2.Mark Vicente — Direct/Voir Dire (Part 3)
935 lines(In open court; Jury not present.)
(Whereupon, the witness resumes the stand.)
(Jury enters the courtroom.)
THE COURT: Please be seated.
Please continue with your examination of the witness, Mr. Lesko.
The witness is reminded that he's still under oath.
MARK VICENTE: Yes, sir.
DIRECT EXAMINATION (Continued) BY MR. LESKO:
MR. LESKO: Mr. Vincente, after moving to Clifton Park, did you rise up through the ESP rank?
MARK VICENTE: I did, yes.
MR. LESKO: Please describe your progression through the stripe path?
MARK VICENTE: When I attended my second 16-day intensive in 2006, I was awarded the coach stash.
A year later I became a proctor, which is the orange sash. So that would have been 2007.
And then somewhere in around 2009, I was awarded the senior proctor sash, which was a green. And I had that sash until I left in the 2017.
MR. LESKO: Did you perform other duties at NXIVM?
MARK VICENTE: A great many.
MR. LESKO: What were some of those duties?
MARK VICENTE: So I was a green, obviously, which meant I oversaw a lot of the proctors in general in the company. And I also oversaw the proctors in the centers I was involved in, which was Vancouver and Los Angeles.
I was the co-owner of the Los Angeles and Vancouver centers. I was field trainer as well. Executive board, as I mentioned before.
And also I oversaw -- there was a company called Moving Pixels which was, in essence, the video department. I oversaw that department as well. So I was training people in terms of shooting and editing, lighting, and sound and things like that.
And I was also a -- one of the founding members of the Society of Protectors as well as. And then I was working a number of film projects with Raniere. And also some of my own that I was trying to get to as much as I could.
MR. LESKO: And as you previously mentioned, did you run the communications division?
MARK VICENTE: Yes. I also ran the communications division, yes.
MR. LESKO: And you I believe testified you participated in enrolling others in ESP?
MARK VICENTE: I did, yes.
MR. LESKO: What types of people did you enroll in ESP?
MARK VICENTE: Generally speaking, people in the entertainment industry. I also went after people that were very influential.
One of the things that I did as much as I could was I tried to enroll, you know, people in power positions in the media as well.
I would try to get VIPs on board. At times we would run VIP intensives. Some of them I would run.
Just, you know, general every day people as well, but most of my network was, you know, the entertainment industry, so those were most of the people that I enrolled.
MR. LESKO: How many people did you specifically enroll, if you can estimate, in NXIVM?
MARK VICENTE: As I recall, somewhere around 50 or more personally.
And then because of -- you know, because not every person, but generally people that enrolled would enroll other people. So my entire organization was in excess of 2,000 when I left. But I think personally I enrolled 50 plus.
MR. LESKO: Have those people who were attributable to you in NXIVM, have they all remained involved in NXIVM?
MARK VICENTE: Many have left. I -- I think there might be some that still remained. I think many of them have left.
Many of the people that I -- that I enrolled in that organization of the 2,000 plus, many people just would come and take the training and then they would leave. And a small percentage would want to become coaches and join the stripe path, and get become more deeply involved.
No, I think there are a number of people that are still, I believe, enrolled.
MR. LESKO: When you recruited, how did you recruit? What sort of strategies did you use?
MARK VICENTE: Well, it depended on the person.
You know, in the case of very, you know, very wealthy or very powerful people, it's not like they wanted to have, you know, oh, more success because they already had so much. So what I tended to do with them was talk about those areas of their life that they were struggling. You know, perhaps it was relationships, or perhaps it was addiction, or perhaps it was, you know, that they had everything and they were still completely miserable.
MR. LESKO: Let me stop you there.
So are you talking about the sales pitch now?
MARK VICENTE: Yes.
MR. LESKO: Okay. Continue.
MARK VICENTE: And so I would always try to figure out what was the thing they were looking for, because I couldn't offer them the thing that they already had, but, in essence, what was the thing that was missing and try and find out what had they tried to do up to that point to have that thing.
And usually, you know, if I said: Well, how successful have you been? The answer was usually: Not very successful. And that was usually my in to try to explain what this particular methodology was and how it could perhaps help them with that particular thing that they struggled with.
MR. LESKO: So did you attempt to estimate the worth, the relative worth of these issues?
MARK VICENTE: Very much. This was -- this was an idea that Raniere taught myself and many --
MR. LESKO: I'm sorry, go ahead. Continue.
I want you -- why don't you sort of give a sales pitch.
MARK VICENTE: Oh.
Um, you know, in essence, if I was, you know, talking to somebody, I'd want to figure out what is the thing that the person wants.
And I think I mentioned before like, let's say the person wants love. And the thing they can't seem to get and figure out, what's the thing you keep doing that you lose love, or you run away from love.
And I try and establish, well, what's this true, wonderful, amazing love that you want to have. How do you get in your way. And then, you know, what's that like? What's it like for you not to have this dream that you ache for.
And usually what I was trying do is figure out what's the thing they really ache for. It could be love. It could be money. It could be more connection with this, that and the other. What's the thing they really ache for.
And then try to figure out, well, what's the cost in your life of not having that thing. You know, what's the cost in terms of hard ache and all the things you try to do to feel better instead. You know, all the vacations you take, and all the things you drink, and people you sleep with or whatever to try to feel better, what's the cost to your life in terms of pain. You know, it could be quantified, you know.
And it was playing with the idea of like what's this thing worth to you? What's this the eternal everlasting love worth? Like it is worth like ten bucks? Is it worth a thousand bucks? Like a million? Yeah. It is worth like 10 million? Oh, yes.
And then you kind of compare that, okay, this thing is worth $10 million to you so like, if you compare that to the, you know, $6,000 that you would spend taking the 16-day intensive, that really could help you overcome this block you have to having the thing you want, wouldn't that be worth it? And naturally they would say, "Yes".
Or if they were resistant, you know, you talk about the cost of, you know, this problem in your life. How much is it costing you?
And I would use an example, you know, like, for instance, I used to have a lot of anger, I used to blow meetings because I get upset with people and I told them once it cost my millions of dollars of lost deals because I get upset at somebody in the conference room. Do you have anything like that? People say: Yes, I have this and I've done that. We try to quantify what they've lost.
And I compare that very, very sizeable figure to this very small figure; you know, be it $6,000; be it $10,000, but that was much smaller and really cheaper than the thing that, you know -- the loss you've had.
MR. LESKO: This pitch, was it successful?
MARK VICENTE: Not always. There was a certain percentage of success.
Personally I found when I was working with people one-on-one I was better at it than doing the introductory-type evenings with people.
But I mean it was successful enough that, you know, I was growing my organization and many people that were using it were growing it as well.
MR. LESKO: Was this a pitch that was commonly used in NXIVM?
MARK VICENTE: There was a -- at some point it became more uniform.
When I first -- when I first came in, my field trainer, Barbara Bouchey, would teach me the pitch. That was the job of a field trainer.
And at a certain point, Raniere made the decision that he would try and formalize the pitch. And so what he did is he got a few field trainers together, and he did this training, which ended up being, you know, many, many weeks long where he explained the basic structure of, you know, what you were to do, and then explaining like different -- like he would do the different tricks to try to show the audience, you know, this is how you do it.
And he -- we'd talk about his sales experience, and we all felt he was clearly a pretty good salesperson, so we could learn from him and apply those things as well.
And the general thing was to try to figure out what's the thing the person wants and then try to really get down to like how are they not having it, or how they are sabotaging it, or what's the pain that they feel.
And then also showing them that because of the nature of the way that they're programmed, you know, we have these responses and reactions that we're not even aware of, that really you're never going to get it until we take care of that programming. So as much as you think about it or you want this thing, it's kind pointless. We're like these -- you know, we would talk about, you know, Pavlov's dogs and these response-type things and talk about how dogs are responding.
You know, there's an experiment that was done by Pavlov; you know, ring a bell, salivate; ring a bell, salivate. And we'd talk about, well, what's the difference between dogs and human beings? Well, it's the similarity.
Most people wouldn't know, and then we'd say: Well, the difference would be the human being and a dog is dog you have to repeat the thing again and again and again, if you train your dog. A human being is a one-time learner.
So very often, especially when they're young, the one time they experience something they learn, and that -- that gets trapped, in essence, in your body.
So as much as you want this perfect relationship, in essence, you keep on sabotaging yourself, you keep on screwing it up and like it's in your body in a fashion you can't get to. But our technology can get you there.
So it's sort of having them feel the pain of what they're losing, they thing they really want and how nothing else will work but this. That was the general -- the general pitch.
MR. LESKO: And the defendant taught that pitch?
MARK VICENTE: Yes, he did.
MR. LESKO: Is it fair to say that when recruiting individuals to participate in ESP, you were encounter concerns related to cult allegations, costs, and other allegations?
MARK VICENTE: Generally the objections --
MR. LESKO: Yes or no.
MARK VICENTE: Yes, yes, that's correct.
MR. LESKO: Did the defendant teach you how to deal with those concerns and allegations?
MARK VICENTE: He did.
MR. LESKO: What did he teach with regard to dealing with those allegations?
MARK VICENTE: Well, even before this formalized training, I would ask him questions. You know, one of the issues that I came up with at the very beginning is because of the bad press that already existed, people were afraid of the word "cult," and they were afraid of the allegations, you know, in the media.
And then he would teach me certain tricks. One of the early ones that I remember is he would say somebody approaches you and they're very afraid, you know, and they say there's been a lot of bad press. You could say to them: Well, that's good, a lot of bad press. Of course, the person would say: Why?
Well, because we want people that are critical thinkers. If somebody's going to get afraid because of some cult that they read in the newspaper, we probably don't want them because they can't think critically. We want people that can actually reason things through, not people that just reactive.
So in some ways that was the bind for the person, because given the setup you just gave them, they didn't way to say, oh, I'm a non-critical, fearful, hysterical person. No, no, of course, I'm a reasonable person. And so there were little tricks like that.
In terms of, you know, money objections. Similarly to what I said; you know, there's -- everything has a cost. There's a cost of buying the program, and there's a cost to not buying the program.
And generally speaking, the cost of not buying this program is so much greater to buying the program. And you've already told me -- I'm giving you the pitch again -- you already told me all these things you're struggling with and clearly that cost more than this. Life costs, depends on how successful you want to be.
And they were time objections. You know, I don't have time for this, I have to take care of my kids.
My response was saying, you know, what kind of parent do you want to be? Of course, the person says: I want to be an amazing parent. I want to be loving, there for them. And so, you know, you're not really there for them? Not in the way I want to be. I'm not as loving as I want to be.
Well, doesn't it make sense then for five, maybe even 16 days, to become that kind of parent so that when you go back to your children, you will be a better parent. You will give them more of what they want. Isn't it worth it to the make this small investment for a lifelong of joy. A life -- lifetime of joy, I should say.
So there were all these kinds of different sales tricks that we were taught to, in essence, almost bend the person towards why this would be better than all the other things that they were worried about. Like this will relieve all those things. Just give us 16 days of your life and, you know, $6,000, which is meaningless in the face of, you know, all these things you told me already that are so hard in your life. It's meaningless.
MR. LESKO: Were you taught by the defendant how to deal with the cult allegations specifically?
MARK VICENTE: I was. The fear thing I talked about is one.
He would -- in practice, he would practice examples with us to help teach us; you know, he would say things like, you know, if somebody came to you that was afraid of what they were reading, he'd say something like, you know, look, these things you're reading, do you know that they are actually coming from like really two sources in the world? You know, you may be reading 20, 30 articles, are you aware that there's two sources?
Are you aware that these journalists that write these things have been paid to do this? And don't you find it strange that you would, in essence, believe the word of somebody you've never met over me who you know.
Do I look like the kind of person that would get involved in something dangerous? In something nefarious? Doesn't it seem strange that you would believe a journalist you've never met who never even took the program. You have to understand, these people that are saying these things, they've never taken the program.
So those are the kinds of pitches that he would teach us to use.
MR. LESKO: Did you address the definition of the word "cult"?
MARK VICENTE: Not in those pitches. We tried to, you know, in terms of when you were talking to people, if somebody talked about the word cult, you would say to them, Well what is a cult?
MR. LESKO: So did participants ever raise cult concerns during the intensive?
MARK VICENTE: They did.
MR. LESKO: And were you taught how to deal with that?
MARK VICENTE: Well, some of it was actually built into the intensive. And, again, some of the ways -- the things I just discussed is the things that were talked about, if -- but on day five, and I believe it was called the mission module, the world cult was brought up.
And basically the mission module talked about how what we're trying to do is build a more ethical and noble civilization; you know, lots of beautiful quotes by beautiful people and then talking about how people that are going against this use the word cult to inspire fear. There's no clear definition to this word, they would say, and it's people being suppressive.
So there were things already baked into the intensive, but we would sometimes make light of it or, you know, not make a big deal of it. But if somebody in the intensive, again getting very, very upset, again using the cult word a lot, we might invite them to leave.
MR. LESKO: Did that happen?
MARK VICENTE: That did happen, yes.
MR. LESKO: How often?
MARK VICENTE: I would say there was at least one intensive -- one person every intensive that there was some kind of issue with.
It may have been cult thing, it may have been a press thing. It may have been something else, but in Los Angeles, I found it was usually one person per intensive that we would agree that they should maybe leave.
MR. LESKO: So getting back to Moving Pixels, that was a company?
MARK VICENTE: Moving Pixels was a company. I believe it was LLC.
MR. LESKO: And who was the owner of that company?
MARK VICENTE: The owner of that company was Nancy Salzman.
MR. LESKO: Where was Moving Pixels located?
MARK VICENTE: The -- on paper, it was located in Delaware. In actuality it was located at different residences. You know, one of mine, 13 Twilight Drive for a period of time, and 7 Generals Way. Then a building called the Rome Plaza, right next to Apropos. And then eventually it moved again to an address I've now forgotten.
MR. LESKO: Let me now you what's been admitted as Government Exhibit 120.
(Exhibit published.)
MR. LESKO: Do you recognize that photograph?
MARK VICENTE: That looks like 7 Generals Way.
MR. LESKO: And that is a location where for a period of you lived?
MARK VICENTE: Period of time, yes.
And I lived there, and also the basement of that house was basically our postproduction facilities for Moving Pixels.
MR. LESKO: Now, when you ran the video department at NXIVM, did you work alone or did you work with others?
MARK VICENTE: No, I worked with a number of other people.
MR. LESKO: Who did you work with?
MARK VICENTE: I worked with --
MR. LESKO: Let me ask you this:
Did you work with Chris Brooks? Chris?
MARK VICENTE: Yes.
MR. LESKO: Meghan Mumford?
MARK VICENTE: Yes.
MR. LESKO: Scott Mumford?
MARK VICENTE: Yes.
MR. LESKO: Adrian?
MARK VICENTE: Yes.
MR. LESKO: Josh Elliott?
MARK VICENTE: Justin.
MR. LESKO: Justin?
MARK VICENTE: Justin, yes.
MR. LESKO: Ken Kozak?
MARK VICENTE: Yes.
MR. LESKO: Juan Lopez Fonz?
MARK VICENTE: Correct, yes.
MR. LESKO: Olivia Canan?
MARK VICENTE: Olivia Cohn.
MR. LESKO: Cohn, sorry.
Mike Baker?
MARK VICENTE: Yes.
MR. LESKO: Souki?
MARK VICENTE: Yes.
MR. LESKO: Dan Bratman?
MARK VICENTE: Yes.
MR. LESKO: And what were your responsibilities as head of the video department?
MARK VICENTE: There were numerous. I mean basically I was, you know, determining -- like the executive producer, I would oversee everything.
I have the technical knowledge of, you know, what we needed to do. I would choose the team members to figure out, you know, who is going to be shooting, who is going to be editing. I would liaise with different people in the community that were requesting video materials to be shot. I was training, overseeing. I would be involved in budgeting things. And then I also be involved in directing or shooting things as well.
MR. LESKO: Did you shoot forums?
MARK VICENTE: Early on I shot them myself, and then I built a team that shot them. So I would just oversee the shooting of forums.
MR. LESKO: Did you shoot activities at V week?
MARK VICENTE: Yes, I oversaw -- I would shoot some of them myself, and I would oversee a fairly large team.
MR. LESKO: It is fair to say there was a quite bit of videotaping at NXIVM?
MARK VICENTE: A great deal. There was a lot of things we were capturing. We, as much as possible, would capture Raniere doing all the things he did.
V week, we would shoot pretty much everything. All the forums were shot.
And then intensives were generally always shot -- there was always a camera at the back of an intensive. There was always shooting what was going on. A lot was shot and lot of what recorded as well.
MR. LESKO: Was anything not videotaped?
MARK VICENTE: The only times things were not videotaped is if there was some kind of a sensitive discussion. You know, I might be asked not to role camera or not record for some sensitive of reason.
MR. LESKO: What were forums?
MARK VICENTE: Forums were an opportunity where the community and students got to come and listen to Raniere's speak.
And he would speak, you know, usually in some form of either Vanguard, or if we might appear at different intensives and speak.
I mean it was basically as many people as could come would, you know, be in the audience, and then he would come in, people, of course, very excited, and then once they sat down, he would open up with some kind of topic or philosophical ideas that he would talk about that were on his mind.
And then he would open the floor to questions. And those questions -- you know, it was said, you know, you can ask whatever questions you want. But they were carefully tailored. They would run them through some of the other ranks to make sure this was an appropriate question.
And these could go on for, you know, anywhere from an hour to five, five hours sometimes. And then we recorded this with multiple cameras.
MR. LESKO: Were forums memorialized in any other manner?
MARK VICENTE: So obviously video. There may have been audio. There was also a -- it was called a forum review team.
And this was a group of people that made very, very careful notes, and they were looking for -- to categorize everything he said; you know, quotes he said or, you know, things about certain topics.
There was a whole system of categorization being used. As I recall, they would have these fairly complex Excel documents, and they would sit there and make notes about every single thing he said.
And then when it was over, they would sit and meet and go through every single point of the things he said. It was a method of memorializing, you know, his -- his philosophical ideas.
MR. LESKO: Was it your understanding -- well, strike that.
What was your understanding regarding whether or not the defendant believed it was important that the forums be videotaped?
MARK VICENTE: He believed it was very important. He wanted a historical record of pretty much everything that was happening.
MR. LESKO: Do you recall an incident where you yourself stopped recording a forum?
MARK VICENTE: I do.
MR. LESKO: What happened?
MARK VICENTE: It was a forum, I think it was around 2014. It was a forum at Apropos, the building. And there were two to three cameras rolling, as there generally were, and I wanted to come in to shoot some material. In film terms we call it the "B-roll". It's sort of the little snippets of things.
You know, there's the main thing going on and little snippets of things you're catching. That's B-roll.
And so I was going in to shot on a higher-end camera some of those things, and I shot for maybe an hour. And then I decided to pull back and sat in the back for a while and then I moved to the next room.
And I got a call from him later that night asking me, you know, why I stopped shooting? And I said: Well, I got what I needed for this piece that I was making about you. So there was no need to keep shooting. He was very concerned that I stopped. And I said I'm not clear, I don't understand there were two to three other cameras that were rolling the entire time that captured everything that you said.
And he said something to the effect, I'm just very concerned you would do that because it sends a message. And I said: What kind of message? He said: The message what I'm saying is unimportant. And I said: Well, clearly it was important because the other cameras were rolling.
And he couldn't let it go. I apologized and I said: I'm sorry, but what would you prefer I do? He said: I would prefer if you're not going to shoot, just pretend you're shooting, just lock shoot, which I thought was silly.
But I -- you know, him being, in essence, my boss, I said: Okay, I'm sorry, I apologize. It won't happen again.
MR. LESKO: Was there an event at NXIVM called "coffee talk"?
MARK VICENTE: Coffee talk was, to some degree, similar. The difference was that Nancy Salzman, when she spoke to groups, that was termed a "coffee talk" to make a distinction between the forum and her speaking.
Coffee talks were generally similar. What she would generally do is in a coffee talk she would talk about who she was, her background. You know, how she wasn't getting anywhere with her particular methodology. How she finally got to meet Keith Raniere. And how, you know, if you're going to work with me, it's a lifelong commitment. And she made a joke about it.
She talked about how they began the company together, and what an incredible human being he was. And once she went through that whole story, it was pretty much the same every time.
She would open the floor to questions as well. And it was similar in some ways, except not as big a deal as a forum. Forums were very, very dig deals.
MR. LESKO: Were the coffee talks videotaped?
MARK VICENTE: They were videotaped, yes.
MR. LESKO: What was Vanguard week or V week?
MARK VICENTE: So it was a period of time to celebrate Raniere's birthday, which I believe was August -- is August 26th.
And my understanding is before my time it was like a day-long event, and then three days. By the time I arrived, it was seven days. And by the time I left, it was 11 days.
It was basically -- what would happen -- it was like a corporate retreat. Everybody would go up to the Silver Bay YMCA on Lake George in the Adirondacks, north of Albany, pretty much take over the whole YMCA and --
MR. LESKO: Let me stop you there.
Did the YMCA have places to sleep?
MARK VICENTE: Yes, it was like a resort, it was like a rustic resort, and there were -- it was like a hotel. So there were rooms all over the property.
MR. LESKO: And were those rooms in cabins?
MARK VICENTE: Some were cabins. Some were -- there was like a main lodge. And then there were houses in the different peninsulas close to the water. It was a bunch of different lodging situations.
MR. LESKO: Okay. Continue.
MARK VICENTE: And during this, you know, eventually 10, 11 days, there were all these activities that would happen. You know there was volleyball. There was -- you know, different companies would present what they were doing. There was things called objectives, you know, which was basically areas of interests.
There were like singing objectives, and dancing objectives, drumming objectives. And so you could basically -- sort of like summer camp for adults, where you could go and you had all these things you could choose from that you wanted to do. Drumming, dancing, singing. There was poetry. It was a great number of things.
And there were also performances that were being rehearsed throughout the week. And at the very end, these performances were put on. Sometimes it was a play. There was informal evenings, you know, formal evenings. There was a triathlon; in essence, summer camp.
And then the entire thing was in celebration of him and this civilization that he had built.
And he also would do forums. Anywhere from two to maybe five forums during that time. It was a large auditorium, and he would stand on the stage or sit on the stage and, you know, it was fairly packed. And similarly he would do a forum there.
MR. LESKO: Where did people come from to attend V week?
MARK VICENTE: Everywhere. I mean anywhere that there were people that had taken the education that felt close to the community that wanted to support the community. Or, you know, were higher ranking.
It was frowned upon if you were a member of a rank, a coach or above, not to go.
MR. LESKO: Were high-ranking members of NXIVM expected to attend?
MARK VICENTE: Yes.
And also, you know, if you were a high rank also to help run certain things. You know, the high ranks were seen as the people that are hosting this event.
So people from all over the world. I mean a lot of people would come from Mexico from Canada; of course, from the U.S., from Europe.
MR. LESKO: What was a coach's summit?
MARK VICENTE: Coach summit began I think around 2009.
In the executive board, we had a discussion that the coaches were not getting some of the skills that they needed to get. So we thought we should maybe hold some kind of a gathering for coaches, because they're coming into town, maybe for something else, so maybe we can create a three-day weekend that coincides with that.
And it was to help build their skills and help build the community. And that eventually turned into -- we did four of them per year. And the executive board would generally host these. And we would meet with the executive board. And sometimes the greens would meet with Raniere before everybody came into town to talk about the health of the company, what we would need and he would give us suggestions. Sometimes he might give us curriculum. And basically things to help the coaches, you know, understand their role and, of course, there was a huge focus on enrollment constantly.
It was team building, in essence, team building for the higher ranks.
MR. LESKO: Showing you what's been admitted as Government Exhibit --
MARK VICENTE: Actually, I can see the monitor there. I can see that.
MR. LESKO: Here we go. Showing you Government Exhibit 159 in evidence.
MR. LESKO: Do you have that?
(Exhibit published.)
MARK VICENTE: Yes, that's Apropos.
MR. LESKO: Do you recall something that happened when coaches missed a coach summit?
MARK VICENTE: Yeah. Yes.
There was one particular coach summit, I don't remember the year, when we were advised it might be a good idea to really have those people that didn't attend understand what it meant that they didn't attend.
So there was a letter writing campaign that was begun where people would craft these letters and send it to people that were not there, in essence, talking about, you know, how much they were missed. You know, what a huge hole it was that they weren't there. How much they cared about them.
And it -- it -- I think it backfired pretty badly. But it was a lot of pressure on the people that were not there.
MR. LESKO: Getting back briefly to V week.
What did the high-ranking people at NXIVM do at V week?
MARK VICENTE: They would run a lot of the objectives, the different objectives that I mentioned; you know, singing, dancing, that kind of thing.
They were also there to -- they -- we were told. You're also responsible for these people, so, you know, people having issues or having concerns or troubles, you know, it would be good if you could be there as elders, so to speak, to help people.
We were -- the idea was that we would run different things at V week.
MR. LESKO: Were those high-ranking people who ran things at V week paid?
MARK VICENTE: No, they weren't paid for that. Generally -- it was -- you paid to go to V week.
MR. LESKO: So the members, the high-ranking members themselves paid to go to V week?
MARK VICENTE: Yes, generally speaking, unless they were -- they were doing some activity for which they had arranged an exchange.
In other words, so, you know, like if the cost was, let's say, $2,000, they would work all of V week to, in essence, offset that.
MR. LESKO: Let me -- how much did it typically cost for a high-ranking member to attend V week?
MARK VICENTE: Depending on where you stayed, anywhere from -- it could be -- if you were in the really rustic accommodations, sharing, maybe it was like 14, 1500, up to 3,000-something for, you know, the nicer digs, so to speak.
MR. LESKO: Did everyone that attended V week pay for V week?
MARK VICENTE: Everybody paid, except those people that may have been working or had some kind of exchange.
MR. LESKO: So it was either you paid or -- or you incurred a debt of sorts?
MARK VICENTE: Which you paid off with your work, yes.
MR. LESKO: Sort of on the high end, how much did it cost to attend V week?
MARK VICENTE: If you were living in a nice house, maybe it was 3500 per person, I think.
MR. LESKO: So you paid to go work at V week?
MARK VICENTE: Yeah.
MR. LESKO: How often did you film the defendant?
MARK VICENTE: Hundreds and hundreds and hundreds of times. I mean in the 12 years that I was there, I don't have a number. It was, I mean, tens of thousands of hours of material.
MR. LESKO: Are you familiar with the community in Mexico named LeBaron?
MARK VICENTE: I am.
MR. LESKO: What is LeBaron?
MARK VICENTE: LeBaron --
MR. LESKO: LeBaron.
MARK VICENTE: -- is a small community in the north of Mexico in the state of Chihuahua. And I met them, I think it was maybe 2009, 2010 during the course of making a film about non-violence in Mexico. And I met them through one of my producers who found the story in the newspaper about this community.
MR. LESKO: What did you learn about LeBaron?
MARK VICENTE: So just in context of this film, when I was looking for heroic stories in Mexico, people that stood up against violence, and I learned about this community called LeBaron.
LeBaron's the name of a very, very large family there. It's a Mormon community. So there's many, many, many LeBarons, and there's also a place called LeBaron.
And I learnt that back in at least 2009, the -- there were kidnappers, I think as part of the cartel living in the mountains, had kidnapped this young boy. He was 16 years old. His name was Eric LeBaron.
And the spiritual leader of the community, his name was Benjamin LeBaron decided -- they all got together and they talked about, you know, we're -- they were farmers, we're going to raise money, we're going to find a million dollars to get Eric back.
And then he thought at a certain point, you know, the problem is if we give these kidnappers a million dollars, we just financed a bunch more kidnappings.
So what if we just, in essence, say screw you, you know. So the kidnappers called at the appointed time and they said: No deal, we're not paying. They said: We're going to kill him. And they said: Okay, go for it.
And what they did instead, they didn't just wait, they went to the Chihuahua city, to the government building and began protesting around the building.
And I think it was around about the eighth day of protesting, their theory was that the government -- that particular government and the kidnappers were the same people. They were all working together.
So they protested outside the building, and miraculously around day eight, somewhere in the mountains, Eric was released by the kidnappers.
And this is the story that I read. And I was very, very moved, so we sent a camera crew down there to interview Benjamin, interview Eric, and all these people in the community.
And, you know, I told Raniere about this thing that we were going to follow --
MR. LESKO: Let me ask you a couple more questions about the community.
You mentioned it was a Mormon community.
MARK VICENTE: Yes.
MR. LESKO: Do you recall where the members of that community originally came from?
MARK VICENTE: Originally they came from Utah. They were -- I don't know if this is the correct word -- they were excommunicated from a particular Mormon church or branch. And they -- I think they fled, actually, to Mexico, and they started a new community there and -- it has a very troubled past but...
MR. LESKO: Was it a monogamous community or a polygamist community?
MARK VICENTE: No, it was polygamist.
MR. LESKO: What does "polygamist" mean?
MARK VICENTE: In essence, the man had multiple wives. It was a sign of -- I'm not sure what the word is exactly -- something -- to have multiple wives, and many, many children.
MR. LESKO: Did NXIVM start a program for girls from the LeBaron community?
MARK VICENTE: Yes.
My understanding is that there was a girls program, and many of the young women from that community were in the program. I don't know the exact nature of the program. It was some kind of educational something.
I know that it was run by -- I'm sorry, checking -- by Rosa Laura Junco, in her house, as far as I recall.
MR. LESKO: Let me show you Government Exhibit 3 in evidence.
(Exhibit published.)
MR. LESKO: Do you recognize that?
MARK VICENTE: Yes. That's Rosa Laura Junco.
MR. LESKO: And Rosa Laura Junco ran this program for the girls in the LeBaron community?
MARK VICENTE: That's my understanding.
MR. LESKO: Was there a name of the program?
MARK VICENTE: I don't recall.
I just -- it was the term, I think the girls program or something like that.
MR. LESKO: Were the girls involved in, I think you had previously mentioned, Rainbow Cultural Gardens?
MARK VICENTE: Yes.
I think a number of them -- not I think, I mean, a number of them were also what are termed "MDSs". MDS is a fancy word for nanny. The idea -- I think they were called multi-disciplinary specialists. I think that's what MDS stands for.
The idea was -- that program was to have people of multiple nationalities that speak multiple languages spend time with the kids. So some of these were also associated with Rainbow Cultural Gardens as well.
MR. LESKO: And the educational program, did the girls who participated, or probably more specifically their parents or guardians, pay for them to participate in the program?
MARK VICENTE: I actually don't know.
MR. LESKO: I draw your attention to approximately 2007.
Did you work on a film concept with the defendant about supposed lies involving the defendant?
MARK VICENTE: Yes.
MR. LESKO: Now, before we get to the actual project, how would you work on film concepts with the defendant?
MARK VICENTE: The way -- the way it began is we would start discussing a concept of some kind. He would share a lot of information about the concept to try to make sure that I understood the philosophical points, and then we might start discussing a way to actually bring it to life.
You know, the very first thing I began working with him on was a project we -- which the name was "Finding the Carbon Crimes". It was a -- he felt very strongly that global warming was a complete myth and that, you know, Al Gore was not being honest. So he took me through the whole science of debunking global warming; how it was not true, it was a huge strategy just to make a lot of money.
And we discussed that for a long time, and then he began suggesting, you know, maybe there are certain characters that could be treated. So a lot of it was him talking. I may ask questions if I wasn't clear on something. I would record everything. I would then transcribe everything. I would then study the transcription, and I would then usually go back and have another meeting.
Most of our meetings were walking meetings. Where if I didn't understand or I wasn't clear, or if I had an idea of ways to expand it, I would talk about it and we would do that process again and again.
MR. LESKO: So this -- you would go back -- there was a back and forth?
MARK VICENTE: Yes.
MR. LESKO: And you would write down what was the concept?
MARK VICENTE: Yes.
MR. LESKO: As it was shared with you from the defendant?
MARK VICENTE: Correct.
MR. LESKO: And you would go back to him and go through versions?
MARK VICENTE: Exactly.
And then in that case, in the case of "Carbon Crimes", I began to turn it into a narrative story; you know were I presented treatments and then eventually write a script.
MR. LESKO: So this other project involving supposed lies, is it fair to say the lies were primarily in the press, according to the defendant?
MARK VICENTE: Some were in the press, some were just stories of enemies that had said certain things.
And the idea was to, in essence, debunk all these enemies and explain how what they were saying was not true, it was a lie.
So he would give me information about, you know, what was actually going on. You know, there was the recorded story, and then he would say, but this is what's actually going on.
And the idea was to then figure out how to dramatize it so in the end he could be revealed to be not the criminal that they were suggesting he was, but in actuality a very good man that's just misunderstood by society.
MR. LESKO: You used the term "enemies". Is that your term?
MARK VICENTE: No, that was a term that was used in the community.
MR. LESKO: Was it used by the defendant?
MARK VICENTE: I mean I can't think of a -- I can't recall a specific moment that's consistent with the kind of language we used.
MR. LESKO: So this project involving supposed lies, who initiated that?
MARK VICENTE: Let me think for a second.
I think Nancy Salzman initiated that. She would say to me -- she once said -- a few times she said, you know, I really would love it if Keith Raniere does not die a criminal in the eyes of the world. I think she was the first person, and then from there I spoke to him about these ideas and a number of others people.
MR. LESKO: And so did you participate in the writing of this film concept?
MARK VICENTE: Some of it, yes, I did.
MR. LESKO: Did one of the claims involve someone named Christian Snyder?
MARK VICENTE: Yes.
MR. LESKO: And what was the film concept relating to Christian Snyder?
MARK VICENTE: The idea was basically to tell the story of what happened to her that -- the -- his version of what actually happened.
This was somebody who took an intensive in Alaska, who was very upset, who was a survival -- a survivalist kind of person you know, very fit, took a canoe out into the bay and, you know, disappeared, supposedly drowned, and left a suicide note in her car. And there was a police report, et cetera, et cetera, about all this.
MR. LESKO: Those are all allegations, right?
MARK VICENTE: Yeah. I think there's a police report that's printed somewhere, I don't recall.
MR. LESKO: Okay.
MARK VICENTE: And then he said to me: Look, there's a couple of things that are wrong about the story. One is, this woman is a survival expert, and like she takes out -- she takes a canoe that's actually a planter box out there, doesn't that same strange to you? That seems strange.
Then he said: And also, the note that was left in the car that said NXIVM something, something, something. NXIVM didn't exist back then. Wow. Wow. That's amazing. That's clearly debunks that.
And then he said: And also, we've had private investigators try to find her, and we found her in a hotel with her lover. She's alive and well, and really the whole -- she made this whole thing up to try to get away from some kind drug thing that she was involved in.
And, you know, at that point I -- I really saw him as the source of everything coming out of his mouth was the truth. That's an amazing story, let's start writing this story to debunk what they are saying that Raniere is somehow responsible for this. There's so many holes in the story, let's rip it apart.
MR. LESKO: Did the defendant share an idea going into this film that involved the cult?
MARK VICENTE: Yes. There were a number of ideas that were floated over the years. One of the ideas -- we had discussions about, you know, cult busting, trying to bust that concept of cult.
And at one point he said to me: What would be very interesting is, you know, what if we found a family and we paid them a million dollars and basically we then figured out how to creatively, using the media, turn them into a cult, convince everybody that they were some kind of dangerous cult. That would be a very interesting fila. And at the very end, we would show the world that we've been shooting the making of this thing and that we fooled you all. That it wasn't a cult. That's how easy it is to fool people.
And I remember saying that that's interesting, but like that's really dangerous, because what if somebody kills someone or what if somebody hurts them? No, no, it's just an idea.
MR. LESKO: Did you end up making that film?
MARK VICENTE: No.
MR. LESKO: So during the initial part of your involvement with ESP, and let's start with the time period right when you moved to Albany. Did you actually interact personally with the defendant?
MARK VICENTE: I did.
Obviously, I told you the -- on the tenth day of my first intensive. And then the only way in the beginning that I could actually talk to him, because I became somewhat obsessed with talking to him about like, okay, this EM thing you're doing that's so extraordinary, I want to learn how to do that in film making.
Like, is there a way that I could have an audience come into a movie and like 90 minutes later change their mind completely about this thing that they believed. I thought this would be amazing.
And so I'd try and have conversations with him about this, and the only way I had access to him at first was volleyball games.
Volleyball games when I first went, were typically held three times a week. They would run from around midnight to 7 a.m. And the only opportunity I had at that point, and most people in the community had, was you had to go to volleyball to actually see him, you wait for a period of time, and maybe if you got lucky, you got to talk to him.
That's the access I had for quite a while.
MR. LESKO: And did -- let me stop you there. Where were these volleyball games held?
MARK VICENTE: When I first arrived, it was somewhere in Latham. I don't recall the exact gym.
Then it moved to Saratoga Springs that we held it in a -- it was a Catholic girls school gym that we used at night.
And then finally we moved to Hayner's, H-A-Y-N-E-R-S, Hayner's Sports Barn, in Halfmoon, New York, and it was held there for a number of years.
(Continued on next page.)
DIRECT EXAMINATION BY MR. LESKO: (Continued.)
MR. LESKO: Showing you what's been marked as Government's Exhibit 172, do you recognize that photograph?
MARK VICENTE: Yes. That's Hayners Sports Bar.
MR. LESKO: Is that the front of the building?
MARK VICENTE: That's the front of the building, yes, taken from the road.
MR. LESKO: Showing you Government's 173 in evidence, do you recognize that photograph?
MARK VICENTE: Yes, that's the same building, a wider shot.
MR. LESKO: And that's -- that building contained a volleyball court?
MARK VICENTE: It contained -- yes, two volleyball courts and batting cages and a number of other things.
MR. LESKO: And who else played in these volleyball games?
MARK VICENTE: There were -- the athletic members of the community: There was an A team and a B team. The A team was people like Jim Del Negro, Ben Myers, Mike Baker -- stand by -- Adrian. There were people that played with him a lot, and then there was a B team that were learning, and then the rest of the community would -- would sit on the benches and watch.
MR. LESKO: And how big was the crowd generally?
MARK VICENTE: You know, on a busy intensive night, it could be 30, maybe even 40. Generally speaking, though, it was probably around ten to fifteen, maybe.
MR. LESKO: And did you occasionally talk with the defendant at volleyball?
MARK VICENTE: In the first few years, that was -- yes, that's where I spoke to him.
MR. LESKO: Did there come a time when you asked to meet with the defendant?
MARK VICENTE: I did. Once I moved there, you know, I was trying to see if I could get a meeting with him and I was going through Nancy Salzman to get a meeting with him and it took quite a while and I wanted to have a meeting with him away from the gym, you know, and eventually -- I wasn't getting anywhere, so, you know, I was receiving EMs on my overeagerness; my insistence that I should meet him; you know, my attachment to my career; you know, a whole bunch of things, and then finally I said to Nancy Salzman one day, you know, I think I've -- I think I'm now a little less attached to having a conversation with him. And then a few days later on June the 22nd, my birthday, it was around 7:00 a.m. or maybe earlier, he called me and he said, Would you like to take a walk, and of course I was over the moon because this is what I've been waiting for and, yes, I -- yes, I want to talk, and so we took our first walk together, and --
MR. LESKO: Was walking with the defendant significant in NXIVM?
MARK VICENTE: It was. It was seen as -- it was seen as a big deal that you got to have time with him. I mean, you have to understand, at this point, you know, he had been built up in my mind and everyone else's mind as this, you know, genius beyond geniuses, and an opportunity to walk with him was, you know, walking with, you know, one of the top three problem solvers in the world.
MR. LESKO: Did you, in fact, walk with the defendant?
MARK VICENTE: Yes.
MR. LESKO: Did anyone comment on the fact that you had walked with the defendant?
MARK VICENTE: At that time, Pam Cafritz had commented, she said, you know, That's really a big deal. She had also said to me, you know, He doesn't have very many male friends, maybe you could with that person. She pumped my tires about it.
MR. LESKO: Did anyone suggest that the defendant would take you under his wing?
MARK VICENTE: Nancy Salzman had suggested that. She said, you know, Based on how things go, you know, if you're very fortunate, he may actually decide to mentor you personally, and that would be extraordinary, and I -- at the time, I believe I said something like, That's -- I really would love that, that would be very important to me.
MR. LESKO: So after that initial walk with the defendant, did you continue to walk with him?
MARK VICENTE: I did. We began a -- I would say it was more of a working relationship working a number of projects. I would initially call him via somebody else's phone and then eventually I had his phone number, and, you know, I would call him or he would call me and we would walk usually very, very late at night, some odd hour.
MR. LESKO: And you would talk during the walks.
MARK VICENTE: Yes, we would.
MR. LESKO: So how often a week would you have these walk-and-talks with the defendant?
MARK VICENTE: I think in the first few years, I mean, it could be as little as one maybe up to three.
MR. LESKO: And in 2009, did your contact with the defendant change?
MARK VICENTE: I -- yes, I think in -- 2009 was sort of a turning point in the company. There were a number of people that decided to leave and --
MR. LESKO: We will get into that a little bit later. I'm just asking about the volume and type of contact.
MARK VICENTE: Oh, yeah, it was a great deal more.
MR. LESKO: And how would you talk? Would you still do the walk-and-talks, or was there another way you would talk with the defendant?
MARK VICENTE: We would do walk-and-talks or we would do -- we would do phone calls, a lot of phone calls.
MR. LESKO: Did there come a time when you started contacting -- or you had contact with the defendant every day?
MARK VICENTE: Yes. It was after one particular intensive -- I believe it was human pain where -- I had discussed with Nancy Salzman at one point, you know, because she was having me look at what's one of the hardest things for me, and I said, Well, actually, one of the hardest things for me is to talk to him. I always find myself very nervous, and, you know, it was very difficult and I felt like he could see right through me and it was a terribly vulnerable experience. And she said to me, you know, You might want to figure out how to make that part of something that you do.
And so when it came to human pain and we were looking at, you know, what's the hardest thing in your life that at this point that you would like to do, I made the decision, all right, I'm going to call him every single day: It could either be a call; if I can't reach him, then I'll text him; if that doesn't work, I'll e-mail him, and I'll do this every single day, and I pretty much kept that up until towards the beginning of 2017, many, many years.
MR. LESKO: Did your standing or your status within NXIVM within the community at NXIVM increase or decrease after you began to have daily contact with the defendant?
MARK VICENTE: It increased.
MR. LESKO: Why?
MARK VICENTE: My sense is that people thought, okay, well if, you know, he's having this much time with Raniere, that they're friends, he's-a-big-deal-too kind of thing, so the best way I can explain it, it's a bit like you're spending a lot of time with a king and everyone else is going, ah, he's with the king, so he must be all right, he must be important. It was a bit like that.
MR. LESKO: Did the defendant share confidences with you during this time period where you had daily contact with him?
MARK VICENTE: Some confidences. You know, some over the years he would share, yes, certain personal information with me.
MR. LESKO: Now, I apologize if you may have discussed this previously, but let's talk for just a moment about tribute.
MARK VICENTE: Yeah.
MR. LESKO: Did members of the NXIVM community pay tribute to the defendant?
MARK VICENTE: Yes. A lot. A great deal.
MR. LESKO: Was that taught in ESP?
MARK VICENTE: Yes, it was. It was -- it was part of the, you know, when you -- when you ended a module or you ended an intensive day, you were -- you did a clap, you said, you know, Thank you Vanguard, thank you Prefect, so there was a lot of thanks going on.
And tribute -- because he was seen as somebody who produced more value than anybody else, it was suggested he should get, you know, more tributes. Nancy Salzman would say to me things like, you know, Do you understand what it means to spend an hour with him? Do you understand that that -- you know, his time is worth $100,000 per hour and that when you are spending time with him the way you are, you are getting millions of dollars, so there was this constant focus on, like, what an extraordinary rare experience it was to be with a mind like that.
MR. LESKO: Did anyone ever question the defendant in NXIVM?
MARK VICENTE: Nobody in the system. I mean, I once saw somebody that wasn't a student. I never saw anybody else really question him.
MR. LESKO: Did you ever criticize him in front of others?
MARK VICENTE: There was only one time that I can remember really challenging him in front of others. It was, I think, the end of 2016 maybe, I challenged him quite strongly in front of other people.
MR. LESKO: Who were you with when you challenged him?
MARK VICENTE: I was with Jim Del Negro and Anthony Ames.
MR. LESKO: And after you challenged the defendant in front of Anthony Ames and Jim Del Negro, what was their reaction, if any?
MARK VICENTE: They were shocked. Jim Del Negro sort of laughed uncomfortably and said, Oh, looks like you got a little riled up there; and Anthony Ames was, like, I actually didn't know that you could do that. And I said, Well, I just did.
MR. LESKO: Did Nancy Salzman ever discuss the defendant's power to heal?
MARK VICENTE: She did. You know, generally speaking, and it wasn't said publicly, but there were rumblings about, you know, these abilities he had. You know, people would talk about how he could affect weather, how he would affect technology --
MR. LESKO: Did you say "affect weather"?
MARK VICENTE: I did say "affect weather."
MR. LESKO: How would he affect weather?
MARK VICENTE: I don't know what the mechanism was, but, you know, Barbara Jeske would tell me about, you know, how he would affect weather. Other people would talk to me about how he would affect technology. He, himself, would tell me that there was something about his energy field that seemed to create problems with computers; that he went through many, many computers because of his -- something about his energy.
So there was this kind of mystique that was floating around, not so much with the general student populous, but more, you know, in sort of more of the inner circle, you know, talking in some hush tones about these things that he could do.
And at one point -- I don't remember the exact year -- Nancy Salzman said something to me about, you know, there's a path to enlightenment through sexuality and that, you know, Raniere understands this path; and I thought that was really odd, but I, you know, kind of filed it away in -- there's a box in my mind I think I use, which is -- I don't know, maybe it's above my pay grade or it's just too weird, so I just file it away.
MR. LESKO: Did ESP students at some point in time during their involvement physically meet the defendant?
MARK VICENTE: They did, but it was under certain set of circumstances. In other words, if you were a brand new person coming through, chance of you meeting him after five-day were very, very slim. You had to be deep into your 16-day generally, and usually it was at the end of your 16-day when you would get a field trip, you know, and the field trip was, you know, We're going to volleyball tonight. It wasn't always at the very end, but towards the end, and this was your opportunity to see the man that created this incredible experience that you have been having and all these wonderful tears you have shed and all this likeness you are feeling and these issues that you now feel resolved about, you know, let's go meet the man who actually created all this. But there was a certain amount of preparation for new people. They couldn't just meet him.
MR. LESKO: How did they generally act when they first met the defendant?
MARK VICENTE: My general impression was awe. I mean, certainly that's kind of how I felt; I was kind of awestruck, and I was -- I was awestruck by the -- kind of the -- what I saw as this intellectual model. I, you know -- it was -- some of it was fairly new to me, but they were very deferential, very awkward is the way people were. There was a -- the respect and the tribute for him was so built into the intensive that by the time you saw him, it was a little bit like you were seeing, you know, some kind of god, you know.
MR. LESKO: I would like to now draw your attention to June of 2008 when you were in charge of the video department. Did the defendant ask you to do anything at around that time?
MARK VICENTE: He did. He -- I don't remember if it was a phone call or in person, but he said to me, you know -- he asked me, Is there a way to remove stuff from a videotape in such a way that it doesn't look like it's removed? And I wasn't clear at first. He's like, Is there a way to, like, do it where you can almost -- it looks like a glitch or it looks like some kind of a natural process to remove something? And I thought about it, and I said, Actually, there is. You know, you can move to the analog world, you can do a bunch of things there, yeah, it can probably be done. And he says, Oh, that's good. There's some things we need removed. The legal department has some things that need to be removed from some tapes and it has to do with a case where our methodology is being evaluated and our patent is being looked at. And my understanding from him and then from some other people that were part of this project is, you know, the patent was at risk if these things were in that tape that were going to be handed over.
So I said, Okay, well, you know, I think I -- I think I know how to do it and I have to think about it a bit more.
And then my -- you know, myself and my department began liaising with the legal department to figure out what needed to be removed and what was the way that we would do it.
MR. LESKO: During that conversation with the defendant, did you, as a preliminary matter, indicate how you could create the glitches in the videotapes?
MARK VICENTE: I do recall saying something like, you know, If we move to the analog world, there's all kinds of glitches that occur with analog tape versus digital, especially with, like, VHS tapes. There are ways to create glitches that -- you know, once you start a glitch, it takes a certain amount of time, a few seconds, for the image to finally stabilize and that's -- that's a way to do it. You know, where something's removed, you can, in some ways, hide the removal with certain kinds of glitches.
MR. LESKO: And glitches are alterations to the tape, to the actual --
MARK VICENTE: Yes. They are alterations. They are creating a kind of -- there's different ways, but creating a kind of interference in the tape signal so that it looks like, you know, maybe the thing was lying around too long or there was some kind of damage to it or some high voltage thing happened.
MR. LESKO: And so digital is -- is it fair to say digital format is sort of what we're all used to now; is that right?
MARK VICENTE: Now it's all digital, yeah.
MR. LESKO: So that's DVDs and alike?
MARK VICENTE: Yeah, Blu-ray, et cetera, et cetera.
MR. LESKO: When you use the term "analog," what are you referring to?
MARK VICENTE: In this case, I'm referring to VHS. You know, digital now is all ones and zeros, VHS was magnetic. It's not the same kind of format, so there were -- there were a series of issues that happened with analog VHS that don't happen now. It's much more stable now.
MR. LESKO: For those of us who don't remember VHS, VHS is like a big casette tape.
MARK VICENTE: It's like a casette like that size (indicating), magnetic.
MR. LESKO: And the video is actually on a tape; is that right?
MARK VICENTE: Yes. Two spindles. It runs through -- against a head that reads it. It's more complex; it's a spinning drum that the tape wraps itself around, and the drum is spinning very, very fast and reading the information on the tape.
MR. LESKO: And this process that you discussed with the defendant, did you describe it at all? Did you mention that it had involved steps or stages or anything like that?
MARK VICENTE: I don't know that I mentioned specific stages and steps because there was -- there was still some discovery that had -- there was experimentation that had to happen, but I did talk about that VHS was glitchy, which was an advantage that also -- the advantage of VHS was that on -- in digital, you can actually embed time code into digital formats, there's time code information.
When you're in VHS, it isn't the same; you don't have time code information in the same way. So moving from digital into analog, in some ways you can say it's almost like you erase the digital information, and the reason -- the reason that's important is because, you know, if you have -- time code is generally eight numbers, you know, and if you have, you know, zero, zero, ten, ten, thirteen and, like, you know, if you have that, you will see the seconds in the frames or the minutes that are missing. It will be very clear that it's missing.
If you move into the VHS analog world, there's no numbers in the same way, so you can't tell if anything's missing.
MR. LESKO: So just to be clear, the defendant asked you to alter these videotapes?
MARK VICENTE: Correct.
MR. LESKO: By removing segments of them?
MARK VICENTE: Correct.
MR. LESKO: And he indicated that this was because they would be produced in a case --
MARK VICENTE: It was some case and that the -- there was some case and that the patent would be at risk because of what was in the tapes.
MR. LESKO: Do you know specifically what was supposed to be removed from the videotapes?
MARK VICENTE: My best recollection now is that it had to do with the -- the -- you couldn't make health claims with this kind of education. You know, if you made health claims, that would be a huge problem with somebody -- some department of the government, I'm not sure which. So the idea was to take out anything that -- where a trainer -- and it was mostly Nancy Salzman -- had said something that led people to believe, oh, so she's saying that rational inquiry actually can heal you or it can create some physiological change in your body, you know, it can get rid of a disease or something like that. The idea was to remove that because in -- in this -- in this being produced in this case, if that was seen, it would be clear that, oh, well, these people are saying things that they shouldn't be saying.
MR. LESKO: Was there an understanding at NXIVM about claiming that programs offered by NXIVM could result in health benefits?
MARK VICENTE: Well, it was talked about -- it was generally accepted that yes, that is what it did, but we were told, you know, don't make those claims, be very, very careful that you don't suggest that this thing will do that even though, you know, the experience we had was that there was clear evidence that, yes, it actually did do that, you know, yes, it removed headaches, and it could change panic attacks and it could do all kinds of things that actually did have a physical benefit, but we were instructed to not make that claim.
MR. LESKO: Did that type of claim -- was it your understanding that that type of claim could lead to enforcement of regulatory oversight by state authorities?
MARK VICENTE: I think the way I saw it is that maybe this could be shut down because I think -- I think I'm saying something similar to you, I think.
MR. LESKO: Was it your understanding that Nancy Salzman had made a mistake by attributing health benefits to the NXIVM curriculum?
MARK VICENTE: That was my --
MR. AGNIFILO: Objection.
THE COURT: Sustained.
BY MR. LESKO:
MR. LESKO: Did you have an understanding regarding what Nancy Salzman had done when she made these health claims?
MARK VICENTE: My understanding was that she said some things that she wasn't supposed to say. The -- it was generally known that -- that Nancy Salzman would get very excited and say a lot of things and things that, in this case, were problematic.
MR. LESKO: Did Nancy Salzman know about the editing of the videotapes?
MARK VICENTE: She was aware, yes.
MR. LESKO: Was she punished for this?
MARK VICENTE: I think so. She was -- people spoke about her negatively, and I think they admonished her for doing this, and, you know -- the sense I got was that she was --
MR. AGNIFILO: I'm sorry, I'm going to object. If the witness --
THE COURT: It's a speaking objection.
MR. AGNIFILO: I apologize.
THE COURT: Sustained.
MR. AGNIFILO: And I move to strike the answer.
THE COURT: Yes, the jury will disregard the answer.
Go ahead.
BY MR. LESKO:
MR. LESKO: Did you ever discuss with others at NXIVM consequences that Nancy Salzman experienced as a result of making these claims on the videotapes?
MARK VICENTE: I don't recall specifics.
MR. LESKO: Do you recall when the video tapes were originally recorded?
MARK VICENTE: The best of my knowledge, it was prior to when I arrived in 2005, but I don't have the exact dates.
MR. LESKO: So when the defendant asked you to alter the videotapes removing portions of them so that they could be produced in connection with a case, did you agree to do this?
MARK VICENTE: I did.
MR. LESKO: And when you said the word "case," was it your understanding that that involved a lawsuit or a legal action?
MARK VICENTE: I understood it was some kind of legal action; I wasn't clear what it was. It was spoken about in terms of, you know, that we need to defend the tech. I don't know what -- at that time, I didn't know what the case was.
MR. LESKO: Did you understand that the requested production of the altered videotapes, you know, in a lawsuit or a case would be illegal?
MARK VICENTE: The answer is yes and no.
MR. LESKO: Well, what's the "yes" answer?
MARK VICENTE: The "yes" answer is yes. By the -- by the laws of the land, yes.
At the time -- I, myself, and I think other people, had the impression that this methodology and Raniere's way of thinking, you know, was superior to the ethics of the governments and the ethics of courts and the ethics of pretty much everybody, that this was the most advanced ethics, and that he really had an understanding of what was truly ethical moral.
So in this kind of environment, I believe I was -- this must be for a higher good. Okay, so yes, it's this, but it's for a higher good that in the end is better. That's why I say "yes" and "no."
MR. LESKO: Your Honor, this may be a good time to take a break. I can continue, but --
THE COURT: Yes.
Let me just ask you, at any time in your discussions about altering the tapes, did you ask whether a legal opinion had been obtained about the lawfulness of this particular activity in connection with a patent application or a litigation?
MARK VICENTE: I did not. I was --
THE COURT: "No" is the answer?
MARK VICENTE: No.
THE COURT: Did you deal with lawyers at all when you were engaged with your activities at --
MARK VICENTE: I did not.
THE COURT: -- NXIVM.
MARK VICENTE: No.
THE COURT: All right, let's take a ten-minute break.
All rise for the jury.
(Jury exits.)
THE COURT: All right. The witness may stand down. Do not discuss your testimony with anyone. We'll take a ten-minute break.
(Witness excused.)
(Defendant exits courtroom at 3:29 p.m.)
(A recess in the proceedings was taken.)
(Defendant enters courtroom at 3:40 p.m.)
THE COURT: Let's bring in the witness, please.
(Witness resumes the stand.)
THE COURT: Yes, did you want to say something?
MR. LESKO: Yes, Your Honor -- you go first.
MS. PENZA: I did not want to say something.
THE COURT: Oh, you didn't?
MS. PENZA: Sorry, I was just looking at you.
MR. LESKO: If I can raise an issue --
MR. AGNIFILO: Do you want to go to the side?
MR. LESKO: Yes, sidebar, please.
THE COURT: Please be seated, everyone.
(Sidebar.)
(Continued on next page.)
(Sidebar conference held on the record out of the hearing of the jury.)
THE COURT: Yes, please.
MR. LESKO: Thank you, Your Honor. I expect that we're going to get to four exhibits, and they're videotape exhibits, by the end of the day, and the four exhibits are examples of the videotapes that were produced in the lawsuit and Mr. Vicente will review very short portions of them and they are examples of the types of editing that he oversaw. These videotapes ultimately will have to be introduced through some sort of record custodian or representative of the law firm that was involved in the lawsuit, so what I'm proposing is that we just see -- I seek to admit the videotapes subject to later connection and I'm asking -- and I believe the defense agrees to that --
MR. AGNIFILO: I have no problem with the subject to connection.
I do have one question: Can he say these are the videotapes?
MR. LESKO: No, he cannot. He did not watch the videotapes at the time, so he can't say they are the exact videotapes. He'll say that the edits are the types of edits that were done to the videotapes.
MR. AGNIFILO: Okay. Okay. So he's going to say the editing that -- the hands-on editing that he did is consistent with the editing that I'm seeing in this video.
MR. LESKO: To be precise, the editing that he directed others to do.
MR. AGNIFILO: Okay. And that's why he doesn't know because he didn't actually see the finished product.
MR. LESKO: Correct.
MR. AGNIFILO: Okay. All right. I would imagine that this issue is -- it's admissible and it goes to weight and I'm going to get to cross-examine on it, obviously. Okay, that's fine.
MR. LESKO: Your Honor, if I could ask, would there be any instruction that the Court would be inclined to give in terms of the subject of connection that may be confusing to the jury, or should we just leave it there?
THE COURT: I'll say something.
MR. LESKO: Thank you.
THE COURT: You'll make the offer and I will grant your application and indicate to the jury that in order for the jury to consider this evidence in its deliberations, it's necessary for there to be an additional witness who will provide the basis for them to consider it.
MR. AGNIFILO: Fine. Thank you, Judge.
MR. LESKO: Thank you, Your Honor.
(Sidebar end.)
(Continued on following page.)
(In open court.)
THE COURT: All right, let's bring in the jury.
(Jury enters.)
THE COURT: Please be seated, everyone.
Mr. Lesko, you may continue your examination of the witness. The witness is reminded that he is still under oath.
MARK VICENTE: Yes, Your Honor.
MR. LESKO: Thank you, Your Honor.
BY MR. LESKO:
MR. LESKO: Mr. Vicente, when we took the break, you indicated when I asked you if the request to alter videotapes was illegal, you said "yes" and "no." You described it "yes," it was illegal under U.S. law, but "no," not according to some other explanation.
As you sit here today, do you think that the agreement and ultimate actual alteration of the videotapes that were produced in the case was illegal?
MR. AGNIFILO: I'm going to object to the form of the question.
THE COURT: Sustained.
BY MR. LESKO:
MR. LESKO: As you sit here today, do you think that the alteration of the videotapes was legal or illegal?
MR. AGNIFILO: Same objection.
THE COURT: You may answer. You may answer. Go ahead.
MARK VICENTE: Illegal.
MR. LESKO: So can you just give us an overview of the process that was used to alter the videotapes?
MARK VICENTE: I'm just --
MR. LESKO: Just a very high overview. We will discuss the specifics in a bit.
MARK VICENTE: Okay.
Basically, there were a few stages. The first stage was that the people in legal -- legal department were to determine what needed to be removed. We were then -- the video department was then given a list of, you know, remove these things here from this number to this number. We would then use various processes to remove it and then processes to create glitches to make it look like it was natural, that nothing was actually removed. Then a final master copy was made, that was then duplicated a number of times to give it the appearance of being older, multiple generations, then labels were put on that would age the -- there was some scuffing that occurred to make things look older, then that was handed off to -- back to the legal department and then went wherever it went.
MR. LESKO: Did other members of NXIVM's video department work with you on this project?
MARK VICENTE: They did.
MR. LESKO: Did those members include Ken Kozak, Megan Mumford, Chris Scott Mumford, and Adrian?
MARK VICENTE: Yes.
MR. LESKO: Showing you what's been admitted as Government's 24, what is that photograph? Who is in that photograph?
MARK VICENTE: Adrian.
MR. LESKO: Did Adrian have a nickname?
MARK VICENTE: He did.
MR. LESKO: What was the nickname?
MARK VICENTE: Fluffy.
MR. LESKO: Now, Chris, who was Chris?
MARK VICENTE: Chris was somebody who worked with me in the video department. They were, like, a production manager; they would schedule things, they would help figure out who was available. They would, in essence, manage a lot of the day-to-day affairs.
MR. LESKO: Adrian -- did Adrian work for you?
MARK VICENTE: Yes.
MR. LESKO: Was Adrian the brother of Cami and Dani and Marianna?
MARK VICENTE: Yes.
MR. LESKO: Who were Megan and Scott Mumford?
MARK VICENTE: Megan Mumford was somebody that worked with me as well in the video department and ended up managing it for a while afterwards. She was a coach in the organization, she was a photographer, and her brother, Scott, worked with us for a while. He was, generally speaking, a shooter -- video shooter -- and he did some sound and some editing. I don't recall if he was a coach. He may have been a coach.
MR. LESKO: And Ken Kozak, who was Ken Kozak?
MARK VICENTE: Ken Kozak was somebody who worked in the video department as well for a long time, pretty much the entire time I was there. He had a lot of high-tech skills and he loved editing, shooting, audio. I don't think that he was a coach; I think he was always just a student.
MR. LESKO: So did you and the people who assisted you in altering the videotapes need anything from the legal department in order to get started?
MARK VICENTE: Well, we needed was a list of what needed to be removed with specific time codes and also -- what you always do in this situation is you don't just want the number, you want to know what was the last few words before you make the cuts and then on this side what are the first few words so that you have a way to double-check so you're not just using numbers, so we needed a list like that.
MR. LESKO: And do you recall who in the legal department you worked with on this project?
MARK VICENTE: I believe it was Kristin, Keith, potentially Clare Bronfman, and there were some others that were -- that were involved with legal that I think did quality control.
MR. LESKO: Did you receive those notes or the time codes and related information that you needed from legal?
MARK VICENTE: I believe so. I recall seeing them on one of the editing desks, they were handwritten, and they were used to make the determination of what we should do.
MR. LESKO: So what happened after you received the handwritten information that you needed from legal?
MARK VICENTE: Then it was a question of determining, you know, what methods we would use to actually remove things. It's a bit complicated, but basically sometimes we would take the tapes and move them into -- into a computer -- into a computer-editing system and remove sections there and sometimes put static in.
Sometimes we would go machine to machine -- doing machine to machine dubbing, or sometimes we would also do machine to machine -- you know, in the days before HDMI when you had multiple cables, we'd go machine to machine with multiple cables and we would jiggle the cables and push them in and out which created all kinds of interference.
So that was the next step, and then it was just a question of figuring out which one of those things we would do and we would try to, to some degree, randomize it so it seemed natural, you know, what we termed "organic."
We would also create glitches in areas where there was no removal so that it didn't look like, oh, that thing was removed. It was like, oh, there seems to be a problem in this tape in general to, in some ways, create a smokescreen to hide the specific areas.
MR. LESKO: Do you recall what type of digital tape was -- that was dubbed -- the type of digital tape that was used to --
MARK VICENTE: I believe it was MiniDV. It may have been Hi8, but I think it was MiniDV.
MR. LESKO: What type of analog tape was used?
MARK VICENTE: That was VHS.
MR. LESKO: What was your role in this process?
MARK VICENTE: My role was basically designing how it would happen. You know, I had the technical knowledge of what to do and designing it and then working with the team to figure out, okay, these are the methods that we'll use; and then the team was basically implementing these different things all the way down to final delivery.
MR. LESKO: And where did the dubbing occur?
MARK VICENTE: The -- most of the editing, as far as I recall, occurred at 13 Twilight Drive in one of our editing rooms. I believe a lot of the dubbing -- the actual multiple generational dubbing I believe happened at Apropos.
MR. LESKO: So there were two steps in the process?
MARK VICENTE: There were, yeah.
MR. LESKO: So what was step one?
MARK VICENTE: Step one was actually removing the material and creating -- creating a master. So, you know, you would start in this digital realm, you would import it into, you know, a computer or you would move to VHS, and you would do it -- one of a number of different kinds of processes to remove things and create glitches.
Then a master was created and then my recollection was that the dubbing wasn't done on 13 Twilight. There were multiple machines that were set up, as far as I recall, in Apropos.
MR. LESKO: And is "dubbing" another word for "copying" basically?
MARK VICENTE: Dubbing is copying, correct.
MR. LESKO: Was the master tape after it was made that included the edits, was it copied multiple times?
MARK VICENTE: Yes. In the VHS world -- I mean VHS world versus digital, if you copy VHS again and again you basically degrade the quality, so the idea was to degrade it further and further as another method to hide the glitches so that it might look like it had been sitting around for a very long time.
MR. LESKO: Apart from the videotapes used for the copying, the videotapes that were altered, were there multiple videotapes that were altered?
MARK VICENTE: There were -- yes, there were. I mean, I -- I think -- I mean, it was more than ten for certain -- for sure.
MR. LESKO: And where did this copying process for each videotape happen?
MARK VICENTE: The copying, slash, dubbing?
MR. LESKO: Correct.
MARK VICENTE: I believe that happened at Apropos, from what I remember.
MR. LESKO: Was any equipment purchased in connection with this project?
MARK VICENTE: There were a number of VHS machines purchased. I think there was also a -- one or two maybe combo decks purchased as well. "Combo deck" being, you know, like a mini DVD player and a VHS machine together. I think it was somewhere between eight and ten that were purchased for this project.
THE COURT: Purchased for this project specifically?
MARK VICENTE: Yes. And then they just lay around for years.
THE COURT: If you know, who selected the tapes that would be altered?
MARK VICENTE: I don't actually know specifically.
THE COURT: And who told you to alter the tapes?
MARK VICENTE: Well, it was a combination of Raniere and the people in the legal team. Once I -- once I agreed, I did what was asked.
THE COURT: None of whom were lawyers.
MARK VICENTE: None of them were lawyers, no.
THE COURT: All right. Go ahead.
BY MR. LESKO:
MR. LESKO: So let's talk about step one, and that was the editing process that resulted in the master edited tape.
Who participated in that process?
MARK VICENTE: I recall Adrian participated in some of it. I don't recall exactly, you know, who was doing everything. I know Adrian was involved in some of it. I think some of the other members, like Ken Kozak, was involved in some of it. The exact -- like who was doing what process on what machine, that, I don't recall very clearly.
MR. LESKO: Did you give them direction in terms of what to do?
MARK VICENTE: Yes. There was a certain amount of experimentation and then we decided on a basic game plan and then the idea was just do -- do one of, you know, these number of different things to make it look as natural as possible.
MR. LESKO: And so on the completion of step 1, you move to step 2, which was the copying -- multiple copying dubbing of the tape -- the edited tape?
MARK VICENTE: When you say "the step before" you mean the actual editing and then moving to dubbing --
MR. LESKO: Right. You're editing is step 1 --
MARK VICENTE: Yes.
MR. LESKO: -- copying/dubbing is step 2.
MARK VICENTE: Yes.
MR. LESKO: Who participated in the copying/dubbing step 2 part of the process?
MARK VICENTE: I don't recall exactly.
MR. LESKO: Okay. Were there people at Apropos that were part of that process?
MARK VICENTE: Yes. Yes.
MR. LESKO: What part of the process, if any, was Chris involved with?
MARK VICENTE: Chris was involved with the schedule, making sure that things were moving, and, you know, there were requests I was making, you know, which is, in essence, where are things at and, you know, I would like to get these machines, you know, like, out of here because they were just sitting around for a long time. Scheduling, pretty much, and overseeing and making sure that the team was doing the things that they were tasked to.
MR. LESKO: Do you ever recall actually watching the videotapes that were being edited?
MARK VICENTE: I recall watching some of the glitched portions. I don't believe that I watched the entire thing. I was focused more on, like, what kind of glitches would be used where.
(Continued on the following page.)
EXAMINATION BY MR. LESKO:
(Continuing.)
MR. LESKO: You mentioned the time coding in the digital format is another term for that, or is that sometimes called metadata?
MARK VICENTE: Yes. Metadata is a general term for the information that is not visual about the material. That's a general term. Time code is a kind of metadata. It's something you don't see, but it's embedded in the material.
MR. LESKO: So just so I understand. The end result of step one, the editing process, would have resulted or resulted in the removal of portions of the original videotape; correct?
MARK VICENTE: Correct.
MR. LESKO: Other alterations of the videotape; correct?
MARK VICENTE: Yes.
MR. AGNIFILO: Your Honor, I'm going to object.
THE COURT: Restate the question.
MR. LESKO: So what was the end result of the editing part of the process, step one?
MARK VICENTE: The end result was some kind of master tape that could then be copied. And then, finally, you know, those copies -- a final copy would be delivered back to Legal.
MR. LESKO: And was the metadata or the time stamp information removed as well?
MARK VICENTE: It was removed in the process. In the process from moving from digital to what I term the "analog world" of VHS that information gets removed.
MR. LESKO: Any members of the NXIVM community that I haven't named participate in the copying or dubbing part of this process?
MARK VICENTE: We haven't named any. There was some quality control that we there was a final check. Once we had the master, somebody had to evaluate everything was done according to spec. Specs means if you look at the sheet of paper, did this tape that got produced match what was requested. So that quality control was done by Danny and Lisa Durst.
MR. LESKO: Do you recall Clare Bronfman's specific role in the editing of the videotapes?
MARK VICENTE: My understanding was she was part of the legal team at that point. I don't know if she was involved in the actual editing. She was part of the legal team and was aware, reading those e-mails, aware of what was going on.
MR. LESKO: We can read those e-mails, your Honor, if I can show the witness?
THE COURT: Hold on. Okay.
MR. LESKO: Mr. Vicente, I'm going to show you for identification purposes what's been marked as Government's 1396R?
MARK VICENTE: Yes.
MR. LESKO: Do you see that whole document?
MARK VICENTE: I do.
MR. LESKO: Do you recognize it?
MARK VICENTE: I do, yes.
MR. LESKO: What is that document?
MARK VICENTE: It was sent by Chris to Nancy Salzman. Clare Bronfman was CC'd, I was CC'd, and Kristin Keeffe was CC'd and was confirming the request.
MR. LESKO: In the e-mail?
MARK VICENTE: Yes, that's the e-mail.
MR. LESKO: Do you recall receiving that e-mail?
MARK VICENTE: Yes.
MR. LESKO: Your Honor, we move Government's 1396R.
MR. AGNIFILO: No objection.
THE COURT: Government's 1396R is received in evidence and you may publish it to the jury.
(Government's Exhibit 1396R was received in evidence as of this date.)
MR. LESKO: So that e-mail is from Chris?
MARK VICENTE: Correct.
MR. LESKO: To Nancy Salzman?
MARK VICENTE: Directly to Nancy Salzman and then myself, Kristin Keeffe, and Clare Bronfman are CC'd.
MR. LESKO: Now, in the first sentence, you say, "Here is my understanding of the request for the tapes of the 16-day Intensive that Kristin would like for legal."
So the tapes were of a 16-day Intensive?
MARK VICENTE: Yes, it was. And I believe it was an example of an Intensive. I think that was the thing that was being requested was, you know, a 16-day Intensive on the tape. And there were claims in that Intensive that had to be removed.
MR. LESKO: Okay. And the e-mail was sent on June 21, 2008?
MARK VICENTE: Correct.
MR. LESKO: It indicates when it's needed by?
MARK VICENTE: It's indicated that it's needed by Wednesday, June 25th.
MR. LESKO: Under item two. Item two mentions, edit one and edit two stations.
Do you know what that means?
MARK VICENTE: Yes, there were two editing systems in 13 Twilight Drive in the editing rooms. There were two unique desks with computers and monitors and that kind of thing and video editing systems, in essence.
MR. LESKO: Item three indicates that we will have, well, we will have two people in there reviewing the tapes, end quote.
Is that the quality control process that you described?
MARK VICENTE: I'm not certain if that was quality control or original review, actually.
MR. LESKO: And then item three goes on to state, quote "Either one or two people helping to edit (probably me and someone else ideally Megan if she can do it)."
This e-mail is from Kristin. So you recall that Kristin had a role in the initial editing of the videotapes?
MARK VICENTE: I don't recall. I do know that she was helping me manage it, but I don't remember if she had an actual role in editing.
MR. LESKO: And Megan is Megan Mumford?
MARK VICENTE: Correct.
MR. LESKO: Item four discusses purchasing a new VCR; is that right?
MARK VICENTE: Correct. Actually, in the end, many more were needed.
MR. LESKO: And then the last part deals with when to start the project; correct?
MARK VICENTE: Correct.
MR. LESKO: Your Honor, if we could publish this just to Mr. Vicente.
THE COURT: Go ahead.
MR. LESKO: I'm showing you what's been marked for identification as Government's 1397R.
Do you recall that document?
MARK VICENTE: Are you able to go wider?
MR. LESKO: Wider? Sure.
MARK VICENTE: Yes, I do.
MR. LESKO: And what is that document?
MARK VICENTE: That is a memo that I wrote, looks like, June 30, 2008. I do not recall if I e-mailed it or if I printed and hand delivered, but that's a memo I wrote to the team.
MR. LESKO: Either way, this memo was distributed to the team?
MARK VICENTE: Yes.
MR. LESKO: All right. Was it in that timeframe of June 2008?
MARK VICENTE: Correct.
MR. LESKO: Okay. And this is the actual memo that you drafted and distributed to your team?
MARK VICENTE: Correct.
MR. LESKO: Your Honor, we move Government Exhibit 1397R.
MR. AGNIFILO: No objection.
THE COURT: Government Exhibit 1397R is received in evidence and published to the jury.
(Government's Exhibit 1397R was received in evidence as of this date.)
MR. LESKO: What was the title of this memo?
MARK VICENTE: "The project That Never Seemed to End."
MR. LESKO: Why did you use that title?
MARK VICENTE: I had a low tolerance for things that started, that just kept on going, and didn't have an end date. And things were lying around. I recall a lot of machines lying around and I wanted it wrapped up.
MR. LESKO: So you -- the header indicates that this memo has to dos.
What did you mean by that?
MARK VICENTE: My understanding is things that needed to happen and I wanted to, you know, my style was to do a series of bullet points of all the things that needed to be done to make sure that things didn't, you know, fall through the cracks. So that's what I meant by to dos, all the different things that needed to be done to finish.
MR. LESKO: Did you include to dos for Monday June 30, 2008?
MARK VICENTE: Yes.
MR. LESKO: What were they?
MARK VICENTE: So new machines that were purchased need to be placed in the small production office on the long way table which I'd like moved there. We will be making VHS and mini-DVD clones which I would like moved in there temporarily. We will be making VHS and mini-DVD clones over the next week.
MR. LESKO: You don't have to read the whole thing. You can summarize for us.
MARK VICENTE: Basically, where the items were to be placed. And also that they were loaned TVs and VCRs that needed to be returned to their owners. And also, the next item was the legal team needs to remove things from the house. In other words, the house had a great many -- the editing rooms had a great many things in them already and I wanted to make sure that the things that we didn't need were removed.
MR. LESKO: And just to move quickly, the next couple items involve house cleaning and Fluffy or Ken provided the bins and tool boxes and the petty crash; correct?
MARK VICENTE: Correct.
MR. LESKO: And the next category of to dos involved Monday or Tuesday; is that right?
MARK VICENTE: Yes.
MR. LESKO: Okay. And why don't you briefly summarize what those to dos were?
MARK VICENTE: Yes. It was basically the idea was to have a meeting just to debrief on everything and what still needed to happen. And I have an item, the list of things to discuss.
MR. LESKO: So what was the first, I will point it out. What was the first item to discuss at this debrief meeting?
MARK VICENTE: It says, "The duplication of tapes Keith has asked me for." Then it says, "The aging and weathering of the masters." "Everyone signing nondisclosure agreements for this project." "Everyone submitting their hours." And "discuss what to do with all the purchased equipment."
MR. LESKO: All right. Is there a to-do list for Friday?
MARK VICENTE: Yes. The final to-do list was putting all the purchased VCRs in their boxes with all the things that came with it.
THE COURT: What was the purpose of that?
MARK VICENTE: Just to put it away but rather than, you know, in a jumble the way we got it, just put it back somewhere that way. My team had a habit of dumping things everywhere.
MR. LESKO: Your Honor, if we could just publish to the witness for the next one.
THE COURT: Okay.
MR. LESKO: Thank you.
MR. LESKO: I'm going to show you, Mr. Vicente, what's been marked as Government's Exhibit 1395R for identification.
Do you recognize that exhibit?
MARK VICENTE: Yes. This is an e-mail from -- it's a response to an e-mail from myself. I sent an e-mail July 12, 2008, to Ken and Fluff asking for a timeline on completion. And this e-mail above so Ken Kozak's response for my request for a timeline.
MR. LESKO: And Fluff is Adrian?
MARK VICENTE: Correct.
MR. LESKO: And the response from Ken Kozak is also dated July 12, 2008?
MARK VICENTE: I can't see. Yes.
MR. LESKO: And who is CC'd on that response?
MARK VICENTE: Adrian is CC'd, Chris is CC'd, and Dan Brotman is CC'd.
MR. LESKO: Your Honor, if I could just have a moment?
Could I have a moment to show Mr. Agnifilo something very briefly.
THE COURT: Sure.
(A brief pause in the proceedings was held.)
MR. AGNIFILO: Can we have a quick sidebar.
(Continued on the next page.)
(Sidebar conference held on the record in the presence of the Court and counsel, out of the hearing of the jury.)
MR. AGNIFILO: Is, Judge, I'm concerned these exhibits pursuant to the Court's ruling is Kristin is blacked out. The true name of the person we are talking about is Kristin is blacked out. I don't know that there's going to be evidence at this trial that Kristin is a sex trafficking victim, but the jury now thinks that Kristin is a sex trafficking victim which is bad, and it's even worse that she's a sex trafficking victim in 2008 because of the racketeering charge and the RICO conspiracy charge.
So the jury now knows that Kristin, just by virtue of the fact that her true name is blacked out and Kristin is put in there is a sex trafficking victim based on no evidence at this trial, and that it's going to tie it, in my opinion, to disparate parts of this case together in what seems to be a RICO enterprise.
So I'm concerned that the ongoing prejudice of this system that has been imposed on me is continuing to render prejudicial fruits.
MR. LESKO: Your Honor, Crystal Brooks was a second line slave in DAS, she was branded. And therefore we believe qualifies as a -- clearly as a victim in this case.
I would also note that there aren't two parts in this case. It's one enterprise. DAS is part of that enterprise, but we do not agree with the contention that there were sort of two parts of the case one involving DAS and one not involving DAS. And but regardless Ms. Brooks was clearly a victim as we've defined that.
MR. AGNIFILO: Is there going to be evidence at this trial of that?
MS. PENZA: Your Honor, Mr. Agnifilo keeps trying to make your ruling about sex trafficking and that was not your Honor's ruling as to victims in this case. Here the Government believes that there is going to be humiliating evidence about Ms. Brooks who may be a testifying witness in this case; and so, it's totally appropriate to black out her name and your Honor has already instructed the jury that they're not to draw any conclusions from that.
THE COURT: I'm going to allow it and you have your exception if that's what it is. Your continuing exception.
MR. AGNIFILO: Yes.
THE COURT: I haven't forgotten it, it's only been two days. And, you know, at least for the time being I do remember two days before the event.
MR. AGNIFILO: I understand the added component is that I do believe there's a prejudicial aspect to the RICO and the RICO conspiracy.
THE COURT: I see. All right. Well, you know, there's more to come and we'll see where we are at the end of the process.
Thank you.
MR. AGNIFILO: Thank you, Judge.
(Sidebar discussion concludes.)
(Continued on the next page.)
(In open court.)
THE COURT: All right. You may continue.
For the witness only.
MR. LESKO: For the witness only.
EXAMINATION BY MR. LESKO:
(Continuing.)
MR. LESKO: Do you recognize those two e-mails, the ones you sent and the one sent in reply?
MARK VICENTE: I do, yes.
MR. LESKO: Your Honor, we'd offer Government's 1395R.
MR. AGNIFILO: Other than my remarks at sidebar, I have no objection.
THE COURT: I understand. Government Exhibit 1395R is received in evidence.
(Government's Exhibit 1395R was received in evidence as of this date.)
MR. LESKO: Okay. Let's start with the e-mail you sent.
MARK VICENTE: Yes.
MR. LESKO: I don't think we have to read the whole thing, but essentially are you asking for a timeline or a schedule for when the project would be completed?
MARK VICENTE: I am, yes.
MR. LESKO: And are you also asking for a date when the bins would be received and where the bins would be obtained from?
MARK VICENTE: Correct.
MR. LESKO: And you want your basement cleaned?
MARK VICENTE: Yes.
MR. LESKO: Okay. All right. So the e-mail in response sent on July 12, 2008, does it indicate -- does it address the issue of timing?
MARK VICENTE: Yes. The response is there have been delays, and then a projection of when it would be completed.
MR. LESKO: Okay. And in the second sentence, Mr. Kozak uses the term "copies." Does that reflect the second step we've discussed, the dubbing, copying part of the process?
THE COURT: I'm sorry.
MR. LESKO: Withdrawn.
MR. LESKO: Would the copies be the result of the second step of the process, the dubbing and copying process?
MARK VICENTE: Let me just read for a second. I believe so.
THE COURT: I'm sorry, Mr. Lesko, I haven't turned on the monitors on the first part of it so do you want to go over that?
MR. LESKO: The bottom part.
THE COURT: The bottom part that you showed first. Just for the jury's benefit.
MR. LESKO: Okay. Sure.
MR. LESKO: The bottom part is the e-mail that you sent, Mr. Vicente?
MARK VICENTE: Correct.
MR. LESKO: And there you're basically asking for an estimate in terms of timeline?
MARK VICENTE: Correct.
MR. LESKO: Okay. Timeline for the project, timeline for the bins, timeline to get your basement cleaned?
MARK VICENTE: Correct.
MR. LESKO: And discussing Mr. Kozak's response and the first paragraph deals with when he estimates the copies would be done; is that correct?
MARK VICENTE: That's correct, yes.
MR. LESKO: It indicates what does he say about when the copies would be done?
MARK VICENTE: As of later tonight, he said, so that would have been July the 12th, the VHS copies will have been made and that he says because of some other things that need to occur and the machines that are not available including P's reviewing of tapes is in reference to Nancy Salzman. Her nickname was P.
MR. LESKO: Why was her nickname P?
MARK VICENTE: It was short for Prefect. It was an affectionate term. So based on that, it looks like he says he will have a completed the next night.
MR. LESKO: Okay. And I don't know if we need to go into them in detail, but the second paragraph deals with the bins and the third paragraph deals with?
MARK VICENTE: The basement.
MR. LESKO: Cleaning the basement?
MARK VICENTE: Yes.
MR. LESKO: Do you have an understanding as to who at NXIVM would have authorized the purchase of the VHS machines that were used in the copying process?
MARK VICENTE: At that time, the two people authorizing those kinds of things would have been Clare Bronfman and Nancy Salzman. I don't recall which one but they were the people that were authorizing purchases at that point.
MR. LESKO: Did that responsibility change from Clare Bronfman to -- from Nancy Salzman to Clare Bronfman at some point in time?
MARK VICENTE: It did. In the last few years that I was there, Clare Bronfman was the only person that was approving purchases.
MR. LESKO: So along with editing and removing parts of the videotapes and other alterations to the videotapes, did your team do anything to the exterior of the videotapes?
MARK VICENTE: There was what I term the "aging process." I don't recall if it was, you know, the video team or legal or a combination of both, but the there was a process whereby the labels were aged and the actual cassettes were aged as well. That would have consisted of scuffing, using sandpaper and rocks and that kind of thing to age them further. I don't recall the exact nature of the aging of the labels. In other words, I don't recall the exact method we used to age the labels.
THE COURT: What is aged with the sandpaper.
MARK VICENTE: The actual cassettes, the plastic cases, were to make to look like it had been jiggled around for a long time, that kind of thing.
MR. LESKO: So was that to make them look older than they actually were?
MARK VICENTE: Correct.
MR. LESKO: And the same with the label?
MARK VICENTE: Correct.
MR. LESKO: So was the entire process completed at some point in time?
MARK VICENTE: I believe it was. I don't have an exact recollection, but I do recall at a certain point that there was a box of the completed tapes that was handed off to Legal. And by Legal I mean this department.
MR. LESKO: And was it your understanding that the altered videotapes were produced in the case?
MARK VICENTE: Much later, yes. I don't think that I knew much more at that point much later I found out, yes.
MR. LESKO: Did you have discussions with the defendant about the status of the videotape editing project?
MARK VICENTE: I don't recall if I had an exact conversation like that. Generally, in our process, I would, you know, I would report on everything. So I can only assume that I would have reported.
MR. AGNIFILO: I object.
THE COURT: Sustained.
MR. LESKO: In your experience with the defendant, when he asked you to perform a task or complete a project, would he check on the status of that project?
MARK VICENTE: He was extremely precise about checking.
MR. LESKO: Would that happen often?
MARK VICENTE: Yes.
MR. LESKO: And would he check on the status of the project until it was completed?
MARK VICENTE: He would. Or even if it wasn't completed, whatever it was he would keep checking.
MR. LESKO: So when you agreed to alter the videotapes, which you said was illegal.
MARK VICENTE: Yes.
MR. LESKO: Why did you do that, why did you agree to illegally alter the videotapes?
MARK VICENTE: I think it was to get his approval, to curry favor. He was a --you know, there were a bunch of terms on this like, you know, Big Dog, that kind of thing. Somebody you respected. I guess for approval.
MR. LESKO: Let's go back over the types of edits that were done to the videotapes.
And were the glitches or edits placed only in connection with the portions that were removed or were they -- were there glitches placed throughout the various videotapes?
MARK VICENTE: No, they were placed throughout the videotapes, obviously, on the sections removed but then in other places to strategically suggest, you know, some kind of general tape problem. We would put them at random intervals at different places so it would like more natural.
MR. LESKO: And the types of glitches that you manufactured, would they have happened just in the normal course of transferring a video from, say, DVD to VHS, just normally?
MARK VICENTE: Perhaps at the very beginning or at the very end of a transfer. They wouldn't happen in the middle in the fashion that we created.
MR. LESKO: Why not?
MARK VICENTE: Because there would be no signal loss, really, unless there was a power failure of some kind and somebody had restarted everything. Once something starts, there is a fairly consistent pattern. It's usually when you start the thing that there's usually a glitch of some kind or when you end it. But it tends to be the rest of the middle tends to be more uniform.
MR. LESKO: So some maybe all of us have experienced this, but if there is a glitch resulting from a signal loss, it would be like a little line or a line wavy. It would continue throughout the entire videotape?
MARK VICENTE: So, for instance, if there was a large magnet near a machine, you know, you'd see this like a bunch of interference but it's consistent drops, it keeps on going throughout.
THE COURT: Now, just remind here. These recordings were made on DVDs originally?
MARK VICENTE: Originally, I believe, they were made on it was like Hi8 or mini-DVD originally.
THE COURT: And so, you were transferring the sound and images from DVD to VHS?
MARK VICENTE: Correct. Or into an editing system and then they would go to VHS.
THE COURT: All right.
MR. LESKO: So is it fair to say that there were four types of edits that were used for these videotapes?
MARK VICENTE: Yes.
MR. LESKO: Okay. Was one type something that you would call a "static cut-in"?
MARK VICENTE: Yes. What you would do is you would -- the tape would move from, you know, it's the tape world into the computer world. And, in essence, what you would do is you would remove the section that had to be removed and in its case place you would put static, a static signal, which generates on the computer quite easily or copy static from some other tape and insert it in there. That was generally one method. We would do other things as well, but sometimes it was just play, play, play, suddenly static, and then it would start playing again, and there was something missing in the middle.
MR. LESKO: Was the second type of edit something called "intermittent signal"?
MARK VICENTE: Yes. That was done machine to machine. So, in essence, you'd have two machines and you'd have, you know, you would use the cable that have what are we 3 B and C connecters. Red and white for sound, yellow for video. And what would happen is you would play from one to the other and you would, in essence, jiggle if you jiggled the video cables a bit or a lot just sometimes even pull them out or put them back in, you would get all kinds of, not artifacts, but you'd have glitches that would occur, things would go black and come in out, and that was another kind of glitch that we would create.
MR. LESKO: Was a it third type of edit called a "straight cut"?
MARK VICENTE: Yes. In that case, we would play from one machine and record on another. So let's say this machine is playing, this machine is recording, you'd look at the notes, and once it got to that point you'd suddenly lid press pause on this machine, this would keeping playing the offending section, and you would unpause, and there would be a little glitch and it would continue. This was another method.
MR. LESKO: The was a fourth, another form of straight cut?
MARK VICENTE: That was, again, machine to machine. But, in that case, instead of pausing on this machine, you may actually stop the machine and then keep this playing and then you would start recording this machine again. What that would do is, you know, on those machines once you hit record it took, like, a few seconds to sort of find the signal. Then there were call kinds of patterns that would occur until it stabilized. So that was more aggressive cut than the prior cut.
MR. LESKO: So why don't we use this for shorthand. There are four methods.
Method one we'll call the "static method." Method two, we'll call the "jiggle method," okay with the cords. Method three, we'll call the "pause cut" because it's a pause. And method four, why don't we call it a "stop cut"?
MARK VICENTE: Sure.
MR. LESKO: For stop, okay?
MARK VICENTE: Understood.
MR. LESKO: Now one and two, the static and jiggle methods, could they be done together?
MARK VICENTE: Yes. The idea was to introduce it, put the static in there and also to put an additional problem in there, in that case, we could do what I call the jiggling so it would hide the static. The issue with the static was it was a very clean cut. So if you jiggled, it would look messier and more organic or more natural.
MR. LESKO: Just generally, why would you use the jiggle method?
MARK VICENTE: To suggest that there was some kind of issue with the tape. It wasn't, like, really a hard science it was just to suggest because those kinds of things potentially could happen, you know, perhaps in the training room. So it was just an idea that we came up with because it would create intermittent signal loss and just it would hide some things.
MR. LESKO: And do you recall these four types of edits being done to the videos in 2008 being altered?
MARK VICENTE: I do.
MR. LESKO: Okay. Now, I want to refer you to Government's Exhibit 605-A, B, C, and D.
You've reviewed short portions of videotapes that include these four types of edits haven't you?
MARK VICENTE: I have, yes.
MR. LESKO: Okay. And do they reflect in combination the four types of edits that you just described?
MARK VICENTE: I believe they do, yes.
MR. LESKO: Okay. And do you -- you testified that you didn't actually watch the videotapes at the time in 2008?
MARK VICENTE: Not the entirety. I was more focused on the actual areas that needed to be removed.
MR. LESKO: Can you say that the four videos that you watched that they were, in fact, the actual videotapes that were edited in 2008?
MARK VICENTE: I believe they are. They seem very consistent with the methods I'm describing. I don't recall the content of all the tapes. I know they were Intensives, but it seems very consistent.
MR. LESKO: Your Honor, we seek to admit government's 605-A, B, C, D subject to connection.
THE COURT: Subject to connection.
MR. AGNIFILO: Can I have a minute to think about something?
(A brief pause in the proceedings was held.)
MR. AGNIFILO: Your Honor, could I have a brief voir dire?
THE COURT: Sure.
MR. AGNIFILO: Thank you.
VOIR DIRE EXAMINATION BY MR. AGNIFILO:
MR. AGNIFILO: Mr. Vicente, my name is Mark Agnifilo, I'm Keith Raniere's lawyer.
The videotapes that you watched that the Government is now seeking to admit in evidence, can you tell if the edits were intentionally done on those videotapes?
MARK VICENTE: Intentionally done? They're done in areas where cuts normally wouldn't occur. In other words, generally speaking, Intensives, once a person got to the end of a topic, the trainer, somebody would cut the camera and then it would start again as they got back in front to teach the class. And these were generally not at those times. These were more when people were talking they continued talking.
MR. AGNIFILO: But there's nothing about the edit itself that would lead you to conclude that this was an intentional change to a recording or an inadvertent something else to a recording. Is that fair to say?
MARK VICENTE: The only thing that's -- it's inconsistent with what would normally happen in an Intensive. But because I don't know what was specifically removed I couldn't say, oh, I know that these words were removed or this sentence. I can't tell you that.
MR. AGNIFILO: And you don't know because you didn't -- you never looked at the tapes that were allegedly altered at the time; correct?
MARK VICENTE: I looked at them generally because I had to determine, you know, what kind of sort of effects we would use. But I don't recall the exact, I mean, they were 16-day Intensive tapes I believe. I don't recall the exact Intensive, I don't believe I was there when it happened.
MR. AGNIFILO: Do you know what year these Intensives were from?
MARK VICENTE: I don't recall.
MR. AGNIFILO: Do you know what the subjects were that were being discussed?
MARK VICENTE: Well, it was the 16-day Intensive, so it was the basically the content of the 16-day Intensive. So it's, you know, a huge, huge body of which it's actually all written somewhere so it's easy to compare.
MR. AGNIFILO: And you have no specific recollection, you don't know what tapes were altered at the end of the day through the process you described this afternoon?
MARK VICENTE: Specifically, no. Not all these years later I can't say with absolute certainty.
MR. AGNIFILO: Your Honor, I object.
MR. LESKO: Your Honor can we have a sidebar, please?
(Continued on the next page.)
(Sidebar conference held on the record in the presence of the Court and counsel, out of the hearing of the jury.)
MR. AGNIFILO: I'm not trying to undo the to subject to connection part. My concern is even if a NXIVM representative comes and says these were -- these are the tapes that we gave over in discovery, he's still not able to link those tapes that were given in discovery to anything that he did.
MR. LESKO: I think these arguments go to weight, honestly. The issue the witness is going to testify that the glitches or edits that are reflected on the four exhibits are the types of edits that he instructed his team to do with respect to the edited videotapes.
You heard voir dire so you heard the answers in terms of his personal knowledge of what was contained on the videotapes, but I don't -- the other point I'll make is we're talking about the admissibility now of the videotapes subject to connection. Just from an efficiency standpoint, these videotapes are going to be admitted into evidence because we're going to have a witness come, or a custodian or something, and it may end up being a stipulation that the videotapes themselves will come into evidence. So we're going to be in a position where I'm just going to have to recall Mr. Vicente and ask him to offer this testimony.
MR. AGNIFILO: See, my perspective is that it's not. The problem of whether this was turned over in the lawsuit because the first thing he said was it was related to a patent and the lawsuit has nothing -- you agree the lawsuit has nothing to do with patent. So we don't know that he's talking about these same videotapes because he's unable to say that these videotapes that he saw them. He doesn't know what the videotapes are; in fact, that he might have altered videotapes that were not turned over in the lawsuit. There is no linkage between what he did and the lawsuit.
MR. LESKO: Your Honor, the dates, the linkage, and he did testify that the papers were produced in a lawsuit. It doesn't -- all that's required is the tapes be produced in an official proceeding; and so, he can specifically testify that the tapes were produced in a lawsuit.
MR. AGNIFILO: He said he learned that later. He learned that later.
MR. LESKO: To be precise, he said "case," and then he said he thought it was a case involving a patent and he said specifically the later he learned it was a lawsuit.
MR. AGNIFILO: So what he understood was that was in relation to a patent ways in the the lawsuit.
MR. LESKO: Your Honor if I could add just one small point. When he reviews the videotapes, he will say this: The edits that are included in those exhibits are exactly the same type of edits that they -- that were done to the videotapes in question in 2008. I will say that these types of edits that are reflected in the exhibits that are not naturally occurring edits. And maybe that's the follow-up question because these edits would not have occurred as a result of a natural process as a result of a power surge or something to that effect. And maybe I can add some foundational questions.
THE COURT: See what you can do.
MR. LESKO: Okay.
(Sidebar discussion concludes.)
(Continued on the next page.)
(In open court.)
MR. LESKO: May I proceed, your Honor?
THE COURT: Yes, you may.
MR. LESKO: Thank you.
EXAMINATION BY MR. LESKO:
(Continuing.)
MR. LESKO: So, Mr. Vicente, you described the four types of edits we've gone through that were used in connection with the videotapes in 2008. And you've reviewed the exhibits that we just discussed. Were those exact types of edits those the four that we described were those reflected on those portions of videotapes that you watched?
MARK VICENTE: They were.
MR. LESKO: And do you recall that those specific types of edits were actually the ones done it the videotapes back in 2008?
MARK VICENTE: I do.
MR. LESKO: And would those types of edits that are reflected on the exhibits, would they have occurred naturally? In other words, would those types of glitches have occurred naturally on those videotapes?
MARK VICENTE: I don't believe so. As I said, it would be at the start or the stop of somebody pressing a camera. But that's a different effect.
MR. LESKO: And I believe you also said, and you can correct me if I'm wrong, that it would be would be consistent throughout the videotape if it was as a result of a natural occurrence?
MARK VICENTE: I believe so, yes.
MR. LESKO: Are the glitches that are reflected in the exhibits that we're talking about, are they consistent throughout the videotapes or are they --
MARK VICENTE: They're not. They're intermittent.
MR. LESKO: And did you believe that those are the types of edits that you and your team added to the altered videotapes?
MARK VICENTE: I do.
MR. LESKO: Okay.
MR. LESKO: Again, your Honor, we offer the Exhibit 605-A, B, C and D subject to connection.
THE COURT: I overrule the objection and the videotapes are admitted subject to connection. In other words, that there will be a witness who will authenticate these videotapes, the authenticity of the videotapes. And whether or not they should be considered by the jury during your deliberations is not if the Court determines that they should not be the Court will advise the jury.
So, otherwise, and until such time the videotapes are admitted in evidence, add least as demonstrative of the processes that are being testified to by the witness, but you will be advised if for any reason the videotapes and the testimony as to those tapes should not be considered by the jury.
(Government's Exhibits 605-A, B, C, and D were received in evidence as of this date.)
MR. LESKO: Thank you, your Honor. May we publish beginning with Government's Exhibit 605-C?
THE COURT: Yes, you may.
MR. LESKO: I think we're going to play the video in the courtroom. If you could pull up 605-C and if you could go to just maybe ten seconds before 26:35.
Actually, could we stop for one second.
Your Honor, would there be a way to dim the lights in the courtroom just so...
(A brief pause in the proceedings was held.)
MR. LESKO: Your Honor, we seem to be having some technical issues, and given that it's very close to being done, would it make sense to possibly leave a couple minutes earlier today. I don't want to get people's hopes up, sorry.
THE COURT: Do you want to go forward?
MR. LESKO: Yes. Yes. I think might as well make use of the time.
THE COURT: All right.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: If you could pause that. Keep going I'm sorry.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: If we could stop it.
EXAMINATION BY MR. LESKO:
(Continuing.)
MR. LESKO: Do you recognize some of those, or do you need to replay it?
MARK VICENTE: There was a pause before some kind of effect. I need to see it again.
MR. LESKO: Let's go back to 26:30.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: Okay. We can stop it.
MR. LESKO: So what does that excerpt reflect?
MARK VICENTE: That there's no interruption in the actual dialogue, so my belief is that that's an example of the jiggling of probably only the yellow cable because you don't really hear the sound cut out. It seems to stay uniform and there doesn't seem to be any time missing. So my belief it would be the second example or what I think we termed "cable jiggling."
MR. LESKO: Okay. If we could go forward to 27:30.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: Okay. We could stop.
MARK VICENTE: So it's an example of a few things. The first example is the cable jiggling. Then there appears to be an insert, the method one, static insert. And then there appears to be some additional cable jiggling at the -- towards the end of the static insert to try and hide the static cut point. That's two methods.
MR. LESKO: Thank you. Let's now, turn to Government's Exhibit 605-D. And if we could start at 12 minutes 30 seconds.
(Video file played in open court.)
(Video file concludes.)
MARK VICENTE: There appeared to be actually three things going on there. The one is jiggling, static insert, and then there appears to be the type three cut where it looks like the second machine is paused and then unpaused because there's a sudden change in time. There's missing time in there. There appears to be one of those pause/unpause things on the recording machine.
MR. LESKO: That's type one, type two, and type three?
MARK VICENTE: There appears to be, yes.
MR. LESKO: If we could forward to 26:40.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: Okay. What was that?
MARK VICENTE: That appears to be type three. It appears to be the pause/unpause. You can see there's time missing in there.
MR. LESKO: That's the pause cut?
MARK VICENTE: Yeah.
MR. LESKO: Okay. If we could forward to 27:10.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: Okay. You could explain?
MARK VICENTE: There was some what we call jiggling, static insert, but also the type four where you actually stop the recording machine and then begin recording again because you can see it takes some time. There was actually this field that seems to go down until it resolves. That's the actual machine trying to get a stable signal that happens with VHS. So that's how I believe it's because it was actually stopped and then the recording started again.
MR. LESKO: Thank you. If we could now turn to Government's Exhibit 605-A. And if we could go to 30 minutes and 25 seconds. Right, this is the one with the problem. Let's go to Government's Exhibit 605-B and if we could turn to 1 minute and 45 seconds.
(Video file played in open court.)
(Video file concludes.)
MR. LESKO: Okay. What is that?
MARK VICENTE: It is possible that something was done much later but it appears to be an in-camera cut where the video camera is actually stopped and then starts recording again. And the reason I also say that is because you look at the -- in every cut, there's an A side and a B side. So if you look at the cut, it's like somebody pressed the button on the camera, then they began recording again and that there's a jiggle that you see in the frame which is usually when the person releases the button, and when you release that button with a small camera, every time you release the button it shakes. If you notice on the B side the camera image, it actually shakes.
This likely happened at the time. It's not impossible that it wasn't an additional thing wasn't done, that is possible. But my first though is I think this was done at the time.
THE COURT: At the time of the actual recording?
MARK VICENTE: At the time of the actual recording.
THE COURT: All right.
MR. LESKO: Okay. Your Honor, I think it's probably a good time to end for today?
THE COURT: All right. Members of the jury, we're going to resume on Monday morning at 9:30.
If you're taking notes, please leave then in the jury deliberation room.
Let me remind you that it is extremely important that you follow my instructions; that you do not discuss the case with anyone. Not your family, your friends, or business associates and not other jurors.
In addition, you must not read, listen to, watch or access any accounts of this case in any form of media including newspapers, TV, radio, podcasts or the Internet. And you should not research or seek outside information about any aspect case.
Do not communicate with anyone about the case on your phone, whether through e-mail, text messaging, or any other means; through any blog or website, or by way of any social media including Facebook, Twitter, Instagram, YouTube or other similar sites.
You may not consider anything you may have read or heard anything about the case outside of this courtroom whether you read it before or during, whether you read it before or during jury selection or during the trial.
Do not attempt any independent research or investigation about the case.
Do not visit any of the location action identified during the course of testimony or in the questionnaire.
And we will see you on Monday morning. Have a good weekend. All rise far the jury.
(Jury exits courtroom at 5:02 p.m.)
THE COURT: All right. The witness may stand down. Do not discuss your testimony with anyone. We'll see you Monday morning, sir.
MARK VICENTE: Yes, your Honor.
THE COURT: All right. Everyone may be seated.
So that I can understand this. There will be a witness who authenticates these videos as to what? What is going to be authenticated about the videos.
MS. PENZA: Just that the videos are the ones that were produced in the Ross Franco litigation.
THE COURT: So that they are the videos that were part of that litigation that was testified to by this witness.
MS. PENZA: He has an -- I mean he testified to --
THE COURT: About the video?
MS. PENZA: General concept. I'm sorry.
THE COURT: What?
MS. PENZA: I'm sorry.
I don't think that this witness has testified as to what litigation these videos were produced in and I don't think that he can.
THE COURT: Right. I understand that. But the witness that's going to testify as to the authenticity of the videos will link these videos to the litigation that this witness believes was the reasonable for the manipulation of the videos.
MS. PENZA: That's the part that I'm not sure the testimony has shown and I don't think it needs to because the time -- what this witness has testified to is that in or around June 2008, he is tasked with editing videos. He believes it has something to do -- it clearly has to do with the legal department. The defendant has told him that they have to be edited because there were claims made.
And so, then these other evidence in this case will show that videos were, in fact, produced around that time in the litigation. Those videos show that the types of edits that he has described and will have other evidence of the motivation for this type of editing process.
THE COURT: And your witness as to authenticity is this witness going to testify that he or she believes that the videos that we just showed the jury were produced at that time.
MS. PENZA: Were produced at that time, yes, your Honor. In that litigation at that time.
THE COURT: In that litigation at that time.
MS. PENZA: Yes, your Honor.
THE COURT: All right. Let's see what we get from that witness before I let the jury consider the videos in their deliberations.
MS. PENZA: I think the videos on their own, your Honor, just we would be able to -- if the videos were admitted, and we showed those edits, I think it would be fair to argue that those were, in fact, the edits they're done at the time we have the e-mails, but I do think that his testimony regarding the fact that in addition, these are the exact types of edits that he directed to have happen at the defendant's direction should be admissible.
THE COURT: I know what you're arguing, but I just want to be careful about what I let the jury consider. That's all. So we can talk about it more once we have the testimony of the custodian.
MR. AGNIFILO: I think the cross-examination will be helpful. My opinion.
THE COURT: Good of you to say.
MR. AGNIFILO: Thank you, Judge.
THE COURT: Okay. So tell me about next week. I'm all ears.
MS. PENZA: Your Honor, we intend to disclose to the Court and defense counsel within 48 hours of our next witness being called.
THE COURT: How long will this witness be continuing to be on direct on Monday?
MR. LESKO: I would hope to be done by Monday. I'm about halfway done with my outline, but I believe the back half will move quicker. So I hope to be done by Monday afternoon. But the witness tends to give long answers. So I'll try to limit that.
THE COURT: You have some sway over answers. You can ask for yes-or-no questions. I know that sounds it's hard on direct.
MR. AGNIFILO: We would love to know who the next witness is. We don't know.
THE COURT: You don't know.
MR. AGNIFILO: We have no idea.
MS. PENZA: Your Honor, I believe that the cross-examination -- if Mr. Lesko's direct examination is going to go through Monday, I'm certain that Mr. Agnifilo's cross-examination will at least last until the end of the day on Monday.
MR. AGNIFILO: Okay.
THE COURT: What is 48 hours before Monday?
MS. PENZA: Saturday.
THE COURT: Yes.
MS. PENZA: Yes, your Honor. But I think we're talking Tuesday morning.
THE COURT: Tuesday morning.
MS. PENZA: Yes. I mean, we would let everyone know.
THE COURT: You have more than 15 minutes for this witness?
MR. AGNIFILO: I think so, yes. I have more than 15 minutes.
THE COURT: I think it'll go to -- let's be totally forthright about this. This witness will go to the end of Monday based on the fact that he'll go to midway through afternoon on Monday on direct wouldn't you think.
MR. AGNIFILO: I would imagine. What I interpreted Mr. Lesko to say is he might go all of Monday on direct.
MR. LESKO: It's possible.
THE COURT: Yes, but I'm trying to think in a positive way.
MR. AGNIFILO: I understand.
THE COURT: Not a negative way here. Do you understand?
MR. AGNIFILO: Yes. I wasn't factoring the Court's influence into that calculus.
THE COURT: I will give my best efforts here. So what we'll do is figure Tuesday morning. So Tuesday morning means Sunday.
MS. PENZA: Yes, your Honor.
THE COURT: Which means Sunday morning.
MS. PENZA: And we will let you and defense counsel know on Sunday morning.
THE COURT: They will provide us -- your next witness is as long as this witness.
MS. PENZA: I'm not entirely sure who we are going to call next. So we're going to make that determination. We'll make that determination before Sunday.
MR. AGNIFILO: She's got us.
THE COURT: Have a very nice weekend.
MR. AGNIFILO: You, too, your Honor.
MS. PENZA: Your Honor, if I may? Maybe we respond to defense counsel's Daubert motion by Monday morning.
THE COURT: Yes.
MS. PENZA: Thank you, your Honor.
THE COURT: All right. Thank you everyone.
MR. AGNIFILO: Have a nice weekend.
(WHEREUPON, this matter was adjourned to May 13, 2019, at 9:30 a.m.)
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