6 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
Note: Transcripts were not provided between 1 June and 21 June, 2004.
This is the transcript of Day 17 of the proceeding and Day 8 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/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
3 UNITED STATES OF AMERICA,
3
4 v. S1 02 Cr. 395 (JGK)
4
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
6
7 Defendants.
7
8 ------------------------------x
8
9
9 New York, N.Y.
10 July 6, 2004
10 9:15 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
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13 District Judge
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1 APPEARANCES
1
2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ROBIN BAKER
4 CHRISTOPHER MORVILLO
4 ANTHONY BARKOW
5 ANDREW DEMBER
5 Assistant United States Attorneys
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6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
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8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
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10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated.
4 Good morning all, good to see you all.
5 My clerk tells me that the sitting arrangements are
6 somewhat different?
7 MR. FALLICK: Your Honor, the table is now vertical
8 rather than horizontal to allow the marshals to bring
9 Mr. Sattar directly to his seat. It's fine, your Honor.
10 THE COURT: Okay.
11 I had a couple of preliminary matters. I got the
12 Government Exhibit list and it would be helpful to me on the
13 exhibit list to list the date that an exhibit is admitted if
14 that is reasonably possible. It would also be helpful to
15 include the list of the defendants' exhibits in evidence.
16 MS. BAKER: As far as the information that appears on
17 the list, we have a data base that currently programs to
18 generate the report in a certain format so I have to ask if it
19 can be reprogrammed to generate a report in the fashion your
20 Honor has just indicated.
21 As far as the defendants' exhibits, we had not been
22 keeping track of those. We would have to try to go back and
23 recreate that information or we would request that the defense
24 perhaps could supply us with the information.
25 THE COURT: Do the defendants want to give a running
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1 exhibit list in evidence?
2 MR. TIGAR: Yes, your Honor. We want to and we will.
3 THE COURT: Fine.
4 That brings me to the next issue. On LS14 and 15,
5 pages 1 and 2 were offered and in our preliminary colloquy
6 outside the jury's presence, there was a dispute with respect
7 to the third page and I said I would reserve on the third page.
8 The only objection to the third page, as I recall it, was
9 hearsay.
10 MR. DEMBER: Your Honor, I don't have the exhibit in
11 front of me.
12 Your Honor, just for the record, the third page is
13 apparently a letter dictated by Abdel Rahman to his four
14 attorneys, including Ms. Stewart, and I believe our objection
15 was that it is full of hearsay. That is correct, your Honor.
16 THE COURT: And some of it is hearsay, most of it is
17 not.
18 MR. DEMBER: Some is hearsay.
19 THE COURT: And most is not.
20 Most can't reasonably be taken for the truth but,
21 rather, a request to the attorneys that certain things be done
22 or --
23 MR. DEMBER: That is true, your Honor.
24 THE COURT: -- or an indication of either not for the
25 truth or 80 --
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1 MR. DEMBER: That is true, your Honor. There is one
2 sentence that jumps out at me is Mr. Abdel Rahman saying that
3 "prisoners are treated like monsters." That is clearly
4 hearsay.
5 THE COURT: Absolutely. The things that jump out at
6 me as plainly hearsay are "prisoners are treated as monsters"
7 and the next paragraph which says, "I am privy of a newspaper
8 article about me that was intercepted by Ms. Cuomo. I was not
9 allowed to read it and I urge you to take appropriate action to
10 deal with such behavior."
11 That paragraph also appears to be statements of fact
12 rather than state of mind, but with the exception of those two
13 the rest of the memo does not appear to be hearsay, unless I am
14 missing something.
15 MR. DEMBER: I would agree with that, your Honor.
16 THE COURT: So if the defense wishes to admit that
17 letter as the third page of the exhibits with those
18 redactions --
19 MR. TIGAR: Yes, your Honor, we will withdraw our
20 request for admission of the entirety of page 3 of LS14 and 15.
21 We will make the redactions indicated by your Honor's colloquy
22 with Mr. Dember and re-present these exhibits.
23 THE COURT: Okay.
24 Next is Government Exhibits 203T and 211T, and the
25 government wants to read portions of them, and what is the
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1 defendants' position?
2 MR. TIGAR: Our position, your Honor, is as before,
3 the relevance so far as Ms. Stewart is concerned of these
4 sermons, speeches, conversations, is that she was present at
5 Sheikh Abdel Rahman's trial and heard them and the effect on
6 her of these things was based on the entirety of each such
7 document and it was context that was indeed the focus of her
8 defense of her client.
9 THE COURT: All right. So defendants' position is
10 that they don't want 203T and 211T redacted, either read the
11 whole thing or read it not at all with the option of referring
12 to it in summation.
13 MR. TIGAR: Yes, of course, your Honor. In summation
14 Rule 106 or whatever doesn't apply. We get to argue.
15 THE COURT: I agree with that.
16 The government seeks to offer portions of Exhibits
17 203T and 211T. The government alleges that the remainder of
18 the transcripts are unnecessary for completeness. The
19 defendants object. I agree that the transcripts should be read
20 in their entirety if they are to be read.
21 The defendants agree that the government could choose
22 not to read the transcripts in evidence but to refer to them in
23 summation if the government is concerned with unnecessarily
24 wasting the jury's time. However, if portions of the documents
25 are to be read, then the full transcript should be read to
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1 place the passages in context. The individual passages sought
2 to be read appear starker when read alone rather than in the
3 context in which they appeared.
4 Moreover, it is of some significance that the entire
5 text of both exhibits were in fact read to the jury in the
6 Rahman trial and, thus, it would appear that this very issue
7 was resolved in favor of completeness at the Rahman trial.
8 In any event, one of the reasons for admitting the
9 exhibits is for its effect on defendant Stewart's state of mind
10 and defendant Stewart's state of mind is measured by listening
11 to the entire speech which was read at the Rahman trial.
12 Therefore, the exhibits should be read in their entirety or not
13 read with leave to refer to any portions in summations.
14 The next open issue was the issue of additional
15 exhibits and I will deal with those at the end of the day, or
16 at least start to deal with those at the end of the day, I
17 hope. I should point out that I really need -- and I will
18 listen to argument on each of the exhibits, but I really need a
19 copy of the actual Government Exhibit 2008, because it appears
20 to include some photograph and the translation I have is just a
21 translation. It doesn't include any photograph.
22 One of the other early documents is -- or not so
23 early -- 2054, and going over my set I don't appear to have
24 2054 and, as I said, I really would only be in a position to
25 begin to go over that list of documents today, which leads to
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1 another preliminary observation.
2 The government asked that I begin to rule on those
3 exhibits now, so all right. But the reason provided is that
4 there may be a half a day or a full day this week for which
5 there is no scheduled or projected evidence and I understand
6 order of proof and the desire to ask me to rule. At the same
7 time, the letter raised at least a concern in my mind about how
8 finally the schedule is being cut because it's plain that the
9 government has an obligation to assure that there are
10 sufficient witnesses and evidence so that there is no down time
11 for the jury, and unexpected things happen. Witnesses are
12 finished up more quickly because expectations with respect to
13 direct and cross may not pan out. Unforeseen events occur,
14 like a witness may become ill or unavailable and there have to
15 be contingency plans so we don't end up at the end of the day
16 with time for the jury or towards the end of the week. And so
17 I bring that to your attention.
18 The total number of documents on this list as it is
19 now is I think 17 and it's sort of hard to think that the
20 scheduling of 17 documents, even though some of them may take
21 some time to read if they are admitted, that that should be the
22 driving force behind the schedule this week.
23 MS. BAKER: Your Honor, I just wanted to make you
24 aware of a key fact that is affecting our scheduling
25 difficulties that is going to be resolved next week, but this
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1 will put this in a little more context for the court.
2 As the court is aware, a significant portion of the
3 government's evidence in this case is the recorded telephone
4 calls and there is a witness whose testimony is necessary to
5 introduce the recordings of the telephone calls into evidence.
6 He is an FBI witness who was involved in making the trial DVDs
7 and therefore his testimony would be necessary to authenticate
8 those DVDs. And when the trial sort of at the last minute was
9 adjourned for 3 weeks or so in light of Abdel Rahman's desire
10 to litigate his privilege, we ran into a scheduling difficulty
11 because that particular witness had had very long-standing
12 plans to get married and be on his honeymoon for two weeks and
13 he is currently on the second week of his honeymoon.
14 So the government is not able to finish authenticating
15 the trial DVDs and introduce them into evidence and begin
16 presenting the recorded telephone call portion of its case
17 until that witness is back next week. So that is the reason
18 why we have had to do some adjusting of the scheduling of the
19 witnesses and front load at the beginning of the trial some of
20 the other types of evidence. But we are doing everything we
21 can to insure that all of the jury's time will be productively
22 utilized through the rest of this week and until we get that
23 witness on the stand and then shift to that portion of the
24 presentation of our case.
25 As to the documents that we have asked your Honor to
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1 review, 17 is a good number. It's not a very large number but
2 obviously we have seen now from the reading of some of the
3 Abdel Rahman speeches and in light of the ruling that your
4 Honor just rendered that a couple of the additional speeches
5 also need to be read in their entireties, obviously it does
6 take a little bit of time to present those speeches by reading
7 them. So if your Honor does begin ruling on those Sattar
8 search exhibits, we believe that between the combination of
9 currently scheduled witnesses and the speeches that are already
10 in evidence and those Sattar search exhibits, that we will have
11 the week filled as far as the use of the jury's time.
12 THE COURT: All right.
13 I read obviously the other correspondence over the
14 weekend but I don't think that there are any other issues for
15 me to decide at this point.
16 MR. TIGAR: Your Honor, yesterday we had sent to the
17 court a 4-page letter concerning the testimony of the Scotland
18 Yard inspectors and it's unclear to me exactly which exhibits
19 the government seeks to offer through these people.
20 My concern is this: None of these people knows Ms.
21 Stewart. They executed a search warrant under the Terrorism
22 Act on premises in west London. Just the fact that they appear
23 and would cite that they did that has a prejudicial overtone
24 because in fact the offenses that they were investigating to
25 the extent they are felonies had nothing to do with these
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1 defendants. There was a misdemeanor under the Public Order Act
2 which was directed at the Taha book as published.
3 As I said in my letter, if this is simply a question
4 of wanting to put in Mr. al-Sirri's telephone call records, the
5 prejudicial effect of a full dress Scotland Yard search as the
6 means of doing that seems to us to be unfairly prejudicial and
7 time wasting.
8 Moreover, to the extent these witnesses are called to
9 authenticate or do something about the Taha book, we have made
10 our legal position clear and if and when it's offered, then
11 that will be I guess the moment for the court to rule. But I
12 would like some guidance from the court because I don't want to
13 be standing up and objecting and drawing attention to our end
14 of the table about a matter that in our respectful view has
15 very little to do with us or, indeed, with anybody here except
16 for the calls the government is going to play later.
17 MR. BARKOW: Your Honor, the first witness who we plan
18 on calling from Scotland Yard's testimony will be about 15
19 minutes long I think. So it's certainly not a waste of time.
20 The exhibits that we intend to offer through that particular
21 witness are basically some diagrams of the search, just
22 sketches to show the layout so the jury can situate themselves
23 and understand what the apartment looked like, some phone bills
24 that were recovered at the premises which will serve two
25 purposes, one to show whose apartment it was, the name, the
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1 address, and also the telephone numbers on the bills
2 themselves. And we will also eventually corroborate the
3 telephone calls between the resident of that apartment, Yasser
4 al-Sirri, and Mr. Sattar.
5 And then the next exhibit we intend to offer is a
6 published copy of the Taha book because the person whose
7 apartment it was, Yasser al-Sirri, is the publisher of the Taha
8 book. He is the operator of the Islamic Observation Center,
9 which is the publisher of the book as it says on the inside
10 cover of the book.
11 And so, first of all, the testimony is brief.
12 Second of all, the book itself is a statement by Taha.
13 It's his book. There are discussions about the book between
14 Taha and Sattar on intercepted telephone conversations about
15 al-Sirri shipping copies of the book to Sattar. Ultimately the
16 evidence at trial will be that there are two versions of this
17 book. The first was an earlier unpublished version found on
18 Mr. Sattar's computer. The second is this published book which
19 was ultimately published by the Islamic Observation Center
20 operated by al-Sirri. And the evidence will show that these
21 two books when translated are the same book because the
22 deviations between the two versions are minimal and so it will
23 become clear that they are earlier and subsequent versions of
24 the same thing.
25 The book itself is, as I said, a statement by Taha,
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1 who as the court knows is a co-conspirator in the case and a
2 central figure in the case, and in the published version of the
3 book Taha does several things. First, he justifies the killing
4 of tourists when they come to Egypt under his view of Islamic
5 law. He says basically that -- and I am paraphrasing, but
6 essentially that tourists are not subject to the protection of
7 Islamic law as would ordinary visitors to Egypt, and so he
8 explains why that is true under his version of Islamic law. He
9 justifies the killing of Egyptian government and military
10 personnel again under Islamic law. He dedicates his book to
11 Abdel Rahman and in the beginning of his book he essentially
12 applauds the Luxor incident and those who carried it out.
13 I can quote from the draft translation if the court
14 would like but in substance those are some of the central
15 themes and central statements in the Taha book. And so that
16 book is a statement by Taha which contains those various
17 aspects and therefore we believe is highly relevant to the
18 charges in the case and satisfies Rule 403. Furthermore,
19 al-Sirri is a co-conspirator in this case. He was a named
20 defendant in the first indictment. He is not now, but he is a
21 co-conspirator in the various conspiracies. He is still under
22 indictment in this court in fact.
23 And he discusses the book with Sattar on the telephone
24 and so in addition to the fact that it's a statement by Taha,
25 it's also going to be offered to amplify and explain the
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1 references and the conversations about the book in the
2 telephone calls because the participants -- that is, al-Sirri
3 and Mr. Sattar -- clearly have knowledge and understanding of
4 what the book is based on their conversations. They talk about
5 it as if it is a book they know about. They don't go through
6 and read it but it's clear from the context and the statements
7 that they know what they are talking about and they are aware
8 of the book and what it says.
9 MR. TIGAR: First, your Honor, on the diskettes seized
10 from Mr. Sattar's home, which have been identified here as
11 SW-9, there were excerpts from portions of what the government
12 has told us is a book by Mr. Taha. We have written the court a
13 sealed letter with respect to the CD ROM or DVD on which those
14 diskettes were copied by the FBI and furnished to us. That was
15 dated the 24th of May. Sufficient unto the day as the
16 admissibility problem of that issue.
17 That version in Mr. Sattar's house, however, did not
18 contain the introduction which is in the book as published.
19 The introduction in the book as published is dedicated to 12
20 people. The first is to Omar Abdel Rahman, a scholar of
21 something or other; that is, it's not my comrade or anything.
22 And then there are a bunch of other dedications. The book,
23 which as my letter recites has an ISBN number, was published
24 and those details are furnished and, as I say, I have done a
25 lot of research about this.
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1 We, therefore, run into this problem that identify in
2 the motion which is the Noto problem, a book which justifies
3 this, that or the other thing in the name of the Koran and
4 discusses Koranic lore with respect to it and which was
5 published and which anybody could buy is hardly characterizable
6 as in furtherance of a conspiracy. Perhaps it is in
7 furtherance of some illegal activity of Taha but as our
8 citation of Noto indicates, it's problematic with respect to
9 these defendants. Moreover, the telephone call last Thursday
10 that the government read had the sheikh telling his caller that
11 tourists are indeed entitled to the protection of the Koran for
12 whatever that is worth.
13 So this -- I don't mean to interrupt the court. We
14 made our arguments and here they come, your Honor. I will rest
15 on what I said in the letter.
16 THE COURT: You know, the resolution of this issue is
17 clear to me. First of all, there is nothing impermissible
18 about having a Scotland Yard detective or officer testify that
19 a search was conducted and certain matters were seized, some of
20 which appear not to be disputed as to their relevance and
21 admissibility in the case, namely, the phone bills. And this
22 is not, given the length of the testimony, a waste of time.
23 It's not a 403 problem. And it's not an issue that reasonably
24 I should require the parties to stipulate about. It doesn't
25 fall on the all chief line of requiring a stipulation. The
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1 jury is entitled to some evidentiary detail if the parties
2 don't wish to stipulate about it.
3 There is one 403 issue out of all of the arguments
4 that exists. And that is whether the detectives would testify
5 as to the national security or other specific authorization
6 that they have, which is, again, the problem of bootstrapping.
7 MR. BARKOW: Your Honor, he was not going to. He was
8 going to say only that he received a Schedule 7 warrant. I
9 think that that is part of the Terrorism Act but I don't
10 anticipate he was even going to talk about that and I will
11 specifically instruct him not to before he testifies.
12 THE COURT: Fine. "A warrant" would be sufficient.
13 MR. BARKOW: Okay. So he should not say Schedule 7
14 either. I think as opposed to a search warrant he refers to it
15 as a Schedule 7 warrant but I can tell him just to call it a
16 warrant.
17 THE COURT: "A warrant."
18 MR. BARKOW: Okay.
19 And he is going to say or he was going to say where he
20 works, which is the anti-terrorist branch at New Scotland Yard
21 but he doesn't even know actually the larger context of the
22 investigation for this search. He just did the search. He was
23 the evidence recovery officer. So I don't think this witness
24 is going to get into those areas and, in fact, I don't think
25 any of the Scotland Yard witnesses are going to. This does
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1 raise, if I may, one 403 issue that the government would seek
2 to preclude cross examination on and that is raised by Mr.
3 Tigar's letter, his discussion about the dismissal --
4 THE COURT: Let me finish though.
5 MR. BARKOW: Okay.
6 THE COURT: It's sufficient for him to say he works at
7 Scotland Yard.
8 MR. BARKOW: Okay. I will just need to talk to him
9 and instruct him.
10 THE COURT: Second, there has been argument back and
11 forth with respect to the Taha book and its admissibility. I
12 am not going to rule now on the admissibility of the Taha book
13 and so it's sufficient to identify it as an object seized in
14 the search because the reasons for which it is offered and the
15 parties against which it is offered may require some limiting
16 instruction and so I have to know specifically against whom
17 it's offered and what the theory is and whether any of the
18 parties seek any limiting instruction with respect to the book,
19 a matter that I can't simply do if the Taha book is identified
20 and then the government says we offer it and that will provoke
21 a request for a conference in any event.
22 MR. BARKOW: Your Honor, just so I don't run afoul of
23 what the court is saying, this book is in Arabic and on the
24 inside cover page there are a few words in English, including
25 the name of the author and the name of the publisher and the
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1 telephone and fax number of the publisher. And so I was
2 hoping -- I was going to offer the book but. The rest of it is
3 in Arabic and then there is a transliterated title I guess but
4 it's still in Arabic.
5 THE COURT: What is the name of the book?
6 MR. BARKOW: It's wrapped in plastic, your Honor.
7 Amayett -- I know the translation.
8 THE COURT: In English.
9 MR. BARKOW: It's "Lifting the veil off of some of the
10 rules of the highest principles of Islam." But that doesn't
11 appear in English in the book anyway and it's not very
12 inflammatory even if it did.
13 THE COURT: That is right. That identification is not
14 is not a problem.
15 MR. BARKOW: That won't even be the testimony, your
16 Honor, because that isn't in English in the book. So what I
17 wanted to do is just point out the author, the publisher, and
18 the phone and fax of the publisher so that at least the jury
19 understands what it is. The rest of the characters are Arabic
20 or transliterated Arabic words.
21 MR. TIGAR: Your Honor, I object to naming the author.
22 It's hearsay. We do not concede that this book was written by
23 Mr. Taha, the conspirator that is charged in this indictment.
24 We don't concede it. And the monkey business that we pointed
25 out in our letter of May 24th is just one indication of why we
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1 don't.
2 THE COURT: All right. It's sufficient just to
3 identify it by exhibit number. There are cases about names not
4 being hearsay when they appear on various matters but it is
5 sufficient that a book was seized, Government Exhibit so and
6 so, and indeed the title.
7 MR. BARKOW: Your Honor, the title -- I am not going
8 to ask the title because the title is in Arabic.
9 THE COURT: Okay.
10 MR. BARKOW: But what I do want to ask is just to have
11 him point out --
12 THE COURT: There is an identification number inside
13 the book, right, an IG number?
14 MR. BARKOW: I assume there is, although it's on the
15 same page I think as the author's name. Your Honor, ultimately
16 the name of the author is going to be admissible if the book is
17 admissible in any way. And so I think showing the jury now so
18 they understand what the witness is talking about in some
19 concrete way other than an ISBN number, which I never would
20 have asked before the jury ever because I think that would be
21 meaningless to them, I think is proper.
22 THE COURT: I will wait until the book is in and until
23 I rule on the admissibility of the book. It's not very hard
24 for the jury to comprehend that a book was seized and it's
25 government identification number -- the government
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1 identification number thus and so, and if you don't want the IG
2 number I am not going to require you to give the IG number.
3 There is no objection to the IG number.
4 MR. BARKOW: I will think about that.
5 MR. TIGAR: I think it's an ISBN number.
6 THE COURT: Whatever.
7 MR. BARKOW: May I do that with covering it with my
8 hand because I -- this is a real book so just covering with my
9 hand the name of the author then, I guess, because this is a
10 real book. I don't have --
11 THE COURT: You are going to give it to the witness.
12 MR. BARKOW: I guess I won't put it on the screen
13 then.
14 Can I ask him the name of the publisher and the
15 telephone and fax number of the publisher?
16 MR. TIGAR: Yes, your Honor, we consent to that.
17 Because of certain legal requirements to get an ISBN number and
18 because the Islamic Observation Center is a business, we think
19 that is clearly admissible.
20 MR. BARKOW: That points out the fallacy of the
21 argument with respect to the author, but I will stick right now
22 with the publisher and the fax number.
23 THE COURT: Okay. Now you are going to raise the 403
23
24 issue with respect to cross examination of the witness with
24
25 respect to what happened to Mr. al-Sirri?
25 (Continued on next page)
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1 (In open court; jury not present)
2 MR. BARKOW: Yes, your Honor, in his letter of
3 July 5th.
4 THE COURT: Hold on.
5 MR. TIGAR: If the door is not open, I will not try to
6 walk through it. If I believe the door has been opened, I will
7 make some appropriate remark to try to get the issue resolved
8 out of the site and hearing of the jurors.
9 THE COURT: Because there obviously would be lots of
10 questions raised by that cross-examination.
11 MR. TIGAR: Yes, your Honor. I try not to -- I won't
12 go further than that. I was raising those factual matters
13 because I think they're relevant to the eventual ruling on
14 that.
15 THE COURT: Okay. All right. Let's take two minutes
16 and then bring the jury in. Are there -- after Mr. -- this is
17 Mr. Elliott?
18 MR. BARKOW: No, the first witness is Detective
19 Constable Sloper, who's the Scotland Yard witness, and then
20 Mr. Elliott.
21 THE COURT: Okay. All right.
22 (Recess)
23 THE COURT: Let's bring in the jury. If you could
24 have the first witness, Mr. Barkow.
25 MR. BARKOW: Yes, Sir.
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476LSAT2
1 THE COURT: If the first witness would take the stand.
2 MR. BARKOW: Your Honor, may I publish the cover which
3 is all in Arabic just so they can recognize it?
4 THE COURT: Show it to the defense.
5 MR. BARKOW: This is the cover.
6 MR. TIGAR: We object to showing the jury exhibits
7 that aren't in evidence.
8 THE COURT: That's a fair point.
9 MR. BARKOW: I can offer it, your Honor, the cover
10 subject to the inside of the book being later admitted?
11 MR. TIGAR: If that's a serious motion, may I have a
12 moment, your Honor?
13 THE COURT: Yes.
14 (Off the record)
15 MR. TIGAR: The Arabic writing in the upper corner is
16 Mr. Taha's name, so we maintain our objection.
17 THE COURT: All right. Don't show the cover.
18 (Continued on next page)
19
20
21
22
23
24
25
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476LSAT2
1 (In open court)
2 (Jury enters the courtroom)
3 THE COURT: Good morning, ladies and gentlemen.
4 JURORS: Good morning.
5 THE COURT: It's good to see you all. Again, ladies
6 and gentlemen, I appreciate your being here promptly. I
7 appreciate your indulgence. I do try to take care of legal
8 issues before you have to come out in the morning or at
9 lunchtime, and so if there appears to be a delay, I really
10 appreciate your indulgence, and I will try to finish things
11 more quickly in the morning or bring the parties in earlier so
12 that we don't lose any of your time.
13 So I appreciate your indulgence, all right?
14 The government may call its next witness.
15 MR. BARKOW: Your Honor, the government calls
16 Detective Constable Paul Sloper.
17 (Witness sworn)
18 DEPUTY CLERK: Please state and spell your full name
19 slowly for the record.
20 THE WITNESS: Paul Sloper, S-l-o-p-e-r.
21 DEPUTY CLERK: Spell your first name.
22 THE WITNESS: Paul, P-a-u-l.
23 DEPUTY CLERK: Thank you.
24 THE COURT: Mr. Barkow, you may examine.
25 MR. BARKOW: Thank you, your Honor.
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476LSAT2
1 PAUL SLOPER,
2 called as a witness by the Government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. BARKOW:
6 Q. Good morning.
7 A. Good morning.
8 Q. Could you please speak loudly and pull the microphone in
9 front of you up to your mouth?
10 Where do you work?
11 A. I'm a detective constable in New Scotland Yard in London.
12 Q. What is a detective constable?
13 A. It's a detective rank who's responsible for the
14 investigation of major crimes.
15 Q. What is New Scotland Yard?
16 A. New Scotland Yard is the headquarters of the Metropolitan
17 Police in London.
18 Q. And what is the -- and please keep your voice up and speak
19 loudly into the microphone.
20 A. Yes.
21 Q. What is the Metropolitan Police in London?
22 A. The Metropolitan Police has responsibility for the policing
23 of the large, greater London area.
24 Q. And what is your assignment at New Scotland Yard? Where
25 are you assigned within New Scotland Yard?
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476LSAT2 Sloper - direct
1 A. Assigned specialist operations at New Scotland Yard.
2 Q. How long have you been with Scotland Yard?
3 A. 29 years service in the police service; and 14 years at
4 specialist operations.
5 Q. Before you were in specialist operations, what did you do?
6 A. Held a number of positions dealing with major crime in one
7 of the local areas. I was on the serious crimes branch dealing
8 with national and international credit card fraud. And I was
9 also on the regional crime squad which was responsible for
10 cross border and organized crime issues.
11 Q. And in general terms, what do you do in specialist
12 operations?
13 A. I'm part of the forensic examination team.
14 Q. What does that mean?
15 A. I have responsibility for the management and examination of
16 all matters forensic in relation to inquiries.
17 Q. What do you mean by all matters forensic?
18 A. If we have to deal with scenes, searches of people's
19 premises, their vehicles, whether or not we have established
20 the presence of finds, areas of hides, then I would have
21 responsibility for the forensic examination of those areas.
22 Q. Now, during your time with Scotland Yard, have you
23 conducted searches?
24 A. Yes, I have.
25 Q. Approximately how many?
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476LSAT2 Sloper - direct
1 A. It would be in the hundreds.
2 Q. And incidentally, Scotland Yard is in London?
3 A. It is, yes.
4 Q. Why is it called Scotland Yard?
5 A. When the Metropolitan Police was established 175 years ago,
6 the first headquarters were in an area which was known as
7 Scotland Yard. As it grew in size and establishment, it moved
8 to larger premises on the north side of The River Thames, which
9 is called Great Scotland Yard. And as it grew even larger, it
10 grew to its present premises in Broadway, London. It's now
11 called New Scotland Yard.
12 Q. Detective Constable Sloper, I want to direct your attention
13 to October 23rd, 2001. Did you conduct a search on that date?
14 A. Yes, I did.
15 Q. And where was that search conducted?
16 A. It was Flat 102 Edinburgh House, 155 Maida Vale, London,
17 West 9.
18 Q. What is a flat?
19 A. A flat can be either one-, two- or three-bedroom premises,
20 either on a single floor or on two floors -- mainly on two
21 floors -- within a large block.
22 Q. And is it essentially an apartment?
23 A. Yes.
24 Q. Whose residence was this?
25 A. A Mr. Yasser Alsiri.
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476LSAT2 Sloper - direct
1 Q. And did you or other members of Scotland Yard obtain a
2 search warrant prior to this search?
3 A. That is correct, yes.
4 Q. And from whom was it obtained?
5 A. It was obtained from the stipendary magistrate at Bow
6 Street Magistrate.
7 Q. What type of magistrate?
8 A. Spidendary magistrate.
9 Q. Do you how to spell that?
10 A. S-t-i-p-e-n-d-a-r-y.
11 Q. That's a judge in Britain?
12 A. He's responsible for jurisdiction in the lower courts.
13 Q. In what geographical area?
14 A. Central London.
15 Q. In this search, what was your role?
16 A. I was responsible for the search and seizure of articles
17 within the premises.
18 Q. And aside from your role in this particular search that I'm
19 going to ask you about, have you had any role or connection to
20 this case?
21 A. None whatsoever, no.
22 Q. Can you describe generally what the building and the flat
23 or the apartment looked like?
24 A. It was a high rise block of flats, the number of floors on
25 it, I can't remember, but this building, 102, was on, I think,
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476LSAT2 Sloper - direct
1 the 14th floor of this block, and it consisted of a number of
2 rooms over two levels.
3 MR. BARKOW: I'm now going to place before the witness
4 only what I've marked for identification and previously
5 provided to counsel as Government Exhibit 3554D.
6 Q. Can you take a look at that? Do you recognize it?
7 A. I do, yes.
8 Q. What is it?
9 A. It's a diagram that I drew in relation to the premises.
10 Q. And this diagram, when did you draw it?
11 A. When I went into the premises, immediately after the arrest
12 of Mr. Alsiri.
13 Q. Does this sketch accurate and fairly depict the layout of
14 the apartment, that flat?
15 A. It depicts the layout. It's not to scale.
16 Q. Is it accurate as to the location of the rooms relative to
17 each other?
18 A. It is, yes.
19 MR. BARKOW: Your Honor, the government offers
20 Exhibit 3554D.
21 MR. TIGAR: No objection.
22 THE COURT: Government Exhibit 3554D received in
23 evidence.
24 (Government's Exhibit 3554D received in evidence)
25 MR. BARKOW: May we publish the exhibit, your Honor?
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476LSAT2 Sloper - direct
1 THE COURT: Yes.
2 BY MR. BARKOW:
3 Q. Detective Constable Sloper, would you please explain
4 generally the layout of the flat using Exhibit 3554D?
5 A. Okay. The main entrance of the flat is at Room 3, which is
6 a hallway. The living room, Room 1, which consisted of a
7 living room plus office paraphernalia, a fax machine. Room 2
8 was the kitchen to the premises. Then up the flight of stairs
9 as you can see here to the second floor, oversee the landing at
10 4, consisted of a number of small cupboards off of that
11 landing. The main bedroom was at 5. The children's bedroom
12 was at 6. The rest room was at 7. The third bedroom was at 8.
13 And another cupboard marked there.
14 Q. Now I'd like to place before the witness only Government
15 Exhibit 3554B. I'm showing you what I've marked for
16 identification as 3554B. Can you take a look at that and tell
17 me if you recognize it?
18 A. That's my diagram I drew of Room 1 within those premises.
19 Q. When did you do this diagram?
20 A. At the time of the search.
21 Q. And does this diagram fairly and accurately depict the
22 layout and the -- some of the contents of Room 1?
23 A. It does, yes.
24 Q. Is this diagram to scale?
25 A. No, it is not.
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476LSAT2 Sloper - direct
1 MR. BARKOW: Your Honor, the government offers 3554B.
2 THE COURT: No objection? Very well. Exhibit 3554B
3 is received in evidence.
4 (Government's Exhibit 3554B received in evidence)
5 MR. BARKOW: May I publish it to the jury, your Honor?
6 THE COURT: Yes.
7 BY MR. BARKOW:
8 Q. Taking a look at Exhibit 3554B. Could you first tell us
9 why you diagrammed in particular this room?
10 A. I prioritized this room as the most important room because
11 of the content, and therefore I designated it as Room 1.
12 Q. And could you explain generally what is depicted in this
13 diagram?
14 A. In this diagram is depicted the furnishings and furniture
15 as well as some other items. This is a wall unit, a table.
16 Four-drawer metal cabinet. Another table. A table with the
17 fax machine on it. This was a four-drawer bench. This was the
18 settee.
19 Q. The what?
20 A. Settee, a lounge. Suite, a lounge suite.
21 And these were two other tables. And this was a
22 low-level coffee table.
23 THE COURT: Please keep your voice up.
24 THE WITNESS: Yes.
25 Q. You can pull the microphone maybe a little closer and
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476LSAT2 Sloper - direct
1 direct it more -- there you go.
2 Actually, I'd like to place just before the witness
3 the back of 3554B previously provided to counsel. Can you take
4 a look at that? What is that?
5 A. That's a diagram of the wall unit within Room 1.
6 Q. And did you diagram this?
7 A. I did, yes.
8 Q. Does it fairly and accurately depict the layout of the wall
9 unit in Room 1?
10 A. It does, yes.
11 MR. BARKOW: Your Honor, I offer the back of 3554B.
12 THE COURT: All right. No objection? The back of
13 3554B is received in evidence.
14 (Government's Exhibit 3554B, back side, received in
15 evidence)
16 MR. BARKOW: May we publish it to the jury, your
17 Honor?
18 THE COURT: Yes.
19 BY MR. BARKOW:
20 Q. And now I'd like to place before the witness only what I've
21 marked for identification and provided to counsel as 3554C.
22 Do you recognize that?
23 A. I do, yes.
24 Q. What is it?
25 A. It is a diagram of Room 5 which was the main bedroom of the
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1 premises on the first floor.
2 Q. And you diagrammed this?
3 A. I did, yes.
4 Q. Does it fairly and accurately depict the layout and some of
5 the contents of Room 5?
6 A. It does, yes.
7 Q. Is it to scale?
8 A. No, it's not.
9 MR. BARKOW: Your Honor, the government offers 3554C.
10 THE COURT: All right. No objection? Government
11 Exhibit 3554C received in evidence.
12 (Government's Exhibit 3554C received in evidence)
13 MR. BARKOW: May we publish it, your Honor?
14 THE COURT: Yes.
15 BY MR. BARKOW:
16 Q. Detective Constable Sloper, why did you diagram
17 specifically Room 5?
18 A. It was the bedroom that was used by Mr. Alsiri and his
19 wife.
20 Q. Can you just generally describe briefly what this diagram
21 3554C depicts?
22 A. Yes. The large square there is a double bed. And 1 and 2
23 designate two wardrobes. That is a chest of drawers on which
24 five drawers -- on which the TV stood. This small area here
25 was a walk-in wardrobe.
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476LSAT2 Sloper - direct
1 Q. Now, could you describe generally how you conducted this
2 search?
3 A. Having prioritized the rooms that I felt that would best --
4 the best evidence would be recovered, I conducted a search
5 alone. Having dealt with some forensic issues, I then went on
6 to search and seize the items and package those items.
7 MR. BARKOW: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. I'm showing you what I've marked for identification
10 previously provided Government Exhibit 2701. Could you please
11 take a look, flipping through those pages, and look up when
12 you're done.
13 Do you recognize Government Exhibit 2701?
14 A. I do, yes.
15 Q. What is it?
16 A. There are a series of telephone itemized billings that were
17 recovered from on top of or within the furnishings within
18 Room 1 at 102 Edinburgh House.
19 Q. Who recovered these?
20 A. I did.
21 Q. Is exhibit 2701 you're holding in your hand, are those the
22 originals or are those copies of what you recovered?
23 A. No, these are copies.
24 Q. And do these copies fairly and accurately -- are they fair
25 and accurate copies of the original as you record them and as
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476LSAT2 Sloper - direct
1 they appeared at the time you recovered them?
2 A. They are, yes.
3 Q. There are some cover sheets in there as well. Were those
4 found -- bearing your name. Were those found during the search
5 or did you insert those?
6 A. No, these are documents which are generated by our computer
7 relating to the exhibit that we're dealing with.
8 Q. And those just to identify -- to give identifying numbers
9 to the things you found?
10 A. Yes, they are.
11 MR. BARKOW: Your Honor, the government offers 2701.
12 THE COURT: All right. No objection? Government
13 Exhibit 2701 received in evidence.
14 (Government's Exhibit 2701 received in evidence)
15 MR. BARKOW: And your Honor, I'd like to publish
16 certain pages of it using the overhead here.
17 THE COURT: All right.
18 BY MR. BARKOW:
19 Q. I'll place before you and before the -- I'm showing you a
20 page here which appears to be a bill for a period in October
21 and November of 2000. Can you tell us, do you see where it
22 identifies the name and address of the bill recipient?
23 A. That's right in the upper left-hand corner.
24 Q. Can you please read that for us?
25 A. Yasser Alsiri, 102 Edinburgh House, 155 Maida Vale, London,
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 U.K., West 9, 1QT.
2 Q. Do you see on the bottom where there is a phone number
3 listed?
4 A. Yes, that's correct.
5 Q. Read that to us.
6 A. 02073288988.
7 Q. Now I'm just going to direct your attention to a few others
8 of these. Can you see on the top where it lists the name and
9 address?
10 A. Top left-hand side, yes.
11 Q. Is that again for Yasser Alsiri at the -- at the same
12 address?
13 A. It is, yes.
14 Q. And directing your attention to the center of the bill, do
15 you see a telephone number listed?
16 A. I do yes.
17 Q. Could you read that to us?
18 A. 01716246868.
19 Q. Just another here. This is for a due date of March 16th of
20 2001; is that correct?
21 A. That's correct yes.
22 Q. And here, just to be clear, March 16th, 2001, in the U.K.,
23 the month is listed second?
24 A. That is correct.
25 Q. Could you tell us the name and address of the bill
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 recipient?
2 A. Mr. Yasser Alsiri, 102 Edinburgh House, 155 Maida Vale,
3 London, W9, 1QT.
4 Q. Telephone number for this?
5 A. This is a bill.
6 Q. Do you see in the middle there?
7 A. 02076246868.
8 Q. Now, Detective Constable Sloper, before your testimony
9 today, did you review in its entirety Government Exhibit 2701?
10 A. Yes, I did.
11 Q. And did your review -- during the review, did you learn or
12 see for whom these were bills and for what --
13 A. I have, yes.
14 Q. Could you explain what you saw?
15 A. Where the names appears on each of the documents, with the
16 exception of one, they are in the name of Yasser Alsiri.
17 Q. And what about the address?
18 A. The address is the same.
19 Q. For all of them?
20 A. For all of them.
21 MR. BARKOW: May I approach, your Honor?
22 THE COURT: Yes.
23 Q. Detective Constable Sloper, I've placed before you what
24 I've marked for identification and previously shown to counsel
25 as Government Exhibit 2700. Would you take a look at that?
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 Do you recognize that?
2 A. Yes, I do.
3 Q. What is that?
4 A. This is a Islamic book in Arabic script.
5 Q. Where do you recognize this from? Where have you seen it
6 before?
7 A. I recovered it from 102 Edinburgh House.
8 Q. Could you explain generally the circumstances of that
9 recovery, where and how you found it?
10 A. It was found to the left-hand side of a wall unit in
11 Room 3, the hallway area. It was shrink-wrapped with a number
12 of other of these books. I cut the shrink wrap and seized this
13 particular item, and left the other items in place.
14 Q. Were there other similar items there?
15 A. There were. There were 24 copies of this book.
16 Q. 24 of the same book?
17 A. Yes.
18 Q. And how were the others wrapped, if at all?
19 A. They were in shrink wrap.
20 Q. All 24 of them?
21 A. All 24 were shrink-wrapped together. I cut the shrink wrap
22 and removed one of those books.
23 Q. And is this book, 2700, Government Exhibit 2700, in the
24 same condition as it was at the time that you seized it?
25 A. It is, yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 Q. I'd like to put before you Government Exhibit 3554D, which
2 has already been admitted into evidence. Could you please
3 indicate on this 3554D exhibit where that book was recovered
4 and where you saw the 24 copies of this book?
5 A. Just there (indicating).
6 Q. Can you please remove the book from the plastic bag -- and
7 actually, before you do so, can you explain why it's in a
8 plastic bag?
9 A. To maintain the integrity and continuity of the exhibit
10 from its seizure to its completion.
11 Q. Who put it in the bag?
12 A. I did.
13 Q. And is the bag currently sealed?
14 A. Yes, it is.
15 Q. Has it been unsealed since you put it in there?
16 A. It has been unsealed on two occasions, yes.
17 Q. And was it resealed?
18 A. It has been yes.
19 Q. And how do you know this?
20 A. Because there appears a signature seal on either side
21 bearing the signature of the person who opened it.
22 Q. Can you please break that seal and take the book out of the
23 package?
24 MR. BARKOW: May I approach, your Honor?
25 THE COURT: Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 Q. Keep your voice up, please, even though I'm here.
2 Can you look inside the -- inside the first page and
3 tell us whether you see an ISBN indication with a number after
4 it?
5 A. There is, yes.
6 Q. Could you please read that into the record?
7 A. ISBN 1-903730-01-5.
8 Q. And do you see an indication of who the publisher was of
9 this book?
10 A. Yes, there is.
11 Q. Could you tell us who that was?
12 A. Islamic Observation Center, PO Box 13575, London, W9, 1FG,
13 U.K.
14 Q. And do you see a telephone number and a fax number listed
15 for that publisher?
16 A. There are, yes.
17 Q. And by comparison to Government Exhibit 2701, can you tell
18 us how the telephone number and the fax number compare to those
19 that are in Government Exhibit 2701?
20 A. 2701 and in the insert in the book, the telephone number,
21 0207328989, corresponds to the fax number within the front page
22 of the book.
23 Q. I think you said 8989.
24 A. 8988, sorry.
25 Q. For the record, you're comparing to the bill I showed you
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 previously for October of 2000; is that correct?
2 A. That is correct, yes.
3 Q. And to show you one more, I'm going to show you a bill that
4 I think I've previously shown you for October 19th of 2000.
5 This is inside of Government Exhibit 2701. Can you take a look
6 at the telephone number for this bill and compare it to the
7 telephone number listed for the publisher in Government Exhibit
8 2700?
9 A. Yes. Government Exhibit 2701, the number is 01716246868,
10 and it is the same number that is in the insert of the book.
11 Q. Just to be clear, Detective Constable Sloper, you still
12 have before you and on the screens Government Exhibit 3554D and
13 you put a blue dot to indicate where this book was recovered
14 and where the other books were observed?
15 A. That is correct.
16 Q. Can you explain orally, verbally, where in this diagram
17 Room 3 that dot appears?
18 A. That dot appears in the left-hand wall -- there's a wall
19 unit which extended virtually the whole of that area. And then
20 crammed down the side of that wall unit between the wall unit
21 and the actual external wall, there were a number of parcels
22 there.
23 Q. And with reference to the diagram, is it correct that the
24 dot signifying where the book was recovered was in the lower
25 left-hand corner of Room 3?
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476LSAT2 Sloper - direct
1 A. That is correct, yes.
2 MR. BARKOW: May I have just a moment, your Honor?
3 THE COURT: Yes.
4 (Off the record)
5 MR. BARKOW: I have nothing further at this time, your
6 Honor.
7 THE COURT: All right.
8 MR. TIGAR: We have no questions, your Honor.
9 THE COURT: No further questions. The witness is
10 excused.
11 THE WITNESS: Thank you.
12 THE COURT: You may step down.
13 The government may call its next witness.
14 MS. BAKER: Your Honor, the government calls Michael
15 Elliott.
16 (Witness sworn)
17 DEPUTY CLERK: Please state your full name; spell your
18 last name slowly for the record.
19 THE WITNESS: Michael T. Elliott, E-l-l-i-o-t-t.
20 DEPUTY CLERK: Thank you.
21 THE WITNESS: You're welcome.
22 THE COURT: Ms. Baker, you may examine.
23 MS. BAKER: Thank you, your Honor.
24 ///
25 ///
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Sloper - direct
1 MICHAEL T. ELLIOTT,
2 called as a witness by the Government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MS. BAKER:
6 Q. Mr. Elliott, I need to caution you in advance, the
7 acoustics in this courtroom are not very good. Make sure that
8 microphone is aimed directly at your mouth and please make an
9 effort to speak loudly and directly into it.
10 Who do you work for?
11 A. Federal Bureau of Investigation.
12 Q. How long have you worked for the FBI?
13 A. A little more than 18 years.
14 Q. What is your current position with the FBI?
15 A. I'm a supervisory special agent.
16 Q. Before you became a supervisory special agent, what
17 position did you hold?
18 A. I was a special agent.
19 Q. As part of the FBI's investigative work, does it sometimes
20 conduct electronic surveillance, with court permission?
21 A. Yes.
22 Q. What does the phrase "electronic surveillance" mean or
23 include?
24 A. It would include intercepting telephone calls, intercepting
25 the conversations of people by placing microphones near or
SOUTHERN DISTRICT REPORTERS, P.C.
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3042
476LSAT2 Elliott - direct
1 about them. And in some cases, it would include cameras, video
2 cameras, to observe things that were going on. And also it
3 would include the interception of fax communications, and also
4 those communications that would be known as
5 computer-to-computer communications like across the Internet.
6 Q. In your last answer, one of the things that you mentioned
7 is the surveillance of telephones. Does that involve the
8 recording of telephone calls?
9 A. Yes. It would include the accessing of the communication,
10 egressing that back to an FBI field office and then recording
11 that intercepted telephone call.
12 Q. What do you mean when you say egressing it back? Just very
13 generally.
14 A. If the communication is in -- bringing the communication
15 back to the FBI office across a telephone line.
16 Q. Now, is the conduct of telephone surveillance or the
17 recording of telephone calls sometimes referred to as "wire
18 tapping"?
19 A. Yes.
20 Q. What is your current title with the FBI?
21 A. I'm an assistant section chief for the electronic
22 surveillance technology section in the FBI's engineering
23 research facility.
24 Q. In that position, do you have responsibilities regarding
25 the recording systems that the FBI uses to record telephone
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Elliott - direct
1 calls with court authorization?
2 A. Yes, I do.
3 Q. In any of your prior positions with the FBI, did you also
4 have responsibilities regarding the recording systems that the
5 FBI uses to record telephone calls with court permission?
6 A. Yes.
7 Q. For how many years in total have you had such
8 responsibilities?
9 A. Approximately eight years.
10 Q. Before I ask you some more questions about those recording
11 systems that the FBI uses to record telephone calls, let me ask
12 you in some more detail about your background and
13 qualifications.
14 What is your college degree?
15 A. Mechanical engineering.
16 Q. And what kind of degree is it?
17 A. Bachelor of science.
18 Q. From what school?
19 A. University of Tennessee.
20 Q. What did you do before you joined the FBI?
21 A. I was a draftsman, machine designer and engineer.
22 Q. For what kind of a company?
23 A. For an electromechanical company that made equipment for
24 the stone industry to make bathroom vanities, kitchen counters.
25 Q. How long did you hold that job?
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476LSAT2 Elliott - direct
1 A. Approximately five or six years.
2 Q. When did you become an FBI agent?
3 A. In June of 1986.
4 Q. And when you first joined the FBI, did you go through the
5 standard training that agents go through?
6 A. Yes.
7 Q. After you completed that standard training, what was your
8 first assignment with the FBI?
9 A. I was assigned to the Minneapolis, Minnesota, FBI field
10 office.
11 Q. What kind of work did you do while you were in the
12 Minneapolis office?
13 A. I worked on a reactive squad which included investigations
14 into kidnappings, extortions, bank robberies, bank fraud,
15 drugstore robberies.
16 Q. When you say a reactive squad, does that refer to
17 responding after crimes had already been committed?
18 A. Yes, it did.
19 Q. Did you have any other assignment while you were in the
20 Minneapolis office?
21 A. I was assigned to the Minneapolis SWAT team.
22 Q. What does SWAT mean?
23 A. Special weapons and tactics.
24 Q. Can you just describe very briefly what that refers to?
25 A. We would assist the rest of the office in the high incident
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476LSAT2 Elliott - direct
1 arrest situations: Where a particular person may have hidden
2 themselves or there was going to be a difficult arrest, we
3 would provide the assistance.
4 Q. And for how long did you remain in the Minneapolis office
5 of the FBI?
6 A. Two and a half years.
7 Q. Where were you assigned next?
8 A. The New York FBI field office.
9 Q. In what year did you transfer to the New York office?
10 A. In 1989.
11 Q. When you first started working in the FBI's New York
12 office, what kind of squad or work were you assigned to?
13 A. I was assigned to a foreign counter-intelligence squad.
14 Q. How long did you remain with the foreign
15 counter-intelligence squad?
16 A. Only a few weeks.
17 Q. What happened after that?
18 A. My file was reviewed and the assistant director of the
19 office recognized that I had a degree in engineering. At the
20 time in the FBI, there were not a lot of engineers, and they
21 asked me if I wanted to go over to another part of the FBI
22 field office and work what we called special operations which
23 was where we did the technical work of the FBI, or electronic
24 surveillance.
25 Q. For how long did you work in the special operations
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476LSAT2 Elliott - direct
1 division of the FBI's New York office?
2 A. I was in New York for a total of seven years, and it was
3 almost that entire time.
4 Q. Could you describe in general terms the function of the
5 special operations division in the New York office?
6 A. Yes. We were responsible for working with the
7 investigative squads. When they would get a court-authorized
8 electronic surveillance wiretap, it was the special operations
9 technically trained agents who would go out and apply the
10 devices so that we could intercept the phone calls or place the
11 microphones so that we could intercept a spoken communication,
12 or apply the devices so that we could intercept a fax
13 communication, and also place cameras so that we could observe
14 the locations where criminal events were alleged to be taking
15 place.
16 Q. I'm going to ask you to describe very generally what
17 happens when the FBI receives court authorization to conduct
18 surveillance of a telephone. Did you provide a graphic that
19 would assist you in giving that explanation?
20 A. Yes, I did.
21 MS. BAKER: Miss Griffith, would you put up on the
22 screen, only for the witness and counsel, Government
23 Exhibit 1307?
24 Q. Mr. Elliott, do you see that graphic on your screen?
25 A. Yes, I do.
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476LSAT2 Elliott - direct
1 Q. Do you recognize it?
2 A. Yes.
3 Q. Is that the graphic that you provided?
4 A. Yes.
5 Q. And would that graphic assist you in explaining to the jury
6 very generally how surveillance of a telephone is initiated?
7 A. Yes.
8 MS. BAKER: Your Honor, I'd offer government
9 Exhibit 1307 for illustrative purposes.
10 MR. TIGAR: No objection, your Honor.
11 THE COURT: All right. Government Exhibit 1307 is
12 received in evidence as a demonstrative aid to the witness's
13 testimony.
14 (Government's Exhibit 1307 received in evidence)
15 MS. BAKER: Your Honor, may we publish it to the jury?
16 THE COURT: Yes.
17 BY MS. BAKER:
18 Q. Mr. Elliott, if you would, and please refer to Government
19 Exhibit 1307. To the extent that it helps you, please tell the
20 jury very generally what happens, how the FBI goes about
21 implementing a court-authorized telephone surveillance?
22 A. The first thing that would happen is that the Court order
23 would actually be served on the telephone company compelling
24 them to provide assistance to the FBI for this particular
25 wiretap. At that point in time, a technically trained agent
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476LSAT2 Elliott - direct
1 for the FBI would contact the telephone company and ask for two
2 things: One, they would ask for the location of the targeted
3 phone number or the phone number that we're trying to
4 intercept. Where in the neighborhood or the community does
5 that telephone appear outside the house so that we can apply a
6 bridging device there to intercept the phone call.
7 And also, the technically trained agent would ask for
8 a telephone line to be ordered from that location. And in this
9 case here on the bottom part of the picture you see a telephone
10 pole. We would order a telephone line from that location back
11 through the central office, back to the FBI office, so that
12 when we place that bridging device, we would be able to gain
13 access to the intercepted communication.
14 Q. Mr. Elliott, in your last answer you used the phrase
15 "bridging device". Is that a piece of equipment?
16 A. Yes, it is.
17 Q. And what is the function of that piece of equipment when
18 it's applied at the right location?
19 A. The bridging device is a piece of equipment that allows the
20 FBI to conduct a wiretap of a person's telephone service. That
21 bridging device is connected to the individual's telephone
22 circuit on one side; and on the other side it's connected to
23 the FBI's telephone circuit. So when the targeted person or
24 when that telephone that is targeted goes off-hook, that
25 bridging device would allow the FBI to listen in on that phone
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476LSAT2 Elliott - direct
1 conversation, much like picking up an extension in another
2 room, if you were listening to a phone call.
3 Q. How does what the FBI would hear or receive over its
4 telephone line compare to what the person using the target
5 telephone would hear or receive over their telephone?
6 A. It would be the same.
7 Q. Exactly the same in all ways?
8 A. Yes, yes.
9 MR. TIGAR: Your Honor, I'm going to object. This
10 essentially is opinion testimony, until and unless the witness
11 is qualified and tendered.
12 THE COURT: I'll allow that. Go ahead.
13 Q. Now, while you were working in the special operations
14 division of the FBI's New York office, what role did you play
15 in this process that you've just finished describing?
16 A. I would have been the technically trained agent that, as
17 shown in this image here, to go out to the telephone pole and
18 apply that bridging device across that telephone line. And
19 would have also been the person to contact the telephone
20 company to get the information as to where that bridging device
21 or where that telephone service appeared.
22 Q. Now, towards the right-hand side of the graphic, Government
23 Exhibit 1307, there's a depiction of when the duplicate
24 telephone line arrives back at the FBI office.
25 A. Yes.
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476LSAT2 Elliott - direct
1 Q. Just in very general terms, what kind of equipment or
2 technology is the telephone line then connected to at the FBI's
3 office?
4 A. When it comes into the FBI office, it comes into a frame
5 room. It would appear on a block of telephone circuits. And
6 at that point in time it would actually have to be connected
7 from that block of telephone circuits over to the computer
8 based recording system.
9 Q. While you were working in the special operations division
10 in the New York office, did you have any personal involvement
11 in programming or operating the actual recording system in the
12 FBI's office?
13 A. No.
14 Q. Were there other technically trained agents who were doing
15 that part of the process at that time?
16 A. Yes, there was.
17 MS. BAKER: Thank you, Miss Griffith. You can take
18 that graphic down.
19 Q. I don't remember if I asked you this question before: How
20 long did you remain in the special operations division in
21 New York?
22 A. Until September of 1995.
23 Q. What happened at that point?
24 A. I was promoted to supervisory special agent in the
25 engineering research facility at Quantico, Virginia.
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476LSAT2 Elliott - direct
1 Q. And did you become a supervisory special agent within any
2 particular component of the FBI or its electronic research
3 facility?
4 A. Yes.
5 Q. What is the name of that component?
6 A. It was within the electronic surveillance technology
7 section, and it was known then as the advanced telephony unit.
8 Q. For the benefit of the court reporter, would you please
9 spell that word, telephony?
10 A. T-e-l-e-p-h-o-n-y.
11 Q. Did you provide a diagram that would assist you and explain
12 the organizational structure of the FBI's electronic technology
13 section and the positions you held there?
14 A. Yes, I did.
15 Q. Miss Griffith, would you please show to the witness and
16 counsel Government Exhibit 1306?
17 Do you recognize that diagram?
18 A. Yes.
19 Q. Is that the diagram that you provided that presents the
20 organizational structure?
21 A. Yeah, it's the current organizational structure.
22 Q. Would that diagram assist you in explaining some of the
23 positions you've held within the FBI's electronic surveillance
24 technology section?
25 A. Yes.
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476LSAT2 Elliott - direct
1 MS. BAKER: Your Honor, I offer Government
2 Exhibit 1306 for demonstrative purposes.
3 MR. TIGAR: No objection.
4 THE COURT: All right. Government Exhibit 1306
5 received in evidence.
6 (Government's Exhibit 1306 received in evidence)
7 MS. BAKER: May we show it to the jury?
8 THE COURT: Yes.
9 BY MS. BAKER:
10 Q. Mr. Elliott, when you were first assigned to the electronic
11 surveillance technology section, in which part of that section
12 were you working?
13 A. On the graph, as shown on the far left-hand side, down in
14 that left-hand corner, is the advanced telephony unit. I was
15 assigned as a supervisory special agent to the subunit called
16 wireless intercepts.
17 Q. How long did you hold that position?
18 A. For a little more than a year.
19 Q. Would you define for the jury, please, the word
20 "telephony"?
21 A. Telephony is an industry term used by the telephone
22 industry to basically talk about all forms of telephones, to
23 include wire-line phones, wireless phones, fax transmissions,
24 and in some sense now it's being outdated, but it was a term
25 that was used for a number of years to refer to the whole of
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476LSAT2 Elliott - direct
1 those things, of wire-line and wireless or cellular phones.
2 Q. Now, when you use the word wire-line in this context, are
3 you referring to the regular, old-fashioned telephones that are
4 connected to each other by wires?
5 A. Yes.
6 Q. And wireless, does that refer to or include cellular
7 telephones?
8 A. It would include cellular and satellite telephones.
9 Q. While you were a supervisor in the advanced telephony unit,
10 what was the mission of that unit?
11 A. The mission of that unit was to look at the forward -- was
12 to be forward thinking in terms of the ways that we
13 communicated with telephones and how could the FBI ensure that
14 we had appropriate ways to intercept those telephones. Just to
15 the right of that unit that says advanced telephony unit, you
16 see a unit there that says CALEA implementation unit. They had
17 a responsibility for implementing a particular piece of
18 legislation or law, and the advanced telephony unit was the
19 technical arm of that implementation, and we would work with
20 them on ensuring that the FBI had wiretap capabilities against
21 future telephone services.
22 Q. In your last answer, you referred to the CALEA
23 implementation unit. Is CALEA an acronym?
24 A. Yes, it is.
25 Q. And that acronym is CALEA?
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476LSAT2 Elliott - direct
1 A. Yes.
2 Q. What does that stand for?
3 A. Stands for the Communications Assistance to Law Enforcement
4 Act of 1994.
5 Q. In very general terms, as you understand it, what was the
6 purpose of that law?
7 A. In the early 90's, the telecommunications industry was
8 changing. It was moving from those phones that were sitting on
9 your --
10 MR. TIGAR: Your Honor, I object to the opinion
11 testimony without other foundation or tendering.
12 THE COURT: I'll allow it.
13 A. In the early 90's, telephone service was primarily
14 wire-line to wire-line phone, and cellular phone was really
15 starting to come around. The FBI recognized that as cellular
16 telephone became more prominent and used more often, our
17 ability to intercept those telephone calls would be limited.
18 This legislation was passed to compel the telephone industry to
19 work jointly with law enforcement to develop new techniques and
20 new standards of intercepting primarily these wireless
21 telephone calls and any changed technologies that occurred in
22 the telephone industry.
23 Q. How long did you serve as a supervisor within the advanced
24 telephony unit?
25 A. Just a little more than a year, to a year and a half.
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476LSAT2 Elliott - direct
1 Q. What was your next position?
2 A. I was promoted in 1997 to unit chief of the
3 telecommunications interception unit, which is shown here on
4 this graph in almost the very center of the graph there.
5 Q. Now, does this particular exhibit, Government Exhibit 1306,
6 accurately reflect the components of the telecommunication
7 interception unit at the time that you were the unit chief?
8 A. No.
9 Q. Is there another version of this diagram that more
10 accurately depicts the components of that unit during the time
11 that you were its chief?
12 A. Yes.
13 MS. BAKER: Miss Griffith, if you would take that one
14 down.
15 Your Honor, may I approach the witness?
16 THE COURT: Yes.
17 Q. I've handed you another version of the diagram marked for
18 identification as Government Exhibit 1312. Does that version
19 of the diagram more accurately depict the composition of the
20 telecommunications intercept unit during the time you were its
21 chief?
22 A. Yes, it does.
23 MS. BAKER: Your Honor, I'd offer Government
24 Exhibit 1312 for demonstrative purposes.
25 THE COURT: All right. No objection? Government
SOUTHERN DISTRICT REPORTERS, P.C.
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476LSAT2 Elliott - direct
1 Exhibit 1312 received in evidence as a demonstrative aid.
2 (Government's Exhibit 1312 received in evidence)
3 MS. BAKER: May I show it to the jury?
4 THE COURT: Yes.
5 BY MS. BAKER:
6 Q. Mr. Elliott, directing your attention to the central
7 portion of Government Exhibit 1312, would you, using that for
8 reference, explain to the jury during the time that you were
9 the unit chief what was the mission or what were the functions
10 of the FBI's telecommunications interception unit?
11 A. During the time period that I was the unit chief of the
12 telecommunications interception unit, we had the responsibility
13 for providing to the FBI field offices the tools and
14 capabilities to conduct court-authorized electronic
15 surveillance as we've described in court today. The
16 subcomponents of that unit or the subunits would have been the
17 wireless intercepts and the wire-line intercepts that we've
18 spoke about just a moment ago. Also, the collection
19 technology, not only the ability to go out and to intercept the
20 telephone, but also the ability to record that intercepted
21 communication.
22 There was a new component added in in 1997 when I
23 became the unit chief and that was the switch-based intercepts
24 technology. Prior to that time, the intercepts were done from
25 the wire-line and wireless groups, and now we've created a new
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476LSAT2 Elliott - direct
1 switch-based intercept technology subunit.
2 (Continued on next page)
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SOUTHERN DISTRICT REPORTERS, P.C.
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476SSAT3 Elliott - direct
1 Q. In your last answer you used the phrase "switch-based
2 technology." Did you provide a diagram that would assist you
3 in explaining that system to the jury?
4 A. Yes.
5 Q. Ms. Griffith, would you please show to the witness and to
6 counsel Government Exhibit 1308.
7 Mr. Elliott, do you recognize that graphic?
8 A. Yes, I do.
9 Q. Would that graphic assist you in explaining switch-based
10 technology or capability to the jury?
11 A. Yes.
12 MS. BAKER: Your Honor, I offer Government Exhibit
13 1308 for demonstrative purposes.
14 THE COURT: All right.
15 No objection, Government Exhibit 1308 received in
16 evidence as a demonstrative aid to the witness' testimony.
17 (Government's Exhibit 1308 received in evidence)
18 MS. BAKER: May we publish it to the jury?
19 THE COURT: Yes.
20 Q. Mr. Elliott, if you would -- and please feel free to refer
21 to Government Exhibit 1308 -- explain to the jury what you were
22 referring to when you said that you began to make use of the
23 switch-based system or technology?
24 A. If you will notice in this exhibit, and it's very similar
25 to the last one, in that lower right-hand corner, what is
SOUTHERN DISTRICT REPORTERS, P.C.
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476SSAT3 Elliott - direct
1 missing is that person on the telephone pole. In this case
2 here after we had a court-authorized intercept the telephone
3 company would be contacted, the court order would be served,
4 and instead of providing us the location at a telephone pole
5 where we would go and apply a bridging device, there would now
6 be software within that telephone switch that had been
7 developed because of that Communications Assistance To Law
8 Enforcement Act that would now allow the telephone company to
9 program into their switch the ability for the FBI to intercept
10 this telephone call. And that is what you see in about the
11 center of the page on the bottom there where it says "carrier
12 provisioning function." That is occurring by cleared telephone
13 company personnel at their location upon the receipt of a court
14 order.
15 Q. What is the result of this method of connection as far as
16 what the FBI hears over the telephone line that comes back to
17 the FBI office as compared to what someone using the target
18 telephone would hear over their telephone?
19 A. Well, it's the same. You get to hear exactly what they are
20 saying across the telephone line. It's just that the bridging
21 occurs within the switch as opposed to a telephone pole near
22 their residence.
23 Q. Thank you, Ms. Griffith. You can take that exhibit down
24 please.
25 Now, you were explaining the functions or the mission
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476SSAT3 Elliott - direct
1 of the telecommunications interception unit at the time that
2 you were its unit chief and, Ms. Griffith, if you would please
3 put Government Exhibit 1312 back up on the screen.
4 How many FBI offices around the country have
5 technology for the conduct of electronic surveillance?
6 A. We have 79 FBI offices that have a standing capability to
7 conduct electronic surveillance.
8 Q. When you say standing capability, you mean the technology
9 is already present in the offices and available?
10 A. Yes.
11 Q. While you were the unit chief of the telecommunications
12 interception unit, how many people were under your supervision
13 or reported to you?
14 A. Approximately 125 people.
15 Q. As the unit chief of the FBI's telecommunications
16 interception unit, what role, if any, did you play in the FBI's
17 acquisition of new technology to record telephone calls?
18 A. I would have had oversight over all of those decisions.
19 Q. And as unit chief of the FBI's telecommunications
20 interception unit, what responsibility, if any, did you have to
21 support or to address issues relating to the FBI's then
22 existing technology for the recording of telephone calls?
23 A. Well, that was the responsibility of our unit, was to
24 insure that we had in place current modern equipment that would
25 be accurate in recording intercepted telephone calls.
SOUTHERN DISTRICT REPORTERS, P.C.
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476SSAT3 Elliott - direct
1 Q. How long did you remain the unit chief of the
2 telecommunications interception unit?
3 A. From June or July of 1997 until October of 2003.
4 Q. What happened in October 2003?
5 A. I was promoted to the assistant section chief for the
6 electronic surveillance technology section.
7 Q. Ms. Griffith, if you would take this diagram down and put
8 back Government Exhibit 1306, the current organizational
9 structure, and, Mr. Elliott, if you would refer to Government
10 Exhibit 1306, is your current position as assistant section
11 chief shown on that diagram?
12 A. Yes, it's in approximately the center of the diagram there
13 labeled "Assistant section chief, ESTS."
14 Q. And would you tell the jury what are your responsibilities
15 as assistant section chief of the FBI's Electronic Surveillance
16 Technology Section?
17 A. First and foremost I assist the section chief in managing
18 the section. I would assist him in setting the priorities and
19 responsibilities of the section, and then I would ultimately
20 have the responsibility of insuring those responsibilities and
21 priorities are carried out through the various units, and
22 across the page there from left to right beginning with
23 advanced telephony unit over to audio surveillance unit, those
24 would be things that we call in the FBI units and I would have
25 the responsibility, the overall responsibility, of insuring
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476SSAT3 Elliott - direct
1 that the Electronic Surveillance Technology Section practices
2 and procedures were carried out accurately throughout all of
3 those units.
4 Q. And are the units divided essentially by subject matters or
5 types of technology?
6 A. A bit of both.
7 Q. In your current position as assistant section chief, are
8 there people reporting to you now who hold the positions that
9 you previously held both in the advanced telephony unit and
10 then as unit chief of the telecommunications interception unit?
11 A. They report to me in terms of the technology within their
12 unit but not in terms of personnel management.
13 Q. To what extent do you in your capacity as assistant section
14 chief of the Electronic Surveillance Technology Section have
15 oversight or higher-level responsibility for the technology
16 that the FBI uses to record telephone calls and conduct other
17 forms of electronic surveillance?
18 A. Well, based upon my experience and the number of years I
19 have worked in the electronic surveillance area of the FBI, I
20 have a primary responsibility for the technology associated
21 with wiretapping in the FBI.
22 Q. In your current position as assistant section chief, how
23 many people are under your supervision or report to you
24 directly or indirectly?
25 A. A little more than 300.
SOUTHERN DISTRICT REPORTERS, P.C.
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476SSAT3 Elliott - direct
1 Q. Mr. Elliott, you testified earlier that your college degree
2 is in mechanical engineering. Could you define very briefly
3 mechanical engineering?
4 A. Mechanical engineering when I went through school is
5 primarily about machines, building machines. It was the
6 electrical and mechanical part of developing technology and
7 building things. A good example might be to look at a computer
8 today. A mechanical engineer wouldn't have anything to do with
9 the software or the hard drives or the floppy disks but a
10 mechanical engineering would design the case and the cover to
11 that case and be responsible for designing the mechanisms that
12 allowed the disks to go in and out.
13 Q. Is there now a different field of study known as computer
14 engineering?
15 A. Yes, computer engineering, computer science.
16 Q. But you did not study computer engineering yourself?
17 A. No.
18 Q. What level of knowledge or expertise do you believe that
19 you have about computers and how they work?
20 A. Well, I have a working knowledge as just a normal citizen
21 using personal computers. Within the FBI I have a very good
22 working knowledge of the systems that we use to conduct
23 electronic surveillance, which are now all primarily
24 computer-based systems.
25 Q. And you have developed that familiarity with the
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476SSAT3 Elliott - direct
1 computerized recording systems over the approximately 8 years
2 that you have had responsibility regarding those systems?
3 A. Yes, I have.
4 Q. Over those approximately 8 years that you have been
5 responsible for those recordings systems, have you had other
6 people working for you or with you who have a greater amount of
7 specialized technical knowledge regarding computers themselves?
8 A. Yes.
9 Q. Mr. Elliott, have you done any teaching or training of
10 anyone regarding electronic surveillance or the technologies
11 used to conduct electronic surveillance?
12 A. Yes.
13 Q. Would you please tell us about that?
14 A. From the time I became a supervisory special agent, even in
15 the position as unit chief and even now as an assistant section
16 chief, I have a responsibility to work with law enforcement,
17 both federal, state law enforcement, local law enforcement,
18 both international and domestic, in the areas of electronic
19 surveillance to teach and train one another how to apply these
20 techniques against newer communication capabilities.
21 Q. Have you ever served on any international committees
22 relating to electronic surveillance or the technology used to
23 conduct it?
24 A. Yes, I currently chair and co-chair two international
25 committees right now.
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476SSAT3 Elliott - voir dire
1 MS. BAKER: Your Honor, the government offers Mr.
2 Elliott under Rule 702 as an expert on the FBI's automatic
3 recording systems used to conduct telephone surveillance.
4 MR. TIGAR: May I take him on voir dire?
5 THE COURT: Yes.
6 VOIR DIRE EXAMINATION
7 BY MR. TIGAR:
8 Q. Mr. Elliott, you have told us you do not have a degree in
9 computer science, correct?
10 A. Correct.
11 Q. Are you a member of any professional associations dealing
12 with computer science?
13 A. No.
14 Q. Do you regard yourself as an expert on different file
15 formats, such as .VOC, that is dot VOC, .WAF, .MP 3?
16 A. No.
17 Q. You are familiar, are you not, with the electronic
18 surveillance in this case?
19 A. I am familiar with the equipment that was used to conduct
20 electronic surveillance but not necessarily the electronic
21 surveillance in this case.
22 Q. You are aware, are you not, that some of the evidence that
23 the government possesses is in the form of .VOC files, that is
24 .VOC, is that correct?
25 A. Yes.
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476SSAT3 Elliott - voir dire
1 Q. And is it your understanding, sir, that during the time
2 electronic surveillance was being conducted that the government
3 regards as relevant to this case there were two basic hardware
4 systems in place?
5 A. Yes.
6 Q. Now, the first of those was manufactured by Lockheed
7 Martin, correct?
8 A. Correct.
9 Q. And the second of those beginning in or about June-July
10 2000 was manufactured by Raytheon, correct?
11 A. That is correct.
12 Q. Did you have anything to do with, in your capacity as an
13 expert, the transition from Lockheed Martin to Raytheon?
14 A. Yes.
15 Q. Was that transition known by the name Digital Storm?
16 A. No.
17 Q. Did you have anything to do with Digital Storm?
18 MS. BAKER: Your Honor, I object on relevance grounds.
19 THE COURT: Sustained.
20 Q. Have you published any papers or monographs or books in the
21 field of electronic surveillance?
22 A. No, I have not.
23 Q. Have you published any monographs or books or articles in
24 the field of computer technology?
25 A. No, sir.
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1 Q. Have you been to places where there is a study of different
2 computer operating systems?
3 A. No, I have not.
4 Q. Have you taken any post-graduate courses in computer
5 systems or computer operation?
6 A. No, I have not.
7 Q. You are a member you say of two international committees,
8 is that correct?
9 A. That is correct.
10 Q. What are those?
11 A. One of those would be Law Enforcement Technical Exchange
12 Committee and the other would be the -- just the Technical
13 Exchange Committee.
14 Q. Are you familiar with an organization known as IOCE?
15 A. No, I am not.
16 Q. Have you ever presented any papers or documents for IOCE?
17 A. I have not.
18 Q. Are you a member of the Association For Computing
19 Machinery?
20 A. No.
21 Q. Do you know what the Association For Computing Machinery
22 is?
23 A. No, I do not.
24 Q. Have you ever been to an academic conference where
25 different people who were specialists in computer technology
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1 have given papers?
2 A. No.
3 Q. Do you regularly subscribe to technical or academic
4 journals written by people who specialize in computer
5 technology?
6 A. No, I do not.
7 Q. Would it be fair to say, sir, that your responsibility is a
8 hands-on responsibility, correct, in the day-to-day operations
9 of electronic surveillance?
10 A. No, it's not.
11 Q. Did you have a role in evaluating the Raytheon system that
12 replaced the Lockheed Martin system?
13 A. Would you repeat that please?
14 Q. Yes.
15 Did you have a role in evaluating the Raytheon system
16 that replaced the Lockheed Martin system?
17 A. I had oversight of that evaluation. I did not actually
18 participate in the day-to-day evaluation of that. It was done
19 by people who worked for me.
20 Q. And those people who worked for you, did they report to you
21 about the issues with which they were concerned in making the
22 change?
23 A. They did not report to me about issues they were concerned
24 with in making the change.
25 Q. Did you participate in any evaluations from a technical or
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1 scientific or professional point of view of the Lockheed Martin
2 system?
3 A. The Lockheed Martin system predates my tenure in the
4 Electronic Surveillance Technology Section.
5 Q. The Lockheed Martin system was used in this case until June
6 or July 2000, correct?
7 A. That is correct.
8 Q. And it was in use therefore from 1997 through that time,
9 correct?
10 A. That is correct.
11 Q. From the period 1997 until the middle of 2000 what was your
12 job?
13 A. I was the unit chief of the telecommunications intercept
14 unit.
15 MR. TIGAR: May I display government 1307, your Honor?
16 THE COURT: Yes.
17 Q. I am going to place on the overhead the traditional
18 telephone intercept, correct?
19 A. Okay.
20 Q. Now, back in those days -- and I am putting my finger here,
21 and I guess if I touch the screen, well, let's see if I touch
22 it -- well, I can make an arrow.
23 Do you see the arrow by the telephone pole?
24 A. Yes.
25 Q. That was you, right?
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1 A. Prior to 1995, yes.
2 Q. So prior to 1995 if the FBI wanted to listen in on
3 somebody's home that would be the target, correct?
4 A. That would be the target telephone.
5 Q. The target telephone. And here it's shown to be in
6 somebody's house, right?
7 A. Yes.
8 Q. Then you would actually have to go out to the telephone
9 pole near there and somebody would have to climb the pole and
10 put something on the wire, correct?
11 A. Yes.
12 Q. And then the call between the target, which is here, and
13 the call party, which is here, would go back to the Telco
14 central office which was there, correct?
15 A. Yes.
16 Q. And from there it would go to the FBI office, right?
17 A. Yes.
18 Q. And there is a picture there on the left-hand side of this
19 of a computer, correct?
20 A. That is correct.
21 Q. Now, in 1993 or '94, did they have computers that looked
22 like that at the FBI office that would record these things?
23 MS. BAKER: Objection, relevance.
24 THE COURT: I will allow it.
25 A. Well, that shows a monitor with a keyboard and the
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1 recording system that was in place at that time would have had
2 a monitor and a keyboard to be used to program that system to
3 do electronic surveillance.
4 Q. And at that time the calls were recorded on what medium?
5 A. It would have been on --
6 MS. BAKER: Your Honor, I object to this as outside
7 the scope of voir dire on the witness' qualifications.
8 THE COURT: I will sustain that.
9 Q. At what point did the FBI begin to use a digital medium to
10 record telephone calls?
11 MS. BAKER: Same objection.
12 THE COURT: All right. Sustained.
13 Q. In your study, sir, of computer technology that you told us
14 about, at what point did you become familiar with the use of
15 digital media to record telephone conversations?
16 MS. BAKER: Same objection.
17 THE COURT: I will allow that.
18 MR. TIGAR: I am sorry, your Honor?
19 THE COURT: I said I would allow that.
20 A. Would you repeat that please?
21 Q. At what point in your study of computer technology did you
22 first become familiar with the use of digital media to record
23 telephone conversations?
24 A. I was aware when I was in New York prior to 1995 that there
25 were computer systems recording intercepted telephone calls. I
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1 was not fully aware of how that worked and what medium that was
2 used until I became the unit chief of the telecommunications
3 intercept unit in or about June of '97.
4 Q. Are you familiar, sir, with file compression technologies?
5 A. Only that I know that it exists.
6 Q. Are you familiar with the concept of lossy and lossless
7 compression technologies?
8 A. Just from a layman's point of view that it exists.
9 MR. TIGAR: Your Honor, may I be heard with respect to
10 the 702 issue?
11 THE COURT: All right.
12 Ladies and gentlemen, this is a good time for our
13 mid-morning break.
14 Please remember my continuing instructions not to talk
15 about the case, and keep an open mind.
16 All rise please.
17 Please follow Mr. Fletcher.
18 (Jury left the courtroom)
19 THE COURT: The witness may step down.
20 Please be seated all.
21 MR. TIGAR: May I have just a moment, your Honor?
22 THE COURT: Sure.
23 (Pause)
24 THE COURT: If your Honor please, this witness has is
25 not shown to be a witness within the context of 702, 703, et
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1 cetera, with respect to the field of computer technology. He
2 has no academic background. His knowledge of file compression
3 technology, which is key to our issue, is simply as a layman.
4 His knowledge of software is simply as an observer. He has not
5 read or written anything of an academic nature. Therefore, he
6 has not been ever subject to peer review. He is not a member
7 of professional societies other than a couple of law
8 enforcement agencies.
9 He is, therefore, in the position of somebody who
10 comes on here as a law enforcement agent who is a fact witness
11 as to the Lockheed Martin system and Raytheon and so on. I
12 presume that is one of the things he is going to talk about and
13 also an expert. Thus, particularly raising problems under
14 United States v. Cruz, 363 F.3d 187, and I also cite to the
15 court with respect to expert testimony United States v.
16 Dukagjini -- in which your Honor was on the panel -- 346 F.3d
17 45. Dukagjini was decided under the prior rules but then in
18 footnotes discusses the application of the new rules.
19 So what we have here is a witness who the government
20 wants to use to speak well beyond his own personal knowledge of
21 systems and thus trespassing over the boundary line set by Rule
22 701 and as to which they have said in the presence of the jury
23 they want him to testify as an expert. We have, I can tell the
24 court, serious issues. And we have taken advantage of this
25 time to ask what a true computer expert is. We have one. This
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1 isn't it.
2 So we object to testifying to anything other than
3 whatever personal knowledge he may have about the job that he
4 did. The court has sustained objections -- mine -- to some of
5 these questions about the regulatory matrix within which he
6 works, no doubt as helpful to his testimony with respect to
7 Rule 701. We respectfully submit that is as far as it ought to
8 be able to go.
9 THE COURT: All right, Mr. Baker.
10 MS. BAKER: Your Honor, the government is not offering
11 Mr. Elliott as an expert generally in computers. The
12 government is offering Mr. Elliott specifically as an expert
13 with respect to the two computerized automatic recording
14 systems that were involved in the telephone surveillances at
15 issue in this case and, as the court has now heard, Mr. Elliott
16 has been in a position of responsibility with respect to those
17 two systems for approximately 8 years.
18 Rule 702 makes very clear that practical experience is
19 an appropriate basis for someone to be qualified as an expert
20 and the inquiry under Rule 702 in the court's function as
21 gatekeeper is would the expert's testimony assist the jury in
22 understanding some relevant issue in the case and does the
23 expert have the relevant or requisite qualifications to give
24 that particular testimony.
25 The government intends to elicit from Mr. Elliott
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1 explanations, sort of a general overview of how the two systems
2 operated and that they were designed to -- and, to his
3 knowledge, did -- accurately record telephone calls. And the
4 government respectfully submits that there is no person better
5 qualified to give that testimony than Mr. Elliott because of
6 the particular positions that he has held within the FBI over
7 the last 8 years.
8 MR. TIGAR: Briefly in response, one, the purpose of
9 the Kumho Tire case was to prevent so-called nonacademic
10 expertise from blowing right by the Daubert standards.
11 Number 2, the question of whether these systems can
12 accurately record is a function of the file formats that are
13 used. The record in this case is abundantly clear, in order to
14 make a digital file that is an accurate representation of an
15 audible event, there are file formats. Those file formats