United States District Court, D. Columbia.
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For GREGORY JOEL SITZMANN, Defendant: Paul L. Knight, NOSSAMAN LLP, Washington, DC.
For USA, Plaintiff: George Peter Eliopoulos, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Sharad S. Khandelwal, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Houston, TX.
OPINION AND ORDER
PAUL L. FRIEDMAN, United States District Judge.
After a 23-day jury trial in April and May 2012, defendant Gregory Joel Sitzmann was found guilty on a single count of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § § 841 and 846. The government alleged that from at least the 1990s to at least 2004, Mr. Sitzmann conspired with numerous other individuals to distribute large quantities of cocaine in a smuggling operation that spanned the United States, Mexico, Canada, Colombia, the Bahamas, Spain, France, Italy, and elsewhere. See Indictment at 1 (Aug. 7, 2008); Third Amended Bill of Particulars (Aug. 11, 2011). Mr. Sitzmann has now moved for judgment of acquittal or, in the alternative, for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. For the reasons explained below, the Court will deny his motion.
I. LEGAL STANDARDS
Under Rule 29 of the Federal Rules of Criminal Procedure, the Court must enter a judgment of acquittal on any offense charged for which the evidence is insufficient to sustain a conviction. United States v. Williams, 825 F.Supp.2d 128, 132 (D.D.C. 2011). In ruling on a motion for judgment of acquittal, the Court must " 'consider the evidence in the light most favorable to the government and determin[e] whether, so read, it is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt.'" United States v. Kayode, 254 F.3d 204, 212, 349 U.S.App.D.C. 127 (D.C. Cir. 2001) (quoting United States v. Harrington, 108 F.3d 1460, 1464, 323 U.S.App.D.C. 431 (D.C. Cir. 1997)). The Court must " accord the government the benefit of all legitimate inferences," United States v. Weisz, 718 F.2d 413, 437, 231 U.S.App.D.C. 1 (D.C. Cir. 1983), and accept the jury's verdict of guilt if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arrington, 309 F.3d 40, 48, 353 U.S.App.D.C. 388 (D.C. Cir. 2002) (emphasis in original) (quotations omitted). Put another way, the Court may grant a motion for judgment of acquittal only where " a reasonable juror must necessarily have had a reasonable doubt as to the defendant['s] guilt." United States v. Weisz, 718 F.2d at 437 (emphasis in original).
Rule 33(a) of the Federal Rules of Criminal Procedure provides that " the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). " [A]ny error sufficient to require a reversal on appeal is an adequate ground for granting a new trial." 3 Charles Alan Wright & Sarah N.Welling, Federal Practice & Procedure § 589, at 547 (4th ed. 2011). A new trial should be granted only if the defendant has shown that " the error was substantial, not harmless, and that the error affected the defendant's substantial rights." United States v. Williams, 825 F.Supp.2d at 132 (quoting United States v. Safavian, 644 F.Supp.2d 1, 8 (D.D.C. 2009)). Whether to grant a motion for a new trial is " a decision committed to the Court's sound discretion." Id. (quoting United States v. Neill, 964 F.Supp. 438, 441 (D.D.C. 1997)).
II. MOTION FOR JUDGMENT OF ACQUITTAL
A. Failure to Prove Venue
Mr. Sitzmann maintains that he is entitled to a judgment of acquittal because the government failed to prove that venue was proper in the District of Columbia.
" The Government bears the burden of establishing by a preponderance of
the evidence that venue is proper with respect to each count charged against the defendant." United States v. Morgan, 393 F.3d 192, 195, 364 U.S.App.D.C. 169 (D.C. Cir. 2004) (citing United States v. Haire, 371 F.3d 833, 837, 362 U.S.App.D.C. 10 (D.C. Cir. 2004), vacated on other grounds, 543 U.S. 1109, 125 S.Ct. 1014, 160 L.Ed.2d 1038 (2005)); see United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir. 2014). Proper venue in criminal proceedings is no mere technicality, having been " a matter of concern to the Nation's founders." United States v. Morgan, 393 F.3d at 195 (quoting United States v. Cabrales, 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998)). " Indeed, the Constitution 'twice safeguards the defendant's venue right: Article III, § 2, cl. 3, instructs that Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed'; the Sixth Amendment calls for trial 'by an impartial jury of the State and district wherein the crime shall have been committed.'" Id. (quoting United States v. Cabrales, 524 U.S. at 6); see United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958) (" The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place." ).
Reflecting these safeguards, Rule 18 of the Federal Rules of Criminal Procedure provides that, unless otherwise permitted by statute or the Rules, " the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18. Where, as here, the statute proscribing the offense does not contain an express venue provision, " '[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.'" United States v. Morgan, 393 F.3d at 196 (quoting United States v. Cabrales, 524 U.S. at 6-7). In a conspiracy prosecution, " venue is proper in any jurisdiction where any co-conspirator committed an overt act in furtherance of the conspiracy." United States v. Watson, 717 F.3d 196, 198, 405 U.S.App.D.C. 137 (D.C. Cir. 2013) (citing United States v. Brodie, 524 F.3d 259, 273, 390 U.S.App.D.C. 66 (D.C. Cir. 2008), and 18 U.S.C. § 3237(a)); see Whitfield v. United States, 543 U.S. 209, 218, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (" [T]his Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense." ) (citing United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)); United States v. Fahnbulleh, 752 F.3d 470, 477, 410 U.S.App.D.C. 18 (D.C. Cir. 2014); United States v. Lam Kwong-Wah, 924 F.2d 298, 301, 288 U.S.App.D.C. 54 (D.C. Cir. 1991). " In determining whether the government has properly established venue, a reviewing court must view the evidence in the light most favorable to the government." United States v. Lam Kwong-Wah, 924 F.2d at 301.
The conspiracy with which Mr. Sitzmann was charged was alleged to have been carried out in numerous states and other nations. But the only connection between this conspiracy and the District of Columbia was a single wire transfer made by one of Mr. Sitzmann's co-conspirators, George Jones, to an individual named Terrence Colligan, who was posing as a fellow co-conspirator. Mr. Colligan, who had agreed to supply 16 kilograms of cocaine to Mr. Jones in Florida, telephoned him there and requested that Jones wire money to Washington, D.C. to facilitate Colligan's travels. In reality, Colligan had become a government informant, and the wire transfer was a ruse orchestrated by law enforcement in part to establish venue in this jurisdiction. Mr. Sitzmann contends that there is insufficient evidence that the Jones wire transfer was part of
any conspiracy to which he, Sitzmann, was a party.
Given the centrality of this wire transfer in establishing venue, a little more detail is necessary. The United States Attorney's Office for the District of Columbia, together with agents from U.S. Immigration and Customs Enforcement (" ICE" ), began investigating Mr. Jones based on information that they learned from their informant, Mr. Colligan. Their purpose in investigating Jones was largely to gather more evidence on Sitzmann. As they were told by Colligan, and as evidence later introduced at trial showed, Jones served as a driver for Sitzmann in the late 1990s, ferrying cocaine from the United States into Canada. As part of its investigation, the government arranged a series of secretly recorded telephone calls between Mr. Colligan and Mr. Jones. At the time, Jones was located in Florida, while Colligan was in the Washington, D.C. area. Mr. Colligan also traveled to Jones' house in Florida in early March 2004 and made body-wire recordings of conversations between the two men. Through these various conversations, the government learned that Mr. Jones was interested in obtaining cocaine to pass on to buyers. Eventually, Jones and Colligan agreed that Colligan would travel from Washington, D.C. to Florida to supply Mr. Jones with 16 kilograms of cocaine. The government intended to supply Colligan with " sham cocaine" as part of a sting and arrest Jones when the transaction was completed. Trial Tr. (4/30/12) at 7-34.
In a March 19, 2004 recorded telephone call, Mr. Colligan asked Mr. Jones to wire $1,000 to him in Washington, D.C. to facilitate his travel to Florida to deliver the cocaine. See Gov't Trial Ex. 40, Tape C1; id., Tape C2. The government had a two-fold purpose in instigating this wire transfer. First, it wanted " to see some good faith from Jones," who had backed out of an earlier drug transaction. Trial Tr. (4/30/12) at 80. Second, and more relevant here, because prosecutors in Florida had shown no interest in investigating Mr. Jones or Mr. Sitzmann, the government conceived of the wire transfer to the District of Columbia as a way of establishing venue in Washington, D.C., based on the principle that venue in a conspiracy case lies in any district where an overt act in furtherance of the conspiracy is committed by any co-conspirator. Id. at 87; Hr'g Tr. (8/16/11) at 55. In response to Colligan's request, Jones directed a longtime friend, Alexander Mesa, to wire the money to Mr. Colligan, who picked it up from a Western Union office in Washington, D.C. on March 20, 2004. Trial Tr. (4/30/12) at 35-40, 136-39. Mr. Sitzmann, who had been jailed in France the previous month, was not involved in the wire transfer. Hr'g Tr. (8/16/11) at 24, 25.
Sitzmann now argues that Jones' wire transfer was not part of the narcotics conspiracy alleged against Sitzmann, or
part of any conspiracy. Citing the established proposition that a government agent cannot be a conspirator, see United States v. Iennaco, 893 F.2d 394, 397 n.3, 282 U.S.App.D.C. 187 (D.C. Cir. 1990); Sears v. United States, 343 F.2d 139, 141-42 (5th Cir. 1965), he maintains, correctly, that no conspiracy existed between Mr. Colligan and Mr. Jones. " Since there could be no conspiratorial agreement between Jones and government agent Colligan," Sitzmann argues, " there was no venue created in D.C. for conspiracy." Defendant's Motion for Judgment of Acquittal or, in the Alternative, for a New Trial (" Mot." ) at 19. The flaw in this reasoning is that the government did not allege that Sitzmann was part of a conspiracy with Colligan at the time-- rather, Mr. Sitzmann was alleged to have conspired with Mr. Jones (and others). See Sears v. United States, 343 F.2d at 142 (" [G]overnment informers may serve as the connecting link between co-conspirators." ). Mr. Jones was led to believe that Mr. Colligan was still part of the same conspiracy. His act of wiring money to Mr. Colligan in Washington, D.C. in order to facilitate the transportation of drugs, the government argues, was an overt act in support of the conspiracy between Mr. Jones and Mr. Sitzmann. The Court agrees.
The government furnished sufficient evidence at trial to prove, by a preponderance of the evidence, that Mr. Jones' wire transfer to Colligan in the District of Columbia was an overt act in furtherance of a conspiracy with Mr. Sitzmann. Two weeks before the wire transfer, Colligan visited Jones in his Florida home wearing a body wire. The recorded conversation between the two men -- during which they discussed the logistics of a proposed drug transaction and during which Jones revealed that Sitzmann had recently been arrested in France-- provides evidence that Jones was working on an ongoing basis with Sitzmann to smuggle drugs. In the conversation, Jones discusses his previous drug trafficking activities with Sitzmann and indicates that on the last occasion the two men had spoken in person, Jones had proposed: " Greg, why don't we try and do something . . . . If you need me to, I'm down here, I don't want to sit here, I'll come and help you." Gov't Trial Ex. 40, Tape B2, at 12. Mr. Jones explained to Colligan that " it's been since nineteen ninety-nine, or two thousand, when I gave him all this money and you know I've told you before we've had a good relationship. . . . And when Greg asked a hundred, I got fifty, when I asked for a hundred he got fifty and it wasn't a problem." Id. at 19. At one point, Jones describes how he traveled to Colombia " to smuggle coke" with Sitzmann. Id. at 22. He later describes smuggling drugs to Canada for Sitzmann by hiding them in the gas tank of his truck. Id. at 23.
The conversation between Jones and Colligan also illustrates that Mr. Jones was aware of Mr. Colligan's drug trafficking cooperation with Mr. Sitzmann and that Jones understood their collaboration to be ongoing. The ongoing interrelationship among the three men is evident throughout the conversation. Mr. Jones mentions that Sitzmann " went to Europe last month and he made, I don't know what he made, he sent me a thousand bucks, sent you five hundred." Gov't Trial Ex. 40, Tape B2, at 14. When Jones then complains that Sitzmann " didn't send me but a thousand" and that " I got no other way to make a living," Colligan responds, " No, I'm dead in the water," to which Jones replies: " I'm dead too." Id. at 14. When Mr. Colligan mentions that he is owed $53,000 by Sitzmann, Jones states that Mr. Sitzmann owes him $100,000. Id. at 8. In apparent reference to future drug transactions, Mr. Jones says: " I didn't know you were coming [to Florida] till yesterday. Everybody promises maybe they're going to do stuff and haven't been
doing stuff. I'd asked you to come a month ago." After Mr. Colligan responds, " I know, but Greg said he was going to take care of it," Mr. Jones replies: " He didn't take care of nothing." Id. at 8. Later, Mr. Colligan relates: " When I talked to Greg and I told him that I'd talked to you, you had some work for him . . . he says it's too cheap. I said . . . 'you know, George asked if I could help him out.' He said, 'I'll take care of that.' OK, that's why I didn't." Mr. Jones responds: " Well he was going to . . . ." Id. at 18. With respect to the drug deal that Jones and Colligan are planning in early March of 2004, Mr. Jones explains that of the " fifteen hundred" he expects to receive, he will keep " 750" for himself and give " 750 to Greg," explaining that " this is for his people that I'm doing business with." Id. at 13.
When Mr. Sitzmann was arrested in France in February 2004, the first person that he notified of his arrest by telephone was Mr. Jones. Trial Tr. (4/18/12) at 56-62; id. (4/30/12) at 24. After Jones was arrested following the sting operation facilitated by Colligan, investigators executing a search warrant for his home discovered property there belonging to Sitzmann and related to drug-smuggling, including " numerous boxes of bank records, corporate records," " information dealing with the purchase and sale of airplanes," " packing material, heat-sealing equipment," and " professional grade leather bags that had false compartments in the bottom," of the type that Mr. Sitzmann had previously described using for drug smuggling to Mr. Colligan and in which he was hiding 7 kilograms of cocaine when he was arrested in France in February 2004. Hr'g Tr. (8/16/11) at 28-30. When Mr. Colligan delivered the fake cocaine to Mr. Jones in Florida in late March 2004, the latter said he was " going to put this in a bag. Going to put it in one of Greg's bags," Gov't Trial Ex. 40, Tape G, at 4, and when Mr. Jones' home was searched, one of the kilograms was discovered in the false compartment of one of those bags. Trial Tr. (4/30/12) at 43-46.
The government's evidence was sufficient to show, by a preponderance of the evidence, that when George Jones wired money to Terrence Colligan in Washington, D.C., he acted in furtherance of the same conspiracy with which the grand jury charged Mr. Sitzmann. Specifically, the evidence indicates that Jones anticipated obtaining cocaine from Sitzmann for resale; that when Jones did not receive it he arranged to receive a substitute batch of cocaine from Colligan, whom he believed to be a fellow Sitzmann conspirator; that the cocaine was " for his [Sitzmann's] people that I'm doing business with" ; and that Jones planned to share half of the proceeds of the sale with Sitzmann, just as he had done after previous drug transactions.
In these circumstances, it does not matter whether Mr. Colligan was a government informant. Nor does it matter whether Mr. Sitzmann knew about or participated in the wire transfer, so long as Sitzmann previously reached a conspiratorial agreement with Mr. Jones -- '" the combination of minds in an unlawful purpose,'" Smith v. United States, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013) (quoting United States v. Hirsch, 100 U.S. 33, 34, 25 L.Ed. 539 (1879))-- and never affirmatively withdrew from that agreement. " Conspiracy is an ongoing offense that lasts, absent one's affirmative withdrawal from the enterprise, as long as any co-conspirator continues to further common ends[.]" United States v. Childress, 58 F.3d 693, 733, 313 U.S.App.D.C. 133 (D.C. Cir. 1995).
Once the government establishes the existence of a conspiracy, the burden of establishing withdrawal from that conspiracy rests on the defendant. Smith v. United States, 133 S.Ct. at 719. Mr. Sitzmann raised a defense of withdrawal at trial, which the jury rejected. Mr. Sitzmann thus was " responsible for the acts of his co-conspirators in pursuit of their common plot." Id. (citing Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). So long as Mr. Jones made the wire transfer in furtherance of his conspiracy with Mr. Sitzmann to traffic in cocaine for profit, venue lies in the District of Columbia. The government demonstrated this to be the case by a preponderance of the evidence.
B. " Manufactured Venue"
Mr. Sitzmann next argues that he must be acquitted because the government violated his constitutional rights by manufacturing venue in the District of Columbia through the ruse of the wire transfer. He made the same argument, which is based on dicta from United States v. Spriggs, 102 F.3d 1245, 1250-51 (D.C. Cir. 1997), in a pretrial motion that the Court denied. See infra at 23-24 & n.7. In reviving the argument, he cites no new facts or supporting legal authority. See Mot. at 20-22; Defendant Sitzmann's Reply to Government's Opposition to Motion for Judgment of Acquittal and Motion for New Trial (" Reply" ) at 4-5. The Court rejects the argument for the same reasons that it explained at length in its ruling from the Bench on September 8, 2011. See Hr'g Tr. (9/8/11) at 36-41.
C. Statute of Limitations
In a prosecution for conspiracy under 21 U.S.C. § 846, the government must prove that the conspiracy continued into the five-year statute of limitations period. United States v. Butler, 792 F.2d 1528, 1531-32 (11th Cir. 1986) (citing 18 U.S.C. § 3282); accord United States v. Lokey, 945 F.2d 825, 832 (5th Cir. 1991). Because a conviction under Section 846 does not require proof of any overt act in furtherance of the conspiracy, United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994), the government need not prove that an overt act occurred within the limitations period -- merely that the conspiracy still existed during that period. See United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009) (" The government satisfies the requirements of the statute of limitations for a non-overt act conspiracy if it alleges and proves that the conspiracy continued into the limitations period." ) (citation omitted); United States v. Wilkins, 354 F.App'x 748, 756 n.10 (4th Cir. 2009) (" Since no overt acts are required to sustain a conviction for a drug conspiracy under 21 U.S.C. § 846[,] the dispositive consideration for Wilkins's limitations claim is whether he withdrew from the conspiracy or the conspiracy ended outside the five-year limitations period." ) (internal citation omitted); United States v. Butler, 792 F.2d at 1532-33 (" [O]n a non-overt conspiracy charge, the indictment satisfies the requirements of the statute of limitations if the government alleges and proves . . . that the conspiracy continued into the limitations period." ); cf. United States v. Hitt, 249 F.3d 1010, 1015, 346 U.S.App.D.C. 16 (D.C. Cir. 2001) (stating that under general conspiracy statute, 18 U.S.C. § 371, which requires proof of an overt act in furtherance of conspiracy, at least one overt act must occur during limitations period).
" [A] conspiracy is deemed to continue as long as its purposes have neither been abandoned nor accomplished, and no affirmative showing has been made that it has terminated." United States v. Seher, 562 F.3d at 1364 (citation omitted); accord United States v. Magleby, 420 F.3d 1136, 1145
(10th Cir. 2005) (" [F]or statute-of-limitations purposes, a non-overt-act conspiracy is not committed simply on the date the agreement is made but is deemed to continue as long as its purposes have neither been abandoned nor accomplished, and no affirmative showing has been made that it has terminated." ) (internal quotation marks omitted).
The indictment in this case was returned on August 7, 2008, and the statute of limitations therefore reaches back to August 7, 2003. Mr. Sitzmann contends that he is entitled to judgment of acquittal because the government failed to present any evidence that the conspiracy with which he was charged continued after that date. He is wrong.
To help explain the nature of Sitzmann's argument, it is well to remember that Mr. Sitzmann's primary defense at trial was that he ceased all drug-trafficking activity within the United States after meeting with Florida prosecutors in the year 2000, after which he smuggled drugs from South America directly to Europe, without transporting them through or distributing them in the United States, or agreeing to do so. See Notice of Filing (June 4, 2012) [Dkt. No. 180], Tab. DD, at 3 (Theory of Defense). A conspiracy to smuggle drugs from one nation to another nation, without any intent to either possess the drugs in the United States or to distribute them in the United States, would not violate 21 U.S.C. § 846. See United States v. Benbow, 539 F.3d 1327, 1330-34 (11th Cir. 2008); cf. United States v. Holler, 411 F.3d 1061, 1064-65 (9th Cir. 2005). In essence, Mr. Sitzmann argues that he withdrew from his previous conspiracy-- which involved contact with the United States -- before the statute of limitations began to run, and that the conspiracy he engaged in afterward did not involve the United States or violate federal law. See, e.g., Trial Tr. (5/16/12 p.m.) at 16-19 (excerpt of defense closing arguments).
Although not required to do so, the government produced evidence at trial of at least three overt acts committed within the United States in furtherance of the charged conspiracy during the limitations period -- one by Mr. Sitzmann, and two by a co-conspirator. It also provided additional evidence that the conspiracy continued into the limitations period.
Because the statute of limitations began to run on August 7, 2003 and Mr. Sitzmann was arrested in France in February 2004 -- limiting the range of his own activities thereafter -- he had a relatively small window in which to commit overt acts in furtherance of the conspiracy within the United States. Making the government's case much easier, however, Mr. Sitzmann admitted to U.S. law enforcement officers during a 2008 debriefing in France that he personally smuggled cocaine through the United States on his way to Europe from Colombia at least once between December 2003 and February 2004. See Trial Tr. (5/10/12) at 16-24, 29-30, 41-42.
The government also furnished evidence of two overt acts performed in furtherance of the conspiracy during the limitations period by one of Mr. Sitzmann's co-conspirators: the March 2004 wire transfer from George Jones to informant Terrence Colligan,
and Jones' later receipt of sham cocaine from Colligan. As described above, Mr. Jones made the wire transfer to help Colligan -- whom he believed to be a fellow co-conspirator of Sitzmann -- deliver 16 kilograms of cocaine to him, the profits from which he planned to share with Sitzmann. See supra at 5-9.
Apart from the wire transfer itself and the cocaine receipt, Mr. Jones' recorded comments to Mr. Colligan in March 2004 and his participation in the cocaine transaction demonstrate that Jones and Sitzmann were still in a conspiratorial relationship in March 2004. In a conversation between Jones and Colligan two weeks before the wire transfer, in which the men planned a cocaine transaction that ultimately did not come to fruition, Mr. Jones explained that the cocaine he would be receiving was for Mr. Sitzmann's " people," whom Jones was " doing business with." Gov't Trial Ex. 40, Tape B2, at 13. Jones further explained that of the $1,500 he expected to earn per kilogram, he would keep $750 for himself and give $750 to Mr. Sitzmann, id., just as, for many years, he had shared half of his drug earnings with Sitzmann and vice versa. Id. at 19. When Mr. Colligan eventually provided Jones with 16 kilograms of fake cocaine, Jones said that he was " [g]oing to put it in one of Greg's bags," Gov't Trial Ex. ...