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/
3000
476SSAT1
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
13
13 District Judge
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3001
476SSAT1
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
6
6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
8
8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
10
10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
12
12
13
14
15
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3002
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3003
476SSAT1
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 --
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3004
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3005
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3006
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3007
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3008
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3009
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3010
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3011
476SSAT1
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,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3012
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3013
476SSAT1
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3014
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3015
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3016
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3017
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3018
476SSAT1
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3019
476SSAT1
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)
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3020
476SSAT1
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3021
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3022
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3023
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3024
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3025
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3026
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,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3027
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3028
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3029
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3030
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3031
476LSAT2 Sloper - direct
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3032
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3033
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.
(212) 805-0300
3034
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.
(212) 805-0300
3035
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.
(212) 805-0300
3036
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.
(212) 805-0300
3037
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.
(212) 805-0300
3038
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.
(212) 805-0300
3039
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3040
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.
(212) 805-0300
3041
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.
(212) 805-0300
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.
(212) 805-0300
3043
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3044
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3045
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3046
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3047
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3048
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3049
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3050
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3051
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3052
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3053
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3054
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3055
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.
(212) 805-0300
3056
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3057
476LSAT2 Elliott - direct
1 switch-based intercept technology subunit.
2 (Continued on next page)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3058
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.
(212) 805-0300
3059
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3060
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.
(212) 805-0300
3061
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3062
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.
(212) 805-0300
3063
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3064
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3065
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3066
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.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3067
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3068
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3069
476SSAT3 Elliott - voir dire
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?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3070
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3071
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3072
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3073
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3074
476SSAT3 Elliott - voir dire
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
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3075
476SSAT3 Elliott - voir dire
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
16 principally today would be .VOC. However, .VOC itself has
17 morphed over time, your Honor, and I can put a witness on the
18 stand right now, and I would offer to prove it. We have a
19 computer expert who would tell you that even beyond .VOC as
20 people tried to get better and better at recording these events
21 there are other file formats.
22 MP3 we had a great deal of debate about. In this
23 case, your Honor, the government has tendered to us exhibits
24 showing that files in the course of being handled under what
25 are certain file compression techniques, that is to say, the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3076
476SSAT3 Elliott - voir dire
1 majority of the recordings were not recorded in .VOC. The key
2 issue when a file is transmuted from one form to another is
3 whether or not it is lossy or lossless. Although this witness
4 knows sort of what those terms mean, he is not in a position to
5 tell us whether or not the changes in file format affected
6 audio quality. And because the fundamental issue of whether or
7 not the information is accurately captured is a software issue,
8 this witness simply doesn't know anything about that and is not
9 in a position to express the opinion "oh, that is all right."
10 THE COURT: All right.
11 Mr. Baker.
12 MS. BAKER: Your Honor, this witness will testify that
13 it was under his supervision that the decision was made for the
14 files to be converted for the Lockheed Martin system files to
15 be converted to the .VOC format used by the Raytheon system and
16 he will testify that it was an integral part of that
17 conversion, the conversion was designed to maintain the
18 accuracy of the content of the files and that other than
19 decompression of the files, that the content of the files
20 remained unchanged in that conversion process. And he is
21 qualified to give that testimony by virtue of his oversight and
22 responsibility in these areas and the fact that he was
23 essentially the person who commissioned that conversion to be
24 done with that constraint. In other words, that the conversion
25 needed to be done in a way that maintained the accuracy of the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3077
476SSAT3 Elliott - voir dire
1 content of the files.
2 As to the other aspects that Mr. Tigar seeks to raise,
3 if Mr. Tigar wishes to raise those issues at this trial, he may
4 call his own experts to do so. The government doesn't read
5 Rule 702 or the Daubert case or the Kumho Tire case as
6 requiring that any one particular witness have expertise in all
7 fields that a party might deem relevant to the case. And we
8 respectfully submit, for the reason that I explained earlier,
9 that Mr. Elliott has sufficient expertise to provide the
10 testimony that the government seeks to elicit from him.
11 THE COURT: All right.
12 I will allow the witness to testify as an expert. I
13 won't explain that to the jury.
14 The witness is an expert based upon his knowledge,
15 experience, training to testify with respect to the FBI
16 automated recording system and to express opinions with respect
17 to it. The testimony is based upon his experience over a
18 considerable period of time and his responsibility for the
19 system.
20 There are limits on his testimony based upon his own
21 knowledge and those go to the weight of his opinion and can
22 certainly be argued to the jury. To the extent that he lacks
23 some knowledge with respect to some aspects of the system, that
24 can be brought out on cross and, indeed, by other expert
25 witnesses. But he is sufficiently qualified at this point to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3078
476SSAT3 Elliott - voir dire
1 testify as an expert witness.
2 Also, there is nothing in Dukagjini that would prevent
3 the witness from testifying as an expert witness.
4 This is not a confusion of in particular a case agent
5 and in general a fact witness who is also an expert witness,
6 and the opinions that the witness is being asked to give are
7 sufficiently founded in his practical experience and
8 responsibility for the system.
9 Yes.
10 MR. TIGAR: Your Honor, with respect, we accept your
11 Honor's ruling. We move under the last sentence of Rule 703 to
12 preclude him from testifying as to matters as to which he has
13 no personal knowledge. He hired it done. He had people
14 working for him who reported back to him about a conversion
15 process. Thus, he lacks personal knowledge of how the
16 conversion process went and, of course, the conversion process
17 is particularly important because we have to know did they
18 calibrate these machines? What particular machines did they
19 use? Did those machines have logs that show that they were
20 reliably operated?
21 And, with respect, that very issue is dealt with in
22 Dukagjini at Footnote 3.
23 THE COURT: Oh, the last sentence of Rule 703 prevents
24 an expert witness from getting into evidence otherwise
25 inadmissible data to support the witness' testimony. So the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3079
476SSAT3 Elliott - voir dire
1 witness would be allowed to testify with respect to his
2 opinions if they are -- let me begin that again.
3 The witness can testify as to his opinions but he
4 can't get into, unless the defense seeks to bring it up,
5 otherwise inadmissible evidence. So, for example, hearsay, he
6 couldn't explain as a way of otherwise putting that evidence
7 in.
8 MR. TIGAR: One additional matter, your Honor. If
9 this witness -- I am sorry, I didn't mean to interrupt.
10 THE COURT: Ms. Baker?
11 MS. BAKER: I agree with your Honor.
12 As I understand the last sentence of Rule 703, it says
13 that although the expert may render his opinion he shall not
14 provide hearsay supporting details of his opinion that
15 otherwise would be directly inadmissible.
16 THE COURT: Right.
17 MS. BAKER: And I was not seeking to elicit any such
18 information.
19 MR. TIGAR: Finally, then, your Honor, if this witness
20 is going to testify, as Ms. Baker now said, that he told
21 certain people to make certain file conversions and that they
22 did what he said, that I gather is the thrust of it, we don't
23 have any Jencks material, your Honor, that reflects any of
24 those orders that were given and yet his file of memos would be
25 statements that he made within the meaning of the Jencks Act
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3080
476SSAT3 Elliott - voir dire
1 relevant to that subject matter. I just raise that. I can on
2 cross examination go through and find out where the missing
3 pieces are.
4 THE COURT: Ms. Baker.
5 MS. BAKER: Your Honor, in preparing the witness to
6 testify at trial I discussed with him the topics about which I
7 would seek to have him testify, including the conversion
8 process, and I asked him whether he had written any documents
9 relating to those subjects and he told me that he had not.
10 THE COURT: Well, the witness may have to be recalled
11 if a more thorough search proves that his recollection is
12 incorrect.
13 MR. TIGAR: Also, your Honor -- and I am not trying to
14 argue about a ruling you already made -- the absence of
15 documentation of the steps taken with respect to a technical
16 matter itself bears upon the Daubert issue perhaps only to
17 weigh it, but I wanted-
18 THE COURT: Perhaps --
19 MR. TIGAR: Perhaps only going to weight. That is to
20 say, your Honor may not disturb the Daubert ruling but
21 surely -- not "surely" -- we would contend that the absence of
22 written protocols along the way is relevant to the Kumho prong
23 of the Daubert inquiry.
24 THE COURT: Well, it's plain that the government
25 should make the necessary inquiry promptly for some file search
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3081
476SSAT3 Elliott - voir dire
1 to assure that the witness' recollection is correct if it's a
2 matter that he is going to testify on on direct that there
3 there isn't a prior statement that relates to the subject
4 matter of his direct.
5 MS. BAKER: Your Honor, I am not sure I understand the
6 court's direction.
7 I asked the witness specifically whether he had
8 authored any such documents and he told me that his
9 recollection was that he had not.
10 What is the court directing that we should do to
11 inquire further?
12 THE COURT: There must be some regular ways of
13 checking whether someone had written a memo at about the time
14 that this was going on to see whether there was a prior
15 statement that relates to the subject matter of the direct.
16 MS. BAKER: I will ask the witness to follow up.
17 Your Honor, also, I renew the government's motion in
18 limine. Mr. Tigar in his voir dire of the witness raised the
19 subject of the .WAV files and the MP3 files and I renew the
20 government's motion in limine to preclude cross examination on
21 those types of files. Your Honor ruled that it would waste
22 time and be confusing and so on. Mr. Tigar then tried to
23 reverse your Honor's ruling by arguing that he needed to cross
24 examine about it to ascertain whether the witness bore any bias
25 or hostility. However, as the government previously proffered,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3082
476SSAT3 Elliott - voir dire
1 Mr. Elliott had no personal involvement with the preparation of
2 the disks that were produced to the defendants in discovery.
3 THE COURT: Well, it's a good point, but I allowed the
4 examination on voir dire with respect to the witness'
5 expertise.
6 MR. TIGAR: I don't know if counsel used the word
7 subvert. It always makes me nervous when the government uses
8 that word.
9 I did not intend to violate your Honor's order. I
10 thought it went to his expertise, whether he knew those things.
11 That is the only purpose, and I know what your Honor's ruling
12 was and I intend to follow it.
13 THE COURT: As I say, I didn't think that it was an
14 effort to go beyond the ruling. I appreciate you bringing it
15 to my attention. I appreciate the response, and we will take 5
16 minutes.
17 (Recess)
18 THE COURT: Please be seated all.
19 MR. PAUL: Judge, can we have one second?
20 THE COURT: Oh, sure.
21 MS. BAKER: Your Honor, shall I bring the witness in
22 in the meantime?
23 THE COURT: Yes.
24 (Continued on next page)
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3083
476SSAT3 Elliott - voir dire
1 (In open court; jury present)
2 THE COURT: Please be seated, all. All right, the
3 witness is on the stand. Mr. Fletcher?
4 DEPUTY CLERK: Agent Elliott, you're reminded you're
5 still under oath.
6 THE WITNESS: Yes.
7 THE COURT: You may proceed.
8 BY MS. BAKER:
9 Q. Mr. Elliott, I'd like now to ask you some questions about
10 the system that the FBI's New York office was using as of 1996
11 to record telephone calls in investigations like the one in
12 this case. First of all, if you would remind us please, what
13 was your position in 1996?
14 A. In 1996, I was the unit chief of telecommunications in the
15 interception unit at Quantico, Virginia.
16 Q. Was that in 1996 or did you --
17 A. I'm sorry --
18 Q. -- get that position in 1997?
19 A. I'm sorry. I was a supervisory special agent in the
20 advanced telephony unit in 1996. It was in 1997 I was promoted
21 to unit chief.
22 Q. So in 1996, when you were still the supervisor of the
23 advanced telephony unit, did you have any responsibility
24 regarding the telephone recording system that was then being
25 used in the New York office?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3084
476LSAT4 Elliott - direct
1 A. I did not.
2 Q. When you became the unit chief of the telecommunications
3 intercept unit in about the middle of 1997, did you then assume
4 responsibility for that recording system?
5 A. Yes.
6 Q. And was it the same recording system as you learned in
7 1997? Had the same recording system been in place for some
8 prior period of time?
9 A. Yes.
10 Q. What company made the system that the FBI's New York office
11 was using as of 1996 to record telephone calls?
12 A. Lockheed Martin.
13 Q. Could you, at the most general level, just describe how the
14 Lockheed Martin system worked?
15 A. The Lockheed Martin system was a computer-based system that
16 once it was programmed, it would automatically record
17 intercepted telephone calls based upon being court-authorized.
18 Q. How did the use of the Lockheed Martin system begin for any
19 particular telephone number?
20 A. The system administrator would have to program the Lockheed
21 Martin system to effect the automatic recording.
22 Q. When you say the system administrator, are you referring to
23 an agent with some specialized training?
24 A. Yes.
25 Q. Would you describe generally what sort of specialized
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3085
476LSAT4 Elliott - direct
1 training would an agent have to then be an operator or an
2 administrator of this system?
3 A. They would have received manufacturer's training, first and
4 foremost, on that Lockheed Martin system, and they would have
5 also received update training as things would have changed over
6 the years. And of course, they certainly had their training as
7 a special agent.
8 Q. How did the FBI deal with the telephone company in order to
9 ensure that the FBI was connecting the recording system to the
10 proper telephone number?
11 A. When the court order was served on the telephone company,
12 the telephone company would tell us the location of that
13 telephone as it appeared on a telephone pole, as depicted in
14 the graphics earlier, and give us that location; and then the
15 technically trained agent would go to that pole and, in concert
16 with the phone company, verify that in fact it was the right
17 telephone.
18 Q. Now, you said that a technically trained agent who was
19 serving as a system administrator would program the Lockheed
20 Martin recording system to start the recording process. Is
21 that right?
22 A. Yes.
23 Q. What kinds of information would a technically trained agent
24 program into the recording system?
25 MR. TIGAR: Objection, your Honor. Hearsay.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3086
476LSAT4 Elliott - direct
1 THE COURT: Foundation?
2 Q. Were there standard procedures in place within the FBI for
3 the kinds of information that were programmed into the Lockheed
4 Martin system when it was used to record telephone calls?
5 A. Yes.
6 Q. And were you familiar with those -- did you become familiar
7 with those standard procedures when you became the unit chief
8 of the telecommunications intercept unit?
9 A. Yes.
10 Q. What kinds of information would be programmed into the
11 Lockheed Martin system by a system administrator to start it
12 recording on a particular telephone number?
13 A. Well, first and foremost they would want to have the
14 telephone number that the intercept was against, and that would
15 be programmed in. They would program in the Court order
16 number, the start and stop times of the Court order. Sometimes
17 they would actually put in the name of the target, the person
18 who was responsible for that phone number, the name of the
19 case. They would also occasionally include the name of the
20 investigator, of the lead investigator on that particular case.
21 Q. Did the Lockheed Martin recording system have an internal
22 calendar and clock that allowed it to keep track of dates and
23 times?
24 A. Yes.
25 Q. Now, the technically trained agents who would program
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3087
476LSAT4 Elliott - direct
1 information into the Lockheed Martin system, were they also
2 responsible for monitoring the system to ensure that it was
3 operating properly?
4 A. Well, they were part of the team. There were other folks
5 there, engineers and technicians who were a part of that
6 maintenance aspect of making sure the system continued to run.
7 Q. Once the Lockheed Martin system was programmed by a trained
8 person to record calls on a particular telephone number, did
9 the system automatically record all calls that were made on
10 that telephone number?
11 A. Yes.
12 Q. I should say, to clarify my last question, made and
13 received on that telephone number?
14 A. Yes, it would.
15 Q. How did the Lockheed Martin system know when a particular
16 call started and stopped such that the system would know when
17 to start recording and when to stop recording?
18 A. When the telephone that the surveillance is against is
19 on-hook, there was a bridging device that was located at the
20 telephone pole that we spoke about earlier. That bridging
21 device was to emit a tone or it would send a tone back across
22 the telephone line that the FBI had ordered, and that tone
23 would tell the Lockheed Martin system when to turn on recording
24 and turn off recording. The presence of the tone would say,
25 Leave recording off. When the tone went away, the recording
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3088
476LSAT4 Elliott - direct
1 system would automatically begin to record.
2 Q. And what action on the target telephone itself would result
3 in that tone going away and the system therefore starting to
4 record?
5 A. Well, the primary action would be the taking the phone off
6 the hook, the receiver.
7 Q. What was it, more specifically, about the target telephone
8 coming off the hook that would result in that tone being
9 emitted by the bridging device stopping or restarting?
10 A. Typically, a wire-line phone, those phones that are
11 connected by wire to the telephone company, have a voltage on
12 them. And that voltage in the New York City area is about 52
13 volts, DC. When you take your phone off-hook, that voltage
14 drops and it goes down to about seven volts. When that voltage
15 drops, that bridging device at the telephone pole senses the
16 voltage drop, and it's like it opens a gate, and it opens a
17 gate now to the FBI. And then the tone goes away as soon as
18 that person takes the phone off the hook, and then it opens up
19 the line to the FBI at the same time so that the recording
20 would automatically start.
21 Q. Because of the way that bridging device works, that it's
22 triggered by changes in voltage, can other phenomena other than
23 the telephone, the target telephone coming off the hook,
24 trigger that bridging device to stop or start emitting that
25 tone?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3089
476LSAT4 Elliott - direct
1 A. Yes. There could be things like electric -- like storms.
2 A storm could occur. That could cause an electrical impulse on
3 the line that would cause the tone to go away. It could be
4 during the course of a conversation, if you're playing with the
5 phone and you hit the receiver or you hit one of the -- you hit
6 the receiver, and you can make the tone go away very quickly.
7 We've also found over the years that certain languages, female
8 speakers in certain languages mimic that tone, and their voice
9 will instantaneously make the tone go away. So there are other
10 things that can cause it.
11 Q. And other events like that could cause the system to
12 temporarily stop recording?
13 A. Yes, very temporarily.
14 Q. About how quickly would the system resume recording after
15 some disruption like that?
16 A. Well, it's been our practice that it's usually a second or
17 two or three before you see that it would come back. Even
18 though the drop in the tone is instantaneous, the return to
19 recording may be more than a second or so.
20 Q. This tone emitted by the bridging device, that's carried
21 over the duplicate telephone line that goes back to the FBI
22 office?
23 A. Yes, it is.
24 Q. Is that tone audible over the target telephone, someone
25 using the actual phone in the target's location?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3090
476LSAT4 Elliott - direct
1 A. No. The bridging device that's applied to the phone, when
2 the phone -- when you pick up your phone and you're using your
3 phone, you have no way of knowing that that bridging device is
4 there. You can't hear this tone. It can only be heard at the
5 other end of the FBI's line.
6 Q. And the Lockheed Martin recording system that you've been
7 discussing, that was located in the FBI's New York office?
8 A. Yes, it was.
9 Q. And so the duplicate telephone line that came back to the
10 FBI's office would ultimately be connected to that system; is
11 that right?
12 A. Yes.
13 Q. When the Lockheed Martin system initially recorded a
14 telephone call -- first of all, was the recording made
15 contemporaneously as the call was happening?
16 A. Yes, it was, it was a realtime recording.
17 Q. Where, to which component within the Lockheed Martin
18 system, was the call initially recorded?
19 A. It was recorded to the hard drive of the Lockheed Martin
20 system.
21 Q. Could you define very generally what you're referring to
22 when you say the hard drive?
23 A. The hard drive would be an embedded piece of the
24 computer-based system that is not necessarily easily removable,
25 and it would have been to that location in the system that we
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3091
476LSAT4 Elliott - direct
1 would have originally recorded the conversation.
2 Q. Now, what types of sounds were contained in recordings made
3 by the Lockheed Martin system of telephone calls?
4 A. Well, once the telephone was taken off the hook and that
5 voltage drop occurred, the tone could go away and the Lockheed
6 Martin system would immediately begin recording. So you could
7 hear dial tone. You would hear that. You would hear the
8 person either rotary dialing a phone or using touch tone to
9 dial a phone number. If they were speaking to someone else at
10 that time, you would also hear that. So anything that was done
11 on the line or said in the vicinity of that phone when it went
12 off-hook could very well be recorded.
13 Q. Essentially, was what was coming over the line to the
14 Lockheed Martin system and being recorded to exactly what the
15 parties to the conversation themselves were hearing over the
16 telephones?
17 A. Yes, it was.
18 Q. When the Lockheed Martin system recorded a call initially
19 onto its hard drive, did the system save any identifying
20 information along with the audio recording of the call itself?
21 A. Yes.
22 Q. What kinds of information did the system save along with
23 the audio recording of the call?
24 A. Well, it saved the telephone numbers that would have been
25 dialed from the target phone. It would have saved the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3092
476LSAT4 Elliott - direct
1 telephone numbers of the people calling in to the target phone.
2 It would have saved the start time of that intercept. And it
3 would have also saved the length of that call. So if it were a
4 three-minute call, it would have recorded the length of that
5 call.
6 Q. Is there a phrase that you use that refers to that set of
7 identifying information that the system saved along with each
8 recorded call?
9 A. Yeah. We refer to that as signal-related information.
10 Q. Is that abbreviated as SRI?
11 A. Yes.
12 Q. Ms. Griffith, would you please put up on the screen only
13 for the witness and counsel Government Exhibit 1001N.
14 Mr. Elliott, do you recognize Government Exhibit
15 1001N?
16 A. Yes.
17 Q. Miss Griffith, would you enlarge the top half of that page?
18 Thank you.
19 What is Government Exhibit 1001N?
20 A. It appears to be that information that we're referring to
21 as signal-related information about one of those intercepted
22 phone calls.
23 Q. Is it a printout on paper of such information?
24 A. Yes.
25 Q. As an example of the kind of information that the Lockheed
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3093
476LSAT4 Elliott - direct
1 Martin system would save with each call?
2 A. Yes.
3 MS. BAKER: Your Honor, for illustrative purposes I
4 offer Government Exhibit 1001N.
5 MR. TIGAR: May I take it on voir dire?
6 THE COURT: Yes.
7 VOIR DIRE EXAMINATION
8 BY MR. TIGAR:
9 Q. Agent Elliott, would you please look at the fifth line down
10 in that document?
11 A. All right.
12 Q. Does that line reflect a file type or version?
13 A. The one that says T non?
14 Q. No, the fifth line down, the one just above that.
15 A. That says "percent" and a "t"?
16 Q. No, the one above percent line?
17 A. .voc version.
18 Q. It's not in evidence yet. That's why I'm asking you
19 questions in this form, Sir.
20 A. I'm sorry.
21 Q. Does that reflect a file type?
22 A. I think that speaks to the version level of that.
23 Q. Uh-huh?
24 A. Of that.
25 Q. The first three letters, does that reflect the file type?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3094
476LSAT4 Elliott - voir dire
1 Those first three letters?
2 A. Okay.
3 Q. Do they or not? Do you know?
4 A. Yeah, it would be .voc. That would be the file type.
5 Q. All right. And what was the date, based on what you can
6 tell of the call whose data we're looking at here?
7 A. You would have to go down to session start.
8 Q. And there we can see that the date is sometime in the
9 calendar year 1996?
10 A. Yeah. There's a data string there that represents the
11 date.
12 Q. Now, therefore this relates to a telephone interception
13 that took place while the Lockheed Martin system was operating
14 in your office; is that correct?
15 A. This would be probably the converted Lockheed Martin file
16 because it's showing the dot --
17 Q. Right. So this document does not -- is not a header from a
18 Lockheed Martin file created in calendar 1996, is it?
19 Yes or no, do you know?
20 A. Well, I would say yes. Because when the files were
21 converted to the .voc, we just took the header information that
22 was already there and put it into the header field of the .voc
23 file, so it's the same information.
24 Q. Isn't it a fact, Sir, that the Lockheed Martin file format
25 was not .voc?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3095
476LSAT4 Elliott - voir dire
1 A. Oh, that is true, it was not.
2 Q. So back in 1996, is it fair to say you could not have
3 created the document that had a header on it that said what
4 we're about to see here is a .voc file? Is that fair?
5 A. That's true.
6 MR. TIGAR: I object to the exhibit, your Honor.
7 THE COURT: Sustained.
8 DIRECT EXAMINATION (cont.)
9 BY MS. BAKER:
10 Q. I believe where we left off before we turned to the
11 exhibit, I was asking you about the identifying information
12 that the Lockheed Martin system saved along with each audio
13 recording of a call. And you mentioned that part of that
14 information that it saved was the date of the call; is that
15 correct?
16 A. Yes.
17 Q. And also the start time of the call?
18 A. Yes.
19 Q. And the duration or length of the call?
20 A. Yes.
21 Q. And did the system get that information, the date, time and
22 duration, from its internal calendar and clock that it
23 maintained?
24 A. Yes, it did.
25 Q. Was that signal-related information, that identifying
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3096
476LSAT4 Elliott - direct
1 information, automatically saved by the system at the same time
2 that it made the audio recording of the call?
3 A. Yes, it does.
4 Q. And that was at the time the call actually occurred?
5 A. Yes.
6 Q. Now, did the Lockheed Martin system save the audio
7 recording of the call and its related identifying information
8 in a particular computer file format?
9 A. Yes, it did.
10 Q. And before I ask you what the format was, what is your very
11 general understanding of what that phrase "file format" refers
12 to?
13 A. It -- basically the subscript of a file name that tells you
14 the type of file that you need to play back that format.
15 Q. And very generally, when you use the term "file" in this
16 context, a computer-related context, what does that term "file"
17 refer to?
18 A. We're talking about an intercepted telephone call, would
19 have been that file.
20 Q. And that's in this particular context of the automatic
21 recording system?
22 A. Yes.
23 Q. Generally, is a file essentially a way of packaging data or
24 a set of data?
25 A. It is. In general terms, it's a way of storing something
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3097
476LSAT4 Elliott - direct
1 much like you would do in a Word Perfect document: If you were
2 to type a letter and you were to save that to the hard drive of
3 your computer, and you wanted to retrieve it later, you would
4 go to that file that you've named a particular name, and you
5 could retrieve it.
6 Q. Now, within the Lockheed Martin system, in what format or
7 kind of format was the audio recording of each call and its
8 related identifying information saved?
9 A. It was saved in a format that had been built specifically
10 for Lockheed Martin. It was proprietary, or built only for
11 them.
12 Q. What do you mean when you say proprietary, as far as
13 whether or not that file was more generally available in other
14 contexts?
15 A. What I mean by that, in order to play that file back, you
16 would have to have Lockheed Martin technology to play it back.
17 You couldn't go down to the Best Buy store and buy an audio
18 player to play that audio back.
19 Q. Now, you've testified that initially, when the Lockheed
20 Martin system recorded a call, it recorded it to the hard drive
21 of a system, correct?
22 A. Yes.
23 Q. Within the Lockheed Martin system, after it recorded the
24 file to its hard drive, did it duplicate the file to some other
25 component within the system?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3098
476LSAT4 Elliott - direct
1 A. Yes. It would automatically archive that recorded file to
2 a removable media or to an eight millimeter tape within the
3 system.
4 Q. In your last answer, you used the phrase "removable media".
5 What does that phrase refer to?
6 A. In general terms, talking about those things like floppy
7 disks or CD's or DVD's, that you record information from a
8 computer onto.
9 Q. And that you can then remove those items easily from the
10 computer?
11 A. Yes, yes.
12 Q. And is that in contrast to the hard drive which is not so
13 easily removed from the computer?
14 A. Correct.
15 Q. You said a minute ago that within the Lockheed Martin
16 system, the removable medium that was used was some type of
17 tape?
18 A. It was eight millimeter tape.
19 MS. BAKER: Your Honor, may I approach the witness?
20 THE COURT: Yes.
21 BY MS. BAKER:
22 Q. Mr. Elliott, I've handed you an item that's been marked for
23 identification as Government Exhibit 1304. Do you recognize
24 Government Exhibit 1304?
25 A. Yeah, it's an eight millimeter data tape.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3099
476LSAT4 Elliott - direct
1 Q. Is that the type of tape that the Lockheed Martin system
2 used to archive the recordings that it made?
3 A. Yes, it is.
4 MS. BAKER: Your Honor, I offer as an illustrative or
5 demonstrative exhibit Government Exhibit 1304.
6 MR. TIGAR: One question, your Honor, please, on voir
7 dire.
8 THE COURT: Sure.
9 MR. TIGAR: May I ask it from here?
10 THE COURT: Yes.
11 VOIR DIRE EXAMINATION
12 BY MR. TIGAR:
13 Q. There's no data on there, is there, Sir, to your knowledge?
14 A. Date?
15 Q. Data. It's blank.
16 A. Oh, yeah, I think it is, yes.
17 MR. TIGAR: No objection, your Honor.
18 THE COURT: All right. Government Exhibit 1304
19 received in evidence as a demonstrative aid to the witness's
20 testimony.
21 MS. BAKER: Your Honor, may I publish it by having it
22 passed through the jury?
23 THE COURT: Yes.
24 BY MS. BAKER:
25 Q. Mr. Elliott, why did the Lockheed Martin system --
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3100
476LSAT4 Elliott - direct
1 THE COURT: Whoa. If you pass something, you should
2 wait.
3 (Pause in proceedings)
4 BY MS. BAKER:
5 Q. Mr. Elliott, why did the Lockheed Martin system duplicate
6 the recordings from its hard drive to these eight millimeter
7 tapes? Why couldn't the files just remain stored on hard drive
8 at the Lockheed Martin system?
9 MR. TIGAR: Your Honor, assumes a fact not in
10 evidence. The question is "duplicate". The witness used the
11 term "archive".
12 THE COURT: Why don't you rephrase.
13 MS. BAKER: Your Honor, I'll withdraw that question
14 and ask a different question first.
15 THE COURT: All right.
16 BY MS. BAKER:
17 Q. Mr. Elliott, when the Lockheed Martin system archived the
18 recording from its hard drive to an eight millimeter tape, was
19 that an exact copy that was made?
20 A. Yes, it was.
21 Q. And was the file that ended up on the eight millimeter tape
22 in the same format as the file that had been on the hard drive
23 at the system?
24 A. Yes, it was.
25 Q. Did the Lockheed Martin system perform that function of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3101
476LSAT4 Elliott - direct
1 duplicating the file from its hard drive to an eight millimeter
2 tape automatically?
3 A. Yes. The system would have been programmed to
4 automatically archive within two hours.
5 Q. Let me go back to my previous question which was why did
6 the Lockheed Martin system duplicate the files from its hard
7 drive to these eight millimeter tapes? Why couldn't the files
8 simply remain stored on the hard drive of the system?
9 A. Well, one, we have to -- first and foremost is that we have
10 to take the recorded phone conversations and seal them or
11 remove them off into protective storage for the Court so that
12 someday when we come here, that we have those recorded phone
13 calls. The hard drives for the system in those days were not
14 hard drives like today. You can get 100 gigabyte, huge hard
15 drives. In those days, they were much smaller. Over a period
16 of time, we had to get the phone calls off to removable media
17 so that we could use the hard drive to record new phone calls
18 that were coming in.
19 Q. If I've understood you correctly, the capacity of the hard
20 drive was limited and so you needed to free up space on there
21 for new incoming calls.
22 A. Yes.
23 Q. Why did the FBI choose this particular type of eight
24 millimeter tape as the removable medium, as the type of device
25 for storing the recorded telephone calls with the Lockheed
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3102
476LSAT4 Elliott - direct
1 Martin system?
2 A. We chose it because it was a high capacity recording
3 medium. In other words, we could store a lot of intercepted
4 phone calls on a single eight millimeter tape. At that point
5 in time, we were trying to utilize as much of those tapes as
6 possible.
7 Q. What was the FBI's belief during the period of time that
8 those tapes were being used regarding whether they were an
9 appropriate medium for storing the appropriate telephone calls?
10 MR. TIGAR: Objection to the "FBI's belief".
11 THE COURT: Sustained.
12 Q. Once you became the unit chief of the telecommunications
13 intercept unit, part of your responsibility was supporting this
14 Lockheed Martin system which was still in use at that time?
15 A. Yes.
16 Q. And were these eight millimeter tapes still being used as
17 the removable medium of that system?
18 A. Yes, they were.
19 Q. What did you come to believe, based on your experience and
20 the position you held as unit chief, regarding whether these
21 tapes were an appropriate choice for a storage medium for the
22 recorded calls from the Lockheed Martin system?
23 A. Occasionally, from time to time, we would have to go back
24 to those tapes, which as I think you recall I told you the hard
25 drives were small and we didn't store a lot of phone calls
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3103
476LSAT4 Elliott - direct
1 there, and there would be a particular call that would have to
2 be translated or transcribed because of the Court event, so
3 we'd have to take that tape and reload it onto the system. As
4 we began to do that, some of the older tapes were starting to
5 age and get old and brittle and they would break as we would
6 try and reload them. We had bought these tapes because at that
7 time the technology was telling us that they had a long shelf
8 life and they were reliable in the sense of being able to play
9 back years later. And we started to notice that some of the
10 older tapes were failing.
11 Q. I'm going to ask you some more about that subject later.
12 Again, turning back to the use of these tapes to store
13 the calls, could the original tapes recorded by the Lockheed
14 Martin system be used as evidence here in court?
15 A. Not today.
16 Q. Why is that?
17 A. We don't have a player that would allow us to play the
18 audio from those tapes in their original Lockheed Martin file
19 formats.
20 Q. We're going to come back to that subject as well.
21 Aside from the logistical issue of what equipment
22 would be necessary, is there any other reason why the original
23 Lockheed Martin tapes could not be offered as evidence here in
24 court?
25 A. Yes, the original tapes on the Lockheed Martin system, when
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3104
476LSAT4 Elliott - direct
1 we were storing phone calls on those tapes, they were sorted by
2 language, not by one case, one tape. So today, when we look at
3 the original tapes, they're sorted by a particular language,
4 but there may be many different investigations on that
5 particular tape, and those investigations would be classified
6 and we wouldn't be able to bring that into open court and play
7 those tapes here.
8 MR. TIGAR: Your Honor, I object to that.
9 THE COURT: Sustained.
10 Q. Where within the New York office of the FBI was the
11 Lockheed Martin system physically located?
12 A. It was located in a 50-foot area that we call "the shield",
13 meaning that it's physically secure from other agents,
14 investigators, employees of the building, that they not have
15 access to that system unless they need to have access to that
16 system.
17 Q. What group of personnel would have access to that room
18 where the Lockheed Martin system was located?
19 MR. TIGAR: Object to "would have", your Honor.
20 Q. Withdrawn. I'll rephrase.
21 THE COURT: All right.
22 Q. What was FBI procedure regarding what group of FBI
23 personnel did have access to the room where the Lockheed Martin
24 system was located?
25 A. It would have been the people with system administrative
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3105
476LSAT4 Elliott - direct
1 privileges, and that would also include the engineers and
2 technicians who would be responsible for maintaining the
3 systems on a 24-hour basis.
4 Q. Approximately how many people were in that group of people
5 who were authorized to have access to the Lockheed Martin
6 system and where it was located?
7 A. In the New York office, it could have been five or six
8 people because it was a 24-hour operation, and so you'd want to
9 have at least that number of people to allow for vacations and
10 holidays and time off.
11 Q. Aside from limiting physical access to the room where the
12 Lockheed Martin system was located, what, if any, other
13 limitations were there on who could have access to the Lockheed
14 Martin system?
15 A. Even physically if you could have got to the system you
16 would have to have a password to log on, and there are only
17 just a very few people that would have had the ability to log
18 onto the system and do anything with it.
19 Q. Once the eight millimeter tapes to which the system
20 duplicated the calls were removed from the system, were those
21 tapes stored in a way that limited access to them?
22 A. Yes, they were, in a way, stored in that same shield area.
23 Q. To your knowledge, regarding the personnel in the New York
24 office who had access to the Lockheed Martin system and its
25 tapes, during the time that you were the unit chief of the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3106
476LSAT4 Elliott - direct
1 telecommunications intercept unit, to your knowledge, did any
2 of those personnel speak Arabic?
3 A. Not to my knowledge.
4 Q. When you became the unit chief of the telecommunications
5 intercept unit in about July, 1997, how long had the Lockheed
6 Martin system been used by the FBI's New York office to record
7 telephone calls?
8 A. It had been there since the mid to late 80's.
9 Q. And how long did the Lockheed Martin system remain in use
10 in the FBI's New York office for the recording of telephone
11 calls?
12 A. I think until sometime around the 2000, 2001 timeframe, we
13 started to phase that system out.
14 Q. Was the Lockheed Martin recording system used by the FBI at
15 any location other than New York?
16 A. Yes.
17 Q. Where else was that system used by FBI?
18 A. It was used in the Los Angeles field office to do the same
19 thing, to record telephone calls; and then we had a playback
20 capability in Salt Lake City because we had language
21 specialists there, people who could listen to a foreign
22 language and translate it for us. So those would have been the
23 only places that the Lockheed Martin system or a part of that
24 system would have been.
25 Q. Earlier in your testimony you testified that there are a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3107
476LSAT4 Elliott - direct
1 pretty large number of locations around the country where the
2 FBI maintains technology for conducting telephone
3 surveillances, but you've now just testified that the Lockheed
4 Martin system in particular was used in only two of those
5 locations. Why was that?
6 A. The Lockheed Martin system was a high-capacity system,
7 meaning that we could record lots of telephone calls on
8 particular investigations, and it was only in a few locations
9 that the FBI needs a high-capacity computer-based telephone
10 intercept or record system.
11 Q. Turning back to the issue of the FBI stopping the use of
12 the Lockheed Martin system, did you provide a diagram that
13 would assist you in testifying about the change from the
14 Lockheed Martin system to a different system?
15 A. Yes.
16 Q. Miss Griffith, would you please display to the witness and
17 counsel only Government Exhibit 1311?
18 Mr. Elliott, do you recognize Government Exhibit 1311?
19 A. Yes, I do.
20 Q. Is that a diagram that you provided regarding transitions
21 in technology at the FBI?
22 A. Yes.
23 Q. And would that assist you in explaining to the jury the
24 FBI's distinction of the use of the Lockheed Martin system?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3108
476LSAT4 Elliott - direct
1 MS. BAKER: Your Honor, offer Government Exhibit 1311
2 as a demonstrative exhibit.
3 MR. TIGAR: No objection, your Honor.
4 THE COURT: Fine. Government Exhibit 1311 received as
5 a demonstrative to aid the witness's testimony.
6 (Government's Exhibit 1311 received in evidence)
7 MS. BAKER: May we publish Government Exhibit 1311 to
8 the jury?
9 THE COURT: Yes.
10 BY MS. BAKER:
11 Q. Mr. Elliott, what was your position with the FBI at the
12 time the FBI decided to switch from the Lockheed Martin system
13 to some other system?
14 A. I was the unit chief of the telecommunications intercept
15 unit.
16 Q. In that position, what role did you play in the FBI's
17 decision to switch from the Lockheed Martin system to another
18 system?
19 A. I made that decision.
20 Q. Would you explain to the jury why you decided, the FBI
21 decide, to discontinue use of the Lockheed Martin recording
22 system and switch to another one?
23 A. The Lockheed Martin system was old in terms of computer
24 technology. It had been around and been useful to us since the
25 mid to late 80's. And we contacted Lockheed Martin about
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3109
476LSAT4 Elliott - direct
1 having to upgrade the system because of changes that were
2 occurring in the telecommunications industry. They indicated
3 to us that they wanted to get out of that business; they did
4 not want to continue to support that system for us. We only
5 had it in three locations. It was obviously not a big business
6 market for them. And so they wanted to get out of that. We
7 then made a decision that we had to find an alternate vendor.
8 MS. BAKER: Your Honor, I'm at a transition point.
9 Would you like me to continue or would you like to break for
10 lunch?
11 THE COURT: No, that's all right. It's about time for
12 lunch.
13 Ladies and gentlemen, we'll break now for lunch until
14 2:00 o'clock. Follow my continuing instructions not to talk
15 about the case.
16 All rise, please.
17 (Jury exits the courtroom)
18 (Continued on next page)
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3110
476LSAT4 Elliott - direct
1 (In open court; jury not present)
2 MR. TIGAR: Your Honor, may I be heard?
3 THE COURT: Yes. The witness may step down.
4 MR. TIGAR: Your Honor, we move at this time in
5 connection with the testimony of this witness for the
6 production of all protocols used by the FBI with respect to the
7 operation of these systems, he having testified on direct that
8 there were procedures. We move for production of the
9 maintenance logs of the machines that the engineers were
10 maintaining including logs that would show the operation of the
11 internal clock. We move for production of any access logs --
12 that is to say, logs that may or may not have been created, but
13 if they were, we want them -- that show when a person accessed
14 a particular digital file to check it out of the system, and
15 what was done when it came back in. And this relates to our
16 ability to examine this witness with respect to his testimony.
17 MS. BAKER: Your Honor, I don't know whether any such
18 documentation exists, but if it does, I don't see the relevance
19 of logs of particular accesses to pieces of equipment or files
20 to the examination of this witness. Obviously, his level of
21 responsibility with respect to these systems was at a higher
22 level. He isn't going to be able to speak specifically to the
23 accuracy of any particular log, if, in fact, there is such a
24 log. He is aware that there were access limitations, as he has
25 described in his testimony, but the particular documentation,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3111
476LSAT4 Elliott - direct
1 if it exists at all, is not going to be within the scope of his
2 knowledge, and therefore is not going to be relevant to
3 cross-examination.
4 MR. TIGAR: Your Honor, it may be that the Court
5 regards the motion as premature. If Miss Baker's position is
6 that these things may or may not exist -- he testified about
7 the security system that existed around these files and these
8 machines. I'll cross-examine him about what, if any,
9 documents, records, were created concerning that security
10 system. I represent to the Court that today the industry
11 standard is if my software person is working on a sensitive
12 file, they must create a log file that shows when they went
13 into the file, that they got it, and then when they put it back
14 in the system. The system makes a log file that shows what
15 changes were made. My letter of May 24th 2004 demonstrates
16 that the FBI has a program that keeps log files that record
17 what are done in the files. So if the government's position is
18 they don't know if these things exist, they can inquire of the
19 witness or not.
20 I wanted to make my position clear so I didn't delay
21 the proceedings by doing that.
22 THE COURT: I appreciate that. The government should
23 make inquiry as to whether that exists, and you can find out
24 whether it's an issue or not.
25 All right? Yes?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3112
476LSAT4 Elliott - direct
1 MS. BAKER: I was going to ask whether the Court had
2 determined -- my alternative argument was that even if such
3 documents exist, they would not be relevant to the examination
4 of the witness, and I didn't know whether the Court was
5 deferring on that issue or --
6 THE COURT: Well, it's not clear that, without knowing
7 what documents exist, what would their relevance be. It's not
8 clear to me that the witness testified about the issue of
9 maintenance. The witness did testify about the restricted
10 access to the system, and so logs may be relevant to that
11 issue. I'll certainly listen to argument on it. But the
12 government should inquire whether there are documents in those
13 three areas.
14 All right.
15 (Luncheon recess)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3113
476SSAT5 Elliott - direct
1 AFTERNOON SESSION
2 2 p.m.
3 (In open court; jury not present)
4 THE COURT: Please be seated all.
5 Are we ready to continue the direct?
6 MS. BAKER: Yes, your Honor.
7 THE COURT: All right.
8 Bring in the jury.
9 (In open court; jury present)
10 MICHAEL ELLIOTT resumed.
11 THE COURT: Please be seated all.
12 The witness is on the stand.
13 Mr. Fletcher.
14 THE CLERK: Agent Elliott, you are reminded you are
15 still under oath.
16 THE WITNESS: Yes.
17 THE COURT: You may continue, Ms. Baker.
18 MS. BAKER: Your Honor, may we display again
19 Government Exhibit 1311, which was received in evidence before
20 lunch?
21 THE COURT: Yes.
22 MS. BAKER: Ms. Griffith, would you please put that
23 back up on all the screens.
24 DIRECT EXAMINATION (Continued)
25 BY MS. BAKER:
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3114
476SSAT5 Elliott - direct
1 Q. Mr. Elliott, before we broke for lunch I was asking you
2 questions regarding the fact that at some point the FBI's New
3 York office stopped using the Lockheed Martin system to record
4 telephone calls. So that the record is clear, for what period
5 of time, from what year until what year, did the FBI's New York
6 office use the Lockheed Martin system to record telephone
7 calls?
8 A. From the late '80s, about 1988 or '89 through 2000, 2001.
9 Q. And about when was the decision made to get a new system?
10 A. In 1998 and '99 was when we had contacted Lockheed Martin
11 to talk about upgrading that system because we knew there were
12 changes that were coming in the telecommunications industry and
13 we wanted to upgrade those systems.
14 Q. Did the decision to get a new system to record telephone
15 calls, was that decision in any way based on any concern that
16 the Lockheed Martin system was failing accurately to record
17 telephone calls?
18 MR. TIGAR: Objection.
19 THE COURT: Sustained as to form.
20 Q. As you testified before, at the time of the decision to get
21 a new system, you were the unit chief of the telecommunications
22 intercept unit, is that right?
23 A. Yes.
24 Q. And you testified that you essentially made that decision
25 to get a new system?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3115
476SSAT5 Elliott - direct
1 A. Yes, I did.
2 Q. Was your decision to get a new system in any way based on
3 any information that you had that the Lockheed Martin system
4 was failing accurately to record telephone calls?
5 THE COURT: Sustained as to form as to leading.
6 Q. To what extent, if any, did any information about the
7 Lockheed Martin system and whether, if at all, it was failing
8 to accurately to record phone calls, to that extent did that
9 kind of information factor into your decision that the FBI
10 would get a new system?
11 A. The decision to move to a new system was not because of any
12 problems with the Lockheed Martin system. Primarily in part
13 because Lockheed Martin had indicated to us that they no longer
14 wanted to be in this business. They did not want to support
15 the system. We were able to get two additional years out of
16 them on just a maintenance contract to maintain the system in
17 the form of a maintenance contract. It was in 1998 and '99
18 that we had contacted them about this and it was at that time
19 that we started the process to get a new system to replace.
20 Q. And ultimately was a new system, a new automatic recording
21 system, put into place in the New York office?
22 A. Yes, it was.
23 Q. What company manufactured the newer system that was put
24 into place?
25 A. Raytheon.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3116
476SSAT5 Elliott - direct
1 THE COURT: Please keep your voice up and talk into
2 the microphone.
3 A. Raytheon.
4 Q. And in about what year did the FBI begin using the Raytheon
5 system to record telephone calls in the New York office?
6 A. We started using the Raytheon system in New York in the
7 late '90s and around 2000.
8 Q. Was the Raytheon system similar to the Lockheed Martin
9 system in the sense that the Raytheon system also was a
10 computerized system that recorded calls automatically?
11 A. Yes, the Raytheon system was similar in that fashion.
12 Q. How did the use of the Raytheon system begin with respect
13 to any particular telephone number that the FBI had received
14 authorization to surveil?
15 A. It would have been the same way that we utilized the
16 Lockheed Martin system. The system administrator would have
17 programmed that system with the target telephone number and
18 entered the information necessary to cause the system to begin
19 recording.
20 Q. Ms. Griffith, you can take down Government Exhibit 1311
21 please.
22 Was the programming of the Raytheon system done by
23 technically trained agents?
24 A. Yes.
25 Q. What kinds of information did the technically trained
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3117
476SSAT5 Elliott - direct
1 agents program into the Raytheon system to use it to record
2 calls on a particular number?
3 MR. TIGAR: Objection, foundation.
4 THE COURT: Sustained.
5 Q. During the time that the Raytheon system started to be used
6 in the FBI's New York office, you were the unit chief of the
7 telecommunications intercept unit?
8 A. Yes, I was.
9 Q. In that capacity, were you ultimately responsible for the
10 procedures that were used as far as utilizing the Raytheon
11 system?
12 A. Yes.
13 Q. Are you familiar with the kinds of information that the
14 technically trained agents were directed or required to program
15 into the system?
16 A. Yes.
17 Q. What kinds of information did the technically trained
18 agents program into the Raytheon system to use it with a
19 particular telephone number?
20 A. It would have been very similar to the Lockheed Martin
21 system. They would have programmed in the telephone number
22 that we were trying to intercept or that we were intercepting.
23 They would program the court order number, the start and stop
24 times of the court order, the date that this started, that was
25 based on the court order. Sometimes they would include the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3118
476SSAT5 Elliott - direct
1 name of the investigator or the name of the language specialist
2 or analyst that was going to look at the case.
3 Q. Once the Raytheon system was programmed to record calls on
4 a particular telephone number, did it automatically record all
5 calls on that telephone number?
6 A. Yes, it did.
7 Q. Did the Raytheon system, similar to the Lockheed Martin
8 system, have an internal calendar and clock?
9 A. Yes, it did.
10 Q. How did the Raytheon recording system know when to start
11 and stop recording calls on a particular telephone line?
12 A. It was the same as the Lockheed Martin system. It was
13 based upon that tone that was generated by the bridging device
14 that was placed across the telephone line at the telephone
15 pole.
16 Q. Did the Raytheon system automatically record the telephone
17 calls at the times they were actually happening?
18 A. Yes, they were recorded in real time.
19 Q. Let me ask you to explain a term that you used in an answer
20 a few minutes ago and that is the term language specialist.
21 What does that refer to?
22 A. Language specialist is a group of people within the FBI
23 that are translators who speak foreign languages. They listen
24 to the particular foreign language. They would be responsible
25 for doing the gist, just a synopsis of that telephone call, or
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3119
476SSAT5 Elliott - direct
1 a full verbatim transcript of what was heard in that telephone
2 call from that foreign language.
3 Q. When the Raytheon system recorded a telephone call did it
4 also save, along with the audio recording, identifying
5 information relating to that telephone call?
6 A. Yes, it did.
7 Q. What types of identifying information did the Raytheon
8 system save along with the recording of each call?
9 A. It would save the telephone numbers that were called from
10 the target location. It would save the telephone numbers that
11 were calling into the target location. It would record the
12 date and time that that call started, and with this system it
13 would record the date and time that the call ended.
14 Q. And, again, would that information be collectively referred
15 to as signal related information, or SRI?
16 A. Yes.
17 Q. When the Raytheon system initially recorded a telephone
18 call to what component of the system was the call recorded?
19 A. It recorded it to the hard drive just like the Lockheed
20 Martin system.
21 Q. And what types of sounds were included in the audio
22 recordings made by the Raytheon system?
23 A. It would be those sounds that, again, based upon the fact
24 that when the phone would go off hook that voltage drop that we
25 talked about earlier would occur and the bridging device would
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3120
476SSAT5 Elliott - direct
1 cause the tone to go away. You could hear the sounds of dial
2 tone. You could hear someone dialing a telephone or touch
3 toning numbers to dial a phone, and also if they were to speak
4 and they had the phone there you could hear that. So anything
5 that occurred after that phone went off hook you could hear.
6 Q. Again, would that be all the same sounds that the parties
7 to the conversation would hear over their telephones?
8 A. It would be except the person on the far end would not hear
9 me dialing their phone number. They wouldn't hear anything
10 until the phone rang and they answered, of course.
11 Q. When the Raytheon system saved this identifying information
12 relating to each recorded call, was it getting the date and
13 time of the call from the system's own internal clock and
14 calendar?
15 A. Yes, it did.
16 Q. And was this identifying information relating to each call
17 automatically saved by the system at the same time that the
18 call itself was recorded?
19 A. Yes, it was.
20 Q. In what file, computer file format, did the Raytheon system
21 save the recording of the call and the related identifying
22 information?
23 A. It saved it in a file format called .VOC or commonly
24 referred to as .VOC.
25 Q. And was that a file format created specifically by Raytheon
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3121
476SSAT5 Elliott - direct
1 for use with this particular system or was that a commercially
2 available format?
3 A. It was a commercially available format that was produced by
4 a company called Creative Labs and it was posted and put out
5 for people to use if they wanted to. So you could just pick
6 that file format and use it and Creative Labs had a player that
7 would allow to you play that back, a commercially available
8 player.
9 Q. What, if any, modifications were made by Raytheon for use
10 with this system to that commercially available .VOC file
11 format?
12 A. When Creative Labs developed this .VOC file it was
13 developed for the purpose of people using that to insert text
14 into the file. When Raytheon used that on behalf of the FBI we
15 wanted to be able to insert blocks into that file to contain
16 that signal-related information that we talked about, the date
17 and the time and the phone numbers of who was called and who
18 called into the target line.
19 We would have also been able to use that file format
20 to include the synopsis or the transcript if we wanted to so
21 that in the future we would have a single file that would
22 contain everything about that intercepted telephone call from
23 the off hook to the completion of the call and any synopsis or
24 transcript that was used.
25 Q. Within the Raytheon system, was the recording of each call
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3122
476SSAT5 Elliott - direct
1 and the related identifying information copied from the hard
2 drive of the system to any other component of the system?
3 A. Yes, it was.
4 Q. To what other component of the system was the recording and
5 the related information copied?
6 A. Just like in the Lockheed Martin system within 2 hours
7 there will be an archiving of those files from the hard drive
8 to a removable media, and in this particular case it would have
9 been a magneto optical disk.
10 MS. BAKER: May I approach the witness?
11 THE COURT: Yes.
12 Q. Mr. Elliott, I have handed you an item that has been marked
13 for identification as Government Exhibit 1305.
14 Do you recognize that item?
15 A. Yes.
16 Q. What is it?
17 A. It's a magneto optical disk.
18 Q. And was that the type of removable medium that is used or
19 was used by the Raytheon recording system?
20 A. Yes, it is.
21 Q. Is that particular magneto optical disk blank?
22 A. To the best of my knowledge.
23 MS. BAKER: Your Honor, I offer Government Exhibit
24 1305 as a demonstrative exhibit.
25 MR. TIGAR: No objection.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3123
476SSAT5 Elliott - direct
1 THE COURT: All right, Government Exhibit 1305
2 received in evidence as a demonstrative exhibit.
3 (Government's Exhibit 1305 received in evidence)
4 MS. BAKER: Your Honor, may I pass it through the
5 jury?
6 THE COURT: Yes.
7 Q. Mr. Elliott, when the Raytheon system copied each recorded
8 call and its related information from the hard drive to one of
9 the magneto optical disks, were the copies exact copies?
10 A. Yes.
11 Q. Was the file format the same on the magneto optical disk as
12 it had been on the hard drive of the recording system?
13 A. Yes, it was.
14 Q. Did that duplication of the file from the hard drive to the
15 magneto optical disk happen automatically within the system?
16 A. Yes, it did.
17 Q. Over about what period of time after the call actually
18 occurred?
19 A. The system would have been programmed to automatically
20 archive within 2 hours.
21 Q. Aside from any logistical issues that might arise from
22 trying to actually access the magneto optical disks, is there
23 some other reason why the original magneto optical disks could
24 not be used as evidence here in court?
25 A. Yes, the original magneto optical disks, the way we chose
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3124
476SSAT5 Elliott - direct
1 to file intercepted phone calls at that time was again based
2 upon language and we would have a particular language on a
3 magneto optical disk and that could include multiple
4 investigations and not necessarily this investigation in and of
5 itself.
6 Q. In the FBI's New York office is the Raytheon recording
7 system located in the same room where the Lockheed Martin
8 system had been located?
9 A. Yes, it is.
10 Q. Is the access to the Raytheon recording system within the
11 FBI's New York office limited by the same methods that access
12 to the Lockheed Martin system was limited?
13 A. Yes.
14 Q. So that includes both physical access limitations and
15 password protection?
16 A. Yes.
17 Q. Once magneto optical disks are removed from the Raytheon
18 system with recorded telephone calls on them, is access to
19 those used magneto optical disks limited within the FBI's New
20 York office?
21 A. Yes, it is.
22 Q. And is that based on where those disks are stored?
23 A. Yes, it is.
24 Q. As far as you know, do any of the personnel who had access
25 to the magneto optical disks in the FBI's New York office speak
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3125
476SSAT5 Elliott - direct
1 Arabic?
2 A. Not to my knowledge.
3 Q. Is it important to the FBI when conducting telephone
4 surveillance that the calls be recorded accurately?
5 A. Yes.
6 Q. Why is that?
7 A. Primarily as a matter of public safety. It's important to
8 the FBI that we accurately record intercepted telephone calls
9 and under a proper court order.
10 Q. When the FBI decided to purchase the newer system from
11 Raytheon, did the FBI require Raytheon to demonstrate that the
12 system was capable of accurately recording telephone calls?
13 A. Yes, it did.
14 Q. And did Raytheon in fact demonstrate that that system was
15 capable of accurately recording telephone calls?
16 A. As a condition for us to accept that system they would have
17 to accurately do a performance test to show it did work and
18 they did do that.
19 Q. Now, although you were not personally involved in the
20 acquisition of the earlier system from Lockheed Martin, is it
21 your understanding based on what you learned once you became
22 the unit chief, is it your understanding that the FBI similarly
23 required Lockheed Martin to demonstrate that its system was
24 capable of accurately recording telephone calls?
25 MR. TIGAR: Objection, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3126
476SSAT5 Elliott - direct
1 THE COURT: Sustained.
2 Q. Based on your experience during the time that you were unit
3 chief of the telecommunications intercept unit and now that you
4 are the assistant section chief of the electronic surveillance
5 technology system, do these two systems, the Lockheed Martin
6 system and the Raytheon system, accurately record telephone
7 calls?
8 A. Yes --
9 MR. TIGAR: Objection as to form and foundation.
10 THE COURT: All right, rephrase. And foundation.
11 Q. When you were the unit chief of the telecommunication
12 intercept system, were you a person within the FBI who should
13 have been notified if anyone at FBI had reason to believe that
14 one of these recording systems was not accurately recording
15 telephone calls?
16 A. Yes, I would have been.
17 Q. And in your current capacity as assistant section chief of
18 the Electronic Surveillance Technology Section, are you also a
19 person who should be notified if anyone at FBI had reason to
20 believe that the systems were not functioning as they were
21 designed to do and accurately recording calls?
22 A. Yes, I would be.
23 Q. At any time while you held either of these two positions,
24 have you received any information that either of the systems
25 was not accurately recording telephone calls?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3127
476SSAT5 Elliott - direct
1 A. I did not.
2 Q. What experiences or what information have you received in
3 your capacity as unit chief of the telecommunications intercept
4 unit and in your current capacity as assistant section chief of
5 the Electronic Surveillance Technology Section that
6 demonstrates that these systems do accurately record telephone
7 calls?
8 MR. TIGAR: Objection, your Honor.
9 THE COURT: Basis?
10 MR. TIGAR: Hearsay, personal knowledge.
11 THE COURT: Rephrase the question then as a single
12 question.
13 Q. Without going into the underlying information at this time,
14 in your opinion, do these two systems or did these two systems
15 accurately record telephone calls?
16 A. Yes.
17 Q. After the Lockheed Martin system ceased to be used in the
18 FBI's New York office, was it disassembled?
19 A. Yes, it was.
20 Q. Why was that done?
21 A. We removed the system because it was very large and it was
22 taking up floor space for us and since we were no longer going
23 to record telephone calls on that system, there was no need to
24 keep it on the floor space since we were bringing in the new
25 Raytheon system.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3128
476SSAT5 Elliott - direct
1 Q. Was it necessary for security and other logistical reasons
2 to put the Raytheon system into the same room in the FBI's New
3 York office where the Lockheed Martin system had been?
4 A. That is the only location in the New York FBI office that
5 we can put such a system to afford it the physical security and
6 the passport security necessary for these systems. So it would
7 have to have gone into that same room.
8 Q. Since the Lockheed Martin system was disassembled, is the
9 FBI able to use recordings that were made by that system in
10 their original proprietary file format?
11 A. No, we are not.
12 Q. Since the Lockheed Martin system was disassembled, how has
13 the FBI used recordings made by that system?
14 A. We would convert that Lockheed Martin file format to the
15 .VOC file format so that we could play it through our Raytheon
16 systems and with that commercial gold .WAV player.
17 Q. What role, if any, did you play in the decision that the
18 Lockheed Martin files would be converted to the .VOC format
19 used by the Raytheon system?
20 A. I made that decision.
21 Q. Did you also direct that that decision be implemented by
22 other personnel within FBI?
23 A. Yes.
24 Q. As part of the implementation of that decision, did you
25 make clear that once converted that the content of the files,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3129
476SSAT5 Elliott - direct
1 the actual contents of the telephone conversations, had to
2 remain unchanged by the conversion process?
3 A. Yes.
4 Q. I would like to ask you to tell the jury a little bit about
5 that conversion process but let me ask you first, did you
6 provide a diagram that would assist you in giving that
7 explanation?
8 A. Yes, I did.
9 Q. Ms. Griffith, would you please display just to the witness
10 and counsel Government Exhibit 1309.
11 Mr. Elliott, do you recognize Government Exhibit 1309?
12 A. Yes.
13 Q. Is that the diagram that you provided that relates to the
14 conversion process?
15 A. Yes.
16 Q. Would that diagram in fact assist you in explaining that to
17 the jury?
18 A. Yes, it would.
19 MS. BAKER: Your Honor, I offer Government Exhibit
20 1309 as a demonstrative exhibit.
21 MR. TIGAR: No objection, your Honor.
22 THE COURT: Government Exhibit 1309 received in
23 evidence as a demonstrative.
24 (Government's Exhibit 1309 received in evidence)
25 MS. BAKER: May we publish it to the jury?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3130
476SSAT5 Elliott - direct
1 THE COURT: Yes.
2 Q. Ms. Griffith, if you would enlarge for now the top portion
3 of the exhibit.
4 Mr. Elliott, if you would -- and please refer to
5 Government Exhibit 1309 to the extent it helps you -- please
6 explain to the jury generally how the conversion was carried
7 out from the Lockheed Martin file format to the file format
8 used by the Raytheon system and, Ms. Griffith, I will ask you
9 to try to scroll down as the witness' testimony progresses to
10 follow along on the diagram.
11 A. The Lockheed Martin files were on that 8 millimeter tape,
12 an example of which we showed here today. That 8 millimeter
13 tape was put into a player and those files or phone calls were
14 played into a computer. If the Lockheed Martin system was
15 broken into, when you look at the file format there they were
16 really like building blocks. The first building block
17 contained signal-related information. The information we
18 talked about today that was some stuff that was put in by the
19 system administrator, like the name and the date and the phone
20 number, and it would also have other information in there about
21 the start time of the call, the stop time of the call or the
22 start of the call and the length of the call.
23 The next part of that building block would be the
24 content or the audio of the call itself. And that was
25 compressed in the Lockheed Martin file. It was compressed on a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3131
476SSAT5 Elliott - direct
1 4 to 1 ratio. It was four times smaller than the actual file
2 itself. When we played that into our computer to do the
3 conversion, we separated those two blocks. We separated the
4 signal-related information from the content because the .VOC
5 file does not compress the audio. It doesn't do anything to
6 the audio. It takes it as it is and it sticks it in a slot so
7 it can play it back later on a commercial player. We
8 decompressed that content from the Lockheed Martin file and so
9 we could place it into the .VOC file of the format. And that
10 was done and placed on the hard drive of that conversion
11 computer.
12 Q. And is that the middle portion of what is shown on
13 Government Exhibit 1309?
14 A. Yes, the part that is the blue screen of that
15 representative of the computer there, that was really a flow
16 diagram of what was happening in this conversion process.
17 Q. And once you had those two components onto the hard drive
18 of the conversion computer -- the two components being the
19 audio recording and the signal-related information -- what was
20 the next step in the process?
21 A. Well, the next step in the process is to take it to
22 removable media. We had a magneto optical disk array or a
23 jukebox with a lot of magneto optical disks in it and it's just
24 a matter of copying that from the hard drive over to one of
25 those magneto optical disks just like you would copy a letter
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3132
476SSAT5 Elliott - direct
1 that you have written on the hard drive of your computer to a
2 floppy disk to share with someone else. It was the same
3 process.
4 Q. And when that process was complete were the files from the
5 Lockheed Martin system now in the Raytheon file format on the
6 MO disks?
7 A. Yes, they were.
8 Q. In your opinion, based on the directions that you gave with
9 respect to the conversion process and what was reported back to
10 you about the conversion process, was the content of the files,
11 what was actually heard in the telephone calls, unchanged at
12 the end of this conversion process?
13 A. That was the requirement of this conversion process is that
14 it would have to be an exact duplicate of --
15 MR. TIGAR: Your Honor, objection. He was asked his
16 opinion not about the requirement.
17 THE COURT: All right. Yes.
18 Q. In your opinion, was the content as far as what was heard
19 in the audio recording unchanged at the end of the conversion
20 process?
21 A. Yes.
22 Q. And is that opinion based in part on the instructions or
23 direction that you gave to the people who implemented the
24 conversion?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3133
476SSAT5 Elliott - direct
1 Q. And is that opinion based in part on information that you
2 received back from the people who carried out the conversion?
3 A. Yes, it was.
4 Q. As you understand it, if there were to be a failure of that
5 decompression process, what you have just described as part of
6 the conversion, what would be the result as far as what would
7 or wouldn't be in the resulting new file?
8 A. The way I understand it as this decompression occurred, if
9 the decompression was done correctly we would have audio, a
10 file that we could play back. If there was a mistake made in
11 the decompression of that or even in the copying of that to a
12 removable disk, there would be nothing there. There would be
13 nothing to play back. So when we went through this process we
14 were able to show that the decompression worked because we
15 actually had audio on the disk and it was the same audio that
16 was on the original Lockheed Martin 8 millimeter tapes.
17 Q. Ms. Griffith, if you would take that exhibit down please
18 and show just to the witness and counsel Government Exhibit
19 1001N.
20 If you would please enlarge the top half of that page.
21 Mr. Elliott, I am showing you again the document
22 marked for identification as Government Exhibit 1001N.
23 Do you recognize that document?
24 A. Yes.
25 Q. What is that document?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3134
476SSAT5 Elliott - direct
1 A. It would be the signal-related information that is
2 contained in that header block of a .VOC file that was created
3 from the conversion from the Lockheed Martin format to the .VOC
4 format and I say that based upon the day that the session
5 starts and the fact it shows the .VOC version.
6 MS. BAKER: Your Honor, I offer Government Exhibit
7 1001N.
8 MR. TIGAR: No objection, your Honor.
9 THE COURT: Government Exhibit 1001N received in
10 evidence.
11 (Government's Exhibit 1001N received in evidence)
12 MS. BAKER: May we publish it to the jury?
13 THE COURT: Yes.
14 Q. Mr. Elliott, does this printout show the kinds of
15 information that you referred to in your testimony as
16 signal-related information?
17 A. Yes, it does.
18 Q. And this is the identifying information that each of the
19 systems would save automatically along with each recorded call?
20 A. Yes.
21 Q. As far as the format of this information as it appears in
22 Government Exhibit 1001N, is that the format in which the
23 information appeared in the files created by the Raytheon
24 system?
25 A. This would be the format.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3135
476SSAT5 Elliott - direct
1 Q. Let me direct your attention to a line about a third of the
2 way down that front page of Government Exhibit 1001N. There is
3 a line that starts with the phrase "session start" and then
4 there is an equal sign.
5 Do you see that line?
6 A. Yes.
7 Q. After that equal sign there is a string of digits.
8 Can you explain to the jury what that string of digits
9 represents?
10 A. It represents a date.
11 Q. In what form?
12 A. I am not sure what that form is called. It starts out with
13 the year and then it would give you the month and the date that
14 that occurred.
15 Q. Let's just walk through the string of digits. How many
16 digits, first, are the year?
17 A. It would be 1996.
18 Q. The first four digits are the year?
19 A. Yes.
20 Q. And then what is next after that?
21 A. I think next would be the month and date.
22 Q. Two digits each for the month and date?
23 A. Yes.
24 Q. And then there are six digits left in that immediate
25 string. What does that represent?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3136
476SSAT5 Elliott - direct
1 A. That would probably represent the hour, the minute --
2 MR. TIGAR: Objection.
3 THE COURT: Sustained.
4 Q. You testified earlier that each of the systems would
5 associate with each recording the start date and time of the
6 call?
7 A. Yes.
8 Q. And that information came from where within each of the
9 systems?
10 A. It comes from the internal clock and calendar within the
11 system.
12 Q. Directing your attention back up on that exhibit to the
13 seventh line down from the top of the page, there is a line
14 that begins with TNUM equals.
15 A. Yes.
16 Q. What is the information that appears in that field?
17 A. Those are telephone numbers.
18 Q. Now, you testified that this format for the information is
19 the format that was used by the Raytheon system, correct?
20 A. It's the format that was used by the Lockheed Martin system
21 that we could import into the Raytheon file format. So these
22 were the Raytheon slots that were available for information and
23 then we would extract that information from the Lockheed Martin
24 file and put it into it. So this is now in a .VOC format.
25 Q. Assuming that this call was actually recorded on a date in
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3137
476SSAT5 Elliott - direct
1 1996, if that is true, then it was recorded by the Lockheed
2 Martin system, correct?
3 A. That is correct.
4 Q. And when the files from the Lockheed Martin system were
5 converted to the Raytheon .VOC format, did that conversion
6 carry through the signal-related or identifying information
7 along with the audio recording of the call?
8 A. Yes, it did.
9 Q. Did it carry that information through without changing the
10 substance of it understanding that it might have reorganized
11 it, but as far as the substance of the information did that
12 remain unchanged?
13 A. It did not change the substance of the information.
14 Q. Thank you, Ms. Griffith. You can take that down.
15 You testified earlier that each of the two systems,
16 Lockheed Martin and Raytheon, when they recorded the telephone
17 calls would record all of the sound that came over the
18 telephone line, correct?
19 A. Yes.
20 Q. And you testified earlier that that could include -- if,
21 for example, it were an outgoing call -- the sound of touch
22 tone dialing?
23 A. Yes.
24 Q. Does the Raytheon system include technology that can
25 convert those touch tone sounds to digits so that someone using
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3138
476SSAT5 Elliott - direct
1 the Raytheon system could listen to a recorded telephone call
2 could see, for example, the telephone number that was dialed by
3 the person placing the call?
4 A. Yes, it does.
5 Q. Could you describe for the jury generally how that
6 technology work?
7 A. As you dial the telephone number it emits a sound and it's
8 known in the telephone industry as a DTMF or dual tone multiple
9 frequency sound. The Raytheon system has the ability to listen
10 to those sounds and turn them back into the phone numbers that
11 were dialed. So if you dialed 555-1234, the Raytheon system
12 would hear those tones or even the dialed rotary digits if you
13 had one of those old rotary phones, and it would convert those
14 back to the phone number that was dialed.
15 Q. Was that a feature of the Raytheon system that the FBI
16 required of Raytheon be accurate in its functioning?
17 A. Yes.
18 Q. In your opinion, does that component of the Raytheon system
19 function accurately to accurately translate dialed numbers to
20 their digits?
21 A. Yes, it does.
22 Q. How does the Raytheon system provide that information to
23 someone who is using the system to listen to a recorded call?
24 A. Through the graphical user interface or setting at a
25 computer screen, much like the one that sets here to my right.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3139
476SSAT5 Elliott - direct
1 The telephone numbers would appear there along with a play back
2 station, much like on a play back station from an online stereo
3 or playing audio from the Internet, and you would have the
4 ability to play that audio and listen to it and at the same
5 time you could see the phone numbers that were there of who the
6 target called and who called the target. It would be a part of
7 that file.
8 MS. BAKER: Your Honor, may I have a minute?
9 THE COURT: Yes.
10 (Pause)
11 Q. I want to clarify a little bit the subject that we were
12 just discussing.
13 Where the FBI is using one of these systems to record
14 calls on the target telephone and the target telephone receives
15 an incoming call from another phone, would it be the case that
16 the sound in the recording would begin with the answering of
17 the telephone?
18 A. Yes, when the phone was answered it would go off hook and
19 that is when you would start to hear the sound. The on and off
20 recording is all based upon the on hook and off hook of the
21 target telephone. It doesn't matter what the person calling in
22 does. That telephone has to go off hook for recording to
23 start.
24 Q. So a recording of an incoming call would not begin with the
25 sound of that other person dialing the target telephone number?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3140
476SSAT5 Elliott - direct
1 A. No, it would not.
2 Q. Did these recording systems that you have been testifying
3 about have some feature that enabled them, at least in some
4 instances, to determine the telephone number from which an
5 incoming call was being placed?
6 A. Yes.
7 Q. Does that technology always allow the incoming number to be
8 detected or are there some instances in which the incoming
9 number is not detectable by these systems?
10 A. There are some instances in which it is not detected.
11 Q. Could you give some examples?
12 A. Yes. An example would be if the target number has caller
13 ID and they have that activated, then whatever they are
14 activated has a special calling feature when someone calls into
15 them, then they would get the number of that caller ID as a
16 part of that intercept. If the person on the far side blocked
17 their calling ID, in other words, I want to call you but I
18 don't want to send my phone number to your calling ID system,
19 they can block that and in that case it would not be sent and
20 we would not receive the telephone number of the party calling
21 into the target phone.
22 Q. In your experience, is there any difference as far as the
23 ability of these systems to determine incoming telephone
24 numbers in whether the calls are coming from another country or
25 not?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3141
476SSAT5 Elliott - direct
1 A. Yes, sometimes the other countries pass their
2 signal-related information with the telephone calls and you are
3 able to determine from that in fact that it is a phone call
4 from outside the country.
5 Q. But in some instances that is not the case?
6 A. Yes, in many instances it's not the case because there is a
7 reverse marketing scheme at play here. The foreign countries
8 don't want to send the telephone numbers over because the
9 telephone companies can get those numbers and actually try to
10 market back to them. So that is the reason many of them don't
11 send the phone numbers.
12 Q. You testified earlier that it's your opinion that these two
13 systems in fact accurately recorded telephone calls on the
14 numbers that they were used to monitor. What is the basis for
15 that opinion?
16 A. Well, as a matter of just pure buying these systems the FBI
17 could not, and would not, accept either of those systems had
18 they not have been built to the requirements that were laid out
19 as to the fact that they had to accurately record the audio and
20 accurately record the telephone numbers that were going in and
21 out of the target phone.
22 But also from a practical point of view, we go to the
23 telephone company and subpoena the billing records from a
24 target telephone and we compare those billing records to the
25 intercepted phone records and they line up and they match. And
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3142
476SSAT5 Elliott - direct
1 also we have had instances where the recorded voice from these
2 systems have been played in court just like here, and the
3 defendant has heard their own voice played back to them in
4 court and in some cases I am aware that they have pled guilty
5 to the fact that they have heard their voice played in court
6 thus saying that, yes, that is accurate, it is my voice that is
7 being played back on these systems.
8 MS. BAKER: Thank you.
9 I have no further questions at this time.
10 THE COURT: All right.
11 MR. TIGAR: May I inquire, your Honor?
12 THE COURT: Yes, Mr. Tigar, you may.
13 CROSS EXAMINATION
14 BY MR. TIGAR:
15 Q. Mr. Elliott, I want to begin --
16 MR. TIGAR: Your Honor, may I show an Exhibit 1309?
17 THE COURT: All right.
18 Q. I want to put this up on the screen and I hope it appears.
19 This is a document, and did you prepare this document,
20 sir?
21 A. I did not actually make the document. It was prepared for
22 me.
23 Q. But you know that it's accurate, correct?
24 A. To the best of my knowledge.
25 Q. Now, at the top here, I am going to zoom in further, and we
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3143
476SSAT5 Elliott - cross
1 are talking in this document about how Lockheed Martin files
2 were converted, correct?
3 A. Yes.
4 Q. Now, the Lockheed Martin system was in operation in the New
5 York field office until the middle of the year 2000, is that
6 right?
7 A. Between 2000 and 2001.
8 Q. And when a call would be captured by that system, it would
9 be captured on a hard drive, correct?
10 A. Yes.
11 Q. And a hard drive, as you said, is what everybody that has a
12 computer pretty much has these days, right?
13 A. Yes.
14 Q. It's usually your C drive is your hard drive, right?
15 A. Yes.
16 Q. Now, then, after a time this hard drive file would be
17 copied to some 8 millimeter tape, correct?
18 A. Yes.
19 Q. Now, the 8 millimeter tape that the jurors saw this
20 morning, you can buy those at Staples, can't you?
21 A. I don't know. But you can buy them at stores.
22 Q. I mean, it's an item in common commercial use, correct?
23 A. I think so, yes.
24 Q. And the SRI or signal-related information, at what point
25 was that added to the audio file that was created by recording
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3144
476SSAT5 Elliott - cross
1 the phone conversation?
2 A. The way I understand it to happen, when the phone call is
3 being recorded, the SRI and the call content are being recorded
4 at the the same time into this file format.
5 Q. Now, you said on direct examination that the system
6 administrator had something to do with the SRI. In the
7 Lockheed Martin system what did the system administrator have
8 to do with it?
9 A. Well, someone has to go into the Lockheed Martin system and
10 program it, prepare it to record an intercepted phone call. So
11 the system administrator would go in and say this is the case,
12 this is the phone number we are intercepting against, this is
13 the court order number, or this is the date and time that the
14 court order is going to start and stop, and that information
15 would be added by the system administrator so that when that
16 tone was received later on, then it would know to turn that
17 recording on and off.
18 Q. Now, were you the supervisor of system administrators
19 during any of this period from '96 to the middle of 2000?
20 A. No, I was not.
21 Q. Do you know whether the system administrators had written
22 instructions as to how they were supposed to do their jobs?
23 A. I do not know.
24 Q. Was it your job to brief system administrators on how to do
25 their jobs?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3145
476SSAT5 Elliott - cross
1 A. No, that would have been the responsibility of each
2 individual field office in the FBI.
3 Q. So as you sit there today you don't know exactly what
4 instructions they were given, correct?
5 A. I never sat in on one of those classes.
6 Q. Now, after SRI -- I guess we can see these words, let me
7 see if I can get in further here, let it focus -- it says
8 "compressed content," right?
9 A. Yes.
10 Q. What does that mean?
11 A. That is the audio or the part of the phone call that you
12 hear from the time the telephone goes off hook until the time
13 it goes on hook. That is actually what is being recorded as
14 you would think of as the conversation and it would include
15 those things like that were there that you were listening to
16 like the dial digits or dial tone, anything that occurred
17 during the time the phone went off hook until it went on hook.
18 (Continued on next page)
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3146
476LSAT6 Elliott - cross
1 BY MR. TIGAR:
2 Q. Well, when did it get compressed?
3 A. It was compressed as it was recorded to the -- after it
4 was -- as a part of that recording it to the hard drive, the
5 compression occurred.
6 Q. You say it was compressed by a factor of four, correct?
7 A. Yeah, that's what I was told.
8 Q. Who told you that?
9 A. From the engineers who were working on this, building this
10 conversion system.
11 Q. Well, is it your understanding that compression means that
12 a file used to be big and now it's smaller?
13 A. That's correct.
14 Q. Well, where was the big file before it got made small?
15 A. Well, it was recorded to that hard drive there, in the
16 bigger format.
17 Q. When was it compressed?
18 A. I believe it would have been compressed when it was moved
19 to that eight millimeter tape.
20 Q. So the eight millimeter tapes contain something that's one
21 fourth as large as the file recorded on the hard drive; is that
22 your understanding?
23 A. If it were a four to one compression, that would be
24 mathematically correct.
25 Q. You said if. But you testified on direct it was a four to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3147
476LSAT6 Elliott - cross
1 one compression, didn't you?
2 A. Yes.
3 Q. Well, that's true, isn't it?
4 A. Yes.
5 Q. Now, do you know of a program that was used to compress
6 these things down to one fourth their original size?
7 A. No, I don't.
8 Q. Well, now, on your home computer, you use a file
9 compression system, don't you?
10 A. I don't.
11 Q. Well, have you ever heard of WinZip?
12 A. Yes, I know what WinZip is.
13 Q. WinZip is a file compression system, isn't it?
14 A. Yes.
15 Q. And if you use WinZip, you get back your original file just
16 like it was, right?
17 A. Yes.
18 Q. Well, that's now -- earlier I asked you about lossless and
19 lossy systems, correct?
20 A. Yes, you did.
21 Q. Have you ever heard those terms before?
22 A. I have heard those terms.
23 Q. So WinZip is a lossless compression system, isn't it?
24 MS. BAKER: Objection.
25 THE COURT: Sustained.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3148
476LSAT6 Elliott - cross
1 Q. Do you know whether or not WinZip is a lossless compression
2 system?
3 A. I do not know.
4 Q. Do you know whether or not the system used to shrink these
5 Lockheed Martin files down to one fourth their original size
6 was a lossy system or a lossless system?
7 A. I don't know.
8 Q. And a lossy system, to your understanding, means something
9 that loses data, correct?
10 A. I don't think that's what it means.
11 Q. Well, what do you think it means?
12 A. I think that it means that you want to reduce the size of
13 that file so you can save it on disk, much like today. If I
14 were wanting to move a photograph of our new baby to grandma
15 and grandpa's house, I could use that WinZip file, and I don't
16 need to know anything about WinZip. You know, I've never
17 worked there, I don't know anything about it. But I know I can
18 zip those photographs up, and I can send them to grandma and
19 grandpa and they can apply WinZip on their side and they can
20 unzip them and they get the same photograph.
21 The good thing is they're not going to get a
22 photograph of somebody else's baby; they're only going to get
23 the picture that I sent. If I made a mistake in zipping them
24 or if there was any corruption occurred within the transfer of
25 those across the Internet or if they make a mistake in trying
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3149
476LSAT6 Elliott - cross
1 to apply the unzip technique, they wouldn't get anything. But
2 if that's done correctly, they would get the pictures of the
3 new baby.
4 Q. Now, you've just told us how WinZip works, correct?
5 A. To the best of my knowledge, yes.
6 Q. Do you know what the difference, since you're talking about
7 photographs, do you know what the difference is between a .jpg
8 and a .bmp file?
9 A. A .jpg file is a picture.
10 Q. A picture. Do you know what a difference between a .jpg
11 and a .bmp with respect to file size in your picture?
12 A. I didn't hear the question.
13 Q. Do you know the difference between a .jpg and a .bmp with
14 respect to file compression?
15 MS. BAKER: Objection. Relevance.
16 THE COURT: Overruled.
17 A. A .jpg and a .bmp -- a bit map? Is that what you're
18 referring to?
19 Q. Yes.
20 A. Those are two file formats that you use to store
21 photographs like I do in a genealogy file or something like
22 that. And .jpg files can tend to be large.
23 Q. Is it your understanding, Sir, that there's some
24 degradation of picture quality as you go from a .bmp to a .jpg?
25 MS. BAKER: Objection. Relevance.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3150
476LSAT6 Elliott - cross
1 THE COURT: Sustained.
2 Q. As you sit there today, do you know what program was used
3 to shrink the Lockheed Martin hard drive files by a factor of
4 four?
5 MS. BAKER: Objection. Asked and answered.
6 THE COURT: Overruled.
7 A. I do not know what that program was. I know only that it
8 was a Lockheed Martin proprietary file. That's all I know.
9 Q. Who would know?
10 A. I don't know. There's -- Lockheed Martin no longer
11 supports this system.
12 Q. And it's your testimony, isn't it, Sir, that all the
13 original unshrunk files from the period of 1996 to the middle
14 of 2000 have been erased, correct?
15 A. No, they have not been erased.
16 Q. Well, where's the files -- the files on the hard drive?
17 A. That's correct.
18 Q. I'm calling that the original format. Are we together now?
19 That's the original, okay?
20 A. Okay.
21 Q. And that's the original because it was the first time a
22 recording took place, correct?
23 A. Okay.
24 Q. Those hard drives were written over, weren't they?
25 A. Yes, they were.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3151
476LSAT6 Elliott - cross
1 Q. And now what's left is what's on those eight millimeter
2 tapes, correct?
3 A. That's correct.
4 Q. And what's on those eight millimeter tapes is one fourth
5 the size of what was on that hard drive originally, correct?
6 A. Yes.
7 Q. Now, I'd like to go back and ask about some of these
8 machines. You say this Lockheed Martin system was in a secure
9 place, correct?
10 A. Yes, it is -- it was.
11 Q. Now, after you made these little eight -- these eight
12 millimeter tapes, were they stored in that same secure place?
13 A. They would be stored for a period of time there, and then
14 they would be stored in another secure facility based upon each
15 individual field office's decision to do so.
16 Q. Now, once the eight millimeter tapes were created, the FBI
17 personnel would be able to go and get those and listen to
18 conversations, correct?
19 A. Well, not just any FBI people.
20 Q. I didn't say just any. We'll get you there. Some FBI
21 people that we're going to be talk about would be able to get
22 them?
23 A. Yes.
24 Q. This hypothetical, suppose there's a conversation recorded
25 in the Lockheed Martin system. It's been placed on the eight
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3152
476LSAT6 Elliott - cross
1 millimeter tape, and an agent wants to get access to it. What
2 does that agent have to do to be able to get it?
3 A. Well, it would be unusual for an agent to get access to
4 that, because it would be of a foreign language and more than
5 likely that agent wouldn't speak that foreign language.
6 Q. Let me change the question. Suppose someone working for
7 the FBI who wanted to listen to it, in the course of their
8 duties, wanted access to it. How would they get it?
9 A. You would contact the system administrator and ask for a
10 particular session or telephone call to be available so that it
11 could be listened to on the system, or on the current system.
12 Q. And then what would happen?
13 A. They would go to where that particular eight millimeter
14 tape -- first of all, you look it up and see which eight
15 millimeter tape it's on. And then they would go take that
16 tape, reload that phone call into the system where the language
17 specialist would be able to access --
18 Q. Help me. When you say reload into the system, you mean
19 you'd take that tape and put it in a CPU or something?
20 A. Well --
21 Q. I don't know what words --
22 A. I'm trying to talk in past tense.
23 Q. I understand.
24 A. If this were a time when the Lockheed Martin system was
25 online.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3153
476LSAT6 Elliott - cross
1 Q. Uh-huh.
2 A. In New York. They would take that eight millimeter tape,
3 you would come back to a drive that you could put the eight
4 millimeter tape into, and you could play that back into the
5 system and it would put it back onto the hard drive because it
6 was from the hard drive that the language specialist or
7 translator would listen to that phone call.
8 Q. And then after you did that, put it on the hard drive, and
9 after you were done with it on the hard drive, what would you
10 do, erase it back off there?
11 A. Yeah, it would be overwritten. There would be no need to
12 keep it on the hard drive for anyone.
13 Q. Now, is there a record of who got access to these digital
14 files between the time they were recorded and the time that
15 they were processed into .voc files?
16 A. That would be the responsibility of the FBI field office
17 that was conducting the surveillance to have kept those kind of
18 records.
19 Q. Do you know if such records were kept?
20 A. It would not have been my responsibility to have kept those
21 records. It would have been their responsibility, and in this
22 case, it would have been the New York field office.
23 Q. Well, do you know, Sir, that there was some concern about
24 the ease with which digital files could be transferred from one
25 place to another in the 2000, 2001 period?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3154
476LSAT6 Elliott - cross
1 MS. BAKER: Objection.
2 THE COURT: Basis?
3 MS. BAKER: Form; foundation.
4 THE COURT: Overruled.
5 A. Would you repeat the question, please?
6 Q. Do you know, Sir, whether there was some concern in the
7 2000, 2001 period about the ease with which digital files could
8 be transmitted from one place to another?
9 MS. BAKER: Objection. Ambiguous. "Concern", by
10 whom?
11 THE COURT: All right.
12 A. I --
13 MR. TIGAR: I withdraw the question, your Honor.
14 BY MR. TIGAR:
15 Q. Were you interviewed by a publication called GCN in or
16 about February, 2001?
17 A. I don't recall if I was or not. I have done a few
18 interviews in my life, but I don't recall.
19 Q. Were you interviewed in or about February, 2001 about the
20 FBI's changeover to a digital system?
21 MS. BAKER: Objection. Relevance.
22 THE COURT: Overruled.
23 A. Yes, I conducted a telephone interview about a changeover
24 to a digital system.
25 Q. And you said that the FBI as a whole was going to transfer
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3155
476LSAT6 Elliott - cross
1 to digital by 2003, correct?
2 MS. BAKER: Objection. Relevance.
3 THE COURT: Ladies and gentlemen, this is a good time
4 for us to take our mid afternoon break. We'll break for 10
5 minutes. Please follow my continuing instruction not to talk
6 about the case.
7 All rise, please.
8 (The jury exits the courtroom)
9 THE COURT: The witness is excused.
10 MR. TIGAR: Would you please admonish the witness?
11 THE COURT: Yes. You're in the middle of
12 cross-examination, so you shouldn't be talking to anyone about
13 your testimony.
14 THE WITNESS: Okay. Thank you.
15 (Witness leaves the courtroom)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3156
476LSAT6 Elliott - cross
1 (In open court; jury not present)
2 MS. BAKER: Your Honor, I'm not familiar with the
3 particular interview that Mr. Tigar is referring to, but he has
4 not established whether in that interview the witness was
5 referring to the same system or systems or the same sets of
6 digital data that are at issue in this case, and if he's
7 referring to some completely other system, it's not relevant,
8 and is confusing. I will proffer to the Court that this
9 witness has or has had at various points in time
10 responsibilities relating to the systems that the FBI uses to
11 conduct Title III criminal wiretaps. But those are obviously
12 not the same systems at issue in this case.
13 THE COURT: Okay. Mr. Tigar?
14 MR. TIGAR: The article in question of February 19,
15 2001, was attached as Exhibit F to my declaration which was
16 filed with the Court under seal on the 29th of September, 2003.
17 It is an article relating to replacing analogue wire-tapping
18 equipment with digital systems in all 56 field offices. And
19 where I'm going, your Honor, with this is the problem with
20 digital files is -- well, I don't have to explain. I submit
21 that it was a proper question.
22 THE COURT: The problem, as I understand it, and the
23 parties can correct me if I'm wrong, I thought that the witness
24 testified to the existence of the Lockheed Martin system in two
25 field offices, New York and Los Angeles, which would mean that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3157
476LSAT6 Elliott - cross
1 the quote that you're talking about with respect to replacing
2 the systems in 56 offices really couldn't be relating to the
3 system that he was just testifying about. So if there are
4 concerns that he expressed with respect to these systems that
5 he's testified about, you're certainly welcome to explore that.
6 But it does appear to me, at least from what you've
7 told me so far, that he's referring to a different system.
8 MR. TIGAR: Before I go further, I will lay a
9 foundation. And -- but I will also say, your Honor, I had a
10 destination in mind with this line. I will take a different
11 route entirely.
12 THE COURT: Okay.
13 MR. TIGAR: And avoid these problems.
14 THE COURT: Okay. We'll take 10 minutes.
15 (Afternoon recess)
16 THE COURT: All right. Bring the jury in.
17 (Continued on next page)
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3158
476LSAT6 Elliott - cross
1 (In open court)
2 THE COURT: All right. Please be seated all. The
3 witness is on the stand, Mr. Fletcher.
4 DEPUTY CLERK: Agent Elliott, you're reminded you're
5 still under oath.
6 THE WITNESS: Yes.
7 THE COURT: All right. Thank you.
8 BY MR. TIGAR:
9 Q. Before the break, Sir, we were talking about how you would,
10 an agent or someone working for the FBI, would be able to
11 listen to a file, and on the Lockheed Martin system that would
12 be by loading that tape, the eight millimeter tape, back into
13 the system. Then they could work it, right?
14 A. Yes.
15 Q. Now, there are thousands of audio interceptions that are
16 related to this case, is that your understanding?
17 A. Yes.
18 Q. And some are in English and some are not, correct?
19 A. I don't know that. I just know that there are some in a
20 foreign language that I don't -- I'm not even sure of the
21 language.
22 Q. Now, when we move over to the Raytheon system, if someone,
23 an agent, someone who was authorized, wanted to work with one
24 of those, how would they do it?
25 A. It would be the same process: They would take one of those
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3159
476LSAT6 Elliott - cross
1 magneto optical disks and you could load it back on the hard
2 drive if it had been a long period of time since it had been
3 automatically archived.
4 Q. And by long period of time you mean if it had been erased
5 off the hard drive?
6 A. Yes.
7 Q. During the time, up until April of 2002, did the Bureau
8 have the capability to transmit these digital files other than
9 by the method you've described?
10 A. I don't understand what you're asking.
11 Q. Was Casa De Web up and running during any of this time?
12 MS. BAKER: Objection, relevance.
13 THE COURT: Foundation?
14 MR. TIGAR: I'm asking about a file access system
15 that's other than the one he's described, your Honor.
16 THE COURT: All right.
17 A. Would you repeat the question, please?
18 Q. Was Casa De Web up and one during this time?
19 A. Casa De Web is still up and running.
20 Q. So was there in place, any method, to send these digital
21 files out over the Internet or otherwise in existence up before
22 April of 2002?
23 A. Yes.
24 Q. Well, with respect to the files that are at issue in this
25 case, do you know whether any of those were transmitted outside
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3160
476LSAT6 Elliott - cross
1 the New York field office so that they could be worked with or
2 accessed other than by the two methods you've described, that
3 is, other than by listening to the tape or listening to the
4 disk?
5 A. No, I don't know.
6 Q. Now, Sir, I'd like to go back and talk about this Lockheed
7 Martin system. There were a certain number of computers with a
8 certain number of hard drives in the New York field office,
9 correct?
10 A. That was the Lockheed Martin system, correct.
11 Q. And the internal clock on those systems to be programmed by
12 a human, correct?
13 A. Yes.
14 Q. And the maintenance on these hard drives would be performed
15 by technicians, correct?
16 A. Yes.
17 Q. Do you know if there were ever any crashes desiring the
18 period of time from 1996 to 2000?
19 A. What do you mean by "crashes"?
20 Q. Well, has your -- do you know what a computer crash is?
21 A. Yes.
22 Q. Okay. And what is it that you understand?
23 A. Something would infect your hard drive and cause the hard
24 drive to no longer work, meaning it would no longer store a
25 file and keep a file.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3161
476LSAT6 Elliott - cross
1 Q. Do you know if any computer crashes happened to any of
2 these Lockheed Martin hard drive machines between 1996 and the
3 middle of 2000?
4 A. I have no direct knowledge that there were crashes as we
5 discussed, yes.
6 Q. In the ordinary course of the FBI's business, would there
7 be maintenance logs that reflected whether or not there were
8 crashes?
9 A. I don't know. That would again be the responsibility of
10 the FBI field office. They managed that system.
11 Q. Now, as a person who has a position that you described to
12 us, you were interested in the accurate obtaining and reliable
13 safeguarding of law-enforcement-related information, were you
14 not?
15 A. What do you mean by law-enforcement-related information?
16 Q. Your job in law enforcement was to record people's
17 telephone calls, right?
18 A. As authorized by the Court, yes.
19 Q. Yes. And you were interested in making sure that when you
20 recorded some phone call, some person in the house making a
21 call, that the recording was done accurately, correct?
22 A. Yes.
23 Q. And then once it was recorded, you were interested in it
24 being stored safely, right?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3162
476LSAT6 Elliott - cross
1 Q. Because you knew that sometime in the future maybe that
2 information would be required to be used in a case, right?
3 A. Yes.
4 Q. And the case might involve the liberty of some person that
5 was on trial, correct?
6 A. Yes.
7 Q. Now, as a part of your job, did you give any direction that
8 people that were working on these things were supposed to keep
9 logs that shows how these machines were working and if there
10 were any problems with them?
11 A. Well, when you say did I give directions, I don't supervise
12 the people who work in the FBI field office who manage the
13 system. My responsibility at the time of the Lockheed Martin
14 system and the Raytheon system was as the unit chief
15 responsible for procuring and providing that capability to the
16 field. Yes, as a normal course of business, there would be
17 maintenance on these systems. And they would keep some sort of
18 idea of what this maintenance was. I did not ask for those
19 logs or produce those logs. I don't know.
20 Q. Well, if an agent had come to work and had discovered that
21 one of the computers was not functioning properly, would it be
22 that agent's job to tell you about that?
23 A. It depends on which computer it is.
24 Q. One of the computers in the Lockheed Martin system that was
25 recording people's telephone calls? Would it be that agent's
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3163
476LSAT6 Elliott - cross
1 job to call you?
2 A. He wouldn't necessarily have called me in this particular
3 case. With both of those systems, we had maintenance contracts
4 worked out with manufacturer, so the call may have very well
5 gone first to the manufacturer as a part of that maintenance
6 contract for them to maintain the support, and they would have
7 called that manufacturer first. That's what we allowed them to
8 do.
9 Q. Did you, as a part of your job -- where was your office, by
10 the way, Washington?
11 A. Quantico, Virginia.
12 Q. As a part of your job there in Quantico, Virginia, did you
13 have supervision of or custody of the logs for maintenance that
14 showed what problems, if any, were on the computers?
15 MS. BAKER: Objection. Asked and answered.
16 THE COURT: Overruled.
17 A. No, I certainly would not have had responsibility for those
18 logs.
19 Q. CALEA, 1994 -- you told us about that?
20 A. Yes.
21 Q. Now, that was a law that was passed that required telephone
22 companies to do certain things? Is that what you said?
23 A. It compelled telephone companies to work with law
24 enforcement to maintain the FBI law enforcement ability to
25 continue to do lawful wiretapping as the technology of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3164
476LSAT6 Elliott - cross
1 telephones changed.
2 Q. You said that there came a time when you began to consider
3 changing or updating the Lockheed Martin system, correct?
4 A. Yes.
5 Q. And that was in about 1998?
6 A. It might have actually been prior to that when we first
7 started the process of garnering the requirements for a new
8 system, because even to go to Lockheed Martin to talk about
9 changes, we would have to have had requirements to build
10 against. And so it was in the mid to late 90's that we started
11 that process.
12 Q. So to be clear, in order to get a new system, you'd have to
13 get Congress to give you the money, right?
14 A. Yes.
15 Q. And that takes time, doesn't it?
16 A. It sure does.
17 Q. And in order to get Congress to give you the money, the
18 director -- was it Director Freeh then?
19 A. Yes.
20 Q. He'd have to go up on the Hill and talk and testify about
21 what you wanted, correct?
22 A. He might have, yes.
23 Q. When we're talking about a new system, we're talking
24 millions of dollars, right?
25 A. Yes, we are.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3165
476LSAT6 Elliott - cross
1 Q. In the 1997-'98 period, did you write memoranda that stated
2 your views about what needed to happen to upgrade the system?
3 A. We put together requirements as to what we --
4 Q. Sir, please. Did you write memoranda that related to this?
5 A. Well, personally, I probably would not have written the
6 memorandum. It would have been written by and for me by the
7 people who work for me.
8 Q. And after the people that worked for you wrote it for you,
9 did you sign any memoranda and forward them to people?
10 A. I do a lot of that. I have people write documents for me.
11 I sign them after reading them and pass them along, yes.
12 Q. Did that happen with respect to this decision to change out
13 or upgrade the Lockheed Martin system?
14 A. I don't recall writing a document that would have caused us
15 to do that. Because Lockheed Martin made the decision that
16 they no longer wanted to support the system. So it was not an
17 action that we would have to take with our contracting officer
18 talking to their contracting officer, because that's how it
19 would happen. It would not have been me, because it would have
20 been improper. It would have been contracting officer talking
21 to contracting officer.
22 So since they made the decision they were not going to
23 support the system any longer, we were able to get a couple of
24 years of maintenance out of Lockheed Martin in support of this
25 particular collection system. But the decision to move to a
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3166
476LSAT6 Elliott - cross
1 new platform was easy for us, because if they're not going to
2 support it, we have to find another venue.
3 Q. My question was: Did you write or sign any memoranda about
4 the changeover from the Lockheed Martin system beginning in or
5 about 1997?
6 MS. BAKER: Objection. Asked and answered.
7 THE COURT: Overruled.
8 A. As you previously asked it, I said I don't recall signing a
9 document about that.
10 Q. If you had written or signed such a document, it would be
11 filed in Quantico?
12 A. It would be filed with the FBI's file systems, yes.
13 Q. You mentioned problems with or issues about the Lockheed
14 Martin system. One issue was that the tapes, eight millimeter
15 tape, became brittle, correct?
16 A. Yes. After a period of time, we noticed some of those
17 older tapes were becoming old and brittle, and when we tried to
18 play them back, they would actually break, so we would have to
19 repair some of those tapes to play them back.
20 Q. Did you write any memoranda that documented the problems
21 you were having with these brittle tapes?
22 A. No, I would not have written that memoranda. That would
23 have done in the field office where the actual breakage would
24 have occurred, if they did that.
25 Q. How did you become aware that people were saying that the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3167
476LSAT6 Elliott - cross
1 tapes were brittle?
2 A. An engineer walks into my office and said, Mr. Elliott,
3 we're having trouble with these eight millimeter tapes and
4 we're going to have to start the conversion process that we've
5 been talking about to .voc.
6 Q. That engineer, is that somebody that works for the FBI?
7 A. Yes, it would have been an FBI engineer.
8 Q. Because -- and how old were these tapes that were getting
9 brittle and breaking?
10 A. You know, they weren't very old. In some cases, probably
11 four or five years old. We were surprised that the technology
12 had not held up the way we'd expected it to. You know, when
13 you're buying this technology, you're reading the slips that
14 they sell you, the glossy pieces of paper that say, Hey, this
15 is good stuff. And one of the things we couldn't test is its
16 longevity over time.
17 Q. So you say five years. So, in other words, a tape that was
18 made in 1996 might start to break in 2001, right?
19 A. It could have been -- yeah. I don't know exactly which
20 tapes, with respect to this case.
21 Q. So did that lead you to want a system that didn't use this
22 medium that was unreliable?
23 A. It does lead us to the fact that we wanted to go to a
24 different record media because this wasn't reliable over time,
25 and that there was better media out there, and we wanted to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3168
476LSAT6 Elliott - cross
1 move to that other media.
2 Q. Now, you decided you were going to go with Raytheon,
3 correct?
4 A. Yes, we did.
5 Q. Now, who made -- you made that decision?
6 A. Not necessarily. That's -- that's not a decision where I
7 just pick Raytheon.
8 Q. Well, did you participate in picking Raytheon?
9 A. It -- it was my unit that made the decision, and I was the
10 leader of that unit at the time the decision was made.
11 Q. And did you make any memoranda or sign any memoranda that
12 were made by others that related to your decision?
13 A. There was memoranda written about that process of selecting
14 Raytheon as the new vendor of choice, yes.
15 Q. And does that -- you say -- I'm sorry. Did you use single
16 or plural? More than one memorandum?
17 A. Well, whenever you're buying a system like this, it's --
18 you have to have requirements from which to judge the system
19 from. And so you have requirements documents. You have to
20 transmit these requirements documents properly to the
21 particular vendor who's going to judge -- who wants to have his
22 system judged against those requirements. And you have a
23 contracting officer that makes that happen. They write the
24 letters that pass those documents over.
25 And then, of course, the vendor -- in this case,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3169
476LSAT6 Elliott - cross
1 Raytheon -- writes letters back and says, Yes, we would like to
2 have our system judged against your requirements. And then you
3 pick a time when you will sit down and you go through those
4 requirements to ensure that what they're offering you is
5 accurate to what your requirements are:
6 Does it accurately record the audio? Does it record
7 the telephone numbers? Does it apply the date and the time and
8 the lengths of the phone calls? All of those things that
9 you've developed as a requirement for your system.
10 And so, yes, there's paperwork that's done to ensure
11 that that happens and -- for that test that occurs.
12 Q. Because you want them to promise you that it's going to do
13 what you want, correct?
14 A. I don't want them to promise me. I want them to guarantee
15 and show me that it's going to do what we want. And I want to
16 see that happen.
17 Q. Now, when you say "guarantee", they can tell you that their
18 storage medium is going to last 10 years.
19 A. That's correct.
20 Q. But you won't know that for 10 years, will you?
21 A. Won't know.
22 Q. Well, you can't know everything.
23 A. In this particular case, the storage media was not picked
24 by the vendor. It was the FBI that chose the storage media.
25 Q. That was provided by some other vendor other than Raytheon?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3170
476LSAT6 Elliott - cross
1 A. That's correct.
2 Q. And did you go through that same process with that?
3 A. We did.
4 Q. When you talked about your requirements, as you did on
5 direct examination, did you build in an audit log requirement?
6 A. There is an audit log requirement build into the Raytheon
7 system.
8 Q. Was there an audit log requirement built into the Lockheed
9 Martin system?
10 A. I'm not familiar with the audit trails of that system.
11 Q. What's your understanding of what an audit log does?
12 A. An audit log, from a security point of view, allows us to
13 determine who has access to a system and what that person has
14 the ability to do from a profile that's established for them.
15 Q. When you say who has access to the system --
16 A. I'm talking about from a password, not from a physical
17 security point of view --
18 Q. I understand, right.
19 MS. BAKER: Your Honor, would you ask Mr. Tigar to let
20 the witness finish his answer?
21 MR. TIGAR: I apologize.
22 THE COURT: Fine.
23 A. We're talking about two types of security. There's the
24 physical security of how the system is housed in a particular
25 room in the FBI, New York field office. But then there's that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3171
476LSAT6 Elliott - cross
1 password security that the -- that one has to enter a password
2 with a user name to get access to one of these systems, and we
3 talked about the system administrators having that ability to
4 do that primarily. But certainly even one of the specialists
5 who's going to do the translation or the transcription of these
6 phone calls would have a user name and a password. But they
7 would only be allowed to see the files that their profile said
8 they could look at. So they can't log on and have access to
9 system administrator rights. They can only log on and listen
10 to the phone calls that they've been told was their
11 responsibility for the day.
12 Q. We have a secure place where the data is, correct?
13 A. Yes.
14 Q. We have a user name and password to be able to get access
15 to the files, correct?
16 A. Yes.
17 Q. Now -- and is it your understanding that the user name and
18 password was required to get into a Lockheed Martin file, or do
19 you know?
20 A. I don't know. Outside of the system administrator's role.
21 Q. Then beyond the user name and password, did you put into
22 the Raytheon system a requirement that the system record who
23 got the file, when they got it, and whether they'd done
24 anything to it?
25 A. Sadly, no, that was not included in terms of a work flow
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3172
476LSAT6 Elliott - cross
1 management process, because that's what you're describing, a
2 way to manage the work flow of one of the specialists: Do you
3 know which specialist accessed a file; what did they do to it;
4 and when were they done with it? That was not included in the
5 process.
6 Q. And you say, "Sadly, no." You're aware there exists
7 several proprietary or things in the marketplace that perform
8 that log audit function, correct?
9 A. I'm glad that you tell me that, because we're in the
10 process of wanting to do that capability for our specialists,
11 but the current system does not have the ability to do that
12 work, audit management, that you're asking about. But there
13 are software out there that do that.
14 Q. Have you ever heard of a program called Check Some?
15 MS. BAKER: Objection. Relevance.
16 THE COURT: Sustained.
17 MR. TIGAR: I'm sorry, your Honor?
18 THE COURT: Sustained.
19 Q. Do you know the names of any audit trail or audit log
20 programs?
21 MS. BAKER: Objection. Relevance.
22 THE COURT: Overruled.
23 A. There's one that I know of called Remedy that's a very
24 robust software that not only provides a help desk function but
25 also provides some of those, but it did not meet our needs for
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3173
476LSAT6 Elliott - cross
1 this purpose.
2 Q. You testified on direct examination, Sir, that you were
3 recording -- or excuse me, that you were involved in converting
4 files. Let me turn the light back on here.
5 This is Government Exhibit 1309. The object of this
6 change you're talking about here was to create MO disks in
7 a .voc format, correct?
8 A. Yes.
9 Q. And did you personally do this process?
10 A. No, I did not personally do this process.
11 Q. Were you present when it was done?
12 A. No, I was not present.
13 Q. Do you know whether a log was kept of when it was done and
14 how?
15 A. You mean as to the date and time?
16 Q. The date and time and what was done.
17 A. No, I don't know if they kept a log.
18 Q. Do you know whether or not it was possible as the recording
19 was being done for somebody to listen to the audio and see what
20 was being passed through?
21 A. Yes, I know if that was possible.
22 Q. Do you know whether it was?
23 A. I know that it was possible that you could make that
24 determination. I'm trying to answer your question the way you
25 phrased it.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3174
476LSAT6 Elliott - cross
1 Q. It's all right. I'm not trying to --
2 A. I know you're not.
3 Q. Go ahead, tell us --
4 THE COURT: Hold on. Hold on.
5 A. This conversion system does not have an ability to play
6 audio during the conversion process as depicted in this graphic
7 here. It's just a pure conversion process. So there's no
8 place there you could sit and listen to this audio.
9 Q. Thank you. And I'm sorry, I didn't mean to cut you off. I
10 wanted you to answer --
11 A. Thank you.
12 Q. There's no place to plug in earphones on here, right?
13 A. Not that I'm aware of.
14 Q. Let's look at this technology, timetable. This is an
15 exhibit. It's in evidence -- and I'm sorry, I've forgotten the
16 number.
17 MS. BAKER: Your Honor, for the record, that's
18 Government Exhibit 1311.
19 THE COURT: All right.
20 Q. All right. If you look on here, we have at the top
21 Lockheed Martin, correct?
22 A. Yes, with the blue line.
23 Q. With the dot there. There's another dot.
24 Now, down here we have Raytheon right there and
25 Raytheon right there. There's Raytheon there and there's
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3175
476LSAT6 Elliott - cross
1 Raytheon there. What's that mean?
2 A. In order to install the Raytheon system in the New York
3 field office -- as we had discussed earlier in my testimony,
4 the Lockheed Martin system was very large, and it took up a lot
5 of that room where we were housed. We had enough room to take
6 in a small Raytheon system so that we could start to take some
7 of the intercepted telephone calls that were being intercepted
8 on the Lockheed Martin system and move them to the Raytheon
9 system, and then take out a part of the Lockheed Martin system.
10 The process we would go through is we would then
11 install pieces of the Raytheon system until we had it all
12 installed, at the same time taking away pieces of the Lockheed
13 Martin system. So it was a phase-in of the technology. That
14 we didn't just go in one day and take the Lockheed Martin
15 system off-line and pull it out the door and install the
16 Raytheon system. It happened over a period of weeks and months
17 that one was installed and the other one was uninstalled.
18 Q. So that's a transition period we're seeing there?
19 A. Yes, it is.
20 Q. Now, one of the things you could do with this Raytheon
21 system you said was you could actually go in and add
22 information to the file, correct?
23 A. I didn't say that I could add information. It was at the
24 point of time that the system administrator would configure an
25 intercept that they would have to program the system with the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3176
476LSAT6 Elliott - cross
1 appropriate information to coincide with the intercepted
2 conversation.
3 Q. Maybe I didn't make myself clear, Sir. Was there a
4 capacity to add to the Raytheon file a summary of the
5 intercepted conversation?
6 A. I think what you're referring to is the .voc file?
7 Q. Yes, the .voc file.
8 A. Yes, there was an ability to insert text into that file
9 format.
10 Q. So when we get into the Raytheon system in mid 2000, the
11 process is that somebody -- you get a court order, and the
12 phone company, under CALEA, they have the equipment with which
13 you can do the detect, correct?
14 A. In general terms.
15 Q. And then that call data comes to the field office?
16 A. Well, it could have come one of both ways: It could have
17 come from that intercept that applied at the telephone pole; or
18 it could have come from some of those intercepts that were
19 initiated at the telephone switch, because the telephone
20 company had the ability to do that.
21 Q. I see. So even after you had this legislation, sometimes
22 you still had to climb the pole?
23 A. You had to climb the pole in the case of the landline
24 phones or the wire-line phones, because the first part of the
25 legislation was about the cellular industry. In other words,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3177
476LSAT6 Elliott - cross
1 we wanted to be able to get those cellular telephones
2 interceptable at the switch because there was no pole to climb.
3 Q. All right. So -- all right. So now, however we did it,
4 however you did it, you have this data coming in, it's on hard
5 drive, correct?
6 A. Yes.
7 Q. And that creates a .voc file, correct?
8 A. Yes.
9 Q. And that file, there's a header on it and a footer,
10 correct?
11 A. Yes.
12 Q. And in the header, we're going to see the date and the time
13 and a bunch of this other identifying information, correct?
14 A. Well, when you look at the .voc file in the way we
15 originally get it from Creative Labs, that header would have
16 said it was a Creative Labs product and it was produced by them
17 and it had a date and time and all that information that they
18 produced it. Well, we don't want that appearing in a file
19 that's about electronic surveillance. That's where we would
20 insert one of those blocks for text in that we would have our
21 own header information that was there. That was that header
22 information that we saw on the exhibit here a few minutes ago,
23 and that was an opportunity where we inserted text about
24 that .voc file so that we could know the target telephone
25 number and the date and time of the Court order and the name of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3178
476LSAT6 Elliott - cross
1 the Court order and the things that we've talked about today.
2 Q. So now we have an a file that contains both audio and
3 graphical information, correct?
4 A. It's the same as the Lockheed Martin file. It's
5 signal-related information.
6 Q. Yes.
7 A. That's preprogrammed by the system administrator to ensure
8 that the -- that the content and the signal-related information
9 match up.
10 Q. One way that the nonaudio information gets in there is that
11 the system is programmed to put it in automatically using the
12 internal clock, correct?
13 A. Well, the system is programmed to automatically record
14 based upon the presence or absence of that tone that I spoke
15 about under my other questioning.
16 Q. But a file header gets put on once the recording -- as the
17 recording is starting, doesn't it?
18 A. Yes, there's the file created. Once the program is done
19 there's a file created. And in terms of that building blocks,
20 there's a building block that's set in there ready for the
21 audio to go into, but there's nothing in it yet if a phone call
22 hasn't occurred. It's when the phone call occurs that file is
23 created. There's the signal-related information, that text
24 that we want to talk about. And then there's that next
25 building block for the audio.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3179
476LSAT6 Elliott - cross
1 Q. Let's see if we can use an analogy here. If I use
2 Microsoft Word on my computer and I create a document and save
3 it, when I save it, my computer's internal clock makes a little
4 entry that has a file name and the date and time it was
5 created, correct?
6 A. I don't use Microsoft Word. I use Word Perfect.
7 Q. All right, Word Perfect.
8 A. But it does keep a date that tells me the time that I saved
9 that file.
10 Q. And it has a file name and so on, correct?
11 A. That I've chosen, yes.
12 Q. And later, if you want to open it, that file, you should
13 have Word Perfect or some other compatible program on to open
14 it, right?
15 A. Yes, you would.
16 Q. Now, so is it similar to that what was done, that is, as
17 these .voc files were created, a file-created set of
18 information was made to the hard drive?
19 A. Yes. There would have been a file name and there would
20 have been that information embedded in there about the date and
21 the time from the internal clocks, and then there would have
22 been the audio content as a part of that file.
23 Q. Now, a certain number of hours after that, that file,
24 that .voc file with this information we're talking about, that
25 gets copied to a magneto optical disk, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3180
476LSAT6 Elliott - cross
1 A. Yes. It's very similar to the example you were using in
2 Word Perfect. If I were to write a Word Perfect document and
3 save that to my hard drive, but sometime later, you know, you
4 come to my house and you say, Gosh, I'd love that document you
5 wrote, and I could cut and make a copy of that on -- for a
6 floppy disk in the a: drive, and you could walk away with that
7 floppy disk and it would be an identical copy of that file.
8 Q. Exactly. And the one difference is that once that MO disk
9 is made, the hard drive is going to be written over in a
10 certain period of time, correct?
11 A. It would only be written over in terms of if the archive
12 had occurred. If the automatic archiving had not happened, it
13 would not be overwritten.
14 Q. So -- but at some point, once the archiving happened, it
15 would be overwritten, correct?
16 A. That's correct.
17 Q. Now, after -- but in addition to that, the Raytheon system
18 had the capacity that an agent could open that .voc file that
19 was on the MO disk and insert text in there, correct?
20 A. No, that's incorrect.
21 Q. All right. Tell me how that would happen -- or what --
22 A. An agent would not have the ability to get access to that
23 file, in general terms. It would have been the system
24 administrator who would have had access to those files within
25 that physically secured room.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3181
476LSAT6 Elliott - cross
1 Q. All right. Excuse me. Without regard to terminology,
2 could a person with proper clearance reopen that .voc file that
3 had been stored on the MO disk and insert text?
4 A. No. We had not fully implemented the text insertion
5 process beyond having the signal-related information that was
6 there at that time.
7 Q. When you say had not fully implemented, you mean you
8 couldn't do it? Or that --
9 A. We were not doing it then. Because the goal of that file
10 was that it would be later used in a -- you know, that it could
11 be uploaded later into investigative case files, and that one
12 could search on that text. But we've never gotten to the point
13 where we've used that .voc file for that purpose by inserting
14 the text beyond just signal-related information. So we haven't
15 put any synopsis or transcripts into there.
16 But that's the reason we chose the text file, and we
17 still could do that in the future.
18 Q. Well, is it fair to say that the system has the capacity to
19 permit a person who is authorized to access the file, to open
20 the file, and to add to it?
21 A. Not a system administrator. That would have to be a root
22 access or the actual programmer to set that up and establish it
23 so that those things would happen. So even a system
24 administrator can't do that today. They can't go in and say,
25 Hey, I'd like to insert this synopsis of that phone call into
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3182
476LSAT6 Elliott - cross
1 this file. That capability is just not there. We haven't
2 provided that capability.
3 Q. And are there memoranda that reflect what the system is or
4 is not capable of in terms of opening and changing files?
5 A. Well, you use the word memoranda. I prefer to use the word
6 systems requirements. And yes, we have a systems requirements
7 that talk about what that system can and cannot do.
8 Q. And who is the author of the systems requirements?
9 A. It would be the FBI.
10 Q. Well --
11 A. Are you looking for an individual?
12 Q. Yes. I mean --
13 A. Well, it certainly would not have been one individual. It
14 would have been a collective group of people within the FBI
15 that would have gotten together to create these requirements
16 documents. It's a group project to do such a thing. No one
17 person would author such a document.
18 Q. Did you participate in that process of setting up these
19 requirements?
20 A. I have participated in a lot of those processes of
21 garnering requirements for our collection systems in the FBI.
22 Q. And specifically, with respect to the Raytheon system, did
23 you participate in the process?
24 A. Yes, I did.
25 Q. So from that, you're able to tell us what that -- based on
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3183
476LSAT6 Elliott - cross
1 your participation, what the system is capable of, correct?
2 A. To the best of my memory. And a good example of that is
3 you asked me about this insertion of text. And I think that --
4 and I've tried to explain that we chose that file format .voc
5 because it gave us longevity to insert text at another date.
6 We have not implemented that capability yet of inserting the
7 transcript or the synopsis into that file format. But the file
8 format yields itself to that, and that's why we like the .voc
9 file format.
10 Q. Now, among the requirements in the system, is there a
11 requirement that if someone does use that capability and open a
12 file, that a log would be kept of who it was, when they did it,
13 and what changes were made?
14 MS. BAKER: Objection. Relevance.
15 THE COURT: Overruled.
16 A. Well, that's the -- that's a very similar question that
17 you've already asked. No, there is not a log there now because
18 the system doesn't yield that ability for that to happen.
19 There's nobody that can open up a file and insert text in it
20 now beyond that signal-related information that's part of the
21 wiretap itself or the preprogramming by the system
22 administrator. So the capability doesn't exist, so there's not
23 a log to see if anybody does it.
24 Q. Now, when you installed this Raytheon system, it came with
25 instruction manuals?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3184
476LSAT6 Elliott - cross
1 A. Yes, they did.
2 Q. Did you participate in training people to use it?
3 A. No, I did not.
4 Q. And whose responsibility would it have been to train the
5 people?
6 A. It would have been a dual responsibility as a part of the
7 contract between the FBI and Raytheon to conduct such training
8 classes.
9 MR. TIGAR: May I have a moment, your Honor?
10 THE COURT: Yes.
11 (Pause)
12 BY MR. TIGAR:
13 Q. Mr. Elliott, was there more than one .voc format in use
14 with respect to the tapes at issue in this case?
15 A. No, there would not have been more than one .voc. But
16 because of the two systems that were there in that migration
17 timeline that you requested earlier, we referred to those as
18 System 1 and System 2. So that information may be in that
19 header that says Sys 1 and Sys 2, to give the appearance
20 specifically.
21 (Continued on next page)
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3185
476SSAT7 Elliott - cross
1 Q. Specifically, sir, did you have a .VOC form called Mu-Law?
2 A. I don't recognize that as being a term associated with this
3 file formats.
4 Q. Did you have a .VOC format known as 16 bit PCM?
5 A. I do not recognize that as a part of this .VOC file.
6 MR. TIGAR: Your Honor, I have no further questions of
7 this witness at this time subject to the application that I
8 made earlier.
9 THE COURT: All right.
10 MR. PAUL: No questions.
11 THE COURT: Ms. Baker.
12 REDIRECT EXAMINATION
13 BY MS. BAKER:
14 Q. Mr. Elliott, in response to some of the questions on cross
15 examination you explained that the transition from the Lockheed
16 Martin system to the Raytheon system was essentially a phased
17 transition?
18 A. Yes, it was.
19 Q. And basically was it that particular telephone numbers or
20 particular groups of telephone numbers were --
21 MR. TIGAR: Objection to the leading, your Honor.
22 THE COURT: Sustained.
23 Q. How did the phasing occur?
24 A. The phasing occurred that when you look at one of these
25 systems they are really broken into sub components. It's not
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3186
476SSAT7 Elliott - redirect
1 really one big computer, it's a series of computers that kind
2 of set together to work as a system. So as we put in that
3 small Raytheon system, we took a part of the Lockheed Martin
4 system away and whatever telephone numbers that were on that
5 part, because we needed that particular floor space to be
6 cleared to start the installation of the full Raytheon system,
7 we removed it and so it was really by where it was at on the
8 floor as to which intercepted phone calls were moved from the
9 Lockheed Martin system over to the Raytheon system.
10 Q. Mr. Tigar asked you some questions about the compression of
11 the files in the Lockheed Martin system.
12 When you went through this process more recently of
13 converting the Lockheed Martin files to the Raytheon format, is
14 it your understanding that in that process that compression was
15 essentially reversed?
16 A. Yes, it was.
17 MR. TIGAR: Objection, your Honor, personal knowledge.
18 THE COURT: I think he already answered.
19 Q. Mr. Tigar was asking you some questions about FBI personnel
20 having access to the recordings once they were made, so I want
21 to go back over some of that with you.
22 You have testified about language specialists whose
23 job might include listening to recordings of these calls,
24 correct?
25 A. Correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3187
476SSAT7 Elliott - redirect
1 Q. Could you explain to the jury sort of physically how the
2 language specialists would utilize these systems to access the
3 recordings that were called?
4 A. We talked about this room that is physically secure where
5 this collection system actually sits and where the system
6 administrator and the engineers who help maintain this system
7 have access to it. The language specialist doesn't have access
8 to that room. They sit in another part of the building. They
9 are on the same floor and for all intents and purposes they are
10 just down the hall in another room. And they sit at their desk
11 where they have a computer monitor and a keyboard and they
12 access it there by user name and password and then they access
13 it and read it directly off the hard drive of the collection
14 system.
15 Q. As far as the level of access to the systems that the
16 language specialists have based on their passwords, would they
17 be able to in any way modify or change the files on the system?
18 A. Language specialists have listen only access and and the
19 ability to write only a synopsis and a transcript. They do not
20 have the ability to do anything about how the system operates
21 or which files are recorded or not recorded.
22 Q. And as you explained it, the language specialists were
23 listening to the file on the hard drive of the system, correct?
24 A. Yes, they do. They actually listen to the audio directly
25 from the hard drive of the collection system.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3188
476SSAT7 Elliott - redirect
1 Q. So ordinarily would a language specialist have any reason
2 to seek access to the duplicate of the recording that was put
3 onto the 8 millimeter tape or the magneto optical disk?
4 A. No, if they needed access to a phone call that was no
5 longer on the system, they would just request that through
6 their supervisor to an administrator of the system and then
7 that phone call would be reentered on onto the hard drive of
8 the system so they could have access to it.
9 Q. Just now you used the term reentered, that the recording
10 would be reentered on the system.
11 A. Yes.
12 Q. I believe on cross examination you may have used the phrase
13 reload, that the call would be reloaded to the system.
14 Could you explain what you mean by that? In other
15 words, was the file actually moved from the tape or the MO disk
16 to the hard drive or was it duplicated?
17 A. In both systems, the Lockheed Martin system and the
18 Raytheon system, the media that we were using were 8 millimeter
19 tapes and the magneto optical disks that we passed around here
20 this morning here in court. In the case of a language
21 specialist wanting to listen to an audio or a telephone
22 intercept that was no longer there, after making the request
23 the system administrator would take that 8 millimeter tape or
24 that magneto optical disk and he would go over to the computer.
25 He would go over to the collection system computer and there
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3189
476SSAT7 Elliott - redirect
1 would be a place there that you put that in the computer much
2 like putting a floppy disk in your personal computer that you
3 may have at home, and then you would copy the file from that
4 disk back onto the system. You did nothing to the file that
5 was on the 8 millimeter tape or the magneto optical disk. You
6 just copied it over to the hard drive. That magneto optical
7 disk or 8 millimeter tape would then be pulled and it would be
8 placed back into the secure storage from which it came from and
9 then the language specialist now would have access to that
10 particular phone call, that intercepted phone call, off the
11 hard drive of the system again.
12 Q. On cross examination Mr. Tigar asked you some questions
13 about whether there were any crashes of either of these
14 recording systems. As I you sit here today from what you can
15 recall from your tenure as unit chief of the telecommunication
16 intercept unit and your tenure as assistant section chief of
17 the electronic surveillance technology section, do you recall
18 receiving any reports that there were any crashes of these
19 systems?
20 A. Well --
21 MR. TIGAR: Objection, your Honor.
22 THE COURT: Overruled.
23 A. Like any system, any computer system, there will always be
24 those times that you have trouble with that system. What we do
25 in our field offices, and primarily in the New York field
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3190
476SSAT7 Elliott - redirect
1 office if we are having trouble with a particular hard drive,
2 we just take the phone calls that have been going to that hard
3 drive and we send them to a different hard drive. Remember I
4 talked about the system being made up of several computers and
5 that is the freedom that we have of having this large system in
6 a place like New York that whenever you do have a problem with
7 the system for whatever reason you just, because we are 24-hour
8 operation, you just relocate those lines by moving them to
9 another hard drive so they can be recorded there until which
10 time you determine was it a power problem or was it a hard
11 drive problem or whatever the problem may have been and to
12 replace that part.
13 Q. If a system crashed in the sense that it simply was not
14 recording for some particular reason, then the result of that
15 would have been that there were no recordings saved for some
16 period of time, isn't that right?
17 A. Yes, if it had occurred and there was nobody there to watch
18 the system and there was a crash, then you have no recording.
19 Nothing happens.
20 Q. As opposed to, for example, you would not have had a
21 distorted recording if a system had failed for a period of time
22 to record?
23 A. That is correct.
24 Q. You were asked some questions on cross examination
25 regarding the deterioration of the 8 millimeter tapes that were
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3191
476SSAT7 Elliott - redirect
1 used with the Lockheed Martin recording system. Could you
2 explain for the jury for the tapes that deteriorated, what
3 effect, if any, did that have if one went to try to retrieve
4 the audio recordings that were on those tapes, what would you
5 get or not get as a result of deterioration of the particular
6 tapes?
7 MR. TIGAR: Objection, personal knowledge.
8 THE COURT: Do you know?
9 THE WITNESS: Yes.
10 THE COURT: All right.
11 A. The deterioration of these tapes is that when we tried to
12 play them back they would break. We would have to just repair
13 the tape and then continue to play this process through. It
14 did not impact our ability to record from the 8 millimeter tape
15 into this conversion system and to convert those files.
16 Q. Mr. Tigar was asking you some questions on cross
17 examination about the capability of the .VOC file format to
18 have text inserted into it. So that the record is clear, did
19 the FBI -- withdrawn.
20 You testified on direct that when the system, the
21 Raytheon system, recorded a call, it also saved the signal
22 related information with the call, correct?
23 A. Yes.
24 Q. Other than that signal-related information saved as text,
25 did the FBI ever implement any function of the Raytheon system
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3192
476SSAT7 Elliott - redirect
1 to save any other text into the .VOC files?
2 A. Not into the .VOC files.
3 MS. BAKER: Your Honor, may I have a minute?
4 THE COURT: Yes.
5 (Pause)
6 Q. This capability that I asked you about in the last
7 question, that at some point in the future the FBI might modify
8 the system so that text could be saved along with the audio
9 recording, as far as how that function was intended to work,
10 would the ability to insert text in any way disrupt or affect
11 the audio content of the recording or would the text be
12 appended essentially in a separate block?
13 A. It would not affect it at all and it would be a separate
14 block. An example of that is as a language specialist would
15 have typed a synopsis, a synopsis of a phone call that they
16 were listening to. Once they closed that synopsis out we would
17 like to have that appended to the file and made a part of that
18 file. We just haven't done that yet.
19 MS. BAKER: I have no further questions.
20 THE COURT: All right.
21 Mr. Tigar. Limited to direct.
22 RECROSS EXAMINATION
23 BY MR. TIGAR:
24 Q. Mr. Elliott, this conversion process about which you were
25 asked on redirect from the Lockheed Martin system to .VOC, was
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3193
476SSAT7 Elliott - recross
1 that an automated system or did they do it one at a time?
2 A. It was an automated system in that after the system was
3 built and you selected the phone call that you wanted to
4 convert, it was a matter of saying make the conversion and then
5 it would convert it over to the new system. And it was my
6 understanding that they were doing that one phone call at a
7 time.
8 Q. Now, you talked about brittle tape breaking, correct?
9 A. Yes.
10 Q. Is the magnetic tape in an 8 millimeter tape like we saw
11 today, is that basically the same kind of tape as in a cassette
12 recorder?
13 A. I don't know. I am not a tape expert.
14 Q. Do you know what happens to sound quality of old cassette
15 recorder tapes?
16 MS. BAKER: Objection, relevance.
17 THE COURT: Sustained.
18 Q. Do you know what happens to the sound quality of old 8
19 millimeter tapes?
20 A. No, I don't.
21 Q. Did the FBI dismantle and destroy the machinery that was
22 used in the Lockheed Martin system?
23 A. We dismantled and removed from our inventory the Lockheed
24 Martin system.
25 Q. You don't own it anymore?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3194
476SSAT7 Elliott - recross
1 A. No, we don't.
2 MR. TIGAR: Your Honor, subject to the matters that I
3 raised I have no further questions at this time.
4 THE COURT: All right.
5 MR. TIGAR: I have an application.
6 MS. BAKER: I had one follow-up question, your Honor.
7 THE COURT: All right.
8 REDIRECT EXAMINATION
9 BY MS. BAKER:
10 Q. Did the FBI's dismantling of the Lockheed Martin system
11 have anything to do with the investigations that led to this
12 particular case?
13 A. No, the removal of the Lockheed Martin system was based
14 solely on the fact that we were upgrading our technology and we
15 wanted to go to another system and Lockheed Martin had told us
16 that they did not want to continue to support that business.
17 MS. BAKER: Thank you.
18 I have nothing further.
19 MR. TIGAR: May I have just a moment please, your
20 Honor? I am sorry.
21 THE COURT: That is all right. Limited to redirect,
22 or re-redirect.
23 RECROSS EXAMINATION
24 BY MR. TIGAR:
25 Q. Are you aware, sir, of any provision of the FBI
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3195
476SSAT7 Elliott - recross
1 administrative manual with respect to practices that are to be
2 followed with respect to file destruction?
3 MS. BAKER: Objection, beyond the scope.
4 THE COURT: Overruled.
5 A. No, I don't know anything about file destructions.
6 MR. TIGAR: No further questions.
7 THE COURT: All right.
8 MS. BAKER: Nothing further.
9 THE COURT: All right.
10 Ladies and gentlemen, it's time to break for the day.
11 It's very important to continue to follow my
12 instructions. Please don't look at or listen to anything to do
13 with the case. If you should see or hear something just simply
14 turn away. Remember please don't talk about this case at all
15 or anything to do with it. And remember always to keep an open
16 mind until you have heard all of the evidence, I have
17 instructed you on the law, you have gone to the jury room to
18 begin your deliberations.
19 Have a very good evening. I look forward to seeing
20 you tomorrow.
21 All rise please.
22 Follow Mr. Fletcher to the jury room.
23 (Jury left the courtroom)
24 THE COURT: The witness is excused subject to recall.
25 You may step down.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3196
476SSAT7
1 (Witness excused)
2 MS. BAKER: Your Honor, although the witness is
3 subject to recall based on Mr. Tigar's pending applications and
4 although -- let me just start over.
5 THE COURT: Let's wait until the witness leaves.
6 All right.
7 MS. BAKER: In order to be able to respond to Mr.
8 Tigar's pending applications I need to be able to speak with
9 the witness about the subject matter of those applications; for
10 example, whether the documents that have been discussed in fact
11 exist and so on.
12 THE COURT: You can do that. The witness isn't on
13 cross at the moment.
14 MR. TIGAR: Your Honor, we will of course want the
15 witness back and I have in my earlier application generally
16 described the materials that we would seek. They are the
17 memoranda that he prepared or in the preparation of which he
18 participated.
19 There is an ambiguity in Section 3500(e) as to what is
20 a statement and 3500(e)(1) says it is a written statement made
21 by said witness and signed or otherwise adopted or approved by
22 him.
23 Now, I interpret that as referring as well to a
24 document in the preparation of which he meaningfully
25 participated and therefore would include a document drafted by
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3197
476SSAT7
1 others to which he appended his signature and sent it up the
2 line.
3 Whether or not that is true as a Jencks Act matter we
4 seek the information because it is relevant and evidentiary,
5 the government having tendered the witness as an expert and
6 thus broadened the scope of permissible inquiry.
7 And finally, your Honor, today we learned for the
8 first time that the original Lockheed Martin file, which was
9 recorded in a proprietary format, was shrunk by a factor of 4
10 and that the original large file no longer exists and therefore
11 we are fairly certain that that was one of the technological
12 issues that was addressed during this file changeover.
13 I had spoken to Ms. Baker at the break. We have not
14 yet received any of the original files from the 8 millimeter
15 tapes. The certain FBI personnel are out of town and until we
16 get those and have a chance to compare them, we would also need
17 this witness to stay.
18 My question about the two different .VOC formats is
19 based on our initial analysis of these .VOC files that we
20 already got in the second round of discovery. There are
21 different .VOC formats running around here and we just can't
22 figure out why that change, and I would tell the court as a
23 matter of good faith that the conversion system, any file
24 conversion system that shrinks a file by a factor of 4 in an
25 audio file setting changes data; that is, you can't reverse
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3198
476SSAT7
1 engineer it back to what you had originally. And that is the
2 reason that we are pursuing this. This is not some
3 will-o'-the-wisp. This is a serious matter for us.
4 THE COURT: All right. Well, the requests are out
5 there and the witness is subject to recall and the government
6 should explore the issues and report back as promptly as
7 possible. I don't know if the parties will work it out among
8 themselves or if there is something for me to decide here, but
9 the requests are made and the government is going to pursue
10 them.
11 Am I correct?
12 MS. BAKER: Yes, your Honor. I am awaiting
13 information about whether or not the various categories of
14 documents that Mr. Tigar has requested exist and once I know
15 the answers to those questions I will be in a better position
16 to determine whether the assistance of the court might be
17 required. I do have some reason to believe that certain
18 documents relating to specifications for the Raytheon system --
19 and I really don't remember whether that is part of Mr. Tigar's
20 request, I have to look back at the transcript, but if that is
21 part of his request, certain documents of that nature might be
22 classified in whole or in part and if that is true, then the
23 government would need to make application to the court pursuant
24 to the Classified Information Procedures Act for unclassified
25 substitution or some other appropriate form of relief.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3199
476SSAT7
1 THE COURT: Okay.
2 Anything else on this?
3 All right. We can begin to go over the documents if
4 the parties wish beginning with 2008. I have the government's
5 letter asking me to begin to go over those documents and the
6 first document was 2008.
7 I haven't ruled on the Sheikh Abdel Rahman will and
8 the Sheikh Abdel Rahman will was not on the list of documents.
9 MR. BARKOW: I assumed, your Honor, that 2057, the
10 will, and 2070, the court since we had had discussion about it,
11 I assumed that was under consideration and so I was asking for
12 additional ones.
13 THE COURT: Well, I left you -- I mean, I got a letter
14 back from the defendants with respect to the will and I raised
15 an issue with respect to 2057, whether it was being offered for
16 the truth. If it were being offered for the truth, I pointed
17 out that the government letter hadn't really responded to the
18 objection.
19 MR. BARKOW: I thought, your Honor, that the last time
20 this came up in court orally the court made that point and I
21 have not filed a letter since then, nor have I seen a letter
22 since then from the defendants, and so last time this came up
23 we essentially agreed with the court that perhaps the better
24 method of analysis of this exhibit is to look at it in terms of
25 its importance being in the fact that it was made, maybe akin
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3200
476SSAT7
1 to a threat or that sort of statement, and not for the truth.
2 So we would advance that as the primary theory of
3 admissibility with respect to 2057. However, since 2057
4 contains the same content as 2070, we do think that they
5 interlock in a sense and that 2070 authenticates 2057 as a
6 statement by Abdel Rahman and so 2057 could properly be viewed
7 as a statement by Abdel Rahman exhorting people to commit
8 violence on his behalf and, therefore, as a statement in
9 furtherance of the conspiracy or an overt act in furtherance of
10 the conspiracy.
11 THE COURT: I had urged last time that you be more
12 precise with respect to the documents that were being offered,
13 why they were being offered, what the objection was, what the
14 response was, against whom it was being offered, and for what
15 purpose. And one of the reasons for that was when I go over
16 the list, as the point I made last time, 27(b) the objection as
17 I was going on the defendant Stewart's list so we were at 2070
18 and 2070 the objections were relevance and 403. And so I
19 addressed relevance and 403. There is an additional objection
20 with respect to 2057 which was hearsay.
21 Now, hearsay is -- you had begun to answer hearsay as
22 to all defendants on the grounds of a co-conspirator statement
23 in furtherance of the conspiracy. And then you have to ask
24 which conspiracy, who are the members, which was not responded
25 to. And it's not helpful to the analysis of the exhibits to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3201
476SSAT7
1 say, well, 2057 relates to 2070 so use 2070 to support 2057,
2 there it is.
3 MR. BARKOW: I may have misunderstood the court's
4 questions. In light of June 30 I did set forth with respect to
5 both 2070 and 2057 which conspiracies the statements are in
6 furtherance of. And they were made in furtherance of the
7 conspiracy charged in Count 2.
8 THE COURT: And as to Count 2 not all of the
9 defendants are charged as co-conspirators.
10 MR. BARKOW: Correct. But since Count 2 is a
11 predicate that must be proven in order to prove Counts 4 and 5,
12 it is admissible as to those defendants who are charged in
13 Counts 4 and 5.
14 THE COURT: But it would not be admissible for the
15 truth because there would be the absence of the agency which
16 was what I had -- which is what I was trying to set out with
17 some care last time and so it's not an answer to say, well,
18 it's in furtherance of the Count 2 conspiracy if it's being
19 offered for the truth. So you have to ask, which is what I had
20 asked you to do, whether it was being offered for the truth.
21 For example, is it a statement that says -- I used the example
22 from Giganti that, you know, these are other members of the
23 conspiracy, these are principals, I need someone's permission,
24 or the like. Is it being offered for the truth of any of the
25 statements or is it being offered for the statement by Omar
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3202
476SSAT7
1 Abdel Rahman not for its truth, and then I deal with the
2 questions of relevancy and 403, but there is no 801-802 issue.
3 MR. BARKOW: Your Honor, I apologize if I
4 misunderstood the court's questions.
5 THE COURT: That is all right.
6 MR. BARKOW: But since we are offering it both as an
7 act akin to a threat and under 801(d)(2)(e) it's not hearsay,
8 it is not being offered for its truth, it's being offered as an
9 act. Because under 801(d) it defines statements of
10 co-conspirators in furtherance of conspiracies as nonhearsay
11 and so we are not offering it to prove the truth of its
12 contents. We are offering it because it was a statement made
13 by Abdel Rahman, an act in furtherance of the Count 2
14 conspiracy.
15 I may just be misunderstanding the issue posed here,
16 but we could certainly propose a limiting instruction of some
17 sort since we view it as in furtherance of the Count 2
18 conspiracy and therefore as a predicate because Count 2 must be
19 proven to prove Counts 4 and 5 admissible against the others.
20 But it's not being offered to prove the truth of the matters
21 asserted therein. It's being offered as nonhearsay.
22 THE COURT: Well, the parties are always welcome to
23 disagree and give me their views on the subject. Hearsay is
24 under 801(c) a statement offered for the truth. If the
25 statement isn't offered for the truth, it's not hearsay.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3203
476SSAT7
1 801(d) makes exceptions if a statement is offered for the
2 truth, the rule defines certain kinds of statements, such as
3 those by agents, alleged co-conspirators in furtherance of the
4 conspiracy, is one of those, defined as not hearsay. So it
5 doesn't make a lot of sense to argue to me we are not offering
6 it for the truth because it fits within the co-conspirator
7 exception. If it's not offered for the truth, it's not hearsay
8 under 801(c) and you don't go to the co-conspirator or as the
9 defense argues in their letter, co-conspirator nonhearsay.
10 So it's not sort of correct in terms of the analysis
11 of the rules to argue both we are not offering it for the truth
12 and unless it's an argument in the alternative, we are not
13 offering it for the truth, if it were offered for the truth it
14 would be co-conspirator nonhearsay, and then you have to ask
15 yourself whether it's a statement that was made in furtherance
16 and during a conspiracy of which the declarant and the
17 defendant against whom it was offered were both members. And
18 it is as to that that I directed your attention as to who is
19 being charged in the Count 2 conspiracy.
20 Now, the question of whether someone is an alleged
21 co-conspirator for purposes of 801(d) is an issue that goes to
22 offering what would otherwise be hearsay against persons for
23 the truth. It is, as I said last time, a different issue from
24 the question of admissibility of evidence. It's one of the
25 factors in terms of admissibility of evidence but it's only one
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3204
476SSAT7
1 and so I had asked that you at least think about that. That is
2 why I didn't think that I had finally resolved the issues under
3 the will and if you want to leave them with me to resolve, I
4 will resolve both 2070 and 2057, but I have indicated my
5 thinking on that.
6 MR. BARKOW: Your Honor, I think what might be best
7 with respect to those two exhibits, 2070 and 2057, if I
8 submitted a brief letter to your Honor making clear what I am
9 not articulating very clearly right now, and I will do that
10 tonight if that is okay with the court, and then leave to your
11 Honor the determination of admissibility with respect to those
12 two exhibits. The short answer I think is that we do view them
13 as alternative theories. But we will articulate that short
14 answer in a letter to the court if that is acceptable to the
15 court.
16 THE COURT: Sure. And I will listen to the
17 defendants.
18 2008.
19 2008 is a document as to which all defendants object
20 and it's sought to be admitted only against Sattar with respect
21 to knowledge, intent, motive, state of mind. It's not clear to
22 me what it is that is really being offered in 2008. The entire
23 exhibit is a book in Arabic and it has a cover and --
24 MR. BARKOW: That is correct, your Honor. We are
25 offering the translation of the cover because the entire book
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3205
476SSAT7
1 is in Arabic. The translation that we have prepared is only of
2 the cover and so because the entirety of the contents of 2008,
3 the Arabic document, is essentially unreadable to the jury, we
4 offer the whole book but we are happy to only offer the cover
5 as well because that is the only part we are translating. I am
6 not sure -- I think the defendants have an issue either way but
7 we are willing to redact it to the cover. We are willing to
8 admit the whole thing but the only part that we are offering a
9 translation of is the cover, which is our 2008T exhibit.
10 THE COURT: All right.
11 MS. BAKER: Your Honor, may I have permission to step
12 out for a few minutes and then return?
13 THE COURT: Sure.
14 MS. BAKER: Thank you.
15 THE COURT: No problem.
16 MR. FALLICK: Your Honor, we are objecting to the
17 exhibit both on relevance grounds and on 403 grounds. The book
18 cover concerns the assassination of President Sadat in the
19 early 1980s and has no relevance to any of the issues in the
20 charges here. There is nothing even in the indictment
21 concerning the assassination of President Sadat and on 401
22 grounds, certainly on relevance grounds we object, and on 403
23 grounds as well, prejudice.
24 MR. TIGAR: Our position, your Honor, is relevance,
25 but of course the government says there could be a limiting
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3206
476SSAT7
1 instruction. The problem is that Ms. Stewart is on trial
2 because she represented Sheikh Abdel Rahman. That is one of
3 the things the government is talking about. He was acquitted
4 in that case. So as to us we feel it is prejudicial and the
5 court, all I can say is that looking at the book, it is
6 certainly sensational and we think it is so sensational that
7 just admitting the cover -- and you can't judge a book by its
8 cover -- would be prejudicial in the sense that it would
9 surpass the power of a limiting instruction.
10 The court asked me last time are there any more
11 limiting instruction cases? Well, there is one. Shepherd v.
12 United States, and I didn't bring it with me. Does the court
13 recall? That is Justice Cardoza's opinion about the dying
14 declaration when he speaks in Cardoza language of filament too
15 fine and says that the limiting instruction would not suffice
16 in that case, and I am embarrassed that I hadn't remembered it
17 and I am doubly embarrassed that I didn't bring it with me.
18 But that, it seems to me, is the sort of concern that we have
19 here.
20 THE COURT: All right. The government?
21 MR. BARKOW: Your Honor, the relevance that we proffer
22 with respect to this book, again which is offered only against
23 Mr. Sattar and to which we would embrace a limiting instruction
24 to that and also to the fact that it is offered for the limited
25 purpose of being relevant to his intent, knowledge, state of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3207
476SSAT7
1 mind, et cetera, is offered to show the fact that he had the
2 book and the fact that he was interested in its contents. That
3 would be the inference and certainly the argument could be made
4 the other way that people don't read every book they have in
5 their possession, they don't agree with every book in their
6 possession, they don't espouse the positions voiced in books in
7 their possession. But we think it is relevant that when a book
8 that a person owns shows something about their state of mind.
9 It shows something about what they are interested in. It shows
10 something about what their views are on certain subjects.
11 As to the assassination of President Sadat, it is
12 mentioned in some of the Abdel Rahman speeches, the fact of the
13 assassination.
14 And then, finally, with respect to the acquittal of
15 Abdel Rahman, that I don't remember exactly how, but that is in
16 evidence already and so certainly there is no allegation being
17 made that he is guilty of that and to the extent there is
18 evidence of it so far the only evidence before the jury, and I
19 don't remember exactly where it was, is that he was acquitted.
20 So this book shows or tends to show Mr. Sattar's knowledge of
21 the underlying event, that is, of the assassination, and also
22 tends to show his interest in the subject matter.
23 MR. FALLICK: I think I will sit down.
24 THE COURT: I will sustain the objection.
25 The issues with respect to motive, intent, state of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3208
476SSAT7
1 mind, go to the issues in this case. The fact that someone is
2 interested in the contents of the book and that it alleges --
3 that the cover allegedly tells us something about what one
4 defendant was interested in is not very relevant to the issues
5 for the jury to decide with respect to motive, intent, state of
6 mind with respect to all of the issues in this case,
7 particularly so when the government says after all, Omar Abdel
8 Rahman was acquitted of the Sadat assassination which then
9 leaves the question what the relevance is of the fact that
10 someone in this case is interested in the Sadat assassination.
11 Does it make it more likely that the motive, intent, state of
12 mind for any of the charges in this case exist? And it does
13 have a 403 overlay because it's a cover picture of a blood
14 splattered picture of President Sadat, as well as pictures of a
15 grenade and bullets. So that the relevance of this exhibit
16 compared to the possible -- compared to the danger of unfair
17 prejudice is such that at this point based upon the proffers
18 thus far I will sustain the objection to Government Exhibit
19 2008.
20 That leads then to Government Exhibit 20031.
21 Government Exhibit 20031 is offered solely against Sattar and
22 the only person objecting to this exhibit are Stewart and
23 Yousry, Ms. Stewart and Mr. Yousry, and I looked at the
24 exhibit. I have looked at the proffer. I have looked at the
25 objection. The objection is by Ms. Stewart and Mr. Yousry is
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3209
476SSAT7
1 relevance and 403. If the parties want to be heard further on
2 that?
3 MR. BARKOW: Only, your Honor, if you have questions
4 or quite honestly if you are going to rule it's not admissible
5 because I would like to make the argument as to why we think it
6 is.
7 THE COURT: Actually I think this is admissible. If
8 the parties want to argue to me I am prepared to listen to the
9 argument. I heard these arguments the other day though in
10 overview.
11 MR. TIGAR: Very briefly.
12 I have been heard before about severance and about
13 limiting instructions and I won't make those arguments again.
14 The court has ruled. But I was rereading the other night the
15 language of Justice Harlon in the Noto case at pages 299 and
16 300 of 367 U.S., and it seems to me, your Honor, that the risk
17 of vicarious attribution is particularly high with respect to
18 an inflammatory document such as this and that we fall within
19 the rationale of that statement which was then picked up and
20 applied in Spock because for all of its content, which we might
21 disagree, it is First Amendment protected expression and so it
22 is not simply a risk that we get harm from something else that
23 is admitted as to somebody, it's that we get harm as a result
24 of something admitted against somebody that Mr. Sattar has an
25 absolute first amendment right to possess, to read, and to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3210
476SSAT7
1 believe. And because it is not a call to imminent lawless
2 violence, it is a true turn-of-the-century forgery.
3 THE COURT: All right.
4 THE COURT: I will allow 2031 to be admitted solely
5 against Mr. Sattar with respect to intent, motive, state of
6 mind. It is relevant to the defendant Sattar's motive, intent
7 and state of mind. The publication begins with an introduction
8 which discusses jihad against the menace referring to the
9 Jewish -- alleged Jewish conspiracy. It is relevant to his
10 motive, intent, state of mind particularly in connection with
11 the October 2000 fatwah mandating the killing of Israelis
12 everywhere as alleged in paragraphs 30W to V. While defendant
13 Stewart and Yousry object on the grounds of relevance and 403,
14 it is plainly relevant for the reasons that I have explained.
15 It's not barred under 403 because its relevance is not
16 outweighed by the danger of unfair prejudice and it's not
17 sensational. It would not unfairly prejudice the defendant
18 Sattar against whom it's offered or the other defendants. And
19 with respect to the 403 analysis, I wholly appreciate that as
20 Judge Sand said in Bin Laden and as the Court of Appeals said
21 in Figueroa, I think, that in making a 403 analysis in a joint
22 trial I should also consider the 403 analysis with respect to
23 even defendants against whom evidence is not offered. And so I
24 consider the limiting instructions and the ability of the jury
25 to follow those limiting instructions and in this case the jury
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3211
476SSAT7
1 can reasonably follow those limiting instructions because this
2 goes to the motive, intent and state of mind of Mr. Sattar and
3 the jury can follow those instructions and can reasonably
4 divide the evidence with respect to this exhibit.
5 (Continued on next page)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3212
476LSAT8
1 (In open court; jury not present)
2 THE COURT: Now, so, subject to limiting instruction,
3 2031 would be admissible.
4 We now go to three documents: 2044, 2045 and 2054.
5 And as to each of these documents, they are offered only
6 against Mr. Sattar, and they're offered with respect to
7 knowledge, intent, motive, state of mind, and Ms. Stewart and
8 Mr. Yousry object on the grounds of relevance, hearsay and 403.
9 I have a view. I'm perfectly happy to give you a
10 preliminary view with respect to the three articles, and have
11 you then explain to me why you -- anyone may disagree with
12 that.
13 I would find 2044 and 2045 admissible subject to the
14 limiting instructions, admissible against Sattar. I would not
15 admit -- I intend not to admit 2054 because the ultimate
16 content of the newspaper article, even with the limiting
17 instruction with respect to the newspaper article, is, at least
18 at this point, subject to any other evidence in the case, is so
19 removed, at least as I see it, from relevance that 403
20 overcomes it, because the gist of the article is simply that
21 people have been charged. So we have a newspaper article which
22 reports that people have been charged. And so it puts people
23 on notice that people have been charged in a bomb plot in 1995.
24 Now, perhaps there are other links in the evidence
25 that will make this more significant, but at this point I would
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3213
476LSAT8
1 be inclined not to admit 2054; and to admit 2044 and 2045 under
2 limiting instructions.
3 MR. BARKOW: Your Honor -- and I think the Court
4 appreciates what our theory might be on this. I think what I
5 just wanted to point out, on the top of that exhibit, the
6 handwriting, is -- the handwriting that was on the exhibit when
7 it was found -- I wanted to make sure the Court was aware of
8 that.
9 I have nothing else to add. The Court understands our
10 theories on these exhibits. I'm not arguing with the Court's
11 ruling. I just want to make sure that the Court is aware that
12 the handwriting at the top --
13 THE COURT: The handwriting on the top indicates --
14 doesn't add anything because all it does is to show that the
15 person in whose -- the person in whose house it was found made
16 a clipping and made a note that it was found in a newspaper on
17 a certain date.
18 MR. BARKOW: I have nothing more to add about the
19 exhibits. I just wanted to make sure the Court was aware of
20 that. We're not going to argue with the Court's ruling with
21 respect to these three exhibits.
22 THE COURT: All right. I will exclude -- I'll sustain
23 the objection to Government Exhibit 2054.
24 I will admit 2044 and 2045 as relevant to --
25 admissible only against Mr. Sattar, relevant to Mr. Sattar's
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3214
476LSAT8
1 knowledge, intent and state of mind.
2 These clippings would be subject to the two limiting
3 instructions, both the instruction Mr. Sattar sought with
4 respect to a limitation of newspaper clippings, as well as with
5 respect to a limiting instruction that is offered only against
6 Mr. Sattar and not again the other defendants.
7 There's no valid hearsay objection because they're not
8 offered for the truth of anything. It says, but for knowledge,
9 intent, state of mind of Mr. Sattar from the articles.
10 The content of the articles are relevant to the issues
11 in the case, and the content of the articles is -- the
12 relevance of that content is not outweighed by any danger of
13 unfair prejudice. The jury can consider these articles only
14 against Mr. Sattar and for the limited purpose for which
15 they're offered.
16 And so I've considered the 403 argument that's raised
17 by Defendants Stewart and Yousry, and conclude that the jury
18 can follow the limiting instructions with respect to this
19 evidence.
20 That then takes me to Government Exhibit 2040, which
21 is a speech by Omar Abdel Rahman about Jihad, which is sought
22 to be offered against all defendants. Now, the defendants
23 Stewart and Yousry object on the grounds of hearsay and
24 relevance and 403, which takes us back, if there is an
25 objection with respect to hearsay on the speech by Omar Abdel
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3215
476LSAT8
1 Rahman, whether it's being offered for the truth. And I
2 don't -- the government's explanation is not very illuminating
3 to me on this, because it just says it's being offered against
4 all defendants without limiting instructions as to defendants
5 against whom admitted, and I think this is a -- this is an
6 exhibit as to which the government should consider against whom
7 this is offered, and whether -- what the theories of
8 admissibility are.
9 MR. BARKOW: Your Honor, I think this is in the same
10 mode as 2070 and 2057, so I will incorporate it as well, since
11 it's a similar kind of piece of evidence.
12 THE COURT: Not clear, because you have to look at the
13 speeches themselves and ask whether the speech itself could be
14 viewed as simply a statement which is like a verbal act, or
15 whether it's -- there is other content to the statement, and
16 you really have to look at the particular statement to answer
17 that question.
18 Looking at 2042, 2046, C and E, reading over each of
19 those, they are offered, unlike 2040, they are offered only
20 against Mr. Sattar, for his knowledge, intent, motive, state of
21 mind. So --
22 MR. BARKOW: I can explain that.
23 THE COURT: All right.
24 MR. BARKOW: 2040 was a tape. And we can adduce
25 testimony that someone would recognize Abdel Rahman's voice and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3216
476LSAT8
1 so it would identify the tape as a statement in fact by Abdel
2 Rahman. 2040 C is the translation of it. The other exhibits
3 your Honor just listed were found in paper form in Mr. Sattar's
4 home. And so they're -- they purport to be speeches -- I'm
5 sorry, transcripts of speeches by Abdel Rahman, but there's no
6 accompanying tape which can be verified to be spoken by him.
7 THE COURT: You should think about whether you're
8 confusing authenticity with hearsay. Because even if you have
9 a tape of Omar Abdel Rahman speaking out of court, that's
10 hearsay. And so you have to ask whether that speech is being
11 offered for the truth of what's said or rather for someone's
12 state of mind.
13 But sufficient unto the day, 2042, 2046C and E, are
14 offered only against Mr. Sattar for his knowledge, intent,
15 motive, state of mind,. As to those three, there is an
16 objection only by Ms. Stewart and Mr. Yousry on the grounds of
17 hearsay. But those are not hearsay because they're not offered
18 for the truth, but rather for the effect on Mr. Sattar's
19 knowledge, intent, motive, state of mind. And they are
20 relevant to that. I've read all of them. It is not offered
21 against Miss Stewart or Mr. Yousry. Each of those are
22 documents as to which the jury can easily follow a limiting
23 instruction.
24 And there is no realistic 403 objection. They don't
25 differ markedly from some of the other speeches of Omar Abdel
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3217
476LSAT8
1 Rahman. The speeches by Omar Abdel Rahman received during the
2 trial are available for Ms. Stewart's knowledge and intent,
3 state of mind, having heard those speeches. These speeches
4 are -- can reasonably be segregated by the jury as to the
5 intent and state of mind of Mr. Sattar, so subject to limiting
6 instructions, 2042, 2046, C and E, are admissible.
7 And the government is going to think about 2040.
8 MR. TIGAR: May I make a brief comment for the record?
9 THE COURT: Sure.
10 MR. TIGAR: Your Honor, with respect, it's precisely
11 the fact that many speeches by Omar Abdel Rahman are in
12 evidence against Ms. Stewart as having been received in the
13 trial that, in our view, makes it problematic that jurors will
14 be able to abide by a limiting instruction not to consider
15 against Ms. Stewart speeches that seem to have much the same
16 theme. And that is the basis to our 403 objection. You know,
17 at some point the jurors' ability to absorb and apply limiting
18 instructions is -- you know, too long a sacrifice can make a
19 stone of the heart.
20 THE COURT: But I've been very careful with respect to
21 403 in considering 403 with respect to each of the defendants,
22 and these are not -- these individual 403 issues I've
23 considered with respect to each of the defendants, and it is
24 not reasonable that the jury could not follow these limiting
25 instructions. This case is not so big in terms of the number
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3218
476LSAT8
1 of defendants and the number of conspiracies that the jurors
2 cannot follow limiting instructions. The individual pieces of
3 evidence, I've considered and asked whether the jury can follow
4 the limiting instruction with respect to these pieces of
5 evidence. And I only admit those that I believe that the jury
6 reasonably can follow all those instructions.
7 The Supreme Court in Richardson has made it clear how
8 many issues -- which are far more difficult for a jury to
9 follow than the limiting instructions that I'm dealing with
10 here -- that the jury can be expected to follow those
11 instructions. If I thought that there were some instructions
12 that the jury could not reasonably follow -- and I've done it
13 already today, I've excluded the evidence.
14 MR. TIGAR: I wasn't attempting to argue -- well,
15 maybe I was attempting to argue with your Honor.
16 THE COURT: The other issue that you raise under 403
17 is simply the number of speeches. But as I said, in allowing
18 the full text of the speeches to be read over a defense
19 objection to reading only portions of the speeches, it's the
20 full context of the speech that's necessary to put individual
21 passages into context. The speeches could be made a lot
22 shorter and reduced, but the defendants, as is their right,
23 object to doing that. But it doesn't make it a 403 argument
24 then that we're taking time to read all of these speeches,
25 large portions of which simply to put other comments into
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3219
476LSAT8
1 context.
2 All right. That takes me about halfway through. And
3 there's -- I would -- I'll continue to go over the documents.
4 Do you have any guidance for me with respect to time at this
5 point?
6 MR. BARKOW: Your Honor, I think that given the
7 Court's rulings, we will assess, but I think we might be okay
8 at this point in terms of time, and so it's not an urgent
9 matter.
10 THE COURT: All right. Okay.
11 Good afternoon, all.
12 MR. TIGAR: 9:15, your Honor, or 9:30?
13 THE COURT: 9:15. I try to bring you in a little
14 early in case anything should happen. I don't foresee any
15 applications on tomorrow morning, so we should be able to bring
16 in the jury at 9:30.
17 (Adjourned to Wednesday, July 7, 2004, at 9:15 a.m.)
18 o 0 o
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3220
1 INDEX OF EXAMINATION
2 Examination of: Page
3 PAUL SLOPER
4 Direct By Mr. Barkow . . . . . . . . . . . . 3023
5 MICHAEL T. ELLIOTT
6 Direct By Ms. Baker . . . . . . . . . . . . 3041
7 Voir Dire By Mr. Tigar . . . . . . . . . . . 3065
8 Direct By Ms. Baker (cont.) . . . . . . . . 3083
9 Voir Dire By Mr. Tigar . . . . . . . . . . . 3093
10 Direct By Ms. Baker (cont.) . . . . . . . . 3095
11 Cross By Mr. Tigar . . . . . . . . . . . . . 3142
12 Redirect By Ms. Baker . . . . . . . . . . . 3185
13 Recross By Mr. Tigar . . . . . . . . . . . . 3192
14 Redirect By Ms. Baker . . . . . . . . . . . 3194
15 o 0 o
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3221
1 GOVERNMENT EXHIBITS
2 Exhibit No. Received
3 3554D . . . . . . . . . . . . . . . . . . 3027
4 3554B . . . . . . . . . . . . . . . . . . 3029
5 3554B (back side) . . . . . . . . . . . . . 3030
6 3554C . . . . . . . . . . . . . . . . . . 3031
7 2701 . . . . . . . . . . . . . . . . . . 3033
8 1307 . . . . . . . . . . . . . . . . . . 3047
9 1306 . . . . . . . . . . . . . . . . . . 3052
10 1312 . . . . . . . . . . . . . . . . . . 3056
11 1308 . . . . . . . . . . . . . . . . . . 3058
12 1311 . . . . . . . . . . . . . . . . . . 3108
13 1305 . . . . . . . . . . . . . . . . . . 3123
14 1309 . . . . . . . . . . . . . . . . . . 3129
15 1001N . . . . . . . . . . . . . . . . . . 3134
16 o 0 o
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
HTML by Cryptome.