UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, October 22, 1993 Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S THE COURT: What are we up to, continuing Armenia, or have we ended him? MR. OSTROWSKI: Well, a couple of house cleaning matters. Starting with Armenia, Your Honor, I would ask the Court to exclude the question by Mr. Kitchen about the FBI. Basically, let's assume that he says, yes, I told people I was an informant, and yes, I am an informant, Mr. Kitchen cannot possibly prove in this trial under the laws of evidence and the collateral rule that you can't bring in extrinsic evidence to prove a collateral matter, that he is or he isn't. So it's essentially meaningless. THE COURT: Well, whether he is or isn't isn't at all relevant. I suppose the only pertinency is whether if he isn't and says he is, then you have a question of, is he prone to make misstatements. MR. OSTROWSKI: But what I'm saying, Your Honor, is, how is Mr. Kitchen going to prove -- THE COURT: Well, that's a separate problem. MR. OSTROWSKI: -- that he isn't. But that's the whole, that's the whole point, because he can't prove it in this trial. THE COURT: Well, so he has nothing then, right? He ends up with a big fat zero. MR. OSTROWSKI: Well, except that in the event that Mr. Armenia is in fact such an informant, it could be very embarrassing, it could be dangerous, it could be prejudicial to an investigation. MR. KITCHEN: Well, Your Honor -- THE COURT: That's why I guess whereas he must have said he wanted to talk with the Judge, I thought he was saying that he had to talk with the agent. MR. OSTROWSKI: Well, I -- THE COURT: Which would be what I would think I would do if I were in that situation. I would want to talk to my boss, the guy who has me on the string. MR. OSTROWSKI: And the second thing I'd like to bring up before Mr. Kitchen speaks is, what is Mr. Kitchen's basis, does he have a good faith basis, I think that that's an appropriate question, does he have a good faith basis that Mr. Armenia has in fact made such statements because I seriously doubt that he does have a good faith basis, and does he have any basis at all for believing that he's not in fact an informant. THE COURT: Well, suppose he brings in evidence he has made that statement. That's not at all pertinent. MR. OSTROWSKI: I don't, I don't think that that's -- THE COURT: That's not at all relative to the case, unless he were to take it further and then prove that in fact Mr. Armenia was not and should not have had any basis for thinking that he was. And then, of course, you get into the situation of Armenia being a liar. MR. OSTROWSKI: Your Honor, one of -- THE COURT: But in that case, we have to try a whole, whole trial within a trial, and I don't think I'll lend myself to that. MR. OSTROWSKI: Well, that's the one thing I remember from law school evidence course, Your Honor, that you cannot bring in extrinsic evidence to prove a collateral matter affecting credibility unless it goes to bias. MR. KITCHEN: Well, Your Honor, I appreciate the fact that Mr. -- THE COURT: Well, anyway, I don't see we're going anywhere on it. I'm not going to strike it. All you have is a question, an unanswered question. MR. OSTROWSKI: Well, what I want to know is if Mr. Kitchen wants him back because -- MR. KITCHEN: Yes. Yes. Because I have obviously some follow-up questions. If the Court would require me to disclose my basis for the questions, I'd be happy to do so. I think the basis -- THE COURT: On that same point? MR. OSTROWSKI: I'd certainly like to hear it. THE COURT: On that same point? MR. KITCHEN: Oh. My other questions? THE COURT: On that same point of the FBI? MR. KITCHEN: Yeah. Well, I think there would be obvious follow-up questions to that, regardless of whether it's -- THE COURT: I would thing the obvious thing is to let the whole thing just go plop on the courtroom floor and forget about it. MR. KITCHEN: Well, that might be fine for a jury, but with a bench trial, Your Honor, I just feel a, the Court's more discerning than that. I -- MR. OSTROWSKI: I think the opposite. MR. KITCHEN: No. I think it is, I think it is relevant. First of all, I think the answer to, to the question -- THE COURT: Well, so what. If it's proven to me that he lied on one single thing, important though it may be -- MR. KITCHEN: No, Your Honor. THE COURT: -- what's that got to do with -- MR. KITCHEN: No, Your Honor. THE COURT: -- the day to day running trivia as it developed, but in its mass, of course, is not trivial. It had nothing to do with that. MR. KITCHEN: Your Honor, no. There's much more to it than that. This is not -- the basis for my asking the question is not based on one tiny incident of him, of him using a little braggadoccio. It is, it is in fact him announcing that to other people, people who have, whose names have already come up in connection with this case. MR. OSTROWSKI: Well, who are they? THE COURT: Well, does, are you contending that the fact that he has generally and with people involved in this case made that bragging assertion, does that affect at all the case, his relationship with any of the parties, his relationship with any of the witnesses, those other witnesses' testimony? Are they awed by the fact that Armenia is working for the FBI so that they bend their testimony? MR. KITCHEN: Well, it has, I think it has had an effect on others who have been involved in business dealings with Mr. Graham, and perhaps, and also with Mr. Armenia. I -- THE COURT: Had no effect on you to have this FBI informant telling you what the Penal Law is. MR. KITCHEN: Well, of course, I didn't know he was an FBI informant when he was in my law office, Your Honor. I, really, I think the fundamental question this morning is, is this a legitimate area of inquiry. If it seems to lack legitimacy because of the lack of a good faith basis, I will, I will outline what our good faith basis is. But, but that being the case -- MR. OSTROWSKI: Well, that's what I'm asking. You can't say, Joe Smith raped somebody in 1989 without having a good faith basis. You can't say somebody is lying about a very important thing, a very specific thing, without having a good faith basis. MR. KITCHEN: I haven't said he's lying about anything. I haven't said he's lying about anything. I asked him a simple -- MR. OSTROWSKI: If he's not lying, it's irrelevant. MR. KITCHEN: In that case all he has to do is answer the question. I mean, you know -- MR. OSTROWSKI: It's not relevant then. MR. KITCHEN: It seems, it seems that because Mr. Armenia isn't here right now that, oh, this is -- THE COURT: Well, he -- MR. KITCHEN: -- this is an area we shouldn't be getting into. THE COURT: He impliedly answered the question by saying, I have to talk with, he said the Judge, I thought with somebody else, before I'll answer it. That implies to me that he had some sort of a relationship with the FBI. Otherwise, why would he want to talk with anybody about it? MR. KITCHEN: Well, Your Honor, with all due respect, I -- THE COURT: And I don't see that it matters a hoot in hell. MR. KITCHEN: Well, Your Honor, I, I think essentially that was an initial question for what would be a line of questions along this line, or would be tied to that particular subject, which I, which is a legitimate course of inquiry, and I should have been allowed to do it, you know, yesterday. I understand the prudence of the Court for the sake of Mr. Armenia to permit him to talk to others before he would answer the question. Fine. He should have that opportunity. Then he should come back here, sit down there and address that question. I don't see what the problem is. THE COURT: What was in my mind is, of course, that in fact he might have been doing something like that in connection with a certain investigation, and to have this exposed would blow some sort of an investigation. That was what's concerning me. MR. KITCHEN: That would, that would concern me, too, Your Honor, and if this were something where this was just a rumor, that would be. But the basis of our, of the question is that he has revealed that, that he was an informant, on more than one occasion, to more than one person, in such a way that would suggest that secrecy is not all that particularly important. And -- MR. OSTROWSKI: Who has he revealed it to? MR. KITCHEN: He revealed it to my client. He revealed it to this Mark Abacci. He revealed it to at least another individual that, that we found out then secondarily that the person is making inquiries about whether or not Mr. Graham has employed somebody who's an FBI informant. And that appeared apparently on the electronic mail. So -- THE COURT: All right. Now, the thrust of this, all of this being proven, means what to the trier of fact? MR. KITCHEN: Well, it's, I think -- well, first of all, let's assume that Mr. Armenia is not an FBI informant. Then, then I think it's a legitimate course of inquiry to first of all establish that, have him state that he isn't, and ask him why he has essentially used this falsehood, this deception, or said this, or said what he did, you know, what was it meant to convey, and that sort of thing. Now, if it, if -- THE COURT: Was it to your knowledge or information used by way of levering certain situations, of trying to give him some pre-eminent position in any person to person relationship? MR. KITCHEN: Yes. I think that's, and frankly I think that his, his manner and his style of doing business and conducting his own affairs suggest that this, this is a, this man is an opportunist. And I think that this is a legitimate area of inquiry, to find out how he might have used this representation or misrepresentation for his course of inquiry. Now, on the other hand, let's assume that he is an FBI informant, and by the way, I have no idea whether he is or he isn't. In fact, the only thing that would suggest that he is not an FBI informant is the fact that he has told people he's an FBI informant. But in any event -- THE COURT: Well, that's true. That's pursuasive. MR. KITCHEN: Yeah. But, but the, in any event, let's assume that he is an FBI informant. The fact that he has told a number of people suggests that secrecy is not important to either his health or the situation that he's supposedly an informant at. Then I might want to find out more, to what extent, what he was informing the FBI of, related to Mr. Graham's business and other things directly related to the case, and secondarily, whether his status as an FBI informant is, is as a result of maybe an ongoing investigation, accusation or perhaps conviction for crimes or other criminal activity. THE COURT: Of whom? MR. KITCHEN: Mr. Armenia. Because that is, after all, probably the chief source of FBI informants, presuming. MR. KITCHEN: Well, they wouldn't be seeking to put any criminality upon Mr. Armenia if they were employing him as a tool to, a tool of investigating, would they? MR. KITCHEN: What I'm saying is, is that FBI informants probably more often than not are criminals. THE COURT: Oh, sure. MR. KITCHEN: Right. THE COURT: That's the leverage that gets them in there. MR. KITCHEN: Exactly. And so, if that -- THE COURT: But now, taking that, suppose he's a criminal. If he's been convicted of a crime, you could show that. MR. KITCHEN: Yes, sir. I -- THE COURT: But if he's committed a crime, you can't. MR. KITCHEN: That's, that may be -- THE COURT: Unless it's, unless it's a crime that's so much of a fingerprint of what's, anything that's happened here, that I would take it as being demonstrative, you know, of something. MR. KITCHEN: That's right. If the accusation or investigation against him involves fraud and that sort of thing, you know, that, that directly touches upon, see, or something involved with computer, you know, some sort of misconduct with regard to computers. I, I think this is a legitimate course of inquiry. I wanted to open the door to that inquiry with this question about being an FBI informant. I did not want to essentially go in the back door, the side door, or anywhere else. I wanted to go in this door, and I think this was appropriate. I think, I'm conviced of the appropriateness by the reason of that it caused him a deep concern when I asked the question. And I think I'm allowed to follow up, and I think we need Mr. Armenia back to do that. If he needs to consult with somebody in the meantime, so be it. Maybe he'll want to take the Fifth. I don't know. THE COURT: Well, he can't take the Fifth. Being an FBI informant is not a crime, so -- MR. OSTROWSKI: According to Mr. Kitchen, it is. Well, I don't care. If Mr. Kitchen wants to chase the red herring, it's fine with me. THE COURT: Now, why don't we do this. Why don't you, ex parte, give to me a, one or two pages as to what you, sort of an offer of proof, ex parte, to me. MR. KITCHEN: Right. The only thing I can't offer proof on, except in a speculative manner, is if he in truth is an informant or in truth is not an informant. I mean, I can outline as I've just done here what my -- THE COURT: Well, but you can argue from that, you know, as you've already said, the fact that he may have told 10 people that he is, is fairly well indicative that he isn't. MR. KITCHEN: I will provide this, Your Honor. THE COURT: Yeah. All right. MR. OSTROWSKI: Your Honor, on the matter of the expert witness, I would like to ask Mr. Kitchen if he has any further argument. I do have -- THE COURT: Did you, what did you give to Mr. Kitchen? MR. OSTROWSKI: Well, I gave him an outline of the witness' testimony and where he works, and so on. MR. KITCHEN: Yes, Your Honor. MR. OSTROWSKI: Can I also say, I do have a note as to what was said before and after the so-called break. I can make it available, but just, it's very short. Basically, what I have is that Mr. Graham says, but I also told you, then there's a break, and then Mr. Graham says, going faster and better, and once these disks were selling at discounted rate. Now, reading that without the break is, but I also told you going faster and better and once these disks were selling at discounted rate. Seems to me that there's something missing in there. Maybe just one word. I don't know. MR. KITCHEN: Well, or maybe three words, when we were, or something like that, which would, you know, make it a, maybe a coherent sentence. Mr. Ostrowski did give me a little outline. I'm not sure of the fellow's first name, is it Vince? MR. OSTROWSKI: Kim. MR. KITCHEN: Oh, I'm sorry. Kim. MR. OSTROWSKI: Did I -- MR. KITCHEN: Kim Ferullo. And, of Chameleon Communications. And says that the tape -- THE COURT: Of what? MR. KITCHEN: Chameleon. THE COURT: That's a nice word for a courtroom. MR. KITCHEN: I thought so. COURT RECORDER: Can you spell Ferullo. MR. KITCHEN: F-E-R-U-L-L-O. Says that he would say that the tape is either an edited copy from which something was taken out, or the original was altered by pressing the record button momentarily. Well, frankly, if I had to choose between those as the only two alternatives, I guess my guess would be, after listening to it myself, that it sounds like the second alternative makes more sense. But in any event, Your Honor, what I, what's being attempted to -- what this expert witness is being called to do is to essentially impeach the tape recording evidence. The problem with that is that we're not the ones who introduced the tape recorded evidence. It didn't come before this Court in the trial until cross examination, and, in which case the defense brought it in and introduced it. Now, before the defense was allowed to play it, I had called up and demanded that they be introduced into evidence. And I believe after some colloquy it was Mr. Ostrowski who said, okay, he offered them into evidence, and I, we didn't object. So now they're in evidence, put into evidence by the defense. Now the defense is going to call an expert witness, saying that there's something wrong or defective or misleading with the evidence that they in fact introduced. This seems akin, Your Honor, to attempting to impeach your own witness. And there seems to be no basis for it. They've had an opportunity to listen to a copy long beforehand, although it apparently was a little quiet, or whatever, but they've, but it apparently was at least listenable enough so that they now have since said that the glitch on the original is the, also on the copy. So it suggests to me that this is essentially what they're doing is they've attempted now to introduce evidence, the tape evidence, and now have attempted to impeach that evidence, supposedly as some demonstration of something. But I believe it's impermissible, Your Honor. MR. OSTROWSKI: Well, I disagree. I think all we're just trying to show is that the plaintiff tampered with evidence in the trial. All that legal gobbley-gook -- THE COURT: He didn't tamper with evidence because it wasn't evidence. Did he tamper with it after it became evidence? MR. OSTROWSKI: He tampered with it before it became evidence. And it's his own statements. If we're impeaching anybody, it's the plaintiff. We're impeaching his statement. But I don't think that's the proper way to look at it. I'm introducing expert evidence on physical tampering with a disk. I don't think it's a question of impeaching. MR. KITCHEN: But tampering, tampering with a tape that we haven't offered as evidence, they have offered this tampered, defective tape -- MR. OSTROWSKI: That's why we offered it. MR. KITCHEN: -- into evidence. And now they say, aha, this is tampered and defective. THE COURT: You mean, at the point you offered it you were contending or had it mind it had been tampered with? MR. OSTROWSKI: Yes. Among -- well, there are state -- THE COURT: Well, there was no mention of that at the outset. MR. OSTROWSKI: Well, there are statements in there that we believe are helpful to our case, but we also wanted to -- THE COURT: The general conversation, yes. The fact of the telephone conversation, the fact of the recordings, and to some extent, the content of the conversation. MR. KITCHEN: Well, then it becomes collateral, Your Honor. I mean, what if, what if just for the sake of argument, Mr., Mr. Graham was a bit of an audiophile and could, could draft from whole cloth some, some tape that was absolutely completely phony, false, and with a little tape editing and that sort of thing, came up with a whole tape that would do that, and that we've provided the tape to the other side, but when we put on our case, we don't introduce the tape into evidence. We don't offer it as evidence on behalf of plaintiff's case. And so, you know, what status is it in? Can it then be offered by the defense and then said, aha, what are you trying to pull. I mean, what, you know -- MR. OSTROWSKI: Isn't this like the 19th century rule, that you can't impeach your own witness? I mean, I think the modern Federal Rules are not that way anymore. I don't know where you're getting these, this law from. THE COURT: Well, you can put it stronger than that. The Federal Rules are not that way anymore. MR. OSTROWSKI: Well, I do mostly State Court practice, Your Honor, but I know that the Federal Rules are generally the modern trend in any particular area. MR. KITCHEN: Was it the -- THE COURT: Not only that. You as a member of the bar of this Court know the Federal Rules and you know what they say. MR. OSTROWSKI: All right. I have studied them, Your Honor. MR. KITCHEN: Well, Your Honor, Your Honor, I realize that Federal Rules are much liberalized and all for good, Your Honor, but was it really the intention in liberalizing that, that rule, which was sometimes misused, to simply allow a person to put somebody on the stand for the purpose of impeaching their testimony? I mean, that's, that's preposterous. A person advances evidence in support of their case. And if we don't offer a tape in, in support of our case, how can the tape be used against us? I mean, what, what is the implication of this, that we're trying to misrepresent something to the Court? We weren't. We didn't present the tape to the Court. This is even assuming there's something intentional about the glitch in the tape, which of course we claim is absolutely untrue, or that the words missing are of any import whatsoever, in any event, even if it were intentional. Now, having, having said this all, I think we're so far off into a collateral area that this entire question of the tape just needs to be, you know, put aside. If Mr. Ostrowski objects to the, to the tape, maybe the tape should be stricken, to the extent that it's been made a part of this case. But -- THE COURT: No. It's in and the fact of the telephone call initiated by Mr. Graham is important to the trier of facts, and the content of the telephone conversation is important, and consequently, if there be any monkeying around with it, I have to assume that's important also. I still fall back to what I was saying yesterday, that I don't really see the need for an expert in the context, but then maybe I'm aggrandizing myself. Maybe an expert is needed. MR. KITCHEN: Your Honor, I also point out, too, that it doesn't seem to be clear as to who had the custody of the tapes. Mr. Armenia said -- THE COURT: Well, that's another factor. MR. KITCHEN: Mr. Armenia said he turned them over to Mr. Graham, but I think Mr. Graham in his testimony, which on rebuttal would be certainly reiterated even stronger -- THE COURT: We're not going to go full circle and get the FBI into producing a glitch in the tape, are we? MR. KITCHEN: I hope not, Your Honor, but I -- but Mr. Graham wasn't, he would say he wasn't in possession of the tapes, and I think we'll have other witnesses that will support that. THE COURT: Well, that, of course, if there be a monkeying with the tapes, then of course it becomes important as to who had them and -- MR. OSTROWSKI: The chain of custody is crystal clear. It's Armenia to Graham -- THE COURT: Well, it may or may not be -- MR. OSTROWSKI: -- to Kitchen to Court. THE COURT: -- crystal clear, but -- MR. OSTROWSKI: Mr. Kitchen brought the tapes to Court. Armenia said that he gave them to Graham and Kitchen. That's the chain of custody right there. MR. KITCHEN: Yes. Oh, the chain -- MR. OSTROWSKI: There's no dispute about it. MR. KITCHEN: Well, no. There is a dispute about it. THE COURT: Well, that's only part, that's only part of the chain. MR. KITCHEN: That's right. Our contention is, the chain of custody was Armenia to Kitchen to Court. MR. OSTROWSKI: Well, that's not in testimony, unless you're going to take the stand as a witness. MR. KITCHEN: Well, I believe it, I believe it is in testimony, if we look back, but if it, if it is not in testimony from Mr. Graham's previous testimony, it certainly will be in testimony on rebuttal. MR. OSTROWSKI: It's definitely not the testimony right now. MR. KITCHEN: Well, the trouble is, Your Honor, that even if that -- THE COURT: What is the position of the expert? You forecast you were going to have him or her here today, and then we -- MR. KITCHEN: I think we said he -- THE COURT: -- because of the fact that you had to make this known to Mr. Kitchen, I guess that went by the boards. I'm not sure. MR. OSTROWSKI: Well, we canceled -- THE COURT: And I think we left it that what you were going to do today was to get some testimony from Mr. James. MR. OSTROWSKI: Yes, Your Honor. Basically the expert would say that what he heard on the tape is consistent with either an original was made into a copy from which something was left out, or the original was recorded over momentarily by someone pressing the record button. MR. KITCHEN: But Your Honor -- MR. OSTROWSKI: Then he would have to know more facts to determine which, and I think those facts may be in the case. MR. KITCHEN: Your Honor, that would be probative of what? THE COURT: Well -- MR. OSTROWSKI: Well, there is testimony that in fact this is the original, so along with that evidence and the testimony of the expert -- THE COURT: Probative may be of nothing, but the problem is, Mr. Kitchen, that I think the taping and the tapes themselves are important and consequently that any monkeying with them is important, if there has been any. I only bring it to the point of saying the taping and the tapes are important to the Court. So, as laborious as it is, we might as well run the string. MR. KITCHEN: Well, in that case then, as long as we know when the expert is going to appear so that we can maybe make arrangements for our own expert to be present and address the issue. THE COURT: We can't know that until later today when I can tell you more what my schedule is. Mr. Ostrowski. MR. OSTROWSKI: I'm ready to proceed with Mr. James, Your Honor. THE COURT: I call upon you to proceed. (LARRY D. JAMES, Defendant, Sworn) THE COURT: And you are Larry D., is that right, as in David? It may be something else, but Daniel, David James? THE WITNESS: Darnell, Larry Darnell James. THE COURT: And where do you live? THE WITNESS: 609 East Ferry Street. THE COURT: Buffalo? THE WITNESS: Buffalo, New York THE COURT: Come up to the witness box and talk right into the microphone. DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, how old are you? A. 43. Q. And where do you live? A. 609 East Ferry Street. Q. How long have you lived in Buffalo? A. About eight and a half years. Q. Where were you born? A. Florella, Alabama. Q. What's your educational background? A. I have a two year college education. Q. Now, how did you get involved with computers, and when? A. Around '84 I purchased a Tandy pocket computer from Radio Shack. It had about 1K of memory. Q. What's 1K mean? THE COURT: Kilo something. THE WITNESS: 1,000 characters of memory capacity. BY MR. OSTROWSKI: Q. 1,000 characters. Okay. A. And that little pocket computer, which was about the size of a regular calculator, had the potential for being programmed in a language, Basic. It also had about, about a hundred Basic statements that you could use in programming it. It was very similar to a calculator but I used those statements to write programs to balance my checkbook and do other things. Q. Are you saying that the, the Tandy computer allowed you to learn Basic or allowed you to use Basic, that you had already learned? A. It allowed me to use it. The little pocket computer which looks a lot like a calculator had Basic program ability. The developers would put out chips and change the chips. The programming of the chips. And you would buy a chip, if you wanted to use it to monitor race tracks, or if you wanted to use it to maintain a business. There's a lot of things you could do. If you wanted to use it in school as calculus, you would buy various modules for it, and just change the module. Q. Now, that's not the module we heard in this trial, is it, or is it? A. It's something very similar. The module, actually in this capacity, it happens to be a component, a component of electronic chips, diodes and things that were put together that are programmed. THE COURT: A program is a component of the chip? THE WITNESS: Yeah. The chip is very similar to a video -- THE COURT: Does the chip then embrace more than one program? THE WITNESS: Yes, Your Honor. Some of them would have three programs, but most of them were more specific. But it would be very similar to buying a cartridge for a Nintendo and plugging into a Nintendo, you know, a different game or a different program. But in this case there was a little chip about the size of a quarter that you plug into the pocket computer. BY MR. OSTROWSKI: Q. Did you know Basic, the Basic programming language at that time? A. No. Before I bought that pocket computer in '84, I didn't know anything. I was always fascinated with gadgetry, but I didn't know anything about programming on computers. Q. Did you learn Basic language at some point? A. Yes. Within a week, when I first got that computer, I flipped. I just sat down and used it almost 24 hours a day. Q. But how did you learn the Basic language? A. By reading a book and studying examples of the commands, and typing in the commands and watching the output, and then programming the commands in sequence. Q. How many programs have you written in Basic? A. I write a lot of routines. Specific programs, maybe, not a lot, maybe around a hundred, but -- Q. What's a routine? A. A routine is, is something to, a particular algorithm to do something. For instance, it -- Q. Hold on. Hold on. Algorithm, what does that mean? A. It's a procedure. Q. Is -- A. It's an orderly procedure. Q. Is that A-L-G -- THE COURT: G-O-R -- THE WITNESS: I-T-H -- THE COURT: M -- THE WITNESS: -- M -- BY MR. OSTROWSKI: Q. What's an algorithm? A. It's a sequence of, of commands, to, to achieve a very specific function. For instance, if you want to know how many people are in this room, you might first count the people going, if you're outside you might count the people going in and the people coming out. And then the results would be how many people are in the room. Some, some people might, might just make sure that they check the room first, and then just count the people going in, and that, that's their procedure. It's like mode of operation, you know, that may use. How you, how you do something specific. Q. Okay. A single thing? A. Yes. Events of sequence to achieve a single end result, a specific result. Q. Like calling up a menu to a screen? A. Yes. Q. You'd write a routine to do that? A. Right. Q. Is -- now, you've heard the word module mentioned, particularly with the expert witnesses. Is a module like a routine? A. You can use those interchangeable, almost totally interchangeable. Q. Okay. And so after you picked up the pocket computer and learned Basic, what happened next in your computer activities? A. I took a magazine and I found out that, first of all, that pocket computer, even though it had Radio Shack's sticker on it, it was made by Sharp, and there was some manufacturers that, that made accessories for the Sharp, Sharp equipment. Q. What's the word, I'm missing that word, they made what? A. Accessories. Q. Accessories? A. Add on devices. So I ordered the 16K memory expansion from a magazine. It cost about $120. And because when I was programming I was limited by 1,000 characters. Q. Why would that limit you? What would that mean? It was slower or -- THE COURT: Total capacity. THE WITNESS: Right. Right. If, out of the thousand characters, whatever you wanted to retain, if you have a thousand numbers, then that's all the characters. BY MR. OSTROWSKI: Q. Yes. A. If you -- and that included the, the capacity for remembering whatever the commands are. If you want a command to see line 5 plus line 3 equals, you know, the total, then those commands, to retain those instructions, were also part of the memory. So I soon started running out of memory. Like I said, I was balancing my checkbook, and I was keeping track of some of my customers in the cabs, how much money I was making when I was driving cabs. Q. Okay. When did you drive a cab, by the way? From when to -- A. I started driving cabs about, about '85. Q. And -- A. After I was in Buffalo for about a year. Q. Are you still doing that? A. No. THE COURT: So you did that for about a year? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Now, you had a bigger computer at that point. What were you able to do with that? A. I was able to -- THE COURT: Wait. Did you buy a computer then, other than your Tandy with accessories? MR. OSTROWSKI: I'm sorry, Your Honor. I confused the Court. He added memory, I believe, is that correct? THE COURT: Yeah. THE WITNESS: Right. BY MR. OSTROWSKI: Q. You had a more powerful computer after you added the memory, and what did that allow you to do? A. It allowed me to add more programs. I started programming routines to keep track of my customers, my taxi customers, their phone numbers, how many calls I would get during a particular day, and, and also program games into it. Q. How would you do that? A. I, I would write a raise that would retain names or characters, and it would allow you to put in a name. For instance, it would set, A string equals, and then you could type in a word or a bunch of words, so I put in a lot of words, and then put in questions where a person would put in certain letters, characters. And if they put in a character that was in the words, you know, that was in que. Q. In what? A. That was in que, that was waiting to come up, that was potential. Q. Que, you mean que, like waiting in a line? A. Yes. Q. Okay. THE COURT: Que? MR. OSTROWSKI: Que, I don't know how -- Q-U-E, something. THE COURT: Q-U-E. MR. OSTROWSKI: It's a wierd word to spell THE COURT: Q-U-E-U -- THE WITNESS: No, it's Q-U-E. THE COURT: Q-U-E-U-E. MR. KITCHEN: Que, que. THE COURT: A line. MR. OSTROWSKI: Oh, okay. I mispronounced it, too. Okay. THE WITNESS: Oh, that's called que. A lot of my computer knowledge comes from books. And it's very common that I may explain something technical, to technical people, and when they respond, you know, like, I'll find out that some words are not pronounced exactly the way they're written down. That's kind of common with English language. BY MR. OSTROWSKI: Q. You never heard the word pronounced before, you just read it? A. Yes. Q. Okay. A. But I developed a game called hangman, and also developed some games -- Q. When you say you developed a game, what, what did that involve? A. It involved writing a list of words that was, would randomly be picked, and whichever word is picked at random by the computer, it will remain there and give a representation of blanks or dashes to represent that that was the character. And then it will wait for someone to put an input, and you key in a letter, and if that letter was included in that, in that particular word, it would print the word on the screen. If it's not included, it would draw a symbol, a noose or et cetera. The pocket computer only had one, it was about 18 column screen, just one screen with 18 characters long. So I would preserve, you know, a portion of it for the word, another portion of it, it would be a status, it would tell you how close you are. It would scroll a little bit and show you the, the noose or the perspective, and then give you a status of how many tries you have left, because you couldn't see the whole picture. Q. Now, is this game that you created, is that actually a program itself? A. Yes. Q. Okay. And was that in the Basic language? A. Yes, it was. Q. Now, tell us the next step you made as far as learning a language or getting another computer. A. I bought a Tandy model 4, which had -- when I originally bought it, it had 16K of memory, and it was a cassette based computer. It didn't have any disk drives. The computer I bought from Radio Shack, it cost about $600, and it, like I said, it didn't have any disk drives, and it only had 16K of memory. Radio Shack sold a computer for about, for about, between $6,000 and $8,000 at that particular time that had a hard drive in it, and it had floppy disk in it, and about, about a meg of memory. THE COURT: You're saying at that time. What time frame are we in now? THE WITNESS: The early part of, of -- the late part of '85 and the early part of '86, probably in the winter of '85. BY MR. OSTROWSKI: Q. And what were you able to do with this new computer? A. Well, when I first got it, it didn't have as much -- it was just a little bit shy of the capacity of the pocket computer. It was this big computer, and a lot of people were surprised to know that the smaller little pocket computer had more memory in it. But you programmed the same. It had the same Basic language. But the advantage -- THE COURT: Why does the smaller one have a larger memory? Now, you said that had 1K capacity and the other 16K. Isn't that a measure of capacity? THE WITNESS: I said, the both of them had 16K. THE COURT: After you beefed up the pocket one you bought. THE WITNESS: Actually, actually the, the pocket computer had 18K because it's not a perfect amount of memory, and I added a 16K module, and the original memory was 1K, which was 1 and some left over. And so I added the module, and so it had the 16K, which 1K is really 124 -- 1,024. So 16K would be 16 times 1,024. It's not a perfect number, the measurement. But the, the big computer had almost it's like a 16K, but it, but it uses some in reserve for the operating systems. It only gave you about, about 15K to program in. The, the pocket computer had all the programs already built in it, and it had a little bit more than 1K by default, plus the 16K that I added, and which was totally programming capacity. And that's why, you know, it was really something that that little small computer had more capacity. And I used it to the full capacity. I ran out of memory, on both of them. And it was something. Even just a few hundred K made a difference because I was really, you know, budgeting how much memory I had for the programs I was writing. BY MR. OSTROWSKI: Q. At this time, around 1985, were you involved with other computer users in any way? A. It was around the late part of '85, after I got my Model 4, a little while after then I started going to the computer club kind of regular. Q. Which, which club? A. At the particular time it was called the Western New York Tandy Users Group at the University of Buffalo. Q. And when did you join that group? A. I joined it a couple of months after I got my Model 4? A. '85? A. Yes. Around '85 or '86. It was close around that particular time. Q. Are you still a member? A. Yes, I am. Q. Okay. And have you held any positions in that, of leadership, in that organization? A. When I, when I joined, soon after I -- well, the whole situation of the club is to -- MR. KITCHEN: I'll object as not responsive, Your Honor. THE WITNESS: Can you ask me the question again? BY MR. OSTROWSKI: Q. What -- did you hold any positions of leadership? A. Yes, I did. Q. And what -- A. And I do. Q. Well, starting from the first and going to the last, what, what were they, and by year? A. The first position I had was, I was newsletter distributor. Q. When was that? A. I think it was around '88. Q. Okay. And what did that task involve? A. Organizing all the, the -- making sure that everybody got their newsletter and organizing the data base, printing out the letters and printing out the mailing labels. Q. How many members were there at that time? A. 150. Q. Did you do any writing as far as the newsletter? A. Yeah. I would write articles, articles about utilities and routines. Q. Can you give us an example, if you recall, of a particular article? A. I wrote an article telling about the merits of using Microsoft windows over using DOS. Q. Okay. And when was that published, if you recall? A. Around, around '88. Q. Okay. And I'll skip over asking you what the merits are, but what was the next leadership position that you had? A. I was vice president of the club. Q. And when was that? A. '89. Q. And what were the duties of vice president? A. To -- THE COURT: I thought vice presidents had no duties by definition, but go ahead. Go ahead. BY MR. OSTROWSKI: Q. Were you just waiting in the wings for the president to die, or did you do more things? A. The vice president had specific duties to organize, to organize presentations, the demonstrations, where, you know, someone would come in, and we might invite Microsoft to come in to demonstrate the latest version of Microsoft Word, or someone from Lotus to come in to give a presentation. Q. How often would you have these meetings? A. Once a month. Q. Okay. And did you ever do any presentations to the club yourself? A. Yes. Soon after I was a member I would give a presentation of some of the programs I wrote and some of the equipment that I, that I would design. Q. Now, would these be simply you talking, or would you be using a computer, or how would that work? A. I would use a computer during the lecture, a lecture type of presentation. And it's held, our meeting is held in Hall at U.B. Q. And can you give us an example of one of your presentations, if you recall? A. I gave a presentation on, on multi task, a multi tasking environment. Q. I'm sorry. I'm missing that word. Multi -- A. It's an environment for -- THE COURT: No. He's missing the word. THE WITNESS: Multi tasking. BY MR. OSTROWSKI: Q. Multi tasking. That's a computer jargon word. Is that a common computer word? A. Yes. Q. Okay. What does that mean? A. Operating more than one task at a specific time with one computer. Q. Okay. And what was the -- can you summarize very briefly what your presentation was, or what the point of it was? A. I was, I was showing how you could use a computer to do word processing and call out on a telephone, and someone else call you, from just one computer, without interrupting your work. If you were balancing your checkbook on a spreadsheet or something to that effect, and then someone called you on the telephone, not necessarily on the computer modem, but someone called you to the phone, and asked you for information, under normal circumstances a person would have to quit the work on the spreadsheet and save their position and drop to DOS and then load up another program. I was demonstrating software that allowed you to just switch tasks and suspend the work that you were doing. Not suspend it. That would be task walking. Actually just switch to another window, and, and pull up your data base, and then give the information that you want to give, without stopping the other work that you were actually doing at the same time. Q. Now, do you know what a BBS is? A. Yes. THE COURT: What a what? BY MR. OSTROWSKI: Q. A BBS. What is a BBS? A. It's a bulletin board system. Q. Okay. And what is a bulletin board system? A. It's a system to allow people to use their modem to communicate and to share files and programs. Q. Now, give us an example of why somebody would use a BBS or how they would use it? A. Well, when a person first gets a computer, well, by default, a person may not know a lot, and if they have a modem, they can log into a bulletin board, and if they have a question, first of all, they can read messages that other people have posted, and then get real familiar with some of the, some of the problems and triumphs that other people have had. It will kind of help them to answer questions before they have them. And as far as having questions about doing things, they can post the question. Someone might tell them how to format a disk or how to -- or give them tips on doing back-ups and saving data, or the best word processor to use. THE COURT: Now, you say someone could access and make use of a BBS if he had a modem? THE WITNESS: Yes. THE COURT: You need a modem? THE WITNESS: Yes, Your Honor. THE COURT: What is a modem? THE WITNESS: It's, the word modem stands for modulate, demodulate. What it does is take sounds -- THE COURT: Stands for what? THE WITNESS: Modulate, demodulate. THE COURT: Is that involved in the M-O-D-U-M? THE WITNESS: Yes, it is. THE COURT: Or is it D-E-M? THE WITNESS: M-O-D-E-M. THE COURT: Mod and D-M. I see. I see. All right. Modulate and demodulate, is that what it stands for? THE WITNESS: Yes, Your Honor. THE COURT: What is modulate? THE WITNESS: Modulate has to do with, with, with communicating sounds that are made, actual sounds. THE COURT: Sounds that you and I could hear, but we couldn't understand, but a computer can. THE WITNESS: Yes. A modem would turn electronic signal into, into a modulated sound, and then send it over the telephone, and when it gets to the other end -- THE COURT: A modem or modem then produces and understands these computer sounds, computer language, as sent over telephone lines. THE WITNESS: Yes. In a very good, in a sense. Broad sense. THE COURT: You need a modem to send information or to receive information via telephone line? THE WITNESS: Yes. It's the sound that goes over the telephone. THE COURT: What, what if anything more does a modem do? THE WITNESS: When it's receiving, on the receptive end, it would turn those sounds into electronic pulse, pulses. THE COURT: And do what? THE WITNESS: It will turn them into bits and bytes, which would -- THE COURT: And do what with them? THE WITNESS: Turns into the words on the screen. THE COURT: Where does it put them? THE WITNESS: It's really in the computer's memory for a while. THE COURT: It goes into the memory. THE WITNESS: Yes. THE COURT: All right. All right. RAM or something like that, random access memory. THE WITNESS: Yes. It actually, each one of them would turn out to be a character. It can be the letter A, B, C, or it can be a control character which cause the screen to clear. THE COURT: All right. Go ahead. BY MR. OSTROWSKI: Q. So the, with the modem you could copy a program in your computer to my computer? A. Yes, you can. Q. And how, what else do you need besides a modem to communicate to -- A. A communications program. Q. Okay. And what else? A. A hard drive to receive the information. Q. Okay. Are there various codes or identifiers that people use to communicate by modems? Is that necessary, to have like a code name or -- A. Well, a person would, would -- if they log into a computer, a BBS, they, they normally would have to log in under their own unique name. Otherwise, you know, there are certain security that you would establish in allowing a person to have certain assets or be guided to a certain area, a certain public area. Q. Now, did you set up a BBS at some point? A. Yes, I did. Q. And when was that? A. It was around the early part of '86. THE COURT: Now, to communicate by means of your modem, you need a telephone line. THE WITNESS: Yes, you do. THE COURT: Is this a line other than the one you and I might, you might use for your normal conversations with people? THE WITNESS: Not necessarily. THE COURT: You could use the same one. THE WITNESS: It can be convenient to have two lines, but, but 95% of the model users only have one line. THE COURT: Okay. You can't simultaneously talk person to person and have the computer use it, but you can alternate. THE WITNESS: Right. You can't. The noise would break the transmission between the computer and the -- computer to computer. THE COURT: Having your normal telephone line then, using for your computer modem, how then do you get in touch with the BBS? THE WITNESS: The software would handle it. Once you have it plugged into the computer, into the modem, the software that you pull on the screen, it's called a terminal program. A real popular one is Q Modem. That's the one I use. It would detect that there's a modem there. If there's not a modem, it would indicate that there's no modem, and -- THE COURT: On the receiving end. THE WITNESS: On your personal computer. THE COURT: You've got a modem. You have a modem. THE WITNESS: Right. If you have a modem, your computer software would detect it. THE COURT: All right. You have a modem sitting in your house. You want to be in touch with the BBS. THE WITNESS: Right. You call and if they -- THE COURT: What do you call? THE WITNESS: You -- there's a that allows you to punch in telephone numbers. THE COURT: It's a regular telephone number you use to get in touch with the BBS. THE WITNESS: Right. You call that number, and when the modem calls, if the other end answers as a voice, then nothing happens. But if the other end answers as a modem or a computer -- no, it's actually the modem, the physical modem that answers, but people say, if the computer answers, then it puts out a high pitched sound and they would sort of lock together. THE COURT: You know the way our letterheads come out. Now you got your regular telephone number. And for some reason, right in juxtaposition they have the FAX number, and I find myself -- THE WITNESS: It's very similar to the FAX. THE COURT: -- dialing that number, and MR. OSTROWSKI: I do that about once a week. BY MR. OSTROWSKI: Q. Okay. Now, what did it involve for you to set up your BBS, skill-wise or material-wise? A. I was a pioneer back there in those days. Q. Well, how many were there at that time? A. In this, at this particular time, there were about six or eight in this area. Q. Okay. A. There's probably close to a hundred at this particular time, well over a hundred. Q. Is yours still operating? A. It is. Q. Okay. What did it take to get that set up back then? A. I had to write mine. I had to right, basically to write the software to operate my system. Q. Did you seek any consulting advice from other people on how to set this up? A. I did a lot of communication with people on CompuServe. Q. Okay. Did you talk to anybody in the Buffalo area who helped you set it up? A. No. Q. Okay. Did you look at any books? A. Yes. Q. How many books did you look at? A. A lot of books. Q. Okay. So you said you had to write some software. What kind of software did you have to write? A. I had to write right away to -- the Model 4 was a little bit easier in some ways, but I -- you could type, put in commands that would allow the computer be redirected to the telephone. So I wrote routines that, as soon as the computer itself would acknowledge the modem on the telephone, that it would go into a data base, and prompt the user for his name. Similar to the games that I had mentioned to you before. Q. Yes. A. A person would put his name in, and, and then just go to a data base, and they can punch in messages. Q. Okay. And so you had the hardware, which was the Model 4 computer? A. Yes. Q. And the software. And what else did you -- is that what you needed? A. Yes. Q. Okay. What -- now, what could somebody do at that point if they called up your computer with their computer and were on your bulletin board? A. They could leave messages and they could, and they could upload or download files. My system was run on a floppy drive system for at least a year, for about a year. It didn't have a hard drive in it. Q. And that limited what you could do? A. Well, at that particular time, programs were a lot smaller than they are now. I could have about, I could have about a hundred programs available for people to download on four floppy disks, and I had them chained together, like not just, it was two in the machine, it was two external of the machine. Q. You're losing me. Two what? A. Floppy drives. Q. Okay. You had four floppy drives? A. Right, right. So I had one, one, you know, for the operating software, and another one for the, for the message base and things like that, and the other two were just storage area for files, you know, that people could browse through, or they could use the space to upload new files. Q. Was it difficult to set up a BBS with just floppies? A. It was kind of difficult, but probably not as hard as it would be at this particular time. See, the thing then, like I said, being a pioneer, there was nothing to compare it with, not very much to compare it with, so the whole idea of just being able to dial and your computer answers, someone's computer will answer, you didn't have to have a lot of fancy brackets and a lot of fancy things. You know, it was just straightforward. You'd call and you could communicate messages, and you can transfer files. Q. Now, before 1985, do you have any idea what percentage of the population had a personal computer? A. Not very many people had computers. I wouldn't know the percentage, but I didn't know anyone that had computers, any person, individuals. Very few businesses had computers at that particular time. Q. And you can't have -- A. Even Radio Shack, they sold computers but they didn't operate their business using computers. They still used paper. Q. You can't have a bulletin board system if nobody's got any computers out there, right? A. Like I said, none of the peers, none of the people I knew had computers. There were about four -- no, about four or six other boards. So it was a real close knit club. I didn't know any of the people that, that I communicated with when I called out. Q. You mean, you personally didn't know, you didn't, you had never met them? A. Right. I only knew them through the bulletin boards, and so they called me and my board, you know, the group of people. Q. Do you recall who the other pioneers were at that time? A. BIBMUG, B-I-B-M-U-G. Q. Okay. A. Buffalo IBM Users Group. Q. Okay. Now, you say that at some point you put a hard drive in? A. Yes. Q. And what's the difference between a hard drive and a floppy? A. Physically, a hard drive is made out of metallic material, and a floppy is made out of something real similar to -- real, well, it's made out of real flexible material. And then something not so physical is, a hard drive is generally bigger in capacity. Q. Now, what -- THE COURT: Is it a disk? THE WITNESS: Yeah. The floppy -- they are both disks. THE COURT: Is the hard drive a disk? THE WITNESS: Right. When I was describing -- THE COURT: Just answer the question. THE WITNESS: Yes, Your Honor. It is. BY MR. OSTROWSKI: Q. Okay. When you started out with your BBS, how many, I don't know what you'd call them, how many people were hooked up to your BBS? THE COURT: Your BBS? Did you start a BBS, or did I miss anything? THE WITNESS: Yes, Your Honor. My system was very popular when it first started, and I would say I had probably around 100 users. BY MR. OSTROWSKI: Q. Right at the beginning? A. Very near, in a very short period of time. Q. And are you still operating that today? A. Yes. Q. And how many do you have today? A. Over 1,500. Q. Do you know how that compares to -- well, how many other, you said there were about 100 others right now, or -- A. Yeah. There are hundreds in this area. Q. How does yours compare in terms of the number of users? A. If someone has more, it might, or about as many, it might be BIBMUG, but very few systems have so many users. I would say the average would be between 75 and 300. THE COURT: What's the advantage of having your own BBS? THE WITNESS: The advantage of -- well, at that particular time, one of the reasons I started the system is because I was using CompuServe for consulting, and whenever I had a question or a problem, I didn't know anyone that knew anything about computers, so I would log in the CompuServe and post a question. And I was being charged about $24 an hour. And when I started my own system, I was really kind of mimicking what I was, what I was doing on CompuServe, allowing people to, you know, post messages, and I would be able to post messages on my own system, and people, you know, logging anyone answering my messages as I would answer theirs. And I think that that's what made my system so popular because people liked the concept of sharing ideas. BY MR. OSTROWSKI: Q. Now, you stated that the hard drives holds more information than the floppy, is that true? A. Yes. Q. And when you got the hard drive on your computer, what did you do with that hard drive, as far as the BBS was concerned? A. I made more space available for transmitting files. Before I had the hard drive, when people uploaded files, it would easily fill up the floppies, and what I would do was take the floppy out once it get full, and put it on the shelf, and then put a description, retain a description for, description. If they, when they see a file they want, they would give me a name of the file. Actually I wrote a routine where they would go through the motions to download the file -- MR. OSTROWSKI: Excuse me. Could I question the witness? I find it very disrupting, Your Honor. There's a continual flow of conversation behind me. If that's proper, I'm sorry for objecting. But I find it very distracting. THE WITNESS: I would now allow -- I wrote a routine that would allow the user to go through the motion of downloading a file, and if it's one of the ones that I had taken off the line and put on the shelf, it would right automatically generate a message for me, and give them a prompt that the file would be there within 48 hours. BY MR. OSTROWSKI: Q. Do you recall when you put the hard drive in, what year? A. It was around, it was late part of '86 or early part of '87. Q. Now, did there come a time when you wrote any other problems, besides the first one that you wrote, to make your BBS more accessible, or more usable? A. I always wrote programs to manipulate my files and manipulate my system. Q. Well, give us an example. What was the first type of program that -- what was the second -- you mentioned the first program to set it up that you wrote. What was the next program that you wrote, as far as making your BBS more efficient? A. When I got the hard drive, I had enough space to have more, more files and more things available. What I did, I downloaded a commercial board. Actually, it was a shareware bulletin board from CompuServe. Q. What's that called? A. The name of that board? Q. Yeah. When you say board, do you mean program? A. Yes. Q. It's not a physical thing? A. Right. Q. Okay. What did that, what was the name of that program? A. It's been quite a little while ago. I don't, I don't remember the name of the program. Q. Okay. What did that program do? A. Well, it allowed a lot of message areas and some -- it allowed a little bit different access and things. It was a commercial program, basically. Well, once I paid my registration and became a commercial program, I thought it had a pretty good professional look. So having more space, I added this to -- I added this to my system and -- Q. But what, I mean, you said it had a look, what kind of look are you talking about? What did this program actually do? Maybe you've answered it, but -- A. It allowed more forms, when a person, when a person posts a message or go to read messages, it allowed them to go into different forms, and not just one, one area, but it would be a lot of areas. You could go into areas that specialize in computers and go in different areas that specialize in games, another area that specialized in maybe race car driving. But you could set up, set aside various forms. And so when I had got the hard drive, I added this, this to the system, plus I added the, a feature to accumulate all my files that, a lot of my files that were on the shelf, I put them on the hard drive and then started sorting them out. Q. When you first set up your BBS and somebody would call in, at some point would they see something on a screen? A. Yes. Q. What would they see? This is back in '86. A. Oh, they would see, Welcome to the Magic of Apollo 3. Q. Okay. And then what would they do? A. Then it would, it would show some credits about, located downtown Buffalo, where it snowed. Some of my friends just joking asked me why was it saying downtown Buffalo, as if I was downtown like we're downtown now, but it was in relationship with most of them were in Williamsville and outskirts in the suburbs, so I was downtown to a lot of them. But then a prompt for their name. Q. How would, how did they get into your system, as far as using files? How did they see what files were there? A. They would hit F for files, for the file directory. Q. Okay. And what, what would they see at that point? A. A directory of categories. Q. Okay. Now, what, when they hit F, is that some sort of a program? A. No. It's a command option. It's a command option, with the word F signifying files, or short for files. Q. Well, but who, who or what company wrote that or made that, that F command? Was that, is that on the computer? Is it part of a program? A. Well, that, that's very common with -- that's so common to one who made the command to refer for files for F. It would be like to say, who made -- I mean, it's something, I don't know who made it. It's something that has always been common. Q. Well, I'm not asking you who decided F should stand for files. I'm saying, when you hit F -- A. Oh, that program, that was built into the BBS program that I had downloaded from CompuServe. Q. Okay. And when somebody logs on to your BBS today, what do they see? A. Basically the same thing. First thing it says is Welcome to the Magic of Apollo 3, and you see the credits, the amount of files I have on the system, and my co-sysop, credits for my assistants. Q. Okay. And what would the next command be, to get into the -- A. It would be a prompt for the user's name. Q. And then what? A. Password. Q. And then after the password? A. A main menu would come up that allow you to choose R for read the messages, or F for the file directory. THE COURT: Why would you need a password? THE WITNESS: If I set up a side, an area, Your Honor, for you to share maybe messages between you and some of your colleagues, I would like for it to be unique when you log in, and I wouldn't want someone to log in under your name so they can get your personal mail. THE COURT: Is there also a billing procedure or basis for that? THE WITNESS: No, Your Honor. THE COURT: No billing? THE WITNESS: No. BY MR. OSTROWSKI: Q. So at some point, did they see a menu? A. Yes. Your Honor, there's no billing, but I have always accepted donations to my system, and it's, the donations does grant users some more privileges. And -- THE COURT: Get a super code name? THE WITNESS: Well, the, the level of access is called VIP. Normal users have 60 minutes of access time. THE COURT: You need a code name to get in the first door, and then you need another code name to get in another door? THE WITNESS: That donation is their code. THE COURT: That's what I mean. That would give you a code, you'd go further into the BBS. THE WITNESS: Yes, Your Honor. They become a sponsor, and I give them more privileges because they are sponsoring the system. THE COURT: And there is some codification that enables you to keep those who aren't sponsors away from what sponsors can get into. THE WITNESS: In my capacity, I just limit it according to time. I don't have any areas that anyone -- that's reserved. THE COURT: I see. Oh, it's not -- THE WITNESS: It's only a time factor. THE COURT: It's not a matter of access to this kind of information or that kind of information, but the amount of time? THE WITNESS: Right, right. They're not granted any other privileges except more time that they can use the system. THE COURT: So it's quantity rather than quality. THE WITNESS: Yes. The same quality is given to all of my users. BY MR. OSTROWSKI: Q. Now, what would this menu have on it? A. The main menu? Q. Yes. A. It had -- THE COURT: Let me just interrupt. How does your BBS then control the amount of time I may have, I in my modem has accessed your BBS and I'm a sponsor and I'm allowed 20 minutes. Does it cut me off at 20 minutes? THE WITNESS: It would give a five minute warning when the time is coming close. THE COURT: And then it would come to the end, it just chops it off. THE WITNESS: Then it give a three minute warning. Then a one minute warning. THE COURT: But there comes a time when the gate slams. THE WITNESS: It will actually chop the user off, yes, Your Honor. BY MR. OSTROWSKI: Q. What would the main menu contain? A. An option to, to choose a file area, a bulletin area, or read the message area. Q. Can you give us an example of some of the categories that were listed? A. For the file area? Q. Yeah. A. Communications, games, word processors. Q. Now, that, that menu is on there today, is that correct? A. Yes, it is. Q. And how long has that type of menu been on your BBS? A. Since, since '86. Q. Okay. Do you have -- are there any programs that you've written that have anything to do with the, with the main menu? A. The main menu that comes up on my board is a text file, and I write programs to manipulate text files and to access text files. Q. When's the first time you -- well, did you write the program that brings the main menu onto the screen? A. The one that's used in my current BBS, no, I'm running a commercial BBS program. Q. Okay. A. The current one I'm using, but I did write one that does very similar to what the one is, what my current BBS demonstrates. Q. Okay. And after, what can somebody do, let's say with the communications category, if they want to access that, how do they go about that? A. Right next to each one of the categories, to the left of the categories there's a number, and you type in the respective number, and it will pull up a list of files in that particular category. Q. Okay. And what can they do with the -- would that be communications files? A. If -- I believe the first item, I think, on my system, I think communication is number 4. Q. Okay. A. And if they did hit the number 4, all the files would be communication related files. Q. And how would you access a communication file at that point? A. After you pull up the -- after you have brought in that list of files, you would, you would have an option -- how would you access the files, you say? Q. Yes. A. From the bulletin board? Q. Yes. If you were using your BBS. I mean -- A. You type in a name, after you saw the list. You would type in the name of the file that you want. By the way, using the modem, you don't have access to and mouse, mouse support. It's something very new, what I'm starting to write right now, mouse support over the modem. You, you have to choose a menu just by choosing a number, or an item, so once you see the list, you type in the list, and the software would take you directly to that file, so that the file could be handled. But you would have to type in the file name. Q. Okay. Once you type in the name of the file, what happens then? A. The file would appear in que to be retrieved, and when you, a number would come up to indicate how many files you have chosen, and that particular file will be in que. Q. Okay. And what happens then if you want to use the program? A. When you finish choosing and stop typing in file names, the next time you press enter, it would send those files from my hard drive to your system, to your hard drive. It will retrieve those files. Q. Now, the various steps -- okay. Once it retrieves the file, what happens, for the user who wants to use a program? A. Well, from that point, the program is on the hard drive. Where is that on the hard drive, it's all up to that individual, how he has his hard drive arranged. Q. At that point it's out of your hands, as the BBS operator? A. Right. It's out of my hands. Q. Showing you Defendant's Exhibit 16, can you identify that? A. Yes, I can. Q. And what, what is that? A. That's a file that's on my system. Q. Today? A. Today. Q. Is there a date on there anywhere? A. Yes, there is. Q. And what's the date? A. 12 -- I mean, 10/12/93. Q. And as of today, is it the, is that what your system looks like when the main menu appears? A. That's the way it looks. Q. And how long has it looked that way? THE COURT: Now, what do you call that? THE WITNESS: This, this is a menu of -- THE COURT: That's a menu. THE WITNESS: -- file categories. BY MR. OSTROWSKI: Q. Is that, would you call it the main menu or not? A. It's a main file menu. Q. Okay. And how long has your BBS main menu looked that way? A. It looked that way from when I started, even from the one that I had written before I bought the commercial program. Q. But you didn't invent this particular arrangement? A. No, I didn't invent that arrangement. That, actually that's, the files on CompuServe is very similar to that, in some manner. Q. Now, how many, how many BBS's have you operated? In other words, other people's BBS's? A. Three. Q. Three. Whose are those? A. The current one that I use is PC Boards. It's written by Clark Development Corporation. Q. Now, what I'm asking you is, have you ever logged into somebody else's bulletin board, just to play around with it? A. Oh, yes. Over the years I would say many 10's, maybe in the hundreds. Q. Hundreds, okay. And can you describe, is there any similarity between the main menu in the bulletin boards you've seen? A. There's a lot of similarity. The software that I run, PC Board, has hundreds of boards all over the country, in fact all over the world. Q. What, you mean the -- A. And you can log into any of those hundreds of boards and they all look basically the same way. Very little deviation. Q. Is that because -- A. If you logged into 10, the only way you would know that you're logging into a different one is you'll see a different name of credits, of who owns it. And they all look exactly like what you just showed me. If you typed F, you see that every time you log into a PC Board. Q. Is that because the, many of the BBS's use the same program that sets up the main menu? A. No. That's because that's the standard and it has been, you know, as long as I've been looking at file lists. MR. OSTROWSKI: I'd like to offer Defendant's 16 into evidence. MR. KITCHEN: No objection, Your Honor. THE COURT: Defendant's 16 is received. (Defendant Exhibit 16 received into evidence.) BY MR. OSTROWSKI: Q. Now, you stated that on your BBS somebody can access a file by starting with the general category of communications and then hitting a bunch of commands in order, and eventually that file ends up on their hard drive? A. Yes. Q. Now, is there a program that allows that to happen? A. Yes. Q. And what kind of a program is that? A. Well, since, since it's retrievement of your hard drive, I would say it's a retrieval in that sense, but it's actually BBS software. Q. Okay. But it's a retrieval program? A. Yes. Q. Did you ever write a retrieval program for BBS's? A. Yes, I did. Q. When did you write that? A. The first time I wrote retrievals was around, between '85 and '86, and the main reason I did this was not so much BBS's, but to allow my nephews to use my computers and run programs on my computer. Q. Well, is there some similarity between file retrievals, regardless of the thing they're retrieving files from, whether it's a CD Rom or a BBS? A. There's a lot of similarity. Q. Okay. And you, are you saying that you wrote a file retrieval before you wrote one for the BBS? A. Yes. Q. Okay. And tell us about that. A. I wrote a menuing system to allow my nephews, one in particular, four years old, to be able to use a computer without me having to guide him. He would go in and choose games, just by using arrow keys or typing in numbers. Q. What language did you write that in? A. The first time I wrote it in Basic, and, but to speed it up I wrote it in assembly language. THE COURT: In what? THE WITNESS: Assembly language. THE COURT: I'm sorry. I don't get the word. MR. OSTROWSKI: Assembly? THE WITNESS: Yes. THE COURT: Assembly. MR. OSTROWSKI: As in assembly man. THE WITNESS: Assembly language is considered -- THE COURT: A-S -- THE WITNESS: -- a very low level language. I mean, when a non, a person that doesn't know computers are referred to as low level and high level. Basic is a very high level language. BY MR. OSTROWSKI: Q. How do you spell that? Is that A-S-S-E-M-B-L-Y? A. Yes. Q. Okay. A-S-S-E-M-B-L-Y. I don't spell too well myself. By the way, how many languages do you know today? A. Considering that some of the languages have real slight languages, I would say between 8 and 10. Q. And what are they? A. Basic, GW Basic, which is the same Basic, Quick Basic, Pascal, C, D Base. I program in Lotus. I write programs for Amy Pro. Q. Is Lotus a language or -- A. Lotus is a spreadsheet, but it has a language. It has a language where, you can write language to change colors, do anything that you do in those other languages. Assembly. That's some of them. If I think hard enough, I probably can name a number of other ones. I write in Unix Shell language also. Q. How did you learn these languages? A. By studying books. Q. Okay. Did you take any courses? A. No. Q. Okay. Did somebody teach you? A. I teach people. I teach college students. Q. What was the year of the -- MR. KITCHEN: Objection. Not responsive. BY MR. OSTROWSKI: Q. What was the year of the -- MR. KITCHEN: Objection. Not responsive. THE COURT: It's been answered. BY MR. OSTROWSKI: Q. What was the year of the file retrieval, was that a file retrieval for like a hard drive, that you wrote for your nephew? A. Actually it was for my floppy systems. Q. Okay. A. I didn't have a hard drive at this particular drive when you made reference before, I was writing for a BBS. Q. Okay. When was the first -- was that in 1986 or '5, when you wrote that first file retrieval? A. That was between '86, '85 and '86. Q. Okay. And did you write a file retrieval for a hard drive at some point? A. Well, soon after I got the hard drive, I wrote routines that would, that did the same thing that it was doing on the floppies, for the hard drive. Q. And did you write a retrieval for a BBS, and when? A. I wrote file access routines for my, for my BBS. They're essentially the same thing as retrieving files from the floppy system. Q. Okay. And when did you first write that? A. Around '86. Q. When did you first meet Richard Graham? A. I believe it was, it was around '88. I'm not real sure but it was probably late part of '87, early part of '88. Q. And what were the circumstances of that meeting? A. He came to the computer club. I believe he kind of introduced himself to me at the computer club, but I really don't remember talking to him until he called me on the telephone. Q. And was that the same year, '88? A. In that area, in that time. Q. And why did he call you, if you recall? A. He logged onto my BBS and, and he had, I'm not sure where he got my number. I believe he got it from the, the newsletter of people who give assistance. Q. Well, why did he call you? I'm sorry -- A. He was having problems downloading files, and he asked me to show him how to do it. Q. Going back to what you said, you had a phone number listing in the newsletter? A. Yes. Q. Under what category? A. People available to give assistance. Q. Okay. And did you get other calls from people, other than Mr. Graham? A. Yes, I did. Q. And what in general did those, what were those calls about, and why would people call you? A. To help them with problems. The computer might not boot up or something. They would call me and ask me to talk them through it or give them assistance on how to fix it. THE COURT: Boot up? Is that what you said? THE WITNESS: Yes. THE COURT: Is that the same thing as firing up? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. How many such calls have you taken over the years? A. I couldn't count them. Q. More than a hundred? A. Sometimes I get 10 in a day. Q. 10 in a day? A. And people call any time. Q. And is that over a five or six year period, because you said we're talking '88, 1988 here? A. Well, back then I didn't get as many calls. I probably got maybe a few a week. Q. Okay. Why did Mr. Graham call you, if you recall? A. He was having problems downloading files. Q. And what did he want from you? A. He wanted me to teach him how to do it. Q. And did you? A. Yes, I did. Q. And was, what further contact did you have with him? A. He was kind of excited about, well, for one, one of his problems, the first thing I told him is that his access, he was, wasn't high enough to access a file. That's why he couldn't download them. Q. What does that mean? A. There are a couple levels of access. There's the intro level of a person that just logs in and don't leave any information. You don't know who the person is or whether they're bona fide. And I would have it where these people can't do very much on the system. You don't want someone know, out of the clear blue sky to just log in and type messages or profanity and harrassment to other users. So you won't give them privilege to be able to do a lot on the system. They can look around, and they can fill out an application to join the system if they want to, and then they have a high access. So that's an entry level access. Q. Access to your computer, access to your BBS? A. Yes. Q. Okay. And -- A. Richard, Richard's level was low because there was a requirement on my system where you have to read some of the messages to have full access. And I, I had told Richard to have full access he had to read some of the messages. Q. And how did he respond? A. He told me that that was a personal problem, and this, and his son talked to me. His son talked to me, and his son told me Richard -- Q. Well, without telling us what the son said -- A. Well, Richard -- they told me -- Q. What did you do next? A. -- that it was a personal, personal situation, and they invited me to come over their house. Q. And did you? A. Yes, I did. Q. And was this, are we still in 1988? A. Yes. Q. Approximately. And what happened at the house? A. Richard told me that, that he had problems reading and his wife read to him, and -- THE COURT: Reading what? THE WITNESS: Reading, period. That he was, he didn't know how to read, that anything that had to be read to him, it was read to him by his wife, and so I told him, well, when you log in, just press enter a number of times, hit the letter R and press enter a few times, because my program that checks, you know, the participation, will -- the program don't know whether you're reading the message or not. They just pass through the screen and he would get a high access. And I also spent a lot of time teaching Richard to read and write. BY MR. OSTROWSKI: Q. How many times did you do that? THE COURT: Do what? BY MR. OSTROWSKI: Q. Teach him to read and write? A. During the time when I first started going to Richard's house, he would call me a couple of times a day, and I would go to his house at least, at least five times a week. And a lot of times we went to his house, it would, it would be about 8:00 when I went to his house. THE COURT: 8:00 what? THE WITNESS: About 8:00 o'clock. THE COURT: Night or morning? THE WITNESS: In the night. And very often it may be about 5:00 or 6:00 when I would leave. BY MR. OSTROWSKI: Q. 5:00 or 6:00 what? A. In the morning. Q. Okay. And what other, what else did you do for Richard, as far as computers are concerned, starting in 1988? A. Richard was, Rich was very excited about the things that I was teaching him and doing with him. He, he gave me a lot of praise because he, he said that my system was the only one he could, that he had had access on. He was calling BIBMUG and some of the other systems, and he would be on line and all of a sudden, he would get a no carrier, and I told him -- THE COURT: Get a what? THE WITNESS: They would drop carry on him. THE COURT: No carry, C-A-R-R-Y? THE WITNESS: Carrier. The carrier. THE COURT: No carrier. THE WITNESS: It's what, it's those two sounds between the modems that indicate that they are actually connected. He would be disconnected and, without given any reason. And I told him that because the way he logged in and didn't participate in the message base, they thought that he was just a prankster or something, just logging in, you know, up to no good. And so I told him to do the same thing when he logged on those boards, to press enter. And I told him, I said, when you press enter let the messages pass by the screen, just look at the words, and if you look at them long enough, you know, you'll start noticing patterns and certain things, and you'll start learning things about the -- you'll start learning. And the things that I was working with him, they did work. Richard did learn to read. Q. Okay. With respect to computers, did you teach him anything? A. Richard was spending a lot of money with Radio Shack. THE COURT: Can you answer the question? THE WITNESS: Yes. I taught him -- THE COURT: Without giving a speech. Like a yes or no. THE WITNESS: Yes, I did. BY MR. OSTROWSKI: Q. Okay. And what, what did you teach him, what help did you give him? A. I taught him how to set up computers. Q. Now, what's your experience in setting up computers? A. The Model 4, the first Model 4 that I had mentioned to you, was a 16K machine, very limited, didn't have any disk drives. I added four disk drives to that computer back there in the times when a lot of businesses, they didn't have floppy disks on their computers. They was tape units. Q. How do you add disks onto a computer? A. I took magazines and ordered, ordered components, and, and assembled them into this Radio Shack computer. Q. Well, how do you assemble a disk onto a computer, exactly? A. You have to open it up and connect it to the power supply, and it, at that particular time it took a lot of patches and a lot of work to do it. But at this time, it's more, it's simpler. It's a matter, there's a certain compatability standard where you can open them up and basically plug them into sockets because they're built to be -- THE COURT: Now you're talking about two different things. One, plugging in, and the other, opening up and connecting, aren't you? THE WITNESS: It's basically -- THE COURT: Two different concepts. THE WITNESS: Yes, Your Honor. THE COURT: Right. BY MR. OSTROWSKI: Q. Okay. A. I got the experience, in answer to your question, from -- THE COURT: I know. I'm just trying to understand. They're two different concepts. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Well, I'm still, yeah, I guess I'm still asking you, what is your, what further experience do you have in assembling computers? How many computers have you assembled? A. Quite a few. I would say maybe 150. Q. Do you, you don't -- do you make a hard drive? A. No, I don't. Q. Okay. What do you mean by assemble a computer? THE COURT: Just a question, do you make a hard drive? Now, that's a metallic disk, you said. Are you interpreting that, do you actually make a metallic disk, is that your question? MR. OSTROWSKI: Yeah. I'm just trying to draw a distinction between -- I'm trying to get at what assembly -- THE COURT: Metallic disk is a piece of metal. It's not a hard drive till something has happened to it. Now, what are you asking, does he take a piece, a circular piece of metal, and do something with it to make a hard drive? MR. OSTROWSKI: I guess it was a, almost a facetious question. I'm trying to -- THE COURT: Well, all right. We'll back it out then. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. What do you mean by assembling a computer? A. I mean by matching the right components to correlate a single unit. THE COURT: You match compatible components. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. What types of components are there? A. There's a necessity of a hard drive for storage, memory, for programming. Q. What kind of memory is that called? A. RAM, R-A-M. Q. There's RAM memory and then there's storage memory and what other components? THE COURT: RAM is what, random access memory or something like that? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. What does the random access memory do in the computer? A. It allows -- well, basically it's the memory that runs the programs, and it's able to recess -- THE COURT: Recess or access? THE WITNESS: It's able to access by changing, changing the contents real fast, and that's how it runs programs. BY MR. OSTROWSKI: Q. What other components are there, other than -- are there any, are there any other types of memory, other than those two? A. There's ROM. Q. Okay. Is ROM different from storage memory? A. ROM is something that's burnt in, that basically you can't change it. You really can -- THE COURT: That's built into the computer as it's manufactured? THE WITNESS: It's built in, yes, Your Honor, and -- THE COURT: What's it mean? THE WITNESS: Read only memory. THE COURT: Read only memory. BY MR. OSTROWSKI: Q. You can't copy anything over it? A. Right. That's what happens when you first turn on your computer, the ROM is the first thing that's actually operating that. And it's a program that ROM will come up and say, IBM or whatever name of your computer, and then will start looking for certain things, like a hard drive, a floppy drive, or boot sector, but that, that's not something you would change. It stays the same. Q. Okay. Now, did you help Mr. Graham assemble a computer? A. Yes, I -- yes, I did. Q. Okay. And what else, what other assistance did you give him as far as computers are concerned? A. Rich was real impressed with my BBS and he wanted to run one, so I, I helped him to set up a BBS. Q. When was this? A. I gave him the PC Board that he still, that he, he still operates today. Q. When was that, when did you help him set that up? A. I believe it was the late part of '87 or early part of '88. Q. Okay. THE COURT: That's about when you met him. THE WITNESS: I think I -- THE COURT: You met him late '87 or early '88. THE WITNESS: Right. It was within about a few months, within about two months after I met him. THE COURT: So that would have been not late '87 then. THE WITNESS: Well, with -- THE COURT: You said you first met him about 1988, late 1987 or early 1988, when he -- THE WITNESS: And that's about the same time -- THE COURT: -- when he came to the computer club. THE WITNESS: Yes, Your Honor. And within two months I had given him his PC Board. THE COURT: Was that, P what? THE WITNESS: PC Board. THE COURT: PC, what's that mean? THE WITNESS: Personal computer board. It's just a brand name of the software. THE COURT: What computer? THE WITNESS: Personal computer. THE COURT: Personal computer. I see. BY MR. OSTROWSKI: Q. Now, is that the program that produced your screen that's on Defendant's 16? A. Yes, it is. Q. And you gave him that for use in his BBS? A. Yes, I did. Q. And did he use that to set up his screen? A. Yes, he did. Q. When did you meet Jeff Anderson? A. Probably a little after I met Rich, and not long after. Around that same time or a little after. I met him in the computer club. Q. Okay. Did you meet him through Mr. Graham? A. No. Q. Okay. A. Met him through the computer club. I'm sorry. I met him through my BBS, and I invited him to the computer club as a user of my board. Q. What's your relationship with him today? A. He's a good friend and he works with me at the flea market also. Q. Okay. As far as computers are concerned, is that the extent of your relationship? A. I don't know what you mean. Q. Well, it is a dumb question, I admit. Badly phrased question. Over the years with Mr. Anderson, what was your relationship with him? A. Well, I started, well, I tutored him when we first started working together. Q. And how so? A. I was teaching him Basic programming and C programming. He didn't take to C very well, but he took to Basic real good. Q. How many people have you tutored in that way over the years? A. It would be hard for me to count, but I would say 25, between 25 and 50 would be a modest number to mention. Q. Okay. A. I'm not real good with dates. I think most of the dates I give you is probably accurate within maybe a year. Q. Well, you can say if you're estimating or if you're certain of a particular date. How about Ralph Marquardt, do you know him? A. Yes, I do. Q. Prior to this lawsuit? A. Yes. Q. And how did you meet him? A. I met Ralph at the computer club. I didn't meet him on my system. I met him at the computer club first. Q. You didn't meet him through Mr. Graham? A. No. Q. Okay. And how about Greg Armenia, when did you first meet him? A. Greg called me on the telephone one day. Oh, the first time I met him. The first -- I never knew him until he called me on the phone, but after he talked to me on the telephone he mentioned that he had saw me over to Rich's house, but I don't remember seeing him. I don't know, I didn't pay him any attention. I remember the day that he mentioned, but I didn't know him at that time. Q. Okay. Now, were there -- did you have some discussions with Mr. Graham about a file retrieval program for a CD Rom? A. Yes. Q. And how did that come about? A. I was over Ralph's house and -- THE COURT: Over where? THE WITNESS: Ralph Marquardt's house. And he was operating a CD Rom, one of Rich's CD Rom's. He had been working with Richard. And I, I saw what they was doing looked kind of clumsy, and I asked Ralph, do he think that, how would Richard like to use one of my programs on his drives, what, you know, what kind of arrangements could we get. I was really -- THE COURT: You were asking Ralph about this? THE WITNESS: Yes. And I could have just as well talked to Richard, but I, but I was in very close proximity with Ralph, and plus I was tutoring one of Ralph's sons in programming, and -- BY MR. OSTROWSKI: Q. Okay. What happened next? A. I, I told him that -- I asked him, what did he think Rich would do, you know, for me to write him a program or provide him with real easy access, a very friendly environment. And he told me that Rich would probably make me a partner or something like that. MR. KITCHEN: I'll object to the hearsay, Your Honor. THE COURT: Yeah. BY MR. OSTROWSKI: Q. Did you, did you have some discussions with Mr. Graham at some point? A. Yes. Q. And by the way, when, when are we talking about here, if you can estimate, the meeting with Mr. Marquardt first? A. I think it was around March, late part of March in '80 -- I'm sorry, in '91. Late part of March. Q. First you met with Mr. Marquardt? A. No. That was when we had this conversation. I met Ralph -- Q. No. I'm saying, met him about the file retrieval. A. Oh, yes. Q. And how long after that did you speak to Mr. Graham, or did you speak to Mr. Graham? A. Probably within two weeks. Q. Okay. And what was the, what was that conversation all about? THE COURT: Where was he? THE WITNESS: At Rich's house. BY MR. OSTROWSKI: Q. Who was present? A. One of my nephews, Ralph's son, Richard Graham, myself and Ralph. Q. Okay. And what was the conversation concerning a file retrieval program, between you and Richard? A. It was basically, Richard had told me that he would not only do what I asked him -- THE COURT: Up to this time you hadn't had any conversation with him it. MR. OSTROWSKI: Who started the -- THE COURT: You talked with Ralph about it. THE WITNESS: Ralph started the conversation. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. Well, and who spoke next? A. Richard said that he would not only do what I had asked Ralph. THE COURT: What did Ralph say? THE WITNESS: Ralph asked Richard, Ralph reiterated what I had said. He asked Rich, he told Richard that I would provide him with a retrieval if, if he would, if he would sell me a disk, a CD Rom drive on credit. THE COURT: Is that what your conversation had been with Ralph? THE WITNESS: Yes, Your Honor. THE COURT: All right. So earlier you said that you had asked him what arrangements could be made for you to write a program for Graham. THE WITNESS: And we had a discussion, and Ralph gave Richard a summary of the discussion. THE COURT: Well, but I'm going back to your conversation with Rich, at Rich's house, I mean, at Ralph's, at Ralph's house. That's when you floated out this idea to Ralph about, could some arrangement be made between you and Graham where you would write a friendly program for him. THE WITNESS: Yes, Your Honor. THE COURT: Now, was there something said at Ralph's house about what you wanted in exchange for it? THE WITNESS: Yes, Your Honor. THE COURT: What was said, at Ralph's house. THE WITNESS: That I wanted a CD Rom drive. THE COURT: At Ralph's house. THE WITNESS: Yes, Your Honor. And I didn't have the money for one. THE COURT: Go ahead. BY MR. OSTROWSKI: Q. Okay. And what, what was the conversation between you and Richard at the next meeting? A. That he would not only give me one on credit, you know, sponsor, give me a CD Rom drive, but he would just give me a CD Rom drive that I could have. Richard was very familiar with my programming skills and, and my programs, period. And he was very excited that I came into the picture and, and what I really wanted was promotions. I wanted my programs, my name to be, be published on a CD Rom drive. Q. Well, was this discussed? I'm only interested in -- A. Yes. Yes, it was discussed. Q. Tell me what was said and by whom. Continue. A. Richard said that he would, he would, if I would publish on his CD Rom drive disk, that he would give me the drive, not sell it to me on credit, but he would give it to me because I didn't have it. Q. Okay. And what else was said by Richard? A. He had made a mention that, he had made some references, it was mainly that he was excited. Ralph told, asked Richard, what will you do -- his words was, who is going to own the program. That's what Ralph said, who is going to own the program. THE COURT: Was this a question? BY MR. OSTROWSKI: Q. Ralph brought this up? A. Yes. THE COURT: Question put to whom? THE WITNESS: To Richard. And Richard said, Larry is going to own the program. BY MR. OSTROWSKI: Q. Did you -- was that all he said about the, in answer to that question? A. And Ralph asked Richard, what if you decide to sell it to somebody else. THE COURT: Who? THE WITNESS: What if I sell it to somebody else. THE COURT: You. Yeah. THE WITNESS: And, and Richard said, what do I care what he does with his program. I'll be making money off CD Rom disks. He'll be making money off his program. BY MR. OSTROWSKI: Q. And what did you speak on the issue of ownership? Did you say anything? A. No. I had no reason to speak on it. I wasn't offering anything to sell. The only thing I wanted was my name to be promoted at this particular time. Q. Okay. Now, at the time, was that -- when was that meeting, if you can estimate? A. That, that was, that was around the last part of March in '91. Q. So we're still in late March? A. Yes. Q. Okay. At the time of that -- in that meeting, were you shown any programs? A. No, I wasn't, but Richard did give me a disk that had Jeff Anderson's program on it. Q. Okay. Was that at that meeting? A. Yes. He gave me a disk when I left. Q. What kind of a disk, just -- A. It was a floppy disk. Q. He gave you a floppy disk. And what did he say about that disk? A. He told me that if I needed any help that I could use that. Q. Did he say whose program was on it? A. No. He didn't say. He just gave it to me. The main thing that I wanted was a file structure that, the file structure, I needed some kind of basis of -- I needed some kind of basis of what I was going to be retrieving. I didn't have a CD Rom drive. Q. Well, I'm just asking -- THE COURT: What did he give to you? A program? THE WITNESS: Yeah. He gave me a disk that had what I guess -- THE COURT: CD Rom disk? THE WITNESS: Right -- no, it was a floppy disk. It had, it had the name -- BY MR. OSTROWSKI: Q. Did you look, did you look at the disk? A. Yes, I did. Q. When, at the meeting? A. No. Q. When you got home? A. Yes, I did. Q. Okay. And -- THE COURT: You mean, put it on the computer? THE WITNESS: I didn't -- THE COURT: Well, that's how you look at it. THE WITNESS: Right. At home. Yes, Your Honor. THE COURT: Yeah. BY MR. OSTROWSKI: Q. I take it you looked at the disk at the meeting, but when you took it home you, did you fire up the program and look at it? Well, that's probably the wrong way. Did you take, get the program on the screen? A. I fired it up. Q. Okay. A. And, and like I said, it was written by one of my students. Q. Well, how do you know it was written by one of your students? A. Well, I didn't pay attention to it at that particular time. MR. KITCHEN: Excuse me. I didn't understand that last -- THE WITNESS: I -- THE COURT: He said it was written by one of his students, but he didn't pay any particular attention to it at that time. THE WITNESS: I'm telling you subsequently -- THE COURT: Go ahead. BY MR. OSTROWSKI: Q. All I'm asking you is one thing. A. Subsequently -- Q. How do you know, how do you know it was written by one of your students? A. Jeff told me. Q. Okay. When -- A. Jeff told me about four months later. Q. Well, but no. I'm asking you, as of that day, what did that -- was anybody's name on that program? A. I didn't pay it any attention. Q. You didn't -- THE COURT: You don't know whether there was or was not. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. And what, what did the program look like, as far as telling us what was on there? What language was it in? Do you recall? A. It was in Quick Basic. Q. And do you recall how long it was? A. No. Q. Did you analyze the program? A. No. Q. You took a quick look at it? A. Yes. Q. And did you form any conclusion or opinion about it? A. No. Q. Okay. Well, how long did you look at it? A. Just, just for, just for a minute, and I started, I started compiling a program to do what, what I suggest to Richard I would provide. Q. Well, when you say compile the program, you're not talking about the program he gave you? A. Yes. Q. Well, why didn't you use the program he gave you? A. It would take too much work. I already had a routine I was using for accessing my files on my BBS, and it was, it was quite different than my BBS, and so, so I just, I just started, what I did, I arranged the files on my BBS and started talking to Richard, telling him what to do with his CD Rom, to the files on his CD Rom disk, to match the ones on the BBS. And the file structure, the things changed after Jeff's program because I, it changed to PC Board. Q. Well, you're, you're losing me at this point. Let me, let me ask you a question. At the meeting in late March with Ralph and Richard there, and I guess some younger people, did you make any statements about whether you were prepared to do this work? A. Yes. Q. What did you say? A. I told him that I would, I would do it. That's common nature for me to do, to go to a customer, anybody and -- THE COURT: No, not what you normally did. What happened on this occasion? BY MR. OSTROWSKI: Q. Did you -- you told him you were ready to do the work? A. Yes. Q. Okay. And did you tell him that you had a program already? A. That question didn't come up. Q. Did you tell them? A. No, I didn't. Q. Why not? A. I didn't see no reason to. Q. Why not? A. Probably for the same reason I haven't told you that, that I put gas in my car today. I don't see a reason. Q. Now, do you have an opinion as to -- let me rephrase that. Do you know more about computers than Richard? A. Yes. Q. Do you know more about programming? A. Yes. Q. Do you know more about computers than Ralph? A. Yes. Q. Do you know more about programming? A. Yes. Q. How much more about programming do you know than Mr. Graham? A. Richard doesn't know anything about programming per se. He's -- and I do. Q. Well, can you put it into a degree or a quality or an estimate? Would you say you know a lot more, a little bit more? THE COURT: Well -- MR. OSTROWSKI: I'm sorry, Your Honor. THE COURT: -- 10 million times zero is still zero. That's what he's saying. MR. OSTROWSKI: Okay. Thank you. BY MR. OSTROWSKI: Q. Okay. So going back to -- well, the program that you looked at briefly that Richard gave you, at some point did you gain any information about who wrote it? A. Yes. Q. And how did you do that? THE COURT: Somebody told him, which we can't admit. MR. OSTROWSKI: I'm just leading up to see what his basis was, Your Honor. THE COURT: Well, when he mentioned before someone told him and I, we have to get something more than that. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Now, you stated that you had some existing program that would do this work or -- A. Richard told me he wrote that program, but -- THE COURT: Listen to the question. THE WITNESS: Oh. Sorry. BY MR. OSTROWSKI: Q. Did you have an -- just trying to redirect your attention to where we were a couple minutes ago. Did you have a pre- existing program that you started with in this assignment? A. Yes. Q. Okay. And that was before the meeting with Richard? THE COURT: Don't lead him. MR. OSTROWSKI: I'm sorry, Your Honor. THE COURT: Ask a question. BY MR. OSTROWSKI: Q. Now, how many, when did you, when did you -- the version of that program that you had, pre-existing, when did you finish that particular version? A. It's hard to say finishing something. I have a lot of routines, and whenever I have a task I -- THE COURT: You can't answer this question? BY MR. OSTROWSKI: Q. Do you ever really finish a program? A. No. MR. KITCHEN: Well, I'll object. Now we've asked a new question, which is -- apparently the previous question is withdrawn? THE COURT: Apparently. MR. KITCHEN: Okay. BY MR. OSTROWSKI: Q. Is there a difference between a program that works and a program that doesn't work? A. Yes. Q. Did you have a working -- THE COURT: I suppose there are degrees of that, aren't there? It would work for some areas and not work for others, or work at one level and not another level. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What is your habit with respect to revising programs? MR. KITCHEN: I object to his habit, Your Honor. MR. OSTROWSKI: Well, what was your practice with -- THE COURT: I'll allow it. THE WITNESS: The whole computer environment, as well as with me, it's an ongoing situation. You're always, revise according to needs and use. BY MR. OSTROWSKI: Q. Well, the program that you had before the -- well, the program that you had to retrieve files in March of 1991, when had you completed that particular version? A. The one I gave to Richard? Q. No. The one you had in March, or let's say early March of, did you have a file retrieval in early March of 1991? A. Yes. THE COURT: Before you talked with Ralph about doing something for Graham? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. Now, what, what was the next step that you took in this assignment of -- now, I don't think we talked about it, but it's rather obvious at this point. What was the file retrieval program for that Richard wanted? A. To retrieve files off a CD Rom drive. Q. Okay. And what did you do next, as far as doing your assignment of producing such a program? A. I told Richard how to structure the directory, the DIR's so that they would match my retrieval. Q. Well, let's go over that. Could you just repeat that and perhaps explain that in more detail? A. On the disk that Richard gave me, which the main thing that I really wanted, not, not a retrieval, or whatever he, whatever was there. It was really a lister, a file lister. But what I wanted was a structure of the -- Q. Well, slow down. Slow down. This is important. A. What I wanted -- Q. Was there something on the program other than a file retrieval, that he gave you? That, at the meeting, he gave you a disk? A. Yes. There was, there was text files that were the name of the files that were on the hard drive, on the CD Rom drive. Q. Okay. So there were text files on there as well as a file retrieval -- A. Yes. Q. -- program. Okay. And what did you do next? A. I, I looked at the text files and I realized, actually I realized at Ralph's house but I was utilizing this to guide Richard on how to handle the direct -- the DIR's, that -- Q. What's a DIR now? We've had some testimony about that, but -- A. Text, text files. Q. Okay. A. It's just a name of a text file. It could be called text. THE COURT: T-E-X-T? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. I think we've already established -- A. It's word process -- files that you could look at, a word processor, and modify, edit or change. Q. I think we've already established that it's a confusing word because there's also a DOS command named DIR. A. Oh, yes. Q. Which is totally different. Okay. What, what was the next thing that happened after you looked at the text files on your floppy? A. I, I copied the text files to my hard drive. Q. Onto your hard drive? A. Yes. Q. Okay. And what did you do then? A. Renamed them to the same names as the text files that's on my system already, renamed those text files to the same format that PC Board used. Q. Why did you do that? A. So it would work with the utilities that I was already using. Q. Now, what do you mean when you say you renamed them? What did you rename, exactly? A. The files were something like 001.CAT, and 002.CAT and 003, et cetera. Q. That you received from Richard? A. Yes. Q. And what did you do to them? A. I renamed them DIR.1, DIR.2, DIR.3, et cetera. That, and that's the name of the files that has been on my disk for all these years. And it was something that I was using. Q. Is that from the PC Board, or is that your own? A. It's from PC Board. Q. DIR.1, DIR.2, DIR.3 are from PC Board? A. Yes. Q. Okay. And what did you do next? THE COURT: On your PC Board, is that what you mean? THE WITNESS: It's on a commercial program, bulletin board. THE COURT: You buy a PC Board. THE WITNESS: Yes. THE COURT: And this is on there? THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. What did you do next, after you copied, you renamed the, you renamed his files DIR.1, et cetera? A. Yes. Q. What did you do then? A. I accessed them and ran them. I accessed them and, and listed them up to the screen. Q. How did -- THE COURT: Wait a minute. What do you mean, you accessed them? THE WITNESS: I, I ran them as if I was running my bulletin board. BY MR. OSTROWSKI: Q. And with what program? A. With my retrieval. With the local program that the user doesn't see off the bulletin board, but it's the same concept. Q. And what happened next, after you ran your program? What did your program do with these files? A. It listed them to the screen and if I press enter it would pick them out to handle, as if to download them or to bring them. At that time I was using my retrieval which I basically called a menu. I was using this system to, to allow easy access with my system for my nephews. But I did the same thing at that particular time. Q. Did you set up a file retrieval for Ron Wagner at some point? A. Yes, I did. Q. Okay. And when was that? Was it before the meet -- A. Probably around '89. Q. Okay. 1989? A. Yes. Q. Okay. Go, take us through the next step of your work on doing this assignment with Mr. Graham. A. I, I, like I said, I didn't have files, the actual files, just the text files. Q. You didn't have the 600 or so programs that we've seen on the screen occasionally? A. Right. Q. Okay. So what, what I did was, I took -- THE COURT: A text file, is that just the listing of them? THE WITNESS: Right. That's a list of the -- THE COURT: A menu? Or is that something different? THE WITNESS: It's something slightly different. THE COURT: How slightly? THE WITNESS: A menu will give you an option to choose from different areas, or different commands to execute. THE COURT: So this was just a listing from which you couldn't select particular ones. THE WITNESS: You -- but this, this is like one of the specific menu areas to look at a listing of files. THE COURT: Like a table of contents at the front of a book? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. Now, could, could you execute any programs at that point in your work? A. Yes, we could. That was the main, whole thing, to execute programs. Q. Well, I'm not talking about executing your program. Your program is a -- retrieved files? A. Yes. That, the whole thing was to allow my nephews and businessmen or anyone to retrieve files off their hard drive and execute them. Q. But I'm asking you about when you're, when you're trying to put this assignment together and you're, you're using his text files, could you get to the point where you could actually run any programs that you retrieved? A. Yes. I, what I did, I added the text files to, to match names of the files that were on my hard drive so I could execute those files. THE COURT: The DIR.1 and 2, and so forth? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. So you took files from your hard drive imitating files on the CD Rom or -- A. Yes. Q. -- am I wrong? A. You're right in that. THE COURT: Yes, you're wrong, huh? Yes, you're right. Go ahead. BY MR. OSTROWSKI: Q. Okay. And what did you do next after, after that process? What was the next thing you did as far as producing a file retrieval program? A. Well, I started, as I mentioned to you, coaching Richard on how to set up his, the files that were on his CD Rom drive to match the procedure that I was setting up. Q. And how did -- let me ask you this. Where did you get the ideas for your file retrieval program at that point? THE COURT: Where had he? He already had them, right? MR. OSTROWSKI: Yeah. BY MR. OSTROWSKI: Q. Where did you get them from? A. My concept in programming is, I program for morons. Sometimes I say I program for children. But I try to program in such a way where whatever the person wants to do -- THE COURT: So called friendly? THE WITNESS: Right. So I just pop up something that a person can do without thinking, not that the person is not smart, but an accountant would rather spend time concentrating on his accounting and not running a program and doing DOS commands. A mechanic, the same thing. Everybody might not want to be a computer buff like me. They use it as a tool. So I got a concept from just making ideals, making everything easy to use. BY MR. OSTROWSKI: Q. What about the -- now, what is -- you've heard the term source code in the trial. Do you write source code? A. Yes, I do. Q. In your programs? A. Yes. Q. And where do you get the ideas for your source -- where did you get the idea for your source code for these file retrieval programs that you've testified about? A. It's hard for me to see in a specific time the whole concept of what I'm doing now, and, it's something I was doing when I got my first PC, that first pocket computer. Q. Okay. And where did you get those ideas from? A. From my mind, just think them up. Q. Did you copy your file retrieval out of a book? A. No. Q. Did somebody tell you how to do it? A. No. Q. Okay. MR. OSTROWSKI: I know I have -- are we going till 12:00, Your Honor? THE COURT: 12:00 o'clock. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. I know I cut you off at that point when you were asking, you were about to say you were going to instruct Mr. Graham about setting up his files. Now, perhaps you could elaborate on that. I forgot the exact question I asked you. A. I, I went to Richard's house about a week later to give him a progress report, and I put the -- I put the system on, and I told, I had already told him on the telephone how -- Q. What do you mean, you put the system on? A. The, the DIR's, the text files, in a directory. Q. What did you put it on? A. On his hard drive. Q. You put his DIR files on his hard drive? A. Yes. Q. And anything else? A. My retrieval program. Q. In what language? A. In Quick Basic. Q. Now, was there anything on this program to identify who wrote it? A. Because I was calling Richard on the telephone and, and working with him as far as setting up directory structure, I mentioned, I, I did mention Richard's name as collaborator because I was talking with him. Q. No. I'm just saying, what, what was on there to identify this program? As to who wrote it, or who owned it, or whatever? A. Well, the first, the first version said, did say file data base manager, because I hadn't, hadn't removed my -- I hadn't, I hadn't renamed it to customize it for Richard. Q. Okay. A. It was FDM. Q. What is file data base manage -- how long, where did that name come from? A. That's, that's what I use to access my files, to manipulate them for my BBS. Q. Do you mean that's what you call it, or is that a code, is that a command? A. That was the name that I was calling it at that time, before I started working with Richard. Q. Okay. And -- THE COURT: What did you call it, F -- THE WITNESS: File data base manager. BY MR. OSTROWSKI: Q. Okay. And the first version, you said you met with Richard about a week later. Was that, are we into April now? A. Yeah. It -- Q. Late March, where are we? A. Probably around the 1st of April, or late March. All of it happened around in that particular time. It happened kind of fast between March and April. Q. The first program that you put into Richard's hard drive, the first file retrieval, what identification marks did it have on it, as far as who wrote it or who owned it, or anything like that? A. It says, I'll tell you exactly what it says. Q. Okay. A. But I think some explanation should be in order. But it says -- Q. Well -- THE COURT: You've got three minutes. MR. OSTROWSKI: Okay. THE WITNESS: -- copyrighted by Larry James for the Night Owl Retrieval Service. Written by Larry James. Collaborated with Richard Graham. Rich was my friend. MR. OSTROWSKI: Well -- THE WITNESS: And I was trying to give him some credit. BY MR. OSTROWSKI: Q. Now, was -- MR. KITCHEN: Excuse me. Do I understand that's what it said? All that? THE COURT: Yes. It said right on the screen that Mr. James was Richard's friend. MR. KITCHEN: That's what the answer is. Okay. THE COURT: That's what the answer is. BY MR. OSTROWSKI: Q. Mr. Graham then erased that part. Now, where would that appear -- THE COURT: So what was on the screen? MR. KITCHEN: Is that, is that an offer of proof, testimony of Mr. Ostrowski? THE COURT: What was -- BY MR. OSTROWSKI: Q. What was on the screen, Mr. James? THE COURT: Quote, unquote. MR. OSTROWSKI: Exactly. THE WITNESS: Copyrighted by Larry James for the Night Owl Computer Service. Written by Larry James. Collaborated with Richard Graham. BY MR. OSTROWSKI: Q. Okay. You don't have any notes in front of you right now, do you? A. No. Q. Okay. Where, where would that appear to the user of a program? A. When you first started off. Q. Was there any other identifying marks as to authorship or ownership? A. It said the same thing when you exit off. Q. Okay. Now, did you physically bring that over to Mr. James' -- Mr. Graham's -- THE COURT: Sounds like sort of, is this a breaking point? MR. OSTROWSKI: Okay. Yeah. I can break now, Your Honor. THE COURT: I think we're getting into a lot more than -- all right. Now, I can be in touch with both of you, Mr. Kitchen, Mr. Ostrowski, as soon this afternoon as I know what the schedule is going to be. Obviously nothing has come through to me yet from Mr. Price, although I might call him now, if not on the record, to see if he's heard anything about the results of the biopsy. Off the record. 635 I N D E X Witness Dir Cross Redir Recr Larry D. James 656 Exhibit Ident. Evidence Defendant's 16 696