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
7821
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 June 21, 2001
9:55 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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7822
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
5
DAVID RUHNKE
6 DAVID STERN
Attorneys for defendant Khalfan Khamis Mohamed
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7835
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.
8 ROBERT PARRISH,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
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?
7836
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.
7837
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
7838
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
7839
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
7840
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?
7841
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
7842
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?
7843
1 A. Not that I can recall at this time.
2 MR. GARCIA: Thank you.
3 CROSS-EXAMINATION
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.
7844
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
7845
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?
7846
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.
7847
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
7848
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?
7849
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.
7850
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
7851
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.
7852
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
7853
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.
16 REDIRECT EXAMINATION
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.
7854
1 MR. GARCIA: The government calls Wilford Baptiste.
2
3 (Continued on next page)
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7855
1 WILFRED E. BAPTISTE,
2 called as a witness by the government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
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
7856
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
7857
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.
7858
1 MR. GARCIA: I have nothing further, Judge.
2 CROSS-EXAMINATION
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,
7859
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:
7860
1 DIRECT EXAMINATION
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
7861
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
7862
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.
7863
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.
24 CROSS-EXAMINATION
25 BY MR. STERN:
7864
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
7865
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
7866
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?
7867
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?
7868
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.
16 REDIRECT EXAMINATION
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.
7869
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.
5 LEONARD W. HATTON,
6 called as a witness by the government,
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
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.
7870
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
7871
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.
7872
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
7873
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
7874
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?
7875
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?
7876
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
7877
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)
7878
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?
7879
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)
7880
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.
7881
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?
7882
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
7883
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?
7884
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.
7885
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
7886
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?
7887
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?
7888
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.
7889
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
7890
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)
17
18
19
20
21
22
23
24
25
7891
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.
7892
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?
7893
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.
7894
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
7895
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
7896
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
7897
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
7898
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
7899
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.
7900
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.
7901
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
7902
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,
7903
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.
7904
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
7905
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.
21 CROSS-EXAMINATION
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?
7906
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
7907
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.
7908
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
7909
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.
7910
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.
7911
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?
7912
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?
7913
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
7914
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
7915
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.
7916
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?
7917
1 MR. GARCIA: Very briefly. If we could have 4014,
2 Government's Exhibit, put back up on the screen.
3 REDIRECT EXAMINATION
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.
7918
1 RECROSS-EXAMINATION
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.
12 JOSEPH D. FOELSCH, JR.,
13 called as a witness by the government,
14 having been duly sworn, testified as follows:
15 DIRECT EXAMINATION
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
7919
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
7920
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.
7921
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)
13
14
15
16
17
18
19
20
21
22
23
24
25
7922
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
7923
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?
7924
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
7925
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
7926
1 40-minute report from