VOL.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,

-vs- 09-CR-121S

SHANE BUCZEK,

Defendant.
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Proceedings held before the

Honorable William M. Skretny, Part IV,

U.S. Courthouse, 68 Court Street,

Buffalo, New York on March 2, 2010.

APPEARANCES:

MARY CATHERINE BAUMGARTEN,

Assistant United States Attorney,
Appearing for the United States.

SHANE BUCZEK,
Appearing Pro Se.

BRIAN COMERFORD,
Assistant Federal Public Defender,
Appearing as Standby Counsel for Defendant.

Michelle L. McLaughlin, RPR,

Official Reporter,
U.S.D.C. W.D.N.Y.
(716)332-3560
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1 I N D E X

2 OPENING STATEMENT PAGE

3 Ms. Baumgarten 7

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1 (Jury not present in the courtroom.)

2 THE COURT: Here's what we're going to do.

3 I take it the -- we are resumed in the case of

4 United States of America versus Shane Buczek. The

5 attorneys and Mr. Buczek are back present. I will

6 have the jurors come back in in just short order.

7 They will be sworn. That will be the official

8 commencement of the trial. I will give a very

9 brief greeting to the sworn jury. I will give a

10 preliminary charge tomorrow, not today. But I will

11 essentially put the jury on notice that what the

12 attorney says is not evidence, and then we'll go

13 from there.

14 And then, Mr. Buczek, whatever you choose to do

15 tomorrow, we'll either proceed directly to the

16 government's proof or -- or the charge depending --

17 or the opening depending on what the parties are

18 ready to do tomorrow morning. But we'll start at

19 2:00 o'clock tomorrow. I'm going to ask the jury

20 to be here about 1:45. Mr. Buczek?

21 MR. BUCZEK: Yeah. Remember this morning

22 we were just briefly talking about getting an

23 adjournment and it was denied and all that. If, as

24 the trial going on and I do I have one individual

25 that I want to have testify, and is there a way

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1 to -- if he can't make it till, say, early next

2 week, is that still possible? Because there's

3 nothing I can to do, Judge. This is -- I thought I

4 knew -- you know, this is new to me. This is like

5 playing ice hockey with short --

6 THE COURT: Well, Mr. Buczek, as I

7 mentioned to you, I cannot treat you any

8 differently than anybody else.

9 MR. BUCZEK: And I'm not asking you to.

10 THE COURT: Okay. Well, let's get started

11 with opening statement of Ms. Baumgarten, and we'll

12 have the jury brought in.

13 There will be a maximum limitation of 30

14 minutes.

15 (Jury seated.)

16 THE COURT: Okay. Welcome back, ladies

17 and gentlemen of the jury. It's good to see you.

18 I know you just did get comfortable, but as I

19 mentioned, the start of the trial is with the

20 administering of the oath, so if you wouldn't mind,

21 please stand, and I'll have the oath administered.

22 (Oath administered.)

23 THE COURT: All right. Thank you very

24 much. If you look at the four walls, now, this is

25 where they really mean something because everything

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1 that you can properly consider is what is admitted

2 into evidence in this case, and that becomes

3 competent evidence for your consideration in

4 reaching a resolve of the factual issues that may

5 be in dispute in this case. You are the judges of

6 the facts. I will give you the law.

7 We're going to get right on to do one thing

8 this afternoon, and that is to present you with an

9 opening statement. It will be the opening

10 statement of the government, the United States,

11 through the person of Mary Baumgarten, the

12 assistant United States attorney.

13 So that you know, the indictment in this case

14 and the count that you will be addressing is a bank

15 fraud charge. You will hear perhaps more specifics

16 on that. It is in violation of Title 18, Section

17 1344. As in every case, the charge is just that, a

18 charge. It is not evidence, and, guess what? What

19 the attorneys tell you at this point in their

20 opening statements, if there are to be two, there

21 can be just Miss Baumgarten's, but today only

22 hers -- that is not evidence. The purpose and

23 intent of an opening statement is essentially to

24 give you a roadmap for the case and what in the

25 best judgment of the lawyer is expected to be the

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1 evidence, and that should help in terms of the job

2 that you have to use your common sense, experience,

3 and intelligence in arriving at a unanimous

4 verdict.

5 Keep if mind that if there's ever any

6 discrepancy from, for example, what you learn

7 during the course of trial from the witnesses and

8 maybe what you've heard argued to you in the

9 opening statement -- and that differs from a

10 closing argument, because the closing argument

11 really is, in essence, a summation of the evidence.

12 An opening statement tunes you in to what may

13 likely follow, but it does not permit the attorney

14 or the person giving the opening statement to make

15 argument. It's simply a foreshadowing of what you

16 will likely hear. That's an important distinction.

17 But in any event, what is stated is not evidence.

18 What follows in the case from the witnesses will be

19 the evidence. If there's any discrepancy, if

20 there's a reference to the law, remember I'm the

21 only one that gives you the law to follow in this

22 particular case, and I will monitor the evidence so

23 that what you get to consider if you choose to is

24 competent evidence.

25 So with that -- and keep in mind personalities

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1 of the Court, the individuals, the attorneys,

2 that's all not relevant. And we're going to talk

3 about the types of evidence that there is, and

4 we'll talk about that tomorrow, because there are

5 different types of evidence. There are different

6 steps that you can take in your consideration of

7 that evidence, and you must always though follow my

8 instructions and apply your common sense, your

9 experience, and your intelligence to what is

10 produced for you by way of evidence and what you

11 hear to assist you in considering that evidence.

12 So you're now ready. I think the government's

13 ready, Miss Baumgarten.

14 MS. BAUMGARTEN: We are, your Honor.

15 THE COURT: All right. And you may begin

16 with your opening statement please.

17 MS. BAUMGARTEN: May it please the Court.

18 THE COURT: Yes.

19 MS. BAUMGARTEN: Good afternoon, ladies

20 and gentlemen of the jury. This is a first of two

21 opportunities I will have to speak with you. This

22 is the opening statement, as mentioned by the

23 Court, and then I'll have an opportunity at the

24 close of the proof.

25 This is a bank fraud case. The defendant is

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1 charged with bank fraud. As the Court already

2 advised, there is involvement of the defendant. He

3 went to a Best Buy location in Hamburg, New York,

4 and we intend to prove that through the witnesses

5 that we will call that he made purchases several

6 times moving up more expensive purchases as time

7 progressed to large ticket items, never intending

8 to pay for those items. He purchased them by using

9 a Best Buy credit card. He completed a Best Buy

10 credit card application. We intend to call a

11 witness from Best Buy who will discuss that

12 application, the purchases, introduce the receipts

13 for the jury's consideration, and also the

14 nature -- from the time that the application first

15 occurred in September of 2008 up to and including

16 the last purchase at the end of November 2008.

17 Additionally, we will call witnesses from -- at

18 least one from HSBC Bank. Not only will the Best

19 Buy witness testify concerning the credit card

20 account and that it's actually owned by HSBC, but

21 so will the HSBC witness. That witness will

22 testify about the records that are maintained by

23 HSBC, the contacts by the defendant to the bank,

24 and most importantly, the defendant's attempt to

25 pay his HSBC credit card account using a bank

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1 account that he alleged or asserted that he had at

2 the Depository Trust Clearing Corporation.

3 The Depository Trust Clearing Corporation will

4 also produce a witness, and we will have that

5 witness testify. That witness we expect will state

6 that the defendant never had a bank account at

7 Depository Trust, that individuals do not have

8 accounts at the Depository Trust, no bank accounts,

9 no checking accounts and no savings accounts. So

10 that, in fact, the information that was provided by

11 the defendant to HSBC that the jury will hear

12 testimony concerning and also will see records that

13 that account at Depository Trust never existed.

14 That, in fact, it was fictitious.

15 Additionally, we anticipate calling a witness

16 who will testify that in a prior proceeding the --

17 THE COURT: Miss Baumgarten.

18 MS. BAUMGARTEN: -- before the defendant

19 actually applied for the HSBC credit account that

20 he, in fact, heard testimony from a witness, an

21 employee of Depository Trust, that the defendant

22 did not have an account at Depository Trust, that

23 individuals did not have accounts at Depository

24 Trust, no banking at all by individuals. But, in

25 fact, the Depository Trust was simply a clearing

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1 house for securities transactions. That's

2 important in terms that it predated, and we

3 anticipate having testimony that the defendant was

4 sitting during a proceeding when that testimony was

5 heard by him.

6 We also anticipate calling witnesses who will

7 testify with respect to -- from the Internal

8 Revenue Service that no such accounts exist that

9 are either trust accounts for the benefit of the

10 defendant either at the Internal Revenue Service or

11 the Treasury Department. We also anticipate having

12 witnesses testify, in particular a FBI agent, who

13 will testify concerning his interview of the

14 defendant twice in December 2008. And during the

15 course of that interview, the defendant actually

16 admitted not only to purchases at Best Buy, but

17 also obtaining the credit from HSBC Bank.

18 Additionally that FBI agent will testify that a

19 search warrant was executed at the location at

20 which the defendant was residing. And that search

21 warrant was executed in January 2009. And during

22 the course of the execution of that search warrant

23 that the purchases that the Best Buy records

24 demonstrate that the defendant actually purchased

25 the merchandise, the large screen TV, the iPod

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1 Nano, the home theater system, all of those items

2 were seized during the course of the search of that

3 execution of that search warrant.

4 I understand that each of you have taken the

5 oath and that you've listened carefully to what the

6 Judge says. The facts and circumstances will come

7 from the witnesses that we are going to call, not

8 from what I say. Importantly I think that as each

9 of you sit here and evaluate each of the witnesses

10 that the government expects to testify and looks

11 at, not only what those witnesses say, but the

12 numerous documents that we anticipate will be

13 introduced into evidence, that you evaluate not

14 only what they say, but what their motivation is

15 for saying it. As I said earlier, I anticipate

16 each of those witnesses to discuss the numerous

17 documents that we anticipate will establish not

18 only that the defendant understood that he did not

19 have an account prior to the purchases at Best Buy,

20 but that he understood he did not have an account

21 at the Depository Trust.

22 Additionally, we anticipate that there will be

23 witnesses from the Social Security Administration

24 who will testify with respect to the defendant's

25 Social Security account -- excuse me, his Social

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1 Security number, and the actual documentation that

2 he received along with that Social Security card.

3 We anticipate that witness will also testify that

4 there are no trust accounts, secret or otherwise,

5 that attach to an individual Social Security

6 number, and there are no trust accounts, secret or

7 otherwise, that attach to numbers that are on the

8 reverse of an individual's Social Security number.

9 We anticipate further that there will be a

10 witness who will testify from the United States

11 Probation Office that the defendant actually was

12 present during the prior proceeding at which the

13 Depository Trust witness stated that there was no

14 bank account, that the defendant did not have a

15 bank account, and really set the foundation for the

16 facts that the defendant, when he provided that

17 information to HSBC, never intended to have monies

18 transferred from an existing bank account in his

19 name to pay the HSBC credit account that he had

20 charged. When the HSBC -- excuse me, when the Best

21 Buy individual testifies, I anticipate that there

22 will be not only testimony that the defendant

23 actually received credit, but the credit amount. I

24 anticipate that that witness will testify that the

25 credit limit that the defendant was actually

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1 approved to receive was approximately $3,300. The

2 government also expects that from the HSBC witness

3 we will elicit testimony that, in fact, the amount

4 of services and actual merchandise purchased by the

5 defendant during the course of September 2008

6 through the end of November 2008 greatly exceeds

7 that 3,300-dollar amount.

8 We expect through the testimony of that HSBC

9 witness and also the computerized records that we

10 expect the jury to be in a position to consider

11 will establish the defendant's course of conduct

12 throughout November -- September 2008 through

13 December 2008 that he continued to attempt to use

14 those same means to pay off the credit balance that

15 was existing. And on each occasion when the

16 defendant actually did either telephone and speak

17 with a representative from HSBC or used their

18 automatic direct check function, that the temporary

19 effect of the defendant doing that increased the

20 amount of credit that was available to him. We

21 expect the HSBC witness will testify and will

22 provide information to the jury that, in fact, that

23 was a temporary effect, but permitted the defendant

24 actually to purchase additional items, and that the

25 defendant's trips out to Best Buy closely connected

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1 to the attempts that he made on six different

2 occasions. So that he was able then because of the

3 temporary lifting of the credit amount and the

4 increase in the credit availability, the defendant

5 actually was able to purchase more merchandise.

6 Through the course of the trial I will be

7 asking questions of the witnesses. As the Court

8 has instructed, it is not what I say that is

9 important or what the jury should consider.

10 Realistically it's what the witness says in

11 response to each of the questions. I ask you to

12 keep an open mind with respect to what each of the

13 witnesses says. To the extent that we have

14 witnesses who will be traveling from out of town,

15 we may take witnesses out of order. That's

16 particularly important with respect to not closing

17 your mind and really considering the evidence and

18 the information that you hear from the witnesses as

19 we proceed. Thank you.

20 THE COURT: Okay, Miss Baumgarten. All

21 right, ladies and gentlemen, you've heard more

22 specifics on what the case is about and what's

23 expected. Keep in mind the government has the

24 exclusive burden of proof beyond a reasonable doubt

25 on each essential element of the crime charged.

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1 And we'll get into the specifics of that a little

2 bit more tomorrow. Remember too that the defendant

3 is presumed innocent and he remains presumed

4 innocent until if at any time he becomes proven

5 guilty beyond a reasonable doubt. No obligation on

6 the defendant to do anything. The government

7 brought the case, the government must prove its

8 case. You decide the fact issues in this case.

9 I will give you a full introduction tomorrow,

10 and then we'll either go into that directly or, you

11 know, we'll immediately transition into a

12 presentation of the witnesses' evidence that the

13 government chooses to call. We'll try to get to it

14 as soon as we possibly can.

15 You should be here 9:30 -- 2:00 o'clock will be

16 the starting time in court. But if you can get

17 here by 1:45, that will be helpful, and we'll be

18 wrapping up about 5:00 o'clock.

19 Okay. Be safe. Keep your minds open. Don't

20 do any independent research. Remember, you're

21 going to be tapping into your common sense, your

22 intelligence, your experience in working towards a

23 unanimous verdict in this case. You've been

24 terrific. I know it's been a long day. Thank you

25 very much, and we'll see you tomorrow what time?

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1 Good enough, 1:30, 1:45. Thank you.

2 (Jury excused from the courtroom.)

3 THE COURT: We should see everybody here

4 about 1:45 tomorrow. Thank you.

5 MR. COMERFORD: Judge, Mr. Buczek wanted

6 to ask about the subpoenas he has. Could we hold

7 that off until tomorrow or --

8 THE COURT: What's the issue with respect

9 to subpoenas?

10 MR. BUCZEK: The whole issue I had was the

11 condition, remember the condition -- they're

12 something -- they're third party.

13 MR. BRUCE: We do not -- let me take the

14 microphone. Because of some of Mr. Buczek's

15 behavior, magistrate judge has ordered him

16 basically to have no contact with any government

17 agencies. To the extent that he needs subpoenas

18 served locally on government agencies, if he

19 personally or he, through Mr. Comerford, will

20 inform me or give me the subpoenas, assuming that

21 we don't move to quash them, we will ensure that

22 local people from local agencies are here at the

23 beginning of his case. But obviously we're not

24 going to deal with whether he can put these people

25 or not. The simple service of a subpoena does not

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1 solve that.

2 THE COURT: Does that help you any?

3 MR. BUCZEK: I'll give it to Brian. Thank

4 you. That's all. Thank you.

5 * * * * * *

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 1 CERTIFICATION

3 I certify that the foregoing is a

4 Correct transcription of the proceedings

5 Recorded by me in this.

8 s/Michelle L. McLaughlin
Michelle L. McLaughlin, RPR
9 Official Reporter
U.S.D.C., W.D.N.Y.
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