2.Privacy and Prejudice Objections to Mariana's Key Logs Overruled
55 linesMS. PENZA: Your Honor, I think the next -- I think it may be a good time to break for lunch.
THE COURT: All right, it is about time for lunch, so we will take one hour for lunch.
All rise for the jury, please.
(Jury exits.)
(In open court - jury not present.)
THE COURT: The witness may stand down. Please do not discuss your testimony with anyone.
(Witness steps down.)
THE COURT: We will take an hour for lunch.
(In open court - jury not present.)
(The defendant exited the courtroom.)
(Judge NICHOLAS G. GARAUFIS exited the courtroom.)
(Luncheon recess now taken.)
A F T E R N O O N S E S S I O N
(Judge NICHOLAS G. GARAUFIS entered the courtroom.)
(In open court - jury not present.)
THE COURT: Let's bring in the witness, please.
MS. PENZA: Your Honor.
THE COURT: Before we bring in the witness?
MS. PENZA: Yes.
THE COURT: Let's wait for the defendant.
Please be seated in back.
(Defendant entered the courtroom.)
THE COURT: All right, yes.
MS. PENZA: Yes, Your Honor. I understand that defense counsel has an objection to two of the exhibits that were ones I plan on using, basically right now with the witness.
THE COURT: Well, maybe I should see them then. What are they?
MS. PENZA: They are two e-mails that copy log files, so the same type of file that Daniela testified to regarding James Loperfido. There were two additional log files sent later in 2008 that are the log files of the key strokes from her sister, Marianna, and that she was sending to the defendant. So, in the Government's view, this is the actus reis of the crime, this is the crime, and so it absolutely should come into evidence.
THE COURT: Yes.
MR. AGNIFILO: Our position, I don't -- the actus reis of the crime is that the crime occurred and that they got content. As she said, with the other witnesses, the -- putting the key strokes of this person into evidence is, A, it's -- it's -- it's elicit. I mean, they're basically putting in something that this person never intended the world to see, so I think that there could be privacy implications for this person. I don't know --
THE COURT: I'm sure there are privacy implications, yes.
MR. AGNIFILO: I'm not sure why they're picking this one person to put her key logs in, into evidence.
THE COURT: Okay. Good to know.
Yes?
MS. PENZA: Well, Your Honor, I think that obviously there is tons of privacy implications all over this case. This is no more -- this is certainly nowhere close to other things that are being entered in this case, and these are the actual log files. This is the exact product that the defendant asked her to get and that she is then sending to the defendant. This is the exact most -- this is the most perfect evidence of this crime being committed and the defendant's involvement in it.
THE COURT: Anything else?
MR. AGNIFILO: We are not saying that they didn't get content. We're conceding they got content. I don't think that they should be able to put the content in, it's -- it's hacked material, and I just don't think that there is any reason for it to come in. I think it's unduly prejudicial to put the content in. It's secret words of someone who has --
THE COURT: I understand.
MR. AGNIFILO: -- never wanted this to be public.
THE COURT: Well, all right, I am going to overrule the objection. You may place those.
What are the numbers of those?
MS. PENZA: This is Government Exhibits 1539 and 1540.
THE COURT: 15 --
MS. PENZA: 1544, excuse me, Your Honor.
THE COURT: 1539 and 1544 will be admitted -- oh, you can object at the time --
MR. AGNIFILO: That's fine.
THE COURT: -- in front of the jury, just the way that you now objected.
MR. AGNIFILO: Sure.
THE COURT: If that's what you wish to do.
MR. AGNIFILO: It doesn't matter. I mean, Your Honor knows I've objected, I preserved the issue. If you want me to object --
THE COURT: You've preserved. Of course, everything is preserved.
MR. AGNIFILO: That's fine. Thank you, Judge.
MS. PENZA: Thank you, Your Honor.
THE COURT: All right.
Please bring in the witness.
(Witness entered the courtroom resumed the stand.)
THE COURT: Please bring in the jury.
(Jury enters.)
THE COURT: Please be seated.
I remind the witness that she is still under oath.
You may continue your examination of your witness, Ms. Penza.
MS. PENZA: Thank you, Your Honor.
(Continued on the following page.)
DANIELA, called as a witness by the Government, having been previously duly sworn/affirmed was examined and testified further as follows: