Eric is Now Free! Read the Eric is Free! update for details.
Day 8, September 25, 2007
The morning opened with a series of stipulations between the defense and the prosecution. The first was to admit into evidence the “advisements”that Anna was given by the Philly FBI agents. They also stipulated that Anna had filled out a 240 question psychological assessment of Eric’s personality traits (to get advice on how to respond to his “advances” towards her). Next was a stipulation about Ryan Lewis which clarified that Eric had been a friend of Lewis but that Eric was NOT a target of that investigation. The defense then admitted several emails and VHS tapes into evidence.
After this, the government attorneys asked to move two exhibits into evidence and Mark objected, saying that their case had been closed and it was too late to admit things into evidence. Judge England granted the governments request to reopen their case so they could admit the evidence. Mark then opposed the government’s efforts to call Anna back to testify, as their ability to call people for rebuttal should only be reserved for things the defense raises in their case in chief. The government said they were going to ask Anna when the idea for the conspiracy originated and that she would tell them it originated two months before Bio (this would address the predisposition issue raised the day before).
At this point the jury entered and Mark read the stipulations to them. He then played two excerpts from VHS recordings of the argument on the night of the 12th. The tapes showed Anna pushing and cajoling the group to reach a decision about which targets they should focus on. It also clearly showed the tension that existed in the group. Both Lauren and Zach were voicing their desires to slow down, and Eric was supporting them in this. Anna was clearly upset and told the group that she wished they could “stick to a damn plan.” Then the defense rested, and the government did not rebut.
At this point, the court excused the jury until after lunch and the jury instructions were hammered out. This process went fairly smoothly, until discussions began about instructions proposed by the government and the defense. In the instructions about how to weigh the testimony of each witness, the word “benefits” was removed from the instruction about Anna and the phrase “reimbursement for her expenses and compensation” was used. The instruction about the use of undercover agents or informants was altered to substitute the words “cooperating witness” for “undercover agent.” Mark voiced concern that by not using the words “undercover agent” in the instruction, the government might be shielding Anna. The judge overruled.
Mark then asked that a jury instruction be given for a lesser included offense. This would allow the jury to find Eric guilty of a lesser charge if they could not all agree that Eric should be found guilty of the offence for which he is currently charged. The lesser-included offence would be the same one that Zach and Lauren pled to. At first, Judge England agreed to grant the instruction, and he asked the government if a rational jury could find Eric guilty of a lesser-included charge. The government responded yes, but then added that they have case-law stating that the specific charge Mark was requesting was not a lesser-included offense of the original charge. At this point, England said he would grant the instruction for now, pending further information from the government. But the government kept pressing the issue and eventually the judge ruled against Mark.
Then Mark pushed for an instruction that the government had to define what types of explosive device the defendant’s were trying to create, as this was one of the “elements” of the alleged crime. The judge denied the instruction.
Next was the issue of whether or not to include an instruction about the entrapment defense. This was crucial to the defense case – without it, Eric’s entire entrapment defense would be useless. The instruction would advise the jury of the elements of entrapment and what the government must prove to overcome the entrapment defense. With little discussion, Judge England stated that only slight evidence need be raised to allow for this particular instruction, and that it was possible that a jury could look to see the issues of predisposition and inducement in this case. He stated that it would be a clear error to not give the instruction, and the instruction was included.
A discussion of the meaning of predisposition ensued. Mark claimed that case law indicates that the relevant period of time for considering predisposition is before Anna first contacted Eric in August 2004. Not only contact, but friendship and continued communication – she traveled to gatherings and protests with him and maintained email communication after this point in time. Mark stated that you have to look for predisposition at the time BEFORE any possible government inducement of crime. England rejected this argument, stating that reluctance to commit crime was probably the most important element (*this is clearly not the case, when one examines the 9th circuit case US v. Poehlman, the prevailing case law on entrapment). England eventually refused to hear further argument on the matter.
Mark renewed his motion to acquit, based on a lack of government evidence, and Judge England denied it.
Government’s Closing Arguments
Assistant United States Attorney (AUSA) Ellen Endrezzi began her closing argument by referring to the government’s opening argument analogy of a puzzle. She said the closing argument was like mapquest -that you could zoom in on the parts that are interesting or important. She said there was a lot of commentary about leadership, romance and money but that none of it was very important.
The AUSA then defined conspiracy as an agreement to break the law between two or more people, the defendant joins knowing its object, and at least one person commits at least one overt act in furtherance of the conspiracy. She stated that it does not matter whether or not the agreed upon crime occurs. In her words “we didn’t have any arsons here but that doesn’t matter for the conspiracy”. She also said “there doesn’t have to be a formal agreement – it can be inferred”. She said they don’t have to agree on everything and the overt act doesn’t have to be illegal. Then the AUSA patronizingly told the jury she used to be a teacher and she wanted them to write down some questions. The questions she told them to write down were: was there an agreement to break the law? Who was part of this agreement? What were the overt acts? The AUSA then told the jurors that when they go back and compare their notes they will find lots of overlap.
The AUSA told the jury that there were different kinds of evidence and that they carry the same weight but they would have to decide for themselves what to believe. She claimed that the entrapment defense was a popular defense because it is on tv and has an “ooh” factor. She then tried to instruct the jury about entrapment with a quote from the supreme court. Eric’s attorney objected and the judge called the attorneys to the bench to discuss it. After it concluded, the judge told the jury that only he can instruct them on the law and asked the AUSA to remove her slide with the supreme court quote.
She said that for entrapment the burden of proof is on the government and that they must prove that the defendant was predisposed to commit the crime or was not induced by government agents. The AUSA stated that for a defendant to be entrapped the government has to do more than just provide the opportunity to commit a crime – they have to provide a special incentive to commit a crime. They also must prove that the defendant was predisposed to commit the crime prior to being approached by a government agent. The AUSA discussed different factors that can be used to determine predisposition.
She said that the character witnesses that testified about Eric didn’t know about his political beliefs and so their testimony was not important because “they didn’t know the side of him that we knew”. The AUSA stated that Eric “was held in such high esteem by the protest movement he even mediated a spokescouncil meeting”. She stated that Ryan Lewis was Eric’s inspiration and that Eric believed the arsons Ryan did were sloppy. The AUSA stated that when the cabin was searched they found a year old article about Ryan Lewis’s arrest. The AUSA said that Eric was not induced because he invited Zach and Lauren to join the conspiracy and that he did not profit from any of this but that he was motivated by his core beliefs. She said that if Anna had not bought all the supplies for the group they would have just stolen them. She stated that “romance is a red herring” and that Anna rebuffed Eric.
The AUSA claimed that Eric showed no reluctance in the conspiracy. The AUSA told the jury they should look at his character. She then told them what she thought were the most salient features of his character: that he allegedly threatened Anna, that Anna claims he waved a knife in her face, that he thought that Ryan Lewis messed up, that Zach claimed Eric talked about dropping sugar or little bombs in gas stations while they passed through Kansas and his comments about the death of civilians. She said the financial incentives provided by the government can’t be considered as such because the defendant chose a lifestyle where he was homeless.
The AUSA stated that there doesn’t have to be a leader for a conspiracy. In her words “Anna could have lead, McDavid could have lead” but that it doesn’t matter. The AUSA stated that regarding Anna “she is not giving directions, if she is, it is rare” and that “if there was a tape of Anna pushing we would have shown it”. The AUSA said that “Anna lets us see Eric McDavid for who he is” meaning that Eric became more radical during the time that Anna knew him. The AUSA also took the opportunity in her closing to reiterate that Zach “is responding to questions that the FBI has about other people”, meaning individuals not connected to this case. At one point she confused Zach Jenson with Derrick Jensen and said that Derrick Jensen went to visit his mother for the holidays in Tennessee.
Defense Closing Arguments
The closing argument for the defense was made by Eric McDavid’s attorney, Mark Reichel. He told the jury that they were smart and he didn’t use a bunch of theatrics to convince them of anything. Mark stated the government had to prove conspiracy and prove that Eric was not entrapped. He indicated that this is not about Lauren or Zach, but that this case is the tale of two people, Anna and Eric.
He reminded the jurors that Zach and Lauren both testified that they were acting during much of the “conspiracy” because they did not want to let Anna down. But unlike Eric, neither of them were in love with her, yet they were still so under her thrall that they felt they couldn’t disappoint her. Mark then reviewed the testimony and evidence that established that Eric was in love with Anna. He stated that Anna, Zach and Lauren had all testified to this fact, that there was one love letter in evidence and that Anna had admitted to throwing away the other two. Mark then told the jury that Anna filled out a 240 question personality test for the FBI behavioral psychology division. AUSA Endrezzi had stated in her closing that this was done so that Anna could figure out how to let Eric down easy. Mark said that the FBI’s response to her was all about how to keep him hooked and not scare him away.
Mark stated that Eric had no predisposition to commit this crime. He stated that Eric was aimlessly traveling around and that when he met this ambitious employee of the FBI he didn’t have a chance. Anna testified earlier that she was an excellent liar on a mission to investigate political protest for the FBI. Mark refers to the recorded conversation where Anna indicates that she asked Eric how he became radicalized and Eric says that it was her. Marks talked about Lauren and Zach’s testimony and says “their motive is the 75% off sale,” referring to the 75% sentence reduction they hope to get from testifying. He referenced the AUSA’s claim that the Zach and Lauren have to tell the truth by saying “it is not my version of the truth, it is Ms. Endrezzi’s version of the truth.” Marks stated that Zach and Lauren spoke to Eric’s predisposition when they testified that he was a peaceful and gentle person. He said that Anna made an important evaluation of Eric’s predisposition when she testified that upon meeting him in August of 2004 she told the FBI he was no one of interest.
Mark stated that after the meeting in November of 2005 there was no agreement. They did not know where they would go, what they would do or how they would do it. There was still no agreement in January. Mark also stated that Eric was high at the meeting in November and that you can’t enter into a conspiracy while high and stating “if you say it while high, it might be a lie.”
Mark countered Endrizzi’s statements about Eric being a facilitator at a spokescouncil meeting in Philly at Bio (perhaps to prove he was a “leader”) by pointing out that Anna made it into a spokescouncil at the age of 17 at her very first protest. In regards to the government’s constant insistence that Eric was the “keeper” of the “burn book” Mark reminded the jury of the tape the defense played earlier in the morning, on which Anna is clearly heard asking for people to fetch the book, and Eric tells her to not worry about it. Anna brought the book to Dutch Flat and was the one who filled a large percentage of it with her “bomb recipes.”
In response to Endrizzi’s statements about the group being able to steal the supplies they would have needed – thus making Anna unimportant – Mark pointed out that it might have been difficult for them to steal a cabin in Dutch Flat. He stated that the government was participating in the creation of a case in the courtroom, just as they had in the field. All of the things that Eric allegedly said to Anna in the beginning were NOT on tape – meaning that it’s her word against his – and she is self-proclaimed accomplished liar. When Anna tried to get it on tape that Eric was the 1st one to mention the IFG and attacking federal buildings, he clearly had no recollection of those converstaions ever taking place.
In October 2005, Anna met with the FBI to create a crime – she was instructed to get three on board. In October and November there were a number of phone calls and emails from Anna to Lauren about going to California. Lauren had no wherewithal and in fact told Anna that she has panic attacks in airports and inner ear problems on planes. Anna got her to come anyway. Eric said that he had family things going on and wouldn’t be able to meet. Anna’s response is that she can’t believe how selfish he is being. Is this inducement? Yes. Did Eric have a lack of predisposition? Yes. Anna was there to get them to fix on a target, an object, and to get them more on board. All three of them (Lauren, Zach and Anna) testified to that.
Was there inducement? Anna paid for their travels. Eric was in love with her. The list goes on. Anna had one target and that was the group itself. In November of 05 the corraling really begins. If you remove Anna, the other three are tumbleweeds, going their separate ways. Is it inducement if you provide the place, all the supplies, the chemistry supplies and know-how, recipes, heart strings, $100 bills, if you are the glue, you provide advice, instruction… Yes.
Fairness is the heart of justice. It is the heart of life. Smearing (as the government has done to Eric) isn’t fair. Mark then asked the rhetorical question of whether or not the government would address new things in their rebuttal that Mark would be unable to respond to. Again, they are creating a case in the courtroom. He asked the jury to pay significant attention to the jury instructions about government witnesses and the instuction about entrapment.
Then AUSA Steve Lapham began the government’s rebuttal, which was essentially a lengthy restatement of the government’s closing argument. What follows is a summary of the statements not already made in the government’s first closing argument. AUSA Lapham said that Eric was predisposed to commit the crime because he told Anna he had been thinking about how to make explosives in April of 2005. Lapham says that the FBI began investigating Eric because he told Anna he had “something big going on in California”. Lapham also said “remember at this point the FBI has other info on Mr. McDavid’s radical tendencies”. He did not eloborate on what he meant, but stated that those were the reasons Anna was “talked by the FBI to investigate him.” Lapham said that Anna’s allegation that Eric threatened to kill her coupled with his disclosure about his idea for a “bombing campaign” meant that he was serious.
Lapham then said again that the defendant did not have to engage in an overt act in order to be convicted but that “the mere fact of coming together at the cabin was an overt act”. He went on to say that searching for sites about chemicals on the internet was an overt act and that “when they hit the start button on the computer that was an overt act”. That tangent continued with Lapham stating that visiting San Francisco was an overt act; as was boiling bleach, measuring salt and making fuses. He summed it up by saying that “the conspiracy train has already left” and “these defendants were guilty the moment Lauren Weiner bought ‘The Poor Mans James Bond’”. Lapham brought up the Derrick Jensen interview, allegedly brought to the Foresthill meeting by Eric, and paraphrased Eric’s alleged persepctive on the interview by saying “this is the guy that pumped me up and got me to believe that harsher tactics are neccessary” and “It is Derrick Jensen in this article that says I can’t decide if I want to write or blow up a dam and that is his philosophy and that is Eric McDavid’s philosophy”.
The AUSA then took a brief stab at putting their case in historical perspective by saying that since this country was founded, conspiracy has always been a problem because it involved people getting together, sharing their knowledge and encouraging each other. He then decided to respond to Mark’s assertion that Eric was high at certain points during the time period in which this alleged conspiracy occurred by saying “you can’t be high 100% of the time”. The AUSA stated “there is no inducement here, none”. AUSA lapham stated that Eric being in love with Anna was motive, not inducement, and “the law doesn’t care why you’ve committed a crime”.
The AUSA told the jurors that if they believed that Anna implanted the idea for the conspiracy in his head or took steps to induce the crime then they should acquit. He followed that by saying that there was no evidence that Anna did anything to induce or cajole anyone. Lapham went on to say that the three were not homeless and penniless in the way we are used to.
He said the FBI was “on it” from the beginning and would never have let them pull a conspiracy off. He said they had to wrangle them together to create a crime because “they ride the rails, they dumpster dive, they can dissappear faster than anyone.” Lapham said that the reason they talked and talked and never decided anything is because “this is a very egalitarian, no that’s probably the wrong word, this is a very anarchist group.” He then asked the rhetorical question – if the FBI hears someone talking about bombing the pentagon or world trade center should they just not follow up on it because they don’t think the people are capable? Lapham closed by saying Anna received no benefits and that the money she got is a small amount for the services she provided and the risks she took.
After the government rested, the jury was dismissed for the day. They were told they would receive their instructions the next morning and then begin deliberations. After the jury had left, Mark moved to get the “Sears” instruction included in the jury instructions. This instruction specifies that a conspiracy cannot exist if it is only between a defendant and a government informant. In Eric’s case, this would mean that a jury could not convict him if it found that a conspiracy only existed between him and Anna. Judge England stated that Zach and Lauren both testified that they were part of the conspiracy and this instruction would mean that the court would have to discount their testimony completely. Mark responded that Zach testified that Eric and Anna agreed on the IFG as a target – but this was the only “agreement” that Zach could point to during his testimony. England said he would review the case-law and revisit the issue in the morning. Court was adjourned for the day.
Day 9: September 26, 2007
Court began with a discussion about the Sears instruction from the previous day. England stated right away that his reading of the law indicated that the instruction would be required. He went on to say that we may need other special instructions to clarify who the conspiracy was actually between – including a special verdict form. Anna cannot be the only person with whom Eric conspired.
The AUSA responded to Judge England by saying that the instruction was not necessary because in Sears the defendant only had contact with the informant – not the other parties to the conspiracy. He also claimed that Mark never argued Eric had only conspired with Anna, and thus there would be some prejudice to the government. He claimed that the instruction was included in Mark’s original proposed jury instructions, but not in the final packet.
England pointed to Zach’s testimony and certain conversations on the tapes and said that the jury could possibly say that there had been a conspiracy between Eric and Anna, but not the other two. He said that since there was “an issue of a person’s liberty at stake” he had to grant the instruction.
Mark then stood up and voiced strong disagreement with everything that the AUSA had said, claiming that there were a number of cases where the defendant knew the other conspirators. He also made clear that there is no rule that states the defense has to explain their strategy in closing arguments.
Then the discussion moved to the creation of the jury form, in light of the new instuction. England wanted to make sure that a clean record was created, in case of appeal. The new verdict form requires the jury, if they find Eric guilty, to indicate with whom they believe he entered into a conspiracy. They’re decision on this must be unanimous.
At this point the jury was brought back into the room and read the jury instructions.
The jury deliberated until 4:30 and then broke for the day. The jury has not reached a verdict and will continue to deliberate tommorow (Thursday, September 27).
Below is the court report for yesterday (Monday). The majority of the day was taken up by Zachary Jenson’s testimony, followed by Randy Meyer of the IFG, and then the prosecution rested. Mark began the defense’s case with character witnesses. It looks as though today (Tuesday) could be our last day of argument in court, although argument could possibly run into tomorrow morning (then the jury will begin deliberations). “Anna” will retake the stand some time this morning.
Please keep calling the jail, as Eric is still not receiving vegan meals! He did receive commissary again this week. Visit www.supporteric.org for more info on calling the jail.
Day 7, September 24, 2007
[Note: This is day 7 because it is the 7th scheduled court day, though only the 5th full day of court. The previous two court days consisted of the court being informed about defense attorney Mark Reichel’s injury.]
After the RNC, Zach went back to Seattle and didn’t see Eric again until April of 05 in Seattle, when Eric stayed with him at his house for 2-3 weeks. They then hitched down the coast together, split up in Vegas and Eric went to Ft. Lauderdale for the OAS. They met up again in Philly at Bio, which is where they met Lauren for the 1st time and stayed at her apartment. Zach testified that he noticed a “change” in Eric after the RNC, that Eric seemed more “focused” and that by June of 05 Eric saw protest as ineffective. He testified that Eric had been a mediator at a spokescouncil meeting at Bio in 05. He also claimed that Eric discussed the use of Molotov cocktails at bio, and that this was typical of Eric’s new attitude.
In July of 05, Zach attended the Crimethinc convergence in Bloomington, IN. Eric and Anna were also there. Zach testified that he and Eric both attended a guerrilla warfare skillshare, although he doesn’t remember specifics about the skillshare. He claimed that they did discuss targeting federal buildings. He said that while in Bloomington, Eric identified possible targets, including banks (to burn the money), mountain top removal projects, and communist party buildings.
In August 05, Zach returned to Philly for Pointless Fest. He stated that he met Eric and Lauren at a café where they discussed protest being ineffective and using direct action. He said they planned to reconvene in the winter, and at the AUSA’s prompting he added that it was mostly Eric and Lauren who participated in the conversation. Zach claimed that Eric had alluded to direct action during the summer. He testified that Eric did not seem hesitant at this time, and that he never seemed hesitant after August of 05.
After Pointless Fest, Eric and Zach hitched back to the west coast. He claimed that while they were passing through Kansas suggested dropping sugar or “little bombs” into gas tanks.
In November at Eric’s parent’s house in Forest Hill, Zach testified that Eric claimed the group was at the house of a “known anarchist.” He also claimed that Eric told the group during a conversation at the fire pit that their discussions and meeting there constituted an act of conspiracy and that he was ready to go to jail for his beliefs. The AUSA asked Zach if Eric seemed hesitant about direct action at this time and Zach said no. Zach testified that Eric and Anna asked him that night about how he was feeling about direct action. He told them he felt comfortable, but when the AUSA asked him if he was, in fact, comfortable at that time, he said no. The AUSA then brought up an interview/article with Derrick Jensen, and asked if Eric had referred to it at the meeting. Zach said yes, and explained that the article was about “fence sitters” and how it doesn’t matter if they’re scared away by action, because they’re going to be scared away anyway. He said he recalled that the Jensen article mentions dams as a target. He said that Eric agreed with Jensen’s views.
Zach claimed that while in Forest Hill the group discussed targets, including billboards, cell phone towers, corporate buildings, and the IFG (Institute of Forest Genetics). He claimed that Anna did not indicate a particular target, but that she did ask a lot of questions – in Foresthill and at the cabin in Dutch Flat. Zach claimed that Eric brought up the idea of homemade C4 in Foresthill – a “recipe” including mixing bleach and ammonia. In Foresthill, the group decided that they would meet after the New Year to begin.
The AUSA asked Zach if Eric seemed influenced by Anna and he said no. She asked if Eric seemed hesitant in Foresthill, and he said no.
Zach then explained security culture. The AUSA asked Zach if Eric understood security culture, and Zach claimed he didn’t remember if he did, but he “assumed” he did. He also said he didn’t remember if he was given directions about security culture from Pointless Fest through January of 06. He said he signed up for email in December of 06 that he thought was secure (anythingirish).
He claimed that the group had discussed cutting off contact with their families so they wouldn’t know where they were. He also said they discussed a possible safehouse in Wyoming. Zach stated that Eric wanted security to “be pretty tight.” The government then brought forth an exhibit – an email between Eric and Zach in which Eric asked Zach to talk to Lauren about security culture.
The AUSA asked Zach if Eric asked Anna to do anything to further the plan during the weekend in Foresthill. Zach said no. Zach said he contributed $100 worth of food stamps for groceries during their time in Dutch Flat. He also said that Eric held on to the “Burn Book” the most. He claimed that Eric had voiced an opinion on the accidental death of civilians, which was that he would avoid intentionally hurting people, but that he would take it on a case by case basis. Zach claimed he didn’t want to be a part of any “accidental death of civilians,” and that Eric didn’t feel the same.
Zach testified that the group did “recon” at the Nimbus dam and at the IFG. The group parked their car at a market across the street from the IFG to hide their license plate. They told the workers at the IFG that they were students from a local college, and Eric signed in for the group under an alias (the Sean Douglas Group). Zach claims that the group considered the IFG a target on that day. Zach testified that Eric and Lauren used the internet on the 11th to search for chemical supplies, but the search was unsuccessful. They identified stores and Eric called them. At the cabin they discussed testing explosives in the desert in Nevada or Susanville.
On January 12, the group came into contact with law enforcement when Anna got pulled over for running a stop sign. Zach claims the mood was tense after the stop, and that people blamed her “a little bit” for the stop. He says he can’t remember if she was criticized. He says that Eric tested fuses on the 12th, and that it was Eric’s idea. He also claimed that Eric was the primary person mixing bleach and ammonia that day. He says he himself did not stir the mixture. Upon prompting, Zach stated that Eric seemed “like the brains” of the operation, that he was coming up with most of the ideas and suggestions. When asked if Anna asked questions or made demands, he responded that she asked questions. He claimed that Eric’s opinion usually prevailed. He also claimed that Eric was the one to calm Anna down.
Zach stated that the plot was moving too quickly for him. After Anna left the night of the 12th, the rest of the group had a discussion about setting a schedule and having personal space so things would go more smoothly. .He testified that no one that night suggested that Anna be dropped, and that no one suggested pulling out of the conspiracy. He said the plan for January 13th was to get more supplies to try again.
When asked to describe his relationship with Eric during 05 and 06, Zach said that he saw Eric like a brother. He claimed that he still considers Eric a friend, and that Eric told him he should take care of himself. The AUSA asked Zach if he had conspired, and he said yes, that he had conspired to destroy property that was harming the environment.
Mark’s Cross Examination
Mark briefly reviewed the timeline Zach laid out in his direct. Zach confirmed that he did not pick out Anna as an informant at the G8 in June 04. He said he found her to be attractive, and that they had “small” conversations.
Zach described the sleeping arrangements at Crimethinc in Des Moines (04). He said that he slept in the attic of a house, and that Anna “was sleeping with him [Eric] there as well.” Zach said that Eric had no money at this time, and that he was homeless and living off the land. He said this was his own situation as well. He said that Anna did have cash in Des Moines, and that she took him shopping at a corner store. He said that Eric at this time was honest, nice, friendly, and not violent. After Des Moines, Zach traveled to the RNC with Eric.
Mark then questioned Zach about previous drug use. He said marijuana sometimes made him feel divorced from reality and paranoid. He also affirmed that it helped him write more freely. He said he hasn’t written since May. Zach said he smoked marijuana with Eric before the fire pit conversation in Foresthill, but that they effects had started to wear off.
Zach said that Anna claimed she had been a stripper and that she had $100 bills, but that Eric never had much money. Again, he was homeless and penniless. When asked if he had ever known Eric to rent a home for a month, Zach said no. Zach said the $100 in food stamps he spent in Dutch Flat was end of the stamps, and that after that he himself was homeless and penniless again.
After the RNC, Zach and Eric went back to the west coast. Zach claims he can’t recall if Eric talked to him about Anna, or if Eric wrote love letters to Anna. After they arrived in Seattle, Eric stayed with Zach for a couple of weeks, then left. They took off together again in April 05. They had emailed through the spring, but did not discuss direct action then or while the traveled out east. Zach said Eric did not express a desire to engage in direct action in Auburn.
Zach said at some point he became aware that Eric had a romantic interest in Anna, which developed at Bio. He said he didn’t notice Anna ever spurning or pushing Eric away. She knew Eric was interested in her – it was no secret to anyone.
Mark asked Zach if he talked with the AUSA about the questions that were going to be asked during trial. He said yes, but not the exact questions. When asked if there were times he disagreed with the AUSA about what had happened, he said yes. Mark went over the process of Zach’s plea, during which time Zach affirmed that his lawyer had gone over the minimum and maximum amount of time in jail he faced and what the sentencing guidelines were. He was facing 5-20, but after his charges got reduced with the plea, he is now facing 0-5 years. He affirmed that he is now the government’s witness. He affirmed that he has not yet been sentenced, although his sentencing hearing was originally scheduled over a year ago. Now it is set for after trial. His goal is to get as little time as possible. Mark asked if the sentencing recommendation from the government was based on whether he was truthful, helpful, and offered his assistance, and Zach said yes. When Mark asked if the government was no longer the opponent in his mind, Zach said “correct.” He affirmed that the government had prepared him by giving him “pieces” of evidence to listen to. He said he wanted the government attorneys to be happy with him as a witness.
Mark then directed the conversation back to the email between Zach and Eric. Eric was in Sacramento at the time, and he says he can’t make it to the November meeting because he has family stuff to take care of. Mark asked if Eric didn’t want the group to know he was hesitant, and Zach said “correct.” He said he was acting.
Zach said that during the car ride out west in January that he was “still saying things to make them think I was good to go for it,” although he was hesitant and reluctant. He said that Anna paid for the gas during this trip. He says he does not remember Anna asking him how he felt about Eric being their leader during this trip, but he does remember a conversation (with Anna) about Anna leading them into a trap. Mark asked if that was because she was leading everybody on everything, and Zach said “it seemed like it.”
Anna told Eric to get an anythingirish email account. She was upset when Eric said he couldn’t make it to the November meeting. He affirmed that in December of 05 Eric was still trying to get a recipe from Anna, and that Eric never said to Anna that he had a recipe and that he didn’t need any help. He said that Lauren did bring books with recipes to Dutch Flat.
When asked if the government had talked to him prior to his testimony about who was the “brains of the operation” he said “yes I did.” Mark asked him if Anna had at least the same brainpower and wherewithal as Eric, and Zach said “she seemed to.” He affirmed that she had instructed Eric, and that Lauren had brought books with recipes. He testified that in July and August of 05, Eric said he didn’t want to go to the west coast on the advice of an attorney, and that he didn’t want to be involved in direct action in California. When Mark said that idea must have come from somewhere else, Zach said “I suppose so, yes.” Anna brought the laptops the group used, as well as a chemistry set.
The group spent a lot of time on the 11th trying to figure out what a hydrometer was – Zach testified that Eric didn’t know what it was, but that Anna did. He admitted that he himself is very unfamiliar with chemistry. He said he didn’t know if the “final product” at Dutch Flat would use a fuse, so he had no idea if the fuses were for something else. He had no understanding of what the final product would be called. He testified that the mixing was a failure, and that the bowl breaking added to the tension of the day. He admitted that it felt like they were a bunch of amateurs. When asked if Anna was the brains of the operation, he said she was in regards to the chemistry stuff.
In the “Burn Book,” it says “A” (for “Anna”) next to “Targets.” This was her concern and she wanted to talk about it. Eric’s name is nowhere on the list of concerns. The purpose of the book was to focus the group, and Anna encouraged everyone to write in it.
On the 12th, during the argument, Zach stated that things were moving too fast. He affirms that during this argument, Eric was advocating to Anna his (Zach’s) position. Eric says maybe they can just do billboards. Lauren was also trying to pull back. Lauren was in the kitchen during the mixing, but Anna was trying to get her to come out. Eric was sticking up for Lauren, telling Anna not to push people. When asked if Anna was pushing people, Zach said yes, that he found Anna to be pushy at this point. After the argument, Zach voiced concern that Anna had turned off her cell phone for security reasons.
Mark then asked Zach if anarchism means different things to different people, and Zach responded “yes.” He affirmed that it’s a political view that is egalitarian and concerned for others, that the poor should be helped. He said this was a vision he shared with Eric. He testified that Eric was not violent when they met.
Zach testified that he and Eric smoked marijuana the night of the 12th. They then wrote in the “Burn Book” their plans for the next day, to organize how things were going to go. He felt like things were moving too fast. He said that there were no real plans at the end of the day, but that they discussed plans later that night. Zach said that both he and Lauren’s goals during the discussion/argument on the 12th was to say things were going too fast, and that Eric was backing them up.
He testified that Lauren really like Anna, that Anna was like a sister to her and that she looked up to Anna. Zach said that Anna gave Eric money for supplies, $100 bills. He also testified that the group decided Nimbus dam would NOT be a target. The group had no specific cell towers identified as targets. The group had no agreement on fixed targets the morning of the 13th [when they were arrested]. Mark asked Zach if direct action could mean many different things (sit ins, breakaway marches, vandalism, arson) Mark asked Zach if people at convergences talk about direct action, and Zach affirmed. Zach had talked about federal buildings in July of 05. Zach affirmed that these were the same sorts of conversations the group was having on the 12th and 13th.
The government went back over the terms of Zach’s plea. He admitted having had to talk to agents about people unconnected to these charges. He said if he lies he can be recharged with the original charges. The government can recommend the full 5 years, under the current charge.
When asked if Eric had a physical relationship with Anna, Zach said yes, but only cuddling and sleeping. He named a couple other people Eric had physical relationships with. He said that Anna did not encourage Eric in his advances. He claims that he Anna told Lauren Eric was trying to force himself on her, but that Eric said he never forced himself on Anna.
He talked about how they ate out of dumpsters, shoplifted and panhandled. When asked if Eric was the same size he is now, Zach said that Eric looks like he’s lost 20 pounds [no surprise, as the jail continues to deny him vegan food…]. The AUSA asked Zach if Eric’s parent’s kicked him out, and he said no, that he understood Eric could go back home when he wanted to. He claims that Eric was not housesitting for his parents in November, but that he was actually living there.
Zach testified that Eric claimed to be the “idea man” for the group. He said that Eric expressed the desire to use a Molotov sometime between july of 04 and January of 05. He said that Eric didn’t seem capable of attacking gas stations (with sugar or little bombs) because he didn’t have the tools or supplies he would need. He said he didn’t seem hesitant. Zach said the group purchased a gas can for fuel for an explosive device.
Zach testified that Eric was not high on the 13th and that he appeared “willing to go.” When asked if Anna had not had money that morning, would the group have been able to get supplies, Zach said it would have been harder, but yes. The government then played an audio clip in which Eric is advocating slowing down, and possibly targeting unspecified cell phone towers. Anna expresses her dismay at losing the “tree factory” [IFG]. The government asked Zach who was giving the answers in this clip, and he replied “mostly Eric.” When asked how he felt when he reviewed the evidence in the case, Zach said it scared him because they “had a lot of evidence against us.” She asked him if he was guilty, and he said yes.
Mark points out that the excerpt isn’t the end of the conversation. Zach affirms that other people participate in other parts of the conversation and that it wasn’t just Eric. When Lauren later gives her views, Eric is supportive. Zach said Eric sat quietly to consider their thoughts, and that he was supportive of them. The disagreement was with the three of them and Anna.
Was the agreement still in place? “yes”
You had no idea what was in Eric’s mind, correct? “Correct”
Did Eric express opinions about going forward in this exhibit? “yes”
You were just acting, right? “yes”
So you have no idea whether or not Eric was acting also? “yes”
Randy Meyer’s Testimony
Randy Meyer works for the Department of Agriculture, USFS, at the IFG in Placerville, CA, where he is a biology technician in a lab. He has been in the field for 16 years. He says he interacts with college students regularly on the job. He says that visitors usually register in the registry book, as a security measure. He was at work on the 10th when Eric, Zach, Lauren and Anna came to the IFG. The group signed in under “Sean Douglas Group.” Randy had shaded in their entry with highlighter because he claims he was nervous about the group. He gave them brochures and pointed out the arboretum, but then saw them again later. He said they “weren’t quite doing what I thought they were gonna’ do.” He said their responses to questions weren’t making sense, as he has a familiarity with the local schools and what classes are offered, which teachers teach them, etc. He claims he spoke primarily with Eric. The government then pulled up a hand-drawn map, allegedly drawn by Eric, of the IFG. Randy testified that it was a fairly accurate representation of the property. He said if someone wanted to do mischief with the map, they could. He testified that there was a scientist who lives on site. The government then asked him about gas and fuel tanks, as well as chemical supply sheds. He said the propane tanks were not hidden and were “kinda’ hard to miss.” He said the chemical building was clearly marked on the outside, and that the chemicals would be toxic if caught on fire.
Randy said he had not been notified by the FBI prior to the group’s arrival (which he was upset about). He did not see what car they drove in, which was an indication to him that something was amiss, as no one had ever walked in off the road before. He stated that he thought Eric was the leader of the group. He did not notice anyone taking pictures or using a camera.
In a break, during the absence of the jury:
Both parties agreed to the following:
1)Cell phone towers affect interstate and international commerce
2)The Nimbus dam is owned and operated by the US Bureau of Reclamation
3)The fish hatchery is owned by the state of California
4)The IFG is owned by the USFS
1)To renew the pretrial motions to dismiss because of outrageous government misconduct
2)To renew the motion to suppress evidence of audio/video surveillance in DF because of 4th amendment violations, no warrant and Anna’s testimony that there was no place in the house the camera’s couldn’t reach Govt says Anna never testified to that, the tapes only ran in her presence, the cabin was rented by the govt so there was no warrant required
3)To move for acquittal based on Rule 29, the govts failure to establish evidence of a crime
Defendant’s Case in Chief
Eric has known Eric for 15 years. They met in High School and have been best friends since then. The last time he saw Eric was at New Years in January of ‘06. Eric M. lived with Eric G. for a while in 04 while Eric M was working construction in Sacramento. He described Eric M as honest and kind, and said that Eric never expressed violent thoughts to him. Eric told him about his travels. He said that Eric did not strike him as someone who would have been involved in explosives in 05. He said Eric offered to help others and that his disposition was that he was always happy. He said he never heard Eric talk about making explosives. Eric was part of the family – he knew him for 15 years and he had never harmed anyone.
The AUSA asked Eric “Who is Derrick Jensen?” and Eric responded that he didn’t know. Eric said that he and Eric M talked back and forth about what they believed in, but that Eric never really talked about his own political views. Eric M never told him he was an anarchist. He did share travel stories and he did tell him he was attending protests and crimethinc convergences. He said he didn’t know where he was going after New Years. Eric G was interviewed by the FBI about Eric M in April of 06, and FBI documents show that Eric G reported to them that Eric had told him he was going to Seattle after New Years. The AUSA was seemingly trying to get Eric G to say that Eric M was lying to him, but he said he wouldn’t consider it a lie. He said he had never heard Eric M discussing plans. The AUSA then asked Eric G about his political views – specifically if he was conservative then, then if he was a republican. He stated that he was apolitical.
Eric Gonzalez’s wife has known Eric M for 13 years and also considers him a good friend.
[Long back and forth between govt and Mark about when admissible timeline starts – England sides with govt, effectively stating that predisposition starts the same day as the conspiracy allegedly begins???]
Sarah has known Eric for 13 years. During that time he has stayed and lived with them. He is like a brother to her. She said he’s always been special to her. She described him as caring and loving – as family. She said he has never been a violent person, and that she was extremely surprised by the charges. She said that he did talk to her about Anna – he enjoyed her company and looked forward to seeing her again. .
The government asked if Sarah was with Eric in Philly, Des Moines, etc. No. She couldn’t remember if Eric had talked with her about Derrick Jensen. She said that Eric had not told her he was an anarchist, but that he did talk to her about Ryan Lewis. He had not talked with her about
direct action or the ELF.
Sarah is is Eric’s sister. She testified that Eric did not have a job in the summer of 05 and that he was traveling at the time. She said that her brother was completely non-violent, and that violence was not in his character. She said he is extremely peaceful and sensitive. She said he was normally happy. She testified that Eric came home for the holidays in 05. When Eric was arrested, she said she was completely surprised by what the media was saying about him being an “eco-terrorist.” When Mark asked her why she said “because he’s not.” She said he is not ok with killing people.
The govt asked her how many conversations she had with Eric about killing people, and she responded “zero.” She said that they had discussed his views on the environment, but had not discussed the ELF or ALF. She said she knew he was having friends up to the house in November. The government asked if she had heard any of the tapes, and she said yes. The government said, despite listening to all these things, you still believe he’s nonviolent? And she said yes. The government said “Because he’s your brother?” She responded that it was his character.
This concluded court for the day.
Day 4: September 17
Testimony of FBI Special Agent Krause
The day began with testimony from FBI Special Agent (SA) Richard Krause. He testified on his background, his training and the search of the Cabin that Eric, Zach, Lauren and “Anna” occupied. SA Krause said that he has been in the FBI 4 ½ years and is currently posted in Houston. In January of 2006 he was posted in Sacramento and participated in the search of the Dutch Flat Cabin on January 14. He stated that he learned how to properly execute a search warrant from a class at the FBI academy and that he had participated in roughly a dozen prior searches. He testified that the cabin was secured by a highway patrol office monitoring it on video from the time the trio were arrested on January 13 and the time of the search on January 14. He described the protocol for executing a search warrant and explained the role of the custodian of evidence. SA Krause was the custodian of evidence in this search and he stated that his job was to look at evidence in the location in which it was discovered in order to be able to testify about it later. United States Attorney (USA) Ellen Endrezzi presented SA Krause with a variety of photographs labeled government exhibits 35A-35BB. These photos were of various items found in the cabin. The items included mason jars, bleach, car battery, spray paint, sugar, Vaseline, shotgun shells, laptop, chemistry set, sifter, salt substitute, nimbus fish hatchery brochure, an article about Ryan Lewis, IDs and Zines. SA Krause indicated that over 100 photos had been taken but that not all evidence was photographed. On his cross examination SA Krause indicated that many of the photographs shown in court were not of photographs of objects in the locations in which they were found. Different items were grouped together and photographed by the FBI agents conducting the search.
Testimony of Lauren Weiner
Lauren’s direct examination was done by United States Attorney (USA) Steve Lapham. The USA asked her if she was getting anything in exchange for her testimony and she said that she was getting a deal with a 5 year maximum. She testified that she planned using explosives on different sites and that she conspired with Eric and Zach to do so. She discussed how she met Zach and Eric at a biotech protest in Philadelphia in June of 2005. She stated that she wanted to start a house, do banner drops and graffiti. She stated that at the time she felt protesting was not working but she wanted to make change. She testified that Eric told her that he and Anna discussed direct action and that she should contact Anna. Lauren stated that she and Anna talked a lot and that she was a “good friend”. She said that when she talked with Zach and Eric they discussed “boom”. The USA asked her what “boom” was and she said it was explosives. The USA asked her why she didn’t use the word explosives and she said “it’s a scary word”. The USA asked her if she knew Eric and Zach’s real names and she said that she did not know Eric’s but that she did know Zach’s. Lauren stated that when she told Anna about meeting with Eric and Zach to discuss their ideas Anna acted surprised and excited. She testified that Zach and Eric had left town at the end of the summer but that she kept in contact with them through myspace and e-mail respectively. She said she was having trouble with her roommate, hated art school and wanted out of Philadelphia. She testified that she missed “the boys” and hoped to go out west to see them because “I wanted to continue traveling like we were last summer”. She said that she asked Anna for a ride “because I had no other way out there”. Lauren testified that Anna called her and said she had an extra plane ticket and “that it was a free plane ride to California and I missed the guys” and “I didn’t see what I had to lose”. Lauren stated that when they all met in November they were excited to see each other and catch up. She said that Eric and Anna slept in the living room together. She stated that the next night they hung out and talked about ideas for direct actions, justification for them, the ELF and various possible targets. Later in her testimony, Lauren claimed that Anna purchased wine for the group that weekend and that she thinks everyone drank some (she was not 21 at the time). Lauren stated that Eric quoted something Derrick Jensen said and she asked him for the interview. Lauren said she recalled Eric saying what they were talking about was illegal and that they could go to jail. When asked by the USA what she thought of that she said “at
that point in my mind, everything seemed illegal”. Lauren said they talked about scouting out cell phone towers as targets and that she had some photos of cell phone towers in New York. The USA asked Lauren about who brought up the “tree factory” or the Institute of Forestry Genetics (IFG) as a topic. She stated that Eric and Anna had discussed it. At that point the USA asked her if it was Eric’s idea and she said she did not know. The USA showed her a government exhibit which was an article about genetically modified trees and asked her if she remembered it. He asked her who brought it and she said she didn’t know. The USA pressed her further on it and she said they had all brought zines and she didn’t know whose zines were whose. The USA asked Lauren about Eric’s explosive recipe. She said that it sounded “more like a heresay recipe than anything concrete” and so she decided to look for recipes herself. The USA asked Lauren about “going underground”. She stated that a loose discussion took place on this issue, but that “nothing was really decided upon”. She said that she and Eric both discussed how they were dealing with difficult family issues and would have a hard time not having contact with their families. The USA asked Lauren to explain “security culture” to the jury and she described it as not talking about illegal activity. The USA asked her about the discussion about claiming their actions for the ELF and she said it never came to any conclusion. He asked Lauren if it was clear to her that everyone knew the ELF guidelines and she said “I don’t know”. She said that their attitude about that was: we’ll see when we get there. The USA asked her what her plan was for their next meeting and she said it was to start planning. She testified that after their meeting in California in November of 2005 she bought “The Poor Man’s James Bond” and “The Survival Chemist” with her credit card online. Lauren stated that Anna came to pick her and Zach up in DC so they could come out to California in January. She testified that she believed Eric really loved Anna and thought for a long time that they were in a relationship. Later she testified that it always seemed like they had secrets with each other. She said that they had all talked about not getting together since they would be living in close quarters. The USA asked Lauren how the burn book was created. She said Anna showed up with the “burn book” and had written six explosives recipes. She said that she was surprised and disturbed because she didn’t want to write things down. Lauren stated that Anna replied they would burn the book when they were done with it. She said Eric immediately agreed with Anna even though he had opposed writing things down on an earlier occasion. The USA then asked Lauren about if they all discussed the death of civilians. She said yes, that “it scared the shit out of me to think about it”. He asked what Eric’s feeling about it were and she said “to take all necessary precautions to avoid it”. He asked her what actions they discussed and she said the following: unspecified action against world bank, going into a bank and burning all the money, going to a bank and gluing the locks and ATMs, cause a blackout in the bay area, IFG, Huntington Life Sciences action, gas stations, getting rid of dams by the ocean so salmon can spawn and hijacking a truck full of jam and spilling it all over the road to jam up traffic. She stated repeatedly throughout her testimony that they never came to any agreement on a target(s) at anytime. She said that government buildings were not really discussed. She stated that they went to the Nimbus fish hatchery and discussed blowing the gates off the fish ladders “somehow”. Lauren testified that they looked at the dam from the bike trail and she said they should go out in the desert and try pouring concrete and testing an explosive on that. Lauren also said that she went with Anna, Eric and Zach to the Institute of Forestry Genetics (IFG) and presented themselves as students at American River College. She said that the person who gave tours was not available and so they did a self guided tour until they ran into the tour guide. She states that she was looking at the positions of the cameras and Eric was sketching the layout of the place. Lauren stated that they all went to San Francisco together to visit friends, to go to the library to do research and to look for supplies. She said they weren’t able to find what they were looking for and so they had to go to a Walmart along the way, but still couldn’t find everything. She stated that due to these circumstances one more shopping trip was required.
Lauren testified that she met Zach and Eric at a bike space in Philadelphia and that they later introduced her to Anna at a really really really really free market in a park. She stated that she let Eric, Zach and Anna stay with her and talked to them about how/why they traveled. She testified that Zach, Eric and herself all had very little money and dumpster dived, begged, hopped trains, hitch hiked and ate at soups kitchens at various points in time. She further testified that Anna bought them meals and groceries whenever she saw them, that she drove them from West Virginia and to Bloomington for the 2005 crimethinc convergence and that once they were there she bought them tents. She also loaned Lauren money at that point and stated that she had lots of money because she was a stripper. Lauren testified that when Anna stayed at her house during the biotech protest of June 2005 she bought them all goggles and vinegar and said they should use it if they got tear gassed. Lauren testified that Zach and Eric were good, gentle people who always shared and were honest. Eric’s attorney Mark Reichel asked Lauren how she felt about flying and she stated that it was painful for her because she had inner ear problems and had panic attacks in places like airports. Mark asked her about about her time in jail and her agreement to testify. She said that she was in solitary confinement and that she was miserable. She stated that she was granted bail but began cooperating before she left jail. She said she agreed to cooperate to get a sentence reduction. She acknowledged that the government keeps postponing her sentencing until after Eric’s trial, and that she doesn’t want them to be unhappy during her sentencing. She testified again that there was not agreement on targets, on claiming the action for the ELF or on a definite time to meet again. She stated that after the November meeting Eric was reluctant to meet, that Anna was trying to get in touch with him and that he was difficult to keep in touch with. Lauren testified that the night before their arrest Anna got angry at them and left because of “lack of plans”. Lauren testified that she worked with Zach and Eric on a schedule to prepare for an action in order to appease Anna. She also testified that she and Eric were extremely high at the time that this document was written in the “burn book”. She said “It was very good marijuana and I was not in a good state of mind so I don’t remember much”. Lauren stated that they never reached an agreement on a recipe that they should use. She was also upset that the group had no fixed goals and no target agreed upon. She said that Zach was hesitating and reluctant to move faster, which also upset Anna. Lauren testified that “Anna paid for most group things” including the items they tried unsuccessfully to make explosives with. Lauren said “She had lots of $100” and would give them to Eric to go in and buy things, so that he would be paying for stuff but it would be her money. Lauren stated that Anna also brought a big chemistry set to the cabin, though no one asked her too. Lauren testified that Anna taught Eric how to make fuses with gun powder and trick candles. Lauren also testified that she felt Eric was unsophisticated when it came to explosives and that his “heresay” recipe sounded unworkable. Lauren testified that Anna wanted everyone to identify targets and that she was the main person interested in this. Lauren said “she kept saying everyone needs to be a part of this” in reference to mixing explosives and “I remember Zach having a panic attack”. At this point Eric told Anna to “chill out.” Lauren testified that Eric paid for no groceries while in Dutch Flat and that no one gave Anna money for the cabin. Lauren stated that she had no other place to stay, no transportation, no plane fare and too much stuff to carry hitch hiking, so it would be very difficult for her to survive without Anna’s patronage. Lauren testified that they gave up on the Nimbus Dam as a target and did not agree on the IFG as a target. When Mark asked her who their leader was she said “there was no leader.” When Mark asked her about the sleeping arrangements in the cabin, she said that she and Eric were sleeping in the master room together because she got scared alone at night, and that there was no sexual content at all. She claimed that Eric slept next to the wall and she slept near the door. She says she does not remember Eric crawling over her on the night of the 12th to get out of bed. Lauren stated that the reason they did not set a date for their meeting in January is that “we didn’t even know if we had a place to stay, how we would get out there or when we would leave”. The USA said “so there were some variables” and Lauren responded “There were tons of unknowns”. All of these problems were solved by Anna. Lauren said “I had thoughts about quitting but I wanted to slow down and think about it more”. Lauren also said “Anna was like a big sister to me”. Mark asked her “were you acting to make Anna happy” and Lauren said “Yes”. Lauren said she wanted “to impress” Anna and that she wanted Anna to think that she was dedicated.
Lauren said “She wanted me to come outside and mix explosives and I really didn’t want to” In regards to targets Lauren testified “we never picked one, we couldn’t decide” “that became a conflict as well”.
“Objection, he’s badgering his own witness”
Testimony of Stephen Fowler
Officer Fowler testified that he has worked for the Vallejo police department since 1995 and is a member of the Joint Terrorism Task Force. He conducted the computer forensic exam on the laptop that the four used in the Dutch Flat cabin. Officer Fowler indicated in his testimony that the training he received in computer forensics was a 30 minute conversation with an FBI computer specialist named Art Dorell. He described the process as imaging the hard drive of the computer and then using software to look at all the different pathways on the hard drive to indicate what internet searches had been done on the computer. Officer Fowler testified that there were various internet searches done on scientific supply stores, potassium chloride and hydrometers. When asked by Eric’s attorney whether there were any searches done regarding the ALF
and the ELF he said he couldn’t remember. When Mark tried to ask him about what he did remember he replied “I just recall what was put in front of me” indicating the papers the USA gave him. He said there was no way for them to know who was using the computer at the time of the searches.
Testimony of Zach Jensen
Zach stated that he was arrested at the G8 in Brunswick, Georgia and that he started using the nickname Ollie. He stated that he has been cited for marijuana possession several times and used to smoke marijuana heavily. He testified about the conditions of his pretrial release and his job as a pizza delivery boy in Washington. He also claimed that he has been allowed the use of a computer (without internet access) so he can work on a book he is writing about his travels. He testified that he is no longer an anarchist “because anarchist politics pales in comparison to the higher experiences of life”. He stated that he ran into Anna on the way to court and has no harsh feelings towards her. That the terms of his plea agreement require him to testify and that if he is not truthful he can have his original charges reinstated, be charged with perjury or obstruction of justice and all the information he gave the government can be used against him. He said that he hopes the government gives him a good recommendation when it is time for sentencing. Zach testified that he met with the USA four times for three hour sessions to prepare for his testimony. When the government attorney asked Zach what the Number 1 rule of testifying was he replied “Tell the truth.” He stated that the four of them talked about burning buildings and creating explosives. He said he
met Anna at G8 and Eric at the crimethinc convergence in Des Moines in 2004. He described Eric at that time as “pretty friendly,” “good energy,” “charismatic,” and “magnetic.” At this point the government attorney began questioning Zach about Eric’s current partner, who was also in attendance at the Crimethinc convergence and the RNC. Zach claimed that the two stayed in touch during this time and that she had a way of contacting Eric that he did not (cell phone). This is a curious statement in light of the fact that Eric’s lack of a cell phone seemed to be of serious concern to the judge during Eric’s bail hearing. Zach said that later he met up with Eric at the Republican National Convention protest and that they discussed Molotov cocktails. She asked him who’s idea it was and he said he didn’t remember. At that point the court adjourned for the day.
Upon arriving in court this morning, Eric’s lawyer, Mark Reichel announced that he had injured his back this morning and needed to go see a doctor, as he was having trouble breathing. Because of this, court was in recess for the morning session. As of right now (1:00), it appears that we will not be in court again until tomorrow morning (Wednesday, September 19) at 9 am (501 “I” Street, 15th floor, room 3). If you are planning on attending trial, please come dressed appropriately for court. No food or drinks are allowed in the courtroom, and please make sure you turn off your cell phones and other electronic devices. Also, it is in the best interest of Eric’s case that no one speak with the media.
Also – Eric is still being denied vegan meals! Please keep calling the jail and request that Eric be provided with food he can eat. When you call be prepared to sit through lots of transfers and ringing. The person who made the decision to deny Eric food is Lt. Ilg. You can also request to speak with his superior, Scott Jones. Make sure you have Eric’s X-ref number handy: x-2972521.
Jail administration: 916-874-6905
You can also try writing:
Captain Scott Jones
651 I St.
Sacramento, CA 95814
Yesterday was the third day of Eric’s trial. Below is a very long, detailed report about what happened. Here is a quick summary:
The day started with Mark’s (Eric’s lawyer) cross examination of Anna, the Cooperating Witness in the case. This lasted all morning, and continued on after lunch. After Anna’s testimony, the government called FBI Agent Matt St. Amant, a member of the CHP and the JTTF who participated in the arrest. After a quick testimony from St. Amant, the government called Ricardo Torres, an FBI agent from Philadelphia who was also Anna’s handler. Mark finished his cross of Agent Torres and we adjourned for the day.
Please remember that we will not be in court again until Monday, September 17. The government has indicated that they will be calling Lauren Weiner on Monday, and we expect Zachary Jensen to follow. Court starts at 9 am at 501 I Street, 15th floor, Courtroom No. 3. We would love for everyone to come and show their support for Eric. It’s been really great for him to have so much love and strength backing him up during this last week. Please remember to come dressed appropriately for court. You will need your ID to get into the courthouse. We cannot have food or drink in the courtroom, and please remember to turn off your cell phones! Also, please keep in mind that it is in the best interest of Eric’s case that no one talk to or engage with the media.
Also – Eric is still being denied vegan meals! Please keep calling the jail and request that Eric be provided with food he can eat. When you call be prepared to sit through lots of transfers and ringing. The person who made the decision to deny Eric food is Lt. Ilg. You can also request to speak with his superior, Scott Jones. Make sure you have Eric’s X-ref number handy: x-2972521.
Jail administration: 916-874-6905
You can also try writing:
Captain Scott Jones
651 I St.
Sacramento, CA 95814
Court Report from 9/12/07
The morning began with Mark’s cross examination of Anna. She confirmed that she met Eric in August of ’04, but had been undercover prior to that time. Mark then brought out his first exhibit – an email that Anna had posted on a militarywoman.org website in July of 2002, stating her interest in military counter intelligence. At this point in time, Anna was 15 years old. She said that it had “always been a dream” of hers to join the military. When Mark asked her about this statement she responded that it had been a goal for her when she was younger, but that her goals changed. The online post also said that she would be enlisting in a few weeks. You can read these online posts at: http://militarywoman.org/forums/search.php?searchid=5827
Mark then began to move back through the timeline of her undercover career. She was undercover at FTAA, which she agreed was a “political protest.” She affirmed that she knew she would have to assume a role to do this. She also said that she knew there was violence between the police and the protesters at the event and that there was a lot of media about it. When Mark asked her about police misconduct, she responded “I think the city handled it very well.” She affirmed that she had to sneak in to the planning meeting, and had to fool the other protesters to be involved. From here Mark jumped forward to her interview with the FBI in Sacramento in November 05. At this interview, which was not recorded, Nasson Walker gave Anna instructions on how to conduct herself during her investigations. She stated that she considered this information to be important, but that she did not take notes. She reaffirmed those instructions from her previous testimony- don’t be a leader, don’t give instructions, don’t push or cajole, don’t manufacture. Then Mark returned to the timeline. In late November/early December of 03 the FBI asked her to do work for them. It was her first official job for them – the RNC, DNC, and G8. She clearly stated “my job was not to look at political protesters” but at “certain violent segments.” When asked if she had any law enforcement training at that time, she said no. When asked if she has had any law enforcement training at this time, she said no. She made it clear that she was not an agent, but that her mission was to keep her eyes open for illegal activity and to observe. She did not keep a log, but reported back to the FBI through real time with cell phone calls and text messages. She said she participated in protests at the G8, which is also where she met Zachary Jensen. She said she witnessed a breakaway march, which she claims was allowed to disburse. Anna stated that she was “relieved” that she hadn’t been found out at the end of the protest. Next she went to the DNC, where she had adopted the persona of a medic because she knew that protesters needed medics and perceived them to be people in a responsible role. Anna has had no formal medical training. When Mark asked her how she handled this, she told him that she wore the attire, but if someone approached her for help she would “pass them off” to someone else. Next she went to Des Moines Crimethinc, where she met Zach and Eric. She affirmed again that her role involved A LOT of lying. She spent 3 days in Des Moines with Zach and Eric, sleeping upstairs in a farmhouse with them. She said she couldn’t recall whether Eric slept right next to her. She stated that at this time, she viewed Eric as non-threatening, inconsequential, and that he looked “gentler” than the other people there. Because of this she buddied up with him. Despite viewing Eric as “inconsequential” she nonetheless reported back to the FBI about him. She exchanged emails with Eric and they agreed to see each other in New York for the RNC. At the RNC she reunited with Eric and Zach and spent just as much time, if not more, with them. She claimed that during the RNC Eric made comments about illegal activities, which she reported, but after the RNC she did not report him as someone that needed to be followed. She then claims to have had no contact with Eric until June 19 of 05. Mark then asked her why she would have written people in May asking about him. (He had an email from someone whom she had emailed in May asking Eric’s whereabouts) She responded that, at the request of the FBI, she was attempting to use old contacts to get back into protest circles. In the email Mark was referencing, she had written about the Halliburton protest and said, “i’d love to have a party, if you know what i mean” “You gonna’ come play with me, then?” In the same email string she wrote “Do you guys need anything? Supplies, paint, chains, nails, pipe, anything? Tar and Feathers? Like I said, disposable income, so ask around all your contacts. It’d be safer to bring from outside as well. So what are we gonna do? :)” Mark referred back to the guidelines she mentioned in her previous testimony and asked if this was a “suggestion.” Anna responded that it was a “question about what supplies they might need.” Mark asked if Eric had written her love letters, to which she responded that he had indicated his interest in her between August and May. Anna told Weiner in January of 06 that Eric had written her three love letters. Mark then asked her about a meeting on Weiner’s balcony during the bio conference in Philly. She said that she did have an interaction with him on the balcony, just the two of them. She affirmed that he had written her a love email on October 26, so she was aware of his feelings for her in October of 05. Anna said she couldn’t recall if he had written her previously. As a CS, she was supposed to give the FBI any important communications, so Mark pressed her about where the other 2 love letters had ended up. She said she couldn’t recall. Mark asked her if she spurned Eric’s advances and she said that answer would require an explanation. But it is clear that he did not tell him to knock off the romance talk in her email response. She claims that she was in the process of leaving her work with the FBI when she was in Philly, but soon after she went to West Virginia to pick up Eric and they traveled to Crimethinc in Bloomington, IN, where she reported on activities there to the FBI. Mark pointed out that Anna claimed Eric was on their persons of interest list in Sacramento, and now instead of tracking him down they could have Anna watch him. This was before the FBI had given her any instructions on conduct. In her testimony on Tuesday, Anna claimed that Eric had voiced approval at Bloomington for blowing up federal buildings. Mark then referenced a conversation in January in which she asks Eric about that statement and he tells her he wasn’t at that skillshare. Mark asked her if she wanted to get something on tape about it, which she affirmed. But the opposite happened, he said. Correct, she said. Then they went back over her testimony about Ryan Lewis. She said that Eric told her Lewis had done his action too close to home, and if he was going to do something it wouldn’t be so close to home. Anna was not wearing a body wire at this time, which means this conversation is not recorded and the only “proof” is her word. Mark then got her to agree that she had to be very good at deception, at participating in a lot of lies. He asked her what kind of training she had received on how to lie. None. What classes on how to lie? None. He asked her if it was a difficult thing to do, lying all the time. She said yes, but she overcame it.
The cross then moved to the meeting in November of 05. Mark questioned her on conversations that she had with Weiner about the meeting. She said that Weiner initially expressed reluctance about coming out to California due to money problems. At first Anna said that she never saw them with large sums of money, but then stated that they often had expensive equipment, such as camping gear. Since the FBI wanted her on the west coast, Anna volunteered to pay for Weiner’s plane ticket with the understanding that Weiner would pay her back for it. But Anna even went so far as to pay for Weiner’s cab fare. She said she didn’t recall that, but in an email she clearly states that she will. In one email she states “I’m taking care of everything. Trust me.” On November 4, Anna sent Weiner an email stating that she had an “awesome, devious” plan to get them all to California.
Mark then referenced several conversations between Weiner, herself, and Eric in which she was complaining that Eric was “selfish” for not being willing to take a day off from “family time” to meet with the group.
At this point Anna had not received any specific instructions from the FBI on how to conduct herself, only general. Mark asked her if they went over the attorney general’s instructions with her. She said that they had gone over the instructions with her in a telephone conversation from the Philly FBI office in October or November of 05, but did not provide her with a copy of the guidelines. She says that they have not talked to her about them since, including in the last two weeks. She said that Agent Ricardo Torres was her “handler” and that he was the one responsible for her following the rules. She claims that he did go over them with her in June of 05, as did the agents in Miami before her work there. She said she has never read the entire section. The age requirements state that a person must be no younger than 18 (she was 17). She affirmed that she was not supposed to go to strictly political meetings or report on people doing strictly political things. She said she signed an “FBI Admonishments” form in Miami and Philly. In December of 05 she was granted Otherwise Illegal Activity authorization (OIA), which gave her approval to participate in criminal activity. She claimed she had not engaged in any criminal activity prior to this, but then admitted she had sat down in the street at G8 at one point.
At the November meeting, Anna picked Weiner up at the airport, and Zach in Sacramento to drive them to Eric’s family’s house. There was no agreement at this time to use the ELF tag, according to Anna. There were no specific dates set, and no decisions about what to use. They did decided that they would reconvene in January, after the New Year. They were given specific “tasks” to work on at the meeting. Jensen was tasked with honing his “ninja warrior” skills. Weiner was tasked with procuring the book Poor Man’s James Bond, which contains various explosive recipes. Anna was tasked with finding them a place to live.
In January, Anna drove Weiner and Jensen across the country in her car to California. Mark asked her if she remembered a conversation between herself and Jensen in which Jensen said “D is not our leader.” she said yes. He then asked her if she remembered Jensen saying “you’re our leader.” She said she doesn’t recall. When Mark said “The FBI had asked you to come to California to get these guys going on something” she replied “correct.”
Mark then returned to the meeting on the balcony at Bio. She said that Eric had expressed romantic feelings for her at Bio. In a conversation between Anna and Weiner, Anna says “I kinda’ called him on how much he had changed. And he said, yeah well, I had a lot of big influences. I asked him “like what?” And he goes, “you for one” I about near fell over and died. ‘I knew you for a week!’ So…” at which point Weiner stated, “cause he loves you…”
Mark then asked Anna about the recipes she had provided the group in the so-called “Burn Book.” According to Anna, all the recipes were duds – created by explosives experts at the FBI. After reaffirming that everything she did was to prevent her being found out, she claimed that she wasn’t concerned that Eric would realize the recipes were duds.
When Mark asked Anna who paid for the group’s supplies – who physically reached in to their pockets and paid, she responded that she did. After an immediate objection from the AUSA, and a nervous glance in the AUSA’s direction, she changed her answer and responded that the money came from Eric and Weiner’s pockets. She claimed that the group had a jar for money and shared costs.
Anna claimed that her undercover operation was planned to last an entire month. Asked why it was ended so abruptly, she claimed “the group moved so fast we didn’t need a month.”
Mark then moved the conversation to an event that took place on January 10, when the group saw Eva Holland (one of the people involved in the arson with Ryan Lewis) at a cafe. Eric was visibly shaken by this event, and, as Mark said, it probably harkened him back to his original statements to Anna about not wanting to do anything too close to home. Anna admitted that Eric was concerned about this event and that her attempts to comfort him didn’t relax him.
When Anna reiterated that she was feeling “excluded” from the group, Mark asked her what might have happened if she left the group. He made the point that she was not about to be physically pushed out of the group. He talked about the groups inability to get something done, which Anna confirmed. He said it was “late in the game and you’re feeling uncomfortable,” to which she replied “true.” He said “you name it you’ve been able to fool them,” and she again responded “correct.” She said she just didn’t feel like she could handle the stress for the rest of the month. Anna claimed that she never felt like they were going to ask her to leave and keep the cabin for themselves. She kept referring to the arguments the group had as “growing pains.” She then claimed that when she left the cabin on the night of the 12th, after the big argument, that she found out the FBI was already planning on arresting them the next day.
Mark asked her if the group’s attitudes toward her had changed. She said yes. He asked her if there was something going on, if she was trying to get them to do something they didn’t want to do. This was in reference to the event on the 12th when the group allegedly attempted to prepare a mixture for an explosive. Anna insisted that Weiner and Jensen came out to the porch on their own to participate. Mark had Anna confirm that she was trying to get everyone to identify targets and work out a schedule – that they had schedules they weren’t following and that she asked them why. She affirmed that when she left the evening of the 12th to meet with the FBI that she was concerned they would find her out.
The AUSA asked Anna if the “plot” was falling apart. She said no. She said that after she left that evening, the group prepared a new schedule to structure their days and that they followed it the next morning. She said the group was irritated with the CHP stop the day before. The fact that the group would be arrested the following morning greatly reduced her stress. Then the AUSA asked Anna if anything else happened the night of the 12th to increase her stress again. Anna then claimed that she woke up in the middle of the night with Eric waving a knife over her head. She claims that Eric then said “I’m sorry” and left, and that she went right back to sleep.
AUSA then asked Anna about the encounter with Eva Holland. She said she was aware of certain elements of ELF that would commit violence against snitches, and claimed that Eric told her Eva was a snitch. She claimed that she never had any romantic relationship with Eric, and that she had discussed how to handle his advances towards her with the FBI. The FBI had her fill out a behavioral analysis of Eric and returned to her a series of responses she could give for his advances. She said that both Weiner and Jensen had indicated romantic interests in Eric. She referenced a conversation between Jensen and Eric in which Jensen said to Eric “when you get drunk, you get horny.” Eric replied “yes, but you like it.” She also said that Eric indicated a romantic relationship with another individual, and that she thought Eric, Jensen and this other individual were in a relationship together. She reiterated that Weiner and Eric slept in the master bedroom together, and that Jensen later moved into the bedroom with them, sharing the queen bed between the three of them. She then said that Eric had made advances towards her in November and that she had used the FBI’s talking points in that conversation.
AUSA then asked Anna about the instructions given to her by the FBI regarding her conduct as an undercover. She said that when she was asked questions by people in the group that she was allowed to respond. Since Eric had asked her directly for bomb recipes, she was allowed to get them. She was directly instructed by the FBI to bring the group out to California in November. The FBI had become concerned (with the addition of Jensen and Weiner to the group) about the growth of the group and wanted to see how serious they were. She admitted that she was a minor when she started her work, but that she got special approval to continue. She said that every communication she sent to the group was vetted by the FBI after she became a CW (cooperating witness). The reason she wasn’t wearing a body wire early on was because she didn’t change her status from CS to CW until November of 05, and a CS is not allowed to wear a wire. She said that she did do contemporaneous reports at that time, however. She purchased a plane ticket for Weiner with the understanding that Weiner would pay her back for it. Weiner indicated in her emails that she was saving money for their trip out west. Anna claimed that Weiner started the conversation about Eric being “selfish” for not wanting to take a day off from family time for the meeting, and that the “stressed vibes” she was getting from him stemmed from his “dealing with family issues.”
AUSA asked her about the online posting to militarywoman.org. She said that she did have an intention to join the military early in her life because she wanted to do “patriotic service” to her country. It was the same for her work with the FBI. She claimed again that she had no expectation of being paid for her work, and that there was no contract for payment. She simply did it because it was “the right thing to do.”
Mark’s Redirect of Anna
Anna admitted there were some transcripts she hadn’t reviewed. Mark asked her how many times the group used the word “plot” (the prosecution used this word continuously throughout their time with Anna), and she said that Eric did not use that word, but that they did use the word “cell” and “conspiracy.” He asked her why she would have reason to lie on the militarywoman.org website, and she said that she had none. She said when she wrote that she intended to join the military in a few weeks (she was 15 at the time and would not have been able to join), it was just a misunderstanding. She thought she was joining the JROTC. But she did not. He then asked her if she got the feeling that Eric was going to back out after seeing Holland at the cafe. She said no. She did say “I suppose it could have” when Mark asked her if that event might have made Eric feel like backing out. She said she got training on how to handle Eric’s advances in November of 05 – this was after Bloomington, after the event in Philly, and after Eric’s email to her in October. She said the email is what made her seek out advice. She said she was still working for the FBI when she lost the other two love letters. She affirmed that she did have to report anything significant from Eric to the FBI.
Mark then asked her if she went right back to sleep after Eric allegedly waved a knife over her head the night of the 12th. She said “Correct.” She said she had not seen any written reports of the event. Anna testified that she had no contract for payment and said again that she had no expectation of payment. For the end of her testimony the government played a tape of Eric and Anna in the car, which she characterized as a record of Eric coming on to her and her putting him off. The tape was a conversation with Eric asking about the mixed signals Anna was sending him and her continuing to lead him on. At one point she says:
A: I definitely, I don’t not like you. I don’t really like you- I definitely like being around you- our energies really mesh well together
A: what you said at bio I thought was nice, and appropriate
A: twim souls
A: we’re just. All of us are just friends and all of us aren’t together and all of us, I mean one of us doesn’t like the other person, we all just love each other
A: and I like that
A: and I’m not sure if I’m ready to add that kind of relationship, sexual dynamics that kinda’…..to screw it up
A: I’m not sure if I’m ready to do that yet
E:no I totally hear that
While the tape was playing Anna stared at Eric and grinned, almost to the point of laughing.She said “I was instructed to placate him the best I could without shooting him down.” Then Anna stepped down.
Government Examination of Matt St. Amant
The next witness was California Highway Patrol officer Matt St. Amant, who is part of the Joint Terrorism Task Force in Sacramento. He testified that when Eric was arrested he had a small knife with a carabineer on it on his belt. Mark asked him if that was catalogued in evidence and he said yes.
Government Examination of Ricardo Torres
FBI special agent Ricardo Raphael Torres was the next to testify. He was Anna’s handler at the Philadelphia FBI. He testified that he put out a call to the FBI for informants to use at the Biotech protest in Philly. He said that they did this because “people associated with anarchists, the ALF and the ELF engaged in violent actions” at the biotech protests in San Francisco, such as riding their bikes through traffic. The Miami FBI responded to his request with Anna. Torres said that she was “tasked to work within the anarchist elements of the protesters” and to “get out their and see who was going to do bad things to the city”. Torres said she was “extremely helpful”. His example was that there were allegedly protestors who had bottles of bleach that they were going to throw on cops. He said she alerted him and he alerted the police who sent in snatch squads to get the individuals. He also talked about the cop that died of a heart attack and said he died because he was “wrestling” with protesters. He said that some people felt sad about it and wanted to have a vigil and the people that were glad that the cop died went to the “Lost Film Festival” where they were showing films on how to make molotov cocktails. Mark objected to that comment and the judge ordered the jurors to strike it from their memory. Torres said that Anna’s two tasks were to report on people at the protest and stay as close to Eric as possible and report on his movements, plans and associates. Torres said that he did an FBI database search and found out that Eric was wanted for questioning in Sacramento. He testified that after Anna dropped Eric off in Chicago she called him and told him that Eric was planning a bomb campaign in winter of 2006 and that he had threatened to kill her if she was a cop. He said that she was not wearing a wire because she was still a (CI) confidential informant. Torres testified that they made her a (CW) cooperating witness when they found out that Zach and Lauren were involved and that she was then allowed to wear a wire. Anna testified that at this time she was living in Pennsylvania. Torres testified that at this point the FBI ordered her to get Eric, Lauren and Zach together to “set the stage for a meeting of the conspirators”. Torres testified that Eric wanted bomb recipes from Anna. Torres testified that he and Anna looked at “open source” information on explosives on the internet” and then met with Philly FBI bomb experts to create a recipe for something that was just an initiator, meaning that it will create a small flash that would only work if it were next to a large amount of explosives.
Torres said he was at the FBI command post the evening of the 12th, monitoring the activities inside the cabin in real time during the argument the group had. He said that Anna was extremely upset and crying when she arrived at the post. Torres told Anna they were going to arrest the three the following day. The AUSA then asked Torres if an incident happened later that night. Torres said that Eric was hovering over Anna, “twiddling” a knife. He claims that he then called her cell phone, which she kept on vibrate on her chest while sleeping, to wake her up. He said he was leaving the post for the cabin when she woke up, said something to Eric, and Eric left.
Torres said he had last had FBI training in 2003 at Quantico. The original training to become an agent took 4 months, but there is additional training required to become an undercover. He said there is a “cameo role” provision that allows someone to do a brief stint as an undercover without additional training. Mark, in reference to the training, said, “there is a reason for that, right?” to which Torres responded, “yes.” Anna did not go to training, but did have a “discussion” with an undercover agent about the job. Mark then asked about the Attorney General’s Guidelines on the Use of Undercovers, and stated that Torres would need to know them so he wouldn’t violate them, which Torres affirmed. Torres stated that he had not read all of the literature on informants, and that he was not aware of the Office of Inspector General’s (OIG) report from 2005 on FBI informants (a particularly damning report about the use of undercovers by the FBI). Mark asked Torres when was the last time he had read the Attorney General’s guidelines, to which Torres responded, “12:45 this afternoon.” He said that the Philadelphia office had faxed them over to the AUSA’s office and that he had reviewed them prior to his testimony. He said that he didn’t recall anything in the Atty. Gen. Guidelines about political protests, but that it might be in the FBI’s guidelines. He stated that they could send informants to political protests with cause, and that it only violates the guidelines if they record it. As her handler, Torres was responsible for Anna and for making sure she did not violate the guidelines. When asked if Anna was allowed to solicit people to come to political protests, Torres said he didn’t know. When asked if an informant can’t do anything that an agent can’t do, Torres again responded that he couldn’t recall. When asked if the rules allow a CI (confidential informant) to do things an FBI agent can or can’t do, Torres responded “I don’t know.”
Nasson Walker and Torres discussed general guidelines with Anna, but he couldn’t recall if there were any rules about entrapment. Neither Torres nor Anna took notes from that discussion, and they did not give her a copy of the guidelines. He claimed that Anna did not sign a contract with the FBI because the FBI doesn’t have informant contracts. Torres claimed she can’t sign an agreement because they need to protect her ID. He claimed that the document they went over with her was two pages long. Mark asked if they maintained a file on Anna, and Torres got visibly uncomfortable. He said that they do, that they gave the defense everything in discovery, and that the “official” copy is in Philadelphia.
After this exchange, the witness was excused and the jury left.
Other Matters Before the Court
At this time, the government stated that they might have to ask for jury instructions that nothing Anna did was illegal. The judge made it very clear that he would not issue jury instructions until the very end of arguments, when he had the whole picture of the case in front of him. He then went on to say that the entrapment defense requires a clear showing that the defendant was not “predisposed” to commit a crime, which he stated has nothing to do with the presence of government misconduct.
Day 2: Court update September 11
The entire day was taken up by US Attorney Steve Lapham’s direct examination of the government informant known as “Anna”. The prosecution asked for an order that she be referred to as “Anna” through the trial and that her real name never be used. The defense did not object and the order was granted. She was sworn in by her real name next to the judge so only he and the attorneys could hear her. After being sworn in and identifying Eric McDavid as “an anarchist I met while working undercover for the FBI”, she told her story of how she came to be an “employee” of the Bureau. She said she was a 17 year old sophomore at a junior college in Florida who wanted to impress her political science professor with an extra credit project. She heard in the news about the FTAA protests in Miami and decided to infiltrate it for her project. She says that the first day she when to the protests people were suspicious of her efforts because of her appearance. She then “went to the goodwill to find the rattiest clothes possible, something the protesters might like”. She said she was accepted once she began imitating the protesters aesthetic and was able to infiltrate some kind of group that was planning for the FTAA protest. She said that “the majority of activists are normal citizens engaging in legal protests” whereas there is an anarchist minority engaged in “property destruction, violence, vandalism and trampling people’s rights”. Anna stated that she presented the paper on her undercover operation to her political science class and they liked it. Apparently there was someone from the Florida investigators office enrolled in the class who was very taken by her work and approached her to ask if he could share it with his supervisor. Apparently his supervisor liked it and it went up the chain of command. At that point the Miami police department called to interview her along with the FBI. After the completion of that interview she was offered work with the FBI. At the request of the FBI, 17 year old Anna went to the G8 in Georgia, the Democratic National Convention in Boston and the Republican National Convention in New York City to surveil the protesters. She said that she was asked to give the FBI “real time” cell phone reports on illegal activities at the protests. Her examples were giving “breakaway march” locations or “if there was a rumor that there was a black bloc”. She said that at the G8 she was working undercover at the Independent Media Center. After the G8 she traveled to Boston before the DNC “to meet the organizers and listen to their plans”. She says that they had no plans for illegal actions. None the less, she came to Boston for the DNC and met with the organizers again. In Boston she says that the illegal activities that she advised the FBI on was a banner drop and a paper mache molotov cocktail. She claims that she met someone at DNC that invited her to the crimethinc convergence in Des Moines, which she described as a very exclusive event. She says that she met Eric at Crimethinc in Des Moines and “at the time I thought he was inconsequential”. When asked by the US Attorney (USA) if she reported on Eric she said “I mentioned he was there.” When asked by the USA if that was common she said “I reported on lots of people”. Anna stated that after crimethinc she received a reimbursement for her expenses and a lump sum payment which she claims was totally unexpected. She says that her deal with the FBI was only for reimbursements and that the payments (there was more than one) were always a surprise. After RNC Anna said “I felt that my obligation to them and my agreement was over”, meaning that after RNC felt she no longer worked for the FBI. She states that she was asked by the Miami FBI, at the suggestion of the secret service, to attend the protests against the inauguration in 2005. She states that she was asked to give reports on anyone dangerous there, but that “nothing happened”. She was then asked by the Philadelphia FBI to attend the biotech protests in 2005. She claims that she had not kept in touch with Eric after Crimethinc and heard from him sporadically. She wanted to meet up with him in Philly because as she said “I was going to use him to gain access to protesters there, enhance my credibility and gain access to the convergence center”. She met with Eric and Jenson in Philadelphia, where they all stayed at Lauren Weiner’s apartment (this was the first time Anna and Weiner had met). Anna claims that at this point Eric seemed “radicalized” since the time she had seen him in Des Moines. The USA brought up an incident in Philadelphia where a cop died of a heart attack during a protest, and Anna claims that Eric expressed wishes he could have participated in the cop’s death. There is no recording or other evidence of this statement, which the government refers to often in their case against Eric. Anna claims that at the Bio protests, Eric told her he had missed her and had things to tell her but that there were “too many ears around.” She reported this back to the Philadelphia FBI who then did a background check and Eric came up on a FBI “persons of interest list” from Sacramento. Apparently this was due to an investigation of a friend of Eric’s named Ryan Lewis who was accused of participating in property destruction in Auburn, CA. The FBI told Anna to pursue Eric at this point to try to find out about illegal activities in California. Anna next went to the Crimethinc convergence in Bloomington, IN, after picking Eric up in West Virginia. She reported that this convergence was much larger than the last, with a wider range of skill shares and workshops. Upon her arrival in Bloomington she found time to sneak away and meet with the FBI, who were particularly interested in her reporting to them on any possible illegal protests surrounding the construction of the I-69 highway. During this Crimethinc convergence, Anna claims that Eric took her to a prison support workshop, where he told her he had a buddy looking at 40 years (which she claims was a reference to Ryan Lewis). Anna claims that Zach Jenson and Eric attended an Urban Guerrilla Warfare workshop (she did not attend the workshop), where attacking federal buildings was discussed. Jenson allegedly said he thought it was a great idea, and Anna says Eric “nodded vigorously” in agreement. After the Crimethinc convergence, Anna drove Eric to Chicago. During this car ride, Anna claims that she asked Eric about what he had said in Philadelphia about “something big.” She also asked him about Lewis. Eric told her about Lewis, and said that Lewis had performed his actions too close to home. Anna asked Eric if he had been involved and he allegedly told her no, but that he had his own plans. Anna claims that he listed a number of targets. At this point Anna alleged that Eric threatened to kill her if she was a cop. This is another claim the government has made repeatedly about Eric, with absolutely no proof (other than Anna’s word). This conversation was not recorded. Anna alleges that at this point Eric asked her to join him in a bombing campaign in the winter, in her role as medic. Anna saw Eric again in August 2005, very briefly, outside of Weiner’s apartment. At this time Anna told Eric that she was interested in joining him, and he allegedly asked her to find him a chemical equivalency list. She agreed. Anna did not see Eric again until November of 05, and claims to have had sporadic email contact with him during this time period. The FBI wanted her to gather more information and find out where he was at the time. (Anna claims that during her time undercover, she had to find the “dirtiest clothes” she could produce, and that “I was quite disgusting.”) In November, the FBI became “concerned” that Eric hadn’t made contact, so they “formulated” a plan to get the group to the west coast where Eric was. Anna made contact with the members of the group and asked if they could meet and discuss their plans. At this point she began insisting on flying Weiner to California. Upon her arrival in California in November, Anna met with the Sacramento FBI, who told her to attend the meeting, listen to any mention of targets and tactics, and to keep her safety in mind. They also allegedly gave her further instructions as to what her role in the group should be – specifically that she should never suggest, don’t be a leader, and not to give info unless she was asked for it. Anna picked Weiner and Jenson up in Sacramento then drove them Eric’s family’s home, where the 4 were meeting. Eric allegedly gave the group copies of an interview with Derrick Jensen, which she claims was the basis for much of his thought. During the evening the group sat around a fire pit on the back porch, where they allegedly talked about their “plot,” recipes, targets, etc. Anna claims that at this time her body wire was not functioning because she had accidentally switched it off earlier in the evening. She claims that during this time Eric made a statement that even by having the conversation they were participating in a conspiracy and that it was bordering terrorism. Eric allegedly told the group that he had a recipe for C4 and that he wanted more recipes. The group also allegedly had discussion about how they would claim responsibility after their actions (whether or not to use an ELF tag). During the weekend, the group decided to meet after Christmas. Anna volunteered to procure a cabin for them (which she had been instructed to do by the FBI – allegedly for her safety). The government then spent a fair amount of time going over an email between Anna and Eric which had been coded – the email was from Anna to Eric and contained a recipe for explosives. Eric allegedly asked Anna for the recipe at the meeting in November. Anna claims that the recipe was a “safe bomb” recipe – that the FBI would never give them a real, working recipe. In January, Anna drove Jenson and Weiner from the east coast (DC) to the cabin in Dutch Flat, CA. At this point Anna introduced the “Burn Book” to the group, telling them that they should record any recipes, plans, shopping lists, etc. Much of the first part of the book is taken up with recipes that Anna wrote in. There are also lists of discussion topics (such as “Select targets” “Surveillance” and the accidental death of civilians). Anna claims that Eric brought up the “accidental death of civilians” topic and that he voiced his opinion that it was ok if civilians were killed because they were just “fence sitters.” The government played a surveillance recording to back up this claim. The group traveled to Nimbus and Folsom dams, then to the Institute of Forest Genetics. They were allegedly doing reconnaissance at these locations and assessing their value as possible targets. On the 11th of January, the group traveled to San Francisco to visit chemical supply stores, to do research, and to allow Jenson to sell some of his writings. None of the chemical supply stores were open to the public, so the group stopped at a Wal-Mart in Sacramento on their return to Dutch Flat, where they allegedly purchased materials to construct an explosive device. On January 12, Eric was playing with the stereo in Anna’s car and the recording device hidden there fell out into Eric’s hand. Anna was able to play it off as an old car falling apart, but claims that she was very shaken by the event. Later in the day, the group was pulled over by a CHP officer when Anna ran a stop sign. She claims the group was a little upset with her, and that they were all shaken up by it. After another shopping trip, the group returned to the cabin where Anna claims Eric began “tearing into” the salt substitute and “mixing in earnest.” She also claims that he began emptying the powder from shotgun shells and testing fuses. Anna claims that Weiner and Jenson were reluctant to participate at first, but then began to actively participate. This was after the government played a tape of Anna berating Lauren and Zach for not being involved After heating the mixture, the glass bowl they were using busted and their days work was lost. Anna claims that harsh words were exchanged the night of the 12th. They had an argument about people’s level of involvement, and Anna said the argument escalated until she no longer felt comfortable in the group. She said a great amount of evidence had been lost, her stress level was sky high, her role as an undercover had been compromised, and that she felt “excluded” from the group. She said she was confused about the conversation – that it had come out of left field and that the group seemed cohesive before that. She said everything was “coming apart at the seams” and that she felt like she was on the outside. She says she left the cabin to go for a walk and be alone. (At this point the government played a recording of the argument) During her walk to be alone, Anna met with the FBI agents and told them that she didn’t feel as if she could continue much longer. When she left the meeting with them, she knew that the other three would be arrested the next day. The USA asked Anna if the argument was an indication that the plot was coming apart. She said no. When she returned to the cabin, the group told her that they had put together a schedule of how each day should be structured (meeting times, use of space, etc), which they said was a “gift” to her. She said this was an indication of the group preparing for the plan to go forward. Eric, Weiner and Jenson were all arrested the next morning outside of a Kmart shopping center. The USA concluded his direct examination of Anna by going back over her compensation from the FBI. She said she received approximately $65,000 over two years. $35,000 was for reimbursable expenses (gas, food, hotel, flights) and that $31,000 (plus change) was given to her in lump sums, sporadically throughout her work.
After today, we will not be in court again until Monday, September 17 at 9am. Please come show your support for Eric! Make sure you come dressed appropriately for court. And keep in mind that in the interests of Eric’s case, it is best for no one to speak with the media except for Eric’s lawyer.
Yesterday (Monday) was was the first day of Eric’s trial. The morning was taken up by jury selection and then a break for lunch. After lunch we heard both sides’ opening statements and the first prosecution witness.
To select jurors the judge asked them a variety of questions about their background and whether or not they could be fair and impartial as jurors. The most notable question was when the judge asked the jurors if they were members of PETA, the ALF or the ELF, if they were supporters or if anyone they knew are members or supporters. After the judge finished questioning the jurors, the lawyers were allowed to do their peremptory challenges, the process that allows each side to dismiss a set amount of jurors without cause. Twelve jurors (7 men and 5 women) and two alternates (men) were instructed on their obligations as jurors and empaneled and then the court recessed for lunch.
Government’s Opening Statements
After lunch the US Attorney Steve Lapham began his opening arguments, which he describes as a preview of the government’s case. The US Attorney (USA) began his preview with the words “this case is about an ecoterror plot to use fire and explosives to attack targets in Northern California”. He said that Eric was the leader of this conspiracy and that he recruited the three, pumped them up and provide “philosophical indoctrination”. Not long after that he described the ELF, which he claims Eric is a part of, as a “leaderless resistance”. He then went on to describe “Anna” as “a person who managed to make friendships and acquaintances in the anarchist and radical ecoterror movement”. “Anna” apparently turned 21 last month. According to the government, Anna’s involvement with the FBI began in 2003 when Anna a was 17 year old sophomore at a community college in Florida. She decided to do an undercover project infiltrating a group of people preparing for the FTAA protest in Miami. Allegedly, an investigator who was enrolled in her class was impressed by her report which he showed his supervisor. His supervisor apparently offered her work for “over a year attending protests where illegal activities were expected to take place”. The US Attorney claims that she believed she was done after that, but then was called up by the FBI in Philadelphia and asked if she would work undercover at the biotech protest in Philadelphia in 2005. The US Attorney talked about her interactions with Eric at Biotech in Philly, Crimethinc in Bloomington and Pointless fest in Philly during the summer of 2005. The USA said that the conspiracy began over the course of these three events. The USA said that Eric, Zach, Lauren and Anna came out to California in November of 2005 to discuss their alleged bombing campaign. Anna bought Lauren a plane ticket to California. The USA says that to convict someone of a conspiracy they have to prove these three elements:
1)that there is an agreement between two or more people to do something that the law forbids
2)became a member of the conspiracy knowing its object and intending to accomplish them
3)that there was an overt act in furtherance of the conspiracy
The USA says Eric/Zach/Lauren/Anna talked about claiming their action for the ELF and going underground afterwards. The USA states that Anna furnished the three with recipes to make explosives, but that they were fake recipes and could never have made an explosives device “the FBI would never give them a real one”. USA said they planned go down to an “anarchist commune” in Fresno but that the FBI didn’t want to “lose control” of them, so she got them a cabin in Dutch Flat wired by the FBI with audio/video bugging devices. USA discussed how Anna introduced the “burn book” to the group. This was supposed to be a book where they could write down all their ideas, that would get burned at the end. USA says that Zach and Lauren downloaded google maps to look at satellite photos of possible targets and that this was one of the overt acts. USA says another overt act was boiling bleach in a pyrex container that eventually broke. This was allegedly to make explosives from Anna’s fake bomb recipe. USA says they targeted Nimbus Dam. He says they visited it to do reconnaissance but “I believe they looked at the Dam and decided they did not have the wherewithal to do it”. He also said they target unspecified cell phone towers and power stations and the Institute of Forestry Genetics (IFG). USA says they visited IFG and used fake names and a fake stories to get a tour and do reconnaissance. Then USA said it was “important to talk about why this case comes to a termination when it does”.
According to him this was a series of three “stressful” events. The first is that they got pulled over by the CHP and she was afraid her cover was going to be blown. The second is that Eric found a small recording device in her car attached to her tape player, though she was able to convince him it was just a component of her car. Apparently the final decisive incident was that Anna had an argument after a pyrex bowl in which the 4 boiled bleach broke. The stress of the day caused a huge argument with the other three because she felt they were not moving fast enough and did not have a plan. This led to her leaving the house for two hours and telling her FBI handlers that she was through. Apparently they convinced her to go back for one more night and agreed to end the operation and arrest Eric, Lauren and Zach.
Defense Opening Statements
“What is essential is often invisible to the eye”
Mark Reichel, attorney for Eric McDavid, began his brief opening statement with the above quote from the French children’s story “The Little Prince”. He went on to explain to the jury that they had been hearing the government’s version of the facts, but to grasp the true story they would have to look at these facts in context and approach this case from a different perspective. Nothing exists in a vacuum and we have to know what has gone on before. He compared Eric, Lauren and Zach to tumbleweeds, saying that there has to be a powerful, horrific force at work to keep them on the same path. He said that the true beginning of the story was in August 04, when Anna met Eric. The jury, Mark said, would have to focus on intent – where it came from and who’s it was. Where does everything originate?
First Government Witness
The government’s first witness was Bruce David Naliboff, a Lt. of criminal investigation with the Yolo County District Attorney’s office since 2002. He was a police officer for 20 years before that, with 16 years on the UC Davis police force. His testimony consisted primarily of information he had gleaned about the ALF, ELF and anarchism from surfing the internet and putting thing in binders since 1997. Mark moved to bar his testimony because it was prejudicial but was denied by the judge. Then Mark moved to bar his testimony because he his testimony was about what the “ultimate truth” of the case was about – which experts are not allowed to do because that is for the jury to decide. The judge denied Mark’s motion again, stating that Naliboff was not an expert. This, despite the fact that after much debate Judge England seemed to have decided at last Friday’s hearing that Naliboff was an expert (at the hearing he said, in reference to Naliboff being an expert “if it looks like a duck and quacks like a duck…”). When cross examined by Mark, Naliboff admitted that one did not have to be an anarchist to be vegan or be a criminal to be an anarchist. He also described discussing his testimony with the prosecutor and the FBI agent the day before and receiving instruction from them. He originally said that to law enforcement “direct action means illegal activity”. He later clarified that by saying “in my mind it is a misdemeanor crime to further your cause”. He was very reticent to define anarchism after Mark asked him about famous anarchists and veganism and finally described it as “a people’s philosophical way of life”.
Anna to testify
It was revealed in court yesterday that Anna was supposed to testify today. But then the government revealed that they had 13 pages of notes from Anna that they claim they have never heard about or seen. The USA said that Anna thought she had gotten rid of them, but then just found them on her computer. The notes cover some of the periods of time when Anna says Eric made incriminating statements that cannot be corroborated by any electronic surveillance. This delayed Anna’s testimony until Tuesday, September 11.
In Limine Hearing
Eric had his In Limine hearing this morning. Judge England denied Mark’s motions because they were filed after the deadline set by the court. Some of the issues raised in the motions can be addressed during trial. Then the discussion moved to the government’s motion to preclude the entrapment defense. At first, the judge seemed unmoved by Mark’s response, and made it very clear that he did not want trial to become an indictment of the FBI. But after much back and forth, the judge asked to see the case law that Mark was citing. We took a 20 minute recess so he could read the case. After the judge returned, things moved quickly. The case law is very clear – the defense only has to show “slight” evidence of entrapment to pursue it as a defense strategy. England could not deny that Eric has indeed met that requirement. He stressed over and over how “slight” he thought the evidence was, and reiterated again and again that he did NOT want the trial to become an indictment of the FBI, the Justice Department, or CS “Anna.” He said if the evidence does not support an entrapment defense, the jury will be so instructed.
Gov Motion in Limine to Preclude Legal Issues Previously Decided
Gov Motion in Limine to Preclude Entrapment Defense