Buczek - Vol. II - FALSE ARREST

VOL.
II
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
-------------------------------------
UNITED STATES OF AMERICA,
-vs- 09-CR-121S
SHANE BUCZEK,
Defendant.
-------------------------------------
Proceedings held before the
Honorable William M. Skretny, Part IV,
U.S. Courthouse, 68 Court Street,
Buffalo, New York on March 3, 2010.
APPEARANCES:
MARY CATHERINE BAUMGARTEN,

Assistant United States Attorney,
Appearing for the United States.
SHANE BUCZEK,
Appearing Pro Se.
BRIAN COMERFORD,
Assistant Federal Public Defender,
Appearing as Standby Counsel for Defendant.
Michelle L. McLaughlin, RPR,

Official Reporter,
U.S.D.C. W.D.N.Y.
(716)332-3560
19
1 I N D E X
2 WITNESS PAGE
3 JAMES SAUER
Direct Examination by Ms. Baumgarten 36
4 Cross-Examination by Mr. Buczek 81
5 JOSEPH L. KELLY
Direct Examination by Ms. Baumgarten 85
6 Cross-Examination by Mr. Buczek 93
Redirect Examination by Ms. Baumgarten 114
7
ERIC J. SCHUMACKER
8 Direct Examination by Ms. Baumgarten 118
10
11
12 GOVERNMENT EXHIBITS EVD.
13 1 41
2 through 10 45
14
12 through 16, 27 through 29,
15 30, 40, 41 48
16 34, 35, 36 51
20, 20A, 21A, 21B, 24, 24A 66
17 21, 21A, 21B 68
15 71
18 15A, 25, 25A 73
31 75
19 22, 22A, 23, 23B 79
18 123
20
21
22
23
24
25
20
1 (Jury not present in the courtroom.)
2 THE CLERK: Criminal case 09-121S, United
3 States of America versus Shane Buczek.
4 THE COURT: Okay. The attorneys and
5 Mr. Buczek are here. We're ready to go forward. I
6 believe that the jury is here. I'll have them
7 called in in short order.
8 The government's ready to proceed?
9 MS. BAUMGARTEN: We are, your Honor.
10 THE COURT: All right. Mr. Buczek, you're
11 ready to go?
12 MR. BUCZEK: Judge, I do want to just make
13 a record today real briefly. Yesterday afternoon I
14 filed two documents, and I just want to put it on
15 the record -- I think I already know what you're
16 going to say -- but I just want to have it on the
17 record. I put a Notice of Mistake and Expression
18 of Trust in front of the Court filed March 2nd.
19 THE COURT: And a Notice of Conditional
20 Acceptance and Witness List for Shane C. Buczek.
21 MR. BUCZEK: Right. And I just wanted
22 this put on the record and just make sure that you
23 had an opportunity to review the documents, and --
24 not that it's an argument or anything. I believe
25 there's been no controversy, there's been a

21
1 mistake, and as you can see right there. I don't
2 want to waste too much of your time on that, and I
3 just --
4 THE COURT: Yeah, you know, they've been
5 reviewed. They're more redemption theory documents
6 in my view. Neither -- and from reviewing them,
7 neither requests any form of relief, so I'll note
8 that they were filed, they've been reviewed, and
9 we'll proceed on that basis.
10 MR. BUCZEK: And one last thing too is
11 that I need to know if everyone in this courtroom
12 is here in their public capacity or private
13 capacity as a living, breathing man or woman. I
14 know it's strange, but I just want to put it on the
15 record.
16 THE COURT: All right. It's noted for
17 the -- for the record. Thank you.
18 Darryl, would you bring the jury in please?
19 MR. BUCZEK: Judge, I didn't get an
20 answer.
21 THE COURT: That's your answer, it's noted
22 for the record.
23 MS. BAUMGARTEN: Judge, with respect to
24 the witnesses -- potential witnesses in the jury
25 area -- or in the gallery, the government moves to

22
1 sequester those, Judge.
2 THE COURT: You want to sequester all
3 those witnesses that are out in the gallery right
4 now?
5 MS. BAUMGARTEN: No, but we would like it
6 to be in effect in the future, Judge. I realize
7 there aren't any right now, except for the case
8 agent.
9 THE COURT: So you want them excluded?
10 MS. BAUMGARTEN: Please.
11 THE COURT: All right. If they are going
12 to be called on the direct case of the respective
13 parties, your case included.
14 MS. BAUMGARTEN: Yes, your Honor. I have
15 not received notification, even though there was
16 what was fashioned as a witness list, any witnesses
17 that would be called by the defense should they
18 choose to put a case on, your Honor.
19 THE COURT: Okay. My policy in all cases
20 is to grant the request for exclusion of witnesses
21 who will be called to testify on the direct case.
22 As to those witnesses that may, if you will,
23 straggle in, and then it becomes determined later
24 on that they're necessary for rebuttal purposes or
25 whatever, I will discuss whether or not to allow

23
1 those witnesses to testify at the appropriate time.
2 MS. BAUMGARTEN: Thank you, Judge.
3 THE COURT: Okay.
4 MR. COMERFORD: Judge, I should just
5 mention we're still working on who Mr. Buczek would
6 like to call as witnesses. His father, Dan Buczek,
7 who was in here yesterday, but we've discussed that
8 he shouldn't be in here if Mr. Buczek intends on
9 calling him as a witness, so he's aware of that.
10 THE COURT: Okay. Thank you,
11 Mr. Comerford. The record will so reflect that.
12 MR. BUCZEK: Judge, I do have
13 eyewitnesses, but I'm going to basically rest until
14 the government's done. And my opening statement.
15 THE COURT: Okay.
16 MR. BUCZEK: Thank you.
17 THE COURT: All right. You're welcome.
18 Darryl, the jury please.
19 COURT SECURITY OFFICER: They're on their
20 way.
21 THE COURT: Okay, good. Thank you.
22 (Jury seated.)
23 THE COURT: All right. Good afternoon,
24 ladies and gentlemen.
25 THE JURY: Good afternoon.

24
1 THE COURT: Not a bad job, start at
2 2:00 o'clock in the afternoon, work till
3 5:00 o'clock. Not too bad. Good to see everybody.
4 Keep in mind this is an important case, and we're
5 back on in the case of United States of America
6 versus Shane Buczek. And this is a criminal case.
7 You were sworn yesterday which was the official
8 commencement of the trial. You did hear the
9 opening statement of the prosecutor, Mary
10 Baumgarten. This is the resumption of the case,
11 and I mentioned to you that the defendant in the
12 case has the opportunity to make an opening
13 statement, and that can happen either at the outset
14 of the case or before the defense case, if there's
15 going to be one. But keep in mind some very
16 fundamental principles, and I think I mentioned I
17 would get to some preliminary instructions. I want
18 to get right on with the witnesses, but I think
19 it's important to at least warm you up, so to
20 speak, and get you ready for the full trial itself.
21 The defendant in a case doesn't have to do
22 anything, he didn't bring the case, he didn't bring
23 the action. He is the subject of an indictment,
24 and the burden is on the government to prove him
25 guilty of the charge in that indictment beyond a

25
1 reasonable doubt. The presumption of innocence
2 extends not only as Mr. Buczek sits there now, but
3 until any such time as he may be convicted. If he
4 is not, the presumption of innocence is the
5 controlling factor, and that's your determination
6 to make.
7 You are the determiner of the facts. You are
8 the judges of the fact. I'm the judge of the law,
9 and you have to, as part of your oath, resolve the
10 fact issues in this particular case. That's what
11 the case is all about. A dispute is brought to
12 this courtroom. The prosecution is presenting its
13 case to you first. That's the normal course, and
14 it has the sole burden of proof in this case beyond
15 a reasonable doubt on each essential element of the
16 crime charged.
17 I thought maybe I'd just direct your attention
18 once again to the elements of the offense. I note
19 that the government must prove each by the proof
20 standard of beyond a reasonable doubt. Your
21 verdict in this case is to be unanimous. And that
22 follows your deliberations, and what I've mentioned
23 to you yesterday is to keep your minds open, wait
24 until everything is in, everything is presented to
25 you. Don't prejudge the case. That would be

26
1 against the rules, and don't discuss this case with
2 anyone or amongst yourselves until you start
3 deliberations. But the three elements that are
4 required to prove criminal bank fraud, which is
5 what we're talking about, and that's, if you will,
6 the statute, the law is Title 18, Section 1344 and
7 the three elements are these. The government must
8 prove beyond a reasonable doubt first that there
9 was a scheme to obtain money or funds owned or
10 under the custody or control of a bank by means of
11 materially false or fraudulent pretenses,
12 representations, or promises as charged in the
13 indictment. And the indictment is specific in
14 terms of the allegations with respect to the
15 scheme. Second, the defendant executed or
16 attempted to execute the scheme with the intent to
17 defraud the bank. That's element number two,
18 criminal intent to defraud the bank. And third,
19 that at the time of the execution of the scheme the
20 back had its deposits insured by the Federal
21 Deposit Insurance Corporation. The government
22 satisfies you that each of those three elements,
23 every single one has been proven beyond a
24 reasonable doubt, then unanimously you should find
25 that the defendant is guilty. If, however, you are

27
1 not satisfied, unanimously you should decide that
2 the defendant is not guilty. Basic fundamentals of
3 the trial.
4 As you know this is part of the repetition, but
5 we'll get on with the proof in short order. You
6 have to make your determination though from the
7 evidence. And if you remember yesterday I told you
8 that there was different types of evidence or
9 different kinds of evidence. I'll talk to you a
10 little bit more about that in just a second. But
11 the evidence when presented to you is the basis
12 from which you can find what the facts are, and
13 that's what you did. You resolve the dispute as
14 far as the facts are concerned and the contentions
15 of the parties in this particular case. A not
16 guilty plea has been entered in this case, and
17 that's why you're here. The charge is the bank
18 fraud. The plea is not guilty. And you will have
19 to apply to the facts the law as I will give it to
20 you at the end of the trial or sometimes during the
21 course of the trial. And once you do that, that
22 will enable you to make the decision on what the
23 facts are and resolve the dispute between the
24 government and the defendant in this particular
25 case.
28
1 Keep in mind that what I do is my job as, you
2 know, your alternates by sports analogy, the
3 reserves, they're here to fill in just in case
4 they're needed. My job sports-wise is to be the
5 umpire, and what I try to do is provide you with
6 what the rules are, what the law is and try to keep
7 everything under control as far as the role of the
8 parties and to make sure there's as much order as I
9 can ensure so that your job of resolving the issues
10 is made as easy as possible.
11 What do you utilize in connection with making
12 the decision? Making it easy, I mean, we're all
13 randomly selected essentially to be here, and the
14 reason why I say that is because it's a question of
15 utilizing common sense, your experiences, and your
16 intelligence in resolving the fact issues by
17 applying the law to the evidence that you hear.
18 I'll tell you what's not evidence as well as ruling
19 in terms of is competent evidence. Competent
20 evidence is what you can consider. Things that are
21 not evidence, again, and anything I say, that's not
22 evidence. Anything the lawyers say, that's not
23 evidence, please don't take from whatever I say or
24 whatever questions I ask or whatever rulings I may
25 make I have a view one way or another on the case.

29
1 I really don't. I'm totally neutral. It's your
2 job to decide the case, not mine, and if you sense
3 I'm leaning in one direction or another, I'm not.
4 I don't know the evidence in this case. We are all
5 hearing and learning about the evidence for the
6 most part together.
7 Objections to questions are not evidence, the
8 questions themselves are not evidence. The answers
9 to the questions, that's what's evidence. When I
10 either sustain or overrule an objection, that's not
11 evidence. But when I sustain it, it means that you
12 are not to consider whatever it is that's the
13 subject of the question or the answer in the
14 discussion. If I overrule the objection, then it
15 is allowed in, then it becomes competent evidence,
16 should you choose to consider that to get to a
17 resolve of the fact issues.
18 Sometimes what I'm going to do is tell you a
19 couple things, one, disregard what you heard.
20 Well, you heard it, practically speaking you know
21 it's there, but what we can do is not consider it,
22 not factor it in. So please follow that
23 instruction. Sometimes I will tell you -- I don't
24 know if it will come up in this case -- but that
25 evidence is okay for you to consider should you

30
1 choose to do that but on a limited point, a limited
2 issue, and your job is to follow that instruction,
3 consider it as competent evidence, permissible
4 evidence for you to consider on a limited issue
5 that I instruct you about. That makes it fair.
6 Are there different kinds of evidence?
7 Certainly. Two kinds specifically though, direct
8 evidence and circumstantial evidence. Direct
9 evidence, again using common sense, intelligence,
10 experience. What does that really mean? It means
11 what somebody has heard, seen, is prepared to tell
12 you about, is in a position to know, and you get
13 that presented to you, that's direct evidence.
14 What's circumstantial evidence? It's the equal of
15 direct evidence, but it has a different definition.
16 It's evidence of a fact that is the result of an
17 inference that you are allowed to make from other
18 facts that you have heard about.
19 All right. Just by way of example, for the
20 most part pretty nice outside, right? But if you
21 saw within the next five minutes a CSO coming in
22 dripping wet, all disheveled, carrying an umbrella,
23 and you knew that he had just come from the
24 outside, circumstantially you know the weather
25 conditions must have changed. That's

31
1 circumstantial evidence, but the law allows you to
2 give it the equal weight of direct evidence.
3 I'm going to be giving you different
4 instructions on credibility of witnesses. As far
5 as direct evidence examination is concerned and
6 cross-examination is concerned, you should keep
7 those distinctions in mind only to the extent it
8 applies this way. Sometimes jurors try to figure
9 out is there a method to the madness that they
10 think I'm involved in. And what I'm really saying
11 is well, it looks like maybe a particular question
12 in the way that it's asked is sustained when one
13 attorney asks the question, and overruled when
14 there's an objection from another attorney when
15 another attorney asks the question. Well, it
16 depends sometimes on who's asking the question at
17 what part of the trial. In other words, is it
18 direct examination or cross-examination? Different
19 rules apply, so it requires a different ruling on
20 what might appear to be the same manner that was at
21 issue -- the same question that was at issue, so
22 don't try to figure it out. Just know that the end
23 result is if it's sustained, the objection to the
24 question and the answer has not been forthcoming,
25 or if you heard an answer, the objection means

32
1 don't consider it. If it's overruled, you're
2 allowed to consider it irrespective of whether it's
3 on cross-examination or direct examination.
4 As far as credibility of witnesses are
5 concerned, common sense, intelligence, experience.
6 You decide who's believable or not, in whole or in
7 part, or not at all. That's the deal. What do you
8 consider? You observe the witness, is he or she
9 nervous? Is he or she able to effectively and
10 clearly able to communicate? Is there a reluctance
11 to answer questions that one attorney may ask or
12 maybe Mr. Buczek may ask a question and there might
13 be a different kind of reaction. All those things
14 you can take into account in determining just as
15 you would in everyday life whether somebody is
16 being truthful or not. You can consider age and
17 appearance and the manner in which the witness is
18 conducting himself in the courtroom, on the witness
19 stand, and you can use as the backdrop whether you
20 feel or believe from the evidence and the
21 circumstances that you have observed and heard
22 whether that witness was in a position to observe
23 the facts that are involved with his or her
24 testimony in this particular case.
25 The presumption of innocence never leaves

33
1 Mr. Buczek until, if that occurs, you're satisfied
2 beyond a reasonable doubt that he should be
3 convicted of the charge. You know the charge bank
4 fraud. Please don't discuss this case with
5 anybody. And it's not going to be a particularly
6 long case, so those of you that like to talk, we
7 won't be holding you to that task for too long.
8 Make sure you don't do any independent
9 investigation. Stay away from the Internet. Don't
10 read the newspapers if there's anything about this
11 case. Avoid web sites, blogs, electronic tools
12 where you can get information about this case.
13 Once you retire the discussion begins amongst
14 yourselves, but not until then. Stay away from
15 things that are related to matters such as bank
16 fraud or anything else that you might hear about in
17 this case. They may not be specifically this case,
18 but there's always so much information out there,
19 if it's general subject matter variety, stay away
20 from it for the reason that you don't want to be
21 confused in terms of what you heard or seen in
22 these four walls versus what's on the outside,
23 because it's not permissible to consider what you
24 learned on the outside during the course of this
25 trial that's not presented to you as evidence.

34
1 So, that's pretty much the long and short of
2 where we're at. Government has the burden.
3 Defendant presumed innocent. Fundamentally basic
4 rules. You probably know them inside out all
5 ready. I won't take up anymore of your time.
6 We're very appreciative that you're with us. Thank
7 you. Very important matter to both sides, and
8 please take your obligation and in a continuing
9 fashion, very serious in this case. Okay. You've
10 been terrific. Thank you.
11 Miss Baumgarten, do you have a witness?
12 MS. BAUMGARTEN: We do, James Sauer.
13 THE COURT: Okay. Mr. Witness, good
14 afternoon how are you doing?
15 THE WITNESS: Good, thank you.
16 THE COURT: If you go right to the end of
17 the box. Right there. Don't go inside there.
18 J A M E S S A U E R, having been duly sworn as a
19 witness, testified as follows:
20 THE COURT: Okay. Mr. Witness, just make
21 yourself comfortable there, please. Keep the
22 microphone in front of you, not right at your face
23 but a comfortable distance. If you speak in a
24 conversational tone, it should pick you up. You
25 are here for purposes of presenting information and

35
1 answering questions to and for the ladies and
2 gentlemen of the jury.
3 THE WITNESS: Okay.
4 THE COURT: Couple of fundamental rules.
5 If you don't understand the question, just ask that
6 it be repeated. Don't answer a question that
7 you're uncertain about. If there's an objection to
8 a question, let me rule first.
10 THE COURT: And then what I'll do is I'll
11 tell you okay answer that question, complete your
12 answer, or wait for the next question.
14 THE COURT: Fair enough?
15 THE WITNESS: Yes, sir.
16 THE COURT: Okay. Be as responsive as
17 possible. Give, to the best of your ability, an
18 accurate answer, but don't volunteer information,
19 because it really is the job of the attorneys or
20 the questioner to ask you follow-up questions
21 because they have to ask the questions in a proper
22 form, and problems develop if you volunteer
23 information that may not be proper.
25 THE COURT: Do you understand those

36
1 instructions?
2 THE WITNESS: Yes.
3 THE COURT: Let's hear who you are.
4 THE WITNESS: Okay. My name is James
5 Sauer. I'm 21 years old, and I'm currently a
6 supervisor at Best Buy.
7 THE COURT: Okay. I'm going to ask you to
8 speak a little bit louder. Bring the microphone up
9 towards you a little bit. Slow down a little,
10 because Michelle, my court reporter, has to take
11 down everything you say precisely as you say it.
13 THE COURT: All right. Repeat your name
14 one more time. Doesn't sound like it's on, does
15 it.
16 THE WITNESS: My name is James Sauer.
17 THE COURT: There we go. Name?
18 THE WITNESS: James Sauer. I'm 21 years
19 old, and I'm a supervisor at Best Buy.
20 THE COURT: Still kind of fast, so -- now
21 you're on, Miss Baumgarten, because if anybody can
22 speak faster than you, it's Miss Baumgarten, so
23 we're going to slow both of you down. Go ahead.
24 DIRECT EXAMINATION BY MS. BAUMGARTEN:
25 Q. Which Best Buy location are you currently

37
1 employed at?
2 A. I work at the one in Hamburg. Best Buy 1131.
3 Q. Does each Best Buy lotion have it's own
4 particular number?
5 A. Yes, it does.
6 Q. All right. How long have you worked with Best
7 Buy?
8 A. Currently about three and a half years.
9 Q. Your current position there is what?
10 A. I'm the operation supervisor. I maintain and
11 supervise the customer service employees, as well
12 as the front checkout employees.
13 Q. Were you employed before you became a
14 supervisor?
15 A. Yes, I was.
16 Q. What did you do at Best Buy?
17 A. I was the operation supervisor. Basically the
18 same thing, maybe a little bit less responsibility.
19 But my overall goal was to supervise and help the
20 customer service employees as well as the cashiers.
21 Q. How long have you been employed with Best Buy?
22 A. Three and a half years.
23 Q. Has it always been at the Hamburg location?
24 A. Yes, it has.
25 Q. Is that at the McKinley Mall?

38
1 A. Yes.
2 Q. Are you familiar with the computerized
3 information and the documents that are prepared by
4 employees and others working at Best Buy?
5 A. Yes.
6 Q. Are you familiar with the credit application
7 process at Best Buy?
8 A. Yes, I am.
9 Q. And who provides the credit?
10 A. HSBC.
11 Q. All right. Have you actually completed credit
12 applications with consumers?
13 A. Yes, I have.
14 Q. All right. Have you also overseen or
15 supervised individuals who have completed those
16 sorts of credit applications?
17 A. Yes, all the time.
18 Q. Are you familiar with the procedures for the
19 selling of merchandise and services at Best Buy?
20 A. Yes.
21 Q. And that comes through the course of your
22 employment?
23 A. Correct.
24 Q. What is the arm of Best Buy or the part of Best
25 Buy that provides computer services?

39
1 A. The Geek Squad.
2 Q. All right.
3 THE COURT: The what, I'm sorry?
4 THE WITNESS: The Geek Squad. That's just
5 a name that they came up for.
6 THE COURT: The Geek Squad?
7 THE WITNESS: Correct.
8 MS. BAUMGARTEN: Your Honor, may I
9 approach the witness?
10 THE COURT: Has that been shown to the
11 defense?
12 MS. BAUMGARTEN: Yes. I was going to show
13 him what's been marked as Government Exhibit 1 for
14 identification.
15 THE COURT: Okay. And the ladies and
16 gentlemen should know that so that they will know
17 that this is not a surprise to anybody. All right.
18 Thank you.
19 BY MS. BAUMGARTEN:
20 Q. Mr. Sauer, I'm showing you what has been marked
21 as Government Exhibit 1. Are you familiar with
22 that document?
23 A. Yes, I am.
24 Q. What is it, please?
25 A. That's the credit card application that a

40
1 consumer would have to fill out in order to obtain
2 credit.
3 THE COURT: Slow down just a little bit
4 and I think we'll be okay.
7 Q. Who does that credit application relate to?
8 A. Shane Buczek.
9 Q. Is that a document that's prepared in the
10 ordinary course of the business of Best Buy?
11 A. That is correct.
12 Q. Is it prepared at or about the time the
13 information was in the document is actually
14 obtained?
15 A. I'm sorry, I don't understand.
16 Q. Is the -- what's been marked as Government
17 Exhibit 1, is that prepared at or about the time
18 the information is obtained for the credit
19 application?
20 A. Well, there's not an actual date on the
21 application, so I can't be 100 percent certain.
22 Q. Was it obtained at or about the time the
23 application was completed?
24 A. Oh, yes. Yes.
25 Q. Is it made by a person who has knowledge of the

41
1 information within the credit application?
3 Q. Is it maintained in the ordinary course of the
4 business of Best Buy?
5 A. Yes.
6 Q. Is it the regular practice of Best Buy to make
7 that sort of record?
8 A. Correct.
9 MS. BAUMGARTEN: The government moves
10 Exhibit 1 into evidence, your Honor.
11 THE COURT: 803(6)?
12 MS. BAUMGARTEN: Yes, your Honor, business
13 record.
14 MR. BUCZEK: Judge, I object to that.
15 THE COURT: Overruled. I'll permit it.
16 You may continue with testimony.
17 (Government's Exhibit 1 was received into
18 evidence.)
19 MS. BAUMGARTEN: Your Honor, may we place
20 the document on the screen so the jury may see it
21 as he testifies concerning it?
22 THE COURT: Yes.
24 Q. Who was the applicant for the credit that's
25 listed on what's been marked --

42
1 A. Shaken Buczek.
2 Q. Was identifying information obtained from the
3 defendant in preparing the credit application?
4 A. Yes.
5 Q. What information was obtained?
6 A. All the personal information, as well as a
7 license, and another form of credit or debit card.
8 Q. Was a Social Security number obtained from the
9 defendant?
10 A. Yes.
11 Q. And what was that Social Security number?
12 A. 131-08-5635.
13 Q. What information actually was obtained as the
14 identifying information, what part of what's been
15 marked Government Exhibit 1?
16 A. Well, like I said, all his personal information
17 which would also be on the license that you have to
18 obtain when filling out the credit card application
19 which is listed at the bottom of the credit card
20 application.
21 Q. Was the defendant approved for credit?
22 A. Yes, he was.
23 Q. In what amount?
24 A. $3,300.
25 MS. BAUMGARTEN: Your Honor, I'm showing

43
1 the witness what has been marked as Government
2 Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10. Those
3 were previously provided to the defense, your
4 Honor.
5 THE COURT: Okay. For identification you
6 may.
7 MS. BAUMGARTEN: Yes, your Honor. May I
8 approach?
9 THE COURT: Yes.
11 Q. Mr. Sauer, I'm showing you what has been marked
12 Government Exhibits 2 through 10. Would you take a
13 moment and look at those documents? Do you
14 recognize those?
15 A. Yes.
16 Q. What are they, please?
17 A. They are the credit card statements which the
18 customer would receive after purchasing something
19 on the Best Buy credit card.
20 Q. Who do those Exhibits 2 through 10 relate to?
21 A. Under Shane Buczek.
22 Q. Are those records made by a person at Best Buy
23 with knowledge of the information within those
24 records?
25 A. Correct.
44
1 Q. Are they made at or about the time the
2 information of the events within those records
3 occurred?
4 A. That's correct.
5 Q. Is it the regular practice of Best Buy and
6 their employees to make that sort of record?
7 A. Well, when they buy something it would then get
8 sent to HSBC who actually provides these.
9 Q. Are those records kept in the ordinary course
10 of the business of Best Buy?
11 A. Yes.
12 MS. BAUMGARTEN: Your Honor, the
13 government moves into evidence Exhibits 2 through
14 10.
15 MR. BUCZEK: And I object again, Judge.
16 MS. BAUMGARTEN: They're business records
17 exception, your Honor.
18 MR. BUCZEK: They're hearsay information,
19 Judge. Copies are hearsay.
20 THE COURT: Business records are exception
21 to the hearsay rule. Permitted under Rule 803(6).
22 Objection overruled.
23 MR. BUCZEK: Okay. But I just want to
24 make a record.
25 THE COURT: Certainly.

45
1 (Government Exhibits 2 through 10 were
2 received into evidence.)
3 MS. BAUMGARTEN: Your Honor, may we place
4 them -- at least Exhibit 2?
5 THE COURT: Yes.
7 Q. Specifically noting what's been marked as
8 Government's Exhibit 2 in evidence, do those
9 reflect activity on the defendant's credit card
10 account, Mr. Sauer.
11 A. Yes. That's correct.
12 Q. What sorts of information is included within
13 Exhibit 2?
14 A. It would give the date that something was
15 purchased, along with the amount, and a generalized
16 category of what the customer had purchased.
17 Q. Does it reflect the use of the defendant's
18 credit card by the defendant?
20 Q. All right.
21 MS. BAUMGARTEN: Your Honor, I will be
22 showing the witness what has been marked as
23 Government Exhibits 12, 13, 14, 15, 16, 26, 27, 28,
24 29, 30, 40, and 41, all of which have been marked
25 for identification and were provided to the

46
1 defense.
2 THE COURT: Okay.
3 MS. BAUMGARTEN: May I approach, your
4 Honor?
5 THE COURT: You may.
6 MS. BAUMGARTEN: Mr. Sauer, would you
7 please review those documents and let me know when
8 you've had a chance to.
10 MS. BAUMGARTEN: Your Honor, is it
11 possible that we can turn that screen on also?
12 Could we tilt it towards the jury.
13 THE COURT: Gerry, could you just turn
14 that around.
15 MS. BAUMGARTEN: I'm trying to make sure
16 that they have the best view. Thank you, your
17 Honor.
19 Q. Do you recognize the documents that are in
20 Exhibits 12 through 16, 26 through 30, and 40 and
21 41?
22 A. Yes, I do.
23 Q. What are they?
24 A. They are all receipts from Best Buy.
25 Q. Who do they relate to, or what account?

47
1 A. They all look to account to Shane Buczek.
2 Q. Are those records made by a person with
3 knowledge of the information, the actions, and the
4 events within those documents?
5 A. Correct.
6 Q. Are they made at or about the time the acts and
7 events appearing in the record actually occurred?
9 Q. Is it the regular Best Buy of to make that sort
10 of document?
11 A. Yes.
12 Q. Are those records kept in the ordinary course
13 of business of Best Buy?
14 A. Well, they're not kept on paper receipts on
15 file. But we can look them up at any time.
16 Q. Are they maintained in the computer system in
17 the ordinary course of business of Best Buy?
19 MS. BAUMGARTEN: The government moves into
20 evidence what have been marked as Government
21 Exhibits 12 through 16, 27 through 29, 30, 40 and
22 41 under 803(6), your Honor, business records
23 exception.
24 MR. BUCZEK: And again, Judge, I object.
25 Hearsay information is copies. A little child can

48
1 make copies and put things on the screen, objection
2 noted.
3 THE COURT: If the objection is hearsay,
4 overruled.
5 MR. BUCZEK: Okay. Thank you.
6 THE COURT: I'm sorry?
7 MR. BUCZEK: I just want --
9 THE CLERK: They are entered then?
10 THE COURT: They are admitted over
11 objection, yes.
12 (Government's Exhibit 12 through 16, 27
13 through 29, 30, 40 and 41 were received
14 into evidence.)
15 MS. BAUMGARTEN: Your Honor, I'm going to
16 show the witness what has been marked for
17 identification as Exhibits 34, 35, and 36. Those
18 previously were provided to the defense.
19 May I approach?
20 THE COURT: Yes.
22 Q. Mr. Sauer, I'm showing you Government's
23 Exhibits 34, 35, 36 for identification. Would you
24 review those, please?
25 A. Okay.
49
1 Q. Are you familiar with those documents?
2 A. Yes.
3 Q. Do you recognize them?
4 A. Yes.
5 Q. What are they, please?
6 A. They contain a receipt from some kind of
7 purchase that was through the Geek Squad for some
8 kind of servicing on a computer.
9 Q. Who do they relate to?
10 A. Shane Buczek.
11 MR. BUCZEK: Judge -- objection, Judge.
12 THE COURT: Grounds?
13 MR. BUCZEK: Grounds that he doesn't have
14 firsthand knowledge of who Shane Buczek really is,
15 and again, we're still dealing with copies.
16 They're not originals, and there's no eyewitnesses
17 to testify to the testimony of the eyewitness.
18 Thank you.
19 THE COURT: All right. Miss Baumgarten?
20 MS. BAUMGARTEN: Your Honor, they actually
21 are originals. It is my understanding those are
22 the original Geek Squad packets that have been
23 marked as Government Exhibits 34, 35, 36.
24 THE COURT: If there's an issue with
25 respect to whether they're copies or originals, you

50
1 may cross-examine on this, Mr. Buczek.
2 MR. BUCZEK: I just want to object, that's
3 all.
4 THE COURT: Okay. Objection's noted.
5 Overruled. And you may proceed.
7 Q. Are those records made by individuals at Best
8 Buy with knowledge of the information, events, and
9 other occurrences within the documents?
10 A. Yes.
11 Q. Are those records made at or about the time of
12 the events and the services provided within those
13 exhibits?
16 those sorts of documents in the course of its
17 business?
18 A. Yes.
19 Q. Is it also the ordinary course of the business
20 of Best Buy to maintain such records?
21 A. Correct.
22 MS. BAUMGARTEN: The government offers in
23 what's been marked as Government's Exhibits 34, 35,
24 and 36, into evidence as a business records
25 exception.
51
1 THE COURT: Okay. Mr. Buczek, same
2 objection.
3 MR. BUCZEK: Oh, yes, Judge. I mean these
4 are all copies. A ten-year-old can run up to a
5 copy machine and print this and put it on there. I
6 object.
7 THE COURT: All right. The objection will
8 be overruled, same grounds, same reasons. You may
9 proceed.
10 (Government's Exhibit 34, 35, and 36 were
13 Q. Mr. Sauer, I would like you to look at what has
14 been marked as Exhibit 36, the fourth page within
15 that, in particular a receipt dated
16 September 18, 2008.
17 A. Okay.
18 Q. Do you have that document in front of you?
19 A. Yes.
20 Q. Okay. Would you please -- actually, what is
21 that receipt? What sort of services were
22 performed?
23 A. Well, it was purchase of two pieces of memory
24 for a computer, the installation of the memory, and
25 a diagnostic and repair and protect. Basically if

52
1 something was wrong with the computer, you could
2 bring it in and they will see what's wrong with it,
3 fix it, give it back in working condition.
4 Q. What was the total amount charged for the
5 services performed by the Geek Squad?
6 A. After tax it was $430.61.
7 Q. How was that paid for?
8 A. On the Best Buy credit card.
9 Q. For whom?
10 A. It was -- this one was a temporary card, which
11 means they had to look it up using the customer's
12 ID and Social Security number, but there's no
13 physical name on the receipt.
14 Q. All right. Would you please look at what has
15 been marked as Government's Exhibit 2. Do you
16 still have that exhibit?
17 A. I don't think I have that.
19 approach?
20 THE COURT: You may approach.
22 Q. I'm handing, Mr. Sauer, what has been marked as
23 Government Exhibit 2. Would you look at an entry
24 on Government's Exhibit 2 that is dated
25 September 18, 2008. Is there one on that

53
1 particular exhibit?
2 A. Yes, there is.
3 Q. And that relates to which credit card?
4 A. The credit card belonging to Shane Buczek.
5 Q. What is the entry on the September 18?
6 A. 9/18/2008 the transaction is under computers
7 for detail and the amount was $430.61.
8 Q. I'd ask you to look at what is page 2 marked as
9 Government's Exhibit 36. What is that document?
10 A. That is a similar receipt with Geek Squad
11 services on it.
12 Q. What is the dollar amount of that?
13 A. $32.61.
14 Q. What services were performed?
15 A. It was an optimization, which means they would
16 take your computer and clean it up a little bit and
17 get rid of all the free stuff that's on it so it
18 runs more fast.
19 Q. Who was that paid for?
20 A. That was also on the temporary Best Buy card.
21 Q. Would you please refer to Government's
22 Exhibit 2, the entry that's on September 22, 2008.
23 A. It's the same -- it's for computers and on the
24 statement it shows that it's $32.61.
25 Q. Would you please refer to what has been marked

54
1 as Government Exhibit 34 page 5, in particular an
2 entry September 27, 2008.
3 A. Okay.
4 Q. What is that document?
5 A. It is a receipt for a purchase of a GPS unit
6 and a car power inverter.
7 Q. What is the dollar amount of that purchase?
8 A. It is $417.58.
10 A. Also on the Best Buy card.
11 Q. Would you refer to what has been marked as
12 Government Exhibit 2, an entry on
13 September 27, 2008.
14 A. That is correct. It's for mobile audio for
15 $417.58, the same as the receipt.
16 Q. All right. Would you please refer to what has
17 been marked as Government Exhibit 26.
18 (Courtroom technology problems.)
19 THE COURT: Where is the Geek Squad when
20 we need it?
21 All right. Ladies and gentlemen, this is not
22 evidence. You are not to consider what's going on
23 right now. Okay.
25 Q. I think I left off asking you to refer to what

55
1 had been marked Government Exhibit 2, in particular
2 an entry with respect to September 27, 2008.
3 A. I think we were on the next one.
4 THE COURT: You have to keep your voice
5 up, please.
8 Q. All right. Would you just --
9 A. For September 27th, it was a mobile audio
10 purchase, and that was in the amount of $417.58.
11 THE COURT: Okay. Hold on a second.
12 (Courtroom technology problems.)
13 THE COURT: All right. Let's try again
14 please.
16 Q. All right. The September 27, 2008, entry on
17 what's been marked Government Exhibit 2 in
18 evidence, what was the amount on that please?
19 A. It was for $417.58.
20 THE COURT: All right. Let's do this.
21 Mr. Sauer, when you testify about a particular
22 entry, touch your screen, the computer screen, and
23 an arrow should pop up. Lets see if that will
24 work. Or circle it, whichever -- Okay. All right.
25 That will help focus the jury I think. As long as

56
1 you don't put the arrow over the numbers.
2 THE WITNESS: I'll try not to.
3 THE COURT: All right, Miss Baumgarten,
4 let's go forward here please.
6 Q. If I may refer your attention to what has been
7 marked Government Exhibit 26.
8 A. Okay.
9 Q. What is that document?
10 A. It is a receipt for memory for a computer and
11 the installation for it by the Geek Squad.
12 Q. On whose account?
13 A. Under Shane Buczek.
14 Q. The dollar amount of the purchase on
15 September 30, 2008, please?
16 A. $173.97.
17 Q. How is that purchase paid for?
19 Q. If you would refer to what has been marked as
20 Government Exhibit 2, is there an entry
21 corresponding to that purchase on
22 September 30, 2008?
23 A. Yes.
24 Q. Would you indicate that for the jury? And
25 that's in the amount of?

57
1 A. $173.97.
2 Q. If you would, please, refer to what has been
3 marked as Government Exhibit 35, dated
4 October 3, 2008.
5 A. Okay.
6 Q. Is there a receipt dated October 3, 2008?
7 A. Yes, there is.
8 Q. What is that for?
9 A. That is for another diagnostic on a computer.
11 A. $76.11.
12 Q. How is that purchase paid for?
14 Q. For whom?
15 A. Shane Buczek.
17 Government Exhibit 2? Is there an entry on the
18 that exhibit concerning the October 3, 2008,
19 purchase?
20 A. Yes, there is.
21 Q. Would you indicate that for the jury? And
22 that's the same amount?
23 A. Correct.
25 as Government Exhibit 12.

58
1 A. Okay.
2 Q. What is that document, please?
3 A. It is a receipt for -- looks like an iPod,
4 headphones, and the warranty on the iPod.
5 Q. When was that purchase made?
6 A. This was on 10/7 of '08.
7 Q. What was the dollar amount of that purchase?
8 A. It was for $208.77.
10 A. On the Best Buy credit card for Shane Buczek.
12 Government Exhibit 2. Is there an entry on that
13 exhibit that corresponds to the October 3, 2008,
14 purchase?
15 A. There is.
16 Q. Would you indicate that on the screen for the
17 jury, please?
18 A. It's already circled from the last one. That's
19 where it is.
20 Q. I'm sorry, I repeated myself. I should have
21 asked you if you would refer to what has been
22 marked as Government Exhibit 2 for the purchase
23 dated October 7, 2008.
24 A. Correct. It's still circled from the last
25 time. That's the purchase right there.

59
1 Q. The $208.77?
2 A. Correct.
4 as Government Exhibit 27. What is that please?
5 A. It is a receipt for purchase of a camera, the
6 warranty, and some accessories.
8 A. $296.83.
9 Q. Who made that purchase?
10 A. It was on the Best Buy credit card of Shane
11 Buczek.
13 Government Exhibit 2. Is there a corresponding
14 entry on that exhibit?
15 A. There is.
16 Q. Would you indicate that for the jury, please?
17 Would you refer to what has been marked as
18 Government Exhibit 40?
19 A. Okay.
20 Q. What is that, please?
21 A. It is a receipt for -- what looks to be some
22 kind of accessory for an iPod.
23 Q. What is the date of that receipt?
24 A. October 10th, 2008.
25 Q. The amount that was purchased on that date?

60
1 A. $32.61.
2 Q. How was that purchase paid for?
3 A. On the Best Buy credit card of Shane Buczek.
4 MR. BUCZEK: Objection, Judge.
6 MR. BUCZEK: Hearsay information. Does he
7 know who Shane Buczek is? Is there --
8 THE COURT: Wait.
9 MR. BUCZEK: -- is there any eyewitnesses
10 to testify to the statement?
11 THE COURT: You're going to have the
12 opportunity to cross-examine, and you'll wait until
13 then.
14 MR. BUCZEK: Sure.
15 THE COURT: All right. You may proceed.
18 Exhibit 3, and it's previously in evidence, and
19 it's been provided to the defense.
20 THE COURT: Okay.
21 MS. BAUMGARTEN: May I approach?
22 THE COURT: Three received into evidence?
23 MS. BAUMGARTEN: Yes, it is.
24 THE COURT: You may show the witness.
25 MS. BAUMGARTEN: I'm providing the witness

61
1 Government Exhibit 3. Is there an entry
2 corresponding with the purchase on October 10 on
3 Exhibit 3?
4 THE WITNESS: Yes, there is.
6 Q. What was the corresponding amount on that
7 exhibit?
8 A. $32.61.
9 Q. Would you indicate that for the jury? Would
10 you please look at what has been marked as
11 Government Exhibit 13.
12 A. Okay.
13 Q. What is that?
14 A. It is a purchase that was made for a bunch of
15 home theater accessories, a television delivery,
16 installation, the warranty on the television, and a
17 bunch of other accessories.
18 Q. Would you actually look at also what has been
19 marked as Government Exhibit 28. What is that
20 exhibit?
21 A. It's the same thing, for the TV and the
22 accessories and everything, the total of the
23 purchase was $3,382.35.
24 Q. How was that charge paid for?

62
1 Q. For whom?
2 A. Shane Buczek.
3 Q. What was the date of that purchase?
4 A. That was November 15th of 2008.
7 Exhibit 4 in evidence. May I approach, Judge?
10 Q. In reviewing Government Exhibit 4, is there a
11 corresponding entry on that exhibit for the
12 purchase you just discussed?
14 Q. Would you indicate that for the jury please?
15 During the course of your employment with Best
16 Buy, are you familiar with the types of electronic
17 equipment and otherwise that Best Buy sells?
18 A. Pretty familiar.
19 Q. Are you familiar not only by looking at it, but
20 and also by reviewing the serial numbers?
21 A. The model numbers, yes.
22 Q. Where would those model numbers be found on the
23 equipment?
24 A. Usually right on the back or the underside of
25 the equipment.
63
1 Q. Have you had an opportunity to review the model
2 numbers on the purchases that you've testified to
3 this afternoon?
4 A. Yes.
6 the witness what has been marked for identification
7 as Government's Exhibits 19, 20, 20A, 20B, 21, 21A,
8 B, C, 24, and 24A. Those were previously provided
9 to the defense, your Honor. May I approach?
12 Q. Mr. Sauer, would you review those exhibits and
13 let me know when you're finished.
14 A. Okay.
15 Q. What are those exhibits?
16 A. They are all pictures of different products
17 that we carry.
18 Q. Do those pictures accurately depict the
19 products that Best Buy sells?
20 A. Some of them, yes, because by the model
21 numbers. Some of them -- I mean, we do carry some
22 of them. Can't really determine if it's from Best
23 Buy or not.
24 Q. Have you had an opportunity to review the
25 receipts that we've discussed during your testimony

64
1 earlier this afternoon?
2 A. Yes.
3 Q. And have those receipts included model numbers
4 for the items purchased?
5 A. Yes, they do.
6 Q. Have you had an opportunity to review those
7 exhibit -- those photographs there and compare them
8 to the receipts?
10 Q. All right. Do the photographs accurately
11 depict the merchandise that was purchased in those
12 receipts?
13 A. Like I stated, some do, and some you really
14 couldn't tell by just looking at it. You couldn't
15 be 100 percent by looking at them.
16 THE COURT: You couldn't be what?
17 THE WITNESS: One hundred percent certain
18 on some of them, because some of them don't have
19 the models on the front of the picture, so --
20 they're stuff that we are carry, but you can't
21 necessarily say they were from us 100 percent.
23 Q. Can you identify from those exhibits which you
24 can tell accurately depict the products that were
25 purchased in the receipts?

65
1 A. Yes. I would say 20 and 20A, 21A and 21B, and
2 24 and 24A.
4 approach?
7 Q. Mr. Sauer, what is depicted in Exhibits 20 and
8 20A?
9 A. It looks to be the 52-inch Samsung television.
10 I can definitely tell by 20A because the model
11 numbers are the same that are on the picture as
12 well as the receipt.
13 Q. When you say the receipt, you say that which
14 has been marked Government's Exhibit 20A?
15 A. Correct.
16 Q. All right. I'm showing the witness what has
17 been marked as 21 and 21A, and 21B. What do those
18 photographs depict?
19 A. It looks like it's a Yamaha receiver that would
20 be used for surround sound. As well again, on 28,
21 Exhibit 28, the model numbers match up from the
22 picture on 21B to Exhibit 28.
23 Q. I'm showing the witness what's been marked as
24 Government Exhibit 24 and 24A. What do these
25 photographs depict?
66
1 A. That is a blu-ray player that was purchased on
2 Exhibit 28. And I know that by Exhibit 24A, the
3 model numbers are identical.
4 Q. So those photographs accurately depict at least
5 some of the merchandise that was purchased by the
6 defendant as what's reflected on Government
7 Exhibit 28?
10 evidence what has been marked as Exhibits 20, 20A,
11 21A and B, 24, and 24A, your Honor.
12 THE COURT: No objection. The exhibits
13 will be received.
14 (Government's Exhibit 20, 20A, 21A, 21B,
15 24, 24A were received into evidence.)
16 MR. BUCZEK: Judge, I do object. You told
17 me to wait till later.
18 THE COURT: No. I said that you can
19 cross-examine with respect to identity later.
20 MR. BUCZEK: I object to all of these.
21 This is just, you know -- I object to everything.
22 THE COURT: Okay. At least in this
23 courtroom, Mr. Buczek, there's not a standing
24 objection, so --

67
1 THE COURT: -- I'll note your objection.
2 I will give you the opportunity to cross-examine.
4 THE COURT: Objection overruled.
5 Admission permitted. And you may continue.
6 THE CLERK: May I clarify 20, 20A?
7 MS. BAUMGARTEN: Yes.
8 THE CLERK: 21A?
10 THE CLERK: 24 and 24A?
11 MS. BAUMGARTEN: Yes. Your Honor, I
12 neglected to say 21B as in boy.
13 THE COURT: What about 21C?
14 MS. BAUMGARTEN: That was not one that the
15 witness testified regarding, your Honor.
16 THE COURT: Okay. So A and boy?
18 THE COURT: All right. They will be
19 received.
20 MS. BAUMGARTEN: Your Honor, there is
21 actually a 21, a 21A, and a 21B.
22 THE CLERK: Twenty-one wasn't offered.
23 MS. BAUMGARTEN: Your Honor, the
24 Government is offering also Exhibit 21.
25 THE COURT: Okay. Those three 21

68
1 exhibits, they are all part of group -- they're not
2 group exhibits. They are individually marked.
3 Exhibits will be received as 21, 21A and 21B over
4 objection.
5 (Government's Exhibit 21, 21A, 21B were
8 Q. If you would please look at the exhibit that
9 has been marked as Government's Exhibit 14.
10 A. Okay.
11 Q. Do you have that one, Mr. Sauer?
12 A. Yes.
13 Q. All right. What is that exhibit please?
14 A. It looks to be a receipt for a bluetooth
15 headset and the installation of that headset.
16 Q. What is the date of that purchase?
17 A. November 21st, 2008.
19 A. $97.86.
21 A. On the Best Buy credit card of Shane Buczek.
23 as Government's Exhibit 4. Is there a
24 corresponding entry on Exhibit 4 for the
25 November 21, 2008, purchase?

69
1 A. Yes, there is.
2 Q. Would you please indicate that for the jury?
3 Would you please refer to what has been marked as
5 A. Okay.
6 Q. What is that exhibit?
7 A. It is a receipt for two blu-ray movies and some
8 kind of stereo boombox.
9 THE COURT: I don't believe 15 has been
10 identified and received. Fourteen has been. I
11 think you asked about 15, Miss Baumgarten.
12 MS. BAUMGARTEN: Your Honor, I intended to
13 move what been marked as Government's Exhibit 15 in
14 with Exhibits 12 through -- I said 12 through 16.
15 I should probably have identified each of them. I
16 had them noted as in, your Honor, but I'll go back
17 through if you wish.
18 THE COURT: Well, we're at 15. I don't
19 think there's a problem with 14, 13 or 12.
20 THE CLERK: I only had 12, 13, 14, 16.
21 THE COURT: And 15 was left out. Maybe it
22 was --
23 MS. BAUMGARTEN: Inadvertent on my part.
24 THE COURT: -- inadvertent. So we're
25 proceeding with 15 right now. It's been identified

70
1 not received.
3 approach the witness?
5 MS. BAUMGARTEN: I'm showing the witness
6 what has been marked as Government Exhibit 15 that
7 previously was provided to the defense.
9 Q. Mr. Sauer, are you familiar with what has been
10 marked as Government Exhibit 15?
11 A. Yes.
12 Q. What is that, please?
13 A. That is two blu-ray movies and a stereo
14 boombox.
15 Q. What type of document is it?
16 A. It's a receipt.
17 Q. All right. And the date of that receipt is?
18 A. November 21st, 2008.
19 Q. Is that a record made by a person with
20 knowledge of the information and the acts and the
21 events within the receipt?
22 A. Correct.
23 Q. Is that made at or about the time the purchase
24 occurred as reflected in that receipt?
25 A. Correct.
71
2 that sort of receipt?
3 A. Yes.
4 Q. Is that record kept in the ordinary course of
5 the business of Best Buy?
6 A. Yes.
7 MS. BAUMGARTEN: The government moves what
8 has been marked as Government's Exhibit 15 for
9 identification into evidence. It's a business
10 records exception, your Honor, under Rule 803.
11 THE COURT: All right. I will receive
12 pursuant to that rule Exhibit number 15.
14 evidence.)
16 Q. Referring to Government's Exhibit 15,
17 Mr. Sauer, that reflects a purchase on what date?
18 A. On November 21st, 2008.
19 Q. And what was it for?
20 A. Two blu-ray movies and a stereo boombox.
22 A. $217.47.
25 Q. Would you refer to what has been marked

72
1 Government Exhibit 4. Is there a corresponding
2 entry on that exhibit?
3 A. Yes, there is.
5 A. It's still circled from the last time, but
6 that's the same.
7 MS. BAUMGARTEN: I'm showing the witness
8 what has been marked as Government's Exhibits 25
9 and 25A. Those previously were provided to the
10 defense, your Honor.
11 THE COURT: All right, Miss Baumgarten,
12 you may approach.
13 THE CLERK: For identification?
16 Q. Mr. Sauer what are those exhibits?
17 A. They are pictures of a Sony stereo boombox.
18 Q. Do those photographs accurately reflect the
19 boombox that's reflected on the receipt marked as
20 Government's Exhibit 15 in evidence?
21 A. Correct.
22 Q. All right. So those are actually the items
23 that were purchased by the defendant on
24 November 21, 2008?
25 A. Well, there is no model to -- no model number

73
1 to attach it to, but from the looks of it, it's a
2 Sony boombox with a tape player, and that is what's
3 on Government Exhibit 15 as well.
5 evidence what has been marked as Exhibits 15 and
6 15A, your Honor, 25 and 25A, your Honor.
7 THE COURT: All four?
8 MS. BAUMGARTEN: Yes, your Honor.
9 MR. BUCZEK: And I object, Judge.
10 MS. BAUMGARTEN: I think 15 was in
11 previously.
12 THE COURT: Yes. Okay. Fifteen and
13 15A --
14 MS. BAUMGARTEN: Fifteen was already in.
15 25 and 25A, which were marked for identification,
16 we move into evidence.
17 THE COURT: All right. All three will be
18 received over objection.
19 (Government's Exhibit 15A, 25 and 25A were
21 MS. BAUMGARTEN: If you would please look
22 at what has been marked as Government Exhibit 31
23 dated November 22, 2008. That's in evidence.
24 THE CLERK: Thirty-one is --
25 MS. BAUMGARTEN: Your Honor, I stand

74
1 corrected. May I have a moment, please?
4 Q. Mr. Sauer, would you look at what has been
5 marked as Government Exhibit 31? What is that,
6 please?
7 A. It is a Geek Squad installation receipt,
8 something that a customer would receive in the home
9 when they were getting installation done on what
10 they previously paid for. Maybe they needed
11 something extra that they would have to pay for in
12 the home.
13 Q. Is that a document that's prepared in the
14 ordinary course of the business of Best Buy?
15 A. Yes.
16 Q. Is it prepared by a person who has knowledge of
17 the information and the events that were occurring
18 in that record?
20 Q. Is it made at or about the time the purchase is
21 actually occurring?
22 A. Yes.
24 such a record?
25 A. Correct.
75
1 Q. Is it also the practice of Best Buy in the
2 usual course of its business to maintain that sort
3 of record?
4 A. Correct.
6 evidence what has been marked as Government's
7 Exhibit 31. Your honor, it's a business records
8 exception.
9 THE COURT: All right. I'll receive
10 Government Exhibit 31 into evidence.
11 MR. BUCZEK: I object.
12 THE COURT: Objection heard. Subject to
13 objection.
15 evidence.)
17 Q. Mr. Sauer, what was the amount of that
18 purchase?
19 A. It was for $119.63.
21 A. Actually on here it doesn't show what kind of
22 payment it was with.
23 Q. Would you look at --
24 THE COURT: Do you want this published?
76
1 Q. Yes.
2 THE COURT: All right, Miss Labuzzetta.
3 All right. Is it on your screen, ladies and
4 gentlemen?
5 THE JURY: Yes.
7 Q. Would you look at what has been marked as
8 Government Exhibit 4 in evidence. Is there a
9 corresponding charge for November 22, 2008, for
10 that purchase?
11 A. There is.
12 Q. Would you please indicate that for the jury.
13 Would you refer to what has been marked as
15 THE COURT: Received into evidence or not?
16 MS. BAUMGARTEN: I have it marked as in
17 evidence.
18 THE COURT: If it is, when you do the
19 reference --
21 THE COURT: -- key the witness to whether
22 it's received in evidence, and it helps our record
23 out.
24 MS. BAUMGARTEN: Thank you, Judge.
25 Received into evidence.

77
3 Q. What is that document please?
4 A. It is a receipt for purchase of a washer and
5 dryer and accessories that go along with that.
6 Q. What is the dollar amount of the purchase?
7 A. $2,882.46.
8 Q. How is that paid for?
10 Q. For whom?
11 A. Shane Buczek.
12 Q. Would you refer to Government Exhibit 4 in
13 evidence. Is there a corresponding charge?
16 What type of washer and dryer was purchased on
17 November 23, 2008, by the defendant?
18 A. They were Samsung.
20 the witness what has been marked as Government's
21 Exhibits 22, 22A, 23, and 23A for identification.
22 They previously have been provided to the defense.
24 Q. Mr. Sauer, would you review these documents and
25 let me know when you're done?

78
1 A. Okay.
2 Q. What are those?
3 A. They're pictures of the Samsung washer and
4 dryer.
5 Q. Have you had an opportunity to compare the
6 photographs in those marked for identification with
7 the receipts that are already received in evidence
8 in particular Exhibit 16?
9 A. Yes.
10 Q. Are the photographs in those Exhibits, 22, 22A,
11 23, and 23B of the items purchased --
13 Q. Does it accurately reflect those items?
14 A. Yes, the model numbers from the picture
15 exhibits match up with Exhibit 16.
17 evidence what's been marked as Government's
18 Exhibits 22, 22A, 23, and 23B.
19 THE COURT: Any objection, Mr. Buczek?
20 MR. BUCZEK: Yes, Judge, I object.
21 THE COURT: Same objection.
22 MR. BUCZEK: And pursuant to the best
23 evidence rule I believe it's called. I'm sure
24 you're aware of that. Has to be original, has to
25 have eyewitnesses, all that. I object.

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1 THE COURT: All right. I'll permit it as
2 a business record over best evidence objection.
3 (Government's Exhibit 22, 22A, 23, 23B
4 were received into evidence.)
7 as Government's Exhibit 41?
8 My records reflect that it is in evidence, your
9 Honor.
10 Are you familiar with that document?
11 A. Yes.
12 Q. What is it please?
13 A. It is a receipt for a 26-inch television.
14 Q. Is it a purchase receipt?
15 A. Yes.
16 Q. What is the date of that purchase?
17 A. November 26th, 2008.
19 A. Most of it was paid on the Best Buy credit card
20 and a little bit of cash.
21 Q. All right. What was -- the actual amount was
22 how much?
23 A. After tax was $380.61. $373 even was put on
24 the Best Buy credit card.
25 Q. Would you refer to what is in evidence marked

80
1 as Government's Exhibit 4, is there a corresponding
2 charge on November 26th, 2008, for that purchase?
5 Referring to, once again, Government's Exhibit 4 in
6 evidence, is there another -- is there an entry on
7 November 28, 2008, for a purchase?
8 A. Yes.
9 Q. What is that entry?
10 A. It was a Bestbuy.com purchase for $29.88.
13 Q. In reviewing what has been marked Government
14 Exhibits 2, 3, 4, and 5 were there actually any
15 payments made on the defendant's Best Buy credit
16 card?
17 A. I can't see that there was.
18 Q. If the defendant had attempted to make a
19 payment on his Best Buy account by going in the
20 store, would he be able to do so?
21 A. No. We do not accept payments in the store.
22 Q. Have you had an opportunity to calculate the
23 amount of the payment -- strike that, your Honor.
24 Have you had an opportunity to calculate the amount
25 of the purchases made by the defendant on his Best

81
1 Buy credit account from September 18, 2008, until
2 his last purchase on November 28, 2008?
3 A. Yes.
4 Q. Okay. Is that dollar amount $8728.24?
6 Q. How did you go about arriving at that amount?
7 A. Adding up each purchase on the credit card, not
8 including any fees or interest or anything like
9 that.
10 MS. BAUMGARTEN: I have nothing further,
11 your Honor.
12 THE COURT: Okay. Mr. Buczek, do you have
13 any questions on cross-examination?
14 MR. BUCZEK: Just have a couple.
15 THE COURT: Give Miss Baumgarten just a
16 moment to clear the podium.
17 Okay. Mr. Buczek.
18 CROSS-EXAMINATION BY MR. BUCZEK:
19 Q. Okay. Good afternoon. Just a couple
20 questions. Please, again, can you please state
21 your name for the record?
22 A. My name is James Sauer.
23 Q. Okay. Thank you. In what capacity are you
24 appearing here today, in your public or private
25 capacity? I know you probably wouldn't understand

82
1 that.
2 A. I'm sorry, I don't understand.
3 THE COURT: Okay. There's no question.
4 MR. BUCZEK: All right.
5 THE COURT: Next question please.
6 BY MR. BUCZEK:
7 Q. Do you have firsthand knowledge of any of these
8 alleged purchases at Best Buy, any eyewitnesses to
9 testify that these purchases actually did take
10 place?
11 A. I do not.
12 Q. All right. Do you have a claim against me?
13 A. No.
14 Q. Or I should say do you have a claim against
15 Shane Buczek?
16 A. I do not.
17 Q. Do you know Shane Buczek?
18 A. No. Not personally, no.
19 Q. Okay. For the record I accept your fact as
20 testimony that you have not have a claim --
21 THE COURT: No.
22 MS. BAUMGARTEN: Objection, your Honor.
23 THE COURT: There's an objection. You
24 know what, what you accept or what you don't accept
25 that's not for you to publish. It's for the jury

83
1 to resolve all fact issues in this case based on
2 testimony. That is the evidence.
3 MR. BUCZEK: All right. Thank you, Judge.
4 Thank you.
5 THE WITNESS: No problem.
6 THE COURT: All right. Thank you very
7 much.
8 MS. BAUMGARTEN: Nothing further, Judge.
9 THE COURT: Mr. Sauer, you're excused.
10 Thank you.
11 THE WITNESS: Thank you.
12 MS. BAUMGARTEN: Your Honor, it will just
13 take a moment. We're getting a witness from Room
14 212.
15 THE COURT: Is everybody okay, or do you
16 need ten minutes? You want ten minutes? Sure. As
17 long as one says yes, you all go. All right. So
18 one does say yes. We'll see you back here in about
19 ten minutes, or if anybody needs a couple extra
20 minutes, quarter of at the latest. 3:45 at the
21 latest.
22 COURT SECURITY OFFICER: Okay, your Honor.
23 (Jury excused from the courtroom.)
24 (Jury seated.)
25 THE COURT: Welcome back, ladies and

84
1 gentlemen, good to see you. Okay. We are resumed
2 in the case of United States of America versus
3 Shane Buczek. The attorneys and parties are back,
4 present. Jury is here, of course, everybody, roll
5 call waived. Thank you for staying with us. We
6 appreciate that. It's the government's case. You
7 have the burden, as you know, Miss Baumgarten, on
8 behalf of the government to prove the defendant
9 guilty beyond a reasonable doubt on each essential
10 element, and the presumption of innocence always is
11 in this courtroom with respect to the defendant.
12 You may proceed with your next witness.
13 MS. BAUMGARTEN: Joseph Kelly.
14 THE COURT: Good afternoon, sir. I'm
15 going to ask you to go to the far end of the
16 witness box. Stay right there, don't move, and we
17 have somebody to help you out here with an oath.
18 J O S E P H L. K E L L Y, having been duly sworn
19 as a witness, testified as follows:
20 THE COURT: Okay, Mr. Witness, I have just
21 a few preliminary instructions which I give to all
22 individuals who begin their testimony, and you are
23 here for the benefit of, really, the ladies and
24 gentlemen of the jury. They're here to hear your
25 testimony in response to questions asked of you.

85
1 Please be as responsive as possible. Don't
2 volunteer information, because that complicates
3 things. If you don't understand a question, ask
4 that it be repeated. I will direct the attorneys,
5 or if it's me asking you the question, I'll
6 re-present the question. And if there's an
7 objection, wait until I rule on the objection. I
8 will tell you then whether to complete an answer or
9 simply wait for another question to be asked. Do
10 you understand those instructions?
11 THE DEFENDANT: Yes, sir.
12 THE WITNESS: Yes, sir.
13 THE COURT: If you keep your voice up
14 about that level and at the microphone. You may
15 want to move it up just slightly, or get a little
16 bit closer, and I think it will work pretty well.
17 You don't have to be right on top of it. And if
18 you would state your full name now and spell your
19 last name, please.
20 THE WITNESS: Joseph L. Kelly, K-E-L-L-Y.
21 THE COURT: Thank you, sir. Your witness.
23 Q. Where are you employed, Mr. Kelly?
24 A. The Depository Trust and Clearing Corporation.
25 Q. And in particular what location?

86
1 A. 55 Water Street, New York, New York.
2 Q. Is that your business address?
3 A. That's our business address, yes.
4 Q. What is the business of Depository Trust?
5 A. The Depository Trust, first off, we're not a
6 traditional banking sense. We don't have any
7 individual account holders. Our owners are
8 actually the customers we service.
9 Q. Who are the customers that the Depository Trust
10 services?
11 A. The customers are various banks and brokerage
12 houses, banks like Citigroup, Bank of New York.
13 Brokerage houses like Merrill Lynch, Smith Barney,
14 those are our customers. They own us. In a sense
15 it's like a cooperative. We provide centralized
16 clearing and settlement and custody for those
17 companies.
18 Q. What do you mean by centralized clearing and
19 custody for those --
20 A. Custody means we actually possess the
21 securities that they have. They're in our
22 possession. So in essence when thousands of
23 transactions are occurred each day, rather than
24 have the buyer -- rather than have the buyer send
25 the certificates to each of those individual

87
1 companies that are buying it and the seller
2 presenting a check to those buyers, everything is
3 done at DTCC. We maintain the custody. Through
4 our automated systems we do the actual settlement
5 and processing. So at the end of the day rather
6 than making various thousands of payments, it's
7 actually one payment done at the end of the day.
8 It's called multi-lateral settling, so that each
9 individual customer of ours actually makes one
10 payment, whether it's a payment or a credit, it's
11 only done once at the end of the day.
12 Q. When you talk about DTCC, that's your employer,
13 Depository Trust Clearing Corporation?
14 A. Yes.
15 Q. When you're talking about securities, what do
16 you mean by that?
17 A. Securities transactions, you know, there's
18 corporate securities, there's mortgage backed
19 securities, there's all different various security
20 instruments that DTCC handles.
21 Q. Where are those transactions occurring? Where
22 are they traded?
23 A. They're traded on the various exchanges, New
24 York Stock Exchange, American Stock Exchange.
25 Q. Does Depository Trust have individual persons

88
1 as their clients?
2 A. No. We have no individual accounts. All of
3 our accounts are companies and entities.
4 Q. How do you refer to your customers and
5 accounts, by what name?
6 A. We call them participants.
7 THE COURT: You call them what?
8 THE WITNESS: Participants.
9 THE COURT: Thank you.
11 Q. Does Depository Trust have a routing or a
12 routing number?
13 A. Yes.
14 Q. You say routing number?
15 A. Routing number.
16 Q. All right. Is that confidential?
17 A. It's available out on the Internet at various
18 sources, various government entities, Treasury
19 Department, I believe maybe Federal Reserve too.
20 THE COURT: So if it's on the Internet
21 it's not confidential.
22 THE WITNESS: It's not confidential.
24 Q. If an individual approached Depository Trust to
25 open an account, could that be accomplished?

89
1 A. No. You have to be, you know, a member of --
2 you'd have to be a company doing banking or
3 brokerage business.
4 Q. That would apply either to a saving account or
5 a checking account?
6 A. Well, we have no savings or checking accounts.
7 Q. None whatsoever?
8 A. None whatsoever.
9 Q. Does Depository Trust deal in currency money?
10 A. No, we don't.
11 Q. If I can direct your attention to the early
12 part of December 2008, did Depository Trust receive
13 inquiries with respect to the defendant Shane C.
14 Buczek?
15 A. We received a call from HSBC asking us to
16 verify funds that he was trying to retrieve from us
17 using our routing number.
18 Q. Was other information aside from the routing
19 number provided to Depository Trust?
20 A. I believe HSBC had sent us copies of the direct
21 checks that he was attempting to use.
22 Q. Did it include an account number that the
23 defendant was saying was his at Depository Trust?
24 A. Yes, it did.
25 Q. How many occasions did those attempts occur?

90
1 A. I believe four or five occasions.
2 Q. And that was predating the phone call in
3 December 8?
4 A. Yes.
5 Q. All right. Was information provided by
6 Depository Trust to HSBC?
7 A. Yes. We told them that the efforts were
8 fraudulent, and that we would be contacting the
9 Federal Bureau of Investigation.
10 Q. All right. Did you confirm that the defendant
11 did not have an account with Depository Trust when
12 you were asked that?
13 A. Yes, we did. Typically on such cases we reach
14 out to our attorneys and ask that question.
15 Q. All right. Did you have an opportunity or
16 someone at Depository Trust to speak with an agent
17 of the FBI concerning the incidents?
18 A. Yes, our investigator Kenneth May spoke to Fred
19 Falkowski of the FBI.
20 Q. Does Depository Trust maintain birth
21 certificates on individuals?
22 A. No.
23 Q. Does Depository Trust keep or maintain any
24 trust accounts?
25 A. No.
91
1 THE COURT: Rephrase that question. Does
2 it what?
3 MS. BAUMGARTEN: Does Depository Trust
4 maintain birth certificates for any individuals?
5 THE WITNESS: No.
6 THE COURT: Next question.
8 Q. Does Depository Trust maintain any accounts
9 that are trust accounts?
10 A. No, not that I'm aware of.
11 Q. For individuals, any trust accounts?
12 A. We have no accounts for individuals whatsoever.
13 Q. Does Depository Trust have any trust accounts
14 at all?
15 A. Not that I'm aware of.
16 Q. Have you had an opportunity to check your
17 participants list for Depository Trust to determine
18 whether the defendant has any account relationship
19 with Depository Trust?
20 A. I believe that was asked of our attorneys to
21 check on that, and the answer to that was no.
22 There was no account.
23 Q. The actual participant list was checked?
24 A. Yes.
25 Q. Has the defendant ever had any type of account

92
1 with Depository Trust?
2 A. No.
3 THE COURT: Once again what kind of an
4 account does DTCC have?
5 THE WITNESS: What we call participant
6 accounts.
7 THE COURT: Meaning what again?
8 THE WITNESS: Participant accounts consist
9 of banks and brokerage houses. Those are our
10 customers, those are our owners. At the end of the
11 year if there's excess revenues that exceeds our
12 operating expenses, those revenues are given back
13 to our customers.
15 Q. Do participants have actual account numbers?
16 A. We call them participant numbers.
17 Q. How many digits are the participant numbers?
18 A. I believe they are four digits.
19 MS. BAUMGARTEN: Nothing further, your
20 Honor.
21 THE COURT: Is it safe to say then that
22 your participants such as companies and brokerage
23 houses have trust accounts, is that the type of
24 accounts?
25 THE WITNESS: No, I wouldn't refer to them

93
1 as trust accounts.
2 THE COURT: They're just accounts?
3 THE WITNESS: They're accounts, yes.
4 THE COURT: But you are a trust?
5 THE WITNESS: We are the name -- we're in
6 the name -- our name is Depository Trust. What
7 that is we actually hold the certificates in our
8 custody.
9 THE COURT: Okay.
10 MS. BAUMGARTEN: Are the certificates --
11 are the certificates physically in the custody of
12 Depository Trust Clearing Corporation?
13 THE WITNESS: Yes, they are.
14 THE COURT: Okay. Thank you
15 Miss Baumgarten. Mr. Buczek.
16 CROSS-EXAMINATION BY MR. BUCZEK:
17 Q. Good afternoon.
18 A. Good afternoon.
19 Q. Can you please state your name for the record?
20 A. Joseph L. Kelly.
21 Q. It's nice to finally talk to you. I have a few
22 questions I'd like to start off really quick. My
23 research that I have uncovered is that --
24 THE COURT: If there is an objection to
25 the form, I'll sustain it.

94
1 MR. BUCZEK: I have --
3 MR. BUCZEK: I have a belief system
4 that --
6 THE COURT: Okay. You have to ask a
7 question.
8 MR. BUCZEK: Okay.
9 BY MR. BUCZEK:
10 Q. Are you familiar with the belief system out
11 there concerning people like Jean Keating, Winston
12 Shrout --
13 A. No, sir.
14 Q. -- doing seminars on the sweat equity of the
15 DTC holds, such as the birth certificate and the
16 red number on the back of the birth certificate?
17 Judge, may I approach?
18 THE COURT: First of all, if you ask a
19 question and there's no objection to the question,
20 let the witness answer it.
21 THE WITNESS: No, sir.
22 THE COURT: Okay. So the answer is no.
23 MR. BUCZEK: Okay.
24 THE COURT: All right. Now you have to
25 ask a question with respect to what it is you want

95
1 to do next and what you're using by way of
2 identification.
3 MR. BUCZEK: Okay. Have you encountered
4 any other people out there that believe the DTC or
5 the DTCC at 55 Water Street that I referred to is
6 the power of tower at 55 Water Street, New York
7 City, that people believe that they do have a trust
8 account, and all the people are really trust
9 themself, because all cap letters on the birth
10 certificate?
13 MS. BAUMGARTEN: There's a compound
14 question. It's also beyond the scope of this
15 Court's ruling with respect to the area of inquiry
16 in the case.
17 THE COURT: I'll sustain it on the
18 compound nature of the question, and relevancy.
19 You do not have to answer.
20 MR. BUCZEK: Just for clarification,
21 Mr. Kelly, do you -- do you have a lot of inquiries
22 at your office concerning the sweat equity being
23 held by the DTCC concerning birth certificates,
24 mortgages, and so forth, and so on? Does there
25 seem to be a movement in America about people

96
1 uncovering what is really happening?
3 Relevance.
4 THE COURT: Sustained.
5 MR. COMERFORD: Can we side bar on that
6 for a second?
8 MR. COMERFORD: Could we side bar on that
9 for a second?
10 THE COURT: Okay.
11 MR. BUCZEK: By the way, Judge --
12 THE COURT: Are you saying it's
13 foundational in transitioning into other questions?
14 We'll talk about it at side bar.
15 MR. COMERFORD: Just as to the relevance,
16 Judge.
17 (Side bar discussion held on the record.)
18 MR. COMERFORD: Can Mr. Buczek ask
19 questions for the limited purpose of showing that
20 while these things aren't necessarily true other
21 people believe them.
22 THE COURT: And how is that relevant?
23 MR. COMERFORD: If a bunch of other people
24 believe this stuff, it makes his beliefs a little
25 more reasonable, and it goes to his state of mind

97
1 if he's not the only person on earth that believes
2 this stuff. If a bunch of people believe it, then
3 he's not just a crazy guy who has these crazy
4 beliefs. He's one of thousands of people to have
5 the same beliefs, and this witness I think would
6 know about that, because he's involved in other
7 situations where this same thing happens.
8 THE COURT: This is with respect to the
9 element of willfulness, a good faith
10 misunderstanding of the law that can be an issue in
11 a criminal intent case. Given that,
12 Miss Baumgarten, what's your position?
13 MS. BAUMGARTEN: Simply because many
14 people believe the wrong thing that's violative of
15 the law doesn't mean that it equals good faith,
16 your Honor.
17 THE COURT: All right. On that basis, you
18 know, at this point in the proceedings I'm going to
19 sustain the objection. That's not to say that
20 you're totally precluded at some point, given some
21 foundational connection to try to introduce good
22 faith misbelief in law. That may well come into
23 play, but it's too early based on the evidence of
24 this witness's testimony.
25 MR. BUCZEK: Judge, basically --

98
1 MR. COMERFORD: Thank you, Judge.
2 MR. BUCZEK: All right. I'll have --
3 MR. COMERFORD: That's -- we made the
4 record. Okay.
5 MR. BUCZEK: All right. Thank you.
6 THE COURT: It's premature.
7 MR. BUCZEK: Okay. Thanks.
8 (End of side bar discussion.)
9 THE COURT: Okay. What we just did,
10 ladies and gentlemen, for your information, is
11 what, as a matter of routine, happens at trials.
12 It's called side bar conferencing. It enables us
13 to talk in a manner in which we can kind of cut
14 through some matters without full discussion that
15 can be very lengthy. It gets us to the point
16 quick, so that we don't run into rules in the
17 courtroom that would conflict things, and then we
18 can proceed forward. So, we did resolve the issue
19 it short order, generally speaking. I try to
20 minimize those kinds of side bars, because I try to
21 do as much as I can in front of you so that you
22 understand all aspects of the case without going
23 outside the rules. But an occasional side bar
24 conference I think on an issue like this works.
25 The end result is there was an objection, I'm

99
1 sustaining the objection on the grounds discussed,
2 and prematurity, and we will go forward now with
3 the next question.
4 MR. BUCZEK: Thank you, Judge.
5 THE COURT: You're welcome.
6 MR. BUCZEK: I'm sorry about that,
7 Mr. Kelly. There's probably about a million
8 questions I would love to ask, but I'll just try to
9 keep it very brief. Do you know when HSBC
10 contacted the DTCC -- I'm not sure, is it the DTCC
11 or DTC, is it two different entities?
12 THE COURT: Well --
13 MR. BUCZEK: Because --
14 THE COURT: Here's the thing, whether
15 you're sure or not, it doesn't matter. Okay. You
16 have to be careful on that, because, as you know, I
17 have to treat you like I do every other attorney in
18 the courtroom, so the question really is is there a
19 difference between DTCC and DTC, if that's what
20 you're attempting to ask, okay?
21 BY MR. BUCZEK:
22 Q. Do you know when HSBC contacted the DTC
23 regarding the Best Buy account?
24 A. December of '08.
25 Q. Okay. And do you recall -- I'm sorry, what

100
1 year was that?
2 A. 2008.
3 Q. Eight. Okay. Do you recall the conversation
4 that took place?
5 A. No, I didn't take the call.
6 Q. Okay.
7 A. My investigator Kenneth May did.
8 Q. Okay. Can you tell me a little bit about what
9 took place in that conversation between Ken May and
10 yourself?
11 A. I don't understand the question.
12 Q. Okay. Basically what was the outcome of that
13 conversation?
14 A. Of the phone call with Ken May?
15 Q. The conclusion, yes.
16 A. I'm not clear on the question.
17 THE COURT: If you don't understand the
18 question, clarify it so the witness is comfortable
19 answering it if he can.
20 BY MR. BUCZEK:
21 Q. Okay. When HSBC contacted the DTC, I believe
22 the call was forwarded to Ken May.
23 A. Yes.
24 Q. Okay. And Ken May had a conversation, I
25 believe, with -- is that correct, with HSBC?

101
1 A. Yes.
2 Q. Or was it the FBI?
3 A. Representative of HSBC.
4 Q. So they actually called you?
5 A. They called -- Kenneth May spoke to HSBC.
6 Q. Okay. All right. Is there a transcript on
7 that conversation at all?
8 A. Not that I'm aware of.
9 Q. Okay. Could you please tell me what -- can you
10 recall any bit of what the conversation was about?
11 A. No, I don't.
12 Q. Okay. I guess I'll finish up. I -- I had
13 several questions, but I guess we're not going to
14 do that.
15 Mr. Kelly, I'd like to finish up by just
16 stating do you know Shane Buczek? Have you met
17 him, talked to him?
18 A. No.
19 Q. Okay. Do you believe he had some -- some
20 criminal intent -- okay. All right. You don't
21 have a claim against me, I would imagine the DTC
22 doesn't have a claim against Shane Buczek the
23 defendant.
24 A. I'm not sure what you mean by claim.
25 Q. A claim. Do they have a claim against the

102
1 defendant Shane Buczek?
2 A. I don't know what you mean by claim.
3 Q. Do you know anyone that has a claim against the
4 defendant, the defendant named Shane Buczek?
5 A. I don't understand the question.
6 Q. Okay. Any legal claim, any lawsuit. Is there
7 a claim -- does the DTC have a claim against Shane
8 Buczek?
9 A. All I know is that when HSBC called, they spoke
10 to Kenneth May, the discussion was over the funds
11 that you were trying to retrieve from the
12 Depository Trust and Clearing Corporation. And you
13 did not have an account with Depository Trust and
14 Clearing Corporation. You were using our routing
15 number.
16 Q. Are you referring to me or the defendant?
17 A. Defendant.
18 Q. Okay. Thank you.
19 A. Shane Buczek.
20 Q. Right. Right. Did you have firsthand
21 knowledge that this alleged defendant tried to
22 defraud DTC?
23 A. Yes.
24 Q. You do have firsthand knowledge?
25 A. Yes.
103
1 Q. Okay. How do you have firsthand knowledge?
2 A. The information HSBC gave Kenneth May. That
3 information was forwarded to our AML department,
4 forwarded to Fred Falkowski. I believe canceled
5 checks -- images of canceled or canceled direct
6 checks were obtained.
7 Q. You have the originals?
8 A. I'm not sure if they're originals or electronic
9 copies.
10 Q. I really -- I'd like to make a record that the
11 DTC does not have a claim against the defendant
12 Shane Buczek.
14 THE COURT: Objection sustained. Motion
15 to strike?
17 THE COURT: Disregard that statement,
18 ladies and gentlemen. It's not proper for either
19 an individual questioning or an attorney to make a
20 statement under those circumstances. It's not
21 proper or competent evidence.
22 MR. BUCZEK: Can I finish?
23 THE COURT: Yes.
24 MR. BUCZEK: Okay. Mr. Kelly, I got two
25 more questions and I'll be done. I thank you for

104
1 being here today by the way. I was not aware of
2 you coming here. I wasn't until Friday, Judge, so
3 I'm kind of like --
5 THE COURT: All right. Sustained. Ask
6 your two questions.
7 MR. BUCZEK: Okay. Mr. Kelly, do you come
8 here in your public capacity or your private
9 capacity?
10 THE WITNESS: Public.
11 MR. BUCZEK: Let the record reflect that,
12 Judge --
13 THE COURT: It does.
14 MR. BUCZEK: -- he's here in his public
15 capacity. Thank you so much. Just to -- just a
16 conclusion is that -- so no one here has a claim
17 against the defendant Shane Buczek and for the
18 record --
19 THE COURT: No. No.
21 THE COURT: That's not a question, because
22 you get the same reaction, I'll ask the jury to
23 disregard. It's the equivalent of a speech or
24 assuming a determination that a jury should make
25 with respect to what the facts are, and only if

105
1 they're relevant to the issues, and at this point
2 in time in the manner presented it would not be
3 relevant. So, it's not competent. If you have a
4 question, ask that, and then Mr. Kelly can -- he'll
5 be open to redirect examination.
6 MR. BUCZEK: Can I rephrase it then?
8 MR. BUCZEK: I just have one question and
9 I'll finish up. Judge, I have so many questions, I
10 was -- I'm not really prepared for this.
11 THE COURT: Okay.
12 MR. BUCZEK: I'll finish up.
13 THE COURT: Fair enough.
14 MR. BUCZEK: Do you believe that the
15 defendant Shane Christopher Buczek or Shane Buczek
16 had criminal intent to defraud DTC?
18 THE COURT: Sustained. And on grounds
19 of --
20 MS. BAUMGARTEN: It's the ultimate
21 determination of the trier of fact, your Honor.
22 THE COURT: All right. Under that
23 circumstance it's not relevant. The jury
24 determines issues that are fact issues, intent
25 being one in this particular case, that this

106
1 witness's view would be usurping the proper
2 function of the jury. Objection sustained.
3 MR. BUCZEK: Judge, I'm just trying to
4 make a record.
5 THE COURT: Understood, but it's not
6 proper to do it in that fashion.
7 MR. BUCZEK: Okay. Well, you know I'm not
8 a licensed attorney. I'm just doing the best I can
9 here.
10 THE COURT: Understood, and I'm giving you
11 a little bit of leeway. But when it's clearly
12 improper, I cannot allow you to do that.
13 MR. BUCZEK: Judge, I -- I -- the whole
14 theory of the case is getting back to this --
15 THE COURT: Okay.
16 MR. BUCZEK: I know I'm not allowed to
17 talk about it.
18 THE COURT: Right.
19 MR. BUCZEK: It gets back to my belief
20 system.
21 MS. BAUMGARTEN: Objection, your Honor,
22 motion to strike.
23 MR. BUCZEK: I'm not getting due process.
24 I've got to find out the truth of what's going on
25 here, because I do believe I do have an account.

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1 THE COURT: Okay. All right. If you want
2 to ask more about whether or not you have an
3 account with the Depository Trust CC, I'll allow
4 you to do that at this point, but that's it. You
5 have to ask it in the form of a question, because
6 otherwise it's unfair to both sides really to
7 proceed in that fashion, and it makes it impossible
8 for the jury to decide what it has to do.
9 MR. BUCZEK: I'm just trying to establish
10 criminal intent.
11 THE COURT: That's one of the elements --
12 MR. BUCZEK: Or lack thereof.
13 THE COURT: -- in this particular case,
14 which is a jury determination to make, and I --
15 enough. You have standby counsel. I'm giving you
16 this kind of discussion leeway which, you know, is
17 more than normally would take place. But you have
18 to play by the rules of the courtroom. So if
19 there's anything to be established, and it's
20 recognized that you're presumed innocent, you have
21 to do it according to the rules. If you want to
22 ask a proper question, I'll allow you to do that.
23 But you have to do it in terms of questions and
24 answers or documents.
25 MR. BUCZEK: All right. I'll try to make

108
1 it -- reword it just a little bit, a yes or no
2 question. Can I do that?
3 THE COURT: Yes.
4 BY MR. BUCZEK:
5 Q. Okay. Does the DTC hold any sweat equity in
6 the defendant's name of Shane C. Buczek or Shane
7 Buczek, and will you testify under penalties of
8 perjury?
9 A. DTCC has no account under Shane Buczek.
10 Q. I didn't say account. Are they holding the
11 sweat equity on anybody's birth certificate?
12 A. I don't understand that question.
13 MR. BUCZEK: I don't know how -- Judge, I
14 have no idea how else to rephrase it. It's either
15 yes or no, do they hold the sweat equity on our
16 hard work and labor.
17 THE COURT: Ask your standby counsel how
18 you can get a clarification from the witness about
19 what he doesn't understand in that question.
20 MR. BUCZEK: All right. Judge, I got
21 clarification from Brian. I'll just try to make it
22 brief. And I'm not trying to give you a hard time,
23 Mr. Kelly. It's just that I've learned a lot of
24 things over the last seven years, and I have a
25 certain belief system --

109
1 MS. BAUMGARTEN: Objection.
2 THE COURT: Okay. All right. No
3 speeches, please.
4 MR. BUCZEK: Okay.
5 THE COURT: All right.
6 MR. BUCZEK: Does the DTC hold the
7 original, not a certified copy, the original,
8 original, original, original birth certificate and
9 all the promissory notes of every mortgage in
10 America, original, do they hold them, yes or no?
11 THE WITNESS: I have no idea what you're
12 talking about.
13 MR. BUCZEK: Okay. Judge, it's just a
14 simple yes or no. Do they hold all the original
15 prison bonds at the DTC, 55 Water Street. Just a
16 yes or no.
17 THE WITNESS: I have no idea what you're
18 talking about.
19 THE COURT: Okay. Do you understand the
20 question? Let's do this. Do it one item at a
21 time, maybe it will be a little bit easier for the
22 witness to answer that. But when you add two or
23 three items, it gets a little bit confusing in the
24 question. Try it just one item at a time.
25 MR. BUCZEK: Okay. Judge, I'm just

110
1 thinking for a second, okay, because I want to make
2 sure I say it right, so if you just bear with me.
3 THE COURT: Absolutely.
4 MR. BUCZEK: I'm a little slow here,
5 but --
6 BY MR. BUCZEK:
7 Q. I'll do one question at a time. This was only
8 supposed to be one question, but, I need to know
9 for myself. Do -- does the DTC at 55 Water Street,
10 referred to as the Power of Tower, 55 Water Street,
11 New York City, New York, do they hold the
12 original -- let's just take for example the birth
13 certificate, the original, and I mean to say that
14 as original, the original -- do they just hold it?
15 Do they hold it, securitize it, do they have the
16 original, question one, birth certificate when
17 somebody is born, the original, not a certified
18 copy with the raised seal that I have here. Does
19 it go to the DTC and it's held there? I need to
20 know where it's at.
21 A. I have no idea what you're talking about, sir.
22 Q. All right. Does the DTC at 55 Water Street in
23 New York have anything to do at all with any
24 original birth certificate? Anything? Any
25 connection, anything at all?

111
1 A. I don't see where birth certificates comes into
2 play. I have no idea.
3 THE COURT: Well, it can call for a yes or
4 no. Does it have anything at all to do with the
5 birth certificate? Yes or no? Can you answer it
6 in that fashion?
7 THE WITNESS: No. I'm not aware of any
8 involvement with certificates -- excuse me,
9 certificates, securities requiring birth
10 certificates.
11 THE COURT: So the answer is no to the
12 best of your knowledge?
13 THE WITNESS: Yes. No, to the best of my
14 knowledge.
15 BY MR. BUCZEK:
16 Q. I'm not trying too give you a hard time. I
17 just -- I believe it's there. All right. The
18 last -- for example, here's a promissory note.
19 Does the DTC at 55 Water Street hold the original
20 promissory note of every mortgage in America?
21 A. Not to my knowledge.
22 Q. Can you please tell me what the DTC does and
23 why are they there at 55 Water Street?
24 A. Certainly. DTCC provides centralized custody,
25 clearing and settlement services for companies --

112
1 actually the owners, companies that do securities
2 transactions. Again, rather than have individual
3 transactions one company to the next and have to
4 settle thousands and thousands of transactions a
5 day, DTCC holds custody of those securities through
6 our automated systems. We clear and settle the
7 transactions. As a result of, you can say
8 economies of scale, tremendous amount of savings
9 and risk is alleviated as a result of that.
10 Q. Could you please tell me -- I'm sorry.
11 A. Another thing is within the transaction fee, we
12 do provide -- a segment of that fee goes to an
13 escrow account. In the event a company fails,
14 those transactions will be settled by DTCC.
15 Q. How many trillions of dollars does the DC do in
16 one particular 24-hour business day?
17 A. I don't have that figure off the top of my
18 head.
19 Q. Just a rough idea, one trillion --
20 A. I wouldn't want to estimate.
21 Q. You can't even throw a number at me?
22 A. No, I don't like throwing numbers.
23 Q. What's the net worth of the DTC?
24 A. I don't know, sir.
25 Q. Is it on the Internet?
113
1 A. I don't know, sir.
2 MR. BUCZEK: I'm not -- Judge, the main
3 question I want to ask is I don't -- I would like
4 to ask but I guess we talked about at side, but I'm
5 not really getting a clear answer getting back to
6 the original birth certificate, and I believe the
7 answer was no, is that correct, that they don't
8 hold the original birth certificate?
9 THE WITNESS: I'm not I aware of birth
10 certificates.
11 MR. BUCZEK: Or you're just not aware of
12 it.
13 THE WITNESS: I'm not aware of any birth
14 certificates.
15 MR. BUCZEK: All right. I -- I thank you
16 for being here today. And let the record
17 reflect --
18 MS. BAUMGARTEN: Objection.
19 THE COURT: If you have no further
20 questions, Mr. Buczek, that's the way we end it.
21 MR. BUCZEK: Okay. Okay. Thank you very
22 much.
23 THE COURT: Okay, Mr. Buczek, thank you.
25 MS. BAUMGARTEN: A few on redirect.

114
1 THE COURT: Miss Baumgarten.
2 MS. BAUMGARTEN: Just a couple on
3 redirect, your Honor.
4 THE COURT: Okay.
5 REDIRECT EXAMINATION BY MS. BAUMGARTEN:
6 Q. Does Mr. May --
7 THE COURT: Stay where you are. You can
8 stay where you are.
10 Q. Is Mr. May still employed at Depository Trust?
11 A. Yes, he is.
12 Q. Is he currently working?
13 A. He's out on disability right now.
15 Honor.
16 THE COURT: Anything more, Mr. Buczek?
17 MR. BUCZEK: Yeah, I guess, I do have a
18 question, but --
19 THE COURT: It has to relate to --
20 MR. BUCZEK: It has to relate directly
21 to -- all right. I don't want to take anymore of
22 the jury's time, but I would still like to reserve
23 some where -- if it gets to that point, I would
24 like to reserve the right to bring him back, Judge.
25 MS. BAUMGARTEN: Your Honor, this is the

115
1 opportunity. We did provide notice that --
2 MR. BUCZEK: I didn't get notice.
3 THE COURT: Well, there is a proper
4 process for recalling witnesses or subpoenaing
5 witnesses on your case. You have no obligation to
6 do that. You know that.
7 MR. BUCZEK: I know that. I was just
8 surprised that Mr. Kelly was coming today. I
9 thought it was Friday.
10 THE COURT: He's been on the witness list
11 for some time.
12 MS. BAUMGARTEN: I did provide information
13 concerning each of the days's witnesses and the
14 order I expected the government would call.
15 THE COURT: Okay. All right. Given all
16 of that, Mr. Kelly, you're excused. Thank you very
17 much.
18 MS. BAUMGARTEN: Your Honor, we have our
19 next witness is going to be somewhat lengthy.
20 Would you like us to start?
21 THE COURT: Yes. Everybody okay, ladies
22 and gentlemen?
23 From a schedule standpoint, ladies and
24 gentlemen, we will start tomorrow at 9:00 a.m, so
25 if you get here at 8:45. Make your best effort to

116
1 do that please. We will continue until 12. You
2 will get a little extended break till about
3 2:00 o'clock, and we'll start at 2:00 o'clock. So
4 you can make up for the indigestion you did get the
5 other day with a relaxing lunch tomorrow. Okay.
6 So, we will start at 9:00 o'clock.
7 For those of you that haven't been downtown in
8 a while, we are building a new federal courthouse
9 on Niagara Square, and actually in part it is a
10 construction meeting tomorrow, and talk about a
11 project that's taken a long time. It's now about
12 15 years that we've been working on trying to get
13 that courthouse funded and constructed, and we're
14 making progress, but it's a very complicated
15 undertaking. And there's just a myriad of issues
16 that come up day in and day out, and the
17 construction team gets together from time to time,
18 and tomorrow is one of those days. So we'll work
19 through it as rapidly as we can to make sure that
20 we have a plan on proceeding forward with the
21 courthouse. It was supposed to have been completed
22 construction-wise -- and it's a big -- relatively
23 big building. It's about 289,000 gross square
24 feet. It was supposed to be completed around June
25 or July of this year, 2010. Now it's already about

117
1 13 months late. It will be 2011 before we get it
2 finished. But it's going to be interesting once
3 you get to see it. So, if you get a chance, it's
4 quite an interesting building. I'm sorry.
5 Stay right where you are, we're going to get
6 you started.
7 E R I C J O H N S C H U M A C K E R, having been
8 duly sworn as a witness, testified as follows:
9 THE COURT: Okay, Mr. Witness, are you
10 ready?
11 THE WITNESS: Yes.
12 THE COURT: You're here for the benefit of
13 the ladies and gentlemen of the jury, so I'm going
14 to give you a couple of preliminary instructions on
15 testifying. You don't have to be right on the
16 microphone. You can be slightly back. If we need
17 an adjustment, I'll tell you that. But if you
18 speak in a conversational tone, it should pick up
19 rather well. Be as concise as you can. Don't
20 volunteer information, that's always problematic if
21 you do. If you have a question about what you're
22 being asked, just ask that the question be
23 repeated, I'll direct it. If there's an objection,
24 wait until I rule on the objection, then I will
25 tell you whether to complete your answer or wait

118
1 for another question to be requested. Do you
2 understand those instructions?
3 THE WITNESS: Yes.
4 THE COURT: All right. You can bend the
5 microphone down a little bit. Tell us who you are
6 by name and spell your last name.
7 THE WITNESS: Eric John Schumacker,
8 S-C-H-U-M-A-C-K-E-R.
9 THE COURT: Thank you. Your witness,
10 Miss Baumgarten.
13 Q. Where are you employed, Mr. Schumacker?
14 A. HSBC.
15 Q. How long have you been employed at HSBC?
16 A. Five years.
17 Q. What is your current position?
18 A. I manage the retail card services fraud
19 department.
20 Q. What are your duties in that position?
21 A. To oversee the investigation of private label
22 credit cards.
23 Q. What are examples of the private label credit
24 cards you're referring to?
25 A. Best Buy, Bon-Ton, Menards.

119
1 Q. Are you familiar with the computerized
2 information created and maintained at HSBC?
3 A. Yes.
4 Q. Do you access that computerized information?
5 A. Yes.
6 Q. Is that during the course of your position
7 currently at HSBC?
8 A. Yes.
9 Q. Are the deposits of HSBC bank insured by the
10 FDIC or the Federal Deposit Insurance Corporation?
11 A. Yes, they are.
12 Q. Were they also insured in that status in
13 September 2008 through January 2009?
14 A. Yes, they were.
15 Q. Okay. Are you familiar with the types and the
16 nature of information obtained during the course of
17 HSBC Bank's business and the Best Buy credit card?
18 A. Yes.
19 Q. I'm showing, Mr. Schumacker, Government's
20 Exhibit 1 in evidence.
22 approach?
25 Q. Are you familiar with Government's Exhibit 1?

120
1 A. Yes, I am.
2 Q. What is that please?
3 A. It's a Best Buy application, credit
4 application.
5 Q. For whom?
6 A. For Shane Buczek.
7 Q. What type of credit card was it?
8 A. It's a Best Buy credit application.
9 Q. Was there credit approved on that application?
10 A. Yes, there was.
12 A. $3,300.
13 Q. Is there identifying information on
14 Government's Exhibit 1 concerning the defendant?
16 Q. What information is within Exhibit 1?
17 A. His driver's license number, his name, his
18 Social, and his address.
19 Q. Who approves credit applications such as what's
20 shown in Government's Exhibit 1?
21 A. The Best Buy credit department.
22 Q. All right. What is HSBC's function with
23 respect to the Best Buy credit card application
24 shown in Exhibit 1?
25 A. We are the company that finances the actual

121
1 credit for Best Buy.
2 Q. So do you have any -- does HSBC have any duties
3 with respect to that credit card account?
4 A. Yes, they do.
5 Q. What are those duties?
6 A. They oversee the account.
7 Q. Who owns the credit account?
8 A. HSBC.
9 Q. Who receives payments, posts payments, things
10 of that nature?
11 A. Through HSBC.
12 Q. All right. I'm showing the witness what has
13 been marked for identification as Government's
14 Exhibit 18.
15 MS. BAUMGARTEN: That's previously
16 provided to the defense, your Honor.
17 THE COURT: Okay.
19 Q. Would you please review Government's Exhibit 18
20 for identification?
21 Are you familiar with the documents within
22 Government's Exhibit 18?
23 A. Yes, I am.
25 A. These are screen printouts for the account.

122
1 Q. Whose screen printouts are they?
2 A. For Shane Buczek.
3 Q. When you say the term screen printout, what are
4 you referring to?
5 A. These are for our -- anything that was done
6 within the account is recorded and saved on these
7 screen -- on this system, and these are screen
8 prints from that system.
9 Q. From the computerized system maintained by HSBC
10 Bank for the defendant's Best Buy account?
11 A. Yes.
12 Q. Are those records made by persons with
13 knowledge of the information within Government
14 Exhibit 18 for identification?
15 A. Yes.
16 Q. Are they made at or about the time the events
17 within and the information contained in
18 Government's Exhibit 18 is actually obtained?
19 A. Yes.
20 Q. Is it the regular practice of HSBC Bank to make
21 such computerized records?
22 A. Yes.
23 Q. And were those records kept and maintained in
24 the ordinary course of the business of HSBC Bank?
25 A. Yes.
123
1 MS. BAUMGARTEN: The Government moves
2 Exhibit 18 into evidence, your Honor, as a business
3 record exception under Rule 803.
4 MR. BUCZEK: I object again, Judge.
5 THE COURT: All right.
6 MR. BUCZEK: Same thing.
7 THE COURT: Okay. Objection overruled,
8 and I will permit and receive the exhibit.
10 evidence.)
12 Q. If I can direct you are attention to page 1 of
13 Government's Exhibit 18 in evidence, what is the
14 account number?
15 A. 7001 0621 2448 6055.
16 Q. What is the name on that account?
17 A. Shane Buczek.
18 MS. BAUMGARTEN: Could it be displayed for
19 the jury, your Honor?
20 THE COURT: All right. It's now
21 published.
23 Q. By reviewing the documents within Government's
24 Exhibit 18, can you tell whether or not the
25 defendant used the Best Buy credit account?

124
1 A. Yes.
2 Q. Did he use it to make purchases?
3 A. Yes.
4 Q. In addition to merchandise, but also services.
5 A. Yes.
6 Q. All right. I'm showing the witness Government
7 Exhibits 2, 3, 5, 4, 6, 7, 8, 9, and 10 already in
8 evidence. Would you take a moment and review those
9 documents? Are you familiar with those documents?
10 A. Yes.
11 Q. Have you had an opportunity to review them
12 before testifying here today?
13 A. Yes.
15 A. These are the Best Buy billing statements for
16 Shane Buczek.
17 Q. Do they reflect the account activity on the
18 defendant's account?
19 A. Yes, they do.
20 Q. Do they reflect -- what type of activity do
21 they reflect?
22 A. Purchases, payments, return payments.
23 Q. All right. Are there any payments reflected
24 within those documents?

125
1 Q. What is the time frame in which the defendant
2 made purchases on that Best Buy credit account?
3 A. From September 18th through 12/2.
4 Q. All right. In particular referring to what has
5 been marked as Exhibit 2, for example, the entry
6 September 18, 2008, what does the term same as cash
7 mean?
8 A. That's a Best Buy promotional offer. If the
9 customer makes a -- I'm sorry, the payments within
10 a certain amount of time, they receive some type of
11 promotion that's being offered at the time.
12 Q. Could you give the jury an understanding of
13 what the types of promotions are that would have
14 been possible at this time?
15 A. Reduced interest rate, zero interest rate.
16 Q. If you would please look at page 1 of
17 Exhibit 18, in particular the entry that says
18 direct check. Would you explain to the jury what
19 that term is?
20 A. That's a direct check payment through the phone
21 system to one of the representatives of HSBC.
22 Q. How is that accomplished?
23 A. The customer would phone in, give a series of
24 information to make a payment over the phone with a
25 check.
126
1 Q. Who has to telephone the customer
2 representative at HSBC to make that payment?
3 A. The person on the account.
4 Q. How is that verified?
5 A. Through a series of questions just regarding
6 the personal information of the account, last four
7 Social, address, date of birth.
8 Q. Why is that done?
9 A. To verify that it is the person that's calling
10 in.
11 Q. All right. As reflected on page 1 of
12 Government's Exhibit 18, who actually made that
13 call?
14 A. The customer Shane Buczek.
15 MR. BUCZEK: Objection, Judge.
16 THE COURT: All right. Grounds?
17 MR. BUCZEK: The grounds is does he have
18 firsthand knowledge that Shane Buczek actually
19 called the defendant.
20 THE COURT: On cross-examination he can be
21 asked that.
22 MR. BUCZEK: Okay. Thank you.
24 Q. What type of information was provided by the
25 defendant on November 18th, 2008?

127
1 A. The amount of the check, the check date, the
2 check number, and that the card holder would agree
3 to a 15-dollar fee for using the service.
4 Q. Sir, I think you can touch your computer screen
5 and identify for the jury specifically where it is
6 that you're obtaining the information that you just
7 testified concerning. Can you circle it?
8 A. Oh, I'm sorry.
9 Q. And this particular occasion, what was the
10 check number that was provided by the defendant?
11 A. 1308.
12 Q. And what was the amount of the payment?
13 A. $1,679.74.
14 Q. What happens after that information along with
15 the bank routing number and account number is
16 provided to HSBC?
17 A. The check is placed in a -- the check has to
18 clear, and the balance or the amount of the payment
19 comes off the balance off the credit account.
20 Q. In this particular instance on
21 November 18, 2008, did the defendant provide the
22 information for Depository Trust?
23 A. Yes.
24 Q. What does the term check hold mean?
25 A. That is a term where the check would have to

128
1 clear usually two days, or would actually clear us
2 just as far as we're concerned. We're giving
3 enough time to clear the bank that it was drawn off
4 of.
5 Q. In this particular incident on November 18th --
6 was it November 18, 2008 or was it November 13,
7 2008?
8 A. November 13th.
9 Q. I misspoke earlier. Was the transaction and
10 call received on November 13, 2008?
11 A. Yes, it was.
12 Q. So the other information, aside from the date,
13 that you previously testified to was accurate?
14 A. Yes, it is.
15 Q. Okay. In this particular circumstance was the
16 direct check payment applied to the defendant's
17 account?
18 A. Yes, it was.
19 Q. And when was it applied?
20 A. November 13th.
21 Q. What was the effect of applying the direct
22 check payment to the defendant's account?
23 A. I'm sorry, could you ask that one more time?
24 Q. What impact did the application of the direct
25 check payment have on the defendant's Best Buy

129
1 account?
2 A. It opened up his account to buy whatever the
3 payment was, in this case it was 1679.74 that would
4 have come off the balance.
5 Q. I'm referring the witness to what has been
6 marked as Government Exhibit 4 in evidence. In
7 particular with respect to an entry dated
8 November 15, 2008, was there a purchase made by the
9 defendant on that date?
12 A. $3,382.35.
13 Q. Did HSBC Bank receive monies, actual monies, as
14 a result of the direct check payment by the
15 defendant?
16 A. No.
17 Q. Why not?
18 A. Because on the statement it was returned. It
19 was a -- it was a returned check.
20 Q. You're referring to Government's Exhibit 4?
21 A. Yes, I am.
22 Q. Where specifically on the statement -- if you
23 could please circle that for the jury also.
24 How is the entry identified?
25 A. It's identified as a returned check for

130
1 1679.74.
2 Q. What occurred when the returned check event
3 happened? How did it impact the defendant's
4 account?
5 A. That was added on top of the balance. Added
6 back to the balance.
7 Q. If you would look at page 6 of Government's
8 Exhibit 18, in particular an entry occurring
9 November 19, 2008. Do you have that?
10 A. Yes.
11 Q. All right. What occurred on that particular
12 date?
13 A. In this case the customer called up and
14 actually used the automated check line.
15 Q. What's the automated check line?
16 A. It's where they call, they do not have to speak
17 to a representative. They can do -- basically the
18 transaction is done through an automated system.
19 Q. How does a caller such as the defendant on this
20 particular day know what information to enter into
21 the key pad at what time?
22 A. There's a series of prompts and instructions
23 through the phone call.
24 Q. Is there a mechanism by which the identity of
25 the caller is verified?

131
1 A. On the automated system I don't believe so.
2 Q. What information would the defendant had to
3 have input into the automated system to have the
4 direct check function occur?
5 A. His account number, the amount of the sale --
6 I'm sorry, the amount of the payment, the date, the
7 check number that would be used, and that he
8 would -- there's a prompt saying he would agree to
9 pay the 15-dollar fee.
10 Q. Is there a fee attendant to the service on each
11 occasion?
12 A. Yes, there is, $15.
13 Q. If you would, please, identify by circling the
14 line or lines of information that you're referring
15 to on page 6 on Government's 18 in evidence. What
16 was the amount of the payment that occurred on
17 November 19, 2008?
18 A. $3,397.35.
19 Q. Was that payment applied to the defendant's
20 account?
21 A. Yes, it was.
22 Q. If you would please refer to Government's
23 Exhibit 4, in particular entries starting on
24 November 21, 2008. Are there purchases?

132
1 Q. Would you please identify for the jury what the
2 first purchase was and the date on which it
3 occurred?
4 A. The date was 11 -- I'm sorry,
5 November 21st, 2008, and the first purchase was
6 $97.86.
7 Q. And that occurred at Best Buy?
8 A. Yes, it did.
9 Q. Is there another purchase?
10 A. There is, for $217.47.
11 Q. On what date did that occur?
12 A. On November 21st, 2008.
13 Q. If you would please -- have we circled that for
14 the jury?
15 Is there a purchase occurring on November 22,
16 2008?
18 Q. What is the dollar amount for that purchase?
19 A. $119.63.
20 Q. Would you circle that purchase or that line for
21 the jury?
22 A. Sure.
23 Q. Referring to a transaction on November 23,
24 2008, was there one?
25 A. Yes.
133
1 Q. And what was it?
2 A. It was $2,882.46.
3 Q. That was a purchase?
4 A. Yes, it was.
5 Q. What was the net effect on the defendant's
6 credit account when the transaction on
7 November 19, 2008, of $3,397.35 occurred?
8 A. That payment was returned.
9 Q. Right.
10 A. And that was added on top of the balance.
11 Q. When the payment was first -- information was
12 received on November 19, 2008, what effect, if any,
13 did it have on the defendant's account?
14 A. It reduced the credit line by that amount. I'm
15 sorry, not the credit line. It reduced the balance
16 of the account of that amount.
17 Q. Would it have increased the available credit
18 line?
19 A. It wouldn't have increased the available credit
20 line. But it would have given the customer the
21 purchase power of $3,397.35.
22 Q. Would it have enabled the purchases to occur on
23 November 21, November 22, and November 23, 2008?
24 A. Yes.
25 Q. All right. Did HSBC Bank ever receive any

134
1 funds, any money with respect to the direct check
2 payment on November 19, 2008?
3 A. No.
4 Q. On Government's Exhibit 4 could you circle for
5 the jury the return of that payment?
6 A. Sure.
7 Q. Ultimately was the payment charged back to the
9 A. Yes, it was.
10 Q. If you would please look at Exhibit 18, page 13
11 of that exhibit, in particular transaction
12 occurring November 24, 2008.
13 A. Yes.
14 Q. Was there an attempt again to use the direct
15 check function?
17 Q. What was the -- did this occur by speaking with
18 a representative or by the automated line?
19 A. This was with a representative.
20 Q. All right. Would you please circle for the
21 jury on that page the information provided by the
22 defendant to HSBC? Can you see it now?
23 A. I can.
24 Q. Would the same sort of security information
25 have been requested of the defendant on

135
1 November 24, 2008?
2 A. Yes.
3 Q. Would the representative from HSBC have
4 verified that it was the defendant calling by using
5 that information?
6 A. Yes.
7 Q. All right. What was the information provided
8 by the defendant on that date?
9 A. The amount of the payment, the check date, the
10 check number, and that the customer would agree to
11 a 15-dollar fee for using the service.
12 Q. What was the check number?
13 A. 1315.
14 Q. Was the information provided, the routing
15 number and the account number for Depository Trust?
16 A. Yes, it was.
17 Q. What was the amount of the payment on that
18 date?
19 A. $410.96.
20 Q. Was the payment of $410.96 applied to the
22 A. Yes.
23 Q. What effect did it have, that application of
24 that payment?
25 A. It would have reduced the -- it would have

136
1 reduced the open to buy once again $410.96.
2 Q. When you say open to buy, what do you mean by
3 that?
4 A. The available -- the available limit -- I'm
5 sorry, the available funds on the card or on the
6 account to buy something else.
7 Q. Did HSBC ever receive any money, any funds with
8 respect to the $410.96 payment?
9 A. No.
10 Q. I would refer your attention to Exhibit 18,
11 page 16, in particular an entry dated November 25,
12 2008.
13 A. Okay.
14 Q. I wasn't looking up sorry.
15 A. That's okay.
16 Q. What occurred on that date?
17 A. Another direct -- I'm sorry, another direct
18 check payment.
19 Q. How did that direct check payment occur?
20 A. Once again it was talking to a representative.
21 Q. Would the representative have gone through the
22 obtaining of security type information from the
23 defendant?
24 A. Yes.
25 Q. What information was provided by the defendant

137
1 to the HSBC representative?
2 A. Besides the card number, the amount, the check
3 date, the check number, and that they would agree
4 to a 15-dollar fee once again.
5 Q. Would you circle on the screen for the jury
6 that particular entry?
7 The defendant would have had to provide the
8 routing number and the account number, is that
9 correct?
10 A. Yes.
11 Q. That would have been for Depository Trust?
12 A. Yes.
13 Q. Was the -- what was the amount of the payment?
14 A. $2,896.46.
15 Q. Was that payment applied to the defendant's
16 account?
17 A. Yes, it was.
18 Q. Has HSBC ever received any of those funds on
19 that direct check payment?
20 A. No.
21 Q. I refer your attention to Exhibit 4, in
22 particular an entry dated November 25, 2008.
23 A. Okay.
24 Q. Was there a purchase on that particular date?
25 A. No. On November 25th?

138
1 Q. Was there --
2 A. On November 26th. If you said that, I
3 apologize.
4 Q. I said November 25. Thank you for correcting
5 me. What was the amount of that purchase?
6 A. $313.
7 Q. Sir, would you tap the screen, it will clear
8 the screen.
9 THE COURT: No, we'll do it here.
11 Q. Was the -- the $2,896.46 payment ever received
12 by HSBC?
13 A. No.
14 Q. What occurred with respect to that direct check
15 payment?
16 A. It was returned.
17 Q. What was the net effect of the return of that
18 payment?
19 A. It was added on top of the existing balance.
20 Q. If I could refer your attention to Exhibit 18,
21 page 19 of that exhibit, in particular an entry
22 dated November 28, 2008.
23 A. Yes.
24 Q. Was there another direct check payment
25 scheduled?
139
2 Q. All right. If you would please circle the
3 pertinent information for the jury on the screen.
4 How was that payment actually scheduled?
5 A. That was through our automated system.
6 Q. Which would have provided the prompting to the
7 defendant?
8 A. Yes.
9 Q. What information would have been provided by
10 the defendant on that date?
11 A. The account number, the amount of the payment,
12 the date, the check number that was going to be
13 used, and agreeing to the fee of $15.
14 Q. Would the routing information for the bank and
15 the account number have also been provided?
16 A. Yes.
17 Q. Was that for Depository Trust?
18 A. Yes, it was.
19 Q. What was the check number provided by the
20 defendant on November 28, 2008?
21 A. 1319.
22 Q. What was the amount of the payment that
23 information that was provided by the defendant on
24 November 28, 2008?
25 A. $2,068.74.
140
1 Q. Was the payment applied to the account?
2 A. Yes, it was.
3 Q. Ultimately did HSBC receive any funds or any
4 money with respect to that payment?
5 A. No.
6 Q. If I can refer your attention to Government's
7 Exhibit 5.
8 A. I don't have Exhibit 5.
9 MS. BAUMGARTEN: It's marked in evidence.
10 THE COURT: If you want to look on the
11 screen, I think it's there.
13 Q. Exhibit 5.
14 A. I've got it. Okay.
15 Q. My heart fluttered. I thought I lost an
16 exhibit. Do you have it now in front of you, sir?
17 A. Yes, I do.
18 Q. Is there a reference on Government's 5
19 concerning that particular payment in the amount of
20 $2,068.74?
22 Q. What occurred?
23 A. There was a returned check.
24 Q. Referring to Government's Exhibit 4, in
25 particular an entry on November 28, 2008, was there

141
1 a purchase by the defendant?
4 A. $29.88.
5 Q. If I can refer your attention to Exhibit 18,
6 page 23, an entry dated December 2, 2008. Do you
7 have that?
8 A. Yes.
9 Q. What occurred on that date?
10 A. Another automated check -- direct check
11 payment.
12 Q. What information was provided by the defendant
13 in the automated system on December 2, 2008?
14 A. The account number, the amount that was going
15 to be paid, the date, the check number, and agree
16 to pay the $15 fee.
17 Q. Would the defendant also have provided the
18 routing number and the account number at Depository
19 Trust?
20 A. Yes.
21 MR. BRUCE: We lost everything.
22 THE COURT: I think you can proceed
23 without a publication.
25 Q. Reviewing that page on Government's

142
1 Exhibits 18, was the payment -- did you provide the
2 payment amount?
3 A. Not yet.
4 Q. What is the payment amount?
5 A. $455.84.
6 Q. Was that payment amount applied to the
7 defendant's Best Buy credit account?
8 A. Yes, it was.
9 Q. Ultimately did HSBC receive any of the funds of
10 that $455.84 payment?
11 A. No.
12 Q. If you could refer to Government's Exhibit 5.
13 THE COURT: How many more exhibits do you
14 have?
15 MS. BAUMGARTEN: I have a few more
16 questions -- I don't have any further to enter into
17 in evidence or ask the Court to accept, Judge.
18 THE COURT: Okay. Well, let's finish your
19 direct then.
20 MS. BAUMGARTEN: Okay.
21 THE COURT: And then -- go ahead, please.
23 Q. All right. With respect to Exhibit 5, is there
24 an entry concerning that payment -- direct check
25 payment of 455.84?
143
1 A. Yes, there is.
2 Q. And what was the entry?
3 A. It was a returned check.
4 Q. Are you familiar with the term bust out?
5 A. Yes, I am.
6 Q. What does that mean?
7 A. That's when a customer opens up an account,
8 makes purchases with no intention of paying any of
9 the money back.
10 Q. Was that entry or that designation made with
11 respect to the defendant's account?
12 A. Yes. This account was labeled a bust out
13 account.
14 Q. Why was the defendant with a $3,300 credit
15 limit able to actually purchase merchandise and
16 services approximating $8,800?
17 A. Because every time there was a direct check
18 payment made, the customer would go back into the
19 store almost immediately and then make additional
20 purchases before the check had a chance to clear.
21 Q. Did HSBC ever receive any moneys in payment of
22 any of the charges on the defendant's Best Buy
23 account?
24 A. No.
25 Q. Did the defendant make any online payments with

144
1 respect to his Best Buy credit account at HSBC?
2 A. No.
3 Q. Did the defendant make any cash payments on the
4 balance owed on his HSBC Best Buy credit account?
5 A. No.
6 Q. Did he pay by traditional check, a paper check,
7 any funds, any payments on his Best Buy credit
8 account?
9 A. No.
10 Q. Did he make any payments by money order on his
11 Best Buy credit account?
12 A. No.
13 Q. Has HSBC received any money from any entity,
14 including Depository Trust, for any of the amounts
15 owed on the defendant's Best Buy credit account?
16 A. No.
17 Q. Is the amount in full outstanding?
18 A. Yes, it is.
19 Q. With respect to the purchases of merchandise
20 and services from Best Buy account, did you have an
21 opportunity to calculate that figure?
22 A. I did. And it's in --
23 Q. Is it $8,728.64?
24 A. Yes, it is.

145
1 Honor.
2 THE COURT: Okay. How are you doing,
3 ladies and gentlemen, okay? All right. Before it
4 gets too dark, should I let you go and come back
5 tomorrow morning, and we're going to start at what
6 time?
7 THE JURY: Nine.
8 THE COURT: You won't talk about this case
9 with anybody. Keep your minds open until all of
10 the evidence is in. So we'll see you tomorrow
11 morning. Thank you very much for your service.
12 Mr. Schumacker, we will see you as well
13 tomorrow morning at 9:00 o'clock. Okay. Thank you
14 very much, folks.
15 (Jury excused from the courtroom.)
16 THE COURT: Cross-examination tomorrow.
17 MR. BUCZEK: Right. Thank you.
18 * * * * * *
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1 CERTIFICATION
3 I certify that the foregoing is a
4 Correct transcription of the proceedings
5 Recorded by me in this.
8 s/Michelle L. McLaughlin
Michelle L. McLaughlin, RPR
9 Official Reporter
U.S.D.C., W.D.N.Y.
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VOL.

UNITED STATES DISTRICT COURT

Proceedings held before the

Honorable William M. Skretny, Part IV,

U.S. Courthouse, 68 Court Street,

Buffalo, New York on March 3, 2010.

MARY CATHERINE BAUMGARTEN,

Michelle L. McLaughlin, RPR,

12 GOVERNMENT EXHIBITS EVD.

1 (Jury not present in the courtroom.)

2 THE CLERK: Criminal case 09-121S, United

3 States of America versus Shane Buczek.

4 THE COURT: Okay. The attorneys and

5 Mr. Buczek are here. We're ready to go forward. I

6 believe that the jury is here. I'll have them

7 called in in short order.

8 The government's ready to proceed?

9 MS. BAUMGARTEN: We are, your Honor.

10 THE COURT: All right. Mr. Buczek, you're

12 MR. BUCZEK: Judge, I do want to just make

13 a record today real briefly. Yesterday afternoon I

14 filed two documents, and I just want to put it on

15 the record -- I think I already know what you're

16 going to say -- but I just want to have it on the

17 record. I put a Notice of Mistake and Expression

18 of Trust in front of the Court filed March 2nd.

19 THE COURT: And a Notice of Conditional

20 Acceptance and Witness List for Shane C. Buczek.

21 MR. BUCZEK: Right. And I just wanted

23 had an opportunity to review the documents, and --

24 not that it's an argument or anything. I believe

25 there's been no controversy, there's been a

1 mistake, and as you can see right there. I don't

2 want to waste too much of your time on that, and I

4 THE COURT: Yeah, you know, they've been

5 reviewed. They're more redemption theory documents

6 in my view. Neither -- and from reviewing them,

7 neither requests any form of relief, so I'll note

8 that they were filed, they've been reviewed, and

9 we'll proceed on that basis.

10 MR. BUCZEK: And one last thing too is

11 that I need to know if everyone in this courtroom

12 is here in their public capacity or private

13 capacity as a living, breathing man or woman. I

14 know it's strange, but I just want to put it on the

16 THE COURT: All right. It's noted for

17 the -- for the record. Thank you.

18 Darryl, would you bring the jury in please?

19 MR. BUCZEK: Judge, I didn't get an

21 THE COURT: That's your answer, it's noted

22 for the record.

23 MS. BAUMGARTEN: Judge, with respect to

24 the witnesses -- potential witnesses in the jury

25 area -- or in the gallery, the government moves to

1 sequester those, Judge.

2 THE COURT: You want to sequester all

3 those witnesses that are out in the gallery right

5 MS. BAUMGARTEN: No, but we would like it

6 to be in effect in the future, Judge. I realize

7 there aren't any right now, except for the case

9 THE COURT: So you want them excluded?

10 MS. BAUMGARTEN: Please.

11 THE COURT: All right. If they are going

12 to be called on the direct case of the respective