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20 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 24 of the proceeding and Day 15 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
3792
47JSSAT1
1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
3 UNITED STATES OF AMERICA,
3
4 v. S1 02 Cr. 395 (JGK)
4
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
6
7 Defendants.
7
8 ------------------------------x
8
9
9 New York, N.Y.
10 July 19, 2004
10 9:15 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
13
13 District Judge
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1 APPEARANCES
1
2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ROBIN BAKER
4 CHRISTOPHER MORVILLO
4 ANTHONY BARKOW
5 ANDREW DEMBER
5 Assistant United States Attorneys
6
6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
8
8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
10
10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
12
12
13
14
15
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated.
4 I received this morning a letter from Ms.
5 Shellow-Lavine raising some issues with respect to the prison
6 visits. I haven't had an opportunity to review the letter
7 and -- it's from Mr. Tigar. And the final line is that we are
8 corresponding with the government about the way in which the
9 admissibility proceeding should be handled and the parties
10 should let me know if there is something that I have to decide
11 on that and, if so, when. Plainly if there is an issue I
12 should decide it and have whatever information I need in
13 advance.
14 MS. BAKER: Judge, I just received these letters a few
15 minutes ago, both the letter that is addressed to your Honor
16 and also a letter addressed to us, the U.S. Attorney's Office.
17 I haven't had time to digest the entire letter to your Honor
18 but I did want to address two portions of it. I know that your
19 Honor still needs to read it as well, but I think it would help
20 your Honor to have this in mind in reading it.
21 The front page of it includes four bullet-pointed
22 items. The second bullet-pointed item on the first page asks
23 for production of all parts of the February 2000 recordings,
24 including those redacted or minimized for any purpose by any
25 person or entity, including the FISA court.
SOUTHERN DISTRICT REPORTERS, P.C.
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1 I will represent to the court, as I advised Ms.
2 Shellow-Lavine earlier this morning when I received the letter,
3 that throughout the course of this case on several different
4 occasions the defense attorneys have been provided with various
5 forms of recordings of the prison visits. Early in the case it
6 was on VHS tape. Later in the case it was on DVD, but repeated
7 sets of recordings produced by our wall team, specifically the
8 correspondence would have been from AUSA Gary Stein or from
9 AUSA Carl Metzner or from paralegal Jaleen Orange. Any
10 recordings that came from the wall team, specifically including
11 recordings of the February 2000 prison visit, were completely
12 complete, meaning nothing had been minimized out. Nothing had
13 been redacted out from those recordings that came by way of the
14 wall team. So that second bullet point item in this letter is
15 already addressed. The defense has had those recordings for a
16 very long time.
17 The third bullet point item in the letter asserts a
18 belief on the part of defendant Stewart that the FBI agents
19 exceeded the scope of the FISA warrant and therefore concludes
20 with a request for the FISA warrant application and FISA court
21 order. I just wanted to remind the court for the record of a
22 fact that the court is already well aware of, which is in
23 response to the defendants' pretrial motion to suppress the
24 FISA evidence, the court specifically reviewed the way the FISA
25 surveillance had been carried out and the court specifically
SOUTHERN DISTRICT REPORTERS, P.C.
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1 found in denying that motion to suppress that the FISA
2 surveillance in this case, including the surveillance of the
3 prison visits, was not only lawfully authorized by the FISA
4 court but also lawfully conducted by the FBI, which means that
5 the court has already found that the FBI agents did not in fact
6 exceed the scope of the FISA warrant and the court already
7 specifically denied a defense request for the FISA applications
8 and orders and the government respectfully submits that there
9 is nothing new in the record, no reason for the court to
10 revisit those issues that were previously decided.
11 Now, turning to the defense letter addressed to the
12 government, and what, if any, issues that creates that might
13 require intervention by the court, unfortunately we may already
14 be at the point of needing the court's intervention. The
15 letter, which is addressed to my office, states in pertinent
16 part that the Jencks material that we provided as to a certain
17 witness "Leads us to seek a hearing on what was recorded, what
18 was redacted, and how the redactions were done.
19 "Second, the hearing would deal with the various
20 techniques to record, edit, alter, copy, and otherwise deal
21 with this material.
22 "Third, we will be wanting to know what technology
23 exists to alter this type of data.
24 "Fourth, we will want to know the extent, if any, to
25 which digital technology was used."
SOUTHERN DISTRICT REPORTERS, P.C.
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1 THE COURT: Okay. Hold on.
2 You say that already we are at the point where you
3 need court intervention. The letter is a letter from defense
4 counsel to the government and says that defense counsel either
5 seeks a hearing, and I can't recall the specific way in which
6 it said seeks a hearing, may seek a hearing. So far I don't
7 have a letter from the defendants asking to seek a hearing.
8 It's reminiscent to me of on the other side when
9 shortly before trial, if memory serves me right, there was a
10 letter from defense counsel with respect to the court with
11 respect to transcript issues and the prior letter by the
12 government had said we are willing to talk about these issues
13 and as soon as the defendants got that letter, I got the file
14 of correspondence back and forth and said it would be helpful
15 for your Honor to decide these four issues. Well, it turned
16 out it was not necessary because the parties constructively
17 worked it out.
18 Whether the defendants do seek a hearing or whether
19 the issues can be resolved between you, I don't know. So far
20 the defendants haven't sought it before me and, yes, the issues
21 have to be looked at promptly if these witnesses are going to
22 testify this week and there is something that is being sought
23 before the witnesses testify. But right now I don't have that
24 request. I suggest that at least the parties talk about it and
25 then I need a request.
SOUTHERN DISTRICT REPORTERS, P.C.
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1 MS. BAKER: Your Honor, I am not really sure what the
2 parties would talk about. The government is prepared to call
3 before the jury, which we believe is the appropriate approach,
4 the witnesses who will authenticate the original recordings and
5 a witness who will explain how redacted recordings, redacted
6 copies of the recordings, were made, and that is the approach
7 that the government submits is appropriate under the
8 circumstances.
9 We don't expect, based on everything that has happened
10 to date, that there would be any stipulation to replace the
11 testimony of those witnesses. Therefore, we decline to provide
12 free advance rehearsal for the cross examination of the
13 witnesses. We believe that we should simply be permitted to
14 present their testimony in front of the jury. So if nothing
15 else I would ask the court to accept my statements here as the
16 government's declination to consent to the defense request for
17 a hearing out of the presence of the jury. We don't believe
18 that that is necessary or appropriate.
19 THE COURT: Okay.
20 Mr. Tigar.
21 MR. TIGAR: If your Honor please, the letter in
22 question was sent to Mr. Dember, who has just arrived, in
23 answer to a letter that Mr. Dember sent to me. I would be
24 pleased that the purpose of my letter was to have a discussion
25 with Mr. Dember about suggestions I made. I look forward to
SOUTHERN DISTRICT REPORTERS, P.C.
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1 that, your Honor.
2 THE COURT: Okay.
3 MR. TIGAR: Now, with respect to my letter, it is my
4 understanding that the government -- that the FBI in addition
5 to recording at the prison did some other recordings in
6 Minneapolis that were not authorized by the FISA court. That
7 is my understanding. I don't want to invade anyone's privacy
8 by anything we do here. That is not my intention. But if that
9 happened, then we have not received the results of it or even a
10 statement as to what happened and when it happened. If it
11 happened that would bring us to the point of wanting to see
12 everything that was done in that surveillance which had an
13 unitary purpose so that we could exercise our rights.
14 If it happened, and if the recording was done without
15 FISA court authorization, then the fact that recordings took
16 place on that visit without court authorization would represent
17 the violation of the act elements of two federal criminal
18 statutes, passing the question of intent. That is the purpose
19 of my letter.
20 Nothing that Ms. Baker says addresses that. It is a
21 serious matter. How it should be addressed, it seems to me, as
22 well as the other issues here, which are quite independent of
23 that, is something as to which if the government has a position
24 I think perhaps they could send a letter or we could take time,
25 because it's not an immediate issue, when we could address it.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1
1 But that is the state of play, your Honor, with
2 respect to this request.
3 THE COURT: All right.
4 Let me take care of the other issues.
5 Coming in this morning I saw some jurors from a
6 distance in the corridor and I followed my own instructions to
7 just walk away, so I take it they won't consider that, if they
8 saw me with my clerk, a sign of impoliteness.
9 I got a letter -- not a letter, I was advised by the
10 District Executive that we have a request by an instructor at
11 the Columbia University, American Legal Language Program, to
12 have for class of 30 students observe the trial on July 26th,
13 2004. I bring that to your attention. There is room. No
14 special arrangements have to be made and I intend to tell the
15 representative of the District Executive that it's all right.
16 The courtroom is an open place. It's not as though any special
17 arrangements or anything has to be made, but I just bring that
18 to your attention.
19 Second, I had correspondence on Government Exhibits
20 2757T and 2757. The government objects to my proposed
21 instruction in a letter dated July 16. The instruction that I
22 said I would give was these documents are not admitted for the
23 truth of anything that is said in these statements and you may
24 not consider them for the truth of what is there. And my
25 recollection is that the defendants agreed to that instruction
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1
1 and the government objected. And the government submitted a
2 letter explaining why the statements had no truthful content in
3 any event.
4 Is that correct?
5 MR. BARKOW: Yes, your Honor.
6 THE COURT: Mr. Ruhnke.
7 MR. RUHNKE: Yes, your Honor.
8 THE COURT: I am prepared to rule on that.
9 All right.
10 I continue to find that the instruction is correct,
11 that the exhibits are not admitted for the truth of anything
12 that is said. The defendants disagree with that instruction.
13 The defendants do not disagree with that instruction. The
14 government asks me to reconsider it.
15 The government argues that threats are not hearsay
16 because in the words of Stratton, they are not "offered for
17 their truth. The threats are verbal acts." United States
18 against Stratton, 779 F.2d 820, 830 (2d Cir. 1985). The
19 government argues that the statements have no content that the
20 jury could mistake for their truth and that therefore no such
21 instruction is warranted.
22 The government suggests an alternative instruction
23 that indicates the various uses of the statements. But if, as
24 explained in Stratton, threats are not offered for their truth,
25 there is no prejudice to the government from telling the jury
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1
1 exactly that. Moreover, there are other parts of the
2 statements that discuss such things as prison conditions which
3 are also plainly not being offered for their truth. A simple
4 instruction that the statements are not offered for their truth
5 accurately describes the limitation on the use of these
6 statements.
7 MR. BARKOW: Your Honor, I didn't mean to cut the
8 court off if the court was still ruling.
9 THE COURT: No, I am finished.
10 MR. BARKOW: Since the court is going to give that
11 instruction, we would just ask, and I don't know if the exact
12 contours of the instruction were set out yet, but we would ask
13 the court do include the language of the matters asserted or of
14 the matters asserted therein in the court's instruction to
15 track the actual rule, which we think might lessen the
16 confusion that we were speaking about in our letter.
17 THE COURT: I have no problem saying "not offered for
18 the truth of the matters asserted."
19 Mr. Ruhnke?
20 MR. RUHNKE: That is acceptable, your Honor.
21 THE COURT: Next is the newspaper clippings and
22 Exhibit 2031. The newspaper clippings are 2004, 2005, 2006 and
23 2007. I have read the correspondence.
24 Anyone else want to be heard?
25 No? All right.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1
1 And 2031, which are contained in the same
2 correspondence.
3 With respect to the newspaper clippings, the parties
4 agree to the admissibility of Government Exhibits 2002 and
5 2003. The government also asks the court to overrule the
6 objections by Ms. Stewart and Mr. Yousry and to admit
7 Government Exhibits 2004, 2005, 2006 and 2007, or at the very
8 least to allow redacted versions of 2004, 2005 and 2007.
9 I reviewed the exhibits. I will sustain the
10 objection. The asserted relevance of the articles is to show
11 Mr. Sattar's state of mind in that he was aware of convictions,
12 but that is plain from Government Exhibit 2003, which was
13 contained in his file. It is also established from the tapes
14 that have already been admitted in evidence in which Mr. Sattar
15 discusses the conviction and the issues raised and the appeal.
16 The danger of unfair prejudice is that the articles
17 unnecessarily attempt to trade on the use of terms such as
18 "terror trial." The articles are also cumulative of the facts
19 of which the court took judicial notice and the articles which
20 are admitted without objection.
21 The government responds that the fact that Mr. Sattar
22 clipped several additional articles is relevant to his state of
23 mind and thus the three additional articles are not cumulative.
24 Whatever slight relevance this fact has -- and it is difficult
25 to afford it much weight -- is outweighed by the danger of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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47JSSAT1
1 unfair prejudice and waste of time. I leave open the one
2 possibility that the list in Government Exhibit 2005 of the
3 other defendants who were convicted may have relevance to
4 Mr. Sattar's state of mind but that would have to be
5 demonstrated in a far more specific proffer than it has thus
6 far been made. Thus, I will sustain the objections to
7 Government Exhibits 2004, 2005, 2006 and 2007.
8 With respect to Government Exhibit 2031, the exhibit
9 is in evidence subject to limiting instructions. The
10 government seeks to read Government Exhibit 2031 up to and
11 including the "terms explained." Those are several portions
12 of the book and may be read. Of course, any of the defendants
13 may seek to read other portions in their own case if they
14 choose to do so. Obviously the defendants have no obligation,
15 requirement, at all to introduce anything or to present any
16 case.
17 I have also reviewed 508 redacted. I reviewed the 508
18 series and I would be prepared to rule on the 508 series also.
19 Anyone want to be heard on that?
20 MR. RUHNKE: No, thank you, your Honor.
21 THE COURT: I have considered all of the arguments of
22 the parties relating to the 508 series of documents. For the
23 reasons already explained in granting the government's motion
24 in limine with respect to the admissibility of the fatwah, this
25 evidence is highly relevant and the 403 considerations do not
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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47JSSAT1
1 indicate that the fatwah should be excluded.
2 The same considerations apply to the admissibility of
3 the report of the interview with Mr. Taha. It is highly
4 relevant on the same issues and the relevance is not outweighed
5 by any danger of unfair prejudice. As the court explained, and
6 is now confirmed by the exhibit themselves, the evidence is not
7 unduly graphic and the references to Osama Bin Laden do not
8 render the evidence unfairly prejudicial. Moreover, unlike
9 other evidence relevant to Count 2, the government consented to
10 a limiting instruction that this evidence is "admitted only
11 against defendant Sattar," and with respect to this evidence
12 cannot be considered against defendants Stewart or Yousry.
13 The transcript of Government Exhibit 1002X
14 sufficiently authenticates the fatwah published in the August
15 15, 1998 Al-Quds newspaper as the fatwah Taha signed and Taha
16 adopted the interview with him and recommended it for
17 distribution and Sattar, similarly, acknowledged the article.
18 See generally Wagstaff v. Protected of Harold Corp. of America,
19 760 F.2d 1074, 1078 (10th Cir. 1985); In Re Columbia Securities
20 Litigation, 15 FRD 466, 478 (S.D.N.Y. 1994).
21 Sattar expressed his familiarity with the article and
22 thus it and the fatwah would be admissible for his state of
23 mind and intent. The fatwah itself is a threat and would be
24 admitted as a verbal act and not for its truth. See United
25 States against Stratton, 779 F.2d 820, 830 (2d Cir. 1985).
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1
1 While it is true that the interview itself reflects some
2 statements about Taha's intent and state of mind, which are not
3 hearsay under 803(3), this would include such statements as "we
4 will continue our hostility to the United States so long as the
5 Americans are hostile to our nation and as long as they hold
6 our sheikh in its prisons and as long as they continue to
7 support the Zionist entity in our Palestine, in our Jerusalem."
8 The interview also contains statements that go beyond
9 Taha's state of mind to describe what the Islamic Group has
10 done and how the Egyptian government responded. These
11 statements if offered for their truth could be admissible, as
12 the government proffers, against Mr. Sattar alone as statements
13 of a co-conspirator during and in furtherance of a conspiracy
14 of which Sattar and Taha were members. See United States
15 against Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993); United States
16 against Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969).
17 The fact that the statements were made before the
18 Count 2 conspiracy charged in the indictment would not prevent
19 their admission as co-conspirator statements so long as the
20 government eventually shows under Tracy and Geaney that the
21 requirements of a co-conspirator statement in accordance with
22 Rule 801(d)(2)(g) are satisfied. See also Stratton, 779 F.2d
23 at 829. The appropriate instruction for this evidence is "I
24 will take it subject to connection, which means you can
25 consider the evidence unless I subsequently instruct you to
SOUTHERN DISTRICT REPORTERS, P.C.
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1 disregard it."
2 Therefore, the appropriate instructions for this
3 evidence is as follows:
4 Government Exhibit 508 redacted, 508T redacted, 508T2
5 unredacted, and 508 T3 redacted, are admitted in evidence. You
6 will note that certain portions of Government Exhibits 508,
7 508T and 508T3 have been redacted. That simply means that
8 parts have been taken out or blacked out or removed. That is
9 done for legal reasons that do not affect your consideration
10 and you should not be concerned about that. These exhibits are
11 admitted only against Mr. Sattar and not against Ms. Stewart or
12 Mr. Yousry and you cannot consider those exhibits against Ms.
13 Stewart or Mr. Yousry for any purpose.
14 With respect to Mr. Sattar, the exhibits are admitted
15 only as to Counts 2 and 3 and you may assign to these exhibits
16 whatever weight you consider appropriate in your consideration
17 of Counts 2 and 3. However, I instruct you that Exhibit 508T
18 is received subject to connection with respect to the truth of
19 any matter asserted in it. That means you can consider the
20 article for the truth of any statements made in the article
21 unless at some point I instruct you to disregard them.
22 Finally, I have reviewed the redactions. The
23 redactions are appropriate. The article itself should be
24 redacted by taking out the photograph of Bin Laden. The text
25 does not have to be redacted because it is not otherwise
SOUTHERN DISTRICT REPORTERS, P.C.
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1 readable, unless I hear an objection that suggests that the
2 remainder of the article should be redacted to conform to the
3 redacted transcript.
4 The translation of 508T should be redacted as
5 indicated except the following redactions should also be added
6 or redacted: In addition to the redactions already in the
7 article, on page 2, the first two full paragraphs, should be
8 redacted beginning with "the signing" and ending with "from
9 different Arab countries." And the sixth full paragraph on
10 page 2 should also be redacted beginning with "the sources" and
11 ending with "collective leadership."
12 Are we ready to bring in the jury?
13 MR. BARKOW: I wanted to let the court know that what
14 we were going to do was start by finishing the speech that was
15 being read at the end of the day and then there is one more
16 that I think was admitted yesterday or, rather, Thursday. We
17 were going to read that.
18 At the end of that point I was going to offer into
19 evidence a series of Sattar search exhibits that are not
20 objected to and I didn't know if the court wanted me to list
21 those now just so the court and the parties are aware of which
22 ones I am going to be listing, or I can just do it when we get
23 to that point. We are not going to publish them. We are just
24 going to offer them.
25 THE COURT: If there are no objections I will take
SOUTHERN DISTRICT REPORTERS, P.C.
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1 your representation and I don't have to take a list now.
2 All right.
3 Bring in the jury.
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 Good morning, ladies and gentlemen.
7 Good to see you all.
8 All right, I believe when we left on Thursday we were
9 in the middle of a document.
10 MR. BARKOW: Your Honor, if I may, I would like to
11 publish briefly the first page of the exhibit just so the jury
12 can see the exhibit number and then pick up with page 5, with
13 the top of page 5. This is from the Sattar search evidence.
14 And it's a speech of Abdel Rahman.
15 Your Honor, if I may, if we can publish page 5. We
16 had finished page 4 on Thursday.
17 THE COURT: All right.
18 MR. BARKOW: May I proceed by reading the exhibit?
19 THE COURT: Yes.
20 (At this point the reading of Government Exhibit 2077T
21 in evidence was continued)
22 MR. BARKOW: At this point Mr. Dember, with the
23 court's permission, is going to read Government Exhibit 2079.
24 THE COURT: All right.
25 MR. DEMBER: Your Honor, may we publish Government
SOUTHERN DISTRICT REPORTERS, P.C.
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1 Exhibit 2079T?
2 THE COURT: Yes.
3 Ladies and gentlemen, I gave you the instruction to
4 consider on 2077 and 2079. The exhibits are admitted only
5 against Mr. Sattar and not against Ms. Stewart or Mr. Yousry.
6 They are admitted solely with respect to the knowledge and
7 intent and state of mind of Mr. Sattar and Omar Abdel Rahman
8 and you may consider them solely for that purpose.
9 MR. DEMBER: Your Honor, this is an exhibit from the
10 Sattar search.
11 (At this point, Government Exhibit 2079T in evidence
12 was read to the jury by Mr. Dember)
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
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1 MR. BARKOW: Your Honor, at this point the government
2 would offer into evidence and seek to publish to the jury
3 government Exhibit 2031.
4 THE COURT: All right. My recollection was this was
5 subject to the limine instruction.
6 MR. BARKOW: Yes, your Honor.
7 THE COURT: That is offered solely against Mr. Sattar
8 and not against Ms. Stewart or Mr. Yousry. And it's being
9 offered only with respect to the knowledge, intent and state of
10 mind of Mr. Sattar, and you may consider it only for that
11 purpose. All right?
12 MR. BARKOW: Your Honor, may we publish it to the
13 jury, the first portion, and read it as we publish it?
14 THE COURT: All right.
15 (Government's Exhibit 2031 received in evidence)
16 (At this point, Government Exhibit 2031, in evidence,
17 was displayed and read to the jury)
18 MR. BARKOW: May I have just a moment, your Honor, to
19 confer with Miss Shellow-Lavine?
20 THE COURT: All right.
21 (Off the record)
22 MR. BARKOW: At this point, I'll just offer a series
23 of exhibits from the Sattar search and publish them at a later
24 time.
25 THE COURT: All right.
SOUTHERN DISTRICT REPORTERS, P.C.
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1 MR. BARKOW: 2002, 2003, 2010S, 2013, 2013T, 2020,
2 2020T, 2021, 2022, 2023, 2023T, 2025, 2026, 2028, 2029, 2029T,
3 2037, 2041, 2046A, 2046B, 2046D, 2052, 2057, 2057T, 2066,
4 2066T, 2067, 2068, 2070, 2070T-A, 2073, 2083, 2083A.
5 THE COURT: All right. No objections. Those exhibits
6 are received in evidence.
7 (Government's Exhibits 2002, 2003, 2010S, 2013, 2013T,
8 2020, 2020T, 2021, 2022, 2023, 2023T, 2025, 2026, 2028, 2029,
9 2029T, 2037, 2041, 2046A, 2046B, 2046D, 2052, 2057, 2057T,
10 2066, 2066T, 2067, 2068, 2070, 2070T-A, 2073, 2083, 2083A
11 received in evidence)
12 MS. BAKER: Your Honor, at this time the government
13 recalls Scott Kerns.
14 THE COURT: Before we move to a witness, this may be a
15 convenient time for our morning break. Please remember my
16 continuing instructions not to discuss the case.
17 All rise, please. Follow Mr. Fletcher into the jury
18 room.
19 (The jury exits the courtroom)
20 THE COURT: All right. Please be seated, all. One
21 thought occurred to me which was on 508-T, I didn't see an
22 objection with respect to the translation. Is the translation
23 subject to a stipulation or is it just not objected to as a
24 stipulation -- as a translation?
25 MS. BAKER: Your Honor, we had not had a chance to ask
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1 defense counsel about that. Since your Honor rejected the
2 other objections, it was our intention to put that question to
3 defense counsel during this break.
4 THE COURT: Okay.
5 MR. TIGAR: Your Honor, with respect to Agent Kerns,
6 who is the next witness to come, and having in mind the Court's
7 sustaining of the government's motion in limine on GX 1300,
8 which is the exhibit he will sponsor, there is a file,
9 19990702_161314, containing 33,576,763 bytes. On the discovery
10 file, the file name is the same, and contains only 1,654,511
11 bytes. I would ask the Court's permission to inquire of Agent
12 Kerns, because these are both VOC files, containing the same
13 file name, what, if any, explanation there is for that
14 disparity.
15 MS. BAKER: Your Honor, this is one of the several
16 issues on which your Honor granted the government's motion in
17 limine to avoid wasting time and confusing the jury. The
18 explanation -- and obviously I'd have to check with Agent
19 Kerns, but the explanation would be that in the mass production
20 of the very large number of files in discovery, there were
21 certain files that were misnamed, and on the trial DVD's, the
22 signal-related information, the nonaudio data that appears in
23 each file on the trial DVD's, makes clear that each file on the
24 trial DVDs are what the government claims they are as far as
25 the dates and times of the calls.
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1 Without looking specifically at the prior file to
2 which Mr. Tigar is referring, I can only infer from all of the
3 circumstances that the file previously produced in discovery
4 was misnamed, and to go into the production of files in
5 discovery and the steps that the FBI took to produce
6 approximately 85,000 files all at the same time in various
7 different sets brings us precisely back to the time wasting and
8 confusion that the government sought to avoid by virtue of its
9 motion in limine. So we would ask the Court to adhere to its
10 prior ruling and not permit that cross-examination.
11 MR. TIGAR: My first observation is since counsel
12 doesn't know what the problem is, it's hard to know whether or
13 not this is relevant, what the government is doing.
14 My second observation is that in addition to what
15 counsel has described as a discovery problem, if you take a
16 look at the very first file listed on 1300L, which is the list
17 of files that the government is proceeding to put in evidence,
18 you find that the signal-related information gives us a
19 creation time of January 1st, 1970. And that's a date, your
20 Honor.
21 I'm not going to go into the rest of the ones listed
22 here, but of course I have a few more. That's not covered by
23 the motion in limine, but I'm trying to indicate I think we
24 have a problem here. I'm trying to do the responsible thing
25 and bring it to the Court's attention.
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1 THE COURT: The first item -- in response to what
2 Ms. Baker said, you raised another issue which doesn't appear
3 to be covered by the motion in limine. So that's not, so far
4 as I can tell, at issue.
5 I would allow a limited number of questions with
6 respect to the VOV files. The main thrust of the motion in
7 limine was the files produced in MP3 format and .wav format
8 rather than the VOC format, and, as I say, I would allow a
9 limited number of questions, if they go to the trial DVD and
10 the authenticity, reliability of the trial DVD.
11 MS. BAKER: Your Honor, I have a request which goes to
12 whether there is a good faith basis for the cross-examination
13 that Mr. Tigar proposes to conduct. If I am correct, and the
14 file produced in discovery that had the same name as the file
15 that we're now offering was misnamed when it was produced in
16 discovery, the signal-related information in the copy produced
17 in discovery would make that clear. And so I would request
18 that Mr. Tigar make the discovery disk available so that we can
19 see whether the signal-related information in that previously
20 produced file makes clear that it's a different call, because
21 if it does make clear that it's a different call and the
22 problem was with the naming of some other call produced in
23 discovery, then there's not a good faith basis for asking this
24 witness now whether there was some change in the same recording
25 from when it was produced in discovery till now, because it
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1 would obviously be clear that it was, in fact, two different
2 recordings, and the problem was a problem of a naming of a file
3 in discovery which has nothing to do with the accuracy or
4 authenticity of the recordings on the trial.
5 MR. TIGAR: The government presumably has a copy of
6 what it produced to us and can look at it. We'll bring a copy
7 and the government can look at our copy if they want, but what
8 Ms. Baker says about file naming isn't quite right. We have
9 now, your Honor, the Lockheed Martin -- what was purported to
10 be the Lockheed Martin materials. Well, they're not. The
11 government produced a diskette to us and I look now, for
12 example, at the -- a call on -- their proposed Exhibit 1300L.
13 Let's just take as an example, Item Number 2 there, which is a
14 1999 call, on the Lockheed Martin materials produced to us.
15 There's a file creation date of July 10th, 2004. So that's not
16 helpful to us to identify. The file name on the Lockheed
17 Martin production is the same file name as in 1300L, but with a
18 DDR suffix, not a VOC suffix. When we opened the Lockheed
19 Martin file, we find that the header and footer information
20 that purports to tell the date of the call is not there, which
21 means that file naming must have been a manual process done by
22 human beings because from the most original -- the originals
23 having been destroyed -- the Lockheed Martin compressed files
24 do not contain signal-related information that would permit you
25 to get all the information that is characterized as
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1 signal-related on the trial DVD.
2 And then if we turn to the trial DVD, we have all
3 these other problems of missing dates and so on. So I just
4 want to ask about that. And I will, if I may.
5 MS. BAKER: Your Honor, the files on the disk that
6 Mr. Tigar was recently given that are the files in the Lockheed
7 Martin format are copies of the files in the Lockheed Martin
8 format. The modified date that appears when you look at the
9 list of files, either on screen in a Windows environment, or
10 printing out a list like this (indicating). The last modified
11 date is supplied by Windows.
12 So that date is a reflection of when a Windows
13 operating computer was used to burn those files to DVD, and it
14 has nothing to do with when those files were originally
15 created, which was the date and time that the calls occurred.
16 I don't know what software Mr. Tigar used to look at
17 the Lockheed Martin files, but when I looked at them, using
18 Notepad to open each file, there is, in fact, nonaudio
19 signal-related information at the beginning of each file which
20 includes the telephone number and the date, although I will
21 proffer to Mr. Tigar maybe he didn't recognize it as the date
22 because it's a date in a different format. It's a string of
23 digits, which is the telephone number. It -- immediately at
24 the end of that string of digits is another string of digits
25 which is a two-digit year, a three-digit Julian date, and then
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1 a six-digit time. And when I say Julian date, I mean it's a
2 dating system in which you -- the days of the year are
3 consecutively numbered, 1 through 365, or 366 in the case of a
4 leap year. And so, for example, a date of a particular file
5 might show as 99117, and then a six-digit time, so that would
6 be the 117th day of the year 1999.
7 All of that has nothing to do with the question that
8 he just said that he wanted to ask Agent Kerns on
9 cross-examination, and I still request that -- I mean,
10 Mr. Tigar is right: I have a copy of whatever was produced in
11 discovery. It's obviously not here in the courtroom; I don't
12 know which particular disk or set of discovery disks he's
13 talking about. And I ask that he not be permitted to ask that
14 cross-examination until we've had an opportunity to determine
15 whether that original question he proposes to ask has a good
16 faith basis.
17 THE COURT: Well, Mr. Tigar is alerted to your concern
18 as to whether there's a good faith basis for asking the
19 question. I can't decide that, based upon what I've heard
20 here. Certainly -- and some of the arguments obviously have
21 nothing to do with the original question that was asked. They
22 raise other questions with respect to individual items on the
23 Government Exhibit 1300. And obviously I'll listen to whatever
24 the cross is and, if necessary, the redirect on it.
25 If there is a good faith basis to ask questions about
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1 whether a file in the VOC format identified on Government
2 Exhibit 1300 is, in fact, accurately identified, that would be
3 a reasonable subject for cross. It goes -- it goes beyond the
4 motion in limine which said, Look, essentially, we have 200 to
5 250 calls which we're attempting to authenticate. They've been
6 recorded on the trial DVD in the way in which it's been
7 explained. Going into the production of 85,000 calls in
8 various other formats over a period of time and glitches in
9 that production would be unnecessarily confusing and a waste of
10 time.
11 These questions appear to be directed directly to the
12 trial DVD, items identified on the trial DVD in the same format
13 as the trial DVD, and frankly, it doesn't seem to me to be a
14 big deal. If in fact the facts are whichever way the parties
15 posit, whether there was another file with the same number or
16 whether this number on this DVD may refer to another file name
17 and there is an explanation for that, that would normally be
18 something developed on cross and then by redirect. It doesn't
19 go into another format. It doesn't go into the production of
20 the 85,000 records and any gaps in that production. It relates
21 to the calls on Government Exhibit 1300.
22 MS. BAKER: Your Honor, with all due respect, it did
23 go into the production of the 85,000 files in the VOC format,
24 because when they were produced in the VOC format, they were
25 retrieved en masse. They were renamed through the running of a
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1 software application because, as I think Agent Kerns testified
2 when he was here last time, on the magneto optical disks, the
3 files are merely named sequential numbers, all on one MO disk.
4 So on one particular MO you have files named from 1 through --
5 I don't know, whatever thousand. So for purposes of people who
6 are using them, being able to recognize which files are which,
7 this software script was run on each one, which was supposed to
8 take the signal-related information from inside the header and
9 generate this file name that had meaningful information in it.
10 When the 85,000 files were produced en masse in
11 pretrial discovery in any format, including when they were
12 produced the last time in VOC format, because of the very large
13 number of files all being produced together, nobody did
14 anything to check individual files to ensure that each file's
15 newly-generated file name matched the signal-related
16 information, whereas in this much, much smaller universe of
17 files that are on the trial DVD's, that is not the case, and,
18 in fact, there has been a determination that these file names
19 match the signal-related information in each file.
20 So it does bring up the issue of the production of the
21 85,000 files, and how that was done and how the doing of that
22 differed from the preparation of this disk.
23 THE COURT: But that doesn't -- Agent Kerns has
24 already testified to the existence of 85,000 files, and I
25 believe has testified to the production to the defendants. If
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1 not, it would be -- if defendants open it up, it's something to
2 be -- that could be responded to. He already said the reasons
3 for retrieving 85,000 files was for production purposes, unlike
4 cross-examination directed to the production of the 85,000
5 files and gaps in the production or problems with the
6 production, and the parties can ask themselves if there's a
7 good faith basis for it in view of everything that they've
8 heard, but it goes to a very limited subject, which is the
9 naming of a specific file on Government Exhibit 1300, how that
10 came about, and what the basis for its authenticity is for
11 that. And if there's a question raised with respect to the
12 naming of that file, it will be subject to explanation as to
13 why that's true. And it doesn't seem to me at all to raise the
14 kinds of general issues that I decided on the motion in limine.
15 You can consider whether there's a good faith basis.
16 I'll take 10 minutes.
17 (Recess)
18
19
20
21
22
23
24
25
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47JSSAT3
1 (PAGES 3822-3823 SEALED)
2 (In open court; jury not present)
3 MS. BAKER: Your Honor, shall I bring in the witness?
4 THE COURT: Yes, thank you.
5 All right, let's bring in the jury.
6 (In open court; jury present)
7 THE COURT: Please be seated all.
8 THE COURT: The government can call its next witness.
9 MS. BAKER: The government recalls Scott Kerns.
10 SCOTT L. KERNS - recalled
11 THE CLERK: Agent Kerns, having been previously sworn
12 the government reminds you you are still under oath.
13 THE WITNESS: I understand.
14 THE COURT: Ms. Baker, you may continue.
15 MS. BAKER: Thank you, your Honor.
16 MS. BAKER: May I approach the witness?
17 THE COURT: Yes.
18 DIRECT EXAMINATION
19 BY MS. BAKER:
20 Q. Good morning, Agent Kerns. Let me remind you again to
21 please try to speak into the microphone so everyone will be
22 able to hear you.
23 I have handed you two items that are marked for
24 identification as Government Exhibits 1300 and 1301. Let me
25 ask you to look first please at Government Exhibit 1300.
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47JSSAT1 Kerns - direct
1 Do you recognize that item?
2 A. Yes, I do.
3 Q. What is it?
4 A. This is a DVD that I created for the U.S. Attorney's
5 Office.
6 Q. How are you able to recognize it as a DVD that you created?
7 A. By my handwriting, signature, and the date on which I
8 created the DVD.
9 Q. In what color writing does that information appear on the
10 DVD?
11 A. It's in black at the bottom.
12 Q. What is on that DVD?
13 A. There are telephone calls that the U.S. Attorney's Office
14 asked me to put on for this trial.
15 Q. I want to ask you about the process that you went through
16 to put those recordings on that DVD. Would it help you in
17 explaining that to refer to one of the diagrams that you used
18 during your previous testimony?
19 A. The one we used last Monday that had the servers, as well
20 as the process along, yes.
21 MS. BAKER: Your Honor, may I place Government Exhibit
22 1310A, which is already in evidence, on the ELMO and publish
23 it?
24 THE COURT: Yes.
25 Q. Agent Kerns, do you have 1310A now on the screen in front
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1 of you?
2 A. Yes, I do.
3 Q. If you would by referring to Government Exhibit 1310A,
4 please explain to the jury the process you went through to make
5 the DVD which is marked as Government Exhibit 1300.
6 A. What I did was with 1300 some of the calls came off of the
7 5 servers that are listed at the top. The majority of the
8 calls for this particular DVD came off of the MOs which are
9 listed next to position one. From there whether it was servers
10 or whether it was the MOs, I would copy it to position number
11 2, which was the computer that had a DVD burner on it, at which
12 point I would then burn the DVD.
13 Q. When you copied the files from magneto optical disks to the
14 computer shown in computer number 2, were those exact copies?
15 A. Yes, they were.
16 Q. When you copied files from the servers to the computer
17 shown in position number 2, were those exact copies?
18 A. Yes, they were.
19 Q. And then when you used computer number 2 to burn the DVD,
20 were those exact copies from the computer burned onto the DVD?
21 A. Yes, they were.
22 Q. Now, the DVD marked as Government Exhibit 1300, is that DVD
23 the outcome, the output of that third stage in the process, the
24 DVD represented in the diagram in position number 3?
25 A. Position 3, yes.
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47JSSAT1 Kerns - direct
1 Q. Now, for the particular calls that are on the DVD marked as
2 Government Exhibit 1300, were some of those calls originally on
3 electromagnetic tape?
4 A. Yes, they were.
5 Q. And were those calls put onto MO disks through the same
6 conversion process that you described in your testimony last
7 time?
8 A. The same process, yes.
9 MS. BAKER: Your Honor, may I approach the witness
10 again?
11 THE COURT: Yes.
12 Q. Agent Kerns, I have handed you two documents marked for
13 identification as Government Exhibits 1300L and 1301L. Let me
14 ask you to look first at Government Exhibit 1300L. Do you
15 recognize that document?
16 A. Yes, I do.
17 Q. What is it?
18 A. This is a printout of all the files that are listed on
19 Government Exhibit 1300.
20 Q. And how many files is that altogether?
21 A. There are 47 on this particular DVD and 47 listed on
22 Government Exhibit 1300L.
23 Q. Before you came to court, did you compare the actual
24 contents of the DVD marked as Government Exhibit 1300 with the
25 list of files on Government Exhibit 1300L?
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47JSSAT1 Kerns - direct
1 A. Yes, I did.
2 Q. Did they match?
3 A. Yes, they did.
4 Q. Did you indicate that somehow on the DVD and on the list?
5 A. Yes, I did.
6 Q. What did you do?
7 A. On the DVD I initialed and dated it in red right up at the
8 top here, and with 1300L I just signed my name and dated it as
9 well.
10 Q. Let me ask you to set aside 1300 and 1300L for now and turn
11 to the DVD marked as Government Exhibit 1301. Do you recognize
12 Government Exhibit 1301?
13 A. Yes, I do.
14 Q. What is it?
15 A. This is what I labeled as Sattar Trial DVD number 3, once
16 again calls requested by the U.S. Attorney's Office.
17 Q. Did you make that DVD? Did you put the calls on there?
18 A. Yes, I did.
19 Q. Referring again to the diagram which is Government Exhibit
20 1310A, would you explain to the jury the process that you went
21 through to create that third DVD which is marked as 1301?
22 A. On this one there is -- there are only a few calls and I
23 used the MO disks. Whether they were from the conversion, from
24 the Lockheed Martin system or the Raytheon system, I just
25 copied them straight across. I did not use the servers for
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1 this particular operation. I copied it to the computer that
2 has a DVD burner at which point then I burned the DVD.
3 Q. And, again, when you were copying the files from the MO
4 disks onto the computer with the DVD burner, were those exact
5 copies of the recordings?
6 A. Yes, they were.
7 Q. And when you then copied the files onto the DVD, burned the
8 DVD, were those, again, exact copies of the recordings?
9 A. Yes, they were.
10 Q. Let me ask you to look please at the document marked as
11 Government Exhibit 1301L. Do you recognize that document?
12 A. Yes, I do.
13 Q. What is that?
14 A. This is a printout of the 12 files that are currently on
15 Government Exhibit 1301.
16 Q. Before you came to court, did you compare the list of files
17 with the actual files that are on Government Exhibit 1301, the
18 DVD?
19 A. Yes, I did.
20 Q. Did they match?
21 A. Yes, they did.
22 Q. And did you indicate that somehow?
23 A. Yes, I did. The same process as with Government Exhibit
24 1300 in red I put my initials and the date, and on the piece of
25 paper I signed it and dated it right on the Government Exhibit.
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1 Q. Turning back to the DVD for the moment, I don't remember if
2 I asked you this: Are your initials and the date on the DVD,
3 Government Exhibit 1301, twice?
4 A. Yes.
5 Q. They are there in black once and in red once?
6 A. Yes.
7 Q. What do your initials and the date in black signify?
8 A. That, along with the title, is the date that I actually
9 burned this DVD.
10 Q. On each of the instances when you burned a DVD, 1300 on one
11 occasion, and then 1301 on another occasion, did you burn at
12 the same time multiple copies or duplicate originals of those
13 DVDs at each occasion?
14 A. Yes, I did.
15 Q. Agent Kerns, in the process of preparing the second trial
16 DVD, the one that is marked as Government Exhibit 1300, did you
17 do something that allowed you to determine what the last
18 modified date of each file represents? That is something you
19 were asked about during your previous testimony.
20 A. Yes, I did.
21 Q. Could you explain what you did and what that caused you to
22 figure out about what "last modified date" means?
23 A. Sure.
24 Can I go back to the Government exhibit and just look
25 at that real quick? Because I need the date.
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47JSSAT1 Kerns - direct
1 Q. Yes.
2 A. On one file based on the questioning from last Monday, what
3 I did was I was curious on the last modified date because I
4 didn't know exactly how that date came about. One of the calls
5 on here on page number 2, I found the original MOs and what I
6 did was I copied it from position number 1 to position number
7 2. When I did that, it gave me the last modified date of the
8 date and time on that computer when it was copied. So that was
9 how that last modified date came about.
10 Q. So based on that work that you did and that observation
11 that you made, what do you now understand the last modified
12 date of each file to represent as far as which stage in the
13 process for each file it corresponds to?
14 A. It is between stages 1 and 2, moving from the UNIX system
15 where I am searching for the file and actually copying once I
16 find it, copying that file to number 2, which I stated
17 previously was a Windows computer, and it put in the last
18 modified date as it appeared on that computer.
19 Q. And just so that the record is clear, when you were copying
20 any file on any one of the trial DVDs from the MO using that
21 UNIX computer system to the Windows computer with the DVD
22 burner, did you in any way modify the audio recording inside
23 any file?
24 A. No.
25 Q. Did you in any way modify the nonaudio signal-related
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1 information inside any file?
2 A. No.
3 MS. BAKER: Your Honor, may I have a minute to confer?
4 THE COURT: Yes.
5 MS. BAKER: Your Honor, at this time the government
6 offers the two DVDs, which are Government Exhibits 1300 and
7 1301, and specifically each of the audio files on each of the
8 DVDs and the number of each audio file, the Government exhibit
9 number is shown on the corresponding list. The lists are 1300L
10 and 1301L. We also offer the lists.
11 And as to each of the audio files themselves as
12 previously, the government specifically offers the
13 signal-related information contained in each file and those
14 portions of the audio in each file that correspond to the
15 excerpted transcripts that the government will use at trial.
16 THE COURT: All right.
17 MS. BAKER: And I have no further questions of the
18 witness.
19 THE COURT: All right.
20 MR. TIGAR: May I inquire, your Honor?
21 THE COURT: Yes.
22 MR. TIGAR: May I please have 1310A.
23 Thank you.
24 CROSS EXAMINATION
25 BY MR. TIGAR:
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1 Q. Agent Kerns, I am not going to go back over everything that
2 we talked about before, but I wanted to ask, first, do you over
3 there in your office have a program called Gold Wave?
4 A. Yes, we do.
5 Q. And what is your understanding of what Gold Wave does?
6 A. It's an audio player.
7 Q. Do you understand that you can edit audio files on Gold
8 Wave?
9 MS. BAKER: Objection.
10 THE COURT: Basis?
11 MS. BAKER: It assumes a fact not in evidence.
12 THE COURT: Overruled.
13 Q. I am not trying to trap you, sir.
14 Do you understand whether or not you can? I guess
15 that is the deal.
16 A. I have never done any editing on Gold Wave. I use it
17 strictly to play audio.
18 Q. Now, you testified here about this signal-related
19 information, correct?
20 A. That is correct.
21 Q. Now, the Lockheed Martin files, that is where this began,
22 correct?
23 A. For some of them, yes.
24 Q. For some of these recordings.
25 MR. TIGAR: May I show him 1310A, your Honor?
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47JSSAT3 Kerns - cross
1 THE COURT: Yes.
2 Q. And we have heard before that from the hard disk somebody
3 made these electromagnetic tapes, correct?
4 A. That is correct.
5 Q. And then eventually the information winds through the
6 various stages that are shown on this exhibit, correct?
7 A. Correct.
8 Q. Now, for your work today, the 1300 and 1301, you copied
9 some files from a server and some from MO disks, correct?
10 A. Correct.
11 Q. And what was the difference? Why some from a server and
12 why some from the MO disks?
13 A. Due to the fact that I had some of the information from
14 previous discovery on those servers, which I stated in prior
15 testimony that in DVD number 1 a good amount of it came from
16 the servers. However, it became easier just to go back to the
17 MOs and do it that way because I stated before the servers, the
18 conductivity lines had to be established in order to copy the
19 information.
20 Q. The what?
21 A. The conductivity lines. These are stand-alone. The
22 servers were stand-alone, which means they are not connected to
23 anything other than themselves. And I needed to connect them,
24 which is why I drew the lines, from there to 2. The
25 conductivity already existed from 1 to 2. So it was just much
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1 easier to do it that way.
2 Q. By conductivity, you mean one wire stuck into one machine
3 and one wire stuck into another machine?
4 A. Correct.
5 Q. All right.
6 Now, at what point in this process did these files get
7 a name?
8 A. Once they came to computer number 2.
9 Q. And that is this computer hard drive here right by my
10 finger, correct?
11 A. That is correct.
12 Q. And the name you chose was a 4-digit year, correct?
13 A. Correct.
14 Q. Would you like to have a copy of the exhibit to look at?
15 A. Sure.
16 MR. TIGAR: May I show him the exhibit, your Honor?
17 THE COURT: Yes.
18 Q. This is not in evidence yet, Agent, but that is a copy --
19 oh, you have the original one, all right. If you will look at
20 yours, I will look at mine.
21 There is a 4-digit year, correct?
22 A. Correct.
23 Q. And then a date, such as 0702, correct?
24 A. Correct.
25 Q. An underscore, and then is that a time of day?
SOUTHERN DISTRICT REPORTERS, P.C.
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1 A. Yes, it is.
2 Q. And then the next thing is a telephone number, correct?
3 A. Correct.
4 Q. Now, for the files that were done on the Lockheed Martin
5 system, where did you get that information for the date and
6 time?
7 A. Well, for the Lockheed Martin system after they were
8 converted they were converted into VOC and that information was
9 taken out of the VOC header.
10 Q. Out of the VOC header?
11 A. Yes.
12 Q. Now in the Lockheed Martin format, the date and time
13 information is different than this, isn't it?
14 A. Yes, it is.
15 Q. In the Lockheed Martin format they don't have an actual day
16 of the month in there, do they?
17 A. The one call that I looked at, no, it was not.
18 Q. And you say the one call that you looked at. So you didn't
19 look at all the calls?
20 A. No.
21 Q. Well, if it didn't have the actual day of the month in the
22 Lockheed Martin file, how did you get the day of the month to
23 put in here?
24 A. The conversion process, as I stated previously and you
25 questioned me on, I do not know how the SRI data was pulled
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 from the Lockheed Martin during the conversion and was put in
2 the header once it was converted. As to the exact process, I
3 don't know.
4 Q. But you have looked at Lockheed Martin files, correct?
5 A. In their original format?
6 Q. Yes, sir.
7 A. One, yes.
8 Q. One, okay.
9 Now, is that one of the ones that you gave to us on a
10 diskette?
11 A. No, I gave it to you on a CD.
12 Q. I call it a DVD, a diskette. It's one of the ones you gave
13 to us, correct?
14 A. That is correct.
15 MR. TIGAR: May I approach, your Honor?
16 THE COURT: Yes.
17 MS. BAKER: Your Honor, may I also approach so I will
18 see what he is showing to the witness?
19 THE COURT: All right.
20 MR. TIGAR: Yes, please.
21 Q. This is the Lockheed Martin DVD you made, right?
22 A. It's the CD, yes. That is the one I created.
23 Q. So we are going to put it in here and now I have loaded the
24 directory, correct?
25 A. Correct. You are looking at it in I believe it's "My
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Computer". So it shows all the files that are there.
2 Q. Do you remember which one you opened to look at?
3 A. No, I don't.
4 Q. Well, can we just do one?
5 A. Sure, open any one of them.
6 Q. Open any one, okay.
7 We are opening it in Notepad, correct?
8 A. Correct.
9 Q. Now, what the Notepad is going to do is give us only the
10 hexidecimal information and not the audio, correct?
11 A. It gives you text, correct, or what it says, what it can
12 determine is text within the file.
13 Q. Is that also known as hexidecimal?
14 A. I don't really know. I don't think I have ever referred to
15 it as that.
16 Q. Okay. Well, it's text, right?
17 A. It's text.
18 Q. And we can read it?
19 A. We can read it.
20 Q. All right.
21 And here we can read a phone number, correct?
22 A. That is correct.
23 Q. And then is the next number a year? What do you understand
24 that to mean there?
25 A. Let's see here. I just need to be able to see it better.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 When we looked at this file or when I looked at the
2 file and we went through the first part of it from 1 it states
3 the numbers, the way they go are 17184423513, which I
4 understand is the telephone number.
5 Q. Right. In fact, then, when somebody named the file, they
6 gave it a file name that included that information, correct?
7 A. During the conversion process, correct. That is how it
8 would work.
9 The next two numbers, 99, is what is supposed to be
10 the year of that particular call.
11 Q. Now, how do you know that?
12 A. Because that is how -- based on my just looking at it I
13 don't know for a fact but that is what I understand how these
14 were named.
15 Q. My question is how do you understand that? Where did you
16 learn it?
17 A. I just looked at the file and said, oh, this is how it's
18 named.
19 Q. It says 99 so somebody then made the 99 into a 1999,
20 correct?
21 A. That is correct.
22 Q. Who did that?
23 A. That was whoever built the conversion program.
24 Q. Not you?
25 A. No, not me.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Q. Now, then, the next thing we see in the file name is a
2 0126, et cetera, right?
3 A. Correct.
4 Q. And the file name, what does that mean?
5 A. Are you referring to here?
6 Q. Looking up here.
7 A. Up here, this would be 0126, which would be January 26.
8 Q. Of 1999?
9 A. That is correct.
10 Q. And the next information is 054634, 5 hours, 46 minutes, 34
11 seconds?
12 A. 05 o'clock in the morning, correct.
13 Q. 05.
14 A. 05, correct.
15 Q. Like military time?
16 A. It is military time.
17 Q. Now, where is the January 26 information?
18 A. It's right after the 99. It says 026.
19 Q. 026. So your interpretation is it just counts the number
20 of days since the beginning of the year?
21 A. Julian date, that is correct.
22 Q. So that information somebody used to make this file header?
23 A. That is correct.
24 Q. And that file name with a different suffix is the same file
25 name that is on Exhibit 1300 if that call is on there, correct?
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47JSSAT3 Kerns - cross
1 A. That is correct.
2 Q. Now, was there a computer program that assigned these file
3 names with these dates or did a human have to do something?
4 A. Are you referring to these particular DVDs?
5 Q. Yes.
6 A. On these particular DVDs I actually went through and opened
7 up the file in Notepad and then typed out the file name.
8 Q. So you did it manually, correct?
9 A. I did it manually for these two DVDs, that is correct.
10 Q. So you tell me you opened -- what file did you open in
11 Notepad?
12 A. The VOC file.
13 Q. And then you gave it a file name, correct?
14 A. Then I renamed that file to the SRI data, correct.
15 Q. What name did it have before?
16 A. These, as I believe I testified earlier, are sequentially
17 numbered on their MOs. So, in fact, I believe it is Government
18 Exhibit 1301 is a good example. One DVD had one of the calls
19 as 000026 .VOC, which I copied over to the computer. I went to
20 another MO looking for a particular call requested of me. When
21 I found the call it was listed on that MO as 0000026 .VOC. If
22 I copied that file it would overwrite on the computer. So what
23 I had to do was rename the first one properly, then I copied
24 it, then I renamed it so I wouldn't overwrite it. That is why
25 we had to rename all the files other than the fact that you
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 would have no idea what you were looking at unless you opened
2 every single file in Notepad.
3 Q. So it is the case that the FBI in your office has the
4 ability to rename files?
5 A. Sure, yes.
6 Q. And do you also have the ability to go in and change the
7 text information in the file?
8 A. If somebody wanted to do that, yes, because it is text.
9 They could change the text.
10 Q. In other words, all you would have to do is if you want to
11 change the text is you put your MO disk or you open it up in
12 the hard drive and open it up in a program like Notepad,
13 correct?
14 A. Once they moved it to a Windows computer, sure, they can do
15 that.
16 Q. Now, the computer on which you did these things here, is
17 that computer number 2?
18 A. That is correct.
19 Q. What platform was that?
20 A. It's a Windows platform.
21 Q. And are the servers Windows platform too?
22 A. No, sir, they are UNIX.
23 Q. So some of the files on 1300 are in a UNIX platform and
24 some of the files in 1300 come from UNIX servers and some from
25 Windows, right?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 A. No, everything came -- position number 1, that system is
2 also UNIX. That is the operating system that we use for the
3 Raytheon system. So what we did was everything was copied over
4 but I copied it to a Windows computer because that is where the
5 DVD burner was. But the servers and position number 1, all
6 those systems are UNIX.
7 Q. The server up in position -- you say where you wrote the
8 word "servers", correct?
9 A. Right.
10 Q. Okay.
11 The files that are on 1300 that came from the servers,
12 those files on the servers were in a Windows environment?
13 A. No, the server is UNIX.
14 Q. But the DVD that is in front of you, 1300, all the calls
15 are in Windows, correct?
16 A. Yes, because that computer is Windows, that is correct.
17 Q. That meant then that you had to convert, did you not, from
18 a UNIX-based VOC system to a Windows VOC-based system?
19 A. I don't know. You had mentioned that previously. I don't
20 know a difference between UNIX VOC and Windows VOC. I never
21 heard that before. I don't know if that is --
22 Q. I am only asking a question.
23 A. I am going from one operating system to another operating
24 system, that is correct.
25 Q. I am not trying to testify here. I don't know. But you
SOUTHERN DISTRICT REPORTERS, P.C.
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1 did say you went from one system to another?
2 A. Absolutely.
3 Q. Do you know whether or not you can open up in the UNIX
4 environment with a text editor, such as Notepad or the
5 equivalent, and edit text?
6 A. It does have a text editor function. I have never tried to
7 do it. But if it had a text editor function I am sure you can
8 probably open the file in a text format and edit text.
9 Q. All right, sir.
10 Now, would you take a look please at 1300 and do you
11 see on there a file name 1990702 underscore 161314?
12 A. Yes.
13 Q. All right, sir.
14 MR. TIGAR: May I approach, your Honor?
15 THE COURT: Yes.
16 MS. BAKER: Your Honor, may I also approach?
17 THE COURT: Yes.
18 Q. Now, would you hand me -- oh, here is 1300, correct?
19 A. Yes.
20 Q. I put 1300 in there. Now we are going to go into Windows
21 Explorer and is that the file I was just asking you about,
22 0702?
23 A. Yes, it is.
24 Q. All right. Let's see what happens. We have opened --
25 let's look here. It's a big file.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 A. It takes a while to open the big files in a text editor.
2 Q. There we go.
3 Now, I am going to maximize that screen, all right?
4 A. Okay.
5 Q. And I want you to look here. It starts with various
6 information, correct?
7 A. Correct.
8 Q. And this information is more extensive, is it not, than the
9 header information on the equivalent Lockheed Martin file?
10 A. In this format, I didn't go through the whole Lockheed
11 Martin but, yes, this seems to be more than -- that is also due
12 to the fact that it was converted to VOC and this information
13 is necessary.
14 Q. In the Lockheed Martin file we looked at the header
15 information was basically the date in some specific format and
16 then the time, correct?
17 A. Right. And there was other information as in case file and
18 some of the other information.
19 Q. All right.
20 Now, I hit "control end." Now, you notice here at the
21 end of the file there are lines and lines and lines of footer
22 information, correct?
23 A. Yes.
24 Q. Now, do you know whether or not in a Lockheed Martin file
25 in the DDR format there is footer information like this?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 A. I don't know.
2 Q. Well, I am not going to load and unload this. We will look
3 at that in a minute. But let's just look at -- for example,
4 this says creation time, right?
5 A. Yes, it does.
6 Q. Do you see a date there?
7 A. Yes, I do.
8 Q. And what year is that?
9 A. It says 1970.
10 Q. And then it says V start time, correct?
11 A. Correct.
12 Q. And that is a 1970 year also, right?
13 A. Yes, it does.
14 Q. Do you know what that means?
15 A. No, I don't.
16 Q. Okay. So you don't know why there would be a 1970 date in
17 a file about a 1996 conversation, correct?
18 A. I don't know.
19 Q. I am going to take the exhibit out.
20 THE COURT: Are we talking 1996 or '99?
21 MR. TIGAR: 1999.
22 Thank you very much, your Honor.
23 Q. Amending it to the year you don't know that either, right?
24 A. Right.
25 MR. TIGAR: Thank you, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Q. Now, do you know how that information that I showed you at
2 the end of that file got in there?
3 A. No, I don't.
4 Q. Do you know whether a human put it in or whether the
5 computer generated it itself?
6 A. I don't know.
7 Q. How many of the files, audio files on GX 1300, did you open
8 and listen to?
9 A. I don't know. I mean, the only time I ever opened files
10 was if I needed to make sure that the DVD worked or if a
11 linguist had a question. But I don't sit there and listen to
12 this.
13 Q. And with respect to all of the Lockheed Martin original
14 files that are on 1300 and 1301, is it your testimony that you
15 supervised the conversion from A to 1? That is, from the
16 electromagnetic tape to the magneto optical disk?
17 A. Correct.
18 Q. And to do that you used a program, correct?
19 A. That is correct.
20 Q. That is a conversion program?
21 A. That is correct.
22 Q. Now, that conversion program -- withdrawn.
23 The files in the Lockheed Martin format are DDR files,
24 correct?
25 A. I don't know where that name came from. That was just when
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 it was provided to me by the engineers that that was what they
2 had named them. I don't know what that means.
3 Q. Now, a little while ago we looked at the Lockheed Martin
4 diskette, correct?
5 A. Correct.
6 Q. That you provided. Is it your testimony that that diskette
7 was prepared by engineers and not by you?
8 A. Oh, I was on my honeymoon. It was not prepared by me.
9 Q. All right.
10 When did you become aware that it had been prepared?
11 A. Let me see, I testified on the 12th. On the 11th I came in
12 to the office after returning and I spoke to the engineers that
13 were going to provide this that they were going to make a copy
14 from -- and they had a list of calls from the U.S. Attorney's
15 Office and that they were going to provide that to me, which I
16 was then going to provide to the U.S. Attorney's Office.
17 Q. And that was why you wrote on it and signed it, correct?
18 A. Correct. What you have is a copy of what I made, which I
19 believe I did -- I would have to look at the date on it but I
20 was here all day on Monday. I believe I did it either on
21 Monday or Tuesday of last week.
22 Q. With regard to the Lockheed Martin conversion of the
23 earlier files, that is, when they were originally placed on the
24 MO disks for eventual use in this trial, did the engineers do
25 that conversion or did you?
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47JSSAT3 Kerns - cross
1 A. No, I did not do it, neither did the engineers. They
2 provided the program and technical personnel in our office were
3 the ones doing that over a period of time.
4 Q. Who provided the program?
5 A. It was provided to us from ERF, from the engineering
6 research facility down in Quantico.
7 Q. Did you check the bytes in, bytes out of the conversion?
8 A. No, I did not.
9 Q. Do you know as you sit there today what proportion or
10 percentage of VOC bytes is to DDR bytes?
11 A. No, I don't.
12 Q. And that was something that the Quantico people did, right?
13 A. With respect to what?
14 Q. They wrote the programs.
15 A. Yes, they are the ones that created the program.
16 Q. Now, you said a few minutes ago that you had listened to a
17 call or some calls, right?
18 A. Yes.
19 Q. Now, in your last appearance here you said you were
20 concerned about file degradation, correct?
21 A. On --
22 Q. On some EMT.
23 A. On some of the tapes, yes, that is correct.
24 Q. Electromagnetic tapes, right.
25 And you told us what you did to deal with that
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 problem, correct?
2 A. Correct.
3 Q. Now, did you listen to all of the audio files to see
4 whether or not there were problems in the audio that might have
5 been due to tape degradation?
6 A. No.
7 (Continued on next page)
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SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 Kerns - cross
1 BY MR. TIGAR:
2 Q. Did you listen to any files to see if there were problems
3 that might have been due to calls being cut off?
4 A. No.
5 Q. Have you looked at transcripts prepared by the government,
6 either the FBI or the U.S. Attorney's office in this case?
7 A. No.
8 Q. May I approach, your Honor?
9 THE COURT: Yes.
10 Q. I'm going to show you, Sir, what has been received in
11 evidence as Government 1002X. You're familiar with that sort
12 of format, correct?
13 A. Yes. This is, as I testified earlier, this is what a
14 technical cut looks like, as I was talking with regard to
15 pertinent phone calls, when someone actually writes up a call.
16 MR. TIGAR: May I show the witness 1002X, your Honor,
17 on the screen?
18 THE COURT: Yes.
19 Q. This has been received in evidence, Sir, and you'll notice
20 that there's some information here at the top, correct?
21 A. Correct.
22 Q. Can you help us out? What's the monitor number?
23 MS. BAKER: Objection. Relevance; lack of personal
24 knowledge.
25 Q. If you know.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 Kerns - cross
1 THE COURT: If you know.
2 A. No, I don't know.
3 Q. Call direction, is that something you would expect to find
4 in a header or footer?
5 A. It may be in there, I'd have to actually look at the header
6 or footer to see if the call direction is maintained. Whether
7 it's in the actual text or whether it's in the audio, I don't
8 know.
9 Q. Now, call direction is something that's important, correct,
10 In an investigation?
11 A. Yes.
12 Q. So if it's unknown, you like to know it, right?
13 MS. BAKER: Objection.
14 THE COURT: Sustained.
15 MR. TIGAR: I'm sorry, your Honor?
16 THE COURT: I said sustained.
17 MR. TIGAR: Thank you, your Honor.
18 Q. Now, a couple more questions. Here's Line 2, phone
19 ringing. It says UI. That's unintelligible, right?
20 A. That's my understanding, yes.
21 Q. It's my understanding nobody asked you to go back to those
22 original files and see why there were these unintelligibles?
23 A. No.
24 Q. Do you know if anybody in the Federal Bureau of
25 Investigation was asked to go back into those original
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 Kerns - cross
1 electromagnetic tapes with which you were dealing and try to
2 see why there were these unintelligibles in there?
3 A. No.
4 Q. Now, at the end of 1002X, the last words at Line 11
5 are "recording stopped". Do you see that?
6 A. Yes, I do.
7 Q. Do you know what that means?
8 A. It means that whoever wrote that, the recording stopped,
9 and they annotated that.
10 Q. Now, based on your knowledge of the call, do you know
11 whether that means the machine stopped recording or what that
12 means in terms of the investigation?
13 MS. BAKER: Objection. Lack of personal knowledge.
14 THE COURT: If you know.
15 A. I have no idea.
16 Q. But did anyone ask you to go into these calls where the
17 recording stopped and look back at the electromagnetic tapes
18 and see why the calls stopped?
19 A. No.
20 Q. Do you know how many calls there are that are being used in
21 this case in which a call stops and then somebody picks it up
22 again later?
23 A. No, I don't.
24 Q. That was not part of your job?
25 A. No. The only thing that we worked on was converting tapes
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1 and turning everything over to the U.S. Attorney's office to be
2 turned over to defense.
3 Q. Now, have you worked with the U.S. Attorney's office to
4 prepare the tapes for trial?
5 A. When you say --
6 Q. Have you played -- excuse me, bad word. Have you played
7 DVDs or CDs on U.S. Attorney's office's machines?
8 A. Once they loaded GoldWave and I showed them how to
9 basically use it.
10 Q. The U.S. Attorney's office has GoldWave also?
11 A. Yes, they do. It's the only way you can listen to these.
12 Q. Have you ever read the instruction manual on GoldWave?
13 A. I believe I've used the Help on it once or twice, but, no,
14 I have not.
15 MR. TIGAR: May I have a moment, please, your Honor?
16 THE COURT: Yes.
17 (Off the record)
18 MR. TIGAR: Your Honor, there is a matter about which
19 I may wish to inquire of the witness. However, I would need to
20 get a diskette that has arrived and look at it. I don't want
21 to --
22 THE COURT: Okay.
23 MR. TIGAR: I'd ask your Honor's assistance.
24 THE COURT: We'll take a 10-minute break. I don't
25 like to break for lunch at this point, ladies and gentlemen,
SOUTHERN DISTRICT REPORTERS, P.C.
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1 because I know your lunch comes at a certain time. So we'll
2 take a 10-minute break. If it goes on more time so that you
3 run into your lunch hour, I hear that your lunch has arrived,
4 we'll continue it into the lunch hour. But otherwise, we'll
5 just take a 10-minute break. It will be a good time to
6 stretch. Please remember my continuing instructions not to
7 talk about the case.
8 All right. All rise. Follow Mr. Fletcher to the jury
9 room.
10 (The jury exits the courtroom)
11 THE COURT: All right. Take 10 minutes. Agent Kerns,
12 you can step down. You're still on cross-examination, so
13 please don't talk to anyone about your testimony.
14 THE WITNESS: Yes, your Honor.
15 (Recess)
16 (In open court; jury not present)
17 THE COURT: Please be seated, all. Are we ready to
18 proceed?
19 MR. TIGAR: Yes, your Honor.
20 THE COURT: All right. Let's bring in the jury.
21 (Jury enters the courtroom)
22 (In open court)
23 THE COURT: Please be seated, all.
24 Agent Kerns is still on the stand. Mr. Fletcher?
25 DEPUTY CLERK: Agent Kerns, you understand you are
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1 still under oath.
2 THE WITNESS: I understand.
3 THE COURT: Mr. Tigar?
4 MR. TIGAR: I have no further questions at this time.
5 THE COURT: All right. Ms. Baker, you may examine.
6 MS. BAKER: I'm sorry, your Honor, I didn't hear you.
7 THE COURT: I said, you may examine.
8 MS. BAKER: Thank you.
9 REDIRECT EXAMINATION
10 BY MS. BAKER:
11 Q. Agent Kerns, during cross-examination, Mr. Tigar asked you
12 some questions about the information that's in the headers of
13 the Lockheed Martin files in their original format before
14 conversion. Do you remember those questions?
15 A. Yes, I do.
16 Q. And you had testified that you had only looked at one
17 example of that file in its original format?
18 A. That's correct.
19 Q. Mr. Tigar was asking you which, if any, information from
20 the header of the file in its original format ended up in the
21 header of the VOC files after the conversion. Do you remember
22 those questions?
23 A. Yes, I do.
24 Q. And the way Mr. Tigar was asking his questions, he was
25 asking you whether somebody used --
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1 MR. TIGAR: Excuse me, your Honor. "The way Mr. Tigar
2 was asking --"
3 THE COURT: Rephrase.
4 BY MS. BAKER:
5 Q. You were asked whether somebody used certain information
6 from the original Lockheed Martin header to result in
7 information being the headers of the VOC files?
8 A. That's correct.
9 Q. You testified that you didn't personally -- you testified
10 previously that you didn't personally do any of the conversions
11 of the Lockheed Martin files to the VOC format, correct?
12 A. That's correct.
13 Q. But you were present while it was going on?
14 A. I was, from when I came onto the squad until this point,
15 yes, that's correct.
16 Q. From what you saw of that conversion process that the other
17 people were doing, was there any manual transferring of
18 particular header information from particular Lockheed Martin
19 files into VOC files, or was it an automated process?
20 A. Everything was automated.
21 Q. You were asked on cross-examination at one point whether it
22 would be possible, using a Windows computer, to change
23 signal-related information in the VOC files, which is
24 essentially the text in the files. Do you remember being asked
25 that?
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1 A. Yes.
2 Q. Did you personally at anytime change any signal-related
3 information in any file?
4 A. No.
5 Q. To your knowledge, did anyone else change any
6 signal-related information in any file?
7 A. No.
8 Q. Mr. Tigar asked you at one point whether there was -- I
9 think the word he used was conversion, when a VOC file was
10 copied from the UNIX operating system to the Windows system on
11 the computer in Position Number 2 on the diagram. Do you
12 remember that question?
13 A. Yes.
14 MS. BAKER: Your Honor, before I continue, may I put
15 the diagram back up, Government Exhibit 1310A?
16 THE COURT: Yes.
17 Q. So that we're clear, position Number 1 in the diagram,
18 which is where the magneto optical disks are read, is that the
19 UNIX operating system?
20 A. It runs on a UNIX platform, yes, it does.
21 Q. And then the computer shown in position Number 2, which is
22 the computer that was used to burn the DVDs, that's a Windows
23 operating system?
24 A. That's correct.
25 Q. Were you copying the VOC files from position Number 1 on
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1 the magneto optical disk to the Windows computer in position
2 Number 2?
3 A. Yes.
4 Q. To your knowledge, did that copying from the computer in
5 position Number 1 to the computer in position Number 2 cause
6 any change in the audio content of any of the files?
7 A. No.
8 Q. Did that copying from the computer in position Number 1 to
9 the computer in position Number 2 cause any change in the
10 signal-related information inside any of the files?
11 A. No.
12 MR. TIGAR: Personal knowledge.
13 THE COURT: Overruled.
14 Q. Mr. Tigar also asked you whether you know if the GoldWave
15 program or computer application is capable of editing audio
16 content in files. Did you ever use the GoldWave software or
17 application to edit or to fry to edit any of the files in this
18 case?
19 A. No.
20 Q. To your knowledge, did anyone else?
21 A. No.
22 MS. BAKER: Your Honor, may I have a minute?
23 THE COURT: Yes.
24 (Off the record)
25 MS. BAKER: Your Honor, if I might, I would like to
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1 approach the witness with a laptop computer and ask him to look
2 at the contents of one of the files on Government Exhibit 1300
3 for identification just as Mr. Tigar did.
4 THE COURT: All right. If you want to approach, also,
5 Mr. Tigar?
6 MR. TIGAR: I have a DVD here, your Honor. So unless
7 I need, to I'll just do it from here.
8 BY MS. BAKER:
9 Q. Agent Kerns, let me ask you to put in the DVD marked as
10 Government Exhibit 1300. And if you would use the my computer
11 application to pull up the list of the files that are on the
12 DVD. And then I'm going to ask you to use Notepad to look at
13 the signal-related information in the same file that Mr. Tigar
14 was asking you about, which is the first one.
15 A. (The witness complies)
16 Q. On cross-examination -- withdrawn.
17 Let me ask you to go down to the information at the
18 very end of the file which Mr. Tigar referred to as footer
19 information.
20 A. (The witness complies)
21 It's just taking a second to load.
22 Q. Agent Kerns, right now you have the file open in QuickView
23 Plus. Do you want to switch to Notepad? That might open it
24 more quickly.
25 A. I can.
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1 Q. Actually, before you go down to the bottom of the file,
2 once it opens, let me ask you about some of the information at
3 the top of the file.
4 A. Okay. There it is.
5 Q. And you're looking now at the nonaudio or the
6 signal-related information at the top of the file, correct?
7 A. That's correct.
8 Q. Which, if any, field or line of data in what you see on the
9 screen in front of you now indicates the start date and time of
10 the call?
11 A. There's a field three-quarters of the way down called
12 session start =, which is, I understand, as the start date and
13 time of this particular call.
14 Q. Let me ask you now to go down to the information at the end
15 of the file.
16 A. Okay.
17 Q. On cross-examination, Mr. Tigar asked you about two other
18 date fields that appear in the signal-related information or
19 nonaudio data at the end of the file. Do you know what either
20 of those fields represents?
21 A. No, I don't.
22 Q. To go back to the field at the top of the file, where it
23 showed session start?
24 A. Correct.
25 Q. If you would go back to that. Does the date and time shown
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1 in the session start field match the date and time reflected in
2 the file name of this particular audio file?
3 A. Yes, it does.
4 Q. You testified that you were the person who gave each of
5 these files on these DVDs the names that they have now?
6 A. Yes, DVD 2 and 3, I named all of them. And I did that
7 manually, not through a program.
8 Q. When you were naming the files, you were determining which
9 information to put in the name of each of the files, which
10 field of that signal-related information were you looking at to
11 know which information to put in the name of each file?
12 A. I would open up the file, just as we have here in Notepad.
13 I'd look for the session start, which is the first part of the
14 telephone call which is the date and the time. I would then
15 take that and rename the part of the file, and then I would
16 look up in the t num = field for the telephone number and add
17 in there, put VOC and then rename that file.
18 MS. BAKER: Thank you. No further questions.
19 THE COURT: All right. You may attend, limited to
20 redirect.
21 MR. TIGAR: Yes, of course.
22 THE COURT: Do you want that laptop?
23 MR. TIGAR: No, your Honor, this is fine.
24 THE COURT: All right.
25 RECROSS EXAMINATION
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1 BY MR. TIGAR:
2 Q. When you manually renamed the files, did you go back to the
3 Lockheed Martin files to check your work?
4 A. No.
5 Q. When the Lockheed Martin files were changed to VOC,
6 everything was automated, correct?
7 A. Yes, it was.
8 Q. Did you go back and manually check each file?
9 A. No.
10 Q. Did you manually check each one of the files that's on 1300
11 and 1301 against the Lockheed Martin files?
12 A. The original format? No.
13 Q. So is that basically the same automated process that you
14 used to produce the discovery files or not? The conversion?
15 A. The conversion, yes. All the discovery was done using the
16 conversion, that's correct.
17 Q. So the automated process used to produce these files was
18 the same as the automated process used for the discovery files,
19 correct?
20 MS. BAKER: Objection. Vague.
21 THE COURT: Rephrase.
22 Q. Is the automated process that you used to create -- to put
23 the files in 1300 and 1301 the same automated conversion
24 process that's used to convert Lockheed Martin files to VOC
25 files, for discovery?
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1 A. When you say "conversion", are you talking about converting
2 from a tape to an MO?
3 Q. Yes.
4 A. Okay, yes, then that absolutely was -- those -- those MO's
5 that were converted, those were the ones used, both in
6 discovery as well as in these DVDs.
7 Q. And did you participate in the creation or conversion of
8 the files that were produced in the discovery process?
9 A. I did. The DVDs and some of the CDs were created, more
10 DVDs and CDs, I was part of that process of burning those and
11 providing those to the U.S. Attorney's office, yes.
12 Q. But you didn't personally do the conversions, correct?
13 A. No, I did not do the conversions.
14 Q. You were asked on redirect examination whether you changed
15 any SRI's, correct?
16 A. That's correct.
17 Q. You were asked whether, to your knowledge, anybody had
18 changed SRIs, correct?
19 A. That's correct.
20 Q. You were asked whether you changed any audio files using
21 GoldWave, correct?
22 A. That's correct.
23 Q. And you were asked whether, to your knowledge, anybody did,
24 correct?
25 A. That's correct.
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1 Q. Is your testimony today that there is no audit trail file
2 in the New York field office that requires that if a file is
3 changed, that there be an audio record of that?
4 A. As I attested to previous, I don't believe we have anythi