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 67 of the trial, June 21, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           June 21, 2001
                                               9:55 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        MICHAEL GARCIA
            Assistant United States Attorneys
            Attorneys for defendant Khalfan Khamis Mohamed




















   1            (Pages 7823-7824 sealed)

   2            (In open court; jury present)

   3            THE COURT:  Good morning.

   4            JURORS:  Good morning.

   5            THE COURT:  The government may call its next witness.

   6            MR. GARCIA:  Thank you, Judge.  The government calls

   7   Robert Parrish.


   9        called as a witness by the government,

  10        having been duly sworn, testified as follows:


  12   BY MR. GARCIA:

  13   Q.  Good morning, Mr. Parrish.

  14   A.  Good morning.

  15   Q.  If you could keep your voice up and maybe move a little

  16   closer to the microphone, I think we will hear you a little

  17   better.  Thank you.

  18            Mr. Parrish, are you retired?

  19   A.  Yes, I am.

  20   Q.  When did you retire?

  21   A.  December 30, 2000.

  22   Q.  Prior to retiring, where did you work?

  23   A.  The Metropolitan Correctional Center, New York.

  24   Q.  How long did you work at the Bureau of Prisons before you

  25   retired?


   1   A.  Twenty-five years.

   2   Q.  Were you working at the Metropolitan Correctional Center

   3   in November 2000?

   4   A.  Yes, I was.

   5   Q.  What was your job at that time?

   6   A.  Special investigative agent.

   7   Q.  Were you working back on November 1, 2000?

   8   A.  Yes, I was.

   9   Q.  Did there come a time that you responded to a body alarm

  10   that day?

  11   A.  That is correct.

  12   Q.  What did you do after you heard the alarm?

  13   A.  After I heard the alarm we all proceeded up the elevator

  14   to 9 South, 10 South where the alarm was.  Upon entering the

  15   unit we proceeded upstairs, which is the high security unit,

  16   which is 10 South.  As staff approached, the outer door was

  17   able to be opened by the control center, which is

  18   electronically controlled from our control center.  But the

  19   inner door we were unable to get in because no one had the

  20   key.  So we had to wait for staff to go to the emergency

  21   control center to get an emergency key to allow us in.

  22   Q.  Did there come a time that key came to the floor?

  23   A.  Yes, it did.

  24   Q.  Can you tell us what you did after you entered the 10

  25   South unit.


   1   A.  Prior to entering 10 South, staff observed an inmate

   2   lingering behind a pillar attempting to hide.  He hollered

   3   there is an inmate loose to the unit.  When the key arrived

   4   and the door opened, staff entered the unit.  Several staff,

   5   myself included all proceeded, about fourth down the hallway,

   6   myself, Joe Rementer, special investigative agent, both worked

   7   in the same office, we stopped staff behind us and turned

   8   around and proceeded to check the areas behind us, which you

   9   have a couple of inmate cells to the rear, we have attorney

  10   conference rooms, recreation room.  So we checked these areas

  11   ourselves.

  12   Q.  If I could ask you to keep your voice up a little bit

  13   more, and if we could display for everyone Government's

  14   Exhibit 4000, which is already in evidence, the diagram of 10

  15   South.

  16            Mr. Parrish, you were just describing for us how you

  17   came in.  I believe you initially came to the right you but

  18   you stopped at some point.  Could you indicate for us on the

  19   diagram where you stopped, approximately.

  20   A.  Approximately, it would be between cell number 3 and you

  21   see an area saying bath, toilet storage area.

  22   Q.  If I could interrupt you for one second, if it is possible

  23   to have the jurors' monitors displaying this.

  24            If you could proceed, Mr. Parrish.

  25   A.  Between cell 3 and you see an area right there that says


   1   storage, myself, Joe Rementer and the staff behind us, we

   2   stopped there and turned around and decided to check all the

   3   cell doors behind us to make sure there was no other inmate in

   4   that area.

   5   Q.  Indicating that you stopped approximately in the middle of

   6   the lower part of Government's Exhibit 4000?

   7   A.  Yes.

   8   Q.  The doors you checked, could you just give us an overview

   9   of what you checked when you turned around?

  10   A.  We turned around checked cell 3, cell 2, the recreation

  11   cage, the inmate visiting, attorney visiting rooms -- there is

  12   a total of two inmate visiting rooms, two attorney rooms, cell

  13   1.  There is a telephone room, which is basically where we

  14   keep all the equipment for telephone monitoring.  We checked

  15   that total area.

  16   Q.  If you recall, were there people in those rooms when you

  17   were checking the doors?

  18   A.  Yes, there was.

  19   Q.  Were they civilians or Bureau of Prisons personnel?

  20   A.  They were civilians and the first says inmate visiting and

  21   attorney, there was two females if I am not mistaken in that

  22   room, and an inmate in the adjoining room.  The next inmate

  23   visiting attorney room there was, if I am not mistaken, one or

  24   two attorneys and an inmate.

  25   Q.  After you checked this area, checked the doors in that


   1   area, what did you do next?

   2   A.  After we checked those areas, I proceeded back around to

   3   the hallway heading back towards the lieutenant's office and

   4   the area itself.

   5   Q.  What if anything did you see as you were proceeding back

   6   to that area?

   7   A.  As I was proceeding back to that area, as I got

   8   approximately a few feet past the storage area you see, which

   9   is the hallway, that is the time I observed Officer Louis Pepe

  10   approaching me with several staff members, with some form of

  11   black object protruding from his facial area, and his face was

  12   totally covered in blood as well as his clothes.

  13   Q.  What did you do next?

  14   A.  At that time I started to proceed towards the lieutenant's

  15   office, approximately got to cell 4, somewhere in that

  16   location.  At that time I heard a commotion going to the back,

  17   and by that time, by the time I got almost to the office,

  18   that's when they approached me with an inmate.

  19   Q.  What happened with that inmate?

  20   A.  They escorted -- they actually physically was carrying

  21   that inmate, and I stepped to the side to allow them to come

  22   by me, due to the fact that the hallway is so narrow.  At that

  23   time I proceeded back to the front with the staff that was

  24   escorting that inmate, and they brought him all the way back

  25   up to the front area and placed him on the floor in between


   1   the officer's station, as you can see, and it says inmate

   2   visiting area.  He was actually placed on the floor there.

   3   Q.  Mr. Parrish, generally in a situation like this, would

   4   inmates who are involved have their clothing removed?

   5   A.  Yes, they would.

   6   Q.  Why would that be?

   7   A.  Due to the fact that there was a weapon and for the safety

   8   of staff as well as inmates, to insure that this individual

   9   did not have any weapons concealed on them during that time.

  10   Q.  What did you do after that?

  11   A.  After that the inmate, I stayed in that position the whole

  12   time until they got an elevator up to take the inmate off the

  13   unit, at which time they took him off the unit, and then I

  14   proceeded to the back.

  15   Q.  Mr. Parrish, if you remember, was there an associate

  16   warden or assistant warden on the floor?

  17   A.  There was an associate warden, psychologist, several other

  18   department heads standing in this area where the inmate was

  19   laying face down on the floor.

  20            MR. RUHNKE:  I can't see from my vantage what the

  21   agent is referring to.

  22   A.  This is the front area by the officer's desk, officer

  23   station.

  24   Q.  Mr. Parrish, at that time in November of 2000, were you

  25   familiar with the procedure for making tapes on this floor?


   1   A.  No, not correct.

   2   Q.  Did there come a time when someone asked you to retrieve a

   3   tape from an office on this floor?

   4   A.  Yes, there did.

   5   Q.  Can you tell us about that.

   6   A.  I received a call to ask us did we have a tape of the

   7   area, at which time I said yes.  I perceived it was an agent.

   8   I am not sure which agent it was.  I proceeded back down the

   9   hallway toward what you see is the lieutenant's office.  It is

  10   the back side of the unit.  You see a sign saying it's the

  11   lieutenant's office.  There is a total of two monitors in

  12   there.  One sits to the left-hand side of the desk and there

  13   is a monitor to the bottom.  I retrieved a tape from the very

  14   top monitor and I took it out and I handed it to an

  15   Afro-American agent.

  16   Q.  That was the same day or a different day?

  17   A.  That was the same date.

  18   Q.  Do you recall approximately what time?

  19   A.  No.  It was sometime in the evening.  I am not for sure

  20   exactly what time it was.

  21   Q.  Did there come a time when you again heard from the FBI

  22   that day about tapes?

  23   A.  Yes, I did.

  24   Q.  Tell us what happened that time?

  25   A.  I received a phone call from an agent -- as to his name or


   1   who he was or the color of his skin I have no idea -- as to

   2   that they didn't have the correct tape.  At that time I told

   3   him there should be another tape upstairs.  When I received

   4   the call I was standing at the officer's station.  I proceeded

   5   back to the lieutenant's office.  Then I looked and I

   6   retrieved the tape from the bottom recorder.  I brought that

   7   tape up front, which is an officer's station.  We have a

   8   monitor and VCR up there and I placed it into the VCR and

   9   nothing happened.  I couldn't eject the VCR.  I couldn't eject

  10   the tape from the VCR.  At that time there was several staff

  11   as well as agents there and there was a mechanical service

  12   person.  We couldn't get our arm between the cabinets to get

  13   down to release the VCR.  At that time an officer did

  14   disconnect the wire from the VCR.  We pulled the VCR out.  The

  15   individual from mechanical services actually took a

  16   screwdriver, took the top off the VCR, pushed the button, the

  17   tape ejected, and I handed that to an agent.

  18   Q.  Was this the same agent or a different agent from the

  19   first time?

  20   A.  It was a different agent if I am not mistaken.

  21   Q.  Are you aware what happened to the first tape that was

  22   brought?

  23   A.  No, I do not recall.

  24   Q.  As far as you were aware, were there any other tapes in

  25   any machines in that lieutenant's office?


   1   A.  Not that I can recall at this time.

   2            MR. GARCIA:  Thank you.


   4   BY MR. STERN:

   5   Q.  Sir, I want to talk to you about the time when you first

   6   saw someone bringing an inmate from somewhere back in the

   7   cells towards the front.  Did you know the inmates who at that

   8   time were on 10 South?

   9   A.  Did I know the inmates --

  10   Q.  Would you recognize them if you saw them?

  11   A.  No, not for sure.

  12   Q.  Had you spent much time on 10 South?

  13   A.  I make my rounds but there were several inmates.  I

  14   couldn't tell you that I could identify what inmate was

  15   brought to the front.

  16   Q.  So you don't know if it was Mr. Mohamed or someone else?

  17   A.  No, I don't.

  18   Q.  But the inmate that you saw being brought, whoever it was,

  19   was brought all the way to the front near the officer's desk;

  20   is that right?

  21   A.  That is correct.

  22   Q.  From the time that inmate was carried past the vicinity of

  23   the lieutenant's office, you were in the company of that

  24   inmate until he was brought downstairs, right?

  25   A.  That is correct.


   1   Q.  Could you tell me who the officers were carrying that

   2   inmate from the back up to the front?

   3   A.  I cannot recall what officers were carrying him.  It's

   4   been since October.  There were several staff members.

   5   Q.  I am sorry.

   6   A.  I cannot recall what officers that were actually carrying

   7   him.

   8   Q.  Do you recall if they were African American or white?

   9   A.  It could have been a mixture of both.

  10   Q.  But you don't recall?

  11   A.  No, I really don't.

  12   Q.  So as you sit here, you couldn't tell me anything about

  13   who those people were?

  14   A.  No, I could not.

  15   Q.  Could you tell me how many people were involved in doing

  16   that?

  17   A.  No, I could not.

  18   Q.  When they brought him, whoever this person was, up to the

  19   front, was he struggling with them?

  20   A.  No.

  21   Q.  Did he seem to be unconscious?

  22   A.  No, he did not.

  23   Q.  He was, as far as you could tell, awake and alert but

  24   passive?

  25   A.  He was alert and impassive.  He wasn't unconscious, as far


   1   as I could tell.

   2   Q.  When he was brought to the front, he was put down -- if we

   3   could have Exhibit 4000 -- he was put down right near this

   4   desk that looks like sort of a half a hexagon or something

   5   like that; is that right?

   6   A.  Yes.

   7   Q.  When he was there, he was almost right in front of the

   8   inmate visiting cell nearest the top of the diagram; is that

   9   right?

  10   A.  Yes, between attorney and inmate visiting cell.

  11   Q.  As you stood there and this inmate was on the ground, was

  12   he face up or face down?

  13   A.  Face down.

  14   Q.  Face up.

  15   A.  Face down.

  16   Q.  Face down?

  17   A.  Yes.

  18   Q.  Did you see him struggle at all during the time you saw

  19   him?

  20   A.  No, I did not, that I recall.

  21   Q.  Did you see him try to do anything to anyone?

  22   A.  Not that I can recall.

  23   Q.  Did you see him handcuffed?

  24   A.  Yes, he was handcuffed.

  25   Q.  Was that in front of him or behind him?


   1   A.  It was behind him.

   2   Q.  Did you see anyone touch him in any way?

   3   A.  No --

   4   Q.  Did anyone hit him?

   5   A.  No, I didn't see that.

   6   Q.  Did anyone kick him?

   7   A.  No I didn't see that.

   8   Q.  Did anyone strike him?

   9   A.  No, I did not see that.

  10   Q.  Did any medical staff try to see him?

  11   A.  There were several medical staff, a physician assistant

  12   and a hospital administrator.  I know one medical staff member

  13   looked at him and at that time he was escorted downstairs.  As

  14   to which staff member, I cannot recall at this time.

  15   Q.  Did you know who those staff members were from the medical

  16   staff?

  17   A.  Dr. McDonald, and I can't remember the PA's name.

  18   Q.  But there was a PA?

  19   A.  Yes, there was.

  20   Q.  As you sit here now, you don't remember whether it was the

  21   PA or the doctor who went up and treated this inmate?

  22   A.  No, I don't remember.

  23   Q.  You are aware, are you not, that there is a monitoring

  24   system for 10 South?

  25   A.  That is correct.


   1   Q.  That system is capable of monitoring each cell, right?

   2   A.  That is correct.

   3   Q.  It is capable of monitoring what are called rec rooms, the

   4   bigger empty cells, correct?

   5   A.  That is correct.

   6   Q.  It is capable of monitoring the attorney visit rooms,

   7   right?

   8   A.  That is correct.

   9   Q.  Monitors the entranceway to 10 South?

  10   A.  That is correct.

  11   Q.  The point of that system is that you can see what is going

  12   on in 10 South even if you are not going all around 10 South

  13   yourself, that is, sitting at the front desk or the

  14   lieutenant's office, you can keep an eye on the whole facility

  15   of 10 South, right?

  16   A.  That is correct.

  17   Q.  You are also aware, are you not, that at least one of

  18   those machines is capable, whether it did it on this day or

  19   not, is capable of making a videotape of what occurs.

  20   A.  That is correct.

  21   Q.  That videotape would show rotating shots of each area on

  22   10 South that is being monitored, right?

  23   A.  That is correct.

  24   Q.  So when you are watching what you see as -- I am not

  25   saying exactly, but, for example, you would see a shot of cell


   1   6, a shot of cell 5, a shot of the rec room, and it keeps

   2   rotating through that series of shots, correct?

   3   A.  That is correct.

   4   Q.  Do you know who if anyone's job it is to put tapes into

   5   those machines?

   6   A.  Since I have no working knowledge as to how the taping

   7   system was going on at that time, the only thing I can think,

   8   it was the lieutenant's responsibility or the officer just to

   9   place a tape in the machine.

  10   Q.  As far as you know, a lieutenant or officer's

  11   responsibility?

  12   A.  Yes, who was assigned to that area.

  13   Q.  Are you aware if there are rules or regulations about how

  14   often those tapes should be changed?

  15   A.  Prior to this, no, I was not.

  16   Q.  Are you aware how long those tapes can tape what is going

  17   on without running out?

  18   A.  Prior to me coming back to New York, no.

  19   Q.  Are you aware now of how long those tapes run?

  20   A.  Not at this time, because the procedure has changed since

  21   I left here in December.

  22   Q.  Sir, I am really having trouble hearing you.

  23   A.  No, I am not.

  24   Q.  You spoke with an agent, an FBI agent, on November 1,

  25   right?


   1   A.  That is correct.

   2   Q.  That was the day this incident occurred, wasn't it?

   3   A.  That is correct.

   4   Q.  You were aware that this agent was investigating what had

   5   occurred on 10 South that day, correct?

   6   A.  That is correct.

   7   Q.  If I were to tell you the agent's name was David B. Stone,

   8   would that ring a bell with you as the agent with whom you

   9   spoke?

  10   A.  No, because I spoke to several agents that day.

  11   Q.  They made clear to you that they wanted whatever evidence

  12   you could provide about what had happened, right?

  13   A.  That is correct.

  14   Q.  And they told you that one piece of evidence might be this

  15   videotape, correct?

  16   A.  They asked for the videotape.

  17   Q.  You knew they asked for it as a piece of evidence in

  18   connection with this case, right?

  19            MR. GARCIA:  Objection.  Asked and answered.

  20            THE COURT:  Yes, move on.

  21   Q.  So you gave them a videotape, fair to say?

  22   A.  That is correct.

  23   Q.  There are facilities on 10 South for viewing a videotape,

  24   aren't there?

  25   A.  That is correct.


   1   Q.  Did you view that videotape before you gave it to them?

   2   A.  No, I did not.

   3   Q.  Did you try to provide them with every videotape that

   4   could be found in the lieutenant's office?

   5   A.  No, I only brought those two videotapes, the tapes that

   6   was exactly in the machine at that time.

   7   Q.  So on November 1, you provided them with two videotapes?

   8   A.  I provided them the first tape and I received a call

   9   saying it was the wrong tape.  Then I told them there should

  10   be a second tape.  I proceeded back to the office and I pulled

  11   the second tape out, and I brought that to the front.  So

  12   there was a total of two tapes, two separate occasions.

  13   Q.  On November 1, how many tapes did you give them?

  14   A.  Two tapes.

  15   Q.  There came a time, did there not, when an agent came back

  16   to talk to you again, right, about a week later?

  17   A.  About a week later?

  18   Q.  Yes.

  19   A.  I can't recall.  Several agents came back to the

  20   institution within a period of time --

  21   Q.  About a week later an agent named Joseph D. Foelsch coming

  22   back to talk with you?

  23            I am sorry.  It would have been over the telephone.

  24   He didn't actually come to talk to you.

  25   A.  I have talked to Joseph D. Foelsch over the phone.  As to


   1   what we talked about, I have no idea or knowledge at this

   2   time.

   3   Q.  Do you recall that Agent Foelsch was asking you about the

   4   tapes that you provided to the FBI?

   5   A.  I can't recall.

   6   Q.  Would it refresh your recollection if I were to tell you

   7   that you told him --

   8            MR. GARCIA:  Objection.

   9            THE COURT:  Yes, sustained.  Do you want to show him

  10   something to refresh his recollection?

  11            MR. STERN:  Sure.

  12   Q.  Agent, I am handing you a document which will ultimately

  13   be marked KKM12 for identification and I would ask you to take

  14   a look at it.  I want you to read through that and look up

  15   when you are done, Agent.

  16   A.  All right.

  17            No, I don't recall this conversation.

  18   Q.  Did you have a chance to read that?

  19   A.  Yes, I did.

  20   Q.  Before I ask you about that, how much time elapsed from

  21   the time you gave the agent the first tape until the time you

  22   went back and gave the agent a second tape?

  23   A.  There was so many things going on that day, I couldn't

  24   actually tell you how much time elapsed between the time I

  25   gave them the first tape and the second tape.


   1   Q.  Was it minutes?

   2   A.  I couldn't tell you whether it was minutes, hours or

   3   seconds.

   4   Q.  So you don't remember if you gave them one in the

   5   beginning of the day and one at the end or if you gave them

   6   one and immediately gave them another?

   7   A.  I can't tell you how much time elapsed between the first

   8   and the second tape.

   9   Q.  I am not asking you the exact amount of time.  I am asking

  10   you generally.

  11            MR. GARCIA:  Objection.

  12            THE COURT:  Overruled.

  13   A.  I am not sure -- it wasn't morning -- if it was after the

  14   first tape, sometime in the afternoon -- I can't tell you

  15   whether it was minutes or hours.

  16   Q.  You had a chance, I take it, to examine these tapes at

  17   some point, didn't you?

  18   A.  No, I did not examine the tapes.

  19   Q.  Were you ever aware that one tape started at 11 p.m. on

  20   October 31?

  21   A.  No, I was not aware.

  22   Q.  Were you ever aware that a tape stopped at 1:04 on

  23   November 1?

  24   A.  No, I was not.

  25   Q.  Were you ever aware that there was a copy of a tape given


   1   to the FBI?

   2   A.  No, I was not.

   3   Q.  Were you ever aware that the original tape was reused and

   4   therefore couldn't be viewed?

   5   A.  No.  I have no knowledge of that.  I cannot recall that.

   6   Q.  Did you ever tell any of those things over the telephone

   7   on November 9 to Special Agent Joseph D. Foelsch of the FBI?

   8   A.  No, I cannot recall that, and I have checked and searched

   9   in my mind.  I was asked that question previously.

  10   Q.  I am asking you, did you say those things?  Yes or no.

  11   A.  No.

  12   Q.  You did not?

  13   A.  I cannot recall saying those things.

  14            MR. STERN:  I have nothing else.  Thank you.

  15            MR. GARCIA:  Very briefly, Judge.


  17   BY MR. GARCIA:

  18   Q.  Is it fair to say, Mr. Parrish, that you had a number of

  19   conversations with the FBI about those tapes from the period

  20   of November 1 through November 9?

  21   A.  That's a possibility, it is.

  22            MR. GARCIA:  I have nothing further.

  23            THE COURT:  Thank you.  You may step down.

  24            (Witness excused)

  25            THE COURT:  The government may call its next witness.


   1            MR. GARCIA:  The government calls Wilford Baptiste.


   3            (Continued on next page)

























   2        called as a witness by the government,

   3        having been duly sworn, testified as follows:


   5   BY MR. GARCIA:

   6   Q.  Sir, are you an agent with the FBI?

   7   A.  Yes, I am.

   8   Q.  And on November 1st, 2000, did there come a time that you

   9   went to the Metropolitan Correctional Center?

  10   A.  Yes, I did.

  11   Q.  About what time was that?

  12   A.  About 10:30, 11:00 in the morning.

  13   Q.  After you got to the MCC where did you go, what unit, do

  14   you recall?

  15   A.  Yes.  10 South, I believe.

  16   Q.  And did there come a time that day that you received a

  17   videotape?

  18   A.  Yes, I did.

  19   Q.  Do you recall approximately what time that was?

  20   A.  About 11:30, maybe close to 12.

  21   Q.  Who was it that handed you that videotape?

  22   A.  Robert Perrish from MCC.

  23   Q.  And could you tell us just what happened when he gave you

  24   that tape?

  25   A.  When he gave me the tape, I took it over to our office at


   1   26 Federal Plaza here in New York City.  I went up to the

   2   video room and I reviewed the tape with the person that was in

   3   charge of the video room, Steve Wagner.

   4   Q.  And just to back up a little bit, where were you when Mr.

   5   Perrish handed you the tape?

   6   A.  Right in the sort of the waiting room of the cell area, 10

   7   South.

   8            MR. GARCIA:  If we could have Government Exhibit 4000

   9   for one minute.

  10   Q.  Could you just show us on Government Exhibit 4000 where

  11   you were when you got the tape, the left-hand side being the

  12   entryway?

  13   A.  You said the left-hand side is the entrance area?

  14   Q.  Yes.

  15   A.  Right over here.

  16   Q.  If you could just describe it for us.

  17   A.  Okay.

  18   Q.  Which room?

  19   A.  To your left by the office area, and then slightly in

  20   front of that.

  21   Q.  So just inside the unit?

  22   A.  Yes.

  23   Q.  Fair to say?

  24   A.  Uh-huh.

  25   Q.  And you mentioned that you took the tape back to 26


   1   Federal Plaza, is that the FBI office downtown?

   2   A.  That's correct.

   3   Q.  And you viewed the tape at that time?

   4   A.  Yes, I did.

   5   Q.  And your recollection, what did the tape show?

   6   A.  Showed hallways, showed a couple of doors, that was

   7   basically it.

   8   Q.  Did it show any of the interiors of the cells?

   9   A.  No, it did not.

  10   Q.  And did it show the date, November 1st?

  11   A.  No, it did not.

  12   Q.  And what did you do after you viewed that tape?

  13   A.  I called Dave Stone, the supervisor, and advised him that

  14   this was the tape that he wanted me to get.

  15   Q.  And what did you do after that?

  16   A.  He told me to come back to MCC and retrieve the correct

  17   tape.

  18   Q.  And what did you do then?

  19   A.  Okay.  I proceeded over to the MCC.  When I arrived, Dave

  20   Stone was leaving and he said he has the correct tape.  So I

  21   left the other tape with the receptionist downstairs to return

  22   to Robert Perrish for me.

  23   Q.  And so you didn't have anything to do with retrieving the

  24   second tape up on 10 South?

  25   A.  No, I did not.


   1            MR. GARCIA:  I have nothing further, Judge.


   3   BY MR. STERN:

   4   Q.  Agent, you went to 10 South that morning.  You were

   5   looking to get a tape to provide evidence in connection with

   6   this case, were you not?

   7   A.  Yes.

   8   Q.  And you spoke to Mr. Perrish because you thought that he

   9   could get for you just the tape you were looking for, right?

  10   A.  Well, Dave Stone spoke to him and advised him to provide

  11   the tape to me.

  12   Q.  Did you go with him to the place where he got the tape

  13   from?

  14   A.  No, I did not.

  15   Q.  Did you see where he got that tape from?

  16   A.  No, I did not.

  17   Q.  He just brought you a tape and then you took it with you,

  18   right?

  19   A.  That's correct.

  20   Q.  What time was it when you got back to your offices?

  21   A.  Around 12:00, a little after 12 probably.

  22   Q.  How long did it take you to watch that tape?

  23   A.  Maybe a half hour, a little more.

  24   Q.  And as you watched that tape, it was apparent to you that

  25   that tape had nothing to do with what you were interested in,


   1   right?

   2   A.  Yes.

   3   Q.  So did you, very shortly after finishing watching it, call

   4   to try to figure out what to do next?

   5   A.  Yes, I did.

   6   Q.  And what time was it, if you recall, when you got back to

   7   MCC and you say your supervisor, Mr. Stone, was just leaving,

   8   what time was that?

   9   A.  I believe it might have been 1:00, approximately.

  10   Q.  So something like two or three hours had elapsed between

  11   the time you got the first tape and the time the second tape

  12   was gotten; is that correct?

  13   A.  That's about right.

  14   Q.  And that second tape also had nothing on it to do with

  15   this case, did it?

  16   A.  I don't know.  I didn't have that tape.

  17            MR. STERN:  Thanks.  I have nothing else.

  18            MR. GARCIA:  Nothing, Judge.

  19            THE COURT:  Thank you, Agent.  You may step down.

  20            (Witness excused)

  21            THE COURT:  The government may call the next witness.

  22            MR. FITZGERALD:  David Stone.

  23    DAVID STONE,

  24        called as a witness by the government,

  25        having been duly sworn, testified as follows:



   2   BY MR. GARCIA:

   3   Q.  Good morning, Mr. Stone.

   4   A.  Good morning.

   5   Q.  Are you an agent with the FBI?

   6   A.  Yes, I am.

   7   Q.  And were you working on November 1, 2000?

   8   A.  Yes, I was.

   9   Q.  And did there come a time on that day that you first

  10   viewed a videotape in your offices at 26 Federal Plaza?

  11   A.  Yes.

  12   Q.  And generally what did that tape show, if you recall?

  13   A.  It was a tape which showed the hallways and a doorway of

  14   the Metropolitan Correctional Center.

  15   Q.  And after viewing that tape, what did you do?

  16   A.  Well, we had already been conducting an investigation over

  17   there and I called over and told them that this tape was not

  18   the tape that showed the cell area which we were

  19   investigating, and so they said, well, then come on back over

  20   and we'll get that tape for you.  So I went back over to the

  21   Metropolitan Correctional Center and obtained another tape.

  22   Q.  And could you tell us how that happened that you got that

  23   second tape?

  24   A.  I received the second tape, I went back up to the cell

  25   block area we were investigating, and I met Mr. Perrish and


   1   Mr. Perrish provided me a tape.  It was actually in a machine

   2   by the front door, and they said that they were having

   3   problems getting it out of the machine so they got a

   4   technician to come up and he undid the machine and took off

   5   the cover and then ejected the tape from that, and I took it

   6   from Mr. Perrish there.

   7   Q.  Agent Stone, let's back up a little bit.  When you first

   8   got to the unit, did you see Mr. Perrish?

   9   A.  Yes.

  10   Q.  When you first got to 10 South Unit?

  11   A.  When I came back at 10 South, I saw Mr. Perrish.

  12   Q.  And did he have the tape at that time?

  13   A.  No, he did not.

  14   Q.  Did you ask him to get you the tape?

  15   A.  I told him that the first tape we got was not the tape and

  16   to get -- and we needed the tape.  He then went and got the

  17   tape.

  18   Q.  And where did he go and where did you go after you asked

  19   him to get the tape?

  20   A.  After I told him that we needed another tape, or the tape,

  21   he went down the cell area, which appeared to be in the back,

  22   and then I conducted some other duties in the rec. room there

  23   that was right off to the, my left, I guess, or right.

  24            MR. GARCIA:  If we could just put up 4000 quickly?

  25   Q.  And going back, you said that Mr. Perrish went down the


   1   cell area, towards the back.  If you could just indicate for

   2   us which way he went on this diagram.

   3   A.  Well, the front door was here, and we were standing in

   4   this --

   5            THE COURT:  Referring to the far left of that diagram

   6   for the front door?

   7            THE WITNESS:  That's correct.  On the far left, that

   8   was the main door I came in.

   9            I met Mr. Perrish here, in that little foyer area,

  10   and then he continued down this hallway, along the right side

  11   down the hallway to the back.

  12   Q.  On the bottom?

  13   A.  This area.

  14   Q.  Bottom of the diagram where it says Cell 2, Cell 3?

  15   A.  Correct.  He continued down that hallway in that area, and

  16   then I entered into the recreation room and talked with other

  17   agents conducting investigation.  And he subsequently came

  18   back to the foyer area outside the recreation room, and at

  19   that time he told me that the tape was jammed in the machine.

  20   And the machine was right behind this, just to the left of the

  21   front door as you come in, a little station there.  There was

  22   a --

  23   Q.  So when you saw him again after he went in the back, the

  24   tape was jammed in the front machine?

  25   A.  That's correct.


   1   Q.  And did there come a time the tape was removed from that

   2   machine?

   3   A.  Yes.

   4   Q.  And what happened after that?

   5   A.  I took that tape and brought it back across the street to

   6   view it and brought it to our audio lab.

   7   Q.  And did you view it at that time?

   8   A.  Yes, I did.

   9   Q.  And could you tell us generally what you recollect was on

  10   it?

  11   A.  It did show the cell areas, however, I believe it went up

  12   to November 1st, but it didn't go up to the date -- it was

  13   around 1:00 or so that it went up to in the morning and it did

  14   not show anything past that.

  15   Q.  I'll approach and show you what has been marked for

  16   identification as Government Exhibit 4118.  Do you recognize

  17   that exhibit, Agent Stone?

  18   A.  Yes, this is the tape.

  19            MR. GARCIA:  Your Honor, at this time the government

  20   offers 4118.

  21            THE COURT:  Received.

  22            (Government Exhibit 4118 received in evidence)

  23            MR. GARCIA:  I have nothing further.


  25   BY MR. STERN:


   1   Q.  Agent, am I correct in thinking that there were two

   2   separate trips made to MCC on November 1st to pick up tapes?

   3   A.  That's correct.

   4   Q.  Is there an agent Baptist or Baptiste who works for you?

   5   A.  Yes.

   6   Q.  And the first trip, was he the person who went and

   7   actually physically picked up the tape?

   8   A.  I don't -- he was the one that was assigned to get the

   9   tape, that's correct.  Whether he physically picked it up or

  10   not, I don't know.

  11   Q.  Okay.  But before he went, did someone call the MCC and

  12   speak with someone there to tell them what it was you wanted?

  13   A.  No.  We responded as a result of an incident at MCC.

  14   Q.  Without talking to anyone first?

  15   A.  Without talking to anybody.

  16   Q.  So Agent Baptiste or someone went and picked up a tape and

  17   brought it back to the offices of your organization, right?

  18   A.  We responded to the incident and then we all were given

  19   assignments and we started to conduct investigation, and he

  20   was assigned to get that tape.  He was told that Robert

  21   Perrish would be able to provide that tape to him, and he went

  22   off with Robert Perrish to get the tape.

  23   Q.  That tape was then brought back to your offices, correct?

  24   A.  He then said he had the tape, and he was told to go back

  25   to the office, bring it back to the office and have it


   1   duplicated and to view it.

   2   Q.  And eventually you got a call from him, right?

   3   A.  That's correct.

   4   Q.  And he said this tape does not show what we want?

   5   A.  He said it doesn't appear to show the cell areas in which

   6   we are investigating.

   7   Q.  Were you still at MCC at that time?

   8   A.  I was still at MCC.

   9   Q.  So you decided that you would try and get another tape

  10   that might show what it was you wanted, correct?

  11   A.  I told had him, I'll come over and take a look at it and

  12   see for sure, because the cell area we were investigating I

  13   felt I was familiar with at that point.

  14            So I went back across the street to see what he was

  15   talking about, and in viewing the tape it appeared that it was

  16   not the area.  So at that point then I called back across the

  17   street and told them that, you know, this was not the tape and

  18   that we would be coming back.

  19   Q.  Who did you speak to --

  20            I'm sorry.

  21   A.  And we would be coming back and get the tape.

  22   Q.  And who did you speak to when you called?

  23   A.  I believe I spoke to Anthony Nelson.

  24   Q.  Did you ever speak to Mr. Perrish about it?

  25   A.  No, not at that -- not telephonically.  It wasn't until I


   1   got to MCC again that I then advised Mr. Perrish that we need

   2   the other tape or the tape that shows the cell areas.

   3   Q.  Let's go back for a minute when you talked to Mr. Nelson.

   4   Did he tell you we don't have any such tape?

   5   A.  Anthony Nelson?

   6   Q.  Yes.

   7   A.  No, he had said that Mr. Perrish would have that tape, to

   8   contact him again and get the tape.

   9   Q.  And so I take it he also didn't say to you that the system

  10   wasn't working, right?

  11   A.  No.

  12   Q.  So you went back over and you came with Mr. Perrish, and

  13   you said there must be another tape, we need that tape, right?

  14   A.  I said the other tape did not show the cell areas, it

  15   showed some hallways and a front door.  He said, oh, that must

  16   be, it must be another tape.  And I said, okay, well, we need

  17   the tape of this cell area.  He said, oh, okay, I'll get it.

  18   Q.  And so Mr. Perrish didn't say to you we don't have any

  19   such tape, right?

  20   A.  No.

  21   Q.  And he then gave you another tape that you then went back

  22   to view, right?

  23   A.  That's correct.

  24   Q.  And when you viewed that tape, it did show the areas you

  25   were interested in, did it not?


   1   A.  It did.

   2   Q.  But it didn't show them at the right time, correct?

   3   A.  That's correct.

   4   Q.  The tape you viewed started on October 31st, right?

   5   A.  Correct.

   6   Q.  And was actually taking pictures of what was going on on

   7   10 South of MCC on October 31st, right?

   8   A.  That's correct.

   9   Q.  It continued through the very early morning of November

  10   1st, right?

  11   A.  That's correct.

  12   Q.  And it was actually taking pictures of what was going on

  13   on 10 South on November 1st?

  14            MR. GARCIA:  Objection.  Asked and answered.

  15   Q.  Correct?

  16            THE COURT:  I think the objection was to

  17   repetitiousness, which is a valid objection.  So let's move

  18   on.

  19   BY MR. STERN:

  20   Q.  And at some point you realize this tape also doesn't show

  21   what we need, right?

  22   A.  It didn't show the time that we were investigating, that's

  23   correct.

  24   Q.  So did you call again to MCC and say this also isn't the

  25   right tape, do you have another tape?


   1   A.  Yes, I did.

   2   Q.  And who did you speak to when you called that time?

   3   A.  I believe it was Anthony Nelson again.

   4   Q.  And that time what were you told?

   5   A.  I was told that he would talk to Robert Perrish and find

   6   out what the story is with the tape, where is the tape?

   7   Q.  Were you ever told what the story was with that tape?

   8   A.  I went back over to MCC again.

   9   Q.  That same day?

  10   A.  Right.  Went back up to MCC and I spoke with Robert

  11   Perrish and other people there as far as where the tape was.

  12   Q.  And the answer was?

  13   A.  They said they gave us all the tapes that they had.

  14            MR. STERN:  I have nothing else.  Thank you.

  15            MR. GARCIA:  Just one thing.


  17   BY MR. GARCIA:

  18   Q.  You mentioned a few times in your cross-examination

  19   Anthony, a gentleman named Anthony Nelson?

  20   A.  Correct.

  21   Q.  Does he work for FBI?

  22   A.  Yes, he's a supervisor special agent for the FBI.

  23   Q.  So he doesn't work for the Bureau of Prisons?

  24   A.  No, he does not.

  25            MR. GARCIA:  Thank you.


   1            THE COURT:  Thank you, Agent.  You may step down.

   2            (Witness excused)

   3            THE COURT:  The government may call its next witness.

   4            MR. GARCIA:  The government calls Leonard Hatton.


   6        called as a witness by the government,

   7        having been duly sworn, testified as follows:


   9   BY MR. GARCIA:

  10   Q.  Agent Hatton, you work for the FBI?

  11   A.  That's correct, sir.

  12   Q.  And how long have you been with the Bureau?

  13   A.  Been employed with the Federal Bureau of Investigation for

  14   approximately 15 years.  I've been with the Joint Bank Robbery

  15   Task Force, my current unit, since 1991.

  16   Q.  And were you working on November 1st, 2000?

  17   A.  I was, sir.

  18   Q.  Did there come a time that day that you were called upon

  19   to process a crime scene at the 10 South Unit of the

  20   Metropolitan Correctional Center?

  21   A.  Yes, sir.

  22   Q.  Approximately how many crime scenes have you processed in

  23   your career?

  24   A.  Crime scenes, processing of the evidence from crime

  25   scenes, probably upwards of about a thousand.


   1   Q.  And about what time did you arrive at the MCC?

   2   A.  We got notified at about 11:55.  We got over there

   3   approximately 12:20.

   4   Q.  And what did you do after you arrived on the 10 South

   5   floor?

   6   A.  We met with some individuals from the Bureau of Prisons

   7   and some of our supervisory staff, and they briefed us on what

   8   they had there and they asked us to give them a hand.

   9   Q.  And when you arrived, did the crime scene appear secured?

  10   A.  Yes, sir, it was.

  11   Q.  And what was your role to be at the crime scene?

  12   A.  I was selected to be the leader and to put together a

  13   group of people and to process that crime scene.

  14   Q.  And as part of that processing, did you take photographs?

  15   A.  I did, sir.

  16   Q.  And did you also collect samples of various substances

  17   that you found there?

  18   A.  We did.

  19   Q.  Before we go in detail through your processing of the

  20   crime scene, could you just give us a brief overview of how

  21   you proceeded?

  22   A.  Yes, sir.  Upon arriving there and after being briefed, I

  23   did a walk-through with another agent by the name of Peter

  24   Kohn.  The tenth floor is basically set up in a horseshoe-type

  25   shape.  We originally walked through the crime scene to find


   1   out what we had.

   2            Upon walking through the crime scene, I came on back

   3   and gave a total of four agents, myself, assignments of what

   4   we were going to go and do.  We then proceeded into the crime

   5   scene.

   6            We took our photographs, initial photographs, came on

   7   back, started picking up the evidence in order, and then later

   8   on we took our swabbings.

   9   Q.  You took swabbings, that would be of the substances?

  10   A.  Yes, that's correct.

  11   Q.  Later that evening did you also execute a search warrant

  12   inside Cell 6?

  13   A.  Yes, sir.  At about 7:08, 7:05 p.m. that evening we got a

  14   search warrant and we collected a lot of documents from Cell

  15   6.

  16   Q.  Agent, you said you took a number of photographs of the

  17   crime scene, correct?

  18   A.  Yes, sir.  We took about maybe about 114, 104 photographs.

  19   Q.  And prior to coming to court, did you have an opportunity

  20   to review various photographs -- and I'll read the Government

  21   Exhibits into the record, 4003 to -06, -07, 4007A, 4008 to

  22   4021, 4022A, -22B, -22C, 4023, 4024, 4025, 4027, -28, -29,

  23   4032, -33, -34, -35, -36, -37, -38 and -39 -- did you have a

  24   chance to view those photographs?

  25   A.  Yes, sir.


   1   Q.  And are those fair and accurate copies of the photos you

   2   took that day when you processed the crime scene?

   3   A.  They were, sir.

   4            MR. GARCIA:  And I believe two of those have already

   5   been offered into evidence and received, 4003, 4005, and the

   6   government at this time would offer the rest of the numbers

   7   that I read out, your Honor.

   8            MR. RUHNKE:  Without objection.

   9            THE COURT:  Received.

  10            (Government Exhibits 4003 to 4006, 4007, 4007A, 4008

  11   to 4021, 4022A, 4022B, 4022C, 4023, 4024, 4025, 4027, 4028,

  12   4029, 4032, 4033, 4034, 4035, 4036, 4037, 4038 and 4039

  13   received in evidence)

  14            MR. GARCIA:  If we could put up 4003 first.

  15   Q.  Is this one of the photos you took that day?

  16   A.  Yes, sir, that's correct.

  17   Q.  What are we seeing here?

  18   A.  Basically a photograph as you enter the 10 South area.

  19   There is only one door coming in.  As you step through the

  20   door, this is what you would go and see directly ahead of you.

  21   Q.  And if you go to 4004.

  22            MR. RUHNKE:  Your Honor, could I just have a moment

  23   of voir dire on 4003?

  24            THE COURT:  Yes.

  25   VOIR DIRE


   1   BY MR. RUHNKE:

   2   Q.  Back to 4003.

   3   A.  Yes, sir.

   4   Q.  Agent, that box that's in the foreground of 4003, what is

   5   that?

   6   A.  That's a government exhibit sticker, sir.

   7   Q.  Not the government exhibit sticker.  The box that's in the

   8   photograph, the wooden box.

   9   A.  Oh, the wooden box.  Sorry, sir.  That was a box that the

  10   people from the BOP, Bureau of Prisons, brought in.  That was

  11   their evidence stuff that they had in there.

  12   Q.  It was their crime scene equipment, is that correct?

  13   A.  I would say so.  Yes, sir.

  14            MR. RUHNKE:  Thank you.  Nothing else, your Honor.

  15   DIRECT EXAMINATION (continued)

  16   BY MR. GARCIA:

  17   Q.  If we could have 4004.

  18            Could you tell us, Agent Hatton, what the view we are

  19   seeing here is?

  20   A.  Yes, sir.  As you walk on in, if you were to walk on in

  21   and turn to your left and look in a westerly direction, this

  22   is going down towards Cell No. 1.

  23            MR. GARCIA:  And is it possible to do a split screen,

  24   with the diagram.

  25   Q.  So, Agent Hatton, if we are looking again at the diagram


   1   4000 on the top, could you just indicate to us the area that

   2   this photograph displays?

   3   A.  As you would walk right on in, it would be walking down

   4   this way right here.  The photograph is the hallway.

   5   Q.  So towards Cell 1?

   6   A.  Going down towards Cell 1, yes, sir.

   7   Q.  And now it's a little bit smaller, but the item in the

   8   left-hand center of Government Exhibit 4004, do you remember

   9   what that was?

  10   A.  Yes, sir.  That was a pair of gray sweat pants.

  11   Q.  I'll show you Government Exhibit 4058.  Did you have a

  12   chance to examine that prior to coming to court, Agent?

  13   A.  Yes, sir, I did.

  14   Q.  Are those the sweat pants that you recovered from the

  15   hallway here?

  16   A.  That's correct, sir.

  17            MR. GARCIA:  At this time, your Honor, the government

  18   offers 4058.

  19            MR. RUHNKE:  Without objection.

  20            THE COURT:  Received.

  21            (Government Exhibit 4058 received in evidence)

  22   BY MR. GARCIA:

  23   Q.  By the way, Agent, there are some markings on the sweats

  24   here, some circles and some numbers, those weren't on them

  25   when you collected them?


   1   A.  No, sir.  That got put on by lab personnel.

   2   Q.  If we could go to 4005.

   3            What is the view we are seeing here on the bottom?

   4   A.  This is as you come in through the main entrance and you

   5   are turning off to your right, and this is a photograph where

   6   you are going to see where the inmate visiting room is,

   7   looking down the hallway.  It was taken right about there

   8   going down --

   9   Q.  By Cell 2, Cell 3?

  10   A.  Yes, sir, that's right.  Cell 2 and Cell 3 are on your

  11   right-hand side.

  12   Q.  If we could go to 4006, and could you again show us on the

  13   diagram where this hallway is?

  14   A.  Yes.  This is going to be right across from where it says

  15   "office" on the wall there.

  16   Q.  So the lower middle of that diagram?

  17   A.  Yes, sir.

  18   Q.  And if we could go to 4007, and if you could first show us

  19   where on the diagram what view we are seeing here?

  20   A.  Sir, this is a -- well, there's a ripped shirt you can see

  21   in the lower right-hand corner.  This is going to be in the

  22   vicinity of Cell 4, 4 and 5.

  23   Q.  The area of Cell 4, Cell 5, lower right?

  24   A.  Yes, sir.

  25   Q.  And you mentioned that that was a ripped shirt?


   1   A.  That's correct, sir.

   2   Q.  I am going to approach and show you Government Exhibit

   3   4078.  And again, did you have a chance prior to coming to

   4   court to review that evidence?

   5   A.  Yes, sir, I did.

   6   Q.  Is that the ripped t-shirt that we're seeing in that

   7   photo, 4007?

   8   A.  That's correct.

   9   Q.  And again, other than any cuttings or marks that were done

  10   by the lab, is that in substantially the same condition it was

  11   when you picked it up?

  12   A.  That's correct.

  13            MR. GARCIA:  We offer Government Exhibit 4078.

  14            THE COURT:  Received.

  15            (Government Exhibit 4078 received in evidence)

  16   BY MR. GARCIA:

  17   Q.  If we could go to 4008, photograph.

  18            Again, Agent, first, if you could tell us what is

  19   there and where it is.

  20   A.  It's basically as you are going down around the corner,

  21   and what it is was a shirt and sweat pants and I believe it

  22   was a pair of underpants underneath.

  23   Q.  If you could again indicate for us on the diagram

  24   approximately where that was.

  25   A.  Yes.  I believe it's going to be like right outside of


   1   Cell No. 5 in the hallway, right about there.

   2   Q.  That corner between Cell 5 and what's marked "recreation"

   3   on the diagram?

   4   A.  Yes, sir.

   5   Q.  And if I could approach with Government Exhibits 4075,

   6   4079 and 4064.  And again, Agent, prior to coming to court did

   7   you have a chance to look at those items?

   8   A.  Yes, sir, I did.

   9   Q.  And starting with 4075, what is that?

  10   A.  This was the gray sweat pants as you see in Government

  11   Exhibit 4008.

  12   Q.  And 4079?

  13   A.  It's the brown underpants.

  14   Q.  And 4064?

  15   A.  4064, if you look in Government Exhibit 4008, it's going

  16   to be in the bottom right-hand corner.  You just barely see

  17   it.

  18   Q.  And it's indicated on the bottom right, as you said, on

  19   the edge of that photograph.

  20            MR. GARCIA:  Your Honor, at this time the government

  21   would offer 4064, 4075 and 4079.

  22            MR. RUHNKE:  No objection.

  23            THE COURT:  Received.

  24            (Government Exhibits 4064, 4075 and 4079 received in

  25   evidence)


   1            MR. GARCIA:  If we could have Government Exhibit

   2   4009.

   3   Q.  If you again could show us where the view we are seeing

   4   here on the diagram?

   5   A.  Yes, sir.  It's going to be approximately right over here

   6   where the lieutenant's office is.  That's going to be the

   7   opening doorway on the left-hand corner of the photograph,

   8   approximately right about there.

   9   Q.  The doorway to the lieutenant's office where the arrow is

  10   pointing right now?

  11   A.  I don't see an arrow, but, yes, the lieutenant's office is

  12   off to the left.

  13            MR. GARCIA:  And 4010.  If we could have the diagram

  14   on the bottom.  Thanks.

  15   A.  Yes, sir.

  16   Q.  And again, Agent, what are we seeing here?

  17   A.  This is basically a photograph which was taken right about

  18   where it says "lab library," shooting down towards the

  19   direction of Cell No. 6, with Cell No. 6 being off to the

  20   left-hand side.

  21   Q.  And 4011, what is that?

  22   A.  That's basically the same photograph, but it's taken about

  23   five feet closer than the last one.  The camera again is

  24   taking a picture of the hallway outside of Cell No. 6.

  25   Q.  And 4012?


   1   A.  Again, this is a closer-up of the last two photographs.

   2   It is the hallway directly across from the exterior side of

   3   Cell No. 6.

   4   Q.  I'm going to bring up for you 4092 and 4093, and while I

   5   do that I will take some of this.

   6            Do you recognize that?

   7   A.  Yes, sir, I do.

   8   Q.  What do you have there, what is 4092 and 4093?

   9   A.  Government Exhibit 4093 is the upper portion of a Motorola

  10   MT1000 radio, and the bottom portion is the battery component

  11   for that radio.

  12   Q.  Are those the items we are seeing -- well, the top part of

  13   the radio in 4012?

  14   A.  Yes, sir.  You can see the top part of the radio in about

  15   the center span of Government Exhibit 4012.  Government

  16   Exhibit 4092, you can't actually see it in this photograph,

  17   but that stand that is located right in the center, that's a

  18   portable telephone.  The battery was located underneath that

  19   stand.

  20            MR. GARCIA:  At this time, your Honor, the government

  21   offers 4029 and -93.

  22            MR. RUHNKE:  No objection.

  23            THE COURT:  Received.

  24            (Government Exhibits 4029 and 4093 received in

  25   evidence)


   1            MR. GARCIA:  And if we could put up 4025.

   2   Q.  Where is that photograph taken?

   3   A.  Again, this is going to be in the hallway across from Cell

   4   No. 6.  This is going to be that bloody sock and that sneaker

   5   is located where it says "electrical."  It's right there in

   6   the corner where that door is.

   7   Q.  I'm going to show you 4063 and ask you if you recognize

   8   that.

   9   A.  Yes, sir, I do.  This is the item that's depicted in

  10   Government Exhibit 4025.

  11            MR. GARCIA:  And the government offers 4062.

  12            MR. RUHNKE:  No objection.

  13            THE COURT:  Received.

  14            (Government Exhibit 4062 received in evidence)

  15   Q.  If we could go to 4029.  Could you describe where that

  16   photograph is taken?

  17   A.  Again, this is a close-up photograph in the hallway

  18   directly across from the door leading into Cell No. 6.

  19   Q.  I'm going to show you what has been marked 4042, and could

  20   you tell us what that item is in your hand, 4042?

  21   A.  Yes, sir.  This is a part of a comb that we had found

  22   across from Cell No. 6's door in the hallway.

  23   Q.  And that's the item depicted in photograph 4029?

  24   A.  That's correct, sir.

  25            MR. GARCIA:  Your Honor, the government offers 4042.


   1            THE COURT:  Received.

   2            (Government Exhibit 4042 received in evidence)

   3   BY MR. GARCIA:

   4   Q.  Agent, if you could, with the gloves, take that item out

   5   of the envelope and hold it up for us.

   6   A.  (Witness complies)

   7            MR. GARCIA:  Your Honor, I don't ask to pass it, but

   8   if I could just hold it by the jury.

   9            THE COURT:  Yes.

  10   Q.  Thank you, Agent.  If you could just return that to the

  11   plastic bag.

  12            MR. GARCIA:  If we could put up on the screen 4013.

  13   Q.  What are we seeing here?

  14   A.  This is a shot of the outer portion door of Cell No. 6.

  15   The door right now is open, so what you are looking at is the

  16   interior part of Cell 6's door.

  17   Q.  Now, 4014, what are we seeing here, Agent?

  18   A.  This is a photograph of two honey bear containers that

  19   were located against the wall in the hallway of Cell 6 behind

  20   the door.

  21   Q.  So we're clear, this is outside the cell?

  22   A.  That is correct.

  23   Q.  And I'm going to show you Government Exhibit 4044.  Again,

  24   did you have a chance to look at those items before you came

  25   to court today?


   1   A.  Yes, sir, I did.

   2   Q.  Are those the two honey bear bottles that we are seeing in

   3   Government Exhibit 4012?

   4   A.  That's correct, sir.

   5            MR. GARCIA:  Your Honor, we offer 4044.

   6            THE COURT:  Received.

   7            (Government Exhibit 4044 received in evidence)

   8            MR. GARCIA:  If we could take the diagram and that

   9   photo off and put up Government Exhibit 4015.

  10   Q.  Could you tell us what we're seeing here?

  11   A.  Yes, sir.  This is an interior shot of Cell No. 6, with

  12   the camera actually being out in the hallway going into the

  13   cell.

  14   Q.  Agent, during the course of your processing the crime

  15   scene, did you label -- well, withdrawn.

  16            You see two beds in that room?

  17   A.  Yes, sir.

  18   Q.  Could you describe where they are located for us?

  19   A.  Yes.  The first bed we labeled for our investigation as

  20   bed number 1.  This is going to be the first bed that you see

  21   alongside of the window.

  22   Q.  To the right as you are coming in?

  23   A.  Yes, sir, that's correct.  The bed at the far wall at the

  24   end of the cell, we labeled that as bed number 2.

  25   Q.  And if we could go to Government Exhibit -- wait for one


   1   moment.

   2            On the floor here in the front there are some white

   3   items, which we'll look at closer, I believe, later.  Could

   4   you tell us generally what they are?

   5   A.  Yes, sir.  They are pieces of cotton material believed to

   6   be from sheets that were ripped into strips.

   7   Q.  If we could see 4017.

   8            Agent, generally, could you describe what we are

   9   seeing?

  10   A.  Yes.  This is basically a closer-up of the last government

  11   exhibit going into the cell, basically of all the items on the

  12   floor.

  13   Q.  I'm going to show you what has been marked 4043.  Those

  14   items, do you recognize them?

  15   A.  Yes, sir.

  16   Q.  And what are they?

  17   A.  Again, these are two of those honey bear containers.

  18   Q.  And so we are clear, those aren't shown in the photograph,

  19   correct?

  20   A.  No, sir.  These were actually obtained, you see where the

  21   toilet is, they were actually behind the toilet area between

  22   the toilet and the chair in the back of the toilet area.

  23   Q.  I'm going to approach with 4087.  I won't ask you to take

  24   this out of the bag, but if you could just tell us if you have

  25   seen that, examined that item prior to coming to court?


   1   A.  Yes, sir.

   2   Q.  And what is that?

   3   A.  If you look at Government Exhibit 4017, this is the orange

   4   jumpsuit that you see in front of the commode, laying there on

   5   the floor.

   6            MR. GARCIA:  Your Honor, at this time we offer 4043,

   7   the honey bear bottles, and 4087, the jumpsuit.

   8            MR. RUHNKE:  No objection.

   9            THE COURT:  Received.

  10            (Government Exhibits 4043 and 4087 received in

  11   evidence)

  12   BY MR. GARCIA:

  13   Q.  And if we could go to 4034, where is this view?

  14   A.  Again, this is going to be in the cell, Cell No. 6.  If

  15   you look in the bottom left-hand corner, you can see the lip

  16   of the commode or the toilet right there, and that is a, it's

  17   a prayer rug between the commode and a chair that was bolted

  18   down to the floor.

  19   Q.  If we could go to 4018, is that the area shown that you

  20   were just speaking about?

  21   A.  Yes, sir, that's correct.

  22   Q.  Again, these items center, lower center of the photograph,

  23   white and orange, what were they?

  24   A.  White and orange?

  25   Q.  Yes.


   1   A.  The orange pieces of material appear to have been like

   2   cuffs or sleeves that were possibly pulled off an orange-type

   3   jumpsuit, and the white garments in there are clothing.

   4   Q.  The item of furniture on the left-hand wall past the

   5   chair, what is that?

   6   A.  I'm sorry, sir?  The items of --

   7   Q.  On the left-hand wall past the chair that you described

   8   earlier, was that part of the wall?  In fact, is that a desk?

   9   A.  Yes, sir.  It's a concrete desk and chair that are not

  10   movable.  They are permanent items there in the cell.

  11   Q.  During the course of your examination of the crime scene,

  12   did you look underneath the desk?

  13   A.  I did, sir.

  14   Q.  And if we could have Government Exhibit 4039, could you

  15   tell us what that is?

  16   A.  Yes, sir.  Underneath the desk itself were scrape marks

  17   that appeared to be black and white in color.  It was

  18   underneath the portion of the desk that wasn't painted.

  19   Q.  As you looked at those marks underneath the desk, what

  20   direction were they going in?

  21   A.  Basically back and forth, so it would be going from the

  22   interior of the cell towards the cell wall.

  23   Q.  So from the front of the desk to the wall?

  24   A.  That's correct.

  25   Q.  And I would like to show you Government Exhibits 4080


   1   through 4086.  Have you had a chance to look at those before

   2   coming to court today?

   3   A.  I did, sir.

   4   Q.  Are those the orange and white strips that you described

   5   for us earlier in the cell?

   6   A.  Yes, sir.

   7            MR. GARCIA:  Your Honor, at this time we would offer

   8   Government Exhibits 4080 through 4086.

   9            THE COURT:  Received.

  10            (Government Exhibits 4080 through 4086 received in

  11   evidence)

  12   BY MR. STERN:

  13   Q.  If you would, using the gloves, Agent, could you just hold

  14   up 4082 for us and display it.

  15   A.  (Witness complies)

  16   Q.  Again, those markings weren't on it when you found it; is

  17   that correct?

  18   A.  That's correct.

  19            THE COURT:  The black markings and circles and so on,

  20   those were all added?

  21            THE WITNESS:  Yes, sir.  They were added by the lab

  22   personnel when they had done their presumptive tests.

  23   BY MR. GARCIA:

  24   Q.  The other marks, the stains, those were on it when you

  25   found it?


   1   A.  That's correct.

   2            THE COURT:  All right.  Is this a good place to

   3   break?

   4            MR. GARCIA:  Yes, your Honor.

   5            THE COURT:  We'll take our midmorning recess at this

   6   point.

   7            We'll take a five-minute recess.

   8            (Recess)

   9            (Jury not present)

  10            MR. RUHNKE:  Your Honor at 1:00 we would just like to

  11   see you on some minor housekeeping-type matters.

  12            (Jury enters)

  13    LEONARD HATTON, resumes

  14            THE COURT:  You may proceed.

  15            MR. GARCIA:  Thank you, Judge.

  16   BY MR. GARCIA:

  17   Q.  Agent, I'm showing you Government Exhibit 4090.  Could you

  18   just generally describe for us what that is?

  19   A.  Yes.  This is a plastic wrap, like Saran Wrap, rolled into

  20   a twine.

  21   Q.  And did you find the items in that Government Exhibit 4090

  22   inside Cell 6?

  23   A.  Yes, sir.  They were found on the floor alongside of the

  24   center of the cell and over by the leg of the bed number 1.

  25   Q.  Over by bed number 1?


   1   A.  Yes.

   2            THE COURT:  Would you hold them up?

   3            THE WITNESS:  Yes, your Honor.

   4   Q.  Actually, Agent, using the glove, maybe take them out so

   5   we can get a look at them outside the bag.

   6   A.  (Witness complies)

   7   Q.  Thank you.

   8            If we could have displayed Government Exhibit 4019,

   9   the photograph.  What are we seeing here, Agent?

  10   A.  It's an identification badge over in the right-hand corner

  11   from the Bureau of Prisons belonging to Mr. Pepe, and a set of

  12   keys located right in the center of the photograph, Government

  13   Exhibit 4019, right by the blue container.

  14   Q.  So we're clear, this is inside Cell 6?

  15   A.  That's correct, inside Cell 6 on the right-hand side as

  16   you walk in through the door.

  17   Q.  And the Bureau of Prisons identification to the upper

  18   right, if we can enlarge that a little bit, and you said that

  19   name on that plate?

  20   A.  L. P-E-P-E.  L. Pepe.

  21   Q.  If we can go back to the photograph.  I'm going to show

  22   you Government Exhibit 4048 and ask you if you recognize that.

  23   A.  Yes, sir.  These are a set of keys that are displayed in

  24   the Government Exhibit 4019 in the center of the photograph.

  25            MR. GARCIA:  The government offers 4048.


   1            MR. RUHNKE:  No objection.

   2            THE COURT:  Yes, received.

   3            (Government Exhibit 4048 received in evidence)

   4   Q.  Agent, if you look at Government Exhibit 4048, are there

   5   small round metal circles on that chain?

   6   A.  That's correct, sir.

   7   Q.  And is there a name printed on those metal circles?

   8   A.  Yes, sir.

   9   Q.  And what is that?

  10   A.  L, and the last name of P-E-P-E.

  11            MR. GARCIA:  If we could display a photograph -- I'm

  12   sorry.  I offer Government Exhibit 4090, if I failed to do

  13   that.

  14            THE COURT:  Yes, received.

  15            (Government Exhibit 4090 received in evidence)

  16            MR. GARCIA:  If we could have 4311 scanned in.

  17   Q.  What is that, Agent Hatton?

  18   A.  This is a, again, another photograph on the interior of

  19   Cell No. 6.  This photograph is taken of our -- actually there

  20   was a chair, a fiberglass or plastic chair and a concrete

  21   block, a cinder block table.  These are the condiments and

  22   that was located between the chair and the concrete table.

  23            MR. GARCIA:  Is it possible to enlarge just the area

  24   showing the food items?

  25   Q.  Agent, I'm going to approach you with what has been marked


   1   as Government Exhibit 4314, and could you tell us generally

   2   what is 4314?

   3   A.  Yes.  If you look in the photograph it's going to be the

   4   red bottle which is probably, it's right about at 9:00 in the

   5   photograph.  It's like a hot sauce.

   6            MR. GARCIA:  And the government would offer that

   7   exhibit.

   8            MR. RUHNKE:  No objection.

   9            THE COURT:  Received.

  10            (Government Exhibit 4314 received in evidence)

  11   BY MR. GARCIA:

  12   Q.  And is there a name, if you can read it, on the bag on

  13   that hot sauce, the type?

  14   A.  Yes, it's Keefe's from Louisiana hot sauce.

  15   Q.  Thank you.

  16            (Continued on next page)











   1   Q.  Thank you.  If we could have Government's Exhibit 4020,

   2   what do we see here?

   3   A.  Again, this is a photograph in the interior of cell 6.  It

   4   is the photograph of a bed that was nearest the window.  This

   5   is the bed that we, for investigative purposes, labeled bed

   6   number 1.

   7   Q.  I am going to hand you Government's Exhibit 4091.  Do you

   8   recognize those items?

   9   A.  Yes, sir.  This is the glasses and the glass case that we

  10   had picked up off of bed number 1.

  11            MR. GARCIA:  The government offers Exhibit 4091.

  12            MR. RUHNKE:  No objection.

  13            THE COURT:  Received.

  14            (Government Exhibit 4091 received in evidence)

  15   Q.  If we could go to Government's Exhibit 4035.

  16            First, Agent, what is it that we are seeing here?

  17   A.  Again, it is the plastic saran-wrap-type material that was

  18   rolled up into a string-like device.

  19   Q.  What is the area that is depicted there?

  20   A.  This is a photograph taken on bed number 1.

  21   Q.  The bed we were looking at in the prior photograph?

  22   A.  That is correct.

  23   Q.  When you walked in to process the scene, could you see the

  24   rope that you described on the bed?

  25   A.  No, sir.


   1   Q.  Why not?

   2   A.  There was a garment on top of it and a prayer rug below

   3   it.

   4   Q.  I am going to show you Government's Exhibit 4089.  Do you

   5   recognize 4089?

   6   A.  Yes, I do.

   7   Q.  What is that?

   8   A.  This is the item displayed in Government's Exhibit 4035,

   9   plastic rope.

  10            MR. GARCIA:  The government offers 4089.

  11   Q.  If you would, Agent, hold a piece of that up for us.

  12   Thank you.

  13            THE COURT:  Is that offered?

  14            MR. GARCIA:  Yes.

  15            MR. RUHNKE:  No objection.

  16            THE COURT:  Received.

  17            (Government Exhibit 4089 received in evidence)

  18            MR. GARCIA:  Your Honor, in addition to that exhibit,

  19   if we could offer 4311, the photograph that I displayed of the

  20   condiment.  I am not sure if it was offered.  I believe it was

  21   not offered.

  22            THE COURT:  Received.

  23            (Government Exhibit 4311 received in evidence)

  24   Q.  If we could display 4036.  What is the area we are seeing

  25   here?


   1   A.  Again, for investigative purposes this is bed number 2.

   2   This is the concrete wall between bed number 2 and the back of

   3   cell number 6.

   4   Q.  So the far wall of the cell as you walk in?

   5   A.  That is correct.

   6   Q.  I am going to show you Government's Exhibit 4094.  Do you

   7   recognize that item?

   8   A.  Yes, sir, I do.

   9   Q.  What is that?

  10   A.  This is the comb that we obtained, Government's Exhibit

  11   4036, in the center of the photograph.

  12            MR. GARCIA:  I will offer 4094.

  13   Q.  I will show you what is already in evidence as

  14   Government's Exhibit 4092.  Would you hold up 4094 and 4092

  15   for us.

  16            Do those appear to originally have been the same type

  17   of item?

  18   A.  Yes, sir.

  19   Q.  Agent, in your search of cell number 6 and your processing

  20   of the crime scene, how many brushes like the one you see in

  21   the photograph 4036 did you find, other than the sharp one?

  22   A.  We just found two brushes, the one shown in Government's

  23   Exhibit 4036 and the one that was found outside of cell number

  24   6 floor, which is Government's Exhibit 4042.

  25   Q.  If we could now see Government's Exhibit 4022A.


   1            THE COURT:  I am not sure -- 4094 is?

   2            THE WITNESS:  Your Honor, it is the brush that was

   3   found --

   4            THE COURT:  Is the brush.  And the other one is?

   5            MR. GARCIA:  4042.

   6            THE COURT:  And they are both received.

   7            (Government Exhibits 4042 and 4094 received in

   8   evidence)

   9   Q.  Agent, can you tell us what we are seeing.

  10   A.  Government's Exhibit 4022A is a photograph of the camera

  11   located in the back of cell number 6, in the upper left-hand

  12   corner, directly above bed number 2.

  13   Q.  So as you walk in facing the cell, far left corner?

  14   A.  That is correct.

  15   Q.  Is this how it appeared to you when you first entered the

  16   cell?

  17   A.  That is correct.

  18   Q.  If we could see 4022B.  Is this a closeup of the same

  19   photo we just saw?

  20   A.  It is, sir.

  21   Q.  And 4022C, what is this?

  22   A.  It's the same photograph of the camera but when I went and

  23   did, there was some toilet paper you saw in the previous

  24   exhibits.  The toilet paper was removed, which was covering

  25   the lens.  We took another photograph of the camera without


   1   the toilet paper in the hole.

   2   Q.  If we could see 4023.  What do we see there?

   3   A.  Again, this is an interior shot of cell number 6, although

   4   it is a different camera angle.  This is the interior of cell

   5   6, with the camera angle lens pointing to the exit of cell 6's

   6   door.

   7   Q.  If we could, if it is possible to enlarge the area by the

   8   door.  I am going to show you Government's Exhibit 4045 and

   9   ask you if you recognize that?

  10   A.  Yes, sir.

  11   Q.  What is that of?

  12   A.  This is another one of those Busy Bee honey bottles.  You

  13   can see it right there in the left-hand corner of the cell, in

  14   the left-hand corner of the photograph right next to the

  15   plates of discarded food.

  16            MR. GARCIA:  The government offers 4045.

  17            MR. RUHNKE:  No objection.

  18            THE COURT:  Received.

  19            (Government Exhibit 4045 received in evidence)

  20   Q.  If we can now go to 4034.  Tell us the view that we are

  21   seeing here.

  22   A.  Again, this is of a camera angle with the camera being

  23   taken inside of cell number 6.  On the left-hand side of the

  24   photograph you can see the entrance or exit of cell number 6.

  25   In the center portion of the photograph is the shower stall in


   1   cell number 6.

   2   Q.  What about the item at the bottom of the shower stall?

   3   A.  That was a Department of Corrections bureau tie and tie

   4   classic.

   5   Q.  There appear to be some markings or stains on the shower?

   6   A.  Yes.

   7   Q.  Can you describe those.

   8   A.  Yes.  You see in the photograph on the stainless steel, on

   9   the bottom portion and in the interior of the cell and the

  10   outer side, it was the same consistency and smell that was

  11   found in some of those Honey Bear bottles.

  12   Q.  Can you describe the smell?

  13   A.  Yes.  It was like a peppery tobasco sauce type of smell.

  14   Q.  If we could see Government's Exhibit 4032.  Is that a

  15   closeup of the item you were just describing?

  16   A.  Yes, sir.  It is a better photograph.  You can see the

  17   contents, what appeared to be the same substance that was in

  18   those bottles, again, on the stainless steel and on the base

  19   of the shower floor.

  20   Q.  If we could see 4038.  What is this, Agent?

  21   A.  This is going to be the interior side of cell number 6's

  22   door.  We had two substances found in that door, and again, if

  23   you look at around 3:00 on that door, you can see some of the

  24   substance that appeared to be of the same consistency and

  25   smell as the items or the material that was found in the Honey


   1   Bear bottles.

   2   Q.  If we could enlarge the stain area on the door if that is

   3   possible.  Is that the area you are referring to, Agent?

   4   A.  That is correct.

   5   Q.  And 4027?  And if you could, actually, if you could put up

   6   Government's Exhibit 4000 with this one if that is possible,

   7   and if you could show us the area that you are looking at,

   8   that we are looking at.  If you would, Agent, show us where on

   9   Government's Exhibit 4000 the area depicted in Government's

  10   Exhibit 4027 would be.

  11   A.  If you look on the schematic, in the upper right-hand

  12   corner where it says the word electric, that's the door that

  13   you see in Government's Exhibit 4027.  That wall right there

  14   in the ceiling is the wall that is right outside the

  15   electrical door in the ceiling that you see in Government's

  16   Exhibit 4027.

  17   Q.  And again, the consistency and the smell of the material

  18   on that one?

  19   A.  Yes, sir.  It was the same as the consistency and smell of

  20   the material that was found in those Honey Bear bottle items.

  21   Q.  And the walls inside the cell?

  22   A.  Correct.

  23   Q.  Did you take a sample of the material on that wall, Agent?

  24   A.  Yes, I did.  I believe it was sample number 7.

  25   Q.  I show you what has been marked as Government's Exhibit


   1   4310.  Is that the sample you were referring to?

   2   A.  Yes, it is.

   3            MR. GARCIA:  Your Honor, the government offers 4310.

   4            MR. RUHNKE:  No objection.

   5            THE COURT:  Received.

   6            (Government Exhibit 4310 received in evidence)

   7   Q.  If we could now see Government's Exhibit 4028.  What is

   8   the view here, Agent?

   9   A.  This is with the camera being outside of cell number 6,

  10   pointing up above the door of cell number 6 and capturing part

  11   of the wall, exterior wall of cell 6 and the ceiling.

  12   Q.  Were there stains on this wall?

  13   A.  Yes, there were.

  14   Q.  Were those the same types of stains as on the opposite

  15   wall?

  16   A.  That is correct.

  17   Q.  If we could go to 4037.  What do we see here?

  18   A.  It is an electrical conduit box located outside in the

  19   hallway of cell number 6, on the ceiling.

  20   Q.  If we could have Government's Exhibit 4000 put back up,

  21   with this.  If you could just show us the general area on 4000

  22   the junction box, as best you recall?

  23   A.  If you look at the interior-exterior door of cell number

  24   6, if you go out probably 2 or 3 feet from that door and down

  25   about 4 feet, you can see the electrical box would be on the


   1   ceiling.  It would be there in that hallway.

   2   Q.  So in the area going by where it says telephone and lab

   3   area, in that area?

   4   A.  Yes, sir.  If you look at 4037, you get a better

   5   representation.  You can see where the door is for cell number

   6   6.

   7   Q.  In the lower left-hand corner of the photograph?

   8   A.  In the lower left-hand corner, yes, sir.

   9   Q.  You mentioned that you also seized documents during a cell

  10   search, is that correct?

  11   A.  Yes, sir, we did.

  12   Q.  Can you describe the procedure of taking those documents

  13   from the cell.

  14   A.  We perceived a number of documents in the cell.  Later on,

  15   we got a search warrant and we went into the cell and took out

  16   the documents that we found in the cell.  A large majority of

  17   the documents were already in containers or envelopes.  Those

  18   that weren't in containers or envelopes we placed into bags,

  19   and then we brought everything back to our office and it was

  20   turned over to the case people who were responsible for going

  21   through those items.

  22   Q.  Prior to coming to court, did you prepare an exhibit

  23   showing a number of the locations that you just testified

  24   about?

  25   A.  Yes.  I made up two exhibits, I believe.


   1   Q.  The one showing the location of the photographs,

   2   Government's Exhibit 4000P, is that this exhibit here?

   3   A.  That is correct.

   4   Q.  Does that fairly and accurately reflect the areas that the

   5   photographs were taken that are marked by exhibit number?

   6   A.  Yes, it does.

   7            MR. GARCIA:  Your Honor, at this time we would offer

   8   4000P.

   9            MR. RUHNKE:  No objection.

  10            THE COURT:  Received.

  11            (Government Exhibit 4000P received in evidence)

  12            MR. RUHNKE:  Your Honor, if we could see stand over

  13   here so we can see.

  14            THE COURT:  Yes.

  15            MR. GARCIA:  With the court's permission, if the

  16   agent could step down.

  17            THE COURT:  Yes.

  18   Q.  Agent, if you could just show us generally how this

  19   diagram and how the photographs correspond to this exhibit.

  20   A.  Government's Exhibit 4003 is a photograph as you walk into

  21   cell F1, basically shown right here.

  22            Government's Exhibit 4004, I was standing here when

  23   this photograph was taken as represented by the arrow,

  24   captioned down here.  This blood spilled on the floor is

  25   basically across from cell number 1.


   1            Government's Exhibit 4005 is basically a photograph

   2   that was taken in this area, capturing this corner right here,

   3   and showing the hallway going on down.

   4            These smear marks on the wall as shown in

   5   Government's Exhibit 4006 was basically taken here, going down

   6   in a northerly direction with these marks being located here

   7   on this wall.

   8            Government's Exhibit 4007, which was the brown shirt

   9   that we talked about earlier, and we have blood marks here on

  10   the floor, was basically taken right here.  This door right

  11   here represented in the diagram is actually this door right

  12   here, with the second door being this door.

  13            Government's Exhibit 4009 again is another photograph

  14   taken here in the hallway across from the lieutenant's office

  15   shown here in the diagram.  This is the office door right

  16   here.

  17            Going up here, Government's Exhibit 4022A is the

  18   camera that was located inside of cell number 6 directly above

  19   the bed that we labeled number 2, which was the bed on the far

  20   wall.

  21   Q.  That would be in this corner right here?

  22   A.  That is correct.

  23            Government's Exhibit 4023 is an interior shot of cell

  24   number 6 with the camera being here, taking a photograph going

  25   in this direction.  As you can see, the chair, you have the


   1   chair right here and the chair and table right here.

   2            Government's Exhibit 4020, this is for investigative

   3   purposes the bed that we said is bed number 1, showing you the

   4   glasses, the prayer rug, and underneath the prayer rug was the

   5   rope that we talked about before, or the plastic twine.

   6   Again, here is bed number 1, here is a window that was locked

   7   right here.

   8            Government's Exhibit 4018, again is an interior shot

   9   of cell number 6, capturing basically the chair right here

  10   with the camera actually pointed in other southerly direction,

  11   the camera angle going there way.

  12            The concrete table we spoke about earlier before

  13   inside of cell number 6, these strafe marks again which were

  14   black and white in color were found underneath this portion of

  15   the table with these scratch marks going back in a pattern,

  16   going from the inner portion of the cell, going back towards

  17   the wall, and there were similar marks going back and forth.

  18            Government's Exhibit 4024, again it is an interior

  19   shot of the cell, with the camera basically pointing, going in

  20   a little bit of a southerly direction -- I am sorry -- yes,

  21   southerly direction -- or northerly direction -- no, northerly

  22   direction.  It was taken right about from here, and again it

  23   captured the shower, that you can see.

  24            Government's Exhibit 4015, again it's another shot of

  25   the cell.  The camera was out in the hallway number 6,


   1   directly outside the door, with the shot going into cell

   2   number 6.

   3            Government's Exhibit 4011 is a shot in the hallway

   4   going down towards cell number 6, with cell number 6's door

   5   being off to the left-hand side, and if you could just see

   6   down here in the corner, that was two of those Honey Bear

   7   containers were located right here.  The comb that was filed

   8   down was located right there, and as you can see, the portion

   9   of the radio.

  10            In Government's Exhibit 4010, again it's just another

  11   shot taking taken back further, taken about 5 feet back

  12   further from the shot right here.

  13   Q.  Thank you, Agent.  Did you also prepare another exhibit

  14   using the schematic diagram that shows the location of certain

  15   of the exhibits that you recovered and items of clothing as

  16   well as blood samples that you took?

  17   A.  Yes, sir, we did.

  18   Q.  Is that this exhibit?

  19   A.  It is.

  20   Q.  Does that fairly and accurately represent the approximate

  21   areas of those items were recovered?

  22   A.  It does, sir.

  23            MR. GARCIA:  The government would offer Government's

  24   Exhibit 4000-E.

  25            MR. RUHNKE:  No objection.


   1            THE COURT:  Received.

   2            (Government Exhibit 4000-E received in evidence)

   3   Q.  First let's do the color code here.  Red dots represent?

   4   A.  Blood samples, or what I perceived to be blood located on

   5   the floors or walls.

   6   Q.  In several locations during the course of your search, did

   7   you take swabbings or samples of that material?

   8   A.  Yes, I did.  One thing I want to note, where I took these

   9   samples, there were other items that I believed were blood

  10   that we didn't take samples.

  11   Q.  You took 11 samples?

  12   A.  Yes, I believe 11.

  13   Q.  The green dots represent clothing?

  14   A.  That is correct.

  15   Q.  The blue dots again with the GX number on them represent

  16   other exhibits?

  17   A.  Yes, basically hard item type exhibits.

  18   Q.  Now the yellow dots, the dot here labeled sample 7, is

  19   that the sample you testified about earlier on this far wall?

  20   A.  Yes, sir, that had the same consistency, the materials had

  21   the same consistency and smell as the material that was

  22   located in some of those Honey Bear bottles.

  23   Q.  Again, the four other yellow dots that do not have a

  24   sample number in them, what do these represent?

  25   A.  Basically this one right here is representative of the


   1   stain that was found above cell 6 number door on the exterior

   2   side, on the hallway side.  These dots right here are

   3   representative of the material that was found in the honey

   4   bottles on the wall, on the shower stall, the shower floor,

   5   and the other side of the shower.

   6   Q.  Thank you.  Agent, I think when we were speaking and

   7   possibly describing the diagram, you mentioned a comb found in

   8   the hallway.  Is that a comb or brush that was found outside

   9   cell 6?

  10   A.  It used to be a brush.  Now it is basically more of a

  11   shank.

  12   Q.  That would be Government's Exhibit 4042 that you were

  13   referring to?

  14   A.  That is correct.  That is correct.

  15            MR. GARCIA:  I have nothing further, Judge.

  16            MR. RUHNKE:  Your Honor, I am wondering if I could

  17   get the physical items that were out displayed back on the

  18   table, returned back to the table.

  19            THE COURT:  Yes.

  20   Q.  Agent.


  22   BY MR. RUHNKE:

  23   Q.  Agent, you testified about finding some homemade

  24   string-like objects or rope-like material that to you appeared

  25   to have been made from rolled up saran wrap; is that correct?


   1   A.  That is correct, sir.

   2   Q.  Did you see examples anywhere in your search of 10 South

   3   that day of how those items might have been utilized?

   4   A.  There was a sneaker, a blue sneaker located in the hallway

   5   outside of cell number 6 that had some saran wrap wrapped

   6   around the sneaker.

   7   Q.  I am making reference to Government's Exhibit 4063.  May I

   8   approach, your Honor?

   9            THE COURT:  Yes.

  10   Q.  Agent, is that the item that you are referring to?

  11   A.  Yes, sir, but during the time of the search this plastic

  12   right here was around the sneaker, it wasn't on top.

  13   Q.  Would you mind putting the gloves on and just taking those

  14   out.

  15   A.  Sure.

  16   Q.  Would you show to the jury how that was configured when

  17   you found it in the hallway.

  18   A.  All right, sir.  I am not sure if the not was above it or

  19   below it, but I know in one of the government exhibits there

  20   is a photograph that has it.

  21   Q.  Did it appear to you that perhaps the material was used

  22   to --

  23   A.  It possibly could be used for that, yes, sir.

  24   Q.  Could we have Government's Exhibit 4014 displayed.  Agent,

  25   what we are looking at in Government's Exhibit 4014 are two of


   1   these Honey Bear bottles that you spoke of, correct?

   2   A.  That is correct, sir.

   3   Q.  The door that we are looking at is directly outside cell

   4   number 6, and in fact what we are looking at is the actual

   5   door to cell number 6; is that correct?

   6   A.  Yes, sir, that is correct.

   7   Q.  Could we split this with Exhibit 4000, please.  Could we

   8   highlight the area around cell number 6, please.

   9            Agent, if we are looking at the door to cell number

  10   6, assuming the door to cell number 6 was open to the degree

  11   now shown in Government's Exhibit 4014, the photograph, what

  12   we are looking at is the corner that abuts onto the area

  13   called lab library on the diagram?

  14   A.  Yes, sir.  If you look at the diagram, the diagram is off

  15   by a little bit.  The wall should actually be up a little

  16   further.  The corner represented in Government's Exhibit 4014,

  17   with the two bear bottles on the floor, is actually a

  18   representation of the library here.

  19   Q.  To be a hundred percent clear, could we highlight that

  20   corner area.  We are talking about the corner on the lower

  21   left-hand portion of that now displayed, correct?

  22   A.  That is correct, sir.  Again, in the diagram, when this

  23   door opens here, in the picture it wouldn't be going to the

  24   corner.  But in all actuality, if that door were to swing all

  25   the way back, it would be almost a foot from the corner.


   1   Q.  So the diagram is a little off in the way it measures the

   2   door, for example?

   3   A.  That is correct.

   4   Q.  In the Honey Bear bottle shown in Government's Exhibit

   5   4014, again, that's the way you found them when you arrived on

   6   the scene?

   7   A.  Those two bottles, yes, sir.

   8   Q.  Were there any other Honey Bear bottles found outside of

   9   cell number 6?

  10   A.  I believe we found three other bottles on the interior of

  11   the cell.

  12   Q.  And none were found outside cell 6, were they?

  13   A.  Other than these two.

  14   Q.  You displayed a photograph before, the government

  15   displayed a photograph -- I won't display it again -- of some

  16   what appeared to be Louisiana hot sauce on the ceiling area of

  17   the electrical closet outside cell number 6, is that correct?

  18   A.  That is correct.

  19   Q.  Again, that was a material that you actually sampled in

  20   the sense of taking a swab and submitting to the lab, correct?

  21   A.  Yes, sir.  I believe that was sample number 7.

  22   Q.  It was the lab that made the ultimate chemical

  23   determination as to what that substance was, correct?

  24   A.  That is correct, sir.

  25   Q.  You are not a chemist but as you tell us, it looked the


   1   same and smelled the same, correct?

   2   A.  That is correct, sir.

   3   Q.  From your observations, you drew the conclusion, did you

   4   not, that the hot sauce spattered in that ceiling area had

   5   been sprayed from the doorway of cell number 6, correct?

   6   A.  In the general vicinity, yes, sir.

   7   Q.  In fact, those two Honey Bear bottles that we are looking

   8   at on 4014 were also found in that exact same area, correct,

   9   by the doorway to cell number 6?

  10   A.  On the outside of the cell, yes, sir.

  11   Q.  Can we also display Government's Exhibit 4012, full

  12   screen.  Sir, depicted in Exhibit 4012 are some items.  Am I

  13   correct that those are right outside the entranceway to cell

  14   number 6 and in fact the door we are seeing in the lower

  15   left-hand corner is cell number 6?

  16   A.  That is correct, sir.

  17   Q.  There are broken pieces of plexiglass?

  18   A.  That is correct.

  19   Q.  And a frame that went with it?

  20   A.  That is correct.

  21   Q.  Did you take any swabbings from the plexiglass?

  22   A.  No, sir.

  23   Q.  Is there anything in your report or observations that says

  24   hot sauce was recovered on any of those items?

  25   A.  No, sir.


   1   Q.  You also testified that you recovered certain documents,

   2   correct?

   3   A.  Yes, sir.

   4   Q.  May I have Government's Exhibit 4051A.  I don't know if it

   5   has been offered yet.

   6            MR. GARCIA:  It has not, Judge.

   7            MR. RUHNKE:  Does the government have any objection

   8   to my now displaying it to the jury?

   9            Let me then ask a foundation question.  You testified

  10   that you recovered certain documents in the initial search; is

  11   that right?

  12   A.  Yes, sir, that is correct.

  13   Q.  What documents did you personally recover in the initial

  14   search?

  15   A.  I believe there were some receipts from the Metropolitan

  16   Correctional Facility that we had gotten under bed number 1,

  17   if I recall right, and I believe there may have been one or

  18   two documents on the table.  I have to look at the log.  If

  19   you want to give me a second, I can look.

  20   Q.  Yes, if you have your log and that refreshes your

  21   recollection, absolutely.

  22   A.  Yes, sir, there was a document, item 51 on the evidence

  23   recovery log.  There was a receipt from the Department of

  24   Corrections.  It was an exchange receipt.  That was located

  25   under the mattress of bed number 1.


   1   Q.  Are there any other documents that were seized during that

   2   initial crime scene at cell 6?

   3   A.  No, sir.  We took some photographs of some documents that

   4   were up on a wall but we didn't actually seize them until the

   5   search warrant was obtained.

   6   Q.  Were you involved in the execution and gathering of

   7   documents during the search warrant?

   8   A.  Yes, sir, I seized all the documents.  I was responsible

   9   for seizing them all.

  10   Q.  Let me display a particular document.  Could we have

  11   Government's Exhibit 4051A, and does the government object to

  12   my now showing it to the jury and the agent?

  13            MR. GARCIA:  Yes.

  14            MR. RUHNKE:  Yes, you object?

  15            MR. GARCIA:  Yes.

  16            MR. RUHNKE:  Let me just display it to counsel and

  17   not the jury then.

  18   Q.  I am looking at a document.  You are looking at a

  19   document.  Is that a document that you collected and saw

  20   during the time of the search warrant?

  21   A.  We seized it during the search warrant and I looked at it

  22   afterwards.

  23   Q.  So it is a document that you seized?

  24   A.  Yes, sir.

  25   Q.  Where did the document come from?


   1   A.  I don't recall exactly where it came from.  It came from

   2   inside cell number 6.

   3   Q.  There were a lot of things inside cell number 6, is that

   4   correct?

   5   A.  There sure were, sir.

   6            THE COURT:  I take it there will be another witness

   7   that will deal with these?

   8            MR. GARCIA:  The next witness.

   9   Q.  Did you seize that document?

  10   A.  Yes, sir.

  11   Q.  You yourself?

  12   A.  Yes, sir.

  13   Q.  I ask you again, where did you seize it from?

  14   A.  I really don't know.  There was many, 78 boxes and

  15   containers.

  16   Q.  Was it a document that was in plain view?

  17   A.  I don't remember off the top of my head, sir.

  18   Q.  Do you have a log or other document that would refresh

  19   your recollection as to where that was seized from?

  20   A.  No, sir.

  21   Q.  Display to the agent 4053A, agent and counsel only.

  22            Again, another document that you are looking at, did

  23   you seize that document personally?

  24   A.  Yes, sir.

  25   Q.  Where did you seize it from?


   1   A.  Again, inside of cell number 6.

   2   Q.  But you can't tell us where?

   3   A.  No, sir.

   4   Q.  Was there another agent with you who was writing down the

   5   exact location where everything was seized?

   6   A.  Yes, sir.

   7   Q.  Who would that agent be?

   8   A.  On that occasion in cell number 6, I believe it was S.A.

   9   Kevin -- no, that was during the search.  Can I look at my

  10   log, just to be a hundred percent sure?

  11   Q.  Yes, sir, absolutely.

  12   A.  It should have been S.A. J. Pontrelli.

  13   Q.  Who seized that item?

  14   A.  No, sir.

  15   Q.  Who assisted you in the seizure, is that correct?

  16   A.  He was responsible for writing it down in the log.

  17   Q.  Where exactly each item was seized?

  18   A.  A lot of the items were in a container and there may have

  19   been hundreds of documents in there.  So seized one container

  20   with documents.

  21   Q.  There appear in a photograph two blue containers one on

  22   top of the other.  Are those the containers you are referring

  23   to?

  24   A.  There were other containers that were blue.  I believe

  25   there were some above bed number 1, I believe there were some


   1   over the toilet, and I believe there were a lot of boxes, I

   2   don't know what the colors were, underneath the beds.

   3   Q.  Do you remember a document that begins with the words we

   4   are the Muslims falsely accused?

   5   A.  I remember photographing that, yes, sir.

   6   Q.  Some of the documents we are talking about, many of the

   7   documents that were seized and are going to be offered in

   8   evidence are in what appear to be Arabic writing, correct?

   9   A.  I don't know Arabic, sir.  It's a foreign language to me.

  10   Q.  It did not look to be like Roman letters, correct?

  11   A.  That is true.

  12   Q.  But the document that I am describing right now as we are

  13   the Muslims falsely accused was in English, correct?

  14   A.  I remember some of the documents being in English, yes,

  15   sir.

  16   Q.  Are you able to tell the jury, tell us where that document

  17   was found?

  18   A.  No, sir.  Just, inside the interior of cell number 6, in

  19   one of the containers that was seized.

  20   Q.  Just to make sure that I get the mechanics correct, after

  21   you executed the search warrant, did you then go to cell

  22   number 6, remain in cell number 6, or did you basically take

  23   the boxes back to 26 Federal Plaza and deal with them there?

  24   A.  At the end of the search we took all the materials out,

  25   put them in the hallway, finished our paperwork, loaded the


   1   stuff into vehicles and brought it to 26 Federal Plaza, where

   2   it was put in the evidence room on the 28th floor.

   3   Q.  Do you know who the agent was who swore to the search

   4   warrant?

   5   A.  No, sir, I don't.

   6   Q.  It was not you though?

   7   A.  No, sir, it wasn't.

   8   Q.  So the best you can tell us about these documents at this

   9   point is that you yourself do not know where particularly they

  10   were seized, correct?

  11   A.  No, only to say that they came from cell number 6 in one

  12   of the various containers.

  13   Q.  But they were not among the plain view documents that you

  14   seized, correct?

  15   A.  I don't recall them being in plain view, no, sir.

  16   Q.  You made reference earlier, and I am trying to find the

  17   exhibit right now, of seeing a sneaker in the hallway that

  18   illustrated the point -- I would ask that Exhibit 4025 be

  19   displayed.  I do not know if it is in evidence.

  20            MR. GARCIA:  Yes, it is.

  21   Q.  Again, you still have it in front of you, the sneaker and

  22   the twisted up rope that you referred to?

  23   A.  That is correct, sir.

  24   Q.  Does that show actually how it was found?

  25   A.  That is correct, sir.


   1   Q.  Where are we looking?  What area of 10 South are we

   2   looking at?

   3   A.  Out in the hallway directly across from cell number 6's

   4   door there is an electrical door, as you can see in the

   5   photograph, the hinge.  It was located right there in the

   6   hallway, in the corner.

   7   Q.  Agent, I am going to show you this summary chart that the

   8   government has offered into evidence and has been accepted

   9   into evidence.  Can you look at this chart for me -- if you

  10   don't mind just stepping down for a moment.

  11   A.  Yes, sir.

  12   Q.  Can you just point out for us where the sneaker is in the

  13   photograph?

  14   A.  Yes, sir.  If you look at the green dot, 4063, 4063.

  15   Q.  You are indicating by the door to the electrical closet?

  16   A.  Yes.  It is actually on the far wall, and the hinge for

  17   the door would be right about here.

  18   Q.  Just as a matter of record, although this guide here shows

  19   every single one of the doors open, the door to the electrical

  20   closet, for example, was not open on the day that you

  21   inspected it, is that right?

  22   A.  No, sir, it was locked.

  23            MR. RUHNKE:  Thank you.  You may resume the stand.  I

  24   have no further questions.

  25            THE COURT:  Any redirect?


   1            MR. GARCIA:  Very briefly.  If we could have 4014,

   2   Government's Exhibit, put back up on the screen.


   4   BY MR. GARCIA:

   5   Q.  You recall Mr. Ruhnke asking you questions about this

   6   photograph?

   7   A.  Yes, sir.

   8   Q.  If it is possible, could we enlarge just the area that

   9   shows the two bottles.  I am going to put in front of you

  10   another photograph.  Mr. Ruhnke also asked you some questions

  11   about a plexiglass shield.  Do you recall that?

  12   A.  Yes, sir.

  13   Q.  There was broken shield on the floor, is that right?

  14   A.  Yes, sir.

  15   Q.  He asked you if you had taken any swabs of that.

  16   A.  That is correct.

  17   Q.  Looking at Government's Exhibit 4014, in the area, you

  18   identified the two Honey Bear bottles -- and you might be able

  19   to see it more clearly.  Does that appear to be a piece of the

  20   plexiglass?

  21   A.  That is correct.

  22   Q.  You didn't take a swabbing of that plexiglass, did you?

  23   A.  No, sir.

  24            MR. GARCIA:  Nothing further.

  25            MR. RUHNKE:  Actually, one question.



   2   BY MR. RUHNKE:

   3   Q.  Did you observe that tiny piece of broken plexiglass?

   4   A.  Yes, sir.

   5   Q.  Did you see any reason to take a swabbing from it?

   6   A.  No, sir.

   7            MR. RUHNKE:  Thank you.

   8            MR. GARCIA:  Nothing.

   9            (Witness excused)

  10            THE COURT:  The government may call its next witness.

  11            MR. GARCIA:  The government calls Joseph Foelsch.


  13        called as a witness by the government,

  14        having been duly sworn, testified as follows:


  16   BY MR. GARCIA:

  17   Q.  Agent Foelsch, you work with the FBI?

  18   A.  Yes, I do.

  19   Q.  About how long have you been with the FBI?

  20   A.  I have been with the bureau for 11 years, seven of those

  21   as an agent.

  22   Q.  What squad are you assigned to?

  23   A.  I am assigned to squad C31, which does special

  24   jurisdiction crimes.

  25   Q.  That would include crimes committed inside federal


   1   prisons?

   2   A.  Yes.

   3   Q.  Did there come a time that you were assigned to the

   4   investigation of an attack on Officer Pepe at the Metropolitan

   5   Correctional Center?

   6   A.  Yes.

   7   Q.  What day did you first become involved in that

   8   investigation?

   9   A.  November 1, 2000.

  10   Q.  Did you report to 10 South at the MCC that day?

  11   A.  Yes, I did.

  12   Q.  Was a search conducted of cell number 6 of the 10 South

  13   unit on November 1?

  14   A.  Yes, sir.

  15   Q.  Were you present when a search was going on?

  16   A.  Yes.

  17   Q.  Generally, what was your role there?

  18   A.  At the time I was just observing the search.  I did not

  19   participate in it.  I was watching it.

  20   Q.  When the search was completed, what did you do?

  21   A.  When the search was completed, all the articles that were

  22   taken during the search were put into bins and boxes and

  23   containers and they were taken across the street to our office

  24   at 26 Federal Plaza.

  25   Q.  Did you accompany those bins and boxes from the MCC back


   1   to your office?

   2   A.  Yes, I did.

   3   Q.  After the bins were deposited into the FBI office, did

   4   they remain in custody there?

   5   A.  Yes, they did.

   6   Q.  Did there come a time that you personally reviewed the

   7   items that were contained in the various bins?

   8   A.  Yes.

   9   Q.  In the process of doing that, did you separate various

  10   documents from those bins?

  11   A.  Yes.

  12   Q.  From the time that they were removed from the MCC to the

  13   time you did your review of the containers, were they

  14   constantly in the care of the FBI?

  15   A.  Yes, they were.

  16   Q.  Prior to coming to court, did you have an occasion to view

  17   documents numbered 4050, 51, 52, 53, 54 and 55?

  18   A.  Yes, I did.

  19   Q.  Are those documents documents that you personally removed

  20   from the containers that you just described for us?

  21   A.  Yes.

  22            MR. GARCIA:  At this time, Judge, the government

  23   would offer those, 4050, 51, 52, 53, 54 and 55, and I will put

  24   those in front of you.

  25            MR. RUHNKE:  Actually, may I see those, please.


   1            Thank you.

   2            THE COURT:  They are received.

   3            (Government Exhibits 4050 through 4055 received in

   4   evidence)

   5   Q.  Agent, are those generally the documents that we were just

   6   talking about?

   7   A.  Yes.

   8   Q.  Is it fair to say that two of the documents appear to be

   9   written in English and the other four in Arabic?

  10   A.  Two of them are written in English.  The other four are

  11   written in what I think is Arabic, yes.

  12            (Continued on next page)















   1            MR. GARCIA:  Your Honor, before we get into these

   2   documents, this would be a good time to break.

   3            THE COURT:  We will break for lunch and we will

   4   resume at 2:15.

   5            (Jury excused)

   6            MR. RUHNKE:  Your Honor, we had just five minutes of

   7   housekeeping.

   8            THE COURT:  In open court?

   9            MR. RUHNKE:  It doesn't matter.

  10            Your Honor, the government is just making sure that I

  11   am not going to say something that should be under seal, and I

  12   don't intend to.

  13            First, I have had a conversation with Mr. Fitzgerald

  14   for several days, actually for about a week, trying to locate

  15   a witness from the Bureau of Prisons to testify, rather than

  16   issuing subpoenas in a broad way.  We haven't gotten very far

  17   and it is not for lack of trying of Mr. Fitzgerald, but I am

  18   going to be to a point where I may have to come to your Honor

  19   just to issue subpoenas and bring people in and deal with it

  20   that way.

  21            I still have not gotten an answer from the government

  22   on a query as to why in the indictment it says Salim stabbed

  23   the officer with the former hair brush sharpened to a

  24   shank-type instrument that is now in evidence.

  25            THE COURT:  When does the government believe it will


   1   be able to respond to that?

   2            MR. FITZGERALD:  Your Honor, we can show you ex parte

   3   the materials.  There is no Brady -- the government does not

   4   allege in the indictment that Salim attacked Officer Pepe with

   5   the knife.  The government alleges that Salim attacked a

   6   responding officer with a weapon.

   7            MR. RUHNKE:  Right.  That is important to us because

   8   the weapon is lying in front of the hallway to cell number 6.

   9   The government wants to be certain that it was Salim who

  10   wielded it that will be put before the jury.

  11            MR. FITZGERALD:  Your Honor, we can reveal in the

  12   robing room what cannot be discussed in open court.

  13            THE COURT:  We will take up in the robing room

  14   immediately after we finish whatever else is on your mind.

  15            MR. RUHNKE:  I have given the government this morning

  16   a CNN Discovery Channel series on Yugoslavia called Death of a

  17   Nation, and two of the episodes, each of which run 45 minutes,

  18   have to deal with Bosnia and what occurred in Bosnia and what

  19   occurred to the Muslim population in Bosnia.  The government

  20   is reviewing it, and based on our discussions there may be a

  21   way of shortening the two 45-minute segments, but I do intend

  22   to offer those with what comes into our case.

  23            THE COURT:  Is that with or without any claim that

  24   K.K. Mohamed viewed the programs or viewed the things depicted

  25   in the programs?


   1            MR. RUHNKE:  It is exactly similar to the evidence

   2   that was allowed in the earlier penalty phrase.  In

   3   Mr. Mohamed's statement to the FBI he repeatedly makes

   4   reference to he thought he would be going to fight with

   5   Muslims in Bosnia and that is why he was training in

   6   Afghanistan.

   7            THE COURT:  I just wanted to be sure -- the short

   8   answer, there is no claim that he had been to Bosnia or had

   9   personally seen anything depicted in those programs?

  10            MR. RUHNKE:  That is right.

  11            MR. FITZGERALD:  Just so we are clear, your Honor, we

  12   were just handed those this morning.  We have not seen them.

  13   I am not at all conceding that we won't object to them.  I do

  14   know there are some gory pictures that Mr. Ruhnke says could

  15   be removed.  That goes beyond the logical prior question.

  16            We are waiting on clarification on what Mr. Ruhnke's

  17   experts will testify to.  We have been given general

  18   descriptions of who they are but not the substance of their

  19   expert testimony.  We have been asking for that and we have

  20   been asking for -- we thought we were going to get 3500

  21   material five days before the witnesses testified.  I also

  22   know there are underlying notes.  It sounds as though Mr.

  23   Ruhnke's case will be starting Tuesday and we haven't got

  24   that.

  25            Part of the problem with coming up with a government


   1   witness, I was trying to have somebody to use as a government

   2   witness who will testify in rebuttal.  Not knowing what the

   3   expert witness will say in the defense case, it is hard

   4   finding that witness.  Mr. Ruhnke said that he would like to

   5   have that witness start on Tuesday, which is a new timing

   6   matter.

   7            THE COURT:  Why is this such a mystery?  You want a

   8   Bureau of Prisons witness who will testify as to the

   9   conditions of maximum security confinement?

  10            MR. RUHNKE:  Yes, sir.  I tried to work this out with

  11   the government.  I could have come to your Honor a week ago

  12   asking to bring in the warden.  I didn't do that.  I tried to

  13   work it out with the government.  I am not saying that Mr.

  14   Fitzgerald has not reacted in good faith --

  15            THE COURT:  Any reason why this could be resolved

  16   tomorrow when we are not sitting?

  17            MR. FITZGERALD:  No, Judge.  I will be calling the

  18   Bureau of Prisons over lunch.  There are people out in the

  19   country.  I think we were trying yesterday.

  20            MR. RUHNKE:  On the issue of expert reports, I had

  21   told the government in a conversation yesterday, we had agreed

  22   that Gerald Post, who is the former CIA analyst, that we would

  23   have a much fuller statement of his testimony by tomorrow and

  24   we intend to meet that commitment, and we will have 3500

  25   material by tomorrow.  The government has gotten a 38 or


   1   40-minute report from a mitigation specialist, has gotten a

   2   general description of what Mark Cunningham is going to

   3   testify to but has, I am sure, 20 transcripts of

   4   Dr. Cunningham's testimony on similar issues.  I don't think

   5   the government would be either surprised or prejudiced by what

   6   has been disclosed.

   7            MR. FITZGERALD:  We were surprised by the opening

   8   where he says we will have two witnesses discussing remorse

   9   with respect to Khalfan Khamis Mohamed.  Knowing what he is

  10   going to testify about, having a library available doesn't

  11   really help.

  12            MR. RUHNKE:  Can we discuss the grand jury matter

  13   then?

  14            THE COURT:  All right.  Otherwise we are adjourned

  15   until 2:15.

  16            (Pages 7927-7942 sealed)

  17            (Luncheon recess)










   1                  A F T E R N O O N   S E S S I O N

   2                            2:15 p.m.

   3            (Jury present)

   4    JOSEPH FOELSCH, resumes.

   5            THE COURT:  Good afternoon.

   6            THE JURY:  Good afternoon.

   7            THE COURT:  The witnesses may resume the stand.

   8            MR. GARCIA:  Thank you, Judge.

   9   BY MR. GARCIA:

  10   Q.  Agent Foelsch, I believe when we broke you were talking

  11   about certain documents that you had recovered from the bins

  12   in the search of Cell 6; is that correct?

  13   A.  Yes.

  14   Q.  In front of you, are those again the documents that you

  15   were referring to which are now in evidence?

  16   A.  Yes.

  17   Q.  And is it fair to say two have English writing and four

  18   have what you believe to be Arabic?

  19   A.  Correct.

  20   Q.  And I have also placed in front of you 4050-A.  Is that a

  21   photograph of the document 4050?

  22   A.  Yes, it is.

  23            MR. GARCIA:  I would offer 4050-A.

  24            THE COURT:  Received.

  25            (Government Exhibit 4050-A received in evidence)


   1            MR. GARCIA:  And if we could display 4050-A at this

   2   time.

   3   Q.  It's a little wobbly there.  Agent, if you could read it

   4   for us.

   5   A.  Read it off of 4050-A here?

   6   Q.  Certainly.

   7   A.  "We are the Muslims who were accused falsely," and there's

   8   a line from the word "falsely" to make it appear it should go

   9   before "accused," "of bombing the embassy in Africa.  We have

  10   captured the tenth floor in MCC and we have several lawyers

  11   and officials.  They are under our full control.  We were

  12   forced to resort to this solution after we were deprived of

  13   our legal rights.  We request the immediate release of," and

  14   then there's a space, "and send them outside the U.S.  If the

  15   government worries about the safety of its citizens, it has to

  16   comply with all our demands, otherwise, it will be responsible

  17   for any consequences."

  18   Q.  Agent, I believe you have in front of you a document

  19   marked 4055.

  20   A.  Yes.

  21   Q.  If you could just hold that up.  On one side is that a

  22   printed material?

  23   A.  Yes.

  24   Q.  And what does that appear to be?

  25   A.  A list of tapes, videotapes.


   1   Q.  And on the other side is there some handwritten material?

   2   A.  Yes.

   3   Q.  A handwritten line?

   4   A.  Yes.

   5            MR. GARCIA:  If we could display 4055, page 2.

   6   Q.  What does that say there?

   7   A.  I'm sorry?

   8   Q.  What does that say?

   9   A.  It says, one word at the top says "deprive" and then down

  10   and over a little bit in parentheses are the words "of our

  11   legal rights.

  12            MR. GARCIA:  "Your Honor, at this time I would like

  13   to read and offer a stipulation.

  14            "It is hereby stipulated by and between the parties

  15   as follows:

  16            "Government Exhibits 4051-A-T and 4051-B-T are fair

  17   and accurate translations of Government Exhibit 4051-A and

  18   4051-B, respectively.

  19            "Government Exhibits 4052-A-T and 4052-B-T are fair

  20   and accurate translations of Government Exhibit 4052-A and

  21   4052-B, respectively.

  22            "Government Exhibit 4053-A-T is a fair and accurate

  23   translation of Government Exhibit 4053-A, and Government

  24   Exhibits 4054-A-T and 4054-B-T are fair and accurate

  25   translations of Government Exhibits 4054-A and 4054-B,


   1   respectively.

   2            "It is further stipulated and agreed that this

   3   stipulation may be received in evidence as a government

   4   exhibit at trial."

   5            And the government would offer the stipulation, which

   6   is numbered Government Exhibit 4066, as well as the underlying

   7   translations numbered as I described.

   8            THE COURT:  Received.

   9            (Government Exhibits 4066, 4051-A-T, 4051-B-T,

  10   4051-A, 4051-B, 4052-A-T, 4052-B-T, 4052-A, 4052-B, 4053-A-T,

  11   4053-A, 4054-A-T, 4054-B-T, 4054-A, 4054-B received in

  12   evidence)

  13            MR. GARCIA:  If we could now turn to Government

  14   Exhibit 4051-A-T and display that.  And if it's possible,

  15   could we enlarge the page from the number 3267 down.

  16   Q.  Could you read that for us, Agent?

  17   A.  Yes.  The top line says 3267 and it says it's circled,

  18   talk, then something unintelligible, with Uthman.  Then notes,

  19   equal sign, the hunt, something unintelligible.  Everything

  20   except opening cans/boxes.  Looks like there's a question mark

  21   then the numbers 1293, 1292 equals placing things on the

  22   counter.  Then something unintelligible.

  23            Fortification after being exposed.  Then impractical,

  24   table, door, something unintelligible, brooms and similar

  25   items, fire extinguisher.  Then under that is the room of the


   1   lieutenant, custodial room, the hunt, crossed out, placing

   2   boxes near the door, tying one hand to the door of the,

   3   something unintelligible.

   4            Down is something crossed out, untying the knot,

   5   unintelligible, leaving a note on the door stating it is open

   6   and he is in the bathroom, unintelligible, in an official trip

   7   to prove my innocence of the charges unjustly and unfairly

   8   framed upon me by the Americans.  And he needs to listen to

   9   defense witnesses.  Please facilitate his mission and

  10   cooperate with him, and the number is 9753232 and 9822290.

  11            And then written on the other side of the document is

  12   dividing the work of the hunting, preparation, attack,

  13   questioning, cooling, and having a sufficient number.  It is

  14   possible to spare the guard for the purpose of hunting.  Since

  15   the present is sufficient whereas the absent is on credit.

  16            Over on the left-hand side it says scenario,

  17   something unintelligible, crossed out, scenario, something

  18   unintelligible, roof, and then next to that, not to rely on

  19   the hunt because it's hypothetical.  First to work when,

  20   unintelligible, presence of a sufficient number.  The

  21   employees are better than the lawyers and the prisoners.

  22            MR. GARCIA:  And if we could now have displayed

  23   4052-A-T.

  24   Q.  Again, Agent, could you read that?

  25   A.  Number one at the top.  In the name of God.


   1            1.  Correctness/safety of action/work (before,

   2   something crossed out, during video, camera, eyewitnesses,

   3   destroying, unintelligible, after and talk).

   4            2.  Informing all of the plan and its steps.

   5            3.  Division of labor and role sharing.

   6            4.  Time calculation for all stages.

   7            5.  Cooling methods.

   8            6.  Fortification methods.

   9            7.  Arming in the beginning of the action then in its

  10   progress.

  11            8.  Subversion (after causing utmost injury to human

  12   lives.  Utmost utilization of cutting off electricity).

  13            9.  Describing the zero hour and who determines that,

  14   crossed out.

  15            10 also is crossed out.

  16            11.  Informing prior to being exposed and after

  17   executing the utmost damage.

  18            12.  Demands to the media as a whole.  However, with

  19   the administration they would be through certain stages.

  20            13.  Crossed out.  Specifying the demands and their

  21   time arrangements, unintelligible.

  22            14 appears nothing to be written next to that and

  23   different numbers below that.

  24            Number 3.  All, unintelligible.

  25            Number 2.  All cameras and lamps and the windows'


   1   glass.

   2            1.  Erasing all computers.

   3            5.  Burning all computers.  3 --

   4            THE COURT:  Five reads?

   5            THE WITNESS:  Burning all counters.  I'm sorry, your

   6   Honor.

   7            3.  All instruments/appliances and the refrigerator

   8   and like.

   9            4.  All alarm, fire and, unintelligible, sets.

  10            6.  All T.V. and telephone lines.

  11   Q.  And if we could now see 4052-B-T.

  12   A.  It starts out:  Duty of the guard.

  13            1.  Handling and identifying the keys and that we

  14   want to get out.

  15            2.  Keeping an eye on the back (adjective).

  16            3.  The video and stopping it, in brackets, it may

  17   not exist.

  18            4.  Exits and whether there are keys to them.

  19            5.  Electricity and its distribution.

  20            6.  Calling upon others.

  21            7.  Opening 46 and entering the telephone.  In

  22   parentheses:  It should be known whether to dial 111 or 333.

  23            8.  Luring the hunt and opening the door for it.

  24            9.  Informing the bottom/lower that the path is

  25   "clear" before going down.


   1            10.  Crossed out, informing the inquiring people that

   2   whom they inquire about came in the morning and left.  In

   3   brackets:  I said that until the matter gets revealed.

   4            11.  Crossed out.  He should say he is under,

   5   unintelligible, and that a gun is pointed at his head and he

   6   doesn't know how he got hold of the gun, unintelligible, and

   7   they have all hostages, unintelligible.

   8            Then you have a bracket that says number one and two

   9   are crossed out.

  10            3.  Bringing chains and fire extinguishers and

  11   locking the bathroom door.

  12            10.  Civilian hunt circled, lured not attacked.

  13            8.  The party, unintelligible, for negotiations.

  14            8, again.  Relying on God is very important and I

  15   think we will test, unintelligible.

  16            Getting rid of some prisoners.

  17            7.  Crossed out, with Odeh 2 equals 6 in fact,

  18   unintelligible.

  19            1.  Crossed out.  Working with Abu Tajar is better

  20   and easier than Somo, PH.  Phonetic, I assume.

  21            Numbers 2 to 4 are crossed out and unintelligible.

  22            5.  Crossed out.  There is no bathroom in 9 and it is

  23   possible to use, unintelligible.

  24            6.  Crossed out.  Inquiring from al Saleh about

  25   Mamdouh on Saturday and Sunday and to confirm, unintelligible.


   1   Q.  If we could have 4053-A-T.

   2   A.  Starts with the number 5.  After the the completion:  1.

   3   Media.  Brackets:  Before going down.  2.  Fortification.  3.

   4   Negotiations.  4.  Sabotage, with an arrow to 1.  And there's

   5   nothing next to the 5.

   6   Q.  If we could have 4054-A-T.

   7   A.  Number 6 at the top.  In the name of God.  The guard.

   8   Something crossed out.  The lieutenant.  Opening for the

   9   brothers/closing window 3, 2.  Quick arming (fire

  10   extinguisher, brooms).  One Rick (PH) then the rest.  Arming

  11   (table, fire extinguishers, pipe 1, the counter, lieutenant

  12   (fire extinguisher) safe deposits, electricity room, brooms,

  13   the door of, unintelligible).  Keeping an eye.  Hunt.  In

  14   brackets:  Civilian lured.  The mirror.  Equal the guard.

  15   Equal taking things from the room (the luggage, the knives,

  16   the paper for the window).  Equal quick arming from

  17   electricity.  Equal crossed out and an equal.

  18   Q.  And finally, 4054-B-T.

  19   A.  Number 7 at the top.  In the name of God.  Crossed out,

  20   1935, 6822, 5149.  Crossed out, 6541, 4687, 9444, 4322.

  21   Triangle, the neighbors, crossed out, the priest, I am

  22   Dabdouba.  Control.  Taking the boxes.  Covering the windows.

  23   Arming (electricity, the counter, the lieutenant, the green,

  24   the table, the big and the small fire extinguishers).  Rick

  25   the Imam.  The completion.  Preparing the hunting boxes.


   1   Keeping the eye.  Equal warning against, unintelligible.

   2   Equal making eyeglasses.  One, Odeh (1).  Two, Al-'Owhali (2).

   3   There's a line with the number 3 and Dabdoub, PH.

   4   Q.  Agent, I would like to ask you about some additional

   5   documents recovered from Cell 6, and if I could Government

   6   Exhibits 4099, 4100, 101, 102 and 103, not in evidence yet.

   7            Were those documents that you recovered from the bins

   8   that came from Cell 6?

   9   A.  Yes.

  10            MR. GARCIA:  At this time, Judge, we would offer

  11   4099, 4100, 4101, 4102 and 4103.

  12            THE COURT:  Received.

  13            (Government Exhibits 4099, 4100, 4101, 4102 and 4103

  14   received in evidence)

  15   BY MR. GARCIA:

  16   Q.  If we could, if you could just generally describe for us,

  17   what are those, Agent.

  18   A.  Commissary receipts.

  19   Q.  And they were found inside the cell?

  20   A.  Yes.

  21   Q.  And do they list the items that were purchased?

  22   A.  Yes, they do.

  23   Q.  And do they list the inmate who purchased the item?

  24   A.  Yes.

  25   Q.  And if you could, why don't we start with 4099.  And they


   1   also list a date; is that right?

   2   A.  That's correct.

   3   Q.  And why don't you tell us who the inmate is and the date

   4   and what was purchased.

   5   A.  The inmate is Salim, the date August 17, 2000.  And do you

   6   want a list of everything?

   7   Q.  Is there a reference to a brush?

   8   A.  Yes, one hairbrush.

   9   Q.  Why don't we go to 4100.

  10   A.  Salim, February 25, 1999.  There's a listing for one afro

  11   comb.

  12   Q.  And 4101.

  13   A.  Salim, August 19, 1999.  Among other things, one afro

  14   comb.

  15   Q.  And if we could have 4102 displayed.

  16   A.  Inmate Mohamed, May 18, 2000.  Among other things, one

  17   hairbrush.

  18   Q.  And 4103?

  19   A.  Mohamed, April 6, 2000.  Among other items, one hairbrush.

  20   Q.  Thank you.

  21            Did there come a time, Agent, that you returned to

  22   the Metropolitan Correctional Center and received a videotape?

  23   A.  Yes.

  24   Q.  And why did you do that?

  25   A.  There seemed to be some confusion as to whether we had


   1   received the correct tape showing what we believe would have

   2   been the incident, the attack on Officer Pepe.  I proceeded to

   3   the Metropolitan Correction Center to get a tape that had

   4   previously been turned over to the FBI and returned to MCC.

   5   Q.  So you wanted to collect the tape that had been previously

   6   turned over?

   7   A.  Correct.

   8   Q.  And then had been returned?

   9   A.  Yes.

  10   Q.  I'm going to show you Government Exhibit 4119, see if you

  11   recognize that.

  12   A.  Yes, I do.

  13   Q.  Is that the tape you received at the MCC?

  14   A.  Yes, it is.

  15   Q.  About what date was that, approximately, that you

  16   collected that tape?

  17   A.  November 7th.

  18   Q.  Where were you when you got it?

  19   A.  I was at MCC.

  20   Q.  Do you remember where inside the MCC?

  21   A.  Yes, I do.

  22   Q.  Where was that?

  23   A.  Approximately, if you remember the description given by --

  24   you have to pass through -- it was before you entered the

  25   second door to go into the hallway that the control room is


   1   in.

   2   Q.  And the best of your recollection, who gave you the tape?

   3   A.  Robert Perrish.

   4   Q.  Did you have a chance to review the tape?

   5   A.  Yes, I did.

   6            MR. GARCIA:  I will offer it, 4119.

   7   Q.  Is that the number on the --

   8   A.  Yes.

   9            MR. GARCIA:  Offer 4119.

  10            THE COURT:  Received.

  11            (Government Exhibit 4119 received in evidence)

  12   BY MR. GARCIA:

  13   Q.  Have you had a chance the review 4119, Agent?

  14   A.  Yes.

  15   Q.  And generally, your description, what's on there?

  16   A.  It appears to be 9 South at the Metropolitan Correction

  17   Center.

  18   Q.  Is there a date stamped on the video?

  19   A.  Yes.

  20   Q.  What is the date?

  21   A.  October 31st, 2000.

  22            MR. GARCIA:  Thank you.  I have nothing further.

  23            THE COURT:  Mr. Stern.


  25   BY MR. STERN:


   1   Q.  Agent, you said that video appeared to be 9 South, is that

   2   what you meant, or did you mean 10 South?

   3   A.  I meant 9 South.

   4   Q.  So there's no shots on that video of 10 South at all?

   5   A.  I believe there might be some shots of what I think is the

   6   entranceway to 10 South and one or -- I think it's both.  Not

   7   every sequence shows the recreation areas on 10 South.

   8   Q.  Okay.  And by that you mean the big, sort of empty cells

   9   when you say the recreation, is that what you mean?

  10   A.  Recreation areas.

  11   Q.  They are not outdoors, right?

  12   A.  Right.  Yes, that's correct.

  13   Q.  They are indoors?

  14   A.  Yes, sir.

  15   Q.  You have done a number of different things in working on

  16   this case, have you not?

  17   A.  Yes, sir, I have.

  18   Q.  First, for example, one of the things you did was take ink

  19   footprints from Mr. Mohamed, right?

  20   A.  Yes, sir.

  21   Q.  You've also been the agent in charge of evidence when it's

  22   been brought places for testing, correct?

  23   A.  Sometimes.

  24   Q.  I'm not saying on every occasion.  That's one of the kinds

  25   of work you have done?


   1   A.  Yes, sir.

   2   Q.  The thing that you were testifying about here today in

   3   part is a group of documents that were seized from Cell No. 6

   4   on 10 South, right?

   5   A.  Yes, sir.

   6   Q.  And you have gone through in translation what those

   7   documents were, correct?

   8   A.  Yes.

   9   Q.  But the translations we were shown don't reflect what the

  10   actual documents look like, do they?  Is there typing on a

  11   piece of paper, not in the original language or on the

  12   original pieces of paper?

  13   A.  Correct.

  14   Q.  Okay.

  15            MR. STERN:  If the government would put up 4054B,

  16   please.

  17   Q.  Is that what the actual document that was seized looks

  18   like?

  19   A.  I'm sorry, can you rephrase that again?

  20   Q.  Yes.  Is that one of the actual documents that was seized

  21   from Cell No. 6 on 10 South?

  22   A.  Yes.

  23            MR. STERN:  Could we have that blown up a little so

  24   it's clearer, please.

  25            And if we could see 4054-A, please.


   1   Q.  Is that just the flip side of that same document?

   2   A.  Yes, sir.

   3   Q.  Do you know where in particular that document was seized

   4   in Cell No. 6?

   5   A.  The location of the document?

   6   Q.  Right.

   7   A.  No.

   8   Q.  Do you know what box it was in, for example?

   9   A.  What box in the cell?

  10   Q.  Yes.

  11   A.  No, I do not.

  12   Q.  Or what bed it was near?

  13   A.  No, I do not.

  14   Q.  Do you know if it was in plain view or not inside the

  15   cell?

  16   A.  No, I do not.

  17            MR. STERN:  Could we see 4053-A, please.

  18   Q.  That is a photo of another one of the actual documents

  19   that was seized, correct?

  20   A.  Yes, sir.

  21   Q.  And that's how it looked at the time at which it was

  22   seized?

  23   A.  Yes, sir.

  24   Q.  You know about that document, where specifically inside

  25   Cell No. 6 it was taken from?


   1   A.  No.

   2   Q.  About any of these documents, do you have notes or do you

   3   know of anyone who has notes that would tell us where exactly

   4   inside that cell they were seized from?

   5   A.  No.

   6   Q.  Do you know about any of these documents that we have

   7   discussed, whether or not they were in plain view inside Cell

   8   No. 6?

   9   A.  I do not know.

  10   Q.  I'm going to run through the rest of these documents.  I

  11   just want you to tell me yes or no whether or not these are

  12   the actual photos of the documents that were seized, okay?

  13   A.  Yes.

  14            MR. STERN:  Could we see 4052-B, please, and 4052-A I

  15   think should be the flip side of that document.

  16   Q.  Is that one of the documents you seized?

  17   A.  I didn't get a look at the B side.  The A side appears to

  18   be that document, yes.

  19   Q.  Okay.

  20            MR. STERN:  Could we see 4051-A, please.

  21   Q.  Does that appear to be one of the documents you seized?

  22   A.  Yes.

  23   Q.  And that document has some English writing on it, doesn't

  24   it?

  25   A.  Yes, it does.


   1   Q.  Could you read out loud what that writing is?

   2            MR. STERN:  Could it be blown up a little, please.

   3   A.  "Winning the war against Asthma and allergy.  Dr. Allan

   4   Cutler."

   5   Q.  I don't know if you are aware whether or not Mamdouh Salim

   6   suffers from Asthma?

   7   A.  No, I do not.

   8   Q.  You do not know?

   9   A.  No, sir.

  10   Q.  You have already been shown the document in English.  That

  11   is one of the documents you seized, correct?

  12   A.  There are two in English, sir.

  13   Q.  You're right.  I'm sorry.  I meant the longer note that

  14   begins "we are the Muslims," 4050-A.

  15   A.  I'm sorry.  Your question?

  16   Q.  That's one of the documents you seized?

  17   A.  Yes.

  18   Q.  And the other document we're talking about that you said

  19   was in English is the flip side of this list, correct; it's

  20   4055-A and B?

  21   A.  Yes.

  22   Q.  You actually went into the cell when these things were

  23   taken, didn't you?

  24   A.  I was in the cell while the search was going on to view

  25   the cell.  I did not participate in the seizing of documents


   1   and I did not contribute anything to the search itself.  I

   2   just wanted to view the cell, the interior of the cell.

   3   Q.  When you viewed the cell, did you see any of these papers

   4   sticking up on the walls?

   5   A.  These papers?

   6   Q.  Yes.

   7   A.  I don't know.

   8   Q.  Do you remember seeing any of them in the open, on top of

   9   a desk?

  10   A.  I don't recall -- no documents stick out in my mind as to

  11   where they were.

  12   Q.  Another thing that you participated in was trying to get

  13   the videotape made on 10 South, correct?

  14   A.  Trying to get the videotape made?

  15   Q.  Yes, of what was going on on 10 South?

  16   A.  Yes, I tried to acquire the tape, if one existed.

  17   Q.  And I think you said that on the 7th you went and tried to

  18   do that, right?

  19   A.  Yes.

  20   Q.  Is that what you testified?

  21   A.  Yes, the 7th.

  22   Q.  And when you got that and looked at it, you realized it

  23   wasn't the right tape, isn't that right?

  24   A.  Correct.

  25   Q.  And so a couple of days later, on the 9th, you called to


   1   speak to someone named Robert Perrish, right?

   2   A.  I don't recall the date, Mr. Stern.

   3   Q.  Let me show you this document marked K.K.M. 12.  Does that

   4   refresh your recollection as to the date on which you called

   5   Mr. Perrish?

   6   A.  Yes, November 9th, 2000.

   7   Q.  And on that date you had a conversation with Mr. Perrish

   8   about whether or not that tape was available, right?

   9   A.  I had a conversation with Mr. Perrish, asking him, or

  10   telling him and asking him the tapes that we had did not

  11   appear to be the tapes of the incident where Officer Pepe was

  12   assaulted, and I was asking him if he knew what the tapes were

  13   that we had, or where a tape that would show that assault

  14   might exist, or if it did exist.

  15   Q.  And Mr. Perrish told you, did he not, that he believes

  16   that the tape started at 11 p.m. on October 31st, 2000, and

  17   stopped recording at 1:04 a.m. on November 1, 2000, didn't he

  18   tell you that?

  19   A.  That's what I recall, yes.

  20   Q.  And he then told you that he believes that the tape he had

  21   given to the FBI, to an agent of the FBI, was a copy and not

  22   the original, right?

  23   A.  Yes, he did say that.

  24   Q.  And he finally told you the original was reused and was

  25   therefore unavailable, right?


   1   A.  Yes.

   2            MR. STERN:  I have nothing else.  Thank you, Agent.


   4   BY MR. GARCIA:

   5   Q.  Agent, just so we're clear, this exhibit 4118, which is

   6   already in evidence, that's another videotape, right?

   7   A.  Yes, it is.

   8   Q.  And you viewed that tape, right?

   9   A.  Yes, I did.

  10   Q.  And does that in fact show a period of time, according to

  11   the tape, from 11 p.m. to 1 a.m.?

  12   A.  Yes, it does.

  13   Q.  And the tape that you received, 4119, is it your

  14   understanding that that is the tape that was originally given

  15   to the FBI on November 1?

  16   A.  That's my understanding.

  17   Q.  Do you know whether this particular tape is a copy or was

  18   the original one that was given to the FBI?

  19   A.  I don't know.

  20            MR. GARCIA:  Nothing further.

  21            THE COURT:  Thank you.  You may step down.

  22            MR. STERN:  One second, your Honor.

  23            THE COURT:  Oh, yes.


  25   BY MR. STERN:


   1   Q.  Mr. Perrish told you that that was a copy, right?

   2   A.  That's what Mr. Perrish told me.

   3   Q.  And did he tell you when that copy was made?

   4   A.  No, sir.

   5   Q.  Did he tell you who made that copy?

   6   A.  No, sir.

   7   Q.  Did he tell you where that copy was made?

   8   A.  No.

   9   Q.  Did he tell you why a copy was made?

  10   A.  I don't recall.

  11            MR. STERN:  Thanks.

  12            THE COURT:  You may step down.

  13            THE WITNESS:  Yes, sir.

  14            (Witness excused)

  15            MR. GARCIA:  Government calls Charles Kubilus.


  17        called as a witness by the government,

  18        having been duly sworn, testified as follows:


  20   BY MR. GARCIA:

  21   Q.  Sir, where do you work?

  22   A.  I work for the FBI in Washington, D.C.

  23   Q.  What do you do for the FBI?

  24   A.  I'm a fingerprint specialist.

  25   Q.  How long have you been doing that type of work,


   1   fingerprint analysis?

   2   A.  Total fingerprint analysis, about 20 years; latent

   3   fingerprint analysis for about 13 years.

   4   Q.  Fair to say that you periodically go for training in this

   5   field?

   6   A.  Yes, I do.

   7   Q.  And could you briefly explain for us very briefly how a

   8   latent print is left on an item?

   9   A.  Well, there are small raised portions of skin on the

  10   undersides of the fingers, and on these raised portions of

  11   skin are small pores and from these pores perspiration

  12   secretes and it spreads out over those ridges so that

  13   sometimes when an item is touched, an outline of those ridges

  14   is either left in or on that item.

  15            Now, generally speaking, that transferring agent

  16   making that latent print is perspiration, but if there is any

  17   grease, any other foreign matter that is on the fingers, like

  18   grease or oils or blood or paint, that could also be the

  19   transfer agent in making a latent print.

  20            Now, the term "latent" means hidden, and a latent

  21   print is invisible to the naked eye.  Therefore, they need

  22   some form of processing in order to make them visible, either

  23   with chemicals, powders --

  24            MR. RUHNKE:  If you could keep your voice up a

  25   little, sir.  Thank you.


   1   Q.  Were you finished with your answer?

   2   A.  Yes, sir.

   3   Q.  Based upon your training and experience in fingerprint

   4   analysis, are certain types of surfaces better able to retain

   5   fingerprints than others?

   6   A.  Yes, sir.

   7   Q.  And could you give us some examples and tell us why.

   8   A.  First and foremost, most items are porous or non-porous,

   9   non-porous being a piece of finished wood, plastic, aluminum

  10   can, porous items being paper products, sheets of lined paper,

  11   checks, money orders.

  12            Latents that are left on non-porous surfaces, such as

  13   this piece of finished wood, are very fragile.  They can be

  14   easily destroyed by being wiped away because they are actually

  15   on the item, not in it, like they would be in a piece of paper

  16   where they wouldn't be easily destroyed because that

  17   fingerprint residue is actually absorbed into the piece of

  18   paper.

  19   Q.  Sir, did there come a time that you were asked to do

  20   certain fingerprint comparisons in a case involving an attack

  21   on a corrections officer?

  22   A.  That's correct.

  23   Q.  And did you, in doing those comparisons, compare latent

  24   prints to the known fingerprints of Khalfan Mohamed and

  25   Mamdouh Salim?


   1   A.  Yes, I did.

   2   Q.  Did you develop any latent prints on the items that were

   3   submitted to you?

   4   A.  Yes.

   5   Q.  And did you, from those latent prints that you developed,

   6   were you able to make any matches with either of the known

   7   prints I just described?

   8   A.  Yes, I did.

   9   Q.  As an initial matter, whose fingerprints were you able to

  10   match?

  11   A.  There were five fingerprints and one palm print identified

  12   with a Salim.

  13   Q.  That was defendant Salim?

  14   A.  That's correct.

  15   Q.  Did you make any identifications with the defendant

  16   Khalfan Mohamed?

  17   A.  No.

  18   Q.  And if we could go to Government Exhibit 4050, which is I

  19   believe in front of you.

  20            MR. GARCIA:  Perhaps you could put that on the screen

  21   while he is talking about it.

  22   Q.  Were you able to lift any latent prints from this

  23   document?

  24   A.  Yes.

  25   Q.  How many?


   1   A.  Just one.

   2   Q.  And whose print was that?

   3   A.  Mr. Salim.

   4   Q.  And 4053, which I believe is also in front of you.

   5            MR. GARCIA:  And again, if we could have it

   6   displayed.

   7   Q.  Any latents developed on that?

   8   A.  Yes.

   9   Q.  How many?

  10   A.  There was two fingerprints and one palm print.

  11   Q.  And who do they belong to?

  12   A.  Mr. Salim.

  13   Q.  And 4054?

  14   A.  Yes.

  15   Q.  And again, how many and who did they belong to?

  16   A.  Just one, and that was Mr. Salim.

  17   Q.  Were you given other items to attempt to develop latent

  18   prints on in this investigation?

  19   A.  Yes, I was.

  20   Q.  I will show you 4042 in evidence, 4044, also in evidence,

  21   4043 in evidence and 4045.

  22   A.  Yes, sir.

  23   Q.  Were those items that you were given to attempt to develop

  24   latent prints?

  25   A.  Yes, they were.


   1   Q.  Were you in fact able to develop any latent prints of

   2   value from any of those items?

   3   A.  No, sir.

   4   Q.  I'm going to show you 4041 for identification only, not in

   5   evidence.  Did you test that item for fingerprints?

   6   A.  Yes, I did.

   7   Q.  Were you able to develop any latent prints on that item?

   8   A.  No.

   9            MR. RUHNKE:  Your Honor, Exhibit No.?

  10            MR. GARCIA:  4041, and we are offering that subject

  11   to connection only at this time and not showing it, Judge.

  12            THE COURT:  Received subject to connection.

  13            (Government Exhibit 4041 received in evidence)

  14            MR. GARCIA:  I have nothing further.


  16   BY MR. RUHNKE:

  17   Q.  Sir, you're an agent with the FBI?

  18   A.  No, sir, I'm not an agent.

  19   Q.  You are a --

  20   A.  Fingerprint specialist.

  21   Q.  Fingerprint specialist?

  22   A.  Yes, sir.

  23   Q.  Can you tell the jury whether you developed any other

  24   prints that would have been of comparison value in your

  25   examination?


   1   A.  As it relates to these particular items?

   2   Q.  As relates to all the items you examined.

   3   A.  Yes.

   4   Q.  And how many other prints of value did you develop?

   5   A.  That I developed?

   6   Q.  Or that the -- let me back up, then.  How many

   7   fingerprints specialists examined items in connection with

   8   this case?

   9   A.  How many items?

  10   Q.  How many fingerprint specialists identified items in

  11   connection with this case?

  12   A.  Just me.

  13   Q.  So my question is -- yes?

  14   A.  Yes.

  15   Q.  How many fingerprints of comparison value did you develop?

  16   A.  In totality?

  17   Q.  In totality.

  18            THE WITNESS:  Can I look at my notes, your Honor?

  19            THE COURT:  Go ahead.

  20   A.  To date, there were a total of six fingerprints, two palm

  21   prints, four toe prints, one footprint and two impressions

  22   which are either palm prints or footprints.

  23   Q.  And am I correct in that quite recently you have had an

  24   opportunity to examine footprints and toe prints of Khalfan

  25   Mohamed; is that correct?


   1   A.  That's correct.

   2   Q.  And that whatever you were looking at that had footprints

   3   and toe prints were not the footprints and toe prints of

   4   Khalfan Mohamed, correct?

   5   A.  That's correct.

   6   Q.  Have you recently requested, or are you going to request,

   7   fingerprint -- I'm sorry, toe prints and footprints of Mamdouh

   8   Mahmud Salim?

   9   A.  Yes.

  10   Q.  You have requested them?

  11   A.  Yes.

  12   Q.  Have you had an opportunity to compare those footprints or

  13   toe prints or have you received them?

  14   A.  I have had an opportunity to glance at those here while I

  15   have been in New York, but I have requested that they be

  16   shipped down so I can have the --

  17   Q.  Your analysis is not complete on those?

  18   A.  That's correct.

  19   Q.  Did you develop fingerprints of comparison value -- maybe

  20   I should stop there.

  21            Would you tell the jury what you mean, and I think I

  22   understand what you mean, but would you tell the jury what is

  23   meant by fingerprints of comparison value.

  24   A.  Of all I believe that there is sufficient area in that

  25   sufficient ridge detail in a latent print that I can determine


   1   whether an individual had left that latent print or not.

   2   That's what we mean when we say "of value," that there is

   3   sufficient ridge detail there for a conclusive comparison.

   4   Q.  Is it your testimony that you identified fingerprints of

   5   comparative value that were not the fingerprints of Khalfan

   6   Mohamed and not the fingerprints of Mamdouh Mahmud Salim?

   7   A.  Not that I developed, no.

   8   Q.  Did you identify fingerprints of comparative value?

   9            I don't want to quibble over terminology.

  10   A.  I'm not quite sure I understand your question.

  11   Q.  Okay.  We'll start from the beginning.

  12   A.  Okay.

  13   Q.  You analyzed a great deal of material that was told to you

  14   had been seized in connection with this investigation, for

  15   example, were you not?

  16   A.  Yes, sir.

  17   Q.  And you analyzed handcuffs, radios, documents, keys, a

  18   whole gamut of materials, correct?

  19   A.  That's correct.

  20   Q.  How many fingerprints did your examination reveal of

  21   comparative value?

  22   A.  I believe I have already stated that there were 12

  23   fingerprints, 2 palm prints, 4 toe prints, 1 footprint and 2

  24   footprints or palm prints, and I couldn't tell exactly what

  25   they were.


   1   Q.  None of the items had the fingerprints on them of Khalfan

   2   Mohamed, correct?

   3   A.  That's correct.

   4   Q.  Some of the items had the fingerprints that you could

   5   identify of Mamdouh Mahmed Salim, correct?

   6   A.  That's correct.

   7   Q.  Were there then prints that were not Mr. Salim's and not

   8   Mr. Mohamed's that were nonetheless of comparative value?

   9   A.  Yes.

  10   Q.  And how many of them were there?

  11   A.  Just right off the top of my head, I have identified five

  12   fingerprints, so that would be seven fingerprints that are

  13   left remain unidentified.

  14   Q.  There are seven fingerprints, then, that are neither

  15   Mr. Mohamed's or Mr. Salim's, but would be of identification

  16   value, correct?

  17   A.  Yes.  In addition to that, there's one palm print that

  18   doesn't, that wasn't made by Mr. Salim or Mr. Mohamed.

  19   Q.  Have you looked at the fingerprints, for example, of a man

  20   named Mohamed Sadeek Odeh?

  21   A.  There was a number of people that were compared initially,

  22   and if I could just refer back to my notes.

  23            The name again, sir?

  24   Q.  Mohamed Sadeek Odeh, O-D-E-H?

  25   A.  Yes.


   1   Q.  And how about Mohamed Rashid Daoud Al-'Owhali?

   2            Agent, may I make this suggestion.  Not agent.  May I

   3   make this suggestion?  Would you just simply read to the jury

   4   the names of the individuals whose fingerprints you

   5   identified -- examined and compared.

   6   A.  Okay.  This particular report states that there were six

   7   latent fingerprints and one latent palm print developed on a

   8   torn piece of paper, but the paragraph I think you are

   9   concerned about is in this report I have identified five

  10   latent fingerprints and one latent palm print as Salim.

  11            The next paragraph reads:  "The remaining latent

  12   fingerprints, which would be one, are not the fingerprints of

  13   Salim, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh, Mohamed

  14   al'-Owhali, Wadih El Hage, Waleh Kahn Amen Sha.

  15   Q.  So there are fingerprints that are on that document that

  16   are none of those people's fingerprints, correct?

  17   A.  That's correct.

  18   Q.  In developing fingerprints, what technique did you use in

  19   this case to develop the fingerprints for comparison purposes?

  20   Did you use a variety of techniques?

  21   A.  Yes, but primarily they were developed in Ninhydrin.

  22   Q.  That's a chemical substance?

  23   A.  Yes, sir.

  24   Q.  And just tell the jury how that works?

  25   A.  That reacts primarily with the amino acids that are


   1   present in the fingerprint residue, and it makes those latent

   2   prints visible by reacting with those amino acids and turning

   3   them like a purplish color.

   4   Q.  We have heard testimony in this case from evidence

   5   recovery agents who talk about Crazy Gluing items for

   6   fingerprints.  Do you know what I'm talking about, a Crazy

   7   Glue technique for fingerprint development?

   8   A.  Super Glue.

   9   Q.  Super Glue, sorry.

  10   A.  Yes.

  11   Q.  Super Glue, Crazy Glue, what are they talking about?

  12   A.  What they are talking about is taking Super Glue and

  13   heating it, and what it does, it forms a gas.  And what that

  14   gas does is it reforms on any moisture that may be on a

  15   particular item that you want to examine for latent prints.

  16   And what it does is it attaches itself to that moisture and it

  17   forms a permanent reproduction of that latent print, but yet

  18   it's in Super Glue, so it goes from a liquid to a gas and then

  19   it forms back to a solid on the item.

  20   Q.  Was that technique performed in this case?

  21   A.  Yes.

  22   Q.  On which items?

  23   A.  On the two knives, and I believe that there was a -- when

  24   I say knives, the two sharpened instruments -- the containers

  25   of the two --


   1   Q.  Two honey bear containers?

   2   A.  That's correct.  Handcuffs, radio, and I believe that

   3   there was a electrical plate that may have been Super Glued as

   4   well.

   5   Q.  And did any fingerprints of any comparative value show up

   6   as a result of those examinations?

   7   A.  Yes.  There was some on the electrical plate or electrical

   8   box cover, maybe.

   9   Q.  Did that compare to any of the prints that you were given

  10   to compare with?

  11   A.  No, sir.

  12            MR. RUHNKE:  Thank you, sir.  No more questions.

  13            MR. GARCIA:  Nothing, Judge.

  14            THE COURT:  Thank you, sir.  You may step down.

  15            (Witness excused)

  16            THE COURT:  The government may call its next witness.

  17            MR. GARCIA:  Charles Quenzer.


  19        called as a witness by the government,

  20        having been duly sworn, testified as follows:


  22   BY MR. GARCIA:

  23   Q.  Good afternoon, Mr. Quenzer.

  24   A.  Good afternoon.

  25   Q.  Do you work for the FBI?


   1   A.  Yes.  I'm employed by the Federal Bureau of Investigation.

   2   I'm assigned to the chemistry unit of the FBI laboratory.

   3   Q.  You are not a special agent?

   4   A.  I am not a special agent, no.

   5   Q.  And how long have you been with the chemistry unit at the

   6   FBI?

   7   A.  I have been employed at the chemistry unit of the Federal

   8   Bureau of Investigation since 1972 as a forensic chemist and

   9   my title is forensic chemist examiner.

  10   Q.  And what is your, briefly, educational background?

  11   A.  In 1972 I graduated from St. John's University right in

  12   New York with a bachelor of science degree in toxicology.

  13   That program was one of the earlier programs in the United

  14   States offering a bachelor of science degree in that

  15   specialized science.

  16            In acquiring that degree, I had laboratory experience

  17   in the medical examiner facilities out in Nassau County as

  18   well as Suffolk County, and then upon completing the degree I

  19   went directly to work for the Federal Bureau of Investigation.

  20   Q.  And is it fair to say, without getting into the details,

  21   that you receive periodic training in your field with the FBI?

  22   A.  Yes.  The Federal Bureau of Investigation provides

  23   training for its examiners.  In 1994 was a two-week course,

  24   and as recent as last May I went to an evidence response team

  25   training course down in Quantico, Virginia on the proper


   1   collection and handling out at a scene when you respond.

   2   Q.  And you have been a forensic examiner, that title, since

   3   1994?

   4   A.  That is correct.

   5   Q.  And in the case involving an attack on a corrections

   6   officer, were you asked to do certain examinations?

   7   A.  Yes, I was.

   8   Q.  Can you tell us generally the type of examination you do?

   9   A.  The type of examination I conduct in the chemistry unit is

  10   varied.  We deal with the analysis of biological --

  11            THE COURT:  No.  In this particular case, what did

  12   you do?

  13            THE WITNESS:  In this particular case I was requested

  14   to look at some unknown substances that were submitted in

  15   commercial plastic containers and to try to determine what

  16   that unknown substance was.  I was also requested to look at

  17   stains on clothing items and stains on swabs.

  18   Q.  I'm going to hand you what's in evidence as Government

  19   Exhibit 4044.  Ask you to take a look at that.

  20            Are those two of the items you were asked to examine?

  21   A.  Yes.  And the way I recognize the containers are my

  22   initials on the plastic containers themselves as well as the

  23   accompanying laboratory number.

  24   Q.  And could you tell us the results of your examination of

  25   those particular items, Government Exhibit 4044?


   1   A.  These particular items, when I first was given them,

   2   contained an orange-brown substance.  I removed the

   3   orange-brown substance to conduct an analysis and returned the

   4   containers to the latent fingerprint examiner so he could

   5   conduct exams on the containers themselves.

   6            On that orange substance, immediately upon opening

   7   the containers and withdrawing the substance, you could tell

   8   that it was some form of a hot sauce just by its aroma and its

   9   consistency and its looks.  I then conducted chemical

  10   examinations on the particular liquid hot sauce to look for

  11   the chemicals that are active in hot sauce that give it its

  12   adjective "hot."

  13            There are chemicals that are associated with peppers,

  14   hot peppers, and I identified two of the chemicals that are

  15   present in hot peppers along with some acidic acid, which is a

  16   component of vinegar.  Vinegar is also present in hot sauce

  17   and lends itself to giving it some of its aroma.

  18            So by identifying three of those chemicals and the

  19   physical observations, I was able to say that the substance in

  20   each of these plastic containers was consistent with a common

  21   hot sauce.

  22            MR. RUHNKE:  Can I just ask which exhibit he is

  23   reading?

  24   Q.  I'm sorry, if you can read the number of the exhibit that

  25   you have there.


   1            I believe it's 4044.  Yes.  4044.

   2            MR. RUHNKE:  Thank you.

   3   Q.  And you mentioned three chemicals you were able to

   4   identify that were consistent with a common hot sauce?

   5   A.  Yes.

   6   Q.  Could you tell us the names?

   7   A.  The three chemicals that are present in hot sauces, all

   8   common commercial brands, are capsaicin and dehydrocapsaicin.

   9   These are two chemicals that are present in extracts of pepper

  10   from the plant capsicum.  And the third chemical is acidic

  11   acid.  Acidic acid is a component of vinegar.  And those are

  12   the three chemicals that I identified in the orange liquids

  13   that allowed me to make a statement that it was consistent

  14   with a common hot sauce.

  15   Q.  You are saying that it was -- I'm sorry, withdrawn.

  16            Capsaicin, C-A-P-S-A-C-I-N?

  17   A.  No, C-A-P-S-A-I-C-I-N.

  18   Q.  And you are saying that it was consistent with

  19   commercially available hot sauce?

  20   A.  Yes.

  21   Q.  How did you make that comparison?

  22   A.  We have commercially purchased hot sauces in the

  23   laboratory.  I myself bought some, brought some from home,

  24   commercial brands, and I was able to run comparisons and

  25   analyses just like I explained for these chemical components


   1   on the commercial brands, and indeed the commercial brands

   2   have the three chemical components I name, capsaicin,

   3   dehydrocapsaicin, and acidic acid.

   4   Q.  And did you also compare to a commercially available hot

   5   sauce called Keffe's K-E-F-F-E's?

   6   A.  The brand alluded to was not available in Washington, D.C.

   7   and it was submitted by the case agent as an item control that

   8   was from the prison.

   9            Keffe's Louisiana Hot Sauce was submitted for

  10   comparison also, and that, as a control, was consistent with

  11   all the other commercial brands of hot sauces, including what

  12   was in these two plastic containers.

  13   Q.  And I'm going to hand you three other -- two exhibits,

  14   three bottles, 4043 and 4045, which also are in evidence.  Did

  15   you also receive those bottles in the lab?

  16   A.  Yes.  I received them from, not directly, but from Charles

  17   Kubilus, who received them directly.

  18   Q.  Could you tell us, did you do any chemical analysis on

  19   those items?

  20   A.  These three bottles -- and again, my initials on the

  21   bottom is how I recognize them, as well as the laboratory

  22   number -- these three bottles had no chemical examinations

  23   conducted on the contents that were within them.  Two of the

  24   bottles were essentially empty.  The third bottle contained a

  25   white powder, which of course a white powder is not consistent


   1   with hot sauce.  The white powder, upon being removed and

   2   stored, had the physical consistency from observation as well

   3   as an aroma for just plain detergent.  But again, no chemical

   4   exam was conducted.

   5            The other small amount of liquid that was in another

   6   container had the physical appearance and consistency of just

   7   about 20 drops of water, simple water.  And the third bottle

   8   that was essentially empty had an orange-brown crusty residue

   9   that I removed into a small vial.

  10            Again, the reason all these contents were removed was

  11   to give the containers back to the latent print examiner.

  12            That third item I mentioned, the orange-brown crusty

  13   substance, had a consistency in all as well as an aroma that

  14   was similar to a hot sauce, and could be a hot sauce, but

  15   again, no chemical exams were conducted on those contents.

  16   Q.  I'm going to show you what is in evidence as 4310.  Could

  17   you just explain for us what that is?

  18   A.  Number 4310, this particular exhibit was initially

  19   received by a DNA examiner as a white swab, a gauze swab about

  20   an inch square.  He forwarded it to me in the chemistry unit

  21   to analyze the yellow stain that was upon that piece of white

  22   gauze.

  23            I chemically analyzed the stain on that gauze and

  24   determined that the two chemical components capsaicin and

  25   dehydrocapsaicin were identified in that stain and the stain


   1   could indeed could originate from a hot sauce source.

   2            These other gauze items on the right are examples of

   3   what is called controls.  I made them myself by spotting

   4   commercial brands of hot sauce onto the gauze, allowing it to

   5   dry, because the gauze specimen, Exhibit 4044, Exhibit 4310,

   6   the gauze specimen was dry when I received it.  You can see

   7   the yellow stain.  And the difference in intensity is the

   8   difference in the amounts of hot sauce.  The least intense

   9   color is from two drops only of hot sauce.  The most intense

  10   is from up to six drops.

  11            And all of these gauze samples were analyzed and all

  12   they essentially did was show different responses in terms of

  13   how strong a stain was.  And the stain on the submitted white

  14   piece of gauze again was consistent with and could originate

  15   from hot sauce stain such as the Keefe's Louisiana Hot Sauce

  16   brand.

  17   Q.  You mentioned you found two chemicals on the swab that was

  18   submitted?

  19   A.  Two chemicals were identified on the swab, capsaicin and

  20   dehydrocapsaicin.

  21   Q.  You didn't identify acidic acid; is that right?

  22   A.  Acidic acid was not identified on the stain, and the

  23   reason it was not identified is that, as I stated, these

  24   stains are dry.  Acidic acid is a liquid that when a substance

  25   goes dry, it's not going to be around anymore than water for


   1   that.  You don't perform a test for water on a dry specimen.

   2   You don't perform a test for acidic acid on a dry specimen.

   3            MR. GARCIA:  I'm going to move into a final area that

   4   would require a little setting up, if this is a convenient

   5   time to break.

   6            THE COURT:  Okay.  We will take our mid afternoon

   7   recess at this point.

   8            MR. GARCIA:  Thank you, Judge.

   9            MR. RUHNKE:  During the break, if it's convenient

  10   with your Honor, can we see you on an ex parte witness matter.

  11            THE COURT:  Yes.

  12            (Pages 7985 through 7987 filed under seal)

  13            (Continued on next page)














   1            (In open court)

   2            THE COURT:  Can I see a honey bear jar?

   3            MR. GARCIA:  This is 4044.

   4            THE COURT:  Do we have an exhibit as a Keffe's

   5   Louisiana Hot Sauce?

   6            MR. GARCIA:  Yes.

   7            THE COURT:  Can I see that also?

   8            MR. GARCIA:  Yes.  I think it's 4314, Judge.

   9            THE COURT:  Okay.  Thanks.

  10            (Jury enters)

  11            THE COURT:  Very well, you may continue.

  12            MR. GARCIA:  Thank you, Judge.

  13   DIRECT EXAMINATION (continued)

  14   BY MR. GARCIA:

  15   Q.  Mr. Quenzer, did there also come a time when you received

  16   in your lab items of clothing to perform similar tests on?

  17   A.  Yes.  I directly received from the field office a boxful

  18   of clothing, 18 bags, each bag containing an item of clothing.

  19   Q.  I'm going to show you Government Exhibit 4302, which is

  20   already in evidence, and ask you if that item was one of the

  21   items of clothing you received.

  22   A.  Yes, this was one of the items of clothing I received.

  23   Q.  Did you perform tests, chemical analysis on that item?

  24   A.  Yes, I did test all the items, including this one.

  25   Q.  Could you show us on 4302 where exactly you tested that


   1   particular item of clothing?

   2   A.  The item of clothing, each item of clothing, was tested in

   3   two places, one place where I saw a visible stain and the

   4   other place where I did not see a stain.  So there would be

   5   two cuttings on each of these items.

   6   Q.  And if we could put up as an exhibit 4302B-P, and if at

   7   the same time, Mr. Quenzer, you could show us the actual area

   8   you did the cuttings.

   9   A.  Q102 -- that's the laboratory designation -- is the right

  10   sleeve area where you can see some yellow stains visible in

  11   the photograph.  This cut area represents approximately a

  12   one-inch square of an area of that yellow stain of the sleeve

  13   that you are looking at.  The second cut area is very close to

  14   the yellow stained area, but it's in an area that is white and

  15   there is no yellow stain.

  16            In other words, this area, the second cutting, should

  17   not contain two chemical components that are present in

  18   capsaicin, which is present in hot sauce.  So we call that in

  19   the laboratory a negative control, or a blank may be another

  20   term.  In other words, one section of sleeve has the yellow

  21   stain I cut and analyzed for hot sauce.  The second area of

  22   the sleeve has no visible stain and it should have no hot

  23   sauce ingredients.

  24   Q.  What were the results of your examination for that

  25   particular item 4302?


   1   A.  The conclusions I came to after chemically analyzing the

   2   yellow area was that two chemical components capsaicin and

   3   dehydrocapsaicin, which are present in capsaicin -- which is

   4   present in hot sauce, were identified in this right sleeve

   5   area.  Neither of those two components were identified in the

   6   area where there was no stain.  To me, that means that the

   7   yellow area, the yellowish-type stain could have as an origin

   8   hot sauce.  Nothing more complicated than that.

   9   Q.  I'll take that back and show you 4303, which is also in

  10   evidence, and I ask you, was that also one of the items that

  11   you examined in the lab and performed similar tests on?

  12   A.  Yes, this item's designation would be Q105 from the

  13   laboratory.

  14            MR. GARCIA:  And if we could first see 4303P, the

  15   photograph that is in evidence, and now 4303A-P.

  16   Q.  Mr. Quenzer, the area in photograph 4303A-P, is that the

  17   area you performed your tests on, the general area?

  18   A.  Yes.  The area where you can see the off white stains is

  19   the area that I visibly was testing for the presence of hot

  20   sauce components.  There is still some of the stain present,

  21   as you can see from the photograph, and also on the jacket.

  22   It could be re-tested by any other lab because there is still

  23   stain left.

  24            The area, the second cutting, is right below that

  25   area where there is no visible stain.  That area should not


   1   contain the components of hot sauce, capsaicin and

   2   dehydrocapsaicin, again to reiterate, and again, indeed it

   3   does not.  That area that does not have the stain again we

   4   call a negative control.

   5            The area where the stain was visible, I identified

   6   the two chemical components that are present in hot sauce and

   7   to me it allows a conclusion that that stain could have its

   8   source as hot sauce.

   9   Q.  Thank you, Mr. Quenzer.  I'm going to hand up to you one

  10   final exhibit and I will take the jacket back.

  11            This is Government Exhibit 4057, already in evidence.

  12   Is that an item that you received also in the laboratory to

  13   perform similar tests on?

  14   A.  I received this item to test again for the presence of hot

  15   sauce on stains, and it came in later than the other 18 bags

  16   of clothing so it has another laboratory number, but its Q

  17   designation is 107, 107.

  18   Q.  Could you tell us what you did with that item of clothing?

  19   A.  On this particular item, pants, gray pants, there were

  20   quite a few stains that appeared to me, as a chemist, to be

  21   appeared to be blood.  But I don't identify blood or anything

  22   like that, that's the property of another unit, our DNA unit.

  23   However, they appear to me to be blood, and there also appear

  24   to be some hot sauce stains lower down on the left leg.

  25            On this particular item, I followed the same


   1   procedure.  As soon as I locate the lower left leg, we'll be

   2   in fine shape.

   3            I'm going to -- some of these other cuttings that you

   4   will see here were taken by a DNA examiner, not me.  You will

   5   see two cuttings on the lower left leg, one right here by my

   6   left hand and then the other a little further higher up.  It's

   7   on the left leg.  They each were cut out and analyzed.  One

   8   had the visible stain, again located by nothing more than

   9   sight, looked like a food stain, and the chemical components

  10   of hot sauce were identified in this stained area.

  11            The other area did not have the stain, was just an

  12   area of gray pants where there was no ostensible blood stain

  13   or any other kind of stain.  It represents our negative

  14   control.  That's the area right by my left hand.  That was cut

  15   out, and the chemical components present in hot sauce were not

  16   there.  Again, that represents the negative control and that's

  17   the way it should be.  They shouldn't be where you don't see

  18   the stain, but they are where you do see a stain.

  19            On this particular item, I also took two other stains

  20   and it's the only item where this was done, and the reason

  21   that two other stains were taken was that this item appeared

  22   to me to have many areas covered with blood and I didn't want

  23   the blood to perhaps be masking a small hot sauce stain.  So I

  24   went into the bloody area and I recovered two more cuttings,

  25   one from the top of the pants and one from the right thigh


   1   area on his other leg.

   2            These areas appear to me, again, to be bloody areas

   3   and I was concerned with the masking effect.  In other words,

   4   a small hot sauce stain might not be visible if it is covered

   5   by a lot of blood.  So I conducted chemical tests on these

   6   other two areas, also.  Those tests were negative for the

   7   chemical components of hot sauce and hot sauce stains were not

   8   identified on either of those two cuttings.

   9            So the only place on this pair of pants where the hot

  10   sauce components were identified was in the cutting taken on

  11   the lower left leg in an area that appears to be hot sauce

  12   stains and consistent with all the other type stains on all

  13   the other type clothing.  There are still stains present on

  14   the leg that represent to me, visibly anyway, the consistency

  15   of a hot sauce stain.

  16   Q.  So just so we're clear, there were other stains on the

  17   garment that visibly look like hot sauce to you that you did

  18   not test?

  19   A.  That is correct.

  20            MR. GARCIA:  Thank you.  I have nothing further.

  21            THE COURT:  Cross-examination.


  23   BY MR. RUHNKE:

  24   Q.  Can we just hold on to that exhibit that you have right

  25   now.  Don't put it away, please.


   1            If you would not mind standing up and holding those

   2   up and just demonstrating to the jury where on that garment

   3   you located -- first of all, I'll start with asking you, where

   4   did you make cuttings that were analyzed as consistent with

   5   hot sauce?

   6   A.  The lower left leg area, you can see two cuttings, one

   7   right by my hand here and one right by my hand here.  This is

   8   the negative control.  There was no stain visible, no hot

   9   sauce components present.  This one represented an area where

  10   there was a stain.  It was cut out, analyzed, and hot sauce

  11   components were identified.

  12            You can see a stain here.  It's probably difficult to

  13   see, but right here.

  14   Q.  Would you show it to the jury, please, Mr. Quenzer.

  15   A.  It's an off-white-type stain.  And there's stains here,

  16   right here.

  17   Q.  More consisting the hot sauce?

  18   A.  Visibly consistent with hot sauce, yes.  But a stain just

  19   like this was tested, that would be the one that was right

  20   here, and it did contain the chemical components of capsicum.

  21   Q.  Were there any other areas on that garment that either

  22   tested for hot sauce or appeared to have stains consistent

  23   with a visual examination that it was hot sauce?

  24   A.  No.  I did take two other cuttings, as I explained, but

  25   you couldn't tell that they were consistent with hot sauce


   1   because of the blood in the area.

   2   Q.  So the answer is the only ones were the ones you

   3   discussed, correct?

   4   A.  Yes.

   5   Q.  Would you put that away, please.

   6            You testified that you received 18 bags of clothing,

   7   is that accurate?

   8   A.  Yes, sir.

   9   Q.  Were those 18 essentially 18 separate items of clothing

  10   each individually bagged?

  11   A.  Yes, they were.

  12   Q.  Did each item of clothing get its own Q number?

  13   A.  Yes, it did, sir.

  14   Q.  And if it's not perfectly obvious, the FBI uses a Q to

  15   designate a questioned item and a K to designate a known item;

  16   is that correct?

  17   A.  Yes, a known or a control item.

  18   Q.  So if something is a K1, that's a known quantity; if

  19   something is a Q item, it's something that is questioned and

  20   needs to be analyzed, is that accurate?

  21   A.  Yes.

  22   Q.  Do you have a list in front of you of the Q numbers that

  23   you examined for evidence of hot sauce?

  24   A.  Would you please repeat the question, sir?

  25   Q.  Do you have with you a listing of the clothing, the Q


   1   items that you examined for hot sauce?

   2   A.  Yes.  They were Q88 through Q105 and Q107, and the Q

   3   listings in the laboratory start with Q1.  So this represents,

   4   to me at least, 107 specimens that different examiners may

   5   have been involved with.

   6   Q.  Right.  And a Q1 could have been a piece of paper,

   7   anything at all?

   8   A.  That's correct.

   9   Q.  Correct?

  10   A.  Yes.

  11   Q.  But the clothing was 88 through 105.  And do you have in

  12   your --

  13   A.  And Q107.

  14   Q.  Do you have in your notes a description of what each of

  15   those items was?

  16   A.  Yes.

  17   Q.  Would you read that to the jury, item by item, Q88?

  18   A.  I would have to refer to my notes for that.

  19   Q.  That's fine.  I don't expect you to have it in your

  20   memory.

  21   A.  On my inventory, Q88 -- was that the Q in question, sir?

  22   Q.  Yes.  You said they started with Q88?

  23   A.  Right.  Q88 was inventoried as a brown bag labeled Officer

  24   K. Chaplan, 11/1/2000, stained jumpsuit, blue.

  25   Q.  You know what, I know I asked that question, but I realize


   1   this is going to take some time and I think we can probably

   2   resolve it without having you do that.

   3            Let me ask you this.  Did you examine or look at any

   4   items in the Q40 series or the Q50 series or the Q60 series?

   5   A.  The Q42 specimen was a white piece of gauze with a yellow

   6   stain, and I analyzed one half of that stain for hot sauce

   7   components.

   8   Q.  Maybe I should do it this way.  You examined 18 items of

   9   clothing which you said are the Q88 through 105 and 107.  Did

  10   you examine other Q numbers, and what Q numbers did you

  11   examine?

  12   A.  Well, if I understand your question, sir, it would start

  13   with Q23 and Q24, which are the two honey bear containers that

  14   had the orange-brown substance in it that was found to be

  15   consistent with hot sauce.

  16   Q.  I think for our purposes if you just give us our Q numbers

  17   we can match them up later on.  I just want to know what you

  18   examined by Q number.

  19   A.  What I examined was comprised in five laboratory

  20   submissions so it's spread out, but it would start with Q23

  21   and Q24, Q42, Q47, Q107, Q88 through Q105, and there was an

  22   inventory of the items Q85, Q86 and Q87, but no chemical exams

  23   performed.  So there is only an inventory of those items.

  24   Q.  And those are all the items that you examined and the

  25   items you found hot sauce on are the ones you have testified


   1   about here in court today; is that correct?

   2   A.  That is correct.

   3            MR. RUHNKE:  Thank you, sir.  I have no more

   4   questions.

   5            THE COURT:  Thank you, sir. you may step down.

   6            (Witness excused)

   7            THE COURT:  Government may call its next witness.

   8            MR. FITZGERALD:  Judge, may we have a moment?

   9            (Pause)

  10            MR. FITZGERALD:  Judge, may we approach together for

  11   a moment?

  12            (Discussion at sidebar off the record)

  13            THE COURT:  Ladies and gentlemen, I am told that it

  14   would be more efficient if we adjourned, so we will do that,

  15   until Monday.

  16            Have a good weekend.  Please remember what I said

  17   about not listening or reading or watching anything about this

  18   case or related to the case.

  19            We will not sit on July 4th.  I'm not sure whether we

  20   will be finished before then, but you should know that we will

  21   not sit on July 4th.  You have your independence on that day.

  22   If you are deliberating at that time, you will sit on the 3rd

  23   and the 5th.

  24            Have a good weekend.

  25            THE COURT:  And we are adjourned until 4:30 for the


   1   motion to quash the subpoena of the psychiatrist.

   2            Anything else that we should take up before the jury

   3   comes in on Monday?

   4            MR. FITZGERALD:  Your Honor, we will be in touch with

   5   Mr. Ruhnke about the BOP matter.  Nothing at the moment.

   6            (Adjourned to 9:30 a.m. on June 25, 2001)





















   1                        INDEX OF EXAMINATION

   2   Witness                    D      X      RD     RX

   3   ROBERT PARRISH..........7835   7843    7853

   4   WILFRED E. BAPTISTE.....7855   7858

   5   DAVID STONE.............7859   7863    7868

   6   LEONARD W. HATTON.......7869   7905    7917    7918

   7   JOSEPH D. FOELSCH.......7918

   8   JOSEPH FOELSCH..........7943   7955    7963    7963

   9   CHARLES KUBILUS.........7964   7969

  10   CHARLES F. QUENZER......7976   7993

  11                        GOVERNMENT EXHIBITS

  12   Exhibit No.                                     Received

  13    4118 .......................................7863

  14    4003 to 4006, 4007, 4007A, 4008 to 4021,

  15    4022A, 4022B, 4022C, 4023, 4024, 4025, 4027,

  16    4028, 4029, 4032, 4033, 4034, 4035, 4036, 4037,

  17    4038 and 4039 ..............................7872

  18    4058 .......................................7874

  19    4078 .......................................7876

  20    4064, 4075 and 4079 ........................7877

  21    4029 and 4093 ..............................7879

  22    4062 .......................................7880

  23    4042 .......................................7881

  24    4044 .......................................7882

  25    4043 and 4087 ..............................7884


   1    4080 through 4086 ..........................7886

   2    4048 .......................................7889

   3    4090 .......................................7889

   4    4314 .......................................7890

   5    4091 .......................................7891

   6    4089 .......................................7892

   7    4311 .......................................7892

   8    4042 and 4094 ..............................7894

   9    4045 .......................................7895

  10    4310 .......................................7898

  11    4000P ......................................7900

  12    4000-E .....................................7904

  13    4050 through 4055 ..........................7921

  14    4050-A .....................................7943

  15    4066, 4051-A-T, 4051-B-T, 4051-A, 4051-B,

  16    4052-A-T, 4052-B-T, 4052-A, 4052-B, 4053-A-T,

  17    4053-A, 4054-A-T, 4054-B-T, 4054-A

  18    and 4054-B .................................7946

  19    4099, 4100, 4101, 4102 and 4103 ............7952

  20    4119 .......................................7955

  21    4041 .......................................7969





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