14 December 2002. Transcript purchased for $45 from Exemplaris.com.
List of daily transcripts: http://cryptome.sabotage.org/usa-v-elcom-dt.htm
1
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3 SAN JOSE DIVISION
4
UNITED STATES OF ) CR-01-20138-RMW
5 AMERICA, )
)
6 Plaintiff, )
) San Jose, California
7 vs. ) December 5, 2002
) McGEE TESTIMONY
8 ELCOM LTD., et al., )
)
9 Defendants. )
_ _ _ _ _ _ _ _ _ _ _ _ _)
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PARTIAL TRANSCRIPT OF PROCEEDINGS
11 BEFORE THE HONORABLE RONALD M. WHYTE
UNITED STATES DISTRICT JUDGE
12
A P P E A R A N C E S:
13
For the United States United States Attorney's
14 of America: Office
By: SCOTT H. FREWING,
15 AUSA
280 South First Street
16 Room 371
San Jose, CA 95113
17
For the Defendants: Duane Morris
18 By: JOSEPH M. BURTON, ESQ
GREGORY G. ISKANDER, ESQ
19 Spear Tower
One Market Street
20 Suite 2000
San Francisco, CA 94105
21
22
23
24 Court Reporter: PETER TORREANO, CSR
License Number 7623
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2
1 INDEX OF WITNESSES
2 GOVERNMENT'S WITNESSES
3 KEVIN McGEE
4 Direct Examination by Frewing P. 3
Cross-Examination by Burton P. 13
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6 INDEX OF EXHIBITS
7 GOVERNMENT'S EXHIBITS MARKED ADMITTED
44 P. 12
8 45 P. 12
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1 San Jose, California December 5, 2002
2 PARTIAL PROCEEDINGS
3 MR. FREWING: Your Honor, the Government
4 calls Kevin McGee.
5 THE COURT: All right.
6 THE CLERK: Raise your right hand.
7 KEVIN McGEE,
8 being called as a witness on behalf of the
9 United States, having been first duly sworn, was
10 examined and testified as follows:
11 THE CLERK: Thank you. Have a seat,
12 please.
13 For the record if you can please state
14 your full name and spell your last name, please.
15 THE WITNESS: It's Kevin J. McGee.
16 M-C-G-E-E.
17 THE CLERK: Thank you.
18 DIRECT EXAMINATION
19 BY MR. FREWING:
20 Q Mr. McGee, with whom are you employed?
21 A The FBI.
22 Q And what's your position with the FBI?
23 A I'm a special agent.
24 Q How long have you been with the FBI?
25 A Two and a half years.
4
1 Q So you were employed with the FBI in the
2 summer of 2001?
3 A I went through the academy in -- the early
4 2000.
5 Q And in the summer of 2001 what -- did you have
6 a particular assignment at the FBI?
7 A Yes. I was assigned to the high tech squad in
8 San Jose.
9 Q And what does the high tech squad do?
10 A Investigates crimes that affect the technology
11 industry, intellectual property, copyright
12 infringement, high tech cargo theft, that sort
13 of -- those sort of infractions.
14 Q Were you involved with an investigation of a
15 company called Elcomsoft?
16 A Yes, I was.
17 Q How did you get involved in that
18 investigation?
19 A I got involved when I started to assist
20 Special Agent Dan O'Connell in the ongoing
21 investigation.
22 Q At some point did you have an opportunity to
23 attend a conference in Las Vegas as part of that
24 investigation?
25 A Yes, I did.
5
1 Q What conference was that?
2 A That was the DEFCON 9 conference.
3 Q And what is the DEFCON 9 conference?
4 A DEFCON 9 conference -- the DEFCON conference
5 is an annual conference held in Las Vegas primarily
6 for the hacking community.
7 Q Is it only for hackers?
8 A I imagine there's also security-type personnel
9 there. People with an interest in computer
10 security as well as the hackers.
11 Q What type of venue was it held in?
12 A It was held at a hotel and convention center.
13 Q The -- pardon me just one moment.
14 A Sure.
15 Q What type of events did you observe taking
16 place at the DEFCON conference?
17 A In various conference rooms had presentations
18 being given. There was also some flea market of
19 sorts with T-shirts and different computer items
20 for sale. There also was a game, king of the hill
21 type of game for hackers where the different
22 attendees were attempting to gain control of the
23 computer and it was a sort of competition taking
24 place throughout the resort.
25 Q And did you observe any evidence that at least
6
1 some of the individuals at DEFCON were cognizant of
2 law enforcement's potential presence at the
3 conference?
4 A This was a game that they played throughout
5 the conference called spot the fed where -- it was
6 a lighthearted game where they attempted to
7 identify whether one attendee or another was an FBI
8 agent or a federal officer. And I was present
9 while that was played on one occasion.
10 Q Did they identify you as a federal officer?
11 A No, they didn't.
12 Q Now, did you observe any speeches given at the
13 Elcomsoft conference?
14 A I observed the Elcomsoft presentation.
15 Q And generally what was the Elcomsoft
16 presentation?
17 A It was primarily a presentation about the
18 Elcomsoft eBook Reader and eBook security in
19 general.
20 Q Who gave that presentation?
21 A That was Mr. Dmitry Sklyarov.
22 Q What language did he give it in?
23 A English.
24 Q Did Mr. Sklyarov indicate whether Elcomsoft
25 was distributing the Advanced eBook Processor
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1 program?
2 A He was -- he indicated that they had
3 distributed it or were selling it, but they were
4 now giving out a demonstration version while at the
5 conference.
6 Q And what date was the conference?
7 A I believe it was July 15th, 2001.
8 Q Did Mr. Sklyarov indicate whether Elcomsoft
9 had been selling the program?
10 A I believe he said they had priced it at $100.
11 He may have stated that they were not selling it at
12 that time.
13 Q Did he indicate that they had been selling it?
14 A I think he did.
15 Q Did Mr. Sklyarov demonstrate the program?
16 A He did.
17 Q Did Mr. Sklyarov indicate whether the program
18 would remove all protections from an electronic
19 book?
20 A He gave a demonstration in which he showed
21 that that, in fact, happens with the program.
22 Q Now, during this conference did you regard
23 yourself as being undercover?
24 A Yes.
25 Q And did you wear a recorder or any kind of
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1 recording device?
2 A Yes, I wore a recording device.
3 Q Now, at any point during the conference either
4 before or after Mr. Sklyarov's speech did you have
5 an opportunity to speak with him in person?
6 A I did.
7 Q And how did that occur?
8 A He welcomed questions from the attendees at
9 the conclusion of his speech at which point I went
10 up and engaged him in conversation.
11 Q Were you the only person that approached him?
12 A I was not.
13 Q Now, did you overhear some of the questions
14 that others asked him?
15 A I did.
16 Q And did you overhear his responses?
17 A I did.
18 Q Did anyone ask him about the ability of the
19 Advanced eBook Processor to be used to obtain
20 printed material that one was not suppose to have
21 access to?
22 A Yes.
23 MR. BURTON: Your Honor, I guess I'm
24 going to object on hearsay because I don't see the
25 relevancy -- if it's not hearsay, I don't see the
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1 relevance.
2 MR. FREWING: I believe it's an admission
3 of a party which Mr. Sklyarov must be.
4 THE COURT: I agree. I'll allow the
5 question.
6 BY MR. FREWING:
7 Q So do you remember the question?
8 A Yes.
9 Q Go ahead.
10 A The person standing on my left asked if you
11 could print stuff you should not print to which he
12 replied yes.
13 Q Did Mr. Sklyarov indicate whether one could
14 obtain the full functional AEBPR program at the
15 conference?
16 A I questioned him in a manner to find out if it
17 would be available to me. He said that it was not
18 available at the conference. So I questioned him
19 further on whether I could meet him somewhere and
20 purchase it or if it would be available in the
21 future and he led me to believe that he did hope to
22 have it back up for sale within the week upon his
23 return to the Soviet Union or Russia.
24 Q Now, while were you in Las Vegas or at any
25 point in this investigation did you have an
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1 opportunity to speak with an Andre Malyshev?
2 A Yes, I did.
3 Q And was that in your undercover capacity?
4 A No, it was not.
5 Q What capacity was it in?
6 A Just as an FBI agent.
7 Q And did you identify yourself as an FBI agent
8 to Mr. Malyshev?
9 A I did.
10 Q Did Mr. Malyshev indicate whether he was
11 employed at Elcomsoft?
12 A He did.
13 Q Did you ask him whether he had participated in
14 the development of the Advanced eBook Processor?
15 A I did.
16 Q And how did he respond?
17 A He told me that Mr. Sklyarov was the only
18 person to have developed that program at Elcomsoft.
19 Q Did Mr. Malyshev indicate why he was in Las
20 Vegas?
21 A He traveled to assist Mr. Sklyarov with the
22 presentation at DEFCON.
23 Q Did Mr. Malyshev indicate whether Elcomsoft
24 had sold the program, the Advanced eBook Processor
25 program?
11
1 A He told me that they had sold it for $100, but
2 he also stated that it wasn't their intent to make
3 money off of it.
4 Q Did Mr. Malyshev explain how -- why they were
5 selling the program if they didn't intend to make
6 money?
7 A He didn't.
8 Q I'd like to show you what's been marked as
9 Government Exhibit 44. I'll ask you to look at
10 that and see if you recognize it.
11 THE CLERK: Is that 44?
12 MR. FREWING: 44.
13 THE WITNESS: It's a copy of a tape of
14 the presentation of Mr. Sklyarov that the FBI
15 obtained through grand jury subpoena.
16 BY MR. FREWING:
17 Q And have you had an opportunity to review that
18 tape?
19 A I have.
20 Q And does it accurately represent the
21 presentation that you saw at the DEFCON conference?
22 A It does.
23 MR. FREWING: Your Honor, I'd like to
24 move Exhibit 44 into evidence.
25 MR. BURTON: No objection.
12
1 THE COURT: 44 is admitted.
2 (Whereupon, Government's Exhibit Number
3 44, previously marked for identification,
4 was admitted into evidence.)
5 BY MR. FREWING:
6 Q I'd also like to show you what's been marked
7 as Government Exhibit 45 and ask you to take a look
8 at that.
9 Do you recognize that?
10 A Yes, I do.
11 Q What is it?
12 A It's a disk containing Elcomsoft demonstration
13 softwares that I picked up immediately following
14 Mr. Sklyarov's presentation that he offered to
15 audience members.
16 Q And is that that actual CD you obtained from
17 Mr. Sklyarov?
18 A Yes, it is.
19 MR. FREWING: Your Honor, I'd like to
20 move Government Exhibit 45 into evidence.
21 MR. BURTON: No objection.
22 THE COURT: 45 is admitted.
23 (Whereupon, Government's Exhibit Number
24 45, previously marked for identification,
25 was admitted into evidence.)
13
1 MR. FREWING: I have no further
2 questions.
3 THE COURT: Okay. Mr. Burton?
4 MR. BURTON: Thank you, Your Honor.
5 CROSS-EXAMINATION
6 BY MR. BURTON:
7 Q Agent McGee, while you were in an undercover
8 capacity at DEFCON did you have occasion to make
9 any consensual monitor -- not consensual, but
10 undercover monitoring of the conversations?
11 A Yes. I wore a recording device for
12 Mr. Sklyarov's presentation and the conversation I
13 had with him immediately following that.
14 Q So the conversation that you described to the
15 jury that you had with him after, you recorded
16 that; is that correct?
17 A That's correct.
18 Q Okay. And you still have that recording?
19 A The FBI has that recording.
20 Q The FBI has that recording?
21 A Yes.
22 Q All right. When you -- you indicated that --
23 that there was a game. You called it a
24 lighthearted game of something, find the fed?
25 A Spot the fed.
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1 Q Spot the fed; is that correct?
2 A Yes.
3 Q Did that indicate to you that -- that persons
4 at DEFCON believe that federal agents might also be
5 there?
6 A Sure. I think -- you know, it was done in a
7 lighthearted way. It just gave me the impression
8 that they were aware that federal officers might be
9 present or that they should be concerned for some
10 reason that federal officers might be present.
11 Q Okay. Have you ever been to a DEFCON
12 conference other than this one?
13 A No, I haven't.
14 Q Have you been to any other security
15 conferences -- strike the question.
16 Had you been to any other computer
17 security conferences besides DEFCON?
18 A No. Just training.
19 Q Okay. Are you familiar with the conference
20 called Black Hat?
21 A I am familiar with it being a computer
22 security conference, but not beyond that.
23 Q Okay. Do you know who the participants in
24 Black Hat are?
25 A I don't.
15
1 Q Okay. Do you know if the participants in
2 Black Hat are the same or different than the
3 participants in DEFCON?
4 A I don't know.
5 MR. BURTON: Okay. That's all the
6 questions I have.
7 THE COURT: Okay. Anything further?
8 MR. FREWING: Nothing further, Your
9 Honor.
10 MR. BURTON: Your Honor, I'm sorry.
11 Subject to recall.
12 THE COURT: All right. You're excused
13 for now then.
14 THE WITNESS: Thank you, Your Honor.
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