Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 1 of 275 PageID# 5599 882 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia January 20, 2015 9:30 a.m. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME V APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 (Pages 882 - 1156) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 2 of 275 PageID# 5600 883 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 CLASSIFIED INFORMATION SECURITY OFFICERS: CHRISTINE E. GUNNING MAURA PETERSON ALSO PRESENT: GERARD FRANCISCO SA ASHLEY HUNT JENNIFER MULLIN, ESQ. OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 3 of 275 PageID# 5601 884 1 I N D E X 2 DIRECT CROSS REDIRECT RECROSS 3 4 WITNESSES ON BEHALF OF THE GOVERNMENT: 5 David Raymond Shedd 887 904 6 Michael Sheehy 918 927 7 Donald C. Stone 928 8 Vicki Jamieson Divoll 9 915 917 956 996 998 999 1022 1053 1054 Lorenzo Vernon Goco 1056 1063 10 Martha Lutz 1070 1082 1086 1087 11 Kim McManus 1088 1094 1097 12 Reju Kurian 1102 1126 1133 13 Julia Perriello 1138 1141 14 Gayle Scherlis 1142 1135 15 16 EXHIBITS 17 MARKED 18 GOVERNMENT'S: 19 No. 1 2 3 4 34 20 21 22 23 24 25 RECEIVED 1145 1145 1145 1145 1092 53 79 100 101 110 897 1145 935 938 1065 117 119 1111 1111 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 4 of 275 PageID# 5602 885 1 EXHIBITS (Cont'd.) 2 MARKED RECEIVED 3 GOVERNMENT'S: 4 No. 120 121 122 124 126 1111 1111 1111 1111 1111 134 142 143 144 145 900 1075 1075 1075 1077 157 158 159 160 1106 1106 1106 1106 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 5 of 275 PageID# 5603 886 1 P R O C E E D I N G S 2 (Defendant and Jury present.) 3 THE CLERK: Criminal Case 10-485, United States of 4 America v. Jeffrey Alexander Sterling. 5 note their appearances for the record. 6 7 MR. TRUMP: MR. OLSHAN: States. Eric Olshan on behalf of the United MR. FITZPATRICK: Good morning, Your Honor. THE COURT: 13 MR. POLLACK: Good morning. Good morning, Your Honor. 14 Pollack on behalf of Mr. Sterling. 15 MR. MAC MAHON: Barry Good morning, Your Honor. Edward MacMahon for Mr. Sterling. 17 MS. HAESSLY: 18 THE COURT: 19 And good morning, ladies and gentlemen. Good morning. Mia Haessly. Good morning. 20 thank you again for being here right on time. 21 over the three-day weekend? 22 the case? 23 I want to Any problems Didn't bump into anything about (Jurors shaking heads.) 24 25 Dennis Fitzpatrick on behalf of the United States. 12 16 Jim Trump on Good morning, Your Honor. 10 11 Good morning, Your Honor. behalf of the United States. 8 9 Would counsel please THE COURT: proceed. No? Excellent. Then we're ready to Call your next witness, please. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 6 of 275 PageID# 5604 Shedd - Direct 887 1 MR. TRUMP: David Shedd. 2 THE COURT: All right. 3 MR. TRUMP: Your Honor, may I have a moment with 4 counsel while -- 5 THE COURT: Go ahead. 6 DAVID RAYMOND SHEDD, GOVERNMENT'S WITNESS, AFFIRMED 7 DIRECT EXAMINATION 8 BY MR. TRUMP: 9 Q. Would you please state your name. 10 A. David Raymond Shedd. 11 Q. Would you spell your last name, please. 12 A. S-h-e-d-d. 13 Q. What is your current position? 14 A. I am the acting director of the Defense Intelligence 15 Agency. 16 Q. How long have you been the acting director of DIA? 17 A. Since August 7 of 2014. 18 Q. What is DIA? 19 A. I'm sorry? 20 Q. What is DIA? 21 A. DIA is a defense intelligence component in support of our 22 warfighters principally, and it is an agency that is 23 approximately 54 years old. 24 Q. It's an intelligence agency? 25 A. It is, embedded inside the Department of Defense. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 7 of 275 PageID# 5605 Shedd - Direct 888 1 Q. And prior to being the acting director, what was your 2 position? 3 A. 4 deputy director of the Defense Intelligence Agency. 5 Q. Before that, what did you do? 6 A. For five years before that, I was -- I served in two 7 separate positions in the Office of the Director of National 8 Intelligence. 9 was chief of staff to the Director of National Intelligence, a Since September of 2010, I have been -- or had been the From May 2005, for approximately two years, I 10 position that was established after the 9/11 Commission created 11 and then under law the Intelligence Reform and Terrorism 12 Prevention Act established the Director of National 13 Intelligence. 14 My second job was as deputy director for Policy, 15 Plans, and Requirements for the entire Intelligence Community. 16 Q. 17 National Intelligence, did you maintain security clearances 18 with respect to all intelligence agencies and operations? 19 A. I did. 20 Q. Prior to your stint at ODNI, what did you do? 21 A. From February, I believe, 20 of 2001 to May 2005, I served 22 on the National Security Council's Office for Intelligence 23 Programs and Intelligence Reform. 24 Q. 25 Security Council? And during your time with the Office of the Director of And what -- just briefly, what is the NSC, or the National Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 8 of 275 PageID# 5606 Shedd - Direct 889 1 A. The National Security Council was established under the 2 National Security Act of 1947 after World War II in order to 3 facilitate the decision making on behalf of the President and 4 his National Security Cabinet on all matters pertaining to 5 national security issues in our relations with countries abroad 6 and in setting those priorities that are set by the President 7 inside the executive branch. 8 Q. It's a White House body? 9 A. It is a White House body. 10 Q. And who is in charge, so to speak, of the National 11 Security Council? 12 A. 13 NSC, and he occasionally chairs the NSC meetings. 14 practical matter, the National Security Advisor, one of whom 15 was my boss during that period of time that I served there, 16 Dr. Condoleezza Rice, really manages the National Security 17 staff, which I belong to. 18 Q. Would you describe your role as an oversight role? 19 A. Absolutely. 20 Q. And would you please explain what, what function you 21 performed in terms of oversight? 22 A. 23 sensitive programs that it oversees from a standpoint that 24 they, they are carried out in a manner that is consistent with 25 the policy objectives that have been established, consistent Well, the President is the statutory one in charge of the As a The White House and the President has a number of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 9 of 275 PageID# 5607 Shedd - Direct 890 1 with the reporting requirements to the U.S. Congress, both the 2 House of Representatives and the Senate, in terms of 3 intelligence oversight, and the conduct of those activities 4 consistent with law, policy, and the objectives then of the 5 policies that are set out by the President. 6 Q. 7 correct? 8 A. 9 now 17 with the Office of the Director of National And again, that refers to all intelligence agencies, It does, to all 16 elements of the Intelligence Community, 10 Intelligence. 11 Q. Prior to your tenure on the NSC, what did you do? 12 A. Prior to that, for approximately ten months, so I want to 13 say in March of -- or, yes, about March of 2000 until I went to 14 the NSC, I served on the Office of Congressional Affairs at 15 CIA, the Central Intelligence Agency. 16 Q. And before that, were you also with the CIA? 17 A. I was. 18 Congressional Affairs, I served as the chief of operations for 19 the Counterproliferation Division in the Directorate of 20 Operations of the Central Intelligence Agency. 21 Q. 22 Counterproliferation Division at that time? 23 A. 24 President and again the policy directives that we received to 25 collect intelligence on nations that would potentially present From August 1997 until I went to the Office of And just briefly, what was the mission of the It was critical for us based on the mandates of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 10 of 275 PageID# 5608 Shedd - Direct 891 1 threats to our national security in the areas of weapons of 2 mass destruction -- chemical, biological, radiological, and 3 nuclear weapons and their delivery systems -- that threaten the 4 United States, and then alongside of that, some related special 5 activities issues that may require the efforts to, to delay or 6 halt those activities. 7 Q. 8 operations for the Counterproliferation Division? 9 A. And what were your duties and responsibilities as chief of My duties consisted of applying the best possible review 10 and oversight in the conduct of actually doing the operations 11 aimed at the collection of sensitive intelligence as well as 12 the activities that touched upon the ability to forestall the 13 activities where, where possible. 14 Q. During your -- 15 A. I'm sorry, to expand on that, by countries that wish to do 16 us harm. 17 Q. 18 Counterproliferation Division, did you know someone by the name 19 of Robert S., or Bob S.? 20 A. I did. 21 Q. And were you in a, a supervisory position with respect to 22 Robert S.? 23 A. I was. 24 Q. And were you familiar with an operation that we have been 25 calling Classified Program No. 1? And during your tenure as chief of operations for the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 11 of 275 PageID# 5609 Shedd - Direct 892 1 A. Was. 2 Q. And what was Bob S. or Robert S.'s role in that operation? 3 A. Mr. S. was the direct line supervisor/manager of that 4 program. 5 Q. 6 operation during your tenure between 1997 and 2000? 7 A. 8 fire set, which is best described as the inner workings to 9 cause the implosion of a nuclear weapons device, to, to Iran in And very briefly, what was your understanding of that The objective of that operation was to provide a modified 10 this particular case, that -- with alterations that would not 11 be detected. 12 Q. 13 day-to-day role with respect to Robert S. and, and the 14 operation? 15 A. He worked for me. 16 Q. Did he keep you informed about all aspects of the 17 operation? 18 A. He did. 19 Q. And how did he keep you informed? 20 A. Most of the time, we would have conversations about them, 21 and he would provide updates. 22 that had many other types of operations going on, so I would 23 see him as often as necessary. 24 25 Now, as the chief of operations, what was, what was your I was in an operational division In other instances, I might see cable traffic pertaining to the operational activity, cable traffic being our Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 12 of 275 PageID# 5610 Shedd - Direct 893 1 form of correspondence at CIA by way of memorializing the 2 operational activities. 3 Q. 4 on cables drafted by Robert S. or others? 5 A. I did. 6 Q. Now, you mentioned Iran and flawed plans. 7 possibility of any technology transfer a significant concern to 8 you as the chief of operations? 9 A. It was. 10 Q. And how did you deal with that? 11 A. We applied the most rigorous standards by relying on 12 specialists from a national laboratory to both not only create 13 and establish the flaws inside the fire set design but also to 14 red team it in a manner that would, through people with 15 expertise, that would then attempt to find the flaws inside the 16 fire set design. 17 Q. 18 supervisor who had to give approval to this operation? 19 A. In the supervisory sense of the word, yes. 20 Q. And were there then multiple layers of review above you? 21 A. There were. 22 Q. Was this a, a limited access program? 23 A. It was. 24 Q. Relative to other programs that you were overseeing at the 25 Counterproliferation Division, was this more or less closely And from time to time, did you have to review and sign off Was, was the Would you describe yourself as sort of the first line Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 13 of 275 PageID# 5611 Shedd - Direct 894 1 held? 2 A. 3 ongoing in counterproliferation. 4 Q. Do you know the defendant, Jeffrey Sterling? 5 A. I do. It was closely held relative to what other programs were 6 7 MR. TRUMP: the defendant? 8 9 May the record reflect he's identified THE COURT: It will. BY MR. TRUMP: 10 Q. Did you come in contact with him as the chief of 11 operations for the Counterproliferation Division? 12 A. I did. 13 Q. Was he working with Robert S.? 14 A. He was. 15 Q. And did you have meetings with Robert S. and the 16 defendant? 17 A. I did. 18 Q. And briefings on Classified Program No. 1? 19 A. I did. 20 Q. Did Mr. Sterling ever voice any concerns to you about the 21 operation? 22 A. He did not. 23 Q. As this operation moved through the approval process, how 24 did you address for your superiors the issue of the possible 25 technology transfer? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 14 of 275 PageID# 5612 Shedd - Direct 895 1 A. Through multiple discussions and meetings, we sought to 2 seek the assurances through a red team, which consisted of 3 again individuals who were not part of the original team in 4 building the modifications into the fire set, and these were 5 specialists from a national lab who looked at, at the flawed 6 fire set in attempts to discover where those flaws were. 7 nonspecialist myself, I had to rely then on individuals with, 8 with nuclear specialization. 9 Q. As a And was this something that you briefed to those upper 10 management individuals who had to approve the program? 11 A. I did. 12 Q. When you left your position as chief of operations, you 13 moved on to the Congressional Affairs position? 14 A. I did. 15 Q. And was the -- and that was in March of, approximately 16 March of 2000? 17 A. It was. 18 Q. Was the Classified Program 1, that operation still ongoing 19 when you left? 20 A. It was. 21 Q. Now, in your position as the Congressional Affairs 22 liaison, what does that do? 23 A. 24 activities to the U.S. Congress and our oversight committees, 25 the House Permanent Select Intelligence Committee on the House I was in the position of representing operational Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 15 of 275 PageID# 5613 Shedd - Direct 896 1 side obviously and on the Senate Select Intelligence Committee, 2 SSCI, on the Senate side. 3 We have a long history at CIA in terms of oversight 4 and activities associated with that, and so this was a special 5 position intended to keep the Congress fully and currently 6 informed on intelligence activities as they unfolded or were 7 completed. 8 Q. 9 raised by either the House or Senate committees? In your role, were you tasked to respond to questions 10 A. I was. 11 Q. And in that role, did you become aware of and familiar 12 with the defendant's EEO or employment-related complaints 13 against the agency? 14 A. I did. 15 Q. And, and how did you become familiar with that? 16 A. I was asked by Mr. Mike Sheehy, who was on the committee, 17 and then joined by Wyndee Parker on the House Permanent Select 18 Intelligence Committee to come to a session with them to talk 19 about the career advancement of an officer inside the 20 Directorate of Operations or the Clandestine Service of the 21 CIA. 22 23 MR. TRUMP: And if we could have the assistance of Mr. Wood, Government 53? 24 THE COURT: Is there any objection? 25 MR. MAC MAHON: Just a second, Your Honor. I'm Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 16 of 275 PageID# 5614 Shedd - Direct 1 897 sorry. 2 No objection, Your Honor. 3 THE COURT: 4 (Government's Exhibit No. 53 was received in All right, 53 is in. 5 evidence.) 6 BY MR. TRUMP: 7 Q. 8 as Government Exhibit 53? 9 A. I do. 10 Q. What is that document? 11 A. That document memorializes a meeting then that I had on 12 the 8th of August of 2000 with HPSCI minority staff director 13 Mike Sheehy and HPSCI minority staff member Wyndee Parker. 14 Q. 15 position? 16 A. Yes. 17 Q. And what was the purpose of this memo? 18 A. Again, the purpose was to put on record the conversation 19 that I had had with Mr. Sheehy and Ms. Parker concerning the 20 conversations that they had requested to have with me. 21 Q. And to whom was this memo directed? 22 A. To the Deputy Director of Operations, Jim Pavitt, and to 23 the Chief of Staff and now currently the Director of CIA, John 24 Brennan, when he was chief of staff to, to George Tenet. 25 Q. Do you see what's been identified and received in evidence And these were people that you were familiar with in your So based on to whom it was sent, this, this was a serious Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 17 of 275 PageID# 5615 Shedd - Direct 898 1 matter for the CIA? 2 A. It was. 3 Q. And what topics were discussed at that meeting? 4 A. The essence of the topics were really focused on career 5 advancement within the Directorate of Operations for a case 6 officer, that is, a human intelligence collector, and what 7 might be the barriers to that advancement and how does the 8 process work by way of career opportunities, assignments, and 9 so forth. It was purely the administrative side of the 10 management of a case officer's career. 11 Q. 12 already met with Mr. Sheehy and Ms. Parker prior to your 13 meeting with them? 14 A. It was. 15 Q. At your meeting with Mr. Sheehy and Ms. Parker, did either 16 of them raise any questions or issues with respect to any 17 specific operations or programs with which the defendant was 18 associated? 19 A. No. 20 Q. Any mention of Classified Program No. 1 at all? 21 A. No. 22 Q. And other than the redactions that were made for 23 classification purposes, was this a complete, thorough summary 24 of, of your meeting? 25 A. And was it your understanding that the defendant had To the best of my ability, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 18 of 275 PageID# 5616 Shedd - Direct 899 1 Q. Did you have any further involvement with respect to any 2 of the employment-related matters raised by, by the defendant? 3 A. No. 4 Q. Move forward to your position at the NSC. 5 of 2003, were you aware of a meeting that Dr. Rice had with The 6 New York Times? 7 A. I was. 8 Q. Did you participate in that meeting? 9 A. I did not. 10 Q. Move on to your position with the Director of National 11 Intelligence and direct your attention specifically to January 12 of 2006. 13 of the Director of National Intelligence? 14 A. 15 National Intelligence John Negroponte. 16 Q. And what were your day-to-day duties and responsibilities? 17 A. Keep the trains running on time. 18 Q. Were you familiar with a book called State of War? 19 A. I was. 20 Q. Specifically, chapter 9? 21 A. Yes. 22 Q. And did you review chapter 9 and prepare an assessment of 23 that chapter for your boss, the Director of National 24 Intelligence? 25 A. In the spring What was your position at that time with the Office I was chief of staff to Ambassador and Director of I did. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 19 of 275 PageID# 5617 Shedd - Direct 900 1 Q. And why did you do that? 2 A. One of the principal responsibilities that the Director of 3 National Intelligence had in this newly created position in 4 2005 was to be principal intelligence advisor to the President. 5 In that role and function, it was a memo that I believed was 6 required in order for him to be familiar with what was believed 7 to be a significant leak of intelligence information in chapter 8 9 concerning national security affairs, and therefore, it was 9 to prepare him in the event of conversations at the White House 10 concerning that. 11 Q. And did you prepare a memorandum to that effect? 12 A. I did. 13 Q. Would you look at Government 134? 14 book. 15 It's in the second Do you have that in front of you? 16 A. I do. 17 Q. Is that the memorandum you prepared? 18 A. It is. 19 THE COURT: 20 MR. MAC MAHON: 21 THE COURT: 22 (Government's Exhibit No. 134 was received in 23 evidence.) 24 BY MR. TRUMP: 25 Q. Is there any objection to that? No objection, Your Honor. All right, it's in. When you read chapter 9 of that book, there was an Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 20 of 275 PageID# 5618 Shedd - Direct 901 1 operation described as Operation Merlin; is that right? 2 A. That is correct. 3 Q. Did you recognize it when you read about it? 4 A. I did. 5 Q. Is that the same operation we were referring to with 6 respect to Mr. Robert S. as Classified Program No. 1? 7 A. 8 program. 9 Q. Yes, certainly the individual associated with that In your memorandum, in paragraph 1, I'd like to focus on 10 the sentence, "Thus, the targets will know in detail that the 11 plans were a CIA operation designed to slow their nuclear 12 weapons progress." 13 Now, prior to that, you provided a brief summary of 14 the operation; is that right? 15 A. Yes. 16 Q. And why do you say, "Thus, the targets will know in detail 17 that the plans were a CIA operation designed to slow their 18 nuclear operations progress"? 19 A. 20 who were in receipt of the modified fire set, that the delivery 21 of that fire set was, in fact, a CIA operation back when it was 22 delivered in 2000. 23 Q. 24 that out with respect to your role with Ambassador Negroponte? 25 A. Because publicly, chapter 9 would confirm to the Iranians, And why is it necessary -- why was it necessary to point It was important for Director Negroponte to understand Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 21 of 275 PageID# 5619 Shedd - Direct 902 1 that there had been a breach of security that would affect -- 2 or potentially affect certainly the ability of CIA to conduct 3 similar operations related to this, and now we had to accept on 4 safe assumption that the Iranians would know that, that we had 5 mounted an operation against them. 6 Q. 7 methodologies? 8 A. Absolutely. 9 Q. Now, in the last paragraph on the first page, you discuss So in your opinion, it potentially compromised valuable 10 the disclosure to the Russians, and you state, "In addition to 11 disclosing important facts to Iran, the book will advise the 12 Russians not only that we have details of some of their most 13 sensitive nuclear weapons components, but that at least two 14 former Russian nuclear weapons experts are in the U.S. and are 15 cooperating with CIA." 16 Focusing first on the first part of that sentence, 17 why is that potentially damaging to the United States 18 intelligence interests, the disclosing of the details of some 19 of their most sensitive nuclear weapons components? 20 A. 21 Berlin Wall fell, has been an adversary of ours, and I believe 22 we can certainly say they're an adversary of us today. 23 identifying intelligence about individuals who had either 24 defected or had been allowed to immigrate here and resettle in 25 the United States, and the knowledge that they had of Arzamas Russia and formerly the Soviet Union before 1989, when the We were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 22 of 275 PageID# 5620 Shedd - Direct 903 1 16, which is where the nuclear weapons designs inside the 2 former Soviet Union/Russia today were actually designed, and so 3 what we were putting in evidence in chapter 9 is that we were 4 actually using for intelligence purposes these, these Russian 5 engineers in that regard. 6 Q. 7 these individuals were working with the United States? 8 A. 9 inside the United States and security of the United States And what is the potential harm to letting Russia know that I believe it is a safe assumption that our nuclear posture 10 relies heavily on understanding what our adversaries know or, 11 as importantly, do not know what we know about their programs, 12 and so by confirming this, aspects of the U.S. nuclear program, 13 in fact, could, I do not know for a fact, but could require 14 modification as a result. 15 Q. 16 "Moreover, there is enough detail about both former Russian 17 experts to allow Russian counterintelligence officials to 18 identify them," what does this say to other people that might 19 be approached by the CIA or other intelligence agency and asked 20 to cooperate with, with the government? 21 A. 22 we have found a reticence on the part of would-be cooperative 23 individuals to be more reluctant to cooperate in the area of 24 intelligence for fear that, of course, they will see either 25 their name or their activities or both in the public arena, and Now, the second part of what you say in this paragraph, My experience has been that with every public revelation, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 23 of 275 PageID# 5621 Shedd - Cross 904 1 in this case, that was no exception. 2 Q. 3 discussion of Classified Program No. 1 with the statement that 4 any beneficial effect of Classified Program No. 1 will likely 5 be negated by the book's publication, and without stating the 6 obvious, was that your assessment for your boss, the Director 7 of National Intelligence? 8 A. And finally, on the second page, you wrap up your It was. 9 MR. TRUMP: One second. 10 The Court's indulgence? 11 THE COURT: Yes, sir. 12 MR. TRUMP: That's all I have, Your Honor. 13 THE COURT: All right. 14 Cross-examination, Mr. MacMahon? 15 CROSS-EXAMINATION 16 BY MR. MAC MAHON: 17 Q. Good morning, Mr. Shedd. 18 A. Good morning. 19 Q. I'm sorry, I hurt my back. 20 apologize. 21 That wasn't a look for you; I I'm one of the -- my name is Edward MacMahon. I'm 22 one of Mr. Sterling's lawyers. How are you today? 23 A. Doing well, thank you. 24 Q. How many times did you meet with Mr. Trump to go over the 25 testimony that you gave today? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 24 of 275 PageID# 5622 Shedd - Cross 905 1 A. I believe three times. 2 Q. And, and your testimony was that Mr. Risen's story 3 confirms facts about Classified Program No. 1? 4 you said? 5 A. It is. 6 Q. Isn't it your testimony that actually confirms what's in 7 Mr. Risen's book as being true? 8 MR. TRUMP: Objection, Your Honor. 9 THE COURT: Sustained. Is that what 10 BY MR. MAC MAHON: 11 Q. 12 that won't work with the CIA because of Mr. Risen's book. 13 you say that? 14 A. 15 to cooperate with CIA when there is public revelations. 16 Q. 17 asset or anyone who hasn't cooperated with the CIA because of 18 this book, correct? 19 A. I cannot. 20 Q. Right. 21 because of money, right? 22 A. No. 23 Q. CIA pays a lot of money to sources, doesn't it? 24 A. On occasion. 25 Q. Excuse me? You testified, I think you said that there were assets Did I believe what I said, to be more accurate, are reticent Right. And you, you can't tell us today of any single And most of those people cooperate with the CIA Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 25 of 275 PageID# 5623 Shedd - Cross 906 1 A. On occasion. 2 Q. How many times were you interviewed by the FBI when you 3 were asked whether Mr., Mr. Sterling at the House of 4 Representatives made disclosures about Classified Program 5 No. 1? 6 A. To the best of my recollection, two times. 7 Q. Right. 8 Sterling say anything at the House of Representatives about 9 Classified Program No. 1, correct? And they kept asking you the same question: 10 A. No. 11 Q. That was the question the government kept asking you, 12 wasn't it? 13 A. 14 Ms. Wyndee Parker, whether the discussion was held about 15 classified programs. 16 Q. Correct. 17 A. And that's all I would be competent to answer. 18 Q. Right. 19 again, right? 20 A. A second interview, yes. 21 Q. The same question: 22 the interview at the House, right? Did 23 24 25 No. The question was in my presence with Mr. Sheehy and And you told them no once, and they asked you MR. TRUMP: He must have done something wrong at Objection, Your Honor. He was not present at the interview. THE COURT: Sustained. Rephrase your question. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 26 of 275 PageID# 5624 Shedd - Cross 907 1 BY MR. MAC MAHON: 2 Q. 3 House of Representatives and complain about what he considered 4 as discrimination at the House, correct? You -- it is perfectly legal for Mr. Sterling to go to the 5 6 MR. TRUMP: Mr. Shedd is not an attorney. 7 8 Objection, Your Honor. THE COURT: Well, Mr. Shedd, if you know. And if you don't know, don't guess. 9 THE WITNESS: Could you repeat the question? 10 BY MR. MAC MAHON: 11 Q. 12 House of Representatives and complain about what he considered 13 was unfair treatment at the CIA, correct? 14 A. I believe so from a legal standpoint. 15 Q. And you, you were never told of any information that 16 Mr. Sterling disclosed to the House of Representatives that he 17 wasn't entitled to disclose, correct? 18 A. That's correct. 19 Q. You told the FBI that Mr. Risen is on your blacklist? 20 that a term you used? 21 A. I believe so. 22 Q. And Mr. Risen is on a blacklist because he writes stories 23 that are critical of the CIA, correct? 24 A. 25 speaking to him, and I had his efforts to contact me blocked. It was completely legal for Mr. Sterling to go to the No. Is He is on my blacklist because I had no interest in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 27 of 275 PageID# 5625 Shedd - Cross 908 1 Q. Okay. 2 A. During my period at the National Security Council. 3 Q. And how many other journalists did you have blocked from 4 access to you when you worked with the NSC? 5 6 MR. TRUMP: Objection, Your Honor. Objection. Not THE COURT: I'm going to overrule that objection. relevant. 7 8 And when did that happen? You can answer. 9 Go ahead. THE WITNESS: I do not recall, but the principle of 10 the matter was I was not interested in speaking to journalists 11 as an intelligence professional. 12 BY MR. MAC MAHON: 13 Q. 14 recipient of the blacklist for you, correct? 15 A. I did. 16 Q. Okay. 17 would tell Iran that we were trying to interfere with their 18 nuclear weapons program? 19 said? 20 A. Disrupt would be the accurate word, yes. 21 Q. And your testimony to the jury is that the Iranians don't 22 know that the United States government is trying to interfere 23 with their nuclear weapons program? 24 A. 25 suspecting that, in fact, we're doing it. Right, but you listed Mr. Risen specifically as the And you testified that the disclosures in the book Is that a fair statement of what you Having it confirmed to them is very different than Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 28 of 275 PageID# 5626 Shedd - Cross 909 1 Q. Do you believe the Iranians didn't know before 2006 that 2 the Americans were trying to interfere with their nuclear 3 weapons program? 4 A. 5 in which we were trying to interfere or believed to interfere 6 with their nuclear program. 7 Q. 8 the, I think your term, fire set plan was accomplished by 9 Merlin to the Iranians in Vienna? I do not believe before 2006 that they knew the modalities That would be a correct statement. Were you ever given any details as to how the delivery of 10 A. Yes. 11 Q. You knew it was delivered wrapped in a newspaper? 12 A. I don't recall how it was delivered. 13 Q. Did you understand that it was actually delivered in 14 person to someone at the Iranian office? 15 16 MR. TRUMP: Objection. THE COURT: Sustained. He just testified he does not know how. 17 18 BY MR. MAC MAHON: 19 Q. 20 correct? 21 A. That's a loaded word when you say "any details." 22 Q. Do you know any details at all -- you said you were 23 briefed on this program in depth, correct? 24 A. Correct. 25 Q. Okay. So you don't know any details about how it occurred, Do you remember any details at all about how it was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 29 of 275 PageID# 5627 Shedd - Cross 910 1 that Merlin delivered the plans for a nuclear weapon to the 2 Iranian office in Vienna? 3 A. 4 had a meeting at a certain location in Vienna. 5 Q. A meeting with someone from Iran? 6 A. From Iran, correct. 7 Q. Now, Mr. Trump asked you if you did an evaluation of the 8 compromise caused by the publication of State of War. 9 remember that? He had established contact through a letter, and he then Do you 10 A. In terms of chapter 9? Is that what you're referring to? 11 Q. Well, no, of the whole book, State of War. 12 asked you, didn't he? 13 A. I think the reference was to chapter 9. 14 Q. Well, Mr. Tenet asked you to do an analysis of the whole 15 book, correct? That's what he 16 MR. TRUMP: Objection, Your Honor. Beyond the scope. 17 THE COURT: And chapter 9 is the only -- chapter 9 is 18 the only issue in this case, so I'm going to -- you can confine 19 that question to chapter 9, please. 20 THE WITNESS: Let the record show it wasn't 21 Mr. Tenet. 22 BY MR. MAC MAHON: 23 Q. Who was it, sir? 24 A. Ambassador Negroponte. 25 Q. Okay. I apologize. But you did do an analysis of chapter Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 30 of 275 PageID# 5628 Shedd - Cross 911 1 9, didn't you? 2 A. I would not call it an analysis. 3 Q. Well, what would you call it? 4 A. I would call it a summary statement of what I believed to 5 be the compromises of chapter 9 in an approximately two-page 6 memo. 7 Q. 8 thought the likely sources were, weren't you? And you were also asked to do an analysis of who you 9 MR. TRUMP: Objection. 10 MR. MAC MAHON: 11 THE COURT: Beyond the scope. It's the same analysis. I'm going to, I'm going to permit that. 12 Overruled. 13 BY MR. MAC MAHON: 14 Q. Mr. Shedd -- 15 A. Repeat the question. 16 Q. -- you were also asked, weren't you, to do an analysis of 17 who the likely source was for the disclosure of information in 18 State of War, chapter 9, correct? 19 A. 20 access to it; that's correct. 21 Q. I was asked what potential individuals would have had Right. 22 23 So that is a question, sir. And your answer was -- THE COURT: Well, be careful. No improper revelation of names. 24 MR. MAC MAHON: 25 THE COURT: I won't, Your Honor. All right, that's fine. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 31 of 275 PageID# 5629 Shedd - Cross 1 BY MR. MAC MAHON: 2 Q. 912 Your answer was that the likely source was agency -- 3 MR. TRUMP: Your Honor? 4 THE COURT: Wait. 5 MR. TRUMP: I'm going to object at this point. 6 He's asking for an opinion of this person as to possible sources. 7 THE COURT: The jury will be told that they can't 8 decide this case on conjecture but on the evidence, but I think 9 this evidence is sufficiently relevant to the defense. I'm 10 overruling the objection. 11 BY MR. MAC MAHON: 12 Q. 13 chapter -- one paragraph starts "Chapter 9, A Rogue Operation"? 14 No, it's not an exhibit, Mr. Shedd. 15 it? 16 A. Mr. Shedd, do you remember writing this report on Do you remember writing Could you give me a -- 17 MR. TRUMP: If there's a report that -- 18 THE COURT: Yes, I agree. 19 authored by this witness, it's only fair to show it to him. 20 MR. MAC MAHON: 21 THE COURT: 22 23 24 25 If you've got a document number? I will, Your Honor. All right. What -- is there an exhibit Mr. MacMahon, is that -MR. MAC MAHON: It's not an exhibit, Your Honor. I can show it to him to refresh his recollection. Can I show this to Mr. Wood, Your Honor -- give this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 32 of 275 PageID# 5630 Shedd - Cross 1 913 to Mr. Wood? 2 THE COURT: Yes, go ahead. 3 Mr. Trump, do you have a copy of that someplace? 4 MR. TRUMP: Someplace, Your Honor, but not -- 5 THE COURT: All right. 6 BY MR. MAC MAHON: 7 Q. 8 Mr. Shedd. 9 A. I need context. 10 Q. And you can go back -- just look at the page that's opened 11 to you, where it says "Analysis of the Compromise." 12 that? 13 A. Just the page, just the page that was opened to, Do you see "Rogue Operation"? I'm sorry, I see a blackened page with one sentence. 14 THE COURT: 15 (Bench conference on the record.) 16 THE COURT: 17 All right, let's approach the bench. Mr. MacMahon, you've got to give him more context than this. 18 19 Do you see MR. MAC MAHON: It's all blacked out, Judge. I'm sorry, Your Honor. 20 THE COURT: Well, where did it come from? 21 MR. MAC MAHON: This came from discovery in this 22 case, and if you go back, he did an analysis of the entire 23 book, and it's -- 24 25 THE COURT: note? Is there a heading? Is this a Lotus What is this? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 33 of 275 PageID# 5631 Shedd - Cross 1 914 MR. MAC MAHON: I think you've got to go back a 2 couple more pages. He's tasked to evaluate the whole book and 3 say who the likely sources are, and his answer is agency 4 officials for chapter 9, and that's the point. 5 THE COURT: 6 MR. MAC MAHON: 7 THE COURT: 8 All right, but is this the start of it? I think so. I'm looking at the Bates stamp numbers. Even they are cut off. 9 Well, show him this first page. 10 MR. TRUMP: I don't think this is Mr. Shedd, Your 11 Honor, but it may -- this, this part is, but not up here, I 12 believe. 13 14 15 THE COURT: Do you have a better copy with the Bates stamp number? MR. MAC MAHON: This is, this is as good as it gets 16 from what we have in the SCIF. 17 THE COURT: 18 MR. MAC MAHON: Well, show this to him. 19 briefly, Your Honor? 20 THE COURT: 21 MR. MAC MAHON: 22 THE COURT: 23 Can I just approach the witness just Well, no, Mr. Wood can do that. Okay. Give it to him like this, ask him if he recognizes that, and see what happens from there. 24 MR. MAC MAHON: Okay. Thank you. 25 (End of bench conference.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 34 of 275 PageID# 5632 Shedd - Redirect 915 1 BY MR. MAC MAHON: 2 Q. 3 that document -- oh, I'm sorry. Mr. Shedd, directing your attention to the first page of 4 Excuse me, Your Honor. Mr. Shedd, directing your attention to the first page 5 of that document, do you see what, what we're looking at here? 6 What you're looking at, excuse me. 7 A. There's a lot on the page. 8 Q. Does that refresh your recollection that you wrote a 9 report in which you were asked to, to give information as to What, what aspect of it? 10 who you believed the likely source was for the information in 11 chapter 9? 12 A. That's correct. 13 Q. Right. 14 was that in your view, the likely source were agency officials, 15 correct? 16 A. And your answer when we looked at the next page That's the page with the red tab on it, Mr. Shedd. Correct. 17 THE COURT: 18 Mr. Wood, if you would, return the document to 19 Mr. MacMahon. 20 21 All right, you can return that. MR. MAC MAHON: Your Honor. 22 Thank you. THE COURT: 23 I don't have any further questions, All right. Mr. Trump? REDIRECT EXAMINATION 24 BY MR. TRUMP: 25 Q. By agency officials, do you mean anyone who was read into Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 35 of 275 PageID# 5633 Shedd - Redirect 916 1 this program and familiar with its details? 2 A. I do. 3 Q. That would include the defendant, Mr. Sterling, correct? 4 5 MR. MAC MAHON: Your Honor, these are leading questions. 6 THE COURT: That is a leading question. You can 7 rephrase it. 8 BY MR. TRUMP: 9 Q. Would that include the defendant? 10 A. Yes. 11 Q. Now, you transitioned out of your position as the chief of 12 operations for the Counterproliferation Division in March of 13 2000, correct? 14 A. Correct. 15 Q. And at that time was when the Vienna operation was, was 16 underway? 17 A. Correct. 18 Q. Now, at the NSC, you were asked some questions about 19 Mr. Risen. 20 A. No. 21 Q. Either during your tenure at the CIA, NSC, Office of the 22 Director of National Intelligence, or the DIA, have you ever 23 had any contact with Mr. Risen? 24 A. No. 25 Q. Have you ever discussed with anyone classified information Have you ever spoken to Mr. Risen? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 36 of 275 PageID# 5634 Shedd - Recross 917 1 who was not cleared to receive that information? 2 A. I have not. 3 MR. TRUMP: That's all I have, Your Honor. 4 THE COURT: All right, any recross? 5 MR. MAC MAHON: 6 Just briefly, Your Honor. RECROSS-EXAMINATION 7 BY MR. MAC MAHON: 8 Q. 9 2006, correct? Mr. Shedd, the e-mail you looked at was dated January 3, 10 A. Right. 11 Q. And Mr. Sterling wasn't an agency official in 2006, was 12 he? 13 A. To the best of my knowledge, he was not. 14 Q. Right. 15 or case officers, correct? 16 A. And your note doesn't say former agency employees Correct. 17 MR. MAC MAHON: 18 THE COURT: 19 Mr. Shedd again? No? MR. MAC MAHON: 21 THE COURT: testimony. Thank you, Your Honor. All right, does anybody intend to call 20 22 It says agency officials, correct? Not from the defense, Your Honor. All right, sir. Then thank you for your You're free to go at this time. 23 (Witness excused.) 24 THE COURT: 25 MR. OLSHAN: All right, your next witness? Thank you, Your Honor. The government Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 37 of 275 PageID# 5635 Sheehy - Direct 1 918 calls Michael Sheehy. 2 THE COURT: All right, Mr. Sheehy. 3 MICHAEL SHEEHY, GOVERNMENT'S WITNESS, AFFIRMED 4 DIRECT EXAMINATION 5 BY MR. OLSHAN: 6 Q. Good morning, sir. 7 A. Good morning. 8 Q. If you could, please state and spell your name for the 9 record. 10 A. It's Michael William Sheehy, S-h-e-e-h-y. 11 THE COURT: Mr. Sheehy, you need to move a little 12 closer to the microphone, please. Thank you. 13 BY MR. OLSHAN: 14 Q. Mr. Sheehy, are you currently employed? 15 A. Yes. 16 Q. How are you employed? 17 A. I am employed by McBee Strategic Consulting. 18 Q. So you're a consultant currently? 19 A. I am. 20 Q. Did you have a career prior to being a consultant? 21 A. I did. 22 Q. Was that in the United States House of Representatives? 23 A. It was. 24 Q. How long did you work for the House of Representatives? 25 A. For 30 years. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 38 of 275 PageID# 5636 Sheehy - Direct 919 1 Q. What were the dates approximately of your tenure on the -- 2 at the House? 3 A. 4 to -- well, the year of 1988. 5 2009. 6 Q. So in total -- 7 A. Thirty years. 8 Q. Thirty years. September of 1977 until March of 2009, one year out, '87, 9 10 So 1977 until 1987, 1989 to Sir, if you'd like some water, we can -A. That would be great, thank you. 11 MR. OLSHAN: Thank you, Mr. Wood. 12 Q. During your time at the House, Mr. Sheehy, did you work 13 for a particular committee? 14 A. I did. 15 Q. Did you work for one committee or multiple committees? 16 A. I worked for one committee but not for 30 years. 17 Q. What was the name of the committee that you worked for? 18 A. I worked for the House Permanent Select Committee on 19 Intelligence. 20 Q. And is that, is that known as HPSCI? 21 A. Yes. 22 Q. That's H-P-S-C-I? 23 A. Correct. 24 Q. How many of your 30 years did you work for HPSCI? 25 A. From April 1 of 1990 until January 1 of 2003. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 39 of 275 PageID# 5637 Sheehy - Direct 920 1 Q. Approximately 13 years? 2 A. Yes. 3 Q. Can you tell the jury what the function of HPSCI is? 4 A. The committee conducts oversight of the activities of 5 United States intelligence agencies and also authorizes or as 6 part of that oversight authorizes the annual budgets for those 7 agencies. 8 Q. 9 oversight function? So is it fair to say that it performs -- HPSCI performs an 10 A. That's correct. 11 Q. Focused on the Intelligence Community? 12 A. Correct. 13 Q. Does that include the Central Intelligence Agency? 14 A. It does. 15 Q. Can you briefly describe the composition of HPSCI, both 16 the permanent or professional staff as well as the composition 17 of the members who sit on the committee? 18 A. 19 assigned to the committee as members are to other congressional 20 committees, and so they are continually rotating on and off the 21 committee they serve. 22 Well, the members rotate. They are not permanently When I was on HPSCI, the period of service was eight 23 years, maximum period of service. The staff had no 24 restrictions on the amount of time they could spend in service 25 to the committee. The committee was composed of a, what was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 40 of 275 PageID# 5638 Sheehy - Direct 921 1 supposed to be a bipartisan or a nonpartisan staff. In 2 reality, there were -- was a small set of staff personnel that 3 were designated to primarily assist the minority party members. 4 Q. 5 HPSCI, what was the rough size of the staff? 6 A. About 25. 7 Q. And then the number of members of the House of 8 Representatives who would rotate onto the committee, what was 9 that size? So if you can, just approximately during your 13 years on 10 A. 11 I can recall that at one point while I served on the committee, 12 the number was 13, but I'm sure there were different numbers as 13 the committee was composed in different Congresses. 14 Q. 15 or so? 16 A. 17 was more than 13, but I don't recall how much greater in size 18 it might have been. 19 Q. 20 or jobs were when you were a staffer on HPSCI? 21 A. 22 chief counsel from 1990 until 1993, January of '93. January of 23 '93, I became the staff director and chief counsel. This was 24 on the majority side. 25 Well, that number would change from Congress to Congress. During your tenure, was it always around that number, 13 I don't recall it ever being less than 13. I know that it Can you tell the jury a little bit about what your job was I started as the committee's chief counsel. I was the I did that in '93 and '94. In the election of '94, the control of the Congress Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 41 of 275 PageID# 5639 Sheehy - Direct 922 1 flipped from Democratic to Republican, so in '95, I became the 2 minority staff director and chief counsel, and I was in that 3 role until I left the committee in January of 2003. 4 Q. 5 function to meet with individuals who had concerns about the 6 proper functioning of the intelligence community? 7 A. I did that from time to time, yes. 8 Q. Let me direct your attention to the period 2000-2001. 9 you recall attending a meeting at HPSCI with a man named In your role as staff director, was it part of your 10 Jeffrey Sterling? 11 A. I recall a meeting with Mr. Sterling, yes. 12 Q. And can you identify him in court today? 13 A. Seated at the defense table. 14 THE COURT: Do All right, identity established. 15 BY MR. OLSHAN: 16 Q. 17 with Mr. Sterling occurred? 18 A. No, I do not. 19 Q. Is there any way you can place it in time within your own 20 memory? 21 A. 22 I don't know with any specificity how much before, but I know 23 it was before. 24 Q. And why do you know it was before 9/11? 25 A. The ranking member for whom I last worked on the Now, Mr. Sheehy, do you remember exactly when the meeting I know that it was before the September 11, 2001, attacks. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 42 of 275 PageID# 5640 Sheehy - Direct 923 1 committee, Congresswoman Pelosi, wanted to visit the CIA 2 operation in New York City, which we did. 3 Q. 4 that Mr. Sterling said that you can recall that helps you place 5 it before 9/11? 6 A. No. 7 Q. But you have a recollection that you believe it was 8 sometime before 9-1-2001? 9 A. Yes, I'm quite sure of that. 10 Q. Mr. Sheehy, how did the meeting come to take place with 11 Mr. Sterling? 12 A. 13 Mr. Sterling called the committee or whether he came to us from 14 another source or in another way, but I remember him in some 15 fashion making an appointment to come in and talk to us. 16 Q. Did he meet with just you, or was anyone else present? 17 A. I believe that there was one other person from the 18 minority side of the committee staff. 19 Q. Who was that? 20 A. I believe it was Wyndee Parker. 21 Q. And is "Wyndee" spelled W-y-n-d-e-e? 22 A. Yes. 23 Q. Parker? 24 A. Yes. 25 Q. During the meeting with Mr. Sterling, what do you recall Let me stop you there. Was there anything about anything I don't, I don't remember specifically whether Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 43 of 275 PageID# 5641 Sheehy - Direct 924 1 the topic being? 2 A. 3 received at his place of employment with the CIA. 4 Q. 5 matters in the intelligence community, was it appropriate to 6 bring those to HPSCI if someone wanted to? 7 A. 8 attention to their concerns, then on some occasions, they would 9 come to one or both of the congressional committees, yes. I recall that he was concerned about the treatment he had And those sorts of concerns involving employment-related If someone felt that the agency had, was not paying enough 10 Q. So that would be appropriate? 11 A. Yes. 12 Q. Can you describe for the jury what you recall Mr. Sterling 13 saying during the meeting? 14 A. 15 did not feel he was being used by the agency in a manner 16 consistent with his background and abilities; and two, that he 17 felt he was the victim of harassment by his colleagues at his 18 place of employment, at his most recent place of employment 19 with the agency. 20 Q. 21 underutilization by the CIA and the harassment that he believed 22 he was subject to at his last place of employment, did he 23 mention any other areas of concern? 24 A. Not that I recall. 25 Q. Can you recall whether he mentioned having any concerns I remember him having two primary concerns: one, that he Other than the concerns that Mr. Sterling raised about his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 44 of 275 PageID# 5642 Sheehy - Direct 925 1 about any particular classified operations that he was involved 2 in while he was at the CIA? 3 A. Not that I recall. 4 Q. If an employee of the CIA has an operational concern, is 5 HPSCI an appropriate place for that person to go if they'd like 6 to raise those concerns? 7 A. 8 being properly addressed within or by their employing agency, 9 then they have an ability to bring those concerns to the Well, again, if they feel that their concerns are not 10 congressional committees, yes. 11 Q. 12 oversight function; is that correct? 13 A. That's correct. 14 Q. And so it would be appropriate if somebody wanted to raise 15 operational concerns to bring them to HPSCI's attention? 16 A. Yes. 17 Q. Mr. Sheehy, are you familiar with a specific classified 18 operation that we've been referring to in this trial as 19 Classified Program No. 1? 20 A. Yes. 21 Q. Is that something you became familiar with during your 22 time on HPSCI? 23 A. It is. 24 Q. As an employee or a staffer on HPSCI, did you hold a 25 security clearance? And that's because the, because HPSCI performs an Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 45 of 275 PageID# 5643 Sheehy - Direct 926 1 A. I did. 2 Q. And were you trained in the proper handling of classified 3 information? 4 A. I was. 5 Q. How important was that in your day-to-day job, or how 6 important was that to your job at HPSCI? 7 A. That you treated classified information properly? 8 Q. Yes. 9 A. You didn't have a job unless you did that. 10 Q. Do you remember specifically whether Mr. Sterling raised 11 any concerns about that classified program? 12 A. I do not recall any such concerns being raised. 13 Q. Would you remember if he had raised concerns about that 14 specific program? 15 A. 16 reason, I believe I would remember, but, of course, it's 17 possible that I would not. 18 Q. Did you take Mr. Sterling's concerns seriously? 19 A. We did. 20 Q. And did you try to follow up on them? 21 A. We did. 22 Q. And did that involve meetings or communications with the 23 CIA about their employment practices? 24 A. 25 Mr. Sterling's concerns were being addressed. Well, the program was extremely sensitive, and for that Well, it involved communications with the CIA about how Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 46 of 275 PageID# 5644 Sheehy - Cross 927 1 Q. And so you followed up? 2 A. We did. 3 Q. Can you recall whether you ever met Mr. Sterling again? 4 A. I don't recall meeting Mr. Sterling again. 5 seen Mr. Sterling in the committee spaces again. 6 recall another meeting with him. 7 Q. 8 No. 1, as we're calling it, to anyone whom you believed did not 9 have the appropriate clearances? I may have I don't Have you ever disclosed any aspect of Classified Program 10 A. No, I have not. 11 Q. Even as you sit here today, are you reluctant to discuss 12 it? 13 A. I am. 14 MR. OLSHAN: 15 THE COURT: 16 MR. OLSHAN: 17 THE COURT: 18 MS. HAESSLY: 19 One moment, Your Honor? Yes, sir. That's all I have. All right. Cross-examination? Thank you, Your Honor. CROSS-EXAMINATION 20 BY MS. HAESSLY: 21 Q. 22 one of the attorneys for Mr. Sterling. 23 Good morning, Mr. Sheehy. My name is Mia Haessly, and I'm You testified that it was appropriate for 24 Mr. Sterling to come to you with his concerns, correct? 25 A. Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 47 of 275 PageID# 5645 Stone - Direct 928 1 Q. And while he spoke to you then, did he discuss with you 2 anything that you were not authorized to hear? 3 A. I don't recall that occurring, no. 4 MS. HAESSLY: 5 No further questions, thank you. 6 THE COURT: 7 MR. OLSHAN: 8 THE COURT: 9 Okay. Any redirect? No, Your Honor. All right, Mr. Sheehy, thank you for your attendance, but you're free to go at this time. 10 THE WITNESS: 11 MR. OLSHAN: 12 Thank you. Just to be clear, Your Honor, the witness is released, correct? 13 THE COURT: 14 THE WITNESS: Yes, you are released. Thank you. 15 (Witness excused.) 16 THE COURT: 17 MR. OLSHAN: 18 One moment, Your Honor. Your next witness? Thank you, Your Honor. The government calls Donald Stone. 19 THE COURT: All right. 20 DONALD C. STONE, GOVERNMENT'S WITNESS, AFFIRMED 21 DIRECT EXAMINATION 22 BY MR. OLSHAN: 23 Q. Good morning, sir. 24 A. Good morning. 25 Q. If you could, please state and spell your name for the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 48 of 275 PageID# 5646 Stone - Direct 929 1 record. 2 A. Donald C. Stone, S-t-o-n-e. 3 Q. Mr. Stone, are you currently employed? 4 A. Yes, I am. 5 Q. And in what, what industry are you employed currently? 6 A. I'm a consultant with Booz Allen & Hamilton. 7 Q. You're a consultant? 8 A. Yes. 9 Q. And do you work for a specific client of Booz Allen 10 Hamilton? 11 A. Yes, I do. 12 Q. How long have you worked in that capacity? 13 A. Approximately two-and-a-half years at the agency. 14 Q. Just remember, Mr. Stone, to lean forward into that 15 microphone so the jury can hear you. 16 A. It's not very stable. 17 Q. Thank you. 18 My client is the Central Intelligence Agency. Okay. Mr. Stone, can you please describe your educational 19 background? 20 A. 21 Finance from Loyola College in Baltimore. 22 Q. 23 CIA. 24 A. Yes, I did, from 1984 to 1995. 25 Q. So approximately 11 years? I have a B.A. in Business Administration and an M.B.A. in You mentioned that you're currently a contractor to the Did you previously work at the CIA? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 49 of 275 PageID# 5647 Stone - Direct 930 1 A. Yes. 2 Q. During those 11 years from 1984 to 1995, what did you do 3 at the CIA? 4 A. I was an auditor on the Inspector General's staff. 5 Q. Break that down a little bit. 6 that a component of the CIA? 7 A. 8 activities. 9 and an investigation staff. Yes. The Inspector General, is That's kind of the internal watchdog over agency It's made up of an audit staff, inspection staff, I was an auditor. 10 Q. And so what, what is the purpose or function of the IG at 11 CIA? 12 A. 13 waste, and abuse, and ensuring that the agency's resources are 14 used in an effective and efficient manner. 15 Q. 16 how did you help determine whether there was fraud, waste, or 17 abuse at the CIA in that job? 18 A. 19 audits, so you were counting the cash, inventorying the 20 property, just generally making sure the resources were being 21 acquired and expensed and used in accordance with the rules and 22 regulations. 23 shift to more economy efficiency audits, where we were actually 24 getting into the effectiveness and execution of the operational 25 activities of the agency. In a nutshell, the IG is in charge of finding fraud, As an auditor with the IG for those 11 years, did you -- Well, when I started, it was mostly economy and efficiency As the function evolved over time, there was a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 50 of 275 PageID# 5648 Stone - Direct 931 1 Q. So in other words, was it your job to make sure that the 2 CIA wasn't wasting its money? 3 A. Yes. 4 Q. You performed that role for approximately 11 years? 5 A. Correct. 6 Q. During that time, did you hold a security clearance? 7 A. Yes, I did the entire time. 8 Q. And as the need would arise with respect to specific 9 projects, would you be granted access to specific classified 10 programs? 11 A. Yes. 12 Q. Did you receive training on how to properly handle 13 classified information? 14 A. 15 and regulations for handling of classified information. 16 Q. 17 would you be read out of a specific program if you had been 18 read in? 19 A. 20 you would be read in to do the audit and then be read out when 21 the audit was completed. 22 Q. Where did you go work in 1995? 23 A. I went to the Senate Intelligence Committee on Capitol 24 Hill. 25 Q. Yes. There was an annual requirement to go over the rules Once a project would end and you would finish your audit, There were certain programs of that name where, in fact, What's the formal name of that committee? Is it the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 51 of 275 PageID# 5649 Stone - Direct 932 1 Senate Select Committee on Intelligence? 2 A. 3 SSCI. 4 Q. And is that sometimes referred to as SSCI, S-S-C-I? 5 A. Yes, it is. 6 Q. When you went there in 1995, what was your role on the 7 Intelligence Committee? 8 A. 9 staff of the committee. Sorry, yes, the Senate Select Committee on Intelligence, I was hired to be a member of the audit and evaluation 10 Q. Were you hired to perform a similar function to what you 11 had done within the CIA? 12 A. 13 entire intelligence community rather than just the one agency. 14 Q. 15 Intelligence Committee's function is? 16 A. 17 intelligence community, so they're in charge of overseeing all 18 of the activities of the various agencies: 19 etc., etc. 20 Q. 21 Intelligence Committee? 22 A. Yes, very much so. 23 Q. Other than at SSCI, did you ever work anywhere else on 24 Capitol Hill? 25 A. Yes. It was a very similar function except it covered the Can you briefly describe for the jury what the Senate The SSCI is the Senate's oversight mechanism for the CIA, NSA, NRO, DIA, Does it perform a similar function to the House Yes, I did. I worked for two years on the House Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 52 of 275 PageID# 5650 Stone - Direct 933 1 Intelligence Committee, the House Permanent Select Committee on 2 Intelligence. 3 Q. So you worked for SSCI and HPSCI? 4 A. Yes. 5 Q. Can you tell the jury the years that you worked for, for 6 both? 7 A. 8 Intelligence Committee. 9 I was on the House Intelligence Committee, and from 2007 So from 1995 until early 2005, I was on the Senate For the rest of 2005 and all of 2006, 10 through 2010, I was back on the Senate Intelligence Committee. 11 Q. And subsequent to 2010, you've been in the private sector? 12 A. That is correct. 13 Q. Focusing in on that first stint at SSCI, from 1995 to 14 2005, in addition to your audit function on the committee, did 15 you have any other function? 16 A. 17 assigned was to deal with whistleblowers or former disgruntled 18 employees or others who had made complaints about the 19 Intelligence Community to a member of the committee or a member 20 of Congress, and I would follow up on those as, as appropriate. 21 Q. 22 concerns about the intelligence community? 23 A. 24 the whistleblower function. 25 an ad hoc basis, but again, if it involved the intelligence Yes. Pretty much from when I started, other duties as And was it part of SSCI's function to hear people who had Oh, most, most definitely. We definitely had a role in The other complaints were more of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 53 of 275 PageID# 5651 Stone - Direct 934 1 community in something we thought was a significant part or 2 worthy of further follow-up, we would follow up on it as part 3 of our oversight duties. 4 Q. Do you know someone by the name of Jeffrey Sterling? 5 A. I met with him once. 6 Q. Do you see him in the courtroom today? 7 A. I believe that to be the gentleman right there 8 (indicating). 9 THE COURT: All right, the record reflects the 10 witness identified the defendant. 11 BY MR. OLSHAN: 12 Q. 13 approximately March of 2003? 14 A. Yes, it was. 15 Q. And at the time, what was your job at SSCI? 16 A. I was at that point head of the audit and evaluation 17 staff. 18 Q. 19 Mr. Sterling in March of 2003? 20 A. 21 member of the staff. 22 be taking part in the meeting. 23 Q. 24 meeting was going to be prior to going into the meeting? 25 A. You just testified that you met him once. Was that in Can you tell the jury how it is that you came to meet with The meeting was organized by the front office and another At some point, I was advised that I would What was your understanding of what the focus of the I was aware that there were personnel issues that we would Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 54 of 275 PageID# 5652 Stone - Direct 935 1 not be discussing and there was an operational issue that we 2 would be discussing. 3 Q. 4 accompanied by anyone? 5 A. He was accompanied by his lawyer at the time, Mr. Zaid. 6 Q. Mark Zaid? 7 A. That is -- yeah. 8 Q. Z-a-i-d, is that correct? 9 A. Correct. 10 Q. And were you -- did you meet with Mr. Sterling and 11 Mr. Zaid by yourself, or was someone else present from the SSCI 12 staff? 13 A. Another staffer and I met with him in my office. 14 Q. Who was that other staffer? 15 A. Her name is Vicki Divoll. 16 Q. With the assistance of Mr. Wood, if you could take a look 17 at Exhibit 100, Government Exhibit 100? Did Mr. Sterling appear by himself that day, or was he 18 THE COURT: 19 MR. POLLACK: 20 THE COURT: 21 (Government's Exhibit No. 100 was received in 22 Is there any objection to 100? No, Your Honor. All right, it's in. evidence.) 23 MR. OLSHAN: 24 THE COURT: 25 MR. OLSHAN: May we publish that, Your Honor? Yes, it's in evidence. Thank you, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 55 of 275 PageID# 5653 Stone - Direct 936 1 Q. You've got two options, Mr. Stone. There's the binder, 2 and there's also a picture of it on the screen here to your 3 left, whichever is easier for you. 4 A. 5 Intelligence Committee. 6 Q. 7 keep a log on people who came in? 8 A. Yes, there was a daily log that was kept. 9 Q. And does this appear to be a page from that log? 10 A. Yes, it does. 11 Q. If we could zoom in on the two entries that are not 12 redacted, do those appear to be the names J. Sterling and 13 M. Zaid? 14 A. 15 above that. 16 they were together. 17 Q. 18 page is March 5, 2003? 19 A. That is correct. 20 Q. What was Ms. Divoll's role on the committee? 21 A. She was one of the counsel on the committee, a lawyer. 22 Q. Were you a lawyer? 23 A. No, I was an auditor. 24 Q. You testified your understanding going into the meeting 25 was that it was going to be about operational concerns; is that What is that document? That looks like it's a visitors log from the Senate And did -- in your experience at SSCI, did the committee Definitely M. Zaid and that could certainly be a Sterling They came in at the same time, so it looks like And if we could zoom back out, the date on the top of that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 56 of 275 PageID# 5654 Stone - Direct 937 1 correct? 2 A. Yes. 3 Q. Did you -- did Mr. Zaid participate in the sort of 4 substantive discussion with Mr. Sterling? 5 A. 6 the guard, the Capitol policeman, we have a reception area, and 7 then there's a door into the SCIF spaces, meaning it's free to 8 talk about classified information once you go beyond that door. 9 Mr. Zaid did not have the clearances required to discuss the No, he did not. The committee has -- after you get past 10 operational activities we were going to discuss with 11 Mr. Sterling, and so he remained in the reception area during 12 the time of our conversation. 13 Q. 14 you, Ms. Divoll, and Mr. Sterling? 15 A. That is correct. 16 Q. Why was the conversation limited to just operational 17 concerns and nothing about personnel issues? 18 A. 19 agency was ongoing. 20 the committee did not get involved in ongoing cases, whether it 21 involved litigation or internal deliberations, until they were 22 done. 23 Q. So the people who attended the actual conversation were It was my understanding that his litigation against the As a general matter, the CIA -- I mean, If you could take a look at Exhibit 101? 24 THE COURT: 25 MR. POLLACK: Any objection? No objection, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 57 of 275 PageID# 5655 Stone - Direct 938 1 THE COURT: All right, it's in. 2 (Government's Exhibit No. 101 was received in 3 evidence.) 4 BY MR. OLSHAN: 5 Q. 6 take notes? 7 A. Yes, I did. 8 Q. And as an auditor for a number of years leading up to that 9 point, how important was note taking to you? Mr. Stone, during the meeting with Mr. Sterling, did you 10 A. Oh, that was a significant part of my function. 11 have interviews, numerous interviews on any kind of audit. 12 would take notes on those in person. 13 my written notes create a document on the computer. 14 Q. Did you take notes during your meeting with Mr. Sterling? 15 A. Yes, I did. 16 Q. This document that's at Exhibit 101, did you have a hand 17 in generating this, this memo? 18 A. 19 meeting. 20 Q. Were you the primary author of this document? 21 A. Yes, I was. 22 Q. Did Ms. Divoll have a role in reviewing it before it was 23 finalized? 24 A. 25 coordinated this memo after I generated it with her before I Yes, I did. We would I I would go back and from This is the summation of my notes from the I'm positive because I put her name up there that I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 58 of 275 PageID# 5656 Stone - Direct 939 1 finalized it. 2 Q. And this memo was based off of the notes that you took? 3 A. Yes, it was. 4 MR OLSHAN: If you could zoom in, Mr. Francisco, on 5 the first two paragraphs? 6 Q. 7 the setup of the meeting? 8 A. Yes, it is. 9 Q. And it indicates that Mr. Zaid had contacted Ms. Divoll Mr. Stone, does the first paragraph essentially summarize 10 and that precipitated the meeting; is that correct? 11 A. That is correct. 12 Q. The second paragraph makes reference to Mr. Sterling's 13 ongoing litigation; is that correct? 14 A. Yes, it is. 15 Q. And it makes note that Mr. Zaid was not permitted to take, 16 take part in the substantive conversation, correct? 17 A. That is correct. 18 Q. If you could, read the third paragraph, which carries over 19 to the next page. 20 A. 21 least two overseas assignments. 22 CIA's New York office, where he was involved in a sensitive 23 operation. 24 with faulty plans for a Russian-based nuclear fire set. 25 Although the plans had been modified by the National Okay. "Mr. Sterling joined the CIA in 1993, and had at In 1999, he was assigned to The operation entailed a CIA asset providing Iran Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 59 of 275 PageID# 5657 Stone - Direct 940 1 Laboratories, Mr. Sterling feared they were insufficiently 2 flawed to prevent a Russian scientist hired by the Iranians 3 from identifying and correcting the mistakes. 4 based on the fact that the CIA asset recognized the plan's 5 flaws almost immediately after being shown them. 6 preferred to string the operation out by giving pieces of the 7 plan out over time. 8 over to the Iranians without any means for further follow-up. 9 However, CIA supposedly deemed the operation a success. His concern was He would have In the end, the entire plan was turned 10 Mr. Sterling fears the CIA gave the Iranians too much 11 information that they can either use themselves or sell to 12 someone else." 13 Q. 14 to what Mr. Sterling said that day? 15 A. Yes, it does. 16 Q. So you recall that Mr. Sterling mentioned a Russian 17 nuclear fire set? 18 A. Yes. 19 Q. That had been modified by National Laboratories? 20 A. Correct. 21 Q. Did he mention the country Iran? 22 A. Correct. 23 Q. And he mentioned that the fire set plans had been 24 insufficiently -- or the flaws in them had been insufficient 25 to, to fool the Russian asset who first examined them -- or Does that portion that you just read match your memory as Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 60 of 275 PageID# 5658 Stone - Direct 941 1 when he first examined them? 2 A. Yes. 3 Q. Other than what's in this memo, do you recall whether 4 Mr. Sterling said anything about how these plans were actually 5 physically delivered to the Iranians? 6 A. I do not recall specifics on how they were delivered. 7 Q. Do you remember anything to do with a fence? 8 A. I believe at some point, my description of the event 9 became they did the equivalent of throwing them over the fence. 10 Q. You don't recall whether he actually said that? 11 A. I do not recall if he said that. 12 memorandum, so it's not something I quoted. 13 Q. 14 memorandum -- actually, I apologize, Mr. Francisco, can you go 15 to the first page, at the top again? It's not in my Now, if we could go to the second page of the 16 The date on this memo is April 25, 2003? 17 A. Correct. 18 Q. And it reflects what happened at the March 5, 2003, 19 meeting? 20 A. Yes. 21 Q. And you maintained your notes during the interim? 22 A. Yes, absolutely. 23 Q. For when you finally prepared the, the memo, right? 24 A. Correct. 25 Q. Now, if we could go to that second page? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 61 of 275 PageID# 5659 Stone - Direct 1 942 Did you ask Mr. Sterling why he was bringing this 2 information to the attention of the committee now? 3 A. Yes, I did. 4 Q. And why would -- why did you ask that question? 5 A. It's a normal question to ask because there was a 6 significant amount of time between the actions he was 7 describing and the time he had brought them to our attention. 8 The normal course of action, we wanted to know what prompted 9 him to come to the committee, so it would also influence how we 10 would follow up. 11 Q. 12 second page? 13 A. Yes, it is. 14 Q. And why did he say he was just bringing this to the 15 committee's attention now? 16 A. 17 prompted him to remember the issue or want to bring it to our 18 attention for further action. 19 Q. 20 information as to why -- whether the CIA or the lab did not 21 take adequate precautions, whether they had taken inadequate 22 precautions? 23 A. 24 background. 25 the level of detail in the plans or what had made them faulty And is that reflected in that first full paragraph on the He indicated that current events going on at the time had Do you recall whether he was able to provide any No. Did he tell you anything that justified that? I did ask whether or not he had a technical He did not. He did not have any real specifics on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 62 of 275 PageID# 5660 Stone - Direct 943 1 or not faulty enough. 2 Q. 3 the Inspector General? 4 A. 5 question. 6 Q. 7 operational concerns with the Inspector General? 8 A. 9 whistleblower case or any kind of case involving issues at the Did you ask him whether he had raised his concerns with Yes, I did. That was one of my normal questions, lines of Would it have been appropriate for him to raise Yes, it was. The normal course of action for a 10 agency would normal involve going to the Inspector General to 11 kind of vet the case, and then it would proceed to us if they 12 so desired. 13 Q. 14 Inspector General? 15 A. 16 a good time dealing with him as part of his personnel issues, 17 and he didn't want to bring this to their attention. 18 Q. 19 And why did Mr. Sterling say he had not gone to the He indicated that he had not had a pleasant -- hadn't had After the -- let me back up. Going back to the first page of Exhibit 101, where it 20 references in that last paragraph, "The operation entailed a 21 CIA asset providing Iran with faulty plans for a Russian-based 22 nuclear fire set," and then it continues that the flaws were 23 insufficiently -- excuse me, he feared the flaws were 24 insufficiently -- excuse me, they were insufficiently flawed to 25 prevent a Russian scientist hired by the Iranians from Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 63 of 275 PageID# 5661 Stone - Direct 944 1 identifying and correcting the mistakes, do you recall whether 2 Mr. Sterling identified the asset who was going to deliver 3 these plans to the Iranians as Russian? 4 A. He did not. 5 Q. Do you recall whether Mr. Sterling mentioned anything to 6 do with the specific technical details of the fire set? 7 A. No, he did not. 8 Q. For example, the model number? 9 A. No, he did not. 10 Q. Is that the type of detail you would have written in your 11 notes? 12 A. 13 where, why, and how. 14 that category. 15 Q. What about details of a Russian asset's compensation? 16 A. Again, as an auditor, that was a number. 17 something I would have written down in my notes. 18 Q. 19 specific meetings, where specific meetings occurred with the 20 scientist who was to deliver the flaws? 21 A. I would have been aware. 22 Q. And do you recall whether he mentioned anything to do with 23 a meeting in San Francisco? 24 A. No, he did not. 25 Q. Do you recall specifically the name of the country to Yes. As auditors, we're looking for who, what, when, That would have definitely fallen within That was Would you have written it down if he had mentioned any Yes, I would have. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 64 of 275 PageID# 5662 Stone - Direct 945 1 which the plans were going to be delivered? 2 A. I stated in the memo it was Iran. 3 Q. Not the ultimate recipient. 4 A. Oh, the location? 5 those were to be delivered. 6 Q. Okay. 7 A. I believe so, yes. 8 Q. Did anything occur on Mr. Sterling's way out of the 9 committee space? Where these plans were given? No, I do not recall him stating where Would you have written that down? 10 A. 11 office, we walked him back out to the reception area, where we 12 were joined by Mr. Zaid, his attorney, obviously, exchanging 13 pleasantries. 14 planned to do with the information we had been provided. 15 were noncommittal on what we were going to do because 16 obviously, at that time, we had no idea what we would do to 17 pursue it, and then one of them, I don't recall exactly who, 18 made reference to, well, something has to be done soon or we're 19 going to do something else. 20 Q. And do you know what they meant by that? 21 A. I don't know exactly what they meant. 22 mean they were going to the press. 23 So after Vicki and I were done discussing the case in my I recall at some point them asking what we MR. POLLACK: We Normally that would Your Honor, I'm going to move to strike 24 the last answer if he has no basis for it, it's not based on 25 any conversation he had with either Mr. Zaid or Mr. Sterling. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 65 of 275 PageID# 5663 Stone - Direct 1 THE COURT: 2 THE WITNESS: 946 What's your basis for that? I dealt with a number of, again, 3 complaints, whistleblower-type cases, and normally if they -- 4 the committee is one of the last resorts, and if that wasn't 5 going to work, their only resort after that was to try to get 6 some publicity in the press. 7 THE COURT: 8 BY MR. OLSHAN: 9 Q. I'm going to allow it. Overruled. Let me step back for one second, Mr. Stone. Do you know 10 what a cryptonym is? 11 A. Yes, I do. 12 Q. Is that a fancy way of saying a code name? 13 A. Yes, it is. 14 Q. And during your time with the CIA, either as -- in your 15 audit capacity or when you were on the Hill, did you ever see 16 CIA cryptonyms? 17 A. 18 basis as an auditor within the CIA. 19 cryptonyms was very rare. 20 things that were not shared with us generally. 21 Q. 22 you have made note of it? 23 A. I believe I would, yes. 24 Q. Can you recall whether he did that? 25 A. I do not recall any mention of cryptonyms. I would have definitely seen them regularly, on a regular On the Hill, access to Those were internal CIA names for If Mr. Sterling had mentioned a specific cryptonym, would Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 66 of 275 PageID# 5664 Stone - Direct 947 1 Q. And do you recall whether he discussed anything to do with 2 asset's employment history prior to becoming a CIA asset? 3 A. I do not recall that at all. 4 Q. Did Mr. Sterling give you any documents during the 5 meeting? 6 A. No, he did not. 7 Q. You testified that this meeting took place in a secure 8 location within the committee space. 9 A. Correct. 10 Q. Was it your understanding during the conversation with 11 Mr. Sterling that you were discussing classified information? 12 A. Yes. 13 Q. And did that influence the way that you dealt with this 14 topic after the meeting with Mr. Sterling as far as who you 15 would talk to about it? 16 A. 17 information within the committee spaces. 18 Q. And what was that? 19 A. I mean, it was a SCIF'd area, which we -- it's an area 20 where you can discuss classified information, Sensitive 21 Compartmented Information Facility. 22 because you know something doesn't mean you go around telling 23 everybody on the committee. 24 in a folder in my work area. 25 meeting with the staff directors and then probably didn't Is that correct? I handled it the way I would normally handle classified Still within that, just So I would have retained my notes I'm sure I talked about the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 67 of 275 PageID# 5665 Stone - Direct 948 1 discuss it at all until I created this memo. 2 Q. 3 nuclear operation, correct? 4 A. Correct. 5 Q. Did you take that seriously? 6 A. Oh, absolutely. 7 Q. And so what did you do after you had the meeting with 8 Mr. Sterling where he expressed very serious concerns about 9 this operation? Mr. Sterling's complaints involved a nuclear, it was a 10 A. It's my recollection that I -- after the meeting, we 11 escorted them out. 12 chance with the staff director, I discussed the information 13 that was discussed with Mr. Sterling and then went on about my 14 regular duties. 15 Q. 16 knowledge about it or who could check into it? 17 A. Correct. 18 Q. And was one of those Lorenzo Goco? 19 A. Yes, it was. 20 Q. Can you tell the jury who Mr. Goco was? 21 A. Mr. Goco was the staffer responsible for the oversight of 22 these types of programs. 23 the sensitivity of the operations, and I knew that he would be 24 in a position as part of our normal oversight because we got 25 regular updates on the status of these operations, he would be At some point that day, next time I'd get a So you raised this issue to people who might have more It was a separate account because of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 68 of 275 PageID# 5666 Stone - Direct 949 1 in a position to check the accuracy of the information provided 2 by Mr. Sterling. 3 MR. OLSHAN: If we could go back to the memo on 101, 4 Mr. Francisco, the second page? 5 paragraph. 6 Q. 7 Mr. Goco to take in order to check into Mr. Sterling's 8 concerns? 9 A. Zoom in on the third Thank you. Does this paragraph reflect the steps you took or asked You're talking about the paragraph beginning with "The 10 operation described"? 11 Q. Yes, sir. 12 A. Yes, it is. 13 Q. Did you ever hear back from Mr. Goco about whether he had 14 looked into Mr. Sterling's concerns? 15 A. Yes, I did. 16 Q. And what was your understanding of the take-away from his 17 efforts? 18 A. 19 officials at the agency about the information provided by 20 Mr. Sterling. 21 the proper fashion, and I took from that that there was no need 22 for follow-up on my part. 23 Q. 24 drafted mentions in the first couple sentences further contact 25 for Mr. Sterling. My understanding was that he had asked the appropriate He had been assured that it had been executed in The last paragraph of the memo that you and Ms. Divoll For example, it says, "Mr. Sterling has Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 69 of 275 PageID# 5667 Stone - Direct 950 1 e-mailed the committee highlighting press articles involving 2 Iran nuclear interests. 3 was not returned." 4 He has also left a phone message that Can you recall any of those communications with 5 Mr. Sterling? 6 A. 7 Mr. Sterling. 8 Vicki. 9 Q. I do not recall the communications to me from I believe those to be entries coordinated with But you have no recollection as to any further follow-up 10 directly with Mr. Sterling or his lawyer at the time? 11 A. 12 Mr. Zaid involving other cases and other issues in the 13 community but -- 14 Q. But not related to -- 15 A. -- I do not recall them being related to this case, no. 16 Q. Did you ever receive a call from a journalist named James 17 Risen? 18 A. Yes, I did. 19 Q. And was that in this time frame? 20 A. Yes, it was. 21 Q. And can you tell the jury about that contact from 22 Mr. Risen, what you remember? 23 A. 24 to talk to the press. 25 the only one allowed to talk to the press. Not with Mr. Sterling. Okay. There were subsequent e-mails from As background, staffers were generally not allowed On the committee, the staff director was So I was at my Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 70 of 275 PageID# 5668 Stone - Direct 951 1 desk, and the phone rang, and the person introduced himself as 2 Mr. Risen. 3 authors involving the intelligence community, I immediately 4 advised him I was not allowed to talk to the press and ended 5 the conversation. 6 Q. So do you remember, did he tell you why he was calling? 7 A. I didn't give him the opportunity to tell me. 8 Q. In the bottom of the memo that you drafted, second-to-last 9 sentence says, "The only other issue of note is that James 10 Risen of The New York Times attempted to contact Mr. Stone 11 directly several weeks ago." 12 With him being one of the well-known newspaper Do you recall writing that? 13 A. Yes, I do. 14 Q. You inserted this language? 15 A. Yes, I did. 16 Q. The last sentence says, "He was not asked the topic of 17 inquiry and was told that any staff communication must come 18 from the staff directors." 19 A. Correct. 20 Q. Mr. Stone, can you recall why you put reference to 21 Mr. Risen's phone call to you in this memo about Mr. Sterling? 22 A. 23 because I either, A, after the phone call went up to the staff 24 director to advise him I had been called by Mr. Risen, because 25 it was fairly rare for a reporter to get through to the I do not recall the exact details. I assume it was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 71 of 275 PageID# 5669 Stone - Direct 952 1 individual staffers. 2 only had the line for the committee. 3 We all had direct lines, but most people So again, to make sure I didn't get in trouble for 4 talking to the press, I would have advised him. 5 point between when the meeting was held and the memo was 6 written, I'm sure I spoke to the staff director about this 7 case, and something was said that led me to believe there was 8 a -- Mr. Risen was somehow involved, and so that was why I 9 included that in this memo, to make it clear that I had been in 10 Again, at some touch with him, but I had not spoken to him with any details. 11 THE COURT: And, I'm sorry, I wasn't clear on your 12 answer. Did this phone call occur, if you can recall, before 13 or after your meeting in the SCIF with Mr. Sterling? 14 THE WITNESS: 15 THE COURT: 16 THE WITNESS: 17 It would have been after the meeting. And how do you know that? Because if it had been before the meeting, I would have noted that it was before the meeting. 18 THE COURT: All right, thank you. 19 BY MR. OLSHAN: 20 Q. 21 March 5, 2003, and when this memo was finalized on April 25, 22 you received a call from Mr. Risen? 23 A. Correct. 24 Q. Did you ever have any subsequent contact with Mr. Risen? 25 A. Not to my knowledge. So sometime between the meeting with Mr. Sterling on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 72 of 275 PageID# 5670 Stone - Direct 953 1 Q. Have you ever discussed this specific classified program 2 with anyone whom you believed did not have the appropriate 3 clearances? 4 A. No, I have not. 5 Q. Mr. Stone, are you familiar with what's called a cable? 6 A. Yes, I am. 7 Q. And is that a document or documents that are generated in 8 the normal course of the CIA's business? 9 A. Yes. Generally, that's the formal documentation of the 10 activities of the agency. 11 Q. 12 employee or now as a contractor? 13 A. 14 because generally the committee, like cryptonyms, was not 15 provided access to specific agency cables, but before and after 16 a direct employee as the CIA, yes, regular basis. 17 Q. But not while you were on the Hill? 18 A. No. 19 basis. 20 Q. 21 space? 22 A. And you've seen those over your many years either as a CIA Yes, definitely in those cases. Less so on the committee, If it was exposed, it was always on a read-and-return It wasn't something we retained. So you didn't just keep a file of CIA cables in committee No, absolutely not. 23 MR. OLSHAN: 24 THE COURT: 25 MR. OLSHAN: May I have a moment, Your Honor? Yes, sir. That's all I have. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 73 of 275 PageID# 5671 Stone - Direct 1 THE COURT: 954 All right. Well, this is good timing. 2 think we'll take our mid-morning break. 3 until, we are normally doing 20 minutes in the morning, so 25 4 after, all right, folks? 5 6 7 8 9 10 I want to stay in session. I'll give the jury I have a couple of housekeeping matters. And you may step down, sir, and we'll see you back here at 25 after. THE WITNESS: THE COURT: Thank you, ma'am. All right. 11 (Witness stood down.) 12 (Jury out.) 13 THE COURT: I just want to take advantage of these 14 breaks to clear up various small housekeeping matters. 15 week when we played the video deposition of Mr. Merlin, the 16 government indicated that they believed there were mistakes in 17 the transcript, and they asked the Court to correct them. 18 Last I said yes at the time because my hearing also here 19 in the court supported the government's view. 20 over the audiotape much more carefully with my court reporter, 21 and, in fact, the transcript as originally done is correct. 22 Whether it was a misstatement by the witness or not, I don't 23 know, but we don't change transcripts. 24 25 I However, I went And so for the record, page 83, line 10, will continue to reflect that the witness said, "I did see him," Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 74 of 275 PageID# 5672 Stone - Direct 955 1 not, "I didn't see him." 2 with my court reporter. 3 That's what I clearly heard along And then on page 85, line 3, where the answer 4 was, "Again, all the commands were in sealed" blah, blah, blah, 5 the government wanted the word "plans." 6 carefully; there's no question it was "commands." 7 8 So the transcript is remaining as it was originally done. I just wanted you to know that for the record. 9 10 I listened very All right, any other brief housekeeping matters before we proceed for the break? 11 (No response.) 12 THE COURT: Now, I only got five witnesses listed 13 this morning. 14 call for today at the rate we're going. 15 going to rest today, or do you think it will be tomorrow 16 morning? 17 I'm sure the government has more than that on MR. OLSHAN: It's hard to say, Your Honor. 18 be close. 19 early tomorrow morning. 20 21 24 25 It will It could be at the very end of the day or sometime THE COURT: All right. So defense is beginning to line up any witnesses you-all might have, correct? 22 23 Is the government MR. MAC MAHON: Yes, Your Honor. We're doing the best -MR. POLLACK: Yeah, this is the first that we've heard that the government might rest today, so we'll scramble Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 75 of 275 PageID# 5673 Stone - Cross 956 1 and try to make sure we've got somebody first thing tomorrow 2 morning. 3 4 THE COURT: Wednesday. 5 6 All right. And then tomorrow is Do you expect you will use all of tomorrow? MR. POLLACK: Probably not. I don't think so, Your Honor. 7 THE COURT: All right, if there's any plan for a 8 rebuttal case, then the government needs to have any potential 9 rebuttal witnesses on call -- on deck for Wednesday. 10 All right, very good. 11 We'll recess court then. (Recess from 11:10 a.m., until 11:25 a.m.) 12 (Defendant and Jury present.) 13 THE COURT: 14 MR. POLLACK: 15 All right, Mr. Pollack? Thank you, Your Honor. CROSS-EXAMINATION 16 BY MR. POLLACK: 17 Q. 18 one of the lawyers for Mr. Sterling. 19 A. Good morning. 20 Q. Now, you met with Mr. Sterling on only one occasion that 21 you can recall. 22 A. Yes. 23 Q. And at that time, you -- also present was another SSCI 24 staff member by the name of Vicki Divoll, correct? 25 A. Good morning, Mr. Stone. My name is Barry Pollack. I'm That was on March 5, 2003, correct? Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 76 of 275 PageID# 5674 Stone - Cross 957 1 Q. And at that time, you had known Ms. Divoll for only about 2 a year; is that correct? 3 A. 4 joined the committee until then. 5 Q. 6 friend in any way? 7 A. Not outside the committee, no. 8 Q. And on the meeting on the 5th -- at the meeting on the 9 5th, you took some notes? I don't recall exactly how long. From whenever she'd She's not somebody you socialized with, was not a personal 10 A. Yes, I did. 11 Q. And you tried to take careful and accurate notes? 12 A. Yes. 13 Q. But you weren't doing a transcript of that interview, 14 correct? 15 A. No, there was no recorded transcript of the -- 16 Q. There was no court reporter, correct? 17 A. Correct. 18 Q. There was no audio recording, correct? 19 A. Correct. 20 Q. And you weren't getting down every word that was said, 21 correct? 22 A. Correct. 23 Q. Okay. 24 that you took? 25 A. And what was the last time that you saw those notes I do not recall. I would have presumed they were either Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 77 of 275 PageID# 5675 Stone - Cross 958 1 destroyed sometime before I left the committee or when I left 2 the committee. 3 Q. And when did you leave the committee? 4 A. In, I believe, January of 2005. 5 Q. So you haven't seen those notes since at least January of 6 2005, correct? 7 A. 8 the memorandum created from those notes. 9 Q. I've not seen my handwritten notes. I understand. I've seen copies of We'll talk about the memorandum in a 10 moment -- 11 A. Okay. 12 Q. -- but right now, I'm just asking you about your 13 handwritten notes. 14 You haven't seen those since at least January of '05, 15 correct? 16 A. Correct. 17 Q. In fact, you may not have seen them since the time that 18 you prepared your memo from those notes, correct? 19 A. 20 that folder being destroyed after I'd written or created the 21 memo, but you're right, it's been a significant amount of time. 22 Q. 23 in that memo every single thing that was in your handwritten 24 notes? 25 A. I vaguely recall them being in a folder at some point and And when you created the memo, were you trying to capture Generally, I was trying to capture the totality of all the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 78 of 275 PageID# 5676 Stone - Cross 959 1 information captured in my notes, yes. 2 Q. 3 Mr. Olshan asked you about the first paragraph of this memo. 4 You said it's basically sort of setting the stage, if you will, 5 correct? 6 A. Yes. 7 Q. It's not relaying what actually happened at the meeting on 8 March 5? 9 A. The first paragraph, no. 10 Q. Okay. 11 knew prior to the meeting, correct? 12 A. Correct. 13 Q. And whether or not Mr. Zaid, the attorney, was going to be 14 present for the meeting, correct? 15 A. Correct. 16 Q. But this paragraph also is not setting forth anything that 17 actually happened in your meeting with Mr. Sterling, correct? 18 A. Correct. 19 Q. Okay. 20 page and continues on to the next page, and the fourth 21 paragraph do discuss what happened at your meeting with 22 Mr. Sterling, correct? 23 A. Yes, they do. 24 Q. And then if we go to the second page, the second-to-last 25 paragraph, the fifth paragraph starts with "The operation Okay. And let's look at Government Exhibit 101, and And the second paragraph, this talks about what you Now, the third paragraph, and it starts on that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 79 of 275 PageID# 5677 Stone - Cross 960 1 described by Mr. Sterling," that talks -- that paragraph is 2 about what follow-up action you took after the meeting with 3 Mr. Sterling, correct? 4 A. Correct. 5 Q. And the sixth paragraph, the last paragraph is about 6 things that had happened since the meeting, correct? 7 A. Correct. 8 Q. So in this two-page memo, there are only two paragraphs 9 that actually discuss what happened in the meeting with 10 Mr. Sterling, correct? 11 A. Yes. 12 Q. And that was your effort to fully capture everything that 13 was in your notes? 14 A. Correct. 15 Q. And the memo was written a month and a half, seven weeks 16 after the meeting itself, correct? 17 A. Correct. 18 Q. Now, the meeting itself lasted between 45 minutes and an 19 hour, correct? 20 A. 21 typical. 22 Q. 23 able to capture everything that happened during your 24 45-minute-to-one-hour meeting, correct? 25 A. To the best of my knowledge and belief, yes. It would be And it's fair to say that in two paragraphs, you weren't No. I would say those paragraphs reflect the level of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 80 of 275 PageID# 5678 Stone - Cross 961 1 detail provided by Mr. Sterling during that meeting on the 2 operation he was describing. 3 Q. 4 provided in 45 minutes or 60 minutes that's not captured in 5 those two paragraphs? 6 A. 7 in the waiting area, the time at the beginning of the meeting, 8 the time in the waiting room after the meeting, the exchange of 9 pleasantries at the front door, again setting the scale in my Okay. So you don't think there was any detail that was Well, that 60 minutes in my memory would capture the time 10 office, going over what we were going to cover, what we weren't 11 going to cover. 12 spent on the operation he was describing. 13 Q. Do you remember being interviewed by the FBI in 2010? 14 A. Can you remind me when that -- what location that was? 15 Was that in committee spaces? 16 Q. 17 Building. 18 A. Yes, I do. 19 Q. And do you remember telling the FBI agents that were 20 interviewing you that you recalled a discussion with 21 Mr. Sterling about the operation? 22 A. Yes. 23 Q. And do you recall telling them that you believed that the 24 meeting about the operation lasted 45 minutes to an hour? 25 A. So I don't think there was a full 45 minutes It looks like that happened at the Senate Hart Office If that's in their notes, I will accept that. I don't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 81 of 275 PageID# 5679 Stone - Cross 962 1 recall the exact length of the meeting. 2 Q. 3 you was in November of 2005, correct? 4 A. That sounds accurate, yes. 5 Q. So that would be about two-and-a-half years after this 6 meeting with Mr. Sterling, correct? 7 A. Correct. 8 Q. Now, at the meeting itself, that March 5 meeting with 9 Mr. Sterling, Mr. Sterling spoke from memory, correct? Now, by the way, the first time that the FBI interviewed 10 A. He had no prepared information with him. 11 Q. Exactly. 12 correct? 13 A. I do not recall him having any notes in front of him, no. 14 Q. He didn't have any documents? 15 A. He definitely didn't leave any documents with the 16 committee. 17 Q. But you don't recall him having any documents? 18 A. I wouldn't know what he had on his person. 19 remember him bringing out documents during our discussion. 20 Q. 21 having a discussion with him, he did not have any documents out 22 in front of him? 23 A. 24 to an hour. 25 lasted from 45 minutes to an hour. Okay. He didn't have any notes in front of him, I do not So for the 45 minutes or an hour that you were Again, I don't think we discussed this case for 45 minutes I believe the exchange within the committee spaces Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 82 of 275 PageID# 5680 Stone - Cross 963 1 Q. However long the discussion about the operation lasted, 2 you don't recall him having any documents in front of him that 3 he was referring to? 4 A. I do not. 5 Q. And let's go back to 101, your memo. 6 paragraph, it says that the operation entailed a CIA asset 7 providing Iran with faulty plans for a Russian-based nuclear 8 fire set. 9 In the third Do you see that? 10 A. Yes, I do. 11 Q. And you would only have included the term "fire set" in 12 that memo if that's the term that Mr. Sterling had used, 13 correct? 14 A. That is correct. 15 Q. Now, following the meeting with Mr. Sterling, you had a 16 meeting with Bill Duhnke? 17 A. Yes. 18 Q. And Bill Duhnke was who? 19 A. He was the staff director I referred to earlier. 20 Q. So in your testimony with Mr. Olshan when you were 21 referring to someone who was a staff director, that was 22 Mr. Duhnke? 23 A. Correct. 24 Q. And then you also referenced a Mr. Goco? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 83 of 275 PageID# 5681 Stone - Cross 964 1 Q. And you met with him as well? 2 A. Yes. 3 Q. Was that one meeting, or were those two separate meetings? 4 A. The meeting with Mr. Duhnke and Mr. Goco would have been 5 separate meetings. 6 Q. And who was present for your meeting with Mr. Duhnke? 7 A. I only recall Mr. Duhnke and myself. 8 Q. Who was present for your meeting with Mr. Goco? 9 A. Again, I would only recall myself and Mr. Goco. 10 Q. And when you spoke to Mr. Goco, the program that 11 Mr. Sterling had discussed with you sounded familiar to 12 Mr. Goco, correct? 13 A. Yes, as I recall. 14 Q. And at this meeting just between you and Mr. Goco, it was 15 discussed that Mr. Goco would follow up with the CIA at his 16 next scheduled meeting with the CIA, correct? 17 A. That is correct. 18 Q. And you and Ms. Divoll did not have any additional 19 discussions about the meeting with Mr. Sterling, correct? 20 A. 21 have discussed the content of the memorandum, so that I would 22 have included her name as both of us contributing to the memo. 23 I do not recall subsequent conversations after the creation of 24 the memo on this particular case. 25 Q. Well, after I had created the memo, we certainly would What about between March 5 and the creation of the memo? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 84 of 275 PageID# 5682 Stone - Cross 965 1 A. Conversation with Ms. Divoll? 2 Q. Yes. 3 A. Coordination on this memo would have taken place between 4 the meeting and the creation of this memo. 5 Q. 6 than -- you drafted this memo? 7 A. I was the primary author, yes. 8 Q. But you showed it to Ms. Divoll, correct? 9 A. Correct. 10 Q. Other than that interaction, showing the memo to her and 11 getting any input she had, did you have any other conversations 12 with Ms. Divoll about your meeting with Mr. Sterling at any 13 time? 14 A. I do not recall any such conversations. 15 Q. Now, at the meeting on March 5, Mr. Sterling told you that 16 the program involved the use of two human assets, correct? 17 A. 18 the asset who found the plans to be faulty. 19 that was one and the same or if it was two different assets. 20 can reread it. 21 22 Okay. Maybe, let me try asking it a different way. Other You were the author? I specifically recall the one asset, and then there was MR. POLLACK: I don't recall if I I apologize, Your Honor, just a second here. 23 THE COURT: 24 BY MR. POLLACK: 25 Q. All right. You said your first interview with the FBI was in 2005. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 85 of 275 PageID# 5683 Stone - Cross 966 1 Does November 10, 2005, sound right? 2 A. Yes, it does. 3 Q. And in that interview with the FBI in 2005, you recalled 4 that Mr. Sterling mentioned two human assets involved in the 5 operation. 6 A. 7 this memorandum which implies that the CIA asset was the one 8 who recognized the plans were faulty. 9 I just don't recall whether there was one or two. Do you recall telling the FBI that? I do not recall. My most recent recollections are from There may have been two. 10 Q. Do you recall Mr. Sterling told you that one asset, quote, 11 got cold feet with regard to passing the information on to the 12 intended target? 13 A. Yes, I do. 14 Q. And that there was a second asset who was the subject 15 matter expert? 16 A. I don't know that I recall that. 17 Q. But you do recall that one, one asset got cold feet at one 18 point? 19 A. Correct. 20 Q. That's not reflected in your memo in Exhibit 101? 21 A. I believe the memo states that the operation did not go as 22 planned. 23 Q. 24 feet? 25 A. Mr. Sterling told you that? Yeah. Does it say anything about an asset getting cold It does not state it in here. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 86 of 275 PageID# 5684 Stone - Cross 967 1 Q. 2 you in the meeting of March 5, 2003, that did not make it into 3 the memo that you prepared seven weeks later? 4 A. What was the question again? 5 Q. The fact that one of the human assets got cold feet at 6 some point was a detail that Mr. Sterling shared with you on 7 March 5, 2003, that did not make it into the memo that you 8 prepared about that meeting seven weeks later on April 25? 9 A. 10 That would be a detail that you recall Mr. Sterling told Okay. I agree with that, yes. It would have been captured in "The operation did not go as planned." 11 MR. POLLACK: I'd like to have Mr. Wood, if I might, 12 Your Honor, hand up to Mr. Stone the 302 from his 2005 13 interview and direct his attention to the last paragraph on 14 page 3 to see if that refreshes his recollection about whether 15 Mr. Sterling told him that there were two human assets involved 16 in the program. 17 THE COURT: All right. 18 BY MR. POLLACK: 19 Q. 20 but go ahead and read it to yourself, and then I'll ask you a 21 question about it, okay? 22 A. I'm sorry, which portion of this document? 23 Q. The last portion on page 3. And, Mr. Stone, I'm not asking you to read it out loud, 24 Does that refresh your recollection that in 2005, you 25 told FBI agents that Sterling, Mr. Sterling mentioned two human Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 87 of 275 PageID# 5685 Stone - Cross 968 1 assets involved in the operation? 2 A. Yes, it does. 3 Q. And if we could -- 4 MR. OLSHAN: Your Honor, can we just get a 5 clarification as to whether the witness is saying yes, that's 6 what I told the FBI, versus yes, that's what Mr. Sterling -- 7 THE COURT: Sustained. Do you recall now having read 8 that, having read your report of interview, do you recall now 9 whether or not Mr. Sterling did discuss two assets with you? 10 THE WITNESS: I seem to recall that there was two 11 assets. One was supposed to do the operation, and the other 12 asset was the one who found issue with the plans. 13 THE COURT: 14 MR. POLLACK: All right, that's his answer. Okay. 15 Q. Now, if you go to your, your memo, Exhibit 101, in the 16 third paragraph, it says the operation entailed a CIA asset, 17 correct? 18 A. Yes. 19 Q. And a little later in that paragraph, it says, "His 20 concern was based on the fact that the CIA asset . . .," 21 correct? 22 A. That's what it reads. 23 Q. Okay. 24 there were actually two human assets would be another detail 25 that he told you on March 5, 2003, that did not make it into Yes, it does. So the fact that Mr. Sterling had told you that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 88 of 275 PageID# 5686 Stone - Cross 969 1 the memo that you drafted on April 25, 2003, correct? 2 A. 3 asset. 4 Q. Now, you told the FBI in 2003 that when the -- 5 A. I did not meet with the FBI in 2003. 6 Q. I'm sorry. 7 This document can certainly be read that there is one Thank you, Mr. Stone; you're correct. You told the FBI in 2005 that Mr. Sterling told you 8 in 2003 that when the second asset reviewed the plans, he 9 quickly recognized that the plans were faulty. Do you recall 10 that? 11 A. Yes, I do. 12 Q. You also told the FBI in 2005 that you recall that 13 Mr. Sterling mentioned in the 2003 meeting with you and 14 Ms. Divoll that there was a message prepared by the asset that 15 was included in the package of plans for delivery to Iran. 16 you recall telling the FBI that in 2005? 17 A. 18 Do I do not recall the full contents of that meeting. MR. POLLACK: I'm sorry, Mr. Wood, if you could go 19 ahead and pass the same document back up, the 2005 302? 20 Q. 21 partial paragraph on page 4 of that document. 22 A. I've read it. 23 Q. Does that refresh your recollection that in 2005, you told 24 the FBI that you vaguely recalled there may have been a message 25 prepared by the asset which was included in the package? And, Mr. Stone, I'm going to ask you to look at the first Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 89 of 275 PageID# 5687 Stone - Cross 970 1 A. Yes, it does. 2 Q. And do you recall having -- do you recall having told the 3 FBI that in 2005, do you recall that you learned that 4 information from Mr. Sterling in the 2003 meeting? 5 A. Say that again, please? 6 Q. Sure. 7 recollection that there was a message prepared by the asset 8 that was included in the package. 9 A. Correct. 10 Q. My question is do you recall Mr. Sterling having told you 11 that in the 2003 meeting? 12 A. Sitting here right now, I do not recall that. 13 Q. All right. 14 A. My memo was created as a summation to document the fact 15 the CIA had provided faulty plans. 16 the entirety of every word spoken at the meeting. 17 questioned by the FBI, you have a tendency -- and you know 18 that's coming, you have a tendency to recollect the meeting in 19 greater detail. 20 Q. 21 detail? 22 A. 23 to document the need for further follow-up by the committee. 24 Q. 25 require further follow-up? Okay. In 2005, you told the FBI that you had a vague It was not meant to capture When you're So the memo was not intended to capture every It was meant to capture the details of the conversation, It was only intended to capture those details that might Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 90 of 275 PageID# 5688 Stone - Cross 971 1 A. No, it was meant to capture the totality of the meeting. 2 Q. But there were details about that meeting that you 3 recalled two-and-a-half years later when interviewed by the FBI 4 that were not captured in that memo, correct? 5 MR. OLSHAN: Your Honor, I'm going to object. Just 6 to clarify, the phrase that Mr. Pollack asked the witness about 7 is whether he said he vaguely recalled that there may have been 8 a message. 9 These are not concrete facts. MR. POLLACK: 10 THE COURT: Your Honor -Well, you can do this on redirect. You 11 can get into it with redirect, but I'm going to allow this, so 12 overruled at this point. 13 MR. OLSHAN: Go ahead. Thank you. 14 BY MR. POLLACK: 15 Q. 16 interviewed by the FBI in 2005, you did not have access to your 17 notes from the March 2003 meeting, correct? 18 A. I would not have had access to my handwritten notes. 19 Q. That's what I'm asking. 20 A. I believe -- no, I did not have access to my handwritten 21 notes. 22 Q. But you were doing the best -- 23 A. I do not believe. 24 Q. Okay. 25 two-and-a-half years later to recall everything that you could Mr. Stone, am I correct in understanding when you were But you were doing the best that you could Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 91 of 275 PageID# 5689 Stone - Cross 972 1 have -- you could recall about the 2003 meeting with 2 Mr. Sterling, correct? 3 A. That is correct. 4 Q. And you were able to recall some things that you did not 5 capture in your April 25 memo, correct? 6 A. 7 information in here that is not captured in my memorandum. 8 Q. 9 recall Mr. Sterling saying something in the meeting that at Well, I didn't write this memo, so there clearly is And you testified on your direct examination that you 10 some point you later characterized as essentially the documents 11 were just thrown over the fence or something to that effect, 12 correct? 13 A. Are you talking about my testimony earlier today? 14 Q. Yes. 15 A. Yes, I did. 16 Q. And that phrase, "thrown over the fence," that was your 17 phrase, not Mr. Sterling's phrase, correct? 18 A. I believe that to be correct, yes. 19 Q. But what you were trying to characterize was the fact that 20 Mr. Sterling had told you that the plans were just left there, 21 not -- without any contact being made with anyone? 22 A. Correct. 23 Q. And the fact that the plans were just left there without 24 any contact being made with anyone, that detail is not 25 reflected in your April 25 memo, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 92 of 275 PageID# 5690 Stone - Cross 973 1 A. To me, that's captured in "The operation did not go as 2 planned." 3 Q. 4 that the human asset who said that the plans were faulty was a 5 Russian scientist. 6 A. Actually, it says it would prevent a Russian scientist. 7 Q. I understand what your memo says. 8 meeting, Mr. Sterling told you that the asset himself was a 9 Russian scientist? In the meeting in March of 2003, Mr. Sterling told you My question is in the 10 A. I don't know if that's the case or not. I do not believe 11 that's the way it was stated. 12 Q. I'm sorry? 13 A. I do not believe that's the way it's stated. 14 stated that if a Russian scientist were given these plans, they 15 would have been able to figure out they were flawed. 16 Q. 17 given the plans and said that there was something wrong? 18 A. 19 a Russian scientist. 20 Q. Okay. 21 A. I don't recall him saying they were given to a Russian 22 scientist. 23 Q. 24 asset was a Russian scientist? 25 A. I believe he And that wasn't because a Russian scientist, in fact, was I have no recollections of him stating they were given to You don't recall one way or the other? Specifically, you don't recall him saying that the human I do not. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 93 of 275 PageID# 5691 Stone - Cross 974 1 Q. And Mr. Sterling told you that this operation, the 2 delivery of these plans, occurred in 2000, correct, calendar 3 year 2000? 4 A. 5 do not recall a specific date. 6 Q. 7 than two years ago"? 8 A. 9 states, "He was asked why he was bringing this information to 10 the committee over two years after the operation took place." 11 Q. 12 you recall that Mr. Sterling told you specifically that the 13 operation occurred in the year 2000? 14 A. I do not. 15 Q. Do you recall being interviewed by the FBI in 2010? 16 was the interview at the Hart Building. 17 A. Okay. 18 Q. Now, do you recall telling FBI agents in 2010 that Jeffrey 19 Sterling brought concerns to SSCI about a CIA operation 20 conducted in 2000? 21 A. 22 date. 23 Q. 24 ask you to look at the last paragraph on the first page. 25 A. I believe I've written it as more than two years ago. I And I'm sorry, what are you referencing when you say "more The first full paragraph on the second page of my memo Okay. Understanding what the memo says, my question is do This I do not recall my exact conversation with the FBI on that I'll go ahead and hand up the 302 of that interview and Which paragraph? The first paragraph? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 94 of 275 PageID# 5692 Stone - Cross 975 1 Q. The last paragraph on the first page. 2 A. I've read it. 3 Q. Does that refresh your recollection that you told the FBI 4 that Mr. Sterling brought concerns to you about a CIA operation 5 conducted in 2000? 6 A. 7 what I said. I may have said something like two years before 8 or whatever. I don't recall exact wording at that time. 9 Q. I didn't write this memorandum. I do not recall exactly So your answer is this does not refresh your recollection 10 one way or the other as to whether or not you specified that 11 the operation was in 2000? 12 A. That is correct. 13 Q. Let's go back to the memo. 14 A. What page? 15 Q. The first page of the memo, the third paragraph. 16 where you start discussing the meeting itself, correct? 17 A. Um-hum. 18 Q. You say that the operation involved providing faulty plans 19 to Iran, correct? 20 A. Correct. 21 Q. And that the plans were for a Russian-based nuclear fire 22 set, correct? 23 A. Correct. 24 Q. And you also say that the plans had been modified by the 25 National Laboratories, correct? In the third paragraph -- This is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 95 of 275 PageID# 5693 Stone - Cross 976 1 A. Correct. 2 Q. And that's something that you would have learned from 3 Mr. Sterling, correct? 4 A. Yes. 5 Q. And Mr. Sterling was concerned that the Iranians might be 6 able to identify and correct mistakes in the plans, correct? 7 A. Yes. 8 Q. And his concern was based on the fact that the CIA asset 9 recognized the plan's flaws almost immediately after being 10 shown them, correct? 11 A. That is what he said. 12 Q. Okay. 13 that he recognized that the plans were faulty after looking at 14 them, correct? 15 A. 16 referring to -- 17 Q. 18 the asset recognized the plans were faulty? 19 you used with the FBI; do you recall that? 20 A. 21 write that document, so I do not recall the exact words I used 22 with them, but "faulty" and "flawed" seem the same to me. 23 Q. To you, they seem the same? 24 A. Yes. 25 Q. And if we continue on to the second page of your memo, in Well, actually, what you told the FBI he said is I'm not sure I see the distinction there. Yes. Are you Do you know -- do you recall telling the FBI that That was the word That's the word that's on the piece of paper. I did not Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 96 of 275 PageID# 5694 Stone - Cross 977 1 that first partial paragraph, you say that Mr. Sterling told 2 you the entire plan was turned over to the Iranians without any 3 means for further follow-up, correct? 4 A. Correct. 5 Q. And does this get to the concept that you were discussing 6 earlier, that they were just simply left somewhere? 7 A. Yes. 8 Q. And yet nonetheless, according to Mr. Sterling, the CIA 9 deemed the operation a success, correct? 10 A. That is what he said. 11 Q. And it would have been Mr. Sterling's preference that 12 rather than give them the plans as, as the operation was 13 designed, that he would have thought it would have been better 14 to string the operation out by only giving smaller pieces of 15 the plan at any one time, correct? 16 A. Correct. 17 Q. Because that would allow for more follow-up with the 18 Iranians, correct? 19 A. Presumably, yes. 20 Q. And Mr. Sterling told you that he was concerned that the 21 CIA might have given the Iranians too much information, 22 correct? 23 A. 24 been able to decipher themselves into more meaningful 25 information. He would have given them information that they could have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 97 of 275 PageID# 5695 Stone - Cross 978 1 Q. Well, go ahead and look at your memo. 2 A. Okay. 3 Q. He told you that he was concerned that the CIA gave the 4 Iranians too much information -- I'm sorry, it's the first 5 partial paragraph on the second page. 6 A. That's the way it reads, yes. 7 Q. And that the Iranians might be able to use that 8 information in some way, correct? 9 expressed to you at the meeting? That was his concern as 10 A. To build the device, yes. 11 Q. Well, your memo doesn't say to build a device, does it? 12 A. That sentence doesn't. 13 Q. Okay. 14 CIA gave the Iranians too much information, they might be able 15 to use that information in some way themselves or might be able 16 to sell that information in some way to someone else, correct? 17 A. 18 read. 19 Q. 20 about his concern that the Iranians were going to build a 21 device from, from these plans? 22 A. 23 use the exact words, "a nuclear fire set." 24 for a fire set, you would assume they'd be used to make a fire 25 set. What he expressed to you was the fear that if the That's the way the sentences at the end of that paragraph Okay. Is there a different sentence in here that talks Well, the first part of the paragraph talks about a, to If there were plans Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 98 of 275 PageID# 5696 Stone - Cross 979 1 Q. Your, your interpretation was that they might be able to 2 identify all of the flaws and actually build a fire set, 3 correct? 4 A. Say that again? 5 Q. Your interpretation of what Mr. Sterling was saying was 6 that the Iranians might be able to use -- might be able to find 7 all of the flaws and build a working fire set? 8 you understood Mr. Sterling was telling you? 9 A. Correct. 10 Q. But, in fact, the specific fear that he identified was 11 that they might be able to use the information themselves or 12 sell it to someone, not that they would find all of the flaws 13 and construct a fire set, correct? 14 A. 15 would be of value to the Iranians and any other foreign country 16 that didn't have one already. 17 Q. You presume that? 18 A. I guess what I'm saying is my recollection is the word 19 "information" in this sentence that you picked from the end of 20 the paragraph relates back to the fire set information in the 21 beginning part of the paragraph. 22 Q. 23 that we might have given them too much information, that they 24 might be able to use it in some way, and a concern that they 25 could actually take those plans and build a working fire set My concern or -- Is that what Yes, it is. I presume that complete accurate plans for a fire set All right. But there's a difference between a concern Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 99 of 275 PageID# 5697 Stone - Cross 1 from them? 980 Those are two different concerns, correct? 2 MR. OLSHAN: 3 THE COURT: Objection. Sustained. 4 BY MR. POLLACK: 5 Q. 6 rogue operation? 7 A. 8 conducted outside of normal channels. 9 Q. Mr. Sterling did not tell you that he thought this was a No. I did not get the impression the operation was And Mr. Sterling told you, if we go on to the next 10 paragraph, you asked him why he was coming to the committee at 11 this point in time with his concerns, correct? 12 A. Correct. 13 Q. And he made a reference to current events, right? 14 A. Correct. 15 Q. And current events at this time, March 5, 2003, is the 16 United States was about to go to war with Iraq based at least 17 in part on the belief that Iraq had a program of weapons of 18 mass destruction, correct? 19 20 MR. OLSHAN: afield. 23 We're getting a little far This is irrelevant, Your Honor. 21 22 Objection. THE COURT: you know. Well, I mean, it is referenced there. If Do you -THE WITNESS: I have no recollection of him giving a 24 specific reason beyond what is stated in this memorandum of why 25 he chose that time to come to the committee. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 100 of 275 PageID# 5698 Stone - Cross 1 THE COURT: 981 All right. 2 BY MR. POLLACK: 3 Q. 4 reference to current events on March 5, 2003, to refer to? Okay. 5 What, what did you understand current events -- a THE COURT: That's too vague. I'm going to sustain 6 the objection. 7 BY MR. POLLACK: 8 Q. 9 was not claiming that he had evidence that the CIA or the He -- Mr. Sterling told you he had some concerns, but he 10 National Laboratories did not take adequate precautions, right? 11 A. 12 taken adequate precautions. 13 Q. 14 that they didn't take adequate precautions? 15 A. 16 that they didn't take adequate precautions. 17 the -- 18 Q. 19 provide no evidence that the CIA and the National Laboratories 20 did not take adequate precautions," correct? 21 claiming to have evidence that the CIA and the National Labs 22 did not take adequate precautions, was he? 23 A. He claimed they didn't take adequate precautions. 24 Q. He, he had concerns about that, but he wasn't claiming 25 that he had evidence. I believe he stated he had concerns that they had not Didn't he tell you that he could provide you no evidence I don't remember him saying he could provide no evidence He claimed that Look at your first full paragraph on page 2. "He could He wasn't It was something he wanted you to look Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 101 of 275 PageID# 5699 Stone - Cross 982 1 into, correct? 2 A. 3 evidence would be the plans. 4 plans in the meeting. 5 Q. 6 technical background himself, correct? 7 A. That is correct. 8 Q. What he had was a concern based on the reaction of a human 9 asset, correct? He was claiming the plans were faulty, so I think the Right, he did not provide the And he also readily conceded to you that he doesn't have a 10 A. Correct. 11 Q. And you asked him if he had taken those concerns to the 12 Inspector General within the CIA, correct? 13 A. Correct. 14 Q. And he told you that he had not and he had not had a good 15 experience with the Inspector General related to his employment 16 discrimination claims, correct? 17 A. That is true, yes. 18 Q. And a CIA officer or a case officer or a former case 19 officer who has concerns about an operation may come to SSCI 20 with those concerns, correct? 21 A. 22 committee. 23 channels first. 24 Q. 25 There was nothing improper about your having this meeting with Generally, they were not supposed to come direct to the Okay. It was supposed to be worked through the internal But they -- such person is allowed to come to SSCI. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 102 of 275 PageID# 5700 Stone - Cross 983 1 Mr. Sterling, was there? 2 A. 3 but there were procedures that should have been done before 4 they came to the committee. 5 Q. 6 Committee so that if somebody doesn't feel that their issues 7 are going to be adequately addressed within the CIA, there's 8 another forum that they can go to? 9 A. I don't recall the exact procedures in time at that place, Isn't part of the reason that there's a Senate Oversight It is one of the forums they can go to after all the 10 correct procedures have been followed. It should be noted that 11 the Inspector General works for both the committees and the 12 CIA. 13 oversight mechanisms we use since they are internal and have 14 direct access to all the direct cables, the cryptonyms, and 15 stuff we discussed earlier that we do not have. He's statutorily appointed, so it's one of the main 16 So normally before we take action, we would want to 17 know the Inspector General had fully vetted the situation and 18 give us a sense that it was a credible complaint before we 19 would take it on. 20 whatever happened, we agreed to meet. 21 Q. 22 meeting with Mr. Sterling, did, did you tell her that while you 23 were agreeing to the meeting, it would be unlikely that SSCI 24 would take any action if this had not been something that had 25 been raised with the Inspector General? Again, in this case, lawyers talk, and When you met with -- when you spoke to Ms. Divoll about Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 103 of 275 PageID# 5701 Stone - Cross 984 1 A. The decision to meet with Mr. Sterling was made before I 2 became involved in the situation. 3 Q. So the answer is no? 4 A. No. 5 Q. Okay. 6 met with Mr. Sterling to tell her that you didn't think that 7 the committee was likely to take any action? 8 A. 9 staff directors. Did you have a discussion with Ms. Divoll after you We would have discussed the course of action with the I was not the final arbiter on what we would 10 do or not do. 11 Q. So the answer would be no. 12 A. Correct. 13 Q. And you first learned that there had been a leak of 14 information that Mr. Sterling had provided to you at that 15 March 5 meeting from Mr. Duhnke, correct? 16 A. I believe so, yes. 17 Q. The staff director? 18 A. Correct. 19 Q. And when -- 20 A. Well, I believe I would have learned from Mr. Duhnke there 21 were inquiries as to the information, the source of the 22 information or a leak. 23 exact conversation with Mr. Duhnke and what was -- 24 Q. 25 a question about how you became aware there was a possible I don't know the -- I don't recall the Do you recall telling the FBI in 2005 that in response to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 104 of 275 PageID# 5702 Stone - Cross 985 1 leak, you advised the FBI that Mr. Duhnke had called you in and 2 told you that the FBI was investigating? 3 A. 4 not recall the exact contents of that memo. 5 Q. Okay. 6 A. Yes. 7 Q. Okay. 8 you learned about the possible leak of information because 9 Mr. Duhnke called you in and told you that the FBI was I do not recall. Again, I did not create that memo. I do You were there when you met with the FBI, correct? I'm asking you if you recall telling the FBI that 10 investigating? 11 A. I do not recall exactly what I told the FBI in 2005. 12 Q. Do you recall, whether or not you recall exactly the 13 precise words, do you recall communicating to them that you 14 learned of an FBI leak investigation from Mr. Duhnke? 15 A. 16 Mr. Duhnke that I learned there was further information -- I'm 17 sorry, further interest in the information discussed with 18 Mr. Sterling. 19 What I will recall -- I do recall is it was through THE COURT: Well, did you understand at that time 20 that the concern was that there had been a leak or improper 21 disclosure of some of that information? 22 23 24 25 THE WITNESS: That would have been -- I recall that being the basis of the renewed interest, yes. THE COURT: All right. So Duhnke did explain something along those lines to you? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 105 of 275 PageID# 5703 Stone - Cross 1 2 THE WITNESS: But I don't know that he explained it was leaked to the press or anybody in particular. 3 4 986 THE COURT: But just that there had been an improper disclosure? 5 THE WITNESS: 6 THE COURT: 7 BY MR. POLLACK: 8 Q. 9 improper disclosure? Yes. All right. And that he told you that the FBI was investigating that 10 A. He definitely told me somebody was looking into it. 11 not recall if it was the CIA, the FBI, or -- there was just 12 clearly renewed interest, and thus, I created the memo. 13 MR. POLLACK: I do Your Honor, I'm going to move to admit 14 into evidence Mr. Stone's -- I'm sorry -- yes, Mr. Stone's 15 statement to the FBI as reflected in the 302, and I will note 16 that the FBI gave him the opportunity to review that 302 and he 17 adopted the statement. 18 19 THE COURT: know that. 20 21 No. The Court does not accept 302s; you That's not the -MR. POLLACK: Well, ordinarily, the FBI doesn't give -- 22 THE COURT: I've ruled on it. 23 BY MR. POLLACK: 24 Q. 25 that you prepared your April 25, 2003, memorandum, Exhibit 101, Did you tell the FBI when you were interviewed in 2005 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 106 of 275 PageID# 5704 Stone - Cross 987 1 after learning of the FBI's interest in the matter and made the 2 comment, "I'm no fool." 3 A. 4 somebody's interest. 5 interest in the information had been brought to the staff 6 director's attention, but that certainly prompted me to create 7 the memo, and I was smart enough to figure out if some other 8 executive agency was examining this information, it would be 9 important for me to document what I knew. I've read that, and I know I created the memo due to I do not recall again exactly whose 10 Q. And you said you didn't know it involved a leak to the 11 media? 12 A. 13 leak to the media, so -- 14 Q. 15 know that it involved a leak to the media? 16 A. 17 disclosure of classified information. 18 Q. 19 March 5, 2003, and April 25, 2003, you received on your direct 20 line a call from Jim Risen, a reporter with The New York Times, 21 correct? 22 A. Correct. 23 Q. And you after speaking to Mr. Duhnke and learning about 24 the leak thought it was important to put into your memo the 25 fact that Mr. Risen had called you but that you hadn't spoken Disclosure of classified information doesn't always mean a That's my question. Is your testimony that you didn't I do not recall exactly who was involved in the improper You testified earlier this morning that sometime between Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 107 of 275 PageID# 5705 Stone - Cross 988 1 with him, correct? 2 A. Correct. 3 Q. And you did that even though you say you have no idea what 4 it was Mr. Risen was calling about, whether it had anything to 5 do with Classified Program No. 1 or not? 6 A. 7 fashion, whether it was classified or not classified. 8 activities, any activities of the committee we were not allowed 9 to talk to the press about. Staff was not allowed to talk to the press in any shape or The The only person who was allowed to 10 talk to the press about a classified or unclassified issue 11 involving the committee was the staff director, and I wanted it 12 well documented that I had not done that. 13 Q. 14 about Classified Program No. 1? 15 A. Correct. 16 Q. Mr. Risen had called your direct number, correct? 17 A. I don't know who -- he could have called the receptionist, 18 and she could have put him through to my direct number. 19 Q. 20 reflected a call from Mr. Risen to your direct number? 21 A. Not particularly. 22 Q. And you wanted to make sure that you documented that fact? 23 A. What fact? 24 him on the phone? 25 Q. And you wanted it documented in a memo you were writing Were you concerned that there might be a phone record that I didn't really say anything to him. That he had called -- that I had spoke with And in particular, you wanted to get in writing that you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 108 of 275 PageID# 5706 Stone - Cross 989 1 hadn't spoken to him, right? 2 A. Correct. 3 Q. Even though you had no idea what he was calling you about? 4 A. Speaking to the press without authorization is something 5 that can get you fired. 6 I would have -- I mean, any other time, any other day, if I'd 7 gotten a call from the press, I would have brought it to the 8 attention of the staff directors. 9 Q. And that would be Mr. Duhnke, correct? 10 A. Correct. 11 Q. Mr. Duhnke, the person who was authorized to talk to the 12 press, correct? 13 A. Correct. 14 Q. Mr. Duhnke, the one who told you that there was a leak 15 investigation, correct? 16 A. Same person, yes. 17 Q. And you're aware, are you not, that Mr. Duhnke did not 18 cooperate with the FBI's investigation? 19 MR. OLSHAN: 20 THE COURT: I wasn't looking to take that chance. Objection. Sustained. 21 BY MR. POLLACK: 22 Q. 23 a very big supporter of the CIA? 24 MR. OLSHAN: 25 THE COURT: It's fair to say that you're aware that Mr. Duhnke is not Objection. I don't know what the relevance of that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 109 of 275 PageID# 5707 Stone - Cross 1 question is. 2 990 I'll sustain the objection. And remember, ladies and gentlemen, I've warned you 3 before that statements by the attorneys which would have seemed 4 to state a fact, if the witness doesn't say yes or no, or 5 obviously, if I sustain the objection, you erase that question 6 from your mind. 7 BY MR. POLLACK: 8 Q. 9 using the code name affiliated with the operation or the asset It's not evidence in the case. In your meeting with Mr. Sterling, you don't recall him 10 that he was speaking to you about, correct? 11 A. I do not. 12 Q. But it's your practice not to refer to something that 13 you're hearing about by its code name, correct? 14 A. 15 were not exposed to the cryptonym, so they wouldn't have been 16 used in our conversation. 17 all the time. 18 Q. 19 your time on the Hill. 20 A. 21 rare. 22 Q. 23 the meeting with yourself and Ms. Divoll, in reporting it to 24 Mr. Goco, you would not have told him the code name, correct? 25 A. Depends on where I'm at, sir. Okay. Okay. On the Hill, we generally In my current capacity, I use them Well, I'm only talking to you, Mr. Stone, about In that case, the use of cryptonyms was extremely And if Mr. Sterling had mentioned a code name to you in I wasn't provided a code name, so I didn't provide Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 110 of 275 PageID# 5708 Stone - Cross 1 Mr. Goco a code name. 2 Q. 3 a code name? 4 A. You now have a specific recollection you weren't provided I've recalled all along I was not provided a code name. 5 6 991 Wait, are you using the word "code name" and saying it as a cryptonym? 7 THE COURT: 8 THE WITNESS: 9 That's what he means, yes. Okay. Then I was not provided a cryptonym, and therefore, I did not provide Mr. Goco a 10 cryptonym. 11 BY MR. POLLACK: 12 Q. 13 recall whether Mr. Sterling referred to this program by name, 14 like Merlin? 15 A. I do not recall him providing a name of the program. 16 Q. And in speaking to Mr. Goco, you would have mentioned the 17 target country of the operation rather than the code name of 18 the operation, correct? 19 A. I would have made the referral to Iran, yes. 20 Q. And your memo mentioned the target country but not the 21 code name, correct? 22 A. That is correct. 23 Q. Now, during your meeting on March 5 with Mr. Sterling and 24 Ms. Divoll, you sensed some frustration from Mr. Sterling, 25 correct? Well, whether or not it was a full cryptonym, do you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 111 of 275 PageID# 5709 Stone - Cross 992 1 A. In regards to? 2 Q. Anything. 3 somewhat frustrated? 4 A. 5 Divoll present, I don't remember him being agitated, 6 frustrated, acting abnormally. 7 "frustrated." 8 Q. He wasn't acting abnormally, correct? 9 A. Correct. 10 Q. He didn't seem overly agitated? 11 A. No. 12 Q. Remained calm throughout the meeting? 13 A. Absolutely. 14 Q. But while he remained calm, you did sense some 15 frustration? 16 A. To what are you referring? 17 Q. Well, let me ask you, do you remember in 2010 telling the 18 FBI that you sensed Sterling's frustration during the meeting, 19 although Sterling remained calm? 20 A. 21 frustration during the meeting in my office discussing the 22 operation he was describing. 23 discussions in the reception area, he was frustrated with his 24 case against the CIA and a bunch of other, you know, his basic 25 interaction with the CIA, but I do not recall him voicing, you In speaking to you, did he seem at times to be I would say during the meetings in my office with Vicki I'm not sure what you mean by There's multiple things going on. I don't remember any I think in the course of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 112 of 275 PageID# 5710 Stone - Cross 993 1 know, other than being unhappy with the operation, any other 2 frustrations or concerns or -- 3 Q. When you talk about the conversations in the hall -- 4 A. No, I said the reception area. 5 Q. In the reception area. 6 meeting or after the meeting? 7 A. It could have been either one. 8 Q. At some point, you recall him expressing some frustration 9 with the CIA in, in the reception area? Is that conversation before the 10 A. Usually anybody who's come to the committee is frustrated 11 over their relationship with the Central Intelligence Agency. 12 That's why they're there. 13 Q. Okay. 14 A. So I don't -- if you're asking me to be, if I recall a 15 specific issue he was frustrated over, I do not. 16 of the conversation between him and his lawyer and us in the 17 reception area or whatever, clearly there was frustration with 18 his career at the CIA or his exchanges with the CIA on this and 19 his personnel other stuff. 20 Q. 21 his employment discrimination lawsuit? 22 A. 23 over, but between the two of them, it would -- 24 Q. 25 recall who made it, about hoping that something would happen In the course And specifically frustration with his employment issue and Again, I don't recall the exact issue he was frustrated And as far as his comment or Mr. Zaid's comment, you don't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 113 of 275 PageID# 5711 Stone - Cross 994 1 quickly, you don't recall whether that related to his 2 employment issues? 3 A. 4 employment or the operation. 5 during these types of exchanges with people, complainants, 6 that, you know, they wanted, they wanted to move the ball: 7 What are you going to do? 8 Q. 9 March 5, 2003, that what Mr. Sterling was talking to you about I do not recall which one it applied to, no, either the Such statements were so common Now, you understood when you met with Mr. Sterling on 10 was a classified operation, correct? 11 A. Correct. 12 Q. And, in fact, that's why Mr. Zaid, the lawyer, had to sit 13 out in the reception area? 14 meeting, correct? 15 A. Correct. 16 Q. And you understood that it was important not to disclose 17 information about that operation, correct? 18 A. Correct. 19 Q. And you understood that -- well, afterwards, you 20 understood -- at some point, you understood from Mr. Duhnke 21 that there was an investigation into -- 22 23 MR. OLSHAN: He couldn't even come in in the Objection, Your Honor. We've been down this road. 24 THE COURT: 25 MR. POLLACK: Sustained. It's been asked before. I'm going to ask something different, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 114 of 275 PageID# 5712 Stone - Cross 1 995 Your Honor. 2 THE COURT: 3 MR. POLLACK: Well, then get right to it. All right. 4 Q. After you learned from Mr. Duhnke that there was an 5 investigation into a leak, you prepared this memo, right, 6 Exhibit 101? 7 A. 8 said to me. 9 should write the memo. You used the word "leak." I'm not sure exactly what he He said something to me that made it clear that I 10 Q. Well, but specifically, he made it clear that there was 11 some sort of an investigation going on, correct? 12 A. 13 classified information. 14 Q. 15 clearly that if Mr. Sterling or his lawyer had been threatening 16 to go to the press not about his employment issues but about 17 Classified Program No. 1, that that would have been something 18 you would have wanted to document in your, your memo? 19 A. 20 or -- 21 Q. 22 or even implied that they were going to go to the press about 23 Classified Program No. 1 at a time that you're writing a memo 24 because you're concerned about a leak about Classified Program 25 No. 1, that's a fact that you would have included in the memo It was clear to me there had been a disclosure of Okay. And at that point, you would have understood very Are you asking me if he said he was going to the press I'm saying that if he had or Mr. Zaid had, in fact, said Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 115 of 275 PageID# 5713 Stone - Redirect 996 1 if that were a true fact? 2 A. 3 I would have included in the memo. 4 Q. 5 correct? 6 A. If it were a true fact, I believe that would be something And the memo makes no reference to that comment at all, No, it does not. 7 8 MR. POLLACK: I don't have anything further of Mr. Stone. 9 THE COURT: 10 MR. OLSHAN: 11 Redirect, Mr. Olshan? One moment, Your Honor. REDIRECT EXAMINATION 12 BY MR. OLSHAN: 13 Q. 14 Just a couple questions for you, Mr. Stone. If we could bring up page 2, Exhibit 101? 15 memo that you drafted, Mr. Stone. 16 second -- or the first full paragraph? 17 That's the If you'd zoom in on the Mr. Pollack asked you some questions about 18 Mr. Sterling's technical background. Do you remember that? 19 A. Yes, I do. 20 Q. Do you recall whether Mr. Sterling offered to you that he 21 didn't have a technical background or responded to a question 22 from you about that? 23 A. 24 recall whether we asked or he offered that he did not have a 25 technical background. I recall it was addressed in the conversation. I do not Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 116 of 275 PageID# 5714 Stone - Redirect 997 1 Q. Mr. Pollack asked you a number of questions about the 2 times you've been interviewed with -- by the FBI, right? 3 A. Correct. 4 Q. 2005? 5 A. I believe there's one other one after that. 6 Q. The memos that Mr. Pollack showed you, did you write any 7 of those? 2010? 8 MR. POLLACK: 9 THE COURT: Objection. Asked and answered. It's quite clear, 302s are written by FBI 10 agents. They're not written by the person who is being 11 questioned. 12 BY MR. OLSHAN: 13 Q. 14 the best memorialization of what occurred in the meeting that 15 you and Ms. Divoll had with Mr. Sterling? 16 A. That would be my memorandum. 17 Q. And you made that in 2003? 18 A. That is correct. 19 Q. Other than that meeting with Mr. Sterling, are you aware 20 of anyone else ever raising any concerns to you at SSCI about 21 this specific program? 22 A. Let's move this along. Mr. Stone, as you sit here today, in your view, what is Not to my knowledge. 23 MR. OLSHAN: 24 THE COURT: 25 MR. OLSHAN: One moment, Your Honor? Yes, sir. That's all I have. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 117 of 275 PageID# 5715 Stone - Redirect 998 1 THE COURT: 2 MR. POLLACK: 3 All right, any recross? Yes. RECROSS EXAMINATION 4 BY MR. POLLACK: 5 Q. 6 of what happened at the meeting is because you don't have your 7 handwritten notes, correct? 8 A. And the reason that that memo is the best memorialization Yes. 9 MR. POLLACK: 10 THE COURT: 11 THE WITNESS: Thank you. All right, is anybody -It's also closest to the time of the 12 event. 13 meeting. 14 BY MR. POLLACK: 15 Q. 16 event than your memo seven weeks later, correct? 17 A. Correct, but those -- 18 Q. So the best memorialization of that meeting would be your 19 handwritten notes, correct? 20 A. 21 so, I mean, you can argue that either -- I don't have an 22 opinion on that. 23 24 25 Sorry, it's also closest to the time of the actual Your handwritten notes were closer to the time of the The handwritten notes wouldn't have been in full sentence, MR. POLLACK: I don't have anything further. Thank you. THE COURT: Anybody going to call Mr. Stone again? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 118 of 275 PageID# 5716 Divoll - Direct 1 MR. OLSHAN: 2 THE COURT: 3 witness. 4 999 No, Your Honor. No? Then, sir, you're released as a You can stay in court, or you may leave. THE WITNESS: 5 Thank you. Thank you, ma'am. (Witness excused.) 6 THE COURT: Call your next witness. 7 MR. TRUMP: Ms. Divoll. 8 THE COURT: All right, Ms. Divoll. 9 VICKI JAMIESON DIVOLL, GOVERNMENT'S WITNESS, AFFIRMED 10 DIRECT EXAMINATION 11 BY MR. TRUMP: 12 Q. Good afternoon. 13 A. Vicki Jamieson Divoll. 14 Q. Would you spell your first name? 15 A. V-i-c-k-i. 16 Q. And would you spell your last name, please? 17 A. D-i-v-o-l-l. 18 Q. I'll ask you to speak loudly and clearly into the 19 microphone so everyone can hear you. 20 A. Yes. 21 Q. Are you currently employed? 22 A. No. 23 Q. What was your last employment? 24 A. Most recently, I taught at the Naval Academy in Annapolis. 25 Q. And what did you teach at the Naval Academy? Would you please state your full name? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 119 of 275 PageID# 5717 Divoll - Direct 1000 1 A. I taught a course on U.S. government and the Constitution. 2 Q. Are you an attorney? 3 A. Yes. 4 Q. Where did you go to law school? 5 A. University of Virginia. 6 Q. Did you practice law upon graduation? 7 A. Yes. 8 several years. 9 Q. And was that in what type of law? 10 A. I did a variety of things but primarily litigation. 11 Q. And did you take a break from the practice of law for a 12 while? 13 A. 14 time at the law firm, and I took an extended leave of absence 15 which ended up being a total leave of absence for about ten 16 years and didn't, didn't work during that time and had a third 17 child during that period. 18 Q. When did you return to full-time employment? 19 A. I didn't return to full-time employment for quite a number 20 of years. 21 believe it was at the end of 2004. 22 Q. So back up. 23 A. No, I'm sorry, the end of -- it was the beginning of the 24 Clinton administration. 25 been the end of 1993 or beginning of '94. Yes. I worked in a large Washington, D.C., law firm for After I had my second child, I had been working part I returned to employment on a part-time basis, I I'm sorry, I misspoke. It would have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 120 of 275 PageID# 5718 Divoll - Direct 1001 1 Q. And what did you do when you returned to employment? 2 A. I had a position as a lawyer helping in the White House 3 Counsel's Office under President Clinton. 4 Q. 5 Office? 6 A. I think it was a little under two years. 7 Q. And after that, what did you do? 8 A. I got a, a job as an attorney at the Central Intelligence 9 Agency. And how long did you work at the White House Counsel's 10 Q. And approximately when was that? 11 A. That would have been the fall, I believe, November 1995. 12 Q. Were you assigned to any particular division within the 13 CIA? 14 A. 15 division and worked there for about a year and a half, and then 16 I went to the counterterrorism center. 17 Q. 18 attorney for the CIA? 19 A. Yes. 20 Q. And did you maintain that clearance? 21 A. Yes. 22 Q. Were you trained in the proper handling of classified 23 information? 24 A. Yes, I was. 25 Q. How long were you at the CIA? Yes. When I first came in, I was put in the litigation Did you have to have a Top Secret clearance to work as an Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 121 of 275 PageID# 5719 Divoll - Direct 1002 1 A. I was there until January of 2000. 2 Q. And what happened then? 3 A. I was hired to be the minority counsel on the Senate 4 Intelligence Committee. 5 Q. And that's the Senate Select Committee on Intelligence? 6 A. Yes. 7 Q. Sometimes referred to as SSCI? 8 A. Yes. 9 Q. And just generally, what were your duties and Where did you go to work? 10 responsibilities at the committee when you were first hired? 11 A. 12 then, and the, Senator Bryan of Nevada, the vice chairman, 13 hired me to be his lawyer on the minority side, so to help him 14 with legal issues. 15 Q. And you were part of the staff of the committee? 16 A. Yes. 17 Q. Did you have to maintain a security clearance to, to work 18 on the committee? 19 A. Yes. 20 Q. And were you required to occasionally or -- were you 21 required to review classified information? 22 A. Every day. 23 Q. As a staff member, were you authorized to speak to the 24 press on your own? 25 A. Well, the Democrats were in the minority in the Senate No. There were occasions when -- later on where -- I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 122 of 275 PageID# 5720 Divoll - Direct 1003 1 became general counsel later, and I guess you'll ask me about 2 that, but there were a few occasions where my boss asked me 3 specifically to speak to the press about a legislative matter 4 or a policy matter, but as a general rule, no. 5 asked to do so by my boss, no, I was not supposed to talk to 6 the press and didn't. 7 Q. 8 of 2003. 9 approximately February-March of 2003? Unless I was Let me direct your attention to late February-early March What was your position with the committee in 10 A. Well, I had been general counsel when the Democrats had 11 taken over. 12 majority lawyer job, but at the end, in the 2002 election, the 13 Democrats lost power, and my boss, Senator Graham at that time 14 from Florida, also retired from the Senate, so when the Senate 15 came back into session at the beginning of 2003, I was no 16 longer in a general counsel or minority counsel role, but I did 17 stay on the staff. 18 Q. So you were a staff member for the committee? 19 A. Yes. 20 lawyer to staff him, and I stayed on. 21 matters for the committee as needed, but I was a general staff 22 member who also could do legal matters, work on legal matters. 23 Q. 24 Zaid? 25 A. I'd been moved from the minority lawyer job to the Senator Rockefeller was going to bring on his own I still did some legal At that time, did you know someone by the name of Mark I didn't know him, but I had heard the name many, many Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 123 of 275 PageID# 5721 Divoll - Direct 1004 1 times. 2 Q. 3 his? 4 A. Yes. 5 Q. And did you arrange that meeting? 6 A. I did. 7 Q. To your, to your knowledge, what information did Mr. Zaid 8 provide to you for purposes of scheduling this meeting? 9 A. Did he contact you to arrange a meeting with a client of I believe, I believe that he told me that he had a client 10 who had been an officer at the CIA who, my understanding was 11 that he was no longer there and that he wanted to come to the 12 committee to tell us about something that he thought we should 13 know. 14 Q. And did you, did you schedule a meeting? 15 A. Yes. 16 Q. Sitting here today, do you recall the exact date of the 17 meeting? 18 A. No. 19 20 MR. TRUMP: 100? 21 22 If we could, Your Honor, pull up Exhibit THE COURT SECURITY OFFICER: Did you say Exhibit No. -- 23 MR. TRUMP: It's already in. We'll just pull it up If you could look at that screen? Do you recognize that 24 on the screen. 25 Q. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 124 of 275 PageID# 5722 Divoll - Direct 1005 1 document? 2 A. In general. 3 Q. And that's a visitors log for March 5 of 2003? 4 A. Yes, it is. 5 Q. Does it also have, appear to have Mr. Zaid's name? 6 A. I can't really read the -- 7 Q. If you could blow that up? 8 A. Yes. 9 Q. And above that, a J. Sterling? 10 A. Yes. 11 Q. Does that refresh your recollection as to when the meeting 12 occurred? 13 A. Yes. 14 Q. Prior to the meeting, did you go to someone else on the 15 staff and ask that person to attend? 16 A. 17 there, but -- I don't recall if I asked the staff director how 18 we should proceed or whether I on my own decided that Don Stone 19 would be the proper person to conduct this meeting. 20 Q. In the end, did Mr. Stone attend the meeting? 21 A. Yes. 22 Q. Was the meeting conducted in the secure space of the 23 committee? 24 A. Yes. 25 Q. Why was that necessary? Yes. I recognize the logbook, yes. Yes, I see his name, M. Zaid. It's not very legible, but it looks like that, yes. I, I don't exactly remember the sequence of events Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 125 of 275 PageID# 5723 Divoll - Direct 1006 1 A. Well, we -- well, all of our business is conducted in a 2 secure space. 3 also anticipated that there might be classified matters that 4 Mr. Sterling wanted to discuss with us. 5 Q. Was Mr. Zaid invited to participate in the meeting? 6 A. No. 7 Q. Do you see the person that we've been identifying as 8 Mr. Sterling here in court? 9 A. Yes, I do. 10 Q. Would you point him out, please? All of our offices are in a secure space, but we 11 (Witness indicating.) 12 THE COURT: The record will reflect the 13 identification. 14 BY MR. TRUMP: 15 Q. 16 meeting about? 17 A. 18 had somehow learned that Mr. Sterling was no longer with the 19 agency and was in a disputed situation with them about his 20 termination, and so we didn't want to talk about that, and we 21 had discussed in advance among ourselves that we didn't want to 22 get into that at all, and we told him that, but it turns out 23 that that was not what he wanted to talk about. 24 proceeded to talk about the matter he came for. 25 Q. Now, very generally speaking, what was, what was the Well, we already knew, either Mr. Zaid had told me or we So we And was a memo eventually prepared of that meeting? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 126 of 275 PageID# 5724 Divoll - Direct 1007 1 A. Yes. 2 Q. And did you participate in the preparation of that memo? 3 A. I did. 4 Q. And would you describe your participation in the 5 preparation of that memo? 6 A. 7 during the meeting, and we agreed that Don would write the 8 first draft and I would review it and make changes or add 9 things as I deemed appropriate. Well, we agreed that Don would write -- we both took notes 10 Q. And if -- again, if we could, would you pull up Exhibit 11 101, Government 101? 12 Is that the memorandum that was prepared? 13 A. Yes. 14 Q. And have you gone over it prior to trial today? 15 A. Yes. 16 Q. Is it an accurate summary of the meeting as best you can 17 recall? 18 A. 19 tell, it was accurate. 20 that, that I would deem to be inaccurate. 21 it's an accurate description of the meeting. 22 Q. 23 fairly accurate with respect to the level of detail at the 24 meeting? 25 A. You've shown it to me, and I've read it. Well, I mean, so many years ago. Yes, as far as I could I don't -- there's nothing about it So yes, I believe The level of detail reflected in the memorandum, is that Yes. I mean, the way we, we handled the memo writing, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 127 of 275 PageID# 5725 Divoll - Direct 1008 1 both of -- my habit is to take very detailed notes when I'm in 2 pretty much any meeting, but certainly a meeting like this, and 3 Don took notes as well, as I recall, and so we, you know, we 4 took this matter very seriously at the time, and we -- I 5 referred to my notes when I reviewed Don's draft to make sure 6 that he hadn't forgotten anything that I had made note of and 7 maybe he hadn't made note of or to see if there was anything 8 inaccurate. 9 Q. And what was it that Mr. Sterling discussed with you at 10 your meeting? 11 A. 12 when he was at the agency, at CIA, and it involved the Iranian 13 nuclear program and efforts by the agency to thwart or slow 14 down or undermine the progress of their nuclear research, and 15 that the operation involved giving -- having plans developed, 16 nuclear plans, nuclear weaponry plans -- I'm not a scientist, 17 so I don't really know exactly how you would say that -- but 18 the plans would be developed by the United States government 19 and that they would be provided through one of the agency 20 sources to the Iranians in such a way that they would believe 21 that they were getting their hands on something valuable, but 22 instead, there was a flaw built into the plans that I 23 understood from Mr. Sterling the point of the operation was to 24 slow them down by heading them down the wrong path. 25 Q. He talked to us about an operation that he had worked on Now, that was the, the general outline of the operation, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 128 of 275 PageID# 5726 Divoll - Direct 1009 1 correct? 2 A. Yeah, as he described it to me. 3 Q. What was Mr. Sterling's concern about the operation? 4 A. He was concerned that the flaw in the plans was not very 5 well done and that the plans -- that the flaw would be easily 6 identified by Russian scientists who would be helping the 7 Iranians and that the operation would not be successful and, in 8 fact, could even be detrimental to our goals. 9 Q. Now, let's look specifically at the third paragraph of 10 that exhibit. Would you rather look at it on a piece of paper 11 or on the screen? 12 A. The screen's good. 13 Q. Okay. 14 any additional information provided by Mr. Sterling with 15 respect to the asset? 16 A. No. 17 Q. There is terminology in that paragraph in the third 18 sentence, "The operation entailed a CIA asset providing Iran 19 with faulty plans for a Russian-based nuclear fire set." 20 you familiar with that type of terminology when it was 21 mentioned by Mr. Sterling? 22 A. The term "asset"? 23 Q. No, the term "nuclear fire set." 24 A. No. 25 Q. That's the first time you'd ever heard it? Now, the memo reflects a CIA asset. Do you recall Were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 129 of 275 PageID# 5727 Divoll - Direct Yes. 1010 1 A. I'd never heard the term, and, in fact, I'm sure 2 that term came from Don's notes because I have no memory of 3 that term at all. 4 Q. 5 information about the phrase "nuclear fire set"? 6 A. 7 of the plans. 8 Q. 9 he -- he's referring to Mr. Sterling, correct? So sitting here today, you don't recall any additional No. All I recall is that there was a flaw in some aspect That was all that I took away from the meeting. The memo goes on to say at the bottom of the page that 10 A. Yes. 11 Q. That he would have preferred to string the operation out 12 by giving pieces of the plan over time. 13 plan was turned over to the Iranians without any means for 14 further follow-up. 15 In the end, the entire Do you recall any additional details provided by 16 Mr. Sterling as to what his specific concerns were about how 17 the operation was handled in this respect? 18 A. 19 detailed than I personally recall. 20 it is not something I really remember. 21 but I don't remember it at all now, and I don't remember any 22 other details. 23 them in the memo. 24 Q. 25 CIA gave the Iranians too much information that they can either I don't think so. In fact, again, that's a little more The stringing out aspect of I maybe knew it then, If I'd had them in my notes, I would have put And finally, in this paragraph, "Mr. Sterling fears the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 130 of 275 PageID# 5728 Divoll - Direct 1011 1 use themselves or sell to someone else," again, did he provide 2 as best you can remember any additional details as how the 3 Iranians would make use of this information? 4 A. 5 that by seeing a flaw, that helps you understand better how to 6 do it correctly. 7 Q. 8 terminology "cryptonym"? 9 A. Yes, cryptonym. 10 Q. It's another way of saying codeword? 11 A. Yes. 12 Q. Did Mr. Sterling provide you with any cryptonyms or 13 codewords to describe this operation or the asset involved? 14 A. 15 memory, and I'm sure if he had, it would be in the memo. 16 Q. 17 were delivered to the Iranians? 18 A. No. 19 Q. Or when they were delivered? 20 A. No. 21 Q. Did he discuss with you any specific meetings that may 22 have occurred during the operation? 23 A. No. 24 Q. Did he give you any documents at the meeting? 25 A. No. No. The impression I got from the way he described it was That's only how I understood it then and now. From your days at the CIA, were you familiar with the No. He didn't tell us anything about the asset in my As best you can recall, did he tell you where these plans Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 131 of 275 PageID# 5729 Divoll - Direct 1012 1 Q. You're familiar with CIA cables? 2 A. Yes. 3 Q. Did he show you or give you any CIA cables? 4 A. No. 5 appropriate for him to have them. 6 Q. 7 it your practice to, to review CIA cables? 8 A. Oh, yes. 9 Q. Would you keep them or return them to the agency? 10 A. In most cases, frankly, in most cases, if they were actual 11 cables as opposed to other kinds of documents, we would 12 actually review them out there. 13 files, but you can't take them out of the secure space. 14 Q. When you say "out there," at the CIA? 15 A. At the agency, yeah, Langley. 16 Q. How did the meeting end? 17 A. It was a very cordial meeting. 18 long meeting. 19 I'm -- it's a long time ago, but that is the vague memory I 20 have of it, and that's normally how we would have. 21 remember there being anything alarming other than the story 22 itself about meeting with him, so I think we just said good-bye 23 and escorted him out. 24 Q. 25 what Mr. Sterling expected you to do? I would remember that because it wouldn't have been And while at the committee, working for the committee, was Sometimes they ended up in our It wasn't a particularly I think we shook hands and thanked him. I mean, I don't When the meeting ended, did you have an understanding of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 132 of 275 PageID# 5730 Divoll - Direct 1013 1 A. Well, I think he expected us, I assumed then and he 2 probably said so, but that the reason he was here -- there 3 meeting with us was to, that he was frustrated that this CIA 4 operation was, was bad, and hoped that in our capacity as our 5 job is conducting oversight of the agency, that we would take 6 action out at CIA to do something about it. 7 And I think we probably said, you know, we'll decide 8 whether we're going to follow up or not. I'm sure we left it 9 very vague with him because we wouldn't have made any promises 10 to him. 11 Q. 12 since the meeting with Mr. Sterling and his attorney, there has 13 been minimal contact with staff. 14 committee highlighting press articles involving Iranian nuclear 15 interests. Now, the memorandum in the very last paragraph says that 16 Do you recall receiving any e-mails to that effect? 17 A. 18 was minimal, frankly. 19 needed to be at the meeting. 20 Mr. Sterling has e-mailed the No. I don't recall -- I mean, my role in the meeting was, Don Stone was the primary person who I was there because you would want at least two 21 people there, and also, I had been the person that Mark Zaid 22 had gotten in touch with, but my involvement in the matter 23 ended after the -- you know, shortly after the meeting, once 24 we'd talked to the staff director. 25 involvement in the case at all. I had no further Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 133 of 275 PageID# 5731 Divoll - Direct 1014 1 Q. So you referred to your discussion with the staff 2 director. 3 A. 4 Mr. Sterling left. 5 Q. And did you take this seriously? 6 A. Yes. 7 Q. And you understood it was a classified program? 8 A. Yes. 9 Q. And why did you take it to the staff director? 10 A. Well, I mean, it was a highly sensitive program that if 11 Mr. Sterling was right about the problems with the program, was 12 something that we needed to move forward on in some way, shape, 13 or form, and the staff director would be the person to make 14 that decision. 15 Q. 16 staff to follow up? 17 A. 18 the memo, that memo, and he brought Lorenzo Goco into the mix. 19 Q. 20 process? 21 A. Yes, completely. 22 Q. Other than the memo? 23 A. Right, yeah. 24 of that. 25 Q. When did that occur? I think we went to the staff director right after And did he assign it to someone else on the committee Well, we had a very brief meeting, and he told us to do Once Mr. Goco was involved, did you step out of the I mean, it wasn't my job really to be part Did you speak with anyone outside of the committee about Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 134 of 275 PageID# 5732 Divoll - Direct 1015 1 that meeting with Mr. Sterling? 2 A. No. 3 Q. Now, the memo refers to a telephone call by Mr. Risen to 4 Mr. Stone. 5 A. Yes. 6 Q. Were you aware of that contact between Mr. Risen and 7 Mr. Stone? 8 A. No. 9 Q. Were you ever contacted by Mr. Risen about your meeting Do you see that? 10 with Mr. Sterling? 11 A. No, not to my knowledge. 12 Q. Were you ever contacted by Mr. Risen at all about 13 anything? 14 A. No. 15 Q. Do you know James Risen? 16 A. No. 17 Q. Have you ever spoken to him? 18 A. Never. 19 Q. Have you ever provided any information to Mr. Risen or 20 anyone working with Mr. Risen about any matters discussed in 21 the committee -- with the committee? 22 A. No, never. 23 Q. Did you ever discuss the meeting that you had with 24 Sterling with anybody from the press? 25 A. No. I didn't even discuss it with anyone else on the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 135 of 275 PageID# 5733 Divoll - Direct 1016 1 committee who had clearances. This was one of those topics 2 that was so sensitive that you didn't even want to talk to the 3 person in the next office about it. 4 Q. Now, I'd like you to focus on early May of 2003. 5 A. Yeah. 6 Q. At that point, were you and members of the committee 7 working on an authorization bill? 8 A. Yes. 9 Q. And what, what's an authorization bill? 10 A. Well, one of the primary jobs of the committee every year 11 is to authorize the entire budget of the intelligence 12 community, all the agencies. 13 but it has to go through our committee first for an 14 authorization bill that has to be passed by the House and the 15 Senate in addition to the appropriations bill. 16 we worked on a bill that had budget items in it and also new 17 laws that would affect the community's actions. 18 Q. And was it classified information? 19 A. Was what classified information? 20 Q. The authorization bill. 21 A. Yes, a lot of it was. 22 weren't. 23 Q. 24 regarding that bill? 25 A. The appropriators appropriate it, So every year, The budget part was; the law parts Now, was there a closed session in earlier May 2003 Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 136 of 275 PageID# 5734 Divoll - Direct 1017 1 Q. And did you discuss that closed session with a colleague 2 on another Senate committee? 3 A. 4 and this happens every year; it's just the way it's done -- the 5 budget -- it's really bifurcated, and the budget side of the 6 authorization bill, the actual numbers and why they want to do 7 certain numbers for different programs, is half of it, and 8 that's highly classified. Well, yes. 9 I mean, let me add that the closed session -- The other part of it is the proposed legislation for 10 that year, you know, whether we want to amend the National 11 Security Act or amend the Foreign Intelligence Surveillance Act 12 or other, add new laws into the picture, and so that part of 13 the hearing is really not classified, but because -- it's 14 involving public law, but it's held in the same hearing, so 15 it's in a closed hearing as well. 16 Q. 17 that you just described? 18 A. Yes, it was both parts. 19 Q. The law part of the bill -- 20 A. Yes. 21 Q. -- did you discuss with a colleague from another 22 committee? 23 A. 24 Now, remember, I wasn't a general counsel or minority counsel 25 anymore, so it was really -- I had a peripheral role for this So this, this session in early May, was that both parts Well, yes. I mean, there was a provision in the bill. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 137 of 275 PageID# 5735 Divoll - Direct 1018 1 go-round of law making, but because there was no new lawyer for 2 the Democrats, they hadn't hired anyone yet, I was asked to 3 help out, and there was a provision in the proposed bill that 4 they were considering and voting on in that, in that hearing 5 that I was extremely concerned about, and so I took the 6 initiative, and it was initiative because it wasn't really 7 again my job anymore to do that. 8 9 I had been. I took the initiative to go to the Democratic staff director and say, "I'd like to pursue this, I'd like to do 10 talking points, I'd like to try to get this provision pulled 11 from the bill because it's a very bad provision," and I did 12 that. 13 the senators, including some Republicans actually, and worked 14 quite hard to -- for the end game of getting that pulled from 15 the bill. 16 Q. 17 bill? 18 A. Yes. 19 Q. One second. 20 A. I'm sorry. 21 Q. Did you discuss that with someone from another committee? 22 A. I did. 23 Q. And who was that? 24 A. Her name is Julie Katzman. 25 Q. And what committee? I made talking points. I met with staff members for all And my question is did you also discuss that part of the Leading up to the hearing, I had been -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 138 of 275 PageID# 5736 Divoll - Direct 1019 1 A. She was a lawyer, maybe the chief lawyer, I don't recall, 2 on the Judiciary Committee of the Senate. 3 Q. Why had you been discussing it? 4 A. Well, I had been discussing it with her leading up to the 5 hearing. 6 committee had co-jurisdiction over this particular issue. 7 There are many issues that aren't just intelligence, that 8 aren't just law enforcement; they overlap. 9 had as much interest in this provision as we did, and she was Her committee, Senator Leahy was the chairman, her So their committee 10 very interested in helping me and working with me to defeat it 11 in our committee. 12 Q. And in that closed session, was that provision defeated? 13 A. Yes. 14 Q. Did you communicate that to Ms. Katzman? 15 A. I did. 16 Q. Shortly after that, did an article appear in The New York 17 Times about that closed session? 18 A. Yes. 19 Q. And what happened as a result? 20 A. I was fired. 21 Q. By whom? 22 A. Bill Duhnke, the staff director. 23 Q. And was that because you discussed the closed session 24 outside of the committee? 25 A. It may have been the next day. Well, I mean, he didn't really elaborate on why, but I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 139 of 275 PageID# 5737 Divoll - Direct 1020 1 assumed that was why. They were very upset about the, losing 2 the provision in the bill, and they were very upset about the 3 newspaper article because it embarrassed them, and they fired 4 me because of it. 5 Q. 6 session? 7 A. 8 did until the article came out. 9 Q. Did you talk to anyone from the press about the closed No. And I had no idea that Julie Katzman was going to or I was surprised. And again, did you speak to anyone from The New York 10 Times -- Mr. Risen, anyone at all -- about the closed session 11 that we just discussed? 12 A. Absolutely not. 13 MR. TRUMP: The Court's indulgence? 14 Q. 15 Mr. Risen? 16 A. 17 written by them. 18 Q. 19 Ms. Katzman, was that classified or unclassified information? 20 A. 21 unclassified. 22 Q. 23 unclassified? 24 A. 25 If you know, was that article written by Mr. Lichtblau and Yes. I've seen it recently and am reminded that it was And the information that you communicated with Oh, no, it was a legislative matter. It was completely It was a law that we were considering. And the information that appears in the article was also Correct. MR. TRUMP: Nothing further, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 140 of 275 PageID# 5738 1021 1 2 THE COURT: All right, perfect timing, Mr. Trump. It's 12:00, lunchtime. 3 MR. TRUMP: I try. 4 THE COURT: So we will have the cross-examination of 5 this witness at two. 6 Ma'am, you're due back on the stand at 2:00. 7 THE WITNESS: 8 THE COURT: 9 Thank you. All right, we'll recess court. (Recess from 1:00 p.m., until 2:00 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 141 of 275 PageID# 5739 Divoll - Cross 1 1022 A F T E R N O O N 2 S E S S I O N (Defendant and Jury present.) 3 THE COURT: 4 MR. POLLACK: 5 Mr. Pollack? Thank you, Your Honor. CROSS-EXAMINATION 6 BY MR. POLLACK: 7 Q. 8 I'm one of the lawyers for Mr. Sterling. 9 A. Hello. 10 Q. Ms. Divoll, you worked with the CIA from about 1995 to 11 2000, correct? 12 A. Yes, correct. 13 Q. And you then came to the Senate Select Committee on 14 Intelligence, correct? 15 A. Yes. 16 Q. Which we've been referring to as SSCI, correct? 17 A. Okay. 18 Q. And you had gotten a call from a lawyer, Mr. Zaid, asking 19 for you or other SSCI staff to meet with Mr. Sterling, correct? 20 A. Yes. 21 Q. And Mr. Stone was tasked with joining you for that 22 meeting? 23 A. Yes. 24 Q. And, in fact, Mr. Stone was kind of the primary person at 25 that meeting, right? Good afternoon, Ms. Divoll. My name is Barry Pollack. How are you doing? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 142 of 275 PageID# 5740 Divoll - Cross 1023 1 A. Correct. 2 Q. Because he dealt with whistleblower-type issues? 3 A. Correct. 4 Q. You were there solely because you were the one who had the 5 initial contact with Mr. Zaid, correct? 6 A. Yes. 7 Q. And you took notes at that meeting, correct? 8 A. I did. 9 Q. And you typically try to take good notes when you're at a I think that is exactly why I was there. 10 meeting, right? 11 A. Yes. 12 Q. That's your practice? 13 And what was -- when is the last time that you've 14 seen the notes that you took of this March 5, 2003, meeting? 15 A. 16 because I did it routinely, was to rip my notes out of my legal 17 pad, staple them together, put a date at the top, and stick 18 them in a file, and the only reason I ever go back to that file 19 is if I need to for some reason. 20 back to it at all. Well, my practice, and I'm sure I did it in this case 21 In most cases, I don't go In this case, I'm sure I went back to it to look at 22 my notes when I was reviewing Don Stone's draft of the memo. 23 Q. 24 correct? 25 A. Now, the meeting with Mr. Sterling was on March 5, According to the records, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 143 of 275 PageID# 5741 Divoll - Cross 1024 1 Q. And Mr. Stone's memo -- if we can go ahead and pull that 2 up? That's Government Exhibit 101. 3 A. Okay. 4 Q. That's dated April 25, 2003, correct? 5 A. Yes. 6 Q. Some seven weeks later? 7 A. Yes. 8 Q. Do you recall when in the seven-week period from March 5 9 to April 25 you got a draft of Mr. Stone's memo and looked Yeah, I have it. 10 again at your notes to review that? 11 A. No, I have no idea. 12 Q. Okay. 13 point between those two dates, right? 14 A. Correct. 15 Q. And since that time, as far as you can recall, you haven't 16 seen your handwritten notes of the meeting since, correct? 17 A. No. 18 Q. And you mentioned in your testimony earlier the -- if we 19 go down, I guess, to the third paragraph of that document -- 20 the term "fire set" is not a familiar term to you? 21 A. No. 22 Q. And, in fact, you think that probably came from 23 Mr. Stone's notes? 24 A. I think it probably did, yes. 25 Q. There may have been some details that you didn't capture But whenever that was, it would have been some Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 144 of 275 PageID# 5742 Divoll - Cross 1025 1 in your notes? 2 A. Yes. 3 Q. Okay. 4 captured, right? 5 A. 6 very long meeting, and we were paying close attention, and 7 there were two of us, so I would think most of what was said 8 was captured. 9 Q. Most of it? 10 A. Or all. 11 Q. You weren't trying to take down verbatim notes, were you? 12 A. No, but I'm a good note taker. 13 Q. Okay. 14 don't think the words "fire set" were in your notes? 15 A. 16 recall the term. 17 process, it wasn't a term that was familiar to me, but 18 obviously, it's in the memo, so -- 19 Q. 20 that down for the moment. We probably each captured different things. And there were probably things that neither of you Perhaps. I would find that unlikely, though. It wasn't a But despite the fact you're a good note taker, you I have no idea if those words were used or not. I don't When I read it in the memo during this Now, in the meeting itself -- you can go ahead and put 21 In the meeting itself on March 5, Mr. Sterling did 22 not have any documents with him, correct? 23 A. No. 24 Q. And you, you knew going into that meeting that he was in 25 an employment dispute with the CIA where he had advanced some Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 145 of 275 PageID# 5743 Divoll - Cross 1026 1 claims that he believed he'd been discriminated against, 2 correct? 3 A. I was aware generally of that. 4 Q. But at this meeting, the meeting that you had with him, 5 there was no discussion of his discrimination claims, correct? 6 A. Correct. 7 Q. He was talking to you about this classified operation, 8 correct? 9 A. Correct. 10 Q. And you were intrigued by what it is that he had to say, 11 correct? 12 A. Yes. 13 Q. He didn't come across as a nut or an oddball? 14 A. He did not. 15 Q. He didn't come across as somebody who had an axe to grind? 16 A. I couldn't speak to that. 17 Q. Well, do you recall being interviewed by the FBI in 2010? 18 A. 2010. 19 Q. You don't recall a specific date. 20 the FBI in an interview that in your view, Mr. Sterling did not 21 come across as someone having an axe to grind? 22 A. 23 I do recall saying I didn't think he came across as a nut, 24 because sometimes whistleblowers are. 25 Q. I've been interviewed several times by the FBI. Do you recall telling I don't recall saying that, but I may have. I probably -- And at the conclusion of the portion of the meeting that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 146 of 275 PageID# 5744 Divoll - Cross 1027 1 was just you, Mr. Stone, and Mr. Sterling, with Mr. Zaid out in 2 the reception area, at the conclusion of that, you said that 3 you would have been very vague about sort of what follow-up 4 there was going to be, correct? 5 A. 6 also -- that would have been our practice. 7 someone coming in in that situation what your plans were, if 8 any, so I think it's likely we were very vague about that, just 9 took on board what he said and moved on. Yeah. I mean, I have a, sort of a memory of that, but I'm You wouldn't tell 10 Q. If you'd go ahead and look at 101, on the second page, the 11 first full paragraph? 12 A. Yes. 13 Q. The last sentence of that paragraph says, "He was offered 14 no information on whether, or in what manner, the committee 15 would proceed . . .," 16 A. Yes. 17 Q. But he seemed satisfied with the visit? 18 A. I don't recall that, but I don't recall him being unhappy, 19 so that's maybe where that came from. 20 Q. 21 inaccurate, you would have corrected it, wouldn't you? 22 A. Yes, absolutely. 23 Q. Now, Mr. Sterling did not make any comments indicating any 24 intention on his part to take some kind of drastic action such 25 as going to the press? Okay. correct? When you saw this, if you thought that was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 147 of 275 PageID# 5745 Divoll - Cross 1028 1 A. No. 2 Q. You didn't get the sense that he was shopping this story 3 about Classified Program No. 1? 4 A. I don't know. 5 Q. Well, in your interview with the FBI, do you remember 6 telling them that you did not get the sense that Mr. Sterling 7 was shopping the story? 8 A. I don't remember saying that to the FBI. 9 Q. Now, after your meeting with, with Mr. Sterling, you and I can't answer that. 10 Mr. Stone discussed the concerns that Mr. Sterling had raised 11 in the meeting with Bill Duhnke? 12 A. Correct. 13 Q. And Bill Duhnke was the staff director? 14 A. Correct. 15 Q. A Republican staff member? 16 A. Yes. 17 Q. And you're a Democrat, correct? 18 A. Yes. 19 Q. And at that meeting that you had with Mr. Duhnke, do you 20 recall that Mr. Goco was present? 21 A. 22 mix very quickly. 23 him right after, I actually remember standing in Mr. Goco's 24 doorway of his office briefly. 25 logical that he would be, but I don't remember him being there. Well, you know, I know that Mr. Goco was brought into the Whether he was in the room or we talked to I don't remember -- it's, it's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 148 of 275 PageID# 5746 Divoll - Cross Okay. 1029 1 Q. Do you remember Majority General Counsel Chris Ford 2 being there? 3 A. I don't. 4 Q. Staff Director Chris Mellon? 5 A. I don't remember that. 6 Q. Minority Deputy Staff Director Melvin Dubee? 7 A. No. 8 Q. Do you recall telling the FBI in 2004 that you believed 9 that those individuals may have been there? 10 A. 11 now. 12 Q. 13 there was at least one person, maybe more, who seemed to have 14 already had some familiarity with the operation that 15 Mr. Sterling had talked to you and Mr. Stone about; is that 16 correct? 17 A. It's possible, but I don't recall it. 18 Q. Go ahead and look at 101, on page 2, the second full 19 paragraph, where it says, "The operation described by 20 Mr. Sterling seemed familiar to one that had been briefed in 21 the past." 22 I may well have. Okay. I just don't have the memory of it right Whoever was present at that meeting, there were -- Do you recall that? 23 A. I see it in the memo, but I don't recall that. I had not 24 been briefed on it in the past, so that wouldn't be something I 25 was familiar with. It was completely new to me when Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 149 of 275 PageID# 5747 Divoll - Cross 1030 1 Mr. Sterling brought it up. 2 Q. 3 follow-up discussion with Mr. Duhnke and others, did you learn 4 that while it was completely new to you, it wasn't necessarily 5 completely new to them? 6 A. 7 direct memory, though. 8 you know, the operations of the agency, and so it wouldn't 9 surprise me that some people were familiar with it. And I, I appreciate that. What I'm asking is in your I have a general impression of that. I don't have any I mean, it's our job to be aware of, All I knew 10 was that I wasn't and that, again, I wasn't have a continuing 11 role, so I really, to be honest, wasn't paying all that much 12 attention. 13 Q. 14 done is he wanted the substance of Mr. Sterling's concerns 15 documented? 16 A. I do recall that. 17 Q. And then he wanted to, to shut it down and take no action? 18 A. I'm sorry? 19 Q. He didn't want to take any further action other than to 20 have the substance of Mr. Sterling's concerns documented? 21 A. 22 was -- this meeting with Mr. Duhnke was immediately after the 23 meeting with Mr. Sterling, and I don't recall that a final 24 decision was made as to how to proceed at that meeting. 25 Do you recall that Mr. Duhnke decided that what he wanted I don't understand the question. I don't recall there being such a decision made. This All I recall from that meeting is that we were told Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 150 of 275 PageID# 5748 Divoll - Cross 1031 1 to make a memo. 2 Q. Was that the only meeting that you had with Mr. Duhnke? 3 A. Yes, that's the only meeting I had on this topic. 4 Q. Okay. 5 Mr. Sterling was in litigation against the CIA, all he wanted 6 to do was record the substance of Mr. Sterling's concerns and 7 take no action? 8 A. I don't recall that. 9 Q. Do you recall in 2004 telling the FBI that the decision Do you remember Mr. Duhnke telling you that because That's -- I don't recall that. 10 was to "record it, the substance of Sterling's concerns, and 11 shut it down. 12 being asked about the basis for that decision, saying that 13 Mr. Duhnke did not think that they should get involved in the 14 matter due to the litigation issue? 15 A. 16 don't recall that not happening, either, so -- 17 Q. 18 recall Mr. Sterling discussing a Russian scientist? 19 A. I remember mention of a Russian scientist, yes. 20 Q. And that Russian scientist was an asset that was used in 21 the program? 22 A. 23 with respect to the fact that a Russian scientist would be able 24 to determine the flaw quickly. 25 recollection that the Russian scientist was also the asset We are not going to investigate it"? And then I don't -- sitting here today, I don't recall that, but I Okay. Now, in the meeting with Mr. Sterling, do you Well, I recall the use of the term "Russian scientist" I don't have a specific Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 151 of 275 PageID# 5749 Divoll - Cross 1032 1 working with Mr. Sterling. I just don't recall that one way or 2 the other. 3 Q. 4 testified this morning that you were working on an intelligence 5 bill, correct, an authorization bill? 6 A. I'm sorry, could you repeat that? 7 Q. Sure. 8 intelligence authorization bill? 9 that this morning? And at some point after the meeting with Mr. Sterling, you At some point later in time, you were working on an Do you remember talking about 10 A. Yes. 11 Q. And that there was a provision that was in the proposed 12 bill that would have expanded the power of the CIA and the 13 Defense Department to issue national security letters? 14 A. Correct. 15 Q. And you were opposed to that provision? 16 A. Not expanded. 17 Q. Created. 18 A. Created. 19 Q. Fair enough. 20 didn't previously have? 21 A. 22 FBI. 23 new provision would have given those same powers to the CIA and 24 the military. 25 Q. Yes. Wanted to give them new power that they It was a power that the Patriot Act had given to the It was controversial with respect to the FBI, and this And you, you worked for a Democrat, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 152 of 275 PageID# 5750 Divoll - Cross 1033 1 A. Yes. 2 Q. And you were opposed to that provision, giving that new 3 authority to the CIA? 4 A. Yes. 5 Q. And you, you were on the Select Committee on Intelligence, 6 but you were also working with members of the Judiciary 7 Committee with respect to that bill, correct? 8 A. 9 daily business. Here and there where our issues overlapped, yes. Not on a 10 Q. And there was a staff member of the Judiciary Committee by 11 the name of Julie Katzman, correct? 12 A. Yes. 13 Q. And she worked for a Democratic senator, correct? 14 A. Yes. 15 Q. And she was also opposed to this same provision that you 16 were opposed to, correct? 17 A. Yes. 18 Q. And then at some point, you attended a closed door hearing 19 or session of SSCI, correct? 20 A. Yes. 21 Q. And -- but particularly, you attended one in which the 22 provision that we've just been talking about was discussed, 23 correct? 24 A. Yes. 25 Q. And at some point after that closed door session, you I mean, most of our hearings are closed door. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 153 of 275 PageID# 5751 Divoll - Cross 1034 1 reported what had happened in that closed door session to 2 Ms. Katzman, correct? 3 A. Yes. 4 Q. Well, you remember that you were -- you didn't even wait 5 to go over to her office. 6 over the telephone? 7 A. 8 office. 9 recall it, either. I think I went right over to her office after it. Maybe. You were talking to her about it I don't recall that. I remember being in her I don't recall a phone conversation, but I don't not 10 Q. Do you recall a Republican staff member named Jackie 11 Russell who overheard the conversation you were having with 12 Ms. Katzman? 13 A. 14 I recall that now, yes. 15 Q. 16 you were having? 17 A. There was a phone conversation, yes. 18 Q. And it's fair to say you were kind of gloating to 19 Ms. Katzman about what had happened in that closed door 20 session? 21 A. 22 unusual when you're in the minority party in the Senate to have 23 any victories, and this was a pretty big victory. 24 chairman of the committee pull a provision is very unusual, so 25 I'm sure there was excitement in my voice, yes. Yes. Okay. Yes, I do recall that, so there was a conversation. Do you recall that it was a phone conversation that Well, we were pretty happy with the outcome. It's very To have the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 154 of 275 PageID# 5752 Divoll - Cross 1035 1 Q. And the chairman of the committee was a Republican? 2 A. Republican Senator Pat Roberts of Kansas. 3 Q. And you thought that this was embarrassing to the 4 Republicans? 5 A. 6 ask them how embarrassed they were. 7 Q. Okay. 8 A. I assume they were embarrassed. 9 certainly unhappy. I'm sure it was embarrassing to them, but you'll have to Well, I'm asking you what you thought. I assume they were 10 Q. And do you recall telling the FBI in 2004 that you were 11 gloating to Ms. Katzman about what happened in that closed door 12 session? 13 A. 14 probably said something to that effect. 15 Q. 16 member of the Senate Select Committee on Intelligence? 17 A. Correct. 18 Q. And you knew she wasn't a staff member of that committee? 19 A. Correct. 20 Q. And you knew that the rules of the Senate Select 21 Commission -- Committee on Intelligence did not allow for you 22 to share with somebody outside of the committee, even a staffer 23 from another committee, what had happened at a closed door 24 session? 25 A. I recall -- I don't recall using that word, but yes, I And the -- you knew at the time that Ms. Katzman was not a No, I did not know that at that time. My belief at the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 155 of 275 PageID# 5753 Divoll - Cross 1036 1 time and today as well was that the provision of the committee 2 rules about unclassified information, that they did not prevent 3 normal working relations between relevant -- our committee and 4 staffers from relevant committees. 5 routine basis. 6 about this kind of thing, and I had done so leading up to the 7 markup, to the vote, and I was just reporting the outcome to 8 her of the vote. 9 We all did that on a That was part of my job was to talk to her So no, I definitely did not believe at the time that 10 I was doing anything wrong. I still don't. 11 Q. 12 firing because you knew you had broken SSCI rules? 13 A. 14 complete shock to me -- it never occurred to me that Julie or 15 anybody else would talk to the press about this. 16 didn't occur to me because it wasn't -- our committee -- other 17 committees apparently talk to the press routinely, but our 18 committee for obvious reasons does not, and had she asked me or 19 had I had any inkling that she would have talked to the press 20 about what I told her, I would have told her, "Don't do that," 21 because that was not the way our committee works. Do you remember telling the FBI that you didn't fight your After I saw the article in the paper, which came as a It just 22 I still believe that talking to her was appropriate, 23 but her telling the media was completely unexpected to me, and 24 I would have asked her in no uncertain terms not to do that had 25 I known she was going to do it. She never asked me or told me Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 156 of 275 PageID# 5754 Divoll - Cross 1037 1 or warned me or anything. I just saw it in the paper. 2 Q. 3 Ms. Katzman or anybody else was going to provide this 4 information to the press, but my question to you was didn't you 5 tell the FBI that you didn't fight your firing because you knew 6 that you had broken SSCI rules by talking to Ms. Katzman? 7 A. 8 accurate is after the article came out, I had sort of a Eureka 9 moment, and I went, "Oh, my God. I understand your testimony that you didn't believe that Let me clarify. That's not exactly accurate. What's How did this get into the 10 press?" And I realized that unfortunately, it may have come 11 indirectly from me, and I was panicked because then I 12 thought of -- only then did I think of the committee rule, and 13 I'm sure I pulled it out and looked at it and realized that 14 there were interpretations of that rule that could apply here, 15 not an interpretation -- I mean, believe me, Mr. Pollack, if it 16 hadn't been in the paper and they had known I talked to Julie 17 about this, nobody would have cared. 18 fired for talking to Julie. 19 I wouldn't have been I was fired for talking to Julie and Julie telling 20 the paper. 21 Q. 22 they had just found out you talked to Ms. Katzman? 23 A. Yes, it's my firm belief. 24 Q. But you told the FBI in 2003 and then you told them again 25 in 2008 that you did recognize -- you did at some point have That's your belief, that you wouldn't have been fired if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 157 of 275 PageID# 5755 Divoll - Cross 1038 1 that Eureka moment. You realized, in fact, that what you had 2 done violated committee rules, correct? 3 A. 4 chose to apply to me in that circumstance. 5 rule had ever been used that way before to my knowledge or 6 since. 7 Mr. Pollack, make no mistake. 8 and they didn't like it. An interpretation of the committee rules that Bill Duhnke I don't think that It was used -- I mean, this was a political firing, 9 I was fired because I beat them And they were embarrassed further not just by the 10 fact that I beat them -- and when I say me, this was me. 11 this. 12 that the chairman had to pull the provision. 13 happens. I did I worked really hard, and I knew they were very upset That never 14 And I knew when I saw it in the paper that they were 15 going to really be upset, and so I was panicked, to be honest, 16 because I knew the hammer was going to come down on me, and I 17 realized that I'd given them the opening by not, as you say, 18 following the letter of the rule. 19 It was not an interpretation. I mean, my job had 20 been to interpret those rules. I knew what those rules said. 21 And as I was telling Julie, it never crossed my mind that there 22 was anything wrong in what I was doing even though I was an 23 expert in the rules. 24 he chose an interpretation of that rule that he did, but it was 25 hard to argue with. So it came as a big surprise to me that It was one interpretation of the rule. It Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 158 of 275 PageID# 5756 Divoll - Cross 1 1039 definitely was. 2 And so there wasn't a chance to fight it anyway. I 3 mean, they could fire me because they didn't like the color of 4 my dress that day. 5 Q. It was a political firing? 6 A. I believe so. 7 Q. SSCI was a very partisan political place, correct? 8 A. I believe so, yes. There was no protection there. 9 MR. TRUMP: Objection. It's going far afield. 10 THE COURT: Well, it was opened. That's the last 11 question along that line. 12 BY MR. POLLACK: 13 Q. 14 was, in fact, maybe the very next day that the information that 15 you had given -- 16 A. Possibly. 17 Q. -- outside of the committee ended up in The New York 18 Times, correct? 19 A. 20 lot more information in The New York Times article than I had 21 given Julie, so there may have been other sources that weren't 22 me. 23 24 25 After you spoke to Ms. Katzman, you say that you think it A day or two, yeah. Yes, but by the way, there was more information in -- a MR. POLLACK: Let me go ahead and mark as Defendant's Exhibit 8 -MR. TRUMP: I don't think we need to go through this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 159 of 275 PageID# 5757 Divoll - Cross 1040 1 article, Your Honor. I think the witness has explained the 2 circumstances, and it's just another wild goose chase. 3 THE COURT: Well, let me take a 30-second look at it. 4 Well, unless there's something more directly related 5 to this case, I think the government's objection is correct. 6 The witness has already testified to the article. 7 else is relevant to this case, to our case? 8 9 10 MR. POLLACK: Your Honor, what's relevant is the author of the article, the citation to a congressional Democratic aide that I want to ask -- 11 THE COURT: That's already in evidence through 12 testimony. 13 the government's objection to 8. 14 BY MR. POLLACK: 15 Q. 16 congressional Democratic aide as the -- No, we don't need to introduce this. MR. TRUMP: Objection, Your Honor. THE COURT: Yeah, I've ruled. Objection, Your Honor. 19 20 this. 21 BY MR. POLLACK: 22 Q. 23 not? 24 A. 25 I'll grant Your -- Ms. Divoll, did the article cite an unnamed 17 18 Now, what Let's move on, please. We've gone enough into Sustained. In 2008, the FBI asked you about this article, did they I don't -MR. TRUMP: Objection again, Your Honor. I think Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 160 of 275 PageID# 5758 Divoll - Cross 1 2 1041 we're done with this article. THE COURT: Is there something new you're trying to 3 bring out that's relevant to this case, not to that article? 4 The whole reason this line of questioning is relevant has 5 already been well established. Is there anything else? 6 MR. POLLACK: 7 THE COURT: 8 (Bench conference on the record.) 9 THE COURT: 10 Yes, Your Honor, there is. Well, approach the bench. MR. POLLACK: All right, where are you going with this? Your Honor, I understand her testimony 11 that she is not the source, but I'm not stuck with that, and I 12 would like to explore it on cross-examination. 13 written, the coauthor, by Mr. -- 14 THE COURT: 15 MR. POLLACK: 16 THE COURT: The article is She has said -Your Honor -She's the indirect source. You're trying 17 to prove she was the direct source, that she spoke directly to 18 either Risen or this other person? 19 20 MR. POLLACK: I'm trying to explore that with her, yes, Your Honor. 21 MR. TRUMP: 22 MR. POLLACK: 23 THE COURT: 24 MR. POLLACK: 25 Your Honor -If I might explain? Go ahead. The article was written both by Mr. Risen and Mr. Lichtblau. When she was interviewed by the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 161 of 275 PageID# 5759 Divoll - Cross 1042 1 FBI, she tried to tell the FBI that Ms. Katzman was Risen's 2 source. 3 The FBI very astutely asked her, "How do you know 4 that the -- if you're saying you're not that Democrat aide, how 5 do you know that it was a Risen source and not a Lichtblau 6 source?" 7 And she said, "Well, I knew that Risen had written 8 the article. 9 article." 10 I didn't know that Lichtblau had written the She had -- her prior boss, she will say, talked to 11 Risen and authorized her to talk to the press. 12 government has asked her very limited questions to try to 13 suggest that she has no relationship with Risen, but that's -- 14 15 16 THE COURT: She has -- the Well, you can ask that question directly. Ask her if she's ever, if she has ever communicated with Risen. MR. POLLACK: Your Honor, I don't want to inject the 17 $64,000 question that she's simply going to deny and already 18 has denied. 19 stones in between. 20 this year, up until a couple months before this happened, she 21 was in a position where she worked with someone who had a 22 source relationship with Risen. 23 many occasions to talk to the press. I want to build up to it by showing the stepping She is in her position up until January of That person authorized her on 24 She, she has this information, it almost immediately 25 ends up in a Risen article, and she knows that even though she Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 162 of 275 PageID# 5760 Divoll - Cross 1043 1 claimed she's not the source, she knows that it's a Risen 2 source and not a Lichtblau source. 3 4 5 It seems to me the jury is entitled to hear all of that in assessing her credibility. MR. TRUMP: Your Honor, this witness has no idea who 6 Risen's sources are for that article. She can only speculate 7 because she told Ms. Katzman this information. 8 firsthand knowledge whether it was Ms. Katzman, other aides, 9 other staffers, no firsthand knowledge whatsoever as to who -- She has no 10 if counsel wants to ask, "Do you have any firsthand knowledge 11 as to who the sources are in this article?" fine, but she has 12 no firsthand knowledge of who those sources are. 13 THE COURT: Well, I think you need to ask your 14 questions more directly. 15 successful. 16 that's a problem for her. 17 implications of that. 18 If she's going to commit perjury on the stand, She's a lawyer. She knows the I would not expect a lawyer to lie. And the thing is if you know her previous boss -- who 19 was her previous boss? 20 MR. POLLACK: 21 THE COURT: 22 MR. POLLACK: 23 THE COURT: 24 MR. POLLACK: 25 This indirect method isn't very Mr. Cummings. Who? Mr. Cummings. Cummings? Yes. Cumming, I'm sorry, C-u-m-m-i-n-g. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 163 of 275 PageID# 5761 Divoll - Cross 1 2 THE COURT: Cumming at times directed her to talk to Risen? 3 4 1044 MR. POLLACK: No. What she will say is that Mr. Cumming -- 5 THE COURT: 6 MR. POLLACK: Her previous boss. -- her previous boss, spoke with 7 Mr. Risen, that he was a Risen source, and that there were 8 times that Mr. Cumming asked her to speak to the press. 9 THE COURT: I think those are fair questions. Let's 10 hear what she has to say because any relationship that anybody 11 has in this case with Risen is fair game. 12 those questions, and it's fair for you to ask them, but ask 13 them directly, not this getting around it. 14 direct, just go right for it, okay? 15 You've been asking If it's that (End of bench conference.) 16 BY MR. POLLACK: 17 Q. 18 there was a staff director by the name of Al Cumming, correct? 19 A. Yes. 20 Q. And Al Cumming was a Democrat, correct? 21 A. Yes. 22 Q. And you worked for Mr. Cumming at that point, correct? 23 A. I worked for the chairman, but Mr. Cumming was my 24 supervisor. 25 Q. Ms. Divoll, prior to Mr. Duhnke being the staff director, And you were aware, were you not, that Mr. Cumming in that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 164 of 275 PageID# 5762 Divoll - Cross 1045 1 role as staff director would have occasion to talk to the 2 press, correct? 3 A. Yes. 4 Q. And specifically, you knew that he spoke to Mr. Jim Risen 5 on occasion, correct? 6 A. I don't recall that. 7 Q. Do you recall telling the FBI in 2008 that Mr. Cumming 8 spoke to Mr. Risen? 9 A. I don't recall that, but I may have said that. 10 Q. And Mr. Cumming also would require you to speak to the 11 press on occasion, correct? 12 A. I do occasionally, yes. 13 Q. But after the change in party, it was Mr. Duhnke on that 14 committee whose job it was to talk to the press, correct? 15 A. 16 directors may have had occasion to talk to the press, but other 17 staff members did not unless specifically asked to do so. 18 Q. 19 you not, that it was not uncommon for a staff member to give a 20 reporter a story in return for getting another story of 21 interest to that staff member or the committee member for whom 22 the staff member worked? 23 A. I have no idea what you just said. 24 Q. Okay. 25 SSCI, on the SSCI staff, correct? He may have. I don't know. Well, I think the minority and the majority staff In your experience on SSCI, you would agree with me, would Let me try it again. You worked, you worked for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 165 of 275 PageID# 5763 Divoll - Cross 1046 1 A. Yes. 2 Q. In your experience on the SSCI staff, you would agree with 3 me that it was not uncommon for somebody on the SSCI staff to 4 give a reporter a story in return for getting another story of 5 interest? 6 A. 7 knew that the staff directors talked to the press, but I have 8 no idea what they said to them or what kind of quid pro quos 9 they had, if any. No, I have absolutely no knowledge of that practice. I I had no knowledge of that whatsoever. 10 Q. Do you remember telling the FBI in 2004 that the 11 information could have been provided quid pro quo? 12 that it was not unusual for a staffer to give a reporter one 13 story if they agreed to publish a second story in the interest 14 of the staffer, committee, or a member? 15 A. 16 no knowledge of saying that statement, and as I sit here today, 17 I don't -- I'm frankly surprised I ever would have said that, 18 and I'm wondering whether I did because that is not something I 19 was privy to. 20 when they talked to the press. 21 knew that they did talk to the press, but I don't know about 22 this quid pro quo thing. I have -- that was 11 years ago. 23 24 25 I have, certainly have It wasn't part of my job to know what they did THE COURT: "they." You advised I wasn't in the room. I'm sorry, wait a minute. I just And you say Who do you mean by "they"? THE WITNESS: The two staff directors, the minority Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 166 of 275 PageID# 5764 Divoll - Cross 1 and the majority. 2 3 1047 THE COURT: So your testimony is that you know that the staff directors would speak with the press? 4 THE WITNESS: 5 THE COURT: I do know that. Go ahead. 6 BY MR. POLLACK: 7 Q. 8 if Mr. Duhnke was responsible if it furthered Mr. Duhnke's 9 self-interest? 10 11 MR. TRUMP: 14 15 Objection. THE COURT: Well, I don't have these 302s in front of me. MR. POLLACK: I'll hand it up, Your Honor. THE COURT: 17 MR. POLLACK: 19 20 21 And, Your Honor, referring to page 5 of the 302 -- 16 18 That is not what is in the report, Your Honor. 12 13 And did you tell the FBI that you would not be surprised All right. -- dated October 4, 2004, the first paragraph on that page. THE COURT: Well, it does -- rephrase your question. Let me hear it again. MR. TRUMP: Judge, I think my objection is that in 22 this line of -- in this part of the interview, they're asking 23 the witness to speculate about certain things. 24 THE COURT: Well -- 25 MR. TRUMP: And this was one of the things she was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 167 of 275 PageID# 5765 Divoll - Cross 1 1048 asked to speculate about. 2 THE COURT: And on redirect, you can make that more 3 clear for the jury, but this does appear to be what's in the 4 report. 5 Mr. Wood, I'll let you return this to counsel. 6 Go ahead, Mr. Pollack, ask your question. 7 MR. POLLACK: Thank you, Your Honor. 8 Q. Do you recall telling the FBI that you would not be 9 surprised if Mr. Duhnke was responsible for providing a story 10 to the press even about classified information if it would 11 further Mr. Duhnke's self-interest to do so? 12 A. 13 that, but I assume I did say it and that it's recorded here 14 accurately. 15 Q. 16 in which Mr. Duhnke had inappropriately provided information to 17 the press? 18 A. Are you pointing to something in the 302? 19 Q. I'm asking if you recall having said that to the FBI. 20 A. Yes, but I -- no, I don't recall saying it. 21 Q. Okay. 22 A. I might have said it, but I don't recall it. 23 Q. Okay. 24 and look at that document at page 5, in the last full 25 paragraph. I see this in the, in the 302. I don't remember saying And, in fact, you were yourself aware of other occasions In that case, let me just stop you there. Go ahead Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 168 of 275 PageID# 5766 Divoll - Cross 1049 1 A. Last full paragraph, yes. 2 Q. Okay. 3 recall saying that you were aware of occasions -- 4 A. Yes, I was aware. 5 Q. -- in which Mr. Duhnke had inappropriately provided 6 information? 7 A. 8 knowledge of that. 9 on the committee, but it was a story that I had been told Having had the opportunity to review that, do you Yes, I recall that now. Now, I didn't have direct It was information I'd gleaned from working 10 thirdhand or fifth-hand; I don't know. 11 Q. 12 intelligence authorization bill, you were concerned that you 13 might be suspected of being a source, correct, for that 14 article? 15 A. I was concerned, yes. 16 Q. And -- 17 A. May I correct that? 18 would be thought of as a source but that maybe my talking to 19 Julie had, could have led to that story and that I would be at 20 fault for that. 21 remember worrying that anyone would think I was a direct source 22 for that. 23 Q. 24 you'd be the prime suspect? 25 A. When you read the article in The New York Times about the I wasn't really concerned that I That was what I was concerned about. I don't Do you recall telling the FBI that you were worried that I don't recall, but I could have said that, yes. It's a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 169 of 275 PageID# 5767 Divoll - Cross 1050 1 long time ago, sir. 2 Q. 3 information that was provided to SSCI in that March 5, 2003, 4 meeting with Mr. Sterling -- And when you were interviewed by the FBI of the leak of 5 MR. TRUMP: 6 BY MR. POLLACK: 7 Q. -- you were worried -- 8 9 Objection. MR. TRUMP: The information provided to SSCI was never described as a leak. 10 MR. POLLACK: 11 THE COURT: No, no, that's not my question. Well, then rephrase the question. 12 BY MR. POLLACK: 13 Q. 14 that meeting was a leak. Information that was leaked from that meeting, not that 15 MR. TRUMP: Objection, Your Honor. 16 THE COURT: Wait. 17 MR. TRUMP: There's been no evidence or testimony 18 that any information from that meeting was leaked by any member 19 of SSCI. 20 BY MR. POLLACK: 21 Q. 22 you worried that the FBI might believe that you had leaked 23 information that you had learned from that meeting? 24 A. Not for one second. 25 Q. It didn't even cross your mind? Let me do it this way: When the FBI interviewed you, were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 170 of 275 PageID# 5768 Divoll - Cross 1051 1 A. Well, it certainly didn't cross my mind at first. It just 2 didn't -- it may have entered my mind at some point, but I 3 certainly wasn't worried about it. 4 Q. 5 Mr. Sterling told you and Mr. Stone that the operation that he 6 was discussing was carried out somewhere in Europe? 7 A. I think I do remember that, yes. 8 Q. He didn't specify that it was in Vienna, but he said it 9 took place someplace in Europe, correct? In the meeting with Mr. Sterling, do you recall that 10 A. Again, it's a very long time ago, but that sounds familiar 11 to me. I don't know actually upon reflection. 12 THE COURT: There's no question pending. 13 THE WITNESS: I'm sorry, Your Honor. 14 MR. POLLACK: If I can have Mr. Francisco pull up 15 Government Exhibit 106, which is already in evidence? 16 Q. 17 operation involved a fire set, correct? 18 A. Again, I don't remember the term "fire set." 19 Q. But again, if you believed that information was incorrect, 20 you would have corrected it in the April 25 memo? 21 A. 22 mean, when Don wrote the original draft, my role would be to 23 add things that he might have forgotten or correct things that 24 I had remembered differently. 25 information than what I had in my notes, I would just leave it The -- Mr. Sterling told you and Mr. Stone that the Well, I mean, if that was something Don remembered. I If he remembered additional Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 171 of 275 PageID# 5769 Divoll - Cross 1052 1 and assume that was his information, but I don't remember the 2 term "fire set." 3 Q. Okay. 4 A. You'll have to ask Mr. Stone. 5 Q. Okay. 6 operation was Iran, correct? 7 A. I'm sorry? 8 Q. You do remember that Mr. Sterling told you that the target 9 of the operation was Iran? But Mr. Stone did? And -- but you do remember that the target of the 10 A. Yes. 11 Q. And you do recall that Mr. Sterling told you that the 12 plans had been modified by the National Laboratories? 13 A. 14 think perhaps Don Stone put the National Laboratories part in 15 the memo because I don't recall that specifically. 16 Q. 17 said that the operation was carried out somewhere in Europe? 18 A. 19 recall that. 20 no, sir. 21 Q. 22 telling the FBI that you thought Sterling indicated the 23 operation was carried out someplace in Europe? 24 A. I don't recall that now, no. 25 Q. I'm going to hand up the 302 dated October 12, 2010, and I recall that he said the plans had been modified. I And you do recall -- did recall just a moment ago that he I'd like to correct that answer because I don't think I do It's -- I don't have a specific memory of that, Do you recall when you were interviewed by the FBI in 2010 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 172 of 275 PageID# 5770 Divoll - Redirect 1053 1 I'll call your attention, Ms. Divoll, to page 3, the last 2 partial paragraph. 3 A. Just on page 3? 4 Q. Yes. 5 A. Continued, should I read on to page 4? 6 Q. No, I think if you read the last partial paragraph on page 7 3? 8 A. 9 10 Yes, I did read that. MR. TRUMP: loud. Thank you. Objection if she's asked to read it out It either refreshes her recollection or it doesn't. 11 THE COURT: Correct. 12 THE WITNESS: 13 THE COURT: Does that refresh your memory? Yes. All right, then you can answer the 14 question -- ask a question then. 15 BY MR. POLLACK: 16 Q. 17 recall telling the FBI that you recall Mr. Sterling having said 18 that the operation took place someplace in Europe? 19 A. Having had the opportunity to review that, do you now I must have done because it's here in black and white. 20 MR. POLLACK: 21 THE COURT: 22 I don't have any further questions. All right, any redirect? REDIRECT EXAMINATION 23 BY MR. TRUMP: 24 Q. 25 staff director, you were authorized to do so, correct? The few times you spoke to the press on behalf of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 173 of 275 PageID# 5771 Divoll - Recross 1054 1 A. Yes, specifically asked to do so. 2 Q. Let's be clear, Ms. Divoll: 3 tenure at SSCI, did you ever provide Mr. Risen with any 4 information whatsoever about any matter? 5 A. 6 matter ever. 7 Q. 8 would it not? 9 A. Never. At any time during your I've never had any contact with him about any And that would include anyone working with Mr. Risen, Correct. 10 MR. TRUMP: Thank you. 11 THE COURT: Any recross? 12 RECROSS EXAMINATION 13 BY MR. POLLACK: 14 Q. You never had any direct contact with Mr. Risen, correct? 15 A. No. 16 Q. But when you've talked about committee business in 17 violation of committee rules, it's ended up in an article by 18 James Risen, correct? Correct, I've never had any contact with Mr. Risen. 19 MR. TRUMP: Objection, Your Honor. 20 THE COURT: Yeah. 21 MR. TRUMP: -- she cannot testify as to where 22 Mr. Risen got that information. 23 She can only speculate. 24 THE COURT: 25 It's argumentative. Again -- I'm going to sustain the objection. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 174 of 275 PageID# 5772 Divoll - Recross 1055 1 BY MR. POLLACK: 2 Q. 3 talk about committee business is because if people do, it might 4 end up in The New York Times? You understand that the reason for committee rules not to 5 MR. TRUMP: Objection, Your Honor. 6 THE COURT: No, that one I'll overrule. 7 THE WITNESS: 8 BY MR. POLLACK: 9 Q. Could you ask it again? You understand that the reason that there are rules 10 against talking about committee business with people outside 11 the committee is that if people do that, committee business 12 might end up in The New York Times? 13 A. 14 committee and should have been in our committee public 15 business. 16 to the legislative matters because there was nothing classified 17 in those matters, and the American people have a right to know 18 what senators are saying and doing with regard to law-making. Well, the committee business at stake here is in any other There was no reason for that hearing to be closed as 19 So I think the rules were not set up for that at all. 20 That would be a way to hide behind a closed door that shouldn't 21 be closed. 22 23 24 25 MR. POLLACK: I don't have any other questions. Thank you. THE COURT: All right, does anybody anticipate calling Ms. Divoll again? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 175 of 275 PageID# 5773 Goco - Direct 1056 1 MR. TRUMP: No, Your Honor. 2 THE COURT: How about the defense? 3 MR. POLLACK: 4 THE COURT: 5 your testimony. Oh, no, Your Honor. All right. Thank you. Then thank you, ma'am, for You're excused as a witness. 6 (Witness excused.) 7 THE COURT: 8 MR. OLSHAN: 9 Mr. Pollack? Your next witness? Your Honor, the government calls Lorenzo Goco. 10 THE COURT: All right. 11 LORENZO VERNON GOCO, GOVERNMENT'S WITNESS, AFFIRMED 12 DIRECT EXAMINATION 13 BY MR. OLSHAN: 14 Q. Good afternoon, sir. 15 A. Good afternoon. 16 Q. If you could please, state and spell your name for the 17 record. 18 A. 19 thing? 20 Q. How about just your last name? 21 A. G-o-c-o. 22 Q. Mr. Goco, are you currently employed? 23 A. Yes, I am. 24 Q. How are you employed? 25 A. I'm employed by the Senate Select Committee on Lorenzo Vernon Goco. Do you want me to spell the whole Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 176 of 275 PageID# 5774 Goco - Direct 1057 1 Intelligence. 2 Q. 3 Committee on Intelligence? 4 A. Nineteen years and six months. 5 Q. So if I've got my math, you started in '96; is that 6 correct? 7 A. 1995. 8 Q. During your 19-plus years working for the Senate 9 Intelligence Committee, can you tell the jury a little bit How long have you been an employee of the Senate Select 10 about what you did -- or what you have done? 11 A. 12 Kerrey from Nebraska. 13 six-month period before he left the committee, I was the deputy 14 minority staff director, assisting him in his vice chairman 15 duties. 16 number of years. I first came on the committee working for Senator Bob I was his special assistant. For a After that, I was a professional staff member for a 17 In 2007, I became the budget director, and in 2009, I 18 became the deputy staff director. 19 Q. 20 over the years? 21 A. Yes, it is. 22 Q. At some point in connection with your work at the Senate 23 Intelligence Committee, did you have an oversight role related 24 to classified programs run by the CIA? 25 A. So is it fair to say you've sort of moved up the ranks Yes. From the very beginning, I had -- we had -- I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 177 of 275 PageID# 5775 Goco - Direct 1058 1 participated in the oversight of the CIA. 2 period from 1999 to 2006, I focused on certain CIA programs. 3 Q. 4 the Senate Intelligence Committee, did you hold a security 5 clearance? 6 A. I did. 7 Q. And were you trained on the proper handling of classified 8 information? 9 A. Yes, I was. 10 Q. Are you familiar with the concept of need to know? 11 A. Yes. 12 Q. And can you just briefly describe that for the jury? During that time or during your entire time working for 13 14 MR. POLLACK: THE COURT: I don't think unless there's some nuance from this witness, we don't need to hear that again. 17 18 We've been through this with a number of witnesses. 15 16 In a particular MR. OLSHAN: I'll move on. I'm sure the witness appreciates that. 19 THE COURT: All right. 20 BY MR. OLSHAN: 21 Q. 22 2003. 23 that time? 24 A. Yes, I was. 25 Q. At some point during that period, do you recall having a Mr. Goco, let me direct your attention to March and April Were you in that same role overseeing CIA programs at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 178 of 275 PageID# 5776 Goco - Direct 1059 1 conversation with Vicki Divoll or Don Stone about a specific 2 program? 3 A. 4 Vicki and Don came to my office and told me they had met with a 5 whistleblower. 6 Q. And was that individual's name Jeffrey Sterling? 7 A. I believe so, yes. 8 Q. Have you ever met Jeffrey Sterling? 9 A. No, I haven't. 10 Q. What did Ms. Divoll and Mr. Stone tell you about their 11 meeting with Mr. Sterling? 12 A. 13 the CIA and he came in to talk about a program that he was 14 helping to implement and that there was a problem with the 15 program. 16 Q. 17 Mr. Sterling had told them? 18 A. 19 briefed on it before. 20 design plans to a foreign government. 21 Mr. Sterling had stated that the asset who was to pass these 22 designs to the Iranians had found a flaw, readily found a flaw, 23 and the flaws were supposed to be very subtle so that no one 24 could find them. 25 Q. Yes. I don't recall exactly what day it was, but both They said that Mr. Sterling was engaged in litigation with Should I continue? Sure. What do you recall them saying about what Their -- I was familiar with this program. I had been It was an attempt to pass some sabotaged Don and Vicki said that So was it your understanding that Mr. Sterling had Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 179 of 275 PageID# 5777 Goco - Direct 1060 1 expressed to Ms. Divoll and Mr. Stone concerns about the 2 effectiveness of the specific program? 3 A. 4 that the program wouldn't work, the effort to pass these 5 sabotaged plans would be quickly uncovered, and the time and 6 effort and resources put into it would be wasted. 7 Q. 8 concerns as relayed by Mr. Stone and Ms. Divoll, can you recall 9 any additional specifics that they provided about this Yes. Based upon what they told Vicki and Don, he thought Beyond what you just described about Mr. Sterling's 10 operation? 11 A. 12 are -- it's a way to detonate conventional explosives to set 13 off a nuclear reaction to cause an explosion. 14 Q. 15 specific model number of the fire set involved in this program? 16 A. No. 17 Q. Did they provide any details from Mr. Sterling about 18 specific meetings or where meetings may have occurred in 19 connection with this program? 20 A. No. 21 Q. Did they provide any details to you about compensation 22 related to this specific asset? 23 A. No. 24 Q. Did Mr. Stone and Ms. Divoll use a specific cryptonym or 25 code name that may have been involved in the operation? The plans were for a nuclear fire set, which I believe Let me ask, did they -- do you recall if they told you a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 180 of 275 PageID# 5778 Goco - Direct 1061 1 A. No. 2 Q. Is that something that you would remember? 3 A. Yes, because we normally are not told that type of 4 information. 5 Q. 6 to be delivered? 7 A. 8 don't know -- they didn't say where it was going to happen. 9 Q. Do you recall whether they told you where these plans were I knew the country they were going to be passed to, but I And the country it was going to be passed to was which 10 country? 11 A. Iran. 12 Q. Now, what was the reason that they came to talk to you 13 about this? 14 A. 15 this effort, and they wanted to know what I knew about this 16 program. 17 know that I was aware of the effort. 18 Q. 19 Mr. Stone and Ms. Divoll seriously? 20 A. Yes, I did. 21 Q. Did you attempt to check into the validity of those 22 concerns? 23 A. 24 briefing scheduled, I don't know if it was like the week or two 25 or maybe longer on this particular program, and that I would It was part of my oversight responsibilities to oversee I had been briefed on it previously, and I let them Okay. Yeah. Did you take these concerns conveyed to you by I mentioned to Vicki and to Don that I had a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 181 of 275 PageID# 5779 Goco - Direct 1062 1 bring up these issues at that briefing. 2 Q. 3 issues at a briefing on this program? 4 A. 5 brought up the concerns that Vicki and Don had given to me, and 6 I asked the CIA officials about their efforts and about this 7 nuclear, nuclear fire set design and whether or not the flaws 8 that were in that design would be readily apparent to somebody 9 looking at it. And at some point in the future, did you raise these At that briefing that I had scheduled previously, I 10 Q. And what was the response, generally speaking? 11 A. Generally speaking, there were -- they told me that there 12 were a number of flaws built into it. 13 very subtle flaws that no one could see. 14 they had been put together with the help of a laboratory, a 15 national laboratory, they had a Red Team, or an alternative 16 analysis team take a look at the fire set, and that -- and this 17 was a group of other nuclear scientists who had experience with 18 this type of design, and they could only find less than half of 19 the flaws, and it took them a number of -- it wasn't an easy 20 thing to do. 21 Q. 22 stakeholders, did you reach a conclusion about the concerns 23 raised by Mr. Sterling? 24 A. Yes. 25 Q. Did you relay that back to Mr. Stone or Ms. Divoll? They were designed to be They had -- and after So ultimately after conferring with the relevant I thought that -- I didn't give much credence to it. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 182 of 275 PageID# 5780 Goco - Cross 1063 1 A. I did. 2 Q. And by running down these concerns, is that something that 3 would fall within the normal scope of your duties? 4 A. 5 lot, but yes, because I oversaw that type of program, that was 6 my responsibility. 7 Q. Do you know a journalist named James Risen? 8 A. I do not. 9 Q. Have you ever spoken to James Risen? 10 A. I have not. 11 Q. Have you ever spoken to anybody who was not authorized to 12 know about classified -- this specific classified program -- 13 strike that. 14 I wouldn't say it happens a lot, or it didn't happen a Have you ever spoken to anybody about this classified 15 program whom you believed was not authorized to know about it? 16 A. No, I have not. 17 MR. OLSHAN: 18 THE COURT: 19 MR. OLSHAN: 20 THE COURT: 21 May I have a moment, Your Honor? Yes, sir. That's all I have on direct, Your Honor. All right, cross? CROSS-EXAMINATION 22 BY MR. POLLACK: 23 Q. 24 one of the attorneys that represents Mr. Sterling. 25 Good afternoon, Mr. Goco. My name is Barry Pollack. I'm When you had your meeting with Mr. Stone and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 183 of 275 PageID# 5781 Goco - Cross 1064 1 Ms. Divoll, you were aware or became aware that the employee 2 who had raised concerns about this program was somebody who had 3 been fired by the CIA? 4 A. 5 mentioned he was involved in administrative matters in 6 litigation with the CIA. 7 Q. 8 employment dispute with the CIA, you immediately had questions 9 about whether you should even raise the issue with the CIA at I don't recall them saying he'd been fired. I think they And as a result of understanding that he was in an 10 all, correct? 11 A. No. 12 Q. Do you remember being interviewed by the FBI on July 26, 13 2010? 14 A. 15 don't recall exactly the date. 16 Q. 17 of the interviews with the FBI, do you recall telling the FBI 18 that when you heard a whistleblower had raised a concern 19 regarding the operation, it did not cause you concern? 20 you heard the employee had been fired, you immediately had 21 questions about whether you should pursue the issue with the 22 CIA? 23 A. I don't recall us telling them that, no. 24 Q. I'd like to go ahead and hand up to the witness a copy of 25 the 302 dated July 28, 2010, and ask, Mr. Goco, to direct your I have been interviewed by the FBI a number of times. Okay. I And understanding you don't recall the date, in one When Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 184 of 275 PageID# 5782 Goco - Cross 1065 1 attention to page 3, the second paragraph, and I'm not asking 2 you to read it out loud. 3 yourself. 4 5 MR. OLSHAN: I just want you to review it for Mr. Pollack has just read the language to the witness and said, "Do you remember that?" 6 THE COURT: 7 refreshing. 8 BY MR. POLLACK: 9 Q. I'll give him one chance to see if it's Mr. Goco, the part I wanted you to review is page 3, this 10 second paragraph. 11 A. Yes. 12 Q. Do you recall telling the FBI that when you heard that the 13 employee had been fired, you immediately had questions about 14 whether you should pursue the issue with the CIA? 15 A. I don't, I don't recall saying those words. 16 MR. POLLACK: Okay. No, I don't. I'd like to go ahead and show 17 the witness Government Exhibit 110, which I do not believe is 18 yet in evidence but I'll go ahead and move its admission. 19 THE COURT: 20 (Government's Exhibit No. 110 was received in 21 evidence.) 22 BY MR. POLLACK: 23 Q. 24 series of e-mails? 25 A. All right, it's in. And this is, Mr. Goco, an e-mail exchange, correct? A Yes, it is. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 185 of 275 PageID# 5783 Goco - Cross 1066 1 Q. And if we start at the bottom of the first page of 110, 2 there is an e-mail on April 24, and this is an e-mail to you 3 and others, and if you go to the next page, it's asking what 4 follow-up the committee has done with respect to the 5 whistleblower who had reported concerns about the CP. 6 stands for counterproliferation, correct? 7 A. Yes, it does. 8 Q. On 5 March. 9 A. No, I do not recall getting this e-mail. 10 Q. Okay. 11 of the page is a response from you to that e-mail. 12 that? 13 A. Yes. 14 Q. Okay. 15 was to ask a question regarding his complaint/assertion to the 16 Counterproliferation briefers at the next quarterly briefing. 17 I have not yet been briefed by that program, but will schedule 18 it after mark-up." And CP And do you recall getting that e-mail? And on the first page of the exhibit, in the middle Do you see And you say, "The only follow-up we had considered 19 And is it correct that as of April 25, the follow-up 20 that you had considered was asking a question about it at your 21 next regularly scheduled briefing? 22 A. Yes. 23 Q. But that had not yet happened? 24 A. Well, there's -- we have quarterly briefings on separate 25 programs, so it was regularly scheduled at that time. So Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 186 of 275 PageID# 5784 Goco - Cross 1067 1 there's no reason to schedule a, you know, special briefing on 2 the matter. 3 Q. 4 "his" here is the reference to Mr. Sterling, correct? 5 A. Yes. 6 Q. Since Mr. Sterling's claims involve extremely technical, 7 specialized nuclear designs, and the fire sets were altered by 8 our best nuclear scientists, I don't know of any way to 9 investigate further the validity of the complaint, correct? And you then go on to say, "Since his claims" -- and the 10 A. Yes. 11 Q. So in other words, you didn't really have a way to 12 investigate it other than to ask the CIA themselves, correct? 13 A. 14 know where to go. 15 Q. I'm sorry? 16 A. After that, I wasn't aware of what the next step would be. 17 Q. Okay. 18 that you got back from the CIA, so there was no next step, 19 right? 20 A. Yes, there was no next step. 21 Q. There was no, no follow-up, no further action? 22 A. Yeah. I tried to figure out what the next step would be. 23 Q. Okay. But my question is you posed the question at the 24 next quarterly briefing. 25 you, correct? That would be the first step, and after that, I didn't Well, in fact, you were satisfied with the answer You got a response that satisfied Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 187 of 275 PageID# 5785 Goco - Cross 1068 1 A. I wouldn't say it fully satisfied me. 2 wouldn't know how else to investigate the claim. 3 Q. 4 no further action? 5 A. Okay. So as a result, as far as you're aware, SSCI took As far as I'm aware, there was no action. 6 MR. POLLACK: 7 THE COURT: 8 MR. OLSHAN: 9 THE COURT: 10 The problem was I Okay. That's all I have. Thank you. Any redirect? No redirect. All right. Thank you, Mr. Goco. Your testimony is complete, and you're excused as a witness. 11 (Witness excused.) 12 MR. FITZPATRICK: 13 THE COURT: 14 MR. FITZPATRICK: Martha Lutz, Your Honor. All right. Your Honor, while the witness is 15 coming in, this would be an appropriate time to enter one of 16 our stipulations. 17 THE COURT: 18 it in as an exhibit? All right, that's fine. 19 MR. FITZPATRICK: 20 THE COURT: 21 MR. FITZPATRICK: 22 MR. OLSHAN: 23 Are you moving Yes, Your Honor. All right, what exhibit number? It's 169. Your Honor, may I speak with Ms. Gunning for one minute? 24 THE COURT: Yes, go ahead. 25 Just wait one minute, ma'am. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 188 of 275 PageID# 5786 1069 1 2 I don't want any speaking while we're giving the witness the affirmation. 3 Are you ready to go? 4 MR. MAC MAHON: 5 Honor. I'm sorry. 6 7 I think we have a Mira moment, Your THE COURT: All right. Ma'am, just stay put for one second. 8 Come on up. 9 (Sealed Bench Conference H not transcribed in this 10 volume.) 11 THE COURT: 12 MARTHA LUTZ, GOVERNMENT'S WITNESS, AFFIRMED 13 THE COURT: 14 Let's get the witness affirmed first. We'll wait on distributing these exhibits until you actually reference them, all right? 15 MR. FITZPATRICK: 16 THE COURT: 17 Fine, Your Honor. All right. And I'll have Ms. Gunning assist in doing that. 18 MR. FITZPATRICK: 19 read the stipulation into the record? 20 THE COURT: 21 MR. FITZPATRICK: Your Honor, would you like me to Yes. "Stipulation No. 9. The United 22 States, through its attorneys, and the defendant, Jeffrey 23 Alexander Sterling, and the defendant's attorneys, hereby 24 stipulate and agree as follows: 25 "The documents contained in Government Exhibit 142, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 189 of 275 PageID# 5787 Lutz - Direct 1070 1 Government Exhibit 143, Government Exhibit 144, and Government 2 Exhibit 145 were seized from Jeffrey Sterling's residence, 3 located at 1540 Rosedale Drive, O'Fallon, Missouri 63366, on 4 October 5, 2006." 5 That's the end of the stipulation, Your Honor. 6 THE COURT: 7 All right. DIRECT EXAMINATION 8 BY MR. FITZPATRICK: 9 Q. Good afternoon, ma'am. 10 A. Good afternoon. 11 Q. If you could please, I'm going to ask you to keep your 12 voice up and speak into the microphone so we all can hear your 13 answers. 14 A. My name is Martha Lutz. 15 Q. Why don't you spell your last name for the court reporter. 16 A. L-u-t-z. 17 Q. And, ma'am, where do you work? 18 A. I work for the Central Intelligence Agency. 19 Q. And how many years have you worked for the CIA? 20 A. I've worked for the CIA since 1989. 21 Q. What is your current position? 22 A. My current position is chief of the litigation support 23 unit. 24 Q. And how long have you been in that position? 25 A. I've been in this position a little bit more than two Please state your name. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 190 of 275 PageID# 5788 Lutz - Direct 1071 1 years. 2 Q. What -- prior to that position, what job did you have? 3 A. I was the information review officer for the director's 4 area of the CIA. 5 Q. And for how many years did you have that position? 6 A. I had that position for approximately 12 or 13 years. 7 Q. And do you have original classification authority? 8 A. I do. 9 Q. How long have you had that authority? 10 A. I've had that authority since I became the IRO for the 11 director's area in 1999. 12 Q. 13 classification authority. 14 A. 15 delegated from the President to the director of an agency and 16 from the director down to certain positions within the agency 17 to be able to classify information in the first instance that's 18 not been classified before in order to protect national 19 security information. 20 Q. 21 executive order? 22 A. Yes, it is. 23 Q. And are executive orders your primary source for guidance 24 in this area? 25 A. Tell the ladies and gentlemen of the jury what is original Original classification authority is the ability that's And is this authority, is this provided for by way of They are. There also, of course, is, there are agency Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 191 of 275 PageID# 5789 Lutz - Direct 1072 1 regulations that also go along and follow the executive order. 2 Q. 3 operating under? 4 A. We operate now under Executive Order 13526. 5 Q. And was there a, was there an executive order that was 6 initiated in 1995, a predecessor executive order? 7 A. There was. 8 Q. And what was that? 9 A. That was Executive Order 12958. 10 Q. What are -- do the executive orders set out three 11 classification levels for classified materials? 12 A. They do. 13 Q. And what are those three levels? 14 A. Those levels are Confidential, Secret, and Top Secret. 15 Q. And starting with Top Secret, can you tell us what the 16 definition is for Top Secret information? 17 A. 18 be released without approval, official approval, would cause 19 exceptionally grave damage to the national security. 20 Q. 21 definition of Secret? 22 A. 23 serious damage to the national security. 24 Q. 25 Confidential information? And what is the current executive order that you're Top Secret information is information that if it were to Moving down a step to Secret classification, what is the In the same scenario, Secret information would cause And then stepping down one further level, what is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 192 of 275 PageID# 5790 Lutz - Direct 1073 1 A. Confidential information would cause damage to the 2 national security. 3 Q. 4 "SCI"? 5 A. Yes, I am. 6 Q. And what is SCI? 7 A. That is Sensitive Compartmented Information. 8 Q. Can you give us a definition of what Sensitive 9 Compartmented Information is? And there's a -- what is -- are you familiar with a term 10 A. What it is, actually, within government, there are a 11 number of people who are cleared, let's say, to the Secret 12 level or even the Top Secret level. 13 is more sensitive than that. 14 Secret, for example, wouldn't be enough to protect this 15 information, and so compartments are created to provide limited 16 access to a limited number of people in order for them to be 17 able to do their job knowing what that information is about, 18 and other people are not able to know about it. 19 Q. 20 Top Secret, Secret, and Confidential, have they remained the 21 same since 1995? 22 A. Yes, they have. 23 Q. Is it possible to classify tangible things such as 24 documents as well as intangible things such as information or 25 sources and methods? There is information that Simply being cleared to Top Have the, the definitions that you've set out for us for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 193 of 275 PageID# 5791 Lutz - Direct 1 A. 1074 Yes, it is. 2 MR. FITZPATRICK: Now, Your Honor, I would like to go 3 to Government Exhibits 142, 143, 144 under the Silent Witness 4 Rule. 5 THE COURT: 6 are still classified documents. 7 this point plus the eyes of the people who are testifying and 8 the lawyers. 9 10 These documents, ladies and gentlemen, MR. FITZPATRICK: They're for your eyes only at Thank you. May we hand them out, Your Honor? 11 THE COURT: Yes. 12 MR. FITZPATRICK: 13 didn't take care of this: 14 142, 143, and 144. 15 THE COURT: And, Your Honor, the stipulation Your Honor, we are moving to admit And 145 as well or just -- are there 16 three or four exhibits in this packet that are going to the 17 jurors? 18 MR. FITZPATRICK: 19 THE COURT: 20 All right. MR. FITZPATRICK: 22 THE COURT: 23 144 are in evidence. 25 So 145 is not going in at this time? 21 24 Three. All right, that's fine. MR. MAC MAHON: objections. Not yet, Your Honor. 142, 143, and Your Honor, subject to our prior Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 194 of 275 PageID# 5792 Lutz - Direct 1075 1 THE COURT: 2 (Government's Exhibit Nos. 142 through 144 were 3 received in evidence.) 4 5 THE COURT: MR. FITZPATRICK: Your Honor, I'm waiting for the witness to get her copy. 8 9 All right, are you ready to ask your questions? 6 7 All right. THE COURT: Okay. BY MR. FITZPATRICK: 10 Q. Ma'am, do you have Government Exhibits 142, 143, and 144 11 in front of you? 12 A. I do. 13 Q. If you could just briefly take a look at those? 14 Have you previously reviewed these documents prior to 15 today? 16 A. I have done. 17 Q. And do you recognize those documents? 18 A. I do recognize these documents. 19 Q. I'm going to ask you two questions: 20 documents were originally classified, were they properly 21 classified at the Secret level? 22 A. They were. 23 Q. Standing today, are those documents today properly 24 classified at the Secret level? 25 A. Yes, I have. First, when those Yes, they are. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 195 of 275 PageID# 5793 Lutz - Direct 1 1076 MR. FITZPATRICK: Your Honor, I have no further 2 questions on these documents. 3 Q. Ma'am, you can hand them back to Ms. Gunning. 4 5 Ma'am, next I want to turn your attention to Government Exhibit No. 145. 6 THE COURT: All right, ladies and gentlemen, I'm 7 going to ask you to just pack those all up and return those 8 exhibits at this point, all right? 9 we collect these exhibits. Let's wait a minute while 10 Oh, is 145 still with the jury? 11 MR. FITZPATRICK: 12 THE COURT: 13 The purpose for those -- the jury is looking quite No, Your Honor. All right. 14 confused, and they need to understand a little context. 15 you make a proffer as to -- well, let me just tell you you'll 16 get the context for why you were shown those exhibits a little 17 bit down the road, all right? 18 exhibits is really not anything you have to worry about, all 19 right? 20 some exhibits in this case that are still classified as Secret. 21 Would But the actual content of those At this point, they wanted you to see that there are All the documents you've seen up to this point have 22 been redacted or had corrections made to them such that you 23 could see them and that they could be shown publicly. 24 Right? 25 MR. FITZPATRICK: Correct, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 196 of 275 PageID# 5794 Lutz - Direct 1 2 THE COURT: that has not happened. 1077 All right. All right. 3 MR. FITZPATRICK: 4 THE COURT: 5 There were three documents. Three. And now we're talking about the fourth, all right. 6 MR. FITZPATRICK: Your Honor, this document is not 7 under the Silent Witness Rule. 8 THE COURT: 9 Oh, all right. MR. FITZPATRICK: 11 THE COURT: Correct. All right. But again, we have copies for the jury, or is that going to go on the screen? 13 MR. FITZPATRICK: 14 THE COURT: 15 MR. FITZPATRICK: 16 move to admit Government Exhibit 145. 17 18 So this one can be discussed. 10 12 These are the four for which THE COURT: It will go on the screen. That's fine, all right. Your Honor, at this time, I would All right, the stipulation covers that, so that's in as well. 19 (Government's Exhibit No. 145 was received in 20 evidence.) 21 BY MR. FITZPATRICK: 22 Q. Ma'am, do you have Exhibit 145 in front of you? 23 A. I do. 24 Q. And are you familiar with the term "PAR"? 25 A. Yes, I am. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 197 of 275 PageID# 5795 Lutz - Direct 1078 1 Q. What is a PAR? 2 A. A PAR is a performance appraisal report. 3 Q. And are case officer PARs classified? 4 A. Yes, they are. 5 Q. And why is that? 6 A. They're classified because those reports will speak to the 7 operations that that, each case officer does, and those 8 operations will be classified operations and invariably will 9 rise to the Secret level, if not above. 10 Q. Now -- thank you, ma'am. 11 Now, I want to ask you a question based on your 12 expertise as an original classification authority, and I'd ask 13 you to listen to this question carefully, please: 14 please state the classification level for an identified CIA 15 human asset engaging in and completing specific operational 16 activities for the CIA at an overseas location? 17 MR. MAC MAHON: Your Honor, I'd object. Can you The witness 18 wasn't proffered for this testimony. 19 evidence from the asset himself, and it's unduly prejudicial at 20 this time. 21 22 23 24 25 THE COURT: They've already heard the Well, I thought this witness was going to be in an expert capacity. MR. FITZPATRICK: Is that -We've noticed her as an expert, Your Honor, and I -- yes. THE COURT: Then I'm going to permit this line of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 198 of 275 PageID# 5796 Lutz - Direct 1 questioning. 2 3 1079 MR. MAC MAHON: of the expert -- 4 THE COURT: 5 MR. MAC MAHON: 6 Well, the --- documents that we received at all, Your Honor. 7 8 This subject was not noticed in any THE COURT: Were you not told that this witness would opine about the classification level of evidence in the case? 9 MR. MAC MAHON: We were told they would testify as to 10 these exhibits that we got here but not to start making, giving 11 opinions as to the classification level of certain functions 12 and other -- I don't think that that's even an issue in the 13 case, Your Honor. 14 MR. FITZPATRICK: 15 MR. MAC MAHON: 16 Your Honor -- Classification issues don't even arise in this case. 17 MR. FITZPATRICK: Your Honor, they've had this notice 18 for this witness, which -- and the notice is identical to the 19 prior witness, which was noticed a long time ago. 20 notice that this witness would testify to a full range of 21 classification issues. 22 THE COURT: 23 objection. 24 ahead. 25 They've had This is one of them. All right, I'm going to overrule the I think it was within the scope of the notice. MR. FITZPATRICK: Go Thank you, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 199 of 275 PageID# 5797 Lutz - Direct 1080 1 Q. Ma'am, would it help you to rephrase my question, or do 2 you still remember the question? 3 A. If you could rephrase it, I'd appreciate it. 4 Q. All right. 5 level for an identified CIA human asset engaging in and 6 completing specific operational activities on behalf of the CIA 7 at an overseas location. 8 A. 9 Secret/Sensitive Compartmented Information level. Thank you. If you could please, state the classification Information of that type would be classified at the Top 10 Q. And can you explain why? 11 A. Yes, I can. 12 identifying an asset for the CIA, somebody who worked for the 13 CIA, and that would be Top Secret information. 14 cause exceptionally grave damage to the national security -- 15 Because there we are talking about MR. MAC MAHON: That would Your Honor, I'm going to object. 16 answer was as to why it's classified at a certain level. 17 we're going to get a speech as to why. 18 testimony. 19 THE COURT: The Now That's not expert I don't think it's a speech. I think 20 it's an explanation, and you can certainly probe it on cross. 21 Overruled. 22 BY MR. FITZPATRICK: 23 Q. You can continue your answer. 24 A. I guess what I would like to say is this: 25 identity of an asset is given out, that's one of the most That when the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 200 of 275 PageID# 5798 Lutz - Direct 1081 1 serious things that can happen in the agency. 2 there first of all is that that asset is immediately put in 3 danger, perhaps his family also, others with whom he has 4 friendships might be at danger. 5 What happens Additionally, other assets who work for the agency 6 might turn and look at a thing like that and say: 7 best you can do to protect us? 8 afraid I can't work for you anymore. 9 Is this the If that's the case, then I'm And finally, there are those who are thinking about 10 perhaps helping us and might see something like this. 11 creates a chilling effect for those people, too. 12 MR. FITZPATRICK: 13 Your Honor, can I publish 145, please? 14 THE COURT: 15 BY MR. FITZPATRICK: 16 Q. 17 please? Thank you, ma'am. Yes, go ahead. It's in. Earlier, ma'am, you discussed PARs. 18 It Can we go to the top, For the benefit of the jury, is this the document you 19 were referring to earlier regarding the PAR? 20 right there to your left. 21 A. You have a screen Oh, I'm sorry. 22 Yes. 23 Q. And is this the, a 1993 PAR or evaluation for Jeffrey 24 Sterling? 25 A. Yes, it is. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 201 of 275 PageID# 5799 Lutz - Cross 1 2 1082 MR. FITZPATRICK: All right, I have no further questions, Your Honor. 3 THE COURT: 4 MR. MAC MAHON: 5 All right, cross-examination? Yes. CROSS-EXAMINATION 6 BY MR. MAC MAHON: 7 Q. 8 classified as Secret, do you know? 9 A. I don't know. 10 Q. Millions? 11 A. I bet there are hundreds of thousands, yes. 12 maybe. 13 Q. 14 another, correct? 15 A. 16 CIA, yes, is classified. 17 Q. Almost everything, correct? 18 A. Well, we have an open source center that does wonderful 19 work, and that information is not classified. 20 open sources. 21 classified. 22 Q. 23 right? 24 A. Yes, it did. 25 Q. Was that classified, that sign? Ma'am, how many documents are there at the CIA that are Millions Almost everything at the CIA is classified in one way or Most of the information but not all the information at That comes from But yes, lots and lots of what we have is And the road sign off G.W. Parkway used to say "FAA," too, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 202 of 275 PageID# 5800 Lutz - Cross 1083 1 A. Not that I know of, sir. 2 Q. The 142, 143, and 144, do you remember those documents? 3 A. I do. 4 Q. Okay. 5 remember? 6 A. I don't think there was a date on those documents. 7 Q. You didn't see the date February 1987 on those documents? 8 A. I'm sorry, no, I didn't. 9 Q. And the documents deal with using telephones when What was the date on those documents, do you 10 someone's out of the office, correct? 11 MR. FITZPATRICK: 12 THE COURT: 13 it's not relevant to this case. 14 Objection, Your Honor. You can't go into the contents because MR. MAC MAHON: Just one last question, Your Honor. 15 Q. This is from 1987, correct? 16 A. Okay. Yes. 17 Q. Okay. Is this for using a rotary phone? 18 MR. FITZPATRICK: 19 THE COURT: Objection, Your Honor. Well, I think that's not giving up 20 anything. We'll allow that. 21 BY MR. MAC MAHON: 22 Q. Rotary phones in 1987, ma'am? 23 A. Yes. 24 Q. And Exhibit 145, was it your testimony based upon your 25 training and experience that this was a PAR for Mr. Sterling as Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 203 of 275 PageID# 5801 Lutz - Cross 1084 1 a case officer? 2 A. Yes. 3 Q. Okay. 4 this back up on the screen, Your Honor, the first page of 145? 5 And you know for a fact that -- if we could put Mr. Sterling wasn't a case officer on 21 October 6 1993, was he? 7 A. 8 then or at least a trainee to be a case officer at that time. 9 Q. He was a trainee to be a case officer then, right? 10 A. Um-hum. 11 Q. How did you learn that in preparing to testify? 12 A. It's an interim assignment. 13 some general knowledge of how case officers are trained and how 14 they work. 15 Q. 16 a PAR that has anything to do with anything Mr. Sterling ever 17 did as a case officer for the CIA, correct? 18 A. No, I wouldn't say that. 19 Q. As a trainee to be a case officer, is that correct? 20 A. Absolutely, yes. 21 Intelligence Agency, yes. 22 Q. 23 Program No. 1, correct? 24 25 I'm sorry, I would have thought that he was a case officer But this is not a PAR. Somebody came in. I have Your testimony now is this is not No. And doing the work of the Central And this doesn't have anything to do with Classified MR. FITZPATRICK: Objection. It's argumentative. BY MR. MAC MAHON: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 204 of 275 PageID# 5802 Lutz - Cross 1 Q. 1085 The information in Exhibit 145 -- 2 THE COURT: Wait. 3 MR. MAC MAHON: 4 THE COURT: I'm sorry, Your Honor. I'm going to allow it. It's 5 cross-examination. 6 BY MR. MAC MAHON: 7 Q. 8 shown you, none of it has anything to do with Classified 9 Program No. 1, does it? The information on any of the exhibits that counsel has 10 11 MR. FITZPATRICK: Objection. It's beyond the scope, Your Honor. We never discussed -- 12 MR. MAC MAHON: 13 THE COURT: He asked, he asked about the -- We haven't discussed them. The exhibits 14 are in evidence in a strange way. 15 question. 16 BY MR. MAC MAHON: 17 Q. 18 Program No. 1, not a single exhibit you looked at today, right? 19 A. Ma'am, they don't have anything to do with Classified No. 20 MR. MAC MAHON: 21 THE COURT: 22 Wait one second. 23 MR. MAC MAHON: 24 Mr. Pollack, Your Honor? 25 I'll allow that last THE COURT: All right. Is there any redirect? Anything further, Mr. MacMahon? Excuse me, can I consult with Go ahead. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 205 of 275 PageID# 5803 Lutz - Redirect 1 1086 MR. MAC MAHON: I'm sorry. 2 Q. Is there something specific in Exhibit 145 that reveals 3 something about Mr. Sterling's work at the CIA? 4 A. 5 we are looking for in our case officers, but specifics, no. I think it speaks to the type of operational traits that 6 MR. MAC MAHON: 7 THE WITNESS: 8 MR. MAC MAHON: 9 THE COURT: 10 That's all. Not as I read it here. That's all, Your Honor. All right. Thank you. Mr. Fitzpatrick? REDIRECT EXAMINATION 11 BY MR. FITZPATRICK: 12 Q. 13 about the date of those documents. 14 A. Um-hum. 15 Q. Those documents have -- a form of those documents are in 16 existence today, correct? 17 A. Yes. 18 Q. And -- 19 Government Exhibits 142, 143, and 144, counsel asked you MR. MAC MAHON: There's no objection. We're just 20 dealing with these very exhibits themselves, not what someone 21 might look like today, 25 years later. 22 THE COURT: 23 government is going. 24 BY MR. FITZPATRICK: 25 Q. Well, I understand where I think the I'll overrule that objection. And did that knowledge form your opinion that these Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 206 of 275 PageID# 5804 Lutz - Recross 1087 1 documents would be properly classified at the Secret level 2 today? 3 A. Absolutely. 4 Q. Now, Government Exhibit No. 145, is that document 5 redacted? 6 A. 7 here. 8 Q. 9 that document? This is redacted, yes, which is why I said as I read it Have you had an opportunity to read the unredacted form of 10 A. I have had that opportunity. 11 Q. And having had the opportunity to read the unredacted form 12 of that document, is it still your opinion that that document 13 is classified at the Secret level? 14 A. Yes, it is. 15 16 MR. FITZPATRICK: I have no further questions, Your Honor. 17 THE COURT: 18 MR. MAC MAHON: 19 Mr. MacMahon, any recross? Yeah, just briefly, Your Honor. RECROSS EXAMINATION 20 BY MR. MAC MAHON: 21 Q. 22 would still be your testimony that nothing in that document 23 discloses anything about what Mr. Sterling was doing for the 24 CIA, right? 25 A. And having read that document in its unredacted form, it I'm sorry, no, in unredacted form, I think it would speak Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 207 of 275 PageID# 5805 McManus - Direct 1088 1 to the types of things he was doing for the CIA. 2 Q. But we're not allowed to talk about that, right? 3 A. That's right. 4 MR. MAC MAHON: 5 THE COURT: 6 testimony is finished. Okay. All right. Your (Witness excused.) 8 THE COURT: 9 MR. FITZPATRICK: 10 THE COURT: Call your next witness. Kim McManus, Your Honor. All right. Do you expect this witness to take very long? 12 MR. FITZPATRICK: 13 THE COURT: 14 Thank you, Ms. Lutz. You're excused as a witness. 7 11 Thanks, Your Honor. I don't. All right, we'll have our break after this witness. 15 KIM MC MANUS, GOVERNMENT'S WITNESS, AFFIRMED 16 DIRECT EXAMINATION 17 BY MR. FITZPATRICK: 18 Q. Good afternoon, ma'am. 19 A. Kim McManus. 20 Q. And if you would, please, spell your last name for the 21 court reporter. 22 A. 23 Nancy -- u-s -- as in Sam. 24 Q. Who do you work for? 25 A. I work for the Central Intelligence Agency, Office of Please state your full name. M -- as in Mary -- c-M -- as in Mary --a-n -- as in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 208 of 275 PageID# 5806 McManus - Direct 1089 1 Inspector General, Investigations. 2 Q. 3 of Inspector General within the CIA? 4 A. Ten years. 5 Q. And how long have you worked for the United States 6 government? 7 A. Twenty-five years. 8 Q. If you could, please, explain the role of the Inspector 9 General's Office. And how long have you been within the component the Office 10 A. To conduct independent oversight of agency operations and 11 programs. 12 Q. And what is your investigative role? 13 A. I am in charge of the Headquarters Operations division, 14 and my division handled all incoming complaints into the Office 15 of Inspector General investigations. 16 Q. 17 1999 to 2002. 18 the Office of Inspector General, during that time period? 19 A. Yes. 20 Q. And can you explain to the jury how is it that a CIA 21 employee could make a referral or a complaint to the Inspector 22 General's Office? 23 A. 24 over a secure line, over an open line. 25 complaint via our Web site. Now, I want to direct your attention to the time period Are you familiar with the workings of the OIG, There's several ways. They can call us. They can call us They can submit a They can submit a complaint via Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 209 of 275 PageID# 5807 McManus - Direct 1090 1 the U.S. Mail. They can walk into our office. 2 Q. Various ways. 3 A. Yes. 4 Q. And how are the activities or the role of the Inspector 5 General, how is it publicized within the CIA community that you 6 exist and the role that you serve? 7 A. 8 that's available to all agency employees. 9 the new employee orientation, and that's agency-wide. We publicize that we exist. We have a Web site that, We -- the IG attends We 10 publicize via posters. We have a hotline that's accessible via 11 the Web site posted throughout the facilities and by outreach, 12 where we communicate via attending different functions at the 13 agency. 14 Q. 15 as part of your job? 16 A. Yes. 17 Q. And do you participate in creating records and maintaining 18 records within your recordkeeping system? 19 A. Yes. 20 Q. If you could, please, describe to us how are records 21 maintained within the Inspector General's Office? 22 A. 23 our system of records, our case management system, and that's a 24 stand-alone system, and we put the information, the facts of 25 the matter into that, into that case management system, where Ma'am, do you regularly access Inspector General records When we receive a complaint, we enter that complaint into Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 210 of 275 PageID# 5808 McManus - Direct 1 1091 it is maintained. 2 We also have a hard copy file that is the official 3 record, and that information is kept in our office, and we 4 follow the agency regulations on maintaining records. 5 Q. 6 database? 7 A. No, it's a stand-alone. 8 Q. With respect to your process or procedures when CIA 9 employees leave, is there any purging of prior records in your Is your database connected to sort of the universal CIA 10 database upon an employee leaving the CIA? 11 A. 12 follow the agency's recordkeeping, which we're required to 13 maintain records for a certain number of years. 14 certain amount of time for storage purposes, records will be 15 archived, but they still remain a part of the agency. 16 need to retrieve a record, we can do so. 17 Q. 18 determine all the complaints filed by a person by the name of 19 Jeffrey Sterling? 20 A. Yes. 21 Q. And did you conduct that search? 22 A. Yes. 23 Q. And how many results did you get? 24 A. One. 25 We do not purge when a person leaves the agency. We After a So if we Were you asked to perform a search of your records to MR. FITZPATRICK: Your Honor, I'd like to show the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 211 of 275 PageID# 5809 McManus - Direct 1092 1 witness Government Exhibit No. 34, and I'd move its admission 2 at this time. 3 MR. MAC MAHON: No objection, Your Honor. 4 THE COURT: 5 (Government's Exhibit No. 34 was received in All right, 34 is in. 6 evidence.) 7 BY MR. FITZPATRICK: 8 Q. 9 have a hard copy in front of you. I'm going to show you what's up on the screen. You also Do you recognize Government 10 Exhibit 34? 11 A. Yes. 12 Q. And tell us what that document is. 13 A. When we receive a complaint, this is the record that we -- 14 we manually enter this into our case management system as a 15 record of the facts pertaining to an allegation or complaint 16 that comes in. 17 Q. And when was this complaint received? 18 A. November of 1999. 19 Q. Would that be -- are you looking at the top left-hand 20 corner? 21 A. Oh. 22 Q. Top left-hand corner? 23 A. Right. 24 Q. Okay. 25 A. December 22, 1999. Oh, I'm sorry -- December 20, 1999. And then how -- when was it closed out? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 212 of 275 PageID# 5810 McManus - Direct 1093 1 Q. And was this the, a complaint reported to your office by 2 Jeffrey Sterling? 3 A. Yes. 4 Q. And how -- turning your attention to the paragraph that 5 begins "Allegation or issue," the first line there says "Duty 6 call received by STU-III on 19 December 1999." 7 duty call, is that one form in which individuals can make 8 complaints to the IG's Office? 9 A. Is that -- is a The complaint came in via the secure phone, which is the 10 STU-III. The duty call is we have agents who on a particular 11 day are assigned the responsibility of handling a complaint 12 that comes in for that particular day, so that's what the duty 13 call is. 14 day took this complaint. 15 Q. 16 matter raised by Mr. Sterling from the New York office? 17 A. Yes. 18 Q. Now, have you -- when you performed this search, you 19 testified this is the only document that you recovered from 20 your search? 21 A. That was the complaint. 22 Q. And so is it fair to say that there were no complaints 23 issued by Mr. Sterling to your office regarding any mishandled 24 programs? 25 A. A person who was the duty officer on that particular And does this complaint generally concern a personnel No, this is the only complaint. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 213 of 275 PageID# 5811 McManus - Cross 1094 1 Q. Would the Inspector General's Office be an appropriate 2 place to report an allegation of an alleged mishandled program? 3 A. Yes. 4 5 MR. FITZPATRICK: moment? 6 THE COURT: 7 MR. FITZPATRICK: 8 The Court's indulgence for one Yes, sir. Your Honor, I have no further questions for this witness. 9 THE COURT: 10 All right. MR. MAC MAHON: 11 Mr. MacMahon? Very briefly, Your Honor. Thank you. CROSS-EXAMINATION 12 BY MR. MAC MAHON: 13 Q. 14 Mr. Sterling's lawyers. Ma'am, my name is Edward MacMahon. 15 I'm one of Is it your testimony that the search that you would 16 do -- or that you performed at the CIA database was exhaustive? 17 A. Yes. 18 Q. So it would have found anything that dealt with 19 Mr. Sterling complaining to the Inspector General's Office? 20 A. 21 would show that in the system. 22 Q. 23 lot of backup files on computers? 24 A. We do. 25 Q. Now -- and all those files were searched to see if It would show if he filed a complaint with our office, it So the CIA has a lot of computers and a lot of backup, a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 214 of 275 PageID# 5812 McManus - Cross 1095 1 Mr. Sterling had complained at all about any program, correct? 2 A. Yes. 3 Q. Now, it says here on the second page of Exhibit 34 that 4 Mr. Sterling -- in the third full paragraph that starts 5 with "Sterling says he intends"? 6 A. Yes. 7 Q. Okay. 8 to make without reference to that, correct? 9 problems with his boss in New York, one place he could come was This was an appropriate complaint for Mr. Sterling If he was having 10 to the Inspector General, right? 11 A. Correct. 12 Q. And that's what this is, right? 13 A. Yes. 14 Q. This is entirely appropriate, correct? 15 A. Yes. 16 Q. And what it says is that Sterling intends to seek outside 17 counsel to determine if he has any additional options, correct? 18 A. Yes. 19 Q. And that's something he's entitled to do, correct? 20 A. Yes. 21 Q. And it says after acknowledging his right to seek counsel, 22 he was cautioned that his position required he discuss 23 job-related information only with a cleared lawyer -- cleared 24 counsel. 25 A. Do you see that? Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 215 of 275 PageID# 5813 McManus - Cross 1096 1 Q. That's true? 2 A. Yes. 3 Q. And it says here that Mr. Sterling acknowledged that he 4 understood those requirements, correct? 5 A. Yes. 6 Q. Okay. 7 obtained cleared counsel to file a lawsuit against the CIA? 8 A. I do not know. 9 Q. So you're not aware of any information, you didn't learn Do you know whether Mr. Sterling thereafter 10 anything that's in this case record that says Mr. Sterling ever 11 disclosed any job-related information to anyone that wasn't 12 cleared to know it, correct? 13 A. No, I'm not aware of that. 14 Q. That would be, that would be in a file if something like 15 that had happened? 16 A. 17 procedure and someone found out about that and reported to us, 18 then yes, we would look into that. 19 Q. 20 again reminded that he needs security-cleared counsel before 21 discussing job-related issues? 22 A. Yes. 23 Q. Do you see that? 24 A. Yes. 25 Q. And again, nothing ever came to your attention that You would have investigated that, correct? If it had come to our attention that he did not follow Right. And on December 22, 1999, at the bottom, he was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 216 of 275 PageID# 5814 McManus - Redirect 1097 1 Mr. Sterling ever discussed his job-related issues with anyone 2 who wasn't entitled to hear that information, correct? 3 A. Correct. 4 MR. MAC MAHON: 5 THE COURT: 6 MR. FITZPATRICK: 7 THE COURT: 8 9 That's all. Thank you, Your Honor. Any redirect? Very briefly, Your Honor. Yes, sir. REDIRECT EXAMINATION BY MR. FITZPATRICK: 10 Q. When you searched your database, in addition to using 11 Mr. Sterling's true name, did you also search under his 12 CIA-assigned aliases? 13 A. Yes. 14 Q. Any and all aliases? 15 A. Yes. 16 Q. And did you also get a negative result? 17 A. Correct. 18 MR. FITZPATRICK: 19 THE COURT: 20 MR. MAC MAHON: 21 THE COURT: 22 your testimony. Mr. MacMahon, anything further? 25 No, Your Honor. All right, thank you, Ms. McManus, for You're excused as a witness. 23 24 Nothing further, Your Honor. (Witness excused.) THE COURT: after four. We'll take our afternoon break until 10 Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 217 of 275 PageID# 5815 1098 1 (Recess from 3:55 p.m., until 4:10 p.m.) 2 (Defendant present, Jury out.) 3 THE COURT: All right, what's the issue? 4 don't want to hold the jury up. 5 MR. OLSHAN: Because I Very briefly, Your Honor, there -- one 6 of the elements that the government must establish as to 7 Counts 1 and 20 is that members of the general public who are 8 not authorized to receive classified information, in fact, did 9 via publication of the book. One of our exhibits is Barnes & 10 Noble's sales records showing that the book was shipped to 11 various Barnes & Noble retail stores throughout Eastern -- 12 throughout Northern Virginia and that the book was sold. 13 We do have a witness who is a hairdresser who will 14 say, "I read the book. 15 The reason we know who this person is is because Special Agent 16 Hunt in 2006, after the book was published, observed that the 17 hairdresser, her hairdresser had the book. 18 I don't have a security clearance." Fast-forward four years later, 2010, this case is 19 approaching indictment. 20 tells this hairdresser, her hairdresser, "I work for the FBI. 21 Do you recall reading this book?" 22 read the book. 23 Special Agent Hunt for the first time The woman confirmed that she The sole purpose of her testimony is: 24 clearance and I read the book. 25 THE COURT: I don't have a All right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 218 of 275 PageID# 5816 1099 1 MR. OLSHAN: We've asked the defense if they would 2 stipulate to that fact, which we think you can infer already 3 from the sale of the book throughout Northern Virginia. 4 defense has suggested they are not willing to stipulate to that 5 testimony. 6 THE COURT: Look, if they're not going to, you need 7 to put the witness on. 8 I'm aware of that's going to be a problem, right? 9 MR. OLSHAN: There's no hairdresser privilege that Your Honor, if there were, this would be 10 the case where there would be. 11 THE COURT: 12 And you can't cross into anything about the hairstyle or coloring or anything like that, all right? 13 Let's get the jury in. 14 MR. POLLACK: 15 THE COURT: 16 MR. FITZPATRICK: 17 Ms. Hunt's hairdresser and not mine. 18 THE COURT: 19 THE COURT: You may invoke it, Special Agent Hunt. Just to be clear, Your Honor, it's I understand. All right, Mr. Fitzpatrick, who is your next witness? 22 23 So there is a privilege. (Jury present.) 20 21 The MR. FITZPATRICK: Thank you, Your Honor. Mr. Reju Kurian. 24 THE COURT: All right, Mr. Kurian. 25 MR. FITZPATRICK: Your Honor, I believe this is going Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 219 of 275 PageID# 5817 1100 1 to be another appropriate time to do two stipulations. 2 THE COURT: 3 REJU KURIAN, GOVERNMENT'S WITNESS, AFFIRMED 4 MR. FITZPATRICK: 5 All right, go ahead. Your Honor, before I begin with the witness, should I read the stipulations? 6 THE COURT: 7 MR. FITZPATRICK: 8 at Government Exhibit 162. 9 the top, the first two paragraphs are pertinent to this 10 witness. Yes, go ahead. Your Honor, this Stipulation No. 2, For purposes of this witness, only I may as well just read the entire stipulation. 11 THE COURT: Go ahead. 12 MR. FITZPATRICK: "The United States, through its 13 attorneys, and the defendant, Jeffrey Alexander Sterling, and 14 the defendant's attorneys, hereby stipulate and agree that 15 business records reflect the following: 16 2006, Jeffrey Sterling was the subscriber for the following MSN 17 e-mail addresses: 18 jsthe7th@hotmail.com. 19 From 2003 through jeffreys@hotmail.com and second, "From 2003 through 2005, James Risen was a subscriber 20 for AOL e-mail address jrisen" -- that's r-i-s-e-n -- 21 "@aol.com. 22 e-mail address jrisen@newyorktimes.com. 23 During this period, James Risen also used the work "While living at 13455 Farmcrest Court, Herndon, 24 Virginia, Jeffrey Sterling was the subscriber for Verizon 25 telephone 703-793-9388. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 220 of 275 PageID# 5818 1101 1 2 3 4 5 6 7 "From 2003 through 2005, James Risen was the subscriber for Verizon telephone 301-977-9159. "From 2003 through 2005, James Risen was the subscriber to cellular telephone No. 301-208-2580. "From 2004 through 2005, James Risen was the subscriber to cellular telephone No. 240-994-9524. "From 2003 through 2005, the telephone number for the 8 Washington, D.C., office of The New York Times was 9 202-862-0300. 10 "From June 2004 through 2005, Jeffrey Sterling's 11 telephone number at his office in St. Louis, Missouri, was 12 314-923-4274, and his business cellular telephone number was 13 314-479-3563." 14 And then, Your Honor, continuing to Stipulation No. 15 4, at Government Exhibit 164, "The United States of America, 16 through its attorneys, and the defendant, Jeffrey Alexander 17 Sterling, and the defendant's attorneys, hereby stipulate and 18 agree as follows: 19 "On or about August 16, 2006, at the request of the 20 FBI, John and Lora Dawson voluntarily provided the following 21 personal computer to the FBI, which has been maintained since 22 that time pursuant to standard FBI evidence handling 23 procedures, including anytime during which it was submitted for 24 forensic analysis by FBI personnel: 25 "One Packard Bell L100 personal computer, bearing Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 221 of 275 PageID# 5819 Kurian - Direct 1102 1 serial No. P493907180, and containing Seagate Hard Drive 2 ST33210A, bearing serial No. 5AB11AEB." 3 THE COURT: 4 All right. DIRECT EXAMINATION 5 BY MR. FITZPATRICK: 6 Q. Good afternoon, sir. 7 A. Good afternoon. 8 Q. I'm going to ask you to keep your voice up and speak into 9 the microphone so we can all hear your answers. 10 A. Good afternoon. 11 Q. Thank you. 12 A. My name is Reju Kurian, R-e-j-u, last name is Kurian, 13 K-u-r-i-a-n. 14 Q. And, sir, how are you employed? 15 A. I'm employed as an information technology specialist, 16 forensic examiner with the Federal Bureau of Investigation. 17 Q. 18 Investigation? 19 A. I was working for the bureau for more than 11 years. 20 Q. And how long have you been in your current position as an 21 information technology specialist? 22 A. 23 11 years. 24 Q. 25 responsibilities as a forensic examiner of computers. Please state your name. How long have you worked for the Federal Bureau of I was an information technology specialist for more than Okay. And do you -- give a brief description of your job Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 222 of 275 PageID# 5820 Kurian - Direct 1103 1 A. As a computer forensic examiner, I participate in search 2 and seizures. 3 media, and as for the examination, I will produce, examine, and 4 process for case agents and prosecutions for presented in the 5 court of law. 6 Q. 7 FBI, do you routinely go through training procedures regarding 8 your profession? 9 A. Yes. 10 Q. And how often do you go through training procedures? 11 A. At the beginning of the program, I underwent more than 450 12 hours of forensic training as part of the certification. 13 Q. And are you certified as a forensic examiner? 14 A. Yes. 15 Q. And you're, you're originally from India; is that correct? 16 A. Yes. 17 Q. And did you attend university in India? 18 A. Yes. 19 Q. Do you have a degree? 20 A. Yes. 21 Q. What is your degree? 22 A. I have a Bachelor's Degree in Electronics and 23 Communication Engineering in 1986. 24 Q. 25 attend a graduate program? I will identify, preserve, and examine digital And, sir, during the course of your employment with the Thank you. When you came to the United States, did you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 223 of 275 PageID# 5821 Kurian - Direct 1104 1 A. Yes. 2 Q. And where is that? 3 A. I took my Master's of Science in Computer Science from 4 Illinois Institute of Technology, Chicago. 5 Q. And do you have a Master's of Science from there? 6 A. Yes. 7 Q. And in what program? 8 A. It's computer science. 9 Q. Have you also received training at Johns Hopkins 10 University? 11 A. Yes. 12 Q. And what -- do you have a certificate? 13 A. Yes. 14 Q. And what is that certificate from Johns Hopkins 15 University? 16 A. 17 a post-master's certificate in computer science. 18 It's an advanced certificate in computer science, which is MR. FITZPATRICK: Your Honor, I'm offering Mr. Kurian 19 as an expert in the forensic examination of computer hard 20 drives and related technology. 21 THE COURT: 22 MR. MAC MAHON: 23 THE COURT: Any objection? No objection, Your Honor. All right, he's so certified. And, 24 ladies and gentlemen, what that basically means is we usually 25 don't let people testify to their opinion. However, if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 224 of 275 PageID# 5822 Kurian - Direct 1105 1 somebody is deemed to be an expert based either upon 2 specialized training or experience and is deemed an expert, 3 then we allow that person to give his or her opinion, but you 4 as the jury are the fact-finders, and you are free to accept or 5 disregard any or all of any expert's opinion, particularly if 6 you feel it's not based on sufficient foundation or for other 7 reasonable reasons, and I'll give you more specific instruction 8 on that later. 9 All right, go ahead. 10 MR. FITZPATRICK: Thank you. 11 Q. Sir, do you recall -- I want to direct your attention back 12 to 2006, specifically September of 2006. 13 asked to perform a forensic examination by Special Agent Hunt 14 and her colleague, Special Agent Gregory? 15 A. Yes. 16 Q. And when you took that assignment, did you receive a piece 17 of computer equipment? 18 A. Yes. 19 Q. And where did you get that equipment? 20 A. After getting the service request for forensic examination 21 of the evidence item, I went to the Washington Field Office 22 evidence control room, and I checked out the evidence from 23 evidence control room. 24 Q. 25 case that Special Agent Hunt asked you to examine? Do you recall being And was it -- you checked out the evidence specific to the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 225 of 275 PageID# 5823 Kurian - Direct 1106 1 A. Yes. 2 Q. And did you take that back to your examination station? 3 A. Yes. 4 Q. And what is -- describe -- what's the first step in the 5 process when you are going to examine the hard drive of a 6 computer? 7 A. 8 control room. 9 machine. First I will check out the evidence from the evidence I will take that computer to my examination I will physically examine the computer, and physical 10 examination means I will check out -- I will check whether the 11 barcode of the evidence item matches with the request, and I 12 matched that one and then started processing the evidence. 13 Q. So you had the right computer? 14 A. Yes. 15 MR. FITZPATRICK: All right. Your Honor, I'm going 16 to ask the witness questions about 157, 158, 159, and 160. 17 move them into admission at this time. 18 THE COURT: 19 MR. MAC MAHON: 20 THE COURT: 21 MR. MAC MAHON: 22 No objection, Your Honor. 23 THE COURT: 24 (Government's Exhibit Nos. 157 through 160 were 25 I'd Any objection? Just a second, Your Honor. All right. The Court's indulgence? All right, all four are in evidence. received in evidence.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 226 of 275 PageID# 5824 Kurian - Direct 1107 1 BY MR. FITZPATRICK: 2 Q. 3 show -- if you could please take a look at 157, please? 4 see 157 in front of you? 5 A. 157? 6 Q. What does that reflect in 157? 7 A. That's the hard drive inside the computer. 8 Q. And when you received the computer from evidence control, 9 did you remove the hard drive? Mr. Kurian, with the assistance of Mr. Wood, I want you to Do you Yes. What is that? 10 A. Yes. 11 Q. And is this a photocopy of the hard drive? 12 A. Yes. 13 Q. And there are some notes to the left there. 14 those notes? 15 A. 16 That is a marking I noted down on this photostat copy. 17 Q. And why do you do that? 18 A. That is, that is a practice because when we start the 19 physical examination, I have a digital forensical sheet where I 20 will note down all the information from the computer, so I 21 noted down some of the information, which is on this photostat 22 copy, also. 23 Q. 24 drive, do you -- what's the next step that you take after your 25 initial evaluation? What are I noted down some of the connections on the left side. Now, when you perform a forensic examination on a hard Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 227 of 275 PageID# 5825 Kurian - Direct 1108 1 A. After initial evaluation, including a completion of the 2 digital forensical sheet, I will write-block the hard drive and 3 start imaging the hard drive to a forensically clean hard 4 drive. 5 Q. 6 drive? 7 A. 8 examiner, meaning computer analysis and response team member, 9 as per the standard of procedures, we will not start working on And why do you, why do you make an image of the hard Because this is original evidence, so when as a CART 10 the original evidence. So I need to make a copy or clone of 11 the original hard drive before I start the examination. 12 why I started with the image of the original hard drive. 13 Q. 14 the hard drive that you made? 15 A. 16 containing the image of the hard drive from the original 17 computer. 18 Q. 19 a clean hard drive disc; is that correct? 20 A. Yes. 21 Q. Are there security measures in place to make sure that you 22 have properly copied from the original hard drive to the image? 23 A. 24 cleaned, and after that, once I complete the image, I will have 25 a digital fingerprint which matches with the original, That's And does 158 reflect your notation regarding the image of Yes. 158 reflects the photocopy of the hard drive Are there security -- and when you make the image, you use Yes. First, the destination hard drive is forensically Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 228 of 275 PageID# 5826 Kurian - Direct 1109 1 fingerprint of the original hard drive, which is what we call 2 is an MD5 hash. 3 Q. 4 the hard drive that you made in this case? 5 A. Yes. 6 Q. And what was your result? 7 A. The result matches with the, with the MD5 of the original 8 hard drive. 9 Q. And did you perform that security measure on the image of So you were satisfied that you had a perfect match in the 10 image of the original hard drive? 11 A. Yes. 12 Q. Is there a tool that you use called FTK? 13 A. Yes. 14 Q. And what is that? 15 A. FTK is the Forensic Toolkit developed by AccessData for, 16 for examination of the digital evidence. 17 Q. 18 and her colleague provided you with some keywords to search 19 for; is that correct? 20 A. Yes. 21 Q. Prior to doing that, did you, did you scan the image and 22 get an idea of the contents of that hard drive? 23 A. 24 the hard drive, I, as I said earlier, I use the write blocker, 25 and I use my forensic tool and produce the output for case Now, there came a point in time when Special Agent Hunt The normal process is once I get the request to examine Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 229 of 275 PageID# 5827 Kurian - Direct 1110 1 agent to review. 2 keyword search to be done, so I put the keyword searches in, 3 and the results were available for case agent to review. 4 Q. 5 When you did the initial review of the image of the hard drive, 6 did you, did you make an impression on the size of the hard 7 drive? 8 A. Yes. 9 Q. And can you tell us within the hard drive, what is All right. So before that, the case agent requested the And we'll go through those in just a second. It was a very small hard drive. 10 allocated space? 11 A. 12 space allocated to a file. 13 Q. 14 Do you understand my question? 15 A. Can you repeat that one, please? 16 Q. Sure. 17 logic to it, or are there identified files? 18 A. Yes. 19 Q. And what is within a hard drive, what is unallocated or 20 drive-free space? 21 A. 22 allocated to any file. 23 Q. 24 where does it go? 25 A. Inside the computer hard drive, allocated space is the And is there a logical identification to allocated space? Within allocated space on a hard drive, is there a Unallocated or drive-free space is the space which is not And when information is deleted from allocated space, Once a user deletes a hard drive, meaning -- deletes a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 230 of 275 PageID# 5828 Kurian - Direct 1111 1 file in the hard drive, it goes to the unallocated space. 2 Q. 3 unallocated space, all of that data remains on the hard drive; 4 is that correct? 5 A. Yes, that's correct. 6 Q. All right. 7 exhibits. But regardless of whether it is allocated space or Now, I'm going to be showing you a series of 8 And, Your Honor, at this time, I'll be showing the 9 witness Exhibits 117, 119, 120, 121, 122, 123, 124, 126, and 10 146, and I would move them for admission at this time. 11 THE COURT: 12 MR. MAC MAHON: 13 THE COURT: 14 Any objection? No, Your Honor. All right. So just to make sure, 117, 119, 120 through and including 123 -- I'm sorry, 124, 126, 146. 15 MR. FITZPATRICK: Correct, Your Honor. 16 THE COURT: 17 (Government's Exhibit Nos. 117, 119, 120 through 124, All right, they're all in. 18 126, and 146 were received in evidence.) 19 BY MR. FITZPATRICK: 20 Q. 21 did you consult with Special Agent Hunt, and did she provide 22 you with some keywords to search the hard drive with? 23 A. Yes. 24 Q. And did -- was one of the words "Merlin"? 25 A. Yes. Now, Mr. Kurian, after you did your initial examination, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 231 of 275 PageID# 5829 Kurian - Direct 1 Q. 1112 I'd ask that you turn, please, to Government Exhibit 146. 2 Do you have 146 in front of you? 3 A. Yes. 146, yes. 4 Q. Now, do you see -- and you have a screen to your left 5 there. 6 There's a -- on the screen, there's a highlighted portion that 7 says "Q:\MERLIN," and then the string continues. 8 that? 9 A. Yes. 10 Q. When you performed your keyword search "Merlin" on this 11 hard drive, did you get that result? 12 A. Yes. 13 Q. And where did you find that result? 14 A. That result was found in drive-free space. 15 Q. Did this file exist, or was it accessed by the hard drive? 16 A. This is a drive-free space, which is an unallocated file. 17 Q. And -- that's fine. You can look either at the exhibit or the screen. Do you see We'll move on. 18 If we can now turn to Exhibit 117, please? 19 Oh, before we turn to that, what does the 20 identification Q:\, what does that indicate to you? 21 A. 22 logical drive in a partition. When I, when I look at this Q:\MERLIN, probably maybe a 23 MR. MAC MAHON: 24 maybe" is not an accurate opinion. 25 THE COURT: Your Honor, I object. I agree with that. "Probably Rephrase the question Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 232 of 275 PageID# 5830 Kurian - Direct 1113 1 and let's see about the answer. 2 BY MR. FITZPATRICK: 3 Q. 4 was formed? 5 "logical"; is that correct? 6 A. Yes. 7 Q. If you used the term "logical," does that mean it is 8 purposely created? 9 A. Yes. 10 Q. Okay. 11 A. Yes. 12 Q. When you did the search on this, was this string the only 13 thing that you located? 14 A. 15 particular output. 16 Q. 17 string, or is it an indication that one may have existed? 18 A. No, I did not see any document with the name Merlin.doc. 19 Q. Do you have an opinion as to whether or not a document 20 could have existed with this logical file? Can you -- do you have an opinion as to how that file was, Was there an actual document or file associated with this MR. MAC MAHON: 25 Your Honor, objection to form, and it's beyond the scope. 23 24 By an individual, by a person? For this particular keyword search, I located this 21 22 In other words, does -- you used the phrase THE COURT: I think I'm going to sustain that objection. MR. FITZPATRICK: All right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 233 of 275 PageID# 5831 Kurian - Direct 1114 1 THE COURT: Yeah. 2 MR. FITZPATRICK: Thank you, Your Honor. 3 Q. Now, if we can move to 117? 4 A. Yes. 5 Q. Do you have 117 in front of you? 6 A. Yes. 7 Q. Now, the document that we looked at previously, 146, you 8 used a tool called dtSearch for that; is that correct? 9 A. Yes. 10 Q. After your initial request from Special Agent Hunt, did 11 you use another tool called EnCase? 12 A. Yes. 13 Q. And among those search terms that you were asked to use 14 with this tool called EnCase, was one of them "Risen"? 15 A. Yes. 16 Q. And when you used this tool and did a search for "Risen," 17 is what's reflected in Exhibit 117 a result from that? 18 A. Yes. 19 Q. Now, up on the screen, I have the document, and the jury 20 can see it. 21 the hard drive, when it finds the search term, does it assign a 22 number to it? 23 A. Yes. 24 Q. And what does that -- and where is the number on 25 Government Exhibit 117? Does the, does the tool that you used to search Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 234 of 275 PageID# 5832 Kurian - Direct 1115 1 A. It's, it's -- the item was marked as item No. 93. 2 Q. And does the contents here in Government Exhibit 117 or 3 your item No. 93, does this all come out of the same cluster? 4 A. 5 space, so it can be from the same cluster, or it can not be 6 from the same cluster. 7 Q. Describe, what is a cluster within unallocated space? 8 A. Basically, when you store data, the operating system gives 9 some clusters for the file to use, so that is a unit for 10 This, this information is coming from the unallocated storage. 11 12 THE COURT: A cluster is a unit of storage? Is that what you said? 13 THE WITNESS: A cluster is a -- Your Honor, when, 14 when a file was allocated, suppose if the file needs three -- 15 depending on the size of the file, the operating system 16 allocates some number of clusters. 17 THE COURT: All right. 18 BY MR. FITZPATRICK: 19 Q. 20 the unallocated space, what happens when it reaches the 21 unallocated space to the data? 22 A. Can you rephrase that question, please? 23 Q. Sure. 24 within a computer? 25 A. When data moves from the allocated space on a computer to Is there any logical reasoning to unallocated space When the user deletes a file which is in the active file, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 235 of 275 PageID# 5833 Kurian - Direct 1116 1 it goes to the unallocated space. 2 Q. And when it does that, does it do that randomly? 3 A. Yes. 4 Q. So looking at Government Exhibit 117, do you see the term 5 at the top highlighted in orange? 6 A. Yes. 7 Q. "Jrisen@aol.com"? 8 A. Yes. 9 Q. And then that is repeated again. 10 A. Yes. 11 Q. And then there is a series of data as you sort of cascade 12 down, progress down the page. 13 A. Yes. 14 Q. And then if you get to about three-quarters of the way 15 down the page, there is a date, a day, a month -- a day, week, 16 a month, a day, and a year. 17 23, 2003"? 18 A. Yes. 19 Q. And shortly following that, is there another e-mail 20 address that says "jsthe7th@hotmail.com"? 21 A. Yes. 22 Q. Now, turning to the next page, as you progress down -- 23 now, we're still in file unit 93, correct? 24 A. Yes. 25 Q. There's language that states, "can we get together in Do you see that? Do you see that? Does that say "Tuesday, December Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 236 of 275 PageID# 5834 Kurian - Direct 1 early january? 2 1117 jim." Do you recognize that? 3 A. Yes. 4 Q. Given the proximity of that highlighted data that I just 5 read to you, do you have an opinion as to whether that was one 6 unified message? 7 8 MR. MAC MAHON: Your Honor, I'm going to object to foundation. 9 THE COURT: Well, I think he put in enough 10 foundation, but the proper question is to a reasonable degree 11 of scientific certainty, so ask your question correctly. 12 BY MR. FITZPATRICK: 13 Q. 14 certainty, the highlighted data that I had in that, does that 15 go together in a, in a logical way? 16 A. 17 So this content is from the unallocated space. 18 Q. 19 does that suggest to you? To a reasonable degree of forensic examination scientific When a file is deleted, it goes to the unallocated space. And the proximity of that data that is highlighted, what 20 MR. MAC MAHON: 21 THE COURT: Same objection, Your Honor. Well, all right, as I understand it, tell 22 me if I'm wrong, so when you delete a file, the information 23 that was in that file literally gets just spread throughout the 24 unallocated space that is available to absorb that information; 25 is that right? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 237 of 275 PageID# 5835 Kurian - Direct 1 THE WITNESS: 2 THE COURT: 1118 Yes. Yes, that's correct. All right. So the question is are you 3 able when you see this smattering of information in the 4 unallocated space, can you draw any conclusions about the 5 original message? 6 THE WITNESS: It is randomly allocated in unallocated 7 space, so I cannot say the top section is part of the bottom 8 section. 9 THE COURT: 10 BY MR. FITZPATRICK: 11 Q. All right, that's the answer. So let's now move to Government Exhibit 121. 12 MR. MAC MAHON: Your Honor, I'm sorry, we would move 13 to strike. 14 this exhibit coming in in the form that it is. 15 says he can't link the top to the bottom. 16 I thought there was going to be a foundation for THE COURT: Now the witness Well, he may not be able to link it, but 17 it's still found within this hard drive, and that's 18 sufficiently relevant to this case. 19 objection. 20 So I'm overruling the Go ahead, Mr. Fitzpatrick. 21 BY MR. FITZPATRICK: 22 Q. Do you have 121 in front of you? 23 A. Yes. 24 Q. And was this document also identified by you in the 25 unallocated space? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 238 of 275 PageID# 5836 Kurian - Direct 1119 1 A. Yes, that's correct. 2 Q. And was it in -- did the case program that you used create 3 the 103 file? 4 A. Yes, 103 is the item number created by the tool. 5 Q. And the highlighted data as we progress down the page was 6 all in proximity to each other when you found this data; is 7 that correct? 8 A. Yes, that's correct. 9 Q. It's highlighted "Saturday," and then there is another 10 e-mail address, "jsthe7th@hotmail.com"; is that correct? 11 A. Yes. 12 Q. And then continuing to the next page -- and this is still 13 within the file 103, correct? 14 A. Yes. 15 Q. There is a message, "I want to call today. 16 write the story. 17 I'm trying to jim." Is that correct? 18 A. Yes. 19 Q. Within the rest of the file, in the unallocated space, 20 there is interspersed random data; is that correct? 21 A. Yes, that's correct. 22 Q. And a lot of this random data is gibberish; is that 23 correct? 24 A. Yes. 25 Q. But the, the e-mail addresses and the, the statements on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 239 of 275 PageID# 5837 Kurian - Direct 1 the second page, that's logical, correct? 2 3 1120 MR. MAC MAHON: testimony. 4 Your Honor, that's not part of expert He's just reading the exhibit now. THE COURT: Well, the real question is there's a lot 5 of leading going on to which you are not objecting. 6 sustain the objection. So I'll 7 And, Mr. Fitzpatrick, you need to lead less. 8 MR. FITZPATRICK: Thank you, Your Honor. 9 Q. If we could turn to, please, Exhibit 122? 10 A. Yes. 11 Q. Do you have 122 in front of you? 12 A. Yes. 13 Q. Now, can you tell us what a swap file is? 14 A. A swap file is a file which is given by the operating 15 system to expand the memory. 16 Q. So do you have 122 in front of you? 17 A. Yes. 18 Q. And again, at the beginning, this is a result of a keyword 19 search that you performed on the image hard drive; is that 20 correct? 21 A. Yes. 22 Q. And this is in a unique file created by the program 23 No. 23; is that right? 24 A. Yes. 25 Q. Working down the page, is this the form of the data when Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 240 of 275 PageID# 5838 Kurian - Direct 1121 1 you recovered it from the hard drive? 2 A. Yes. 3 Q. And when you said that the swap file is -- you mentioned 4 memory; is that correct? 5 A. Yes. 6 Q. And explain how the swap file interacts with the 7 computer's memory. 8 A. 9 system may need to make a decision depending on the performance 10 of the computer, so it may allocate some area of the hard drive 11 as swap file so that some data in the memory can be stored 12 there. The computer will have some memory, but the operating So technically, it's an expansion of the memory. 13 THE COURT: When you say expansion, does that mean 14 that the data that was in the unallocated space on the hard 15 drive is transferred to this swap memory? 16 THE WITNESS: No. Unallocated is already 17 unallocated. 18 which is going to the actual file, which is windows 19 386.swapfile, which is actually an allocated file. 20 This is the contents inside the RAM or the memory THE COURT: All right. 21 BY MR. FITZPATRICK: 22 Q. 23 drive of the computer that you searched? 24 A. Yes. 25 Q. Now, going back to when you -- the initial search revealed But that data that we just saw, that existed on the hard Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 241 of 275 PageID# 5839 Kurian - Direct 1122 1 the Q:\MERLIN string; is that correct? 2 A. Yes. 3 Q. When you identified that, did you save that to a 4 particular disc? 5 A. Yes. 6 Q. All right, I want to show you Government Exhibit 159. 7 THE COURT: Is there any objection to 159? 8 MR. MAC MAHON: 9 THE COURT: No, Your Honor. All right, it's in. 10 BY MR. FITZPATRICK: 11 Q. What is this, 159, the disc there? 12 A. Yeah, 159 is the disc I created containing the keyword 13 search results from the image of the hard drive. 14 Q. 15 contain the second keyword results that you obtained from 16 EnCase? 17 A. Okay. And then 160, does that also, does that disc also Yes. 18 THE COURT: 19 MR. MAC MAHON: 20 THE COURT: 21 MR. FITZPATRICK: 22 Any objection to 160? No, Your Honor. All right, it's in. The Court's indulgence for one moment? 23 THE COURT: 24 BY MR. FITZPATRICK: 25 Q. Yes, sir. Mr. Kurian, we've discussed in the results that you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 242 of 275 PageID# 5840 Kurian - Direct 1123 1 identified several e-mail strings; is that correct? 2 A. Yes. 3 Q. When e-mails are deleted from a, by way of using a 4 particular computer, do they randomly go to the unallocated 5 space? 6 A. Yes. 7 Q. So will e-mails go to any particular cluster, or will it 8 just be a random selection? 9 10 MR. MAC MAHON: Your Honor, I think that's asked and answered. 11 THE COURT: No, I'll permit it. Overruled. 12 BY MR. FITZPATRICK: 13 Q. Do you understand my question? 14 A. Yes. 15 Q. All right, what's the answer? 16 A. It can be random because once you delete a file, it goes 17 in unallocated space. 18 deleted, but the data is still in unallocated. 19 in unallocated, there's a structure, but the link is gone, but 20 inside the unallocated, there's a structure. 21 So the reference of the file has been At that point, So suppose if the person wanted to recover the data. 22 Only the link is needed to recover the data because the link is 23 still there. 24 deletes more, it overwrites the unallocated. 25 and then the contents are also overwritten, so there is no way But after some time, if the user uses more and So link is gone, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 243 of 275 PageID# 5841 Kurian - Direct 1 1124 you can recover the data. 2 So just like what you said when you delete the 3 e-mail, initially the e-mail may be inside the unallocated, but 4 subsequently if the deletion happens, maybe it is a document 5 deleted, so at that point, it overwrites the unallocated which 6 contains the e-mail. 7 Q. 8 is effectively gone? 9 A. Yes. 10 Q. But the data contained here that you've identified still 11 remained? 12 A. So if it's -- if there's an override, then that data is, Yes, that's correct. 13 MR. MAC MAHON: 14 THE COURT: 15 Objection. Leading, Your Honor. That was leading, so I'll sustain the objection. 16 MR. FITZPATRICK: I'll move on, Your Honor. Thank 17 you. 18 Q. Government Exhibit -- turn back to 122, please. 19 A. 122. 20 Q. When EnCase, the tool you used -- correct? 21 A. Yes. 22 Q. How does it assign the number when it identifies a search 23 term? 24 A. This is the item number. 25 Q. To what area of data? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 244 of 275 PageID# 5842 Kurian - Direct 1125 1 A. 2 of the tool, the item number is 23, but if you look into the 3 bottom, you can identify the cluster number or the offsets. 4 technically, if you look at this jrisen@aol.com, you can 5 identify the offset from the cluster. 6 MR. FITZPATRICK: 7 Your Honor, I have no further questions at this time. 8 THE COURT: 9 MR. FITZPATRICK: 10 This is an item number. When, when you look at the screen So That's fine. All right. Mr. MacMahon? Your Honor, if you'd just indulge me for one second? 11 THE COURT: Go ahead. 12 BY MR. FITZPATRICK: 13 Q. 14 recovered that you've identified, do you recall that? 15 A. Yes. 16 Q. The fact that you were able to recover it, does that mean 17 it has not been overwritten? 18 A. Yes. 19 Q. Taking that a step further, does that mean that the 20 content of the e-mails that had been delivered also remain in 21 the unallocated space? 22 23 24 25 Just one follow-up question: MR. MAC MAHON: The data that you have Your Honor, objection. He's already answered that question several times. THE COURT: Well, I think it's been a little difficult to understand, so I'm going to overrule the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 245 of 275 PageID# 5843 Kurian - Cross 1126 1 objection. 2 BY MR. FITZPATRICK: 3 Q. Do you understand that question? 4 A. Yes. 5 Q. And what's the answer? 6 A. Answer is yes, meaning what you are saying is once you 7 delete an e-mail, it's going to the unallocated space, right? 8 Q. I'm asking you. 9 A. Can you repeat that question, please, then? 10 Q. Yes. 11 A. It goes to unallocated space. 12 Q. And the fact that you're able to identify the contents 13 within when you did your search indicates what to you? 14 A. When you delete an e-mail, where does it go? It's not overwritten. 15 MR. FITZPATRICK: 16 THE COURT: 17 MR. MAC MAHON: 18 Thank you. All right, Mr. MacMahon. Thank you, Your Honor. I apologize for not sitting down. 19 20 Okay. THE COURT: That's all right. It probably felt better for you to be standing up. 21 MR. MAC MAHON: 22 I'm trying, Your Honor. CROSS-EXAMINATION 23 BY MR. MAC MAHON: 24 Q. 25 one of the lawyers for Mr. Sterling. Sir, you were given -- my name, I'm Edward MacMahon. I'm Good afternoon. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 246 of 275 PageID# 5844 Kurian - Cross 1 1127 You were given a whole bunch of search terms to look 2 for, correct? 3 A. Yes. 4 Q. And you were asked to look for "State of War," and you 5 found nothing, right? 6 A. 7 to the case agent, and I may have to look at the notes whether 8 I found any hit for that particular term or not. 9 Q. What all keyword searches was done, the output was given You didn't do any report where you found something that 10 said that "State of War" was in the file, right? 11 A. Okay. 12 Q. And the same for "fire set," correct? 13 A. I may need to check my notes. 14 Q. "New York Times," "TBA-480," there's no report that says 15 you found any of those -- any responses to any of those words, 16 right? 17 A. Yes. 18 Q. And the -- if -- how old is the hard drive that you looked 19 at? 20 A. Old. 21 Q. It's Exhibit 157. 22 Mr. Francisco would put up Exhibit 157? 23 A. It's a very old hard drive. 24 Q. It's a very old hard drive. 25 A. Yes. Can you rephrase that question, please? Let's see if we can try that way. If Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 247 of 275 PageID# 5845 Kurian - Cross 1128 1 Q. 2 look to see who the users were that had made use of this hard 3 drive? 4 And when you did your analysis of the hard drive, did you MR. FITZPATRICK: 5 foundation for that. 6 THE COURT: Objection, Your Honor. There's no It's beyond the scope. Well, it may be beyond the scope, but I'm 7 going to permit it because I think it certainly would be 8 relevant, so overruled. 9 BY MR. MAC MAHON: 10 Q. Well, let me ask you this; I'll try it a different way: 11 How old is this hard drive? 12 A. 13 That's all I can -- 14 Q. In early '90s? 15 A. Can be. 16 Q. Can be. 17 A. It's an old hard drive. 18 Q. And were you asked to look when you examined this hard 19 drive to see how many people had used this hard drive over 20 time? 21 A. I didn't examine this hard drive. 22 Q. Did you look to see if there was any log files that would 23 show when a certain e-mail or a document was deleted? 24 A. No, I did not do a, examine that particular -- 25 Q. And you weren't asked to do an examination to see when and Sometime from the -- The size is very small, so it's very, very old hard drive. Is that your answer? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 248 of 275 PageID# 5846 Kurian - Cross 1129 1 if any of these files were even created, correct? 2 A. Can you rephrase that question again? 3 Q. You weren't asked to do an examination of the hard drive 4 to see if there -- if you could determine when any particular 5 file was created on the computer, correct? 6 A. 7 listing which records all the creation date of all the files. 8 Q. 9 "log file" a term that -- would that be the right term? As a part of the examination process, I create a file Okay. 10 And how far back did those log files go? Let me try again. Is that Hopefully, we're not talking past 11 each other, but that computer would have log files on it which 12 shows when people are on it and not, correct? 13 A. The hard drive contains an operating system. 14 Q. Right. 15 A. And the operating system keeps track of who uses the 16 computer. 17 Q. 18 examination in this case? 19 A. I did a registry report as part of the examination. 20 Q. And how far back -- when did the first person use the, use 21 the hard drive to your knowledge? 22 A. I did not check on that particular question. 23 Q. All right. 24 created, when files were deleted at all, even though there are 25 log files that create that -- that maintain that information on Right. And were you asked to examine that as part of your And you didn't check on when files were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 249 of 275 PageID# 5847 Kurian - Cross 1130 1 the computer, correct? 2 A. 3 contains all the date modified, date created, and other 4 information which you are asking here. 5 Q. 6 using the computer at any particular time, correct? 7 A. Yes, that's correct. 8 Q. And with respect to the, the Exhibit 146, which is Q/ -- I 9 don't have it in front of me. As I said earlier, I created the file listing which Right. But you didn't analyze that to determine who was 10 THE COURT: 11 MR. MAC MAHON: 12 THE COURT: 13 MR. MAC MAHON: 14 THE WITNESS: I'm going to not say it right. Q:\. Thank you, Your Honor. MERLIN. MERLIN. Yes. 15 BY MR. MAC MAHON: 16 Q. That's something you did find in your search, correct? 17 A. Yes, that's correct. 18 Q. But you can't tell this jury any information as to when 19 since this computer was first put into service in the '90s 20 until when you did the examination, when that event occurred at 21 all, correct? 22 A. Which event are you talking about? 23 Q. Whatever, whatever is on here. 24 you weren't asked to find out when it was that that file was 25 created, correct? Q:\MERLIN, you can't -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 250 of 275 PageID# 5848 Kurian - Cross 1131 1 A. This was a keyword search hit. 2 Q. All right, let me try again. 3 that a network drive is being used, correct? 4 A. 5 indicates possibly a logical drive. 6 Q. Possibly a what? 7 A. Logical drive. 8 Q. And what is a logical drive? 9 A. Okay. First of all, Q indicates For a computer science person, if I look at it, Q:\ In a computer, as a user, he can divide the hard 10 drive into different parts. So suppose if I need to divide the 11 hard drive into different parts. 12 partition, which is assigned maybe to Q number, and the rest of 13 the partition can be another number. 14 Q. Right. 15 A. So this is a logical partition I'm talking about. 16 Q. And that would take somebody that was pretty good with a 17 computer to partition the hard drive and set up a file started, 18 called Q, correct? 19 A. 20 logical partitions. 21 Q. 22 to look at any of the log files to see if anybody even created 23 a folder called Q:\MERLIN, were you? 24 A. No. 25 Q. And you can't tell this jury to any degree of certainty I can give a logical As a user, probably already the system comes with the Okay. In any of the log files, you were never even asked Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 251 of 275 PageID# 5849 Kurian - Cross 1132 1 whatsoever what that means, correct? 2 A. 3 space, which is Q:\MERLIN\MERLIN.DOC. 4 Q. 5 particular time when this occurred, you can't tell this jury 6 anything about that, can you? 7 A. 8 examined that computer. 9 Q. This was a keyword search, and I got a hit in drive-free But as to who was sitting at the computer at any This particular string was inside the computer when I All right. But from that day going all the way back to 10 the day the computer was first put into service, you can't tell 11 the jury when it was that this was -- 12 MR. FITZPATRICK: 13 MR. MAC MAHON: 14 Asked and answered. He hasn't answered the question, Your Honor. 15 THE COURT: Well, that means he can't say. He's 16 answered the question in that respect. 17 BY MR. MAC MAHON: 18 Q. You can't say? 19 A. No, I examined this hard drive, and the hard drive 20 contains this Q:\MERLIN\MERLIN.DOC. 21 MR. MAC MAHON: 22 23 24 25 Is that your answer, sir? Let me try one more time, Your Honor. I think I -MR. FITZPATRICK: Objection, Your Honor. He's answered the question. THE COURT: No, he hasn't answered it, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 252 of 275 PageID# 5850 Kurian - Redirect 1133 1 Mr. Fitzpatrick. 2 BY MR. MAC MAHON: 3 Q. 4 files as to when events take place that the user of the 5 computer is doing? 6 A. It's in the registry file, yes. 7 Q. And in the registry file, you weren't asked to and you 8 didn't find any file that said when this file was created, 9 correct? 10 A. Didn't you testify before that a computer creates log No. 11 MR. MAC MAHON: 12 THE COURT: 13 MR. FITZPATRICK: 14 That's all, Your Honor. Thank you. All right, any redirect? Thank you, Your Honor. REDIRECT EXAMINATION 15 BY MR. FITZPATRICK: 16 Q. 17 files in the allocated space? 18 A. Allocated space, yes. 19 Q. You found files in the allocated space? 20 A. Yes. 21 Q. And the files that we've gone over -- the files that we've 22 discussed today were all deleted files, correct? 23 A. Yes. 24 Q. The -- Mr. MacMahon asked you about the log files. 25 those have been -- when you performed your keyword search, When you performed your keyword searches, did you find any Would Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 253 of 275 PageID# 5851 Kurian - Redirect 1134 1 would those have been identified in the log-in? 2 A. 3 have got a positive hit on that particular portion of the hard 4 drive. 5 Q. 6 computer, correct? 7 A. Yes. 8 Q. And are you a special agent? 9 A. No. 10 Q. Do you get into the deep background of investigations? 11 A. No. 12 Q. And whose responsibility is that? 13 A. Yes. 14 Q. All right. 15 I believe that's Government Exhibit -- let's talk about that -- 16 123. If there is this file in the log in the hard drive, it may You don't -- your role in this process is to examine a 17 18 The swap file that we discussed earlier -- and MR. MAC MAHON: Your Honor, I didn't ask the witness anything about the swap file. 19 20 Is that Agent Hunt? THE COURT: You didn't, but this has been fairly technical, and I'll give you some leeway on recross. 21 MR. MAC MAHON: 22 THE COURT: Thank you, Your Honor. I'll overrule the objection. 23 BY MR. FITZPATRICK: 24 Q. This document, where was this document located? 25 A. 124? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 254 of 275 PageID# 5852 Kurian - Recross 1135 1 Q. 123. 2 A. Yes. 3 Q. And where is the, where is the swap file located on a hard 4 drive? 5 A. 6 win386.swp. 7 Q. 8 is the swap file located? 9 A. It's an allocated file. 10 Q. Earlier -- and is this the file that you found in 11 allocated space? 12 A. Yes. 13 Q. Does a -- describe what the function is of the swap file 14 within allocated space. 15 A. 16 depending on the performance of the computer to copy some of 17 the data from the memory into the swap file. 18 Q. 19 for deleted information? 20 A. 21 22 Was that in a swap file? In the hard drive, the swap file was located by the name And with respect to the space within the hard drive, where As I mentioned earlier, the operating system decides Does -- if data ends up in a swap file, is that also used It can contain the deleted information, also. MR. FITZPATRICK: questions for you. 23 MR. MAC MAHON: 24 THE COURT: 25 Mr. Kurian, I have no further Just briefly, Your Honor. Yes, sir. RECROSS EXAMINATION Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 255 of 275 PageID# 5853 Kurian - Recross 1136 1 BY MR. MAC MAHON: 2 Q. 3 in the case, but you do take instructions as to what to do from 4 the FBI, don't you? 5 A. 6 this evidence. 7 Q. 8 you to look through the entire computer, correct? 9 A. Yeah. 10 Q. Not just the unallocated space or swap files. 11 supposed to look at everything, correct? 12 A. Yes, that's correct. 13 Q. And in that search, you still didn't come up with a log 14 file that told you when any of these e-mails we looked at were 15 created, correct? 16 A. 17 for? 18 Q. 19 computer? 20 Mr. Kurian, I understand that you're not a special agent I got the service request to perform a CART examination on So when Special Agent Hunt asked you to look, she asked That is a request to look into the hard drive. You were Can you repeat, what is a log file you are, you are asking Did you look in the actual, in the hard drive of the Let me ask you a different question. Did you find 21 any log files -- were you instructed, excuse me, to find any 22 log files that showed when the Q drive was created? 23 A. That was not in the request. 24 Q. So to the -- standing here today, you can't tell this jury 25 when, if at all, that file was ever created, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 256 of 275 PageID# 5854 Kurian - Recross 1137 1 A. The file you are talking about is Q.MERLIN? 2 Q. Yes. 3 A. That was a keyword search in a drive-free space. 4 Q. I'm saying you can't tell the jury when that file was 5 opened, correct? 6 A. 7 space. I cannot say that this is a keyword hit from a drive-free 8 9 MR. MAC MAHON: Honor. THE COURT: All right. THE WITNESS: 13 THE COURT: 14 Thank you. You're excused. (Witness excused.) 15 THE COURT: 16 MR. OLSHAN: Call your next witness. Your Honor, the government calls Julia Perriello. 18 THE COURT: 19 MR. OLSHAN: I'm sorry, who? Perriello, P-e-r-r-i-e-l-l-o. 20 the witness we just discussed. 21 THE COURT: 22 list, but go ahead and get her. 23 MR. OLSHAN: 24 25 Thank you, sir, for your testimony. 12 17 And if -- that's all I have, Your Thank you. 10 11 When it was created at all, correct? All right. That's Mr. Wood, she's not on our My apologies. JULIA PERRIELLO, GOVERNMENT'S WITNESS, AFFIRMED MR. OLSHAN: May I proceed, Your Honor? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 257 of 275 PageID# 5855 Perriello - Direct 1 1138 THE COURT: 2 Yes, sir. DIRECT EXAMINATION 3 BY MR. OLSHAN: 4 Q. Good afternoon, ma'am. 5 A. Hi. 6 Q. If you could, please state and spell your name for the 7 record. 8 A. It's Julia Perriello, J-u-l-i-a P-e-r-r-i-e-l-l-o. 9 Q. Is it Perriello or "Perriello"? 10 A. "Perriello." 11 Q. "Perriello"? 12 A. Yes. 13 Q. Can you tell the jury how you're employed? 14 A. I'm a hairdresser. 15 Q. How long have you been a hairdresser? 16 A. Thirty-five years. 17 Q. Ms. Perriello, are you familiar with the book State of 18 War, The Secret History of the CIA in the Bush Administration, 19 by James Risen? 20 A. Yes, sir. 21 Q. Have you read that book? 22 A. Yes, sir. 23 Q. And did you read every chapter of that book? 24 A. Yes, sir. 25 Q. Including a chapter that dealt with a specific operation How do you pronounce it? Ms. Perriello, are you employed currently? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 258 of 275 PageID# 5856 Perriello - Direct 1139 1 to undermine the Iranian nuclear program? 2 A. Yes, sir. 3 Q. Ms. Perriello, do you have a security clearance? 4 A. No. 5 Q. Do you live in the Eastern District of Virginia? 6 A. Yes. 7 Q. Where do you live? 8 A. Alexandria. 9 Q. And when you read this book, did you live in Alexandria at What city? 10 the time? 11 A. Yes. 12 Q. To the best of your recollection, did you read the book 13 soon after it came -- after it was published? 14 A. Yes. 15 Q. That was approximately 2006? 16 A. Yes. 17 Q. Ms. Perriello, do you know Special Agent Ashley Hunt? 18 A. Yes. 19 Q. And how do you know Special Agent Ashley Hunt? 20 A. I've cut her hair several times. 21 Q. At some point, did Special Agent Hunt ask you whether you 22 had read this book? 23 A. Yes. 24 Q. Prior to talking to you about whether you had read the 25 book State of War, did you have any idea that Special Agent Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 259 of 275 PageID# 5857 Perriello - Direct 1140 1 Hunt was an FBI special agent? 2 A. No. 3 Q. Did you have any idea what she did for a living? 4 A. No. 5 MR. OLSHAN: 6 THE COURT: 7 One moment, Your Honor? How did you obtain the book; do you remember? 8 THE WITNESS: 9 THE COURT: Either Borders or Barnes & Noble. 10 THE WITNESS: 11 THE COURT: 12 THE WITNESS: 13 THE COURT: 14 THE WITNESS: 15 THE COURT: 16 THE WITNESS: 17 THE COURT: 18 THE WITNESS: So you bought the book? 19 Yeah, I bought the book. And was that here in Virginia? Yes. In Alexandria? Fairfax? Possibly, or Bowie. Or? Bowie, Maryland. All right. My boyfriend lives in Clinton, and we go up to Bowie sometimes. 20 THE COURT: 21 THE WITNESS: But you read it in Virginia? I think so, yeah. 22 BY MR. OLSHAN: 23 Q. Did you have it in your place of business? 24 A. Yes. 25 Q. And where is that? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 260 of 275 PageID# 5858 Perriello - Cross 1141 1 A. The salon I work at? 2 Q. Yes. 3 A. It's in Alexandria. 4 Q. Did anyone from the FBI tell you to read that book? 5 A. No. 6 MR. OLSHAN: 7 THE COURT: 8 MR. MAC MAHON: 9 That's all I have, Your Honor. All right, Mr. MacMahon? Very briefly, Your Honor. CROSS-EXAMINATION 10 BY MR. MAC MAHON: 11 Q. Good afternoon, ma'am. 12 A. Hi. 13 Q. I'm Edward MacMahon, one of Mr. Sterling's lawyers. 14 Is it your testimony you bought the book in Bowie, 15 Maryland? 16 A. It was probably Virginia, but it might have been in Bowie. 17 Q. So you don't really remember, do you? 18 A. Not which bookstore I bought it at, no. 19 Q. Not -- 20 A. There were several Borders and Barnes & Nobles. 21 Q. But you don't remember whether you bought it here in 22 Virginia or whether you bought it in Maryland, correct? 23 A. 24 25 Correct. MR. MAC MAHON: That's all I have, Your Honor. Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 261 of 275 PageID# 5859 Scherlis - Direct 1142 1 THE COURT: 2 MR. OLSHAN: 3 That's all for Ms. Perriello. 4 THE COURT: 5 testimony. 6 Thank you. (Witness excused.) THE COURT: 9 MR. OLSHAN: All right, your next witness? Your Honor, our next witness, just so the Court's aware, will not finish in the next 15 minutes. 11 THE COURT: All right, we can get him started. We're doing quite well. 13 14 Ms. Perriello, thank you for your THE WITNESS: 8 12 One moment, Your Honor. You're free to leave. 7 10 Any redirect? MR. OLSHAN: Okay. The government's next witness is Gayle Scherlis. 15 THE COURT: All right. 16 GAYLE SCHERLIS, GOVERNMENT'S WITNESS, AFFIRMED 17 DIRECT EXAMINATION 18 BY MR. OLSHAN: 19 Q. Good afternoon, ma'am. 20 A. Good afternoon. 21 Q. If you could, please state and spell your name, and 22 remember to move close to that microphone. 23 A. Gayle Scherlis, G-a-y-l-e, last name is S-c-h-e-r-l-i-s. 24 Q. Ms. Scherlis, are you currently employed? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 262 of 275 PageID# 5860 Scherlis - Direct 1143 1 Q. Can you tell the jury where you currently work? 2 A. Trader Joe's. 3 Q. Prior to your -- prior to working at Trader Joe's, did you 4 have a career at the CIA? 5 A. Yes. 6 Q. How long did you work at the CIA? 7 A. Twenty-nine years. 8 Q. Can you tell the jury a little bit about what you did 9 while you were at the CIA? 10 A. Yes. I was a security officer, and as a security officer, 11 we changed jobs every several years, so I had a variety of 12 assignments. 13 did briefings, debriefings, and was assigned to several 14 components, and that entailed doing all the security-related 15 work for the component. 16 Q. 17 form or another a security officer? 18 A. Yes. 19 Q. You testified that you did briefings and debriefings. 20 you outline for the jury what a briefing is? 21 A. Yes. 22 Q. What do you mean by that? 23 A. Briefings can be many different things. 24 sometimes related to a component, a program that's going on. 25 So it would be briefing a person what the program was all I was a background investigation adjudicator; I The entire time that you were at the CIA, were you in one Can Briefings are Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 263 of 275 PageID# 5861 Scherlis - Direct 1 1144 about. 2 Debriefings were either a person was no longer going 3 to be employed by the CIA or no longer having access to a 4 program. 5 Q. 6 access, for example, to a program? 7 A. 8 secrecy agreement forever and couldn't divulge classified 9 information. So it was a twofold debriefing. And what's the purpose of that briefing as far as their To remind the individual that they were still bound by the 10 THE COURT: That's for a debriefing, ma'am; is that 11 right? 12 BY MR. OLSHAN: 13 Q. 14 with respect to reminding someone; is that correct? 15 A. Yes. 16 Q. And was that something that would occur in a debriefing or 17 a briefing or both? 18 A. Both. 19 Q. Is there a particular briefing that occurs on an employee 20 the very first day at the CIA? 21 A. Yes. 22 Q. And what's the nature of that briefing? 23 A. It's a security briefing indoctrinating the individual 24 into security compartments and advising the individual of their 25 responsibilities as a CIA employee. To the, to the Court's point, your answer just now was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 264 of 275 PageID# 5862 Scherlis - Direct 1145 1 Q. I'm going to show you five different exhibits during the 2 course of your testimony. 3 79, which are not in evidence yet, Your Honor. They are Exhibits 1 through 4 and 4 THE COURT: 5 MR. MAC MAHON: 6 No objection as to 1 through 4, Your Honor. 7 THE COURT: 8 (Government's Exhibit Nos. 1 through 4 were received 9 The Court's indulgence, Your Honor? All right, they're in. MR. OLSHAN: And for the witness's benefit, we will be focusing on 1 through 4 to begin with. 12 MR. MAC MAHON: 13 THE COURT: 14 1 through 4 and 79. in evidence.) 10 11 Any objection? And none to 79, Your Honor. All right. All five are in, but probably today only 1 through 4. 15 MR. MAC MAHON: Thank you, Your Honor. 16 (Government's Exhibit No. 79 was received in 17 evidence.) 18 BY MR. OLSHAN: 19 Q. 20 first day, they have their initial security briefing; is that 21 correct? 22 A. Yes. 23 Q. And do they sign what's called a secrecy agreement on that 24 day? 25 A. Ms. Scherlis, you just testified that on an employee's Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 265 of 275 PageID# 5863 Scherlis - Direct 1146 1 Q. Does every CIA employee do that? 2 A. Yes. 3 Q. If we can publish Exhibit 1? 4 So you'll have it in the binder, Ms. Scherlis, but it 5 will also be on the screen to your left, whichever is easier 6 for you. 7 A. Okay. 8 9 MR. OLSHAN: And, Mr. Francisco, if we could just start off by highlighting the first three paragraphs? 10 Q. Ms. Scherlis, do you recognize that as a standard secrecy 11 agreement? 12 A. Yes. 13 Q. And just to be clear, this is a two-page document? 14 A. Yes. 15 Q. Whose name appears on the top of this document? 16 A. Jeffrey Alexander Sterling. 17 Q. Have you ever met Mr. Sterling? 18 A. Yes. 19 Q. Do you see him in the courtroom today? 20 A. Yes. 21 Q. And were you involved in the process of having 22 Mr. Sterling execute this first document? 23 A. No. 24 Q. And briefly, if you could flip to the second page, does it 25 appear to be executed? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 266 of 275 PageID# 5864 Scherlis - Direct 1147 1 A. Yes. 2 Q. And what's the date? 3 A. 14 May 1993. 4 Q. If we could go back to the first page, please? 5 In the first paragraph, Ms. Scherlis, does it 6 indicate that this agreement is a prerequisite to being 7 employed by the CIA? 8 A. Yes. 9 Q. In order to have employment, you have to sign the secrecy 10 agreement? 11 A. Yes. 12 Q. And if you could read paragraph 2? 13 A. "I understand that in the course of my employment or other 14 service with the Central Intelligence Agency, I may be given 15 access to information or material that is classified or is in 16 the process of a classification determination in accordance 17 with the standards set forth in Executive Order 12356 as 18 amended or superseded, or other applicable executive order, 19 that if disclosed in an unauthorized manner would jeopardize 20 intelligence activities of the United States government. 21 accept that by being granted access to such information or 22 material, I will be placed in a position of special confidence 23 and trust and become obligated to protect the information 24 and/or material from unauthorized disclosure." 25 Q. I Ms. Scherlis, Executive Order 12356 is referenced in that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 267 of 275 PageID# 5865 Scherlis - Direct 1148 1 paragraph. Do you see that? 2 A. Yes. 3 Q. And does that executive order deal with classification, if 4 you're aware? 5 A. Yes. 6 Q. Take a look at paragraph 3. 7 this agree with respect to disclosure of any of the information 8 that they obtain from the CIA? 9 A. What does the person signing Agree to never disclose in any form or manner to any 10 person unauthorized. 11 Q. 12 abide by in order to, if they would like to disclose classified 13 information? 14 A. Yes. 15 Q. Okay. 16 paragraphs 4 through 6, there's reference in those paragraphs 17 to the Publications Review Board. 18 describe for the jury what do those paragraphs outline? 19 And so are there appropriate mechanisms that somebody can And, for example, if you could take a look at MR. MAC MAHON: 20 disrespect. 21 cumulative. 22 Your Honor, I don't mean any We heard from the PRB on this. THE COURT: 23 is in evidence. 24 themselves. 25 In your own words, can you Very, very briefly. This is somewhat Again, the exhibit The jury will be able to read it for MR. OLSHAN: I won't, I won't belabor the portion Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 268 of 275 PageID# 5866 Scherlis - Direct 1 1149 regarding the PRB, just that it's in here. 2 THE COURT: All right, that's fine. 3 BY MR. OLSHAN: 4 Q. 5 describe what this initial secrecy agreement says about the 6 publication process? 7 A. 8 any book, any manuscript, any information. 9 Q. So if you could just very briefly for the jury's benefit An employee must get the approval of the PRB in writing If you could take a look at paragraph 7? Does that 10 paragraph describe who possesses, who owns the property that is 11 the classified information somebody's going to obtain on their 12 job? 13 A. Yes. 14 Q. Can you read that paragraph? 15 A. "I understand that all information or material that I may 16 acquire in the course of my employment or other service with 17 the Central Intelligence Agency that fits either of the 18 categories set forth in paragraph 3 of this agreement are and 19 will remain the property of the United States government unless 20 and until otherwise determined by an appropriate official or 21 final ruling of a court of law. 22 constituting, containing, or reflecting such information or 23 material upon demand by an appropriate official of the Central 24 Intelligence Agency, or upon the conclusion of my employment or 25 other service with the Central Intelligence Agency." I agree to surrender anything Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 269 of 275 PageID# 5867 Scherlis - Direct 1150 1 Q. So what is somebody supposed to do if they leave the 2 agency, what are they supposed to do with the information that 3 they possess, any documents? 4 A. 5 the agency. 6 Q. 7 some of those appropriate avenues for disclosure of information 8 related to the CIA? 9 A. Yes, yes. 10 Q. What does paragraph 9 say about where someone can go if 11 they have, if they have a concern, for example? 12 A. It identifies the places that a person can go to report. 13 Q. Which include? 14 A. Sure. 15 President or any successor body that the President may 16 establish or to the Select Committee on Intelligence of the 17 House of Representatives or the Senate or the -- 18 Q. Is there any reference to the Inspector General? 19 A. Yes. 20 Central Intelligence. 21 MR. OLSHAN: Any documents must be returned in when they're departing Take a look at paragraph 9. Does paragraph 9 set forth Intelligence Oversight Board established by the Agency's Inspector General or to the Director of If we can flip to the second page of 22 Exhibit 1, please, Mr. Francisco? 23 Q. 24 Focusing on the last sentence of that paragraph, does this 25 secrecy agreement put an individual on notice as to the If you could take a look at paragraph 10, Ms. Scherlis? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 270 of 275 PageID# 5868 Scherlis - Direct 1151 1 potential consequences of violating it? 2 A. Yes. 3 Q. What does it say? 4 A. "Further, I understand that the disclosure of information 5 that I have agreed herein not to disclose can, in some 6 circumstances, constitute a criminal offense." 7 Q. 8 to -- or what does 13 say regarding the, the duration of this 9 agreement? Moving down to paragraph 13, does 13 have any reference How long does it last? 10 A. 11 at all times thereafter. 12 Q. 13 employment and after? 14 A. Yes. 15 Q. And if you could read what paragraph 18 says? 16 A. "I make this agreement in good faith, and with no purpose 17 of evasion." 18 During employment with the Central Intelligence Agency and So this secrecy agreement binds an employee during their THE COURT: All right, it's 5:30. 19 logical point to stop at. 20 trying to keep you on a predictable schedule. 21 This might be a Ladies and gentlemen, again, I am I had Ms. Guyton, my courtroom deputy, give you a 22 phone number. They're talking possibly of weather issues 23 tomorrow morning, so what I will need is if any of you, if we 24 do have weather and there is any problem that any of you 25 foresee in getting here, you can call us to let us know using Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 271 of 275 PageID# 5869 1152 1 that number. 2 If for any reason the federal government is opening 3 late, I would have this case start at 10:00 to give you a 4 little extra time to get in here. 5 be a problem for you, call us as quickly as you can. 6 if we can make arrangements to get you here, all right? 7 hoping we don't have an issue, but I just wanted to make that 8 plan. 9 If, however, that's going to We'll see I'm Again, folks, please continue to follow my 10 instructions. You've been a great jury. 11 been moving this case, and am I correct that it's likely the 12 government may rest tomorrow? 13 MR. OLSHAN: 14 THE COURT: I can tell you we've Very likely. All right, which means the government's 15 evidence will be completed, we think, by close of business 16 tomorrow, which is Wednesday. 17 It is very possible you may get this case for 18 deliberation late Thursday or Friday. 19 you might need all of the following week. 20 sure, take several days to think about this case, but I just 21 don't want you to worry about February, all right? 22 moving effectively. 23 I had warned you that I mean, it will, I'm We are I also don't yet know what time I'm going to ask you 24 to be here on Friday. I have other cases I'm trying to see how 25 I work them in, but you should definitely plan to be here on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 272 of 275 PageID# 5870 1153 1 Friday. 2 I'm just not sure what time we'll start yet. Thank you very much. 3 evening. 4 need to take up. I want to stay in session. 5 6 You're free to go for the There are some matters we (Jury out.) THE COURT: All right, I think there may have been a 7 CIPA issue which we maybe can do at the bench if it's not 8 complicated, all right? 9 You-all have a seat for a second. I did want to start talking a little preliminarily 10 about jury instructions because I know juries hate a long 11 break, and I really don't think one is necessary here. 12 going to ask the government to resend me their instructions 13 with no headings and no citations, just clean, all right? 14 I'm I, frankly, have gone over the government's 15 instructions pretty carefully over the weekend. 16 an aiding and abetting instruction, although almost all of your 17 counts have a Section 2 added. 18 you jettisoning any aiding and abetting theory in this case? 19 It certainly makes it easier for the jury. 20 I did not see I might have missed it, but are You don't have to answer tonight. Think about it 21 overnight, but you should let me know first thing tomorrow 22 morning, all right? 23 MR. OLSHAN: We will, Your Honor. 24 THE COURT: The second thing is -- 25 MR. MAC MAHON: You have a witness in the box, ma'am. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 273 of 275 PageID# 5871 1154 1 2 THE COURT: Oh, I'm sorry, ma'am. tonight. 3 THE WITNESS: 4 THE COURT: 5 Thank you. Please be back here at 9:30 tomorrow morning. 6 THE WITNESS: 7 THE COURT: 8 You may leave for Thank you. Unless there's a weather issue. Then it will be 10:00. 9 (Witness stood down.) 10 THE COURT: All right, in terms of the other issue, 11 the defense -- and I haven't gone through all of them, but 12 you're objecting to the government giving a summary of the 13 charge. 14 indictment in with the jury. 15 in or I'm giving the government's proposed instructions. 16 I'll give you two choices. I don't normally send the Either I'm sending the indictment We've always given an overview for a jury in jury 17 instructions as to what the counts are. 18 want the indictment going in. 19 Mr. MacMahon? 20 MR. MAC MAHON: 21 22 I'm sure you don't Can we talk about it tonight, Your Honor? THE COURT: All right. But, I mean, that was your -- 23 you know, you had that objection to several of the, of the 24 instructions. 25 The venue instruction, I'm thinking of actually Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 274 of 275 PageID# 5872 1155 1 combining the two, the one you-all just submitted plus the 2 defendant's. 3 with the venue instruction. 4 has promised that you would get me a proposed verdict form as 5 soon as possible. 6 So I'd like your feedback on proceeding that way Other than that, the government Now, again, things could change. Not all counts may 7 necessarily go to the jury. 8 the defendant is going to testify or not testify, so obviously, 9 the instructions are in play until the end of the case, but I 10 You know, we don't know whether want to have them as well prepared as possible. 11 So right now, most of the government's instructions, 12 there were a few words here and there that needed some 13 changing, look to me to be solid, and I didn't see, you know, I 14 didn't see any strong substantive objections from the defense. 15 So that's why I want a clean set from you-all that I can work 16 be off of because, you know, I have to give the jury copies of 17 the written instructions, all right? 18 19 The CIPA matter, should we take up now? at the bench, or do I have to clear the courtroom? 20 21 Can we do it MR. MAC MAHON: Yes, Your Honor, if you want to. It's very brief. 22 THE COURT: 23 (Sealed Bench Conference I not transcribed in this 24 25 All right, let's come up here then. volume.) THE COURT: All right, we'll recess for the day. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 491 Filed 08/17/15 Page 275 of 275 PageID# 5873 1156 1 2 (Recess from 5:58 p.m., until 9:30 a.m., January 21, 2015.) 3 4 5 6 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 7 8 9 /s/ Anneliese J. Thomson 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595