26 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 68 of the trial, June 25, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
8002 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 25, 2001 9:40 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 8003 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 DAVID RUHNKE 7 DAVID STERN Attorneys for defendant Khalfan Khamis Mohamed 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8004 1 (Trial resumed) 2 (Jury not present) 3 MR. GARCIA: Judge, the last witness on Thursday was 4 Charles Quenzer, the chemist. At the end of his cross there 5 is some confusion in the record as to Q numbers he tested 6 versus items that were actually introduced as evidence in the 7 courtroom. It is the impression from reading the transcript, 8 at least it is a fair reading, that the only items that tested 9 positive for hot sauce, to use the shorthand term, were the 10 ones that were seen in the courtroom here, which in fact is 11 not the case. There were a total of 11 items of clothing that 12 tested positive for hot sauce. So the government wants to 13 bring him back, either on redirect or recall, whichever is 14 easiest. He is here this morning to take the stand and clear 15 up that there were other items. 16 THE COURT: Any problem? 17 MR. RUHNKE: No problem as long as the questioning is 18 not set up to make it look like I was misleading the witness. 19 THE COURT: Just ask him. 20 MR. GARCIA: And I may lead him a little. 21 THE COURT: All right. 22 MR. RUHNKE: I gather our requests to charge, I 23 recall that any additional requests to charge were due today 24 in the penalty phase. Frankly, I have not had a chance to 25 even look at it. I don't think there is going to be much 8005 1 controversy on this, but I would like an opportunity to see 2 what the government submits and maybe submit something later 3 in the week, if that's all right. 4 THE COURT: The jury has the Al-'Owhali death penalty 5 charge. I think they physically have that. One thing that we 6 should all wonder is whether one should go through it again, 7 and I am leaning slightly in favor of that, or whether one 8 should just say the law is the same and these are the changes. 9 It is easy to do it either way, but give it some thought. 10 MR. RUHNKE: Our preference is that you instruct the 11 jury fully. 12 THE COURT: So that the charge here would be a 13 self-contained document. I am leaning in that direction. 14 Anybody have a contrary view? 15 MR. FITZGERALD: No. We are leaning to the 16 self-contained new charge. 17 THE COURT: We will do it that way. 18 In terms of timing, I got a message that there is a 19 possibility that the defense may rest on Thursday. 20 MR. RUHNKE: Yes. We are trying to time this out and 21 we think that we should be done with our presentation by 22 Thursday. Depending on rebuttal that the government may or 23 may not bring forward, I see no reason why we shouldn't be 24 summing up to the jury by Monday, a week from today. 25 THE COURT: In any event we will not sit on Friday? 8006 1 MR. RUHNKE: We very much prefer not to, your Honor. 2 THE COURT: All right. 3 MR. FITZGERALD: Just on scheduling, your Honor, the 4 government as always is uncertain about the length of 5 rebuttal. As we noted, we are saving rebuttal to the 6 mitigating factors till later because we don't know what all 7 the proof will be. 8 THE COURT: The only question is whether I should 9 alert the jury to the fact that we might sit on Friday, and I 10 will not do that. 11 Mr. Ruhnke, you wrote concerning the MCC's refusal to 12 allow Mr. Mohamed's in-laws to visit with him, and I checked 13 with Miss Raia, who says that that is a policy in the SAMS 14 themselves, not specially invoked with respect to Mr. Mohamed, 15 and that the MCC sees no reason why there should be a 16 deviation from its uniform rules. Nor do I. 17 MR. RUHNKE: Your Honor, this is a one-time ever 18 deviation that we are asking for with regard to the specific 19 SAM that applies to Mr. Mohamed, based on unique 20 circumstances, unusual circumstances. His family lives 21 thousands of miles from here and we are asking for one 22 opportunity for him to meet not only with his immediate family 23 as defined by the SAM but also the husbands and wives of his 24 siblings. These are people he knows, and, frankly, may never 25 see again. 8007 1 THE COURT: Does the government have any view on the 2 matter? 3 MR. FITZGERALD: We see no reason to vary from the 4 SAMS. We have no authority to vary from the SAMS and don't 5 see a reason to. 6 THE COURT: They are going to be witnesses? 7 MR. RUHNKE: Yes, your Honor. 8 THE COURT: They came here for purposes other than 9 visiting with Mr. Mohamed. 10 MR. RUHNKE: That is right. 11 THE COURT: Does the government have any objection if 12 the day they testify -- and the question really should -- I 13 would like some marshal input on that also -- they meet 14 briefly with him in the cell here? 15 MR. FITZGERALD: May I have a moment. 16 Your Honor, we do have an issue that we may need to 17 see the court about ex parte. 18 THE COURT: Relevant to what we are discussing now? 19 MR. FITZGERALD: Yes. 20 THE COURT: I thought that might be a way of not 21 deviating for many SAMS but allowing relatives to say goodbye 22 to each other. I will see you in the robing room. 23 (Continued on next page) 24 25 8009 1 (Page 8008 sealed) 2 (In open court; not present) 3 MR. FITZGERALD: Your Honor, since it is clear that 4 the government will rest today on its main case for this 5 phase, there is one more stipulation matter that we need to 6 work out with Mr. Ruhnke that requires the court's 7 involvement, so we can deal with that in one of the breaks. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8010 1 (Jury present) 2 THE COURT: The government may call its next witness. 3 MR. GARCIA: The government recalls Charles Quenzer. 4 CHARLES QUENZER, recalled. 5 THE COURT: Mr. Quenzer, the court reminds you you 6 are still under oath. You may be seated. 7 THE WITNESS: Thank you, your Honor. 8 DIRECT EXAMINATION 9 BY MR. GARCIA: 10 Q. Good morning, Mr. Quenzer. 11 A. Good morning. 12 Q. Mr. Quenzer, I wanted to clear something up from your 13 testimony last Thursday. You tested a number of items of 14 clothing for the presence of chemicals consistent with hot 15 sauce; is that correct? 16 A. That is correct. 17 Q. Can you tell us the total number of items of clothing that 18 you tested for that? 19 A. The total number of items of clothing were 19. Eighteen 20 were in one laboratory submission, the other one was in 21 another laboratory submission. 22 Q. Of those 18 plus 1, the 19 items of clothing, how many in 23 fact tested positive for a chemical compounds commonly found 24 in hot sauce? 25 A. Of the total 19 items, 11 items tested positive for 8011 1 capsaicin and dyhydrocapsaicin, which are the two capsaicins 2 present in compounds which are common to hot sauce. 3 Q. I would like to show you Government's Exhibits for 4 identification 4304 and 4301 and just ask you if those are two 5 of the items that you examined for the presence of hot sauce? 6 A. Yes, they are. 7 Q. Are those two of the items that tested positive for those 8 two chemicals? 9 A. Yes, both of these items tested positive for the two 10 capsaicins. 11 MR. GARCIA: I have nothing further, Judge. 12 CROSS-EXAMINATION 13 BY MR. RUHNKE: 14 Q. Mr. Quenzer, do you have your notes in front of you about 15 what you tested and the results? 16 A. Yes, I do. 17 Q. Would you bring them out, please. 18 A. Yes, sir. 19 Q. Did you test item Q48 for the presence of hot sauce? 20 A. Q48 item was not tested for the presence of hot sauce. 21 Q. Did you test item Q51 for the presence of hot sauce? 22 A. Q51 item was not tested for the presence of hot sauce. 23 Q. Q52 item tested for the presence of hot sauce or not? 24 A. The Q52 item was not tested for the presence of hot sauce. 25 Q. Q53? 8012 1 A. Was not tested for the presence of hot sauce. 2 Q. Q54? 3 A. Was not tested for the presence of hot sauce. 4 Q. Q55 through Q61? 5 A. Was not tested for the presence of hot sauce. 6 Q. Q62 and 63? 7 A. Were not tested for the presence of hot sauce. 8 Q. Who made the decision as to what items to test? 9 A. The decision as to what items to test generally comes from 10 the contributor of the items of evidence, through a request in 11 an incoming letter. 12 Q. It was not your decision, basically you were asked to test 13 certain items? 14 A. That is correct. 15 Q. And you tested the items that you were asked to test; is 16 that right? 17 A. That is correct. 18 MR. RUHNKE: Thank you. I have no more questions. 19 REDIRECT EXAMINATION 20 BY MR. GARCIA: 21 Q. You stated that was generally the case, Mr. Quenzer, that 22 the people submitting the samples to the labs would make the 23 decisions as to what would be tested? 24 A. With all laboratory specimens there is usually an incoming 25 letter from the contributor requesting certain exams regarding 8013 1 the evidence that they sent in. 2 Q. In this case did the lab itself make decisions not to test 3 certain items based on lab criteria? 4 A. The laboratory itself didn't make any decisions not to 5 test items, no. 6 Q. Was the lab asked to test certain other hot sauce bottles 7 for the presence of these chemicals? 8 A. The laboratory, we were requested to test items 85, 86 and 9 87, the containers, for latent fingerprints, and the contents 10 of the bottle. Those contents within that bottle were 11 inventoried and physically observed. As I stated before, they 12 were three of the items that were not chemically tested. 13 Q. But there was a request initially to test those items? 14 A. Yes, there was a request to test those items. 15 Q. You mentioned Q86. Is that Q86? 16 A. This is Q86. 17 Q. Is that one of the items that there was a request to test? 18 A. Yes. 19 Q. Again, that decision not to test this item, where was that 20 made? 21 A. The decision not to test that item was made by myself. It 22 wasn't a laboratory decision. 23 MR. GARCIA: Thank you. 24 MR. RUHNKE: Nothing further. 25 THE COURT: Thank you, sir. You may step down. 8014 1 (Witness excused) 2 THE COURT: The government may call its next witness. 3 MR. GARCIA: The government calls Joe Foelsch. 4 JOSEPH FOELSCH, recalled. 5 THE COURT: Mr. Foelsch, the court reminds you you 6 are still under oath. 7 DIRECT EXAMINATION continued 8 BY MR. GARCIA: 9 Q. Agent Foelsch, I will handing you what has been entered 10 into evidence as Government's Exhibit 4050. What is that 11 document that you have in front of you, 4050? 12 A. This is a document that was recovered in cell number 6 13 that I had read previously in court. 14 Q. What language is that? 15 A. English. 16 Q. Did there come a time when the investigative team made a 17 decision to submit that document for handwriting analysis? 18 A. Yes. 19 Q. The known samples of which individuals were submitted for 20 comparison with that document? 21 A. Salim and El Hage. 22 Q. Were Khalfan Mohamed's known samples submitted for 23 comparison purposes? 24 A. No. 25 Q. Why not? 8015 1 A. Looking at that and looking at the samples we had of Salim 2 and El Hage, we thought it was Salim. 3 Q. Was the handwriting analyst able to match that writing 4 with Salim? 5 A. No. 6 Q. Was it inconclusive? 7 A. Yes. 8 Q. After receiving that, did you have it tested or compared 9 to Khalfan Mohamed's known handwriting? 10 A. No. 11 Q. Why not? 12 A. We didn't believe he wrote it. 13 Q. Did you have any comparison of the Arabic documents done, 14 any of the Arabic documents seized in this case, with known 15 samples of Arabic writing? 16 A. No. 17 Q. Why was that? 18 A. We were informed there were no experts that could do that. 19 MR. GARCIA: I have nothing further. 20 CROSS-EXAMINATION 21 BY MR. RUHNKE: 22 Q. Mr. Foelsch, the exhibit we are talking about, 4050, is 23 that the one that begins we are the Muslims falsely accused or 24 words to that effect? 25 A. Yes. 8016 1 Q. Can you tell us today or can you tell us, tell the jury or 2 tell anyone where that note was recovered from? 3 A. Cell number 6. 4 Q. Cell number 6, as we have seen the photographs, there were 5 large blue containers which were themselves filled with 6 documents; is that correct? 7 A. Some were filled with documents, yes. 8 Q. Do you know whether the note came out of one of those 9 containers? 10 A. No, sir. 11 THE COURT: You do not know or it did not? 12 THE WITNESS: I do not know. 13 Q. Do you know whether the note was buried under three feet 14 of paper or sitting on top of something? 15 A. I do not know. 16 Q. Is there anyone in the FBI who does know? 17 A. Not to my knowledge. 18 MR. RUHNKE: Nothing further. 19 MR. GARCIA: Nothing, Judge. 20 THE COURT: Thank you. You may step down. 21 (Witness excused) 22 MR. FITZGERALD: The government calls Samuel 23 Baechtel, B-A-E-C-H-T-E-L. 24 (Continued on next page) 25 8017 1 FRANK SAMUEL BAECHTEL, 2 called as a witness by the government, 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. FITZGERALD: 6 Q. Sir, could you tell the jury what you do for a living. 7 A. Yes. I am a forensic examiner in DNA analysis unit number 8 1 with the FBI laboratory in Washington. 9 Q. Can you tell the jury what your educational background is. 10 A. Yes. I have a bachelor's degree in biology and chemistry, 11 a master's degree and a Ph.D in buy chemistry. 12 Q. What did you do for work prior to joining the FBI? 13 A. For a number of years I was on the faculty of a medical 14 school in Dallas, Texas, one of the University of Texas 15 medical schools. 16 Q. For how long did you reach at the medical school? 17 A. I was there between 12 and 13 years, 12 and a half years. 18 Q. When did you join the FBI? 19 A. In July of 1982. 20 Q. Tell us your experience in your first 12 years with the 21 FBI. What did you do? 22 A. For about the first 12 years I was with the FBI 23 laboratory, I was part of our laboratory's research and 24 training unit, and my responsibilities while in that unit were 25 really in two areas. Number one was the research aspect, in 8018 1 which I was developing methodology that could be used in our 2 laboratory or adapting methods from other fields so they could 3 be used in our forensic laboratory, and also exported to other 4 labs. Initially, that involved genetic typing, identification 5 of body fluid, tests, and in 1987 I became part of the 6 research team that developed the first DNA type of methods for 7 use in the forensic lab. I left the research unit at the end 8 of 1994 and joined the DNA analysis number 1 at the end of 9 that year, 1994. 10 Q. During the 12 years that you were involved with the 11 research unit and since 1995 when you have been examiner, have 12 you received specialized training while at the FBI? 13 A. Yes. Initially I went through the course that taught some 14 of the aspects of the genetic typing of what was typed at that 15 time. Since that time, additional courses in biology, 16 statistics as it applies to DNA typing, and I attend a number 17 of meetings throughout the years. 18 Q. Have you conducted research studies in the field? 19 A. Yes, sir. 20 Q. Approximately how much how many? 21 A. How many research studies? 22 Q. Yes. 23 A. I don't know the number of studies. It resulted in, I 24 believe, 41 publications in scientific literature. 25 Q. Have you taught classes over the years in DNA? 8019 1 A. Yes. While in the research and training unit, one of the 2 other responsibilities besides research was training, that is, 3 teaching not only people in our own laboratory DNA typing 4 methods but also people from laboratories around the United 5 States and other countries. Over the years it amounted to 500 6 and some students. 7 Q. Have you testified as a DNA forensic profiler in the past? 8 A. Yes, sir. 9 Q. Approximately how many times? 10 A. Forty-eight times prior to today. 11 MR. FITZGERALD: Your Honor, I would offer 12 Mr. Baechtel as an expert in forensic DNA. 13 MR. RUHNKE: Without objection. 14 THE COURT: Very well. 15 Q. Mr. Baechtel, could you briefly explain to the jury what 16 DNA is. 17 A. Yes, sir. DNA is the genetic code that is in the center 18 of our cells, the nucleus that codes, directs the manufacture 19 of what we are. Directly it codes for the production of 20 proteins, but those proteins make each one of us what we are. 21 Q. How does DNA differ from person to person? 22 A. Everyone's DNA is slightly different. There is much DNA 23 that is the same for each person. After all, we each have to 24 have two eyes, two ears, a number of features in common. But 25 there are differences in the DNA codes of each of us, unless 8020 1 we have an identical twin. An identical twin will have the 2 same DNA code. 3 Q. How can the differences in DNA from one person to another 4 be detected? 5 A. The methods that we use in the forensic laboratory detect 6 differences at 13 different locations in a person's DNA, and 7 these differences make themselves known to us as differences 8 in lengths of pieces of DNA at those specific locations. 9 Q. Can you perform DNA testing on dry body fluid stains? 10 A. Yes, sir. That is in fact the preferred starting 11 material. 12 Q. What else can you perform DNA testing on besides dry body 13 fluid stains? 14 A. Any piece of biological tissue that contains cells that 15 have nuclei are suitable. That would include cells from the 16 inside of the mouth that you find in saliva, cells that rub 17 off your forehead onto a baseball cap that you are wearing, 18 cells that rub off into the back of your shirt that you have 19 been wearing all day. Really, any biological material is 20 suitable target for DNA typing. 21 Q. How are DNA profiles applied in the forensic context such 22 as examining items from a crime scene? 23 A. The DNA typing in the forensic area is a comparison. You 24 are probably familiar with comparisons that the ballistics 25 laboratory does. If they want to know that a particular 8021 1 bullet could have been fired from a certain weapon, they 2 compare markings on that bullet with the ability of that 3 weapon to put those markings on that bullet. So it's a 4 comparison. DNA typing is exactly the same. We develop DNA 5 profiles from evidence items, from blood and body fluid stains 6 left on evidence items. We develop those DNA profiles, and we 7 compare those profiles to DNA recovered from samples taken 8 from known individuals, who may or may not have deposited that 9 evidence. 10 Q. If you find a DNA profile from a particular item matches 11 the DNA from a known contributor, someone who has provided 12 blood or some other sample, and you find what is called a 13 match, what do you then? 14 A. Just to determine that DNA profiles from an individual 15 match the evidence is only half the job. The second half of 16 that job is to determine how common or how rare that DNA 17 profile is. After all, we want to know whether every other 18 person on the street might be carrying the DNA profile that we 19 found in the evidence, would it be every hundredth person, 20 every thousandth. So it is an evaluation of how common or 21 rare the DNA profiles in the evidence are. 22 Q. What level of certainty does the FBI lab state that a 23 particular amount of DNA or particular DNA was contributed by 24 a given person? 25 A. When we calculate how common or rare a profile is, we look 8022 1 at that number that we obtain, and if a DNA profile found in 2 the evidence that has matched someone is more rare than 1 in 3 260 billion -- that's with a B -- billion persons, then we or 4 I would conclude that that individual was the contributor of 5 that body fluid or DNA sample. 6 Q. At the other end of the scale can you also exclude a 7 person as a contributor of DNA? 8 A. Yes, yes. We do that often. 9 Q. If you exclude the person has not providing the DNA which 10 matches a sample, how certain is that? 11 A. That's absolute. There is no probability estimate 12 involved in that. 13 Q. Besides coming to the conclusion that a person did provide 14 the DNA that is contained in a sample and excluding that 15 person, what other results can you reach? 16 A. There is a third category that we sometimes confront, 17 other than excluding someone or matching someone, and that is 18 when the results of the analysis are not clear or don't permit 19 me to reach a conclusion of match or exclusion, and then I 20 will say that information is inconclusive for that particular 21 part of the profile. 22 Q. Did you receive certain items or specimens in connection 23 with this case? 24 A. Yes, sir. 25 Q. Did you perform some DNA analysis on those items? 8023 1 A. Yes, sir. 2 Q. Did you also receive blood samples from persons known as 3 Louis Pepe, Khalfan Mohamed, and Mamdouh Salim? 4 A. Yes, sir. 5 MR. FITZGERALD: Your Honor, at this time I would 6 read a stipulation, which is Government's Exhibit 4068, which 7 states: 8 It is hereby stipulated and agreed by and between the 9 United States of America and defendant Khalfan Khamis Mohamed, 10 by and with the consent of his attorneys, that in performing 11 the forensic analysis discussed in his testimony, Samuel 12 Baechtel, the DNA expert from the FBI laboratory, used blood 13 samples obtained from Correction Officer Louis Pepe, Mamdouh 14 Salim and Khalfan Khamis Mohamed, which were taken from each 15 of the three persons, sealed, and transported to the FBI 16 laboratory. 17 I would offer that at this time. 18 THE COURT: That is received. 19 (Government Exhibit 4068 received in evidence) 20 Q. Sir, among the items tested did that include some blood 21 stains and at times swabbings from some blood stains? 22 A. Yes, sir. 23 Q. For some of those items, particularly the swabbings of the 24 blood stains, were there items for which you could not 25 identify the DNA? 8024 1 A. There were some of those items which yielded no DNA 2 capable of being typed, yes. 3 Q. For other items, did you in fact identify DNA? 4 A. Yes, sir. 5 Q. In addition to the blood stains, did you also test 6 clothing and other items? 7 A. Yes. 8 Q. Did you prepare reports concerning the results of your 9 comparisons? 10 A. Yes, sir. 11 Q. Prior to coming to court, did you assist in the 12 preparation and verification of an overlay to a chart which 13 would indicate who, what person contributed the DNA to 14 particular items that were tested for blood? 15 A. Yes, sir. 16 MR. FITZGERALD: Your Honor, I would approach the 17 witness with what has been premarked as 400O, which is a clear 18 transparent overlay on top of 4000-E, an enlargement of the 19 sketch of the 10 south unit of the MCC, which I think Agent 20 Hatton indicated where certain items were seized. 21 Q. I ask Mr. Baechtel, is this the overlay that you were 22 discussing and did you review it for accuracy? 23 A. Yes, sir. 24 MR. FITZGERALD: Your Honor, I would offer 25 Government's Exhibit 4000-O, the overlay on top of 4000-E. 8025 1 MR. RUHNKE: No objection. 2 THE COURT: Received. 3 (Government Exhibit 4000-O received in evidence) 4 Q. If we could talk about the blood stains for a moment, and 5 I will refer to the Government's Exhibit numbers and I will 6 also refer to the lab Q numbers to make sure we are on the 7 same page. If we look at blood sample number 1, which you 8 have listed as Q25, which is indicated to be in the area of 10 9 South of the MCC, outside of cell number 1, did you analyze 10 that stain and what conclusion did you reach? 11 A. Yes. That stain was analyzed and the DNA from that stain 12 was contributed by Mamdouh Salim. 13 Q. Turning to blood sample No., blood stain number 3, which 14 is Q41, which is shown on the chart 4000-O, for overlay, as 15 being opposite the office between cell number 3 and cell 16 number 4, did you analyze that blood stain and what conclusion 17 did you reach? 18 A. Yes, that also was analyzed and that DNA was contributed 19 by Louis Pepe. 20 Q. Turning to blood stain number 4, which is Q39, which is 21 located, as indicated on the chart 4000-O, in the hall between 22 cells number 4 and number 5, did you analyze that stain and 23 what result did you receive? 24 A. Yes, that also was analyzed and that DNA was contributed 25 by Khalfan Mohamed. 8026 1 Q. Turning to blood stain number 5, Q27, which is indicated 2 on 4000-O, the overlay, as being located in the doorway of 3 cell number 6, did you analyze that stain, and what conclusion 4 did you reach? 5 A. It also was analyzed, and that DNA was contributed by 6 Louis Pepe. 7 Q. Turning finally to blood stain number 8, which is Q31, 8 which is a stain inside cell 6, opposite the shower area, as 9 reflected on 4000-O, did you analyze that stain, and what 10 result did you reach? 11 A. Yes, it was analyzed, and that DNA was also contributed by 12 Louis Pepe. 13 Q. Now I am going to refer to some of the green dots that are 14 displayed, referring to various clothing items. First, could 15 you tell us the method by which you would test blood stains on 16 clothing items. 17 A. All possible blood stains go through a two-step process. 18 The first test is what we call a presumptive test procedure, 19 which rapidly let us rule out what is not blood. By that I 20 mean if we get a positive result in that test, then it means 21 to me that blood is possibly present, and if there is 22 sufficient material we will go to the second phase, which is 23 the confirmatory test procedure, which confirms, which if that 24 is positive, confirms the presence of blood. 25 Q. Did you pick certain of the stains in each item to test 8027 1 for DNA analysis? 2 A. Yes, sir. 3 Q. Turning to the green item known as Government's Exhibit 4 4058, or Q51, which is indicated on this chart as found 5 opposite cell 1, do you understand them to be a pair of sweat 6 pants? 7 A. I do. 8 Q. Can you tell us the result of your analysis of the stains 9 on that item. 10 A. Yes. Four different stains from that item were subjected 11 to DNA analysis. The first stain, there is a single 12 contributor and that contributor was Mamdouh Salim. There 13 were two stains on that garment, that pair of sweat pants, in 14 which the sole contributor was Louis Pepe. And for the fourth 15 stain it was a mixture of DNA, and by that I mean at least two 16 people contributed DNA to that particular stain area. One of 17 those individuals I could recognize as the major contributor 18 of DNA. What that means is more of that person's DNA was 19 present, and the strength of the signal that I get during the 20 analysis indicates that that was the major contributor. The 21 major contributor to that particular stain was Mamdouh Salim. 22 I can also tell you that as regards the minor contributor, 23 that Khalfan Mohamed would be excluded as the minor 24 contributor to that stain. 25 Q. Did you also test Officer Pepe's blood to see whether that 8028 1 was a contributor to that stain, that one sample? 2 A. Louis Pepe's blood was tested as part of the analysis, 3 yes, sir. 4 Q. But there were no conclusive results? 5 A. It was inconclusive with regard to the minor contributor 6 of that stain. 7 Q. The reflection on the chart here is that with regard to 8 that item, you have listed Salim and Pepe as contributors to 9 the stains on Government's Exhibit 4058, correct? 10 A. Yes, sir. 11 Q. Turning to Government's Exhibit 4075, or Q52, another pair 12 of sweat pants, which is indicated on the chart as being 13 located outside the recreation area on the right-hand side of 14 the map of 10 South, did you analyze that item, and what 15 conclusions did you reach? 16 A. Yes, sir. Four stain areas from that garment also were 17 subjected to DNA analysis. For three of those stain areas, 18 Louis Pepe is the sole contributor. For a fourth stain from 19 that item, it is once again a mixed stain in which at least 20 two people have contributed. The major contributor to that 21 DNA stain was Louis Pepe, and I can tell you that Mamdouh 22 Salim is excluded as the minor contributor. 23 Q. Again, for that item did you test the blood, or compare 24 the blood of both Louis Pepe, Khalfan Mohamed and Mamdouh 25 Salim? 8029 1 A. They were all compared, yes, sir. 2 Q. If I could display on the screen, Government's Exhibit 3 4075A-P, and if you could tell us, using 4075A-P, which of 4 those stains you did the DNA analysis on by number, and I will 5 also show you B-P, which is the other side. 6 A. If I point to this, can the jury see what I am pointing 7 to? 8 Q. No, but if you refer to the number I will have 9 Mr. Francisco point a white arrow when you describe it, and if 10 you could tell us whether that arrow is in the appropriate 11 place. 12 A. On the left leg just below the knee there is a stain 13 labeled 1B on the other side. 14 Q. Is the arrow pointing to 1B, which is where the circle is 15 around the stain? 16 A. Yes, sir. 17 Q. Are those markings added at the laboratory, just so we are 18 clear? 19 A. Yes, sir. 20 Q. OK, 1B. Where else did you test on that item? 21 A. Dash 5B, which is just right across on the other leg. 22 That area in there is what was tested. 23 Q. Is the arrow correctly indicating the 5B area, the large 24 circle? 25 A. Yes, sir. 7B, which is directly over to the other edge of 8030 1 that item, right above that arrow. 2 Q. Was the last area 9B? If we could show 4075B-P. 3 A. Dash 9, which is where the arrow points right now. 4 Q. Now I would like to talk to you about two T-shirt items. 5 One is Government's Exhibit 4078, also known as Q53, and on 6 the chart it is this green dot located outside cell number 4. 7 Did you compare that item, do DNA profiling on the blood from 8 that item, and what conclusion did you reach? 9 A. Yes, sir, DNA profiling was performed on four stains from 10 that item. Three of those stains, for three of those stains 11 Louis Pepe is the sole contributor. For the fourth stain, it 12 is, as I mentioned before, a mixture of DNA from at least two 13 people. The major contributor to that stain is Louis Pepe, 14 and I can tell you that Mamdouh Salim is excluded as a minor 15 contributor to that stain. 16 Q. Again, did you compare the DNA profiles with both Mamdouh 17 Salim, Khalfan Mohamed and Louis Pepe for that item? 18 A. Yes, sir. 19 Q. If I could display Government's Exhibit 4078P, and if you 20 could indicate to the jury those four areas that you tested, 21 compared the DNA profiles where they are located on 4078P? 22 A. Yes. Dash 1, the first stain is going to be in the lower 23 right-hand part of the shirt, lower left of the screen. 24 That's it. 25 Q. Is the arrow correctly pointing beneath that area circled? 8031 1 A. Yes, sir. 2 Q. And the next area? 3 A. Dash 5, which is up just about where the heart would be. 4 Yes. That is another area that was tested. 5 And 9 -- let's see. Let's catch 3 while we are 6 there. 3 is in the lower left-hand part of the shirt, right 7 there. 8 Q. The arrow is correctly pointing where that is? 9 A. Yes. Finally stain 9, which is -- 10 Q. If we could show the other, 4078B-P. 11 A. -- which is on the outside back of the right sleeve. 12 There you go. That's it. 13 Q. Did you also test an item known as Q54, which we will deem 14 marked as Government's Exhibit 4076 -- and if I could have one 15 moment. 16 Your Honor, there is a stipulation with counsel that 17 that is a shirt provided by the medical unit downstairs at the 18 MCC and not recovered from the floor, which is why it is not 19 on the chart. 20 MR. RUHNKE: Your Honor, if I could have a moment 21 with Mr. Fitzgerald. 22 MR. FITZGERALD: In fact it is stipulated that it was 23 cut off Mamdouh Salim, I believe. We will stipulate that it 24 is Salim's shirt, to make it simple. 25 MR. RUHNKE: That is right. 8032 1 Q. Could you tell us the results of your analysis on Q54, 2 Government's Exhibit 4076. 3 A. Yes, sir. Three stains there were subjected to DNA 4 analysis. One of those stains, the sole contributor was Louis 5 Pepe, and for two of those stains the sole contributor to each 6 was Mamdouh Salim. 7 MR. FITZGERALD: I would offer Government's Exhibit 8 4076, your Honor. 9 MR. RUHNKE: Without objection. 10 THE COURT: Received. 11 (Government Exhibit 4076 received in evidence) 12 Q. Using Government's Exhibit 4076P, could you indicate to 13 the jury which areas were tested. 14 A. Yes. 2B, which is over on the right breast of that shirt, 15 right there. Dash 4B, which is in the lower left-hand part of 16 the shirt. And finally 6, which is on the outside back of the 17 left sleeve. That is where you are pointing. 18 Q. Did you also test a number of shoes? 19 A. Yes, sir. 20 Q. Let me ask you questions about Q55, which is Government's 21 Exhibit 4064, which is a shoe reflected on the chart, 4064, 22 which is shown outside cell number 5 with a green dot, and ask 23 you what the results of your analysis were regarding 24 Government's Exhibit 4064, or Q55. 25 A. Two stain areas from that shoe were subjected to DNA 8033 1 analysis, and Louis Pepe is the sole contributor, or was the 2 sole contributor to both of those. 3 Q. If we could display 4064A-P and 4064B-P. If you could 4 just tell us which two areas were tested on Q55, what the 5 numbers areas are. 6 A. Yes. The number 1 area is rather large. As you can see, 7 it extends from the top of the shoe where the area is for the 8 moment, and if you follow the silver line you see it goes all 9 the way back across the top of the shoe and then the line 10 comes back under the sole, underneath on the bottom of the 11 shoe till it returns to the starting point up there at the 12 toe. 13 Q. So the area 1 includes the top of the shoe, side of the 14 shoe and the bottom of the shoe? 15 A. Yes. 16 Q. Area number 3, was that also tested? 17 A. Yes. As you can see, it's on the top of the toe, over on 18 the right part of the toe of that shoe. 19 Q. Approaching you with the original exhibit, Government's 20 Exhibit 4064, if you could remove that item. 21 A. Did you say remove it? 22 Q. Yes, if you could just remove it, I can give you some 23 gloves. 24 A. I've got some. 25 Q. And just show where the item, how the item was tested for 8034 1 the area 3, or 3B. 2 MR. FITZGERALD: Your Honor, I would offer 3 Government's Exhibits 4064A-P, 4064B-P and 4076-P, the 4 photographs. 5 MR. RUHNKE: No objection. 6 THE COURT: Received. 7 (Government Exhibits 4064A-P, 4064B-P and 4076-P 8 received in evidence) 9 Q. If you could just show the jury how the area 3 was tested. 10 A. Yes. Area 3, it was this part of the shoe that you see 11 missing was cut out after the identification of blood, and 12 that area of the stain was subjected to DNA analysis. 13 Q. Thank you. So obviously these pictures were taken at the 14 lab prior to the removal of that patch? 15 A. Yes, sir. 16 Q. Now if I could direct your attention to Q56 -- you can put 17 that item away, if you like -- also known as 4063, and 4063 18 would be the green dot outside the electrical closet outside 19 cell 6 on the chart. If you could tell us what the results of 20 your analysis on that item, Government's Exhibit 4063 was. 21 A. Yes. One area was subjected to DNA analysis and Louis 22 Pepe was the contributor of that DNA. 23 MR. FITZGERALD: If I could offer and display 24 Government's Exhibit 4063P, which is a photograph of the shoe. 25 MR. RUHNKE: No objection. 8035 1 Q. If you could tell us what area was tested on the shoe. 2 A. Yes, right there on the toe where you see the dark area on 3 the top of the toe item, the darkly stained area there. 4 Q. To the right of area number 1? 5 A. Yes, if you move the arrow to the right a little bit, 6 starting in there. 7 Q. Again, that would be reflected on this chart as having 8 Pepe next to 4063 and the same with regard to 4063, the name 9 Pepe to show that he is the contributor? 10 A. Yes, sir. 11 Q. Did there also come a time when you tested a jump suit, 12 Government's Exhibit 4087, also known as Q50? That would show 13 on the chart at 4087 with the green dot, inside cell 6, past 14 the chair, before the shower, apparently near the toilet area 15 in cell number 6. 16 A. Yes, I did test that. 17 Q. What were the results of your analysis? 18 A. Four different stain areas from that item were tested, and 19 the DNA for each of those areas was contributed by Louis Pepe. 20 Q. Finally, did you test Government's Exhibit 4082, which was 21 Q65 and Q66, which were some white strips of sheet-like 22 material? 23 A. Yes, sir. 24 Q. What was your analysis? 25 A. The DNA on both of those items was contributed by Louis 8036 1 Pepe. 2 Q. And again, for the record, 4082 would be the blue dot in 3 the doorway of cell 6, reflected by an orange arrow showing 4 the name Pepe beneath that. 5 Finally, did you test an exhibit known to us as 6 Government's Exhibit 4042, also known others Q20? 4042 is the 7 blue dot in the area outside of cell 6, between cell 6 and the 8 electrical closet. 9 A. Yes, sir, I tested that also. 10 Q. What were the results of your analysis? 11 A. The DNA on that item was contributed solely by Louis Pepe. 12 Q. Let me show you Government's Exhibit 4042. Is this the 13 item that you are referring to and as reflected on the chart, 14 which is determined to have Mr. Pepe's blood on it? 15 A. Yes, sir. 16 Q. Would you take it out and just hold it up, just show us 17 what the item is. 18 A. These gloves are slippery on these plastic bags. 19 MR. FITZGERALD: Thank you, Judge. I have nothing 20 further. 21 THE COURT: Cross-examination, Mr. Ruhnke? 22 MR. RUHNKE: Thank you, your Honor. 23 CROSS-EXAMINATION 24 BY MR. RUHNKE: 25 Q. Dr. Baechtel, you were submitted three different blood 8037 1 samples in the laboratory, is that correct, known samples? 2 A. Actually, more of the known samples were submitted. 3 Q. Were some of the known samples submitted actually what are 4 called buccal swabs? 5 A. I could look. 6 Q. Is that how you pronounce it? 7 A. Yes, sir. Yes, sir, a number of buccal swabs. 8 Q. Just for reference, a buccal swab is a cotton swab taken 9 from the mouth which picks up a lot of cells; is that correct? 10 A. Yes. 11 Q. So the only three blood samples you had were K1, K2 and 12 K12; is that correct? 13 A. I had additional known stains, sir, that were not 14 subjected to DNA analysis, however. 15 Q. K1 was identified as the blood of Khalfan Khamis Mohamed, 16 is that correct? 17 A. Yes, sir. 18 Q. K2 was identified as the blood of Mamdouh Ahmed Salim, is 19 that correct? 20 A. Yes, sir. 21 Q. K12 was Officer Pepe's blood, correct? 22 A. Yes. 23 Q. Included among the items that were submitted to you were 24 numerous articles of clothing and other items that were 25 identified as having either been carried by Officer Pepe, 8038 1 belonging to Officer Pepe or worn by Officer Pepe; is that 2 correct? 3 A. To be honest, I don't know if those three situations -- I 4 knew those three situations. I just know them as items 5 submitted for this case. Whether Officer Pepe was carrying 6 any items, I don't know. 7 Q. Let's start with Khalfan Mohamed's blood then. In all the 8 analysis that you conducted, is it correct that you identified 9 the blood of Khalfan Mohamed in only one location? 10 A. Yes, sir. 11 Q. That location was via a swabbing of the floor of a 12 hallway, is that correct? 13 A. I just know it as item number 4 on that exhibit. 14 Q. Item number? 15 A. Stain number 4. 16 Q. And stain number 4 on that exhibit shows it being in the 17 hallway area outside cells 4 and 5, based on the summary 18 exhibit that you looked at, correct? 19 A. OK. 20 MR. RUHNKE: Could we have Exhibit 4007 displayed for 21 the jury, in evidence. 22 Q. Can you see it, Doctor? 23 A. Yes. 24 Q. Looking at 4007 in evidence, do you know that to be the 25 stain -- almost directly in the middle of the photograph, do 8039 1 you know that to be the stain that was analyzed as Q39? 2 A. I don't know. I could look in the notes and see if any 3 identification in the communications indicated where that was 4 taken from. 5 Q. For example, let me look at the summary chart. 6 Do you know what blood sample number 4 was in your 7 analysis? 8 A. In my analysis, it was Q39. 9 Q. Q39, is that correct? 10 A. Yes. Q39. 11 Q. Of all the items that you examined and tested for the 12 presence of Khalfan Mohamed's DNA, this was the sole item 13 where his DNA appeared; is that not correct? 14 A. It is the sole item where it was identified as the 15 contributor, yes, sir. 16 Q. Do you see an item in that photograph in the foreground? 17 A. The brown garment down there on the floor? 18 Q. Yes. 19 A. Yes, I see that. 20 Q. Do you recognize that as an item that you tested? 21 A. Looks like it could be, yes. 22 Q. Let me just put some gloves on. 23 You previously testified or testified a few minutes 24 ago that there was one item that was identified for your 25 purposes as Salim's shirt recovered from the MCC medical unit, 8040 1 correct? Do you remember that testimony a few moments ago? 2 A. Yes, but I don't remember which item it was. I have two 3 shirts here. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8041 1 Q. Mr. Baechtel, I'm going to hold up to you the second 2 exhibit, which is 4078, I'll take it out of the bag, and I'm 3 going to display the front of this garment and the back of 4 this garment to the jury. And is this the item that was Q53 5 for purposes of your examination? 6 A. Yes, sir. 7 Q. Did you also have submitted to you for examination tissue 8 paper and news-type paper that appeared to be in blood? 9 A. Appeared to be what? 10 Q. Appeared to have blood on them? 11 A. Yes, sir. 12 MR. RUHNKE: Can I see Government Exhibit 4022-A, 13 please, displayed. 14 Q. Do you see the photograph depicting, apparently, some 15 tissue paper with some apparent blood stains on it? 16 A. Yes, it's right in the center of that black box, or the 17 lower bottom of that center of that black box. 18 Q. Yes. Do you see to the left of that what appears to be a 19 light fixture that has on it some newspaper or other paper 20 covering up the light fixture with what appear for our 21 purposes to be blood stains on that as well? 22 A. That's what it looks like, yes. 23 Q. Did you analyze those stains on that tissue or those 24 papers? This would be item Q77 and Q76. 25 A. Yes, sir. We did Q76. 8042 1 Q. What were the results of Q76? 2 A. Off that item I analyzed four stain areas, and the 3 contributor of the DNA to those stain areas was Louis Pepe. 4 Q. To the stain areas on Q76? 5 A. Yes, sir. 6 Q. I'm going to show you in a moment the other shirt that was 7 taken. In analyzing body fluids, fluids that come out of our 8 bodies, are there some fluids that do contain nucleated cells 9 in the sense that they can be analyzed via DNA and other types 10 ever fluids that do not? 11 A. And other what that do not? 12 Q. Do not contain cells appropriate for DNA analysis? 13 A. Well, any biological fluid that is going to have nucleated 14 cells -- now, for example, blood has two different types of 15 cells generally it. It has white blood cells and red blood 16 cells. White blood cells have nuclear DNA. Red blood cells 17 do not. 18 Q. And actually, you are looking simply for white blood cells 19 when you do your analysis; is that correct? 20 A. When the source is blood. If the source is skin, why, we 21 are looking for cells from skin. 22 Q. And is there a bodily fluid that is known as the vitreous 23 humor? 24 A. Yes. It's inside the eyeball, I believe. 25 Q. And does the vitreous humor lend itself to DNA analysis? 8043 1 A. To be frank, I don't know. 2 Q. How about the aqueous humor? 3 A. I don't know that also. 4 Q. Do you what that is? 5 A. If there were nucleated cells floating about in that 6 fluid -- if, I say -- if there were, and I don't know if there 7 are, then they would be possibly suitable. 8 Q. Both the fluids that I mentioned are in and around the eye 9 area of a person, is that not correct? 10 A. That's right. 11 Q. Is there also something called cerebrospinal fluid in our 12 bodies? 13 A. Yes. 14 Q. And for example, does the brain have a fluid in and around 15 it that helps to cushion it from injury and damage? 16 A. I believe so, yes. 17 Q. Is that known as cerebrospinal fluid? 18 A. I would consider that such, yes. 19 Q. I'm going to show you the second shirt, Government Exhibit 20 4076, and you tested this for the presence of DNA, obviously, 21 and reached certain conclusions about this shirt. And just 22 for the record and for clarity, this is a shirt that was 23 testified a few moments ago as having been recovered from 24 Mamdouh Salim in the medical unit on the day in question. 25 And this was Q54 among the items that you identified; 8044 1 is that correct? 2 A. Yes, sir. 3 Q. Tell us again on Q54 the areas that you particularly cut 4 out samples from, if you can recall. Actually -- 5 A. I have to look at the notes, sir. 6 Q. Look at your notes rather than looking at this garment. 7 A. Area 2B, which is on the outside right, upper -- on the 8 outside front, upper right of that shirt. 9 MR. RUHNKE: Just for a moment can I have 4076-P 10 displayed for the jury so they can follow what you are saying. 11 A. Okay. Move the arrow to the right, and that stain area 12 right there. Move the arrow down into the right onto 4B, that 13 area. And finally, I believe 6 is on the other side, the back 14 of the left sleeve. Yes. 15 Q. And those were the four items that you analyzed? 16 A. Those were the three areas that were DNA tested. 17 Q. On that particular shirt? 18 A. Yes. 19 Q. I am also going to show you what has been marked Q52 in 20 evidence. And do you recall that Q52 was an item seized in 21 the hallway between Cells 4 and 5, or in the vicinity of Cells 22 4 and 5? 23 A. I don't recall that, but if that's what was stated, I'll 24 say, yes. 25 Q. And next I'm going to take out Government Exhibit 4085. 8045 1 A. What number did you say, sir? 2 Q. This is Government Exhibit 4085, which is your Q51 for 3 identification. 4 A. I had that as Government Exhibit 4058. 5 Q. 4058. If I said it wrong, I'm sorry. 4058. And that 6 accounts to Q51? 7 A. 51. 8 Q. On Q51, I direct your attention to some staining, appears 9 to go down the left thigh area of Q51. 10 MR. RUHNKE: I'm going to approach if may, your 11 Honor? 12 THE COURT: Yes. 13 A. Yes, sir. 14 Q. Do you see a yellow, clear-type stain extending down the 15 left. I'm holding the left leg in front of you of Q51, a 16 yellowish discoloration. It seems to -- 17 A. Yes, I can see it when the light is on it, right in there. 18 Q. All right. 19 A. Yes. 20 Q. And have you examined garments or other materials that 21 have on them cerebrospinal fluid or the various humors aqueous 22 humor, vitreous humor, from the human eye? 23 A. Not knowingly, no, sir. 24 Q. Did you test this material at all to see if it was even 25 biological in nature? 8046 1 A. That yellowish area that you are -- 2 Q. That yellowish area. 3 A. That is not circled. I can tell you that -- if you would 4 bring it back to me, please. 5 I can tell you this area right here, which is a 6 little dark red spot to the left of that arrow, was 7 presumptively positive for the presence of blood. But as far 8 as that yellow area, I performed no test on that. 9 Q. There was no testing performed at all on that area? 10 A. No, sir. 11 Q. Just one final question. Again, based on all the analysis 12 that you performed, the only area that you found any blood 13 associated or any DNA attributed by Mr. Mohamed was in the 14 area I am pointing to, which is stain number 4; is that 15 correct? 16 A. Yes, that is the only stain in which I could conclusively 17 match Khalfan Mohamed, yes. 18 Q. I'm sorry. And one final question. Let me just finish 19 putting this away. I'm going to look for the number of one 20 exhibit from the photo exhibit. 21 MR. RUHNKE: Could I have Government Exhibit 4004 22 displayed, please. Display Government Exhibit 4004. 23 Q. Do you see a trail of blood leading -- to be more precise, 24 do you see a trail of what appears to the lay person to be 25 blood leading to a large puddle of blood displayed in that 8047 1 photograph? 2 A. Yes. 3 Q. And referring to the summary chart, this would be blood 4 stain number 1; is that correct? 5 A. I can't see the chart, but I'll take your word for it, 6 sir. 7 Q. And blood stain number 1 on the summary chart was examined 8 by you in the lab and was determined that Salim was the soul 9 contributor to that sample; is that correct? 10 A. Yes, sir. 11 MR. RUHNKE: Nothing further, your Honor. 12 MR. FITZGERALD: Nothing further, Judge. 13 THE COURT: Thank you. You may step down. 14 (Witness excused) 15 MR. FITZGERALD: The government calls Special Agent 16 John Scarbeck. 17 JOHN SCARBECK, 18 called as a witness by the government, 19 having been duly sworn, testified as follows: 20 DIRECT EXAMINATION 21 BY MR. FITZGERALD: 22 Q. Sir, you testified at the earlier part of the trial, 23 correct? 24 A. Yes, I did. 25 Q. Are you still employed by the FBI? 8048 1 A. Yes, I am. 2 Q. And directing your attention back to late December 1998, 3 did you have occasion to fly back from Germany with a person 4 by the name of Mamdouh Mahmud Salim? 5 A. Yes, I did. 6 Q. And as part of that flight, on that flight, did the FBI 7 take pictures of Mr. Salim with his shirt off? 8 A. Yes, they did. 9 Q. Let me approach you with what has been premarked as 10 Government Exhibits 4121 through 4124 and ask you to take a 11 look at those four photographs. 12 Do those four photographs fairly and accurately 13 depict what Mr. Salim looked like on that day in December 1998 14 with his shirt off? 15 A. Yes, it does. 16 MR. FITZGERALD: Your Honor, I would offer the 17 photographs. 18 MR. RUHNKE: Without objection. 19 THE COURT: Received. 20 (Government Exhibits 4121, 4122, 4123 and 4124 21 received in evidence) 22 MR. RUHNKE: If we could just display 4121 through 23 4124. 24 (Exhibits displayed) 25 MR. FITZGERALD: I have nothing further. 8049 1 CROSS-EXAMINATION 2 BY MR. RUHNKE: 3 Q. Agent, as part of your duties in accompanying the flight 4 back from Germany, where Mr. Salim had been extradited, did 5 you make any note of his height and weight? 6 A. I did not personally. 7 Q. Was he logged into the Metropolitan Correction Center 8 later that evening? 9 A. To the best of my recollection, yes, he was. 10 Q. What date was that that he was actually arrived in the 11 United States of America? 12 A. I don't remember offhand the exact date. 13 Q. Were you present when his height and weight were recorded 14 as 6 feet tall, 170 pounds? 15 A. I do not recall. 16 Q. Does that sound like an accurate estimate of Mr. Salim's 17 height and weight? 18 A. I would say so, fairly, yes. 19 MR. RUHNKE: Nothing further, your Honor. 20 MR. FITZGERALD: Nothing further, Judge. 21 THE COURT: Thank you. You may step down, agent. 22 THE WITNESS: Thank you. 23 (Witness excused) 24 MR. GARCIA: The government calls Maxim Koslow. 25 MAXIM KOSLOW, 8050 1 called as a witness by the government, 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. GARCIA: 5 Q. Dr. Koslow, how are you employed? Where do you work? 6 A. At New York University Medical Center. 7 Q. And what is your -- if you could speak a little closer to 8 the microphone. 9 And what do you do at the Bellevue Medical Center? 10 A. I am the associate director of the Department of 11 Neurosurgery at Bellevue. 12 Q. And how long have you been associate director of that 13 department? 14 A. Approximately ten years, maybe a little bit more. 15 Q. How long have you been practicing in this area of 16 neurosurgery? 17 A. Since approximately 1980. 18 Q. Directing your attention to November 1 of 2000, did you 19 treat a patient on that day named Louis Pepe? 20 A. Yes, I did. 21 Q. Where did you first see Mr. Pepe that day? 22 A. At Bellevue Hospital on the third floor, the radiology 23 department. 24 Q. What stage of procedures was he at at that time? 25 A. He had just had a CAT scan of his head and was about to 8051 1 have an angiogram. 2 Q. And a cat scan of the head area, what would that show? 3 A. It is a radiologic technique that shows you slices of the 4 head and brain. 5 Q. I am going to show you what has been marked as Government 6 Exhibits 4112 and 4113. Are these CAT scans or CT scans done 7 of Louis Pepe? 8 A. That's correct. 9 MR. GARCIA: Your Honor, the government would offer 10 4112 and 4113. 11 MR. RUHNKE: No objection. 12 THE COURT: They are received. 13 (Government Exhibits 4112 and 4113 received in 14 evidence) 15 THE COURT: There are certain rules that apply with 16 respect to x-rays and documents of this sort. I just want to 17 note that if the occasion arises, there may be some limitation 18 on the extent to which the jury can make use of exhibits which 19 require expertise to read and understand. 20 MR. GARCIA: If we could put up Government Exhibit 21 4113 on the elmo. Start with the lower photo, the lower 22 image. 23 Q. Could you explain for us, Doctor, what we are seeing here 24 on this CT scan? 25 A. Yes. This is one slice of the CT scan, which, if I point 8052 1 here, does that -- 2 Q. If you just would speak a little bit louder into the mike. 3 A. This is one slice of the CT scan. And just for 4 orientation, that's the right side, that's the left side. 5 These are the ears. This is the right eye. So this is the 6 front of the head, the back of the head and the sides. 7 Q. Let me stop you for a second, Doctor. The top of the 8 screen is the front of the head, the top of the screen here? 9 A. That's correct. 10 Q. And the bottom is the back of the head, obviously? 11 A. That's correct. 12 Q. And there is a thick white issue line around part of the 13 image. What is that, circling the back of the image, a thick 14 white line? 15 A. I'm not sure what you are referring to. 16 Q. The skull area? 17 A. The area around here is the skull. 18 THE COURT: Doctor, when you say "around here," that 19 is not meaningful in the printed record, nor does the jury 20 know what you are pointing to. 21 THE WITNESS: Yes. 22 THE COURT: Try and do it in words. 23 THE WITNESS: Yes, your Honor. 24 The dense white area encircling the image is the 25 skull. 8053 1 Q. And up near the top, which, looking at the image on your 2 right-hand side where the object appears to be, what eye would 3 that be of the patient? 4 A. That's the left eye. 5 Q. So, in effect, this is reversed? 6 A. You are referring to this? 7 Q. Right. On our right, the object is in the patient's left 8 eye? 9 A. That is correct. 10 Q. And the left side, then, would be the eye which there was 11 no damage to? 12 A. That's correct. 13 Q. And focusing on the side that has the object, could you 14 explain what we are seeing here? What is the damage to this 15 patient? 16 A. Yes. The object is partially sitting in the left orbit, 17 which is the globe of the eye and the muscles that control the 18 movements of the eye, and then approximately here it enters 19 inside the skull and is into the brain, we'll call the left 20 temporal lobe. 21 Q. And approximately how far into the brain did this object 22 go? 23 A. It's approximately eight centimeters. About two and a 24 half inches. 25 Q. And if we could see the image on the top of that 8054 1 Government Exhibit 4113. And again, what are we seeing here, 2 Doctor? 3 A. This is a, the way these images are taken is like a loaf 4 of bread, where you take a series of slices and they have done 5 what we call the axial projection, which is cross sections of 6 the head, and then you can stack them up and radiologically 7 reconstruct to look at other planes other than the axial. And 8 this is a sagittal reconstruction of the CT scan so that you 9 are looking at it from the side, sliced from the side. 10 Q. You mention that this object went approximately two and a 11 half inches into what you called the left temporal lobe? 12 A. That's correct. 13 Q. And generally speaking, what does that area of the brain 14 control? 15 A. The left temporal lobe, most importantly, controls 16 language function, speaking and understanding language; also 17 controls to some extent vision and to some extent movement on 18 the opposite side of the body. 19 MR. GARCIA: If we could have displayed Government 20 Exhibit 4112. 21 Q. Again, starting with the images in the upper left-hand 22 corner of Government Exhibit 4112, is that a similar image to 23 the one that you were just talking about on 4113? 24 A. Yes, the one you saw before is one slice lower than this, 25 towards the base of the skull. 8055 1 Q. One slice down? 2 A. Correct. 3 MR. GARCIA: And if we could just show some of the 4 other images, perhaps pull back to show more images here. 5 Q. Dr. Koslow, on these images -- and we are talking about 6 the second two on the top row and the second and third row -- 7 there appear to be lighter and darker areas. Could you 8 explain for us what those represent? 9 A. Yes. The gray areas that you see are the brain; the black 10 areas, wherever you see black, is spinal fluid; and wherever 11 you see white inside the skull is blood. 12 Q. If we could lift that exhibit up to see a little bit 13 lower. 14 Doctor, on what appears to be the bottom row now on 15 the screen, the image all the way in the right corner, it 16 appears that the image on the right side of the brain has less 17 detail than on the left side of the brain. Is there a reason 18 for that? 19 A. Yes. 20 Q. What is that reason? 21 A. Because there is increased pressure of and swelling of the 22 left hemisphere of the brain. 23 Q. Doctor, you mention that there is white images displayed 24 on these images on 4112, and you mention that that was blood; 25 is that correct? 8056 1 A. That's correct. 2 Q. Based on your reading of these CT scans, did you come to 3 any conclusion as to where this patient was bleeding or 4 whether or not he had any blood clots? 5 A. Yes. 6 Q. What was that? 7 A. That there was a large blood clot in the left temporal 8 lobe with extension into the, what we call the subdural space, 9 which is the space between the brain and the covering of the 10 brain, which is called the dura, and blood in the ventricular 11 system, which are the passageways inside the brain where the 12 spinal fluid is made. 13 Q. After viewing the CAT scan images for the patient Louis 14 Pepe, did you consider any issues about his treatment, whether 15 or not to operate? 16 A. Well, the first issue was the performance of an angiogram. 17 Q. And what is an angiogram? 18 A. Angiogram is an injection of dye directly into the 19 arteries that feed the brain so you can see what the pattern 20 of the blood flow is and what the arteries look like. 21 Q. Was this in fact done for the patient, Mr. Pepe? 22 A. Yes, it was. 23 Q. If I could approach and show you Government Exhibits 4111 24 and 4116. Are those angiograms taken of Mr. Pepe on November 25 1st? 8057 1 A. Yes, they are? 2 MR. GARCIA: The government offers 4111 and 4116. 3 MR. RUHNKE: Without objection. 4 THE COURT: Yes, received, subject to my caveat. 5 (Government Exhibits 4111 and 4116 received in 6 evidence) 7 MR. GARCIA: If we could display 4116 on the elmo 8 first. 9 Q. Looking at those images, Doctor, could you explain to us 10 what the results of the angiogram analysis was for Louis Pepe? 11 A. Yes. On this view, which is an anterior/posterior 12 projection, and that is, dye is injected and a series of 13 x-rays are taken head-on to look at the flow of blood through 14 the brain over a period of time, and we're looking at an 15 injection into the left carotid artery, which is one of the 16 major arteries that feeds the brain, the front part of the 17 brain. 18 And this is the carotid artery in the neck, which 19 then goes, when it reaches approximately here, enters the 20 intracranial space and then divides into two major arteries, 21 the anterior cerebral and the middle cerebral artery on the 22 left side. There is a mirror circulation on the right side. 23 And what we see on this particular film is the middle cerebral 24 artery should be almost horizontal in its normal position; 25 here, it is lifted up. 8058 1 Q. Doctor, just to back up a little bit, let's start -- we'll 2 look at the image on the right of the screen, our right of the 3 screen. The very dark thick area on the bottom of that image, 4 is that the carotid artery? 5 A. That's the common carotid artery, right. 6 Q. Following that line up towards the top of the image on the 7 right hand of the, right-hand image, there appears to be a 8 part at the top of that image where it splits almost into a V 9 shape. 10 A. You are talking up here? 11 Q. They can't see what you are pointing to, but at the very 12 top of this image. 13 A. Correct. 14 Q. And is it your testimony that that in fact should be more 15 of a square? 16 A. Correct. 17 Q. Perpendicular? 18 A. Correct. 19 Q. And the fact that the artery that is now not perpendicular 20 but more towards a V, what does that indicate to you? 21 A. That means that there is mass effect of the temporal lobe. 22 Q. Would that be pressure pushing that artery up? 23 A. That's correct. 24 Q. And can you also tell anything about the blood flow 25 through these arteries? 8059 1 A. Yes. When you look at the serial, the sequence of the 2 whole angiogram where blood goes, the dye goes through the 3 arteries and then into smaller arteries and capillaries and 4 then small veins, et cetera, you can look at the time course 5 of that flow of blood, and in this case it was prolonged. 6 Q. Very slow? 7 A. Correct. 8 Q. And would there be a risk associated with that type of 9 flow of blood through these arteries? 10 A. Yes. 11 Q. And what would that be? 12 A. You get eschemia, decreased blood supply or even stoppage 13 of blood supply to areas of the brain, and it can cause 14 strokes. 15 Q. Doctor, after viewing the CAT scans for Mr. Pepe and the 16 angiograms, did you reach a decision about how to proceed 17 medically with this patient? 18 A. Yes. 19 Q. And what did you decide, and why? 20 A. To do surgery in an attempt to save his life. 21 Q. And what was the specific goal in doing the surgery? 22 A. To relieve the increased pressure in the brain by removing 23 the blood clot and taking out the penetrating object. 24 Q. Prior to beginning the actual operation, did you have an 25 opportunity to examine, look at this patient, Louis Pepe? 8060 1 A. Very briefly. 2 Q. Could you describe what you observed on his face? 3 A. He had a lot of blood covering his face. He had a 4 laceration of the left forehead and an object sticking out of 5 his left orbit. 6 Q. And let's focus on the laceration on his left forehead. A 7 cut; is that correct? 8 A. That's correct. 9 Q. Approximately how long was that cut? 10 A. Perhaps an inch or so. 11 Q. How deep? 12 A. It was down to the bone, skull. 13 Q. And could you indicate approximately where that was? And 14 I will describe it for the record. 15 A. (Witness indicating.) 16 Q. Above the left eye? 17 A. Correct. 18 Q. Could you tell us, then, how you proceeded when you 19 operated on Mr. Pepe? 20 A. Yes. What we did is make a scalp incision which started 21 in front of his left ear and then came back and forward like a 22 reverse question mark, incorporating the laceration in this 23 part of the, higher part of the incision. And then you 24 reflect the scalp and muscle, the temporalis muscle, which is 25 the thick muscle at the temple, and then drill a hole in the 8061 1 skull and use a special type of saw to remove a large window 2 of the skull to get access to the covering of the brain and 3 the brain. 4 Q. And that window that you describe is on the side of the 5 skull? 6 A. That's correct. 7 Q. And after you accomplished that, what was the procedure? 8 A. To open the dura, sort of like a parchment-paper-thick 9 layer that covers the brain, and then make an incision in the 10 brain initially to decompress the blood clot, to remove some 11 of the blood clot, and then you extend the incision to be able 12 to remove all the blood clot and expose and get control of the 13 penetrating object. 14 Q. This object, was it removed from the patient at that time? 15 A. Yes, eventually. 16 Q. And can you tell us the procedure you followed for doing 17 that? 18 A. Once we had exposed the entire length of the object within 19 the brain so that we could put some clamps on it so when it 20 was pulled out it didn't move or wiggle, we initially tried to 21 remove it that way and weren't able to because it was wedged 22 into the bone in the back of the orbit. And at that point the 23 plastic surgery people who were operating with us took a piece 24 of the skull out in the orbit, exposing the intraorbital 25 portion of the object, and then we were able to take it out. 8062 1 Q. Doctor, you mentioned the bone of the orbit, is that the 2 back of the eye socket? 3 A. That's correct. 4 Q. And is that bone behind the eye socket of uniform 5 thickness? 6 A. It varies depending on what portion of the orbit it is. 7 Q. And the portion that the object here passed through, would 8 that be one of the thinner portions or the thicker portions of 9 the orbit? 10 A. It was actually both; partially through one of the thicker 11 portions and also fractured the thinner portion of the orbit. 12 Q. And the object that you did in fact remove, what did it 13 look like? 14 A. It was a, I don't exactly know how to describe -- it was a 15 long, probably, I guess, very hard plastic, rubber, pointed 16 object with serrations on it, sort of similar to a serrated 17 knife, pointed knife. 18 MR. GARCIA: And if I might approach with Government 19 Exhibit 4041? 20 THE COURT: Yes. 21 Q. Do you recognize that, Doctor? 22 A. Yes, I do. 23 Q. And I'm going to also hand you 4041-A, a container 24 containing a small object. Do you recognize that? 25 A. Yes, I do. 8063 1 Q. Are those the, 4041, the actual instrument you removed 2 from the patient, Louis Pepe? 3 A. That's correct. 4 Q. And the other object, 4041-A, is that a small piece of 5 that first? 6 A. That's correct. 7 Q. And I will show you 4041-P. Is that a fair and accurate 8 photograph of the object 4041? 9 A. Yes, it is. 10 MR. GARCIA: At this time, Judge, we would offer 11 4041, 4041-A and 4041-P, and ask that 4041 be displayed. 12 THE COURT: Yes, proceed. 13 (Government Exhibits 4041, 4041-A and 4041-P received 14 in evidence) 15 BY MR. GARCIA: 16 Q. Again, Doctor, this is the instrument that you removed 17 that day? 18 A. Yes, it is. 19 Q. And there is a small piece of plastic in 4041-A. Could 20 you indicate for us where that came from on this knife? 21 A. Approximately here. 22 THE COURT: In words, please. 23 THE WITNESS: Approximately the second serration 24 after the large vertical piece. 25 Q. After the object was removed, did there come a time that 8064 1 you closed back up the incision that you had made that you 2 described for us? 3 A. Yes. 4 Q. And looking into the orbit, or the eye socket, was there 5 anything left of the actual eye? 6 A. No, the globe was totally destroyed. 7 Q. And what was done with that? 8 A. The globe and muscle cone were removed by the 9 ophthalmologic surgeons. 10 Q. Then was the area of the eye closed? 11 A. The actual orbit was not closed. It was packed with 12 packing. 13 Q. Was anything done to seal the area behind the eye? 14 A. Yes. We had tried to repair the dura as best we could, 15 and then the plastic surgeons rotated a portion of the 16 temporalis muscle inside the skull in the, just behind the 17 orbit to try to seal that before we put the bone flap and 18 closed the scalp. 19 Q. And did you continue to monitor the patient Louis Pepe's 20 condition after the operation? 21 A. Yes. 22 Q. Did any complications develop within the next few days? 23 A. He developed, as I remember, pneumonia and urinary tract 24 infections and had a fairly prolonged, lengthy postop course 25 with fevers and developed a leak of spinal fluid through the 8065 1 orbit. 2 Q. Is that because some of the vessels carrying spinal fluid 3 had been damaged behind the eye? 4 A. It is because the covering of the brain had been damaged 5 so that there was a communication between the brain cavity 6 where fluid flows and the outside through the orbit. 7 Q. Did there come a time after the operation that the patient 8 also suffered a stroke? 9 A. Yes. 10 Q. Approximately when did that happen? 11 A. It was noted on the CT scan, as I recall, approximately 12 two or three days after the initial operation. 13 MR. GARCIA: If I might approach with Government 14 Exhibit 4109. 15 Q. Is that a copy of the CT scan done at about that time? 16 A. This is an MRI scan which was done some time later. This 17 was the 10th of March. 18 Q. Would this MRI scan show the area affected by the stroke? 19 A. Yes. 20 MR. GARCIA: The government offers 4109. 21 THE COURT: Received. 22 (Government Exhibit 4109 received in evidence) 23 MR. GARCIA: Is it possible to make it a little bit 24 lighter and just lifting it up one more row. 25 That's fine. 8066 1 Q. Looking, Doctor, at the full row that is on the bottom, 2 the first full row from the bottom, the two right images, do 3 those show the areas affected by the stroke? 4 A. Yes, it does. Or, they do. 5 Q. Generally, if you can describe it for us. What area of 6 the image is that? 7 A. It's on the left side. This is the same convention, that 8 the left side is on your right as you look at the images. You 9 see an area of gray, which is sort of wedge-shaped on all the 10 images going out to the -- it's wedge-shaped and going out to 11 the surface of the brain, and that is an area of infarction. 12 Q. And that area which is on the lower right side of the 13 image as we are facing it, what does that represent, that 14 grayish area? 15 A. It represents an area of death of the cells. 16 Q. And what would the effect of the death of those cells be 17 on the patient? 18 A. It would affect in that location, again, in addition to 19 the language difficulty, here particularly the vision and the 20 movement of the right side of the body. 21 Q. Doctor, this type of injury, is the damage to the patient 22 complete with the initial trauma of the instrument entering 23 through the eye and into the brain? 24 A. No. 25 Q. Is this an ongoing injury? 8067 1 A. Yes, it is. 2 Q. And could you explain what you mean by that? 3 A. There are a series of biochemical and physical changes 4 that occur within the brain basically as a cascade of damage 5 that usually goes on for a period of time after the initial 6 insult to the brain. 7 Q. Would that also be as a result of the increase in 8 pressure, things of that nature? 9 A. That's correct. 10 Q. And as a result of the damage done to Officer Pepe here, 11 what condition is he in? 12 A. He is alert. He has got what we call a severe receptive 13 and expressive dysphasia, which refers to his language 14 function, his ability to communicate both in terms of 15 understanding what is said to him and being able to 16 communicate to other people what he wants to communicate. He 17 has a right hemiparesis, which is worse in the arm than the 18 leg, and he's got a visual deficit. 19 Q. The hemiparesis, I believe you called it, is that a 20 paralysis? 21 A. It's a partial paralysis. 22 Q. And you mentioned a language difficulty. Doctor, would 23 that only be with spoken language or would that also affect 24 his ability to communicate through writing? 25 A. It would affect all aspects of language. 8068 1 Q. You mentioned damage to his sight. Doctor, based only on 2 the injury to his brain, to the left temporal lobe, without 3 any damage to the eye mechanics itself, would there have been 4 a loss of sight to this patient? 5 A. Yes, there would. 6 Q. And if you could, describe what that loss would have been 7 based solely on the injury to the brain. 8 A. What we call a right homonymous hemianopia, which means 9 that the ability to see to the right-hand side in both eyes is 10 affected. 11 Q. So if you break down each eye to a right and a left field, 12 so a total of four fields, the right field for each eye would 13 be affected? 14 A. That's correct. 15 Q. Would the sight be eliminated in that field? 16 A. That is correct. 17 Q. And then add to that the damage to the eye itself, that 18 would eliminate the sight field for the left eye completely? 19 A. Correct. 20 Q. So, in effect, this patient is left with one field sight 21 in total? 22 A. That's correct. 23 Q. So he has lost more sight than just losing the eye itself? 24 A. That is correct. 25 THE COURT: How much longer will you be on direct? 8069 1 MR. GARCIA: We could break now, Judge. Not much 2 longer. 3 THE COURT: We'll take our midmorning break. 4 (Jury not present) 5 THE COURT: We'll take a five to ten-minute recess. 6 (Recess) 7 THE COURT: Let's bring in the jury. 8 MR. GARCIA: One minute before. Just to advise the 9 Court, we have very short time with this witness. After 10 whatever cross, the government plans to read three clean-up 11 stipulations, and to just display the weapon, not pass it to 12 the jury. 13 THE COURT: Yes. 14 MR. GARCIA: Without formally resting so we can look 15 into things this afternoon, and then we would be prepared to 16 either rest or go forward in the morning. 17 THE COURT: So what you are saying is you think we 18 will end early today? 19 MR. GARCIA: We will end, obviously not to be 20 speaking for Mr. Ruhnke, but we have about five minutes more 21 of things to take up. We would like not to formally rest at 22 this point. 23 MR. RUHNKE: We will definitely end before lunch, 24 your Honor. 25 THE COURT: End before lunch, all right. 8070 1 You can bring in the jury. 2 Have you resolved the stipulations? There was 3 something that required my attention. We will resolve that. 4 MR. FITZGERALD: There is one stipulation that 5 requires your attention and some other issues we could perhaps 6 deal with after the jury is excused. 7 THE COURT: After the jury is excused. All right. 8 (Jury present) 9 THE COURT: Mr. Garcia, you may continue. 10 MR. GARCIA: Thank you, Judge. 11 BY MR. GARCIA: 12 Q. Dr. Koslow, prior to the break you were speaking about 13 some of the complications that Mr. Pepe had suffered as result 14 of his injury, correct? 15 A. That's correct. 16 Q. Is there also a problem with blood clots? 17 A. Yes. 18 Q. Could you tell us about that? 19 A. He developed blood clots in his right leg, the weak leg. 20 Q. What would cause blood clots like that to appear? 21 A. Not using the leg; the leg being paralyzed. 22 Q. First of all, as a result of the clot, did his leg become 23 swollen? 24 A. That's correct. 25 Q. What would be the danger of a blood clot for the patient? 8071 1 A. Mr. Pepe had had previously had a filter placed, which is 2 like an umbrella which goes into the main vein that drains the 3 lower extremities to prevent large blood clots from breaking 4 off to go to the lungs. You can also get blood clots, and 5 with the filter, the blood in the leg tends to be -- does not 6 circulate well and tends to get what we call stasis, venous 7 stasis, and the leg swells. 8 Q. And venous stasis leads to swelling, is that correct? 9 A. Correct. 10 Q. And blood clots getting into the lungs, what would be the 11 result? 12 A. It is one of the causes of sudden death. 13 Q. Dr. Koslow, have you continued periodically to see Officer 14 Pepe at the hospital? 15 A. Yes, I have. 16 Q. Is he presently at a facility at the NYU Medical Center? 17 A. That's correct. 18 Q. Based on your examinations and your dealings with the 19 patient, what is Louis Pepe's condition now? 20 A. He has a severe expressive and receptive dysphasia, 21 language difficulty. His right lower extremity has gotten 22 better to some extent and he can stand with support. He has 23 got very little motion, movement of his right upper extremity, 24 and no obvious change in the visual difficulty. 25 Q. And in your opinion, is this a major permanent disability? 8072 1 A. Yes, it is. 2 MR. GARCIA: I have nothing further, Judge. 3 MR. RUHNKE: We have no questions, your Honor. 4 THE COURT: No questions? 5 MR. RUHNKE: No questions. 6 THE COURT: Thank you, Doctor. You may step down. 7 (Witness excused) 8 MR. GARCIA: Judge, at this time we would like to 9 read three stipulations. 10 THE COURT: Three stipulations. 11 MR. GARCIA: The first, Government Exhibit 4088: It 12 is hereby stipulated and agreed between the parties as 13 follows: 14 Although the fingerprint expert testified that a 15 latent fingerprint belonging to Mamdouh Salim was identified 16 on Government Exhibit 4054, in fact that fingerprint belonging 17 to Salim was identified on Government Exhibit 4052. There 18 were no fingerprint identifications with respect to Government 19 Exhibit 4054. 20 And at this time the government would offer 4088. 21 THE COURT: Yes, received. 22 (Government Exhibit 4088 received) 23 MR. GARCIA: It is hereby stipulated and agreed 24 between the parties that Government Exhibit 4091 consists of 25 eyeglasses belonging to Khalfan Mohamed and the case for those 8073 1 glasses, and is further stipulated and agreed that this 2 stipulation may be received in evidence as a government 3 exhibit at trial. And the government would offer that 4 stipulation, Government Exhibit 4069, and hold up 4091, 5 already in evidence. 6 THE COURT: Yes. 7 (Government Exhibit 4069 received in evidence) 8 MR. GARCIA: And the final stipulation, number 4067: 9 It is hereby stipulated and agreed between the parties as 10 follows: 11 That Khalfan Khamis Mohamed was born on July 25th, 12 1973 and was, thus, 25 years of age as of August 7th, 1998. 13 And the government would offer that stipulation, 14 number 4067. 15 THE COURT: Received. 16 (Government Exhibit 4067 received in evidence) 17 MR. GARCIA: As a final thing, I would just like to 18 hold up, and not pass, Government Exhibit 4041, now in 19 evidence. 20 THE COURT: Yes. 21 (Government Exhibit 4041 displayed to the jury) 22 MR. GARCIA: And that's all at this time, Judge. 23 THE COURT: Ladies and gentlemen, things have moved 24 at a more rapid rate than was provided for, which I am sure we 25 are all grateful for, which is another way of saying that that 8074 1 is all for today. 2 We have ordered lunch. It is your option whether you 3 want to stay or not. If you opt not to stay, the food will 4 not be wasted, the marshals tell me, particularly the heavier 5 marshals tell me. 6 The likely time sequence is that the case on behalf 7 of K.K. Mohamed will begin tomorrow and will run the rest of 8 the week, and that next week, after closing argument and the 9 jury charge, you will begin your deliberations sometime next 10 week. And as I have already mentioned, we won't sit on 11 Wednesday. 12 But that is it for today. Thank you. 13 (Jury not present) 14 THE COURT: Counsel want to see me about some 15 stipulation. You want to do that in open court or in the 16 robing room? 17 MR. FITZGERALD: There are some other matters that 18 involve the robing room as well. 19 THE COURT: So we will do it all in the robbing room. 20 And insofar as open court is concerned, we're adjourned until 21 tomorrow morning. 22 (Pages 8075 through 8098 filed under seal.) 23 (Adjourned to June 26, 2001 and 10:00 a.m.) 24 25 8099 1 INDEX OF EXAMINATION 2 Witness D X RD RX 3 JOHN SCARBECK...........8047 8049 4 MAXIM KOSLOW............8049 5 GOVERNMENT EXHIBITS 6 Exhibit No. Received 7 4121, 4122, 4123 and 4124 ..................8048 8 4112 and 4113 ..............................8051 9 4111 and 4116 ..............................8057 10 4041, 4041-A and 4041-P ....................8063 11 4109 .......................................8065 12 4088 .......................................8072 13 4069 .......................................8073 14 4067 .......................................8073 15 16 17 18 19 20 21 22 23 24 25
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