Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 1 of 169

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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UNITED STATES OF AMERICA
vs.
DIAS KADYRBAYEV (1),
AZAMAT TAZHAYAKOV (2)
AND ROBEL KIDANE PHILLIPOS (3),

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Defendants.

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) No. 13-cr-10238-DPW
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BEFORE:

THE HONORABLE DOUGLAS P. WOODLOCK

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DAY ONE OF MOTION HEARING

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John Joseph Moakley United States Courthouse
Courtroom No. 1
One Courthouse Way
Boston, MA 02210
Tuesday, May 13, 2014
9:00 a.m.

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Brenda K. Hancock, RMR, CRR
Official Court Reporter
John Joseph Moakley United States Courthouse
One Courthouse Way
Boston, MA 02210
(617)439-3214

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APPEARANCES:
U.S. ATTORNEY'S OFFICE
By: AUSA B. Stephanie Siegmann
AUSA John A. Capin
1 Courthouse Way
Suite 9200
Boston, MA 02210
On behalf of the United States of America.
LAW OFFICES OF ROBERT G. STAHL, LLC
By: Robert G. Stahl, Esq.
Laura K. Gasiorowski, Esq.
Joshua F. McMahon, Esq.
220 St. Paul St.
Westfield, NJ 07090
On behalf of the Defendant Dias Kadyrbayev
LAW OFFICE OF BUKH & ASSOCIATES PLLC
By: Nicholas Wooldridge, Esq.
1123 Avenue Z
Brooklyn, NY 11235
On behalf of the Defendant Azamat Tazhayakov.
MYERS, SINGER & GALIRADO, LLP
By: Matthew Daniel Myers, Esq.
299 Broadway, Suite 200
New York, NY 10007
On behalf of the Defendant Azamat Tazhayakov.
DEMISSIE & CHURCH
By: Derege B. Demissie, Esq.
Susan B. Church, Esq.
929 Massachusetts Avenue
Suite 01
Cambridge, MA 02139
On behalf of the Defendant Robel Kidane Phillipos.

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WITNESSES:

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SPECIAL AGENT
JOHN WALKER
By Ms. Siegmann
By Mr. Stahl

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THE CLERK:

THE CLERK:

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All rise.

This Honorable Court is now in session.

You may be seated.

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(The Honorable Court entered the courtroom at 9:00 a.m.)

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This is Criminal Action 13-10328, The United States
versus Dias Kadyrbayev, Azamat Tazhayakov and Robel Phillipos.

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THE COURT:

You may be seated.

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We have a number of motions to get through here in the

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next several days, and the way in which I think I am going to

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organize it is as follows:

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First, I am going to deal with the charging document.

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There are a series of Motions to Dismiss, and for Bills of

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Particulars that deal with that.

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papers.

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I will deal with those on the

I am going to indicate briefly my resolution of them.
Then, there are a series of motions that I will say

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are trial-related, a Motion to Sever, which is affected by the

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Government's 11th-hour determination that they were not going

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to oppose severance here, which means not trial, but trials, I

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assume, although I at some point will want to have an

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understanding from the Government how it came to pass that this

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lack of opposition to the Motion to Sever was filed, as I say,

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at the 11th hour, maybe a little later than the 11th hour.

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The third set of issues are the Motions to Suppress.
I think they will take up most of our time in the next several

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days.
There is one preliminary matter, and I guess,

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Mr. Stahl, it is addressed to you.

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suggestion that the defendant is insufficiently competent in

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the English language and needs some sort of translator or

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something.

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had a translator before.

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I guess I want to understand what the story is on that.

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In your filings there is a

I have looked through the materials.

MR. STAHL:

He has never

One was not even asked for here.

So,

The argument is not as to his level of

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English skills now, Judge, which are multiple times better than

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they were back over a year ago when he was arrested.

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Pavlenko's submission goes to his understanding, his fluency,

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his level of comprehension in English back at the time of this.

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THE COURT:

Dr. Aneta

So, in the period since he has been in

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custody his English language skills have increased

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dramatically?

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MR. STAHL:

Dramatically, your Honor.

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First of all, since the time he was first in, I

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believe it was Sussex (sic) County Jail, which was the

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immigration detention --

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THE COURT:

Suffolk.

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MR. STAHL:

Suffolk, sorry.

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Suffolk.

He realized

that, "I'm going to be here for a while."
THE COURT:

Let me just pause.

I saw it, made

arrangements for a translator to be present, if it were asked

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for, but it had not been asked for.

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take it that there is no need to keep the translator.

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MR. STAHL:

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That being the case, I

Judge, what we had for both Mr. Kadyrbayev

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and Mr. Tazhayakov, at the first official proceeding of any

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substance was the deposition of the immunized witness, and we

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had a translator standing by for technical terms, and they both

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used them, and so did that witness.

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difficulties about certain phrases, certain phraseology back

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then.

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There were some

I don't believe that it's necessary today at this late

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stage, meaning a year and some months past, where

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Mr. Kadyrbayev has been in jail, speaking with guards, with

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other inmates, reading English language books, working very

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diligently on his English skills, that he needs it for these

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hearings.

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THE COURT:

All right.

Well, then, we will simply

release the translator.
MR. STAHL:

Yes.

And I apologize if there was some

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confusion, because I would have alerted the Court whether we

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needed a translator or not.

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THE COURT:

So, let me deal, first, with the charging

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documents issues.

Of course, I have reviewed all of the

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motions, which fall into two categories of relief, one to

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dismiss, one Motion for Bill of Particulars.

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Bill of Particulars are concerned, I deny that.

As far as the
The charging

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document itself is clear enough for present purposes to alert

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the defendants to the charges that are going to be pursued by

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the Government.

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rather fleshy.

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defendants what it is that they are facing.

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The charging document is not bare bones; it is
In any event, it is sufficient to tell the

Turning to the question of Motions to Dismiss, the

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defendants have, I think, kind of allocated responsibility

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among each other as to this.

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The first is Mr. Kadyrbayev's challenge to the

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Section 1519 charge, which is the basic fundamental charge

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here.

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this point find it to be vague or overbroad or Constitutionally

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infirm in any fashion.

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is clear what it is that the statute itself provides and what

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the charge is, and I simply do not see this as something to be

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resolved on a Motion to Dismiss.

I am going to deny that as well.

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I do not personally at

It is a new statute, to be sure, but it

Now, I will add one further point.

About two days

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after the Government's opposition was filed on April 25th, the

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parties may be aware that the Supreme Court granted certiorari

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in a 1519 case, and, of course, we will follow along in the

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briefing.

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The petitioner has 45 days from April 28th to file the merits

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brief and then 30 days thereafter for the parties.

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The briefing will take place I think this summer.

Having spent some time with the Sarbanes-Oxley Act and
some of the challenges it presents, I can fully understand why

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the Supreme Court would grant cert to tidy it up a bit, but

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nothing in the Petition itself or in the case law suggests to

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me that 1519 is going to be held vague on its face, and it does

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not seem to me, on the basis of the papers that I have now,

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that the Government is going to be unable to prove a 1519

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violation as to the defendants here.

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I emphasize that this is all a matter subject to proof

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at trial, but we are just dealing with the charging document.

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As I indicated in a prior hearing, Motions to Dismiss are not

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generally a useful way to get at the substance of the case,

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except in the most extreme cases.

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about my attitude toward Motions to Dismiss generally and

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Motions for Judgment on the basis of evidence before a jury

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verdict.

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I will talk a little bit

I then come to the motion that has been filed, and I

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probably, for Mr. Lovett's benefit, should be clear about this.

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The Motion to Dismiss of Mr. Kadyrbayev is No. 117, and his

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Bill of Particulars is also 117.

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That is denied.

Then, turning to Mr. Tazhayakov's Motion to Dismiss

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and his Motion for Bill of Particulars, those too will be

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denied.

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necessary here.

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some specificity in the indictment.

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is clear enough here not to require a Bill of Particulars.

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As I indicated, the Bill of Particulars is not
It is an initiative that is meant to provide
I find that the indictment

And then, turning to the Motion to Dismiss itself that

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is addressed to the aiding and abetting dimension to it, it is

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both imaginative and retrospective in its desire to have

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affirmed the dissents in Nye & Nessen, but the case law on

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aiding and abetting is substantial.

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proceed on that basis.

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The case can properly

For the parties' purposes, I do want to direct your

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attention, if you have not had a chance to review it, to

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Justice Kagan's decision in Rosemond v. The United States,

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which I think is a pretty useful overview of what "aiding and

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abetting" means.

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It is 134 S.Ct. 1240.

Not to emphasize a kind of pride of authorship, but

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just so the parties are familiar with things that I have done

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in this area, I find that 22 years ago I wrote about this issue

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sitting by designation on the First Circuit in United States v.

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O'Campo.

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sentencing, I talked about what you can call "vicarious

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liability."

I suppose it also can be called "associative

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liability."

But, in any event, it discusses what I think may

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be theories of prosecution here that the parties may want to

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familiarize themselves with, at least as it appeared to me

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then; and it does not, I think, appear to me differently now,

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after reviewing it.

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aiding and abetting and also Pinkerton charges.

It is 973 F.2d 1015, which, in the context of

That deals not merely with conspiracy but

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So, in any event, No. 120, the Tazhayakov Motion to

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Dismiss, is denied, and No. 121, the Bill of Particulars, is

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denied.

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Then, I turn to the Motion to Dismiss of

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Mr. Phillipos, and this provides me with an occasion to talk

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about my approach to Motions to Dismiss generally.

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I view Motions to Dismiss in the criminal setting as

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efforts, obviously, to pretermit the trial of the case, but

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generally they arise at a time it is impossible to make a

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determination about it.

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you can really deal with this.

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You have to see the evidence before

That is particularly true, I think, of Mr. Phillipos'

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Motions to Dismiss.

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fact-finder in this area.

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facts have not been developed.

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responsibility; it is a jury's responsibility to deal with

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that.

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They essentially ask me to function as the
I do not know the facts yet.

The

In any event, it is not my

The way in which I have approached, generally, Motions

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to Dismiss and their sister kind of motions is this:

I am

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intensely aware of the asymmetry of appellate rights between

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the Government and a defendant.

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rights if there is an adverse decision after trial.

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Government does not.

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the Congress has provided appellate rights, interlocutory

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appellate rights, to the Government on Motions to Dismiss; but,

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as I have indicated, my view about Motions to Dismiss is that

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the substance of them, as a generality, not in particulars,

The defendant has appellate
The

That is one of the reasons, I think, that

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really does not get fleshed out until there is a trial.

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There is the potential for a judge to grant a judgment

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on the basis of the evidence at the conclusion of the

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Government's case, at the conclusion of all of the evidence in

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the case.

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do it is that the Government does not get an appeal right if I

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do it; double jeopardy effectively prevents that.

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course of my period on the Bench, I do not think I have done it

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fully in any case, and have only done it when it was simply

I try never to do that.

The reason I try never to

In the

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impossible intelligently to instruct a jury as to particular

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counts, and that will be what guides me here.

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ultimate determination about the underlying issues until I look

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at it, if I have to, after a jury verdict.

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It is not an

So, while the parties, for their own purposes, will

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undoubtedly make such motions at the appropriate times and, in

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fact, have to to preserve their rights, I suspect that I will

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not deal with the substance of the underlying claims of the

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Motion to Dismiss as a factual matter until after a jury

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verdict, if the jury verdict is adverse to the defendants.

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So, I think that deals with what I will call the

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"charging document" issues, but in that connection I am denying

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No. 118, which is Mr. Phillipos' Motion to Dismiss.

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Now I come to the question of what I will call "trial

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structure."

This has been, as I indicated, somewhat rearranged

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by the Government's view that the case that it jointly charged

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the defendants must separately be tried for severance reasons.

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The reasons offered in the rather crisp response -- I think it

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is three sentences -- is that there are colorable Bruton and

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Crawford issues.

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outset, and so I am a little concerned and interested in why it

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took the Government until, as I say, the 11th hour, because

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their response was due on May 9th, and this filing, according

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to the Court's clock, was made at Military Time 23:35 and 5

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seconds, so it is the 11th hour plus.

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Yes.

I think that was evident from the very

So, why so long to address the obvious?

Is the

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Government thinking about trying this case without implicating

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Bruton and Crawford?

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MR. CAPIN:

Well, your Honor, of course, were

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cognizant at the charging stage of a potential Bruton rule.

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also know that, as the Court knows, that under Richardson v.

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Marsh it can be cured through redaction.

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possible that we could so cure it.

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it became clearer that the normal remedy isn't really

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appropriate here, and we didn't want to risk the appellate

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issue.

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We

It seemed to us

As the evidence developed,

Moreover, we thought that there was some efficiency
because we --

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THE COURT:

"Some efficiency"?

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MR. CAPIN:

Efficiency to -- well, if the question is

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why we didn't respond more timely --

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THE COURT:

That is one of them.

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Just a moment, so I

clarify.

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Part of this is to now sequence the trials.

I will

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look to the parties, of course, for their views about this, but

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I have two people in custody, one person not in custody, one

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person in custody who at least initially said he wanted a

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prompt trial.

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to reflect on that and for the parties to reflect on that.

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So, it would have been helpful to have more time

Knowing as little as I do about this case, I was

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interested in how the Government had thought they were ever

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going to get around Bruton and Crawford problems here with what

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seemed to me to be necessarily cross-inculpatory evidence in

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the case.

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So, I guess, yes, I would like to know why it took
until 11:35 and 5 seconds, not to put too fine a point on it.
MR. CAPIN:

Okay.

Your Honor, in response to an

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earlier motion, I think it was in connection with the

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Bill of Particulars, we did indicate that we would not be

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objecting to the severance motion.

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THE COURT:

I think you said it was under advisement.

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MR. CAPIN:

The Court could be right.

I am fairly

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certain that the document said very clearly "for reasons it

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will state later," and it was one of those, you know, meeting

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of deadline issues, and this is, of course, the possibility for

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a Bruton issue had been discussed among the parties earlier.

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We indicated that we would not be opposing severance.

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thought we had put -- in fact, I had an exchange with Mr. Stahl

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that very evening several weeks ago, when we filed that motion

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on the Bruton issue.

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So, we

So, we thought we had apprised the parties as timely

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as -- well, timelier than necessary to respond to the Bruton

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motion, and if the response to the motion itself was unduly

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pithy, it's perhaps because, as the Court notes, the Bruton

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issue sort of jumps out at you.

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THE COURT:

Well, the issue goes back now to so what

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is the order of trial?

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now three, and I do not know what the Government's view is with

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respect to it.

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suspect the defendants' view is somebody else goes first, and

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each one will take that position.

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Because what started as one trial is

Obviously, I will be interested in it.

I

I guess I should go back to what I have made clear all
along.

We are starting on June 30th on this.

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MR. CAPIN:

And the Government, of course, is ready.

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THE COURT:

Well, it was acquiescent in a prior filing

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for additional time here, but it is good to know the Government

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is going to be ready.

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So, do you have any views about order?

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MR. CAPIN:

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First of all, the caption, which is alphabetic, is as

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I think we have two views, your Honor.

logical a choice as any.

It would be Kadyrbayev, Tazhayakov,

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Phillipos.

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in custody, so there is no question he should not go first.

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You may hear from Mr. Tazhayakov's attorney that he wants to go

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first, and since he was the one asserting his speedy trial

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right, that might be a logical way to proceed, if that's what

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he wants to do.

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Actually, Phillipos is charged later, but he is not

THE COURT:

The other aspect of it is, I am raising

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this because, obviously, I want to hear from the defendants,

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but in reading the motion that sought to delay the deadlines, I

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think, Mr. Wooldridge, you have got some pretty important

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things happening to you and your family.

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MR. WOOLDRIDGE:

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having a baby.

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June 30th.

Yeah, in September, Judge, my wife is

We do want to go first.

We do want to go

We do want to be the first ones to go up.

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THE COURT:

Then that deals, then, with that issue.

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Now, then, we deal with the question of back-to-back,

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how to address these trials.

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creating a publicity of their own.

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of change of venue in a minute.

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Because they have a way of then
I will get to the question

My present view is to arrange my schedule to permit

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what I thought was one trial to become three trials this summer

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through September 8th, that is, September 8th being the last

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date here, but to get all of them done during the summer.

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that may pose some jury-selection problems for either side.

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do not know yet.

Now,
We

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If the Government is unsuccessful in the Tazhayakov

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trial, that may mean that they are having a new venire that has

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been told that one defendant has been found not guilty.

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contrast, if there is a guilty finding, that means that the

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co-defendants may find a venire that knows a defendant has been

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found guilty.

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By

I raise it, but I am not sure it is so determinative

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here.

I will talk about the Motion for Change of Venue in just

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a moment, but I do not know if the Government has a position

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with respect to that issue, that is, the timing and sequencing

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of these cases.

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MR. CAPIN:

I think generally it is both from the

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perspective of -- in addition to the impanelment issue, the

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jury issue, the difficulty finding jurors in the summer, we

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have the same type of vacation-type conflicts with counsel and

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with witnesses.

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frankly, discussion among the parties initiated by the defense

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was that in the event there was a continuance, their

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preference, at least other than Mr. Wooldridge's client, would

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be to proceed in September.

We haven't polled the witnesses, because,

We think that would be preferable.

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THE COURT:

Well, what does that mean?

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MR. CAPIN:

It means starting in September.

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THE COURT:

Doing Tazhayakov, assuming that that is

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the case that goes forward, on June 30th?
MR. CAPIN:

Yes, your Honor.

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THE COURT:

The next trial, which presumably would be

Mr. Kadyrbayev, on September 8.

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MR. CAPIN:

My understanding is that is

Mr. Kadyrbayev's pleasure.

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THE COURT:

But there was also an expression from the

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Government about, "Summer is when people have vacations.

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would like to have one."

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MR. CAPIN:

We would like to have one.

We

We know our

witnesses would like to have one, and jurors often like to have
them.
THE COURT:

Well, jurors try cases in the summer.

Judges are even here during the summer.
MR. CAPIN:

We think that a September trial, from

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everybody's perspective, is preferable, and we would defer to

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Mr. Kadyrbayev's desire to proceed in September.

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THE COURT:

Well, there is one other point.

I am

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tossing these out so the parties can -- I am sure they have

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thought about it, but I am thinking about it as well, which is

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bumping up against the current Tsarnaev trial date.

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want in any fashion to cause issues to be exacerbated in terms

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of pretrial publicity for that case as well.

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MR. CAPIN:

So, that's a November trial.

I do not

It seems to

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me if we went back-to-back in September, especially doing these

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trials individually -- we don't think either one will be more

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than two weeks.

So, we should be able to wrap it up in

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September.

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THE COURT:

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So, Mr. Wooldridge, you have expressed your view now

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All right.

that you are ready to go on June 30th.

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MR. WOOLDRIDGE:

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THE COURT:

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June 30th, Judge, yes.

Is there any objection from either

Mr. Phillipos or Mr. Kadyrbayev about that?

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MR. STAHL:

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MR. DEMISSIE:

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THE COURT:

No objection on behalf of Mr. Kadyrbayev.
No objection from Mr. Phillipos.

So, let me, then, turn to Mr. Kadyrbayev,

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because he will be the next in line on this.

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that you are prepared to go on September 8, I guess it is.

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MR. STAHL:

Yes, your Honor.

You indicated

I have a scheduled

vacation right before and then one in the middle of October.
THE COURT:

I saw that.

I was envious of all the

opportunities to travel.
MR. STAHL:

You haven't met my wife.

She tells me

when to travel.

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But, yes.

20

THE COURT:

So, September 8th is our preference.
All right.

So, I think we will go, then,

21

for September 8th on that.

22

two-week period for the trial.

23

So, the end of September for Mr. Phillipos, if that is

24

agreeable with Mr. Phillipos.

25

18

MR. DEMISSIE:

And then we are talking about a
I will allocate three weeks.

Are we going to pick a specific date?

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1
2

THE COURT:

I think I will.

MR. DEMISSIE:

4

THE COURT:

So, those are the three trial dates, then,

The Motion to Change Venue is -- if I can just pause
for a moment, though, so that Mr. Lovett can get these down.

8
9

That would be good for us, your Honor.

here.

6
7

So, let me just pull off

-- September 29th.

3

5

19

I am allowing Motion No. 148 of Mr. Kadyrbayev for
Severance, Motion No. 173 of Mr. Tazhayakov for Severance,

10

Motion Nos. 168 and 172 of Mr. Phillipos for Severance, and

11

establishing the trial dates as I have so far.

12

MR. STAHL:

Excuse me, your Honor.

13

THE COURT:

Yes.

14

MR. STAHL:

Also in our Motion to Dismiss was a motion

15

to strike surplusage.

16

THE COURT:

I don't think you have ruled on that.
Right.

Let me talk about that.

I think

17

that is useful in this context, that is, the context of trial

18

structuring and so on.

19

I do not see a reason to strike the surplusage at this

20

point.

What generally happens for me is, I will submit an

21

indictment to the jury if I think it is helpful to them.

22

will require redactions of the indictment, as necessary, if the

23

Government does not prove something.

24

charging document, which, as I have indicated, is at this stage

25

fleshy, is a little too overweight, I will try to slim it down

I

If it appears that the

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1
2

20

a little bit.
But I do not think I need to get to the question of

3

surplusage at this point, and so I am denying it at this point,

4

subject to talking about what it is that goes to the jury to

5

shape their views about the case.

6

MR. STAHL:

If I could follow up with a question?

7

THE COURT:

Sure.

8

MR. STAHL:

Is this something in your practice that we

9

would file a motion in limine before the Government's opening

10

as to what they would be allowed to open on and how much they

11

would be able to go into the details of the bombing itself?

12

THE COURT:

I think it is two parts.

The first is for

13

motions in limine as to which I think I can only provide in

14

response to a motion in limine a tone poem.

15

MR. STAHL:

I'm sorry?

16

THE COURT:

A tone poem.

I am not going to be writing

17

their opening statement for them.

18

where they could get themselves in a lot of trouble, if they

19

alluded to evidence or matters that simply are immaterial from

20

my perspective on it.

21

each other more as things go along, and you will get to see the

22

dealings with Mr. Wooldridge and his client.

23

will kind of shape some of that.

24
25

I will give them a sense of

But I think we will be getting to know

Motions in limine

To the degree that something is in the charging
document does not necessarily mean that it gets presented to

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1

the jury.

I said it was two parts.

2

document goes to the jury, if any.

3

useful for the jury to understand what the Government has

4

undertaken to prove, but it frequently is the case that that

5

needs a redaction.

6

in this case to take out the caption for the other defendants

7

that are to be tried at any particular time.

8

overt acts that are not proved in the case that will be taken

9

out, and it may be that after a discussion I say the jury

The second part is what
I generally think it is

So, for instance, there will be a redaction

There may be

10

understands this case enough, they do not need the charging

11

document to go in.

12

21

But that is the way I will deal with it.

The short of it is, again, this is a kind of premature

13

motion.

That is why I am denying the motion.

14

understand the underlying purposes behind it.

I think I

15

So, back to change of venue.

16

My present view about this is that there has not been

17

demonstrated as of yet a basis to change the venue in this

18

case.

19

deal -- not this case itself -- but the general subject matter

20

has generated a great deal of press coverage.

21

what the parties have submitted in that regard.

22

it to be the kind of press coverage that on the whole can raise

23

some sort of presumption of the change of venue.

24

been commentary on what the press has been able to find out

25

about various things and reporting about it.

Of course, it is a case that has generated a great

I have reviewed
I do not find

There has

Obviously, it is

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1

a matter of continued interest and became particularly active

2

surrounding the anniversary.

3

22

But the submissions on the Motion to Change Venue seem

4

to me to be premature as well.

5

selection of the jury and the evidence stated.

6

into context for the parties, as I did with my standard way of

7

dealing with Motions to Dismiss, in dealing with their family

8

of suppression motions.

9

The proof of the pudding is the
I will put it

I think a good portion of my professional life has

10

been either observing or participating in one form or another

11

in high-profile cases.

12

Washington, particularly during the time period of Watergate

13

and those prosecutions, I had an opportunity to observe how

14

jury selection can be conducted and how in a Metropolitan area

15

jurors can be selected that provide a fair and impartial

16

evaluation of the case.

17

As a newspaper reporter in Chicago and

I think for lawyers involved, maybe even judges

18

involved and the press involved it is inconceivable that people

19

are not reading every story, but it is not inconceivable.

20

People have lives of their own.

21

deal of time reading all of this stuff or viewing it on TV.

22

More than that, the life experiences I have had suggest to me a

23

properly vetted jury will be fair and impartial, take seriously

24

their responsibilities, and can be chosen even in the community

25

in which some extraordinary event took place.

They are not spending a great

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1

So, I do not find a presumption here.

23

I have a view

2

that the way in which this has to be dealt with is by jury

3

selection.

4

approaches.

5

I have tested this against other kinds of

Mr. Demissie suggested Portland or Providence.

I have

6

looked at the question of other venues in the

7

First Circuit, and that is affected by availability of a

8

facility as well as the likelihood that some other venue would

9

be less affected and it would not be inconvenient to all of the

10

parties here.

11

that I think is potential is Springfield.

12

District, but it is different media markets, of some distance,

13

probably more than both -- although I have not walked it off --

14

more than both Portland or Providence.

15

Within the First Circuit, the only other venue
It is in this

So, in that connection you should be aware that I have

16

dealt with the Clerk's Office here to arrange for panels to be

17

assembled in both Springfield and Boston for June 30th.

18

expectation is we will be going in Boston.

19

arises, we will have available the potential for Springfield.

20

Springfield, I think, is also convenient to out-of-state

21

counsel here; just up the road, as I understand it.

22

My

If something

I should also say that I have considered and explored

23

other Districts and other Circuits.

24

necessary.

25

for the parties.

I do not think they are

There are a number that would be quite inconvenient

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1

24

But I mean to indicate that this is still a work in

2

progress.

3

impartial jury.

4

would bet that we can with the kinds of jury questionnaires and

5

tailored inquiry of the jurors that I would propose to

6

undertake.

7

We do not know yet whether we are going to get an
If I were a betting person, which I am not, I

So, let me tell you what is likely to happen, although

8

this is the subject of some further discussion.

The model that

9

I found, I think, particularly useful, and so far as I know,

10

successful, was the Bulger model, in which Judge Casper

11

structured matters so that, to apply it to this case, something

12

like 200 jurors came in in the morning on Monday.

13

out questionnaires after being instructed by Judge Casper, in

14

this case by me, about their responsibilities and the need for

15

candor in their questionnaires, but also an understanding of

16

what their larger responsibilities are.

17

They filled

Those questionnaires will be taken out, put on a disc.

18

The disc will be provided to the parties immediately.

19

do the same thing in the afternoon, another 200 people,

20

perhaps.

21

afternoon.

22

sure about the numbers yet, but I have arranged for the Clerk's

23

Office to have available a panel that can do that much.

24
25

We will

Same thing Tuesday morning, same thing Tuesday
That could come to as many as 800 people.

I am not

We are all going to be working hard that week, and so
you are going to be expected to review those discs, and

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25

1

together we will deal with those that seem to be the subject of

2

a challenge for cause, at least on their face.

3

I am not yet sure what I will do by way of individual

4

voir dire of those who survive a challenge for cause.

I have

5

in the past done each remaining available juror.

6

Wednesday and Thursday to do it.

7

least in the first case, that we have got July 4th coming up.

8

I hate to tell you, but we are going to be working on July 4th

9

if we have not picked a jury at that point in the selection

That may take

I am intensely aware, at

10

process.

11

will get it done.

12

July 4th, but we are going to be going through the process of

13

the exercise of peremptories.

14

I should not say "you are."

We all are, because we

We are not going to be bringing jurors in on

I suspect that the peremptories are going to be

15

sufficient after the kind of cause analysis that I do.

The

16

current number of peremptories will be acceptable, but I will

17

think about whether or not additional peremptories are

18

appropriate in this case.

19

But that is it in the kind of broad outline.

20

similar process will be used in Springfield, if it is necessary

21

to choose to go to Springfield here.

22

do not think it is going to be necessary, but we will see.

23

A

I have it as a backup.

In any event, turning to the change of venue, I am

24

denying the Change of Venue Motions, Mr. Kadyrbayev, No. 133,

25

Mr. Tazhayakov -- these are joined kinds of issues in

I

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26

1

No. 133 -- and Mr. Phillipos' on this kind of change of venue,

2

with the understanding that it is not over until it is over on

3

this.

4

The touchstone of this is to be sure that the

5

defendants are tried by a fair and impartial jury that is going

6

to decide this case solely on the basis of the evidence that is

7

presented to them and in light of the law that I will give to

8

them and not on some other basis, and I will try to be as

9

probing as possible.

10

The parties, I know, are familiar with Skilling, but

11

it bears rereading.

12

fair trial, free press and change of venue.

13

notorious cases that, as notorious cases sometimes do with

14

extraordinarily bad facts, create law that may be a little

15

difficult to deal with, at least in terms of bumper-sticker

16

snippets.

17

Supreme Court view with respect to this, and Justice Ginsburg's

18

opinion, I think, is very, very helpful on this.

19

I think it is the modern statement of a
There were some

Skilling, it seems to me, provides the modern

That said, I am sensitive to the dissent that

20

Justice Sotomayor had on this, and I mean to do whatever I can

21

to avoid the kinds of concerns that she I think properly raised

22

and reservations that she properly raised.

23

undertaking we are all going to keep working on.

24
25

But this is an

The bottom line of this, and maybe a reason for my
burdening you with some aspects of my own past experiences, is

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27

1

I have been and I remain of the view that a properly vetted

2

jury takes its job very seriously and provides what the parties

3

are entitled to:

4

experience over 40 years of observation and involvement.

5

there are challenges in this case, I do not now see a reason

6

why this will not be yet another piece of evidence in support

7

of that proposition for me.

8
9

a fair and impartial trial.

That has been my
While

So, that, I think, deals with, as best we can at this
point, the question of the kind of trial structuring.

10

So, then that gets us to what I will broadly call the

11

Motion to Suppress issues.

12

context as well.

13

Let me put this in the larger

There are rules about criminal discovery that are

14

meant to be observed, and it is my responsibility to enforce

15

them.

16

it has been present in this case as well, is that events like

17

Motions to Suppress that are potentially evidentiary are used

18

for dual purposes, the Motion to Suppress itself, but also for

19

obtaining discovery that the parties are not properly entitled

20

to.

A lingering concern that I have had over the years, and

21

So, I outline for you a form of procedure that I have

22

used in previous cases to ensure that the appropriate purpose,

23

that is, to test a Motion to Suppress, does not become a

24

vehicle for an improper purpose, which is expansion of

25

discovery beyond what is appropriate.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 28 of 169

1

28

I have before me a Motion to Quash some subpoenas that

2

suggests that there is a -- how best to describe this -- a

3

latitudinarian view of what is available by way of evidence and

4

the production of evidence in a Motion to Suppress, and we will

5

talk about that in just a moment.

6

I do not want to put too much emphasis on it, but the

7

Government has filed a Motion to Strike a letter brief that

8

sought, at least as a matter of correspondence, to obtain

9

reconsideration.

10

Certainly, my Session, and this District generally,

11

does not conduct proceedings by correspondence school, and so

12

letter briefs are just not appropriate, and I think counsel

13

became familiar with that after the back-and-forth.

14

raise the question of what was being asked for was some form of

15

reconsideration.

16

I am not going to strike the letter brief.

But it did

It is what

17

it is.

18

denied.

19

with respect to it, and I know of no reason to depart from that

20

ruling.

21

But to the degree it sought reconsideration, it is
I dealt with most of this discovery early on and ruled

Nevertheless, the parties have, I think quite

22

helpfully, started to proliferate the meaning of the

23

differences between burdens of production and burdens of proof,

24

and it seems to me a useful way of beginning the discussion

25

about the way in which I would like to conduct the Motion to

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 29 of 169

1
2

Suppress to deal with that.
Perhaps the most striking, kind of cutting through

3

this, as he did with the timing of trial, is Mr. Wooldridge's

4

reference to Rule 104(d).

5

29

There are two parts of this.

It seems to me that a

6

defendant has to put in play in some fashion the

7

appropriateness of the Motion to Suppress; that is, that there

8

is some reason to believe, broadly stated here, that the

9

statements that were offered by the defendant that are sought

10

to be excluded and in a related sort of way consents that were

11

given to searches and so on, were not voluntary.

12

memorandum inquiry, but is a broader factual inquiry as well.

13

That is a

One of the things that I have seen, and one of the

14

reasons why I scheduled this or stated this view about order of

15

proof, is that in the absence of affidavits, and even with

16

affidavits, it turns out that the presentation of the

17

defendants is nonexistent or does not include the underlying

18

testimony that is in an affidavit, and so it is a kind of bait

19

and switch for purposes of Motion to Suppress.

20

to me, is inappropriate, because it then turns out that the

21

Motion to Suppress was not a Motion to Suppress; it was a

22

discovery device that is not acceptable.

23

That, it seems

By the same token, this is not an opportunity for the

24

Government to goad the defendants into offering testimony.

25

While the testimony is immunized to the degree necessary, that

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30

1

is to say, it cannot be used against them at trial, it is also

2

the case that if there are inconsistencies in trial testimony

3

and testimony that is given in a Motion to Suppress, then it is

4

available, and it is also available for consideration, if it

5

ever comes to that, in sentencing in terms of the candor of the

6

defendants.

7

So, it is a serious choice that a defendant has to

8

make concerning a Motion to Suppress.

Stepping back a little

9

bit on this, I have affidavits submitted by the defendants.

I

10

do not know if the Government takes the position, it seems to

11

me to be a hard position to take, that those affidavits do not

12

state a prima facie case for lack of voluntariness.

13

Do you take that position?

That is to say, if the

14

only evidence in this case were those affidavits, then it seems

15

to me that there is a question, factual question, about

16

voluntariness.

17
18

(Pause)
THE COURT:

19

You will not have until 11:00.
(Laughter)

20

MR. CAPIN:

Military time, your Honor?

21

I think it's a close call.

I think certainly with

22

regard to Mr. Phillipos, I think the Court could take

23

everything he says in his affidavit and deny the motion on its

24

face, because it comes nowhere near satisfying the burden of --

25

it comes nowhere near, viewed in the light of what the Court

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 31 of 169

31

1

could take judicial notice of, finding that there was either

2

involuntary waiver of Miranda or an involuntary confession for

3

the purposes of due process clause, or any consent form he

4

signed was done involuntarily.

5

A somewhat closer call with regard to the other

6

defendants, but I think that, while very colorful, what they

7

say in their affidavits is somewhat mushy.

8

lot going on when they were called out of their residence, a

9

lot that the Court could take judicial notice of and find that,

I mean, there was a

10

based on what we all know, it was a Terry stop.

11

of duration, of time and how they were spoken to, I think that

12

the prudent course, for the reasons you have articulated, is to

13

have the defense go first, articulate more specifically what it

14

is that they are saying was done on that day, let that be

15

fleshed out somewhat, with the understanding that they do have

16

the safety of Simmons and the Constitutional protections

17

against having that used at trial against them.

18

So, I think the answer is no.

19
20

And questions

I think our position is

they haven't really made a prima facie case.
THE COURT:

If forced to come to that conclusion now,

21

I think it probably is a close question, but I would be

22

inclined to say I will have a Motion to Suppress evidentiary

23

hearing on the basis of that.

24
25

That leads me to the second point, which is what
appears to be ambivalence, perhaps, on the part of the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 32 of 169

32

1

defendants, the suggestion that, while their affidavits are

2

sufficient, they have not decided whether to testify.

3

problem there is that if they do not testify, then it is a bait

4

and switch.

5

prepared to support by actual testimony, and that is the

6

potential abuse that I want to address.

7

The

They have submitted an affidavit that they are not

Now, I say "abuse."

I do not mean to make this

8

personal but to understand that in order to enforce the rules

9

with respect to discovery and observe the Constitutional rights

10

of the defendants, and balance them together properly, I think

11

it is not appropriate for a defendant to file an affidavit and

12

then not be prepared to support it with live testimony; because

13

the grounds for having a hearing, which are that there is a

14

basis for finding involuntariness, however close the question,

15

disappears like the mists over San Clemente if they do not

16

testify.

17

last minute, to some degree, by Mr. Wooldridge seems to me to

18

be helpful.

19

And that is where the insight provided, again at the

What I propose to do, or would propose to do, is to

20

say that each of the defendants may support their Motion to

21

Dismiss with direct testimony and then ordering my proof,

22

because it is necessary to limit this to the issues involved.

23

If it is sufficient, raises the question sufficiently, again,

24

having in mind Mr. Capin's reservations about whether, in fact,

25

it does, but in my view that I am likely to think it does for

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 33 of 169

33

1

present purposes, and with the direct testimony of the

2

defendants, and then turn to the Government and say, "So, what

3

evidence do you have that it was voluntary," and proceed in

4

that fashion.

5
6

That, it seems to me, balances the respective rights
and obligations of the parties in this matter.

7

MR. STAHL:

Your Honor, may I be heard on that?

8

THE COURT:

Sure.

9
10

I am outlining it because I want

you to understand it, and I am going to take a break as well,
but I want to hear you before we take the break on that.

11

MR. STAHL:

Sure.

12

THE COURT:

I do not think it is the case that someone

13

just gets a Motion to Suppress hearing by saying, "I would like

14

one."

15

here, but they are minimal, putting into play the issues.

16

is why the structure that I have outlined is the one that I am

17

disposed to pursue here.

18

listen to whatever you have to say, because this is a somewhat

19

more refined version of what we discussed earlier.

I do think that there are foundational requirements

20

That

But, as I said, I will obviously

So, without holding you to a snap response to a

21

late-filed Wooldridge motion, I am interested in what you have

22

to say.

23

So, Mr. Stahl.

24

MR. STAHL:

Your Honor --

25

THE COURT:

I do not mean to cut you off.

If you want

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 34 of 169

1

34

to take the break at this point to think about --

2

MR. STAHL:

That would be helpful.

3

THE COURT:

-- this kind of outline.

4

Is there anything else that people want to take up

5

before that break?

6

going to structure the Motion to Suppress, if it goes forward;

7

that is, if there is reason to say that there is a factual

8

basis for this.

9

Because now we are talking about how we are

MR. WOOLDRIDGE:

Before we do have a restroom break,

10

your Honor, I would say one thing, and that we submitted an

11

affidavit in support of our Motion to Suppress.

12

comes back, and they make a bunch of factual allegations but

13

don't support their motion in opposition with any affidavit.

14

It would have been nice -- like if we have to do an affidavit,

15

then the Government should also have to do an affidavit.

16

THE COURT:

The Government

This, I think, is in the class of

17

oppositions or observations that I call the "Prodigal Son"

18

objections to procedures.

19

the Government could -- they should have, but they did not, but

20

this is fine points -- the Government could attach an affidavit

21

of the case agent with every one of the 302s and other reports

22

of investigation.

23

it, and, frankly, it was not altogether that clear that they

24

should.

25

process addresses that irrespective.

There is no question in my mind that

That would be sufficient.

They did not do

But this addresses that irrespective, that is, this
The Government could

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 35 of 169

1

stand up after the testimony of the defendants and say, "We

2

have nothing else to offer," and if they do, I will make the

3

determination on the basis of what has been provided with

4

respect to voluntariness by the defendants.

5

So, I understand the sense of resentment and

6

disappointment that they did not do what you did; they did

7

square their corners the way you did, at my suggestion, but

8

that is not going to trip this.

9

MR. WOOLDRIDGE:

I just think in all fairness, your

10

Honor, if we submit an affidavit, and if they don't submit an

11

affidavit, that's our proof and your Honor should rule that

12

way.

13

35

We shouldn't have to come forward with testimony.
THE COURT:

One thing that is clear from the

14

affidavits you submitted is that, in order to resolve them,

15

there is a credibility determination that has to be made to

16

establish the grounds for supporting suppression.

17

existence of the affidavit is enough for me to convene a

18

hearing, as I have, for purposes of taking testimony, which I

19

will, but it is not enough simply to submit the affidavit and

20

say that is enough to show -- at least these affidavits --

21

enough to show, or at least enough to satisfy me that you have

22

shown that statements, all of them, were involuntary.

23

MR. DEMISSIE:

24

THE COURT:

25

MR. DEMISSIE:

The

If I may, your Honor?

Yes, Mr. Demissie.
Just, I'm asking for clarification,

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 36 of 169

1

your Honor, and what you have outlined as the intended

2

procedure.

3

witnesses other than the defendants themselves?

4

36

Is the Court not allowing the defendants to call

THE COURT:

No, you do misunderstand, and it is useful

5

that you ask for clarification.

I am not forestalling

6

anything.

7

evidence, which is very much in the control of the Court.

8

order the proof in the case, particularly when it is non-jury.

9

I do it for purposes of efficiency, for purposes of clarity,

I am talking about a course of the presentation of
I

10

and for purposes of serving the underlying values that I have

11

outlined here.

12

You may well have other witnesses that you want to

13

offer here, and if at the conclusion of testimony by the

14

defendants, or a defendant, I think it is insufficient to go

15

forward on the question of voluntariness -- I do not now

16

believe that is the case in light of what I have read in the

17

affidavits -- then I will afford you that opportunity.

18

MR. DEMISSIE:

I think what I am asking is in the

19

order of witnesses that we call, is the order to require us to

20

call the defendants first before we call other witnesses?

21

THE COURT:

Yes.

The defendants will be called first

22

to establish that they have a grounds for a Motion to Suppress.

23

On the basis of what I now know, if they do not call them, then

24

those affidavits are meaningless.

25

MR. DEMISSIE:

I believe, your Honor, there are ways

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37

1

that we can make of showing by calling other witnesses other

2

than the defendants, and the defendants should then be able to

3

be in a position to listen to the testimony of other witnesses,

4

evaluate what has been presented and then decide to testify or

5

not.

6

THE COURT:

Well, that is a refinement, and I think I

7

understand it.

If that is the way you want to proceed, you

8

can.

9

witnesses -- and let me be clear about this.

But I will tell you, after listening to those other

10

mean you call the Government's witnesses.

11

going to call those witnesses.

12

MR. DEMISSIE:

13

THE COURT:

This does not

The Government is

All right.

This does not mean that you have these 17

14

subpoenas that go well beyond anything that is available for

15

discovery and that seem to me to be nothing more than an

16

effort, another effort, at reconsideration of discovery.

17

So, I will see what the witnesses are.

We are going

18

to talk about those Motions to Quash in a bit.

19

may be strategy or tactics for the parties, this is fundamental

20

to me of exercising my responsibility to hold the scales true

21

in balancing the several considerations that are involved in

22

this kind of matter, which I have outlined here.

23

So, back to the earlier question.

But, while it

If you think that

24

you can show involuntariness by some other means than the

25

defendants themselves, in short, if you are not relying on

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 38 of 169

1

their affidavits, then I will consider it.

2

to be a case of, "Tell you what.

3

calling the Government's witnesses."

4

do that, unless there is a foundation for it.

5

38

But it is not going

We think we can do this by
Because you do not get to

Now, it may be that somebody was next to Mr. Phillipos

6

at a time in which there was some sort of coercion that took

7

place, just to use that as an example -- I do not know if that

8

is the case.

9

that.

10
11
12
13
14

Sure, put that witness on, and I will consider

MR. DEMISSIE:
interview.

Or the person who actually did the

We will take the break.

THE COURT:

No, no.

I think you understand my point.

You do not do it that way.
MR. DEMISSIE:

So long as there is the issue of

15

coercion that involves that individual.

16

witnesses just who are present, but if there is an

17

individual --

18

THE COURT:

I don't intend to call

As far as I am concerned, you do not get

19

to the point of a Motion to Suppress and the testimony

20

regarding the Motion to Suppress by saying, "I would like a

21

hearing, and I am going to call the other side."

22

a foundation for the hearing.

23

Mr. Phillipos' affidavit.

24

whether or not that is the grounds.

25

if you are not prepared to support it by testimony like that,

You provided

The foundation was

You are going to have to decide
If it is not the grounds,

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 39 of 169

1

then I will have to think about it.

2

hearing by saying, "I would like a Motion to Suppress.

3

way, bring them all in."

4

MR. DEMISSIE:

5

THE COURT:

39

But one does not have a
By the

You have got to have a foundation.
I understand.

The foundation you provided was that

6

affidavit.

Now, if there is somebody else who is going to say

7

Mr. Phillipos -- I am somewhat surprised that I didn't see

8

their affidavit -- but if there is somebody else there is a

9

good-faith basis for believing that will testify in a fashion

10

that is supportive of Mr. Phillipos's position, I will

11

obviously consider that.

12

But right now, my view is that the way in which this

13

is going to be ordered is it is going to be the testimony of

14

the defendants, that is, direct testimony, not

15

cross-examination.

16

defendants until after there is an offer from the Government,

17

to which you can cross-examine during that time period.

18

It will not be cross-examination of those

MR. WOOLDRIDGE:

Your Honor, I have something that I

19

think may allow the defendants to meet that level that you are

20

asking for, and that is the Government had their immunized

21

witness that we all had an opportunity to cross-examine.

22

didn't bring the transcript here today, but much of what she

23

said is what's contained in the defendant's affidavit, and I

24

don't know if maybe we should submit that to your Honor.

25

THE COURT:

You can.

I

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1

MR. WOOLDRIDGE:

2

THE COURT:

40

Okay.

I have reviewed portions of it, as you

3

know.

I have actually provided, I believe, a dramatic reading

4

from it the last time we were here.

5

my evaluation of it did not establish in my own mind lack of

6

voluntariness.

But you can certainly submit that.

7

MR. WOOLDRIDGE:

8

THE COURT:

9
10

You may have gathered that

Okay.

And if that is what you want to rely on,

okay.
MS. SIEGMANN:

Your Honor, I just was wondering, so

11

you just indicated that the Government's not going to be able

12

to cross-examine the defendants.

13

THE COURT:

Not initially.

I have not been clear

14

about this proposition.

This is the ordering of proof.

I am

15

going to hear direct testimony, because that is going to be the

16

shape of the 104(d) issue that Mr. Wooldridge raised.

I am

17

going to hear the direct testimony of the defendants.

Then, if

18

that creates an issue, sufficient issue, and my view is that it

19

is likely to, if it follows more or less the outline of the

20

affidavits, then I will put the Government to its proof.

21

Your proof is to show that these were, in fact,

22

voluntary statements, and you will call whatever witnesses you

23

call to do that, and at the conclusion of that you will have

24

the opportunity to cross-examine the defendants, I believe, if

25

it remains an issue.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 41 of 169

1

41

Now, it may be that after I hear the Government's

2

proof I am going to say, "This is not voluntary at all.

3

is the best the Government can do."

4

proof, because the burden of proof in this context for most all

5

of these challenged statements is on the Government.

6

MS. SIEGMANN:

And that is the order of

I understand that, your Honor, but the

7

defense will get an opportunity to cross-examine the

8

Government's witnesses when they testify.

9
10

THE COURT:

This

Right.

MS. SIEGMANN:

And the defendants, by their affidavits

11

and their testimony, will then be putting their credibility in

12

question, and the only way we can actually test that is by

13

cross-examination.

14

THE COURT:

You are in the same position as Mr.

15

Demissie, and that is saying, "Oh, well, we get to

16

cross-examine the defendants themselves if we put on our own

17

case," and that is just simply not true.

18

whether or not you have made a prima facie -- probably more

19

than that -- showing that these are voluntary, and if you have,

20

then we will move to the next stage, which is the

21

cross-examination of the defendants themselves.

22

not, then the defendants have done all that is necessary to get

23

their Motion to Dismiss evidentiary hearing, and the Government

24

does not get its chance to do some sort of discovery.

25

I will determine

If you have

Let us be candid about this in practical terms.

What

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42

1

happens?

There are created prior statements, inevitably,

2

because we are all practical people, we understand what happens

3

in examination.

4

greater or lesser degrees of inconsistency.

5

Motion to Suppress hearing is not to create inconsistencies or

6

additional opportunities for cross-examination.

7

at the issue of whether or not here it is voluntary.

There are inconsistencies of some sort,
The office of the

It is to get

8

So, in order to balance all of those separate values,

9

I am going to order the proof in this fashion, or I intend to.

10

I am, obviously, going to hear more from you, and in the spirit

11

of Mr. Wooldridge's "Prodigal Son" observation, let me offer

12

this observation.

13

sauce for the gander in this.

14

consider the practical aspects of how you put on your

15

respective cases for this, and this is the structure in which I

16

am going to follow, I think, but, again, subject to some

17

discussion.

18
19

There is sauce for the goose and there is
So, you are both going to

So, why don't we take -- I think a half hour might be
sufficient.

20

MR. CAPIN:

Could I just mark one issue, your Honor?

21

THE COURT:

Sure.

22

MR. CAPIN:

As I understand it, the Court is denying

23

the Motion to Quash as -- denying the motion -- I'm sorry.

24

Allowing the Motion to Quash the 17 subpoenas.

25

THE COURT:

Not yet.

No.

I have to hear -- if somebody

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 43 of 169

43

1

explains to me why it is necessary to have these subpoenas --

2

and they are subpoenas duces tecum, which seem to have been

3

done not by a human being but, perhaps, by a word processor who

4

cannot spell "memorandum."

5

MR. CAPIN:

And if we are going to deal with it later,

6

I simply want to point out it is dues tecum as regards to 17 of

7

them.

8

and that's Megan Dolan.

As regards to one of them, it's also ad testificandum,

9

THE COURT:

We will talk about that.

None of them, I

10

think, are the Government's initial witnesses, but maybe they

11

are.

12

MR. CAPIN:

They're not, your Honor.

13

THE COURT:

All right.

THE CLERK:

All rise.

14
15
16

break.

(The Honorable Court exited the courtroom at 10:20 a.m.)

17
18
19
20
21
22

So, we will take a half-hour

(Recess taken)
THE CLERK:

All rise.

(The Honorable Court entered the courtroom at 10:55 a.m.)
THE CLERK:

This Honorable Court is back in session.

You may be seated.
THE COURT:

Well, just one housekeeping matter, and

23

that is, the parties are expected to be here on time when we

24

take a break.

25

be in court when I say I will be in court.

If you are not here, that is your fault.

I will

So, being outside

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 44 of 169

1

for ten minutes past the time period is probably not a good

2

idea, if your purpose is to represent your clients.

3

So, where do we stand now?

4

MR. STAHL:

44

Mr. Stahl?

Thank you, your Honor.

I will put my

5

position on the record for you and hope to have you modify your

6

view of this.

7

Your Honor, I think that it's clear by the Court's

8

statements, and even the Government, although they're hedging,

9

I think the defendants have clearly met their burden of

10

persuasion.

11

submitted a very detailed affidavit under oath about the

12

circumstances of the seizure, the circumstances of the

13

statements, the lack of voluntariness, the circumstances about

14

understanding, the circumstances about holding an individual

15

for 12 hours, and then going back the next day and seizing them

16

again, using the Immigration's arrest, even though the FBI was

17

working hand in glove.

18

I'll talk about Mr. Kadyrbayev, in particular.

We

We have, under the case law, then, the District of

19

Massachusetts, Levasseur, citing the Fifth Circuit, Longmire,

20

as we submitted in our reply brief that your Honor allowed us

21

to file, met the burden of production.

22

has the burden.

23

have nothing before you.

24

"We all know what happened."

25

know what happened that's under oath of any form is from the

The Government, then,

They have submitted nothing under oath, they
Mr. Capin stood up before and said,
Quite frankly, the only thing we

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 45 of 169

45

1

defendants themselves that submitted affidavits.

2

whatever people may think they know about the case.

3

has been nothing before your Honor about the facts of the case,

4

except as presented by the defense.

5

The rest is
But there

So, I believe that the case law is clear that it's now

6

up to the Government to go forward and put its witnesses on to

7

show that this warrantless search, the warrantless seizure of

8

these individuals, that the statements were then voluntary and

9

their will was not overborne, and that they knowingly and

10

intelligently waived their rights.

11

unwarranted seizures of these individuals, and then they

12

supposedly got consent searches.

13

These were un-counseled,

So, we have put that all into play under oath by the

14

detailed affidavits.

15

hearing, and now we are talking about the order of the hearing.

16
17

THE COURT:

We have now met our burden for the

Let me ask you straightforward, are you

going to permit cross-examination of the affidavit?

18

MR. STAHL:

Excuse me?

19

THE COURT:

Are you going to permit cross-examination

20

of the affidavit?

21

MR. STAHL:

Your Honor, I think that the --

22

THE COURT:

Well, at the risk of being too peremptory,

23
24
25

but I will be peremptory.
MR. STAHL:
Are you saying --

Yes or no?

Perhaps I don't understand the question.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 46 of 169

1

THE COURT:

You have offered an affidavit.

46

The

2

question is whether or not that affidavit is illusory in the

3

sense that it will not be tested because the defendant will not

4

be offered as a witness in the case, nor will he be permitted

5

to be cross-examined.

6

today gone tomorrow, it is evanescent, it is illusory, and I do

7

not find that it provides an adequate foundation.

8
9

So, if it is an affidavit that is here

So, you can answer the question yes or no.

Are you

going to permit examination?

10

MR. STAHL:

Well, if it becomes necessary.

11

THE COURT:

Let me just be clear.

That is an issue

12

about necessity.

There are a variety of ways of dealing with

13

this, I suppose.

I can say, upon the representation of a

14

defendant that he will submit to cross-examination, I will

15

permit the direct examination to be the affidavit itself, and

16

then we will move on.

17

That is one way of dealing with it.

But I must tell you that if the foundation is not

18

sustained, if it proves to be made of sand, then it is no

19

foundation at all.

20

or not the affiant is going to offer himself for

21

cross-examination, or the party is going to offer the witness

22

for cross-examination.

23

MR. STAHL:

That, at the outset, depends upon whether

I guess what I am saying, Judge, is we

24

have a sworn affidavit.

It's not illusory.

25

under penalties of perjury.

It's notarized.

It's sworn to
And my

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 47 of 169

47

1

understanding was that your order was -- that you were

2

proposing, you hadn't ruled yet, is the defendant would testify

3

on direct.

4

him through basically the outlines of his affidavit.

So, I would put Mr. Kadyrbayev on, and I would walk

5

THE COURT:

However you want to do it.

6

MR. STAHL:

However I want to do it, and somehow your

7

Honor would judge the credibility of Mr. Kadyrbayev's testimony

8

without the Government crossing just yet.

9

THE COURT:

No.

I would determine whether or not

10

there is a foundation for saying that we should have a Motion

11

to Suppress hearing.

12

available for cross-examination.

13

have gone beyond that.

14

sufficiency, except as an instrumental sort of thing, but it is

15

sufficient to justify -- the facts provided are sufficient to

16

justify a hearing, but only if that can be subject to

17

cross-examination.

18

MR. STAHL:

The affidavit is meaningless unless it is
It could lack sufficiency.

I

I have not made a determination about

The way I read the case law, and the way

19

that I have seen other suppression hearings -- and I'm just

20

doing that by general experience; I understand your Honor does

21

in your courtroom what you do -- is that we have made the prima

22

facie showing.

23

to put its agents on, not for a fishing expedition, and I will

24

explain the subpoenas in a moment, because it dovetails into

25

this, to put their agents on to talk about the voluntariness,

The Government now has the burden of persuasion

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 48 of 169

So, "What was the timing?"

48

1

the timing.

"When did you first

2

go?

3

term they would like to use.

4

them?"

5

time was that?"

6

justified continuing?"

7

they volunteered to go to the State Police Barracks, establish

8

that it was voluntary for the next 12 hours, and then I get to

9

cross, and your Honor would then judge at the end of that, the

When did you first seize these individuals," or whatever
"When did you first handcuff

"For how long were they cuffed?"

"For what period of

"What justified that seizure?"

"What

Establish that it was voluntary that

10

Government going through with the burden of persuasion, has

11

enough been heard that your Honor has decided that there it not

12

voluntary by the testimony and the cross of the Government's

13

witnesses, because it's their burden of persuasion.

14

And then, if not, your Honor would tell us at the end

15

of that presentation, "Well, Mr. Stahl, you have a choice now,

16

because I am not completely convinced, or I'm not convinced

17

enough, based upon what I have heard from the agents that you

18

have shown, demonstrated that it's involuntary.

19

choice now to put your client on."

20

client would testify, and then your Honor would decide whether

21

the client is subject to cross.

22

the case law.

23

the issues that matter for this hearing into play, that your

24

Honor, reading that affidavit, can determine that there are

25

substantial issues of fact about the voluntariness and the

You have a

And at that point then the

That seems to make sense under

And that we've come forward with enough to put

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 49 of 169

1

coercive atmosphere and whether there was a violation of

2

Miranda, and, therefore, it's the Government's obligation to

3

then go forward.

4

THE COURT:

5

passing in the night on this.

6

can support your motion without the affidavit.

7

you can on this record.

49

I think we are to some degree ships
I will hear you if you say you
I do not think

8

MR. STAHL:

I'm sorry.

I missed --

9

THE COURT:

I do not think you can on this record

10

support the motion without the affidavit.

11

the affidavit, and I ask myself, is this an illusion, illusion

12

in this sense, that if it puts it into play the defendant does

13

not get to pick up the ball and leave the field after that.

14

has to be subject to examination.

15

in which the examination can proceed.

16

happy with it either, but it seems to me the clean way to test

17

all of the relevant dimensions of this.

18

So, then I look at

He

Now, I have ordered the way
The Government is not

Now, let me add something further.

Oddly enough,

19

except for the discovery opportunities, scheduling a Motion to

20

Suppress and having a hearing on a Motion to Suppress and

21

establishing voluntariness before the jury is sworn, which is

22

what the Rules call for, or permit, is a benefit to the

23

Government.

24

make a determination at trial, whether or not it is voluntary.

25

If I make the determination at trial it is not voluntary, I

I still have to make a determination, will have to

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 50 of 169

50

1

will order a mistrial, and the Government will not get the

2

opportunity to retrial, because the Government will have taken

3

a position that did not permit before trial the resolution of

4

this case.

5

protection for the Government.

6

macho and they will push their way through it, but I think this

7

U.S. Attorney's Office knows that if I find that it is not

8

voluntary, they are dead, and it is not going to be inflected

9

by some idea of I will let them save themselves.

10

That is that question of voluntariness.

It is a

Now, they may view this as

No.

The whole process of criminal procedure is a kind of

11

Rube Goldberg machine that adjusts the balance of advantage

12

among the parties, and this mechanism of dealing with the

13

presentation of evidence with respect to voluntariness that I

14

have outlined is designed to deal with that.

15

get to say that, "I have an affidavit that is sufficient, but I

16

am not going to represent to the Court that the defendant is

17

going to testify in cross-examination," because if you say

18

that, if you are not prepared to say, "I will permit the

19

defendant to be cross-examined at the appropriate time," then

20

the affidavit is meaningless.

21

for the foundation that is necessary for a Motion to Suppress.

22

But you do not

It does not provide any basis

The parties will make their own, as I keep saying,

23

tactical decisions with respect to all of this, but in the

24

final analysis, if there is not a foundation for the Motion to

25

Suppress because I am presented with evidence that is written

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 51 of 169

51

1

in disappearing ink, that is, it cannot be challenged, then I

2

am not going to have a Motion to Suppress, and we will have

3

these issues resolved at trial.

4

Now, the Government may say, "Wait a minute.

We want

5

some protection on this," after reflection, but that is their

6

choice.

7
8

MR. STAHL:

I would like to follow up for

clarification.

9

THE COURT:

Sure.

10

MR. STAHL:

If I understand correctly, it is you would

11

be amenable, I think, if I understood correctly, for the

12

Government to go first with its burden of persuasion, as long

13

as I represent to the Court that at the end of their case,

14

their order of witnesses, that if your Honor finds that it is

15

insufficient for you to rule at that stage, that I would put my

16

client on, and then he would be subject to cross-examination.

17

THE COURT:

Yes, and bearing in mind that the

18

affidavit, which may be the basis for it, the refinement that I

19

might offer on this is I will receive the affidavit.

20

treat that as the direct testimony of the defendant, rather

21

than going through the process of walking the defendant through

22

his affidavit.

23

issues raised in that affidavit, that is, the cross-examination

24

that the Government could conduct ultimately on that, but also

25

the issues that can be raised in the examination of the

I will

The motion hearing will be limited to the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 52 of 169

1

witnesses will be limited to what is fairly raised in an

2

affidavit.

3

MR. STAHL:

Would I be permitted to do some direct to

4

amplify things that are in there and to deal with some issues

5

that the Government has presented through some recent

6

discovery?

7

THE COURT:

52

Yes, you would.

But this is based upon

8

representation that the defendant will be subject to

9

cross-examination, if cross-examination becomes necessary.

10

Now, we are all doing this kind of hypothetically.

11

sense -- it is more than a sense, because I have read these

12

papers fairly carefully -- is that the Government is going to

13

raise issues sufficiently for me to say the question of

14

voluntariness is the Government has met a burden to show that

15

these were voluntary, and that we are going to expect the

16

defendant to testify.

17

or you to be sitting there, I do not think you are, that maybe

18

the judge will decide not to have testimony.

19

that is going to be the case.

20

MR. STAHL:

21
22

My

I do not want them to be sitting there,

No.

I hear you.

I do not think

I hear you.

With that,

could I have a few moments with co-counsel?
THE COURT:

Sure.

But let me just talk to each of the

23

parties, including the Government, which may or may not have

24

been fully sensitive to the idea that if they choose not to

25

have a Motion to Suppress even on this basis, that ultimately I

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 53 of 169

53

1

am going to be resolving this, and if I have to resolve it at

2

trial, they are exposed because jeopardy is attached, and they

3

have made the choice, the tactical choice, to let jeopardy

4

attach before there is a resolution of the question of

5

voluntariness.

6

MR. STAHL:

Your Honor, I would just like to reserve

7

the issue of the subpoenas.

8

right now, but I would like to explain those at some period, I

9

think it will become apparent, and the purpose.

10

THE COURT:

I don't want to clutter the record

What I propose to do, not that this is one

11

step forward, one step back, but what I propose to do is hear

12

all of the parties and then give you little bit of time to

13

think further about it.

14

MR. STAHL:

Thank you.

15

THE COURT:

Mr. Wooldridge.

16

MR. WOOLDRIDGE:

Sure, your Honor.

Your Honor, with

17

all due respect, I oppose your ruling.

18

defendant has to be cross-examined on his affidavit.

19

that if you did shift the burden on us for additional

20

production, I think that we should be able to call whatever

21

witnesses that we want.

22

agent s are the Government's witnesses.

23

THE COURT:

No.

I don't think that the
I think

I understand that you say that the

I say that there is no basis, unless

24

you have a good-faith basis for showing that there is

25

involuntariness, you do not get to call somebody.

As it stands

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54

1

right now, I am not aware of a good-faith basis for you to say

2

that the Government agents are going to testify differently

3

from the 302s and the various discovery materials.

4

Now, let me pose a hypothetical that may clarify this.

5

MR. WOOLDRIDGE:

6

THE COURT:

Of course, your Honor.

You ask for a Motion to Suppress and for a

7

hearing on a Motion to Suppress because you contend, or your

8

client contends that he was beaten up.

9

But that he was beaten up, okay?

10
11
12

MR. WOOLDRIDGE:

That is not this case.

That is hypothetical, not in this

case.
THE COURT:

Right.

I would require the affidavit to

13

be submitted.

I would not permit you to call the agent unless

14

you had a good-faith basis for saying that the agent would

15

agree that he beat him up, even in the face of a 302 that says

16

otherwise.

17

Now, how would you do that?

18

a restaurant and say it to a friend:

19

testify, I would have to say I beat him up."

20

good-faith basis.

21

like to inquire of this guy, because maybe I can get him to

22

contradict himself."

23

Well, the agent may be at
"You know, if I had to
That would be a

But you do not get to say, "Gee, I would

That does not happen.

So, you have to have a good-faith basis for alleging

24

that these other witnesses would say something that is in

25

support of your Motion to Suppress.

Otherwise, we run into the

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1

problem that I have identified before, of transgressing the

2

limitations on discovery that the Supreme Court, through the

3

promulgation of the Federal Rules of Criminal Procedure, has

4

outlined and the cases have developed.

5

MR. WOOLDRIDGE:

I understand, Judge.

I believe my

6

good-faith basis is the facts that me and my client allege in

7

the Motion to Suppress, and then the Government hasn't put

8

anything into play that --

9
10

THE COURT:

Is your client going to permit himself to

be cross-examined?

11
12

MR. WOOLDRIDGE:

THE COURT:

14

MR. WOOLDRIDGE:

16

I don't think we are doing that,

Judge, at this time.

13

15

ruling.

That's all.
THE COURT:

So, I understand your position.
I'm just making my objection to your

Thank you.
I think you have raised all of the issues

17

that you want to raise about this.

18

foreclose you.

19

understand.

I am not trying to

Your client does not want to testify, I

20

MR. WOOLDRIDGE:

21

THE COURT:

22

Yes.

23

MS. CHURCH:

24

Mr. Phillipos also objects to the procedure as

25

55

No, Judge, not under that scenario.

Right, understood.

If I could be heard, your Honor.

outlined by the Court, and one of the major reasons, as your

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56

1

Honor is possibly aware, is that that is not the procedure that

2

is implemented by, from what I understand, any of the other

3

Federal District Court Judges in this Court.

4

heard of a Federal District Court Judge in this court going

5

through that procedure.

6

I have never

The reason that that's important is not that every

7

judge has to follow the same procedure, but it's an issue of

8

parity for these defendants.

9

right.

That this is a very substantial

It's a right described in Jackson v. Denno.

It has to

10

be both a fair hearing and a reliable determination of

11

voluntariness.

12

It's the burden of the Government to prove that these

13

statements are voluntary.

14

defendant.

15

in place to force our client to choose, really we are choosing

16

between a trial right and a very substantial Motion to Suppress

17

right, because as --

18
19

22

And to allow this procedure that the Court has put

THE COURT:

Is your client going to expose himself to

cross-examination?

20
21

It's not the burden of the

MS. CHURCH:
himself."

That's exactly the word, "expose

No, your Honor, he is not.
THE COURT:

So, let me just be clear about this.

23

Apart from the invocation of rights and purported knowledge of

24

the way in which judges in this court proceed, which I do not

25

necessarily share, the short of it is that he will put forth an

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57

1

affidavit that he is not willing to or for your reasons does

2

not want to permit to be tested before trial.

3

there is no foundation.

4

not get a Motion to Suppress hearing on the basis of a

5

narrative that disappears, because it cannot be tested.

6

MS. CHURCH:

That means that

It is absolutely illusory.

One does

It's not illusory for an extremely

7

important reason, and that is that that affidavit is admissible

8

at trial for cross-examination purposes.

9

see affidavits submitted in Motions to Suppress that are six,

So, you will often

10

seven lines long, and they say, "I was arrested without

11

probable cause."

12

THE COURT:

Or you see affidavits in which they say,

13

"This is some of the facts but not all of the facts, and I

14

purport to elucidate those facts further," as is your

15

affidavit.

16

So, the point I guess --

MS. CHURCH:

Just as the police do and the FBI does in

17

their 302s.

18

everything," because the details of these cases, especially in

19

this highly charged environment, are complicated.

20

wrote their notes sometimes four or five days after the

21

incident occurred, and in this case the events occurred over a

22

year ago.

23

not be everything, because --

24

THE COURT:

25

At every trial they will testify, "This is not

These agents

So, it's not illusive to put in there that this may

Why is it not illusory to say, "I will put

in only my side, and they do not get to cross-examine?"

Why is

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58

1

that not illusory?

2

traditional Fifth Amendment treatment of a witness who gets on

3

the stand, testifies on direct examination, and then refuses to

4

be crossed?

5

examination is stricken.

6

Why is that not very much the same as the

At that point it is stricken, the direct

MS. CHURCH:

Because the important part of this case,

7

your Honor, is that it's the Government's burden of proof, and

8

traditionally the party with the burden of proof has to go

9

first, and that means that the Government has to put their

10

witnesses on.

11

If, after hearing --

THE COURT:

If I may, just address this question.

12

there any foundational requirement?

13

even have to file an affidavit, you just stand up and say,

14

"There are statements in this case, we want a hearing?"

15
16

MS. CHURCH:

Is

Do you just simply not

In this case, your Honor, you have

already indicated that the affidavits made out --

17

THE COURT:

We are testing the analysis that you

18

provided.

19

that you provided, that all you have to do is say, "We want a

20

hearing; there is a question of voluntariness because there is

21

a statement, and we have to decide whether or not the witness

22

was voluntary"?

23

So, is it your position, under the kind of analysis

MS. CHURCH:

Traditionally, your Honor, the affidavit

24

is sufficient.

And, more importantly, in this case we expect

25

the agents to testify truthfully, and we expect the agents to

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1

get up and testify consistently with what our client has

2

indicated occurred during the numerous and repeated

3

interrogations, one of which was 4:00 in the morning.

4

THE COURT:

5

MS. CHURCH:

6

THE COURT:

59

If I may.
Sorry.
Apart from the sterile incantation of the

7

Baltimore Catechism regarding the availability of a hearing no

8

matter what in a Motion to Suppress, I would like you to answer

9

my questions.

10

So, I guess the first question that I have is, do you

11

get a hearing, irrespective of whether you have an affidavit or

12

not, by merely asking for it and saying, "There are a series of

13

statements in this case -- "

14

MS. CHURCH:

15

THE COURT:

16

Yes, your Honor.
" -- now it is the Government's

responsibility to deal with that"?

17

MS. CHURCH:

No, your Honor, and that's why we did

18

file the affidavit, but we know that affidavit is subject to

19

cross-examination of our client at trial, so we have to make

20

sure --

21

THE COURT:

22

MS. CHURCH:

23

THE COURT:

Only if your client testifies at trial.
Correct.
And so, what happens is, you file an

24

affidavit, and then you effectively withdraw it as a tactical

25

choice.

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1

MS. CHURCH:

2

THE COURT:

3

60

We can't, though.
Sure you can.

You do not put the

defendant on.

4

So, what you have done is you have obtained a basis,

5

as you say -- you have to have an affidavit to have a Motion to

6

Suppress hearing.

7

to Suppress hearing, and never intended to permit the defendant

8

to be examined, even within the confines of immunity that is

9

provided in a Motion to Suppress.

You filed an affidavit, you got the Motion

That is what I mean about an

10

illusory affidavit.

11

gone tomorrow, a bait and switch is I think not an unfair way

12

of saying that.

13

MS. CHURCH:

It is an affidavit that is here today,

But it would be different, your Honor, if

14

it were not a case where the Government had the burden.

15

the Government clearly has the burden.

16

forward to prove the voluntariness of these statements.

17

defendant needs to just raise enough of an issue to obtain a

18

trial.

19

So,

They clearly have to go
The

That is the standard procedure that is followed.
THE COURT:

That is a burden, and that is called the

20

"burden of production," and if the burden of production is

21

illusory, then it has not been meet, and it is illusory if it

22

is here today and gone tomorrow.

23

So, that is the conundrum.

I understand your position

24

that you can file an affidavit and you do not have to back it

25

up, but that is not my position with respect to that.

And that

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61

1

is what is fundamental for purposes of having a Motion to

2

Suppress hearing.

3
4

MS. CHURCH:

And, your Honor, again, we are starting

to go around a little bit in a circle here, but --

5

THE COURT:

6

MS. CHURCH:

At least one of us is.
-- we are not discussing not backing up

7

the affidavit.

8

conducted these interrogations to get on the stand and testify

9

truthfully as to what occurred during the course of these

10
11

We are discussing expecting the agents who

interrogations.
THE COURT:

Now, what is your good-faith basis for

12

saying that you will, through the testimony of those agents, be

13

able to establish lack of voluntariness?

14

that do that, point me to some statements that do that.

15

is the discussion I had with Mr. Wooldridge on the hypothetical

16

of the agent who somewhere says, "I know what I said in my 302,

17

but that is not what happened."

18
19
20
21
22

MS. CHURCH:

Point me to the 302s
That

Again, those 302s are prepared -- as

every agent will testify in every case, they are prepared -THE COURT:

I am asking you to show me where I can

find in those 302s that this was not voluntary.
MS. CHURCH:

I think our client went through a very

23

long outline of what happened, but this was an interrogation of

24

our client --

25

THE COURT:

I think it would be helpful to avoid going

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 62 of 169

1

around in circles.

2

MS. CHURCH:

3

THE COURT:

4

62

No.
Just a moment.

To answer the question.

Where in the 302s am I going to find this?

5

MS. CHURCH:

In the 302s you will hear the agents

6

admit that they interrogated our client over the course of many

7

different days, that they came up on one occasion at 4:00 in

8

morning, asked him to come outside of his house in the middle

9

of the night, that they repeatedly came after him over and over

10

again, and then on the last day in the last statement conducted

11

an extensive, I believe four- or five-hour interview.

12

That is just what the 302s say.

13

we expect to obtain out of the cross-examination.

14
15

THE COURT:

That is not even what

What is the basis for your expectation

that there is going to be something different from that?

16

MS. CHURCH:

Your Honor, in every case I have ever

17

tried there has been something different.

18

supplementation by agents.

There has been, "Well, I didn't

19

really mean it that way."

Otherwise, then why do we have a

20

trial?

21

jury decide based on the police reports.

22

of courtroom advocacy and cross-examination.

23

There has been a

Why don't we just put the police reports in and let the

THE COURT:

That is the essence

It certainly is, and now we are talking

24

about how we use the process of Motions to Suppress.

25

that is part of the trial.

Of course

It is putting someone on and

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 63 of 169

1

letting them be cross-examined.

2

they withdraw their affidavit, then there is not a foundation

3

for it.

4

63

But if nobody comes on because

That is where I am on this.
Saying that, "We think we can ask some questions and

5

maybe we will be successful," is not enough.

6

good-faith basis.

7

he said, but he is going to say the opposite because sometimes

8

in trials people say the opposite," is not enough to meet your

9

burden.

10

That is not a

Looking at someone and saying, "I know what

MS. CHURCH:

And I would suggest, your Honor, that

11

this case is a little different from kind of a regular case

12

where the defendant writes an affidavit that is absolutely

13

contradictory with everything that is in the 302s, and it's a

14

question of who is telling the truth.

15

affidavit is not outside the realm of possibility based on what

16

is in the 302s.

17

it's not illusory in the sense that it's out from left field.

18

There is a lot of what he says in his affidavit that is

19

consistent with the 302.

20

The defendant's

In fact, it's largely consistent.

THE COURT:

Right.

So, again

And that is why I suppose

21

Mr. Capin argued, not without force, that that affidavit may

22

not be sufficient itself.

23

But taking a broad view, I am prepared to permit this

24

case to go forward on a Motion to Suppress, if we have an

25

affidavit that the defendant will stand behind; and the way in

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 64 of 169

64

1

which I have defined "stand behind" is permit himself to be

2

subject to cross-examination in the context of the Motion to

3

Suppress with the immunity that is provided for a defendant.

4

It is not complete immunity, you are absolutely right.

5

be subject to cross-examination if he testifies at trial.

6

He can

But without involving myself in trial choices,

7

strategic choices at trial, I think it is not likely that

8

someone who will not testify under the immunity provided by a

9

Motion to Suppress will testify at trial.

Maybe it could

10

change, maybe not.

But we are talking about what you get on a

11

Motion to Suppress, that is what we are talking about right

12

now, and what you need to do to get a Motion to Suppress, and I

13

have suggested, as I have indicated, that you get it if you can

14

supply an affidavit that is supportable and is going to remain

15

supportable for purposes of examination.

16

look at this without consideration of the affidavit to decide

17

whether or not there is sufficient evidence in the record to

18

raise a question that has to be resolved in a

19

Motion to Suppress before trial.

Otherwise, I will

20

I am not sure that counsel has completed.

21

MR. STAHL:

I'm sorry.

22

THE COURT:

Is there anything further that you wanted

23

to raise?

24

MS. CHURCH:

25

THE COURT:

No.

Note my objection, your Honor.

All right.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 65 of 169

1
2

MR. STAHL:

65

Your Honor, I just have two quick points,

and then a point of clarification for your Honor again.

3

THE COURT:

Sure.

4

MR. STAHL:

I want to go back for a second.

It's the

5

Government's burden to prove that there was an exception to the

6

warrant requirement and that there were exigent circumstances.

7

We are focusing so far on the discussion of the defendant's

8

knowledge as to voluntariness and the circumstances, but the

9

defendant doesn't have knowledge to what Ms. Siegmann put in

10
11

her brief.
We now know, according to unsworn statements with

12

nothing but good faith of counsel going forward, that there was

13

some sort of indications that Jahar might have been in the

14

apartment, that Jahar was close to the apartment, that a phone

15

was pinging, that a hostage rescue team out of Quantico

16

presumably came up, a Hostage Rescue Team was authorized by the

17

Director of the FBI himself.

18

it's the Government that has the knowledge, we don't, of how

19

that came about, and what was the exigency.

We have all these things, and

20

Why wasn't a search warrant obtained?

21

gathering this information, we don't know for sure, but

22

according to the papers, again unsworn, sometime earlier that

23

morning, 6:00 in the morning, or the night before, and then

24

they had surveillance.

25

THE COURT:

They started

If I may interrupt you, you have

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 66 of 169

66

1

identified a discrete category of material that may be the

2

subject of a Motion to Suppress.

3

depend upon the testimony of the defendant to explore it.

4

is, I guess, the kind of -- it is a little much to call this a

5

Terry stop, but the Terry stop quality of the initial encounter

6

at Carriage Road.

7

mean to do that once we get to the point of what is left if we

8

do not have these affidavits.

9

MR. STAHL:

That is to say, it does not
That

That may be carved out separately, and I

So, that is one part.

And then, if we

10

look through the 302s, which is what we have, and we now have

11

from last evening provided to us some e-mails now between

12

agents working on this portion of the case and interrogating

13

these individuals and doing the searches.

14

their e-mails provided to us about timing and about different

15

issues.

16

We now have some of

So, we now have a little bit more, but we still don't

17

have anything under oath from the Government as to the

18

voluntariness of the statements either.

19

have what is the exigency and then what are the circumstances

20

of their interrogation?

21

forms.

22

very short shrift, just a couple of lines, about how, a couple

23

of lines about how the people were Mirandized, supposedly, and

24

then we go into pages and pages of other things, and then we go

25

into, "We nicely drive them home afterwards, and then we see

So, we go back to we

We have some times only on the Miranda

Then we have some general comments in 302s.

They spend

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 67 of 169

1

some more things."

2

have any information or testimony from the 302s as to the exact

3

circumstances that the Government even claims went into those

4

circumstances.

5

I mean, that's all we have.

67

So, we don't

So, that leads me to -- my question, then, is if we

6

are doing this order where I will represent, and your Honor has

7

graciously given me more time to then think about that, is if

8

the Government goes first, do we get to cross-examine those

9

witnesses as we go along, as we would normally do, limited to

10

the relevant issues -- this is not a fishing expedition for

11

trial.

12

have outlined in our brief.

13

that the Government would do the direct, you would hear that,

14

we would not cross and then the defendant --

This is going strictly to those discrete areas that we
Or was your Honor saying before

15

THE COURT:

No, no.

16

MR. STAHL:

Okay.

17

THE COURT:

If I was not clear, I thought I was, but

If I misunderstood, that's fine.

18

of course you get to cross-examine limited to the issues that

19

are in play in this case.

20

MR. STAHL:

21

That cleared it up.

22

THE COURT:

23
24
25

That are relevant, yes.

Okay.

All right.

I completely misunderstood that.
Does the Government have anything to

offer?
MS. SIEGMANN:

Your Honor, just from what we have

heard today, it sounds like Mr. Tazhayakov and Mr. Phillipos

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 68 of 169

1
2

are now withdrawing their affidavits.
THE COURT:

Well, they are not standing behind them.

3

I suspect they would not say that they are withdrawing, but I

4

view that as effectively withdrawing their affidavit, because

5

they will not permit that affidavit to be the subject of

6

cross-examination.

7

68

MS. SIEGMANN:

And, yes, last night in advance of the

8

hearing we produced Jencks materials for witnesses that we

9

thought might be testifying today and we weren't sure if they

10

were being called as Government witnesses or defense witnesses

11

so that we produced those in advance of the case.

12

stand by every statement of fact in our brief, and we will be

13

able to call witnesses and prove those to the Court.

14
15
16

THE COURT:

What does that mean?

And we do

Now you want to have

a hearing on the Motion to Suppress?
MS. SIEGMANN:

No, we would only actually want a

17

hearing if -- right now it sounds like the only person -- I

18

didn't hear definitively from Mr. Stahl whether they are going

19

to stand by the affidavit and have their client subject to

20

cross-examination.

21

would only be as to Mr. Kadyrbayev and not as to the two --

22

But if that's the case, then the hearing

THE COURT:

There are other dimensions of this, which

23

is the foundation for a Terry stop, which is established

24

through the 302s.

25

this information about the locus being a place that they were

That is, agents say that they had all of

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 69 of 169

69

1

concerned might be where Mr. Tsarnaev was then located.

2

is not something that their affidavits can deal with.

3

question then becomes do we have a hearing on that, or is the

4

Government satisfied to simply rest on the state of the

5

submissions, which I will permit to be updated with affidavits

6

saying that they are truthful?

7

MS. SIEGMANN:

That

So, the

With regards to the Terry stop, as the

8

Government indicated in its papers, we are not relying upon the

9

exigent -- anything that was said during the exigent search by

10

the defendants.

11

prove that the defendants were not unlawfully arrested at the

12

time that they were taken.

13

The issue with the Terry stop was just to

THE COURT:

So, I understand the Government to be of

14

the view that, "We are not using any of these statements.

15

consequence, we do not need this hearing."

16
17

MS. SIEGMANN:

As a

And they were subsequently Mirandized

at the Barracks before they confessed to the crimes charged.

18

THE COURT:

And you understand that all of this will

19

have to be resolved at trial, that is, independently, the

20

question of voluntariness, at trial after jeopardy has

21

attached?

22

MS. SIEGMANN:

Yes, your Honor, we understand that.

23

THE COURT:

24

So, do you want to take additional time, Mr. Stahl?

25

MR. STAHL:

All right.

Yes.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 70 of 169

1

THE COURT:

70

As I understand it, unless I hear

2

something further from Mr. Wooldridge, or Mr. Demissie, or

3

Ms. Church, that the defendants will not permit examination on

4

the affidavit?

5

MR. WOOLDRIDGE:

Just one issue I had, your Honor.

6

Just for clarification, did I hear the Government correctly

7

that they are going to submit affidavits in support of the

8

factual allegations?

9
10
11
12
13

THE COURT:

No, you did not hear them say that.

You

heard me say that I would afford the opportunity to do so.
MR. WOOLDRIDGE:

And I did hear them correct that they

stand by the facts alleged in their opposition papers?
MS. SIEGMANN:

Yes, your Honor.

As I indicated, that

14

we would call witnesses, if we were going to have a hearing, to

15

support every fact in that brief.

16
17
18

THE COURT:

I'm sorry, Mr. Demissie.

I think this is

a second round of replies.
MR. DEMISSIE:

Yes, your Honor.

I just want to

19

clarify we stand by the affidavit we submitted.

20

object to the requirement that we have to make the decision to

21

put on our client prior to the Government meeting its burden of

22

proof, and we just ask the Court to note that objection, and we

23

will obviously address the issue at trial, as your Honor

24

suggested.

25

THE COURT:

We simply

I understand that that is the case for

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1

both, and I just want to be sure that in the case of both

2

Mr. Tazhayakov and Mr. Phillipos you do not suggest that you

3

have laid a foundation for a Motion to Suppress other than

4

through the affidavit, that there is anywhere in the evidence

5

in this case that would support your Motion to Suppress, the

6

foundation for your Motion to Suppress, of involuntariness.

7
8
9

MR. DEMISSIE:

71

Your Honor, I don't want to belabor the

issue; I think my co-counsel addressed it.
But we believe that the affidavit raised sufficient

10

facts that made out a prima facie case, and the procedure the

11

Court should follow, and I understand your Honor's position, is

12

then to require the Government to meet its burden of proof,

13

allow the defendant at that point, once the Government rests,

14

to decide whether or not to submit additional evidence by way

15

of testimony or additional witnesses.

16

We believe we have met a prima facie case.

17

withdrawing the affidavit, we are standing by it, but if the

18

Court decides that the only way we can proceed is by indicating

19

at this point whether or not our client would take the stand,

20

we are not willing to make that commitment.

21

THE COURT:

22

Mr. Wooldridge, anything further?

23

MR. WOOLDRIDGE:

We are not

I understand your response.

The only thing, your Honor, I was

24

thinking, and I don't have the immunized witness's deposition

25

here with me, I would like to be able to review that and submit

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1

some of that testimony to your Honor.

2

THE COURT:

3

MR. WOOLDRIDGE:

4

Well, what I think, then --

THE COURT:

Because I have carved out this whole week

to have these hearings.

7

MR. WOOLDRIDGE:

8

THE COURT:

9

See if that would be enough for your

Honor to say I have met my burden of production.

5
6

I understand, Judge.

I am kind of surprised that the defendants

have taken the position that they take concerning this, but

10

that is their choice, or, as I say, tactic.

11

anything further that you offer in support like that --

12

MR. WOOLDRIDGE:

13

THE COURT:

14

But I will review

Thank you, your Honor.

-- to support having some sort of

evidentiary hearing on a Motion to Suppress.

15

MR. WOOLDRIDGE:

16

THE COURT:

Okay.

But I really think I want it by the end of

17

the day here.

18

you can show me what supports it.

19

MR. WOOLDRIDGE:

20

THE COURT:

21

break.

22

I mean, it is one deposition, you took it so,

Thank you, your Honor.

All right.

So, we will take another

How long do you think you need here?
MR. STAHL:

Just, if I could have till 12:00, your

24

THE COURT:

Sure.

25

MR. STAHL:

Your Honor, just so the record is

23

72

Honor?

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1

complete, I don't know your courtroom procedure.

2

other defense counsels' motions.

3

THE COURT:

4

no joinder on this.

5

MR. STAHL:

I join in the

You are standing alone on this.

All right.

73

There is

So, then I join in -- you are

6

saying there is no automatic joinder, so I am saying I join in

7

Mr. Demissie's --

8
9

THE COURT:

But to the degree that it applies, and it

does not, you are making an individual determination regarding

10

this defendant and what position you take.

11

join in that objection, unless you individually raise it.

12

MR. STAHL:

You do not get to

Well, your Honor, I am individually

13

raising that I also object that the defendant has to make a

14

commitment now to your Honor to testify and be subject to cross

15

at the end of the Government's presentation without seeing

16

whether it's necessary or not and committing to that in

17

advance.

18

and go forward, that's what we're going to do.

19

have a right to object for the appellate record that your Honor

20

is telling me I must do it that way, and there's a shifting of

21

the burden.

22

I understand that if I say we are going to do that

THE COURT:

That is noted.

I think I still

It is not quite what was

23

said as the foundation.

What was said is that there is an

24

inadequate foundation for this Motion to Suppress, having a

25

hearing on this Motion to Suppress, unless the affidavit is

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74

1

considered.

2

commitment to permit it to be examined.

3

commitment to permit it to be examined, cross-examined, then it

4

is illusory, as far as I am concerned.

5

The affidavit can only be considered if there is a

MR. STAHL:

If there is not a

I understand your Honor's ruling, and I

6

would simply note for the record that I don't believe it's

7

illusory.

8

still is admissible, and it's still a fact to be considered,

9

but it goes to the weight --

10

I think your Honor can give it less weight, but it

THE COURT:

Whenever there is a factual dispute,

11

virtually whenever -- there are modest circumstances in which

12

this changes -- I want to hear the witnesses.

13

to make a determination with respect to voluntariness.

14

to be sure that I am hearing all of the witnesses, and I want

15

to be sure that there is a foundation for someone to ask for it

16

that is not designed to advance a discovery initiative that is

17

not authorized by the Federal Rules.

I am being asked
I want

18

MR. STAHL:

I understand, your Honor.

19

THE COURT:

If you want to take over the lunch period,

20

that is fine.

21

than that.

22

I am not trying to force this issue any more

MR. STAHL:

No.

23

would take you up on that.

24

that would be good.

25

THE COURT:

That's very generous, your Honor.

I

I didn't want to push my luck, but

Well, it is no longer a matter of luck; it

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75

1

is a matter of whether or not you have got something

2

persuasive.

3

pressing beyond the fact that if we are going to have a hearing

4

I would like to have the hearing.

5
6

If it is 12:30, do you want that?

MR. STAHL:

Yes, your Honor.

I am not

If this is going to be

our lunch break, I would just ask for the full hour.

7

THE COURT:

So, we will be back here at 12:45.

8

MR. STAHL:

Thank you, your Honor.

9

THE COURT:

And those who wish to participate will be

10

here at 12:45.

11

forward in their absence.

12

If they are not, then the matter is going

THE CLERK:

All rise.

13

(The Honorable Court exited the courtroom at 11:40 p.m.)

14

(Lunch recess taken)

15
16

THE CLERK:

(The Honorable Court entered the courtroom at 12:50 p.m.)

17
18

All rise.

THE CLERK:

This Honorable Court is back in session.

You may be seated.

19

THE COURT:

So, Mr. Stahl, where are we?

20

MR. STAHL:

Yes, your Honor.

THE COURT:

So, let's talk about the -- although, I

21
22

We are prepared to

proceed.

23

guess we do not have to reach it today, the question of the

24

subpoenas.

25

MR. STAHL:

No, your Honor.

I subpoenaed the agents

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76

1

and what I thought were relevant documents to what they would

2

be testifying about, and I presumed that when we first

3

discussed this I think back in January that I would be putting

4

the agents on.

5

they were here and available, and, number two, that they had

6

the documents.

7

documents.

8

things.

9

So, I wanted to make sure that, number one,

The Government has started to provide us some

I am sure as things come up we will have other

So, I don't think it's an issue right now.
THE COURT:

All right.

So, how do you want to proceed

10

with respect to Mr. Kadyrbayev's affidavit?

11

willingness to receive the affidavit as direct testimony.

12

indicated you might want to expand on some of the issues.

13

MR. STAHL:

Yes.

I indicated a
You

I would like to proceed where the

14

Government puts on their agents.

15

going first.

16

Mr. Kadyrbayev to the end.

17

to the affidavit, just to highlight some things and to bring

18

some things out, and then, pursuant to your Honor's ruling at

19

the time, whether he needs to be crossed, and then that's it.

20

They have talked about who is

It will be Agent Walker.

THE COURT:

At cross, we will hold

I will do some direct in addition

So, let me, then, turn to the procedures.

21

I understand that there may be some further submission on

22

behalf of Mr. Tazhayakov.

23

MR. WOOLDRIDGE:

24

THE COURT:

25

Of course, your Honor.

I am not sure the people who practice

principally in the Second Circuit would understand this

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77

1

reference, but the way in which I am going to treat the

2

question of voluntariness is in the cases of those who are not

3

submitting something further, or whatever they submit is

4

insufficient, is what we call a Petrozziello determination.

5

the conclusion of all of the evidence in the case -- it arises

6

out of a case called United States v. Petrozziello, but that is

7

the treatment of co-conspirator hearsay -- a judge in the First

8

Circuit is required to make a finding, if asked, to make a

9

finding as to the admissibility of co-conspirator hearsay.

At

10

Generally it is made at the conclusion of all of the evidence,

11

but sometimes the Government wants to get that clarified

12

before.

13

In any event, here the Government has not indicated a

14

desire to have this clarified before the conclusion of all of

15

the evidence in the case, and that is when I will make the

16

determination with respect to voluntariness.

17

I have said before.

18

voluntary, I will order a mistrial, I will consider it to be on

19

the Government's back, and, as a consequence, there will be no

20

retrial, or at least as far as I am concerned there is no

21

retrial on it.

22

with respect to this.

I emphasize what

If I find that those statements are not

So, everybody understands the rules of the game
All right?

23

MR. WOOLDRIDGE:

24

THE COURT:

25

MR. DEMISSIE:

Yes, Judge.

Mr. Demissie, similarly?
Yes.

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78

1

MR. STAHL:

I always think you are pointing at me.

2

THE COURT:

No.

There is a guilty mind at work.

3
4
5
6

(Laughter)
MR. DEMISSIE:

So, I just take it what you just said

applies to my client?
THE COURT:

Yes, it does as well.

There are a couple

7

of ex parte submissions that some of the parties have made.

8

do not think I need to deal with them immediately now.

9
10

MR. DEMISSIE:
THE COURT:

I

No, your Honor.

I assume that both counsel for

11

Mr. Tazhayakov will be remaining and also Mr. Phillipos and his

12

counsel will be remaining during these examinations.

13

examination will be conducted only by Mr. Stahl.

The

All right?

14

MR. DEMISSIE:

Yes.

15

MS. SIEGMANN:

That was going to be my question.

16

MR. WOOLDRIDGE:

17

MS. SIEGMANN:

Yes, your Honor.
Your Honor, just some clarification on

18

one issue.

The exigent search and then the Terry stop.

19

circumstances were very similar for both Kadyrbayev and

20

Tazhayakov, and the question the Government would pose is, if

21

you are making a determination concerning Kadyrbayev that the

22

Government would, at least up to the point of the Miranda,

23

request a decision be made as to both, up to that point.

24

THE COURT:

25

MS. SIEGMANN:

The

Only if they both participate.
And if the Government asks for that to

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79

1

be done, just for that portion of it, we wouldn't be calling

2

witnesses on the Miranda issue with regards to Tazhayakov, just

3

at the initial justification for the Terry stop, and that would

4

only allow Mr. Tazhayakov to cross-examination on that issue.

5

Would that be what the judge would allow?

6
7

THE COURT:

Yes, and so would I.

and I.

8
9

Both the judge

(Laughter)
MS. SIEGMANN:

No.

What you would allow, your Honor.

10

THE COURT:

Right.

11

MS. SIEGMANN:

12

So, I think that it makes sense to do it that way,

One second.

13

because since we are presenting the same testimony that we

14

would, because the witness, Special Agent John Walker, will be

15

testifying as to the circumstances as to both defendants at the

16

scene on that day in question, but we wouldn't be asking the

17

Court for an advanced ruling on the Miranda waiver.

18

THE COURT:

19

MR. WOOLDRIDGE:

20

THE COURT:

21
22

Does that work for you, Mr. Wooldridge?
That's fine, your Honor.

All right.

So, that is how we will

proceed, then.
MR. CAPIN:

One further clarification.

Will the Court

23

be ruling, then, with regard to Kadyrbayev, who is fulsomely

24

participating, on the question of voluntariness of his

25

confession at this juncture?

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80

1

THE COURT:

Yes.

2

MR. CAPIN:

Thank you.

3

THE COURT:

Now, he has a right to raise it again at

5

MR. CAPIN:

Understood.

6

THE COURT:

And I will think about it at trial, and it

4

trial.

7

may be that the testimony at trial is different than it is

8

here.

9

the foundational requirements, unlike, in my view, the other

But he has asked for a Motion to Suppress.

10

two defendants.

11

determination.

12

trial, as are all three defendants at that point.

13

He has met

So, he is entitled to the Motion to Suppress
He is also entitled to the determination at

So, what I understand is I have before me the

14

affidavit of Mr. Kadyrbayev, and the Government can call its

15

first witness.

16
17

MS. SIEGMANN:

The Government calls Special Agent John

Walker to the witness stand.

18

SPECIAL AGENT JOHN WALKER, DULY SWORN BY THE CLERK

19

THE CLERK:

20

Please state your full name, spelling your

last.

21

THE WITNESS:

22

MR. STAHL:

My name is John Walker, W-A-L-K-E-R.

Excuse me, your Honor.

I just want to

23

make sure.

I did talk to the Government before we started

24

about sequestration of witnesses.

25

FBI agents are in the room that will be testifying.

I want to make sure no other

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 81 of 169

81

1

MR. CAPIN:

Agent Quinn.

2

THE COURT:

I will look to the parties to police this,

3

but it is any person -- that there has been a request for

4

sequestration, I guess, and any person whose reasonable belief

5

is they are going to be a witness in the case should be out of

6

the courtroom, except, of course, obviously, the defendant.

7

DIRECT EXAMINATION

8

BY MS. SIEGMANN:

9

Q.

Sir, could you tell us how you're employed.

10

A.

I'm a Special Agent of the Federal Bureau of

11

Investigation.

12

Q.

13

Investigation?

14

A.

15

23 years.

16

Q.

What is your current assignment?

17

A.

I am assigned to a Criminal Investigative Squad of the

18

Boston Division of the FBI, but for the past 13 months I've

19

been effectively seconded to the Boston Marathon Bombings Task

20

Force.

21

Q.

Sir, can you tell us what the JTTF is?

22

A.

The JTTF, the Joint Terrorism Task Force, one of which is

23

resident here in Boston, is one of 56 or more Terrorism Task

24

Forces that the FBI established with multi-agency participation

25

in order to investigate most all, or perhaps all, of the

How long have you been employed by the Federal Bureau of

In August I will have been employed in that capacity for

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1

terrorism complaints, cases that arise in the course of our

2

work.

3

Q.

4

years' experience as an FBI Agent.

5

what positions you've held over that 23 years as an FBI Agent.

6

A.

7

Oregon where I primarily investigated violations of -- violent

8

crimes violations and domestic terrorism violations.

You indicated a moment ago that you have close to 23
Could you briefly describe

For my first six years I was assigned to a small office in

9

Thereafter, for 2 1/2 years I investigated public

10

corruption matters arising from the 1996 Presidential Election

11

cycle.

12

Investigator Division, the Violent Crimes and Major Offenders

13

Section at FBI headquarters.

14

promoted to a field supervisory position here in Boston, where

15

I supervised a squad of the Boston Joint Terrorism Task Force.

16

I was promoted to a position in the Criminal

A couple of years later I was

About three years later I started effectively six

17

years of overseas assignments for the FBI, the last portion of

18

which I was resident in Western Europe, and returned to Boston

19

about three years ago and, as I mentioned, have been employed

20

for a little more than a year with regard to the Marathon

21

investigation generally.

22

Q.

23

management or in crisis management for the FBI?

24

A.

25

portfolio, that of my squad, was both domestic terrorism and

Have you ever served in any capacity as an emergency

I have.

When I was on the JTTF, I had responsibility.

My

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 83 of 169

1

counterterrorism preparedness.

2

Division's Crisis Management Coordinator.

3

of the critical incident response elements in the Division,

4

Special Agent Bomb Technicians, Hazardous Materials Response

5

Team, Evidence Response Team and so forth.

6

83

In that role I was the
I supervised various

I also in that role supervised our counterterrorism

7

preparedness for large-scale events that might be susceptible

8

to acts of terrorism, including the Boston Marathons that

9

occurred during my supervision, the 2004 Democratic National

10

Convention.

11

building up to that.

12

Q.

13

any other cases that involved attacks that resulted in

14

fatalities?

15

A.

Yes.

16

Q.

And could you just briefly describe those instances.

17

A.

From the explosion of the Murrah Building in Oklahoma

18

City, to notably the first and second World Trade Center

19

bombings, every agent in the FBI, including myself, was working

20

leads in that regard.

21

I spent the first days in our Strategic Information and

22

Operations Center, because I had a responsibility criminally

23

for the Crime Aboard Aircraft Program for the FBI.

24

to Boston I began a national security profile in terrorism.

25

I supervised the FBI's about a two-year effort
So, that would answer it.

So, before the Boston Marathon bombing had you worked on

When 9/11 occurred I was in Washington.

When I came

Most of my work overseas for just shy of six years,

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 84 of 169

84

1

the vast bulk of it was also in the national security arena,

2

although not all counterterrorism, but the majority of it was.

3

Q.

4

interviews would you estimate you have conducted?

5

A.

Well over a thousand.

6

Q.

Now, directing your attention to the week of the Marathon

7

bombing, I would like to go through and discuss what knowledge

8

and what information the FBI knew at the time that they

9

encountered the defendants.

And, sir, over your 23 years of experience, how many

10

So, going back at 2:49 p.m. on April 15th, 2013, what

11

happened?

12

A.

13

Boylston Street in Boston, killing three people and seriously

14

injuring, maiming approximately 260.

15

Q.

How soon after the bombings did the investigation begin?

16

A.

Immediately.

17

Q.

Were command posts set up?

18

A.

A command post was established for a little less than a

19

day.

20

was set up at the Weston Hotel in Boston.

21

the FBI set up its Joint Operations Center in Boston within

22

moments of the explosions, and various other command posts were

23

established throughout the week as developments warranted.

24

Q.

What were the first investigative steps taken that day?

25

A.

After establishment of the unified command and, naturally,

Two explosive devices detonated in close succession on

A unified command was set up, and an initial command post
At the same time,

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85

1

after life-saving efforts and without interfering with

2

life-saving efforts, a perimeter was established in the

3

Back Bay of Boston so that evidence could be secured.

4

Response Teams, Special Agent Bomb Technicians, all manner of

5

investigators at I think all three levels of Government.

6

three levels of Government began working in earnest in the Back

7

Bay.

8

case of this kind.

9

also many -- all of our JTTF partners to each of the hospitals

Evidence

All

We conducted immediately a logical investigation in a
We sent out investigators from the FBI but

10

where victims were reported as having been transported.

11

began interviews of those victims, collecting physical evidence

12

from those victims, to include their clothing, any remnants,

13

potential remnants of explosive devices from their persons.

14

We

We brought in and began to establish a unified

15

evidence response effort and team involving different agencies.

16

We obtained various telephone data.

17

throughout the week, yes.

18

Q.

19

collect as much evidence as possible?

20

A.

Yes.

21

Q.

Who took the lead in the investigation, what agency?

22

A.

Ultimately, the FBI assumed, with the acquiescence or the

23

concurrence of that unified command, to assume a lead role for

24

the investigation.

25

Q.

On and on and on

So, it's fair to say there was a lot of work done to

But at all times this was a JTTF investigation, correct?

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 86 of 169

1

A.

Yes.

2

Q.

Law enforcement agencies were sharing information?

3

A.

Yes.

4

Q.

And after assisting the wounded, the next immediate

5

concern was to prevent further loss of life; is that your

6

understanding?

7

A.

Precisely correct, yes.

8

Q.

Is it fair to say that the FBI was concerned about other

9

attack plans?

86

10

A.

Yes.

11

Q.

Can you explain to the Court what the concerns were at

12

that time?

13

A.

14

of this nature in and of itself was a sophisticated crime,

15

sophisticated act of terrorism, if only because in a highly

16

populated but also a highly secure area of a city like this, in

17

a special event that had gone on for, obviously, decades, that

18

persons were able to infiltrate the security setup in the area,

19

they were able to explode, detonate devices with large-scale

20

casualties.

21

Immediately we had apprehension that a coordinated attack

They were able to effectively flee the scene.

We did not, for instance, see -- as is often or can be

22

the case with regard to suicide bombings, we did not, for

23

instance, see decapitated heads on the scene.

24

that led us to believe that the bomber had escaped the area.

25

And as the information was developed early on Monday, and

There were clues

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87

1

certainly was bolstered by the evidence collection on Tuesday

2

at the scene, we developed a much closer sense of the types of

3

devices and the level of sophistication, and, therefore, that

4

it was likely not one person but likely two or more people or

5

some broader conspiracy.

6

Q.

7

analysis by Bomb Technicians about the bombs, the improvised

8

explosive devices.

9

analysis -- briefly, what did the preliminary analysis reveal

You mentioned a moment ago that there was some preliminary

Could you tell us what the preliminary

10

as to how this bomb was constructed?

11

A.

12

issue its final exhaustive analysis and report of the devices

13

themselves and how they were constructed and detonated.

I will, with the caveat that the FBI has not but will soon

14

But with regard to our working knowledge at the time,

15

we had an understanding, based on evidence that we gathered at

16

least by Tuesday, Tuesday morning, that there were two devices

17

likely contained -- or the conveyance devices were likely

18

backpacks; that the devices themselves were likely constructed

19

of pressure cookers designed to delay the expansion of the

20

gases sufficiently that the pressure would build up so much

21

that it would multiply by an order of magnitude the impact of

22

the explosions.

23

We gathered different components of those devices, to

24

include shrapnel, generically, designed to kill and maim; and

25

so, we had a fairly good understanding, including we had a

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1

working hypothesis with regard to how the devices were

2

detonated.

3

Q.

And they were detonated remotely?

4

A.

They were.

5

Q.

So, how much of the FBI's resources were dedicated to this

6

investigation during the week of April 15th, 2013?

7

A.

8

throughout the World that week, throughout the entirety of the

9

week.

There was no greater obligation of the FBI broadly

It was all hands on deck for the Boston Division.

We

10

were supplemented very early on and successively by specialized

11

teams of Bomb Techs and people with different skill sets and

12

evidence response, crisis management, from various divisions, a

13

huge augmentation from the headquarters, and the Quantico

14

Critical Incident Response Group Teams.

15

increasingly as the week went on and was ramping up on

16

Thursday, we began simply to receive more investigators, line

17

investigators, from New York and New Haven and Albany and

18

places to assist us and to keep us pressing forward.

19

Q.

20

what happened?

21

A.

22

18th, the Special Agent in Charge of then -- the SAC of the

23

Boston Division released photographs and sought the assistance

24

of the public in identifying two men whom we believed were

25

responsible for the bombings.

But also from --

At approximately 5:00 p.m. on Thursday, April 18, 2013,

At approximately about 5:15 that day, on Thursday, the

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1

Q.

And by 6:50 a.m. Friday morning, April 19th, had the

2

suspected bombers in those photographs been identified?

3

A.

4

of one of those persons, then deceased, and the FBI publicized

5

the name of the second person in the photograph, colloquially

6

referred to as "White Hat" or "Bomber Number Two."

7

we had.

8

Q.

9

individuals in those photographs?

By 6:50 a.m. the FBI was certainly aware of the identity

But, yes,

And how was it that the FBI was able to identify the

10

A.

11

comparison of his known fingerprints.

12

decedent was transmitted to our facility in West Virginia, the

13

repository for fingerprints, and within moments we had a

14

positive identification on that person.

15

Q.

16

referring to was Tamerlan Tsarnaev, correct?

17

A.

It is.

18

Q.

How was that person killed?

19

A.

Perhaps another caveat.

20

-- there may be some pending determination of that, but he came

21

into --

22
23

We identified the first individual based on a positive
A fingerprint from the

Well, how was that person -- the decedent you are

MR. STAHL:

I would not want to weigh in on a

I am going to object.

I don't know what

the relevance is of how Tamerlan was killed.

24

THE COURT:

I sustain the objection.

25

MR. STAHL:

The fact is he is deceased, and we can

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1

move on.

2
3

90

THE COURT:

I do not see it is relevant.

If you are

trying to bring out there was a fire fight, you can do that.

4

MS. SIEGMANN:

Yes, your Honor.

Then, I'll ask.

5

BY MS. SIEGMANN:

6

Q.

7

fight in Watertown?

8

A.

Yes.

9

Q.

And who was believed to be involved in that fire fight?

10

A.

We believe that Tamerlan Tsarnaev and his younger brother,

11

Dzhokhar Tsarnaev, engaged in a violent confrontation with law

12

enforcement, wherein they were shooting in the direction of

13

police officers and lobbing improvised explosive devices at

14

those police officers.

15

Q.

16

conclusion of that fight, was actually deceased, correct?

17

A.

Yes.

18

Q.

And was law enforcement able to capture the younger

19

brother, Dzhokhar Tsarnaev, during that fire fight?

20

A.

No.

21

Q.

So, by 6:50 a.m., after this fire fight on April 19th, did

22

the FBI believe that the Tsarnaevs had committed any other

23

violent crime?

24

A.

Yes.

25

Q.

What was that, Special Agent?

Earlier that morning, on April 19th, had there been a fire

And during that fire fight, Tamerlan Tsarnaev, at the

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1

A.

We believed at the time that they were responsible for the

2

murder of a police officer in Cambridge at about 10:31 on the

3

evening of Thursday, April 18.

4

carjacking, a violent crime, when they carjacked a getaway car,

5

if you will.

6

involved and were involved in a robbery at the time in a

7

convenience store, but we then thereafter believed they were

8

involved in this violent confrontation in Watertown.

9

Q.

We believe they committed a

We believed at that time that they may have been

How big of a threat did the FBI believe Dzhokhar Tsarnaev

10

was on April 19th, 2013?

11

A.

12

enforcement seeking his apprehension, sufficiently so that our

13

Government leaders considered it prudent to effectively shut

14

down a major metropolitan area for 12 hours or more.

15

Q.

16

law enforcement what to do if he was spotted?

17

A.

18

including myself and my FBI colleagues, even with regard to how

19

to conduct leads during that day, that we would, because of the

20

perceived level of threat, even with -- we talked to many,

21

many, hundreds of people during that week, and we began that

22

morning to go out and talk to every conceivable person that we

23

even thought knew Dzhokhar Tsarnaev.

24

do things in a manner that we don't normally do, for instance,

25

telephoning ahead before knocking on a door, if you will,

An enormous threat to the general public and to law

As a result, were there any special instructions issued to

There were special instructions given to law enforcement,

But we were instructed to

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1

because we did not know at the time -- we had within hours

2

before identified persons we believed responsible for this

3

bombing and other violent crimes.

4

And so, I don't know that I recall specific

5

instruction with regard to what to do if we come upon the

6

fugitive, if you will, but I don't think we needed to be told

7

that.

8

Q.

9

who the individuals in the photographs were, Tamerlan and

I would have exercised extraordinary caution.
Well, after there was public -- the media was reporting

10

Dzhokhar Tsarnaev, did the FBI believe that now that's the only

11

people that were involved in this bombing?

12

A.

13

likely more people involved, that there were possible cells.

14

Our enormous and abiding focus was to ensure that we did not

15

see a third bomb go off, if you will.

16

Q.

17

into finding Dzhokhar Tsarnaev?

18

A.

19

that there were thousands here in Massachusetts, and the leads

20

likely spun around the World at that time, literally.

21

Legal Attaché Officers of the FBI in different places I know

22

were engaged immediately.

23

greater moment during that year and in recent term of the FBI.

24

It was of enormous significance of national consequence.

25

Q.

No, to the contrary.

We believed that there were very

So, how many resources were dedicated on April 19th, 2013

I have come to learn over the course of the last 13 months

The

Again, I know of no -- nothing of

Now, by the time the Tsarnaevs were publicly identified,

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1

were any manhunts already underway?

2

A.

Yes.

3

Q.

And where was that?

4

A.

There was a massive manhunt that was underway in

5

Watertown, where a huge swath of a residential neighborhood was

6

effectively cordoned off, and tactical teams were going house

7

to house to effect his arrest.

8

Q.

9

Dzhokhar Tsarnaev and determining whether there were any other

So, is it fair to say that on April 19th, 2013, finding

10

bombs, bombers, or conspirators, or other attack plans was an

11

urgent public safety concern?

12

A.

Without question.

13

Q.

Special Agent, where were you on April 19th, 2013?

14

A.

In the morning I was in Boston, and at or about 9:00 I was

15

dispatched to New Bedford.

16

Massachusetts, for a related investigation.

17

Q.

So, you said you actually were sent to North Dartmouth?

18

A.

Yes.

19

Q.

Where, specifically?

20

A.

I went to the Barracks of the Massachusetts State Police

21

in North Dartmouth, Massachusetts.

22

Q.

And what was the purpose that you were sent there?

23

A.

I was to speak with a complainant who had said that he had

24

gone to school at one point with the fugitive, Dzhokhar

25

Tsarnaev, and it was one of hundreds of leads to, as I

Actually, North Dartmouth,

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1

described earlier, go out and develop lead information that

2

could lead us to effecting the arrest.

3

Q.

4

Dzhokhar Tsarnaev went to school?

5

A.

6

learned that, in fact, he was matriculated at the University of

7

Massachusetts at Dartmouth, and as the morning went on it

8

became clear that, in fact, he wasn't simply a former student

9

or a sometimes student, but that he was a student there, and

What did you determine that morning as to where

When I got down into the South Coast, if you will, I

10

that the campus itself might be a locus for a search.

11

Q.

12

day?

13

A.

I did.

14

Q.

And when you arrived at UMass Dartmouth, what was going on

15

there?

16

A.

17

evacuation.

18

safety, to shut down the University.

19

Q.

20

Dartmouth, were you provided any other information from the

21

University about Tsarnaev on that day, April 19th?

22

A.

I was.

23

Q.

Can you describe what you learned from UMass Dartmouth

24

from the administrators or the Police Department there?

25

A.

So, did you actually eventually go to UMass Dartmouth that

The campus was nearing completion of a total campus
The University had decided, for student and public

In addition to being a student at the University, at UMass

Sure.

I learned that Tsarnaev was a resident on campus in

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1

a dormitory called "Pine Dale," and that, in fact, he was last

2

thought to have gained access to that particular dormitory as

3

late as 4:02 p.m. on Thursday, April 18th.

4

I learned later, but not too much later, we received a

5

report on campus from the campus technology infrastructure that

6

at 6:19 a.m. on the morning of Friday, April 19, that Tsarnaev

7

had logged onto the system on campus.

8

whether that logon was remote or was -- would suggest that he

9

was physically present on campus, I received a second report

While I was determining

10

from campus authorities that he logged on and was thought to be

11

physically present on campus at 6:21 a.m. that Friday.

12

Q.

13

information about telephones subscribed to Tsarnaev?

14

A.

15

subscribed to four telephones with AT&T, and that the address

16

that he provided and the address to which his telephone bills

17

were sent was 69 Carriage Drive, New Bedford, Massachusetts.

On the morning of April 19th, had the FBI received any

We had.

We knew that Tsarnaev, Dzhokhar Tsarnaev,

18

One of those telephones was significant to us

19

immediately, because the telephone showed enormous and

20

continuing and temporally significant connectivity with the

21

late Tamerlan Tsarnaev, including around the time of the

22

bombings.

23

Almost as importantly for my work there that day, a

24

second of the telephones again subscribed by Tsarnaev happened

25

to show connectivity with Dzhokhar Tsarnaev a few hours before

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1

the bombings on that Monday, April 15th.

The other two phones

2

showed little, if any, recent connectivity to either of the

3

Tsarnaev brothers.

4

Q.

5

that telephones, mobile phones, were used during the execution

6

of the bombing attack?

7

A.

Yes.

8

Q.

So, based upon that information, this telephone

9

information that you had received, subscriber information, what

Special Agent, was there a belief at the FBI at that time

10

did the FBI do next?

11

A.

12

regard to phones, because, as I have mentioned, we suspected

13

that phones were used in the general commission of the act of

14

terrorism on the Monday.

15

potentially exploiting intelligence from the phones to locate

16

the fugitive Tsarnaev.

Well, we were naturally all week long very concerned with

We were also interested in

17

I was told, and it caused me to that morning leave the

18

Barracks in North Dartmouth and proceed with all haste and with

19

blue lights flashing over to the campus, because I received a

20

call from the FBI Command Post in Boston that about 20 minutes

21

earlier -- and the time I received it I thought about 10:40

22

a.m. -- but about 20 minutes earlier that the second phone in

23

question that I just mentioned had transmitted a message, and

24

the report that I received was it transmitted a message to

25

Russia, and that message had bounced off a tower located about

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1

97

a mile from the campus at UMass Dartmouth.

2

So, I believed at the time that there was a stronger

3

possibility that Tsarnaev may have actually eluded capture in

4

Watertown and might be transmitting communications from down in

5

the New Bedford/North Dartmouth area.

6

Q.

7

9049?

8

A.

Yes.

9

Q.

And did you subsequently learn that that phone was used by

Now, talking about this phone, were the last four digits

10

one of the defendants?

11

A.

I did.

12

Q.

And which defendant was that?

13

A.

Mr. Tazhayakov.

14

Q.

And a moment ago you said approximately shortly after

15

10:00 a.m. that one of the phones had sent a text message or

16

had some activity with Russia?

17

A.

Yes.

18

Q.

How far was that tower that it bounced off from the

19

defendants' apartment?

20

A.

21

because I mapped it out after the fact -- but it's

22

approximately 900 meters.

23

Q.

24
25

From the defendants' apartment it was -- and I know this

Now, what, if any, belief -- sorry.

Strike that.

During the afternoon of April 19th, 2013, was the FBI
able to determine the location of any of Tsarnaev's phones,

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1

Dzhokhar Tsarnaev's phones?

2

A.

Yes.

3

Q.

And can you tell us what was learned that afternoon about

4

where that phone was located?

5

A.

6

was physically present within, because we could not see it on

7

the outside, but within 69 Carriage Drive in New Bedford.

8

a two-story, four-apartment building amidst a larger complex of

9

similarly constructed buildings.

We learned that the phone ending or having the suffix 9049

It's

10

Q.

So, based on that information, the FBI believed that one

11

of Tsarnaev's phones was located in 69 Carriage Drive; is that

12

what you said?

13

A.

Yes.

14

Q.

And did the FBI research that apartment, that address?

15

A.

The FBI separately, including down in the South Coast, and

16

I was witness to some of this, separately began developing

17

intelligence with regard to the persons that we believed to be

18

resident within an apartment at 69 Carriage, specifically

19

within 69A Carriage, a first-floor apartment.

20

Q.

21

69A Carriage Drive apartment?

22

A.

23

Mr. Kadyrbayev, a Dias Kadyrbayev and someone named Azamat, was

24

a resident there, that they were Kazakhstan nationals, and that

25

was our working knowledge at the time.

And who did the FBI determine were the residents of the

We knew at the time, including from Mr. Phillipos, that

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1

Q.

And during the course of that afternoon, what, if

2

anything, did you learn about the defendants and their

3

relationship to Dzhokhar Tsarnaev?

4

A.

5

friends or associates of Dzhokhar Tsarnaev.

6

their friends that 69A Carriage was a frequent -- that Dzhokhar

7

Tsarnaev frequently visited that apartment, and that people

8

would see them coming back and forth between the school to that

9

apartment.

We learned from their friends that they were very close
We learned from

10

Q.

What did the Joint Terrorism Task Force learn that day

11

about the immigration status of Dias Kadyrbayev?

12

A.

13

Mr. Kadyrbayev had suffered revocation of his Student Visa.

14

His F1 Visa had been revoked, and, therefore, we knew that he

15

was unlawfully present within the United States.

16

overstay following Visa revocation.

17

Q.

18

the JTTF?

19

A.

20

In particular, we received at about 9:00 in the morning, we

21

received intelligence from our U.S. Department of State that

22

had been doing some logical Internet search, and they

23

identified him.

24

he was a close associate of Dzhokhar Tsarnaev.

25

further that they found suspicious the fact that a photograph

We knew in the mid-afternoon of Friday, April 19th that

He was an

Were any Internet searches done on April 19th by anyone on

Many, many, many, including with regard to Mr. Kadyrbayev.

They provided us information suggesting that
They indicated

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1

had been somewhere on the Internet showing Dzhokhar Tsarnaev

2

and Dias Kadyrbayev, but that photograph had been removed hours

3

later.

4

So, with that information, an immediate lead was set,

5

bearing officer-safety caution statements, and to locate and

6

interview Kadyrbayev, because he may be at the two addresses

7

given.

8

second one was in Carriage Drive in New Bedford.

9

Q.

One happened to be coincidently in Watertown, but the

So, did the FBI have any other information connecting

10

Dzhokhar Tsarnaev to 69 Carriage Drive?

11

A.

We did.

12

Q.

Can you please describe that to the Court.

13

A.

We received information from the Massachusetts State

14

Police and its Fusion Center that on April 17 and April 18

15

three Skype calls were made between Dzhokhar Tsarnaev and

16

Tamerlan Tsarnaev, and that each of the three Skype

17

communications was made from an Internet protocol address, an

18

IP address, resolving to Dias Kadyrbayev at 69A Carriage Drive

19

in New Bedford, Massachusetts.

20

Q.

21

belief as to where Mr. Tsarnaev was on April 18th?

22

A.

23

Special Agent Walker, thought there to be a high probability

24

that the fugitive was located within the apartment bearing the

25

address 69A Carriage Drive in New Bedford.

And based upon that information, did you or the FBI have a

Yes.

As of the afternoon of April 18, the FBI, the JTTF,

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1

Q.

Did Tsarnaev also receive mail at 69A Carriage Drive?

2

A.

He received his AT&T bill there.

3

Q.

So, based upon all this information, what did the FBI do?

4

A.

The FBI, as the information developed from the early part

5

of the afternoon, decided it prudent to establish some type of

6

a perimeter around the apartment, lest the fugitive, as we

7

increasingly suspected was in the apartment, lest he flee, and

8

we did that -- as the information hardened over the course of

9

the afternoon, we hardened up the perimeter around the

10

apartment.

11

That perimeter was almost exclusively the

12

Massachusetts State Police, but we were working -- I was

13

working in the unified command there at the -- we set up a

14

unified command post at the library of UMass Dartmouth, and I

15

was communicating and spent most of my day together, for

16

instance, with the State Police Major, having geographic

17

responsibility for that area, with the State Police Major

18

having tactical responsibility for their tactical assets, and

19

so we agreed that it would be prudent to set up the perimeter,

20

and we did.

21

Q.

22

to execute a search of that apartment?

23

A.

Yes.

24

Q.

And what was the reason that there was a search executed,

25

a decision to search that apartment made?

And later that day was there a decision made as to whether

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1

A.

Because we thought it highly probable that the fugitive,

2

who had demonstrated enormous proclivity toward violent

3

confrontation, was physically present in the apartment, that we

4

believed, because of surveillance early in the afternoon, that

5

he was probably still in the apartment, including with regard

6

to the electronic emissions of the telephone that he subscribed

7

to, and we were concerned as an agency, as a Task Force, as

8

individuals there, that the more time that he had within a

9

close space unbeknownst to -- hiding out there, that there was

10

an increased threat of violence to the neighbors, to law

11

enforcement.

12

Q.

13

building that only had just one apartment, or were there

14

numerous apartments within this complex?

15

A.

16

four-unit, as I mentioned, two on the bottom level and two up

17

top, but otherwise across the street are single-family homes.

18

It's sort of a busy, close-in neighborhood there.

19

Q.

So, it's a heavily populated residential area?

20

A.

Yes, yes, yes.

21

Q.

So, is it fair to say that there was a decision made to do

22

an exigent warrantless search that day of the apartment?

23

A.

Yes.

24

Q.

Who made that decision at the FBI?

25

A.

The Director of the FBI.

When you say "neighbors," was this a small apartment

The complex itself was large.

The building itself is a

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1

Q.

And that decision was made so you could find a person who

2

was believed to be armed and dangerous and had attacked the

3

Boston Marathon, bombing and committed violence throughout the

4

State; is that right?

5

A.

6

knew what the facts were, and those were the facts as of the

7

time that decision was made.

8

inference.

9

Q.

That is my clear and direct inference.

I obviously -- I

So, yes, that's my clear

When the FBI Director made the decision to search the

10

Carriage Drive apartment, where were you?

11

A.

I was, again, at the library of UMass Dartmouth.

12

Q.

Had you had any contact with the FBI's Hostage Rescue Team

13

at that point?

14

A.

I had.

15

Q.

And what is the FBI's Hostage Rescue Team?

16

A.

The Hostage Rescue Team, or HRT, is a large, full-time,

17

highly professional tactical force that the FBI deploys when

18

confronting its most significant criminal or terrorist threats.

19

I say this at the risk of seeming to flatter the Agency.

20

undoubtedly the World's finest Civilian Tactical Force.

21

includes members of the World's finest military tactical

22

forces, and it has been employed in very, very high-level

23

investigations over its 30-year history.

24

Q.

Did they have any involvement in the search?

25

A.

They executed -- yes.

It is
It

They were deployed to execute the

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1

search of the apartment for Tsarnaev, yes.

2

Q.

3

Tsarnaev?

4

A.

Ultimately, yes.

5

Q.

What role did you play in this search?

6

A.

I didn't play any role in the search itself.

7

Q.

Were you in the vicinity of the apartment when the search

8

was conducted?

9

A.

I was.

10

Q.

And what role were you playing by being in the area?

11

A.

I was there in entirely an investigative, in contrast to a

12

tactical, capacity with the FBI.

13

where HRT -- where we briefed, and they briefed with a few

14

local SWAT Teams that they integrated into their team in order

15

to take perimeter duty.

16

thought that I would likely need to come in contact with

17

Tsarnaev for investigative purposes as soon as he was safely

18

arrested and had come into FBI custody.

19

Q.

20

investigative agent capacity at the scene?

21

A.

Exclusively, yes.

22

Q.

And how many other investigative agents were there present

23

at 69 Carriage Drive that day?

24

A.

25

only, sole investigative body there at the scene.

So, they went into the apartment to find Dzhokhar

I deployed from the library

But I deployed from there with the

So, is it fair to say that you were acting in an

Because of the suddenness of our deployment, I was the
It was

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1

otherwise a tactical element of HRT with -- again, they

2

involved some other local tactical teams.

3

Q.

When did you arrive at 69 Carriage Drive that day?

4

A.

I arrived just behind HRT.

5

together.

6

with the two Majors from the State Police I just mentioned, as

7

well as a ranking officer from the Rhode Island State Police.

8

We staged about a block from the apartment, a block down on

9

Carriage Drive.

We effectively rolled up

I was in a vehicle driven -- a State Police vehicle

10

Q.

What happened after you and HRT had arrived at the scene?

11

A.

The HRT pulled up effectively in front of the apartment on

12

Carriage Drive.

13

perimeter around the building in a good distance, in some

14

instances, behind and to the side of the building, and then HRT

15

called out using a megaphone.

16

the building.

17

and told him to exit the building.

18

Q.

And what happened next?

19

A.

Dzhokhar Tsarnaev did not exit the building.

They deployed other SWAT Teams to establish a

They called out the occupants of

They effectively called out Dzhokhar Tsarnaev

20

Dzhokhar Tsarnaev was, obviously, not in the building.

21

Three persons who were in the building did exit the building at

22

the instruction of HRT.

23

Q.

24

the time that Dzhokhar Tsarnaev wasn't in the building, because

25

you believed he was?

And, obviously, Special Agent Walker, you didn't know at

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106

1

A.

We firmly believed -- I firmly believed, and I know my

2

Agency did, yes.

3

Q.

4

apartment?

5

A.

I was a block away.

6

Q.

Yes.

7

A.

First, I was sitting in the same police vehicle, and as

8

the callout procedure was concluding, I went to the back of the

9

police vehicle and donned my ballistic vest and my FBI raid

Where were you standing when the people came out of the

Where was I standing?

10

jacket for purposes of identification and awaited contact from

11

those on scene that it was appropriate for me to approach.

12

Q.

13

apartment?

14

A.

15

They were instructed to -- they followed the commands of the

16

HRT in ensuring that they did not possess any weapons, to

17

include explosives, and they were restrained by Hostage Rescue

18

Team members with plastic flex cuffs, and then they were placed

19

into three different unmarked vehicles.

20

leased vehicles; I simply don't know.

21

them as being FBI vehicles with radio packages and so forth.

22

And those cars were situated on Carriage Drive.

23

Q.

24

and they are restrained, did the FBI believe that these

25

individuals, the defendants in question, were involved in

So, what happened after the people came out of the

They were instructed to come out with their hands up.

They may have been
But I didn't recognize

At that point, when they were pulled out of the apartment

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1

either the bombing or concealing Tsarnaev?

2

A.

3

immediate focus was to determine who was in the apartment,

4

because at this point the apartment hadn't been cleared by FBI.

5

We had simply called out.

6

that was effected by a dynamic force into the apartment.

7

would have been foolhardy for obvious reasons.

8

did a relatively -- for HRT what would have been a relatively

9

routine, but the safest exercise, calling out the residents so

I thought it highly possible that, yes, in fact, but my

This was not a warrantless entry
That

So, instead, we

10

that we had full command as they exited the premises.

11

Q.

12

then restrained and put into unmarked vehicles?

13

A.

14

with the three residents, three occupants of the apartment, and

15

my colleagues in the HRT and my Special Agent Bomb Tech

16

colleagues, the SABTs, there were two of them that were

17

dispatched with HRT including because -- insofar as there may

18

be explosives in the apartment, and they began the work of

19

safely entering the apartment, determining whether the fugitive

20

was there, and then ensuring that the apartment was secured

21

from other hazards other than a person, namely explosives or

22

components thereof.

23

Q.

24

the apartment at that time to see if there were any bombs or

25

explosives in it?

So, what happens after the occupants of the apartment are

I was called forward, if you will, and I began to speak

So, was there a preliminary or cursory inspection done of

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1

A.

No, I don't believe that it was done immediately, and I

2

don't think it would have been safe.

3

questioning intermittently and briefly and quickly and with

4

enormous focus the residents who had come out of the apartment,

5

namely, where was Dzhokhar Tsarnaev, was he in the apartment

6

and, perhaps importantly, was there any thing, person within

7

the apartment that might pose a threat to my colleagues who

8

were preparing to enter the apartment.

9

Q.

So, I immediately began

At this point, when you are questioning the occupants, how

10

quickly were you able to identify who the occupants of the

11

apartment were?

12

A.

Immediately upon my first encounter with each of them.

13

Q.

And at this point do you see two of the occupants that you

14

spoke to that day in the courtroom?

15

A.

I see -- yes, I see both of them.

16

Q.

Can you name them for the Court?

17

A.

Azamat Tazhayakov and Dias Kadyrbayev.

18

Q.

And at that time on April 19th, when you are speaking to

19

them in the unmarked vehicles, did you have any belief as to

20

what threat was posed by them?

21

A.

22

possessed information that might allow a quick resolution of

23

our strong suspicion, strong belief that a fugitive potentially

24

bearing arms and IEDs was inside the apartment.

25

came upon three people that I had never laid eyes on before,

Yes.

As I mentioned, I had both concern that they

Separately, I

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1

and I naturally had heightened suspicion that they, having been

2

described as so close to a terrorist, an accused terrorist,

3

suspected terrorist, that suspected terrorist having been in

4

that area 24 hours earlier, and that terrorist, that accused

5

terrorist, excuse me, having been described as visiting that

6

particular location on so many occasions, I naturally needed to

7

rule out that they were either involved in the bombing itself

8

or that they were involved in some manner in harboring the

9

fugitive, because the fugitive naturally at this time was still

10

a fugitive.

11

Q.

12

FBI is actively looking for a person that has committed

13

multiple acts of violence in Massachusetts, correct?

14

A.

15

throughout Massachusetts, but at the same time literally we are

16

receiving different intelligence streams from New Bedford and

17

North Dartmouth that the fugitive may be located in other areas

18

there right at that time.

19

Q.

20

apartment, right?

21

A.

While I am speaking with them we had -- yes, yes.

22

Q.

And where in that vicinity were the reports that Tsarnaev

23

might be?

24

A.

25

intelligence that suggested to us that a device used by --

Because this is at a time when you are still looking, the

We are both looking there actively in Watertown and

At that exact time as the defendants had come out of the

Prior to, and perhaps after, but I'm aware that prior to

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1

subscribed by Dzhokhar Tsarnaev was located and active within

2

that particular apartment.

3

suggesting to us that another of the phones that was also

4

subscribed by Tsarnaev was active at two locations about a

5

quarter of a mile away, within the whole Carriage Road

6

apartment complex.

7

We had similar information

Further afield, slightly, at UMass Dartmouth we

8

received another, I believed to be erroneous, a false, in

9

retrospect, indication that at or about 4:40 p.m. Dzhokhar

10

Tsarnaev had again logged onto the UMass Dartmouth network I

11

think specifically within the Physics Department.

12

tactical units at the University were deploying to that

13

location.

14

Carriage to respond there.

15

basically a couple of streets away, because we thought that

16

another phone was active there.

17

Q.

18

that you and the FBI had at the time that pointed to the fact

19

that Tsarnaev was in that general vicinity?

20

A.

Yes.

21

Q.

So, you indicated a few minutes ago that you started

22

speaking to both defendants.

23

that came out of the apartment as well?

24

A.

There was.

25

Q.

And who was that?

So, some

Ultimately, some of my colleagues on HRT left
Another group left to respond to

So, is it fair to say that there was a lot of information

And was there another individual

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1

A.

The girlfriend of Dias Kadyrbayev.

2

Q.

And what was her name?

3

A.

Her name is Bayan Kumaskali.

4

THE COURT:

Ms. Siegmann, I am going to have to take a

5

short break, because I have to make a telephone call at this

6

point.

So, we will take maybe five minutes.

7

THE CLERK:

8

All rise.

(The Honorable Court exited the courtroom at 1:48 p.m.)

9

(Recess taken)

10

THE CLERK:

11

All rise.

(The Honorable Court entered the courtroom at 1:54 p.m.)

12
13

111

THE CLERK:

This Honorable Court is back in session.

You may be seated.

14

MS. SIEGMANN:

Your Honor, do you want me to go find

16

MR. DEMISSIE:

I'll go.

17

MS. SIEGMANN:

Okay.

18

THE COURT:

19

MS. SIEGMANN:

15

counsel?

You may proceed.
Thank you, your Honor.

20

BY MS. SIEGMANN:

21

Q.

22

you had spoken to the defendants and Kadyrbayev's girlfriend in

23

the vehicles.

24

A.

Yes.

25

Q.

Can you tell us who did you speak to first?

Special Agent Walker, you indicated before the break that

Do you remember?

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1

A.

Ms. Kumaskali.

2

Q.

Why did you choose to speak to her first?

3

A.

At that point she was unknown to me, and I decided that I

4

would speak with her first and Kadyrbayev last in order to

5

develop information that I could best use when speaking with

6

Mr. Tazhayakov and Mr. Kadyrbayev.

7

Q.

8

last?

9

A.

Why did you decide to speak to the defendant Kadyrbayev

His name, of all the intelligence that we developed that

10

day relative to Tazhayakov, I just had more suggesting that

11

Kadyrbayev had a closer link to Tsarnaev, and so I wanted to

12

start from the periphery and go to the core.

13

relatively short period of time to be speaking with them, so

14

that's the order I chose.

15

Q.

16

day?

17

A.

18

she was.

19

birth.

20

Kazakhstan national.

She gave me an address in Almaty.

She

21

told me that she was the girlfriend of Dias Kadyrbayev.

She

22

told me that she was simply there for the weekend.

23

I had a

What information did you learn from Ms. Kumaskali that

I learned some basic identifiers.
She told me who she was.

I needed to know who

She told me a date of

I asked her where she lived.

She told me she was a

She told me that she, Tsarnaev, Kadyrbayev and

24

Tazhayakov participated in a family plan, a calling plan with

25

the mobile telephones, and she gave me Dias' telephone number.

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1

Most importantly, and preliminarily, she told me that she did

2

not know where Tsarnaev was located, and she did not know of

3

any threat by person or thing that might cause injury to my

4

colleagues preparing to enter the apartment.

5

Q.

And then did you speak to both defendants?

6

A.

I did.

7

Q.

And were the questions that you posed to them similar?

8

A.

Similar especially with regard to, "Where is Tsarnaev?

9

he in your apartment?

Are there threats?

10

the truth?

11

colleagues about to enter the apartment?"

12

Is he in your apartment?

Is

Are you telling me

Are there threats to my

Thereafter, because of, again, the intermittent

13

quality, the relatively short exchanges that I had with them,

14

as I went car to car and then returned car to car, I did not

15

duplicate information that I perceived to be effectively

16

accurate.

17

Tazhayakov or Kadyrbayev what the association was with this

18

woman, Kumaskali.

19

I moved and I spoke with the defendants as they sat in the

20

cars.

21

Q.

22

as you recall about your demeanor when you were talking to them

23

at this time, and what you said and how they responded?

24

A.

25

was stern, it was focused, and it was that part of it, "Where

In other words, I didn't challenge, ask necessarily

Certain things I took for granted, but then

And could you give the Court an idea and describe as much

Yes.

Initially, my demeanor was quite, very direct.

It

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1

is he?

What threats are there in the apartment?", as the

2

relatively short interviews continued, and I began to perceive

3

that those answers were accurate.

4

regard to those questions, i.e., threats to personnel or

5

neighbors, that they were deceiving me.

I did not perceive with

6

As the information got to more -- I needed to

7

determine the weight of this information, who these people were

8

and what their association was with the fugitive to give it

9

weight, and as the focus shifted from, "Where is Tsarnaev?", to

10

simply, "What is your association, where do you think he could

11

be now?", it became less stern; continually focused but less

12

stern.

13

With regard to the two defendants, actually, each of

14

them, I asked each initially whether they spoke English.

15

all replied in the affirmative.

16

defendants, I asked them at different times, as they both

17

looked away a little bit, I perceived that they weren't

18

necessarily being deceptive, but they weren't entirely

19

forthcoming, and I just perceived that there may be more

20

information.

21

They

When I addressed the two

And so I asked them each to look at me, a couple of

22

times each, "Look at me," and I asked them each, as I spoke

23

with them, to tell me what I just said.

24

both of them, in order to impress upon them the gravity and the

25

urgency of the information that I required, i.e., "Is there a

And I described for

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1

threat to my colleagues about to enter that apartment?", I said

2

words to both, words to the effect of, "This is enormously

3

important."

4

thing to ever happen in Massachusetts.

5

this is your opportunity, and you must tell me the truth."

6

I think I used the words, "This is the biggest
You have to understand

And I said to each of them, effectively, "Dzhokhar

7

Tsarnaev, he's dead.

Whether he is still living, or whether he

8

is going to go away, his life is over.

9

to be over, and you must tell me the truth.

Your life does not have
Look back at me,"

10

and again in a couple of instances, "Repeat back what I just

11

said," and they did that.

12

When it became apparent that he wasn't in the

13

apartment, or at least I believed we would not find him in the

14

apartment, the demeanor changed.

15

Q.

And how did it change?

16

A.

It changed to me as receiving information from any witness

17

that I interview, and it has been my experience that the single

18

best, perhaps only way, to receive information is to have the

19

person to show all manner of respect, to have the person, if

20

nothing more, if no other words, to like you, or at least not

21

dislike you.

22

Q.

23

speaking to the defendants?

24

A.

25

tone was sufficient to impress upon them the gravity of the

And, Special Agent, did you use vulgarity when you were

I do not believe I used any vulgarity.

My sternness of

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1

situation.

2

Q.

3

23 years of experience, is it your practice to use vulgarity

4

when speaking with subjects or witnesses?

5

A.

6

comportment to use vulgarity, particularly gratuitously and to

7

spice up.

8

uneducated person, and I don't need to do it in the course of

9

my work in the FBI, and I do not believe that I did it there,

Well, in your 23 years of experience, or based upon your

It is neither my professional practice or my personal

It is inelegant.

It is I think a mark of an

10

notwithstanding -- I do not believe that I did it there.

11

Q.

12

talking to the defendants at this time when they're in the

13

vehicles?

14

A.

15

while they were in the vehicles.

16

Q.

17

vehicles?

18

A.

19

observe any of my colleagues speak with any of them as they sat

20

in the vehicles.

21

Q.

22

open door, or through the front passenger seat of the vehicles?

23

A.

Both.

24

Q.

So, at times you would speak to them through the door and

25

sometimes from the front passenger seat?

So, Special Agent Walker, was anyone else besides you

I did not observe any of my colleagues speak with them

So, you were the only one that was speaking to them in the

Yes, but I was at one vehicle at a time.

But I did not

And how was it that you were speaking to them, through an

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117

1

A.

Yes.

2

Q.

Did either of the defendants appear to have any problems

3

understanding you?

4

A.

None whatever.

5

Q.

Did their responses appear appropriate and coherent?

6

A.

Yes.

7

Q.

Did either of them tell you they didn't understand

8

English?

9

A.

No.

10

Q.

In response to your questions, what did Defendant

11

Tazhayakov tell you?

12

A.

13

told me that he and Mr. Kadyrbayev resided together and were

14

the joint and only lessees of that apartment.

15

he had seen Tsarnaev a couple of days after the bombing, and he

16

further told me that he last saw him at or about 4:00 on

17

Thursday, April 18, when Tsarnaev, driving a green Honda,

18

dropped him off at the 69A Carriage apartment, and that he and

19

Tsarnaev and someone named Robel, whose last name

20

Mr. Tazhayakov did not know, departed the area of the

21

apartment.

22

Q.

23

less concerned about the defendants?

24

A.

25

potential involvement in crimes.

He told me that he was a student at UMass Dartmouth.

He

He told me that

As a result of hearing this information, were you more or

It heightened my suspicion that I needed to rule out their

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1

Q.

2

Kadyrbayev?

3

A.

I did.

4

Q.

And was it similar to what you had heard from

5

Mr. Tazhayakov?

6

A.

7

telephone number, and I did not ask the same of Mr. Kadyrbayev,

8

because, again, at that point in time I had more knowledge from

9

Kumaskali, and I did not effectively repeat myself as I went

10

And did you also obtain any information from defendant

Similar.

Actually, Mr. Tazhayakov provided his mobile

along.

11

But he mentioned that they were both residents and

12

co-lessees.

He may have not used that particular term, but I

13

needed to establish who had ownership and control over the

14

apartment, and that's effectively what he told me.

15

Q.

16

Ms. Kumaskali, did HRT go into the apartment?

17

A.

They eventually did, yes.

18

Q.

And by around 6:00 p.m. that evening did you know whether

19

Tsarnaev was in the apartment?

20

A.

21

HRT.

22

Q.

23

defendants that evening while they were in the vehicles?

24

A.

25

5:15; I started speaking with Mr. Tazhayakov at approximately

So, while you were talking to the defendants and

Yes.

I knew that he was not, based on the work of the

When, approximately, did you start talking to the

I started speaking with Ms. Kumaskali at approximately

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119

1

5:20; and I started speaking with Mr. Kadyrbayev at about

2

5:25 p.m.

3

Q.

4

in the apartment; is that right?

5

A.

Correct.

6

Q.

And what did you do at that point in time?

7

A.

I asked each one of the residents, the occupants,

8

Kumaskali and the two defendants, I said to them that the FBI

9

was very much interested in speaking with them in greater

So, by around 6:00 p.m. you learned that Tsarnaev is not

10

detail and in a more discreet, comfortable setting, and I asked

11

each of them whether they would be willing to accompany law

12

enforcement to the Barracks of the Massachusetts State Police

13

at North Dartmouth.

14

morning, that it was close, that it was, in fact, a discreet

15

location.

16

I explained to them I had been there that

At the time, there was a minor spectacle on Carriage

17

Drive and a growing spectacle with neighbors, residents,

18

people, I perceived a gathering crowd of media there, and it

19

became an untenable environment to speak with them.

20

asked each of them to go elsewhere with us to talk with us.

21

Q.

How did they respond to that request?

22

A.

They responded positively, and immediately or close to

23

immediately they responded with a seeming eagerness.

24

seemed as eager as I was to leave that location, because I

25

perceived that they were exposed to growing onlookers, and I

So, I

They

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1

perceived they felt some discomfort as a result of that.

2

Q.

How did they agree?

3

A.

They agreed verbally, and they agreed by also shaking

4

their head and evidencing, again, a seeming eagerness to leave

5

that location as quickly as possible.

6

Q.

7

defendants whether they were willing to go answer further

8

questions by the FBI at the State Police Barracks, had you been

9

able to eliminate your suspicions about them and their

Did they agree verbally to go?

Now, by the time that you asked these questions of the

10

involvement with Tsarnaev?

11

A.

No.

12

Q.

Why is it, Special Agent Walker, that you didn't attempt

13

to interview them in the apartment?

14

A.

15

than to have Special Agent Bomb Technicians go in and ensure

16

there were no explosives within the apartment, and that had not

17

occurred at that time.

18

was later, a subject of enormous public and media attention,

19

the apartment itself, and that, too, would have been an

20

untenable place for any interview.

21

Q.

22

State Police Barracks?

23

A.

They did.

24

Q.

By this time had any additional investigative personnel

25

arrived to assist you in your efforts?

The apartment was not a safe location to do anything other

Separately, it would have been, and it

So, the defendants agreed to be transported, then, to the

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1

A.

Not there on Carriage Drive, no.

2

Q.

Were people actually leaving that scene at this time?

3

A.

The troops were saddling up and heading off to the

4

other -- I came to learn they were heading off to the other two

5

threats that we perceived at the time, other locations where

6

Tsarnaev may be located, one down on -- the name of the road

7

escapes me right now -- but about a quarter of a mile away from

8

Carriage Drive in that neighborhood and, secondly, I believe,

9

heading back to UMass Dartmouth, where on the closed campus

10

they were running about trying to locate Tsarnaev because of

11

the login at about 4:40.

12

Q.

13

arrange transportation for them?

14

A.

Yes.

15

Q.

With whom?

16

A.

With the New Bedford Police Department.

17

Q.

Why didn't you transport them yourself?

18

A.

I didn't have a car, and even myself I would not have

19

transported one agent, one person under those circumstances.

20

Typically, we do it two at a time, but I didn't have the

21

resources to do so.

22

Q.

23

them?

24

A.

Not at the time they agreed to go there, no.

25

Q.

So, what did you do to ensure that there was someone there

After the defendants agreed to go to the Barracks, did you

Was anyone at the Mass. State Police Barracks to meet

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1

to interview them?

2

A.

3

from our New York Joint Terrorism Task Force that evidently had

4

been deployed to the area at an earlier request that I made for

5

additional personnel there, and I told him at 6:19 p.m., I

6

said, "Go to MSP Dartmouth."

7

MR. STAHL:

Judge, could we use names so it's just

THE COURT:

Yes.

8

I responded to a message I had received from a colleague,

easier?

9
10

If you could identify the agent.

11

THE WITNESS:

Absolutely, Judge.

Special Agent Farbod

12

Azad.

13

BY MS. SIEGMANN:

14

Q.

15

please.

16

A.

A-Z-A-D.

17

Q.

Now, sir, I'm sorry, you said that the New Bedford Police

18

Officers agreed to transport the defendants?

19

A.

Yes.

20

Q.

And how quickly did the New Bedford Police Officers

21

transport the defendants or leave the scene with the

22

defendants?

23

A.

24

would have expected.

25

Q.

And can you spell the last name for the court reporter,

It seemed pretty quickly, perhaps even more quickly than I
But they left fairly quickly.

And after they left, did you ask that anyone come back to

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1

the scene?

2

A.

I did.

3

Q.

Why was that?

4

A.

Because I wanted to seek the consent from the two lessees

5

of the apartment to conduct a search of the apartment, and so I

6

asked that they return.

7

did not perceive they had made it to, and they, in fact, had

8

not made it to the State Police Barracks yet, so I asked that

9

they be returned to Carriage Drive.

They hadn't been gone too long, and I

10

Q.

Were the defendants both brought back to the scene?

11

A.

They were not.

12

Q.

Who was?

13

A.

Mr. Kadyrbayev.

14

Q.

What did you do with Mr. Kadyrbayev when he arrived back

15

at the scene?

16

A.

17

stooped down next to an open door and talked to him through the

18

open door.

19

searching his apartment, and that the FBI, if he would allow

20

consent, would take from the apartment anything the FBI

21

considered material to its investigation.

22

didn't have to agree to afford consent for such a search, but

23

he indicated preliminarily that he would do so.

24
25

He arrived in a police vehicle.

In this instance, I

I explained to him that the FBI was interested in

I told him that he

He was restrained at the time, continued to be
restrained with the flex cuffs.

I asked that a police officer

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 124 of 169

1

from New Bedford assist me in cutting the cuffs off of his

2

hands, and then I read to Mr. Kadyrbayev a standard form, a

3

Consent to Search Form that the FBI uses in those cases.

4

MS. SIEGMANN:

Your Honor, at this point the

5

Government would like to -- let me mark this.

6

Exhibit No. 1, your Honor?

7

THE COURT:

8

MS. SIEGMANN:

9

11

MS. SIEGMANN:

Okay.
Just for the witness at this point,

Jarrett.

13

MR. STAHL:

Your Honor, again, could we have the name

of that police officer?

15
16

The original is with the Court Clerk,

Mr. Lovett.
THE COURT:

14

THE COURT:

If you know the name of the police

officer.

17

THE WITNESS:

18

Officer DeMello (ph).

19

MS. SIEGMANN:

Yes, I do, your Honor.

I believe it's

For some reason this is not coming up.

20

Hold on.

21

now on the screen.

22

BY MS. SIEGMANN:

23

Q.

24

on the screen just for the witness?

25

Can I mark it

Yes.

10

12

124

The ELMO, can you make it -- it's showing the witness
Thank you.

Special Agent Walker, do you recognize what I have put up

THE COURT:

There are screens around, and in the back

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125

1

row of the jury box between the chairs there are screens

2

accessible that you can pull out.

3

the old TV screens on airplanes.

4

row, in between your chairs there should be -- in the back row

5

itself, not only in the front row -- there should be the

6

screens.

7
8

They are a little bit like
For everybody in the back

We will be taking names about damage to federal
property.

9

(Laughter)

10

MR. STAHL:

He's treating it like an airplane, Judge.

11

THE COURT:

Yes, I see that.

12

going to be any food.

13
14

That is why there is not

I am permitting everyone to see this now.

It is

admitted.

15

(Exhibit No. 1 received into evidence)

16

BY MS. SIEGMANN:

17

Q.

18

has been marked Government Exhibit 1?

19

A.

I do.

20

Q.

What is it?

21

A.

From memory, it's an FD-26, but I don't see the top.

22

Q.

Oh, sorry.

23

A.

Is it an FD?

24

Consent to Search Form of the FBI, and that is the document

25

that I read to and executed with the defendant.

Special Agent Walker, do you recognize the document that

Here, let me show it to you.
Yes, FD-26.

It's a standard form, old line

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 126 of 169

1

Q.

2

to the defendant?

3

A.

4

Paragraphs 1 through 4.

5

Q.

6

Bureau of Investigation to permit a complete search of..."

126

So, can you take us through what did you read on this form

I read the entirety of the form, beginning with numbered

So, "I have been asked by Special Agents of the Federal

7

So, you read that part there?

8

A.

I did, and I did not read the parenthetical.

What I did

9

when it described the premises, I asked him and I pointed, I

10

said, "I need to now describe where I am going to search," and

11

I asked him what his address -- how he described his apartment.

12

Q.

13

form?

14

A.

He did.

15

Q.

And then, moving on to No. 2, did you read that as well to

16

him?

17

A.

Yes.

18

Q.

"I have been advised of my right to refuse consent"?

19

A.

Yes.

20

Q.

"I give this permission voluntarily"?

21

A.

I read that, yes.

22

Q.

"I authorize these agents to take any items which they

23

determine may be related to their investigation."

24
25

So, did he give you that information that you wrote on the

Did you read that as well?
A.

I did.

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127

1

Q.

And when you asked Mr. Kadyrbayev for his consent, what

2

was his response?

3

A.

4

that, I asked him, I said, "Well, presuming that you would

5

continue to like to proceed," I gave him the form.

6

Q.

What did you ask him to do?

7

A.

I asked him to read the form.

8

Q.

What was his response when he was reading the form?

9

A.

He began to read the form, and after a matter of some

He indicated a willingness to sign the form, and so with

10

seconds he looked up at me sort of quizzically, and he looked

11

at me and he said, "That's what you just read to me."

12

Q.

What did you say?

13

A.

I said, "Exactly.

14

Q.

Did you watch him as he continued to read the form?

15

A.

I did.

16

Q.

And after he had finished reading it, what happened?

17

A.

I asked him whether, having read the form, he was still

18

willing to permit a search of his apartment, and he said,

19

"Yes."

20

going to sign --" that is my date.

21

asked him to sign, and then I told him I would be signing as a

22

witness, and I did sign as a witness.

23

Q.

What did you do next?

24

A.

I think I thanked him, but that concluded our business

25

there.

I said, "Great.

Please continue to read the form."

We're going to both sign here.
I put the date down.

Or what happened next?

And I said, "All right.

You're
I

Excuse me.

Now, you're heading on to the

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128

1

Barracks."

2

Q.

3

having signed this, what happened?

4

A.

5

simply was unrestrained.

6

car.

7

form, he had the form on the backseat of the cruiser next to

8

him.

9

the street, and then the police officer began to put cuffs on

And before getting back into the police vehicle after

He had not left the police vehicle when he signed it.

He

He was sitting in the backseat of the

He was leaned over and he had -- when he was reading the

I was directly in front of him, stooped in the middle of

10

him, handcuffs, metal cuffs.

11

Q.

What did you do in response to seeing this?

12

A.

What did he do?

13

Q.

What did you do in response to seeing the police officer

14

putting handcuffs on the defendant?

15

A.

16

arrest, and he did not need to be handcuffed -- that he was not

17

under arrest, he was not a prisoner, but he did not need to be

18

handcuffed.

19

Q.

And how did the New Bedford Police Officer respond?

20

A.

The New Bedford Police Officer responded that he was still

21

going to handcuff him for his protection, and, given the

22

circumstances, given what the police officer likely just

23

witnessed, I acquiesced in that further restraint.

24

Q.

Was he handcuffed in the front or behind?

25

A.

In the front.

Yes.

I advised the police officer that he was not under

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129

1

Q.

And what happened after he was handcuffed?

2

A.

He was driven away.

3

Q.

Now, Special Agent Walker, you indicated that the

4

defendant Tazhayakov wasn't brought back to the 69A Carriage

5

Drive vicinity; is that right?

6

A.

That's correct.

7

Q.

But did the agents wait for his consent before executing

8

the consent search of the apartment?

9

A.

Yes, that's my understanding, they did.

10

Q.

At about the same time the defendants were being

11

transported to the Mass. State Police Barracks what was going

12

on in Watertown?

13

A.

14

6:45, it may have been a few minutes earlier, and it was from

15

the owner of the boat, if you will, I think on Franklin Street.

16

He reported having seen a person inside his boat, and the

17

Dispatch call reported that complaint to whom I believe to have

18

been the Field Commander, and then for the next two hours there

19

was a sizeable police response to that sighting in the boat.

20

Q.

21

the FBI and the JTTF, to figure out if Tsarnaev was in that

22

boat in Watertown?

23

A.

24

of the World, but certainly Massachusetts, yes.

25

Q.

A 911 call came in to Watertown Dispatch at approximately

So, did that at that point in time become the priority of

The priority of the FBI, and seemingly the focus of much

Is it fair to say that at this time there were few

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130

1

available resources to conduct witness interviews?

2

A.

Yes.

3

Q.

What time was Dzhokhar Tsarnaev arrested?

4

A.

At approximately 8:46, I've seen 8:47, he was taken into

5

custody and positively identified.

6

Q.

7

Massachusetts State Police Barracks?

8

A.

9

Barracks that morning to go to UMass, and I was next at the

At any point that evening did you go back or go to the

I returned -- as I mentioned, I left the State Police

10

Massachusetts State Police Barracks in North Dartmouth at

11

between approximately 12:30 a.m.

12

Q.

So, it was actually on April 20th?

13

A.

On April 20th, yes, excuse me.

14

Q.

And what were the defendants doing when you arrived at the

15

Mass. State Police Barracks?

16

A.

17

Mr. Tazhayakov was visible up front.

18

He was very quiet at the time.

19

drove them home I did not see Ms. Kumaskali at all.

20

Q.

21

defendants' involvement in criminal activity?

22

A.

At the time that I arrived?

23

Q.

Yes.

24

A.

We learned that -- we believed, suspected, based on their

25

statements, statements of the two defendants and Ms. Kumaskali,

I think they were sleeping.

I didn't see Mr. Kadyrbayev.
I think he was sleeping.

And I don't think until we

At that point what had the FBI learned about the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 131 of 169

1

that they had likely obstructed our investigation of

2

Dzhokhar Tsarnaev.

3

Q.

4

dormitory room?

5

A.

6
7

131

And, specifically, had they removed evidence from his

They told us that they removed evidence of -THE COURT:

Just so it is clear, the person to whom

these statements are made was not you?

8

THE WITNESS:

No, Judge.

9

THE COURT:

Go ahead.

10

MR. STAHL:

Judge, I also would object on relevancy

11

grounds to the suppression hearing.

12

not at issue in this hearing, it is the circumstances of the

13

statements, and I would move to strike and bar any testimony by

14

any agent.

15

THE COURT:

The actual statements are

I do not think it has to be very specific,

16

but, according to Agent Walker, they learned additional

17

information concerning involvement of the defendants, and we

18

will leave it at that.

19

Government is not going to be offering these statements.

20

MS. SIEGMANN:

21

THE COURT:

22
23

Because I understand that the

I'm sorry?

You are not going to be offering these

statements at trial.
MS. SIEGMANN:

The statements at the Barracks?

We are

24

talking about the Barracks now, the interviews at the Barracks.

25

We will be offering the substance of the confessions that

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 132 of 169

1

Special Agent Walker is talking about right now, but not

2

through this witness.

3

THE COURT:

Not through this witness.

4

BY MS. SIEGMANN:

5

Q.

6

defendants had provided that evening, were any searches

7

conducted that you were involved with between the hours of

8

1:00 a.m. and 4:00 a.m. on April 20th?

9

A.

Special Agent Walker, based upon the information that the

Yes.

I was involved in searching a garbage dumpster

10

located not far from the defendants' apartment.

11

Q.

What were you looking for?

12

A.

We were looking for the items that the defendants had

13

described --

14
15

132

THE COURT:

No.

What were you looking for, not

indirectly telling us what the defendants said?

16

THE WITNESS:

Okay.

We were looking for a black

17

plastic garbage bag with red ties, within which there may be a

18

backpack containing spent or manipulated fireworks.

19

BY MS. SIEGMANN:

20

Q.

And who went with you to conduct this search?

21

A.

FBI Special Agents Megan Dolan and Steven Schiliro from

22

New York.

23

Q.

Was your search successful?

24

A.

We completed the search.

25

described.

We did not find the bag that I

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 133 of 169

133

1

Q.

Did you return to the Barracks after the search?

2

A.

Yes.

3

Q.

And when you returned to the Barracks, did you have any

4

conversations with either of the defendants?

5

A.

I did.

6

Q.

Can you please describe that conversation?

7

A.

I saw Mr. Tazhayakov, and he made a statement to me at the

8

time, and he said, "I am beginning to think we are being held

9

here against our will."

10

Q.

How did you respond?

11

A.

I said, "You're free to leave.

12

outside for you, and you're free to take that taxicab, or we're

13

finishing up here and would be pleased to drive you home," and

14

he accepted the offer of a ride home.

15

Q.

16

the Barracks, he wanted you to drive him home, the FBI?

17

A.

He made that decision, yes.

18

Q.

Do you recall who you drove that evening back to the

19

Carriage Drive apartment?

20

A.

21

next to me.

22

Q.

23

you get out of the car?

24

A.

Yes.

25

Q.

Can you describe what happened after you got out of the

There is a taxicab waiting

So, rather than go in the taxicab that was waiting outside

I do.

Mr. Kadyrbayev was sitting in the passenger seat

And when you arrived at the Carriage Drive address, did

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 134 of 169

134

1

vehicle?

2

A.

3

defendants and Ms. Kumaskali.

4

apartment, and we asked if we could come in, and they said,

5

"Yes."

6

stood for a few minutes near their dining room table adjacent

7

to their kitchen.

8

Q.

What was the demeanor of the defendants at this time?

9

A.

They seemed very happy to be home.

There were six agents in three vehicles with the two
We walked toward their

We walked in as a group inside the apartment, and we

They were friendly.

10

They were joking at one point.

11

Q.

12

pleasantries at this time?

13

A.

14

very pleasant when they got home, back to the apartment.

15

Q.

And what happened when you were inside the apartment?

16

A.

There was some agent, I don't know whom, noticed two

17

items, and there was some conversation about an ashtray and a

18

baseball cap.

19

clear to them, based on interview or other information, that

20

somehow the ashtray and the baseball cap were meaningful,

21

specifically that they belonged to Dzhokhar Tsarnaev.

And they were speaking to you and pleasant -- with

Yes.

22
23
24
25

They seemed very pleasant.

And just as they had been pleasant, and they were

It became clear to me -- I inferred that it was

THE COURT:

You said, "Clear to them."

Who is the

"them"?
THE WITNESS:
BY MS. SIEGMANN:

To the five agents that I was with.

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135

1

Q.

Well, was there a discussion or a question posed to the

2

defendants whether those are the items that they took from

3

Tsarnaev's room?

4

A.

5

were not only his, but they had been taken from his room, and

6

we asked -- I may have asked, I don't recall, but -- "Would you

7

mind if we took those?

8

those, I assume."

9

items, because they belong to Dzhokhar Tsarnaev?"

It was either a question or a statement that those items

You don't have any interest anymore in

I think it was me.

"Can we take those

10

Q.

What was the response of the defendants?

11

A.

The defendants immediately agreed, proffered the ashtray

12

and the baseball cap.

13

briefly and was, in joking tone, kind of words to the effect

14

of, "Well, I kind of like this hat, I might want to keep it,"

15

smiling.

16

admonished him to tell him to give the hat to the FBI or to

17

give up the hat, and he handed us the hat.

18

Q.

19

defendants at that point?

20

A.

Yes, yes.

21

Q.

After obtaining those items did you have either of the

22

defendants sign some type of receipt?

23

A.

24

listed the two items, and we both executed the form.

25

Q.

Mr. Kadyrbayev put on the baseball cap

And Mr. Tazhayakov and Ms. Kumaskali seemingly

So, those items were willingly given to the FBI by the

I did.

I had Mr. Tazhayakov sign a property receipt.

After that what happened?

I

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 136 of 169

1

A.

We left.

2
3

We, the FBI, six FBI agents, left the apartment.

MR. STAHL:
the names?

Judge, I'm sorry.

Again, could we have

We are talking about five other agents.

4

THE COURT:

5

THE WITNESS:

If you know the names of the persons.
I think I do, your Honor.

Special Agent

6

Megan Dolan, Steven Schiliro, Farbod Azad, Sara Wood and

7

Michael Blane.

8
9

136

MR. STAHL:

Thank you.

BY MS. SIEGMANN:

10

Q.

When next did you see the defendants?

11

A.

At approximately 3:15 that afternoon, April 20th.

12

Q.

Can you describe how it was that you saw them?

13

A.

Yes.

14

conducting an investigation on the UMass campus.

15

call and/or email from my Command Post.

16

Special Agents of the Homeland Security Investigations were

17

going out to arrest Mr. Kadyrbayev and Tazhayakov.

18

About an hour, an hour and a half before that I was
I received a

They advised me that

I was instructed to join in that effort.
I met up with my colleagues.

I did join

19

in that effort.

We surveilled

20

for a short period of time a vehicle owned by the defendants,

21

and ultimately I arrived at the apartment, back at the

22

apartment, and saw the two defendants and Ms. Kumaskali.

23

Q.

24

the apartment?

25

A.

By the time you arrived, had HSI agents already entered

They had.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 137 of 169

137

1

Q.

And specifically they were being arrested for what?

2

A.

For the immigration violation.

3

Both of their F1 Student Visas had been revoked, and they were

4

arrested by HSI.

5

Q.

6

defendants doing?

7

A.

8

living room.

9

Q.

Were they restrained?

10

A.

No.

11

Q.

Were they talking?

12

A.

Yes.

13

Q.

And how did the defendants react to seeing you enter the

14

apartment?

15

A.

16

I said something to the effect to them, "I bet you guys didn't

17

expect to see me again or see me so soon."

18

They were both overstays.

So, when you entered the apartment that day, what were the

The defendants were sitting on a couch together in the

They smiled, gave me a greeting.

I was a friendly face.

I communicated with my Command Post that I had

19

arrived, and that things were quiet, and then I went over and

20

spoke briefly with the defendants.

21

Q.

How were the defendants dressed when you arrived?

22

A.

They were sitting.

23

don't know whether they were wearing shorts or long pants, and

24

I didn't see or don't recall what shoes they may have had on.

25

Q.

Neither of them had shirts on, but I

And you're aware that the prior evening, when they were

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 138 of 169

138

1

interviewed at the Barracks, they also didn't have shirts on?

2

A.

I am aware of that, yes.

3

Q.

Could you please describe to the judge the conversation

4

you had with the defendants in the apartment at that time?

5

A.

6

couch in the living room with --

I can.

7
8

THE COURT:

Let me just pause for a minute.

They were

under arrest at that point, is that right, if you know?

9

THE WITNESS:

10
11

The two defendants were sitting on an L-shaped

THE COURT:

I don't know, Judge, yes.

And do you know whether or not they had

been given Miranda warnings before your conversation by anyone?

12

THE WITNESS:

13

THE COURT:

I don't know to this day.

Go ahead.

14

A.

They were sitting on the couch with

15

Ms. Kumaskali and a woman whom I learned was Mr. Kadyrbayev's

16

mother.

17

a black backpack.

18

interested in recovering the backpack they had described the

19

night before.

20

located within the apartment.

21

told me in unison that the backpack had been thrown into a

22

dumpster, and that they had seen the dumpster removed by a

23

refuse truck on Friday.

24

Q.

So, the dumpster had been emptied, right?

25

A.

Yes.

I saw a backpack laying next to the back of the couch,
I said to them that the FBI was very much

I asked them whether the backpack was then
They both denied that, and they

The ref. (ph) truck had taken the dumpster away.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 139 of 169

139

1

Q.

So, how did you respond to hearing this?

2

A.

Well, I asked them to describe for me where the dumpster

3

was located, and a description was given.

4

described in accurate measure where the dumpster was located

5

that I had searched the night before.

6

Q.

7

is, when you talked to them on the couch that day?

8

A.

9

them that morning.

Mr. Kadyrbayev

What was their demeanor, the defendants' demeanor, that

As pleasant as they were the morning -- when I last saw

10

Q.

11

morning?"

12

what you mean by that?

13

A.

14

that they were anxious.

15

seen the dumpster leave was similarly sort of enthusiastic.

16

They happened to do it at the same time in the same manner as

17

when I asked them whether they would be willing to come with me

18

or come with law enforcement to the State Police Barracks.

19

There was a little bit of head shake as well, and they

20

seemed -- there was a short but a cooperative, pleasant

21

exchange.

22

Q.

23

the defendants did you see either of them cry?

24

A.

25

And what do you mean by, "As pleasant as they were in the
Can you just give us some more information as to

I didn't sense that they were under any -- I didn't sense
Their response with regard to having

At any point the prior evening when you were questioning

No.
MS. SIEGMANN:

Your Honor, if I could just have a

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 140 of 169

1
2
3

moment with co-counsel?
THE COURT:

Yes.

(Counsel conferred off the record)

4

MS. SIEGMANN:

5

THE COURT:

6

140

Your Honor, no further questions.

Mr. Stahl, this would be a point to take

an afternoon break, if it is agreeable to you.

7

MR. STAHL:

I'm sorry, your Honor?

8

THE COURT:

This would be a point to take an afternoon

9

break, if it is agreeable to you.

10

MR. STAHL:

Yes, it is.

11

THE COURT:

So, we will take a 15-minute break.

12
13

Let

me outline the schedule.
I do want to take up a series of ex parte motions that

14

have been made by several of the parties, and I want the other

15

parties to be present.

16

end, and I would say probably at 3:30.

17

testimony for today.

18

I would like to do that I think at the
That will finish the

I know that Mr. Demissie had another obligation, I

19

believe, tomorrow.

But you are no longer effectively in this

20

part of it, and I assume that you have no objection to the

21

hearing going forward tomorrow.

22

MR. DEMISSIE:

23

THE COURT:

Yes.

So, we will have a full day tomorrow, 9:00

24

to 1:00, 2:00 to 4:00.

25

MR. DEMISSIE:

Now, beyond that I said -And I would ask that I be allowed to

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1

141

come and attend the afternoon session.

2

THE COURT:

Yes.

I understand that you will be able

3

to be here for some portions of it, but because you are not

4

directly involved, I think we can go forward in your absence,

5

and the transcript will be available.

6

MR. DEMISSIE:

7

THE COURT:

So, I will deem 15 minutes to be 2:45.

8

THE CLERK:

All rise.

9

(The Honorable Court exited the courtroom at 2:35 p.m.)

10

(Recess taken)

11

THE CLERK:

12

All rise.

(The Honorable Court entered the courtroom at 2:50 p.m.)

13
14

Thank you.

THE CLERK:

This Honorable Court is back in session.

You may be seated.

15

THE COURT:

You may inquire.

16

MR. STAHL:

Thank you, your Honor.

17

THE COURT:

I prefer it.

18

Do I have to --

It is just easier to keep

track of where people are.

19

CROSS-EXAMINATION

20

BY MR. STAHL:

21

Q.

Good afternoon, Agent Walker.

22

A.

Good afternoon.

23

Q.

We've met a number of occasions, correct?

24

A.

It's been my pleasure, yes.

25

Q.

Thank you.

Thank you.

And you know that I represent Dias Kadyrbayev,

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142

1

correct?

2

A.

I do.

3

Q.

I take it from your direct -- and there is no doubt that

4

you are a very, very experienced FBI Agent, correct?

5

got 23 years on the job?

6

A.

I have 23 years on the job, yes.

7

Q.

What did you do before you were an FBI Agent?

8

A.

I was an attorney.

9

Q.

Really?

10

A.

Here in Boston.

11

Q.

Did you practice criminal law?

12

A.

I did not.

13

Q.

And you went into the Bureau, then, after your JD program,

14

or you practiced for a number of years?

15

A.

I practiced for six years here at a Boston firm, yes.

16

Q.

And, in addition to your basic training at FBI in

17

Quantico, you have received on-the-job training, correct?

18

A.

With the FBI, yes.

19

Q.

Yes.

20

A.

Yes.

21

Q.

And you have attended other formal training seminars at

22

various locations through the FBI as well, correct?

23

A.

Many, yes.

24

Q.

And were a number of those classes interview techniques of

25

individuals?

You've

Where?

From folks on the FBI?

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143

1

A.

No.

2

Q.

You have never received training in how to interview a

3

subject?

4

A.

At the FBI Academy, but not thereafter.

5

Q.

And that is a skill that you have developed, then, on the

6

job?

7

A.

Yes.

8

Q.

And as you said before on your direct, you have approached

9

things when you were -- you said you were basically an

10

interviewing agent, correct?

11

A.

When?

12

Q.

As opposed to, you are not HRT, you are not --

13

A.

Precisely correct.

14

strictly in an investigative but not a tactical capacity, yes.

15

Q.

Have you ever worked in a tactical capacity?

16

A.

I have.

17

Q.

And when was that?

18

A.

I was a member of the FBI SWAT Team in the Portland

19

Division when I was in Oregon.

20

Q.

Just, approximately, what years was that?

21

A.

1995 through 1997.

22

Q.

And when you say the "SWAT Team for the Portland

23

Division," is that different from this very elite full-time

24

unit, the HRT team you were talking about?

25

A.

Yes.

At the time in question I was there

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144

1

Q.

What is the difference?

2

A.

They are the varsity of the varsity.

3

process, two-week, think of SEAL Team Six, introduction, highly

4

skilled group, full-time trained.

5

and part-time or infrequently deployed.

6

Q.

So, HRT, that's all they do, correct?

7

A.

They train and deploy in high-risk situations, yes.

8

Q.

They are the hardcore, real-deal guys?

9

A.

As I described, I think they are the World's finest

They are a selection

We were part-time trained

10

Civilian Tactical Team, yes.

11

Q.

And you said you were a supervisor for a period of time?

12

A.

For 11 1/2 years, yes.

13

Q.

And was that at the Boston Field Office?

14

A.

In addition to other places, yes.

15

Q.

In your capacity now, are you a supervisory Special Agent?

16

A.

I am not.

17

Q.

You were talking on direct about your involvement in this

18

investigation.

19

overall the Marathon bombing investigation, correct?

20

A.

Yes.

21

Q.

Were you involved with that from day one?

22

A.

From the first hour, yes.

23

Q.

And so, you and your colleagues were kept up-to-date, you

24

had briefings at different command centers, or via email

25

messages, or other forms of communications as the course of the

Let me clarify.

You started talking about

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145

1

investigation went on?

2

A.

Yes.

3

Q.

And were you at the beginning tasked with specific roles,

4

in other words -- let me try to be clearer.

5

groups of agents broken out to different assignments?

6

A.

They were.

7

Q.

And were you in charge of a group of agents?

8

A.

No.

9

Q.

Who did you work for or report to at the time?

10

A.

That week, early on that week and in the first hours I was

11

tracking leads around the City of Boston.

12

after the bombing I was on Boston Common interviewing people.

13

For the next couple of days I continued to respond to random

14

leads that arose toward the latter part of the week before my

15

assignment down to North Dartmouth.

16

in streamlining our lead process.

17

Q.

18

from around the country were TDY-ed to the Boston area?

19

A.

20

less than 200, but certainly over 100.

21

Q.

22

Massachusetts normally?

23

A.

24

know the answer to that.

25

recall correctly, we have a couple of hundred in the Division.

Were different

So, a few hours

I assisted in the office

And during the course of the week, how many FBI agents

Over 100, probably, FBI personnel generally.

Probably

Approximately, how many FBI agents are in the District of

The Boston Division -- it's a little difficult.

I don't

We have a four-state region, and if I

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146

1

I don't know how many are here in the District.

2

Q.

3

four-state area, and then approximately a couple of hundred

4

other agents came in to assist, correct?

5

A.

Yes.

6

Q.

And was HRT -- where are they based out of?

7

A.

Quantico, Virginia.

8

Q.

And were they temporarily assigned up here as well during

9

that week?

So, approximately a couple of hundred here locally in this

10

A.

They were temporarily assigned here during a portion of

11

the week.

12

Q.

13

they located when you called for their assistance?

14

A.

I didn't call for their assistance.

15

Q.

Who did?

16

A.

They were deployed by our command post.

17

Q.

And that command post was somewhere in the Boston area,

18

correct?

19

A.

20

and I don't know from which command post they were deployed.

21

think it was probably from a forward command post in Watertown,

22

because they were flown from Watertown down to New Bedford to

23

respond to this particular threat that afternoon.

24

Q.

By helicopter?

25

A.

Yes.

I don't know when they first arrived.

Just skipping ahead for a moment, on April 19th where were

We had two command posts.

I don't know who deployed them,
I

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 147 of 169

Now, I want to focus your attention on April 19th.

147

1

Q.

You

2

spoke about on direct that you were tasked down to the

3

North Dartmouth, the UMass area, correct?

4

A.

Yes.

5

Q.

And you spoke generally and then a little more

6

specifically about intelligence information that started to be

7

gathered about this area of the state, correct?

8

A.

Yes.

9

Q.

And when is the first bit of intelligence information

10

developed that leads anyone, whether it's you or anyone from

11

the FBI or the JTTF, to the North Dartmouth/UMass area?

12

A.

Sometime in the early morning hours of April 19.

13

Q.

And by "early morning," I think I have seen emails that

14

the Government provided last night to us, it started at

15

approximately 6:00 a.m., early morning, correct?

16

A.

17

don't know the time, that the fugitive, Mr. Tsarnaev,

18

subscribed to four phones at that address, and that work was

19

relatively early in the morning.

20

time.

21

Q.

22

phones registered that were of interest to Carriage Drive,

23

correct?

24

A.

25

address, yes.

We were aware sometime during the early morning hours, I

I don't know exactly what

And that intelligence information, one was that there were

That four phones were subscribed by Tsarnaev at that

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148

1

Q.

Did you or any of the JTTF members contact the provider,

2

meaning -- I believe it was AT&T in this instance, correct?

3

A.

Yes.

4

Q.

Did you or any JTTF member contact AT&T to inquire further

5

what was going on with the phones?

6

A.

I'm not sure what you mean.

7

Q.

Well, you are familiar that there can be multiple people

8

on family plans or friend plans or group plans, correct?

9

A.

I think my family has one.

10

Q.

Those ads on TV now about invite your friends and family

11

as a way of saving money, correct?

12

loud.

13

THE COURT:

I'm not part of it.

But, yes.

You just have to answer out

If there is a question before you, you

14

have to answer it verbally as well as by expressive conduct.

15

A.

16

money.

17

BY MR. STAHL:

18

Q.

19

anyone from the JTTF contact AT&T?

20

the day, correct, and you have the ability to contact the

21

carrier providers, correct?

22

A.

Absolutely.

23

Q.

And it is something you do in the normal course of your

24

everyday investigations, correct?

25

A.

My family has one, because I'm sure it saves us some
So, yes.

Okay.

I will allow that, yes.

What I am specifically referring to is did you or
This was Thursday during

It's something we did here, yes.

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149

1

Q.

And so, then I take it someone did contact AT&T to develop

2

further hard evidence about what those phones were and who they

3

were registered to, correct?

4

A.

5

with regard to those phones, including data that might allow us

6

to locate Tsarnaev, yes.

7

Q.

8

aspect of the investigation?

9

A.

Likely, and every bit of data the phone company possessed

If I understand you correctly, you just don't know that

No, I just didn't do that aspect of the investigation.

10

But I know firmly that we obtained every bit of information and

11

data we could from AT&T, the toll records and any data that

12

would assist us in locating the user of any of those phones.

13

Q.

14

this group plan of cell phones?

15

A.

Within AT&T's database?

16

Q.

In any information you received from AT&T, correct.

17

A.

I don't believe so, no.

18

Q.

Did you review those records personally, or you are going

19

on some hearsay?

20

A.

I did not review those records personally.

21

Q.

You also said that approximately 6:19 a.m. on the morning

22

of April 19th, that information was received that Jahar had

23

logged onto a computer system on the UMass Dartmouth campus,

24

correct?

25

A.

So, was Mr. Kadyrbayev's name one of those linked with

It was not contemporaneously received, but it was received

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 150 of 169

150

1

that at 6:19 that did, in fact, occur, yes.

I came in receipt

2

of that information hours later.

3

Q.

About how long, how many hours later?

4

A.

Probably about six hours later.

5

Q.

So, about noon?

6

A.

Or slightly after, yes.

7

Q.

And so, it's fair to say at least by noon you have several

8

pieces of information that in your mind is tying this

9

Carriage Drive address to something to do with Jahar, correct?

10

A.

Yes.

11

Q.

You then had information about some of the content of the

12

phones and their communications, at least the phones, not

13

knowing who, but with contacts with Russia and other locations,

14

correct?

15

A.

I know of one, and I described it at 10:06 a.m.

16

Q.

And then at 10:20 a.m., I think you testified that another

17

phone bounced off a tower that you thought was about a mile

18

from campus, correct?

19

A.

20

10:06 call, which is the only call that I am aware of that

21

bounced off a tower that morning, I received about 20 minutes

22

after that.

It caused me to do something, that is, go over to

23

the campus.

So, I am only aware to date of a call, and it

24

occurred at 10:06 a.m.

25

Q.

Let me clarify.

I'm sorry.

My receipt of the information about the

Did you just say you learned about that

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 151 of 169

151

1

contemporaneously, so at 10:06 you learned about that call near

2

the campus?

3

A.

4

about 10:40 that morning, when I was at the State Police

5

Barracks, and my command post told me that about 20 minutes ago

6

a phone linked to -- and it was told to me -- I recall

7

receiving a report that it was a "Black Hat's" phone.

8

told me that they were telling me that Tamerlan Tsarnaev's

9

phone had transmitted a message to Russia 20 minutes earlier.

Nearly contemporaneously.

I probably received the call at

That

10

They were referring to, I know retrospectively, to a single

11

call that was transmitted from the phone bearing the suffix

12

9049 at 10:06 a.m., is the only one I am aware of.

13

Q.

14

was Tamerlan, the older brother, correct?

15

A.

That's what I heard when my command post called me, yes.

16

Q.

And that he had sent the phone message?

17

A.

Yes.

18

Tamerlan's phone to his parents in Chechnya was transmitted

19

20 minutes ago, and it bounced off a tower a mile from the

20

UMass Dartmouth campus.

21

Q.

When was the shootout with Tamerlan?

22

A.

Sometime before 1:00 a.m. same day.

23

Q.

So, hours before?

24

A.

Yes.

25

Q.

About eight hours before.

I'm sorry.

You said that the information was "Black Hat"

The message I received was that a message on

We could do military time.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 152 of 169

1

A.

(Witness nodded head).

2

THE COURT:

I may be confused now.

Just so I

3

understand, the phone call that you referred to was on the

4

morning of April 19th; is that right?

5

THE WITNESS:

6

THE COURT:

7

10

Yes, your Honor.

The shootout, or fire fight, or however we

characterize it, was concluded by what time?

8
9

152

THE WITNESS:

Judge, I think that by 1:01 a.m. we were

in contact with the late Tamerlan Tsarnaev, so it had to
precede that, Judge.

I think it was before 1:00 a.m.

11

THE COURT:

1:00 a.m. on the 19th?

12

THE WITNESS:

Yes, sir.

13

BY MR. STAHL:

14

Q.

15

phone call that Tamerlan had instigated, correct?

16

A.

No, sir.

17

Q.

So, you had the computer logons near the University or at

18

the University, you had the cell phones, and you had some

19

information from another student that Jahar was friends with or

20

friendly with the residents at 69A Carriage Drive, correct?

21

A.

22

information, yes.

23

Q.

24

12:00 noon to 1:00 p.m., correct?

25

A.

So we are correct, that it couldn't have possibly been a

It was reported his device, his phone.

In fact, more than one student, but, yes.

And other

And all of this information you have somewhere around

No.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 153 of 169

153

1

Q.

You have the cell phone information and the computer

2

information by then, certainly?

3

A.

Yes, sir.

4

Q.

And then you have information from a number of students

5

that Jahar was friends with some of the people in that

6

apartment and had visited that apartment, correct?

7

A.

8

later in the afternoon.

9

Q.

You just testified about that?

Likely only one by the time that you described.

Okay.

I'm sorry.

Likely only one by that time?

Several

I don't

10

understand.

11

apartment by 1:00 that afternoon?

12

A.

13

information from a single friend of Tsarnaev.

14

interviewing many associating Carriage Drive to Tsarnaev.

15

During the course of the afternoon we heard from several

16

others, the last of whom was the defendant Phillipos.

17

Q.

18

knowledge that we have been talking about, that you suspected

19

that Jahar could be hiding out at 69A Carriage Drive, correct?

20

A.

By the end of the afternoon I firmly believed it, yes.

21

Q.

And even before that you were suspecting it, correct?

22

A.

Yes.

23

Q.

Your beliefs became firmer as the day went on, correct?

24

A.

Yes.

25

Q.

Or that it could be where another cell is located, I think

Yes.

Likely only friends with one person in that

We had probably only received collectively
We were

You testified on direct that at this point, meaning the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 154 of 169

154

1

you said?

2

A.

I don't believe I said that, no.

3

Q.

Well, you have said that in the investigation, the FBI's

4

investigation, and you said you were, in particular, concerned

5

that there were other cells out there, meaning potential other

6

people involved in the bombing, correct?

7

A.

Yes.

8

Q.

Or that there could be other bombs planned, correct?

9

A.

Without question, yes.

10

Q.

Other attacks?

11

A.

Yes.

12

Q.

And April 19th was a Thursday, correct?

13

A.

No, April 19th was a Friday.

14

Q.

Friday.

15

part of the investigation by that time?

16

A.

What part?

17

Q.

The Carriage Drive part.

18

A.

I was the senior and one of very few FBI Agents in that

19

region.

20

speaking for the FBI.

21

Q.

22

correct?

23

A.

Yes.

24

Q.

You have testified, what, hundreds of times?

25

A.

No, no.

And as the agent -- were you in charge of this

So, yes, I was working with the unified command,

Agent Walker, you have been an agent for 23 years,

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 155 of 169

155

1

Q.

Fifty times or more?

2

A.

A dozen, perhaps.

3

Q.

And you have been an investigative agent, case agent, or

4

lead agent on I think you said thousands of investigations?

5

A.

6

but I have been case agent probably hundreds of cases.

7

Q.

8

search warrants?

9

A.

Yes.

10

Q.

And approximately how many search warrants would you say

11

you've applied for?

12

A.

Dozens.

13

Q.

And I am sure you have been involved in many dozens more

14

as not the affiant but a participant in the search warrants,

15

correct?

16

A.

Many more, yes.

17

Q.

So, you understand what it takes to put together an

18

affidavit for probable cause to search a residence or a

19

location, correct?

20

A.

Yes.

21

Q.

And, in fact, you did not apply for a search warrant for

22

69A Carriage Drive, did you?

23

A.

Are you asking me personally or my agency?

24

Q.

You personally.

25

A.

I did not.

No.

Not 50.

I said that I had interviewed over a thousand people,

And as case agent or line agent, have you applied for

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 156 of 169

156

1

Q.

And I am focusing on the time period before 5:05 p.m.,

2

when the assault on the residence occurs --

3

A.

Yes.

4

Q.

-- not after, okay?

5

A.

Yes.

6

Q.

And no one from the FBI applied for a search warrant from

7

the time that intelligence information was developed till HRT

8

hit the residence, correct?

9

A.

You mean coming to a Court and seeking Court approval when

10

you say "applying;" is that right?

11

Q.

Correct.

12

A.

I do not believe that anyone did that by that time, yes,

13

correct.

14

Q.

15

you first surrounded the residence, correct?

16

A.

Correct.

17

Q.

And certainly you had no search warrant on the scene once

18

the individuals were forcibly removed from the apartment and

19

cuffed, because you needed Mr. Kadyrbayev's consent to search

20

the apartment, correct?

21

A.

22

have a search warrant, the FBI did not, by the time of the

23

events you describe, correct.

24

Q.

25

correct?

Well, certainly you had no search warrant on scene when

I don't know that they necessarily follow, but I did not

And you certainly had time to apply for a search warrant,

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 157 of 169

1

MS. SIEGMANN:

2

THE COURT:

157

Objection.

He may answer the question.

3

BY MR. STAHL:

4

Q.

5

hours between, let's say, 1:00, when you developed this

6

information, and in your words you have -- well, you had

7

reasonable suspicion, correct?

8

A.

9

apply for a search warrant, as I have come to understand the

I'm just focusing on time, Agent.

Given the number of

I don't necessarily agree that we had sufficient time to

10

process by which search warrants are obtained and authorized in

11

terrorism investigations.

12

Q.

13

decades on the FBI and your involvement in other search

14

warrants that search warrants can be obtained quickly when the

15

circumstances arise, correct?

16

A.

Yes.

17

Q.

And you are aware that there are even provisions for

18

telephonic search warrants, affidavits and search warrants,

19

correct?

20

A.

21

investigation.

22

Department of Justice will authorize a telephonic search

23

warrant in a terrorism investigation, so I am not competent to

24

answer that.

25

Well, Agent Walker, you're certainly aware from your

I don't know if that pertains with regard to this
Specifically, I don't know whether the

MS. SIEGMANN:

Objection to this line, because the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 158 of 169

1

158

witness just said he is not competent to testify on that.

2

THE COURT:

Well, it is probing the areas that he

3

understands.

I think it is probably peripheral, but I will

4

permit it.

5

BY MR. STAHL:

6

Q.

7

into the apartment, correct?

8

A.

Yes.

9

Q.

Now, without going back and repeating the history of the

In any event, no search warrant was obtained before entry

10

investigation, I just want to focus on, you spoke about the

11

extreme caution and dangerousness of the situation as you and

12

the FBI perceived the Carriage Drive location, correct?

13

A.

Correct.

14

Q.

And you testified on direct that in your mind there was a

15

high probability that Jahar was present at the location,

16

correct?

17

A.

Yes.

18

Q.

And that, based upon the information that was developing,

19

he was your suspect -- one of the suspects in the bombing,

20

correct?

21

A.

Yes.

22

Q.

And, therefore, the extreme caution and the massive amount

23

of manpower was brought to bear on the Carriage Drive location,

24

correct?

25

A.

I don't understand your question.

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159

1

Q.

You have testified on direct that you were going to

2

surround a location where you thought a very violent criminal

3

was present, correct?

4

A.

Yes, sir.

5

Q.

And that that demanded special measures, special tactics?

6

A.

Yes.

7

Q.

And that it would not be a normal situation, where you or

8

other interviewing agents would just go up and knock on the

9

door and see if he was there, correct?

Yes, sir.

10

A.

Correct.

11

Q.

And so, that's where we come in to set up surveillance,

12

first, of the apartment, correct?

13

A.

Surveillance was established, yes.

14

Q.

And I think you testified that that was mainly done by

15

Massachusetts State Police, correct?

16

A.

Yes, sir.

17

Q.

And they were part of your Joint Terrorism Task Force?

18

A.

Yes.

19

Q.

Who else is part of the Joint Terrorism Task Force to this

20

case?

21

A.

22

local.

23

Task Force participated in this investigation.

24

Q.

25

try and name all 25, but we have FBI, correct?

Twenty-five, thirty different agencies, federal, state and
Every agency that participates on the Joint Terrorism

All right.

So, at least, just briefly, I'm not going to

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 160 of 169

1

A.

Yes.

2

Q.

Homeland Security, correct?

3

A.

Yes, sir.

4

Q.

ATF?

5

A.

Yes.

6

Q.

DEA?

7

A.

They participated, yes.

8

the JTTF, but they were working it, along with many agencies

9

that we normally don't see.

160

They are not typically party to

OIG, for instance, yes.

10

Q.

Office of the Inspector General?

11

A.

Yes.

12

Q.

U.S. Customs?

13

A.

Yes.

14

Department of Homeland Security.

15

Q.

They don't exist anymore.

They exist within the

Yes.

A very large, all-encompassing agency.

16

And the Massachusetts State Police.

I think you

17

mentioned Rhode Island State Police were involved?

18

A.

Yes.

19

Q.

Was New Bedford Police Department part of the JTTF?

20

A.

No.

21

Q.

How about UMass Campus Police?

22

A.

No.

23

Q.

When an agency is part of the JTTF, how is it structured?

24

Who do they report to?

25

police officers assigned, and they report to the FBI?

So, you have all these agents and

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1
2

MS. SIEGMANN:

Objection, your Honor.

161

This is beyond

the scope of --

3

THE COURT:

Oh, not really.

It was opened up, not

4

altogether fruitfully.

But, in any event, I will permit some

5

response to get a sense of the hierarchy.

6

A.

7

platform that the FBI found meaningful in the late, perhaps

8

early '90s in New York, and we're operating with common

9

reporting.

The different agencies come to a common investigative

FBI reports were a common -- typically a memorandum

10

of understanding for each agency.

11

We're typically -- each colleague is furnished with FBI

12

equipment, and what we're doing is we're communicating and

13

acting as if we were a group of FBI agents.

14

that regard, and the agencies are varied.

15

We're sitting in FBI space.

We're fungible in

So, when the JTTF goes and conducts either a minor

16

interview or a major investigation, it really doesn't matter so

17

much to us whether it's an FBI Agent going out and doing it, or

18

a State Police Trooper or Boston Police Officer.

19

coming back, the information is coming into the FBI system.

20

are all sharing and sharing intelligence.

21

They are

The leadership in a critical incident like this

22

typically will devolve automatically to the FBI Special Agent

23

in Charge, but we're reasonable people.

24

internal administrative procedures conflict, we'll work that

25

out.

If one Agency's

But we're one group working together toward a common

We

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162

1

cause.

2

BY MR. STAHL:

3

Q.

4

far, but this is significant for certain reasons, is, so you

5

said that all the law enforcement people that are assigned to

6

JTTF then work with the FBI and out of FBI space, and they

7

write 302s, correct?

8

A.

Yes.

9

Q.

So, whether they are Massachusetts State Police or Boston

Okay.

And just a brief follow-up, I don't want to go too

10

Police, they're not going to write Boston Police reports when

11

they are assigned to the JTTF; they will write FBI-style forms

12

onto your computer system, correct?

13

A.

14

correct, yes.

15

Q.

And they are deputized as Federal Agents, correct?

16

A.

Those that need Federal deputation, yes.

17

Q.

Now, approximately when did the first surveillance start

18

of 69 Carriage Drive?

19

A.

Shortly before noon.

20

Q.

How was it set up?

21

say agents or police officers, law enforcement, were assigned

22

around the apartment?

23

A.

I don't know.

24

Q.

Were they in SWAT clothes, meaning -- you understand what

25

I mean by "SWAT clothes," right --

If they are furthering the work of the JTTF, that's

Let me be specific.

How many, we'll

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163

1

A.

I do.

2

Q.

-- whether it's camouflage, like HRT, or the solid colors

3

by Boston SWAT or other SWAT Teams?

4

A.

5

a "soft perimeter," and later we hardened the perimeter.

Early

6

on I do not believe anyone was in any tactical regalia.

Later,

7

I believe that at actually quite a distance from the apartment

8

there were members of the Massachusetts State Police Tactical

9

Team, their STOP Team.

I understand that early on I knew that we had what we call

10

Q.

In fact, your ASAIC, Assistant Supervisory Agent in

11

Charge, emailed you and was curious or wanted to confirm that

12

there was no marked police presence around the apartment,

13

correct?

14

A.

Yes.

15

Q.

The purpose of the surveillance was to gather intelligence

16

information?

17

A.

No.

18

Q.

The purpose was to ensure that no one left the area?

19

A.

To ensure that Tsarnaev did not flee the area, and people

20

that were occupants of the apartment did not flee the area

21

without us having an opportunity to talk to them.

22

Q.

23

was that this location, 69 Carriage Drive, could have contained

24

Jahar, correct?

25

A.

Now, you said that your concern and the concern of the FBI

Yes.

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164

1

Q.

And it also could have contained explosives or bomb-making

2

devices, correct?

3

A.

Yes.

4

Q.

And that was based upon your misinformation, as it turns

5

out, that Jahar was present, correct?

6

A.

7

there, correct.

8

Q.

9

premises, correct?

I don't, again, know that the two follow.

He was not

Yes.

Well, and you found no bomb-making materials on the

10

A.

Correct.

11

Q.

But at the time, meaning April 19th, starting around

12

midday and moving later into the afternoon, that was your

13

concern and your fear, is that there was a danger to that

14

community and it had to be contained, correct?

15

A.

Among other things, yes.

16

Q.

So, did any law enforcement officer, SWAT Team or anyone

17

from the FBI, start to move and evacuate the surrounding

18

buildings and the neighbors from that four-person apartment?

19

A.

I do not believe so.

20

Q.

So, you described the premises, and it is an

21

apartment-style complex, correct?

22

A.

Yes.

23

Q.

Two-story buildings?

24

A.

Yes, two-story buildings within the complex.

25

Q.

And they are aluminium-sided or vinyl-sided in a light

Yes.

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165

1

color, correct?

2

A.

Yes.

3

Q.

And each entryway, the front entrance, leads to a common

4

hallway, and there will be two apartments on the first floor

5

and then two apartments above, correct?

6

A.

7

the interior of the buildings, but at least in that building.

8

Q.

9

description was it was a heavily populated, heavily trafficked

At least in that building.

I have not been elsewhere in

And then you said that this was a -- I believe your

10

area, correct?

11

A.

Yes.

12

Q.

So, a good-size apartment complex, correct?

13

A.

Yes.

14

Q.

And then you testified that Carriage Drive itself, across

15

the street are single-family residences, correct?

16

A.

Correct.

17

Q.

And your testimony is, to the best of your knowledge, no

18

effort was made to move the residents of any of the

19

single-family homes or the surrounding apartments to an area of

20

safety, correct?

21

A.

Not until HRT arrived, correct.

22

Q.

Well, even once HRT arrived, no one was moved until well

23

after the people were taken out of the apartment, correct?

24

A.

25

occupants of the apartment leaving the apartment.

I believe that's correct.

No one was moved prior to the

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 166 of 169

166

1

Q.

2

correct?

3

A.

Correct.

4

Q.

I think your term was you "rolled" in together?

5

A.

Yes.

6

Q.

So, from the best of your recollection, how many officers

7

were present surrounding 69A Carriage Drive?

8

A.

Probably in excess of 50, perhaps 60 or more.

9

Q.

Fifty, 60 or more, correct?

10

A.

Yes.

11

Q.

And what type of vehicles were they in?

12

A.

Most operated unmarked cars.

13

leased by HRT when they arrived.

14

unmarked.

15

Mass. State Police tactical vehicle, black, might have been

16

lightly -- probably lightly armored, but a tactical vehicle.

17

Q.

18

Boston, the armored-up, big vehicles that the SWAT Team hangs

19

on the side as they approach, correct?

20

A.

21

Now, you testified that you were on scene with HRT,

Some of them may have been
I don't know that.

But

At one point later in my work there, I saw a

Right.

The ones we have seen throughout the pictures of

A sizeable vehicle, yes, sir.
MR. STAHL:

Judge, I am about to move into another

22

area, and I would like to pre-mark some exhibits, so perhaps

23

this is a good time.

24

THE COURT:

So, we will break for the testimony today.

25

I was just talking to Mr. Lovett.

Both of us feel far

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167

1

from home, and I am probably going to ask the Marshal's Service

2

and Systems about the prospect of going back to Courtroom One.

3

We chose this courtroom because it provided the

4

maximum amount of places that people could view this, but I am

5

not sure that in-person interest is that substantial at this

6

point.

7

work that out.

8
9
10

So, I think that is what we will try to do, if we can

So, we will try and probably try this case tomorrow
morning in Courtroom No. One.
But we will take the break at this point, and I do

11

want to take up a couple of ex parte matters.

12

one that is raised by the Government.

13

that counsel for the other defendants remain present, because I

14

may want to discuss that with them afterwards.

15

mean outside of the courtroom.

16

MR. STAHL:

The first one is

I would ask, however,

By "present," I

Your Honor, I presume that we are

17

following our normal procedure, that the witness is on cross,

18

the Government won't talk to --

19

THE COURT:

If you want me to issue an order --

20

MR. STAHL:

I think that's appropriate.

21

THE COURT:

-- to that effect, I will.

22

So, now that you are on cross-examination, no

23

discussion of the substance of your testimony with anybody.

24

Let us put it that way.

25

THE WITNESS:

Yes, your Honor.

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 168 of 169

1

THE COURT:

2

hear the Government ex parte.

3

outside, because I will, I think, be inviting you in

4

afterwards.

5
6

THE CLERK:

So, we will break at this point.

168

I will

I would ask counsel to remain

All rise.

(The Honorable Court exited the courtroom at 3:30 p.m.)

7

(Recess taken)

8

(Sealed ex parte hearing held on the record)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(WHEREUPON, the proceedings adjourned)

 Case 1:13-cr-10238-DPW Document 217 Filed 05/27/14 Page 169 of 169

1

169

C E R T I F I C A T E

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3
4

I, Brenda K. Hancock, RMR, CRR and Official Reporter

5

of the United States District Court, do hereby certify that the

6

foregoing transcript constitutes, to the best of my skill and

7

ability, a true and accurate transcription of my stenotype

8

notes taken in the matter of United States v. Kadyrbayev, et

9

al,

No. 1:13-cr-10238-DPW.

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20
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Date:

May 23, 2014

/s/ Brenda K. Hancock
Brenda K. Hancock, RMR, CRR
Official Court Reporter