12 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 20 of the proceeding and Day 11 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
3363
47CLSAT1
1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 -------------------------------------x
2 UNITED STATES OF AMERICA,
3
3 v. S1 02 Cr. 395 (JGK)
4
4 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
5 and MOHAMMED YOUSRY,
6
6 Defendants.
7 -------------------------------------x
7
8 July 12, 2004
8 9:15 a.m.
9
9
10
10 Before:
11 HON. JOHN G. KOELTL
11
12 District Judge
12
13
13 APPEARANCES
14
14 DAVID N. KELLEY
15 United States Attorney for the
15 Southern District of New York
16 ROBIN BAKER
16 CHRISTOPHER MORVILLO
17 ANTHONY BARKOW
17 ANDREW DEMBER
18 Assistant United States Attorneys
18
19 KENNETH A. PAUL
19 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
20
21 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
22
23 DAVID STERN
23 DAVID A. RUHNKE
24 Attorneys for Defendant Yousry
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3364
47CLSAT1
1 (In open court; jury not present)
2 THE COURT: Good morning, all. Please be seated.
3 I've reviewed the weekend correspondence. Mr. Tigar's July 9th
4 letter should already be docketed because I had endorsed it
5 asking for a government response. I've marked up all the
6 correspondence that I have from the weekend, so the
7 government's July 10th letter, if the government wishes that to
8 be filed, it can be filed. So ordered. But you'll need a
9 clean copy, and if you need to send it to me to docket it, you
10 can do that, or have it docketed yourself if the clerk accepts
11 it.
12 With respect to the issues raised in the
13 correspondence, the parties refer to them in groups. First are
14 issues relating to court orders. Number 1, the government is
15 providing copies of calls made from and in the same proprietary
16 file format as on the tapes from the Lockheed Martin system.
17 So there is no issue for the Court at this time.
18 As to the first request on pages -- which is responded
19 to on Pages 2 and 3 of the government letter, the government
20 represents that there are no such statements by the witness,
21 written or signed by him or otherwise adopted or approved by
22 him, and that is sufficient. This is not a case like Goldberg
23 against the United States, 425 U.S. 94, 1976, where notes of
24 the witness's statements were identified and had to be
25 reviewed, and indeed where some of the notes turned out to be
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3365
47CLSAT1
1 the witness's own statements. There is nothing for the Court
2 to review in this case.
3 Second, the second group of requests relates to a
4 motion to produce. Of the four requests, the first is being
5 satisfied, to the extent it can be, by the production of copies
6 of the calls in the Lockheed Martin compressed proprietary file
7 format. And the second and fourth are the subject of a search
8 now by the FBI. No further action is required.
9 The third request is for personnel information on the
10 operators of the devices on which the recordings were made.
11 The defendant seeks this information allegedly as part of a,
12 quote, "McKeever", unquote, determination, and to the
13 cross-examination and rebuttal of experts.
14 As a preliminary matter, it should be noted that the
15 Court of Appeals has "expressly and repeatedly declined to
16 adopt" the "formal approach to the admission of audio
17 recordings as enunciated in United States against McKeever, 169
18 F Supp. 426, 430, (Southern District of New York, 1958),
19 reversed on other grounds, 271 F.2d 669 (2d Cir. 1959),";
20 United States against Hamilton, 334 F.3d, 170, 187 (Second
21 Circuit 2003).
22 Moreover, the government is correct that the defendant
23 has shown no basis for the discovery of this information
24 pursuant to Rule 16 or any other provision. The defendant has
25 made no showing that such materials are relevant to the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3366
47CLSAT1
1 defense, and it would be unreasonable to require the production
2 of such personnel records.
3 Finally, it should be noted that Defendant Stewart
4 declined to obtain expert disclosure in this case because she
5 declined to make reciprocal discovery, and the Court, if
6 recollection serves, deferred to Miss Stewart's choice despite
7 the government's application, and even though other defendants
8 were participating in reciprocal expert discovery. In any
9 event, for the reasons I've already explained, the request is
10 not for producible information.
11 Number 3 is entitled, The Unanswered Request. First,
12 with respect to the first request for information about
13 defendants who have pleaded guilty during trial, the government
14 is correct that the information does not appear to be 3500
15 material or Rule 16 material, and that it could have been
16 pursued on cross-examination. But Mr. Elliott may have to be
17 recalled, and in any event, the government does have
18 obligations of candor and the production of some forms of
19 impeachment material should be required.
20 This particular material would appear to be, unless
21 I'm missing something, public, unprivileged information about a
22 public proceeding. So, subject to any other specific
23 objections which are not raised in the paper, in the papers,
24 the issue should be resolved now, so the government should
25 produce that information.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3367
47CLSAT1
1 Two -- Miss Baker?
2 MS. BAKER: I'm requesting clarification of the
3 Court's direction. Is the Court asking the government to
4 follow up with Mr. Elliott and provide the information that he
5 personally knows, or is the Court directing the government to
6 provide information more broadly than that encompassed by
7 Mr. Elliott's personal knowledge?
8 THE COURT: It's sufficient at this point, as a
9 follow-up to his testimony, to determine what he was referring
10 to as to those people who pleaded guilty during trial. I mean,
11 the suggestion -- well, sufficient unto the day, I don't
12 know -- the request was to determine what that was based on.
13 And so it would have to be something that he was referring to,
14 thinking about, and that's public information. You know,
15 perhaps he was referring to the person who pleaded guilty
16 before trial who was the other person listed. If so, that
17 should be clarified. If he doesn't recall specific cases,
18 perhaps there are such cases, and he was aware of that without
19 knowing the names, in which case the government may wish to
20 produce that information. But at this point, it's what he was
21 referring to.
22 And the defense says they searched records and they
23 can't find any, and so at the outset, it's important to know --
24 or relevant to know -- what he was referring to. If there are
25 others that he wasn't specifically aware of but that did exist,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3368
47CLSAT1
1 as I say, the government may wish to produce that, and that may
2 or may not be relevant, depending upon where this goes.
3 Two, the second request for information is about
4 unauthorized FISA surveillance, including FISA overruns. The
5 information does not have to be produced. The information is
6 irrelevant to authentication of the telephone calls or
7 determining the weight to be afforded to those conversations.
8 Three, with respect to the third request, Mr. Elliott
9 referred to an engineer who walked into his office. The
10 response indicates he does not recall who that was. That is
11 sufficient, particularly since defense counsel could have
12 pursued the issue on cross-examination but chose not to.
13 Four, with respect to the fourth request, as modified
14 in the July 9th letter, seeking information on degradation, the
15 government is reviewing the request and determining which
16 documents exist. No action is required at this time.
17 With respect to the motion in limine with respect to
18 the proposed witness, the defendant seeks to exclude the
19 witness as irrelevant. The government says it would reassess
20 whether it seeks to call the witness after Agent Kerns'
21 testimony. The motion is premature at this time.
22 That disposes of all of the correspondence before me.
23 I said I would return to the remaining documents, and I'm
24 prepared to deal with the remaining documents now or at the end
25 of the day.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3369
47CLSAT1
1 MR. BARKOW: Is your Honor referring to the Sattar
2 search documents?
3 THE COURT: Yes.
4 MR. BARKOW: We don't have those here at this point.
5 So if we could bring them toward the end of the day, that would
6 be helpful.
7 THE COURT: All right.
8 MS. BAKER: Your Honor, two -- I guess I'd say
9 logistical points. The first is: I anticipate that at the end
10 of the direct examination of Agent Kerns, who would be the
11 government's first witness this morning, that the government
12 will offer into evidence the DVD -- trial DVD of recorded
13 telephone calls. I anticipate that there will be defense
14 objection. I had a Second Circuit decision that I wanted to
15 have here to cite to your Honor. I realize that I've left it
16 back in my office. If it's possible before the jury comes in
17 for me to have two minutes to run back and get it, I would
18 appreciate that.
19 The other thing is, I hope that it won't happen but it
20 may become necessary for me to request breaks more frequently
21 than usual because I'm just getting over a bout of either food
22 poisoning or the stomach flu.
23 THE COURT: Yes. I hope you're fine.
24 Mr. Tigar?
25 MR. TIGAR: With respect to Ms. Baker's statement, we
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3370
47CLSAT1
1 would ask the Court's guidance as to how the Court wishes to
2 address the admissibility issue. We had anticipated that Agent
3 Elliott would come back once file searches were done based on
4 the Court's orders issued when he was here. We also have
5 received some additional Jenks material on Mr. Kerns, but I'm
6 holding it up for your Honor, it's about 30 pages, and there
7 may well be more as a result of the examination.
8 Regardless of whether the Court thinks we're done or
9 not, we also have done some research and want to make some
10 arguments under Tropeano and Campanelli which are the cases
11 that your Honor cited in ruling on the motion in limine, so I
12 await your Honor's guidance. That's Point 1.
13 Point 2: The Kerns declaration that was filed with
14 your Honor last September, I believe -- yes, September 8 --
15 discussed the degradation of the tapes, the electromagnetic
16 tapes on which data was stored, and the problems that the FBI
17 had in retrieving those tapes, the original files, and copying
18 them. I want to cross-examine him about what he said in that
19 declaration about the process that led to the production of the
20 files that are on the DVD that Ms. Baker intends to produce.
21 And I also want to cross-examine him about some of the
22 notations made by Ms. Baker in conversations with Mr. Kerns
23 over time that have been provided to us as Jenks material,
24 showing problems that he was having in that respect.
25 I read your Honor's July 1 in limine ruling as telling
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3371
47CLSAT1
1 me I can't cross-examine about the discovery production
2 process, including the file difficulties that arose in the MP3
3 transition. I don't intend to ask him about any of that. I do
4 intend to ask him about the matters to which I've just
5 referred. And I didn't want to get stopped on some idea that,
6 you know, I wasn't reading your Honor's in limine motion, which
7 I did reread this morning, correctly.
8 THE COURT: Ms. Baker?
9 MS. BAKER: Your Honor, in preparation for Agent
10 Kerns' testimony, I questioned him very carefully about whether
11 any of the recordings on this trial DVD came from tapes that
12 were sufficiently deteriorated or that were, you know,
13 noticeably deteriorated such that any different measures had to
14 be taken to access the contents of those tapes. For example,
15 as Agent Kerns had indicated in his declaration, there were
16 certain tapes that were taken to a classified outside
17 contractor for assistance in accessing the copies of those
18 tapes by the contractor making exact duplicates of them because
19 the contractor had equipment that somehow was better able to
20 read the contents of those tapes than the equipment that the
21 FBI had. I have been told and have gone over this carefully
22 with Agent Kerns that none of the recordings on this trial DVD
23 resulted from that process.
24 MR. TIGAR: Excuse me, your Honor, is Agent Kerns in
25 the courtroom?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3372
47CLSAT1
1 MS. BAKER: No.
2 MR. TIGAR: Oh, okay. I'm just being careful. I'm
3 sorry.
4 THE COURT: Continue.
5 MS. BAKER: As I said, it's Agent Kerns' belief,
6 having looked into the issue specifically at my request, that
7 none of the recordings on the trial DVD resulted from that
8 process. So the government would respectfully submit that that
9 process, whatever happened with regard to deteriorated tapes,
10 is irrelevant to the issue of the accuracy and therefore the
11 authenticity of the particular calls on the trial DVD.
12 THE COURT: Okay. Well, the witness can certainly be
13 cross examined with respect to any of the calls on the trial
14 DVDs; and can be cross examined about the possibilities of
15 degradation and tape break and all of that with respect to
16 whether it happened on any of these calls. And if there is
17 something in the declaration, it can be done in a hypothetical
18 way that, you know, there can be problems of degradation and
19 the like, and to explore with him whether that occurred on any
20 of these calls.
21 The gist of the motion in limine was to exclude
22 problems that occurred with respect to the 85,000 calls or data
23 that were produced in the discovery process to lend credence to
24 the way in which these calls were transcribed and produced,
25 because there was an insufficient connection between that and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3373
47CLSAT1
1 these calls. But the items that the defense counsel referred
2 to, well, each of those subjects -- and to the extent that they
3 can be touched on as relating to these calls rather than the
4 calls in discovery would be their cross-examination.
5 MR. TIGAR: I think I understand your Honor's
6 direction, and I'll attempt to follow it.
7 I will say this: It is our theory of the case that
8 the Lockheed Martin system, not conceding anything about the
9 Raytheon system, destroyed original files deliberately and as a
10 result of a conscious decision that there was, as early as
11 1997, clear knowledge on the part of all levels of government
12 of the pendency of potential litigation; that the files in this
13 case, dating back particularly to the first part of that
14 system, '96, '97, '98, '99, were stored on a medium that the
15 FBI knew to be unweildy; that there were breakages and
16 degradations; that the jury would be free to disbelieve this
17 agent when he says that none of those degradations and
18 breakages happened here, disbelief being important because
19 these are digital files and digital files are susceptible, very
20 easily, of being altered.
21 This is not Campanelli. In Campanelli, the dupe in
22 original rule's invoked. The government hasn't invoked in any
23 rules at this point, but it's our theory that the dupe in
24 original rule is unavailable in this case because of what has
25 happened here, and that serious dangers would accompany the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3374
47CLSAT1
1 invocation of that rule.
2 Agent Kerns will be tendered to us, I believe, as an
3 expert. He possesses a masters degree in telecommunications.
4 And therefore, if that happens and the government can confirm
5 it, I would expect to examine him with respect to this
6 methodology.
7 I say this because the misuse of technological and
8 scientific evidence is the most fruitful field for
9 postconviction relief growing in the United States today. And
10 events in this district in recent cases show us how things can
11 be tripped up. Your Honor, I am too old to have the desire to
12 try this case more than once. And therefore, we -- I'm just
13 announcing that so I propose the scope, and of course I'll ask
14 my questions one at a time, but I don't understand your Honor
15 to have precluded any cross-examination, to preclude the areas
16 I've just dealt with.
17 THE COURT: You know, I had the motion in limine. I
18 explained in response to your statements how these areas can be
19 explored with this witness.
20 That leads to the issue of timing, and of course it --
21 if you've recently gotten 3500 material that you need an
22 opportunity to review, I would call a break before the cross so
23 that you could do that. I don't know the volume and complexity
24 of that 3500 material. I certainly will take representations
25 with respect to how long it takes to review the material, and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3375
47CLSAT1
1 I'm sure that they would be made to me in good faith.
2 MS. BAKER: Your Honor, with respect to the last point
3 first, some of the 3500 material, as Mr. Tigar represented a
4 few minutes ago, are little notations that I made of telephone
5 conversations that I had with Agent Kerns regarding his
6 preparation of the trial DVD. I'm holding up as an example for
7 your Honor a page of Government Exhibit 3525C. And your Honor
8 will see that basically there's a little more than one line of
9 handwritten text on that page. And so a number of the pages of
10 3500 material fit that description, just one or a very few
11 lines of handwritten notation on the page.
12 And I will proffer to the Court and counsel that Agent
13 Kerns has not seen my handwritten notes. Mr. Tigar is, of
14 course, free to try to use them in his cross-examination, but
15 Agent Kerns has not personally seen them.
16 The remainder of Agent Kerns' 3500 material is a
17 resume which is about a half a page; his declaration, which the
18 defendants have had since it was originally filed in September
19 of 2003; and then some lists, I believe two different copies of
20 lists of telephone calls. And those were lists that were
21 supplied to Agent Kerns for him to know which audio files he
22 should copy onto the trial DVD. So the 3500 material here is
23 simply not voluminous or complicated.
24 The other thing I wanted to advise the Court and
25 counsel is it is not the government's intention to offer Agent
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3376
47CLSAT1
1 Kerns as an expert witness. Rather, in the government's view,
2 he is a fact witness as to what he personally did and what he
3 observed other people doing regarding the copying of files and
4 the preparation of the trial DVD.
5 MR. TIGAR: I wasn't complaining about the volume of
6 the Kerns 3500, your Honor. I'm sorry if I didn't express
7 myself.
8 THE COURT: No, perhaps I misunderstood you. Because
9 I -- you know, when you told me that you just got some 3500
10 material and -- I wanted to make it clear that you would have
11 whatever time you needed to review it before cross.
12 MR. TIGAR: Thank you, your Honor. I'm sorry, I did
13 not speak clearly. I was suggesting that I not have to argue
14 the admissibility issue until we've had the promised production
15 that your Honor mentioned this morning, and an opportunity to
16 review it.
17 Just two examples: First, Agent Elliott's experience,
18 we'd like to know that. But also we've asked for the algorithm
19 or program, and that's important because it's the algorithm or
20 program that's going to determine whether or not the admitted
21 destruction of the 60,000 files precludes the government from
22 relying on the duplicate originals rule, because the algorithm
23 would be the mechanism by which data was changed. And that of
24 course, not only would we have to have it, but it would take
25 us, you know, a day or so to look at it.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3377
47CLSAT1
1 THE COURT: Okay. Well --
2 MR. TIGAR: Agent Kerns may know about this.
3 THE COURT: I'd certainly listen to argument after
4 Agent Kerns's testimony, whether it be after direct or cross,
5 to see whether I should rule at that time. Based upon
6 everything that's before me.
7 Okay.
8 MR. PAUL: Your Honor, Mr. Barkow mentioned something,
9 bringing up issues at the end of the day. I just wanted to
10 alert the Court that I would request a break at 4:30 because
11 this is one of the days of the month in which Mr. Sattar --
12 THE COURT: Sure, we don't have to deal with them at
13 the end of the day. That's fine.
14 MR. PAUL: He does have to get back as soon as
15 possible.
16 THE COURT: You just tell me when we otherwise have to
17 break.
18 MR. PAUL: Thank you.
19 THE COURT: And maybe we can do other documents in the
20 middle of the day if we find that there has to be a break for
21 some reason. So we'll take five minutes now.
22 (Recess)
23 MR. TIGAR: Your Honor, did the court rule on the CIPA
24 letter that arrived this morning?
25 THE COURT: I didn't get a letter this morning.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3378
47CLSAT1
1 MR. TIGAR: It was just addressed to us. May I hand
2 up the copy that we received, your Honor?
3 THE COURT: All right.
4 MR. TIGAR: I see the Court does not have a copy. To
5 whom may I hand it?
6 THE COURT: Mr. Fletcher.
7 MR. TIGAR: I'm sorry. I wrote a note on it, your
8 Honor. That's my handwriting.
9 THE COURT: Okay.
10 MR. BARKOW: Your Honor, this letter obviously was
11 written by Ms. Baker, and --
12 THE COURT: She's not back.
13 MR. BARKOW: And she's not back yet.
14 THE COURT: Let me return your copy to you. The
15 government can provide me a copy.
16 MR. TIGAR: I have a clean copy that does not have my
17 notes, an extra. May I show it to the government so they know
18 what we're talking about?
19 MR. MORVILLO: That is fine.
20 THE COURT: All right. Are we ready to bring in the
21 jury?
22 MR. TIGAR: Yes, your Honor.
23 THE COURT: Bring them in.
24 MS. BAKER: Your Honor, I have an additional copy of
25 that letter if the Court would like.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3379
47CLSAT1
1 THE COURT: You just came in after Mr. Tigar gave me a
2 clean copy. Oh, unless you're talking about a different
3 letter.
4 MS. BAKER: The letter of this morning.
5 THE COURT: No, I have that. Because it was the other
6 letter, the July 10th letter, that you were going to file. And
7 my copy was also marked up.
8 MS. BAKER: I can hand that up as well.
9 THE COURT: You're welcome to just file that in the
10 Clerk's office, if they'll take it.
11 MS. BAKER: I'm being told they won't take it.
12 THE COURT: Mr. Fletcher's away, so hand it up to my
13 law clerk. Thank you.
14 DEPUTY CLERK: Jury entering.
15 (Jury enters courtroom)
16 (In open court)
17 THE COURT: All right. Please be seated all.
18 Good morning, ladies and gentlemen.
19 JURORS: Good morning.
20 THE COURT: It's good to see you all. My preference
21 is always to bring you out as close to 9:30 as possible because
22 your time is very important to me. The beginning of the day is
23 a particularly fruitful time for me to discuss legal issues
24 with counsel before we begin. That's why sometimes there is a
25 delay. I try to do this as quickly as I can, and I try to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3380
47CLSAT1
1 begin as early as I can. Sometimes it ends taking longer than
2 I would like, and so there's a delay bringing you into the
3 courtroom. It's completely my responsibility and I appreciate
4 your indulgence. It has nothing to do with you or any of the
5 issues that you decide, and I very much appreciate your
6 understanding and indulgence, and I really do believe that it
7 expedites, facilitates, makes it easier and quicker for your
8 time here in the courtroom. You actually have relatively few
9 interruptions when you're in the box and that's because we
10 discuss a lot before you're in the courtroom.
11 Again, I appreciate your indulgence.
12 Okay, the government will call the next witness.
13 MS. BAKER: Your Honor, the government calls Scott
14 Kerns.
15 (Witness sworn)
16 DEPUTY CLERK: You may be seated. Please state your
17 full name; spell your last name slowly for the record.
18 THE WITNESS: Scott L. Kerns, K-e-r-n-s.
19 DEPUTY CLERK: N-e-s?
20 THE WITNESS: N-e-s -- I'm sorry, K-e-r-n-s.
21 SCOTT L. KERNS,
22 called as a witness by the Government,
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MS. BAKER:
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3381
47CLSAT1 Kerns - direct
1 Q. Agent Kerns, let me just ask you to make sure that you
2 speak into the microphone and try to speak clearly so that
3 everyone will be able to hear all your testimony.
4 A. I will.
5 Q. Actually, your Honor, may I have a minute? This microphone
6 is directly between Agent Kerns and I.
7 Who do you work for?
8 A. The Federal Bureau of Investigation.
9 Q. When did you start working for the FBI?
10 A. In August of 1998.
11 Q. What was your position when you started with the FBI?
12 A. I was in training for four months and then I was sent to
13 the New York office.
14 Q. Are you a special agent with the FBI?
15 A. Yes, I am.
16 Q. When you first arrived in the New York office, what sort of
17 work were you doing?
18 A. I was assigned to a white collar crime squad for several
19 years.
20 Q. How long did you work on the white collar crime squad?
21 A. From roughly mid 1999 until my current assignment, so that
22 would be May of 2002.
23 Q. Very generally, what do you mean when you use the phrase
24 "white collar crime"?
25 A. I was assigned to a health care fraud squad.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3382
47CLSAT1 Kerns - direct
1 Q. And you mentioned you received your current assignment in
2 May, 2002; is that right?
3 A. That's correct.
4 Q. What is your current assignment?
5 A. I'm assigned as a technically trained agent on one of our
6 technical operations squads.
7 Q. Is that squad part of what's known as the special
8 operations division?
9 A. Yes, it is.
10 Q. What, if any, additional training did you receive at the
11 time that you were assigned to the special operations division?
12 A. The FBI's provided -- on several occasions over the last
13 two years I've taken courses in networking, basic electronics,
14 system administrator training on several different systems, as
15 well as on-the-job training the entire time I've been assigned
16 to the squad.
17 Q. Let me just go back over a little bit of what you said in
18 your last answer. You said some of the training was in
19 networking?
20 A. That's correct.
21 Q. Very generally, as you understand it, what does that phrase
22 refer to?
23 A. When I say "networking", I'm referring to networking
24 computers together, how to do it, cutting wires, putting them
25 together, things like routers, hubs. How you can do stuff like
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3383
47CLSAT1 Kerns - direct
1 that, network a system together and make it work.
2 Q. You also made reference to system administrator training;
3 is that correct?
4 A. That's correct.
5 Q. Generally, what does that refer to?
6 A. I've taken several classes as well as training from
7 different contractors who provide the systems that we have.
8 They come in and you learn how to become a system
9 administrator, which is maintaining, daily checks, maintenance,
10 how to review the system, how to fix problems, how to do just
11 about everything for a particular system.
12 Q. What does it mean to be a system administrator in terms of
13 the level of access that a system administrator has to a
14 particular computer system as compared to any other users?
15 A. Different computer systems have different levels of access.
16 If you're a system administrator, it means that you can do just
17 about anything with the system. When you have the password and
18 the capabilities, you can add users, subtract users, do just
19 about anything to the system, add machines, take machines out,
20 just about anything you want to do.
21 Q. As of the time that you became a member of the special
22 operations division in May of 2002, which system made by which
23 company was the FBI's New York office using to automatically
24 record telephone calls in investigations like the one at issue
25 in this case?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3384
47CLSAT1 Kerns - direct
1 A. I'm sorry, are you asking since I've come aboard?
2 Q. As of the time that you became a technical agent, which
3 system was being used?
4 A. It's a system that is manufactured by Raytheon Corporation.
5 Q. Did you receive particular training with respect to the use
6 or the operation or maintenance of the Ratheon system?
7 A. Yes, I have.
8 Q. Would you describe, generally, that training?
9 A. I received training by other system administrators in my
10 office as well as people who work for Raytheon had come up at
11 different times to provide additional training for me, answer
12 questions regarding the system and how it worked, and different
13 things along that nature.
14 Q. What, if any, duties have you been performing since you
15 became a technical agent with regard to the operation or
16 maintenance of the Raytheon system?
17 A. Some of the things that I'm responsible for are making sure
18 that daily checks are done, any maintenance issues are
19 reviewed, and handled properly, whether it's in-house or if we
20 have to call Raytheon corporation for repairs. Making sure
21 that users have access, that the system is operating optimally
22 and working properly.
23 Q. In what format does the Raytheon system record telephone
24 calls and related data?
25 A. It's in a format known as .voc, v-o-c.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3385
47CLSAT1 Kerns - direct
1 Q. Agent Kerns, what did you do before you joined the FBI?
2 A. I was a communications officer in the Marine Corps.
3 Q. How long were you in the Marine Corps?
4 A. I was in the Marines for five and a half years.
5 Q. What is your educational background?
6 A. I have an accounting degree from Villanova University, and
7 I have a masters in telecommunications management from Stephens
8 Institute of Technology.
9 Q. Would you describe generally the kinds of duties and
10 responsibilities you had as a communications officer in the
11 Marine Corps?
12 A. Sure. I was assigned to essentially three different units
13 while I was there. My jobs included running communications and
14 working in an air wing. I was a communications officer for an
15 infantry battalion setting up radio networks making sure
16 everybody could talk to each other, working with crypto systems
17 and a computer system that ran throughout our unit.
18 And the last job I had, I ran a network of high
19 frequency and satellite communications for a unit that was
20 responsible for going into Southeast Asia and looking for
21 remains of people that were lost during the Vietnam War.
22 Q. Let me ask you please as we continue, try to talk a little
23 more slowly so that everyone will be able to fully follow
24 everything that you have saying.
25 A. I'm sorry. Sorry.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3386
47CLSAT1 Kerns - direct
1 Q. As part of your duties as a technical agent in the FBI's
2 New York office, were you responsible for making copies of
3 certain recorded telephone calls for use at this trial?
4 A. Yes, I was.
5 Q. Onto what medium, what form of recording medium, were you
6 asked for copy the recorded calls?
7 A. I copied them onto CDs and DVDs.
8 Q. Your Honor, may I approach the witness?
9 THE COURT: Yes.
10 Q. Agent Kerns, I've handed you an item that's been marked by
11 identification as Government Exhibit 1000. Do you recognize
12 Government Exhibit 1000?
13 A. Yes, I do.
14 Q. What is it?
15 A. It's a DVD that I created for this case.
16 Q. How are you able to recognize that DVD in particular as one
17 that you created?
18 A. Because of what I wrote on it.
19 Q. Which is what?
20 A. Sattar trial, DVD Number 1. It has my initials and the
21 date that I did it.
22 Q. What is on that DVD marked as government Exhibit 1000?
23 A. Telephone calls associated with this case.
24 Q. Agent Kerns, how did you know which particular calls to
25 copy onto that DVD, government Exhibit 1000?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3387
47CLSAT1 Kerns - direct
1 A. I was provided a list by the U.S. Attorneys office that
2 requested specific calls to be put on this DVD.
3 Q. What information did that list provide to you as far as how
4 you would identify the particular calls?
5 A. It's listed by --
6 MR. TIGAR: Objection, your Honor, without the
7 document being admitted. He's talking about a list.
8 THE COURT: All right.
9 MS. BAKER: Your Honor, the list has been provided.
10 THE COURT: Do you want the list?
11 MR. TIGAR: We'll take a second here, your Honor.
12 MS. BAKER: I'm sorry, I didn't hear that.
13 THE COURT: The objection was withdrawn.
14 MR. TIGAR: If I can take a moment, your Honor.
15 (Off the record)
16 MR. TIGAR: Thank you, your Honor. Counsel does have
17 it.
18 MS. BAKER: I'm sorry, may I have my last question
19 read back, please?
20 (Record read)
21 A. It listed the telephone number as well as what we refer to
22 as the date time group which is the date and the exact time of
23 the telephone call.
24 (Continued on next page)
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3388
47CSSAT2 Kerns - direct
1 Q. Now, regarding the calls that you copied onto Government
2 Exhibit 1000, on what medium did the FBI have those recordings
3 stored?
4 A. Currently they are stored on magneto optical disks, MO
5 disks.
6 MS. BAKER: Your Honor, may I approach?
7 THE COURT: Yes.
8 Q. Agent concerns, I have handed you two items that are
9 already in evidence as Government Exhibits 1304 and 1305. Let
10 me ask you to look first please at Government Exhibit 1305.
11 Do you recognize that?
12 A. Yes.
13 Q. What is that?
14 A. This is an MO disk.
15 Q. And that particular disk, is it a black one?
16 A. Yes, it is.
17 Q. Is that the type of disk you were referring to in your last
18 answer when you said the calls were stored on magneto optical
19 disks?
20 A. Correct.
21 Q. For some of the calls that you copied onto Government
22 Exhibit 1000, were they previously stored on another medium
23 other than magneto optical disk?
24 A. Yes, they were.
25 Q. What was the other medium?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3389
47CSSAT2 Kerns - direct
1 A. 8 millimeter data cartridges.
2 Q. Let me ask you to look please at Government Exhibit 1304.
3 Do you recognize 1304?
4 A. Yes, I do.
5 Q. What is 1304?
6 A. This is an 8 millimeter data cartridge disk.
7 Q. Of the type you were referring to in your last answer?
8 A. That is correct.
9 Q. The calls that were previously on the 8 millimeter data
10 cartridges or tapes, how did they get onto magneto optical
11 disks?
12 A. Through a conversion process.
13 Q. When you first joined the Special Operations Division,
14 became a technical agent in May of 2002, was that conversion
15 process already ongoing?
16 A. Yes, it was.
17 Q. Once you became a technical agent starting in May 2002, did
18 you personally perform the conversion of any calls from the 8
19 millimeter tapes to magneto optical disks?
20 A. No, I did not.
21 Q. Were you present while the conversion of any 8 millimeter
22 tapes to magneto optical disks was done?
23 A. Yes, I was.
24 Q. Where was that conversion done?
25 A. In our computer room.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3390
47CSSAT2 Kerns - direct
1 Q. Would you describe for the jury generally what that
2 computer room is like?
3 A. It's a raised floor, heavily air conditioned room where we
4 maintain all of our electronic surveillance systems that I am
5 responsible for and it has a number pad key lock on the door
6 that each individual agent that has access to that has their
7 own key pad or their own code to punch in to have door open.
8 Q. Can anyone from FBI enter a code into that key pad and get
9 into the room?
10 A. No.
11 Q. How is the access limited or to what group of people?
12 A. It's limited by the security division that limits only
13 people that are from the technical division that need access to
14 that space.
15 Q. By whom was the conversion of the 8 millimeter tapes to the
16 magneto optical disks performed?
17 A. I am sorry, by whom?
18 Q. Who? Who performed that conversion?
19 A. Technical personnel assigned to my squad and people in our
20 office.
21 Q. Did you watch any of that conversion as it was going on?
22 A. Yes.
23 Q. Would you describe for the jury what you saw as far as how
24 the conversion was done?
25 A. Sure. We had set up or once I came to the squad they had
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3391
47CSSAT2 Kerns - direct
1 several machines set up in a row against one wall in our
2 computer room. The way it worked was we took one of these 8
3 millimeter cartridges and it would be put in a tape reader in a
4 computer. It would read it. They would run the conversion
5 program, which was a software program, to take the information
6 off of here, write it to a hard drive of the computer, and then
7 all of that was moved to however many MOs were required based
8 on the fact that this tape can hold a lot more information than
9 just one of these on both sides. And once that was done, all
10 of these MOs were pulled out, labeled, and maintained with the
11 original tape.
12 Q. Are you familiar with the equipment that was used to carry
13 out that conversion of the 8 millimeter tapes to the MO disks?
14 A. Yes.
15 Q. Based on your familiarity with that equipment, was it
16 possible during the conversion process for anyone doing the
17 conversion to listen to any of the recordings?
18 A. No, there was no play back feature available.
19 Q. In what format are recordings once they are on the magneto
20 optical disks?
21 A. They are in a VOC format.
22 Q. You testified earlier when I asked you about the Raytheon
23 system that the Raytheon system records calls in the VOC
24 format, is that correct?
25 A. That is correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3392
47CSSAT2 Kerns - direct
1 Q. And this conversion process that was used for the 8
2 millimeter tapes, did that result in the recordings ending up
3 in that same VOC format on the magneto optical disks?
4 A. That is correct.
5 Q. Now, I want to ask you some specific questions about the
6 process through which you created the DVD that is in front of
7 you, which is marked as Government Exhibit 1000, but before I
8 start asking you about the steps in that process, let me ask
9 you is there a diagram that would assist you in explaining that
10 process to the jury?
11 A. Yes, there is.
12 Q. Agent Kerns, you should see on the screen in front of you
13 now a document marked as Government Exhibit 1310.
14 Do you recognize that document?
15 A. Yes, I do.
16 Q. Is that document the diagram that was would assist you in
17 explaining the copying process to the jury?
18 A. Yes, it would.
19 MS. BAKER: Your Honor, I offer Government Exhibit
20 1310 as a demonstrative exhibit.
21 MR. TIGAR: No objection, your Honor.
22 THE COURT: Government Exhibit 1310 received in
23 evidence.
24 (Government's Exhibit 1310 received in evidence)
25 MS. BAKER: For the record, your Honor, I just
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3393
47CSSAT2 Kerns - direct
1 provided a color copy of it to counsel. I previously provided
2 a black and white copy.
3 Your Honor, may we now publish Government Exhibit 1310
4 to the jury?
5 THE COURT: Yes.
6 MS. BAKER: I am going to shift it over a little bit
7 for now.
8 Q. Agent Kerns, as I take you through this next series of
9 questions please feel free to refer to Government Exhibit 1310
10 to the extent that it would assist you in answering the
11 questions.
12 For each of the calls that you ultimately copied onto
13 Government Exhibit 1000, the DVD, did you start by personally
14 locating the magneto optical disk containing the call?
15 A. In some cases, yes.
16 Q. Let me ask you first about the some cases in which you did
17 and then we will come back to the other cases.
18 For those calls where you personally located the call
19 on the magneto optical disk, how did you find which particular
20 magneto optical disk contained a call or calls that you have
21 been asked to copy onto DVD?
22 A. I had the list from the U.S. Attorney's Office requesting
23 certain telephone calls. All of the conversion product in the
24 case of the MOs, there is a label on there that lists the
25 date/time range for that particular MO and it was just a matter
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3394
47CSSAT2 Kerns - direct
1 we have it all in order so if it was a call from 6/9/99, I just
2 had to find the MO from that time period and at that point put
3 it in and look for the specific call.
4 Q. Now, what you just described related to the MOs created by
5 the conversion process you described earlier?
6 A. That is correct.
7 Q. What about MOs or magneto optical disks that were recorded
8 by the Raytheon system?
9 A. The Raytheon system ones we have, that system has a data
10 base where you can put in a telephone number and ask a date
11 range. So I would put a date range in around 6/9/99 and it
12 would provide me an ID or a volume label which then I look at
13 our list of serial numbers and find out which one it is and
14 pull it off the shelf.
15 Q. In order to be able to do that process that you have just
16 described, identifying a particular magneto optical disk that
17 contained the particular call, what level of access does a
18 person need to the computer system?
19 A. In the case of the Raytheon one you have to be a system
20 administrator and have access to see the archived data base.
21 Q. The magneto optical disks themselves that were made by the
22 Raytheon system, as they are stored in the FBI's New York
23 office, what sort of label or identifying information is
24 physically on those magneto optical disks?
25 A. There is a classification assigned to it, as well as there
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3395
47CSSAT2 Kerns - direct
1 is a volume label that is unique that particular side, one side
2 of the MO in most cases. So that would mean two different
3 volume labels, as well as there is -- I can't remember, I
4 believe there is some other identifying information but the
5 classification and the volume label are two of the most
6 important things.
7 Q. Does the identifying information on the outside of a MO
8 include the name of any person who was intercepted in the
9 recorded calls?
10 A. No.
11 Q. Does it include the telephone numbers of the calls on that
12 MO disk?
13 A. No.
14 Q. Does it include the dates of the calls on that particular
15 MO disk?
16 A. I cannot recall if it has specific time ranges assigned to
17 it. However, I do know that when we put it on the shelf there
18 is a piece of paper that we print out that has date ranges
19 assigned to each volume side so you generally know when the
20 time frame was for the Raytheon system.
21 Q. Given what is and is not on the labels of the MOs or the
22 pieces of paper that are physically located with the MOs, is it
23 necessary in order to find a particular call to refer to the
24 computerized indexing system that you described earlier?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3396
47CSSAT2 Kerns - direct
1 Q. Now, once you found a particular magneto optical disk
2 through either of the methods that you have described, how did
3 you find a specific call or calls that you have been asked to
4 copy within that magneto optical disk?
5 A. If you look at the diagram here, what I would do is I would
6 take one of these -- I would take the magneto optical disk and
7 magneto optical disk in number 1, a reader, I would put that
8 in, which is attached to a computer, and then I would do a
9 search on that particular MO for the call that I am looking
10 for.
11 Q. When you were referring to the diagram just now, that was
12 Government Exhibit 1310 and were you referring to position
13 number 1 in the diagram?
14 A. Yes.
15 Q. You referred to a magneto optical disk reader, is that the
16 phrase you used?
17 A. That is correct.
18 Q. Is that basically just a device that connects to the
19 computer so that the computer can then allow you to access the
20 information on the magneto optical disk?
21 A. Yes, it is.
22 Q. And you said that you would search within the information
23 on the magneto optical disk?
24 A. That is correct.
25 Q. What kind of information were you searching for?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3397
47CSSAT2 Kerns - direct
1 A. I was searching for a specific telephone number and, more
2 importantly, the actual date of that telephone number and time.
3 Q. When you said in your last answer the date and time, you
4 meant of the particular call you were looking for?
5 A. Yes.
6 Q. Within the magneto optical disk that you were searching,
7 where within the disk or on the disk was the data that you were
8 searching through in looking for particular dates, times and
9 telephone numbers?
10 A. It was in what is called the VOC header, which is the
11 beginning of a telephone call. There is text data in there and
12 that is what I was searching through to find the specific
13 calls.
14 MS. BAKER: Your Honor, may I publish to the jury
15 again Government Exhibit 1001N, which is already in evidence?
16 THE COURT: Yes.
17 Q. Agent Kerns, I am showing you a document that is already in
18 evidence as Government Exhibit 1001N, and specifically I am
19 showing you the upper portion of the first page of that
20 document.
21 Do you recognize that document?
22 A. Yes, I do.
23 Q. What is it?
24 A. you open a VOC audio file in a text format, this is what
25 you are going to see. And it's the first part of 1001N is the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3398
47CSSAT2 Kerns - direct
1 VOC header.
2 Q. And so when you testified a few minutes ago that in
3 searching for particular calls you were searching data
4 contained in the headers of the VOC files, is this the
5 information that you were referring to?
6 A. Yes, I was.
7 Q. Let me ask you, if you would, to indicate for the jury by
8 description or it may work that if you touch your screen, I am
9 not so good with this technology, but it may work if you touch
10 your screen an arrow may appear on the monitors. If you would
11 show the jury where.
12 A. Sorry about that. I wanted to see if it worked.
13 Q. That is all right. Now we know it works.
14 A. Okay.
15 Q. If you would show the jury where in that header information
16 is what you have referred to as the date/time group or the date
17 and time of the telephone call.
18 A. Sure. It's in about three-quarters of the way down the
19 text in the "session start equals" line.
20 Q. Have you now put a little blue dot on the screen basically
21 next to where that field appears?
22 A. Yes.
23 Q. For the record, would you read off what it says in this
24 particular document, Government Exhibit 1001N, what is the
25 information in that "session start" field?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3399
47CSSAT2 Kerns - direct
1 A. It states first 4 numbers, the year 1996, then 2 numbers,
2 the month, 04, then 2 numbers for the date, the 22nd, and then
3 2 numbers for the hour, 2 numbers for the minute, hours 10, 10
4 a.m., minute is 03 and seconds is 54.
5 Q. So the data in this session start field in Government
6 Exhibit 1001N would reflect that the particular call from which
7 this data came occurred on April 22nd, '96 at 10:03.54 a.m., is
8 that right?
9 A. That is correct.
10 Q. Where in Government Exhibit 1001N does it reflect the
11 telephone number on which this call was recorded?
12 A. Up at the top of the page in the T number field, T number,
13 T number equals is the target number.
14 Q. Have you now put some blue spots on the monitor roughly
15 next to where that field appears?
16 A. Yes.
17 Q. Would you read off for the record what is the telephone
18 number on which this particular call shown in this document was
19 recorded?
20 A. Yes. It's listed as 17184423513.
21 Q. Now I am going to continue asking you about the copying
22 process so I am going to put back on the monitor, your Honor,
23 if I may, Government Exhibit 1310.
24 THE COURT: All right.
25 Q. Now, we have just finished talking about the process by
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3400
47CSSAT2 Kerns - direct
1 which you search within particular MOs for particular calls,
2 correct?
3 A. Correct.
4 Q. Roughly where on this diagram, Government Exhibit 1310, is
5 that stage of the process represented?
6 A. In position number 1.
7 Q. Once you found a particular call or calls that you were
8 looking for on a magneto optical disk, what did you do with the
9 recording of each of those calls?
10 A. Once I found, searched the call and found it, then I
11 established conductivity to a computer in our office in the
12 same computer room that had a DVD burner and I would copy the
13 call over to that computer.
14 Q. Where in Government Exhibit 1310 is that stage in the
15 process represented?
16 A. Position number 2.
17 Q. Now, while you were doing that copying of the files from
18 the magneto optical disk to the computer with the DVD drive or
19 burner, did you listen to any of the recordings?
20 A. No.
21 Q. By the way, Special Agent Kerns, do you understand Arabic?
22 A. No.
23 Q. Now, before I take you further forward through the process,
24 let me double back and ask you about something else that you
25 mentioned earlier. I started out by asking you whether you had
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3401
47CSSAT2 Kerns - direct
1 personally started with the magneto optical disk for each of
2 the calls and you said for some yes. Let me now ask you about
3 the other calls.
4 A. Some of the calls from the original list I obtained from
5 the U.S. Attorney's Office we had purchased for this case five
6 servers which we essentially just used as very large hard
7 drives where we had copied a lot of information, and when I say
8 information, I am referring to telephone calls for this case to
9 provide to the U.S. Attorney's Office. Some of those calls
10 were still on those hard drives, so I created folders on each
11 one of the hard drives where I found particular calls that were
12 asked for. I created a folder, and I think I named it either
13 Sattar or trial and copied those calls to that folder.
14 Q. Let me ask you a little bit more about how the recordings
15 came to be on those servers or hard drives.
16 Did you personally copy files from the various magneto
17 optical disks onto those servers?
18 A. No.
19 Q. Who did that copying?
20 A. Technical personnel in our office.
21 Q. Did that copying occur in that same computer room that you
22 described earlier?
23 A. Yes.
24 Q. Were those other technical personnel working under your
25 supervision?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3402
47CSSAT2 Kerns - direct
1 A. Yes, they were.
2 Q. Were you present when those calls were being copied from
3 their magneto optical disks onto the servers?
4 A. Yes.
5 Q. From what you saw of that copying process, were the copies
6 made onto the servers exact copies of what was on the magneto
7 optical disks?
8 A. Yes.
9 Q. From what you saw of that copying process, did anyone who
10 was doing it listen to any of the calls while they were copying
11 them to the servers?
12 A. No.
13 Q. Was it possible given the equipment for them to listen to
14 the calls while copying them?
15 A. No, there is no playback feature.
16 Q. By the way, to your knowledge, did any of the other
17 technical personnel who have been involved in these processes
18 with you understand Arabic?
19 A. No.
20 Q. Now, once the calls had been put on the servers, how did
21 you locate on the servers particular calls that you were
22 looking to copy?
23 A. Essentially the same manner that I looked for them on MOs,
24 I searched -- actually there I searched the telephone number
25 and the full date/time group of the particular call and it
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3403
47CSSAT2 Kerns - direct
1 would tell me if it was there or not.
2 Q. In conducting those searches, were you searching the same
3 VOC header information of the files as you described earlier?
4 A. Yes.
5 Q. And when you located within any one of the servers any call
6 or calls that you were looking for, what did you do with those
7 call or calls?
8 A. I copied them to the folder that I created on each
9 particular server so that I knew where everything was so I
10 could copy it to position number 2 in the slide that the
11 computer that had the DVD burner.
12 Q. Let me ask you to explain a little more.
13 What do you mean when you say you copied it to a
14 folder on the server?
15 A. I created essentially a folder on the server which is --
16 it's just an area -- I created a specific area to put stuff
17 because we had a lot of information on these and on some of the
18 servers there might be two calls, on some of them there might
19 be ten calls, so I moved them so they were in one particular
20 place so when I logged into that computer I could find them
21 again with relative ease.
22 Q. And when you say that you copied or moved calls on the
23 server to this folder that you created, was that copying an
24 exact copy into that folder?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3404
47CSSAT2 Kerns - direct
1 Q. Once the calls that you had located were in the folders on
2 the servers, what happened next with those recordings, with
3 those calls?
4 A. I had one of our technical personnel establish a link
5 because those computers were essentially sitting in a
6 stand-alone method. They weren't connected to any type of
7 network, so I had them network those servers one at a time to
8 the computer in position number 2 on the slide and then I had
9 them copy that information over to that computer for me.
10 Q. Did they do that copying under your supervision?
11 A. Yes.
12 Q. From what you saw did that copying process result in exact
13 copies of those recordings ending up on the hard drive of the
14 computer in position number 2 on the diagram?
15 A. Yes.
16 Q. From what you saw of that copying process, did anyone
17 listen to any of the calls during that copying process?
18 A. No.
19 Q. Given the equipment or technology that was being used, was
20 it possible for the calls to be listened to when they were
21 being copied from the servers onto this computer with the DVD
22 drive?
23 A. No.
24 Q. Agent Kerns, on Government Exhibit 1310, as it currently
25 appears, is there a depiction of the process of the calls being
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3405
47CSSAT2 Kerns - direct
1 copied from magneto optical disks to servers and then from the
2 servers to the hard drive of the computer shown in position
3 number 2?
4 A. No.
5 MS. BAKER: Your Honor, may I approach the witness?
6 THE COURT: Yes.
7 Q. Agent Kerns, I have handed you a copy of Government Exhibit
8 1310 and a pen. If you would take a moment and just add onto
9 that copy of Government Exhibit 1310 some representation of
10 that process of how some of the calls went from magneto optical
11 disk to the servers and then onto the computer shown in
12 position number 2.
13 A. Sure.
14 Q. Are you finished?
15 A. Finished. It's a little crude but --
16 MS. BAKER: Your Honor, I have re-marked this copy of
17 the document as Government Exhibit 1310A and I have shown it to
18 Mr. Tigar. I would offer it into evidence at this time as a
19 demonstrative exhibit.
20 MR. TIGAR: No objection, your Honor.
21 THE COURT: All right.
22 MS. BAKER: May I publish it to the jury?
23 THE COURT: Yes, Government Exhibit 1310A received in
24 evidence as a demonstrative.
25 (Government's Exhibit 1310A received in evidence)
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3406
47CSSAT2 Kerns - direct
1 Q. Agent Kerns, I am showing you the upper left-hand corner of
2 what is now in evidence as Government Exhibit 1310A. Is that
3 the representation that you drew of the process involving the
4 calls on the servers?
5 A. Yes.
6 Q. Let me ask you to just explain it a little more for the
7 jury. You have 5 boxes all in a row underneath the word
8 servers.
9 What do those 5 boxes represent?
10 A. Those are the actual servers.
11 Q. And at the left-hand edge of the diagram, a little bit to
12 the left and below the first one of those boxes, is some other
13 little rectangular shape or shapes.
14 What does that represent?
15 A. I was trying to draw essentially two MOs the same way they
16 are drawn down on box number 1 showing the fact that MOs, the
17 information from the MOs was loaded to the servers.
18 Q. And then in between the representation of the MOs and the
19 representation of that left-hand server, is that an arrow?
20 A. Those are conductivity lines that go from the servers to
21 that computer, which is how we got the information to that
22 computer.
23 Q. And, then, as you described earlier, once the recordings
24 were copied onto the servers, then they were copied to the
25 computer with the DVD burner which is depicted in position
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3407
47CSSAT2 Kerns - direct
1 number 2 on the diagram?
2 A. That is correct.
3 Q. Before I continue taking you forward through the process,
4 let me ask you one additional question about the magneto
5 optical disks.
6 On any one magneto optical disk, are there calls from
7 more than one telephone number?
8 A. Yes.
9 Q. Now, once you had all the calls that you had been asked to
10 copy to DVD on the hard drive of the computer shown in position
11 number 2, what was the next step that you took in the process
12 of creating what ultimately became Government Exhibit 1000?
13 A. The next step was I put them all in one particular folder
14 that I think I labeled Sattar DVD one. I opened up a software
15 program for burning DVDs. I copied all those files to that
16 program, inserted a DVD, and burned it.
17 Q. When you copied the files into the program for burning the
18 DVD, were those copies of the files exact copies?
19 A. Yes.
20 Q. And when you say that you burned the files to DVD, what do
21 you mean when you use the word burn?
22 A. A DVD burner actually burns it to the bottom surface of the
23 DVD so that once I took this out the information was on here to
24 be listened to.
25 Q. Does that burning process involve an exact copying of the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3408
47CSSAT2 Kerns - direct
1 files in the same format onto the DVD?
2 A. Yes.
3 Q. Where in Government Exhibit 1310A, and now we have the A
4 version up here on the monitor, where is that stage in the
5 process depicted?
6 A. That is stage number 3.
7 Q. Now, when you burned copies of the recordings onto DVD, did
8 you only make one DVD or did you make more than one?
9 A. I made more than one.
10 Q. Why did you make more than one DVD?
11 A. I was requested to.
12 Q. Did you mark those DVDs in any way when you made them?
13 A. I believe that I wrote Sattar DVD, trial DVD on it, and I
14 believe at that time I also dated them.
15 Q. In the process that you just described of burning copies of
16 the recordings onto DVD, did you listen to any of the
17 recordings?
18 A. I think after -- since this was the first time we did this,
19 I think I did try and open one of the calls on a player to make
20 sure it actually did play and just to insure that it worked
21 correctly and once I realized it did, then I just closed the
22 program. I knew that it worked.
23 Q. Did you listen to an entire call?
24 A. No.
25 Q. As you sit here today, do you remember anything about the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3409
47CSSAT2 Kerns - direct
1 content of that part of a call that you listened to?
2 A. No.
3 Q. Do you remember what language it was in?
4 A. No.
5 Q. Did you know who the parties were to that conversation?
6 A. No.
7 Q. The DVDs that you made that are represented in position
8 number 3 on the diagram, did you give 2 -- withdrawn. Let me
9 ask you a different question first.
10 You testified that you made more than one DVD.
11 A. Correct.
12 Q. Did you make each DVD by copying the same information from
13 the computer onto the DVD?
14 A. Yes.
15 Q. So you made each DVD from the computer, you didn't make the
16 DVDs from each other?
17 A. No, from the computer.
18 Q. Did you give two of those identical DVDs to anyone?
19 A. Yes, they were handed over to our language department.
20 Q. After some period of time, did you receive those two
21 identical DVDs back?
22 A. Yes, I did.
23 Q. Can you estimate about how much time went by between when
24 you made them and handed them over and when you got them back?
25 A. I think it was a period of a couple of weeks.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3410
47CSSAT2 Kerns - direct
1 Q. From whom did you receive back those two identical DVDs?
2 A. Two of our language specialists.
3 Q. What are their names?
4 A. Victoria Benjamin and Nabila Banout.
5 Q. Would you describe how it came about that you received
6 those DVDs back from those two translators?
7 A. Yes, each one of them either called me or came to my desk
8 and stated that they had finished the work that they were doing
9 on those at which time I provided them a pen and they initialed
10 off and I believe they dated them and then handed them back to
11 me.
12 Q. How were you able to recognize the DVDs that you were
13 receiving back from them as the same DVDs that you had made
14 that are shown in position 3 on Government Exhibit 1310A?
15 A. Because they had my handwriting on them.
16 Q. What did you do with those two DVDs once you received them
17 back from the translator?
18 A. I maintained them.
19 Q. Did you at some point copy any of the information from one
20 of those two identical DVDs?
21 A. I did. At some point I did because I was requested to.
22 Q. And why did you copy that information from those DVDs that
23 you received back from the translators?
24 A. I was told by the U.S. Attorney's Office that not all the
25 calls that were currently on that DVD were going to be used
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3411
47CSSAT2 Kerns - direct
1 during the proceedings and that they wanted some of them
2 removed.
3 Q. Now, let me ask you about that.
4 When you made those DVDs that are represent bid
5 position number 3 in the diagram, could those DVDs be altered
6 in any way once you had made them?
7 A. No.
8 Q. Why not?
9 A. Well, they are DVD ROM read only memory because I actually
10 for whatever reason, I actually tried to delete the calls
11 myself off of the DVDs before I realized what I was doing was
12 impossible because we thought that would be an easier way with
13 chain of custody, and you can't do it.
14 Q. You said you actually tried and discovered you couldn't
15 delete files. Aside from deleting, as you understand it, is it
16 possible in any way to edit or alter files once they are
17 written to this type of DVD?
18 A. No.
19 Q. So in order to end up with a DVD that had fewer calls on
20 it, what did you do next with one of those identical DVDs that
21 you received back from the translators?
22 A. I took that DVD and then shown in position 4, which it was
23 the same computer as position 2, I took all that information
24 and just copied all of it back to a folder on the computer.
25 Q. When you copied those recordings from that DVD onto the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3412
47CSSAT2 Kerns - direct
1 hard drive of that computer, were those exact copies?
2 A. Yes.
3 Q. Did you listen to any of the recordings during that copying
4 process?
5 A. No.
6 Q. What did you do next after you had copied the recordings
7 onto the hard drive of the computer?
8 A. Once I copied those recordings, I put in a separate folder
9 the calls that were not to be used or were not going to be used
10 during the proceedings, and the rest of them I then -- I opened
11 up the software for the burning of DVDs, inserted a new DVD,
12 and then burned it to that particular DVD.
13 Q. As you described earlier, did that process result in exact
14 copies of those recordings on the DVD?
15 A. Yes.
16 Q. Where is that process shown on the diagram marked as
17 Government Exhibit 1310A?
18 A. Position 5.
19 Q. The DVD that is represented in position 5 on the diagram,
20 is that DVD the one that is in front of you and marked as
21 Government Exhibit 1000?
22 A. No, it's not.
23 Q. As shown in position 5 on the diagram?
24 A. Oh, I am sorry, yes, the one that I did -- the one that I
25 copied and made is position 5, that is correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3413
47CSSAT2 Kerns - direct
1 Q. And is that the disk in front of you that is marked as
2 Government Exhibit 1000?
3 A. Yes.
4 Q. How are you able to recognize Government Exhibit 1000 as
5 the DVD that you made in the last step of this process?
6 A. Once I finished the process, I actually initialed, dated
7 and put Sattar Trial DVD on it, number 1, again.
8 Q. And, again, when you copied the files onto that DVD, were
9 those exact copies?
10 A. Yes.
11 Q. Did you listen to any of the files during that copying
12 process?
13 A. I don't believe so, no.
14 MS. BAKER: Your Honor, may I approach the witness?
15 THE COURT: Yes.
16 Q. Agent Kerns, I have handed you a document that has been
17 marked for identification as Government Exhibit 1000L. Do you
18 recognize that document?
19 A. Yes, I do.
20 Q. What is Government Exhibit 1000L?
21 A. This is -- it's listed as the 127 audio files on DVD marked
22 as Government Exhibit 1000 and Government exhibit numbers for
23 each file.
24 Q. Did you compare this list against the files that are
25 actually on the DVD marked as Government Exhibit 1000?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3414
47CSSAT2 Kerns - direct
1 A. Yes, I did.
2 Q. And did you do something on this list that indicated that
3 you had compared and found that they matched?
4 A. Yes, I did.
5 Q. What did you do?
6 A. I signed my name and dated it.
7 Q. Does that appear in the upper right-hand corner right under
8 the exhibit sticker?
9 A. Yes.
10 Q. At the same time that you signed and dated this list, did
11 you also make some sort of a marking on the DVD itself,
12 Government Exhibit 1000?
13 A. Yes, I did.
14 Q. How did you mark on the DVD?
15 A. I actually put another set of my initials and the date that
16 I had reviewed it.
17 Q. So now your initials and the date appear twice on the DVD
18 Government Exhibit 1000, is that right?
19 A. That is correct.
20 Q. And just to summarize, when were the two times that you put
21 them on there?
22 A. The first was when I actually -- the day that I burned it
23 to the DVD, which is in black ink, and the second, which is in
24 red ink, is when I reviewed Government Exhibit 1000L and
25 realized that all the named files on this Government Exhibit
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3415
47CSSAT2 Kerns - direct
1 were on this DVD.
2 MS. BAKER: Your Honor, may I approach the witness?
3 THE COURT: Yes.
4 Q. Agent Kerns, I have just handed you another object which is
5 marked for identification as Government Exhibit 1015.
6 Do you recognize Government Exhibit 1015?
7 A. Yes, I do.
8 Q. What is Government Exhibit 1015?
9 A. It's a CD, I believe, I am not sure. Yes, it's a CD that I
10 created with one telephone call.
11 Q. How are you able to recognize that particular CD as one
12 that you created?
13 A. This is my handwriting right here, which is the name of the
14 file.
15 Q. Was that a call that you were requested to put onto some
16 sort of a disk?
17 A. Yes.
18 Q. Let me ask you to refer back to the diagram, Government
19 Exhibit 1310A. Let me ask you to start -- withdrawn.
20 Essentially was that CD created through the same sort
21 of process that you just finished describing that you used for
22 Government Exhibit 1000?
23 A. Yes.
24 Q. Let me ask you to start at position 2 on the diagram when
25 you have gotten that particular call onto the computer that has
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3416
47CSSAT2 Kerns - direct
1 the ability to burn a DVD.
2 Did you use the same computer? Could that same
3 computer also burn a CD?
4 A. Sure, yes.
5 Q. So once you had located the particular call and put it on
6 that computer, what was the next step in the process of
7 creating that CD, Government Exhibit 1015?
8 A. What I did was I took this particular call, I opened up the
9 software for burning, put the CD in, and located this
10 particular call and copied it and it burned to the CD so that I
11 could provide it back to the case squad for their requirements.
12 Q. So that particular CD, is that particular CD basically the
13 result of stage 3 in the process as shown in the diagram?
14 A. Actually, it would be more like stage 5 because at that
15 point I had this information on the computer from getting the
16 original DVD back from the translators. That information, as I
17 testified before, I copied back to the hard drive of the
18 computer, which is the same -- 3 and 4 are the same computer.
19 So I copied that back. That information was still resident on
20 that computer in the folder that I had it and that is how I
21 copied this particular call.
22 Q. Is the copy on the CD an exact copy of the recording?
23 A. Yes.
24 Q. Can the CD be altered once it's created?
25 A. Not to my knowledge, no.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3417
47CSSAT2 Kerns - direct
1 Q. Agent Kerns, have you recently finished creating yet
2 another DVD of recordings of calls for use at this trial?
3 A. Yes.
4 Q. Did you create that DVD through essentially the same
5 process that you testified to here today?
6 A. Yes.
7 Q. How many of the steps in the process did you go through in
8 the creation of the additional DVD?
9 A. The additional DVD is a process where I am using positions
10 1, 2 and 3.
11 MS. BAKER: Your Honor, may I have a minute?
12 THE COURT: Yes.
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3418
47CLSAT3 Kerns - direct
1 Q. Agent Kerns, before I ask you about the item I just handed
2 you, let me ask you more questions about the CD marked as
3 Government Exhibit 1015. First of all, just to make sure that
4 the record is clear, how many recorded calls are on that CD?
5 A. Just one.
6 Q. And what is the date and the time of that call and the
7 telephone number?
8 A. Its date and time -- the date is April 27 of 1999; the time
9 is 18:29:45; and the telephone number is 1-718-4423-513.
10 Q. Why were you asked to put that particular call by itself on
11 the CD?
12 A. I was told that the language specialists were having --
13 Q. Hold on -- sorry.
14 MR. TIGAR: Objection.
15 THE COURT: Sustained.
16 MS. BAKER: Your Honor?
17 THE COURT: There was an objection, and I sustained
18 it.
19 MS. BAKER: Your Honor, I'm offering it for its effect
20 on the witness.
21 THE COURT: Sustained. He had a conversation; he did
22 something.
23 BY MS. BAKER:
24 Q. Agent Kerns, let me ask you to turn to the other DVD I just
25 handed you which is marked for identification as Government
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3419
47CLSAT3 Kerns - direct
1 Exhibit 1300. Do you recognize that DVD?
2 A. Yes, I do.
3 Q. How are you able to recognize that DVD?
4 A. My handwriting on it.
5 Q. Does it bear your initials and the date?
6 A. Yes, it bears the name Sattar Trial, DVD Number 2, my
7 initials, and the date that I did it.
8 Q. And is that the second DVD that you created through the
9 process shown in Positions 1 through 3 of the diagram?
10 A. That's correct.
11 MS. BAKER: Your Honor, may I have a minute to confer?
12 THE COURT: Yes.
13 (Off the record)
14 MS. BAKER: Your Honor, I have no further questions
15 for the witness at this time, and the government offers into
16 evidence the DVD marked as Government Exhibit 1000, although
17 specifically the government offers the nonaudio portions of the
18 recordings on the DVD as well as those portions of the audios
19 that correspond to the excerpted transcripts that the
20 government will be presenting.
21 And the government offers the CD marked as Government
22 Exhibit 1015, again, in the same fashion. That is, we offer
23 the nonaudio data along with the portions of the audio that
24 correspond to the excerpted transcript that we will present.
25 And we also offer the list marked as Government
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3420
47CLSAT3 Kerns - direct
1 Exhibit 1000L, which lists each of the audios on the DVD, and
2 the government exhibit number assigned to each of the
3 individual audios.
4 MR. TIGAR: If the direct is over, your Honor, we
5 consent to -- no objection to 1000L as in Lima.
6 THE COURT: All right.
7 MR. TIGAR: We'd ask, for the rest, to be able to
8 inquire.
9 THE COURT: Actually, this is a convenient time for us
10 to take our mid morning break, ladies and gentlemen. We'll
11 break for 10 minutes. Please remember my continuing
12 instruction not to talk about the case; keep an open mind.
13 All rise, please.
14 (Jury Exits the courtroom)
15 MR. TIGAR: Your Honor, I had a brief question.
16 THE COURT: Sure. Please be seated.
17 MR. TIGAR: The September 8 declaration,
18 September 8th, 2003 declaration of Mr. Kerns was filed under
19 seal. I don't know, but if any occasion arises to ask him
20 anything concerning it, I don't know if the government wishes
21 to maintain it under seal or wishes there to be some procedure
22 that ought to be used...
23 MS. BAKER: Your Honor, if I might have one minute to
24 review it.
25 THE COURT: Why don't you talk and we'll take our 10
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3421
47CLSAT3 Kerns - direct
1 minutes.
2 (Morning recess)
3 (In open court; jury not present)
4 THE COURT: A couple of things. First, without
5 checking the transcript, would the offer subject to the
6 limitations, 1000 and 1015 -- was 1300 offered also or not?
7 MS. BAKER: It was not, your Honor, because I didn't
8 provide it to Mr. Tigar until this morning. I thought he might
9 want to time to review it.
10 I would say for the record we would hope that if your
11 Honor rules on the admissibility of 1000 and 1015, that that
12 might result in us not needing to bring Agent Kerns back again
13 to get into evidence, Government Exhibit 1300, but we're
14 obviously prepared to bring him back if we need to. We believe
15 we've laid the adequate foundation, but I wanted to allow
16 Mr. Tigar time to adequately inspect the exhibit before I
17 offered it.
18 THE COURT: All right. The second issue, I'm told
19 that the one juror, and I'm happy to -- in fact, let me talk to
20 you just briefly.
21 (Continued on next page)
22 (Whereupon, the following one page, Pp. 3422, was
23 sealed by order of the Court)
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3423
47CLSAT3 Sealed
1 (In open court; jury not present)
2 THE COURT: Let's put Agent Kerns back on the stand.
3 MS. BAKER: Your Honor, as to Agent Kerns'
4 declaration, it had previously been unsealed but for the
5 word ".voc" that had been redacted. The government at this
6 time has no objection to it being unsealed.
7 Also, I want to advise the Court we have with us at
8 government counsel table an additional AUSA assisting on
9 certain aspects of the case named Michael Farbiarz.
10 THE COURT: All right. Bring in the jury.
11 (Continued on next page)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3424
47CLSAT3
1 (Jury enters the courtroom)
2 THE COURT: Please be seated, all. All right, Agent
3 Kerns is on the stand. Mr. Fletcher?
4 DEPUTY CLERK: Agent Kerns, you are reminded that
5 you're under oath.
6 THE WITNESS: Yes.
7 THE COURT: Mr. Tigar, you may examine.
8 CROSS EXAMINATION
9 BY MR. TIGAR:
10 Q. Agent Kerns, I'm going to place up on the screen and then
11 zoom in on a portion of Government Exhibit 1000L in evidence
12 because I want by way of illustration to ask you about one
13 particular call on here, and that's the top line where I'm
14 placing my finger.
15 All right? Do you see that?
16 A. Yes, I do.
17 Q. And your understanding is that this is a call that occurred
18 on April 22nd, 1996. Is that correct?
19 A. That's correct.
20 Q. And 19960422 reflects that, correct?
21 A. That's correct.
22 Q. And it took place at 10:03:54, correct?
23 A. That's correct.
24 Q. Now, is it your understanding that that is 24-hour time?
25 A. Yes, the system's recorded in 24-hour time.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3425
47CLSAT3 Kerns - cross
1 Q. And the next digits here represent a phone number; is that
2 correct?
3 A. That's correct.
4 Q. And the next letters, VOC, reflect .voc, which is a file
5 format, correct?
6 A. Correct.
7 Q. Now, the size of this file is 7822 KB. Is that kilobytes?
8 A. Yes, it is.
9 Q. So we're looking at a file about a call that is 7,822,000
10 bytes; is that correct?
11 A. That's correct.
12 Q. And then it says, type. That's .voc file, right?
13 A. Correct.
14 Q. And then under this it says Last Modified, 4-13, 2004,
15 20:10. Do you see that?
16 A. Yes, I do.
17 Q. The modified date is different from the create date,
18 correct?
19 A. Yes it is.
20 Q. And the modified date is a date the computer -- or it's a
21 date in time, rather, the computer puts on there; is that
22 right?
23 A. Yes, it did.
24 Q. And that's based on the internal clock of the computer?
25 A. Yes, it is.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3426
47CLSAT3 Kerns - cross
1 Q. Now, as we're describing these changes in the period when
2 you were working on this case, beginning in 2002, were you
3 using a Windows-based system?
4 A. No.
5 Q. Were you using a system that let you read out a directory
6 of the files by file names?
7 A. Yes.
8 Q. So that when you were looking at your screen, you would see
9 this information that I'm pointing to that ends in the suffix
10 VOC, correct?
11 A. Once it was converted and the file was named that, yes,
12 then I could view it as that.
13 Q. Now, the word "modified" is a word that means changed,
14 correct?
15 A. Yes.
16 Q. Well, when last modified, means last changed, correct?
17 A. Correct.
18 Q. May I approach, your Honor?
19 I'm going to show you now what has been furnished to
20 us as Kerns 3525-F, Foxtrot, which I've marked as LS-16.
21 Do you recognize that, Sir?
22 A. Yes, this is the files of --
23 Q. Don't --
24 A. Yes, I do.
25 Q. We've got to do an authentication thing.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3427
47CLSAT3 Kerns - cross
1 A. I've got it. Yes, I do.
2 Q. Is that your document?
3 A. Yes, it is.
4 Q. Did you prepare it?
5 A. This document? No, I did not.
6 Q. Did you review it for accuracy?
7 A. This particular document, if it is the same as the document
8 that is on the screen now, if it's exactly the same, then it
9 would be true and accurate.
10 Q. Would you look at it carefully, look at the top line. I
11 can't ask you about a document not in evidence.
12 A. Uh-huh.
13 Q. And I want to know: Who created this?
14 A. That I -- I don't know who created this particular
15 document.
16 Q. Do you see your name on it?
17 A. Yes, I do.
18 Q. Do you know how your name came to be on it?
19 A. No, I don't.
20 Q. Have you ever seen it before?
21 A. This document? I believe I have, yes.
22 Q. When did you see it?
23 A. I think this was the document that was prepared regarding
24 DVD Number 1 and the information that was recorded on DVD
25 Number 1.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3428
47CLSAT3 Kerns - cross
1 Q. Was that a document prepared to accurately reflect the
2 information that was on DVD Number 1?
3 A. Yes, it was.
4 MR. TIGAR: I offer it.
5 MS. BAKER: Your Honor, I object. Based on the
6 foundation and lack of personal knowledge by the witness.
7 BY MR. TIGAR:
8 Q. To your knowledge, Sir, was that document created in the
9 regular course of business of the Federal Bureau of
10 Investigation?
11 A. I really don't remember this document being created or when
12 it was created or whether I did create it.
13 Q. I didn't ask you that, Sir. Based on what you know as the
14 man in charge, as you've testified, was that document created
15 in the regular course of business of the Federal Bureau of
16 Investigation?
17 A. I don't know.
18 MR. TIGAR: I offer it, your Honor. Would the Court
19 like to look at it?
20 MS. BAKER: Your Honor, I have the same objection.
21 Your Honor, I could, outside the witness, proffer additional
22 information relating to the document.
23 THE COURT: All right. I'll sustain at this point and
24 you can discuss it with me at the break.
25 BY MR. TIGAR:
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3429
47CLSAT3 Kerns - cross
1 Q. Now, Sir, you testified this morning about a process by
2 which DVD's were created, correct?
3 A. Correct.
4 Q. I'm going to place up here Government Exhibit 1310A, which
5 you can see. And I want to start back. And I'd like you to
6 keep in mind the call that I asked you about, the 7,822,000
7 byte call, okay?
8 Now, that file, with a modified date of April 13,
9 2004, would appear on the DVD that's represented here by the
10 Number 5, correct?
11 A. That's correct.
12 Q. And that's the DVD that was created on the computer
13 Number 4, correct?
14 A. That's correct.
15 Q. And the -- from 4 to 5, that's an exact copy, correct?
16 A. That's correct.
17 Q. In other words, if you went back to 4, we'd find a file
18 with 7,822 kilobytes in the .voc format, correct?
19 A. That's correct.
20 Q. Now, before it got to 4, it was on 3, correct?
21 A. That's correct.
22 Q. And on 3, we would find a file with 7,822,000 kilobytes
23 with a .voc suffix, correct?
24 A. That's correct.
25 Q. Exact same file?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3430
47CLSAT3 Kerns - cross
1 A. It should be, yes.
2 Q. When you say it should be, that is, you see on the screen
3 the same number of kilobytes in the same format, correct?
4 A. Yes.
5 Q. And based on your experience running those computers, you
6 would expect that the machine accurately copied the file,
7 correct?
8 A. That's correct.
9 Q. Now, in your machine, in 4, do you have an audit program?
10 A. I don't understand what you mean by audit program.
11 Q. Do you have a program that tells -- where the computer
12 tells the operator if anybody has been in the file, and if so,
13 what, if any, changes they've made?
14 A. No, we have -- we do not have any program like that.
15 Q. Do you have a program called Checksum?
16 A. I don't know if there is a Checksum program on that
17 computer.
18 Q. Do you know whether or not the computer is capable of
19 running something called Disk Copy or File Copy?
20 A. The burning software that I use does have the capability of
21 running Disk Copy.
22 Q. So between 4 and 5, there is that capability, correct?
23 A. That's correct.
24 Q. Did you run Disk Copy on 5?
25 A. No, I did not.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3431
47CLSAT3 Kerns - cross
1 Q. But so far as you know, there's nothing like a Disk
2 Copy-type program on 4, correct, to internally keep track of
3 what changes are made in files?
4 A. I'm sorry, are you asking me if there's a Disk Copy or an
5 audit program?
6 Q. Well, there is a Disk Copy, correct?
7 A. Correct.
8 Q. Now, does the FBI have a program that permits it to
9 manipulate files? Do you have something from the Royal
10 Canadian Mounted Police that permits you to do that?
11 MS. BAKER: Objection. Vague and relevance.
12 THE COURT: Rephrase.
13 Q. In the time that you were working on these phase, beginning
14 in May of 2002, down to today, are you aware whether or not the
15 FBI has a program licensed from the Royal Canadian Mounted
16 Police that permits it to manipulate computer files?
17 MS. BAKER: Same objection.
18 THE COURT: Overruled.
19 A. I am not aware of that program, no.
20 Q. Therefore, you've never run any program like that that you
21 know of?
22 A. No.
23 Q. Let's go back to 3. Three, you said, as you sit there
24 today, you think that the file in 3 would be the same as the
25 one in 4, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3432
47CLSAT3 Kerns - cross
1 A. That's correct.
2 Q. And the file on 2 -- we went back to 2 -- would we see a
3 file name that is identical to the one that we had here, the
4 19960422 with 7,822 kilobytes?
5 A. Yes, you would.
6 Q. And if we went to 4, what last modified date would we see?
7 A. I don't know.
8 Q. You know it would not be the 13th of April, 2004, right?
9 A. I don't know. I didn't -- that was not something I looked
10 at when I took the government exhibit and copied it.
11 Q. Well, if we went to 3, would we find a last modified date
12 that was different from April 13th, 2004?
13 A. I don't know.
14 Q. When did you create the files that would be on 3? When did
15 you make that copy, take the step from 2 to 3?
16 A. That was done several months ago. I don't know the exact
17 date.
18 Q. You say that was done. Did you do it?
19 A. Yes.
20 Q. So you did it?
21 A. Yes.
22 Q. All right. If it was done several months ago, was it done
23 before April 13th, 2004?
24 A. No, it couldn't have been.
25 Q. It would not have been done before April 13th, 2004?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3433
47CLSAT3 Kerns - cross
1 A. The DVD could not -- it's my understanding, no, that the
2 DVD could not have been burned before April 13th of 2004.
3 Q. How about when the files got from the servers -- let's look
4 here. We've got some servers up here, correct?
5 A. Correct.
6 Q. Onto 2.
7 A. Uh-huh.
8 Q. Now, when were the files copied from the servers to
9 Number 2?
10 A. Over a range of time.
11 Q. Do you know -- when you say a range of time, was that done
12 before April 13th, 2004?
13 A. Some of them could, sure.
14 Q. Well, I'm asking you about this particular file.
15 A. I don't know if that was done before April 13th, 2004, no.
16 Q. How would we find out the answer to the questions I've
17 asked about, the date on which these various things were done?
18 A. I'm not sure how to tell exactly what date it was
19 transferred from the servers or from me, transferring that
20 information over to the Windows computer.
21 Q. Okay. How are we to know, Sir, when this file was modified
22 before it was modified on April 13th, 2004? How would we find
23 that out?
24 A. The files -- I understand that it says Last Modified, but
25 the only thing that was done was they were copied.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3434
47CLSAT3 Kerns - cross
1 Q. I didn't ask you that, Sir. I asked you how would we find
2 out -- I'll ask you about the modifications later.
3 A. Uh-huh.
4 Q. How would we find out the date on which a computer would
5 record a last modified date before the modified date, the
6 change date, of April 13th, 2004?
7 A. I really don't think I understand what you're asking of me
8 with regard to that one particular file.
9 Q. Let me put 1310A back up again. Will there -- if we went
10 back onto the computer that's Number 2 here, all right, does
11 the file -- would we, today, find a file that has that file
12 name, 1996, etc., and ending in .voc? Will we find that there?
13 A. Yes, it's still in the computer.
14 Q. And would that contain a modified date?
15 A. I'm assuming, yes.
16 Q. So we could look at that?
17 A. Yes.
18 Q. Do you know what that file modified date is?
19 A. No, I don't.
20 Q. Do you know if it's the same or different than April 13th,
21 2004?
22 A. No, I don't.
23 Q. How about these servers up here? If we went back there,
24 would we find on any of them a file with that file name?
25 A. I don't know if that particular file was on this -- located
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3435
47CLSAT3 Kerns - cross
1 on the servers or if I pulled it from the original magneto
2 optical disk.
3 Q. But if it was pulled from the servers, would we find a file
4 name and a date?
5 A. Yes, you would.
6 Q. And as you sit here today, you don't know which is which,
7 correct?
8 A. No, I don't know where that particular file came in.
9 Q. Does the FBI in the office where you're the system
10 administrator keep a log of each time a file is modified along
11 the road from electromagnetic tape to what you brought to
12 court?
13 A. No.
14 Q. Now, you testified that from the magneto optical disk --
15 that's Number 1 here, right, that's in a .voc format, correct?
16 A. That's correct.
17 Q. And that's copied to the computer, Number 2, the hardware,
18 correct?
19 A. In some cases, yes.
20 Q. Well, with respect to the telephone call that I'm asking
21 you about, 1926, April 22nd, that call, was that on a magneto
22 optical disk at some time?
23 A. At some time, yes.
24 Q. And was that copied to this computer you listed here as
25 Number 2?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3436
47CLSAT3 Kerns - cross
1 A. At some point, yes.
2 Q. Now, was there a modified -- let me withdraw that.
3 In order to copy it, you had to hook up the magneto
4 optical disk player which is represented here by this icon
5 that's Number 1, correct?
6 A. Correct.
7 Q. You had to hook that up to the computer?
8 A. That's correct.
9 Q. And that would be like -- is it like when I hook up a
10 floppy drive to my computer, would be the same sort of a thing?
11 A. Essentially, yes.
12 Q. It's just a -- now, in computer talk, you call it a
13 peripheral, correct?
14 A. Uh-huh, that's correct.
15 Q. You hook up this peripheral to there, and you copy the
16 magneto optical disk, correct?
17 A. I would have copied the file over to the numbered position
18 2, yes.
19 Q. And at that time, was it just a copy operation?
20 A. Yes.
21 Q. So from 1 to 2 to 3 to 4 to 5 -- these are all files in
22 the .voc format, correct?
23 A. That's correct.
24 Q. And if we went back across here, would we expect to see
25 7,822 kilobytes for each one of those files?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3437
47CLSAT3 Kerns - cross
1 A. Yes, I would assume so.
2 Q. Well, do not assume so. Sir, it's important, isn't it,
3 that you don't lose data, correct?
4 A. It is important that you do not lose data.
5 Q. So give us your best view of this, if the system is working
6 properly, we should see 7822 KB on each one of these steps,
7 correct?
8 A. Yes.
9 Q. And each one time you would see a last modified date,
10 correct?
11 A. That I'm not sure.
12 Q. Now -- but 1996, etc., the April call, didn't start out
13 being recorded on a magneto optical disk, did it?
14 A. No, it did not.
15 Q. And when you first encountered it in the course of your
16 business, what format -- what kind of a medium was it stored
17 on?
18 A. It was on one -- because it was 1996, it was on one of the
19 eight millimeter data cartridges.
20 Q. I'm holding this up. It's been identified or is in
21 evidence as Government Exhibit 1304. Do you recognize it?
22 A. Yes, I do.
23 Q. Now, in order to use these things, you have to have a
24 player, correct?
25 A. That's correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3438
47CLSAT3 Kerns - cross
1 Q. Now, when you first encountered it on one of these magnetic
2 tapes like 1304, what format was it in?
3 A. It was in the format from the company that purchased it.
4 They had a proprietary format that it was in.
5 Q. What does proprietary mean?
6 A. That it belonged to -- specifically to the company that
7 produced the product that it was recorded on.
8 Q. Lockheed Martin?
9 A. Lockheed Martin.
10 Q. And then you say it was algorithmic, correct?
11 A. Uh-huh, correct.
12 Q. A-l-g-o-r-i-t-h-m?
13 A. Yes.
14 Q. And then an i-c?
15 A. Right.
16 Q. Computer programs are algorithms?
17 A. Yes.
18 Q. Not all algorithms are programs, right?
19 A. Yes.
20 Q. So can we talk about programs?
21 A. Sure.
22 Q. So this was a program that created the file, right?
23 A. Yes, it was.
24 Q. Now, when you first encountered the file, we'll put this
25 down here on the electromagnetic computer tape, right? It was
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3439
47CLSAT3 Kerns - cross
1 in this proprietary format?
2 A. That's correct.
3 Q. And you had to do something to change it into .voc, right?
4 A. Yes, we did.
5 Q. Now, are you aware that the file on the tape is actually --
6 was compressed?
7 A. Yes.
8 MS. BAKER: Objection, lack of personal knowledge.
9 THE COURT: Overruled.
10 Q. How many bytes were in this file when you first saw it?
11 A. I have no idea.
12 Q. Was it more or less than 7,822,000?
13 A. I don't know.
14 Q. Did you look?
15 A. No.
16 Q. Did you care?
17 A. The only time I saw those files were after they were
18 converted.
19 Q. Were after they were converted?
20 A. Correct.
21 Q. Did you have anything to do with converting the eight
22 millimeter tape files to the magneto optical disk files?
23 A. No, I did not.
24 (Continued on next page)
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3440
47CSSAT4 Kerns - cross
1 Q. Under your supervision, did authorized FBI technical
2 personnel diligently attempt to retrieve from the
3 electromagnetic tapes?
4 A. Yes.
5 Q. And were they operating under your supervision?
6 A. Yes, they were.
7 Q. And when they were operating under your supervision, these
8 authorized technical personnel, did they report to you on what
9 they were doing?
10 A. Yes.
11 Q. And did you discover that at times that certain
12 electromagnetic tapes had degraded over time?
13 MR. BAKER: Objection, relevance.
14 THE COURT: Foundation. I will allow a few questions.
15 Go ahead.
16 Q. You can answer.
17 A. Well --
18 MR. BAKER: I am sorry, your Honor, if the question is
19 calling for what the witness was told by other people I also
20 have a hearsay objection.
21 THE COURT: All right, sustained.
22 Q. What are the names of the people that were doing this work,
23 sir?
24 A. There were several people, several technical agents.
25 Technical agents who work with me, Agent Koo, some of our other
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3441
47CSSAT4 Kerns - cross
1 technical people, Jeff Marsh --
2 Q. I am sorry, Chuck Marsh?
3 A. Jeff Marsh.
4 Q. Jeff Marsh, okay.
5 A. Matt Ballow.
6 Q. I will do this before we go through a full list.
7 Who was it who reported degradation to you?
8 MR. BAKER: Objection, hearsay.
9 THE COURT: On the subject I will allow it.
10 Q. Who reported degradation to you?
11 A. I don't remember exactly who told me that there was issues
12 with some of the tapes.
13 Q. Did you make a record that there were issues with respect
14 to some of the tapes?
15 A. I don't remember making any type of documentation saying
16 that we had problems with specific tapes.
17 Q. Did you participate in hiring someone to address the
18 issues?
19 MR. BAKER: Objection, relevance.
20 THE COURT: Overruled.
21 A. I aided in attempting to take some of the problem tapes and
22 getting them imaged so we could get the data off of them.
23 Q. My question was did you participate in hiring somebody to
24 address the problem?
25 A. I don't have the authority to hire anyone.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3442
47CSSAT4 Kerns - cross
1 Q. Did you participate in the hiring of somebody?
2 MR. BAKER: Asked and answered.
3 THE COURT: Overruled.
4 A. Yes.
5 Q. Was that somebody that was to be hired outside the bureau?
6 A. Yes, it was.
7 Q. In order to hire somebody there has to be documentation,
8 correct?
9 A. Sure, with regard to contracts and what not, yes.
10 Q. Have you seen documentation about the hiring of someone to
11 address these issues?
12 A. I might have seen something regarding the request and the
13 authorization to hire the company to work on these, yes.
14 Q. Well, you say you might have, sir. As you sit there today,
15 what is your best memory?
16 A. I know that paperwork somewhere existed but I can't tell
17 you honestly that I remember reviewing something within our
18 office.
19 Q. Did you meet with people who were attempting to address
20 these issues?
21 MR. BAKER: Your Honor, I renew the relevance
22 objection.
23 THE COURT:: All right, sustained as to form.
24 Q. Can you -- let's start back then.
25 You don't know, do you, the computer program or the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3443
47CSSAT4 Kerns - cross
1 computer program or file type in which material was saved on
2 the electromagnetic tapes, correct?
3 A. Other than it was proprietary, no.
4 Q. Do you know, sir, whether or not that program represented
5 compressed or uncompressed data?
6 MR. BAKER: Objection, asked and answered, lack of
7 personal knowledge.
8 THE COURT: Overruled.
9 A. It was my understanding that it was compressed.
10 Q. Do you know where, if any, files of uncompressed data
11 exist?
12 MR. BAKER: Objection, lack of personal knowledge.
13 THE COURT: Do you know?
14 THE WITNESS: I don't know.
15 Q. Do you know a man named Michael Elliott?
16 A. Yes, I do.
17 Q. Have you discussed with Michael Elliott the issues of tapes
18 in this case?
19 MR. BAKER: Objection, calls for hearsay.
20 THE COURT: No, it is not asking for substance yet.
21 He can answer.
22 A. I am sorry, what was your question again?
23 Q. Have you discussed with Michael Elliott the issue relating
24 to production of audio surveillance production in this case?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3444
47CSSAT4 Kerns - cross
1 Q. And when did you have those conversations?
2 A. I don't recall exact dates but it was over the time that we
3 were working on this case to provide all the audio.
4 Q. And when is the last time you spoke to Mr. Elliott about
5 the issues in this case?
6 A. I spoke to him actually last night.
7 Q. And when you spoke to him last night, what subject did you
8 discuss?
9 MR. BAKER: Objection, relevance.
10 THE COURT: Overruled.
11 A. Well --
12 MR. BAKER: Your Honor, may I be heard on this?
13 THE COURT: Can you move on to another subject and we
14 will come back to that?
15 Q. Now, you told us that you had supervised the transfer from
16 the electromagnetic tape system to magneto optical disks,
17 correct?
18 A. Correct.
19 Q. Is it your testimony, sir, that with respect to every one
20 of these calls, including the one I began by asking you about,
21 the April 22, '96 call, that they all were transferred from
22 electromagnetic tape to magneto optical disk and then onto a
23 hard drive?
24 MR. BAKER: Objection, vague.
25 THE COURT: Do you understand the question?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3445
47CSSAT4 Kerns - cross
1 THE WITNESS: More or less, yes, your Honor.
2 THE COURT: Go ahead.
3 A. No, it's my understanding that, as I testified earlier, you
4 put the tape in, the program ran. It then processed all of
5 those calls. It had them on the hard drive which at that point
6 it wrote them to the MOs and the MOs were ejected out of the
7 jukebox and you had the tape and the VOC formatted calls on
8 magneto optical disk.
9 Q. So it was the function of the computer -- let me back up
10 here. I want to be clear.
11 There was a machine attached to a regular computer,
12 correct?
13 A. What do you mean machine?
14 Q. A machine that played these tapes, right?
15 A. There was, yes, a tape player in each one of the computers.
16 Q. Now, when we say tape player, we mean a device that reads
17 the digital information on here, correct?
18 A. Correct.
19 Q. You can't plug in headphones and listen to anything on that
20 machine, can you?
21 A. No.
22 Q. What that machine did was to copy them onto the hard drive,
23 right?
24 A. Correct.
25 Q. And as it copied them it made them into a VOC file,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3446
47CSSAT4 Kerns - cross
1 correct?
2 A. Yes, that was the conversion process.
3 Q. Now, who manufactured the conversion file?
4 MR. BAKER: Objection, lack of personal knowledge.
5 THE COURT: Do you know?
6 THE WITNESS: I don't know specifically, no, your
7 Honor.
8 THE COURT: All right.
9 Q. Did you supervise this process?
10 A. Which process, the making of the program?
11 Q. The process of putting them onto MOs.
12 A. Taking the data cartridges and putting them on MOs, yes, I
13 was there while that was all going on over a period of time.
14 Q. What did you understand you were doing?
15 A. We were taking tapes. We were taking all the audio,
16 copying all the audio off those tapes. They were being
17 converted by the program into VOC files and then being put on
18 MOs.
19 Q. Now, did you log the number of bytes of information on the
20 file before and after the conversion process?
21 A. No.
22 Q. Are the original tapes still in existence?
23 A. Yes, they are.
24 Q. Now, what kind of a program would it take for somebody to
25 look at the files that are on those tapes and see how many
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3447
47CSSAT4 Kerns - cross
1 bytes are on each one?
2 A. I have no idea.
3 Q. Does the FBI have a machine that does that?
4 A. I don't know.
5 Q. Now, earlier you told us that the information on the
6 electromagnetic tapes was compressed, correct?
7 A. That is my understanding, yes.
8 Q. So that you wound up with more bytes in the VOC format than
9 you would have for each file on the tape, correct?
10 A. That would be correct, yes.
11 Q. And is it your understanding that the original system
12 doesn't exist anymore?
13 A. Yes, it doesn't.
14 Q. So there is no way that you know of that we can go any
15 further back than these tapes, correct?
16 MR. BAKER: Objection, it mischaracterizes the
17 testimony.
18 THE COURT: Rephrase it.
19 Q. Let me put this back up.
20 You have given us, sir, the information in 1310A.
21 A. Correct.
22 Q. We went from 5 to 4 to 3 to 2 to 1 to A, correct?
23 A. Yes, correct.
24 Q. Do you know of any way that we can get back to a file form
25 or format any time earlier than what is on A?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3448
47CSSAT4 Kerns - cross
1 A. No. All that exists from that system are those tapes.
2 Q. So that for our file here, the one I started with,
3 1996042210, you don't know how many kilobytes it was on April
4 22, '96, do you?
5 A. No, I do not.
6 Q. You don't know what program it was recorded in in 1996, do
7 you?
8 A. Other than it was a proprietary format by Lockheed Martin,
9 no.
10 Q. You don't have the original file that was created on April
11 22, '96, do you?
12 A. We have the original copy which came off the tape.
13 Q. The copies are compressed copies, isn't it?
14 A. Yes, it is.
15 Q. It represents a compression of what was originally
16 recorded, correct?
17 A. I do not know how it went through the player and whether it
18 was compressed when it was listened to in the player. I do not
19 know the answer to that.
20 Q. Well, does any uncompressed file exists with respect to
21 this call?
22 A. Yes, the VOC format.
23 Q. Well, does any uncompressed file exist for this call that
24 is before it was put on this tape?
25 A. Not to my knowledge, no.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3449
47CSSAT4 Kerns - cross
1 Q. And you don't know how many bytes are in the compressed
2 file, do you?
3 MR. BAKER: Objection, asked and answered.
4 THE COURT: Yes, it was.
5 MR. TIGAR: I am sorry, your Honor?
6 THE COURT: Yes, sustained.
7 MR. TIGAR: Sustained.
8 Q. Now, you testified, sir, that you came on board this case
9 in May of 2002, correct?
10 MR. BAKER: Objection, it misstates the testimony.
11 THE COURT: Rephrase.
12 Q. Your responsibilities changed in May of 2002, correct?
13 A. That is correct.
14 Q. I don't want to put words in your mouth, but what were your
15 responsibilities starting then?
16 A. In May 2002?
17 Q. Yes, sir.
18 A. I became a technically -- I joined the technically trained
19 agent program. I was assigned to the technical branch of
20 Special Operations Division and I started working on technical
21 matters within our office.
22 Q. And among those technical matters you worked on this case,
23 correct?
24 A. Yes, I did.
25 Q. And in the course of your duties have you listened to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3450
47CSSAT4 Kerns - cross
1 conversations that were recorded in this case?
2 A. I have listened to probably -- I have listened to several
3 different conversations if asked with regard to problems with
4 the audio, with language specialists having issues, yes.
5 Q. Now, your job included problems with the audio?
6 A. If they couldn't hear it or there was something they
7 thought was wrong or there was another call or something along
8 those lines, sure, they would ask to see if it was a technical
9 problem.
10 Q. And you are talking about the language specialist asking
11 you about technical problems, correct?
12 A. Yes.
13 Q. Did anybody else ask you about the technical problems?
14 A. With regard to what, this case?
15 Q. The tapes in this case.
16 A. I was told that -- after a period of time I was told that
17 we did have a problem with some tapes because they they had
18 become degraded.
19 Q. I want to ask you now about in your computer studies, did
20 you learn about the use of these 8 millimeter tapes?
21 A. No.
22 Q. Have you ever used tape back-up devices that use these
23 kinds of tapes?
24 A. No, I have never used tape back-up for those types of
25 tapes, no.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3451
47CSSAT4 Kerns - cross
1 Q. And when you say degraded, what do you mean degraded?
2 A. We were having issues with the tapes themselves because of
3 their age. In some cases these were becoming -- I was
4 explained they were becoming demagnetized and you could not
5 pull any data off of them.
6 Q. Now, when we state demagnetized, if we can look in here,
7 and I am going to hold this up.
8 Have you ever looked in there?
9 A. Sure, if you push the button on the side, there is a button
10 on the side to lift up that front part so you can actually show
11 the tape.
12 MR. TIGAR: May I approach, your Honor?
13 THE COURT: Yes.
14 Q. I don't want to break it. I am going to ask you some
15 questions about it and I will ask you to hold it up to the
16 jury.
17 THE COURT: What is the exhibit number?
18 MR. TIGAR: The exhibit number, sir, can you read that
19 off of there?
20 THE WITNESS: I am sorry, it's 1304.
21 Q. Now, if you push the button you can see down inside there
22 there is magnetic tape, correct?
23 A. Yes, there is.
24 Q. And magnetic tape backing is some kind of plastic, correct?
25 A. Yes, it is.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3452
47CSSAT4 Kerns - cross
1 Q. Does it look like the same sort of stuff that was in your
2 like audio cassettes?
3 A. Yes, it's brown like it is in the audio cassettes.
4 Q. Or tape drives?
5 A. Sure, yes.
6 Q. Now, and bonded to that stuff, the plastic stuff, is some
7 brown stuff, correct?
8 A. Yes.
9 Q. That is iron oxide, isn't it?
10 A. I don't know.
11 Q. Well, it has the capacity to be magnetized, correct?
12 A. I assume so, yes.
13 Q. You said earlier demagnetized so it must have been
14 magnetized at some point.
15 A. At some point, yes.
16 Q. That would make sense. What happens with magnetization is
17 the machine being moved on moves those little iron oxide
18 molecules around into a pattern, correct?
19 MR. BAKER: Objection to form, lack of personal
20 knowledge.
21 THE COURT: Sustained.
22 Q. What happens to the iron -- to whatever that is, whatever
23 that chemical stuff is on there, when it passes over a
24 recording head?
25 A. I don't know exactly other than the fact that if it's a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3453
47CSSAT4 Kerns - cross
1 working tape and when it passes over the recording head it can
2 understand the information that is on it.
3 Q. And if it gets demagnetized, then it doesn't understand it
4 anymore, right?
5 A. In layman's terms --
6 MR. BAKER: Objection.
7 THE COURT: Overruled.
8 A. In layman's terms, yes, I guess that is what would happen.
9 Q. Now, did you have engineers helping you with this
10 conversion process?
11 A. I believe that some of the people that were involved are
12 considered to be engineers. I know the people that helped
13 write the programs are engineers.
14 Q. Now, did you have problems with the tapes breaking?
15 A. I am not sure if we had any tapes break during the process.
16 I actually believe we may have had one or two that that might
17 have possibly broken, but I am not 100 percent sure.
18 Q. As you sit there today, is your best memory that you did or
19 didn't have problems with tapes breaking?
20 A. I think we had. I believe we did have problems with a
21 couple of tapes that may have broken during the process.
22 Q. And did you report the breakage problems to anybody at
23 Quantico?
24 A. I don't remember.
25 Q. In the normal course of your activities would you or the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3454
47CSSAT4 Kerns - cross
1 people working for you report a tape breaking to someone at
2 Quantico?
3 A. They could possibly have, yes.
4 Q. Was that a part of their job?
5 A. Contact with people in Quantico is part of the people in my
6 technical branch. We work with them all the time, yes.
7 Q. Now, beginning in this time when you became a technical
8 specialist, did you have QA standards for your work?
9 MR. BAKER: Objection, vague.
10 THE COURT: Rephrase.
11 Q. Sir, at this time did you have quality assurance standards?
12 A. With regard -- I don't understand with regard --
13 Q. To the maintenance of digital evidence.
14 A. I don't know if we ever had anything written down regarding
15 quality assurance standards.
16 Q. Did you have protocols with respect to how you were to
17 safeguard and treat digital evidence?
18 A. With regard to -- we do have -- as I sit here today, we do
19 have standards regarding how we maintain our digital evidence,
20 yes.
21 Q. You say as you sit here today you have them. When did you
22 start having them?
23 A. We have had them as long as I have -- I have known we have
24 had standards as long as I have been on the squad.
25 Q. So when you came into this work in May 2002, there were
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3455
47CSSAT4 Kerns - cross
1 protocols, correct?
2 A. It's my understanding, yes.
3 Q. Did you read them?
4 A. I don't know if I have ever read anything regarding
5 standards, no.
6 Q. Did you get training in them?
7 A. Other than how to maintain the media?
8 Q. Did you get any training in these protocols?
9 A. I don't remember if I ever went to specific training for
10 protocols for digital evidence.
11 Q. Well, what is your understanding of what a protocol is?
12 A. Well, it's a set of rules that you keep for any
13 particular -- for any type -- it's a set of rules.
14 Q. And this evidence we are talking about is digital evidence,
15 right?
16 A. Yes, it is.
17 Q. So are you telling this jury that you never read any of the
18 rules about how to deal with the digital evidence?
19 A. I don't know -- I have never read formal rules regarding
20 digital evidence, no.
21 Q. Have you ever heard any telephone conversations with Ms.
22 Stewart's voice on there?
23 A. I don't believe so, no.
24 Q. Were you aware that she was the person whose voice was on
25 some of these calls?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3456
47CSSAT4 Kerns - cross
1 A. I was aware that she was a defendant in this case, yes. I
2 am sorry, I knew that there was a possibility that she may be
3 on some of those calls, yes.
4 Q. Now, you have that disk up there. On these electromagnetic
5 tapes, is it your understanding that the calls are stored in a
6 different kind of an order than they are stored on the MO
7 disks?
8 MR. BAKER: Objection, lack of personal knowledge.
9 THE COURT: Do you know?
10 THE WITNESS: No, I do not.
11 THE COURT: All right.
12 Q. Well, are you aware that there is nonaudio information on
13 the VOC files?
14 A. Yes.
15 Q. And so let's start with that here. What is the nonaudio
16 information? Excuse me, start again.
17 Audio information means people talking, right?
18 A. Correct.
19 Q. Or singing or dancing but sounds, correct?
20 A. Sounds, correct.
21 Q. Now, what is nonaudio information?
22 A. Text.
23 Q. Now, in the VOC format, which is the DVD you are telling us
24 about, how did that text information get in there?
25 A. Into the VOC header?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3457
47CSSAT4 Kerns - cross
1 Q. Yes.
2 A. Are we talking just for clarification, are you talking
3 about all calls or are we talking about --
4 Q. I tell you what, let's talk about this call that I started
5 with, because that is the one I want to keep using as an
6 example.
7 Thank you.
8 That is this one 19960422, the one we have been
9 talking about all along here. There is a VOC file, and that is
10 the one I am pointing to here, correct?
11 A. Yes.
12 Q. That has nonaudio information, correct?
13 A. Yes, it does.
14 Q. And you were shown an exhibit that summarizes some of that,
15 correct?
16 A. Correct.
17 Q. Now, how did it get in there?
18 A. I don't know during the conversion process how that
19 information is placed into the VOC header. I don't know.
20 Q. I am going to put up here what has been in evidence --
21 MR. TIGAR: May I put it on the screen, 1001N.
22 THE COURT: Yes.
23 Q. Now, you see the information at the top, correct?
24 A. Yes.
25 Q. Now, the header is all the way down to the line that begins
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3458
47CSSAT4 Kerns - cross
1 just below segstart, correct?
2 A. Correct.
3 Q. After that all these other symbols that are here, and I
4 will move that up, that is all binary information, correct?
5 A. Actually it's the audio.
6 Q. That is right. But the audio is stored in a binary format,
7 correct?
8 A. It stored in a digital format, which can be considered
9 binary, correct.
10 Q. Okay. This is incomprehensible to us because it represents
11 things that are on there that are audio, correct?
12 A. Correct.
13 Q. All right.
14 Now, for example, here it tells us, this is a session
15 start. Here on this call it's 1996042210, do you see that down
16 there?
17 A. Yes, I do.
18 Q. Is that designed to show us when that call was?
19 A. Yes, that is the date and time that this session started.
20 Q. In fact, that call, 19960422, is the same as on Government
21 1000L as the very first call, isn't it?
22 A. Yes, it is.
23 Q. Keeping with the same call now, is it your testimony, sir,
24 that you don't know how this header information got there?
25 A. I don't know how the conversion process put it into the VOC
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3459
47CSSAT4 Kerns - cross
1 header, no, I don't know.
2 Q. Let me start back.
3 Back in April '96 when this call was recorded, do you
4 know how the Lockheed Martin system put a date and time in
5 there, or if it did?
6 A. I don't know.
7 Q. Do you know whether the system did it automatically or they
8 had to have it done by a human?
9 A. I don't know for sure.
10 Q. Do you know whether anything got added to that nonaudio
11 information along through the process of file conversion?
12 MR. BAKER: Objection, lack of personal knowledge.
13 THE COURT: Overruled.
14 A. I don't know.
15 Q. If I were to ask you the very same question, do you know
16 how the nonaudio information got there with respect to every
17 single one of these calls that is on 1000L, would your answer
18 be I don't know?
19 A. No.
20 Q. Okay.
21 Are you able to tell me how it got there with respect
22 to some group of them?
23 A. Yes.
24 Q. Which ones?
25 A. The ones from the Raytheon system.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3460
47CSSAT4 Kerns - cross
1 Q. Now, when did the Raytheon system start?
2 A. It's my understanding it came about in the summertime, July
3 of 2000.
4 Q. So if I see a call on here that is after, say, July 2000?
5 A. That is when the system came in. I don't know when this
6 case was added to the system.
7 Q. Oh, but sometime after that?
8 A. Sometime after that.
9 Q. So if I were to look at 1000L and I wanted to know which
10 ones you know how the nonaudio information got there and which
11 ones you don't, I would simply page down and look at these
12 years, correct?
13 A. That would work in most cases, yes.
14 Q. And I am going to show you now page 5. Here is page 5 of
15 1000L and the bottom here is 20000805, correct?
16 A. Correct.
17 Q. Now, that is a call, 2000 August 5, correct, that is what
18 your information is?
19 A. That is correct.
20 Q. So if the Raytheon system was in use at that time, then you
21 could tell us how the nonaudio information got there, right?
22 A. My understanding of how, yes.
23 Q. So you don't have personal knowledge. You are not a
24 computer programmer, are you?
25 A. No, I am not a computer programmer.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3461
47CSSAT4 Kerns - cross
1 Q. So you would be able to tell us what people told you about
2 how the nonaudio information got there, right?
3 A. That is correct.
4 Q. So if I were to ask you as your personal knowledge, sir,
5 can you tell us how any of the nonaudio information got onto
6 any of the files listed on 1000L, your answer would be no,
7 correct?
8 A. That is correct.
9 Q. Now, you told us that you did not have a hole or a plug on
10 the electromagnetic tape reader where you plug in earphones,
11 right?
12 A. There is no way -- I don't know if there was a plug for a
13 headphone. I know that you can't listen to it on the reader or
14 on the conversion process.
15 Q. Do you know of a machine, any machine, of which you could
16 play that electromagnetic tape and actually hear audio content?
17 A. No.
18 Q. The answer is you don't know?
19 A. No, the answer is I do not know of any player for the
20 original format that is on these tapes.
21 Q. Is it your understanding that in order to hear them you
22 have to run a conversion process?
23 A. That is correct.
24 Q. Now, you told us earlier, Mr. Kerns, that you had these
25 servers. I am putting up 1310A, sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3462
47CSSAT4 Kerns - cross
1 And you have 5 servers, right?
2 A. Yes.
3 Q. For this case.
4 A. We had more but for what we were doing with regard to the
5 VOC files I used 5 servers.
6 Q. Five servers.
7 Now, would you help us out, sir. What is a server in
8 terms of what you are doing here?
9 A. In this case it acts more like, as I testified, a very
10 large hard drive. But a server is just something that shares
11 resources but essentially we used it as a very large hard drive
12 to copy all the information to.
13 Q. So did it look like a home computer with a screen and a
14 keyboard and a central processing unit?
15 A. Yes.
16 Q. So if I were to have been admitted to your office I would
17 see five things that looked a lot like a regular computer like
18 a person might have in their house?
19 MR. BAKER: Objection, relevance.
20 THE COURT: Overruled.
21 A. Yes.
22 Q. Now, suppose you were working with your servers or people
23 were working under your direction, let me ask first: Did
24 prosecutorial personnel, Assistant U.S. Attorneys, come to your
25 office to look at your files or did you give them things?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3463
47CSSAT4 Kerns - cross
1 A. They requested them and I brought the information over to
2 them.
3 Q. You would bring it to them over in St. Andrew's Plaza?
4 A. Correct.
5 Q. From the New York field office?
6 A. Yes.
7 Q. So it was not the practice that they would actually come
8 and use your servers?
9 A. No, they never touched any of that equipment.
10 Q. Now, if you wanted to use -- let's suppose, and I will put
11 this on top, you were going to look at or deal with this file
12 0422, correct?
13 A. Correct.
14 Q. And in order to deal with it you would have had to have it
15 on a MO disk, correct?
16 A. Correct.
17 Q. Now, did you load all of the files that were to be used in
18 this case, all the files you thought related to this case, onto
19 these servers?
20 MR. BAKER: Objection, relevance.
21 THE COURT: Rephrase it.
22 Q. Of the files you have been discussing -- well, let me go
23 back two levels.
24 You had files on MO disks, correct?
25 A. Correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3464
47CSSAT4 Kerns - cross
1 Q. Was that the medium on which they were to be stored or
2 archived?
3 A. Yes.
4 Q. Now, what did you use the servers for?
5 A. They were purchased and we used them to collect all the
6 data so we could burn DVDs for the U.S. Attorney's Office and
7 the defense.
8 Q. And to burn DVDs -- you say burn, you mean make a copy,
9 right?
10 A. Correct.
11 Q. You mean burn is just a colloquialism, right? It doesn't
12 mean -- it just means copy.
13 A. Correct.
14 Q. All right.
15 Now, are the magneto optical disks that we have seen
16 here, Government Exhibit 1305, right?
17 A. Yes.
18 MR. TIGAR: May I approach, your Honor?
19 THE COURT: Yes.
20 Q. I tell you what, let me have it back. I will put it on the
21 ELMO and we can all see it. Excuse me.
22 This is 1305 and let's see if I can make it work.
23 No, I can't make this come up.
24 MR. TIGAR: May I approach again, your Honor?
25 THE COURT: Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3465
47CSSAT4 Kerns - cross
1 Q. I can't do it on the camera, sir. If you would help me out
2 there please and read what it says on there on the front.
3 A. On the middle silver part here?
4 Q. Yes, sir.
5 A. It says MO-disk, and right underneath of it rewritable,
6 then 2.6GB, which stands for gigabytes, and lower down
7 "Philips."
8 Q. Okay.
9 Now, MO disk is magneto optical disk?
10 A. Correct.
11 Q. 2.6 gigabytes, help me out, that is 2.6 what?
12 A. It's 2.6 -- I think it would work out as 100 million
13 kilobytes if I am correct. So 200,600,000 gigabytes or, I am
14 sorry, of kilobytes if I am correct.
15 Q. Well, on one of those we could get all of the telephone
16 calls that are listed on 1000L, correct?
17 A. I would have to look at how big it was. If it's less than
18 2.6 gigabytes then, yes, it would fit on this MO.
19 Q. And it says rewritable, right?
20 A. That is correct.
21 Q. What does that mean?
22 A. That means you could write something to it and then take it
23 out and then write something to it again.
24 Q. So if you had the MO disk player attached to your computer,
25 right, you could upload a file to your hard drive, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3466
47CSSAT4 Kerns - cross
1 A. From a MO disk?
2 Q. Yes.
3 A. Yes.
4 Q. And you could look at that file on your computer, correct?
5 A. That is correct.
6 Q. You would have a program that would permit you to do that,
7 correct?
8 A. That is correct.
9 Q. And then you could save it back to that MO disk, correct?
10 A. I wouldn't need to unless I did something to it.
11 Q. Exactly.
12 MR. BAKER: Objection.
13 THE COURT: Sustained, stricken.
14 Q. If you had uploaded the file to your hard drive, sir, and
15 you did something to it and you saved it back to the MO disk,
16 the MO disk could take that change if your computer was
17 correctly programmed, correct?
18 A. Yes, because it's rewritable.
19 Q. And when it made that change to the file, the next time you
20 loaded the MO disk in there, it would show a different modified
21 date than it had had before, correct?
22 A. I don't know because the modified dates you are talking
23 about is a Windows system.
24 Q. Well, this is Government Exhibit 1000L, sir. What does the
25 name modified mean?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3467
47CSSAT4 Kerns - cross
1 A. As you stated before and I stated, that it means change.
2 Q. Well, this is not the Windows system, is it?
3 A. This was printed from a Windows system computer, yes.
4 Q. And the computers that you had in your servers didn't run
5 Windows?
6 A. No, they did not.
7 Q. Did those computers keep track of when files were modified?
8 A. I am not familiar enough with that operating system or
9 whether it shows a change in date or a last modified.
10 Q. So as you sit there today, sir, do you know of your
11 personal knowledge whether if someone took an MO disk and put
12 it into a player and loaded that file up onto one of these
13 servers that is on is 310A and modified it or did something to
14 it and then saved it back to the MO disk, if all those things
15 happened, do you know of your personal knowledge whether the
16 system was capable of detecting that alteration?
17 A. I don't know. I don't know if there would be a change in
18 any of the date information on the MO, I don't know.
19 MR. TIGAR: Your Honor, this is a good place for me to
20 break. I know it's a few minutes early but there are these
21 pending matters.
22 THE COURT: All right.
23 Ladies and gentlemen, we will break for lunch until 2
24 o'clock.
25 Please remember my continuing instructions. Please
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3468
47CSSAT4 Kerns - cross
1 don't talk about the case at all and remember to keep an open
2 mind until you have heard all of the evidence, I have
3 instructed you on the law, and you have gone into the jury room
4 to begin your deliberations.
5 Have a good lunch.
6 All rise please.
7 (Jury left the courtroom)
8 THE COURT: The witness my step down.
9 Agent Kerns, don't talk to anyone about your
10 testimony. You are in the middle of cross examination.
11 THE WITNESS: Your Honor, what time do I need to be
12 back?
13 THE COURT: A quarter of 2 and you can talk to whoever
14 you are dealing with from the government not with the substance
15 of your testimony but about the details of when you have to
16 return and where you should go.
17 THE WITNESS: Thank you, your Honor.
18 THE COURT: All right.
19 There were two issues that I said to come back to.
20 The first or one issue was the witness testifying he had
21 conversations with Mr. Elliott last night and there was an
22 objection.
23 MR. BAKER: Your Honor, in the presence of the jury to
24 ask those kinds of questions necessarily suggests that the
25 witness was doing something inappropriate and speaking with
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3469
47CSSAT4 Kerns - cross
1 another witness about the subject matter of their testimony. I
2 don't have any reason to believe that is true. But in light of
3 the various pending document requests and requests for copies
4 of files and the need to gather 3500 material and disclose it,
5 it's my understanding that the conversation related to subjects
6 of that nature, and I objected to the line of questioning
7 because I believed that it casts what happened in an improper
8 light when in fact the court knows and counsel knows, because
9 counsel made the requests, that there are reasons why it is
10 necessary for these personnel to be speaking with each other on
11 an ongoing basis.
12 MR. TIGAR: Your Honor, I asked him the question in
13 absolute good faith.
14 THE COURT: I don't question that.
15 MR. TIGAR: Because Mr. Elliott derived information
16 from many, many sources and he was an expert, so he was
17 permitted to do that. Saying this person told me or the
18 engineer reported or whatever. So the fact that they talked to
19 each other is following up on what Agent Elliott said and the
20 knowledge or lack of knowledge that the jury sees about this
21 agent is relevant to that.
22 Now, the other part is that I don't -- I was not
23 attempting to suggest anything improper and if the witness gave
24 an explanation that nothing improper happened, well, then, I
25 think it's a collateral matter and I might even be bound by the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3470
47CSSAT4 Kerns - cross
1 answer. But I don't recall whether he is the case agent. I
2 just don't recall.
3 MR. BAKER: He is not, your Honor. He is a technical
4 agent who provided support to this matter on technical matters
5 but works on technical matters on all sorts of other cases and
6 investigations as well.
7 MR. TIGAR: Well, if he is not a case agent he
8 shouldn't be talking about his proposed testimony with other
9 witnesses. I think it's as simple as that and if his
10 explanation is he didn't do that well, fine, he didn't. But if
11 he did, I am entitled to the inference.
12 THE COURT: All right.
13 Ms. Baker.
14 MR. BAKER: Your Honor, I believe there was discussion
15 last night relating to the substance of a document which was
16 the subject of the letter that we provided to counsel this
17 morning and it is conceivable to me, and I wasn't a party to
18 whatever that discussion was, but it is conceivable to me that
19 words like testimony and whether he might be asked about it or
20 not came up in the context of the discussion of the existence
21 of that document which we were subsequently advised of. As I
22 said, I don't have any reason to think that they discussed the
23 substance of his direct and that disclosure that we made this
24 morning had nothing to do with his direct examination.
25 THE COURT: Well, it's sufficient that counsel can
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3471
47CSSAT4 Kerns - cross
1 follow up as to what the subject matter of the testimony was to
2 see whether he discussed his testimony or not and if he
3 discussed his testimony the jury can consider that with respect
4 to the issues. If counsel wants to follow up, if the witness
5 says that they discussed document production in the case and
6 not the substance of his testimony, that is it. If the
7 government wants to follow up on redirect as to whether they
8 discussed the substance of his testimony, that is fair for
9 redirect.
10 The other issue was 3525, and the government said they
11 could provide more information with respect to 3525 but as of
12 now it doesn't appear that there is a foundation for it. He
13 doesn't know who created it or why.
14 What does the government want to say with respect to
15 3525?
16 MR. BAKER: I was going to say that I know for a fact
17 that the witness did not create it. It was created by my
18 office. Moreover, this document is not a complete document.
19 It is a first page which has no page number at the bottom and
20 then a page which bears the page number at the bottom and I
21 think Mr. Tigar's questioning suggested or implied that this
22 might perhaps be a list of all of the files on the DVD marked
23 as Government Exhibit 1000.
24 I would represent to the court that it's not and it
25 plainly could not be so given the number of files that are on
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3472
47CSSAT4 Kerns - cross
1 Government Exhibit 1000 and the fact that this is only two
2 incomplete pages of a document.
3 MR. TIGAR: Your Honor, this was produced to us under
4 the Jencks Act with respect to this witness. He was produced
5 by the United States of America. It is inconsistent with --
6 there is only one thing I want off there, the first line. If
7 your Honor will look, the first line, and it's not much of a
8 point, but it's mine and so I like it, says in the last -- it
9 says 9:10 p.m. or, excuse me, 7:10 p.m.
10 Does your Honor see that on the first line?
11 THE COURT: Yes.
12 MR. TIGAR: 1000L says 20:10. So at some point the
13 FBI found out that the internal clock on their machine was off
14 by an hour. I assume that is human error because they didn't
15 do Daylight Saving Time forward. That is the point. It's not
16 much but it is a point w,hich is that human error creeps in
17 with respect to these entries. Therefore, I am not attempting
18 to make the improper suggestion imputed to me. I would like
19 simply to ask the witness if at some time they had a different
20 file date, or file creation time.
21 THE COURT: Ms. Baker.
22 MR. BAKER: Your Honor, the document was provided as
23 3500 material in an abundance of caution because Agent Kerns
24 had it in his file. However, he testified on cross examination
25 that he doesn't remember who created it or how he came to have
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3473
47CSSAT4 Kerns - cross
1 it or why he had it and in light of his lack of recollection,
2 there is not a basis for it to be received in evidence.
3 THE COURT: All right. There is no foundation for the
4 document in terms of a prior statement of the witness. I will
5 allow questions as to whether there was ever another date or
6 time for that call and whether there is anything about this
7 document that refreshes the witness' recollection with respect
8 to that.
9 MR. TIGAR: Thank you, your Honor.
10 What your Honor has in front of you is my only copy.
11 I understand it's excluded. I will not re-offer it and I will
12 use it simply for -- I will ask the witness to permit a
13 question and use it to refresh it if his recollection is
14 exhausted. If it doesn't refresh, I will go onto something
15 else.
16 THE COURT: All right.
17 See you at 10 of 2:00.
18 (Luncheon recess)
19 (Continued on next page)
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3474
47CSSAT4 Kerns - cross
1 A F T E R N O O N S E S S I O N
2 (In open court; jury not present)
3 2:10 p.m.
4 MS. BAKER: Regarding the telephone call, I don't know
5 what the testimony was, whether it was by telephone or not --
6 regarding the testimony of this witness, Scott Kerns, and the
7 previous witness, Michael Elliott. I learned over the lunch
8 hour, not through speaking with Agent Kerns, of course, that
9 that was a three-way call, and the third person on that call
10 was an attorney with the FBI's general counsel's office and
11 that the content of the conversation was privileged
12 communication involving counsel. The call was set up by the
13 FBI attorney, and it was for the specific purpose of getting
14 the information necessary to come to a determination as to
15 whether a disclosure needed to be made which resulted in my
16 letter dated this morning. I was advised by the FBI attorney
17 that there was no discussion of the substance of the testimony
18 that had been given by Mr. Elliott or of any anticipated
19 testimony by Agent Kerns, and so because that conversation was
20 privileged, we ask that Mr. Tigar not be permitted to inquire
21 into it.
22 MR. TIGAR: Your Honor, this relates then to the
23 letter that was delivered to us this morning, a copy of which
24 was furnished to your Honor. That letter -- I'm searching for
25 my copy, your Honor -- I'm sorry, your Honor, can I borrow a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3475
47CLSAT5
1 copy from another one of the lawyers? Thank you. The
2 government's handing me one.
3 Now, your Honor will note that this has to do with a
4 problem in converting a Lockheed Martin tape, and then there's
5 an MO that was in the process, that is, a magneto operative
6 disk, in a problem with the .voc header, as best I can figure
7 it out. So it's a problem with the reliability of the
8 automated system. I take it that it relates to the assertions
9 made by Mr. Kerns in his September 8's declaration at Page 7,
10 bottom of Paragraph 10, the inability to receive audio files.
11 And at Page 9, Paragraph 17, although I'm not sure.
12 But at any rate, it is the practice of FBI general
13 counsel in discussing with persons to note what that person
14 said about what they're deciding to do. And so I am wondering
15 whether Jenks material was created during the course of that
16 three-way telephone conversation. That is my only question,
17 and I would ask the government to make inquiry, based, as I
18 say, on my experience that when you call the general counsel,
19 you get advice and that's how you get it.
20 MS. BAKER: Your Honor, I'm sorry, I actually don't
21 understand the assumption on which Mr. Tigar's request is
22 based.
23 THE COURT: There was a telephone conversation last
24 night. The assumption is that the witness said something and
25 that notes were taken of what the witness said, and that that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3476
47CLSAT5
1 would be Jenks material. And so the inquiry was, are there
2 notes, are they Jenks material, and should they be produced.
3 MS. BAKER: Your Honor, they were not discussing any
4 substance of the direct testimony given by Agent Kerns, so
5 therefore, whatever might have been said or might have been
6 written down, wouldn't fall within 18 USC section 3500, which
7 applies to statements of a witness relating to the subject
8 matter of direct testimony.
9 THE COURT: I understand that. Well, I understand
10 what both counsel have said. The request was to check whether
11 there are notes, and if so, whether they relate to the subject
12 matter of the testimony, and you can check and make the
13 representation, and if that's sufficient, that's sufficient.
14 And if there is an issue raised that someone wants me to review
15 something, so be it. But at this point, the only question was,
16 is there Jenks material as a result of that call.
17 MS. BAKER: Your Honor, I confess that I did not ask
18 the very specific question of what, if any, notes the lawyer
19 took. However, I did ask very specifically: What did you talk
20 about; and did you talk about the substance of anything that
21 Agent Kerns was going to testify about? And I was told, very
22 clearly, that what we talked about was the existence of the
23 document that is quoted in my letter. And that they did not
24 talk about the substance of Agent Kerns' testimony, which
25 allows me to say, I think decisively, that if any notes do
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3477
47CLSAT5
1 exist, they do not relate to the subject matter of the
2 testimony; moreover, given that I've been advised that the
3 entire conversation was privileged, the notes would be
4 protected by the same privilege.
5 THE COURT: Well, who holds that privilege, so that
6 you can -- you can assure yourself with respect to that and me
7 that it's not an issue and it's not going to come up, you know,
8 in the future? That's the request. And it's -- I would not
9 think that the privilege would be breached if, for example, you
10 looked at the notes, right?
11 MS. BAKER: I believe that that's correct.
12 THE COURT: So...
13 MR. TIGAR: I agree, your Honor. That's all one can
14 do right now. And then if we do have a further application
15 with respect to the statutory requirements about how you make
16 developments, determinations, we'll make it.
17 MS. BAKER: Your Honor, if the Court is willing to
18 take another five minutes before the jury comes in, I believe
19 that I could reach FBI counsel, essentially right now, and ask
20 whether there were, in fact, any notes. If the answer is no,
21 then that would obviously end the inquiry.
22 THE COURT: All right. Take five minutes.
23 By the way, as you know, I avoid walking through the
24 first floor corridor; I use the basement. But I walked by the
25 jury room, but there was nothing happening at lunchtime.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3478
47CLSAT5
1 (Recess)
2 MS. BAKER: Your Honor, FBI counsel has advised me
3 that it took no notes during his conversation with Agent Kerns
4 last night.
5 THE COURT: Okay. Are you ready to have the jury
6 brought back in?
7 Before we do that, is there -- based on the
8 representation, is there going to be any further inquiry about
9 the conversation? Please keep the witness out for just a
10 moment.
11 MR. TIGAR: No, your Honor. I just don't -- no. Of
12 this witness.
13 THE COURT: Okay. Bring the witness in.
14 Bring in the jury.
15 (Jury enters the courtroom)
16 (In open court)
17 THE COURT: All right. Please be seated, all.
18 Good afternoon, ladies and gentlemen.
19 JURORS: Good afternoon.
20 THE COURT: Agent Kerns has resumed the stand.
21 Mr. Fletcher?
22 DEPUTY CLERK: Agent Kerns, I'll remind you you're
23 still under oath.
24 THE WITNESS: Yes.
25 THE COURT: Mr. Tigar?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3479
47CLSAT5
1 MR. TIGAR: Thank you, your Honor.
2 BY MR. TIGAR:
3 Q. Mr. Kerns, I forgot to ask you, Sir, when the degradation
4 and breakage issues arose, were there written reports made, to
5 your knowledge, of those?
6 A. No, I don't believe any -- I don't believe any were made
7 regarding that.
8 Q. Now, we were looking today -- I wonder if we could have
9 this on, the overhead. Am I doing this correctly? Thank you.
10 We were looking, by way of example, at there first
11 call, the 1996 call. Now, did you make this document?
12 A. No, I did not.
13 Q. Do you know what kind of a computer system it was made on,
14 if any?
15 A. I'm not sure, no.
16 THE COURT: Could you identify the document?
17 Q. I'm sorry, Government Exhibit 1000 l. Excuse me, your
18 Honor. 1000L.
19 You did not make it and you don't know what kind of
20 computer system made it, right?
21 A. I believe it was made on a Windows system, but I'm not
22 sure.
23 Q. And your system over there in the Bureau is not a Windows
24 system, correct?
25 A. Well, we have both.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3480
47CLSAT5 Kerns - cross
1 Q. The system on which the files were copied, is that a
2 Windows system?
3 A. At what point are you talking about, Counsel?
4 Q. When you made the DVD, the DVD in this case that you've
5 shown us this morning, that number 1000, was that made on a
6 Windows system?
7 A. Yes, it was.
8 Q. And I notice it's got your signature on it.
9 A. Yes, it does.
10 Q. Why does it have your signature on it?
11 A. Because I reviewed this against the government exhibit, the
12 DVD, I believe it's Government Exhibit 1000. I reviewed that
13 as of yesterday, and initialed and signed it -- or signed it
14 and dated it.
15 Q. Okay. Now, putting back up here 1310A, which, as you'll
16 recall, goes from A to 1 to the servers, to 2, to 3, to 4, to
17 five. Right?
18 MS. BAKER: Your Honor, I object to the extent that's
19 offered as a characterization of what happened with each call.
20 THE COURT: All right, rephrase.
21 Q. At what point on this process depicted in 1310A did the FBI
22 convert, did your system that you were using to run these
23 things, convert to Windows?
24 A. At Number 2 is the first Windows computer that we used.
25 Q. And before that -- so when the electromagnetic tape was
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3481
47CLSAT5 Kerns - cross
1 copied to MO's, that was not Windows, right?
2 A. Yes, I believe it was UNIX, that's correct.
3 Q. And when the MO's were copied to the computer hard drive,
4 was that UNIX?
5 A. Yes. The computer that is hooked up to the MO drive was
6 UNIX.
7 Q. Now, do you know, based on your experience, if there are
8 any differences between the actual program used to create .voc
9 files to the UNIX system and .voc files in a Windows system?
10 MS. BAKER: Objection, relevance to the "create".
11 THE COURT: Overruled.
12 A. I'm sorry, could you ask that to me one more time?
13 Q. Do you know if there's a difference between the program
14 that is used to cree aid .voc files in a Windows system and the
15 program that is used to create .voc files in a UNIX system?
16 A. I don't know if there's any difference, no.
17 Q. Now, the DVD that you've identified as Government
18 Exhibit 1000, do you remember when you did that?
19 A. Are you asking when it was first created or --
20 Q. Yes, sir, when you first created it?
21 A. I don't remember. It was several months ago.
22 Q. Do you remember creating a DVD that had 100 and 32 calls on
23 it on a single DVD and informing the prosecutors that you had
24 done so?
25 A. I've made so many DVDs for this case, unless you show it to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3482
47CLSAT5 Kerns - cross
1 me, I don't remember a specific number.
2 Q. Let me show you something which has been produced --
3 THE COURT: You may approach.
4 Q. I'm sorry, may I approach?
5 And I'll just ask you to look at that and ask you if
6 that refreshes your recollection.
7 MS. BAKER: Would you identify the document,
8 Mr. Tigar?
9 BY MR. TIGAR:
10 Q. I don't want to say something in front of the jury, it's --
11 (indicating).
12 Go ahead, Sir. Could you look at that and tell me
13 whether or not that refreshes your recollection about the
14 matter about which I was asking?
15 A. It has my name. It says --
16 Q. No, just does it refresh your recollection?
17 A. Not to say that I created one with 132 calls, no, it
18 doesn't.
19 Q. Would it help if I showed you Government Exhibit 1000L?
20 You see that date, 4-13. Right? Now putting that together
21 with what's on the paper, does that refresh your recollection?
22 A. No, it doesn't.
23 MR. TIGAR: May I approach, your Honor?
24 THE COURT: Yes.
25 Q. We have been looking, Sir, at this first call, 1996
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3483
47CLSAT5 Kerns - cross
1 April 22nd. The surveillance that yield -- court ordered
2 surveillance that yield audio calls began earlier than that,
3 didn't it?
4 A. I'd have to review the actual court orders regarding that.
5 But yes, they did start prior to that.
6 Q. And in fact, Sir, there were, based on your working with
7 these files, there were files that had been created during the
8 period September 29th through October 2, 1995, and October 20th
9 through October 22, correct?
10 A. I'd have to review the files that we've turned over.
11 Q. Have you exhausted your recollection on that?
12 A. Unless I review something, I can't tell you, no.
13 MR. TIGAR: May I approach, your Honor.
14 THE COURT: Okay, yes. This is a good time, ladies
15 and gentlemen, to explain something to you. I may have
16 explained this to you already, but what does it mean, to
17 refresh a witness's recollection? As I will tell you in my
18 final instructions, the documents that are used to refresh a
19 witness's recollection are not received in evidence unless
20 they're independently admissible. A witness can be shown
21 anything and asked whether that refreshes the witness's
22 recollection. And then the witness testifies as to whether he
23 recalls something or not. But the document used to refresh the
24 witness's recollection is not itself evidence. And the witness
25 should look at the document and ask, does the document refresh
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3484
47CLSAT5 Kerns - cross
1 the witness's recollection, and then the witness testifies to
2 his own or her own recollection of what the witness recalls.
3 And in fact, it refreshes my recollection that I gave
4 you that instruction during Mr. Crisalli's testimony. So --
5 you may proceed.
6 MR. TIGAR: May I approach, your Honor?
7 THE COURT: Yes.
8 MR. TIGAR: Thank you.
9 BY MR. TIGAR:
10 Q. I'm going to show you this, Sir, and ask you to look at
11 Paragraph 13, and I'm going to ask you if that refreshes your
12 recollection.
13 A. Yes, it does.
14 Q. And what's your recollection?
15 MS. BAKER: I'm sorry, Mr. Tigar, for the record, is
16 this 3525? B as in Bravo?
17 MR. TIGAR: 3525 Bravo, yes. Page 9.
18 Q. With your recollection thus refreshed, there was
19 surveillance between September 29th and October 2nd; and
20 October 20th through October 22, correct?
21 A. Correct.
22 Q. And have you participated in any phase of the investigation
23 that gives you a sense of the importance of the date
24 September 29th through October 2nd?
25 A. No.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3485
47CLSAT5 Kerns - cross
1 Q. May I approach, your Honor?
2 THE COURT: Yes.
3 Q. Let me retrieve that from you, Sir. Thank you.
4 As you were supervising this project of copying the
5 tapes, was it your understanding, Sir, that the FBI did not
6 review the electromagnetic tapes while the surveillances were
7 ongoing?
8 A. I don't know.
9 Q. You say you don't know or you -- do you have any
10 recollection of that?
11 A. No, I don't know if they were ever reviewed during that
12 timeframe.
13 Q. Did you ever state that they were reviewed or not reviewed?
14 A. I don't remember.
15 MR. TIGAR: May I approach, your Honor?
16 THE COURT: Yes.
17 Q. Page 9, paragraph 17. Will you please look at Page 9,
18 Paragraph 17, and tell us whether that refreshes your
19 recollection?
20 A. Yes.
21 Q. With your recollection thus refreshed, can you answer my
22 question?
23 A. Yes. That the FBI did not have an opportunity to review
24 these tapes prior to them being converted to realize there was
25 an issue.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3486
47CLSAT5 Kerns - cross
1 Q. My question was, did they review them during the ongoing
2 surveillance, and the answer is no, is that right?
3 A. That's correct.
4 Q. Now, sir, I want to turn to this -- may I approach your
5 Honor, retrieve the document?
6 THE COURT: Yes.
7 MR. TIGAR: Thank you.
8 Q. To put this in perspective, Sir, I have put back up 1310A.
9 Do you see down here, a -- electromagnetic tape, right?
10 A. Correct.
11 Q. Those were the tapes that were being created during the
12 surveillance, correct?
13 A. During part of it, correct.
14 Q. During the time the Lockheed Martin system was operating,
15 right?
16 A. That's correct.
17 Q. And what was put on those tapes was derived from the
18 computer system that's not shown on this exhibit, correct?
19 A. That's correct.
20 Q. Now, sir, I want to turn to the Raytheon system. The
21 Raytheon system, which came into existence in 2000?
22 A. Summer of 2000.
23 Q. Now, that recorded the calls to hard drives, right?
24 A. That's correct.
25 Q. What was the operating system?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3487
47CLSAT5 Kerns - cross
1 A. It was a UNIX operating system.
2 Q. Recorded them in the UNIX .voc format, correct?
3 A. They're in .voc format, correct.
4 Q. Now, the hard drive -- the computer. The computer on which
5 they were recorded then would automatically save to a magneto
6 optical disk, correct?
7 A. Yes.
8 Q. And after it had saved it, the hard drive would be over
9 written, correct?
10 A. At some period in time, that is correct.
11 Q. So the storage medium was the magneto optical disk,
12 correct?
13 A. Correct.
14 Q. The saving process was automated, correct?
15 A. That's correct.
16 Q. This system also had malfunctions, correct?
17 A. Are you talking about the time during the surveillance?
18 Q. No, I'm asking -- well, let me ask the question precisely.
19 When you went to look for the telephone calls on a magneto
20 optical disk that you expected to find there, were some
21 missing?
22 A. Yes, there were.
23 MS. BAKER: Your Honor, I object to this line of
24 questioning on the basis it's irrelevant.
25 THE COURT: Go ahead.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3488
47CLSAT5 Kerns - cross
1 Q. Are you able to say why those files were missing?
2 MS. BAKER: Objection, relevance.
3 THE COURT: Overruled.
4 A. The specific files that I commented on, as why -- I can
5 commented to the fact that in one case, there are two sides or
6 two volumes which could possibly be believer on the same MO,
7 that are missing.
8 Q. And you don't know, do you, whether your inability to
9 retrieve files is the result of an accident or a technical
10 problem that was not discovered, correct?
11 MS. BAKER: Objection, relevance.
12 THE COURT: Overruled.
13 A. I know the calls were recorded, and that means they were
14 archived. So that would mean that there was some -- that it
15 got to MO and the session management told me that in the system
16 when I was looking for them. So they did get to MO.
17 Q. My question was, sir: Your inability to retrieve those
18 audio files was the result of an accident or a technical
19 problem, corrected?
20 A. I don't think I can answer that in that -- that question in
21 that way. I would not characterize it as an accident or a
22 technical problem.
23 Q. On September the 8th, 2003, under oath, did you classify it
24 as an accident or a technical problem?
25 A. It can be, but since --
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3489
47CLSAT5 Kerns - cross
1 Q. My question was: On September the 8th, 2003, did you make
2 a statement under oath on this subject?
3 A. I'd have to review it.
4 Q. Have you exhausted your recollection as to it?
5 A. Yes.
6 Q. May I approach?
7 THE COURT: Yes.
8 Q. Page 7.
9 A. That's correct. At that time when this was filed that is
10 how I characterized the problem.
11 Q. So therefore, on September the 8th, 2000 -- were you under
12 oath, Sir?
13 A. Yes, when I signed this, yes.
14 Q. And you said that the inability to retrieve the audio files
15 described above was the result of an accident or a technical
16 problem, correct?
17 A. That's correct.
18 Q. May I approach, your Honor?
19 THE COURT: Yes.
20 (Pause in proceedings)
21 MR. TIGAR: No further questions at this time.
22 THE COURT: All right. Mr. Paul, you may examine.
23 CROSS EXAMINATION
24 BY MR. PAUL:
25 Q. Agent Kerns, I only have a few questions of you. Agent,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3490
47CLSAT5 Kerns - cross
1 I'm not going to ask you any questions about computers per se,
2 all right?
3 A. That's --
4 Q. Agent, you were not involved in conducting any electronic
5 surveillance in this case, is that right?
6 A. That's correct.
7 Q. And at some point, you became the liaison between the FBI
8 and the government in preparation of putting together evidence
9 that would be utilized in this trial. Is that fair?
10 A. Oh, yes, that's correct.
11 Q. And that would have been when?
12 A. I took over as coordinator for our monitoring plan in July
13 of 2002, and shortly afterwards, I started working with the
14 U.S. attorney's office as the con duty between the U.S.
15 attorney's office, the defense counsel and the FBI.
16 Q. We've never had any contact though, have we?
17 A. No.
18 Q. So your contact for the most part has been with the
19 government in their preparation of gathering the interceptions
20 that were made concerning the investigation of this case, is
21 that right?
22 A. That's correct.
23 Q. And as you gathered this information you became familiar
24 with the interceptions and the history of the gathering of this
25 information, is that fair?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3491
47CLSAT5 Kerns - cross
1 A. That's fair, correct.
2 Q. And during that as you gathered this information, you also
3 lenders exactly when this -- these interceptions began. Is
4 that not so?
5 A. That is correct.
6 Q. And would it be fair to say that the FBI began retrieving
7 intercepts concerning this case backs in March of 1995?
8 A. I remember it was 1995. But I'd have to actually look at
9 the first sets of audio that were turned Overton, or a review
10 of the Court order, to the exact date. But I know it was 1995.
11 Q. And let me -- may I approach your Honor?
12 THE COURT: Yes.
13 Q. I'll have you look at 3525B. Why don't you keep that up at
14 the witness box. And we'll refer to that. Okay?
15 A. Okay.
16 Q. Would you refer to Page 2 of that document, the bottom.
17 Does that refresh your recollection, if in fact it needs
18 refreshing, with regard to when these intercepts began
19 concerning the surveillance of gathering information for the
20 purpose of this trial?
21 A. Yes, it does.
22 Q. When was that?
23 A. That was -- it started in March of 1995.
24 Q. And would it be fair to say it continued with a lapse in
25 between, up until March of 2002?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3492
47CLSAT5 Kerns - cross
1 A. That's correct.
2 Q. Would it also be fair to say that while you retrieved these
3 documents, you gained information concerning the volume of
4 intercepts, the numbers of intercepts, involved in this
5 investigation?
6 A. Over time, it generally increased, yes.
7 Q. Did you come to learn that there were approximately a
8 minimum of 85,000 interceptions made with regard to beginning
9 in March of 1995 and continuing to March, 2002, concerning
10 gathering of surveillance, electronic surveillance for purposes
11 of this case?
12 A. Yes.
13 Q. Now, out of the 85,000 intercepts, would it be fair to say
14 that a certain percentage of those would be voice intercepts,
15 correct?
16 A. That's correct.
17 Q. And a certain percentage would be exceptions concerning
18 faxes -- correct?
19 A. That's correct.
20 Q. Other interceptions would be interceptions concerning
21 computer, Internet?
22 A. That's correct.
23 Q. Because that would be running on a telephone line, right?
24 A. It could be, yes.
25 Q. Now, since you were not actively involved in the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3493
47CLSAT5 Kerns - cross
1 surveillance, someone in the FBI, probably many people in the
2 FBI, at some point listened to all of these interceptions, is
3 that fair to say?
4 MS. BAKER: Objection.
5 Q. If you know.
6 MS. BAKER: Lack of personal knowledge.
7 MR. PAUL: I'm sorry, I can't hear Miss Baker.
8 THE COURT: Do you know?
9 THE WITNESS: No, I do not.
10 Q. Did you come to learn that -- well, let me ask you this,
11 Agent: Would it be fair to say that there are so-called
12 pertinent interceptions and nonpertinent interceptions in the
13 courses of an investigation?
14 A. Yes.
15 Q. Now, pertinent I would assume are conversations or
16 interceptions made that the government, in making these
17 interceptions, conducting this surveillance, is determining
18 which conversations or interceptions are important to the
19 ongoing investigation, is that not so?
20 MS. BAKER: Objection to form.
21 THE COURT: Overruled.
22 A. Yes, it would be whoever is listening to it makes a
23 determination of whether it's pertinent or not pertinent.
24 Q. Who would be listening to it, if you know, to make those
25 determinations?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3494
47CLSAT5 Kerns - cross
1 A. It would be whoever had access to that particular telephone
2 line during that period of time.
3 Q. These would be employees of the FBI, I assume, is that not
4 so?
5 A. Yes, that is so.
6 Q. These could be employees of the FBI who are gathering
7 information for purposes of an ongoing investigation,
8 eventually resulting in perhaps a trial. Is that not so?
9 A. Well, all this information is intelligence. Whether it --
10 I can't say whether it becomes a criminal investigation or not.
11 That is a decision that's made by the people who are in charge
12 of the case.
13 Q. But it's FBI employees who are conducting the surveillance,
14 who are making those determinations as to which are the
15 pertinent conversation and which are the nonpertinent
16 conversation, is that not fair?
17 A. No, they do.
18 Q. Out of the 85,000 intercepts that were made from March, '95
19 to march, 2000 and two, did you come to learn that there were
20 approximately 5,000 plus, 5100 plus, that were deemed by these
21 FBI employees to be pertinent, quote-unquote, intercepts?
22 A. Yes.
23 Q. And out of these pertinent calls, is it fair to say,
24 agents, that during the course of your action a liaison with
25 the government, that the government reached out to you and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3495
47CLSAT5 Kerns - cross
1 said, please copy or retrieve a whole list of these
2 conversations which we think we would like to hear or retrieve.
3 Is that not so?
4 A. I was told to retrieve everything.
5 Q. And in the course of your retrieving everything, you were
6 unable in fact to retrieve everything, is that not so?
7 A. That is correct.
8 Q. And in fact, Agent, is it fair to say that out of these
9 conversations that were deemed pertinent, there were at least
10 114 audios that were unable to be retrieved. Is that so?
11 A. That is correct.
12 Q. Now, you've described in your testimony today that there
13 were two different systems used during this course of time,
14 right?
15 A. That's correct.
16 Q. There was a system utilized before you came on board and
17 there was a system ongoing when you came on board, is that
18 right?
19 A. That's correct.
20 Q. And the system that was being utilized, since July, 2000,
21 is it fair to say that that's the system that he was copied or
22 attempted to be copied and retrieved onto these MO disks that
23 we've heard so much about?
24 A. I don't think I understand your question. Could you
25 restate it for me, please?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3496
47CLSAT5 Kerns - cross
1 Q. You've said there were two systems, correct?
2 A. There were two systems.
3 Q. And there was one system utilized by MO disks?
4 A. Okay, yes, that was the archive media. That is correct.
5 Q. And there was another system that was these electromagnetic
6 tapes that we've heard so much about?
7 A. That's correct.
8 Q. And out of the 114 conversations that were unable to be
9 retrieved, there were at least 34 that were not able to be
10 retrieved that were deemed pertinent, and those were from the
11 system since July, 2000, these MO disks. Is that not so?
12 A. That is correct.
13 Q. And out of the system that was utilized before July, 2000,
14 which were these electromagnetic things, out of the 114
15 unretrieved, there were approximately 80 conversations or
16 audios or intercepts that were unable to be retrieved by you?
17 A. That is correct.
18 Q. Now, is it also correct, Agent Kerns, that -- now I'm
19 directing your attention to the 34 pertinent calls, deemed
20 pertinent by your fellow employees, that were not retrieved
21 from the MO disks. These 34 calls.
22 A. Uh-huh.
23 Q. Out of those 34 pertinent calls, 21 of them were calls that
24 took place between September 27th, 2000, and October 2nd, 2000.
25 Is that not so?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3497
47CLSAT5 Kerns - cross
1 A. That is correct.
2 Q. And when the FBI went back to attempt to retrieve and
3 locate these 21 pertinent calls during this period of
4 September 27, 2000 and October 2nd, 2000, they were not able to
5 find those calls, is that correct?
6 A. That is correct.
7 Q. And in fact, when the FBI went back to retrieve these 21
8 pertinent calls during this period of time of some six days,
9 September 27 to October 2nd, 2000, it was also unable to
10 retrieve not only the 21 calls that had been deemed pertinent,
11 but in fact, you couldn't retrieve any calls during that
12 periods. Is that right?
13 A. That is correct.
14 Q. Non-pertinent, pertinent -- nothing. Right?
15 A. That is correct.
16 Q. Now, you also at attempted to retrieve an audio file of a
17 pertinent call on October 5th, 2000. Is that not so?
18 A. I'd have to review --
19 Q. Would you look at Page 5?
20 A. Five.
21 Q. 9B.
22 A. That's correct.
23 Q. And when the FBI went back to try to search for this
24 particular audio on October five, 2000, they couldn't find it,
25 correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3498
47CLSAT5 Kerns - cross
1 A. Correct.
2 Q. And in fact, when you went back or the FBI went back, I saw
3 you were involved in that?
4 A. I was, yes.
5 Q. You attempted to go back and retrieve that call. You
6 couldn't retrieve any calls, the pertinent call, nonpertinent
7 call, nothing that took place on October 5, 2000?
8 A. That's correct.
9 Q. And in fact, you had data or records indicating that there
10 were information interceptions that took place during these
11 periods of time that we're talking about. Correct?
12 A. Yes, the system told me that their recording system was
13 operating during that time.
14 Q. And was retrieving interceptions during that period of
15 time?
16 A. It just let me know that from this date to this dated it
17 was operational. Which means that there should be audio there.
18 Q. Well, we know that there were interceptions, do we not,
19 because didn't the government ask you to go back and retrieve
20 specific calls during this period of time we're talking about?
21 A. Yes.
22 Q. So that there was data indicating that there had been in
23 fact interceptions, correct?
24 A. There was pertinent calls that said they were interceptions
25 at that time.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3499
47CLSAT5 Kerns - cross
1 Q. And you couldn't find the pertinent, you couldn't find the
2 nonpertinent?
3 A. That is correct.
4 Q. Nothing was retrieved?
5 A. That is correct.
6 Q. Now, out of -- continuing on these 34 unretrieved pertinent
7 calls, 11 took place between December 25 and December 28th,
8 2000; is that not so?
9 A. That is correct.
10 Q. And you know this once again because your data from the
11 recording system shows that there were 11 calls that were
12 deemed to have been pertinent by your fellow employees and that
13 had been intercepted and saved, and you couldn't find them,
14 correct?
15 A. That's correct.
16 Q. And when you tried to retrieve these 11 new calls, you
17 could not only retrieve these 11 so-called pertinent calls, you
18 couldn't retrieve any of them?
19 A. That is correct.
20 Q. And the same could be said for January 13th, 2002. Is that
21 not so?
22 A. That's correct.
23 Q. Data showed that at least there was one pertinent call,
24 something that your agents, fellows agents deemed important.
25 You couldn't find it. Couldn't find that and couldn't find
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3500
47CLSAT5 Kerns - cross
1 anything else, is that right?
2 A. That's correct.
3 Q. Now, the system before July, 2000, we talked about it, you
4 discussed these electromagnetic tapes. Which were the system
5 that was utilized for saving intercepted calls on, is that
6 right?
7 A. That's correct.
8 Q. You went back and looked at these tapes and you've told us
9 that you found that they had been degrading, is that right?
10 A. That was a determination we made why we couldn't convert
11 some of them, that's correct.
12 Q. What does that mean? I know nothing from -- what does that
13 mean, degrade?
14 A. Just that when we -- as I testified earlier, when we put
15 the tape in and we tried to run the program, and actually read
16 the tape to see what was on there so that the information could
17 be pulled and converted, they didn't see anything, it would
18 just stop. It would stop operating; the program would
19 essentially crash. And we realized that we had a problem. We
20 would then take out the tape and try it in another tape room,
21 and keep going to try to do everything we could to try to
22 convert it.
23 Q. How many of these electromagnetic tapes were there
24 concerning the ongoing investigation of this case?
25 A. Over the entire period?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3501
47CLSAT5 Kerns - cross
1 Q. Yes.
2 A. I don't know an exact number.
3 Q. But you did discover that there was at least six and a half
4 of these electronic tapes had been back and degraded, unusable.
5 Is that not so?
6 A. That's correct.
7 Q. And from these electromagnetic tapes, you attempted to
8 retrieve calls that were at least deemed pertinent by your
9 fellow employees, there were approximately 80 of those, is that
10 right?
11 A. When we converted the tape, so it would convert everything
12 on that particular tape. So it would be pertinent and
13 nonpertinent.
14 Q. And you couldn't find anything off those?
15 A. Off which?
16 Q. The degraded tapes?
17 A. Some of them, I was able to, by an outside contractor, to
18 convert. However there were, as you stated, six and a half of
19 them that I could not convert at all.
20 Q. Is there any way for you to tell us how many of these
21 intercepts that were not retrieved, whether it be the old
22 system or the new system, were non -- were deemed nonpertinent
23 conversations?
24 A. No. It does not maintain records like that.
25 Q. So because -- withdrawn.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3502
47CLSAT5 Kerns - cross
1 Is there any way for you to tell me, if you took one
2 of these electromagnetic tapes, how many minutes of
3 conversations would that accommodate?
4 A. I don't know in the way of minutes. I was just told that
5 the tape could hold up to 14 gigabytes of data on it.
6 Q. Explain that to me.
7 A. We're talking about data. You were talking about, as you
8 mentioned before, bits and bytes. And if you're talking about
9 gigs of data that's on this there, it holds that much. That's
10 why when it was converted, as I stated before, you would have
11 as many, if that tape was full, as many as seven MO's full of
12 information from one particular tape. But as for how many
13 minutes it could record, I do not know that.
14 Q. Well, how many on an average from an MO disk would you be
15 able to retrieve? Can you determine that?
16 A. No oh. I don't know that.
17 Q. Well, would it be fair to say that we're talking more than
18 hundreds here? Or there's no way to know?
19 A. I really don't know, exactly. I just knows how full one
20 could possibly come out in the way of data. I know the amount
21 of minutes.
22 Q. And there's no way to tell how many on an average, how many
23 calls could have been lost, correct?
24 A. No, I don't know.
25 Q. You said that you have not listened to many conversations
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3503
47CLSAT5 Kerns - cross
1 that were intercepted. Is that right?
2 A. I haven't listened to almost all of them. I've only --
3 Q. I'm sorry?
4 A. I have not listened to almost all of them. I've only
5 listened to a couple of them for different reasons.
6 Q. During the time you became -- or after you became a liaison
7 between retrieving these intercepts and the government, you
8 became familiar with the investigation in terms of who was
9 charged, what the charges were, what the indictment looked
10 like. I assume you are familiar with that, is that not so?
11 A. Once I got involved, yes.
12 Q. Would it be fair to say that after you became involved, you
13 made a determination, or you learned that this period of time,
14 specifically, the end of September to October, 2000, was a
15 fairly important period of time, given the nature of these
16 offenses?
17 A. I was just told by the U.S. Attorney's office that it was
18 important. I did not know why.
19 Q. But you've looked at the indictment, correct?
20 A. I don't know if I've ever read the indictment.
21 Q. So you don't know what the indictment says concerning
22 allegations of this period of time?
23 A. No, I don't.
24 Q. But you do know from speaking to the government that it
25 clearly was an important period of time that they were
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3504
47CLSAT5 Kerns - cross
1 investigating, correct?
2 A. They were actively seeking those calls.
3 (Continued on next page)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3505
47CSSAT6 Kerns - cross
1 Q. And that seems to be, at least with regard to the latter
2 system that we utilized, the most number of calls that were not
3 intercepted or not retrieved by you, is that fair to say?
4 A. In a specific time period, that is fair, yes.
5 Q. Whether we are talking about pertinent as being by your
6 fellow FBI agents or nonpertinent, you could not retrieve that
7 period of time?
8 A. That is correct.
9 Q. Have you had an opportunity to listen to audios that were
10 retrieved where in fact the audio cuts off in the middle of the
11 conversation?
12 A. I was provided a list of some audios in a separate format
13 that had problems and I did listen to those and, yes, there
14 were calls that had that problem.
15 Q. And this list that was provided to you, would this have
16 been provided to you by the interpreters that were working and
17 listening to these and taking down the conversations?
18 A. No, it was provided by one of the defense counsel to the
19 U.S. Attorney's Office who then provided it to me.
20 Q. And this list of conversations that were provided to you,
21 you went back and in fact verified that the conversations, at
22 least these that you looked at, stopped in the middle of a
23 conversation, right?
24 A. That they did, yes. I did on that particular audio tape, I
25 did listen to those to see if it did end and, in fact, in a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3506
47CSSAT6 Kerns - cross
1 couple of cases I listened to that was in fact the case.
2 Q. And what would be, if you know, the explanation for an
3 audio that is intercepted that stops, cuts off in the middle of
4 an intercepted conversation?
5 A. Well, there could be several different technical reasons.
6 The line could possibly go dead. There could be a problem with
7 the actual target. There could be a problem with our
8 equipment. It all depends on where there is an issue.
9 Q. And were you ever able to track down the cause of those
10 conversations that just cut off?
11 A. No, I did not. In those cases all we did was pull the
12 original audio again which was off the VOC, which was correct,
13 and I can't remember if I provided those to the U.S. Attorney's
14 Office to provide back to the defense.
15 Q. The conversations that were deemed pertinent, these 5100
16 plus intercepts, were you given a list of these by the
17 government?
18 A. We actually made a list of those. From all of the
19 pertinent calls and technical cuts we created a data base so we
20 knew what we were looking for.
21 Q. So it was off of this data base that you then went to
22 attempt to retrieve these audios we have been talking about
23 that you could not in fact retrieve, is that right?
24 A. We were retrieving all audio but that was our wicket to try
25 and determine what we had found and what we hadn't because, as
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3507
47CSSAT6 Kerns - cross
1 I stated before, I can't tell you how many nonpertinent calls
2 are missing. I don't know that answer.
3 Q. You used the term wicket.
4 A. Wicket, as --
5 Q. We are not talking about computer, we are talk about from
6 beginning to end.
7 A. Yes, I am trying to say scope, the scope of what I am
8 looking for.
9 Q. I just thought I missed another technological expression.
10 A. No.
11 MR. PAUL: May I have just one minute please, Judge?
12 THE COURT: Yes.
13 Q. Agent, just to backtrack -- agent, the interceptions that
14 we are talking about that began in March '95 and ran until
15 March 2002, so we are clear, these are interceptions of
16 telephone, fax, computer that the target, that person or
17 individual you were intercepting was Mr. Sattar, is that not
18 so?
19 A. I believe that he was one of the intercepted numbers, that
20 is correct.
21 Q. And these interceptions, the majority, if not almost all of
22 these 85,000 audio files of voice calls, fax machines,
23 computers, most of these are the ones that were intercepted
24 with Ahmed Abdel Sattar being the target, is that right?
25 A. I believe so based on my knowledge of which telephone
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3508
47CSSAT6 Kerns - cross
1 numbers were his.
2 Q. Now, you testified that this began in '95, March '95, and
3 continued to March 2002.
4 Let's start with March '95. That ran to November '96
5 and then there is a lapse, is there not?
6 A. Yes, there was no FISAs, no intercepts, during that time.
7 There were no court orders for that time so there were no
8 intercepts.
9 Q. And that stopped on November '96 and did not pick up until
10 November '98, is that right?
11 A. That is correct.
12 Q. And then from '98 of November it continued to March 2002,
13 correct?
14 A. That is correct.
15 Q. And other than the fact that you indicated in your
16 testimony there were no court orders, that would be the reason,
17 as far as your knowledge is concerned, as to why there were no
18 interceptions between November '96 and November '98, is that
19 right?
20 A. That would be correct, yes.
21 MR. PAUL: Thank you.
22 I have nothing further.
23 THE COURT: All right.
24 Ms. Baker.
25 ///
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3509
47CSSAT6 Kerns - redirect
1 MS. BAKER: Your Honor, may I display again Government
2 Exhibit 1000L which is in evidence?
3 THE COURT: Yes.
4 REDIRECT EXAMINATION
5 BY MR. BAKER:
6 Q. Agent Kerns, during Mr. Tigar's cross examination of you he
7 showed you Government Exhibit 1000L and he was asking you some
8 questions about the column in that document which is headed
9 "last modified."
10 Do you remember those questions?
11 A. Yes.
12 Q. What is your understanding of the origin of the dates that
13 appear in that column headed last modified?
14 MR. TIGAR: Personal knowledge, foundation.
15 THE COURT: Overruled.
16 A. I believe that those could have possibly -- those were
17 generated --
18 THE COURT: Sustained. And rephrase.
19 MR. BAKER: Your Honor, may I approach the witness?
20 THE COURT: Yes.
21 Q. Agent Kerns, I handed you Government Exhibit 1000L. Let me
22 ask you to take a look at it. It is a multi-page document.
23 Just flip through it and look at it yourself for the moment.
24 Specifically if you would focus on that "last modified" column.
25 A. Okay.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3510
47CSSAT6 Kerns - redirect
1 Q. Putting the document aside for the moment and showing you
2 again, if I may, your Honor, Government Exhibit 1310A, which is
3 in evidence.
4 THE COURT: All right.
5 Q. You described in your direct testimony the two different
6 processes by which recordings were copied onto the computer
7 with the DVD burner, which is shown in position number 2,
8 correct?
9 A. That is correct.
10 Q. Were those recordings which were copied onto that computer
11 copied onto that computer on a variety of different dates?
12 A. Yes, they were.
13 Q. In Government Exhibit 1000L, the list that you have in
14 front of you, in the "last modified" column, does that column
15 show a variety of dates for the filings?
16 A. Yes, it does.
17 Q. Over approximately what period of time?
18 A. From 3/25 of 2004 through -- it looks like the latest date
19 is 4/14/2004, it appears.
20 Q. As you recall it, what was going on, what process were you
21 involved in doing with copying recordings during that period of
22 time?
23 A. I remember that that was -- during that time frame was when
24 I had first received the list from the U.S. Attorney's Office.
25 I was gathering all of the calls that they were requesting and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3511
47CSSAT6 Kerns - redirect
1 not only finding them on Government Exhibit 1310 in the servers
2 but, as I testified earlier, finding them on the MO disks and
3 copying all that information to one computer, but that was done
4 over a period of time.
5 Q. At any time in any of the steps that you took starting with
6 the MO disks and ending with the DVD, Government Exhibit 1000,
7 and also starting with recordings that were already on the
8 servers and ending with Government Exhibit 1000, did you do
9 anything that, to your knowledge, in any way modified any of
10 the files?
11 A. No, absolutely not.
12 Q. To your knowledge, did anyone else do anything that in any
13 way modified either the audio or nonaudio content of the files?
14 MR. TIGAR: Objection, your Honor, personal knowledge.
15 THE COURT: To his knowledge.
16 Overruled.
17 A. To my knowledge, no.
18 Q. Just to be clear and back up, when I asked you about what
19 you had done a minute ago, did you do anything at any point
20 that in any way modified either the audio recording portions or
21 the nonaudio data in any of the files?
22 A. No.
23 Q. Mr. Tigar asked you some questions in his cross examination
24 about the hiring of an outside contractor and then Mr. Paul
25 asked you some questions about the degradation of certain
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3512
47CSSAT6 Kerns - redirect
1 electromagnetic tapes. Do you remember those lines of
2 questioning?
3 A. Yes.
4 Q. The recordings that are now copied on Government Exhibit
5 1000, that file DVD, did any of those recordings result from
6 any tapes that were degraded and that were taken to the outside
7 contractor?
8 A. Not to my knowledge, no.
9 Q. Let me just ask you to explain a little bit how did it come
10 about that that outside contractor was consulted with respect
11 to certain tapes?
12 A. It came about when -- it was during the spring and summer
13 of 2003 -- we had exhausted every possible means for in-house
14 for converting the 8 millimeter tapes. We located a company
15 that had the ability to do it working through FBI headquarters
16 and we secured funding.
17 MR. TIGAR: Excuse me, your Honor, personal knowledge.
18 THE COURT: All right.
19 MR. TIGAR: The use of "we through headquarters."
20 THE COURT: Yes. Direct the witness' attention to his
21 personal knowledge.
22 Q. Agent Kerns, what role did you play in the process that
23 resulted in some electromagnetic tapes being taken to an
24 outside contractor?
25 A. I was responsible for contacting the contractor. I
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3513
47CSSAT6 Kerns - redirect
1 negotiated what we were going to be charged. I provided that
2 information to the case squad and then I was responsible for
3 actually flying out to the contractor and overseeing the work
4 that was done over a period of one week, Monday through Friday.
5 Q. What was the purpose of seeking the assistance of that
6 outside contractor?
7 A. We, as I stated, had exhausted every means that we could to
8 convert these tapes and we wanted to be able to provide
9 whatever was on there to the U.S. Attorney's Office, so I
10 believe we took I believe it was 33 tapes, some of which we
11 knew there was data for this case on them and other ones we
12 couldn't even read it so I didn't even know if there was
13 information regarding this case, but we took it anyway because
14 if there was a chance we wanted to get the information.
15 Q. As a result of the assistance of the outside contractor,
16 were contents retrieved from some of those tapes?
17 A. Yes, there was.
18 Q. How much did that cost the FBI to obtain the outside
19 contractor's assistance for that purpose?
20 A. We were charged $85,000.
21 Q. Could you describe generally what other efforts did the FBI
22 make to attempt to retrieve all of the audio recordings from
23 the surveillances in this case?
24 A. As I testified earlier with regard to the Raytheon system
25 and I believe it's 21 calls that we believe reside on two
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3514
47CSSAT6 Kerns - redirect
1 different volumes which I believe are one MO that was either
2 misplaced or mislabeled, we started a project of literally
3 indexing, and when I say that that is putting an MO into a
4 computer and copying the text of that information which calls
5 are on there, which telephone numbers and day/time groups and
6 loading that into a data base to look for the calls
7 specifically from the end of September to the beginning of
8 October, and that process is still ongoing as we speak.
9 Q. As far as your involvement in this process dealing with the
10 recordings connected with this case, what was your goal as far
11 as what percentage of the recordings would be retrieved?
12 A. 100 percent.
13 Q. And was that your goal with respect to both the pertinent
14 and nonpertinent calls?
15 A. Absolutely.
16 Q. Let me ask you about those phrases pertinent and
17 nonpertinent.
18 In investigations like the ones related to this case,
19 does the FBI follow certain standard practices or procedures
20 regarding what is done with the calls when they are first
21 intercepted?
22 A. As in how -- I am sorry, as in how they are archived or
23 maintained or --
24 Q. No, I mean more how they are utilized.
25 A. Yes, at least from my knowledge of how the system has
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3515
47CSSAT6 Kerns - redirect
1 operated since I have been there, they are recorded. They are
2 maintained, as I testified, on a data base at which point
3 people who have access to specific lines can listen to those
4 calls and review them for whether they are pertinent or not
5 regarding the investigation that they are involved in.
6 Q. And generally, as you understand it, what type of FBI
7 personnel participate in reviewing the recordings?
8 A. Either the majority of them are language specialists and it
9 depends if the majority of the calls are in English it could be
10 agents from the case squad.
11 Q. And as a result of review by the language specialists or
12 other people who are essentially conducting the investigation,
13 is that how calls are determined to be either pertinent or not
14 pertinent?
15 A. Yes.
16 Q. With respect to calls that are determined to be pertinent,
17 is there some sort of record prepared of such calls?
18 A. For pertinent calls, yes.
19 Q. What is that record?
20 A. We refer to it as a tech cut or technical cut. It is
21 nothing more than a Word Perfect document that has a
22 translation of what was said during the call.
23 Q. Now, you testified that there were certain pertinent calls
24 that were originally recorded in the surveillances that the FBI
25 has not been able to retrieve, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3516
47CSSAT6 Kerns - redirect
1 A. That is correct.
2 Q. For those pertinent calls are there technical cuts or tech
3 cuts that are in existence that set forth the substance of
4 those calls?
5 A. Yes, that is how I know they were pertinent pertinent.
6 Q. Mr. Tigar asked you some questions earlier about whether
7 recordings could be changed and then saved back to a magneto
8 optical disk.
9 Do you remember those questions?
10 A. Yes, I do.
11 Q. Agent Kerns, do you know which, if any, of the calls that
12 are going to be utilized in this trial relate to which, if any,
13 of the defendants sitting here in the courtroom?
14 A. No.
15 Q. Agent Kerns, does the New York office of the FBI have the
16 capability to in any way edit or change the audio content of
17 any of these recordings?
18 A. No, the information would have to be sent down to the
19 research facility in Quantico.
20 Q. Does the technology to be able to edit or change such
21 recordings exist in the New York office?
22 A. We have no equipment like that in my office that I am aware
23 of.
24 Q. During cross examination Mr. Tigar refreshed your
25 recollection with a portion of an affidavit that you had
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3517
47CSSAT6 Kerns - redirect
1 previously signed and he asked you whether an accident or
2 technical problem affected certain calls on one particular
3 magneto optical disk, do you remember those questions?
4 A. That is correct.
5 Q. To your knowledge, were any calls on the trial DVDs that I
6 showed you earlier, Government Exhibits 1000, 1015 and 1300,
7 affected by any accident or technical problems?
8 A. Not to my knowledge, no.
9 Q. In the more recent cross examination by Mr. Paul, who was
10 asking you about the relative numbers of pertinent versus
11 nonpertinent calls and the numbers of recordings overall, what
12 is your understanding of the approximate total number of
13 recordings?
14 A. That it was somewhere over 85,000, which is what we had
15 turned over, and that there was roughly a little over 5,000
16 that were considered pertinent where a technical cut was
17 created.
18 Q. Now, that larger number, the 85,000, did that consist only
19 of voice calls, that is, people having conversations with each
20 other?
21 A. No, it did not.
22 Q. What else did it include?
23 A. These systems will record anything on that telephone line,
24 so if it is data, a computer modem, it will record that noise.
25 The system does not look at and say, oh, it's voice, I will
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3518
47CSSAT6 Kerns - redirect
1 record this and I won't record noise. It just realizes that
2 there is something on the line and it should start to record.
3 Q. So if the particular telephone line were being used with a
4 fax machine, would the system just record the sound of the fax
5 machine operating?
6 A. Yes, it would.
7 Q. And what if the particular telephone line were being used
8 with a computer modem?
9 A. You would just hear rushing noise for how long that
10 individual was on on the Internet.
11 Q. Of the 85,000 or so total recordings that were made in
12 these surveillances at issue in this case, do you know how many
13 of them were recordings of the sounds of a computer modem or
14 fax machine?
15 A. No, I don't.
16 Q. Do you know even on an order of magnitude, in other words,
17 was it thousands or tens of thousands?
18 A. I don't know.
19 Q. Mr. Paul asked you in particular about certain periods of
20 time in 2000 and 2002 for which you were not able to retrieve
21 the recorded calls. Do you remember those questions?
22 A. Yes.
23 Q. How hard did you try to locate and retrieve those calls?
24 MR. PAUL: Objection.
25 THE COURT: Rephrase.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3519
47CSSAT6 Kerns - redirect
1 Q. What was your goal as far as what percentage or how many of
2 those calls from those periods of time you were seeking to
3 retrieve?
4 A. I wanted to find absolutely all calls because I did realize
5 very early -- not very early on but during this process that I
6 was going to have to testify at some point to the work that
7 myself and the people who work with me had done and I wanted to
8 be able to say that we turned over everything and that is why
9 we continue to look for some of these calls now.
10 Q. Are there efforts in that regard that are still ongoing
11 today?
12 A. We are still reviewing MOs that are in or that have been
13 archived for the calls from the Raytheon system, which is the
14 system that went from July on, July 2000 on.
15 MS. BAKER: Your Honor, I would like a minute to
16 confer with co-counsel. I don't know if you would like to take
17 a break, or if not if I can just have a moment.
18 THE COURT: Take a moment.
19 (Pause)
20 Q. Agent Kerns, what kind of investigation was it that these
21 surveillances were part of?
22 A. They were part of the --
23 MR. PAUL: Objection.
24 THE COURT: Sustained.
25 A. That they were under --
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3520
47CSSAT6 Kerns - redirect
1 MR. PAUL: Objection.
2 THE COURT: Sustained.
3 We can take it up at the break.
4 Q. Agent Kerns, directing your attention again to Government
5 Exhibit 1000L and the "last modified" date column on there, to
6 your knowledge, what, if any, connection is there between those
7 dates that appear in that column and the use of the computer
8 with the DVD burner that appears in positions numbers 2 and 4
9 on the diagram which is Government Exhibit 1310A?
10 MR. TIGAR: Objection, your Honor, that goes to
11 personal knowledge.
12 THE COURT: Do you know?
13 THE WITNESS: Your Honor, I can say what I believe but
14 I cannot say with 100 percent certainty where that date came
15 from.
16 THE COURT: Fine.
17 Move on.
18 Q. Agent Kerns, what is your understanding of what the
19 consequences would be to you or anyone else who in any way
20 modified the audio or nonaudio contents of any of these
21 recordings?
22 MR. PAUL: Objection.
23 THE COURT: Overruled.
24 A. If anyone, and I mean anyone, who was involved with this
25 case did anything to change the content, what was said in these
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3521
47CSSAT6 Kerns - redirect
1 files, and provide it as original evidence, at the very least
2 they would find themselves fired from the FBI and probably in
3 most cases they would find themselves criminally prosecuted.
4 That is, I can't even begin to explain how egregious something
5 like that is. You do not, and I know that -- you are taught
6 that from day one of becoming an FBI agent and I know it
7 personally because I used to work white collar crime and I was
8 involved in criminal investigations for several years.
9 MS. BAKER: Your Honor, I have no further questions at
10 this time and the government renews its offers, as I stated
11 earlier, of Government Exhibits 1000 and 1015.
12 THE COURT: All right.
13 MR. TIGAR: Recross.
14 THE COURT: Recross.
15 Mr. Tigar, you may examine.
16 RECROSS EXAMINATION
17 BY MR. TIGAR:
18 Q. I want to start with your last answer, sir.
19 It would be egregious and criminal for anybody to get
20 into those files and alter them in some unauthorized way,
21 correct?
22 A. If they changed what was said in those files, absolutely.
23 Q. Now, did that happen in the history of the FBI, that people
24 have gotten unauthorized access to files, correct?
25 MS. BAKER: Objection.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3522
47CSSAT6 Kerns - recross
1 THE COURT: Sustained.
2 A. I do not --
3 THE COURT: No, sustained.
4 Go ahead.
5 Q. With respect to digital information in the possession of
6 the FBI concerning major investigations, have there been
7 instances of which you are aware of unauthorized access?
8 MS. BAKER: Objection.
9 THE COURT: Sustained.
10 Q. We agree that unauthorized access would be a problem, yes?
11 A. A serious one, yes.
12 Q. Now, is there on these computers a program that requires a
13 person who gets access to identify themselves to the computer
14 and log the file in and out?
15 MS. BAKER: Objection, asked and answered and beyond
16 the scope of redirect.
17 THE COURT: Overruled.
18 A. All of this information was maintained in our computer room
19 which on the computers that it's on you would have to log in
20 and you would have to have access to the computer room in the
21 first place to get in to do any work in there.
22 Q. My question is when you have logged in -- you log in with a
23 password, correct?
24 A. That is correct.
25 Q. Is there in the system an audit trail that shows what has
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3523
47CSSAT6 Kerns - recross
1 been done with a file that a person accesses?
2 A. Not to my knowledge, no.
3 Q. You testified that the FBI in New York, to your knowledge,
4 does not have a system that permits people to change files?
5 A. To change content of files, no.
6 Q. Well, the New York field office has a system that permits
7 losing files, doesn't it?
8 MS. BAKER: Objection.
9 THE COURT: Overruled.
10 A. I won't say permit. That was a mistake.
11 Q. So you lost files, right?
12 A. We were not able to find files for this case, that is
13 correct.
14 Q. Files got degraded, correct?
15 A. In some cases, yes.
16 Q. Did you ever have computer crashes?
17 A. Are you referring -- which system are you referring to?
18 Q. In any of the computer systems on that exhibit which you
19 drew the server things on, did you have computer crashes?
20 A. Yes.
21 Q. To your knowledge, can computer crashes corrupt files?
22 A. They can if -- yes, they can.
23 Q. So that there are ways in the New York field office in
24 which files, the digital information files, can be lost or
25 changed, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3524
47CSSAT6 Kerns - recross
1 MS. BAKER: Objection.
2 THE COURT: Sustained.
3 Q. Now, you testified that there are some circumstances under
4 which you can send files to Quantico. They have different
5 technology down there?
6 A. Yes, they do.
7 Q. And do you know anything about their technology?
8 A. Other than the fact that they can enhance, have the ability
9 in some cases to enhance calls, other than that I don't know
10 what other capabilities they have down there.
11 Q. So when you say "enhance," can they change the audio
12 information on files?
13 MS. BAKER: Objection.
14 THE COURT: Basis?
15 MS. BAKER: Lack of personal knowledge, beyond the
16 scope.
17 THE COURT: What do you mean by enhancement?
18 THE WITNESS: From this case, it's my understanding
19 that on a particular telephone call one side, one person who
20 was speaking on one side of the telephone, it was very low and
21 you could not hear it. In fact, I believe that was the
22 Government Exhibit CD that I was provided that I identified.
23 That information was taken to a CD. It was copied to a CD and
24 that information was then provided down to ERF for them to
25 attempt to bring up the voice level on the other side of the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3525
47CSSAT6 Kerns - recross
1 call and provide that information back to us.
2 Q. Now, do you know how they manipulate the digital
3 information on the file to be able to do that?
4 A. No, I have no idea.
5 Q. Does Mr. Elliott work in Quantico?
6 A. Yes, he does.
7 Q. Now, you said you took 33 electromagnetic tapes out to the
8 outside provider, correct?
9 A. Yes.
10 Q. Were these the electromagnetic tapes about which you
11 testified this morning?
12 A. Yes.
13 Q. And each one of those contains how many gigabytes of
14 information?
15 A. They could contain -- it's my understanding they could
16 contain up to 14 gigabytes of data.
17 Q. So a total of 462 gigabytes with your 33 files?
18 A. Yes.
19 Q. Now, 463 gigabytes is how many megabytes?
20 MS. BAKER: Objection, relevance.
21 THE COURT: Overruled.
22 A. I don't know. I don't have a calculator.
23 Q. A lot?
24 A. A lot.
25 Q. Now, on these 33 tapes, what percentage of the total number
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3526
47CSSAT6 Kerns - recross
1 of electromagnetic tapes that you had did the 33 tapes
2 represent?
3 A. I don't know a percentage off the top of my head. I just
4 know these were 33 tapes in which we knew there -- either we
5 knew for a fact there was information on there or we believed
6 there was information on there for this case.
7 Q. And the contractor was able to get something off some of
8 these tapes, correct?
9 A. They made a mirror image, yes.
10 Q. They made what?
11 A. They made a mirror image of the tape.
12 Q. What is that?
13 A. They took the tape that was degraded. They put it into a
14 tape player. They had another tape player connected to the
15 same computer and it just copied the information across.
16 Everything that was on this tape is now on this tape, on the
17 ones they were able to image.
18 Q. Is mirror image something technical? I am sorry, I don't
19 understand the word.
20 A. No.
21 Q. If I looked in the mirror it's an image.
22 A. I am sorry, when I say mirror image I am talking about it
23 copied every single piece of information that was on there, if
24 it was possible, across. And they were right next to each
25 other. I had those tapes and then I had a lot of blank ones.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3527
47CSSAT6 Kerns - recross
1 Q. Did you track the recovered conversations that this
2 contractor was able to make thereafter to see if any of those
3 were ones that wound up on Government 1000?
4 A. I looked at Government 1000 relating to what I knew was
5 missing prior to the trip and I did not see anything that
6 was -- I am sorry, I did not see anything from the list
7 comparing to what I was missing before compared to what we are
8 missing today. That matches Government Exhibit 1000 as it
9 being that it had been one of those tapes and had been imaged
10 and then had come back.
11 Q. My question, sir, was: Did you perform that check with
12 respect --
13 A. Yes, I --
14 Q. Just a minute.
15 Did you perform that check with respect to all of the
16 files on all 33 of the 14 gigabyte tapes you took out there?
17 A. No.
18 Q. So as you sit there today you do not know the answer
19 whether any of the calls on those 33 tapes wound up on
20 Government 1000, is that correct?
21 A. I am sorry, I am confused now.
22 Q. Okay.
23 Can you tell us, sir, based on having checked, whether
24 or not any of the calls on the 33 tapes you took out there
25 wound up on Government Exhibit 1000? Do you know?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3528
47CSSAT6 Kerns - recross
1 A. Okay, I did review Government Exhibit 1000L, which I have
2 here, which is part of -- which is the document associated with
3 Government Exhibit 1000, I believe, and I did not see any calls
4 that were missing prior that are now on here.
5 Q. I didn't ask you missing, sir. I am asking about the 33
6 tapes.
7 A. I am just trying to think of a way to phrase this to answer
8 your question.
9 Q. I might not be asking you correctly.
10 You took 33 tapes?
11 A. That is correct.
12 Q. Did all 33 tapes have missing data?
13 A. No. I don't know.
14 Q. Why did you choose those 33?
15 A. Because they were in the system where it was in part of the
16 Lockheed Martin system during the time frames that this case
17 was active that I believed there were calls on some. I know
18 there were calls on some of them. Other ones they were just in
19 there at that time. I couldn't read the tape to see if there
20 was anything on it associated with this case. We had one
21 chance to do this so I took them with me.
22 Q. Now, as a result of this process you retrieved a certain
23 number of calls, right?
24 A. That is correct.
25 Q. How many?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3529
47CSSAT6 Kerns - recross
1 A. I don't know.
2 Q. Did you make a list of all those calls you retrieved at
3 some time?
4 A. No, I did not.
5 Q. Did you have any means to check to see if any of the calls
6 that you retrieved of which you didn't make a list wound up on
7 Government Exhibit 1000?
8 A. There was a way, yes. As I was stating before, I had a
9 list of what was missing, pertinent calls, when I left. When I
10 came back and when we put a final list together that was
11 provided in the affidavit that I signed of September 25, 2003,
12 that had a list of 114 which was less than the original list.
13 I looked at the original list. I compared it and I did not,
14 when I did that, I did not see anything from that list of
15 however many pertinent calls were missing that are on this list
16 here.
17 Q. Now, the list of calls that were missing, did you make that
18 before you went to this contractor or after?
19 A. I have a list that is dated prior to my trip to the
20 contractor, yes.
21 Q. But you didn't make a list afterwards?
22 A. No, I did not.
23 Q. The list you compared to Government Exhibit 1000 is the
24 list from before you went, correct?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3530
47CSSAT6 Kerns - recross
1 Q. All right.
2 Now, when you negotiated this contract, did you get
3 competitive bids?
4 MS. BAKER: Objection, relevance.
5 THE COURT: Sustained.
6 Q. Did you make memoranda of your conversations with the
7 contractor of what your problems were?
8 A. I don't remember making or writing down the conversations,
9 but I did provide them verbally what the issues were that we
10 were having and the fact that we were having problems and that
11 they weren't going to really be able to do anything or tell me
12 anything until they actually saw the tapes and attempted to
13 copy them.
14 Q. Before having the verbal encounter with these folks, did
15 you make notes of what the problems were to guide you?
16 A. No, I just knew that these 33 tapes had issues.
17 Q. You went out to the contractor. You were there for an work
18 week, correct?
19 A. One work week.
20 Q. In that work week, did you make memoranda of what
21 investigation you were conducting?
22 A. No. I did not write down anything other than whether a
23 tape was converted or not.
24 Q. You did write down whether a tape was converted or not?
25 A. That is correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3531
47CSSAT6 Kerns - recross
1 Q. And in what form did you write that down?
2 A. I believe I wrote it down on a piece of paper so that when
3 I got back I knew which tapes had not been converted and which
4 ones we were not going to be able to get any information off
5 of.
6 Q. Were you conducting an investigation when you were trying
7 to get this information?
8 A. I don't think I deem it an investigation. I don't think I
9 understand your question.
10 Q. Do you have a practice in the FBI of making Forms 302 about
11 activities that you conduct?
12 A. There is that practice. Tech agents don't write 302s.
13 Q. Tech agents don't --
14 A. Write 302s. It is written in FBI documents. The tech
15 agents usually do not testify in the way of technical
16 operations except for people like Mr. Elliott from Quantico.
17 However, because of the circumstances of this case I was told
18 that I could testify regarding what was done during this
19 period.
20 Q. And you said earlier that you knew at some point that you
21 were going to have to give evidence in this case and therefore
22 you wanted to be careful, correct?
23 A. Not be careful. I wanted to be able to provide as much
24 information as humanly possible.
25 Q. And you wanted to be able to provide it to a court and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3532
47CSSAT6 Kerns - recross
1 jury, correct?
2 A. Absolutely.
3 Q. And you became aware of that when?
4 A. When I was going to testify?
5 Q. No, just the idea that you might.
6 A. I guess possibly it was towards sometime last year is when
7 it was becoming more and more apparent that someone from my
8 office was going to have to testify and due to the fact that I
9 oversee operations in the monitoring plant, I was the most
10 likely candidate, as well as I was the liaison.
11 Q. And you knew it was important what this contractor was
12 doing with these tapes, didn't you, sir?
13 A. I am sorry?
14 Q. You knew that what this contractor was doing with these
15 tapes was important, didn't you, sir?
16 A. Yes.
17 Q. Did you think or have an idea that what this contractor was
18 doing with these tapes might some day be an issue in a court
19 for a jury?
20 A. Possibly, yes.
21 Q. That crossed your mind, didn't it?
22 A. I don't think it crossed my mind at that time. What was
23 crossing my mind at that time was the fact that I was happy
24 that we were able to convert as many tapes as we did and that
25 we were going to have some issues with tapes that we could not
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3533
47CSSAT6 Kerns - recross
1 convert where I know there were pertinent technical cuts that I
2 was not going to be able to provide.
3 Q. You would not be able to provide to whom?
4 A. To everyone.
5 Q. "Everyone" includes the jury?
6 A. Well, when I say everyone, I am referring -- I can't give
7 it to the case squad. I can't give it to the U.S. Attorney's
8 Office. I can't provide it to the defense. I can't provide it
9 to anyone.
10 Q. And did you consult any manual or rules about whether or
11 not you should take notes of your work during this week?
12 MS. BAKER: Objection, relevance.
13 THE COURT: Sustained.
14 Q. Were you given any instructions by anybody as to whether or
15 not you should take notes during this week?
16 MS. BAKER: Objection, relevance.
17 THE COURT: Overruled.
18 A. No.
19 Q. You decided that on your own?
20 A. I took what notes I thought were important at the time for
21 what I was doing.
22 Q. And are they still in existence, those notes?
23 A. Yes, along with the chain of custody evidence that I
24 created for taking the evidence out of the computer room and
25 bringing it back.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3534
47CSSAT6 Kerns - recross
1 Q. Where are they?
2 A. I provided it when I got back, which was yesterday, to the
3 U.S. Attorney's Office.
4 MR. TIGAR: Your Honor, would this be a good time to
5 take the afternoon break, your Honor?
6 THE COURT: All right.
7 Ladies and gentlemen, we will take ten minutes.
8 Please remember my continuing instructions not to talk
9 about the case. Keep an open mind.
10 All rise please.
11 Follow Mr. Fletcher to the jury room.
12 (Jury left the courtroom)
13 MR. TIGAR: Your Honor, I can't find the notes.
14 THE COURT:: The witness can step down.
15 The parties may consult. We will take ten minutes.
16 (Recess)
17 (Continued on next page)
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3535
47CSSAT6 Kerns - recross
1 (In open court; jury not present)
2 THE COURT: Ms. Baker?
3 MS. BAKER: In response to Mr. Tigar's comment that he
4 doesn't have or could not find the document to which the
5 witness was referring to in the last series of answers and
6 questions, Mr. Tigar doesn't have those documents because I
7 received them from the witness yesterday, reviewed them,
8 determined that they were not 3500 material because they did
9 not relate to the substance of the witness's direct testimony,
10 which I'll come back to again in a moment, and to not contain
11 any exculpatory or impeachment material; and to my knowledge
12 they are not otherwise discoverable under Rule 16.
13 Now, as to why they do not relate to the subject
14 matter of the witness's testimony, I asked Agent Kerns in
15 speaking with him yesterday whether any of the calls on the
16 trial DVDs were the result of the work done on the tapes by the
17 contractor in Minnesota, and Agent Kerns said, No, that the
18 calls that are on the trial DVDs had been worked on by the FBI
19 without the assistance or benefit of the work done by the
20 contractor. So while the work done by the contractor might be
21 relevant to the issues raised on cross-examination about the
22 fact that even after all the best efforts were made, some calls
23 ultimately were not retrieved, that work and therefore
24 documents related to that work was not within the subject
25 matter of the direct examination.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3536
47CSSAT6 Kerns - recross
1 MR. TIGAR: The material is concededly a statement or
2 statements of the witness. Therefore, under Section 3500(c),
3 the claim that Ms. Baker has made can only be resolved by your
4 Honor. That's what the statute says.
5 MR. TIGAR: With respect to the scope question, your
6 Honor, the witness said that he went there with a list but did
7 not make a list when he was done. He cannot say that none of
8 the calls on the 33 tapes, 462 gigabytes, found their way into
9 the government's Exhibit 1000, that is, the DVD. Moreover,
10 your Honor, the issue is not what's on government Exhibit 1000.
11 The issue is whether, under the standards most recently
12 elaborated by Judge Kearsh in Hamilton, which I believe your
13 Honor cited this morning, there is clear and convincing
14 evidence to make the authenticity -- or excuse me, the
15 admissibility determination, the various parts of which,
16 elements of which, will be the subject of some discussion.
17 And of course ultimately under 3500 c, that's all I
18 can say. I can't be a part of that process. That's the
19 Court's decision.
20 THE COURT: Look, it's not clear to me whether my
21 review of those notes would reveal anything. Isn't it a
22 relatively straightforward task for the government to review
23 those lists and to advise us whether that comparison of the
24 calls that were missing could or couldn't be retrieved before
25 the trip to the consultant, and then showed up on one of the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3537
47CSSAT6 Kerns - recross
1 calls on Government Exhibit 1000?
2 MS. BAKER: Your Honor, that is exactly what Agent
3 Kerns did yesterday at my request. And the answer is,
4 Negative. That the calls listed as missing did not show up on
5 Government Exhibit 1000.
6 THE COURT: That's the way in which I understood his
7 testimony, but -- go ahead.
8 MR. TIGAR: The testimony was, he made a list of calls
9 that he said were the missing calls. I don't have to accept
10 that those are the only missing calls. All I need to accept is
11 that at some point he made a list. He then took the 33 DVDs --
12 or excuse me, 33 tapes. That's a larger universe than the
13 electromagnetic tapes from which his list of calls is derived.
14 I don't yet know how he selected the 33 tapes.
15 He then did something with them or a contractor did
16 something with the tapes. These tapes, your Honor, constitute
17 the most original evidence in the case. He didn't say he made
18 copies and then took them. He took 33 tapes, 462 gigabytes of
19 digital files. He did something with them, and the contractor.
20 He then did not make a list of the files that the contractor
21 retrieved or got. And therefore could not say that none of
22 those calls is on Government Exhibit 1000.
23 Your Honor, I'm not saying there has to be a perfect
24 chain of custody here. But here's a guy who without any
25 documentation so far, as we now know, unless it's on, you know,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3538
47CSSAT6 Kerns - recross
1 this material, takes the most original evidence in the case,
2 the original had been destroyed, takes them out of the office,
3 gives them to a contractor, and we're supposed to say, Oh,
4 fine.
5 I don't know what files those were. That has not been
6 established, your Honor, and he can't tell us that. He can
7 tell us the relationship with his list that he made before, and
8 Government 1000. From his recollection. You know, which is:
9 I checked and I don't remember anything. Well, there's nothing
10 I can do to impeach that. But there's a problem here, your
11 Honor.
12 THE COURT: All right. Ms. Baker?
13 MS. BAKER: Your Honor, in fact, there is chain of
14 custody documentation reflecting each and every tape that Agent
15 Kerns took to Minnesota and brought back. And, you know -- but
16 the point is that this isn't civil litigation with a bear
17 relevance threshold for discovery. In a criminal case,
18 discovery is available under Rule 16, under 18 USC Section 3500
19 or under Brady and its progeny. These documents don't fall
20 within any of those categories, and so although I take issue
21 with Mr. Tigar's characterizations of the record, I don't
22 believe that disclosure of the documents are necessary or
23 legally founded.
24 THE COURT: All right. I guess you have to give them
25 to me and I have to review them under 3500. And you can give
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3539
47CSSAT6 Kerns - recross
1 them to me -- do you have a copy? I'd prefer to look at a
2 copy.
3 All right, I'll look at them. Let's call the witness
4 back.
5 MR. TIGAR: Your Honor -- I'm sorry, your Honor, the
6 acoustics here are sometimes not very good. I will have no
7 further questions of the witness, your Honor, pending the
8 Court's review. I would ask -- I am going to ask him -- and
9 we'll see if maybe I should be limited on it. I was going to
10 ask him the name of the contractor.
11 THE COURT: Did he testify about the contractor on
12 direct?
13 MR. TIGAR: Redirect -- actually, on direct, your
14 Honor.
15 MS. BAKER: Your Honor, the subject first came up on
16 cross-examination.
17 THE COURT: All right. He didn't testify about the
18 consultant on direct?
19 MS. BAKER: No, your Honor.
20 THE COURT: Okay.
21 MR. TIGAR: I won't ask the question if the Court will
22 sustain an objection to it. The relevance of it, it seems to
23 us, your Honor, is he put it in issue on September 8th, 2003.
24 And it has to do with this overall authenticity determination.
25 THE COURT: All right. Ms. Baker?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3540
47CSSAT6 Kerns - recross
1 MS. BAKER: Your Honor, my position is that because
2 there wasn't testimony about this on direct; because, to the
3 government's knowledge, these recordings didn't end up on the
4 trial DVDs, that it isn't 3500 material. It isn't at issue
5 here.
6 THE COURT: I'm talking about the name of the
7 contractor.
8 MS. BAKER: I would submit that the name of the
9 contractor is not relevant. Besides the lack of relevance, I'm
10 not aware of any other legal issue relating to its disclosure.
11 THE COURT: Well, he's certainly been examined. He
12 can testify to that. All right. Bring the jury in ....
13 MR. BARKOW: Your Honor, may our next witness be
14 dismissed?
15 THE COURT: Yes. I have to dismiss the jury a little
16 before 4:30.
17 (Jury entering the courtroom)
18 THE COURT: Please be seated, all.
19 MR. TIGAR: May I proceed, your Honor?
20 THE COURT: Yes.
21 BY MR. TIGAR:
22 Q. Two questions. On that Raytheon system, when you said on
23 redirect that there was text on the files, is that the nonaudio
24 information, when you say "text"?
25 A. Yes. When I state text, in that case I was talking about
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3541
47CSSAT6 Kerns - recross
1 the .voc heard that was shown as one of the exhibits, yes.
2 Q. Question 2: What is the name of the contractor?
3 A. The name of the contractor is Ontrack, one word, Data
4 Recovery. They're located in Minneapolis, Minnesota.
5 MR. TIGAR: Subject to the pending matter, no further
6 questions.
7 THE COURT: All right.
8 MR. PAUL: I have no questions.
9 THE COURT: Ms. Baker?
10 MS. BAKER: Sorry, your Honor.
11 REDIRECT EXAMINATION
12 BY MS. BAKER:
13 Q. Agent Kerns, based on your review of relevant -- what you
14 believe to be relevant documentation, to your knowledge, are
15 any of the calls that are on the DVD marked as Government
16 Exhibit 1000 calls that resulted from the recovery work done by
17 this contractor in Minnesota?
18 MR. TIGAR: Objection, your Honor. Personal
19 knowledge.
20 THE COURT: Overruled.
21 A. I don't believe there are, no.
22 Q. On recross examination, Mr. Tigar asked you some questions
23 about the fact that calls were lost. Are there any calls that
24 are lost on government Exhibit 1000?
25 A. Not to my knowledge, no.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3542
47CLSAT7 Kerns - redirect
1 Q. Mr. Tigar asked you whether there were instances when their
2 reporting systems might have crashed?
3 A. Yes, he did.
4 Q. In instances when the recording system crashes, does that
5 result in non-recording of calls?
6 A. When the system -- and I'm only speaking now of the
7 Raytheon system. If there was a problem with that system and
8 it does, as you might say, crash, right, it does not record
9 anything.
10 Q. So on government Exhibit 1000, are there any calls that
11 resulted from the system crashing?
12 A. No. I wouldn't even know if calls -- I would have to know
13 the exact times that the system crashed, and I wouldn't know --
14 there's no way to track if calls came in during a system
15 failure. It just -- the system isn't working, it's not
16 recording.
17 MS. BAKER: Thank you, nothing further.
18 MR. TIGAR: One more, your Honor, if I may.
19 THE COURT: Limit it to redirect.
20 MR. TIGAR: Yes, sir.
21 RECROSS EXAMINATION
22 BY MR. TIGAR:
23 Q. A system can crash during file transfer as well as during
24 file acquisition, correct, Sir?
25 A. Yes, it can.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3543
47CLSAT7 Kerns - recross
1 Q. Very well.
2 THE COURT: All right. Ms. Baker?
3 REDIRECT EXAMINATION
4 BY MS. BAKER:
5 Q. Agent Kerns, if a call had failed to transfer from the hard
6 drive of a recording system to the archival medium, could it be
7 on Government Exhibit 1000?
8 A. No.
9 THE COURT: All right. Ladies and gentlemen, it's
10 just about time for us to break for the day. So we will break
11 for the day. In terms of schedule, this Thursday, because of
12 scheduling issues, we will break at about 12:15. So we'll be
13 sitting today, tomorrow, Wednesday, and Thursday morning. And
14 that concludes the day for today.
15 And so we'll start again tomorrow at 9:30. Please,
16 please remember my continuing instructions: Don't talk about
17 the case or anything or anyone who has anything to do with it.
18 Don't look at or listen to anything to do with the case. If
19 you should see or hear something, simply turn away. Always
20 remember to keep an open mind until you have heard all of the
21 evidence, I've instructed you on the law, and you've gone to
22 the jury room to begin your deliberations. Fairness and
23 justice to the parties requires that you do that.
24 All right. Have a very good evening. I look forward
25 to seeing you tomorrow.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3544
47CLSAT7 Kerns - redirect
1 All rise, please.
2 Follow Mr. Fletcher to the jury room.
3 (The jury exits the courtroom)
4 (In open court; jury not present)
5 THE COURT: Please be seated. Agent Kerns, you may
6 step down.
7 THE WITNESS: Thank you, your Honor.
8 THE COURT: Agent Kerns' testimony is complete other
9 than my rules on whether these are statements under 3500. And
10 I will review them and I will see you all at 9:00 o'clock
11 tomorrow morning.
12 The government's offer is then with respect to
13 Government Exhibit 1000 and 1015. Is that right?
14 MS. BAKER: Yes, your Honor.
15 THE COURT: Okay. I'll listen to all of you at that
16 time.
17 (Adjourned to Tuesday, July 13, 2004, at 9:00 a.m.)
18 o 0 o
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3545
1 INDEX OF EXAMINATION
2 Examination of: Page
3 SCOTT L. KERNS
4 Direct By Ms. Baker . . . . . . . . . . . . 3380
5 Cross By Mr. Tigar . . . . . . . . . . . . . 3424
6 Cross By Mr. Paul . . . . . . . . . . . . . 3489
7 Redirect Ms. Baker . . . . . . . . . . . . . 3509
8 Recross By Mr. Tigar . . . . . . . . . . . . 3521
9 Redirect By Ms. Baker . . . . . . . . . . . 3541
10 Recross By Mr. Tigar . . . . . . . . . . . . 3542
11 Redirect By Ms. Baker . . . . . . . . . . . 3543
12
13 GOVERNMENT EXHIBITS
14 Exhibit No. Received
15 1310 . . . . . . . . . . . . . . . . . . 3392
16 1310A . . . . . . . . . . . . . . . . . . 3405
17 o 0 o
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
HTML by Cryptome.