosen, I assume tomorrow you intend to call Mr. Henson
20 first.
21 Mr. Rosen: Yes.
22 The Court: And then Mr. McShane, if you call him?
23 Mr. Rosen: Correct. I don't think we're going to
24 reach Mr. McShane tomorrow because with opening statements and
25 the direct of Mr. Henson and some cross, I think that will be
88
1 the day.
2 The Court: Okay.
3 Mr. Rosen: We are operating and discussing under
4 the belief that the options are extraordinarily limited. One
5 possibility is accepting a jury of five if we lose one over the
6 weekend, accepting a verdict of five.
7 (Pause in proceedings.)
8 The Court: Mr. Berry, I know Mr. Rosen is there.
9 If you want some privacy to talk to your client --
10 Mr. Berry: No, no. The issue, your Honor,
11 basically is do we stipulate to a jury of less than six should
12 the occasion demand it?
13 Mr. Rosen: Actually, the stipulation I proposed is
14 not less than six, but five. And what I'm concerned about is if
15 we let these two go, we have no safety net.
16 So if we start with six and we lose one over the
17 weekend and one doesn't come back for illness or whatever on
18 Monday or Tuesday, I'm proposing to stipulate that we'll take a
19 verdict of five. I'm not proposing to stipulate to take a
20 verdict of less than six, i.E., Two if, for some reason, four
21 don't come back.
22 The Court: Let me just make clear, I'm not
23 proposing any particular solution. I just want to see if you
24 can agree. If you can't, then I'll make a ruling. Obviously I
25 would prefer that you agree, because that makes it simpler for
89
1 both sides.
2 Mr. Berry: Well, I have a problem with two people
3 who don't speak English, your Honor, and what that might entail
4 in deliberations.
5 The Court: Well, I don't know that they don't speak
6 English.
7 Mr. Berry: Well, understand English.
8 The Court: I have a concern too. I haven't looked
9 back at the questionnaires they filled out to see if there's
10 anything that, in hindsight, should have alerted any of us, but
11 that --
12 Mr. Berry: And --
13 The Court: -- Was a specific, as I recall,
14 instruction.
15 Mr. Berry: I would prefer to put the issue of
16 stipulation of less than six to less than five. Often times it
17 doesn't become an issue. If it becomes an issue --
18 Mr. Rosen: I'm not sure where that leaves us.
19 The Court: I take it both sides are in favor of
20 letting one or both people go, or not?
21 Mr. Rosen: I'm in favor of letting them go,
22 provided we don't have to do this again. And I don't want to
23 take the risk of losing one juror, you know, over the weekend.
24 So I'm willing to let the two go if there is an
25 agreement that we accept a verdict of five if only five return
90
1 next week.
2 If Mr. Berry is not prepared to agree to that, I'm
3 not prepared to say let them go, because we have no safety net,
4 Judge, in case something happens.
5 The Court: I'm not passing judgment, I'm just
6 asking the question. I know what I'm going to do if you can't
7 agree.
8 Mr. Berry: Your Honor, the defense would accept the
9 wisdom of solemn.
10 The Court: Well, what does that mean? That means
11 if I let them go, that means you'll agree to his proposal, or
12 won't agree to his proposal?
13 Mr. Berry: Well, your Honor said that the court had
14 a mind what it would do.
15 The Court: What I said was if you two don't make a
16 decision, I'll make one. I always prefer to have these things
17 worked out, but if they can't be, that's my job. I'll make a
18 decision.
19 Mr. Berry: We don't have a problem getting rid of
20 the two. The problem is stipulating to a verdict of five.
21 The Court: Let's quit fooling around with it. I'm
22 going to excuse Paul yeh. I'm not going to excuse -- I can't
23 read her first name, Yeh, and she's the one that says, "I have
24 some problem with English. Some word needs -- some words need
25 more explaining."
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1 I'm just going to send a note back to her that says
2 "if you find you have difficulty following the evidence or
3 understanding what's going on, please let us know."
4 And also not to hesitate to interrupt if she hears
5 something that she doesn't understand and needs to have it
6 repeated.
7 And if we find it happens frequently, then we'll let
8 her go. Or if she indicates, after a period of time, that she's
9 not getting it, I'll let her go.
10 But I'm not satisfied, based on the note, that she's
11 not capable of proceeding with the trial.
12 The other juror I'm more concerned about because,
13 one, he's got a little bit of a financial hardship, but that
14 doesn't bother me as much as the fact that his indication of
15 that indicates that he didn't read the questionnaire very
16 carefully.
17 The way he's written his questions out does raise
18 some issue as to his English ability.
19 He also is complaining about a hearing problem.
20 There's enough issues and enough indication on in my mind that
21 he may just be out in a different world, and I don't think we
22 want him on the jury.
23 All right. See you tomorrow at 8:00.
24 Mr. Rosen: Thank you.
25 The Court: Okay.
92
1 (whereupon, the proceedings were recessed for the
2 Day.)
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