2302

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x

3 UNITED STATES OF AMERICA,

4 v. S12 93 Cr. 180 KTD

5 RAMZI AHMED YOUSEF, a/k/a "Azan Muhammad," 6 a/k/a "Khurram Khan," a/k/a "Rashed," 7 a/k/a "Kamal Ibraham," a/k/a "Abdul Basit," 8 a/k/a "Adam Ali Qasim," a/k/a "Naji Haddad," 9 a/k/a "Dr. Paul Vijay," a/k/a "Dr. Adel Sabah," 10 a/k/a "Amaldo Forlani," a/k/a "Muhammad Ali Baloch," 11 EYAD ISMOIL, a/k/a "Eyad Ismail," 12 a/k/a "Iyad Mahmoud Ismaeel Najim," ABDUL RAHMAN YASIN, 13 a/k/a "Aboud," ABDUL HAKIM MURAD, 14 a/k/a "Saeed Ahmed," and WALI KHAN AMIN SHAH, 15 a/k/a "Grabi Ibrahim Hahsen,"

16 Defendants.

17 ------------------------------x

18

19 July 17, 1996 9:30 a.m. 20

21 Before: 22 HON. KEVIN THOMAS DUFFY, 23 District Judge, 24 and a jury

25

2303

1

2

3 APPEARANCES 4

5 MARY JO WHITE, United States Attorney for the 6 Southern District of New York DIETRICH SNELL, 7 MICHAEL GARCIA, Assistant United States Attorneys 8

9 ROY KULCSAR, Attorney for defendant Yousef 10

11 CLOVER BARRETT, BERNARD UDELL, 12 Attorneys for defendant Murad

13 DAVID GREENFIELD, 14 Attorney for defendant Shah

15 Also Present: Lillie Grant, Paralegal U.S. Attorney's Office 16

17 AZIZ ISMAIL HASSAM MOWAD 18 MIRA RIVERA

19

20

21

22

23

24

25

2304

1 (Trial resumed)

2 (Jury not present)

3 THE COURT: I have gone through the 3500 material

4 on Ferro. I gather he is strictly a chain of custody

5 person.

6 MR. SNELL: That is correct, your Honor, as far

7 as the government is concerned. I understand that counsel

8 for Mr. Murad wished to pursue other matters as well with

9 him, and in the interests of expediting things, we are not

10 going to object to that.

11 THE COURT: Guys, when I say 9:30, I mean 9:30.

12 I don't want to be reduced to doing things like Eddie

13 Weinfeld used to do but I will do it. I will put the jury

14 in the box and let them sit and wait and see who comes late.

15 MR. UDELL: Apologize, your Honor.

16 THE COURT: Mira Rivera is going to be the

17 interpreter again today.

18 Do you have another witness after Ferro?

19 MR. SNELL: Yes, your Honor, but we anticipate

20 that Ferro may be the entire day.

21 THE COURT: Not on direct.

22 MR. SNELL: No, certainly not on direct, but

23 taking the cross into consideration.

24 MR. GREENFIELD: Your Honor, might we take the

25 time on another matter?

2305

1 THE COURT: Yes.

2 MR. GREENFIELD: Monday I received a copy of a

3 letter advising me that the government is in possession of a

4 statement of my client, that he identified himself as

5 Ibriham Rabi Hassan of Norway when he was first approached

6 by Philippine law enforcement on or around January 11, 1995.

7 The government says they intend to elicit this statement

8 during the direct examination of whoever the witness is who

9 says the statement was made. I tried to ascertain if and

10 when the government came into receipt of this statement.

11 What I think I learned, and I am sure the government will

12 correct me if I misstate it, is, the witness, only within

13 the last week or so or 10 days -- I don't want to put a time

14 limit on it -- told the government of this statement. But

15 the witness had been interviewed on prior occasions and

16 never mentioned the statement. I think that is what I

17 heard. I spoke to Mr. Garcia about it, and maybe he could

18 comment and make sure that I have stated it correctly.

19 THE COURT: Government?

20 MR. GARCIA: Your Honor, it is a fairly accurate

21 representation. This witness arrived in New York

22 approximately two weeks ago. He was interviewed about a

23 week ago and informed us that the statement had been made.

24 It is an oral statement, it is not in writing anywhere.

25 This witness was interviewed in Manila. He was considered

2306

1 primarily a chain of custody witness at the time, and he was

2 not asked about this matter.

3 THE COURT: I assume you thought you had a case

4 without this witness's testimony as to this particular

5 matter.

6 MR. GARCIA: That is correct.

7 THE COURT: We will see whether you did or you

8 didn't. It is not coming in.

9 MR. GREENFIELD: Thank you, your Honor.

10 MR. GARCIA: Judge, is this also a good time to

11 raise one other issue with the court?

12 THE COURT: Yes.

13 MR. GARCIA: This is something the government and

14 defense counsel have been working on. It is our

15 understanding that counsel for Mr. Murad will seek to

16 introduce portions of certain tapes through this witness on

17 cross-examination. The government in turn would seek to

18 introduce other portions of the same tape on their redirect.

19 We have, I believe, worked out an agreement with Miss

20 Barrett on a redacted transcript and a redacted tape

21 recording, copies of which have been passed out to other

22 counsel, and have also agreed, subject to the court's

23 approval, that during Miss Barrett's presentation of her

24 section of the tape that the government sections would also

25 be played at that time, to save time.

2307

1 THE COURT: One playing of the tapes, is that

2 what you are telling me?

3 MR. GARCIA: Exactly, your Honor.

4 THE COURT: Is that the deal?

5 MS. BARRETT: I have no problem with the

6 government playing the tape at the same time that we play

7 the section, your Honor, but --

8 THE COURT: I can't hear you and I doubt if

9 Martha can either. You haven't done something and that is

10 all I can hear. What is it?

11 MS. BARRETT: I have no problem with the

12 government playing their section of the tape at the same

13 time that we play ours, your Honor. It is just that I would

14 like to be able to play the tape once continuously, and then

15 to aid in my cross-examination I would like to be able to

16 play segments in connection with certain questions that I

17 plan to ask.

18 THE COURT: Yes, sure.

19 MS. BARRETT: That would be OK?

20 THE COURT: Sure.

21 MR. GREENFIELD: I can envision a problem, your

22 Honor, and maybe the government knows the answer to it. Are

23 there any Bruton problems with respect to this?

24 MR. GARCIA: None, your Honor. There is no

25 mention of Mr. Greenfield's client and all references to Mr.

2308

1 Yousef have been removed.

2 THE COURT: I assume this is the same tape we

3 heard at the hearing.

4 MR. GARCIA: That is correct, your Honor,

5 portions of that tape.

6 MR. GREENFIELD: It was so long ago.

7 MR. GARCIA: One other matter. There were three

8 instances where there was a disagreement over the

9 transcript -- minor in terms of length disagreements. As we

10 did in the previous case, we inserted both versions, one in

11 italics and one in print, to indicate disagreement.

12 THE COURT: Get the witness, bring him out.

13 (Jury present)

14 ALBERT I.D. FERRO,

15 called as a witness by the government,

16 having been duly sworn, testified as follows:

17 THE COURT: And you were the interpreter, Mira.

18 Everybody has a smile for you. That's nice. All right.

19 (Continued on next page)

20

21

22

23

24

25

2309 1 DIRECT EXAMINATION

2 BY MR. SNELL:

3 Q. Mr. Ferro, how are you employed?

4 A. I work for the government of the Philippines.

5 Q. What do you do for the government of the

6 Philippines?

7 A. I am a police officer.

8 Q. Do you work for the Philippine National Police?

9 A. Yes, sir.

10 Q. How long have you been working for the Philippine

11 National Police?

12 A. From 1991 to the present.

13 Q. Prior to 1991, what were you doing?

14 A. I was with the armed forces.

15 Q. What branches of the armed forces were you with?

16 A. With the Philippine Constabulary.

17 Q. What is your current assignment within the

18 Philippine National Police?

19 A. I am assigned to the Intelligence Command as a

20 branch chief of a group.

21 Q. What group is that?

22 A. It is the Special Investigation Group.

23 Q. Where are your offices located?

24 A. At Camp Crame.

25 Q. Is that in Quezon City?

2310 1 A. Yes, sir.

2 Q. Just so we are all clear about the geography, is

3 Quezon City part of what is known as Metro Manila?

4 A. Yes, sir.

5 Q. Mr. Ferro, do you have a particular rank or

6 title?

7 A. Yes, sir. I am a chief inspector.

8 Q. Does the title of chief inspector equate to some

9 title within the military?

10 A. Yes, sir.

11 Q. What rank is that?

12 A. I am a major.

13 Q. How long have you had that rank?

14 A. From 1995.

15 Q. Let me direct your attention to January 7, 1995.

16 Did you work on that date?

17 A. Yes, sir.

18 Q. What is the first thing you remember happening

19 that day in connection with your job?

20 A. I was given instructions by my boss, Colonel

21 Garcia, to report to his office at 8:00.

22 Q. Where is Colonel Garcia's office?

23 A. It is in the Intelligence Command headquarters.

24 Q. Did you go there?

25 A. Yes, sir.

2311 1 Q. What happened when you arrived at Colonel

2 Garcia's office?

3 A. When I got there, Colonel Delfin, who is the

4 deputy of Colonel Garcia, was waiting there for us, and I

5 was told that we were going to another office.

6 Q. Did you then go to another office?

7 A. Yes, sir.

8 Q. What office did you go to?

9 A. We went to the Presidential Security Group

10 office.

11 Q. Where is that located?

12 A. It is at the Malacanang Park in Manila.

13 Q. Just to clear something up for us, is there a

14 difference between Malacanang Park and Malacanang Palace?

15 A. Malacanang Palace is where the President of the

16 Philippines holds office, and Malacanang Park is where the

17 security forces of the President is located.

18 Q. What happened when you arrived at the offices at

19 Malacanang Park?

20 A. We entered the conference room in the offices of

21 the PSG, and there was a long table, a conference table in

22 that office, and likewise there were other officers of the

23 PSG.

24 Q. Would you remind us what the PSG is.

25 A. It is the Presidential Security Group.

2312 1 Q. Which officers of the Presidential Security Group

2 do you remember being present in this conference room?

3 A. The officers of the PSG that I know personally

4 and that I recall that were there were Colonel Razon and

5 Colonel Ferrer.

6 Q. Were other officers there as well?

7 A. There were other officers present, but I don't

8 know them personally and I don't know who they are.

9 Q. When you went inside the conference room, what

10 did you see there?

11 A. On top of this table were documents, papers,

12 business cards, ID's, a laptop computer, a briefcase, and a

13 watch.

14 MR. SNELL: Your Honor, if I might, if the

15 witness could be shown what have been marked Government's

16 Exhibits 301 and 301A.

17 Q. Sir, do you recognize that item and that item

18 that is contained within the black case that is in front of

19 you?

20 THE COURT: Pick it up.

21 MR. SNELL: Actually, it is not necessary to use

22 the gloves for this exhibit if you don't want to.

23 A. Yes, sir.

24 Q. What do you recognize those items to be?

25 A. This is a laptop computer.

2313 1 Q. Does it look familiar to you?

2 A. Yes, sir, this is the item, one of the items that

3 I saw on top of the conference table at PSG headquarters.

4 MR. SNELL: Now, your Honor, if another series of

5 exhibits could be handed to the witness.

6 THE COURT: What are they?

7 MR. SNELL: 302, 351B, 302C, 351C and D, and

8 302B.

9 Q. First, if you could take a look at the attache

10 case that is actually under those exhibits, do you recognize

11 that? I believe it is marked Government's Exhibit 302.

12 DEFENDANT YOUSEF: Objection, your Honor.

13 THE COURT: It is all right.

14 A. Yes, sir.

15 Q. What do you recognize that to be?

16 A. This is one of the items that I saw on the

17 conference table.

18 Q. Would you take a look, please, at 351B, and that

19 is the photograph. Do you recognize that?

20 A. Yes, sir.

21 Q. What does that photo show?

22 A. This is a digital watch, brand name Casio, and

23 there are also wires in the photograph.

24 Q. For the record, what does the government exhibit

25 sticker say? What is the number on that photo?

2314 1 A. 351C.

2 MR. SNELL: Could the witness please be shown

3 351B.

4 DEFENDANT YOUSEF: Objection, your Honor.

5 THE COURT: No.

6 Q. Do you recognize what is shown in 351B?

7 A. Yes, sir.

8 Q. What is it?

9 A. This is a pipe that contained chemicals, and this

10 is also --

11 DEFENDANT YOUSEF: Objection.

12 THE COURT: No.

13 A. -- and this is also an item that was shown to us

14 on that conference table.

15 Q. Now would you please take a look at 302C, which

16 is in front of you, I think. Do you recognize that item?

17 A. Yes, sir.

18 Q. What do you recognize that to be?

19 A. It is a pipe.

20 Q. Does it look familiar to you?

21 A. Yes, sir.

22 Q. What do you remember it as?

23 A. To my knowledge, this can be used as a pipe bomb.

24 DEFENDANT YOUSEF: Objection, your Honor.

25 THE COURT: Yes. The objection should have been

2315 1 to the question.

2 Where did you first see it?

3 THE WITNESS: On that conference table.

4 THE COURT: Was on the 7th of January 1995?

5 THE WITNESS: Yes, sir.

6 THE COURT: All right. Thanks.

7 Q. 302B now, would you please take a look at that.

8 I think it is behind the black case.

9 Do you recognize that?

10 A. These are dry-cell batteries that I saw on that

11 conference table.

12 Q. Sir, you testified that you saw, I believe you

13 said, some calling cards?

14 A. Yes, sir.

15 Q. Can you describe for us what you remember seeing?

16 A. This card had a glossy front and it had the name

17 Dr. Paul Vijay, and the address was S.M. Megamall.

18 Q. You also mentioned, I believe, that you saw some

19 ID's, is that right?

20 A. Yes, sir.

21 Q. What do you recall about those?

22 A. I saw two ID's with two different names. One was

23 Paul Vijay and the other was Adel Sabah.

24 MR. KULCSAR: Can I have the last name read back?

25 (Record read)

2316 1 Q. Do you remember seeing anything else on the table

2 at this time?

3 A. I saw a spiral notebook.

4 Q. Did you have an opportunity to examine that

5 notebook while you were inside the conference room?

6 A. Yes, sir.

7 Q. Do you remember generally what it contained?

8 A. I remember that it contained, it was written in a

9 foreign script or foreign writings, and there were diagrams.

10 Q. Were you able to read what was written there?

11 A. I could not understand nor read the foreign

12 script, but I saw a diagram of a watch that showed lines

13 coming from the watch.

14 Q. After you had an opportunity to look at the items

15 that you have just been testifying about inside the

16 conference room, what did you do?

17 A. I was ordered to make an inventory of the

18 documents on that table, as well as the laptop computer, and

19 so after that I began to study the different papers.

20 Q. About how long would you say you continued to do

21 that?

22 A. What I remember was we even had to have lunch

23 there. After lunch, then we left the room.

24 Q. When you say "we," who are you referring to?

25 A. I mean Colonel Garcia and Colonel Delfin.

2317 1 Q. When you and the two colonels left the conference

2 room, where did you go?

3 A. We headed to our vehicle with the documents and

4 the laptop computer, and also Mr. Murad was turned over to

5 us, and we all rode the vehicle.

6 Q. You just mentioned Mr. Murad. When did you first

7 see an individual that you knew as Mr. Murad?

8 A. I saw him for the first time at that particular

9 instance.

10 Q. I would like you to take a look around the

11 courtroom and tell us whether you see the person that you

12 knew at that time as Mr. Murad.

13 A. Yes, sir.

14 Q. Could you just point him out for us and tell us

15 from the clothing he is wearing so we all know who you are

16 pointing at.

17 THE WITNESS: May I stand, sir?

18 THE COURT: Sure, go ahead.

19 A. He is the gentleman who is beside the lady on

20 that long table.

21 Q. Which side of the lady is he on?

22 A. To her left hand.

23 MR. SNELL: Your Honor, may the record reflect

24 the identification of the defendant Murad?

25 THE COURT: Yes.

2318 1 Q. You mentioned that you left the two colonels and

2 Mr. Murad. Where did you go?

3 A. We went to Camp Crame at the Intelligence Command

4 office.

5 Q. About what time did you say you arrived at that

6 location?

7 A. I am not sure of the exact hour, but it was

8 afternoon by that time.

9 Q. What did you do when you arrived at your office?

10 A. I headed to my own office. I spread out all the

11 documents and started studying the documents, and I set the

12 laptop computer aside for further study.

13 Q. Where did you set the laptop computer?

14 A. I stored it in my steel cabinet so that it will

15 be secure in storage.

16 Q. What did you do after you had a chance to look

17 over the documents?

18 A. I looked for any relations between what is

19 written in the document and my previous records, and we

20 started to check for the names and phone numbers.

21 Q. What did you do next?

22 A. At eveningtime I ordered Richard Macachor to open

23 up the computer and see if we could find any information

24 from the computer.

25 Q. Would you tell us, please, who Richard Macachor

2319 1 is.

2 A. He is one of the people assigned to my branch and

3 he is one of my subordinates in my office.

4 Q. Where were you when -- withdrawn.

5 What happened after you instructed Mr. Macachor

6 to see what he could do with the computer?

7 A. I was by his side when he opened the computer,

8 and when the information came out of the computer we saw

9 laid out flight schedules, particularly of what I know as

10 American aircraft and --

11 MR. KULCSAR: Objection.

12 DEFENDANT YOUSEF: Objection, your Honor.

13 THE COURT: You saw something that you thought

14 might have been airline schedules. Were there any words

15 other than that on the screen?

16 THE WITNESS: I saw the letters UA, the words

17 OBAID and MARKOA. Those are the only words that I can

18 remember offhand at this moment.

19 Q. Do you remember how the word OBAID was spelled?

20 A. Yes, sir.

21 Q. Could you spell it for us.

22 A. O-B-A-I-D.

23 Q. Do you remember seeing any other words on any

24 documents that you saw in the computer at this time?

25 A. We also saw a foreign script or a foreign

2320 1 handwriting that we didn't understand or recognize at that

2 time.

3 MR. KULCSAR: Your Honor, could we ask the court

4 to instruct the witness perhaps to answer "I" instead of

5 "we"?

6 THE COURT: It is pretty obvious that "we didn't

7 understand" is "he didn't understand." All right.

8 Q. Just to be clear, was there anyone else with you

9 when you saw this?

10 A. Yes, sir, Mr. Richard Macachor.

11 Q. About how long would you say you continued to

12 look at material on the computer that evening?

13 A. It was about late into the evening I received

14 instructions that we were going to interview Mr. Murad, and

15 so I would go back and forth from the group that is

16 interviewing Mr. Murad back to my office, where I would

17 continue looking at these documents that I had and

18 organizing notes, and when I returned to -- so that I may

19 verify the notes contained in the documents with Mr. Murad.

20 Q. With respect to the computer, how long were you

21 looking at what was contained on the computer that evening?

22 A. We were actually looking at the computer on and

23 off, because we had to verify every so often with Mr. Murad

24 what the contents of the computer were.

25 Q. Did there come a time when you finished looking

2321 1 at the computer, for that evening?

2 A. When I was done with the computer, I put it back

3 in the steel cabinet, and I also secured the other documents

4 in another cabinet, so that should we leave the premises,

5 then these documents and this computer would be secured and

6 nobody else could touch them.

7 Q. After you put the computer away that night, did

8 anyone else look at it in your presence?

9 A. That particular night it was just Mr. Macachor

10 and myself who had the chance to look at that computer.

11 Q. How about the following day, January 8?

12 A. I am not sure whether it was the following day or

13 actually the 9th of January 1995 that I showed the computer

14 to one of my other colleagues, Mr. Jingo Rivel. Sometimes I

15 have to do that because Mr. Richard Macachor would not be in

16 the office.

17 MR. KULCSAR: Could we have a spelling on the

18 last name, please?

19 THE COURT: Sure.

20 THE WITNESS: R-I-V-E-L.

21 Q. Is that first name Jingo?

22 A. Yes, sir.

23 Q. Would you describe for us, please, under what

24 circumstances Mr. -- I am assuming it is it is Mr. --

25 withdrawn. Is it Mr. Rivel?

2322 1 A. Yes, sir.

2 Q. Would you describe for us, please, the

3 circumstances under which Mr. Rivel would access to the

4 computer.

5 A. Mr. Rivel would study the computer in my

6 presence, and when he is through working with the computer,

7 then I would return it to my steel cabinet.

8 Q. Did there come a time when someone else asked you

9 for the computer?

10 A. Yes, sir.

11 Q. Who asked you for it?

12 A. Yes. The deputy of our command, Colonel Delfin,

13 requested the computer so that he may show it to Mr. Ray

14 Canlas.

15 Q. Do you remember when this was, approximately?

16 A. To my estimation, this happened on the evening of

17 Monday.

18 Q. Would you tell us, please, who Ray Canlas is.

19 A. He is one of our computer consultants.

20 Q. Did you know him as of January 7, 1995?

21 A. I knew him before the 7th of January.

22 Q. About how long was the computer out of your

23 custody then?

24 A. To my knowledge, the computer remained with

25 Mr. Canlas for one day.

2323 1 Q. Did there come a time when you received it back?

2 A. Yes, sir.

3 Q. Who returned it to you?

4 A. This was handed back to me by Colonel Garcia,

5 because Colonel Delfin returned it to him.

6 DEFENDANT YOUSEF: Objection, your Honor.

7 THE COURT: Well, it was handed back. The rest

8 of it forget about, ladies and gentlemen. OK, next.

9 Q. Would you just remind us who Colonel Garcia is.

10 A. He is the director of the Intelligence Command.

11 Q. After you received the computer back from Colonel

12 Garcia, what did you do with it?

13 A. I returned it to my steel cabinet.

14 Q. How long did you retain custody of it?

15 A. I had it in my custody from the 7th of January

16 until the time when I turned it over to the FBI.

17 Q. About when was it that you turned it over to the

18 FBI?

19 A. I am not certain as to the time when I turned

20 over this item to the FBI, but I am certain that it was when

21 the Holy Pope had left.

22 Q. During the time that the computer remained in

23 your custody, did anyone else have a chance to look at it?

24 A. Yes, sir. A colleague of Mr. Frank Pellegrino

25 who was a representative of the U.S. government.

2324 1 Q. Do you know who that person was?

2 A. I can't remember her complete name but it is a

3 woman and her first name is Mary.

4 Q. What were the circumstances surrounding this

5 woman Mary's opportunity to look at the computer?

6 A. I was ordered by Colonel Garcia because we were

7 having cooperative action with the group of Mr. Frank

8 Pellegrino and we were ordered to show this to the FBI

9 contingent.

10 Q. You previously mentioned that you returned from

11 the Presidential Security Group office on January 7 with

12 some documents, is that right?

13 A. Yes, sir.

14 Q. Where did you keep those documents?

15 A. Yes, I put it in a box and put the box in the

16 steel cabinet.

17 Q. Did there come a time when you received any

18 additional items in connection with this particular

19 investigation?

20 A. Yes, sir.

21 Q. What did you receive?

22 A. From Mr. Sonny Phillips, I received a book that

23 was a chemical dictionary and manuals regarding timers

24 and --

25 MR. KULCSAR: Objection.

2325 1 DEFENDANT YOUSEF: Objection, your Honor.

2 THE COURT: No.

3 A. -- and assorted notes regarding chemicals and

4 explosives.

5 Q. What did you do with those items?

6 A. I studied these also because the diagrams and

7 other notes in the documents seemed to pertain to chemicals

8 and explosives.

9 MS. BARRETT: Objection.

10 THE COURT: He studied them and he told us why he

11 studied them. Next.

12 Q. Did there come a time when you turned over some

13 of these materials to the FBI?

14 A. I was ordered by Colonel Garcia to turn these

15 over to the FBI for fingerprinting, and apparently the FBI

16 couldn't lift fingerprints --

17 MS. BARRETT: Objection.

18 THE COURT: Turned them over to the FBI for

19 fingerprinting. All right, next question.

20 Q. About when was it that you turned over these

21 items to the FBI for fingerprint analysis?

22 A. I am not certain again again as to the time, but

23 I am sure it was when the Holy Pope had left the country.

24 Q. Did you ever see any of those items that you

25 turned over to the FBI for fingerprint analysis, again while

2326 1 you were in the Philippines?

2 A. Yes. After a month, the documents were returned

3 to me, but when they were returned, they had been

4 discolored.

5 Q. What did you do with them then when you got them

6 back?

7 A. I kept them again for safekeeping, but a time

8 came when we were ordered again by Colonel Garcia to turn

9 over these documents and the laptop computer.

10 Q. What were you ordered to do with those documents

11 and the laptop?

12 A. We were ordered to turn it over to the group of

13 Mr. Frank Pellegrino.

14 Q. Do you remember about when it was that you were

15 ordered to turn over the evidence to Frank Pellegrino?

16 A. I am not very certain as to the month when we

17 turned this over, but it could be March or April.

18 MR. SNELL: Your Honor, may the witness please be

19 shown what has been marked 3527F for identification?

20 THE COURT: Sure. Here you go.

21 Q. Sir, would you please take a look at that and

22 just read it to yourself and tell us whether that refreshes

23 your recollection as to when it was that you turned over the

24 evidence to Agent Pellegrino?

25 A. I am holding the receipt of the turn-over to the

2327 1 team of Mr. Frank Pellegrino, and it is dated 31st of March

2 1995.

3 Q. Does that refresh your recollection as to when

4 you did the turn-over?

5 A. Yes, sir.

6 MR. SNELL: Your Honor, if we could maybe

7 rearrange the exhibits now, remove the ones that are on the

8 witness stand and supply the witness with others.

9 THE COURT: Sure.

10 MR. SNELL: First, 305 for identification,

11 Government's Exhibit 306, Government's Exhibit 307,

12 Government's Exhibit 308, Government's Exhibit 309, 310.

13 Q. Major Ferro, while the exhibits are being

14 collected, you might want to put on the gloves that are in

15 front of you.

16 MR. SNELL: Your Honor, just so our record is

17 clear, I understand that Government's Exhibit 306 is not at

18 present being shown to the witness.

19 Q. Major Ferro, would you please take a look first

20 at Government's Exhibit 305 for identification, which I

21 believe is -- well, is that what you are holding in your

22 hands?

23 A. Yes, sir.

24 Q. Do you recognize that?

25 A. Yes, sir.

2328 1 Q. What do you recognize it to be?

2 A. These are loose pages from what I believe to be a

3 chemical book or dictionary, but the first time I saw these

4 they were clean of discoloration.

5 Q. Would you take a look now, please, at 307, also

6 marked for identification. Do you recognize that?

7 A. Yes. This is the Hawley's Condensed Chemical

8 Dictionary, 11th edition. I compared this with the

9 documents that I had and I got this from Mr. Sonny Phillips.

10 Q. How does it appear now, relative to the way it

11 looked when you first saw it?

12 A. It is now sustained and discolored, and there are

13 red markings and what I believe to be yellow Post-Its.

14 Q. Those Post-Its and red markings were not there

15 when you saw it initially, is that correct?

16 A. Yes, sir.

17 Q. You can put that aside, and now would you please

18 take a look at Government's Exhibits 308, 309 and 310 for

19 identification. Do you recognize those items?

20 A. Yes, sir.

21 Q. What do you recognize them to be?

22 A. 309 and 310 are receipts of a computer product.

23 Q. When did you first see that?

24 A. These were amongst the documents that I got from

25 the conference room at the PSG.

2329 1 Q. Was that on January 7, 1995?

2 A. Yes, sir.

3 Q. What about Government's Exhibit 308 for

4 identification? Do you recognize that?

5 A. Yes, sir.

6 Q. What do you recognize it to be?

7 A. This is a record of Mr. Abdul Hakim Ali Hashim

8 Murad --

9 MS. BARRETT: Objection.

10 THE COURT: He is telling us what it is but I

11 think he is going a little too far. He is reading from the

12 record at this point. Are you offering it at this point?

13 MR. SNELL: I will be, your Honor, but I will be

14 doing everything together.

15 THE COURT: It is a record. When did you first

16 see it?

17 THE WITNESS: I first saw this in the conference

18 room of the PSG on the 7th of January 1995.

19 Q. Are the three documents that you have just

20 testified about, are Government's Exhibits 308, 309 and 310

21 for identification discolored now in the manner similar to

22 other exhibits that you have been testifying about?

23 A. Yes, sir.

24 MR. SNELL: Your Honor, could the witness now be

25 supplied with Government's Exhibits 311A, B and C for

2330 1 identification?

2 Q. Major Ferro, do you recognize those three

3 exhibits?

4 A. Yes, sir.

5 Q. When did you first see them?

6 A. Yes, sir, also on the 7th of January 1995, at the

7 Presidential Security Group.

8 Q. Are they discolored as well?

9 A. Yes, sir.

10 MR. SNELL: Now, your Honor, if we could move to

11 Government's Exhibits 312, 313A, 313B and 314 for

12 identification.

13 Q. Do you recognize those items?

14 A. Yes, sir.

15 Q. Will you tell us, please, when you first saw

16 them.

17 A. I saw these two on the 7th of January at the PSG

18 headquarters, but then the papers were clear, there was no

19 dirt and no markings, no arrows. It was clean then.

20 MR. SNELL: If we could move now to 315A, B, and

21 C.

22 Q. Do you recognize those?

23 A. Yes, sir.

24 Q. When did you first see those?

25 A. On the 7th of January at the PSG.

2331 1 MR. SNELL: May I have one moment, your Honor?

2 For the record, your Honor, I am informed that

3 Exhibit 315B is already in evidence.

4 Q. Major Ferro, would you take a look at 315B and

5 read to us what it says at the top.

6 A. It says Jinnah Postgraduate Medical Center

7 Karachi, Department of Opthalmology discharge card.

8 Q. Is there a name for a patient being discharged

9 from that particular institution?

10 A. Yes, sir.

11 Q. Would you please read what the name is.

12 A. Adam Khan Balauch, B-A-L-A-U-C-H.

13 MR. SNELL: Now, your Honor, if we could show the

14 witness Exhibits 316A through C and 317A through D for

15 identification.

16 Q. Do you recognize those documents?

17 A. Yes, sir.

18 Q. When did you first see them?

19 A. January 7.

20 A. I saw these two on the 7th of January at the PSG,

21 but then it was not sustained, and they were clear, there

22 were no markings, no stickers. And also, 316-A did not have

23 a plastic, what seems like a plastic laminate, a plastic

24 piece of paper stuck to it. Now it contains a red sticker

25 with an arrow.

2332 1 Q. That was not there when you first saw it, is that

2 right?

3 A. Yes, sir.

4 MR. SNELL: Exhibits 318A through C for

5 identification and 319 for identification.

6 Q. Do you recognize those exhibits?

7 A. Yes, sir.

8 Q. Where did you first see those?

9 A. I saw them at the PSG on the 7th of January 1995.

10 Q. Were those among the documents that you collected

11 at that location at that time?

12 A. Yes, sir.

13 MR. SNELL: Your Honor, could we now show the

14 witness Government's Exhibit 320, which is in evidence.

15 Q. Major Ferro, would you please take a look at

16 Exhibit 320 -- you can take it out of the bag if you like --

17 and tell us whether you recognize it.

18 A. Yes, I recognize it, sir.

19 Q. What do you recognize it to be?

20 A. This is a calling card or a business card of

21 Dr. Paul Vijay, and the address is the S.M. Megamall, but

22 when you verify this address, it turned out to be

23 fictitious. It did not exist.

24 Q. Sir, would you take a look at what is behind that

25 first card at the top of the exhibit -- you can remove the

2333 1 rubber band if you like. Just tell us what is there.

2 A. Do you mean the back of the business card?

3 Q. No. Are there additional business cards that are

4 identical to the one that is on top of the exhibit?

5 A. Yes, sir.

6 Q. Just so our record is clear, the exhibit consists

7 of a number of cards, is that right?

8 A. Yes, sir, there are many.

9 MR. SNELL: Now, your Honor, could we show the

10 witness Government's Exhibits 321A, 321B, 321C, 321D and

11 321E for identification.

12 Q. First, sir, with respect to Government's Exhibit

13 321A and 321B for identification, do you recognize what is

14 there?

15 A. Yes, sir.

16 Q. What do you recognize those to be?

17 A. These are, I believe, enlargements of ID cards of

18 Dr. Paul Vijay and Mr. Adel Sabah, Dr. Adel Sabah.

19 Q. Do you remember seeing such cards previously?

20 A. Yes, sir, but what I saw was different in size

21 from these copies.

22 Q. Where did you see what you are recalling as being

23 different in size, for the first time?

24 A. Here, sir.

25 Q. Where did you first see the items that are

2334 1 portrayed there?

2 A. They were amongst the documents that I saw at the

3 PSG on the 7th of January 1995.

4 Q. Would you take a look now at 321C for

5 identification. Do you recognize that?

6 A. Yes, sir.

7 Q. What do you recognize 321C for identification to

8 be?

9 A. This exhibit contains one picture and

10 accompanying paper is the envelope that seems to contain the

11 pictures, but now the envelope is discolored.

12 Q. Do you remember seeing both of those items for

13 the first time?

14 A. Yes, I saw them at the PSG on January 7.

15 Q. Finally I would like you to turn your attention

16 to 321D and E for identification, which should be in front

17 of you also. Do you recognize what is shown there?

18 A. Yes, sir.

19 Q. What do you recognize 321D and E for

20 identification to be?

21 A. These are ID cards of Dr. Adel Sabah and Dr. Paul

22 Vijay. These pictures depict the same size of the ID cards

23 that I saw at the PSG on the 7th of January, and 321E shows

24 the back side of these ID cards.

25 Q. Just so we are clear, are 321D and E both

2335 1 photographs of the actual items?

2 A. Yes, sir.

3 Q. Is anything else pictured in those photographs?

4 A. There is a spare picture.

5 Q. Is that one that you have already seen and

6 identified?

7 A. Yes, sir.

8 Q. Which exhibit is that, for the record?

9 A. It is 321A, B and C.

10 MR. SNELL: Finally, your Honor, if we could give

11 the witness Exhibit 322 for identification.

12 Q. Do you recognize that?

13 A. Yes, sir.

14 Q. When did you first see that item?

15 A. Also on the 7th of January at the PSG.

16 Q. What is it?

17 A. This is the spiral notebook that I mentioned

18 before that contained a foreign script that I couldn't

19 decipher, and diagrams of watches and other diagrams that I

20 don't recognize.

21 Q. Is Government's Exhibit 322 for identification

22 now in the same condition as it was when you first saw it?

23 A. When I first saw this, the notebook was clean.

24 There were no yellow Post-Its nor blue stickers on the

25 sides, and there were no arrows. And now there are initials

2336 1 on this notebook.

2 Q. Aside from these changes that you have just

3 noted, do you see anything else that is different about the

4 item?

5 A. Now there are page numbers and the discoloration

6 is different.

7 Q. Otherwise, does it appear to be in the same

8 condition as it was when you first saw it?

9 A. Yes, sir.

10 (Continued on next page)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2337 1 MR. SNELL: Your Honor, at this time I would like

2 to offer the exhibits that the witness has been testifying

3 about and identified. Of course I want to show them again

4 to defense counsel. Would this be a good time for a break?

5 THE COURT: Yes. All right, ladies and

6 gentlemen.

7 (Jury excused)

8 (Witness temporarily excused)

9 THE COURT: It is 7 after. Take 10.

10 (Recess)

11 THE COURT: Any objection to that raft of stuff,

12 and if so for what? Hearing none, Paul, bring that stuff up

13 here and mark it into evidence. Apparently there is no

14 objection.

15 MR. SNELL: Your Honor, just for the record, we

16 are not offering the dictionary, which is 307 for

17 identification, for the reasons stated previously.

18 Otherwise, everything that has been identified is being

19 offered.

20 MR. GREENFIELD: Your Honor, with respect to one

21 document at least, 312 for identification, it has what I

22 believe to be a sticker which would be a fingerprint

23 analysis sticker, with my client's name on it. Obviously

24 this witness has nothing to do with that and I don't know

25 that the jury should see this.

2338 1 THE COURT: I am sure they are not going to see

2 that.

3 MR. GREENFIELD: There are a bunch of these

4 stickers but this is the only one that relates to my client.

5 THE COURT: Eventually I assume there will be a

6 fingerprint guy.

7 MR. SNELL: That is true, your Honor.

8 THE COURT: You have gotten the fingerprint --

9 MR. GREENFIELD: I got the report on that well

10 before we began the trial.

11 THE COURT: Anybody else on this? Aren't we all

12 happy, all in together.

13 As a practical matter, we can mark it in now and

14 eventually it will get shown to the jury. Anything else

15 like that?

16 MR. SNELL: There are quite a few items, your

17 Honor, that have the various fingerprints identified by

18 name.

19 THE COURT: You can mark them in, and when the

20 fingerprint expert comes you can show it to him and he will

21 say yes, that's so and so, and then show it to the jury, but

22 not now.

23 MR. SNELL: Right.

24 THE COURT: Let's get them listed in evidence

25 first.

2339 1 MR. KULCSAR: Mr. Yousef just came from the back

2 and he hasn't had an opportunity to look at the items, but

3 with respect to the items that are being offered, I will

4 object because up until now the government has not shown any

5 connection between these items and room 603. The only

6 evidence, as I understand the record, from this witness is

7 that on January 7 he saw, purportedly, all the items being

8 offered in evidence on a desk in somebody's office.

9 THE COURT: No, no, that is not what he testified

10 to. That is a neat way of getting around it but that is not

11 what he testified to. We have had testimony about bringing

12 the items back from 603 and leaving them on the conference

13 table, and so on and so forth. This guy does the inventory

14 from the conference table at the, what is it, the

15 Presidential Special Group or whatever the place is called,

16 and that ties it in quite neatly.

17 MR. KULCSAR: I am sorry. I didn't hear the last

18 your Honor said.

19 THE COURT: That ties it in quite neatly.

20 MR. KULCSAR: My understanding is that the

21 testimony from before was that someone retrieved a bag or

22 whatever of documents, allegedly from room 603. Other than

23 that person allegedly taking a bag of documents from 603, or

24 papers, whichever way they were described as, and taking

25 them to the PSG --

2340 1 THE COURT: And putting them on the conference

2 table. Be complete about it. And putting them on the

3 conference table. This guy comes in and lists the documents

4 and goes through them for the first time, or maybe the

5 second time, I don't know. But that is enough.

6 MR. KULCSAR: I don't know if the reasons for not

7 offering the chemical dictionary are articulated on the

8 record.

9 MR. SNELL: I think so, but just to be quick

10 about it --

11 THE COURT: Nobody requires that you offer it.

12 What is the difference? Nobody requires that you offer

13 something after it is identified. There is no requirement

14 in the law. OK. If they object on the basis that it has

15 been offered since --

16 MR. SNELL: It is going to be offered eventually.

17 There is going to be testimony about the tampering, and at

18 that time I believe the exhibit is going to be formally

19 offered.

20 MR. KULCSAR: Your Honor, may the witness have a

21 moment to look at them?

22 THE COURT: Sure.

23 (Pause)

24 THE COURT: Do you have anything else for this

25 witness?

2341 1 MR. SNELL: Very brief, your Honor. One of the

2 things I would like to do is, now that they are coming into

3 evidence, identify for the record what the various items are

4 that he was not reading because they weren't in evidence yet

5 when he was looking at them. And then if we could, I would

6 like to pass the exhibits that do not have fingerprint

7 identification tags to the jury at this time.

8 THE COURT: Are you going to have the witness do

9 it? They are in evidence.

10 305 is some pages apparently from a multivolume

11 work, apparently on chemistry, is marked at the top "Volume

12 15, phosphorus and the phosphis." There are initials on a

13 number of these pages.

14 308, the document marked at the top "Translated

15 from Arabic." A residence permit becomes invalid if bearer

16 resides out of UAE more than 6MM months. It is a residence,

17 apparently, permit, United Arab Emirates for one Abdul Hakim

18 Ali Hassam Murad.

19 309, KCS Computer Products PTB Ltd., a receipt

20 for cash sale.

21 310 is another such receipt from the same

22 operation for an Epsom Stylus ink jet color printer and for

23 something else, I have no idea what it is.

24 311A appears to be a piece of writing paper with

25 lines, apparently having names and what appear to be phone

2342 1 numbers after it. That is 311A.

2 311B seems to be a similar piece of paper,

3 ripped -- half of a similar piece of paper. This one has

4 also names and apparently phone numbers.

5 311C is a torn piece of paper, apparently from a

6 book, maybe a diary. It has some Arabic writing on the top

7 and then the words subject, day and date. There is script

8 written on it, along with some numbers.

9 312 for identification appears to be two Easy

10 Phone Enterprise receipts, maybe -- I can't make it out much

11 more than that.

12 313, a piece of paper marked Chevalier OA Group.

13 I have no idea what it is intended to be. There are various

14 writings on it, I believe -- I know, this is Chinese. It is

15 not Korean, it is not Japanese, so it has to be Chinese.

16 A guarantee registration card, 313B, from

17 Chevalier OA Services Ltd. for a Toshiba portable computer.

18 And a receipt from the Multi Watch Center

19 Shumart, I can't figure out where it is from. It is made

20 out to a person, Dannis, D-A-N-N-I-S, and then another

21 letter after that, I can't figure out what it is. It is a

22 receipt. I have no idea what -- that is 314.

23 You have 315, hospital outpatient discharge from

24 some hospital, but it is not indicated what hospital. It is

25 addressed to Dr. Idrees Adhi, I-D-R-E-E-S, A-D-H-I,

2343 1 associate professor, and continues on, apparently some type

2 of diagnosis.

3 315C is a reference card from an eye hospital.

4 There is a blue sticker covering what the eye hospital is.

5 The back of it gives an address in Karachi, Pakistan.

6 It is an airline ticket, 316A, for one

7 Mr. Quasim, Q-U-A-S-I-M, Adam, A-D-A-M, Ali, A-L-I.

8 Singapore Airlines.

9 My guess is a cover for their airline tickets,

10 316B, covered with Chinese writing.

11 A through check-in card from Singapore Airlines.

12 That is 316C, a through check-in airlines ticket.

13 317A, apparently an airline ticket from Singapore

14 Airlines in two folders, two glassine folders. One of them

15 has an FBI identification number.

16 317B is a boarding pass with an FBI

17 identification number on it, and apparently fingerprints on

18 it also.

19 317 appears to be an airline ticket cover from

20 someplace, D-N-A-T-A, and then halfway up it is marked

21 "airline services."

22 A strip of paper, perhaps a cash register

23 receipt, 317D. It has Murad's fingerprints on it.

24 An identification card from West London

25 Scientific Industries, made out in the name of Alex Hume is

2344 1 318A. There is no photograph on it.

2 318B is the same type of West London Scientific

3 Industries identification card for one Dr. Richard Smith, no

4 picture on it.

5 318C are apparently blank such cards, I would

6 guess about four or five.

7 319 is International Trading Corp. identification

8 cards, a group of them.

9 321A, an International Trading Corp.

10 identification card made out for Dr. Paul V-I-J-N-Y,

11 chemical specialist, bearing a picture.

12 321 is an International Trading Corp.

13 identification card for Dr. Adel Sabah, S-A-B-A-H, chemical

14 specialist, bearing a picture.

15 321C is what appears to be an envelope and a

16 loose picture such as one would find on a passport.

17 321D is an FBI lab, basically a picture of the

18 identification cards from the International Trading Corp.,

19 two of them, and a loose picture and the envelope, front and

20 back. That is 321D and E.

21 And finally, 322, a green spiral notebook with

22 all kinds of indications of fingerprints inside, leafing

23 through, mostly for Murad, I don't know, maybe all for him.

24 That is all of them?

25 MR. SNELL: That is it, your Honor.

2345 1 THE COURT: All marked received. Bring in the

2 jury, bring in the witness.

3 (Government's Exhibits 305, 307, 308, 309, 310,

4 311A, 311B, 311C, 312, 313A, 313B, 314, 315A, 315C, 316A,

5 316B, 316C, 317A, 317B, 317C, 317C, 318A, 318B, 318C, 319,

6 321A, 321B, 321C, 321D, 321E, and 322 received in evidence)

7 MS. BARRETT: Your Honor, the airline ticket and

8 the spiral notebook, I believe the airline ticket is 317 and

9 I believe the spiral notebook is 322. I have no objection

10 to them being shown to the jury, your Honor, except I would

11 like them to be shown without indication that Mr. Murad's

12 fingerprints are on them.

13 THE COURT: We already took care of that. All

14 the fingerprint stuff stays out for now.

15 MR. SNELL: Your Honor, I have a list of the

16 items that do not have fingerprint identification marks

17 which I can read into the record.

18 THE COURT: Sure.

19 MR. SNELL: It is 308, 309, 310, 311A, 313A and

20 B, 314, 315A and C, 316C, 318A, B and C, 319, 321A, B, C, D

21 and E.

22 (Witness resumed)

23 (Jury present)

24 THE COURT: Do you want to finish direct on this

25 witness now?

2346 1 MR. SNELL: Sure.

2 BY MR. SNELL:

3 Q. Major Ferro, in or about March of 1995, were you

4 presented with a certificate from the United States

5 government commending your performance in this

6 investigation?

7 A. Yes, sir.

8 Q. More recently were you approached to find out

9 whether you would be willing to come to the United States to

10 testify at this trial?

11 A. Yes, sir.

12 Q. Has the United States government paid for your

13 airfare, your accommodations here, and provided you with a

14 meal and witness allowance?

15 A. Yes, sir.

16 Q. Is it also your understanding, sir, that the

17 United States government is paying your salary by the

18 Philippine National Police while you are away from work as a

19 result of your testimony in this trial?

20 A. Yes, sir.

21 (Continued on next page)

22

23

24

25

2347 1 MR. SNELL: I have no further questions, your

2 Honor.

3 THE COURT: There are some documents that you

4 want to show the jury, right?

5 MR. SNELL: Yes, your Honor.

6 THE COURT: Do it now. Did you separate them

7 out, Lillie?

8 MS. GRANT: They are in order, turned by groups.

9 THE COURT: I don't care how you do it.

10 Ladies and gentlemen, while you folks were out of

11 the room, what we were doing was getting through some of

12 these documents, putting them in the record, or a record of

13 them in the record, so that we would know in the capacity

14 exactly what you have seen and what you haven't seen, and so

15 on and so forth. That is what is going on.

16 While you are looking at them, we are going to

17 put on the air conditioning.

18 (Pause)

19 THE COURT: All right, Mr. Yousef.

20 CROSS-EXAMINATION

21 BY DEFENDANT YOUSEF:

22 Q. Now, sir, am I correct that during your testimony

23 a member of the Philippine National Police has been sitting

24 in the courtroom?

25 MR. SNELL: Objection.

2348 1 THE COURT: I don't understand. What is the

2 question? There is another member, other than him?

3 DEFENDANT YOUSEF: Yes, sir.

4 THE COURT: I will permit that. Go ahead. Is

5 there another member of the Philippine National Police in

6 the courtroom during your testimony?

7 A. Yes, sir.

8 Q. Do you know what his rank is, sir?

9 A. Chief inspector, sir.

10 Q. Will you tell us what his name is, sir.

11 A. Major De Los Reyes.

12 Q. Is he your superior in the Philippine National

13 Police?

14 A. No, sir, he is not my chief. He is our liaison.

15 Q. Would you tell us what part of the Philippine

16 National Police he works with.

17 A. I am not, I don't know his specific work but I

18 know he belongs to the directorate for intelligence.

19 Q. Now, sir, before 1991, you were with the

20 Philippine Constabulary, is that correct, sir?

21 A. Yes, sir.

22 Q. Would you tell us, what is the Philippine

23 Constabulary?

24 A. It is a division, a major service of the armed

25 forces of the Philippines.

2349 1 Q. Is that a police group or a military group?

2 A. It has two lines of work. One is the civilian

3 line, which is the police work, and the other is the

4 military line.

5 Q. Which line were you assigned to, sir, when you

6 first joined them?

7 A. I don't understand the question, sir.

8 Q. What were your duties when you first joined the

9 Philippine Constabulary?

10 A. At that time, when I joined the Philippine

11 Constabulary, my primary duty was counterinsurgency, and we

12 were going after the rebel communists.

13 Q. Was that part of the military of the Philippine

14 Constabulary or the civilian part of it?

15 A. It is the military.

16 Q. When did you first join them, sir?

17 A. 1989.

18 Q. In 1991, you joined the Philippine National

19 Police, am I correct, sir?

20 A. Yes, sir.

21 Q. And you became a major in 1995, am I correct,

22 sir?

23 A. Yes, sir.

24 Q. What month in 1995 did you become a major, sir?

25 A. The order was given the latter part of February.

2350 1 Usually an order doesn't become effective until after

2 several months, so one can't assume the next rank until such

3 orders are given.

4 Q. So when were you assigned to the rank of major?

5 A. Like I said, around February. An order doesn't

6 come until after about three months, and you cannot use your

7 rank if the order hasn't been given.

8 Q. Sir, when did you first receive the order to

9 become a major?

10 A. I am not sure when the order was given out.

11 Maybe after three months.

12 Q. How did you become a major? Was there a specific

13 test?

14 A. I was promoted because of some meritorious

15 activity that I completed in the year of 1994.

16 Q. Now, sir, was it your testimony that on January 7

17 of 1995 you received a telephone call from Colonel Garcia?

18 A. Yes, sir.

19 Q. Would you tell us, when was that?

20 A. Could you please repeat the question.

21 Q. Would you tell us when you received the phone

22 call.

23 A. I received that call before 8.

24 Q. Is that 8 in the morning?

25 A. Yes, sir.

2351 1 Q. Where were you when you first received the call?

2 A. I was at home.

3 Q. Where did you go next after you received the

4 call?

5 A. I went straight to the office of Colonel Garcia.

6 Q. Is that in the Presidential Security Group?

7 A. No, sir. Colonel Garcia is with the Intelligence

8 Command, he is not with the PSG.

9 Q. Where are his offices located, sir?

10 A. At Camp Crame.

11 Q. When did you arrive there, sir?

12 A. About 8.

13 Q. 8 in the morning?

14 A. Yes, sir.

15 Q. How long after the call you arrived to his

16 office?

17 MR. SNELL: Objection.

18 THE COURT: No, go ahead, answer.

19 A. I am not sure exactly, but it could have been 30

20 minutes to an hour. But I believe I reported to the office

21 at 8:00.

22 DEFENDANT YOUSEF: Your Honor, would this be the

23 right time to break now?

24 THE COURT: Keep on going. You have 7 to 10

25 minutes.

2352 1 Q. Now, sir, where did you go from there after you

2 arrived to Colonel Garcia's office?

3 A. With Colonel Garcia and Colonel Delfin, we went

4 to the PSG headquarters in Malacanang Park in Manila.

5 Q. When did you arrive there, sir?

6 A. Maybe we arrived there at about 9. I am not sure

7 about the exact time.

8 Q. How long does it take from Colonel Garcia's

9 office to the Presidential Security Group's office?

10 A. It really depends on the state of the traffic.

11 If it is usual rush hour, takes about 30 minutes to an hour.

12 Q. Who did you first see when you arrived there?

13 A. Could you please clarify, are you asking where

14 did I arrive at PSG?

15 Q. When you arrived at PSG, where did you go next?

16 A. I proceeded to, we proceeded to the office of

17 Colonel Ferrer and Colonel Razon. It was a conference room.

18 Q. In the conference room, how many persons did you

19 see there?

20 A. There were several persons there, but I can't

21 tell you, I can't remember the exact number of persons

22 there.

23 Q. Were they all wearing military uniforms?

24 A. What I remember was they were in civilian

25 clothes.

2353 1 Q. Recalling to your testimony when you first

2 entered the room there were documents spread over the table

3 in the conference room, am I correct, sir?

4 A. What do you mean, sir, when you said that the

5 papers were just thrown about or scattered about?

6 Q. Would you describe what you saw in the conference

7 room when you entered.

8 A. I remember there was a conference room and there

9 was a conference table, and the documents were placed on

10 that table along with the laptop computer. The wrist watch

11 was by the side of the briefcase, and there were documents

12 arranged all along the table.

13 Q. Would you tell us the name of the persons who you

14 recognized in that room before you entered when you entered.

15 A. The persons that I recognized and that I know who

16 were not with myself, Colonel Garcia and Colonel Delfin,

17 were Colonels Ferrer and Razon.

18 Q. Would you tell us approximately what is the

19 number of other persons who were in the room? Were there 5

20 or 10?

21 A. Am I allowed to guess at a number?

22 THE COURT: Give us an approximation. That is

23 like a guess.

24 A. Maybe 10 including us.

25 Q. Now, sir, do you know a person named Captain

2354 1 Taas?

2 A. At that time I didn't know him, but by 1996 when

3 we had coordination between his office and ours and he used

4 to come to our office, then I met him.

5 (Continued on next page)

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2355 1 DEFENDANT YOUSEF: Your Honor, is this the right

2 time to break?

3 THE COURT: Yes, it is time now, ladies and

4 gentlemen.

5 Before you go, let me mention one thing to you.

6 For all the time that we have had foreign witnesses in the

7 courtroom, I have suggested that they be accompanied by some

8 official from their government. Who the official is is none

9 of my business. I don't care.

10 Go ahead.

11 (Jury excused)

12 THE COURT: All right, step down.

13 (Witness excused)

14 THE COURT: 2:00, promptly.

15 (Luncheon recess)

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2356 1 A F T E R N O O N S E S S I O N

2 2:00 p.m.

3 (In open court; jury present)

4 ALBERT FERRO, resumed, through the interpreter.

5 THE COURT: Mr. Yousef.

6 CROSS-EXAMINATION(Continued)

7 BY DEFENDANT YOUSEF:

8 Q. Sir, do you recall being asked did you know Capt.

9 Taa?

10 A. Yes, sir.

11 Q. Do you know him, sir?

12 A. Yes, I know him now.

13 Q. Now, sir, do you recall seeing Capt. Taa when you

14 entered the conference room of the Presidential security

15 group on January 7, 1995.

16 A. I didn't know him at that time so I couldn't tell

17 for sure if he was one of the persons in that conference

18 room.

19 Q. Now, sir, during the time you were in the room

20 did anyone photograph or videotape the items which were

21 there?

22 A. I don't remember, sir.

23 Q. Did you or anyone else prepare an inventory of

24 the items which were there at that time?

25 A. As I remember I was the only one who was ordered

2357 1 to make an inventory of these items because we were

2 entrusted with taking the documents and the laptop computer

3 away.

4 Q. Did you prepare the inventory while you were in

5 the conference room on January 7, 1995?

6 A. Yes, sir.

7 Q. Now, sir, after you entered the room --

8 withdrawn.

9 Sir, do you have this inventory with you?

10 A. No, sir.

11 Q. Was it handwritten or was it typed?

12 A. I wrote it with my own hand.

13 Q. And what did you do with that paper?

14 A. As I remember that document could be in my

15 office.

16 Q. Sir, did anyone ask you to bring this inventory

17 with you from the US government while you were in the

18 Philippines?

19 A. I would like a clarification. Do you mean that,

20 are you saying that some of these officials asked me to

21 bring this inventory that I did in my own handwriting to

22 bring it to the United States?

23 Q. Yes, sir.

24 A. No, sir.

25 Q. Now, sir, after you entered the room, conference

2358 1 room am I correct that attempts were made to gain access to

2 the information which was stored in the computer?

3 A. When I was in the conference room I myself did

4 not try to gain access into the computer because I'm not

5 familiar with that computer.

6 Q. Sir, did you see anyone attempting to gain access

7 to the computer while you were there?

8 A. What I remember is I didn't see anyone open up

9 that computer when I was in that room.

10 Q. Did you learn at any time that attempts were made

11 to gain access to the computer while were you there?

12 MR. SNELL: Objection.

13 THE COURT: He said he didn't see it.

14 Q. Now, sir, isn't it a fact that you told the FBI

15 that unsuccessful attempts were made at the time when the

16 computer was in the conference room?

17 MR. SNELL: Objection.

18 THE COURT: No. Did you tell the FBI that?

19 A. No, sir.

20 Q. Sir, do you recall being interviewed by the FBI

21 on March 7, 1995?

22 A. I don't know the exact date when I had the

23 meeting with the FBI in March.

24 DEFENDANT YOUSEF: Your Honor, may I ask the

25 witness to be shown Government Exhibit 3527A for purpose of

2359 1 identification.

2 Sir, I'd like you to read yourself or ask the

3 interpreter to read to you the second paragraph on the first

4 page.

5 THE COURT: All right. Is there a question?

6 Q. Now, sir, did you tell the FBI that at the first

7 time when you saw the computer unsuccessful attempts were

8 made at this time to gain access to the information

9 contained in the computer?

10 A. No, sir.

11 Q. So if the FBI agents prepared a report based on

12 what you told them and that report stated that you told them

13 that when you saw the computer the first time unsuccessful

14 attempts were made --

15 THE COURT: Unless you want to put the thing in,

16 Mr. Yousef, the objection will be sustained.

17 Q. Is it your testimony, sir, that you didn't tell

18 the FBI that unsuccessful attempts were made at that point

19 when you saw the computer the first time?

20 MR. SNELL: Same objection.

21 THE COURT: Asked and answered.

22 Q. Now, sir, when did you leave the Presidential

23 security office back to your office?

24 A. My estimate is that we left the PSG's offices

25 after lunch.

2360 1 Q. Would you tell us approximately what time that

2 was?

3 A. My guess is 1 o'clock or 2 o'clock.

4 Q. Who else was left behind in the conference room

5 of the Presidential security group office?

6 A. The people I remember who stayed behind were Col.

7 Razon and Col. Ferrer.

8 Q. Now, was it your testimony that you took the

9 items with you to your office?

10 A. What we, what I took with me to my office from

11 the PSG headquarters were the documents and the laptop

12 computer.

13 Q. How did you take these items? What did you put

14 them in?

15 A. What I remember is that we put documents in the

16 box and the computer was in its own case, the black case.

17 Q. Now, sir, during the period of time you were in

18 the conference room did anyone from the Philippine National

19 Police or the Presidential security group remove any items

20 that had been in the room after you first arrived?

21 A. I didn't notice.

22 Q. Well, did you say that you prepared an inventory

23 for the items which you saw in the conference room?

24 A. I made an inventory of the documents and the

25 laptop computer. As for the other items like the briefcase

2361 1 and other things I didn't make a list of those.

2 Q. Now, sir, what time did you get to your office?

3 A. My guess is between 2 to 3 in the afternoon.

4 Q. Would you tell us, please where your office is

5 located?

6 A. It's inside Camp Crame.

7 Q. What did you do with the computer once you got to

8 your office, sir?

9 A. I entered the computer into my own steel locker

10 and I decided to just study the documents that I had on hand

11 before doing any of that.

12 Q. Did there come a time at all when you switched

13 the computer on by yourself?

14 A. No, sir.

15 Q. Was it your testimony that at sometime you called

16 Richard Macachor?

17 A. Yes, sir.

18 Q. And what was the reason for calling him, sir?

19 A. Because he is well versed in the computer I

20 thought of asking him.

21 Q. Was it your understanding that he was a computer

22 expert?

23 A. To my understanding his classification in our

24 office is in the field of computers so I thought it would be

25 best to call him.

2362 1 Q. Now, sir, after Macachor arrived did you remove

2 the computer from the file cabinet and switch it on?

3 A. I took, I removed the computer from the steel

4 cabinet and it was Mr. Macachor who turned on the computer

5 and not I.

6 Q. Did you remove it before he arrived or only after

7 he arrived?

8 A. When he arrived.

9 Q. Now, sir, was it your testimony that at sometime

10 a person named Jingo Rivel had custody of the computer?

11 A. I myself did not turn on the computer but my

12 personnel of Jingo Rivel is also well versed in computers

13 and so when Richard Macachor is not around, so I rely on

14 Jingo Rivel to do that.

15 Q. Now, sir, how long did Richard Macachor spend

16 with the computer?

17 A. We actually worked with the computer on and off

18 during that time and so maybe that was 7 o'clock that

19 evening to early Sunday morning, and we would go back and

20 forth working with the computer, and checking with Mr. Murad

21 and compare the information that Mr. Murad was giving us to

22 what was in the computer.

23 MS. BARRETT: Objection.

24 THE COURT: No, I'll permit that to stand. Go

25 ahead.

2363 1 Q. Now, sir, when was it that you asked Jingo Rivel

2 to assist you with the computer?

3 A. As to the exact time when I asked him to assist

4 me I don't know that, but I know I asked him probably that

5 Sunday evening or Monday.

6 Q. Did he come to your office or, did he come and

7 take the computer with him or he worked in front of you?

8 A. Mr. Rivel worked on the computer in front of me

9 in my office, and I would not permit the computer be taken

10 out of the office unless that was ordered by my boss, Col.

11 Garcia.

12 Q. How long did he stay in your office working with

13 the computer, sir?

14 A. Do you mean Mr. Rivel or Mr. Macachor?

15 Q. Mr. Rivel, sir.

16 A. Like I said previously, he would work on the

17 computer on and off. When the time came when he couldn't

18 get any more information from the computer then I would

19 return the computer to my cabinet.

20 Q. Sir, how many hours did he spend with the

21 computer working with the computer?

22 A. I'm not sure, but if I would guess it would be

23 maybe 30 minutes.

24 Q. Now, who else after Mr. Jingo Rivel, who else

25 worked with the computer?

2364 1 A. What period are you pertaining to, the 7th up to

2 when?

3 Q. Well, between Mr. Richard Macachor and Mr. Jingo

4 Rivel was there anyone else who worked with the computer in

5 front of you?

6 A. No, sir.

7 Q. After Mr. Jingo Rivel, did anyone else gain

8 access to the computer?

9 A. What particular date, sir, so that I may perhaps

10 recall what date?

11 Q. When did Mr. Jingo Rivel finish working with the

12 computer when it was in your office?

13 A. I can't tell you the exact time but like I said

14 earlier, he would work with the computer on and off, and he

15 would gain access into the computer, but after a while when

16 he couldn't get any more information than I would hide, I

17 would keep the computer again in my steel locker. Perhaps

18 that would be a period of 30 minutes.

19 Q. What was the date when Mr. Jingo Rivel was

20 working with the computer in your office?

21 A. Sir, the period of 7 to 9 on Monday that was the

22 period when he had access to the computer.

23 Q. Now, sir, on Monday after Mr. Jingo Rivel

24 finished working with the computer, was there anyone else

25 who attempted to gain access to the information of the

2365 1 computer?

2 A. What time, until what time are you pertaining to?

3 Q. At any time after Mr. Rivel finished attempting

4 to gain access to the computer, did anyone else attempt to

5 gain access to the information stored in the computer?

6 A. From morning to the afternoon no one else did.

7 Q. After the afternoon did anyone else gain access

8 to the contents of the computer?

9 A. Do you mean the night, sir?

10 Q. Any time.

11 A. By night time I remember that Col. Delfin asked

12 for the computer so that he could show it to Ray Canlas.

13 Q. Did you turn the computer over to Col. Delfin at

14 that time?

15 A. Yes, at night.

16 Q. Now, sir, when Richard Macachor and Jingo Rivel

17 attempted to begin access to the contents of the computer

18 did any one of them copy the contents of the hard disc of

19 the computer?

20 A. Based on what I remember I don't think they

21 copied anything from the computer.

22 Q. Now, sir, who had the custody of the computer

23 after you turned it over?

24 A. Could you please clarify whom do you mean? To

25 whom did I turn over the computer, Col. Delfin or someone

2366 1 else?

2 Q. Who was the person to your knowledge who had the

3 custody of the computer after you turned it over?

4 A. After I lent the computer to Col. Delfin --

5 THE INTERPRETER: Rephrase.

6 I lent the computer to Col. Delfin and after one

7 day the computer was returned to Col. Garcia.

8 Q. After you returned the computer to Col. Delfin

9 did you ever see the computer again after that?

10 A. Yes. I saw it again after it was turned over by

11 Col. Delfin to Col. Garcia, and then I was in charge of

12 taking care of the computer.

13 Q. And when was that, sir?

14 A. When the computer was returned to me I retrieved

15 that computer from the office to Col. Garcia.

16 Q. When was that, sir?

17 A. I remember it was Wednesday by then.

18 Q. So how many days do you recall the computer

19 stayed in the custody of Col. Delfin?

20 A. Perhaps one day.

21 Q. Sir, what did you do next to the computer after

22 you got it back from Col. Garcia?

23 A. I returned it to my steel locker for storage and

24 to secure it.

25 Q. What happened next to the computer?

2367 1 A. When I returned to my office we were busy with

2 following up on the documents, so I just kept the computer

3 in my locker.

4 Q. How long did you keep the computer in your

5 locker, sir.

6 THE INTERPRETER: Could the interpreter hear that

7 again, please?

8 Q. For how long did you keep the computer in your

9 locker?

10 A. There was some time during that Sunday again when

11 we would, we would gain access into the computer to compare

12 the information. There was some time during that week again

13 when we would gain access into the computer to compare

14 information.

15 Q. And when was that, sir?

16 A. I couldn't remember, sir.

17 Q. Who was the person who gained access again to the

18 computer?

19 A. Just Richard Macachor and Mr. Jingo Rivel.

20 Q. And who was the person who was comparing the

21 information on the computer?

22 A. I myself would compare the information from the

23 computer with information from the documents that I

24 collected from the PSG conference room. Especially I was

25 interested in information regarding chemicals that was

2368 1 displayed on the screen of the computer.

2 Q. Sir, how many files did you find in the computer

3 which related to chemical items?

4 A. I remember one. If there were others I don't

5 remember.

6 Q. Now, sir, was there a printout made of

7 information alleged to be obtained by Richard Macachor when

8 he used the computer for the first time in your office?

9 A. No, sir.

10 Q. Did Mr. Jingo print out the information of the

11 computer?

12 A. I couldn't assert, I don't know if he made a

13 computer printout.

14 Q. Now, sir, was the computer attached to a printer

15 when it was in your office?

16 A. Are you pertaining to the laptop computer?

17 Q. Yes, sir.

18 A. No, we weren't able to connect it to a printer.

19 Q. Did anyone print out any of the contents of the

20 computer when it when it was in your office?

21 A. What I remember that there was one piece of

22 information that we needed printout and it was Richard

23 Macachor who printed it out.

24 Q. Which one was that, sir?

25 A. It was that piece of document called Bojinka

2369 1 which contained the flight schedules of American aircraft.

2 Q. Now, sir, when did Mr. Macachor print out the

3 contents of the computer?

4 A. I'm not sure when he made that printout, but it

5 may be in January.

6 Q. When in January, sir, if you recall?

7 A. I'm not sure. Maybe the 17th or the 18th of

8 January.

9 Q. Was this done in your office, sir, the printout?

10 A. Yes, sir.

11 Q. Now, sir, is it your testimony that the computer

12 was hooked up to a printer and the printing process was done

13 in your office?

14 A. What I know is that we could not connect the

15 laptop computer to a printer in my office because they were

16 incompatible.

17 Q. So sir, did the printout process occur in your

18 office?

19 A. What I remember, yes.

20 DEFENDANT YOUSEF: Your Honor, I'd like the

21 witness to be shown Government Exhibit 301 and 301A.

22 THE COURT: Sure.

23 (Government's Exhibit 301 and 301A handed to

24 witness)

25 Q. Now, sir, the items in front of you, Government

2370 1 Exhibits 301 and 301A, are these the only two items which

2 you turned over to Col. Delfin?

3 A. If I remember right these are the only items that

4 I turned over to Col. Delfin.

5 Q. Now, sir, were you there when Richard Macachor

6 switched on the computer? Did you see the screen when it

7 was first switched on?

8 A. Yes, sir.

9 Q. What did you first see on the screen when it was

10 first switched on?

11 A. Because I'm not well versed in the computer I

12 can't tell you exactly what I saw on the screen when it was

13 first switched on, but I know that the light turned on, and

14 Richard said that he will try to gain access into the

15 computer.

16 Q. Would you describe, sir, if you saw a drawing or

17 any writing when it was first switched on before any key was

18 touched or pressed on the keyboard?

19 A. What I remembered was before he turned it on

20 there was no light.

21 Q. After he turned it on and before he pressed any

22 key or the mouse would you describe for us what you saw on

23 this screen?

24 A. I can only remember the light and I can't, I

25 couldn't tell you what was written or designed on the

2371 1 screen.

2 Q. Can you tell us, was it a drawing or a writing?

3 A. I wouldn't remember.

4 Q. Now, sir, do you know a police inspector by the

5 name of Joe Cruz?

6 A. Inspector Cruz, sir?

7 Q. Yes, sir.

8 A. Yes, sir, I know someone, I remember someone.

9 Q. Did you know him on January 7th of 1995?

10 THE INTERPRETER: Could the interpreter hear that

11 again?

12 Q. Did you know him on January 7th of 1995?

13 A. On the 7th of January I didn't know him yet. I

14 just got to know him in this in the following months when we

15 started coordinating our work.

16 Q. Now, sir, do you recall if you saw him at any

17 time in the conference room of the Presidential security

18 group on January 7, 1995, after you entered?

19 A. Because I didn't know him at that time I couldn't

20 tell you if I saw him or he was, or if he was in that room

21 but it's possible.

22 Q. Now, sir, was it your testimony that Major

23 Phillipps of the intelligence unit sent certain items to

24 you?

25 A. He turned over documents and some books.

2372 1 Q. When was that, sir?

2 A. To my knowledge this happened after the search

3 warrant was returned, and books and documents had been

4 turned over to him.

5 Q. When did he turn over these items to you?

6 A. Actually these items were not turned over to me.

7 Rather I borrowed these from him so that I could relate the

8 documents that I had regarding chemicals and so I could

9 study, for example, the manual regarding bomb making and the

10 manuals about timers.

11 Q. Sir, my question was when did this happen?

12 A. I don't remember, sir.

13 Q. And where did this happen, sir?

14 A. I borrowed these items from him the week after

15 the 7th or the 8th, but I don't remember exactly when.

16 Q. Now, sir, where did this happen? Was it in your

17 office or did you go to his office?

18 A. At his office.

19 Q. Did you call him and ask him to bring these

20 items?

21 A. No, sir. I learned that he had other documents

22 in his possession and I wanted to find if there was any

23 relation between the documents that I had and those that he

24 had.

25 Q. Sir, did you call him and ask him to bring these

2373 1 items to you or was he the one who called you?

2 A. What I remember was I called, I may have called

3 him if I can borrow the documents that he had so that I

4 could compare them to documents that I took from the PSG

5 conference room on the 7th of January.

6 Q. After you borrowed these items from him did you

7 turn them over back to him?

8 A. What I remember was that eventually I got custody

9 of these items like the book and the manual for bomb making

10 and the manuals for timers.

11 Q. Sir, when you said you borrowed these items from

12 Major Phillipps did you turn them over back to him?

13 A. I was not able to return these items to him

14 because subsequently the FBI borrowed, asked to borrow these

15 items to take to the United States, so that they may lift

16 fingerprints from the dictionary and other manuals.

17 Q. Sir, was it your testimony that you went to his

18 office in order to pick up these items?

19 A. Yes, sir.

20 Q. And where is that, sir, where are his offices

21 located?

22 A. At the intelligence command.

23 Q. Is that in Camp Crame?

24 A. Yes, sir.

25 Q. Now, sir, when did you first learn that Major

2374 1 Phillipps had these items?

2 A. I was informed that other documents were with

3 him.

4 Q. How did you know that, sir?

5 A. I'm not sure, but perhaps the person who informed

6 me was Col. Garcia.

7 DEFENDANT YOUSEF: I have no further questions,

8 your Honor.

9 THE COURT: Ms. Barrett.

10 CROSS-EXAMINATION

11 BY MS. BARRETT:

12 Q. What time did you arrive at the Malacanang Park

13 at the PSG offices?

14 A. I arrived there at approximately 9 in the

15 morning.

16 Q. And the pipe that you previously identified was

17 it there at that time?

18 THE INTERPRETER: Could the interpreter hear that

19 again, please?

20 Q. The pipe that you previously identified, was it

21 there at that time?

22 A. I did see a pipe like that pipe at the room, at

23 the conference room of the PSG.

24 Q. Where in the conference room did you see it?

25 A. It was on that table at the conference room.

2375 1 Q. And the watch was also on that table?

2 A. Yes, ma'am.

3 Q. Did you see an attache case?

4 A. Yes, ma'am.

5 Q. Do you know Major Angeles?

6 A. Yes, ma'am.

7 Q. Do you know Lt. Mike Cruz?

8 A. I got to know him after this incident.

9 Q. When you were there that morning did he, was he

10 present at that time?

11 A. It's possible that he may have been in that room

12 but because I did not know him yet at that time I couldn't

13 tell you for sure.

14 Q. When you saw the attache case was there any items

15 in there?

16 A. I saw the pipe and a piece of paper but I don't

17 know what that paper is.

18 Q. The pipe was in the attache case?

19 A. What happened was they opened the attache case

20 and removed the pipe from inside the attache case. That's

21 when I saw the pipe.

22 Q. Do you recall who opened the attache case?

23 A. What I can be certain of and assure you of is

24 that the person was from the EOD.

25 Q. And how long after that date did you meet Lt.

2376 1 Cruz?

2 A. We had different duties at that time but a time

3 came when we had one particular job to do that covered the

4 western police district and I coordinated this effort. This

5 was possibly two to three months later.

6 Q. Do you recall seeing items being placed back in

7 the attache case?

8 A. Ma'am, I was not able to, I can't assert if any

9 items were being put back into the attache case because my

10 line was not connected with explosives, so I couldn't tell

11 you for sure.

12 Q. How many people were from intelligence command

13 group that went to Malacanang Park?

14 A. We were three, ma'am, Col. Garcia, Col. Delfin

15 and myself.

16 Q. And you met with officers of the PSG?

17 A. The PSG officials that I knew and that we spoke

18 with were Col. Razon and Col. Ferrer.

19 Q. Now, during that, there was a meeting between the

20 PSG officers and the officers of the intelligence command

21 group?

22 A. Yes, ma'am.

23 Q. Now, was the attache case in the room when you

24 arrived?

25 A. Yes, ma'am.

2377 1 Q. And how long were you there before it was opened?

2 A. When we first got there they showed it to us

3 because it was the PSG who was briefing us as to these items

4 that they discovered.

5 Q. Do you recall whether a video camera was used

6 during that meeting?

7 A. I couldn't tell for sure, but it could, I believe

8 it's important that they take a video footage of such items

9 because they're important.

10 MR. KULCSAR: Objection.

11 DEFENDANT YOUSEF: Objection.

12 THE COURT: Yes. You didn't see one, is that

13 what you're telling us?

14 THE WITNESS: I didn't notice anyone videotaping.

15 THE COURT: All right. That, ladies and

16 gentlemen, is the answer. Forget the other one. Next

17 question.

18 Q. Now, as to the exhibits that you first saw at the

19 PSG offices on January 7th were they already on the table

20 when you got to the conference room?

21 A. Yes, ma'am.

22 Q. And did you ever see any of those exhibits prior

23 to you seeing them on that table?

24 A. No, I hadn't. I saw those items for the first

25 time that day.

2378 1 Q. And you didn't see who put those items on that

2 table?

3 A. When we got to, when we got there all these

4 items, the documents, the laptop computer, the briefcase

5 were all laid out on top of the table.

6 Q. You didn't see who put them there, did you?

7 A. No, ma'am.

8 Q. How long after you were at the PSG offices did

9 you see Mr. Murad?

10 A. When we first got there I didn't see him. I saw

11 him as we were leaving.

12 Q. Where did you see him first?

13 A. As we were leaving.

14 Q. Where was Mr. Murad when you first saw him?

15 A. We were entering our vehicle when I saw him.

16 Q. Who was he with?

17 A. I believe that it was officials from the PSG who

18 were escorting Mr. Murad so that he could be turned over to

19 us.

20 Q. Now, how long were you at the office before you

21 decided to leave?

22 A. What I remember was that after we had lunch then

23 we started to leave and we saw Mr. Murad.

24 Q. How long was the meeting?

25 A. We got there perhaps about 9 in the morning and

2379 1 we stayed there until after, after lunch around 12 noon, and

2 we left the premises by the afternoon.

3 Q. Is it fair to say that if you arrived at 9 and

4 left at about 12 that you were there for around three hours?

5 A. I couldn't tell you exactly how much time we

6 stayed there because. I'm not well versed in that. I'm not

7 sure what time we left, 12:30 or 1 o'clock.

8 Q. Well, you said after lunch. Did you take a lunch

9 break during the meeting?

10 A. What I remember was we had lunch in that

11 conference room of the PSG.

12 Q. Did the meeting continue between the intelligence

13 command group and the PSG officers while you were having

14 lunch?

15 A. Yes, ma'am.

16 Q. And throughout the entire time you were there

17 were you always in the meeting place in the PSG offices?

18 A. Yes, ma'am.

19 Q. And during the entire time when were you in the

20 meeting room, in the room that you were meeting you never

21 saw Mr. Murad?

22 A. Yes, ma'am.

23 Q. Yes, ma'am, you did not see him, or yes, ma'am

24 you saw him?

25 A. Yes, ma'am, that I did not see him while we were

2380 1 having the meeting inside the PSG conference room.

2 Q. Now, at what point did you take -- withdrawn.

3 When you left the PSG offices you took possession

4 of documents that you said that were on the table?

5 A. Yes. Col. Garcia gave me instructions to gather

6 the documents and the laptop computer. We were given the

7 duty to study the documents and the laptop computer.

8 Q. And then you said you left to go back, you left

9 the PSG offices?

10 A. We left the room and as we were going towards our

11 vehicle Mr. Murad was turned over to us.

12 Q. Now, when you say as you're going towards your

13 vehicle, is it fair to say that you already left the

14 building before you saw Mr. Murad?

15 A. The PSG compound is one compound. It's a fenced

16 restricted area. So the building where the conference room

17 was in the compound, the vehicle was inside that compound.

18 When we left the office the vehicle was still inside the

19 compound. So when Mr. Murad was turned over to us we were

20 still inside.

21 Q. Inside the building or inside the compound?

22 A. Inside the compound.

23 Q. But that was outside the building?

24 A. It's outside the office.

25 Q. Now, let's see if I can clarify this. The

2381 1 compound is a fenced-in area you said. Is that correct?

2 A. Fenced in.

3 Q. Does the compound consist of a building and an

4 outside area?

5 A. For us when we say, when you say building we mean

6 a structure of several stories high. The office is a

7 bungalow type of structure, so I couldn't say that it was a

8 building. It was just an office.

9 Q. How many structures are on the compound?

10 A. There were several structures within that

11 compound.

12 Q. And the office that you were in was in one of

13 those structures?

14 A. No, ma'am.

15 Q. The office that you were having the meeting with

16 the PSG officers, is that office in one of those structures

17 on the compound?

18 A. Yes, ma'am.

19 Q. And it was after you left that structure you got

20 outside that you saw Mr. Murad?

21 A. Yes, ma'am, but that structure where we had the

22 meeting right outside the structure where we had the meeting

23 was our vehicle, was where our vehicle was parked, and so

24 when we left the conference room heading towards our vehicle

25 we saw him right there. We don't know, I don't know where

2382 1 he came from.

2 Q. Now, the structure in which you had the meeting

3 is it one story or more than one story?

4 A. What I remember was it was just one floor.

5 Q. So when you left the building or the structure to

6 go to your parking area, did you exit through a door; is

7 that correct?

8 A. Yes, ma'am.

9 Q. Now, while you were in the meeting did you notice

10 an adjacent room that was near the conference room?

11 A. I didn't notice any adjacent room at that time.

12 My attention was focused on studying the documents so I had

13 no chance to leave the conference room and check out any

14 adjacent rooms.

15 Q. You didn't see Mr. Murad coming out of this

16 structure that you exited from; is that correct?

17 A. When we were heading towards the vehicle I saw

18 him approaching us, but I could not know notice or I could

19 not take note where he was coming from because I had, in one

20 hand I had a box filled with documents and I had the laptop

21 computer on the other hand. So I didn't know where he came

22 from, whether he exited from a building.

23 Q. You said that as you're going to your car -- how

24 far from the structure that you exited was your car parked?

25 A. It's very near the exit, ma'am.

2383 1 Q. And you said Mr. Murad was coming towards you?

2 A. The situation was we were heading towards the

3 vehicle from one side and we saw him approaching from the

4 other side.

5 Q. So is it fair to say that he was coming from

6 another direction towards you?

7 A. Yes, you may.

8 Q. And who was with Mr. Murad at that time?

9 A. I don't remember this person but I understood him

10 to be a personnel of PSG.

11 Q. How many persons was with Mr. Murad?

12 A. I remember only one person.

13 Q. Was Mr. Murad blindfolded?

14 A. Yes, ma'am.

15 Q. Was he handcuffed?

16 A. Yes, ma'am.

17 Q. Were his feet shackled?

18 A. No, ma'am.

19 Q. Who turned over Mr. Murad to you?

20 A. Actually Mr. Murad was not turned over to me.

21 Rather he was turned over to my boss, Col. Garcia.

22 Q. When you exited the building where was Col.

23 Garcia?

24 A. He was with me.

25 Q. And what did Col. Garcia do after he -- did there

2384 1 come a time when he took custody of Mr. Murad?

2 A. We were only three at the time and the driver was

3 being Col. Delfin and I was carrying these documents myself,

4 so the laptop computer myself, so we just put him in the

5 vehicle with us.

6 Q. Could you repeat the last one?

7 A. And so we just put him in the vehicle with us.

8 THE COURT: Okay. We'll find out what happened

9 next after. We're taking our break now.

10 (Continued on next page)

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2385 1 (Jury, witness, interpreter not present)

2 THE COURT: Are you in pain, Roy? Do you have a

3 back ache or something? I saw you standing up before.

4 MR. KULCSAR: Yes.

5 THE COURT: That's all right. If you feel better

6 standing up, stand up.

7 MR. KULCSAR: I took some medication. Thanks,

8 your Honor.

9 (Recess)

10 (Continued on next page)

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2386 1 (In open court; jury present)

2 ALBERT FERRO, resumed, through the interpreter.

3 CROSS-EXAMINATION(Continued)

4 BY MS. BARRETT:

5 Q. Major Ferro, when you left the PSG offices you

6 said Mr. Murad went with you and Col. Garcia?

7 A. Yes, ma'am.

8 Q. How many people were in the car?

9 A. We were only three so we proceeded to Camp Crame

10 right away.

11 Q. And how far is PSG office from Camp Crame?

12 A. I don't know the exact distance of Camp Crame

13 from Malacanang, but if there is no heavy traffic it could

14 be thirty minutes and in heavy traffic it could be more than

15 an hour. Malacanang is located in a very busy section of

16 metro Manilla.

17 Q. Do you remember how long it took you that day to

18 get to Camp Crame?

19 A. I estimate 40 to 45 minutes before we got to Camp

20 Crame.

21 Q. And was Mr. Murad blindfolded during the entire

22 ride?

23 A. Yes, ma'am.

24 Q. And was he also handcuffed during the ride?

25 THE INTERPRETER: Could you repeat, please?

2387 1 MS. BARRETT: Handcuffed.

2 A. Yes, ma'am.

3 Q. Now, what happened when you got to Camp Crame?

4 Where was Mr. Murad placed?

5 A. What I know is that he was taken to a detention

6 room that's provided with a cot and electric fan. That's

7 where he stayed.

8 Q. Now, what time was it that you got to Camp Crame?

9 A. It was afternoon by then.

10 Q. And who took him to the detention room?

11 A. It was Col. Garcia asked someone to take care of

12 Mr. Murad and to secure him.

13 Q. Do you know that someone?

14 A. What I remember was the person who had such a

15 duty Major Sonny Phillipps.

16 Q. Was it Major Phillipps that Col. Garcia

17 instructed to take Mr. Murad to the detention room?

18 A. I did see Major Phillipps actually giving -- I

19 didn't see Col. Garcia actually giving Major Phillipps this

20 order but I found out he was given the responsibility to

21 take care of the security.

22 Q. When you got to Camp Crame with Mr. Murad and

23 Col. Garcia where did you go?

24 A. When we got to Camp Crame I went to my office and

25 secured the laptop computer in my steel locker, and I

2388 1 started studying the documents.

2 Q. When you left to go to your office where was Mr.

3 Murad?

4 A. I saw him heading down and along with a person

5 who was given the responsibility of bringing him to the

6 detention room, they proceeded.

7 Q. Do you know the name of the person that was

8 taking him to the detention room?

9 A. No, ma'am.

10 Q. Where was Col. Garcia at that time?

11 A. To my knowledge he followed to the detention

12 room.

13 Q. Now, how far is your office from the detention

14 room?

15 A. The detention room is about two to three minutes

16 walk from my office.

17 Q. Can you tell us in distance how far it is?

18 A. May I guess or can I approximate the distance?

19 Q. You may approximate.

20 A. Perhaps two hundred meters, ma'am.

21 Q. The building that your office is in, how many

22 stories does that building have?

23 A. Our office is a two-story building.

24 Q. What floor is your office on?

25 A. Our office is on the first floor.

2389 1 Q. How many offices are on the first floor in that

2 building?

3 A. There are many offices.

4 Q. The detention -- withdrawn.

5 What floor is the detention room on?

6 A. It's in another building but within the

7 intelligence compound.

8 Q. How far is this building where the detention

9 center was, how far is it from your building where your

10 office is located?

11 A. The way our compound is structured is that there

12 is a parking lot in the middle, and the different buildings

13 are equidistant from this parking lot so I would say

14 possibly two hundred meters -- 150 to two hundred meters.

15 Q. In this building where the detention room was

16 located what other rooms -- withdrawn.

17 Are there any offices in that building?

18 A. That particular building where the detention room

19 is there was a fire on the upper floor of that building

20 where the detention room is found.

21 Q. How many floors does that building have?

22 A. I think there was one.

23 Q. And you said there was a fire in that building?

24 A. I'm not sure exactly when, but possibly in 1994

25 the ceiling had been burned in the fire.

2390 1 Q. So the building, there is no ceiling in the

2 building?

3 A. The ceiling of that structure was only partially

4 burned. The ceiling didn't fall, didn't totally crash in

5 the fire.

6 Q. How many detention rooms are in that building?

7 A. What I know is there's one detention room there

8 that was being used.

9 Q. Other than a detention room is that building

10 being used at all?

11 A. From time to time.

12 Q. What is it used for?

13 A. Occasionally when we have more supplies than can

14 be stored in the regular supply room these are kept in this

15 building. As for regular office use of that building, it's

16 not of that use.

17 Q. So the only use other than storage is a detention

18 room that is used there; is that correct?

19 A. We have a regular prison cell but since this was

20 a special case our boss ordered us that he should be put in

21 a room that would be more comfortable rather than in a

22 regular prison cell.

23 Q. After the fire was there any effort to

24 reconstruct the building?

25 A. I don't know the details regarding restructuring

2391 1 this building, but based on budget constraints renovation

2 has been partial and slow because the funding has been slow

3 in coming.

4 Q. You said there was a cot and a fan in that room?

5 A. Yes, ma'am.

6 Q. And there was no -- how large is the room?

7 A. I would estimate that it's possibly as large or

8 slightly smaller than the area where the jury sits or maybe

9 half.

10 Q. Was Mr. Murad kept there the entire time that he

11 was in the custody of the intelligence command group?

12 THE INTERPRETER: Can the interpreter hear that

13 again, please.

14 MS. BARRETT: Could you please read it back.

15 (Record read)

16 A. There are times particularly on Friday when it's

17 his day to pay respect to his religion when he's moved from

18 that room to another room where he could pray, and when

19 interviews are conducted. Then he's taken to another room

20 where there is a table and there is seating.

21 Q. Now, you said you went to your office. Do you

22 recall what time you went to your office?

23 A. When we arrived at the camp, Mr. Murad was taken

24 to the detention room. As he was being taken to the

25 detention room I went to my office at the same time so I

2392 1 could secure the laptop computer and the documents.

2 Q. Now, did you yourself try to access the computer

3 prior to contacting Mr. Macachor?

4 A. No, ma'am, because I was worried of perhaps

5 erasing any information there until the person who was well

6 versed in it came.

7 Q. How long after arriving at your office did

8 Mr. Macachor arrive there?

9 A. I had Mr. Macachor be on standby. It was

10 Saturday that time and we didn't have the regular personnel

11 around and I even had to ask someone to search for him. And

12 I focused my attention first on studying the documents.

13 Q. How long after you got to your office did

14 Mr. Macachor get to your office after you found him?

15 A. By late afternoon he arrived and I had him stand

16 by and I told him just to sit tight and wait and let me

17 study the documents before we go into the computer.

18 Q. Where was Mr. Macachor when you were studying the

19 documents?

20 A. He stayed in the vicinity of our branch office in

21 the vicinity of the special investigation group.

22 Q. How long did you study those documents?

23 A. I studied them for sometime, for a long time. I

24 had to compare the information from these notes with notes

25 that I had, notes and dates that I have from other previous

2393 1 day that we have in the office. I had to go over the papers

2 one by one so as not to let any information slip by.

3 Q. Do you recall how long it took you to do that?

4 A. Perhaps by late afternoon to the evening.

5 Q. Would that be more than two hours?

6 A. Yes, ma'am.

7 Q. Would it be more than three hours?

8 A. I spent a long time in studying the documents

9 because I would go back and forth. I couldn't do this in

10 one sitting. Sometimes I would order one of my subordinates

11 to check the information on a business card. I'd ask him to

12 go check the office written on the business card, and to

13 verify whether this information in the document is correct.

14 Q. Were you alone in your office while you worked on

15 these documents?

16 A. I poured over the documents mostly by myself

17 until people started trickling in, people that were being

18 recalled to my office. It was the weekend so generally

19 people don't report until sometime in the late afternoon

20 because at that time a red alert had been issued because

21 there was a threat to the life of the Pope.

22 MS. BARRETT: Your Honor, may I ask that that

23 answer be stricken, the last part anyway.

24 THE COURT: The last part.

25 Q. You became a major in 1995?

2394 1 A. Yes, ma'am.

2 Q. Would that be on or about January 1 of 1995?

3 A. The activity of an order, of the order for my

4 promotion I believe was around late February of 1995.

5 Before an order is effective that order must be released and

6 published a few months before that, and sometimes the

7 publication of the order is even delayed, so you can't claim

8 your rank as a major until this order is published and

9 circulated.

10 Q. On January 7th what was your position, 1995?

11 A. What do you mean, ma'am, my rank or my position?

12 Q. Were you a major on January 7, 1995?

13 A. No, ma'am, I was a captain at that time.

14 Q. And prior to becoming a police officer was it

15 your testimony that you were in the armed forces?

16 A. Yes, ma'am.

17 Q. What was the highest rank you reached in the

18 army?

19 A. The branch of service that I participated in was

20 not in the army, but rather in the Philippine constabulary

21 and I was a second lieutenant.

22 Q. Officer, were you in any unit in which you were

23 asked to defuse any type of explosives?

24 A. Is this connected with the military?

25 Q. I withdraw that question. Yes. While were you

2395 1 in the armed forces were you ever in any unit in which you

2 were asked to defuse any type of explosive?

3 A. No, ma'am.

4 Q. As a police officer with the PNP were you ever

5 assigned to the explosive ordnance division?

6 A. No, ma'am.

7 Q. Now, did there come a time when Mr. Macachor

8 started working on the computer?

9 A. Yes, there came a time when he started the

10 computer.

11 Q. And you were present while he worked on the

12 computer?

13 A. During all the time that he was gaining access to

14 the computer I was inside.

15 Q. Inside your office?

16 A. Yes, ma'am.

17 Q. And the computer was in your office; is that

18 correct?

19 A. Yes, ma'am.

20 Q. And Mr. Macachor worked on the computer while he

21 was in your office?

22 A. Yes, ma'am.

23 Q. Was there anyone other than you and Mr. Macachor

24 in the office?

25 A. My office is segregated from, sort of separated

2396 1 from the rest of the area, so we were only two there.

2 Q. Now, how long altogether -- withdrawn.

3 What time did Mr. Macachor start working on the

4 computer on that day?

5 A. I'm not sure of the time, but it was sometime in

6 the afternoon, and as I said we would work at the computer

7 on and off, and then at other times we would have to follow

8 leads that the documents revealed and we would have to

9 follow up on these leads, and when time would come when we

10 couldn't get any more information, when he couldn't get any

11 more information from the computer, then I would return the

12 computer back into the steel locker.

13 Q. What time did he stop working on the computer

14 after he started working on it?

15 A. As I said he worked on it on and off and he

16 started at night until early morning on Sunday.

17 Q. Early morning, the approximate time he stopped

18 working on the computer?

19 A. Possibly 2, 3 to 4 in the morning.

20 Q. Did you watch him as he worked on the computer?

21 A. When the computer is on then I'd be watching it,

22 but when we're done working with the computer we turn it

23 off, and I would secure it again in the steel locker. At

24 that time he was my only, my only colleague, and he was the

25 only person I had to help me follow up the other leads.

2397 1 Q. You didn't make any printouts at that time; is

2 that correct?

3 A. Yes, ma'am.

4 Q. Mr. Macachor, did he take notes?

5 A. I don't remember if he was making notes.

6 Q. Were you taking notes?

7 A. The notes that I took were of the flight

8 schedules. This was the document entitled Bojinka, so that

9 I could ask Mr. Murad what this was.

10 Q. Now, was it you or Mr. Macachor that conferred

11 with Mr. Murad?

12 A. Myself.

13 Q. During the time that Mr. Murad was held --

14 withdrawn.

15 When did Mr. Rivel start working the computer?

16 A. I believe that on the 7th and the 8th of January

17 we didn't have Mr. Rivel working with us. He possibly came

18 the afternoon of Sunday or even Monday because that was

19 really the weekend.

20 Q. Do you remember if it was evening or morning that

21 he started working on the computer?

22 A. It could have been morning because employees of

23 intelligence command go to work about 8 o'clock in the

24 morning on Mondays.

25 Q. You finished working on the computer with

2398 1 Mr. Macachor early Sunday morning; is that correct?

2 THE INTERPRETER: Could the interpreter hear that

3 again, please.

4 (Record read)

5 A. Yes, ma'am.

6 Q. Did you go home that day?

7 A. I went home for a very, very short while and I

8 had to return because there was a red alert and everybody

9 was on standby because there was a threat to the presence of

10 the Holy Pope.

11 MS. BARRETT: Your Honor, may I have the last

12 part of that answer be stricken?

13 THE COURT: Yes, the last part will be stricken.

14 Q. Now, when you returned back to your office that

15 Sunday do you recall if that was the day that Mr. Rivel

16 worked on the computer?

17 A. I'm not sure about that Sunday, but I'm sure that

18 Monday he was there.

19 Q. Who contacted Mr. Rivel to work on the computer?

20 A. Whether you inform a government employee

21 specifically or not he or she has to show up to work on

22 Monday because that's the start of the work week, so I'm

23 sure he was there on Monday.

24 Q. Did you instruct Mr. Rivel to work on the

25 computer that Monday?

2399 1 A. Yes, ma'am.

2 Q. And did he work on the computer in your office?

3 A. Yes, ma'am.

4 Q. Were you there while he worked on the computer?

5 A. Yes, ma'am.

6 Q. Did you leave him at any time while he worked on

7 the computer?

8 A. I don't remember such a time when I left him

9 while he was working with the computer.

10 THE COURT: Okay, ladies and gentlemen, we'll

11 pick up with this tomorrow. See you at 9:30.

12 (Continued on next page)

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2400 1 (Jury; witness, interpreter, not present)

2 MR. KULCSAR: Your Honor, before the witness

3 leaves could I impose on the Court to specifically request

4 the witness please not discuss the testimony with any other

5 person that may be here from the Philippines? Obviously we

6 know the government won't talk to him, but we don't know who

7 is around him.

8 THE COURT: Suppose he has a private attorney

9 here? We can't do that.

10 I thought there was some talk before that this

11 fellow there was going to be an attempt to introduce some

12 tape through this fellow? How it gets in is thoroughly

13 beyond me, nor has there been even any conversation about

14 whether he was present or anything else. All I heard up to

15 this point he's sitting in his office doing police duty in

16 the sense that he is running down leads. I have no I idea

17 of how you intend to get it in, but it will be interesting.

18 We'll see tomorrow morning.

19 How much longer do you have, assuming you get it

20 in?

21 MS. BARRETT: Your Honor, I don't know how much

22 time because we had decided earlier that we're not going to

23 play the tape, but --

24 THE COURT: You are not going to play it, okay.

25 MS. BARRETT: Now, Mr. Murad is telling me that

2401 1 he wants to do that. So I don't know.

2 THE COURT: Mr. Murad wants to play the tape?

3 Well, I don't know how you're going to get it in. Think

4 about that.

5 MS. BARRETT: Your Honor, we had already

6 discussed it with the government. If we were going to

7 introduce the tape there would be a stipulation.

8 THE COURT: There would be a stipulation. All

9 right, fine. But what are you going to ask this witness

10 about? He's up in his office.

11 So think about it overnight. Tomorrow morning

12 9:30.

13 (Adjourned to 9:30 a.m., Thursday, July 18, 1996)

14 (Continued on next page)

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2402 1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 ALBERT I.D. FERRO.......2308 2347

4 GOVERNMENT EXHIBITS

5 Exhibit No. Marked Received

6 305, 307, 308, 309,

7 310, 311A, 311B,

8 311C, 312, 313A,

9 313B, 314, 315A, 315C,

10 316A, 316B, 316C,

11 317A, 317B, 317C, 317C, 2345

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2403

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 18, 1996 9:30 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, MIRA RIVERA

24

25

2404

1

2 (In open court; jury not present)

3 THE COURT: Sit down, please. I received from

4 somebody, at least my law clerk did, a copy of Murad

5 interrogation January 7, 1995, 760-T. I don't know whether

6 my clerk was teasing me or what, he said there is something

7 in there about going to Paris. Is that true?

8 MR. KULCSAR: Yes.

9 MR. SNELL: Page 20, your Honor.

10 THE COURT: Okay. We all know that last night an

11 explosion occurred in flight 800 TWA to Paris. Now, whether

12 it was an explosion caused by the airplane itself or by some

13 object that shouldn't have been on an airplane, I have no

14 idea, and you don't either. None of us do.

15 I just assumed that the jury would hear about it,

16 and arrived only to find out that my secretary hadn't heard

17 about it, and she's under no -- this might shock you all,

18 particularly from the media, but it shouldn't shock you. I

19 love telling the story about the New York Times having a

20 front page for seven days, a story they headed up, the War

21 On 138th Street. It started on a Sunday, went everyday

22 front page. On Monday I was supposed to pick the jury in

23 the case which was featured on the front page of the Times.

24 Well, I put off jury selection for four months.

25 I then went through the jury and I asked the

2405

1 jury. Did you see an article about this case? Did you see

2 an article where the headline was War on 138th Street?

3 Amazingly, the jury said no. One woman, I said to her,

4 you're sure that you didn't see War on 138th Street, to

5 which she replied, young man, -- first big brownie point

6 with me. I liked the woman immediately. She said, young

7 man, do you know what was in the Times review of the first

8 night at the New York City Ballet this year? And I looked

9 at her and I said: I have absolutely no clue. And she

10 said, that just proves that you read what you're interested

11 in and I read what I'm interested in.

12 Anyway, the jury did not get the newspapers

13 today. They got the Home Section I think it is, and the

14 Money and Finance Section, and, surprisingly, they didn't

15 ask for, and this really shocks me, nobody asked for the

16 Daily News or the New York Post or Newsday. They haven't

17 asked for that. So there you go.

18 I fully intend at this point, unless I hear

19 objections from you guys, to assume that they saw or heard

20 something about it, and I am going to talk to them about

21 their oath, and tell them that whatever happened there has

22 absolutely nothing to do with this case. Unless somebody

23 can come up with something better still I think that's the

24 best I'm going to do.

25 MR. KULCSAR: I'm sorry, your Honor. I was

2406

1 advised that on at least two stations Mr. Yousef was

2 mentioned in the context of reporting of the incident

3 specifically, and the charge against him, and plans both

4 American Airlines -- I did not hear them myself.

5 THE COURT: I know nothing about it.

6 MR. KULCSAR: I figured you didn't, so that's why

7 I bring it to the Court's attention. Obviously, I think

8 we're all, speaking for myself, we agreed with your Honor of

9 course with respect to the horrible incident in Saudi,

10 Arabia. I don't know given the specific nature of the

11 charges in this case and the apparent circumstances that are

12 speculated on explosion of Flight 800 and, again, the

13 unfortunate confluence of circumstances wherein this tape

14 would be played today, whether some other course might be

15 considered, I don't know. As a matter of fact, until your

16 Honor pointed out the fact that the transcript does reflect

17 references to Paris I had forgotten --

18 THE COURT: I didn't know about it. It's a good

19 thing somebody told me.

20 MR. KULCSAR: So I don't know. I think that a

21 general instruction was certainly sufficient for my purposes

22 the last time. I don't know if that's really sufficient

23 with respect to the situation here. It may be one reason

24 these people didn't ask for newspapers is because of their

25 willingness to be forthright and comply by your Honor's

2407

1 ruling and anticipating that any newspaper account would

2 have something in it.

3 THE COURT: I still think I'm going to have to

4 remind them of their oath and tell them that they can't

5 decide anything that has to do in the newspapers and so on,

6 so forth.

7 MS. BARRETT: Your Honor, the transcript I

8 believe on page 7 also makes reference to TWA.

9 THE COURT: TWA. Was that listed in that list of

10 flights? I didn't think so.

11 MR. SNELL: Your Honor, just so we're clear on

12 that reference of the transcript Mr. Murad is talking about

13 his own travel history, and he took TWA apparently at that

14 time. I don't think that's in the same league as what we're

15 talking about.

16 MS. BARRETT: I didn't hear this myself, your

17 Honor, but I was told by someone that there was speculation,

18 I believe on CNN, some terrorists or somebody like that was

19 talking about nitrogylcerine, and the tapes we want to play

20 today, your Honor --

21 THE COURT: That's the kind of speculation you're

22 going to end up with.

23 MR. GREENFIELD: Your Honor, may I?

24 THE COURT: Sure.

25 MR. GREENFIELD: With respect to what the jury

2408

1 might or might not know, or what is different about this

2 than the other cases, is that regular broadcasting went off

3 the air when this happened. Whatever station anybody was

4 watching last night they know what happened. They know a

5 plane exploded. There is no question that there was

6 speculation early on.

7 What I find shocking -- and this is an aside -- I

8 was watching the Yankee game at 9:30 until it became 9-2,

9 and said, I'm not going to watch this any more. And I

10 didn't know a thing about it until I switched stations.

11 There was not even a news breakthrough during the ball game.

12 But every station on the TV was carrying it.

13 THE COURT: Except for the Yankee game.

14 MR. GREENFIELD: Except for the Yankee game.

15 THE COURT: It's ever since that Heidi situation.

16 MR. GREENFIELD: They are afraid of that, that's

17 right. I think we're the only two who know that.

18 MR. SNELL: I remember that one, too, your Honor.

19 THE COURT: You know the one.

20 MR. GREENFIELD: But the point is, in my mind

21 it's not an issue of speculation. They know it. There is

22 no question they know it. I think, if I might make a

23 suggestion to the Court, that your Honor individually

24 interview each juror and ascertain what they heard and will

25 it affect where we go.

2409

1 THE COURT: I don't think the time to do it is

2 right now. I might do it next week, if you want it done

3 next week, but I didn't think the time to do it is now.

4 MR. KULCSAR: Your Honor, I'm sorry, I don't

5 believe I made myself clear in terms of my concern. My

6 concern, your Honor, is that right now whatever general

7 information they have, or whatever certainly can be dealt

8 with by the Court, but having done that, we will be faced

9 shortly within the next hour or so with a statement

10 attributed to one of the defendants specifically dealing

11 with the very issue of explosions on airliners, and I think

12 that's a very different circumstance from what we have in

13 the Saudi Arabian situation. And I don't know whether your

14 Honor might consider not going forth past a certain point

15 today, and beginning Monday or the next court day with that

16 part of the evidence. I don't know how your Honor can

17 anticipate --

18 THE COURT: Look, am I correct that this thing

19 was chopped up already?

20 MR. SNELL: That's true, your Honor.

21 THE COURT: You've listened to the tape. Is the

22 tape clear on Paris?

23 MS. BARRETT: I believe, your Honor.

24 THE COURT: You believe it is?

25 MS. BARRETT: Yes, I believe that even though the

2410

1 government has tried to say the reference to TWA the context

2 was in this transcript --

3 THE COURT: TWA doesn't bother me, but the Paris

4 bothers me, since this was a flight to Paris.

5 MS. BARRETT: It is clear, your Honor, and

6 that's --

7 THE COURT: Is there some way of taking that out?

8 We're going to bleep someplace else?

9 MR. SNELL: Your Honor, as far as the tape is

10 concerned I don't know whether we could take out the word

11 "Paris." I just don't know enough about this stuff. The

12 only thing I can suggest is to delete a portion of the

13 conversation entirely.

14 THE COURT: That's fine by me, if you guys can

15 agree on what to delete.

16 MR. SNELL: That will mean that there will be a

17 larger gap in the tape than otherwise exists.

18 THE COURT: So what?

19 MR. SNELL: Otherwise it's going to take a long

20 time to redub the tape.

21 THE COURT: If you take out the part about Paris.

22 MR. SNELL: I think it's on 21.

23 THE COURT: 20, 21.

24 MR. GREENFIELD: Your Honor, at this point I will

25 object to the playing of this tape. I can't let this thing

2411

1 in today.

2 THE COURT: Okay. He objects. Nobody gets to

3 play it. All right. Now, we're still --

4 MS. BARRETT: Your Honor, I apologize.

5 THE COURT: Pardon me?

6 MS. BARRETT: What was the ruling on

7 Mr. Greenfield's objection?

8 THE COURT: If he objects to it you're not going

9 to get to play. From what I heard yesterday this guy cannot

10 identify it in a million years.

11 MS. BARRETT: Your Honor, my cross-examination

12 yesterday was based on the fact that we weren't sure at that

13 point that we were going to be playing the tape, but I

14 believe that there are some questions that I can ask

15 Mr. Ferro today to establish that he knew that Mr. Murad was

16 taped, that he was present when taping occurred, and also,

17 it was previously agreed between the government and myself

18 that pursuant to a stipulation that these tapes are

19 authentic.

20 THE COURT: The fact that they are authentic is

21 fine. I didn't hear this man say a word about being at any

22 interrogation whatsoever. All I heard was he was two

23 hundred meters away across a parking lot, and that he was

24 working at various and sundry things. I didn't hear a

25 bloody word come out about him being at any interrogation

2412

1 whatsoever.

2 MS. BARRETT: Your Honor, no questions were asked

3 to elicit those answers.

4 THE COURT: You guys should know. Was he at the

5 interrogation or no?

6 MR. SNELL: Yes, your Honor. In fact I think he

7 testified that he was in and out. If that line is developed

8 further, I think that it's going to be established that he

9 was in for some period of time. I'm not exactly sure how

10 long.

11 THE COURT: Fine.

12 MS. BARRETT: Your Honor, Mr. Greenfield's client

13 is not even mentioned in the tape.

14 THE COURT: I can't hear you.

15 MS. BARRETT: Mr. Greenfield's client is not even

16 mentioned in this tape.

17 THE COURT: I know, but that's not the problem.

18 MR. GREENFIELD: Your Honor, if I might, the

19 Philippines, the alleged plot on the Pope is mentioned.

20 MS. BARRETT: That has been going on throughout

21 the trial, your Honor, and even Mr. Greenfield --

22 MR. GREENFIELD: Well, I've been objecting

23 throughout the trial. You want to play the tape, play the

24 tape. I'll leave the courtroom, your Honor.

25 THE COURT: You won't leave the courtroom.

2413

1 MR. GREENFIELD: You know what I mean. I'm sorry

2 for being curt.

3 THE COURT: You're not going to do it.

4 MR. GREENFIELD: I'll move for severance if they

5 think it's important to their case.

6 MS. BARRETT: Your Honor, this will in fact

7 impact on Mr. Murad's defense, and this was something that

8 was mentioned in my opening statement.

9 THE COURT: Yes, I know. This is the witness

10 that you think you're going to get it in through. Now, can

11 you get Paris out of the tape?

12 MR. SNELL: We can just not play that portion of

13 the tape, your Honor, fast forward through it. I think that

14 can be done fairly easily.

15 THE COURT: But I thought you guys had these

16 things that you were going to be handing out. What are you

17 going to do with it?

18 MR. SNELL: I think we would go back to our

19 office and redo it on the word processor. It's on the word

20 processor and we can take that section out.

21 THE COURT: How long will it take?

22 MR. SNELL: I think just to revise the transcript

23 we could get that done in 30 minutes, assuming the people

24 that are necessary to do it are over there. To redo the

25 entire tape --

2414

1 THE COURT: I don't care how you get it out of

2 the tape, but get it out of the transcript for sure.

3 MR. SNELL: That part is much easier than

4 eliminating it from the tape.

5 MS. BARRETT: Your Honor, maybe we can just take

6 out the word Paris.

7 MR. SNELL: In the transcript?

8 THE COURT: That's what I asked you before

9 whether the Paris is clear on the tape and you said, oh, yes

10 it is.

11 MS. BARRETT: I thought it was, your Honor, but

12 the jury is sitting over there and I'm not so sure. I

13 listened to it several times, your Honor, and over and over

14 with the aid of transcripts, so --

15 MR. SNELL: Your Honor, I think it is clear and

16 unfortunately it's mentioned several times. I couldn't

17 stand here and say that it's a chance that everyone can take

18 that it wouldn't be heard by some juror.

19 THE COURT: Play it for me. Do you have it? Can

20 you get to that point?

21 MR. SNELL: I think it's on the defense table

22 now, your Honor.

23 MR. KULCSAR: Your Honor, may we have one moment?

24 THE COURT: Sure.

25 (Pause)

2415

1 THE COURT: What do you guys want to do about

2 Paris?

3 MR. SNELL: Your Honor, from a technical

4 standpoint I'm told that it's not a huge job just to

5 eliminate the word Paris from those portions of the tape, in

6 which case those portions take on a very different kind of a

7 slant. If we are given an hour we can come up with a new

8 tape that will have redacted the word Paris each time it

9 appears, and a new transcript of course, so that there is no

10 reference to Paris.

11 MS. BARRETT: Your Honor, we have no objection to

12 the tape remaining the same way, and the transcript

13 remaining the same way, your Honor, based on the context of

14 how the word Paris was used in this conversation, and I've

15 conferred with my co-counsel, and other than Mr. Greenfield

16 who objects specifically to the portion about the Pope, the

17 section about the Pope, you know, I don't think anybody has

18 any objections to this part being played.

19 THE COURT: Is everyone agreed then that we leave

20 Paris in?

21 MR. SNELL: Yes.

22 THE COURT: Okay, fine. All right. Now, first

23 things first. We're going to need the jury first.

24 MR. GREENFIELD: I have to talk to my client

25 about that, your Honor, before I say I can agree. I really

2416

1 have to talk to my client. I must speak to my client about

2 that before I can say we agree.

3 THE COURT: Oh, sure.

4 MR. KULCSAR: Your Honor, may I step out for one

5 minute?

6 THE COURT: Yes, sure.

7 (Pause)

8 (Continued on next page)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2417

1 (Jury present)

2 THE COURT: Good morning, ladies and gentlemen.

3 Last night over near the Moriches Inlet out in Long Island

4 an airplane blew up, TWA Flight 800.

5 Now, there is going to be, and there has been I'm

6 sure -- I don't know if you've encountered it yet -- all

7 kinds of speculation about what happened. I have no clue

8 what happened, nor do you, nor do any of the people who have

9 been speculating up to this point. All we know is that

10 there was an explosion and the airplane went down. It's a

11 tragedy, there is no two ways about it, but that had nothing

12 to do with this case.

13 When you first came here you took an oath to

14 decide the case based upon the evidence presented in this

15 courtroom. Clearly what you find and hear about outside of

16 the courtroom has nothing whatsoever to do with your

17 decision, nor can it play any part in what your decision may

18 be as to the facts of this case.

19 I am going to assume that each and everyone of

20 you will live up to your oath, unless you give me some

21 reason to believe otherwise. I'm asking you, however,

22 particularly to avoid reading anything or listening to

23 anything to do with TWA Flight 800. Now, it may be that

24 you're going to encounter something about it. I recognize

25 that. I just want you to do it to the extent that you can

2418

1 avoid all contact with that.

2 Please don't discuss it with anybody else.

3 Please don't discuss what you hear here with anyone else.

4 You've already promised me that you wouldn't. Please, you

5 may be in the process of forming an opinion now. Don't.

6 All right.

7 The one thing I can tell you for sure is that

8 under our system we depend upon oaths. When a witness takes

9 the stand he is requested to put his right hand in the air

10 and he takes an oath. When lawyers come to the bar they

11 have to take an oath. When I got this job I had to take an

12 oath. And you took an oath, also, when you became jurors.

13 Your oath is that what you would try it on the law and on

14 the evidence. Now, the evidence, as I told you at the very

15 outset, is only the stuff that you heard here, not something

16 that occurs outside, not some speculation you might hear

17 from somebody else, nothing like that.

18 Please, the evidence can only come in in this

19 courtroom. Don't weigh your mind down with stuff that

20 happens outside. Don't weigh your mind down with wild

21 speculation, which at times the media just goes into a

22 frenzy just to go into a frenzy to make sure that everybody

23 is listening to it. Please don't let yourself get involved

24 in a situation like that.

25 You've taken an oath to do a job, and that's the

2419

1 oath I expect you to follow. If it is going to be too

2 difficult for you, for God's sakes, tell me. I don't think

3 it will be. And the one thing that you should recognize is

4 that the one benefit that we all have in life as we go

5 through life is to be able to say we did a good job. And

6 for you folks to do a good job you have to obey your oath.

7 You have to follow through with that.

8 Please, stay away from any of the media that's

9 coming out with this wild speculation. Stay away from all

10 stories about it. That's the easiest thing. It happened.

11 I feel terribly sorry for those families, all the people

12 that were killed, and for all of their loved ones, and I'm

13 sure you do, too. Okay.

14 Now, we have a job to do and we have to

15 concentrate on that. So, all right.

16 We have a little bit more evidence to take from

17 this witness. Then we may be playing a tape for you, okay?

18 But we have perceived a minor glitch in the tape. So after

19 we take the little evidence I'm going to ask you to step

20 out, and hopefully the technical experts will be up to par

21 and get it in here in very short time, but we have a small

22 problem with it, which we've got to iron out.

23 So first things first. Paul, you want to get the

24 witness in.

25 ALBERT I. D. FERRO, resumed, through the interpreter.

2420

1 THE COURT: Ms. Barrett, you have to put this man

2 in position to be able to hear what's going on. I assume

3 you're going to do that now.

4 MS. BARRETT: Yes, your Honor.

5 CROSS-EXAMINATION(Continued)

6 BY MS. BARRETT:

7 Q Major Ferro, you indicated that Mr. Murad was

8 taken to Camp Crame on January 7th; is that correct?

9 THE INTERPRETER: Could the interpreter hear that

10 again, please?

11 Q You indicated that Mr. Murad was taken to Camp

12 Crame on January 7th in the afternoon of January 7th.

13 THE INTERPRETER: The 7th?

14 Q January 7, 1994?

15 A Yes, ma'am.

16 Q And you also indicated that he was taken to a

17 detention room in another building across from the building

18 in which your office was located.

19 A My office is not really right across from, nor in

20 front of the detention center. Rather, it's a ways off and

21 my office is even inside a building.

22 Q Now, sir, you also testified that during the time

23 that you were in your office that afternoon and evening that

24 you went back and forth -- withdrawn.

25 You also testified that you were given

2421

1 instructions on that day that Mr. Murad was to be

2 interviewed; is that correct?

3 A The instruction given to me, ma'am, was that I

4 would be one of the people who would be with the team, with

5 a group that would be interviewing Mr. Murad.

6 Q Who gave you those instructions?

7 A The person that gave me the instruction, ma'am,

8 was Col. Garcia.

9 Q And you stated that you were one of the people

10 that was instructed by Col. Garcia to, along with other

11 people, to interview Mr. Murad?

12 A Yes, ma'am.

13 Q And did you participate in that interrogation of

14 Mr. Murad?

15 A Yes, ma'am.

16 Q Now, during the time that Mr. Murad was being

17 interrogated was there a tape recording of that

18 interrogation?

19 A At that time I didn't notice if there was any

20 recording equipment for this purpose. My presence there was

21 marked by constantly going in and out of the interview room

22 and I didn't stay long in that room. There were a lot of

23 other people doing the interview.

24 Q Do you know whether or not he was being taped?

25 A That particular hour I was not conscious that a

2422

1 recording was happening, but later on I found out that there

2 was recording.

3 Q Now, you stated that along with you other people

4 participated in the interrogation of Mr. Murad. Do you know

5 those people?

6 A I cannot really recall who all those people were

7 conducting the interview. As I said earlier, I was going in

8 and out of the room and we were, we were very concerned at

9 that time for the security of the Holy Pope.

10 Q How many people were involved in the

11 interrogation of Mr. Murad?

12 A I'm not exactly sure of the right number, the

13 exact number, ma'am. I would say perhaps eight or nine or

14 even more. And they were all together in one room. There

15 was another area where some of the people doing the

16 interview would be standing by waiting, and, for example,

17 when one, when certain people are finished with the

18 questions then they would be replaced by some of those

19 people standing by.

20 Q Now, when you were going in and out of the

21 interrogation room is it fair to say that you spoke to Mr.

22 Murad on a number of occasions?

23 A Yes, ma'am.

24 Q And am I correct in saying that you came to

25 recognize his voice?

2423

1 A Would you, could you please repeat that, ma'am?

2 Q Well, during the time that Mr. Murad was in

3 captivity with the intelligence command group in the

4 Philippines did you speak to him on a number of occasions?

5 A That particular time when I saw him I didn't know

6 him very well, but I was able to speak with him on a number

7 of occasions.

8 Q And because you spoke to him on a number of

9 occasions, is it fair to say that you came to recognize his

10 voice?

11 A I believe that for myself I don't really remember

12 voices that real well, but I can remember his voice at that

13 time.

14 Q And you said you became aware that there were

15 tape recordings of conversations with Mr. Murad. Did you

16 ever listen to any tapes in connection with any

17 interrogation of Mr. Murad?

18 A The 7th of January, 1995, I myself did not do the

19 recording, and I didn't see, I was not aware of a recording

20 that was happening at that time. But subsequently the rest

21 of the interviews when I would be conducting the interview

22 then I know that there was a recording happening because I

23 was doing it.

24 Q Did you listen to any recordings after they were

25 taped?

2424

1 A I did hear recordings made, but when we were,

2 when our particular office was entrusted with the subsequent

3 interviews then after an interview is done we would, I would

4 take care of reading the summary itself, and from the

5 summary then I would figure out what I would be asking Mr.

6 Murad the next time I interviewed him.

7 Q My question to you, sir, of any tapes that were

8 made of Mr. Murad, any tapes whatsoever, did you ever have

9 occasion to listen to any of those tapes?

10 A Yes, ma'am.

11 Q And when you listened to those tapes did you

12 recognize Mr. Murad's voice?

13 A Yes, ma'am.

14 Q And did you recognize the voice of any of your

15 colleagues?

16 A If I am in that room at a particular time when

17 the interview was being conducted I may recognize some

18 voices, but if I'm not in that room then I would not be so

19 sure if I could recognize a particular voice.

20 MS. BARRETT: Your Honor, I believe that at this

21 time it would be appropriate to have your Honor read into

22 the record a stipulation between the government and myself.

23 THE COURT: Do you have the stipulation? I want

24 to see it first. I assume on the basis of the stipulation

25 you are going to ask to play a tape, am I correct?

2425

1 MS. BARRETT: Yes, your Honor, but I have a few

2 more questions prior to that.

3 THE COURT: You have what?

4 MS. BARRETT: I have a few more questions before

5 playing the tape.

6 THE COURT: Well, ask the questions. Go ahead.

7 Q Now, you testified yesterday that you were

8 viewing the computer and that you would go back and forth to

9 the interrogation room; is that correct?

10 A You're right, ma'am, but in addition to that, at

11 times I would be given instructions to my personnel. For

12 example, I would instruct Richard to check certain facts,

13 and there were also times when I myself went out to follow a

14 lead to check an address that was found in one of the

15 documents.

16 Q Now, where was Mr. Murad being interrogated?

17 THE INTERPRETER: Could the interpreter hear that

18 again, please?

19 Q Where was Mr. Murad interrogated?

20 A When he would be questioned Mr. Murad would be

21 taken from the detention group to another room with a table.

22 He would be sitting on a chair. In front of his chair would

23 be two other chairs.

24 Q Now, you stated that the detention room was in a

25 burned-out building. Was that the building in which the

2426

1 interrogation occurred?

2 A Yes, ma'am.

3 Q So the eight or nine people that interrogated Mr.

4 Murad was taken to that building -- withdrawn -- went to

5 that building where the detention room is located?

6 A The eight or nine people that would conduct

7 interviews would not go to the detention room. They would

8 just go to the room where the interview is being held.

9 Q You testified that other than the detention room

10 there are only storage facilities at the building where the

11 detention room is located. Where was the interrogation

12 room?

13 A Like I mentioned, that area was sometimes used

14 for storage of excess supplies. So there would be vacant

15 areas where the interview could also be conducted.

16 Q Now, what time did the interview begin?

17 A I remembered it was night time the interview

18 began.

19 Q Were you there at the time that the interview

20 started?

21 A No, ma'am.

22 Q When was the first time that you walked in the

23 room where Mr. Murad was being interrogated?

24 A I can't tell you the exact hour when I first

25 entered the interview room. My concern at that time was

2427

1 really the contents of the documents in the computer, and

2 already there were many people there, and every so often I

3 would literally insert myself, and to ask a question,

4 verifying a lead that I would have found in the documents.

5 Q Mr. Macachor started work on the computer about 6

6 or 7 in the evening?

7 A Yes, you could say that perhaps.

8 Q How long after he was working on the computer did

9 you leave to go to the interrogation room?

10 A When Mr. Macachor was working with the computer I

11 couldn't just take off and leave him. Sometimes we would

12 work, he would work on the computer, he would get some

13 information, we would list that information down on our

14 notes so that we could ask Mr. Murad questions regarding

15 that particular lead, and when he's finished with the

16 computer we would shut it off, I would put it back into my

17 steel locker. That's what we did.

18 Q What time -- withdrawn.

19 When you were instructed that Mr. Murad was to be

20 interviewed and that you were to participate in that

21 interrogation was Mr. Macachor in your office at that time?

22 A He may not necessarily have been in my room in my

23 office, but I know that he was in the vicinity of the

24 building. He was on standby for any instructions from me.

25 I had to have him around so that I could have somebody to

2428

1 instruct, because it was a weekend. It was hard to find any

2 personnel to help me.

3 Q Major Ferro, Col. Garcia gave you the

4 instructions that Mr. Murad was to be interviewed; is that

5 correct?

6 A Yes, ma'am.

7 Q And this instruction that was given to you by

8 Col. Garcia was given to you after you left the PSG offices

9 and came to Camp Crame; is that correct?

10 A The instruction for us to conduct the interview

11 came at night and people were needed to conduct this

12 interview, and we were pressed for time to get, especially

13 to get leads to protect and to secure the state of the Holy

14 Pope.

15 Q Now, this instruction which came at night, was it

16 given to you directly in person by Col. Garcia?

17 A As per our protocol we follow a certain chain of

18 command. Col. Garcia's position is way above me. I'm much

19 lower than him, and sometimes a superior doesn't necessarily

20 have to give us instruction face to face. An order may be

21 passed through an aide.

22 Q I understand that, sir. On that day was the

23 order, did this instruction come from Col. Garcia personally

24 or did it come from an aide?

25 A What I know is that someone had told me that I

2429

1 would be part of the group that would conduct interview with

2 Mr. Murad.

3 Q Now, when that someone told you, did he come to

4 your office or were you summoned to go someplace to get this

5 information?

6 A It's possible that I got the instruction by phone

7 because everybody was very busy at that time.

8 Q And you just stated that you got the instruction

9 at night time; is that correct?

10 A To my knowledge the instruction came at night.

11 Q Now, Mr. Macachor started working on the computer

12 sometime that night; is that correct?

13 A Yes, ma'am.

14 Q Do you remember if he was in your office at that

15 time working on the computer when you got the instruction?

16 A It's possible, ma'am.

17 Q Now, you said that you worked on the computer and

18 then you would go to the interrogation room with information

19 that you wanted to confer with Mr. Murad about.

20 A Yes, ma'am.

21 Q Now, who told you where the interrogation was

22 going to take place?

23 A I guess the people that told me were some of the

24 other persons who went ahead to interview.

25 Q Now, do you know who took Mr. Murad from the

2430

1 detention room to the interrogation room?

2 A I don't know, ma'am.

3 Q How far from the detention room is the

4 interrogation room?

5 A Maybe it's, there's a room in between perhaps.

6 Q Now, do you recall whether the instructions that

7 you received about Mr. Murad being interviewed came before

8 midnight?

9 A I can't tell you the exact hour when I got the

10 instructions. I can say I got it at night. I can't tell

11 you if it was before midnight. All I know is I'm sure I got

12 the instructions that night.

13 Q Do you recall how long Mr. Macachor was working

14 on the computer before you got the instructions?

15 A I'm not sure about the exact time because aside

16 from working with the computer, the documents and the papers

17 I also instructed him to buy food, because we were hungry,

18 we were tired. It was late.

19 Q Approximately how long did Mr. Macachor work on

20 the computer before he took his first break?

21 A I'm sorry I can't really remember that, because

22 that would be difficult to ascertain that time.

23 Q Now, do you know -- withdrawn.

24 When Mr. Murad was placed in the detention center

25 do you know if anyone stayed at the detention center where

2431

1 he was located?

2 A First of all, the security of Mr. Murad is not my

3 concern so in our system someone else will be concerned with

4 the security. So I couldn't tell you who was left with him

5 in the detention room.

6 Q Sir, on the afternoon of January 7th when you

7 arrived at Camp Crame with Col. Garcia and Mr. Murad was it

8 your testimony yesterday that Col. Garcia instructed someone

9 to take Mr. Murad to the detention center?

10 A Yes, ma'am.

11 Q Was it also your testimony that Col. Garcia

12 followed Mr. Murad and the person that instructed to take

13 Mr. Murad to the detention center?

14 A What I remember was we got off the vehicle and

15 Col. Garcia, the person accompanying Mr. Murad and Mr. Murad

16 headed towards the detention room. They headed towards the

17 building where the detention room is located. That was in

18 one direction. And I went to the other direction to go to

19 my office.

20 Q And that was about 2 o'clock in the afternoon?

21 A Maybe it's that time.

22 Q And that was the last time that you saw Mr. Murad

23 before going back to the interrogation room?

24 A Yes, ma'am.

25 Q And that was the last time you saw Col. Garcia

2432

1 that day?

2 A No, ma'am. There are times when I do have to

3 consult with Col. Garcia, and I have to consult with him

4 regarding developments of some of the information that I had

5 gathered from the documents. Our standard operating

6 procedure is that the decision making rests with our

7 superiors, and any steps or moves that we contemplate doing

8 must be cleared with our boss before we do so.

9 Q You indicated earlier that Col. Garcia is so much

10 higher up than you are that he did not always deal directly

11 with you. That afternoon or evening when had you to confer

12 with Col. Garcia did you do this personally with him or did

13 you do it through an aide?

14 A We have a certain protocol that we followed in

15 our country. A person of a very high rank usually does not

16 go down to a person of a lower rank with requests, so we

17 follow a certain standard of courtesy so that a person of a

18 lower rank has to go up to a person of a higher rank.

19 Q You just stated that you had to confer with Col.

20 Garcia that afternoon, that evening. Where was Col. Garcia

21 when you conferred with him?

22 A He was in headquarters of the IC.

23 Q And since he is of such a high rank and much

24 higher than you, who did you speak to when you had to confer

25 with Col. Garcia?

2433

1 A In that particular situation we were dealing with

2 matters that were sensitive to our national security, and we

3 have a saying that of course the commanders should always be

4 informed but still it is not proper for a commander to go

5 down to a person of a lower rank and ask and request.

6 Q Sir, how many times did you have to confer with

7 Col. Garcia that day?

8 A I conferred with him many times that day. It was

9 a long night. We had no sleep, and we really had to pay

10 attention to security of the stay of the Holy Pope in our

11 country.

12 Q You secured --

13 MR. GREENFIELD: Your Honor, you will note I

14 renew my application at this point.

15 THE COURT: Yes.

16 Q You conferred with him many times. The first

17 time that you conferred with him did you go to his office

18 yes or no?

19 THE INTERPRETER: Could the interpreter hear that

20 again, please?

21 Q Did you go to Col. Garcia's office to confer with

22 him, yes or no?

23 A Yes, ma'am.

24 Q Yes or no, did you speak directly to Col. Garcia

25 when you went to his office?

2434

1 A Yes, ma'am.

2 Q And that entire evening each and every time that

3 you conferred with Col. Garcia did you go to his office, yes

4 or no?

5 A Yes, ma'am.

6 Q And, again, yes or no, did you speak directly to

7 him each time?

8 A There were so many times when I had to confer

9 with him. Could you clarify your question? Is it every

10 single time that I spoke with him, is that what you want,

11 ma'am?

12 Q Yes, I want to know if every single time that you

13 spoke to him did you speak to him directly in his office

14 that you went to?

15 A No, ma'am.

16 Q Other than Col. Garcia who did you also speak

17 with when you went to Col. Garcia's office that evening?

18 A At that time Col. Garcia had his command group

19 and/or his staff in the room at times, so sometimes we would

20 discuss, I would ask him questions and there would be a

21 group discussion.

22 MR. KULCSAR: Your Honor, could we have the last

23 answer stricken? The question was who?

24 THE COURT: Group discussion is group discussion.

25 All right. I'll let it stand.

2435

1 Q Now, when you spoke to this group was this group

2 in Col. Garcia's office?

3 A It would vary. Sometimes it would be in his

4 office with the staff. Sometimes we would move to another

5 room and then sometimes to another room. That night was

6 very chaotic.

7 Q Every time that you went to Col. Garcia's office

8 to confer with him or his staff was Col. Garcia always

9 present?

10 A As the commander he had to be in the vicinity of

11 the headquarters. We were all on standby and our status at

12 that time was that of red alert. So the person that had to

13 speak regarding the activities of the headquarters was Col.

14 Garcia, so he had to be there.

15 Q Sir, each time that you went to Col. Garcia's

16 office to confer with him you spoke with either Col. Garcia

17 or to his commander group in a room, was Col. Garcia always

18 present when you spoke to his staff that evening?

19 A If I would see him frequently that night then I

20 would say, then I can say that I saw him frequently that

21 night.

22 Q When you went to -- withdrawn.

23 When you reviewed the information on the computer

24 with Mr. Macachor was it after that time that you first

25 conferred with Col. Garcia?

2436

1 THE INTERPRETER: Could you please repeat the

2 question?

3 THE COURT: Read it back.

4 (Record read)

5 A Before I went to Col. Garcia to confer with him

6 we have reviewed the contents of the computer, some of the

7 contents of the computer that night.

8 Q And that was after you spent some time with

9 Mr. Macachor reviewing the information on the computer?

10 MR. SNELL: Objection.

11 THE COURT: Yes, he just said.

12 Q Now, did you, the first time that you conferred

13 with Col. Garcia was it after receiving instructions that

14 Mr. Murad was to be interrogated?

15 A First I looked at the document in the computer

16 and then I consulted with Col. Garcia regarding the

17 information from the documents in the computer, and then I

18 went to the room where Mr. Murad was being interviewed.

19 Q Now, when you first entered the room that Mr.

20 Murad was being interrogated in how many people were there

21 at that time?

22 A When I first entered the room when the room the,

23 room where Mr. Murad was being interviewed, I remember

24 seeing one person.

25 Q And where was the other eight or nine people that

2437

1 you mentioned that participated in the interview of Mr.

2 Murad?

3 A I remembered seeing one person in the room when I

4 first entered the interview room. As for the other eight or

5 nine I believe there were another room. They would be

6 comparing their notes of one person, of one interrogator

7 would compare answers and questions with another

8 interrogator.

9 Q When you entered the room was Mr. Murad standing

10 or seated?

11 A He was seated, ma'am.

12 Q And was he blindfolded?

13 A Yes, ma'am.

14 Q And he was handcuffed?

15 A Yes, ma'am.

16 Q Was his feet shackled?

17 A I didn't see if his feet were shackled. I saw

18 his eyes were blindfolded and he was handcuffed.

19 Q Do you know how long -- withdrawn. You just

20 stated that the interrogators were in another room comparing

21 notes. Was that room next to the interrogation room?

22 A I don't know if that room is right beside the

23 room where Mr. Murad is being held for the interview. I

24 know that there are other rooms and other offices.

25 Q Now, when you went there and you saw the

2438

1 interrogators comparing notes, did you speak to those

2 interrogators that had notes?

3 A At that time I didn't consult with them a lot. I

4 was consulting mostly with Col. Garcia regarding the

5 developments.

6 Q But you saw them comparing notes with each other?

7 A They were conferring with each other to verify if

8 what Mr. Murad was telling them was right or wrong.

9 Q So was it your understanding that these notes

10 that they were comparing with each other were notes taken at

11 separate times from their interrogation of Mr. Murad?

12 A To my understanding they were comparing notes,

13 and I believe they would have, they have to compare notes to

14 check for consistency of Mr. Murad's answers to questions.

15 That's the way we do things.

16 Q And they were checking for consistency between

17 notes, because different interrogations had taken place; is

18 that correct?

19 A Yes, ma'am.

20 Q Now, you don't know how long Mr. Murad was being

21 interrogated before you went into that room the first time.

22 Is that correct?

23 A Yes, ma'am. I couldn't tell you what time the

24 interview started because I wasn't there.

25 Q You don't know when was the first time that

2439

1 anyone went to Mr. Murders cell while he was there in the

2 detention room?

3 A To my understanding Mr. Murad was not interviewed

4 in the detention room but rather in another room, so I

5 couldn't tell, and I don't know if there was anybody who

6 went into the detention room to interview him before the

7 interview.

8 Q Did anyone inform you as to how the interrogation

9 procedure was before you arrived?

10 MR. SNELL: Objection.

11 THE COURT: He can answer yes or no.

12 A No one informed me, ma'am.

13 Q Of the officers that were there, were they all

14 from the intelligence command group?

15 A Yes, ma'am, to my knowledge they were mostly from

16 intelligence command.

17 Q What was the highest, who was the highest ranking

18 officer there?

19 A Col. Garcia, ma'am.

20 Q Was Col. Garcia in the interrogation room the

21 first time you walked in there?

22 A The first time I entered the room Col. Garcia

23 wasn't there. As I said earlier, I saw one person.

24 Q In the room that the other eight or nine people,

25 were comparing notes, was Col. Garcia in that room?

2440

1 A I didn't go inside so I didn't, I don't, I didn't

2 see Mr. Garcia there.

3 Q Who was the person that was in the interrogation

4 room when you first arrived?

5 A It could be his guard. I don't know who his

6 guard was.

7 Q Was he speaking to Mr. Murad at that time?

8 A He was not. They were not speaking. So I had a

9 chance to speak with Mr. Murad at that time.

10 Q To your knowledge was that person one of the

11 people that interviewed Mr. Murad during that evening?

12 A I'm not sure whether he was one of the people

13 that interviewed Mr. Murad, but when I entered that room it

14 seemed to me that he looked like a guard.

15 Q What was Mr. Murad doing at that time when you

16 walked in?

17 A He was seated, ma'am.

18 Q Was he crying?

19 A No, ma'am.

20 Q When you were there that evening did you ever see

21 anyone strike Mr. Murad?

22 A No, ma'am.

23 Q Did you ever see anyone put a towel over his head

24 and pour water over his face?

25 A No, ma'am.

2441

1 Q Did you ever see anyone order him not to drink

2 his water when he wanted water to drink?

3 THE INTERPRETER: Could the interpreter hear that

4 again, please?

5 MS. BARRETT: Withdrawn.

6 Q Did you ever hear Mr. Murad begging for water and

7 then denied the water by one of the interrogators?

8 A No, ma'am.

9 Q Did you ever hear anyone instruct, anyone of your

10 superiors instruct either you or any of the interrogators to

11 punish Mr. Murad in any way?

12 A I personally know that for us it is not in

13 fashion to inflict pain on a person to get information. We

14 employ newer modern ways of interrogation. I personally

15 know that it's better to ask the person diplomatically for

16 information.

17 Q You just talked about modern ways of

18 interrogation? Was that what you stated?

19 A Yes, I do, pertaining to a newer way of

20 investigating or conducting interrogations that can be done

21 by convincing, by convincing the person without the use of

22 brute force. These ways that you speak of are barbaric ways

23 that pertain to an older life.

24 Q Are you familiar with those barbaric ways?

25 A I personally have not had a chance to participate

2442

1 nor to perform such barbaric ways.

2 Q Sir, do you know if any one of your colleagues or

3 any of the interrogators that participated in interviewing

4 Mr. Murad employed any of those barbaric techniques in

5 interrogation?

6 A No, ma'am.

7 Q You weren't there that entire evening when Mr.

8 Murad was being interrogated; is that correct?

9 MR. SNELL: Objection.

10 THE COURT: Yes, he's already testified.

11 Q You never saw Mr. Murad vomit?

12 A No, ma'am.

13 Q You never saw him being choked?

14 A No, ma'am.

15 Q You never saw them giving him urine to drink when

16 he asked for water?

17 A No, ma'am.

18 Q You never saw anyone applying electrodes,

19 electric shock to his genitals?

20 A No, ma'am.

21 MS. BARRETT: Your Honor, I believe this is the

22 appropriate time to have the stipulation read and the tape

23 played.

24 THE COURT: All right. I don't know if the

25 glitch is fixed yet, ladies and gentlemen, so I am going to

2443

1 take our break now and find out.

2 (Continued on next page)

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2444

1 (Jury, witness, interpreter not present)

2 THE COURT: I understand first of all that you

3 still disagree with this Paris reference in there?

4 MR. GREENFIELD: That's correct.

5 THE COURT: So this stipulation isn't a

6 stipulation because he disagrees with the transcription.

7 MR. GREENFIELD: I disagree with it being played,

8 not necessarily that it's accurate.

9 THE COURT: You disagree with it being played.

10 MR. GREENFIELD: I also disagree with the entire

11 tape being played for the reasons I stated before.

12 THE COURT: Yes. And without a stipulation this

13 guy has not identified the tape, so there you go. But do

14 you still disagree with the entire tape?

15 MR. GREENFIELD: The problem I have, your Honor,

16 among other things, but the primary problem, Paris aside, I

17 am objecting as to proof of this alleged theory that the

18 arrest activities of the police officers were related to

19 some plan on the Pope, and now it's going beyond that. Now

20 it's going to proof that there was such a plan of course in

21 the statement. I don't know if it's true or not. I don't

22 know the circumstances under which it was made.

23 But now no longer justification for activity on

24 the part of the PNP. Now we're getting affirmative proof

25 that in fact this plan did exist, and that goes beyond the

2445

1 pale as far as I'm concerned, and I didn't, they should have

2 known this was coming in. The government I mean.

3 THE COURT: They are not offering it. It's the

4 defense that is offering it.

5 MR. GREENFIELD: This whole thing about the Pope.

6 THE COURT: The Pope is part and parcel. You

7 can't get the Pope out of it.

8 MR. GREENFIELD: For that reason I'm objecting to

9 the tape and if it is played I would move for severance

10 and/or a mistrial.

11 THE COURT: Well, you'll get neither one of those

12 and it's going to be played apparently. The Paris thing

13 however bothers me still. Do you have --

14 MR. SNELL: May I have a moment, your Honor.

15 (Pause)

16 THE COURT: Roy, you're back obviously is in

17 pain. Are you taking something for it?

18 MR. KULCSAR: I apologize. It's the medication,

19 your Honor.

20 THE COURT: That's all right. But I hate to see

21 you in such pain.

22 MR. KULCSAR: I didn't mean to interfere.

23 MS. BARRETT: Your Honor, the Paris situation is

24 unfortunate, but the defense still maintains that it would

25 be more damaging to remove that portion out of the

2446

1 transcript and the tape than it would be to leave it in.

2 THE COURT: Damaging for whom?

3 MS. BARRETT: It would be damaging, if that, to

4 the entire tape and Mr. Murad's defense.

5 THE DEPUTY CLERK: Ms. Barrett, you have to speak

6 into the mic. We can't hear you.

7 THE COURT: This will be damaging to Mr. Murad's

8 defense if we leave Paris in. I don't know. You want Paris

9 in?

10 MS. BARRETT: Yes.

11 THE COURT: You want Paris in?

12 MS. BARRETT: Yes, your Honor.

13 THE COURT: What do you want?

14 MR. SNELL: I was just going to bring everybody

15 up to date I think on where we stand with the tape. As I

16 understand it, the tape has been redacted. Unfortunately a

17 few words came out in addition to the word Paris, but we can

18 adjust the transcript accordingly, or leave the transcript

19 the way it is.

20 I think it probably would make more sense to take

21 those words out of the transcript since that's done

22 relatively easily. I'm sure everybody is going to want to

23 hear the section before it gets played as do I.

24 THE COURT: It's just he's going no place, is

25 that what you are telling me? He is going to blank, not

2447

1 indicating that he was talking to going to Paris.

2 MR. SNELL: Your Honor, the way the transcript

3 reads now maybe I should just hand up the page to the Court,

4 page 20. It says --

5 THE COURT: Just read it to me.

6 MR. SNELL: "I was planning also to go to," and

7 then there are brackets with an empty space. And then a

8 similar redaction appears on page 21 in two places.

9 THE COURT: "I was going to" brackets with an

10 empty space.

11 MR. SNELL: Yes. And that electric stove to

12 blank question mark.

13 MR. GREENFIELD: Your Honor, if I might,

14 Ms. Barrett said something earlier that strikes me now, that

15 they say it's instrumental to their defense. It has nothing

16 to do with my client. If they want to tell that to the jury

17 before they play the tape, they can play the tape.

18 MS. BARRETT: Your Honor, the word Paris is very

19 important here because --

20 THE COURT: Look, I don't care. I'm trying --

21 MR. GREENFIELD: If they want to exculpate my

22 client on the record while they play the tape.

23 THE COURT: If Ms. Barrett says this has nothing

24 to do with your client --

25 MR. GREENFIELD: With the representation of both

2448

1 of these defendants here that that conversation and that

2 statement is unrelated to my client and has nothing to do

3 with it, I'll be happy to have them play the tape.

4 THE COURT: I am not going to broker that, nor am

5 I going to suggest that one way or the other, nor would I

6 believe that the government does. I don't know how they can

7 do that. That would in effect be having two guys testify

8 that your client had nothing to do with it. Good try

9 though, David.

10 MR. GREENFIELD: The reverse is I can't

11 cross-examine the inculpatory nature of the tape even though

12 they say he's not involved in it.

13 THE COURT: But it is Murad saying --

14 MS. BARRETT: I believe he said --

15 THE COURT: -- "I was planning also to go to

16 Paris."

17 MS. BARRETT: That's what he said, your Honor,

18 "I."

19 THE COURT: "I, I, I." And you want Paris in

20 there?

21 MS. BARRETT: That's correct, your Honor.

22 THE COURT: All right. What for? You want that

23 in there, okay. All right. Let me think about it. Give me

24 a copy of the redacted so I can just look at it. This is

25 the redacted one?

2449

1 MR. SNELL: Yes, sir.

2 MS. GRANT: Just those two pages have been

3 changed.

4 THE COURT: Let me read the two of them. You

5 want to listen to the redaction?

6 MR. SNELL: Do we have it here?

7 THE COURT: I don't care. I'm going to take 15

8 minutes, you guys. I'll be back then.

9 (Recess)

10 (In open court; jury not present)

11 MR. GREENFIELD: If the Court please, I

12 understand -- if I'm wrong -- I believe this is the set of

13 facts -- I'm sure I'll be corrected if what I say is wrong.

14 My objection at this point to the playing of the tapes is

15 two-fold. One is the mention of Paris which I understand is

16 easily enough taken care of by the redaction, if that is

17 going to be redacted. Two, and the only other objection I

18 have is not to authenticity. That's not an objection that

19 I'm making. It is to the inclusion of the affirmative

20 proof, and not necessarily believable, but what I will call

21 affirmative proof being offered as a noncharged crime in

22 this case, and I've consistently objected to that type

23 evidence coming before the jury, and the Court has ruled it

24 in, but I thought for a limited purpose, and I thought the

25 government requested it for a limited purpose.

2450

1 THE COURT: Yes, it was for a limited purpose

2 throughout.

3 MR. GREENFIELD: And now it is beyond that.

4 THE COURT: Your co-counsel, the defense, wants

5 it in, right.

6 MS. BARRETT: That's correct, your Honor.

7 THE COURT: And you want all of it in.

8 MS. BARRETT: We want it with Paris.

9 THE COURT: You want Paris in, also.

10 MS. BARRETT: Yes, your Honor.

11 THE COURT: Paris you believe affects your

12 defense.

13 MS. BARRETT: The context in which Paris is

14 mentioned, your Honor, it's important if you would look at

15 the transcript.

16 THE COURT: I looked at the transcript. To say

17 he's going to a place without identifying the place it

18 doesn't seem to make any difference whatsoever.

19 MS. BARRETT: I believe it does, your Honor, and

20 I have listened to the tape and gone over the transcript

21 also.

22 THE COURT: I can't hear you.

23 MS. BARRETT: Your Honor, that would be, that

24 would make a big difference in how that part of the

25 conversation would come out, and with the understanding that

2451

1 we have to listen to the entire tape, your Honor. We would

2 be willing -- I don't know if Mr. Greenfield would have a

3 problem with Europe -- to put in the word Europe in there.

4 THE COURT: Well, you can't do that. I mean

5 we're good at electronics, but I don't think that anybody is

6 going to stick in Europe, not electronically. I don't think

7 you can do that. You either want it in or it's out. You

8 want it in.

9 MS. BARRETT: Your Honor, if somebody listened to

10 these tapes --

11 THE COURT: I can't hear you. If somebody is

12 listening to the tape and --

13 MS. BARRETT: Take out on the transcript, remove

14 the word Paris, put Europe, and then just cut off the word

15 Paris by listening to the tape if somebody is operating it.

16 MR. KULCSAR: Your Honor, I have one other aspect

17 of this that has been discussed, and I think it's clear

18 unless I'm out of place, and I'm sure if I am I'll be

19 corrected by Ms. Barrett.

20 As I understand it, I mean the significance of

21 the tape or part of the significance is it's not being

22 offered as such for the truth of the contents of the tape

23 but rather the state of the mind of the person who is

24 speaking at the time the statements were made.

25 THE COURT: That's what I believe.

2452

1 MR. KULCSAR: So I think since that seems to be

2 the case, if the Court might give an instruction at the time

3 when the jury hears the tape it might obviate a lot of the

4 problems that are being encountered by counsel. I don't

5 think we disagree in terms of its content. I think we're

6 all in agreement if your Honor would consider the

7 instruction.

8 THE COURT: Oh, yes, I'll give that instruction.

9 That's easy.

10 MR. GREENFIELD: But we still leave Paris?

11 THE COURT: They still want Paris. I don't know.

12 I was to Paris once in my life. Nice city.

13 MR. GREENFIELD: Putting the Paris issue aside,

14 are you overruling my continued objection with respect to

15 the tape being played as to the Pope and that whole 404, 403

16 aspect?

17 THE COURT: Yes. You are admitting the

18 authenticity of the tape and so on. You are saying that

19 this Pope business is a problem. That I am overruling. I

20 am going to let that go in.

21 The question now is Paris, and Paris was the

22 one-day question, I think we all agree there, and I don't

23 think it would matter if it came out next week whether it

24 was Paris or not. I don't care. I don't particularly care

25 whether it's Paris or not. If it was next week I assure you

2453

1 it would go in with Paris, and you wouldn't be yelling.

2 MR. GREENFIELD: So overrule me.

3 THE COURT: So overrule who?

4 MR. GREENFIELD: Me.

5 THE COURT: Yes, you're overruled. You like it

6 better that way?

7 How long is the tape?

8 MS. BARRETT: About 40 minutes, your Honor.

9 Between 40 and 45 minutes.

10 THE COURT: 45 minutes. I don't know. I don't

11 remember. We have logistical problems. As you know every

12 now and then I like the jury to eat lunch out because it's

13 better. The last thing I need is a bunch of jurors with

14 cabin fever because they've been sitting in the same room

15 all week. So today was their day out, and I wanted to make

16 sure that the restaurant could hold things off.

17 Apparently, Eric tells me they can. So, Paul,

18 would you get the jury, and we'll put them in the box and

19 we'll play this thing, and off we go.

20 Lillie, do you have the transcripts?

21 MS. GRANT: The transcripts are now ready with

22 Paris.

23 THE COURT: I would prefer a ticket to Paris

24 myself.

25 MR. GREENFIELD: And my overruled objection is

2454

1 clearly in place?

2 THE COURT: Oh, yes, oh, sure. You have made

3 your record. Don't worry about it.

4 MR. GREENFIELD: I'd like to indicate for the

5 record, too, your Honor, that while I had asked earlier for

6 time to discuss with my client the content of the tape, the

7 jury had been brought out. I sent an oral message to the

8 Judge through your law clerk that I so objected to the tape

9 at the time. There seems to be some disagreement --

10 THE COURT: No, I assumed.

11 MR. GREENFIELD: -- about my sending notes to the

12 Court and I just wanted the record to be clear that's what

13 happened.

14 THE COURT: You still objected. Who is

15 disagreeing?

16 MR. GREENFIELD: At this point I would just

17 rather let it go, your Honor.

18 THE COURT: That's all right. Lillie is giving

19 notes to the people behind you, and I send notes to my law

20 clerks and so on and so forth.

21 MS. BARRETT: Your Honor, are you going to read

22 the stipulation into the record? Do you want that I read

23 it?

24 THE COURT: The stipulation is a stipulation. Is

25 it signed? Has somebody got an original that's signed?

2455

1 Strike David's signature because it's no good until it's

2 filed. Somebody have this? I don't have it.

3 (Continued on next page)

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2456

1 (Jury present)

2 THE COURT: I assume you want the witness to hear

3 this, too.

4 MS. BARRETT: Absolutely, your Honor.

5 ALBERT FERRO, resumed, through the interpreter.

6 THE COURT: All right, ladies and gentlemen. The

7 glitches have been cleaned up. I went to school in a much

8 easier time. We didn't have to learn electronics. I was

9 talking with one of my former law clerks who joked about the

10 fact that we used to have carbon paper. You know, nobody

11 changed the stuff because we had carbon paper, and it meant

12 if you changed it you had to retype the whole page.

13 I don't know about you guys, but I'm great for

14 mistyping things and so on and so forth. So we never had

15 any of that. I've learned how to work a xerox machine. I

16 can do certain things with computers, but all of this stuff

17 frightens me.

18 Anyway, the thing about it is we're always

19 changing things back and forth and back and forth and so on

20 and so forth.

21 Anyway, you're about to hear Government Exhibit

22 760, and, Mr. Witness, I want you to listen to Government

23 Exhibit 760, too. Government Exhibit 760 is being offered

24 actually, I guess, by Mr. Murad. 760 contains a fair and

25 accurate excerpts from a recording of a debriefing of the

2457

1 defendant, Abdul Hakim Murad, that took place on or about

2 January 7, 1995 in the Philippines, a copy of which

3 recording was provided to the United States government by

4 the Philippine law enforcement authorities.

5 Government Exhibit 760T is a fair and accurate

6 transcription of the contents of the conversation

7 recorded -- 760T is the transcript, 760 is the tape --

8 except that they have some disputes as to certain things.

9 Now, where there is disagreement as to a particular word or

10 phrase, the italicized and bracketed portion of exhibit 760

11 represents Murad's version of the dispute, and the regular

12 type shows what the government's version is.

13 Now, let me explain something to you. The tape

14 is the real evidence, not the transcript. What they hear on

15 it doesn't really count. It's what you hear on it that

16 counts. The transcript is given to you as an aid. Over the

17 years I can tell you, from listening to tape recordings

18 being played, the first time you hear it it's almost

19 impossible to figure it out.

20 You know I must admit there are even now songs on

21 the radio that I can't understand, and don't laugh. The

22 first time you guys hear them you can't understand them

23 either, right?

24 Anyway, it's an aid and if there is a dispute

25 when the time comes for you guys to make up your mind as to

2458

1 what the facts are in this case you can have the tape

2 replayed and replayed with the transcript, and you figure

3 out what the dispute is, and you figure out what the right

4 answer is.

5 Look, certain things are put in for the truth of

6 what happened, okay? Fine. Other things are put in to show

7 a state of mind and not the truth. So you can have a

8 statement, and the statement is not so much the words run

9 out, but the way it is given. There was a whole routine a

10 long time ago that one of the comics did about the different

11 ways you could say the same line and get different

12 reactions, all right?

13 I remember the line that he used. The line was.

14 "Take your hand off my knee, Lady Plushbottom." Now, roll

15 that around in your head and you can see all kinds of

16 differences, right? Here you're going to be listening for a

17 state of mind. That's what this thing is being offered for

18 and nothing else. The words may or may not be true. That's

19 not what it's being offered for. It's being offered to show

20 a state of mind and that's what we ask you to listen to.

21 All right.

22 (Government's Exhibit 760 received in evidence)

23 Paul, if you'd be good enough to hand the

24 transcripts out.

25 Now I already checked with Eric, kids. Your

2459

1 lunch is going to be waiting for you, all right? We made

2 arrangements for that. This will run maybe 40 minutes.

3 MR. SNELL: I think so, your Honor.

4 (Government Exhibit 760 played)

5 THE COURT: All right, ladies and gentlemen.

6 We'll take our luncheon break right now. Eric, if you

7 would, please.

8 (Continued on next page)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2460

1 (Jury, witness, interpreter not present)

2 THE COURT: Well, plan to be back here at 2:30.

3 How long do you think you're going to be examining this guy,

4 the rest of the afternoon?

5 MS. BARRETT: I think so, your Honor.

6 THE COURT: Okay.

7 (Luncheon recess)

8 (Continued on next page)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2461

1 AFTERNOON SESSION

2 2:50 p.m.

3 ALBERT I.D. FERRO, resumed.

4 (Jury present)

5 THE COURT: The interpreter and I were comparing

6 notes on our daughters. Hers is a bit younger than mine.

7 Ms. Barrett.

8 CROSS-EXAMINATION continued

9 BY MS. BARRETT:

10 Q Major Ferro, prior to lunch you listened to the

11 tape that was played in the court?

12 A Yes, ma'am.

13 Q On the evening of January 7, how many times did

14 you confer with Mr. Murad in the interrogation room?

15 A I can't, I don't remember the exact number of

16 times but we spoke several times.

17 Q Approximately, say, 10 times? Would it be less

18 than 10 times?

19 A Maybe five or six times. When I confer with him,

20 it is usually only for a very short period of time, and then

21 I go out again.

22 Q When you conferred with him, that was always in

23 the interrogation room where he was located?

24 A Only in the interview room.

25 Q When you conferred with him, were there any of

2462

1 the interrogators in that room when you conferred with

2 Mr. Murad?

3 A What I would do was, when there was no one else

4 questioning him, that is when I would be there.

5 Q What time did you say that you left to go home?

6 A I don't remember the time when I went home for a

7 little while.

8 Q Would it be after you were finished working on

9 the computer with Mr. Macachor?

10 A Most probably it was that night that I went home

11 to my home for a little while.

12 Q You said you conferred with Mr. Murad about five

13 or six times.

14 A Yes, that is my estimate, how many times I spoke

15 with him that day.

16 Q Approximately how often did you leave your office

17 to go to the interview room to speak with Mr. Murad?

18 A Like I said, that's my estimate on how often I

19 went to see Mr. Murad in the other room.

20 Q From the first time that you went to see

21 Mr. Murad to the second time that you went to confer with

22 him, how much time passed between the first and second time,

23 approximately?

24 A It is very difficult to estimate how much time

25 that is, because sometimes I would even go out of my office

2463

1 to see Colonel Garcia and confer with him regarding leads

2 that I got from the documents.

3 Q Would more than an hour pass between the times

4 that you would see Mr. Murad, the different times that you

5 would see him?

6 A It is not like I would go to see Mr. Murad every

7 30 minutes. I would see him only when I had certain things

8 that I had to clarify with him.

9 Q Did you ever go more than once to see Mr. Murad

10 during an hour in any given hour that evening?

11 A I can't really estimate the time, but like I

12 said, I would see him maybe five to six times. I can't tell

13 you what was the interval between one visit to the next

14 visit and I can't even say I went there three times in an

15 hour or I went to see him every 15 or 30 minutes.

16 Q Did you ever wait more than an hour from one time

17 to the next time to see him?

18 A I can't really remember, ma'am, but usually if I

19 go there and I see that someone else is with him, then I

20 would usually leave.

21 Q That would be in addition to the times that you

22 conferred with him?

23 A Yes, ma'am.

24 Q Approximately how many times you went there and

25 weren't able to speak to him because other people were

2464

1 interrogating him?

2 A That is very difficult to guess, ma'am.

3 Sometimes I would even call to see if there was someone else

4 there.

5 Q From the time that Mr. Murad arrived that

6 afternoon, did you see anyone give him food to eat?

7 A I didn't see anyone give him any food because I

8 didn't go to visit him that afternoon.

9 Q So you also don't know whether he was allowed to

10 sleep also, is that correct?

11 A I couldn't also tell you whether he slept because

12 I didn't see him.

13 Q Did you ever hear, prior to entering into the

14 interrogation room, did you ever hear Mr. Murad screaming or

15 crying?

16 A No, ma'am.

17 Q You never heard him gasping for air?

18 A No, ma'am.

19 Q Do you know how long he was being interrogated

20 prior to you seeing him for the first time?

21 A I don't know exactly how many hours he had been

22 interviewed before I got there.

23 Q When you conferred with Mr. Murad in order to

24 verify information, did you also confer with the other

25 interrogators who had previously taken notes from their

2465

1 interrogation of Mr. Murad?

2 A This is what happens when I go to see Mr. Murad.

3 Also, I see him but I also go to report to Colonel Garcia,

4 because the other interrogators also report to Colonel

5 Garcia. When I speak to him then I gather some of the leads

6 that had been reported to the colonel.

7 Q When the other interrogators report to Colonel

8 Garcia, is Colonel Garcia generally in his office or is he

9 at the interview site?

10 A I don't know how the other interrogators would

11 report to Colonel Garcia, because at that time I was really

12 busy and focused on my work with the documents, and I didn't

13 see them with my own eyes.

14 Q When you and the other interrogators reported to

15 Colonel Garcia, were you given further instructions as to

16 how to interrogate Mr. Murad by Colonel Garcia?

17 A He didn't give us any specific instructions how

18 we would interview Mr. Murad, and as for myself, my specific

19 instructions were to get whatever information I could get

20 from the documents and from the computer, and then check

21 with Mr. Murad and compare both information.

22 The standard operating principle or procedure of

23 the Philippine National Police is to respect the human

24 rights of any suspect or any accused.

25 Q You heard the tape played today, did you not,

2466

1 sir?

2 A Yes, ma'am.

3 Q In the parts where you heard Mr. Murad crying and

4 his voice changed, do you believe that his human rights were

5 being respected at that time?

6 MR. SNELL: Objection.

7 THE COURT: I will let him answer it.

8 A I can't tell you why he was crying and I can't

9 tell you whether his rights were being respected or not when

10 he was crying. It is true that what we heard was ugly, but

11 because I didn't see what had happened, then I can't do

12 anything about what happened.

13 Q What you heard, do you believe, sir, that that is

14 an indication that his human -- withdrawn.

15 Do you believe, sir, that that was an indication

16 that he was mistreated?

17 THE COURT: Sustained.

18 Q Did you ever hear anyone accusing Mr. Murad of

19 lying?

20 A Could you clarify that, please.

21 Q When you heard, when you were present while other

22 interrogators interviewed Mr. Murad, did you ever hear any

23 of them accuse him of telling lies?

24 A Like I had previously mentioned, when I go to

25 speak with him, I usually wait, I look in to see if there is

2467

1 anyone else interviewing him. So usually when I interrogate

2 him I am alone.

3 Q When you interrogated him, did you ever accuse

4 him of lying?

5 A No, ma'am.

6 Q Sir, I am going to play a certain segment of the

7 tape that I would like to refer you to.

8 For reference, it is page 7 of the transcript,

9 your Honor, the last five lines, and going over to page 8,

10 first line.

11 (Tape played)

12 Q Now, sir, you were in and out of the

13 interrogation room, is that correct?

14 A Yes, ma'am.

15 Q Is it your testimony that you never saw Mr. Murad

16 being beaten?

17 MR. SNELL: Objection.

18 THE COURT: No, I will permit it. Go ahead.

19 A Yes, ma'am.

20 Q You never saw him being mistreated in any way?

21 A No, ma'am.

22 Q Listening to the interrogator on this tape, do

23 you recognize the voice of the interrogator?

24 A No, ma'am.

25 Q Did you ever see anyone denying him of water?

2468

1 A I wasn't able to witness the entire

2 interrogation, so I couldn't tell you about this person who

3 denied him water.

4 Q Let's refer to page 25 of the transcript, your

5 Honor, bottom of page 25, top of page 26, starting at the

6 last two lines of page 25.

7 (Tape played)

8 Q Page 26, starting from line 9 on the top.

9 (Tape played)

10 Q Sir, you heard Mr. Murad telling the interrogator

11 that the treatment has become very bad and you heard the

12 interrogator asking him if he wanted more.

13 A I heard that man.

14 Q Sir, isn't it a fact that that evening of January

15 7 Mr. Murad was beaten and tortured in many ways?

16 A No, ma'am.

17 Q Isn't it a fact that urine was forced down his

18 throat when he asked for water to drink?

19 A No, ma'am.

20 Q Did Colonel Garcia instruct you to accuse

21 Mr. Murad of lying so that you can get certain answers?

22 A No, ma'am.

23 Q Did Colonel Garcia inform you or any of the

24 interrogators in your presence to threaten Mr. Murad of

25 being mistreated again if he didn't give certain answers?

2469

1 A No, ma'am. If one of our leaders gives us such

2 an order, I believe that he will have a big case hanging on

3 his neck.

4 Q I would like to refer you to page 28.

5 (Tape played)

6 Q Sir, did you hear Mr. Murad groaning when you

7 listened to the tape just now?

8 A The sound is not so clear for me. That is why I

9 can't really tell if he was groaning.

10 Q Did it sound as though he was gasping for air?

11 MR. SNELL: Objection.

12 THE COURT: I will let him answer it. Go ahead.

13 A Like I mentioned, the sound quality is really not

14 so clear, and I can't really tell what -- excuse me. Like I

15 mentioned, the sound is not very clear and what you may hear

16 may be different from what I hear.

17 Q Sir, isn't it a fact that Mr. Murad had a towel

18 put over his head and held in such a way that it was

19 difficult for him to breathe?

20 A No, ma'am.

21 Q Isn't it a fact that he was choked several times

22 that evening?

23 A No, ma'am.

24 Q I refer you to page 30 of the transcript.

25 (Tape played)

2470

1 Q Sir, at no time during that evening when you went

2 to see Mr. Murad did you ever see him crying, is that your

3 testimony?

4 A I didn't see him crying when I saw him.

5 Q When you listened to the tape just now, did you

6 hear Mr. Murad crying and begging the interrogator to

7 believe him?

8 A I didn't see him crying when I went to see him,

9 but based on what I have just heard, it does sound like he

10 is begging.

11 Q I am now referring to page 34 of the transcript.

12 (Tape played)

13 Q Sir, on the evening of January 7, did you ever

14 hear or see any of the interrogators jeering and laughing at

15 Mr. Murad while he was in pain?

16 A No, ma'am.

17 Q When you listened to the tape just now, did you

18 hear the interrogator laughing?

19 A Yes, I heard a laugh.

20 Q When you listened to the tape just now and after

21 Mr. Murad seems to be convincing the interrogator that he is

22 a Pakistani, he spoke a language other than English. Do you

23 recognize that language?

24 A No, ma'am.

25 Q Do you speak Pakistani?

2471

1 A No, ma'am.

2 Q That language was not Tagalog, your language, is

3 that correct?

4 A It doesn't seem to be Tagalog.

5 Q When you listened to the tape just now, did you

6 hear what appeared to be Mr. Murad vomiting?

7 A It's not clear to me whether he vomited or not.

8 Q At any time when you visited the interview room,

9 was there any indication that Mr. Murad had been vomiting?

10 A No, ma'am, I didn't see anything.

11 Q You testified that at some point you learned, or

12 you determined that Mr. Murad was being taped during his

13 interviews.

14 A Yes, ma'am.

15 Q Was that the evening of January 7?

16 A No, ma'am.

17 Q You were given transcripts of other tape

18 recordings?

19 A Of this particular tape, I didn't see any

20 transcripts.

21 Q Other than January 7 when you participated in the

22 interview of Mr. Murad, did you participate again in other

23 times that Mr. Murad was interviewed?

24 A I remember one tape where I was included --

25 correction. I remember two or three tapes where -- I am

2472

1 sorry -- two or three days after the 7th of January, I was a

2 participant to other interviews with Mr. Murad.

3 MR. GREENFIELD: Let the record reflect, your

4 Honor, that the witness corrected two prior English

5 translations and the third was accepted.

6 THE COURT: I don't know whether they were being

7 corrected or not, but there was a conversation, yes. I have

8 no idea what was said.

9 Q Were any of those conversations taped?

10 A I remember that time I actually saw the recording

11 device there while we were interviewing him.

12 Q On the evening of January 7 when you were

13 conferring back and forth with Mr. Murad, were there

14 times -- withdrawn.

15 You conferred with Mr. Murad to verify certain

16 information, is that correct?

17 A Yes, ma'am.

18 Q When you conferred with him, you made comparisons

19 with your notes from the computer?

20 A I would compare the leads I would get from the

21 computer and the documents that I got from the PSG with what

22 Mr. Murad would tell me.

23 Q And you would also confer with Colonel Garcia?

24 A I would show Colonel Garcia what developments I

25 had gathered from the documents after I also speak to

2473

1 Mr. Murad.

2 Q Were there times that you were given certain

3 answers to questions by Mr. Murad that were different from

4 answers that he may have given to you -- withdrawn.

5 Were there times that Mr. Murad gave you answers

6 to certain questions?

7 A Yes, there were times.

8 Q Were there times that those answers were

9 different from answers that he would give to the same

10 questions at the later time that you conferred with him?

11 A When I would speak with Mr. Murad, I noticed that

12 he was easy to talk to and pretty much his answers were

13 consistent from before and after.

14 Q During the time that you spoke to him, the

15 several times that you spoke with him that evening, did you

16 ever see anyone giving him anything to eat?

17 A I believe that he was fed because it is our

18 standard operating procedure that a prisoner or an accused

19 person be fed, and they eat, we feed them what they can eat.

20 We believe, I believe that Muslims do not eat pork.

21 Q Were you present that evening when he was fed?

22 A No, ma'am, but to my knowledge what is fed is

23 what he could eat according to his religion.

24 Q Mr. Murad was in your custody for how long?

25 A I can't tell you the exact number of days when

2474

1 Mr. Murad was in our custody, but he was with Intelligence

2 Command from two to three months. I would have to base my

3 estimate from the time he was turned over to us by the PSG

4 and he stayed with the Intelligence Command to the time when

5 he was turned over by the Philippine government to the U.S.

6 authorities.

7 Q On the evening of January 7 when you went to the

8 interrogation room and saw other interrogators interviewing

9 Mr. Murad, did you ever see them using notes, having papers

10 in their hands while they were talking to Mr. Murad?

11 A Like I said earlier, I didn't see the entire

12 group around Mr. Murad interrogating him, but I would

13 presume that they would have had notes.

14 Q You stated that there are times that when you

15 went to the interview room you were not able to speak to

16 Mr. Murad because other people were interrogating him. Is

17 it fair to say that you saw that he was being interrogated

18 and that is how you knew that he was being interrogated?

19 A Before one goes in the interview room, you have

20 to deal with the guards outside. So what I would do is, I

21 would ask the guards outside is there anyone working with

22 him, and sometimes when there is nobody working -- when

23 there are people working with him, then I wouldn't go in.

24 Q During the evening of January 7 when you went to

25 the interview room, at any one time was there more than one

2475

1 person conferring with Mr. Murad at the same time?

2 A I couldn't tell you how many because I didn't

3 really see how many people there were in totality inside the

4 interview room.

5 Q Did you ever see more than one person at any one

6 time in the room at the same time with Mr. Murad?

7 A No, ma'am, because I don't join the entire group

8 when they ask questions.

9 Q I didn't ask if you had joined the group. I

10 asked you, did you see more than one person in the room with

11 Mr. Murad at any given time when you visited the interview

12 room?

13 A When I went in there, I saw his guard.

14 Q On that evening was the blindfold ever removed

15 from Mr. Murad's face?

16 A I didn't see his blindfold removed when I went to

17 see him.

18 Q Did you ever see him, when you visited with him

19 did you ever see him with any papers or books or anything in

20 his hand?

21 A No, ma'am, the table was clean.

22 Q How many interviews other than January 7 did you

23 participate in with respect to Mr. Murad?

24 A I remember participating in one interview with

25 him.

2476

1 Q To your knowledge -- withdrawn. Did that

2 interrogation take place also at the same interrogation

3 room?

4 A Yes, ma'am.

5 Q To your knowledge, did all the other interviews

6 or interrogation of Mr. Murad take place in the same burnt

7 out building?

8 A I couldn't tell if the other interviews were held

9 there or another room, but the interview that I was present

10 in was held there.

11 Q Do you know if the interview took place in that

12 same burnt out building?

13 A Like I said, ma'am, I didn't participate in the

14 other interviews, so I couldn't tell you.

15 Q Who was in charge of Mr. Murad during the two to

16 three months that he remained with the Intelligence Command?

17 A To my knowledge, the person in charge of the

18 security is Mr. Phillips.

19 Q Did you confer with Mr. Phillips during the three

20 months that he was in charge of Mr. Murad?

21 A For us, we have this work concept of

22 compartmentalization, and so you generally pay attention to

23 your own work. What he does in his own work is his

24 business.

25 Q Did you have anything to do with Mr. Murad during

2477

1 the two to three months that he was in custody with the

2 Intelligence Command group?

3 A Usually if I have to do some followups on any

4 leads, then I would speak to, I would go to Mr. Murad on

5 orders of Colonel Garcia.

6 Q Apart from January 7, how many times did you

7 speak with Mr. Murad?

8 A I couldn't tell you how many times exactly, but

9 during his stay at Camp Crame, I would go to him whenever I

10 had to clarify certain leads.

11 Q Did you see him every day?

12 THE INTERPRETER: Could the interpreter hear --

13 Q Did you see Mr. Murad every day?

14 A Ma'am, I need a clarification. Do you mean you

15 want to know if I saw him every single day after the 7th of

16 January until the day he was turned over to the FBI?

17 Q That is correct.

18 A No, ma'am.

19 Q Did you see him every other day?

20 A That really depends. I don't know if I could

21 even tell you that I saw him every other day. I saw him

22 only when I had to confer and confirm certain leads with

23 him.

24 Q Did you see him at least three times a week?

25 A I am not sure, ma'am. That is why I can't be

2478

1 certain about the frequency.

2 Q Did you see him at least every week?

3 A From the time I saw him first to the time he was

4 turned over?

5 Q Yes. Did you see him at least once a week?

6 A In the subsequent weeks, I also got instructions

7 regarding other matters, regarding our other jobs. So I

8 couldn't tell you if I saw him every week after the 7th of

9 January.

10 Q Could you approximate how often you saw Mr. Murad

11 over the two, three months that he spent in the Philippines

12 with the Intelligence Command group?

13 A It would really be very awkward for me to even

14 approximate the time. I would see him as the need arises

15 and there were times when I would even send my subordinate

16 to get information from him.

17 Q What is the name of your subordinate?

18 A Mr. Jingo Rivel.

19 Q When Mr. Rivel goes to see him -- when did

20 Mr. Rivel go to see him?

21 A Mr. Rivel would go to the interview room where

22 they would talk.

23 THE COURT: We will stop right there for now, and

24 at least we will take a break. Ladies and gentlemen, go

25 ahead.

2479

1 (Jury excused)

2 THE COURT: The reason I had to break in is one

3 of the jurors feels sick. I don't know whether it will be

4 the end of the day or not. I just don't know. I will find

5 out and let you know. We will at least take 10 for now.

6 (Recess)

7 THE COURT: I am here to report that the juror is

8 not feeling well enough to continue. It is now 10 minutes

9 after 4. What's the difference? So 20 minutes out of a

10 trial day is nothing to get excited about. I sent them

11 home.

12 Today is Thursday. Monday at 9:30, we will

13 continue on. Do you have much left with this guy?

14 MS. BARRETT: No, your Honor. I actually can

15 finish in a half hour.

16 THE COURT: David, do you have much with this

17 fellow?

18 MR. GREENFIELD: I would like to review the tape

19 and see what I will incorporate into my cross. Otherwise,

20 less than an hour, without that.

21 THE COURT: Hopefully you will have a short

22 redirect and other people.

23 MR. SNELL: Your Honor, there is virtually

24 nothing that we are considering at this point. To put

25 everyone on notice, there is a tape, as the witness

2480

1 testified, of an interrogation that he did, and we are

2 considering whether we might be able to introduce a section

3 of that interrogation, because I think it relates to some of

4 the cross-examination that was done here.

5 THE COURT: Those have all been turned over?

6 MR. SNELL: Yes. We are working on a transcript

7 and we will turn it over immediately once it is in final

8 form.

9 THE COURT: Which tape is it? Let them know.

10 MR. SNELL: We will let everyone know.

11 THE COURT: Before the night is out, I want you

12 to let them know exactly what tape you are talking about.

13 MR. SNELL: I can say now that the content is

14 where they are discussing the flight simulator, if that

15 helps anyone.

16 THE COURT: It doesn't help me.

17 Monday, 9:30.

18 (Proceedings adjourned until 9:30 a.m., Monday,

19 July 22, 1996)

20

21

22

23

24

25

2481

1

2 INDEX OF EXAMINATION

3 Witness D X RD RX

4 ALBERT I. D. FERRO...............2419

5 GOVERNMENT EXHIBITS

6 Exhibit No. Marked Received

7 760 ........................................2458

8

9

10

11

12

13

14

15

16

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18

19

20

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24

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2482

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 22, 1996 9:35 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorneys

17 ROY KULCSAR, Legal advisor for defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorneys for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY MIRA RIVERA 24

25

2483

1 (Trial resumed)

2 (Jury present)

3 THE COURT: I assume we are not going to be

4 playing any more tapes today.

5 MS. BARRETT: I don't expect to play any more

6 tapes, your Honor, and I don't believe the government is

7 also.

8 THE COURT: You indicated that you were close to

9 finish with this particular witness. Do you think you will

10 be finished with him soon?

11 MS. BARRETT: About a half hour, your Honor.

12 THE COURT: Fine. David, are you going to be

13 long with this witness?

14 MR. GREENFIELD: It could be somewhat longer than

15 I thought, your Honor. Honestly, I am having a hard time

16 determining the length of cross because of both the

17 interpretation and also what I believe is the lack of

18 responsive answer.

19 MR. KULCSAR: Your Honor, good morning.

20 THE COURT: Good morning. Does it feel strange

21 there to you?

22 MR. KULCSAR: Yes, very.

23 Your Honor, the reason I am taking this

24 opportunity to address the court is that I am sure the court

25 is aware that between Friday and today there has been a

2484

1 substantial amount of publicity both on television and in

2 the newspapers concerning the Flight 800 and the unfortunate

3 speculation by former law enforcement persons and news

4 personnel, news people, as to the cause of the explosion on

5 the airline. I did not see but I was told by a number of

6 people that on Friday ABC network news Peter Jennings in

7 point of fact carried a story -- as I understand it they had

8 information from some law enforcement source --

9 unidentified, obviously -- that the source had received some

10 kind of correspondence from a group or a person that claimed

11 responsibility for the explosion and that this person or

12 group caused this explosion in retaliation for the capture

13 and arrest and prosecution of Mr. Yousef. Mr. Garcia and I

14 spoke about it and we were trying to get a transcript. I

15 don't know if Mr. Garcia was able to get one as yet.

16 MR. GARCIA: Your Honor, I have heard about this

17 news story. I think that we were able to obtain a

18 videotaped copy of the news story. I haven't seen it yet.

19 My understanding is that there is no quote from a named or

20 unnamed law enforcement source but that a former law

21 enforcement official is on the TV speculating. But again, I

22 haven't seen the tape yet.

23 MR. KULCSAR: I understand that there was another

24 story again on ABC of a similar nature on Saturday. I was

25 told by a number of other people that on Channel 13 on

2485

1 Sunday morning they had some kind of news program during

2 which they had some retired FBI person and that person went

3 into an extensive discussion about the fact that Mr. Yousef

4 was alleged to have carried an explosive device onto a

5 Philippine Airline jet and a similar device in the lavatory,

6 and how that type of device could very well be the same type

7 or similar device as caused the explosion on Flight 800, and

8 then there was some type of group discussion. Obviously

9 there has been widespread publicity in the various

10 newspapers.

11 My concern is that I am sure the jury is doing

12 its best to adhere to your Honor's admonishments, but I

13 think that logic might dictate that it is very hard for them

14 to avoid some kind of contact with it, for the simple reason

15 that anyone that knows anything about their involvement as

16 jurors perhaps might bring to their attention what they

17 might otherwise have avoided.

18 So I am not suggesting that they are not

19 fulfilling their obligation or commitment to the court. I

20 am suggesting that even with that there is a strong

21 likelihood that it has been brought to their attention by

22 other persons, and I would suggest that some type of inquiry

23 at this point by your Honor is warranted with respect to

24 what in particular they may have heard. Your Honor may want

25 to do that on a one-on-one basis.

2486

1 THE COURT: Not yet.

2 MR. GREENFIELD: Your Honor, if I might add.

3 THE COURT: I will explain to you why.

4 Yes.

5 MR. GREENFIELD: If the court please, I handed up

6 earlier representative articles. I don't know if the court

7 has them in hand at this point.

8 THE COURT: These things?

9 MR. GREENFIELD: Yes, your Honor.

10 THE COURT: I saw somebody left them here.

11 MR. GREENFIELD: One is an article in Saturday's

12 New York Post that points directly to Mr. Yousef. Then I

13 think there are articles or an article in the Sunday Daily

14 News doing the same thing, and also, I believe, the Post.

15 THE COURT: Sunday Post?

16 MR. GREENFIELD: Yes, and I think I have given

17 those articles to the court also.

18 Particularly with the News, I brought to the

19 court not only the article that indicates the writer's

20 belief that Mr. Yousef was involved but 20 pages

21 consecutively of stories dealing with speculation as to the

22 cause and also the unfortunate plight of the families and

23 things of that nature.

24 Clearly we have passed the point where we can

25 speculate whether or not a jury has possibly seen any of

2487

1 these articles. We know that they have seen, we know that

2 they have heard, we know that they have watched on TV. Even

3 if they watched the Olympics they heard it. No matter where

4 they directed their attention, if they were in communication

5 with or listening to or reading newspapers, watching TV,

6 they had to hear about this.

7 THE COURT: Let me give you one more speculation.

8 MR. GREENFIELD: Certainly.

9 THE COURT: Speculation, one that was tossed out

10 to me. Your client, your client believes that he has a

11 perfectly wonderful shot of being acquitted. He believes

12 also that he would be not acquitted if the case went through

13 at this time. He believes he would be acquitted if there

14 was a mistrial and the government was forced to redo the

15 entire thing, including bringing people from overseas.

16 Therefore your client contacted his buddies on the outside

17 and they are the ones responsible.

18 Is this a possibility? You are about to say no,

19 this could never happen. Believe it or not, someone

20 suggested that to me, and I said what you think I would say.

21 MR. GREENFIELD: Am I allowed to put those things

22 on the record?

23 THE COURT: No. God forbid that we would shock

24 the Court of Appeals.

25 Utter nonsense, but that is the wild speculation

2488

1 that is going in. To say that we should at this point go

2 and do something precipitous is something that I refuse to

3 do, and that is why I refuse to do it.

4 I will tell you this much: By Wednesday noon I

5 will have talked to each member of the jury. I haven't

6 talked to any of them yet. If we don't have some resolution

7 today and we don't have some resolution tomorrow, I will do

8 it without resolution and talk to each one of them. But

9 between now and then I am not going to move, not yet.

10 Running in and doing something, coming off and saying

11 something is perhaps the worst possible thing we can do.

12 The only thing I wanted to make sure that the

13 jury is constantly reminded of is that all of this stuff is

14 wild speculation and that they should not be involved in

15 wild speculation, that is not their kind of work. That I

16 will be telling them.

17 But by Wednesday if not before, I will be talking

18 to each one of them, for sure. I am not insensitive as to

19 what is going on here. By the way, this thing about your

20 client, it didn't come from law enforcement or anybody

21 connected with law enforcement. It is the wildest thing I

22 ever heard. I am not going to tell you who but it is just

23 absolutely off the wall wild.

24 MR. GREENFIELD: It certainly is off the wall.

25 THE COURT: Maybe he doesn't think it is but I

2489

1 told him no. But I am not going to do anything, I am going

2 to try to get some more facts.

3 MR. GREENFIELD: Will we be participating --

4 THE COURT: Most likely you will be able to watch

5 it and listen, yes. Whether you will be participating in

6 the sense of asking questions directly, the answer to that

7 is no, but you will have input, for sure, and you will be

8 there watching it happen. Action.

9 MR. GREENFIELD: Thank you, your Honor.

10 THE COURT: As of just a few moments ago we were

11 still missing one juror. I will go back and check it out.

12 However, this guy has been a problem for a long time. If he

13 is not here, I am going to seriously consider going ahead.

14 I will come out and talk to you about it. Got the picture?

15 I will be right back.

16 MR. GREENFIELD: With respect to the Fridays, has

17 the jury voted --

18 THE COURT: Yes, we are going to start the first

19 Friday in August.

20 MR. GREENFIELD: If the court can perhaps work

21 out some sort of schedule, giving us an hour later start

22 possibly so that we can take care of pressing matters in the

23 office, like paying bills?

24 THE COURT: Don't bother. They don't bother

25 paying your bills, why should you bother paying theirs? Be

2490

1 right back.

2 (Recess)

3 ALBERT I.D. FERRO, resumed.

4 THE COURT: Guys, over the last weekend or so

5 there has been intense speculation bounced off everybody,

6 mainly, I think, because the press needs something to say.

7 Everybody is looking for answers in connection with this

8 incident out here on Long Island, the airplane crash.

9 Nobody has answers so they make up speculation.

10 You are not dealing in speculation, I am not

11 dealing in speculation. I hope to God you avoided it, but

12 if you couldn't avoid it, just put it down to intense

13 speculation. It's like when you go outside and dream up the

14 greatest story you can and then go and see if somebody will

15 print it, you know, or if they don't print it, call up your

16 friends in the television studio and say hey listen, why

17 don't you interview me today. When they start interviewing

18 each other, by the way, guys, you know that there is very

19 little hard news going, and apparently there was an awful

20 lot of that kind of stuff going on.

21 One way or the other, your oath is to do your job

22 based on the law and the evidence, not let any speculation,

23 not let this, that or the other thing interfere with you. I

24 hope to God that you will follow that and you will continue

25 to follow it.

2491

1 OK, we were in the midst, Miss Barrett, of your

2 cross-examination. So we will pick up from there.

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2492

1 CROSS-EXAMINATION, continued

2 BY MS. BARRETT:

3 Q. Good morning, Major.

4 Am I correct in stating that you testified that

5 Mr. Murad was in custody for about two to three months?

6 A. Yes, ma'am, he was in the custody of the

7 Intelligence Command for that amount of time.

8 Q. During that time did he always remain in the

9 detention center at Camp Crame?

10 A. To my understanding, he was there during that

11 time, but I didn't see him every day so I can't vouch that

12 he was there every single day.

13 Q. During the times that you saw him over that

14 three-month period, was he always blindfolded?

15 A. I don't remember if he was blindfolded the whole

16 time, but that first week when he was being brought to the

17 interview room, he was blindfolded.

18 Q. Did you at any time ever see Mr. Murad at any

19 place other than in the interview room?

20 A. When he was with the Intelligence Command, I

21 would see him only in the interview room.

22 Q. I believe it was also your testimony that Major

23 Phillips was in charge of the security of Mr. Murad, is that

24 correct?

25 A. Yes, to my knowledge it is Major Phillips who was

2493

1 given the instructions to take care of Mr. Murad's security.

2 Q. To your knowledge, was that Major Phillips'

3 responsibility for the time period that Mr. Murad was in

4 custody?

5 A. Yes, to my knowledge, yes.

6 Q. When you went to interview, when you went to

7 speak to Mr. Murad in the interrogation room, were there

8 times that you saw Major Phillips?

9 A. When I speak with Mr. Murad, he would be speaking

10 only with me. There would not be any other person there.

11 Q. When you go to the interrogation room, am I

12 correct in stating that there are security guards there?

13 A. I would not let the guard go in the room, I would

14 just let him stay outside, because I noticed that in my

15 conversations with him and in my relationship with him, he

16 was quite cooperative.

17 Q. Is it fair to say that while he was in custody he

18 was being guarded?

19 A. Yes, ma'am.

20 Q. Where would the guards be in relation to

21 Mr. Murad when you saw him?

22 A. Sometimes they would be outside the door but

23 sometimes they would just be around the vicinity. They had

24 to be available for any other responsibilities that they

25 might be given, or to satisfy any needs that Mr. Murad would

2494

1 have.

2 Q. Are you saying that there are times that

3 Mr. Murad was alone?

4 A. I can't say that, ma'am, because I wasn't there

5 all the time.

6 Q. When you were there, did you ever go to the

7 interrogation room and find Mr. Murad alone?

8 A. What I mean to say, ma'am, is that whenever I go

9 to see him in the interrogation room there is a guard.

10 Q. When you went to see him was there generally only

11 one guard or more than one guard?

12 A. Generally I would see only one guard.

13 Q. Would that be Major Phillips sometimes?

14 A. No, ma'am. Major Phillips is a high official and

15 the people guarding Mr. Murad would be subordinates.

16 Q. To your knowledge, did Major Phillips participate

17 in the interrogation of Mr. Murad?

18 A. I couldn't say if he was a participant because I

19 didn't see him participating in interrogating Mr. Murad.

20 Q. I believe you stated, sir, that even though you

21 did not participate in every interrogation, that you became

22 aware that much of the interrogation of Mr. Murad was taped,

23 is that correct?

24 A. Yes, ma'am.

25 Q. And I believe you also stated, sir, that those

2495

1 tapes were turned over to you at some point.

2 A. Yes, ma'am.

3 Q. And transcripts were made of those tapes?

4 A. The interviews that were assigned to me, we were

5 able to make summaries of those.

6 Q. Did you participate in the transcriptions of the

7 tapes?

8 A. When I would be conducting the interview, I would

9 also take notes while the interview was progressing, and the

10 record that would be completed from the tape would be

11 something, would be a document that is apart. What my

12 subordinates come up with regarding transcribing the tapes

13 would be submitted to me, since I am their chief.

14 Q. What did you do with those transcripts?

15 A. We would use the transcripts so that we may

16 continue further questioning, or so that we may gain leads

17 for the further investigation.

18 Q. While Mr. Murad was in your custody, isn't it

19 correct that you were also in contact with the FBI?

20 A. When we finally informed the FBI regarding their

21 plan, that is, the bombing of the aircraft, that is when the

22 cooperation started between our government and theirs.

23 Q. Do you recall at what point that you started

24 talking to the FBI regarding Mr. Murad?

25 A. The responsibility or authority for coordinating

2496

1 with the U.S. government did not rest in my hands. Rather,

2 it would rest in higher officials' hands, for example, my

3 boss himself, Colonel Garcia. We who are much below, much

4 lower than these officials, would just get instructions.

5 For example, we provide information to the FBI as the need

6 arises.

7 Q. When you provided information as the need arises,

8 who did you speak with at the FBI?

9 A. Once a certain matter has been cleared by my boss

10 regarding providing information to the FBI, I would

11 generally speak to Mr. Frank Pellegrino.

12 Q. Did you speak to Mr. Pellegrino in January of

13 1995?

14 A. Maybe I spoke with him but only once the holy

15 Pope had left our country.

16 Q. How long after the Pope left did you speak with

17 Mr. Pellegrino?

18 A. I can't remember the exact date, but possibly

19 January.

20 Q. Am I correct in stating that the Pope left Manila

21 around the 16th of January?

22 A. I can't remember exactly when he left, but if

23 that is the information that you got, perhaps you are right.

24 Q. Would you have spoken to Mr. Pellegrino just a

25 few days after the Pope had left?

2497

1 A. I can be sure that I spoke with him in January.

2 As to the exact date, I can't really tell you that because

3 those times were so uncertain and so chaotic.

4 Q. In any event, when you started speaking to him in

5 January, how often did you speak to Mr. Pellegrino while

6 Mr. Murad was in custody?

7 A. Again, I can't tell you exactly how often I would

8 see him, but Mr. Pellegrino and his team came to see us and

9 I had something to do with them regarding documents and

10 computers. They were interested in fingerprinting. So I

11 had something to do with him during his stay.

12 I would like to add also that he was interested

13 in the laptop computer.

14 Q. You stated just now that your subordinates made

15 transcripts of the tape recordings that were made of

16 Mr. Murad's interrogation.

17 A. What I know is, I made transcripts of the summary

18 of the interview that was conducted with him.

19 Q. The tapes that were made, am I correct in stating

20 that transcripts were made of those tapes?

21 A. If I am understanding you right, when you talk

22 about transcripts you are talking about a word-for-word

23 translation of what was said in the tape. We don't do that.

24 We only make a brief summary of what was in the interview.

25 Q. And those brief summaries were taken from the

2498

1 tapes -- withdrawn.

2 Those brief summaries that were made, were they

3 made from listening to the taped conversations?

4 A. My participation is this: The brief summary of

5 the subsequent tapes were made by my subordinates.

6 Q. Did you make any summaries after listening to any

7 tapes?

8 A. Yes, ma'am. The following week when I conducted

9 the interviews, I made a summary of that.

10 Q. Did you make the summary of the tape that was

11 recorded on January 7?

12 A. I would like to repeat myself, ma'am. I was not

13 the person conducting that interview that 7th of January, so

14 I did not make the summary.

15 Q. After the tape was made on January 7, do you know

16 if a summary was prepared of that tape?

17 A. I don't know if there was a summary, nor do I

18 remember if a summary was made of that tape.

19 Q. Of the summaries of the tapes that were made, are

20 those some of the documents that were turned over to the

21 FBI?

22 A. I don't know if summaries of the tapes were

23 turned over to the FBI. According to the receipt that I

24 made regarding the items that I turned over to the FBI,

25 these covered the documents that I personally handled along

2499

1 with the laptop computer.

2 Q. When summaries were made of the tapes by your

3 subordinates, were they then turned over to you?

4 A. Yes, ma'am.

5 Q. What did you do with these summaries after you

6 received them from your subordinates?

7 A. The first thing I would do is I would inform my

8 superior, Colonel Garcia, as to developments.

9 Q. Does that mean that you discussed the contents of

10 the summaries with Colonel Garcia?

11 A. Yes, ma'am, because we always have to inform him.

12 Q. When you spoke to the FBI, did you also discuss

13 the contents of those summaries with the FBI?

14 A. What I remember discussing with the FBI was

15 regarding the plan to bomb American aircraft and American

16 establishments.

17 Q. Did any of the information that you had --

18 withdrawn.

19 What did you do with the summaries after you had

20 them, after you received them from your subordinates?

21 A. I would like to repeat myself, ma'am. I would

22 inform my boss, and then my subsequent actions would be what

23 he would tell me to do.

24 Q. What did you do with the summaries? Withdrawn.

25 These summaries, they were made on paper?

2500

1 A. Yes, ma'am.

2 Q. What did you do with those papers that you wrote

3 the summaries on?

4 A. What do you mean to say, ma'am? Did I hide them

5 for safekeeping? Did I put them on my table?

6 Q. When your subordinates prepared them, they handed

7 them to you, is that correct?

8 A. Yes, ma'am.

9 Q. Did you give those papers, those summaries to

10 anyone?

11 A. I would give my boss a copy.

12 Q. A copy of everything, you said, of all the

13 summaries that you made?

14 A. Once a summary is done, I give him a verbal

15 report, and then I give him a copy.

16 Q. Did you keep the originals?

17 A. If I remember right, some of those originals

18 would be with me.

19 Q. With you here in the United States or are they in

20 Manila?

21 THE INTERPRETER: Could the interpreter hear the

22 last.

23 Q. Are these reports here with you in the United

24 States or are they in the Philippines?

25 A. It is in the Philippines, ma'am.

2501

1 Q. Is it your testimony that you never gave any of

2 these summaries to the FBI?

3 A. I can't remember if I handed any summaries to

4 them, but if I would see a receipt that I signed today this

5 morning in front of me, then I could tell you.

6 Q. Other than yourself, who turned over documents

7 from the PNP or from the Intelligence Command group to the

8 FBI?

9 A. Because whenever Mr. Frank Pellegrino would speak

10 to me, he would only speak to me. So I did not see any

11 other officials of the Intelligence Command handing

12 documents or any assorted items to the FBI.

13 Q. But you don't know that for a fact.

14 MR. SNELL: Objection.

15 THE COURT: Yes.

16 Q. To your knowledge, did Colonel Garcia personally

17 speak to Mr. Pellegrino while Mr. Murad was in custody there

18 in the Philippines?

19 A. Perhaps, ma'am, because they would speak to our

20 boss Colonel Garcia before they come to us.

21 Q. These documents that you handed over to Agent

22 Pellegrino, am I correct in saying that these were handed to

23 him prior to Mr. Murad being turned over to the FBI?

24 A. Yes, ma'am.

25 Q. Do you know whether any charges were filed

2502

1 against Mr. Murad while he was there in the Philippines?

2 A. What I know was that he was picked up by officers

3 because he violated PD 1866 --

4 MS. BARRETT: Objection to the answer.

5 A. -- which is illegal possession of explosives.

6 THE COURT: I think he is trying to answer.

7 Were there any formal charges?

8 THE WITNESS: I don't know, ma'am.

9 Q. Isn't it a fact that for the three months that he

10 was there he was never brought to court or he was never

11 brought before a judge?

12 A. I can't tell you whether he was requested or

13 brought before a judge because I didn't see that with my own

14 eyes.

15 Q. When you listened to the tape do you recall the

16 interrogator asking Mr. Murad about the Abu Sayaf group?

17 A. I don't remember exactly if he was asked about

18 Abu Sayaf because the questioning was repetitive. Perhaps

19 he was asked about him.

20 Q. Sir, are you familiar with the Abu Sayaf group?

21 A. I know something about Abu Sayaf's group.

22 Q. What is the Abu Sayaf group?

23 A. It's a local extremist terrorist group in our

24 country.

25 Q. Am I correct in stating that prior to January 6,

2503

1 1995, Abu Sayaf has allegedly been responsible for bombings

2 and other antigovernment acts in the Philippines?

3 A. They were suspects in a series of bombings and

4 other terrorist activities.

5 Q. And that includes a pipe bomb explosion that

6 occurred in May 1994, is that correct?

7 MR. SNELL: Objection.

8 THE COURT: If he knows. Go ahead.

9 A. I don't know, ma'am.

10 Q. Do you know if they were suspects in a pipe bomb

11 explosion in November of 1994 at Wendy's San Miguel in

12 Manila?

13 MR. SNELL: Objection.

14 THE COURT: Yes, sustained.

15 Q. Sir, are you aware that human rights

16 organizations, including Amnesty International, consider the

17 PNP as violators of human rights?

18 MR. SNELL: Objection.

19 THE COURT: Sustained.

20 Q. Are you aware of incidents as recently as

21 September 1994 where persons arrested by the PNP died of

22 injuries while in PNP custody?

23 MR. SNELL: Objection.

24 THE COURT: Sustained.

25 MS. BARRETT: No further questions.

2504

1 CROSS-EXAMINATION

2 BY MR. GREENFIELD:

3 Q. Sir, I would like to ask you a few questions

4 before we get into -- withdrawn.

5 I would like to ask you a few questions about

6 your command at Camp Crame. Camp Crame itself has more

7 commands there than just the Intelligence Command, is that

8 not correct?

9 A. Yes, sir.

10 Q. There are a number of different commands that are

11 located at Camp Crame.

12 A. Yes, sir.

13 Q. With respect to your job, you work for the

14 Intelligence Command and I think you said the Special

15 Investigation Group, is that correct?

16 A. Yes, sir.

17 Q. On January 7, 1995, how many subordinates were

18 working under your command in the Special Investigation

19 Group?

20 A. What I remember was at that time a red alert was

21 announced, and the only person that I remember who was with

22 me at the time was Mr. Richard Macachor.

23 Q. As the superior in charge of the Special

24 Investigation Group, how many people were working under your

25 command in that Special Investigation Group?

2505

1 A. I am a branch chief, and above me is the chief of

2 the Special Investigation Group, so I cannot tell you

3 collectively, sir, how many people were working at that

4 time.

5 Q. All I want you to tell me at this point is, as

6 the chief inspector assigned to the Special Investigation

7 Group, you had people working under you, is that correct?

8 A. I would like to repeat myself, sir.

9 Q. I know you would, but I would like to get an

10 answer to my question, too.

11 MR. SNELL: Objection. I think there was more to

12 the answer.

13 THE COURT: Yes. If you want to make a comment

14 make it after the answer, not now.

15 MR. GREENFIELD: I am sorry, go ahead.

16 A. I would like to repeat myself, sir. In those

17 hours, the only person who was with me was Mr. Richard

18 Macachor.

19 Q. Let's get off of January 7.

20 THE COURT: That is the problem. During that

21 period of time, the entire month of January, how many people

22 worked for you?

23 THE WITNESS: My particular branch had 10.

24 Q. And you were the superior officer for those 10

25 people?

2506

1 A. Yes, I am the head of our branch.

2 Q. Sir, as of January 1, 1995, how many men, both

3 officers and subordinates, were assigned to the Intelligence

4 Command?

5 A. I haven't memorized the exact number of this

6 chain for command, so I can't tell you the number of

7 officials nor the subordinates.

8 THE COURT: How about, was it a thousand,

9 approximately?

10 THE WITNESS: Maybe, sir. I can't really tell

11 you the exact number.

12 THE COURT: All right, go ahead.

13 Q. Sir, the compound for the Intelligence Command,

14 how many buildings does it contain? Withdrawn.

15 How many buildings are contained in the compound

16 of the Intelligence Command?

17 A. I am trying to picture and count the number of

18 buildings in that command. It is probably four.

19 Q. Camp Crame itself, approximately how many

20 buildings are within the compound of Camp Crame?

21 A. Maybe it's more than 20.

22 Q. And the Intelligence Command itself, is that

23 separated by some fencing from the rest of Camp Crame?

24 A. Because this is a restricted area, I cannot

25 divulge to you the structure.

2507

1 MR. GREENFIELD: Your Honor, might I ask the

2 court to intercede in my behalf. I don't have any

3 intentions of going over that.

4 THE COURT: Apparently they consider it top

5 secret. Is that correct?

6 THE WITNESS: Yes, your Honor. It is one of the

7 most restricted areas.

8 Q. And it is a heavily guarded area?

9 A. There are guards on the entrances and the exits.

10 Q. Sir, now, if you can, I would like to direct your

11 attention to January 7. I believe your testimony is you

12 arrived at the Presidential Security Group approximately

13 between the hours of 8 and 9 a.m., is that a fair statement?

14 A. We got to the PSG about 9.

15 Q. With respect to what occurred at the PSG on

16 January 7, 1995, did you prepare a report?

17 A. To my knowledge, I didn't make any report.

18 Q. Sir, with respect to January 7 all the way up

19 until the time you turned over the documents to the FBI in

20 March of 1995, did you prepare one single report?

21 A. Yes, sir.

22 Q. And those reports, did you turn those reports

23 over to the FBI?

24 A. I don't remember if I turned over any of my

25 reports to them.

2508

1 Q. Are your reports with you here in the United

2 States?

3 A. No, sir.

4 Q. Sir, when you get to the it PSG on January 7, you

5 received some documents in the conference room, is that a

6 fair statement?

7 A. Yes, on the 7th of January we went to a briefing,

8 and documents and the computer were turned over to us.

9 Q. With respect to the documents only, when you

10 received them on January 7 at the PSG, did you place your

11 initials on each and every one of those documents?

12 A. No, sir.

13 Q. Did you place the date on each and every one of

14 those documents?

15 A. No, sir.

16 Q. Sir, with respect to those documents, did you

17 handle them in a fashion so that you would not either erase

18 or add your own fingerprints to them?

19 A. In those hours we were not wearing gloves when we

20 held those documents, and I would like to add, we didn't

21 bring gloves with us.

22 Q. Sir, when you entered the room, I think your

23 testimony is that there was a meeting already going on in

24 the conference room of the PSG.

25 A. When we entered the room, the officials, Colonel

2509

1 Razon and Colonel Ferrer, were waiting for us.

2 Q. And I believe your testimony was also when you

3 entered the room you saw an attache case on the table, a

4 watch and some batteries, is that correct?

5 A. Yes, sir.

6 Q. Was Chief Inspector Angeles there when you

7 arrived in the room?

8 A. When I got there, I didn't see him.

9 Q. Was he there during the course of the time you

10 were there?

11 A. During my stay there, I didn't see him.

12 Q. Sir, who is Chief Inspector Angeles, by the way?

13 A. To my knowledge, he is assigned to the Western

14 Police District.

15 Q. Sir, there came a time, if I understood your

16 testimony on direct, that after you were in the room some

17 members of the explosive ordinance disposal unit arrived in

18 the conference room, is that correct?

19 A. I saw one man in a black outfit marked EOD, and

20 he was holding what I understood to be a live bomb. This

21 person was wearing an outfit with a patch that said EOD.

22 Q. How long were you in the conference room before

23 this person arrived?

24 A. I don't know how many minutes before I got there

25 or after I got there. All I know was he came.

2510

1 Q. No, no. You testified directly he came after

2 your arrival, is that correct?

3 A. I don't remember whether he was already there

4 when we got there or he arrived after we had been there for

5 a while.

6 Q. Did you testify last week that he arrived after

7 you arrived?

8 A. I don't remember this, sir.

9 Q. You are saying that he had this live bomb with

10 him?

11 A. What I saw was, he was holding this bomb as if it

12 was a live bomb. He was holding it very carefully, like

13 this.

14 Q. And people moved away from the table, not knowing

15 what might be in what you thought to be a live bomb?

16 A. I can't say that they fled away out of fear, but

17 he was holding this bomb, I assumed he was the competent

18 person to hold this.

19 Q. Did he in your presence render it safe so that

20 the meeting could continue on?

21 A. What I mean by a live bomb is that as I saw it,

22 there were things attached to it. So if you wanted to blow

23 it up, you could do so.

24 Q. Like wires, is that what you saw?

25 A. I don't remember, sir.

2511

1 Q. Watches?

2 THE INTERPRETER: Could the interpreter

3 understand that?

4 Q. Wrist watches?

5 THE INTERPRETER: Could the interpreter

6 understand it as did you see watches or did you see

7 connected watches?

8 Q. Connected watches, yes.

9 A. I didn't see a watch actually connected to the

10 bomb directly, but I saw a digital watch.

11 Q. Were the caps on this bomb that he was handling

12 very, very carefully?

13 A. If I can remember right, I think it was uncapped

14 and he could show us the insides.

15 Q. He uncapped it right in the room?

16 A. To my knowledge, it was a live bomb but it was

17 uncapped so he could show us what was inside, what could be

18 connected to it to make it a live bomb.

19 Q. Was there one pipe or two that you saw in the

20 room?

21 A. I saw one with nothing inside and one with

22 something inside.

23 Q. Sir, when you were in that room, was there any

24 discussion about the Philippine Airline flight 434?

25 A. What we really talked about at that time was --

2512

1 MR. GREENFIELD: Your Honor, I asked a specific

2 question and I have learned enough Filipino that I heard

3 part of the answer already.

4 THE COURT: You did? That's nice. It was going

5 to be stricken anyway. Restate the question.

6 Martha, would you read it back.

7 (Record read)

8 THE COURT: OK. Now, we don't want to know what

9 was discussed, we want to know if there was any discussion

10 about Philippine Airline flight 434.

11 A. No, sir.

12 Q. Was there any discussion in that room with

13 respect to an explosion of the Green Belt Theater on

14 December 1, 1994?

15 A. No, sir.

16 Q. Subsequent to this meeting, did you conduct any

17 investigation with respect to the Green Belt Theater

18 explosion on December 1, 1994?

19 A. No, sir.

20 Q. With respect to Philippine Airline flight 434,

21 subsequent to January 7, 1995, did you conduct any specific

22 investigation?

23 A. The week after the 7th of January 1995, we

24 conducted some investigations regarding Philippine Airline

25 434.

2513

1 Q. Do you recall the dates that you conducted these

2 investigations?

3 A. Perhaps on the 9th after the 7th of January,

4 perhaps around that time one of those days I was able to

5 devote to investigating the Philippine airlines 434.

6 Q. Sir, when you arrived back at your offices in

7 Camp Crame on January 7, I believe you testified it was

8 about 3 p.m., is that a fair statement?

9 A. We returned there about 1 or 2 that afternoon.

10 Q. And as soon as you get back there, you begin to,

11 I think you said, study the documents you received at the

12 PSG?

13 A. Yes, sir.

14 Q. And you testified on direct examination you began

15 to compare them to documents you had previously gotten, is

16 that right?

17 A. Yes, sir.

18 Q. When did you get these documents?

19 A. For the documents that I had with me, I mean the

20 other information I have regarding other threat groups that

21 exist in our country.

22 Q. Other what?

23 A. Threat groups.

24 Q. Threat groups.

25 With respect to those documents, did you ever

2514

1 make copies of those documents and turn them over to the

2 United States government?

3 A. No, sir.

4 Q. When you got back to Camp Crame with respect to

5 the documents you received at the PSG, did you then put your

6 initials or the date on each and every one of those

7 documents?

8 A. No, sir.

9 Q. On January 7, 1995, or at any time thereafter,

10 did you send these documents to the NBI for fingerprint or

11 handwriting analysis?

12 A. No, sir.

13 Q. With respect to the study that you performed on

14 January 7, 1995, did you prepare a written report?

15 A. No, sir.

16 Q. Yes or no, sir. After January 7, 1995, did you

17 receive any other documents from any other commands within

18 the Philippine National Police?

19 THE COURT: Connected to this matter.

20 MR. GREENFIELD: Obviously connected to this

21 matter, your Honor. I am sorry, I will restate the

22 question.

23 Q. On January 7 or thereafter, did you receive any

24 other documents with respect to this case from other members

25 of the PNP?

2515

1 A. I borrowed a book from Major Phillips.

2 Q. Other than that one book that you borrowed from

3 Major Phillips, did you receive any other documents either

4 to study or to hold with respect to this case?

5 A. I also got manuals and books on bomb making from

6 Major Phillips.

7 Q. Other than that, did you receive any other

8 documents or other materials, without being specific as to

9 identifying them, with respect to this case?

10 A. I don't remember receiving any other documents.

11 Q. Sir, I think you described on direct examination

12 that you placed the laptop computer in a steel cabinet, is

13 that right?

14 A. Yes, I placed it in a steel cabinet that is about

15 five feet.

16 Q. And you also put all these documents that you

17 received at the PSG in the same cabinet?

18 A. I put it in another cabinet.

19 Q. I assume that each cabinet is locked at the end

20 of the day when you leave your room. Is that a fair

21 assumption on my part?

22 A. That cabinet is always locked, sir.

23 Q. Does anybody besides you have a key to the

24 cabinet?

25 A. No, sir.

2516

1 Q. Not even Colonel Garcia?

2 A. Yes, sir.

3 Q. Yes, sir, he does or yes, sir, he doesn't?

4 A. He doesn't have a key, sir.

5 Q. So when you are gone on vacation or come to the

6 United States, nobody can get into that cabinet?

7 A. No one could, sir, unless they destroy the whole

8 cabinet.

9 Q. And during this red alert, when you go home and

10 somebody wants to look at the computer or look at the

11 documents, they can't until you come back.

12 A. No, sir.

13 (Continued on next page)

14

15

16

17

18

19

20

21

22

23

24

25

2517

1 MR. GREENFIELD: Your Honor, would this be a good

2 time for the morning break?

3 THE COURT: Sure. OK ladies and gentlemen.

4 (Jury excused)

5 (Witness temporarily excused)

6 THE COURT: Miss Barrett, you finished up your

7 cross-examination with two obviously grossly objectionable

8 questions. I have no idea what you are doing. If you want

9 to make a political speech, you will use a forum other than

10 this courtroom. If you don't, then don't ask questions like

11 that. Ten minutes.

12 (Recess)

13 (Witness resumed)

14 (Jury present)

15 THE COURT: All right.

16 (Continued on next page)

17

18

19

20

21

22

23

24

25

2518

1 BY MR. GREENFIELD:

2 Q. Sir, there came a time in January 1995 when you

3 provided certain documents to the FBI with respect to those

4 documents taken -- withdrawn.

5 There came a time in January of '95 when you gave

6 certain documents to the FBI which you say you received at

7 the PSG on January 7, is that correct?

8 A. The documents that I had given to the FBI, the

9 date when I gave them to the FBI could be found in the

10 receipt that I made.

11 Q. Whatever the date was, you gave certain documents

12 to the FBI in 1995?

13 A. Yes, sir, I handed over documents to the FBI in

14 January of '95 for fingerprinting.

15 Q. Sir, prior to the date you handed those documents

16 over to the FBI -- yes or no -- did you give any of those

17 documents or other documents to members of the PNP?

18 A. None, sir.

19 Q. Sir, no other members of the Philippine National

20 Police ever sought to review or look at one documents that

21 you received on January 7, 1995?

22 A. In our command, the only person that I remembered

23 looking at the documents was my boss.

24 Q. Recollection aside, did you maintain a log in

25 your office as to people who had access or took these

2519

1 documents, from January 7, 1995, and until such time as they

2 were turned over to the FBI?

3 A. We didn't make a logbook, sir.

4 Q. Your recollection is that only Colonel Garcia had

5 access to these documents before they were turned over to

6 the FBI, is that correct?

7 A. It is not only not necessarily just Colonel

8 Garcia who had access to the documents in my branch.

9 Mr. Macachor and Mr. Rivel had access, too.

10 Q. Let me see if I understand this. I am not only

11 talking about your branch, I am talking about anybody in the

12 PNP. Other than Garcia, Macachor and Rivel, did anybody

13 else have access to those documents?

14 A. Are you asking me, sir, are you pertaining to

15 people outside the Intelligence Command?

16 Q. I am pertaining to people outside the

17 Intelligence Command and inside the Intelligence Command,

18 working for the PNP.

19 A. Within the Intelligence Command we were the only

20 people authorized to work with these documents. Outside the

21 Intelligence Command, no one.

22 Q. Sir, if Colonel Garcia wanted a copy of a

23 document, he would have Macachor or Rivel prepare one for

24 him or yourself?

25 A. If Colonel Garcia needed a photocopy of a

2520

1 document, I would make the copy.

2 Q. Sir, with respect to the computer, I believe it

3 is your testimony that on January 7 you get the computer at

4 the PSG, is that right?

5 A. Yes, sir.

6 Q. Were you ordered to enter into a computer and

7 browse it or did you do that of your own volition?

8 THE INTERPRETER: Could the interpreter hear that

9 again, please.

10 Q. Were you ordered to enter into the computer and

11 browse it or did you do that of your own volition?

12 A. The instruction I received was that we should

13 look into the computer for further information. I

14 instructed a subordinate who was in charge of computers to

15 do so.

16 Q. The subordinate that you instructed was Richard

17 Macachor, correct?

18 A. Yes, sir.

19 Q. What is his rank in the PNP?

20 A. He is a police officer 1.

21 Q. As I understand the ranking of the PNP, the

22 highest is the director general?

23 A. Yes, sir.

24 Q. And then the deputy director generals come next?

25 A. Yes, sir.

2521

1 Q. And then there are three levels of

2 superintendent, starting with chief, senior, and then

3 superintendent?

4 A. What would come after the deputy general would be

5 a director, and after that there would be three levels of

6 superintendents.

7 Q. And then three levels of inspectors after that?

8 A. Yes, sir.

9 Q. And then four levels of senior police officer

10 after that?

11 A. Yes, sir.

12 Q. Senior police officer 4 being the highest, senior

13 police officer 1 being the lowest?

14 A. Amongst the senior police officers, sir?

15 Q. The highest rank a senior police officer can

16 reach is 4, the lowest rank is 1.

17 A. Yes, sir.

18 Q. And then there are two levels of police officer,

19 police officer 2 and police officer 1.

20 A. There is a police officer 3, police officer 2,

21 and the lowest is a police officer 1.

22 Q. Is there anything lower in the Philippine

23 National Police than a police officer 1?

24 A. Amongst the uniform troops, that is the lowest.

25 Q. And those are military?

2522

1 THE INTERPRETER: Could the interpreter hear that

2 again, please.

3 Q. And those are military?

4 A. No, sir, we are police officers.

5 Q. Sir, you called police officer 1 Macachor down to

6 your office, and he is well versed in computers, as far as

7 you are concerned?

8 A. He is detailed to the computer section.

9 Q. The computer unit of the Philippine National

10 Police -- withdrawn.

11 Is it your testimony that Macachor is a member of

12 the Philippine National Police computer unit?

13 A. No, sir. What I mean to say is that in my branch

14 he belongs to the computer section.

15 Q. Sir, with respect to whatever findings he made on

16 January 7, did you create a report?

17 A. I made a verbal report to my boss Colonel Garcia.

18 Q. So from that I take it you didn't make a written

19 report.

20 A. I didn't make a written report regarding the

21 computer in those hours.

22 Q. Sir, a few days later, I think your testimony is,

23 Macachor is not available and you give the computer to Jingo

24 Rivel, is that right?

25 A. What I meant to say, sir, was, whenever

2523

1 Mr. Richard Macachor was not available, then I would give

2 the computer to Mr. Jingo Rivel, because he is also in the

3 computer section of my branch.

4 Q. Your direct testimony was that on the first

5 occasion when you had this computer, you gave it to Macachor

6 to browse it, isn't that right?

7 A. That night of the 7th of January 1995, I gave the

8 computer to Mr. Macachor so that he could get some

9 information from it.

10 Q. And the next time anybody looks at the computer

11 you give it to Jingo Rivel, isn't that your direct

12 testimony?

13 A. I had said earlier that the following Sunday or

14 Monday, whenever Mr. Macachor would not be available, then

15 Mr. Jingo Rivel would handle the computer.

16 Q. You have no report that indicates that, is that

17 correct?

18 A. Yes, sir.

19 Q. You created no log with respect to the use of the

20 computer, is that correct?

21 A. Yes, sir.

22 Q. And you have described those times as very

23 chaotic and busy, isn't that right?

24 A. I meant to say that on the first time, the 7th of

25 January 1995, we were not -- different groups that were

2524

1 investigated were not organized, but the following Sunday,

2 the Monday and the days that came afterwards we started to

3 get our act together.

4 Q. Sir, there came a time after Jingo Rivel looked

5 at this computer where you say you gave it to Colonel

6 Delfin.

7 A. What I remember was that that Monday evening,

8 that January, Colonel Delfin gave me the instructions that

9 he needed to borrow the computer.

10 Q. Is Colonel Delfin in New York presently?

11 A. No, sir.

12 Q. Did you have a conversation with Colonel Delfin

13 in the Philippines prior to coming here, with respect to the

14 computer?

15 A. I told him that I was leaving but we didn't talk

16 about the computer.

17 Q. Did you sit down with him in his office, say May

18 of this year, and discuss what day he may or may not have

19 taken the computer from you?

20 A. I am not sure, sir, but I don't think so. I

21 don't think we discussed the date, the day or the date when

22 he took the computer.

23 Q. Did you discuss it with Mr. Canlas?

24 A. No, sir.

25 Q. Sir, can you state that as far as you know, while

2525

1 that computer was in your possession, locked in your

2 cabinet, that no one else in the PNP had access to that

3 computer?

4 A. While that computer was in my custody and while

5 it was in the steel cabinet, no one else had access to it.

6 Q. Sir, did you order Macachor or Rivel to add

7 information or delete information from that computer?

8 A. I didn't instruct them to add or delete any

9 information.

10 Q. Do you know if in fact they did?

11 A. I don't know, sir.

12 Q. They are also, other than yourself being their

13 direct superior Colonel Garcia is also their superior, isn't

14 that correct?

15 A. Yes, sir.

16 Q. And he had access to that computer before you

17 turned it over to the FBI, didn't he?

18 A. What I know, sir, is, Colonel Garcia had that

19 computer when it was turned over to him by Colonel Delfin.

20 Aside from that, he didn't have it.

21 Q. Sir, is it your testimony that other than that

22 one occasion, that computer was never in the custody or

23 possession of Colonel Garcia?

24 A. There are no other days that they had it.

25 Q. And the same is true for anybody else in the PNP?

2526

1 A. Could you clarify, sir, what you mean? Do you

2 mean to include the times when Colonel Delfin borrowed the

3 computer from me or when Mr. Canlas did so?

4 Q. You don't know firsthand knowledge that

5 Mr. Canlas had possession of that computer, do you?

6 A. Colonel Delfin informed me that he had Mr. Canlas

7 look at it.

8 Q. So other than you being informed, that is the

9 source of your information that he had it, is that correct?

10 A. Yes, sir.

11 Q. Other than Colonel Delfin and Mr. Canlas having

12 possession for that period of time, did anybody else in the

13 PNP have possession of that computer but yourself, Jingo

14 Rivel, or Richard Macachor?

15 A. No one, sir.

16 Q. And if there are any situations where information

17 is added or deleted into the computer during the period of

18 time that it was in your possession, it had to have been

19 done by yourself, Macachor or Rivel, is that correct?

20 MR. SNELL: Objection.

21 THE COURT: Go ahead.

22 A. It is not our procedure to add or delete from

23 that information.

24 Q. That is not my question.

25 MR. GREENFIELD: May the question be read back to

2527

1 the witness, your Honor?

2 THE COURT: Sure.

3 (Record read)

4 A. While that computer was in my custody, it was

5 only the three of us who held that computer.

6 Q. Sir, there came a time when the FBI came to your

7 offices and you turned over documents to them, and that was

8 sometime in January of 1995, is that correct?

9 A. I can't remember the exact date when these

10 documents were turned over to the FBI. If I see the

11 receipt, then I would see the date.

12 MR. GREENFIELD: Your Honor, if the witness could

13 be given a copy of 3527B.

14 THE COURT: I would like to, but I don't have it.

15 MR. GREENFIELD: I will give him, if I may.

16 THE COURT: I don't care, but I don't have it.

17 Q. I show you a copy of 3527B. Would you read it to

18 yourself and see if it refreshes your recollection as to the

19 date on which you turned documents over to the FBI?

20 A. Yes, sir.

21 Q. What is that date?

22 A. The 23rd of January 1995.

23 Q. When you turned these documents over, I would

24 assume they are the documents that you say you received on

25 January 7, 1995, at the conference at the PSG, is that

2528

1 correct?

2 A. Could I see the receipt again, please? I need to

3 verify --

4 THE COURT: Yes, I have a copy of it. Here.

5 A. This item number 26, Hawley's Condensed Chemical

6 Dictionary, was an item that I borrowed from Major Phillips.

7 It did not come from the conference room of the PSG.

8 Q. So other than that one item, the rest came from

9 the conference room of the PSG?

10 A. Number 31 and the Arabic book number 23, I also

11 borrowed those items from Mr. Sonny Phillips. The rest came

12 from the PSG.

13 Q. The items that you turned over to the FBI, were

14 they all the items that you received on January 7, 1995,

15 other than those which you got from Sonny Phillips?

16 A. Yes, sir.

17 Q. Were any items withheld from the FBI on January

18 23, 1995?

19 A. There were some, sir, the computer and other

20 documents.

21 Q. Certain of the documents that were withheld, were

22 they not in your possession or were they in the possession

23 of somebody else in the PNP?

24 A. I was holding it, sir.

25 Q. And the documents that you were holding, those

2529

1 are documents allegedly seized on January 7, 995.

2 A. In my possession were the documents I got from

3 the PSG, documents I got from Mr. Sonny Phillips, and the

4 computer.

5 Q. These people from the FBI were there to test the

6 documents for fingerprints, is that a fair statement?

7 A. What I understood was, the items that were turned

8 over to them on the 23rd of January 1995 were to be tested

9 for fingerprints.

10 Q. Yet you are saying that you withheld certain

11 documents from the FBI on January 23, 1995?

12 A. I did not withhold those other items. They chose

13 these particular items to take with them for fingerprinting.

14 Q. But all the items that you had in your steel

15 cabinet, other than being the computer -- withdrawn.

16 All the documents you had in your steel cabinet,

17 other than those few turned over by Sonny Phillips, were

18 allegedly seized on January 7, 1995, weren't they?

19 A. What I know is that I got certain items from the

20 PSG and I borrowed certain items from Major Phillips. I

21 don't know about any other items that they got on the 7th of

22 January 1995.

23 Q. Sir, among the items that you turned over on

24 January 23, 1995, did you turn over the EZ phone bill?

25 A. Could you repeat that question, sir.

2530

1 MR. GREENFIELD: Would you read it back.

2 (Record read)

3 A. If I read this document right, the EZ phone bill

4 is not listed on this paper, so I didn't turn it over that

5 day.

6 Q. Sir, do you know an individual in the

7 Intelligence Command by the name of Monteagudo, if I am

8 pronouncing it correctly?

9 A. Yes, sir.

10 Q. What is his rank?

11 A. He is a superintendent.

12 Q. Did he have access to these documents?

13 A. I was the person that had responsibility over the

14 documents.

15 Q. I didn't ask you that. I asked you if he had

16 access to it?

17 A. He may have had a chance when he asked me a

18 question once and he looked at one document.

19 Q. Do you recall the date?

20 A. In January.

21 Q. Besides Monteagudo asking to see a document and

22 besides Garcia seeing documents, who else saw documents in

23 January 1995 within the PNP?

24 A. These were the people that I remember verifying

25 these documents.

2531

1 Q. Sir, on January 7, 1995, did you go to 711

2 Quirino avenue, the Dona Josefa building?

3 A. No, sir.

4 Q. After January 7, 1995, did you go to the Dona

5 Josefa building and interview any of the employees there?

6 A. No, sir.

7 Q. In January of 1995, did you review any business

8 documents created at the Dona Josefa, like telephone logs or

9 guard logs?

10 A. I remembered looking at telephone documents but I

11 don't remember looking at the guard books logbook.

12 Q. And you remember looking at these telephone

13 documents in January 1995?

14 A. That is possible, sir.

15 Q. And you took possession of them in January of

16 1995?

17 A. No, sir.

18 Q. Did you ever take possession of them?

19 A. I don't remember, sir.

20 Q. Did you make copies of them?

21 A. I don't remember, sir.

22 Q. Where did you see them?

23 A. If I remember, sir, I saw it at the Intelligence

24 Command.

25 Q. Who gave them to you or showed them to you?

2532

1 A. If I remember right, it was at the office of

2 Colonel Garcia.

3 Q. Did you read these telephone records or logs?

4 A. I saw and read the telephone records in passing.

5 Q. Sir, on January 7 or after January 7 of 1995, did

6 you participate in any searches in or around Manila with

7 respect to this case?

8 A. No, sir.

9 Q. Sir, do you learn how many search warrants were

10 executed in the Dona Josefa on January 7, 1995?

11 A. I don't know, sir.

12 Q. Sir, I think you testified last week that it was

13 a standard operating procedure of the PNP to respect the

14 human rights of a suspect, is that right?

15 A. Yes, sir.

16 Q. And I think you also said, and correct me if I am

17 wrong, it is not in fashion to inflict pain on a person to

18 get information, is that correct?

19 A. Yes, sir.

20 Q. And then you also said that inflicting pain was a

21 barbaric way of an older life, is that right?

22 A. Yes, sir.

23 Q. That you never had a chance to indulge in these

24 barbaric ways or perform such barbaric conduct, is that

25 right?

2533

1 A. Yes, sir.

2 Q. That you have a new way of convincing a person to

3 talk without using brute force, and I think you said that

4 last week, isn't that right?

5 A. Yes, sir.

6 Q. Just what are the old barbaric ways that were

7 used to get people to talk?

8 MR. SNELL: Objection.

9 THE COURT: Sustained.

10 Q. Sir, when you say you convince people, do you

11 appeal to their common sense when you convince them?

12 A. To my knowledge, every human being knows what is

13 a basic right or wrong. That is universal to all human

14 beings. Both parties, myself and the suspect, will agree on

15 what is right and wrong because we are basic human beings.

16 If this person knew that he was wrong, then he feels guilt

17 for what is wrong, and then I could attack that wrong. I

18 could convince him then -- rather I could appeal to his

19 sense of what is wrong or right.

20 So to my knowledge, he will tell the truth.

21 Q. Sir, does the Constitution or the law of the

22 Philippines require before you try to convince somebody to

23 talk with you that you should advise them of their right to

24 remain silent?

25 MR. SNELL: Objection.

2534

1 THE COURT: I will permit it. Go ahead.

2 A. We do have that provision, so you could not force

3 a person to say something.

4 Q. You have to advise him of his right to remain

5 silent, is that what you are saying?

6 A. It is their right, sir.

7 Q. Does the law of the Philippines require that an

8 individual have an attorney present before you question him?

9 A. That is the law.

10 Q. On the tape we heard the other day, did you hear

11 anybody advising that man on the tape that he had a right to

12 remain silent?

13 A. I didn't hear anything like that from the tape

14 that we heard.

15 Q. Did you tell him he had a right to remain silent?

16 A. I didn't tell him that, sir.

17 Q. Did you tell him he had a right to an attorney?

18 A. I did not personally advise him that in those

19 days.

20 Q. Sir, is there any time requirement that you have

21 to bring a person before a judge after they have been

22 arrested?

23 MR. SNELL: Objection.

24 THE COURT: No, I will permit it.

25 A. There is, sir.

2535

1 Q. Is that like two months or three months?

2 A. No, sir.

3 Q. What is the maximum time you can hold somebody

4 before they must be charged before a judge?

5 A. That depends on the nature of the crime or the

6 criminal act. If the matter involves national security,

7 then that can be waived.

8 Q. Is that in the Constitution of the Philippines?

9 A. No, sir, it is not written in the Constitution of

10 the Philippines, but in my opinion, when national security

11 is involved, such matters are in other hands.

12 Q. And you can engage in any type of conduct you

13 want to get the results you wish. Is that what you are

14 saying?

15 THE INTERPRETER: Could the interpreter hear that

16 again, please.

17 MR. GREENFIELD: May it be read to the witness.

18 (Record read)

19 A. That is not right, sir.

20 Q. Sir, one last question -- if the court is

21 preparing for the break, I would like to ask one last

22 question or two.

23 Is there a maximum time limit under the law of

24 the Philippines that you can hold somebody without bringing

25 them before a judge?

2536

1 MR. SNELL: Objection.

2 THE COURT: No, I will permit it.

3 A. Could you repeat that question, sir.

4 Q. Is there a maximum time limit you can hold an

5 individual without bringing him before a judge?

6 A. We follow a certain procedure regarding

7 detention.

8 Q. What is the maximum period you can hold somebody

9 before you bring them before a judge and charge them with a

10 crime?

11 A. I am not sure regarding how much time we are

12 allowed before we bring a person in front of the judge.

13 Q. Doesn't the law of the Philippines require you to

14 bring a person before a judge no later than 36 hours and

15 after 12 hours of arrest?

16 A. If the information you are holding is correct,

17 then perhaps that is the time that is allowed.

18 Q. You are a Philippine police officer, aren't you?

19 A. Yes, sir. Prosecution, regarding prosecution, an

20 appearance in front of the court, that is not a

21 responsibility. That is not the branch's main

22 responsibility.

23 Q. The Intelligence Command is outside the scope of

24 the Constitution of the Philippines, is that what you are

25 saying?

2537

1 A. The Intelligence Command is still within the law

2 of the land. This is work that does not fall within the

3 jurisdiction of my branch.

4 Q. An arrest, an arraignment, bail do not fall

5 within the jurisdiction of your command?

6 A. My explanation to that is this, sir: Our unit

7 does not concern itself with those matters and. In our

8 country, you yourself can perform a citizen's arrest. That

9 is possible. The work of the intelligence unit is very,

10 very different from the work of the local police on the

11 street level. That police officer could arrest and bring a

12 person to the precinct. We don't do that.

13 (Continued on next page)

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18

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20

21

22

23

24

25

2538

1 Q. You just put them in abandoned buildings, is that

2 right?

3 MR. SNELL: Objection.

4 THE COURT: Sustained.

5 MR. GREENFIELD: Your Honor, I will continue

6 after lunch.

7 THE COURT: All right, ladies and gentlemen, we

8 will take our lunch break now.

9 (Jury excused)

10 THE COURT: 2:00.

11 (Witness excused)

12 THE COURT: How much longer?

13 MR. GREENFIELD: Fifteen, 20 minutes.

14 (Luncheon recess)

15

16

17

18

19

20

21

22

23

24

25

2539

1 A F T E R N O O N S E S S I O N

2 2:00 p.m.

3 (In open court; jury not present)

4 MR. KULCSAR: Unaccustomed as I am to public

5 speaking, I had discussed with Mr. Snell before or at the

6 break with respect to the next witness the government

7 anticipate calling, Ms. Horvath, whose examination on direct

8 I understand will be limited to certain areas of what she

9 did.

10 ALBERT I. D. FERRO,

11 Resumed, through the interpreter.

12 Mr. Yousef has requested that the computer be

13 hooked up in such a manner that it's accessible and usable

14 and functional before the jury with respect to areas of

15 cross-examination, and apparently that's a problem. Should

16 we finish with this witness, and we can discuss it then,

17 your Honor?

18 THE COURT: Sure, fine.

19 MR. SNELL: Fine by me.

20 THE COURT: We'll take it up right after this

21 witness: At some place the record should reflect we're

22 marking various documents turned over by Mr. Greenfield

23 today as Court's exhibits 2001.

24 (Court Exhibit 2001 marked)

25 (Jury present)

2540

1 You guys I see some of you carrying little cups

2 of water out. I thought I tried to get bottles of water for

3 you. Did they show up?

4 JUROR NO. 1: Yes.

5 THE COURT: Okay, fine. One of the jobs of the

6 district judge is taking care of such things, bottled water,

7 so on and so forth. Somebody has got to do it. Absolutely.

8 CROSS-EXAMINATION(Continued)

9 BY MR. GREENFIELD:

10 Q. Sir, it's your testimony that aside from yourself

11 eight or nine others questioned the individual on January 7,

12 1995; is that correct?

13 A. Yes, sir, that's my approximate.

14 Q. And this was done in the offices of the

15 intelligence command?

16 A. Yes, in the interview room of the intelligence

17 command.

18 Q. Well, the interview room or the room in the

19 burned-out building?

20 A. Yes, it was conducted in the interview room in

21 this partly burned building.

22 Q. Now, sir, were all of the people who were

23 questioning members of the intelligence command?

24 A. Yes, I recall that they're all from IC, from

25 intelligence command.

2541

1 Q. Well, did you not testify in this trial last week

2 that they were mostly from the intelligence command?

3 A. Yes, the majority of the people were from IC.

4 Q. Now, of the people who were from the IC, what are

5 their identities?

6 A. I don't remember all of them because I didn't see

7 them all in those hours.

8 Q. These are people you work with on a daily basis,

9 isn't that right?

10 A. My particular group, the SIG, is one group

11 amongst all these other groups within intelligence command.

12 Q. And you don't know the identities of anybody else

13 in the intelligence command but the people in your group?

14 A. What I mean to say, sir, is that all of these,

15 most of these other people are with the IC, but they're not

16 with SIG, my particular group. They have their own offices.

17 They have their own duties.

18 Q. And prior to January 7, 1995, you didn't know the

19 identity of any of those people?

20 A. I'd like to repeat my answer, sir. I know some

21 of them and the others I don't remember.

22 Q. The names of the people you know, what are they?

23 A. I remember Col. Garcia, Lt. Serrano. So far

24 that's all I can recall. And Col. Delfin.

25 Q. And the others from the other commands, did you

2542

1 know their identities?

2 A. I remember Col. Fernandez.

3 Q. What command is he attached to?

4 A. He's with DI.

5 Q. DI. What is DI?

6 A. He's with the directorate for intelligence.

7 Q. Was Mr. Monteagudo there -- withdrawn. Was

8 Superintendent Monteagudo there?

9 A. He may have been there, sir.

10 Q. Well, you know him well, don't you?

11 A. I do know him, but I didn't see him interrogating

12 this person so I can't say that he was actually part of the

13 interrogation.

14 Q. Did you see him the night of January 7th?

15 A. Yes, sir.

16 Q. Did you see him in the partially burned-out

17 building?

18 A. As I had mentioned in my testimony when I go

19 there to the interview room it's usually when there are no

20 other, no other personnel in there. I didn't see him go

21 inside that room. All I know is he was within the vicinity

22 of the intelligence command.

23 Q. Sir, wearing a blindfold during the

24 questioning -- withdrawn.

25 Having an individual wear a blindfold during the

2543

1 questioning, is that one of the ways that you use to

2 convince the individual to answer questions?

3 A. When I say that we try to convince a person to

4 cooperate with us, it doesn't mean that we have to, that

5 that is done by blindfolding a person. It is part of our

6 procedure to blindfold a suspect, especially one whose

7 status is that of a high-risk personality. We would like to

8 keep interrogators' identity safe.

9 Q. Sir, is it the usual course in the Philippines

10 when questioning an individual to have him them wear

11 blindfolds?

12 A. No, sir. This is not standard operating

13 procedure in our country to blindfold a suspect during

14 questioning. This person was a high-level threat as far as

15 we could determine, and we had to keep the security of the

16 interrogators. As far as we were concerned he was suspected

17 of being an international terrorist.

18 Q. Sir, would it also keep your identity from the

19 individual if he was to accuse you of misconduct during the

20 course of the questioning?

21 MR. SNELL: Objection.

22 THE COURT: Sustained.

23 Q. Sir, it's clear that when an individual wears a

24 blindfold, for whatever reason, he can not learn your

25 identity?

2544

1 MR. SNELL: Objection.

2 THE COURT: Yes, sustained.

3 Q. Now, sir, the tape that was allegedly made

4 January 7, 1995, was a heading of January 7th placed on the

5 tape itself?

6 A. What do you mean, sir, that it's written on the

7 tape, there are markings, physical markings on the tape it

8 was made on the 7 January, 1995?

9 Q. Not what's written on the tape. Before the

10 questioning begins, does anybody from the Philippine

11 National Police say at the beginning of the tape: "This is

12 January 7, 1995. We are about to question the following

13 individual"?

14 A. I don't know about that, sir. As I had mentioned

15 I wasn't there so I don't know if that was mentioned at the

16 beginning of the tape.

17 Q. You've listened to the tape, have you not?

18 A. Yes, sir.

19 Q. It's not there, isn't that true?

20 A. You're right, sir.

21 Q. Now, sir, after January 7, 1995, did you question

22 any other individuals with respect to this case?

23 A. To my knowledge, sir, I did not interrogate

24 anyone else.

25 MR. GREENFIELD: I have further questions.

2545

1 THE COURT: Any redirect?

2 MR. SNELL: None, your Honor.

3 THE COURT: All right, step down.

4 (Witness and interpreter excused)

5 THE COURT: Next witness.

6 MR. SNELL: Mary Horvath.

7 THE COURT: Is this the witness that I heard

8 about just before? Okay, ladies and gentlemen, I'm going to

9 ask you to step out for a couple of minutes and we'll find

10 out what's going on.

11 (Jury not present)

12 THE COURT: Who is going to handle the witness,

13 which one of you guys?

14 MR. SNELL: I am, your Honor.

15 THE COURT: How long is direct of this witness?

16 MR. SNELL: My guess is about 20 minutes to half

17 an hour tops.

18 THE COURT: Are there any other witnesses in

19 line?

20 MR. SNELL: Yes, your Honor. The next witness is

21 David Swartzendruber. I think the 3500 material has been

22 distributed for him as well. My mistake.

23 THE COURT: I see Mary Horvath has FBI laboratory

24 reports; is that correct?

25 MR. SNELL: Yes, your Honor, you're right.

2546

1 THE COURT: David Swartzendruber is from

2 Microsoft, so he's going to be using this thing, also, I

3 gather?

4 MR. SNELL: Yes, your Honor.

5 MR. KULCSAR: Your Honor, I may have part of an

6 answer to that that may make it easier for the Court, that's

7 why I interrupted, your Honor, I apologize. I understand

8 that from Ms. Horvath that it will not be necessary to hook

9 up the equipment as such before Ms. Horvath testifies to use

10 it during her testimony, so that part of the issue is

11 resolved. That's why I take the liberty of interrupting.

12 But on the second part there is a request, and

13 again, this is, I have a slight difference of recollection

14 with Mr. Snell. But it is my recollection I had said to

15 Mr. Snell a few weeks ago that the only request I had

16 concerning advance notice of witnesses within the guidelines

17 that we've been operating under is when they had an expert

18 testify that I be given sufficient notice to have our

19 experts available in the courtroom, since all of our

20 experts, except for one come, from out of state.

21 I'm not going to speak for Mr. Snell, but

22 Mr. Snell's recollection is that I didn't advise him of that

23 specific request. In any event, given the circumstances of

24 the 3500 material we've received today for the first time

25 for Ms. Horvath which contain handwritten notes of hers in

2547

1 computerese, the request is made that we be allowed to defer

2 cross-examination of her until tomorrow morning. I

3 telephoned our expert last night. Mr. Snell and I spoke

4 over the weekend. And he is available and has made

5 arrangements to fly in to New York --

6 THE COURT: He will be in tomorrow, is what

7 you're telling me?

8 MR. KULCSAR: He'll here before 9 o'clock in the

9 morning.

10 THE COURT: All right. You've got twenty

11 minutes.

12 MR. SNELL: Yes, your Honor. Just so the record

13 is clear on this. All counsel have had Ms. Horvath's

14 reports for many months now, and she is not being called by

15 the government --

16 THE COURT: I assumed that.

17 MR. SNELL: -- she is not being called by the

18 government to give expert testimony here.

19 THE COURT: What is she being called for?

20 MR. SNELL: She is being called to testify about

21 her involvement copying the hard drive computer initially in

22 Manilla, and then copying it again when the computer itself

23 was turned over to the FBI in April of '95.

24 THE COURT: She's a chain of custody person?

25 MR. SNELL: Yes, your Honor.

2548

1 MR. KULCSAR: That may well be, but I think her

2 handwritten notes go beyond simple chain of custody.

3 THE COURT: It may, but maybe they're not going

4 to put her in for that.

5 MR. KULCSAR: I would suggest or request since

6 it's obvious --

7 THE COURT: We'll hear the woman's direct. If

8 all she is doing is telling us that she, you know, punched a

9 couple of buttons in and made copies and did things like

10 that, I would assume this other guy Swartzendruber -- all

11 I'm doing is looking at his curriculum vitae. I love that

12 word -- it looks like he's the hotshot on computers. He

13 presently works for Microsoft Corporation in Redmond,

14 Washington, I guess it is. So my guess is he's going to be

15 your big computer testify.

16 MR. SNELL: Exactly, your Honor. In fact, we're

17 hoping to do a demonstration of the computer through

18 Mr. Swartzendruber's testimony.

19 MR. KULCSAR: But in any event, my understanding

20 is from the government's position before the Court that

21 Ms. Horvath will be explaining this followed by

22 Mr. Swartzendruber. It's hard for German people to say

23 German words I think, your Honor. I apologize.

24 But in any event we'd like to have our expert

25 available for him. So the only downside would be that --

2549

1 withdrawn down side. What we'd like to have available to us

2 is Ms. Horvath with respect to the 3500 material, the

3 handwritten notations,

4 THE COURT: I hear what you are saying, but --

5 MR. KULCSAR: For example, your Honor, let me be

6 more specific --

7 THE COURT: Is Ms. Horvath an FBI Agent?

8 MR. SNELL: She's an employee of the FBI. I

9 don't think she's actually an agent.

10 MR. KULCSAR: She made copies as best I

11 understand it, as I can glean it.

12 THE COURT: Let her come out and make her pitch

13 about this, and then we'll find out. If that's all there is

14 to it, you know, why the blazes bother going into something

15 that they are not going into, unless you like that? I don't

16 know.

17 MR. KULCSAR: I think my lunchtime conversation

18 with the computer expert he'd like to understand what she

19 says with respect to things like her notes on 3532F, booted

20 laptop, et cetera, which means little, if anything, to me.

21 So that's I guess we can wait until she finishes and then

22 address it, your Honor.

23 THE COURT: You're not that old. All right. I

24 don't know. That's not an "all right." Let me hear the

25 woman's testimony.

2550

1 MR. KULCSAR: Thank you, your Honor.

2 THE COURT: I don't know. Are the rest of you

3 guys interested in cross-examining Mary Horvath?

4 MR. GREENFIELD: Your Honor, reading the reports

5 it seems from 3532A and B if these are her reports and it

6 seems like she did some testing.

7 THE COURT: I have no doubt about that. That I

8 had no doubt about, but I don't think they're introducing it

9 for that. Maybe they will. That's why I'm waiting to

10 listen.

11 MR. GREENFIELD: If she did, it may be an area of

12 examination.

13 THE COURT: If she's testifying as to that. If

14 she is not testifying, unless you guys are interested in

15 filling in the blanks that the government is leaving. I

16 assume Paul went to get somebody.

17 MR. SNELL: I believe she's back there, your

18 Honor.

19 THE COURT: Wherever "there" is. Do we need an

20 interpreter here?

21 MR. SNELL: I don't think so, your Honor. At

22 least not Taglog.

23 (Witness present)

24 THE COURT: Sit down, young lady.

25 THE WITNESS: How are you?

2551

1 THE COURT: Good.

2 MR. SNELL: Your Honor, if I could suggest that

3 maybe she move the microphone to the front.

4 THE COURT: Now, Mary, I want you to know that

5 they've done this with every witness. They tried to accuse

6 them of breaking the furniture, but you've finally done it.

7 THE WITNESS: It's not broken.

8 (Continued on next page)

9

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25

2552

1 (Jury present)

2 MARY HORVATH,

3 called by the government as a witness,

4 having been duly sworn, testified as follows:

5 DIRECT EXAMINATION

6 BY MR. SNELL:

7 Q. Ms. Horvath, how are you employed?

8 A. I work for the Federal Bureau of Investigation.

9 Q. And what is your position with the FBI?

10 A. I'm a computer specialist with the computer

11 analysis response team down the laboratory at Washington,

12 D.C.

13 Q. How long have you worked down the lab in

14 Washington?

15 A. Almost three years.

16 Q. Could you tell us a little bit about your

17 background with respect to computers?

18 A. I have a bachelor's degree with a double major in

19 math and computer science, and I'm currently working on my

20 masters in forensic science.

21 Q. What generally are your duties down at the lab in

22 Washington? Could you summarize that for us?

23 A. I perform computer examinations on any evidence

24 that's related to computer material and data.

25 Q. I'd like to direct your attention back to January

2553

1 20, 1995. On or about that date did you get an assignment?

2 A. Yes, I did.

3 Q. What were you asked to do?

4 A. I was asked to travel to Manilla in the

5 Philippines to examine a computer laptop that had been

6 seized from an apartment.

7 Q. Did you go to Manilla?

8 A. Yes, I did.

9 Q. And do you remember what day you arrived?

10 A. I arrived on Sunday, the 22nd, January 22nd.

11 Q. After your arrival in Manilla did you get the

12 chance to examine a laptop computer?

13 A. Yes, I did. I examined it on Monday, January

14 23rd.

15 Q. Where did you see this laptop?

16 A. I saw the laptop at the offices, one of the

17 offices of the PNP.

18 Q. Is that PNP, Philippine National Police?

19 A. Yes, it is.

20 Q. And could you describe the laptop that you were

21 shown.

22 THE COURT: Do you remember which office it was?

23 THE WITNESS: No, sir, I don't.

24 THE COURT: Okay.

25 A. The laptop was a Toshiba model. It was a grayish

2554

1 in color, small laptop portable.

2 MR. SNELL: Your Honor, could the witness please

3 be shown Government Exhibit 301 in evidence?

4 Ms. Horvath, will you please take a look at that

5 and tell us if you recognize it?

6 A. Yes, I do.

7 Q. What do you recognize it to be?

8 A. It appears to be the same laptop that I examined

9 in Manilla.

10 Q. Do you remember who showed you the laptop?

11 A. I don't remember many of the personnel that were

12 there. There's only two of the PNP officers that I do

13 remember and I'm not sure which of the two handed it to me.

14 Q. Now, what did you do --

15 THE COURT: Do you know a name for them, either

16 one?

17 THE WITNESS: The two first names are the only

18 names I remember one was Burt and one was Alex.

19 Q. What did you do after you were shown the laptop?

20 What's the first thing you did?

21 A. The first thing we do, I had brought an

22 international converter with me because I wasn't sure the

23 power source that it required, but upon examining any

24 computer it's procedure for us to supply our own bootable

25 diskette which is a DOS diskette that we use in the floppy

2555

1 drive of the computer, and powered it on, and upon the

2 powering on of the computer it reads from the floppy

3 diskette a write blocker which prevents us from doing any

4 modifications to the hard drive at all.

5 Q. What is the hard drive? Could you just define

6 that for us?

7 A. The hard drive is an internal storage within the

8 laptop that can hold multiple, multi pieces of data

9 depending on the size of the hard drive.

10 Q. Now, after you installed the power supply and

11 used your bootable diskette --

12 A. Yes.

13 Q. -- what did you see?

14 THE COURT: Look, I know that you and many people

15 of your age grew up with computers, so on and so forth. But

16 there are a couple of old duffers in this courtroom, mainly

17 me, okay? The diskette is that floppy disc that you stick

18 into it the 3 by 5 or is it the --

19 THE WITNESS: It's called a three and a half inch

20 diskette because it's approximately three and a half by

21 three and a half inches.

22 THE COURT: That you stick in there, right?

23 THE WITNESS: You stick in this A drive here,

24 this floppy drive.

25 THE COURT: That's in the front on this

2556

1 particular model?

2 THE WITNESS: Correct.

3 THE COURT: Okay. Now, you said it was bootable

4 which means what? That this would come up, the disc would

5 come up first, is that what it is?

6 THE WITNESS: Yes, a typical computer if it's set

7 up in normal operation will typically first look to see if

8 there's any diskette within the A drive. If it's not there

9 it will then begin booting up, a process that is stored on

10 the internal drive. Because I put a bootable floppy

11 diskette within the A drive it will boot there first

12 circumventing the hard drive.

13 Bootable means that it contains an operating

14 system which the mechanic of the laptop will understand and

15 know how to operate so that this comes up into a working

16 format for a user.

17 THE COURT: During your testimony do me a favor,

18 okay? A million years ago when I was young, I met a guy who

19 was a Chief Judge, now retired Chief Judge on the Court of

20 Appeals for the Second Judicial Circuit, perhaps the

21 greatest Judge in United States history, a man by the name

22 of Learned Hand. Learned told me to please, he said, for

23 judges, put it in Mother Goose language, okay? Many times

24 that way they will understand it, indicating that was the

25 only way he understood things. Well, not quite. But it

2557

1 works particularly for me, and on this stuff that I know I

2 have no real background about, do me a favor, in your

3 testimony make it in Mother Goose language?

4 THE WITNESS: Yes, sir, I'll try.

5 THE COURT: Okay, thanks.

6 Q. Ms. Horvath, what did you see after you put the

7 diskette into the, you said the A drive of the laptop?

8 A. Yes, into the floppy drive. What I saw was the

9 basic operating system at which point I can enter user

10 commands and tell the machine what I would like it to do.

11 It would normally, based on looking at what the contents of

12 the hard drive, it would normally, if I turned it on without

13 a diskette within the floppy drive, it would normally run a

14 program called Windows automatically, but because I

15 circumvented that process I'm at what is called a command

16 prompt level where I can talk one on one basically to the

17 machine and have it do what I would like it to do.

18 Q. Did you get the machine to do anything at this

19 point?

20 A. Yes, I created three backups of the machine.

21 Q. What do you mean by a backup?

22 A. Particularly I created two backups that we refer

23 to as an image backup. In other words, it is a complete

24 photograph of the entire contents of the hard drive from the

25 very beginning to the very end, regardless of the contents

2558

1 in between. The third backup that I performed is what we

2 call a logical backup, whereby all I did is just take the,

3 just the active files that you as a user and any common user

4 can see, and just copied those off to a separate tape.

5 THE COURT: Okay. Now you said you copied them

6 off to a tape.

7 THE WITNESS: Yes, sir.

8 THE COURT: You mean the same kind of type that

9 we stick in a tape player?

10 THE WITNESS: No.

11 THE COURT: Generally?

12 THE WITNESS: Generally the type tapes I used are

13 called DAT tapes. They're little tiny cartridges smaller

14 than a cassette, and they're hold a wealth of information.

15 They can hold many times this size of a laptop.

16 THE COURT: Many times. Okay. Somehow or

17 another how do you get to the C hookup your tape drive and

18 this thing? Is there some kind of a port?

19 THE WITNESS: Yes, sir.

20 THE COURT: A plug-in they call a port, because

21 that's where the hole is.

22 THE WITNESS: Yes, on the back of this computer

23 is a parallel port and the specific tape drive that I used

24 is a parallel port tape drive whereby I can connect with a

25 wire directly from the computer to my tape drive and the

2559

1 software is what handles the communications between the two.

2 THE COURT: And your image drive is a complete

3 duplication of all the little 1s and zeros that are in that

4 piece.

5 THE WITNESS: Yes, sir, completely from beginning

6 to end.

7 THE COURT: All right, go ahead.

8 Q. You just referred to your tape drive. Is that

9 another piece of equipment?

10 A. Yes, it is. It was a piece of equipment that I

11 carried with me from the laboratory.

12 Q. And what was the function of that piece of

13 equipment?

14 A. Similar to a cassette tape drive it enabled me to

15 copy the data from the hard drive, and it would write it to

16 this particular little tape cartridge.

17 Q. How many of these little tape cartridges did you

18 end up with while you were in this process?

19 A. While in Manilla I used three tape cartridges,

20 one for each specific back up.

21 Q. About how long did the whole procedure take you

22 to do the three backup versions of the computer?

23 A. I would say approximately between two and three

24 hours. Each backup took about 45 minutes a piece.

25 Q. After you finished the backing-up process did you

2560

1 do anything else with respect to the computer?

2 A. Since I still had time to look at the computer,

3 myself and Special Agent Pellegrino did a cursory exam of

4 the computer whereby I load in some software through the

5 floppy diskette drive which is what we call a viewer which

6 allows me to see different kinds of files in different

7 formats, used the viewer, and just did a cursory exam of the

8 files on the computer.

9 Q. Now, by inserting this software would that affect

10 the contents of the hard drive of the laptop at all?

11 A. No, it wouldn't, because as I previously

12 specified when I used the bootable diskette I put a hard

13 drive write blocker that loaded first, and that was our

14 first and primary step that we do which prevents any

15 writings that may take place between me and the hard drive.

16 THE COURT: Oh, when you say "write blocker"

17 you're talking about W-R-I-T-E, not R-I-G-H-T?

18 THE WITNESS: Correct.

19 THE COURT: Okay.

20 Q. And when you inserted the viewing or viewer

21 software --

22 A. Yes.

23 Q. -- were you able to look at any files on the

24 computer?

25 A. Yes, I can look at all of them.

2561

1 Q. Do you remember seeing any files in particular?

2 A. Yes, I do.

3 Q. Do you remember the names of any of the files

4 that you saw?

5 A. A few of the files were temporary files created

6 by Microsoft write, but a couple of files were text files.

7 One was called OBAID.TXT, and another one was ZYID.TXT I

8 believe.

9 Q. Do you remember how those are spelled, the names?

10 A. OBAID was OBAID period TXT, and ZYID I believe

11 was ZYID dot TXT.

12 THE COURT: Did you ever see those files before?

13 THE WITNESS: Prior to that day, no.

14 THE COURT: Okay. That's not like Windows?

15 THE WITNESS: Correct, those are files that

16 somebody created.

17 Q. You mentioned something called the temporary file

18 created by Microsoft Write; is that correct?

19 A. Correct.

20 Q. Can you tell us what that is?

21 A. In the process of running Microsoft Write for

22 basic handling purposes it will create temporary files where

23 it will temporarily save data until you as a user decide to

24 store it somewhere else permanently or erase this. These

25 temporary files are created in the context of Microsoft

2562

1 Write.

2 THE COURT: Hold on. Let's not leave that.

3 If I got the computer on and I understand the

4 word not type, it's input, is that right? Input a letter

5 into it, have it print out, and then decide I don't want to

6 keep that on my computer, what happens to that data? Is

7 that a temporary file like you're talking about?

8 THE WITNESS: A temporary file would exist. It

9 depends on what software you used the type.

10 THE COURT: I wouldn't know. Tell me.

11 THE WITNESS: Some pieces of software create

12 temporary files and some pieces don't.

13 THE COURT: Okay. This one you say did create a

14 temporary software?

15 THE WITNESS: Yes it does. As a habit it does.

16 THE COURT: As a habit?

17 THE WITNESS: Yes.

18 THE COURT: After I print out the stuff and I

19 don't particularly care for that thing to be floating around

20 my computer, what happens to it? Does it disappear?

21 THE WITNESS: Well, temporary files are typically

22 cleaned up afterwards by the software as a clean-up process

23 automatically. Usually, typically when temporary files are

24 stored on the hard drive it's usually because you

25 erroneously turned off the computer without quitting the

2563

1 software properly, you performed a function that locked up

2 the computer in this process, and therefore didn't have a

3 chance to clean up the temporary files before you quit it.

4 THE COURT: Okay. That's the place where all the

5 files when I turned off the computer, everything goes?

6 THE WITNESS: Yes.

7 THE COURT: I thought it was always to computer

8 heaven, is it?

9 THE WITNESS: No, sir.

10 THE COURT: It goes someplace.

11 THE WITNESS: It goes someplace.

12 THE COURT: Go ahead.

13 Q. After you finished your work in Manilla with this

14 laptop what did you do with the laptop?

15 A. The laptop was returned to the PNP officials.

16 Actually, it never left their sight.

17 Q. Did there come a time when you saw the laptop

18 again?

19 A. Yes. In April of '95 it was delivered from

20 Manilla to the local offices here in New York, the FBI

21 offices, whereby I traveled and picked it up late

22 mid-morning. I forget the date, specific date.

23 Q. After you picked it up what did you do with it?

24 A. I personally carried it back at the laboratory in

25 Washington, D. C.

2564

1 Q. And what happened when you got back to the lab

2 with the computer?

3 A. I again went through the same process with the

4 computer, whereby I booted it with a bootable diskette. I

5 protected the hard drive using the write blocker and I

6 created another backup.

7 Q. Did you have a chance to compare the backup that

8 you created in Washington with the backup that you created

9 in Manilla?

10 A. Yes. I compared the contents of both backups.

11 First of all, I compared the active files which are the

12 logical files that a user can see actively on the computer,

13 and they corresponded exactly. The only differences that

14 occurred between the backups in Manilla and the backup made

15 in Washington, D.C. were the existence of some erased

16 information.

17 Q. After you made the backup tape in Washington did

18 you make additional copies of those tapes?

19 A. Yes, I did.

20 MR. SNELL: Your Honor, at this time could the

21 witness please be shown what has been marked Government

22 Exhibit 770 and 771 for identification.

23 Q. Ms. Horvath, do you recognize those?

24 A. Yes, I do.

25 Q. What are they?

2565

1 A. This first tape labeled snapback image of Q1

2 original laboratory was the backup that I created of the

3 laptop when I received it at the laboratory in April of '95.

4 This second tape is one of a couple of tapes that I created

5 which is also an image backup of the laptop that I created

6 upon your request.

7 Q. Is there any difference between 770 and 717, to

8 your knowledge, as to their contents?

9 A. No, sir.

10 MR. KULCSAR: Could we have the dates of 771,

11 your Honor?

12 THE COURT: Can you give us the date?

13 THE WITNESS: It would be in my notes as to the

14 date that I created them as to the exact date.

15 (Handed to witness)

16 MR. SNELL: 3532B, your Honor.

17 A. Well, it's not contained on this page, but the

18 first backup which would have been performed on or about

19 April 19th, between April 12th and April 19th. The second

20 tape I have as being created on March 1st of '96 I believe.

21 THE COURT: Well, when you say the first and

22 second, we're talking about which and which?

23 THE WITNESS: The first is this one, which is

24 labeled original at laboratory.

25 THE COURT: That is marked Government Exhibit

2566

1 771?

2 THE WITNESS: Yes, sir. Government Exhibit 770

3 would have been on the March date of '96.

4 MR. SNELL: Your Honor, the government offers

5 exhibit 7706 and 771.

6 (Government's Exhibits 770 and 771 received in

7 evidence)

8 MR. SNELL: I have no further questions. Could

9 we pass the exhibits to the jurors.

10 THE COURT: Those little tapes? Ladies and

11 gentlemen, take a look at them from here. You think you're

12 going to get anything off these? Mr. Yousef, do you expect

13 a long cross-examination for this young lady?

14 DEFENDANT YOUSEF: No, your Honor.

15 CROSS-EXAMINATION

16 BY DEFENDANT YOUSEF:

17 Q. Good afternoon, ma'am.

18 A. Hello.

19 Q. Was it your testimony that on January of 1995 you

20 made a backup copy of the hard disk contents of the laptop

21 computer?

22 A. Yes, I made three backup copies.

23 Q. Now, what else other than the backups you did

24 with the hard disk itself?

25 A. I did a cursory exam of the files contained

2567

1 within it.

2 Q. Was there a time in which you made any

3 examinations or tests as to the last date in which the files

4 were modified of that computer?

5 MR. SNELL: Objection.

6 THE COURT: It's outside the scope, but, no, I'll

7 permit it. Just remember, this is January. You're looking

8 at it in January.

9 THE WITNESS: Yes, sir. As a procedure step that

10 we customarily do in the process of having to make a backup

11 of the computer's hard drive I also have to get

12 configuration information from the computer that allows me

13 to restore the backup once I get back to the laboratory. In

14 the process of looking at the configuration information I

15 did note the date of the computer.

16 Q. Is there any way in which you can tell --

17 THE COURT: I don't understand the answer. You

18 noticed the date of the computer?

19 THE WITNESS: Yes, sir.

20 THE COURT: Now, is that the date that's shown on

21 the computer the date the computer was last opened? I mean

22 it means nothing to me. It may be the date it was

23 manufactured or the date it was programmed.

24 THE WITNESS: No, it was the date and time that

25 the computer was currently set at, similar to setting your

2568

1 watch.

2 THE COURT: So when you turned it on it gave you

3 a date and a time?

4 THE WITNESS: I had to go to a specific area to

5 see the information, but, yes.

6 THE COURT: It was January the 23rd, which if

7 that's the date that you were there playing with your

8 write-not bootable disk.

9 THE WITNESS: That was the date that I was there,

10 but that was not the date that was in the computer.

11 THE COURT: It was not the accurate date, is that

12 what you're telling me?

13 THE WITNESS: Well, it may have been accurate for

14 another time zone, but it was not the date that was the

15 Manilla date.

16 THE COURT: Okay. But it was a day off, is that

17 what you are telling me?

18 THE WITNESS: Yes, sir.

19 THE COURT: A couple of hours.

20 THE WITNESS: I don't remember the hours, but the

21 day was set to January 22nd.

22 THE COURT: So you couldn't from that tell the

23 last time that computer had been opened and looked at?

24 THE WITNESS: Oh, no, sir.

25 THE COURT: Go ahead.

2569

1 Q. Now, ma'am, when a person would modify the

2 contents of the file in the computer does the computer stamp

3 a date to that file to show when it was last modified?

4 A. That all depends on the software you're using to

5 modify the file with. It doesn't necessarily say the new

6 date and time, although some pieces of software will do that

7 automatically.

8 Q. Now, when you made a test to the computer

9 contents did you see any files which were modified after

10 January 6th?

11 A. Yes, I did.

12 Q. Of 1995?

13 A. Yes, I did.

14 Q. Would you tell us, please, what the number of the

15 files which were assigned to dates of modification after

16 January 6th of 1995 on or after January 6th?

17 A. There were a number of files. I don't

18 specifically recall the number, although it is in my notes

19 somewhere. I believe it was in the area of, and this is a

20 rough guess, of 50 or 60 files.

21 THE COURT: Here.

22 THE WITNESS: I don't believe it's in these

23 notes, sir.

24 THE COURT: Keep going.

25 Q. Looking at Government Exhibit what has been

2570

1 marked as Government Exhibit 3532A?

2 A. That's correct. In my notes, in that lab report

3 I did specify that the directory contains 61 files that had

4 a date on or after January 6th of '95.

5 Q. Does that mean the contents of 61 files were

6 modified on or after January 6th of 1995?

7 A. The contents were not necessarily modified but

8 the file was definitely opened and resaved to the hard

9 drive. It doesn't necessarily mean that the contents of the

10 file were rewritten.

11 Q. Does the computer assign a date to, a new date to

12 a file only when you modify its contents or even when you

13 just take a look at its contents?

14 A. Again, like I said previously, it depends on the

15 software you used to look at the contents, but there are

16 some pieces of software that will modify the date while

17 others will not.

18 Q. Well, do you know if these 61 files were modified

19 on the dates which were assigned to them?

20 A. I don't know that.

21 Q. Is there any way to tell that, ma'am?

22 A. No, sir.

23 Q. So would it be fair to say that the contents may

24 be changed?

25 A. They may have been.

2571

1 Q. Now, ma'am, did you do any test or examinations

2 to see if there were any viruses on the hard disk?

3 A. Yes, I did.

4 Q. Would you tell us what the viruses meant, please?

5 A. In Manilla I found no viruses. When I received

6 the laptop in Washington, D. C., I did find one virus which

7 was not destructive virus called Sampo.

8 Q. Would you tell us what a virus is, please?

9 A. The virus is a nondestructive virus. Like I was

10 stating earlier when you boot the computer it reads a

11 certain section of the hard drive or the floppy disc to

12 where it gets its basic information from in order to tell it

13 how to run how to get up and power up. Sampo attaches

14 itself to this what is called a boot record. Sampo does not

15 affect any contents of the hard dry. It does not affect

16 your input and output from the system. It's merely just a

17 nuisance that it's there.

18 Q. Would you tell, please, in a simpler way what the

19 virus is? Is this a program? Is this a file or some

20 something else?

21 A. It's, usually it is a program and it's hidden in

22 some sort of -- Sampo, particularly, which is a virus I

23 found, is attached to the boot record. So when you boot the

24 computer up, Sampo is automatically loaded into memory.

25 Q. So is a virus a programming language or a file?

2572

1 A. Yes, you have to write it in a programming

2 language. You can not see it as a file. It is source code

3 that is attached to the boot record in memory.

4 Q. Did you find any viruses when you did the first

5 test in Manilla?

6 A. No, I did not.

7 Q. Now, when you did the test, the second test, did

8 you find any viruses?

9 A. Yes, sir, I did.

10 Q. And when was that, ma'am?

11 A. I'm sorry. When?

12 Q. Yes, ma'am.

13 A. I would have to refer to my notes but it would be

14 the April 12th time frame when I initially brought the

15 computer back from New York offices.

16 Q. Was that in 1995?

17 A. Yes, sir.

18 THE COURT: Can we just back up a minute? You

19 gave the computer a test in Manilla and it was no virus.

20 That's what the test said, right?

21 THE WITNESS: Correct.

22 THE COURT: Now, was it the same test that you

23 gave the second time around?

24 THE WITNESS: It may or may not have been.

25 That's one of the problems that we've been trying to

2573

1 determine. Viruses are created and exist all the time. New

2 ones are created everyday, every hour. There's a piece of

3 software that we use specifically to test for viruses called

4 Macafee's, that is the producer of the virus-detecting

5 software, and he produces new versions all the time and we

6 update our software all the time.

7 I don't necessarily keep track of when I update

8 my virus software except that I know when I get a new piece

9 of software in the laboratory I automatically update it.

10 So between the time that I ran my virus detection

11 software in Manilla and I ran it again in the laboratory in

12 Washington, D.C. I may have updated my virus detection

13 software, so that if I had an older version in Manilla it

14 may not have detected Sampo, whereas it did in the

15 laboratory.

16 THE COURT: Okay. The disk that you put in and

17 the test that you ran, did you or can you be sure -- I don't

18 know -- that there is no virus coming off that?

19 THE WITNESS: At the time before I go, before I

20 specifically go on search procedures I typically examine all

21 my floppy diskettes for viruses, but if I had the Sampo

22 virus prior to going to Manilla, and had used an older

23 version of detection software I may not have detected it.

24 THE COURT: Okay. And the virus is some kind of

25 a program that goes in, attaches itself someplace to the

2574

1 hard drive and can do anything and just ride along to eat

2 the whole thing?

3 THE WITNESS: That's a generic explanation of a

4 virus. This particular virus does absolutely nothing other

5 than be a hindrance in the boot process.

6 THE COURT: It rides along.

7 THE WITNESS: It just rides along.

8 THE COURT: But there are some that can eat the

9 whole hard disk?

10 THE WITNESS: There are some, yes.

11 THE COURT: All right, go ahead.

12 Q. Now, ma'am, would you tell us if you did the test

13 on the original hard disk or on the backup?

14 A. The original hard disk.

15 Q. Now, how would a virus get into the computer,

16 ma'am? What are the ways in which a virus can get into the

17 computer?

18 A. Typically it's the user would use a floppy

19 diskette that is already infected, and by inserting the

20 diskette into the floppy drive and reading from the diskette

21 if you read the particular area where the virus resides you

22 would activate it.

23 Q. Is there any other way other than using the

24 floppy disk for a virus to get into the computer?

25 A. Viruses can be transmitted through

2575

1 communications. If you used your laptop for faxing and you

2 received faxes, your faxes may contain a virus or there's

3 just multitudes of ways.

4 Q. Ma'am, was it your testimony that the first time

5 in which you saw the computer was on January 23rd of 1995?

6 A. Correct.

7 Q. And when was the second time, ma'am?

8 A. When I received it in April, on April 12th I

9 think my notes state.

10 Q. On the second time you found the virus which you

11 didn't find in the first time?

12 A. Correct.

13 Q. Now, ma'am, would it be fair to say that when you

14 found the virus on the second time did that indicate to you

15 that a floppy disk could have been used with the computer?

16 A. Knowing Sampo now the way that I know the virus,

17 it's indicative of any number of ways it possibly could have

18 gotten there. I can't even state how it got there.

19 Q. Now, when you use a floppy disk do you need to

20 copy its contents into the hard disk so that the virus would

21 transfer into the hard disk, or you can just put it into the

22 computer and the virus will transfer by itself?

23 A. Well, you would at least have to read the

24 diskette whether you copied the contents from the diskette

25 to the hard drive or not. You would at least had to have

2576

1 opened the file or read from the diskette.

2 Q. Would it be a fair assumption from my part that

3 during the first time on January 23, 1995, when you didn't

4 find any virus during that period until April of 1995 when

5 you found a virus, that the person had used a floppy disk

6 with the computer?

7 A. Like I said, there is a number of ways that a

8 virus could get there either through a floppy diskette or

9 through communications. I don't want to guess as to how the

10 virus got there. I don't know.

11 Q. Was the virus able to get there without using a

12 floppy disk?

13 A. Specifically if communications were used, yes.

14 Q. And what do you mean by communication, ma'am?

15 A. The phone line was plugged into the computer, if

16 faxes were sent and received.

17 Q. So would it be fair to say that either a floppy

18 disk or a communication was used with this computer during

19 that period of time?

20 MR. SNELL: Objection.

21 THE COURT: No, I'll permit it.

22 A. Something, something must have -- well, again,

23 I'll say the virus could have existed when I arrived in

24 Manilla and performed my initial examination. It would all

25 depend on what version of detection software I had at the

2577

1 time. If I had had an older version of detect software on

2 January 23rd in Manilla that didn't detect Sampo, Sampo

3 could have been residing in the computer already.

4 Q. Supposing there was no virus on January 23rd,

5 what are the possible ways for a virus to get into the

6 computer during the that time?

7 MR. SNELL: Objection.

8 THE COURT: I think that's already been answered.

9 Okay.

10 Q. Now, ma'am, would you tell us what did you first

11 see on the screen when you switched the computer on?

12 A. Because I booted with my own bootable floppy

13 diskette the first thing I saw besides, the first thing you

14 see with most computers is an initialization screen for the

15 computer. It tells you what kind of floppy drives are

16 attached, what kind of hard drives are inside, the memory

17 that's available to the computer. And then the next thing I

18 see is the command prompt, a DOS command prompt.

19 Q. Was there a time in which you used the backup

20 tapes to see the contents of the hard disk?

21 A. Yes, sir.

22 Q. And when you used the backup tapes is it as if

23 you are using the genuine hard disk?

24 A. Yes.

25 Q. When you used the backup tape what did you first

2578

1 see on the screen before touching any keys?

2 A. When I restored the images from the backup tapes

3 to a brand new computer and treated the new computer as if

4 it was the evidence computer now, and turn the computer on,

5 the software program called Windows by Microsoft is what

6 comes up.

7 Q. Will you describe if you saw any drawing or any

8 text writings on the screen before you pressed any key?

9 A. The first thing that comes up is a graphic image

10 called the bitmap which is also called the wallpaper in

11 Windows and basically it's as if the name wallpaper it's a

12 background to anything takes place and the image was I

13 believe a tree with some grassy area and possibly some

14 writing below it.

15 Q. Now, you said you saw a tree with some grassy

16 area. Now, in order for you to change what came up on the

17 screen when you first switched on the computer, do you need

18 to change any of the computer contents in order to change

19 what first comes on the screen?

20 A. What you do is you need to change your flag

21 somewhere that says whether to load the wallpaper or not.

22 Q. So you basically changed some of the contents of

23 the computer?

24 MR. SNELL: Objection.

25 THE COURT: No. I'll permit it. Go ahead.

2579

1 A. Well, in order for me to run the computer anyways

2 I had to change some configuration. For example, the

3 computer was initially loading some what are called drivers

4 which are basically configuration files that allow, for

5 example, he had a sound card driver, which if he had a sound

6 card installed which would allow him to play CD music, or

7 voice imprints back and forth, a driver is required in order

8 for the computer to recognize this sound card.

9 Well, his computer was loading some drivers, for

10 example, for the sound card which my computer that I

11 restored the image to did not have. So it would give me

12 error at time. So I would turn that off. And there were a

13 couple of times that I turned off, also.

14 Q. Now, you said you first saw a --

15 THE COURT: Whoa, hold on for a minute. That

16 computer there, do you know whether it has a "sound card"?

17 A. I don't know if it internally does as it is, but

18 he has the slots available that are called PCMCIA slots

19 which exist right here.

20 THE COURT: Wait a minute, kid.

21 THE WITNESS: I'll explain. As a matter of fact

22 I can show you a card that's in here right now if I can get

23 it out. They're little tiny cards and they look like credit

24 cards.

25 THE COURT: They go in those slots?

2580

1 THE WITNESS: They go in these slots and they act

2 like, and I can't get this one out right at this moment.

3 THE COURT: Don't worry about if he got it out.

4 THE WITNESS: There is one in here right now.

5 It's called APC. They are a miniature versions of any

6 hardware you can want. This particular card in here is an

7 fax modem card. It is a fax machine, and this is how small

8 it is, you plug your phone line into this little side right

9 here. So if he were to load drivers which he would require

10 drivers in the computer in order to talk to these cards and

11 understand what these cards do. Well, because I didn't have

12 these cards at the time my computer would think it was an

13 error, whereas his computer would naturally load it.

14 THE COURT: Okay. Now, is that where the sound

15 drive would be, also?

16 THE WITNESS: He could put a sound card in here.

17 I don't know where his sound card specifically resided,

18 whether it is in here or whether he has one installed

19 internally in the machine. My guess is that he does not

20 have one installed in the machine, because if there was

21 usually there's speaker outputs where you can attach

22 speakers to and microphones to. So my guess is he doesn't

23 have one installed, but I don't know. I didn't open up the

24 laptop physically to find out.

25 THE COURT: All right.

2581

1 Q. Ma'am, you testified that you saw a drawing of a

2 tree and some grass, am I correct?

3 A. Yes.

4 Q. Would you be able to change what comes first on

5 the screen, the drawing which comes on the screen when you

6 first switch it on before pressing any key, would you be

7 able to change that drawing without changing any of the

8 computer contents?

9 A. You mean like physically redraw the drawing?

10 Q. Permit another drawing to come up on the screen?

11 A. Yes. Well, what you could do is you could reset

12 this flag and the flag which initially calls this particular

13 file with a tree and grassy area which is called SANA.BMP

14 for bitmap. All you have to do is set it to a new file name

15 that would load a new graphic.

16 Q. So you need to change -- is your answer that you

17 need to change some of the contents of the computer in order

18 to change what comes on the screen?

19 A. No, sir. Well, you would have to change a

20 configuration flag if I wanted a different picture to load

21 up, but I have, there is no reason for myself anyways to

22 load a different picture. So I would have not reset that

23 flag.

24 Q. Not loading a different picture, just changing

25 the contents of the computer, can you do you it without

2582

1 changing any of the computer contents?

2 A. No, you would have to reset this flag.

3 Q. So --

4 THE COURT: How do you go about resetting a flag?

5 Is it merely typing some things into the computer?

6 THE WITNESS: It's merely clicking a box with an

7 X or removing an X.

8 THE COURT: With the mouse and give it a click?

9 THE WITNESS: Yes, with the mouse with those

10 little icon boxes you fill in an X if you want to print

11 something or not print something, same way.

12 THE COURT: All right.

13 Q. Now, ma'am, if this same computer was brought

14 back to you a few days later, and when you first switched it

15 on you found a different drawing from what you can see

16 today. Would it be fair to say that the contents of the

17 computer were changed during the few days when the computer

18 was taken away?

19 MR. SNELL: Objection.

20 THE COURT: If it had been changed, would it have

21 been changed is the question.

22 THE WITNESS: Yes, if it loaded a graphic file

23 other than the one I expected, then, yes, somebody changed

24 the setting somewhere.

25 Q. Now, ma'am, during the examinations which you

2583

1 conducted of this computer on January, 1995, did you make

2 any specific tests as to the number of erased files?

3 A. In January?

4 Q. Yes, ma'am?

5 A. If I could refer to my files I believe I did that

6 in Honolulu. Yes. That was after I created the backups

7 from the original computer laptop in Manilla, I then took

8 the three backup tapes with me to Honolulu where I began

9 performing examinations, and that is where I examined the

10 erased file information.

11 Q. And would you tell us how many erased files you

12 found or you recovered?

13 A. According to my notes I stated that 32 erased

14 files were recovered.

15 Q. Now, are you able to state whether these files

16 were placed on the computer and erased after January 6th of

17 1995?

18 A. No, I couldn't say that.

19 THE COURT: The erasures you are not time

20 stamped?

21 THE WITNESS: No, sir, when you erase a file the

22 original file dates are saved with the erased file.

23 Q. Now, ma'am, I'd like to direct your attention to

24 what has been marked Government Exhibit 3532D for

25 identification.

2584

1 A. Okay.

2 Q. Is that your handwriting on these pages?

3 A. I typed this report. 3532B?

4 Q. D.

5 A. Oh, I'm sorry. Yes, sir, that's my handwriting.

6 Q. Would you tell us -- ma'am, is it also your

7 handwriting on the upper left-hand corner of the page?

8 A. Yes, sir.

9 Q. Is that the name of a person?

10 A. I believe it is.

11 Q. Would you tell us who that person is?

12 MR. SNELL: Objection, unless there is an offer.

13 THE COURT: I don't know where it's going but

14 I'll let it go. Do you know who it is?

15 THE WITNESS: I remember it's one of the persons

16 at the briefing that we had on January 23rd, a Monday. I

17 don't remember who particularly it is.

18 Q. Now, ma'am, where did you have this briefing?

19 A. At the offices of one of the PNP areas.

20 Q. Was that before you interacted to the computer?

21 A. Yes, that same day, but prior to.

22 THE COURT: I tell you what, ladies and

23 gentlemen, following the workings of Pliny the Younger,

24 Pliny the Younger was the guy that I had to translate when I

25 was in school and it was all in Latin and all of that. At

2585

1 the end of it it said, I'm sorry this letter is so long. If

2 I had more time it would be shorter. Okay?

3 Now, you can imagine what a school boy did with

4 that thing. I went nuts. But there you go, after working

5 long and hard on getting through the thing only to see

6 that's the way he ended up, I felt like saying wish he had

7 more time, made it shorter it could have been easier for me.

8 But I learned something from that. I learned that every now

9 and then, even in cross-examination, we take a little more

10 time, it makes it shorter. We're going to take a break,

11 perhaps get that little time taken, okay. Step out, folks.

12 (Jury not present)

13 THE COURT: All right, step down, ma'am.

14 (Witness not present)

15 (Continued on next page)

16

17

18

19

20

21

22

23

24

25

2586

1 THE COURT: You got some time to talk about it

2 now. I gather much of this is going to be repeated again

3 through Swartzendruber, but you guys figure that out for

4 yourselves. I don't care. All right.

5 MR. SNELL: Judge, if we could just have a little

6 guidance on the setting up of the computer, we were going to

7 try to get things started at the break.

8 THE COURT: What are we talking about?

9 MR. SNELL: We're talking about installing a

10 computer on the witness stand with a monitor, a fair amount

11 of wiring so that it also wires the two televisions, so that

12 the jury will be able to see what's going on, plus the

13 television units for defense table, and one for the

14 government's table. I think the way we --

15 THE COURT: If we are going to end up with a

16 bunch of TV sets and a bunch of wiring going on, after Mary

17 Horvath is done, we'll introduce Mr. Swartzendruber, and

18 then we'll suspend for the day, and you can have all the fun

19 you want to. Just don't trip anybody with any of that

20 stuff.

21 MR. SNELL: I just hope to avoid electrocuting

22 myself.

23 THE COURT: I'm not so sure I'm rooting for that.

24 (Recess)

25 (In open court; jury not present)

2587

1 THE COURT: Mr. Yousef, do you know how much

2 longer you're going to be?

3 DEFENDANT YOUSEF: About ten minutes, your Honor.

4 THE COURT: Anybody else want to talk to this

5 woman? You do.

6 MS. BARRETT: About five, ten minutes.

7 THE COURT: All right.

8 (Continued on next page)

9

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18

19

20

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23

24

25

2588

1 MARY HORVATH, resumed.

2 (Jury present)

3 CROSS-EXAMINATION(Continued)

4 BY DEFENDANT YOUSEF:

5 Q. Now, ma'am, on January 23 of 1995 when you were

6 in the Philippine National Police office who else was with

7 you there?

8 A. There were a number of people. I would say 15,

9 20, 25 people. The only people that I specifically know are

10 the Bureau personnel that were there with me.

11 Q. Do you recall their names, ma'am?

12 A. Yes, Special Agent Frank Pellegrino, Steve

13 Burmeister, Jackie Bell and there was another gentleman I

14 can't remember his name. Wally.

15 THE COURT: Wally?

16 THE WITNESS: I don't remember his name. Wally

17 Higgins.

18 Q. Do you know what jobs each of them had?

19 MR. SNELL: Objection.

20 THE COURT: Yes. Sustained.

21 Q. Now, ma'am, do you recall the names of any of the

22 Filipino National Police personnel there?

23 A. Just the two that I previously mentioned, Alex,

24 and Burt and I don't know their last names.

25 Q. Now, on how many different occasions you made

2589

1 backup of the computer contents?

2 A. There were a number of occasions. Initially it

3 was the three backups in Manilla. There was an additional

4 two in Hawaii, and then there were numerous backups made at

5 the laboratory both on my own doing and as a request.

6 Q. The first backup was made on January 23, 1995 am

7 I correct, ma'am?

8 A. Yes, there were three backups made that day.

9 Q. When was the second backup made?

10 A. There were two additional backups made in

11 Honolulu. Sometime between January 24th and sometime during

12 that week in Honolulu.

13 THE COURT: You had a choice where to work in

14 Honolulu and Manilla, and you decided in Honolulu?

15 THE WITNESS: Yes.

16 THE COURT: Okay.

17 Q. So is it your testimony that you had the computer

18 with you in Honolulu on January 24th of 1995?

19 A. No, I did not have this laptop with me. I had

20 only the three backups that I initially prepared in Manilla.

21 Q. So the second backups you made them from the

22 first backups?

23 A. Correct.

24 Q. Now, when did you make the third backups, ma'am?

25 A. Okay. The three were in Manilla. Then there was

2590

1 two in Honolulu, so that was five. Then there were further

2 sets made at headquarters, both prior to receiving the

3 original laptop and after receiving the original laptop.

4 Q. And when was that, ma'am?

5 A. Specific dates I'd have to go back to my notes

6 which are not included here to tell you specific dates.

7 Q. Would you tell us approximately when was that?

8 MR. SNELL: Objection.

9 THE COURT: It was both before and after you

10 received the laptop?

11 THE WITNESS: Yes, sir. It was over the course

12 of the year and a half.

13 THE COURT: All right.

14 Q. Was that in 1996?

15 A. There were some made in 1996 and some made in

16 1995.

17 Q. Now, the backups which you made directly from the

18 computer itself, not the backups which you made from other

19 backups, but the one that you made from the computer itself,

20 how many different occasions was that?

21 A. The initial three in January, in Manilla, and

22 then there was initial four or five at the laboratory.

23 Q. And do you recall when was that?

24 A. That would have been around sometime after

25 receiving in the laboratory on April 12th. I can't give you

2591

1 a specific, I can give you a specific date of March 1st

2 where I created -- actually, no, that wouldn't have been

3 from the original evidence though. That would have been a

4 copy of the backup. The other specific dates I can't tell

5 you from these notes here.

6 Q. Was that in 1996?

7 A. From the, off the actual evidence, no. It would

8 have been in 1995 when I received it in April.

9 Q. Now, did you compare at all -- withdrawn. Was

10 there any time at which you compared the contents of these

11 backups together?

12 A. Yes, sir.

13 Q. And did you find any differences in between them?

14 A. Yes. As I previously stated there is no

15 differences contained within the active files within the

16 computer and backups that I made between the two versions

17 between the Manilla version and the Washington version but

18 there were differences with erased information that was

19 obtainable.

20 Q. Now, did you label these backups, did you give

21 them names? Did you label them?

22 A. The majority of them were given Q numbers.

23 That's a procedural thing that we do at the laboratory. It

24 was numbers subsequently each of the tapes that were done.

25 The tapes that I did upon request for the AUSA'S office were

2592

1 not Q'd.

2 Q. I'm sorry, which ones were Q'd?

3 A. The original backups that I did which was Q1, A

4 through Q1-L were all labeled, A through L. The original

5 evidence itself, the laptop itself was labeled Q1.

6 Q. Now, ma'am, did you label any of these backups as

7 Q1.ERA?

8 A. I'm sorry. Can you repeat that?

9 Q. Did you label any of these backups as to Q1.ERA?

10 A. That would have been my erased file listing.

11 That was a file lists that was created of all the erased

12 files within the hard drive.

13 Q. Was the backup that you found the difference

14 between the old one and the new one?

15 A. There were two erased file listings. One that

16 was completed from the contents of the hard drive while it

17 was in Manilla, and then one that was completed from the

18 contents of the hard drive as I received it in the

19 laboratory in Washington, D.C. It was those two text files

20 that I compared the differences.

21 Q. And what differences did you find between them,

22 ma'am?

23 A. There were a number of differences. The two

24 erased listings aren't here for me to tell you specifically

25 what the differences were, but basically the differences

2593

1 were that there were some erased files that I could recover

2 in Manilla that I could not recover when I, it arrived in

3 Washington, D.C., and there were some erased files that I

4 could restore in Washington, D.C. that I could not retrieve

5 while I was in Manilla.

6 Q. Now, ma'am, do you know what is the reason for

7 that you are not able to retrieve the files which you were

8 able to retrieve them when you were in Manilla?

9 A. There were some modifications that had taken

10 place on the hard drive through some use of it that allowed

11 me to access particular areas of erased information that I

12 couldn't previously access in Manilla.

13 Q. So did this modification of the hard disk occur

14 after January 23rd of 1995, when you first saw the computer?

15 A. Yes.

16 Q. Now, ma'am, you testified about temporary files.

17 Do you recall that?

18 A. Yes.

19 Q. Would you tell us what a temporary file is?

20 A. A temporary file is a file that's created by a

21 particular piece of software, whereby the software we use it

22 as a temporary writing space such like a scratch pad that

23 you would use that you would throw away later.

24 Q. Would you tell us what the difference between a

25 temporary file and a normal text file?

2594

1 A. For example, if you were writing a long letter on

2 a particular piece of software, the temporary file, I'm

3 sorry, the software would save the data that you have

4 written already to a temporary file, kind of as a backup and

5 in case if kind of thing, for if the computer crashed the

6 software, some software could come back and tell you, you

7 have a previous copy of this letter that you were writing

8 before. Would you like to use it again? Do you want to

9 save it? Don't you want to save it? It's basically a

10 scratch pad for you.

11 Q. Now, when you first had access to the computer,

12 am I correct that before doing anything you had to use

13 something called hard drive blocker?

14 A. That's correct.

15 Q. And what was the reason for that, ma'am?

16 A. The hard drive write blocker like I previously

17 explained prevents me or any software utilities that I used

18 from writing to the hard drive.

19 Q. And is it the standard practice to do it before

20 gaining access to computer contents?

21 A. Yes, it is.

22 DEFENDANT YOUSEF: I have no further questions,

23 your Honor.

24 THE COURT: Ms. Barrett.

25 CROSS-EXAMINATION

2595

1 BY MS. BARRETT:

2 Q. Ms. Horvath, the hard drive writing block, is

3 that a software?

4 A. Yes, it is.

5 Q. And that you use when loading into the A drive?

6 A. Yes.

7 Q. And you say that you used that in order to

8 prevent writing that may take place between you and the

9 computer?

10 A. Correct.

11 Q. So was that used in order to preserve the

12 integrity of the information on the hard drive?

13 A. That's correct.

14 Q. So if -- withdrawn. So there was a possibility

15 then that if you view or examine files by booting up the

16 hard disk and not using something like the hard drive write

17 block that there is a possibility that modifications could

18 take place on the hard drive?

19 A. That's correct.

20 Q. Now, you examined the laptop on January 23rd?

21 A. Yes.

22 Q. And was it your testimony that on January 23rd

23 the computer reflected the date to be January 22nd?

24 A. That's correct.

25 Q. If you had created a document or modified a

2596

1 document on that date, the computer would have shown it to

2 be January 22nd?

3 A. Correct.

4 Q. So the computer was one day behind?

5 A. I don't know if it was a full 24 hours, but

6 date-wise, yes.

7 Q. So let's assume that the computer was not

8 tampered with and was accurately running continuously from

9 January 6th of that year, and if upon viewing a file the

10 time and date that corresponds to a certain file, if it is

11 shown on the computer that the date on that file is January

12 7th, the accurate time that document would have been created

13 or modified would actually, would have been January 8th?

14 MR. SNELL: Objection.

15 MS. BARRETT: Let me withdraw that.

16 THE COURT: Yes, start again.

17 Q. As of, let's assume that as of January 6th that

18 the computer clock was not tampered with, from January 6th

19 to January 23rd when you got that computer. And let's

20 assume that it was accurate and running continuously in

21 terms of time, one minute means one minute. If upon viewing

22 a file -- first of all, when you view a file is it a fact

23 that each file generally has a time and date that

24 corresponds to that file?

25 A. Correct.

2597

1 Q. And that time and date basically reflects the

2 time that a file was modified or created or something

3 actually was done on that file?

4 A. Based on the date and time that is saved within

5 the computer, yes.

6 Q. So based on the clock, the way -- based on how

7 the clock was reflected in the computer on January 23rd if

8 upon viewing a file in the computer on January 23rd, if you

9 had seen a file that showed that the date shown was January

10 7th, that document should have, am I correct in saying that

11 that document should have been reflected as January 8th

12 instead of January 7th?

13 MR. SNELL: Objection.

14 THE COURT: No, I'll permit it.

15 A. If the computer were running properly, the clock

16 within it was running properly.

17 Q. And it was not tampered with?

18 A. The batteries within it were running properly to

19 keep the clock running accurately, then if I had saved the

20 file on what really would have been January 8th, the date

21 stamp for that file would have said January 7th.

22 Q. And if you had saved the file on January 7th, the

23 date stamp would have stated January 6th, also?

24 A. If the clock was running as it was when I saw it.

25 MS. BARRETT: No further questions, your Honor.

2598

1 CROSS-EXAMINATION

2 BY MR. GREENFIELD:

3 Q. Ms. Horvath, the computer you saw on January 23rd

4 is that computer which is in front of you now; is that

5 correct?

6 A. I believe it is. I have to check the serial

7 number against my notes.

8 Q. Assuming that's so.

9 A. Yes.

10 Q. Were you given any other components or parts to

11 the computer other than that?

12 A. Yes, sir, there was the electric cord that

13 attaches to it. There was I believe an extension electric

14 cord. I believe there was a phone attachment for the PCMCIA

15 card that is in there now. I believe there was also a mouse

16 or a track ball.

17 Q. Do you know when those items were seized or where

18 they were seized?

19 A. I believe at the same time as far as I know.

20 Q. Well, you believe that. You don't know that for

21 a fact?

22 A. Correct.

23 Q. Now, the backup files that you were referring to,

24 that you made on January 23rd, would it be a fair statement

25 that the purpose in preparing the backup file is to

2599

1 create -- my words -- a photograph of everything that you

2 are taking as of the moment you receive the computer?

3 A. That's correct.

4 Q. And the purpose is to maintain integrity of that

5 which you took at the moment you took it?

6 A. That purpose and also because I was not aware

7 that I would ever see the actual computer again, so it was

8 available for me to do my examination.

9 Q. Now, this creation of backup files that's even to

10 somebody with basic computer skills can create a backup

11 file, isn't that correct?

12 A. If you have the proper software.

13 Q. Now, with respect to -- correct me if I'm

14 wrong -- when you were showing the judge, the PCMCIA, the

15 fax card -- did I get that right?

16 A. Yes, sir.

17 Q. -- could you tell from examination of the card

18 when in fact that was installed in the computer?

19 A. Oh, no.

20 Q. Is there any way to ascertain that?

21 A. The only way I could think of ascertaining that

22 would be, for example, the fax card would have fax software

23 that would go along with it. You can look at the

24 installation of the software and see what the dates were set

25 to, but even that may not prove satisfactory.

2600

1 Q. Now, you also testified that you in your first

2 testings found 32 erased files?

3 A. Correct, I believe so.

4 Q. Now, correct me if I'm wrong on. This is an

5 erased file, a deleted file?

6 A. Yes.

7 Q. And do you recall whether the majority or most of

8 these erasures took place in what portion of the computer?

9 A. No, I don't.

10 Q. Or the program?

11 A. No, I don't recall off the top of my head, no.

12 Q. Now, with respect to your taking possession of

13 the backup files and having them through now, and the

14 computer itself, did you conduct any examination of the

15 files and/or the tapes and/or the computer to ascertain if

16 there was any tampering with the product?

17 A. The two tests already talked about, one was a

18 comparison of the status of the computer in Manilla, and the

19 status of the computer when I received it in Washington,

20 D.C., that test was performed whereabouts finding the erased

21 information difference. That was the primary test.

22 Q. You did no other tests?

23 A. Just the comparisons between the status of the

24 two areas. That's the only one I can think of off the top

25 of my head.

2601

1 Q. Do you know if anybody else in the FBI laboratory

2 conducted any other tests besides yourself?

3 A. To my knowledge, no.

4 Q. Did you prepare reports with respect to those

5 tests?

6 A. Yes, sir.

7 Q. And those are the March 20, if I recall, March,

8 1995 report and the April, 1996 report?

9 A. March of '95, and March of '96.

10 Q. Now, with respect to the erasures or the

11 deletions as you sit on the stand now, do I take it that you

12 have no specific recollection as to what area and what the

13 erasures actually dealt with within the software, if I'm

14 making sense with my question?

15 A. You make sense.

16 Q. I do?

17 A. My memory doesn't recollect, but I have it in my

18 stacks of printouts as to which files were erased, which

19 were unerased, where they were contained.

20 Q. But as of now you don't have a specific

21 recollection of it?

22 A. Correct.

23 MR. GREENFIELD: I have no further questions of

24 this witness.

25 THE COURT: Any redirect for this witness?

2602

1 MR. SNELL: No, your Honor.

2 THE COURT: I told you I'd get you to Washington

3 today. All right. Nice to see you. Bye now.

4 (Witness excused)

5 Tomorrow, ladies and gentlemen, I understand our

6 next witness is going to be somebody not only who is going

7 to describe computers, but have some kind of a show and

8 tell, and I understand that the wiring for this has to be

9 stretched throughout the courtroom so that everybody will be

10 able to see this thing. Hopefully whatever they're going to

11 show us will be big enough for all of us to see it.

12 So we are going to await tomorrow morning to do

13 that. I'm not going to start wiring it now. So you have an

14 early break today, okay? I will see you tomorrow morning,

15 kids.

16 (Continued on next page)

17

18

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20

21

22

23

24

25

2603

1 (Jury not present)

2 THE COURT: I gather you think that

3 Mr. Swartzendruber will be on for a while.

4 MR. SNELL: I do, your Honor.

5 THE COURT: How long is a while for direct.

6 MR. SNELL: For direct I would estimate a couple

7 of hours.

8 THE COURT: Okay. All right.

9 (Adjourned to 9:30 a.m., Tuesday, July 23, 1996)

10 (Continued on next page)

11

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2604

1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 ALBERT I.D. FERRO................2492

4 MARY HORVATH..............2552 2566

5 GOVERNMENT EXHIBITS

6 Exhibit No. Received

7 770 and 771 ....................................2566

8

9

10

11

12

13

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2605

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 23, 1996 9:30 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD

24

25

2606

1 (In open court; jury not present)

2 THE COURT: Sit down, please. Six. Do you

3 include the comics with this, David, or do you take the

4 comics out?

5 MR. GREENFIELD: Sorry, your Honor?

6 THE COURT: Do you include the comics when you

7 give me copies of the Daily News?

8 MR. GREENFIELD: No.

9 THE COURT: You take them out.

10 MR. GREENFIELD: I take the crossword puzzle.

11 THE COURT: I should have known, okay.

12 MR. GREENFIELD: Your Honor, incidentally, the

13 copies of the Daily News for today with some of the columns

14 and stories with respect to the incident are reflected in

15 there, I do this at this time only as indicative of what's

16 in the other papers, without what's on TV. It's surely not

17 only the Daily News that's running the story. I'm sure the

18 Court recognizes that.

19 THE COURT: Yes. Okay. Now, has anyone tried

20 these things out?

21 MR. SNELL: We did, your Honor, last night and it

22 worked fine then.

23 THE COURT: Fine as of last night, okay.

24 MR. SNELL: Right.

25 THE COURT: There are five or six boards, white

2607

1 poster boards. I have no idea what they say or what they

2 are there for, but somebody want to clue me in as to what

3 they are and whether anybody else has seen them?

4 MR. SNELL: Your Honor, to answer the second

5 question first, they've all been shown to the defense with

6 the exception of two that arrived about a minute and a half

7 ago. Those are the ones that don't have Government Exhibit

8 stickers on them yet, but they are actually blowups of 3500

9 material which is I think 3533G, pages 2 and 3. Otherwise

10 everything was shown to defense counsel yesterday. And we

11 have --

12 THE COURT: 3527, 3532. I assume this is 3533.

13 G?

14 MR. SNELL: G, your Honor. I think the first

15 page is a cover page from the fax.

16 MR. GREENFIELD: Your Honor, the government has

17 provided us four 8 by 11 copies of this additional chart.

18 THE COURT: He is saying to me that these are the

19 same things as these pages. Is that true?

20 MR. SNELL: That's right, your Honor, exactly.

21 THE COURT: You have a 3533G.

22 MR. GREENFIELD: I just got it this morning.

23 THE COURT: 3533G has three pages. The first one

24 has directory of B:\, first word written on it is Norton.

25 The second page directory of suspect drive, directory

2608

1 D:\PS2, underscored SE. Is that the beast that we're

2 talking about?

3 MR. SNELL: It is, your Honor.

4 THE COURT: All right, that's three pages. This

5 isn't what I have.

6 MR. SNELL: I'm sorry, your Honor. Could I take

7 a look?

8 THE COURT: Okay. Wait a minute. All right. I

9 know where that page is. These are the three pages you're

10 telling me about. How about that other stack?

11 MR. SNELL: This stack, your Honor has been

12 labeled Government Exhibit 774A and B, the first two blowups

13 are files that are the first entry on top is C:\Windows\,

14 OBAID.TXT, and then the date 9/17/94. 1:00p.

15 THE COURT: Does this show up on the computer.

16 MR. SNELL: Yes, your Honor, it does, except the

17 header I just read into the record was typed on to the

18 printout of the rest of the file. The printout of the rest

19 of the file is on pages 4 and 4A in Government Exhibit 355

20 and that was the exhibit booklet we used last week or two

21 weeks ago.

22 THE COURT: Okay. Next one.

23 MR. SNELL: 775A is headed \Windows\ Zyid.TXT,

24 and this again, except for the header, it's an enlargement

25 of the printed material on pages 5 and 5A in Government

2609

1 Exhibit 355.

2 THE COURT: Okay.

3 MR. SNELL: Government Exhibit 778 for

4 identification is an enlargement of page 7 in the same

5 exhibit except the header information with the name of the

6 file has been added to the top.

7 THE COURT: All right.

8 MR. SNELL: We also have two photo enlargements

9 of files that are on the computer. First I've got 776 which

10 is an enlargement of a photograph taken of a screen on the

11 computer, a copy of a computer.

12 THE COURT: Does anyone have a copy of this,

13 also, defense counsel? Do I?

14 MR. SNELL: It's on the hard drive of the

15 computer, your Honor. I don't know whether, it's not in the

16 booklet. What we want to do, your Honor, today with the

17 witness is have him pull up this screen, and show the jury

18 the text which includes the name Arnaldo Forlani. Now, the

19 Court will recall that the ticket that was introduced into

20 evidence for Flight 434 on December 11, 1994, was issued in

21 the name of Amaldo, A-M-A-L-D-O Forlani.

22 THE COURT: Yes.

23 MR. SNELL: The other photo enlargement, your

24 Honor, is Government Exhibit 773. This is a photograph of

25 it's actually a printout of a file, actually a screen on the

2610

1 computer that indicates Windows registration material for

2 the Windows software on the laptop, Government Exhibit 301.

3 THE COURT: This product is licensed to: Is that

4 what you're talking about?

5 MR. SNELL: Yes, exactly, your Honor, Adam Qasim

6 AS LT. This report has been turned over as well as

7 Mr. Swartzendruber's report to all counsel.

8 THE COURT: That's all?

9 MR. SNELL: That's all of these enlargements. We

10 also have some naked poster boards that the witness wants to

11 use to illustrate some of what he's going to be talking

12 about to try to make the presentation about the computers

13 clear. I thought maybe we could set up the easel next to

14 the witness stand at that point and have him do that.

15 THE COURT: Provided he's got a booming voice.

16 He's going to have to fill the entire barn here, including

17 making sure that the interpreters can hear it.

18 MR. SNELL: Yes, your Honor, I've told him

19 actually about the need to use the microphone, and we'll

20 move it over at that point.

21 THE COURT: All right.

22 MR. KULCSAR: Your Honor, can we just see the

23 last two exhibits?

24 THE COURT: Sure.

25 (Pause)

2611

1 THE COURT: Are we all set?

2 MR. SNELL: I think so. The question I had when

3 we get to the demonstration, would you your Honor prefer if

4 I ask the questions from the table here or, I don't want to

5 block the jury's view of that monitor.

6 THE COURT: You can do it from the table.

7 MR. SNELL: Okay. Thank you.

8 THE COURT: All right. Go get the jury.

9 MR. UDELL: Forgive me, your Honor, Ms. Barrett

10 just stepped out a moment.

11 THE COURT: What?

12 MR. UDELL: She'll be right back. She just

13 stepped out a moment.

14 THE COURT: No problem.

15 MR. KULCSAR: Your Honor, I need to ask you about

16 the expert witness retained by the defense sitting in the

17 front row so he can see the monitor.

18 THE COURT: Sure, he can sit right there if he

19 wants to. Sure put him in. Who is he?

20 MR. KULCSAR: Dr. Leventhal.

21 THE COURT: Come on. Sit in the last seat.

22 There is a reason for it. They are going to do some poster

23 board markups.

24 MR. LEVENTHAL: Tell me where I'm supposed to be.

25 THE COURT: You see from there?

2612 1 MR. LEVENTHAL: Yes, your Honor, it's fine.

2 Thank you.

3 (Jury present)

4 DAVID SWARTZENDRUBER,

5 Called as a witness by the government, having

6 been duly sworn, testified as follows:

7 DIRECT EXAMINATION

8 BY MR. SNELL:

9 Q. Mr. Swartzendruber, how are you employed?

10 A. I'm employed by Microsoft Corporation assigned to

11 law and corporate affairs.

12 Q. And what is your title there?

13 A. I'm an investigator.

14 Q. How long have you worked for Microsoft?

15 A. Approximately two years and four months.

16 Q. Before you joined Microsoft what did you do for a

17 living?

18 A. I was a police officer.

19 Q. And where did you work as a police officer?

20 A. My last 15 years I spent with the city of San

21 Diego, San Diego, California.

22 Q. Now, while you were a police officer did you

23 develop any area in which you specialized?

24 A. Yes, I did.

25 Q. What was that?

2613 1 A. Computer forensic work.

2 Q. Could you tell us just in a general way what

3 computer forensic work involves?

4 A. It's using computer science to obtain evidence

5 from disk drives and other devices used to hold data and

6 present that evidence to a court.

7 Q. A disk drive is basically the part of the

8 computer that stores information?

9 A. Yes, it is.

10 Q. When did you first start doing forensic computer

11 science?

12 A. I first started actually doing examination

13 process when I was assigned to the Drug Enforcement

14 Administration Financial Task Force. I was collaterally

15 assigned as a computer forensic person. I had my own lab,

16 and that would be approximately, I did that with the DEA

17 for approximately four years.

18 MR. KULCSAR: Your Honor, could we ask the

19 witness to speak a little closer to the microphone if you

20 don't mind?

21 THE COURT: Sure.

22 Q. You said that was approximately four years?

23 A. Yes.

24 Q. And was that with the, was that down in San

25 Diego?

2614 1 A. Yes.

2 Q. What kinds of cases other than, I imagine,

3 narcotics cases did you work on?

4 A. A variety of cases. I worked on cases involving,

5 I worked with the US Customs on Operation Long Arm which was

6 a pedophile case. I've worked on murder for hire cases

7 where computer evidence was obtained and we examined the

8 drives, MedCal fraud for Department of Justice in the State

9 of California. I've examined drives for Emporia County

10 Sheriff's Department in an internal case, involving several

11 police officers in an evidence room. There were a variety

12 of cases that I examined computer evidence.

13 Q. Now, since joining Microsoft have you done

14 anything further that you would consider to be in the field

15 of forensic computer science?

16 A. Yes.

17 Q. Could you describe what that's involved?

18 A. Yes. Yes. I used my skills, part of my job is

19 to assist law enforcement, and I've used my computer

20 examination skills for Los Angeles County Sheriffs,

21 Correction, Los Angeles County District Attorney's Office in

22 a case they had involving a rental copyright rental case.

23 It was a distribution, illegal distribution of copyrighted

24 material where we seized computer hard drives and examined

25 the drives and we obtained information that was necessary to

2615 1 bring the case to court.

2 Q. Have you testified previously in a Court as an

3 expert?

4 A. I have.

5 Q. And was that an expert in the area of computers?

6 A. It was. I testified in Canada in one of the

7 provisional courts as an expert in recognition of pirate

8 bulletin board systems, terminology, and generally on BBS

9 systems, bulletin board systems.

10 MR. KULCSAR: Your Honor, could the reporter read

11 back the last part of the answer, please?

12 (Record read)

13 Q. Is that BBS or PBS?

14 A. BBS, bulletin board systems.

15 Q. Now, directing your attention to February of this

16 past year, 1996, did there come a time when you received a

17 telephone call from someone within your office at Microsoft?

18 A. Yes.

19 Q. In connection with this case?

20 A. Yes.

21 Q. Who was that?

22 A. Ann Murphy.

23 Q. Who is Ann Murphy?

24 A. Ann Murphy is corporate counsel in law and

25 corporate affairs.

2616 1 Q. And after your phone conversation did you have a

2 conversation with an Assistant United States Attorney?

3 A. Yes, I did.

4 Q. And after that conversation did you receive

5 something?

6 A. I did.

7 Q. What did you receive?

8 A. Four millimeter DAT type.

9 Q. What is a 4 millimeter DAT tape?

10 A. It's a small tape cartridge that had a Safeback

11 image. Safeback is the utility used to create this mirror

12 image of a hard drive on to this DAT tape. It's similar to

13 a cassette tape that you put inside of a tape recorder,

14 except it's smaller, and I received that I believe via

15 Federal Express.

16 Q. Before you received the DAT tape were you asked

17 to do anything when you would receive the tape?

18 A. Yes.

19 Q. What were you asked to do?

20 A. I was asked to reconstruct that on to my control

21 hard drive and to examine the contents.

22 Q. Could you tell us what you mean by a control hard

23 drive?

24 A. I have several computers that are connected to

25 the network at Microsoft. Whenever we examine a drive there

2617 1 might be the presence of a virus or some other anomaly which

2 may create a problem on a network, so what we do is I have a

3 specific computer that I use to reconstruct any mirror

4 images on to avoid those problems.

5 Q. Were you able to reconstruct the content of the

6 computer from the DAT tape that you received?

7 A. Yes, I was.

8 Q. After you did that what did you do next?

9 A. I checked the drive for anomalies. I ran

10 programs that I use. I have a certain profile that I

11 conduct when I do an examination. I ran Norton utilities,

12 some other forensic software to examine the known data

13 areas, anything that might be erased on the drive, and any

14 other slack areas.

15 Q. Before you started the examination did you check

16 the contents of the tape for the presence of a virus?

17 A. Not the tape, my drive.

18 Q. And could you tell us a little bit more about

19 what you did in that regard?

20 A. Typically when I reconstruct a mirror image the

21 first thing I'll do is I'll run a virus check to insure that

22 haven't corrupted anything on the drive and no viruses

23 residing which could damage any disk that I may use or any

24 utilities I may use to the drive. I used FPROT which is a

25 licensed utility. It's a utility that will scan the hard

2618 1 drive to check for the presence of any viruses and I found

2 the Sampo virus on the master boot record of the second

3 drive which was the reconstructed drive.

4 Q. Would you tell us, please, first, what is a virus

5 in connection with a computer?

6 A. Well, a virus is something that can change the --

7 it's not a good thing -- and it's something that can change

8 the characteristics of your drive. In this case what

9 happens in a master boot record virus is it could

10 essentially destroy your master boot record and if it

11 destroys your master boot record that kind of has the map

12 for you of your drive, and where your DOS volume actually

13 starts where you start seeing this data. If it destroys it

14 you're not going to be able to reach the data on the drive.

15 So it could have disasterous effects on the operation of

16 your system.

17 Q. You used a couple of terms that I'd like you to

18 define for us if you could. What is a master boot record?

19 A. Well, on a hard drive the master boot record

20 resides at -- let me go back a step. The master boot record

21 very simply holds partition table and you can have several

22 operating systems on your hard drive. You can have a DOS

23 system. You can have a unit system, two different operating

24 systems. One of those has to be recognized as the one, the

25 first one to be activated. In that partition table it will

2619 1 point to the proper cylinder head and sector to start. So

2 your master boot record is a very important. It reads sides

3 on the physical drive always at 001 which is head 0 cylinder

4 zero sector 1.

5 Q. That head and cylinder sector terminology that

6 you just used, does that relate to actual physical areas on

7 the hard drive of the computer?

8 A. Yes.

9 Q. Does a virus that affects the master boot record

10 affect the actual data inside the hard drive of the

11 computer?

12 A. Very generally when you're talking about viruses

13 it depends upon the virus. I imagine there are viruses that

14 can affect the master boot record and also affect the data.

15 The Sampo virus I believe the best of my knowledge is one

16 that affects the master boot record and can be taken care of

17 very easily.

18 Q. What did you do when you encountered the presence

19 of the Sampo virus?

20 A. I activated FPROT. I found the virus and then

21 what I did is I asked or I made FPROT rewrite the master

22 boot record, and it did, and then it removed any trace of

23 the virus so the virus is essentially removed.

24 Q. Did you do any research on the Sampo virus?

25 A. I did.

2620 1 Q. And what did you find out about the Sampo virus?

2 A. That it originated in the Philippines, and it

3 only affects the master boot record I believe, it bites up

4 the memory. It affects the diskettes that you place inside

5 of the computer which can later affect other drives. Very

6 basically it was a very simple virus and very easy to get

7 rid of it.

8 Q. Does the Sampo virus affect the text content of

9 any text files?

10 A. To my knowledge and my understanding it affects

11 the master boot record.

12 Q. And is that a separate part of the hard drive

13 from the part of the hard drive where text files and

14 graphics files might reside?

15 A. Yes.

16 Q. During the course of your examination of the

17 computer were you given any information about the computer

18 to take into account as you were working?

19 A. Yes.

20 Q. Could you summarize for us what kinds of

21 information you were given?

22 A. I know very little, if anything, about the mirror

23 image that I received. I have to know something in order to

24 retrieve material that might be relevant in any given case,

25 so I asked for a key word list, and the key word list was

2621 1 given to me by the U. S. Attorney's Office.

2 Q. And can you describe generally what is a key word

3 list?

4 A. It's a list of words that I can do a scan and

5 test text files, erase files and in slack area files or

6 slack areas to check to see if those names may reside

7 anywhere on the disk.

8 Q. A couple of times you've mentioned the term

9 "slack area". Could you tell us what that is?

10 A. You want me to draw, you want me to explain it?

11 Q. Yes. If it would help you maybe we could set up

12 an easel with a poster board and you can draw it out.

13 MR. SNELL: Can everyone see?

14 Q. Mr. Swartzendruber, before you start, let me ask

15 if you could to try to keep your voice up and speak slowly

16 because you're a little bit far from the microphone now, and

17 we have to make sure that everybody in the courtroom,

18 including the men in the glass booth over there can hear

19 what you're saying.

20 A. Okay. What happens is in this particular

21 computer there is eight sectors per cluster. This is the

22 way that DOS allocates the housekeeping. What I'll do just

23 for clarification is I'm going to put four, these should be

24 equal. I'm not a very good artist here. Each one of these

25 represents 512K. Now, on this if we were to, this would be

2622 1 one allocation unit. This would represent one cluster.

2 Actually, let's say that there are four sectors per cluster,

3 four bytes, I'm sorry. What happens is that DOS would write

4 into this cluster, and if we put words like "now, is, the,

5 time." We actually can fit a lot more into that. If DOS

6 went to all four of those sectors in that one given cluster

7 and you erased this file what would happen is is that let's

8 say it came to right here, the next file, so this one is

9 completely erased.

10 When DOS erases a file it doesn't actually take

11 out "now is the time." What it does is it puts a little

12 sigma character up on the file name, and that little sigma

13 character will indicate that that is now erased. Then what

14 happens is that in anything past I believe it's DOS 3.3 it

15 will take the next available cluster. If you shut the

16 machine off and you came back to this cluster of the four

17 sectors, it would see that it's been erased and it will

18 write over it.

19 Well, let's say that you wrote oh, to two of

20 these sectors, you wrote to this sector, to this sector and

21 you had enough data just to go to the midpoint of the third

22 sector. What happens is is that the new file will overwrite

23 this, and it will have other data in it, and then here,

24 memory will buffer out. Whatever is in memory will kind of

25 dump out in this last sector, but this one will remain the

2623 1 same. So what you have is you have the old file, "now is

2 the time," you erased it. DOS saw the little character up

3 here, and let's call the file Time. DOS put this off, put a

4 little sigma character on there, saw the sigma character

5 realized this is unallocated. Now you can come back and

6 write to it. Then what happens is it wrote the new file in

7 the green here, stops here, memory will dump out to here and

8 this last sector that you have this last 512 bytes right

9 here will have the old file in it.

10 So when you do data recovery or you want to do an

11 examination, go back, and you can look at this and you can

12 say, wait a minute, this is not part of this file. This is

13 the remnants of the old file. And a lot of times we use, if

14 we find information, passwords, we find all kinds of things.

15 We find old files names. We find data from old files.

16 Now the thing that happens, too is that the

17 smallest unit that you can write to is one of these sectors.

18 This is our cluster but in this machine that I examined it

19 had eight of these. So you actually had eight of these,

20 five full, so if you start talking about eight of them and

21 you had a small file and let's say the file stopped here,

22 look how much data that you're going to have in the, of the

23 old file. Whatever was left it would draw it all the way to

24 the end.

25 No matter what happens, when DOS writes the file

2624 1 allocation table will, which is another, the file allocation

2 table allots these clusters, and when it allots these

3 clusters it allots them in eight, so no matter what you

4 write, if you wrote 512, all the remaining sectors here are

5 going to be available.

6 If you wrote to here, to four, these are still

7 going to be available. Let's say you've never written to

8 your drive at all before. You've never, never touched it.

9 You wrote your first file. It writes these first four,

10 these will be empty. Now, you've erased this, and you

11 rewrite again all the way to the end, and you fill up all

12 eight of those 512 bytes, so what is that 4096, which is a

13 lot. That should come to 40996. That's a lot of data.

14 Now you've erased it. Again you went to here

15 with your new file. It stops right here, buffers out to

16 memory here and you have one, two, three, four, five

17 available sectors to read, which is a lot of data so you can

18 see most of the big file.

19 Q. Mr. Swartzendruber, let me just interrupt you a

20 second. The five sectors that you've just pointed to is

21 that what you called slack area?

22 A. This is all slack area, everything after the end

23 of the file. Now, there's three things that will create the

24 end of this file. If you've ever seen a directory, in the

25 directory there is a size of a file, and what happens is

2625 1 that it will read the size of the file. When you look at

2 this file it will go to the end. So if it's, let's say,

3 it's a thousand bytes it's going to stop it right in here.

4 Another thing that would stop it is, in these clusters. If

5 you reach a end of file marker and this file allocation

6 table which distributes these clusters.

7 Another thing is the way it used to be is if you

8 had a text file there was the little one A marker that would

9 cause the end of file, but generally that doesn't happen.

10 Usually the thing that happens is that when you end on the

11 directory entry when you see the size of that file and it

12 reaches the end, that stops it, and then anything past that

13 is going to be slack area generally.

14 Q. All right. You want to take your seat again.

15 MR. KULCSAR: Could we have that marked or

16 designated some way, your Honor?

17 THE COURT: Yes.

18 MR. SNELL: 779.

19 THE COURT: All right.

20 (Government's Exhibit 779 marked for

21 identification)

22 MR. GREENFIELD: Is that an aid, your Honor, or

23 is it an exhibit?

24 THE COURT: Oh, it's an aid of course. It means

25 nothing by itself.

2626 1 Q. Now, sir, I think you're going to have to move

2 the microphone back in front of you so that it works.

3 While you were working with the DAT tape that you

4 mentioned earlier did you encounter any problem?

5 A. Yes, I did.

6 Q. Could you describe what happened?

7 A. The tape broke.

8 Q. And what were you doing when the tape broke?

9 A. I was reconstructing the tape on my drive.

10 Q. How many times was it necessary for you to

11 reconstruct the tape on to your drive?

12 A. I probably have done that a total of 30 to 40

13 times.

14 Q. And why is it necessary for you to do it that

15 many times when you're conducting an investigation?

16 A. Because at a given point what I'll do is I'll

17 start accessing the driver and I'll start creating things on

18 the drive that weren't there before, and what I need to do

19 is I need to bring the drive back to its original state so I

20 can examine it.

21 Q. What did you do after the tape broke?

22 A. I repaired it.

23 Q. Did there come a time when you received another

24 tape?

25 A. Yes.

2627 1 Q. And did you then have an opportunity to

2 reconstruct the second tape on to your computer?

3 A. I did.

4 Q. And did you also compare the two tapes that you

5 had been using?

6 A. I did.

7 Q. The contents that is?

8 A. Yes.

9 MR. SNELL: Your Honor, could the witness please

10 be shown Government Exhibit 770 and 771 which are in

11 evidence.

12 Do you recognize those, sir?

13 A. Yes. 771 is the second tape I received. And 770

14 is the first tape, the damaged one.

15 Q. Mr. Swartzendruber, as a result of your work with

16 the computer had you become familiar with the contents of

17 the drive? By "computer" I mean the drive that you

18 reconstructed.

19 A. Yes.

20 Q. And are you familiar with the types of files that

21 are contained on that drive?

22 A. Yes.

23 Q. Could you summarize for us what types of files

24 are on there?

25 A. I saw files related to DOS, Windows. I see text

2628 1 files, graphic files.

2 Q. Did you see any temporary files?

3 A. I saw temporary files.

4 Q. Could you tell us what a temporary file is?

5 A. A temporary file, the ones that I saw

6 particularly were temporary Write files. A temporary file

7 in Write is used and loaded up when you activate Write to

8 save any data that you may currently be working on so you

9 can --

10 Q. I'm sorry to interrupt, could you tell us what

11 Write is? Is that W-R-I-T-E?

12 A. Yes. That's a Windows desktop utility. It's an

13 application, desk top application. It's a mini-word

14 processor.

15 Q. Basically like a typewriter?

16 A. It would be like using any word processor like

17 using a typewriter.

18 Q. I'm sorry. Were you in the middle of an answer?

19 A. Yes. The file, what happens is that when you

20 activate Write, Write will immediately create a temporary

21 file. Any saves that you have in Write will also save and

22 do a temporary file in case you need to edit or undo

23 anything that you've done.

24 Q. And typically in the version of Windows that is

25 on this computer what happens to the temporary file?

2629 1 A. What's supposed to happen to temporary files is

2 that temporary files once you get out of your application

3 they're supposed to delete, they're supposed to disappear.

4 Q. And did that happen in this case?

5 A. Apparently not. There were several temporary

6 files left.

7 MR. KULCSAR: Could we have the last word was

8 dropped, your Honor?

9 THE COURT: "Left."

10 Q. And were those files that you were able to

11 examine?

12 A. Yes, some of them I was able to look at.

13 Q. Now, were all of the temporary files that you saw

14 in the computer text files?

15 A. No.

16 Q. What other kind of temporary files did you see on

17 the computer?

18 A. Some of them were application specific. WINFAX

19 left some temporary files.

20 Q. I'm sorry, is WINFAX a piece of software?

21 A. Yes.

22 Q. Is that a program of some sort?

23 A. Yes.

24 Q. What does that do?

25 A. That's a communication, a fax communication

2630 1 program. You can send and receive faxes through your

2 computer.

3 Q. You say that there were a number of temporary

4 files associated with that?

5 A. Yes.

6 Q. Did you examine those temporary files?

7 A. I did.

8 Q. And were you able to read anything in any of

9 those?

10 A. I don't believe I could.

11 Q. Other than the text file, the temporary file, the

12 graphic files were there also fax files on the computer?

13 A. There were.

14 Q. And just so we're clear, is there a distinction

15 between a temporary file and the other types of files that

16 the computer user can access?

17 A. Yes, there is a distinction.

18 Q. And what do you call the regular type of file

19 that's not temporary?

20 A. In a Write file it will have an extension .WRI

21 generally.

22 Q. Is that considered an active file?

23 A. Yes, it can be.

24 Q. Were there any other applications on the computer

25 that contained files?

2631 1 A. Yes.

2 Q. What else do you remember being on there?

3 A. There were several. I remember games. There was

4 a chess game. There was a I believe PHOTOSTYLER. There was

5 a program called MAGIC. There were several files, active

6 files.

7 Q. Were there any sound files?

8 A. There were.

9 Q. And can you explain to us generally what sound

10 files are?

11 A. It's a file that when you use the proper

12 application that you can play these files and you can hear

13 audio over your computer speakers.

14 Q. Now, Mr. Swartzendruber, do you understand that

15 you're being asked this morning to do a demonstration of

16 certain aspects of the computer?

17 A. Yes.

18 Q. And have you previously been in the courtroom

19 here setting up some of the equipment that we see around us?

20 A. I did.

21 Q. Could you summarize for us what you've done in

22 the way of setting up this equipment?

23 A. I reconstructed from the 4 millimeter DAT tape

24 the 203 meg, megabyte mirror image of the drive that I was

25 initially given. I put that on to my drive, plugged it into

2632 1 this computer.

2 To make it work what I had to do is I had to

3 change a couple of settings to have it work on this

4 equipment, because it came from a Toshiba laptop is my

5 understanding. So I had to make it specific to work with

6 this monitor, which required me just to enter the setup and

7 to change the set up to VGA monitor instead of the Toshiba

8 monitor. I had to go into the system file, and just rem out

9 a statement which means I just nulled a statement out so it

10 wouldn't function, and that was the resume statement, and

11 what I did is I had to change the mouse so the mouse would

12 work with this computer.

13 I also removed the virus from the computer or

14 from the hard drive after I installed the mirror image

15 because every time I reinstall that mirror image that I was

16 given it will install the virus on your computer. So I took

17 that out, also.

18 Q. Did you also install a program that was provided

19 to you on a diskette?

20 A. I did.

21 Q. What was that program?

22 A. That program I took from the government drive.

23 It allows a device driver that allows the monitors in the

24 courtroom to view what's being seen on my monitor, and I

25 believe it's called VETUNE.

2633 1 MR. SNELL: Your Honor, could the witness please

2 be shown what is marked Government Exhibit 358 in evidence.

3 Mr. Swartzendruber, will you take a look at that

4 and tell us whether you recognize that diskette?

5 A. Yes, I do.

6 Q. What is it?

7 A. This disk contains what are believed to be

8 encrypted files and some of the algorithms to break those

9 encrypted files.

10 Q. Is an algorithm basically a computer code?

11 A. An algorithm is a formula that will generate a

12 result with given input.

13 Q. And did you install some of the contents of

14 Government Exhibit 358 on to the computer that's here?

15 A. Yes, I did.

16 Q. When is the last time you tested this stuff?

17 A. Last night.

18 Q. In order to test it what did you do?

19 A. I activated the program.

20 Q. Which program is that?

21 A. I tested the encryption program, but after I

22 installed everything I turned the system on, and then I

23 turned it off to make sure it would function properly.

24 Q. Now, in doing that, turning it on and off, did

25 you change the contents of the computer at all?

2634 1 A. It may have changed a SWAP file. In this

2 particular computer there is a SWAP file. What a SWAP file

3 is used for is to trade memory back and forth, and it's

4 dynamic, it has a tendency to increase, as you use your

5 computer and the memory increases and your needs for the

6 computer increase, it will reach out to that SWAP file and

7 trade back and forth.

8 Well, the SWAP file may grow and it may also get

9 smaller depending upon your need for memory space. When we

10 turn that computer on and off generally what you'll see is

11 it may change the SWAP file. It will almost assuredly,

12 assuredly change the system date and time. Another thing

13 that changes is the group system date and time.

14 A. When you turn the machine off all the little

15 icons when you first turn on Windows like the little Windows

16 inside that contain like games opener applications or

17 whatever those group names will also reflect the time that

18 you've turned off the machine, will give the you the system

19 date and time that you turned it off showing that you exited

20 Windows.

21 MR. SNELL: Your Honor, at this time with the

22 Court's permission I'd like to see if we can turn to the

23 demonstration.

24 THE COURT: Sure, go ahead.

25 THE WITNESS: Would you like me to turn it on?

2635 1 Q. Could you please turn it, on the computer that

2 is.

3 THE COURT: I can only see one of these machines

4 and that's the left one down there which is flopping over.

5 I can also see the computer module here which shows all

6 kinds of stuff. Now they're both showing Microsoft Windows.

7 The prior material did not come up on the other screen.

8 Do you know that?

9 THE WITNESS: Yes, your Honor. The reason that

10 it didn't --

11 THE COURT: I don't care. Fine. I just want

12 everyone to know it. All right.

13 Q. Mr. Swartzendruber, can you explain why the

14 monitors that we have out here didn't show what you were

15 seeing on the monitor that's on the Judge's bench?

16 A. Yes, there is a device driver that causes the

17 monitors to work. The device driver hasn't been loaded yet.

18 MR. GREENFIELD: The picture is no good on our

19 monitor. You can't see it. It's a virus in it.

20 (Pause)

21 MR. GREENFIELD: If I can stand against the wall

22 over there, your Honor?

23 THE COURT: Sure. All right, go ahead.

24 Q. Mr. Swartzendruber, the first thing I think that

25 everybody in the courtroom saw on the monitors was the logo

2636 1 that went by on the screen. Do you remember that?

2 A. Yes.

3 Q. What was that?

4 A. That was the Toshiba Windows logo. It's an OEM

5 product, original equipment manufacture product. They're

6 licensed to distribute Windows under their name.

7 Q. That's Toshiba's license?

8 A. Toshiba, yes.

9 Q. Now, the next thing that we're seeing, which is

10 stationary here is a screen. Could you describe what's on

11 there?

12 A. Yes. It's a little alert box that says portable

13 sound configuration hardware problem. It says portable

14 sound does not respond or is not currently attached to

15 portable port. Do you wish to use portable sound during

16 this Window session? I don't have that device so what I

17 would just click no.

18 Q. Also, do you see what appears to be behind that

19 box that you just read?

20 A. Yes. That's what's referred to as wallpaper.

21 Q. Wallpaper?

22 A. Yes. What you can do in Windows is you can

23 change your desktop to the way that it looks and that's a

24 bitmap graphic. You can go in to activate your desktop and

25 change that to anyone of the other bitmaps that may reside

2637 1 within the program in Windows.

2 Q. Okay. The next thing I'd like you to do is could

3 you tell us whether the computer contains any indication as

4 to any registration of software?

5 A. It does.

6 Q. Can you show us where that is and explain to us

7 how you're getting there as you do?

8 A. Yes, would you like me to move the screen down?

9 Q. Oh, yes, could you, please.

10 A. I'll activate. Now what I'm doing is there is a

11 driver, I created this directory, DRV, and what I need to do

12 to change the screen. There should bring yours down so you

13 can see the top.

14 Q. Can you explain to us why it's necessary to make

15 that adjustment for this display?

16 A. This equipment that I'm not familiar with, but

17 apparently what happens is that this particular program will

18 cause my display to lower so you can see it in the full

19 screen display on the monitors. This was installed from the

20 government drive.

21 Q. By "the government drive," do you mean the

22 computer that was originally in place before you made your

23 installation?

24 A. That's correct.

25 Q. Now, at this point could you retrieve for us a

2638 1 screen that shows the registration information for the

2 Windows software?

3 A. I'll activate the Program Manager, and in the

4 Help you go down to about Program Manager and it should give

5 you the indication who this license is. As you can see

6 right here this product is licensed to ADAM QASIM AS LT.

7 MR. SNELL: Your Honor, at this point may the

8 witness please be shown what has been marked Government

9 Exhibit 773 for identification.

10 Q. Mr. Swartzendruber, is that -- withdrawn.

11 Do you recognize that exhibit?

12 A. It looks like one that I printed out.

13 Q. And is it an enlargement of something that you

14 printed out and supplied to the government?

15 A. Yes, that could be the same thing.

16 Q. Does it fairly and accurately show what is

17 depicted on the screen in the window with respect to the

18 Windows software registration?

19 A. In the About Program Manager Window, yes.

20 MR. SNELL: Your Honor, the government offers

21 773.

22 A. With the exception we're running on a different

23 machine so you're going to see different memory in the

24 system resource allocation. The product that we're showing

25 here is a memory is 26702, and the system resources are 85

2639 1 percent free, and on the one that was printed out on my

2 computer is it's larger on the memory and smaller on the

3 system resources.

4 Q. Is Government Exhibit 773 an enlargement of a

5 printout that you made in connection with your report in

6 this case?

7 A. Yes.

8 THE COURT: All right.

9 (Government's Exhibit 773 received in evidence)

10 Q. Now, Mr. Swartzendruber, I'd like you to turn now

11 to the text file that you mentioned earlier and could you

12 show us how we get there within the computer program that

13 we're in now?

14 A. I'll close out of the Program Manager, go into

15 the accessory groups. These are the groups that I was

16 referring to, all the application, Games, World Atlas, go

17 into the accessories group. I double click, I activate

18 Write by double clicking which is the small word processing

19 program.

20 This is called a maximized or maximized window.

21 And then what I'll do is go to file, and I'll open and it

22 opens on the file name that's called the Wild Card, the

23 asterisk period, that's the three-letter extension, WRI.

24 Anything that's within that subdirectory, the Windows

25 subdirectory with the WRI extension will be shown under file

2640 1 names. And down here it says list types of files, asterisk

2 period in the C directory.

3 Q. Is this what the computer automatically goes to

4 when you access those files?

5 A. Yes. Let me, this is the C drive, C directory.

6 Yes, that's what it will do. It defaults to the Windows

7 directory.

8 Q. Now, are there any other files than the ones that

9 you've just scrolled down in the box on the left and shown

10 us, text files that is?

11 A. There are.

12 Q. Could you show us where they are?

13 A. What you can do is click the list files and you

14 can see text files. The ones that are on here are text

15 files. Again, they use the asterisk convention, dot TXT so

16 if I click that it's going to bring up all the text files

17 which doesn't necessarily mean that those are all the text

18 files. It just means that those are the ones with the

19 extension TXT.

20 Q. Could you just scroll down the listing of the

21 text files and show us the entire listing?

22 A. There's the top, and as I scroll down there's the

23 bottom.

24 Q. Now, do you see a file on there that is called

25 TRAQUAQ.TXT?

2641 1 A. I do, it's right here.

2 Q. Could you retrieve that for us and show it to us.

3 A. Yes, I'll click it. Okay. And it comes up and

4 says Bojinka.

5 MR. SNELL: Your Honor, at this time I'd like to

6 ask everyone to turn to Government Exhibit 355 which I

7 believe has been passed out to the jury and turn to page 7.

8 And if I might approach the witness with another exhibit it

9 has been marked for identification Government Exhibit 778.

10 THE COURT: That's the same printout.

11 MR. SNELL: I think with one minor exception,

12 your Honor.

13 Q. Mr. Swartzendruber, do you recognize Government

14 Exhibit 778 for identification?

15 A. I do.

16 Q. What do you recognize it to be?

17 A. The file that we're looking at C:TRAQAQ.TXT.

18 Q. Is there anything additional on the poster that's

19 being held before you that does not appear on the computer

20 screen?

21 A. It appears to be the same one.

22 Q. Let me direct your attention to the top of the

23 page, the very top?

24 A. Oh, with the exception of the caption.

25 Q. And do you know how that got there?

2642 1 A. Yes. I believe I printed that out.

2 MR. KULCSAR: Your Honor, could we read back the

3 last answer?

4 THE COURT: I believe I printed that out.

5 Q. When did you do that?

6 THE COURT: The question is, when did you do

7 that?

8 THE WITNESS: I think, your Honor, I believe it

9 was two nights ago.

10 Q. What was the information that you put up there?

11 A. I put the directory that it was located, first of

12 all the drive, the subdirectory, the file name, and the date

13 either creation or modification of the file, and the time of

14 either the creation or the modification of the file.

15 Q. Where did you get the date and time information

16 from?

17 A. From the subdirectory information.

18 Q. And is that stored within the computer?

19 A. It is.

20 MR. SNELL: Your Honor, the government offers

21 778.

22 THE COURT: Mark it in.

23 MR. KULCSAR: Your Honor, could we just have the

24 record reflect what the date is?

25 THE COURT: Sure. It's dated 9/19/94, 12:02 a.m.

2643 1 I just passed my eye test.

2 (Government Exhibit 778 received in evidence)

3 Q. Now, Mr. Swartzendruber, if we could return to

4 the computer, call up another file at the file manager --

5 A. Do you want it up in the Write file?

6 Q. The file I'd like to you retrieve is called

7 OBAID.TXT. Do you see that in there anywhere?

8 A. Okay, we'll open, I'll go to the text files, and

9 there's OBAID.

10 Q. Could you scroll down that and show us the entire

11 file.

12 MR. SNELL: Now, your Honor I'd like to ask the

13 witness to be shown Government Exhibit 774A and B.

14 Q. Mr. Swartzendruber, could you tell us whether you

15 recognize those two exhibits, 774A and B?

16 A. Yes.

17 Q. What are they?

18 A. They're representations of the printout that I

19 did at the same time as the other text file, and I also put

20 the label up at the top indicating the drive, subdirectory

21 file name, date and time of either creation or modification.

22 MR. SNELL: Your Honor, the government offers

23 774A and B.

24 THE COURT: Mark it in.

25 (Government's Exhibits 774A and 774B received in

2644 1 evidence)

2 MR. SNELL: I'd like to ask if everyone could

3 turn to page 4 and 4A of Government Exhibit 355 of the

4 booklet.

5 Now, Mr. Swartzendruber, could you pull up

6 another text file ZYID.TXT.

7 Now, your Honor, I'd like to show the witness two

8 more exhibits, 775A and B.

9 Do you recognize those sir?

10 A. Yes. This appears to be another file I did the

11 same day, and with the same caption and conventions at the

12 top with the drive, subdirectory and the file name, date and

13 time of creation, modification of the file. It's the same.

14 MR. SNELL: Your Honor, the government offers

15 775A and B.

16 (Government's Exhibits 775A and 775B received in

17 evidence)

18 MR. SNELL: I'd like to ask if everyone would

19 please turn to pages 5 and 5A in Government Exhibit 355.

20 Could we put up on the easel now, Government

21 Exhibit 774A.

22 Mr. Swartzendruber, would you please just read to

23 us what the date is indicated on the top of the exhibit?

24 A. The date is 9/17/94.

25 Q. Is there a time?

2645 1 A. The time is 1:00 p.m.

2 Q. Now, if we could do the same with 775A. Put that

3 up on the easel.

4 A. The date is 9/16/94 and the time is 11:14 p.m.

5 Mr. Swartzendruber, did you in your study of this

6 computer notice any files that showed material similar in

7 appearance to the material in the two files that we've just

8 been discussing?

9 DEFENDANT YOUSEF: Objection to the form, your

10 Honor.

11 THE COURT: All right. I'll let it go. Go

12 ahead.

13 A. Yes.

14 Q. Where did you see such files?

15 A. I saw some of the remnants of these files in

16 temporary file.

17 Q. Could you demonstrate that for us?

18 A. Yes. You have one in particular that you want me

19 to show on here?

20 Q. Sure. First of all, could you tell us how we get

21 to the temporary file from where we are right now?

22 A. What I have to do is change the extension in the

23 file name, and it will come up with all the temporary file

24 names.

25 Q. By the extension, do you mean the letters TMP

2646 1 following the period?

2 A. That's correct.

3 Q. Now, would you find for us, please, a file called

4 WRI3402.TMP.

5 A. It's right here.

6 Q. Can you pull that up?

7 A. Yes.

8 MR. SNELL: Your Honor, could everyone please

9 turn to pages 6A and 6B of Government Exhibit 355.

10 Q. Mr. Swartzendruber, would you please scroll

11 slowly down the file so that we can see the whole content.

12 Now, if you could go back to the top. There are

13 a number of sections on the screen that we see where there

14 are some lines going across or characters strung across the

15 screen. Do you see those?

16 A. I do.

17 Q. Do you understand what those are?

18 A. It could be a variety of things. It could be

19 default characters. It could be breaks, page breaks. This

20 down here looks to me that if you were to look at other

21 temporary files or create some that it's pretty indicative

22 of adding to a file and saving that file. This would be a

23 temporary file that would be saved, so you can undo and

24 edit. You might do another save. When it's saved might

25 append some information to it and that's what could have

2647 1 happened here. This is kind of indicative.

2 Q. Do you have any theory based on your study of

3 this computer and your knowledge of computers in general as

4 to how this temporary file was created?

5 A. At one time there should have been an actual file

6 created, and what that did is when they activated Write it

7 creates the temporary file. Then when you do your save and

8 save as, as your saves as you continue to append to your

9 document it will save the additional information as needed.

10 When you close your document whatever this may have been

11 called, let's call it test.10, if you would close that out

12 then in theory this should have disappeared.

13 Q. You say in theory?

14 A. Yes.

15 Q. Why didn't it?

16 A. A variety of reasons. Usually the most, the

17 response from Microsoft traditionally when this occurs is

18 that there had to be an abrupt shutdown from Windows which

19 meant that somebody clicked the off button is what could

20 have happened, and what it did is it caused that file to

21 save and the program was unable to erase itself.

22 Q. Now, does this file have a name?

23 A. The file does have a name.

24 Q. How was that name assigned?

25 A. Typically a temporary file will have the tilde.

2648 1 There will be a three-letter extension for whatever the

2 document may be, and you'll see a lot of

3 application-specific documents --

4 Q. I'm sorry to interrupt, sir. Could you make your

5 adjustment again and bring that down a little bit lower,

6 because I don't think it's completely visible, the blue line

7 on the top of the TV monitor where you're pointing. Yes.

8 A. Is that okay?

9 Q. That's perfect.

10 A. What happens is there a three-letter extension

11 and this, the next four alphanumeric characters are a

12 default set that's created by an algorithm, that bounce off

13 the day and the time to the hundredths of a second which is

14 memory resident of hundreds, and they'll assign this number

15 and then the .TMP so that tells you it's a temp file. So

16 this is a default that's given from actually from DOS.

17 Q. I'm sorry, in layman's terms does that mean that

18 the computer names the file?

19 A. The computer names the file.

20 Q. Is there a time and a date associated with this

21 file?

22 A. There is.

23 Q. Could you show us that?

24 A. What I'm going to do is I'll have it activate all

25 files. I'll go to Windows. I'll ask it to show all file

2649 1 details which will give the time and date. That was 3402?

2 Q. Yes.

3 A. It shows that the file size is 7,552 bytes

4 created or modified on 9/16/94, and the time was 1:55.34

5 p.m., which breaks it down into seconds, and what you don't

6 see and it stays memory resident, and it disappears at the

7 hundreths of a second.

8 Q. Is there a way for you to read what the hundredth

9 of a second reading would be?

10 A. No, I talked to the engineer that -- no.

11 THE COURT: Okay.

12 MR. SNELL: Just curious, your Honor.

13 Q. Mr. Swartzendruber, you also referred to some

14 graphics files. Could we move to those?

15 A. Yes. Do you want those brought up under the

16 program, the viewer?

17 Q. Whichever way you think is best for us to see it.

18 What are you doing here?

19 A. I'm activating a program that was in the computer

20 called PHOTOMAGIC.

21 Q. PHOTOMAGIC?

22 A. Yes. Now, I'm going to open the files and it

23 defaults out to all the TIFF file which show the extension,

24 these are all graphic files.

25 Q. Can you show us how many there are there.

2650 1 Now, I'd like you to pull up for us, if you

2 could, a file that's titled XAMPLE.TIF. You see that there?

3 A. Right there? And I'll activate it.

4 MR. SNELL: And, your Honor, if everyone could

5 please turn to page 11 of Government Exhibit 355.

6 Would you now please pull up a file called

7 XAMPLE2.TIF?

8 A. I'll open it.

9 Q. Now, sir, would you please pull up a file called

10 XAK.TIF.

11 MR. SNELL: And if everyone could turn to page 12

12 of the booklet.

13 Sir, would you now retrieve file XAKI.TIF.

14 A. XAKI?

15 Q. Yes.

16 A. Okay, I find it. I'll open it.

17 MR. SNELL: If everyone else would turn to page

18 13. Finally on the graphics would you please turn to a file

19 called FILES/WINCLIP.TIF?

20 A. I believe on that one I'm going to have to

21 activate another program to get into it. I can try here.

22 That was in the which directory?

23 Q. WINDOWS/FILES/WINCLIP?

24 A. Windows MAGIC files?

25 Q. Right. I?

2651 1 A. I found it here.

2 MR. SNELL: If everyone could turn to page 14.

3 Can we go back now to the other directory area

4 and retrieve a MAGIC file called Z9.TIF.

5 A. Okay, here's Z9. I'll open it up.

6 Q. Can you enlarge that at all so it's easier to

7 read? While you're doing that, if everyone can turn to page

8 15. Now, another MAGIC file, XP009831.

9 A. I'm sorry, which one?

10 Q. XP009831.

11 A. Does that have a TIF extension?

12 Q. No extension.

13 A. Okay. What I did is I just viewed the X key and

14 then I used the wild card anything with an XP on it so that

15 will enable me to find the file quickly, and I'll activate

16 it.

17 Q. You know the purpose of that little clock that we

18 see on the screen?

19 A. It's to keep you amused while the program takes

20 its time.

21 Q. Can you make that a little bit larger for us?

22 A. Yes.

23 Q. Could you now please retrieve a file X8.TIF.

24 And if everyone could turn to page 16.

25 A. X8.

2652 1 Q. X8.TIF.

2 A. You want me to enlarge this?

3 Q. Would you please.

4 Would you please do the same with the file called

5 X6.TIF.

6 If everyone could take a look at page 17.

7 Can you also retrieve X4.TIF.

8 Now, would you please retrieve XD2TIF. If

9 everyone will please turn to page 18.

10 A. I have to use another viewer for this.

11 Q. What do you mean by that?

12 A. Apparently it's not compatible with this image

13 file. There is another one that we have located in

14 PHOTOSTYLER should open it which was resident on the

15 original. I'll hit the maximize button. Do you want that

16 larger?

17 Q. Could you, please.

18 Now, if you would do the same, retrieve XID.TIF.

19 Could you now retrieve a file that's called

20 IDD.BMP.

21 If everyone will please turn to page 19 of the

22 booklet, and also look at the copies of Government Exhibit

23 321B that have been distributed.

24 A. I'm sorry. It's IDD dot?

25 Q. IDD.BMP. And the copy of the exhibit that I just

2653 1 referred to 321B is a loose insert in the booklet at the

2 very end.

3 A. This is in the Windows subdirectory so I'm out of

4 the MAGIC subdirectory, and there is IDD dot. I'll open it.

5 View the actual view.

6 Q. Are you familiar with the three-letter extension

7 BMP?

8 A. Yes, that means bitmap graphic.

9 MR. KULCSAR: Could we hear the last part of the

10 answer?

11 THE COURT: Bitmap graphic.

12 Q. Mr. Swartzendruber, will you now pull up 11.BMP.

13 A. The very top and I'll open it, maximize it, and

14 then I'll make it into the actual view.

15 MR. SNELL: Again, if everybody could take a look

16 at the copy of Government Exhibit 321B.

17 Your Honor, we're going to be a little while

18 longer. Would this be an appropriate time to take the

19 morning break?

20 THE COURT: Sure. All I know, guys, you got to

21 take out the easel.

22 (Continued on next page)

23

24

25

2654 1 (Jury not present; witness not present)

2 THE COURT: Do you have a clue as to how much

3 longer we'll with be?

4 MR. SNELL: I think we probably have about maybe

5 30 minutes still of demonstration, and then probably about

6 an equal amount of time of testimony.

7 THE COURT: All right.

8 (Recess)

9 (Continued on next page)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2655 1 (Jury present)

2 THE COURT: Tell me, Mr. Swartzendruber, some of

3 those pictures we saw on the computer screen, were they done

4 from pictures -- people. We saw pictures of people. Were

5 they done from pictures or were they done from real people,

6 if you know?

7 THE WITNESS: I don't know. It could have been

8 representation from -- or they could have been taken from a

9 camera, or what they could have done is scan it in. I don't

10 know.

11 THE COURT: When you say scan it in, you take a

12 picture and scan the picture and that's him?

13 THE WITNESS: Essentially.

14 THE COURT: You said a map bit or a map bit, what

15 you referred to, this thing. Is that what is on the screen

16 now?

17 THE WITNESS: Bit map. It is a type of graphic.

18 THE COURT: Is that the type of thing that you

19 can take and move into one of those cards that we saw

20 floating around before?

21 THE WITNESS: That would be possible.

22 THE COURT: But it doesn't get printed out

23 normally that way?

24 THE WITNESS: You could print this map out just

25 like this.

2656 1 THE COURT: You can print it out, OK. Go ahead.

2 BY MR. SNELL:

3 Q. Mr. Swartzendruber, is it possible actually to

4 create an ID card using a computer software like this one?

5 DEFENDANT YOUSEF: Objection.

6 THE COURT: There was an objection. I will

7 permit the question. Go ahead. Can you do it?

8 A. Yes, I believe you can.

9 Q. I am sorry.

10 A. Yes, I believe you can.

11 MR. SNELL: Could we now turn to the text -- I am

12 sorry -- the Write area of the computer and retrieve another

13 file.

14 A. I will get into accessories and activate Write.

15 I will maximize the window again. I will open the

16 directory, the Windows directory, and now I have the Write

17 files.

18 Q. The file I would like to see if you can find is

19 called MAD.TIT.

20 A. That may be in another directory. I believe --

21 oh. It is in the Windows directory. What happens is, I was

22 still looking for the WRI extensions. So what I will do is,

23 I will type in the extension and pull it up, and I will

24 activate it.

25 MR. SNELL: Your Honor, if everyone can turn to

2657 1 page 8 of Government's Exhibit 355.

2 THE COURT: Yes.

3 Q. Mr. Swartzendruber, on the material that is being

4 shown on the screen now, do you remember seeing that in any

5 other files on the computer?

6 A. I do.

7 Q. In what other kind of file did you see that

8 material?

9 A. I believe this was in a text file, or it was in

10 an encrypted file. I am trying to recall.

11 Q. Were there encrypted files on the computer that

12 you saw?

13 A. There were files that were determined to be

14 encrypted, yes.

15 Q. Were you provided with the software previously

16 referred to, I believe, as Government's Exhibit 358 in

17 connection with those encrypted files?

18 A. I was.

19 Q. Do you have that diskette there in front of you?

20 A. It is in my hand.

21 Q. Have you previously used the diskette,

22 Government's Exhibit 358, to decrypt files that are on the

23 computer?

24 A. I used a program on the diskette called DEC.EXE

25 to decrypt encrypted files on the computer.

2658 1 Q. Let me ask you now, if you could, to run that

2 program that you just mentioned against a particular file,

3 but first I would like you to retrieve that file and show us

4 what it looks like in its present form, without using the

5 diskette. The name of the file is MADD.TXT.

6 Is that in the Windows --

7 A. It is in the DOS subdirectory. What I did was

8 change to the DOS subdirectory, and MADD.TXT resides there.

9 I click it, OK. It asked me whether I wanted to convert

10 this to a Write format, which means it does not recognize it

11 as a Write document. So I will put no conversion, take it

12 as a text document, and you have a bunch of strange

13 characters.

14 Q. Without using the diskette, are you able to make

15 this file intelligible?

16 A. No.

17 Q. Now what I would like you to do is, using

18 Government's Exhibit 358, could you make this into something

19 intelligible?

20 A. OK. I will shell out to DOS mode. I will go to

21 main and I will activate the DOS prompt, and you should be

22 able to see that on your screens. It is in -- we will go to

23 DOS. CD is a command to change to the DOS directory. Here

24 are the text files. The MADD.TXT is the third from the

25 bottom.

2659 1 What I will do is, I will run the program which I

2 have already installed in here, the DEC program.

3 Q. I am sorry. Before you leave that, could you

4 just read where there is a time and date stamp for the file?

5 A. The MADD shows 8,711 bites. It was created or

6 modified on 11/19/94, at 6:10 p.m.

7 What I am going to do is, I am going to create a

8 file -- your in file will be the encrypted file and you have

9 to create an out file to name this where it is supposed to

10 go to with this intelligible form. I will create MADD.BRK,

11 but to show one doesn't exist, it shows file not found

12 because it doesn't exist yet. I will create this one. What

13 I do is, I run a program called DEC, which is right there,

14 and I will run DEC, and then you have to run the in file,

15 which is MADD.TXT, and your out file will be MADD.BRK.

16 There, it has been decrypted.

17 Q. Before you show us, just so we are clear, is the

18 DEC file or program that you just ran already loaded into

19 the computer?

20 A. Yes, it was.

21 Q. When did that happen?

22 A. I did that last night.

23 Q. How did you do it?

24 A. I took Government's Exhibit 358 and just copied

25 it into both the Windows and the DOS directory, I believe.

2660 1 Q. Can you show us now what the result is of running

2 this?

3 A. Now I will run the -- I will show you that one

4 file was just created, that MADD.BRK. I will exit back into

5 Windows. I will go to the Write, W-R-I-T-E, and I will open

6 the DOS directory where this resides. I will put in a

7 3-letter extension for the BRK, which will pull it up, and

8 there is the MADD.BRK which we just created, and it will ask

9 me if I want to convert it to Write format. I will put no

10 conversion, I will maximize it, and that is the decrypted

11 file.

12 MR. SNELL: Your Honor, could everyone turn to

13 the loose exhibit that is in the booklet, marked

14 Government's Exhibit 357.

15 Q. If we could slowly scroll through the document so

16 everybody gets a chance to look at it, both on the screen

17 and where they are looking.

18 A. I will start back at the top.

19 (Pause)

20 Q. Mr. Swartzendruber, can you show us both the file

21 MAD.TIT which you had a few minutes ago and the first

22 portion of the decrypted file, MADD.BRK, simultaneously so

23 that we can compare them?

24 A. I will see if I can accomplish that.

25 I am going into the DOS directory. I will ask it

2661 1 for the text files. There is MADD.TXT. I will do no

2 conversion. These are the same two files. They are both at

3 the top.

4 Q. And now could you, after you have had a chance to

5 look at this, substitute for the encrypted version,

6 MADD.TXT, the file MAD.TIT that you had before?

7 A. For a MADD.TXT?

8 Q. Yes.

9 The file actually that I was asking you for was

10 MAD.TIT.

11 A. I am sorry. I am going to the DOS directory.

12 MADD --

13 Q. MAD, one D, dot TIT.

14 A. I am sorry. I've got it. That was in the

15 Windows directory. MAD.TIT. I will open that one.

16 Q. If you could just leave that there for a moment.

17 Now, if you would, I would like you to call up a

18 couple more temporary files.

19 THE COURT: Do you want these windows left open

20 here?

21 MR. SNELL: No, we can close these up. Thank

22 you, your Honor.

23 Q. And the files that I am looking for are, first of

24 all, tilde WRI3976.TMP.

25 A. OK, I have now found tilde WRI.TMP. I will not

2662 1 convert to Write format.

2 MR. SNELL: And if everyone could take a look at

3 page 10 in Government's Exhibit 355.

4 Q. Mr. Swartzendruber, do you see those boxes that

5 appear on the file on the screen?

6 A. I do.

7 Q. What are those?

8 A. I see that again the boxes at the top, the four

9 at the top and the ones at the bottom, I have seen this when

10 I have experimented with Write temporary files, and it

11 appears they are either appended or they have been worked

12 upon, and they are prepared for a save-back in case

13 something has been deleted or you want to undelete your

14 document.

15 Q. Now would you retrieve, please, leaving this

16 window open, retrieve WRI1A123, again, a temporary file.

17 A. That was WRI --

18 Q. -- 1A123.

19 A. This is the last time I will ask.

20 Q. WRI1A123.TMP.

21 A. I don't want to miss it. 123?

22 Q. Yes. It is WRI1A.

23 I am sorry, I am asking for the wrong file.

24 WRI1A13.

25 A. OK, I found it.

2663 1 Q. Can you put it right below the other one, which

2 is WRI3976.TMP.

3 Mr. Swartzendruber, based on your study of this

4 computer, do you have an opinion of how these two files that

5 we are looking at now were created?

6 A. There was an original document, and these

7 temporary files were saved as a result of the creation of

8 that original document, and what I would do to further

9 confirm that is to take a look at the times to see if the

10 times were in sync.

11 Q. Could you do that.

12 A. I will call the file manager up and we will view

13 by date, so we will do a date sort. Is that the one we have

14 right there? It was the 1A13?

15 Q. Yes, that is the one that I asked for.

16 A. And the other one?

17 Q. 3976.

18 A. That is right above it. So what we are showing

19 is, we are showing the larger file is 1,536 bytes on

20 11/7/94, the creation date, 09:48:18, the time, 9:48, and

21 then the one above it is the 3976.TMP, 256 bytes, 11/7/94,

22 also at 9:48 a.m. So they were both created at 9:48 a.m.

23 Q. Does the fact that they were both created at the

24 same time tell you anything?

25 A. That they most likely came from the same original

2664 1 document, that there is an original document where this

2 information resided at one time.

3 Q. Mr. Swartzendruber, I would like you to pull up

4 another text file for us. The extension is TXT.

5 A. That would be the Windows directory?

6 Q. Yes, the very first file, I believe,

7 ABUHAMAM.TXT.

8 A. Yes.

9 Q. If you could pull that up and if everyone could

10 take a look at page 2.

11 A. The maximizer.

12 MR. KULCSAR: Your Honor, could we just have the

13 number on the file, not the page number?

14 MR. SNELL: You mean the file name?

15 ABUHAMAM.TXT.

16 Q. Also, Mr. Swartzendruber, could you pull down the

17 screen the way you did before so that the top line is

18 visible?

19 A. Yes.

20 Q. And can you show us a screen where the date of

21 this particular file is shown.

22 A. I will get back into my file manager. That was

23 in the Windows directory, wasn't it?

24 Q. WINDOWS\ABUHAMAM.TXT.

25 A. Here it is. What we will do then is, we will

2665 1 sort by date and we will view all file details, and this is

2 the file that shows 2,006 bytes, created or modified on

3 11/19/94, at 10:29 p.m.

4 Q. That is 11/19/94?

5 A. 11/19/94. You can see it highlighted. I will

6 take the highlighting off. It is the one directly above the

7 blue line.

8 Q. Mr. Swartzendruber, you also mentioned that there

9 were some were fax information or files, I think, in the

10 computer?

11 A. There are.

12 Q. I would like to ask you to retrieve a couple of

13 those files.

14 A. Where do you want them taken from? There are two

15 different directories.

16 Q. Could you show us the fax area of the computer?

17 A. Yes. What I will do is, I will just show you in

18 the file manager, it is WINFAX. That shows that there is a

19 directory. I will double click on that and that will bring

20 it up, shows another subdirectory called Data. Here is a

21 fax file, here is FAXX001.FSX. To make those operate, you

22 have to run the program.

23 Q. Which program do you mean?

24 A. WINFAX.

25 Q. What does WINFAX do?

2666 1 A. WINFAX is a fax communication program. What you

2 do is, you have a modem connected to your computer and you

3 are able to send faxes to those faxes that are compatible

4 with your modem.

5 Q. Do you need a telephone to do that?

6 A. No.

7 Q. How does it work?

8 A. It works through the modem over public telephone

9 lines, to whatever -- if there is a fax that resides at a

10 distant location, you can call that fax up and send them a

11 fax in a fax format, and you can receive them also.

12 Q. Can you within the data subdirectory retrieve a

13 file called 1865001.FXD?

14 A. Within the data directory?

15 Q. Yes, 1865 --

16 A. -- 001.FXD.

17 Q. That's it.

18 A. What I have to do if it isn't associated, the

19 little blank icon here, the bird at the top shows the lines.

20 It means it is associated with an application that will make

21 it operate. I can't, unless I associate it from here, make

22 this operate. What I can do is go into the fax viewer in

23 WINFAX and call that up.

24 Q. Can you do that.

25 A. Yes.

2667 1 Now activating WINFAX. The first thing that

2 happens when you activate WINFAX, comes up with the

3 registration screen. I will just cancel it. The reason it

4 comes up with an error message is that there is no modem

5 connected to it. It is trying to do something and it can't.

6 It says the port is in use through another program. I will

7 click U, do an open, and it was an FXD extension, so I will

8 have to change that to FXD and hope I can remember which one

9 it was. 1865001?

10 Q. That's it.

11 A. I will activate that. It is processing it, and

12 this is the contents of the FXD. I can scroll up and down

13 if you like.

14 Q. And if everyone would please take a look at page

15 3 of Government's Exhibit 355.

16 Is it possible to make that a little bit smaller

17 so that we can see the whole thing in one screen?

18 A. Yes.

19 THE COURT: Since this machine seems to time

20 stamp everything else, would it show if that was sent on a

21 fax?

22 THE WITNESS: It is supposed to, your Honor, yes.

23 THE COURT: Could you give the time and date and

24 find that out?

25 THE WITNESS: There is a log in there, yes, your

2668 1 Honor.

2 Q. Can you do that?

3 A. I can bring up the log, yes. Here is the send

4 log, activate the send log. It shows the date, the time,

5 the fax number, the application it looks like it was created

6 in. Here looks like a complete fax. The application used

7 was a Write file. We can view that. Apparently this was

8 faxed, this document.

9 THE COURT: The date again, what was it?

10 THE WITNESS: This was September 5, 1994. It

11 says 5:12, 17:12, and that was the destination number.

12 Apparently there were a lot of error messages in here.

13 There were a lot of errors when they tried to send, whoever

14 used this application.

15 Q. Just so we are clear, is that file that you are

16 talking about now the one we were just seeing on the screen,

17 or is that a different file?

18 A. It is a different one.

19 Q. Is there a similar log entry for the one we were

20 just looking at, which was 1865001?

21 A. No. What I see here in the log are several error

22 messages and one complete fax, and the one complete fax is

23 different than the one that we just observed.

24 Q. And the one that is complete, what is the date

25 information on that?

2669 1 A. The date is September 5, 1994, it says 1712

2 hours, 5:12 p.m.

3 Q. And the telephone number, can you read that?

4 A. Looks like the destination is 02-812-7174.

5 Q. If you could pull up another fax file, this is in

6 the Windows directory. The title is FAX.FXS.

7 A. I believe I have looked at this one before and I

8 don't think this is a legitimate WINFAX document.

9 Q. What do you mean by a legitimate WINFAX document?

10 A. I don't believe it has been converted for WINFAX.

11 It is showing an invalid image file. It is still a Write

12 document. So what we have to do is go to Write, and I will

13 activate Accessories and Write. I will open up the

14 document. I will ask for an FXS extension and it pulls it

15 up, and then when I activate it, it shows that it is a Write

16 document, pulls it into Write, to minimize the --

17 Q. And can you give us the time and date information

18 for that document?

19 A. I will go to DOS.

20 Q. Remind us, please, what it means to go to DOS.

21 A. I am going to the DOS prompt. I am getting out

22 of the graphical user interface, which is what Windows is,

23 and there it is. So I run the directory for any FXS

24 extensions. What I am showing is FAX.FXS. It is 1024 bytes

25 created or modified on 9/1/94, and the time is 3:49 p.m.

2670 1 THE COURT: Can I make sure of something. The

2 document that we saw before was never sent, the fax, right?

3 THE WITNESS: I don't know if it was or not, your

4 Honor. The log indicates there was only one complete

5 document sent.

6 THE COURT: And it wasn't this one?

7 THE WITNESS: That is correct, your Honor.

8 THE COURT: This thing never even got out of

9 Write and into the fax mode, so it couldn't have been faxed,

10 right?

11 THE WITNESS: This one appears to me to have been

12 created in Write, and what they would have to do is in the

13 application you pull it in, you pull it into the fax to be

14 sent so it does formatting.

15 THE COURT: So get back to my question. This one

16 was never sent by fax either, right?

17 THE WITNESS: I can't say that, your Honor. I

18 don't know.

19 THE COURT: Through the machine. I am sure they

20 could have taken it, printed it out and run down to their

21 local fax machine and sent it, right?

22 THE WITNESS: Correct.

23 THE COURT: But other than that, through this

24 machine, it would have to go through WINFAX.

25 THE WITNESS: Yes, your Honor, it would.

2671 1 THE COURT: And it doesn't show up in WINFAX as

2 being complete. There is only one complete one there.

3 THE WITNESS: That is correct.

4 THE COURT: Thank you. Go ahead.

5 Q. Another text file, Mr. Swartzendruber, if you

6 could pull up for us in the Windows directory, SID.TXT.

7 A. I will use Write again. I will open, minimize

8 this, I will open, I will get into the text files. SID.TXT.

9 Q. Yes.

10 A. I find SID.TXT, I will activate it, I will

11 maximize the window -- actually what I will do is, let me

12 move it so everybody will see it on their screens.

13 Q. And if everyone would please turn to page 1 of

14 Government's Exhibit 355.

15 Mr. Swartzendruber, you also testified that there

16 were some sound files on the computer, is that right?

17 A. Yes.

18 Q. I would like to see if you could retrieve a file

19 and play it for us, but first let me show you what has been

20 marked Government's Exhibit 772 for identification.

21 Do you recognize that, sir?

22 A. It has my initials on it, and I created a tape

23 recording of those sound files that I was able to locate on

24 the computer, so I assume this is it.

25 Q. Did you provide the tape recording that you just

2672 1 referred to to the government together with your report?

2 A. I did.

3 MR. SNELL: Your Honor, the government offers

4 Exhibit 772.

5 THE COURT: Mark it in.

6 (Government's Exhibit 772 received in evidence)

7 Q. Without resorting to a tape recorder, is it

8 possible to listen to any of the contents of Government's

9 Exhibit 772 through the computer?

10 A. It is.

11 Q. I would like to ask you to demonstrate that for

12 us now with one of the files, if we could.

13 A. What I have to do is, I am running off of one

14 drive right now, which was the mirror image with those few

15 alterations I needed to make to make the system operate. I

16 need to take another drive and use that drive and the

17 drivers within it to activate the sound card. So it will

18 take me a minute just to take the drives out.

19 (Continued on next page)

20

21

22

23

24

25

2673 1 THE COURT: Sure, go ahead.

2 DEFENDANT YOUSEF: I have application, your

3 Honor.

4 THE COURT: For him changing the drive?

5 DEFENDANT YOUSEF: Before it is played.

6 THE COURT: How long will this take?

7 THE WITNESS: It should take about four minutes.

8 THE COURT: OK, ladies and gentlemen, why don't

9 you step outside and as soon as it is done we will pick up.

10 There is no reason to sit here and watch the man do it.

11 (Jury excused)

12 THE COURT: OK, Mr. Yousef, you have an

13 application. I don't care, either one of you make it.

14 MR. KULCSAR: Your Honor, Mr. Snell discussed

15 this with me, I guess two days ago. I am not sure if your

16 Honor is aware of the contents of it, with all the other

17 exhibits and stuff your Honor has had thrust upon him. My

18 understanding is that if it is not this tape it is one of

19 the two tapes being played by the government because the

20 government contends that the voice that the jury will hear

21 is similar, the same or whatever, to Mr. Yousef's voice, and

22 that is the basis of their offer. My understanding of it is

23 that the contents of one of the tapes contains only

24 profanity on it, and I just wanted your Honor to be advised

25 of that in advance, that we would object to that portion of

2674 1 the tape being played. I understand there is another

2 tape --

3 MR. SNELL: I am sorry.

4 MR. KULCSAR: -- which does not contain -- as I

5 understand, the one tape contains fuck fuck fuck fuck fuck,

6 maybe FUC with an accent umlaut, but I think that is what it

7 is.

8 THE COURT: You see it in the movies and you hear

9 it on TV. It is not very shocking any more. It is

10 unfortunate but cussing in New York any more is no longer

11 the great delight it was in Victorian days.

12 However, I gather the government wants to play it

13 sanitized.

14 MR. SNELL: Your Honor, actually what we plan to

15 do is play a portion of one of the files that to my ears

16 didn't contain any profanity at all. So although the tape

17 that Mr. Kulcsar is referring to, or the file is on the tape

18 that is in evidence now, we are not planning on playing that

19 at this point.

20 THE COURT: Does that do it?

21 THE WITNESS: That's it, your Honor. I am ready.

22 MR. SNELL: Your Honor, if I could just suggest

23 that we put one of the speakers on the rail in front of the

24 witness, it will be close enough to the mike so that the

25 translators can hear.

2675 1 THE COURT: Sure. There is speaking going on, is

2 what I gather you are telling me.

3 MR. SNELL: That is right.

4 (Jury present)

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

2676 1 THE COURT: Before we do anything else,

2 Mr. Swartzendruber, number one, you changed your drive in

3 this. I assume that is like almost changing a computer.

4 But in the computer in question, is it necessary to change

5 the drive to listen to the sound?

6 THE WITNESS: Yes, your Honor.

7 THE COURT: It is?

8 THE WITNESS: I can't listen to it with the

9 architecture of this machine. I have to install drivers in

10 it that will write over the drivers, not on the drivers

11 available to me.

12 THE COURT: I am talking about the machine that

13 this came off.

14 THE WITNESS: They should have a device that

15 plugs into the machine to play this.

16 THE COURT: So you put a speaker someplace or

17 something like that?

18 THE WITNESS: That is correct, your Honor, and

19 that error message that we received at the beginning, with

20 the portable sound?

21 THE COURT: Yes, they said there is no speaker

22 available. Is that what you are telling me?

23 THE WITNESS: Yes, no device connected to make

24 that sound. If there was a device connected, my best guess

25 would be that it would play.

2677 1 THE COURT: You have gotten up something there so

2 the folks can see, an open file. Ladies and gentlemen, we

3 are going to play a little bit of this file for you. What

4 is most interesting is not the content of the file at all.

5 I have no idea what the content is and I don't think the

6 government really cares. The government has a contention as

7 to who is making the noises. I don't know who it is, but we

8 will find out. Maybe we will find out we don't know. That

9 is always a possibility.

10 Go ahead, or, as they say in Hollywood, roll

11 them.

12 THE WITNESS: The judge brought up a good point.

13 I put an extra drive in here. The C drive is my drive. It

14 is actually the government's drive. It has the capacity to

15 hear the sound. It is exactly the same drive that we were

16 hearing earlier. It is exactly the same drive. I will

17 activate CINDY2.LAV.

18 Q. Is that the sound file?

19 A. Correct. Do you want me to start that at 60

20 seconds?

21 Q. Yes, 60 seconds into the tape, if you could.

22 A. You will notice on the right side that I will

23 bring it to 60 seconds. Then I will activate it.

24 (Continued on next page)

25

2678 1 (Tape played)

2 THE WITNESS: That is the end.

3 THE COURT: That is a perfect time. It is 12:30,

4 ladies and gentlemen. Gastric juices begin.

5 (Jury excused)

6 THE COURT: How much more?

7 MR. SNELL: I think probably about 10 minutes

8 more of demonstration and then altogether probably another

9 30 minutes with this witness.

10 THE COURT: All right, 2:00.

11 MR. KULCSAR: Your Honor, it doesn't have to be

12 resolved before lunch, but at some point I want to know if

13 the government is going to have a problem after the witness

14 is finished and our expert Dr. Levanthal having some access

15 to the keyboard or whatever to do things on the computer,

16 when Mr. Swartzendruber is finished.

17 MR. SNELL: I don't have a problem with that,

18 your Honor.

19 THE COURT: Go ahead.

20 (Luncheon recess)

21

22

23

24

25

2679 1 AFTERNOON SESSION

2 2:10 p.m.

3 DAVID SWARZENDRUBER, resumed.

4 (Jury not present)

5 MR. GREENFIELD: Judge, I overheard outside that

6 there is a press or radio report saying that your Honor will

7 not poll the jury, that you will admonish them. I just

8 wanted you to be aware of the latest news flash.

9 THE COURT: God have mercy on me. I guess they

10 are upset with me because I suggested that they are running

11 out of news when they interview each other.

12 MR. KULCSAR: That might have been it, your

13 Honor.

14 (Jury present)

15 THE COURT: Go ahead.

16 MR. SNELL: Thank you, your Honor.

17 (Continued on next page)

18

19

20

21

22

23

24

25

2680 1 DIRECT EXAMINATION continued

2 BY MR. SNELL:

3 Q. Mr. Swartzendruber, after the lunch session ended

4 a few minutes ago, did you make some changes in the computer

5 that you can explain to us now?

6 A. Yes, I removed one of the drives and I

7 reinstalled the original mirror image backup drive.

8 Q. Why was it that you did that?

9 A. Because we have to run some of the applications

10 off the mirror image drive and it wouldn't be possible if I

11 had both drives connected together.

12 Q. By both drives, what do you mean?

13 A. One drive was with the computer -- it is the

14 government's drive. It belongs in the government computer

15 and it had utilities that I needed to -- the sound, such as

16 the sound card that you need to activate the mirror image

17 drive. I don't need that any more so I removed it and I am

18 going to use the mirror image drive exclusively.

19 Q. If you would, would you turn the computer back

20 on, and then I have a few files that I would like to see if

21 you can activate.

22 A. OK, the computer is back on and I am back to the

23 error message, the one that indicates the hardware problem.

24 Q. From here, could you take us to a file that is

25 designated as, I believe you said before, a bit map.

2681 1 A. I will run that off of -- do you want me to run

2 that file?

3 Q. Yes.

4 A. I will use Magic as the viewer. That is Photo

5 Magic.

6 Q. The name of the file that I would like to ask you

7 to retrieve is CENDY, CENDY.BMP.

8 A. I have just found CENDY.BMP and now I will load

9 and activate it.

10 MR. SNELL: And, your Honor, could everyone turn

11 to page 20 of Government's Exhibit 355.

12 Q. Mr. Swartzendruber, you also testified, I

13 believe, that there are some games on this computer, is that

14 right?

15 A. There are.

16 Q. Could you give us some examples of some games

17 that you recall?

18 A. In the games group when you activate it, there is

19 Solitaire, Mine Sweeper, Starwars, and Chess. They put also

20 Atlus, A-T-L-U-S, and then Chemicals, which is a separate

21 application.

22 Q. You said they put that in there?

23 A. Whoever, whoever -- the ones that usually come up

24 with Windows when you do an install are Solitaire, Mine

25 Sweeper. Somebody had to put in Starwars, the Atlus, and

2682 1 Chemicals. They are not included with Windows 3.1.

2 Q. Is Windows 3.1 the software that is in the mirror

3 image?

4 A. Yes, it is version 3.1.

5 Q. In addition to the Starwars chess game that you

6 just showed us, is there another chess game on this

7 computer?

8 A. There is.

9 Q. Could you show us where that is.

10 A. I will exit Windows and run a directory, and you

11 will see fifth from the bottom there is a chess game. So

12 what I will do is, I will change the directory to Chess, run

13 DIR as the directory command, and you will see files in

14 there. The one executable file is Chess, so if I run Chess,

15 it should run. I will activate that.

16 Q. Is that a software, to your knowledge?

17 A. That is a software application.

18 Q. What are you doing now?

19 A. I am just going through these screens. It

20 indicates -- I am not real familiar with this chess game.

21 It just seem seems to me when I look at it that the names

22 and the dates may be games that were played at some previous

23 time.

24 MR. KULCSAR: Objection.

25 THE COURT: Yes, you don't know.

2683 1 THE WITNESS: I don't know.

2 Q. In the directory that you showed us before, was

3 there a file marked CHESS.SAV?

4 A. There was.

5 Q. Can you show us that file?

6 A. Yes. I will go to quit, and there it is at the

7 bottom, 512 bytes on 9/25/94, at 2:13 p.m.

8 Q. Can we see that file?

9 A. I will run it. I will edit it. It may not be --

10 let's do it this way. Let's do a type command.

11 Q. What do we see there?

12 A. I see initials, and I recognize that just because

13 I am familiar with the package too and I know that those

14 also come with the loaded game. The initials are RY and

15 there is a space and an SA.

16 Q. How is that file created?

17 A. It appears to me that when you save a game, that

18 that file is created.

19 Q. And when you say you save a game, who are you

20 talking about?

21 A. Whoever plays the game. If they choose to save

22 the game that they are playing, it will save it and it will

23 save those initials, or it will save a name or whatever you

24 input into the machine so you can at a later date call up

25 the game and reload it.

2684 1 Q. Have you attempted to call up and reload a game

2 in this program?

3 A. Yes, I have.

4 Q. Can you demonstrate that for us?

5 A. Yes. At the top you will see a load game. When

6 you activate that, it should load the game. There is an RY

7 and an SA. It appears that is the game that was saved. If

8 I enter again, that should be the saved game.

9 Q. Mr. Swartzendruber, is there also a piece of

10 software on the computer called Atlas, A-T-L-A-S?

11 A. Yes.

12 Q. Can you show us where that is?

13 A. I have to get back into Windows. Put no. We

14 have an Atlas in the games, and then under DSP solutions,

15 there is a World Atlas.

16 Q. Sir, could you lower the screen again just a bit

17 so that the TV monitors will show the top line.

18 A. Is that better?

19 Q. Yes, that is fine.

20 Could you put the cursor where it says Europe and

21 retrieve that. And would you now direct the cursor to Italy

22 where it says Italy, and retrieve that.

23 Have you previously had a chance to look at the

24 type of information that is in this program?

25 A. Yes.

2685 1 Q. Could you put the cursor where it says

2 information and click there. And now could you go to a

3 section of this file marked parties and political leaders.

4 A. OK, I will activate the window.

5 Q. Directing your attention to -- first of all,

6 could you put the cursor on the section political parties

7 and leaders. And would you highlight for us the first two

8 lines -- actually, just half of the second line up to the

9 close parentheses after the word secretary.

10 A. Yes.

11 Q. Could you enlarge that so it can be seen clearly

12 on the video monitors, and explain to us what you are doing

13 as you do it.

14 A. What I did was I made a copy of it. With Windows

15 you are able to cut and paste different documents. I paste

16 what I just cut out. I will do a select all and increase

17 the font size so that you can see. What I will do is

18 minimize this down so that it should be readable on your

19 screens.

20 MR. SNELL: Your Honor, could the witness now be

21 shown Government's Exhibit 776 for identification.

22 Q. Mr. Swartzendruber, do you recognize that?

23 A. Looks like the same document we were just in.

24 MR. SNELL: The government offers 776.

25 THE COURT: Mark it in, Edward.

2686 1 (Government's Exhibit 776 received in evidence)

2 MR. SNELL: If we could just hold it up so that

3 the jury can see it briefly.

4 Q. Now going back to the screen that you were just

5 showing us, Mr. Swartzendruber, could you read what it says

6 on the second line.

7 A. On the second line it says Democratic Party (DC)

8 looks like Arnaldo or Amaldo Forlani, F-O-R-L-A-N-I, General

9 Secretary.

10 Q. Mr. Swartzendruber, you were testifying before

11 about files being deleted from the computer, is that right,

12 this morning?

13 A. Yes.

14 Q. As a general matter, files being erased or

15 deleted, is that right?

16 A. Files can be erased or deleted, yes.

17 Q. Is there a process whereby erased files can be

18 recovered?

19 A. Yes, there is.

20 Q. What does that process involve?

21 A. Typically the process that I use is, I use an

22 application program like Norton's, and I use Norton's

23 unerase feature.

24 Q. Is Norton's is a software product?

25 A. Norton is a software product. It is part of

2687 1 Norton Utilities.

2 Q. How does the recovery process work then?

3 A. What happens is that, as I was explaining this

4 morning, when you have a file name the first letter of that

5 file will be replaced and it will be replaced with a sigma

6 character in E5 text, if you do an erasure. So it lets that

7 allocation unit, that cluster open.

8 Now if you shut off the machine, if you are in

9 DOS, anything after 3.3, it will go back and start reusing

10 those clusters. If you were to take your machine and you

11 were to continue using your machine after this deletion,

12 more often than not it will not go back and rewrite that

13 until you shut your machine off. It takes the next

14 available cluster. So in actuality what will happen is, if

15 you erased the file and you continued to work, that file

16 will still reside there with the absence of the first letter

17 of the file which has been transposed, so that when DOS sees

18 it, it sees an open and available cluster.

19 So what the utility does, the utility will scan

20 the drive and look for that E5 text, that sigma character.

21 When it sees it, it will say look, here is a deleted file,

22 and you can recover it, again more often than not, if it is

23 a fresh deletion. Then what it does is it matches the

24 starting cluster -- correction -- size of the file and tries

25 to retrieve it based upon the size of the file. If it is

2688 1 less than 4096 bytes and it hasn't been overwritten and it

2 sees that E5 text and it unerases it, it is going to ask you

3 to put a character in for that erased first file name. You

4 can put in whatever you want, a Z, an A, a hyphen, whatever

5 you want, and it will recover that file. The problem is

6 when you have a real long file and it spans over many

7 clusters and the clusters aren't all contiguous, they aren't

8 all in a line, it won't know which one to pick up,

9 typically. It is a lot easier if it is contiguous.

10 Q. Is there any way you can tell what the date was

11 when a file was erased?

12 A. I am not aware of any.

13 Q. Once a file has been recovered through the method

14 that you just described, is there any difference as far as

15 the computer is concerned between that file and an active

16 file?

17 A. That is an active file once you have recovered

18 it.

19 Q. Are there any variables that determine which

20 files can be recovered, that is, which erased files can be

21 recovered and which can't?

22 A. Yes.

23 Q. Could you describe some of those for us?

24 A. One, the simplest is if you have a file that

25 spans many clusters and you erase the first cluster, you

2689 1 erase -- the root directory is written over and it doesn't

2 see that directory name, and the directory entry is not

3 going to be recoverable. What you will do is you will have

4 fragments of that file left.

5 Q. How many types of software are there that can be

6 used to recover files?

7 A. I am sure there are several utility programs that

8 can do that.

9 Q. Do they all do it exactly the same way?

10 A. I think some are more sophisticated than others

11 in their approach to automatic recovery.

12 Q. What do you mean by automatic recovery?

13 A. As I was saying, what happens is that the machine

14 will know if there is a good root directory entry that has

15 been erased and it sees that sigma character, it will know

16 the size of the file. If it is contiguous it will pick all

17 of those clusters up, all that data that will fall within

18 those clusters, and intelligently pick it up. More often

19 than not, that should work. Some of the older programs

20 there were were difficulties with. They wouldn't pick up

21 those clusters appropriately and you had to do a manual

22 unerase, which meant you had to look and make a judgment

23 call as to whether that particular piece of the puzzle fit

24 in or not.

25 Q. Is it possible on the same computer to have

2690 1 different files recovered using the same software at

2 different times?

3 A. Yes.

4 Q. Could you explain how that would happen?

5 A. You do just that. You recover files at different

6 times with the same software.

7 Q. If a computer were turned on and Windows run,

8 Windows 3.1 like we are talking about now, and then the same

9 computer were used to have files recovered through software,

10 and then it was shut off and at a later time the same

11 computer were turned on again and files were sought to be

12 recovered, would you necessarily receive the same recovered

13 files both times?

14 A. Not necessarily. You are running a risk of

15 overwriting clusters. That swap file that we talked about

16 that was dynamic and grows, and you need the memory. As you

17 use Windows it may possibly write over those unallocated

18 clusters. So you have unallocated clusters that are waiting

19 to be given a direction by the file allocation table. As it

20 reaches out and grabs and uses them, it will overwrite

21 sectors that possibly or potentially belong to another file,

22 and that is what the swap file could do, depending how much

23 you use the Windows environment.

24 Q. In your review of the computer in this case, did

25 you notice whether there were any files with dates after

2691 1 January 1, 1995?

2 A. I did.

3 Q. Did you prepare a printout of the files that you

4 found?

5 A. I did.

6 MR. SNELL: Your Honor, could the witness now be

7 shown Government's Exhibit 777A and B, marked for

8 identification.

9 Q. Sir, do you recognize those?

10 A. Yes, I do.

11 Q. What are they?

12 A. Those are the directories and the files contained

13 within that were post January '95. I also recognize I made

14 an error on the directory when I typed that out. I believe

15 the E should be out of that particular directory.

16 Q. Which directory are you pointing to?

17 A. The show and tell. I believe that is SHOWNTEL.

18 Q. Other than that, are those directories fair and

19 accurate representations of material that you extracted from

20 the computer during your examination?

21 A. Yes.

22 MR. SNELL: Your Honor, the government offers

23 777A and B.

24 MR. KULCSAR: There is an objection.

25 THE COURT: There is an objection to which?

2692 1 MR. KULCSAR: To both. There is a specific

2 marking.

3 THE COURT: Just put tape over it.

4 (Government's Exhibits 777A and 77B received in

5 evidence)

6 THE COURT: I assume you will use A before B, so

7 let's take and put A up.

8 MR. SNELL: Actually, I think B will come

9 first -- I am sorry.

10 THE COURT: All right, go ahead.

11 Q. Mr. Swartzendruber, we are now at Government's

12 Exhibit 777B on the easel. Can you tell us generally what

13 we are looking at.

14 A. We are looking at post 1995, January 1, 1995

15 files that were in each one of the subdirectories.

16 Q. Is this a listing that you prepared when you were

17 doing your examination?

18 A. I did.

19 Q. Could you walk us through the first entry that

20 you see up there and just tell us what is written there. If

21 you want to use the laser pointer that is on the witness

22 stand, that might help you out.

23 A. This directory PS2SE has this dot DB. That is

24 commonly a data base file. However, this appears to be

25 either an encrypted file or application created. I am not

2693 1 familiar with this and it is not an ASCII text file.

2 Q. What do you mean by ASCII text file?

3 A. Alphanumeric characters. It is the American

4 Standard Code for Information Interchange.

5 The next one -- actually, what I did is, I typed

6 these out and obtained these by doing a sort. So human

7 error is involved here. I believe it is SHOWNTEL. These

8 again are application files that were created. When you

9 look through the hex editor, they don't show anything that I

10 can see.

11 Q. What is a hex editor?

12 A. It is an editor that allows me to go in and look

13 at these files. I can use a directory viewer. I use Norton

14 Utilities to do that. It is a viewer to view inside these

15 files.

16 Q. Is there any text content to any of the files in

17 the first two directories that are on Government's Exhibit

18 777B?

19 A. Not that I am aware of.

20 Q. If you could move down to the directory that is

21 labeled Windows and has quite a large number of files listed

22 under it, do you see that?

23 A. Yes.

24 Q. Could you tell us what those files are.

25 A. These are all initialization files, INI files,

2694 1 and the way these work, as an example you open up an

2 application and you open up a window and then you shut down

3 Windows, it is going to save it and it makes a modification

4 in your initialization file, this INI file. There is a CIND

5 dot file but I looked and I wasn't able to retrieve anything

6 intelligible. I didn't find any alpha characters that made

7 sense. This is your bit file, the bit map file, the

8 graphics file.

9 Q. What does that graphics file do?

10 A. I can't recall what FLOCK was, but this file, the

11 bit maps file is an image file.

12 Q. What about the files, quite a bunch of them

13 grouped together, that have the extension GRP? Do you

14 recognize what those are?

15 A. Yes. Those are your group files, and the easiest

16 way -- can I take this off here now?

17 Q. Sure. Do you want to show us on the computer?

18 A. Yes.

19 These are your group files, accessories,

20 application, games, world atlas. This one, when you look at

21 world atlas and click it, there is nothing inside it. Yet

22 it creates a world atlas group file. Properties, and it

23 will show you, called WORLDDLT.GRP. You go into Windows and

24 you use Windows and you shut it off, what it will do is give

25 you the time that you closed out of Windows. It closes all

2695 1 these groups.

2 Q. Is that something that the user has to do or does

3 it happen automatically?

4 A. It is automatic.

5 Q. How about the file at the bottom of the page in

6 the subdirectory called Magic? Do you see that?

7 A. Yes. That is another INI file.

8 Q. What does that do?

9 A. It will set the parameters for that application.

10 If it makes modification, it will set the file differently

11 and make modifications when you close out of them.

12 Q. Does it affect the contents of the text file?

13 A. It should only affect the contents of the INI

14 file.

15 Q. There is a file that is two files up in the

16 Windows directory called WIN 386 and then the extension SWP.

17 Do you see that?

18 A. Yes. That is a swap file and that is what we

19 were talking about. It will reach out and grab those chunks

20 of memory and grab it out. That is why we call it a swap

21 file.

22 Q. Is there also a date and time associated with

23 that file?

24 A. There are.

25 Q. Could you identify those?

2696 1 A. Yes. It is January 18, 1995, at 12:09 p.m.

2 Q. If you could take a look at Government's Exhibit

3 777A. Do you see that?

4 A. I do.

5 Q. The file at the very top of the page,

6 WINCLIP.TIF, do you recognize that file?

7 A. Yes, we ran that today.

8 Q. Would you remind us which file that is. In fact,

9 maybe if you could pull it up on the computer, that would be

10 the best way to do it.

11 A. Let's see which directory that was in again. OK,

12 Windows Magic files. There is WINCLIP.

13 Q. Now, going back to 777A, do you see a time and a

14 date associated with the WINCLIP file?

15 A. I do.

16 Q. What are those?

17 A. January 18, 1995, 12:06 a.m.

18 Q. Based on your study of this computer, do you have

19 an opinion as to what happened with respect to this file

20 that is reflected in this exhibit?

21 A. That there was a creation or modification on

22 1/18/1995 at 12:06 p.m.

23 Q. How would that happen?

24 A. Either the file was created at that time or it

25 was modified, and how it could be modified is if it was

2697 1 pulled up and executed, and then perhaps a key stroke was

2 activated on the computer or something causing the profile

3 of that particular file to change, and then it was saved.

4 Q. If the file were printed out at that time, what

5 would have to be done?

6 A. If it were to be printed?

7 Q. Yes.

8 A. Go to file and print.

9 Q. Would it be possible to print out that file and

10 resave it even if no changes were made?

11 A. Yes.

12 Q. If that file were printed, then saved without any

13 changes having been made, what if anything would happen to

14 the time date stamp?

15 A. That should change to reflect the current save.

16 Q. And it would change to what?

17 A. Whatever the current time and date was on the

18 computer.

19 Q. Earlier this morning you were testifying about

20 something called slack area, I believe, is that right?

21 A. Yes, I was.

22 Q. Did you examine the slack area of this particular

23 computer?

24 A. I looked at a good portion of the slack area,

25 yes.

2698 1 Q. When you were looking at it, were you looking for

2 anything in particular?

3 A. Yes, I was.

4 Q. What were you looking for?

5 A. Looking for names from the key word list in

6 particular.

7 Q. What was one of those names?

8 A. BOJINKA.

9 Q. Were you able to find anything in the slack area

10 of the computer that said BOJINKA?

11 A. Yes.

12 Q. Can you show us what you found?

13 A. Yes. What I will need to do is I will need to

14 use Norton Utilities to show where I found that, and I have

15 it on a disk, the application program.

16 THE COURT: Go ahead.

17 Q. Could you also explain to us what you are doing

18 as you do it.

19 A. Yes, I am working Norton disk edit and I am now

20 activating the hex editor to put in C drive. I am in read

21 only mode.

22 Where I found the file was actually in a group

23 name, which should be in the Windows directory. So this is

24 a list of the root directory, and there is Windows, and you

25 will see off to the far right there are three letters

2699 1 indicating that it is a directory. When I enter, it changes

2 me to the Windows directory.

3 I am looking for the -- here it is. It is WORLD

4 ATL. If you remember, that is the one that we saw that was

5 empty. What this shows is, and I don't have a mouse to show

6 you here but it is the one with the black overlay. It is

7 world ATL.GRP, which means it is the group. The size is 64

8 bytes. It is showing a date of 7/23/96, and the reason for

9 that is because we were in Windows and we closed out of it.

10 So it is going to update the group name. But we didn't

11 change the byte structure which is 64, a very small file

12 because it is empty.

13 You see the clusters off to the right, talking

14 about the clusters that get numbered? There is the cluster

15 it resides at, 35967. So we want to take a look at the

16 cluster.

17 I will activate Norton and ask it to go to 35967.

18 So 35967. I enter. It brings me up to the disk editor in a

19 hex mode. Off to the right you can see the ASCII

20 characters.

21 What it represents at the very top, if everybody

22 can see that, each one of those is a byte. There are 16

23 bytes that go across. There were 49 bytes, I believe. It

24 should take up the first four lines, and then what happens

25 after that, the rest of that could be considered slack. I

2700 1 am always careful after -- because the file ends.

2 There are three things that make a file end. One

3 is the size of the file. When it reaches past that 49,

4 everything after that is not part of the file. So you have

5 to be careful when you do this, there could be some stuff

6 dumped out of memory.

7 What would happen, we ended that cluster, which

8 was 966, so we are done with it. We don't have to worry

9 about the memory dumping out any more. So everything from

10 35967 down should be old data that was there, and one of the

11 things that comes up in this particular cluster is, you see

12 Atlas, you see some TMP files, a temporary file below it, an

13 APL, Progman, and there is a BOJINKA.TXT.

14 When I first looked at it, it appears that there

15 are directory entries and I can tell -- that is in hex at

16 the bottom and you can decipher that, you can do it

17 mathematically. Or you can use Norton and in Norton you can

18 view it as a directory. Viewed as a directory, what it is

19 showing now is that these Write files, the first ones

20 created 9/16/94, the next 9/17/94, the BOJINKA text was

21 6,400 bytes long, created on 9/18/94 at 10:23 a.m., and the

22 beginning cluster for this file, if we were to look at it

23 and do the same thing we just did, would be at 24652.

24 So out of interest I go to 24652, and what it

25 does -- your Honor, you can't see it down here but there is

2701 1 another file, XANTED1.TIF. And it threw me into this file

2 which is in the Magic directory XANTED1.TIF at cluster

3 24652. But then what is important here, from here we are

4 about mid-midway down into this file. What this file has

5 done is overwritten BOJINKA.TXT. Remember, we are at 24652.

6 So what I will do is I will link this file to the

7 directory, and it is showing that it actually started at

8 24029. Look how big it is and if you figure that out with a

9 calculator, you could see that it overwrote the clusters.

10 What we have then is the classic example of what we were

11 talking about, that BOJINKA.TXT, when it existed, existed in

12 a cluster that was overwritten by XANTED1.TIF.

13 Q. Is it possible to take a look at what is left of

14 BOJINKA.TXT?

15 A. It has been completely overwritten.

16 Q. What about the file that overwrote it?

17 A. That is the one we are looking at right now. It

18 is this one. Then what I have to do is go down to the

19 cluster where it should have occurred, which was down here a

20 way, about mid-file. So this completely overwrote it, is

21 what it appears.

22 Q. What about the temporary files that are in the

23 same, is it cluster?

24 A. That are in that particular sector of that

25 cluster, yes. Those are all sectors. Those, we can go

2702 1 back. I looked at those, and those are still readable

2 temporary files that have not been overwritten because they

3 are active files.

4 Q. Can you show us any of those?

5 A. Yes, I can. However, I am going to have to write

6 them down so I can remember.

7 Q. Please go ahead.

8 A. I need to go back to the root directory. There

9 it is. We will go down -- it is in the third sector of that

10 cluster, and what we have got is WRI336F.TMP, WRI0361.TMP.

11 You have the SPL1A58.TMP, the WRI3126.TMP.

12 So then what I will do is, I will get out of

13 Norton and instead of looking at it through the hex editor,

14 I can pull it up in Write, where it is more intelligible. I

15 will activate Accessories and Write, open, go to the Write

16 files, but what I will ask for, I am going to ask for these

17 temporary files, and I will try and speed this up a little

18 bit.

19 WRI336F.TMP. There it is. I will activate the

20 program, I will convert it to a Write document. So it is a

21 remnant. It is another one of those files that appear that

22 it was either appended, the original document with this

23 information, it was storing it out in memory before the

24 original document, but this is what that particular TMP file

25 looks like.

2703 1 Do you want to go to the next one?

2 Q. Would you please.

3 A. The next one is WRI0361. There it is. I will

4 activate it. That took it right in as a Write document, so

5 this one is real close to the original document, if not a

6 mirror image -- I am not going to say mirror image, if not a

7 copy of the original document, because it saved all the

8 formatting codes when it brought it up.

9 Q. What do you mean all the formatting codes?

10 A. The bold, there is codes that create all this,

11 all the formatting codes. So it recognized it as a Write

12 document.

13 Another one was the WRI3126, and again it saved

14 the formatting codes, probably real close to the original

15 document.

16 Q. By real close to the original document, what do

17 you mean?

18 A. That it looks like maybe a save was done, well,

19 in Write, and it could have been an unexpected stoppage in

20 the program. Either the electricity could have closed out,

21 it could have closed out Windows improperly. Maybe it went

22 into another function. As you can see, this is a

23 multitasking environment and you can write in this file go

24 to another task, and sometimes the memory blows the

25 application you are on. You are supposed to create a

2704 1 temporary directory for these files to go into, and in the

2 absence it falls into the Windows directory. That is why

3 you have so many temporary files in there. This one saved

4 even the formatting codes. The other one that you saw

5 didn't.

6 Q. Do you have any more up there?

7 A. The only one, I don't know if this is going to

8 come up or not, is the SP -- I think what is interesting

9 when I looked at this too was the time -- here is the one we

10 had. I will do a conversion on that. This is coming up

11 just with a bunch of junk. I don't see anything in this

12 file that would be of --

13 Q. Mr. Swartzendruber, the files that you have just

14 been showing us, these temporary files, could you show us

15 again the directory where the time date feature is present?

16 A. I will maximize the window here, we will view it

17 by date, which it already is, and those were WRI336F.

18 OK, here we go. There is WRI336F.TMP, and then

19 you can see the date on that is 9/16/94, 264 bytes at 11:14

20 p.m., and then the WRI0361 is right here, and this is what

21 is interesting. You look at WRI0361.TMP, and if you look at

22 the file size, 3456 on OBAID.TXT, same day, same time. So

23 that could explain why the OBAID.TXT was a save, and that

24 was a WRI0361. We can associate it with the Write document

25 by clicking on it, going to file, doing an associate, we

2705 1 will associate it with Writes. Then if I clicked on it, and

2 then the OBAID.

3 Now, what happened here is, this shows me the

4 note pad brought up will be dot text and actually this is

5 the formatting code for Write. So for some reason it

6 associated OBAID, because of the text file extension, when

7 actually this is a Write file. So if I wanted to do this

8 right -- there is the temporary file. I will go to

9 Accessories, get into Write, I will open it, I will find

10 OBAID.TXT, I will open it, and then what you do is, you have

11 the temporary file, OBAID.TXT, and you have the -- I am

12 sorry, the temporary file above will be OBAID.TXT and you

13 can see that it looks like the same document.

14 (Continued on next page)

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18

19

20

21

22

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24

25

2706 1 Q. Mr. Swartzendruber, based on your study of this

2 computer do you have an opinion as to how long it would take

3 to install all of the files that you've been showing us here

4 today?

5 A. Including temporary files?

6 Q. Everything. The way it is on the computer as you

7 understand the computer?

8 A. Well, it's a very difficult question because what

9 happens is it's one thing to install an application program,

10 but what you're doing is you're creating something that an

11 application would create in and of itself, so that means

12 that the human intervention has to be that you have to find

13 those files that are associated to the text files and create

14 those temporary files. So to do that is not an automated

15 process. That would be an enormous task to do that.

16 MR. SNELL: Your Honor, I have no further

17 questions.

18 THE COURT: I guess the record should reflect you

19 returned my pen.

20 Mr. Yousef. You wants a couple of minutes now?

21 Sure, fine. Paul, would you down that so the jury can get

22 out. Okay, folks.

23 (Continued on next page)

24

25

2707 1 (Jury, witness; not present)

2 THE COURT: Roy, do you want to put another chair

3 at the table so you can have your expert sit there with you?

4 MR. KULCSAR: I appreciate that, your Honor. I

5 think one one reason we asked for the break is we had

6 discussed with Mr. Snell that we would not do anything with

7 the computer while his witness was still on to interfere

8 with what they had scheduled or set up, so I may need a

9 couple of minutes, I don't know.

10 THE COURT: I'm somewhat at a loss. You're not

11 going to do anything with the computer at all?

12 MR. KULCSAR: I think we are, your Honor. What

13 I'm saying is that during the break we discussed with

14 Mr. Snell the fact that we wouldn't have our expert do

15 anything with the keyboard or the computer, because

16 Mr. Snell had it set up in such a way that it would

17 interfere with what his witness was doing.

18 What I'm saying is we may need more than just a

19 couple of minutes on the break.

20 MR. SNELL: Your Honor, as I understand it,

21 Mr. Kulcsar wants his expert to examine the computer. I

22 don't understand if there are going to be any changes made

23 to the computer as it has been set up now, except by the

24 witness when the witness is being examined.

25 THE COURT: All right. How long is it going to

2708 1 take, Mr. Expert?

2 MR. LEVENTHAL: No idea. Probably not long.

3 THE COURT: Not long, okay.

4 MR. SNELL: Also, your Honor, I ask the Court's

5 permission to have the witness just observe what the expert

6 is doing when he's looking at the computer? Would that be

7 possible?

8 THE COURT: Sure. Okay.

9 (Recess)

10 (Continued on next page)

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2709 1 (In open court; jury present)

2 DAVID SWARTZENDRUBER, resumed.

3 THE COURT: Okay, Mr. Yousef.

4 CROSS-EXAMINATION

5 BY DEFENDANT YOUSEF:

6 Q. Good afternoon, sir. Sir, do you have any formal

7 training in the computer area, that is, university training

8 in computer programs or operation?

9 A. I'm sorry, do I have any formal education?

10 Q. Do you have any formal training?

11 A. Yes, I do.

12 Q. Do you have a regular degree in computer

13 programming or computer operation?

14 A. I don't have a degree in computer programming,

15 no. I've got one in business administration.

16 Q. Have you taken any formal courses in the areas of

17 operating systems or file systems?

18 A. Yes, I have.

19 Q. Can you tell us please what courses you had?

20 A. I've taken classes at the University of

21 California, San Diego, in C programming language. I've

22 taken courses at Rosemont College in San Diego on BASIC.

23 I've taken classes at Fullman College in LeMesa in Field 1,

24 program language 1, COBOL. And I also have attended

25 seminars. And I'm a member of the International Association

2710 1 of Computer Investigator Specialists. It's a law

2 enforcement group where we attend, or I have attended

3 several of the two-week seminars, intensive forensic

4 training.

5 I've attended Department of Justice schools in

6 computer investigations. I've attended the Department of

7 Justice -- actually, it's the Search Group, it's under the

8 Bureau of Justice Administration Funded Project, where I've

9 taken classes in computer forensics. And also I've attended

10 classes given by the city of San Diego in the SAS

11 programming language analyst system, programming analysis

12 for a year.

13 Q. But, sir, do you have any formal courses in the

14 areas of operation operating systems?

15 A. In such as DOS, such as that?

16 Q. Yes, sir.

17 A. Yes, I have.

18 Q. Would you tell us what courses you've had in the

19 operating system, sir?

20 A. I've attended courses through the City of San

21 Diego on different DOS courses. I believe there was an

22 intermediate and advanced course. I can't exactly recall.

23 It was given by the City of San Diego and offered to the

24 Police Department employees.

25 Q. Do you recall what type of a course it was?

2711 1 A. I believe it was an intermediate and advanced

2 course. We had a syllabus, and we attended a lab and we

3 went through the lab and learned about the DOS operating

4 system at the time. It's a number of years ago.

5 Q. Do you have any courses in file systems?

6 A. I don't understand, a course in file systems?

7 Q. Sir, is file systems a standard computer course?

8 A. I'm not aware that it is. I don't know.

9 Q. Now, sir, the operating system courses that you

10 had, would you tell us please how long was the course?

11 A. It was a long time ago and I believe it was one

12 or two days.

13 Q. And would you tell us what type of certificate

14 you received?

15 A. I believe upon completion of the course everybody

16 received some sort of certificate, attendance certificate,

17 but I can't recall.

18 Q. Is that a degree? Do you recall what type of

19 certificate it was?

20 A. No, I think it was just for attending the course

21 to show that you sat through the curriculum.

22 Q. Do you recall for how many hours was the course?

23 A. It was one or two days. It was either 8 or 16, I

24 can't recall. It was quite sometime ago.

25 Q. How long ago was that, sir, do you recall?

2712 1 A. Just a guess, eight, ten years ago. I'm sorry,

2 it wouldn't be that long. Let me think. Maybe seven years

3 ago. I'm not sure.

4 Q. Sir, have you ever published an article in the

5 computer field?

6 A. No.

7 Q. Other than the one time which you were accepted

8 in the court in Canada, have you ever been accepted as an

9 expert in any other court?

10 A. Yes, I have been an expert in other courts.

11 Q. Would you tell us which other court, please, were

12 you accepted as an expert?

13 A. Are you talking about in the computer field or

14 any expertise?

15 Q. Yes, sir.

16 A. Not as an expert in computer, computer

17 examinations and other fields of expertise.

18 Q. Have you ever presented a course or a seminar in

19 computer field, sir?

20 A. I have.

21 Q. Would you tell us what type of courses or

22 seminars?

23 A. I myself and personnel from Novel Corporation

24 sponsored a course for law enforcement. It was a day-long

25 course in the recognition identification of pirate online

2713 1 systems.

2 Q. How many courses have you presented, sir?

3 A. We did the one for law enforcement. We did

4 another one for Novel in Orlando, Florida. It was a

5 two-week course for the International Association of

6 Computer Investigator Specialists where the same curriculum

7 was given in a shorter time period.

8 Q. What was the course about, sir?

9 A. Online pirate systems, those pirate bulletin

10 board systems, the distribution of copyrighted material

11 using modems to facilitate the distribution.

12 Q. So, am I correct, sir, that the course had

13 nothing to do with operating systems or retrieving files or

14 examining hard disk?

15 A. No, that's incorrect. The ones that I taught?

16 Q. Yes, sir.

17 A. The ones that I taught when you say having to do

18 with operating systems what do you mean? Did I use an

19 operating system, that I teach about operating systems

20 during this course?

21 Q. Yes, sir, teaching DOS system or operating

22 system?

23 A. We do as a part of the curriculum, but I don't do

24 that. We teach about Novel, and Novel netware, because

25 that's pretty much the network of choice among some of the

2714 1 pirate organizations.

2 Q. Now, sir, you testified today on direct about

3 some files which had dates and times to them, do you recall

4 that?

5 A. I do.

6 Q. Now, how does the computer stamp a date for a

7 file?

8 A. On creation or modification.

9 Q. Must each file have to have only one date or are

10 there more than one date assigned to each file, sir?

11 A. It should have one date to the best of my

12 knowledge.

13 Q. Is that the same date is set for creation of the

14 file or modification?

15 A. Yes.

16 Q. Can you tell whether that date is the date of

17 modification or creation of the file?

18 A. I wouldn't, no.

19 Q. Sir, can you as a user of the computer set the

20 date to any date you like?

21 A. There are range dates, yes, you can set the

22 computer.

23 Q. How long does it take you to change the date?

24 A. Just a matter of seconds.

25 Q. Now, for example, if you set the date now to

2715 1 December of 1994, and you would be at the file now, what

2 would be the date that would be assigned to that file?

3 A. It should be the date that the system clock --

4 you're asking two questions. I wouldn't create the date. I

5 create the file, and the computer through the clock will

6 create the date, and it will give it that date and time

7 stamp. Is that what you're asking? Is that what you're

8 asking?

9 If I created it today and it was January 1 today,

10 it would show January 1, whatever the system clock shows.

11 Q. So if you set the date to January, 1994, and you

12 create a file you would stamp that file January 1, 1994?

13 A. If that is what the system clock has, generally

14 that's what it will do.

15 Q. Now, if you change the date again to, for

16 example, January of 1995, and you created a different file

17 would that file also be given a new date of January, 1995?

18 A. Again, what will happen is whatever the system

19 clock shows is what that time and date stamped at, so

20 whatever you set it at it should reflect that on the file.

21 Q. Would the previous file that you just created

22 just a few minutes ago, and shows that it was created in

23 1994, when you change the clock, would the previous file

24 date also be changed?

25 A. So you've created one date over here.

2716 1 Q. Yes.

2 A. 1994. You've created another 1995. You leave

3 your system clock on 1995. You're asking if it will change

4 that 1994 date?

5 Q. Yes, the first file.

6 A. It shouldn't. It should remain the same.

7 Q. Now, sir, the computer which is in front of you

8 has some files, and am I correct that each file has a date

9 assigned to it, stamp or date?

10 A. There is, for each of the active files there is a

11 date and time stamp.

12 Q. Now, do you know if these dates are true dates,

13 represent the true dates when these files were created or

14 false dates?

15 A. True dates, so what you're asking me is the

16 files --

17 Q. If the files were created on the dates which are

18 shown --

19 A. And then they were changed?

20 Q. No, if they were created, if the file says that

21 it was created on September of 1994, do you know if it

22 actually had happened, if it was created in September, or if

23 A. Looking at a file I don't think there is any way

24 you can tell.

25 Q. So can you tell if the dates are true dates or

2717 1 false dates? Is there any way for you to tell?

2 A. When you say false dates, that it's not

3 representative of the time and date stamp that was actually

4 done?

5 Q. Yes, sir.

6 A. I don't know how you could tell that.

7 Q. Do you know if it is --

8 A. Now, that's just looking at, what you're bringing

9 up is your, if you look at a directory and on that directory

10 all you see are the bytes of that file you see the starting

11 cluster, and you see a date and time stamp, if that's what

12 I'm looking at, then I don't know how you could authenticate

13 that date.

14 But now that you're asked to go beyond that and

15 you're looking to authenticate dates, there are a lot of

16 other variables that come into play. If I activated a file

17 and I look at that file and the file was a letter with a

18 date on it that would cause some suspicion. If there were

19 files that were created as a result of the activation of

20 that file, or the creation of that file that were

21 application specific, like temp files, that creates a

22 suspicion. All those things come into play. It's not just,

23 if you look at the lines, if you're asking if I look at a

24 line, no, I can't.

25 But if you're asking if you go beyond that in the

2718 1 file to authenticate that time of day you have to take in a

2 whole array of variables to do any kind of time and date

3 authentication or a change.

4 Q. Well, sir, the files which you testified about

5 today on some of them I believe have a date of creation of

6 September of 1994. Is there any way for you to tell if they

7 were actually created in September or January of 1995?

8 A. Again, I would have to rely upon the date that

9 the date and time stamp from the computer gave those files

10 in the absence of looking at other variables. So when I

11 look at those I didn't have the privilege of examining

12 evidence that would give me, not in this case, but if I go

13 beyond this to look at the date and time stamp and the

14 authentication of a file that you just -- I know what you're

15 asking, but I can't, there's a lot of variables that come

16 into play to give an authentication.

17 When I did my examination I looked at the dates

18 and time, and for me I accept that that's the date and time

19 stamp.

20 Q. Did you do any examinations to these files of

21 this computer to see whether they were created on dates

22 which are assigned to them or not?

23 A. No, my examination did not go into authentication

24 of dates.

25 Q. If someone goes into a file later, after it was

2719 1 created, would it be assigned a new date again, updated?

2 A. If done properly, if somebody goes into the file

3 and they make a change or a modification to that file and

4 the system is working properly it should give a new time

5 stamp and a date stamp.

6 Q. Does the computer keep anywhere -- withdrawn.

7 Sir, do you know how many times, if any, the dates on this

8 computer was changed since it was first manufactured or

9 purchased?

10 A. My computer here?

11 Q. The computer which you had the copies of this

12 hard disk?

13 A. I don't understand the question. The clock?

14 Q. Did you receive -- the computer in front of you

15 does it have a hard disk?

16 A. Yes.

17 Q. And the files which you testified about today

18 were in files which you had stored I believe in that

19 housing, is that correct, sir?

20 A. That is correct.

21 Q. Is there any way for you to tell how many times

22 the digital clock of the computer was changed since it was

23 first manufactured, of the original computer which contained

24 the hard disk?

25 A. Of which the mirror image came from. No, I'm not

2720 1 aware of any.

2 Q. Now, sir, when you first switched on the computer

3 there was a drawing of a tree and a bird, and you called

4 that a wallpaper, am I correct, sir?

5 A. Yes.

6 Q. Is that what you generally call the drawing which

7 first comes on the screen before pressing any key or before

8 touching anything from the keyboard?

9 A. What came up was the wallpaper bitmap.

10 Q. I'm sorry, sir?

11 A. What came up was the wallpaper. That was you can

12 select when you get into the desktop application any one of

13 the bitmaps you want to do your wallpaper and apparently the

14 SANE.BMP were selected, that's why that one came up.

15 Q. Would you tell us what the wallpaper is, sir?

16 A. Pardon me?

17 Q. Would you tell us what a wallpaper is?

18 A. Well, what that is is that's just a graphic that

19 comes up that you can select that you can have a nicely

20 decorated screen before you activate your desktop.

21 Q. And does it appear on the screen even without

22 touching or pressing any key from the keyboard or mouse or

23 anything?

24 Does it come by itself to the screen? You don't

25 need to touch anything, to press anything?

2721 1 A. The way this one was set up the first thing that

2 comes up is the Toshiba with a Windows, and then it will

3 come up with the wallpaper and with the error message.

4 THE COURT: But you don't touch anything. It

5 does it all by itself after you put it on?

6 THE WITNESS: That's correct, your Honor.

7 THE COURT: Okay.

8 Q. Now, in order to change the wallpaper or the

9 drawing which comes first on the screen, do you need to

10 change the contents of any of the files which are stored in

11 the hard disk?

12 A. To change the wallpaper do you have to change the

13 contents?

14 Q. Do you need some other drawing to come up on the

15 screen other than the -- if you need sky line, or some other

16 buildings or photograph a picture of buildings to come up on

17 the screen instead of the tree and the birds which are shown

18 now, in order to do that, do you need to change the contents

19 of any of the files which are stored in the hard disk?

20 A. If you want, if you're asking if you have to

21 change the bitmaps to do that? No. What you have to do is

22 you have to get into the desktop, activate it, go into the

23 control panel desktop, and then what you do is you can

24 select, I believe it says, wallpaper.

25 You hit the selection bar and you can scroll down

2722 1 different bitmaps, and then you can select another one.

2 When you do that, if you're asking if anything changes on

3 that hard drive? It's very possible your SWAP file might

4 change some things around, and also maybe some of the

5 initialization files, but not the BMP files themselves to

6 the best of my knowledge would not change.

7 Q. Sir, my question is, do you need to change

8 anything at all from the hard drive in order to make a

9 computer come with a different drawing or a different

10 wallpaper?

11 A. Yes, sir, you do.

12 Q. So would it be fair to say that if the same

13 computer was brought back to you two days later and when you

14 first switched it on and you saw a different drawing, would

15 it be fair for you to say based on that drawing the, drawing

16 was changed, that the hard disk contents were changed?

17 A. That would tell me that when you say change, I

18 don't understand what you mean.

19 Q. Modified?

20 A. What you would do to do that is you would select

21 a different bitmap so you'd have to go into the desktop,

22 activate it, select a different bitmap to come up and you're

23 asking if the contents of the hard drive changed the bit by

24 bit sector by sector structure.

25 I'm sure that there is some small minute change

2723 1 in the initialization files and maybe, maybe the SWAP file,

2 depending upon how much you've used that computer in the

3 course of changing the bitmap.

4 That may be the first thing you've done, but in

5 and of itself if you open it, you get in and you change

6 that, now I'm sure there's a few files that will be updated

7 and when you close out the group will be updated, but it

8 shouldn't touch any active files at all except for the

9 initialization file.

10 THE COURT: You want to do it? I don't know. I

11 wouldn't know in a million years how to do it. Can you do

12 it here now?

13 THE WITNESS: Sure, your Honor.

14 THE COURT: Is that what you want?

15 DEFENDANT YOUSEF: Yes.

16 THE COURT: Okay, go ahead and do it.

17 A. Do you want me to bring, just change this

18 wallpaper now?

19 THE COURT: Put it on a different one.

20 A. We're going to go to Main, and then you click the

21 control panel, it will load it up, and you'll have a desktop

22 and up here what you can do is you can have screen saver.

23 This isn't a screen saver. You can select squares, and then

24 I'll get out, and there's your squares. You can go back in,

25 you can select thatch and there's your thach. Then what we

2724 1 can do is you can go go back and we can select, and there it

2 is. That's how you change it.

3 Q. If you turn on the computer again does it come

4 with a new drawing?

5 A. It should come back to the last one you

6 activated, so if we turn this off, well, let me show you.

7 You want me to demonstrate this?

8 Q. I'm sorry, sir?

9 A. Would you like me to demonstrate this with a

10 different wallpaper?

11 Q. Yes, sir, if you can. Did you finish doing it,

12 sir?

13 A. Yes.

14 Q. So if you switch off the computer now and switch

15 it on again?

16 A. It will come back here. Sorry, I did switch it

17 on. I thought that's what you wanted. Okay, it's off. Now

18 we're activate the Windows program. It comes up with

19 Toshiba. There it is.

20 Q. But that's the same wallpaper, isn't it, sir?

21 A. I'm sorry. I did that once before. I called up

22 the other one. When I changed it was, I shut the machine

23 off. I'll just do it again slower.

24 Q. Well, sir, it's okay. Just generally, sir, when

25 you do that you need to change, can you do it without

2725 1 changing anything from the hard disk?

2 Q. Can you do it without modifying any of the hard

3 disk contents?

4 Q. Or you have to make some change in the hard disk?

5 A. Well, you have to make changes because it has to

6 be able to see that file so I mean you make subtle change

7 but can you do it without? I'm not really sure if you can.

8 I don't know if you can go in and change that to another

9 bitmap file and call that one up and what the change would

10 be. It might blow out.

11 Q. Well, sir, just in simple terms, if you do that,

12 do you need to change contents of at least one file?

13 A. That's what you're losing me. The bitmap does

14 not change. The bitmap will remain constant. That file

15 remains constant. It should remain constant. Now, is that

16 what you're asking? That bitmap will not change. I can

17 change to the bricks, to the thatch and that file should not

18 change. The cluster location should not change. The time

19 and date should not change I don't believe. It shouldn't

20 change.

21 Q. Are there any changes made at all?

22 A. Yes. There must be some. The initialization

23 file I would believe that that should change, because what

24 it has to do it has to tell it to come up again in the

25 thatch or the brick or whatever. So that that would

2726 1 probably change, and might be some other subtle changes that

2 I'm not aware of.

3 Q. Now, sir, you testified about files which

4 contained photographs. Do you recall that?

5 A. Yes, I do.

6 Q. How would a person be able to store a photograph

7 into the computer?

8 A. Well, there's a couple of different ways. You

9 can scan a photograph into the computer. You can also take

10 a picture, a digital picture with a digital camera and cause

11 it to come into the computer. You can receive a file via

12 modem, or you can transfer it off of a disk to your

13 computer.

14 Q. Now, sir, would you describe how a scanner looks

15 like?

16 A. There are several different types. There is hand

17 scanners. There's full flatbed scanners. And essentially I

18 guess the best analogy that I can think of is a very

19 flattened out copy machine. If you lift the top off and you

20 put your document on and you close the top, and then what it

21 does is it scans it line by line and brings that image into

22 your computer.

23 Q. And what's the second way of doing it, sir?

24 A. Well, you can take a photograph with a digital

25 camera, and you can load that directly into your computer.

2727 1 Very common nowadays, you can do it.

2 Q. What does the digital camera look like? Does it

3 look like a normal camera?

4 A. They look similar to 35 millimeter cameras.

5 Q. And what is the third way, sir?

6 A. You could receive it via modem file. If you have

7 an IDSN line you can receive at high speed. If you have a

8 T1 connect you can receive it through net. If you -- there

9 are several ways to receive files to your computer. You

10 could also receive it via a disk, removable disk, tape

11 drive, if it's a file that is located somewhere else placed

12 on that computer to be transferred to yours.

13 Q. Am I correct, sir, the person who will send you a

14 photograph to the model would also need to have either a

15 scanner or a digital camera?

16 A. At some point somebody has to have a device that

17 would take that image and cause it to be digitized and a

18 file created.

19 Q. Now, sir, beside the camera or beside the scanner

20 itself what else do you need in order to make the computer

21 able to store photographs or to load and save photographs?

22 A. Well, it load and save photographs. DOS will do

23 that. You can save that file. Now you may not be able to

24 read that file without without a proper application program,

25 but you can save the file. You can't read it maybe, but it

2728 1 can reside on your hard drive.

2 Q. So is all what you need is just to buy a scanner

3 and hook it to the computer?

4 A. No, not if you're talking specifically about your

5 computer hookup to the scanner. What you are going to need

6 are the proper drivers for that scanner. You're going to

7 need the scanner. You're going to need the cabling. You're

8 going to need the software that will enable you to receive

9 those images. And then once you have those stored images

10 you're going to need something that can read those images

11 and read those particular file formats, so you can save

12 them.

13 Q. Now, sir, the files which you testified about

14 that they were stored or modified or created in the computer

15 on or after January 2, 1995, do you know if they were

16 created on these dates, or they were modified on these

17 dates?

18 A. I can't tell if a file has been created or

19 modified. It could be created and then modified within a

20 matter of seconds.

21 Q. When did you first start examining the contents

22 of the hard disk which you received?

23 A. I received a mirror image on a 4 millimeter DAT

24 tape back in February and that's when I first started taking

25 a look at it.

2729 1 Q. Is that February of 1996, of this year, sir?

2 A. That is correct, sir.

3 Q. Now, do you know when this mirror copy was done,

4 was made?

5 A. I believe it was sometime around, I'm not sure,

6 I'm not sure of the date.

7 Q. Approximately if you recall, sir?

8 A. I can't recall right now.

9 Q. Do you recall which year?

10 A. I believe it was 1996.

11 THE COURT: Did you make it?

12 THE WITNESS: No, your Honor, I didn't. I

13 received it.

14 Q. I'm sorry, sir. You said it was made in 1996?

15 A. I'm not sure. I would have to check. I do not

16 know.

17 Q. Sir, do you know prior to making the mirror copy

18 of the hard disk, do you know what were the contents of the

19 hard disk prior to making the copy?

20 A. I did not make the copy. I received a mirror

21 image copy and a 4 millimeter DAT, so I did not have, what I

22 had was a tape that was sent to me. And then I took that 4

23 millimeter DAT and restored it on a control computer.

24 Q. Sir, supposing that the copy was made on 1996, do

25 you know what were the contents of the original hard disk

2730 1 prior to 1996?

2 A. So you want me to, you want me to accept that it

3 was made in 1996, and what were the contents prior to 1996?

4 Q. Of the original hard drive?

5 A. What were the contents? What do you mean?

6 Q. Did you ever take a look at the original hard

7 drive?

8 A. I never took the original hard drive. I looked

9 at a mirror image copy.

10 Q. Did you ever make a comparison between the

11 original hard drive and the mirror copy?

12 A. I didn't, no.

13 Q. So all your testimony today was from the mirror

14 copy, am I correct, sir?

15 A. That is correct, sir.

16 Q. Sir, did you make any tests to see the number of

17 files which were created on or after January 6th of 1995?

18 Did you make any tests from the mirror copy which you have?

19 A. What do you mean?

20 Q. Did you make any tests to see or any examinations

21 on the mirror copy which you have to see the number of files

22 which were created on or after January 6th of 1995 which

23 have dates assigned or stamped dates on or after January 6th

24 of 1995?

25 A. What kind of tests?

2731 1 Q. How can you tell, sir, if a file was created on

2 or after January 6, 1995?

3 A. I looked at the directory entry for the time and

4 date stamp.

5 Q. So, sir, did you look at the directory and time

6 and date of the files which are stored in the mirror copy to

7 see if there were any files which were created on or after

8 January 6th of 1995?

9 A. Yes, I did.

10 Q. And could you tell us, sir, what's the number of

11 files which were created on or after January 6th of 1995?

12 A. It's on one of the charts here. I believe it was

13 just guessing. Probably in the 20, 25, 30 files, 25 maybe.

14 Q. Are these text files or --

15 A. I believe that one was a text file and I took a

16 look at at it, and just didn't have any intelligible data in

17 it.

18 Q. Do you have anybody who knows anywhere it says

19 the exact number of files that were created on or after

20 January 6, 1995?

21 A. Do I have a list of that?

22 Q. Yes, sir.

23 A. Yes, I testified to that and I believe it's one

24 of the exhibits here.

25 Q. Are these the only files which were created on or

2732 1 after January 6, 1995?

2 A. The only ones that I could find.

3 Q. Are these the only files which are assigned a

4 date on or after January 6, 1995?

5 A. January 2d?

6 Q. 6th.

7 A. 6th?

8 Q. Yes, sir.

9 A. Again, if you're asking me if these are the files

10 that I found, those are the ones that I found, and I

11 testified to.

12 Q. Did you check all the files which were stored in

13 the mirror copy of the hard disk, sir, in order to come out

14 with these results?

15 A. To receive those files that were post-January,

16 1995?

17 Q. Yes, sir.

18 A. January 1? What I did is I went in and did a

19 directory sort. First what I did is I just did a simple DOS

20 command and took all the directories and put them into one

21 big file. Then I went in did a sort to an EXCEL spreadsheet

22 and then I just retyped the labels. That's how I did it.

23 Q. And did that include all the files in the hard

24 disk?

25 A. Yes. I did it for all the files in the hard disk

2733 1 that I could find.

2 Q. Sir, you testified about a registration name on

3 the windows program. Do you recall that?

4 A. I do.

5 Q. How does a person go about registering their name

6 in the program? How does it happen?

7 A. This should probably be done at the installation

8 of Windows.

9 Q. And after you stored this name, is it possible to

10 change it later?

11 A. I've never tried it. I don't know.

12 Q. Do you know if the name which is registered on

13 that program was changed at all during any time, at any time

14 at all?

15 A. If the name was changed?

16 Q. Yes.

17 A. Am I aware of prior to receiving the mirror image

18 copy? Every time I've reactivated the mirror image copy

19 that's the same name that comes up.

20 Q. Do you know if there is any way for you to find

21 out whether this name, whether there was a different name

22 and then it was changed to the name which appears now?

23 A. I don't know how to do that.

24 Q. Now, sir, you testifed about unintelligible

25 files, do you recall that?

2734 1 A. I do.

2 Q. And that you used a floppy disk to decrypt some

3 of these files, am I correct, sir?

4 A. There was a file on the floppy disk that is a

5 decryption program, yes.

6 Q. Did you personally prepare that program of the

7 file which is the floppy disk?

8 A. No.

9 Q. Do you know who prepared, who did that, sir?

10 A. It was my understanding that Ray Canlas had done

11 that.

12 Q. I'm sorry, sir?

13 A. Ray Canlas.

14 Q. And do you know who that person is, sir?

15 A. I've never met him, but I understand it was one

16 of the witnesses from the Philippines who examined the

17 computer.

18 Q. When did you first receive this disk, sir?

19 A. I'd have to, I'm not quite sure when I did. It

20 was March or April I believe. I'm not sure.

21 Q. 1996?

22 A. 1996, correct.

23 Q. So it's your testimony that you decrypted the

24 files which were stored on the mirror copy using the floppy

25 disk which was provided from the Philippine National Police

2735 1 personnel?

2 A. That is correct. Yes.

3 Q. Did you find any files or any program in the

4 computer which could have been possibly used by the person

5 who owned the computer or the user of the computer to

6 decrypt these files?

7 A. To decrypt or encrypt.

8 Q. To encrypt and decrypt?

9 A. I saw the files on the computer that appeared to

10 be written in BASIC that may have been used to encrypt and

11 decrypt in some form or another, yes.

12 Q. Did you use any of these files?

13 A. No, I didn't.

14 Q. Did you try to use them, sir?

15 A. Yes, I did. When I first received the computer I

16 did try a couple of BASIC programs, but I didn't continue

17 with it.

18 Q. Were you able to use them successfully to decrypt

19 the unintelligible files?

20 A. I wasn't.

21 Q. And how long did it take you, sir, how long did

22 you spend on these files approximately in trying to use them

23 to decrypt the unintelligible files?

24 A. Very short time.

25 Q. Approximately, sir?

2736 1 A. Oh, maybe an hour.

2 Q. And the only way in which you were able to

3 decrypt these files was by the floppy disk that was provided

4 by the Filipino National Police personnel. Am I correct,

5 sir?

6 A. No, that's not true. What we did is I contacted

7 a company Access Data in Utah, Eric Thompson, and sent a

8 copy -- actually, it was I sent him some files from the

9 computer to attempt to decrypt and they successfully

10 decrypted some of the files.

11 Q. Did you also send them the floppy disk which was

12 provided to you?

13 A. No. I made them a copy.

14 Q. So you sent them the copy, sir?

15 A. I sent them a -- what I did is I copied the files

16 onto a diskette.

17 Q. The files which were provided by the Filipino

18 National Police?

19 A. No, I -- well, yes, I did as a matter of fact. I

20 sent them the copy. I believe I used a program called

21 Amethyst which makes a mirror image of this disk and I sent

22 them a copy of the one that was sent to me. In addition, I

23 sent him files off the computer on a separate diskette.

24 DEFENDANT YOUSEF: Your Honor, can we break now

25 if it's possible?

2737 1 THE COURT: You want to break now? Yes.

2 However, I want to do one thing first. You talked about

3 having an Atlas on this computer. You want to get me into

4 the Atlas? It's under BSP Solutions. Okay. Now, let's go

5 over to Southeastern Asia. No, that's Southwest.

6 Okay. Now, go into the Philippines if you would.

7 Okay. Now, is Manilla there?

8 THE WITNESS: Here.

9 THE COURT: Click that on. Okay, just leave it

10 on for a minute. We heard so much about some of these

11 places, ladies and gentlemen, it seemed simple to put the

12 thing up there.

13 There seems to be a distance thing right up on

14 the left-hand side under the word Philippines, and then

15 we've heard a lot of different words. They told us about,

16 for example, Malate, which is well, you want me to do it?

17 Here is Malate, it seems to be. Then we heard about Makati.

18 And then we heard about the Malacanang Palace. You see

19 that. There was some talk also about Quezon City, which is

20 up here apparently.

21 But it was sitting there in the computer so I

22 decided to look for it, and I assume that you might be

23 interested in where these places were, too.

24 All right, ladies and gentlemen, we will come

25 back for more bits and bytes tomorrow, 9:30.

2738 1 Please, once again, make sure you stay away from

2 all the media. Okay.

3 (Continued on next page)

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2739 1 (Jury not present)

2 THE COURT: You might as well close it up now. I

3 don't know how you go about that.

4 THE COURT: All right. Come back tomorrow

5 morning at 9:30. Does anyone want to object? It was in

6 evidence, the map. All that had to be done was found. I

7 will admit never having seen a map of Manilla before. I had

8 no clue as to what they were talking about.

9 MR. KULCSAR: No objection.

10 MR. GREENFIELD: We'll get a detailed map later.

11 THE COURT: I don't want it. The last time I got

12 a detailed map was of Long Island Sound and somebody thought

13 I owned a boat. I could care less about. I didn't own a

14 boat either.

15 MR. GREENFIELD: Your Honor, before we --

16 THE COURT: Then I had to tell them I not only

17 didn't own a boat, I don't swim. How about that?

18 MR. GREENFIELD: Before we do cross-examination

19 tomorrow will we be conducting the voir dire?

20 THE COURT: You sound like you are a member of

21 the media.

22 MR. GREENFIELD: The reason I ask, your Honor, is

23 Mr. Garcia indicated the next witness after this would be

24 the witness whose focus would be on my client.

25 THE COURT: You can step down, sir.

2740 1 THE WITNESS: Thank you, your Honor.

2 (Witness not present)

3 THE COURT: I assume that Mr. Yousef tonight is

4 going to plan out some cross-examination. Are you expecting

5 to go?

6 MR. GREENFIELD: I have some cross.

7 THE COURT: Are you, also, Clover?

8 MS. BARRETT: Yes, your Honor.

9 THE COURT: So I would guess that it will take

10 sometime. I doubt if we will get to an extra witness, but

11 sometime during the day I will be talking to the jury, yes.

12 MR. GREENFIELD: Thank you, Judge. One further

13 thing. There is reference by the witness to sending some

14 matters to Utah for analysis. I think I heard that.

15 THE COURT: That's what I heard.

16 MR. GREENFIELD: I don't think we've ever gotten

17 the results of that.

18 THE COURT: I don't think it was introduced on

19 direct either.

20 MR. GREENFIELD: No. But it was in his report.

21 The last sentence of his report indicates that, I think it's

22 the last sentence.

23 THE COURT: If you have it, you have to turn it

24 over.

25 MR. SNELL: Okay, your Honor.

2741 1 THE COURT: All right.

2 (Adjourned to 9:30 a.m., Wednesday, July 24,

3 1996)

4

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2743

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 24, 1996 9:30 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD

24

25

2744

1 (In open court; jury not present)

2 THE WITNESS: Good morning, your Honor.

3 THE COURT: You can go have a cup of coffee or

4 something. I kid you not. You can stay if you want to.

5 THE WITNESS: Thank you.

6 THE COURT: At least it's not a Weinfield. He

7 would not acknowledge that you had arrived.

8 MR. GREENFIELD: I was here at 9:30. Your Honor,

9 I've got the daily newspapers for the Court. I didn't

10 withdraw the comics.

11 THE COURT: You turned over to me the racing

12 sheet, but not the comics. You included the comics today?

13 MR. GREENFIELD: Yes.

14 THE COURT: Did you take your --

15 MR. GREENFIELD: No.

16 THE COURT: Go ahead. Don't worry about it. As

17 a practical matter, David, I have a complete paper which was

18 purchased by the Marshals to be shown to the jurors and then

19 we decided not to show them anything at all. So they

20 haven't been getting the newspapers lately.

21 Anyway, now, I'm going to bring the jury out here

22 and I'm going to explain to them that I will be talking to

23 them individually. So that nobody gets the feeling that

24 they've been called to the principal's office I intend to do

25 the interview in the robing room, which is not a very large

2745

1 room. I am willing to have the lawyers in there. Normally

2 I would, but we have one defendant who is representing

3 himself. That means having marshals, et cetera, et cetera.

4 This gets to be a crowd.

5 MR. KULCSAR: Your Honor, Mr. Yousef has just

6 indicated and will indicate on the record that he waives his

7 presence.

8 THE COURT: Do you agree to that?

9 DEFENDANT YOUSEF: Yes, your Honor.

10 THE COURT: Okay, fine. You agree with it, fine.

11 Now, we'll take three people in, because the robing room is

12 not that big, and it's going to be hot very shortly, because

13 there is no air conditioning, except the window air

14 conditioner, and if I have a window air conditioner on two

15 things will happen, my brains will freeze because it's right

16 next to where I sit, and the second thing is, I won't be

17 able to hear what the jurors are saying. So I'm not going

18 to have that on.

19 First things first, we'll bring the jury out.

20 Now you understand what I was telling you before?

21 THE WITNESS: Yes, your Honor.

22 THE COURT: You want to go, go ahead.

23 MS. BARRETT: Your Honor, are you going to be

24 having testimony prior to doing this?

25 THE COURT: No. When I came out I told the

2746

1 witness he can go get a cup of coffee if he wanted to. He

2 said: Oh, I'll stay and watch. He's just decided he's

3 going to go get a cup of coffee.

4 Paul, you want to get the jury.

5 MS. BARRETT: Your Honor, just one more thing

6 during the testimony of the witness is it okay if my

7 computer expert sits right here? I've already spoken to the

8 Marshals.

9 THE COURT: Fine. If the Marshals don't object,

10 I don't object. Is your computer expert different than Mr.

11 Yousef's?

12 MS. BARRETT: Yes, your Honor.

13 THE COURT: Okay.

14 (Continued on next page)

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2747

1 (Jury present)

2 THE COURT: When I went to school as a kid I went

3 to one of those parochial schools up in the Bronx which was

4 populated by nuns that were at least 7 feet tall, who every

5 now and then used to give me a whack across the back of the

6 head for doing something wrong, not that I remember what it

7 was, but I'm sure it was wrong.

8 Seven years ago, I guess it was, I went with my

9 sister to the parish centennial and we went into the place

10 and it was a dinner dance, and there was one table which was

11 populated by the nuns. So my sister, Pat, took me by the

12 hand and marched me over to see all the nuns, and she was

13 very friendly with them, and so on. She said to me when we

14 left: Kevin, you didn't say anything after you said hello.

15 I said: You're right. I'm still scared of them.

16 Now, one of the worst things that ever happened

17 to me as a kid was sitting in class and all of a sudden they

18 would say: Go to the principal's office. That never

19 happened to you guys, right? It happened to me. Very

20 upsetting. So I don't like the idea, and I don't like doing

21 it to other people either.

22 Anyway, I am going to have to talk to each one of

23 you today individually, okay? It has to do with the

24 enormous amount of publicity that we've had in connection

25 with things that have nothing to do with this case. I'm

2748

1 going to talk to you individually and right now there are no

2 right answers, there are no wrong answers. You haven't done

3 anything wrong. Okay? Just understand that.

4 The only way you could do something wrong is to

5 intentionally, you know, say: I'm not going to pay

6 attention any attention to the old fat guy, and I'm going to

7 do whatever I want. And I can't do that. Other than that,

8 don't feel that you've done anything wrong, okay? I want

9 you to have those things in mind.

10 I'll be talking to you individually about all of

11 the publicity that we've been bombarded with over the last

12 week or so, but, please, don't feel that, you know, there is

13 any right answers or wrong answers. Just what the truth is,

14 okay? That means that I will be talking to you

15 individually. The rest of the guys hopefully are either

16 learning duplicate bridge, having a wild poker game or doing

17 something in there, but hopefully you will do something to

18 keep yourselves amused for a little while, okay?

19 So if you'd be good enough to step outside we'll

20 start in just a moment.

21 (Continued on next page)

22

23

24

25

2749

1 (Jury not present)

2 THE COURT: Now as a matter of pure psychology we

3 could do the individual talking to the jurors here in the

4 courtroom, but if we did, it would be all stiff and if it's

5 stiff it's not going to be of any help to anybody. I want

6 the jurors to be relaxed so much so that they will be

7 forthcoming with what the truth is. That's the reason I'm

8 going to do it inside.

9 I'm restricting the number of people in there,

10 since it's just too small to have any more. I want you to

11 know it is all going to be taken down on the record and you

12 will all have your transcript of exactly what happens so you

13 can read it all. The press is going to say: Oh, Judge, we

14 have to have somebody here, but I'm telling you right now,

15 they don't. They'll have the transcript, if they really

16 want it badly, I would imagine by this afternoon. So those

17 of you who are not involved, find something else to do.

18 One from each group. You it, Lillie, or you

19 going to let one of those guys do it?

20 MS. GRANT: I'll let one of them do it.

21 THE COURT: Okay. One from each group.

22 (In the robing room)

23 (Present: Mr. Snell, Mr. Kulcsar, Mr. Udell, and

24 Mr. Greenfield)

25 THE DEPUTY CLERK: The first juror is 222.

2750

1 (Juror No. 222 entered the room)

2 THE DEPUTY CLERK: Have a seat right here.

3 BY THE COURT::

4 Q Hello. How are you?

5 A Good.

6 Q Look, there's not a soul in this part of the

7 world who doesn't know about TWA Flight 800. We'd like to

8 know what you found out about it, what you've heard about

9 it, so on.

10 A Well, I've heard that an accident happened, and I

11 tried to avoid it, pretty much.

12 Q You've been avoiding it?

13 A That's right.

14 Q Have you read anything in the newspapers at all?

15 A No, I've seen the cover pages from far.

16 Q Well, you can't miss it. Lord knows, they have

17 it all over the place, don't they?

18 A Yes.

19 Q I don't know what you listen to in the morning.

20 Do you listen to TV or the radio?

21 A I don't in the morning.

22 Q You don't. I like it because it kind of gets on

23 my nerves and that gets my blood cooking. There have been

24 all kinds of allegations made.

25 I hope to God you recognize that everybody who's

2751

1 involved in this case has been in this courtroom from, it

2 seems like months now. This is the second month. There has

3 been wild speculation, all of it hot air, okay?

4 You took an oath, as I've told you, and reminded

5 you about, to do your job by deciding the case on the law

6 and the evidence, not the newspapers, not the TV, and I just

7 wanted to remind you of that.

8 A All right.

9 Q Thanks.

10 A Thank you.

11 Q Pizza tomorrow, is that what you guys want?

12 A Yes.

13 (Juror left the room)

14 MR. GREENFIELD: Pizza out or in?

15 THE COURT: I had them going to Stark's. Stark's

16 is a pretty nice restaurant. They would prefer to have

17 pizza so they can make it back at 2 o'clock without

18 difficulty, and, God love them, I'm going to do it.

19 MR. GREENFIELD: Judge, are you going to ask the

20 individual jurors if they are going to be affected by

21 whatever the speculation is, or you think that's not worthy

22 of inquiry?

23 THE COURT: I will if you want me to.

24 MR. GREENFIELD: I don't know. It's more of

25 somebody else's call.

2752

1 MR. KULCSAR: Your Honor, I don't know how you

2 can ask a question much more than the line that you are

3 pursuing. My concern and drawback about what you're going

4 to do, I'm not sure I can express it accurately or well, but

5 my concern is is that people ultimately are going to have to

6 go back to their families or communities and, you know, the

7 environment in which they live, and God willing I think for

8 the families of people on the plane it's better to find out

9 it wasn't the kind of horrible accident.

10 But if it's not that, and there is a reasonable

11 belief that some form of terrorism, with the political

12 climate of, you know, Senator D'Amato and other people

13 saying things about terrorists in general, my concern is

14 that these people ultimately will have to go back where they

15 live. And if they have in this case decided that the

16 evidence is not sufficient to convict and find the

17 defendants not guilty, there are going to be a lot of people

18 they're going to have to answer to, because people outside

19 of this courtroom have no idea what is going on here and

20 they are going to say: What the hell are you people doing

21 in there? You had the terrorist, you had this guy and says

22 he's guilty of this, he's guilty of that, he's alleged to be

23 involved with other terrorists and all that. And that there

24 is going to be some degree of accountability these people

25 are going to have.

2753

1 THE COURT: First of all, this is not a situation

2 such as was postured in the O. J. Simpson case where they

3 said all these people have to go back, they are all

4 identified. Everybody knew. I don't think all of these

5 people have identified what case they are on to the

6 surrounding community. To their families they have. I

7 think their families will understand no matter what.

8 MR. KULCSAR: I think families will.

9 THE COURT: This is why I prefer to do it this

10 way, the anonymous juror kind of thing, and you've got to

11 recognize now we've had, I personally sat in cases where

12 jurors have acquitted people. I mean, you remember the

13 Brinks case?

14 MR. KULCSAR: Sure.

15 THE COURT: All kinds of things there. You have

16 cop killings, you have terrorism, you have separatist group

17 and so and so forth, and yet the jury acquitted. I don't

18 think that's much of a realistic persuasion. But who is our

19 second juror?

20 THE DEPUTY CLERK: 129, Judge.

21 (Juror No. 129 entered the room)

22 THE DEPUTY CLERK: Have a seat right there.

23 Q Hello, how are you?

24 A How are you?

25 Q Well, what we're talking about is the TWA flight

2754

1 that went down off Moriches Inlet. There has been a heck of

2 a lot of speculation in the media. They hook it up with

3 everybody in sight, okay? And it's pure nonsense. But I

4 wanted to know how much you've heard in all of this?

5 A Well, the first I heard my, I was leaving to come

6 to court last Thursday. My daughter said that there was a

7 plane crash. And the rest just as I'm passing taking the

8 train, just like headline, and, but I have not read anything

9 or watched the media at all.

10 Q I know you can't miss some of the headlines.

11 A Yeah, I've run past them.

12 Q They've been screaming. All you got to do is

13 walk across Grand Central station and you see it.

14 A Yeah, but I have not, no.

15 Q Look, I've got to tell you something. Now,

16 that's the reason I wanted to talk to you individually. The

17 law says I have to have others here, but otherwise I

18 wouldn't. The thing is you and I know that everybody

19 involved in this case has been here with us for God knows

20 how long, two months?

21 A Yeah, I think it's been.

22 Q And you know all of this crazy speculation is

23 bonkers, but I describe what's going on I think aptly. The

24 press has something to write about, but they don't have

25 anything to write about, so they are now reduced to

2755

1 interviewing each other, and if you watch the TV news that's

2 exactly what they're doing.

3 That indicates that they are giving all kinds of

4 wild speculation. What I want you to realize is, you can't

5 pay attention to the crazy --

6 A No. Well, since the start of the trial I have

7 not talked about it, my kids I think finally realize what

8 trial. But I've, you know, I said: No, I can't talk about

9 it. I won't talk about it. And even as far as what

10 happened last week, if I see a headline with it, or the news

11 I just, I just don't read it and I won't look at it.

12 THE COURT: You're a sweetheart. Don't tell

13 anybody I said that.

14 (Juror left the room)

15 THE DEPUTY CLERK: 145.

16 (Juror No. 145 entered the room)

17 Q How are you doing, friend?

18 A I'm all right.

19 Q I don't know if in your end of the business they

20 call it a media frenzy. It's like a feeding frenzy and so

21 on and so forth. Ever since the airplane went down in

22 Moriches Inlet there, there has been all kinds of

23 speculation, and I would be out of my mind to think that you

24 folks don't walk along the street and see a headline. God

25 knows some of those headlines are giant. I'd like to know

2756

1 what, if anything, you've heard, and after that, if it will

2 affect you in this case. Simple?

3 A Well, obviously I knew it happened.

4 Q Oh, sure.

5 A Obviously.

6 Q I'm no fool. You're not a fool. We're not going

7 to fool anybody.

8 A But since then I've made an extra effort, I have

9 not even watched television. I have not read the papers,

10 and my limit of what I've seen or heard has been like, you

11 know, you ride the subway and the person next to you goes

12 like this with the paper, you know, and you just, you sort

13 of like see the front page, and then you turn away. That

14 honestly has been my limit. I really, I have not heard

15 anything else except for what the front page of The Post

16 thinks, you know, something like that.

17 Q Well, the biggest problem always is when the

18 media has something to write about, but they have nothing to

19 write about. They speculate. They speculate wildly. I had

20 heard yesterday -- I didn't personally hear it, but I was

21 told that there was a story on one of the news stations that

22 I had declared a mistrial in this case. Now, if I did I

23 hadn't noticed, and I didn't think you did either.

24 A I didn't notice that.

25 Q But that's the kind of silliness. Anyway, just

2757

1 for God's sake, recognize our job, yours and mine, pay

2 attention to what goes on here. Eventually your job will be

3 to determine the facts. It's not my job. You will notice

4 that I'm studious about my word. I'm worried that you guys

5 get to see what the exhibits are, the guy showing you the

6 bands yesterday, I couldn't see a thing. Did you know that?

7 But it didn't matter.

8 A Okay.

9 Q Why? Because I'm not making the factual

10 determination. You guys are. And I got to tell you it's at

11 times a tough job. It's made more tough by this unnecessary

12 speculation. I just hope that you realize it's crazy

13 speculation.

14 A I do. I do. And to answer your question, you

15 know, I, I have no intention of letting anything affect my

16 considering the facts, only because I've really tried hard

17 to stay away from everything.

18 Q I have absolutely no doubt about it. There are

19 times in life when you know you can trust somebody. Thanks.

20 A Okay. Thank you.

21 (Juror left the room)

22 THE DEPUTY CLERK: Juror No. 132.

23 Q Red is extremely attractive color for you.

24 A I'm sorry?

25 Q Red is an extremely color for you.

2758

1 A Thank you.

2 Q You know, look, you guys are in charge of

3 deciding the facts. I'm just out there to worry about the

4 law and the logistics. So I notice all kinds of things,

5 okay?

6 A Thank you.

7 Q I must tell you that I would be a fool and you

8 would think me a fool if I didn't know that you have seen

9 all kinds of headlines about this, that, and the other thing

10 that Flight 800 TWA. Have you? Now, look you put on the

11 TV, there is some chubby guy from the FBI showing up, so on.

12 It's what he is. What do you want from me? All kinds of

13 stuff.

14 I wanted to talk to you about that. Okay?

15 A Okay.

16 Q Well, first of all, what have you read?

17 A About the Flight 800?

18 Q Yes?

19 A Well, I know that it went down, and I know that

20 they don't have any information yet. Nothing is really

21 conclusive.

22 Q They don't have any information not only that's

23 not conclusive, they don't have any information, period.

24 But they've lots of speculation. Have you heard any of

25 that?

2759

1 A Yes, I've heard speculation.

2 Q Now, some of the speculation has been absolutely

3 off the walls, okay? Speculation, for example, about the

4 cause and they don't know. I'm telling you they don't know.

5 But not only is there speculation, but wild

6 accusations, bonkers stuff, and I wondered if you had run

7 across any of that?

8 A Usually what happens my day is very short. By

9 the time I come home, I don't watch news, and I don't read

10 the papers per se, just articles here and there. And I know

11 that we are instructed not to do that anyway, and being that

12 the Olympics is on that's been my concentration. And I

13 usually am in bed pretty early, so I don't spend a lot of

14 time on watching, I don't really watch the news at all at

15 night. I don't turn it on. By the time I get home the news

16 stations are off and I'm asleep before the late evening news

17 comes on.

18 Q Good for you. How did you like the Olympic

19 gymnasts last night?

20 A I was asleep before that came on.

21 Q You're kidding.

22 A After the swim meets, and then I had a phone

23 call. I have to make my phone calls in the evening, but I

24 heard about it.

25 Q Poor little kid was hurt.

2760

1 A She won. She's very motivated.

2 Q A lot of guts.

3 A I think so.

4 Q Anyway, so I have to ask everybody, please

5 understand.

6 A Yes, I understand.

7 Q Okay. Pizza tomorrow. You guys really want

8 pizza?

9 A Yes, that's what we voted for.

10 Q Hey, listen, actually I'm in charge not only of

11 signing the bill at the end, but we got into a discussion as

12 to where to get the pizza.

13 A Oh, my God. Well, we hope we don't cause you too

14 much trouble.

15 Q Hey, no problem at all.

16 A Thank you.

17 Q It is my pleasure.

18 A Thank you.

19 (Juror left the room)

20 THE COURT: Next.

21 MR. GREENFIELD: Judge, we just never found out

22 what the speculation is that she heard. She said at one

23 point that she heard speculation. Then she went into the

24 Filipino mode of answering questions. She goes to sleep and

25 doesn't know nothing. If you want to save it for later.

2761

1 You know, what, Judge, save it for later. Let her go.

2 THE COURT: Let it go.

3 THE DEPUTY CLERK: Juror No. 200.

4 Why don't you have a seat right here.

5 Q How are you doing? Was my description of school

6 days accurate?

7 A Yes, a little nerve wracking.

8 Q Please, for God's sake, relax. As I said

9 outside, there is no right answers, there is no wrong

10 answer.

11 Let me start at the beginning. You know, I even

12 mentioned to you about Flight 800?

13 A Uh-huh.

14 Q Now, I would be a fool and you would take me for

15 a fool if you told me that you never saw anything in

16 connection with that?

17 A Uh-huh.

18 Q You have to. Walking through the, if you go to

19 Grand Central or wherever you go to, you look there and

20 there's all kinds of newspaper headlines, this, that and the

21 other thing. Some of it is crazy speculation. I mean

22 really crazy speculation. What I'm interested in knowing is

23 if you heard any of the crazy speculation?

24 A No, I don't, I'm not sure I know what you're

25 referring to, what you mean.

2762

1 Q Well, for example, do you know what the cause is?

2 A Oh, I -- no, I don't.

3 Q Well, they've been speculating on the cause.

4 A Right.

5 Q Did you know that?

6 A No, I have not read anything about it, and I, I'm

7 not much of a TV watcher, so other than just seeing the

8 headlines on the news, that's all I've really known about

9 it.

10 Q Well, have you seen any of the TV news?

11 A No. I don't watch the news.

12 Q Well, they have been coming up with some of the

13 most bizarre speculation that you've ever run across. But

14 the question basically is, some of these people, they don't

15 know either. They put this out as if it were the facts and

16 I'm telling you right now that as of this morning, not

17 through the media, but as of this morning, my sources which

18 are pretty good, they don't know what the cause is yet.

19 A Right.

20 Q And I just want to know if you've run across any

21 of the craziness that goes on?

22 A No, I guess not.

23 Q Fair enough. Don't be disappointed.

24 A Oh, I feel like I've given the right answer.

25 Q Of course you've given the right answer. That's

2763

1 why I said there's no right answer.

2 A I know, I know.

3 Q Besides that, it gives us a chance, it gives me a

4 chance it to see each one of you individually, hopefully

5 things are going along, you know, the things I can take care

6 of, food.

7 A Oh, yes, right.

8 Q And the guys who are you with?

9 A Yeah, they're all right.

10 Q No problems?

11 A No, no.

12 Q Although you selected pizza tomorrow.

13 A Well --

14 Q You think I'm fooling? We're getting pizza.

15 A Well, thank you.

16 Q I don't know what other judges do, but I think

17 that the jury is the most important part of the whole

18 operation, and I make darn well certain if we can treat you

19 decently, we're going to do it. All right? If you have any

20 complaints --

21 A Thank you.

22 THE COURT: Thank you much, my dear.

23 (Juror left the room)

24 MR. GREENFIELD: Can I have a minute to ask one

25 of my investigators something?

2764

1 THE COURT: Yes.

2 (Mr. Greenfield left the room and reentered the

3 room)

4 THE DEPUTY CLERK: Juror No. 106.

5 Q You want to know what's going on? I'm yelling at

6 him to give up smoking.

7 A Oh, good advice.

8 Q Surprised to find out that we're all human

9 beings?

10 A I'm not surprised.

11 Q By this point you should recognize. Anyway, the

12 crash, airplane crash out in off East Moriches?

13 A Moriches, yes.

14 Q What you have heard about it, if anything, I

15 don't know.

16 A Well, I'm aware.

17 Q I mean other than what I've told you.

18 A Okay. I've heard some of it from the news, about

19 the crash itself.

20 Q Did you run into, there have been a lot of crazy

21 headlines, okay? I assume you've seen those?

22 A I've seen some, yes.

23 Q I don't know. Do you ride the subway?

24 A No, I don't.

25 Q Well, if you did, you'd see the headlines. God

2765

1 knows, just walking down the street these days you see all

2 kinds of stuff. There has been a lot of speculation. Have

3 you run into any of the crazy speculation? They don't even

4 know what the reason for the crash is now, but they're

5 speculating. Have you heard the speculation about it?

6 A I have heard.

7 Q You haven't or have?

8 A No, I said I have.

9 Q What have you heard?

10 A Well, I've heard possibly the cause of it --

11 Q Yes?

12 A -- could be a bomb. I've heard that.

13 Q And you know that's speculation, pure

14 speculation?

15 A Sure.

16 Q Unmitigated speculation. And of course you have

17 the real whackos in the world saying: Oh, there was

18 testimony, or there was something that had to do with a bomb

19 in one of these lawsuits, and they start, they don't quote

20 the testimony, they make up things alleged to be in here.

21 Did you know that?

22 A I'm aware of that sort of thing, yes.

23 Q Well, I'm talking about in this case.

24 A Oh, in this case? Well, I haven't read anything.

25 Q Did you hear anything on the radio or the --

2766

1 A I don't.

2 Q Do I look like I'm 73 years old?

3 A No, not to me.

4 Q All right. I'm not. But the newspapers have

5 reported me to be that old.

6 A Oh, really?

7 Q The newspapers have reported that I have a

8 granddaughter. I don't. The closest thing I have is my

9 son, Gavin, has a Dalmatian. Now there is no family

10 resemblance between the Dalmatian and me, okay?

11 A That's stretching it I think.

12 Q But the newspapers have had me having a

13 granddaughter, and so on and so forth. I would love to have

14 a granddaughter, I must tell you. Don't put that in, the

15 kids might hear about it.

16 Anyway, what I'm trying to say is if you

17 encounter the real crazy stuff, for God's sake, you better

18 put that aside. Do you have any difficulty with that?

19 A I don't think I will, no.

20 Q Okay, fair enough. Fair enough. Did you vote

21 for the pizza?

22 A Yes, I did.

23 Q Okay. We're trying to do it.

24 A You're going to try to come through, good.

25 Q Okay? I don't know. I was explaining to the

2767

1 last young lady who was in here that my job is to make sure

2 for the care of the logistics and the law, and that includes

3 care of the jury because they are the ultimate judges of the

4 case.

5 You'll hear me discuss this at great length, but

6 I feel very strongly about that. So if you guys have any

7 problems I want you to let me know about it. Okay?

8 A Okay.

9 Q And if you have any problems with the idea of

10 saying: Hey, maybe I've heard some crazy thing that I

11 shouldn't have heard, and maybe it doesn't belong in, and

12 maybe it does, but it might affect me, you just come and

13 tell me. Don't worry about it. I assure you there is no

14 such thing as a right answer or wrong answer.

15 A All right. I will.

16 THE COURT: Thanks. See you.

17 THE DEPUTY CLERK: Juror No. 92.

18 Q How you doing, friend?

19 A Very well, thank you. How's everybody?

20 Q Did I see from one of your T-shirt that you were

21 a gyrene?

22 A Yes, sir. The few, the proud, the chosen.

23 Q I bet you couldn't do 20 pushups now though?

24 A 20?

25 Q Yes.

2768

1 A I could probably give you 20.

2 Q You could?

3 A I don't know where I'd be after 20.

4 Q I know I couldn't.

5 A Pushups, yeah. Chin-ups are out but pushups I'd

6 probably give you.

7 Q Anyway, what we're in here talking about besides

8 your service-connected activities, but rather what's going

9 on in the world around us today. You know about the air

10 crash of TWA flight?

11 A Yeah.

12 Q Everybody knows about it. There has been some

13 pretty intense speculation. Since the news media know that

14 they have an event, and they have to report on it, but they

15 don't have anything to report, they make up things, or some

16 of them do.

17 I was wondering if you had encountered any of the

18 wild speculation going on?

19 A Not really. When you walk through your house and

20 your wife has the TV on, you hear a little bit, you walk

21 past the newsstand you look down, there's a headline on the

22 paper, but other than that, I would say no.

23 Q You know, for example, they don't know the reason

24 that the airplane went down?

25 A Right.

2769

1 Q And yet there's all kinds of crazy speculation as

2 to why. They have such a thing as surface to air missile

3 possibility. They have this, they have that, they have all

4 kinds of stuff. And of course since we're trying a case

5 right now in which the allegation is that people were

6 thinking about putting bombs on board airplanes, hey.

7 So have you heard any such speculation about

8 that?

9 A Not really. Just like I said before, whenever

10 I've passed through the room or walked past newsstands you

11 look down.

12 Q Did you tell the folks at home that you were

13 sitting on this case?

14 A My wife? Yeah.

15 Q But the others?

16 A My mother and them? No, I just told them I'm on

17 a case in New York.

18 Q Just wondering. That's the best way to do it.

19 Okay, my friend?

20 A All right, that's it? Thank you.

21 THE COURT: Thank you.

22 (Juror left the room)

23 (Juror No. 365 entered the room)

24 Q How you doing?

25 A Hello, how are you?

2770

1 Q Good. Your number is 365 like the number of

2 days?

3 A Yes. That's actually a good thing. It's a good

4 luck number.

5 Q I once went to a an island called Dominica. Do

6 you know it?

7 A No, but it sounds good.

8 Q It's down in the Caribbean. My one time I went

9 on a cruise. It was interesting. I took my retirement

10 money and shot it on a cruise.

11 A The whole thing?

12 Q But, anyway, there were 365 rivers on the island

13 of Dominica.

14 A Uh-huh.

15 Q And I wanted to know how they could get names for

16 all of them. The response was: It's easy. Every time I

17 hear 365 I think of that.

18 We're talking to each juror, I assume you know

19 what it's about, about the crash of the TWA airplane?

20 A Uh-huh.

21 Q In fact, we had talked among ourselves about the

22 same thing. The newspapers, the media went into a frenzy.

23 They're expected to report on something and yet they've

24 really had nothing to report.

25 A Uh-huh.

2771

1 Q So my description of what's going on is, they're

2 interviewing each other.

3 A Uh-huh. It's normal.

4 Q This gives rise to all kinds of wild speculation.

5 A Uh-huh.

6 Q There is no reason, we don't know the reason.

7 A Right.

8 Q It hasn't been proven as to why the airplane went

9 down.

10 A Uh-huh.

11 Q There are all kinds of speculation.

12 A Of course. It's in every tragedy.

13 Q And I mean, I couldn't believe that you weren't

14 exposed to some of it.

15 A As of Wednesday, right.

16 Q There was one crazy story where they had some guy

17 had a single engine airplane doing a kamikaze into the --

18 A Really?

19 Q Oh, yes.

20 A I didn't see that. Oh, my God.

21 Q So anything will go. There is the possibility of

22 mechanical failure.

23 A Uh-huh.

24 Q The possibility of sabotage aboard the airplane.

25 A Uh-huh.

2772

1 Q There is a possibility of all kinds of stuff and

2 they're making them into probabilities, and then they are

3 making it from there into: Well, let's see what else is

4 around that they we can link it up with.

5 A Uh-huh.

6 Q You know as well as I do what this case is about?

7 A Uh-huh.

8 Q Have you heard any speculation --

9 A No.

10 Q -- at all?

11 A No. And I keep myself away from it purposely.

12 As you know my husband is a police officer, and I do not, he

13 does not know what type of case I'm on. I do not bring it

14 home when I leave here in the evening. I do work out so

15 that relieves the stress, and I don't know, my family has

16 been kind enough, they don't know what kind of case I'm on

17 either, but they have mentioned, you know, things, it's a

18 tragedy that happened or whatever the case may be. Nothing,

19 they haven't even mentioned any type of speculation.

20 I don't know if they read the papers, you know,

21 but I haven't, and I keep myself away from the news and I

22 keep it on mute so I can just see the weather, and you know,

23 I don't, I don't know. I only was exposed to it Wednesday

24 evening prior to coming here Thursday morning, and you

25 discussed that with us then. I have not.

2773

1 So again, anything that has gone around in my

2 presence whether I'm in the gym or, you know, on the form of

3 transportation that I take to get here, the basic thing has

4 been it's a tragedy. There has not been any discussion as

5 far as what people think actually happened. In my opinion,

6 people are more still saying things like: We don't care

7 what happened. It's just, isn't it sad that these people

8 are gone.

9 Q Yes.

10 A I don't know. I didn't even know the part about

11 the speculation that there was a private -- but I'm fully

12 aware of what the media does. Having worked in radio and

13 investment banking I'm fully aware of what the media does,

14 so I know.

15 Q Well, you going to have any problems if you run

16 across any of the speculation in discarding it?

17 A Excuse me?

18 Q Do you think you'll have any problems if you run

19 across any of the speculation in discarding it?

20 A No, I know how to. No, I won't have any

21 problems. Like I said, I don't, I keep away from it and

22 most of my family and friends do know that I'm on jury and

23 they know that I can't watch the news anyway prior to this

24 happening, so nothing is, no. No.

25 Q I'm glad to hear that.

2774

1 A Okay.

2 Q Are you the leader of the pack for the pizza?

3 A No. I wasn't, but it sound like a good idea. I

4 mean I got to splurge once a week. I'm trying to eat

5 healthy the rest of the day.

6 Q You figure if you go to the gym every night --

7 A So I figure pizza's a good thing. I can have as

8 much of that for one day as I can take.

9 Q Have you teased the fellow that came in with the

10 Marine shirt?

11 A 92?

12 Q Ask him to do chin-ups with you?

13 A Well, they keep telling me that the joke is if we

14 have to become sequestered they're like, you fight for a

15 exercise gym 'cause you're the only one here that goes to

16 work out. So you ask the Judge, can we at least get a

17 treadmill. So I said I'll be the one to go in and ask for

18 that.

19 Q One, you're not going to be sequestered.

20 A Okay.

21 Q Two, if you are sequestered, I will guarantee a

22 treadmill.

23 A A treadmill?

24 Q Not a treadmill, access to a workout room.

25 A Okay, good, thank you.

2775

1 Q But you're not going to be, unless, you know if

2 I'm not around maybe you'd be, but I would think that's the

3 kind of thing --

4 A That's what 92 said. I'm just passing it on. If

5 so, I'm to bring that to the table.

6 Q Okay, you've done it. You've done your job.

7 A Thank you.

8 (Juror left the room)

9 (Juror No. 155 entered the room)

10 Q Hello.

11 A Hello.

12 Q Now, you feel probably like you've been called to

13 the principal's office?

14 A I definitely do, definitely.

15 Q Don't. Don't. Look, we all know that there has

16 been enormous flood of publicity about the TWA Flight 800?

17 A Uh-huh.

18 Q If you've been on the planet someplace in this

19 area you have seen some of it. And I'm sure you have. But

20 because the media feels -- at least in my projection of it

21 is, my understanding of it is, since the media feels that

22 they have a newsworthy event, they don't have any news,

23 they've been filling it with the wildest speculation you

24 ever heard, and that's the problem.

25 It's not really a problem. It's they're not

2776

1 reporting it as speculation. They're reporting it as all

2 kinds of like real things.

3 Now, one of the neatest little bits of

4 speculation, how do these things happen, you know, what is

5 possible, so on and so forth. So that some of the media

6 people have decided to link this case in with that. Have

7 you heard any of this stuff at all?

8 A I try to stay away from the whole thing. I know

9 there was a crash of course, 'cause I went on TWA the next

10 day to Miami and the airport was all abuzz with it, but I

11 have attempted in every way to stay away from all the

12 implications, ramifications, whatever is going on with it.

13 Q You and I know that we've been all been here for

14 two months. We've not been any place else. And I just want

15 to make sure that if you are exposed to any of the crazy

16 speculation you can just say, that's crazy speculation.

17 A (Nods head).

18 Q That's it.

19 A (Nods head).

20 Q Is that difficult?

21 A It's not difficult to do, no.

22 Q It is difficult to do. It's like if you were

23 told, don't think of a large white elephant, okay, and the

24 more you concentrate on the idea of not thinking about a

25 large white elephant, the more the large white elephant is

2777

1 going to come in here.

2 Well, at times you get this craziness come up,

3 and it gets stuck in your mind. And I just wanted you to

4 insofar as possible say, none of that stuff.

5 A (Nods head).

6 Q Okay. That's all.

7 A Okay.

8 Q How are you doing otherwise?

9 A Fine. We're getting along well. It's, it's

10 long, but it's working out.

11 Q Good. I've been trying to do things to make life

12 a little easier. Some of it I hope is working. I don't

13 know about this breakfast, hot breakfast?

14 A Oh, we love that. That's one of our, that's one

15 of the highlights of our time.

16 Q These guys I don't think knew about the hot

17 breakfast.

18 MR. GREENFIELD: No. Where's ours?

19 Q I thought that Stark's would be good, but I

20 understand tomorrow is pizza day.

21 A Yes, yeah, I opted for Le Cirque, but you know,

22 pizza.

23 Q We do our best. If you have problems let me know

24 about it?

25 A Okay.

2778

1 THE COURT: Thanks much.

2 Q You were looking for your pocketbook?

3 A Yes, how do you know all those things?

4 THE COURT: I just watch your eyes.

5 (Juror left the room)

6 (Juror No. 364 entered the room)

7 Q How are you doing, friend?

8 A Fine.

9 Q Good. There occurred an incident about a week

10 ago, a plane went down over East Moriches. Do you know

11 about it? You know about it, I'm sure. You can't walk

12 through the City of New York without seeing a headline about

13 it, so on and so forth, Flight 800.

14 And I don't know whether you walk in the city or

15 someplace else, but I'm sure you've seen it.

16 It has also been the newspapers and the media do

17 not have any real information, so since they don't have any

18 real information, they engage in wild speculation, okay?

19 A Okay.

20 Q Now, some of the wild speculation is the

21 suggestion that there may have been an explosion on this

22 airplane. Whether there was or if wasn't doesn't mean a

23 damn thing. But some of the wild speculation, in order to

24 explain the explosion and so on and so forth, they've been

25 taking and saying: Oh, this case down in the federal court,

2779

1 all right? It has nothing whatsoever to do with it.

2 But I wanted to know if you have heard of any

3 kind of speculation whatsoever about this?

4 A No, I don't read papers. I don't -- actually

5 today I see the people paper on the train, and, but I stay

6 away. I just try to follow your request to stay away from

7 the news like that.

8 Q Have you seen anything on TV at all?

9 A Well, Judge, it's going to shock you, but I just

10 don't. I just watch Yankees play baseball and I don't watch

11 the news, and if I am in an area in the house where the

12 television is on, I hear one of the kids say to me: Dad,

13 you can't watch this, you know, stuff like that, and I just

14 go someplace else. You said early on to make a decision you

15 have to be like have an open mind.

16 Q Yes. And you're a Yankee's fan?

17 A Sure, sure. There's no cricket team around here.

18 Q You can go to Van Cortland Park. Have you not

19 gone there?

20 A I've been there, yes, I have.

21 Q I used to live in that neighborhood. I used to

22 go up there and watch it quite often. I don't know. But

23 the Yankees, I will admit, I had an opportunity to go to a

24 Yankee ballgame and I said that as soon as you get rid of

25 George Steinbrenner, I'll go.

2780

1 Do you know the feeling?

2 A I sure do. It's called checkbook baseball.

3 Q Checkbook baseball. That's all the guy does.

4 It's all he's interested in is his bottom line.

5 A Yes, sir.

6 Q Do you expect him to move over to New Jersey?

7 A They'll be going without me, Judge. I won't be

8 going there.

9 Q I won't be going there either. Anyway, okay.

10 A Thank you very much.

11 Q Thank you.

12 (Juror left the room)

13 (Juror No. 198 entered the room)

14 Q How you doing, friend?

15 A Good morning.

16 Q There was an airplane crash off East Moriches a

17 week ago. As of now nobody has any hard facts as why the

18 airplane went down. The media is faced with the situation

19 where they're not sure of what went on. They need to report

20 something they feel, but they don't have anything to report,

21 so they make up things. Okay?

22 It's the truth. I mean that's what's going on.

23 A Yeah.

24 Q And they have been engaging in the wildest

25 speculation. I want to know if you had encountered any of

2781

1 it? Some of it has been on the TV. One station I know did

2 an awfully long thing for a couple of days. It seemed like

3 everything revolved around the crash.

4 And the newspapers, God, they've been, some of

5 them have gone really to the point where they have ten pages

6 and they don't say anything in ten pages at all.

7 But I wondered if you had seen any of this stuff?

8 A I mean I ride the subway, you do see headlines,

9 and I'm aware of what did happen to the courtroom.

10 Q To the --

11 A I mean through the courtroom I'm aware of what

12 happened. But basically that's about all I know.

13 Q Okay. Well, as I said there has been

14 speculation. And there is a problem with speculation. It's

15 a problem having jurors speculate.

16 A Well, that's not our job to speculate.

17 Q That's right. But as I said to one juror, it's

18 like saying, don't think about the white elephant, you know

19 what I mean?

20 A Yeah.

21 Q So if you run across it, you're going to have to

22 work hard to make sure to keep that stuff out of your head.

23 And I just am warning you, and I'm begging you to avoid if

24 it's at all possible. That's all. Easy enough?

25 A Sure.

2782

1 Q Now, I have gotten requests for everything from

2 pizza to treadmills?

3 A Treadmills?

4 Q You don't want a treadmill, do you?

5 A I don't need a treadmill.

6 Q But you'll take the pizza if it comes in

7 tomorrow?

8 A Sure.

9 THE COURT: Okay, good enough. Thanks.

10 A Thank you.

11 (Juror left the room)

12 (Recess)

13 (In the robing room)

14 (Juror No. 356 entered the room)

15 Q How you doing, friend?

16 A Okay.

17 Q You wondered why we delayed so long?

18 A Yeah. It crossed my mind.

19 Q Unlike you, you have coffee in there. We went

20 and got some. Actually, we did take a break.

21 What I'm talking to everybody about today is the

22 airplane crash off Center Moriches. The media has deemed it

23 a need for news and there isn't any, so that they are

24 engaged in speculation. And I would be a fool to think that

25 you haven't been exposed to some of the headlines and the TV

2783

1 and the radio and all the rest of it.

2 I just wondered what had come to your attention.

3 A The night of it of when it happened, I don't know

4 if it was Thursday or Friday, I don't remember, but I was

5 slipping through the channels, and I saw the wreckage in the

6 water fire. I watched it for a little while. I didn't know

7 what it was. And they said a plane went down on Long Island

8 over there, so I turned the channel.

9 And the next day I spoke to my boss at work and

10 he said, you know, you don't have jury duty today? I go,

11 no. He said, you hear about the plane crash? My God I saw

12 it on the news. He's like, what do you think? I don't

13 think I should talk about it. He said, oh, oh, oh, okay,

14 okay, that's all right.

15 And, you know, I've seen like pictures of it on

16 the news and things like that, but I haven't really, haven't

17 really watched the news to see what was going on or

18 anything. So you know, I don't know.

19 Q Well --

20 A I just know it was a plane crash, and a lot of

21 people died.

22 Q There was a plane crash and they had speculated

23 about all different kinds of crazy reasons for it. And I

24 must say they have been really pushing the outer envelope of

25 propriety.

2784

1 Anyway, I just hope that you haven't been exposed

2 to speculation which would in any way affect your decision

3 here.

4 A I haven't. Only that one day I saw it on the

5 news. I see it, you know, I see the headlines on the

6 papers, other people's papers that there was a crash. I

7 mean, you know, I know there was a crash, but you know, I

8 don't know what caused it or what they're saying or

9 anything.

10 Q Well, they're speculating that it is this, that

11 and the other thing. Most of all, and most important is for

12 you not to engage in any of that speculation. Do you have

13 any difficulty with that idea?

14 A No, none whatsoever.

15 Q Fair enough.

16 A Okay.

17 Q Thank you, sir.

18 A You're welcome.

19 (Juror left the room)

20 (Juror No. 345 entered the room)

21 JUROR NO. 345: Good morning, how yo'all doing.

22 Q Hello, friend, how are you?

23 A Fine, your Honor.

24 Q We're talking about the crash of TWA Flight 800.

25 A Yes.

2785

1 Q You can't have avoided it.

2 A No, no, I didn't, no. Nobody can avoid it.

3 Q There has been some wild speculation about it,

4 too.

5 A Uh-huh.

6 Q I wondered if you had been exposed to any of it?

7 A In speculation I can't really get around all of

8 that stuff that they're saying, because people go visit

9 people, but mainly what I wanted to explain to your Honor

10 and to defense lawyers is you have no problems from me

11 because I, too, had to be on the stand, so I know what Mr.

12 Yousef is Wali Khan and Mr. Murad what they all have to go

13 through, honest. You got, you got my vote on the stand.

14 None of that affects me whatsoever.

15 Q Okay. Well, I just don't want you making up your

16 mind on stuff that has nothing to do with this case.

17 A No, sir, no, sir. I understand. 100 percent, I

18 understand 100 percent.

19 Q Fair enough. All right. Thank you.

20 A Thank you, gentlemen. Thank you, your Honor.

21 You, too.

22 (Juror left the room)

23 (Juror No. 355 entered the room)

24 Q Greetings, friend.

25 A Good morning.

2786

1 Q We're talking today about Flight 800, TWA flight

2 that went down?

3 A (Nods head)

4 Q There has been pretty intense speculation by the

5 various media about it, newspapers have all kinds of

6 speculation, the TV and the radio and all the rest of it.

7 We've wondered if you have encountered any of it, because

8 truthfully you can't avoid it.

9 So have you, and if so, what have you seen or

10 heard?

11 A I haven't seen anything, but you know ride on the

12 train, you know, the papers, I try to, you know, ignore

13 that.

14 Q Yes.

15 A And I mean --

16 Q The headlines are there. You can't miss it.

17 A Yeah, but other than that, I'm, I play a lot of

18 basketball. So my time is mostly --

19 Q You still playing half court basketball at your

20 age?

21 A Full court.

22 Q Full court?

23 A I get tired, you know. But I'm not going to say

24 I haven't, you know, seen the headlines.

25 Q But you're really still into full court?

2787

1 A Yeah.

2 Q You still got the wind for that? I know I don't.

3 A Yeah. Well, I do.

4 Q There is a friend of mine who is now 74 who plays

5 basketball with the kids every Saturday. He plays for an

6 hour, half court. It's ridiculous.

7 A There's no fun in that.

8 Q No fun in that?

9 A I mean I don't play everyday,

10 Q My friend, if you were 74 and you could play half

11 court basketball you'd do it, wouldn't you?

12 A Yeah.

13 Q All right. Most important, if you encounter any

14 of this speculation I want you to avoid it, ignore it.

15 A (Nods head).

16 Q You can not decide anything upon somebody's

17 speculation in the media. You understand that?

18 A Yes.

19 Q Good enough.

20 (Juror left the room)

21 (Juror No. 341 entered the room)

22 Q Hello, how are you?

23 A Okay.

24 Q We're talking with each person about the Flight

25 800 off East Moriches. We know it went down. Everybody

2788

1 knows it went down. Tremendous loss of life. The

2 newspapers, the media knows that everybody wants to know

3 what caused it, and they don't have any answers so they make

4 up things, and they've been putting out the craziest kind of

5 nonsense you ever saw. It's speculation.

6 We just wondered if you had run into any of the

7 speculation? Now, you can't tell me, and I would be a fool

8 to even think that you didn't go through the City of New

9 York someplace and see the headlines. Yes, you've seen the

10 headlines? Do you ride the subway, hon?

11 A No.

12 Q Well, if you did, you know you'd see them. But

13 even wherever you go I'm sure you see the headlines, yes?

14 And when you go home, I don't know if somebody else is in

15 the house, they have the TV on, there has been a lot on all

16 the TV stations, and I just wondered if you had run across

17 any of it, and if so --

18 A I'm too busy with my six-year old.

19 Q Okay. Fair enough. Six-year olds are better

20 than two-year olds but let me tell you something, if you

21 think you're six-year old gives you grief, wait until

22 they're 18, or even 36, which is the oldest mine is. Kids

23 are that way.

24 A (Nods head).

25 Q But you haven't been involved in any of this?

2789

1 A No.

2 Q Have you seen any of it?

3 A I didn't read the paper, stay away from the TV.

4 Q Okay. All right. Did you vote for the pizza

5 tomorrow or did you want to go out?

6 A Pizza.

7 Q Okay. I understand it was a majority vote. Good

8 enough. Thanks, hon.

9 (Juror left the room)

10 (Juror No. 112 entered the room)

11 Q How doing, friend?

12 A Good morning, Judge. Good morning.

13 Q We're talking about aborted Flight 800 to Paris.

14 A lot of people were killed in that crash. What has

15 happened is the news media believes that they have to report

16 something about it, and there is nothing to report. So

17 therefore, they have engaged in wild speculation.

18 Now I would be kidding myself and everybody else

19 if I thought that people weren't exposed to it. I don't

20 know how you travel back and forth to the courthouse here,

21 but I'm sure that you see the newspapers. Am I correct?

22 A Yeah.

23 Q You ride the subway you got to see the

24 newspapers, and some of the headlines have been outrageous.

25 All speculation. What have you seen, what have you heard?

2790

1 A Virtually nothing from, first thing in the

2 morning basically I get up, I listen to the weather channel

3 just for the weather, and then I put on ESPN for exercise

4 training, before I come. Since I'm going to be sequestered

5 I might as well pump out a little bit. By the time I get

6 home the end of the day I'm watching the Three Stooges and

7 that's when I go to sleep. So that's about all I'm doing.

8 Q Who were the Three Stooges? Is that Manny, Moe

9 and --

10 A Yeah,

11 Q Who was the other guy?

12 A Actually, the first, the first original in '32

13 was Moe, Larry and Curly. Curly because of a stroke retired

14 in '45. The older brother Shemp came on to '55, he died,

15 and then Joe Besser came on to '59.

16 And then afterwards when television was in its

17 infancy, the Three Stooges got a rejuvenation, they went to

18 motion pictures. And then they had another fellow named

19 Joey Rita who was referred to as Curly Joe, and he did the

20 motion pictures. And that was basically the Stooges, they

21 never had a chance to do major motion pictures, because

22 Harry Cohn didn't think they were in the same level with

23 Harpo. Chico and Groucho.

24 Q They were pretty funny guys.

25 A Oh, yeah.

2791

1 Q Very good. Okay. See now I learned something.

2 A And basically I don't know anything else except

3 for what yo'all have been saying. That's basically all. I

4 don't even know who's anchoring on the news anymore anyway.

5 Q Don't even think about it.

6 A Okay.

7 Q Thanks.

8 (Juror left the room)

9 (Juror No. 301 entered the room)

10 Q I just learned something I really didn't know

11 before, the complete history of the Three Stooges.

12 A Oh.

13 Q Why? You know about these, too?

14 A I know some of it, but not a whole lot.

15 Q Well, your colleague and next door neighbor --

16 I'm serious about it -- he knows them inside and out. It

17 was absolutely great.

18 But that's not what we were in here talking

19 about. What we are talking about is Flight 800.

20 A Okay.

21 Q TWA Flight 800. It went down a week ago about

22 and nobody knows why and nobody knows what happened. Since

23 nobody knows, the news media believed that they need to be

24 reporting something. What they are reporting on is

25 speculation.

2792

1 A Okay.

2 Q You wouldn't be a human inhabitant of this side

3 of the planet if you weren't exposed to some of it. That's

4 all there is to it. And I assume you have been?

5 A Yeah. A little bit on the subways, you know, you

6 see the headlines that are twice as big as my head.

7 Q Well, I don't know, have you read any of the

8 inside --

9 A No. I haven't looked at any of the articles and

10 any time it comes up on the TV we change the channel real

11 quick, or I put pillows over my ears.

12 Q I've got to tell you, it's speculation of the

13 worst type, and when the news media is without news they

14 report things which aren't the truth. What do you want me

15 to tell you? The unfortunate part is, I'm sure when it

16 comes to write the history of our times they will end up

17 with all of this speculation and think it's true. It's not.

18 Anyway, as a juror you can't deal in speculation.

19 Do you have any difficulty with that idea?

20 A No, none at all.

21 Q For God's sakes don't, and don't let this media

22 frenzy get you in any way swept up. Just ignore it. Okay?

23 A Okay.

24 Q Easy enough. Thank you.

25 A Okay.

2793

1 Q And check in with your next door neighbor --

2 A Just not during the trial.

3 Q Huh?

4 A Just not during the trial.

5 Q Not during the trial. Thanks.

6 A Okay.

7 (Juror left the room)

8 (Juror No. 284 entered the room)

9 Q How you doing, friend?

10 A Okay.

11 Q You knew we were eventually going to get to you.

12 A Yeah.

13 Q Flight 800 TWA crashed about a week ago out in

14 East Moriches. Nobody knows why yet. There has been

15 intense speculation, since the news media doesn't have

16 anything to report and yet they have an event they have to

17 report, they've engaged in all kinds of intense speculation.

18 We would be fools to think that you haven't been

19 exposed to it. I'm sure you have been. You ride the

20 subway?

21 A Yes.

22 Q You see the newspapers, the headlines. They're

23 blaring, right?

24 A Yes.

25 Q I just wondered how much you had been, and if you

2794

1 had run across any of the really far-out speculation?

2 A No, I've, I've stayed away, like I you said from

3 media from any kind of publications. I very rarely watch

4 television anyway, so anything I hear is just passing by my

5 ear or whatever while I'm sitting on the subway. Sitting on

6 the subway you'll hear people mention something, but I very

7 rarely hear anything that I don't get involved in.

8 Q The one thing that I got I've got to tell each

9 one of you, and I have been, your job is to decide the facts

10 based on the evidence, not the speculation, and do you have

11 any difficulty with that idea?

12 A No.

13 Q Go in peace, friend.

14 A Okay.

15 (Juror left the room)

16 (Continued on next page)

17

18

19

20

21

22

23

24

25

2795

1 (In open court; jury present)

2 DAVID SWARTZENDRUBER, resumed.

3 THE COURT: Mr. Yousef.

4 CROSS-EXAMINATION continued

5 BY DEFENDANT YOUSEF:

6 Q Good morning, sir.

7 A Good morning.

8 Q Sir, you testified yesterday about a sound file.

9 Do you recall that?

10 A Yes.

11 Q How would the person be able to store a sound

12 file to the computer, or how can you store any sounds into

13 the computer, sir?

14 A How do you store it?

15 Q Can you explain how this can happen, how a person

16 can store his voice in the computer?

17 A You save it as a file in the computer.

18 Q What do you need to do that, sir?

19 A You need a hard drive to store the information.

20 You mean to play it, to actually activate it, or to store

21 it?

22 Q Any devices which you need to store your voice

23 into the computer.

24 A To actually do the recording you would have to

25 have some form of microphone. To do the recording you would

2796

1 have to have some type of driver to pick the audio up and

2 place it into the computer, and then you would need a

3 storage device to save it on the computer, be it your hard

4 disk or some type of removable media.

5 Q Can you use a microphone or is there a special

6 type of microphone you can use?

7 A I imagine there are several types of microphones

8 you can use.

9 Q Can you use a normal microphone like the one in

10 front of you, or are there special types of microphones

11 designed for special use with computers?

12 A I am sure there is a whole variety of types.

13 THE COURT: No. The question is, this kind of a

14 microphone here is fine for pushing the loudspeakers. Is

15 that sufficient to work the computer or to record on the

16 computer? Or do you need a special one which would somehow

17 digitalize -- how do you like that word?

18 THE WITNESS: As far as the microphone itself

19 goes, there is nothing within the microphone that I am aware

20 of that would cause it to be that unique to the computer. I

21 am afraid you are going beyond the scope of my knowledge

22 about microphones and computers. It is a standard

23 microphone that you can use. Some computers have built-in

24 microphones.

25 Q Can you use any normal microphone and just hook

2797

1 it up to the computer and then you can record sounds there?

2 A I don't know why you couldn't. There is a

3 variety of computers and there is a variety of input devices

4 to various computers, and I am sure there is standard

5 microphones that you can plug into these with the proper

6 equipment, the proper input plugs.

7 Q Sir, you just said that there are some computers

8 which have built-in microphones.

9 A There are.

10 DEFENDANT YOUSEF: Your Honor, may I ask the

11 witness to be shown what has been marked as Government's

12 Exhibit 301, 301A?

13 THE COURT: Sure.

14 A I would like to qualify that. The one I am

15 thinking of off the top of my head is, there is a monitor

16 that has a built-in microphone, in a Compaq Presario. It is

17 in the monitor itself but it plugs into the computer.

18 THE COURT: When you say monitor, you are talking

19 about the thing that looks like a TV screen?

20 THE WITNESS: That is correct, your Honor.

21 THE COURT: The clerk has just handed you Exhibit

22 301. You have seen that before, have you, or that type of

23 device before?

24 THE WITNESS: I have seen this type before.

25 THE COURT: Have you seen that particular one

2798

1 before?

2 THE WITNESS: No, your Honor, I have not.

3 THE COURT: Do you want to open it up.

4 Go ahead and ask your questions.

5 Q The computer which is in front of you,

6 Government's Exhibit 301, do you know if it has a built-in

7 microphone or not?

8 A I do not know.

9 Q Is there any way to test it now to know whether

10 there is a built-in microphone or not, by looking from the

11 outside or --

12 A I can't tell if there is or not. I don't know.

13 Q Is there any way to ascertain that?

14 A If you give me the data sheets I can tell you

15 whether or not it does. Just by looking at it, I don't

16 know. They are pretty clever when they make these devices

17 sometimes.

18 I am not really familiar with this. I am not

19 sure what this port here is on the side. I don't know if a

20 microphone will plug in here or not.

21 Q The sound file which you testified about

22 yesterday, do you know what type of sound device was used in

23 order to record it into this computer?

24 A No, I don't.

25 Q Is there any way for you to ascertain that?

2799

1 A No, because maybe it wasn't made on that

2 computer. I don't know. I have no idea.

3 Q Is it possible for a person to play a tape in

4 front of the computer, in front of the microphone, and

5 record the conversation which is being played on the tape,

6 store that into the computer?

7 A If the computer has a microphone capable of

8 storing audio and you play a tape recorder in front of it

9 can it store it?

10 Q Yes, sir.

11 A I am sure that is possible.

12 Q Do you know, is there any way for you to know

13 whether the recording which was stored in the computer was

14 done by the means of using a tape recorder which was in

15 front of the computer, or it was actually two persons

16 talking in front of the computer?

17 A I wouldn't know.

18 Q Now, sir, after you store or record a voice into

19 the computer, do you know if there are any softwares which

20 enable you to change the tune of the voice which is stored,

21 the tone of the voice?

22 A There is software that is available that can do

23 that.

24 Q Do you know the voices which were stored in this

25 computer, the sound file which you testified about

2800

1 yesterday, do you know if the voice which was stored in that

2 sound file was modified in any way using some softwares or

3 not?

4 A I wouldn't know that.

5 DEFENDANT YOUSEF: Your Honor, may I ask the

6 witness to switch on the computer and to demonstrate --

7 THE COURT: Switch on the big computer that

8 everybody can see, right? Yes, OK, not the little one.

9 Mr. Yousef, turn around and make sure that thing

10 behind you is on, too. I don't know, maybe you better not.

11 Let the government put that on. Are the ones on the desks

12 working?

13 Q Now, sir, according to what you first see on the

14 screen, can you tell if there is a built-in microphone on

15 that computer or not?

16 A No. That just tells me that a portable sound

17 device is not attached to the parallel port.

18 Q Sir, can you go to any Microsoft text files which

19 are stored in the Windows program?

20 A Microsoft text files?

21 Q Yes, sir, any text file that is stored in Windows

22 program.

23 A You want me to pull up any text file in the

24 Windows subdirectory?

25 Q Yes, sir.

2801

1 THE COURT: Do you want a specific one?

2 DEFENDANT YOUSEF: Any one.

3 THE COURT: All right.

4 Q Do you have any text files which has

5 demonstration of how to use specific programs? Any text

6 files?

7 A I would probably imagine SETUP.TXT might. Do you

8 want me to open that one?

9 Q Yes, sir.

10 Sir, can you read the functions which are shown,

11 the commands which are shown at the very top of the screen?

12 A You want me to read --

13 Q The very first line.

14 A At the very top?

15 Q Yes, sir.

16 A It says file, edit, find, character, paragraph,

17 document, and help.

18 Q Sir, can you open any other text file which was

19 stored by the user of the computer?

20 A Open another text file?

21 Q Yes, any normal text file that is stored by the

22 user.

23 A I can try.

24 Q Sir, is there any function in the computer which

25 enables you to make the computer read what is written in any

2802

1 text file through speakers?

2 A On the drive, the mirror image drive, there is

3 some software that indicated that that could be done. I

4 didn't ever use it.

5 Looks like this Win Reader might be able to do

6 something like that.

7 Q Will you go to that, please.

8 Now, sir, would you show us how the computer

9 would be able to read any written text files through

10 speakers.

11 A This is not my software. The software that is on

12 here, I am just going to have to kind of step through this

13 and give it my best effort, to try and understand the

14 workings of this. I did not configure this. I would

15 imagine this is how you would do it. You would open it, you

16 would find a text file, and then what you would do is, you

17 would hit OK and then -- that explains it right here. There

18 is no highlighted text to read, use a mouse. So what you

19 would apparently do is highlight the text and then activate

20 read.

21 Q Can you make the computer to read what is written

22 there?

23 A No, I can't, because you see an error message

24 comes out. It says wave out open error. It is version 4.3,

25 Speech Engine. It won't work.

2803

1 Q Do you know the reason it doesn't work?

2 A I am not familiar with the software.

3 Q Sir, generally does computers have the facility

4 of reading text files?

5 A Generally, in my experience?

6 Q Are there any softwares which enables you or the

7 computer to read any text files?

8 A Such software exists, yes.

9 Q On what voice does the computer read what is

10 written there?

11 A I think that would be application-dependent on

12 what software you are using. The ones that I am familiar

13 with that I have heard is obviously digitized speech. It

14 doesn't sound very human-like.

15 Q Will you explain how the computer does that, how

16 the computer read the file.

17 A With what program?

18 Q Supposing the one that you just highlighted now,

19 and if there was no error, what would happen after that?

20 A My best guess is that it probably would have

21 tried to read what is on the -- was highlighted.

22 Q How would it read that, sir?

23 A It would come out in audio tones.

24 Q Sir, you have testified yesterday about the

25 digital clock of the computer. Do you recall that?

2804

1 A About the what?

2 Q Digital clock of the computer.

3 THE COURT: Clock.

4 A Yes.

5 Q Would you show us how to change the date on the

6 computer that is in front of you now. Would you set it now,

7 for example, to September 11 of 1994.

8 A You can do it through Windows or you can go to

9 DOS and run a time command. You want to change it to

10 September 11?

11 Q 1994.

12 A 1994.

13 Q Now would you create a short text file in text

14 directory and store anything in it, just a simple letter A

15 or anything else.

16 A There is a file I just created, TEXT.TXT, and if

17 you --

18 Q Would you store any text in that file.

19 A I did.

20 Q Now would you change back the date to the normal

21 date.

22 Now, if you list the directory of the files which

23 are stored in the computer, what date does the computer show

24 you on which the file that you just created now, what is the

25 date assigned to this file?

2805

1 A The TEXT.TXT file is 9/11/94.

2 Q And this is the file that you just created now?

3 A That is correct.

4 Q Is there anything in the operating system, in the

5 computer that indicates that this date is inaccurate?

6 A Not that I am aware of.

7 Q Is there anything in the computer which indicates

8 if any of the files which are stored in the computer, their

9 dates are inaccurate or not?

10 A Not that I am aware of.

11 Q Sir, is there anything in the computer, in the

12 operating system of the computer that would tell you any

13 file's date or the date which is stamped to any file is

14 accurate or not?

15 A You mean accurate to the time that the file was

16 created?

17 Q Yes, sir.

18 A Not that I am aware of.

19 Q Sir, you have testified yesterday about temporary

20 files. Do you recall that?

21 A I do.

22 Q Was it your testimony that by looking at the

23 temporary file you can tell the type of the original file

24 which was created?

25 A The time?

2806

1 Q The type.

2 A The type?

3 Q Yes, sir.

4 A Yes, you can get remnants of the original

5 document in a temporary file.

6 Q Now would you tell us, please, the different

7 reasons for which a computer would create a temporary file.

8 A The standard reason is that when you get into an

9 application like Write, a desktop application, it creates a

10 temporary file when you open it up, and the reason is so you

11 can undo an edit.

12 Q Can you tell us the number of reasons a computer

13 would create the temporary files?

14 A There is a whole variety of reasons, and some of

15 those again are application-dependent. It depends upon what

16 application you are running.

17 Q Do you know approximately the number of the

18 reasons, sir?

19 A I know that there is a lot of reasons why. The

20 standard reason that I know of is that Write will

21 automatically open up a temporary file when you open up a

22 Write document.

23 Q Would you give us any other reasons other than

24 the reason that you just mentioned now, reasons which you

25 are aware of?

2807

1 A When you do a save, it will create another. When

2 you append, it will create another temporary file.

3 Q Is there any physical evidence in the computer to

4 show the reason why a specific temporary file was created?

5 A Could you explain that, why the temporary file

6 was created?

7 Q Yes, sir.

8 A The temporary files are created because you open

9 up the Write document, and that is a function that occurs

10 when you open up Write, and when you make a save and make an

11 append and save again, these documents will contain remnants

12 and sometimes entire copies, depending on the time you did

13 the save, of the document.

14 Q You just testified that there are many reasons

15 for which a temporary file could be created, am I correct,

16 sir?

17 A Yes.

18 Q Is there any physical evidence that would tell

19 you which specific reason caused this temporary file to be

20 created?

21 A Yes, and that is the one I just explained again.

22 When you have a Write document and you open Write, when you

23 first open the application it will create that temporary

24 file. Then what happens is, if you type something in and do

25 a save, you will see another temporary file. If you append

2808

1 and do a save you may see another one. And the reason for

2 it is you are editing and you are undoing.

3 THE COURT: No. After it is created, does the

4 computer show you what happened to cause the creation, in

5 other words, whether it was a save after an append or a save

6 after the power went off, or whatever?

7 THE WITNESS: No. What will happen is that you

8 will look at that document and you have to judge by, if you

9 see some of those boxes in there, usually that means an

10 append. If you were to save a document, you might save that

11 whole document into a temporary file. That would tell me if

12 I looked at that that that would indicate that that was a

13 fresh save of an entire document. If there were remnants of

14 it, that means that something was added and there was a save

15 where it was appended to a document. You may open up a

16 fresh document and make an append to it.

17 Q Could you determine with certainty why a

18 particular temporary file was created?

19 A Can I? No, not to a certainty.

20 Q Now, sir, you also testified about some erased

21 files which were recovered, am I correct, sir?

22 A Yes, there are erased files, there were erased

23 files in there.

24 Q Is there any way to prove that the recovered file

25 contains exactly what was in the original file?

2809

1 A There is a lot of variables. To prove that, you

2 would have to know the contents of the original.

3 Q Sir, is there any way to prove when the file was

4 deleted, to show when a file was deleted?

5 A To show when?

6 Q Yes, sir.

7 A I am not aware of any.

8 Q Now, sir, would you make -- the list of the

9 directory, the list of the files which is in front of you

10 now, can you tell on what basis the computer lists these

11 files in this order? Does it list them in alphabetic order

12 or according to their date of creation or any other reason?

13 A I would imagine this would probably be the date

14 that entry was made into the directories when the

15 application was run or copied into.

16 Q Is there any way to tell when each file was

17 loaded and saved into the computer?

18 A When was loaded and saved? On this basis,

19 probably not.

20 Q If you take a look at a specific file, any file

21 in this directory, is there any way to tell when this file

22 was saved into the computer?

23 A Yes. I just saved one, TEXT.TXT, and I can tell

24 you I saved that on 9/11/94.

25 Q For example, files which have date of -- does any

2810

1 of the files have dates in 1980's?

2 A Yes, PC Tools 1988.

3 Q Can you tell on what date this file was loaded

4 into the computer?

5 A No, I can't.

6 Q Sir, one of the files which you testified about

7 yesterday is a graphic file which is called WINCLIP.TIF. Do

8 you recall that?

9 A Yes, I do.

10 Q Is that the one on page 14 on Government's

11 Exhibit 355?

12 A I believe it is, yes.

13 Q Was it your testimony yesterday that this file

14 has a date stamped to it and the date is January 18, 1995?

15 A I would have to check and see. I believe --

16 THE COURT: Go ahead and check.

17 THE WITNESS: Thank you.

18 Do you recall the directory that that was in?

19 THE COURT: Let me see. Magic.

20 MR. SNELL: Your Honor, may I assist?

21 THE COURT: Yes.

22 MR. SNELL: Magic Files.

23 THE WITNESS: OK, I found it.

24 Q Will you tell us the date on this file, sir.

25 A Yes. January 18, 1995.

2811

1 Q Was it your testimony yesterday that this date

2 could have been stamped to this file because the file could

3 have been printed and then resaved on that date?

4 A I don't believe I testified that printing in

5 itself would do that, but resaving probably would, and that

6 would activate the clock.

7 Q So basically you don't know if it was printed or

8 not, am I correct, sir?

9 A I have no idea.

10 Q Why would you as a computer user resave a file --

11 withdrawn.

12 Under which circumstances you use the function or

13 the command resave, sir?

14 A I am not familiar with a resave command, but if I

15 used a save command and I already had something that I was

16 working on, possibly because I made an append to it, would

17 be a reason.

18 Q Do you know for what reason a person would use

19 the resave command?

20 MR. SNELL: Objection.

21 THE COURT: First of all, is there a resave

22 command?

23 THE WITNESS: Not that I am familiar with, your

24 Honor.

25 THE COURT: OK.

2812

1 Q Do you know what is the difference between save

2 command and resave command?

3 MR. SNELL: Objection.

4 THE COURT: He just said he is not familiar with

5 a resave command, so how could he tell the difference?

6 Q Sir, you have testified yesterday about the

7 floppy disk which was given to you and you used it to

8 decrypt some of the unintelligible files. Do you recall

9 that, sir?

10 A I do.

11 Q That floppy disk, the files or the programs on

12 that floppy disk were prepared by Phillipine government

13 personnel?

14 A That was my understanding, yes.

15 Q Can you make any change in the files on that

16 floppy disk to use it to encrypt some files to make them

17 unintelligible?

18 A I am not sure if you can or not.

19 Q Sir, do you recall yesterday when you testified

20 about a program which contained a chess game?

21 A Yes, I do.

22 Q And that there were some initials stored in that

23 chess game?

24 A Scores?

25 Q Initials stored.

2813

1 A Well, there were some alpha characters in there.

2 They could have been initials.

3 Q Can you go to that program or that file and

4 change these initials?

5 A I can try. Would you like me to?

6 Q Yes, please, sir.

7 A What I would probably have to do is try and save

8 the game right now, and then I will put something else in.

9 Q Sir, without saving it, do you know if there is

10 any way of changing the initials, without saving it?

11 A Without saving the game?

12 Q Yes, sir. Are you aware of any way of doing it

13 without saving the game?

14 A I could probably do it with the hex editor.

15 Q Now, sir, was it your testimony yesterday that

16 about approximately seven years ago you took a course in

17 DOS, Disk Operating Systems?

18 A Yes.

19 Q Do you recall what is the version of DOS which

20 you had in that course?

21 A I can't remember. It is quite sometime ago.

22 Q Do you know if it is the same -- withdrawn.

23 Is there an operating system of files or program

24 which is installed in this system in front of you?

25 A This computer has an operating system. It is a

2814

1 DOS operating system.

2 Q Do you know if this DOS version is the same

3 version which you studied during your course seven years

4 ago?

5 A No, it is not.

6 (Continued on next page)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2815

1 DEFENDANT YOUSEF: Your Honor, I have only two or

2 three questions. Can I have just a break now for lunch

3 hour?

4 THE COURT: Sure. All right, ladies and

5 gentlemen. We will take lunch now.

6 (Jury excused)

7 (Witness excused)

8 THE COURT: If the jury ever asks for the

9 exhibits, the exhibits have been changed. So that we have

10 two sets of exhibits. Somebody is going to have to come up

11 with what it looked like first time around and then what it

12 looks like after the changes. So just remember that, we

13 will need to put in both sets. I don't think anybody can

14 object to it, but let's recognize that it has to be done.

15 Assume Mr. Yousef has 15, 20 minutes left. How

16 much do you figure you have?

17 MS. BARRETT: I would say 30 or 40 minutes, your

18 Honor.

19 THE COURT: Fine. Do you think you can finish

20 with Mr. Swartzendruber this afternoon?

21 MR. GREENFIELD: I would hope so.

22 THE COURT: Good, OK.

23 (Luncheon recess)

24

25

2816

1 A F T E R N O O N S E S S I O N

2 2:00 p.m.

3 (In open court; jury present)

4 DAVID SWARTENZDRUBER, resumed.

5 CROSS-EXAMINATION(Continued)

6 DEFENDANT YOUSEF: Your Honor, may I ask the

7 computer to be switched on?

8 THE COURT: Sure if you would, please.

9 THE WITNESS: Sure.

10 THE COURT: Would you check and see that the

11 monitors are on, please.

12 BY DEFENDANT YOUSEF:

13 Q Sir, could you go to the previous file

14 WINCLIP.TIF?

15 A Okay. You want me to go pull it up to the

16 graphic? What do you want me to do with it, show it in the

17 DOS?

18 Q Just from the DOS directory. Now, sir, the date

19 which is shown to be stamped on this file, is it January 18,

20 1995?

21 A Yes, it appears to be January 18, 1995.

22 Q Now, is it possible that on this presumed date a

23 person has gained access to this file and then saved it?

24 A That could have happened, yes.

25 Q Now, as a computer user when do you need to use

2817

1 the save command?

2 A You generally use the save command when you want

3 to save the last data that you then put into the computer or

4 when you create a document, you want to save it.

5 Q Do you need to use the save command when you gain

6 access to a file and you don't change any of its contents?

7 A Do you need to use it?

8 Q Do you have to use it?

9 A You don't have to use any of the commands but I

10 don't think there is a requirement that you use the save

11 command.

12 Q If you don't change any of its contents do you

13 have to use the save command in order to save it?

14 A If you don't change any of the contents of the

15 document you pulled up in any given application I would

16 probably say that you would not have to use the save

17 command.

18 Q And do you have to use it if you changed the

19 contents of the file?

20 A I would think so.

21 Q Do you know if on this presumed date the contents

22 of this file were changed or not?

23 A I have no idea.

24 Q And if the contents were changed, do you know how

25 much of the contents were changed, the amount or the size of

2818

1 the file which was changed?

2 A I have no idea.

3 Q Is there any way to tell that, sir?

4 A Looking at this, there's no way I could tell.

5 MR. GREENFIELD: Your Honor, could we have the

6 actual file identified?

7 THE COURT: Yes, the question was TIF.

8 MR. GREENFIELD: That's just the ending I think

9 WINCLIP.TIF 1/18/96.

10 THE COURT: Sure.

11 DEFENDANT YOUSEF: I have no further questions,

12 your Honor.

13 THE COURT: Okay.

14 CROSS-EXAMINATION

15 BY MS. BARRETT:

16 Q Mr. Swartzendruber, the computer is not worth

17 anything without application programs, is that correct?

18 Let me rephrase. Can the computer by itself

19 without any programs installed in it, or generated from the

20 A drive, can you do anything?

21 A Yes, without an application program you can use

22 the operating system, you can get a date and time, you can

23 get into the general assembly line.

24 Q What about without the operating system?

25 A Without the operating system? No operating

2819

1 system in this, the computer wouldn't function.

2 Q So, is Windows considered an operating system?

3 A No, Windows 3.1 is called a graphic user

4 interface. It's the first line on top of DOS is an

5 operating system.

6 Q Would you consider that a program?

7 A Yes.

8 Q And there are other application programs like

9 word processing programs?

10 A There are word processing programs, yes, that are

11 application.

12 Q And you testified about Write. Is that a word

13 processing program?

14 A That's my definition I call Write. It's a

15 desktop application and included in the Windows package, and

16 it is like the mini-word processor program. That's the best

17 way I can describe it.

18 MR. KULCSAR: Your Honor, I can't hear the last.

19 Could he speak a little more closely into the microphone?

20 THE COURT: Sure.

21 MR. KULCSAR: Thank you.

22 Q Word Perfect that is also a word processing

23 program?

24 A Yes, Word Perfect is a word processing program.

25 Q And Windows, it helps programs like Word Perfect

2820

1 to work more effectively or differently for the user?

2 A I'm sorry, I don't understand.

3 Q Well, prior to Windows there was Word Perfect; is

4 that correct, there was just the Word Perfect program?

5 A Prior to Windows?

6 Q Prior to --

7 A There was DOS-based applications. You're talking

8 Windows applications and DOS-based applications. There is a

9 DOS-based Word Perfect and there is the Windows application

10 also for Word Perfect, or it is that there is a Windows Word

11 Perfect.

12 Q And Windows application, if used as a Word

13 Perfect program has different capabilities?

14 A Yes.

15 Q And there are other programs like you testified

16 to the, Games programs, for example?

17 A There are Games within Windows, yes.

18 Q And there are other programs, like graphic

19 programs?

20 A The graphic programs package for this particular

21 application is Paint. It's a Paint program where you can

22 bring up the BMP files.

23 Q And the Paint programs these are like drawing

24 programs?

25 A You can draw with it, yes.

2821

1 Q And they are also considered art work programs?

2 A I'm sorry, art work programs?

3 Q Well, you can use these programs to do certain

4 kind of art work?

5 A Sure, you can create something.

6 Q And in the use of these graphic programs some of

7 these capabilities are editing images that are in the

8 computer creating and editing images?

9 A You can create and edit images, yes.

10 Q That you can do with these graphic programs?

11 A Yes.

12 Q Paint programs. Are graphic programs the same as

13 Paint programs?

14 A Well, you can bring graphic files up in the Paint

15 function up in Windows.

16 Q Drawing programs, would that be the same as Paint

17 programs?

18 A What you have is you can have viewers that view

19 the graphics and generally that's all they'll do is they'll

20 bring up the graphic images so you can look at them and then

21 there is programs applications we can actually modify the

22 graphics, and a program like Paint you can bring up the BMP

23 file, that's the file we talked about, and you can make

24 modifications to an existing file.

25 Q And you can also create programs, images using

2822

1 certain application programs?

2 A Yes.

3 Q Now, these art work programs, can I refer to them

4 as art work programs, graphic programs and paint programs?

5 A Sure.

6 Q These art work programs, many of them are to be

7 used by professionals in their work world; is that correct?

8 A I would think so, yes.

9 Q And you can use that to, for example, to put a

10 logo on a letterhead, for example?

11 A Yes.

12 Q And to make designs on documents?

13 A Yes.

14 Q And some of these art work programs are also used

15 for fun in making fun designs; is that correct?

16 A I would think so.

17 Q And through the use of some of these application

18 programs, these art work programs you can even create

19 fantastic images, things that are, for example, horses with

20 wings, you can do that in the computer with these programs

21 creating surrealistic images?

22 A I would think you can do that.

23 Q And some of these art work programs are used by

24 people very much in the same way that they use Games, for

25 fun, would you say that's correct?

2823

1 A It could be, yes.

2 Q Now, the chess game that we looked at today,

3 chess is a game that needs two players; is that correct?

4 A That is correct.

5 Q And the two sets of characters which appear to be

6 initials that could be an indication two players were using,

7 two players were playing that game because chess is a game

8 that basically needs two players?

9 A That is correct.

10 Q Is there any knowledge that you -- is there any

11 way that you can determine when that game was played by

12 looking at the file, the game, is there any way that you can

13 determine the last time the game was played?

14 A I would have to experiment with it, but I would

15 imagine the last time that the game was saved would probably

16 be indicated on the, there's a file, a SAVE file in the

17 chess which is probably is updated when you put the new

18 information in.

19 Q Now, let's go back to the art work programs. I

20 believe you talked about bitmap images?

21 A Yes.

22 Q And bitmap basically refers to the way that an

23 image is saved in the computer; is that correct?

24 A That is correct.

25 Q And these images, they are made up of collection

2824

1 of dots; is that correct?

2 A That is correct, horizontal and vertical pixels,

3 yes.

4 Q And you can edit an image through one of these

5 art work programs by just manipulating the dots; is that

6 correct?

7 A Well, what happens is, I don't think, the end

8 result is that the dots do change, but I don't think people

9 pick individual pixels and change them. It's the result of

10 whatever you do, you change something, if you move a line

11 across the pixels will change.

12 Q Well, in an art work program there is capability

13 of editing, modifying or changing an image, isn't that a

14 fact?

15 A I would think so.

16 Q Do you think so, or is that a fact?

17 A Well, when you say that, it's a pretty wide

18 brush. You're talking about several different packages,

19 many I'm in the familiar with. I'm familiar with some of

20 the packages. When you say artware, I'm sorry, art programs

21 can you be specific as to what program?

22 Q Yes, with respect to some of the programs that

23 you yourself are familiar with, are there application art

24 work programs through which you can have an image in the

25 computer and then change it, modify it in some way?

2825

1 A Yes, ma'am.

2 Q And this bitmap images as you just stated, these

3 images are basically a collection of dots?

4 A Yes.

5 Q For example, a circle, if a circle is put into

6 the computer as, in a bitmap image form that circle, is

7 basically a collection of dots going around and around; is

8 that correct?

9 A Yes, I believe so.

10 Q And if I want to I can go into the computer,

11 using one of those art work programs, and change that circle

12 into a square by just moving around the dots, isn't that a

13 fact?

14 A Yes, you probably could.

15 Q Are you familiar with PHOTOMAGIC Paint program?

16 A Not really. I have not used the product very

17 much.

18 Q Those pictures that you viewed in the computer

19 yesterday, do you know through what programs they were

20 created?

21 A No.

22 Q Can they be created by the Paint program that's

23 in the Windows program?

24 A Which one of the pictures? The photographs?

25 Q Yes.

2826

1 A I believe you can bring those in, the photographs

2 into Paint. You don't create them in Paint. What you do is

3 you take an existing, if it's a photo, bring in that

4 existing file in the Paint, and then have to change the

5 extension. The problem with a bitmap it will be brought in

6 whatever file was brought in at.

7 Q Do you have capability with the computer as it

8 exists right now to create that image or to copy from one

9 file to another and make a new file? Can you do that right

10 now the way this computer is set up?

11 A To create what kind of image? You want me to do

12 a drawing?

13 Q The computer the way it is set up right now does

14 if have the capability of copying something, an image one of

15 these existing images and make it into a new file?

16 A You can, I would think you probably could. You

17 could bring it into any one of the several packages on here,

18 and probably make some sort of modification to it.

19 Q Before we do that, what's the difference between

20 high resolution and low resolution?

21 A In reference to what?

22 Q An image on the computer, the way it's displayed

23 on the computer, for example?

24 A Well, a higher resolution you'd have more pixels.

25 Q Excuse me?

2827

1 A You'd have more, there's more, there's more of

2 the pixels are closer together. And the more resolution the

3 further apart, so it becomes fuzzier. It's like looking at

4 a newspaper. You get real close you see the dots and if you

5 pull it away it gets clear. The closer those lines are

6 together --

7 Q So is it a fair statement that the higher the

8 resolution the sharper and more perfect the image?

9 A Yes, I would think so.

10 Q And the lower the resolution, the fuzzier the

11 image?

12 A Generally that would be correct, yes.

13 Q And is it also fair to say that the lower the

14 resolution, for example -- withdrawn.

15 In viewing a bitmap image which we just stated is

16 a collection of dots; is that correct?

17 A It's horizontal and vertical lines that intersect

18 and these little pixels are different colors. Yes, you can

19 call them dots.

20 Q If the resolution is very low, is it fair to say

21 that you can zoom in and see the dots more clearly, the

22 higher the resolution the less likely that you can separate

23 the dots in looking at them?

24 A Well, it would be difficult for you to try, I

25 think, even on low resolution to see all the dots.

2828

1 Q Can you repeat that?

2 A I would think it would be difficult to see it in

3 low resolution, too, but I think you're correct that there

4 would be a sharper image with the higher resolution, yes.

5 Q With the low resolution, if you get resolution as

6 low as possible, is it fair to say that there is a chance --

7 well, when you view the photos, the images that you

8 basically can see evidence of the dots that make up the

9 image?

10 A You probably could, yes.

11 Q And if you're going to edit an image, would it be

12 more advantageous to get the picture to as low a resolution

13 as possible in the computer, and then to work with it

14 because then you can see the dots more clearly? Is that a

15 fair statement?

16 A That would make sense to me.

17 Q Now, can you see if you can by using an

18 application program, see if you can copy one of the files

19 and I'll tell you what file you can copy.

20 A Do you know which application you want me to

21 bring it up in? You want me to use Paint Brush? If you're

22 familiar with PHOTOMAGIC, you can. If not, then I suppose

23 you can use Paint Brush. I'm not familiar with PHOTOMAGIC,

24 I'll bring it up if you like, MAGIC.

25 Q Now, I believe these files would be in the MAGIC

2829

1 file to start with. XAKI.TIF. Can you bring that up?

2 A Yes.

3 Q I'd like to also bring it up but leave space.

4 I'd like to you leave that on the screen, but also bring up

5 XACHAK.TIF?

6 A Bring up both? I don't know if I can do that.

7 Q Can you do it in such a way that both are

8 displayed on the screen?

9 A I have no idea. I would have no idea how to do

10 that.

11 Q Okay. Well, without doing that I'd like to bring

12 up XMATHAK.TIF.

13 A XMA?

14 Q XMATHAK.TIF.

15 A Is that in the Windows reference? I have an

16 XMA -- no H.

17 Q XMATHAK.TIF.

18 A I don't see it here.

19 MS. BARRETT: Your Honor, may I show the witness

20 two documents?

21 THE COURT: Yes.

22 A I don't know why it's not coming up if it's in

23 here.

24 Q Mr. Swartzendruber, why don't you try XMALHAK?

25 A All right.

2830

1 Q Could you make it larger?

2 A Yes.

3 Q Now, in your opinion -- just leave that on a

4 second. I'm going to show you two documents. In viewing

5 the document that has the blue background, is that the same

6 folder that you previously brought up on the display on the

7 photo that you previously brought up on the display on the

8 computer, the first one, not this one?

9 A Yes, it appears to be the same.

10 Q And is that one, the gray background, do you

11 believe, is it your opinion, am I correct in stating that

12 it's the same photo?

13 A Well, one appears to be a black and white photo.

14 The other appears to be a color.

15 Q In looking at the one that's black and white does

16 it appear to have a lower resolution in that it's less

17 fuzzy -- I mean it's more fuzzy than the blue background

18 photo?

19 A Actually the black and white one looks a little

20 clearer to me. The black and white one is more clear to me.

21 Q I'd like to have those back.

22 Does your computer, the way it's set up right

23 now, does it have the capability for you to bring this photo

24 to a lower resolution?

25 A I'm not sure. There's an image --

2831

1 Q Can you see if you can do that?

2 A There's a photograph sharpen and a smooth. I

3 would imagine that would have some effect if you smoothed

4 it.

5 Q Do you want to try?

6 A Do you want me to?

7 Q Yes, I'd like to be able to have the lower

8 resolution.

9 A I don't know if this will bring it to a lower

10 resolution or it's just having an effect on the pixels

11 because they are skewed out. There is a question of

12 resolution. I couldn't testify to that, but there it is.

13 Q Do you notice that, do you observe that in

14 looking at this photo before you changed it that you can

15 actually see the graininess and the dots in there?

16 MR. SNELL: Objection.

17 A The clearness.

18 THE COURT: I'll permit it.

19 A It's clearer.

20 Q When you say clearer, does it mean that the dots

21 that make up the image are clearer?

22 A The image itself. I wasn't pertaining to the

23 dots but the image itself is clearer.

24 Q Now, this image the way it is saved in the

25 computer this is saved, this image is made up of a

2832

1 collection of dots; is that correct?

2 A On the TIF files, I'm not sure if it is in the

3 TIF file I would imagine it would be, yes.

4 Q Is it a fact that a TIF file is a bitmap graphic?

5 A It could be. I'm not real familiar with the

6 files.

7 Q But if it's a bitmap graphic that is an image

8 that is made up of a collection of dots?

9 A If it was a bitmap, yes.

10 Q Now, could you go back to XAKI.TIF. Using the

11 art work program or using the capabilities of your computer

12 the way it is set up, I'd like to you make a copy of this

13 document.

14 A Make a copy?

15 Q Yes. Can you copy this and make and create a new

16 file and we can save it under a new name?

17 A Yes.

18 Q We can call it M1?

19 A M1?

20 Q Save it under M1, yes.

21 A It's now saved as M1.

22 Q Now, XAKI.TIF still exists; is that correct?

23 A That is correct.

24 Q And what is that document?

25 A This one?

2833

1 Q Yes?

2 A This is M1.TIF.

3 Q That was never in the computer before today; is

4 that correct?

5 A The image was we just made a copy. This file was

6 renamed and copied over so a duplicate was made.

7 Q And prior to creating this duplicate the, this

8 copy that is now saved other than -- prior to creating this,

9 this file did not exist?

10 A I'm sorry?

11 Q Prior to creating this file just now, this file

12 did not exist in the computer; is that correct?

13 A Not under this name.

14 Q But you still have XAKI.TIF?

15 A Yes, so it copied the file, and there is another

16 file with a different name. It's the same file, but it's a

17 duplicate and with a different name. So there are two files

18 now.

19 Q So there are two separate files?

20 A That is correct.

21 Q But they have images that look exactly the same?

22 A That is correct.

23 Q Now, did you figure out if you can edit this

24 through the art work program, can you make changes? Did you

25 find out if you can do that?

2834

1 A Well, there's Pencil here so I imagine --

2 Q If you are going to do this, may I ask you to

3 copy this document one more time and rename it M2, but leave

4 M1 in the computer.

5 Now, have you figured out whether or not you can

6 do something, you can change this document?

7 A I'm not sure if I can or not. I can try. That

8 might have done something.

9 Q Say that again?

10 A That might have done something. I drew a couple

11 of lines across the upper left side.

12 Q Did you do something to that document?

13 A Yes.

14 Q Can you create a square box? Can you draw, is

15 that a Paint program that you're in?

16 A Whoops.

17 Q This is great. That photo that just appeared

18 just now, how did that happen?

19 A It's a good question. I'm not real, I'm not

20 trying to be funny. I'm not real familiar with that program

21 at all, ma'am.

22 Q Okay.

23 A I'll try and draw a square box. There.

24 Q Can you draw a square -- do you know what

25 precooked art is?

2835

1 A Pardon me?

2 Q Do you know what precooked art in terms of

3 computers? Do you know what when I say "precooked art," do

4 you know what that means?

5 A Precooked?

6 Q Yes, precooked, like cooked. Precooked art?

7 A I don't know what it means, ma'am. Do you mean

8 if you can bring something like a clip art?

9 Q Right.

10 A Okay. Okay.

11 Q Give the direction of clip art, for example?

12 A I don't know. I would have to guess. I don't

13 know if these are in here or not. There is no program in

14 there.

15 Q This Paint Brush program you're looking at is

16 there a template directory with any graphic images?

17 A No. There it is. It's MAGIC. What I can do is,

18 let me see, if we'll pull up anything they have in there.

19 This is what they've got. Here's a logo dot TIF. I think

20 that's an entire file though. This is everything -- well,

21 Q Let's try something else. Let's pull up XTATE4

22 dot TIF.

23 A Okay, open it.

24 Q Could you make it a little smaller?

25 A Smaller?

2836

1 Q Yes, just a little smaller. Could you now copy

2 it and take it to M2.

3 A See if I can figure how to do that.

4 Q Could you put it next to it, not on the photo

5 itself.

6 A I can try. You can barely see. I think it will

7 have to reside in the photo.

8 Q Can you cut and paste it by using the Windows

9 program?

10 A There it is cut and pasted.

11 Q I'd like it to be on the same page as --

12 A What's going to happen is I can try and bring

13 that in, but what was the --

14 Q M2.

15 A I don't think, I don't know if this is going to

16 import that file. That was X, this one X.

17 Q You're talking about the image?

18 A Which one did you want me to bring up?

19 Q M2?

20 A I'm sorry, M2. It won't recognize it in here.

21 It's right below it.

22 Q It seems to be on the picture itself?

23 A I'm just not real familiar with this program.

24 Q That second picture that you just put there, how

25 did you do that?

2837

1 A I clicked the little magnifying glass in the

2 upper right side trying to move this and that appeared. I'm

3 just not sure. There, I redid it again.

4 Q I know it's very, very light, but is it, am I

5 correct in saying that that photo that you just copied, is

6 it on top of that picture?

7 A Yes,Let me close this, and I'll reopen M2 again

8 and see if I can do it again.

9 Q Are you limited because of the kind of program

10 that you're using?

11 A I'm not at all familiar with the program. I'm

12 just trying to make my best guess as I go along here. And

13 the other one you wanted in here was which one?

14 Q I understand that you're not familiar with the

15 program, but am I correct in saying that there are programs

16 that, there are different kind of application art work

17 programs?

18 A Oh, definitely, yes.

19 Q And there are programs where you could have, if

20 you were familiar with it, you could have placed that

21 picture on top of the M2 picture that we just created today

22 in court?

23 A Yes.

24 Q And if you were able to and you were familiar

25 with that program, am I correct in saying that we could say

2838

1 I wanted to replace, let's get it back, M2 for a second.

2 If I had asked you to make that image small, the

3 round image that we just saw, if you are familiar with the

4 program and you know how to operate it, I could ask you to,

5 and you would be able to place that round circle over say

6 the other eye that is not covered of that photo. Could you

7 do that?

8 A If the program allows you to do it, you certainly

9 could.

10 Q There are application programs that allow you to

11 take that image that we were just trying to place next to M2

12 just now and could allow you to make that image smaller and

13 put it over the uncovered eye of that image; is that

14 correct?

15 A There probably is. I don't know if this

16 application did this one, but it should, somehow it happened

17 so I would assume that there is an application would allow

18 you to do that.

19 Q There are application programs that allow to you

20 do that?

21 A I would think so.

22 Q Now, let's try something else. I'd like you to

23 bring up, I think it may be, I'm not sure what program it is

24 located in, but the file name is ID2.BMP. Can you retrieve

25 that file?

2839

1 Now, there are two boxes there. Let's copy the

2 bottom box and resave it and call it M3?

3 A Save this as M3?

4 Q The bottom box. There are two boxes, the lower

5 box, and we'll save it as M3, the one that doesn't have a

6 heading, a caption and that black --

7 A You want me to cut that out, I take it?

8 Q Cut it out and make a new file and call it M3.

9 A I don't know if I did it. No, I didn't do it.

10 This might. I'm sorry. Wait.

11 Q Okay. Now, I think we just tried that, and I'm

12 not sure if you are going to be able do this, but is there a

13 way that we can make a copy of M2, the photo image that we

14 just left, and place it in the upper right-hand corner of

15 M3? First of all, if you're familiar with an application

16 program -- first, are there application programs with such

17 capabilities? That's the first thing.

18 A I'm sorry?

19 Q Are there application programs that give you the

20 capability of copying M2, making it smaller, and then paste

21 it in the right-hand corner, meaning that placed in the

22 right-hand corner of this M3?

23 A I'm sure there are.

24 Q Can you do that? And if you can't, that's fine.

25 Take M3. Well, actually copy M2, make it a smaller photo

2840

1 and then paste it or place it in the right-hand corner of

2 M3?

3 A Did we rename the BMP file on 3?

4 Q The one that looks like an information card, M3.

5 A We didn't save it.

6 Q M3 is just the one bottom?

7 A No, you mean this M3. We didn't rename the other

8 one. Now what's going to happen if I cut this I'll lose

9 other one, but we can create M4.

10 Q You can create M4. What are you going to be

11 creating now, a new, the bottom box I'd like to you create

12 you going to make it M4 now.

13 A Whatever you want it.

14 Q M4 is fine.

15 A Should I save it as M4?

16 Q Yes. Can you now go back to M2 -- what I would

17 like to know if you can do, is if you can go to M2, make it

18 smaller and then copy it and take it to M4, paste it into

19 M4.

20 A I'm just not familiar with the program. I'm sure

21 this can be done.

22 Q That's fine. Basically it seems as though it's

23 behind the writing. Is that the way it appears?

24 A Behind the writing?

25 Q Yes. It's very blurred. Is there any way that

2841

1 you can make it sharper, making the resolution higher?

2 A I don't know, ma'am. I'm totally guessing at the

3 program.

4 Q Would you just make the photo a little smaller so

5 it appears like in the right-hand corner?

6 A I don't know how to do that.

7 Q Now, just leave it the way it is. Is this named

8 M4 or is this a new document now?

9 A It's M4 that we brought in another document and

10 you wanted to paste it on top, but it's still M4. We

11 haven't saved it yet. If we were to exit that, we'd want to

12 save that on top of M4.

13 Q If we save that now and call that M5 there would

14 be no more M4?

15 A There would still be an M4.

16 Q Can you save that to be an M5 then?

17 A Sure.

18 Q This is the one with the photo.

19 Now, can you read the writing on the form the way

20 it is?

21 A Can I read it?

22 Q Can you read it from the computer the way it is?

23 I know it's a bit fuzzy, but can you see it?

24 A Yes, ma'am.

25 Q What does the top say? Do you see where it

2842

1 indicates, date of birth?

2 A Yes, I can see that.

3 Q If you are able to, can you type something in

4 here right now?

5 A I'm sorry?

6 Q Can you put date of birth July 23, 1996?

7 A I'll try. I don't know if I can or not.

8 Q Can you type it in? What program are you

9 operating through, Mr. Swartzendruber?

10 A PHOTOMAGIC.

11 Q Okay. Does it have a typing capability like a

12 word processing capability where you can type something

13 there?

14 A It says available in the retail version only

15 here. I don't know if you can see that on your screen.

16 Q If you were familiar with that program and you

17 would have been able to with the word processing capability

18 type in, say, July 24, 1996, and date of birth, you could

19 type information there while the photo is still there?

20 A If you ask my opinion what happens is when you

21 start dealing with images --

22 Q No. I'm just asking you with respect to the ID

23 plate. Let's call this figure an ID plate, and this photo

24 that we tried to make smaller, but because you're not

25 familiar with the program were unable to.

2843

1 But am I correct in saying that it's possible

2 that you could have made the photo smaller and put it at the

3 right-hand corner if you were familiar with that program?

4 A Oh, I would think so.

5 Q This ID plate that we would be looking at where

6 it says date of birth there's a line that goes across that

7 follows; is that correct?

8 A Yes.

9 Q Again, if you were familiar with that program

10 would you have been able to type in a date of birth, a date,

11 like say today's date?

12 A Again, it's been my experience when you deal with

13 image, bitmap image graphics, and you deal with pixel

14 graphics -- I don't think it's a simple matter of typing in.

15 If you don't just type in and you don't cut the proper area

16 out what is going to happen is for every letter you may type

17 it may push over that line. I mean there are several things

18 that could happen, depending upon the mode that you're in.

19 Q You could delete the line and put the date of

20 birth along there?

21 A Yes.

22 Q Because the line exists --

23 A I'm sure you can, ma'am.

24 Q I was just at the point where you talked about

25 placing and typing it in?

2844

1 A It's not that easy in Images.

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

2845

1 Q But with respect to, say, WordPerfect features,

2 there are, there is a feature where when you type something

3 you press an underlining feature and when you type the

4 sentence an underline comes along with the words you are

5 typing, is that correct?

6 A I believe that can be done, yes.

7 Q So say if you are concerned about removing this

8 line, am I correct that you can put -- if you are using

9 something like a WordPerfect program, could you put the

10 WordPerfect program, using the keyboard, in a typeover mode

11 by pressing insert, typeover mode and type in July 24, 1996,

12 in that area, and the line would just disappear, depending

13 on the amount of space --

14 A Actually, I am not as familiar with the

15 WordPerfect as I am with Word. That is our competitor,

16 ma'am.

17 Q OK, but am I correct in saying that you could

18 actually enter typewritten information next to where it says

19 date of birth?

20 A There is no question that you can enter

21 information in there that will indicate date of birth. It

22 is not a simple matter of typing it into --

23 Q I am not asking if it is simple, I am just asking

24 if you can do it.

25 A Yes, it can be done.

2846

1 Q I am going to show you -- actually, why don't we

2 bring up XAMPLE.TIF, and I believe it corresponds to the --

3 A XAMPLE.TIF?

4 Q Yes, XAMPLE.TIF.

5 A OK.

6 Q Do you remember bringing up the logo that appears

7 in this image just now?

8 A Yes, I do.

9 Q Do you remember that it was in a different file,

10 that it was file number -- I believe you brought it under

11 XDAT4.TIF.

12 A I believe I remember bringing it up, ma'am.

13 Q Somebody using a program that they are familiar

14 with, am I correct in saying that the logo -- I am not sure.

15 Do you recall saving the logo before, or no? Did you save

16 it on your file?

17 A I am not sure. It might be somewhere between M1

18 and M4.

19 Q Just call it logo. Am I correct in saying that

20 if you were familiar with the program you could have

21 created, without copying this document, you could have

22 created a document by taking M2, which is a large photo,

23 making it smaller, and going back to the logo, the logo

24 file, click that logo and put it in two places, one on the

25 image in the bottom and one in the right-hand corner? Am I

2847

1 correct in saying that you could have done that if you were

2 familiar with this program?

3 A Yes, that is possible.

4 Q And all this information that is there, the name,

5 the date of birth, you could have entered that same

6 information without copying that document if you were

7 familiar with the word processing capabilities of this

8 graphic program.

9 A I just have to talk in general because I am not

10 familiar with it, but I think it can be done. Yes, this can

11 be done with these types of applications, yes.

12 Q It can be done?

13 A Yes.

14 Q I am going to give you a document. Look at page

15 11 of the computer exhibit book. Do you have it?

16 A Would that be 355?

17 Q That is the same thing that is up there. Just in

18 case.

19 A OK, I have page 11.

20 Q I just asked, in case you weren't able to see

21 what is on the monitor. Could you read the top caption.

22 A Wanted dead or alive.

23 Q Is there a space between the word A and L-I-V-E?

24 A Yes.

25 Q So if it were to be read exactly, it would be

2848

1 read wanted dead or a live, the way it is written.

2 A OK, dead or a live yes.

3 Q And the reward, I don't know how many zeros that

4 is. There is an indication of a reward?

5 A Yes, there appears to be.

6 Q Am I correct in saying -- the date of birth,

7 1910, do you see that?

8 A Yes, I do.

9 Q Would it be a fair interpretation that the person

10 who created this document was having some fun here?

11 A Ma'am, I have no idea of the state of mind of the

12 person who created this document.

13 Q Just before we leave, in terms of editing, what

14 we were just trying to do, cutting and pasting from one

15 document to another -- that is what we were doing, is that

16 correct?

17 A Yes, ma'am.

18 Q There are other ways of editing images, and that

19 is by editing a document itself, if you understand a

20 program, if you are using a program that you understand, for

21 example, is that correct?

22 A To edit a document, or the image itself?

23 Q We just created documents by cutting and pasting

24 from existing files, existing documents.

25 A Yes, like an ID, if you called this an ID, yes.

2849

1 Q Let's go back to M2. I know, I believe you

2 stated that you weren't able to get this to a very low

3 resolution.

4 A I can try, ma'am. I am not familiar with the

5 program.

6 Q Say that again, sir.

7 A I am not familiar with the program. I can smooth

8 it out like we did before.

9 Q Can you try and see if you can get it to a very

10 low resolution, as close as possible without getting the

11 image off the computer.

12 Sir, is there a way that you can zoom in on the

13 image -- I believe you would have to have some kind of

14 application program to do that, but is there a way to zoom

15 in on the image to see the document very, very close?

16 A Like that?

17 Q Can you see the dots more clearly?

18 A Yes, I can see dots.

19 Q If I wanted to and you understood the program

20 that we are using and I wanted to -- is that the lip area?

21 A I think that is the eyes, ma'am.

22 Q If I wanted to create another patch over the --

23 or another patch over the uncovered eye, could I manipulate

24 the dots and -- no, withdrawn.

25 If I wanted to, say, make the eyebrows thicker,

2850

1 am I able by manipulating the dots that make up this image,

2 make the eyebrows, say, thicker or thinner? Can I do that?

3 A That is what these programs are designed for.

4 You should be able to do that, yes.

5 Q That patch that is over the eyes, that could have

6 been created after taking a photo that has no -- without the

7 person wearing a patch -- withdrawn.

8 Is it possible that the image scanned into the

9 computer could have been an image of a photo without the eye

10 patch?

11 A Is it possible? Yes.

12 Q And is it possible that the eye patch could have

13 been then created through the artwork program?

14 A Sure, yes.

15 Q So if I wanted to make two eye patches over these

16 eyes or make the eye patch clearer, I could do it through

17 the application program, the artwork program?

18 A I would think so, yes.

19 Q The scanning of the photograph, you can use any

20 photograph, and as long as you have a scanning program and a

21 scanning device, it can happen?

22 A If you had a scanner, you should be able to bring

23 in an image, yes.

24 Q So all these photographs that we brought up

25 between yesterday and today with all these different images,

2851

1 it would be a fair interpretation that it was only one photo

2 that was scanning to the computer and then several different

3 files were created and edited with the artwork programs.

4 A I have no idea, ma'am.

5 Q Did we just copy an existing file and make four

6 different files just now?

7 A That can be done but I also don't know if

8 somebody scanned in four images and just worked on those

9 four images. I have no idea.

10 Q But that would be a fair interpretation.

11 A I think that any assumption in that category

12 would be reasonable, whether you scanned in four images or

13 took one and made four copies. Yes, they can both -- yes.

14 Q You testified about decrypting certain

15 unintelligible files. This decryption process that took

16 place, did you do it or did Access Data do this process?

17 A The actual decryption was done by Access Data.

18 Q Was it your testimony that when the government

19 sent you the tape of the hard disk, that they also sent you

20 a floppy that contained a decryption program?

21 A Sometime later.

22 Q When did they send you the tape of the hard

23 drive?

24 A The original tape of the snap-back image was in

25 February of 1996.

2852

1 Q They subsequently sent you the decryption

2 program?

3 A The one that was from the Philippines, a copy of

4 the disk, yes, ma'am.

5 Q When did they send that to you?

6 A May have been March or April. I am not sure.

7 Q You were examining files when you had -- prior to

8 getting the decryption program you were examining files from

9 the hard disk?

10 A I examined files from the hard drive.

11 Q And I believe it was your testimony that during

12 the time your tape broke 30 or 40 times, I think you said,

13 and it had to be repaired?

14 A No, the tape didn't break -- the tape broke once,

15 and I restored the mirror image on the hard drive at least

16 30 or 40 times. Each time I used it I would restore it so I

17 had a pristine copy. It broke once and I fixed it. I asked

18 for a duplicate copy to insure the integrity.

19 Q What did you do 30 or 40 times?

20 A Restore the mirror image on the hard drive. I

21 don't have the original evidence. I have a mirror image

22 byte by byte, sector by sector, cluster by cluster. Each

23 time I get onto a hard drive I am going to make some

24 alterations on it by examining it generally. So the times

25 that I do, I can restore the image and the image will be the

2853

1 same one of the original one that was sent to me.

2 Q Prior to receiving the floppy disk with the

3 decryption program, did you observe the unintelligible

4 files?

5 A I did.

6 Q When did you send a copy of the hard drive to

7 Access Data?

8 A Originally what I sent to Access Data was a copy

9 of the files on a floppy disk, the ones that were encrypted,

10 and then I sent along a copy of the decryption utilities

11 that were made by, I believe Mr. Ray Canlas.

12 Q Was that done at the same time?

13 A I believe I did, yes, at the same time.

14 Q So am I correct in saying that you never

15 contacted or you never sent Access Data anything until after

16 you got the decryption program from the government?

17 A I believe that is correct, yes. I may have, may

18 have sent -- come to think of it, I may have sent -- there

19 is a short window and I may have sent the decryption

20 utilities maybe a week or so later. I am not sure. I think

21 I sent them at a very short window later. I didn't want to

22 send them at first, so I just sent the files, is my

23 recollection.

24 Q In any event, you testified that the files were

25 decrypted and you saw files in readable form, some files

2854

1 were decrypted, is that correct?

2 A Yes, I did, just the other day.

3 Q The first time that you saw decrypted files --

4 that means unintelligible files that are now turned into

5 readable files -- was it after you received the government's

6 PNP program? Did you use a program that was sent to the

7 government to decrypt these files?

8 A Did I use the program from Ray Canlas to decrypt

9 these files?

10 Q Yes.

11 A No, I didn't. I did not decrypt the files. I

12 know the limitations that I have when I work with the

13 computer, and if it is decrypted, what I would do is send

14 that out to a specialist.

15 Q So you didn't go through the decryption process

16 yourself?

17 A I tried the basic routines that were in the

18 computer, I tried those a couple times and I tried to search

19 some areas to find some passwords, but I maybe for an hour

20 worked on it and then I asked the --

21 Q And you weren't able to do that even after the

22 government sent to you their decryption program?

23 A I had no interest in doing that.

24 Q So you sent out the un -- copies of these files

25 and a copy of the decryption program to Access Data.

2855

1 A I did, yes.

2 Q Was it Access Data -- withdrawn.

3 The files that you testified to that you saw were

4 decrypted, when was the first time that you saw a decrypted

5 version of the encrypted files?

6 A That may have been in April. I believe I saw

7 AUSA, or Mr. Snell, I believe, showed me one of the

8 decrypted files on a printout.

9 Q When you said a printout, that is a readable

10 version?

11 A Yes.

12 Q Did Access Data send you back any readable

13 versions of any encrypted files?

14 A That is correct, they did. They sent me a copy.

15 They sent the original to the U.S. Attorney's Office in New

16 York and they sent me a copy.

17 Q Was that the original that Mr. Snell showed to

18 you? Was that the same information that Mr. Snell showed to

19 you, to your knowledge?

20 A No, that wasn't the -- I believe I saw something

21 off of the FBI decryption.

22 Q So you just stated that Access Data -- you

23 received the decrypted files after sending to Access Data

24 the decryption program from the PNP, from Ray Canlas, right?

25 It was sometime after that that you received from them a

2856

1 decrypted version of the files?

2 A Yes.

3 Q Are you personally familiar with the decryption

4 process?

5 A Very generally. Enough to know that I should

6 send that out to a specialist.

7 Q Am I correct in stating that the decryption

8 process is not an absolute certainty that everything is

9 correct?

10 A Specifically this one or decryption generally?

11 Q Just in general. I am talking about in general.

12 A I have seen decrypted files that are an image of

13 the original files.

14 Q Do you know enough about the decryption process

15 to know the following: Do you start by looking at the

16 encrypted document?

17 A I am sorry.

18 Q You start in this process, to your knowledge, do

19 you generally start by looking at the encrypted document?

20 A You can.

21 Q And then am I correct in saying that the person

22 that is doing the decrypting looks for patterns in this

23 encrypted document?

24 A That is one of the processes.

25 Q But you are not very familiar with the process

2857

1 and you don't perform it yourself?

2 A Very general. I know that you use brute force

3 sometimes and sometimes you force several passwords through

4 a hashing code. There is a code you force these passwords

5 against it to see if you can get plain text through ciphered

6 text. I am not real familiar with the decryption process.

7 I have taken a few classes and in this particular case I

8 sent it out to a specialist.

9 (Continued on next page)

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14

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16

17

18

19

20

21

22

23

24

25

2858

1 Q From your limited knowledge, are you aware that

2 it is not an absolute process, that there could be lots of

3 errors in it?

4 MR. SNELL: Objection.

5 THE COURT: I think we have gone through this.

6 We are going to take a break, ladies and

7 gentlemen.

8 (Jury excused)

9 (Witness temporarily excused)

10 THE COURT: It seems to me that -- maybe I am

11 wrong -- you want to get something out. I am not sure what

12 it is but I have a very strong feeling this is not the guy

13 to get it out through.

14 MS. BARRETT: I understand, your Honor.

15 THE COURT: So I don't know where you are going

16 with the rest of it, but think about that.

17 (Recess)

18 (Witness resumed)

19 (Jury present)

20 THE COURT: All right, Miss Barrett.

21 (Continued on next page)

22

23

24

25

2859

1 BY MS. BARRETT:

2 Q Mr. Swartzendruber, could you look at

3 Government's Exhibit 3533G. Can that be shown to the

4 witness? 3533G. Look at page 2.

5 A Yes.

6 Q Was it your testimony yesterday that from the

7 top -- is that the SHOWNTEL directory?

8 A Yes.

9 Q -- that the first four files, the top file that

10 is dated 1/7/95, was it your testimony yesterday that when

11 you looked into these files there were no text files and it

12 was empty?

13 A I believe I was looking for alphanumeric

14 characters -- I am sorry -- intelligible text characters,

15 and, as I recall, I don't think I could see anything in

16 there. There was a lot of ASCII characters and I looked

17 through the Hex Editor, but I didn't see anything

18 intelligible, as I can recall.

19 Q The date that corresponds to the file, 1/7/95, is

20 that an indication that that was the last time the document

21 was created or modified?

22 A That is what it would mean to me, yes, ma'am.

23 Q Going back to the artwork program for one second,

24 could you pull up on the computer M2 again.

25 A We are in M2, ma'am.

2860

1 Q The Magic --

2 A Yes, this is M2.TIF.

3 Q I am sorry. Could you make it a regular size

4 photo.

5 A Yes, ma'am.

6 Q A little bigger, yes.

7 Could you copy a part of that photo --

8 THE COURT: You know, I can't hear you and I know

9 if I can't hear you the court reporter can't hear you.

10 Q Would you copy, starting from about the top of

11 the, whatever, the blindfold, whatever you call that --

12 THE COURT: The eye patch?

13 Q -- the eye patch, starting from there and going

14 down to the top of the shoulders.

15 A From the top of the eye patch to the top of the

16 shoulders?

17 Q Here and here.

18 A See where the cursor is, ma'am? Right there?

19 Q Right.

20 A OK. Like that?

21 Q Yes. Can you copy that and save it as M6?

22 Could you adjust the background to make the face

23 go more to the right and the background more to the left

24 empty? Why don't we start again and maybe you can make a

25 new copy. Go back to 2 and then copy it --

2861

1 A You want to make another one now?

2 Q I am trying to make a different image, so go back

3 to M2.

4 Now, I would like for you to copy it starting

5 from here across, here, a little further in --

6 A Right there?

7 Q Yes, and just below his lips. Up a little

8 further. I just wanted to make the bottom --

9 A Do you want just the head?

10 Q I want just the head but I want to cut out this

11 side here.

12 A Do you see where the arrow is, do you see where

13 the cursor is on your screen? Do you want it to start

14 there?

15 Q Yes.

16 A And then you want it to go over here, here?

17 Q Yes.

18 A Then underneath the chin? Up right here.

19 A Up right here?

20 Q Yes, all the way across.

21 A So we cut this part of the head right here?

22 Q But I would also like the background to be

23 included in the photo?

24 A I can't do that, ma'am, if you want to cut right

25 by the ear. I am sorry. I am completely lost. You want a

2862

1 little bit of the blue on the left side and you want it cut

2 right by the ear on the right side?

3 Q Right, I want all the blue on the left side.

4 A And right about here where the hairline is, you

5 want the cut there?

6 Q Yes.

7 A And on the bottom, right on the beard right

8 there?

9 Q Yes.

10 A OK. About right like that, would that be good,

11 ma'am?

12 Q That is fine.

13 Could you save that as M6?

14 A Yes, ma'am. We saved an M6, I believe, already.

15 Q Could you make that M7.

16 A M7.

17 Q Now would you view, would you pull up

18 WINCLIP.TIF. Is that it?

19 A That's it, ma'am. That is WINCLIP.TIF.

20 Q Could you view the directory to see the date and

21 time that would correspond to this document.

22 A To WINCLIP.TIF?

23 Q Yes.

24 A Here is WINCLIP.TIF. I have highlighted it in

25 blue and it is 7/24/96, 3:47:46.

2863

1 Q What file is that?

2 A 7/24/96, 3:47:46.

3 Q Is that M7 or WINCLIP.TIF?

4 A Didn't you ask me WINCLIP.TIF, ma'am?

5 Q Yes.

6 A Yes, that is WINCLIP.TIF.

7 Q When you copied the image just now and you saved

8 M7, did you replace WINCLIP.TIF that existed before?

9 A I don't believe so.

10 Q Is it possible?

11 A I don't know why this is created like this. We

12 have been through so many changes on this that I am a little

13 bit confused myself.

14 Q Look at page 14 of the computer exhibit book.

15 A Yes, ma'am.

16 Q Was that the same document that you pulled up

17 before when you were being cross-examined by Mr. Yousef?

18 A I have observed this document before, yes.

19 Q And I believe it was your testimony that the last

20 date and time, the date and time that was recorded is

21 1/18/95.

22 A I believe that is true. Yes.

23 Q I believe you also testified yesterday that if

24 this document was printed out on 1/18/95 and then saved,

25 that that would have been the date and time that would have

2864

1 been recorded on 1/18/95.

2 A Printing, to make this clear, I am not convinced

3 that --

4 Q Saving, after saving.

5 A Apparently I was misunderstood on that. The

6 saving, yes. I would believe that if you resave the

7 document the current time and day would appear.

8 Q Am I correct that documents are generally saved

9 after modification changes have taken place?

10 A Yes, they should be, yes.

11 Q Could it also be a fair interpretation that the

12 document shown on page 14 of the book was created very much

13 the same way as you just created M7 on January 18, 1995?

14 A Certainly possible, yes.

15 Q You testified about temporary files, and you know

16 it is a temporary file because of the extension TMP.

17 A Yes, ma'am.

18 Q Can I create a file and then save it with an

19 extension TMP?

20 A Yes, you can.

21 Q If I did that and you were viewing the file in

22 the directory, can you tell the difference between a

23 deliberately created temporary file and an automatically

24 created temporary file?

25 A By the directory extension and looking at the

2865

1 directory?

2 Q Yes.

3 A I don't know how you could tell the difference,

4 no.

5 Q And I believe it was your testimony that when you

6 look at a temporary file there is an assumption or --

7 withdrawn.

8 The existence of a temporary file infers that

9 there was a prior existing file that was created and the

10 temporary file was automatically created in the computer, am

11 I correct in saying that?

12 A Speaking specifically about the desktop

13 application Write, Write does create a temporary file upon

14 opening, and when you do some appends or saves, as you are

15 appending the document it will keep that temporary file in

16 the proper process. When you shut out the Write document

17 when you close out, in the best world it will cause that

18 temporary file to go away, if there is a temporary directory

19 and everything functions properly.

20 Q Would the temporary file that is automatically

21 created, would the temporary file have the same information

22 as the file that was actually created?

23 A Not all of it. It may have appendages to it,

24 pieces of it, and some may have all of it. If you did a

25 save it may have all of it before it closes -- I am sorry.

2866

1 Q Are you saying that some automatically created

2 temp file would have all the information and some would have

3 some of the information of the actually created file?

4 A As you add pieces and you take a document, you

5 bring that document forward into your Write application and

6 you append to it, make changes, what it does is it will

7 update that temporary file, and the reason for that is so if

8 you want to do an undo you will have the ability to do that,

9 and to edit.

10 Q So when you view a temporary file, there is an

11 automatic inference that there was a prior existing file

12 that was actually created, am I correct in saying that?

13 A Yes, in the Write application, yes.

14 Q So if I, again, if I deliberately create a file

15 with TMP extension, it is possible that you could look at

16 that file and believe that is a temporary file that was

17 automatically created, am I correct?

18 A Are you asking can you recreate a temporary file

19 and make it look like a temp file?

20 Q No. If I create a file, any file, and I

21 deliberately save it, the file extension is TMP, I put that

22 in the computer as the place that I am going to save it.

23 A Yes.

24 Q I believe it was your testimony just now that

25 that deliberately created a temporary file -- and I mean

2867

1 temporary in the sense that that is the name of it. You

2 can't tell the difference from that file, the way it is

3 written you can't tell the difference from that file, you

4 can't tell the difference between that file and an

5 automatically created temporary file that also has a TMP

6 extension.

7 A That is kind of a yes and no answer. If you are

8 asking if I look at a directory and I do a DIR, I put a

9 tilde, WRI, take a set of four alphanumeric characters, any

10 combination, put a dot TMP, yes, I can create that, but the

11 problem or no answer is, if you see here in Windows right

12 now, let's say I create it in Write, using the Write

13 application. What happens is that this -- see where names

14 INI is, you will see a series of lines. That means

15 associated. What happens with the Windows Write temporary

16 files, those will become unassociated. So if nobody has

17 taken the -- the best way I can do is show you, if you want

18 to see what a temporary --

19 Q Let's start with this again. Just one minute. I

20 just want to get something straight. I can create a file

21 and name the file with an extension TMP.

22 A That is correct.

23 Q And some files, not all files, am I correct, when

24 they are created there is an automatic temporary file that

25 is created but that does not always happen. Was that your

2868

1 testimony?

2 A No. I am going to say that a temporary file when

3 you use the Write application should always be created.

4 There should be a temporary file. The minute you open the

5 application a temporary file will be created, generally with

6 zero bytes in it, when you first open Write.

7 Q Was it also your testimony that the temporary

8 file should automatically delete itself and that that

9 happens sometimes?

10 A In the best world that is exactly what happens.

11 A temp file will disappear in the Write application, if you

12 exit the application properly.

13 Q And that happens sometimes?

14 A That it does go away?

15 Q Yes.

16 A Absolutely.

17 Q But sometimes it doesn't go away.

18 A Yes.

19 Q That is why when you look at these temp files

20 that doesn't go away, you know or you believe that this temp

21 file was automatically created when the user created an

22 original file.

23 A That would be the indication, yes.

24 Q Now my question to you is, bearing that in mind,

25 if I create a file, save it and let it appear as though it

2869

1 is a temporary file, would you know the difference?

2 A I would.

3 Q What is the difference?

4 A What happens, ma'am, I was trying to explain,

5 when you look in DOS and you run a directory listing, you

6 are going to see 8 letters, a dot, and a 3-letter extension,

7 in DOS 6.2. That is the file name. You are going to have

8 the tilde, the WRI, a combination of alphanumeric letters at

9 random given by the computer that we talked about, and TMP.

10 The two next to each other, I couldn't tell.

11 However, when you go in the file manager, what

12 happens is, see where we have these temporary files? I did

13 this to be able to read these. See these little lines and

14 the icons that I am ticking the arrow on right here? That

15 is called association. What I have done is -- we talked

16 about this before. I associated these documents with a

17 Write application. If I created these temporary files in

18 Write or something that Write would recognize, or I save

19 them, these lines would come up. That is not what happened

20 when I examined the computer. What I saw on these Write

21 temporary files, they were blank, which meant they weren't

22 associated with any document, which means that Write

23 certainly didn't create them.

24 To be perfectly honest, I don't know how to

25 dissociate.

2870

1 Q When you say that Write didn't create them, you

2 are saying they were not automatically created?

3 A The temporary files that I examined, the majority

4 had blanks in the icons. What you do is, I click on here.

5 I would go to associate, and it tells you that this is

6 associated with a Write document. If it is blank -- I will

7 show you exactly what happened on some of these. What

8 happens -- these are wave files. They won't play on this

9 machine, but if I was to click on this, it will come you up

10 with an error message. Look what happened, cannot run

11 program. No applications from this file. What it means is,

12 this document does not know what it is supposed to do. Is

13 it supposed to go to a word processing document? Is it

14 supposed to go to a sound file? You know and I know it is

15 supposed to go to a sound file. I would go into properties

16 and --

17 Q Mr. Swartzendruber, all I am trying to establish

18 is whether or not you can look at the directory when you see

19 the temporary files.

20 A Yes.

21 Q The files with the TMP extension, can you tell

22 the difference --

23 A In the directory, no, ma'am.

24 THE COURT: In the file manager, can you?

25 THE WITNESS: Yes, your Honor.

2871

1 THE COURT: OK.

2 THE WITNESS: Just to qualify that, your Honor,

3 it just tells me that wasn't created with the Write document

4 and saved.

5 Q It wasn't what?

6 A It wasn't created -- in the absence of having any

7 lines and that little icon and no association, it tells me

8 that it wasn't created with the Write document and saved,

9 the temporary file, for me to create one, but if I look in

10 the directory I can't tell.

11 Q You are saying if I create the temporary

12 extension, it cannot be done with the Write program?

13 A Yes, you can create a temporary file, WRI, a dot,

14 TMP, and you can save that. That can be saved.

15 Q And you can tell the difference between -- let's

16 assume that I created with a Write program.

17 A Yes, ma'am.

18 Q And let's assume that that was not -- that is one

19 of the automatically created files that was deleted.

20 A Yes, ma'am.

21 Q I think we have established that sometimes data

22 gets deleted and sometimes they don't.

23 A That is correct.

24 Q Let's assume that that file that I created and

25 named with a TMP extension, that backup, automatically

2872

1 created file was deleted and that file now exists. Am I

2 correct in saying that when you look at that file you can

3 tell the difference between that file and a regularly,

4 automatically created file?

5 A I can tell you the difference, that if you create

6 a temporary file in Write and save it and I go to file

7 manager, I can tell you that that was created in Write. It

8 has been my experience when I observe temporary files

9 created that there is no association and it is a blank page

10 icon. So right away what it tells me is, somebody tried to

11 do that and create a temporary file --

12 Q So you are saying --

13 MR. SNELL: Objection.

14 THE COURT: Yes, come on. Let him finish the

15 answer.

16 A If someone tried to create one with Write and

17 save it and it goes into file manager, it is going to have

18 the lines across it, and the red flag that goes up for me is

19 why are the lines across it, and that is because somebody

20 created a document in Write. In the absence of that, what

21 is supposed to happen, I open up a Write document,

22 automatically it opens up a temporary document. The

23 engineers designed it to do that. Then what happens is, if

24 it saves either by irregular shutoff or some memory glitch

25 or conflict with another program -- it could be a hundred

2873

1 other things -- it will come up as a blank directory, like

2 Frogman, you see the blank one on the screen. That is what

3 a temporary file should look like, when I look through file

4 manager at a Write-created document.

5 Q What if you don't use the Write program and I

6 create a file, a temporary file, with the TMP extension.

7 Can you tell the difference?

8 A Like Notepad? Do you want to create it in

9 Notepad? Well, I would say that if you created a file in

10 word and you saved it as a TMP, what is going to happen is

11 file manager should recognize it as Word. It should. If

12 you create a document in Notepad, what is going to happen

13 is --

14 Q Document in what?

15 A Notepad, which is another little accessory. It

16 should be on here. That is for the TXT extensions. Notepad

17 right here, text file. If you create it in Notepad, it

18 should recognize it as Notepad, a text file. You probably

19 see this once in a while. Inadvertently, whoever wrote the

20 files, when you see the dot TXT, they are actually Write

21 files. They are associated with Notepad and it pulls it up

22 as an ASCII file. But if you pull it up properly as it

23 should have been saved in Write, it will pull it up properly

24 with the Write format.

25 Q But the Write program -- not the Write program.

2874

1 A That is what I am saying. The Notepad, you can

2 do that and save it into Microsoft word, which is a

3 full-blown word processing program. If you did that, the

4 system should be smart enough to do the association for you.

5 There is other associations in here.

6 Q When you say the system should be smart enough,

7 are you saying that it is possible that it may not recognize

8 it?

9 A Sure, there is always that possibility, yes.

10 Q With respect to the hard drive that you received,

11 a copy of the hard drive, you stated that it was a mirror

12 image that was given to you. Was that your testimony?

13 A Yes. I did not receive a hard drive, I received

14 a 4 millimeter dot tape with a mirror image of a hard drive.

15 Q You didn't see the original hard drive?

16 A I had the contents of the original hard drive. I

17 had a mirror image -- I had a copy of a tape that was a

18 mirror imagine of a 203 mg hard drive.

19 Q My question to you, sir, you never saw the

20 original hard drive when you received this tape, am I

21 correct?

22 A No.

23 Q So when you say it is a mirror image, is that

24 because you were told that it was a mirror image?

25 A I am familiar with the company that manufactured

2875

1 the software that did the mirror image.

2 Q My question to you, is that because you were told

3 that it was a mirror image?

4 A I was told it was a mirror image and then I used

5 the snap-back software to reconstruct it, and it worked.

6 Q Assuming that the first copy of the hard drive

7 was made on January 23 of 1995, am I correct in stating that

8 you are not able to state with a reasonable degree of

9 scientific certainty that whatever was created and saved on

10 January 10, 11 and 12 or 18 -- withdrawn.

11 Assuming that the hard drive was made, a copy of

12 the hard drive was made on January 23, and assuming that

13 changes were made prior to the copy being made without you

14 not knowing, am I correct in saying that you would have to

15 conclude that that was not a mirror image of the hard disk?

16 MR. SNELL: Objection.

17 THE COURT: Sustained.

18 Q I believe it was your testimony that there is no

19 way that you can determine that the dates that are on --

20 that reflects to each file are authentic, is that correct?

21 A When I look at a directory listing can I tell if

22 those date and time stamps are the ones of the original

23 creation and modification?

24 Q Yes.

25 A No.

2876

1 Q And that is because of the ease with which the

2 system clock can be manipulated?

3 MR. SNELL: Objection.

4 THE COURT: Yes, that is argument. We have been

5 through the rest of it. Go ahead, next.

6 Q The reason why you can't tell that these dates

7 are authentic because there is a possibility that the system

8 clock can be manipulated.

9 MR. SNELL: Objection.

10 THE COURT: Yes, we have had it. Next.

11 Q Programs basically are instructions to the

12 computer to do things in a certain way, am I correct?

13 A Yes.

14 Q And the decryption program was written by someone

15 who basically the creator makes certain instructions to the

16 computer to do things with respect to a file in a certain

17 way, am I correct?

18 A Yes.

19 Q So then isn't it a fact that a program, a

20 decryption program can be created in such a way as to

21 influence the outcome of the document -- influence the text,

22 the original text of the -- withdrawn.

23 Isn't it a fact that the decryption program could

24 influence the interpretation of an encrypted file in such a

25 way that the correct interpretation does not come out?

2877

1 A If done properly, I wouldn't think so.

2 Q A laptop computer, that is basically a personal

3 computer that is personal to the user, am I correct?

4 MR. SNELL: Objection.

5 THE COURT: I am going to let him answer. Go

6 ahead.

7 A By that do you mean -- a lot of my associates at

8 work carry laptop computers we are issued by the business

9 that we use, and they are assigned to us. Is that what you

10 mean?

11 Q Unlike a desktop that owners generally share with

12 other users, laptop is basically personal.

13 THE COURT: Do you know?

14 THE WITNESS: I can see where you would draw that

15 inference but I --

16 Q And when documents are entered into the computer,

17 there is no way of identifying who the creator of each

18 document is?

19 A No.

20 (Continued on next page)

21

22

23

24

25

2878

1 MS. BARRETT: No further questions.

2 THE COURT: Hopefully Pliny the Younger will do

3 it for us tomorrow morning. 9:30 tomorrow morning, ladies

4 and gentlemen.

5 (Jury excused)

6 (Witness excused)

7 THE COURT: I would assume you have some.

8 MR. GREENFIELD: Yes, I do.

9 THE COURT: Some lawyers have absolutely no

10 concept of time. The government told me that they would be

11 eight weeks in this case. That is not going to happen.

12 Ms. Barrett told me that she was going to be a half an hour,

13 and it took, I guess, about three hours total. If I ask you

14 do you know, will you give me an honest answer?

15 MR. GREENFIELD: I honestly don't know, your

16 Honor, but I am pretty sure I can keep it under an hour.

17 THE COURT: I hope so. Do you have a witness for

18 tomorrow?

19 MR. SNELL: Yes, we do, your Honor. In fact he

20 is here right now, I think.

21 THE COURT: Who is it?

22 MR. SNELL: Cesar Calmada.

23 THE COURT: Where does he fit in?

24 MR. SNELL: From the Philippines.

25 THE COURT: Another guy from the Philippines.

2879

1 Are you going to use all this equipment or can we

2 get rid of it?

3 MR. GREENFIELD: If the government brings a

4 duplicate copy of that with which I was provided, I can get

5 away with it. I don't need the equipment. I can use the

6 duplicate copy of the report that he compiled. If I need

7 him to look at certain pieces of computer file, he can go

8 right to the page.

9 MR. SNELL: Judge, we are prepared to leave the

10 equipment where it is, and right now we would like to do a

11 brief redirect examination demonstration based on the cross

12 that was done.

13 THE COURT: All right, 9:30.

14 (Proceedings adjourned until 9:30 a.m., July 25,

15 Thursday, July 25, 1996)

16

17

18

19

20

21

22

23

24

25

2880

1

2 INDEX OF EXAMINATION

3 Witness D X RD RX

4 DAVID SWARTZENDRUBER........... 2795

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2881

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 25, 1996 10:20 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD

24

25

2882

1 (In open court; jury not present)

2 DAVID SWARTZENDRUBER, resumed.

3 MR. GREENFIELD: Your Honor, while we're waiting

4 there is going to be an application with respect to the next

5 witness.

6 THE COURT: We'll finish this man and let him go

7 home.

8 THE WITNESS: Thank you, your Honor.

9 (Jury present)

10 CROSS-EXAMINATION

11 BY MR. GREENFIELD:

12 Q Good morning, sir.

13 A Good morning.

14 Q Now, I think after yesterday, correct me if I'm

15 wrong, we established that you are not well versed as a

16 technician in that program that you were working with

17 yesterday, PHOTOMAGIC; is that correct?

18 A That's correct, sir.

19 Q You're not a computer programmer or encoder when

20 it comes to that particular program?

21 A I've not worked with that program before, no.

22 Q Is part of your expertise being a computer

23 operator or encoder, technical operative in that sense?

24 A I'm not sure of the question. I operate several

25 different application packages in utilities. That

2883

1 particular package I'm not familiar with.

2 Q Now, sir, when you testified on direct

3 examination you indicated, and correct me if I'm wrong, that

4 the first thing you did upon receiving whatever you had

5 received from the government, was to make a mirror image

6 backup of the contents of the computer?

7 A I restored the 4 millimeter DAT tape on to a

8 control drive.

9 Q And is that in layman's term a mirror image

10 backup?

11 A Yes, that was a mirror image backup.

12 Q And correct me if I'm wrong again, among the

13 purposes of doing that was to preserve the product, if I'm

14 using the right word, that you received at the time you

15 received it, so you can have a second copy of what it is

16 that came into your possession?

17 A That's correct, sir.

18 Q Do you know, or did you know on the day that you

19 received it in 1996, what date the FBI made their copy that

20 ultimately ended up in your possession?

21 A I'm not sure. I believe it was on the tape.

22 Q If I suggest a date January 23, 1995, would that

23 refresh your recollection?

24 A It may have been.

25 Q But clearly it was not prior to January 18, 1995?

2884

1 A I would think not.

2 Q And that's because there are entries in the

3 directory going at least to January 18, 1995?

4 A That's correct.

5 Q And that's the D directory, correct?

6 A I'm sorry?

7 Q D. Letter D slash directory, D drive?

8 A The D drive.

9 Q I'm swimming out here so you've got to help me.

10 A Okay, sir. The D drive was my drive. The D

11 drive that, if I had to think about how this mirror image

12 was made it came off the physical drive zero which was their

13 main drive and that would be their C drive. I have control

14 drive and that's my D drive. So when I restore it I restore

15 it to a D drive. My utilities are my physical zero drive.

16 Q Sir, do you know the date that the Philippine

17 National Police allegedly seized the computer in question?

18 A From what I heard it was the 7th I believe.

19 Q Not only do you work with computers, but in your

20 career you're also a police officer?

21 A I was, yes, sir.

22 Q And both as a police officer and now in the job

23 you have as investigator for Microsoft, would it be fair to

24 say that a basic investigative technique or tenet of

25 investigation is to preserve evidence at or about the time

2885

1 you receive it?

2 A That is correct.

3 Q To maintain its integrity, correct?

4 A That is correct.

5 Q I mean, if evidence in this case were to get

6 lost --

7 MR. SNELL: Objection.

8 THE COURT: Yes, to preserve evidence. Next

9 question.

10 Q Also, when you make this mirror image backup you

11 are preserving the integrity of that which you receive?

12 MR. SNELL: Objection.

13 THE COURT: I'm not sure that that necessarily

14 applies.

15 Q One of the reasons; is that correct?

16 THE COURT: Is that one of the reasons for doing

17 it?

18 THE WITNESS: Yes, your Honor.

19 Q This protects against modification, deletion or

20 erasure; is that correct?

21 A That is correct.

22 THE COURT: Well, go ahead.

23 Q And that could be either inadvertent or

24 advertent?

25 MR. SNELL: Objection.

2886

1 THE COURT: Well, let's assume it could be

2 accidental or inadvertent.

3 MR. GREENFIELD: We have that assumption that's

4 fine, your Honor.

5 THE COURT: Sure.

6 Q When you were a police officer, again, dealing

7 with evidence, particularly documentary evidence, when you

8 were preserving the evidence assume I think -- withdrawn.

9 In your resume among the areas that you worked in

10 was in gambling enforcement; is that right?

11 A That's correct.

12 Q And if you received a copy of somebody's betting

13 slips that became evidence, isn't that correct --

14 MR. SNELL: Objection.

15 MR. GREENFIELD: I'm trying to a make a point,

16 your Honor.

17 THE COURT: Go ahead.

18 Q And when you took that evidence into your

19 possession, a piece of paper, one of the first things you

20 did was you put your name or your initials and the date

21 right on that piece of paper, isn't that right?

22 A Sometimes you would, yes.

23 Q And the purpose for putting your name or initials

24 and the date on the paper was to freeze in time and maintain

25 the integrity of the documentation which you seized, isn't

2887

1 that right?

2 A That would be the reason, yes.

3 Q Now, this computer and the product that you've

4 been testifying about to the best of your knowledge as you

5 sit on the stand, it was seized on January 7, 1995?

6 A I believe so, yes.

7 Q Do you know that more than ten members of

8 Philippine National Police had possession of this computer

9 after January 7th?

10 A I was not aware of that.

11 Q Do you know that none of the people who had

12 possession of this computer made a mirror image backup?

13 MR. SNELL: Objection.

14 THE COURT: No. Did you know that?

15 THE WITNESS: I was not aware.

16 Q Would the integrity of the product that you've

17 been testifying about be put into great disrepute when the

18 fact is that nobody made mirror image backups when they

19 seized it?

20 MR. SNELL: Objection.

21 THE COURT: The answer to that is no. Do you

22 want to object or do you want to --

23 MR. SNELL: I'll withdraw the objection.

24 THE COURT: He'll withdraw the question. There

25 you go.

2888

1 THE WITNESS: And, I'm sorry, the question again?

2 THE COURT: Forget it. You're not going to get

3 it.

4 Is there a possibility if something goes through

5 ten people's hands, a computer, that they can either

6 accidentally or on purpose change what's on the hard drive

7 from moment A to moment A plus? There's 18 days.

8 THE WITNESS: There's always a possibility.

9 Q It would depend on their motives or lack of

10 motives in either deleting or adding, isn't that correct?

11 THE COURT: Could. Could it depend upon, that's

12 a good question. The answer to that is?

13 THE WITNESS: It could depend upon a motive.

14 Q Incidentally, did you review any FBI laboratory

15 reports that were prepared by the forensic laboratory of the

16 FBI in respect to this case?

17 A Yes, I did.

18 Q And do you recall the dates of those reports?

19 A I don't.

20 Q Do you know who the preparer of those reports

21 were?

22 A I believe it was Mary Horvath.

23 Q Was it a few pages, big reports, do you recall?

24 A I recall them being very short reports.

25 Q Did you read any handwritten notes or finding

2889

1 with respect to the FBI's computer forensic section's

2 findings?

3 A I saw some of the findings and some of the

4 handwritten notes.

5 MR. GREENFIELD: Your Honor, I would have an

6 application with respect to that.

7 Q Now, getting to the computer end of this -- and

8 help me -- when a person creates or puts a directory into a

9 computer in a perfect computer world would all the files

10 that are in the computer be listed chronologically if no

11 deletions, corrections or modifications were entered into

12 that directory?

13 A If you used the utility to do that and the

14 typical what will happen is the first available directory

15 entry will be the one that will be occupied.

16 Q Hypothetically, assume I put a software program

17 in on December 1st of 1990, and I start adding different

18 files from then on, and the first 20 files that I put in,

19 once I've saved it I never go back to those files again to

20 modify or delete. So now I've got 20 files in there. Would

21 the directory list them chronologically as to how they were

22 entered, time and date?

23 A It will list the time and date that the system

24 clock indicates, and if you did them all in one day and then

25 you went back and changed them, it will, whichever one you

2890

1 modify will reflect the new dates. So if you changed one

2 that's at the top of your directory it's going to not be in

3 chronological order.

4 Q It must be my question because I thought I put in

5 the question that they're perfect, nobody ever goes back,

6 all you do is you create file 1, you save it, you create

7 file 2, you save it, and you go all the way down to 20?

8 A And you just keep making new entries.

9 Q New entries never going back to change or delete

10 or correct or modify. So there should be theoretically a

11 chronologically correct menu of files in the directory?

12 A That's what I would think.

13 Q Now, if files are deleted, say in this list of

14 20, number 7 and number 12 were deleted, then they would

15 assume the 21st entry or the 7 spot would assume the 21st

16 entry in my hypothetical; is that correct?

17 A I'm sorry, if you deleted --

18 Q Say, after I've done this list of 20

19 chronologically correct entries or files, then I decide I

20 want to delete file number 7, and it's now deleted. So

21 there's a blank spot in that directory now, or in that

22 program. The next day I come in and I say, well, I'm going

23 to create a new file, would that take spot number 21 or

24 would that take spot number 7?

25 A Well, in the best world after you turn your

2891

1 machine off and you're running DOS 6.2 it should take the

2 first available cluster.

3 Q Now --

4 THE COURT: That would be which one?

5 THE WITNESS: That would be right, if that was

6 the first available cluster that would be right over that

7 cluster.

8 THE COURT: Over 7?

9 THE WITNESS: Yes, sir.

10 Q Are we dealing with DOS 6.2 here?

11 A Yes.

12 Q And you say that in the best possible world.

13 Does that mean it's subject to some happenstance?

14 A The way it's supposed to work is that when you're

15 in DOS 6.2 if you have your machine on it will always grab

16 the next available cluster. It won't go back and take the

17 first available, it will take the next available in line.

18 When you turn your machine off it goes all the way back to

19 the first available cluster.

20 So if you turned your machine off and you were to

21 write another file that could occupy that cluster it would

22 fill that space. It should fill that space if that is the

23 first available one. If you continue writing and you write

24 your new file, when the machine is on it will write it in

25 the next available cluster which will be many clusters down.

2892

1 Q You keep throwing in "it should, it could," and

2 so on. You're saying in most instances that's the way it's

3 supposed to happen, but you can't basically say it will

4 happen every time that way?

5 A That is the way it's supposed to work.

6 Q But it doesn't sound like you're giving it your

7 Good Housekeeping Stamp of Approval, it always happens that

8 way?

9 A That's the way it's supposed to work.

10 Q Now, can you call up the WINFAX data file on the

11 computer in front of you.

12 THE COURT: I assume all machines are working.

13 Go ahead.

14 Q Is that the WINFAX data? Could you get the

15 directory for that, please.

16 Is there an entry at about 9:03 a.m. on January

17 18, 1995?

18 A January 8th, 18th.

19 Q Right at the bottom.

20 A I'm sorry?

21 Q January 18, 1995. 9:03 a.m.

22 A Yes, there is.

23 Q And what does phone PBK mean?

24 A I believe that's the phone book.

25 Q You believe or you're not a hundred percent sure?

2893

1 A I believe it is.

2 Q Now, have you looked, or can you tell from

3 looking at this or during the course of your investigation

4 when this entry was created?

5 A It was created or modified on 1/18/95.

6 Q And what is phone PBK? What does that really

7 mean?

8 A I believe that that's the phone book listing

9 within WINFAX.

10 Q So does that mean on January 18, 1995, somebody

11 either created or modified an entry in the phone book of

12 this computer of this program?

13 A Something caused that entry to understand it to

14 be addition, correction, a modification or creation.

15 Q Something caused it. I must tell you that I am

16 computer illiterate, so maybe I'm wrong, but like this

17 computer, is it capable of turning itself on and making an

18 entry?

19 A This one isn't, no.

20 Q I mean, it just can't like decide one day,

21 saying: You know, I haven't worked in 12 days, I need to

22 make an entry.

23 It just doesn't do something like that, does it?

24 A Let me explain a little further. What I'm saying

25 is that what can happen sometimes when you run an

2894

1 application program depending upon that application, if

2 there's memory shortages, if there's hardware conflicts,

3 sometimes there will be an abrupt ceasing of the operation

4 of the program. When that occurs, just like a temporary

5 file will be, sometimes there can be a conflict which

6 results in whatever you're working on to -- I'm not saying

7 it happened in this particular circumstance. You're asking

8 what conditions can cause that, and I think you have to be

9 mindful of that when you look at a computer that there are

10 things that can happen that are beyond data entry.

11 Q That's a possibility is what you're saying?

12 A Yes, possibly.

13 Q But the likelihood is that there was some human

14 intervention here, isn't that right?

15 A Typically when I look at a file like that I felt

16 it was created or modified in 1995. If I don't know, that's

17 what it tells me.

18 Q Can you call up whatever entry was made in this

19 phone book on January 18, 1995?

20 A Do you want it into an editor? Do you want me to

21 get into the actual program and do it? We can do it both

22 ways.

23 Q I could say yes to both and I wouldn't have any

24 idea what I'm saying yes to.

25 A This is what it looks like in the editor which is

2895

1 not going to do us any good, so I'll go into the program.

2 What I'll do is I'll activate the WINFAX application. It's

3 in the group files here. There will probably be an error

4 message because it's going to look for a modem. This is the

5 first thing that comes up is the registration certificate so

6 it's looking for a communication port. Now it doesn't have

7 one. Here's a phone book record, and the phone book as you

8 can see matches the file name phone.PBK.

9 Q Yes. Where is the entry?

10 A ED, FA and SIR would be the record.

11 Q So, therefore, whatever FA stands for and the

12 other initials or letters that you just stated, were created

13 most probably by human force on January 18, 1995?

14 A No, I'm not saying that.

15 Q You're not?

16 A No, what can happen is that you could have had ED

17 and FA entered at sometime prior and SIR entered on 1/18.

18 You also could, there's a lot of possibilities. You could

19 have changed the name of the file. This looks like it's not

20 a default file. It's under phone book. You can see when I

21 implicate this that I create other file names and if I

22 wanted to I could make it into Test.PBK and transfer the

23 contents, and that would update the file.

24 Q Do you have any indication, or do you have any

25 way to say that this entire file was not created by somebody

2896

1 on January 18, 1995?

2 A Absolutely not.

3 Q Or modified on January 18, 1995?

4 A That's correct.

5 Q Can any forensic scientist do that?

6 A I would be surprised.

7 Q Now, in the same grouping if you go down maybe to

8 the next page on that directory that we were just looking at

9 where phone book was on on January 18, 1995, is there an

10 entry for REGDAT?

11 A Yes.

12 Q Is that on the computer screen now?

13 A It is.

14 Q Again, was that a file created on January 18,

15 1995?

16 A Yes, created or modified on January 18, 1995.

17 Q And that was created at 10:22 a.m.

18 A Yes, that's what it says, correct.

19 Q Again, can you call that particular file up for

20 the jury?

21 A Yes. The easiest way to do that is when we first

22 entered into WINFAX, exit WINFAX again, I'll reenter and

23 this should be the registration date. Just to confirm it

24 what I can do is associate this with the right document and

25 you can see that it's the same contents so it's the same

2897

1 file.

2 Q It has a phone number at the bottom, the word

3 Manilla in it, sent registration to UK London, correct?

4 A Correct.

5 Q And it was all either created or modified on

6 January 18, 1995?

7 A That's correct.

8 Q Sir, if you go further down to January 9, 1995 at

9 9:49 a.m., do you see another entry?

10 A Yes.

11 Q What does that entry mean, or would you describe

12 it for the record and the jury what that entry means?

13 A I believe it's a sent fax.

14 Q S meaning sent?

15 A I believe so, yes.

16 MR. GREENFIELD: We just cleared the room.

17 THE COURT: I guess they got enough.

18 Q FX sent, correct?

19 A I believe so, yes.

20 Q And that would be on January 9, 1995 at 9:45 a.m.

21 a fax was sent from the computer which you haven't examined?

22 A It may have been, yes.

23 Q When you say, may have been, what is the

24 qualification? Why the "may?"

25 A Well, we're talking the other day about creating

2898

1 temporary files. Well, FXS doesn't mean, I believe that's

2 extension. It means that it was sent, but I don't know that

3 was actually sent from the computer.

4 Q But on that date if the date is correct and it

5 hasn't been changed by a resetting and a save, somebody on

6 that date, the night of January, 9, 1995, entered the

7 computer for the purpose of hopefully sending a fax?

8 A Well, or it could have been a key stroke and a

9 save. It could have been another save on the machine.

10 Maybe they didn't want to send the fax. They just wanted to

11 resave a document. Maybe they hit a key stroke and then

12 closed out of it. I don't know.

13 Q But if I tell you anybody who entered --

14 withdrawn. If I tell you a Philippine National Police

15 official who had control of this computer says he merely

16 browsed the computer would that explain this entry?

17 MR. SNELL: Objection.

18 THE COURT: Well, put the question the other way.

19 Merely browsing the computer, would that change anything in

20 this?

21 THE WITNESS: I would think that merely browsing

22 through the computer and through this system if you're using

23 the utilities to look at this file should not change this.

24 Q Now, sir, would you go to the Window MAGIC file.

25 Could you call it up. Before you do that, sir, I'm sorry.

2899

1 Is there a program, software program in this computer that

2 deals with PHOTOSTYLER?

3 A Yes, I believe there is.

4 Q And can you through your ability to do what you

5 do with that keyboard up there, call it up on the screen?

6 A Yes, I believe so. There it is. You want to see

7 the top of it here?

8 Q All right. It's my error in asking you to do

9 something. What I mean is on January 10, 1995, PHOTOSTYLER

10 was somehow activated in this system. Can you pull it up in

11 the directory?

12 A Okay.

13 Q I apologize for my lack of a clear question.

14 A There's the correct directory.

15 Q Say again?

16 A This is the correct directory. This is the

17 directory for PHOTOSTYLER has the directory, and then the

18 actual PHOTOSTYLER has this directory right here.

19 Q Do you have an entry on January 10, 1995?

20 A In the PHOTOSTYLER directory? I'm not seeing

21 one.

22 MR. GREENFIELD: May I approach the witness, your

23 Honor?

24 THE COURT: Go ahead.

25 Q I show you this document, sir, and if you would

2900

1 direct your attention to the circled item.

2 A This is isn't in the PHOTOSTYLER directory. This

3 would be in the Windows directory. It looks like the one

4 you have circled an initialization file so it should be in

5 here. Is it 2,630 bites?

6 Q Is it January 10, 1995 at 7:14?

7 A Well, what we've done is we've been using that

8 and because we've been using the program it's updated the

9 initialization file so we have a date on here of 7/23/96.

10 Q That was yesterday?

11 A Yes, sir.

12 Q Now, sir, is PHOTOSTYLER a program similar to

13 PHOTOMAGIC, or is it really showing my lack of

14 understanding?

15 A Not at all. I would say that they're similar

16 programs.

17 Q Are you familiar with PHOTOSTYLER?

18 A As much as I am with PHOTOMAGIC.

19 Q That's a fair and honest answer. I'm not going

20 to ask you to do anything.

21 But would it indicate, based on this entry, that

22 based on what I showed you just a few moments ago on January

23 10, 1995 at about 7:14 a.m. somebody used PHOTOSTYLER or

24 activated PHOTOSTYLER in the computer?

25 MR. SNELL: Objection, unless there is an offer.

2901

1 MR. GREENFIELD: I'll offer it, your Honor.

2 THE COURT: The document, piece of paper.

3 MR. SNELL: Then I'll withdraw the objection.

4 MR. GREENFIELD: It's in evidence, your Honor.

5 MR. SNELL: Now it is.

6 THE COURT: Sure.

7 MR. GREENFIELD: It's offered, defendant whatever

8 letter it is.

9 (Defendant Shah Exhibit D received in evidence)

10 Q Now, sir, there's no mystery. That's a document

11 that you created, isn't that right?

12 A It could have been. I didn't have any writing on

13 my document.

14 Q Well, assume the writing was put there by me, the

15 document itself --

16 A This could have been one of my directory

17 listings, yes.

18 Q And does that indicate that on January 1, 1995,

19 at about 7:14 a.m. somebody initiated or activated

20 PHOTOSTYLER in this system?

21 A I believe it's about 7 minutes after midnight.

22 Q 7 minutes after midnight, excuse me.

23 A Yes, this would appear to me that somebody opened

24 up PHOTOSTYLER.

25 Q And could you tell if any files were created

2902

1 based on that entry?

2 A Save files, no, I can't.

3 Q Now, sir we'll go to the Window MAGIC now.

4 MR. GREENFIELD: Your Honor, I will get a clean

5 copy without the writing for the exhibit if the Court wishes

6 at a later point.

7 A Which one would you like to go to?

8 Q Window MAGIC directory.

9 A We're there.

10 Q Now, can you tell by looking at the directory of

11 Window MAGIC what date it was created?

12 A The directory itself?

13 Q Yes, sir.

14 A It looks like it was last modified that directory

15 on 9/10/94.

16 Q The "last modified" meaning?

17 A That something within that directory was changed

18 on 9/10/94.

19 Q And you can't tell from the entries that --

20 withdrawn.

21 There is no way for you to tell when the

22 PHOTOMAGIC was first installed in this computer?

23 A No. I can't tell that.

24 Q It could be 9/10/94?

25 A That PHOTOMAGIC was installed?

2903

1 Q Yes.

2 A I wouldn't think so. There's earlier dates than

3 that date.

4 Q But the earlier date is 10/30/92. The next

5 following dates, 9/19, aren't those all programs or

6 utilities within PHOTOMAGIC?

7 A Okay. I'm sorry, which one?

8 Q The right after the 9/14 -- 9/10/94, excuse me

9 initial entries, you have a MAGIC EXE10/30/93 MAGIC HLT

10 10/30/92, MGRXERL10/30/92.

11 Are those all factory dates that may attach to

12 the program itself?

13 A Yes, those could be the dates, especially on the

14 executable files that they were created.

15 Q So if you eliminate these six '92 entries and

16 attribute that to factory dating would it be a fair

17 statement that September 10, 1994 is the date that this

18 program is installed?

19 A Well, I don't know how you're getting that

20 conclusion.

21 Q I'm asking. I'm not getting. I'm asking the

22 questions. You're the one I'm asking if you can draw that

23 conclusion?

24 A I don't understand, no, because there are files

25 that predate that, unless I'm missing something here.

2904

1 Q Well, there's one file that predates it, that's

2 8/27/94, correct?

3 A From what I can see here, yes.

4 Q So every entry but for the factory dates is a

5 post-September 10, '94 entry, isn't that right?

6 A Yes, it appears that way.

7 Q Yet you do have an August 27, '94 entry sometime

8 after the program is entered, isn't that right?

9 A There's an August date after the program has been

10 already modified you're saying? Is there is an August --

11 Q You're accepting it as modification. Eliminate

12 the '92 entries which are probably factory dated, correct?

13 A Yes.

14 Q The earliest date you have in this program is

15 September 10, '94, which is the first created program but

16 for that August entry much later on?

17 A Okay.

18 Q Correct?

19 A Yes.

20 Q Would it be fair to say that the August 27, 1994

21 entry was one of those reset, backdated and saved dates?

22 MR. SNELL: Objection.

23 THE COURT: Yes.

24 Q Can you say if that August 27, '94 entry was a

25 backdated reset date?

2905

1 A I can't. It could be copied. It could be copied

2 from somewhere.

3 Q There are a number of explanations for it is what

4 you're saying?

5 A There could be.

6 Q And there's no true forensic explanation for it?

7 A The only explanation I could think of is that

8 when I see a date like that is that there could have been a

9 file in existence in August that was brought over, or

10 somebody could have, the date of the clock could be wrong.

11 I mean there's all kinds of explanations. I don't, I can't

12 tell you what specifically created that, or why. All I can

13 tell us is that there is an August date, and in there.

14 Q Now, you do have a January 18, '95 entry at 11:54

15 a.m., isn't that correct?

16 A I need that other list. Is that one that we

17 could have --

18 Q It should be on the same list where you start out

19 at September 10, 1994.

20 A And it's in Windows MAGIC.

21 Q Windows MAGIC.

22 A I'm in it, I don't see it. Probably one that was

23 changed the other day. What's the name of the file?

24 Q Would it have been changed yesterday?

25 A Yes. What's the name of the file?

2906

1 MR. GREENFIELD: May I approach the bench, your

2 Honor?

3 THE COURT: Sure.

4 A Yes. I see it. The MAGIC INI file?

5 Q Yes, sir.

6 A Yes, January 18, 1995.

7 MR. GREENFIELD: Your Honor, could I save

8 sometime? Can I have your law clerk make a duplicate copy

9 of this so we can work off of it?

10 A That was changed to yesterday's date when we were

11 working with the files.

12 Q You mean when you were creating those files

13 yesterday?

14 A When we opened the program and closed the program

15 out those were the initialization files. So it will reflect

16 the dates that we were work working on the computer.

17 Q So while we're waiting for these documents to be

18 reproduced, would it be fair to say that on January 18,

19 1995, somebody got into the PHOTOMAGIC file?

20 A It would appear that way, yes.

21 MR. GREENFIELD: Hopefully the machine is close

22 by, your Honor.

23 THE COURT: I don't understand how they work it.

24 MR. GREENFIELD: You're talking about the

25 xeroxes? I've got those down cold.

2907

1 THE COURT: Do you?

2 MR. GREENFIELD: Yes, you put the paper in and

3 then you hope.

4 (Pause)

5 MR. GREENFIELD: Your Honor, maybe we can work

6 out of the screen itself, and when the paper comes in if we

7 have to back up, we'll back up.

8 THE COURT: All right.

9 Q Is there an entry in this directory or file in

10 this directory that represents X4.TIF?

11 A Yes, there is.

12 Q When was that entered or saved or created or

13 modified or whatever happened to it?

14 A The date is October 29, 1994.

15 Q At 12:45 p.m.

16 A Yes.

17 Q Now, did that replace an old file?

18 A I couldn't tell from this.

19 Q During your examination of the computer were you

20 able to tell if it replaced an old file?

21 A If X4.TIF replaced something?

22 Q Yes.

23 A I don't recall that I found anything that would

24 indicate that.

25 Q Would you be able to ascertain if it had replaced

2908

1 something?

2 A Possibly.

3 Q But you don't have a recollection now as you sit

4 on the stand that you did?

5 A I don't right now, no.

6 Q Now, if you recall X4.TIF represents a photograph

7 of an individual?

8 A Not specifically, but --

9 Q If you accept my representation that it does I'd

10 appreciate it?

11 A Yes.

12 Q If there was a little photograph that I had in my

13 possession and I had a scanner and I put the photograph in

14 the scanning device, how long would it take for that

15 photograph to become a file once it's put in the scanning

16 device?

17 A It's a machine-dependent, memory-dependent minute

18 or so.

19 Q So it's not a time consuming process?

20 A Is it time consuming?

21 Q It's not a time consuming process if you're

22 familiar with PHOTOMAGIC?

23 A All relative, but it's all dependent how long it

24 takes. I really couldn't say unless I saw the actual

25 machinery that made this. Sometimes if you have enough

2909

1 memory and you have the right equipment it can go rather

2 fast. If not, it can be a long process. You can see it's a

3 long or big file.

4 Q Again, you --

5 THE COURT: Wait, wait. We're not talking about

6 three minutes, are we?

7 THE WITNESS: No, your Honor.

8 THE COURT: Less than that?

9 THE WITNESS: Yes, your Honor.

10 Q Relatively short real time I'm talking about.

11 THE COURT: We're talking about something less

12 than three minutes. If we have real good machinery it might

13 be thirty seconds?

14 THE WITNESS: Or quicker, yes, your Honor.

15 THE COURT: Or quicker.

16 MR. GREENFIELD: Thank you, your Honor.

17 Q And if you go further down if you'd like to work

18 off the pages in front of you because I have the same pages

19 in front of me.

20 MR. GREENFIELD: Your Honor, I offer that as an

21 exhibit, too, your Honor. It's a two-page document.

22 THE COURT: We'll get it marked.

23 Q These were created by yourself, also, is that not

24 right?

25 A That's correct.

2910

1 Q If you go down toward the bottom of the page

2 you'll see two entries for January 18, 1995, one at 12:16

3 p.m., one at 12:13 p.m.

4 A Yes, I do.

5 Q The first one is .51267TNP, the second one is

6 .51268TMP.

7 A Yes, I do see them.

8 Q Were you able to call those up in your

9 examination of this computer?

10 A I don't recall that I did.

11 Q Can you do it now?

12 A It may be that they're hidden files in the C.

13 What I'll need to do is I'll need to put in my disk editor

14 disk and check it.

15 MR. GREENFIELD: Well, maybe we can do that

16 during the break. Save time. We'll go to something else.

17 THE COURT: Sure.

18 Q Is there any question but that those two files

19 were created on January 18, 1995?

20 A According to this, yes.

21 Q And the same is true at 12:15 p.m. just two

22 entries below the second of the two, a third file was

23 created on January 18, 1995?

24 A Yes.

25 Q And then one or two entries below that one was

2911

1 created on January 9, 1995?

2 A Right below that, yes.

3 Q And a fifth one, if you look to the second page,

4 was also created on January 9, 1995?

5 A That is correct.

6 Q That indicates a lot of activity in January of

7 1995 in this directory, does it not?

8 MR. SNELL: Objection.

9 THE COURT: A lot of activity.

10 Q It indicates activity post-January 6, 1995 in the

11 Windows MAGIC directory, does it not?

12 A It indicates that something occurred on January

13 8, 1995 and on January 9, 1995.

14 Q Now, sir, did you also check for deletions that

15 occurred in the computer system during your investigation of

16 this computer?

17 A I did.

18 Q And would it be fair to say a number of deletions

19 occurred post-January 6, 1995?

20 A I checked for unerased files and I couldn't

21 recover any unerased files, but I'm not sure if there were

22 any post-1995 deletions that I can recall. I can't recall

23 exactly what they were.

24 Q Well, I'm going to show you page 1 and 2 of these

25 documents and ask you if that refreshes your recollection.

2912

1 Sorry, Mr. Witness, Mr. Snell wants to see that

2 first.

3 MR. GREENFIELD: Your Honor, the other two pages

4 I offered as an exhibit I guess that will be Defendant's

5 Exhibit E, and I'm offering these as Defendant's Exhibit F,

6 two pages.

7 (Defendant Shah Exhibit received in evidence)

8 THE COURT: The document in front of you right

9 now, Mr. Swartzendruber, do you recognize that document?

10 THE WITNESS: Yes, I do, your Honor.

11 THE COURT: That's part of the report that you

12 made, isn't it?

13 THE WITNESS: Yes, it is, your Honor.

14 THE COURT: Is there any objection to marking

15 that in, F?

16 MR. SNELL: No objection.

17 THE COURT: Okay, F is received, too.

18 (Defendant Shah Exhibit F received in evidence)

19 Q Now, if you go to the Window MAGIC portion of

20 that report does it indicate to you that deletions occurred

21 in the Window MAGIC file?

22 A Yes.

23 Q On what dates?

24 A This was showing me that, it's not the date of

25 deletion. It's the date of either modification or creation.

2913

1 Q Well, what's the date?

2 A The dates on them are 18th of January, 18th of

3 January, 18th of January, 9th of January, 9th of January.

4 October 29, October 29, October 29.

5 Q Now, the January entries, correct me if I'm

6 wrong, all relate to 1995, right?

7 A The January entries do, yes.

8 Q And the October 29th entries relate to 1994?

9 A Yes. And this explains the first sheet why there

10 wasn't a hidden directory entry. Now I understand.

11 Q Now, if I might have that back, sir.

12 Do you have a copy of 355 in evidence before you?

13 A I do.

14 Q With respect to pages 15, 16, and 17.

15 THE COURT: Let's let the jury get it.

16 MR. GREENFIELD: I just wanted to respectfully

17 direct everybody's attention to that, your Honor.

18 Q If you look at page 17 at the top it indicates X4

19 TIF. Is that the way the photograph actually comes out with

20 that number at the upper left-hand corner?

21 A No, it does not. I put that on there.

22 Q You put that on yourself?

23 A Yes.

24 Q You typed it on? It seems to be scotch taped on.

25 A No, I used a label maker.

2914

1 Q Label maker?

2 A Yes.

3 Q Now, what program was used, as far as you can

4 tell, to create this photograph?

5 A I don't know. I could make an assumption.

6 Q And that would be?

7 A One of the two packages that are on here.

8 Q Now, I'm going to show you these three documents.

9 MR. GREENFIELD: Not at this time, your Honor,

10 but I ask they be deemed marked Defendant's Exhibit Shah G,

11 H and I, to be marked later for identification at this

12 point.

13 Q Looking at those pieces of paper or photographs,

14 can you ascertain by looking at them what the program was

15 that created the photograph in 17?

16 A Well, they're viewing it in PHOTOMAGIC.

17 Q Viewing it with PHOTOMAGIC, that means it could

18 have been created on another program, or it was created on

19 PHOTOMAGIC?

20 A It could have been created on another program.

21 MR. GREENFIELD: I would offer those as exhibits

22 in evidence, your Honor.

23 MR. SNELL: No objection.

24 THE COURT: Okay.

25 (Defendant Shah Exhibits G, H and I received in

2915

1 evidence)

2 A Actually, also when you talk about being created

3 like in an application like PHOTOMAGIC if you have a

4 scanner, sometimes the scanner might have the utility. It

5 will bring it in in the TIF format which is the scanned

6 image format. So maybe it's the scanner software that could

7 have done it very possibly, but then you can read it and

8 modify it with the utility program like PHOTOMAGIC or

9 PHOTOSTYLER or something else. There would have to be a

10 scanner icon or something on there I would think to pull

11 that in.

12 Q But with respect to PHOTOMAGIC you think you can

13 do that based on your ability to play with PHOTOMAGIC?

14 A I don't think my vast experience of that

15 application program will allow me to do that.

16 Q So what you're really saying is with a program

17 like PHOTOMAGIC you need someone who is well versed in

18 encoding or programming that type of program?

19 A No, not at all. Somebody that's just familiar

20 with the program. It doesn't require anything more than

21 passing a scanner over the top of an image that you want to

22 create a file of. Once that file is created then you bring

23 it into an application program you can view it or modify.

24 Q Like yesterday when you were trying to create

25 that card, you had some difficulty doing that?

2916

1 A I'm just not familiar with the program.

2 Q No, that's the point, somebody who is a capably

3 well versed encoder with knowledge of that program could do

4 it quite readily?

5 A Somebody that's familiar with the program could

6 do it very easily, if they could modify or change. I'm not

7 saying that PHOTOMAGIC, I don't know if PHOTOMAGIC has the

8 capability of scanning a document. It might be, in fact, I

9 think if you go back there is the utility here that will

10 create the scan and it's not PHOTOMAGIC, and what it will do

11 is it will bring in the image for you which is in fact image

12 in file format and it will bring in the scanned image and

13 then once you have that scanned image created a .TIF file.

14 Then there is a whole variety of application programs

15 opening that. I think you'll see the other day when I

16 clicked on the icon the different formats.

17 Q What you're really talking about is somebody who

18 has got the familiarity with it can deal with it and

19 somebody who doesn't has less of an ability to deal with a

20 particular program?

21 A Oh, sure, I'm not saying that --

22 Q It's like anything else --

23 MR. SNELL: Can we have one person at a time?

24 Q I'm sorry. Experience with the program is really

25 what determines the ability to do or not do certain

2917

1 functions within the program?

2 A Oh, I would think so.

3 Q And the technical operative familiar with that

4 program could certainly do a lot more than you were able to

5 do on short notice yesterday?

6 MR. SNELL: Objection.

7 THE COURT: I don't think --

8 MR. GREENFIELD: I have no further questions,

9 your Honor.

10 THE COURT: You wanted to find out what two of

11 the files were all about during the break. We'll take the

12 break now and see what they are.

13 (Continued on next page)

14

15

16

17

18

19

20

21

22

23

24

25

2918

1 (Jury not present)

2 THE COURT: Sit down. Roy, sit down.

3 MR. KULCSAR: I apologize.

4 THE COURT: For your own benefit when the jury

5 goes in and out of the room, sit down. The last thing in

6 the world I want you guys to do is walk on the jury's feet

7 or lines or anything else.

8 Now, you wanted some files found. I have no clue

9 as to how to do it, and hopefully you can help

10 Mr. Swartzendruber during his period of time. There are two

11 down at the bottom of some page that you have there which I

12 don't think --

13 THE WITNESS: They took it back, your Honor.

14 THE COURT: They took it back. That's no help.

15 You've got to give it back to him. He can't find it without

16 the address.

17 MR. GREENFIELD: Okay.

18 (Recess)

19 (Continued on next page)

20

21

22

23

24

25

2919

1 (Witness resumed)

2 (Jury present)

3 THE COURT: All right, ladies and gentlemen. We

4 are maybe doing something slightly different but that is all

5 right. It is not the first time it has ever happened in

6 this courtroom, right? We are going to start redirect in

7 the middle of cross. That happens, all right. After we

8 have an opportunity over lunchtime, perhaps we may have some

9 more cross. We will see about it.

10 Go ahead. Why don't you do it from there. It is

11 either that or you are going to stand in front of the

12 monitor and the jury can't see it.

13 MR. SNELL: Yes, your Honor.

14 REDIRECT EXAMINATION

15 BY MR. SNELL:

16 Q Mr. Swartzendruber, yesterday you were asked a

17 number of questions about files that were dated after

18 January 6, 1995, is that right?

19 A That is correct.

20 Q And I believe that the day before yesterday there

21 was an exhibit introduced, Government's Exhibit 777A and B,

22 that included a listing of such files. Do you recall that?

23 A I recall the list of files, yes.

24 MR. SNELL: If we could show the witness and the

25 jury 777A and B, please.

2920

1 I am sorry. One of those is incorrect.

2 THE CLERK: This is 775.

3 MR. SNELL: Sorry about that.

4 Q Mr. Swartzendruber, would you tell us once again

5 where those printouts came from.

6 A I printed those out from the mirror image drive.

7 Q Was there actually another page, an additional

8 page that was printed out at the same time? Do you recall

9 that?

10 A I believe there were three pages.

11 MR. SNELL: Your Honor, I would like to now show

12 the witness 777C, which is only for identification at this

13 point.

14 THE WITNESS: Yes.

15 Q Do you recognize that, sir?

16 A Yes.

17 Q Is that the third page?

18 A I believe it is the second page.

19 Q In any event, are 777A, B and C the complete

20 three pages that you were recalling?

21 A Yes, I believe so.

22 Q If you like, would you take a look at 3533G.

23 A Yes.

24 MR. SNELL: Your Honor, the government offers

25 777C.

2921

1 (Government's Exhibit 777C received in evidence)

2 Q Sir, would you take a look, please, at 777C and

3 tell us what sorts of files are on there. I am going to

4 give you the laser pointer again.

5 A Thank you.

6 Q Starting at the top, if you would.

7 A There is an initialization file created by

8 Norton. This is a Norton Utilities.

9 This is an AUTOEXEC.BAT file, which is a batch

10 file.

11 NCD TREEINFO is also unique to Norton, I believe.

12 This is from the Atlas directory.

13 This is a text file related to a chemical

14 program.

15 A COM file is a memory resident file. It shoots

16 it up in the memory, very small, usually 64K. It is like an

17 executable file.

18 Temporary file, temporary file. My best guess

19 this is Windows driven and it creates the temporary files

20 again.

21 Mouse is a group. If we looked in the computer,

22 you would see that there is probably a mouse group.

23 COMIT is a program for communication. It is a

24 modem-based program. So I don't know what this extension is

25 here.

2922

1 These are two DOS default directories.

2 This one, I can't recall. I think it is just

3 some jumbled ASCII text in it. There is no extension.

4 DUKE, it looks like a configuration file.

5 Whatever resides in here looks like some type of

6 DAT file maybe. Again here another DAT file.

7 This would relate to up here.

8 Q Could you just identify, please, which ones you

9 are pointing out.

10 A WCHEM text, the COM files, the TMP files 1 and 2,

11 and this is another initialization file.

12 Q What is an initialization file?

13 A Keeps parameters for the program that you are

14 operating in. Every application will have a different one.

15 So whatever hardware, whatever you have to configure that

16 program will be entered up into that initialization file,

17 and as part of the start routine it should read the

18 parameters of that so the program functions properly.

19 Q Have you had an opportunity to study any of the

20 files on 777C that show zero bytes as the size of the file?

21 A I have.

22 Q Have you formed any opinion as to how those files

23 got there, based on your study?

24 A Yes, I did. Those were the chemical ones down

25 here and up here.

2923

1 Q What did you conclude with respect to those

2 files?

3 A That when you open up Windows, what will happen

4 is, for some reason, this is a directory that is supposed to

5 be included -- it is my understanding -- included into this

6 program.

7 Q By this --

8 MR. KULCSAR: Let him finish the answer.

9 Q I am sorry, I apologize. By "this," are you

10 referring to the chemical subdirectory?

11 A H12C6.DAT is part of the program. It is my

12 understanding the programmer intended for that file to be

13 there, and I had the opportunity to speak with the author of

14 the program, Mr. Poole.

15 MR. GREENFIELD: Objection, your Honor.

16 THE COURT: Yes. Well, you may have had the

17 opportunity to speak to him but I don't want to hear what he

18 said.

19 THE WITNESS: OK, your Honor.

20 A CHEM.COM, what happens with that, and I believe

21 these TMP files, when you run the Windows based program, it

22 will reset the time and day and show zero bytes in the file,

23 so I took a look why it is doing that, and it could be a

24 whole variety of reasons, due to poor programming -- it

25 could be a variety of reasons. So I took a look to see

2924

1 where the cluster is for this program, where it starts at,

2 where it would reside, and why it is there.

3 What happens is, when you look through the disk

4 editor at Norton, it will show that the beginning cluster

5 for these zero byte programs seem to fall on cluster zero,

6 which is a reserve cluster that you can't were write to.

7 Your IO SIS is actually in zero cluster.

8 So there is no way that I can think of that this

9 COM program would run. There is no way anyway, but it

10 points to cluster zero. First, to run the program, it keeps

11 running up to the current date. The chances are that we

12 would run up to the current date on all of these files.

13 Q Yesterday you were also testifying about

14 association of files. I think you were referring to

15 temporary files at the time. Do you recall that?

16 A Yes, I do.

17 Q Would you be able to show us on the computer now,

18 by going into file manager, the temporary files that were on

19 the computer?

20 Could you scroll down the directory and identify

21 for us any temporary files and tell us whether they are

22 associated or not?

23 A We did. I believe we wrote over all these

24 temporary files the other day to show, so they are all going

25 to look like they are associated, but these all should be

2925

1 blank, all these temporaries here. We did that in part of a

2 demonstration. I would have to reinstall the system to show

3 the ones that were blank.

4 Q What do you mean by reinstall the system?

5 A Since we have been into Windows we have made some

6 modifications because we created files, and when we created

7 those files, the whole architecture of the drive has

8 changed, and one of the things we did in a demonstration is,

9 when we were showing how these icons were blank the other

10 day, the minute that I wrote in the one, it grabbed all the

11 other temporary files and wanted to associate all the

12 temporary files with the Write file even though they were

13 blank. So I would have to take the mirror image from the 4

14 millimeter DAT and put it into the machine, reconstruct it

15 and show the way it was when I originally received it.

16 Q Yesterday you were also asked some questions

17 about decryption. Do you recall that?

18 A I do.

19 Q Would you please retrieve for us a file in the

20 Windows directory called MAD.TIT. Can you find that?

21 A That one isn't associated.

22 This is MAD.TIT.

23 MR. SNELL: Your Honor, if everyone could please

24 turn to page 8 of Government's Exhibit 355.

25 Q Mr. Swartzendruber, while they are looking for

2926

1 the page number, can you save this window but pull up

2 another file at the same time?

3 A Yes.

4 Q The file that I am looking for is Windows back

5 slash XMAD.TT.

6 A I found it and I will associate it with Write.

7 Q Sir, are we looking at the beginning of the two

8 files right now?

9 A Yes.

10 Q Without losing these two windows, could you go

11 back to file manager and tell us the size of these two files

12 in terms of bytes?

13 A MAD.TIT is 2,432, and XMAD.TT is 2,432. They are

14 the same.

15 Q Can you also read the date of creation and the

16 time of creation for each?

17 A The date of MAD.TIT is 11/10/94, and the time is

18 8:29 a.m. XMAD.TT is 11/10/94, 8:18 a.m.

19 Q Seeing that the two files appear to be the same

20 size, does that tell you anything with respect to any

21 relationship that might exist between them?

22 THE COURT: Yes, they are the same size. Right?

23 THE WITNESS: Right, your Honor.

24 THE COURT: That's what it tells you. What's

25 next?

2927

1 Q How about from an encryption standpoint?

2 A That if --

3 DEFENDANT YOUSEF: Objection, your Honor.

4 THE COURT: Absolutely, sustained.

5 Q Sir, would you please run the program that you

6 ran the other day, the decryption program on XMAD.TT.

7 A What I will do is I will change it to XMAD.BK for

8 break, and then I will show that there is not one in there

9 now. There is nothing in there now.

10 There is the program to decrypt, DEC, and then I

11 will go XMAD.TT for the in file, and the out file XMAD.BK.

12 Then I will enter, and now there will be an XMAD.BK, which

13 is right there, we just created. I will exit, see if I can

14 bring up another one here.

15 There is XMAD.BK. I will open that. Then what I

16 have is --

17 THE COURT: We now have three --

18 THE WITNESS: Three documents now. What we

19 have -- and put it at the top here -- the first one was

20 MAD.TIT, which is the plain text, and then the XMAD.TT is

21 the cipher text, and XMAD.BK is plain text again.

22 Q Now, sir, yesterday you were also asked some

23 questions about a file, I believe in the chess directory.

24 Do you recall that?

25 A I do.

2928

1 Q Can you retrieve the CHESS.SAV file within the

2 chess subdirectory?

3 A Is it all right to get rid of this now?

4 Q Yes, you can get rid of that.

5 A This is the CHESS.SAV. I will associate it real

6 quick so we can read it.

7 Q Can you tell us before you go anywhere what date

8 that file reflects in the computer?

9 A It reflects 7/24/96, at 12:16.

10 Q That is 12:16, the time?

11 A P.m., because we changed the times, I believe.

12 THE COURT: Changed the initials.

13 THE WITNESS: Yes.

14 THE COURT: There was an RS that was changed to

15 TEST.

16 THE WITNESS: Correct.

17 Q In order to see the file that you were working on

18 yesterday before you changed the initials and saved the

19 file, what would you have to do?

20 A Before I changed it?

21 Q Yes. In order to see it the way it was before

22 you changed anything.

23 A I would have to run the program.

24 Q By run the program, what do you mean?

25 A I have to go into the Chess directory and execute

2929

1 the Chess executable file. Then once I am there, I have to

2 load a saved game.

3 Q Can you do that for us now?

4 A Sure, yes.

5 I am now into the chess game. It says load game.

6 I will hit enter and it brings up RY and TEST.

7 Q At this point are you able to retrieve the file

8 as it appeared before you made the modification where it

9 said TEST?

10 A I can try.

11 MR. KULCSAR: Your Honor, can I speak with

12 Mr. Snell?

13 Q Mr. Swartzendruber, everything that I ask you

14 now, I want to make sure that we preserve all the changes

15 that were made yesterday. Can you do that?

16 A It depends what you want done but I can't change

17 anything to this. I can't type in any other names, or else

18 it would change it.

19 Q I am not asking you to type anything in to change

20 what we see here. I am asking, can you show us the file the

21 way it looked before it was changed yesterday?

22 A I can't -- I would have to change it back.

23 Q Would there be any other way that you could show

24 us what that file looked like?

25 THE COURT: Yes, if he ran the 4-inch DAT tape

2930

1 and started all over again.

2 THE WITNESS: That is correct, your Honor.

3 THE COURT: That is what I thought.

4 Q I am not going to ask you to do that right now.

5 I just wanted to ask you that question.

6 Would you please retrieve for us a file in the

7 Windows directory, Magic subdirectory, titled Z9.TIF.

8 THE COURT: Wait -- go ahead, get back into

9 Magic.

10 Q Actually, once you find it in the directory, if

11 you could just hold it there and tell us what the date and

12 time of creation are.

13 A Which one was that again? I am sorry.

14 THE COURT: That is what I was waiting for. Z9

15 dash something or other.

16 MR. SNELL: TIF, your Honor.

17 A That is in Windows subdirectory?

18 Q Magic subdirectory of Windows.

19 A OK, I found it.

20 Q Can you read for us the time and date of creation

21 that is reflected there?

22 A The date is 10/29/94, 6:12 p.m.

23 Q Could you pull that up.

24 A I will see if it is associated with the viewer.

25 Q Can you make that a little bigger so we can read

2931

1 it?

2 A Yes.

3 Q I would also like you to retrieve and first

4 actually just show us in the directory a file, same

5 subdirectory, X8.TIF.

6 A Found it.

7 Q Could you just read for us the time and date that

8 is reflected there.

9 A The date is 10/28/94, and the time is 12:30 a.m.

10 Q Could you pull that file up for us.

11 A Would you like it larger?

12 Q Just a bit, if you could.

13 Mr. Swartzendruber, yesterday I think you were

14 also asked about were the creation of temporary files. Do

15 you recall that?

16 A I do.

17 Q Could you show us how a temporary file might be

18 created through one of the means that I believe you

19 testified about, which was shutting off the computer in some

20 way that you characterize as improper?

21 A Do you want me to do that?

22 MR. GREENFIELD: Your Honor, I object at this

23 point with respect to these exhibits, which were not

24 discussed yesterday, or today, as a matter of fact.

25 THE COURT: What does the question have to do

2932

1 with this exhibit?

2 MR. SNELL: I am sorry, your Honor.

3 THE COURT: Why did you call up this file? Are

4 you finished with this file?

5 MR. SNELL: Yes, I am finished with it, your

6 Honor.

7 THE COURT: All you want is a temporary file

8 created?

9 MR. SNELL: Yes, I want to see if we can create a

10 temporary file in connection with the testimony yesterday.

11 MR. GREENFIELD: Your Honor, while it is

12 happening, with respect to the record itself, if at a later

13 point it becomes apparent that it should be explained --

14 THE COURT: We will talk about it in a minute.

15 A OK. In the absence of having a temporary

16 directory, what will happen is that Windows will usually

17 drop all the temporary files in the Windows subdirectory, so

18 it should reside in here.

19 Q Sir, excuse me a second. Is there a temporary

20 directory in this computer, temporary file directory?

21 A No. I wasn't able to find one, not that I can

22 recall.

23 I am going to activate Write, but what to watch

24 here, you will see WIN386.SWAP. That is that dynamic swap

25 file that erases itself every time you turn the computer

2933

1 off. That is the most current date, 7/25/96, at 12:18 p.m.

2 What should happen is, I am going to have to go

3 to another window to activate Write. A temporary file

4 should be created in here with zero bytes in it. So what I

5 will do is, I will click on Write and then I will make it

6 smaller. It is right here. What we have done is, we have

7 already told the computer to associate all temporary files

8 with a Write document.

9 If we were to start this computer without the

10 association, disassociate it and have it the way it was,

11 this would be blank in here. But here it is. There is the

12 tilde, the three letters WRI, the default alphanumeric 4

13 lettering scheme, and a dot TMP with zero bytes, showing

14 that we just opened up a Write document.

15 So then what you do, you type in something, this

16 is a test, and then if you do a save on it -- woop -- we

17 have got to give it a name. We will call it TEST1.WRI.

18 Now what we have done is, we have a document

19 called TEST1.WRI, and we have another document above it with

20 270 bytes in it, which if I clicked on it will show you that

21 this is a test, and you see the familiarity of the boxes at

22 the top, what we were talking about the other day, the

23 temporary files. This saves itself in case I wanted to undo

24 an edit.

25 If I were to turn this machine off right now or

2934

1 even if I was to back out of this machine, it already saved

2 it -- see, it has the Write extension on it, so I am not

3 convinced that that would disappear right now. If we turned

4 the machine off it would still stay. What we have to do is

5 get the computer back in its original state so we don't

6 associate it with a Write document. The minute I write

7 another temporary file -- it is not going to operate the way

8 it would as if we put in a pristine tape to reflect the

9 computer that was seized. We have already touched these

10 files, we have already said every time you see a temporary

11 file come up, associate it with Write and save it. So it is

12 going to save it.

13 Q If you restored the tape and had the computer

14 back the way it was when you first got the tape, what do you

15 expect would happen?

16 A That file will disappear as soon as I exit Write.

17 Q What if you did not exit Write but rather just

18 shut off the computer?

19 A The file will stay.

20 MR. KULCSAR: I am sorry --

21 A I am sorry, the file will remain.

22 Q Where would that file be filed?

23 A By date. I have it sorted by date right now, so

24 it would stay right there with a temporary extension, just

25 as you see it.

2935

1 Q You say you have it sorted by date.

2 A Yes.

3 Q How does the Windows program normally list files

4 in a directory if there is no request for a specific way of

5 sorting them?

6 A There is a variety of ways: by name, by type, by

7 size. If it is sorted by name, it is going to take it

8 alphabetically here. By the type of file. There is by

9 type, what kind of file it is.

10 Q Sir, if you were to print out or just display a

11 directory from the DOS portion of the computer that just

12 showed the files, do you know which order they would appear

13 in?

14 A I can show you here. Would you like to see it,

15 what a regular DOS directory would show?

16 Q Sure. That might save some time. Let's do that.

17 A You know, it may disappear here because I didn't

18 exit out yet. I saved it. So it may disappear if we go

19 back and -- so there it is. I didn't realize I didn't exit.

20 I exit -- there it goes, it is gone.

21 Q You are referring to the temporary file that was

22 created?

23 A Yes, the temporary file did disappear. I had it

24 associated so I could read it, but I didn't realize I still

25 had the application open. I closed the application and now

2936

1 it disappeared.

2 Q Could you create it again and then shut the

3 computer off and then turn it back on again and tell us what

4 happens.

5 A Yes. So what I will do is the same thing I did.

6 I just created a zero byte file there, there it is. I

7 grabbed another random 4-letter, 1525. I will put in this

8 as TEST2. I will do a save on it. File save. It will ask

9 me what I want and I will call it TEST2.WRI. When I enter

10 it, it will fill that file again, this time 269, extra

11 character in there.

12 What I will do is, I will abruptly shut off the

13 machine. I will bring back up file manager, go into the

14 Windows directory, and what you see is the 1525, the tilde

15 WRI, 1525.TMP file. Here is TEST2 that we did. You will

16 see the dates are the same. You click on it, on TEST2, and

17 it brings up this is TEST2. Then if you go to 1525 and you

18 click on it, it should have those characters again, and then

19 this is TEST2. So it saved it when you did the abrupt

20 shutoff, as it is supposed to.

21 (Continued on next page)

22

23

24

25

2937

1 MR. SNELL: Your Honor, would this be an

2 appropriate time to break for lunch?

3 THE COURT: Yes, it would be. All right, ladies

4 and gentlemen.

5 (Jury excused)

6 THE COURT: All right, Mr. Swartzendruber, would

7 you wait outside, please.

8 (Witness excused)

9 THE COURT: I have a very strong feeling that,

10 one, a lot of this redirect is improper. If the feeling

11 grows much stronger, it will end abruptly. Is that clear?

12 MR. SNELL: Yes, your Honor.

13 THE COURT: There is an awful lot, I think, also

14 which is directed at oh, my goodness, I have an expert on

15 the stand in computers and I have always wondered what

16 happens if, and that, sir, is a perfect waste of time. This

17 case is going slowly enough as it is. I am going to tell

18 the jury that you are merely wasting time.

19 MR. SNELL: I understand, your Honor.

20 THE COURT: I hope so.

21 (Luncheon recess)

22

23

24

25

2938

1 A F T E R N O O N S E S S I O N

2 2:00 p.m.

3 (In open court; jury present)

4 DAVID SWARTZENDRUBER, resumed.

5 REDIRECT EXAMINATION(Continued)

6 BY MR. SNELL:

7 Q Mr. Swartzendruber, this morning you were

8 testifying, I believe, about the order in which the computer

9 arranges files in a directory. Do you recall that?

10 A Yes.

11 Q And could you tell us -- I'm not talking about

12 just any computer, this computer here -- in what order are

13 files arranged within a given directory? Have you studied

14 that?

15 A Yes. When you first, if you created a directory

16 and you typed ten entries into that directory they're going

17 to go in chronological order. If you erased in the middle

18 of that directory, you added a new entry, what should happen

19 it should select space in the empty space in the directory

20 listing, so now they're not going to be in a chronological

21 order.

22 Q Is there a quick way you can demonstrate that for

23 us?

24 A I'll try to do it as quick as I can. I'll just

25 make a directory called test. I've pushed the test. It's

2939

1 empty. I'll create a few files. I'll call file 1.1. I'll

2 make a test, and -- actually, let me do this. Let me delete

3 this file. It's empty again.

4 What I'll do is I'll create .1 and then put test

5 in it, and then I'll close the file out and that makes a

6 file called file 1 with test in it. I'll make another one,

7 file .2, do the same thing, test, and I'll close it out.

8 Then I've got two files, I'll do two more, file.3. I've got

9 3 and one more. Now I've got four files. They all contain

10 the same word test. That's what's in the first one.

11 Now what I'll do is I'm going to delete file

12 number 2. So I've erased it and now I'll make a new file

13 I'll call it file.X. I'm sorry, I'll call it file 5. And

14 I'll put test, and then I'll chose it out and then I'll run

15 a directory. And you see what happened? It goes file 1,

16 file 5, file 3, file 4. So the empty directory on 3 was

17 filled with the first entry, and if I erased 3 and I created

18 a 6, it will be 1, 5, 6, 4.

19 Q Sir, this morning you were also asked about some

20 files in the MAGIC subdirectory of Windows. Do you recall

21 that?

22 A Yes, I do.

23 Q And let me ask the witness to be shown Shah

24 Exhibit E in evidence.

25 A Yes.

2940

1 Q And was your attention called to certain files on

2 that exhibit. And just so we're all clear on what is being

3 shown you, that's a directory; is that correct?

4 A That's correct.

5 Q Which files were you testifying about this

6 morning on that exhibit?

7 A The ones that were dated on the 18th, January 18,

8 1995, and the ones on January 9, 1995 and --

9 Q I'm sorry.

10 A -- those files were temporary files.

11 Q Now, do you have an opinion as to how those files

12 were created?

13 A I do. My opinion is that they are not regular

14 Windows temporary files created by Windows application.

15 These appear to be almost, well, they are sequential.

16 There's a .5127.10 and a.51268.10. That's just the way the

17 printer came out. That should be a sigma character.

18 They're large files. One is a 5 meg file. The 51267 and

19 the 51268 the 3 meg which means three million bytes. The

20 top one is a 5 million byte file. These appear to be cache

21 files.

22 Q Can you spell the cache?

23 A C-A-C-H-E.

24 Q What is a cache file?

25 A Well, what happens is sometimes is that you can

2941

1 have a memory cache file where it uses that file temporary

2 to buffer out some of the contents of a file or something in

3 memory.

4 Q I'm sorry. Could you explain what you mean by

5 buffer out?

6 A Sometimes what happens when you bring things into

7 memory, memory needs some place to temporarily store it, so

8 it stores it in a file like this and brings it back. I'm

9 not saying that's exactly what happened here. I checked

10 this file and it indicated the word cache inside the file

11 and then I saw some empty bytes after that. And I, my best

12 estimation if I just looked at the file as I did and seeing

13 that it's sequential, it's an application-specific file that

14 was caused by whatever application uses those type of

15 temporary files, not Windows itself. And something large

16 was brought in like possibly one of the TIF files.

17 Q Just so we're clear, what do you mean by a TIF

18 file?

19 A I believe that's a tag image file, and that, a

20 TIF file is a scanned image file, a picture file.

21 Q Now, this morning you also were asked about a

22 file in the WINFAX directory called phone.PBK. Do you

23 recall that?

24 A I do.

25 Q Could you find that for us?

2942

1 A I can. Do you want it in the directory?

2 Q Yes, please.

3 A I'll get into the Program Manager. In Program

4 Manager I'll go to WINFAX directory.

5 MR. KULCSAR: Your Honor, could you ask the

6 witness to speak a little more into the microphone, please?

7 THE WITNESS: I'm sorry.

8 A I'm in the WINFAX directory, and what I have to

9 do is go to data and you'll see the REG.DATA, 369 bytes and

10 it's either created or modified 3/18/95 at 10:22.

11 Q Can you call that file up for us?

12 A Yes, I can. When you enter WINFAX, that's the

13 file that will first come up. It's a registration and what

14 you do is you're supposed to click on to register and it

15 will register via modem.

16 Q What do you mean by register via modem?

17 A A lot of applications are doing this now. You

18 have an option to go ahead and click the modem, so you can

19 do an on line registration, so it will send your

20 registration information directly to the company. You don't

21 have to send in a form or coupon.

22 Q Can you do that here now?

23 A I can. Click register and what's going to happen

24 since we don't have communications device.

25 Q What happens to the file time-date stamp when you

2943

1 click on register as you just did?

2 A What it did is it updated the file to 7/25/96 at

3 2:14.

4 Q Could you go back to the phone.PBK file, please.

5 There appear to be three entries in the box that's titled

6 records. Do you see that?

7 A I do.

8 Q Could you show us what is in those three files,

9 if that's what they are?

10 A Well, there's three buttons. There is an add

11 which means add another name, or delete another name, or

12 edit, so I can edit. I'm sorry. I pushed the button for

13 edit. And I get a fax number for the name and the fax

14 number is 784348. And then I'll go, Okay. And the next one

15 is a fax number of *33 *7784 *0602#, and then the last one

16 is 029220208.

17 Q Now, you were also asked I believe this morning

18 about a file called FAXX001.FXS. Do you remember that?

19 A Yes, I do.

20 Q Could you find that for us.

21 A It comes in the default directory. It's right

22 here, FAXX001.FX. I'll activate it. What happens is the

23 image is upside down. What I can do is I can view it full

24 page and then I'll cause it to rotate if I can find it.

25 Rotate 180 degrees. And then I'll make it a little larger.

2944

1 Q Now, directing you attention to the upper

2 right-hand corner of the document, can you see what's

3 written there?

4 A I can.

5 Q Could you just read that for us, please?

6 A Well, it looks like the other faxes I've seen.

7 I'm not sure the significance of the 14. It's probably page

8 1, September 2, '94 and 13:35, which is 1:35 p.m.

9 Q Is there any other information in the computer

10 with respect to this document that you're aware of?

11 A I'm not sure if there is or not.

12 Q Do you know whether or not this document was

13 actually sent using this computer?

14 DEFENDANT YOUSEF: Objection, your Honor.

15 THE COURT: No, I'll permit it.

16 A If this program was operating properly it

17 indicated only one fax was sent, and this wasn't the same

18 date.

19 Q Could you show us that, please?

20 THE COURT: Have you looked at the fax that was

21 sent?

22 THE WITNESS: I just went by the date, your

23 Honor.

24 THE COURT: Answer the question. Have you looked

25 at the document which was supposedly sent?

2945

1 THE WITNESS: I have, but I can't recall what it

2 is now.

3 Q Would you show us, please, the document that was

4 sent.

5 THE COURT: Would it shock you to find out it was

6 Microsoft Windows, something that comes in the box, isn't

7 it?

8 A It looks like this was, yes, scanned in more

9 information about Microsoft Windows, 3.1. It looks like

10 somebody scanned in the, some basic information about

11 Windows.

12 THE COURT: That's the only fax according to this

13 machine that was sent by the modem which is stuck into the

14 side of the Toshiba machine; is that correct?

15 THE WITNESS: Yes, your Honor.

16 THE COURT: That nothing else was sent?

17 Everything else ended in an error?

18 THE WITNESS: Correct, your Honor.

19 THE COURT: Next?

20 Q Going back to the document that had the small

21 printing at the top of the page which I think is

22 FAXX001.XXS, sir, do you have an opinion as to how that

23 printing got there at the top of the page?

24 A My best estimation of this is that somebody tried

25 to send it. FXS file was truly a sent file then. That

2946

1 means that somebody probably tried to send it, and maybe it

2 resulted in an error, one of the error messages.

3 DEFENDANT YOUSEF: Objection, your Honor.

4 THE COURT: Yes. Maybe it did, but it shows up

5 as not being sent, am I correct?

6 THE WITNESS: Oh, yes, your Honor.

7 THE COURT: So, in other words it's all in the

8 machine and it went no place?

9 THE WITNESS: That's right, yes, your Honor.

10 THE COURT: Okay.

11 Q Finally, Mr. Swartzendruber, you were asked a

12 number of questions about the possibility of changing files

13 dated after January 6, 1995, that are now in the computer;

14 is that right?

15 A Yes, I was.

16 Q Do you have an opinion as to whether there is any

17 evidence as to how those changes happened?

18 A It could have happened --

19 DEFENDANT YOUSEF: Objection to the form, your

20 Honor.

21 THE COURT: It's terrible form, but I think I

22 know what he's driving at. Go ahead.

23 A It could have happened in a variety of ways, and

24 there could have been a machine problem, a memory problem

25 that caused the machine to do something, that caused the

2947

1 application to close abruptly which causes other files to

2 change the system dates. It could be if the systems were,

3 they were modified somehow, somebody got in and changed the

4 files. It could be that somebody saved after they observed

5 the file, just as a mere act of saving.

6 THE COURT: It could be there is an improper key

7 stroke?

8 THE WITNESS: Improper key stroke is another way.

9 THE COURT: It could be pulling the plug out? It

10 could be an electrical short? It could be anything, right?

11 THE WITNESS: Yes, your Honor.

12 THE COURT: Good. Next question.

13 MR. SNELL: Nothing further, your Honor.

14 THE COURT: Anybody else?

15 DEFENDANT YOUSEF: I have one question, your

16 Honor.

17 THE COURT: Go ahead, ask it.

18 RECROSS-EXAMINATION

19 BY DEFENDANT YOUSEF:

20 Q Sir, you just testified now that the dates were

21 changed because there could have been a fault in the system

22 or anything else, am I correct, sir?

23 A The system dates can change because of -- what

24 I'm saying is that it can update, the system clock can

25 update a file because of that, yes. That is a possibility.

2948

1 Q Now, is there any way to prove that they were not

2 deliberately changed?

3 A Is there a way to prove that files were -- well,

4 let me explain, that is a very difficult question to answer,

5 because when I'm given this computer and I look at these

6 files I'm not given the additional information that I need

7 to corroborate whether or not those files are indeed, have

8 been tampered with. I look at this and what I need to

9 validate these files on these image files is I need, I need

10 evidence that was gathered at the scene. I need to talk to

11 witnesses. I need to review evidentiary matter at the time

12 that this was taken to place it against the computer to see

13 if those times and dates have been changed. It's a mammoth

14 task.

15 THE COURT: From what you have you can't say

16 whether it's been changed or not, right?

17 THE WITNESS: The only thing I can say about

18 this, your Honor, is that what it would take to go in an

19 individual file it would be very, very difficult for me to

20 tell you just by looking at this. The totality of it is so

21 complex what somebody can do, the things that it would take

22 to change the footprint of this in a short period of time.

23 I had problems with the program yesterday and I consider

24 myself fairly computer literate. When I see what it takes

25 to work that program and to have somebody go in and change

2949

1 the configuration so you write into the slack area, which a

2 lot of computer people don't even know about, to change the

3 dates, to change the corresponding temporary file, it's a

4 task that approaches a highly improbable area. I'm not

5 saying it can't be done. I'm just saying it's very, very

6 improbable.

7 Q Sir, is there any physical evidence as how these

8 changes were made?

9 A You mean whether was it was saved, created or

10 modified?

11 Q Yes, sir.

12 A Only the files themselves and the date stamp

13 which indicates one of those possibilities.

14 THE COURT: Okay.

15 Q Am I correct that in point of fact that you're

16 not expert in this area to tell the exact reason for which

17 these dates were assigned to these files?

18 A Dates or times of files because there is a system

19 clock. When you create, modify, which can be a save, a file

20 what's supposed to happen is that the file is updated per

21 the system clock to whatever date that system clock is at.

22 Q But the specific reason of why they were

23 assigned, whether there was a fault, or there were

24 deliberately assigned by the user?

25 A When I say fault, too, what I'm talking about

2950

1 it's not particularly the file, but any, any additional

2 files like temporary files, things like that which may

3 create modifications and changes that normally wouldn't be

4 there when I say there are system errors and memory errors

5 and things like that.

6 Specifically what went in and caused these dates

7 to be modified, there's a lot of variables, and, no, I don't

8 have any supportive document that would show me one way are

9 the other in the machine itself. It's independently I'd

10 have to collect that at the scene to verify the information

11 that's contained within those files.

12 Q Now, the Government Exhibit, sir, which you

13 testified earlier about, 777, and other Government Exhibits

14 which were allegedly created in September and November,

15 1994, can you say the same thing about them? Is it possible

16 that they were created in January and there was a fault

17 which caused them to appear as if they were created in

18 September or November of 1994?

19 A No, you're misunderstanding me. When I say that

20 a problem occurred like you pull a plug, what it's going to

21 do is it's going to give the system date that you were in

22 the machine. I'm not saying that when the machine hiccups

23 for some reason what it's going to do is cause an arbitrary

24 date to be entered. That's far beyond the scope of what I'm

25 saying.

2951

1 What I'm saying is if you're in the machine and

2 something happens that's unusual, the current date and time

3 stamp usually on some of these applications may appear, and

4 may form an application like the Write does, like write

5 temporary files, and other application-specific documents

6 may do the same thing.

7 DEFENDANT YOUSEF: I have no further questions,

8 your Honor.

9 MS. BARRETT: No.

10 MR. GREENFIELD: A few minutes, your Honor.

11 RECROSS-EXAMINATION

12 BY MR. GREENFIELD:

13 Q With respect to the opinions you've been

14 rendering here you've been qualified once in the past as an

15 expert with respect to computers; is that correct?

16 A Regarding on-line systems, and illegal pirating

17 of BBSs, yes.

18 Q That was a case in Canada?

19 A Yes, it was in Vancouver.

20 Q Do you recall the name of that case?

21 A I can't off the top of my head, no.

22 Q Do you recall the Court that it was in?

23 A It was I believe a Provincial Court in Canada.

24 It was a federal court.

25 Q And do you recall the charges that the individual

2952

1 you testified against was charged with?

2 A That it was copyright violation.

3 Q And basically -- was it, by the way, the case of

4 Regina v. Lee Thomas Adams?

5 A I can't recall.

6 Q September 20, 1995?

7 A Could be.

8 Q Was the prosecutor for the Crown a fellow by the

9 name of Stokes?

10 A Yes.

11 Q And Cochran was the defense attorney?

12 A I believe so.

13 Q And basically what you testified to is that it

14 was a limited application of copyright infringement?

15 A Yes, it was about copyright infringement. Yes.

16 Q Those were the charges that were brought against

17 Mr. Adams?

18 A There were a few different charges. I'm not

19 quite sure.

20 Q And basically the copyright infringement is a

21 knock-off of a registered trademark for Microsoft, isn't

22 that right?

23 THE COURT: No, no.

24 Q What is a copyright infringement?

25 THE COURT: Don't switch from copyright to

2953

1 trademark.

2 Q Is a copyright infringement case basically a

3 knock-off of something that's been copyrighted by Microsoft?

4 A You can say that, yes.

5 Q Like somebody selling Levi Jeans without being

6 made by Levi himself?

7 MR. SNELL: Objection.

8 THE COURT: No, no.

9 MR. GREENFIELD: I'll use your expertise.

10 THE COURT: No. Somebody is printing a book that

11 is published by somebody else and selling that. That's a

12 knock-off, right? It's a copyright, complete copy, am I

13 correct?

14 THE WITNESS: Complete copy.

15 Q Now, sir, you graduated from what school is that?

16 A University --

17 MR. SNELL: Objection.

18 THE COURT: This is way outside.

19 MR. GREENFIELD: As to the opinion, your Honor,

20 just for that purpose.

21 THE COURT: No. That's way outside.

22 Q Do you hold any degree in math, computer science?

23 THE COURT: No, no, no. This is recross. Come

24 on. Do you have anything to do with what was asked in

25 redirect?

2954

1 MR. GREENFIELD: Just one second.

2 Q You were asked a question about changing file

3 dates after January 6, 1995. Do you recall that question on

4 redirect examination?

5 A Yes, sir.

6 Q Well, putting aside changing, what about creating

7 new files after January 6, 1995? Can a file be created and

8 backdated to an October date, say of 1994?

9 A Yes, it can.

10 Q And there's no way to ascertain that it was,

11 isn't that correct?

12 A Not looking at the file directory.

13 MR. GREENFIELD: Thank you, your Honor.

14 THE COURT: Now, the drive as it exists now with

15 all the changes in it has to be marked as an exhibit and

16 then we have to have the drive as it existed at the

17 beginning marked as an exhibit.

18 I have no idea of who is in charge of producing

19 it, but somebody better be, and I've got to tell you,

20 Mr. Swartzendruber, if it's any of these guys, you'd better

21 help them. All right, sir. Step down.

22 THE WITNESS: Thank you, your Honor.

23 THE COURT: You want to take your machine? I

24 don't know what you need to make a copy of that.

25 THE WITNESS: The hard drive, I'll just take it

2955

1 out real quick.

2 THE COURT: Can you take it out? Okay, fine, if

3 you can do it, go ahead. Ladies and gentlemen, I know that

4 it's wonderful how people can stand outside of a

5 construction site and watch people build things. I've done

6 it many times myself, but really it's not going to help. It

7 never did when I stood and looked at the construction site

8 to make sure. So why don't we let the witness withdraw

9 whatever he's got to withdraw, and we'll step outside and

10 take a break.

11 THE WITNESS: Thank you, your Honor.

12 THE COURT: It's done that fast? Well, I'll be.

13 Okay. Do we have a witness coming in here who does not

14 require all of the technical stuff hanging around?

15 (Witness excused)

16 MR. GARCIA: That's correct, your Honor.

17 THE COURT: I know the many of the jury like it

18 better this way, they can't see me, I can't see them, so why

19 don't we take it apart a little bit.

20 Ladies and gentlemen, please, anyway, just step

21 outside.

22 (Jury not present)

23 (Continued on next page)

24

25

2956

1 THE COURT: There is an application also? I have

2 no clue as to what the application is.

3 MR. GREENFIELD: Your Honor, with respect to the

4 witness that's coming on the stand, your Honor, there a

5 dispute as to what evidence should or shouldn't be allowed

6 in through this witness as to seized materials from the

7 apartment where my client was living in January, 1995. I

8 think it may take sometime to go into those.

9 MR. GARCIA: Your Honor, I think we can present

10 the disputed items with respect to the witness whose about

11 to testify this afternoon, and if you'd like I'll read the

12 Government Exhibit identification numbers and pass them up.

13 THE COURT: Is there 3500 material for this guy?

14 MR. GARCIA: Yes, it's been passed out, your

15 Honor, but it's only a videotape.

16 MR. GREENFIELD: Which is not going into

17 evidence.

18 THE COURT: That's it?

19 MR. GARCIA: That's it.

20 THE COURT: What is going to be produced this

21 fellow says he found?

22 MR. GARCIA: Your Honor, the following items, and

23 I'll read the Government Exhibit for identification number.

24 429 which is a small bottle of mercury metal; 427, a

25 precision screwdriver set; 432A and B, which are two

2957

1 springs; 435, which is a small timer; 433, which is a pin.

2 It's a, I think it's a firing pin that's been shaved down;

3 and 428 which is a fuse.

4 For the record, there is no dispute as to the

5 backing on this. Only the item itself, your Honor.

6 THE COURT: Backing?

7 MR. GARCIA: These are the items --

8 THE COURT: What does the backing have to do with

9 it?

10 MR. GARCIA: The backing was placed on here I

11 believe by PNP law enforcement. I asked Mr. Greenfield if

12 he wanted it on.

13 MR. GREENFIELD: I am going to object to the

14 exhibit itself.

15 THE COURT: Let me see the exhibits.

16 MR. GREENFIELD: Your Honor, these are the

17 disputed items that will be offered through this witness.

18 There are other items as well for the record that are not

19 being contested at this time. There are other items that I

20 am contesting that I'm told won't be going in through this

21 witness.

22 MR. GARCIA: That's correct.

23 MR. GREENFIELD: Certain documentary evidence.

24 But when that happens, I would like to see the documentary

25 evidence before it's offered so I can make --

2958

1 MR. GARCIA: Your Honor, Mr. Greenfield has seen

2 all of the items.

3 MR. GREENFIELD: I understand that. As it's

4 being offered I want to see each piece so inadvertently it

5 doesn't go in. That's all I'm saying.

6 THE COURT: Sure, absolutely.

7 MR. GREENFIELD: I clearly acknowledge you showed

8 me all the evidence yesterday.

9 THE COURT: Yes, okay. Now, what's your

10 objection to these things?

11 MR. GREENFIELD: Your Honor, this is, as I

12 understand the charges here are a particular conspiracy with

13 respect to blowing certain planes up over the Pacific Ocean

14 by a certain means. If the Court would look at the other

15 documentary evidence that will be offered through another

16 witness you will see -- obviously not attaching the

17 significance to it the government wants to attach to this --

18 it relates to possibly noncharged criminal conduct.

19 It may in fact relate to their theory about the

20 Pope. And there are certain documents that may -- I

21 shouldn't say corroborate that -- but could be read as going

22 toward that area. In view of that tape that was played the

23 other day, which I objected to, there is something in there

24 about digging ditches and planting bombs.

25 I think that the Court should find that these

2959

1 implements here might be read to be possible implements to

2 cause such things to occur, but it has nothing whatsoever to

3 do with the charge of conspiracy, and to let it in at this

4 time would only buttress what I've been objecting to as only

5 being offered for a very limited purpose to explain the PNP

6 conduct, would so violate the intent of Rule 403 of absolute

7 prejudice totally outweighing the probative nature of what

8 the government is intending to prove here, that I would

9 object to it.

10 I respectfully suggest that the Court look at the

11 documentary evidence also to more clearly see what my

12 objections are. Like that fuse, and, I understand the

13 mercury, that's something that may have to do with a land

14 device. That has nothing to do with the plan with respect

15 to airplanes.

16 THE COURT: What do these springs have to do?

17 MR. GARCIA: Your Honor, if I might, I'll go

18 through each item. The small timer is a modifying timing

19 device much like the Casio watches we've already seen in

20 evidence.

21 THE COURT: You say this is modified?

22 MR. GARCIA: Your Honor, if you look at the side

23 just looking at it you can see the wires coming out of it.

24 There is a lab report on that item, photographs --

25 THE COURT: Wait, wait, wait. You're telling me

2960

1 to look at the side of this and see wires coming out of it.

2 MR. GARCIA: The item itself has been cut, your

3 Honor, and although the wires are very short, I believe you

4 can see them through the side.

5 THE COURT: Maybe. You have a lab report which

6 says this is modified?

7 MR. GARCIA: Yes, we do, your Honor, as well as

8 photographs of the item with the back taken off showing

9 modifications which was made available to Mr. Greenfield a

10 long time ago.

11 THE COURT: Okay. That I understand.

12 MR. GARCIA: The precision screwdriver set

13 clearly could be used to make those timers, and in fact I

14 believe some precision tools were entered into evidence in

15 the search of room 603. The mercury bottle -- mercury as I

16 understand is a component of mercury fulminate which is a

17 detonator material and mercury fulminate was also found

18 inside apartment 603, and it could be used in any of the

19 improvised explosive devices.

20 THE COURT: Do you have the fulminate to go with

21 mercury fulminate.

22 MR. GARCIA: I don't know exactly what fulminate

23 is, your Honor. I have a list of chemicals that were seized

24 from apartment 603 which includes mercury fuse.

25 THE COURT: That's one thing. But here you have

2961

1 a bottle of mercury, from what I gather, found by itself.

2 I'm unimpressed with that. Now, we have these springs, 432A

3 and B.

4 MR. GARCIA: Your Honor, the springs, 432A and B,

5 the firing pin which is 433 --

6 THE COURT: Why do you call it a firing pin?

7 What kind of device was it attached to when it was a firing

8 pin?

9 MR. GARCIA: I don't know, your Honor.

10 THE COURT: You don't know.

11 MR. GARCIA: No, I don't.

12 THE COURT: I don't either. Was it a firing pin

13 from a 155 Howitzer?

14 MR. GARCIA: Your Honor, in the material that

15 Mr. Greenfield is speaking about, specifically a translation

16 of a document seized from Mr. Shah, there is a discussion of

17 the creation of improvised explosive devices which includes

18 springs and firing pins, and I have a copy of that

19 translation which also includes mercury fulminate as a main

20 charge -- I'm sorry -- as an initiator detonating material

21 and I can pass that up to the Court.

22 THE COURT: How big is this? I'm talking about

23 the entire report.

24 MR. GARCIA: The entire translation, your Honor,

25 is 19 pages, but not all of it deals with what we're talking

2962

1 about here.

2 MR. GREENFIELD: I think the Court should also

3 look at the Arabic document that goes along with it, because

4 there are certain diagrams which I think indicate what they

5 are making is not related to airplanes at all. I'm not by

6 this argument acknowledging that this is stuff that my

7 client had. I'm just saying it applies to the prejudice

8 that attaches to it.

9 THE COURT: This word-to-word translation, where

10 is the word-to-word translation?

11 MR. GARCIA: Your Honor, that's 431 for

12 identification.

13 THE COURT: This translation.

14 MR. GARCIA: Is part of that translation that you

15 have in your hand.

16 THE COURT: I have it. I have page 1. It has at

17 the top, quantity and price. It has something which is UI

18 indicating unintelligible, quantity 3, price 1620. Then it

19 has shortening, rice, peas, chick peas, mushrooms, salt,

20 sugar, juices, flour, onions, potatoes, maggi -- whoever

21 maggi is.

22 MR. KULCSAR: That's a seasoning.

23 THE COURT: Tide, laundry detergent,

24 unintelligible, unintelligible, chicken, tomatoes, carrots,

25 cucumbers, vinegar, black pepper and lentils. That's page

2963

1 1.

2 Page 2, apparently -- oh, no. No. Something's

3 wrong. I go to page 2 on the document you guys gave me

4 which allegedly is translated apparently on page 2 of this

5 translation. The entire translation reads: The main charge

6 should be composed of powerful material like gelatin or

7 other types of dynamite. The Arabic that I have covers a

8 page --

9 MR. GARCIA: Your Honor, perhaps if I can --

10 THE COURT: Something is wrong.

11 MR. GARCIA: Perhaps if I hand up the original.

12 I believe, your Honor, if you look on the back of one of

13 your pages behind that shopping list that you read earlier

14 you'll see a small paragraph on the original document that

15 you have. I think it starts the other way, Judge. I think

16 is the first page.

17 THE COURT: It starts the other way?

18 MR. GARCIA: There are some blank pages and I

19 believe a short paragraph of writing after several blank

20 pages.

21 THE COURT: Maybe what happened was it was

22 photostated together as if they were doing a Semetic

23 writing. Sure, the document which you give me, 431, for

24 identification, this --

25 MR. GARCIA: The photocopy, your Honor?

2964

1 THE COURT: -- the photocopy is put together as

2 if it were, I guess appropriately, a Semetic writing. Thus

3 it runs right to left and so on and so forth. I assume that

4 Arabic is much the same as Hebrew. I can't read Arabic, but

5 I can read a little Hebrew.

6 All right, I'll have to go through this and

7 figure out what the blazes is what. I'll take a look at it.

8 MR. GREENFIELD: Judge, there may be one more

9 document. We'll send it in.

10 THE COURT: Fine.

11 (Recess)

12 (Continued on next page)

13

14

15

16

17

18

19

20

21

22

23

24

25

2965

1 (Jury not present)

2 THE COURT: This is the unredacted one?

3 MS. GRANT: That is the unredacted copy.

4 THE COURT: Present charges start at Count 12, am

5 I correct?

6 MR. GARCIA: That is correct, your Honor.

7 THE COURT: 12 discusses airplane, aircraft, and

8 charges the defendants with conspiracy to set fire to,

9 damage, destroy, disable and wreck the aircraft.

10 Count 13 discusses aircraft. Count 14, aircraft.

11 Count 15 has to do with aircraft. Count 16 has to do with

12 aircraft. Count 17 has to do with carrying an improvised

13 explosive device during and in relation to the crime charged

14 in Count 12. Count 18 has to do with a reference back to

15 Count 15, which again has to do with aircraft. Count 19 has

16 to do with aircraft. Count 20 is that charge as to the

17 escape, or attempted escape.

18 We have here a document which apparently

19 discusses the manufacture of a device described as a B1

20 pressure mine. The B1 pressure mine discussed here is not

21 something which would, that I can see, have anything

22 whatsoever to do with air pressure. It is a spring and

23 needle, and various things connected there.

24 Is it the government's theory that they were

25 going to plant a pressure mine in a runway or the tarmac

2966

1 someplace so that it could blow the wheel off an airplane?

2 MR. GARCIA: No, your Honor, it is not.

3 THE COURT: I am not suggesting that this may not

4 go towards a conspiracy to kill the Pope or somebody else.

5 But exactly how do we get this pressure mine, not barometric

6 pressure -- pressure pressure -- involved in something which

7 has to do with airplanes?

8 MR. GARCIA: Your Honor is correct, and also, to

9 be clear, the government is not offering it to show that

10 Mr. Shah was involved in a plot to assassinate the Pope.

11 The government's theory is that Mr. Shah was a participant

12 in a plot to construct bombs and carry those bombs onto

13 airplanes.

14 The material along with this book is being

15 offered to show that Mr. Shah himself possessed bomb-making

16 material and knowledge to use it. In the book, Government's

17 Exhibit 431, I believe, but in the translation states I

18 obtained, I obtained. It is all in the first person. This

19 book was found on the defendant Shah. I would imagine that

20 part of the defendant's case will be that if this material

21 was found on him he didn't have any idea what it was. But

22 he also has a bomb-making manual speaking in the first

23 person and discussing the construction of bombs.

24 In addition to the spring mine, it does discuss

25 as initiator the compound lead azide -- mercury fulminate --

2967

1 I am sorry -- and mercury was found on him.

2 THE COURT: The mercury, that is a different

3 base.

4 MR. GARCIA: Government's Exhibit 429.

5 THE COURT: That can be used in any kind of bomb.

6 In fact, in the computer list of things necessary, which

7 apparently you guys contend was connected to the airline

8 bombing, they talk about the need for mercury. That I can

9 understand. That I can see. Normal people do not have

10 mercury floating around. Last time I checked, mercury was

11 used in making hats, thermometers, things like that. To

12 reduce mercury to mercury fulminate, according to that

13 chemical dictionary I got, seems like a relatively simple

14 way of doing it, simple process. OK, that I can understand.

15 The pressure bomb, no, I can't see it.

16 Somehow or another, you have offered me a

17 translation which you have clipped together -- I am not

18 yelling at you for clipping it together. I assume somebody

19 had to do it. It appears to be a collection of different

20 documents.

21 MR. GARCIA: Yes, your Honor. I apologize for

22 the condition of the translation.

23 THE COURT: I am not pointing at you about the

24 translation, but it is clear that it has to do with a lot

25 more than 431. Am I correct?

2968

1 MR. GARCIA: That is correct, your Honor, the

2 first 12 pages.

3 THE COURT: It has a letter to someone, God knows

4 who, starting off with the exordium and going on, which is a

5 normal way for a letter to start, I gather, among Arab

6 people. That is at page 15.

7 MR. GREENFIELD: The translation page?

8 THE COURT: Translation page 15, which is marked

9 number 76, page 15, 16 of 19.

10 MR. GARCIA: The government is not offering that

11 document, your Honor.

12 THE COURT: You are not offering that document?

13 MR. GARCIA: Not page 15, your Honor.

14 THE COURT: Page 14, which discusses a compass,

15 and from what I gather has to do with someone showing off --

16 MR. GARCIA: No, your Honor, not that document.

17 THE COURT: Pages 17 of your translation, which

18 appears to be page 18 and 19 of 19, looks like something

19 which has to do with the second page of your Exhibit 430.

20 MR. GARCIA: That is correct, your Honor.

21 THE COURT: Or maybe the first and second page,

22 having to do with building a timing device from a Casio.

23 MR. GARCIA: That is correct.

24 THE COURT: That I can understand, fine. But the

25 rest of it, no, you don't get it in.

2969

1 Look, I want you to understand, my job here is to

2 make sure the guys get a fair trial on the charges brought,

3 not on anything else. You don't get in a bunch of other

4 stuff and say look, they are terrible people. They may be

5 terrible people, I don't know. But that is not my job. You

6 don't get in stuff that doesn't belong in.

7 MR. GARCIA: To be clear, your Honor, in terms of

8 the translation, does that also include the mercury

9 fulminate page and the other charges speaking about placing

10 bombs inside a drug capsule or drug container, mercury

11 fulminate? And the main charge section on gelatin, the

12 first three pages of the translation, the government would

13 submit --

14 THE COURT: The first three pages of the

15 translation, the ones having to do with the shopping list --

16 MR. GARCIA: No, I am sorry, your Honor. My

17 mistake.

18 THE COURT: -- main charge and detonating

19 material, it is preferable to have lead azide or mercury

20 fulminate in relatively substantial quantities, 15 grams.

21 How much is that bottle? I picked it up before. I am

22 willing to bet it is a heck of a lot more.

23 MR. GARCIA: One hundred grams, your Honor.

24 THE COURT: Hundred grams. That I can see. If

25 the words detonating material -- I will read the entire

2970

1 translation, page 3. "Detonating material. It is

2 preferable to have the lead azide or mercury fulminate in

3 relatively substantial quantities -- 15 grams."

4 Now what? Stuff about a spring attached to a

5 needle and the springs and so on and so forth?

6 MR. GARCIA: No, your Honor. Page 4 of 19 is

7 labeled in the translation.

8 THE COURT: Page 4 of 19?

9 MR. GARCIA: Yes.

10 THE COURT: "For a capsule, we may use a drug

11 container cover, preferably made of plastic. It should be

12 large, a diameter of 5 centimeters." Then it has a drawing

13 of an empty container which has the shape of a cylinder.

14 Let me back up. This Arabic document, which is

15 431, when I got it it seemed to be a bunch of separate pages

16 written on -- did it come together? Was it at one point

17 stapled sewn or something like that, or do you know?

18 MR. GARCIA: Correct, your Honor. It appears to

19 be almost a homemade pad.

20 THE COURT: I don't care what it appears to be,

21 but was it separate or stapled together?

22 MR. GARCIA: Always stapled together, your Honor.

23 THE COURT: Always stapled together.

24 MR. GARCIA: It is the document I handed up to

25 the court.

2971

1 THE COURT: All right.

2 MR. GARCIA: It is a pad, your Honor. Stapled

3 in. It has adhesive.

4 THE COURT: All right, it is a pad.

5 All right. The spring, the needle, what you call

6 the firing pin has nothing to do with this case, and the

7 rest of the discussion, I don't see that coming in at all.

8 To show that the guy knew something about bombs and making

9 them and so on and so forth, in the translation which is at

10 the top numbered 76 -- number 76 -- I don't know what the

11 number means -- page 3 of 19 and page 4 of 19, those I can

12 see, the rest of it I can't.

13 Do you want to talk to your witness and tell him

14 that that is what is coming in and the rest of it is not?

15 MR. GARCIA: Your Honor, just to be clear, this

16 document and the translation obviously coming in later, the

17 document itself is not coming in through this witness. It

18 is the next witness, I believe, or the witness after.

19 THE COURT: I don't care who it is. Fine. Those

20 pages come in.

21 MR. GARCIA: The springs --

22 THE COURT: The springs look like a back door,

23 you know, spring for a screen door.

24 MR. GARCIA: Your Honor, the springs and the pin

25 were to be shown to this witness. I will just remove hem

2972

1 them from the exhibits that are going to be shown to him.

2 THE COURT: And the fuse, so on and so forth.

3 What else do we have? We have mercury?

4 MR. GREENFIELD: Screwdriver sets.

5 THE COURT: Screwdriver sets, that can come in.

6 The Casio --

7 MR. GARCIA: Timer.

8 THE COURT: Yes, that surely can come in. I

9 think that may be tied in to the picture, or attempted

10 picture on --

11 MR. GREENFIELD: It is the last page.

12 THE COURT: The last page of the translation, but

13 on Exhibit 430, it appears to be that type of timer.

14 MR. GARCIA: Yes, the timer itself is not a

15 Casio, so the record is clear. It is an Omron quartz timer.

16 Your Honor, also so I am clear, page 2 of 19 on

17 the translation and accompanying original, is that in or not

18 in?

19 THE COURT: Where is page 2?

20 MR. GARCIA: Main charge.

21 THE COURT: That shows that he knows about

22 bombing, yes, fine, that is all right. The rest of it no.

23 Those three pages, 2, detonating material on page 3 and

24 capsules on page 4 can The rest of it can't.

25 MR. GREENFIELD: For the record, the pages you

2973

1 are referring to are the translation page numbers?

2 THE COURT: Translation page numbers, yes.

3 As a practical matter, and let's be practical

4 about this, the note pad doesn't have to be ripped apart. I

5 don't care how you do it, but there is no need to rip the

6 note pad apart. We will show it to the witness, have the

7 witness identify it -- is someone doing a handwriting

8 analysis on this?

9 MR. GREENFIELD: May I have a conference with the

10 prosecutors about one thing before I make a statement to the

11 court about that?

12 THE COURT: All right.

13 MR. GREENFIELD: Just two minutes with them.

14 MR. GARCIA: No handwriting analysis by the

15 government.

16 THE COURT: I would hate to be the handwriting

17 examiner.

18 (Pause)

19 MR. GREENFIELD: Your Honor, what the court is

20 suggesting, if I hear the court correctly, we make a xerox

21 copy of this and create a document, of the 2, 3, 4 and the

22 last pages. Is that basically what the court is suggesting?

23 THE COURT: Yes, but I don't want any yelling and

24 screaming from you about --

25 MR. GREENFIELD: Obviously. 2, 3 and 4 will be

2974

1 one document and the last pages are separate. It is a

2 separate document anyhow. I certainly won't make an issue

3 of the fact that it is anything other than three pieces of

4 paper that a copy has been presented to the jury.

5 THE COURT: You can make it three pieces of

6 notebook.

7 MR. GREENFIELD: Notebook, fine. Obviously I

8 object to --

9 THE COURT: You object to the whole thing, yes, I

10 figured that.

11 Where is the next witness?

12 MR. GARCIA: Cesar Camaldo is the next witness,

13 your Honor.

14 THE COURT: Do you want to talk to him to make

15 sure we don't get any spring devices from him?

16 MR. GARCIA: Sure.

17 THE COURT: Yes, go ahead.

18 (Continued on next page)

19

20

21

22

23

24

25

2975

1 (Jury present)

2 CESAR CALMADA,

3 called as a witness by the government,

4 having been duly sworn, testified as follows:

5 MR. SNELL: May I proceed, Judge?

6 THE COURT: Please.

7 (Through the interpreter Chris Masaoay)

8 DIRECT EXAMINATION

9 BY MR. GARCIA:

10 Q Mr. Calmada, who do you work for?

11 A I am a member of the Philippine National Police.

12 Q Are you assigned to any particular command in the

13 Philippine National Police?

14 A I am with the Intelligence Command, sir.

15 Q What is your present rank?

16 A I am a senior police officer 1, sir.

17 Q Officer, how long have you been with the

18 Philippine National Police?

19 A More or less seven years, sir.

20 Q Prior to joining the Philippine National Police,

21 did you serve any time in the Philippine Constabulary?

22 A No, sir, I did not.

23 Q Officer, I would like to direct your attention to

24 the night of January 11, 1995. Were you working on that

25 night?

2976

1 A Yes, sir, I was.

2 Q What was your assignment on January 11, 1995?

3 A Sir, I was a member of an alert team.

4 Q Could you tell us generally, what is an alert

5 team?

6 A Sir, an alert team would be a standby team,

7 members of the PNP office, and they are dispatched should

8 they be needed.

9 Q Who was in charge of your alert team on the night

10 of January 11, 1995?

11 A It was Police Inspector Serrano, sir.

12 Q Was there an assistant team leader that evening?

13 A It was SP04 Edgar Malitao, sir.

14 Q Officer, approximately how many men were on your

15 alert team that evening?

16 A More or less about eight, sir.

17 Q Where was this alert team assembled?

18 A In our offices, sir.

19 Q Would that be at Camp Crame?

20 A Yes, sir, inside the camp.

21 Q Did there come a time on the evening of January

22 11, 1995, that your alert team was sent into the field?

23 A Yes, sir.

24 Q Approximately what time did that happen?

25 A Between 10 and 11 in the evening, sir.

2977

1 Q Where was your team sent?

2 A We were sent to Singalong Street, Malate, Manila.

3 Q Do you recall whether you were sent to any

4 particular address on Singalong Street?

5 A Yes, sir, I remember.

6 Q What was that address?

7 A It was 2010 Singalong Street, Malate, Manila.

8 Q Did there come a time that evening of January 11

9 that you arrived at Singalong Street?

10 A Yes, sir.

11 Q Officer, how did you get to Singalong Street from

12 Camp Crame?

13 A We used our service vehicle, sir.

14 Q What type of vehicle is that?

15 A It's a Toyota Tamaraw Vida van.

16 Q What do you remember happening first when you

17 arrived at Singalong Street?

18 A When we arrived at Singalong Street, our team was

19 divided into two by Inspector Serrano.

20 Q After your team was split into two groups, who

21 was your commander of your group?

22 A I was included in the group headed by SP04

23 Malitao.

24 Q What was your specific assignment in that group?

25 A I was asked to keep a close watch around 2010

2978

1 Singalong Street.

2 Q After you received that assignment, where did you

3 go?

4 A We were on the street across the location of 2010

5 Singalong Street.

6 Q Officer, from that location could you see the

7 address number 2010 on Singalong Street?

8 A Yes, sir.

9 Q Could you describe for us in general terms what

10 number 2010 looked like?

11 A Sir, it is an apartment complex that is two

12 stories and comprised of three units.

13 Q Is it one building or more than one building?

14 A It is one building, sir.

15 Q How many doors could you see?

16 A Three doors, sir.

17 Q After you took your position across from number

18 2010, what do you remember happening next?

19 A Sir, around early morning of the 12th of January

20 1995, I saw that a taxi stopped in front of the location

21 2010 Singalong.

22 Q What did you see next?

23 A I saw a person got out of the taxi, sir.

24 Q What if anything did you see this person do?

25 A She entered that location 2010 Singalong Street.

2979

1 Q What happened to the taxi when the woman entered

2 2010?

3 A He was fully stopped in front of that address and

4 he just was waiting part.

5 Q What did you do after you saw this person exit

6 the cab?

7 A I reported to SP04 Malitao that I saw this person

8 get out of the taxi in front of that location.

9 Q What happened after you made that report?

10 A We quickly followed together with SP04 Malitao

11 the person that entered the location 2010 Singalong Street.

12 Q Did you have a conversation with this person at

13 this time?

14 A Myself, no, sir.

15 Q Did anyone in your group have a conversation with

16 this person at this time?

17 A SP04 Malitao did.

18 Q What were you doing while he had that

19 conversation?

20 A I was talking to the taxidriver, sir.

21 Q After you had your conversation with the

22 taxidriver, what did you do?

23 A I paid the fare that was owed by this person that

24 was riding the taxi.

25 Q What happened next?

2980

1 A I noticed some bags in the back of the taxi, sir.

2 Q What if anything happened to those bags?

3 A After I saw the bags, I reported this to SP04

4 Malitao.

5 Q What did you do after making that report?

6 A SP04 Malitao approached me and he took the bags

7 from the back of the taxi.

8 Q How many bags were there?

9 A Two, sir.

10 Q Could you just describe generally what they

11 looked like?

12 A These are plastic shopping bags.

13 Q Where was the woman who got out of the cab while

14 you did this? Where was the woman who got out of the cab

15 located while you were getting the bags?

16 A She was standing by the driveway of the

17 apartment.

18 Q After you collected the bags, what did you do

19 next?

20 A We asked her if these bags belonged to her.

21 Q What was her response?

22 MR. GREENFIELD: Objection.

23 THE COURT: I gather it makes a difference. Yes,

24 sustained.

25 Q After you had that conversation, without telling

2981

1 us what was said, what did you do next?

2 A After the conversation of what, sir?

3 Q After you had the conversation about the bags,

4 what did you do next?

5 A We collected the bags and took them out of the

6 taxi.

7 Q Where did you go after that?

8 A We entered the location of that apartment that

9 that woman was looking at.

10 Q Could you describe for us where exactly you went?

11 A If you are facing the apartment building, it is

12 the third door on your right.

13 Q And when you say the apartment building, do you

14 mean number 2010?

15 A Yes, sir.

16 Q Could you describe for us what it looked like

17 when you entered the third door on the right of number 2010.

18 A As you entered this location, there is a living

19 room area and there is a stairs that goes in the direction

20 upstairs.

21 Q What happened when you got inside the apartment?

22 A We asked this person for permission if we could

23 look into the contents of the baggages that were taken from

24 the taxi.

25 Q Did you get permission to do that?

2982

1 MR. GREENFIELD: Objection.

2 THE COURT: No, answer it.

3 A Yes, sir.

4 Q What happened next?

5 A Sir, one by one we took out the contents of the

6 bag and one by one we looked at the items that we had taken

7 out of the bag.

8 Q How many bags did you search at this time?

9 A Three, sir.

10 Q You mentioned there were two in the taxi. Where

11 was the other bag from?

12 A The shoulder bag that the woman was carrying,

13 sir.

14 Q After you examined the items in these three bags,

15 what did you do next?

16 A We returned the items to the original bags that

17 they were contained.

18 Q By the way, Officer, when you had this

19 conversation with the woman inside the apartment, did she

20 identify herself in any way?

21 A Yes, sir.

22 Q How did she identify herself?

23 A She introduced herself as Carol Santiago.

24 Q Did anyone else assist you in searching the bags?

25 A Yes, sir.

2983

1 Q Who was that?

2 A SP04 Malitao.

3 MR. GARCIA: Your Honor, at this time if the

4 witness might be shown Government's Exhibits 412A through F,

5 427, 429, 435, and 420A through C.

6 THE WITNESS: Am I going to hold this?

7 Q Officer, if you would, take a look at those items

8 one by one and tell us, using the government exhibit number,

9 if you recognize them.

10 A Government's Exhibit 435, I recognize this, sir.

11 Q Where was the first time you saw that item?

12 A In the plastic bag, sir.

13 Q Was that on the night of January 11, 1995?

14 A In the early morning of January 12, sir.

15 Q Is that item in the same or substantially the

16 same condition it was in when you first saw it?

17 A Yes, sir.

18 Q If you would now pick up the next item. And do

19 the same thing for us.

20 A Government's Exhibit 429, sir.

21 Q Do you recognize that item?

22 A Yes, sir, I do.

23 Q Where did you first see that item?

24 A In the plastic bag, sir.

25 Q Is that item in the same or -- withdrawn.

2984

1 Was that on the early morning of January 12,

2 1995?

3 A That is correct, sir.

4 Q Is that item in the same or substantially the

5 same condition it was in when you first saw it that morning?

6 A Yes, sir.

7 Q If you would take the next item.

8 A Government's Exhibit 427, sir.

9 Q Do you recognize that item?

10 A Yes, sir.

11 Q Where did you first see that?

12 A In the plastic bag, sir.

13 Q Was that also on the morning of January 12?

14 A That is correct, sir.

15 Q Is that item in the same or substantially the

16 same condition it was in when you saw it that morning?

17 A Yes, sir.

18 Q If you would take the next item, sir.

19 A Government's Exhibit 420A.

20 Q Do you also see 420B and C also on the railing in

21 front of you, the other documents?

22 A Yes, sir.

23 Q Do you recognize those items?

24 A Yes, sir.

25 Q Where did you first see 420A, B and C?

2985

1 A I saw this inside the shoulder bag that the woman

2 was carrying, sir.

3 Q Was that also on the morning of January 12, 1995?

4 A That is correct, sir.

5 Q Are Government's Exhibits 420A, B and C in the

6 same or substantially the same condition they were in when

7 you first saw them that morning?

8 A Sir, when I first saw this, there was no

9 discoloration, as is seen here today.

10 Q Other than the discoloration, are they in the

11 same condition?

12 A Yes, sir.

13 Q Finally, I believe the last items there are

14 Government's Exhibit 412A through F for identification.

15 A Yes, I recognize all is this, sir.

16 Q When was the first time you saw Government's

17 Exhibits 412A through F?

18 A In the early morning of January 12, 1995, sir.

19 Q And those items, are they in the same or

20 substantially the same condition they were in at that time?

21 A Some of these were cleaner and they did not have

22 the discoloration that is shown here today.

23 Q Again other than the discoloration, are they in

24 the same condition as they were then?

25 A Yes, sir.

2986

1 MR. GARCIA: Your Honor, at this time the

2 government would offer 412A through F, 427, 429, 435, and

3 420A, B and C.

4 MR. GREENFIELD: I would like to see them, your

5 Honor.

6 THE COURT: Sure.

7 MR. GREENFIELD: Your Honor, consistent with the

8 earlier record, otherwise no objection.

9 THE COURT: OK.

10 (Government's Exhibits 412A through F, 427, 429,

11 435, and 420A through C received in evidence)

12 Q Officer Calmada, after you finished taking these

13 items out of the bags, what did you do next?

14 A Sir, we put these things back into the bag, we

15 set aside the bag, and I was watching the bags and the

16 woman.

17 Q What happened next inside apartment 2010?

18 A Inspector Serrano asked permission if we could do

19 a search of the apartment.

20 Q Was permission given?

21 MR. GREENFIELD: Same objection, your Honor.

22 THE COURT: Same ruling. Go ahead, sir.

23 A She consented to have the apartment inspected,

24 sir.

25 Q When you say she, do you mean Carol Santiago?

2987

1 A Yes, sir.

2 Q Was a search of this apartment done at this time?

3 A Yes, sir.

4 Q Who performed the actual search of the apartment?

5 A If I remember it right, sir, it was SP04 Malitao.

6 Q What did you do while Officer Malitao was

7 performing the search?

8 A Sir, I stayed downstairs and I was watching over

9 the thing that I had collected from the bag, as well as the

10 woman that had the possession of these bags.

11 Q Approximately how long did you do that for?

12 A About 10 to 15 minutes, sir.

13 Q What happened after those 10 to 15 minutes?

14 A Inspector Serrano came down from the upstairs and

15 asked the permission of the woman if she would consent to

16 being invited to our offices.

17 Q What happened after that conversation?

18 A She consented, sir.

19 Q What did you do next?

20 A Sir, I took the plastic bags and we directly went

21 into the van.

22 Q Who had the third bag?

23 A The woman had it, sir.

24 Q Was she with you in the van?

25 A Yes, sir.

2988

1 Q Where did you go at this time?

2 A We went directly to our offices in Camp Crame,

3 sir.

4 Q What happened when you got back to your offices?

5 A Sir, when we arrived there, Inspector Serrano

6 collected the bags that I had with me, and I myself, I

7 escorted Carol Santiago into the officers' lounge.

8 Q Did Miss Santiago still have possession of the

9 shoulder bag at that time?

10 A Yes, sir.

11 Q What happened when you got to the officers'

12 lounge?

13 A After we entered that room, after a few minutes

14 Inspector Serrano came back in with the bags and together

15 with him was Police Inspector Monteagudo.

16 Q Who is Police Inspector Monteagudo?

17 A He is the group commander of our office, sir.

18 Q What happened after Inspector Serrano and the

19 commander Monteagudo arrived?

20 A Police Inspector Monteagudo introduced himself to

21 the woman and asked if we could have the permission to look

22 into the bags once again.

23 Q Did that happen at this time?

24 A Yes, sir.

25 Q What if anything was done with the items from the

2989

1 bags at this time?

2 A We laid it out on the top of the table, sir.

3 Q After they were laid out, what did you do?

4 A Sir, I left and I went to our offices and I went

5 to retrieve our video camera.

6 Q Did you find one?

7 A Yes, sir.

8 Q What did you do after you found the video camera?

9 A Sir, I took a video of the things that were on

10 top of the table.

11 Q Officer, did there come a time in the morning of

12 January 12, 1995, when you returned to Singalong Street?

13 A Yes, sir.

14 Q Approximately what time was that, if you recall?

15 A Around 3 to 4:00 in the morning, sir.

16 Q Was anyone with you when you returned?

17 A Yes, sir.

18 Q Who was that?

19 A Police Captain Arroyo, sir.

20 Q What happened when you returned to Singalong

21 Street this time?

22 A Sir, when we arrived at 2010 Singalong Street,

23 once again I stayed in the van and Police Captain Arroyo

24 proceeded to go inside the apartment.

25 Q What do you remember happening next?

2990

1 A Sir, about three or four minutes later, Captain

2 Arroyo, together with the rest of our team, came out of the

3 apartment.

4 Q Did you see Officer Malitao at this time?

5 A Yes, sir.

6 Q Did you notice whether Officer Malitao was

7 carrying anything?

8 MR. GREENFIELD: Objection, your Honor, leading.

9 THE COURT: I know, but sooner or later it is

10 going to come out. Go ahead.

11 Q What happened after these other members of your

12 team came on to Singalong Street?

13 A Sir, we all boarded our van and we headed back to

14 our offices in Camp Crame.

15 Q What happened when you arrived in Camp Crame?

16 A Sir, when we got there, we proceeded to enter our

17 offices and Captain Arroyo and Mr. Malitao proceeded to go

18 to the offices of our head, Mr. Monteagudo.

19 (Continued on next page)

20

21

22

23

24

25

2991

1 MR. GARCIA: Your Honor, is this a convenient

2 time to break?

3 THE COURT: Yes. I was just going to suggest,

4 this sounds like a good spot to break.

5 Ladies and gentlemen, have a wonderful weekend,

6 please. Be good. Stay away from the media, stuff like

7 that. I will see you all Monday. I trust that all of you

8 got a letter about what happens next Friday -- OK. Go in

9 peace, my friends.

10 (Jury excused)

11 (Witness excused)

12 THE COURT: Did his trip back to Camp Crame end

13 his involvement in this case or does it go on?

14 MR. GARCIA: Very short, your Honor. Only an

15 identification and then the last time he saw the defendant

16 Shah.

17 THE COURT: So it is 10 minutes more?

18 MR. GARCIA: Ten or 15, your Honor, as well as

19 the government would like to pass the items that were

20 introduced.

21 THE COURT: I understand. My guess is we will

22 have a fair amount of cross-examination. I am not sure.

23 But you will have to have more people in here on Monday.

24 MR. GARCIA: We will, your Honor.

25 THE COURT: This is the last long weekend, guys.

2992

1 Have a good one.

2 (Proceedings adjourned until 9:30 a.m., Monday,

3 July 29, 1996)

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2993

1

2 INDEX OF EXAMINATION

3 Witness D X RD RX

4 DAVID SWARTZENDRUBER.............2882 2919 2947

5 CESAR CALMADA.............2975

6 GOVERNMENT EXHIBITS

7 Exhibit No. Received

8 777C ............................................2921

9 412A-F, 427, 429, 435, 420A-C.................. 2986

10 DEFENDANT EXHIBITS

11 Exhibit No. Received

12 Shah D............................................2901

13 Shah E, F ........................................2912

14 Shah G, H and I ..................................2914

15

16

17

18

19

20

21

22

23

24

25

2994

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 29, 1996 9:30 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY

24

25

2995

1

2 (In open court; jury not present)

3 THE COURT: Who do we have this morning? The

4 witness.

5 MR. SNELL: Officer Calmada, your Honor.

6 THE COURT: How much more do you figure on being

7 with him?

8 MR. SNELL: 15 or 20 minutes, your Honor. The

9 government would ask to pass some of the items that have

10 been introduced as well.

11 THE COURT: Okay. Now, question number one was

12 asked this morning, whether to include the Atlanta Olympic

13 incident in the newspapers this morning by the security

14 guard. I elected to say yes because it has absolutely

15 nothing to do, it would be a tremendous reach to suggest

16 that it had anything to do with this case. Nobody, to the

17 best of my knowledge and belief, is thinking any such

18 intention, and I want to make sure that we're not either.

19 Now, I am told -- although I have just now

20 received the transcript -- I am told that some official over

21 the weekend made some comments about this case on Meet the

22 Press. I don't know what they are, but I'll find out.

23 Maybe nothing. Anything else that you guys have.

24 MR. GREENFIELD: Your Honor, the New York Times

25 ran a story on the weekend, front-page story, about Mr.

2996

1 Yousef, an attempt in the past to get somebody to carry a

2 bomb on an airplane.

3 THE COURT: Front page, first section?

4 MR. GREENFIELD: Front page, I'm guessing

5 Saturday's edition.

6 THE COURT: I'll have to get it.

7 MR. GREENFIELD: Obviously the same thing holds,

8 the saturation of information, even if the jury tries to

9 avoid it, they can't. So maybe we're going to be put in the

10 position we have to do all over again what the Court did

11 last week.

12 THE COURT: Yes. All right. Did you get that,

13 Roy?

14 MR. KULCSAR: I have heard about it but I didn't

15 have it.

16 THE COURT: I think they are on-line, one of

17 those retrieval services, we can get it.

18 MR. KULCSAR: Your Honor, there has been an

19 ongoing problem with Mr. Yousef at the MCC, but I can

20 address that at a break if you want to. I don't have to do

21 it now. I just want to let your Honor know there is a

22 matter we're going to have to trouble the Court with. Thank

23 you.

24 THE COURT: I'll make you a copy of the

25 transcript of Meet the Press. I don't think it's that

2997

1 interesting.

2 MR. GREENFIELD: May I ask who the interview was

3 with, your Honor?

4 THE COURT: Jamie Gorelick. It's all about how

5 they prevented terrorist attacks, the only paragraph that

6 would make any sense, but you'll have a copy of it hopefully

7 very shortly. Paul, you want to check on the situation with

8 the jury?

9 (Continued on next page)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2998

1 CESAR CALMADA, resumed, through the interpreter.

2 (Jury present)

3 THE COURT: Good weekend, guys? I hope so. Here

4 we are back again. We're here with, I think just ending,

5 this is Cesar Calmada on the stand.

6 Mr. Garcia, you are doing the interrogation. Go

7 ahead.

8 MR. GARCIA: Thank you, sir.

9 DIRECT EXAMINATION (continued)

10 BY MR. GARCIA:

11 Q. Officer Calmada, do you recall last Thursday you

12 were testifying about returning to Camp Crame after picking

13 up Officer Malitao on Singalong Street, do you recall that?

14 A. Yes, sir.

15 Q. Now, did there come a time after you returned to

16 Camp Crame that you observed members of your command

17 questioning an individual?

18 A. Yes, sir.

19 Q. And where did you see this?

20 A. Inside our security branch office.

21 Q. Could you describe for us the appearance of the

22 person being questioned?

23 A. Sir, he, is medium build. He has black hair. He

24 would have also I believe a medium height, and he is a

25 foreigner.

2999

1 Q. Approximately how long did you see him for on

2 this occasion?

3 A. About four or five minutes, sir.

4 Q. Was this on the morning of January 12th?

5 A. Yes, sir, in the early morning.

6 Q. After the early morning of January 12, 1995, did

7 you ever see this person again?

8 A. Yes, sir.

9 Q. When was the next time you saw this person?

10 A. Around 10 o'clock in the morning of January the

11 12th.

12 Q. For how long did you see him during this

13 occasion?

14 A. All day, sir.

15 Q. After January 12th, did you see this person

16 again?

17 A. Yes, sir.

18 Q. When was the next time you saw him after January

19 12th?

20 A. Sir, I saw him again starting on the 13th until

21 the evening of the 14th.

22 Q. When you saw him on January 13th and January 14th

23 was he alone?

24 A. No, sir.

25 Q. Did you recognize anyone he was with?

3000

1 A. Yes, sir.

2 Q. Who was that?

3 A. The woman, sir, Carol Santiago.

4 Q. On the 13th and the 14th where did you see this

5 person, the man?

6 A. Inside the cell, sir.

7 Q. And where is the cell located?

8 A. It is within our offices adjacent to our office.

9 Q. Is that at Camp Crame?

10 A. Yes, sir.

11 Q. Officer Calmada, looking around the courtroom

12 today do you see this man that you saw inside the cell on

13 January 13th and January 14th?

14 A. Yes, sir.

15 Q. Could you point this individual out for us?

16 A. Yes, sir. (Pointing)

17 Q. Could you describe something the individual is

18 wearing?

19 MR. GREENFIELD: Indicating he's identified my

20 client, your Honor.

21 A. He has a headphone and is wearing eye glasses.

22 THE COURT: Okay.

23 Q. Officer, were you at Camp Crame on the night of

24 January 14, 1995?

25 A. Yes, sir.

3001

1 Q. Did you spend the entire night there that

2 evening?

3 A. Yes, sir.

4 Q. Did there come a time on the night of the 14th or

5 early on January 15th that you were awakened at Camp Crame?

6 A. Yes, sir.

7 Q. Could you tell us what happened?

8 A. On the early morning of January the 15, 1995, I

9 was awakened by some noise that some of my co-workers were

10 making.

11 Q. After you heard this noise, what did you do?

12 A. Sir, I got up and I spoke to some of my company

13 at work.

14 Q. After you had this conversation what did you do

15 next?

16 A. Sir, I hurriedly got up and I went to the cell

17 where this person was supposed to be.

18 Q. When you say, the cell, do you mean the

19 defendant, Wali Khan Amin Shah?

20 A. Yes, sir.

21 Q. What did you do when you got to the cell?

22 A. Sir, when I went down there and I saw that the

23 cell door was open, I hurriedly went up to our group

24 commander and reported the incident.

25 Q. When you say the group commander, who is that?

3002

1 A. Police Major Monteagudo.

2 Q. After you reported to Major Monteagudo, what did

3 you do next?

4 A. Mr. Monteagudo and myself came down from his

5 office and when we got down, myself and the rest of the

6 personnel he instructed that we should go and search.

7 Q. To your knowledge was the Defendant Shah ever

8 located by your search party?

9 A. No, sir.

10 MR. GARCIA: Your Honor, if the witness might be

11 shown Government Exhibits 421A and B and 422A through G for

12 identification.

13 Q. Officer Calmada, will you take a look at those

14 exhibits and tell us whether or not you recognize them?

15 A. Yes, sir, I recognize these people.

16 Q. Where was the first time you saw the actual

17 photos themselves?

18 A. In the shoulder bag of that woman, Carol

19 Santiago.

20 Q. Was that on the night of January 11, 1995?

21 A. That would be the early morning of January the

22 12th, 1995, sir.

23 Q. Are those items, Government Exhibits 421A, B and

24 422A through G, in the same or substantially the same

25 condition they were in when you first saw them the early

3003

1 morning hours of January 12?

2 A. Yes, sir, they're in the very same condition.

3 MR. GARCIA: Your Honor, the government would

4 offer 421A and B and 422A through G.

5 MR. GREENFIELD: May I have a quick look at them,

6 your Honor. No objection.

7 (Government's Exhibits 421A and B and 422A

8 through G received in evidence)

9 Q. Officer Calmada, if you would direct your

10 attention to 421A and B, which I believe is the top item on

11 the railing in front of you. Do you recognize any of the

12 individuals in those photographs?

13 A. Yes, sir.

14 Q. Who do you recognize?

15 A. The woman is Carol Santiago and the gentleman is

16 Wali Shah.

17 Q. So we're clear, do those individuals appear in

18 both photos, 421A and B?

19 A. Yes, sir.

20 Q. Officer Calmada, did the United States government

21 pay for your travel and hotel expenses for you to testify in

22 court here in the United States?

23 A. Yes, sir, that is what I know.

24 Q. Are you also being paid a standard witness fee

25 and meal allowance while you're in the United States for

3004

1 this case?

2 A. That is my understanding, sir.

3 Q. Is it your understanding that the United States

4 government will pay your salary while you're away from work

5 because of being here?

6 A. Yes, sir.

7 MR. GARCIA: Your Honor, I have nothing further

8 for this witness, but would request to pass the items that

9 were entered in evidence through the witness. For the

10 record, your Honor those are Government Exhibits 412A

11 through F, 427, 429, 435, 420A through C, 421A and B, and

12 422A through G.

13 (Government's Exhibits as indicated passed to the

14 jury)

15 (Pause)

16 THE COURT: Questions, Mr. Yousef?

17 DEFENDANT YOUSEF: No questions.

18 THE COURT: No questions. Questions?

19 CROSS-EXAMINATION

20 BY MR. GREENFIELD:

21 Q. Sir, in the year 1995, were you ever interviewed

22 by agents of the Federal Bureau of Investigation in the

23 Philippines with respect to this case?

24 A. Yes, sir.

25 Q. When and where?

3005

1 A. I don't remember the date, sir, but I spoke to

2 them in our offices.

3 Q. Was it in the summer time, was it the end of

4 1995? When was it?

5 A. I believe it was in the summer time around March

6 or April.

7 Q. And do you recall who it is that you spoke to?

8 A. One of them introduced himself as Frank

9 Pellegrino.

10 Q. Were you alone or were other PNP officials with

11 you when you spoke to Frank Pellegrino?

12 A. Just by myself, sir.

13 Q. And was he taking notes?

14 A. No, sir.

15 Q. Now, sir, is that the only time were you

16 interviewed by an FBI official in the year 1995?

17 A. Yes, sir.

18 Q. And is the next time anyone speaks to you about

19 this case when you come to the United States in 1996?

20 A. Yes, sir, after we arrived here in the United

21 States.

22 Q. When you say "we arrived," who arrived with you?

23 A. SPO4 Malitao and Chief Inspector Paul Monteagudo.

24 Q. Sir, with respect to what you've testified about

25 on direct examination did you prepare a report as to the

3006

1 incident of January 11, 1995?

2 A. No, sir, I did not.

3 Q. And with respect to what allegedly happened on

4 January 14th or 15th of 1995, did you prepare a report with

5 respect to that?

6 A. No, sir, I did not.

7 Q. You've been a Philippine National Police Officer

8 for seven or so years; is that right?

9 A. That is correct, sir.

10 Q. And one of the things you're taught when you

11 become a police officer is to make reports with respect to

12 any incident that occurs during the course of your tour of

13 duty. Is that not correct?

14 A. Yes, sir.

15 Q. So as to make a chronological report with respect

16 to what occurs, correct?

17 A. Yes, sir.

18 Q. Yet you chose not to make a report with respect

19 to any of the incidents that you testified to on direct

20 examination?

21 A. Sir, I did not make a report because I was not

22 the person on duty at that time.

23 Q. Were you the person allegedly in charge of the

24 person who you say escaped?

25 A. No, sir, I was not.

3007

1 Q. Well, who was that person?

2 A. SPO4 Mariano, sir.

3 Q. Is that one of the fellows that came to the

4 United States with you?

5 A. No, sir.

6 Q. Do you know if Mariano made a report?

7 A. I don't know, sir.

8 Q. Now, sir, prior to coming to the United States

9 did you have meetings with officials -- withdrawn.

10 Did you have meetings with the officials of the

11 PNP with respect to what you would testify in this courtroom

12 no, sir.

13 A. No, sir.

14 Q. You didn't speak to any higher-ups or superior

15 officers in the PNP before coming to the United States?

16 A. No, sir.

17 Q. And you didn't speak to any officials of the PNP

18 when you got here to the United States, correct?

19 A. No, sir.

20 Q. And you're staying in the same hotel with, and

21 correct me if I'm wrong, with Malitao and Senior Inspector

22 Monteagudo; is that right?

23 A. That's correct, sir.

24 Q. Are you discussing this case with them during

25 your course and stay in the hotel?

3008

1 A. No, sir, I do not.

2 Q. How long have you been in the United States now?

3 A. Sir, we arrived here on July the 3rd, so about

4 three weeks.

5 Q. Close to four weeks?

6 A. Yes, sir.

7 Q. And in this four-week period of time you've never

8 once mentioned anything to your brother officers about this

9 case; is that right?

10 A. With regard to this case, sir, we don't talk

11 about it.

12 Q. Now, sir, on January 6th or 7th of 1995, did you

13 go to the Dona Josefa apartments at 711 Quirino Avenue?

14 A. Could you repeat that, please?

15 (Record read)

16 A. No, sir, I did not.

17 Q. Prior to January 11, 1995, did you participate in

18 the arrest of Muslims in and around greater Manilla?

19 MR. GARCIA: Objection.

20 THE COURT: Yes, sustained.

21 MR. GREENFIELD: Your Honor, may I have an offer

22 of proof at a later point?

23 THE COURT: Yes.

24 Q. Did you conduct any searches in or around Manilla

25 on January 8th, 9th or 10th of 1995?

3009

1 A. No, sir.

2 Q. Sir, your position at the PNP is SPO1?

3 A. That is my rank, sir.

4 Q. And you're assigned to the intelligence command?

5 A. That is correct, sir.

6 Q. How long have you been assigned to that command?

7 A. Almost six years, sir.

8 Q. And is the intelligence command part of the

9 western police district?

10 A. No, sir, it's not.

11 Q. Now, what is as of January 7th -- withdrawn.

12 As of January 11, 1995, what was your job

13 description in the intelligence command?

14 A. I was a member of the alert team, sir.

15 Q. And for six years -- withdrawn.

16 What was your job description at the intelligence

17 command?

18 A. I would be the equivalent of a research analyst

19 in my offices.

20 Q. Now, your immediate superior would be whom?

21 A. On what date, sir?

22 Q. On January 11th, sir.

23 A. Police officer Major Monteagudo, sir.

24 Q. Now, is that the same person who is Senior

25 Inspector Monteagudo?

3010

1 A. That is Police Major Monteagudo, sir.

2 Q. There is no rank of Major in the Police

3 Department, isn't that right?

4 A. Before he was a PNP, that was the rank.

5 Q. When he was military?

6 A. With the Philippine constabulary.

7 Q. Which was military?

8 A. Yes, sir.

9 Q. Now, sir, Senior Inspector Ferro, is he part of

10 the same unit that you belong to?

11 A. That's different, sir.

12 Q. Are your offices within the same building as

13 Major Ferro -- Senior Inspector Ferro's?

14 A. Sir, these are in separate buildings.

15 Q. When I say your office, your command is located

16 in a building separate and apart from the command where

17 Inspector Ferro and his people work; is that a fair

18 statement?

19 A. It is within the same compound of Camp Crame, but

20 these are separate buildings.

21 Q. Now, sir, on January 11, 1995, was Senior

22 Inspector Angeles part of the intelligence command?

23 A. I don't know anyone by the name Angeles, sir.

24 Q. Now, who is the senior officer in charge of the

25 intelligence command in January of 199567?

3011

1 A. Police Chief Superintendent Garcia.

2 Q. Now, sir, January 11, 1995, you say you went to

3 the vicinity of Singalong Street; is that correct?

4 A. That is correct, sir.

5 Q. How many other men went with you?

6 A. There were more or less about eight.

7 Q. You said Inspector Serrano went, Senior Police

8 Officer Malitao went, correct?

9 A. Yes, sir, we were we all went together.

10 Q. Who else went besides the three people, including

11 yourself, that I just named?

12 A. Sir, the other persons were Mr. Casipet, Ms.

13 Beloria, Mr. Mariano.

14 Q. Now, your testimony was last week that it was

15 your assignment to closely watch a building on Singalong

16 Street; is that right?

17 A. Yes, sir.

18 Q. Now, where is it that you set up your observation

19 point to make your observations of the building?

20 A. On the other side of the street in front of the

21 building, sir.

22 Q. Were you on foot or were you in a vehicle?

23 A. Sir, the vehicle that we had was stationed

24 outside across the building, and I was outside of the

25 vehicle standing around, looking around.

3012

1 Q. Approximately how many feet or meters were you

2 from the building you were observing?

3 A. I can't tell you the distance in meters. I can

4 tell you that it is close.

5 Q. Now, sir, where is Mr. Malitao at this time?

6 A. He was inside the van, sir.

7 Q. And you're right near the van?

8 A. Yes, sir, I was outside close to where the van

9 is.

10 Q. Sir, you say you see a taxi arrive.

11 A. Yes, that's what I saw.

12 Q. What time was it that the taxi arrived?

13 A. Sir, that would be in the early morning of

14 January 12, 1995.

15 Q. Approximately what time on the clock?

16 A. Around 2 o'clock in the morning.

17 Q. Now, sir, did the woman enter the building at

18 2010 Singalong Street when you first saw her exit the taxi?

19 A. She entered the gate of 2010, sir.

20 Q. Did she enter the building?

21 A. Not at that time, sir. She didn't.

22 Q. Now, sir, you say you approached the woman as she

23 exits the taxi?

24 A. No, sir, that's not what I did. I reported it to

25 SPO4 Malitao that a woman had came out of a taxi.

3013

1 Q. Well, you're standing right next to the van when

2 this supposedly happens, aren't you?

3 A. No, sir, I was not right beside the van. I was a

4 bit of a distance from the van.

5 Q. Well, how did you communicate with SPO4 Malitao?

6 A. I went closer to the van and I told him.

7 Q. And during this time then the woman must have

8 entered the apartment building?

9 A. Sir, she was just there by the gate around the

10 driveway area.

11 Q. Waiting for you to communicate with SPO4 Malitao?

12 MR. GARCIA: Objection.

13 THE COURT: Next question.

14 Q. How far from the street is the entrance to 2010

15 Singalong Street?

16 A. Sir, I can not tell you the distance, but the

17 street is close to the gate.

18 Q. Sir, do you stop the woman or does SPO4 Malitao

19 stop this woman?

20 A. No, sir, SPO4 Malitao approached her.

21 Q. And you approached the cabdriver?

22 A. Yes, sir.

23 Q. And you paid the cabdriver?

24 A. Yes, sir.

25 Q. And after you paid the cabdriver I think you said

3014

1 you saw some bags in the back of the taxi?

2 A. That is correct, sir.

3 Q. Now, did you take the bags out of the taxi at

4 that time?

5 A. No, sir, that's not what happened. While SPO4

6 Malitao and the woman were speaking to each other, I

7 reported to SPO4 Malitao that there were bags in back of the

8 taxi.

9 Q. Well, who took the bags out of the taxi?

10 A. SPO4 Malitao did, sir.

11 Q. Sir, there comes a time when you enter an

12 apartment at 2010 Singalong Street; is that correct?

13 A. That is correct, sir.

14 Q. Was anyone in that apartment when you entered?

15 A. I don't remember, sir.

16 Q. Well, you were entering a strange apartment that

17 you'd never been in before, correct?

18 A. That is correct, sir.

19 Q. Were your weapons drawn when you entered that

20 apartment?

21 A. No, sir. It was hidden.

22 Q. Did anybody have a weapon drawn when they entered

23 that apartment?

24 A. No, sir.

25 Q. Now, sir, do you recall as you sit on the stand

3015

1 now if there was anybody in the apartment other than

2 yourself and your fellow officers and this lady at the time

3 you entered it?

4 A. Yes, sir, after we entered and the rest of our

5 company had entered also.

6 Q. But other than police officials, were there any

7 other people in the apartment?

8 A. No, sir, I didn't see anyone.

9 Q. Now, sir, did you have a search warrant to enter

10 that building?

11 A. No, sir, I don't remember.

12 Q. You don't remember or you didn't have one?

13 A. As far as I remember, I, myself, I didn't have

14 one.

15 Q. Well, did you see Inspector Serrano waving a

16 search warrant around?

17 A. Inspector Serrano didn't show me any, sir.

18 Q. Well, did he tell you that they had a search

19 warrant for the premise?

20 MR. GARCIA: Objection.

21 THE COURT: No, go ahead, answer it.

22 A. I don't remember, sir.

23 Q. Now, sir, they say -- withdrawn.

24 You say there came a time when you're standing in

25 the living room or you're in the living room that you asked

3016

1 this woman for permission to search the two plastic bags, do

2 you recall that?

3 A. That is correct, sir.

4 Q. Specifically, what did you say to this lady with

5 respect to seeking her permission?

6 A. Yes, sir.

7 Q. Is that what you said? What did you say to this

8 lady with respect to seeking her permission?

9 A. This is the way I said it. Ma'am, can I be able

10 to see what is the contents of your bags and your shoulder

11 bag?

12 Q. Now, did you tell her that you had no right to

13 look in her bag without a search warrant?

14 MR. GARCIA: Objection.

15 THE COURT: Yes, sustained. Did you say anything

16 else?

17 THE WITNESS: No, sir.

18 Q. Did you ask her to sign something that said she

19 consented to being searched, as you described it?

20 A. No, sir.

21 Q. Did you tell her that you needed a search warrant

22 to search the apartment?

23 MR. GARCIA: Objection.

24 THE COURT: Sustained.

25 Q. Did you also -- withdrawn.

3017

1 Were you the person who asked her for permission

2 to search the apartment?

3 A. No, sir, that wasn't me.

4 Q. Do you know if anybody received her written

5 consent to search the apartment?

6 A. I don't remember any, sir.

7 Q. When you looked through the bags with respect to

8 the documents that were found in those plastic bags where

9 did you find the different documents in those bags?

10 A. Which documents are we referring to? There are

11 many documents, sir.

12 Q. The documents that you've identified, sir, that

13 are in evidence, sir.

14 A. Yes, sir.

15 Q. Those are the documents I'm talking about, sir.

16 A. Yes, sir.

17 Q. Sir, where did those documents come from, sir?

18 A. Sir, some of those documents came from the

19 shoulder bag that was with the woman, and some of them came

20 from the regular bag that the woman had.

21 Q. Describe which documents came from the shoulder

22 bag and which documents came from the plastic bag?

23 A. Sir, what I remember is the pictures, the post

24 cards, the envelope that came from the woman's shoulder bag.

25 Now, what I remember coming from the bags were the

3018

1 screwdriver, the bottle, and that particular thing that

2 looked like a clock or a timer.

3 Q. Now, sir, there came a time when the apartment

4 was searched, is that not right?

5 A. Yes, sir.

6 Q. At the time the apartment was being searched had

7 you already searched the plastic bags and the shoulder bag?

8 A. Sir, that had been done, sir.

9 Q. By yourself?

10 A. Myself and SPO4 Malitao, sir.

11 Q. Had you removed those items that you previously

12 identified from the bags?

13 A. Sir, after we took it out of the bag we returned

14 it into the particular bags where they were taken from.

15 Q. So what you're saying is then you didn't have

16 possession or keep possession of the things that were taken

17 from the bags after you first searched them?

18 A. Sir, after we had looked at the bags we put the

19 things back into the bag, we sat the bags aside, and I was

20 keeping a watch on the bags and the woman that possessed

21 those bags.

22 Q. Now, there came a time when you took into your

23 possession the items which you've identified in this

24 courtroom; is that correct?

25 A. Sir, I was just keeping a close watch on them.

3019

1 Q. Did there come a time during the course of the

2 evening when you took into your possession items like the

3 screwdriver and the clock?

4 A. No, sir, I did not.

5 Q. Sir, with respect to 435 --

6 MR. GREENFIELD: May I approach, your Honor?

7 THE COURT: Paul is coming this way.

8 MR. GREENFIELD: Thank you.

9 Q. -- you say that that is in the same condition it

10 was in on January 11, 1995, correct?

11 A. Yes, sir.

12 Q. Is that opened now or is it sealed shut with

13 screws?

14 A. Sir, this is still closed the same.

15 Q. Now, sir, did you put any identifying marks or

16 labels on this 435 in evidence when you first found it on

17 January 12, 1995?

18 A. No, sir, I did not.

19 Q. And would the same be true for 427 in evidence,

20 the screwdrivers?

21 A. Yes, sir, that is the screwdrivers.

22 Q. Now, sir, there is on the front of the case with

23 the screwdrivers there is a yellow tag. Do you see that?

24 A. Yes, that was there, sir.

25 Q. And is Alco a company in the Philippines, a store

3020

1 in the Philippines?

2 A. I don't know, sir, if that is a store.

3 Q. Now, sir, had that case containing the

4 screwdrivers been opened on January 12, 1995?

5 A. I don't remember if this was opened or not.

6 Q. Now, sir, you say as to these two items that

7 we've just been discussing they were in plastic bags,

8 correct?

9 A. Yes, sir, they were in the plastic bags.

10 Q. Have you seen those plastic bags since that day?

11 Withdrawn.

12 Do you recall the writing on the plastic bags?

13 A. I don't remember, sir.

14 Q. Have you seen those bags since January 12, 1995?

15 A. Yes, sir, I saw them at that time.

16 Q. Since then?

17 A. Sir, while I was taking the video at that time

18 they set aside those bags, and after that I didn't see them

19 any more.

20 Q. Now, sir, yes or no, were there any other papers

21 or documents in those plastic bags?

22 A. I don't remember any more, sir.

23 Q. You don't remember anymore, is that what you're

24 saying?

25 A. There were other things there, but I don't

3021

1 remember them exactly any more.

2 Q. Specifically we're talking about documents or

3 paper now, sir?

4 A. Yes, there were documents that I saw.

5 Q. Like receipts from purchases?

6 A. Yes, there were also receipts, sir.

7 Q. And, sir, with respect to 420 --

8 MR. GREENFIELD: Your Honor, I'm handing to your

9 clerk 420A through C.

10 A. Yes, sir, I remember these things.

11 Q. I believe it's your testimony that these three

12 documents 420A through C, were found in the lady's shoulder

13 bag; is that right?

14 A. Yes, sir, this came inside the woman's shoulder

15 bag.

16 Q. And she was wearing a Casio watch that evening,

17 wasn't she?

18 A. I don't remember, sir, if she was wearing a watch

19 or not.

20 Q. A Casio watch?

21 MR. GARCIA: Objection.

22 THE COURT: That doesn't change it.

23 MR. GREENFIELD: Maybe it refreshes his

24 recollection.

25 THE COURT: Go ahead. Do you remember if she was

3022

1 wearing a Casio watch?

2 THE WITNESS: I don't remember, sir, if she was

3 wearing a watch, or if that was a Casio watch.

4 Q. Sir, did you question her about the watch?

5 A. No, sir, I didn't ask her.

6 Q. Did you question her about the receipts?

7 A. No, sir, I didn't ask her.

8 Q. Now, you also said that there were other

9 documents, 412A through F that were also in the shoulder

10 bag.

11 A. Yes, sir, you're correct. Yes, sir, I remember

12 these things.

13 Q. Now, sir, with respect to these six items that

14 are before you, and with respect to the documents that you

15 found relating to the watch, on January 12, 1995, did you

16 place your initials or the date on each of those documents

17 which you say you seized?

18 A. No, sir, I did not.

19 MR. GREENFIELD: Your Honor, may I approach the

20 witness to show him specifics?

21 THE COURT: Sure.

22 Q. I show you 412E, sir. As an example, if you

23 know, was this document ever submitted to the National

24 Bureau of Investigation of the Philippine National Police

25 for handwriting analysis?

3023

1 A. I don't know if anything of that sort occurred,

2 sir.

3 Q. Now, sir, if you look to the bottom of that

4 document it bears a date 6/22/94. Do you see it?

5 A. Yes, sir, there is.

6 Q. This is a post card, isn't it?

7 A. Yes, sir.

8 Q. You see a stamp affixed to that post card?

9 A. No, sir, I don't see.

10 Q. I show you two other documents, 412D and 412F.

11 Do you know if any of those documents were ever submitted to

12 the National Bureau of Investigation of the Philippine

13 National Police for handwriting analysis?

14 A. I don't know anything of that of that sort, sir.

15 Q. Those two are also post cards, are they not?

16 A. That's correct, sir.

17 Q. Do either one of those bear any stamps?

18 A. No, sir, there are no stamps.

19 Q. I show you 412A through C. On January 12, 1995,

20 did you look at those documents, A through C?

21 A. Yes, sir, I saw this.

22 Q. Did you attempt on January 12, 1995 to ascertain

23 the post marks on those documents, those letters, those

24 envelopes?

25 A. No, sir, I didn't do anything of that sort.

3024

1 Q. With respect to the photographs that you

2 identified earlier, did you place your initials and/or the

3 date on any of the backs of those photographs?

4 A. No, sir, I didn't put anything of that sort.

5 Q. Now, you say there comes a time after the woman

6 gives you permission to look in the bags, the woman gives

7 Serrano permission to look in the apartment, that somebody

8 speaks to the woman about giving permission to go someplace

9 else. Do you remember that?

10 A. I don't know anything about that other thing,

11 sir.

12 Q. Didn't you testify on direct examination that

13 Inspector Serrano asked the woman for permission of the

14 woman if she would consent to being invited to our office?

15 MR. GREENFIELD: 2987, your Honor.

16 A. Sir, that is correct that after SPO4 Malitao and

17 Inspector Serrano did the inspection upstairs they came down

18 and Inspector Serrano asked the permission of the woman if

19 she would consent to being invited in our offices.

20 Q. Well, what specifically did Inspector Serrano --

21 By the way what, time of the day or night is

22 this?

23 A. That was the in the early morning of January the

24 12th, 1995, sir.

25 Q. About 3 a.m.?

3025

1 A. Between 2:30, 3 o'clock.

2 Q. Now, what specific words did Serrano used at

3 2:30, 3 a.m. in the morning in extending this invitation to

4 go to the intelligence command of the Philippine National

5 Police Department?

6 A. This is the way that I remember Inspector Serrano

7 said it. Madame, can I ask your permission if you would

8 accept an invitation to come to your offices.

9 Q. And did he bow?

10 MR. GARCIA: Objection.

11 THE COURT: Sustained.

12 MR. GREENFIELD: I withdraw that, your Honor.

13 Q. What, did he say anything else to this lady?

14 A. Nothing else that I remember, sir.

15 Q. And what did the lady say?

16 A. She consented, sir.

17 Q. And off you went in one van, nine people

18 including the lady to the intelligence command of the

19 Philippine National Police Department?

20 A. There was not nine personnel, sir.

21 Q. Didn't you say it was eight people, plus yourself

22 and the lady?

23 A. Sir, the persons that returned to the van were

24 Inspector Serrano, myself, the woman Mr. Casipit and SPO4

25 Mariano.

3026

1 Q. What happened to Malitao? Did he stay behind?

2 A. Yes, sir, he was not there.

3 Q. And the other people were left there, also?

4 A. Yes, sir. There were other people that were left

5 there with him.

6 Q. Now, there came a time when you arrived at the

7 intelligence command of the PNP with this lady who has

8 consented to go there?

9 A. That is correct, sir.

10 Q. How many hours go by before she's allowed to go

11 home?

12 A. I don't know, sir. I know that she was there

13 that day.

14 Q. And the next day?

15 A. Yes, sir, the next day she was there.

16 Q. And the next day?

17 A. Yes, sir, up until the 14th she was there.

18 Q. And then past the 14th, also, isn't that correct?

19 A. I don't know, sir, because at that time I had a

20 different job.

21 Q. Now, sir, was this woman ever arrested by you?

22 A. No, sir.

23 Q. Was this woman ever charged with a crime?

24 A. Sir, I don't remember if she was charged with a

25 crime.

3027

1 Q. Was she ever brought before a judge?

2 A. Sir, I don't know about that.

3 Q. Now, sir, this woman was kept there, you're

4 saying, for at least three consecutive days without being

5 allowed to leave isn't that correct?

6 MR. GARCIA: Objection.

7 THE COURT: Yes, sustained.

8 Q. Now, when you get to Camp Crame, correct me if

9 I'm wrong, that's basically a high-security area, is that

10 not right?

11 A. Yes, sir, each section has its own security.

12 Q. I mean, but that's top secret over at the

13 intelligence command, isn't it?

14 MR. GARCIA: Objection.

15 THE COURT: No, go ahead answer it.

16 A. I don't know, sir.

17 Q. Well, certainly there are many guards that guard

18 the buildings and the different floors of the intelligence

19 command, are there not?

20 A. Yes, sir, there are different guards in the

21 intelligence command.

22 Q. And how many buildings are there that are

23 comprising the intelligence command?

24 A. Three, sir.

25 Q. Now, sir, the woman was taken into the officers

3028

1 lounge of one of these three buildings by you, isn't that

2 what you testified to on direct examination?

3 A. Yes, sir, the officers lounge.

4 Q. And was that the building she was kept in for

5 three days?

6 MR. GARCIA: Objection.

7 THE COURT: No, I'll permit it.

8 A. Sir, it is at the officers lounge where I left

9 this woman and eventually I saw her at our offices.

10 Q. Over the next three days?

11 A. Yes, I saw her, sir.

12 Q. She was always wearing the same clothing?

13 A. No, sir, she was changing her clothes.

14 Q. Sir, was she allowed to leave the premises in the

15 intelligence command on January 12th, 13th and 14th as far

16 as you know?

17 A. I don't know, sir.

18 Q. But your testimony is as of the 14th you don't

19 see her any more; is that correct?

20 A. On the 14th, sir, I saw her in our offices.

21 Q. Is that the last time you saw her?

22 A. Sir, I saw her after I had my security detail

23 with the Pope.

24 MR. GREENFIELD: That's responsive.

25 MR. GARCIA: Objection.

3029

1 THE COURT: It's not responsive. It's stricken.

2 MR. GREENFIELD: Thank you, your Honor. Is this

3 a time to take a break, your Honor?

4 THE COURT: Sure.

5 (Continued on next page)

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3030

1 (Jury, witness and interpreter not present)

2 THE COURT: You wanted to make an offer.

3 MR. GREENFIELD: Oh, yes, your Honor. Our

4 investigation indicates that somewhere over 40 Muslims were

5 arrested in Greater Manilla during that week when my client

6 was arrested, and I wanted to be able to prove through this

7 witness that they were just snatching up people of Muslim

8 religion for whatever their purposes were in the sense of

9 the Pope's visit. I assume that's what it was.

10 I wanted to show to this jury because I opened up

11 on it, and there is a historical problem in the Philippines

12 between Muslims an Catholics, and I think that their mind

13 set can be shown for what reason they want to, I can show

14 their mind set for reasons I want to show that there was

15 indiscriminate seizures and arrests of people at or around

16 the time the Pope came to the Philippines.

17 THE COURT: It's easy to get up and say that it's

18 indiscriminate seizures of people. It is almost impossible.

19 MR. GREENFIELD: I can make a specific offer of

20 proof tomorrow to your Honor. I don't have the documents

21 here.

22 THE COURT: It will have to be a heck of a lot

23 more specific than that. That's for sure.

24 MR. GREENFIELD: I've got newspaper articles

25 indicating that.

3031

1 THE COURT: I don't know. You may.

2 MR. GREENFIELD: Not here, Philippine newspapers.

3 THE COURT: I'll take a look at them tomorrow,

4 but not today. It doesn't make it today. All right.

5 (Recess)

6 (Continued on next page)

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3032

1 (In open court; jury present)

2 CESAR CALMADA, resumed through the interpreter.

3 CROSS-EXAMINATION(Continuing)

4 BY MR. GREENFIELD:

5 Q. Sir, yes or no, was January 14th the last day you

6 saw this woman in the intelligence command at Camp Crame?

7 A. No, sir.

8 Q. When is approximately the last day that you saw

9 her at Camp Crame?

10 A. Yes, sir, after I got this new assignment for the

11 security detail of the Pope I saw her one time.

12 Q. And when was that?

13 A. I don't remember what date that was, sir.

14 Q. Approximately ten days later?

15 A. I would say about three or four days.

16 Q. And she was still consenting to stay there?

17 A. I believe that when I saw her at that time she

18 was just visiting the offices.

19 Q. Sir, what building is the officers lounge located

20 in?

21 A. It is the second building inside the intelligence

22 command compound.

23 Q. Is that the building where your offices are

24 located?

25 A. It's in another building but it's side by side,

3033

1 sir.

2 Q. What is the third building in the command besides

3 your building and the building where the officers lounge is

4 located in?

5 A. That third building that is what you would call

6 the technical security group.

7 Q. Are there any other buildings in the intelligence

8 command besides the technical security group building, the

9 building where your office is located, and the building

10 where the officers lounge is located?

11 A. Just those three buildings, sir.

12 Q. Senior Inspector Monteagudo's office is in which

13 of the three buildings?

14 A. The middle building, the second building.

15 Q. And that would be the same building where your

16 office is?

17 A. That is correct, sir.

18 Q. But that is not the building where you took the

19 woman, correct?

20 A. It's the same building, sir.

21 Q. Well, then I misunderstood.

22 Besides the building where your office and Senior

23 Inspector Monteagudo's office is, besides the technical

24 security group building, what is the third building?

25 A. It would be the main building of the intelligence

3034

1 command.

2 Q. Is that the building where Col. Garcia had his

3 offices?

4 A. That is correct, sir.

5 Q. Do you know if Major Ferro was in that building

6 where Col. Garcia's office is?

7 A. Sir, the offices of Major Ferro is within the

8 offices of Mr. Garcia, the same building.

9 Q. Now, these three buildings, are they surrounded

10 by barbed wire?

11 A. No, sir.

12 Q. Do they have electrified fences?

13 A. No, sir.

14 Q. Would you call it a highly secure area?

15 A. In my opinion you would call it a secure

16 building.

17 Q. Well, outside of the grounds there are many

18 guards walking the perimeter of the building?

19 A. On each gate of Camp Crame there are security

20 guards.

21 Q. And there are soldiers?

22 A. Policemen, sir.

23 Q. Now, sir, while in the officers lounge with this

24 woman you say Inspector Serrano and Chief Inspector

25 Monteagudo entered the office and Inspector Monteagudo has a

3035

1 conversation with the lady; is that right?

2 A. Yes, sir.

3 Q. And I think your testimony is that at that time

4 Senior Inspector Monteagudo sought the lady's permission to

5 search the bags, all three bags again?

6 A. Yes, I heard Chief Inspector Monteagudo ask the

7 permission to look into the bags and the shoulder bag of

8 this woman once again.

9 Q. What did he say specifically to the lady?

10 A. This is how Monteagudo would have said it:

11 Ma'am, can I ask your permission to look at the contents of

12 the bag and the shoulder bag that you are carrying with you?

13 Q. That's how you recall it being said?

14 A. That's what I remember.

15 Q. Sir, when Monteagudo was in the room with the

16 lady did he bring a tape recorder in with him and place it

17 on the table and tape record the conversation?

18 A. I don't remember anything of that sort, sir.

19 Q. Do you have a specific recollection of seeing a

20 tape recorder in the officers lounge the early morning hours

21 of January 12, 1995?

22 A. No, sir, I don't remember anything of that sort.

23 Q. How long is Senior Inspector Monteagudo in the

24 room with the lady before you leave to go back to Singalong

25 Street?

3036

1 A. Sir, I was there for about ten to 15 minutes

2 taking the video of the things that were on the table, and

3 then after that I left.

4 Q. Who did you leave with?

5 A. I was with Hilario Arroyo our deputy Police

6 Inspector.

7 Q. Just the two of you went to the Singalong Street

8 address?

9 A. Yes, sir, just the two of us.

10 Q. And at some point he goes into the building and

11 comes back out to the van and you go back to Camp Crame?

12 A. Sir, after we arrive at 2010 Singalong Street,

13 about one or two minutes after he entered that building he

14 came out with the rest of our group, we boarded the van and

15 we went back to our offices.

16 Q. Now, sir, you've identified the man that's

17 sitting at the end of the table as somebody you saw at Camp

18 Crame during a period of time in January of 1995. Am I

19 correct?

20 A. Yes, sir, the second time when I came back coming

21 from Singalong Street that was the time that I first saw

22 this gentleman.

23 Q. In what building did you see him of the three you

24 previously described?

25 A. At the security branch office building, the

3037

1 security branch office building of that building.

2 Q. Is that the building where Senior Inspector

3 Monteagudo maintains his office?

4 A. That is correct, sir.

5 Q. And you have an office there, too?

6 A. Yes, sir, I do.

7 Q. How many floors is this building?

8 A. Two, sir.

9 Q. Now, with respect to the man sitting at the end

10 of the table, you had a number of personal contacts with him

11 over the time he was at Camp Crame in January of 1995, isn't

12 that right?

13 A. Yes, sir, I saw him there.

14 Q. He was blindfolded a number of times, too, isn't

15 that right, when you saw him?

16 A. I don't remember, sir.

17 Q. Now, where is it in the three buildings at Camp

18 Crame that this man was seen by you?

19 A. Sir, it was in the second building. It's the

20 security branch office building where our offices are.

21 Q. What floor was he kept on?

22 A. On the first floor, sir.

23 Q. Was he kept in like a little apartment that you

24 had on the first floor for visitors?

25 A. No, sir, that is our offices.

3038

1 Q. That's the building where all the offices to the

2 group that you belong to are located, isn't that right?

3 A. That's correct, sir.

4 Q. Well, on the first floor where he was staying was

5 that in like a little apartment that was maintained on the

6 first floor by your group for visitors?

7 A. Sir, that is not an apartment. That right there

8 is a part of our offices.

9 Q. Is that a jail of some kind that's maintained in

10 your offices on the first floor?

11 A. Sir, the place where it's called jail is

12 different from where our offices are. I first saw him at

13 our offices.

14 Q. You mean there is no jail facility in your

15 building where your offices are maintained; is that right?

16 A. Sir, it is on the other side of our offices where

17 that place is. It's on the other side by the mess hall.

18 Q. Are there any cells that are maintained in your

19 building for prisoners?

20 A. Yes, sir.

21 Q. Was the man who's sitting at the end of the table

22 kept in one of those cells?

23 A. Yes, sir.

24 Q. Now, is that the type of cell that has steel bars

25 in front of it?

3039

1 A. Sir, the door is made out of steel.

2 Q. And the other three walls are made of concrete?

3 A. Sir, it has a window about this big (indicating)

4 and then that is the wall.

5 Q. Are there bars on the window?

6 A. Yes, sir, there are steel bars.

7 Q. It's a very secure cell?

8 A. In my opinion it is a secure cell.

9 Q. And when you put the person in the cell do you

10 give him a key to use to go out when he wants to go to the

11 bathroom?

12 MR. GARCIA: Objection.

13 THE COURT: Well, it is badly formed.

14 MR. GREENFIELD: I'll rephrase the question.

15 Q. Does an individual who goes into one of those

16 cells have free run of the building and could he go anywhere

17 he wants?

18 A. No, he stays there where he's supposed to be.

19 Q. He's locked in, isn't that right?

20 A. Sir, it was on the 13th and the 14th that I saw

21 him locked up.

22 Q. Sir, are there guards stationed in front of the

23 cell to watch the occupant of that particular cell?

24 A. No, sir.

25 Q. How many cells are there in that building?

3040

1 A. Only one, sir.

2 Q. Sir, did you ever see the man sitting at the end

3 of the table you identified outside the cells between

4 January 12th and January 14th or 15th, 1995?

5 A. Sir, on January the 12th I saw him laying down on

6 the folding bed and he was being fed by Carol Santiago.

7 Q. On January 12th, 1995, you saw him lying down on

8 a bed in a cell being fed by Carol Santiago. Is that what

9 you said?

10 A. Sir, that wasn't in the cell. That is in our

11 mess hall where they have the folding bed and that's where

12 he was with Carol Santiago, and if he was hungry she would

13 feed him.

14 Q. But you mean he's out of his cell when you saw

15 him on January 12, 1995?

16 A. On that day of the 12th he was out of that cell.

17 Q. And was he blindfolded?

18 A. I don't remember, sir.

19 Q. Was he handcuffed?

20 A. Yes, sir.

21 Q. Was he shackled at the feet?

22 A. No, sir, it wasn't.

23 Q. Every time you saw him he was handcuffed?

24 A. When it's time to eat Carol Santiago and him have

25 their food together, and he is not handcuffed.

3041

1 Q. Where was Carol Santiago staying during those

2 three days that you've described?

3 A. She was staying at administrative branch office,

4 sir.

5 Q. The administrative branch office, I'm sorry, is

6 that what I heard?

7 A. Yes, in the room of the administrative branch

8 office.

9 Q. Is that the same building where the cell is

10 located?

11 A. Yes, sir.

12 Q. Now, during these days January 12, 13, 14th and

13 maybe days after, you were present, were you not, when the

14 man who was being when the man was being questioned by

15 members of the PNP?

16 A. I'm in the offices. I was within the lobby of

17 the offices, sir.

18 Q. Now, sir, isn't it a fact that you personally

19 kicked the man who's sitting at the end of the table any

20 number of times in the head and ribs?

21 A. That is not the truth, sir.

22 Q. Isn't it a fact you broke his right rib?

23 A. That is not the truth, sir.

24 Q. Did you punch him in the back, in the face and in

25 the stomach?

3042

1 A. That is not the truth, sir.

2 Q. Did you clap both your hands to his ears while he

3 was handcuffed and blindfolded?

4 A. That is not the truth, sir.

5 Q. You have a nickname at Camp Crame, don't you?

6 A. What nickname are you talking about, sir?

7 Q. Brown Cow, isn't that your nickname?

8 MR. GARCIA: Objection.

9 THE COURT: I don't know where that's going.

10 Maybe it's going someplace. Let's see where it goes. Go

11 ahead.

12 A. I don't know of any of such a name.

13 Q. You don't have that nickname, is that your

14 testimony?

15 A. Who's nickname are you talking about?

16 Q. Yours.

17 A. I have no such nickname, sir.

18 Q. Were you present when that man's head was dunked

19 in a toilet full of fouled water?

20 A. I don't know anything of that sort, sir.

21 Q. Who was in charge of interrogating the man at the

22 end of the table during the time you say he was present in

23 Camp Crame?

24 A. I don't know that such an interrogation happened,

25 sir.

3043

1 THE COURT: I think there is a connection being

2 made which doesn't, I don't think you want to make. While

3 you saw the defendant at Camp Crame was he ever questioned

4 by anyone that you saw?

5 THE WITNESS: Yes, sir, I saw him being

6 questioned that day, the second time I came back from

7 Singalong Street, January 12, 1995.

8 THE COURT: Okay. Now, who was doing the

9 questioning?

10 THE WITNESS: I saw police Major Frank Garay

11 asking the questions.

12 THE COURT: I didn't get it.

13 A. G-A-R-A-Y.

14 Q. He's known as Garfield, too, isn't he?

15 A. I don't know of that name, sir.

16 Q. Now, sir, this occurred, you saw him being

17 questioned on January 12, 1995. Did you ever see anyone

18 else questioning that man in January of 1995?

19 A. No, sir, I saw no other individuals.

20 Q. Do you know if the man who's sitting at the end

21 of the table was arrested on January 11th or 12th, 1995?

22 A. I don't know, sir, during those days that you

23 mentioned.

24 Q. Now, sir, doesn't the Philippine penal law and

25 constitution require that if an individual is taken into

3044

1 custody that he be booked and brought before a judge in a

2 speedy fashion?

3 A. I believe that that is contained in our

4 constitution.

5 Q. As far as you know on January 11th, 12th, 13th or

6 14th, was the man who is sitting at the end of the table

7 ever brought before a judge and charged with any particular

8 crime?

9 A. I don't remember, sir.

10 Q. Well, you would know, wouldn't you?

11 A. If that happened I would know.

12 Q. Do you have a recollection of it happening?

13 A. I don't remember, sir.

14 Q. Now, sir, doesn't the law of the Philippines also

15 say that if an individual is not arraigned and brought

16 before a judge within 36 hours, the officer who took him

17 into custody is subject to criminal prosecution?

18 A. That is what I understand, sir.

19 Q. As a matter of fact, if you exceed 34 hours the

20 officer who -- 36 hours, the officer who took him into

21 custody faces the crime equivalent to prison correctionale,

22 isn't that right?

23 A. That is what I understand, sir.

24 Q. And what is prison correctionale?

25 A. Sir, I don't know what you refer by prison

3045

1 correctionale. I don't understand that. I know that this

2 is contained perhaps in the penal code.

3 Q. That's a specific period of time you'd be

4 sentenced to if found guilty of holding somebody for more

5 than 36 hours, isn't that right?

6 A. I have no knowledge of that, sir.

7 Q. Now, during the time you say this man who is

8 sitting at the end of the table was in the building where

9 you worked, how many times did you see him in the company of

10 other PNP officials being questioned?

11 A. Just that one time, sir.

12 Q. And you were never present, is that your

13 testimony, through the course of his being questioned?

14 A. No, sir, I don't remember any more.

15 Q. You don't remember any more, is that your

16 testimony?

17 A. With regard to your question of asking me how

18 many other times I saw this person being questioned, there

19 were no other times.

20 Q. During your six years at the intelligence command

21 how many people were kept prisoner in your building?

22 MR. GARCIA: Objection.

23 THE COURT: Sustained.

24 Q. When you saw the individual in the cell he was

25 shackled to the wall with one cuff around his waist?

3046

1 A. No, sir.

2 Q. Did he have handcuffs on?

3 A. On his hands, yes.

4 Q. Incidentally, did he consent to staying at Camp

5 Crame for this period of time as far as you know?

6 A. That I don't know, sir.

7 Q. When you saw him being fed by Carol Santiago was

8 he bleeding?

9 A. No, sir, he was in very good condition.

10 Q. Sir, you say there came a time, I think it's on

11 the evening of January 14th or 15th, when you heard some

12 noise; is that right?

13 A. Yes, sir, in the early morning of the 14th I was

14 awakened by the noise from the people that were working

15 there.

16 Q. Somebody came upstairs to see you?

17 A. No, sir, I was on the main floor. I wasn't on

18 the second floor. I was within our offices.

19 Q. And you went to the cell and you say that the

20 cell was empty?

21 A. After I had talked with the other people that I

22 work with I went down to the cell and I saw that the person

23 had gone. I must correct that. I didn't go down. That was

24 on the same floor. I went to the cell.

25 Q. Were you in charge of the person in the cell?

3047

1 A. No, sir, I wasn't.

2 Q. Who was charged with keeping that person in the

3 cell?

4 A. The person that was assigned as a PNCO that

5 particular day.

6 Q. PNC what?

7 A. PNCO.

8 Q. What is that?

9 A. Police noncommissioned officer.

10 Q. What's his name?

11 A. SPO4 Mariano.

12 Q. Is that the same Mariano who was over at the

13 building on Singalong Street?

14 A. That's correct, sir.

15 Q. Did he have any helpers charged with keeping the

16 person in the cell?

17 A. They are a team, sir.

18 Q. How many men on this team?

19 A. I believe three or four members in that team.

20 Q. And are any of the members stationed in front of

21 the cell?

22 A. No, sir.

23 Q. Outside the building?

24 A. The building of our offices?

25 Q. Well, I'll rephrase the question. I withdraw

3048

1 that.

2 The people who were charged with guarding the

3 person in that cell, where were they stationed?

4 A. They were just there in our offices.

5 Q. Well, their responsibility was, you say, to

6 protect the -- withdrawn. You say the responsibility was to

7 insure the person stayed in the cell; is that correct?

8 A. That's what I know, sir.

9 Q. And they were guarding the cell as far as you

10 know?

11 A. It was SPO4 Mariano that I knew to be the person

12 that was in charge of keeping an eye on this person.

13 Q. Now, SPO4 Mariano, is he a subordinate of yours

14 or a superior of yours?

15 A. He has higher than me rank.

16 Q. Is he the one who notified you that the person

17 was not quote unquote in the cell?

18 A. No particular person informed me. I was awakened

19 when I heard the conversation of these people.

20 Q. And I think on direct examination you went to

21 Monteagudo's office and notified him after you learned of

22 the fact that the man quote unquote was missing from the

23 cell?

24 A. Yes, sir, I was the one that placed the report

25 with our group commander.

3049

1 Q. Well, your group commander, was he located in the

2 building that evening?

3 A. Yes, sir, he would be on the second floor. That

4 was where the officers' quarters are, and that's where he

5 would sleep.

6 Q. When you looked in the cell was the door opened,

7 is that what you're saying?

8 A. Yes, it was opened.

9 Q. How many exits are there from the first floor?

10 A. If you are coming from the cell there would be

11 two doors that you would pass.

12 Q. And both those doors are guarded --

13 THE COURT: I don't. I think he tried answer you

14 but I don't think --

15 In order to get into and out of the building is

16 there a door on each side of the building so that there

17 would be four doors total from the outside to the inside of

18 the building?

19 THE WITNESS: To be able to get into the cell you

20 would have to pass through two doors.

21 THE COURT: Yes, I understand that, but assume

22 that he's out in the hallway at some point or that this

23 person is out in the hallway. Now, does that person have an

24 exit at each end of the building and in the center on each

25 side of the building?

3050

1 THE WITNESS: Sir, it would just be the main door

2 going to our offices, and the door going into the mess hall

3 where immediately the cell would be.

4 THE COURT: I understand that. But that would

5 leave a person still inside the building. Now, I want to

6 know after you are through the second door, how do you get

7 outside the building? Is there an exit on each end of the

8 building and in the center on each side?

9 THE WITNESS: That main door would be the door

10 going towards outside, sir.

11 THE COURT: Okay. Once you get out through the

12 main door, does that get you out into the open air?

13 THE WITNESS: You would still be within the

14 compounds of the intelligence command, sir.

15 THE COURT: Okay.

16 Q. But outside the building?

17 A. Yes, you would be outside of the building

18 already.

19 Q. Is there a check point at every door?

20 A. No, sir.

21 Q. There's nobody on duty at the door, the front

22 door?

23 A. I don't remember, sir.

24 Q. Well, you worked there for six years. You have

25 no --

3051

1 THE COURT: Normally, is there someone on duty at

2 the front door?

3 THE WITNESS: Sir, there would be the PNCO on

4 duty and that's where he would stay.

5 Q. And that's somebody that's outside the three or

6 four men that you described as guarding the cell area,

7 correct?

8 A. Yes, sir, but that would be a member, also, of

9 his team.

10 Q. Now, sir, the individual you identified in the

11 courtroom, how was he dressed the last time you saw him?

12 A. The last time that I saw him he was wearing a

13 white polo short sleeve shirt, black pants and black shoes.

14 Q. Now, sir, that was January 14th?

15 A. That was the 12th, the first time I saw him.

16 Q. What about the 14th? Did you see him then?

17 A. Sir, that day on the 14th, he had a different

18 kind of pants, and he had a different T-shirt that Carol had

19 provided for him to change, and he was wearing rubber shoes.

20 Q. Now, you say that at that point where you become

21 aware of what happens, you go to Senior Inspector Monteagudo

22 and then you all go on to the grounds of the intelligence

23 command to search; is that right?

24 A. Yes, sir, we inspected and searched in the

25 compound and then eventually we left the compound to search

3052

1 for him.

2 Q. Now, there are other police installations in Camp

3 Crame besides the intelligence command, are there not?

4 A. That is correct, sir.

5 Q. Was an alarm sounded as far as you know to let

6 the other commands participate in this alleged search?

7 A. As far as I know there was no alarm sounded, sir.

8 Q. Now, sir, besides yourself and Senior Inspector

9 Monteagudo, who else engaged in this searching process that

10 you've described?

11 A. Sir, all the teams that were in existence at that

12 time were alerted who were in detail for the Pope, they were

13 diverted to look for the person.

14 Q. And how long did this process take?

15 A. Sir, I don't know how long, but myself and I

16 belong to this particular team, when I returned on the 16th

17 I was detailed for the Pope's security.

18 Q. How long did you search for this individual you

19 say escaped on January 15th in the early morning hours?

20 A. Sir, I participated in the search starting that

21 morning up until the evening, up until the early morning

22 when I returned on the 16th and I reported for my detail for

23 the Pope's security guard.

24 MR. GREENFIELD: Your Honor, could that portion

25 which is unrelated to the answer be stricken?

3053

1 THE COURT: Well, until he went off to another

2 job.

3 MR. GREENFIELD: Yes, that's good.

4 THE COURT: Yes, that we understand, ladies and

5 gentlemen. What he's doing we couldn't care less about.

6 All right, it's also time, unless you're about to finish?

7 MR. GREENFIELD: I can use Pliny's rule.

8 THE COURT: It's Pliny, it's not Pleny. All

9 right, ladies and gentlemen. I knew him well.

10 (Continued on next page)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3054

1 (Jury, witness, interpreter not present)

2 MR. GREENFIELD: Actually it's about 15 minutes

3 more.

4 THE COURT: I'm not worried about it. I just

5 want to warn you all once again. We had another example of

6 what happens in translations. It occurred during this and I

7 had to butt in a couple of times. It's not your fault as

8 questioner. It's not his fault as answerrer. It's not even

9 the interpreter's fault. It's just a fact that different

10 languages produce different things.

11 For example, you said to him, question, something

12 along the line of: How many more times did you see him?

13 And he said: I don't remember any more. Is the question

14 whether he doesn't remember any more or was he not

15 remembering any more times. You know it's one of these

16 things every time you're dealing with a witness, and this

17 goes for everybody, who is not speaking English, but may

18 understand English partially, or even better, I don't know,

19 always watch out for the answer, because the answer may mean

20 two different things. So this is a situation where at all

21 times you've got to be very careful. I'm not yelling at

22 anybody. I want you to all understand that.

23 MR. GREENFIELD: I can take a yell.

24 THE COURT: If I'm going to yell at you, you'll

25 know it.

3055

1 MR. GARCIA: Your Honor, the government would

2 just object to the use of these nicknames, Brown Cow and

3 Garfield, which seem calculated only to humiliate the

4 witness, perhaps referring to weight or his race. There

5 just seems to be no point to it other than to humiliate.

6 THE COURT: No, there may be something. I have

7 no idea. There may be something to --

8 MR. GREENFIELD: I have a good faith basis for

9 asking for asking the question, and it's not done in any way

10 to humiliate or to embarrass the witness. Once I heard his

11 answer, I didn't go beyond.

12 THE COURT: 2 o'clock.

13 (Luncheon recess)

14 (Continued on next page)

15

16

17

18

19

20

21

22

23

24

25

3056

1 A F T E R N O O N S E S S I O N

2 2:00 p.m.

3 (In open court; jury not present)

4 MR. GREENFIELD: With respect to the article that

5 I had referred to in the Times, a few people have told me it

6 was the Friday edition and not the Saturday edition of the

7 Times.

8 THE COURT: I didn't see that one either.

9 MR. KULCSAR: Your Honor, just before the end of

10 the day, whatever time your Honor thinks is appropriate, I

11 have matters I want to bring to the Court's attention

12 relating to some ongoing problems Mr. Yousef's having at the

13 MCC.

14 THE COURT: Okay, we'll do it at the end of the

15 day.

16 CESAR CALMADA, resumed, through the interpreter.

17 (Jury present)

18 THE COURT: David.

19 CROSS-EXAMINATION(Continued)

20 BY MR. GREENFIELD:

21 Q. Sir, at any time in the month of January of 1995

22 did you in the course of your duties at the PNP go to the

23 Dona Josefa building?

24 A. No, sir.

25 Q. When for the first time, if ever, did you become

3057

1 aware that something happened at the Dona Josefa building?

2 A. I don't know anything about what happened at the

3 Josefa Apartments, sir.

4 Q. During the course of your duties working in the

5 intelligence command -- withdrawn.

6 What is your function in the intelligence command

7 again?

8 A. Sir, I am a member of the alert team and I'm a

9 research analyst.

10 Q. And as a research analyst do you deal with

11 computers?

12 A. Yes, sir.

13 Q. And as a research analyst do you encode

14 information into computers?

15 A. Most of the things that I encode are reports,

16 sir.

17 Q. Well, putting most of the things aside, in

18 January of 1995, did you do any encoding in any laptop

19 computers?

20 A. None of that sort, sir.

21 Q. As a research analyst in January of 1995, did you

22 review the contents of any computer?

23 A. No, sir, I did not look into any computers.

24 Q. Other than the documents which you've identified

25 in this courtroom as a research analyst were you given any

3058

1 other documents in January of 1995, to review or research?

2 A. No other documents that I worked with, sir.

3 Q. Sir, those documents which you've previously

4 identified in this courtroom, after January of 1995, and

5 before you came to the United States in July of this year,

6 did you see these documents again?

7 A. When I arrived here, sir, I saw them.

8 Q. Prior to -- withdrawn.

9 After you seized them and brought them to the

10 intelligence command you never saw them again until you

11 arrived here in the United States. Is that your testimony?

12 A. After I turned over those documents to our group

13 commander I didn't see them any more and I, the next time

14 that I saw them was here when I arrived.

15 Q. Superintendent Garcia, his office in your

16 building?

17 A. No, sir.

18 Q. Do you know an individual named Delfin,

19 D-E-L-F-I-N?

20 A. Yes, sir.

21 Q. And what is his rank in the Philippine National

22 Police?

23 A. He is the police superintendent, sir.

24 Q. Is his office in your building?

25 A. No, sir.

3059

1 Q. Where is his office?

2 A. He is in the main building, sir.

3 Q. Is that where Inspector Ferro's office is?

4 A. They are in the same building, sir.

5 Q. Now, do you know an individual named Ray Canlas,

6 C-A-N-L-A-S?

7 A. No, sir, I don't know anybody by the name Ray

8 Canlas.

9 Q. Do you know an individual named Richard Macachor?

10 A. Yes, sir, I do.

11 Q. And where does he work?

12 A. He works in the office with Major Ferro.

13 Q. And does he basically do the same thing you do

14 for Major Ferro -- withdrawn.

15 Does he do the same things for Major Ferro that

16 you do for Inspector Monteagudo?

17 A. Could you repeat that, please?

18 MR. GREENFIELD: Can I have it read back, your

19 Honor?

20 (Record read)

21 A. Who are you referring to when you say that?

22 Q. Richard Macachor, if I'm pronouncing it

23 correctly.

24 A. Sir, I don't know what his job entails. We are

25 in separate units.

3060

1 Q. During January of 1995, did you have occasion to

2 go to the office of Major Ferro and retrieve any documents

3 or other items?

4 A. No, sir.

5 Q. During January of 1995, did you have occasion to

6 bring any documents to Major Ferro's office?

7 A. No, sir.

8 MR. GREENFIELD: I have no further questions,

9 your Honor.

10 THE COURT: Redirect?

11 MR. GARCIA: None.

12 THE COURT: None. Thank you. Step down.

13 (Witness excused)

14 MR. GARCIA: Government calls Edgar Malitao.

15 MR. GREENFIELD: Would you repeat that,

16 Mr. Garcia?

17 MR. GARCIA: Edgar Malitao.

18 THE COURT: Thank you.

19 EDGAR MALITAO,

20 Called as a witness by the government.

21 having been duly sworn, testified as follows,

22 through the interpreter:

23 MR. GARCIA: May I proceed, your Honor?

24 THE COURT: Yes.

25 DIRECT EXAMINATION

3061

1 BY MR. GARCIA:

2 Q. Sir, who do you work for?

3 A. I am a policeman and I am a member of the PNP.

4 Q. Are you assigned to a particular command within

5 the Philippine National Police?

6 A. Yes, sir.

7 Q. What command is that?

8 A. With the intelligence command, sir.

9 Q. What is your present rank?

10 A. I'm a Senior Police Officer 4, sir.

11 Q. How long have you been with the Philippine

12 National Police?

13 A. Since January the 2d of 1991, sir.

14 Q. Prior to January of 1991, where did you work?

15 A. I was a member of the Philippine constabulary,

16 sir.

17 Q. When did you join the Philippine constabulary?

18 A. Since the 11th of September, 1970, sir.

19 Q. Officer, directing your attention to January of

20 1995, who was your commanding officer at that time?

21 A. Police Chief Inspector Alex Paul Monteagudo.

22 Q. Now, I'd like to direct your attention

23 specifically to January 11th of 1995. Did you receive an

24 assignment on that date?

25 A. Yes, sir.

3062

1 Q. What was your assignment?

2 A. We were put in alert in a possible deployment,

3 sir.

4 Q. Where were you when you were put on alert?

5 A. We were inside the offices of the counter

6 intelligence group of the intelligence command.

7 Q. Is that located at Camp Crame?

8 A. Yes, sir.

9 Q. Did there come a time on January 11, 1995, when

10 you were sent into the field?

11 A. Yes, sir.

12 Q. Approximately when did that happen?

13 A. More or less around 10 o'clock at night.

14 Q. Where did you report to at 10 o'clock at night?

15 A. We went to the corner of Singalong Street and

16 President Quirino Avenue in Malate, Manilla, sir.

17 Q. How did you get from Camp Crame to that location?

18 A. We boarded our red Veida van.

19 Q. When you say, "we" approximately how many people

20 were with you?

21 A. More or less there were nine of us.

22 Q. Who was the leader of the group?

23 A. Police Inspector Wilfredo Serrano.

24 Q. What did you do after the van stopped at Quirino

25 Avenue and Singalong Street?

3063

1 A. We waited for orders from our higher officials.

2 Q. Did there come a time when you exited the van on

3 Singalong Street?

4 A. Yes, sir.

5 Q. Approximately how long did you wait in the van?

6 A. More or less we waited for about an hour.

7 Q. What did you do after you exited the van?

8 A. I went to apartment 2010.

9 Q. Could you describe the building number 2010?

10 A. This apartment had two stories and there are

11 three doors.

12 Q. What did you see as you approached number 2010?

13 A. I noticed that there were some people outside and

14 there were people inside as well.

15 Q. When you say inside, could you tell us exactly

16 where you saw those people?

17 A. The apartment that I am referring to is the

18 residence of Wali Khan.

19 Q. You stated that number 2010 has three doors.

20 Could you tell us which of the doors you saw people?

21 A. It's the right-most door.

22 Q. Did you recognize any of the people you saw at

23 this time?

24 A. Yes, sir.

25 Q. Who did you recognize?

3064

1 A. Sir, inside the apartment I recognized director

2 Canzon was there, Director Garcia, Chief Inspector

3 Monteagudo, some members of the western police district, and

4 a foreigner.

5 Q. Could you describe the foreigner for us?

6 A. Yes, sir. He was medium in height. He is well

7 built. He is dark haired. He has light complexion, and it

8 looked like he was from the Middle East.

9 Q. Do you know whether or not anyone from your group

10 had a conversation with Chief Inspector Monteagudo at this

11 time?

12 A. Yes, sir.

13 Q. Who was that that had the conversation with

14 Mr. Monteagudo?

15 A. Our team leader Police Inspector Serrano, sir.

16 Q. What happened after Inspector Serrano spoke with

17 Chief Inspector Monteagudo?

18 A. He gave us the instruction to go out and keep a

19 close watch in the vicinity of that area.

20 Q. When you say "he," who are you referring to?

21 A. I'm referring to Police Inspector Serrano, sir.

22 Q. After you got that order, what did you do?

23 A. Yes, sir. We proceeded to go to our van. We

24 stayed there, and we kept a close watch of the area.

25 Q. Was the van parked in the same location you

3065

1 described previously at the corner of Quirino and Singalong

2 while you were doing that?

3 A. Sir, the vehicle had moved closer to the gate of

4 2010.

5 Q. After you went back to the van what do you

6 remember happening next?

7 A. Sir, in the early morning of January 12, 1995,

8 one of my co-workers tapped me on the shoulder and I saw a

9 taxi had stopped right in front of 2010 Singalong Street. A

10 person got out of that taxi and proceeded to enter the gate

11 of 2010.

12 Q. What did you do after you saw this person exit

13 the taxi?

14 A. Sir, at this time I got out of the van and I was

15 followed by my company, Cesar Calmada. We headed toward the

16 direction of the gate. As we were going towards the

17 direction of the gate and we passed the taxi, I saw that in

18 the back of the taxi there were two plastic bags.

19 I then proceeded to peek into the gate and I saw

20 this person that had came out of the taxi. She was inside,

21 and she was looking around the apartment. Later on, she

22 proceeded on to hurriedly come towards the direction of the

23 taxi.

24 Q. First, when you say that she was looking into the

25 apartment, could you tell us which door she was looking

3066

1 into?

2 A. Sir, the door that is on the very right of the

3 building.

4 Q. And is that building number 2010?

5 A. Yes, sir.

6 Q. Did you have a conversation with this woman at

7 this time?

8 A. Yes, sir.

9 Q. Where did this conversation take place?

10 A. As she was approaching the gate, sir.

11 Q. After you had the conversation with the woman by

12 the gate, what did you do?

13 A. I had a conversation with this woman as she was

14 approaching the gate, and I had asked her whether the two

15 bags that were inside the taxi was hers. I then spoke to

16 the taxi driver, and I had asked him to please let me look

17 into the back of the taxi and see if there were any other

18 baggages. He opened the back part of the taxi and I saw

19 that there was nothing in there.

20 Q. What did you do next?

21 A. I took the two bags, sir, and I proceeded to go

22 to the apartment with this woman. I knocked on the door,

23 and proceeded to come in and Police Inspector Serrano was

24 inside.

25 Q. First, you say you took the two bags. Are those

3067

1 the two bags that were in the taxi?

2 A. Yes, sir.

3 Q. And you said you knocked on the door. Which door

4 was that?

5 A. The right-most door of the apartment.

6 Q. Did you go inside the apartment this time?

7 A. Yes, sir.

8 Q. What happened when you got inside?

9 A. Sir, I reported to Inspector Serrano that there

10 was this woman that was looking from the outside of the

11 apartment, and I had the two bags that I had gotten from the

12 vehicle that she came out of.

13 Q. Did Inspector Serrano have a conversation with

14 the woman at this time?

15 A. Yes, sir.

16 Q. Were you present for that conversation?

17 A. Yes, sir.

18 Q. During that conversation did the woman identify

19 herself in any way?

20 A. Yes, sir.

21 Q. How did she identify herself?

22 A. She introduced herself as being Carol Santiago

23 and to prove this she showed us her passport.

24 Q. What happened after Inspector Serrano had the

25 conversation with Ms. Santiago?

3068

1 A. Police Inspector Serrano asked her permission if

2 he would be able to look into her things.

3 Q. Did she consent?

4 A. Yes, sir.

5 Q. Was a search of her things done at this time?

6 A. Yes, sir.

7 Q. When you say, "her things," what do you mean?

8 A. That I refer to her shoulder bag and two plastic

9 bags that she had.

10 Q. After the search of those bags was finished what

11 did you do next?

12 A. Yes, sir. I proceeded to return the things that

13 we had looked at into the bags where they came out of, and

14 then Police Inspector Serrano asked her permission if we

15 would be allowed to look into the apartment.

16 Q. Did she agree?

17 A. Yes, sir, she consented.

18 Q. Was a search of the house done at this time?

19 A. Yes, sir.

20 Q. Did you personally participate in that search?

21 A. Yes, sir.

22 Q. Officer, if you would, first, could you describe

23 for us the layout of this apartment?

24 A. Sir, this apartment would consist of two floors.

25 The first floor had a living room, a dining room, a kitchen

3069

1 area, a toilet, a dirty kitchen. There was also a stairs

2 that went to the second floor. The second floor consists of

3 two bedrooms.

4 Q. What do you mean by a dirty kitchen?

5 A. Sir, the dirty kitchen would be an area where you

6 could do your washing of your clothes and maybe do some

7 washing of your dishes and things and you could also use

8 that as a storage space.

9 Q. Did you search each of these rooms you've

10 described?

11 A. Yes, sir.

12 Q. And did you recover any items during your search?

13 A. Yes, sir.

14 MR. GARCIA: Your Honor, if the witness might be

15 shown Government Exhibits 411A through D, 413A through E,

16 414A and B; 416, 417, 418, 419; and 431 marked for

17 identification at this time.

18 Officer, if you would look at those exhibits and

19 specifically by exhibit number tell us if you recognize the

20 exhibit and if so, where you first saw it.

21 A. Government Exhibit 411A we found this on the

22 second floor in the bedroom in a small table inside the

23 bedroom. The same thing with exhibit 411B, sir. The same

24 thing with exhibit 411C, sir. The same thing with exhibit

25 411D, sir. The same thing with exhibit 413A. The same

3070

1 thing with exhibit 413B, sir. The same thing with exhibit

2 413C, sir. The same thing with exhibit 413D, sir. The same

3 thing with exhibit 413E, sir.

4 The same thing with exhibit 414A, sir. Same

5 thing with exhibit 414B, sir.

6 Exhibit 417, sir, we collected this inside the

7 closet. Same thing with exhibit 416. Exhibit 419 I

8 collected this inside the bedroom in the small table inside

9 the bed respectfully on the second floor.

10 Exhibit 431 I collected this from the living room

11 area. It was inserted in a book.

12 MR. KULCSAR: Your Honor, could I have the last

13 one repeated?

14 (Record read)

15 Q. Officer, I'm sorry if I missed it, but do you

16 have item Government Exhibit 418 in front of you?

17 A. No, sir, we don't have it.

18 MR. GARCIA: Your Honor, if the witness could be

19 handed 418.

20 Q. Do you recognize that item, officer?

21 A. Yes, sir. 418 was recovered from the table

22 inside the bedroom.

23 Q. With respect to Government Exhibits 416 and 417

24 for identification, you mentioned that you saw those in the

25 closet. Which closet was that?

3071

1 A. This was the closet inside the bedroom of Carol

2 Santiago and Mr. Khan.

3 Q. Is that on the second floor of this building?

4 A. Yes, sir.

5 Q. Was the first time you saw these items the

6 morning of January 12, 1995?

7 A. Correct, sir.

8 Q. And those Government Exhibits for identification

9 are those in the same or substantially the same condition

10 they were in when you first saw them that morning?

11 A. Yes, sir, they are all in the same condition and

12 they look the same with the exception of the discoloration

13 on some of the papers.

14 MR. GARCIA: Your Honor, providing counsel may

15 want to see them again, I would offer Government Exhibits

16 411A through D, 413A through E, 414A and B, 416, 417, 418,

17 419 and 431.

18 MR. GREENFIELD: I would take an opportunity to

19 look at them.

20 THE COURT: Sure.

21 (Pause)

22 MR. GREENFIELD: Your Honor, consistent with the

23 application last week, the same. Otherwise no objection.

24 (Government's Exhibit 414A and B, 413A, B, C, D

25 and E, 411A, B, C and D; 431, 418, 419, 416 and 417 received

3072

1 in evidence)

2 Q. Officer what happened after the search of this

3 apartment at 2010 was completed?

4 A. After that, Police Inspector Serrano with

5 Mr. Cesar Calmada and Ms. Cincado, they left the apartment.

6 Myself and some of my company stayed behind.

7 Q. How did you leave the apartment?

8 A. Who are you referring to, sir?

9 Q. You, Officer Malitao.

10 A. After about an hour we were picked up by service

11 vehicle the red Veida van.

12 Q. Do you recall who was with the van when you were

13 picked up?

14 A. It was Senior Inspector Arroyo, Cesar Calmada,

15 myself and the rest of our team.

16 Q. Where did the van go after you boarded it?

17 A. We proceeded to our office in Camp Crame.

18 Q. What did you do once you returned to Camp Crame?

19 A. After we returned to our offices I turned over

20 everything that I had collected from the apartment to police

21 Chief Inspector Monteagudo inside his office, and I placed

22 these things on a table inside the office.

23 Q. Officer, earlier you mentioned that you saw a

24 foreigner with Chief Inspector Monteagudo at number 2010

25 that night. Did you ever see this foreigner again?

3073

1 A. Yes, sir.

2 Q. When was the next time you saw him?

3 A. Around noontime of January the 13th.

4 Q. Where was he when you saw him at that time?

5 A. Yes, sir. Around that noontime of January the

6 13th I saw him inside around the kitchen area of our offices

7 and he was being fed by Carol Santiago who at this time we

8 learned that her true name is Catherine Brioso.

9 Q. Did you see this foreigner again on January 14th?

10 A. Yes, sir.

11 Q. Where did you see him on the 14th?

12 A. In the same area in the kitchen area. He was

13 speaking to Carol Santiago.

14 Q. Looking around the courtroom today, officer, do

15 you see this foreigner that you have just been talking

16 about?

17 A. Yes, sir.

18 Q. Could you point him out for us?

19 A. (Pointing) He's the person on the corner wearing

20 a colored blue shirt with earphones.

21 MR. GREENFIELD: Identifying the defendant, your

22 Honor.

23 THE COURT: Yes.

24 Q. After you saw the Defendant Shah on the night of

25 January 14th, did you ever see him in person again prior to

3074

1 today?

2 A. No longer, sir.

3 Q. Officer, is it your understanding that the United

4 States government will pay your travel expenses for the trip

5 to the United States for this trial?

6 A. Yes, sir.

7 Q. Are you also being paid a standard witness fee

8 and meal allowance while you are here?

9 A. That's correct, sir.

10 Q. Is it your understanding that the United States

11 government will pay your salary while you're away from work

12 for this case?

13 A. Yes, sir.

14 MR. GARCIA: Your Honor, I have nothing further

15 but would ask to pass certain of the items that were

16 introduced through this witness.

17 THE COURT: Okay, first things first, however.

18 It is obvious, ladies and gentlemen, that you are suffering

19 from the heat as is everybody else. We're going to take an

20 early break, turn on the AC, make it as high as possible and

21 come back to court.

22 (Continued on next page)

23

24

25

3075

1 (Jury, witness, interpreter not present)

2 THE COURT: Roy, I know that you mentioned to me

3 at one point that you had some kind of an engagement before

4 some judge that you were worried about. Don't you have

5 some case coming up?

6 MR. KULCSAR: Your Honor, I can --

7 THE COURT: Do me a favor, write it out for me so

8 I don't have to figure out what the spelling is. I know

9 Salerno, but I have no clue as to what the number is. I

10 want to write letters to the judges. If you have the same

11 problem, write out the name of the case along with the

12 number of the indictment, and who the judge is who has it

13 because I am going to send them a note.

14 MR. GREENFIELD: Your Honor, with respect to that

15 I am going to give up the copy of the superseding

16 information. It's on for arraignment on Friday. I think

17 somebody will cover it for me.

18 THE COURT: Let me have it.

19 MR. KULCSAR: Would it go through Christmas time

20 or just like the next few months?

21 THE COURT: I don't know.

22 (Recess)

23 (In open court; jury not present)

24 MR. GREENFIELD: Your Honor, if I raise my voice

25 for examination, can we keep the air conditioning on?

3076

1 THE COURT: No. That air conditioner acts almost

2 like white noise so you can't hear. We can't do it.

3 MR. GARCIA: Judge, over the break I went over

4 the exhibits with defense counsel, and we've agreed on

5 certain items that the government would ask to pass to the

6 jury at this time.

7 THE COURT: What are they?

8 MR. GARCIA: They're on the table. I'll read the

9 numbers for your Honor: 411A through D, 414A and B, 417,

10 418, and 419.

11 THE COURT: I have 411D. I am straining to

12 figure out what the relevance of it is. 411B is Ayal Lumber

13 and Hardware Company bill for a water closet.

14 MR. GREENFIELD: Your Honor, I'd like those in.

15 THE COURT: You want them in? Okay.

16 (Continued on next page)

17

18

19

20

21

22

23

24

25

3077

1 EDGAR MALITAO, resumed, through the

2 interpreter.

3 (Jury present)

4 THE COURT: There is a collection of items which

5 were introduced, ladies and gentlemen. Give me those

6 numbers again, just so make sure we've got the right once?

7 414A through D, 418, 414A and B, 419, and 417?

8 MR. GARCIA: Yes, your Honor. I believe it's

9 411A through D.

10 THE COURT: 411A through D. Is that the whole

11 bunch?

12 MR. GARCIA: That's correct.

13 THE COURT: You want them passed now. Okay, hand

14 them to the jury and put the AC back on.

15 (Pause)

16 THE COURT: All right. Mr. Yousef, do you wish

17 to examine this witness?

18 DEFENDANT YOUSEF: No, your Honor.

19 MR. UDELL: No, your Honor.

20 THE COURT: Just hold on. I know you'd like the

21 air conditioning on, but we want to hear you.

22 CROSS-EXAMINATION

23 BY MR. GREENFIELD:

24 Q. Sir, with respect to the incidents you've

25 testified to did you in January of 1995 prepare any

3078

1 investigative reports for your superiors officers in the

2 Philippine National Police?

3 A. No, sir, I did not prepare any reports.

4 Q. Sir, do you speak English?

5 A. A little bit, sir.

6 Q. Just a bit?

7 A. Yes, sir.

8 Q. Sir, in 1995 were you in the Philippines

9 questioned by any member of the Federal Bureau of

10 Investigation?

11 A. Yes, sir.

12 Q. Who and when?

13 A. I don't remember the date, sir, but I remember

14 Mr. Pellegrino.

15 Q. Was it toward the end of 1995?

16 A. I don't remember, sir.

17 Q. Were any of your other compatriots at the

18 intelligence command interviewed at or around the same time?

19 A. Would you repeat that?

20 (Record read)

21 A. Personally me, are you talking about?

22 Q. Well, we'll start with you.

23 A. Yes, myself.

24 Q. And besides yourself, any of your co-workers at

25 the intelligence command, were they also interviewed at or

3079

1 around the same time by Agent Pellegrino?

2 A. I don't know, sir, if he talked to other persons.

3 Q. Where did this interview take place?

4 A. Inside the offices of my boss, Chief Inspector

5 Monteagudo.

6 Q. And was Chief Inspector Monteagudo present during

7 the course of the interview?

8 A. Sometimes.

9 Q. Well, how long did this interview take?

10 A. Just for a little bit of time. Less than an

11 hour.

12 Q. And your boss is coming in and out of the room

13 while it was going on?

14 A. Yes, sir.

15 Q. Was he going to talk to other people --

16 withdrawn. Do you know where he was going?

17 A. No, I don't.

18 Q. Now, sir, prior to being interviewed by the FBI

19 were you interviewed or questioned by any member of the PNP

20 with respect to what occurred in January of 1995?

21 A. No, sir, nothing.

22 Q. So after January of 1995, after whatever occurred

23 in January of 1995, you prepared no reports, correct?

24 A. That is correct, sir.

25 Q. And nobody questioned you until such time as

3080

1 Agent Pellegrino questioned you sometime in 1995?

2 A. Mr. Pellegrino and Mr. Mike Garcia.

3 Q. Do you know if they were taking notes? Did you

4 notice if they were writing things down as you were talking?

5 A. No, sir, I didn't see them taking any notes.

6 Q. Now, sir, after this meeting took place did you

7 again meet with any members of the United States

8 government -- withdrawn.

9 After this meeting did you have any further

10 interviews with agents or attorneys from the United States

11 government in the Philippines?

12 A. No, sir, just the exception of Mr. Mike Garcia

13 and Mr. Pellegrino.

14 Q. And that was only one time?

15 A. I believe it was a few times, sir.

16 Q. On the same day or different days?

17 A. Different days, sir.

18 Q. One right after the other or months apart?

19 A. I don't remember, sir.

20 Q. Did some occur in 1996?

21 A. Yes, sir.

22 Q. Where in 1996 in the Philippines did these

23 interviews occur?

24 A. In the same place, sir, in the offices of Chief

25 Inspector Monteagudo.

3081

1 Q. Was he present for those meetings, he being

2 Mr. Monteagudo?

3 A. Sometimes he's there.

4 Q. As you sit on the stand now what is the best

5 recollection you have of the number of meetings you have on

6 different days with Agent Pellegrino or Mr. Garcia or both?

7 A. I believe if I remember it's about four times

8 more or less.

9 Q. Sir, you came to the United States in July of

10 1996th month?

11 A. Exact date, sir, is July 3rd.

12 Q. Now, between January 14, 1995, and July 3, 1996,

13 how many times were you interviewed by higher authorities or

14 officers of the Philippine National Police Department with

15 respect to what you say occurred in January of 1995?

16 A. I don't remember any.

17 Q. Sir, when, before you come to the United States

18 are you told by any authority within the Philippine National

19 Police Department that you are going to go to the United

20 States?

21 A. No, sir.

22 Q. You had no notice from any member of the PNP that

23 your testimony was going to be required in this case?

24 A. No, sir, no one told me that.

25 Q. When for the first time ever do you learn that

3082

1 you are going to be a witness in the United States?

2 A. It was sometime around March, 1996, sir, when I

3 was instructed by Frank Pellegrino to get a passport.

4 Q. Where did he instruct you -- withdrawn. Where

5 did this instruction occur?

6 A. Inside the office of Chief Inspector Monteagudo.

7 Q. Did you seek the permission or the authority of

8 your superiors to come here?

9 A. No, sir, I didn't know anything about it. They

10 were the ones that spoke to each other.

11 Q. Do they know you're here today, your bosses in

12 the PNP?

13 A. Yes, sir.

14 Q. And when did you tell them you were coming?

15 A. Together with my boss, Chief Inspector

16 Monteagudo, we came here together.

17 Q. And did you come with anybody else besides Chief

18 Inspector Monteagudo?

19 A. Including Cesar Calmada, sir.

20 Q. Anybody else?

21 A. I believe there are other members of the PNP and

22 the intelligence command.

23 Q. Now, sir, when you boarded the plane in Manilla

24 to come to the United States and you rode from Manilla in

25 the plane to New York, did you discuss anything at all about

3083

1 what happened in January, 1995, with Chief Inspector

2 Monteagudo or Senior Police Officer 1 Calmada?

3 A. No, sir, we didn't have any conversation with

4 regards to this matter.

5 Q. And since July 3rd until today you're basically

6 in the same hotel as the other two men, isn't that correct?

7 A. That is correct, sir.

8 Q. Did you say one word to either one of them or

9 they say one word to you about what occurred in January of

10 1995?

11 A. No, sir, we didn't talk anything about this

12 matter.

13 Q. Now, sir, in January of 1995, before January

14 12th, did you have occasion as a member of the intelligence

15 command to go to 711 Quirino Avenue?

16 A. No, sir.

17 Q. Specifically did you in January of 1995 enter a

18 building called the Dona Josefa building in the Malate

19 section of Manilla?

20 A. No, sir, nothing.

21 Q. Prior to my --

22 MR. GREENFIELD: I'm sorry, your Honor.

23 THE COURT: It may be just the Josefa building.

24 THE WITNESS: No, sir, I did not enter such a

25 building. I don't know of it.

3084

1 Q. Prior to right now when you're hearing it in my

2 last question, had you heard anything occurred in the Josefa

3 or Dona Josefa building in January of 1995, in the Malate

4 section of Manilla?

5 A. Sir, I learned that through the papers.

6 Q. And when did you learn it?

7 A. I don't remember exactly, sir.

8 Q. Now, sir, with respect to your duties in the

9 intelligence command at Camp Crame, did you have perform any

10 function with respect to the Dona Josefa building?

11 A. Nothing, sir.

12 Q. Now, sir, how long has -- how long have you been

13 assigned to the intelligence command of the Philippine

14 National Police?

15 A. Since June of 1994, sir.

16 Q. And prior to that what was your assignment?

17 A. I was stationed in the 222nd -- 222d Mobile Force

18 command of the PNP command.

19 Q. And where is that located?

20 A. In Rizal, Philippines.

21 Q. Is that a military or police organization or

22 combination of both?

23 A. It's a police organization, sir.

24 Q. Now, sir, what was your job description in

25 January, 1995 in the intelligence command?

3085

1 A. I am an investigator and a team leader, sir.

2 Q. As investigator what are your duties?

3 A. My basic function is to do investigation.

4 Q. Any specific type of investigation?

5 A. No specific kinds of investigation, sir. Just as

6 I am assigned by my superior.

7 Q. Did you say on direct examination that you worked

8 for the counter intelligence unit of the intelligence

9 command?

10 A. That is correct, sir, the counter intelligence

11 group of the intelligence command.

12 Q. And would it be fair for me to state that the two

13 basic groups that you investigate are quote unquote the

14 communists and the Muslims?

15 MR. GARCIA: Objection.

16 THE COURT: I'll permit it.

17 A. Sir, I just do the job as it is directed by my

18 supervisor.

19 Q. But as -- doing that job do you quote unquote

20 investigate communists and Muslims?

21 MR. GARCIA: Objection.

22 THE COURT: No, I'll permit it. Go ahead.

23 A. No, sir.

24 Q. Now, the counter intelligence work you do, does

25 it relate to domestic problems?

3086

1 A. Sometimes it includes that, and anti-criminality.

2 Q. Sir, who is your immediate superior at the

3 counter intelligence unit of the PNP?

4 A. It's Police Chief Inspector Monteagudo.

5 Q. Is Inspector Serrano also a boss that you work

6 for?

7 A. Yes, sir, he is one of our officers.

8 Q. Who is superior to who in this instance? Is

9 Monteagudo superior to Serrano?

10 A. Chief Inspector Monteagudo is higher in rank than

11 Mr. Serrano.

12 Q. Now, sir, is your office located in the same

13 building where Chief Inspector Monteagudo and Inspector

14 Serrano and Senior Police Officer Calmada are located?

15 A. That is correct, sir.

16 Q. Now, who is your -- withdrawn.

17 Who is the big honcho at the intelligence

18 command?

19 THE COURT: No.

20 MR. GREENFIELD: Can't call them honchos?

21 THE COURT: No.

22 Q. Who is the superior officer in charge in the

23 intelligence command at Camp Crame?

24 A. The designation of our head would be a director

25 and that would be Rudolfo Garcia.

3087

1 Q. Now, sir, on January 11, 1995, or the early

2 morning hours of January 12, 1995, was this gentleman,

3 Rudolfo Garcia present at the intelligence command offices?

4 A. Could you repeat that, please?

5 (Record read)

6 A. Sir, at the time that I saw him was in the

7 evening of January 11, 1995. I saw him in the apartment

8 2010.

9 Q. And what time did you see him at apartment 2010?

10 A. It was in the evening of January 11th.

11 Q. And into the early morning hours of January 12th?

12 A. No, sir, they left after the evening of January

13 11th.

14 Q. Now, you say you also saw other superior officers

15 at the building at 2010 Singalong Street?

16 A. Yes, that is correct, sir, in the evening of

17 January 11, 1995.

18 Q. Now, what time is it that you arrive in the

19 vicinity of Singalong Street at building 2010?

20 A. Sir, I don't remember the exact time as to when

21 we arrived, but it was in the evening.

22 Q. Approximately?

23 A. In the apartment?

24 Q. Your arrival at 2010 Singalong Street,

25 approximately what time was that?

3088

1 A. Are you asking me about the apartment 2010?

2 Q. I'm asking you what time you got to the corner of

3 Singalong and Quirino.

4 A. More or less around 10 o'clock in the evening.

5 Q. Was SPO1 Calmada with you when you got there?

6 A. That is correct, sir, I was with SPO1 Calmada.

7 Q. And the first thing you did was go into the

8 apartment when you arrived at or about 10 p.m. on January

9 11, 1995?

10 A. Sir, that is not the way it happened. We waited

11 on the corner of Singalong and President Quirino Avenue, and

12 we waited for further instructions.

13 Q. How long did you wait for further instructions?

14 A. More or less about an hour, sir.

15 Q. Are you standing on the street with Calmada and

16 more or less eight other people?

17 A. I didn't notice where Mr. Calmada was exactly at

18 that time. I proceeded to apartment 2010.

19 Q. Let me see if I understand it. You stood on the

20 corner of Quirino and Singalong for about an hour, and then

21 you decided to go into the apartment; is that correct?

22 A. Sir, when we arrived there we stayed in our

23 vehicle, but by that time we were waiting for our orders.

24 When we got our orders, then that was the time we got out of

25 the vehicle and we went to apartment 2010.

3089

1 Q. Where did you quote unquote get your orders?

2 A. From our team leader.

3 Q. Where did you get them? Where were you located

4 when you got your orders?

5 A. We were in the corner of Singalong Street and

6 President Quirino Avenue.

7 Q. Now, you're not the team leader? I thought you

8 said you were the team leader?

9 A. No, sir, I am the assistant team leader at that

10 time.

11 Q. Is that in Filipino Taglog you just answered or

12 did you just answer that in a little bit of very good

13 English?

14 MR. GARCIA: Objection.

15 A. I said it in English with Filipino mixed in with

16 it.

17 Q. Now, sir, who was your team leader that evening?

18 A. Police Inspector Serrano.

19 Q. Now he came out to the van and gave you your

20 orders?

21 A. That is correct, sir.

22 Q. And the orders were to stay on the corner of

23 Quirino and Singalong Street and keep a close look?

24 A. Sir, when we originally got there we just stayed

25 in the corner of Singalong and President Quirino Avenue.

3090

1 After Inspector Serrano received his orders, then he

2 instructed us to do what we needed to do.

3 Q. That was basically the same thing you were doing?

4 A. Sir, that's based on what Inspector Serrano had

5 asked us to do. Whatever he asked us to do that's what we

6 did.

7 Q. Now, sir, after you received your marching orders

8 from Inspector Serrano how long was it before you say you

9 saw this taxi?

10 A. Time has elapsed already, sir, because by the

11 time we saw that taxi it was already the early morning of

12 the 12th.

13 Q. I asked how long after you spoke -- withdrawn.

14 How long after Inspector Serrano told you to keep

15 a close look, how much time transpired until you saw the

16 taxi?

17 A. More or less about two hours, sir.

18 Q. So at the time the taxi arrived you were in that

19 neighborhood four hours?

20 A. By the time we got that instruction, sir, we were

21 already positioned close by to the gate.

22 MR. GREENFIELD: Your Honor, I ask that the

23 answer be stricken and he answer the question that I posed

24 to him.

25 THE COURT: Restate the question.

3091

1 (Record read)

2 A. I am not sure whether it is that length of time,

3 sir.

4 Q. You see the woman exit a taxi and she goes to the

5 apartment -- withdrawn.

6 How many apartments are there in this building at

7 2010 Singalong Street?

8 A. It is one building, sir, and it has three

9 apartments. It has three doors.

10 Q. Prior to the woman exiting the taxi had you been

11 in any one of those apartments?

12 A. No, sir, I did not enter the apartment but I can

13 see from where I was, the apartment.

14 Q. Is your answer no, you were not in any apartment

15 whatsoever from the time you arrived until the woman got out

16 of the taxi?

17 A. That is correct, sir.

18 Q. Now, the woman exits the taxi. Are you on the

19 street, are you in the vehicle? Are you standing on a

20 corner of Quirino and Singalong?

21 A. Sir, I was inside our van.

22 Q. And your other men, were they deployed around the

23 area?

24 A. Sir, there was also other, another vehicle there

25 from the western police district.

3092

1 Q. But I'm asking you about the men that you were

2 the team leader of or assistant team leader. Were they in

3 the van or were they deployed on the street?

4 A. We were inside the van, sir.

5 Q. All of you?

6 A. Yes.

7 MR. GREENFIELD: Your Honor, is this a good time

8 to break?

9 THE COURT: Yes. Why not. All right, ladies and

10 gentlemen, 9:30 tomorrow. See you then.

11 (Continued on next page)

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3093

1 (Jury, witness, interpreter not present)

2 THE COURT: Paul, see what you can do about

3 asking the powers to be to leave on the AC tonight. Maybe,

4 Brian, you can do it. Make sure the AC is left on.

5 THE MARSHAL: Yes, your Honor.

6 MR. KULCSAR:

7 MR. KULCSAR: Your Honor, I appreciate your time.

8 Your Honor, I was contacted by Mr. Yousef over

9 the weekend, and he had mentioned to me he's having some

10 difficulty at the MCC as of the end of last week, but

11 apparently there has been a more serious recurring of it or

12 reoccurrence of problems.

13 Generally, it appears that on a number of

14 occasions persons on the floor where Mr. Yousef is

15 designated, in particular on last Thursday entered the cell

16 and search the cell, took out items, personal items of his

17 that he gets obviously through the MCC, shampoo and

18 toothpaste and things that have been the subject of a prior

19 application to the Court, and we had thought were long

20 resolved. But some of these things are kind of petty that

21 apparently now the situation is if he requires toothpaste

22 what he's supposed to do is tell the guard or whomever that

23 he requires toothpaste, and then they put the toothpaste on

24 the tooth brush and hand it to him.

25 Of a more serious matter, although that certainly

3094

1 is serious to someone that's at the MCC on a permanent basis

2 for a long time, during these random searches they've been

3 going through his legal papers, legal papers, things back

4 and forth to the court and preparation of cross-examination

5 and the like. By the time they are finished they are in

6 either a mess or extremely random circumstance and it makes

7 it very difficult for him to put them back together again.

8 Mr. Yousef has complained to the authorities in

9 there but apparently he has no redress.

10 From my own personal experience over the last few

11 weeks I know there has been a problem with Mr. Yousef

12 getting eye wash solution or contact lens wash solution, and

13 I have been told that it was taken care of about two weeks

14 go by and nothing happens.

15 I finally went to the MCC, having purchased the

16 items, and notified Mr. Menko from the MCC that I was going

17 to do that and he said, fine, you can bring it down.

18 THE COURT: Who is that, Menko?

19 MR. KULCSAR: He said, fine, bring it down, leave

20 it there. I got down there and attempted to leave it, and

21 was told that nobody was allowed to take it from me, and it

22 was left down there, they were going to take care of it.

23 Finally, they did get the one solution but they

24 still have not gotten the other which has been going on now

25 for well over a month. So to whatever extent your Honor can

3095

1 obtain any meaningful information as to what's going on,

2 your Honor, Mr. Yousef and I would appreciate it. I

3 apologize for having to bother your Honor with this.

4 THE COURT: I don't have any answers, but I'll

5 find out. That's all I can do.

6 MR. GREENFIELD: Your Honor, along the same

7 lines, if I can throw something in the mix, my client for

8 the first time over the weekend was allowed to go to the

9 roof, since February 6th of this year. Apparently they

10 videotaped his every move up there. I don't know why or

11 what, but I just want the record to reflect that that

12 occurred. And his cell, he tells me, is periodically being

13 searched, also.

14 THE COURT: That's more understandable than what

15 Mr. Kulcsar is talking about.

16 MR. GREENFIELD: Clearly.

17 THE COURT: I'll have to find out about this.

18 MR. KULCSAR: Thank you very much.

19 THE COURT: Okay, tomorrow morning.

20 MR. GREENFIELD: One last thing, your Honor, with

21 respect to this witness, we received no 3500 material

22 whatsoever so I assume, we didn't make the direct request,

23 but I assume there is absolutely no 3500.

24 THE COURT: I assume that there is none.

25 MR. GARCIA: That's correct, Judge.

3096

1 THE COURT: Okay. If there was some and you

2 didn't give it, you maybe affirmatively altered. All right.

3 (Adjourned to 9:30 a.m., Tuesday, July 30, 1996)

4 (Continued on next page)

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3097

1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 CESAR CALMADA.............2998 3004

4 EDGAR MALITAO.............3060 3077

5 GOVERNMENT EXHIBITS

6 Exhibit No. Received

7 421A and B and 422A through G ..................3003

8 414A and B,

9 413A, B, C, D and E,

10 411A, B, C and D;

11 431, 418, 419, 416 and 417........................3071

12

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3098

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 July 30, 1996 9:30 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY, MIRA RIVERA 24

25

3099

1

2

3 (In open court; jury not present)

4 THE COURT: Sit down, please.

5 MR. KULCSAR: Your Honor, I mentioned to other

6 counsel that defendants Yousef and Murad would like to raise

7 before the Court the issue of their religious day being

8 Friday.

9 THE COURT: You're talking about Juma which is

10 the sabbeth for Muslims is Friday. It takes 45 minutes.

11 I've already checked with the Iman about it. We'll have the

12 45 minutes off. Don't worry about it. Okay.

13 (Continued on next page)

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3100 1 EDGAR MALITAO, resumed, through the interpreter.

2 (Jury present)

3 THE COURT: David.

4 CROSS-EXAMINATION(Continued)

5 BY MR. GREENFIELD:

6 Q. Sir, when you enter the apartment at 2010

7 Singalong Street for the first time was that on January 11th

8 or January 12th?

9 A. That is the 11th of January, sir.

10 Q. And approximately what time in the evening was

11 that?

12 A. It was late in the evening of January 11th.

13 Q. Sir, when you entered -- withdrawn. You had been

14 on the street for approximately one hour before that. Did

15 you see any PNP officials entering the apartment?

16 A. Initially when we were just in the van I didn't

17 see any PNP officials at that time.

18 Q. Now, sir, when you entered the apartment what PNP

19 officials were already in the apartment?

20 A. Sir, when we initially entered the apartment --

21 when we initially went to the apartment 2010 from the

22 outside I can see that there are some people there.

23 Eventually from the inside you can see that Director Canson,

24 Director Garcia, Chief Inspector Monteagudo were there,

25 along with other personnel from the western police district.

3101 1 Q. Now, do you know an individual in the

2 intelligence command whose last name is Garay?

3 A. Yes, sir.

4 Q. What is his first name, if you know?

5 A. I believe it's Ferdinand, sir.

6 Q. And what is his rank?

7 A. At that time I believe he was a Senior Inspector.

8 Q. Sir, he serves -- withdrawn. Is he the basic

9 interrogator of people for the intelligence command or your

10 group in the intelligence command?

11 A. I don't know that, sir.

12 Q. Did you see him in the apartment on the evening

13 of January 11th?

14 A. If he was there, sir, I didn't notice him.

15 Q. Sir, when you were on the corner of Quirino and

16 Singalong, would you describe the lighting conditions on the

17 street that evening?

18 A. It was a little bit dark Singalong Street.

19 Q. Sir, you say the woman exits the taxi while you

20 and your men are in the van; is that correct?

21 A. I didn't say initially that that was a woman. I

22 said it was a person.

23 Q. Is that because of the lighting that you were

24 unable to ascertain if it was a woman as soon as she exited

25 the taxi?

3102 1 A. That is correct, sir.

2 Q. Now, sir, when this person exits the taxi you and

3 your men are in the van and you go approach the woman; is

4 that correct?

5 A. Sir, initially that woman had approached the

6 garage area of that apartment. We didn't know at that time

7 what, whether that person was a woman or a man. Eventually,

8 when she was on her way back and we were there by the gate

9 that's when we recognized that this was a woman.

10 Q. You say she approached the garage area of the

11 apartment? Did I hear you correctly?

12 A. Yes, sir, there is a garage area entering into

13 apartment 2010.

14 Q. Now, sir, approximately what time of the evening

15 is it that you first see this person who exits the taxi?

16 A. Sir, I did not see her in the evening. That will

17 be the early morning of the 12th.

18 Q. What time is it in the early morning of the 12th

19 that you see this woman?

20 A. More or less around 2 o'clock in the morning,

21 sir.

22 Q. Sir, you exit the van and you approach this

23 person as she's coming back from the apartment; is that

24 correct?

25 A. No, sir, I did not approach her. I was already

3103 1 by the area of the gate when she headed back towards the

2 direction of where the taxi was.

3 Q. Had she gone into the apartment, if you know?

4 A. Sir, I did not see her enter the apartment at

5 that time. What I saw was that she was in that area of the

6 apartment. She was looking around that particular door.

7 She was moving around, and then suddenly she hurriedly

8 headed towards the direction of where the taxi was.

9 Q. Sir, you were making your observations initially

10 from the corner of Quirino and Singalong Street; is that not

11 correct?

12 A. You are correct, sir, if we're talking initially.

13 Q. When the person arrived in the taxi you were

14 still on Quirino and Singalong Street, were you not?

15 A. Sir, by that time that the, that we saw this

16 person that was coming out of the taxi our vehicle had moved

17 from the original location that it was in, the corner of

18 Quirino and Singalong Street. What happened is the van had

19 moved closer and we were in front.

20 Q. So when you're in front and the taxi arrives and

21 the person enters through the gate, as you described it

22 earlier, you and your men exited the van; is that correct?

23 A. Yes, sir, after we told saw the woman, myself and

24 Mr. Calmada got out of the van.

25 Q. And you and he approached this person who turns

3104 1 out to be a woman?

2 A. Sir, we did not actually approach her. By that

3 time she was in the door area of 2010. She was standing

4 there. We were by the gate area, and she was the one that

5 approached us as she was coming back into the location of

6 the taxi.

7 Q. And is she the first person that you have a

8 conversation with at or about that time?

9 A. That's correct, sir. When she approached us then

10 I told her that I was a PNP officer.

11 Q. What is the next thing you say to her?

12 A. I asked her who she was looking for and she did

13 not respond.

14 Q. After this conversation, is that when you take

15 her into the apartment?

16 A. No, sir, that wasn't that particular time. I

17 then asked her another question as to whether the things in

18 the back of the taxi was hers, and she responded that they

19 was hers.

20 Q. And that was all part of this first conversation

21 you had with anybody on the street that evening, correct?

22 A. You are correct, sir.

23 Q. Sir, you asked her for her permission at that

24 time to search the bags. Is that what I just heard you say?

25 A. No, sir, not yet, sir. The asking for permission

3105 1 happened after I had got inside the apartment and I have

2 reported the incident to my superior, and I told him that

3 the woman and the bags that were coming from the taxi.

4 Q. Sir, did you take the bags out of the taxi after

5 you had this conversation with the woman?

6 A. That is correct, sir, after I had gotten the

7 permission of the woman.

8 Q. And then is that when you go to the apartment

9 with her?

10 A. Not yet, sir. The next thing that happened is I

11 spoke to the driver of the taxi and after a conversation he

12 opened the back compartment of the taxi. I then looked into

13 it, and I saw that there was nothing there, and after that,

14 that was the time that myself, the bags and the woman went

15 into the apartment.

16 Q. Who had the bags in their possession at that

17 time?

18 A. I had the bags, sir.

19 Q. Now, when all this is happening that you've just

20 described, what is SPO1 Calmada doing?

21 A. Sir, while this was all happening he was doing

22 the paying of the taxi fare and when we headed back to the

23 apartment I don't remember whether he was right in the back

24 of me following me.

25 Q. Did you have any further conversation with the

3106 1 woman on the street other than the conversation you just

2 described?

3 A. No, sir.

4 Q. Now, you and the woman enter the apartment and

5 you're not sure whether or not SPO1 Calmada is with you; is

6 that correct?

7 A. Sir, at that particular time when we were walking

8 towards the apartment I don't know if he was behind me, but

9 by that time that we were conducting the search of the bags,

10 Mr. Calmada was there.

11 Q. Sir, when you enter the apartment with the woman

12 is Gen. Canson in the apartment?

13 A. No, sir. They had departed for quite sometime.

14 Q. And is that true also for Senior Inspector

15 Monteagudo?

16 A. The same thing, sir, they had already departed

17 for quite sometime.

18 Q. When you enter the apartment was the door locked

19 or did you -- withdrawn.

20 Did you use a key to enter the apartment?

21 A. No, sir.

22 Q. Were the lights on in the apartment before you

23 entered?

24 A. That is correct, sir.

25 Q. And were any PNP officials in the apartment at

3107 1 the time you entered it with the woman?

2 A. That is correct, sir. Inside the apartment there

3 was our team leader, Inspector Serrano, and SPO1 Castro.

4 Q. Now, sir, when you enter the apartment with the

5 woman who was the first person you have a conversation with?

6 A. Sir, what I did was I reported to Inspector

7 Serrano.

8 Q. And at that time is it when the search of the

9 shopping bags occur?

10 A. Not yet, sir.

11 Q. Well, what precedes it, sir?

12 A. Sir, after I enter the apartment with Ms.

13 Santiago, I then reported to Inspector Serrano, and I

14 informed her of the woman and the bags that she had with

15 her. Inspector Serrano then had a conversation with the

16 woman, and asked her permission if we would be permitted to

17 look into the bags and her shoulder bag.

18 Q. Now, sir, as best you remember what were the

19 words that Inspector Serrano used to seek the permission of

20 the woman to search the plastic bags and the shoulder bag?

21 A. I can't remember the exact words, sir.

22 Q. Do you know the approximate words?

23 A. That I cannot tell you, sir.

24 Q. Now, sir, after people look into the bags and do

25 what they do, I believe you say a search takes place in the

3108 1 apartment; is that right?

2 A. That is correct, sir.

3 Q. Approximately what time did the search take

4 place?

5 A. Sir, I don't know exactly what time. After the

6 search of the bags that was in possession of Ms. Santiago

7 was finished he, my inspector then had conversation with her

8 about asking her permission to search the apartment. She

9 then consented and that's when that happened.

10 Q. Now, sir, how many police officers of the PNP

11 were in the apartment when this woman is being asked to give

12 her consent and permission to search the bags and the

13 apartment?

14 A. More or less there probably was about seven

15 personnel.

16 Q. And this is in the early morning hours of January

17 12th; is that right?

18 A. That is correct, sir.

19 Q. And this is when there are already two members of

20 the PNP in the apartment before she even walks in, isn't

21 that right?

22 A. You are correct, sir.

23 Q. And it was apparent to you when you walked in

24 that a search had already taken place, isn't that right?

25 MR. GARCIA: Objection.

3109 1 THE COURT: Sustained.

2 Q. Did you see evidence of a search already having

3 occurred in the apartment?

4 A. Sir, when we entered that apartment not even an

5 initial search had been done.

6 Q. Now, sir, -- incidentally, when you saw Gen.

7 Canson and Monteagudo and the rest of his men leave the

8 apartment, were they carrying any boxes or bags?

9 A. I don't know anything of that sort, sir. I

10 didn't notice anything.

11 Q. Well, you were sitting right out front when they

12 left, weren't you?

13 A. No, sir, I wasn't in the van. I was in the

14 garage area, and I didn't notice if they were carrying

15 anything or what.

16 Q. Sir, you conduct the search of the apartment

17 yourself in the early morning hours of the 12th, correct?

18 A. Not just myself, sir. Myself and the other

19 members of my team.

20 Q. Sir, how long does this search that you and the

21 members of your team conduct, how long does that take?

22 A. More or less an hour, sir.

23 Q. Now, sir, during the more or less of an hour, --

24 Incidentally, did you have a search warrant to

25 search this premise?

3110 1 A. No, sir. We didn't have a search warrant but we

2 asked the permission of Ms. Santiago and she gave her

3 consent.

4 Q. And you got that consent in writing, didn't you?

5 A. No, sir, it was a verbal consent.

6 Q. Now, sir, during this hour search -- withdrawn.

7 Before you went to the scene you received some

8 orders to go to Singalong Street, did you not?

9 A. Sir, when we left our offices I didn't know that

10 we were going to the corner of Singalong Street and

11 President Quirino Avenue. It was already there that I

12 realized that that's where we were going.

13 Q. Well, somebody was driving the van, weren't they?

14 A. You are correct, sir.

15 Q. It didn't go there by remote control. Somebody

16 told it to go there?

17 MR. GARCIA: Objection.

18 THE COURT: I assume that somebody said: We're

19 going there, but this man wasn't the man who did it.

20 Q. You were the assistant team leader that night?

21 A. That is correct, sir, but I wasn't the person

22 driving that evening.

23 Q. I understand. Now, sir, before you left the

24 intelligence command at Camp Crame did anybody of more or

25 less eight or nine men bring a video camera or a regular

3111 1 camera to the vicinity of Quirino and Singalong Street?

2 A. No, sir, I didn't notice anybody had that.

3 Q. Sir, during this one-hour search or so that you

4 conducted you say, on direct examination, you identified

5 certain documents, that you found things in a table in the

6 bedroom in the drawer and in a closet; is that correct?

7 A. You are correct, sir.

8 Q. Now, sir, did anybody in the apartment at the

9 time or soon after the time you found it in the apartment

10 photograph the items you say you found in the location you

11 say you found them?

12 A. No, sir, there wasn't.

13 Q. Did you place your initials and the date, January

14 12, 1995, in the corners of any or all of the documents you

15 say you found in the apartment where you say you found them?

16 A. No, sir, I did not put any date or markings.

17 Q. Did you put your initials on them?

18 A. No, sir, I did not put any marks on it.

19 Q. Sir, the apartment itself, was it furnished?

20 A. Sir, at that time my observations of that

21 apartment was the people that were there had just moved in,

22 things were still scattered around, and it wasn't yet fully

23 furnished.

24 MR. GREENFIELD: May I have the exhibits?

25 Q. Sir, I show you exhibits 411A through D. Are

3112 1 those among the items that were seized that evening from the

2 apartment?

3 A. This is a part of the things that I had collected

4 from the apartment, sir.

5 Q. I'm talking about the documents that you seized.

6 Are those among the documents that you seized that evenings

7 from the apartment?

8 A. You are correct, sir.

9 Q. Now, sir, if you look at 411A, could you read the

10 top of it and tell us what that document represents?

11 A. S. M. Ortega cash invoice.

12 Q. And does that represent a purchase of certain

13 items?

14 A. That is correct, sir.

15 Q. Without going specifically into the items, what

16 type of items were purchased by the individual who made that

17 purchase?

18 A. I don't know what these things are, sir, except

19 that I just read it under the name Carol Santiago.

20 Q. What is the date these purchases are made?

21 A. It is written here in here, 1/7/95. I guess this

22 is January, '95.

23 Q. And what about B? What is the date of purchase

24 on 411B?

25 A. It's the same thing, January 7, 1995.

3113 1 Q. What is purchased that day?

2 A. I don't know. I'm not sure but these things are

3 I can not fully read them.

4 Q. Who is the seller?

5 A. It's the same thing, S. M. Ortega.

6 Q. What does S. M. Ortega sell? Does it say on top?

7 A. It's says shopping management corporation. I'm

8 not exactly sure what things they sell.

9 Q. Now, sir, go to C, 411C. Does that represent

10 purchases by some person again?

11 A. Yes, sir, under the name Ms. Santiago.

12 Q. And what is the date of purchase on that receipt?

13 A. I can't read it exactly. It looks like January,

14 1995.

15 Q. Sir, who is the seller or vendor on that bill or

16 invoice?

17 A. The same thing, S. M. Ortega.

18 Q. Can you read the items that were purchased there?

19 A. I believe it's a TV rack.

20 Q. Sir, go to 411D. What's the date of purchase on

21 that receipt?

22 A. What is written in the receipt is January 9,

23 1995.

24 Q. Can you see the name of the person who made the

25 purchase?

3114 1 A. There is a name written here but I cannot read

2 it, sir.

3 Q. What type of purchases were made by that

4 individual?

5 A. A tray, a water closet.

6 Q. Where was that purchased? Do you know who was

7 the seller?

8 A. What is written on this receipt is Ayala Lumber

9 and Hardware.

10 Q. Now, with respect to these purchase receipts,

11 were there others besides these four that you found that

12 evening in the apartment on January 12, 1995?

13 A. I don't remember, sir, other than these things

14 that you have in front of me here.

15 MR. GREENFIELD: Your Honor, I'd like to show the

16 witness a document.

17 THE COURT: Yes.

18 (Handed to witness)

19 THE INTERPRETER: Excuse me. He's having

20 difficulty in reading the document. He doesn't have any

21 glasses.

22 THE COURT: Can't help you, my eye glasses,

23 although I'm trying, but I don't think it's going to be a

24 big help. Here, try those. You never know.

25 THE WITNESS: Sir, 411B, 411C and 411D are here

3115 1 in this picture.

2 Q. 411A in the picture?

3 A. No, sir.

4 MR. GREENFIELD: Your Honor, I think the cavalry

5 is on the way. I've got a magnifying glass.

6 THE COURT: Do you?

7 MR. GREENFIELD: Yes, it's being retrieved at

8 this moment.

9 THE COURT: Okay. This other document, this

10 picture.

11 MR. GREENFIELD: Yes, sir.

12 THE COURT: You want to offer that?

13 MR. GREENFIELD: Yes, I do, your Honor.

14 THE COURT: Any objection?

15 MR. GARCIA: No objection.

16 (Defendant's Shah Exhibit J received in evidence)

17 Q. Will this help you?

18 (Witness handed magnifying glass)

19 A. (In English) Thank you, sir.

20 THE COURT: When we get to a certain age we all

21 need them.

22 Q. Now, sir, if you look at the document with the

23 photographs that was just marked in front of you, the lower

24 left-hand corner there is a receipt from a hardware store,

25 is there not?

3116 1 A. Yes, sir.

2 Q. What is the date of purchase with respect to the

3 items that were bought at the hardware store?

4 A. I believe this says 11 January, 1995.

5 Q. Who is the purchaser?

6 A. There is no name written.

7 Q. Sir, does it indicate on that receipt what was

8 purchased?

9 A. I'm sorry, but I'm unable to read it, sir.

10 THE COURT: Let me have it. It's not your eyes.

11 It's somebody's handwriting. The handwriting is terrible.

12 Q. Sir, if you put that down, I'll show you some

13 other items.

14 Sir, I just placed in front of you certain pieces

15 of evidence which I think you say were seized in a closet in

16 the bedroom; is that right?

17 A. That is correct, sir.

18 Q. Now, were these documents in those plastic

19 folders when you found them?

20 A. No, sir.

21 Q. Where in the closet were they?

22 A. I don't remember exactly, sir, but they were

23 inside the closet.

24 Q. Well, were they by themselves? Were they on a

25 shelf? Were they on the floor? Do you have any

3117 1 recollection at all where in the closet you found them?

2 A. I'm not sure. It may be on the floor of the

3 closet.

4 Q. Were there other documents with them?

5 A. I don't remember, sir.

6 Q. Did you seize any other documents from that

7 closet?

8 A. I don't remember, sir, except for this maps.

9 Q. Did you make any report or handwritten notes on

10 January 12, 1995, as to where you found certain things?

11 A. No, sir, I did not make any report.

12 Q. Sir, you also, I believe on direct examination,

13 said you found a piece of paper in a book. Is that correct?

14 A. That is correct, sir.

15 Q. And this book, did you seize that book and take

16 that, also?

17 A. Yes, sir.

18 Q. Can you describe the book?

19 A. This book is about diving.

20 Q. Now, sir, this book that you found, or piece of

21 paper -- excuse me -- 431 in evidence, is it true as with

22 the others you did not put your initials or the date of

23 January 12, 1995 on that document?

24 A. That is correct, sir.

25 Q. Now, after this one-hour search takes place,

3118 1 correct me if I'm wrong, I believe you say that you and at

2 least one other PNP official stays behind and everybody goes

3 with Carol Santiago and her consent over to Camp Crame.

4 A. There was five of us that was left there in the

5 apartment, sir. Ms. Santiago left with the rest of them.

6 Q. Sir, the five that remained in the apartment

7 continued to search?

8 A. No, sir, we didn't anymore.

9 Q. There comes a time that you return to Camp Crame,

10 also, is that not right?

11 A. That is correct, sir.

12 Q. And is it fair for me to say that the documents

13 that you say you seized on January 12th are handed over to

14 somebody at Camp Crame?

15 A. That is correct, sir.

16 Q. Who is that person that you give it to or give

17 them to I should say?

18 A. Our chief commander at that time, Chief Inspector

19 Monteagudo.

20 Q. After you give the documents to Chief Inspector

21 Monteagudo in the early morning hours of January 12, 1995,

22 do you see those documents ever again in Camp Crame?

23 A. There were occasions that I saw those documents

24 when my superior was asking me questions.

25 Q. Specifically -- when you say superior, you're

3119 1 talking about Serrano or Monteagudo?

2 A. Chief Inspector Monteagudo.

3 Q. When for the first time does he ask you questions

4 about the documents?

5 A. Sir, except for that time when I turned over the

6 documents to Chief Inspector Monteagudo, I don't remember

7 exactly the times during which he showed me or asked me

8 questions with regard to the documents.

9 Q. Was it right before you came to the United

10 States?

11 A. No, sir, it's been quite sometime, around 1995.

12 Q. Did he ask you to go to the hardware store and to

13 find out what was purchased?

14 A. No, sir, he did not.

15 Q. Did he ask you to read a document for him?

16 A. No, sir.

17 Q. What did he ask you to do with respect to these

18 documents?

19 A. Such as where we found the documents, whether

20 this was in Carol's possession or were this found in the

21 house.

22 Q. But you made no marks on any of the documents to

23 indicate where you found them, isn't that correct?

24 A. You are correct, sir.

25 Q. You took no photographs of the documents in place

3120 1 to ascertain where you found them, isn't that correct?

2 MR. GARCIA: Objection.

3 THE COURT: We've been through that.

4 Q. When is it that he asked you these questions?

5 A. Sir, I don't remember.

6 Q. Was it right before you were questioned by the

7 FBI?

8 A. Before the FBI.

9 Q. Now, sir, when you see the foreigner in the

10 building, and you identified the man sitting at the end of

11 the table at 2010 Singalong Street, was he handcuffed?

12 A. At that time, sir, I didn't notice whether he was

13 handcuffed.

14 Q. Was he blindfolded?

15 A. I did not notice that, sir.

16 Q. If he was, you would have noticed it, wouldn't

17 you?

18 MR. GARCIA: Objection.

19 THE COURT: Sustained.

20 Q. Now, sir, January 12th, 13th or 14th, did you

21 ever see the man sitting at the end of the table handcuffed?

22 A. Sir, I saw Mr. Shah on the afternoon on the 13th

23 and in the afternoon of the 14th in our offices and he was

24 handcuffed.

25 Q. Now, sir, when you saw him on the 13th and the

3121 1 14th, -- withdrawn.

2 When did you learn that the man's name was Shah,

3 Mr. Shah?

4 A. On the 13th.

5 Q. Did you ever have any conversation was Mr. Shah?

6 A. I did not have a personal conversation with him,

7 sir. I learned that his name was Wali Khan.

8 Q. Sir, were you present when he was interrogated by

9 members of the intelligence command?

10 A. I don't know, sir, if an interrogation happened.

11 I was not there.

12 Q. On January 13th or 14th at any time were you

13 present in a room or a cell with the individual you call

14 Mr. Shah or Wali Khan while he was being interrogated?

15 MR. GARCIA: Objection.

16 THE COURT: You just asked him that.

17 MR. GREENFIELD: I didn't think it was that

18 inclusive, your Honor. Okay, fine.

19 Q. Sir, are there cells within the offices of the

20 intelligence command where Major Monteagudo has his office?

21 A. We have a small cell inside our office.

22 Q. Whose office is that cell located in?

23 A. In the offices of Chief Inspector Monteagudo at

24 the CIG.

25 Q. Now, sir, is that the cell where Mr. Shah was

3122 1 kept?

2 A. I believe so, sir.

3 Q. And that's on the second floor of the building

4 where you have your offices?

5 A. No, sir, our offices are on the first floor.

6 Q. And Mr. Monteagudo's office is on the first

7 floor, also?

8 A. That is correct, sir.

9 Q. Are there any other cells in that building where

10 your particular group has its offices?

11 A. No, sir.

12 Q. Do you know an individual SPO4 Mariano?

13 A. I know of an SPO3 Mariano, sir.

14 Q. Now, he's been promoted.

15 MR. GARCIA: Objection.

16 Q. Is he in the internal -- withdrawn. Is he in the

17 intelligence command?

18 A. Yes, sir, he works with me.

19 Q. And do you know what his duties were on January

20 12th, 13th or 14th of 1995?

21 A. No, sir, I don't.

22 Q. Did you see him at all, do you remember seeing

23 him on those days?

24 A. I didn't notice if I did, sir.

25 Q. Now, sir, the intelligence command, is it a unit

3123 1 within Camp Crame that's separate from the other units?

2 A. You are correct, sir.

3 Q. How many buildings does the intelligence --

4 withdrawn. How many buildings are there within the

5 intelligence command?

6 A. Three buildings, sir.

7 Q. Now, the three buildings, they're all in

8 operation and use?

9 A. That is correct, sir.

10 Q. Any warehouses on the grounds of the intelligence

11 command?

12 A. I don't know in that whole perimeter. In our

13 offices there is not.

14 Q. Now, with respect to the perimeter, around the

15 perimeter of the intelligence command are there wire fences?

16 A. No, sir, all we have is a concrete wall.

17 Q. That surrounds the entire command?

18 A. That is correct, sir.

19 Q. Is there barbed wire on top of the wall?

20 A. No, sir, there's not.

21 Q. Now, sir, are there -- would you agree with the

22 statement that the intelligence command is a highly secure

23 area?

24 A. In my opinion and in my understanding it is, sir.

25 Q. There are many guards around the perimeter and in

3124 1 the building, isn't that right?

2 A. We have guards at the main gate, sir.

3 Q. Sir, are there military personnel used to guard

4 the grounds of Camp Crame itself?

5 A. No, sir, we don't have any military guards at

6 Camp Crame. What we have is what you would call base

7 police.

8 Q. And the base police guard the different

9 buildings?

10 A. Not the building, sir, the gates of Camp Crame.

11 Q. And the perimeter?

12 A. Yes, sir.

13 Q. Now, sir, January 12, 13 time period, was that a

14 high alert area in time?

15 A. That is the truth, sir. We were on alert at that

16 time.

17 Q. And there were extra guards on the grounds of the

18 intelligence command, is that not right?

19 A. That I don't know, sir.

20 Q. Now, sir, do you know an individual named Chief

21 Inspector Ferro?

22 A. That is correct, sir.

23 Q. In January, the 12th, the 13th, the 14th of 1995,

24 were you in his offices?

25 A. No, sir, I wasn't.

3125 1 Q. Do you know an individual named Richard Macachor?

2 A. It is only now that I knew Mr. Macachor.

3 Q. How did you know him now?

4 A. He was part of the group that came here to New

5 York City.

6 Q. But you didn't discuss anything with him about

7 the case?

8 A. No, sir, nothing.

9 Q. Now, sir, do you have knowledge of the workings

10 of computers?

11 A. I know a little bit, such as Word Start.

12 Q. Now, sir, during January of 1995, were you given

13 access to a laptop computer?

14 A. No, sir, I didn't.

15 Q. Now, the individual you identified at the end of

16 the table as Mr. Khan or Mr. Shah, do you know if he was

17 arrested on January 11th or 12th?

18 A. I don't know if any arrest was made for him, sir.

19 MR. GREENFIELD: I have no further questions,

20 your Honor.

21 MR. GARCIA: Nothing, your Honor.

22 THE COURT: Okay, step down, thank you.

23 (Witness and interpreter excused)

24 THE COURT: Call your next witness.

25 MR. GARCIA: Alex Monteagudo.

3126 1 (Alex Paul Monteagudo, and interpreter Mira

2 Rivera present)

3 MR. GREENFIELD: Your Honor, I'd like at the

4 appropriate time, appropriate to the jury, to have the jury

5 see the photograph that I offered with the use of the

6 magnifying glass.

7 THE COURT: Yes, get the magnifying glass. We

8 can show it to them right now, but for sure give them the

9 magnifying glass.

10 MR. GREENFIELD: Absolutely.

11 THE COURT: All right, sit down, sir, we're going

12 to wait. This might be an appropriate time to break, also.

13 Just leave that aside and we'll take care of it.

14 (Jury not present)

15 (Continued on next page)

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3127 1 THE COURT: Mr. Witness, I know it may be

2 disappointing being called out here and not being asked to

3 testify, but believe it or not you are proof positive now

4 that the jury is made up of human beings. All right, step

5 down. We'll start again as soon as the problem is resolved.

6 (Recess)

7 (In open court; jury present)

8 THE COURT: Ladies and gentlemen, a question came

9 up. There are certain things I feel very strongly about.

10 One of them is family and don't understand people who don't

11 feel strongly about family. There are people who don't care

12 because, I guess, they're wrapped up in doing other things.

13 But I'm not one of them, and I understand when family calls

14 there are times you need to go.

15 I understand that a family problem has arisen

16 with one of the jurors which will require her to attend a

17 funeral on Friday. I am sorry for your loss. I can't do

18 anything for the person who is dead or for you except for

19 one thing, and that's to let you go to the funeral, because

20 family at a time like that need to be together, so that you

21 are just going to the funeral and that's all there is to it

22 and the rest of us will break for the day.

23 Be prepared, guys, to have Friday off, not

24 because we want it that way, but because the man upstairs

25 says that's the way it should be.

3128 1 All right. Now you have something to look at.

2 Go to it.

3 (Defendant Shah Exhibit J passed to the jury)

4 (Pause)

5 ALEX PAUL MONTEAGUDO,

6 Called as a witness by the government,

7 Having been duly sworn, testified,

8 Through the interpreter as follows:

9 THE COURT: All right, be seated, please.

10 MR. GARCIA: May I proceed, Judge?

11 THE COURT: Sure. We all remember Mira Rivera,

12 our kind interpreter. Go ahead.

13 MR. GARCIA: Thank you.

14 DIRECT EXAMINATION

15 BY MR. GARCIA:

16 Q. Sir, who do you work for?

17 A. I work at the Philippine National Police.

18 Q. Are you assigned to a particular command at the

19 Philippine National Police?

20 A. Yes, sir.

21 Q. What command is that?

22 A. Intelligence command.

23 Q. What is your present rank?

24 A. I'm a police superintendent.

25 Q. How long have you been with the PNP?

3129 1 A. Five years, sir.

2 Q. Prior to joining the PNP where did you work?

3 A. With the Philippine constabulary, sir.

4 Q. How long were you with that organization?

5 A. Ten years, sir.

6 Q. Now, sir, I'd like to direct your attention to

7 January of 1995. What was your position in the PNP at that

8 time?

9 A. I was the group commander of the counter

10 intelligence group of the intelligence command.

11 Q. In January of 1995, were you involved in the

12 investigation relating to a search that occurred at the

13 Josefa apartment building?

14 A. Yes, sir.

15 Q. Generally what was your role in that

16 investigation?

17 A. I was assigned to follow up on leads and

18 information from evidence gathered from room 603.

19 Q. Now, I'd like to direct your attention

20 specifically to January 11, 1995. Do you recall whether you

21 were working on any leads of that type on that date?

22 A. Yes, sir.

23 Q. Do you recall the specific leads you were working

24 on on January 11th?

25 A. We were following up on a pager number.

3130 1 Q. Where did you obtain the pager number from?

2 A. This was given to me by my director.

3 Q. And when you say the director, do you mean Col.

4 Garcia?

5 A. Yes, sir.

6 Q. Could you tell us what steps you took after you

7 received this pager number?

8 A. We learned the identity of the subscriber to that

9 pager number, the person's address, and other information.

10 Q. After you obtained this information what did you

11 do next?

12 A. I organized a surveillance team and I sent this

13 to the address of the subscriber so that we could hold a

14 stakeout of this particular person.

15 Q. Do you recall what address you sent the

16 surveillance team to?

17 A. Yes, sir.

18 Q. What was that?

19 A. It's 2212 Natividad Street, Santa Cruz, Manilla.

20 Q. So we're clear, what date did you send the

21 surveillance team out on?

22 A. The 11th of January, 1995.

23 Q. Do you recall approximately what time it was that

24 the team left?

25 A. Yes, sir.

3131 1 Q. What was that?

2 A. About 1 in the afternoon.

3 Q. Who was the team leader of the surveillance team?

4 A. Captain Ferdinand Garay.

5 Q. After sending out the surveillance team did you

6 take any other investigative steps with respect to the

7 beeper subscriber information?

8 A. Yes, sir.

9 Q. Could you describe for us what you did?

10 A. Around afternoon I ordered a female colleague to

11 make a pretext call to the subscriber's number.

12 Q. Was this also on January 11th?

13 A. Yes, sir.

14 Q. Were you present when that call was made?

15 A. Yes, sir, and I was listening.

16 Q. After the call was made, what did you do?

17 A. I ordered my team to follow the first woman that

18 exits from that address and to follow her wherever she went.

19 Q. When you say, that address, do you mean the

20 Natividad Street address?

21 A. Yes, sir.

22 Q. Did there come a time when you received a report

23 from Capt. Garay?

24 A. Yes, sir.

25 Q. What did you do after receiving that report?

3132 1 A. I went to Singalong Street, Malate, Manilla.

2 Q. Did you go to any particular address on Singalong

3 Street?

4 A. Yes, sir.

5 Q. Do you recall the address number?

6 A. Yes, sir.

7 Q. What is that?

8 A. 2010 Singalong Street, Malate, Manilla.

9 Q. Do you recall approximately what time it was when

10 you arrived at that address?

11 A. It was around 7 in the evening, sir.

12 Q. What happened after you first arrived at

13 Singalong Street?

14 A. I organized my surveillance team so that we would

15 have unobstructed view of the apartment that we were

16 following.

17 Q. First, when you say the apartment, do you mean

18 number 2010?

19 A. Yes, sir, that's an apartment.

20 Q. And your surveillance team, was Capt. Garay there

21 when you first arrived at Singalong Street?

22 A. Yes, sir.

23 Q. Now, sir, where did you position yourself while

24 the surveillance of this address was going on?

25 A. I positioned myself in a store on the opposite

3133 1 side of the street about 30 meters from the apartment.

2 Q. And did you see the apartment from where you were

3 stationed?

4 A. Yes, sir.

5 Q. Did there come a time when you saw any person

6 exit number 2010?

7 A. Yes, sir.

8 Q. How many people did you see exit the first time?

9 A. One person.

10 Q. Was it a man or a woman?

11 A. A woman, sir.

12 Q. Did you see this person come out of number 2010?

13 A. Yes, sir.

14 Q. Which door in 2010 did you see the woman come out

15 of?

16 A. It's the third door from the street.

17 Q. Would that be the third door as you're facing the

18 apartment to the right?

19 A. It's the third door from the left to the right.

20 Q. Did you see what the woman did after she exited

21 that door?

22 A. Yes, sir.

23 Q. Could you describe that for us?

24 A. She looked around from right to left as if she

25 was looking for someone and she went into the store --

3134 1 MR. GREENFIELD: Objection.

2 THE COURT: Yes. That part, ladies and

3 gentlemen, she look around from right to left is fine, but

4 the rest is taken out.

5 Q. After she looked around what did she do?

6 A. She went to the store to make a phone call.

7 Q. Is that the same store that you were stationed

8 in?

9 A. Yes, sir.

10 Q. And what did the woman do after using the phone?

11 A. She returned to the apartment.

12 Q. What do you recall happening next that day?

13 A. Around perhaps 9 that night we saw a woman leave

14 that apartment and ride away in a motorcycle.

15 MR. GREENFIELD: Objection, your Honor, to the

16 "we." It's what this witness saw.

17 THE COURT: Well, I think he's trying to tell

18 what he saw. All right, go ahead.

19 Q. Was the woman alone?

20 A. No, sir.

21 Q. Who was she with?

22 A. She was with a gentleman and he was driving the

23 motorcycle.

24 Q. Was this the same woman you had seen earlier in

25 the store?

3135 1 A. Yes, sir.

2 Q. Did you try to stop the motorcycle at this time?

3 A. We would have wanted to, but we couldn't.

4 Q. Why couldn't you?

5 MR. GREENFIELD: Objection, your Honor.

6 THE COURT: No, I'll permit it. Go ahead.

7 A. Because at that time Singalong Street had become

8 a one-way street and the motorcycle went against the flow of

9 the traffic.

10 Q. After the motorcycle left what did your team do?

11 A. I made a report to my director so that he can

12 decide -- so that he can make a decision that we should stay

13 in that premise, in that sight.

14 Q. When you say director, again, you mean Col.

15 Garcia?

16 A. Yes, sir.

17 Q. Did your team remain at that site after you spoke

18 with Col. Garcia?

19 A. Yes, sir.

20 Q. Did there come a time when either of the

21 individuals you observed on the motorcycle returned to this

22 address?

23 A. Yes, sir.

24 Q. Who returned?

25 A. The gentleman, sir.

3136 1 Q. Approximately how much later was it after this

2 person first left that he returned to Singalong Street?

3 A. About one hour, sir.

4 Q. How did he arrive?

5 A. He was in a motorcycle.

6 Q. Did you see what this man did when he returned to

7 Singalong Street?

8 A. He brought the motorcycle inside the apartment.

9 Q. Is this the same door, this third door that you

10 described earlier?

11 A. Yes, sir.

12 Q. What did you do next?

13 A. I organized a team with Capt. Garay, SPO3 Hidalgo

14 and myself and we approached the apartment.

15 Q. Did you enter the apartment at this time?

16 A. No, sir.

17 Q. Did there come a time when the man exited number

18 2010?

19 A. Yes, sir.

20 Q. Approximately how long was he inside?

21 A. About 20 to 30 minutes.

22 Q. When he came out did he have a motorcycle with

23 him?

24 A. No, sir.

25 Q. What happened when the man exited 2010?

3137 1 A. As soon as he got out of the door I approached

2 him and I introduced myself as a police officer.

3 Q. Could you describe the appearance of this man for

4 us?

5 A. He's stocky built, fair skin. He has brownish

6 hair and he seemed to be as tall as me. He was wearing a

7 jacket and he was carrying bags.

8 Q. How many bags was he carrying?

9 A. He had three bags.

10 Q. Looking around the courtroom today, sir, do you

11 see that person that you've just been describing for us?

12 A. Yes, I see him.

13 Q. Could you point him out, please?

14 A. (Pointing) It's that gentleman who's seated at

15 the end of the table, the long table.

16 MR. GREENFIELD: Identifying my client, your

17 Honor.

18 A. He's wearing light blue.

19 MR. GARCIA: For the record identifying the

20 Defendant Shah.

21 THE COURT: Yes.

22 Q. After you had this conversation with the

23 Defendant Shah what did you do next?

24 A. I told this gentleman would it be possible to

25 continue this conversation inside his apartment.

3138 1 Q. Did he agree?

2 A. Yes, sir.

3 Q. Did you enter apartment 2010 at this time?

4 A. Yes, sir.

5 Q. Where did you go once you got inside the door to

6 2010?

7 A. I stood by the dining table inside the apartment.

8 Q. Where was the Defendant Shah?

9 A. I asked him to be seated on the couch.

10 Q. Sir, could you see the motorcycle when you

11 entered 2010?

12 A. Yes, sir, it was right by the door.

13 Q. Could you describe that motorcycle for us?

14 A. It was a red Honda 125, a Scrambler, it's what we

15 call a dirt bike.

16 Q. What did you do after you seated the Defendant

17 Shah on the couch?

18 A. I asked him would it be possible to look at the

19 contents of the bags that he had set down.

20 Q. What was his response?

21 A. He agreed.

22 Q. Did you look in the bags at this time?

23 A. Yes, sir.

24 Q. Could you describe for us how this was done?

25 A. I took the bag to the dining table and in his

3139 1 full line of vision I started taking out the items from the

2 bag one by one, and set them on the dining table.

3 MR. GREENFIELD: Objection as to his description

4 of what the individual saw.

5 THE COURT: No, go ahead.

6 Q. Sir, do you recall any of the items that he that

7 you saw in Mr. Shah's bag that day?

8 A. Yes, sir.

9 Q. Generally what do you remember seeing?

10 A. In the bag I saw several passports, diary,

11 clothing and many documents.

12 Q. Do you recall any of the names on the passports

13 you saw that day?

14 A. Yes, sir.

15 Q. What names do you recall?

16 A. I remember Wali Khan, Hahsen Grabi, Abdul Hakim

17 Murad, and a name I don't remember, but it was a Saudi

18 passport.

19 MR. GARCIA: Your Honor, at this time could the

20 witness be shown Government Exhibits 401, 402, 403, 404,

21 405, 406 and 407 marked for identification.

22 Sir, if you would look through those items and

23 tell us whether or not you recognize them.

24 A. Exhibit 401, yes, I recognize this. I got this

25 from the bag. Exhibit 402, I recognize this. This came

3140 1 from the bag. Exhibit 403, this also came from the bag.

2 This is one of the items.

3 Exhibit 404, this is also along with the items

4 that I got from that bag. Exhibit 405, I took this out of

5 this bag, too. Exhibit 406, I also took this from the bag.

6 Exhibit 407, this is also along with the items that I found

7 in the bag.

8 Q. When you say, found in the bag, was that on the

9 night of January 11, 1995?

10 THE INTERPRETER: Could I hear the date again,

11 please?

12 Q. The night of January 11, 1995.

13 A. Yes, sir.

14 Q. Are those exhibits 401 through 407 in the same or

15 substantially the same condition they were in when you first

16 saw them that night?

17 A. The color is now different. It's stained and

18 discolored. When we got it it was clean.

19 Q. Other than the color, are they in the same

20 condition?

21 A. No, sir.

22 Q. What else is different about them?

23 A. The stickers, sir.

24 MR. GARCIA: Your Honor, at this time the

25 government would offer Government Exhibits 401 through 407.

3141 1 Sir, so we're clear when you say, "the sticker,"

2 you mean the Government Exhibit sticker?

3 A. Yes, that's it, sir.

4 (Pause)

5 (Government's Exhibits 401 through 407 received

6 in evidence)

7 Q. Sir, if you take a look at the items that are

8 now --

9 THE COURT: Which items? I have them.

10 If you feel a need to step out, this is the time

11 to do it.

12 (Juror No. 8 not present)

13 (Pause)

14 (Juror No. 8 present)

15 THE COURT: Go ahead.

16 Q. Superintendent Monteagudo, if you would also put

17 your gloves on and take a look at Government Exhibits 401

18 through 407 now in evidence.

19 Could you identify by Government Exhibit number

20 and then read us the country of origin of the passport as

21 well as the name of the passport holder for each of those

22 items.

23 A. Government Exhibit 405 is a Pakistani passport

24 under the name of Abdul Hakim Murad. Government Exhibit 406

25 a Pakistan passport is also Abdul Hakim Murad. Government

3142 1 Exhibit 407 is also Pakistani passport, Abdul Hakim Murad.

2 Government Exhibit 403 is a Saudi Arabian passport under the

3 name of Farhan Aldusary. Exhibit 404 is a Pakistani

4 passport. The name is Wali Khan. Government Exhibit 401 is

5 an Afghanistan passport. The name is Wali Khan Amin Shah.

6 Government Exhibit 402 is a passport from Norway. The name

7 is Hahsen Grabi Ibrahim.

8 Q. Sir, is there a photograph in that passport,

9 Government Exhibit number 402, the Norwegian passport?

10 A. Yes, sir.

11 Q. Do you recognize the person in that photo?

12 A. Yes, sir.

13 Q. Who is that?

14 A. It's Mr. Wali Khan, sir.

15 MR. GARCIA: Your Honor, at this time I would ask

16 to show the witness certain other exhibits I'll mark for

17 identification.

18 THE COURT: Sure.

19 MR. GARCIA: Government Exhibits 434, 434A, 408,

20 423, 403, 403A, 415, 425, 425A.

21 THE COURT: By the way, folks, I just want you to

22 recognize that carrying passports from different countries

23 is not illegal. Are you surprised by that? Don't be.

24 When I was born my parents had yet to be

25 naturalized so, therefore, they were both Irish. I'm

3143 1 entitled to carry an Irish passport. So I was born here so

2 I'm entitled to carry a US passport at the same time. The

3 fact that people have passports from different countries

4 doesn't mean anything, okay? Go ahead.

5 Q. Sir, could you take a look at those items and

6 tell us whether or not you recognize them.

7 A. Exhibit 434 I recognize this item. I took it

8 from the bag when I was in the apartment. Exhibit 434A I

9 recognize this and I took it from inside exhibit 434.

10 Exhibit 408, yes, I took this from inside 434,

11 the diary. 423 I took this from inside 434.

12 Exhibit 425 I took this from inside that bag.

13 Exhibit 425A I took that from inside exhibit 425.

14 Exhibit 430 I took that also from inside exhibit

15 434. Exhibit 415 was also taken by me from the bag. I

16 didn't see 403A at that time.

17 Q. Sir, is 430A a photocopy of Government Exhibit

18 430?

19 A. Yes, sir.

20 Q. Is 430 in the same or substantially the same

21 condition it was in when you first saw it?

22 MR. GREENFIELD: Objection, your Honor.

23 THE COURT: 430.

24 MR. GREENFIELD: I understand.

25 THE COURT: That's not a photocopy.

3144 1 MR. GREENFIELD: Is 430 here?

2 THE COURT: Yes, the one he's got in front of

3 him.

4 MR. GREENFIELD: Okay, I misunderstood.

5 A. Yes, sir.

6 Q. Is it discolored in any way?

7 A. Yes, sir. It was clean when I got it.

8 Q. Is Government Exhibit 430A a fair and accurate

9 photocopy of how that document appeared before it was

10 discolored?

11 A. Yes, sir.

12 Q. Officer, leaving aside Government Exhibits 415

13 and 434 for the moment, the large black book, are the

14 remaining exhibits in the same or substantially the same

15 condition they were in when you first saw them on January

16 11th, except for any discoloration?

17 A. 423 was the same. 408 was the same. 434A the

18 picture is dirty. 425A is the same. 425 is the same. 430

19 is the same.

20 MR. GARCIA: Your Honor, at this time the

21 government would offer, 434A, 408, 423, 430, 430A photocopy,

22 425 and 425A.

23 THE COURT: Good. Then when we come back from

24 lunch we'll find out whether they are in or not. It's time

25 for lunch.

3145 1 (Continued on next page)

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3146 1 (Jury, witness, interpreter not present)

2 THE COURT: Roy, you never gave me what your

3 next, if you have a next, case that you wanted to -- if you

4 don't, don't worry about it. I don't need to write letters.

5 But I understand, Clover, you have one, right, at least so I

6 gather? Come on inside and give me the name. The next case

7 if you were worried about what date were you going to go,

8 some judge you wanted me to write a letter to.

9 MS. BARRETT: Yes, your Honor that's not --

10 THE COURT: Bring it inside, and I'll take care

11 of it.

12 (Luncheon recess)

13 (Continued on next page)

14 A F T E R N O O N S E S S I O N

15 2:00 p.m.

16 Afternoon session.

17 (In open court; jury not present)

18 MR. KULCSAR: Your Honor, to save sometime

19 Mr. Garcia has given us some documents to look at. Should

20 we look at them now or afterwards? What's better for your

21 Honor?

22 THE COURT: This is the stuff he was offering

23 before?

24 MR. GARCIA: All but two are being offered right

25 now, and two additional items.

3147 1 THE COURT: How about the stuff he offered

2 before?

3 MR. GARCIA: That's with Mr. Kulcsar now.

4 THE COURT: Let's find out what the story is

5 going to be on these.

6 MR. GARCIA: I believe other counsel have seen

7 them.

8 THE COURT: Do you have objections to the stuff

9 that he offered before?

10 MR. GREENFIELD: No.

11 THE COURT: Clover, do you have objection to the

12 stuff he offered before?

13 MS. BARRETT: I have no objection.

14 THE COURT: All right, do it now.

15 (Pause)

16 ALEX PAUL MONTEAGUDO, resumed, through the

17 interpreter.

18 THE COURT: I take it there is no objection then?

19 MR. KULCSAR: No.

20 THE COURT: You want to read into the record the

21 list of things to make sure it's done.

22 MR. GARCIA: Your Honor, the list of exhibits

23 being offered at this time, 434A, 408, 423, 430, 430A, 425,

24 425A.

25 (Government Exhibits 434A, 408, 423, 430A, 425

3148 1 and 425A received in evidence)

2 THE COURT: Okay, go ahead. You're not finished

3 with witness, are you?

4 MR. GARCIA: No, sir.

5 DIRECT EXAMINATION (continued)

6 BY MR. GARCIA:

7 Q. Sir, after you finished searching the bag, did

8 there come a time that evening that you searched the person

9 of the Defendant Shah?

10 A. Yes, sir.

11 Q. Where did this search take place?

12 A. Inside his apartment.

13 Q. If the witness could be shown Government Exhibits

14 426 and 436 for identification.

15 First, starting with Government Exhibit 426,

16 could you take a look at that item and tell us if you

17 recognize it?

18 A. Yes, sir.

19 Q. Where did you first see that item?

20 A. I saw this for the first time inside Mr. Wali

21 Khan's wallet inside his apartment.

22 Q. And is that item the same or substantially the

23 same condition it was in when you first saw it?

24 A. No, sir.

25 Q. What's different about it?

3149 1 A. It's dirty, and it seems ripped in places.

2 Q. If you would also look at Government Exhibit 436.

3 Tell us if you recognize the item in that photograph?

4 A. Yes, sir.

5 Q. Where did you first see the item represented in

6 that photo?

7 A. This was connected to Mr. Wali Khan's belt which

8 was on his body.

9 Q. Were you present when that photograph was taken?

10 A. Yes, sir.

11 Q. Is it a fair and accurate photograph of that item

12 that you saw that night on Mr. Wali Khan?

13 A. Yes, sir.

14 MR. GARCIA: Your Honor, the government would

15 offer 426 and 436.

16 MR. GREENFIELD: Your Honor, with respect to 436,

17 I'd like a short voir dire?

18 THE COURT: 436?

19 MR. GREENFIELD: The photograph.

20 THE COURT: Sure.

21 VOIR DIRE EXAMINATION.

22 BY MR. GREENFIELD:

23 Q. Sir, with respect to the photograph you've just

24 identified, what day was it taken?

25 A. I don't remember the exact date, sir.

3150 1 Q. Do you know where it was taken?

2 A. Yes, sir.

3 Q. Where was it taken?

4 A. It's inside the conference room of the

5 intelligence command.

6 Q. Do you know who took that photograph?

7 A. Yes, sir.

8 Q. Who is that, sir?

9 A. I don't remember his exact name but he was an

10 African-American who's in the party of the agents.

11 Q. Sir, the original, the beeper that is depicted in

12 that photograph, where is that today?

13 A. I returned this to Ms. Carol Santiago, sir.

14 Q. When did you return that to Carol Santiago?

15 A. Third or fourth week of January, sir.

16 Q. That's after the FBI came and took a picture of

17 it?

18 A. Yes, sir.

19 MR. GREENFIELD: No further questions at this

20 time, your Honor.

21 THE COURT: Okay.

22 (Government's Exhibits 426 and 436 received in

23 evidence)

24 BY MR. GARCIA:

25 Q. Sir, after you searched the Defendant Shah what

3151 1 did you do next?

2 A. Next I reported to the incidents to my director.

3 Q. And again, is that Col. Garcia?

4 A. Yes, sir.

5 Q. Did you contact anyone else besides Col. Garcia?

6 A. I also called and informed Gen. Canson of CAPCOM

7 and Major Angeles of the western police district.

8 Q. What do you mean by CAPCOM?

9 A. It's the capital command.

10 Q. Is that the Manilla region?

11 A. Yes, it's the regional command of Manilla.

12 Q. Did there come a time when any of the individuals

13 that you contacted arrived at Singalong Street?

14 A. Yes, sir.

15 Q. Who arrived first?

16 A. Officers of the western police district, sir.

17 Q. What did those officers do when they arrived at

18 the scene?

19 A. We coordinated and together we conducted a

20 cursory inspection of the apartment.

21 Q. What was your purpose in conducting this

22 inspection?

23 MR. GREENFIELD: Objection, your Honor, they

24 conducted an inspection.

25 THE COURT: Yes. He did it, that's enough.

3152 1 Q. Did there come a time when either Gen. Canson,

2 Col. Garcia arrived on the scene?

3 A. Yes, sir.

4 Q. Who arrived first?

5 A. Gen. Canson, sir.

6 Q. Did Col. Garcia also arrive?

7 A. Yes, sir.

8 Q. After the arrival of these officers what did you

9 do next?

10 A. I received instructions and we left Mr. Wali Khan

11 along with the items found on his person and with him.

12 Q. Where did you go?

13 A. We went to Camp Crame.

14 Q. What, if anything, was done with the motorcycle?

15 A. Capt. Garay rode on it and he took it also to our

16 offices.

17 Q. So we're clear, sir, when you conducted your

18 inspection of the apartment at Singalong Street, did you

19 seize any items?

20 A. Could you please repeat the question, sir?

21 Q. When you inspected the apartment at Singalong

22 Street did you take any items that you found there?

23 A. No, sir.

24 Q. Now, when you left the Singalong address was

25 anyone from your command left at the scene?

3153 1 A. Yes, sir.

2 Q. Do you recall the names of anyone from your group

3 who was left behind?

4 A. Yes, sir.

5 Q. Who is that?

6 A. The people left there were Inspector Serrano,

7 SPO4 Edgar Malitao, SPO2 Cesar Calmada, SPO3 Unido, SPO1

8 Castro, and some others whose name I don't remember.

9 Q. Approximately what time did you arrive back at

10 Camp Crame?

11 A. About 12 midnight, sir.

12 Q. Where was the Defendant Shah taken when you

13 arrived back at Camp Crame?

14 A. My office, sir.

15 Q. Where was he put inside your office?

16 A. He was placed in a room, another office in front

17 of my office.

18 Q. Was he guarded?

19 A. Yes, sir.

20 Q. Now, after you returned to Camp Crame that night

21 did you see the -- did there come a time when you saw the

22 motorcycle from room 2010?

23 A. Could you repeat the question again?

24 Q. Did you see the motorcycle after you got back to

25 Camp Crame that you had seen at Singalong Street?

3154 1 A. Yes, sir.

2 Q. Where did you see it?

3 A. In front of my own office.

4 Q. Did you inspect this motorcycle at this time?

5 A. Yes, sir.

6 Q. Tell us what you did?

7 A. I took the key of the motorcycle and I opened the

8 carrying case of the motorcycle.

9 Q. Do you recall whether or not you found anything

10 inside the carrying case?

11 A. Yes, sir.

12 Q. What type of things do you remember finding?

13 A. I found several documents and several receipts.

14 MR. GARCIA: Your Honor, if the witness might be

15 shown Government Exhibits 409A through F and 410A, B and C.

16 If you would, sir, look at those documents and

17 tell us if you recognize them?

18 A. Government Exhibit 409 I recognize as I found

19 this inside the carrying case of the motorcycle. I

20 recognize 409B. I found this inside the carrying case.

21 They were all together.

22 I also recognize exhibit 409C. I recognize 409D.

23 I recognize exhibit 409E. This was all together with those

24 other items inside the carrying case of the motorcycle.

25 I also found 409F inside the carrying case.

3155 1 Q. Those exhibits that are in front of you, are they

2 in substantially the same condition they were in when you

3 first saw them?

4 A. Should I look at the others?

5 Q. 410A through C, yes, please.

6 A. I recognize 410A. I recognize it as one of the

7 items found in the carrying case of the motorcycle. I

8 recognize 410B. I took this from the carrying case of the

9 motorcycle. Likewise, with Government Exhibit 410C, I took

10 this from the carrying case of the motorcycle.

11 Q. Are those exhibits in the same or substantially

12 the same condition they were in when you took them from the

13 motorcycle?

14 A. Yes, sir.

15 MR. GARCIA: Your Honor, the government offers

16 409A through F and 410A, B, C.

17 MR. GREENFIELD: I looked at them.

18 (Government's Exhibits 409A through F and 410A, B

19 and C received in evidence)

20 Q. Now, sir, did there come a time later in the

21 morning of January 10 -- January 12, 1995, that you again

22 saw Officer Calmada?

23 A. Yes, sir.

24 Q. Where did you see him that morning?

25 A. I saw him inside the compound of the intelligence

3156 1 command.

2 Q. Could you describe for us what happened when you

3 again saw Officer Calmada?

4 A. Inspector Serrano reported to me. Then I left my

5 office and I went to one of our vehicles parked outside my

6 office and SPO2 Calmada was there with a female.

7 Q. Where was the female taken?

8 A. What do you mean, sir?

9 Q. Did there come a time when she left the vehicle

10 in the compound?

11 A. Yes, sir.

12 Q. And where did she go after she left the vehicle?

13 A. She went with Officer Calmada and Inspector

14 Serrano to the officers lounge.

15 Q. Did you go to the officers lounge as well?

16 A. Yes, I followed them.

17 Q. What happened after you got to the officers

18 lounge?

19 A. I spoke to the woman and whatever Inspector

20 Serrano and his company were carrying with them I laid them

21 out on the table.

22 Q. Did the woman identify herself to you at all

23 during this conversation?

24 A. Yes, sir.

25 Q. How did she identify herself?

3157 1 A. She introduced herself as Carol Santiago.

2 Q. Did there come a time the morning of the 12th of

3 January that you again saw Officer Malitao?

4 A. Yes, sir.

5 Q. Where did you see him?

6 A. In my office, sir.

7 Q. Could you describe for us what happened when you

8 met Officer Malitao in your office that morning?

9 A. He reported to me. He was carrying documents,

10 papers and other things.

11 Q. What happened to those documents and papers?

12 A. He submitted them to me and I took them into my

13 custody.

14 Q. What happened to the material --

15 MR. GREENFIELD: I'm sorry, what was that answer,

16 your Honor?

17 THE COURT: He submitted them to me and I took

18 them into my custody.

19 Q. What happened to the materials brought back by

20 Officer Calmada?

21 A. I spread them out on the table and I ordered

22 Officer Calmada to take a video footage of it.

23 Q. Who maintained custody of those items after that

24 was done?

25 A. Myself, sir.

3158 1 Q. Who maintained custody of the documents that you

2 found inside the motorcycle?

3 A. Myself again, sir.

4 Q. Sir, how long did the Defendant Shah remain in

5 custody at Camp Crame?

6 A. Around three and a half days, sir.

7 Q. During this time was the Defendant Shah ever

8 shown any of the items that were seized on the night of

9 January 11th or the morning of January 12th?

10 A. We showed him some items.

11 Q. Were you present when this was done?

12 A. Yes, sir.

13 Q. Was he shown the original items or copies?

14 A. The originals, sir.

15 Q. Was he allowed to handle the items?

16 A. Yes, sir.

17 Q. Was he wearing gloves when this was done?

18 A. No, sir.

19 MR. GARCIA: Your Honor, if the witness might be

20 shown Government Exhibits 415 and 434.

21 Sir, I believe earlier you identified those

22 objects as items that you saw the night that you looked

23 through Defendant Shah's bag; is that correct?

24 A. Yes, sir.

25 Q. What I'd like you to do now is direct your

3159 1 attention to the pages that have the yellow tabs inserted on

2 them.

3 First, I believe you have Government Exhibit 415

4 in front of you now; is that right?

5 Could you look at the yellow tabbed pages and

6 tell us are those pages in the same condition they were in

7 when you first saw that item at Singalong Street?

8 A. No, sir.

9 Q. What is different about those pages?

10 A. There are English writings, English script on

11 these pages.

12 Q. Does that writing appear in pencil?

13 A. Yes, sir.

14 Q. When was that writing added?

15 A. Possibly around the 13 January, 1995.

16 Q. Now, so we're clear the ink writing that appears

17 on those pages, was that there when you first saw this item?

18 A. The ink writing, yes.

19 Q. I'd also ask you to do the same thing with

20 respect to Government Exhibit 434 which is on the rail. I

21 believe there is one tab page in that. Could you tell us if

22 that page is in the same condition it was when you first saw

23 this item at Singalong Street?

24 A. Yes, sir.

25 Q. Is there any difference between that page the way

3160 1 it is now and the way it was when you first saw it?

2 A. There is also English writing on this. When I

3 first saw it, it wasn't there.

4 Q. And is the English writing in pencil?

5 A. Yes, sir.

6 Q. And so we're clear, the ink writing, does ink

7 writing also appear on that page?

8 A. Yes, sir.

9 Q. And was the ink writing present when you first

10 saw that?

11 A. Yes, sir.

12 Q. Other than discoloration and the writing that has

13 been added in pencil on the pages that have been tabbed are

14 those exhibits in the same or substantially the same

15 condition they were in when you first saw them?

16 A. None, sir.

17 Q. Are they in the same condition other than what

18 we've just been talking about as they were the first time

19 you saw them?

20 A. How, sir?

21 Q. I'm asking if other than the writing that was

22 added in pencil and whatever discoloration there is, are

23 those items otherwise in the same or substantially the same

24 condition they were in when you first saw them?

25 A. Yes, sir.

3161 1 MR. GARCIA: Your Honor, the government would

2 offer exhibits 415 and 434.

3 (Government's Exhibits 415 and 434 received in

4 evidence)

5 Q. Now, sir, prior to coming to court today when was

6 the last time you saw the Defendant Shah?

7 A. I saw him last around 12 midnight on the 14th of

8 January, 1995.

9 Q. Where did you see him at that time?

10 A. I saw him inside the cell.

11 Q. Is that the one that's near your offices?

12 A. Yes, sir.

13 Q. After you saw him in the cell that evening, what

14 did you do next?

15 A. I gave instructions to the guard to stay alert

16 and I went to sleep.

17 Q. What do you remember happening next on the night

18 of the 14th?

19 A. I rested and by the early morning hours someone

20 hurriedly woke me up.

21 Q. Who was it that woke you up?

22 A. SPO2 Cesar Calmada, sir.

23 Q. So we're clear, were you sleeping in Camp Crame

24 that night?

25 A. Yes, sir.

3162 1 Q. After you were awakened by Cesar Calmada what did

2 you do next?

3 A. I hurried down to Wali Khan's cell.

4 Q. What did you see there?

5 A. I saw that the door was opened and he wasn't

6 inside the cell.

7 Q. Approximately what time was this that you went to

8 Wali Khan's cell?

9 A. About 5:30 in the morning.

10 Q. Is that the morning of January 15th?

11 A. Yes, sir.

12 Q. After you looked in the cell what do you do next?

13 A. I organized search teams and I dispatched them to

14 look for Mr. Wali Khan.

15 Q. To your knowledge was Mr. Wali Khan ever located

16 by your search team?

17 A. No, sir.

18 Q. Finally, sir, did you receive a certificate from

19 the US government commanding your work in this case?

20 A. Yes, sir.

21 MR. GARCIA: Your Honor, I have nothing further

22 at this time, but would ask to pass certain of the items

23 that were introduced.

24 THE COURT: Which ones?

25 MR. GARCIA: Government Exhibits 402, 404, 405,

3163 1 406 and 407 which are passports.

2 Government Exhibit 434A, B, 423, 415, 425, 425A,

3 426, 436, 409, A through F and 410A, B, C.

4 THE COURT: Put on your gloves, ladies and

5 gentlemen. Break them up into three groups.

6 (Government's Exhibits described above passed to

7 the jury)

8 (Pause)

9 MR. GARCIA: Your Honor, there is also a

10 stipulation that has been entered into between the parties

11 that applies to Government Exhibit 408, and there is also a

12 Government Exhibit 408T for identification with it.

13 THE COURT: I don't know, have we had

14 stipulations, ladies and gentlemen? I don't think so. I

15 think this is the first one.

16 A stipulation means that they decided to take any

17 question of fact out of this particular issue. The

18 stipulation reads.

19 It is hereby stipulated and agreed by and between

20 the government and the defendants that the Government

21 Exhibit 408C is a fair and accurate translation of the Urdu

22 portion of the Government Exhibit 408.

23 So just accept the translation. All right, mark

24 it all in, Paul.

25 (Government's Exhibits 408 and 408T are received

3164 1 in evidence)

2 (Pause)

3 THE COURT: Okay, ladies and gentlemen, you can

4 have your break now.

5 (Continued on next page)

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3165 1 (Jury, witness, interpreter not present)

2 THE COURT: Mr. Yousef, do you have a clue

3 whether you'll be the rest of the afternoon or part of

4 tomorrow or what?

5 DEFENDANT YOUSEF: Less than half an hour, your

6 Honor.

7 THE COURT: Bernie, are you doing it?

8 MR. UDELL: About one hour.

9 THE COURT: The rest of the day tomorrow?

10 MR. GREENFIELD: It is a possibility, that's

11 true.

12 THE COURT: Okay.

13 (Recess)

14 (Jury present)

15 ALEX PAUL MONTEAGUDO, resumed, through the

16 interpreter.

17 THE COURT: All right, Mr. Yousef.

18 CROSS-EXAMINATION

19 BY DEFENDANT YOUSEF:

20 Q. Sir, between January 6th and January 11th, 1995,

21 did you go to the Dona Josefa building?

22 A. No, sir.

23 Q. When for the first time did you learn about an

24 alleged incident in the Josefa building?

25 A. I learned that something had happened around in

3166 1 the afternoon of the 7th of January.

2 Q. You learned on the 7th of January, 1995?

3 A. Yes, sir.

4 Q. From whom did you hear of this incident, sir?

5 A. I was called to the office of my director, and I

6 learned about it there.

7 Q. Who was the person who informed you about this?

8 A. My director, sir.

9 Q. And who is that, sir?

10 A. Col. Garcia, sir.

11 Q. Now, sir, who else was at Garcia's office when he

12 told you about this alleged incident?

13 A. I remembered Col. Garcia, Col. Delfin, Col.

14 Mendoza, Col. Annuevo, and there were others who I don't

15 remember.

16 Q. Now, sir, between January 7th and January 15th of

17 1995 were you at the office of Major Ferro?

18 A. I don't remember going there, sir.

19 Q. After the afternoon of January 7th of 1995, did

20 you go to Col. Garcia's office?

21 A. No, sir.

22 Q. Sir, after January 7, 1995 until today you never

23 went to Col. Garcia's office?

24 A. Yes, I would go there every so often.

25 Q. When was the first time after January 7th, the

3167 1 afternoon of January 7, 1995, that you recall you went to

2 his office?

3 A. I don't remember, sir.

4 Q. Was it in January, 1995?

5 A. Yes, sir, but I don't remember the date.

6 Q. Do you remember approximately if it was in the

7 middle of January or the end of January?

8 A. No, sir, maybe the 9th.

9 Q. Maybe the 9th of January 9, 1995?

10 A. Maybe, sir.

11 Q. Now, did you observe any items that have anything

12 to do with the alleged incident of room number 603 in Col.

13 Garcia's office?

14 A. No, sir.

15 Q. Now, sir, did you go at all to Major Ferro's

16 office from January 7, 1995 until today, at any time?

17 A. Yes, sir.

18 Q. When was the first time after January 7th of

19 1995?

20 A. I don't remember that date, sir.

21 Q. Was that in January of 1995, do you recall, sir?

22 A. Yes, sir.

23 Q. Do you remember approximately when in January?

24 A. Maybe the 9th, the 10th or 11th.

25 Q. Did you observe any items that have anything to

3168 1 do with the alleged incident at room number 603?

2 A. None, sir.

3 Q. Did you see at any time a laptop computer that

4 allegedly was taken from room number 603?

5 MR. GARCIA: Objection.

6 THE COURT: Redo it.

7 DEFENDANT YOUSEF: I'm sorry, your Honor.

8 THE COURT: Rephrase it.

9 Q. Sir, as part of your investigation at any time

10 did you see any laptop computer that was allegedly taken

11 from room 603?

12 A. Yes, sir.

13 Q. Where did you see the computer, sir?

14 A. In that same building where certain items taken

15 from room 603 were being held.

16 Q. Which part of the building you are referring to,

17 sir?

18 A. What part, sir? What do you mean?

19 Q. Sir, when you say the same part of the building,

20 in which building you are talking about?

21 A. That building where items that were taken from

22 room 603 were deposited.

23 Q. And what building is that, sir?

24 A. The intelligence command building, sir.

25 Q. Was that in the office of one of the Majors there

3169 1 or it was a separate room?

2 A. It is a building that's under the control of one

3 of our officers, sir.

4 Q. Whose officer was responsible for that building,

5 sir?

6 A. Major Phillipps, sir.

7 Q. And was the computer also amongst the items with

8 Major Phillipps in that building?

9 A. No, sir.

10 Q. Where was the computer located, sir? Where was

11 the computer kept?

12 A. I saw the computer once laid out, but I don't

13 know who's actual custodian of that computer.

14 Q. Where did you see it, sir?

15 A. In the building, sir.

16 Q. Did you see it in Major Phillipps' office where

17 other items were kept?

18 A. No, sir.

19 Q. So where inside that building, in which room or

20 office did you see that computer?

21 A. There was a room at the end of the building where

22 there were other items taken from 603.

23 Q. And do you recall what items were with the

24 computer?

25 A. I remembered some bottles, cartons, wiring.

3170 1 Those are the only items I remember. I didn't really meddle

2 with it.

3 Q. Do you recall whose office or whose room was

4 that, was the person in charge of that room?

5 A. I don't know, sir.

6 Q. Now, when did you for the first time see the

7 computer?

8 A. The night of the 7th of January, sir.

9 Q. Who else was present, sir?

10 A. I don't remember, sir.

11 Q. Was the computer placed on a table or where

12 exactly did you see the computer in that room?

13 A. On a table, sir.

14 Q. Were you by yourself when you saw the computer or

15 was there anyone else inside that room?

16 A. There were other persons there, but I don't

17 remember who those people were. I just looked in for a

18 second.

19 Q. Was any of them using the computer at the time

20 you first saw it?

21 A. None, sir.

22 Q. Now, when after January -- withdrawn.

23 After the evening of January 7th how many times,

24 if any, did you see the computer again?

25 A. I didn't see it again, sir.

3171 1 Q. Now, sir, when was the next time when you saw the

2 computer?

3 MR. GARCIA: Objection.

4 THE COURT: Why don't you back off and ask him

5 the question.

6 Did you ever see the computer again after that?

7 THE WITNESS: Yes, sir.

8 Q. When was that, sir?

9 A. When there were agents from the FBI who looked at

10 it.

11 Q. And where was the second time in which you saw

12 the computer?

13 A. Inside a conference room, sir.

14 Q. Which conference room you are referring to, sir?

15 A. I mean the conference room of the intelligence

16 command.

17 Q. When was that, sir?

18 A. It was in January but I don't remember the date.

19 Q. Now, the first time, the evening of January 7th

20 of 1995, how did it happen that you saw or you went to the

21 room which had the computer there?

22 MR. GARCIA: Objection.

23 THE COURT: No, go ahead and answer it.

24 A. I went there to see what were taken from room

25 603.

3172 1 Q. Sir, did anyone instruct you to go to that room?

2 A. None, sir.

3 Q. What did you do after you went to the room, sir?

4 A. I returned to my office, sir.

5 Q. Now, sir, the second time when you say you saw

6 the computer, do you recall who was in the room?

7 A. There were representatives of the FBI.

8 Q. Do you recall any of the Philippine National

9 Police?

10 A. Yes, sir.

11 Q. Do you recall their names, sir?

12 A. Col. Garcia, sir.

13 Q. Was he the only one from the Filipino National

14 Police?

15 A. There were several officers, sir. They were

16 watching the items, but I don't know, I don't know and I

17 don't remember their names.

18 Q. Was anyone using the computer at that time?

19 A. A female agent of the FBI was looking at the

20 computer.

21 Q. Now, sir, when the next time -- withdrawn.

22 After you saw the computer the second time, did

23 you see the computer again?

24 A. No, sir.

25 Q. Now, sir, at any time prior to January 23rd,

3173 1 1995, were you shown any documents that were supposedly

2 printed out from the computer?

3 A. Yes, sir.

4 Q. When was that, sir?

5 A. I don't remember the date, sir, but it was still

6 in January.

7 Q. And who was the person who showed you these

8 documents?

9 A. Maybe it was Col. Delfin.

10 Q. Who else was present, sir?

11 A. No one else, sir.

12 Q. Where did this happen, sir?

13 A. In Col. Delfin's office, sir.

14 Q. Do you recall what were the contents of the

15 printout?

16 A. Yes, there was some that I remember.

17 Q. Would you tell us the ones which you remember,

18 sir?

19 A. I remembered Bojinka and flight schedules of

20 airplanes.

21 Q. Did you receive a copy of the printout which you

22 saw on that day?

23 A. No, sir.

24 Q. Now, what happened to the printout which you saw

25 on that day, sir?

3174 1 A. I don't know, sir.

2 Q. Now, sir, when you entered the room on the

3 evening of January 7, 1995, the room which you say you saw

4 the articles which were brought from room number of 603 in

5 the Josefa building, was the room guarded or secured in any

6 way?

7 A. Yes, there was, sir.

8 Q. Would you describe how the security procedures

9 were?

10 A. As you enter the door there's a guard, and in

11 that room where the bottles and other things are kept,

12 there's also a guard.

13 Q. Now, sir, how did you learn that any items from

14 room number 603 were in that room?

15 A. I was told by someone.

16 Q. Would you tell us who that person was, sir?

17 A. I don't remember, sir.

18 Q. Sir, do you recall or do you know who was the

19 person in charge of that room?

20 A. No, sir.

21 Q. Sir, were you present at the first conference at

22 which various items which are allegedly taken from room

23 number 603 were displayed?

24 A. Yes, sir.

25 Q. Now, do you recall when this conference happened,

3175 1 sir?

2 A. I don't remember, sir.

3 Q. Was it in Camp Crame?

4 A. Yes, sir.

5 Q. Which part or which section of Camp Crame was it?

6 A. It happened in the conference room of the

7 intelligence command.

8 Q. Who else was present, sir?

9 A. There were other high-ranking officers but I

10 don't remember. It's been a long time.

11 Q. Would you mention the name of the officers who

12 you recall?

13 A. Col. Garcia was there.

14 Q. Sir, was it a press conference?

15 A. Yes, sir.

16 Q. Sir, were any items from room number 603 laid

17 down on the table?

18 A. Yes, sir.

19 Q. Sir, do you recall if this was between January

20 7th and January 15th?

21 THE INTERPRETER: Could the interpreter hear that

22 again, please?

23 Q. Do you recall if this was between January 7th and

24 January 15, 1995?

25 A. It wasn't within the time frame. It was after.

3176 1 Q. It was after January 15th?

2 A. Yes, sir.

3 Q. Was it after the Pope's visit, sir?

4 A. Yes, sir.

5 Q. Was it shown on the Philippine television, sir?

6 A. I didn't see it, sir.

7 Q. Sir, do you recall what are the items which were

8 shown on the table which were placed over the table?

9 A. I remember there were items that we took, that we

10 got from Mr. Wali Khan and there were bottles.

11 Q. Was the computer among these items?

12 A. I don't remember, sir.

13 Q. Sir, if you saw a video of this would it refresh

14 your recollection?

15 A. Perhaps, sir.

16 Q. Sir, what's your professional relationship with

17 Major DeAngeles?

18 THE INTERPRETER: Could the interpreter hear the

19 last word, please?

20 THE COURT: What is your professional

21 relationship with Major DeAngeles?

22 Q. During January of 1995?

23 A. None, sir. This gentleman is with the western

24 police district. I know he's an intelligence officer but at

25 that time I did not know him.

3177 1 DEFENDANT YOUSEF: Your Honor, I have an

2 application afterwards.

3 THE COURT: Okay. Well, we'll take the

4 application now, because now is afterwards. Okay, ladies

5 and gentlemen, I will see you tomorrow at 9:30.

6 (Continued on next page)

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3178 1 (Jury, witness, interpreter not present)

2 THE COURT: What is the application?

3 MR. KULCSAR: We wanted to ask if the witness

4 would be shown the portion of that CPS news video out of the

5 presence of the jury to see if that refreshes his

6 recollection as to whether that's the conference he was

7 talking about.

8 THE COURT: Who has this piece? Do you have it?

9 MR. SNELL: We have a copy.

10 THE COURT: Show it to him. It's not a big deal.

11 Okay.

12 MR. GARCIA: We'll show it to him tonight.

13 THE COURT: Okay, fine. You recognize of course

14 normally the prosecutor doesn't talk to the witnesses on

15 cross, but you're going to have to have the guy talked to.

16 MR. KULCSAR: Your Honor, I appreciate the offer,

17 but I wasn't intending to suggest that he view a videotape

18 in the offices of the government. I was suggesting if we

19 could set up one videotape machine so the witness can view

20 the videotape in the courtroom.

21 THE COURT: We can't do it here.

22 MR. KULCSAR: I'm sorry, your Honor?

23 THE COURT: He can't do it here, I'll tell you

24 that much, at exactly 4:30, because approximately thirty

25 seconds from now you guys are out of here and we have

3179 1 another case in here.

2 MR. KULCSAR: I was not going to suggest that.

3 What I was suggesting, your Honor, is that we defer this

4 until the conclusion of other cross-examination and just

5 have a video set up sometime tomorrow at the lunch break or

6 whatever, or in the recess, and we'll do it obviously in the

7 presence of the Court, and in the absence of the jury.

8 THE COURT: How long is this whole thing?

9 MR. KULCSAR: How long is the tape, your Honor?

10 THE COURT: Yes.

11 MR. KULCSAR: The portion of the tape that we're

12 referring to is a minute or less, 30 seconds.

13 THE COURT: Much ado about nothing.

14 MR. KULCSAR: It could be productive.

15 THE COURT: I don't care. If you really want to

16 do it, fine, do it that way. Whose TVs have we been using,

17 the government's or Joel's?

18 MR. GARCIA: Your Honor, maybe we can bring down

19 a small portable tape player. It might be easier, rather

20 than wire the courtroom for the witness.

21 THE COURT: All right. Clear out of here the

22 whole bunch of you. We've got another matter.

23 (Adjourned to 9:30 a.m., Wednesday, July 31,

24 1996)

25 (Continued on next page)

3180 1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 ALEX PAUL MONTEAGUDO.......3128 3165

4 GOVERNMENT EXHIBITS

5 Exhibit No. Received

6 401 through 407 ................................3141

7 434A, 408, 423, 430A, 425 and 425A .............3147

8 426 and 436 ....................................3150

9 409A through F and 410A, B and C ...............3155

10 415 and 434 ....................................3161

11 408 and 408T are ...............................3163

12 DEFENDANT EXHIBITS

13 Exhibit No. Received

14 Shah J ..........................................3115

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