21 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 66 of the trial, June 20, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7580
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 June 20, 2001
9:30 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15 APPEARANCES
16 MARY JO WHITE
United States Attorney for the
17 Southern District of New York
BY: PATRICK FITZGERALD
18 MICHAEL GARCIA
Assistant United States Attorneys
19
20
21 DAVID RUHNKE
DAVID STERN
22 Attorneys for defendant Khalfan Khamis Mohamed
23
Swahili Interpreter:
24 Beston Mwakaling
25
7581
1 (Trial resumes; jury not present)
2 THE COURT: Tomorrow we can't start before 10:00.
3 Some juror would not be available.
4 Any reason not to bring in the jury?
5 MR. RUHNKE: Yes, your Honor. There are a couple of
6 things we would like to take up with the Court before the jury
7 comes in.
8 THE COURT: Yes.
9 MR. RUHNKE: The first issue, I received yesterday
10 from Mr. Bianco, who is the firewall, technical wall in the
11 U.S. Attorney's Office --
12 THE COURT: Yes.
13 MR. RUHNKE: -- a transcript of the proceedings
14 involving Mr. Salim before Magistrate Judge Eaton in October,
15 October 26th I think the day is. It's my understanding, and I
16 want to confirm that with everybody, that is now a document
17 that is available to everybody. There is no longer a sealed
18 aspect of that document.
19 THE COURT: That isn't my understanding.
20 MR. RUHNKE: That's what we need straightened out.
21 THE COURT: My understanding is that it was made
22 available to you for the limited purpose of enabling you to
23 determine whether you wanted to make any further application.
24 MR. RUHNKE: Well, then, your Honor, it is my
25 understanding that Mr. Lind, who is Mr. Salim's attorney, has
7582
1 informed the U.S. Attorney that there is no objection to
2 unsealing that document.
3 The second issue on this same topic is that I would
4 also ask for copies of the letters that have been written
5 by --
6 THE COURT: Unsealing this document makes it
7 available to everyone?
8 MR. RUHNKE: Yes.
9 THE COURT: Including me?
10 MR. RUHNKE: Including you.
11 THE COURT: The whole purpose of the reference to the
12 magistrate was to enable Mr. Salim to make arguments as to why
13 he was dissatisfied with his current counsel without the risk
14 of the judge who would preside at the trial being exposed to
15 those arguments.
16 MR. RUHNKE: In fact, if I recall, the precise nature
17 of the referral, at least reflected in the transcript, was
18 perhaps Mr. Salim wished to discuss strategy that he wanted to
19 pursue that his attorneys were not pursuing. I think --
20 THE COURT: I think that's right.
21 MR. RUHNKE: Having reviewed that transcript, the
22 United States having reviewed that transcript, I think we can
23 all agree that there was none of that that took place during
24 that session.
25 THE COURT: You are saying that Salim's counsel has
7583
1 no objection to it?
2 MR. RUHNKE: That's correct.
3 THE COURT: Does the government have any objection to
4 it?
5 MR. FITZGERALD: Your Honor, I don't know. I haven't
6 seen it. I was advised by Mr. Bianco that he thought from the
7 conversation with Salim's counsel that there was no objection
8 to the government seeing it. Because it seemed like dangerous
9 ground, I asked Mr. Bianco to make sure of that because the
10 last thing I wanted to do was taint anything. It now strikes
11 me that Mr. Lind represents Salim on the assault.
12 THE COURT: Yes.
13 MR. FITZGERALD: Mr. Haber represents Mr. Salim on
14 the underlying case.
15 THE COURT: I think that's correct.
16 MR. FITZGERALD: Which is the concern, and I would
17 just want to make sure that, one, Mr. Salim consents, and
18 Mr. Lind and Mr. Haber all are on board, so we don't have an
19 issue where Mr. Salim then turns and says he did not agree or
20 Mr. Haber did not agree.
21 THE COURT: I think that point is well-taken.
22 MR. RUHNKE: The somewhat frustrating thing about
23 there, I never knew these documents existed until last week
24 and they bear on the assault. They bear importantly on
25 Mr. Salim's state of mind, things he was saying, the degree of
7584
1 upset that he was displaying.
2 THE COURT: Why don't -- since we made such a point
3 to get this jury in early, why can't we do this during the
4 midmorning recess or soot some other point during the day.
5 MR. RUHNKE: Because I understand the government's
6 first witness or earliest witness is going to be
7 Mr. McAllister.
8 THE COURT: Yes.
9 MR. RUHNKE: Who is Mr. Salim's former counsel who
10 was present during this conference, and he will be a witness
11 that I would want to question about what went on in that
12 conference and what kinds of things Mr. Salim was discussing
13 during that conference.
14 I'm a little unsure because there is still an issue
15 as to whether it is a sealed document or not. I also still
16 have not received, though, the letters that were supposed to
17 have been delivered to me with the transcript, the letters to
18 your Honor from Mr. Salim apparently complaining about his
19 counsel is what I understand the subject of them to be.
20 MR. GARCIA: Judge.
21 THE COURT: What is it that you now want? What is it
22 that you are now asking of the Court, if anything?
23 MR. RUHNKE: For permission to utilize those --
24 first, to have access to the letters that I thought were
25 coming; second, to utilize the transcript in the
7585
1 cross-examination of Mr. McAllister.
2 MR. GARCIA: May I make a suggestion?
3 THE COURT: Yes.
4 MR. GARCIA: If we could call Mr. McAllister, we can
5 inquire generally into he was having disagreements with his
6 client, which I'm sure he is prepared to say, even those that
7 were referred to a magistrate, which is a matter of public
8 record at the October 20th transcript suppression hearing.
9 If your Honor determines at a later date that that
10 transcript is admissible or some portion, it can be put in and
11 of course a witness can be recalled, but I don't think it is
12 necessary now to derail the jury and the proof in order to
13 resolve this issue.
14 MR. RUHNKE: I'm not interested in derailing the
15 jury, your Honor. I'm interested in an orderly
16 cross-examination.
17 THE COURT: What is your problem with Mr. Garcia's
18 suggestion?
19 MR. RUHNKE: Of recalling Mr. McAllister at a later
20 date?
21 THE COURT: Yes.
22 MR. RUHNKE: It is that it breaks up the presentation
23 and does not make for a complete presentation on
24 cross-examination.
25 THE COURT: That objection is overruled.
7586
1 MR. RUHNKE: And my inquiry, too, about the letters
2 themselves?
3 THE COURT: I think the point is that Mr. Lind's
4 consent is relevant to the proceedings before Judge Batts, but
5 insofar as the proceedings in this case are concerned,
6 Mr. Haber is the counsel who has some concerns.
7 MR. RUHNKE: The somewhat frustrating thing about the
8 whole process is there is nothing in there that bears on any
9 of those issues, frankly, and it's clearly exculpatory
10 information and it's a problem to not be able to present it in
11 and orderly way. I understand your Honor's ruling.
12 One other issue I wanted to present to your Honor is
13 that there is an issue of a sharpened hairbrush that was used
14 as a weapon.
15 THE COURT: Yes.
16 MR. RUHNKE: The indictment charges directly that
17 Mr. Salim was the person who wielded that weapon, and I would
18 like access to the grand jury material that supports that
19 allegation by the grand jury or the underlying evidence that
20 supports that allegation to be sure that we are able to
21 establish, that we are able to establish to the jury, that
22 there is no contention by the United States that Mr. Mohamed
23 wielded the hairbrush as a weapon.
24 THE COURT: Why isn't the indictment itself
25 sufficient for that purpose?
7587
1 MR. RUHNKE: If the United States will stipulate that
2 the indictment accurately reflects what occurred, that's fine.
3 MR. GARCIA: Your Honor, just so the record is clear,
4 there are two indictments in the assault case, separate
5 indictments from the original one.
6 THE COURT: Excuse me one moment.
7 MR. GARCIA: One of them did in fact allege that
8 Salim in a particular count committed an assault on a guard
9 after the attack on Officer Pepe. Salim attacked a guard --
10 THE COURT: Excuse me a moment. I was distracted by
11 a note which tells me that one juror has still not arrived, so
12 we do have some time.
13 MR. GARCIA: That was a count in the first indictment
14 in front of Judge Batts, separate indictment.
15 THE COURT: Yes.
16 MR. GARCIA: It may have been in the first superseder
17 here that charged that Salim, in the assault on the guards
18 that came up to Officer Pepe's aid, wielded a weapon and
19 struck a guard causing an injury. The weapon then was, to
20 wit, a sharpened brush. There is a superseding indictment in
21 that case which says the same language, removes the brush,
22 just a weapon.
23 To my recollection, and I will check the transcript
24 underlying it, it's just a weapon. The witness cannot
25 describe what this weapon is. He's cut with a weapon. And
7588
1 it's the assault after, it's the --
2 MR. RUHNKE: Your Honor, I'm looking at --
3 THE COURT: Is the claim that the stabbing of Officer
4 Pepe in his eye with the sharpened brush was done by Salim
5 disputed? Is that a disputed fact?
6 MR. GARCIA: Your Honor, it is not known.
7 THE COURT: It is not known. Okay.
8 MR. RUHNKE: In other words, the government is
9 leaving open to argue to the jury that they don't know who
10 stabbed him, it could have been Mohamed, it could have been
11 Salim.
12 THE COURT: Okay.
13 MR. GARCIA: That's accurate.
14 MR. RUHNKE: Your Honor, I'm referring to Count 314
15 of what I think is the superseding indictment that Mr. Garcia
16 is referring to.
17 THE COURT: Yes.
18 MR. RUHNKE: I don't know if I'm accurate or not. Is
19 that it?
20 MR. GARCIA: That's the first one, yes.
21 MR. RUHNKE: First indictment. It says --
22 THE COURT: This is the indictment before Judge
23 Batts?
24 MR. GARCIA: No, Judge. That's the indictment in
25 front of your Honor.
7589
1 THE COURT: Before me. Yes.
2 MR. RUHNKE: That's (S10) before your Honor. Count
3 314 alleges on or about November 1, 2000, Mamdouh Mahmud Salim
4 assaulted a corrections officer and it contains the following
5 language: "Mamdouh Mahmud Salim, the defendant, after
6 Corrections Officer 1 was stabbed in the eye with a sharpened
7 comb at the Metropolitan Correction Center, New York, New
8 York, stabbed with a weapon made from a sharpened brush a
9 corrections officer known to the grand jury 'Corrections
10 Officer 2,' who responded to the scene of the earlier
11 stabbing."
12 What I'm asking for is the underlying information
13 that supports the grand jury's finding that that was true by
14 probable cause. The grand jury returned this indictment.
15 THE COURT: This is the second stabbing?
16 MR. RUHNKE: Yes. There is an allegation, your
17 Honor, that when the officers responded, a sharpened hairbrush
18 which is recovered, analyzed, photographed, I assume will be
19 testified --
20 THE COURT: This is not the comb.
21 MR. RUHNKE: No.
22 THE COURT: I see. We are dealing with two sharpened
23 instruments?
24 MR. GARCIA: Yes.
25 MR. RUHNKE: Yes.
7590
1 THE COURT: I'm sorry. I'm out of context. Okay.
2 MR. RUHNKE: What I am looking for is whatever
3 information there is in the possession of the United States
4 that was presented to the grand jury which caused them to
5 return that charge, that there is probable cause to believe
6 that it was Salim who used the hairbrush.
7 I gather the United States would leave it unsettled
8 and open to speculation that maybe it wasn't Salim and maybe
9 it was Mohamed, when the grand jury, at least in one version
10 of this indictment, made the specific finding that Salim is
11 the person who wielded the hairbrush among the information.
12 THE COURT: You want the testimony before the -- I
13 assume this is the testimony of some guard or some witness,
14 and you want that portion of the presentation to the grand
15 jury which relates to the hairbrush stabbing?
16 MR. RUHNKE: Yes, and any documents that underlie the
17 allegation, including any interviews that were done with
18 witnesses. Perhaps this was presented to the grand jury by a
19 summary witness. I don't know.
20 It certainly seems fair if the United States is going
21 to suggest that perhaps Khalfan Mohamed is the one who weiled
22 the sharpened hairbrush, weapon number two, when the
23 information presented to the grand jury is not that. It
24 should not be a controversial matter for the government to
25 recognize an inconsistency of those positions and Brady nature
7591
1 of the inquiry.
2 THE COURT: Mr. Garcia?
3 MR. GARCIA: Your Honor, this is the first we're
4 hearing of this request. Without getting into what was said
5 before the grand jury, if the government could have until
6 lunch or perhaps after court today to review the testimony and
7 provide that.
8 THE COURT: Yes. All right.
9 MR. RUHNKE: Thank you, your Honor.
10 THE COURT: All right. So now we will proceed. The
11 jury may come in.
12 So we are going to have another victim impact
13 witness, then you are going to call Mr. McAllister.
14 MR. GARCIA: Yes, Judge, and then Bureau of Prison
15 personnel.
16 THE COURT: And Bureau of Prison personnel. All
17 right.
18 And Mr. Ruhnke, if you want to defer
19 cross-examination in whole or in part of Mr. McAllister until
20 these matters are further resolved, you may do so.
21 MR. RUHNKE: Likely in part, not in whole.
22 THE COURT: Yes.
23 Just a thought which I will throw out for everyone's
24 further consideration, including my own: Whether it might not
25 simplify matters vis-a-vis Salim for me now to determine that
7592
1 I will not preside at the Salim trial and that would -- that
2 might make that material available to the whole world except
3 me and I will not feel deprived.
4 MR. FITZGERALD: Your Honor, I think I can simplify
5 your simplification. I received a note that indicated
6 Mr. Bianco spoke to Richard Lind, who consents to the material
7 being public, as I understand it, and he had spoken to his
8 client, who also consents, and Mr. Bianco just spoke to
9 Mr. Haber, who also agreed.
10 THE COURT: All right.
11 MR. FITZGERALD: So I think that certainly we can
12 then see, if there is any additional material the government
13 would like to review it, but I think it's not going to be a
14 retractable problem.
15 THE COURT: The jury is lining up.
16 MR. RUHNKE: Your Honor, I ask this rhetorical. I'm
17 sure the answer is yes. Has your Honor given thought to the
18 Fourth of July holiday?
19 THE COURT: We won't sit on the Fourth of July. I
20 think we'll sit on the 3rd and the 5th, which makes me no more
21 demanding than the Senate Majority Leader.
22 MR. FITZGERALD: Your Honor, while we're waiting,
23 there is a matter I won't discuss in open court, a sealed
24 matter the government was preparing a letter on. It is being
25 cite-checked. I don't think there is a reason to hold up, but
7593
1 as soon as it is done it is going to be copied and brought
2 over. I told Mr. Ruhnke the substance of it.
3 Thank you.
4 (Jury enters)
5 THE COURT: Good morning.
6 THE JURY: Good morning.
7 THE COURT: I understand in terms of the pick-up time
8 tomorrow that you want it a little later, and you can work
9 that out with the marshal, and that's fine. We won't attempt
10 to start tomorrow before 10:00.
11 The government may call its next witness.
12 MR. FITZGERALD: Thank you, Judge. The government
13 calls Kulwa, Rahadhani. He will be using the interpreter.
14 KULWA RAHADHANI MBOGO,
15 called as a witness by the government,
16 having been duly sworn, testified
17 through the interpreter as follows:
18 DIRECT EXAMINATION
19 BY MR. FITZGERALD:
20 Q. Good morning, sir.
21 A. Good morning.
22 Q. Is your name Kulwa Rahadhani Mbogo?
23 A. Yes.
24 Q. On August 7th, 1998 when the American embassy was bombed
25 in Tanzania, was a close relative of yours killed?
7594
1 A. Yes.
2 Q. Who was that?
3 A. Doto Rahadhani Mbogo.
4 Q. Can you tell the jury who Doto was, how he was related to
5 you?
6 A. He's my brother.
7 Q. Let me approach you with what has been premarked as
8 Government Exhibit 3032, a photograph, and ask you to look at
9 the photograph and tell us if that's a picture of your brother
10 Doto?
11 A. Yes.
12 Q. Do you know when the picture was taken?
13 A. August 1998.
14 Q. Were you and Doto twins?
15 A. Yes.
16 Q. Can you tell us how many other children were in the family
17 besides you and Doto?
18 A. We are five of us, two girls and three boys, including
19 myself.
20 Q. And can you tell us the names of your brothers and sisters
21 and how old they are?
22 A. Yes. Kassim, 28 years old; Majalawe, 20 years old, Upenda
23 do, 19; Rehema, 17; myself, I'm 30 years old.
24 Q. And when did your mother die?
25 A. 1994.
7595
1 Q. Was she killed in a plane crash in 1994?
2 A. Yes.
3 Q. And when did your father pass away?
4 A. In '97.
5 Q. After your father passed away, who took charge of raising
6 your family?
7 A. The one who was taking care is my relative Doto.
8 Q. And can you tell the jury how far Doto went in school?
9 A. Standard 7, which is grade 7.
10 Q. And what did he do for work?
11 A. He was working at the embassy as a gardener.
12 Q. And when your brother was working at the embassy as a
13 gardener after your parents had passed away, how was the
14 family doing financially in terms of supporting itself?
15 A. He was the one who was helping our family because I didn't
16 have no job.
17 Q. How long did Doto work at the embassy as a gardener?
18 A. Five years.
19 Q. What was the relationship like between you and Doto?
20 A. We was getting along with each other very well and when he
21 comes back at home, we was doing carpentry together, fixing
22 windows, doing other works of carpentry together.
23 Q. And how did he get along with your other brothers and
24 sisters?
25 A. He got along very well because he was very polite, and he
7596
1 was getting along very well with them and he was helping them
2 a lot.
3 Q. And what did Doto like to do for fun?
4 A. He liked to go to play soccer and to go to cinemas, the
5 movies.
6 Q. And what position did Doto play in soccer?
7 A. He was player number 7.
8 Q. What side of the field was that on?
9 A. On the right side.
10 Q. And did you also play soccer with him?
11 A. Yes, I play number 11.
12 Q. And was Doto planning to be married in August -- directing
13 your attention to August 1998, did Doto have plans to be
14 married?
15 A. Yes.
16 Q. Who was he marrying?
17 A. This one girl called Martha.
18 Q. How old was Martha?
19 A. I can't remember how old she was.
20 Q. And when were they planning to be married?
21 A. They was planning to get married in September 1998.
22 Q. And did they have plans to have children?
23 A. Yes.
24 Q. How many children did they plan to have?
25 A. Two kids.
7597
1 Q. And did Doto have a son from a prior relationship?
2 A. Yes.
3 Q. And how old is that son?
4 A. Nine years old.
5 Q. And is the son's mother alive?
6 A. His mother died.
7 Q. Directing your attention to August 7th, 1998, how did you
8 hear about the bombing?
9 A. That day I was home, and Doto came in the morning around
10 9:30 to pick up chapati, which is like a bread, to take to
11 work. He came and he said, I'll be back later, which is the
12 normal way for him, coming back in the afternoon for lunch.
13 And later on we heard had a big explosion we never heard
14 before, and we was just wondering what is happening.
15 At that moment after we heard that explosion, we just
16 went to look to find where there explosion happened. And I
17 went to the embassy and we found out the explosion, what
18 happened, and we looked and we couldn't go there. And then we
19 went back home, and one of his friend, co-worker, asked us,
20 did you see your brother? We said no. He said we should go
21 to the hospital to look for him, and then we decided to go to
22 the hospital to look for him.
23 At that day we went to, myself, I went to Aga Khan
24 Hospital and Muhimbili Hospital to look for him. Until 10:00
25 we couldn't find him, so then we decided we wanted to go to
7598
1 the police station to report that our brother, we can't find
2 him. And we was informed and told by the police station that
3 we should go back home and wait for tomorrow and to start
4 looking for him. And the next day we went, all of us again,
5 to the Muhimbili Hospital. We look for him until the
6 afternoon and we couldn't find him and then we decide to go
7 back home.
8 And we planned to come back at 3 p.m., and at the
9 hospital before 3:00, one of the relatives was released at the
10 hospital and he was told to look for the names who had been
11 injured and for people who had been dead and he went there to
12 look for the name of Doto. And he was able to go to the
13 hospital and he was able to identify Doto and another friend
14 who died also in that bomb, and they came back home to inform
15 us that Doto had died.
16 And we left to go to the hospital to the mortuary to
17 look for the body of Doto, and I was able to identify my
18 relative that is the body of Doto and then we went back home
19 to start the funeral. Before that, we couldn't prepare for
20 funeral because we didn't know what exactly what happened to
21 him. Then we started preparing for a funeral.
22 That's what happened until the day we buried our
23 friend.
24 MR. FITZGERALD: And your Honor, I neglected to offer
25 Government Exhibit 3032, the photograph, and I would like to
7599
1 offer it at this time and display it.
2 THE COURT: Yes, you may.
3 (Government Exhibit 3032 received in evidence)
4 BY MR. FITZGERALD:
5 Q. Can you tell the jury what impact the loss of your brother
6 Doto has had upon your family?
7 A. My life right now is difficult, because Doto is the one
8 who had all the expertise. He was the one who was helping the
9 family. He was the one who was helping me to do, to fix the
10 windows for construction. He was the one who had so many
11 expertise to do things. I don't have any expertise. He was
12 the one who was helping me with everything.
13 Q. Who is supporting the family now?
14 A. I'm struggling myself with them.
15 Q. And who is living with you?
16 A. He's living with them. They're living with me.
17 Q. And those would be all your brothers and sisters?
18 A. Yes.
19 Q. And where is Doto's son living?
20 A. I live with him.
21 Q. And did some of your sisters have to leave school?
22 A. Yes, even Doto, Doto's son, he's not going to school.
23 Q. And how is Doto's fiance, Martha, how has the loss of Doto
24 impacted her?
25 A. At the beginning, we stay with her at her house and we
7600
1 stay for a while and we ask her to stay with us, but she's
2 decided to go back home and now she's living with somebody
3 else.
4 Q. What has the emotional impact been on you of the loss of
5 your brother?
6 A. My life has been difficult because everything I was doing,
7 we was doing together. And most of the time we was together,
8 and our brothers and sisters, always they see us together, the
9 two of us, but now they don't see us anymore together. And we
10 look alike a lot. Life is difficult.
11 MR. FITZGERALD: I have nothing further, your Honor.
12 MR. RUHNKE: No questions, your Honor.
13 THE COURT: Thank you. You may step down.
14 (Witness excused)
15 MR. GARCIA: The government calls Paul McAllister.
16 THE COURT: You may proceed.
17 MR. GARCIA: Paul McAllister.
18 PAUL McALLISTER,
19 called as a witness by the government,
20 having been duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. GARCIA:
23 Q. Good morning, Mr. McAllister.
24 A. Good morning.
25 Q. What do you do for a living?
7601
1 A. I'm an attorney.
2 Q. And in the course of your work as an attorney, did you
3 represent a client named Mamdouh Mahmed Salim?
4 A. Yes.
5 Q. And generally what were the charges Mr. Salim was facing?
6 A. Conspiracy to commit terrorist acts.
7 Q. Approximately when did you become Mr. Salim's lawyer?
8 A. I began my representation on December 21st of 1998.
9 Q. Were you also working with other lawyers who represented
10 Mr. Salim?
11 A. Yes.
12 Q. And could you tell us their names?
13 A. Charles Adler and George Goelzer.
14 Q. Mr. McAllister, you do not represent Mr. Salim today?
15 A. No.
16 Q. And approximately what date were you relieved from that
17 representation?
18 A. I think November 8th of 2000.
19 Q. Fair to say, then, you represented Mr. Salim for
20 approximately a little short of two years?
21 A. Yes.
22 MR. GARCIA: And if we could have displayed for
23 Mr. McAllister only Government Exhibit 4059.
24 Q. Do you recognize that individual?
25 A. Yes, that appears to be Mr. Salim.
7602
1 MR. GARCIA: If we could, I would offer Government
2 Exhibit 4059 into evidence, Judge.
3 MR. RUHNKE: No objection.
4 THE COURT: Received.
5 (Government Exhibit 4059 received in evidence)
6 BY MR. GARCIA:
7 Q. Mr. McAllister, could you describe for us physically
8 Mr. Salim? About how tall was he?
9 A. I would say approximately five-ten.
10 Q. Could you describe generally his build?
11 A. He's somewhat slim now, built -- I would say medium build.
12 Q. And directing your attention to November 1st of 2000.
13 A. Yes.
14 Q. Did you attempt to visit your client Mr. Salim at that
15 time?
16 A. I did.
17 Q. Where did you go?
18 A. I went to MCC, the Metropolitan Correctional Center, here
19 in Manhattan.
20 Q. Would that be in lower Manhattan next door to the
21 courthouse?
22 A. Yes.
23 Q. And approximately what time did you arrive at the MCC?
24 A. I arrived at the facility sometime after 8 a.m., the
25 precise hour I don't recall.
7603
1 Q. Did any of your co-counsel join you later that day in the
2 visit?
3 A. Eventually, yes.
4 Q. And who would that be?
5 A. Charles Adler.
6 Q. And your best recollection, how did that meeting with
7 Mr. Salim come about that morning?
8 A. Well, I know that Charles Adler and I had planned to come
9 and see him because we were involved in trying to prepare for
10 the upcoming trial, and the details of the planning I don't
11 recall precisely.
12 Q. And you mentioned upcoming trial. Do you recollect
13 approximately when that trial was to start?
14 A. Yes, January, early January of this year.
15 Q. 2001?
16 A. Yes.
17 Q. Is it a fair statement, Mr. McAllister, that you had been
18 having some disagreements with Mr. Salim over your
19 representation at that time?
20 A. That is fair to say.
21 Q. And were there occasions in the fall of 2000 when in fact
22 Mr. Salim refused to see you at the MCC?
23 A. Yes, there were.
24 Q. On November 1st, 2000, did there come a time eventually
25 that Mr. Salim did agree to see you?
7604
1 A. Yes.
2 Q. Let's go back to your arrival at the MCC. Where did you
3 go after you entered the prison facility?
4 A. Well, after I cleared the process downstairs, I ultimately
5 arrived at the housing unit on 10 South where Mr. Salim was
6 incarcerated.
7 Q. To get to the 10 South Unit when you were in the MCC, what
8 do you have to do?
9 A. Well, you first have to, after going through the lobby and
10 having your briefcase or whatever other items you have x-rayed
11 and having passed through a metal detector, you pass through
12 another door after signing a book, indicating the time of your
13 arrival initially, then you pass through one door, you go down
14 a corridor, you pass through a second door that's
15 electronically locked, a heavy metal door, and then you have a
16 third door. And when you arrive beyond the third door, then
17 you are outside by the elevators ready to go up to the ninth
18 floor.
19 Now, you take the -- one takes the elevator to the
20 ninth floor and then there was yet another metal door to pass
21 through. Then there are -- there's a gate, an iron-barred
22 gate. One passes through that and then you're in the 9 South
23 facility.
24 Then there is a small flight of stairs that you go up
25 and then there is yet another electronic metal door. You pass
7605
1 through that into a small vestibule, and there is yet another
2 metal door that is unlocked by whoever is on duty inside.
3 And you pass through that, and then you are on the
4 housing unit.
5 Q. The 10 South Housing Unit?
6 A. 10 South.
7 Q. Do you sign another log when you get into the 10 South?
8 A. Yes. When you arrive at that final destination, you sign
9 another log. There are, I think, three logs that are signed
10 and that final one is right up there at 10 South.
11 Q. Do you recall approximately what time you signed in that
12 log on the morning of November 1?
13 A. I believe it was 8:55 a.m.
14 Q. And when you got through that second door and into the 10
15 South Unit, who did you see? Who was the first person you
16 saw?
17 A. Officer Pepe.
18 Q. And did you know Officer Pepe prior to that date?
19 A. Yes.
20 Q. About how many times did you see him?
21 A. Many times. I had seen him many times. He was --
22 Q. I'm sorry. Continue.
23 A. Over the, I think at least, I think as much as a year he
24 was the person who was up there other than on his days off on
25 10 South. He had been up there for quite some time.
7606
1 Q. And at this time you first arrived on 10 South, were you
2 alone or were you with Mr. Adler?
3 A. I was alone.
4 Q. And do you remember any conversation you had with Officer
5 Pepe after getting into the unit?
6 A. Yes. When I arrived, Officer Pepe initially opened up the
7 large cell that's a recreation, used as a recreation area for
8 the inmates. It's just to the right of the door that you
9 enter. And we made some small talk, and then Officer Pepe
10 said that he would go back to where Mr. Salim was housed and
11 see whether or not he would come to a counsel visit.
12 After that, after Officer Pepe went back to see
13 Mr. Salim, Officer Pepe returned to me and said that the
14 client was considering a counsel visit, he hadn't made up his
15 mind. Then Officer Pepe and I engaged in additional talk and
16 Officer Pepe said that he would wait ten minutes and then go
17 back to the client so that my time wasn't wasted waiting for
18 him to decide whether he would see me or not.
19 So Officer Pepe did indeed go back again the second
20 time, and he returned, Officer Pepe returned to me and said
21 that the client was praying so that Officer Pepe could not
22 interfere with him or converse with him. So we, Officer Pepe
23 and I, chatted some more and then ultimately Mr. Adler
24 arrived.
25 And then Officer Pepe went back for the third time
7607
1 and returned to Mr. Adler and myself and said that the client
2 had agreed to have a counsel visit, but that he, the client,
3 Mr. Salim, needed to do something on a computer. And Officer
4 Pepe said that he suggested to the client, to Mr. Salim, if
5 Mr. Adler and I would approve of this, that we should all just
6 go into what was characterized euphemistically as a computer
7 room. That was a cell that was divided by a partition. On
8 one side was a computer, on the other side were a couple of
9 chairs. And I guess Officer Pepe asked that because it's
10 rather cramped, so he wanted to make sure it was okay with us
11 and we said sure.
12 So then Officer Pepe placed myself and Mr. Adler in
13 one side of the cell unit and unlocked the door, and then went
14 to get Mr. Salim.
15 MR. GARCIA: At this time, Judge, I would like to
16 read a stipulation and offer it as an exhibit.
17 It has hereby been stipulated and agreed between the
18 parties as follows: Government Exhibit 4000 is a fair and
19 accurate diagram of the 10 South Housing Unit at the
20 Metropolitan Correctional Center, 150 Park Row, New York, New
21 York.
22 It is further stipulated and agreed that this
23 stipulation may be received into evidence as a government
24 exhibit at trial. And I would offer the stipulation,
25 Government Exhibit 4065, as well as the underlying diagram,
7608
1 Government Exhibit 4000.
2 THE COURT: Received.
3 (Government Exhibits 4000 and 4065 received in
4 evidence)
5 MR. GARCIA: And if we could have Government Exhibit
6 4000 displayed on the screens, please.
7 Q. Mr. McAllister, let's just step back for a minute. Look
8 at the diagram that's now in front of you, and I direct your
9 attention to the left, your left side of the diagram as you
10 are looking at the diagram.
11 A. Yes.
12 Q. Is that the entranceway where you entered the unit that
13 morning and first saw Officer Pepe?
14 A. Yes.
15 Q. Now, you mention that he first took you to a larger room,
16 I think you said the recreation room. You see that on the
17 diagram?
18 A. Yes, that's directly to the right and it has "recreation"
19 written in it, printed in it.
20 Q. In the lower left-hand corner of the diagram as you are
21 looking at it?
22 A. Yes.
23 THE COURT: Left-hand corner?
24 MR. GARCIA: Lower left, yes.
25 THE COURT: Okay.
7609
1 Q. You mentioned, Mr. McAllister, that you were taken to what
2 was called a computer room, I believe you referred to?
3 A. Yes.
4 Q. Could you show us that on Government Exhibit 4000?
5 A. Yes. As you enter, if you look to the left, as you are
6 entering you see what is, I believe, a desk, and if you go all
7 the way to the left again as you enter, this is toward the top
8 of the diagram, you see where it says "attorney visit" and
9 "inmate visit," that second room towards the top, the computer
10 was located in what I think was located in what is
11 characterized on the diagram as "attorney visit" and what is
12 characterized as "inmate visit"; just below that is where
13 Mr. Adler and I were placed by Officer Pepe.
14 Q. So from the top of the diagram, looking down, there's four
15 rooms, attorney visit, inmate visit, attorney visit, inmate
16 visit, it would be the top two rooms in that row?
17 A. That's correct.
18 Q. And where were you placed in the inmate visit room, the
19 second room?
20 A. Yes, what is characterized as "inmate visit" on the
21 diagram.
22 Q. Is there a window in the door to that room?
23 A. Yes, there is.
24 Q. Did there come a time that Salim was brought to this area?
25 A. Yes.
7610
1 Q. And could you describe that for us?
2 A. Mr. Pepe brought Mr. Salim to what is characterized as the
3 attorney visit room. I recall that Mr. Salim was cuffed from
4 behind. I don't recall who carried Mr. Salim's material, but
5 in any event, Mr. Salim was placed in the attorney visit room.
6 He then backed up against the wall. There is a slot,
7 a fold-down slot, and he positioned his hands so he could be
8 uncuffed. And then Officer Pepe passed through the slot, I
9 believe, whatever material Mr. Salim had brought to the
10 counsel visit.
11 Q. And what happened after Mr. Salim was uncuffed?
12 A. After Mr. Salim was uncuffed, he began to put CD-Roms in
13 the computer, and he seemed agitated about the fact that they
14 weren't launching, they weren't operating properly. And that
15 had been one of the things that he had been complaining about.
16 He spoke very little.
17 He, as I said, seemed somewhat agitated and he was
18 gesturing toward the machine as though, see what I mean, when
19 he was showing us the malfunctioning or the absence of any
20 functioning with respect to the CDs.
21 Q. And while he was doing this, while he's in the room with
22 the CDs and the computer, do you recall what he was wearing?
23 A. He had on an orange jumpsuit.
24 Q. And at this time are you locked in the attorney -- in the
25 inmate, what's labeled "inmate visiting room" here?
7611
1 A. Yes.
2 Q. And would it be safe to say Mr. Salim is locked in the
3 attorney visiting room?
4 A. Yes.
5 Q. And you mentioned that you had a window in the door of the
6 inmate visiting room; is that right?
7 A. Yes.
8 Q. And could you see from your vantage point there whether
9 there are any other visits going on at the time on that floor?
10 A. Ultimately, I did, yes. There was another visit going on
11 in the lower, in the cell that's marked "recreation" in the
12 lower left-hand corner of the diagram.
13 Q. And do you recall who was in that room?
14 A. Yes, I do. Two attorneys, Sam Schmidt, Josh Dratel, and
15 their client, Mr. El Hage.
16 Q. You were describing your visit with Mr. Salim when he was
17 putting this, trying to load the CDs on the computer. Did
18 there come a time when Salim indicated that he wanted to leave
19 that room?
20 A. Yes. I don't recall exactly how he conveyed that, but
21 there did come a time when he conveyed to Officer Pepe that he
22 wished to leave, and at that point Officer Pepe I think asked
23 Mr. Salim whether or not the counsel visit was over and
24 Mr. Salim indicated that it was not, that he needed to return
25 to his cell and then bring back additional CDs. And in fact,
7612
1 I think Mr. Adler, in the course of this exchange, asked
2 whether or not we could now meet in one of the larger areas,
3 but Mr. Salim indicated that there was more work to be done on
4 the computer so that we stay where we were and we continue to
5 meet there.
6 Q. And did Salim in fact leave the attorney visit room?
7 A. Yes, he did.
8 Q. And could you describe for us how that happened?
9 A. Well, initially he passed his legal material, a stack of
10 material through the slot. Mr. Pepe took it and I think
11 placed it on a chair or the desk, and while Mr. Pepe, Officer
12 Pepe was doing that, Mr. Salim removed his jumpsuit, stood up
13 and sort of balled it up in front of him, and then Officer
14 Pepe opened the door for Mr. Salim to depart.
15 Q. And prior to removing Mr. Salim from the room, did Officer
16 Pepe handcuff Mr. Salim?
17 A. He did not.
18 Q. And did you see him handcuff or put Mr. Salim in any
19 restraints after he left the room?
20 A. I did not see him put him in any restraints.
21 Q. Did you observe anything that went on in that area outside
22 the attorney visiting room after Mr. Salim and Officer Pepe
23 were out in that area?
24 A. Yes. Officer Pepe was very briefly engaged in some
25 activity I think around the desk. I didn't pay attention to
7613
1 what that was. And Mr. Salim strolled over to the large
2 recreation cell and seemed to have a brief conversation with
3 the people who were in there. I couldn't hear any of that.
4 And then Officer Pepe approached Mr. Salim from behind and
5 indicated -- I didn't hear that either, but obviously
6 indicated to Mr. Salim that he should return to the housing
7 unit.
8 And then I observed Mr. Salim walk down the corridor
9 toward his cell. Well, depart in that direction. I couldn't
10 see because that was around the corner. And Officer Pepe was
11 directly behind him.
12 Q. And on the diagram, again Government Exhibit 4000, would
13 that be in the direction toward Cell 2, Cell 3 on the bottom
14 of the diagram?
15 A. Yes.
16 Q. And from your visits to the MCC, did you know which cell
17 Mr. Salim was assigned to at this time?
18 A. My recollection was that he was assigned to the last cell
19 on that unit.
20 Q. And would that be on this diagram again Cell 6, on the top
21 right past the center of the diagram in the middle, if you
22 recall?
23 A. Well, I'm sorry to say I can't see Cell 6 on this.
24 Q. Very top.
25 A. Oh, yes, that's where it was, yes. Yes.
7614
1 Q. After Mr. Salim and Officer Pepe went around towards Cell
2 2, what do you recall happening next?
3 A. Well, I recall that a great deal of time seemed to be
4 going by because it would take, it seems to me, if I recall
5 correctly, a minute or less to get back to that cell because
6 it's not that large a facility.
7 So Mr. Adler and I began to talk about the time that
8 was elapsing, and at some point I became aware of the phone
9 ringing a great deal, and Officer Pepe -- the phone is located
10 on the desk that is depicted here in the diagram which is just
11 across almost, well, diagonally across from where we were
12 situated, and we could see that desk from the window that was
13 in the cell. So that we became aware of the phone ringing and
14 then more time going by and nobody coming to answer that
15 phone.
16 And then there are monitors as well on top of that
17 desk and beneath it as well, and we became, Charles Adler and
18 I then became aware of a great deal of activity that was
19 occurring down on 9 South, a lot of people congregating.
20 And then those people who had congregated down there,
21 the prison officials, came up the small staircase that I
22 described earlier and we became aware of their presence inside
23 the vestibule that I described just outside the final door.
24 And there was a lot of shouting and there was banging on the
25 door. It took some minutes before they apparently were able
7615
1 to enter.
2 Q. And did they in fact then enter the --
3 A. Ultimately they did get in.
4 Q. Mr. McAllister --
5 THE COURT: Could you see that or just hear it?
6 THE WITNESS: No, I saw that because there is also a
7 little window, there is a window in our cell, as I said, but
8 there is also a little window in that door. The guard looks
9 and sees who is out there before opening it. So I could see
10 people in that vestibule.
11 Q. You can see people in the vestibule and the door opens and
12 people come in, is that fair?
13 A. Yes.
14 Q. Your best estimate from the time that Mr. Salim and
15 Officer Pepe went towards Cell 2 to the time the Bureau of
16 Prison people came through the inner door onto the floor,
17 about how long had elapsed?
18 A. My best recollection was that was a good 15 minutes.
19 Q. And what happened after the Bureau of Prison personnel
20 went through the inner door and onto this 10 South Unit?
21 A. Well, I observed a large number of people, Bureau of
22 Prisons people, enter that housing area. They were sort of in
23 a crouched position, and a good number of them went down the
24 corridor that Officer Pepe had gone down, out of my line of
25 vision.
7616
1 And then a significant number sort of fanned out in
2 the direction toward the attorney visit cell at the top, and
3 the ones that I could observe, the prison officials that I was
4 able to observe began rattling all of the doors, in fact, our
5 door as well and at least two times. And once they, I guess,
6 determined that all those doors were locked, they also
7 disappeared in the same direction that Officer Pepe and
8 Mr. Salim had gone and the other officers had gone.
9 Q. And did you hear any noise at this time, any yelling?
10 A. I did not.
11 THE COURT: Excuse me. May I ask you a question?
12 To go from the attorney visiting area Salim was in so
13 it is --
14 MR. RUHNKE: Your Honor, we are having trouble
15 hearing you.
16 THE COURT: Excuse me?
17 MR. RUHNKE: We are having trouble hearing you
18 because you are not near your mike.
19 THE COURT: When Salim left the attorney visiting
20 area.
21 THE WITNESS: Yes.
22 THE COURT: And you say that he was housed in Cell 6?
23 THE WITNESS: Yes.
24 THE COURT: Does he go in a clockwise or
25 counterclockwise direction?
7617
1 THE WITNESS: He is going in a counterclockwise
2 direction. The diagram is so busy, it is difficult for me to
3 tell, but it is really an inverted L. So when he leaves that,
4 when he leaves that attorney visit room, he walks directly
5 toward the bottom of the diagram and then makes a left turn.
6 And when he makes that left turn going toward his cell, that's
7 when he is out of my line of vision.
8 BY MR. GARCIA:
9 Q. So he's going --
10 A. He's walking from the top of the diagram toward the bottom
11 of the diagram.
12 Q. Towards Cell 2?
13 A. Yes, towards Cell 2, and then making what I guess would be
14 a left turn to him and Officer Pepe and going down that
15 corridor towards the right side of the diagram.
16 THE COURT: Past the lieutenant's office, past the
17 lab library?
18 THE WITNESS: Yes.
19 BY MR. GARCIA:
20 Q. And this square object right across from the bottom,
21 inmate visiting room, you know what that is on the diagram, if
22 you know?
23 A. I'm sorry, across from the visiting room?
24 Q. The bottom, inmate visiting room, there is a little
25 square.
7618
1 A. Oh, I don't know. I don't recall what that is, actually.
2 Q. Mr. McAllister, after you saw the guards enter, check the
3 doors in the area you were in, what do you remember seeing
4 next?
5 A. As I said, the guards who were checking the doors then
6 also disappeared for a matter of moments, and the next thing I
7 remember seeing is two guards dragging a person who I believed
8 to be Mr. Salim, and he may or may not have been unconscious,
9 but he was certainly limp, and he was face-down and his arms
10 were at his sides. He was being dragged.
11 He was dragged around the corner and the guards who
12 were dragging him stopped very close to where the window was
13 in the cell that Mr. Adler and I were located, and there was
14 sort of a trail of blood as well beneath what I believe was
15 Mr. Salim. Then I observed one of the guards that had his
16 back to me, but closest to the cell, remove a key, a small,
17 sort of blunt key from his key ring and jab what I again think
18 was Mr. Salim in the corner of the eye. And then there was a
19 blood spurt that occurred.
20 And then the officers continued to drag Mr. Salim to
21 what is the very top of that diagram on the left to sort of
22 almost the end of the corridor.
23 Q. And what do you recall seeing after that?
24 A. Well, after that, shortly thereafter, I saw Officer Pepe
25 walking, being escorted out by four people, two just slightly
7619
1 in front and two in the back. He was covered with blood and
2 there was an object protruding from his eye.
3 Q. And what happened after you saw Officer Pepe walking by?
4 A. Well, there was a lot of, clearly there was a lot of
5 commotion, but ultimately someone opened the cell that we
6 were, Mr. Adler and I were located in and took our names and
7 phone numbers and let us out.
8 Q. And do you remember approximately what time you left the
9 10 South Unit that morning?
10 A. I think I left that unit at about 10:45 a.m.
11 Q. You mention that you had met Officer Pepe prior to this
12 occasion.
13 A. Yes.
14 Q. And had you seen him interact with the inmates on 10
15 South?
16 A. Yes.
17 Q. And could you generally describe for us your impression of
18 how he treated the prisoners?
19 A. Exceptionally courteously. He was really very well
20 regarded and he treated them well.
21 Q. And would he do certain things for the prisoners that
22 other guards would not do?
23 A. That was my understanding.
24 Q. And do you have any examples of types of things?
25 A. One example was that he occasionally didn't cuff them with
7620
1 short visits, and I think that he would, you know, he would,
2 again, just typical of his behavior was his going back to the
3 client on the day that we visited to bring a message back and
4 forth about whether we would be visiting. That would be not
5 usual behavior.
6 Q. And was it your understanding that he would also do
7 personal things for them such as heat water for them and
8 things like that?
9 A. I heard that, yes.
10 Q. Is it fair to say that you never saw him mistreat any
11 inmate in any way?
12 A. Never.
13 MR. GARCIA: I have nothing further, Judge.
14 CROSS-EXAMINATION
15 BY MR. RUHNKE:
16 Q. Mr. McAllister, good morning.
17 A. Good morning.
18 Q. There was a time that we were co-counsel in this case in
19 the sense that we each represented defendants in this case,
20 correct?
21 A. That's right.
22 Q. And shortly after the assault by Salim on Officer Pepe,
23 you were relieved as counsel; is that correct?
24 A. That's true.
25 Q. And Mr. Adler, also?
7621
1 A. Yes.
2 Q. And since that time, Mr. Salim has acquired new attorneys;
3 is that correct?
4 A. Yes.
5 Q. And when you mention the trial starting January 5, you are
6 talking about the trial that this jury has now heard; is that
7 correct?
8 A. Yes.
9 Q. As a result of the change in attorneys, was Mr. Salim
10 severed from this trial, which is a legal term meaning he was
11 going to be tried later instead of with his co-defendants?
12 A. That's true.
13 Q. Regarding Officer Pepe, could you give us an estimate, by
14 way of background, how many times you think you were on 10
15 South prior to November 1?
16 A. I would go there at least once a week over the course of
17 the two years and sometimes twice a week, except when I was on
18 vacation, which was only twice in the course of the two years,
19 and maybe a trial here or there. But I was there very
20 frequently.
21 Q. Does 40 or 50 times a fair estimate?
22 A. Oh, easily, over the course of the two years, yes.
23 Q. Could it be more?
24 A. Probably more.
25 Q. And when you were on 10 South, were there occasions when
7622
1 you saw that Officer Pepe appeared to be the only officer on
2 that unit?
3 A. Yes.
4 Q. Do you recall that there were from time to time what were
5 called codefendant meetings?
6 A. Yes.
7 MR. RUHNKE: Your Honor, could I have Government
8 Exhibit 4000 placed on the screen again, please.
9 Q. Looking at the diagram of 10 South, Mr. McAllister, there
10 are two rooms that are designated recreation; is that correct?
11 A. Yes.
12 Q. And were those larger rooms also used for attorney-client
13 visitation?
14 A. Yes, they were. They were the ones that we used most
15 frequently.
16 Q. And in those rooms there would be a table, some plastic
17 chairs, and you would meet under those circumstances, correct?
18 A. Yes.
19 Q. Prior to November 1, 2000, were the circumstances of your
20 visits with a client generally what are referred to as contact
21 visits?
22 A. Yes. Every single visit, as far as I recall, was what
23 could be characterized as contact visits. I think that was
24 the first and only visit that I had that was not.
25 Q. And by "contact visit" do you understand me to mean where
7623
1 you would sit basically across from your client, your client
2 would not be shackled, there would be no barriers between you?
3 A. That's right.
4 Q. The procedure you were able to observe on 10 South when a
5 client came to a contact visit such as we described -- and
6 let's take as an example the recreation room, the first
7 recreation room on the diagram in the lower left corner?
8 A. Yes.
9 Q. Generally speaking, with the exceptions that you described
10 that Officer Pepe did not cuff clients, were clients generally
11 cuffed from behind when they came to a meeting with counsel?
12 A. In general, yes.
13 Q. Prior to having the cuffs taken off, would the clients be
14 brought into the attorney room still cuffed and the door
15 locked behind you?
16 A. Yes. As far as I recall, each time.
17 Q. And would then the procedure be for the client to back up
18 to a slot in the door and have the cuffs removed?
19 A. Yes.
20 Q. And at the conclusion of such a meeting, was the procedure
21 that once the meeting was over and you got the guard's
22 attention that the meeting was over, that the client would
23 again back up to the slot in the door, be cuffed from behind
24 before the door was opened and the attorneys were let out?
25 A. Generally, yes.
7624
1 Q. And there were also times, as you mentioned earlier, that
2 there were co-counsel meetings, codefendants meetings that
3 several, some or all of the defendants named in the case and
4 some or all of the attorneys would meet together to discuss
5 the case and issues concerning the case?
6 A. Yes.
7 Q. Were there times during such meetings that you can recall
8 when meetings were over and you couldn't even get the
9 attention of a guard anywhere on 10 South?
10 A. Oh, yes. Yes, that was not very unusual.
11 Q. That the meeting would be over and people would be
12 yelling, we're done, we're done?
13 A. Yes.
14 Q. And no one would come at all?
15 A. Exactly.
16 Q. Do you recall occasions where people would actually hold
17 up a legal pad in front of the video monitor in the hope that
18 that would bring people?
19 A. I do remember that.
20 Q. And we would often or counsel would often wait for ten or
21 fifteen minutes before anyone would even respond to the idea
22 that people were yelling and screaming?
23 A. That's true.
24 Q. I want to take you more deliberately through the
25 procedures that Mr. Garcia described on entry into the
7625
1 Metropolitan Correctional Center as of up to November 1, 2000.
2 When you were going to 10 South -- let me back up a
3 bit. There is an area on the third floor of the Metropolitan
4 Correctional Center which is the general attorney-client
5 interview area; is that correct?
6 A. That's true.
7 Q. And generally, attorneys go up to the third floor, the
8 client is called, the client is brought down to the third
9 floor and the meeting occurs in one of many, many rooms in
10 that third floor area, correct?
11 A. That's true.
12 Q. But there was a special procedure for the high security
13 areas on 9 South and 10 South; is that correct?
14 A. That's right.
15 Q. For example, were you permitted, if you can recall, to
16 even bring a briefcase up to 10 South?
17 A. No.
18 Q. Were you permitted to bring any money on your person?
19 A. No, no personal items at all.
20 Q. Did you have to leave your wallet in a locker?
21 A. Yes.
22 Q. And as you entered the Metropolitan Correction Center,
23 which is at 150 Park Row, around the corner, you walk through
24 a door and the first thing you would do would be to fill out a
25 form saying you were here to visit with an inmate, correct?
7626
1 A. That's true.
2 Q. And on the form you would have to answer a series of
3 questions -- the name of the inmate, the inmate's number, the
4 inmate's location within the institution, if you knew it --
5 and also check a long list of things that you did not have,
6 weapons, firearms, explosives, things of that nature, correct?
7 A. Yes. Yes.
8 Q. You would then give the form to one of the corrections
9 officers at the front desk, who would then issue you a badge,
10 which was an attorney pass, and a locker key, which would
11 allow you to store personal items under lock in the front of
12 the lobby to the MCC, correct?
13 A. Yes. The first is you put everything on the conveyor belt
14 whether you take it up or not.
15 Q. Even though you weren't going to take a briefcase up, the
16 officers x-rayed to see what was left behind in the locker?
17 A. Yes. Everything is x-rayed that comes into the facility,
18 whether you take it with you or not.
19 Q. You also, no matter how many times you have to be there,
20 you have to display an I.D. proving you are an attorney and
21 usually a second form of picture I.D., correct?
22 A. Yes, you have to in fact give it to the prison officials.
23 Q. Once you have gone through that preliminary step, is the
24 next step that you yourself pass through a metal detector?
25 A. Yes.
7627
1 Q. And if the metal detector goes off, are you then scanned
2 with one of these hand-held wands?
3 A. Yes.
4 Q. At that point, do you also have your hand stamped with an
5 invisible fluorescent stamp?
6 A. Yes.
7 Q. And the next thing you do, do you then sign in a book name
8 of inmate, time you arrived?
9 A. Yes.
10 Q. The number of inmate, etc.
11 A. Yes, the lobby book, yes.
12 Q. And at that point, as you described it, you go down a
13 short corridor and there is a locked door that is operated by
14 a buzzer from the front desk, correct?
15 A. Yes.
16 Q. And you are buzzed through that door, and now you go into
17 a second area, where I think there is some soda machines and
18 things like that?
19 A. Yes.
20 Q. And there is a large darkened window to some kind of
21 control center next to a large door to your right as you go
22 in, correct?
23 A. Yes.
24 Q. And you have to wait at that door until the control
25 officer clicks that door open, correct?
7628
1 A. Yes.
2 Q. And now you are into a hallway leading up to a second
3 large metal door, correct?
4 A. Yes.
5 Q. Is it your understanding that the system is set up so that
6 both of those doors cannot be opened at the same time?
7 A. That's true.
8 Q. So you wait for the second door to open, and now you are
9 into a corridor, still next to a window, where there is an
10 officer inside in some kind of control station, correct?
11 A. Yes.
12 Q. At that point, do you then show your hand under a blue
13 light --
14 A. Yes.
15 Q. -- device to show that you have a stamp and that you have
16 been approved through?
17 A. And the paperwork as well.
18 Q. And the paperwork authorizing your visit.
19 And then you simply wait for an elevator, but do you
20 have control over the elevator, or must you wait for a staff
21 person to escort you on the elevator?
22 A. No, you have to -- there's no control over the elevator
23 for the visitors. You have to wait for a staff member. In
24 fact, there is an elevator designated for inmates and
25 visitors.
7629
1 Q. Once someone comes to take you up to the ninth floor, now
2 you are in a corridor between two inmate units on the ninth
3 floor; is that correct?
4 A. Yes.
5 Q. 9 South and 9 North, 9 South obviously facing towards the
6 south end of MCC, 9 North facing the north end of MCC. And
7 now you come to another door?
8 A. Yes.
9 Q. Which carries a designation -- have you seen the letters
10 SHU on that door?
11 A. Yes.
12 Q. Do you understand those letters to stand for Special
13 Housing Unit?
14 A. Yes, I do.
15 Q. You have to wait by that door until that is opened for
16 you, correct?
17 A. Yes.
18 Q. And as you enter, now you are entering onto the entry area
19 on 9 South?
20 A. Yes.
21 Q. You again sign in at that point; is that correct?
22 A. Yes.
23 Q. And you described in front of you a metal grate door?
24 A. Grill door, yes.
25 Q. A grill door that's locked. Before you are able to go,
7630
1 though, from signing in through that metal door, are you again
2 scanned with a metal detector, hand-held metal detector by an
3 officer?
4 A. Yes, you have to remove any items that you may have,
5 although you are only permitted to have a pen and whatever
6 legal material you are carrying. And your legal material is
7 usually inspected and you are scanned, one is scanned again
8 with a wand.
9 Q. And once you have been scanned and approved by the officer
10 who has done that procedure, then the grate or the barred
11 door, heavy barred door that you described is unlocked and you
12 walk onto what is the 9 South unit; is that correct?
13 A. Yes.
14 Q. Are there 9 South inmates wandering around 9 South?
15 A. There are not.
16 Q. And from 9 South you walk across the unit, and is there
17 like a half a flight of stairs that takes you up to 10 South?
18 A. Yes.
19 Q. You go up to the top of 10 South.
20 Do you remember how you have to get the attention of
21 the 10 South officer or the control officer?
22 A. Yes. You pick up a phone and hang it up again.
23 Apparently that signals the person inside that, or somebody,
24 to click that door open.
25 Q. And that door clicks open. It is a heavy metal door that
7631
1 you can't see out of; is that correct?
2 A. That's true.
3 Q. And now you are in what you called the vestibule; what
4 corrections officials would probably call a sallyport?
5 A. Yes.
6 Q. To 10 South, correct?
7 And looking at the diagram, where you have gotten to
8 now is -- do you see the area on the far left of the diagram
9 designated "office"?
10 A. Yes.
11 Q. And just above the office do you see the small sallyport
12 area and the two doors indicated that we are talking about?
13 A. Yes.
14 Q. Now, the second door, the one that goes right onto 10
15 South Unit, that has a window in it, correct?
16 A. Yes.
17 Q. And the procedure is you stand by the window until whoever
18 the officer is who is on duty comes and opens that door with a
19 key, correct?
20 A. Yes.
21 Q. And now you are actually on the 10 South Unit once you go
22 through that second door at the end of the sallyport?
23 A. Yes.
24 Q. And do you then sign there again and display your
25 paperwork to the officers at the desk or officer on duty?
7632
1 A. Yes, you give your paperwork to that officer and there is
2 a sign-in log located on the desk and you sign in.
3 Q. You will see something designated -- it is a little hard
4 to read, but it says officers desk. Is that the area you are
5 talking about?
6 THE COURT: Officers station.
7 MR. RUHNKE: Officers station, yes, your Honor.
8 A. Yes.
9 Q. And you made reference earlier to having seen some video
10 screens. Where are those located in relation to officers
11 station?
12 A. Those, of course, I couldn't see are underneath the desk
13 that the officer can look at if he is seated at the desk, and
14 some are above it toward the back of that station.
15 Q. So now you are onto 10 South, and generally speaking, you
16 would then be placed in one of the visiting areas, most
17 usually the large areas designated "recreation"?
18 A. Yes, almost always.
19 Q. And if those were full for any reason, would you
20 occasionally meet with a client, or did you occasionally meet
21 with Mr. Salim in what are designated attorney visit, inmate
22 visit rooms?
23 A. Yes, that happened on two or three, four occasions the
24 most, fortunately.
25 Q. But even on those occasions, was the meeting contact in
7633
1 the sense that, instead of being in separate rooms, you were
2 all kind of knee-to-knee in a small room?
3 A. Yes, each time. It is a very tiny area, but we were
4 placed in the same side, not separated by anything.
5 Q. And generally speaking, the procedure would be that the
6 client would be brought, handcuffed from behind, would step
7 into the room, the door would be locked and the client would
8 then be unhandcuffed so you could continue with your meeting
9 and the client would have free hands and be able to handle
10 documents, etc., correct?
11 A. That's true.
12 Q. And on leaving 10 South, essentially did you do the
13 reverse procedure?
14 A. Yes, one would sign the log that's located on the station.
15 Q. Signing out?
16 A. Sign out. Sign the log, obviously pass through those two
17 doors and down the flight of stairs, pass the iron gate.
18 Q. Someone would have to open the gate for you?
19 A. Somebody would have to open the gate with a key. That's
20 another thing that requires a key as opposed to clicking or
21 electronically. And then there is yet another log to be
22 signed out.
23 Q. And then you had another door onto the corridor by the
24 elevators?
25 A. Yes.
7634
1 Q. You would then wait for the elevator?
2 A. Yes.
3 Q. And when you got down to the ground floor, the first floor
4 of the Metropolitan Correctional Center, did you again have to
5 show your hand that had the stamp on it?
6 A. Yes.
7 Q. And then go through those two doors that we described that
8 can't be opened at the same time?
9 A. Yes.
10 Q. And finally, you would be able to go out the door?
11 A. Yes. If I recall correctly, there was even yet another
12 station out there at the lobby where you would show your hand
13 yet again.
14 Q. You had to show your hand one more time?
15 A. And sign out.
16 Q. Throughout the period of time you also have to have
17 displayed a badge identifying you as an attorney on an
18 approved visit, correct?
19 A. Yes.
20 Q. Did Mr. Salim consider himself falsely accused in this
21 case?
22 A. Yes.
23 Q. Did he tell you he was falsely accused?
24 A. Yes.
25 Q. Did Mr. Salim complain to you about the violation of his
7635
1 legal rights?
2 A. Yes.
3 Q. Did Mr. Salim -- you described him being unhappy with your
4 representation. Did he complain about your representation to
5 a judge?
6 A. Yes.
7 Q. Did he complain about Mr. Adler's representation to a
8 judge?
9 A. Yes.
10 Q. And Mr. Goelzer's representation?
11 A. Yes.
12 Q. As the time for trial approached, did you observe
13 Mr. Salim to start becoming increasingly angry and frustrated
14 and upset about events?
15 A. Yes.
16 Q. Do you recall -- and I'm not going to ask you about the
17 contents -- do you recall that there came a time when a
18 meeting was held on the record, in the sense that there was a
19 transcript made of it, involving yourself, Mr. Adler and
20 Mr. Salim before what is called a magistrate judge in this
21 district?
22 A. I recall that.
23 Q. And do you recall that the subject of that was whether or
24 not Mr. Salim should have his attorneys replaced, should have
25 new attorneys?
7636
1 A. Yes.
2 Q. Do you recall the date, the exact date on which that
3 occurred?
4 A. I don't. It was late October as far as I recall.
5 MR. RUHNKE: Your Honor, may I approach the witness
6 and show him a document?
7 THE COURT: Yes.
8 BY MR. RUHNKE:
9 Q. Mr. McAllister, showing you a document that's been marked
10 K.K.M. 2 for identification, does looking at that document
11 help refresh your recollection as to when the conference
12 occurred with regard to replacing attorneys?
13 A. Yes.
14 Q. What was that date?
15 A. October 26th of 2000.
16 Q. Was Mr. Salim happy with the outcome of that conference?
17 A. No.
18 Q. You stated that your representation of Mr. Salim began on
19 approximately December 21, 1998. Are you aware of the fact,
20 as you certainly are, that Mr. Salim had been extradited from
21 Germany?
22 A. That's true.
23 Q. Are you aware of the fact that, as a condition of his
24 extradition, the United States agreed that it would not seek
25 the death penalty as to Mr. Salim?
7637
1 A. Yes, that's true.
2 Q. You made reference to a computer in what was described as
3 the computer room which is on GX4000, the attorney visit area
4 on the top. Did the computer that was in that room have a
5 keyboard that the inmate could use?
6 A. No.
7 Q. Did it have a mouse that could be used to access anything
8 on the screen?
9 A. No.
10 Q. It may be obvious: Was there Internet access connected to
11 that computer?
12 A. No.
13 Q. Was the computer a particular source of frustration to
14 Mr. Salim?
15 A. Yes.
16 Q. Do you know what Mr. Salim's educational background is?
17 A. My understanding is that he was educated as an electrical
18 engineer.
19 Q. And did he seem to have good computer skills?
20 A. Yes.
21 Q. Just so it is clear, looking on Government Exhibit 4000,
22 there were questions asked about the route likely taken or the
23 route that you saw.
24 First of all, if I were to suggest that the square
25 object that Mr. Garcia pointed out was a column or pillar,
7638
1 would that help you remember what that was?
2 A. Yes.
3 Q. And that is right next to the second inmate visit area?
4 THE COURT: You talked of seeing things through the
5 window in your door and through the window of another door.
6 THE WITNESS: Yes.
7 THE COURT: Could you just indicate what the line of
8 sight was.
9 THE WITNESS: Yes. From the inmate visit, there's a
10 window there and it is diagonal to where just what would be to
11 the right, to the right of the object, to the bottom lower
12 than the guard station. The door that one enters that's
13 depicted in this diagram has a rectangular window, plexiglass
14 window in it as well, so one can see through the square window
15 from the inmate visit to the rectangular plexiglass window
16 that's in the door that is -- the window is in the final door
17 that one would enter to get to the facility, sort of a
18 diagonal line.
19 THE COURT: There is an indication that is something
20 called officers station?
21 THE WITNESS: Yes.
22 THE COURT: And then there is something which appears
23 to be a desk. Is that in fact a desk?
24 THE WITNESS: Yes.
25 MR. RUHNKE: Your Honor, can I just inquire, I was
7639
1 going to inquire into that area.
2 THE COURT: All right.
3 BY MR. RUHNKE:
4 Q. So just so it is clear, the area designated "officers
5 station" is a desk of approximately waist high, would that be
6 a fair description?
7 A. Yes.
8 Q. And as you sit in the area, if we count from the top of
9 these four small rooms, the first room was the so-called
10 computer room, the second room is the room that you and
11 Mr. Adler were in, correct?
12 A. Yes, the second from the top.
13 Q. Right. And there is a door to that room with one of these
14 slots in it, but rather a large normal sized window in that
15 door; is that correct?
16 A. Yes.
17 Q. And am I correct that there is a very clear line of sight
18 from that room to the window on the inner door opening onto 10
19 South?
20 A. Yes, there is a clear line of sight. Again, although it
21 is unclear in the diagram, this guard's station is very, is
22 lower. It is waist high at most, so one can see diagonally
23 from one window to the other.
24 Q. So we are 100 percent clear, you can see two doors in what
25 will probably be described as a sallyport by most of the
7640
1 correction officers?
2 A. Yes.
3 Q. The outer door, the one that is onto 9 South, does not
4 have a window in it, correct?
5 A. That does have a window.
6 Q. But the inner door, the one that opens directly onto 9
7 South, does have an window, yes?
8 A. Yes, it does.
9 Q. As you indicated, that is so the officer inside can see
10 who is trying to gain access onto 10 South; is that correct?
11 A. Yes.
12 Q. We see Cell No. 1 at the top, and touching it, adjacent to
13 it, Cell No. 6; do you see that on the diagram?
14 A. Yes.
15 Q. Just again to get the sequence exactly right, in order to
16 get to Cell No. 6, is it necessary to go around the entire --
17 from the attorney area which we are describing, it is
18 necessary to go around the entire perimeter of 10 South to
19 gain access to Cell No. 6; is that correct?
20 A. Yes. It would be in the nature of a U exactly. The
21 cells, as you can see from the diagram, back up on one
22 another. So, yes, you would go all around.
23 Q. Have you been on 10 South since November 1?
24 A. No.
25 Q. Final area. You described seeing an individual whom you
7641
1 believed to be Mr. Salim dragged along the ground by two
2 officers; is that correct?
3 A. Yes.
4 Q. And you described him as being face-down and leaving a
5 trail of blood behind him?
6 A. Yes.
7 Q. And am I correct that you observed Mr. Salim basically
8 dropped on the floor, placed on the floor face down; was he
9 moving in any way?
10 A. Not at all.
11 Q. Was he resisting in any way?
12 A. No.
13 Q. Did he appear to you to be conscious?
14 A. He didn't appear to be conscious.
15 Q. Did it appear to you that he might even be dead?
16 A. That was a possibility.
17 Q. And tell the jury again what you saw an officer do.
18 A. Well, just before they -- well, I observed this individual
19 being dragged. He was already face down, being dragged around
20 the corner, and the two officers --
21 THE COURT: Around which corner?
22 THE WITNESS: Around the corner from the direction of
23 where, say, the storage area is when you come up to see where
24 the square is, which is a column.
25 THE COURT: Yes.
7642
1 THE WITNESS: Dragged from around that corner in the
2 direction of the attorney visit cell. And in fact, the
3 officers stopped approximately between the attorney visit cell
4 and the inmate visit cell, Mr. Adler and I having been located
5 in the inmate visit cell.
6 BY MR. RUHNKE:
7 Q. You are talking about the second room drawn on the
8 diagram, correct?
9 A. Yes, right about there.
10 Q. And when Mr. Salim was -- when the officer stopped
11 dragging him at that point, what did you see?
12 A. One of them removed -- the one that had his back to us,
13 that was closest to us but with his back to us, removed a key
14 from a key ring and jabbed it toward the eye.
15 Q. Did you see Mr. Salim do anything to provoke that?
16 A. No, I didn't.
17 Q. At the time this was going on, were the officers shouting
18 at you and Mr. Adler not to look, to turn around?
19 A. Not at that point, but they did. After what I described
20 occurred with the key, they then resumed dragging Mr. Salim
21 toward -- well, who I thought was Mr. Salim -- toward the top.
22 Q. Towards Cell No. 1?
23 A. Towards Cell No. 1, right. And then they, my best
24 recollection is they dragged him pretty close to as far as he
25 could be dragged in that corridor, and it was at that point, I
7643
1 guess, that they became aware of Mr. Adler and I and it was at
2 that point that they began shouting the things that you have
3 just asked me about.
4 Q. Don't look, turn around?
5 A. Don't look, sit down.
6 Q. It is your impression that they weren't aware that you
7 were even there until that point?
8 A. I think that's probably true. Well, right, I think so.
9 MR. RUHNKE: I have no further questions, your Honor.
10 MR. GARCIA: Briefly, Judge.
11 REDIRECT EXAMINATION
12 BY MR. GARCIA:
13 Q. In your last exchange of answers you were saying you think
14 that's probably true, they didn't know you were there. Do you
15 know if they knew you were there or not?
16 A. I don't know that.
17 Q. Mr. Ruhnke was asking you when they brought who you
18 believed to be Salim by the cell door, that at that time you
19 didn't know if he was dead or not. Remember Mr. Ruhnke asking
20 you that in substance?
21 A. Right. I didn't see him move.
22 Q. He wasn't dead, was he?
23 A. No.
24 Q. In fact, you saw him shortly after this incident, didn't
25 you?
7644
1 A. Yes, I did.
2 Q. Prior to November 8th when you were relieved?
3 A. Yes, I did. I had a visit with him before being relieved.
4 Q. And did Mr. Salim during that meeting in early November
5 appear to have any serious injuries near his eye?
6 A. No.
7 Q. Mr. Ruhnke also asked you extensively about the security
8 procedures for getting into the MCC and he walked you through
9 those. Do you recall that?
10 A. Yes.
11 Q. And you went through a certain number of doors, you went
12 through a certain number of checks; is that correct?
13 A. Yes.
14 Q. You had to give I.D., you went through a metal detector,
15 you signed into a number of logs; is that right?
16 A. Yes.
17 Q. And that was basically standard procedure for every time
18 you went to the MCC to visit Mr. Salim, is that fair?
19 A. Yes.
20 Q. And as far as you can recollect, that was the procedure
21 that was followed on November 1; is that correct?
22 A. Yes.
23 Q. And that was the date that you saw Officer Pepe with the
24 object sticking out of his eye?
25 A. Yes.
7645
1 MR. GARCIA: Thank you.
2 Nothing further.
3 MR. RUHNKE: Nothing additional, your Honor.
4 THE COURT: We'll take a recess at this point.
5 (Jury exits)
6 THE COURT: I have some questions I would like to ask
7 outside the presence of the jury. I am still having
8 difficulty with I guess the line of sight problem.
9 The window on the inner door, you mentioned that
10 window.
11 THE WITNESS: Yes.
12 THE COURT: Is that entire door glass?
13 THE WITNESS: No, no. It is a vertical rectangle
14 toward the -- from where we were looking, it would be toward
15 the right. It would be toward where I think the lock was
16 located and the handle.
17 THE COURT: And the window in the inmate visit room
18 that you were in, where and what are the approximate
19 dimensions of that window?
20 THE WITNESS: If I recall correctly, that window took
21 up virtually the whole upper half of the door. The bottom was
22 I think metal with the slot. The inmate could stick his hands
23 through to be cuffed or uncuffed and the upper portion of that
24 is plexiglass. So my best recollection is about just half,
25 the top half of the door is plexiglass -- a good portion of
7646
1 it, as I recall, is plexiglass.
2 THE COURT: When you saw Salim -- the person you
3 thought to be Salim being dragged, I suppose he was being
4 dragged in the area going --
5 Tell me.
6 THE WITNESS: Well, where the column is, just to the
7 right if you look at the diagram is the corridor, the
8 corridor, in fact, down which Officer Pepe and Mr. Salim
9 disappeared from our line of sight when Mr. Salim was being
10 returned to his cell.
11 THE COURT: Yes.
12 THE WITNESS: So it was from that corridor that is
13 toward the right of the diagram, around that corner between
14 let's -- I think between the column and the inmate visit --
15 this diagram depicts, I guess, it seems to me must depict the
16 door as swung open.
17 THE COURT: Yes. It confused me at first. I realize
18 now all of these arcs are simply to indicate which way a door
19 opens.
20 THE WITNESS: Yes.
21 THE COURT: In fact when the doors are closed, that
22 is a clear passageway.
23 THE WITNESS: Exactly.
24 THE COURT: What I am trying to find out is what your
25 line of sight was, especially your line of sight of the floor.
7647
1 THE WITNESS: My line of sight, obviously it is clear
2 from the diagram I certainly couldn't see anything around the
3 corner sort of going toward the right of the diagram, but I
4 became aware of the guards and the person who I thought was
5 Mr. Salim once they rounded the corner because Mr. Salim was
6 being dragged, once he cleared the corner, was actually being
7 dragged in our direction, Mr. Adler's and I. In fact, he was
8 ultimately dragged beyond us.
9 THE COURT: You recall he was dragged, looking at
10 this diagram, to the right or the left of the column, if you
11 remember?
12 THE WITNESS: I, truly I don't for sure, but I think
13 it was between the -- I think it was to the right of the
14 column as we look at the diagram, but I'm not 100 percent sure
15 of that.
16 THE COURT: Now, there is no exit, is there, as you
17 go in that direction?
18 THE WITNESS: There is a door -- the answer is I'm
19 certainly not aware of an exit, no.
20 THE COURT: Are there going to be any pictures or
21 anything which is going to clarify this?
22 MR. RUHNKE: Your Honor, if you like, I have a
23 photograph here which I think could answer every question,
24 which I will show to Mr. McAllister when the jury returns as
25 an additional exhibit.
7648
1 MR. GARCIA: Your Honor, the government intends to
2 offer the photo he is holding through the next witness.
3 THE COURT: Through the next witness?
4 Maybe I should be more patient, but I just confess
5 that at the present moment I have a number of questions as to
6 what it is --
7 Mr. McAllister, I'm not in any way suggesting that
8 you are not giving a fair and accurate account of what you
9 saw, but the mechanics of it I have difficulty with.
10 THE WITNESS: So do I in the way the diagram is
11 constructed.
12 I should say that I certainly couldn't see everybody
13 in the vestibule. There were at least two or three people
14 that were closest and banging on the door.
15 THE COURT: But you could see the floor?
16 THE WITNESS: Absolutely. There is a clear line of
17 vision.
18 THE COURT: To the floor?
19 THE WITNESS: I'm sorry. To the floor in front of
20 the cells? Yes.
21 THE COURT: To the floor that you saw, you described
22 while Mr. Salim was being dragged.
23 THE WITNESS: Yes.
24 THE COURT: So he was on the floor?
25 THE WITNESS: He was on the floor face-down.
7649
1 THE COURT: You could see that?
2 THE WITNESS: I could see that.
3 THE COURT: All right.
4 MR. RUHNKE: Your Honor, could I have leave to have
5 some brief recross of Mr. McAllister? I'll show him the
6 photographs and we will clear it up for the jury.
7 MR. GARCIA: We will do that with the next witness,
8 Judge.
9 MR. RUHNKE: If your Honor is confused, the jury
10 might be confused, and I would like the opportunity to ask
11 Mr. McAllister to explain exactly what he was talking about.
12 I thought it was clear, but apparently it is not. I'm asking
13 for leave to ask a couple of questions.
14 THE COURT: Well, it isn't. The answer to your
15 question is, yes, you may have further redirect and we'll take
16 a five-minute recess.
17 MR. FITZGERALD: We have one other application.
18 THE COURT: Yes.
19 MR. FITZGERALD: I would think it would be
20 appropriate to instruct the jury at this point that
21 Mr. McAllister was relieved because he was a witness to those
22 events in representing Mr. Salim. Mr. Ruhnke brought out that
23 he and Mr. McAllister were co-counsel.
24 THE COURT: Yes.
25 MR. FITZGERALD: And therefore, because of the
7650
1 assault, Mr. McAllister was relieved. I don't want the jury
2 to think there was a finding by the court that Mr. Salim for
3 some reason engaged in misconduct and therefore Mr. McAllister
4 was relieved, and Mr. Khalfan Mohamed did not, and
5 therefore --
6 THE COURT: As soon as you redirect, I will permit
7 you to ask a leading question: Were you relieved because you
8 were a potential witness?
9 MR. FITZGERALD: Thank you, Judge.
10 THE COURT: We'll take a five-minute recess.
11 (Recess)
12 THE COURT: I have no problem with the further
13 inquiry that you suggest. We will do that during the lunch
14 break.
15 MR. FITZGERALD: Thank you.
16 MR. RUHNKE: Your Honor, was that a response to --
17 THE COURT: That was in response to a letter I just
18 got from the government.
19 MR. RUHNKE: I haven't even had a chance to read it.
20 THE COURT: You will be fully advised before anything
21 happens.
22 Now bring in the jury.
23 MR. FITZGERALD: Judge, also could we have an
24 instruction Mr. Ruhnke should not inject himself into the
25 facts, which he did several times in the questions, about what
7651
1 happened at meetings he was present at? I think it is very
2 important that the jury not view that he is testifying through
3 the questions.
4 THE COURT: All right.
5 MR. RUHNKE: Yes, your Honor.
6 THE COURT: Just keep that in mind.
7 (Jury enters)
8 THE COURT: Mr. Ruhnke.
9 MR. RUHNKE: Thank you, your Honor.
10 RECROSS-EXAMINATION
11 BY MR. RUHNKE:
12 Q. A few more questions on recross-examination,
13 Mr. McAllister.
14 MR. RUHNKE: Without objection from the government,
15 your Honor, I would like to display to the jury and to all
16 counsel Defendant's Exhibit K.K.M. 6.
17 Q. Now, Mr. McAllister, do you see K.K.M. 6 in front of you?
18 A. Yes.
19 Q. And to the left of the photograph do you see a desk with
20 what appears to either be a, appears to be actually a
21 microwave or some sort of device on top of it?
22 A. Yes.
23 Q. Is that the officers station that you were discussing?
24 A. Yes.
25 Q. And this item to the, on the far left-hand corner, lower
7652
1 left-hand corner of the photograph, which actually appears to
2 be some sort of crime scene kit, was that there when you were
3 there on 10 South on November 1?
4 A. No.
5 Q. And the row of doors alongside the right-hand side of the
6 photograph, are those the doors you were describing on the
7 diagram as being the computer room and the inmate-attorney
8 interview areas when you were on November 1, 2000?
9 A. Yes.
10 Q. The furthest door that you can see, although you can't see
11 it 100 percent clearly, is that where the computer actually
12 was?
13 A. That's right.
14 Q. And then there is a slit window and then a second slit
15 window and then another door. Is that the door where you
16 and -- behind which you and Mr. Adler were on November 1?
17 A. Yes.
18 Q. And you described --
19 THE COURT: So that starting at the lower right-hand
20 corner of that, which was the door that you were behind?
21 THE WITNESS: I believe that, if I can understand the
22 diagram correctly, it is the --
23 THE COURT: The photograph.
24 THE WITNESS: The photograph. It is not the door
25 that's in the, to the extreme right, but a little further
7653
1 back. In other words, I'm not sure whether the photograph,
2 the foreground or whether the right side of the photograph
3 includes the cell that is divided by mesh is just before the
4 one that I was in or not. I can't tell from this photograph
5 exactly, but I believe that I was located beyond sort of where
6 the second door that seems to appear to be open, swung open.
7 I may be wrong about that, but I think that's where I was.
8 Q. Just again to set this up correctly, there are four doors
9 along that particular wall, correct?
10 A. There are four doors along that wall.
11 Q. Two for each area of an attorney-inmate visit as shown on
12 the diagram, correct?
13 A. That is true.
14 Q. And between the two areas within each straight unit, there
15 is a mesh security screen, correct?
16 A. Yes.
17 Q. And as you look at this diagram, starting from the rear of
18 the photograph, which would be towards Cell No. 1, do you see
19 a door which would be where the computer was?
20 A. Yes, I think so. I think that's the door behind which the
21 computer was.
22 Q. Followed by the slit, which would be on the inmate's side
23 or the computer side of the screen, correct?
24 A. Yes.
25 Q. Followed by another slit, which would be on your side of
7654
1 the screen, correct?
2 A. Yes.
3 Q. Followed by a door that now appears to be swung open,
4 correct?
5 A. Yes.
6 Q. And that would be the area where you and Mr. Adler were?
7 A. Yes, that's what I think from this photograph.
8 Q. And you mentioned seeing Salim dragged by, leaving a trail
9 of blood. Can you see the trail of blood in that photograph?
10 A. Yes.
11 MR. RUHNKE: Your Honor, also without objection I
12 would like to display to Mr. McAllister, K.K.M. 5.
13 Q. Now, is this a view of the rooms you are describing taken
14 from the entranceway onto 10 South?
15 A. Yes, that appears to be so.
16 Q. And as you came onto 10 South through that final door, you
17 would be facing that way, the officers station would be to
18 your immediate left in the photograph, correct?
19 A. That's correct.
20 Q. And as you see now, the column that we discussed earlier?
21 A. Yes, I do.
22 Q. And you can see that actually there is an inmate
23 standing -- it appears to be Mr. El Hage, as a matter of
24 fact -- standing in the door on the far right, correct?
25 A. Yes. I can't tell who it is, but, yes.
7655
1 Q. You see the size of the window that's in that door?
2 A. Yes.
3 Q. Standing at that door -- I'm sorry. Let's go on a little
4 further.
5 And then to the left there is another full-size door
6 which would have been the other side of the screen for the
7 first attorney-inmate area?
8 A. Yes.
9 Q. And then a door that is swung open, correct?
10 A. Yes.
11 Q. And the door that's swung open, is that the door behind
12 which you and Mr. Adler were?
13 A. Yes, I think so.
14 Q. And standing in that area, if you are standing by the
15 door, the window appears to be about waist high, correct?
16 A. Yes.
17 Q. Depending on your height, obviously.
18 And standing at that window in that door, can you
19 very clearly see the floor and all of the floor at your feet?
20 A. Yes.
21 Q. Finally, I would like to display what is, without
22 objection from the government, K.K.M. 4. And once again, does
23 that display the -- a picture of the officers station to the
24 left side of the photograph with what appears to be a
25 microwave oven behind it?
7656
1 A. Yes.
2 Q. And once again, does that seem to display that trail of
3 blood that you discussed, including at the end of it a large
4 pool of blood where it appears to be Mr. Salim was actually
5 brought to rest?
6 A. Yes, that's true.
7 MR. RUHNKE: I have no further questions, your Honor.
8 MR. GARCIA: Just very briefly, Judge.
9 MR. RUHNKE: I assume these were received in
10 evidence.
11 THE COURT: K.K.M. 6 and K.K.M. 4 received.
12 MR. GARCIA: No objection.
13 MR. RUHNKE: 5 also?
14 THE COURT: And K.K.M. 5.
15 (Defendant's Exhibits K.K.M. 4, 5 and 6 received in
16 evidence)
17 REDIRECT EXAMINATION
18 BY MR. GARCIA:
19 Q. Just ask you very briefly on an area. You mentioned that
20 you were relieved as counsel for Mr. Salim on November 8th; is
21 that correct 2000?
22 A. I think approximately that date.
23 Q. Approximately?
24 A. Yes.
25 Q. And is it accurate to say you were relieved from
7657
1 representing him because of the potential that you would be a
2 witness in this case?
3 A. Yes.
4 MR. GARCIA: Nothing further, Judge.
5 THE COURT: Thank you.
6 Thank you, Mr. McAllister. You may step down.
7 The government may call its next witness.
8 MR. GARCIA: Roderick Jenkins.
9 RODERICK JENKINS,
10 called as a witness by the government,
11 having been duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. GARCIA:
14 Q. Mr. Jenkins, where do you work?
15 A. MCC, Metropolitan Correctional Center.
16 Q. If I could ask you if you could keep your voice up a
17 little bit and maybe speak a little bit closer to the
18 microphone so everybody could hear.
19 A. Okay.
20 Q. And what is your job at the MCC?
21 A. Intelligence research specialist.
22 Q. And how long have you worked at the MCC?
23 A. 11 and a half years.
24 Q. And were you working at the MCC when the 10 South Special
25 Housing Unit was built?
7658
1 A. Yes, sir.
2 Q. And why was that unit built?
3 A. For maximum security inmates being housed.
4 Q. And approximately when was that, if you recall?
5 A. Approximately about three years ago.
6 Q. And were you working at the MCC on November 1, 2000?
7 A. Yes, sir.
8 Q. And what was your shift that day?
9 A. 7:45 to 4:15 p.m.
10 Q. And when you reported to work, where was your office
11 located, where would you go?
12 A. On the third floor.
13 Q. Did there come a time on the morning of November 1st,
14 2000, while you were working in your office that you heard a
15 disturbance?
16 A. Yes.
17 Q. And could you tell us about that and what you heard and
18 what you did?
19 A. Basically I was in my office on the third floor. I heard
20 like a disturbance going on. I pretty much got up and --
21 THE COURT: Please keep your voice up.
22 A. I heard a disturbance going on. At that point I directed
23 myself toward the elevator on the third floor.
24 Q. And what happened as you got out of your office and toward
25 the elevator?
7659
1 A. At that point I was advised that it was a body alarm that
2 was activated in the 10 South area. Then we got on the
3 elevator and proceeded up to the ninth floor.
4 Q. You mentioned a body alarm. Could you describe for us
5 what that is?
6 A. Each officer on the housing unit has a body alarm which
7 pretty much activates if it is down and disabled and
8 registered back to the control center, which identifies that
9 particular radio and location.
10 Q. How would that body alarm be activated, what types of
11 ways?
12 A. Manually by pressing the button or on a tilt fashion. If
13 you sit down and it tilts, it would activate the control
14 center.
15 Q. And that's if the radio goes past a certain angle?
16 A. Yes.
17 Q. Tilts for a certain amount of time?
18 A. Yes.
19 Q. And when you heard that this body alarm had gone off that
20 morning, what unit did you report to?
21 A. Reported to 9 South, which is the segregation unit.
22 Q. And then when you got to 9 South, where did you go?
23 A. Proceeded up the stairs to 10 South, which is the max
24 security housing.
25 Q. What happened there?
7660
1 A. At that point we got to the 46 door, popped the 46 door,
2 which is the initial door. Then you are in a sallyport area.
3 Then you have the 10 South main door.
4 At that point we didn't have access to get into this
5 10 South. We had to get the emergency keys.
6 Q. If we could stop there for a second and display Government
7 Exhibit 4000.
8 You are describing the sallyport area. Is that on
9 the left side of the diagram as you are looking at it, about
10 the middle of the page?
11 A. Yes.
12 Q. And you mentioned something called a 46 door. Could you
13 show us where that is on the diagram?
14 A. This door here.
15 Q. So that would be the door indicating an open position
16 here, all the way on the left of the diagram, basically the
17 first door as you go into the sallyport?
18 A. Yes.
19 Q. And that's the 46 door?
20 A. Yes.
21 Q. You mentioned control, what's that?
22 A. Control center is the main initial part of the institution
23 that controls all the doors, radio control movements and stuff
24 like that.
25 Q. Control would be able to automatically open that first
7661
1 door, that 46 door?
2 A. Yes.
3 Q. And how about the inner door to the 10 South Unit?
4 A. No.
5 Q. How is that opened?
6 A. Manually by a key.
7 Q. And you mentioned that when you got into this sallyport
8 area you couldn't get through the second door; is that
9 correct?
10 A. Yes.
11 Q. So what happened as you entered the sallyport and you
12 couldn't get through the second door, tell us what happened
13 after that?
14 A. At that point we was advised to gain the emergency keys
15 from control center, and they was --
16 THE COURT: Advised by whom?
17 THE WITNESS: By the captain.
18 Captain Aponte advised the Security Officer Scotto to
19 go down to control center and get the keys, emergency keys.
20 Q. And approximately, if you best estimate, how many officers
21 are you in that sallyport area as you are waiting to get
22 through the door?
23 A. Approximately 15 to 20.
24 Q. And while you are in the sallyport area waiting for the
25 key, could you see through the second door into the unit?
7662
1 A. Yes.
2 Q. And what is your view generally as you are looking
3 through?
4 A. You are basically looking at the attorney visiting room
5 area and the officers station.
6 MR. GARCIA: And if I could have Government Exhibit
7 40003 displayed for everyone, which I believe is already in
8 evidence as a defense exhibit.
9 Q. Is that a fair view, a fair view of what you could see
10 from the door looking into 10 South?
11 A. Yes.
12 Q. And could you describe for us what, if anything, you saw
13 as you were waiting for the key to come up through the window
14 of that 10 South door?
15 A. Basically I was trying to gain some type of intelligence
16 to see if there was any unusual activity going on in the
17 housing unit. During that time attorney visits were being
18 conducted with the other inmates from 9 South and probation.
19 At that point, while I was looking into the window, I
20 saw Inmate Salim standing on the back side of the column on
21 the right-hand side.
22 Q. And did the inmate appear to be restrained in any way when
23 you saw him?
24 A. No.
25 Q. Is there anything else you can remember about his
7663
1 appearance?
2 A. Yes. He had blood on his hands.
3 Q. And did you advise your fellow officers at that point that
4 you had seen an inmate on the floor?
5 A. Yes. I advised the captain that an inmate was out on the
6 housing unit, and the captain then asked me, what do you mean?
7 That you saw an inmate? I said, yes, I saw Salim on the
8 outside portion of the 10 South.
9 Q. Now, is it fair to say up to this time there had been
10 efforts made to reach the officer on duty on that floor?
11 A. Excuse me? Repeat.
12 Q. Efforts made to reach Officer Pepe, who was on duty?
13 A. Yes. At that point we was trying to gain some type of
14 intelligence by listening to the radio, because you can pretty
15 much hear anything once the body alarm is activated.
16 Q. Anyone hear anything as far as you know?
17 A. No.
18 Q. And you mentioned you saw Inmate Salim. Were you familiar
19 with the Inmate Salim prior to this date?
20 A. Yes.
21 Q. What he looked like? His name?
22 A. Yes.
23 MR. GARCIA: If I could have Government Exhibit 4059,
24 which is already in evidence, displayed.
25 Q. Do you recognize that person?
7664
1 A. Yes.
2 Q. Who is that?
3 A. Salim.
4 Q. Did there come a time that you gained entrance through the
5 second door of the 10 South Unit?
6 A. Yes. Once the emergency keys arrived, at that point we
7 gained access into 10 South.
8 Q. And as far as you can recollect, who were the first Bureau
9 of Prison personnel through the door?
10 A. I was.
11 MR. GARCIA: And if we could have Government Exhibit
12 4000 up again.
13 Q. And if you would, Officer Jenkins, could you describe for
14 us what you did after you gained entrance to 10 South that
15 morning?
16 A. Once I gained entrance into the 10 South housing unit, I
17 proceeded to go into, which is a tactical term, going stealth,
18 proceeding toward the column area where Salim was standing,
19 over toward Cell 2 and 3 and proceeded to go on. There was a
20 lot of blind spots in the housing unit, so I was proceeding
21 with caution.
22 At that point, I got toward the office area and I saw
23 Inmate Salim running -- well, basically coming towards me. At
24 that point he turned around and started to run towards the
25 back area of 10 South.
7665
1 Q. When you say "the back area," on this diagram where would
2 that be?
3 A. Pretty much the location back towards Cell 6 and 5 and
4 towards the recreation area.
5 Q. And what do you do after you saw Salim turn and run?
6 A. Again, I just proceeded to go with caution because there
7 were other inmates in Cell 2, 3, 4, and 5. And at that point,
8 as I was coming around, I noticed blood on the floor. I
9 indicated to the other staff members who was behind me that
10 there's blood on the floor.
11 Q. And what did you do after that?
12 A. Again, I proceeded to go towards where Salim was headed,
13 passing 4 and 5 cell. I reach the recreation cell, which is a
14 holding cell for recreation conducted for individuals up
15 there. I grabbed a plexiglass shield from the recreation
16 cage, which is used for soundproofing if they have to be used
17 for attorney visits.
18 Q. Can you just describe for us generally what that shield or
19 soundproofing barrier looks like?
20 A. It is pretty much about ten feet plexiglass with metal
21 rods on each side.
22 MR. GARCIA: If we could have Government Exhibit
23 40003 displayed for the witness.
24 Q. Directing your attention to the object leaning on the
25 right side of that photograph, does that look familiar?
7666
1 A. Yes.
2 Q. And what is that?
3 A. Plexiglass.
4 Q. Is that the type of shield you used that day?
5 A. Yes.
6 MR. GARCIA: Your Honor, I offer Government Exhibit
7 4005.
8 THE COURT: Received, 4005.
9 (Government Exhibit 4005 received in evidence)
10 MR. GARCIA: And if we could display that for the
11 jury.
12 Q. After you picked up a shield like this one displayed in
13 4005, Officer Jenkins, what do you do next?
14 A. At that point I picked up the shield and proceeded to go
15 again where Inmate Salim was headed.
16 MR. GARCIA: If we could have Government Exhibit 4000
17 back on for a minute.
18 Q. Again, that's towards the back area towards Cell 6?
19 A. Yes.
20 Q. And did there come a time you again saw Salim as you came
21 around toward Cell 6?
22 A. Yes. At that point I saw Inmate Salim trying to go back
23 into Cell 6 with some keys in his hand, trying to get back
24 into Cell 6.
25 Q. Did he get into Cell 6 that you could see?
7667
1 A. Yes.
2 Q. What did you do after he entered the cell?
3 A. Again proceeded with caution. Coming around there's a lot
4 of blind areas. I pretty much got towards Cell 6 and in the
5 right-hand corner where the electrical closet is, Inmate
6 Mohamed was standing there.
7 Q. And had you seen Inmate Mohamed prior to that date?
8 A. Yes.
9 Q. And you were familiar with him?
10 A. Yes.
11 Q. And looking around the courtroom today, do you see the
12 person you knew as Inmate Mohamed?
13 A. Yes.
14 Q. And could you point him out for us?
15 A. (Witness pointing)
16 Q. Describe something that he is wearing.
17 A. Glasses with the gray striped shirt.
18 THE COURT: The record will indicate the witness has
19 identified the defendant K.K. Mohamed.
20 BY MR. GARCIA:
21 Q. After you saw the defendant in the corner here by the
22 electrical closet in the upper right-hand side of Government
23 Exhibit 4000, what happened next?
24 A. At that point, Mohamed lunged at me with a substance, a
25 bottled substance, squirting something on my person, and I
7668
1 pretty much blocked it with the shield and pushed him toward
2 the corner of that electrical closet area.
3 Q. And could you describe the bottle that you saw?
4 A. It's a commissary item that they purchase. It's a honey
5 bottle shaped in a bear with the yellow cap.
6 Q. And he was squirting something at you from this bottle?
7 A. Yes.
8 Q. And after you pushed him to the wall with the shield, what
9 happened?
10 A. At that point I pretty much had him contained in that
11 area. My back was toward Cell 6. Inmate Salim then came out
12 of the cell, lunging at me, squirting an object and had a
13 white object in his other hand. At that point I kicked the
14 door with my left foot and pretty much slammed the door on his
15 face and he went back into the cell. After I kicked the door,
16 he then tried to come out of the cell, trying to strike me
17 from the rear.
18 Q. And during that time what was Inmate Mohamed doing?
19 A. Nothing. He was pretty much subdued. He couldn't do
20 anything.
21 Q. Because of the shield?
22 A. Yes.
23 Q. And did there come a time that you opened -- your foot
24 came away from the cell door of Cell 6?
25 A. Yes.
7669
1 Q. Why was that?
2 A. Because Officer Pepe then picked his head up and looked at
3 me right in my eyes out of the window of that cell.
4 Q. There is a window in the cell door, Cell 6 door?
5 A. Yes.
6 Q. Could you describe for us what Officer Pepe looked like
7 when you saw him through that window?
8 A. Yes. He had an object sticking out of his left eye,
9 blood, his head was swollen, his eye was swollen. That's
10 about it.
11 Q. And after you took your foot away from the door to Cell 6,
12 what happened next?
13 A. Then at that point I decided to just, to let