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Opening statement by defendant_ USA v Thomas Butler

VIEWS: 2 PAGES: 36

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 1                                    UNITED  STATES   DISTRICT                 COURT
                                       NORTHERN   DISTRICT   OF                TEXAS
 2                                                LUBBOCK         DIVISION

 3   UNITED      STATES OF AMERICA_                                     NO    5:03-CR-037-C
                     PLAINTIFF,
 4
     VS                                                                 LUBBOCK,     TEXAS
 5
     THOMAS      CAMPBELL   BUTLER,               M D      ,
 6                   DEFENDANT,                                         NOVEMBER     3,   2003

 7

 8
              .......      r .............................................

 9
                                    OPENING         STATEMENT           BY   DEFENDANT
i0                                  FROM TRANSCRIPT    OF TRIAL                                                     I
                            BEFORE  THE HONORABLE   SAN R_ CUMMINGS,
Ii                         UNITED  STATES  DISTRICT  JUDGEj   AND A JURY

12            .....................................................

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     OFFICIAL           COURT   REPORTER:    MECHELLE  DANIEL,                     1205   TEXAS    AVENUE,
22   LUBBOCK,           TEXAS   79401;    (806) 744-7667

23   PROCEEDINGS           RECORDED          BY   MEC_L_/_ICAL STENOGRAPHY,                  TRA/_SCRIPT
     PRODUCED    BY        COMPUTER
24

25
                                                                                                                                        3O




 I                        MR     HOLDER:            May        it please             the     court,          counsel,             ladies


 2   and     gentlemen           of     the    jury             The       reason        that       we       give       opening

 3   statements            is    to     lay    out       for       you     what       we     think          the     evidence             is


 4   going     to    show        and     try       to    give        you     an      outline           in    advance,

 5   because        witnesses            are       not     called          in     the      direction              that       the


 6   evidence        logically            follows              toward        the       final       end,       which          will       be


 7   your     determination               of       guilt        or    innocence                  They        call       witnesses

 8   first_         As     we    said     on       voir       dire,        just       because           they       put       a

 9   witness        on     the    stand        doesn't             necessarily              mean        that       what          that

I0   witness        says        will    help        them_            We    will       start        making          our       case

Ii   from     the    first        witness           forward                Okay,

12                       Obviously            we    don't          agree        with       the     representations

13   that     the    government               has       told       you     already.              I will           spend          about

14   15 or     20 minutes              laying           out     the       time       line     leading             up    to

15   January        14th;        then     cocounsel,                 Mr     Meadows,             will        analyze             the

16   cases     for       you,     the     charges,             and        the     defenses.

17                       Let     me    say     that,          at     some       point,        we    will          be    calling

18   character           witnesses_                You    will        have        a chance--                 We    are       allowed


19   three     character              witnesses           during           the       trial,        and       they       will       tell


20   you    something            about        Dro       Butler,           the    man,       where        he       was    born,          who

21   his    parents        are.         He's        married           for       23 years           to Elisabeth_                       That

22   J D. means           she's        a lawyer           in Sweden                   They       met        there       in       1975

23   when    he     was    attending               an    institute              on    research              in Stockholm,

24   and    they     got        married        in       1980          They       have       four        children             ranging

25   in age       from     twenty-two               down       to five                He's       a medical              doctor
                                                                                                                                  31




 1   He     doesn't        just     do    research.                 His    research            involves              treating

 2   patients_         healing           patients_              So     while       he's        doing       his        research,

 3   he'e     healing         patients_

 4                     He     had    military             service_               I mention           this,       because           his


 5   service        in Vietnam            is       where       he got          interested            in the          plague.

 6   That's     where        he     began          to do       his     research           in    the       plague_            He    was

 7   assigned         to    a naval           medical          research           unit     in Da Nang,                 and

 8   there,     he     began        to    study       the       plague.            His     duties          at

 9   universities            back        in    the    states,             at     Johns     Hopkins             and     at Case

I0   Western,         called        for       him    to     spend         two     or    three        months          a year        in

ii   places     that        have     infectious                diseases                Infectious              diseases

12   occur     in Third           World        countries,             and        so he     would          go    to Vietnam,

13   up    until      '75,       repeatedly           to       study       the     plague           and    bring        back

14   samples        for     his     students          to       study       at Johns            Hopkins          and     Case

15   Western           He's       been        a professor             at Texas           Tech        for       the     last

16   15    years           They     told       you    he's          a world-renowned                  researcher              on

17   plague           He    wrote        the       book    on plague°                  That     book       is called--

18   it's     this     Standard           Text,       Plague          and       Other     Yersinia              Infections

19                     Now,       about        1980,       Dr.       Butler        turned           his    attention              to


20   other     areas        of    rssearch_               He    had       other        things        that       attracted

21   him,     and    plague         was       not    that       big       a problem            in    the       countries

22   that     the    U..S. had           interests             in         They     were       mostly           in Vietnam,

23   Cambodia,         that       sort        of    thing..          In 1998,           though,           and    1999,        he

24   got    interested            again        in plague,             and       the     reason        he       got

25   interested            was    because           the    United          States        Army        invited          him     to
                                                                                                                                         32




     1   come       to     a place           that       they    referred             to on           their        opening


 2       statement,              USAMRIID,             United         States         Army       Research            Institute            for

 3       Infectious              Diseases.              US_RIID            is       the     place        that       has     the     job       of

 4       protecting              the    soldier           from        bioterrorist                  weapons            Okay?

 5                             And     so     they       invited          him       up    to    talk        to     them     and     to

 6       make       a video,           a training              video_           He       got    up     there        and     made       the

 7       training          video,           and     they       followed             up    a couple           of months            later

 8       with       a letter           from       a Colonel            Cieslak                 And     he    said,        "Tom,        we

 9       need       your       help           What      we     want       you       to do       is collaborate                with          us

i0       on     clinical             trials       on    the     plague          "

II                             The     Army       had     a problem                  The       Army     is not         allowed--or

12       generally             not     allowed          to do        research             on    human        beings.          They

13       used       to,    but        they     kind      of     messed          it up.            So    they        are     allowed          to

14       do research              on    animals,             and     they       wanted          to     collaborate            with          Tom

15       to do research                 on human             beings        into          plague

16                             Why     do    we want           to    look       at plague?                  We    only    have         had,

17       as    it    turns       out,        you       will     hear       evidence,              about          54 cases         that       we

18       have       got    records           of plague              treatment             in    this        country         since        the

19       1950s            Those        54 cases          were        treated             the    best        way    the    doctors

20       knew       how    at the           time.        They        didn't          get       the     treatment          that

21       allowed          us    to decide              what     works       against             plague,           so   we don't

22       know       what       medicines            to use          and    we don't             have        an    approved

23       medicine          for       plague_            Now,        the    one       that       was     used       back     during

24       the    Vietnam          War,        streptomycin,                 is not          made        anymore

25                             And     so they          did     a little            test       on      bioterrorism               in
                                                                                                                                  33




 1   Denver,         and    they       shut       it do_-n after                 four     days--it          was     supposed

 2   to     run     ten    days--because                plague         was    just       getting           out     of

 3   control_             The    pneumonie           plague          that     Mr        Webster        mentioned              is a

 4   dangerous            weapon_           The     Russians           think       it's       better        than        anthrax

 5   because         it's       a gift       that       keeps        on giving_               It goes        and        spreads

 6   through        the     lungs_           So     it can       be     a terrible              weapon       to     try       to

 7   defend        against,           and    the     Army       wanted        Tom       Butler's           help_

 8                        And    it    turned        out       that     there       are       several        agencies

 9   involved         in bioterrorism                   defense,           and     you    will       hear        about        them.

i0   The     Food     and       Drug     Administration,                   they     are       the    ones        that


II   approve        the     drugs,          and     they      have      a section             that's        called

12   Bioterrorism               Defense        Section,          and       you     will       hear     from       some        of

13   those        people        during       this       trial          _d         they    provide           the    dollars.

14   They     have        doctors,          but     those       doctors           don't       get    out     in the

15   field..        Those        doctors          sit    in    Washington               and    push       paper         and


16   study        things

17                        There's        the      Centers        For       Disease        Control_               Now,     they

18   have     scientists              that     do    get      out     in     the    field,          but     they    have


19   problems,            too,    of     funding,          and      they      don't       have       the     money        the

20   FDA    has       This        is a very             important            agency,          because        they        are       the

21   ones--you        heard         him      mention          that     he     went--came             in without               a


22   permit        from     the       Centers        For      Disease         Control,          from       CDC           Okay_

23   They     are    an     important             agency       because           they     more       or     less    keep           the

24   inventory        of where              things       are     and       they     keep--they             have     to        have

25   samples,        like        a fingerprint                lab,     so     that       they       will     know,        if
                                                                                                                                            34




 1   there's            an     attack,          where        those        things          came        from             Okay_


 2                           And     then       the     U S_       Army.            Their       primary               goal     is to


 3   protect            the     soldier_              And        Tom    got     involved              with        all    these

 4   agencies            beginning              in    1999_            Colonel           Seaslack              wrote     him        a

 5   lette_              Tom       thought           about        it.      He       talked          on     the        telepbone             with

 6   a    doc tot        in CDC           named       David        Dermis.               Dr     Dennis           was     the        head         of

 7   the     _lague           Section           at CDC.            He    was        the       boss        of    Kenneth        Gage,

 8   who     he        helped       bring        here_            Colonel           Seaslack              is down        in    Honduras


 9   righ_        now,        but    he     will        be here          in     a couple             of        weeks     to    testify

I0   to yo_l.            He     asked       Tom       to help           him_

II                        Tom       decided           that        he    wanted        to do          it          In     May    of       2000,

12   he    began         to write           to       the    Centers           For     Disease              Control           and     to      the


13   Army     and        said,       I want           to    take        a sabbatical_                      That's        a--in          a

14   university               professor's              life,           that's       when        they           take     a year          off

15   from     teaching              in     order       to do           research           totally              free     of    any

16   teaching            jobs.           It's     something              that       you       can     apply           for,     but          it

17   has     to    be     approved           by      the     board        of     regents                  So he        applied              for

18   a    sabbatical               so he     could          research           plague.

19                        And       Texas        Tech--           At     the     same         time,        he     applied           to

20   have     his        lab    registered                 for    plague        research,                 and     so the

21   enviTonment--the                     IBC,       biological            hazards              committee,              biohazards

22   committee,               approved          his        laboratory           for       handling               yersinia


23   pestiS.            That        was    in     October          2000             He    was        on    the        road     getting

24   ready        to    help        out    on     the       research.

25                       January           2001,           the    board        of    regents              approved            his
                                                                                                                                     35




 1   sabbatical.                He's       free    to go        now,       and    he     does             He    sets       off        to

 2   Tanzania,         Africa,             to set        up--to        learn      the        groundwork               so he         can

 3   set     up    to do        the     research          there       on plague              that    needs            to be

 4   done.         They     just--_t's             just     chaos          if    you     don't       have           an approved

 5   drug     to     treat--to             fight    something              with       if you        do     get       attacked

 6                     He       comes       back    home        and     submits          a    research              plan       on

 7   plague           He    has       to    convince        the       Tanzanians              that       he     can       do    this

 8   without        harm        to    them         The     idea       of    testing           patients              with       two

 9   different         drugs          is something              that       they       have     to get           over_           They

10   have     to get        over       the     idea       that     you      take       gentamicin               and

II   doxycycline            and       you    use    it     and     see--you            try     to cure              both

12   patients,         but       you're       seeing        which          one    works        best.

13                     But       they       approved        his       plan       to    test     the        plague,             and

14   they     approved           that       in September              2001            9-11,     2001,           the       world

15   changed.          Two       weeks       later,        on     9-25,         the    FDA     writes           Tom       an

16   e-mail.         And        there       are    e-mails         throughout                this    thing.               There

17   are    many     hundreds              of e-mail_           you    will       get        to see        that       back          up

18   what    we're         saying       here_           Janice        Soreth          sends     him        an e-mail                and

19   says,     Tom,        we    have       got    to    talk      to you         about        research              on    the

20   plague_         Everything              has    changed           since       9-11

21                    Tom        takes       off    shortly           after       that        to go        to Africa                and

22   train     his    medical           team.           There     are      African           doctorsTanzania


23   doctors,        Tanzanian              nurses;        they       speak       Swahili,           they           have

24   distrust        of     hospitals,             all     of these          problems,              and        he    has       got       to

25   get    where     he        can   get     reliable           medical          information,                  and       so he
                                                                                                                                         36




     1    spends        time        in Tanzania              training            the     medical           team       up,    because

 2       the     Tanzanian               Government           says,        you've           got        to use     some       Tanzanian

 3       doctors            here_         He    doesn't        have         a license              to practice              medicine

 4       in     Tanzania_


 5                            Meanwhile_              he's     talking            to CDC,              Centers       For     Disease


 6       Control,            and    they        agree        that        if he       gets        those     plague           samples           in

 7       Tanzania,            they        will       test     them        for     him            The     U_S      Government,                 in


 8       an    internal            e-mail           that     you     will        see    involving              many     of    the

 9       people        that        will        be    witnesses           here,         says,        Tom    is a unique

i0       asset          We     have        got       to     take     advantage              of    him          Tom    is

ii       spring-loaded               in        the    go     position                It's        going     to     take       us    a

12       couple        of years            to       get     there_         Let's        use       him_

13                           He     goes        to Washington,                  D_C     , in February                 to     give

14       talks        to US          Army           and    Food      and    Drug        Administration,                      They       hire

15       him     as    a consultant                  for    plague              To     encourage           him--            See,       Tom,

16       when     he    went        to Tanzania,               he     brought           his       own     medicine_               He

17       didn't        have        any    drug        company         supporting                 him    there,        so he

18       breught-~he               paid       for     and    brought         his        own       medicine,           paid        for    and

19       hired        the    people           in Africa,              So    the        Food       and     Drug


20       Administration                  says,        give     us    your        reports_               Tell     us    what        you're

21       doing        and    we'll        pay        you    $4,000         a report                And     so    he did,

22                           Now,        in     February,           the plague              breaks         out       in Tanzania

23       around        a village              called        Lushoto,         and        Tom       heads     back            That's

24       where        they    normally              have     the     plague            there_           He goes        back        to

25       collect        the plague               samples           and     the       data     and       he brings            them       back
                                                                                                                                              37




     1    into     this       country_               Everybody               knew     he was        going               Everybody

 2       knew     what        he    was       going         to do        there--that's                  in    the       United          States

     3   Government,               those        agencies           that        deal       with      b_oterrorismo


 4                            So he        comes          back,        gets        back     in April,              he    makes

 5       arrangement               with       the     U.S,        Government,                Who     does          he    make

 6       arrangement               with?            The     Center           For    Disease         Control_               Who       did


 7       they     tell       you        had     to    give        permission              for     him        to move          it     from

 8       Lubbock        to     Fort       Collins?                The    Centers            For    Disease              Control,               You


 9       will     see     an       e-mail        where        he       tells        them,        "I'm    going           to    bring           it

I0       by     car       Do       you    think           that's        best?"            And     they        say,       "That's

Ii       great,         You        do    it.         Bring        it    on."

12                           That's           the     Centers           For        Disease        Control.              And        he    does


13       what     they       tell        him     to do,            He    transports               the    samples              to    the

14       Centers        For    Disease               Control             They        test       those        things                They       say

15       that     they       test        them        at    the     request           of    the     Tanzanian              Government_

16       The     Ministry          of     Health           to the        Tanzanian              Government              sends           the


17       Centers        For    Disease              Control            a letter           requesting           that           they       test

18       and     confirm       that           these        are     yersinia           pestis        plague

19                         Okay               The    U_S.        Government               agencies           invite           him       to

20       come     to Washington.                     The     Army        invites           him     to bring             them        a set

21       of    these     bacteria              strain,           USAMRIID,                Meanwhile,           in       early

22       September,           he    sends           the     plague           samples        back,            You     will          hear

23       from     David       Dennis,           the        head        of the        section        at the           CDC       before          he


24       retired,        that       that        is        absolutely           his        ethical        obligation,                    that

25       those     plague          bacteria           belong            to    the Government                  of     Tanzania,                and
                                                                                                                                             38




 1   he     had      to     do    that       if you        are        going          to continue                 to      do research

 2   with       them_            And     we have          experts           that         will           say    that's          not

 3   exporting              that's          legal


 4                         Okay.            So they        invite          him        to      come        up    and        talk       to

 5   them,        and      he asks           them     three           different               ways,           "Bow       do you          want

 6   me     to bring             them?        Do you           want       me    to mail,                 do you          want       me     to

 7   send       them       Fed       Ex,     or do        you       want       me    to       bring           them       on    an

 8   airplane?"                  The    United        States           Army         says,          "Bring            them      on an

 9   airplane."

I0                         So he        does        what       the    Army          tells          him        to do,          brings        them

II   on    an     airplane,             gives        them       to     the      Army,          lectures               to      the     FDA.

12   Meanwhile             the       FDA     is     saying,          we've          got       to    get        him       on

13   full-time                  You     will        see    all       sorts          of     e-mails,             how        they       are

14   trying          to get          a way        to hire           Tom    to work             full_time                 on plague.

15   And     just         about        the    10th        of    January,             they          come        up    with       a final

16   deal       for       Tom     to work           fuil-time             for       them       and        to arrange                him     to


17   be    a fellow             to     do    research           on    the       plague.                 They        need       60 more

18   samples          to be          able     to approve              gentamicin                   as     the       drug       for

19   plague,          and       they        want    him        to    go    and       continue                 testing.

20                         Up until           January           the       llth,          up    until           those          vials       went

21   missing,             Tom    was        doing     everything                for       us            He     was       working          for

22   the    United          States           of America              to    defend             us    against              the    threat           of

23   plague          as    a bioterrorism                  weapon,             to help             us    get        an     approved

24   drug       so    that       if we        get     attacked,                we    could          defend           ourselves              and

25   we    wouldn't             suffer        the     losses,             the       horrible             losses           we    might
                                                                                                                                   39




 1   otherwise            Ioseo           He     did     what       he     thought          he    was     supposed        to do,

 2   and     the     very       people           that       were      authorized             to give        permission              are

 3   the     ones        that    were          giving        him      informal          permission              and    telling

 4   him,     bring           it on,            And      you      will      see     e-mails,              They    left

 5   footprints               that     you      will        get     to     follow       showing           that    they     are

 6   the    ones         that    asked          for      him      to do        what     he       did_


 7                        Mr     Meadows           will        give       you     the      rest,

 8                        MR,    MEADOWS:               Mr_       Holder         already          talked        to you     about

 9   the    fact      that       Tom        Butler       was       working          for      the      united      states

i0   Government,                Now,        the    government              may     try       to deny        that       now.        The

II   problem         is,       you're        going       to       see     in evidence              in    this     case

12   e-mails--they               can't          deny     them--off              their        computers           that     say

13   that     he    was        trying        to help           the       country,          protect        the     citizens

14   against        possible              bioterrorist                attacks,             Since        1999,     he    Was

15   doing     this

16                       Butler           did     what       they       wanted        him        to do    from        '99 until

17   January        14th,        2003,          when     he       made     the     mistake            of embarrassing

18   the    FBI_         When        he    embarrassed               the    FBI       on     that       date,     he    signed

19   his    death        warrant,            because           they       were     going         to     find     something          to

20   charge        him     witb_           Whatever            it was,          whatever           it    took     on that

21   date     when       they        were       embarrassed--

22                       MR      BAKER:            Your        Honor,       this        is beyond          the     scope        and

23   purpose        of     opening          statement,                  It's     argumentive

24                       THE     COURT:            Sustained

25                       MR      MEADOWS:              On      that      date,        when       60     agents     came       to
                                                                                                                                         4O




 1   Lubbock,            Texas,        and       CNN     was       reporting               what      was       happening,            and

 2   then        they     found        out       that        the     vials       were          simply          missing,            that

 3   was     the     date       that     started              the--            How     do we         know        that      Butler         was


 4   working         for       the    government?                    Well,       guess          what?            They      paid      him_

 5   TherFDA         paid       him    money                And      you       know        something?                 They     talked


 6   to     you     about       the     Institutional                    Review           Board,           the      IRB.       They

 7   said,        oh,     he had       problems              with        the     IRB

 8                        Well,       so did           the        FDA_         The    FDA--and              there       will       be

 9   e-mails         and       there    will           be    testimony               to     tell      you,          they     wanted           to

I0   test     this       particular              drug              They        wanted          to    make        sure      what      its

ii   side     effects           were     so       that       if     they        had       to    issue          it in       large

12   quantities            here       in America,                  it would           be       okay.           We     could       test

13   and     we    could        issue        it without              liability_

14                       9md     they        said--in              their        e-mails             that       you're        going        to

15   see     in    this     trial,           they       said,        we've           got       a problem                You       know,

16   we're        a public           agency,           and     our       IRB     won't          let       us     do    this.        But

17   we    can     get     Mr     Butler           to do           it.     We        can       get    Dr_        Butler        to go       do

18   it       He'll        go do       it     for       the        country_

19                       And    yes,        he    did.             A/%d they          paid          him    $24,000,           and       they

20   issued        him     a purchase             order,            and    they           said,       we       don't       want     to

21   know     the       names     of    anybody              in     your       study_               We don't           want       to know

22   some     of    these       things           about         it,       but    by     the       way,          before        you    go

23   over     there,        here's          how     you       ought        to        structure             your        study       to

24   make     sure       that     it gets           us       the     results           we      need_

25                       That's        what       they        told        him,        and      you're           going        to    see     it
                                                                                                                                    41




 1   in     e-mails,           things        that        people          can't      change          just     because           the


 2   spotlight            is on        them          You're           going        to    see     that       they       paid       him

 3   $24,000,            and    then        they        issued        another           purchase          order        to     him    in

 4   November        for        another           $24,000               And     then      on January              the       10th,


 5   oh,     the    idea        that        Butler--that                Mr_    Webster           told      you        that     Butler

 6   was     in    trouble           on     that     date,         no         On    January          the     10th,          the     FDA


 7   was    prepared            to    include            Dr_     Butler         in a million-dollar                         study.

 8   He    was     going        to be        a    consultant             to     that      study_           He     wouldn't

 9   need     IRB approval                  to do       that,       and       they       had    worked           it    out     so

I0   that     they       could        find        that       this       drug       was    safe       for Americans

II                       Some        of     the    charges.              He    took       this       plague           from

12   Lubbock,        Texas,           cultures            of     it, up        to Fort          Collins           in his          car_

13   Sounds        like        a crime?            It didn't             to Dr_          David       Dennis,           because           he


14   said,        when    he     was        told    he       was    coming          up--this             is the        guy     that's

15   in charge           of     it        Okay?           This      guy       says       to    Dr        Butler        in    an

16   e-mail--we           have        it;        you're        going      to       see    it--"This              is great,

17   Congratulations                  again             And     I like         your       plan       for    testing                 The

18   hand-carriage"--this                         is what          the    government                is    telling

19   Dr.    Butler°             "The      hand-carriage                  of    specimens             to    FC,"        which        is

20   Fort     Collins,           "bespeaks              of     your      real       field       experiences_"

21                       That        will     be    Defendant's                Exhibit          135         Now        he's


22   charged        with       a crime            for     doing       that.

23                       MR.     BAICER:           Objection,             Your       Honor.              There        is no       count

24   relating        to       that          That's           a misstatement

25                       THE    COURT:             Sustained.
                                                                                                                                                 42




 1                        MR.       MEADOWS:                Every              time--         And        you       heard        something

 2   else           You       heard        he    transported                      these       vials           and    he     did       this          and

 3   he     did     that,           There        will           be        no    evidence           in this           trial           that


 4   those        vials        did       not     arrive              safely.                In every           case       when        the

 5   vials        were        transported                  to    a        federal           agency,        they          arrived

 6   safely,            When       they         were        sent           back       to     Tanzania,              they        arrived

 7   safely             You're           going        to see,                  with     respect           to       these        smuggling


 8   charges--               Oh,     and        by    the        way,           while        Dr_    David           Dennis           works          for

 9   the     CDC,       you       will         find        that       the        CDC       and     the     FDA       and        the

I0   U_S,     Army        are      all,         in November                     and    December,               trying           to    find          e

II   way     to    work        together,               Kind           of unusual                 for     some        federal

12   agencies_               They       say      that           in    their           e-mails           that        it    is unusual

13   for     them       to    work        together,                   But        they       are     coming           to work

14   together           because           of Dr_           Butlerr               to    fund        his    research               and       to

15   find     a way          to    do     this             _d         he        transports              these        vials           to    them

16   safely        so     that       they        can       find           antibiotics               that       we        can    use        in

17   case     of    a terrorist                  attack_


18                       These          smuggling                charges              and     customs           charges              were       done

19   at    the     request           of    the        United              States        Government°                      Some        of    these


20   agencies           and       some     of        the    political                  aspirants              and        higher-ups                 in

21   those        agencies           are       going        to        say,        oh,       well,        we    dicln't          do        this          or

22   didn't        do    that_


23                       But       you're        going               to    see        the    e-mails           that        took           place

24   before        1-14_           Those        e-mails               tell        the       story,            At    the        end        of    the

25   trial,        they       will        be    sent        back           into        the       jury     room           with        you       in
                                                                                                                                      43




 i   chronological               order,           and    you        can       go    through           and      read    the        story

 2   like     you        would     read       a book,             and        it tells         you       that        they

 3   authorized            Dr.     Butler          to do          these        things                It tells         you        that

 4   David        Dennis        said       it was        okay        to       hand-carry              it up         there          It


 5   says     that        when    he       was     accused          of       going         to Washington,                  D.C_--and

 6   taking        it up        where?           To     some       terrorist?                 NO.        To     the    U_So        Army

 7   and     to    the     FDA.        That's           who       he was           going      up     there          with     it to.

 8   It    says,        hey,     I'm       going        to    bring          it up        there         by    hand_         And       they


 9   say,     okay_

I0                       Lying        to    the       FBI.         We     agree       on one            thing:         That        Tom

Ii   Butler        voluntarily              reported              the missing              or      stolen        vials       to

12   Texas        Tech,       first        on 1-13,           and       then        again       on      1-14.         We    agree          on

13   that_         The     evidence          will        show       you       that        if Butler             did    not        report

14   the    vials,         if    he    didn't           say,       hey,       something              is wrong          here,          I'm

15   missing        these        vials,          I don't           know       where        they         are,     what's          going

16   on--         Mr.    Webster           says       that        shows       that       he     was      trying        to divert

17   attention           to     it because              he    was       so    calm       and       he    didn't        report           it

18   on    i-II          That's        not       true        at    all.        Dr        Butler          was     unsure

19   whether        the       vials        were       missing           or    whether           they         were     stolen.            He

20   couldn't           find     them.           He     didn't          know       what       had       happened           to them

21                       Now,     he       could       have       kept        quiet_            He      didn't        have       to     say


22   anything,           because           there       will       be     testimony,              perhaps             from    the

23   first        witness        on    this       stand,          Dr.        Jones,        who       will      tell        you     that,


24   oh,    no     one    at Tech           knew       about        this_           No     one       knew      about

25   Dr_    Butler        having        these         vials              We    were        all       shocked
                                                                                                                                        44




 I                         Well,       there          was    a     sign       outside            his    lab      that        they're

 2   not     going         to be       shocked           about_              It warns            people       that         he    has     YP

 3   in     his     lab,       and     we're          going        to    show           you    that     sign.          We're        going

 4   to     show     you       where        he     reported             in    an        e-mail       to Dr.         Jones        that        he

 5   had     YP          We're        going       to     show       you       that        in October             of    2002,

 6   Dr.     Jones        even        suggested             that        he    get        licensed          for      YP because               he

 7   had     it_         That's        going          to be        their        first         witness         right         up     here

 8   on     the     stand_           You     are        going       to       get     to hear           it-

 9                        What       happened            then?           Well,          he    goes      and      reports           it,

I0   and     he     says,       "We don't"--"you                        know,        let's       make        sure      that        they

II   are     stolen_            I'm        not    sure       about           this       yet°"          And    so      he goes          in

12   and     he     reports          it to        the       deans,           and    they       say,        "Hey,       we       better


13   report         this       to    the     Lubbock             police        and       then       ultimately              the     FBI_"

14   And     it    does        blow    up,        I     think      bigger           than       anybody           thought.              And

15   that     will       he     the    evidence              about           that


16                       And        it's     going--we're                 going          to    show      that         on    1-14,

17   that     Dr.     Butler          reported              it    about        I:00,          2:00      in    the      afternoon.

18   That     night,          about         12:30,        they       have          been       meeting         with

19   Dr.    Butler,           going         through          his     lab,          seeing        other        things.             The

20   expert        interrogator                  that     they       bring          in       from     Dallas          comes        in and

21   starts        questioning              Dr        Butler,           and        Dr        Butler      says,         they       are

22   missing        or     stolen;           I don't             know     what_           But       they      are      not       where

23   they     are    supposed              to be

24                       And        they    go,       okay,        we're           going       to look_             We're         going

25   to search           all,        we're        going          to check           the       locks,       we're           going       to
                                                                                                                              45




 1   look    at     your     lab,       we're     going          to do        all     this_       And     he     tells

 2   him,    we     can't     find       any     signs        that       there's           a break-in          in       your


 3   lab,    Dr      Butler,        and        we've       talked        to    all     these      people                We

 4   don't    believe         those           things       were     stolen_

 5                    Well,        you     checked?

 6                    Yeah,        we've        checked_

 7                    "Well,        the       only     other        logical          explanation           is       that        I

 8   must    have     destroyed            them      in     an earlier              experiment,"           because

 9   he's    a very        focused         individual             when        he's    doing       research                   The


I0   type    of person            you    want     to have           doing       research.           And        he       says,

II   "I must        have    destroyed            them       accidentally,"                 he    said,     "because--

12   are    you     sure    they        are    not     stolen?"

13                    He    says,        no,     we've       checked                They're       not     stolen.


14                    So    the     only       other        logical           explanati?n          is,     hey,          I must

15   have    mistakenly            destroyed           them

16                    _d     you        know     something?               That's       exactly          what

17   Dr     Butler     wrote,           and    you're        going        to    get    a chance           to    take          this

18   back    into     the    room        with     you      and     read        it,    and       we're     going          to

19   show    it to you         several           times,       I'm     sure,          during       the     trial.              He

20   did    not   write,          "I lied        to the       FBI     "        He    wrote,       "I made           a

21   misjudgment,           and     I am       sorry       about      all       the    confusion           and

22   excitement        I've        caused,           I'm    embarrassed               by    it"

23                    That's        what       he wrote,           and     that's          the    truth             And       it

24   was    after     the    FBI        convinced          him     that        of    the    two    alternatives,


25   it couldn't           have     been       stolen             It had        to have          been    accidentally
                                                                                                                                           46




     1   destroyed            or--            Oh,    and       by        the    way,     this        statement,              oh,     it


     2   didn't         happen          at     2:30       at    night_            No,        the     questioner              said     at

     3   2:30         at night,           Dr.       Butler          is     too    tired         to continue_                   Send       him

 4       home,         let    him       rest_

 5                            The       evidence           is going--                  And     Dr.. Butler,              durin 9 all


 6       this     time,           had     no    lawyer,             by     the    way          He        thought        the     FBI,       like

 7       the     FDA        and     the      CDC     and       the       Army,     were        going        to     stand        by    him

 8       and     they        were       out     there          to    help        him    and        he was        out     there        to

 9       help     them,           and     there       will          be     testimony           about        that_

I0                            And       so he        thought              that    all        this    was        happening,            and

ii       they     sent        him       home        to get          some       rest           But    another            agent,        Miles

12       Burden,            says,       oh,     this       guy       doesn't           need        rest._        He's        not     ready

13       to     say    what        we want          him        to    say yet,           because            we    want        him     to

14       confirm        that           these       vials        are       definitely               destroyed,            because           that

15       will     reassure              everybody,              and        the    FBI    will        have        shut        down     the

16       case.         Let's           send    him       home        with        Ii special              agents--             I'm     sorry,

17       I think        there           were       only     six          special        agents           and     some        Lubbock

18       police,        some           other       law     enforcement                 people             Keep         him    up     until

19       about        6:30        in    the    morning,              bring       him     back        up     here        at    i0:00,         and

20       start        questioning              him       again_

21                           And        it was       about           l:00--or           12:00,           1:30,         the    evidence

22       will     show       you,        when       this       statement               was    written_                 It was        after

23       Dr.. Butler          bad        been       in     a room          that's        much        smaller            than       this,


24       probably           from        that    corner              to    the    door,        maybe,            with     the       blinds

25       drawn        and    the       microphone              cut        off    so that            no    one     outside            could
 1   hear°          Dr.    Butler           isn't       used        to    these        conditions°             He's        a


 2   scientist            who       works        by himself              in the        lab.      But        this    is what


 3   happened_

 4                        And       he     said,       look,     my       research         was       intended         to

 5   benefit         the       public,           and    I regret           that       I have      caused           any--       He

 6   did     regret        it             It's     like       finding          your     car    missing         and     you     go

 7   out     and     get       the        police       to look           for    it--that's            what     happened           in
                                             J

 8   this     case--and              then        finding,           "Hey,       I did      something--I'm                  sorry_"

 9   That's        what        he    did.


i0                        Government               says,       well,       we    could        believe         that,        but,


II   you     know,        all       these        financial           issues,          they     were     what        caused        all

12   this     to happen              in this           case.        They        didn't        tell     you     that        he was

13   about     to     get       a million-dollar                    grant        from     the     FDA       on January            the

14   lOth


15                        MR        BAKER:         Objection,             Your        Honor,      argumentative_

16                        THE       COURT:         Overruled.


17                        MR_       MEADOWS:            The     evidence          will        show     you     that    he      was

18   going     to get           that        grant       and    be    a consultant                to    that        study          He

19   didn't        have        to    worry       about        Texas       Tech_          The     FBI    interrogates


20   him,     and     they          tell     him    the       only       other        explanation            was     that      Tom

21   Butler        had    previously               accidentally                 destroyed         the       vials,     and        the

22   FBI    convinced               him    that     had       to happen,              because,         as    a scientist,

23   the    only     other           losiesl        explanation                 is_    hey_     if     you    guys     are        the


24   experts        and        you're        sure      they     are       not     stolen,         and       they     are

25   missing,        I must           have       destroyed           them        because        that's         the    only
                                                                                                                                     48




 l   thing         that       could       have     happened             to       them

 2                        They       then       guided         him      through           that        written          statement

 3   that     you        saw.        They       didn't         just,          why    don"t        you      write        something

 4   down     and        let's       see     if you          like       it--we'll            see       if we          like    it_

 5   Oh,     no          Sentence          by     sentence_                 But     you    know        something?              They

 6   still        couldn't           get     him       to    admit          he    lied,     because             he     didn't,          and

 7   the     evidence            is going          to show             he    didn't,            And       they       told     him

 8   everything            was       going       to     be    okay          if he        just     agreed          that       the

 9   vials        had     been       previously              destroyed,              because           everybody             was

l0   going        to be        reassured           then       and       everything              was       going       to be        okay

ii                        Butler          signed        the        statement;             then       he    had       the     shock        of

12   his     life.,        Subsequently                 arrested             and    put     in        shackles          and    taken


13   to    jail           And    they        said,          this       statement,           which          never        says       he

14   lied,        proves        he    lied       to     the    government                 and    he       should       be     in _ail

15   for     that,         He    may       have       embarrassed                 them          He     didn't         lie     to

16   them°


17                        The    Texas          Tech        contracts°              First        of       all,       Texas-_split

18   contracts            like       we    have       here,         they         don't     violate             the    Texas

19   constitution               about       using       state           property°               Yon       are    going        to hear

20   evidence           about        that,         In fact,             you       are     going       to       find    out     that

21   Texas        Tech    university,                 the     undergrad             school,           they       specifically

22   allow        split       contracts            in their            written           policies,,              I mean,           if    it

23   violated           the     constitution,                 why      would        they        put       it    in their

24   policies           like     that?

25                       And     Tom       Butler       had        a    special          arrangement                   He     did.
                                                                                                                                49




 1   We     agree     on    that_          In    1989--           And     Butler          is a renowned

 2   scientist.             It's     prestige           for       Texas        Tech      to have         him     down       here


 3   doing     work,        writing         articles,             which       he    writes         a substantial

 4   number        of scientific                articles          every       year,         Butler        was       told     in

 5   '89 that         he would        be        allowed          to concentrate              the     majority              of his

 6   time     doing        medical     research               as long         as    he     covered         the      nonstate


 7   portion        of his     salary            and    related          expenses_

 8                     _d     you're        going            to see      internal           charts        from       Texas

 9   Tech     Med    School         that        show    that       he    did       just     that         He      covered


I0   his    nonstats         portion        of       the      salary,         and     he    covered        his

II   expenses           And    in     addition             to    that,        while        Tsch     didn't          receive

12   additional            substantial            sums       of money,             they     received           the


13   prestige        associated            with        having        Tom      Butler        working         there,          doing

14   research              That's     what        they        told      him.        He     did     it all        the      way

15   through_

16                    Now,     let     me        tell      you,      okay,         I'm     not     telling          you     that

17   every     penny        is accounted               for      correctly.               I am     going        to    tell       you

18   that     there     was    an     audit°            This       very       audit        that     they       talked

19   about     that     supposedly              was     looking          at     Butler,          first     of       all,     it

2U   starts     out     and    says,        we're          not     looking          in any        particular


21   person,        We're      trying           to     examine          the     policies          of Texas           Tech_

22                    That's         what       the     evidence           is      going     to    show°            It    didn't

23   start     looking        at     Tom    Butler_              And     it     says,       hey,    we're           going       to

24   look     at how        these--         And        you      know     what       it finds?            It      finds       that

25   the    Tech    policies          are       vague        and     confusing               _md     the       other        thing
                                                                                                                                     5O




 1   it     finds          with     regard           to    these        expense           allocation             issues,        if we


 2   get     to      that,         it     finds       that          only     I in        i0 of     the      professors              at

 3   Tech       do     it        correctly.

 4                          It's        not        a crime,           folks_         It's       a civil          issue_         If


 5   there        are       adjustments               to be          made,       they      will      be     made.         If money

 6   is    to     be       paid,        it will           be    paid_         If     it's      not        to be    paid,        it

 7   won't        be       paid          But       it's        not     a crime       beyond          a reasonable              doubt.

 8   This       isn't        a civil           case        where        Tom      Butler        properly           accounted              for

 9   each       and        every        expense                It's     a criminal             case       where       the burden

I0   is    on     the       government              to     prove        it beyond           a reasonable                doubt

II   That's          what        the     burden           is on       this       case_


12                          Mr.. Webster              showed          you     the    charts          with       the     two

13   contracts,              split        contracts.                   "This       is not        the      way     it's    supposed

14   to work           "     Folks,           in    1994,        a person           in    the     Accottnting


15   Department              by     the       name       of     Mike       Burns     realized             that     there       were

16   two     contracts              that       were        out       there       that     the     IRB      had     approved              for

17   Dr.     Butler          to work           on,       and     they       were     a company             called        Hoffman

18   LaRoche,              and    you're           going       to     see     it         You're        going       to    see    the

19   contract_               You're           going       to     see       the     IRB    approval_

20                          And    Texas           Tech       wasn't        getting         any      money        out    of    those

21   contracts,              and       Mike        Burns       said,        "I've        got    a question              about

22   this_        I don't              understand              this_         Why     is     this       happening          this


23   way?"        He's           going        to    tell       you     from        that     stand,         if he        says    what

24   he    told       us     when       we     interviewed              him,        "I went          to    my     superiors          and

25   asked      if      that       was       okay,        and        they    said,        yeah,        it's      okay          We    got
                                                                                                                                     51




 1   a special           deal        with        Tom    Butler_"               But     you       know       something?               That

 2   deal     is    not        consistent              with        some      of     the    written              policies        that

 3   Texas        Tech    has        published.

 4                       And        so    it's--you're                 going        to have           to    see     and       hear

 5   that     testimony,                 look     at    those          policies           and     then          look     at    the

 6   administrator_                 now        who     are       _oing r        "Oh,      wait       a     minute_            I would

 7   never     violate             a policy."                Some       of     those       administrators

 8   themselves           have           consulting              contracts.               And     they          say,     "Oh,

 9   consulting           contracts               are      different."

I0                       In     this       case,        Dr.       Butler          covered         all       of the        expenses

II   that     Texas       Tech           had.        Did     he    pay       some      out      of       his     own     pocket?

12   Yes,     he    did.           Is     that       a crime?             That       will       be       for you         to

13   determine           at     the       end    of     the       trial_           But     based           on    the     evidence,

14   we're     going          to    ask     you        to return             a verdict           of not           guilty        on

15   that     issue_           It's        not       a crime              We      don't       deny        getting         these

16   contracts.               The        drug    companies              signed         for      them

17                       Oh,       and     the       idea       that      the      checks        went           to his        house--


18   did    you    hear        that?--into                 his     personal            account.                 Guess     what?

19   Dr      Pence,       the       head        of     the      IRB,      signed          the    contracts


20   authorizing              those        checks          to     go    to his         house_             oh,     but i you

21   know,     now       it will           be,       "I didn't            know            I couldn't              have        known.      "


22   Well,     you       will       get     to       see     the       contract,           you       will        get     to see        her

23   signature,           and       you     will        get       to see        that       happened.

24                       Oh,       and     one       other        thing           During         this           period        of time,

25   Tom    Butler        used          this     money          that      he    got      on     the       side,        this     second
                                                                                                                                       52




 1   contract,            used        it    to make           contributions                 to Tech,            over        $300,000


 2   worth,        by     the    way_            Used        it    to pay        expenses           that        other        doctors

 3   who     couldn't           get        funded        on       grants     in       developing               countries;              he

 4   sent     them        money.            He used           it    to     pay     for      patient            referrals              from

 5   doctors        here        in Lubbock.                   He    would        pay       them     $500        or    $750        a

 6   patient        for      referring                patients            to his       study,        would           write        them        a

 7   check     and        give     them          his     personal           check          for     it.     Again,            this       is

 8   not     a civil         case          about        whether          Butler        properly           accounted               for

 9   each     and       every      penny                It's       a case        of    criminal           fraud

10   allegations,               and        the    burden           is on     the       government              beyond         a

ii   reasonable            do__bt_          "


12                       Tax     charges_                They_went           over          Tom    Butler's--they                      went

13   through        his      lab,          they       went        through        his       house_         You        heard        of    the

14   search       warrants            that        they        served        to    find       every        little        scrap           of

15   paper     and       see     what           was     there,       because           once       they     decided           he        was

16   the    one     they        wanted,           they       were        going        to    find     out       a way        to        get

17   there_


18                      Tom      filled           out     his       own     tax       returns°            Nothing           unusual

19   about     that_            Millions              of Americans               do         He    reported            his    income,

20   and    then     he      deducted             estimated            expenses             associated               with    those

21   contracts          on      his    return.               Now,        technically,              everybody            is going

22   to    tell     you      that's          wrong_            Okay?         You       shouldn't           deduct

23   estimated          expenses.                 But     you're          going        to hear           from        experts           that


24   that     commonly           happens.               When       people         know       they        are    going        to        have

25   expenses        associated                  with     income,           they       deduct       them_
                                                                                                                                   53




 1                         The     IRS      had      even        written        Tom      about      his     1997         and      1999


 2    tax     returns              They       wrote        him       letters       about          them         Oh,       they

 3    didn't         come    out        and    conduct              an audit       and      look     at     every         penny,

 4    but     they        wrote       him     letters            about      them      where        he had       done        the

 5    same     thing        that        he did        on       this    2001      return          that     they        are      now

 6    charging         him       with       a crime            for_      And     they       wrote        him    a letter,

 7    and     Tom    wrote        them        back       and      said,       hey,       I have      set       up     a reserve

 8    for     40,000_


 9                         Well,       technically,                 reserves          don't       work     under          the      tax

I0    laws,,        But     he didn't              hide     it      from      them_         He    gave     them          a copy         of

Ii    the     check       where        he had        sent        the     money        off    to hold           it     in a


12    temporary            investment.,              And        you    know     what?            They     wrote          him     back

13    and     said,        fine,       thank        you     very       much           You    don't        owe       us    any

].4   money_

15                        What        was     he    to     think       then?          That's       a question               you

16    will     be    asked        based        upon        the      evidence          in    this     case            He     was      to

17    think,        hey,     they        wrote       me,        they     told      me what         I'm     doing          is okay_

18                        1999,        they        write       him     again       asking         him     about          grant

19    income_         We're           going        to have          these      letters,            Okay?         You        are

20    going     to get           to    see     them       up     here_         It may        be    a couple              of weeks

21    before        you     get       there,        but     you       promised        us     you    would        be       patient_,

22    You're        going        to    see     the       letters         from      the      IRS,    and        they       say,

23    1999,     we    have        got       another         question           about        these--            Again,          they

24    never     raise        an issue,               Not       an     issue_


25                        After        January           14th,        2003,     after        the    searches,               after
                                                                                                                                          54




 1   looki_g            through           every        scrap         of paper             and       Tom     had        reported

 2   missing            vials,           they       raise       an        issue      about          it_      And        Tom    says,

 3   "Okay,            I'm    going        to       take     my      returns           to      a CPA_"             The    CPA

 4   suggested               that        Tom     amend       his          '99, 2000,             and       2001     tax       returns,

 5   because,            as    I told           you,        this          estimated            expense           amount        up    here,

 6   that's        not        technically               correct.                The       CPA       says,        change        that°

 7   You     shouldn't               do    that.


 8                           Tom     did       so      He       changed             it,     and       he    paid        all    of    the

 9   tax     in    full        on     March          3rd,       2003            But       once        the ball           started

I0   rolling            down        the    hill,        it continued                   to roll,             and     on April

Ii   the     10th,           2003,        despite          the       amended          return           that       was     filed , the


12   government               charged           Tom    with          tax       fraud        and       later        included          it    in

13   £he     superseding                  indictment.

14                           Now,     in order             to       convict         Tom        Butler        of     a criminal             tax

15   violation,               the     government                must       prove          beyond           a reasonable              doubt

16   that     Tom       didn't            just       make       a    mistake,             that        he    didn't        just       rely

17   on    the     IRS        when        they       kind       of     audited            or    wrote        him       letters        about

18   the    returns            and        said       they       were       okay            That's           okay       too,     because

19   that's        not        a crime           when       you       do    that,           No,      they         have     to prove

20   that     he       specifically                  intended             to    defraud,            specifically                 intended

21   to    defraud_                Can't        be    a mistake,                can't          be   by      accident,           or    it


22   can't        be    in good-faith                  reliance                on   the        fact        of,    hey,        I get

23   audited           before        and        they       said       it was          okay_           But        that's


24   something--                   And     you're          going          to    bring          your        common        sense       into

25   this     room           and    sit        up    there          and    evaluate             people           who     testify          and
                                                                                                                                            55




     1   exhibits          that        you       get        to see       and     look        at_        You     get       to    do that

 2       in     this      case,


 3                             Let     me     tell      you        about       some     of     the       evidence              that's


 4       going          to unfold           in    this           case_     You     are        going        to have             testimony

 5       from      various           people             The        government           gets        to go        first,              I don't

 6       know      who--I        know         their         first        two     witnesses,              because           in       order        to

 7       make      this        trial        a little             more     organized,               we    actually              do    agree


 8       on     some      things,            We     tell         each     other       witnesses               perhaps           48 hours

 9       in     advance         and     we       try    to make           it go       faster            here,       because           the

I0       judge      wants        it     to go          fast        and    you     want       it     to go        fast_              And    yet

II       we   want        to    communicate                 effectively            with       you,        because              it's       very

12       important             that     you       understand              both     sides           of    the     issue_

13                             And    you're           going        to hear        Mr_       Jones        first            Mr_        Jones

14       is a      safety        officer           for       Texas        Tech          He's        the       person           that       you

15       go   to    when        you     have       safety           q_estions,               The        evidence          is        going        to

16       be   that       before         Mr_       Jones          was     a safety        officer,              he     traded          stocks

17       at home_              Before        that,          he was        a Prudential                  broker,        and          then,


18       yes,      he    had     a degree              in    chemistry,,              But     that        was       the    safety

19       officer_          And        the     evidence              concerning           Dr,        Jones       when       he        gets       up

20       there      on    the        stand--and              I don't        know        what       he's--necessarily

21       what      he's        goins     to       say       this       time,     but     I know           what       he    said           in

22       the past               _hnd the         evidence              is going         to    show        you       that       Dry, Jones

23       is going         to     say,       boy,        I was          shocked     when        I saw           that       plague                I

24       never      knew        he had        it,           He    wasn't        authorized               to have          it,         He

25       shouldn't         have        had       it
                                                                                                                                     56




 1                        Well,       wait       until        cross-examination                       of     Dr        Jones

 2    before        you    make       up    your        mind        about       his       testimony_               Wait       until

 3    then     so    that       you     can      hear        and     see      what       the     documents              show,        what

 4    his     own    handwritten              notes          show,        that      the        fact     is    that       in

 5    October        of    2000,        Dr.      Jones,            three      months           before        this,       suggested

 6    that     Dr      Butler         be    licensed              for_-go          ge£     _ formal           license           with

 7    the     CDC_        "I know          you're        working             with       these        guys,         I know       you're

 8    wdrking        with       the    government,                  but      we ought           to go        ahead       and     get       a

 9    formal        license          with     theme"              Dmd     before         that,        he     had       told


I0    people,        "Getting           a license             was       no    big       deal,         I would           fill     out

II    most     of    the       paperwork           "     But       you       know       something?                He    didn't

12    fill     out     any      of    the     paperwork,                  And      he    claims         he    was       shocked

13    and     surprised          on    the       14th        of     January         that        there        was--or          th e

14    13th     of January--that                    there          was     plague         here_

15                        The    other        thing          you     are      going       to hear            that's          going        to

16    be    interesting--you                  know,          they       told       you,       gee,     Dr_        Butler        writes

17    in his        notebook          on    I-Ii,        "I'm        missing            the     plague        vials_"            And

18    this     was     something            that        was       huge.         [t could             cause        calamity.


19    Why     wasn't       he    more       worried           about          it?        Why,     with        his       family

20    sitting        around,          did     he    not       do    more        about         it,     Mr      Webster           asked

21    in    his     opening          statement_

22                        On    1-13,       the        day    before          he goes           to    see     Dr_       Wesson        and

23   others         at Teeh,          he went           to Mr           Jones,          the     safety        officer,

24    Mr      Jones,       the       safety        officer,             heard       on    1-13,         "Hey,          I'm    missing

25    some     vials       here,"          and     Dr        Butler          took       him     to his        lab       and     showed
                                                                                                                                          57




     1    him     where       the     vials         were      missing_               Guess        what_            No       Roman

     2    candles        went        off_        Dr_       Jones        goes        back     and       tells        his        boss,


     3    "Hey,     Dr.      Butler          says      he's           got    some     vials           that        are    missing               We

     4    don't     know        yet    whether             they        are    missing            or stole_              "

     5                       And      that's          going           to become           important            later           on,      those

     6   phrases,         missing           or      stolen,            because        that's           what        Dr        Butler       was


     7    saying       repeatedly              to     everyone              that     he got           a chance           to     during

     8   the     early       hours        of     1413       and        1-14.        He     was        telling           them       all,


     9   missing        or     stolen.              And     many        of    them,        when        they        talked          to    the

I0       FBI,      said--they             only        said       missing              They       never        even           said

ii       stolen_          Obviously,                law     enforcement              officials               focused            on      the

12       possibility            that        they       were       stolen,            And     that's           only           right       that

13       they     did     so_

].4                          But      the      fact       was,        initially,            Dr        Jones,            when       he    heard


15       it,    goes      and      tells        his       boss,        who     is    in     charge           of     all       the       safety

16       for    Texas        Tech,        "Hey,       we've           got     this    problem                 We've           got       some

17       missing        plague         vials        down      here           in Dr         Butler's           lab_"            They       have


18       family,        they       have      friends             in    Lubbock_             Do    they        _un        out       and    tell

19       everybody?             No          Because          they       are        still     looking              for        the     vials_

20       That's     why       they      did      that             Not       because         of    any       sinister               motive

21       or because           some      audit         was     about           to uncover              something.

22                        And        let's       do       talk        about        that     audit       fo_         a minute.                 It


23       is no     secret          that      Dr_      Butler,           like        a lot        of    research

24       scientists,            didn't         get     along           well     with       the        IRB     st        Texas        Tech..


25       Some    drug     companies              didn't          get        along     with        the       IZqB        at    Texas
                                                                                                                                         58




 1   Tech.          Dr     Butler--and                  he will         admit         it,     part        of      it's    his

 2   fault.          He    got        in a        catfight           with     a lady          by    the        name      of

 3   Dr_     Pence,        who        is head           in     charge       of    the       IRB,     over          the    IRB_           And


 4   they     were        like        two     kids        in a       sandbox          fighting           for       to_s_           And

 5   she's     a very           powerful            person.             And      she    initially               filed         an    audit


 6   request        with        the     FDA,        the       Food      and      Drug       Administration,                    She

 7   reported            Dr.    Butler            and    said,         he's      doing       things            illegally;            you

 8   ought     to come            in here           and       search        and       look     at this.

 9                        And     Dr_       Butler           goes,      you      didn't       even        talk          to me       about

I0   this.      You        didn't           raise        the     issues.              How    can     you        report         me    to

II   the     FDA?


12                        Well,        we    did        it,    and      I'm      on    the    IRB       and       I'm     a

13   federally            protected            committee             here        at Texas           Tech,         and     because

14   I'm     federally           p_otected,               you     can't        do      anything           about          it

15                        So    Dr_     Butler           had     to wait          for       the     FDA      to    come        in,       and


16   they     came        in    and     they        found        that       there       were       no     federal

17   violations,               none.         But        the    drug        company_          all     of      the      protocols

18   now,     all    of        their        studies           involving           the       same     thing,           they         all

19   had     to get        audited.               Not     a happy           customer_              And       so    what


20   happened        then        was,        Dr_        Butler       said,        I'm       going       to     file      a

21   grievance           against            you,        Dr.    Pence..         You      shouldn't              have      done

22   that


23                       And     Dr_        Pence        said,       you      can't         file    a grievance

24   against        me.         I'm     head       of     the     IRB_         That's         nongrievable_                     And

25   wrote     the       faculty            and    said,         you    can't         search        into          me_
                                                                                                                                  59




 l                        And        they        said,      yes,        we    can_         And     they       did.       And     the

 2    conclusion            of     that       grievance             was c-

 3                        MR_      BAITER:            Objection,              Your     Honor.           Motion          in ]imine_

 4                        THE      COURT:             At    this        point,        I'll       sustain_              And,


 S    counsel,         at       some    point,             we     can    address           that     issue_

 6                        _.      MEADOWS:                 You     are       going     to hear          about          the

 7    conclusion            of     that      grievance              from       that        stand       up    there,          because

 8    it's     a different              reason             than     what       they        told    you       in     their


 9    opening        statement.                  Just       keep        an    open     mind            You're          going    to

10    hear     it.        _md     when       you       hear        it,       you    will     know       that        there       is a

li    different           reason        for       the       fight        between          Pence        and    Dr.       Butler.

12                        And     this       is not             only     at Texas           Tech,       folks_           What

13    you're       going         to    see       is    that        these       three        institutions,                the    FDA,

14    the    CDC,     and        the    U_S.          Army,        all       had    IRB    problems_               Because,          you

15    see,     these        tests       are       taking           place       in Africa.               And       the

16    question--               And     that's          the        only       place     the       plague        is now,

17    Madagascar,              Tanzania,              some       other        country        in Africa             where       they

18    are    testing           for     it,       and       that's        where       you     go_        You       go    find    the

19    disease        and     you       find       out       if     the       antibiotics           that       you       want    to

20    shoot     somebody              with       can       kill     the       disease        and       let    the       patients

2].   live.        It's        very     elementary_                 and       that's       what        they       are    trying        to

22    do,    and     see       what     the       side          effects        are

23                        And     all       of    these          people        have       problems           with       their     IRB..

24    They     all    want        to achieve                a    goal,        and    that        is,    we    want       to    find--

25    we    want     to     label       garamycin                or another            drug,       we       want       to label
                                                                                                                                               60




     i    that        so    that       it     can     be    used      in      case       of     a bioterrorism                     attack


     2   here         in the          [_ited        States_          We      think        it works;               we    just        haven't


     3   tested            it    on enough           people         yet.          And     where        we    have        tested            it,

     4   it has            worked_


     5                           And    they        were     all     having             problems        with           their        IRB,

     6   just     like           Dr_    Butler        was,       because            the       IRBs     are        trying           to    shield


 7       everybody               from       any     possible         liebility_                  You    know,           we don't            want

 8       Tech     to be           involved           in this         if      somebody            someplace              is going            to

 9       say     they           had    a side        effect         from      the        drug     that       one        of    our

i0       doctors           consulted              on..      So Dr_        Butler          wasn't        allowed              to     really

II       give     them           shots_           He had      to     be      there        and     tell       them        what           to do

12       in    Tanzania                 In     some        cases,       he    he3ped           them     draw           blood.            This

13       guy     wasn't           in, you          know,      Paris,          France.             He was          in Tanzania

14       back     in       the        jungles,        risking           himself           to    try     to    find           a cure,

15       because           the        FDA,    the     CDC--          And      isn't        that        intaresting_                      The

16       CDC     is working              with        this     guy,        asking          him     to hand-deliver                        it,

17       and     Dr        Butler        is       charged        with        felonies           by     the    government

18       because           he     didn't          tell     the      CDC      he    had     the       stuff.             Now,        I admit

19       the     CDC       is     a big       agency_            Okay_            But     they       were     working              with        him


20       and     encouraging                 him    to     hand-deliver                 the     specimens,               and       that

21       evidence           is undisputable                   in     this         case

22                              Now,     what's          another          type?           I have        told       you        about

23       Dr.    Jones           and     some       people        from        Tech       are     going        to    get        up        there.

24       You    are        going        to see        those        e-mails_              And     those        e-mails              wil]

25       detail        for you--you                 don't        have        to believe              a lawyer,               you        don't
                                                                                                                                              61




     1   have         to believe             some       witness              who    may        want     to       change       his

 2       testimony              after       1-14_            You       can     look        at    those        computer             e-mails,


 3       that       came        off    the        server       that           haven't           been       changed          and     we all

 4       agree        are       authentic,              that       tell        you        Dr.    Butler          was      authorized                to

 5       do     these       things.

 6                            And      You're         going            to     learn        that       Dr.     Butler          safely

 7       transported                these      materials.                    He     put     them        in watertight                   vials.

 8       And     by     the     way,        there       was        a    little        gel        in     there,          On     top       of    the

 9       gel     is where             the    YP     bacteria--                     What     you       do     is you         take        some

i0       out     of     there         and    put     it       in       a petri        dish,           a little          plate,           and

ii       then       you     take       a drop        of      your           antibiotic            and       you     put       it    on       that

12       plate        near      the     petri        dish,             and    if     it kills              the     plague,          and       for

13       how     long,        and      how     near       you          have        to put        it to       the       little

14       droplet--Dr.                 Butler        will       tell          you     once--others                  will       tell       you,

15       if    he     doesn't,          that       when        it's          on     that        petri       dish--and              he    will

16       give       you     a much          more     scientific--but                       that's           really          what        it    is.

17       You     take       these       things          and     you          shoot        them        and    you       see     if they

18       die     or    live


19                            And      that's        what       was          going        on     at    Texas        Tech.           And

20       notwithstanding                    the    fact        that          some     people           at Tech          said,           "We

21       don't        know,"        in just          a few             moments,           either           today       or     tomorrow

22       morning,          you're           going       to     see       documents,               and       the     documents                tell

23       you    that       Dr       Butler         is     entitled                to have         YP,       that       he's        entitled

24       to have          cultures           of YP,          and        it describes                  exactly          the

25       experiments             that        he's       conducting                 right        here        that       he's        talking
                                                                                                                                      62




     1   about


     2                        But     Tech       says,        "Oh,       we     didn't         know     about        it_        We    had


     3   no     idea     this        was       going     one"           Well,       you     know       the    interesting

 4       thing?          Those        documents              come       from     the      files        of Texas        Tech,

 5       They     come        from       not     the     IRB,       but       the     IBC      committee_             This       is       a

 6       committee            that       deals        with     biohazardous                 materials          and        is


 7       charged--that's                   the       committee           you     report         these        things        to.        And

 8       in     the    year        2000,       Dr_     Butler        applied             for    permission            from       Texas

 9       Tech     to have           yersinia           pestis        to have             cultures        of    it_         That's


I0       what     it says           on     the page           3 of       the     form           They     can    deny           all    they

Ii       want     now,        and     some       of    then       will_         But       that's       what     it     says          in

12       writing         in    their        files°

13                            THE    COURT:            You    have        got       about       3 minutes_

14                            MR,    ME_OWS:              It's       going          to be       a long        time.

15       Sometimes            during        this       trial,        I will          bore       you          I won't           say

16       anyone        else,        but     I will             It's       not       intentional_,              We    are        going

17       to try        to get        w_tnesses           on       as quickly              as    we    can     for    you_

18       Sometimes            we    will       ask     witnesses              a question             that     you    will        be

19       nodding        over        there        knowing          the     answer          to,    but    we     need        to make

20       sure     that        we    are     communicating                 with       each       and    every        one     of you,


21       because        each        and     every       one       of you        is       important,

22                           Now,        the     judge       is     going       to       instruct       you     not       to     talk

23       about        this     case        among       yourselves,              not       to talk       about        it     with

24       anyone        else        until       all     the    evidence              is    in_        Well,     you    can

25       imagine        how        difficult           that       is,    but        there's          a very     good        reason
                                                                                                                        63




 1   for     it_       It's     when     you     verbalize         your       thoughts,          it     suddenly

 2   makes       a deeper         impression           up     there.         Okay?        And    it's        harder--

 3   after       you     verbalize        your        thoughts         early    on,       then       you     kind      of

 4   have     to    change        your    opinion,            if you     have       to    change        it    later         on

 5   because        of the        evidence.


 6                       In this        case,     we    simply         ask    you,       wait    until        the      trial

 7   _s    over     to make        your        decisions        about        these       issues.           Wait     until

 8   the    defense         gets       a chance,        for     example,        to show          you       the    issue,

 9   the    other        side     of    the     story       with   regard       to       the    IRB    controversy_

I0   Wait    until        we get        a chance        to show         you    that       before       you       accept

II   the    government's               explanation,           because         there       is another             side       of

12   the    story°          And    after        you    have     heard        that    side       of    the     story         at

13   the    end     of    this     case,        whenever        it happens,              we    are    going       to    ask

14   you    to     return       a not     guilty        verdict         on    each       and    every        count      of

15   the    indictment_                Thank     you.

16                                                      *****

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