Steven P. Jacobson

Steven P. Jacobson

Pre-Trial Evidentiary Hearings

February 18, 2004

DISTASO: Your Honor, before we get going, the court has all of the wiretap documents. I wanted the Court to actually take judicial notice of the instructions. If the Court doesn't have that, I can have -- the investigator brought a copy himself.

DELUCCHI: Yeah, I have this. I think I have the --

GERAGOS: I believe they are attached also as an exhibit to one of Mr. Distaso's responses.

DELUCCHI: I have in this group his opposition, and I think it's contained in that, Mr. Distaso.

DISTASO: Okay, your Honor, as long as there is no issue with -- if the Court is comfortable with it, that's fine.

DELUCCHI: Mr. Geragos, excuse me, is there a dispute as to the directions that Mr. Distaso gave to Mr. Jacobson, or can I take judicial notice of what was said? Is there an issue as to what he was told? This is set forth in the opposition.

GERAGOS: The directions that Mr. Distaso attached, there is no objection to, and you can take judicial notice of that. There may be issues surrounding before and after.

DELUCCHI: I'll take judicial notice of the instructions that you, in fact, gave to Inspector -- or Sergeant?

JACOBSON: Sir, I'm just a commoner, as I told Mr. Geragos last time? Inspector, detective, Steve, investigator.

DELUCCHI: Investigator?

JACOBSON: Steve. Whatever The Court want to address me.

DELUCCHI: Do the direct title, Investigator Jacobson. Now, hold on, Mr. Distaso. I got -- I do have -- we reviewed those this morning. And do you have your -- I have the opposition that was filed on January 26th, 2004. That is contained here; is that correct? What you told the investigator?

DISTASO: Was it filed 2003, perhaps.

DELUCCHI: It was filed in San Mateo County. It was initially filed -- initially filed in Stanislaus County August 13th.

GERAGOS: I have that.

DELUCCHI: It was filed in San Mateo County. Excuse me. Do you have -- memory is correct in that, that you set forth -- in that particular response you set forth the information that you gave to the witness here? Am I correct?

DISTASO: That's correct. I actually gave very detailed, lengthy instructions. I only quoted that section because that section was the section dealing with confidential communications.

DELUCCHI: Then I have to see that, in some way, shape, or form. I can't take judicial notice of something that I'm not aware of.

DISTASO: I'll have the investigator provide the Court a copy.

DELUCCHI: We'll just pick up with that.

DISTASO: Do you have a copy?

JACOBSON: Yes.

DELUCCHI: Go ahead.

JACOBSON: Do you want the instructions for two and three?

DISTASO: Yes.

JACOBSON: There is two.

DELUCCHI: Just one other question, Mr. Distaso.

DISTASO: Yes, your Honor.

DELUCCHI: Both sides have all the calls, except the prosecution has none of the calls. They are all sealed that relate to this attorney-client privilege; is that correct?

DISTASO: That's correct.

GERAGOS: Prosecution, meaning Mr. Distaso, Mr. Harris. Obviously the agents. Prosecution have those calls, have listened to those calls?

DISTASO: I can even be a little more limited than that. Only one actually listened to those particular calls is Investigator Jacobson, or the actual agents who were monitoring at the time. No one else.

DELUCCHI: Because you -- my understanding, in reading the moving papers, ordered that all these phone calls be sealed.

DISTASO: That's exactly right.

JACOBSON: Your Honor, there is one call that I haven't listened to. The defense and the Court stated I couldn't listen to, out of the 176 recordings that were in the audio buffer that were turned over to the defense.

DELUCCHI: There is one that you have not heard?

JACOBSON: There is one that I have not heard that was from the defense counsel.

GERAGOS: That's correct. I made representation, I was given -- those items were provided to me by the judge. I made a representation that it was a violation, or a been a violation of the defense call on that one. They have not listened to that. They claim they have not listened to it.

DELUCCHI: Fair enough. Go ahead.

DISTASO: Let me just mark these instructions. Going to be marked 3 and 4.

DELUCCHI: People's Number 3 and 4, instructions that were given to the investigator with respect to how he would conduct the wiretap?

DISTASO: That's correct.

Direct Examination by Rick Distaso

DISTASO: Investigator Jacobson, where are you employed?

JACOBSON: I'm employed by the Stanislaus County District Attorney's Office in

Modesto.

DISTASO: And how long have you been a sworn peace officer in the State of California?

JACOBSON: Working on my 13th year.

DISTASO: And what is your current assignment in the District Attorney's Office?

JACOBSON: I work on the major narcotic task force.

DISTASO: And as part of your duty there, are you involved in wiretap operations?

JACOBSON: I am.

DISTASO: And are you familiar with all aspects of Stanislaus County Wires 2 and 3?

JACOBSON: Yes, I am.

DISTASO: Are those the wiretaps used in the case against the defendant here in court today?

JACOBSON: Yes, sir, they were.

DISTASO: Can you briefly tell the Court what training you have had regarding wiretaps? You can keep it fairly brief.

JACOBSON: Okay. Formal training included some classroom instructions from the California Attorney General's office through the California Department of Justice. And I have also on-the-job training.

DISTASO: Have you actually -- have you gone to other agencies while they were conducting wiretaps and participated in their wiretap operations as well?

JACOBSON: Yes, sir, I have.

DISTASO: And have you ever been involved in wiretap operations on the Federal level?

JACOBSON: Yes, I have.

DISTASO: Now, are you familiar with how a -- well, what is a wire room?

JACOBSON: A wire room basically is an area designated to listen to wire intercepts.

DISTASO: Is there a limited access to the wire room?

JACOBSON: Yes.

Rick Distaso Who is allowed to be present there?

JACOBSON: The people monitoring the intercepted calls and the supervisors.

DISTASO: And in order to be an actual monitor, do you have to have certain training or experience?

JACOBSON: Yes, sir, you do.

DISTASO: What's that, just briefly?

JACOBSON: You have to attend a class put on by the California Department of Justice through the Attorney General's Office to become certified. It's an eight-hour class.

DISTASO: And that's to actually monitor calls on wiretaps?

JACOBSON: Yes, sir. For the State of California, yes.

DISTASO: And can you tell the Court just briefly what's the chain of command in the wire room? How does that work?

JACOBSON: Basically you have the monitors who are there to intercept the phone calls. Those monitors report to a supervisor. Those supervisors usually report to a case agent or a affiant of the wiretap affidavit.

DISTASO: In this particular case, you were the wire room supervisor for -- basically you were in charge of pretty much both wiretaps; is that right?

JACOBSON: Yes, sir.

DISTASO: How many agents are typically involved -- how many agents were involved in monitoring these particular wiretaps, do you know?

JACOBSON: I could count the number. But do you want an estimate?

DISTASO: Just give me an estimate right now.

JACOBSON: I'd probably say there was at least 10 to 15 monitors, and four wire room supervisors for each wiretap. That's Wiretap Number 2 and Wiretap Number 3.

DISTASO: And can you just briefly take the Court through what happens -- okay, a wiretap authorization is granted by the judge, correct?

JACOBSON: Yes, sir.

DISTASO: Then the wire room is set up.

JACOBSON: Yes, sir.

DISTASO: And what happens when a call comes into the wire room?

JACOBSON: What you have basically within that room that you just talked about is, you have a collection server, and then a database that supports that collection server to have calls intercepted and/or monitored. What happens, you have a call that comes in, you receive your information from two different sources, such as this particular wiretap through AT&T. We received data through one channel, and then audio through another. This collection server marries up the audio and data together. It sends it to a monitor who is then able to minimize the call and see the call coming in.

DISTASO: Okay. And the call comes in. Each individual monitoring station has a computer?

JACOBSON: Yes.

DISTASO: Just so we're clear, Wiretap Number 2 was the wiretap on the defendant's

telephones, correct?

JACOBSON: Yes.

DISTASO: What telephone numbers were used in that wiretap?

JACOBSON: In Stanislaus County Wiretap Number 2, it was area code 209-499-8427 and 209-505-0337, both from AT&T subscribers.

DISTASO: From Wiretap Number 3 again, who was the authorized target of that wiretap?

JACOBSON: Mr. Peterson.

DISTASO: The defendant?

JACOBSON: Yes.

DISTASO: And which phone numbers were subject to the wiretap?

JACOBSON: There were two phone numbers, one of which we ended up going up on.

DISTASO: Let me stop you. So there were two phone numbers authorized?

JACOBSON: Yes.

DISTASO: What were those?

JACOBSON: The first one was the same repeat from Stanislaus County Wiretap Number 2. That was area code 209-505-0337. And then the second was 858-232-2203.

DISTASO: And was -- and the 209-505, that number was monitored, correct?

JACOBSON: Yes.

DISTASO: What about the 858 number?

JACOBSON: It was not monitored. Calls were not intercepted from that number.

DISTASO: Why was that?

JACOBSON: We found out when we were getting ready to go up on this number that there was no activity that had been occurring within a period of time, so we chose not to do any interception over that line. There was no activity, basically.

DISTASO: What wiretap language -- so we're all talking about the same terms, what does "intercept a call" mean?

JACOBSON: Basically what happens is, you are a passive party on a line. You are intercepting that call that's being made between callers.

DISTASO: So intercept a call, just so I'm clear, means a call is made on the phone, it comes to your wire room to the monitoring station?

JACOBSON: It's a little bit more complex than that, but essentially, yes.

DISTASO: In a nutshell, is that fair?

JACOBSON: In a nutshell, call is made.

GERAGOS: Objection. Calls for speculation. Vague.

DELUCCHI: Getting to the point.

DISTASO: Okay. What does –

DELUCCHI: Sorry, next question.

DISTASO: What does minimize a call mean?

JACOBSON: Minimize means that you are going off the line. That you are not hearing any more audio. You are still receiving the data. You are no longer receiving the audio, audio portion of the call.

DISTASO: Oh, so if a call comes in, you are the monitoring agent, be able to minimize kind of at will. They can go on or off a call as they choose?

JACOBSON: Yes.

DISTASO: And monitoring a call, what does that mean?

JACOBSON: Monitoring the call basically means that you are monitoring this call that has been intercepted.

DISTASO: So you are receiving data and listening to the call?

JACOBSON: You are receiving data, and you are listening to the audio while you are monitoring.

DISTASO: What is a –

DELUCCHI: Let me interrupt. What's the difference between the data and the audio?

JACOBSON: The difference, your Honor, is that you have two different sources of information that you are receiving, depending upon the different telecommunications service providers. Specifically for AT&T, we got our data through Bothell, Washington, through a VPN that we established over the Internet. That information, that data we received through the connections basically to the collection server. The audio comes straight from the home switch that he is at, or wherever the switch is that the person is roaming, so we get the audio through basically PSDN.

DELUCCHI: What's the difference?

JACOBSON: Audio is the voice portion of the conversation, and data is the duration of the call, who is -- basically the number being called, the duration of the call, where the person is located at, and cell switch locations, et cetera.

DISTASO: What's a pertinent call in wiretap language versus a non-pertinent call?

JACOBSON: A pertinent call is basically a call that we believe will have evidentiary value in your case in chief, basically.

DISTASO: So a non-pertinent call is a call that you don't believe there is evidentiary value?

JACOBSON: That's correct.

DISTASO: When you are monitoring calls, are you allowed to just turn on the mic and let the call go, and you can listen to every call that comes in, good, bad, indifferent, the entire thing?

Steven Jacobson No, sir.

DISTASO: Okay. How can you explain the minimization procedures for non-

privileged calls? Don't go to privileged calls yet. Just go to basically non-pertinent calls. Explain that to the judge.

JACOBSON: Basically, California state law requires that you minimize on non-pertinent or non-privileged calls that do not have known pertinent information.

DISTASO: Let me stop you –

GERAGOS: Objection. He hadn't finished his answer.

DELUCCHI: Yes, Mr. Distaso.

DISTASO: I'm sorry.

DELUCCHI: California requires that you minimize non-pertinent calls, right?

JACOBSON: That's correct, your Honor.

DISTASO: Let me give you an example. If a call came into this particular wiretap and the defendant was speaking to –

GERAGOS: Me?

DISTASO: Not with Mr. Geragos. We're not talking about pertinent calls.

JACOBSON: Let's say he's ordering a pizza.

DISTASO: There is a good -- say he's ordering a pizza. Would that be a call that the monitor would consider a pertinent call?

JACOBSON: No. It would be considered a non-pertinent call. It would be a call that you would minimize on, basically.

DISTASO: And tell the judge now what minimization means, how you work that.

JACOBSON: Well, as I stated previously, California state law requires that you minimize on non-pertinent related calls. However, in California state law, they specify an actual period of time in which you shall minimize for. So we use the Federal system which has been established in U.S. Attorney's office in Fresno, and the Eastern District, for the time in which we minimize.

DISTASO: Okay. The Federal system, they established some guidelines regarding the minimization?

JACOBSON: Yes.

DISTASO: And you follow those?

JACOBSON: Yes.

DISTASO: Were those standards applied to this particular case?

JACOBSON: Yes.

DISTASO: And what are those standards? Can you explain those?

JACOBSON: Basically the minimization, basically non-pertinent to non-privileged information is 30 seconds.

DISTASO: What does that mean? Tell me how it comes into -- the call comes in, he's ordering a pizza, you go off the line?

JACOBSON: We go off the line for thirty seconds, then we come back on for up to two minutes to determine the nature of the call.

DISTASO: Okay. What if he's still ordering the pizza?

JACOBSON: Then we go off line for another thirty seconds.

DISTASO: You kind of do this procedure until what?

JACOBSON: Until either the call ends, or that we feel that the call is going to continue to remain non-privileged throughout the entire duration, so there is a longer minimization.

DISTASO: You said non-privileged. Did you mean non-pertinent or non-privileged?

JACOBSON: Non-privileged, non-pertinent.

DISTASO: Now, can you explain the minimization procedures for privileged calls?

JACOBSON: Yes, I can.

DISTASO: Go ahead.

DELUCCHI: First of all, what is a privileged call?

JACOBSON: A privileged call is basically a call in which a person is discussing

communications amongst his lawyer, parishioner, clergy.

DELUCCHI: Normal privileges?

JACOBSON: Normal privileges.

DISTASO: Are those -- are the procedures set out for privileged calls, are those actually dictated in the statute?

JACOBSON: Yes, they are. They are 629.80 of the California Penal Code.

DISTASO: Were those statutory guidelines followed in this particular indication?

JACOBSON: Yes.

DISTASO: When was Wiretap Number 2 authorized?

JACOBSON: Wiretap Number 2 was authorized on January 20th of 2003.

DISTASO: And when did it terminate?

JACOBSON: Terminated on February 4th of 2003.

DISTASO: And why did it terminate?

JACOBSON: It terminated for variety of reasons, one of which, most important is, I felt that Mr. Peterson would no longer be discussing information -- evidentiary information over either phone.

DISTASO: And once you came to that conclusion, does the statute give you direction as to what you are supposed to do with the wiretap?

JACOBSON: Yes.

DISTASO: What is that?

JACOBSON: The statute gives you direction as to periodic reporting to the magistrate who is controlling, basically, the wiretap.

DISTASO: Let me even go back a little further. When you decide as investigating agent that the wiretap is no longer going to provide fruitful information, what are you required to do?

JACOBSON: Inform the magistrate.

DISTASO: And is that -- was that done in this case?

JACOBSON: Yes.

DISTASO: And did you -- did you go to the magistrate or Judge Ladine in this case and tell him that you wanted to terminate the wiretap at that point?

JACOBSON: I did.

DISTASO: Was Wiretap Number 2 the first Stanislaus County wiretap where police officers were used as the wire room monitors?

JACOBSON: Yes.

DISTASO: And so then Wiretap Number 3 would be the second one; is that right?

JACOBSON: That's correct, yes, sir.

DISTASO: Now, were you present during the reading of the wiretap instructions to the monitors for Wiretap Number 2?

JACOBSON: I was.

DISTASO: Who read those instructions to the monitors?

JACOBSON: You yourself did.

DISTASO: Okay. Deputy District Attorney Distaso?

JACOBSON: Deputy District Attorney Distaso, yes.

DISTASO: And what date did I read those instructions to the monitors?

JACOBSON: January 10th.

DISTASO: And was a copy of the instructions placed in the wire room?

JACOBSON: Yes, sir.

DISTASO: Did all the monitors of Wiretap Number 2 sign off on the log saying that they had been read the instructions, to read the instructions regarding the wiretap?

GERAGOS: Objection. Calls for speculation.

DELUCCHI: Well, can you ask it another way?

DISTASO: Did you see him do it?

JACOBSON: Yes.

DISTASO: Did they sign the log stating that they had had the instructions read to them?

JACOBSON: Yes, sir.

DISTASO: And one of the exhibits is the instructions for Wiretap Number 2, what's the number of that one? Go ahead.

JACOBSON: Number 3 or 4?

DELUCCHI: Number 4 is Wiretap Number 2.

DISTASO: Are those the instructions that were read to the monitors?

JACOBSON: Yes, sir, they were.

DISTASO: Okay. And were the instructions also audiotaped?

JACOBSON: Yes.

DISTASO: The instructions there, it's a detailed list the judge can look at. But the part that deals with confidential communications, is that information basically verbatim from the statute?

JACOBSON: Yes, it is.

DISTASO: Now, let's go to Wiretap Number 3, the instructions. What date was Wiretap Number 3 authorized?

JACOBSON: It was authorized on April 15th, 2003.

DISTASO: And what date did it terminate?

JACOBSON: April 18th, 2003.

DISTASO: And why did Wiretap Number 3 terminate?

JACOBSON: Mr. Peterson was in custody, and the device was in police custody. Basically the facility used to communicate was in the custody of the police.

DISTASO: The cell phone was taken by the police?

JACOBSON: Yes.

DISTASO: Were you again present during the reading of the wiretap instructions for Wiretap Number 3?

JACOBSON: Yes, sir, I was.

DISTASO: Was it the same monitors who did Wiretap Number 3 who also did Wiretap Number 2?

JACOBSON: Yes, sir.

DISTASO: And on -- I think the telephone numbers -- are the instructions basically exactly the same?

JACOBSON: Yes.

DISTASO: And, again, just for the record, I, Deputy DA Distaso read those to the monitors, correct?

JACOBSON: Yes, you did.

DISTASO: Are the wiretap instructions prepared in this case in line with information provided by the Attorney General's Office regarding wiretaps?

JACOBSON: Yes.

DISTASO: Are they in line with instructions given by other District Attorneys Offices throughout the state?

JACOBSON: Yes.

DISTASO: Your Honor, just for the record, I'm going to move those instructions into evidence.

DELUCCHI: Any objection, Mr. Geragos, instructions?

GERAGOS: The instructions that they wanted you to take judicial notice of?

DELUCCHI: Yes.

GERAGOS: No.

DELUCCHI: People's Number 3 and 4 may be admitted into evidence, pretrial exhibit.

DISTASO: Now, during the course of Wiretap Number 2, were you involved in presenting periodic reports to the Court pursuant to Penal Code Section 629.60?

JACOBSON: I was.

DISTASO: And how often -- back in January of 2003, start with Wiretap Number 2, how often did the statute at that time require periodic reports be made to the court?

JACOBSON: As of January 1st, 2003, I believe it was no less than one time every six days.

DISTASO: How often, in this case, did Judge Ladine require you to make a report to him?

JACOBSON: Every 72 hours.

DISTASO: And so basically you were doing every three days?

JACOBSON: Yes.

DISTASO: And did the Court swear you to the information contained in the report, have you affirm to the information?

JACOBSON: Yes, the Court did.

DISTASO: And did the Court require you to personally meet with him, or Judge Ladine personally require to you meet with him?

JACOBSON: Yes, he did.

DISTASO: To your understanding, are personal meetings required with the authorizing magistrate?

JACOBSON: No.

GERAGOS: Objection. Calls for speculation. No foundation.

DELUCCHI: Well, if he knows. Do you know?

JACOBSON: I do know, yes, your Honor.

DELUCCHI: Overruled then.

DISTASO: And you are familiar with all calls intercepted during Wiretap Numbers 2 and 3, correct?

JACOBSON: Yes.

DISTASO: How many total calls were intercepted?

JACOBSON: Total number of calls on the logs itself, there is over 3,800 entries on the logs. Not all of those are intercepted calls. I would probably say that there was over 3,000 intercepted calls.

DISTASO: And was every single one of those calls monitored by some agent?

JACOBSON: No.

DISTASO: What minimization procedure -- we have talked about minimization procedure for non-pertinent calls. You said you used the Federal standard?

JACOBSON: Yes.

DISTASO: Was that the standard that was used for Wiretaps Number 2 and 3?

JACOBSON: Yes, sir.

DISTASO: What minimization procedure was used during the conduct of Wiretap Number 2 for privileged calls prior to Judge Ladine changing the order?

JACOBSON: Basically we were following 629.80 in the privileged communications. Basically you listen for up to 30 seconds, determine the nature of the call.

DISTASO: If it's privileged, you are on the line for two minutes.

JACOBSON: As the judge indicated, there were spot checks, or checks that were being made to see and determine the nature of the call.

DISTASO: Okay. Now, let me stop you. How many calls took place during this initial time when you were following? 629.80 how many privileged calls?

GERAGOS: Can I interrupt for a second and take him on voir dire for just one issue, particularly?

DISTASO: No. I object to, your Honor –

GERAGOS: Because I want to know who else was present with Judge Ladine, because if it was Mr. Distaso then I may ask Mr. Distaso be excused, because I may be calling him as a witness. I just want to establish that.

DELUCCHI: Be hard to do.

GERAGOS: Except if he's a witness to that, that was not reported. Can I just ask a question?

DELUCCHI: It's on cross not now. Go ahead.

DISTASO: I don't mind just asking. I was present during those meetings with Judge Ladine; is that correct?

JACOBSON: Yes.

GERAGOS: Then I'm moving to have Mr. Distaso excused. I'm going to call him as a witness. That was not stenographically recorded. There is an issue that we have raised in this case as to whether or not it should have been stenographically recorded. He's going to be a witness, Mr. Harris can conduct the rest –

DELUCCHI: Going to call Mr. Distaso as a witness as to what Judge Ladine testified to?

GERAGOS: No, judge.

DISTASO: He can cross examine investigator Jacobson all day long if he wants to. Issue is a Dustin issue which I raised. The Court can rule on it summarily. The Court doesn't need any testimony regarding that. I'll stipulate that the only -- there was no court reporter present at periodic reports of the records of those meetings. He can cross examine the investigator all day long. If he wants to call Judge Ladine as a witness, have him subpoenaed.

GERAGOS: We did have Judge Ladine subpoenaed when we were last going to hear this, and I plan on having Judge Ladine subpoenaed for whenever we get to the appropriate time to be here as well. And now after Mr. Distaso's informed me that he was a witness, and it was not stenographically recorded. Why does he have special status that allows him not to be called as a witness?

DELUCCHI: Well, because he's conducting the examination at the time right now.

GERAGOS: Then that's the best reason of all to stop. He's going to –

DELUCCHI: So he could ask you to be excluded if you were a witness to something?

GERAGOS: If I was a witness to something, I'm sure would he ask me.

DELUCCHI: I'm going to deny your request. You can call him to the stand later object if you want. Go ahead.

DISTASO: Investigator, let's go back to what minimization procedure that was used initially. Were you using the plan for 629.80?

JACOBSON: Yes.

DISTASO: Initially were you following 629.80?

JACOBSON: Yes, sir.

DISTASO: Okay. And then what -- how many privileged calls came in before Judge Ladine -- before the first meeting back with Judge Ladine where he changed the order?

DELUCCHI: First of all, how many -- I think the question was, how many-- maybe I am anticipating the question. But how many privileged communications came in that were being spot checked?

DISTASO: That's exactly the question the judge –

DELUCCHI: I read the information previously.

DISTASO: Go ahead.

JACOBSON: I could count the number of calls, but I know off the top of my head that it was the two calls in question that we were here to discuss today.

DISTASO: So the call that was taken by Investigator Hoek, and the call taken by Investigator Tovar?

JACOBSON: That's correct.

DISTASO: Those two calls came in, those are the only two privileged calls that came in while the monitors were following the procedure outlined in 629.80?

JACOBSON: Those the only two calls that were -- that came in that were monitored according to 629.80 where the spot checks being made, yes.

DISTASO: And then there was a periodic report was provided to Judge Ladine, yes?

JACOBSON: Yes.

DISTASO: Was that information contained in those two calls placed in that report?

JACOBSON: Not usually, no.

DISTASO: Tell court what happened?

JACOBSON: Basically I went into the judge's chambers to discuss the progress or the lack thereof and the wiretap investigation. I presented the periodic report, 72 hour report to the judge. A question was asked, if the minimization was being followed according to 629.80. I said it was. He asked a question regarding if all of the minimization was going was if -- McAllister, Kirk McAllister's voice was being recognized by the monitors. I said, yes, it was, but there had been an agent who delayed in recognizing Kirk McAllister's voice initially from the onset of this. At that point, we started discussing the minimization requirements. And we discussed the spot checks being involved. And Judge Ladine said that he did not feel it would be appropriate to spot check any potentially privileged calls.

GERAGOS: Once again, I object to Mr. Distaso being present for the testimony of this officer for a conversation that was not stenographically recorded, because he's one of the only three or four people in the room. I think it's inappropriate. And if the Court is allowing me to call him as a witness, there is no reason that this should be an exception to the exclusion order that's already in effect.

DELUCCHI: Overruled. Go ahead.

DISTASO: And at that point, what instructions were then given to the monitors?

JACOBSON: Judge Ladine told me not to spot check any calls made between Kirk McAllister and the defendant Scott Peterson. He said when they converse, when a call comes in, or there is an outgoing call made from Scott Peterson to or from Kirk McAllister, that once that call is established, to get off the line.

DISTASO: Okay. Were those instructions passed on by you to the monitoring agency?

JACOBSON: Yes.

DISTASO: Did you -- then did Judge Ladine then request you change the periodic report to reflect this additional information?

JACOBSON: Yes.

DISTASO: Did you do that?

JACOBSON: Yes.

DELUCCHI: Let's go back to that. Let me see. Change the periodic report to what?

JACOBSON: Initially I had a paragraph concerning the minimization. Judge Ladine wanted me to expand on that minimization and that same 72 hour report.

DELUCCHI: Say what, that you were not having any spot checks?

JACOBSON: Basically.

DELUCCHI: That he didn't feel comfortable with spot checks being made on potentially privileged calls.

DISTASO: And these periodic reports have all been filed with the court, correct?

JACOBSON: Yes.

DISTASO: Do you have copies with you there?

JACOBSON: I do.

DELUCCHI: Mr. Geragos would like to have them marked.

GERAGOS: I want them marked. I don't know that I want them as part of the public record.

DISTASO: Well, I guess the Court has -- There is ten total.

DELUCCHI: Do you want them -- mark them 5-A through -- A, B, C, D, E, F, G, H, I, J. 5-A through J.

DELUCCHI: Okay. So during the recess did you have an opportunity to review these -- these dozen or so reports that have been marked?

GERAGOS: Yes, I have. I confirmed with –

DELUCCHI: Okay.

GERAGOS: -- The commenter that I have all nine reports.

DELUCCHI: You're going to have to do -- want to take a moment. I want the clerk to staple these together.

DISTASO: Sure.

DELUCCHI: Thank you. All right. The exhibits have all been stapled together, so we have A, 5 A through J, I believe.

GERAGOS: Judge, I assume that they all will remain under seal under the previous sealing order.

DELUCCHI: Right.

DISTASO: I think, your Honor, we marked one as People's 6.

DELUCCHI: Wait a minute. I thought we were going to mark them 5 A through J. Let me see, we have 5 A, 5 B, 5 C, 5 D, 5 E, F, G, H and one marked 6. Okay. So we'll have A through H, and 6 will be another report.

DISTASO: And the only reason for the difference, your Honor, is that the 5 series are all wiretap number two. The 6 is wiretap number three.

JACOBSON: I believe the –

DELUCCHI: 6 is –

JACOBSON: -- if I counted that correctly, he said A through H. That would be eight. You should have nine.

GERAGOS: I thought we said J.

DELUCCHI: One, two, three, four, five, six, seven, eight. Only have eight.

DISTASO: Should be nine.

DELUCCHI: Maybe 6 is number nine.

JACOBSON: He should have a total of 10 between –

DISTASO: Can I see those, your Honor?

DELUCCHI: Yes.

JACOBSON: Number two and number three, ought to be ten total.

DISTASO: We're missing number five, your Honor. So let me get a copy of this one.

DELUCCHI: Just for the record, he's addressed these -- these reports remain under seal. After they've been used for cross-examination, they've been subject to direct and cross-examination, they, if so inclined, they'll go into the subject matter of the reports.

JACOBSON: Here it is.

DISTASO: Okay.

DELUCCHI: So would that be number I?

DISTASO: It will be.

DELUCCHI: Wiretap number two?

DISTASO: Yes.

DELUCCHI: Okay. That's 5 I. Mr. Geragos, did you see 5 I?

DISTASO: Report number 5.

GERAGOS: Same one that I showed you?

JACOBSON: (Nods head)

GERAGOS: Yes. I think this is it. Clerk: Okay.

DISTASO: Yeah. That's it.

DELUCCHI: See, I gave you my numbers.

DISTASO: And I'll put them in order for you, Judge.

DELUCCHI: And here's 6.

DISTASO: Okay. Just for the record, Investigator Jacobson, these, these reports, wiretap reports, just flip through them real quick, People's 5 A and through the rest of the series, I, were those the wiretaps you provided to Judge Ladine for wiretap number two?

JACOBSON: Yes.

DISTASO: Okay. And then take a look at People's 6. Is that the report that was provided to Judge Ladine for wiretap number three?

JACOBSON: Yes, sir.

DELUCCHI: Okay.

DISTASO: Now, after, which, what wiretap report number was it where Judge Ladine gave you more conservative instructions regarding monitoring of the privileged calls?

JACOBSON: Judge Ladine asked -- that was during the presentation of report number two. The 72 hour report number two. That was –

GERAGOS: Which has been marked as –

JACOBSON: B, I believe it is. 5 B.

GERAGOS: 5 B.

DELUCCHI: Is that correct?

JACOBSON: That is correct, your Honor.

DELUCCHI: No, 5 A. Wiretap number two.

JACOBSON: That's report number one, your Honor.

DELUCCHI: Okay.

JACOBSON: There's two of them. Right there. That's the one. 5 B.

DELUCCHI: 5 B.

JACOBSON: He asked that 5 B explain more in detail, and that's when he gave the further instruction on how to minimize any -- any future calls between Mr. Peterson and Mr. McAllister.

DISTASO: Okay. And those -- if I already asked you; but you passed those instructions onto the wire monitors?

JACOBSON: I did.

DISTASO: To your knowledge were those instructions carried out?

JACOBSON: They were carried out, yes, they were.

DISTASO: Are you familiar with the intercepted calls between defense attorney Kirk McAllister and the defendant?

JACOBSON: I am.

DISTASO: And when I say intercepted calls, how many calls were intercepted?

JACOBSON: There were about 69 calls intercepted between Mr.

Peterson and Mr. McAllister.

DISTASO: And when you use the term "intercepted," does that mean this 69 calls came into the wire room and you listened -- or you or the monitors listened to all those calls in their entirety?

JACOBSON: No.

DISTASO: Was there any -- any monitoring of any of the calls?

JACOBSON: Yes.

DISTASO: And how many of the calls the attorney -- calls between Kirk McAllister and the defendant were actually monitored or listened to?

JACOBSON: A majority of those calls were monitored, and then they were minimized immediately.

DISTASO: Okay. Explain that for the -- for the judge.

JACOBSON: Basically the call either came in or there was an outgoing call. Once the monitor determined that it was Mr. Peterson conversing with Mr. McAllister, the call was then minimized. So technically the call was monitored, then minimized.

DISTASO: So how many of the calls -- how many of the calls between the defendant and his attorney were listened to in their entirety?

JACOBSON: There were no calls between Mr. Peterson and Mr. McAllister that were listened to in their entirety, where the conversation was listened to in its entirety without any minimization.

DISTASO: Was there a monitor of a call, of a McAllister and the defendant call by Agent Steve Hoek on January 14th, 2000 and 3?

JACOBSON: Yes, there was.

DISTASO: And was this one of the two calls that was monitored during the spot-checking time?

JACOBSON: Yes.

DISTASO: And was there only -- amongst all the calls that calm in, was there only these two calls that were spot checked between the defendant and Mr. McAllister?

JACOBSON: Yes, sir.

DISTASO: How long total was that call? What time did it start, what time did it stop?

JACOBSON: I made some copies of the transcripts, which the defense has but you don't have. If it would be helpful to explain this for the court as breaking it down --

DISTASO: Well, yeah, if --

JACOBSON: -- when it was minimized, when it was on, when it was off.

GERAGOS: I don't believe that should be done here. I believe that should be done in camera.

DELUCCHI: Okay, we'll do it in camera.

DISTASO: If I can just continue a little bit more, your Honor, just for the timing. That's all I'm trying to get here.

DELUCCHI: Okay.

DISTASO: Do you have the timing there, Investigator?

JACOBSON: I do.

DISTASO: Okay. When did the calls start?

JACOBSON: The first call that you talked about with Agent Steve Hoek, the call was on January 14, 2003. And it began at 16:24:41 with audio.

DISTASO: And when did the call end? When was it completely finished?

JACOBSON: It ended four minutes and 28 seconds later.

DISTASO: And how much of that four minutes and 28 seconds was actually monitored or listened to by Agent Steve Hoek?

GERAGOS: May I approach? It appears he's looking at something.

JACOBSON: It would be 85 seconds.

DELUCCHI: You want to approach the witness, you mean?

GERAGOS: Yeah.

DELUCCHI: Yeah, go ahead.

DISTASO: And of those 85 seconds that were actually listened to, can you give us the breakdown of how much was listened to initially versus how much -- and then minimized and then listened to? Can you give me that breakdown?

JACOBSON: I can.

DISTASO: Go ahead.

JACOBSON: The first initial portion of the conversation Agent Hoek was able to listen to 44 seconds of the conversation, before he minimized for a period of 31 seconds. He then went back on the line and listened for 41 seconds, and then he was off for the remainder of the call, which was over two minutes.

DISTASO: Okay. Was there also a -- actually, I'll wait for counsel to finish.

GERAGOS: You can ask. I'll just step over.

DISTASO: Was there also on -- another monitoring of a call between the defendant and counsel by Agent Jesse Tovar on January 15?

JACOBSON: Yes, sir, there was.

DISTASO: And again, was this call one of the two calls that was listened to during the spot-checking time?

JACOBSON: Yes, sir, it was.

DISTASO: And how long total was that call? The total duration of the call?

JACOBSON: The total duration of the call was two minutes and 25 seconds.

DISTASO: And that was January 15th. At what time did it start?

JACOBSON: At 11:20:37 hours.

DISTASO: And how long total was that call monitored, the total time that Agent Tovar was listening to that call?

JACOBSON: 18 seconds.

DISTASO: And was it 18 seconds straight? Or was there some breakdown?

JACOBSON: Six second intervals, three times.

DISTASO: Okay. And can you give me the breakdown then?

JACOBSON: I can. He was on listening for six seconds, he was off the line minimized for 36 seconds, he was back on for another six seconds, then he went back off for a minute and seven, or 67 seconds, then he went back on for six seconds. And then the remainder of the call was an additional 24 seconds, which he was off.

DISTASO: Okay. Are these the only two calls that were actually monitored in the sense that there was blocks of time where the agents were listening to conversation between the defendant and Mr. McAllister?

JACOBSON: Yes.

DISTASO: Now, have you spoken to either Mr. Harris or myself regarding the contents of the calls, of those small portions of calls that were listened to?

JACOBSON: I've spoken to you both about not telling you the content, that I can't tell you the content of the calls --

DISTASO: Okay. And you --

JACOBSON: -- as which was directed --

DISTASO: And you haven't given that information to us?

JACOBSON: No, sir, I have not.

DISTASO: Now, during the content of -- of wiretap number two, did anyone inform you that private investigator -- excuse me. Private investigator Gary Ermoian was employed by Mr. McAllister?

JACOBSON: No.

DISTASO: Did you eventually figure it out based on some of the conversations between the defendant and members of his family?

JACOBSON: And other people, yes.

DISTASO: Okay. Were any calls between the defendant and Mr. Ermoian intercepted?

JACOBSON: Yes.

DISTASO: How many calls were intercepted between those parties?

JACOBSON: There were four intercepted calls, I believe, between Mr.

Peterson and Mr. Ermoian.

DISTASO: And -- and, again, when I say "intercepted," does that mean that all four of those calls were listened to or taken in and listened to in their entirety by the monitors?

JACOBSON: No.

DISTASO: How many of those calls between Mr. Ermoian and the defendant were actually monitored or listened to?

JACOBSON: One call.

DISTASO: And how long was that call?

JACOBSON: If you'll give me a second.

DISTASO: That's fine.

JACOBSON: The duration of the call was one minute and 28 seconds.

DISTASO: And who -- who was the monitoring agent of that call?

JACOBSON: Myself and Detective Dale Lingerfelt.

DISTASO: Now, did I direct you to document all of these calls, just a list of them and the times in a -- some kind of supplemental report?

JACOBSON: Yes, you did.

DISTASO: And did you do that?

JACOBSON: I did.

DISTASO: Other than those three calls that we've talked about today, do you believe proper minimization procedures were followed regarding the remaining attorney/client calls in wiretap numbers two and three?

JACOBSON: Yes.

GERAGOS: Objection. Calls for speculation. Irrelevant as to --

DELUCCHI: Sustained. The court will sustain that.

DISTASO: Did -- well, let me ask you this then. Are you familiar with all the calls in both wiretaps?

JACOBSON: I am.

DISTASO: And do you believe that the instructions you gave the monitors were carried out in relation to all of the remaining calls?

GERAGOS: Objection. Calls for speculation. He doesn't know what was carried out.

DELUCCHI: I don't think he does.

DISTASO: Well, I guess, your Honor, if I could just be heard briefly.

DELUCCHI: The question is did you -- did you -- did you give the instructions to those people that you were working with about what they were supposed to do with respect to the monitoring of these calls?

JACOBSON: Yes, sir.

DELUCCHI: Okay.

DISTASO: Okay. Your Honor, regarding this particular issue, I don't have any further questions.

DELUCCHI: Let me ask Mr. Geragos: Do you want to go into chambers now and listen to these before you start your cross-examination?

GERAGOS: I think it would make more sense; for your Honor, also --

DELUCCHI: Yeah.

GERAGOS: -- to do that.

DELUCCHI: Okay. I was going to leave that up to you. So, I'll tell you what. Why don't we go ahead and we'll set up what we need in there. Let's see. Investigator Jacobson, what do you need now for these wiretaps? Do you have the equipment?

JACOBSON: I was hoping to check your system back there, your Honor, to see if you had a better system than what I brought.

DELUCCHI: I'm going to let you go with the bailiff to see what we've got back there, but you have some way of playing them for counsel?

JACOBSON: I do.

GERAGOS: I want to make sure, also, if I could ask a question here.

DELUCCHI: Yeah, go ahead.

GERAGOS: At least in the questions that Mr. Distaso was asking you, you referred to two calls. Your 72 hour report refers to seven calls. You have all seven of those calls with you, correct?

JACOBSON: Yes.

GERAGOS: And you have all of the remainder of the calls with you, correct?

JACOBSON: Yes, I do.

GERAGOS: Okay. So that's what I want played.

DELUCCHI: Okay. All right. Why don't we take a recess, then, and then as soon as they get everything put together, then we'll have an in camera with counsel, your client present, Mr. Harris will be present, and hear the tapes then.

GERAGOS: Okay.

DELUCCHI: I'll have the witness play the tapes for us so we can hear them.

GERAGOS: Thanks.

DELUCCHI: Any idea how long this is going to take? Ballpark.

JACOBSON: It all depends on how many calls you want to listen to, your Honor. The defense counsel said.

DELUCCHI: Want to hear all of them.

GERAGOS: I think the judge and I need to hear all of them.

DELUCCHI: Ballpark. Half hour?

JACOBSON: Probably say a little longer than that, your Honor.

DELUCCHI: Okay. Let's get started. All right. We'll take a recess, then we'll -- when you're ready, we'll go ahead and adjourn and go into the jury assembly room, because there's enough not room in chambers.

HARRIS: Your Honor, just for the record, when you say said Mr. Harris will be going back in chambers --

DELUCCHI: Mr. Harris, the assistant to the -- co-counsel to Mr. Geragos, not the district attorney.

HARRIS: Thank you. And I'm going to give these back to you, and they will remain sealed, Madam Clerk.

<In-chambers meeting, sealed>