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Eric McDavid Update and Court Report from 9/12

by Sacramento Prisoner Support Friday, Sep. 14, 2007 at 6:43 PM

Report of court proceedings from 9/12

Yesterday was the third day of Eric's trial. Below is a very long, detailed report about what happened. Here is a quick summary:

The day started with Mark's (Eric's lawyer) cross examination of Anna, the Cooperating Witness in the case. This lasted all morning, and continued on after lunch. After Anna's testimony, the government called FBI Agent Matt St. Amant, a member of the CHP and the JTTF who participated in the arrest. After a quick testimony from St. Amant, the government called Ricardo Torres, an FBI agent from Philadelphia who was also Anna's handler. Mark finished his cross of Agent Torres and we adjourned for the day.

Please remember that we will not be in court again until Monday, September 17. The government has indicated that they will be calling Lauren Weiner on Monday, and we expect Zachary Jensen to follow. Court starts at 9 am at 501 I Street, 15th floor, Courtroom No. 3. We would love for everyone to come and show their support for Eric. It's been really great for him to have so much love and strength backing him up during this last week. Please remember to come dressed appropriately for court. You will need your ID to get into the courthouse. We cannot have food or drink in the courtroom, and please remember to turn off your cell phones! Also, please keep in mind that it is in the best interest of Eric's case that no one talk to or engage with the media.

Also – Eric is still being denied vegan meals! Please keep calling the jail and request that Eric be provided with food he can eat. When you call be prepared to sit through lots of transfers and ringing. The person who made the decision to deny Eric food is Lt. Ilg. You can also request to speak with his superior, Scott Jones. Make sure you have Eric's X-ref number handy: x-2972521.

Jail administration: 916-874-6905

You can also try writing:

Captain Scott Jones

651 I St.

Sacramento, CA 95814

-----------------------------------------------------------------------------------------------------

Court Report from 9/12/07

The morning began with Mark’s cross examination of Anna. She confirmed that she met Eric in August of ’04, but had been undercover prior to that time. Mark then brought out his first exhibit – an email that Anna had posted on a militarywoman.org website in July of 2002, stating her interest in military counter intelligence. At this point in time, Anna was 15 years old. She said that it had “always been a dream” of hers to join the military. When Mark asked her about this statement she responded that it had been a goal for her when she was younger, but that her goals changed. The online post also said that she would be enlisting in a few weeks. You can read these online posts at: http://militarywoman.org/forums/search.php?searchid=5827

Mark then began to move back through the timeline of her undercover career. She was undercover at FTAA, which she agreed was a “political protest.” She affirmed that she knew she would have to assume a role to do this. She also said that she knew there was violence between the police and the protesters at the event and that there was a lot of media about it. When Mark asked her about police misconduct, she responded “I think the city handled it very well.” She affirmed that she had to sneak in to the planning meeting, and had to fool the other protesters to be involved. From here Mark jumped forward to her interview with the FBI in Sacramento in November 05. At this interview, which was not recorded, Nasson Walker gave Anna instructions on how to conduct herself during her investigations. She stated that she considered this information to be important, but that she did not take notes. She reaffirmed those instructions from her previous testimony- don’t be a leader, don’t give instructions, don’t push or cajole, don’t manufacture. Then Mark returned to the timeline. In late November/early December of 03 the FBI asked her to do work for them. It was her first official job for them – the RNC, DNC, and G8. She clearly stated “my job was not to look at political protesters” but at “certain violent segments.” When asked if she had any law enforcement training at that time, she said no. When asked if she has had any law enforcement training at this time, she said no. She made it clear that she was not an agent, but that her mission was to keep her eyes open for illegal activity and to observe. She did not keep a log, but reported back to the FBI through real time with cell phone calls and text messages. She said she participated in protests at the G8, which is also where she met Zachary Jensen. She said she witnessed a breakaway march, which she claims was allowed to disburse. Anna stated that she was “relieved” that she hadn’t been found out at the end of the protest. Next she went to the DNC, where she had adopted the persona of a medic because she knew that protesters needed medics and perceived them to be people in a responsible role. Anna has had no formal medical training. When Mark asked her how she handled this, she told him that she wore the attire, but if someone approached her for help she would “pass them off” to someone else. Next she went to Des Moines Crimethinc, where she met Zach and Eric. She affirmed again that her role involved A LOT of lying. She spent 3 days in Des Moines with Zach and Eric, sleeping upstairs in a farmhouse with them. She said she couldn’t recall whether Eric slept right next to her. She stated that at this time, she viewed Eric as non-threatening, inconsequential, and that he looked “gentler” than the other people there. Because of this she buddied up with him. Despite viewing Eric as “inconsequential” she nonetheless reported back to the FBI about him. She exchanged emails with Eric and they agreed to see each other in New York for the RNC. At the RNC she reunited with Eric and Zach and spent just as much time, if not more, with them. She claimed that during the RNC Eric made comments about illegal activities, which she reported, but after the RNC she did not report him as someone that needed to be followed. She then claims to have had no contact with Eric until June 19 of 05. Mark then asked her why she would have written people in May asking about him. (He had an email from someone whom she had emailed in May asking Eric's whereabouts) She responded that, at the request of the FBI, she was attempting to use old contacts to get back into protest circles. In the email Mark was referencing, she had written about the Halliburton protest and said, “i'd love to have a party, if you know what i mean” “You gonna' come play with me, then?” In the same email string she wrote “Do you guys need anything? Supplies, paint, chains, nails, pipe, anything? Tar and Feathers? Like I said, disposable income, so ask around all your contacts. It'd be safer to bring from outside as well. So what are we gonna do? :)” Mark referred back to the guidelines she mentioned in her previous testimony and asked if this was a “suggestion.” Anna responded that it was a “question about what supplies they might need.” Mark asked if Eric had written her love letters, to which she responded that he had indicated his interest in her between August and May. Anna told Weiner in January of 06 that Eric had written her three love letters. Mark then asked her about a meeting on Weiner's balconey during the bio conference in Philly. She said that she did have an interaction with him on the balconey, just the two of them. She affirmed that he had written her a love email on October 26, so she was aware of his feelings for her in October of 05. Anna said she couldn't recall if he had written her previously. As a CS, she was supposed to give the FBI any important communications, so Mark pressed her about where the other 2 love letters had ended up. She said she couldn't recall. Mark asked her if she spurned Eric's advances and she said that answer would require an explanation. But it is clear that he did not tell him to knock off the romance talk in her email response. She claims that she was in the process of leaving her work with the FBI when she was in Philly, but soon after she went to West Virginia to pick up Eric and they traveled to Crimethinc in Bloomington, IN, where she reported on activities there to the FBI. Mark pointed out that Anna claimed Eric was on their persons of interest list in Sacramento, and now instead of tracking him down they could have Anna watch him. This was before the FBI had given her any instructions on conduct. In her testimony on Tuesday, Anna claimed that Eric had voiced approval at Bloomington for blowing up federal buildings. Mark then referenced a conversation in January in which she asks Eric about that statement and he tells her he wasn't at that skillshare. Mark asked her if she wanted to get something on tape about it, which she affirmed. But the opposite happened, he said. Correct, she said. Then they went back over her testimony about Ryan Lewis. She said that Eric told her Lewis had done his action too close to home, and if he was going to do something it wouldn't be so close to home. Anna was not wearing a body wire at this time, which means this conversation is not recorded and the only “proof” is her word. Mark then got her to agree that she had to be very good at deception, at participating in a lot of lies. He asked her what kind of training she had received on how to lie. None. What classes on how to lie? None. He asked her if it was a difficult thing to do, lying all the time. She said yes, but she overcame it.

The cross then moved to the meeting in November of 05. Mark questioned her on conversations that she had with Weiner about the meeting. She said that Weiner initially expressed reluctance about coming out to California due to money problems. At first Anna said that she never saw them with large sums of money, but then stated that they often had expensive equipment, such as camping gear. Since the FBI wanted her on the west coast, Anna volunteered to pay for Weiner's plane ticket with the understanding that Weiner would pay her back for it. But Anna even went so far as to pay for Weiner's cab fare. She said she didn't recall that, but in an email she clearly states that she will. In one email she states “I'm taking care of everything. Trust me.” On November 4, Anna sent Weiner an email stating that she had an “awesome, devious” plan to get them all to California.

Mark then referenced several conversations between Weiner, herself, and Eric in which she was complaining that Eric was “selfish” for not being willing to take a day off from “family time” to meet with the group.

At this point Anna had not received any specific instructions from the FBI on how to conduct herself, only general. Mark asked her if they went over the attorney general's instructions with her. She said that they had gone over the instructions with her in a telephone conversation from the Philly FBI office in October or November of 05, but did not provide her with a copy of the guidelines. She says that they have not talked to her about them since, including in the last two weeks. She said that Agent Ricardo Torres was her “handler” and that he was theone responsible for her following the rules. She claims that he did go over them with her in June of 05, as did the agents in Miami before her work there. She said she has never read the entire section. The age requirements state that a person must be no younger than 18 (she was 17). She affirmed that she was not supposed to go to stricly political meetings or report on people doing strictly political things. She said she signed an “FBI Admonishments” form in Miami and Philly. In December of 05 she was granted Otherwise Illegal Activity authorization (OIA), which gave her approval to participate in criminal activity. She claimed she had not engaged in any criminal activity prior to this, but then admitted she had sat down in the street at G8 at one point.

At the November meeting, Anna picked Weiner up at the airport, and Zach in Sacramento to drive them to Eric's family's house. There was no agreement at this time to use the ELF tag, according to Anna. There were no specific dates set, and no decisions about what to use. They did decided that they would reconvene in January, after the New Year. They were given specific “tasks” to work on at the meeting. Jensen was tasked with honing his “ninja warrior” skills. Weiner was tasked with procuring the book Poor Man's James Bond, which contains various explosive recipes. Anna was tasked with finding them a place to live.



In January, Anna drove Weiner and Jensen across the country in her car to California. Mark asked her if she remembered a conversation between herself and Jensen in which Jensen said “D is not our leader.” she said yes. He then asked her if she remembered Jensen saying “you're our leader.” She said she doesn't recall. When Mark said “The FBI had asked you to come to California to get these guys going on something” she replied “correct.”

Mark then returned to the meeting on the balconey at Bio. She said that Eric had expressed romantic feelings for her at Bio. In a conversation between Anna and Weiner, Anna says “I kinda' called him on how much he had changed. And he said, yeah well, I had a lot of big influences. I asked him “like what?” And he goes, “you for one” I about near fell over and died. 'I knew you for a week!' So...” at which point Weiner stated, “cause he loves you...”

Mark then asked Anna about the recipes she had provided the group in the so-called “Burn Book.” According to Anna, all the recipes were duds – created by explosives experts at the FBI. After reaffirming that everything she did was to prevent her being found out, she claimed that she wasn't concerned that Eric would realize the recipes were duds.

When Mark asked Anna who paid for the group's supplies – who physically reached in to their pockets and paid, she responded that she did. After an immediate objection from the AUSA, and a nervous glance in the AUSA's direction, she changed her answer and responded that the money came from Eric and Weiner's pockets. She claimed that the group had a jar for money and shared costs.

Anna claimed that her undercover operation was planned to last an entire month. Asked why it was ended so abruptly, she claimed “the group moved so fast we didn't need a month.”



Mark then moved the conversation to an event that took place on January 10, when the group saw Eva Holland (one of the people involved in the arson with Ryan Lewis) at a cafe. Eric was visibly shaken by this event, and, as Mark said, it probably harkened him back to his original statements to Anna about not wanting to do anything too close to home. Anna admitted that Eric was concerned about this event and that her attempts to comfort him didn't relax him.

When Anna reiterated that she was feeling “excluded” from the group, Mark asked her what might have happened if she left the group. He made the point that she was not about to be physically pushed out of the group. He talked about the groups inability to get something done, which Anna confirmed. He said it was “late in the game and you're feeling uncomfortable,” to which she replied “true.” He said “you name it you've been able to fool them,” and she again responded “correct.” She said she just didn't feel like she could handle the stress for the rest of the month. Anna claimed that she never felt like they were going to ask her to leave and keep the cabin for themselves. She kept referring to the arguments the group had as “growing pains.” She then claimed that when she left the cabin on the night of the 12th, after the big argument, that she found out the FBI was already planning on arresting them the next day.

Mark asked her if the group's attitudes toward her had changed. She said yes. He asked her if there was something going on, if she was trying to get them to do something they didn't want to do. This was in reference to the event on the 12th when the group allegedly attempted to prepare a mixture for an explosive. Anna insisted that Weiner and Jensen came out to the porch on their own to participate. Mark had Anna confirm that she was trying to get everyone to identify targets and work out a schedule – that they had schedules they weren't following and that she asked them why. She affirmed that when she left the evening of the 12th to meet with the FBI that she was concerned they would find her out.

AUSA's rebuttal

The AUSA asked Anna if the “plot” was falling apart. She said no. She said that after she left that evening, the group prepared a new schedule to structure their days and that they followed it the next morning. She said the group was irritated with the CHP stop the day before. The fact that the group would be arrested the following morning greatly reduced her stress. Then the AUSA asked Anna if anything else happened the night of the 12th to increase her stress again. Anna then claimed that she woke up in the middle of the night with Eric waving a knife over her head. She claims that Eric then said “I'm sorry” and left, and that she went right back to sleep.

AUSA then asked Anna about the encounter with Eva Holland. She said she was aware of certain elements of ELF that would commit violence against snitches, and claimed that Eric told her Eva was a snitch. She claimed that she never had any romantic relationship with Eric, and that she had discussed how to handle his advances towards her with the FBI. The FBI had her fill out a behavioral analysis of Eric and returned to her a series of responses she could give for his advances. She said that both Weiner and Jensen had indicated romantic interests in Eric. She referenced a conversation between Jensen and Eric in which Jensen said to Eric “when you get drunk, you get horny.” Eric replied “yes, but you like it.” She also said that Eric indicated a romantic relationship with another individual, and that she thought Eric, Jensen and this other individual were in a relationship together. She reiterated that Weiner and Eric slept in the master bedroom together, and that Jensen later moved into the bedroom with them, sharing the queen bed between the three of them. She then said that Eric had made advances towards her in November and that she had used the FBI's talking points in that conversation.

AUSA then asked Anna about the instructions given to her by the FBI regarding her conduct as an undercover. She said that when she was asked questions by people in the group that she was allowed to respond. Since Eric had asked her directly for bomb recipes, she was allowed to get them. She was directly instructed by the FBI to bring the group out to California in November. The FBI had become concerned (with the addition of Jensen and Weiner to the group) about the growth of the group and wanted to see how serious they were. She admitted that she was a minor when she started her work, but that she got special approval to continue. She said that every communication she sent to the group was vetted by the FBI after she became a CW (cooperating witness). The reason she wasn't wearing a body wire early on was because she didn't change her status from CS to CW until November of 05, and a CS is not allowed to wear a wire. She said that she did do contemporaneous reports at that time, however. She purchased a plane ticket for Weiner with the understanding that Weiner would pay her back for it. Weiner indicated in her emails that she was saving money for their trip out west. Anna claimed that Weiner started the conversation about Eric being “selfish” for not wanting to take a day off from family time for the meeting, and that the “stressed vibes” she was getting from him stemmed from his “dealing with family issues.”

AUSA asked her about the online posting to militarywoman.org. She said that she did have an intention to join the military early in her life because she wanted to do “patriotic service” to her country. It was the same for her work with the FBI. She claimed again that she had no expectation of being paid for her work, and that there was no contract for payment. She simply did it because it was “the right thing to do.”

Mark's Redirect of Anna

Anna admitted there were some transcripts she hadn't reviewed. Mark asked her how many times the group used the word “plot” (the prosecution used this word continuously throughout their time with Anna), and she said that Eric did not use that word, but that they did use the word “cell” and “conspiracy.” He asked her why she would have reason to lie on the militarywoman.org website, and she said that she had none. She said when she wrote that she intended to join the military in a few weeks (she was 15 at the time and would not have been able to join), it was just a misunderstanding. She thought she was joining the JROTC. But she did not. He then asked her if she got the feeling that Eric was going to back out after seeing Holland at the cafe. She said no. She did say “I suppose it could have” when Mark asked her if that event might have made Eric feel like backing out. She said she got training on how to handle Eric's advances in November of 05 – this was after Bloomington, after the event in Philly, and after Eric's email to her in October. She said the email is what made her seek out advice. She said she was still working for the FBI when she lost the other two love letters. She affirmed that she did have to report anything significant from Eric to the FBI.

Mark then asked her if she went right back to sleep after Eric allegedly waved a knife over her head the night of the 12th. She said “Correct.” She said she had not seen any written reports of the event. Anna testified that she had no contract for payment and said again that she had no expectation of payment. For the end of her testimony the government played a tape of Eric and Anna in the car, which she characterized as a record of Eric coming on to her and her putting him off. The tape was a converstion with Eric asking about the mixed signals Anna was sending him and her continuing to lead him on. At one point she says:

A: I definitely, I don't not like you. I don't really like you- I definitely like being around you- our energies really mesh well together

E: mm

A: what you said at bio I thought was nice, and appropriate

E: mhm

A: twim souls

Later on

A: we're just. All of us are just friends and all of us aren't together and all of us, I mean one of us doesn't like the other person, we all just love each other

E: yeah

A: and I like that

E: yeah

A: and I'm not sure if I'm ready to add that kind of relationship, sexual dynamics that kinda'.....to screw it up

E: ok

A: I'm not sure if I'm ready to do that yet

E:no I totally hear that

While the tape was playing Anna stared at Eric and grinned, almost to the point of laughing.She said “I was instructed to placate him the best I could without shooting him down”



then Anna stepped down.

Government Examination of Matt St. Amant

The next witness was California Highway Patrol officer Matt St. Amant, who is part of the Joint Terrorism Task Force in Sacramento. He testified that when Eric was arrested he had a small knife with a caribiner on it on his belt. Mark asked him if that was catalogued in evidence and he said yes.

Government Examination of Ricardo Torres

FBI special agent Ricardo Raphael Torres was the next to testify. He was Anna's handler at the Philadelphia FBI. He testified that he put out a call to the FBI for informants to use at the Biotech protest in Philly. He said that they did this because “people associated with anarchists, the ALF and the ELF engaged in violent actions” at the biotech protests in San Francisco, such as riding their bikes through traffic. The Miami FBI responded to his request with Anna. Torres said that she was “tasked to work within the anarchist elements of the protesters” and to “get out their and see who was going to do bad things to the city”. Torres said she was “extremely helpful”. His example was that there were allegedly protestors who had bottles of bleach that they were going to throw on cops. He said she alerted him and he alerted the police who sent in snatch squads to get the individuals. He also talked about the cop that died of a heart attack and said he died because he was “wrestling” with protesters. He said that some people felt sad about it and wanted to have a vigil and the people that were glad that the cop died went to the “Lost Film Festival” where they were showing films on how to make molotov cocktails. Mark objected to that comment and the judge ordered the jurors to strike it from their memory. Torres said that Anna's two tasks were to report on people at the protest and stay as close to Eric as possible and report on his movements, plans and associates. Torres said that he did an FBI database search and found out that Eric was wanted for questioning in Sacramento. He testified that after Anna dropped Eric off in Chicago she called him and told him that Eric was planning a bomb campaign in winter of 2006 and that he had threatened to kill her if she was a cop. He said that she was not wearing a wire because she was still a (CI) confidential informant. Torres testified that they made her a (CW) cooperating witness when they found out that Zach and Lauren were involved and that she was then allowed to wear a wire. Anna testified that at this time she was living in Pennsylvania. Torres testified that at this point the FBI ordered her to get Eric, Lauren and Zach together to “set the stage for a meeting of the conspirators”. Torres testified that Eric wanted bomb recipes from Anna. Torres testified that he and Anna looked at “open source” information on explosives on the internet” and then met with Philly FBI bomb experts to create a recipe for something that was just an initiator, meaning that it will create a small flash that would only work if it were next to a large amount of explosives.

Torres said he was at the FBI command post the evening of the 12th, monitoring the activities inside the cabin in real time during the argument the group had. He said that Anna was extremely upset and crying when she arrived at the post. Torres told Anna they were going to arrest the three the following day.

The AUSA then asked Torres if an incident happened later that night. Torres said that Eric was hovering over Anna, “twiddling” a knife. He claims that he then called her cell phone, which she kept on vibrate on her chest while sleeping, to wake her up. He said he was leaving the post for the cabin when she woke up, said something to Eric, and Eric left.

Mark's Cross

Torres said he had last had FBI training in 2003 at Quantico. The original training to become an agent took 4 months, but there is additional training required to become an undercover. He said there is a “cameo role” provision that allows someone to do a brief stint as an undercover without additional training. Mark, in reference to the training, said, “there is a reason for that, right?” to which Torres responded, “yes.” Anna did not go to training, but did have a “discussion” with an undercover agent about the job. Mark then asked about the Attorney General's Guidelines on the Use of Undercovers, and stated that Torres would need to know them so he wouldn't violate them, which Torres affirmed. Torres stated that he had not read all of the literature on informants, and that he was not aware of the Office of Inspector General's (OIG) report from 2005 on FBI informants (a particularly damning report about the use of undercovers by the FBI). Mark asked Torres when was the last time he had read the Attorney General's guidelines, to which Torres responded, “12:45 this afternoon.” He said that the Philadelphia office had faxed them over to the AUSA's office and that he had reviewed them prior to his testimony. He said that he didn't recall anything in the Atty. Gen. Guidelines about political protests, but that it might be in the FBI's guidelines. He stated that they could send informants to political protests with cause, and that it only violates the guidelines if they record it. As her handler, Torres was responsible for Anna and for making sure she did not violate the guidelines. When asked if Anna was allowed to solicit people to come to political protests, Torres said he didn't know. When asked if an informant can't do anything that an agent can't do, Torres again responded that he couldn't recall. When asked if the rules allow a CI (confidential informant) to do things an FBI agent can or can't do, Torres responded “I don't know.”

Nasson Walker and Torres discussed general guidelines with Anna, but he couldn't recall if there were any rules about entrapment. Neither Torres nor Anna took notes from that discussion, and they did not give her a copy of the guidelines. He claimed that Anna did not sign a contract with the FBI because the FBI doesn't have informant contracts. Torres claimed she can't sign an agreement because they need to protect her ID. He claimed that the document they went over with her was two pages long. Mark asked if they maintained a file on Anna, and Torres got visibly uncomfortable. He said that they do, that they gave the defense everything in discovery, and that the “official” copy is in Philadelphia.

After this exchange, the witness was excused and the jury left.

Other Matters Before the Court

At this time, the government stated that they might have to ask for jury instructions that nothing Anna did was illegal. The judge made it very clear that he would not issue jury instructions until the very end of arguments, when he had the whole picture of the case in front of him. He then went on to say that the entrapment defense requires a clear showing that the defendant was not “predisposed” to commit a crime, which he stated has nothing to do with the presence of government misconduct.

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