Buczek 20100308 Transcript 5 - 121

VOL.
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 8, 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
540
1 I N D E X
2 WITNESS PAGE
3 OPENING STATEMENT BY MS. BAUMGARTEN 549
4 SCOTT KAWSKI
Direct Examination by Ms. Baumgarten 552
5 Cross-Examination by Mr. Buczek 562
Redirect Examination by Ms. Baumgarten 576
6 Recross-Examination by Mr. Buczek 577
7 SUMMATIONS
Ms. Baumgarten 582
8 Mr. Buczek 583
9 CHARGE TO THE JURY 584
10 VERDICT ON COUNT II 595
11
12
13 GOVERNMENT EXHIBITS EVD.
14 38 555
37 559
15
16
17
18
19
20
21
22
23
24
25
541
1 (Jury not present in the courtroom.)
2 THE COURT: Lets find out. I don't think
3 there's anything that's at issue. Let's call the
4 case. As soon as the jury is here, we will get
5 started.
6 THE CLERK: Criminal case 09-121S, United
7 States of America versus Shane Buczek.
8 THE COURT: Government attorneys are here.
9 Miss Baumgarten, good morning.
10 MS. BAUMGARTEN: Good morning, Judge.
11 THE COURT: Mr. Bruce.
12 MR. BRUCE: Morning, Judge.
13 THE COURT: Mr. Comerford, Mr. Buczek.
14 MR. BUCZEK: Morning, Judge.
15 THE COURT: We should get started as
16 quickly as possible in this case. If you haven't
17 received it yet, I have the proposed charge for you
18 to look at. It's very basic. It addresses
19 Count II specifically. It also references the fact
20 that the full charge that I gave on Friday is
21 incorporated into today's charge. There is the
22 proposed jury verdict form. And I think both sides
23 have discussed that at least a little bit with
24 Mr. Moeller. And I think it should be in good
25 stead, good form. And I think we're ready to

542
1 begin. There will be, if you choose, opening
2 statements. You have one witness?
3 MS. BAUMGARTEN: Yes.
4 THE COURT: That's Mr. Kawski?
6 THE COURT: Okay. And there's an
7 opportunity to cross-examine. And if there's any
8 defense case, you let me know.
9 MR. BUCZEK: Yeah, Judge. I just want to
10 add some exhibits into the evidence file. An
11 exhibit.
12 THE COURT: All right. What's the
13 exhibit?
14 MR. BUCZEK: The exhibit is
15 August 20th, 2009, transcript from Judge Schroeder.
16 And also another exhibit is an authentication that
17 was authenticated without certified -- I got it
18 authenticated by the DOS and DOJ, and
19 authentication number 0903321-1, and signed by
20 Hillary Clinton and Eric Holder, and that document
21 is pertaining to case number 08-CR-054 and filed on
22 January 9th, 2009.
23 THE COURT: How is that relevant,
24 Mr. Buczek?
25 MR. BUCZEK: It's a notice of rescission

543
1 of signature on the conditions based on my findings
2 that I filed, which was never responded to. Can I
3 present that to you?
4 THE COURT: No. I don't think so, not
5 yet.
6 MS. BAUMGARTEN: The government's going to
7 object. First of all, we had not seen that.
8 Second of all, I anticipate that there will be
9 testimony from Mr. Kawski with respect to the
10 process. The fact that the defendant -- I guess
11 it's relevance, Judge.
12 MR. BUCZEK: It's original, Judge.
13 THE COURT: All right. It may be. At
14 this point in time I'm going to deny the request.
15 You made your record. You've identified it. It
16 preserves your right to argue relevancy I guess.
17 As far as the transcript is concerned, you can
18 use the transcript for impeachment purposes, but I
19 suppose if Mr. Kawski -- if there's any testimony
20 there -- has he testified before? And does that
21 relate to Mr. Kawski's testimony?
22 MR. BUCZEK: He was an eyewitness to
23 the -- to this hearing. I believe his name is on
24 here. Scott Kawski, probation office, also present
25 in the room at 1:47 p.m., August 20th, 2009. And I

544
1 got it listed down as Exhibit B. I was going to
2 use this as Exhibit A.
3 MR. BRUCE: Judge, I am familiar with the
4 transcript. In the transcript Judge Schroeder, for
5 lack of a better term, criticized me.
6 THE COURT: I'm aware of that.
7 MR. BRUCE: That's the transcript he wants
8 to use.
9 THE COURT: Does it relate specifically to
10 the testimony of Kawski?
11 MR. BRUCE: No, your Honor.
12 MS. BAUMGARTEN: The objection would be
13 relevance then, your Honor, with respect to the
14 findings this Court -- the jury has to make in this
15 court now concerning counsel.
16 MR. BUCZEK: All I was trying to do is
17 show motive behind this case and other cases, the
18 motive behind it, because my findings is that there
19 is no, you know -- well, I don't want to repeat
20 myself over and over and over again. There is
21 really no valid claim in front of the jury to even
22 make a verdict on. And basically it gets back to
23 the whole -- it's a fruit from the poisonous tree
24 doctrine, and that's all I'm trying to get across.
25 THE COURT: I think I'll acknowledge you

545
1 making the record on that point. I'm familiar with
2 the transcript. I know what you're attempting to
3 do with it. I will sustain the government's
4 objection to it, but your record is preserved by
5 identification.
6 MR. BUCZEK: One more thing, on page 30,
7 Judge Schroeder, on line 21 it says that
8 "Mr. Buczek is not about to bring down the
9 government of the United States, that's my
10 finding." I got it right here.
11 THE COURT: And again, that will be
12 referenced in the record, but it's not admissible
13 for purposes of --
14 MR. BUCZEK: Okay. Thank you.
15 THE COURT: -- this part of the case.
16 Okay.
17 MR. BUCZEK: Thank you.
18 THE COURT: Okay. Let's just find out if
19 the jury is available. As soon as we're ready,
20 we're going to bring them right in.
21 THE CLERK: We're missing three. The
22 alternate is here. She has been separated from the
23 regular jury. We're missing three, and Gerry is
24 going to let me know as soon as they're all here.
25 THE COURT: As soon as they're ready,

546
1 we'll come and we'll get started. You want to set
2 up the opening statement -- if you're going to use
3 the podium.
4 MS. BAUMGARTEN: I'm going to make it very
5 brief. If the Court wishes there to be a podium,
6 that's fine. But it will be very brief.
7 THE COURT: I don't think we need it then.
8 Okay. As soon as the jury is here we'll get
9 started. Thank you.
10 MS. BAUMGARTEN: Thank you.
11 (Short recess was taken.)
12 (Jury seated.)
13 THE COURT: Good morning. Please have a
14 seat. Good morning. It's good to see you bright
15 and early on a Friday (sic). I arranged the
16 weather just for you. We are now resumed in the
17 case, once again, United States versus Shane
18 Buczek. And the attorneys are present, and, of
19 course, Mr. Buczek is here. This is your return, I
20 guess, first time since Friday when you rendered as
21 to Count I the guilty verdict in that case. And I
22 again commend you and thank you for your commitment
23 to this case and to your duty.
24 We left it on Friday with my telling you that I
25 was unable up to that point in time to relate to

547
1 you that you would have to come back for another
2 task, and I'll explain to you why that is and
3 what's going to transpire this morning. You will
4 be asked to render another verdict, and the
5 verdict, likewise, will have to be a unanimous
6 verdict. The instructions that I gave you fully
7 apply to the process that you will be involved in,
8 and there will be a brief opening statement by the
9 attorneys, if they choose to do that, and there can
10 be a brief closing argument as well.
11 The case is one that involves a second count as
12 part of the original indictment, which was what we
13 call bifurcated. And Count II of the indictment
14 reads as follows, just so you know. It charges
15 that defendant Shane C. Buczek was on release
16 pursuant to an order dated March 13th, 2008, from
17 the United States District Court for the Western
18 District of New York, case number 08-criminal-54,
19 which order notified said defendant of the
20 potential affect of committing an offense while on
21 pretrial release.
22 From on or about September 18th, 2008, to on or
23 about January 16th, 2009, in the Western District
24 of New York, and elsewhere, the defendant Shane C.
25 Buczek, did commit the offense of bank fraud in the

548
1 manner set forth in Count I of this indictment in
2 violation of Title 18, United States Code, Section
3 1344. So this is all in violation of Title 18,
4 Section 3147(1). Remember that that second count
5 of the indictment that he was on release when the
6 bank fraud was committed, in essence, is -- that
7 charge is not evidence, just as I instructed you
8 with respect to Count I. That indictment charge
9 was not evidence. It's simply a charge that puts
10 the defendant on notice of the crime that he was
11 accused of committing.
12 So, your task is to resolve Count II of the
13 indictment. And in that regard, the government
14 will make an opening statement. There will be one
15 witness in this particular case. You will judge
16 credibility as you have, and it's with respect to
17 establishing, if it can, beyond a reasonable doubt,
18 the fact of the commission of a crime while the
19 defendant was on release for another, and that is
20 in essence the crime.
21 So, we will have the opening statements. That
22 is not evidence. Keep in mind the same rules
23 apply. You will hear from Miss Baumgarten, the
24 prosecutor in this case. The one witness I believe
25 will be a probation officer from the United States

549
1 Probation Office. The testimony should be very
2 short. The openings will be very short, and then
3 once that is complete I have a very brief charge
4 incorporating everything we talked about. I'm not
5 going to reinstruct you.
6 You have with you alternate number one,
7 Miss Alexander, she's back. You probably thought
8 you wouldn't get to see her again, but we brought
9 her back on popular demand.
10 This is a serious matter as you know, and I
11 think once you hear the opening statements -- it's
12 a bird's eye view -- it's simply to tell you a
13 little bit more than what I told you. What I say,
14 what the attorneys say is not evidence. What the
15 witness will tell you is evidence, then you go out
16 and do your deliberations, and we'll have you back
17 here and that will conclude your jury service.
18 We thank you again. Sorry we had to bring you
19 back today, but whenever there is important
20 business to both sides, we're all a little bit
21 inconvenienced, but please with an open mind
22 approach your very important duty in this case.
23 Miss Baumgarten, if you will.
24 MS. BAUMGARTEN: Good morning, ladies and
25 gentlemen of the jury. A very little more than

550
1 what the Judge mentioned to you. The government
2 anticipates we will call one witness, a United
3 States probation officer, Scott Kawski. We
4 anticipate the testimony of Probation Officer
5 Kawski to establish not only that the defendant was
6 subject to conditions of release based on his
7 release for another pending criminal matter, but
8 also in particular and most importantly that one of
9 those conditions of release identified the
10 ramifications, the consequences the defendant would
11 face in the event that he committed a state, local,
12 or federal offense.
13 We also anticipate eliciting testimony from
14 Probation Officer Kawski that not only was the
15 defendant released on that condition among a number
16 of other conditions, but that the defendant
17 remained under those conditions of release during
18 the course -- the time frame that the jury's
19 previously considered with respect to the Count I
20 of the indictment. That time frame, as the jury
21 may recall, is September 18, 2008, up to and
22 including January 16th, 2009. So we will hear from
23 Probation Officer Kawski. Thank you.
24 THE COURT: Okay, Miss Baumgarten, thank
25 you. Is there anything that you want to be heard

551
1 on at this point by way of an opening statement,
2 Mr. Buczek?
3 MR. BUCZEK: Sure, Judge.
4 THE COURT: Or do you want until after
5 Mr. Kawski testifies?
6 MR. BUCZEK: Sure. Okay.
7 THE COURT: All right. And then you can
8 talk to Mr. Comerford a little bit in terms of what
9 you might want to say. Fair enough?
10 MR. BUCZEK: Yeah.
11 THE COURT: Okay. Want to call your first
12 witness, please?
13 MS. BAUMGARTEN: Yes, Probation Officer
14 Kawski please.
15 THE COURT: Everybody have an okay weekend
16 I hope? Yes? Okay. Thank you.
17 S C O T T K A W A S K I, having been duly sworn as
18 a witness, testified as follows:
19 THE COURT: Morning.
20 THE WITNESS: Morning.
21 THE COURT: Mr. Witness, I'm going to ask
22 you very shortly to identify yourself, but, as you
23 know, you are here to testify for the benefit of
24 the ladies and gentlemen of the jury. What it
25 takes is basically to keep your voice at a

552
1 conversational tone. Aim at the microphone, that
2 should pick you up. As far as any questions that
3 are asked of you, do not answer a question you
4 don't understand. If you don't understand it, let
5 us know, I'll redirect the attorneys to pose
6 another question or to clarify the question. Don't
7 volunteer information. If there's an objection,
8 wait until I rule on the objection, and then I will
9 give you instructions on whether to answer or wait
10 for another question, do you understand?
11 THE WITNESS: I do.
12 THE COURT: Okay. State your full name,
13 spell your last name please.
14 THE WITNESS: Scott Kawski, K-A-W-S-K-I.
15 THE COURT: Okay. Your witness,
16 Miss Baumgarten.
17 DIRECT EXAMINATION BY MS. BAUMGARTEN:
18 Q. You are employed, is that accurate?
19 A. That's correct.
20 Q. Where is that?
21 A. United States Probation Office.
22 Q. How long have you been employed by the United
23 States Probation Office?
24 A. Ten years.
25 Q. What are your current duties there?

553
1 A. I am a United States probation officer, and my
2 duties include supervising individuals released on
3 bail.
4 Q. What were your duties during the course of 2008
5 through the early part of 2009?
6 A. Would be the supervision of individuals
7 released on bail.
8 Q. All right. Are you familiar with the
9 defendant?
10 A. Yes.
11 Q. How is it that you know the defendant?
12 A. He is under my supervision.
13 Q. When did he first begin being under your
14 supervision?
15 A. May of 2008.
16 MS. BAUMGARTEN: I'm showing the witness
17 what has been marked for identification purposes
18 Government's Exhibits 37 and 38. Those previously
19 were provided to the defense. May I approach, your
20 Honor?
21 THE COURT: You may.
22 BY MS. BAUMGARTEN:
23 Q. Officer Kawski, would you please review
24 Exhibits 37 and 38?
25 A. Sure.
554
1 Q. Are you familiar those documents?
2 A. Yes.
3 Q. If I may direct your attention first to what's
4 been marked Government Exhibit 38. What is that
5 document please?
6 A. 38 is the list of conditions ordered by the
7 judge that -- it's an order setting the conditions
8 of release.
9 Q. All right. Is that a document prepared in the
10 ordinary course of the business, not only of the
11 court, but also United States Probation Office?
12 A. Yes.
13 Q. Is it prepared at or about the time the events
14 within that document occurred?
15 A. Yes.
16 Q. Is it kept and maintained in the ordinary
17 course of the business of the court system, but
18 also the United States Probation Office?
19 A. Yes.
20 Q. With respect to Government's Exhibit 38, does
21 it also contain a raised seal?
22 A. This copy does not.
23 Q. On the front page.
24 A. Yes, it does.
25 MS. BAUMGARTEN: All right. The

555
1 government moves Exhibit 38 into evidence, your
2 Honor.
3 THE COURT: All right. Any objection?
4 MR. BUCZEK: Yeah, Judge, I object. I
5 haven't even seen the evidence yet.
6 THE COURT: That was previously provided
7 to you, but if you want to take a look at it now.
8 It's right in front of you in your binder.
9 MS. BAUMGARTEN: Your Honor, would you
10 like me to get the original that has the seal?
11 THE COURT: No, that's okay.
12 MR. BUCZEK: I see a copy, Judge.
13 THE COURT: Okay. On the basis that you
14 hadn't seen it, I'm going to overrule the
15 objection. It will be received into evidence as
16 Government's Exhibit 38.
17 (Government's Exhibit 38 was received into
18 evidence.)
20 Q. Who prepares that document?
21 A. This is prepared by someone from our office.
22 Q. In this particular instance was that Probation
23 Officer Zenaida Piotrowicz?
24 A. Yes.
25 Q. That was prepared on March 13, 2008, is that

556
1 correct?
2 A. Yes.
3 Q. All right. Where is it prepared?
4 A. In court.
5 Q. What is occurring to the best of your knowledge
6 when the document is prepared?
7 A. When this document is prepared, the judge has
8 decided to release the subject on bail with
9 specific conditions.
10 Q. All right. Is the document signed on page 4 of
11 that?
12 A. Yes.
13 MS. BAUMGARTEN: Your Honor, may we
14 publish the document for the jury?
15 THE COURT: Yes.
17 Q. If I may direct your attention to page 4, is
18 that document signed?
19 A. Yes.
20 Q. By whom?
21 A. By the defendant and by the judge.
22 Q. Who is the judge in this particular instance?
23 A. It would be Judge Schroeder.
24 Q. All right. There's a date also, March 13th
25 date?
557
1 A. Yes.
2 Q. All right.
3 THE COURT: Of 2008.
4 MS. BAUMGARTEN: Yes, March 13, 2008?
5 THE WITNESS: Yes.
7 Q. All right. Why was -- what were the pending
8 charges with respect to the defendant? Do you
9 recall?
10 A. I don't recall on this particular one what the
11 pending charges were.
12 Q. If you would please state the criminal action
13 number into the record please.
14 A. 1-08-CR-54.
15 Q. If I may direct your attention to subdivision
16 one on page 1 of Exhibit 38, would you -- first of
17 all, what is that?
18 A. That is the first condition that the judge
19 orders.
20 Q. Is it a standard or special condition?
21 A. Standard.
22 Q. What is that standard condition? If you would
23 please read it into the record?
24 A. The defendant shall not commit any offense in
25 violation of federal, state, or local law while on

558
1 release in this case.
2 Q. What would occur if a defendant did not sign an
3 order setting conditions of release?
4 A. If he did not sign the conditions of release, I
5 believe the judge would not release him.
6 Q. If I may direct your attention to what has been
7 marked as Government Exhibit 37.
8 A. Okay.
9 Q. Are you familiar with that document?
10 A. Yes.
11 Q. Was it prepared in the ordinary course of the
12 business of the court system and also the United
13 States Probation Office?
14 A. Yes.
15 Q. Was it kept and maintained in the ordinary
16 course of the business of the court system and also
17 the probation office?
18 A. Yes.
19 Q. Was it prepared at or about the time the events
20 and information contained within that exhibit
21 occurred?
22 A. Yes.
23 MS. BAUMGARTEN: The government moves into
24 evidence what has been marked as Government
25 Exhibit 37.
559
1 THE COURT: Okay. Any objection,
2 Mr. Buczek?
3 MR. BUCZEK: Yeah, Judge, I'll just object
4 on the record.
5 THE COURT: Okay.
6 MR. BUCZEK: Object to the conditions, and
7 do you want me to make a formal statement on that
8 or save it for later?
9 THE COURT: No. If it's on the basis of
10 the conditions, I'll sustain -- or overrule your
11 objection.
12 MR. BUCZEK: Okay.
13 THE COURT: But I will receive it.
14 MR. BUCZEK: I think you already know what
15 I'm going to say.
16 THE COURT: Okay. I'll receive it as
17 Exhibit 37 government's, received into evidence.
18 (Government's Exhibit 37 was received into
19 evidence.)
20 MS. BAUMGARTEN: May we publish 37 to the
21 jury? Oh, we already did. Thank you.
23 Q. What does that document relate to?
24 A. This is an appearance bond.
25 Q. Was there a signature on that appearance bond?

560
1 A. Yes.
2 Q. Whose signature?
3 A. Looks like Shane Buczek and Judge Schroeder.
4 Q. Was the defendant released on or about
5 March 13, 2008, pursuant to the provisions of the
6 Bail Reform Act?
7 A. Yes.
8 Q. Did there come a point in time when you met the
9 defendant in order to supervise him?
10 A. Yes.
11 Q. What occurred during that initial meeting?
12 A. The initial meeting is when we review the
13 conditions of release, provide him with copies of
14 those, and the instructions of our office are
15 given.
16 Q. During the course of your initial meeting with
17 the defendant, did you review each and every one of
18 the standard and special conditions that were
19 imposed upon him as conditions of his release?
20 A. Yes. All the conditions are reviewed.
21 Q. Did you have any discussions with the defendant
22 concerning the consequences should he fail to
23 violate any of those standard or special conditions
24 of release?
25 A. Yes, that is a standard practice in our office.

561
1 Q. In the event that the defendant had any
2 questions concerning any of those conditions, what
3 would have occurred?
4 A. They were to ask me, and I would have answered
5 them.
6 Q. Was it on or about March 13, 2008, the only
7 time you had discussions with the defendant?
8 A. No.
9 Q. Did you discuss with the defendant at any other
10 time any of the conditions of his release?
11 A. Yes.
12 MR. BUCZEK: Judge, can I object?
13 THE COURT: Not at this point. There's
14 nothing before the witness.
16 Q. Was the defendant on release under the
17 supervision of the United States Probation Office
18 in September 2008 up to through and including
19 January 2009?
20 A. Yes.
21 Q. Does the defendant continue to be on
22 supervision?
23 A. Yes.
24 MS. BAUMGARTEN: Nothing further, your
25 Honor.
562
1 THE COURT: Okay. All right. Mr. Buczek,
2 any questions?
3 MR. BUCZEK: Yes, Judge, I do.
4 THE COURT: Okay.
5 MS. BAUMGARTEN: The originals are still
6 with the witness, your Honor.
7 THE COURT: Yes. We'll leave them right
8 there at this time.
9 CROSS-EXAMINATION BY MR. BUCZEK:
10 Q. Good morning.
11 A. Morning.
12 Q. I don't think I need to ask your name for the
13 record, but it's -- I'm sorry to eat up your time
14 today, Mr. Kawski. I do want to go back to, real
15 briefly, to the document that we just briefly saw
16 on the screen. I think it was dated March 13th
17 of 2008, Exhibit 38?
18 A. Okay.
19 Q. Do you know -- let me ask you in a different
20 way. You didn't prepare that document, did you?
21 A. No.
22 Q. Okay. You weren't in court when Judge
23 Schroeder ordered that condition on I think it's
24 March 13th, 2008, were you?
25 A. No.
563
1 Q. Okay. You said if the defendant does not sign
2 the conditions, the judge would not release him, is
3 that correct?
4 A. Yes.
5 Q. Have you ever had a situation like that happen
6 before if a defendant would walk into the courtroom
7 would not sign?
8 A. I've never personally, no.
9 Q. Has anybody ever signed under threat of duress
10 and coercion?
11 A. Not to my knowledge.
12 Q. Under these circumstances is it possible that
13 the defendant's signature is not entirely
14 voluntarily when you're looking at possible jail or
15 prison I should say, do you think that maybe
16 possibly they're doing it under threat and duress?
17 A. I don't know what their state of mind is when
18 they sign it.
19 Q. Were you present in the court -- I'm sorry, let
20 me back up a second, I want to go back to Exhibit
21 number 39 real quick, please.
22 THE COURT: 37?
23 MR. COMERFORD: 37, I'm sorry.
24 MR. BUCZEK: 37.
25 MR. COMERFORD: Thank you.

564
1 BY MR. BUCZEK:
2 Q. So you weren't present in the courtroom on
3 March 14, 2008, when the appearance bond was
4 posted, were you?
5 A. No.
6 Q. So you're assuming that the judge told -- told
7 you that -- told me that I was on release under the
8 Bail Reform Act, actually the defendant I should
9 say, sorry.
10 A. Yes.
11 Q. Okay. So you actually didn't hear him do it on
12 audio or transcripts or --
13 A. I was not there, no.
14 Q. Okay. Just a couple more questions,
15 Mr. Kawski. You're here on your public capacity or
16 private capacity today?
17 A. I don't know what you mean by that question.
18 Q. Public or private capacity?
19 A. I'm here because I was subpoenaed by the Court.
20 Q. Okay. Has there been any -- I believe you came
21 down to the defendant's house a few times over the
22 last year or year and a half. Can you briefly
23 recall anything that might have taken place or
24 anything that you can recall at all?
25 A. The conversations regarding the defendant's

565
1 supervision.
2 Q. That's it? That's all you can recall?
3 A. Yes.
4 Q. Okay. Is the United States employees required
5 to have a 1938 Foreign Registration Act, green
6 card, oath of office --
7 MS. BAUMGARTEN: Objection.
8 MR. BUCZEK: -- bond? Judge, I'm just
9 trying to establish authority here, that's all.
10 THE COURT: I'll permit the question. I
11 don't know what the full question is, then I'll
12 entertain --
13 MR. BUCZEK: It's just a yes or no
14 question.
15 THE COURT: Just ask a question, please.
17 BY MR. BUCZEK:
18 Q. Are the probation officers -- actually all the
19 U.S. employees are they required to have some type
20 of Foreign Registration Act? It's called 1938
21 Foreign Registration Act, green card, oath of
22 office, bonding agent, just basic authority? For
23 example, if you have a car, you have to have car
24 insurance, registration. Are the United States
25 employees required to have that?

566
1 A. I don't know the answer to that.
2 Q. That's all, I just want to put it on the
3 record. Mr. Kawski, do you have a claim against
4 the defendant?
5 A. No.
6 Q. Do you know anybody that has a claim against
7 the defendant?
8 A. I'm not sure what you mean by claim.
9 Q. Basically -- well, do you know anybody that has
10 some type -- how do we say it in a way we might
11 understand. Is there an injured party present in
12 the courtroom that can point to the defendant?
13 A. Could you rephrase that?
14 Q. Is there an injured party that you can point to
15 in the courtroom validating the conditions, because
16 you must have an injured party to validate the
17 conditions of release.
18 MS. BAUMGARTEN: Objection, your Honor.
19 THE COURT: Sustained. You've asked the
20 question. It's not a proper question. You may
21 move on.
22 MR. BUCZEK: Okay. Thank you, Judge.
23 THE COURT: You're welcome.
24 BY MR. BUCZEK:
25 Q. Are you -- are you familiar with the violation

567
1 that took place back on August 13th of 2009?
2 A. Yes.
3 Q. I'm sorry, let me rephrase that. It's
4 August 12th, 2009.
5 A. Yes.
6 Q. Can you please give me just a little bit of
7 information of actually what happened on that
8 night? I believe your signature is on here
9 somewhere.
10 MS. BAUMGARTEN: Your Honor, there is a
11 document --
12 MR. BUCZEK: Dated -- yeah, it's dated
13 8/12/2009 signed by Scott Kawski. It's a condition
14 that was alleged bail violation on
15 August 1st of 2009. Are you aware of that?
16 THE WITNESS: I'm aware of that, but I
17 would need something to look at to --
18 MR. BUCZEK: Judge, I have a copy.
19 THE COURT: Okay. You want to mark that
20 as a defense exhibit?
21 MR. BUCZEK: Please.
22 MS. BAUMGARTEN: Your Honor, may we staple
23 it? It's a multi-page document.
24 THE COURT: Sure. Just count the number
25 of pages for the record, please.

568
1 MS. BAUMGARTEN: There are four, your
2 Honor.
3 THE COURT: Okay.
4 MS. BAUMGARTEN: I'm not sure that the
5 defendant is moving it into evidence at this point,
6 or what he's attempting to do, your Honor.
7 MR. COMERFORD: I think it's just for
8 identification at this point. May I approach
9 Mr. Kawski?
10 THE COURT: You may.
11 MS. BAUMGARTEN: Thank you.
12 THE COURT: Okay. Mr. Buczek, any
13 questions?
14 MR. BUCZEK: Yeah, I do have a question.
15 BY MR. BUCZEK:
16 Q. In that particular document, do you recall
17 what -- the events that took place on that day?
18 A. On the date that the document was prepared?
19 Q. Yes.
20 A. The events that took place was I prepared this
21 document and submitted it to the Court.
22 THE COURT: What's the date that you're
23 talking about?
24 THE WITNESS: August 12th, 2009.
25 THE COURT: Okay.

569
1 MR. BUCZEK: Was there any -- any -- I
2 guess I should ask in a different way. Do you
3 recall the conclusion of that -- that alleged bail
4 violation?
6 It's beyond the scope of the timeframe within the
7 indictment, as the date he testified to is in
8 August of 2009. That post-dates the January close,
9 2009.
10 THE COURT: Okay. Stop with that. That's
11 your explanation, that's your objection. Go ahead,
12 Mr. Buczek.
13 MR. BUCZEK: Judge, I'm trying to
14 establish the behavior of the U.S. attorney's
15 office --
17 MR. BUCZEK: -- against the defendant.
18 All these conditions are based on the fruit of the
19 poisonous tree doctrine.
20 THE COURT: Okay.
21 MR. BUCZEK: I'm just trying to establish
22 something here.
23 THE COURT: And that's not a cognizable
24 legal objection for this particular document and
25 it's relevance, so I will sustain the government's

570
1 objection. You cannot use this document, and you
2 cannot further question on that theory. So it's
3 put to rest. You've identified it for the record,
4 and we'll move on.
5 MR. BUCZEK: Okay. Thank you. The next
6 bail violation I believe was dated January 11,
7 2010, are you aware of that one?
8 MS. BAUMGARTEN: Objection, your Honor,
9 same thing.
10 THE COURT: All right. Sustained.
11 MR. BUCZEK: No?
12 THE COURT: No. Not relevant.
13 MR. BUCZEK: Okay.
14 BY MR. BUCZEK:
15 Q. Mr. Kawski, are you aware of the -- I believe I
16 dropped this. This is a long time ago. This goes
17 way back to January 9th, 2009. I believe I dropped
18 off a courtesy copy to your office and Judge
19 Schroeder sometime right around January 8th or the
20 9th of 2009. And that document was document number
21 83 filed -- okay, here it is. It's filed under
22 01/09/2009. It was a 16-page document pertaining
23 to the case number 1:08-CR-00054, and it's -- just
24 briefly, it just talks about my signature. It's
25 notice of rescission of signature pertaining to the

571
1 conditions that we're talking about today. Are you
2 aware of that document?
3 THE WITNESS: I don't recall the exact
4 document without seeing it. You provided me
5 volumes of documents over the course of
6 supervision.
7 MR. BUCZEK: Judge, can I make this as
8 exhibit C?
9 THE COURT: All right. And that's notice
10 of rescission of signature, is that essentially the
11 document?
12 MR. BUCZEK: It's right here.
13 THE COURT: All right. What do you want
14 to do with that, Mr. Buczek?
15 MR. BUCZEK: Basically show him that the
16 conditions that we're talking about today are --
17 are invalid because what I'm trying to get to with
18 Mr. Kawski I've been looking for who has a claim
19 against the defendant, and at this particular time
20 you can't have a condition without a claim.
21 THE COURT: Okay. What I'll do is I'll
22 permit the document to be marked. However, if
23 there's an objection, I will sustain the objection
24 to its use.
25 MS. BAUMGARTEN: There is, your Honor.

572
1 THE COURT: Okay.
2 MS. BAUMGARTEN: The government objects.
3 THE COURT: All right. So you cannot use
4 the document. You cannot further question along
5 those lines. It's not relevant and not material
6 and not competent.
7 BY MR. BUCZEK:
8 Q. Okay. Mr. Kawski, how many times has the
9 defendant allegedly been violated in the last two
10 years, or tried to have been violated?
11 A. Three times I believe.
12 Q. Okay. How many times has the government been
13 successful in violating my conditions?
15 THE COURT: Yeah, sustained. It's not
16 relevant.
17 MR. BUCZEK: Judge, I strongly believe
18 it's bias, I --
20 THE COURT: Okay. Okay. I mean, that
21 will be noted for the record. That's your
22 response. But the ruling remains the same.
23 Objection sustained.
24 BY MR. BUCZEK:
25 Q. Mr. Kawski, I know I should ask it in a way

573
1 that you know my belief system, correct?
2 A. I am aware of, yes, some of it.
3 Q. And maybe it's a little outside the box?
4 A. Outside -- I don't understand what you mean by
5 outside the box.
6 Q. It's not a normal thinking that people would
7 think of -- and in our country I guess.
8 A. I would agree with that.
9 Q. It's kind of odd.
10 A. Yes.
11 Q. And the defendant studies quite frequently, and
12 maybe every now and then -- not all the time, but
13 every now and then might drop off courtesy copies
14 that kind of like refer to the case or cases at
15 hand, is that correct?
17 Relevance.
18 THE COURT: Well, I don't know, maybe it's
19 preliminary, so I'll overrule your objection right
20 now. You may answer that question.
21 THE WITNESS: I don't know the amount of
22 the study, but I do know about the amount of copies
23 that I have, yes.
24 BY MR. BUCZEK:
25 Q. Do you know what -- what the subject matter is?

574
1 A. I have a basic idea what the subject matter is,
2 yes.
3 Q. Okay.
4 MR. BUCZEK: I'm almost done, Judge.
5 BY MR. BUCZEK:
6 Q. Mr. Kawski, I think I left you a phone call --
7 I dropped you a phone call on Friday or Saturday
8 night about coming to court on Monday. And just to
9 basically give you notice that I had to be here.
10 Are you familiar with that phone call?
11 A. Yes.
12 Q. Okay. Good. In that phone call do you recall
13 the message?
14 A. Not verbatim, no.
15 Q. Not verbatim, but you do recall that I gave you
16 notice to be here today?
17 A. Yes.
18 Q. Even though I didn't subpoena you, the
19 government did.
20 A. Yes.
21 Q. Mr. Kawski, do you know the actual definition
22 of -- of defendant?
23 A. Not verbatim, no.
24 Q. Okay. Do you know the actual definition of a
25 person?
575
1 A. Again, not verbatim.
2 Q. Okay. Do you know the definition of Title 28
3 3002 (15) (a), (b), (c)?
4 A. No.
5 Q. The only reason I brought that up, Mr. Kawski,
6 is I believe in the last couple years I might have
7 left something like that to give you my mindset on
8 the corporations and the real party, and all that.
9 Judge, I'm just basically trying to set matters
10 here, my belief system. And in my belief that --
11 without eating too much more of the Court's time,
12 as I'm trying to establish a valid contract of
13 conditions of release, and that has not been met at
14 this time in two years. And if it was signed --
15 and I've done it over and over and over again --
16 that every signature in the last two years have
17 been under threat of duress and coercion. I had no
18 choice, you either signed it or you go to jail. I
19 just want to make a point of it.
20 THE COURT: Okay. If there's evidence of
21 that, you may argue that.
22 MR. BUCZEK: Thank you. I have no further
23 question.
24 THE COURT: Okay.

576
1 THE COURT: Anything?
2 MS. BAUMGARTEN: Just a couple, your
3 Honor.
4 THE COURT: Okay. Just briefly please.
6 REDIRECT EXAMINATION BY MS. BAUMGARTEN:
7 Q. During the course of your employment as a
8 probation officer, have you been present in court
9 when defendants such as this defendant have an
10 initial appearance and conditions of release are
11 set?
12 A. Yes.
13 Q. Based on that experience would you just briefly
14 tell the jury what occurs?
15 A. The judge reads the charges against the
16 defendant, a decision is made whether he will be
17 released on bail or kept in custody. If the
18 decision is made that he'll be released, a set of
19 conditions is picked out by the judge. He reads
20 what those conditions are in court. Our office
21 records those conditions, and when he is released,
22 those are the conditions that he is subject to.
23 Q. The probation officers who are present in court
24 when that process occurs, are they assigned to your
25 unit?
577
1 A. Yes.
2 Q. Are they individuals who actively supervise
3 defendants?
4 A. Not all the time.
5 Q. Would you identify when you speak concerning
6 Shane Buczek, who that is?
7 A. The individual at the defense table with the
8 stars and stripes tie on.
9 MS. BAUMGARTEN: Nothing further, your
10 Honor.
11 THE COURT: Okay. Thank you.
12 MR. BUCZEK: One question.
13 THE COURT: Certainly.
14 CROSS-EXAMINATION BY MR. BUCZEK:
15 Q. Mr. Kawski, we had a trial last week that
16 you're aware of, right?
17 A. Yes.
18 Q. I think it was the issue with bonded promissory
19 note. Have I ever dropped anything off to your
20 office concerning how the banks operate?
21 A. I don't recall everything that's in those piles
22 of papers. I don't know.
23 Q. Okay. So, do you recall anything concerning
24 how banks accept payments as promissory notes?

578
1 THE COURT: All right.
2 MR. BUCZEK: Judge, I'm getting back --
3 THE COURT: It's beyond the scope now,
4 Mr. Buczek. Objection sustained.
5 MR. BUCZEK: Thank you. All right.
6 BY MR. BUCZEK:
7 Q. Mr. Kawski, do you recall on
8 January 16th of 2009, at around 6:00 o'clock in the
9 morning?
10 A. You need to be a little more specific.
11 Q. Do you recall that there was an actual raid,
12 not at my house but at my parent's house
13 January 16th, 2009. Do you recall that morning?
14 A. I do.
15 Q. Was the -- the weather not that great, were
16 they?
17 A. It was wintertime.
18 Q. Yeah, it was a bad day. Do you recall -- I
19 believe you guys had a meeting outside that
20 location somewhere on Route 5?
21 A. Yes.
22 Q. Can you please tell me the discussions that
23 took place?
25 Beyond the scope.

579
1 THE COURT: Sustained.
2 MR. BUCZEK: Mr. Kawski, did you see the
3 actual warrant on January 16th?
4 MS. BAUMGARTEN: Your Honor, objection.
5 THE COURT: Sustained.
6 MS. BAUMGARTEN: Beyond the scope.
7 MR. BUCZEK: I have more questions, but I
8 think I'm -- I'm done, Judge. Thank you.
9 THE COURT: Okay. Thank you, Mr. Buczek.
10 Mr. Kawski, you're excused. Thank you very much.
11 MS. BAUMGARTEN: Your Honor, I'm just
12 going to get the exhibits.
13 THE COURT: Okay. Anything additional?
14 MS. BAUMGARTEN: No, your Honor. The
15 government rests.
16 THE COURT: Okay. 37 and 38 are included
17 in the evidence of the government.
18 MS. BAUMGARTEN: Yes, your Honor.
19 THE COURT: Okay. All right.
20 MR. BUCZEK: Judge, I have a question.
21 Did this make it into the evidence file?
22 THE COURT: It's not in evidence, but it's
23 marked for identification, so your record is
24 protected.
25 MR. BUCZEK: The jury won't be able to see

580
1 this, right?
2 THE COURT: No, they will not. Okay. Is
3 there anything from the defense?
4 Mr. Comerford, you want to talk with
5 Mr. Buczek?
6 MR. COMERFORD: I will, Judge. Just for
7 the record, and I'll supplement it at a later time,
8 we would make a motion to dismiss under Rule 29.
9 Reserve the right to supplement that.
10 THE COURT: Okay.
11 MR. BUCZEK: Judge, I'm going to go ahead
12 and disregard the opening statement. I think the
13 jury has heard enough. I do want to call one
14 eyewitness in concerning this issue, I'm going to
15 call Amanda in.
16 THE COURT: All right. Concerning what
17 issue, Mr. Buczek?
18 MR. BUCZEK: Amanda Buczek.
19 THE COURT: I know, but what issue?
20 MR. BUCZEK: The issue if she has
21 firsthand knowledge of my documents, and everything
22 concerning these conditions of release.
23 THE COURT: Okay.
24 MR. BUCZEK: It's just basically trying to
25 validate the contract that we have that we're

581
1 talking about today.
2 MS. BAUMGARTEN: The government would
3 oppose this particular witness on this point, your
4 Honor.
5 THE COURT: All right. If it's a
6 validation of the contract issue, then I will
7 sustain the government objection, and preclude her
8 testimony.
9 MR. BUCZEK: And I object, Judge.
10 THE COURT: Okay.
11 MR. BUCZEK: As long as it's noted.
12 THE COURT: Okay. With that, the defense
13 rests?
14 MR. BUCZEK: I don't have an eyewitness
15 list in front of me. There was others that would
16 like to take the stand, unfortunately my mom and
17 dad are not here today, they're out of town. I do
18 have serious issues and doubts about this condition
19 that it's -- you know, it's like I got a gun
20 pointed at my head, but I'll rest at this point,
21 Judge.
22 THE COURT: Okay. Thank you. No
23 rebuttal?
24 MS. BAUMGARTEN: No, your Honor.
25 THE COURT: Ready to close?

582
1 MS. BAUMGARTEN: Yes, your Honor.
2 THE COURT: Okay.
3 MS. BAUMGARTEN: Yes, your Honor. Ladies
4 and gentlemen of the jury, the testimony was fairly
5 straight forward, at least I'm arguing that it is,
6 with respect to not only the imposition of the
7 condition of release on the defendant on
8 March 13, 2008, but also that he continued to be
9 under that supervision, including that condition,
10 during the course of conduct that's at issue in
11 Count I of the indictment, that being
12 September 18, 2008, up to and including
13 January 2009. So the government asks the jury to
14 consider the testimony. Also consider Exhibits 37
15 and 38, the signature by the defendant on each of
16 those documents, and additionally, the discussions
17 that Officer Kawski testified regarding that he
18 actually had with the defendant during the course
19 of that supervision. Please find the defendant
20 guilty on Count II. Thank you.
21 THE COURT: Okay. The government's
22 burden, as you know, is beyond a reasonable doubt
23 on the essential elements. We'll talk about that
24 precisely. The defendant is presumed innocent
25 until proven guilty. What you heard the prosecutor

583
1 argue to you is her closing argument, but it's not
2 evidence. Only evidence that you are to consider
3 is that from the witness who testified or any
4 documents -- and any documents that are received
5 into evidence.
6 So with that, Mr. Buczek, is there anything you
7 want to say in your closing argument?
8 MR. BUCZEK: Yes.
9 MR. COMERFORD: One second, Judge.
10 MR. BUCZEK: One second, Judge.
11 THE COURT: Certainly.
12 MR. BUCZEK: Okay. All right. Thank you,
13 everyone. We just heard from Mr. Kawski just now
14 pertaining to these conditions of release.
15 Mr. Kawski has firsthand knowledge of -- actually
16 he doesn't have firsthand knowledge of what the
17 proceedings took place way back on March of 2008.
18 And he was not in the courtroom and he did not
19 prepare the documents. He assumed a presumption
20 that the judge released the defendant on the Bail
21 Reform Act which the judge will tell you is in the
22 element of the government's -- is an element that
23 the government must prove beyond a reasonable
24 doubt. And also the defendant asked Mr. Kawski if
25 there was a claim present in the Court and, of

584
1 course, that has not been established, and it
2 hasn't been established at all in the last week and
3 a half. And I have no further questions. It's up
4 to you to make the right decision. But, on and for
5 the record, Judge, there's no claim.
6 THE COURT: Okay.
7 MR. BUCZEK: No valid claim anyways.
8 Thank you.
9 THE COURT: Okay. Mr. Buczek. Okay.
10 Ladies and gentlemen, it's now a complete case, all
11 right? That's everything that the parties have
12 with respect to Count II of the indictment. And
13 you are now about to enter your final duty, which
14 is to decide the case and the case being Count II.
15 You've already rendered your decision with respect
16 to Count I of the indictment.
17 I will instruct you on the law applicable to
18 Count II. I'm not going to repeat my instructions
19 that I gave you on Friday. But those instructions
20 specifically continue to apply. I've instructed
21 you on your duty as it relates to finding facts and
22 weighing evidence and the credibility of the
23 witnesses, all of that applies here today.
24 It's your continuing duty to adhere to the
25 instructions as you deliberate on Count II. You

585
1 should follow the same method at arriving at a
2 verdict on Count II as you did on Count I, and your
3 verdict must be based exclusively upon the evidence
4 or lack of evidence presented to you. And once
5 again, you must be unanimous in your verdict.
6 You've heard the testimony of Scott Kawski.
7 He's a law enforcement official. He's a member of
8 the Probation Department or probation office. He
9 is law enforcement, if you will, and, again, I
10 remind you the fact that a witness may be employed
11 by the federal government as a law enforcement
12 official, that fact does not mean that his
13 testimony is necessarily deserving of more or less
14 consideration or greater or lesser weight of that
15 of an ordinary witness. It is up to you to give
16 that testimony whatever weight, if any, you find it
17 deserves.
18 Now you know that there's Count II, that's what
19 you are considering. It's -- the indictment
20 Count II is only an accusation. A not guilty plea
21 has been entered to that count. I told you that
22 not guilty plea has also been entered as to
23 Count I. As a result of the not guilty plea to
24 Count II, the burden is on the prosecution to prove
25 guilt beyond a reasonable doubt. And remember the

586
1 definition of reasonable doubt was a doubt based on
2 reason. And that burden with respect to proof
3 never shifts to the defendant, and once again, the
4 reason is the same. The law never imposes on a
5 defendant in a criminal case the burden or duty of
6 calling any witnesses or producing any evidence. A
7 defendant is presumed innocent until proven guilty.
8 I therefore instruct you that the defendant
9 Shane Buczek in this case to be presumed by you to
10 be innocent throughout your deliberation until such
11 time, if ever, you as a jury are satisfied that the
12 government has proven the defendant guilty beyond a
13 reasonable doubt.
14 Count II of the indictment charges Shane Buczek
15 with committing an offense while on pretrial
16 release in violation of the specific statute or law
17 of the United States, Title 18, Section 3147, and
18 that indictment is what I read to you earlier, and
19 that is that Shane Buczek, according to the charge,
20 was on release pursuant to an order dated
21 March 13th, 2008, from this district, the Western
22 District of New York, in case number 08-CR-54 --
23 this case is 09-criminal-121 -- which order
24 notified him of the potential effect of committing
25 an offense while on pretrial release. And further,

587
1 the charge is that from on or about September 18th,
2 2008, to on or about January 16th, 2009, in the
3 Western District and elsewhere, Shane Buczek did
4 commit the offense of bank fraud, which you found,
5 in the manner set forth in Count I in violation of
6 Title 18, United States Code, Section 1344, all in
7 violation of Title 18, Section 3147(1).
8 The indictment is not evidence. I remind you
9 of that again. It merely describes the charges
10 made against Mr. Buczek. It is only an accusation
11 and nothing more.
12 Now here's the elements, the essential elements
13 of the crime. This is Count II. Each must be
14 established beyond a reasonable doubt. First, that
15 Mr. Buczek was released pursuant to the Bail Reform
16 Act; second, that he was notified of the effect of
17 committing an offense while on pretrial release;
18 and third, that he committed an offense while he
19 was on pretrial release, namely, the bank fraud
20 offense charged in Count I for which you have
21 already found him guilty.
22 Now, with respect to that, the government must
23 prove these essential elements by the required
24 degree of proof as I've explained to you beyond a
25 reasonable doubt. If it succeeds in your unanimous

588
1 determination, your verdict should be guilty on
2 Count II. If it fails to prove those essential
3 elements beyond a reasonable doubt, your verdict
4 should be not guilty. And again, to record any
5 verdict it must be unanimous in this case. Your
6 function is to weigh the evidence in the case and
7 determine whether or not Mr. Buczek is guilty on
8 Count II solely on the basis of the evidence or
9 lack of evidence. So your final vote must reflect
10 your conscientious conviction as to how the issue
11 should be decided. Your verdict, whether guilty or
12 not guilty, must be unanimous.
13 After you have reached a unanimous verdict,
14 just have your foreperson, Mr. Bridges, fill in the
15 verdict form that has been given to you. He will
16 sign it and advise the court security officer that
17 you are ready to return to the courtroom with your
18 verdict. As to the questions you answer on the
19 verdict form, your answers must be, as you know,
20 unanimous. Each and every juror must agree before
21 an answer to the question is recorded on the
22 verdict form. I stress that you should be in
23 agreement with the unanimous verdict which is
24 announced in court, and once your verdict is
25 announced by your foreperson, Mr. Bridges, in open

589
1 court and officially recorded, it ordinarily cannot
2 be revoked.
3 This incorporates all of the other charges and
4 instructions that I've given you with respect to
5 Count I. The fabric is the totality, and your job
6 is to carry out your oath, reach your unanimous
7 verdict, determining whether the government's proof
8 satisfies you beyond a reasonable doubt on each
9 essential element of the crime charged.
10 Anything further by way of charge?
12 THE COURT: Okay.
13 MR. BUCZEK: Thank you, Judge.
14 THE COURT: All right. Thank you,
15 Mr. Buczek.
16 Okay. Ladies and gentlemen, what we will do,
17 once again, that's it. You will get the folder
18 relating to this count. We will have our court
19 security officer sworn by Miss Labuzzetta. He will
20 take you in his charge. We will ask Miss Alexander
21 to step aside. You will wait for us until the
22 verdict is rendered, and we need you as the backup
23 in this case, okay?
24 Thank you. You've been terrific. You know,
25 this is important to both sides, so please do your

590
1 duty. We'll be here when you're ready to come back
2 with your verdict.
3 If you would administer the oath, please
4 Miss Labuzzetta.
5 (Oath administered.)
6 THE COURT: I hope some day they change
7 that oath, but it gets the message across. All
8 right. Important case, all right. Please decide
9 it, and we'll wait for you to come back. Okay.
10 Thank you.
11 (Jury deliberations commenced at 10:50
12 a.m.)
13 THE COURT: Miss Alexander, if you just
14 stay as the jury leaves.
15 Okay. You know you are in a utility role here,
16 backup, in case we need your services. We will
17 notify you when the verdict will be delivered to
18 the Court. And you are permitted to be here for
19 that.
20 A JUROR: Okay.
21 THE COURT: Okay. So you want -- okay.
22 Our court security officer Bernie will take you
23 back to the jury assembly room, and we'll have you
24 notified when everything is finalized for today.
25 A JUROR: Okay.
591
1 THE COURT: Thanks for coming in, I really
2 appreciate it. Okay.
3 Bernie, if you wouldn't mind please.
4 (Alternate juror excused from the
5 courtroom.)
6 MS. BAUMGARTEN: Your Honor, as is the
7 normal practice, counsel has reviewed exhibits as
8 does --
9 THE COURT: Mr. Bruce, please.
10 MS. BAUMGARTEN: As does the defendant.
11 It is my understanding that the defendant refuses
12 to sign the exhibit list prior to its submission to
13 the jury with respect to Count II.
14 THE COURT: All right. That's -- that's
15 your prerogative.
16 MR. BUCZEK: Judge, I have nothing in
17 there for them to review.
18 THE COURT: Okay.
19 MR. BUCZEK: And it's just -- just like
20 the trial, they had 30 some exhibits, I had none.
21 And here we go again. I got to at least get
22 something in so they have something to see maybe
23 there's a doubt here, and they have nothing to
24 review. I mean, if -- if -- you know, we got to be
25 like semi-fair.
592
1 THE COURT: All right. In the Count I
2 there was one of your exhibits that was received
3 and did go to the jury room. In this case there
4 are none, but they have to be properly qualified
5 and established and relevant, and they were not in
6 my judgment. But you've made your record, you've
7 perfected that. So, I guess all of that can relate
8 to the appeal process, but, remember what I said,
9 and that's why I gave you Mr. Comerford, because
10 you have to follow the rules. And everybody plays
11 by the same rules. And yes, I know you want
12 certain things in there. I let you make statements
13 so that the -- you know, that kind of thing, but it
14 would not be fair under the rules to allow you to
15 do something that the rules don't permit.
16 MR. BUCZEK: All I was trying to say,
17 Judge, is -- I know.
18 THE COURT: No. No.
19 MR. BUCZEK: All I'm trying to say is that
20 who has a claim against me? Geez, for seven days
21 now I've been asking over and over again. I mean,
22 you're going to find -- which we have an issue who
23 the defendant is. But the thing is that even the
24 defendant has no claim against him. And that's my
25 whole issue, they're not going to be able to know

593
1 what's going on.
2 THE COURT: But see, and this is what I've
3 been trying to tell you all along. The indictment
4 is the charge slash claim against you for this
5 criminal case. I know it doesn't comport with what
6 you view to be a claim. But for purposes of our
7 system, it is a criminal charge claim, if you will.
8 So you have to deal with that, and then, you know,
9 we'll see what happens afterwards.
10 MR. BUCZEK: I understand that. But in my
11 opinion -- I don't want to say I know the law. But
12 in my opinion for anything to be criminal they have
13 to produce a verified affidavit of complaint, and
14 the government has not even come close to doing
15 that, and you know it, I know it, and maybe
16 Mr. Bruce knows it. There is no -- there is no
17 proof of claim. There is no claim. Who has a
18 claim?
19 THE COURT: Okay. But we just talked
20 about that, and this does get repetitious, right?
21 Yeah.
22 MR. BUCZEK: It's on the record, that's
23 all I want.
24 THE COURT: Okay.
25 MR. BUCZEK: But it's -- I mean --

594
1 THE COURT: I know.
2 MR. BUCZEK: I don't know what to say. I
3 can't even get this in the evidence file.
4 THE COURT: Okay. Well, the record I
5 think will also demonstrate your frustration, and
6 if that's enough, I don't know in the end result.
7 But to the best of my ability I've tried to give
8 you your forum to make your case. But it's not
9 enough to qualify the documents and the evidence
10 that you wanted to get in under the rules that
11 apply to criminal cases in the norm.
12 So, stay around. When the verdict -- the jury
13 verdict comes in, we want you here, and we'll go
14 from there.
15 MR. BUCZEK: I do have some comments about
16 the trial, but I will save that for later.
19 MS. BAUMGARTEN: Thank you, your Honor.
20 MR. BRUCE: And Happy Birthday.
21 (Short recess was taken.)
22 (Case resumed at 11:29 a.m.)
23 (Jury seated.)
24 THE COURT: Okay. Thank you for coming
25 back, we appreciate that. We're resumed in the

595
1 case of United States versus Shane Buczek. This
2 proceeding relates to specifically Count number II
3 of the indictment. The government attorneys are
4 back present, and Mr. Buczek as well, and standby
5 counsel Mr. Comerford. So the jury is back here,
6 roll call waived.
7 I did receive a note at approximately -- looks
8 like 11:17 -- I'm sorry 11:19 I think, and the note
9 reads as follows. "We have a verdict." And,
10 Mr. Bridge, I takes it you have the verdict, is
11 that right?
12 THE FOREMAN: Yes, sir.
13 THE COURT: Okay. And you have been
14 authorized by the ladies and gentlemen of the jury
15 to return a verdict on their behalf, and it is
16 unanimous, is that correct?
17 THE FOREMAN: Yes, sir.
18 THE COURT: Okay. If you would give
19 Miss Labuzzetta, please, the verdict form, we'll
20 proceed in the same fashion that we did on Friday.
21 I will review it for form and substance.
22 (The verdict was reviewed by the Court.)
23 THE COURT: Okay. It is in order. If you
24 would return this please to Mr. Bridges, I would
25 appreciate it, Miss Labuzzetta.

596
1 Okay. Mr. Bridges, if you would rise please?
2 THE CLERK: Mr. Bridges, on behalf of the
3 jury, Count II, commission of an offense while on
4 release, how do you find as to the defendant Shane
5 C. Buczek on Count II?
6 THE FOREMAN: Guilty.
7 THE COURT: Okay. Mr. Bridges, is that
8 the verdict that you were authorized to make in
9 open court on behalf of all of the members of the
10 jury?
11 THE FOREMAN: Yes, your Honor.
12 THE COURT: Okay. Thank you. We will
13 accept the verdict form. The verdict is unanimous.
14 Is there anything additional, Miss Baumgarten?
16 THE COURT: All right. Mr. Buczek?
17 MR. BUCZEK: Judge, I'll just put non
18 consent to the verdict based on the ratification of
19 commencement Rule 17(a). And also another issue I
20 just found out over the weekend is there seems to
21 be no concurrence form that twelve people concurred
22 on the indictment, and also the large issue, as I
23 was speaking to Brian, is I think it was Rule 29
24 and there is a -- we'll address that at a later
25 time, Judge. But at this time the defendant does

597
1 not consent to the guilty verdict. Thank you.
2 THE COURT: Okay, Mr. Buczek. Over that
3 objection though the verdict will be recorded and
4 entered in court. It is now dispositive of this
5 case.
6 Ladies and gentlemen, I want to thank you for
7 your service. I know that you had to interrupt
8 your work schedule and your daily schedule both
9 last week and launching this week as well. But
10 that is very much appreciated. Being a juror, I
11 hope from your standpoint, was a positive
12 experience. Frankly, the case is a little bit
13 different type of case, but --
14 MS. BAUMGARTEN: Might we call the
15 alternate back, Judge, if you want to thank --
16 THE COURT: She's already here.
17 MS. BAUMGARTEN: I'm sorry, I didn't
18 realize that, Judge.
19 THE COURT: And actually we could probably
20 put her in the seat. Miss Alexander, do you want
21 to come on up and join the jury? And I think they
22 still remember who you are.
23 Probably been taking lessons from Mr. Humann,
24 she sits behind the bearing column so that I
25 couldn't see her fully. If you go right through

598
1 that gate please, Miss Alexander. And I want to
2 thank you as well, you're the alternate juror, and
3 that's never an easy task, because you fill a
4 utility role. You don't get to do, after all your
5 hard work, the deliberating, and although that's
6 very difficult. I hope from both the jury's
7 standpoint and yours and the alternates that it was
8 a positive experience for you.
9 I mentioned to you early at the outset how
10 critical and important jury service is in our
11 system. I mean, we are one of the very few
12 countries in the world that has this type of
13 system, and what it does is allows all individuals
14 of all beliefs of all types to get a resolve
15 whether the persons agree or disagree with the
16 outcome of the case. At least it presents a forum
17 where individuals, peers, can work together to hear
18 evidence, apply the rules, try to reach unanimity,
19 and resolve the case, and then the process still
20 has light after the return of a verdict, but at
21 least at this level the case is concluded. And
22 it's a tremendous part of our system to have juries
23 and jurors and the opportunity to resolve a case
24 that cannot otherwise be resolved. It's sometimes
25 very, very difficult. But the system I think is an

599
1 invaluable one. Hopefully the experience has been
2 invaluable.
3 We really appreciate the effort that you made,
4 especially coming back today. I know that was very
5 difficult. You worked hard on Friday, and you
6 know, not everybody's happy with a verdict like
7 this in a case. But, you know, doing the right
8 thing from your standpoint is difficult, and doing
9 right is almost always difficult, and it's always
10 more meaningful. Sometimes when you work hard to
11 accomplish a result -- and you did accomplish
12 something, you did come back and you did render a
13 verdict by all accounts, it is unanimous, we're
14 very appreciative of that. You conducted yourself
15 admirably.
16 There are a couple of things that you should
17 know in closing. If you get a chance, what I
18 always do is try to speak with the jurors. I'm on
19 a real tight schedule today, but if you can stay
20 around for five minutes -- you don't have to. I'm
21 not personally offended. Oftentimes jurors have
22 had more than enough of me, so they bolt out of
23 here like lightening. If you would like to stay,
24 I'll just ask a few questions or answer a few
25 questions, whatever the case may be, and further

600
1 thank you for your service, because we profoundly
2 appreciate what you have done. Your foreperson's
3 service, thank you for serving in that capacity.
4 Now, it is under the rules allowable for you to
5 be asked for responses to questions by attorneys or
6 individuals associated with the case, the
7 defendant. But you don't have to answer the
8 questions. You will be given access to leaving the
9 building carefully and quickly, and we do that with
10 all juries. But if you choose to answer any
11 questions, keep in mind that your responses -- and
12 the attorneys know what they cannot ask you. They
13 can't get into things like the deliberative process
14 and what was involved and that kind of thing.
15 Maybe what you thought of the attorneys or what you
16 think about somebody, how he did something or she
17 did something, that's generally the questions that
18 can be approached. But if you choose not to, just
19 do it with courtesy. If you choose to answer a
20 question, remember that you're answering for your
21 fellow members of the jury. And your response
22 should take into account your courtesy to them.
23 And the manner in which you conduct yourselves as
24 jurors does have a bearing on all future juries,
25 because your responses get incorporated into the

601
1 whole realm of jury service, so please keep that in
2 mind.
3 I want to thank the attorneys and Mr. Buczek
4 for the professional manner in which they have
5 conducted themselves during the course of this
6 trial. I hope you are satisfied with the system,
7 and we won't see you for a good long time, because
8 you fulfilled your obligation as jurors, but I
9 think you have a more expansive knowledge now of
10 what goes into the system. This was a
11 comparatively short case. Sometimes probably
12 seemed long, but cases can go on for weeks and
13 months and sometimes more than a year. I mean, you
14 can imagine what kind of an experience that is.
15 But I hope you feel good about what you
16 contributed. We certainly do.
17 I want to thank the court security officers for
18 and my staff for contributing as well. We thank
19 you. Please have a safe trip home. Thank you for
20 your service, and any of you that want to stay for
21 a few minutes, I'll see you in five or ten minutes.
22 Thank you very much.
23 (Jury excused from the courtroom.)
24 THE COURT: Okay. I thank all of you. I
25 wanted to thank you in front of the jury, because I

602
1 think you did comport yourselves with the highest
2 degree of professionalism.
3 Anything from the government?
4 MS. BAUMGARTEN: Yes, your Honor. At this
5 time the government moves to ask the Court to
6 detain the defendant pursuant to Title 18, United
7 States Code, Section 3143(a), your Honor. The
8 defendant -- (a)(1) actually. The defendant has
9 been convicted not only of the substantive offense
10 in Count I of the indictment, but also Count II,
11 your Honor, having committed that offense while
12 he's on pretrial release. At this point, your
13 Honor, while we don't enjoy a presumption based on
14 the nature of the charge, we do ask that the
15 defendant be remanded pending further proceedings,
16 not only with respect to this case, but also the
17 two other trials that are currently scheduled
18 before this Court.
19 While the defendant enjoys a presumption of
20 innocence with respect to those, your Honor, at
21 least as to the, as I understand it, the third
22 trial, it's similar sort of conduct in that it
23 relates to the defendant's -- at least the charges
24 in that case relate to the defendant's failure to
25 abide by conditions of release. That occurred not

603
1 only in this instance, your Honor, but also in that
2 while he had not been convicted. So at this point,
3 your Honor, we ask the Court to remand him.
4 THE COURT: Okay.
5 MR. BUCZEK: Judge I --
6 THE COURT: Go ahead.
7 MR. BUCZEK: I think you already know what
8 I'm going to say.
9 THE COURT: I don't really, but I'll give
10 you the opportunity, Mr. Buczek.
11 MR. BUCZEK: Judge, in this particular
12 case that we just had -- actually now it's been two
13 cases -- there's been no injured party, there's
14 been no damaged party I should say. The alleged
15 debt I believe was $8,800, which the defendant
16 believes was paid for under a bonded promissory
17 note. Maybe it was misguided from other seminars
18 that have taken place. In past the Court has
19 released people on issues like this for issues
20 concerning in the millions of dollars, if I am
21 correct on that, pending sentencing. I've never
22 missed a court date. I bet you I've been to about
23 a hundred court dates in the last five years. Here
24 probably 40 times in the last two years. Never
25 once have I missed a court date. I am preparing

604
1 for my trial on April 4th, that's coming up,
2 in 2010, the passport case, and working on
3 subpoenas as we are talking right now. I'm also
4 preparing for eyewitnesses to come in and working
5 along with the public defender's office right here,
6 Brian. And I also want to just on and for the
7 record, Judge Schroeder already said on page 30
8 that I am not a threat to the United States
9 government at all. And that's on page 30
10 August 20th, 2009, line 21, that he says that. I'm
11 not about to bring down the United States
12 government, that's my finding ending at line 23. I
13 have a copy of that, Judge, and I won't get into
14 deeper into that, but --
15 THE COURT: Well, let me put this aside.
16 MR. BUCZEK: Yes, Judge.
17 THE COURT: All right. Mr. Comerford,
18 anything more you want to say on that?
19 MR. COMERFORD: No, your Honor.
20 THE COURT: Okay. All right. Mr. Buczek,
21 I mean, I've considered the government's argument,
22 I've considered yours. I don't consider you to be
23 a risk of flight or a threat to the government. I
24 will continue you on the release conditions that
25 you're on right now. I think in part it's

605
1 necessary to enable you to adequately prepare for
2 your upcoming trials, and -- however, you will have
3 reporting requirements to make sure that everything
4 remains copacetic, and I'm giving you the benefit
5 under the circumstances, and I believe that you
6 have satisfied me and the burden requirement that
7 you are not a risk of flight or harm.
8 MR. BUCZEK: And I just want to make a
9 record that I strongly, strongly, strongly urge the
10 Court to do -- I think it's called a mistrial.
11 I'll reserve it for another time. And I am -- I
12 am -- I can't begin to tell you how -- and I don't
13 want to make it -- be emotional about it, not only
14 am I innocent, but maybe possibly I was misguided
15 in my administrative work. Should that be a crime,
16 Judge, with no injured party? Because in my mind
17 you know I don't have no intent. Maybe you might
18 understand, maybe the government understands, but
19 there's definitely no intent. Thank you.
20 THE COURT: Okay. Check with
21 Mr. Comerford about the Rule 29 and Rule 33 motion.
22 MR. BUCZEK: Thank you, Judge.
23 THE COURT: Okay. But your record -- the
24 record will so reflect that.

606
1 THE COURT: Okay. What do we have to set
2 datewise, anything?
3 THE CLERK: You would have to set a
4 sentencing date. I was going to suggest the
5 next -- the final pretrial is for the 15th of March
6 that we discuss it then.
7 THE COURT: Okay. We'll do that on the
8 15th.
9 MR. BRUCE: I was just going to suggest,
10 Judge, we adjourn sentencing date until after the
11 second trials.
12 THE COURT: Let's talk about that again.
13 I think that's probably a good suggestion, but
14 we'll talk about it on the 15th.
15 MR. COMERFORD: We agree it's a good
16 suggestion, Judge, and we'll take it up then.
17 THE COURT: Again I thank all of you, and
18 then we'll proceed forward.
19 MR. BUCZEK: Are we still on for
20 April 4th?
21 MR. BRUCE: I thought it was the 6th.
22 THE CLERK: April 6th.
23 THE COURT: 5th is the final conference
24 and 6th is the trial date, right? I think the
25 6th is the trial. Okay.

607
1 MR. BUCZEK: That's enough. I don't want
2 to hold you up anymore. I would like to talk to
3 you, but, you know, I wish I could, but --
4 THE COURT: But the rules. So, you know,
5 live by the rules. But be careful. You're on
6 release. There are specific conditions. Review
7 the release conditions with the probation office
8 just to reinforce them so that, you know, we don't
9 wind up with more problems than we need.
10 MR. BUCZEK: Judge, there won't be any
11 problems. It's just that I have a certain belief
12 system that I'm not a U.S. citizen. I will save it
13 for later. I didn't have the opportunity to
14 reflect on that during the trial.
15 THE COURT: Okay. All right.
18 MS. BAUMGARTEN: Thank you, Judge.
19 * * * * * *
20
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25
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.
10
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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 8, 2010.

MARY CATHERINE BAUMGARTEN,

Michelle L. McLaughlin, RPR,

3 OPENING STATEMENT BY MS. BAUMGARTEN 549

9 CHARGE TO THE JURY 584

10 VERDICT ON COUNT II 595

13 GOVERNMENT EXHIBITS EVD.

1 (Jury not present in the courtroom.)

2 THE COURT: Lets find out. I don't think

3 there's anything that's at issue. Let's call the

4 case. As soon as the jury is here, we will get

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

7 States of America versus Shane Buczek.

8 THE COURT: Government attorneys are here.

9 Miss Baumgarten, good morning.

10 MS. BAUMGARTEN: Good morning, Judge.

11 THE COURT: Mr. Bruce.

12 MR. BRUCE: Morning, Judge.

13 THE COURT: Mr. Comerford, Mr. Buczek.

14 MR. BUCZEK: Morning, Judge.

15 THE COURT: We should get started as

16 quickly as possible in this case. If you haven't

17 received it yet, I have the proposed charge for you

18 to look at. It's very basic. It addresses

19 Count II specifically. It also references the fact

20 that the full charge that I gave on Friday is

21 incorporated into today's charge. There is the

22 proposed jury verdict form. And I think both sides

23 have discussed that at least a little bit with

24 Mr. Moeller. And I think it should be in good

25 stead, good form. And I think we're ready to

1 begin. There will be, if you choose, opening

2 statements. You have one witness?

3 MS. BAUMGARTEN: Yes.

4 THE COURT: That's Mr. Kawski?

5 MS. BAUMGARTEN: Yes.

6 THE COURT: Okay. And there's an

7 opportunity to cross-examine. And if there's any

8 defense case, you let me know.

9 MR. BUCZEK: Yeah, Judge. I just want to

10 add some exhibits into the evidence file. An

12 THE COURT: All right. What's the

14 MR. BUCZEK: The exhibit is

15 August 20th, 2009, transcript from Judge Schroeder.

16 And also another exhibit is an authentication that

17 was authenticated without certified -- I got it

18 authenticated by the DOS and DOJ, and

19 authentication number 0903321-1, and signed by

20 Hillary Clinton and Eric Holder, and that document

21 is pertaining to case number 08-CR-054 and filed on

22 January 9th, 2009.

23 THE COURT: How is that relevant,

25 MR. BUCZEK: It's a notice of rescission

1 of signature on the conditions based on my findings

2 that I filed, which was never responded to. Can I

3 present that to you?

4 THE COURT: No. I don't think so, not

6 MS. BAUMGARTEN: The government's going to

7 object. First of all, we had not seen that.