Phoenix CD 5.0/Phoenix-CD 5.0.iso/nightowl.011

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                     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