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22 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 26 of the proceeding and Day 17 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/
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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 21, 2004
10 10:15 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.
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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
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all.
4 Please be seated.
5 All right, where will we be in terms of the
6 prospective proof from here?
7 MS. BAKER: Your Honor, it's a little difficult to
8 hear you. I think you asked what we are planning to do.
9 THE COURT: Yes.
10 MS. BAKER: We are planning to begin with Government
11 Exhibit 2029 and 2029T. That is that piece of Sattar search
12 evidence that we were going to turn to before we switched
13 yesterday afternoon to 508.
14 I am sorry, it's a different piece of Sattar search
15 evidence. So we are going to begin with the one piece of
16 Sattar search evidence and then --
17 THE COURT: 2020T and 2029?
18 MS. BAKER: No, just 2029 and its translation.
19 THE COURT: Okay.
20 MS. BAKER: And then we are going to have three
21 witnesses.
22 THE COURT: All right. 2029 is offered solely against
23 Mr. Sattar and solely with respect to his intent and state of
24 mind.
25 MR. TIGAR: Your Honor, one of the witnesses this
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1 morning I believe will be Agent Kerns and I needed to raise a
2 matter or wanted to raise a matter with your Honor.
3 Last night at 7:34 p.m. we received an FBI memorandum
4 which was tendered to us in connection with the proposed
5 testimony of an FBI audio specialist, Agent Losinski, or Mr.
6 Losinski, who will be here.
7 Your Honor will recall that with respect to Exhibit
8 1015, which is a DVD now in evidence over our objection
9 containing one VOC file conversation, that I asked Agent Kerns
10 on his first appearance whether or not he listened to
11 conversations. He said he listened to some. And then he said
12 that if the language specialist, and I am paraphrasing,
13 couldn't hear it or there was something they thought was wrong,
14 they would ask to see if it was a technical problem.
15 And you are talking about the language specialist
16 asking you about technical problems, correct? Yes.
17 On redirect, Ms. Baker said, "To your knowledge, were
18 any calls on the trial DVDs I showed you earlier, Government
19 Exhibits 1000, 1015 and 1300, affected by any accident or
20 technical problems?"
21 "A. Not to my knowledge, no."
22 The FBI memorandum that we received last night at 7:36
23 reveals that the conversation on 1015 was flagged by a language
24 specialist sometime before May 14, 2004, which was reflected in
25 the memorandum I have dated May 14, 2004, and it says that when
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1 an NYO language specialist attempted to listen to the call
2 while finalizing a verbatim transcript needed to introduce the
3 call into court, the LS could hear only one side, could only
4 hear one side of the conversation.
5 If Agent Kerns had personal knowledge of this
6 technical problem, which caused the FBI to send the material to
7 its laboratory in Quantico, then his answer given on redirect
8 was untrue. Regardless of whether or not he had knowledge,
9 because the question was "to your knowledge," this information
10 in this document that we received last night was Brady material
11 with respect to our broad-guaged challenge to all Lockheed
12 Martin calls, including the Lockheed Martin call that is
13 contained on Exhibit 1015.
14 I, at a minimum, am entitled, I think, to ask Agent
15 Kerns about this regardless of the purpose for which he is
16 tendered today.
17 I also request that the court ask the government for
18 an explanation of this problem and that if matters are as they
19 appear to be, that we ought to have had it and did not, that we
20 strike from evidence 1000, 1015 and 1300 -- that is, the
21 conferred exhibits -- and reopen the authenticity hearing.
22 THE COURT: Ms. Baker.
23 MS. BAKER: Your Honor, not everyone means the same
24 thing when they use the phrase "technical problem" and the
25 questions and answers in Agent Kerns' direct testimony or cross
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1 or redirect, whatever Mr. Tigar was citing, related to the
2 issue of whether, to his knowledge, during the recordings of
3 any of the calls on the trial DVDs, whether the recording
4 system itself malfunctioned in some way, whether the recording
5 system had some technical problem. And Agent Kerns' answer was
6 that, to his knowledge, it did not.
7 The call at issue here, and it's one call on its own
8 DVD or CD, which is Government Exhibit 1015, and so therefore
9 what we are discussing here now doesn't bear on the recordings
10 on the disks in evidence as Government Exhibit 1000, 1300 or
11 1301, that one call on that DVD suffers from what Mr. Losinski,
12 the enhancing witness, refers to as a near-far problem, which
13 is that when you listen to it in its originally recorded form
14 or the most original recorded form that we have today, you hear
15 Mr. Sattar very loudly and clearly on his end of the phone, but
16 the other speaker on the other end of the phone is very soft
17 and sounds very far away. It's not completely inaudible. It's
18 just much softer and difficult to hear in the VOC file
19 recording.
20 And the fact that it's not impossible to hear, and
21 that it never was impossible to hear, that it was never gone,
22 is illustrated by the fact that there was a tech cut for that
23 call that was produced to the defendants in discovery. There
24 was a draft transcript of that call that was produced to the
25 defendants in discovery. And so it was only in an effort to
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1 have the best possible quality recording for use with the jury
2 at the trial, because it's an English-language call, that the
3 government arranged for the VOC file of the recording to be
4 enhanced primarily to equalize the volume between the two
5 people speaking so that the volume of the "far party" could be
6 raised to make it more audible, more intelligible, without
7 making Mr. Sattar's end of the conversation too loud and
8 distorted.
9 So the use in a memo, which was not written by Agent
10 Kerns, the memo that Mr. Tigar is referring to, of the phrase
11 technical problem, doesn't mean a problem with the recording
12 system. It means in this instance just the way the call itself
13 sounded because of the telephone connection or issues with the
14 telephone line resulted in a recording in which one party was
15 very difficult to hear and that is the reason why the
16 government had it enhanced.
17 So this memo, which Agent Kerns did not write, is not
18 Brady material of Agent Kerns on anything that he testified to.
19 It has no bearing on the admissibility of the overall
20 collection of calls that are in evidence and the government
21 respectfully submits that as to the one particular call at
22 issue, the VOC file recording of it is in evidence on
23 Government Exhibit 1015. It can be played for the jury.
24 The government will seek to offer through Mr. Losinski
25 the enhanced copy of the call, but if Mr. Tigar wishes to make
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1 some use at some point during the trial of the original
2 recording of the call, he is free to do that. And to the
3 extent that there is any issue here that Mr. Tigar should have
4 known sooner about the condition of that recording in its VOC
5 form, he has had the copy of that VOC file on the pretrial
6 discovery set of VOC DVDs that he received for I don't know how
7 many months now, for a great number of months. So this is not
8 the first time that he has received the recording and so it was
9 available to him for him to make whatever determination he
10 wanted about the quality of the recording itself for whatever
11 that means or doesn't mean.
12 But the bottom line is that what is in the memo, which
13 Agent Kerns did not write, just doesn't have the meaning
14 contradictory of the testimony that Agent Kerns gave because he
15 was testifying specifically about the working of the recording
16 systems themselves.
17 MR. TIGAR: Your Honor, I am going to measure my words
18 carefully and I am going to say exactly what I mean.
19 What you have just heard contains falsehoods. I asked
20 Agent Kerns at 3449 and 3450, I asked him about specialists.
21 He used the word "they asked to see there was a technical
22 problem." He used the word technical problem at lines 8 and 9.
23 And I then followed up.
24 "You are talking about the language specialist asking
25 about technical problems, correct?
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1 "A. Yes."
2 So the word "technical problems" was one he
3 introduced.
4 Then in the portion I quoted from Ms. Baker's
5 redirect, he was asked if there was any technical problems.
6 Ms. Baker asked that, the same word, referring, as she had in
7 the previous question, to my having asked him about problems
8 with the tapes. No, he said, no technical problems.
9 So now we have Agent Kerns defining, understanding
10 that a technical problem includes a problem that a language
11 specialist had. The word technical problem does not appear in
12 the FBI memorandum. He didn't say it did. That FBI memorandum
13 doesn't say that the audio was indistinct. It's written, to be
14 sure, by Agent Sorrells and I have a copy of it for the court.
15 It says, "Could only hear one side of the conversation."
16 Now, Agent Sorrells knows the difference between an
17 inability to hear one side of the conversation and a little
18 problem of the kind Ms. Baker was trying to describe. We know
19 he knows it because on July is 14, 2004 he wrote another
20 memorandum about a group of calls about which Agent Kerns was
21 to testify today. And he said that the specialist there
22 "reported problems hearing some portions of the call (s)." So
23 he knows the difference between unable to hear one side and
24 unable to hear other things.
25 So what we have is there was no ambiguity in my
SOUTHERN DISTRICT REPORTERS, P.C.
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1 question to Agent Kerns. He adopted my words. And then he
2 said no. So an attempt to characterize that as some
3 misunderstanding because everybody uses the word technical
4 problems differently can't possibly relate to one agent talking
5 about one simple set of words as a technical problem.
6 Second, the FBI memoranda in question do indeed
7 reflect these difficulties. And the question, your Honor,
8 ultimately -- there are two questions. One is, well, is it
9 okay because you can hear it? That is an ultimate kind of
10 question. And we have talked about that.
11 But the other question is that everybody to whom the
12 oath is administered owes an obligation to the court and
13 parties and when a witness comes in here and is careless with
14 the truth, that is a problem. And it's not a problem to be
15 papered over as one of semantics. It's the most fundamental
16 aspect of the adversary system.
17 MS. BAKER: Your Honor, there is no basis to strike
18 from evidence the recordings that are admitted. If Agent Kerns
19 understood Mr. Tigar's questions to be incorporating the
20 language specialist's understanding of the term technical
21 problems, and if that is what he meant in his answer, then
22 obviously that meant that as he was sitting there on the
23 witness stand he didn't recall any technical problems. Indeed,
24 there is nothing in this paperwork that indicates that Agent
25 Kerns ever specifically knew of what the issue was that relates
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47LSSAT1
1 to this one particular call that Mr. Tigar is now referring to.
2 The memo that Mr. Tigar has indicates that Agent
3 Sorrells learned from a language specialist that there was the
4 lack of audibility of the one side of that telephone call and
5 so this memo, as I said before, wasn't written by Agent Kerns.
6 There is no indication on its face that he ever saw it. I
7 don't know as I stand here now whether Agent Kerns ever knew
8 about any audibility issue relating to this one call. If he
9 ever knew it or if he knew it and he forgot, then his answer on
10 cross examination was a truthful and accurate answer.
11 And Mr. Tigar, as I said, has long had this recording.
12 He could have followed up on that question and answer on cross
13 examination with further questions, and he did not. And
14 overall the issue of whether part of a conversation is not as
15 audible as we might wish, again, is an issue as to the weight
16 that the jury should or shouldn't afford to that recording.
17 It's not an issue of admissibility. So, again, from the
18 government's perspective, the bottom line is there is no basis
19 to strike anything from evidence and Mr. Tigar had his
20 opportunity to cross examine Agent Kerns about the recording on
21 Government Exhibit 1015 when Agent Kerns previously testified
22 about Government Exhibit 1015 and the call on it.
23 THE COURT: Let me ask you this: Government Exhibit
24 1015 is the VOC file for a specific phone call. That is the
25 VOC file that is unenhanced and it's there. It's the one that
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1 was identified by Agent Kerns. People can look into it as to
2 what the audibility is with respect to both sides of that
3 conversation.
4 There is another enhanced version of Government
5 Exhibit 1015?
6 MS. BAKER: Yes, your Honor.
7 THE COURT: First of all, nothing that I have been
8 told this morning calls into doubt anything other than
9 Government Exhibit 1015 and not even call into doubt, based
10 upon what I heard, Government Exhibit 1015. Since Agent Kerns
11 going to be testifying, Agent Kerns can be cross examined with
12 respect to Government Exhibit 1015 as to whether there were any
13 technical problems, as to whether those technical problems
14 included audibility problems, whether to his knowledge this was
15 sent to a language specialist, whether that is consistent with
16 his prior testimony that he recalled no technical problems, and
17 that is a matter for cross examination.
18 There is no showing of a Brady violation and no
19 showing to strike any of the exhibits.
20 (Continued on next page)
21
22
23
24
25
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1 MR. TIGAR: Your Honor, please, I understand the Court
2 has ruled, but what Ms. Baker said in her last set of remarks
3 needs to be looked at against what's at 3418 of the transcript.
4 She specifically asked him about the call that's on 1015,
5 April 27, 1999. She asked him: "Why were you asked to put
6 that particular call... on the CD?"
7 He said, "I was told what the language specialists
8 were having --"
9 I objected on hearsay grounds because I didn't know
10 what was coming. I didn't have this document here, so I
11 couldn't know. And your Honor sustained the objection.
12 THE COURT: Sustained your objection?
13 MR. TIGAR: Sustained my objection. But then
14 Ms. Baker came back to it. But what I'm pointing out here,
15 your Honor, the idea that Agent Kerns didn't know about this
16 call and that this specific call had a problem, which is the
17 representation made, just isn't so. Because at 3418 of the
18 transcript, he was specifically asked about it.
19 THE COURT: But Ms. Baker didn't say that. Ms. Baker
20 didn't say that. She said -- my recollection of what Ms. Baker
21 said is, she can't say, now, whether Agent Kerns was aware of
22 an audibility issue with respect to that tape and didn't take a
23 technical problem to refer to that or had forgotten that. What
24 she said was -- there's no evidence that she deliberately
25 denied the existence of a problem which, at the time he
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47LLSAT2
1 responded to that question, he was aware of, or recalled at
2 that time. And what I've said, Mr. Tigar, is you are welcome
3 to ask him about that when he is recalled.
4 MR. TIGAR: I apologize if I have angered the Court by
5 talking too long.
6 THE COURT: No, no. I really don't -- I don't become
7 angry. And please, don't characterize that simply because I
8 state anything with some more emphasis. My effort is to deal
9 with arguments on a reasonable basis when they're raised.
10 MR. TIGAR: Your Honor, may I then ask that -- I've
11 marked --
12 THE COURT: Let me assure you, you've not said
13 anything to be offensive to the Court.
14 MR. TIGAR: Your Honor, I've marked the matter, the
15 memorandum of May 14th, as LS-21. I'd ask that it be received
16 as a court's exhibit. All parties have copies of it. And I
17 would also ask for a direction that the government -- that no
18 one from the government discuss the colloquy we've just had
19 with this witness, Agent Kerns. So that I have a fair chance.
20 THE COURT: Sure. And my recollection is that that
21 would be Court Exhibit 3.
22 MR. TIGAR: I marked it LS-21, but can I hand it up
23 and have it re-marked.
24 THE COURT: If you want to just leave it as LS-21 and
25 just identify it without admitting it into evidence, that would
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1 be fine.
2 MR. TIGAR: I just wanted to make sure it's a part of
3 the record, your Honor. May I hand it up to Mr. Fletcher?
4 THE COURT: Sure.
5 MS. BAKER: Your Honor, for the record, prior to
6 Mr. Tigar marking it with the LS designation, it was
7 denominated as a piece of 3500 material for Mr. Losinski as
8 3528-H.
9 THE COURT: Okay. Do you want me to mark it as a
10 court exhibit? I'll mark it, if you wish.
11 MR. TIGAR: Your Honor --
12 THE COURT: It's identified.
13 MR. TIGAR: I'm a stranger in your town here in that
14 way. Whatever gets it into the record, gets it so it's there.
15 It's a matter of no difference to me. It's just a question of
16 what the Court feels is the best way to do it. Perhaps as a
17 court exhibit would be better. That way there'd be no risk
18 that the jury would get it.
19 THE COURT: Fine. I'll mark it as Court Exhibit 3.
20 (Court Exhibit 3 received in evidence)
21 THE COURT: Okay. Anything else? We're taking a
22 longer lunch break today. And -- it will start at about 12:00
23 o'clock and be two hours. Okay, let's call the jury.
24 MS. BAKER: I'm sorry, your Honor, I want to correct
25 the record. I misspoke. The memo in question was part of
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1 3528-K, not H.
2 (Jury entering)
3 (In open court)
4 THE COURT: Please be seated, all. Good morning,
5 ladies and gentlemen.
6 JURORS: Good morning.
7 THE COURT: It's good to see you all. Ladies and
8 gentlemen, we're going to be taking a longer lunch break today,
9 and it's going to begin at about 12:00, so we'll see if we take
10 a break in the course of the morning or not. But again, if at
11 anytime anyone feels that they need a break or if I think it's
12 appropriate for a stretch break sometime between now and 12:00
13 o'clock, we'll do that.
14 I leave open the possibility that we'll take a break
15 in the course of the morning. But we'll see. It would be
16 somewhat more than an hour.
17 Okay. Government?
18 MR. BARKOW: Your Honor, at this point the government
19 requests permission to publish and read one piece of evidence
20 from the Sattar search. Government Exhibit 2029 and government
21 Exhibit 2029T, in that order.
22 THE COURT: All right. Ladies and gentlemen, these
23 exhibits were offered solely as to Mr. Sattar and solely with
24 respect to the intent and state of mind of Mr. Sattar. To the
25 extent that these are newspaper clippings, I've already given
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1 you the instructions on newspaper clippings, how they're not
2 received for the truth of anything that is asserted in the
3 newspaper articles. Okay.
4 MR. BARKOW: Your Honor, may we publish Government
5 Exhibit 2029 for the jury?
6 THE COURT: Yes.
7 (At this point, Government Exhibit 2029, in evidence,
8 was displayed to the jury)
9 MR. BARKOW: That's the only page of that exhibit,
10 your Honor. May we now publish Government Exhibit 2029T, the
11 translation of that?
12 THE COURT: All right.
13 (At this point, Government Exhibit 2029T, in evidence,
14 was displayed and read to the jury)
15 MR. MORVILLO: Your Honor, at this time the government
16 would call Brian Bartholmey.
17 THE COURT: All right.
18 (Witness sworn)
19 DEPUTY CLERK: Please state your full name; spell your
20 last name slowly for the record.
21 THE WITNESS: My name is Brian Bartholmey,
22 B-a-R-t-h-o-l-m-e-y.
23 DEPUTY CLERK: Thank you.
24 THE COURT: All right. Mr. Morvillo, you may examine.
25 ///
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1 BRIAN BARTHOLMEY,
2 called as a witness by the Government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. MORVILLO:
6 Q. Good morning, Sir.
7 A. Good morning.
8 Q. How are you employed?
9 A. At the present time, I'm happily unemployed.
10 Q. How long have you been unemployed?
11 A. Nineteen days.
12 Q. How were you previously employed?
13 A. I was an FBI agent for 28 years.
14 Q. When you retired, when you stopped being an FBI agent, why
15 did you stop?
16 A. I'm sorry, I didn't hear you, Sir.
17 Q. Why did you stop working at the FBI?
18 A. I retired.
19 Q. Where was your last assignment with the FBI?
20 A. Rochester, Minnesota.
21 Q. And you said -- you testified that you were an FBI for 28
22 years?
23 A. Yes, Sir.
24 Q. Could you briefly tell the jury where you were assigned in
25 those 28 years and what kind of work you did?
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1 A. Sure. In 1976, after I graduated from our Academy in
2 Quantico, I was assigned in Chicago, Illinois office where I
3 worked primarily white collar crime and public corruption. In
4 1986, I was assigned to the Rockford, Illinois office where I
5 worked drug crimes and gang crimes. In 1996, I was given a
6 seniority transfer to Rochester, which is Minnesota, which is
7 my home area, where I worked from, again, in 1996 till my
8 retirement here early this month.
9 Q. What kind of work did you do in Rochester?
10 A. In Rochester, it's a small office, I always kind of refer
11 to us there as kind of the country doctors of the FBI. We work
12 whatever crimes occurred in those southwest or southeast
13 counties: Bank robberies, homicides, white collar bank
14 offenses. And then part of our duties also included going to
15 the Federal Medical Center in Rochester, which is actually a
16 prison, and conducting investigations there.
17 Q. Directing your attention to May 20th, 2000, were you
18 working on that day?
19 A. Yes, Sir.
20 Q. What was your assignment that day?
21 A. I was assigned to operate tape-recorders and record some
22 conversations that were taking place in the conference room.
23 Q. Did you actually go to FMC Rochester on that day?
24 A. I did.
25 Q. When you got there, did you sign in?
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1 A. I did.
2 Q. May I approach, your Honor?
3 THE COURT: Yes.
4 Q. Agent Bartholmey, I've handed you what's been admitted in
5 evidence as Government Exhibit 1760D, and also what's been
6 marked for identification as Government Exhibit 1760. I'd ask
7 you to take a look at Government Exhibit 1760 first and let me
8 know whether you recognize it.
9 A. 1760 is the original official visitors' log from the
10 Federal Medical Center that I would have signed on May 20th of
11 2000.
12 Q. Can you turn to the second page of that book? Do you
13 recognize that page?
14 A. Yes, Sir. That's the page I signed in on on May 20th.
15 Q. And now directing your attention to 1760D, what is that?
16 A. This would be a color copy of the original, 1760.
17 Q. Do you see your signature on that page?
18 A. Yes, Sir.
19 Q. What time did you sign in?
20 A. 7:43 a.m.
21 Q. And what time did you sign out?
22 A. 3:30 p.m.
23 Q. And during that time that you were at FMC Rochester, did
24 you actually make a recording of a meeting there?
25 A. Yes, I did.
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1 Q. Were you working alone that day or with someone else?
2 A. At that time, I was working with Special Agent Rick Ostrom
3 from our Minneapolis office.
4 Q. What did you do after you signed in that day?
5 A. After signing in in the front lobby, I went to an office
6 located across the hall from the conference room. Some agents
7 had already set up recording devices there: Two tape decks and
8 a television monitor. And when I got to the room I turned
9 those two devices on, and I waited until I was notified that
10 the parties that I was to record were or had arrived at the
11 prison. Once the parties were in place, I loaded new tapes
12 into both tape Deck A and tape Deck B. Prior to putting it in
13 Deck A and Deck B, I put the date of the recordings, and then
14 when the parties were in place, I activated both the A and B
15 tape decks.
16 Q. How did you know when the parties were in place?
17 A. There was a video camera in the conference room, and once I
18 saw the parties arrived, I knew I could activate the devices.
19 Q. Did you activate both devices at the time?
20 A. Yes.
21 Q. Were you in -- withdrawn.
22 Do you know whose office you were in?
23 A. Yes, we were in Kara Christenson's office. She's a
24 litigation specialist for the Bureau of Prisons.
25 Q. Did there come a time during the course of that meeting
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1 that you were monitoring that you had to switch the tapes?
2 A. Yes.
3 Q. And what did you do when you had to switch the tapes?
4 A. Well, each of the recording tapes are approximately two
5 hours in length. So at about maybe an hour and 55 minutes or
6 so, I would first stop tape Deck A, remove the tape, put in a
7 fresh tape in tape Deck A, place my initials onto that tape,
8 set it aside. Then I would activate -- actually, I would
9 activate tape Deck A immediately after taking out the tape.
10 Then I would stop tape Deck B, remove that tape, place
11 my initials on it, put in a fresh tape in tape Deck B and
12 reactivate tape Deck B. That way there was always -- there was
13 never a time when at least one of those tape decks wasn't
14 recording in that room.
15 Q. Did you record the entire meeting?
16 A. Yes.
17 Q. Do you know whether the recording equipment was operating?
18 A. Yes.
19 Q. How do you know that?
20 A. There are needles, record level needles on those machines,
21 as I recall. And then -- I don't always, you know, trust
22 technical stuff -- I did it the old fashioned way. I put on a
23 pair of headphones just briefly at the start of the
24 conversation, make sure that I could hear voices. And then I
25 put those headphones down and never picked them up again.
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1 Q. Other than that one brief moment when you picked up the
2 headphones to listen to make sure that the recording was
3 working, did you monitor any portion of the meeting that was
4 taking place in the conference room?
5 A. No.
6 Q. At any point during the meeting that was taking place in
7 the conference room, did you, other than when changing the
8 tapes, did you stop or pause the recording?
9 A. No.
10 Q. May I approach, your Honor?
11 THE COURT: Yes.
12 Q. Agent Bartholmey, I've just handed to you what's been
13 marked for identification as Government Exhibits 1710 through
14 1715.
15 A. Yes, Sir.
16 Q. Do you recognize those?
17 A. Yes, Sir. Those are the tapes I made on May 20th of 2000.
18 Q. How do you know that?
19 A. Each of the tapes bear my initials and the date, May 20th,
20 2000.
21 Q. How many total tapes are there?
22 A. Six.
23 Q. And just so I'm clear, does that mean there were three
24 segments of the meeting that was recorded?
25 A. That's correct. There would be three sections of the
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1 meeting in two different tape decks, so that would be six
2 tapes.
3 Q. Directing your attention now to July 13th of 2001.
4 A. Yes, Sir.
5 Q. Were you working on that day?
6 A. Yes, Sir.
7 Q. What was your assignment on that day?
8 A. As in the early situation, I was assigned to make
9 additional recordings of that activity in that conference room.
10 Q. Did you also sign in on that day?
11 A. Yes, Sir.
12 Q. May I approach, your Honor?
13 THE COURT: Yes.
14 Q. Agent Bartholmey, I've just handed you what's been marked
15 in evidence as Government Exhibit 1761C and what's marked for
16 identification as Government Exhibit 1761. Do you recognize
17 those?
18 A. Yes, Sir.
19 Q. What is Government Exhibit 1761?
20 A. This is the original official visitors' log that I signed
21 in on July 13th, 2001.
22 Q. And turn to the tabbed page of that exhibit, please.
23 A. Yes, Sir.
24 Q. What is government Exhibit 1761C?
25 A. It would be a color copy of Exhibit 1761.
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1 Q. For one page of 1761?
2 A. Yes, Sir.
3 Q. And what is that page?
4 A. It's a page showing that I signed in on July 13th of 2001
5 at 8:46 a.m. and I signed out at 3:17 p.m.
6 Q. Were you working with anybody else that day?
7 A. No, Sir, I was alone that day.
8 Q. And while you were at FMC Rochester on that date between
9 those hours, did you actually record a meeting?
10 A. Yes.
11 Q. And was the methodology to record that meeting identical to
12 the methodology that you employed on May 20th of 2000?
13 A. Yes, Sir.
14 Q. Was there anything different?
15 A. No, Sir.
16 Q. Was the equipment that was there the same?
17 A. Yes.
18 Q. May I approach again, your Honor?
19 THE COURT: Yes.
20 Q. Agent Bartholmey, I've just placed before you what's been
21 marked for identification as Government Exhibits 1716, 1717,
22 1718, and 1719.
23 A. Yes, Sir.
24 Q. Do you recognize those?
25 A. Yes, Sir.
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1 Q. What are they?
2 A. These are the tapes that I made on July 13th of 2001.
3 Q. And how do you recognize them?
4 A. Each of these tapes bears the date July 13, 2001, and my
5 initials.
6 Q. When you were making the recordings on that day --
7 withdrawn.
8 How many tapes are there?
9 A. Four tapes.
10 Q. And are those tapes denoted from Deck A and Deck B?
11 A. Yes, Sir.
12 Q. When you were making the recordings on that day, at anytime
13 did you stop the recorder?
14 A. No.
15 Q. During the meeting?
16 A. No.
17 Q. And to your understanding, was the recording equipment
18 working on that day?
19 A. It was.
20 Q. How do you know that?
21 A. Noting the record level, needles, and also I briefly did a
22 sound level check using the headphones as I did on the earlier
23 occasion.
24 Q. Turning back to the tapes made on the May 20th, 2000 visit,
25 what did you do with those tapes after the meeting ended?
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1 A. Placed them in a box in the office, and then left them
2 there so Special Agent Rick Ostrom could take them from
3 Rochester to Minneapolis.
4 Q. Did you also take the tapes from July 13th, 2001 visit to
5 Minneapolis?
6 A. Yes.
7 Q. With respect to any of the tapes that you have up there,
8 have you seen those since they left your custody?
9 A. No.
10 Q. Prior to today?
11 A. Prior to today.
12 MR. MORVILLO: May I have a moment, your Honor?
13 THE COURT: Yes.
14 (Off the record)
15 MR. MORVILLO: I have no further questions, your
16 Honor.
17 THE COURT: All right.
18 MR. TIGAR: No questions.
19 THE COURT: All right.
20 MR. MORVILLO: Your Honor, at this time the government
21 would offer into evidence Government Exhibits 1700 through 1725
22 to the extent that those recordings correspond with transcripts
23 which will be offered into evidence subsequently.
24 MR. TIGAR: We would like them offered for all
25 purposes and without any restrictions. So we don't object to
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1 the offer, but we want the restrictions removed.
2 THE COURT: I'll take it under advisement. I'll
3 reserve.
4 Nothing further for the witness? The witness is
5 excused
6 THE WITNESS: Thank you, Sir.
7 THE COURT: You may step down.
8 MR. MORVILLO: Your Honor, may I step outside for a
9 moment?
10 THE COURT: Yes.
11 MS. BAKER: Your Honor, the government recalls Scott
12 Kerns.
13 THE COURT: All right.
14 DEPUTY CLERK: Agent Kerns, having been previously
15 sworn, you are reminded you're still under oath.
16 THE WITNESS: I understand.
17 THE COURT: You may continue.
18 MS. BAKER: Thank you, your Honor.
19 REDIRECT EXAMINATION
20 BY MS. BAKER:
21 Q. Good morning, Agent Kerns.
22 A. Good morning.
23 Q. Your Honor, may I approach the witness?
24 THE COURT: Yes.
25 Q. Agent Kerns, I've handed you an item that's marked for
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1 identification as Government Exhibit 1315c. Do you recognize
2 it?
3 A. Yes, I do.
4 Q. What is this?
5 A. This is a CD that I created on 7-14-04.
6 Q. What is on the CD?
7 A. Calls from 6-21, 2000.
8 Q. Were you requested to put those calls together on that
9 particular disk?
10 A. Yes.
11 Q. How are you able to recognize that disk as one that you
12 created?
13 A. By the black writing on the bottom. I labeled what was on
14 here, my initials, and the date.
15 Q. I'm going to ask you now to explain to the jury again the
16 process that you used to create that disk. Would it assist you
17 to refer to the diagram that we've used previously, Government
18 Exhibit 1310?
19 A. Yes.
20 Q. Your Honor, may I display government Exhibit 1310 which is
21 in evidence?
22 THE COURT: Yes.
23 Q. Agent Kerns, with reference to Government Exhibit 1310,
24 would you explain to the jury how you created that disk which
25 is marked as government Exhibit 1315D?
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1 A. Sure. I had a list from the U.S. Attorney's office.
2 THE COURT: I'm sorry?
3 Q. I'm sorry, 1315C.
4 A. 1315C. Yes. I had a list from the U.S. Attorney's office
5 of several calls that they wanted put on a CD to be sent down
6 to our research facility. I found the MOs. What I did was, in
7 Position 1 you place the MOs, the MO; those particular calls
8 were copied to the computer in position Number 2; and then I
9 created -- this is a CD, which was created in position
10 Number 3. At which point I popped it out, wrote the
11 information on it.
12 Q. When you copied the files from -- well, withdrawn.
13 Did you have to use only one magneto optical disk or
14 more than one to retrieve the particular calls that are on this
15 CD?
16 A. Just one. And I believe it was just one side of one,
17 because all the calls are right after another.
18 Q. And when you copied the recordings from that side of that
19 magneto optical disk represented in the diagram as Position 1
20 to the computer shown in Position 2, were they exact copies?
21 A. Yes, they were.
22 Q. Did you change the file format in any way?
23 A. No.
24 Q. Then from the computer shown in Position 2, you copied or
25 burned the calls to the CD as shown in position Number 3?
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1 A. Correct.
2 Q. Again, were those exact copies?
3 A. Yes, they were.
4 Q. Your Honor, may I approach the witness again?
5 THE COURT: Yes.
6 Q. Agent Kerns, I've handed you two documents that are marked
7 for identification as Government Exhibits 1315L and 1316. Let
8 me ask you to look first, please, at Government Exhibit 1315L.
9 Do you recognize that document?
10 A. Yes, I do.
11 Q. Is that document a list of the audio files that are
12 contained on the CD which is marked as Government Exhibit 1315?
13 A. Yes, they are.
14 Q. I'm sorry, I misspoke earlier. Let me go back. When I was
15 asking you about the particular CD that's in front of you
16 there, that's marked as 1315, correct?
17 A. 1315.
18 Q. With no letter after it?
19 A. No letter after it.
20 MS. BAKER: Your Honor, if my earlier questions might
21 be essentially amended to reflect I was referring to 1315, not
22 with any letter after it.
23 THE COURT: Do you understand that?
24 THE WITNESS: Yes, your Honor.
25 THE COURT: Were those answers accurate with respect
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1 to government Exhibit 1315?
2 THE WITNESS: Yes, they were, your Honor.
3 THE COURT: Okay.
4 BY MS. BAKER:
5 Q. Let me direct your attention specifically to the left-hand
6 column of the document marked as Government Exhibit 1315L.
7 Does that reflect the date and time of each of the calls that
8 you put onto this CD which is Government Exhibit 1315?
9 A. Yes. The date and start time of the call, correct.
10 Q. And from where do you get the information as to the date
11 and start time of each of the calls?
12 A. It's in the VOC header of each particular call.
13 Q. Turning your attention to the second column of the document
14 marked as Government Exhibit 1315L, what is the information in
15 the second column?
16 A. It's labeled under file name on GX 1315. That is the
17 original file name for that particular call which came off of
18 the MO.
19 Q. And directing your attention to the right hand column of
20 Government Exhibit 1315L, does that column reflect the
21 government exhibit number for court purposes that has been
22 assigned to each of the recordings?
23 A. Yes.
24 MS. BAKER: Your Honor, I would offer Government
25 Exhibit 1315L.
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1 MR. TIGAR: No objection to 1315L as in Lima.
2 THE COURT: All right. Government Exhibit 1315L
3 received in evidence.
4 (Government's Exhibit 1315L received in evidence)
5 MS. BAKER: Your Honor, may I display a copy of it to
6 the jury?
7 THE COURT: Yes.
8 BY MS. BAKER:
9 Q. Agent Kerns, directing your attention to the second column,
10 the column headed "file name" on GX 1315?
11 A. Yes.
12 Q. Those file names are in a different format than the file
13 names on the previous lists of recordings that you've testified
14 about. Can you explain why these particular file names are in
15 the format that they're in?
16 A. Sure. This is the way -- the file name, this second column
17 from the left, that is the way it appears on any particular MO
18 that we have in our inventory. When I had testified
19 previously, I had stated that I have to search the VOC header
20 because, as you see in the first call, 5349, I have no idea who
21 that call belongs to, the time, the telephone number. So in
22 the VOC header, that information is relevant.
23 Then what I would do, as I testified last Monday, is
24 you rename the call based on the information in the VOC header.
25 So I would take the information from the call, date and time,
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1 and just rename it and put period -- dot VOC (.voc) so it would
2 make sense. Looking at this particular CD, there are 12 calls.
3 Just looking at that information, unless I open it up as we had
4 previously in a text editor, I have no idea what the telephone
5 calls are.
6 But that's how they are listed in the system. And
7 that is how they are recorded and numbered sequentially.
8 Q. So as to the files on the earlier disks of calls, you were
9 essentially renaming those just for convenience or for ease of
10 use?
11 A. Correct. You'd have so many files, it's the only way you
12 could tell without opening every file what the date and time of
13 the call is.
14 Q. And when you made this CD, this did not go through that
15 extra step of renames the files?
16 A. No, I just copied it to a CD to provide to our research
17 facility.
18 Q. Agent Kerns, let me ask you to look now please at
19 Government Exhibit 1316. Do you recognize that document?
20 A. Yes, I do.
21 Q. Does that document set forth certain information regarding
22 each of the recordings that are on the CD which is marked as
23 Government Exhibit 1315?
24 A. Yes it does.
25 Q. Before you came to court this morning, did you verify the
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1 accuracy of the information in this document?
2 A. Yes, I did.
3 Q. Did you indicate that on the document somehow?
4 A. Yes, I did. I just signed my name and put today's date.
5 Q. Directing your attention to the left-hand column of
6 Government Exhibit 1316, it shows for each of the calls a start
7 time.
8 A. Correct.
9 Q. From where did you get that information?
10 A. That is in the VOC header in the session start field.
11 Q. Directing your attention to the second call column, that
12 for each call lists an end time. Where did you get that
13 information?
14 A. That information is, if you scroll all the way through the
15 call in a text editor such as Notebook, it's in the session end
16 equals field at the end of that particular call.
17 Q. And then do the remaining two columns show the government
18 exhibit number for court purposes of the recording and the
19 government exhibit number of the disk or disks that the
20 recording is on?
21 A. Yes, it does.
22 Q. And the heading across the top of the document, does that
23 reflect the accurate date of all of the calls and the telephone
24 number of all of the calls?
25 A. Yes, it does.
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1 Q. And where did the date and telephone number information
2 come from?
3 A. The telephone number comes from the tnum field -- tnum=
4 field in the VOC header, and the call date would come. You
5 could pull that information from either the start time or --
6 excuse me, the session start or the session end. It's listed
7 in both.
8 MS. BAKER: Your Honor, I offer Government
9 Exhibit 1316.
10 MR. TIGAR: No objection to 1316.
11 THE COURT: All right. Government Exhibit 1316
12 received in evidence.
13 (Government's Exhibit 1316 received in evidence)
14 MS. BAKER: May I publish it to the jury?
15 THE COURT: Yes.
16 BY MS. BAKER:
17 Q. Agent Kerns, based on your review of the start and end
18 times of these calls, is it fair to say that these calls
19 basically all follow directly one after another on this
20 particular telephone number?
21 A. Yes, they do.
22 Q. And the actual recordings, the starting and ending times,
23 either the next one starts right when the previous one ends or
24 only a few seconds later?
25 A. That's correct.
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1 MS. BAKER: Your Honor, I'd offer the disk itself,
2 Government Exhibit 1315. And I have no further questions for
3 Agent Kerns.
4 THE COURT: All right.
5 MR. TIGAR: May I inquire, your Honor.
6 THE COURT: Yes. Actually, ladies and gentlemen,
7 we're about midway through the morning, so why don't we take a
8 stretch break.
9 (Stretch break)
10 THE COURT: All right. Please be seated, all.
11 CROSS EXAMINATION
12 BY MR. TIGAR:
13 Q. Agent Kerns, I'd like to begin by asking you questions
14 about a matter that we discussed the other day, and that is the
15 call on Government Exhibit 1015. Do you remember having
16 discussed 1015?
17 A. I don't know which particular exhibit that was.
18 Q. Do you remember discussing with us the DVD that had one
19 telephone call from April 27, 1999 at 18:29:45?
20 A. Correct, yes.
21 Q. And that was a call -- and that's the only call on that
22 diskette, right? On that disk?
23 A. Yes, it was, I believe.
24 Q. And that was -- you were asked to put that particular call
25 on a single DVD, correct?
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1 A. Correct.
2 Q. And that was because there were technical problems with the
3 call?
4 A. That's what I was told, correct.
5 Q. Who told you that there were technical problems with the
6 single call on that diskette?
7 MS. BAKER: Objection. Hearsay.
8 THE COURT: Not offered for the substance or truth.
9 You can answer that.
10 A. I don't remember who told me to put it on a CD to have it
11 sent down to the research facility.
12 Q. Did a language specialist tell you?
13 A. I don't know if it was one of our language specialists, one
14 of the case people. I don't remember.
15 Q. And was it your information that the language specialists
16 could hear only one side of the conversation?
17 A. If that -- I do remember discussing with the language
18 personnel one call that they were having an issue only hearing
19 one side. I can't remember. I would have to listen to the
20 call to see if it was that particular one. I don't remember.
21 MR. TIGAR: May I approach, your Honor?
22 THE COURT: Yes.
23 BY MR. TIGAR:
24 Q. I'm going to show you now what I have marked as LS-21, and
25 I ask you, Sir, to look at it for as long as you like,
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1 particularly addressing your attention to the paragraph that
2 begins "captured" and then tell the jury whether that refreshes
3 your recollection.
4 A. Yes, this electronic communication states that that was the
5 issue at that particular time.
6 MR. TIGAR: I'm sorry, Sir. May I approach again?
7 THE COURT: Yes.
8 Q. I was asking you, Sir, simply, does this refresh your
9 recollection?
10 A. Yes, it does.
11 Q. And with your recollection thus refreshed, do you recall
12 that the conversation on 1015 in evidence was the one as to
13 which the language specialist said she could hear only one
14 side?
15 A. Correct.
16 Q. And, Sir, do you recall in your earlier appearance being
17 asked the following question and making the following answer?
18 Question --
19 MS. BAKER: Objection.
20 THE COURT: Overruled.
21 Q. Question: To your knowledge, were any calls on the trial
22 DVDs that I showed you earlier, Government Exhibit 1000, 1015
23 and 1300, affected by any accident or technical problems?
24 Answer: Not to my knowledge, no.
25 Do you recall being asked that question by Ms. Baker
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1 and making that answer?
2 A. Yes, I do.
3 Q. Wasn't true, was it?
4 A. Well --
5 Q. Was it true or not true, Sir?
6 A. I had stated at that time that I did not believe it was a
7 technical problem. I have listened to that particular call.
8 That call does not sound to me as if our equipment -- there was
9 an issue with our equipment recording the call.
10 Q. So you're telling us that your answer was based on your
11 view of whether there were technical problems, correct?
12 A. That is correct.
13 Q. The language specialist told you, or you heard, that there
14 was a technical problem, correct?
15 MS. BAKER: Objection.
16 THE COURT: Overruled.
17 A. I believe I was told, and then I actually did listen to the
18 first -- maybe minute of the telephone call.
19 Q. After -- you were asked with regard to problems with
20 language specialists having issues, correct?
21 A. Correct.
22 Q. If they couldn't hear it or there was something they
23 thought was wrong, they would ask to see if it was a technical
24 problem, correct?
25 A. Correct.
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1 Q. Who would they ask to see if it was a technical problem?
2 A. They could have -- in some cases they asked me or one of
3 the other technical personnel assigned to my squad.
4 Q. And when did you first hear that there was a technical
5 problem with the call on 1015?
6 A. I don't remember the exact date when I was told that there
7 was a problem with it.
8 Q. And did you -- was it in May of 2004?
9 A. It could have been, yes.
10 Q. Was it before May the 14th, 2004?
11 A. I don't know.
12 Q. Were you involved in sending that call to the FBI
13 headquarters or FBI facility at Quantico?
14 A. To the effect that I made the CD? Yes.
15 Q. You made a CD?
16 A. Correct.
17 Q. You made the CD that was sent to the FBI facility in
18 Quantico, correct?
19 A. Yes, it was, yes.
20 Q. Did you listen to that CD before you sent it?
21 A. No, I listened to the original call on our system.
22 Q. Did you listen to the original call on your system before
23 you sent the CD?
24 A. Yes, I did.
25 Q. Were you aware that the call was being sent down there to
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1 the FBI facility in Quantico to do something to it?
2 A. Yes.
3 Q. Did you agree with that decision?
4 A. Yes.
5 Q. The reason calls are sent to Quantico is that there are
6 technical problems with them, correct?
7 MS. BAKER: Objection.
8 THE COURT: Overruled.
9 A. When I state "technical problem", I am talking from a
10 computer hardware type issue, as in the case -- which is what I
11 believe on this particular government exhibit. One side not
12 being loud enough, to me; does not state that there was a
13 problem with my equipment, because it recorded the entire
14 length of the call, to my understanding. That means it could
15 have been somewhat -- it could have been easily something with
16 the telecommunications provider or any party on that line.
17 When I speak of technical problems, I am speaking of: We have
18 some sort of hardware problem or we're having some kind of
19 issue with our equipment.
20 Q. So when you answered the question, there's no technical
21 problem, you mean a hardware problem?
22 A. Yes.
23 Q. You don't know anything about audio type technical
24 problems, do you, Sir?
25 A. I wouldn't -- yes, I guess that would be correct.
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1 Q. The audio type technical problems are handled by Quantico,
2 correct?
3 A. Yes, they handle any problems with calls that they need to
4 enhance in some way to make them more audible, correct.
5 Q. And when you answered there was no accident or technical
6 problems in your earlier appearance, the question I asked you
7 about, did you know at the time you answered that question that
8 that call had been sent to Quantico where they deal with those
9 problems?
10 A. Yes, I knew they were sending it down there, correct.
11 Q. Now, Sir, I want to ask you about the -- pardon me while I
12 turn my back.
13 Someone in the U.S. Attorney's office asked you to
14 assemble the calls that are on the DVD that you have in front
15 of you, correct?
16 A. Correct.
17 Q. And that's Government Exhibit 1300?
18 A. The CD in front of me is 1315.
19 Q. 1315. That's Government 1315.
20 A. Correct.
21 Q. And what you did when you were asked to do that was, you
22 went to the MO disk, correct?
23 A. Correct.
24 Q. And on the MO disk, the calls have file names that are the
25 sequential file names that are on 1315L. Correct?
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47LLSAT2 Kerns - cross
1 A. Correct.
2 Q. For instance, in their file 5349, 5351, 5352 and so on,
3 correct?
4 A. Correct.
5 Q. The DVDs in evidence that you've explained have file names
6 that you put on there based on the session start information,
7 correct?
8 A. That's correct.
9 Q. These file names are file names that are on the MOs,
10 correct?
11 A. On -- yes, on all MOs, Lockheed Martin system -- this is
12 how they are maintained, correct.
13 Q. Now, that's not the file name -- oh, are these calls
14 Lockheed Martin calls or Raytheon calls?
15 A. They're Lockheed Martin calls.
16 Q. On the electromagnetic tapes, they don't have the same file
17 name?
18 A. No.
19 Q. Not only do they not have a VOC file name, they don't have
20 the same sequential numbering file name, correct?
21 A. That's my understanding, correct.
22 Q. When you say the file names on the MO disk are sequential,
23 what does that mean?
24 A. That means in the case of Lockheed Martin, as I testified
25 previously, when it went through the process to -- for
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1 conversion, every call, starting from Number 1 to -- there's at
2 least, on that one particular -- excuse me, one particular
3 tape, there's at least 5,366 calls, at minimum. It takes each
4 one off, and it's my understanding that it numbered it
5 sequentially over however many MOs it took to copy that tape to
6 MOs, so it could be five, six, seven, MOs, depending on how
7 full the tape is.
8 (Continued on next page)
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47LSSAT3 Kerns - cross
1 Q. Was there any reason that you adopted this style-naming
2 practice for these things?
3 A. No.
4 Q. Well, I want to look now at Government 1316 in evidence,
5 and we will note, please, let's take -- can we look please at
6 this call, this one here I am pointing to that begins at
7 07:43:16, correct?
8 A. Correct.
9 Q. And it ends at 17:44:20, correct?
10 A. Correct.
11 Q. And the next one starts at 17:44:20, correct?
12 A. Correct.
13 Q. That is exactly the same time, isn't it?
14 A. Yes, it is.
15 Q. So let's keep those two calls in mind.
16 Let's look at 1315L. The first of those calls I
17 pointed to is here, 07:43:16, do you see it?
18 A. Yes, I do.
19 Q. And that file number is 5352, correct?
20 A. Correct.
21 Q. Then the next call we saw starts immediately after that,
22 right?
23 A. Yes, it started at the session end of 5352 was the exact
24 second of that call.
25 Q. And the file name is 5354, which skips a number.
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47LSSAT3 Kerns - cross
1 A. Correct.
2 Q. How did that happen?
3 A. Because there are other calls on these tapes from other
4 FISA reportings.
5 Q. You are saying that another call from some other case is on
6 that MO?
7 A. Yes.
8 Q. And it got in there in between 52 and 54?
9 A. Yes.
10 Q. Now, did you have technical problems with the audio files
11 that are on 1315?
12 A. Yes, it appears we did have technical problems as I stated,
13 a computer hardware problem, yes.
14 Q. Did you listen to the calls?
15 A. I listened to I think one or two of them, yes.
16 Q. And what was the hardware problem?
17 A. The issue -- I can't say obviously because I wasn't there
18 at the time. It appears that the call is 12 different files
19 but I believe it's only one call. It looks like the equipment
20 was turning itself on and off, making it look like it's 12
21 separate calls when in fact it's only one. For whatever reason
22 the equipment did essentially a stop call and a start call even
23 though the target or the subject whose line we were up on
24 wasn't physically hanging up the phone or wasn't becoming
25 disconnected.
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47LSSAT3 Kerns - cross
1 Q. Now, did you discuss that technical problem with other
2 agents in the office?
3 MS. BAKER: Objection.
4 THE COURT: Overruled.
5 A. No, I don't believe so.
6 Q. Who was responsible for making the decision to do something
7 about this technical problem?
8 MS. BAKER: Objection.
9 THE COURT: Overruled.
10 A. I am sorry, with regard to what?
11 Q. The technical problem about which I have asked you, sir,
12 who was responsible for doing something about the technical
13 problem that you saw on 1315?
14 A. I am just -- with clarification, as with to improve the
15 audio on these calls or the hardware issue?
16 Q. Yes.
17 A. To improve the audio, I was just told that they wanted it
18 sent down to our research facility and that I should put them
19 on a CD and do so.
20 Q. And was the technical problem brought to someone's
21 attention by a translation specialist?
22 MS. BAKER: Objection.
23 THE COURT: Sustained.
24 Q. Did you ever discuss the technical problem with a
25 translation specialist for these calls?
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47LSSAT3 Kerns - cross
1 A. I don't know if the two translators ever mentioned to me
2 specifically this problem but I remember that I probably had
3 talked to the case squad that they had had some issues with
4 these particular calls.
5 Q. I am sorry?
6 A. With the case squad, the squad that is responsible for this
7 particular case, and that we were going to have to probably
8 send them down to the research facility in order to get them
9 enhanced.
10 Q. And did anyone ever tell you what the specific problems
11 were?
12 A. They had mentioned that in fact it was essentially one call
13 and that they were hearing I think it was what we call C tone,
14 but dial tone was somehow getting put into the call, which is
15 what would make sense as to why the call would turn itself on
16 and off or, I am sorry, would stop a session and start a next
17 one.
18 MR. TIGAR: May I have a moment please, your Honor?
19 THE COURT: Yes.
20 MR. TIGAR: No further questions, your Honor.
21 Thank you.
22 THE COURT: All right.
23 MS. BAKER: Your Honor, I have one question.
24 THE COURT: All right. Ms. Baker, you may examine.
25 REDIRECT EXAMINATION
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47LSSAT3 Kerns - redirect
1 BY MS. BAKER:
2 Q. Agent Kerns, in the making of the prior disks that you
3 testified about when you changed the names of the files from
4 their sequential number names like the ones that were just
5 displayed to the jury to the names that they have now, which
6 include the telephone number, date and time of the call, in
7 that changing of the file names did you change in any way the
8 audio content of the recording or the signal-related
9 information contained in the files?
10 A. No, I did not.
11 MS. BAKER: Thank you.
12 MS. BAKER: Your Honor, the government renews its
13 offer of the disk marked as Government Exhibit 1315.
14 THE COURT: All right. We will talk about that later.
15 MR. TIGAR: Note my request, your Honor.
16 THE COURT: Agent Kerns, you are excused. You may
17 step down.
18 THE WITNESS: Thank you, your Honor.
19 (Witness excused)
20 THE COURT: All right.
21 The government may call its next witness.
22 MS. BAKER: Your Honor, the government calls John
23 Losinski.
24 THE COURT: Ms. Baker, you may examine.
25 JOHN LOSINSKI,
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47LSSAT3 Losinski - direct
1 called as a witness by the Government,
2 having been duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MS. BAKER:
5 Q. Mr. Losinski, who do you work for?
6 A. I work for the Federal Bureau of Investigation.
7 Q. In what capacity?
8 A. I am a signal processing analyst at Quantico, Virginia.
9 Q. Could you briefly explain to the jury what you mean when
10 you say signal processing analyst?
11 A. What I do is I enhance audio recordings that are used for
12 investigative purposes or court presentations, whatever.
13 Q. And you said that you work at Quantico, Virginia?
14 A. That is correct.
15 Q. Is that where the FBI's laboratory is located?
16 A. The laboratory and the facility that I work out of is the
17 Engineering Research Facility.
18 Q. In your capacity as signal processing analyst, do you also
19 examine audio recordings?
20 A. I examine them for the purposes of enhancing them, cleaning
21 them up so they can be better understood.
22 Q. How long have you been doing that kind of work for the FBI?
23 A. Just over 27 years.
24 Q. Have you had any specialized training that enables you to
25 do that work?
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47LSSAT3 Losinski - direct
1 A. I have had an extensive internship within the FBI under
2 recognized experts in the field.
3 Q. Have you instructed personnel of the FBI or any other law
4 enforcement agencies regarding the enhancement of audio
5 recordings?
6 A. Yes, I have helped train other people within the FBI. I
7 have also trained people from Secret Service, U.S. Army,
8 Internal Revenue Service. And that is about all I can think of
9 right now.
10 Q. Are you a member of any professional organizations that
11 relate to the work that you do?
12 A. Yes. I am a member of the National Technical Investigators
13 Association.
14 Q. Have you previously testified in court as an expert
15 relating to the enhancement of audio recordings?
16 A. Yes, I have.
17 Q. About how many times?
18 A. I have testified in court approximately 30 times.
19 Q. In what kinds of court?
20 A. Both federal court, state court, military court martial and
21 Canadian general criminal court.
22 MS. BAKER: Your Honor, the government offers Mr.
23 Losinski as an expert in the enhancement of audio recording.
24 MR. TIGAR: May I inquire, your Honor?
25 THE COURT: Yes.
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47LSSAT3 Losinski - direct
1 VOIR DIRE EXAMINATION
2 BY MR. TIGAR:
3 Q. Mr. Losinski, have you published any articles about this
4 subject?
5 A. No, sir, I have not.
6 Q. Do you have any formal academic training in this subject?
7 A. There isn't any school that offers course work in what we
8 do. It's all on the job. I do have a Bachelors degree from
9 Mankato State University in Mankato, Minnesota.
10 Q. Do you know Mr. Herold?
11 A. Yes, I do.
12 Q. You work with him?
13 A. Frequently.
14 Q. Is he a part of your same group that works down there?
15 A. Yes, we are in the same unit.
16 Q. You use a lot of the same equipment and so on?
17 A. For the audio side of it, yes.
18 Q. So is he one of the folks that you work with down there?
19 A. Yes.
20 MS. BAKER: Objection. This is beyond the scope of
21 voir dire.
22 THE COURT: I will allow that.
23 Q. The answer is yes?
24 A. Yes.
25 Q. And when you said that you received instructions from other
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47LSSAT3 Losinski - direct
1 people that are experts in this, is he one of those people?
2 A. Actually I got all my training under Bruce Koenig who was
3 one of the senior examiners in the FBI who since retired.
4 Q. Now, is your lab S lab certified?
5 A. We are in the process of getting S lab certified.
6 Q. So you have been bringing everything up to their standards,
7 right?
8 A. I have been helping write the SOPs, and things like that
9 for certification.
10 Q. And you are familiar with all the equipment and so on that
11 you are going to talk about that you used on these devices,
12 right?
13 A. Yes, sir.
14 MR. TIGAR: All right.
15 We have no objection to him testifying about this,
16 your Honor.
17 THE COURT: All right. The witness can testify.
18 DIRECT EXAMINATION (Continued)
19 BY MS. BAKER:
20 Q. Mr. Losinski, I have handed you two pairs of disks. The
21 one pair is Government Exhibit 1015, which is in evidence, and
22 1015D for identification.
23 The other pair is Government Exhibit 1315 for
24 identification and 1315C for identification.
25 THE COURT: Could you stop just one moment.
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47LSSAT3 Losinski - direct
1 Government Exhibit 1015 and 1015 -- what was the letter?
2 MS. BAKER: D, your Honor.
3 THE COURT: And 1315C.
4 MR. BAKER: Yes, your Honor.
5 Q. Let me ask ask you first about the pair with the lower
6 number. If you would look first at Government Exhibit 1015.
7 Do you recognize that?
8 A. Yes, this exhibit contains my laboratory number, my
9 initials, and my Q designation.
10 Q. Is that a CD containing an audio recording that you
11 received and were asked to process?
12 A. Yes. This was received in our lab back in May of this
13 year.
14 Q. Did you end up processing an audio recording that is on
15 that CD?
16 A. Yes, I did.
17 Q. Let me ask you please to look at the disk that was with it
18 which is marked as Government Exhibit 1015D. Do you recognize
19 1015D?
20 A. Yes, this is the processed copy of item 1015 that I
21 produced back in May of this year.
22 Q. So is 1015 itself what you started with and is 1015D what
23 you created and ended up with?
24 A. Correct.
25 Q. Let me ask you about the work that you did on the recording
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47LSSAT3 Losinski - direct
1 which is on Government Exhibit 1015.
2 Would you tell the jury please, what was the first
3 step that you took upon receiving Government Exhibit 1015 and
4 the audio recording on it?
5 A. Well, the first step after it's unpackaged is just give it
6 a cursory look to make sure it's not damaged in any way. And
7 then I mark the evidence and describe it in my notes, and then
8 I will take it back, put it on an appropriate piece of playback
9 equipment and take a listen to it and see what the problems
10 are.
11 Q. Do you remember what the format is of the recording on
12 Government Exhibit 1015?
13 A. No, I don't offhand.
14 Q. Do you recall based on listening to it after you received
15 it your opinion as to the quality of or any issues with the
16 audio recording that is on that disk?
17 A. The overall quality was fair to good actually. It was a
18 little basey. It had some reverberation. There were a number
19 of tones in it. So there aren't many recordings that we get
20 that can't be enhanced a little bit or cleaned up, make them a
21 little easier to listen to.
22 Q. Do you recall any specific issue relating to the audibility
23 or intelligibility of any of the content of the recording on
24 Government Exhibit 1015?
25 A. Primarily when I listen to tapes or recordings, I am
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47LSSAT3 Losinski - direct
1 listening for noise and seeing what kind of noise is on there
2 and how can I make it better. And content-wise a lot of times
3 I don't remember what is on them, just how to get rid of the
4 noise.
5 Q. Did you make any notes at the time that you listened to the
6 recording which is on Government Exhibit 1015?
7 A. Yes, I did.
8 Q. Is there something in your notes that would refresh your
9 recollection as to any specific issue that you identified in
10 the recording on Government Exhibit 1015?
11 A. There may be.
12 MS. BAKER: Your Honor, may I approach the witness
13 with Government Exhibit 3528K for identification?
14 THE COURT: Yes.
15 Q. I have folded the document over so that a particular page
16 is on the top.
17 Is that a page of notes that you wrote?
18 A. Yes.
19 Q. Let me ask you to read it over to yourself. Let me direct
20 your attention specifically to the bottom portion of the page.
21 A. Okay.
22 Q. Does that refresh your recollection as to any issue that
23 you identified as to the audibility or intelligibility of any
24 portions of that recording?
25 A. Yes, in my notes I have here that there was a near-far
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47LSSAT3 Losinski - direct
1 party problem, which is typical with a phone conversation, or
2 it could be typical of outdoor meetings or something where
3 somebody is standing quite away from the recording device. So
4 there was a near-far party problem which I tried to level out
5 so that you could hear both sides of the conversation. And
6 there were tones that needed some equalization or some shaping,
7 so that to bring up the high end so you can understand it a
8 little more clearly. And there were a number of tones in there
9 that I needed to reduce.
10 Q. In using the phrase near-far party problem, I believe is
11 how you phrased it, what does that mean about the volume or
12 audibility of the different participants in the conversation?
13 A. Well, one of the talkers is very loud and one of them is
14 very soft. And when you are listening trying to concentrate on
15 it, the one might tend to overwhelm you and the other one you
16 are concentrating on, so what I try to do is bring them both to
17 approximately the same level so you don't have to strain to
18 listen to it. You can just hear everything that is being said.
19 Q. Turning back for a moment to the overall sort of quality of
20 the recording, were you able to hear in listening to it any
21 background noise or noise other than the direct conversation
22 between the speakers on the phone?
23 A. Well, I do have in my notes that there were other voices
24 noted and some of them seemed to be children.
25 Q. After having listened to the recording and made that
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1 assessment of it, what did you decide to do to try to improve
2 the quality of it?
3 A. What I ended up doing was I ran it through an equalizer
4 which will take down a little bit of the base but increase some
5 of the higher frequencies in the voice and put it through a
6 band pass filter which just rolls off some of the low rumble
7 and some of the high end hiss that you might hear, and I put it
8 through -- there is a series of notches I put in there to knock
9 down those tones. And also I also took out some reverberation
10 that was present and flattened out the spectrum with an inverse
11 filter which when applied will just flatten out the audio
12 spectrum.
13 Q. In that explanation you used the phrase notches. Does that
14 refer to some type of filtering software equipment?
15 A. Yes, there is a piece of equipment that is commercially
16 available called an MCAP or multi-channel audio processor. It
17 has approximately 13 filters available at any given time and
18 the examiner can pick and choose what filters they want and
19 what order they want them in, and of each of the 13 filters you
20 have a library of filters you can choose from and depending on
21 the noise and how they occur, you can put the filters in any
22 order you want and one of them happens to be a multi-notch
23 which allows us to take 16 different tones if we wanted to at
24 the same time.
25 Q. Now, in performing that processing that you just described,
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1 did you do that by playing the recording which is on the disk
2 marked as Government Exhibit 1015 through those different
3 softwares or pieces of equipment?
4 A. Yes. We typically play it back. Once we have the filters
5 set up for how we want to run them, we will start the
6 recording, run it through the filters, and in this case go into
7 another computer and then generated a processed copy.
8 Q. In what form did you save the processed recording that
9 resulted from the work that you just described?
10 A. I put it in a WAV file format.
11 Q. Why did you put it in a WAV file?
12 A. Well, one, WAV files are getting to be pretty universal
13 across the country. Any Windows-based computer will recognize
14 WAV fils and play them back. So if we are to get tapes or
15 recordings from somewhere in Wyoming, I could put it on a WAF
16 file and send it back to them and they would be able to play it
17 back.
18 Q. Now, when you first saved that output, the processed
19 recording that you were making, in WAV format, was it on the
20 hard drive of a computer?
21 A. The original?
22 Q. After you processed it and had it in processed form was it
23 initially in a computer?
24 A. It was stored temporarily in a computer and then we burn a
25 CD of it.
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47LSSAT3 Losinski - direct
1 Q. And the CD is the one that is there in front of you marked
2 as Government Exhibit 1015D?
3 A. Correct.
4 Q. Is what is on that CD, 1015D, an exact copy of what was
5 temporarily in your computer after you did the work?
6 A. Yes.
7 Q. Once you burned or copied that recording onto the CD, can
8 it be altered in any way on the CD?
9 A. No. Once the disk is formatted and the data is
10 transferred, the disk is finalized and there is an option on
11 there to make it a read only disk, so it cannot be written to
12 again.
13 Q. Now, the work that you did on or starting with the
14 recording which is on 1015, what, if any, effect did your work
15 have on the "original" recording, which is on Government
16 Exhibit 1015?
17 A. None.
18 Q. In the file that resulted from your work, the file that is
19 on Government Exhibit 1015D, what effect, if any, did the
20 processing that you did have on the actual words that were
21 spoken in the recorded conversation?
22 A. None.
23 Q. Let me ask you to turn your attention now to the other pair
24 of disks that are in front of you --
25 THE COURT: This is actually just about noon, so we
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1 should break for lunch now and resume this afternoon at 2
2 o'clock.
3 Ladies and gentlemen, it's very important to continue
4 to follow my instructions. Please don't talk about the case or
5 anything to do with it. Please remember to keep an open mind
6 until you have heard all of the evidence, I have instructed you
7 on the law, and you have gone to the jury room to begin your
8 deliberations.
9 Have a very good lunch. I look forward to seeing you
10 after lunch.
11 All rise please.
12 Follow Mr. Fletcher.
13 (Jury left the courtroom)
14 THE COURT: The witness may step down.
15 I will see all of you at 2 o'clock.
16 (Luncheon recess)
17 (Continued on next page)
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1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 (In open court; jury not present)
4 THE COURT: May I talk to the lawyers, please?
5 (Whereupon, pursuant to Court order, the following
6 pages, Pp. 4176 - 4178 are sealed)
7 (Continued on next page)
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47LLSAT4
1 (In open court)
2 THE COURT: All right. Put the witness on the stand,
3 please.
4 MS. BAKER: Your Honor, shall I bring the witness back
5 in or is there any other matter to be addressed first?
6 THE COURT: No, let's bring the witness in.
7 MR. TIGAR: Your Honor, another preliminary matter:
8 When I am examining the witness, your Honor's
9 gray-colored screen obscures your Honor from me. And thus a
10 couple of times -- since I can't see you -- I don't know what
11 to do about this. When you rule on objections, sometimes I
12 can't hear.
13 THE COURT: I'll try and keep my voice up.
14 MR. TIGAR: Okay. Thank you.
15 THE COURT: Please be seated, all.
16 Good afternoon, ladies and gentlemen.
17 JURORS: Good afternoon.
18 THE COURT: I hope you had a good lunch.
19 JURORS: Yes, thank you, yes.
20 THE COURT: All right.
21 Mr. Losinski is on the stand. Mr. Fletcher?
22 DEPUTY CLERK: Mr. Losinski, you are reminded you're
23 still under oath.
24 THE WITNESS: Yes.
25 THE COURT: Ms. Baker, you may proceed.
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47LLSAT4
1 MS. BAKER: Thank you, your Honor.
2 BY MS. BAKER:
3 Q. Mr. Losinski, before we broke for lunch, I had just asked
4 you to look, please, at the second pair of disks that are on
5 the witness stand there in front of you which are marked for
6 identification as Government Exhibits 1315 and 1315C. Do you
7 recognize Government Exhibit 1315?
8 A. Yes, it contains my laboratory number, initials, and "Q"
9 designation.
10 Q. Is that a CD containing recordings that were sent to you
11 for processing?
12 A. Yes, it was.
13 Q. Did you, in fact, process the recordings that are on it?
14 A. Yes, I did.
15 Q. When did you do that?
16 A. Monday.
17 Q. How many recordings are on Government Exhibit 1315C?
18 A. There were 12.
19 Q. Do you know the format in which those recordings are on
20 government Exhibit 1315C?
21 A. They were in a VOC file format.
22 Q. Before you did any processing of those recordings, did you
23 listen to them?
24 A. Yes, I did.
25 Q. And what do you recall that you noted about the quality of
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1 or any issues with the recordings when you listened to them?
2 A. Those recordings in particular had -- they had a large
3 amount of crackle in them. To me, when I visualize it on a
4 spectrum analyzer, it's white noise, and it's -- not sure
5 exactly where it came from, but it was there.
6 Q. Did you detect any sort of tone at any point during any of
7 the recordings on Government Exhibit 1315?
8 A. Yes, there were about four or five tones on there that I
9 had to reduce down and make it more intelligible.
10 Q. You described earlier when you were testifying about your
11 processing of the recording on Government Exhibit 1015 the kind
12 of process that you followed. Did you follow essentially the
13 same type of process with respect to the recordings on
14 Government Exhibit 1315?
15 A. Yes, basically the same.
16 Q. So therefore you played each of those, quote-unquote,
17 "original" recordings through certain filters or processes?
18 A. Correct. And once I, you know, took a look at the
19 problems, set up the filters, then I would start the recording,
20 play it through the filters I had set up, into another
21 computer; and then consequently burn a CD of it.
22 Q. What effect, if any, did your processing of those
23 recordings have on the, quote-unquote, "original" recordings
24 which are on Government Exhibit 1315?
25 A. None.
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1 Q. You said when you process them you then save them
2 temporarily in a computer?
3 A. Temporarily.
4 Q. And then copied them to a CD?
5 A. Copied them over to a CD.
6 Q. I show you Government Exhibit 1315C for identification. Is
7 that the CD onto which you copied the processed recordings?
8 A. Yes, and it contains my laboratory numbers, initials
9 and "Q" designation.
10 Q. When you copied the processed recordings from the memory in
11 your computer onto that CD, are those exact copies?
12 A. They were the entire session or the entire recording that
13 was on Number 1315, processed, and then put onto 1315C.
14 Q. Once you burned the recordings to the CD which is marked as
15 Government Exhibit 1315C, can those recordings be altered in
16 any way?
17 A. No. The disk was finalized and cannot be written to again.
18 Q. You testified that you began with 13 recordings that are on
19 government Exhibit 1315. Are there also 13 -- sorry -- 12
20 separate recordings on Government Exhibit 1315C?
21 A. Yes, there are.
22 MS. BAKER: Your Honor, may I approach the witness?
23 THE COURT: Yes.
24 MS. BAKER: Your Honor, may I also display to the jury
25 Government Exhibit 1315L, which is in evidence?
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1 THE COURT: Yes.
2 (At this point, Government Exhibit 1315L, in evidence,
3 was displayed to the jury)
4 BY MS. BAKER:
5 Q. Mr. Losinski, I've handed you the original and I'm now
6 showing on the screen a copy of Government Exhibit 1315L. Let
7 me direct your attention to the second column of that exhibit.
8 Does that column set forth the list of the recordings that are
9 on Government Exhibit 1315 namely the recordings that you
10 received for processing?
11 A. Yes, it is.
12 Q. And let me direct your attention to the third column of
13 Government Exhibit 1315L. Is that a list in the third column
14 of the files that are on the CD that you created, Government
15 Exhibit 1315C?
16 A. That's correct.
17 Q. As far as the relationship between the two columns and the
18 pairs of file names that are next to each other, does each file
19 name in the third column, meaning the names of the files that
20 you created, correspond to the name of the file that's
21 immediately to the left of it in the second column?
22 A. Yes. I tried to keep the same numbering sequence that was
23 on the original so there wouldn't be any confusion as to which
24 one was which. And then I also identified it PRC -- stands for
25 processed -- and it was in a WAV file.
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1 Q. And as you just said, in a WAV file. Is that the same file
2 format that you used for the processing of the other recording
3 that you testified about earlier?
4 A. That's what's stored on the CD, correct.
5 Q. As to the spoken word, the conversations that are contained
6 in each of the 12 recordings on Government Exhibit 1315C, what
7 effect, if any, did your processing of the recordings have on
8 those words that are actually contained in those recorded
9 conversations?
10 A. It didn't change any of the words or how they were spoken.
11 MS. BAKER: Your Honor, may I have a moment to confer?
12 THE COURT: Yes.
13 (Off the record)
14 MS. BAKER: Your Honor, I have no further questions
15 for Mr. Losinski. And the government offers Government
16 Exhibit 1015D and Government Exhibit 1315C. More specifically,
17 as to each of the recordings contained on each of those disks,
18 the government offers the portions of the recordings that
19 correspond to the transcripts that the government will be
20 presenting.
21 MR. TIGAR: May I inquire, your Honor?
22 THE COURT: Yes.
23 CROSS EXAMINATION
24 BY MR. TIGAR:
25 Q. Mr. Losinski, when you started out as a signal processing
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1 analyst with the FBI, you were working mostly with audiotape?
2 A. That's correct.
3 Q. And when did you enter the digital era?
4 A. Probably in the mid-80's is when they started using digital
5 recording devices.
6 Q. You've had nearly 20 years of experience with these digital
7 formats, correct?
8 A. That's correct.
9 Q. And you got the originals or you got these two diskettes at
10 different times, one in May and one in July, correct?
11 A. Correct.
12 Q. And you -- with them, you got some information about what
13 the people that sent them to you thought the problems were,
14 correct?
15 A. They send in a communication, yes, to -- their request to
16 get it into our hands.
17 Q. They told you that the translators were having some
18 difficulties hearing?
19 A. I believe that was mentioned once.
20 Q. That's important to you to know what the person sending it
21 to you thinks is the problem, correct?
22 A. No.
23 Q. It's not?
24 A. No.
25 Q. You just start from the beginning?
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1 A. I -- actually, yeah. I mean, I will take a listen to the
2 tape and see where problems exist and proceed on.
3 Q. Let's take this first one in May. It came to you as a VOC
4 file, correct?
5 A. Not really sure.
6 Q. Well, would you take a look, please, at -- do you have
7 Government Exhibit 1315L in front of you, Sir?
8 A. Yes.
9 Q. Would you take a look at that, please, and see if that
10 refreshes your recollection if what you had was a VOC file?
11 MS. BAKER: Objection, your Honor. That exhibit does
12 not relate to the recording that Mr. Tigar is asking about.
13 MR. TIGAR: Oh, I'm sorry. She's right.
14 Q. Well, how about the files on 1315? Do you remember what
15 those were in?
16 A. The one that just came in last week?
17 Q. Yes.
18 A. Those were in a VOC file.
19 Q. VOC file. Let's ask about those, because that's what you
20 have in front of you.
21 Did you know whether or not these files on there had
22 ever been in a different format from VOC?
23 A. No.
24 Q. Did you know whether or not they had ever been compressed
25 and decompressed?
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1 A. No.
2 Q. Do you in your work use compression technology to compress
3 files from one format to another?
4 MS. BAKER: Objection. Relevance.
5 THE COURT: Overruled.
6 A. There are times when we need to do an analogue compression,
7 to get the signal levered. And we're basically compressing it
8 a little bit.
9 Q. When you say an analogue signal compression, that means by
10 applying something like a limiter that changes the amplitude of
11 sine waves, correct?
12 A. Correct.
13 Q. I'm not asking you about the amplitude of sine waves. I'm
14 asking you whether you use a compression program in your work
15 to change digital files, to compress them?
16 MS. BAKER: Objection. Beyond the scope.
17 THE COURT: Sustained.
18 Q. Did you know -- you've already answered that you didn't
19 know whether or not these files were ever in a different format
20 than the one sent you, correct?
21 MS. BAKER: Objection. Asked and answered.
22 THE COURT: Overruled.
23 A. That's correct.
24 Q. You noticed on the second set of files, the ones on 1315,
25 that there was some distortion and crackle at times. Correct?
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1 A. Correct.
2 Q. Now, in your work -- going back to the days with audiotape,
3 all right?
4 A. All right.
5 Q. Magnetic tape?
6 A. Uh-huh.
7 Q. -- Had you heard crackle before?
8 MS. BAKER: Objection. Relevance.
9 THE COURT: Overruled.
10 A. Yeah, there's a lot of different forms of crackle. I mean,
11 it's just -- it's -- a word to describe something that's hard
12 to describe. It's an impulsive noise, and to me it sounded
13 like crackle.
14 Q. And did it sound similar to the kind of crackle that you
15 heard with degraded audiotapes in the days when you used to
16 work with those?
17 MS. BAKER: Objection.
18 THE COURT: Overruled.
19 A. No. Actually, this one was different. I don't recall
20 hearing anything quite like it before.
21 Q. Based on all your experience, you have no way to tell us
22 where in your expert opinion that might have come from?
23 A. I really don't know where it came from. I really don't. I
24 listened to it, and it just -- it was different.
25 Q. As a result of your applying these various filters and
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1 doing the processes that you did, you transformed these files
2 on both of these disks from a VOC format to a WAV format,
3 correct?
4 A. Well, I'm not sure what format the first one was in, the
5 one in May, but the second one was from a VOC file and stored
6 on a WAV file.
7 Q. Let me show you, please, what's been marked as LS-21, and
8 ask you, Sir, if that refreshes your recollection as to the
9 format of the ones you got in May?
10 MS. BAKER: Mr. Tigar, may I know what that
11 document --
12 MR. TIGAR: I'm sorry, that's LS-21.
13