14 March 2006
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1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA, . Criminal No. 1:01cr455 . vs. . Alexandria, Virginia . March 14, 2006 ZACARIAS MOUSSAOUI, . 9:30 a.m. a/k/a Shaqil, a/k/a . Abu Khalid al Sahrawi, . . Defendant. . . . . . . . . . . . . . TRANSCRIPT OF EVIDENTIARY HEARING BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA DAVID J. NOVAK, AUSA DAVID RASKIN, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and JOHN W. VAN LONKHUYZEN, ESQ. U.S. Department of Justice Counterterrorism Section 10th and Constitution Avenue, N.W. Room 2736 Washington, D.C. 20530 FOR THE DEFENDANT: GERALD THOMAS ZERKIN KENNETH P. TROCCOLI ANNE M. CHAPMAN Assistant Federal Public Defenders Office of the Federal Public Defender 1650 King Street Alexandria, VA 22314 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 2 APPEARANCES: (Cont'd.) FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. P.O. Box 903 107 East Washington Street Middleburg, VA 20118 and ALAN H. YAMAMOTO, ESQ. 643 South Washington Street Alexandria, VA 22314-3032 ALSO PRESENT: GERARD FRANCISCO COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 and KAREN BRYNTESON, FAPR, RMR, CRR Brynteson Reporting, Inc. 2404 Belle Haven Meadows Court Alexandria, VA 22306 (703)768-8122 3 1 P R O C E E D I N G S 2 (Defendant in.) 3 THE CLERK: Criminal Case 2001-455, United States of 4 America v. Zacarias Moussaoui. Counsel please note their 5 appearance for the record. 6 MR. SPENCER: Good morning, Your Honor, Rob Spencer, 7 David Novak, and David Raskin for the United States. With us 8 today we have Paul McNulty and Kevin Gingras. Thank you. 9 THE COURT: Good morning. 10 MR. MAC MAHON: Good morning, Your Honor. Edward 11 MacMahon, along with Ken Troccoli, Alan Yamamoto, and Anne Chapman 12 for the defendant. 13 THE COURT: All right. We're here, as you know, this 14 morning to address the issues that were first raised yesterday 15 concerning the violation of the Court's order on the rule on 16 witnesses and to determine the extent to which the, I'm going to 17 call them the Federal Aviation, or the aviation witnesses, the 18 seven witnesses listed in the government's letter of March 13, 19 2006, have been tainted by the conduct by Ms. Martin. 20 It is the Court's view of the situation that it is up to 21 the attorneys to at least begin the questioning of these 22 witnesses, with the goal being to determine the extent to which 23 their testimony may have been tainted or undercut by Ms. Martin's 24 activities. I think that it is up to the Court to question 25 Ms. Martin, with counsel being certainly free to follow up on 4 1 those questions, so that we have a complete record as to exactly 2 what happened and why it happened, so that I can evaluate the 3 situation at this point. 4 Unless there is anything either side wants to bring to 5 my attention or any suggestions -- and I certainly will not be shy 6 about asking the witnesses questions myself after you-all have 7 done so. 8 Mr. Spencer? 9 MR. SPENCER: Thank you, Your Honor. If the Court would 10 allow, I would just like to make three observations at the outset. 11 THE COURT: Go ahead. 12 MR. SPENCER: The first, Your Honor -- and we first 13 thank the Court for having the hearing today, because I think this 14 is going to bear out several things. I think first it is going to 15 bear out, we expect -- and we have not talked to these witnesses 16 at all since the hearing yesterday -- but we think it is going to 17 bear out that these witnesses were not tainted by Ms. Martin's 18 conduct. 19 In that light, Your Honor, I think it is important to 20 note that despite Ms. Martin's misconduct, and we are not 21 condoning that at all, I mean, I think the Court realizes that we 22 have worked very hard on this case for four-and-a-half years, and 23 we have weathered a lot of bumps in the road, and we are not the 24 least bit happy nor do we condone Ms. Martin's actions. 25 But I think if we look at that e-mail chain, Your Honor, 5 1 and I think that we expect the witnesses to bear out today, that 2 the truth here has not changed at all and that Ms. Martin has not 3 attempted to get the witnesses to lie, to change their story. 4 What her concern was was that the government had stated things too 5 strongly in its opening and she was trying to insulate her client, 6 FAA employees, against cross-examination, and that is her job. 7 She was representing the FAA. 8 Her methods violating the Court order, obviously, 9 inexcusable, but her conduct should not hurt this prosecution. 10 And the question as the Court frames it is what the remedy should 11 be. 12 Dismissal of the death notice, Your Honor, we submit 13 respectfully, is too strong a sanction. There has been no case 14 that we have been able to find, no decision, where dismissal has 15 occurred because of a violation of a sequestration order. 16 Likewise, I think the hearing is going to show that the 17 witnesses are not tainted. And so I think the remedy here, Your 18 Honor, is cross-examination and latitude in cross-examination and 19 in closing argument. 20 We are ready to proceed as the Court sees fit, and we 21 will question the witnesses. I do want to put on the record that 22 we have not spoken to them at all since this occurred, and we are 23 prepared to go forward as the Court has suggested. 24 Thank you, Your Honor. 25 THE COURT: All right. Mr. MacMahon? 6 1 MR. MAC MAHON: Good morning, Your Honor. 2 Very briefly, first of all, the government claims 3 somehow that Ms. White is some essentially unrelated party to this 4 case. 5 THE COURT: White? 6 MR. MAC MAHON: Ms. White, I'm sorry, I have got all 7 these witnesses here, Ms. Martin is some unrelated party here, 8 really should fall on deaf ears with the Court. If I can give you 9 what has been marked as Defendant's Exhibit 1 just before we even 10 start, and if I can hand it to Mr. Wood. 11 THE COURT: Does Mr. Spencer have a copy? 12 MR. MAC MAHON: Yes, I am giving him one right now, Your 13 Honor. 14 And Exhibit 1 is something I'm sure the Court is 15 familiar with, one of the, I don't know how many thousands of 16 pleadings we're up to now, Your Honor, but this is a motion, the 17 government's motion for protective order to prohibit the 18 disclosure of sensitive information to the defendant. 19 And if you turn to the back page, trial attorney is 20 Carla J. Martin, Office of the Chief Counsel of the Transportation 21 Security Administration. 22 This is somebody who has entered an appearance in this 23 case. She may not be sitting here at the table with these 24 gentlemen, and I'm not imputing her conduct to any of the lawyers 25 that are sitting here, but it is clear that she has been to all 7 1 the hearings, that she has been at -- anytime you get a 302 that 2 deals with somebody being asked questions, she is present, and to 3 try to say that the taint that she has caused in this case somehow 4 is not chargeable to the government in this case really strains 5 credibility. 6 And so if the Court wants to ask questions, I think 7 we're going to have to get into what she did, whether she was 8 involved in listening to these opening statements beforehand, what 9 they did. We know yesterday, after hearing that there was no 10 relationship, essentially, between -- that they invoked the 11 attorney-client work product privilege to try to keep this 12 information from us anyway. 13 THE COURT: Well, now, Mr. Spencer in his brief, I guess 14 it was last night, makes it clear that the government -- the 15 Department of Justice did not invoke it. They suggested that it 16 might, some of these communications might be protected by work 17 product. 18 MR. MAC MAHON: It seems to me to be an inapposite 19 position, but -- 20 THE COURT: All right. 21 MR. MAC MAHON: -- what I want to get to is the fact 22 that if you look at this opening statement and the brief that we 23 got this morning, when we deal with these witnesses, the 24 government didn't say in their opening statement that they might 25 have prevented these attacks or that if Moussaoui had lied, they 8 1 could have done a few things that might have made it a little less 2 likely that this would have happened. 3 It says that in the opening on page 45: We would have 4 prevented the terrorists from getting on the plane and getting on 5 the plane with the weapons they used to turn those aircraft into 6 weapons to kill Americans. That's what they promised the jury 7 they were going to prove. They said on the same page: It would 8 have been a straightforward effort to keep those hijackers and to 9 keep anyone with a knife or a box cutter off of a plane. 10 Now, Ms. Martin read this and realized that apparently 11 it wasn't true. Now, the government certainly wasn't going to 12 come before the jury and say otherwise, now, that yes, she's 13 correct, that you've got to shape your testimony. We really -- if 14 we're going to get the death penalty here, we've got to be a 15 little more subtle and say that if we had known this, we would 16 have done X, Y, and Z. 17 That's exactly what the rule prohibits. And it's 18 infected this process now to the way that I think that there isn't 19 any way to put the genie back in the bottle. The government 20 witnesses, I'm sure, are going to say that I was always prepared 21 to say that there was going to be a multi-layered approach. We 22 have got the 302s that are different, and I guess we're just going 23 to have to proceed. 24 The other thing I want to say is on this 25 right-to-counsel question yesterday, I'm not sure -- the brief 9 1 that was filed yesterday claiming that Mr. Novak asked an entirely 2 proper question is an argument that's just entirely baseless. I 3 have never even heard of a heated direct examination as an excuse 4 to have asked such a question. 5 And though while Moussaoui was free to go back to the 6 government and they were free if they wanted to under certain 7 circumstances and go back and talk to him, they did not have the 8 right to comment on his, his failure to come forward after he 9 invoked his right to counsel, and we're going to have to deal with 10 that later too, Your Honor, but subject to that, we are prepared 11 to proceed with the hearing as the Court suggests. 12 Thank you. 13 THE COURT: All right. 14 MR. SPENCER: I think I have to respond to some of those 15 points if the Court will permit me. First of all, this pleading 16 from 2002, I believe, it is, although Ms. Martin's name is on 17 this, she is clearly acting on behalf of the FAA. She is not part 18 of the prosecution team. Any suggestion to the contrary is just 19 flat wrong. 20 THE COURT: I know, but Mr. Spencer, the prosecution 21 team, while you are all employed by the Department of Justice, you 22 represent the United States of America. And the Transportation 23 Safety Security Administration, the FAA, that's all a part of the 24 United States Government. 25 The party in interest in this case is the United States 10 1 against the defendant. It is not the Justice Department against 2 the defendant. And so I think the conduct of any government 3 lawyer, particularly one who is this connected to the prosecution 4 being a liaison person from one of the constituent executive 5 agencies that's clearly involved in this case does mean that her 6 conduct to a certain degree is ascribable to the party, not to 7 your office. I have made that crystal clear. 8 The prosecutors in this case, the three men who are in 9 this courtroom today, did nothing wrong. You have in my view -- 10 in connection with this situation, in connection with the rule on 11 witnesses, but you can't totally separate what happened from 12 having implications for the government as a party. 13 MR. SPENCER: What I'm trying to say, Your Honor, at 14 bottom is that she's not trying to help the prosecution when she 15 violated the Court order. 16 THE COURT: I agree with that. 17 MR. SPENCER: She is trying to protect the FAA. 18 Mr. MacMahon is using this opportunity to reargue the opening 19 statements. Our opening statement is correct. The way we do this 20 in court, of course, as Your Honor well knows, is that we give the 21 opening and it is a prediction of what's going to occur. 22 Then we have the testimony. We have not heard the 23 testimony yet. We don't know whether the testimony will fully 24 back up my opening statement or not. We believe it will. It is a 25 multi-layered approach: flight lists, magnetometers at the gate, 11 1 and the CAPPS system. We believe it is entirely consistent. 2 If she quibbles with the opening -- and let me state 3 categorically for the record, she had never seen or heard anything 4 to do with the government's opening before we made it in court on 5 March 6th. So she is not involved with that at all, to answer 6 Mr. MacMahon's direct allegation. 7 And she is not trying to help the prosecution. She is 8 not involved in the opening. Mr. MacMahon should not be given 9 this opportunity to reargue this case in this forum. 10 THE COURT: All right. Ms. Martin should be on deck to 11 be called as a witness. Let's have her in first. 12 MR. NOVAK: Do you want to initiate questioning, or do 13 you want me to start? 14 THE COURT: If you want to start, you may. I'll let you 15 start. 16 MR. NOVAK: This is the one time I'm not anxious to get 17 up here, Judge. 18 THE COURT: That's all right. 19 Mr. MacMahon, I assume you are going to handle -- or is 20 it going to be Mr. Yamamoto? Who is going to handle this for the 21 defense? 22 MR. MAC MAHON: I will handle Ms. Martin. 23 THE COURT: I will see if you-all cover what I'm 24 concerned about. I'll let you do it. If not, I will not be shy 25 about stepping in. 12 1 MR. MAC MAHON: I'm sure of that, Your Honor. 2 CARLA MARTIN, GOVERNMENT'S WITNESS, AFFIRMED 3 THE WITNESS: Your Honor, may I address the Court 4 initially? 5 THE COURT: No, ma'am, you are a witness. 6 THE WITNESS: I have not had -- 7 THE COURT: You are a witness. 8 Mr. Novak, go ahead. 9 MR. NOVAK: Judge, I think before we proceed, though, we 10 would ask the Court to advise the witness of her rights before we 11 go forward. 12 THE COURT: Yes. Ms. Martin, as you, I'm sure, are 13 aware, it appears as though you have violated a specific Court 14 order as to how the rule on witnesses was to be handled in this 15 case. That possibility -- that creates a possibility that you 16 could be held either in civil or criminal contempt of the Court's 17 order. 18 You have a right not to testify, if you feel that your 19 testimony might incriminate you. You should understand that 20 whatever you say is under an affirmation to tell the truth, so you 21 are subject to perjury and also subject to the fact that anything 22 you say could be used against you in a prosecution for contempt. 23 You have a right to be represented by counsel. If you 24 are unable to afford an attorney, we would appoint counsel for 25 you. Do you understand that? 13 1 THE WITNESS: I do, Your Honor, and I do not have 2 counsel. I only learned of this hearing yesterday afternoon, and 3 I was told to seek counsel. I did, indeed, try. I spoke to 4 Mr. Sinclair and other attorneys, but I was unable to get counsel 5 at all. 6 And I very much want to address the Court and the 7 issues, but this is an adversarial proceeding, and I do not -- I'm 8 not represented by counsel. I would like to be represented by 9 counsel. 10 THE COURT: Then at this point, I don't think we can 11 continue with the questioning of this witness. 12 Mr. Novak? 13 MR. NOVAK: Judge, I think you are right. I think 14 that's the purpose of warning a witness. 15 THE COURT: Is it Fred Sinclair you are trying to 16 retain? 17 THE WITNESS: Yes, Your Honor. 18 THE COURT: Were you able to reach him? 19 THE WITNESS: I was, Your Honor. 20 THE COURT: And he is not available to come later today? 21 THE WITNESS: I don't know whether he is able to come 22 later today. He was conflicted, he had a scheduling conflict this 23 morning. 24 THE COURT: All right. I will direct that you are to 25 contact him and see if you can possibly arrange for him to be 14 1 available later today, if not later today, 8:30 tomorrow morning 2 here at the courthouse. 3 THE WITNESS: Yes, Your Honor. 4 THE COURT: And get back to us immediately about that. 5 THE WITNESS: Yes, Your Honor. 6 THE COURT: All right. You are not to discuss with 7 anyone other than counsel the proceedings today or what is going 8 on concerning your e-mail messages. Do you understand that? 9 THE WITNESS: I do. 10 THE COURT: Since you were advised about these 11 proceedings, have you had any discussion -- and again, if you 12 don't want to answer this question, you don't have to, but I will 13 ask it anyway -- have you had any communications with any of the 14 people who were the subject of your communications; that is, 15 Ms. Osmus, Mr. Manno, Mr. Longmire, Mr. or Ms. Pat McDonnell, 16 Robert White, Matthew Kormann, or John Hawley, either in 17 telephone, in person, by e-mail, or in any other way, have you 18 communicated with them or they with you about any of the issues 19 that have been raised in connection with this hearing today? 20 THE WITNESS: I don't believe so, no, Your Honor. 21 THE COURT: All right. Mr. Novak, anything further for 22 this witness right now? 23 MR. NOVAK: Judge, I don't think we can go further at 24 this point. 25 THE COURT: Mr. MacMahon? 15 1 MR. MAC MAHON: I agree, Your Honor. 2 THE COURT: Let us know right away, so we know whether 3 we're starting at 8:30 tomorrow morning or we can do this this 4 afternoon. All right. You are free to go. 5 THE WITNESS: Thank you, Your Honor. 6 (Witness excused.) 7 MR. NOVAK: Judge, Mr. MacMahon was asking me if we 8 should still go forward. I think we should. We want the Court to 9 know what's happened here so you can affix an appropriate remedy. 10 THE COURT: Let's get started. We will see whether we 11 can finish this up today. 12 MR. NOVAK: We'd like to begin with Lynne Osmus, Judge. 13 THE COURT: All right, Ms. Osmus. 14 LYNNE OSMUS, GOVERNMENT'S WITNESS, AFFIRMED 15 MR. NOVAK: May I proceed, Your Honor? 16 THE COURT: Yes. 17 DIRECT EXAMINATION 18 BY MR. NOVAK: 19 Q. Ma'am, do you want to state your full name, spelling both 20 your first and your last names for the Court? 21 A. Yes. It is Lynne Osmus, L-y-n-n-e, O-s-m-u-s. 22 Q. Ms. Osmus, can you tell the Court by whom you are employed? 23 A. By the Federal Aviation Administration. 24 Q. And what is your title at the Federal Aviation 25 Administration? 16 1 A. I'm assistant administrator for security and hazardous 2 materials. 3 Q. Can you tell the Court what that job entails? 4 A. Yes, sir. We have responsibility for the oversight of the 5 transportation of HAZMAT by air and security for FAA facilities, 6 FAA personnel, and also our communications and command and control 7 function within the agency. 8 Q. How long have you worked for the FAA? 9 A. 26 years. 10 Q. Could you give a thumbnail sketch for Her Honor as to the 11 various jobs that you have had throughout your 26 years with the 12 FAA? 13 A. Certainly. I started in 1979 as an FAA police officer, when 14 Dulles was still owned by the FAA, and then I entered the Civil 15 Aviation Security Program at the FAA in 1981, where I remained 16 until 1995, reaching the position of director of field operations. 17 From there I went to be chief of staff for the FAA, 18 served a two-year term in Brussels as the director of our 19 international office there, returned from that function in 1998 -- 20 I'm sorry, 2000, and then in the summer of 2001 became the deputy 21 associate administrator for Civil Aviation Security, where I 22 remained until early 2002. 23 Q. Okay. Now, in the summer of 2001, what agency was in charge 24 of the security at airports? 25 A. The FAA was. 17 1 Q. And after the attacks on September 11th, did that change? 2 A. Yes. 3 Q. What agency took over control then? 4 A. Legislation established the Transportation Security 5 Administration in late 2001, and they took over management and 6 control in early 2002. 7 Q. Now, you, though, stayed with the FAA, though; is that right? 8 A. Yes, I did. 9 Q. You didn't go over to TSA? 10 A. I stayed with FAA. 11 Q. Now, a couple months ago you were requested to be a witness 12 for the government in this prosecution; is that right? 13 A. Yes, I was. 14 Q. And have we advised you what -- the type of testimony that we 15 intend to elicit from you? 16 A. Yes. 17 Q. Do you want to tell the Court what the focus of your 18 testimony, anticipated testimony will be if the Court allows it 19 during this trial? 20 A. Yes. One function is to look at the way we handled the 21 threat information that was made available to us in 1995 22 concerning the Manila plot, and then using that as a basis, talk 23 about the kind of countermeasures we would have implemented had we 24 known about the information Mr. Moussaoui knew prior to 9/11. 25 Q. Do you want to tell the Court exactly what the Manila -- or 18 1 the Bojinka plot is, the other name for it, I gather -- just a 2 thumbnail sketch of what occurred in that situation? 3 A. Yes. In January 1995 we received information from the 4 intelligence community which started from a fire that occurred in 5 Manila. When the authorities responded to the fire, they found 6 outlines of plans and other information which indicated 7 operational planning for a terrorist plot to attack about a dozen 8 U.S. air carriers flying out of Asia Pacific. 9 The plan involved the use of liquid explosives and five 10 operatives that would secrete explosive devices of one sort or 11 another onboard an airline during the first leg of the flight, 12 deplane, and a timer which would have the explosive detonate 13 during the second leg of the flight. 14 Q. Now, as a result of -- you-all learned that information 15 approximately January the 7th or the 8th of 1995; is that right? 16 A. That's right. 17 Q. And as a result of the information that you received from the 18 intelligence community, did you-all issue what are known as 19 security directives? 20 A. We did. 21 Q. Can you tell the Court what a security directive is in the 22 world of the FAA? 23 A. Certainly. The air carriers and airports which we guided and 24 recommended and established security programs had standard 25 security programs that essentially established a baseline based on 19 1 the kind of intelligence that we knew and the security threat to 2 those entities on a daily basis. 3 When information came in from the intelligence community 4 of some kind of threat which required countermeasures over and 5 above those that were identified, that were available on the 6 baseline, we issued security directives which carried the force of 7 regulation which were established in legislation, and essentially 8 directed very specific countermeasures for the airports and air 9 carriers to implement. 10 Q. All right. Now, those security directives, you keep records 11 of those; is that right? 12 A. Yes. 13 Q. And, and have we shown you security directives from back 14 during the Bojinka plot time that we intend to introduce in this 15 case? 16 A. Yes. 17 Q. After they have been through the CIPA process, the classified 18 information has been redacted; is that right? 19 A. Yes. 20 Q. And were you shown those before Ms. Martin communicated with 21 you? 22 A. Yes. 23 Q. And can those security directives back from 1995 or 1996 or 24 so forth be changed? 25 A. No. 20 1 Q. They are what they are, basically, from back then; is that 2 right? 3 A. Yes. 4 Q. All right. Now -- and so part one of your testimony is to 5 discuss the introduction of those security directives as it 6 relates to the Bojinka plot; is that right? 7 A. Yes. 8 Q. And part two then is to analogize that to what would happen 9 had Mr. Moussaoui told the truth; is that right? 10 A. Yes. 11 Q. Now, in the, preparing your testimony, have I asked you to 12 list the types of security measures that you-all would have put in 13 place had Mr. Moussaoui told the truth? 14 A. Yes. 15 Q. And from that did we create a PowerPoint presentation which 16 you have seen? 17 A. Yes. 18 Q. All right. And that was done before Ms. Martin communicated 19 with you in this case; is that right? 20 A. Yes. 21 Q. Do you know if that's been turned over to the defense weeks 22 ago? I guess you wouldn't know that. That's discovery, I guess. 23 But, anyhow, that PowerPoint was created a couple weeks 24 ago; is that right? 25 A. Yes. 21 1 Q. All right. And has anybody asked you to make any changes or 2 anything like that to that PowerPoint presentation? 3 A. In one of the e-mail messages from Ms. Martin earlier last 4 week, there was a suggestion there might be a countermeasure added 5 to the list. 6 Q. Okay. And do you know -- what was that countermeasure? 7 A. That all passengers be screened at the gate before boarding. 8 Q. Okay. Has anybody asked you to make any changes to your 9 testimony when you come to testify -- well, if you are allowed to 10 testify in this case? 11 MR. MAC MAHON: Objection to the form of the question. 12 Other than the prior answer? Is that -- 13 THE COURT: Well, I am going to sustain the objection, 14 and, frankly, I think there should be no leading. 15 MR. NOVAK: All right. That's fine, Judge. I will step 16 back. That's fine. 17 Q. Let me turn back a little bit and ask you who currently 18 represents you as the agency attorney during this litigation? 19 A. James Whitlow, who is our deputy chief counsel. 20 Q. And how long has Mr. Whitlow represented you in relation to 21 this case? 22 A. I think I asked you or mentioned to you that we would like to 23 have him represent us four or five weeks ago. 24 Q. Okay. Do you want to tell the Court why it is that you 25 indicated that? 22 1 A. Certainly. Early on in this procedure, a lot of the work was 2 involving gathering documents that were within the auspices of TSA 3 now that TSA is the agency of record for the aviation security 4 program. Ms. Martin knew where the documents were and was helpful 5 in gathering them, but as we commenced more witness preparation 6 and we got close to the trial time, I felt it appropriate to have 7 an FAA attorney that I knew for years, that I trusted his 8 judgment, he knew the issues, would represent us directly. 9 Q. And when is it that Mr. Whitlow then became the attorney for 10 the FAA on this case? 11 A. He agreed to do so, again, four or five weeks ago. 12 MR. NOVAK: Now, if I could show the witness 13 Government's Exhibit No. 1, which I have given to Mr. Wood, if I 14 could? And I also think I gave him my extra copy. If I could get 15 my extra set of copies? It is the March 17 memo. 16 Q. Ms. Osmus, I am showing you Government's Exhibit No. 1. Do 17 you recognize that item? 18 A. Yes. 19 Q. Okay. Can you tell us what that item is? 20 A. It is an e-mail from Ms. Martin to Claudio Manno and copying 21 myself from last week. 22 Q. Okay. And can you describe what the contents of that 23 e-mail -- well, first of all, who is the e-mail from? 24 A. Carla Martin. 25 Q. Okay. And at the time that you received that e-mail, was 23 1 Carla Martin representing you, or was Mr. Whitlow representing 2 you? 3 A. By that time, James Whitlow would have been representing us. 4 Q. Okay. And when you -- could you summarize what that e-mail 5 says for the Court? 6 Which we would offer into evidence by the way, we would 7 offer Government's Exhibit No. 1 for purposes of the hearing. 8 THE COURT: Which one is it of the many? 9 MR. NOVAK: It is the March 7th, 2006 e-mail. 10 THE COURT: At 6:32 p.m.? 11 MR. NOVAK: It is 4:38 is the last time, Judge, 4:38 12 p.m. It is addressed to Mr. Manno, with a copy to Ms. Osmus. I 13 believe it was the first one in the stack that we gave to the 14 Court, because I think we gave it to you in chronological order, 15 at least we tried to. 16 THE COURT: 4:31? 17 MR. NOVAK: Yes, at 4:31 p.m. Then there is a follow-up 18 at 4:38. 19 THE COURT: Right. Okay, I have got it. 20 BY MR. NOVAK: 21 Q. I'm sorry, Ms. Osmus -- 22 First of all, Judge, I would offer Government's Exhibit 23 No. 1. 24 THE COURT: It is in. 25 (Government's Exhibit No. 1 was received in evidence.) 24 1 BY MR. NOVAK: 2 Q. All right. Ms. Osmus, could you summarize what the contents 3 of that e-mail are? 4 A. Yes. Ms. Martin summarizes some of the highlights of the 5 opening statement that she felt weren't as accurate as she would 6 have wanted them to have been, and there is approximately half a 7 dozen or so sentences that she reflects in the summaries, examples 8 of things she thought were highlights she wasn't happy about. 9 Q. Okay. Attached to that e-mail -- that e-mail tree, so to 10 speak, was a copy of the transcript of the opening? 11 A. Yes. 12 Q. Now, did you read the, this e-mail? 13 A. Yes. 14 Q. All right. Did you open the transcript and read the 15 transcript? 16 A. I did. 17 Q. You did read the transcript? 18 A. I did. 19 Q. Okay. When did you read the transcript? 20 A. Probably Tuesday evening or Wednesday morning. 21 Q. Okay. 22 THE COURT: Now, Ms. Osmus, let me stop you for a 23 second. 24 THE WITNESS: Yes. 25 THE COURT: Were you at any time before you got this 25 1 e-mail advised about a rule on witnesses that the Court had 2 imposed in this case? 3 THE WITNESS: I'm sorry, I didn't -- 4 THE COURT: Yes. Were you aware that the Court had 5 imposed a rule on witnesses in this case? 6 THE WITNESS: No, I was not. 7 THE COURT: So none of your attorneys, either Ms. Martin 8 or Mr. Whitlow, gave you a copy of that order? 9 THE WITNESS: No. 10 THE COURT: Have you had any discussion with any of the 11 prosecutors before this past week about how you were to conduct 12 yourself as a witness in this case? 13 THE WITNESS: No, not on this topic. 14 THE COURT: Have you been a witness in criminal cases in 15 the past? 16 THE WITNESS: No. 17 THE COURT: You have never been a witness before? 18 THE WITNESS: No. 19 THE COURT: When you were a police officer, did you -- 20 you did not make arrests? 21 THE WITNESS: I, I was involved in some cases involving 22 traffic tickets and that sort of thing. I had not made an arrest. 23 THE COURT: And you never had to come into any court and 24 testify in relation with any of those duties? 25 THE WITNESS: Yes. On a couple of occasions, there were 26 1 appeals to tickets that I had written, and I did appear in court, 2 but it was in the old building, some 25 or so years ago. 3 THE COURT: Before the magistrate judges? 4 THE WITNESS: Yes. 5 THE COURT: All right. And when you worked with the 6 prosecutors in those matters, were you ever instructed about your 7 conduct in terms of talking about what you heard in court with 8 other witnesses or anything like that? 9 THE WITNESS: Not that I recall. 10 THE COURT: How long were you working as what I would 11 call a street-level police officer? 12 THE WITNESS: About two years. 13 THE COURT: Okay. You must have gone to an academy that 14 trained you in how to be a police officer? 15 THE WITNESS: Yes. 16 THE COURT: Do you recall ever being instructed about 17 the protocol for how to go about interviewing witnesses if you 18 were preparing a criminal case? 19 THE WITNESS: No, I don't remember having instruction on 20 that subject. 21 THE COURT: Do you ever recall being told that it is a 22 standard practice for investigators not to interview witnesses 23 together, that is, at the same time, in order to avoid one 24 witness' testimony or information being affected by the other 25 person? 27 1 THE WITNESS: Yes. 2 THE COURT: So you were aware of that practice? 3 THE WITNESS: Yes. 4 THE COURT: All right. Did you have any understanding 5 as to what if any freedom you had to discuss your proposed 6 testimony with other members of the FAA? 7 THE WITNESS: Mr. Novak mentioned to me, and I think 8 Carla Martin did as well early on, it was close hold information; 9 we should not discuss it with others. So I didn't have those 10 discussions with other people. 11 THE COURT: All right. When you got this e-mail from 12 Ms. Martin, what if any reaction did you have to it? 13 THE WITNESS: I was surprised we were being asked to 14 read a fairly lengthy document, frankly. I hadn't expected to do 15 that, but she asked us to do it, and I didn't know there was any 16 reason not to do it, so I did as she asked. 17 THE COURT: When you got the e-mail, did you discuss it 18 with anyone or yourself send it to anyone else? 19 THE WITNESS: I did not. 20 THE COURT: Did you discuss it with anyone? 21 THE WITNESS: My deputy, Claudio Manno, received a copy 22 as well. We remarked on the length of it and printed it so that 23 we could read it, and that was the extent of our discussion. 24 THE COURT: So you and Mr. Manno did talk about it? 25 THE WITNESS: Yes. 28 1 THE COURT: All right. Go ahead, Mr. Novak. 2 BY MR. NOVAK: 3 Q. Could you tell us what the substance of the conversations 4 were with Mr. Manno? 5 A. Just that we were surprised to be looking at a document that 6 lengthy and we were concerned about the time it would take to look 7 at it along with the other preparation that we were doing and then 8 had copies printed so that we would have time to look at it. 9 Q. Other than Ms. Martin, did anybody else ask you to read 10 either the e-mail or the transcript? 11 A. No. 12 Q. Has anybody from the prosecution team, including myself, 13 asked you to read the transcript or discussed this e-mail with 14 you? 15 A. No. 16 Q. All right. Now, could you tell us, did you have any oral 17 conversations with Ms. Martin about the contents of this e-mail? 18 A. I did not. 19 MR. NOVAK: Now, if I could show the witness an Exhibit 20 No. 2, please, which is the March 7th e-mail at 6:32 p.m., Your 21 Honor? 22 THE COURT: I assume there is no objection to that going 23 into evidence? 24 MR. MAC MAHON: No objection, Your Honor. 25 THE COURT: All right. It is in. 29 1 (Government's Exhibit No. 2 was received in evidence.) 2 BY MR. NOVAK: 3 Q. Ms. Osmus, do you recognize the exhibit that's marked as 4 Government's Exhibit No. 2? 5 A. I do. 6 Q. Where do you recognize that -- what is that item? 7 A. It is an e-mail from Carla Martin dated March 7th to myself, 8 and I think I was the only recipient -- I take that back. Claudio 9 Manno was copied on this as well. 10 Q. Okay. And what time was that e-mail? 11 A. Did you ask what time? 12 Q. Yes. What time, ma'am? 13 A. 6:32 p.m. 14 Q. So that's about two, a little less than two hours after the 15 last e-mail tree; is that right? 16 A. Yes, that's right. 17 Q. And could you summarize what the contents of that e-mail 18 were? 19 A. Yes. She told me she didn't expect me to respond to it, but 20 she wanted me to think about what she was saying and reiterated 21 her concern about comments made on opening day and the fact that 22 the defense could exploit some of those comments, and then offered 23 a paragraph in which she summarized what she would have said in 24 the opening. 25 Q. Now, one of the items that she discusses in the opening is 30 1 she discusses a multilayer system of aviation security. Do you 2 see that? 3 A. Yes. 4 Q. All right. Have you previously discussed a multilayered 5 system of aviation security in the past with anybody? 6 A. That is the way we have described the security program. I'm 7 sure I described it that way in discussions with you and 8 Ms. Martin previously. 9 Q. When -- the bullet points that you helped create for the 10 PowerPoint presentation for your testimony which were done -- they 11 were done before these e-mails; is that right? 12 A. Yes. 13 Q. Would you describe the bullet points as addressing a 14 multilayer system of security? 15 A. Absolutely. 16 Q. Could you tell -- describe what you mean by that to the 17 Court? 18 A. Well, in the aviation security arena, we have always built 19 redundancies into the countermeasures that we build. We try to 20 look at every avenue of access to an aircraft that an attacker 21 could use and identify individual countermeasures for each one, 22 and then acknowledging things like the fact that people, who are 23 key parts of implementing countermeasures, are also human and can 24 make mistakes, we build in redundancies as well so that there is 25 not one single point of failure in any set of countermeasures. 31 1 Q. On the bottom of that e-mail where Ms. Martin proposes what 2 her opening statement would have looked like, I would ask you to 3 examine it, and I would ask you to tell the Court what if any 4 difference exists between what is in that -- what her proposed 5 opening statement would have been and what your, what your 6 proposed testimony was going to be before you received that 7 e-mail? 8 A. That's very consistent with the approach I would have taken 9 anyway. 10 Q. All right. If I could show you Government's -- oh, before I 11 do that, let me ask you this: Did you have any conversations with 12 Ms. Martin about this particular e-mail? 13 A. I did not talk to her about it. I did respond to her in a 14 short e-mail sometime later, perhaps that evening or the next 15 morning; I don't recall. 16 Q. We will get to that e-mail in a second. 17 A. Okay. 18 Q. Did you have conversations with anybody else other than 19 Ms. Martin? 20 A. No. 21 MR. NOVAK: All right. Now, could I show the witness 22 Government's Exhibit No. 3, please, which, Judge, is dated for the 23 record March the 8th, and this is 11:52 a.m. is the first e-mail 24 from that tree. 25 THE COURT: All right. Is there any objection? 32 1 MR. NOVAK: I would offer that. 2 MR. MAC MAHON: No objection. 3 THE COURT: All right, it is in. 4 (Government's Exhibit No. 3 was received in evidence.) 5 MR. MAC MAHON: I don't have any objection to any of the 6 e-mails that the government produced -- 7 THE COURT: All right. 8 MR. MAC MAHON: -- coming into evidence. 9 BY MR. NOVAK: 10 Q. Ms. Osmus, I am asking you to take a look at Government's 11 Exhibit No. 3. Is that an e-mail from March the 8th that, the 12 last e-mail, I guess from that tree, 11:52 a.m.? 13 A. Yes. 14 Q. And can you tell us, who is that from? 15 A. That's from Carla Martin to myself in response to a short 16 e-mail that I sent her. 17 Q. Okay. And your earlier e-mail that you sent her, that was at 18 what time? 19 A. That was 8:14 a.m. on Wednesday the 8th. 20 Q. And were you responding essentially to what the -- the last 21 e-mail that we discussed from the previous day? 22 A. Yes, the Exhibit 2. 23 Q. And can you tell us what it is that you told her in your 24 March 8th at 8:14 a.m. e-mail? 25 A. I just wanted her to know I understood her point about 33 1 explaining the countermeasures and how they are a multilayered 2 piece because we had been talking about that for weeks. I also 3 indicated I didn't agree with her suggestion to change one of the 4 countermeasures on the list that we would propose to require 5 100 percent screening, because that's not something we would have 6 done based on the intelligence that we had been talking about. 7 Q. So you told her -- you told her that you would not change 8 your testimony; is that correct? 9 A. Right, that's right. 10 Q. Okay. And do you want to explain to the Court why it is that 11 you told her that you would not change your testimony? 12 A. Well, the countermeasures that were on that list were ones 13 that I had suggested based on the experience I had in the aviation 14 security field. I did not support the one that she suggested. I 15 didn't think it was logistically operationally doable, and it is 16 not one that I would be comfortable testifying about in terms of 17 an accurate one we would have proposed. 18 Q. Okay. You have -- earlier than that, you used the term 19 repeatedly "we," that "we" had discussed this. When you talk 20 about "we," who are we talking about? 21 A. I'm sorry, in which context are you talking "we"? 22 Q. You said "when we had discussed security measures earlier." 23 A. Oh. 24 Q. Who is it that we're talking about? 25 A. That would have been in discussions with Carla Martin, 34 1 yourself, probably Claudio Manno from my office, and myself. 2 Q. Okay. And during that time period, have you been educating 3 me on what a security measure is? 4 A. Slightly, yes. 5 Q. Okay. And has the government asked you to try to describe 6 what if any security measures could have been implemented had 7 Mr. Moussaoui told the truth? 8 A. Yes. 9 Q. Has any member from the prosecution team, including myself, 10 tried to influence you in terms of describing what those security 11 measures would be? 12 A. Not at all. 13 Q. Now, after you rejected the suggestion by Ms. Martin, is that 14 when she replied to your e-mail again on, at 11:52 a.m. then? 15 A. Yes. 16 Q. And can you just summarize what the contents of that e-mail 17 were? 18 A. Yes. She said that not only did she have concerns with the 19 opening statement, but friends of hers in the aviation law 20 community, and she identifies two attorneys representing United 21 and American, also had similar concerns, and then went on to 22 suggest how you should elicit from me and other witnesses 23 information during cross-examination and so forth. 24 Q. Let me ask you this, Ms. Osmus, after Mr. Whitlow replaced 25 Ms. Martin as your attorney, when you have met with the members of 35 1 the government, including myself, for trial preparation, has 2 Ms. Martin attended those meetings? 3 A. She attended all meetings except the last one that we had. 4 Q. Okay. And in the last one, who were you represented by? 5 A. Jim Whitlow. 6 Q. And when did that meeting occur? 7 A. This last Friday evening. 8 Q. All right. Now, could you tell us at the end of that 9 meeting, did you disclose to me the fact that you had received 10 this copy of the transcript? 11 A. Yes. 12 Q. Before you told me about that transcript, had you told 13 anybody else that you had been receiving these e-mails from 14 Ms. Martin? 15 A. No. 16 Q. And Friday evening, was that the first time that you had 17 disclosed to me the fact that you had received these transcripts? 18 A. Yes. 19 Q. Now -- 20 THE COURT: I'm sorry, and you had not told Mr. Whitlow 21 that you had been receiving these communications? 22 THE WITNESS: No. 23 THE COURT: Did Ms. Martin know that Mr. Whitlow -- or, 24 I'm sorry, do you know whether or not she had been advised that 25 Mr. Whitlow was taking over as counsel for the FAA witnesses? 36 1 THE WITNESS: I know that she was advised at some point 2 last week, because she referenced it in a short e-mail to me. I 3 don't know when she was advised. 4 THE COURT: All right. 5 BY MR. NOVAK: 6 Q. Ms. Osmus, would it be fair to say Ms. Martin wasn't happy 7 about the fact that Mr. Whitlow took over for her? 8 A. I haven't talked to her directly. 9 Q. Okay. 10 A. So it would be assumption. 11 Q. All right. Well, let me ask you then on -- for the e-mail 12 that's been marked Government's Exhibit No. 3, did you have any 13 oral conversations with Ms. Martin about that e-mail? 14 A. No, I did not. 15 Q. Did you have conversations with anybody else other than the 16 contents of the e-mail that you had there with Ms. Martin? 17 A. No. 18 Q. Now, could you tell us, did you -- strike that. 19 What if any impact at all have these three e-mails had 20 upon what your purported testimony would be, if the Court would 21 allow you to testify? 22 A. They'd have no impact. 23 Q. Okay. Could you tell us what that is? 24 A. Yes. Although I'm not an attorney and I don't know the legal 25 nuances that Carla Martin was referencing, the substantive 37 1 observations she made about the accuracy of the statement and the 2 one countermeasure proposal which she made didn't make sense to 3 me. 4 I mean, I looked at the statement. It wasn't stated as 5 if someone who grew up in the aviation security environment might 6 have said it, but there was nothing about it that gave me any 7 concern in terms of being contradictory or difficult at all when I 8 would make my testimony. 9 Q. Let me ask you this when it comes to your testimony: Is 10 the -- would the aviation department or would the security at the 11 airports be able to confiscate 100 percent of the knives as they 12 go through the screening checkpoint? 13 A. It is very difficult to find all small knives, so we would 14 look at 100 percent as a goal. Invariably, some would slip 15 through. That's why we would build in redundancies. 16 Q. When you talk about redundancies, does that mean extra 17 layers? 18 A. Yes. That means a second or perhaps even third opportunity 19 to screen passengers. 20 Q. And at any time during the meetings that you have had with 21 the government about your purported testimony, have you said 22 anything other than the fact that less than 100 percent would be 23 achieved with the knives? 24 A. I have not. 25 Q. And would you testify to the same if given the opportunity by 38 1 Judge Brinkema? 2 A. Yes, I would. 3 MR. NOVAK: Now, Judge, I actually have no further 4 questions of Ms. Osmus. 5 THE COURT: All right. Mr. MacMahon? 6 MR. MAC MAHON: Thank you, Your Honor. 7 MR. NOVAK: Let me just have a moment here to get my 8 stuff in order. 9 CROSS-EXAMINATION 10 BY MR. MAC MAHON: 11 Q. Good morning, Ms. Osmus. 12 A. Good morning. 13 Q. What was your understanding of what Carla Martin's role was 14 as an attorney in the time that she was sending you these e-mails? 15 A. When she was sending the e-mails? I knew she was still 16 working with Mr. Novak to do some document review. There was 17 still a document underway that was a substitution document for 18 some classified products that had come from the previous FAA 19 office. I assumed she was working to finalize the PowerPoint 20 presentation and that sort of thing. 21 Q. She was working on your testimony to help the prosecutors, 22 right? 23 A. Not on my testimony, no, I think on some of the exhibits that 24 he would present. 25 Q. She was helping put together the exhibits for your testimony 39 1 at the time that she was sending you these e-mails, right? 2 A. Right, at least reviewing them. 3 Q. Okay. And she was doing that, you thought, as a member of 4 the prosecution team; isn't that correct? 5 A. I don't know that I assume she was part of the prosecution 6 team or not. She had been representing TSA and also doing kind of 7 double duty with FAA as well. 8 Q. Well, you knew she wasn't part of the defense team, didn't 9 you? 10 A. Yes. 11 Q. Okay. And you didn't think she was some private lawyer just 12 involved in the case for some charitable reason, right? 13 A. That's right. 14 Q. You knew she was working with Mr. Novak to help put the case 15 together, right? 16 A. Right. 17 Q. And you -- did you say that you didn't have any conversations 18 with her at all prior to -- meaning oral conversations about the 19 matters in these e-mails? 20 A. Last week I did not. 21 Q. Okay. Did you ask her any questions as to why she was 22 sending you opening statements? 23 A. No, I did not. 24 Q. And when she said, "Please don't respond to this," didn't 25 that alarm you that someone would say that in an e-mail? 40 1 A. Yes, it did. 2 Q. Okay. And why did that concern you? 3 A. I didn't want to have secret discussions with her, which is 4 why I provided the copy of the e-mail to Mr. Novak when I met with 5 him on Friday. 6 Q. Right. But you didn't give it -- you didn't as soon as you 7 saw the e-mail delete it and say: Carla, this is wrong; we all 8 know this is wrong, did you? 9 MR. NOVAK: Judge, I object. That's argumentative. 10 THE COURT: No, I am going to permit it. Overruled. 11 BY MR. MAC MAHON: 12 Q. You didn't do that, did you? 13 A. I did not do that. 14 Q. Did you think about doing that? 15 A. I considered talking to Carla about it. I decided not to. 16 Q. But you knew, you knew in your heart that it was wrong, 17 didn't you? 18 A. I didn't know that it was a violation of the rule, because I 19 wasn't aware of the rule. I thought it was an odd communication, 20 and I didn't want to continue by responding to her until later. 21 Q. Did it occur to you to call Mr. Novak and say -- before you 22 read that e-mail and say: Is there a rule, is there a reason that 23 I should be worried about reading this or not? 24 A. No, because I knew I would talk to him in a day and a half or 25 so. 41 1 Q. And you didn't think to call your own lawyer and ask him 2 whether it was appropriate for a witness in a capital case to be 3 reading testimony before they testified? 4 A. No, because I assumed since she was an attorney working on 5 this case, she knew what the rules were. 6 Q. And Mr. Novak and no one at his office before the trial had 7 given you any written directions telling you how to conduct 8 yourself, what the rule on witnesses was, or anything else, right? 9 A. That's right. 10 Q. They were just focused on preparing your testimony. That was 11 the whole focus, correct? 12 A. That was largely the focus. 13 Q. And you don't -- you are not going to tell the judge that the 14 information that Carla Martin has sent to you isn't going to help 15 you testify in this case, are you? 16 A. It is not going to help me testify in this case. 17 Q. Well, before you received that information, you didn't know 18 what the government's arguments were in this case, did you? 19 A. I knew generally the approach that was likely to be taken. 20 Q. Did you know that the government was going to -- had argued 21 that they would have kept anyone with a knife off of a plane had 22 Mr. Moussaoui said something? 23 A. I had not heard those words before. 24 Q. Right. And you wouldn't have supported that testimony, 25 right? 42 1 A. Right. That's why I talked earlier about the multilayered 2 approach. 3 Q. All right. And so what Ms. Martin was doing was preparing 4 you, you agree, for the cross-examination that you were going to 5 have to go through in this courtroom, correct? 6 A. That's what she was attempting to, I believed. 7 Q. All right. And you didn't know what -- you never testified 8 as a witness before; is that what you said? 9 A. Not in a criminal prosecution. 10 Q. Have you been cross-examined before? 11 A. In other settings, EEO cases and that sort of thing. 12 Q. Okay. And you told her you got the message about how to 13 prepare to be cross-examined, didn't you? 14 A. In my e-mail I said I understood her point. I mean -- 15 Q. You said that you were prepared, right? 16 A. Right. 17 Q. And because of what she told you, you were now prepared for a 18 cross-examination by the defense lawyers in this case in a way 19 that you wouldn't have been if you hadn't got the information from 20 her; that's correct, isn't it? 21 A. No, it is not. My intent was to tell her I had been prepared 22 before. Of course, that would be the way I would have described 23 it, as I had in several meetings that she had been present in. 24 Q. So when you said: I agree, we need to be careful in 25 describing these measures, I will be prepared, you didn't mean 43 1 that? 2 A. I meant I will be prepared, because I was, and I had been 3 prior to seeing her note. 4 Q. So your testimony in this case was never intended to be that 5 there were measures that could have been put in place before 9/11 6 that could have stopped the attacks; is that what you're telling 7 me? 8 A. I would never say we could guarantee it 100 percent. It 9 would certainly have had an impact on the ability of the attackers 10 to do what they did on 9/11. 11 Q. That's what you think, right? 12 A. That's what I'm quite certain of. 13 Q. In your testimony did you prepare to tell about other 14 walk-ins that had come in and threatened to blow up aircraft 15 before? 16 A. No, I wasn't. 17 Q. Okay. You know that that happened in 1998, that someone came 18 in and said they were going to blow up the World Trade Center with 19 a plane, right? 20 A. I'm not aware of what you are mentioning. 21 THE COURT: I'm sorry, I can't hear you. Can you speak 22 up a little? 23 THE WITNESS: I'm sorry, I'm not aware of what you are 24 mentioning without a little bit more fact associated with it. 25 BY MR. MAC MAHON: 44 1 Q. Do you know that somebody came in in 1998, the FBI office in 2 New York -- 3 MR. NOVAK: Your Honor, I object to this. This is not 4 relevant at all to what her testimony is. He is throwing things 5 out here. 6 THE COURT: I think this is beyond the scope of today's 7 hearing. I will sustain the objection. 8 MR. MAC MAHON: Thank you, Your Honor. 9 Q. Did you know before you received Ms. Martin's e-mail any of 10 the promises of fact that the government was going to make to this 11 jury? 12 A. Not with that kind of specificity, no. 13 Q. Did you know it just generally, what the argument was going 14 to be? 15 A. I knew generally the approach that would be taken. 16 Q. And was it your understanding that the approach was going to 17 be that it might have kept these people off the plane? Was that 18 the approach you understood? 19 A. I don't know that I thought about it in that specific 20 language. We certainly had talked about the ability of the 21 measures that we could have put in effect, of having a definite 22 possibility of stopping part of the attack, if not all of it. 23 Q. So that was -- your prepared testimony was that it was 24 possible that the attacks could have been prevented? 25 A. No. As I said earlier, I think it is very likely. 45 1 Q. Who did the PowerPoint presentation for you? 2 A. It was Mr. Novak's office. 3 Q. Did Carla Martin help you do that, too? 4 A. I don't know who physically worked on it with Mr. Novak's 5 folks. 6 Q. Did Ms. Martin have an office over at the prosecutor's, in 7 the building next door here? 8 A. I don't know. 9 Q. Did you ever meet with her there? 10 A. We met in my office a couple of times. I think we did meet 11 in Mr. Novak's office at least once. 12 Q. When was that? 13 A. Several weeks ago. I can't give you the date off the top of 14 my head. 15 Q. Did you discuss your -- after you received these e-mails, 16 anything with Mr. Manno about what you received from Carla Martin? 17 A. He was copied on a couple of them, so we both mentioned to 18 one another we had received them. As I said earlier, we -- the 19 first one involving the transcript, we said yes, we saw it, 20 commented on the length of it. 21 Q. You don't remember, did you have any conversations with him, 22 though? 23 A. No, just the fact that we had received it, nothing 24 substantive. 25 Q. So is your testimony that having been told by Ms. Martin 46 1 weaknesses in the government's case that, as she said, the defense 2 could drive a truck through, that that hasn't impacted your 3 testimony at all? 4 A. No, because I know factually what I know. And any other 5 context wouldn't have changed that. 6 Q. That doesn't help you at all, to know how the trial is going 7 or what arguments the government has made before you testified? 8 A. No, it really doesn't. 9 MR. MAC MAHON: Nothing further, Your Honor. 10 THE COURT: Any redirect? 11 MR. NOVAK: No, Your Honor. 12 THE COURT: All right. 13 MR. NOVAK: May the witness step down? 14 THE COURT: Let me just think. That's fine. 15 Ms. Osmus, I want to make sure you do not discuss 16 anything that you have been asked here in court with anyone other 17 than your counsel, and your counsel -- who I think is in court, 18 correct? 19 MR. WHITLOW: Yes, Your Honor. 20 THE COURT: All right. Are you representing all these 21 witnesses or just Ms. Osmus? 22 MR. WHITLOW: Ms. Osmus and the other two FAA witnesses. 23 THE COURT: All right. I'm going to require that you 24 compartmentalize that information; that is, you can only talk with 25 Ms. Osmus about what she has said and not what the other two 47 1 witnesses have said, and I am letting you stay in court for all of 2 your clients, but you understand compartmental discussions only. 3 So that means you can't talk with Mr. Manno or anybody 4 else about what has happened in this courtroom today; do you 5 understand that? 6 THE WITNESS: Yes, I do, Your Honor. 7 THE COURT: All right. Thank you. You are excused to 8 go. 9 (Witness excused.) 10 MR. NOVAK: Claudio Manno, please. 11 THE COURT: All right. Is there a hard copy of the 12 PowerPoint presentation? 13 MR. NOVAK: Yes. I think actually you already have it, 14 Judge. 15 THE COURT: Well, I mean, I have several thousand 16 exhibits up here. 17 MR. NOVAK: I know. 18 THE COURT: I am going to want -- 19 MR. NOVAK: As do we. It is Exhibit OG-117. I think it 20 is 117. 21 THE COURT: All right. 22 MR. NOVAK: And if you don't have a copy, Judge, we will 23 get you a copy. 24 And I just would like to put on the record we could find 25 out the date of production of that in discovery. I will tell you 48 1 it was most definitely before any of these e-mails. It was 2 certainly before jury selection. There has been various versions, 3 because there was a typo in one, and we have been giving them to 4 Mr. Yamamoto, who is their attorney on this evidence. 5 THE COURT: All right. 6 CLAUDIO MANNO, GOVERNMENT'S WITNESS, AFFIRMED 7 MR. NOVAK: May I proceed, Your Honor? 8 THE COURT: Yes, sir. 9 DIRECT EXAMINATION 10 BY MR. NOVAK: 11 Q. Sir, could you identify yourself for the Court, stating your 12 first and your last name -- and spelling your first and your last 13 names? Excuse me. 14 A. My name is Claudio Manno, C-l-a-u-d-i-o, Manno, M-a-n-n-o. 15 Q. Do you want to tell the Court by whom you are employed? 16 A. I'm employed by the Federal Aviation Administration. 17 Q. In what capacity? 18 A. I'm the deputy assistant administrator for security and 19 hazardous materials. 20 Q. And how long have you had that job? 21 A. Approximately one year. 22 Q. Okay. And are you the deputy to Ms. Osmus? 23 A. Yes, I am. 24 Q. And before you had that job, could you tell us what job you 25 had before that? 49 1 A. I was the assistant administrator for intelligence at TSA. 2 Q. Okay. And that's the Transportation Safety Administration; 3 is that right? 4 A. Security Administration. 5 Q. Or Security Administration. 6 And how long did you have that job? 7 A. Approximately a year and a half. 8 Q. All right. And before that, where did you work? 9 A. At the FAA I was the assistant -- I was the director of the 10 Office of Intelligence. 11 Q. And that happened as of when? 12 A. August of 2001. 13 Q. And before August of 2001, were you the deputy for that -- to 14 that director? 15 A. Yes, I was. 16 Q. And how long did you serve as the deputy? 17 A. From 1997 through 2001. 18 Q. And when you were the deputy, who was the director of that 19 office? 20 A. Pat McDonnell. 21 Q. Would it be fair to say that after the attacks in 2001, TSA 22 took over the security measures at the airports? 23 A. Yes, the security functions moved from the FAA to TSA. 24 Q. So you went -- so you followed that to TSA for a while, and 25 you came back to FAA; is that correct? 50 1 A. Right. The Office of Intelligence became -- for FAA became 2 the Office of Intelligence at TSA. 3 Q. Now, a couple months ago you were asked to testify on behalf 4 of the government in this case; is that right? 5 A. Yes. 6 Q. Okay. And you have actually been subpoenaed to appear here; 7 is that right? 8 A. Yes. 9 Q. And have you had an ability to discuss what your proposed 10 testimony would be with myself and agents from the United States 11 Government? 12 A. Yes. 13 Q. All right. And have you been asked to discuss intelligence, 14 what the FAA intelligence was going into the summer of 2001? 15 A. Yes. 16 Q. Did that include intelligence about the Bojinka plot? 17 A. Yes. 18 Q. Also, did you have an occasion on September the 5th of 2001 19 to receive a cable from the FBI about Mr. Moussaoui? 20 A. Yes, I did. 21 Q. And what did you do when you received that cable? 22 A. We prepared a memo that provided a synopsis of the key points 23 that were in the FBI cable and for our senior management, and we 24 provided it to our senior management in the FAA. 25 Q. Okay. The cable that came over from the FBI, is that now in 51 1 hard copy form? 2 A. Yes. 3 Q. All right. The, the memo that you wrote to the, your 4 supervisors after you received the cable about Mr. Moussaoui, 5 about the cable that you received from the FBI, is that also in 6 hard copy? 7 A. Yes. 8 Q. All right. And has anybody made any efforts to change those 9 documents in any fashion? 10 A. No. 11 Q. Now, could you tell us who it is that currently represents 12 you in connection to this case? 13 A. James Whitlow, who is the deputy chief counsel of the FAA. 14 Q. And how long approximately is it that Mr. Whitlow has 15 represented you? 16 A. Approximately a week and a half, two weeks. 17 Q. All right. And before that, who was the attorney that 18 represented you? 19 A. I'm not sure what you mean by represent. 20 Q. Well, as a -- well, let's put it this way: As an employee of 21 the FAA, did you have counsel present when you would meet, you 22 know, with members of the prosecution team? 23 A. Yes. 24 Q. All right. And who was that person before Mr. Whitlow? 25 A. Carla Martin. 52 1 Q. All right. And did you-all make a request to switch from 2 Ms. Martin to somebody else, to Mr. Whitlow? 3 A. Yes. 4 Q. And could you tell the Court why it is that you-all elected 5 to switch from Ms. Martin to Mr. Whitlow? 6 MR. MAC MAHON: Objection to relevance, Your Honor. 7 THE COURT: Oh, I think it is relevant. I am letting it 8 in. 9 BY MR. NOVAK: 10 Q. Do you want to tell the Court why it is that you decided that 11 you wanted to switch away from Ms. Martin a couple weeks ago? 12 A. Yes. Ms. Martin was not an FAA attorney, and I'm an FAA 13 employee, and so is Ms. Osmus, and we wanted an FAA attorney to, 14 to represent us. 15 MR. NOVAK: If I could show the witness Government's 16 Exhibit No. 1, if I could, please? 17 THE COURT: Why had you had this woman representing you 18 for all these many months and at the last minute decided you 19 wanted an FAA attorney? Was there something else going on besides 20 just the label of her employment? 21 THE WITNESS: Well, Your Honor, part of it was that in 22 our opinion, Ms. Martin sometimes had a tendency to go off on 23 tangents that, that really were not all that relevant and was 24 really taking up a lot of the time that we needed basically to do 25 our everyday job, and so we really preferred to have an FAA 53 1 attorney that could just, you know, get to the point and tell us 2 just the facts and stick to that. 3 THE COURT: All right. 4 BY MR. NOVAK: 5 Q. Maybe just to follow up on that point, is there a personality 6 issue going on with Ms. Martin between you-all? 7 A. I don't know that it is a personality issue. Again, it is 8 just that she was taking up quite a bit of our time. 9 Q. Okay. And when you say that, what do you mean by that? 10 A. Simply wanting to come over and take an hour or two to 11 discuss things when we really didn't have the time, we had other 12 meetings scheduled, and we really didn't think it was all that 13 pertinent, particularly since the important issues we knew would 14 have to be discussed with the U.S. Attorney's Office, with you. 15 Q. Okay. And -- well, I will show the witness Exhibit No. 1. 16 Did we do that, Mr. Wood? Okay. 17 Do you recognize the item that's been marked Exhibit 18 No. 1, Mr. Manno? 19 A. Yes. 20 Q. And is that an e-mail tree, of which you received e-mails 21 from Ms. Martin? 22 A. Yes. 23 Q. Along with that e-mail tree, was there a copy of the 24 transcript from March the 6th? 25 A. Yes. 54 1 Q. All right. First of all, did you read the e-mail -- this 2 e-mail tree that was sent to you by Ms. Martin? 3 A. Yes, I skimmed it. 4 Q. Okay. And did you open the attachment and read the 5 transcript? 6 A. Yes, I read part of the transcript. 7 Q. And how long was that transcript, do you recall? 8 A. It was something like 129 pages. 9 Q. By the way, did you have time to read all this stuff that 10 Ms. Martin kept sending over to you? 11 A. No. 12 Q. Is that one of the reasons why that you-all kind of got tired 13 of her bothering you all the time? 14 A. Correct. 15 Q. And to the best of your recollection, could you tell the 16 Court what contents of the transcript it is that you read? 17 A. Well, what happened was I first actually got it, it was late 18 in the day, and I got it on my BlackBerry. So to try to open an 19 attachment 129 pages long, it just wasn't possible, so I asked our 20 secretary the next day to print it off and just give it to me in 21 print. 22 So when I got it, I think the next day or maybe even the 23 day after, I read about -- skimmed about 70 pages of it. 24 Q. Do you know what part of those 70 pages it is that you 25 skimmed? 55 1 A. It was the opening, the opening statements from the trial. 2 Q. All right. Did you have an occasion to skim any of the 3 testimony that was given that day? 4 A. No. 5 Q. All right. Now, could you tell us why it is that you did 6 that, why it is that you skimmed the transcript and read the 7 e-mail? 8 A. Well, the e-mail that I got from Carla said something about 9 read this, you might be interested in this. 10 Q. All right. Do you know if Ms. Martin had discussed with 11 Mr. Whitlow whether you should be reading this, this stuff? 12 A. I don't know. 13 Q. Did you ever discuss with Mr. Whitlow the e-mails that you 14 were receiving from Ms. Martin? 15 A. No, I did not. 16 Q. All right. Now, did any member of the prosecution team, 17 including myself, ever ask you to read the transcript or read 18 blurbs of the opening statement? 19 A. No. 20 Q. Now, in addition to that -- did you have any oral 21 conversations with Ms. Martin about this e-mail? 22 A. Not that I recall, no. 23 Q. Did you have conversations with anybody else in your office, 24 including Ms. Osmus, about this e-mail or the transcript? 25 A. I think I had a discussion with Ms. Osmus. 56 1 Q. Do you want to tell the Court what it is that you discussed 2 with Ms. Osmus? 3 A. I don't remember the specifics other than, did you happen to 4 read the transcript? The discussion was not in depth at all about 5 what was in it, just that it was interesting. We didn't think it 6 was particularly pertinent to what we would be testifying about, 7 however. 8 Q. Well, when you say that, Mr. Manno, we have told you what it 9 is that we intend to ask you questions about; is that right? 10 A. Yes. 11 Q. Do you have any role as the intelligence officers or various 12 jobs with the FAA in terms of security directives and what 13 operationally occurs in terms of countermeasures? 14 A. No. There is a clear division between assessment of the 15 threat and the threat portion of security directives, which is 16 what our office did, and the countermeasures that were applied 17 that were done by the operations staff. 18 Q. You are familiar with what a security directive is; is that 19 right? 20 A. Yes. 21 Q. Do you want to just explain what a security directive is to 22 the Court? 23 A. Yes. A security directive is the vehicle -- was a vehicle 24 that the FAA directed air carriers and airports to implement or to 25 change security procedures with regards to airports and airlines, 57 1 and it typically would have a threat portion that described what 2 the threat was and then a second part that explained what the 3 security measures that were to be -- that the air carriers or 4 airports were directed to apply. 5 Q. Now, would you have any role in creation of a security 6 directive, either one of those two parts? 7 A. The threat portion, the intelligence portion. 8 Q. That's where you-all tell the airline industry, this is why 9 you have to implement these security measures; is that right? 10 A. Correct. 11 Q. So, for example, did you have an occasion to assist in 12 writing the threat part or the information part of security 13 directives as it related back in the days of the Bojinka plot? 14 A. Not me directly necessarily but our analysts would, and I 15 would have had a role in reviewing and approving the threat 16 language, yes. 17 Q. You were a supervisor at that time; is that right? 18 A. Yes. 19 Q. Somebody else would actually to do the work; you would 20 massage it; is that correct? 21 A. Right. 22 THE COURT: I'm sorry, what's the time frame? Explain a 23 little bit more the procedure about how that goes about being 24 done. 25 THE WITNESS: Preparing a security directive? 58 1 THE COURT: Yes. 2 THE WITNESS: What would typically happen is we would 3 get an item of information, intelligence from the intelligence 4 community, let's say CIA. Typically it would be classified. So 5 we would identify it as something that is a concern, for example, 6 a new method of attacking aviation or a specific plot or something 7 like that. 8 We would work with the originating agency, because FAA 9 was not a producer of intelligence; we were a consumer. We 10 received it from the intelligence community. So we would work 11 with the originating agency to get what was known as a sanitized 12 version so that it would be unclassified to protect sources and 13 methods but yet still have enough detail so that the recipients, 14 the airlines and the airports, would understand what the threat 15 was. 16 We would then, we would provide the threat information 17 to our office of policy and our office of operations, who were 18 actually responsible for coming up with countermeasures and 19 directing the air carriers to implement them. 20 THE COURT: And roughly was there a normal time frame in 21 which this type of process would take? 22 THE WITNESS: It would depend on, it would depend on the 23 information. In some cases it might take a couple days to get the 24 sanitization from CIA or whomever, State Department, and -- but 25 normally we could get them out, you know, in a matter of hours if 59 1 it was an immediate threat. In some cases the coordination may 2 take a little bit longer, a day or so, but typically it was just 3 a, you know, a day or two or less. 4 THE COURT: All right. 5 MR. NOVAK: May I proceed, Your Honor? 6 THE COURT: Yes. 7 BY MR. NOVAK: 8 Q. Mr. Manno, the questions that Judge Brinkema just asked you, 9 is that part of what your prospective testimony is going to be in 10 this case, how you-all gather intelligence and then you assimilate 11 that into part of a security directive? 12 A. That's correct. 13 Q. Now, have you had an occasion to help create bullet points 14 for a PowerPoint presentation that the government intends to 15 introduce about a prospective security directive if Mr. Moussaoui 16 had told the truth? 17 A. Yes. 18 Q. Okay. And what part of the PowerPoint presentation have you 19 had a role in helping create? 20 A. The threat portion. 21 Q. And was the PowerPoint presentation created before you 22 received any of these e-mails from Ms. Martin? 23 A. Yes. 24 Q. And has the e-mail -- did any of these e-mails -- we're going 25 to go over a couple more in a second -- but have any of her 60 1 e-mails, did they have any influence whatsoever upon what that 2 PowerPoint presentation looks like, or have you made any 3 adjustments to that? 4 A. No. 5 Q. Now, again, you have identified that you are not going to 6 talk about security measures, you are going to talk about 7 intelligence. And I notice in this particular e-mail, Exhibit No. 8 1, that there is a reference to a fellow named Murad. Can you 9 tell the Court who Murad is? 10 A. Murad was one of the, one of the people that the Ramzi Yousef 11 was associated with in trying to carry out the Bojinka plot. 12 Q. And could you tell us -- there is information related about 13 flying planes into buildings. Could you tell us what it is that 14 Murad, what intelligence that you had before this e-mail about 15 Mr. Murad and such a plot? 16 A. We had received a report that Murad had allegedly had a 17 discussion with Ramzi Yousef where he had mentioned the 18 possibility of taking a small airplane, packing it with 19 explosives, and crashing it into CIA headquarters. 20 Q. Now, what if any impact about your testimony would this 21 e-mail have that you received from Ms. Martin about the Murad 22 situation? 23 A. I don't think it would have any, because the facts were as I 24 knew them and as it was reported, so I don't, I don't see it. 25 Q. How many years ago did the Murad intelligence occur? 61 1 A. I can't say exactly, but it was in the '90s. '97, '98, 2 something like that. 3 Q. The Bojinka plot, did it happen back in 1995? 4 A. 1995, correct. 5 Q. And then this is a follow-up to that Bojinka plot; is that 6 right? 7 A. Correct. 8 Q. And that intelligence that you have from back, you know, 9 eight, nine years ago, is that fixed? I mean, you have it in 10 reporting; is that right? It is not something oral that switches 11 around? 12 A. No, there were actual intelligence community reports that 13 reported it. 14 Q. Now, other than the Murad reference that's in the top e-mail 15 in Exhibit 1, the rest of the contents of this e-mail, do they 16 discuss security measures at the airport, what Ms. Martin's view 17 is on some of our comments, Mr. Spencer's comments? 18 A. Yes. 19 Q. And, again, you are not going to provide any testimony on 20 security measures; is that right? 21 A. That's correct. 22 Q. Because that's not your job, is that right? 23 A. It wasn't my role. 24 Q. All right. I am showing you Exhibit No. 2, if I could, 25 please. Do you recognize that e-mail, Mr. Manno? 62 1 A. Yes. 2 Q. And is that an e-mail from Ms. Martin to your boss, 3 Ms. Osmus? 4 A. Yes. 5 Q. And were you copied on that? 6 A. Yes. 7 Q. Do you know if you read that e-mail or not? 8 A. I did read it. 9 Q. All right. And could you just summarize basically the import 10 to that e-mail from Ms. Martin? 11 A. Well, it seems to talk about measures that would be taken at 12 the -- at the gate, at the airport, with regards to the percentage 13 of passengers that would undergo additional screening with 14 handheld metal detectors. 15 Q. And, again, you would have no role in security measures; is 16 that right? 17 A. No. 18 Q. Is there anything in that e-mail about the intelligence or 19 anything like that that you could possibly be testifying about in 20 this case? 21 A. It basically talks about security measures. 22 Q. Now, showing Exhibit No. 6, if I could. Which I would offer 23 into evidence, Your Honor. 24 THE COURT: Which one is 6? 25 MR. NOVAK: 6 is the one that's, the first e-mail is 63 1 dated Wednesday, March the 8th, 2006, at 11:38 a.m. to Mr. Manno. 2 It says Subject: Moussaoui transcripts. 3 THE WITNESS: Okay. 4 THE COURT: Okay. 5 (Government's Exhibit No. 6 was received in evidence.) 6 BY MR. NOVAK: 7 Q. Do you recognize that e-mail? 8 A. Yes, I do. 9 Q. Did you -- and that's from Ms. Martin again; is that right? 10 A. Yes. 11 Q. Did you read that e-mail? 12 A. Yes. 13 Q. Now, part of that document discusses substitutions involving 14 the CIPA process; is that right? 15 A. Yes. 16 Q. Because you are in the intelligence role, some of the 17 information you have is classified; is that right? 18 A. That's correct. 19 Q. And throughout this process, you have had to work with us to 20 work with the Court to go through the CIPA process to get 21 declassified versions of things; is that right? 22 A. Correct. 23 Q. And we have spoken on a number of occasions to try to 24 accomplish that; isn't that right? 25 A. Correct. 64 1 Q. All right. Now, in addition to discussions about the 2 substitute that was going to occur here for trial, are there also 3 discussions in paragraph 2 about the intelligence world? 4 A. Yes. 5 Q. All right. Could you tell -- identify what those items are 6 that are in that middle paragraph? 7 A. Well, it talks about the lack of information sharing. It 8 mentions the so-called Phoenix memo, that FAA did not get the 9 Phoenix memo. I think that's about it. 10 Q. All right. Mr. Manno, let me ask you this: Since 9/11 has 11 happened, you have had an occasion to testify a number of times, 12 is that right, not just in this case; is that right? 13 A. On two occasions. 14 Q. Okay. And do you want to tell the Court where it is that you 15 have testified? 16 A. I testified before the Joint Intelligence Committee, the 17 House and Senate Intelligence Committee, and before the 9/11 18 Commission. 19 Q. And do you know if there were transcripts that were prepared 20 for your testimony from each of those two times? 21 A. Yes, there were. 22 Q. And in addition to that, have you submitted written 23 statements in response to either Commissions or Congress or 24 anything like that? 25 A. Yes, both a statement and then follow-on written responses to 65 1 questions at the Commission and the Joint Intelligence Committee 2 had. 3 Q. And would it be fair to say that during all of those 4 investigations, there are similar questions about what the FAA 5 knew before 9/11 and why it is that you didn't receive certain 6 information? 7 A. Yes. 8 Q. And you have answered those questions ad nauseam; is that 9 right? 10 A. Many times. 11 Q. And, and have you helped the government gather these 12 materials, which in our world we called Jencks material, to all 13 these transcripts and statements so we could turn it over to the 14 defense? 15 A. Yes. 16 Q. And that, in fact, has been done; isn't that right? 17 A. Yes. 18 Q. So before Ms. Martin ever got involved with you, there was 19 already a long record about the things that you are going to 20 testify about; is that right? 21 MR. MAC MAHON: Your Honor, Mr. Novak is just 22 testifying. 23 THE COURT: Well, this -- 24 MR. MAC MAHON: This is a bunch of leading questions in 25 a row. 66 1 MR. NOVAK: But, Judge, it is certainly relevant, the 2 fact that -- 3 THE COURT: This hearing clearly is not run by the 4 standard rules of evidence. This is an auxiliary hearing, where 5 we're just trying to get a complete record, and I don't think this 6 question is improper. So I will overrule the objection. 7 BY MR. NOVAK: 8 Q. All right. I would ask you to answer the question if you can 9 remember it, because I can't remember my question now. 10 A. I can't either. 11 Q. All right. 12 THE COURT: Do you want the court reporter to read it 13 back? 14 MR. NOVAK: I am thinking it isn't a very good question 15 anyhow, so I will go on to something else. 16 Q. I think the point is there is a lengthy record of all the 17 questions that you have been asked about what the FAA knew before 18 9/11; is that right? 19 A. That's correct. 20 Q. And I gather, would your testimony that you have given on 21 multiple occasions or in written statements, would that change 22 because of the e-mail that you have received from Ms. Martin on 23 March the 8th? 24 A. No. 25 Q. Did you have any oral conversations with Ms. Martin about 67 1 this e-mail on March the 8th? 2 A. Not that I recall. 3 Q. All right. If I could -- let's see here. 4 THE COURT: Did you speak to anyone, and when I say 5 speak, I mean communicate, so either in person, by telephone, 6 e-mail, with your BlackBerry, or in any other respect with anybody 7 about the contents of this March 8th e-mail, I mean, the business 8 about the Phoenix memo and the briefing of DCI Tenet? 9 THE WITNESS: The only, the only person I may have 10 spoken to is Lynne Osmus. 11 THE COURT: And you are just not sure? 12 THE WITNESS: To be quite honest, I never really focused 13 in detail on any of these e-mails. So it would typically be a 14 discussion like: Did you see that e-mail from Carla? And that 15 would be about the end of it. 16 THE COURT: All right. 17 BY MR. NOVAK: 18 Q. Would one of those reasons that you don't really pay that 19 much attention is Ms. Martin is the kind of person that sends you 20 e-mails all the time? 21 A. Correct. 22 Q. And you are a pretty busy guy; is that right? 23 A. Correct. 24 Q. Is that one of the reasons why you got tired of having her as 25 your lawyer? 68 1 A. Yes. 2 MR. NOVAK: Judge, I think I have no further questions. 3 May I just speak to Mr. Spencer for a second? 4 THE COURT: Yes. 5 MR. NOVAK: I'm sorry, Judge, just one question. 6 Q. Could you tell us, could you just tell the Court what if any 7 effect these three e-mails from Ms. Martin have had upon what your 8 prospective testimony would be if Judge Brinkema would allow you 9 to testify here? 10 A. In my opinion, none at all, because I can only testify to the 11 facts as I know them, and that's it. 12 Q. By the way, have you and I spoken about this other than me 13 saying good morning to you this morning, have I spoken to you at 14 all since last week? 15 A. No. 16 MR. NOVAK: Thank you. I have no further questions. 17 CROSS-EXAMINATION 18 BY MR. MAC MAHON: 19 Q. Good morning, Mr. Manno. 20 A. Good morning. 21 Q. How many meetings have you had with Mr. Novak to prepare your 22 testimony in this case? 23 A. We had one meeting last Friday, one telcon, and I think one 24 other meeting before that. 25 Q. And you knew he was a prosecutor in this case, right? 69 1 A. Yes. 2 Q. And how many meetings with Ms. Martin did you have to discuss 3 your testimony in this case? 4 A. Most of the meetings that I had with Ms. Martin were to 5 discuss the material that was being provided, the redactions, the 6 substitutions. 7 Q. And you knew there was a criminal case pending against 8 Zacarias Moussaoui, right? 9 A. Yes. 10 Q. Okay. And did Mr. Novak or anyone in the Department of 11 Justice ever tell you that there was a rule on witnesses in this 12 case? 13 A. No. 14 Q. Do you know what a rule on witnesses is? 15 A. I now know. 16 Q. Did you know before this hearing today what a rule on 17 witnesses was? 18 A. I learned it over the weekend. 19 Q. Okay. You never testified in a case before? 20 A. No. 21 Q. Never been a witness in a case of any sort, starting today? 22 A. No. The only two times I have testified was before the 23 Commission and the Joint Intelligence Committee. 24 Q. Okay. You never received any written communications from any 25 government lawyers saying you have been subpoenaed in the 70 1 Moussaoui case, don't discuss your testimony with anybody, don't 2 read the newspaper, try to stay away from the press coverage? 3 A. No. 4 Q. And you have been reading all the stories in the paper about 5 this case? 6 A. Some, up until I was told not to. 7 Q. When was that? 8 A. Last Friday. 9 Q. How many newspaper articles did you read about the case 10 before then? 11 A. Since the trial started, I read The Washington Post, so a 12 couple. 13 Q. Do you watch TV stories about the case as well? 14 A. Yes. 15 Q. How many of those did you watch? 16 A. Four or five. 17 Q. Now, when you saw in Ms. Martin's e-mail that she didn't want 18 anybody to respond to her in writing, you knew that to mean that 19 she knew she was doing something wrong, right? 20 A. I have no idea what she was thinking. 21 Q. Well, what did you think when you got an e-mail from a 22 government lawyer telling you to read testimony in a criminal case 23 that you had been subpoenaed to testify in? 24 A. Again, I had no idea that we couldn't do that. 25 Q. It didn't strike you as odd that a government lawyer was 71 1 mailing you transcripts in a criminal case for which you had 2 received a subpoena? 3 A. No. 4 Q. So you just merrily went ahead and read it, right? 5 A. I skimmed it, yes. 6 Q. How long did it take you? 7 A. 30 minutes, an hour, something like that. 8 Q. And what Ms. Martin was trying to do here, you know, was to 9 prepare your testimony, help you prepare to testify in this case, 10 correct? 11 A. I don't know what Ms. Martin was thinking. 12 Q. What did you think when you read it, when she said you should 13 be prepared to counter certain arguments? 14 A. I read it. I thought it was interesting, but as I said 15 previously, it really doesn't -- didn't matter to what I would be 16 testifying to. 17 Q. Had you been prepped by Mr. Novak to testify about the 18 Project Bojinka? 19 A. Yes. 20 Q. Had you been prepped to testify about intelligence case files 21 about threats in 1998 to crash planes into the World Trade Center? 22 A. I believe so, yes. 23 Q. Okay. And in that case, in that instance, there were no 24 countermeasures taken at all by the FBI, were there, or the FAA? 25 A. I can't speak to countermeasures. 72 1 Q. Were there security directives issued? 2 A. I'd have to go back and look. I don't know. 3 Q. Were you prepared to answer how long it took the FAA to react 4 after you learned that a threat had been made to fly a plane into 5 the World Trade Center in 1998? 6 MR. NOVAK: Judge, I object. I object. We're far 7 afield now on what his testimony is. It is not relevant at this 8 point. 9 THE COURT: I am going to permit this. Overruled. 10 THE WITNESS: I'm sorry, could you ask that again? 11 BY MR. MAC MAHON: 12 Q. Were you prepared to testify how long it took the FAA to 13 react, to issue a security directive, after it learned in 1998 of 14 a threat to fly an airplane into the World Trade Center? 15 A. I think I previously testified before the two other 16 commissions that we did not have any information about a plan to 17 fly a plane into the World Trade Center in 1998. 18 Q. You haven't seen any intelligence case files to that effect? 19 A. Well, there were a couple of ICFs, intelligence case files, 20 that we opened based on various threats to aviation, and in each 21 of those cases those were run to ground and discredited, so as far 22 as I can recall, there were not any additional measures beyond 23 what is normally in place that were implemented, but I'd have to 24 look at the intelligence case files to recall exactly which one 25 you are talking about. 73 1 Q. But you were warned by Ms. Martin that the defense was asking 2 questions about the government knowing before 9/11 about flying 3 planes into buildings, right? 4 A. Yes. 5 Q. And that was one of the situations that now you know to be 6 prepared to answer, correct? 7 A. I'm sorry, I don't understand your question. 8 Q. Because of what she told you, you know that the defense is 9 going to inquire of you about government knowledge about planes 10 flying into buildings, right? 11 A. Yes. 12 Q. And there was a threat in 1998 made to fly a plane into the 13 World Trade Center, and it is in one of your files, right? 14 A. If you say so. 15 Q. Well, you don't know? 16 A. As I said, there were two or three ICFs that if you showed 17 them to me, I would be able to talk to them, in which there 18 were -- and I don't specifically remember the World Trade Center 19 part of it, but where the facts were coordinated with the 20 originating agencies, they tracked it -- they tracked them down, 21 they followed up, and were determined not to be credible. 22 Q. Okay. And were you prepared to testify in this case as to 23 how long it took the agencies to run it to ground and determine 24 whether the threat was credible? 25 A. Yes. It was a couple weeks. 74 1 Q. In that case you are sure it was a couple of weeks? 2 MR. NOVAK: Judge, I object. We're getting into the 3 substance of the testimony. 4 MR. MAC MAHON: I'm trying to find out -- 5 MR. NOVAK: This hearing is simply to find out whether 6 there has been influence on his testimony, not to get a preview of 7 the entire direct examination or cross-examination. This is not a 8 freebie discovery hearing. This is an evidentiary hearing with a 9 purpose. 10 THE COURT: Well, I understand that, but I think the 11 defense has a right to probe how this witness was being prepared 12 to respond to cross-examination, and one of the issues here is 13 whether Ms. Martin's e-mail may have tainted or warped how the 14 witness would be preparing for that, so I am going to allow it. 15 MR. MAC MAHON: Thank you, Your Honor. 16 Q. And with respect to the Murad information, you know that -- 17 you agree with me that Ms. Martin was tipping you off that the 18 Project Bojinka information was something that the defense was 19 going to bring out if you testified in this case, right? 20 A. That would be a logical assumption for me to make. 21 Q. All right. It was just an assumption then, but now you know 22 it is a fact, right? 23 A. Yes. 24 Q. And, in fact, you were asked by her to go pull unclassified 25 information on Murad to be prepared, right? 75 1 A. I don't recall that, but I did not do that. 2 Q. Okay. You didn't look at Exhibit 1? When she asked Matt to 3 pull the unclassified information, who is Matt? 4 A. I believe Matt is Matt Kormann. He is an analyst at TSA. 5 Q. Okay. And have you spoken to Matt since March 11th when you 6 received these e-mails? 7 A. No. 8 Q. So you don't know whether Mr. Kormann has pulled information 9 to respond to that claim, right? 10 A. No. What I know is I did not receive anything from Matt. 11 Q. Okay. Did you know before you read the government's opening 12 statement the specific arguments that they were going to make in 13 this case? 14 A. Only what was in the newspapers. 15 Q. And your testimony to the judge is you would have received no 16 benefit as a witness from having read the opening statements in a 17 trial you are about to testify in; is that true? 18 A. Again, all I could do is answer the questions based on the 19 facts as I know them. 20 Q. Do you know why Ms. Martin was sending letters to lawyers 21 involved, representing private clients? 22 A. I have no idea. 23 Q. Did that concern you at all? 24 A. I don't even know that I noticed. Which one are you 25 referring to? 76 1 Q. What is the -- who is the -- what is the law firm of Condon & 2 Forsyth? 3 A. I have no idea. 4 Q. Do you know whether they represent the airlines in litigation 5 pending in New York? 6 A. No, I don't. 7 Q. Did you read her e-mail where she said the lawyers in New 8 York were surprised at some of the things that the government said 9 in the opening? 10 A. I don't know that I even noticed that. As I said, most of 11 her e-mails, I just skimmed them and went on to other things. 12 Q. You knew Ms. Martin was a lawyer working with the prosecution 13 in this case, didn't you? 14 A. Yes. 15 Q. And you knew that when you got this e-mail, right? 16 A. Yes. 17 Q. And did you read her e-mail, which is in Exhibit -- you say 18 you skimmed the e-mails, the exhibit, I believe it starts on March 19 6th. No, that's not the one I'm looking at. Excuse me, Your 20 Honor. 21 It is where Ms. Martin gave you the highlights of the 22 opening statements. 23 A. Which exhibit is it? 24 Q. I am trying to -- with the Court's indulgence, Your Honor. 25 THE COURT: It is the one of March 8th, isn't it? 77 1 MR. MAC MAHON: That's okay, Your Honor, I'm sorry, I 2 had the wrong one. 3 BY MR. MAC MAHON: 4 Q. Exhibit 6, if you would, please. Did you read Exhibit 6? 5 A. Yes. 6 Q. You didn't skim this one, did you? 7 A. I skimmed all of them. 8 Q. But you read, you read this one, and you remember what was in 9 it, don't you? 10 A. I'm rereading it now. Which part do you want me to -- 11 Q. You can take your time and read the whole thing, Mr. Manno. 12 A. Okay. Okay. 13 Q. You got that e-mail a week ago, right? 14 A. The 8th. 15 Q. It was less than a week ago, right? Do you remember reading 16 it? 17 A. Yes. 18 Q. And you didn't skim this one, you read this one in detail, 19 didn't you? 20 A. Like I said, I get so many e-mails that, you know, I can't 21 say that I sat down and read it in, you know, spent a long time on 22 it, no. 23 Q. And connected to this e-mail was a substitution for 24 classified information in this case, right? 25 A. Yes. 78 1 Q. And you did read that, I bet, right? 2 A. Yes. 3 Q. You read that very closely, correct? 4 A. The issue of the substitution? 5 Q. Yeah. 6 A. Yeah, the issue of the substitution was classified 7 information that I could expect to be, receive questions on. 8 Q. All right. And the subject line for a document -- was the 9 document classified when it was sent to you on e-mail? 10 A. Which document? 11 Q. I'm looking at the "from Claudio Manno to Carla Martin," the 12 bottom of Exhibit 6, March 8th, 2006, 10:44 a.m. You are 13 discussing a classified document there, right? 14 A. I'm sorry, I am trying to find which one you are talking 15 about. March 8th? 16 Q. At the bottom of the string it says okay, incredible, three 17 lengthy assessments. Do you see that? 18 A. Pardon me one second while I find it. Yes. 19 Q. What's the subject line on that e-mail? 20 A. Moussaoui transcripts. 21 Q. Doesn't have anything to do with the classified information 22 that you were talking about, does it? 23 A. The subject does not. The message itself does. It has to do 24 with classified assessments. 25 Q. Moussaoui transcripts weren't classified information, were 79 1 they? 2 A. I think -- it looks to me that what happened with this is as 3 the various e-mails were going back and forth that the subject was 4 not changed, even though there were different subjects that were 5 being discussed. 6 Q. Right. But when you get e-mails that address classified 7 information, you read them closely, don't you? 8 A. My particular interest in this would have been the 9 substitution, the three classified assessments that were whittled 10 down to the two pages of the substitution. 11 Q. Mr. Manno, when she sent you the e-mail that's on the string 12 above this that's March 8th, 2006, 11:38, you knew that she was 13 trying to prepare you for both direct and cross-examination in 14 this case, didn't you? 15 A. All I knew was what this e-mail said. Whether she was trying 16 to prepare me or what she was doing, I can't say. 17 Q. Did you read where it said "David is going to have to go over 18 the lack of information sharing with you on direct exam" -- 19 A. Yes. 20 Q. -- "to blunt the blow of having the defense raise it for the 21 first time on cross, thus weakening your credibility"? 22 A. Yes. 23 Q. You remember reading that, don't you? 24 A. Yes, I do. 25 Q. And what was she talking about there? She was talking about 80 1 your testimony in this case, right? 2 A. Presumably, yes. 3 Q. And she was telling you that you had to be prepared to talk 4 about the Phoenix memorandum on direct, right? 5 A. Yes. 6 Q. And you were going to go talk to Mr. Novak about that, 7 weren't you? 8 A. Well, presumably Mr. Novak would have talked to me about it 9 when he did the witness preparation, so I didn't talk to Mr. Novak 10 about that. 11 Q. Is there something on your PowerPoint that deals with the 12 Phoenix memorandum? 13 A. I'd have to look at it. 14 Q. You don't recall sitting here today? 15 A. No, no. Actually, no. You mean on the, on the one that was 16 prepared before 9/11? 17 Q. The PowerPoint -- you said, I thought on direct, that you had 18 prepared testimony to give in this case that involves some 19 exhibits as well, right? 20 A. Yes. 21 Q. And on none of those exhibits and in none of your prepared 22 testimony was there anything about the Phoenix memorandum to be 23 discussed at all, that's correct, isn't it? 24 A. I don't believe so, no. 25 Q. Maybe I didn't ask the -- there was nothing in your prepared 81 1 testimony about the Phoenix memorandum at all, right? 2 A. If you are talking about the security directive, that's 3 correct, there was not. 4 Q. In all of your testimony, whether it is slides, otherwise, 5 everything that you were going to do sitting in that chair looking 6 at this jury that Mr. Novak prepared for you, the words "Phoenix" 7 and "memorandum" were not in it at all, right? 8 A. I don't believe so, no. 9 Q. And there wasn't anything in there either about the fact that 10 the secretary -- the director of Central Intelligence had been 11 briefed on Mr. Moussaoui in August of 2001, right? 12 A. Correct. 13 Q. And that's a subject that Ms. Martin wanted you to be 14 prepared to answer on cross-examination, right? 15 A. Yes. 16 Q. And now you are, aren't you? 17 A. I would have been prepared to discuss that no matter what, 18 because the Phoenix memo was the subject both in front of the 19 Joint Intelligence Committee and the 9/11 Commission. 20 Q. Of your testimony? 21 A. Yes. I was asked about that. 22 Q. And she tells you to make sure that you say we didn't get the 23 information but it didn't matter, essentially, right? 24 A. Where does it say that? 25 Q. "But it doesn't matter because we did get the information, we 82 1 were following up on it, and he was in custody at the time, so we 2 knew he himself posed no immediate threat to aviation. The 3 question will be raised did you have any reason to believe that 4 Moussaoui was part of a conspiracy?" Right? 5 A. Yes. 6 Q. Now you are prepared to answer that question in court? 7 A. I was prepared for that before. 8 Q. "Did you think about this? Did you do anything about this? 9 Did you follow up on this?" Those are her questions to you, 10 right? 11 A. Yes. 12 Q. And you read all of that? 13 A. Yes. 14 Q. You didn't skim this part of it either, right? 15 A. No. 16 Q. And then she says that the defense will exploit the fact that 17 the FAA was not clued in to what was going on, correct? 18 A. Yes. 19 Q. Was that part of your direct examination from Mr. Novak, that 20 the FAA wasn't clued in? 21 A. Not that I recall. 22 Q. Did it concern you that a lawyer for the FAA was saying that 23 in an e-mail to you in the middle of a capital case where the 24 government was arguing the contrary? 25 A. You know, again, I have no idea what was going through 83 1 Ms. Martin's mind. The only thing I can tell you is that I would 2 have been prepared. I was prepared to discuss all of this, even 3 prior to receiving her e-mail. 4 Q. "What you need to assert was that we did not necessarily need 5 to wait." You read that too, didn't you? 6 A. I'm sorry, where are you now? 7 Q. I am still right in that same March 8th memo. "We acted 8 independently. Indeed we had a statutory mandate." Correct? 9 A. Yes. 10 Q. You read that part of it too, right? 11 A. Yes. 12 Q. And you had to be prepare, she suggested, to say that whether 13 the IC had any information to share on the subject or not, right? 14 A. Yeah. Quite frankly, I don't know what she meant by that. 15 Q. Were you told about the rule on witnesses before or after you 16 received this e-mail? 17 A. After. 18 Q. How long after? 19 A. I learned of it this past weekend. 20 Q. Did you call Mr. Novak after you received this March 8th, 21 2006 e-mail to tell him what had happened? 22 A. No. 23 Q. Weren't concerned at all about that? 24 A. As I said, I didn't know about the rule, so there would be no 25 reason for me to call him. 84 1 THE COURT: Mr. Manno, before Friday, March 10, that's 2 the day you were being, meeting with Mr. Novak, correct? 3 THE WITNESS: Yes. 4 THE COURT: Before that date, when was the last time you 5 had had any communication with any of the prosecutors in this 6 case? 7 THE WITNESS: We had, Ms. Osmus and I had a telephone 8 conversation with Mr. Novak, I don't know the exact date, but it 9 was perhaps a week prior to that. 10 THE COURT: The two of you were on the phone at the same 11 time? 12 THE WITNESS: Yes. 13 THE COURT: You and Ms. Osmus and Mr. Novak, the three 14 of you were talking at the same time? 15 THE WITNESS: I was in a room with -- Ms. Osmus was 16 actually talking to him about the measures, and I was talking to 17 him about the threat portion of the directive. 18 THE COURT: And you were in the conversation together, 19 in other words, you were hearing what she was saying to Mr. Novak 20 and she could hear what you were saying to him? 21 THE WITNESS: Yes. 22 BY MR. MAC MAHON: 23 Q. And this -- 24 THE COURT: I'm sorry, wait. When was that meeting or 25 that phone conference? Was it after February 22nd? 85 1 THE WITNESS: I don't know for sure, Your Honor. I 2 can't say. 3 THE COURT: How long did that conversation go on? 4 THE WITNESS: 15 minutes. 5 THE COURT: Was there anybody else listening in on the 6 conversation or participating in it? 7 THE WITNESS: Not that I recall, Your Honor. 8 MR. MAC MAHON: If I can follow up on that, Your Honor. 9 BY MR. MAC MAHON: 10 Q. Was that conversation before you received any of these 11 e-mails from Ms. Martin? 12 A. I think so, yes. 13 Q. And by how much time? You must have some -- do you have any 14 way, any frame of reference to tell us? 15 A. Perhaps a week, week and a half, something like that. 16 Q. A week and a half before -- I guess the first one of these 17 e-mails would be March 7th; is that correct? 18 A. Yes. 19 Q. So you would place this conversation with Mr. Novak and 20 Ms. Osmus in the ten-day approximate time period before that? 21 A. Approximately. 22 Q. Now, did Ms. Martin ever suggest to you any information about 23 the actual threat assessment that you did send out on September 24 5th of 2001? 25 A. Did she suggest? 86 1 Q. Right. Well, let me ask you this: In your preparation for 2 the trial in this case, were you asked to read the document that 3 you produced on September 5th, 2001? 4 A. Yes. 5 Q. And were you prepared to compare what Agent Samit had sent 6 you -- did you see what Agent Samit had sent you before that? 7 A. I didn't receive anything from Agent Samit. 8 MR. MAC MAHON: Let me just consult with counsel, Your 9 Honor, one second. 10 BY MR. MAC MAHON: 11 Q. Did you get something in that September 5 time frame from a 12 man named Mike Maltbie? 13 A. I don't recall. 14 MR. MAC MAHON: I have nothing further, Your Honor. 15 THE COURT: Mr. Manno, other than the phone 16 conversation, the teleconference that you described with you and 17 Ms. Osmus and Mr. Novak, had you been questioned by Mr. Novak or 18 any of the other prosecutors either in person or by telephone in 19 the presence of any other FAA employee? In other words, had you 20 and Ms. Osmus or you and somebody else been questioned together? 21 THE WITNESS: No, I think we had one prior meeting with 22 Mr. Novak. 23 THE COURT: Before this, before the teleconference? 24 THE WITNESS: Yes. And -- but we met separately with 25 him. In other words, I was not there when Ms. Osmus was talking 87 1 to him, and she was not there when I was talking to him. 2 THE COURT: All right. Mr. Novak? 3 MR. NOVAK: May I proceed? 4 THE COURT: Yes. 5 REDIRECT EXAMINATION 6 BY MR. NOVAK: 7 Q. Mr. Manno, you talked about the telephone conversations. 8 Was that about the logistics for the PowerPoint presentation? 9 A. It was a bullet point discussion, yes. 10 Q. Did I ask you what was the easiest way to present it, either 11 in a hard copy or a bullet point? 12 A. I believe you asked Ms. Osmus that. 13 Q. All right. Was there any substantive discussion in that 14 telephone conversation about what your testimony was, or was it 15 logistics on how to present it in court in terms of this 16 PowerPoint conversation? 17 A. It was logistics. 18 Q. All right. Now, let me ask you, is there anything about that 19 conversation that you had on the telephone about logistics that 20 affected your testimony, that affected Ms. Osmus was also on the 21 phone about the logistics of this presentation? 22 A. No. 23 Q. And would it be accurate to say that when we have had 24 substantive discussions with you, you have done that separately; 25 is that right? 88 1 A. Correct. 2 Q. Now, these e-mails which are Exhibits 1, 2, and 6, is there 3 anything in these e-mails that you didn't know about before you 4 received the e-mails? For example, did you know about Murad 5 before you received the e-mail? 6 A. Yes. 7 Q. Did you know about the Phoenix memo before you received the 8 memo? 9 A. Yes. 10 Q. On Exhibit 6, that block of questions that Mr. MacMahon just 11 went over with you, have those questions, those very same 12 questions or similar questions been asked of you repeatedly by the 13 various commissions that you have testified in front of? 14 A. Probably, yes. 15 Q. The thrust has been what the FAA knew; is that right? 16 A. Correct. 17 Q. Now, before receiving these e-mails, were you prepared to 18 testify from my questions about the Bojinka plot? 19 A. Yes. 20 Q. So did anything about these e-mails affect your testimony 21 about that? 22 A. No. 23 Q. Was there anything about, in these e-mails, about the 1998 24 attack on the World Trade Center or the plan to fly planes into 25 buildings in the World Trade Center that Mr. MacMahon was talking 89 1 about? Do you see that anywhere in there? 2 A. I don't believe so. 3 Q. Would it be fair to say that your various appearances in 4 front of the Commissions and your statements and such that you 5 have talked about, repeatedly the question has been about what the 6 FAA knew about planes flying into buildings? 7 A. Yes. 8 Q. Could you tell us have these e-mails or any of your contact 9 with Ms. Martin affected your testimony in any way, if Judge 10 Brinkema gives you the opportunity to testify? 11 A. No. 12 MR. NOVAK: Thank you. I have no further questions. 13 MR. MAC MAHON: Very briefly, Your Honor. 14 THE COURT: Yes. 15 RECROSS EXAMINATION 16 BY MR. MAC MAHON: 17 Q. Just a brief follow-up, Your Honor. 18 The meeting you had to discuss logistics with Mr. Novak, 19 how long ago was that? 20 A. It was approximately a week, week and a half before the 21 meeting last Friday. 22 Q. Okay. And he didn't tell you anything about a rule on 23 witnesses that Judge Brinkema had entered in this case? 24 A. No. 25 MR. MAC MAHON: Nothing further, Your Honor. 90 1 THE COURT: All right. Mr. Manno, you may step down and 2 leave the courtroom. You are not to discuss your testimony or 3 anything you have heard in this courtroom with anyone other than 4 counsel, even with Ms. Osmus you are not to be discussing 5 anything. Thank you. You may go. 6 (Witness excused.) 7 THE COURT: Mr. Novak, you would know, what was the date 8 of that teleconference with Mr. Manno and Ms. Osmus? 9 MR. NOVAK: It would be at least a couple weeks before 10 March the 6th. And I say that, Judge, because the substance of 11 the conversation was -- should I approach the podium? 12 THE COURT: Yes. 13 MR. NOVAK: Judge, I will proffer to you that originally 14 what we were thinking of doing before we did the bullet point was 15 writing out a security directive that looked like what a security 16 directive would look like, thinking that would be the best way to 17 explain this to the jury, since we intend to use other security 18 directives. 19 And the point was is that Mr. Manno or Ms. Osmus and 20 Mr. Manno were not comfortable with it, they didn't think that was 21 a good idea in terms of how to portray that. That's when we 22 switched to the PowerPoint presentation. The PowerPoint 23 presentation took a couple weeks to prepare. We have given 24 multiple versions of that to the defense, so it would be a couple 25 weeks before we gave the first version of the PowerPoint. 91 1 It is going to be sometime in February. I don't know. 2 I can find, if you want, I can try to find that out, Judge. 3 THE COURT: Well, when the Court issued the February 4 22nd order, what if anything did your office do with it vis-a-vis 5 all your witnesses? Did you send copies of the order to your 6 witnesses or in any way instruct them to be aware that there was 7 this order and they better make sure they complied with it? 8 MR. NOVAK: Judge, Mr. Spencer is whispering something 9 to me. 10 THE COURT: Mr. Spencer, do you want to address that 11 issue? I mean, you are sort of the captain of the team. You may 12 address it. 13 MR. SPENCER: If you would like me to, Your Honor. This 14 witness -- is a trial conduct order. I think it is the same order 15 we go through in every trial that we have in this court. I mean, 16 specifically, the only exception is that this names the two case 17 agents that were exempted from that but that again is something we 18 use by, go by, live with in every trial. 19 My practice, Your Honor, and I followed it here, is to 20 orally advise witnesses about this in preparing them right before 21 trial but it is the conduct of what happens during the trial. And 22 it is not something that we specifically go into all the time and 23 warn witnesses. And that's no different in this case than it has 24 been in every other case I have tried in this court and before 25 you, Your Honor. 92 1 I typically do not hand out a written warning on that 2 issue. And I never have since practicing here, Your Honor. 3 THE COURT: Well, I mean, if nothing else, the lesson to 4 be learned from this case, certainly an extremely important case, 5 to avoid the potential of this problem and to certainly make the 6 government's position stronger, is to make sure that every witness 7 is aware of the parameters of a rule on witnesses, if one is 8 issued ahead of time, as it was in this case. 9 You know, often it is done the morning of the trial, the 10 jury is impaneled, there is an oral request for rule on witnesses, 11 and the normal practice is it is given. 12 This case is a little unusual in part because of the 13 publicity and, you know, we had discussed some of these things in 14 some of our many conferences, was the need to make sure that, 15 again, the integrity of the proceedings was protected as much as 16 possible, so that's why the order was out some two weeks before 17 the trial began, week and a half. 18 MR. SPENCER: It is a lesson learned in a difficult 19 manner, Your Honor. And I can tell you also that it will be a 20 practice now to pass this out in writing to agency counsel. 21 THE COURT: Yeah. All right. Why don't we take the 22 morning break and we will reconvene at 11:30. 23 (Recess at 11:15 a.m., until 11:30 a.m.) 24 (Defendant in.) 25 THE COURT: Counsel, I've been reminded by the off-site 93 1 locations that if you are not speaking from the podium, they can't 2 hear what you're saying, so just be careful. The temptation when 3 we're less formal is to just speak from where you're sitting, and 4 you can't do that, all right? All right. 5 The next witness? 6 MR. NOVAK: Judge, the next witness is going to be Lee 7 Longmire. I want to tell the Court he's identified as a 8 government witness. We frankly really didn't have any intention 9 of calling him. We just put him on as an emergency witness, but 10 he's one of the ones that received the e-mails. We want you to, 11 you know, obviously if you want to, we want you to hear what it is 12 that -- whether he was polluted or not. I can tell you we don't 13 really have any intention of calling him. 14 THE COURT: Well, let me find out from the defense, had 15 he been listed as a possible defense witness, or were you prepared 16 to cross-examine this witness? 17 MR. MAC MAHON: Well, we're prepared to cross all of 18 them that come up, but I don't think that there's any -- if 19 Mr. Longmire is going to be taken off the government's list, I 20 don't think we need to inquire of him today. 21 THE COURT: There's no need for that. 22 MR. NOVAK: I just didn't want you to think we were 23 trying to hide something, Judge, that we're not calling him for 24 that reason. I want -- 25 THE COURT: That's fine. Then Mr. Longmire will not be 94 1 called in any capacity, whether in direct or rebuttal, so we can 2 move on then. 3 The next four witnesses are defense witnesses. 4 MR. NOVAK: Yes, Judge. Mr. Pat McDonnell, please. 5 THE COURT: And, Mr. MacMahon, do you want to question 6 first since this would have been one of your witnesses? 7 MR. MAC MAHON: No, Your Honor, the government can go 8 first. That's fine. 9 THE COURT: All right. 10 PATRICK McDONNELL, DEFENDANT'S WITNESS, AFFIRMED 11 MR. NOVAK: May I proceed, Your Honor? 12 THE COURT: Yes, sir. 13 DIRECT EXAMINATION 14 BY MR. NOVAK: 15 Q. Sir, can you state your full name, both your first and your 16 last names, and spelling both, please? 17 A. Patrick, P-a-t-r-i-c-k, McDonnell, M-c-D-o-n-n-e-l-l. 18 Q. Mr. McDonnell, can you tell the Court how it is that you're 19 employed now? 20 A. I'm retired. 21 Q. Okay. And how long have you been retired? 22 A. About a year and several months. 23 Q. And do you live in another state now? 24 A. Yes, I do. 25 Q. Now, before you retired, could you tell us where it is that 95 1 you worked? 2 A. Well, I was contracting for the FAA and the TSA for a few 3 years, 2002, 2003, and part of 2004. 4 Q. And before you were a contractor for them, could you tell us 5 who it is that you worked for full time? 6 A. I was director of intelligence at the FAA. 7 Q. And how long did you have that position? 8 A. Approximately ten years. 9 Q. And did you leave that position in August of 2001? 10 A. No, I left the end of May of 2001. 11 Q. Excuse me. And could you tell us if the reason that you were 12 brought back as a contract employee, was that to help the, the FAA 13 and the TSA with the various commissions that were investigating 14 the 9/11 attacks, the JICI, as we call it, the 9/11 Commission, 15 and all of that? 16 A. Primarily, yes. 17 Q. So your job for those couple of years was basically to 18 assemble documents and help FAA-TSA people to answer questions 19 basically; is that right? 20 A. Correct. 21 Q. Now -- and was one of the people that you worked with during 22 that time period Carla Martin? 23 A. Yes. 24 Q. And can you, could you tell us what was the nature of the 25 relationship that you had with Carla Martin? 96 1 A. Well, Carla was at that time working, as I remember, as part 2 of a legal counsel's office at FAA, and she focused on security 3 issues. And there were occasional times when we would have reason 4 to discuss certain items, yeah. 5 Q. Now, directing your attention back to February, early part of 6 February of this year, did you have an occasion to be contacted by 7 Ms. Martin and told that you'd been identified as a potential 8 defense witness in this case? 9 A. Yes. 10 Q. All right. And, thereafter, did you agree to, to meet with 11 me and agents on February 15 of 2006? 12 A. Yes. 13 Q. All right. And at that time, were you interviewed in the 14 presence of Ms. Martin about what it is that -- what your job used 15 to be? 16 A. Yes. 17 Q. All right. Now, I want to direct -- if we could show the 18 witness Exhibit No. 4, please? 19 THE COURT: What is Exhibit No. 4? 20 MR. NOVAK: It's the e-mail that's dated March 8. The 21 entire "to" address is blocked out, Judge, because it's his 22 name -- or it's his e-mail address, I'm sorry. 23 It's the one that says "Pat, here are the opening 24 statements." 25 MR. MAC MAHON: The Court's indulgence, Your Honor? 97 1 THE COURT: Yes, sir. 2 MR. MAC MAHON: Thank you. 3 MR. NOVAK: I think Mr. MacMahon has it, Judge. Have 4 you found it? 5 THE COURT: No, I will. I've got these memorized at 6 this point. I've got it. 7 MR. NOVAK: Okay. 8 Q. Mr. McDonnell, I'm asking you to take a look at that item. 9 Do you recognize that item? 10 A. Um-hum. 11 Q. Is that a yes? 12 A. Yes. 13 Q. And where do you recognize that item from? Is that an e-mail 14 to you? 15 A. Yes. 16 Q. And who is that from? 17 A. I believe it was from Carla Martin, yeah. 18 MR. NOVAK: Judge, I would move to introduce Exhibit No. 19 4, if I could. 20 THE COURT: All right, it's in. 21 (Government's Exhibit No. 4 was received in evidence.) 22 BY MR. NOVAK: 23 Q. And did you read this e-mail? 24 A. I did at the time, yeah. 25 Q. Okay. Have you had -- received any other e-mails from 98 1 Ms. Martin other than that since March the 6th? 2 A. Oh, wait a second now. This was dated March the 8th. 3 No, I read this. 4 Q. You did read this? 5 A. Yes, I did. 6 Q. Okay. Have you -- did you receive any other e-mails last 7 week or this week from Ms. Martin? 8 A. Yes, I did. 9 Q. You did? 10 A. Um-hum. 11 Q. What other e-mails did you receive? 12 A. I received an e-mail that had an attachment to it, I believe, 13 and I apparently opened the e-mail, but I did not read the 14 attachment. 15 Q. Okay. Do you know what that e-mail said? 16 A. No, because I didn't open the attachment. 17 Q. Okay. I mean, do you know what the -- you didn't open the 18 attachment. Do you know what the e-mail itself said, though? 19 A. I can't recall specifically, no. 20 THE COURT: I'm sorry, was that e-mail before or after 21 the one that's marked Exhibit 4? 22 THE WITNESS: I believe it was afterwards. And I 23 remember receiving an e-mail -- I recall receiving an e-mail that 24 I believe was subsequent to this one that had an attachment to it, 25 and I don't remember exactly, there wasn't much text in it, but I 99 1 did not open the attachment. I didn't have time. I was skimming 2 my e-mail. 3 MR. NOVAK: Judge, I would just say I don't have that 4 e-mail. I was told that I was given all the e-mails. Apparently, 5 I was not given all the e-mails. 6 THE COURT: Do you remember what the heading -- what the 7 subject line -- 8 THE WITNESS: Not really, Your Honor. I was, you know, 9 quickly scanning my e-mail. I mean, it is possible that I'm 10 confusing what -- with this one here perhaps, but I thought I had 11 a subsequent one with an attachment. This one here, apparently 12 the text is right in the e-mail. There is no attachment. 13 BY MR. NOVAK: 14 Q. The other possible e-mail that we talked about with the 15 attachment, do you recall any of the substance in that e-mail? 16 A. No, not in the e-mail itself. I don't believe there was much 17 in the actual e-mail, but there was something attached to it which 18 I didn't open. 19 Q. Okay. 20 A. That's my recollection. 21 Q. Okay. Do you recall any other -- receiving any other e-mails 22 from Ms. Martin? 23 A. No. 24 Q. Now -- 25 A. Oh, wait, no, I did. I received one on, I believe it was the 100 1 11th, which I believe was Saturday. 2 Q. Okay. 3 A. Okay. And that e-mail reminded me -- and this is why I think 4 I remember it this way -- is that there was some information about 5 a court order about reading or listening to anything in the press 6 that was issued by the Court. 7 Q. Okay. 8 A. And, and acknowledged that a particular e-mail that she had 9 sent me previously was -- there was a prior phone conversation to 10 this e-mail where I was asked did I open the, the e-mail? And my 11 response was to her, as it is to you right now, that I opened the 12 e-mail but not the attachment to the e-mail. 13 Q. So -- 14 A. And the text of the one I'm remembering now from the 11th had 15 to do with, you know, that there's a court order not to read 16 anything regarding what's out in the public regarding the trial. 17 Q. Okay. So the point of that e-mail was to tell you not to 18 read anything? 19 A. Right. And acknowledge a phone call with her, you know, a 20 previous phone call that I was not to from that point on read 21 anything about the trial. 22 Q. Okay. And when did you have a phone call with Ms. Martin? 23 A. Probably Friday or Saturday. 24 Q. Okay. And do you want to tell us what the substance of the 25 conversation was with Ms. Martin? 101 1 A. Well, there were several conversations last week, you know, 2 and I may get them a little bit jumbled, but I believe the very 3 last one from Carla Martin was, have I been, you know, reading or 4 seeing anything in the press regarding the trial? 5 Q. And what was your response? 6 A. My response was yes. I said it was hard to, you know, we 7 have CNN and the news network is on. Occasionally, something 8 regarding the trial would come up. So, you know -- and then she 9 said something to the effect: Well, don't. Stop, you know, 10 listening to anything regarding what's on the press. 11 And then I received, after that phone call, the e-mail 12 that I'm mentioning here that is not this e-mail. 13 Q. Okay. 14 THE COURT: Now, you said you had several phone calls 15 with Ms. Martin during that week? 16 THE WITNESS: Yes. The previous phone calls during the 17 week, the substance of those had to do with certain documents that 18 might be introduced in trial and the classification of those 19 documents and, you know, questioning whether I thought those 20 documents could still be considered classified information. 21 THE COURT: Was this over a regular telephone line? 22 THE WITNESS: Well, there was no substance to the -- 23 just the documents: Do you remember such and such a document? 24 Was anything in that document in your opinion classified? 25 And I said no. 102 1 MR. NOVAK: Judge, I think I know what he's talking 2 about, if I can just ask a couple of questions here. 3 THE COURT: All right. 4 BY MR. NOVAK: 5 Q. Mr. McDonnell, you at one point during your job as director 6 of the intelligence for the FAA, you went around and gave 7 briefings to airline companies about possible threats to security; 8 is that right? 9 A. Correct, yes. 10 Q. And those briefings were unclassified; is that right? 11 A. Yes. 12 Q. These phone calls that you had with Ms. Martin over the last 13 week, were they about the fact that other agencies have now 14 decided to classify certain parts of those? 15 A. Yes. 16 Q. And she was upset with those other agencies; is that right? 17 A. Yes. 18 Q. Did you explain to her at all the fact that there's some 19 intelligence community people view this as the mosaic theory, that 20 how things could fit together making something that was previously 21 unclassified when you had it now classified today? 22 A. Well, I did not mention that to her, no. 23 Q. All right. 24 A. No. 25 Q. But was -- the thrust of those earlier conversations that you 103 1 had with her was about unclassified material that now was going to 2 be classified; is that right? 3 A. Correct. 4 Q. And she was upset with that; is that right? 5 A. Yes. 6 Q. All right. Did you have any -- during -- putting aside the 7 conversations about that, did you have conversations with her 8 about what your purported testimony would be if the defense were 9 to call you as a witness in this case? 10 A. No. Any conversation like that took place in your office 11 with her present. 12 Q. Okay. And that is when I asked you questions about what you 13 did as the director of intelligence; is that right? 14 A. Um-hum, yes. 15 Q. Okay. Now, after that meeting on February 15 of 2006, did 16 you have any other conversations about what your potential 17 testimony could be with Ms. Martin? 18 A. No. 19 Q. All right. Was there anything in this, well, either the 20 e-mail that we've showed you, Exhibit No. 4, or these other two 21 e-mails that you have received that would influence your testimony 22 if the defense elected to call you as a witness? 23 A. No. And there was, as far as I can remember, only one other 24 e-mail other than this one. 25 Q. And, by the way, your job when you were the director of 104 1 intelligence, I guess by definition, dealt with intelligence; is 2 that right? 3 A. Correct. 4 Q. Did the FAA divide responsibilities between intelligence and 5 operations, those that would put in place countermeasures to 6 combat threats? 7 A. Yes. 8 Q. Did you have a role in creating those type of 9 countermeasures? 10 A. Only as an advisor. When certain countermeasures were being 11 proposed, they would ask myself or the people in my division 12 whether they thought that that would appropriately counter the 13 threat that we were defining in our analysis. 14 Q. Because you had the knowledge of what the threat is, is that 15 right? 16 A. Exactly. 17 MR. NOVAK: All right. Judge, if I could just have one 18 moment, please? 19 Q. And I'll just ask you then, Mr. McDonnell, is there anything 20 about your interaction with Ms. Martin since March 6, either by 21 telephone or by e-mail, that would affect what you would testify 22 to if the defense were to call you as a witness in this case? 23 A. No. 24 MR. NOVAK: All right. Your Honor, I have no further 25 questions of Mr. McDonnell. 105 1 THE COURT: All right. 2 MR. NOVAK: I did want to say one other thing, Judge: I 3 did become aware, I think, on Sunday that the FAA or the TSA began 4 sending an e-mail out as a precaution making sure that no 5 witnesses did disclose. I think that's what he's talking about in 6 the third e-mail. We did not include that with the package that 7 we supplied the Court, because it was a warning to the employees. 8 If you want that, I could track that down. 9 THE COURT: I don't think I need that unless you feel 10 that you want to have it in the record. 11 MR. NOVAK: I don't. I just didn't want you to think 12 that we concealed an e-mail when he brought that up. 13 THE COURT: All right. Mr. MacMahon? 14 MR. MAC MAHON: Thank you, Your Honor. 15 CROSS-EXAMINATION 16 BY MR. MAC MAHON: 17 Q. Mr. McDonnell, how are you, sir? 18 A. Fine. 19 Q. You and I have never met, have we? 20 A. No. 21 Q. And you refused to talk to the defense team in this case, 22 right? 23 A. Yes. 24 Q. Now, so nobody on the defense team has any idea what your 25 testimony is going to be in this case, right? 106 1 A. No, not as far as I know. 2 Q. Okay. So when Ms. Martin sent you the opening statements in 3 this case, you learned specifically what some of the issues would 4 be that you might be asked about, right? 5 A. Are you referring to this e-mail here? 6 Q. Exhibit 4, sir. 7 A. Yeah -- yes. 8 Q. Did you know before you received this e-mail that the 9 government was taking the position that if Moussaoui hadn't lied, 10 the September 11 attacks wouldn't have occurred? 11 A. Yes. 12 Q. Did you know that the government was going to claim that if 13 Moussaoui hadn't lied, they would have been able to keep all small 14 knives and box cutters off of planes? 15 A. Yes. 16 Q. Okay. That's not true, is it? It's not true, is it? 17 MR. NOVAK: Objection as to whether he knows. His job 18 is intelligence. It's not -- 19 MR. MAC MAHON: Let me ask him this. 20 THE COURT: All right, wait. 21 MR. MAC MAHON: I'll ask it a different way. 22 Q. When you were prepared to testify in this case, did anybody 23 in the government tell you that you might be asked that question 24 by a defense lawyer in this case? 25 A. Not that I recall, no. 107 1 Q. Did anybody tell you that, that you might be asked whether it 2 was true or false that it was a rather straightforward effort for 3 the FAA to keep hijackers off of planes? 4 A. Can you define what you mean by "straightforward effort"? 5 MR. NOVAK: Judge, I object. He's trying to impeach the 6 opening statement, which is not appropriate. It's not -- that's 7 not what a witness does. That's not what we're here for. 8 THE COURT: I'm giving counsel some fairly broad leeway 9 to make sure that I have as complete a picture as possible as to 10 the degree to which, if at all, these e-mails may have affected 11 how witnesses went about preparing for testimony, and I think this 12 issue is particularly sensitive as to government -- current or 13 former government employees who the defense had indicated they 14 wanted to call, which they have a right to do -- 15 MR. NOVAK: Sure. 16 THE COURT: -- and the extent to which if at all that 17 testimony may have been compromised by this breach of the rules. 18 So I'm going to allow it. 19 BY MR. MAC MAHON: 20 Q. Okay. I'm looking at Exhibit 4, Mr. McDonnell, so if I'm 21 paraphrasing, I apologize. I'm not going to read you the whole 22 thing, but if you see the third statement from the bottom, "It 23 would have been a very straightforward effort for the FAA to keep 24 those hijackers and to keep anyone with a knife or a box cutter 25 off of a plane." 108 1 Do you see that? 2 A. Um-hum. 3 Q. Okay. Had you been prepared by the government to answer the 4 question as to whether that was true or false? 5 A. No. 6 Q. And how about the next one: "Because the FAA before 9/11 was 7 concerned about people smuggling explosives into checked luggage 8 on the planes. They weren't concerned at that point about people 9 taking over a plane with a primitive weapon." 10 Do you see that? 11 A. Yes, I do. 12 Q. Were you prepared to answer a question as to whether that was 13 true or false before September 11? 14 A. Not that I recall, no. 15 Q. Did you know before you read this e-mail that -- and I'm 16 reading here on the next page -- that the FBI agent on the stand 17 got tripped up on the Murad issue? 18 A. Yes. 19 Q. Okay. How did you know that? 20 A. From a press account. 21 Q. And had you, had you been prepared to answer a question 22 about -- by the government about whether anyone in the government 23 had ever thought about flying an airplane into a building before 24 September 11? 25 A. I believe that was discussed in the session that I had with 109 1 them, yes. 2 Q. So you were prepared to answer that question before you got 3 this e-mail, correct? 4 A. Yes. 5 Q. Now, the next paragraph says that the evidence in this case 6 will be that every measure taken after 9/11 to protect airline 7 pax, which I assume is passengers, could have been taken before, 8 and the government and the airlines' inability to adapt to the new 9 threat of suicide hijackings was the fundamental weakness most 10 plainly exploited by the real hijackers on September 11. Did you 11 see that? 12 A. Yes. 13 Q. Did you know that that statement had been made by the defense 14 in this trial? 15 A. No, I did not. 16 Q. Okay. Were you prepared by the government to testify as to 17 what security measures were imposed after September 11 that could 18 not have been imposed before? 19 A. No, because I wasn't there after September 11. I was gone in 20 May of 2001. 21 Q. After, after you got this e-mail, did you do anything to, to 22 look into any of the issues that we just talked about? Did you 23 call anybody and ask about planes as weapons or any of the other 24 questions that are in here? 25 A. I did not. 110 1 Q. Okay. Just, just put it down. 2 A. Yes. 3 MR. MAC MAHON: No further questions, Your Honor. Thank 4 you. 5 THE COURT: All right, Mr. Novak? 6 MR. NOVAK: Nothing else. 7 THE COURT: All right. Then, Mr. McDonnell, I believe 8 we're finished with your testimony for today. Obviously, you're 9 not to discuss any of these questions with anyone other than 10 counsel, if you have counsel, and now you have a copy of the 11 Court's February 22 order, so you know you cannot be covering, 12 watching the case. Thank you for your testimony. 13 THE WITNESS: Yes, sir. 14 MR. NOVAK: May he fly home? 15 THE COURT: Oh, yes. When would this witness be called, 16 not this week, if the case were to continue on track? 17 MR. MAC MAHON: I think it's fair to say he would not be 18 called this week, Your Honor. 19 THE COURT: All right. Sir, you may go home then. 20 Thank you. 21 THE WITNESS: Thank you, Your Honor. 22 MR. MAC MAHON: Fair enough? 23 MR. NOVAK: He's not going to be called for at least a 24 week. 25 THE COURT: All right. 111 1 (Witness excused.) 2 MR. NOVAK: Matt Kormanm please? 3 THE COURT: All right, Mr. White is not going to be 4 called? 5 MR. NOVAK: I was just going to do Mr. White and 6 Mr. Hawley. 7 THE COURT: That's all right. I just want to make sure 8 I'm going by the order here. That's fine. 9 MATTHEW T. KORMANN, DEFENDANT'S WITNESS, AFFIRMED 10 THE COURT: Go ahead, Mr. Novak. 11 MR. NOVAK: Thank you, Your Honor. 12 DIRECT EXAMINATION 13 BY MR. NOVAK: 14 Q. Sir, do you want to state your full name, spelling both your 15 first and your last names for the record, please. 16 A. Matthew Tyler Kormann, M-a-t-t-h-e-w, last name Kormann, 17 K-o-r-m-a-n-n. 18 Q. Mr. Kormann, can you tell us by whom you're employed? 19 A. Yeah. I'm currently employed with the Transportation 20 Security Administration. 21 Q. In what capacity? 22 A. As a liaison officer within their Transportation Security 23 Intelligence Service. 24 Q. All right. And how long have you worked for the 25 Transportation Security Administration? 112 1 A. Since January of 2004. 2 Q. And before that, could you tell us who you worked for? 3 A. I worked for the Nuclear Regulator Commission for two years, 4 and before that the Federal Aviation Administration from '90 until 5 2002, and before that for the Department of Navy, the Naval 6 Investigator Service. 7 Q. And during your -- again, I'm sorry, what was your time 8 period that you worked at the FAA? 9 A. From 1990 to 2002. 10 Q. And during that time period, did you work as an intelligence 11 officer? 12 A. That is correct. I worked as a watch officer. 13 Q. As a watch officer. And do you want to tell the Court what a 14 watch officer does? 15 A. The FAA, within their intelligence office, had an indications 16 and warning watch. I was one of between seven to nine watch 17 officers who were responsible for reviewing intelligence reports, 18 media, looking for indications of possible threats to U.S. air 19 carrier operations. 20 Q. Now, before -- at some point in early February of this year, 21 you learned that you may be a potential witness in this case; is 22 that right? 23 A. That is correct. 24 Q. Before, though, you learned that you were going to be a 25 defense witness, did you have a role in accumulating discovery 113 1 documents, classified documents for the government in this case 2 that we would turn over in discovery to the defense? 3 A. Yes, I did. 4 Q. And did you have a role also in trying to work with the 5 government to, to try to determine during our CIPA process what 6 could be classified and what could be declassified; is that right? 7 A. That is correct. 8 Q. During that process, did you work with any particular 9 attorney from the TSA? 10 A. Yes, I did. I worked with Carla Martin. 11 Q. And during that time, you've had occasion to meet with me on 12 a couple of occasions to help try to figure out what documents are 13 producible and such; is that right? 14 A. That is correct. 15 Q. And that was all part of the CIPA process; is that right? 16 A. That is correct. 17 Q. Now, after you met with -- strike that. 18 After you were told that you're a potential defense 19 witness, you had an occasion in early February to meet with myself 20 and federal agents; is that right? 21 A. That is correct. 22 Q. And you were interviewed also in the company of Carla Martin; 23 is that correct? 24 A. She was present. 25 Q. All right. Now, thereafter -- if I could show the witness 114 1 Exhibit No. 5, please. 2 Do you recognize that item marked as Exhibit No. 5, 3 which I would offer into evidence, Your Honor. 4 THE COURT: All right. 5 MR. NOVAK: I don't think I've offered 5 at this point. 6 THE COURT: 5 is now in. 7 (Government's Exhibit No. 5 was received in evidence.) 8 THE WITNESS: No, I did not read this e-mail. 9 BY MR. NOVAK: 10 Q. You did not read this e-mail? 11 A. No. 12 Q. Did you receive any e-mails from Carla Martin -- why don't 13 you put that e-mail aside then. 14 So maybe just to follow up on that, Mr. Kormann, the 15 heading indicates that this e-mail was sent to you. You're not 16 saying you never received it. You're just saying you didn't read 17 it; is that correct? 18 A. No. What I'm saying to you is in the capacity of my 19 position, I do not have access to unclass e-mail, unless I'm at 20 the headquarters. 21 Q. Okay. 22 A. This e-mail I did not see. 23 Q. Okay. Did you receive since March 6 any type of e-mails from 24 Ms. Martin that you've had an occasion to read about what is going 25 on with the Moussaoui trial? 115 1 A. I've had contact with Ms. Martin that has involved 2 discussions of this trial. 3 Q. Okay. Was it about creating a substitute to be used for 4 other classified documents? 5 A. No. The, the point of the meeting was to review three 6 assessments that I authored during the time periods of the late 7 1990s to review what were declassifications to be sure that the 8 information there contained a correct record and would be useful 9 for this trial. 10 Q. Okay. That's -- 11 THE COURT: When did you have that meeting with her? 12 THE WITNESS: I had a meeting with her, I believe, last 13 Thursday. 14 THE COURT: That would have been March 9. All right. 15 And where was that meeting held? 16 THE WITNESS: That was at the TSA headquarters in her 17 office. 18 THE COURT: All right. 19 BY MR. NOVAK: 20 Q. During that meeting, did you have any discussions with 21 Ms. Martin about the testimony that was already occurring within 22 this -- within this trial? 23 A. She did identify portions of what had occurred during the 24 trial. 25 Q. Okay. And how did she identify that for you? 116 1 A. She identified basically what was outlined by both the 2 prosecution and defense. 3 Q. Did she provide you with a written copy of the transcript? 4 A. No, she did not. 5 Q. Could you tell us to the best of your recollection what it is 6 that you recall Ms. Martin telling you? 7 A. Basically what she identified to me from the defense was that 8 she -- the defense was trying to identify Moussaoui as an 9 individual who was basically crazy. 10 Q. Okay. 11 THE COURT: I'm sorry, you need to move closer to the 12 microphone. I'm having trouble hearing you, or move it closer to 13 you. All right. 14 BY MR. NOVAK: 15 Q. I'm sorry. What if anything else did she tell you during 16 that conversation? 17 THE COURT: Can you repeat that last sentence again? 18 THE WITNESS: Yes. That the defense was trying to 19 identify Moussaoui as an individual there who was crazy. 20 BY MR. NOVAK: 21 Q. What if anything else did she tell you during that meeting? 22 A. We had a discussion involving the declassification of the 23 documents. There were certain additional documents that we had 24 that there were some concerns about the individuals doing the 25 declassification that there was probably classified information in 117 1 there. 2 Q. All right. Now, at any point did Ms. Martin ask you to pull 3 unclassified information on a fellow named Murad? 4 A. Yes, she did. 5 Q. And what did she tell you about that? 6 A. During our discussion, she was interested in whether the FAA 7 had done any work on the checks of the airman's certificate for 8 Hakeem Murad and any other individuals involved in the Manila air 9 plot. 10 Q. All right. Did she tell you why? 11 A. I believe that she was interested in showing that the FAA was 12 proactive in looking at this threat. 13 Q. All right. Did she tell you if the prosecution, myself or my 14 partners here, asked her to do that or whether she was doing that 15 on her own? 16 A. No. She did not identify that. 17 Q. Did you pull those documents? 18 A. Yes, I did. 19 Q. Could you tell us what you did with those documents? 20 A. I made copies of the documents, and I left them with a person 21 at TSA's headquarters. 22 Q. Okay. And do you know who those documents were to be 23 distributed to? 24 A. No, I do not. 25 Q. Do you know if they were ever distributed? 118 1 A. No, I do not. 2 Q. Do you know when you left those copies at -- what is TSES 3 headquarters? What is that? 4 A. TSA headquarters. 5 Q. Okay. And do you know when it is that you left them at TSA 6 headquarters? 7 A. It would have been on Thursday. 8 Q. All right. And all of those documents were unclassified; is 9 that correct? 10 A. There was one item that was still classified that I left, and 11 I left it for purposes of whether it needed to be declassified. 12 Q. Do you know if any -- are you aware of any person receiving 13 those? Has anybody told you that they have received those 14 documents? 15 A. No. 16 THE COURT: Where did you leave them? 17 THE WITNESS: I left them with a manager at TSA 18 headquarters. 19 THE COURT: Is that somebody who has a clearance? 20 THE WITNESS: Yes. 21 BY MR. NOVAK: 22 Q. And who did you leave them there for? Did you address them 23 to somebody? 24 A. I left them with instructions for Carla Martin. 25 Q. And do you know if she ever picked them up? 119 1 A. No, I do not. 2 Q. Okay. Now, did you have any other conversations with 3 Ms. Martin about her -- about the trial? 4 A. Basically it focused on the Manila air plot and what she had 5 told me about the defense. And that was it. 6 Q. About the crazy argument? 7 A. Yes, about being, quote, cuckoo. 8 Q. Okay. Any other things that she had told you that the 9 defense had said as part of their defense? 10 A. No. 11 Q. All right. Now, did you meet or speak with Ms. Martin last 12 week on any occasion other than Thursday? 13 A. I don't believe so, other than a phone call to ask me to come 14 down and take a look at the documents. 15 Q. Which documents are we talking about now? 16 A. These are the documents that were the assessments that were 17 declassified, where the portions were -- 18 Q. This is all for the CIPA process, though; is that right? 19 A. That's correct. 20 Q. All right. Have you spoken to anybody else about what the 21 testimony -- first of all, what your testimony would be if called 22 by the defense? 23 A. No. 24 Q. Was there anything about your conversations with Ms. Martin 25 last Thursday that would influence what testimony you would give 120 1 if the defense called you? 2 A. No. 3 Q. Do you know why it is yet the defense wants to call you? 4 A. I would presume that they would want me to address the 5 assessments that I wrote in the late '90s. 6 Q. Those three intelligence assessments, is that right? 7 A. Correct, I'm going to presume that, yes. 8 Q. Okay. And those are all in writing; is that correct? 9 A. That's correct. 10 Q. And have you changed, as a result of your contact with 11 Ms. Martin, did you go back and change those documents or do 12 anything to them? 13 A. No, because, again, the declassification wasn't done by me. 14 I gave her basically notes, if there needed to be addition for 15 clarification for the defense purpose. 16 Q. I think my -- your -- I guess there's two questions in what I 17 asked, and let me ask it better then. 18 You obviously had a role in declassifying the documents, 19 which means could be redacting them. 20 A. No, I had no role in declassifying the documents. I do not 21 have that authority. What I had the authority to do was go 22 through and identify the sources and the agencies that had 23 generated these messages. 24 Q. All right. 25 A. I did that. It was provided to those agencies to declassify. 121 1 Q. All right. I think what my question is, did you go back and 2 change the substance of the intelligence to make it look 3 differently than when you wrote it back in -- 4 A. No. 5 Q. -- when you wrote these in 1998? 6 A. No. The only addition that I put in there were for purposes 7 of clarification, so that the Court would understand what certain 8 areas were addressing but not to change the content. 9 Q. Are you talking about an unclassified substitute that was 10 shown to you that was going to replace these three items? 11 A. That's correct. 12 Q. Just to make sure that the record is clear here, there are 13 three documents that are highly classified; is that right? 14 A. That is correct. 15 Q. And to resolve the, the classification issue, the government 16 is preparing a substitute in conjunction with the defense for 17 those three documents; is that right? 18 A. That is correct. 19 Q. And you had a role in formulating that substitute; is that 20 correct? 21 A. I had the review of it and to be able to put comments to the 22 proposal, yes. 23 Q. And you would be able to comment about potential changes that 24 the defense, for example, wanted to make to the substitute; is 25 that right? 122 1 A. I was not aware of any that were proposed. 2 Q. I guess you don't know who had -- who wrote that substitute; 3 is that right? 4 A. No, I do not. 5 Q. You don't know who, who contributed what to use; is that 6 right? 7 A. No. 8 Q. You just know you were asked to comment upon the substitute; 9 is that correct? 10 A. That's true. 11 Q. And that's what you mean by you made changes to that; is that 12 correct? 13 A. Yeah. I only make changes with the purpose of clarification, 14 if there were things identified in there in the way of acronyms 15 which wouldn't make sense in a document. I added to that. 16 Q. All right. Now, let's go back to -- let's put the substitute 17 itself aside and talk about the three original documents based -- 18 for which the substitute is based upon. 19 Did you make any changes to the original three documents 20 that, that you wrote a number of years ago? 21 A. No. 22 Q. And -- so then I'll ask you then, is there anything about 23 your contact with Ms. Martin that would influence what testimony 24 you would have to give if the defense decided to call you as a 25 witness in this case? 123 1 A. No. 2 MR. NOVAK: Thank you. I have no further questions, 3 Your Honor. 4 THE COURT: All right. 5 THE COURT: Mr. MacMahon? 6 MR. MAC MAHON: Mr. Yamamoto will handle this, Your 7 Honor. 8 THE COURT: All right. 9 CROSS-EXAMINATION 10 BY MR. YAMAMOTO: 11 Q. Mr. Kormann, Ms. Martin met with you last week? 12 A. That is correct. 13 Q. Is that correct? 14 And she's met with you previously? 15 A. That is correct. 16 Q. You met with the government attorneys back in February? 17 A. That is correct. 18 Q. Now, when she met with you last week, she discussed testimony 19 that had gone on in the trial during the week, correct? 20 A. She discussed one aspect of it. 21 Q. And what aspect was that? 22 A. The aspect was that the defense was trying to prove that 23 Moussaoui was crazy. 24 Q. Well, but she pointed out to you various portions of the 25 government's opening statement and the defense opening statement? 124 1 A. I'm aware of the, the prosecution's opening statement, yes. 2 Q. How are you aware of it? 3 A. Basically from our discussions with the prosecutor on what 4 they planned on using in the way of information. 5 Q. So this was discussions with the prosecution prior to the 6 beginning of trial? 7 A. That is correct. 8 Q. Now, prior to the beginning of trial, did the prosecution or 9 Ms. Martin or your attorney from the TSA talk to you about a rule 10 on witnesses or sequestration of witnesses? 11 A. The first time I heard that was on Saturday. 12 Q. This past Saturday? 13 A. This past Saturday, that's correct. 14 Q. Who did you hear it from? 15 A. Carla Martin. 16 Q. What did she say to you? 17 A. She basically told me that I cannot watch any of the media of 18 the trial and that I was not to discuss it with anyone. 19 Q. And how did she relate that to you? 20 A. By a phone call. 21 Q. Had you had other phone calls with her during the week? 22 A. One phone call that had been Thursday time period to come 23 down to her office to review that document that we just discussed. 24 Q. This is the substitution? 25 A. That is correct. 125 1 Q. So nobody, no -- none of the attorneys sitting here, none of 2 the TSA or FAA attorneys, ever told you that you couldn't look at 3 any testimony concerning this trial? 4 A. No. 5 Q. Have you ever talked to anybody from the defense? 6 A. From the defense? No. 7 Q. And that's because you're unwilling to talk to the defense; 8 isn't that correct? 9 A. No, I haven't been asked. 10 Q. Were you aware that the defense was given correspondence 11 indicating that the -- that you and other FAA-TSA witnesses would 12 not talk to the defense? 13 A. No, I'm not aware of that. 14 THE COURT: Would you have been willing to talk to 15 defense counsel if they had asked for you to do so? 16 THE WITNESS: I was following the lead of my, my legal 17 counsel. 18 THE COURT: And what did your legal counsel -- 19 THE WITNESS: And I was told not to have contact. 20 THE COURT: Who told you that? 21 THE WITNESS: I was told by my legal folks within TSA. 22 THE COURT: Which ones? Do you recall? 23 THE WITNESS: Again, Carla Martin. 24 THE COURT: Do you remember when you were told that? 25 THE WITNESS: I was told that roughly a month ago, 126 1 maybe, maybe a little bit longer than that. 2 THE COURT: And how were you told -- 3 THE WITNESS: Because I was identified as, quote, a 4 hostile witness for the defense, and I asked the question, does 5 this mean that I would be meeting with the defense attorneys? And 6 the answer was no. 7 THE COURT: Were -- how were you told that? Was that at 8 a meeting? Phone call? 9 THE WITNESS: No, that was in a meeting in a discussion. 10 THE COURT: Were other people present at that meeting? 11 THE WITNESS: I don't believe so. 12 THE COURT: Go ahead. 13 BY MR. YAMAMOTO: 14 Q. To your knowledge, do you know if Ms. Martin told that to 15 other TSA or FAA employees? 16 A. I have no knowledge that she has. 17 Q. Has any of them mentioned it to you? 18 A. No. 19 Q. Now, in your meeting I believe you said Thursday with 20 Ms. Martin, she brought up these -- or you discussed the 21 substitutions, but you also discussed the Murad information. 22 A. Correct. 23 Q. Had she talked to you about that previously? 24 A. We had a discussion. She had asked me whether there had been 25 any actions taken on our part. I had provided originally for the 127 1 prosecution actions that FAA took during the Manila air plot there 2 to mitigate the threat. The questions related to the issue of did 3 we do pilot checks. The answer I gave her was yes, we did. 4 Q. And when was that discussion? 5 A. That discussion was on Thursday. 6 Q. Okay. Prior to Thursday, prior to last week, did you have 7 discussions with her not just about Bojinka but specifically 8 Murad? 9 A. No. 10 Q. Had you had discussions with her previously about Bojinka? 11 A. Yes. 12 Q. And when was that? 13 A. Initially prior to the meeting in February with the 14 prosecutor, I had pulled together information in the way of cables 15 that showed FAA actions and what we did to mitigate the threat. 16 Q. And was this part of the ICF? 17 A. It was part of the ICF. It was also cables that were from a 18 database that we have. 19 Q. Separate from the ICF? 20 A. That is correct. 21 Q. Did she tell you Thursday that the topic of Murad had come up 22 during the testimony? 23 A. No, I was not aware that specifically Murad had come up in 24 the testimony. 25 Q. How is it the topic came up on Thursday? 128 1 A. Basically, she was wondering whether we had done anything 2 regarding pilot checks, and the answer was yes. 3 Q. And did that question come out of the blue, or was there a 4 discussion previous to that? 5 A. No discussion that I'm aware of that discussed Murad other 6 than the overall Bojinka plot. 7 Q. And was this in discussions about what was transpiring in the 8 course of the trial as she was explaining it to you? 9 A. I'm not aware of whether it was discussed in the trial or 10 not. My understanding of the question was is that the issue of 11 aircraft being used as a weapon may have come up and that was why 12 it was being asked. 13 Q. And what did that have to do with Murad? 14 A. And Murad was one of the individuals we were concerned about 15 in that regard. 16 Q. Because his -- 17 A. He was a pilot. 18 Q. A pilot who had talked about crashing a plane into the CIA? 19 A. No, actually he didn't discuss it, but another individual 20 had. 21 Q. As part of the network of the Bojinka plot? 22 A. As part of an early discussion of a plot that never 23 materialized. 24 THE COURT: And, I'm sorry, and you're saying that in 25 response to her questioning you about Murad, you indicated that 129 1 there had been pilot checks done? 2 THE WITNESS: That is correct. 3 THE COURT: And you knew that of your own -- 4 THE WITNESS: Pilot checks meaning had they trained in 5 the United States? Do we have an airman's certificate for this 6 individual? And the answer is yes. 7 THE COURT: Oh, in other words -- and did you know that 8 at the moment she asked you that question, or did you have to 9 conduct some research to find it out? 10 THE WITNESS: No, I knew that. 11 THE COURT: You knew that. 12 BY MR. YAMAMOTO: 13 Q. Based on her request, did you have to conduct further 14 research on the Murad issue? 15 A. I pulled additional information out that showed actions of 16 FAA at the time, so, yes, I did do research. 17 Q. So your discussions on Thursday with her were about Murad, 18 about some of the testimony or some of the opening statements, and 19 about the substitution, all topics -- all items involved in the 20 Moussaoui trial? 21 A. That is correct. 22 Q. So your entire conversation on Thursday revolved around the 23 Moussaoui trial? 24 A. It revolved around the Moussaoui trial and the 25 declassification of documents. 130 1 Q. Now, you've talked about leaving the classified document at 2 TSA; is that right? 3 A. Yes, within our SCIF. 4 Q. In their SCIF? 5 A. Yes. This is an area which is built for storage of 6 classified material. 7 Q. Were you told who wanted those documents for trial? 8 A. The documents that I pulled together were for Carla Martin. 9 Q. She asked you to pull the documents? 10 A. Yes. If I could find those documents, she wanted to see 11 them. 12 Q. Did she tell you why she wanted to see them? 13 A. The only discussion that we had was, again, that there was 14 interest in whether FAA had taken any action during that time 15 period. 16 Q. Did she talk about sitting down with you and going over those 17 documents? 18 A. No. Again, for the, for the most part, I do not work at TSA 19 headquarters. I work at other agencies, so my contact with her 20 was minimal. 21 Q. Do you know if she saw the, the potential substitution? 22 A. Yes, she did, and she asked me to comment on it. 23 Q. And you discussed it with her? 24 A. Yes, I did. 25 Q. This is on Thursday? 131 1 A. That is correct. 2 Q. And she needed the backup documents to see where the 3 substitutions were coming from? 4 A. No. The document that we had for the substitution, the only 5 thing that I prepared and I left, she didn't comment one way or 6 the other, was basically things there that would provide clarity 7 in the way of the assessments for the purpose of this trial. 8 They were things along the lines, if there was a 9 statement about an organization but it wasn't identified, I 10 identified it in that paper. If there was a reference to an 11 assessment but it was a wrong assessment, I identified in there 12 that they're looking at the wrong -- 13 Q. Wait. You two looked at the potential substitution, a two- 14 or three-page document? 15 A. Um-hum. 16 Q. She then started talking to you about the substitution, and 17 she wanted to know which agencies the information came from? 18 A. No. What she asked me to do was go through the documents to 19 be sure that they accurately reflected the three assessments, 20 which I did. 21 Q. Okay. And you mentioned something about talking about where 22 the -- the agencies. What -- 23 A. Well, the original process for declassifying the sections of 24 those three assessments, I had to find the original reports and 25 the agencies that they were originated from. I did that. It was 132 1 sent back for declassification. The two pages then were forwarded 2 to me to review to be sure that it was accurate. 3 Q. Okay. And why did you need to discuss this with her? 4 A. Because she was the one that received it via fax. 5 Q. Why did she need to discuss it with you? 6 A. She didn't need to discuss it with me. She was just 7 providing it to me to be sure that it was accurate. 8 Q. Were, were you discussing this substitution with counsel here 9 in court? 10 A. No. 11 Q. You'd never talked to any of these people about the 12 substitution? 13 A. No. 14 Q. So you were only dealing with FAA attorneys? 15 A. TSA. 16 Q. TSA attorneys? 17 A. That is correct. 18 THE COURT: Mr. Yamamoto, just for the record, do you 19 have any idea what exhibit number we're talking about here? 20 MR. YAMAMOTO: There is no exhibit number that I'm aware 21 of at this point. We're still in the process of finalizing that 22 substitution. 23 MR. NOVAK: There's three I designated as -- excuse me. 24 THE COURT: Now, we're violating the rule. 25 MR. NOVAK: I'm sorry. Judge, Mr. Yamamoto and I over 133 1 the last couple of weeks and we still today are continuing to 2 resolve -- there are three outstanding CIPA documents relating to 3 FAA materials that we've crafted a substitute. Mr. Yamamoto's 4 written additions; I've written additions. We've gone back and 5 forth, and we're getting the agencies to sign off on that 6 substitute for the three documents. That's, I think, what he's 7 referencing. 8 We've been doing that, to try to get this completed, we 9 were hoping to have that done, frankly, by today. We were 10 sidetracked here. But that's part of the CIPA process. 11 There's no dispute going on. That's why you haven't -- 12 we told you -- that wasn't in dispute because we thought we could 13 resolve it, Mr. Yamamoto and I, we're just working out the 14 fine-tuning of it. That's all. That's why it wasn't brought to 15 you during the CIPA hearings. 16 THE COURT: All right. 17 MR. NOVAK: Okay. 18 BY MR. YAMAMOTO: 19 Q. Did Ms. Martin discuss with you your potential testimony? 20 A. No. 21 Q. Her discussions with you about Bojinka, about Murad, weren't 22 to help you to get ready for trial -- 23 A. No. 24 Q. -- to be prepared? 25 A. My role prior to the trial was basically to assist both the 134 1 prosecution and defense to find documents that would be used for 2 this trial. Since I worked the issue of Manila Air, I had 3 probably the best knowledge of the individuals at TSA on where to 4 find the material. 5 Q. But once you were designated as a potential witness, didn't 6 Ms. Martin talk to you then about your testimony or your potential 7 testimony? 8 A. She didn't ask me about my testimony. 9 Q. But did she talk -- she talked to you, though, about what was 10 going on in trial and aspects of it that affected your testimony? 11 A. No. She -- 12 Q. Murad would be a potential issue in your testimony, would it 13 not? 14 A. No, it would not, because, again, in the Bojinka plot, Murad 15 was never an individual that was identified for a viable plot. 16 Q. Murad was part of the Bojinka plot? 17 A. That is correct. 18 Q. Murad or others with Murad made statements about crashing a 19 plane into the CIA? 20 A. Made statements. An individual associated with him made 21 statements to that effect, but there was never any indication 22 there that they planned on moving forward with that. 23 Q. There's never any indication. That's what the FAA was told 24 by the intelligence community. 25 A. That is correct. 135 1 Q. That's not something the FAA determined on its own. 2 A. No. 3 Q. So the FAA had to wait until the intelligence community was 4 able to determine there was no threat, correct? 5 A. The FAA worked through its liaison officers with the 6 originating agencies to be able to get the information quickly and 7 to be able to put out countermeasures on this. 8 Q. So the FAA would have been told this potential is there; 9 we're running it to ground? 10 A. That is -- 11 MR. NOVAK: Judge, I object. Again, we're now into 12 trial testimony. This is not really relevant to the evidentiary 13 hearing. 14 THE COURT: No, I think it is. I'll overrule the 15 objection. 16 BY MR. YAMAMOTO: 17 Q. Correct? 18 A. Would you -- 19 Q. This is what -- the FAA would have been told we're looking 20 into this potential threat, and we're going to run it to ground. 21 The FAA then opened up an ICF and waited to see what intelligence 22 came back? 23 A. That is correct. We would have sent RFIs, or requests for 24 information, to the originating agency, questions to identify the 25 threat. 136 1 Q. And Murad was part of that ICF? 2 A. That is correct. He was part of the Bojinka plot. 3 Q. So you on your own would not have, would not have thought to 4 look at any information regarding Murad prior to testifying at 5 trial? 6 A. I did look at information relating to Murad as well as Ramzi 7 Yousef and others that were involved in that plot in the efforts 8 to gain the -- or to provide the information for this trial 9 regarding Bojinka. 10 Q. And the questions she asked you about, were those matters 11 that you already knew and were prepared to testify about? 12 A. Yes, yes. I was aware of Murad. 13 Q. Did she remind you that those might come up? 14 A. No. She didn't identify that Murad specifically would come 15 up in the trial. 16 Q. But she asked you to check on certain aspects of Murad? 17 A. I told her I was already aware of the fact that Murad was, in 18 fact, a pilot. And she said: Did you know that for a fact? And 19 I said: Yes, because we did airman checks on it. 20 Q. What else did you-all talk about? 21 A. That was the only thing that we discussed regarding the 22 Bojinka plot. 23 Q. What other things did you talk about? You talked about the 24 substitutions, Bojinka, Murad. What else? 25 A. And we also talked about the statements within the trial that 137 1 were presented by the defense regarding the mental state of 2 Moussaoui. 3 Q. Anything else? 4 A. That was it. 5 Q. Why would you talk about the mental state of Moussaoui? 6 A. She just brought it up to me. I was reviewing the -- 7 Q. Would that help you in your preparation for trial? 8 A. No, not at all. 9 Q. Did she bring up with you certain aspects of the government's 10 opening? 11 A. I was aware of the fact that the government would be opening 12 with a case looking at if he had provided the information to the 13 FBI, that there was a possibility that they might be able to stop 14 the 9/11 operation. 15 Q. A possibility that you could stop it. 16 A. That they could stop the 9/11 operation. That's my 17 interpretation. 18 Q. Not that it would have absolutely been stopped? 19 MR. NOVAK: Judge, I object. This is so far afield. 20 THE COURT: I'll sustain that objection. 21 MR. YAMAMOTO: Withdrawn, Your Honor. 22 Nothing further, Your Honor. 23 THE COURT: All right. Redirect? 24 MR. NOVAK: Real briefly, Judge. 25 REDIRECT EXAMINATION 138 1 BY MR. NOVAK: 2 Q. So, Mr. Kormann, of the items that Ms. Martin asked you to 3 pull, did you learn anything new that you didn't already know from 4 your prior work in all the discovery that you pulled for us? 5 A. No. 6 Q. And this question about you meeting with the defense, do you 7 understand that it is your decision and not your lawyer's decision 8 as to whether you want to meet with the defense? 9 A. To be honest with you, I did not know. 10 Q. Okay. Well, I'm telling you now. 11 A. Okay. 12 Q. So my question to you now is would you be willing now -- now 13 that Ms. Martin is out of the picture, do you want to meet with 14 the defense now? 15 MR. YAMAMOTO: Objection, Your Honor. 16 THE COURT: I'll sustain that objection. 17 MR. NOVAK: Okay. No further questions. 18 THE COURT: All right. Any recross? 19 MR. YAMAMOTO: No, Your Honor. 20 THE COURT: All right. 21 Mr. Kormann, I want to make sure you understand you're 22 not to discuss anything that's gone on in this courtroom with 23 anyone, other than if you have counsel, you may discuss it with 24 him or her, but your supervisors or anybody else who could 25 possibly be a witness in this case should not be knowing about 139 1 what you said. Understand? 2 THE WITNESS: Understood. 3 THE COURT: Thank you, sir. You're free to go. You can 4 leave for today. You don't have to stick around. 5 (Witness excused.) 6 THE COURT: All right. Mr. Novak? 7 MR. NOVAK: Proceed? 8 THE COURT: Well, we've been recessing around 12:30 to 9 accommodate, you know, various schedules. I would think we have, 10 what, two more witnesses to go? 11 MR. NOVAK: Yes. 12 THE COURT: And what's your time estimate as to how long 13 they would take? 14 MR. NOVAK: I think these two are short. The reason I 15 put them together is they're essentially the same. 16 THE COURT: Well, let's try to wrap it up then so we 17 don't have to come back after lunch. 18 MR. NOVAK: I'm all for that, Your Honor. 19 THE COURT: All right. 20 MR. NOVAK: May I ask you, though, are we going to get 21 to argue on the, the question that I asked during the Agent 22 Samit's testimony? Because I very much would like to be heard on 23 that. 24 THE COURT: Maybe we'd better break for lunch. We'll 25 recess until 1:30. 140 1 (Recess from 12:31 p.m., until 1:30 p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 141 1 A F T E R N O O N S E S S I O N 2 (Defendant in.) 3 THE COURT: All right. Mr. Novak? 4 MR. NOVAK: Judge, I couldn't wait to get up here, now I 5 can't wait to get down, to be honest with you. 6 THE COURT: I don't blame you. 7 MR. NOVAK: I want to tell you one thing before we get 8 started. The next two witnesses, Robert White and John Hawley, 9 the reason why I wanted to put them together is this morning it 10 became clear to me that you had concerns if a witness, if I met 11 with a witness together, and I wanted to tell you I met with 12 Mr. White and Mr. Hawley at the same time. Their interview was 13 reflected, it is in the 302 that they were met with at the same 14 time, and that was in February. 15 And I would just candidly tell you, Judge, I have never 16 interpreted the sequestration order the way that I think you are 17 now interpreting it, and that concerns me to the point that I want 18 to raise this to you, because the last thing we want you to do is 19 think that we're trying to hide anything. 20 I will tell you in the 20 years I have been doing this, 21 I have always been under the impression that as long as before the 22 witness testifies, you could, you weren't allowed after the point 23 in testimony, of allowing one person to know what the other person 24 was testifying to, and with these gentlemen it was clear, we 25 brought it out in the 302 and we disclosed that to defense. And 142 1 if you think otherwise, I would like to know that, because I don't 2 want you to think that we're doing anything nefarious here, 3 because that certainly was not the intent. 4 THE COURT: Well -- and I would be interested in seeing 5 if Agent Samit were still around what they teach at the FBI these 6 days. I certainly recall when I was a prosecutor, the standard 7 practice was you never interviewed two potential witnesses at the 8 same time for just that fear, that you would open the door to the 9 defense coming in and saying, oh, you heard, you know, all right. 10 MR. NOVAK: Sure. 11 THE COURT: And I had always assumed that investigative 12 agents like the FBI followed the same practice, because you want 13 to make sure what you are hearing from that witness is not going 14 to be in any respect affected by, colored by, slanted by what they 15 are hearing the other person say. The whole bit about getting 16 stories in sync is a real concern and in evidence, in a 17 truth-seeking process, which a trial is supposed to be, so I have 18 to tell you that that would concern me. 19 It is not a breach of the rule on witnesses, because the 20 rule on witnesses wasn't entered until actually my law clerk 21 reminded me that we actually had an open hearing on February 13th 22 that was sort of the last hearing before we started the voir dire. 23 And that was one of our, you know, sort of logistics types of 24 hearings, and we discussed the rule on witnesses as of that date. 25 The actual order that memorialized all the things we 143 1 talked about didn't go out until the 22nd but anybody who was 2 present at that hearing, which was not a sealed hearing, would 3 have heard that rule -- I'm sorry, the hearing was February 14th, 4 Valentine's Day. 5 Anybody who was present at that hearing would have heard 6 that issue being discussed. In any case, let us continue with 7 this evidence. 8 MR. NOVAK: I want to ask you, because I don't think 9 we're not being candid with you at all. And the reason I say it 10 is this: My view of this has been that, for example, with 11 civilian witnesses, which I don't normally do, there is a 302 and 12 that's disclosed, so in this instance Mr. Yamamoto or whoever is 13 cross-examining this witness, they know before they get to examine 14 them, who was present when you met with the prosecutor or 15 something like that, and now I want to bring up the fact because 16 you raised Agent Samit's name, I will tell you I met with Agent 17 Samit and his partner, Agent Weess, before Agent Samit testified 18 and I have done that with other agents because when you are 19 talking about a search. For example, Mr. Moussaoui's stuff, you 20 saw how much stuff we introduced, you try to figure out who sees 21 what items to figure out who could testify to various things. 22 And so I met with both of them before Agent Samit 23 testified not for conforming purposes, just to figure out 24 expeditiously who do we call if we have to put something in? Now, 25 it turned out that as we were putting the evidence in, there was 144 1 no objections to all of that evidence coming in, and it was, you 2 know, run a lot looser than normally in a trial just because we're 3 in a federal death penalty situation in a sentencing phase. 4 And I say that to you, Judge, I want you to know that. 5 I don't want you to think we're trying to hide that from you. But 6 my view, and it continues to be standing here today, other than 7 the fact that you obviously have a different view, which concerns 8 me, I don't view it as a, as a violation of a sequestration rule, 9 particularly where there is agents where there is -- the point is 10 that there is reports. 11 And so, for example, the civilian witnesses I met with 12 on this occasion, and I don't normally meet with civilian 13 witnesses together, but it is in the report, so that the defense 14 knows that, they can cross-examine. 15 And with, like, agents on seizing things, with, like, 16 Agent Weess and Agent Samit, they wrote a report together: This 17 is what we seized when we, you know, from the al-Attas hotel and 18 that type of stuff. And so I don't think it is an issue of 19 conformity, but if you do, I want to tell you -- I am telling it 20 to you now because I don't want you to -- I don't want Agent Samit 21 to be cross-examined tomorrow and the defense not to know that. 22 I don't want -- and if you think that's an issue, I want 23 to bring it up to your attention now. 24 THE COURT: Well, Mr. Raskin, let me ask you, you are 25 from the Southern District of New York, correct? 145 1 MR. RASKIN: Yes. 2 THE COURT: What if any practice or policy does your 3 office have about the interviewing of witnesses together? 4 MR. RASKIN: I don't know if there is a policy. I have 5 never seen a policy. The practice is to meet with civilian 6 witnesses separately without exception. I think there are 7 instances where AUSAs interview agents together, but that is 8 certainly the exception to the rule. 9 THE COURT: That's my understanding as well. 10 And, Mr. Spencer, you have been an experienced 11 assistant. What is your understanding of how a prosecutor goes 12 about interviewing witnesses? 13 MR. SPENCER: Well, typically, Your Honor, alone, but I 14 think Your Honor is also drawing the distinction, one, the reason 15 for doing it alone is to avoid a line of cross-examination that 16 the testimony was somehow conformed together, but, two, I think, 17 Judge, you said that you interview them alone to find out what 18 they have to say, and so, for instance, if we have witness A and 19 witness B, we interview them independently, they -- their stories 20 conform on what was seized, for preparation purposes, it is, I 21 think, acceptable to prepare both of them together to discuss more 22 of what we expect to come out at the trial before trial, when 23 there is no rule 615 issue together. I mean, I think that would 24 be acceptable. 25 It has got to be disclosed, defense can cross-examine on 146 1 it, but that is a situation where the reports have been written, 2 we have elicited what each of them has to say, and then later on 3 you are just getting into the finer points of preparation. 4 So I would draw that distinction, Your Honor. 5 THE COURT: And, again, I'm not convinced that sending 6 out a report that we interviewed two people together cures the 7 problem of the potential for testimony having been changed or 8 altered by the influence of the other person. 9 Now, the scenario you present, that is, that AUSAs 10 interviewed each witness separately, got the story from that 11 witness unaffected by the others, and then closer to trial, on 12 something as ministerial as where agents on a large search may 13 have found things, I don't think that's as much of a problem, but, 14 in any case, that's not the main issue here. 15 I mean, this is becoming a kaleidoscope of many 16 individual -- 17 MR. SPENCER: We agree completely. And Mr. Novak 18 brought this up because of Your Honor's reaction earlier when we 19 talked about the phone call involving Mr. Novak, Mr. Manno, and 20 Ms. Osmus. That's the only reason we bring it up. We couldn't 21 agree more that that's not an issue here today. 22 THE COURT: Well, it is not the issue. All right. 23 That's fine. 24 MR. SPENCER: I beg your pardon, Your Honor. 25 THE COURT: All right, Mr. Spencer. Let's finish with 147 1 these last two witnesses then. 2 And for the record -- 3 MR. NOVAK: We're overly sensitive right now, Judge. 4 THE COURT: Well, I understand. 5 All right. Who do you want next? 6 MR. NOVAK: Robert White. 7 THE COURT: All right, Mr. White. 8 ROBERT WHITE, DEFENDANT'S WITNESS, AFFIRMED 9 MR. NOVAK: May I proceed, Your Honor? 10 THE COURT: Yes, sir. 11 DIRECT EXAMINATION 12 BY MR. NOVAK: 13 Q. Sir, do you want to state your full name, spelling both your 14 first and last names for the Court, please? 15 A. It's Robert White. First name R-o-b-e-r-t, last name White, 16 W-h-i-t-e. 17 Q. Sir, do you want to tell the Court by whom you are employed? 18 A. The Transportation Security Administration. 19 Q. And how long have you been employed by -- in what capacity, 20 first of all, do you work for TSA? 21 A. I'm currently a manager of a liaison division at the Office 22 of Intelligence within TSA. 23 Q. And how long have you done that? 24 A. Since September of 2004. 25 Q. And is that when TSA was created and it took over those 148 1 responsibilities from FAA? 2 A. No. TSA was created, I believe, by act of Congress in 3 November of 2001 and then stood up officially, I believe, in early 4 2002. I was part of an FAA contingent that transferred into TSA. 5 Q. Okay. How long did you work for FAA then? 6 A. It would have been since January of 1993 through the standup 7 of TSA. 8 Q. And could you tell us in the summer of 2001, what were your 9 responsibilities with the FAA? 10 A. At that time I was assigned as the FAA liaison officer to the 11 counterterrorist center at the Central Intelligence Agency. 12 Q. And what was your job there? What did you do? 13 A. The exact nature of the job that I did for the CIA, I 14 believe, remains classified for the CIA to discuss, but as far as 15 the liaison officer assignments from FAA, it was to work with the 16 members of the Center in terms of ensuring that information 17 relevant to aviation threats was made available to the FAA. 18 Q. Did you ever have any role while you were at FAA in terms of 19 drawing up and implementing security directives? 20 A. We participated, I did, on one or more of them, I don't 21 recall the specific examples, in which we provided a portion that 22 was essentially a threat portion -- 23 Q. Okay. 24 A. -- which was used in the documents. 25 Q. Would it be fair to say that security directive is divided in 149 1 half, half of it is a threat, the other half is with the 2 countermeasures that are designed to answer that threat? 3 A. Correct. 4 Q. And would it be fair to say that your job was to provide just 5 the threat part, the first half? 6 A. That's correct. 7 Q. Did you ever have anything to do with designing the 8 countermeasures to address the threat? 9 A. I did not, no, sir. 10 Q. Now, in early February of this year, you had an occasion to 11 learn that you have been noticed as a defense witness in this 12 case; is that right? 13 A. That's correct. 14 Q. And were you represented by counsel thereafter from TSA? 15 A. Yes. 16 Q. And who was that counsel? 17 A. I believe it was Carla Martin. 18 Q. Now, as a result of that, did you on February 13th have an 19 occasion to meet with myself, federal agents, and Ms. Martin in 20 the U.S. Attorney's Office? 21 A. Yes, I did. 22 Q. And at that time did I ask you what it is, what you did and 23 what your job was and that kind of stuff? 24 A. Correct, yes, sir. 25 Q. Did you explain to me, you know, how you fit into this 150 1 picture? 2 A. Yes, sir. 3 Q. All right. Now, at the time that you met with -- did you 4 come alone, or did you come with somebody else? 5 A. John Hawley accompanied me. 6 Q. And both of you did a similar explanation? 7 A. Yes, sir. 8 Q. Okay. And other than that, have you and I ever met other 9 than that one occasion? 10 A. No, sir. 11 Q. Now, thereafter, did you have an occasion to receive -- well, 12 let me just, if I could just show the witness Exhibit No. 5, 13 please. 14 I don't know if that's been introduced or not. If it 15 hasn't, I am going to move it in. 16 THE COURT: It is in. It is in. 17 MR. NOVAK: I think it was. Okay. 18 Q. Directing your attention, Mr. White, to March the 7th, did 19 you have an occasion to receive this e-mail? 20 A. Yes, sir. 21 Q. And who is that e-mail from? 22 A. I believe just from -- let's see, from Ms. Kerner, that's the 23 e-mail. 24 Q. Below that. 25 A. Below that? From, I guess, Carla Martin to Francine Kerner. 151 1 Q. Okay. Well, I think below that, that's -- 2 A. Okay. I see down below, yes. 3 Q. Do you see below -- the e-mail that was actually addressed to 4 you is from Ms. Martin herself? 5 A. Correct, me and the other members. 6 Q. Sent to you and who else? 7 A. It would have been to, if I can read it here, Mr. Hawley, 8 Mr. Kormann, Ms. Stauffer, and Mr. Lee Longmire. 9 Q. All right. Now, did you have occasion to read this? 10 A. I did not, no, sir. 11 Q. Okay. Were there any attachments that were attached to this 12 e-mail? 13 A. Yes, sir. There were two very large, as are indicated, the 14 little PDF boxes on this. 15 Q. Did you open the attachments? 16 A. Actually, I tried several times and was unable to do so. 17 Thanks to the miracles of modern communications and technology, 18 for whatever reasons, they would not. On a third try, I believe, 19 I managed to get it open after about ten minutes. 20 At that point when I looked at the upper left corner, I 21 believe, of the .pdf box, it stated that the attachment was some 22 100-plus pages. At that point I decided I would file it and read 23 it at a later date. 24 Q. Okay. Have you ever read it at a later date? 25 A. No, sir. 152 1 Q. Let's not read that at a later date. Okay. Let's just put 2 that aside, all right. 3 So you didn't read the e-mail, and you didn't read the 4 attachments? 5 A. No, sir, I filed them. 6 Q. I'm sorry? 7 A. I filed them. 8 Q. Okay. That's good. Let's not read either one of them. 9 Let me ask you this, Mr. White: Did you receive any 10 other e-mails from Ms. Martin about what was going on? 11 A. Not that I can recall, sir. 12 Q. Did you have any oral conversations with Ms. Martin? 13 A. I mean, after our meeting in February or after this -- 14 Q. No, last week, I'm sorry. 15 A. She called me on Saturday. 16 Q. Okay. 17 A. This past Saturday. 18 Q. And what did she -- when she called you on Saturday, what did 19 she do? 20 A. She asked if I had, in fact, read the e-mail which you are 21 describing and the attachments. 22 Q. And what did you tell her? 23 A. I told her that I had not, no, sir. 24 Q. All right. Did she say anything else to you? 25 A. I believe that was it, sir. 153 1 Q. Okay. Have you received any other source of information from 2 her at all about what's been going on in the trial? 3 A. There was -- when I checked the e-mail on, personal e-mail on 4 Sunday, there was an e-mail, I believe, from someone I did not 5 recognize from an AOL address. I tried to open it, and I could 6 not get it to open on my computer at home. 7 Q. Okay. 8 A. When I came into the office on Monday, I opened it, and it 9 was apparently an e-mail from her. 10 Q. And what did that e-mail say? 11 A. Oh, to the best of my recollection, it was something -- I 12 don't remember if it discussed this or not, but it was something 13 about apparently there had been a decision not to discuss matters 14 before the Court. 15 Q. All right. So it was an instruction to you from Ms. Martin 16 not to talk about your testimony? 17 A. Correct. 18 Q. Okay. And you just got that this past Monday; is that right? 19 A. Yes, sir. 20 Q. Have you talked about what would be your -- other than 21 meeting with the agents and myself on February the 13th, have you 22 had an occasion to discuss your testimony with anybody else other 23 than -- prospective testimony with anybody other than Carla 24 Martin? 25 A. In terms of the -- Mr. Hawley and I would occasionally 154 1 discuss generic things, but not specific things, in terms of what 2 we were going to say or intended to say. 3 Q. Okay. Well, why don't you tell us, can you generically tell 4 us what it is that you-all talked about? 5 A. Just in the sense that the trial was ongoing, we were aware 6 of it, you know, and nothing in terms of any specifics, just 7 general. 8 Q. Did you have any substantive discussions about intelligence 9 reports that you had reviewed or that Mr. Hawley had reviewed 10 beforehand? 11 A. The intelligence, in terms of the reports we had reviewed, 12 no, sir. There were some documents which I know we had sent out 13 for classification review that had come back, and we had been 14 asked to review those by Ms. Stauffer. 15 Q. Okay. 16 A. Just to look at them and see what had been done with them. 17 Q. And in the conversations you had with Mr. Hawley, when was 18 the last time you spoke to Mr. Hawley about what your testimony 19 would be in this case? 20 A. Oh, heavens, it was -- I would off the top of my head say 21 probably within a week or so, but nothing -- 22 Q. Within or beyond, what did you say? 23 A. Oh, within a period of about a week. I mean, not in terms of 24 our testimony but just in terms of the trial in general. 25 Q. Okay. And the conversations that you have had within a week, 155 1 could you tell us generally what kind of conversations those were 2 or -- 3 A. Quite honestly, sir, I don't recall. 4 Q. All right. Let's put it this way: Other than logistics or 5 generally like the trial is going on, did you have any substantive 6 conversations about what's being testified to during the trial? 7 A. Not that I can recall, sir. 8 Q. Is there anything about your communications with Ms. Martin 9 that would affect your ability to provide testimony if the defense 10 were to call you as a witness in this case? 11 A. I do not believe so, sir, no. 12 MR. NOVAK: Judge, I have no further questions of the 13 witness. 14 THE COURT: All right. 15 CROSS-EXAMINATION 16 BY MR. YAMAMOTO: 17 Q. Mr. White, do you recall when you were informed that you 18 might become a defense witness? 19 A. I want to say sometime in February. It was prior to the time 20 I met with Mr. Novak, sir. 21 Q. Around the 4th or so, first part of the month? 22 A. I would assume so. I don't recall specifically. 23 Q. Now, prior to that time, you had been assisting in putting 24 together documents for the prosecution? 25 A. Actually, I had not. What it was, there were several 156 1 documents that as I recall had been produced at FAA. They had to 2 go to a classification review at the other agencies in town, and 3 we had been asked by Ms. Martin and Ms. Stauffer to determine if 4 any of us, who I guess now have been identified as witnesses, had 5 either prepared those documents or worked on them, and they were 6 documents that I understand had been requested by the defense. 7 Q. And was your response -- had you worked on any of the 8 documents? 9 A. One of them I had, sir, yes. 10 Q. Okay. When you say went for classification review, these 11 were documents that were classified that either the defense or the 12 prosecution wanted to use and they had to go back to the 13 originating agency to determine whether or not they could be 14 declassified and given to -- 15 A. Correct, yes, sir. 16 Q. -- prosecution or defense? 17 A. That's correct, sir. 18 Q. Okay. 19 THE COURT: When you say you worked on a document, can 20 you explain what you mean by you "worked on one of the documents"? 21 THE WITNESS: One of the documents that was requested 22 for declassification review was a presentation, was a copy of, 23 hard copy printouts, printed pages of a PowerPoint briefing that I 24 had presented, I believe, sometime in 1998. 25 THE COURT: To the FAA? 157 1 THE WITNESS: I don't recall the exact audience. Again, 2 that was many years ago. My best estimate was it was something we 3 had presented for presentation to the Air Transport Association. 4 THE COURT: And that's a private organization? 5 THE WITNESS: Yes, ma'am. That is the professional 6 association for all the U.S. air carriers. 7 THE COURT: And that PowerPoint presentation is 8 classified? 9 THE WITNESS: Yes, ma'am. 10 THE COURT: Was it classified then? 11 THE WITNESS: Yes, ma'am. 12 THE COURT: How did you present it to an air transport 13 organization? 14 THE WITNESS: Many of the, the individual members of the 15 association are the corporate security directors of the major U.S. 16 air carriers, all of whom have security clearances, ma'am. 17 THE COURT: All right. 18 BY MR. YAMAMOTO: 19 Q. So this was not the presentation that was given to the 20 industry itself? 21 A. No, it was given to the corporate security directors. They 22 are members of the Air Transport Association. 23 Q. But only to that specific section? 24 A. Yes, sir. 25 Q. Not, not to the general populous? 158 1 A. That is correct, sir. 2 Q. At some time in February, was Carla Martin assigned as your 3 counsel? 4 A. Again, I'm not specifically sure in terms of assigned as 5 counsel. She was a TSA lawyer that was working with us on these 6 matters, and, you know, she was working with us. I assume -- 7 Q. When you say working with you, working with you with respect 8 to the documentation? 9 A. Correct, and then taking -- 10 Q. How about with respect to your being a witness? 11 A. She was made aware that -- she made me aware that I was to be 12 designated as a witness, correct. 13 Q. And, and did she then assume responsibilities as your 14 counsel? 15 A. I must confess I'm a little confused with some of the legal 16 terminology, but -- 17 Q. Did she become your lawyer? 18 A. In the sense that I guess as TSA assigns someone to work with 19 witnesses, then I would say yes. 20 Q. Did she help you prepare your testimony? 21 A. No, she did not, sir. 22 Q. Did she -- is she still representing you? 23 A. Not as far as I know. She is not here today, so I'm assuming 24 not. 25 Q. When did she cease to represent you? 159 1 A. That I don't know. I have not had any -- other than this 2 e-mail and the phone call from Saturday, that's the extent of what 3 I know. 4 Q. Other than Carla Martin, is anybody else representing you as 5 counsel? 6 A. There is another lawyer here today, Ms. Flory. 7 Q. Pardon? 8 A. Gillian Flory. 9 Q. From TSA? 10 A. Yes, sir. 11 Q. When was she or he assigned to you? 12 A. She came and accompanied us this morning, and we met with her 13 yesterday afternoon, sir. 14 Q. Okay. So she has just been assigned to you? 15 A. As far as I know, yes, sir. 16 Q. Did anybody discuss with you last week, any attorney last 17 week discuss with you this case? 18 A. No, sir. 19 Q. Did -- when you talked with Carla Martin back in February, 20 were you informed that the defense might want to talk to you? 21 A. Yes, sir, I was. 22 Q. And what were you told? 23 A. That we were to be called as a hostile witness for the 24 defense. 25 Q. Okay. And were you told not to talk to the defense prior to 160 1 trial? 2 A. No, sir. If we were asked, we were just to notify Mr. Novak 3 or Ms. Martin that we had been asked -- we had been contacted by 4 the defense. 5 Q. Before you did anything? 6 A. Correct, to the best of my recollection, sir. 7 Q. Did Ms. Martin ever tell you that you weren't to talk to the 8 defense? 9 A. No, sir. 10 Q. Are you aware of a February 4th letter indicating that you 11 declined to talk to the defense? 12 A. No, sir. 13 THE COURT: Do you have a copy of that letter? 14 MR. YAMAMOTO: Yes, Your Honor. 15 THE COURT: May I see it, please? 16 MR. YAMAMOTO: We would move it in as Defense Exhibit 2, 17 Your Honor. 18 THE COURT: Did you actually see a copy of the subpoena 19 issued for you? 20 THE WITNESS: No, ma'am. 21 MR. NOVAK: May I see something so I know which letter 22 we're talking about? 23 THE COURT: Yeah, there is one before you. Let me look 24 at this. 25 All right, this is Defense Exhibit No. 2; is that 161 1 correct, Mr. Yamamoto? 2 MR. YAMAMOTO: Your Honor? 3 THE COURT: Defense Exhibit 2? 4 MR. YAMAMOTO: Yes, Your Honor. 5 THE COURT: All right. We will make this part of the 6 record. 7 (Defendant's Exhibit No. 2 was received in evidence.) 8 MR. YAMAMOTO: At this point I would like to move in 9 Defense Exhibit 1, which was discussed earlier about the 10 protective order that Ms. Martin signed, just get that over with. 11 THE COURT: Yeah, I actually have a copy. All right, 12 that's No. 1, and I already have that on my bench. 13 MR. YAMAMOTO: Okay. 14 THE COURT: That's the one from 2000, way back? 15 MR. YAMAMOTO: Right. 16 THE COURT: Yeah, got it. 17 (Defendant's Exhibit No. 1 was received in evidence.) 18 THE COURT: I just want to make sure I'm clear. 19 Mr. White, at any time did Ms. Martin or any other attorney at the 20 TSA discuss with you your options as to whether or not to speak 21 with defense counsel before the trial? 22 THE WITNESS: Not that I can recall, Your Honor. 23 THE COURT: Did you ever ask any attorney what you 24 should do in terms of what would happen if you were called by a 25 defense attorney? 162 1 THE WITNESS: I don't recall ever having done so. It 2 was in the sense we were told that we would be notified further as 3 events developed, that if we were contacted by anyone, that we 4 should alert either the TSA attorney or Mr. Novak. 5 THE COURT: All right. Go ahead. 6 BY MR. YAMAMOTO: 7 Q. Last week did you have discussions with Carla Martin? 8 A. No, sir. 9 Q. Just the e-mail that you received? 10 A. Just the e-mail and the phone call I received this past 11 Saturday. 12 Q. Was she still representing you on Saturday? 13 A. I would have to assume she was, based on at that point, I 14 mean, I was not aware that something had changed. 15 Q. So your first inkling of this was yesterday, when somebody 16 else contacted you, that you had different counsel? 17 A. Yes, sir. 18 Q. Did Carla Martin indicate -- did you talk to her? Is that 19 what you said? 20 A. Yes, sir. She called on Saturday afternoon inquiring whether 21 or not I had ever read this e-mail. 22 Q. And you indicated you had not? 23 A. I had not. 24 Q. Correct? 25 A. And that was the extent of it. She called one more time 163 1 after that to ask if I had Mr. Lee Longmire's official title, at 2 which point I said no, I did not, and suggested she call the, if 3 you don't mind an acronym, the CDO, the duty officer at the 4 Transportation Security Operations Center, and get it from him. 5 Q. Did she -- I think you indicated she at some point called you 6 and told you you were not to look at documents. Is that correct? 7 A. There was an e-mail that she had apparently sent. I'm 8 assuming it is from her. I don't recognize the e-mail address 9 that it originated from. It is an AOL address. 10 Q. That's the one you opened Monday? 11 A. Correct. The one I tried to open on the weekend and could 12 not get to open. 13 Q. It was delivered over the weekend? 14 A. I think it was sent on Saturday. 15 Q. Did she ever tell you if you were ever asked, you were to 16 indicate that you had not received anything from her? 17 A. No, sir. 18 Q. Did she ask you if you read the opening -- the attachment? 19 A. Yeah, she asked me if I had read the attachments, and I told 20 her at that point no. 21 Q. And did she tell you not to read it at that point? 22 A. I believe she did, probably, yes, sir. 23 Q. And this was on Saturday? 24 A. Correct. 25 Q. Did she say why you shouldn't read it? 164 1 A. No, sir, she did not. 2 Q. Did she say anything else? 3 A. No, sir. 4 Q. Was this like a 30-second phone call? 5 A. It was very brief, yes, sir. 6 Q. She didn't explain anything to you? 7 A. I don't recall that she did, sir. 8 MR. YAMAMOTO: Thank you. Nothing further, Your Honor. 9 THE COURT: Mr. White, may I just ask you, if this 10 statement is correct, is it correct that you would not agree to 11 meet with a defense attorney before trial? 12 THE WITNESS: No. 13 THE COURT: And was that question ever asked of you, 14 whether you were willing to meet? 15 THE WITNESS: I have no recollection of ever having been 16 asked that question, Your Honor. 17 THE COURT: All right, thank you. 18 Redirect? 19 MR. NOVAK: No. 20 THE COURT: Thank you, Mr. White, you may step down. 21 Let's call the next witness. 22 Mr. White, you are not to discuss your testimony or any 23 of these questions with anyone other than your counsel. Thank 24 you. 25 (Witness excused.) 165 1 MR. NOVAK: Mr. Hawley, please. 2 JOHN HAWLEY, DEFENDANT'S WITNESS, AFFIRMED 3 DIRECT EXAMINATION 4 BY MR. NOVAK: 5 Q. Sir, can you state your full name, spelling both your first 6 and your last name? 7 A. John Hawley, H-a-w-l-e-y, first name John, J-o-h-n. 8 Q. Mr. Hawley, could you tell us by whom you are employed? 9 A. Transportation Security Administration. 10 Q. And in what capacity? 11 A. I am an intelligence analyst. 12 Q. And how long have you worked in that position? 13 A. With TSA, since -- 14 Q. TSA. 15 A. Since 9/11, and before that with the FAA. 16 Q. And how long did you work for the FAA? 17 A. Since 1991. 18 Q. And what was your job at the FAA? 19 A. I was an intelligence watch officer on the watch, and then I 20 was a liaison officer to the Department of State. 21 Q. All right. And during the summer of 2001, specifically, what 22 was your job? 23 A. I was a liaison officer to the Department of State, DSITA. 24 Q. Okay. Now, at some point did you learn in the early part of 25 February that you had been identified as a defense witness in this 166 1 case? 2 A. Yes, sir. 3 Q. And did you have -- did the TSA provide counsel that's 4 representing the agency at that time for you? 5 A. I believe so. 6 Q. And who was that attorney? 7 A. Ms. Carla Martin. 8 Q. Now, after that, did you have an occasion to meet with myself 9 and federal agents along with Ms. Martin? 10 A. Yes, sir. 11 Q. And was that on February the 13th? 12 A. I believe that is correct. 13 Q. And that meeting, did that occur with just you or with 14 somebody else? 15 A. It was Ms. Martin, yourself, and Robert White. 16 Q. Okay. And during that meeting, did I ask you to describe 17 what your job was, basically, at TSA, and did you describe that? 18 A. Yes, sir. 19 Q. All right. Now, after that meeting on February the 13th, did 20 you have an occasion to receive an e-mail specifically on March 21 the 7th from Ms. Martin? 22 A. I believe that is correct. 23 MR. NOVAK: Can we show the witness Exhibit No. 5, 24 please. 25 Q. Sir, do you recognize that item? 167 1 A. Yes, I do. 2 Q. And what is that item? 3 A. This is the e-mail that I received from Carla Martin. 4 Q. And did you read it? 5 A. Yes, I did. 6 Q. Now, there are attachments that are along with that e-mail. 7 Did you open those attachments? 8 A. Yes, I did. 9 Q. How many of the attachments did you open? 10 A. I believe I opened both of them. 11 Q. Did you read the attachments? 12 A. I scanned them. They were very large attachments, and I had 13 other duties and responsibilities, so I didn't get a chance to 14 read them thoroughly, no. 15 Q. Okay. Let me ask you this: Let's go back to the -- let's 16 start with the e-mail, first of all. 17 Your job when you were with FAA before you joined TSA, 18 did you have any role in deciding what countermeasures would be 19 employed in a security directive? 20 A. No. 21 Q. Do you want to describe generically what your job was for the 22 Court? 23 A. With the FAA? 24 Q. With the FAA. 25 A. Okay. As a watch officer, I was indications and warning. It 168 1 would be scanning intelligence traffic, law enforcement-related 2 traffic, and pointing out to my managers things that required 3 immediate attention. 4 Q. Okay. Now, I'm asking to take a look at Exhibit No. 5. Do 5 you have that in front of you there? 6 A. Yes. 7 Q. Now, other than the last paragraph about a fellow named 8 Murad, is there anything above that paragraph that had anything to 9 do with the job that you did with FAA? 10 A. The last paragraph would be the one that would have concerned 11 me, yes. 12 Q. Okay. So other than the last paragraph, which starts "Today 13 the FBI agent on the stand," other than that paragraph, did the 14 other paragraphs address anything that you personally worked on 15 during your time at FAA? 16 A. Well, the paragraph that starts "Because the FAA before 9/11 17 was concerned about people smuggling explosives," we certainly 18 were aware of that. That was a concern. 19 Q. Okay. Anything else that's in there? 20 A. Didn't work on CAPPS directly but we were aware of it. One 21 of the individuals in our office was the person responsible for 22 it, so not directly, no. 23 Q. Okay. Anything else in there? 24 A. Generally, the first paragraph, FAA is responsible for 25 commercial airline security, FBI would be looking for the plot 169 1 and -- yes. 2 Q. All right. 3 A. In general terms, yes. 4 Q. Okay. Now, let's talk about specifics, though. Let's go to 5 that last paragraph. Before you received this e-mail, had you 6 ever heard of a fellow named Murad? 7 A. Yes. 8 Q. Okay. And how had you learned about Murad? 9 A. Well, that would be the Manila plot, Ramzi Yousef and this 10 person's involvement in that plot, sir. 11 Q. And you had previously read intelligence reports about that; 12 is that right? 13 A. Yes, sir, that's correct. 14 Q. Is there anything in this paragraph, this last paragraph 15 about Murad that affects what your knowledge is about, that you 16 previously had about Murad? 17 A. No, not to the best of my knowledge. 18 Q. Now, other than receiving this -- or let's talk about the 19 attachments. You said you skimmed the attachments, which 20 consisted of the trial testimony and opening statements; is that 21 right? 22 A. Yes, sir. 23 Q. To the best of your recollection did you tell, could you tell 24 us what you recall having skimmed? 25 A. No, sir, I can't. I just don't recall. 170 1 Q. Could you summarize what you recall at all from those 2 attachments? 3 A. No, sir. 4 Q. Well, let me ask you this: If you were called to testify as 5 a witness by the defense in this case, would there be anything 6 that you read during the -- from those attachments that would 7 affect your ability to give testimony in this case different than 8 what it was before you read the attachments? 9 A. No, sir. 10 Q. Is there anything that's in the substance of the e-mail 11 itself that would affect in any way your ability to give testimony 12 if the defense elected to call you in this case? 13 A. No. 14 Q. Now, other than this e-mail, did you have any other contact 15 with Ms. Martin last week, either by telephone, additional 16 e-mails, face-to-face conversations? 17 A. I believe we had face-to-face conversations. 18 Q. Okay. When was that, approximately? 19 A. I believe it was earlier in the week, Monday or Tuesday. 20 Q. The face-to-face conversations, did they have anything to do 21 with the trial of Mr. Moussaoui? 22 A. Yes, sir, they did. 23 Q. Could you tell us what if anything Ms. Martin told you? 24 A. It was in reference to your, I think it was your opening 25 remarks at the trial. 171 1 Q. Okay. 2 A. She just made some comments about your opening remarks, and 3 it was very much in passing. It was not a sit-down conversation. 4 It was in passing and just comments about your remarks. 5 Q. To the best of your ability, could you tell us what you 6 recall from what it is that she said to you during those passing 7 remarks? 8 A. To the best of my recollection, it was something to the 9 effect that they were very strong and that it might be 10 difficult -- it might be difficult for the FAA position. It was 11 the offense and defense, and she felt there was something that you 12 would have to do with witnesses related to the FAA part of the 13 prosecution, but we didn't get any further than that, and that was 14 it. 15 Q. What is it that she thought -- did she tell you what it is 16 that she thought she had to do with the FAA witnesses? 17 A. I think it had to do with witness preparation, something like 18 that. 19 Q. All right. Did she tell you specifically what it is that she 20 intended to do? 21 A. No, sir, she did not. 22 Q. Did you have any other conversations with Ms. Martin other 23 than that? 24 A. No, that was it. 25 Q. All right. Did you receive any more e-mails, other than the 172 1 one that we have referenced? 2 A. No other e-mails. I did get a call, though. 3 Q. Okay. From? 4 A. Her, Carla Martin, on Saturday. 5 Q. Okay. 6 A. This past Saturday. 7 Q. Can you tell us what it is that -- what that telephone, 8 substance of that telephone call was? 9 A. She asked if I had seen this e-mail. 10 Q. Right. 11 A. And asked me if I had seen the attachments, I had opened the 12 attachments, similar questions that you have asked me, and I said: 13 Yes, I did. And then she advised that I was not to look at it 14 further and to avoid the press and to avoid discussing the case. 15 Q. Okay. Anything else other than that? Any other 16 conversations with Ms. Martin, either by e-mail, telephone, or in 17 person? 18 A. That was it. 19 Q. All right. Anything about your conversations with 20 Ms. Martin, either on telephone or in person, over the last week 21 that would affect your ability to give testimony if the defense 22 elected to call you about your functions back before 9/11? 23 A. I don't believe so. 24 Q. Would that, the fact that you had this contact with 25 Ms. Martin, would that in any way change your testimony if you 173 1 were called as a witness? 2 A. No, sir. 3 MR. NOVAK: Judge, I have no further questions of the 4 witness. 5 THE COURT: All right. Mr. Yamamoto? 6 CROSS-EXAMINATION 7 BY MR. YAMAMOTO: 8 Q. Mr. Hawley, you were notified sometime in February that you 9 were a potential defense witness. Prior to that were you 10 assisting in collating documents for the prosecution? 11 A. Yes, sir. 12 THE COURT: How were you advised as to what documents to 13 collate? In other words, how did you know what to do? 14 THE WITNESS: Oh, that was Ms. Martin. She -- well, it 15 wasn't so much colocation. I misspoke. I was involved and she 16 would give me a document, Mr. White and Matt Kormann and myself, 17 she would give us a set of documents, and we were instructed to 18 redact them or to look at them and determine if they were suitable 19 for release. And we would do that. They were secret or 20 documents marked SSI. 21 BY MR. YAMAMOTO: 22 Q. So on behalf of the agencies, either FAA or TSA, you were 23 asked to make them -- to help declassify the documents; is that 24 correct? 25 A. Redact them, that's correct. 174 1 Q. Now, did she -- once you were named as a potential defense 2 witness, did she take on an additional role as your counsel with 3 respect to your being a witness? 4 A. What do you mean, a formal agreement or a formal -- 5 Q. No. She was part of your agency. She -- did she assume 6 responsibility, additional responsibilities in helping you prepare 7 for trial? 8 A. I think that's a fair statement, yes. 9 Q. What did she do? 10 A. Well, she sent us e-mails. This was not the only e-mail we 11 received, of course. There were other e-mails which discussed the 12 fact that we were on the defense witness list, we were on a 13 48-hour string, I recall, things like that, just advising us as to 14 what to expect as the trial progressed. 15 Q. Did she tell you not to talk to defense attorneys? 16 A. I don't believe that was put that way. 17 Q. Did she ask you if you wanted to talk to defense attorneys? 18 A. I don't recall, but -- 19 Q. Did you tell her you didn't want to talk -- 20 THE COURT: Wait a minute, Mr. Yamamoto. I think you 21 were trying to explain your answer. 22 THE WITNESS: Well, it is not yes or no. It is I don't 23 recall her saying that it was an option. I don't recall her -- it 24 wasn't really discussed. In other words, she didn't come point 25 blank to me and say: John, do you want to talk to the defense 175 1 attorneys? No, that never happened. 2 BY MR. YAMAMOTO: 3 Q. According -- 4 THE COURT: I'm sorry, did you ever tell her that you 5 did not want to have to talk to defense attorneys? 6 THE WITNESS: Yes, I specifically said that. I, I would 7 have rather not done that. 8 BY MR. YAMAMOTO: 9 Q. Is that what you told her? 10 A. Yes. 11 Q. When did you tell her that? 12 A. Oh, it would probably be right at the beginning, when I first 13 learned that I was a defense witness, sir. 14 Q. And did she ask you if you wanted to talk to defense 15 attorneys? 16 A. No, I don't recall that happening. 17 Q. You just came out and said: I would rather not talk to them? 18 A. Correct. 19 Q. Were you aware that the defense wanted to talk to you? 20 A. I was aware that was a possibility, yes. 21 Q. And based on that, you decided on your own that you didn't 22 want to speak to the defense? 23 A. Well, as we are now, yes, but not informally, no. 24 Q. Well, but did you have a discussion with her concerning that? 25 A. I simply don't recall. I'm sorry. 176 1 Q. But you recall telling her you did not -- or preferred not to 2 talk to the defense? 3 A. Right. 4 Q. Not that you wouldn't talk to the defense, but you -- if you 5 didn't have to, you wouldn't, but if you -- 6 A. That's, that's a fair assessment. 7 Q. If they asked you to, you might? 8 A. If that's a requirement, yes, if that would be a requirement. 9 I wasn't aware that it was a requirement. 10 Q. Well, if you had a choice, if you were asked, do you want to 11 talk to the defense, your answer would be no, yes, maybe? 12 A. No. 13 Q. Were you aware that there was a letter sent saying that you 14 wouldn't speak to the defense? 15 A. No, I was not aware of that letter. 16 Q. She never notified you of that? 17 A. No. 18 Q. She did notify you that you were on 48-hour notice? 19 A. Via e-mail, correct. I have an e-mail stating that -- or it 20 was a group e-mail. It wasn't just to me, but it was to all of 21 the witnesses. 22 Q. What else was in that e-mail? 23 A. Sir, I'd have to read it to you. I can't recall everything 24 that was in it, but it was a laundry list of things to expect, 25 including being on a 48-hour string for the trial, but I provided 177 1 a copy of that e-mail to my TSA attorney. 2 Q. When was that? 3 A. Yesterday. 4 Q. Who was that? 5 A. The -- 6 THE COURT: Counsel, is that you back there? 7 THE WITNESS: Right back there. 8 MS. FLORY: Yes. 9 THE COURT: Do you have that with you, that document? 10 MS. FLORY: I believe I do. 11 THE COURT: Would you mind bringing it, giving us a 12 copy? 13 MS. FLORY: Sure. With the Court's indulgence? 14 THE COURT: Were there other documents you gave to your 15 counsel this morning besides that one? 16 THE WITNESS: I sent her, I think, five or six e-mails 17 last night of which I had received from Carla Martin. I sent them 18 to her. 19 THE COURT: All right. And your counsel's name again is 20 what? 21 THE WITNESS: Gillian. Gillian -- I forgot her last 22 name. I just learned of her last -- 23 THE COURT: Ma'am, can you just give to the marshal -- 24 we will get them back to you, don't worry -- those documents that 25 Mr. Hawley gave you? There are a series of e-mails, apparently, 178 1 with Ms. Martin's name on them. 2 MS. FLORY: Things are a bit commingled. If you will 3 give me a moment, I will try to separate them. 4 MR. YAMAMOTO: Could the Court ask what the commingling 5 of documents are? Are there other witnesses here today that she 6 got Carla Martin's stuff? 7 THE COURT: That's not fair. Let's finish with this 8 witness first. 9 MS. FLORY: Your Honor, I believe these are the 10 documents Mr. Hawley forwarded me yesterday, but I could provide a 11 complete set when I return to my office. 12 THE COURT: That's all right. Can we have the spelling 13 of your last name for the record? 14 MS. FLORY: Flory, F-l-o-r-y, Gillian, G-i-l-l-i-a-n, 15 and I am with the Office of Chief Counsel, Transportation Security 16 Administration. 17 THE COURT: Thank you. 18 I think, Mr. Yamamoto, Mr. Novak may want to read over 19 your shoulder. I am going to let you-all have these first, all 20 right? I do want to look at them. We will probably have to run 21 copies in a few minutes, but -- 22 MR. NOVAK: Actually -- Judge, Mr. MacMahon actually 23 brings up a big, a relevant point here. 24 THE COURT: Yeah. 25 MR. NOVAK: Mr. MacMahon just asked me are any of these 179 1 documents privileged? I don't know if they are privileged. It is 2 not for us, the Department of Justice, to assert privilege on 3 behalf of TSA. 4 I mean, we're just kind of going off kilter here, you 5 know, asking for the documents, and if they are not, that's fine. 6 THE COURT: All right, look -- 7 MR. NOVAK: I have never seen these documents, and I can 8 tell you, trying to make our full disclosure to the Court on 9 Monday, I had asked the general counsel from TSA to give me all 10 the relevant e-mails, which I have disclosed those to the Court. 11 I have no idea what these documents are. I don't know 12 if they are privileged or not privileged. 13 THE COURT: All right. Here is what we will do. Since 14 it is hard for you-all to be crowded around reading, get with 15 Ms. Flory. I am going to take a ten-minute recess, talk with 16 Ms. Flory, see if there is a privilege issue, and then I will have 17 Ms. Arnott make copies of these if there isn't a problem, so you 18 don't have to be looking over each others' shoulders. And I would 19 like a set on the bench if we're going to be talking about them, 20 and there should be one for the witness. 21 Mr. Hawley, you can take a ten-minute break, but you 22 need to be back in the box in about ten minutes, all right? 23 THE WITNESS: Yes, ma'am. 24 THE COURT: We will recess court. 25 (Recess from 2:15 p.m., until 2:25 p.m.) 180 1 (Defendant in.) 2 THE COURT: So according to, I don't know what numbers 3 these things have on, but according to this memo, e-mail I'm 4 looking at dated, again, March 7, and this was sent to Mr. White, 5 Mr. Hawley, Mr. Kormann, the -- Ms. Martin had copy of the 6 government's exhibit book, too, right? Is that right? 7 MR. MAC MAHON: That's the way we read it, Your Honor, 8 that the last full paragraph at the bottom deals with her having 9 an exhibit book and directing the witnesses' attention to certain 10 portions of it to prepare. 11 MR. NOVAK: Judge, I don't think she had an exhibit 12 book. 13 THE COURT: Well, she says: I have the government's 14 exhibit book at this time. 15 MR. NOVAK: May I respond, though? 16 THE COURT: Well, wait. I'm sorry. Let's finish with 17 this witness, and then we can have further discussion. We also 18 may be interrupted. 19 We received a phone call from an attorney in D.C. who 20 may be representing Ms. Martin. My plan is because there are some 21 logistical problems, you know, I keep forgetting we have other 22 locations, I can speak for this courthouse, but committing to an 23 8:30 start time in five other cities or four other cities, is 24 problematic, and so what I want to do is if this phone call comes 25 in, we're going to recess, I'm going to go down to my chambers 181 1 with counsel, let's have a phone conference with this attorney and 2 see about scheduling things, all right? 3 So that may be an interruption that we experience this 4 afternoon. But let's finish the questioning of Mr. Hawley, 5 please. 6 MR. YAMAMOTO: I have no idea where I was. 7 THE COURT: I'm sorry. 8 BY MR. YAMAMOTO: 9 Q. Mr. Hawley, are these all -- we have received, it appears to 10 be, three additional e-mails, one on February 8th at 6:59; one on 11 Saturday, March 11th, at 12:28; and one on Tuesday, March 7th, at 12 1:55. To your recollection, would that be it, or might there be 13 more? 14 A. There may be more, but those are the ones I was aware of and 15 that I saved. In other words -- 16 Q. So there may be others that you didn't save? 17 A. That's, that's entirely possible, sir. 18 Q. How often would she e-mail you? 19 A. As necessary. I would say as necessary. I don't recall how 20 often. 21 Q. Now, the March 7th e-mail indicates that she has the 22 government's exhibit book. Did you discuss that with her? 23 A. Not to the best of my recollection, nor do I recall seeing 24 it. 25 Q. Do you know whether or not she discussed any of the exhibits 182 1 and whether there are errors in them? 2 A. It is possible. There were many informal meetings and 3 discussions in an office within our building. I'm not trying to 4 be evasive. I'm just being honest with you. There was a lot of 5 activity. There was certain items that were passed to myself, 6 Mr. Kormann, and Mr. White to review, redact. We did that. We 7 passed them back to her. 8 I can't recall specifically what those documents are. 9 It was a few weeks ago. 10 Q. How about last week, starting with last week? 11 A. No, I don't recall any activity last week like that. 12 Q. Okay. The e-mail discusses her possession of the exhibit 13 book as of at least Tuesday and notifying you of that fact. Do 14 you recall discussing anything with her last week with regard to 15 these exhibits? 16 A. No, sir. 17 Q. She didn't talk to you about any errors in any of the 18 exhibits? 19 A. Not that I recall. 20 Q. She didn't talk to you about any of the exhibits at all? 21 A. Not that I recall. 22 Q. Did she talk to you about what was going on at the trial? 23 A. Yes, she did. 24 Q. And what -- 25 A. That was that one comment I mentioned in passing, the opening 183 1 remarks, about Mr., Mr. Novak's opening remarks. 2 Q. Now, did you get that e-mail? 3 A. Pardon? 4 Q. Did you get an e-mail that had the opening remarks in them? 5 A. If I did, it would probably have been that e-mail in question 6 with the attachments. That's my best guess. 7 Q. You are indicating that there are potentially two 8 attachments. Do you have any recollection of what those 9 attachments were? You say you skimmed them. 10 A. My best recollection is they were trial transcripts, trial 11 transcripts. I briefly looked through them, but they were 12 lengthy. I mean, they were very -- they were 100 pages or more. 13 I had other work I was doing that day. 14 Q. Each of those attachments was 100 pages or more? 15 A. My best recollection, yes. They were large attachments, 7 16 megabytes, something like that. 17 Q. Do you recall when you received them? 18 A. I believe it was early in the week Monday or Tuesday. 19 Tuesday, I think. 20 Q. Do you know why we don't have them as part of this package? 21 Do you know -- did you give them to your TSA attorney? 22 A. Well, the attachments came with the e-mail. I forwarded the 23 attachment with the -- excuse me. I forwarded the e-mail with the 24 attachments to my TSA attorney. 25 Q. So aside from these three e-mails, there is at least one 184 1 additional e-mail with lengthy attachments? 2 A. That would be the e-mail that you showed me, I think that was 3 the e-mail in question. 4 THE COURT: All right. I think it would be useful for 5 us to talk to Ms. Martin's attorney downstairs, just to get some 6 scheduling things worked out, so I don't think I need every 7 attorney who is here, but if one or two of you per side will meet 8 me down at my chambers, we will only be a few minutes. 9 Mr. Hawley, you need to stay here just a little bit 10 longer, all right? 11 (Recess from 2:39 p.m., until 2:45 p.m.) 12 (Defendant in.) 13 THE COURT: Mr. Yamamoto, there will be no more 14 interruptions of your examination of Mr. Hawley. 15 MR. YAMAMOTO: Thank you, Your Honor. 16 BY MR. YAMAMOTO: 17 Q. Mr. Hawley, back to that March 7th e-mail, she indicates in 18 there that she has additions to the government's exhibit book. 19 Did she discuss those with you? 20 A. Not to the best of my knowledge. 21 Q. Does that mean no? 22 A. Yes, sir. 23 Q. And did you see the government's PowerPoint presentation that 24 they were talking about putting on with respect to the ten 25 measures that would have been put in effect by the FAA? 185 1 A. No, I don't recall seeing that. 2 Q. Were they discussed with you at all? 3 A. If they were, it was very general background information. 4 Q. When would that have been? 5 A. Earlier in February. 6 Q. The March 11th e-mail indicates that the Court has issued a 7 sequestration order. Is that the first time you had heard of it? 8 A. Formally, yes. Well, actually, Saturday night she said 9 something about it in the phone conversation to my home. 10 Q. Okay. This came on Saturday. So she both e-mailed you and 11 called you? 12 A. Correct, but I didn't know about it, just the phone call. I 13 had no clue. 14 Q. You hadn't looked at the e-mail? 15 A. No, I hadn't. 16 Q. When you met with Mr. Novak and Ms. Martin and Mr. White on 17 the 13th of February, was there any discussion then about a rule 18 on witnesses? 19 A. Pardon me? 20 Q. Was there any discussion in February when you met at the U.S. 21 Attorney's Office with Ms. Martin and Mr. Novak about a rule on 22 witnesses to not discuss the case with any other witness or not 23 look at any of the trial transcripts or -- 24 A. No, there was no discussion of that. 25 Q. Between that day and the e-mail that you received or the 186 1 telephone that you received on Saturday, was there any discussion 2 about it? 3 A. No, sir. 4 Q. Was there any discussion about not looking at the news media, 5 reading the papers? 6 A. Oh, absolutely not. 7 Q. Reading books about 9/11? 8 A. No. 9 Q. So the first time you heard was Saturday? 10 A. Correct, in the phone conversation to my home. 11 Q. Did she discuss it with you or just tell you? 12 A. It was rather out of the blue, to be honest. I didn't expect 13 the call. She called, asked for me on -- my daughter gave me the 14 phone. I answered and she said: This is Carla. Did you get the 15 e-mail? 16 I said: What e-mail? 17 And then she went on about the e-mail she had sent out, 18 and she discussed that e-mail and said not to open it, not to view 19 it. I think she asked me if I had opened it, and I said I think I 20 had, but I had to go back and -- well, what it comes down to is I 21 wasn't in the office, so I wasn't sure which e-mail she was 22 talking about initially. 23 Q. Did she talk about anything else? 24 A. The order that you mentioned, that the judge had mentioned 25 not to discuss the case or at that point, from that point forward, 187 1 not to view media reports about the case. 2 Q. From that point forward meaning this past Saturday? 3 A. This past Saturday, March 11th. 4 Q. Right. Not February 22nd? 5 A. No. 6 Q. Did she tell you about a February 22nd order? 7 A. I wasn't aware of one, no. 8 Q. Okay. You mentioned that she -- on direct, that she was 9 talking about having to do something about the FAA witnesses and 10 their testimony or whatever. When was that? 11 A. It was last week, I'm guessing, my best recollection, Tuesday 12 or Wednesday. It was a passing conversation. 13 Q. Passing conversation where? 14 A. In the Office of Intelligence, the sixth floor, TSA 15 headquarters. 16 Q. How did you -- were you in a meeting with her? 17 A. No, it was in a hallway, hallway passing conversation. I 18 initiated the conversation, I'm sure, and I asked her how the 19 trial was going, and then she gave me a short 30-second summary. 20 Q. Of what? 21 A. Of what I mentioned previously to Mr. Novak. 22 Q. The opening and some of the testimony? 23 A. Correct, the opening statement and her concerns about that. 24 Q. And did she tell you what her concerns were? 25 A. Well, in legalese, she did. I didn't comprehend it. I'm not 188 1 making light of it, but it kind of went over my head, and I said: 2 Oh, okay, that's nice, and we parted company. 3 Q. Did she say anything that affected you in your testimony? 4 A. No, it didn't affect me at all. It affected specifically -- 5 my best recollection, it affected testimony perhaps by Lynne Osmus 6 and Claudio Manno. 7 Q. When you skimmed the attachments which were transcripts of 8 the testimony, did you see some of those things that she was 9 talking about in there? 10 A. No. As I stated before, I just didn't have time to read it 11 carefully. 12 Q. And, again, back in February, early, when you were informed 13 that you were a potential witness, she didn't tell you that the 14 government -- that the defense wanted to talk to you, did she? 15 A. What -- the conversations we had, and I'm sure it was not 16 just with me but all the potential witnesses, were why they wanted 17 to speak with you, me, me specifically, why would they want. 18 Q. What do you mean by why? 19 A. Meaning what, what was it that I might say on the stand that 20 would be -- since I was a defense witness, I was on the defense 21 witness list, the concern was why would I be on your list? So 22 they reviewed my 9/11 interview and showed me a summary of it and 23 said: Why do you think they would want to talk to you? 24 And I looked at the page and I said: Well, it could be 25 this, this, this, this, or this. 189 1 But the -- pardon me? 2 Q. Go on. 3 A. Some of the issues I certainly couldn't address, but others 4 potentially I could address, but nonetheless, she was interested 5 in why they might -- I might be on the defense witness list. That 6 is the concern. 7 Q. When was this? 8 A. This was in early February. The date, I don't know. 9 Q. And did she ever tell you that the defense wanted to speak 10 with you? 11 A. Not to the best of my recollection, no. 12 MR. YAMAMOTO: Thank you. Nothing further, Your Honor. 13 THE COURT: Mr. Novak? 14 MR. NOVAK: No questions, Judge. 15 THE COURT: All right. Thank you, Mr. Hawley. Do not 16 discuss your testimony or anything you have heard in court, except 17 with your counsel, and you are free to go at this point. 18 THE WITNESS: Thank you. 19 (Witness excused.) 20 THE COURT: I believe that concludes the evidence 21 portion. Let me just take care of one housekeeping matter before 22 you speak. 23 The phone conference that we had with counsel, Mr. Rosco 24 Howard, who indicated that he will be representing Ms. Martin, is 25 that he cannot make her available later today or tomorrow morning. 190 1 We are, therefore, going to go back to our regular schedule. 2 There will be no 8:30 start tomorrow. We're back to a 9:30 start 3 tomorrow. 4 There is no more evidence that we can take on this issue 5 at this point other than is anyone moving in these additional 6 e-mails, or do you not need them part of the record? And I'm 7 assuming there is nothing classified in any of them, so it has 8 been looked at appropriately, correct? 9 MR. YAMAMOTO: Your Honor, we would ask that the e-mails 10 be moved in. 11 MR. NOVAK: It is not classified. 12 THE COURT: All right. Then make this Defense 13 Exhibit 3, this three-page document. 14 MR. YAMAMOTO: Yes, Your Honor. 15 THE COURT: All right. Is there any objection? No 16 objection, Mr. Novak, to the three-page -- 17 MR. NOVAK: I'm sorry, Judge, no objection. 18 THE COURT: All right. This is Defendant's Exhibit No. 19 3. 20 (Defendant's Exhibit No. 3 was received in evidence.) 21 THE COURT: And, Mr. Yamamoto, did the defense send a 22 formal letter to the TSA requesting access to talk to these 23 people? 24 MR. YAMAMOTO: No. What happened, Your Honor, is that 25 pursuant to Touhy, we had submitted our Touhy request to the 191 1 government, and in response to that, this is what we got back, the 2 letter that I gave to you on February 4th indicating the 3 individuals were not going to speak to us. So at that point, 4 there was no sense in trying to contact them. 5 THE COURT: All right. 6 MR. YAMAMOTO: We did ask in the Touhy notice, Your 7 Honor, to be permitted to talk to the witnesses. 8 THE COURT: Oh, you did. All right. 9 MR. NOVAK: Judge, may I address that? 10 THE COURT: Yes. 11 MR. NOVAK: Obviously, I'm the author of Exhibit D-2, 12 and you can see by the date that I had not met any of those 13 witnesses except for Admiral Flynn. 14 And Mr. Yamamoto is exactly right; he gave us a Touhy 15 notice that he would like to meet with them. I contacted 16 Ms. Martin, and I said we need to know what the answer is. I had 17 not met any of the people in that first paragraph. She gave me 18 the answer that I reported in the letter. 19 The only person I had met is Mr. Flynn, who I had met 20 right before I wrote that, and you can see he did agree under -- 21 he wanted to set some parameters, and I informed that to 22 Mr. Yamamoto. 23 THE COURT: All right. Well, let's talk about Defense 24 Exhibit Number 2. 25 MR. NOVAK: Okay. 192 1 THE COURT: Now, this is a letter that you authored, but 2 I understand you were relying upon information from Ms. Martin, 3 and you did cc her. 4 MR. NOVAK: Yes. 5 THE COURT: So if there was anything inaccurate in the 6 letter, she would have had an opportunity to correct that. 7 MR. NOVAK: Judge, I had never met any of the people in 8 paragraph 4. She affirmatively told me what's in that paragraph. 9 I could not have -- I didn't know these people from a hole in the 10 wall. 11 THE COURT: I'm not faulting you -- 12 MR. NOVAK: I understand. 13 THE COURT: -- but again, you are working off of 14 information supplied by her. 15 MR. NOVAK: Sure. 16 THE COURT: You relied upon her as an attorney to give 17 you accurate information. 18 MR. NOVAK: Yes. And I am also obligated, she is a 19 counsel, she represents them. I am not allowed to deal directly 20 with them because they are represented parties. 21 THE COURT: I understand. 22 MR. NOVAK: So just to make that clear, No. 1. 23 No. 2, I wanted to address this notion about the exhibit 24 book. I just want to make sure it is clear what that item is, 25 because it dawned on me what it was that she's talking about, that 193 1 Mr. Yamamoto and I have been going back and forth to make sure 2 that we know what documents are that were classified that we're 3 trying to declassify so we're on the same page as to which ones 4 are actually going to go in. You have seen it as we have tried to 5 resolve the CIPA issues. 6 And so finally what happened is when we got down to the 7 last set, other than the substitute, which we have already talked 8 about, I put together a binder, which I gave a copy to 9 Mr. Yamamoto, too, to make sure that he knew what the documents 10 were, because if he disagreed with that, I wanted to know about 11 it, and I also gave a copy to Ms. Martin so that the witnesses 12 also knew, this is the parameters so that they didn't go into 13 classified information. 14 That was, that's the book that she is talking about. It 15 is the declassified versions of documents that have gone through 16 the CIPA process that either Mr. Yamamoto or I intend to introduce 17 at trial, and that was done to make sure that nobody went beyond 18 the appropriate parameters about classified information. And 19 Mr. Yamamoto was given a copy of that. 20 THE COURT: All right. Well, technically speaking, what 21 we have got on the calendar today is the defense motion to dismiss 22 the death notice and for other relief. So I think, Mr. MacMahon 23 or Mr. Yamamoto, whoever is going to argue this, you ought to 24 start. 25 MR. MAC MAHON: Thank you, Your Honor. 194 1 The defendant does move after this evidentiary hearing 2 to dismiss the death notice in this case. The cumulative effect 3 of all of these constitutional deprivations that have been 4 occasioned here -- and, again, I feel compelled to say that my 5 three colleagues to the right of me, that this isn't their work, I 6 know that, but this is Mr. Moussaoui's trial, and it is one that 7 needs to be fair from a constitutional standpoint, and it just 8 flat-out isn't. 9 We have, we have witnesses who we asked to speak to who 10 I'm just going to try to go in order, who we have falsely been 11 told refused to speak to us. No party owns a witness. We 12 actually litigated that in this case, Your Honor, United States v. 13 Moussaoui deals with what happens when there's witnesses that the 14 defense wants to talk to. 15 And in the case, the Fourth Circuit, the issue was if 16 the government imposed a national security privilege, what would 17 happen? It was never suggested and, again, these lawyers would 18 have never suggested that the answer was that some government 19 lawyer could just say falsely that the witnesses in issue have 20 refused to speak to you and that's the end of the matter. 21 It is just a clear due process violation that goes right 22 to the right to counsel. And if a counsel is to be effective, he 23 has got to be able to investigate a case. And to do that, you ask 24 government witnesses whether you can talk to them. 25 And we rely on the word of our colleagues. When they 195 1 say no, the answer is no. Nobody on our side has ever made any 2 effort to contact these witnesses. And they are important 3 witnesses to the case. 4 So we have that constitutional deprivation, which on its 5 face is something that the Court simply cannot accept, and I know 6 that you won't. 7 Now, you deal with the issue of what Ms. Martin did with 8 these e-mails. These witnesses came forward and, and said some of 9 the right things, but when you are dealing with the two government 10 witnesses that we're really concerned about here, Mr. Manno and 11 Ms. Osmus, to say that there is no benefit obtained to them at all 12 is just preposterous. 13 If you look at these e-mails, Ms. Osmus says: I agree, 14 I need to be careful in describing these measures. Nobody is 15 defending what Ms. Martin did in saying that it in any way could 16 have been appropriate. 17 What we're trying to figure out is what remedy the Court 18 should give, and we ask that the death notice be dismissed as the 19 remedy. These are the key witnesses that are going to come 20 forward as the linchpin of the government's case and say that 9/11 21 would not have happened if this man had not lied. 22 They are not going to testify that it might not have 23 happened or that as a possibility, it would not have happened. 24 And in that regard, Ms. Martin is correct here, that the 25 government can't argue that and have a verdict which would support 196 1 a claim that something he did directly caused a death. The death 2 had to not occur. 3 And so to come forward and coach these witnesses and 4 say, look, we -- I don't support this, we have got to say this, we 5 have got to do that after a trial is started just offends due 6 process, Your Honor, and that's the reason for the order that you 7 entered in this case, and nobody even bothered to tell them. 8 Now, Ms. Osmus was honest and said that she was 9 concerned when she received the e-mail, that she knew that there 10 was something -- well, it was just her antenna went up when 11 Ms. Martin said: Don't answer this e-mail. And we credit her for 12 that, just like we credit them with coming forward with this 13 information. 14 But the genie is out of the bottle. There is nothing 15 that can be done that -- I can't cross-examine these witnesses the 16 way I did Agent Anticev, who apparently didn't think someone was 17 going to ask him the question about planes as weapons, or I 18 can't -- you can't get these people to be the kind of witnesses 19 who are uncoached, un-put-forward as impartial witnesses, which is 20 what they are really supposed to be. The fact that they work for 21 the government doesn't mean that they have an agenda. 22 And the argument I read in the government's brief that 23 somehow there is no coaching because their testimony hasn't 24 changed really is, is an argument that you should disregard, 25 because the fact that a witness, after reading something, doesn't 197 1 agree to come forward and lie, which we would expect no witness to 2 do in this court, doesn't mean that the rule hasn't been violated, 3 that they have gained some advantage, and that there therefore has 4 to be some kind of sanction. 5 We think the death notice should be dismissed, but at a 6 very minimum for the violation of your sequestration order, that 7 Ms. Osmus and Mr. Manno simply cannot testify in this case. They 8 can't come forward as impartial witnesses. And even if you think 9 that they can, Ms. Martin's e-mails have got to come in to impeach 10 their testimony. 11 Again, I am arguing these in the alternative as I go 12 down, Your Honor, but the issue of what to do with this is they 13 have got to be stricken. 14 If your order means anything, it means they can't read 15 the opening statements. It means they can't be handed the 16 testimony of an FBI agent, much less the coaching, the deliberate 17 coaching that's in these things: Don't say this. Don't say that. 18 Somebody got tripped up. 19 I don't need to argue this to you to tell you, I know 20 you said earlier that you memorized these e-mails, so I won't go 21 into them. 22 And then we have the third issue of the -- of what 23 happened on Thursday, which I frankly was shocked that the 24 government would come forward and claim was now a proper question, 25 the invocation that Mr. Moussaoui's right to counsel is a Miranda 198 1 invocation. For the government to argue that he was free to come 2 forward, that he could have changed his mind, therefore, they 3 could comment on the invocation, is an astounding constitutional 4 argument. 5 Edwards says that the defendant can initiate the 6 conversation again, but he didn't. And the government argues to 7 you that somehow they had a good faith basis for asking this 8 question, as if they're cross-examining a witness that they have 9 never talked to. 10 I don't really know, you know, sometimes you take 11 chances with a witness. "Now, did he ever come forward and say 12 this to you again?" Mr. Novak knew the answer to that question. 13 We have been working on this case for four years. He knows that 14 Moussaoui never said a thing after he was done, he exerted his 15 right to a counsel on the 16th. So to say it was some exploratory 16 question trying to find out what might have happened is a 17 preposterous argument to make. 18 And it turns Doyle all the way over on its head, because 19 it is true, Mr. Novak is correct, he could have come forward and 20 said: We're investigating you for another crime. The government 21 has the absolute right to do that. They go back into his cell, 22 they give him another Miranda warning. They can't just go back in 23 and just, because he is in the jail and start talking to him 24 again. 25 They can't -- we think you are a terrorist who is here 199 1 to hijack an airplane, we're going to say that again, and what do 2 you have to say? They have to Mirandize him again. 3 So they don't even jump through the hoops that they 4 would have had to do in order to have said that. 5 So the invocation here, the comment on the invocation 6 here is in the most inappropriate of ways, because it is being 7 used as proof, a suggestion of proof that someone should be 8 executed in our country for exercising their right to counsel. 9 Now, people have a lot of feelings about this man, Your 10 Honor. I know that. This is a very emotional case. But the 11 constitutional right that he has to remain silent can't be used as 12 evidence against him to say that he lied, he lied and then didn't 13 come forward and, therefore, intended to and, in fact, did cause 14 the awful deaths that occurred in our country on 9/11. 15 We have a trial now with those three errors in it, which 16 is just so infected with due process problems and right to counsel 17 problems and Eighth Amendment counsel problems that the 18 government's death notice should simply be dismissed and 19 Mr. Moussaoui sentenced to life in prison and this case 20 terminated. 21 Thank you, Your Honor. 22 THE COURT: All right. 23 MR. RASKIN: Your Honor, if you will, I am going to 24 respond to the sequestration point, because as we all know, 25 Mr. Novak wants to respond to the issue regarding the question. 200 1 As we appreciate that the Court used this time to have 2 the hearing, because we now know what the government has known for 3 quite some time, in that as egregious as Ms. Martin's conduct was, 4 it simply did not affect these witnesses in the way that, 5 certainly in the way the defense is claiming that it did. 6 What the witnesses are going to testify about in this 7 case, what they will be asked on their direct examination is sort 8 of the bread and butter of what they do. These are not disputed 9 facts. These are facts that the witnesses or at least Mr. Manno 10 has testified about before various commissions. They are facts 11 that are laid out in excruciating detail in the 9/11 Commission 12 report and other publications. 13 The facts on gate security are not disputed. They are 14 certainly -- there is not 100 percent success rate. That is not 15 what the government is going to present in terms of direct 16 testimony. It was never our intention to do so. 17 Ms. Martin simply was a little too aggressive in terms 18 of involving herself in this case. If she had just done her job, 19 which was to sit idly by and make sure FAA's interests were 20 protected and let the prosecutors do their job, this would not be 21 an issue. 22 THE COURT: But, Mr. Raskin, let me ask you this: 23 Defense Exhibit No. 2 is a letter that Mr. Novak sent to the 24 defense team, and it has the first paragraph, last sentence says, 25 "None of these three witnesses, that is, Hawley, Kormann, and 201 1 White" -- all three of whom we heard from today -- "will agree to 2 meet with you for an interview before trial." 3 Now, we know that at least as of two of those witnesses, 4 that that's a bald-faced lie. 5 MR. RASKIN: That is -- that -- well -- 6 THE COURT: If you accept -- Mr. Kormann testified that 7 he would have, he was told not to, and Mr. White, I believe it 8 was, said that, you know, he had never said no. Only Mr. Hawley 9 said that he didn't want to talk to the defense. 10 MR. RASKIN: There are two issues here, Judge. There is 11 Ms. Martin, and there are the witnesses. The witnesses are, you 12 know, also subdivided in terms of what they would have said and 13 whether it was affected and what access the defense has. 14 Those two issues can be remedied. What happens to 15 Ms. Martin is a separate issue. 16 THE COURT: Let me take it a step further. It has also 17 come in through the testimony of these witnesses that Ms. Martin 18 appears to have been the key contact person between the 19 prosecution team and the TSA-FAA component in terms of getting 20 documents and that sort of thing. Is that a fair description of 21 her role? 22 MR. RASKIN: I'm not sure how key she was. She was 23 basically a liaison, and I don't know whether she had a 24 substantive role in this case. 25 THE COURT: Well, this last witness, Hawley, was, for 202 1 example, testifying that, you know, she was the one presenting 2 various documents to him for him to look at in terms of, you know, 3 the classification business and all that. 4 Here is my problem: This woman is involved in a 5 significant portion of your case. She is included on some of your 6 pleadings to this Court. She is cc'd on some of the letters that 7 you-all were sending to the defense team. And my problem is that 8 her involvement in that portion of this case in my view so taints 9 anything that she might have touched, how could any rational trier 10 of fact rely upon any representation made by her? 11 MR. RASKIN: She is not being called as a witness, Your 12 Honor. 13 THE COURT: Or anything she did. How do I know as the 14 judge presiding over this case that she, in fact, made a proper 15 and appropriate search of the necessary documents and presented 16 the correct universe of documents to the witnesses? Do I have any 17 basis to feel confident that there has been an adequate search and 18 an adequate compliance with Brady and the other obligations as to 19 the FAA documents because this woman has been proven to be so 20 unreliable? 21 MR. RASKIN: I am somewhat hamstrung, because that's 22 Mr. Novak's side of the case. I think we are confident that a 23 proper Brady search was done, and certainly in terms of the CIPA 24 question, Your Honor, these are documents that the defense has 25 identified for us. 203 1 This category of documents, Your Honor, has been poured 2 over by the 9/11 Commission and is the subject of that report with 3 extensive footnotes. Part of our comfort here, given the issues 4 that have arisen in the last few days, is that there has been such 5 great coverage of this topic by other investigatory bodies, it is 6 highly unlikely that there is a document out there that would be 7 in any way material to this case that has not been poured over 8 time and time again. 9 The issue that the Court should be focused on is what 10 the witnesses are going to tell this jury, and what we have seen 11 at this hearing is that the witnesses are going to tell the jury 12 exactly what they would have told them whether Carla Martin talked 13 to them or not, both on direct and on cross-examination. These 14 people -- this is what they do for a living. 15 The issue about Murad, while something that Agent 16 Anticev hadn't heard about until after 9/11 because Agent Anticev 17 wasn't investigating the Murad case, is something that these 18 people have lived with since 1975. Nobody was going to be 19 surprised by that. 20 We saw that here. These witnesses were rock solid, Your 21 Honor. They weren't affected. And I think it certainly was 22 clear, I think Mr. Manno stated it, you know, the most 23 definitively, he got an awful lot of e-mails from Carla Martin, 24 and he certainly, while he noted them, he certainly didn't take 25 them all seriously and certainly didn't read the entire opening 204 1 statement. I think Ms. Martin's personality does have something 2 to do with what effect she had on the witnesses here. 3 Just going back to the law for a second, as we have laid 4 out in the brief that we submitted to the Court last night, the 5 Court has discretion to do whatever the Court wants here. I think 6 that's clear. 7 But certainly in our research, we have never -- we found 8 no case that -- in which a court dismissed a civil or criminal 9 matter or struck a death notice for violation of the sequestration 10 rule. That doesn't diminish the severity of Ms. Martin's conduct. 11 However, even excluding a witness is viewed by the courts, 12 including the Fourth Circuit, as an extraordinary remedy. 13 We don't think that's necessary here, simply because 14 these witnesses, while unnecessarily and unfortunately infected, 15 are not changing their testimony. That's what this hearing was 16 for, and that was demonstrated quite clearly. Their testimony 17 will be no different because of what they heard from Ms. Martin. 18 The proper remedy here is to allow the defense to 19 inquire. This is the best way for the jury to see exactly what 20 happened and how these witnesses were affected, and that is a 21 perfectly appropriate remedy here. Anything else would be far too 22 severe. 23 And now if the Court has no other questions, I will turn 24 it over to Mr. Novak. 25 THE COURT: How do you address the issue of you have a 205 1 government lawyer telling a government employee not to talk to the 2 defense in a capital criminal case? 3 MR. RASKIN: I can't explain it, Your Honor. However, 4 there is a remedy for that. We haven't gotten to the FAA portion 5 of the case. If we can ask the witnesses now whether they want to 6 talk to the defense, and they can talk to the defense, if they 7 want to. 8 We still have time. That is a perfectly appropriate 9 remedy here. 10 THE COURT: All right. 11 MR. NOVAK: Judge, before I start on the question that's 12 at issue, may I just answer your one question about discovery that 13 Mr. Raskin was not able to address? Would you permit me to do 14 that? 15 THE COURT: Yes. 16 MR. NOVAK: Just so it is clear what Ms. Martin's role 17 is, she obviously was the liaison for the production of the 18 documents. However, she is not the one that made judgment calls 19 on Brady reviews. I will tell you that in the first year of this 20 case, we sent teams of prosecutors to each of the locations who 21 went through all the documents, who made decisions. 22 As this case went on and it morphed into different type 23 of, you know, prosecution throughout the years that we have been 24 working on this, I have also gone back and done follow-up reviews 25 and personally reviewed many of those documents again just to make 206 1 sure that we had produced those documents. 2 And I have repeatedly discussed with Mr. Yamamoto if 3 there is anything that he believes that we're missing, please tell 4 me. We will go back, and we will look again. And I think that we 5 have done this in waves to determine that. 6 We have never relied upon Ms. Martin's decision as to 7 what constitutes Brady or what is discoverable. We have relied on 8 our judgment. 9 Now, to the extent that those documents are produced, we 10 rely, you know, on her to get those to us so we can look at it, 11 but those people that are doing that are the people, the witnesses 12 that you heard, those like Mr. Kormann and Mr. White and 13 Mr. Hawley, people that were involved in the intel world who were 14 producing those types of items. 15 As to the security directives, that's easy. They print 16 those out, and we just go through those. So I think as to 17 security measures, that's not a problem. I think your question 18 would be driven more towards intel-product about what the FAA 19 knew, and I think that we have exhausted that, and I also think 20 all that has been exhaustively reviewed before we ever got to it 21 by the various commissions that have asked the same questions. 22 And so my point that I think is that Ms. Martin did not 23 make those decisions on what's discoverable. I don't know if that 24 answers the question that you had, Judge. 25 As to the question that was asked on Thursday of Agent 207 1 Samit, I can tell you, first of all, no interest in asking 2 unconstitutional questions. And they described it as 3 premeditated. That was the last thing -- it was certainly a 4 spontaneous question, but I stand behind that question, as we 5 wrote in our pleadings, very strongly believe, Judge, that that is 6 not a violation of the Fifth Amendment. 7 The Doyle v. Ohio stands for one proposition, and if you 8 look at all the cases that cite Doyle v. Ohio, it stands for the 9 proposition that when a defendant is given assurances that you 10 have the right to remain silent, it won't be held against you, and 11 when he accepts those assurances, the government may not use that 12 later on down the road to impeach him. 13 That's the proposition of Doyle v. Ohio, and that's 14 repeated throughout all the -- the cases that follow that. 15 That does not stand for a situation that we have here. 16 We had a defendant who was offered the right to remain silent. He 17 rejected it. He signed a Miranda waiver. He then talked for two 18 full days, and he lied. At the end he said: I want to speak to 19 an immigration lawyer. 20 Let's assume for -- even though we argue otherwise in 21 our pleadings, let's assume that saying "I want an immigration 22 lawyer" invoked the Fifth Amendment. That still does not 23 believe -- or that does not mean that I could not ask a question 24 about whether he ever voluntarily corrected what he had 25 voluntarily offered during those two days. 208 1 And that's exactly what I think Anderson v. Charles that 2 we cited really speaks to. It talks about the fact that Doyle is 3 limited to when somebody invokes right away and never speaks. And 4 then what happened in Anderson v. Charles, Your Honor, is that a 5 defendant talked for a while, and then he invoked, and when he 6 told a different story on the witness stand, the prosecutor asked 7 him: Have you ever told this story before, which encompassed, as 8 the court noted, not just the time period that he voluntarily 9 spoke, but also the time thereafter. 10 The questions -- what Doyle v. Ohio speaks to is 11 custodial interrogation, that where the agents go back afterwards 12 and derive improperly additional information, where a defendant 13 here waived his rights and voluntarily spoke, I had the ability to 14 question whether he voluntarily did that again, and I think that 15 was a proper question. 16 And I would ask you, now with the -- I obviously didn't 17 articulate it very well at the time of the mistrial motion, 18 because frankly I didn't realize I was going to get an objection 19 like that, but having said that now, with the briefing, I very 20 much ask the Court to revisit whether that was a proper question. 21 But even if you decide that it was not a proper question, Greer v. 22 Miller is right on point. Greer v. Miller is a situation where 23 you had a single question, and the Court was there and you have 24 read the record, this was one single objection about one single 25 question about this point. 209 1 You sustained the objection. There was no answer by the 2 witness. You gave a curative instruction. And I moved on to 3 another point. I never came back. I never tried to revisit it. 4 Although I still respectfully disagree with the Court's ruling, I 5 never did that. 6 And that's Greer v. Miller. An isolated question, an 7 objection, no answer, and a curative instruction, and the Supreme 8 Court ruled that that cured it. And, of course, there's always 9 the other case law that we've cited that talks about that juries 10 are presumed to follow the law. 11 But at the end of the day, Judge, this question was 12 asked in good faith, because there is no way that Doyle v. Ohio 13 could be extended in that fashion, and certainly there is no case 14 that I know of, and I have thoroughly researched this since I have 15 been personally attacked on this case that has been extended in 16 that way. 17 And I again tell the Court that we believe that was a 18 good faith asking of that question, very strongly believe it was 19 proper, and we would ask that you revisit it based upon the case 20 law that we have cited. 21 THE COURT: Well, Mr. Novak, just for the record then, 22 is it the fact that that question was not in the heat of battle 23 but, in fact, was a question that you did think about and ask with 24 the understanding in your mind that it was legally permissible to 25 do so? 210 1 MR. NOVAK: No, Judge, to be candid with you, it was a 2 heat-of-the-battle thing. I did not intend to ask that particular 3 question when I went in there. But I can tell you that does not 4 mean that I -- I'm not retracting the question. I believe that 5 it is appropriate. 6 You could tell that it was a heat-of-the-battle question 7 by the fact that I did such a poor job defending it in response in 8 the mistrial motion. I am just being honest with you. I did not 9 research this beforehand, but I still stand behind that question. 10 THE COURT: All right. Mr. MacMahon? 11 MR. MAC MAHON: Thank you, Your Honor. 12 You know, I will be brief in closing. The issue before 13 you really doesn't have anything to do with Carla Martin's 14 personality. It doesn't interest me at all whether she had some 15 issues or she was a poor manager or other things. 16 What concerns me is discharging my obligations to the 17 Court and the impression of whether or not we have a 18 constitutionally fair trial in this case. 19 Ms. Martin, since we're talking about invoking 20 privileges, we have a situation here where a government witness 21 who could have answered questions and come forward and said what 22 had actually happened here hasn't. So we have nothing in this 23 record and we won't have anything in this record as to why she did 24 the things that she did, what her intention was, her side of what 25 she talked about with these other witnesses, or anything else. 211 1 And I'm not going to comment on the invocation, but I 2 will say that the record doesn't have it. 3 And we have a situation where we have all these 4 witnesses in a critical issue in the case who literally we just 5 have to take their word for it that nothing that happened is going 6 to infect the trial. 7 You can look at those e-mails. There has to be some 8 sanction for the Court's order to have any meaning. If that's not 9 a violation of the rule on witnesses requiring a sanction, then 10 this case really is sui generis in all respects. 11 We don't have time in this case now after four years to 12 explore with witnesses what they might testify to or if they 13 don't. We're in the middle of trial. We have got an agent coming 14 on in the morning. That's no remedy at all. 15 And the last point I want to raise is that -- with this 16 Doyle question is that what we're dealing with is the use of his 17 silence against him. I don't know what a heated direct 18 examination is or how somebody does that, but it is clear that in 19 the case that Mr. Novak cited, Anderson v. Charles, what happened 20 was the defendant took the stand. 21 The defendant -- if Mr. Moussaoui sits in that chair 22 there, it's Katy bar the door pretty much so. He can ask him if 23 he -- what he did, what he said, and when he lied. That's fine. 24 The government's theory of death is that Mr. Moussaoui 25 lied. It is not that he didn't come forward in some other time 212 1 and try to make things right that was in that question. And 2 that's why the -- the instruction that we crafted last night would 3 be appropriate if we go forward on that. 4 To comment on anything that Moussaoui did after he lied 5 is to conflate the government's theory of death into one in which 6 someone could be executed in our country for invoking their right 7 to counsel, and to claim that asking for a lawyer isn't a 8 revocation of a Miranda warning really is a legal argument that 9 the Court should simply disregard. 10 Thank you, Your Honor. 11 THE COURT: All right. 12 MR. SPENCER: Your Honor, can I ask one question? This 13 is just procedural, really. 14 THE COURT: Yes, sir. 15 MR. SPENCER: Following our conference upstairs, was 16 there -- Mr. MacMahon, I think, has now brought this up, but does 17 the Court wish to put on this record what the result of the 18 conference was upstairs with respect to that particular witness we 19 were concerned with? 20 THE COURT: I don't have -- well, we were going to have 21 Mr. Howard, as you recall, write a letter formally stating what 22 was informally stated on our phone conference, which is that at 23 the present time, he is not advising his client to testify, that 24 he hasn't had enough time to review the records, and I think 25 that's pretty much what he said. He didn't say she might not down 213 1 the road be available. It is just he cannot make her available 2 today or tomorrow. 3 MR. SPENCER: I wanted to clarify what Mr. MacMahon was 4 alluding to, Your Honor. Right now that person has refused to 5 testify. 6 THE COURT: Right. So at this point we do not have 7 Ms. Martin available to testify. 8 MR. SPENCER: Thank you, Your Honor. 9 MR. MAC MAHON: Just to be clear, Your Honor, that's all 10 I was saying. I was making no comment about any -- I don't know 11 that the right was even invoked, so excuse me if that was the 12 impression. 13 THE COURT: All right. I have thought a great deal 14 about this case and what should be done, if anything, based upon 15 what are now a significant number of errors, and, of course, more 16 problems arose today that none of us knew about yesterday in the 17 course of this testimony. 18 There is no question that the constitutional 19 jurisprudence that is out there these days looks at constitutional 20 errors in most cases with the harmless error approach, and that 21 is, you look at the error, evaluate it, and then try to make an 22 assessment of how much it has tainted the trial process, and if, 23 in fact, there is no evidence of prejudice, no significant 24 evidence of prejudice, often the matter can go forward with that 25 problem. 214 1 However, I don't think in the annals of criminal law 2 there has ever been a case with this many significant problems. 3 We, first of all, have, as I said, this rule on witnesses. Now, 4 the Fourth Circuit's analysis of Rule 615 and how a court goes 5 about handling one of those -- a violation of a sequestration 6 order -- and we talked about this a lot yesterday, so I'm not 7 going to repeat what I said then -- but, again, the fact pattern 8 in that case is totally opposite what we have here. 9 It was a trial judge who barred a defense witness from 10 testifying because of the violation of the rule, and it had a 11 different type of Rule 615 order in place, and there the Fourth 12 Circuit reversed the trial court's decision to sanction by 13 depriving the defendant of his right to make a defense by keeping 14 the witness out. It was one witness, it was a defense witness, 15 and it wasn't even the same kind of broader order than what we had 16 in this case. 17 What we have in this case, and the evidence is 18 uncontroverted in this respect, is that I will say now six rather 19 than seven, but six witnesses, two for the government and four 20 potential defense witnesses, were tainted in that the attorney, 21 Ms. Martin, communicated with them in clear violation of the 22 Court's written order. 23 Now it is interesting, I don't know whether she was 24 present at the hearing on February 14th, and I don't think we keep 25 attendance at the nonclassified ones, so I can't tell whether she 215 1 was there or not, but, again, this case, unlike most, is very 2 transparent. That order of February 22nd, which came a week after 3 that hearing, at the hearing I orally announced the rule, it was 4 actually written and published on the 22nd, was available on the 5 Moussaoui website for anyone in the world to see. 6 Now, I do think in hindsight, and a lot of this case 7 involves hindsight, it probably was not judicious of the 8 prosecution not to get that order out to its various 9 constituencies, because it is true, if you don't know about an 10 order, you may not realize you are violating it. 11 I have trouble believing that any experienced attorney 12 would not have an appreciation in a major trial of at least 13 checking to see if there was a rule on witnesses. This is a 14 standard practice in both civil and criminal litigation, and so it 15 is shocking to me that that would not have been looked into. 16 But regardless of the motivation, it is clear that the 17 Court's intent in passing that rule was violated. And, you know, 18 we even talked about the rule and the parameters of it. We made 19 sure that victims were not included within it. We made sure that 20 both -- experts for both sides were excluded from it, and so it is 21 not something that was done as just a quick knee-jerk response to 22 a request for a rule on witnesses. 23 Then during the testimony today, however, more things 24 came out. Whether these witnesses have actually been tainted or 25 not is almost impossible to tell. Certainly the best offense is a 216 1 good defense, and to the extent that witnesses might have been 2 alerted to issues that they hadn't been thinking about, especially 3 those government witnesses who might have been hostile, there 4 clearly could be damage done to the defense's ability to make its 5 case. 6 I don't think I can tell from this record. I mean, the 7 six witnesses who did testify appear to be honest, credible 8 people. I just can't tell the degree to which their testimony may 9 have changed because of this improper communication. 10 I am, however, further concerned about this case because 11 of the actions of Ms. Martin in telling witnesses -- telling at 12 least one witness that he could not speak with the defense and by 13 clearly misrepresenting to the prosecuting team that three 14 witnesses -- that two witnesses had explicitly said they would not 15 agree to meet with defense counsel for an interview, and then 16 relying upon that information, the prosecutors communicated that 17 to the defense. 18 As I said earlier, I think based upon this quantum of 19 not only violation of the Court's order but certainly in terms of 20 telling a witness not to talk to opposing counsel, that's a 21 violation of the ethical canons for lawyers and, I'm not even 22 sure, a government requirement that may have been violated there 23 as well. 24 There's just a number of errors that are so serious that 25 I think that at least a portion of the government's case has been 217 1 significantly eroded. And as I said earlier, my problem is I 2 wouldn't trust anything that Ms. Martin had anything to do with at 3 this point. The prosecutors relied upon information from her and 4 made a false representation to defense counsel. 5 And I have no way of knowing how much, if any, impact 6 she may have had on the selection of evidence. It is simply in my 7 view too riddled with problems. 8 And so the appropriate sanction in my view is not to 9 strike the death notice, because there is no precedent for doing 10 that, but is to strike out of the case that portion of the case 11 that I feel has been irremediably contaminated by the misconduct 12 of this attorney, and so I am removing from this case any and all 13 witnesses and evidence dealing whatsoever with the, what we will 14 call the aviation component of this case. 15 The witnesses who would have testified and the exhibits 16 that would have been produced relating to aviation issues will be 17 out. The case will go forward on one of the two prongs which the 18 government announced in its opening statement. 19 Now, as to the comment by -- the question by Mr. Novak, 20 I still think that was an improper question. I think, however, 21 under Greer v. Miller, at the present time there has been enough 22 of a cautionary instruction to the jury that I don't believe at 23 this point the case needs to stop. I will seriously consider 24 giving a version of the proposed instruction that the defense 25 tendered at the end of the case when instructing the jury as to 218 1 how it should evaluate the evidence in this case. 2 I think this is an appropriate response by the Court to 3 what were a series of egregious errors. A trial, particularly a 4 death case, simply can't go forward with this many violations of 5 standard, well-established principles of law. 6 I, again, do not blame any of the prosecutors in this 7 case for this problem. You are like trial counsel working with an 8 in-house general counsel who messes things up. You have to live 9 with it in court. But as a team, it is still all one U.S. 10 government, and I cannot allow this kind of conduct to go without 11 there being serious sanctions. It would literally turn our 12 criminal justice system on its head. 13 That's my ruling. We will reconvene the trial at 9:30 14 tomorrow morning. 15 MR. SPENCER: Your Honor, I, of course, have to note our 16 objection. We need to consider our options and, obviously, 17 consider an appeal. 18 THE COURT: I understand. Try to do it as quickly as 19 possible. 20 MR. SPENCER: Yes. I want to make sure I have done what 21 I need to preserve that in the record, though. 22 THE COURT: I believe you have. 23 MR. SPENCER: Thank you, Your Honor. 24 THE COURT: All right. We will recess court until 9:30 25 tomorrow morning. 219 1 (Recess from 3:35 p.m., until 4:45 p.m.) 2 (Telephone conference, Defendant not present.) 3 THE COURT: Hello. 4 MR. SPENCER: Hi, Your Honor. It's Rob Spencer and Dave 5 Novak, David Raskin, and John Van Lonkhuyzen for the government. 6 THE COURT: All right. 7 MR. MAC MAHON: And just Ed MacMahon here, Your Honor, 8 by myself. 9 THE COURT: All right. Well, this is a phone conference 10 on the record in United States v. Zacarias Moussaoui, Criminal No. 11 01-455-A. Ms. Thomson is recording this, and I think this 12 transcript probably should be publicly available given the issues 13 that are involved, so unless I'm hearing an objection from 14 you-all, we'll go ahead and have her add this to her transcripts 15 from today. All right? 16 MR. MAC MAHON: No objection. 17 MR. SPENCER: Fine, Your Honor. 18 THE COURT: All right. Now, I received the letter a few 19 minutes ago from Mr. Spencer in which the government has requested 20 that we adjourn the trial proceedings until Monday to enable the 21 government to consider its options, which they describe here as 22 deciding whether to move for reconsideration or to appeal, and I 23 had assumed that if that were not opposed, I would just go ahead 24 and do an order, but I've been advised that the defense has an 25 objection to the request. 220 1 Is that correct, Mr. MacMahon? 2 MR. MAC MAHON: That's correct, Your Honor. 3 THE COURT: And the basis for the objection is what? 4 MR. MAC MAHON: Well, we're just prepared to go. 5 Jeopardy is attached in this case, Your Honor. We don't think the 6 government has any appellate rights under 3731 or anything else, 7 and there's just no reason for us to not keep going. 8 I'm concerned that the direct of this witness was almost 9 a week ago, and it's going to be even longer than that if we just 10 wait a few days, and I haven't found and have been looking for 11 some basis upon which the government can get an interlocutory 12 appeal after jeopardy attaches that's not a CIPA right. 13 MR. SPENCER: Your Honor, under 3731, you've made a 14 decision suppressing and excluding evidence, and I think that 15 gives us the right to appeal your decision. 16 THE COURT: Well, look it, rather than deciding that, it 17 is correct that Agent Samit is scheduled to have his 18 cross-examination start tomorrow morning, and none of Samit's 19 testimony has been affected by this ruling. 20 MR. MAC MAHON: That's correct. I don't think so, Your 21 Honor. 22 THE COURT: Mr. Spencer, do I not perceive that 23 correctly? In other words, what I'd call the FBI portion of the 24 case can certainly go forward. 25 MR. SPENCER: It can, Your Honor, but we don't know 221 1 whether it is worth us proceeding at all, candidly, under the 2 ruling you made today, and that's why we need to assess it, 3 because without some relief, frankly, I think that there's no 4 point for us to go forward. 5 That's why we want to just rather than waste the jury's 6 time and the Court's time, and we're all mindful of the expense of 7 this proceeding, that we ought just to weigh our rights for 8 reconsideration or our appellate rights, Your Honor, and that's 9 why I think the most prudent course is to, is to just adjourn 10 until Monday and give us a chance to reflect on that rather than 11 have to do it overnight, Your Honor, in one night. 12 I might also add that Agent Samit, he's now finished 13 testifying last Thursday. He has spoken -- I mean, the record on 14 Mr. Samit, as Mr. MacMahon will concede, is very, very long, and 15 it's not going to change, and if it is, I'm not sure it's to the 16 government's benefit between having him be cross-examined tomorrow 17 or the following Monday. 18 THE COURT: Mr. MacMahon, I think Mr. Spencer makes some 19 valid points, and I really don't think you're going to be overly 20 prejudiced by a few-more-day delay, so I'm going to go ahead and, 21 and grant that request, but, Mr. Spencer, I really can't go beyond 22 Monday. You know, we don't want to lose the jury. If you decide 23 to continue with this proceeding, we want this to be the jury that 24 decides this case, and so any kind of, you know, an extensive 25 delay would, I think, jeopardize that situation. 222 1 MR. MAC MAHON: And just for the record, Your Honor, if 2 I may, 3731 does give the government the right to appeal, but it 3 says right in the statute itself that not -- but not after the 4 defendant has been put in jeopardy, and putting -- he's clearly in 5 jeopardy at this point, and we just don't think that it's an 6 objective leaving this jury out any longer, especially given all 7 this media. 8 And I know that your instructions were good, but as long 9 as the objection is on the record, we understand the Court's 10 ruling. 11 THE COURT: Well, frankly, I'm not sure I've ever had 12 this issue come up before in the middle of a trial. 3731? 13 MR. SPENCER: Your Honor, even if Mr. MacMahon's reading 14 of that is correct, and I'm not conceding that at all, we still 15 have the right to petition the Court for reconsideration, of 16 course. I really don't think what we're asking here under the 17 circumstances is very extraordinary. 18 THE COURT: All right. I'm going to go ahead and grant 19 the government's motion, and what I will do is get out a very 20 quick order, and I will ask our staff to make sure that we've 21 contacted the jurors. I will have Ms. Arnott and only Ms. Arnott 22 from the Clerk's Office make the contact and just advise the 23 jurors that we are unable to reconvene until Monday morning at 24 9:30, and they know my admonition. I don't want her repeating it 25 to them; they know what to do. 223 1 And then we'll need to contact the off-site locations 2 and try to head off -- and I would suggest the government, if you 3 have any system by which you contact victims, once you get the 4 order from me, you may want to try to do that. We'll have, you 5 know, redundant systems in place to try to head off anybody from, 6 you know, coming unnecessarily to one of those courthouses. All 7 right? 8 MR. SPENCER: Yes, Your Honor. 9 THE COURT: All right, very good. I'm sorry it was a 10 tough day. It's been a rough week for everybody. But I guess 11 then unless there is a hearing scheduled -- now, my Friday 12 calendar is fairly crowded, because I've put everything off to 13 Friday, so if there is going to be another hearing, we probably 14 want to schedule it for Thursday, and that also avoids 15 Mr. Moussaoui being here when the other judges are having their 16 motions dockets. So there are a few logistical things to 17 consider, Mr. Spencer. 18 And in particular, the marshals need heads-up because of 19 the security that goes into place, so we can't -- this is not the 20 kind of case where we can easily have a hearing and then, you 21 know, on very short notice, not with the defendant present, and he 22 really would have to be present for any substantive proceeding. 23 MR. SPENCER: I understand, Your Honor. Thank you. 24 THE COURT: All right. 25 MR. MAC MAHON: Thank you, Judge. 224 1 THE COURT: Thank you-all. Bye-bye. 2 MR. MAC MAHON: Bye-bye. 3 (Which were all the proceedings 4 had at this time.) 5 6 CERTIFICATE OF THE REPORTERS 7 We certify that the foregoing is a correct transcript of the 8 record of proceedings in the above-entitled matter. 9 10 11 Anneliese J. Thomson 12 13 14 Karen Brynteson 15 16 17 18 19 20 21 22 23 24 25 225 1 I N D E X 2 DIRECT CROSS REDIRECT RECROSS 3 WITNESSES ON BEHALF OF THE GOVERNMENT: 4 Carla Martin 5 (No examination) 6 Lynne Osmus 15 38 7 Claudio Manno 48 68 87 89 8 WITNESSES ON BEHALF OF 9 THE DEFENDANT: 10 Patrick McDonnell 94 105 11 Matthew T. Kormann 111 123 137 12 Robert White 147 155 13 John Hawley 165 173 14 15 EXHIBITS 16 MARKED RECEIVED 17 GOVERNMENT'S: 18 No. 1 23 2 29 19 3 32 4 97 20 5 114 6 63 21 22 DEFENDANT'S: 23 No. 1 161 2 161 24 3 190 25