UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 0900, 2 15 February 2018.] 3 MJ [Col SPATH]: Commission is called to order. All the 4 parties are present who were present yesterday, and General 5 Martins is not here, as was the case yesterday; so that's 6 fine. 7 8 9 10 Mr. Miller. TC [MR. MILLER]: We were going to ask permission. Thank you, Your Honor. MJ [Col SPATH]: That's fine. You are more than welcome 11 to -- as long as you have one counsel here, I just have to 12 account for them on the record. 13 being transmitted? 14 TC [MR. MILLER]: 15 MJ [Col SPATH]: 16 17 18 19 20 Is -- are the proceedings They are, Your Honor. All right. And do we have somebody to account for Mr. al Nashiri's absence, to explain? TC [MR. MILLER]: Yes, we do, Your Honor, and Colonel Wells will handle that matter. MJ [Col SPATH]: Great. Let's do it. And it's going to be 375J, Juliet, Colonel Wells. 21 MATC [COL WELLS]: 22 MJ [Col SPATH]: 23 MATC [COL WELLS]: Yes, sir. Thank you. Thank you. Your Honor, good morning. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12117 May I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 approach the witness? MJ [Col SPATH]: You may. 3 MAJOR, U.S. ARMY, was called as a witness for the prosecution, 4 was reminded of his oath, and testified as follows: 5 DIRECT EXAMINATION 6 Questions by the Managing Assistant Trial Counsel [COL WELLS]: 7 Q. Major, good morning. 8 A. Good morning, sir. 9 Q. You appeared before this commission before, and I 10 remind you you're still under oath. I've passed you what has 11 been marked Appellate Exhibit 375J. It's three pages. 12 see it? Do you 13 A. I do see it. 14 Q. Did you have occasion to meet with the accused this 15 morning? 16 A. I did meet with the accused this morning. 17 Q. Okay. 18 A. I did speak to him. 19 Q. And what did you tell him? 20 A. I got there. Did you speak with him? I advised him -- I introduced myself. 21 Said hello to -- to Mr. al Nashiri. 22 bunk. 23 morning. He was laying in his I advised him he had a military commission this He said he understood. I asked him if he would be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12118 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 coming to the military commission, and he advised that he did 2 not want to come to the military commission. 3 He asked me if I knew if this was going to be the 4 last day or if we were going to go tomorrow, and I said I'm 99 5 percent sure that today would be the last day. 6 "There's always a slim chance we could go tomorrow." 7 he said he didn't want to come to the commission; he wanted me 8 to let his attorneys know that if anything important happens 9 today, they can simply write him a letter and let him know. 10 11 12 Q. Were you able to speak with his attorney before this session? A. 14 lobby. 15 Q. 17 And then But he didn't want to come. 13 16 I said, Before court started I talked to him out in the Okay. And then did he record his decision not to come today using this form? A. He did. So I advised him that I had to read the form 18 to him, and he actually said I should just record my voice and 19 play it every day because it would save me some time. 20 read him both pages and asked him if he had any questions, and 21 he said he had no questions. 22 along with the Arabic version. 23 version, and he signed and dated page 2 of the document above But I And then, again, he had followed I read him the English UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12119 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 the word "ACCUSED." Q. In this process were you able to form an opinion 3 whether or not he was exercising his right not to attend 4 today's session voluntarily? 5 A. I do. I believe that after I read the document to 6 him he had no questions; he signed the document. 7 he did voluntarily waive his right to attend the commission. 8 I then advised him that if he wanted to go to a legal meeting 9 today he could do that. So I believe And I told him that Dr. Crosby was on 10 island, if he wanted to meet her, and he thought about that 11 and again said, "I'll meet with her next time. 12 anything important, have her or the attorney write me a 13 letter." 14 15 MATC [COL WELLS]: Okay. If there's Your Honor, may I approach the witness? 16 MJ [Col SPATH]: 17 MATC [COL WELLS]: You may. Thanks. I've retrieved Appellate Exhibit 375J 18 and returned it to the court reporters, and they've now passed 19 it to the judge. 20 some questions. Thank you, Major. 21 WIT: 22 MJ [Col SPATH]: 23 DDC [LT PIETTE]: The commission may have Yes, sir. I don't. Defense Counsel, any questions? Thank you, Your Honor. No questions. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12120 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 MJ [Col SPATH]: As always, thanks for your testimony. You're excused. WIT: Thanks, Judge. [The witness was excused.] MJ [Col SPATH]: I again find Mr. al Nashiri has waived 6 his right to be present at this pretrial hearing knowingly, 7 intelligently, and consciously, and it's voluntary. 8 9 10 11 Let me get a couple updates, see where we're at. Any update regarding Mr. Koffsky, at least the capability to have the video teleconference this afternoon? MATC [COL WELLS]: Yes, sir. We're on for 1300, and I 12 understand that we do have a stable, as tested this morning, 13 VTC link. 14 of classified communications, if needed. 15 16 And I'm informed that it will have the capability MJ [Col SPATH]: Okay. That's good. I can't imagine we'll have those discussions, but thank you. 17 MATC [COL WELLS]: 18 MJ [Col SPATH]: Yes, sir. For people interested in our trip home, 19 and I know there are some, it appears it's going to be 20 Saturday. 21 Commissions. 22 weather. 23 of nor do I get involved in. I do want to thank the Office of Military OMC worked to move it to Friday, given the There were some logistical issues that I am not part I assume it had something to do UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12121 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 with contracts and the like with the airlines. 2 whatever reason, it is what it is. 3 lot of efforts made, and I do appreciate it. 4 like we're departing on Saturday, so pay attention to the 5 weather and plan accordingly for our arrival in D.C., because 6 I have every confidence we'll land there, given where we're 7 heading. 8 It doesn't look that bad, from what I can tell, but again, I 9 know a lot of people are traveling out from D.C. 10 But I know there were a So we'll find our way home depending on the weather. It could be I assume that, Defense Counsel, the other person in the courtroom is Dr. Crosby? 13 DDC [LT PIETTE]: 14 MJ [Col SPATH]: Yes, Your Honor. Okay. And she's not a party; I didn't 15 introduce her as such. 16 here and welcome Dr. Crosby. 17 some conversation about you yesterday. 18 before. 19 But it looks a little harder for you all. 11 12 But for I just want to make sure I know who's Good to see you. I knew you were here. We had So I haven't met you Okay. I think that's it for right now. We'll just -- we 20 will move forward, we'll get your testimony going, Mr. Miller, 21 with the witnesses, and then we'll see where we're at. 22 23 TC [MR. MILLER]: Thank you, Your Honor. The government calls Lisa LoCascio, Special Agent. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12122 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [Col SPATH]: If you would get Ms. LoCascio, Special Agent LoCascio. 3 4 All right. TC [MR. MILLER]: Ask permission, Your Honor, to use the monitor to show the witness some photographs. 5 MJ [Col SPATH]: 6 You may. Of course. For me -- I know some other commission judges feel 7 differently -- you are welcome to pre-stage your witnesses any 8 time at all. 9 other commission judges because I know that some of them have 10 13 I do not speak for the a different take, but ---- 11 12 It does not concern me. TC [MR. MILLER]: Thank you. I would rather do it that way. MJ [Col SPATH]: 14 It's easier, and I don't mind at all. Agent LoCascio, just come on in and take your seat 15 again. 16 remind you, you are still under oath, okay? 17 18 I know you were just testifying yesterday. WIT: Just Yes, sir. [Lisa LoCascio resumed her seat on the witness stand.] 19 MJ [Col SPATH]: 20 WIT: 21 MJ [Col SPATH]: 22 TC [MR. MILLER]: Thanks for coming back this morning. Of course. Mr. Miller. Thank you. 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12123 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 6 7 DIRECT EXAMINATION CONTINUED Questions by the Trial Counsel [MR. MILLER]: Q. Agent, now you have taken your seat. go over to the chart. TC [MR. MILLER]: Can you please We are going to start there. And if we could put the mobile microphone on the witness? Q. Yesterday we had you referring to the blowup of 8 Agent Metts' drawing, rendition based on your sketch, I guess 9 we'll call it, 713B. I'm going to ask you, as we go through 10 the photographs, if you could, when I give you the number, if 11 you could mark on the chart or on the schematic where what's 12 contained in that picture. 13 A. Yes, sir. 14 Q. I think when we stopped yesterday you were describing 15 for His Honor, for the court, where those particular doors 16 were and what they representative -- represented. 17 back to that. 18 There's a red door and a blue door. So let's go Could you 19 indicate what the red door allowed entry into and what the 20 blue door did? 21 A. So the blue door was another apartment that we 22 weren't searching. 23 that's the apartment. The red door that you can see is ajar, And I use that word lightly, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12124 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 "apartment." 2 arrangement. It was a very rough-constructed living 3 Q. Could you just mark 394 on the chart itself? 4 A. 394? 5 Q. 394. 6 A. And that will be the red door? 7 Q. Yes, please. 8 A. Okay. 9 TC [MR. MILLER]: 10 Please show the witness 392 for identification. 11 Q. Do you recognize that ---- 12 A. Yes. 13 Q. ---- photograph? 14 15 16 And what is that photo -- what is represented in that photograph, Agent? A. So we called this area the courtyard. And when you 17 look at the other picture where you saw the blue door and the 18 red door, that area here, we called that the courtyard; and 19 that is the area that we labeled Room D, which is our standard 20 search procedure. 21 22 23 Q. It appeared to be still under construction. Would that be a fair statement? A. So it appears that way, but I think in this instance UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12125 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 in these -- these communities, everything always looks like 2 it's under construction. 3 Q. All right. 4 A. [Did as directed.] 5 Q. And the marking of the rooms -- again, just briefly, 6 7 If you could mark 392, please. we mark each room for what purpose? A. What area? Our standard search procedure, we put signs up with 8 "Room" -- we label them Room A, B, C, D so we can discern in 9 the photographs and -- where we collected evidence. 10 11 Q. And would each agent collecting evidence then use those references? 12 A. They would try to do so, yes. 13 Q. 393, please. 14 Recognize that photograph, what is contained in 393? 15 A. Yes. 16 Q. If you could, please, describe what it is. 17 A. That was an item that we found in the courtyard area. 18 You can see the blue door. 19 you were looking straight on. So it was to the right, like if 20 Q. All right. 21 A. The number again, sir? 22 Q. 393. 23 A. That's the red door to the apartment. Please mark it on that chart. 395, please. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12126 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. All right. 2 A. Yes. 3 Q. All right. 4 A. I don't believe so. 5 Q. Mark it on the chart, please. 6 A. And that number was again? 7 Q. 395. 8 A. Okay. 9 Q. 396? 10 A. That's the door when it's ajar. 11 Q. All right. 12 Is it a double, sort of a double door? Was it locked when you arrived there? Again, on the chart, 396. 398, recognize that? 13 A. Yes. 14 Q. What's that? 15 A. That's the entranceway and some light switches and 16 some exposed plumbing. 17 Q. Is that what we might call a rough-in plumbing? 18 A. Rough-in, yes. 19 Q. If you would mark that, please, 398. 20 A. [Did as directed.] 21 Q. 397, please. 22 photograph? 23 A. Agent, do you recognize that Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12127 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 Q. All right. If you could describe that view, please, from where it is and what we're looking at? A. So when you open the door, this is the view that you 4 have looking straight ahead. 5 looking straight. 6 7 Q. That's the entire apartment, Let me stop you there. We'll get into it a little later, but does that window have certain significance? 8 A. Yes. 9 Q. All right. 10 A. [Did as directed.] 11 Q. 404, please. 12 A. Yes. 13 Q. What is that? 14 A. That's a depiction of Room A. 15 the other apartment. If you could, please, mark it 397. Do you recognize that? And that door went to It was locked. 16 Q. It was locked? 17 A. Yes. 18 Q. If you could mark that on the photograph, please? 19 A. Yes. 20 Q. 405, please. 21 A. Yes. 22 Q. Would you describe what is shown in that particular 23 photograph? Do you recognize that photograph? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12128 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. So that's, again, looking straight into the apartment 2 but on the left side. 3 called it their little kitchen area. And the items on the floor was -- we 4 Q. Was there a stove there or were they just ---- 5 A. It -- it looked like camping. Like -- I think there 6 was like a little thing that you could heat things up, but it 7 was just an area where they would have cooked food. 8 Q. All right. 10 A. [Did as directed.] 11 Q. Prosecution Exhibit 402 for Identification. 9 12 If you could mark, please, on the chart, 405. recognize that photograph, Agent? 13 A. Yes. 14 Q. What is that? 15 A. We called it the kitchen area. 16 17 Do you It was where it looked like food or drinks were prepared. Q. All right. It appears that there is some water or 18 something in the bottle -- excuse me -- in the clear sort 19 of -- or opaque jug; is that correct? 20 A. Yes. 21 Q. All right. 22 A. [Did as directed.] 23 Q. Prosecution Exhibit 409 for Identification, please. If you would mark that, please, 402. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12129 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 What is depicted in 409, Agent? A. This was the room that we labeled B, and this was the sleeping area. 4 Q. That's how it appeared that day? 5 A. Yes. 6 Q. All right. 7 chart. 8 A. [Did as directed.] 9 Q. Prosecution Exhibit 410, please. 10 If you would, please, mark 409 on the Do you recognize that photograph? 11 A. Yes. 12 Q. And what is depicted in it? 13 A. That same sleeping area, just another angle. 14 Q. Mark it, please. 15 A. [Did as directed.] 16 Q. 412 for Identification. 17 photograph? 18 A. Yes. 19 Q. All right. 20 A. So that's the view from the window where you can see 21 22 23 Do you recognize that And what is in that photograph? the USS COLE with the blast in the side. Q. You could actually see the COLE clearly from that window? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12130 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Very clearly, yes. 2 Q. 412, please. 3 A. [Did as directed.] 4 Q. Prosecution Exhibit 4 -- excuse me, 848 for 5 Identification, do you recognize that? 6 window? 7 A. Yes. 8 Q. Is it? 9 A. Yes. 10 Q. All right. 11 Is that the same Again, what can you see through that window? 12 A. So what number did you say that was, sir? 13 Q. That's 848. 14 A. Yes. It's the same view and you can see the ship 15 with the dark -- the dark spot in the middle is the hole from 16 the explosion. 17 Q. And did you actually look out that window? 18 A. I did. 19 Q. All right. 20 A. Very clearly. 21 Q. All right. 22 A. That's 848? 23 Q. 848, Agent. And could you clearly see the COLE? Would you mark that on the chart, please. Thank you. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12131 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. [Did as directed.] 2 Q. Prosecution Exhibit 413, please. 3 taken from that window? 4 A. Yes. 5 Q. All right. 6 7 8 Again, for the record, could you describe what's in Prosecution Exhibit 413. A. This is the view from the area -- sleeping area in the back where you can see the ship. 9 Q. Would you mark that, please. 10 A. Yes. 11 Q. Yes, ma'am. 12 A. [Did as directed.] 13 Q. Prosecution Exhibit 418. 14 Is this photograph 413? Appears to be from the roof of the apartment; is that correct? 15 A. Yes. 16 Q. And can you also see the COLE in it? 17 A. Yes. 18 Q. All right. 19 A. [Did as directed.] 20 Q. Prosecution 411. 21 22 23 If you would mark that, please, 418. Describe what's in the photograph, 411, if you recognize it. A. This is the area we called the -- their sleeping area. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12132 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And was there like a mattress on the floor? 2 A. It's a -- a mattress and some mats and blankets. 3 Q. If you would, please, mark 411 on the chart. 4 A. [Did as directed.] 5 Q. Prosecution Exhibit 406 for Identification. 6 7 What's depicted in that photograph? A. So this is a photo standing in the back where the 8 sleeping area is looking forward towards the front of the 9 apartment. 10 Q. Mark that photograph on the chart, please. 11 A. Is that 40 ---- 12 Q. 406. 13 A. 6. 14 Q. Prosecution Exhibit 400 for Identification. 15 I'm sorry. recognize what's contained in this photograph? 16 A. Yes. 17 Q. What's contained in this photograph? 18 A. So we labeled this Room C. 19 Do you We -- this is the bathroom. 20 Q. Would you mark that on the chart. 21 A. [Did as directed.] 22 Q. Would "primitive" be a description of that bathroom? 23 A. That would be a nice word to use, sir. It's number 400. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12133 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. All right. Prosecution Exhibit 399, please. Do you recognize that photograph? 3 A. Yes. 4 Q. And what's contained in photograph 399? 5 A. That would be the shower area, sir. 6 Q. All right. 7 A. Yes. 8 Q. Yes, ma'am. 9 A. [Did as directed.] 10 Q. Prosecution Exhibit 408, please, for Identification. 11 Could you mark that on the chart, please. 399? Do you recognize this photograph? 12 A. Yes. 13 Q. What do you recognize it to be? 14 A. That's another view looking towards the front, and -- 15 16 17 and that's me on the -- on the left. Q. All right. And there's a door in the photograph, correct? 18 A. Yes. 19 Q. And it has a word on it? 20 A. Yes. 21 Q. What's that word? 22 A. "Gentlemen." 23 Q. "Gentlemen," all right. And what was behind that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12134 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 door? 2 A. That was to another apartment. 3 Q. All right. 4 chart. 5 A. Is that 406? 6 Q. It is 408. 7 A. 408? 8 Q. Yes, ma'am. 9 A. [Did as directed.] 10 Q. Prosecution Exhibit 407 for Identification. 11 12 13 If you could, please, mark it on the And, again, if you could indicate what wall this depicts. A. A or B. Hold on. I can't see the label on there, but -- it's I cannot see the label on it. 14 Q. Using the "Gentlemen" door as a ---- 15 A. I think it's A. 16 Q. All right. 17 A. Yes. 18 Q. If you could mark it on the chart, please. 19 A. And the number is 407? 20 Q. 407. 21 A. All right. 22 Q. That would be the wall next to the "Gentlemen" -- or 23 sort of where the "Gentlemen" door is located? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12135 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Prosecution Exhibit 401, please, for Identification. 3 Do you recognize that? 4 A. Yes. 5 Q. And what's depicted in that photograph? 6 A. That's another view looking out towards the front of 7 the apartment, and you can see the -- the kitchen area on the 8 right. 9 Q. And is that -- which room is that? 10 A. That is A. 11 Q. All right. 12 chart, 401. 13 A. [Did as directed.] 14 Q. Prosecution Exhibit 386 for Identification, please. 15 If you could mark it, please, on the Do you recognize that photograph, ma'am? 16 A. Yes. 17 Q. And what is that? 18 A. That's a picture looking towards where the apartment 19 was located. 20 Q. From? 21 A. The ship. 22 Q. Mark that, please. 23 A. Is that 396? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12136 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Actually, you don't need to mark that one. 2 A. Okay. 3 Q. There's nowhere to mark it. 4 5 6 7 Could we look at Prosecution Exhibit 387. That is a photograph of what? A. That's the hill all the apartments were on, including the one we searched. 8 Q. Looking from the COLE? 9 A. Yes. 10 Q. I'm going to circle an area and ask you if you 11 It's a closeup. recognize this part of the photograph. It's the center of it. 12 A. Yes. 13 Q. What's there? 14 A. That the -- that's where the apartment was that we 15 16 17 searched. Q. For the record, that would be the building in the center of the photograph; is that correct? 18 A. Yes. 19 Q. Thank you. 20 A. Thank you. 21 Q. Yesterday while you were -- during your testimony, You may return to your seat. 22 you indicated that the search occurred over a two-day period, 23 correct? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12137 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes, sir. 2 Q. You also indicated that there were some security -- 3 serious security concerns? 4 A. Yes. 5 Q. Did that cause, in any way, for you and the team to 6 shorten the time in which you conducted your search? 7 A. Yes. 8 Q. You indicated you were the team leader. 9 Were you the team leader on both days? 10 A. I believe so, yes. 11 Q. And did you establish, for lack of a better term, a 12 procedure or a protocol for conducting the search? 13 A. Yes. 14 Q. And if you could briefly describe for His Honor what 15 16 that procedure was. A. So we didn't know how much time we would have, and we 17 were under a lot of duress for security. 18 with a plan to get in and out as fast as we could. 19 basically we photographed the scene, the entrance photographs, 20 put the room signs up and collected the evidence that we 21 could. 22 and then -- actually, the first day we were told to leave. 23 Q. So we -- I came up So And then, time permitting, we took more photographs, Was there a central repository or a single agent UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12138 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 responsible for the collection of the evidence? A. Yes. Usually we work on a team, a team concept, 3 where people have different duties. 4 was severely condensed because of, A, a lack of personnel; and 5 B, because of the security concerns. 6 Q. But in this instance, it Were you always able to get the evidence to that 7 person who had been designated? 8 collected the evidence, generally you would give it to the 9 person responsible for collection, correct? 10 11 A. Right. By that I mean if you We had a -- like a box we would try to put all the evidence in. 12 Q. All right. 13 A. So if we had to leave suddenly, we could make sure we 14 15 16 took everything with us. Q. During the search, were any Yemeni enforcement personnel present? 17 A. Yes. 18 Q. You had occasion to seize evidence? 19 A. I did. 20 TC [MR. MILLER]: 21 Yes. Your Honor, we're going to ask permission to use the ELMO. 22 MJ [Col SPATH]: 23 TC [MR. MILLER]: You may. All right. Provide the witness, please, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12139 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 with Prosecution Exhibit 300 for Identification. 2 Q. Take a look at that, please. 3 A. [Did as directed.] 4 Q. Do you recognize that? 5 A. Yes. 6 Q. Did you seize it? 7 A. Yes. 8 Q. How do you know that you seized it? 9 A. My name is on the chain of custody. 10 Q. Now, the form that's used on the chain of custody on 11 the exhibit itself, 300, is that an FBI form? 12 A. The label or the -- the chain, the 192? 13 Q. Not the 192, the other one, the one that's actually 14 on the evidence, Agent. 15 A. Yeah, the evidence label is not an FBI form. 16 Q. And what form is used? 17 A. It's an NC -- a Naval Criminal Investigative Service, 18 NCIS, evidence tag. 19 Q. And why were you using NCIS tags? 20 A. Because we ran out of equipment. 21 Q. All right. 22 A. And supplies. 23 Q. I'm placing on the ELMO at this time Prosecution UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12140 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Exhibit 300A for Identification. Do you recognize that item? 2 A. Yes, sir. 3 Q. And what do you recognize that item to be? 4 A. It's like a plastic material bag. 5 Q. All right. 6 Was that -- is that the item contained in Prosecution Exhibit 300? 7 A. Yes. 8 Q. See if we can make this out. 9 Is there a K tag number with the item? 10 A. Yes. 11 Q. Can you make that out? 12 A. K401. 13 Q. Looking at the bag itself, the actual exhibit, 14 Prosecution Exhibit 300, does it have a K number on it? 15 A. Yes. 16 Q. And what is that number? 17 A. K401. 18 Q. So it matches the number in Prosecution Exhibit 300A? 19 A. Yes, sir. 20 Q. Again, looking at the exhibit itself, 300, does it 21 have a YM4 number on it? 22 be helpful to open it for you? 23 A. If you can make one out. Would it No, the -- the writing on here looks like some -- it UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 didn't -- it's hard to read, but I can see 183. 2 and then 183. I can see YM 3 Q. All right. 4 A. Yes. 5 Q. What's that number? 6 A. 1B463. 7 Q. Is there a chain of custody, an FD-192, attached to 8 And does it have a 1B number? the exhibit? 9 A. Yes. 10 Q. Look at that, please. 11 A. Yes. 12 Q. And what does -- does it match -- what is that 13 Does it contain a 1B number? number? 14 A. 1B463. 15 Q. Does that match the number on the actual Exhibit 300? 16 A. Yes. 17 Q. And does it have YM4 number? 18 Does the chain of custody have YM4 number? 19 A. Yes. 20 Q. What is that number? 21 A. YM4-183. 22 Q. And does that match the one contained on the exhibit, 23 Prosecution Exhibit 300? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12142 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. I'm placing on the ELMO Prosecution Exhibit 300C for 3 Identification. Do you recognize that form? 4 A. Yes. 5 Q. Is that an exact duplicate of the chain of custody 6 for Prosecution Exhibit 300? 7 A. Yes. 8 Q. Does it contain your signature? 9 A. Yes. 10 Q. And where is your signature? 11 A. The first line. 12 Q. And did you then surrender the object or the evidence 13 to the person underneath? 14 A. Yes. 15 Q. Lastly, as best as you can tell, looking at 16 Prosecution Exhibit 300 -- oh, I'm sorry. 17 that tag? Do you recognize 18 A. Yes. 19 Q. That would be -- excuse me, the photograph is 20 Prosecution Exhibit 300B. Do you recognize that photograph? 21 A. Yes. 22 Q. What's contained in it? 23 A. That's the evidence tag on the item. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12143 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Fair and accurate depiction of it? 2 A. Yes. 3 TC [MR. MILLER]: 4 for the admission of Prosecution Exhibit 300A, B, and C. 5 MJ [Col SPATH]: 6 TC [MR. MILLER]: 7 The government would move, Your Honor, Noted. Thank you. Provide the witness with Prosecution Exhibit 301. 8 Q. Have you had an opportunity to look at that, ma'am? 9 A. Yes. 10 Q. What's contained in Prosecution Exhibit 301? 11 A. These are various swabbings. 12 Q. And were there personnel on scene to take swabbings? 13 A. Yes. 14 Q. Are you familiar with an individual by the name of 15 Leo West? 16 A. Yes. 17 Q. And who is Leo West? 18 A. He was there. 19 Q. Now, you indicated there are swabbings. 20 He was from our laboratory. If you could describe the packaging for the record, please. 21 A. Can I open this? 22 Q. You may. 23 A. So there are little glass vials where they put each UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12144 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 sample inside, and then we -- I packed it with this paper so 2 it wouldn't -- wouldn't rattle around. 3 Q. All right. 4 A. And then put that inside the plastic box. 5 Q. And did you initial the box? 6 A. This box, I do not believe I initialed this box. 7 Q. Did anyone -- do you see any other initials on there 8 that you believe are significant? 9 A. Yes, Leo West. 10 Q. All right. 11 A. Right. 12 Q. And was it then forwarded to an evidence collection 13 You packaged that up; is that correct? After he gives it to me, yes. person? 14 A. Yes. 15 Q. All right. I'm going to show you a photograph, 16 Prosecution Exhibit 301A, and ask you if you recognize that 17 photograph. 18 A. Yes. 19 Q. And what do you recognize that photograph to be? 20 A. That's this box. 21 Q. Is it the -- it's a top view? 22 A. Yes. 23 Q. Placing on the ELMO Prosecution Exhibit 301B for UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12145 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Identification. Do you recognize that? 2 A. Yes. 3 Q. All right. 4 A. This box. 5 Q. And it has some K numbers on the side; is that 6 And what is contained in that photograph? correct? 7 A. Yes. 8 Q. What are those K numbers? 9 A. Those K numbers are all of the samples. 10 Q. All right. And if you could read into the record the 11 numbers that are shown on the photograph itself, Prosecution 12 Exhibit 301B. 13 A. K402 through K408. 14 Q. Thank you. 15 Placing on the ELMO Prosecution Exhibit 301C for Identification. Do you recognize that? 16 A. Yes. 17 Q. What do you recognize that to be? 18 A. It's the bottom of the box. 19 Q. Now, looking at the exhibit itself, does the exhibit 20 itself contain a 1B number? 21 A. Like on the box? 22 Q. Yeah. 23 On the exhibit itself, either the packaging or the box. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12146 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. What is that number, Agent? 3 A. 1B464. 4 Q. Does it have a YM number, per chance? 5 A. Yes. 6 Q. What is that? 7 A. YM4-184. 8 Q. Is there a chain of custody form attached to it? 9 A. Yes. 10 Q. Take a look at that, please. 11 Looking at that chain of custody form, does it have a 1B number? 12 A. Yes. 13 Q. And what is that number? 14 A. 1B464. 15 Q. And does it have YM number? 16 A. Yes. 17 Q. And, Agent, do those match the numbers contained on 18 YM4-184. the actual exhibit, Prosecution Exhibit 301? 19 A. Yes. 20 Q. Placing on the ELMO Prosecution Exhibit 301E for 21 Identification. Do you recognize that form, Agent? 22 A. Yes, I do. 23 Q. And is that an exact duplicate of the form that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12147 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you've just described? 2 A. Yes. 3 Q. Is your signature contained on that form? 4 A. Yes, sir. 5 Q. And where? 6 A. On the first line. 7 Q. All right. 8 And did you then surrender the object approximately an hour later to the person underneath? 9 A. Yes. 10 Q. Placing on the ELMO Prosecution Exhibit 301D for 11 Identification. Do you recognize that photograph, Agent? 12 A. Yes. 13 Q. And what is contained in that photograph? 14 A. It's the box and the evidence label. 15 TC [MR. MILLER]: Your Honor, the prosecution would move 16 for the admission of Prosecution Exhibits 301A, B, C, D, and 17 E. 18 MJ [Col SPATH]: 19 TC [MR. MILLER]: 20 Prosecution Exhibit 305A. Noted. Thank you. If you could provide the witness with 21 Q. Do you have 305? 22 A. Yes. 23 Q. Do you recognize 305? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12148 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. What do you recognize it to be? 3 A. Shampoo bottle top. 4 Q. Is that something that you seized? 5 A. Yes. 6 Q. And how do you know that you seized it? 7 A. My name is on the evidence label and, also, I signed 8 9 10 for it on the chain of custody. Q. Placing on the ELMO Prosecution Exhibit K4 -- excuse me, Prosecution Exhibit 305A. 11 A. Yes. 12 Q. All right. 13 Do you recognize that? And is that the item contained in the actual exhibit, 305? 14 A. Yes. 15 Q. Is there a K number attached to it? 16 A. K423. 17 Q. Thank you. 18 If you would look at the actual exhibit, is there a K number attached to it? 19 A. Yes. 20 Q. So the one on the exhibit, Prosecution Exhibit 305, 21 The same, K423. matches that on the photograph, 305A, correct? 22 A. Yes. 23 Q. Again looking at the actual exhibit, 305, does it UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12149 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have a -- does it have a 1B number? 2 A. Yes. 3 Q. And does it have a YM number? 4 A. YM4-167. 5 Q. Is there a chain of custody form attached to it? 6 A. Yes. 7 Q. Could you, please, take a look at that. 8 1B447. Does it have a 1B number? 9 A. Yes. 10 Q. And does it have a YM4 number? 11 A. YM4-167. 12 Q. Does the YM -- do those numbers match the ones 13 1B447. contained on the actual exhibit, 305? 14 A. Yes. 15 Q. Placing on the ELMO Prosecution Exhibit 305C. 16 Do you recognize that? 17 A. Yes. 18 Q. Is that an exact duplicate of the form that you have 19 just described, the chain of custody form you've just 20 described? 21 A. Yes. 22 Q. Is your signature contained on it? 23 A. Yes, in the first line. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12150 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. 2 underneath? 3 A. Yes. 4 Q. Lastly, I want to place on the -- at least as to this All right. And did you surrender it to the person 5 exhibit, Prosecution Exhibit 305B for Identification. 6 recognize that? Do you 7 A. Yes. 8 Q. Is that a fair and accurate depiction of the evidence 9 tag for Prosecution Exhibit 305? 10 A. 11 TC [MR. MILLER]: 12 Yes. for the introduction of Prosecution Exhibits 305A, B, and C. 13 MJ [Col SPATH]: 14 TC [MR. MILLER]: 15 Your Honor, the government would move Noted. Thank you. Please go back for a moment and provide the witness with Prosecution Exhibit 302. 16 Q. Do you have before you Prosecution Exhibit 302? 17 A. Yes. 18 Q. Are those additional swabs that were packaged with 19 Prosecution 301, or are they their own separate ---- 20 A. This is the same -- yeah, the same box from before. 21 Q. Four of those swabs are designated as 302, correct? 22 A. Yes. 23 Q. And I'll ask you the same questions. Were those UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12151 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 provided to you by Special Agent Leo West? 2 A. Yes. 3 Q. All right. 4 the record. 5 that photograph? It's Prosecution Exhibit 302A. 6 A. Yes. 7 Q. All right. 8 I will just show you one photograph for Do you recognize And that's a photograph of the container holding 301 and 302, correct? 9 A. Yes. 10 Q. Fair and accurate depiction of it? 11 A. Yes, sir. 12 Q. Show you -- if you would look at the chain of custody 13 form for it, please. 14 number? Does it have a 1B number and a YM4 15 A. Yes. 16 Q. And does that match the numbers contained on the box 17 1B464, YM4-184. itself -- or the exhibit itself, according to the packaging? 18 A. According to the packaging, yes. 19 Q. All right. I'll show you what's marked as 20 Prosecution Exhibit -- excuse me -- 402E for Identification. 21 Do you recognize that? 22 A. Yes. 23 Q. All right. And what do you recognize that to be? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12152 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. It's a copy of the chain of custody. 2 Q. For the four vials marked 40 -- 302, correct? 3 A. Yes. 4 Q. Is that an exact duplicate of the FD-192? 5 A. Yes. 6 Q. And is that your signature on the top? 7 A. Yes. 8 Q. Again, you then surrendered it to the person 9 underneath you, underneath your name, for storage? 10 A. Yes. 11 Q. For the record, showing you Prosecution Exhibit 402D 12 for Identification -- excuse me, 403 for Identification. 13 you recognize that? 14 A. Yes. 15 Q. And is 403D -- what is depicted in 403D? 16 A. It's the box with -- containing the swabs. 17 TC [MR. MILLER]: 18 MJ [Col SPATH]: 19 20 Do Your Honor, may I have a minute? You may. [Pause.] Q. I believe I was asking you about 402. 21 me go back and change this. 22 302A. 23 I'm a little confused here. Let me -- let I showed you a photograph of I'm going to show you 302D -- excuse me. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12153 I'm sorry, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Show you a photograph of 302D. Do you recognize that 2 photograph? 3 A. Yes. 4 Q. And what is contained in that photograph? 5 A. A box containing the samples, swabs. 6 Q. Fair and accurate depiction of it? 7 A. Yes. 8 Q. So that I'm clear, 302E is an exact duplicate of the 9 chain of custody for that form -- for that exhibit, correct? 10 A. 11 TC [MR. MILLER]: 12 Yes. for the admission of 402D -- excuse me, 302D, 302E, and 302A. 13 MJ [Col SPATH]: 14 TC [MR. MILLER]: 15 16 Your Honor, the prosecution would move I understand. I'm confused. Noted. Thank you. They broke this into little pieces. Q. If we could -- if you could continue to hold the -- 17 or continue with that particular exhibit, there are also four 18 of those vials marked Prosecution Exhibit 303 [sic]; is that 19 correct? It may be marked on the bag, too. 20 A. 21 40 -- 408. 22 Q. 23 Not on the vials. All right. The bag indicates 402 through Let's start with 403A. In looking at the box, do you recognize the box as -- as the prosecution exhibit UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12154 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 containing the vials? Do you recognize that? 2 A. Yes. 3 Q. I'll show you a photograph of that box. Again, for 4 the record, it contains Prosecution Exhibits 303; is that 5 correct? 6 MJ [Col SPATH]: 7 TC [MR. MILLER]: 8 A. So this box contains 403 through 408. 9 Q. All right. 10 A. That's all that's in here. 11 Q. That's correct. 12 A. Okay. 13 Q. I'm going to keep asking. 14 Is it 4? 303. MJ [Col SPATH]: 16 about the right numbers. 17 A. 18 MJ [Col SPATH]: 19 TC [MR. MILLER]: 20 MJ [Col SPATH]: 21 WIT: 23 Got to get them into evidence. 15 22 Is it 403 or 303? I just want to make sure we're talking I keep hearing 303. Sir, the exhibit ---Tell me, yeah. Then I'm mistaken ---That's all right. She's got it. Okay. The yellow -- the yellow exhibit says Exhibit 301 through 304. MJ [Col SPATH]: Perfect. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12155 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 WIT: things are labeled K402 through 408. 3 4 Inside the box, the box vials, these little glass MJ [Col SPATH]: WIT: 6 MJ [Col SPATH]: 7 WIT: 9 10 Right. Got it. The K numbers are 400s. And the prosecution exhibit is 301 through 304. MJ [Col SPATH]: Okay. Trying to keep track here. WIT: 12 MJ [Col SPATH]: That helps me a lot. Thanks. You weren't alone. All right. Keep going. TC [MR. MILLER]: 15 Q. Actually -- all right. So as to 303, that's contained in the photograph 303A, correct? 17 A. Repeat the question, sir. 18 Q. All right. 19 Thank you. I was confused, so ---- 14 16 So the It's the same box. 11 13 That helps. K numbers ---- 5 8 Perfect. Exhibit 303A. The photograph on the ELMO is Prosecution Does that contain the vials? 20 A. Yes. 21 Q. And it contains vial 303, correct, to the best of 22 23 your knowledge? A. So the vials are marked the 400 numbers. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12156 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. All right. walk up. 3 A. 4 TC [MR. MILLER]: 5 MJ [Col SPATH]: 6 WIT: 7 8 9 I'm talking about the packaging -- let me Okay. Permission to approach, Your Honor? You may. That is what I've got on here, exhibits, and then ---Q. Right. The joint exhibit contains a series of vials. Could you count the vials, please? 10 A. There's -- there's eight vials in here. 11 Q. All right. 12 Those vials are contained in a package that has the -- has four exhibit numbers, correct? 13 A. Yes, sir. 14 Q. And those four exhibit numbers are? 15 A. 301, 302, 303, and 304. 16 Q. The photograph that is contained on the ELMO is 17 marked Prosecution Exhibit 303A, correct? 18 A. Yes, sir. 19 Q. So the vials are contained in that plastic container 20 that you have there, correct? 21 A. Yes. 22 Q. And is there -- there's a chain of custody attached 23 All of the vials, yes. for the vials marked 303 -- or that the lab has marked as 303, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12157 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 correct? 2 A. Yes, sir. 3 Q. If you would take a look at that. 4 Does it have the same 1B464 number and YM4-184 number? 5 A. Yes, sir. 6 Q. I'm placing on the ELMO Prosecution Exhibit 303E. 7 Does that reflect -- is that an exact duplicate of the chain 8 of custody for the vials that are going to be referred to as 9 Exhibit 303? 10 A. Yes. 11 Q. And again, for the record, is this the evidence tag 12 for the Exhibit 303? 13 A. 14 TC [MR. MILLER]: 15 Yes. Your Honor, the government would move for the admission of Prosecution Exhibits 303A, D, and E. 16 MJ [Col SPATH]: 17 Q. All right. Noted. Thank you. Lastly, again placing on the ELMO the 18 same photograph, Prosecution Exhibit 304E. 19 box to which you've referred, correct? That's the same 20 A. Yes. 21 Q. Contains the swabs that are -- that would be used as 22 23 304, correct? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12158 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Is this the evidence receipt for it, the 302 -- the 3 A. Yes. 4 Q. Again, it has the 1B464 number and the 4 -- YM4-184 2 5 192? number, correct? 6 A. Yes, sir. 7 Q. And do you recognize the photograph, 304D? 8 A. It's 304A. 9 Q. Do you recognize this photograph? 10 A. I do. 11 Q. And what do you recognize 304D to be, this 12 photograph? 13 A. This photograph is 304A. 14 Q. All right. 15 right? 16 A. Okay. 17 Q. I'm going to ask you, do you recognize -- I just want 18 Yes. The photograph is marked as 304D, all There. to know if you recognize what's in the photograph. 19 A. I do, sir. 20 Q. And what's in it? 21 A. The box that's here. 22 TC [MR. MILLER]: 23 All right. We'd move for the admission of Prosecution 304A, D, and E, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12159 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 Q. 3 Noted. Thank you. Prosecution Exhibit 306 for Identification, I believe it has one object in it. Do you recognize that, Agent? 4 A. Yes. 5 Q. All right. 6 A. Yes. 7 Q. And what is that item? 8 A. I labeled it as a clothesline. 9 Q. Placing on the ELMO Prosecution Exhibit 306A. 10 Did you seize that item? Do you recognize that? 11 A. Yes. 12 Q. What do you recognize that to be? 13 A. It's the item in this bag. 14 Q. When you say "the item in this bag," it's the item 15 contained in Prosecution Exhibit 306? 16 A. Yes. 17 Q. Can you read the K number attached or contained in 18 the photograph, Prosecution Exhibit 306A? 19 A. K425. 20 Q. If you look on the exhibit itself, Prosecution 21 Exhibit 306, do you recognize that? 22 A. Yes. 23 Q. What do you recognize that to be? Or excuse me. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12160 You UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 do recognize the -- let me back up. 2 The exhibit itself, does it contain a K number? 3 A. Yes. 4 Q. What's that K number? 5 A. K425. 6 Q. Does that match the K number contained in the 7 photograph, Prosecution Exhibit 306A? 8 A. Yes. 9 Q. Looking again at the actual exhibit, 306, does it 10 contain a 1B number and a YM number? 11 A. Yes. 12 Q. Let's start with the YM number. 13 A. YM4-169. 14 Q. And the 1B number? 15 A. 1B449. 16 Q. Is there a chain of custody form attached to that? 17 A. Yes. 18 Q. All right. 19 What is that, Agent? And what is that -- what are the 1B and YM numbers on the chain of custody form? 20 A. 1B449 and YM4-169. 21 Q. And do those numbers match the numbers contained on 22 23 the exhibit, Prosecution Exhibit 306? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12161 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution 306C. Do you recognize this form? 3 A. Yes. 4 Q. Is that an exact duplicate of the form that you've 5 just described? 6 A. Yes. 7 Q. Your signature contained on it? 8 A. Yes, sir. 9 Q. Where is that contained? 10 A. The first line. 11 TC [MR. MILLER]: 12 for the admission of Prosecution Exhibits 306A, B, and C. 13 MJ [Col SPATH]: 14 TC [MR. MILLER]: 15 16 17 Your Honor, the prosecution would move Noted. Thank you. Provide the witness with Prosecution Exhibit 30 -- 307A. Q. Do you recognize 307A -- or excuse me, 307. Prosecution Exhibit 307, do you recognize that? 18 A. Yes. 19 Q. And did you seize that? 20 A. Yes. 21 Q. And what is that item? 22 A. I labeled it a coat hanger. 23 Q. And your handwriting is on the evidence bag itself; UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12162 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 is that correct? 2 A. Yes. 3 Q. Placing on the ELMO Prosecution Exhibit 307A. 4 recognize that? 5 A. Yes. 6 Q. All right. 7 A. The item in the bag. 8 Q. All right. 9 Do you And what do you recognize it to be? And when you say "in the bag," it's the item in 307? 10 A. Yes, 307. 11 Q. Is there a K number associated with that item in the 12 photograph, Prosecution Exhibit 307? 13 to you. 14 Can you read that? 15 A. It's K42-something. 16 Q. All right. 17 A. Yes. 18 Q. All right. Hold on. I will get it If you can. Fairly blurred? Let's move on to the actual exhibit 19 itself, 307. 20 evidence bag, correct? You indicated that's your handwriting on the 21 A. Yes. 22 Q. Does it contain a 1B number and a YM4 number? 23 A. Yes. 1B452 and K428. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12163 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. You have the 1B number. What is the YM number -- YM4 number? 3 A. YM4-172. 4 Q. Is there a chain of custody form attached to it? 5 A. Yes. 6 Q. If you would, please, look at that form and see 7 whether or not it contains a 1B number and a one -- YM number. 8 A. 1B452, YM4-172. 9 Q. So does it match the numbers contained on the actual 10 exhibit, 307? 11 A. Yes. 12 Q. Placing on the ELMO Prosecution Exhibit 307C. 13 Do you recognize that form? 14 A. Yes. 15 Q. Is that an exact duplicate of the chain of custody 16 form you've just described? 17 A. Yes, sir. 18 Q. And does that contain your signature on the first 19 line? 20 A. Yes. 21 Q. Lastly, I'm placing on the ELMO Prosecution 22 23 Exhibit 307B. A. Do you recognize that? Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12164 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And what is that? 2 A. That's a part of an evidence bag. 3 Q. Is that the evidence bag in 307? 4 A. Yes. 5 Q. And is that your handwriting? 6 A. Yes. 7 TC [MR. MILLER]: 8 9 10 11 Your Honor, the prosecution would move for the admission of 307A, B, and C. MJ [Col SPATH]: Noted. TC [MR. MILLER]: Thank you. Provide the witness, please, with Prosecution Exhibit 308. 12 Q. Do you recognize 308? 13 A. Yes. 14 Q. Did you seize that? 15 A. Yes. 16 Q. "Collected," I guess, is a better word. 17 And how do you know that you collected it? 18 A. I signed the chain of custody. 19 Q. And what is contained in Prosecution Exhibit 308? 20 A. A curtain. 21 Q. Placing on the ELMO a photograph, Prosecution 308A. 22 23 Do you recognize that? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12165 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And what is contained in the photograph, 308A? 2 A. This is the curtain that's in this bag, 1B454. 3 Q. All right. 4 All right. And this is the Prosecution Exhibit 308, correct? 5 A. Yes. 6 Q. And this is the item you seized? 7 A. Yes. 8 Q. If you would, please, look at the bag itself. 9 Does it have a YM number and a 1B number? 10 A. 1B454, YM4-174. 11 Q. Is there a chain of custody form associated with that 12 or attached to that exhibit? 13 A. Yes. 14 Q. Would you take a look at it, please. 15 Does it have a 1B number and a YM number? 16 A. Yes. 17 Q. What is the 1B number? 18 A. 1B454. 19 Q. And the YM number? 20 A. YM4-174. 21 Q. And do those match the numbers contained on the 22 23 actual exhibit for -- excuse me -- Prosecution Exhibit 308? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12166 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution Exhibit 308C for Identification. Do you recognize that? 3 A. Yes. 4 Q. Is that an exact duplicate of the chain of custody 5 form you've just described? 6 A. Yes, sir. 7 Q. Placing on the ELMO Prosecution Exhibit 308B, as in 8 boy. Do you recognize that? 9 A. Yes. 10 Q. And what is that? 11 A. That's the evidence label on this item. 12 Q. Fair and accurate depiction of it? 13 A. Yes. 14 TC [MR. MILLER]: 15 Prosecution Exhibit 308A, B, and C. 16 MJ [Col SPATH]: 17 TC [MR. MILLER]: 18 Move for the admission, Your Honor, of Noted. Thanks. Provide the witness with Prosecution Exhibit 309 for Identification. 19 Q. Do you recognize that, Agent? 20 A. Yes. 21 Q. Prosecution Exhibit 309, did you seize that item, 22 23 collect that item? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12167 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And how do you know that you did so? 2 A. I signed the chain of custody. 3 Q. Place on the ELMO Prosecution Exhibit 309A. 4 Do you recognize that item? 5 A. Yes. 6 Q. And is that the item that you seized, Prosecution 7 Exhibit 309? 8 A. Yes, sir. 9 Q. There's a K number, appears to be written on the -- 10 written on the exhibit itself. Can you read that? 11 A. Yes, K431. 12 Q. If you would take a look at the actual exhibit, 309. 13 Do -- is there a K number contained on it? 14 A. Yes, K431. 15 Q. So it matches the one written on the exhibit; is that 16 correct? 17 A. Yes, sir. 18 Q. And contained in the photograph, too, correct? 19 A. Yes, sir. 20 Q. Directing your attention again back to the actual 21 Exhibit 309, is there a 1B and a YM number on it? 22 A. 1B455. 23 Q. And the YM number? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12168 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. YM4-175. 2 Q. If you would look, see if there is a chain of custody 3 form attached to that exhibit. 4 A. Yes. 5 Q. All right. 6 A. Yes 1B455, YM4-175. 7 Q. Do those numbers match the numbers contained on the 8 And does it have a 1B and a YM number? exhibit? 9 A. Yes. 10 Q. Placing on the ELMO Prosecution Exhibit 309C. 11 Do you recognize that? 12 A. Yes, sir. 13 Q. Is that an exact duplicate of the chain of custody 14 form you've just described? 15 A. Yes. 16 Q. Lastly, placing on the ELMO -- for this exhibit -- 17 Prosecution Exhibit 309B. Do you recognize that? 18 A. Yes, sir. 19 Q. Is that your handwriting? 20 A. I believe so. 21 Q. Is that -- what is depicted in that photograph? 22 A. Yes. 23 Q. What is depicted in it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12169 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. That is the item that's in this bag. 2 Q. The -- the evidence tag for it? 3 A. The evidence tag is an NCIS evidence tag. 4 Q. Fair and accurate depiction of the evidence tag on 5 Prosecution Exhibit 309? 6 A. 7 TC [MR. MILLER]: 8 9 10 11 Yes. Your Honor, the prosecution would move for the admission of 309A, B, and C. MJ [Col SPATH]: TC [MR. MILLER]: Noted. Thank you. Provide the witness Prosecution Exhibit 310 for Identification. 12 Q. Agent, do you recognize 310? 13 A. Yes. 14 Q. And what do you recognize them to be? 15 A. Five pieces of metal cookery. 16 Q. Are those items that you collected? 17 A. Yes. 18 Q. And did you fill out the evidence bag? 19 A. I did. 20 Q. I'll show you a photograph, Prosecution 21 Exhibit 410A for Identification. Do you recognize that? 22 A. Yes. 23 Q. And what is contained in Prosecution Exhibit 410A? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12170 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Excuse me. 2 A. The pieces of cookery. 3 Q. Are those the same pieces of cookery -- or pieces of 4 I keep -- 310A. 310A. cookery contained in Prosecution Exhibit 310? 5 A. Yes. 6 Q. If you would, please, take a look at the actual 7 Exhibit 310. Does it have a YM number written on it? 8 A. I don't see one on here. 9 Q. If you would look at the evidence tag itself, the bag 10 contained in it. 11 A. Okay. 12 Q. Are you able to make out a 1B number anywhere on it? 13 A. 1B405. 14 Q. Is there a green sheet, an FD-192, attached to that 15 Sorry, it's up here. YM4-127. exhibit? 16 A. Yes. 17 Q. If you would take a look at that, if you would, 18 please, Agent. Does it have a 1B number? 19 A. 1B405. 20 Q. Does it have YM number? 21 A. YM4-127. 22 Q. And do those match the numbers contained on the 23 actual Exhibit 410? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12171 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Placing on the ELMO Prosecution Exhibit 410C. 3 recognize that? 4 A. Yes. 5 Q. All right. 6 And is that an exact duplicate of the chain of custody form you just described? 7 A. Yes. 8 Q. Placing on the ELMO Prosecution Exhibit 410B. 9 Do you Do you recognize that? 10 A. Yes. 11 Q. Excuse me, 310B. 12 A. Yes, sir. 13 Q. And is that your handwriting? 14 A. It is. 15 Q. All right. 16 A. This is a piece -- a part of an evidence bag. 17 Q. Is 310B a fair and accurate depiction of the evidence 19 A. Yes. 20 TC [MR. MILLER]: 18 21 22 23 Do you recognize that? And what is depicted in this photograph? bag? Move for admission, Your Honor, of 310A, B, and C. MJ [Col SPATH]: Noted. Thank you. Mr. Miller, this is a good place to take our first UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12172 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 break of the morning. 2 in recess. 3 [The R.M.C. 803 session recessed at 1008, 15 February 2018.] 4 [The R.M.C. 803 session was called to order at 1024, 5 15 February 2018.] 6 MJ [Col SPATH]: 7 order. 8 on the stand. 9 11 The witness remains Remember you are still under oath. Mr. Miller. Thank you very much, Your Honor. Provide the witness, please, with Prosecution Exhibit 311. 12 13 Commission is These commissions are called back to All the same parties are present. TC [MR. MILLER]: 10 Let's take ten minutes. DIRECT EXAMINATION CONTINUED Questions by the Trial Counsel [MR. MILLER]: 14 Q. Do you recognize Prosecution Exhibit 311? 15 A. Yes. 16 Q. Did you seize it? 17 A. Yes. 18 Q. All right. 19 A. My handwriting -- or correct that. 20 second. 21 [Pause.] And how do you know that? Just give me a I need to open this bag, so ---- 22 A. My handwriting is on the NCIS label. 23 Q. And what is the item? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12173 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. It's a disposable Gillette razor. 2 Q. Placing on the ELMO Prosecution Exhibit 311A for 3 Identification. Do you recognize that? 4 A. Yes. 5 Q. And is that the razor that you have just described? 6 A. Yes, sir. 7 Q. The razor contained in 311? 8 A. Yes. 9 Q. Is there a K number attached to the -- contained in 10 the photograph? 11 A. K440. 12 Q. Thank you. 13 If you would look at the exhibit itself, the packaging for 311, does it have a K number on it? 14 A. Yes. 15 Q. And what is that number? 16 A. K440. 17 Q. It therefore matches the one in 311A, the photograph? 18 A. Yes. 19 Q. Looking again at the exhibit itself, does it have a 20 1B and a YM4 number? 21 A. The packaging has 1B425 and YM4-147. 22 Q. Is there a green sheet attached to the exhibit? 23 A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12174 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. If you would look at it, please. Does it have a 1B number? 3 A. Yes, 1B425. 4 Q. And does the -- the form have a YM number? 5 A. YM4-147. 6 Q. Do those match the numbers contained on the exhibit 7 itself? 8 A. Yes. 9 Q. Placing on the ELMO Prosecution Exhibit 311C for 10 Identification. Do you recognize that, Agent? 11 A. Yes. 12 Q. Is that an exact duplicate of the form you've just 13 described? 14 A. Yes. 15 Q. Placing on the ELMO Prosecution Exhibit 311B. 16 recognize that? 17 A. Yes. 18 Q. And what is that? 19 A. That's an NCIS evidence label for this item. 20 Q. Is that the evidence label for 311? 21 A. Yes. 22 Q. And is that your handwriting? 23 A. Yes, part -- some of it's my handwriting, yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12175 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Which is your handwriting, the one in black or the one in blue? 3 A. Where I scratched off "NCIS" and put "FBI." 4 Q. That's yours? 5 A. That's my handwriting. 6 Q. Is there any other handwriting on it that's yours? 7 A. I don't believe so. 8 Q. Fair and accurate depiction of the label? 9 A. Yes. 10 11 TC [MR. MILLER]: Your Honor, the prosecution would move the admission 311A, B, and C. 12 MJ [Col SPATH]: 13 Q. 312, please. 14 A. Yes. 15 Q. Did you seize that particular item? 16 Noted. 312. Thanks. Do you recognize 312? Or "collect" it, I guess is a better word. 17 A. Yes. 18 Q. And what is that item? 19 A. White rag. 20 Q. I'll show you a -- a photograph, Prosecution 21 Exhibit 312A -- Prosecution Exhibit 312A for Identification. 22 Do you recognize that? 23 A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12176 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And did you collect that at the site, Site 4? 2 A. Yes, I did. 3 Q. All right. 4 And is that the item contained in the exhibit, 312? 5 A. Yes. 6 Q. Can you make out the K number contained in the 7 photograph? 8 A. I can see K44. 9 Q. 44? 10 A. I believe it's a 9. 11 Q. All right. 12 If you would, please, take a look at the exhibit itself, 312. Is there a K number on it? 13 A. K449. 14 Q. So it matches the one contained in the photograph, 15 312A; is that correct? 16 A. Yes. 17 Q. Looking at the Exhibit 312, is there a YM number and 18 a 1B number attached to it? 19 A. Yes. 20 Q. And the 1B number? 21 A. 1B381. 22 Q. If you would, please, is there a chain of custody 23 YM4-103. form attached to it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12177 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Would you, please, look at it. 3 Does it contain a 1B number? 4 A. 1B381. 5 Q. And a YM number? 6 A. YM4-103. 7 Q. Are those the same numbers contained on the exhibit, 9 A. Yes. 10 Q. Excuse me, 312. 11 A. I'm sorry. 12 Q. 312. 8 311? 13 14 Yes, sir. Placing on the ELMO Prosecution Exhibit 312C for Identification. Do you recognize that form? 15 A. Yes. 16 Q. Is it an identical form -- is it identical to the 17 chain of custody form you've just described? 18 A. Yes. 19 Q. Placing on the ELMO Prosecution Exhibit 312B. 20 recognize that? 21 A. Yes. 22 Q. And what is contained in it? 23 A. That's an NCIS evidence label. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12178 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Indicates that you seized it in Room A, correct? 2 A. Yes. 3 Q. Is that a fair and accurate depiction of the evidence 5 A. Yes. 6 TC [MR. MILLER]: 4 7 tag? for the admission of 312A, B, and C. 8 MJ [Col SPATH]: 9 TC [MR. MILLER]: 10 Your Honor, the prosecution would move Noted. Thanks. Provide the witness, please, with Prosecution Exhibit 313. 11 Q. Do you recognize Exhibit 313? 12 A. Yes. 13 Q. Did you seize that item? 14 A. Yes. 15 Q. What is that item? 16 A. A scouring pad -- gray scouring pad. 17 Q. Placing on the ELMO Prosecution Exhibit 313A. 18 you, do you recognize that photograph? 19 A. Yes. 20 Q. And what do you recognize it to be? 21 A. The item inside this bag. 22 Q. All right. 23 A. Yes. That's Prosecution Exhibit 313? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12179 Ask UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. The K number contained in the photograph, are you able to make out that number? 3 A. K452. 4 Q. Looking at the exhibit itself, 313, does it have a K 5 number? 6 A. Yes. 7 Q. What is it? 8 A. K452. 9 Q. And that's -- does it match the number contained in 10 the photograph, 313A? 11 A. Yes. 12 Q. Looking at the exhibit itself, does it have a 1B 13 number and a YM number? 14 A. Yes. 15 Q. And 1B number? 16 A. 1B384. 17 Q. Is there a chain of custody form attached to it? 18 A. Yes. 19 Q. Would you, please, look at it. 20 A. Yes. 21 Q. Does it have a 1B number? 22 A. Yes. 23 Q. What is it? YM4-106. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12180 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 1B384. 2 Q. Does it have a YM number? 3 A. YM4-106. 4 Q. Does the chain of custody 1B and YM number match the 5 one contained on the exhibit? 6 A. Yes. 7 Q. Showing you Prosecution Exhibit 313C. 8 Do you recognize that form? 9 A. Yes. 10 Q. Is it an exact duplicate of the chain of custody form 11 that you've just described? 12 A. Yes. 13 Q. Placing on the ELMO Prosecution Exhibit 313B. 14 Do you recognize that? 15 A. Yes. 16 Q. And what do you recognize it to be? 17 A. This is the item with the NCIS evidence tag. 18 Q. And when you say "the item," are you talking about 20 A. Yes, 313. 21 Q. Fair and accurate depiction of it? 22 A. Yes. 23 TC [MR. MILLER]: 19 313? Sorry. Move for admission of 313A, B, and C, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12181 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Your Honor. 2 MJ [Col SPATH]: 3 TC [MR. MILLER]: 4 Noted. Thanks. Provide the witness with 314, please, Prosecution 314 for Identification. 5 Q. Do you recognize Prosecution Exhibit 314, Agent? 6 A. Yes. 7 Q. And what is contained in 314? 8 A. Two pillows from Room B. 9 Q. Did you seize those from Room B? 10 A. Yes. 11 Q. Placing on the ELMO Prosecution Exhibit 314A. 12 Do you recognize that photograph? 13 A. Yes. 14 Q. What's contained in that photograph? 15 A. The two pillows in this bag. 16 Q. Is there a K number associated with that photograph 17 or contained in that photograph? 18 A. K453. 19 Q. If you could look at the pillows themselves, the 20 packaging. 21 think there's a big one. Does it have a K number? 22 A. Yes, K453. 23 Q. All right. Look on the front. And do those -- does that match the K UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12182 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 number in the photo -- photograph, Prosecution 314A? 2 A. Yes. 3 Q. Looking at the Exhibit 314, does it have a 1B number 4 and a DK -- a YM number? 5 A. YM4-107. 6 Q. And a 1B number? 7 A. 1B385. 8 Q. Is there a form 192, a green sheet, attached to it? 9 A. Yes. 10 Q. Take a look at that, if you would, please. 11 Does it have -- does the chain of custody form have a 1B number? 12 A. Yes. 13 Q. And what is that number? 14 A. 1B385. 15 Q. And does it have a YM number? 16 A. Yes. 17 Q. Do those numbers match the ones contained on the 18 YM4-107. exhibit, 314? 19 A. Yes. 20 Q. Placing on the ELMO Prosecution Exhibit 314C. 21 recognize that? 22 A. Yes. 23 Q. Is that a duplicate original of the green sheet UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12183 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attached to the exhibit, 314? 2 A. Yes. 3 Q. Placing on the ELMO Prosecution Exhibit 314B. 4 recognize that? 5 A. Yes. 6 Q. And what is contained in that photograph? 7 A. This is a part of an evidence bag. 8 Q. Is it the evidence bag for 314? 9 A. Yes. 10 Q. Fair and accurate depiction of it? 11 A. Yes, sir. 12 TC [MR. MILLER]: 13 Do you Government would move for the admission of 314A, B, and C, Your Honor. 14 MJ [Col SPATH]: 15 TC [MR. MILLER]: 16 Q. Do you recognize that? 17 A. Yes. 18 Q. What is it? 19 A. A blanket. 20 Q. And did you collect that? 21 A. I did. 22 Q. From which room? 23 A. Room B. Noted. Thank you. Provide the witness with 315, please. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12184 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution Exhibit 315A. Do you recognize that? 3 A. Yes. 4 Q. Is that the same blanket contained in the Exhibit 6 A. It appears to be, yes. 7 Q. If you could make it out, is there -- it's a little 5 8 315? blurry. 9 10 Let's move on. The evidence bag itself, can you take a look at the evidence bag of 315. Does it contain a YM number? 11 A. YM4-108. 12 Q. Does it have a 1B number? 13 A. 1B386. 14 Q. All right. 15 If you would, please, is there a chain of custody form attached to the blanket? 16 A. Yes. 17 Q. And does it have a YM number? 18 A. YM4-108. 19 Q. And a 1B number? 20 A. 1B386. 21 Q. Do those match the numbers contained on the exhibit 22 23 itself, Exhibit 315, Prosecution Exhibit 315? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12185 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution Exhibit 315C. Do you recognize that? 3 A. Yes. 4 Q. Is that an exact duplicate of that chain of custody 5 form you've just described? 6 A. Yes. 7 Q. Placing on the ELMO Prosecution Exhibit 315B, as in 8 boy. 9 Exhibit 315? Is that the original packaging for Prosecution 10 A. Yes. 11 Q. Is it a fair and accurate depiction of it? 12 A. Yes. 13 TC [MR. MILLER]: 14 Exhibit 315A, B, and C, Your Honor. 15 MJ [Col SPATH]: 16 Q. 17 excuse me. 18 19 Move for admission of Prosecution Noted. Thank you. Placing on the ELMO Prosecution Exhibit 316 -- oh, TC [MR. MILLER]: If you could provide the witness first with that exhibit, 316. A little ahead of myself. 20 Q. Do you recognize Prosecution Exhibit 316, Agent? 21 A. Yes. 22 Q. And what is it? 23 A. A blanket. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12186 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And did you seize or collect that item? 2 A. Yes. 3 Q. From where? 4 A. Room B. 5 Q. Placing on the ELMO Prosecution -- a photograph, 6 Prosecution Exhibit 316A. Do you recognize that? 7 A. Yes. 8 Q. What is contained in 316A? 9 A. This blanket. 10 Q. All right. 11 A. Yes. 12 Q. If you would, look at the exhibit itself in its 13 packaging. 14 A. So 1B387. 15 Q. And a YM number? 16 A. YM4-109. 17 Q. Is there a chain of custody form attached to the 18 Photograph of the blanket, 316? Is there a YM number and a 1B number on it? exhibit? 19 A. Yes. 20 Q. Take a look at it, please. 21 A. YM4-109. 22 Q. Does it have a 1B number? 23 A. Yes, 1B387. Does it have a YM number? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12187 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Do those numbers match the numbers contained on the exhibit, 316? 3 A. Yes. 4 Q. Placing on the ELMO Prosecution Exhibit 316C for 5 Identification. Do you recognize that form? 6 A. Yes. 7 Q. Is that an exact duplicate of the chain of custody 8 form you just described? 9 A. Yes. 10 Q. Placing on the ELMO Prosecution Exhibit 316B. 11 Do you recognize that? 12 A. Yes. 13 Q. And is that the packaging for 316? 14 A. Yes. 15 Q. Which would contain the Exhibit 316? 16 A. Yes. 17 Q. Fair and accurate -- fair and accurate depiction of 18 That's part of an evidence bag. that packaging? 19 A. 20 TC [MR. MILLER]: 21 Yes. Move for admission, Your Honor, of Prosecution Exhibits 316A, B, and C. 22 MJ [Col SPATH]: 23 TC [MR. MILLER]: Noted. Thank you. Provide the witness, please, with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12188 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Prosecution Exhibit 317. 2 Q. Agent, do you recognize 317? 3 A. Yes. 4 Q. Did you collect that at Site 4? 5 A. Yes. 6 Q. From Room B? 7 A. Room B, yes. 8 Q. What is it? 9 A. Sheet. 10 Q. All right. 11 Exhibit 317A. Placing on the ELMO Prosecution Do you recognize that? 12 A. Yes. 13 Q. Is that a photograph of Prosecution Exhibit 317? 14 A. Yes. 15 Q. If you would, look at the exhibit itself, 317. 16 Does it have a 1B and a YM number? 17 A. Yes. 18 Q. What are those? 19 A. 1B388, YM4-110. 20 Q. Is there a chain of custody form attached to that 21 exhibit? 22 A. Yes. 23 Q. All right. And does it have a 1B and a YM number? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12189 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Do those numbers match the numbers contained on the 3 1B388, YM4-110. exhibit, 317? 4 A. Yes, sir. 5 Q. Placing on the ELMO Prosecution Exhibit 317C. 6 Do you recognize that form? 7 A. Yes. 8 Q. Is that, in fact, an exact duplicate of the chain of 9 custody form for 317? 10 A. Yes. 11 Q. Placing on the ELMO Prosecution Exhibit 317B. 12 recognize that? 13 A. Yes. 14 Q. And what is contained in that photograph? 15 A. Part of the evidence bag. 16 Q. For 317? 17 A. Yes. 18 Q. And is that a fair and accurate depiction of 19 Prosecution -- of the evidence bag for Prosecution 20 Exhibit 317? 21 A. 22 TC [MR. MILLER]: 23 Do you Yes. Move for the admission, Your Honor, of Prosecution's 317A, B, and C. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12190 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 TC [MR. MILLER]: 3 Noted. Thank you. Please provide the witness with Prosecution Exhibit 318. 4 Q. Do you recognize 318? 5 A. Yes. 6 Q. And did you seize 318? 7 A. Yes. 8 Q. And from where did you seize it? 9 from Site 4? 10 A. Yes. 11 Q. All right. 12 Do you see it's Placing on the ELMO Prosecution Exhibit 318A for Identification. Do you recognize it? 13 A. Yes, sir. 14 Q. What's contained in that photograph? 15 A. A dust brush. 16 Q. Is that the dust brush, or the item you seized, 318? 17 A. Yes. 18 Q. Can you read the K number contained in the 19 photograph? 20 A. K458. 21 Q. If you would, please, take a look at the actual 22 23 Exhibit 318. A. Does it have a K number? K458. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12191 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. All right. So it matches the number in the photograph, Prosecution Exhibit 318A, correct? 3 A. Yes, sir. 4 Q. Looking again at the exhibit, does it have a 1B 5 number and a -- does it have a 1B number and a YM number? 6 A. Yes. 7 Q. What are those? 8 A. 1B390 and YM4-112. 9 Q. Is there a chain of custody form attached to it? 10 A. Yes. 11 Q. If you could look at the chain of custody form 12 attached to 318, does it have a 1B number? 13 A. Yes, sir. 14 Q. And a YM number? 15 A. Yes. 16 Q. Do those match the numbers contained on the actual 17 1B390, YM4-112. exhibit itself ---- 18 A. Yes. 19 Q. ---- Prosecution 318? 20 A. Yes, sir. 21 Q. Placing on the ELMO Prosecution Exhibit 318C for 22 23 identification. A. Do you recognize that form? Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12192 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Is it an exact duplicate of the form, 318 ---- excuse 2 me. 3 Prosecution Exhibit 318? Is it an exact duplicate of the chain of custody form for 4 A. Yes. 5 Q. Lastly, placing on the ELMO Prosecution Exhibit 318B 6 for Identification. Do you recognize that ---- 7 A. Yes. 8 Q. ---- form? 9 A. That's the NCIS evidence label. 10 Q. All right. 11 A. 13 TC [MR. MILLER]: Yes. Move for the admission, Your Honor, of Prosecution Exhibits 318A, B, and C. 15 MJ [Col SPATH]: 16 TC [MR. MILLER]: 17 Fair and accurate depiction of the evidence label in -- contained -- or attached to 318? 12 14 And what is that? Noted. Thank you. Provide the witness, please, with Prosecution Exhibit 319. 18 Q. Have you had a chance to look at the exhibit? 19 A. Yes. 20 Q. What is the exhibit? 21 A. A hairbrush. 22 Q. Did you collect that hairbrush? 23 A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12193 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. All right. 2 A. Yes. 3 Q. Placing the exhibit -- or a photograph on the ELMO, From Site 4? 4 Prosecution Exhibit 319A for Identification. 5 that? Do you recognize 6 A. Yes. 7 Q. And is that the same hairbrush, 319? 8 A. Yes. 9 Q. Is there a K number contained in the photograph, 10 319 -- of 319A? 11 A. Yes, K461. 12 Q. If you would, please, look at the exhibit itself in 13 its packaging. Is there a K number attached to it? 14 A. K461. 15 Q. Is there a 1B number and a -- excuse me. 16 A. K461. 17 Q. So it matches the number contained in the photograph, 18 It's 461? 319A? 19 A. Yes, sir. 20 Q. If you would, please, is there a 1B number and a YM 21 number contained on the exhibit itself, 319? 22 A. Yes. 23 Q. All right. 1B393 and YM4-115. If you would, please, is there a chain of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12194 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 custody form, an FD-192, attached to the exhibit? 2 A. Yes. 3 Q. Would you look at that, please. 4 Does it contain a 1B number and a YM number? 5 A. Yes. 6 Q. What are they? 7 A. 1B393 and YM4-115. 8 Q. Do those numbers match the ones contained on the 9 Exhibit 319? 10 A. Yes. 11 Q. Placing on the ELMO Prosecution Exhibit 319C for 12 Identification. Do you recognize that? 13 A. Yes. 14 Q. Is that, in fact, an exact duplicate of the chain of 15 custody form that's attached to the Exhibit 319? 16 A. Yes. 17 Q. Placing on the ELMO Prosecution Exhibit 319B. 18 Do you recognize that? 19 A. Yes. 20 Q. And what do you recognize it to be? 21 A. It's the evidence -- NCIS evidence label for this 22 23 item. Q. Fair and accurate depiction of it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12195 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 2 TC [MR. MILLER]: 3 Yes. for the admission of 319A, B, and C. 4 MJ [Col SPATH]: 5 TC [MR. MILLER]: 6 7 8 Your Honor, the prosecution would move Noted. Thank you. Can I have just a second, Your Honor? [Pause.] TC [MR. MILLER]: Provide the witness, please, with Prosecution Exhibit 321. 9 Q. Do you recognize 321, Agent? 10 A. Yes. 11 Q. And what is contained in 321? 12 A. It's a window curtain and rag. 13 Q. And did you collect those items? 14 A. Yes. 15 Q. From where? 16 A. Room B. 17 Q. Placing on the ELMO Prosecution Exhibit 321A for 18 Identification. What is 321? Do you recognize that? 19 A. Yes. 20 Q. What do you recognize that to be? 21 A. The item in this bag. 22 Q. If you would look at the bag itself, please. 23 the bag have a YM and 1B number on it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12196 Does UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. And if you could, please, see if there is a chain of 3 YM4-117, 1B395. custody form attached to the item. 4 A. Yes. 5 Q. All right. 6 And does it have a 1B number and a YM number? 7 A. Yes. 8 Q. And does that match the numbers contained on the 9 1B395, YM4-117. exhibit itself, 321? 10 A. Yes. 11 Q. Placing on the ELMO Prosecution Exhibit 321C. Is 12 that an exact duplicate of the chain of custody form you've 13 just described? 14 A. Yes. 15 Q. Placing on the ELMO Prosecution Exhibit 321B. 16 Do you recognize that? 17 A. Yes. 18 Q. All right. 19 A. That's a part of an evidence bag. 20 Q. Is it the evidence bag for -- a piece of the evidence 21 And what is that? bag for 321? 22 A. Yes. 23 Q. And is that a fair and accurate depiction of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12197 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 evidence bag in Prosecution Exhibit 321? 2 A. 3 TC [MR. MILLER]: 4 Yes, sir. Your Honor, the government would move for the admission of Prosecution Exhibits 321A, B, and C. 5 MJ [Col SPATH]: 6 TC [MR. MILLER]: 7 Prosecution Exhibit 322A. Noted. Thanks. Provide the witness, please, with 8 Q. Do you recognize that? 9 A. Yes. 10 Q. What do you recognize it to be? 11 A. Blue-and-white adapter. 12 Q. Did you seize that item or collect that item? 13 A. Yes. 14 Q. From where? 15 A. Room B. 16 Q. Placing on the ELMO a photograph, Prosecution 17 Exhibit 322A. Do you recognize that? 18 A. Yes. 19 Q. Is that the same blue-and-white adapter contained 20 in -- or is that the same one as 322? 21 A. Yes. 22 Q. If you would look at the actual exhibit in its 23 packaging, Prosecution Exhibit 322. Does it contain a YM UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12198 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 number and a 1B number? Does it have one? Excuse me. 2 A. 1B396, YM4-118. 3 Q. Is there a chain of custody form attached to that 4 exhibit? 5 A. Yes. 6 Q. Take a look at that, if you would, please. 7 Does it have a 1B and a YM number? 8 A. Yes. 9 Q. And do those numbers match the numbers contained on 10 1B396, YM4-118. the actual exhibit, 322? 11 A. Yes. 12 Q. Placing on the ELMO Prosecution Exhibit 322A -- 13 excuse me, 322C. Do you recognize that form? 14 A. Yes. 15 Q. And is that form an exact duplicate of the chain of 16 custody form for 322? 17 A. Yes. 18 Q. Placing on the ELMO Prosecution Exhibit 322B. 19 recognize this? 20 A. Yes. 21 Q. What do you recognize that to be? 22 A. That is part of the evidence bag for this item. 23 Q. Fair and accurate depiction of it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12199 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 2 TC [MR. MILLER]: 3 Yes. C, Your Honor. 4 MJ [Col SPATH]: 5 TC [MR. MILLER]: 6 Move for the admission of 322A, B, and Noted. Thank you. Placing -- if you could provide the witness with Prosecution Exhibit 323. 7 Q. Take a look at that, please. 8 A. Yes. 9 Q. What is it? 10 A. Says one pillow -- or pillow. 11 Q. Did you collect it? 12 A. Yes. 13 Q. And from where did you collect it? 14 A. Room B. 15 Q. Placing on the ELMO Prosecution Exhibit 323A. 16 Do you recognize it? recognize that ---- 17 A. Yes. 18 Q. ---- in that photograph? 19 A. Yes. 20 Q. What's in that photograph? 21 A. Yes. 22 Q. What's in it? 23 A. That is the item in this bag. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12200 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. And is there a K number associated with it and attached to the photograph? 3 A. K467. 4 Q. If you would take a look at the packaging and the 5 Exhibit 323. Does it have a K number? 6 A. K4667. 7 Q. So it matches the one on the -- exhibit matches the 8 one contained in the photograph, 323A, correct? 9 A. Yes. 10 Q. If you would, again, look at the actual exhibit, 323. 11 Does it have a 1B number and a YM number? 12 A. Yes. 13 Q. If you would, please, see if there is a chain of 14 1B399, YM4-121. custody form, an FD-192, green sheet, attached to the exhibit. 15 A. Yes. 16 Q. If you'd look at it, please. 17 Does it have a YM number? 18 A. YM4-121. 19 Q. Does it have a 1B number? 20 A. 1B399. 21 Q. Do those numbers match the numbers contained on the 22 23 exhibit itself, 323? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12201 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution Exhibit 323C for Identification. Do you recognize that? 3 A. Yes. 4 Q. Is that an exact duplicate of the chain of custody 5 form for 3 -- Prosecution Exhibit 323? 6 A. Yes. 7 Q. Placing on the ELMO Prosecution Exhibit 323B for 8 Identification. Do you recognize that? 9 A. Yes. 10 Q. And what is that? 11 A. That is a piece of the evidence bag. 12 Q. For Prosecution Exhibit 2 -- for 323? 13 A. Yes. 14 Q. Fair and accurate depiction of it? 15 A. Yes, sir. 16 TC [MR. MILLER]: 17 for admission of Prosecution Exhibit 323A, B, and C. 18 MJ [Col SPATH]: 19 TC [MR. MILLER]: 20 Your Honor, the prosecution would move Noted. Thanks. Provide the witness, please, with Prosecution Exhibit 324. 21 Q. Agent, do you recognize Prosecution Exhibit 324? 22 A. Yes. 23 Q. Did you seize it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12202 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. And what is that item? 3 A. It is the floor mat -- floor pads, from Room B. 4 Q. All right. 5 Exhibit 324A. Placing on the ELMO Prosecution Do you recognize that? 6 A. Yes. 7 Q. And what is that? 8 A. I can't read the K number, but it's the item in this Q. That's the floor pad that you collected from the 9 10 11 bag. Room B? 12 A. Yes. 13 Q. That is the same exhibit, Prosecution Exhibit 324, 14 photograph of it? 15 A. Yes. 16 Q. If you would look at the actual evidence packaging, 17 the exhibit itself. Does it have a 1B number and a YM number? 18 A. YM4-123 and 1B400. 19 Q. Could you check to see if there's a green sheet, a 20 chain of custody form attached to the exhibit? 21 A. Yes. 22 Q. If you'd look at it, please. 23 Does it contain a 1B and YM number? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12203 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. What are those numbers? 3 A. 1B401, YM4-123. 4 Q. Do those numbers match the numbers contained on the 5 actual exhibit, 424 [sic]? 6 A. Yes. 7 Q. Placing on the ELMO Prosecution Exhibit 324C. 8 recognize that? 9 A. Yes. 10 Q. Okay. 11 Do you And what do you recognize -- excuse me. What do you recognize that to be? 12 A. Chain of custody. 13 Q. An exact duplicate of the chain of custody form for 15 A. Yes, sir. 16 Q. Placing on the ELMO Prosecution Exhibit 324B. 14 17 324? Do you recognize that? 18 A. Yes. 19 Q. What do you recognize that to be? 20 A. It's part of the evidence bag for this item. 21 Q. Fair and accurate depiction of it? 22 A. Yes, sir. 23 Q. When you say "evidence bag," that's for Exhibit 324, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12204 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 correct? 2 A. 3 TC [MR. MILLER]: 4 Provide the witness with Prosecution Exhibit 325, please. 5 6 Yes. While they're doing that, Your Honor, I would move for the admission of Prosecution Exhibits 324A, B, and C. 7 MJ [Col SPATH]: 8 Q. Have you had a chance to look at 325? 9 A. Yes. 10 Q. Did you seize the items contained in Prosecution 11 Noted. Thank you. Exhibit 325? 12 A. Yes. 13 Q. And from where did you seize them? 14 A. Room B. 15 Q. And what are the items? 16 A. Q-tip. 17 Q. All right. 18 A. Room B. 19 Q. At Room B? 20 21 And from where did you seize them? Placing on the ELMO Prosecution Exhibit 325A. recognize what's in that photograph? 22 A. Yes. 23 Q. What is in that photograph? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12205 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. The Q-tip. 2 Q. Is it the same Q-tip contained in the Exhibit 325? 3 A. Well, the Q-tip's been altered by the lab, so -- but, 4 5 6 yes, it's the same picture of what I seized. Q. All right. So once you -- once you seized it, it was forwarded to the laboratory? 7 A. Correct. 8 Q. Do you recognize it generally as the same Q-tip? 9 A. This photograph? 10 Q. Yes. 11 A. Yes. 12 Q. If you would, please, there is a Q number -- excuse 13 me, a K number on the photograph, correct? 14 A. Yes, K470. 15 Q. If you would look at the exhibit itself, the 16 packaging, is there a K number on it? 17 A. Yes, K470. 18 Q. All right. 19 Would you also look on the packaging and see if there is a 1B number and a YM number? 20 A. YM4-125, 1B403. 21 Q. Is there a chain of custody form attached or 22 23 associated with that exhibit ---A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12206 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. ---- Prosecution Exhibit 325? 2 A. Yes. 3 Q. Would you look at it, please. 4 A. Yes, sir. 5 Q. Does it have a 1B and a YM number? 6 A. Yes. 7 Q. All right. 8 A. 1B403, YM4-125. 9 Q. Does that match the 1B number and the YM number on 10 the exhibit itself, 325? 11 A. Yes. 12 Q. Placing on the ELMO Prosecution Exhibit 325C. 13 recognize that? 14 A. Yes. 15 Q. And what do you recognize it to be? 16 A. A chain of custody for 1B403. 17 Q. Is it an exact duplicate of it? 18 A. Yes. 19 Q. Placing on the ELMO Prosecution Exhibit 325B. 20 Do you Do you recognize that? 21 A. Yes. 22 Q. And is that a photograph of the packaging for 325? 23 A. Yes, sir. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12207 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Fair and accurate depiction of it? 2 A. Yes. 3 TC [MR. MILLER]: 4 Prosecution Exhibit 325A, B, and C. 5 MJ [Col SPATH]: 6 TC [MR. MILLER]: 7 Move for admission, Your Honor, of Noted. Thank you. Placing -- if you could provide the witness with Prosecution Exhibit 326. 8 Q. Do you recognize 326? 9 A. Yes. 10 Q. Did you collect it? 11 A. Yes. 12 Q. From where? 13 A. Room A. 14 Q. What is it? 15 A. A teapot. 16 Q. Placing on the ELMO Prosecution Exhibit 326A. 17 Do you recognize that? 18 A. Yes. 19 Q. Is that the teapot you recovered? 20 A. Yes, sir. 21 Q. And that's Prosecution Exhibit 326? 22 A. Yes. 23 Q. If you would look at the packaging of the teapot. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12208 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Does it have a YM number and a 1B number? 2 A. Yes. 3 Q. Is there a chain of custody or an FD-192 attached to 4 YM4-129 and 1B407. the exhibit? 5 A. Yes. 6 Q. If you would, please, take a look at them -- take a 7 look at it, rather. Does it have a 1B number? 8 A. Yes, 1B407. 9 Q. And a YM number? 10 A. YM4-129. 11 Q. And do those numbers match the numbers contained on 12 the exhibit, the packaging for the exhibit, Prosecution 13 Exhibit 326? 14 A. Yes. 15 Q. Placing on the ELMO Prosecution Exhibit 326C for 16 Identification. Do you recognize that form? 17 A. Yes. 18 Q. And is that an exact duplicate of the chain of 19 custody form that you've just described? 20 A. Yes, sir. 21 Q. Placing on the ELMO Prosecution Exhibit 326B. 22 23 recognize that? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12209 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And is that the packaging for the Exhibit 326? 2 A. Yes. 3 Q. Is that a fair and accurate depiction of it? 4 A. Yes. 5 TC [MR. MILLER]: 6 Move for admission of Prosecution's Exhibits 326A, B, and C, Your Honor. 7 MJ [Col SPATH]: 8 TC [MR. MILLER]: 9 Q. Do you recognize Prosecution Exhibit 327? 10 A. Yes. 11 Q. Did you collect it? 12 A. Yes. 13 Q. From where? 14 A. Room A. 15 Q. And what is the item? 16 A. One spoon. 17 Q. Placing on the ELMO Prosecution Exhibit 327A for 18 Identification. Noted. Thank you. Provide the witness with 327, please. Do you recognize what's in that photograph? 19 A. Yes. 20 Q. What is in that photograph? 21 A. The -- the spoon. 22 Q. The spoon that you seized, 327? 23 A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12210 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. 2 photograph? 3 A. Yes, K474. 4 Q. All right. 5 The K number attached to -- or contained in the If you look on the item itself, does it have a K number? 6 A. Yes, K474. 7 Q. And does that match the number in the photograph, 8 Prosecution Exhibit 327A? Oh, I'll put it back up. 9 A. Yes, sir. 10 Q. Looking at the item itself, does it have a 1B number 11 and a YM number? 12 A. Yes, 1B408. 13 Q. And YM, what's ---- 14 A. YM4-130. 15 Q. Is there a chain of custody form attached to the 16 exhibit? 17 A. Yes. 18 Q. Take a look at it, please. 19 Does it have a 1B number and a YM number? 20 A. 1B408, YM4-130. 21 Q. Do those numbers match the numbers contained on the 22 23 exhibit and the packaging for 327? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12211 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Placing on the ELMO Prosecution Exhibit 327C for Identification. Do you recognize that form? 3 A. Yes. 4 Q. Is that an exact duplicate of the form you've just 5 described, the chain of custody for 327? 6 A. Yes. 7 Q. Placing on the ELMO Prosecution Exhibit 327B. 8 Do you recognize that? 9 A. Yes. 10 Q. Excuse me. 11 A. Yes. 12 Q. Is that a fair and accurate depiction of the tag on 13 A. 15 TC [MR. MILLER]: Yes. Move for the admission, Your Honor, of Prosecution Exhibits 327A, B, and C. 17 MJ [Col SPATH]: 18 TC [MR. MILLER]: 19 Do you recognize that? the exhibit, 327? 14 16 If -- 327C. Noted. Thank you. Provide the witness, please, with Prosecution Exhibit 328. Do you recognize that item? 20 A. Yes. 21 Q. Did you seize that item? 22 A. Yes. 23 Q. Collect that item, I guess, is a better word. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12212 Did UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you collect it? 2 A. Yes. 3 Q. From where? 4 A. Room A. 5 Q. And what is the item? 6 A. One knife. 7 Q. Placing on the ELMO Prosecution Exhibit 328A for 8 Identification. Do you recognize that? 9 A. Yes. 10 Q. What do you recognize it to be? 11 A. The item in this bag, K475. 12 Q. That is the knife, Prosecution Exhibit 328, correct? 13 A. Yes. 14 Q. Is there a K number contained on the photograph or in 15 the photograph? 16 A. K475. 17 Q. If you would look at, please, at the exhibit itself, 18 Prosecution Exhibit 328. Does it have a K number? 19 A. Yes, K475. 20 Q. Does it match the K number in the photograph, 3 -- 21 328A? 22 A. Yes. 23 Q. Looking again at the photograph, does it have a 1B UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12213 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 number and a YM number? 2 A. YM4-131, 1B409. 3 Q. Is there a chain of custody form attached to the 4 exhibit? 5 A. Yes. 6 Q. Could you look at that. 7 have a 1B and a YM number? 8 A. Yes. 9 Q. What are they? 10 A. 1B409, YM4-131. 11 Q. All right. 12 The chain of custody form Placing on the ELMO Prosecution Exhibit 328C for Identification. Do you recognize that? 13 A. Yes. 14 Q. All right. 15 A. The chain of custody for this item, K475. 16 Q. Is it an exact duplicate of it? 17 A. Yes. 18 Q. Lastly, Prosecution Exhibit 328B, as in boy. 19 What do you recognize that to be? recognize that photograph? 20 A. Yes. 21 Q. And what is that? 22 A. The evidence label for this item, K475. 23 Q. Fair and accurate depiction of it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12214 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 2 TC [MR. MILLER]: Yes, sir. If you can provide -- the government at 3 this time, Your Honor, would move for the admission of 4 Prosecution 328A, B, and C. 5 MJ [Col SPATH]: 6 TC [MR. MILLER]: 7 Noted. Thank you. Provide the witness with Prosecution Exhibit 329. 8 Q. Do you recognize that item, ma'am? 9 A. Yes. 10 Q. Agent, did you seize that item? 11 A. Yes. 12 Q. From where? 13 A. Room A. 14 Q. And what is the item? 15 A. One spoon. 16 Q. Placing on the ELMO Prosecution Exhibit 329A. 17 Do you recognize that? 18 A. Yes. 19 Q. And what is that? 20 A. That is the item in this bag, K476. 21 Q. And does the photograph have a K number? 22 A. Yes, K476. 23 Q. All right. Looking at the item itself, 329, as well UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12215 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 as its packaging, is there a K number attached to it? 2 A. K4 -- yes, K476. 3 Q. So does the numbers match the one on the package and 4 the one in the photograph? 5 A. Yes. 6 Q. If you look again at the photograph. 7 YM number and a 1B number? 8 A. The bag? 9 Q. Yes, packaging. 10 A. Evidence bag is YM4-131, and 1B410. 11 Q. Okay. 12 A. YM4-132. 13 Q. All right. 14 And what is the YM number on this? I'm sorry. Is there a chain of custody form attached to the item? 15 A. Yes. 16 Q. If you'd take a look at that, please. 17 Does it have a Does it have a 1B and a YM number? 18 A. Yes. 19 Q. All right. 20 A. 1B410, YM4-132. 21 Q. Do those numbers match the numbers contained on the And what are those numbers? 22 exhibit, Prosecution Exhibit 329B, as -- does it -- do those 23 numbers match the numbers contained on the exhibit, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12216 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Prosecution Exhibit 329? 2 A. Yes, sir. 3 Q. Placing on the ELMO Prosecution Exhibit 329C. 4 Do you recognize that photograph? 5 A. Yes. 6 Q. Is that a fair and accurate depiction of the -- or 7 excuse me. 8 form you've just described? Is that an exact duplicate of the chain of custody 9 A. Yes. 10 Q. Placing on the ELMO Prosecution Exhibit 329B. 11 recognize that? 12 A. Yes. 13 Q. And what do you recognize that to be? 14 A. The NCIS evidence label for this item, K476. 15 Q. All right. 16 And that's Prosecution Exhibit 329, correct? 17 A. Yes, sir. 18 Q. Fair and accurate depiction of it? 19 A. Yes, sir. 20 TC [MR. MILLER]: 21 22 23 Do you Provide the witness, please, with Prosecution Exhibit 330. We would also move at this time, Your Honor, for the admission of Prosecution's 329A, B, and C. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12217 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 Q. 3 Noted. Thank you. Had an opportunity to look at Prosecution Exhibit 330? Do you recognize that item? 4 A. Yes. 5 Q. Did you collect that item? 6 A. Yes. 7 Q. From where? 8 A. Room A. 9 Q. And what is the item? 10 A. One can opener. 11 Q. Placing on the ELMO Prosecution Exhibit 330A for 12 Identification. Do you recognize what's in that photograph? 13 A. Yes. 14 Q. What's in that photograph? 15 A. Can opener. 16 Q. The same can opener, Prosecution Exhibit 330? 17 A. Yes. 18 Q. Is there a K number contained in the photograph? 19 A. K478. 20 Q. Looking at the exhibit itself in its packaging, is 21 there a K number attached to it? 22 A. Yes. 23 Q. What is that? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12218 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. K478. 2 Q. All right. 3 Is there a 1B number and a YM number contained on the exhibit and packaging itself? 4 A. 1B412, YM4-134. 5 Q. Could you check to see if there is a chain of custody 6 form attached to the exhibit? 7 A. Yes. 8 Q. All right. 9 A. Yes. 10 Q. What are those? 11 A. 1B412, YM4-134. 12 Q. So the numbers on the chain of custody form match 13 Does it have a 1B number and a YM number? those contained on the Exhibit 330, correct? 14 A. Yes, sir. 15 Q. Placing on the ELMO Prosecution Exhibit 330C for 16 Identification. Do you recognize that form? 17 A. Yes. 18 Q. Is that an exact duplicate of the prosecution 19 exhibit -- the -- excuse me. 20 the chain of custody form you've just described? Is that an exact duplicate of 21 A. Yes. 22 Q. Placing on the ELMO Prosecution Exhibit 330B. 23 recognize that? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12219 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. All right. 3 A. The NCIS evidence label. 4 Q. Is that the evidence label for Prosecution 5 And what is contained in that photograph? Exhibit 330? 6 A. Yes. 7 Q. It is a fair -- is it a fair and accurate depiction 8 of it? 9 A. 10 11 Yes, sir. TC [MR. MILLER]: Exhibits 330A, B, and C, Your Honor. 12 MJ [Col SPATH]: 13 TC [MR. MILLER]: 14 Move for the admission of Prosecution Noted. Thank you. Provide the witness with Prosecution Exhibit 331. 15 Q. Do you recognize Prosecution Exhibit 331? 16 A. Yes. 17 Q. And what's contained in 331? 18 A. One spoon. 19 Q. All right. 20 A. Yes. 21 Q. And from where did you collect it? 22 A. Room A. 23 Q. Placing on the ELMO Prosecution Exhibit 331A, as in Did you seize that item? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12220 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Adam. Do you recognize that photograph? 2 A. Yes. 3 Q. What's contained in that photograph? 4 A. The spoon, K479. 5 Q. So that would be the spoon, Prosecution Exhibit 331, 6 correct? 7 A. Yes. 8 Q. Is there a K number contained in the photograph? 9 A. K479. 10 Q. All right. If you'd look at the actual exhibit, 11 Prosecution Exhibit 331 and its packaging, is there a K number 12 attached to it? 13 A. Yes. 14 Q. What is that K number? 15 A. K479. 16 Q. So the number matches the package and the photograph, 17 331A; is that correct? 18 A. Yes. 19 Q. In looking at the exhibit itself, 331, is there a 1B 20 number and a YM number? 21 A. Yes. 22 Q. And is there a chain of custody form attached to the 23 1B413, YM4-135. exhibit? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12221 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Could you take a look at it, please. 3 Does it contain a YM number and 1B number? 4 A. Yes. 5 Q. What are them? 6 A. 1B413, YM4-135. 7 Q. Do those numbers match the numbers contained on the 8 actual exhibit and its packaging in Prosecution Exhibit 331? 9 A. Yes. 10 Q. Placing on the ELMO Prosecution Exhibit 331C. 11 Do you recognize that form? 12 A. Yes. 13 Q. Is that an exact duplicate of the chain of custody 14 form you've just described, the chain of custody for 15 Prosecution Exhibit 331? 16 A. Yes. 17 Q. Placing on the ELMO Prosecution Exhibit 331B, as in 18 boy. Do you recognize that? 19 A. Yes. 20 Q. Is that a fair and accurate depiction of the evidence 21 tag attached to Prosecution Exhibit 331? 22 A. Yes, sir. 23 Q. Could you provide the witness, please, with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12222 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 Prosecution Exhibit 332. TC [MR. MILLER]: Honor, of Prosecution Exhibits 332A, B, and C. 4 MJ [Col SPATH]: 5 Q. 6 We'd also move for admission, Your Noted. Thank you. You have before you Prosecution Exhibit 332. look at that, please. Take a Do you recognize that item? 7 A. Yes. 8 Q. Did you collect that item? 9 A. Yes. 10 Q. And what is that item? 11 A. One brick rock. 12 Q. One brick block? 13 A. Rock. 14 Q. Rock? 15 A. Rock. 16 Q. From where did you collect it? 17 A. It does not indicate on here where it was collected 18 from. 19 Q. Would it have been somewhere within Site 4? 20 A. I'm sorry. 21 Q. Placing on the ELMO Prosecution Exhibit 332A. 22 23 Yes. From Site 4, yes. recognize that, what's in that photograph? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12223 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. What's contained in that photograph? 2 A. The rock in this bag. 3 Q. Is there a -- a K number in the photograph? 4 A. K482. 5 Q. All right. And if you would look at the actual rock 6 itself, the rock and the packaging, Prosecution Exhibit 332. 7 Does it have a K number attached to it? 8 A. K482. 9 Q. So the number on the exhibit matches the number on 10 the -- in the photograph, Prosecution Exhibit 332A, correct? 11 A. Yes, sir. 12 Q. Looking at the packaging itself again for -- and the 13 Exhibit 332, does it have a YM number and a 1B number? 14 A. Yes. 15 Q. Could you tell us, please, what those numbers are? 16 A. 1B416, YM4-138. 17 Q. Is there a chain of custody form attached to that? 18 A. Yes. 19 Q. Looking at the chain of custody form, could you tell 20 us the 1B number and the YM4 number? 21 A. Yes. 22 Q. Do those numbers match the numbers on the packaging 23 1B416, YM4-138. and the exhibit itself, Prosecution Exhibit 332? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12224 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes, sir. 2 Q. Placing on the ELMO Prosecution Exhibit 332C. 3 recognize that? 4 A. Yes. 5 Q. And is that an exact duplicate of the chain of 6 Do you custody form you've just described? 7 A. Yes. 8 Q. Lastly, placing on the ELMO Prosecution Exhibit 332B. 9 Do you recognize that item? 10 A. Yes. 11 Q. And what is that? 12 A. The NCIS evidence label for this item. 13 Q. Fair and accurate depiction of it? 14 A. Yes. 15 TC [MR. MILLER]: 16 for the admission of 332A, B, and C. 17 MJ [Col SPATH]: 18 Q. 19 Your Honor, the prosecution would move Noted. Thanks. Now, on a number of those items, Joe McNamara was listed as the person who collected them? 20 A. Yes. 21 Q. Why would his name be on the collection list? 22 A. The items that I saw were later in the day on the 23 first day, which is the day that we were evacuated very UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12225 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 quickly from the apartment. 2 signed later. 3 4 5 6 7 Q. So those chains of custodies were And he was -- was he the central repository for the evidence, the collecting agent? A. To the best of my recollection, he's the one who carried the box down the stairs to -- so we could leave fast. TC [MR. MILLER]: All right. Your Honor, the government 8 would also move -- I think we failed to earlier -- the 9 photographs. 10 Q. The photographs that you were shown regarding Site 11 Number 4, were they all fair and accurate depictions of what 12 was contained in them? 13 A. Yes, sir. 14 Q. All right. 15 A. No, they were a very good depiction of the scene. 16 TC [MR. MILLER]: 17 Q. 18 Was there anything distorting about them? Your Honor, the ---- And those were fair and accurate depictions of the scene as it appeared back in October of 2000; is that correct? 19 A. 20 TC [MR. MILLER]: Yes, sir. The government would move, Your Honor, 21 for the introduction of Prosecution Exhibits 388, 390, 389, 22 394, 392, 393, 395, 396, 398, 397, 404, 405, 402, 409, 410, 23 412, 848, 413, 418, 411, 406, 400, 399, 408, 407, 401, 386, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12226 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and 387. 2 MJ [Col SPATH]: 3 TC [MR. MILLER]: Noted. Thank you. All right. We'd also move for the 4 pictures from yesterday, which were Prosecution Exhibits 3 -- 5 excuse me, 447, 448, 449, 446, 451, 453, 452, 450, 440, 438, 6 802, 803, 439, 443, 444, 442, 441, 445, 454, 455, 456, 800, 7 857, 858 -- no, excuse me -- 457, 458, 459, and 460. 8 MJ [Col SPATH]: 9 Q. Noted again. Thank you. Again, it's pictures you saw yesterday regarding the 10 car and trailer itself. 11 were all conducting the search, correct? Those were taken at the time that you 12 A. Yes, sir. 13 Q. Were those fair and accurate depictions of the 14 trailer and the vehicle as it appeared that day? 15 A. Yes, sir. 16 Q. All right. Subsequent to the search of the -- or -- 17 in addition to the search of the look -- what we call the 18 lookout site, did you have occasion to go to a beach site in 19 Yemen? 20 A. Yes. 21 Q. All right. 22 23 And what caused you to go to the beach, this particular site that was chosen? A. We were advised this was the area where they had put UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12227 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the -- the boat in the water. 2 Q. And how did you travel to this particular site? 3 A. I don't recall, sir. 4 Q. All right. 5 alone? 6 A. We went in a group. 7 Q. All right. 8 A. Yes. 9 Q. Were there HRT members with you? 10 A. Yes. 11 Q. When you arrived at the site, was there a -- were 12 Did you go in a group or did you go And was it a search team? there Yemeni law enforcement personnel there? 13 A. 14 TC [MR. MILLER]: Yes. Your Honor, I have a series of 15 photographs. 16 can probably finish this up by noon, but ---- 17 18 If you want to take a short break, I think we MJ [Col SPATH]: TC [MR. MILLER]: 20 MJ [Col SPATH]: 22 23 About how many pictures do you have? 19 21 I understand. About 15. Okay. And then after Mr. Koffsky at 1:00, you have a couple witnesses left? TC [MR. MILLER]: right. We do have a couple witnesses left, We ---UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12228 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 TC [MR. MILLER]: 3 4 5 They are. I promise those are short. MJ [Col SPATH]: No, not a worry. Just trying to get a feel for timing. TC [MR. MILLER]: 7 MJ [Col SPATH]: Okay. Yeah, let's try to get this witness done so we don't continue to have her come back. 9 All right. Take ten and we'll come back. Thanks. 10 We're in recess. 11 [The R.M.C. 803 session recessed at 1131, 15 February 2018.] 12 [The R.M.C. 803 session was called to order at 1142, 13 15 February 2018.] 14 MJ [Col SPATH]: 15 order. 16 on the stand. 17 18 21 22 23 These commissions are called back to All the same parties are present. The witness remains Remember you're still under oath. Mr. Miller, go. TC [MR. MILLER]: 19 20 I promise. 6 8 And your impression is those are short? Thank you, Your Honor. DIRECT EXAMINATION CONTINUED Questions by the Trial Counsel [MR. MILLER]: Q. I think we were talking about you went to a beach site, which you believed was what? A. It was a beach site where we were advised the boat UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12229 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 was put in the water, the boat that had been involved in the 2 bombing. 3 4 5 6 Q. Let me show you a series of photographs, ask you if you recognize them. TC [MR. MILLER]: use the equipment? 7 MJ [Col SPATH]: 8 TC [MR. MILLER]: 9 MJ [Col SPATH]: 10 11 12 You may. 806, please. Prosecution Exhibit 806. Let's give it a second and we'll get it. Okay. Q. On the monitor is Prosecution Exhibit 806 for Identification. Do you recognize that photograph? 13 A. Yes. 14 Q. All right. 15 First, again, permission, Your Honor, to And what is contained -- what is depicted in that photograph? 16 A. That's the area we referred to as the beach area. 17 Q. And there seems to be a number of vehicles at that 18 19 particular site. A. To whom did those vehicles belong? The Yemeni officials, the ones on the right. 20 don't recall the ones on the left, the vans. 21 probably the vans we came in. 22 23 Q. Prosecution Exhibit 807, please. Those are Do you recognize what's contained in the photograph, 807? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12230 And I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. And if you could relate to the court what's in 3 Prosecution -- the photograph, Prosecution 807? 4 depicted? What is 5 A. 6 there. 7 Q. Prosecution 808, again, do you recognize that area? 8 A. Yes. 9 Q. Is that the beach area that was searched? 10 A. Yes. 11 Q. And the officials on the left-hand side of the 12 photograph? 13 A. Yemeni officials. 14 Q. 811, please. 15 A. Those are some of our divers. 16 Q. So you did a search of the land as well as the water 17 Those are some of the Yemeni officials that were surrounding it? 18 A. Yes. 19 Q. All right. 20 Do you recognize the persons in 811? Prosecution 420. If you would, please, go to Again, what's contained in this photograph? 21 A. The -- we call it the beach area. 22 Q. Was it a sandy area, or was it one that appeared 23 well-traveled? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12231 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 2 on it. 3 Q. Prosecution Exhibit 421, do you recognize that? 4 A. Yes. 5 Q. And what's contained in that photograph? 6 A. The beach area. 7 Q. The one where the search was conducted? 8 A. Yes, sir. 9 Q. 419, do you recognize that? 10 A. Yes, same. 11 Q. There appears to be a number of buildings. 12 It was sand, but it was packed, so people could drive Do you know what was contained in those buildings? 13 A. I do not. 14 Q. All right. 15 this area? 16 A. Yes. 17 Q. What's contained in this area? 18 A. This is -- we call it the beach area, but this would 19 20 21 Prosecution Exhibit 432, do you recognize be where a boat would be put in. Q. All right. And was that -- appears to be, I guess, called -- sort of an outbuilding there? 22 A. Yes. 23 Q. Prosecution 433, please. Do you recognize this? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12232 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes. 2 Q. Could you describe for His Honor what's contained in 3 that photograph? 4 A. It's a rocky beach area. 5 Q. Prosecution Exhibit -- is that part of the area that 6 was searched? 7 A. Yes. 8 Q. Prosecution Exhibit 425, again, that area? 9 A. Yes, the same search area. 10 Q. 424, do you recognize that? 11 A. Yes. 12 Q. In this particular photograph there appears to be 13 pointy sort of things at the edge of the sand. 14 what those were? 15 16 17 18 A. Do you recall They were like jagged pieces of metal or wood or -- indicating that you shouldn't put a boat in at that area. Q. Prosecution 423, please. Again, what's contained in that photograph? 19 A. The area we searched. 20 Q. And is it more of those sort of pointy warning ---- 21 A. Yes. 22 Q. ---- I guess, warning signs? 23 422, again, do you recognize that? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12233 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. The same beach area that we searched. 2 Q. 431, sort of a closeup of those pointed -- almost 3 look like arrows or spears coming out of the land; is that 4 correct? 5 A. Yes. 6 Q. All right. 7 8 9 10 11 434, again, could you describe that, please. A. The beach area with the -- this looks like metal, like rusted metal. Q. And those would be areas where you couldn't put the boat in, obviously, correct? 12 A. That's correct. 13 Q. 426, Prosecution Exhibit 426 for Identification, 14 again, the beach area? 15 A. Yes, sir. 16 Q. 427 seems to be a tent. 17 Did you all set up that tent, or was that tent already there? 18 A. I don't recall setting that tent up, sir. 19 Q. Okay. Prosecution 430, there seem to be some sort of 20 operation or some sort of equipment. 21 the court what was there? 22 A. I don't recall, sir. 23 Q. Prosecution 429. All right. Could you describe for This is a little closer UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12234 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 picture. 2 photograph, 429? 3 4 A. Could you describe what's contained in the A van, the people from our search team and from the FBI, and some sort of equipment. 5 Q. 428. 6 A. Personnel on the search team. 7 And what's contained in that photograph? right with the dark shirt. I believe I'm on the And the equipment and tents. 8 Q. And 437. 9 A. I believe it's a piece of red fabric. 10 Q. Was that recovered by another agent, Special Agent 11 Do you recognize what's contained in 437? Gaston? 12 A. Yes. 13 Q. All right. Let's -- let me ask you this: How did 14 you go about deciding how you were going to search this sort 15 of area, this flat beach area? 16 A. We did what's called a line search. 17 Q. All right. 18 A. So we do this in large areas, open areas. 19 20 21 And how do you conduct a line search? We basically get in a line and walk very slowly. Q. And did you draw a sketch of the area that you determined was to be searched? 22 A. 23 TC [MR. MILLER]: Yes. Pull that up, please. That's a sketch. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12235 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 All right. 2 Q. 3 On the screen is Prosecution Exhibit 715A. Do you recognize that? 4 A. Yes, sir. 5 Q. And could you describe to His Honor what this 6 represents? 7 A. 8 9 This is a depiction of the beach area that we searched, sir. Q. All right. And there's some markings on it. 10 let's start first with -- it looks like a triangle. 11 describe what's contained in the triangle? 12 importance of the triangle? 13 A. Again, Can you What's the So what I was trying to do in this sketch was 14 triangulation to show measurements of permanent objects, 15 because there -- none of these areas had any addresses on them 16 or any kind of markings like we have here. 17 coordinates where we were standing and where we went so we 18 could find it at another time if we had to. 19 20 Q. So we shot GPS There seems to be three coordinates here: pad; is that correct? 21 A. Yes. 22 Q. Is that a shack? 23 A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12236 A cement UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And a fence corner, correct? 2 A. Yes, sir. 3 Q. And it shows the jagged seawall in the photo -- in 4 the chart itself, correct? 5 A. Yes. 6 Q. Now, did you search the area inside the triangle? 7 that where the search was coordinated? 8 search? 9 10 11 A. Or where did you We searched the -- we walked the entire beach area, right in this -- where I have the drawing. Q. Okay. If you could -- we'll mark it. Show the -- if 12 you would, show the court, marking the exhibit itself, an 13 outline where it was you searched. 14 A. [Did as directed.] 15 Q. So it would be essentially the entire middle of the 16 Is photograph; is that correct? 17 A. Right. 18 Q. On the land part. 19 A. Yes. 20 Q. There was also a search conducted of the water? 21 A. Yes. 22 Q. And who conducted the search of the water? 23 A. The FBI divers. Yes. That was on the land part. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12237 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And approximately how long did the search last? 2 A. To the best of my recollection, a few hours. 3 Q. Now, this particular exhibit, Prosecution 4 Exhibit 715A, that is a sketch that you drew, correct? 5 A. That is my sketch, yes. 6 Q. And the measurements are -- and coordinates that are 7 contained on it are yours, correct? 8 A. Yes. 9 Q. Does the sketch, the schematic, fairly represent the 10 relationship between the various points that are indicated, 11 the shack, the wall, the bridge, et cetera? 12 A. Yes. 13 Q. All right. 14 I believe we had some sort of measuring device. Okay. You indicated that you used -- employed a method called a line search, correct? 15 A. Yes. 16 Q. Had you -- were you aware of that sort of methodology 17 prior to? 18 standard FBI procedure? It seems simple, but is that something that was a 19 A. 20 TC [MR. MILLER]: It is a common law enforcement search method. All right. 21 up Prosecution Exhibit 435. 22 [Pause.] 23 Q. If you could, please, pull 435, the exhibit, photograph. Do you recognize the photograph, Prosecution UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12238 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Exhibit 435? 2 A. Yes. 3 Q. And what's contained in that particular photograph? 4 A. That's the beach area, and that is part of doing a 5 6 7 line search. Q. So you employed 10 or 12 agents to do that; is that correct? 8 A. Yes. 9 Q. Were there HRT members there? 10 A. Yes. 11 Q. Did they assist in the line search? 12 A. They did. 13 Q. 4 -- 814, please. 14 Prosecution 814? 15 A. Yes. 16 Q. All right. 17 Do you recognize the photograph, And do those involve, again, the individuals involved in the line search? 18 A. Yes. 19 Q. All right. 20 photograph? 21 A. Yes. 22 Q. And are those the persons conducting the search? 23 A. Yes, sir. 815, please. Do you recognize that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12239 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. All right. 2 A. I do, yes. 3 Q. All right. 4 A. That's Special Agent Tracy Kneisler conducting a 5 6 And lastly, 436, do you recognize that? And what's contained in that photograph? search. Q. Are the photographs that we have shown you of the 7 beach and the line search that was conducted, are they fair 8 and accurate depictions of the beach as it appeared the day it 9 was searched, as well as the persons who conducted that line 10 search? 11 A. Yes. 12 Q. All right. 13 Anything distorting about the photographs? 14 A. No, sir. 15 Q. They are fair and accurate depictions, correct? 16 A. Yes, sir. 17 TC [MR. MILLER]: Your Honor, the prosecution would move 18 for the admission of 806, 807, 808, 811, Prosecution 19 Exhibit 420, 421, 419, 432, 433, 435, 425, 424, 423, 422, 431, 20 434, 426, 427, 430, 429, 428, 437, 8 -- 811 -- I've already 21 moved for that, excuse me -- 435, 814, 815, and 436. 22 MJ [Col SPATH]: 23 TC [MR. MILLER]: All right. Thank you. Noted. We would also move for the sketch that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12240 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 was compiled by this agent, which was Prosecution 2 Exhibit 715A. 3 MJ [Col SPATH]: 4 Q. A couple other matters before we let you go, Agent. 5 A. Yes, sir. 6 Q. Before the court lets you go. 7 TC [MR. MILLER]: Thank you. Noted. Excuse me. If we could provide the witness with 8 Prosecution Exhibit 430 -- excuse me, Prosecution 9 Exhibit 333A. 10 Q. I believe yesterday we provided you with the -- one 11 of the pieces of the trailer, 334 -- 334. 12 there were two pieces, similar pieces. 13 today 333. 14 recognize that? I'm going to show you If you would look at that, please. 15 A. Yes, sir. 16 Q. All right. 17 Do you And again, we're talking about the trailer? 18 A. Right. 19 Q. Was that taken from the trailer? 20 A. That's correct. 21 You indicated that That was the piece on -- the rusting piece on the top. 22 Q. All right. 23 A. Yes, sir. There were two of them, correct? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12241 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. 334, Exhibit 334, was the other one? 2 A. Yes. 3 Q. I'm showing you a photograph, Prosecution 4 Exhibit 333A. 5 photographs? 6 contained in that photograph? Do you recognize what's contained in those I'm sorry. 7 A. Yes. 8 Q. All right. 9 10 11 12 13 Thank you. And what is contained in those photographs -- in that photograph? A. Do you recognize what's Excuse me. These are the two sides of the trailer where the red fabric was on. Q. All right. And it has two K numbers; is that correct? 14 A. Yes. 15 Q. What are the two K numbers in that photograph? 16 A. They're pretty hard to make out, but it looks like 17 18 19 K274 or 275. Q. All right. If you would, please, look at the exhibit itself. 20 A. Yes. 21 Q. If you'd look on the evidence tag, is there a K 22 23 number on it? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12242 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And what is that K number? 2 A. K274. 3 Q. And that would match the K number for the piece of 4 wood with the red carpet around it, is that correct, the one 5 on top? 6 A. The one on top, yes. 7 Q. If you would, again, look at the exhibit itself. 8 Does it have an evidence tag on it? 9 A. Yes. 10 Q. All right. 11 A. I did. 12 Q. All right. 13 A. Yes. 15 Q. All right. And does it have -- does it have a YM number on it? 17 A. Yes. 18 Q. All right. 19 Does it reflect that you seized this item? 14 16 And did you prepare that evidence tag? YM3-104. Is there ---- if you could check, is there a number right under the YM3 in red? 20 A. Yes. 21 Q. What is that? 22 A. 102. 23 Q. All right. Is there a 1B number on it also? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12243 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. 1B490. 2 Q. All right. 3 If you'd look, is there an evidence receipt or what I call a green sheet attached to it ---- 4 A. Yes. 5 Q. ---- chain of custody? 6 Does it have a 1B number and a YM number on it? 7 A. Yes. 8 Q. It appears that the 104 that you previously testified 9 10 11 12 13 1B490, YM3-102. to -- does it look like it has some lines through it? A. Yeah, it looks like someone scratched off with red marker. Q. I'm going to place on the ELMO Prosecution Exhibit 333C. Do you recognize that? 14 A. Yes. 15 Q. Is that an exact duplicate of the chain of custody 16 receipt for Prosecution Exhibit 333? 17 A. Yes. 18 Q. Placing on the ELMO Prosecution Exhibit 333B. 19 recognize -- let me make it smaller. 20 ma'am? 21 A. Yes. 22 Q. And did you prepare that receipt? 23 A. Yes. Do you recognize that, That is my handwriting. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12244 Do you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And is it a fair and accurate depiction of the 2 evidence receipt that you prepared for Prosecution 3 Exhibit 333? 4 A. Yes. 5 Q. When I say "prepared" it, you prepared it at the time 6 you seized it? At or near the time? 7 A. 8 TC [MR. MILLER]: 9 Yes. Move for the admission, Your Honor, of Prosecution Exhibits 333A, B, and C. 10 MJ [Col SPATH]: 11 TC [MR. MILLER]: 12 All right. Thank you. Noted. All right. Provide the witness, please, with Prosecution Exhibit 320. 13 Q. Do you recognize Prosecution 320? 14 A. I just need a second to look at this. 15 16 17 Can you open this? Q. Do you recognize the exhibit, Prosecution Exhibit 320? 18 A. Yes. 19 Q. And what do you recognize that to be? 20 A. It's a piece of plastic. 21 Q. And did you seize that piece of plastic? 22 A. Yes. 23 Q. And from where did you seize it? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12245 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. This says "Search Site YM4." 2 Q. All right. 3 So that would have been the -- what we call the lookout? 4 A. That's correct. 5 Q. All right. In this photograph, I ask you if you -- 6 Prosecution Exhibit 420 [sic], do you see that piece of 7 plastic? 8 A. You said 320? 9 Q. Yes. 10 A. 320, yes. 11 Q. Okay. 12 A. Yes. 13 Q. Do you recognize that piece of plastic in that 14 photograph? 15 A. Yes. 16 Q. All right. 17 please. Could you look at the photograph? If you would look on the exhibit itself, Is there a YM and a 1B number? 18 A. Yes, YM4-116. 19 Q. And is there a 1B number? 20 A. 1B394. 21 Q. All right. 22 23 Is there a chain of custody form associated with that exhibit? A. Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12246 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. If you'd look at it, please. Does it have a YM number and a 1B number? 3 A. Yes, 1B394, YM4-116. 4 Q. All right. I'm showing you the chain of custody form 5 for it. 6 match the ones on the exhibit; is that correct? I take it the numbers on the chain of custody form 7 A. Yes. 8 Q. All right. 9 Exhibit 420C. I've placed on the ELMO Prosecution Do you recognize that form? Excuse me, 320C. 10 I'm sorry. 11 A. Yes. 12 Q. Is 320C an exact duplicate of the chain of custody 13 Do you recognize that form? form for Prosecution Exhibit 320? 14 A. Yes. 15 Q. Placing on the ELMO Prosecution Exhibit 320B, as in 16 boy. Do you recognize that? 17 A. Yes. 18 Q. Is that -- what's contained in that photograph? 19 A. Yes, that's the NCIS evidence tag. 20 Q. For Prosecution Exhibit 320? 21 A. Yes, sir. 22 Q. Fair and accurate depiction of it? 23 A. Yes, sir. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12247 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 TC [MR. MILLER]: admission of 320A, B, and C. 3 MJ [Col SPATH]: 4 TC [MR. MILLER]: 5 6 The government would move for the Noted. Thank you. One last item, Your Honor. Can we provide the witness with Prosecution Exhibit 311, please. Q. Just for clarification, I think you previously 7 indicated that there was a razor contained within that 8 particular item -- evidence bag; is that correct? 9 A. Yes, sir. 10 Q. In addition, is there any other item? 11 A. A blue box. 12 Q. All right. 13 TC [MR. MILLER]: 14 Thank you. I have nothing further, Your Honor. 15 MJ [Col SPATH]: 16 DDC [LT PIETTE]: 17 MJ [Col SPATH]: Okay. Defense Counsel, any questions? Defense takes no position. Special Agent LoCascio, I know I gave you 18 the order last time: 19 finished. 20 agents who are here. 21 until the matter is resolved. 22 expect that's going to take awhile, as you can obviously tell. 23 So please remember that. Don't discuss your testimony until we're As I've said, I know you'll talk to the other Just don't talk about your testimony But as I indicated last time, I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12248 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Do you have any questions about the order? 2 WIT: 3 MJ [Col SPATH]: No, sir. Okay. Then again, as I said last time, 4 and I continue to tell witnesses who come down here to testify 5 personally, I know it is appreciated by the people who have an 6 interest in this. 7 here. 8 9 10 11 It takes some time and effort to get down Thank you again. WIT: You are excused. Thank you, sir. [The witness was warned, excused, and withdrew from the courtroom.] MJ [Col SPATH]: We'll take a minute before we go, since 12 it's going to be abbreviated lunch, anyway. 13 yesterday, both sides approached the CISO, a different one 14 than who is here today, Mr. Lavender; and we were chatting -- 15 and were chatting with him about if he would assist in an 16 effort to continue to declassify matters surrounding the 17 alleged intrusion into attorney-client meetings. 18 After we broke He came down and talked to me and asked if I had any 19 objection to his assistance. 20 I've said, and I continue to say -- right? -- declassification 21 is important. 22 over-classify. 23 but I can't. I said of course not. I think And, frankly, sometimes it is easy to I don't -- I can't order it. I wish I could, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12249 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 So since I can't, to the extent possible I still urge 2 the government to declassify the matters surrounding this and, 3 of course, to look at matters that are supposed to be 4 classified, protect the national interest and national 5 security of the United States. 6 the confinement facility from things that may or may not have 7 been going on here. 8 9 What it doesn't do is protect So he is here to help, and they will help. work with them. Please But the government, hopefully, is also 10 working with the classification authorities to do it as well, 11 since I've been asking for that to be done for quite some 12 time. 13 people who do have an interest in this. 14 happened over the break last night. And I think it's important to get that information to But anyway, that 15 And, again, my CISOs stand by to help where they can, 16 but they have limits as well, and we have lots of people to -- 17 to assist out there on the government side. 18 the OCAs to the extent possible. 19 declassified, or at least get out redacted information from 20 the one or two classified hearings we had on the matter and 21 things like that. 22 anyway, I wanted you to know kind of the discussions we'd over 23 the break with the CISOs involved, at least to the trial Please work with Let's get this information I know you all are working on it, but UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12250 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 judiciary. 2 1300 we've got Mr. Koffsky, so please be in place 3 just a little bit before that so we're on time for him. 4 me know if there's any issues with the VTC or anything like 5 that. I will be in chambers until 1300. 6 7 Let I will see you then. Anything else we can take up right now, Trial Counsel? 8 TC [MR. MILLER]: 9 MJ [Col SPATH]: 10 DDC [LT PIETTE]: 11 MJ [Col SPATH]: No. Thank you very much, Your Honor. Defense Counsel? Nothing from defense, Your Honor. See you at 1300. We are in recess. 12 [The R.M.C. 803 session recessed at 1212, 15 February 2018.] 13 [The R.M.C. 803 session was called to order at 1258, 14 15 February 2018.] 15 MJ [Col SPATH]: 16 order. 17 again present. 18 All right. This commission is called to All the same parties who were present this morning are Is Mr. Koffsky available by VTC, Mr. Miller? 19 TC [MR. MILLER]: 20 MJ [Col SPATH]: Yes, Your Honor, he is. Okay. Then let's get him up on the VTC. 21 If you would administer the oath for me, and then I'll take it 22 from there. 23 TC [MR. MILLER]: I think Colonel Wells will be handling UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12251 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 this portion of the proceedings, Your Honor. 2 MJ [Col SPATH]: 3 TC [MR. MILLER]: 4 5 6 All right. With the court's permission. [The VTC was commenced with the witness.] MATC [COL WELLS]: Colonel John Wells. Mr. Koffsky, good afternoon. WIT: 8 MATC [COL WELLS]: I can, Colonel. Sir, before we begin, you are appearing here at Guantanamo Bay in the military commission case of 10 United States v. al Nashiri. 11 Spath. 12 13 14 15 16 17 This is Can you hear me? 7 9 Thanks. The presiding judge is Judge Sir, you have additional people in the room with you; is that correct? WIT: I do. I have my colleagues, Cheryl Hipp and Dwight Sullivan. MATC [COL WELLS]: All right, sir. And I've given their names to the court reporters and so they have them. 18 Sir, before we begin and I administer an oath, you 19 were requested to appear to testify. 20 questions about that and other ---- 21 WIT: 22 MATC [COL WELLS]: 23 WIT: Do you have any No, sir. ---- expectations? All right, sir. No, sir. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12252 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: To cover the formality, please, sir, 2 would you please stand and raise your right hand. 3 PAUL S. KOFFSKY, civilian, was called as a witness for the 4 military commission, was sworn, and testified as follows: 5 6 7 DIRECT EXAMINATION Questions by the Managing Assistant Trial Counsel [COL WELLS]: Q. Sir, please take your seat. 8 And I do want to ask: 9 Do you also have a pen? You have some papers in front of you. 10 A. I do. 11 Q. All right, sir. 12 MATC [COL WELLS]: 13 with the questioning? MJ [Col SPATH]: 15 MATC [COL WELLS]: 17 18 19 Thank you. Your Honor, would you like to proceed Okay. 14 16 Thank you very much. Yes, please. Thanks. With that, sir, Judge Spath will start the questions. WIT: Thank you. Questions by the Military Judge [Col SPATH]: Q. All right. Mr. Koffsky, in fact, my plan is I'm the 20 only one who's going to ask questions, because I don't want 21 you to be cross-examined or asked questions by the 22 prosecution, given your role -- or I think what your role is 23 with regard to the military commissions and the defense UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12253 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 office, and the same for the defense counsel, and putting them 2 in kind of an awkward position. 3 intro I want to go through and then to ask you some questions, 4 and we'll move from there, okay? 5 A. Yes, sir. 6 Q. All right. So my plan is I have a little So I'm Colonel Vance Spath. I'm the 7 Chief Trial Judge of the Air Force. 8 to the Military Commissions by the Chief Judge of the 9 Commissions, Colonel Pohl. 10 I've been detailed here Primarily what I'm interested in is trying to make 11 sure that Mr. al Nashiri is properly and adequately 12 represented according to the standard set forth in the 2009 13 Military Commissions Act. 14 been my end state since around September of 2017 when the 15 events began to unfold that kind of led you -- or my request 16 for you to come and testify. That's my end state, and it has 17 I would say that my concern about it is increasing as 18 time passes since we are, frankly, coming up on half a year in 19 our current situation here. 20 continue to move forward to have you come testify. 21 frankly, it all came to a head when the DoD civilians, two of 22 them, refused to honor subpoenas and orders of the commission 23 to appear to explain certain matters that I believed was I say that to explain why I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12254 And UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 necessary -- or were necessary to resolve some of these 2 issues. 3 I appreciate, I really do -- and I have said this to 4 the other witnesses as well. 5 appreciate you adjusting your calendar and schedule. 6 you're busy, and I recognize the impact it takes to come 7 testify for us. 8 9 I say it all the time -- I I know So I appreciate it. For background for everyone, including those observing, it's important to know -- I think most people know 10 it, but again, we have a lot of observers who travel down 11 here -- the United States Government has chosen to try 12 detainees here at GTMO, and the United States Government has 13 chosen to refer this case as capital, and frankly, someone 14 else has determined that I should be detailed to preside over 15 the case. 16 of Mr. al Nashiri, that he would qualify as an indigent 17 defendant anywhere else, and, as such, we certainly owe him 18 adequate and appropriate resources on his defense team. 19 I think it's fair to say, given the circumstances Also kind of as a background -- I've said it many 20 times down here -- I strongly -- the commission strongly 21 believes we owe the victims, family members, frankly, the 22 U.S., Mr. al Nashiri, and all the other detainees, some 23 certainty of conclusion with these proceedings, because UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12255 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 they've been ongoing, as you know, for several years. 2 I say all that as kind of what I'm trying to do here and where 3 I'm trying to go. 4 5 And so So let me ask a few questions just for background. Can you tell me what your current job is? 6 A. Yes, Your Honor. I actually have three current jobs. 7 I'm the Deputy General Counsel for Personnel and Health Policy 8 of the Department of Defense. 9 Secretary Mattis last August 4, the Senior Deputy General I am also, by appointment of 10 Counsel of the Department of Defense. 11 Acting Principal Deputy General Counsel of the Department of 12 Defense. 13 14 Q. And I am currently the And then, in general, what is your relation to the defense community for the commissions? 15 A. In general, sir, I am responsible for overseeing the 16 defense counsel services for military commissions. 17 role I -- in that role I provide advice, support, and, when 18 requested, advocacy before officials of the Office of the 19 Secretary of Defense for the chief defense counsel. 20 In that I do not believe that my role includes directing the 21 chief defense counsel to perform any act or not perform any 22 act. 23 that is pretty much the limit of -- of what -- what I do with I do, however, write his performance appraisal. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12256 And UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 respect to performing traditional supervisory functions. 2 I'm not even allowed to allocate resources to the 3 defense. 4 chief defense counsel's requests to the convening authority 5 for resources. 6 Q. I am entitled to receive courtesy copies of the And then I had an opportunity to look at your bio, 7 but there -- again, there are people here observing who have 8 traveled down here. 9 background, or how you kind of got from, you know, law school 10 11 Can you just, in general, give us your to where you currently are? A. I would be glad to, Your Honor. I graduated from 12 college in 1973, and from law school in 1976. I've been a 13 member of the bar since June or July of 1977. When I was 14 first out of law school, I practiced as an associate with a -- 15 a Washington law firm for almost three years. 16 I then joined the Department of Defense to serve on 17 the staff of a task force inquiring into whether the 18 department ought to have an Inspector General. 19 assignment lasted about 18 months. 20 That It was a temporary job. At the end of that period an opening came up in the 21 Office of General Counsel and the Office of the Deputy General 22 Counsel, what's now known as the Office of the Deputy General 23 Counsel for Personnel and Health Policy. I joined that office UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12257 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 in the -- I think it was September of 1980. 2 On December 11, 1994, I was appointed Deputy General 3 Counsel in charge of that office; have served in that role 4 continuously since then. 5 August the 4th of last year I have been the Senior Deputy 6 General Counsel of the Department of Defense, the senior DoD 7 career lawyer. 8 9 Q. All right. And as I previously mentioned, since And then not that -- I don't -- I'm not asking if you've studied these things closely or anything, 10 but, in general, are you familiar with the Military 11 Commissions Act and the Manual for Military Commissions and 12 the regulations? 13 A. In general. 14 Q. And so for us, I think, just so people understand 15 kind of your role or why it's there, are you familiar with the 16 military commission regulation that provides that the chief 17 defense counsel is going to report directly to you, to the 18 Deputy General Counsel, Personnel Health and Health Policy, of 19 the Department of Defense? 20 A. Yes, sir. 21 Q. And so as I read it years ago, I assume that's why 22 you're lucky enough to have this responsibility, is because of 23 that regulation? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12258 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes, sir. 2 Q. Okay. 3 A. Uh-huh. 4 Q. So the chief defense counsel overall for the 5 commissions, your understanding is, that person is who? 6 A. Right now it's Brigadier General John Baker. 7 Q. For the -- for the al Nashiri case, for this case, 8 Mr. al Nashiri's case, are you aware that he has relinquished 9 those responsibilities? 10 11 A. Yes. Yes, Your Honor. And the acting chief defense counsel for this case is Colonel Wayne [pause] ---- 12 Q. Aaron. 13 A. Whose name is ---- 14 Q. That's right. 15 A. ---- Aaron, yes. 16 Q. Does that -- does Colonel Aaron sound familiar? 17 A. No disrespect to the good Colonel, please. 18 Q. Not at all. 19 Does that sound familiar, Colonel Aaron is the, for this case, the acting chief defense counsel? 20 A. [Nodded head.] 21 Q. Okay. 22 23 And that's positive for the court reporters. So in that role, because he is the acting chief defense counsel, do you have the same kind of relationship UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12259 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 with him that you would with General Baker? 2 A. Your Honor, for this case, yes. 3 Q. Are you aware of kind of the circumstances that led 4 to General Baker relinquishing those responsibilities for this 5 case? 6 A. I am, Your Honor. 7 Q. In relation to other personnel in the military 8 defense office, do you have any supervisory responsibilities 9 over those other attorneys? 10 A. Excuse me. Your Honor, with respect to the principal 11 deputy chief defense counsel, I am the reviewer on -- on that 12 officer's performance appraisals for those military 13 departments that have two signatures on the appraisals. 14 all the other personnel in the office, I have no supervisory 15 responsibilities. 16 Q. All right. For And again, it's not a homework test, so 17 I'm going to read you the provision out of the -- the 18 regulation, because I recognize you've got lots of different 19 responsibilities. 20 Military Commissions, are you aware of -- it's 9-1.a.3., and 21 the language is that, "The chief defense counsel shall ensure 22 that all personnel assigned to the OCDC," the Office of 23 Commissions Defense Counsel, will "review and attest that they But if -- in the Regulation For Trial By UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12260 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 understand, and will comply with, the Military Commissions 2 Act, the Manual for Military Commissions, the Regulation for 3 Trial by Military Commissions, all Supplementary Regulations 4 and Instructions issued in accordance with these, and the 5 orders of the commission"? 6 A. I am aware, Your Honor. 7 Q. And so given that the chief defense counsel's role, 8 and that seems to be that he will ensure that all personnel 9 under him will review and attest that they will do those 10 things, they understand them, they will follow the orders of 11 the commission. 12 have done that with the personnel who work for him within the 13 defense office. 14 A. I assume it's your belief General Baker would Well, Your Honor, that is General Baker's 15 responsibility. 16 fulfilled that responsibility. 17 Q. I have no direct knowledge in what way he Understand. And then with the change to Colonel 18 Aaron, I assume same answer. 19 under the regulation, but you don't know if or how that was 20 done? 21 A. It would be his responsibility I -- Your Honor, I assume -- yes. The answer is yes. 22 I assume, as with General Baker, Colonel Aaron did fulfill 23 that responsibility. I do not know in what way he did so. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12261 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. In relation to the issue related to -- and you can 2 probably tell, I'm being very cautious. 3 trying to infringe on any privileges. 4 get into where we're discussing whether or not I believe we 5 should release privileged information. 6 I don't -- I am not I don't even want to I have crafted my questions today so that, hopefully, 7 this will keep your guard reasonably down. 8 to ask about privileged conversations or even, ultimately, if 9 there were some, try to pierce that privilege right now. I am not looking 10 at all the goal right now. 11 background and try to understand some road ahead for the 12 commission, given the framework I talked about at the 13 beginning. 14 Not It really is to get some I assume you're aware that -- whether anyone agrees 15 with it or not, but you're aware that I've ruled that General 16 Baker does not have -- does not have -- the unilateral and 17 unreviewable discretion to excuse defense counsel in this 18 commission case? 19 A. Yes, sir. 20 Q. Did you have an opportunity to review that particular 21 ruling? I am aware, Your Honor. Did you review it? 22 A. Yes, Your Honor. 23 Q. And so fair -- this is going to summarize it -- I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12262 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 think maybe oversimplified a bit, but, again, mostly for 2 people who are kind of paying attention down here -- that my 3 ruling was based on my determination that the Manual for 4 Military Commissions, particularly Rule 505(d)(2)(B), contains 5 an ambiguity both within it, within the rule, and then an 6 ambiguity within the manual, thus requiring what I believed 7 was kind of using the rules of statutory construction which 8 resulted in me determining General Baker does not have that 9 authority when defense counsel have entered appearances before 10 the commission but, in fact, I do. 11 authority to excuse outside appointed learned counsel, because 12 they're kind of a separate entity. 13 what you remember from that ruling? 14 15 16 A. And he is not the Is that a fair summary of From what I remember, yes, Your Honor. I haven't read it for quite some time. Q. Okay. And are you aware that I haven't found any 17 evidence that supports the defense contention that there has 18 been actual intrusions into attorney-client communications 19 between this accused and his attorneys detailed to this case? 20 21 22 23 A. Your Honor, that has been reported to me. I have no direct knowledge of Your Honor's ruling in that respect. Q. Okay. Understand. answers the next question. And that -- so that, I think, Have you reviewed the filings, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12263 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 classified and unclassified, related to the issue of alleged 2 intrusions into attorney-client meetings? 3 A. No, Your Honor. 4 Q. Are you aware that General Baker has not excused -- 5 and maybe because there's been no request -- has not excused 6 counsel from other accused's cases due to this alleged 7 intrusion that we are dealing with? 8 A. I have no knowledge of that, Your Honor. 9 Q. Okay. Did anyone make you aware that Colonel Aaron, 10 again, the acting chief defense counsel for my particular 11 case, released all detailed defense counsel who had remained 12 after General Baker's actions? 13 released the two DoD civilians and the learned counsel, after 14 that, specifically in January of 2018, Colonel Aaron released 15 all detailed defense counsel who remained detailed to 16 represent Mr. al Nashiri? So after General Baker 17 A. I am aware, Your Honor. 18 Q. And that by doing that ---- 19 A. I'm ---- 20 Q. Sorry. 21 A. I'm sorry, Your Honor. 22 23 I'm aware that he undetailed three counsel who had not yet entered appearances in the case. Q. Yes. And that that occurred after I issued an order UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12264 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 requiring anyone detailed to the case to make an appearance at 2 our next session. Does that kind of conform? 3 A. I was not aware of that, Your Honor. 4 Q. So, sir, kind of given where we are right now, you 5 are aware, I think, that Lieutenant Piette is the only 6 detailed military defense counsel to Mr. al Nashiri's capital 7 case; is that fair? 8 A. Yes, sir. 9 Q. So it appears to me this one's unique, right? We 10 have -- we have an issue with the orders I've issued, and 11 we're kind of not getting a lot of traction in getting those 12 followed. 13 beginning, kind of what your role is in relation to the chief 14 defense counsel and the defense bar here. 15 And so I -- I recognize what you said at the I guess I would ask: What do you think your current 16 role is for this case given its -- I think it's fair to call 17 it its kind of unique appearance right now? 18 your role in regard to this, or ---- 19 A. No, sir. Does that change My role would be to consult and advise 20 Colonel Aaron, to the extent that he requests such advice and 21 consultation. 22 with the General Counsel of the Department of Defense, now the 23 Acting General Counsel, I would, at his request, facilitate If at any time Colonel Aaron desired to meet UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12265 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that meeting. 2 additional resources, I would advocate for those resources 3 with the convening authority, again, at his request. 4 5 Q. A. 7 aware. 8 Q. 10 All right. Shifting gears to some other personnel, are you aware of who Ms. Eliades and Ms. Spears are? 6 9 To the extent that Colonel Aaron requests Your Honor, I am aware that they have -- yes, I am All right. And are you aware those are two of the counsel who were released by General Baker from representing the accused in this case? 11 A. Your Honor, yes, I'm aware. 12 Q. Do you know if they are still employed by the 13 14 Department of Defense? A. Your Honor, I have no direct information on that, but 15 my understanding is that the answer to Your Honor's question 16 is yes. 17 Q. Okay. And then, Mr. Koffsky, is it your belief 18 they're still employed in the Military Commission Defense 19 Office? 20 A. Your Honor, again, I have no direct knowledge, but I 21 believe that they are, and I have recently seen an 22 organizational chart showing that they are. 23 Q. I think I know the answer to this; I'll ask it: UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12266 Have UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you reviewed the employment documents, the contracts and the 2 employment documents related to Ms. Eliades and Ms. Spears? 3 A. No, Your Honor, I have not. 4 Q. Were you aware -- I don't know if you were aware of 5 kind of the issue this week, that those two civilians were 6 ordered to appear before the commission, had been subpoenaed, 7 and refused to appear despite the subpoena? 8 A. 9 Honor. 10 Q. I have been informed of those -- those facts, Your And we kind of laid out the chief defense counsel's 11 obligations to ensure that people within the organization 12 comply with commission orders. 13 that regulation. 14 role, given the regulation, is to ensure that people within 15 the organization comply with commission orders? 16 A. One of the -- we went through So is it fair to say that Colonel Aaron's Your Honor, in general I would agree with that. But 17 the devil, of course, is in the details, and I have no view 18 on -- on the particular question before Your Honor related to 19 Ms. Eliades and Ms. Spears. 20 Q. I guess the question would be -- there is no doubt 21 that people disagree with orders from me. 22 back doing courts-martial and when I'm sitting here at the 23 commissions, typically one or the other, right, side do not Frankly, when I'm UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12267 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 like or disagree with the order. 2 Every now and then both sides don't like it. 3 part, going in, one side or the other disagree with whatever 4 order I issue. 5 That's pretty standard. I guess my -- let me ask this: But for the most Are you aware of any 6 regulatory language that allows people within the defense 7 organization to disregard the order rather than seek 8 assistance from an appellate court or a superior court or like 9 a district court or something like that? 10 A. Your Honor, I'm aware of a canon of professional 11 responsibility that allows individuals before a court or, in 12 this case, the commission, who believe the order is invalid 13 openly to state such and not comply with the order; but I'm 14 not aware of any language in the commissions regulations that 15 would allow that. 16 commissions regulations. 17 just unaware of it. 18 Q. I am not, Your Honor, an expert in the I understand. There may be such a provision; I'm I guess in that review of professional 19 responsibilities, they all appear to have Rule 1.16(d). 20 appears to be in all of their professional responsibilities, 21 including my own, and that is that if a commission orders -- 22 or a tribunal, to be accurate -- if a tribunal orders you to 23 continue representation, even if good cause has been shown not UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12268 It UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to, you have to continue representation. 2 with that provision? Are you familiar 3 A. I am familiar with that provision, Your Honor. 4 Q. Okay. Because where I struggle -- and not with you 5 at all, it's as I deal with these issues. 6 figure out is what ethics -- or what rule of professional 7 responsibility allows me to simply disagree -- sorry, disobey 8 a court order if I disagree with it? 9 A. What I'm trying to Your Honor, I think that that's a very good but 10 general question, and I have trouble answering it in the 11 abstract. 12 Q. I understand. Well, here, of course, it is the 13 specific: 14 client until another court steps in and says the commission 15 doesn't have the authority or you are excused for good cause, 16 I mean, something like that. 17 A. You are ordered to continue to represent your Make sense? Your Honor, it does make sense. I'm also aware that 18 General Baker's position -- and I assume, without knowing the 19 position of the two attorneys you've mentioned, is that 20 General Baker's -- General Baker has the authority to detail 21 and to undetail counsel. 22 Your Honor and is now before Judge Lamberth. 23 Q. That's fair. I mean, that issue is -- was before Kind of before Judge Lamberth. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12269 It's -- UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I'm hoping that Judge Lamberth will rule on that issue. 2 fear he's going to rule on one other issue, and that's the 3 contempt issue, and not help with the -- kind of the 4 underlying real question we all need answered -- right? -- Am 5 I right or is General Baker right? 6 I I mean, that's fair. I guess my question is, you know, in the -- in where 7 we are right now, I more than appreciate General Baker and I 8 disagree. 9 commission. He outranks me, but in this weird structure I'm the And I'm just -- I'm trying to figure out where 10 the authority comes from to simply disobey an order you 11 disagree with, again, absent -- if Judge Lamberth stayed these 12 proceedings -- I think you know this -- I would stop right 13 now. I'd walk off the bench. I'd go home. 14 What I would not do is tell Judge Lamberth, thanks 15 for your input, I disagree with you, so we're going to keep 16 going until some other court steps in and does something. 17 mean, I truly believe that would be my response to that. 18 that's what I'm trying to figure out here, is we have an 19 organization that doesn't have a stay, doesn't have a contrary 20 ruling, and simply refuses to follow orders from the 21 commission, and we're in limbo. 22 23 So tell me if I'm correct. I And Do you believe that you can or should -- probably more accurately -- should influence UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12270 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 that behavior in any way, given your role in the regulation? A. With the greatest respect for you and the commission Your Honor, no, sir. Q. And that -- fair answer, right, given the reading of 5 the regulation and what your responsibilities are. 6 debate. No -- no 7 Let me just make sure I don't have anything else. 8 Okay. 9 10 11 12 I know -- I know I told you they're not going to get to ask questions. They're not. I just want to make sure they don't want to say anything before I let you go. Colonel Wells, anything? MATC [COL WELLS]: Your Honor, I do have some questions 13 that I would present to you to consider asking Mr. Koffsky 14 and, like you do with the panel, share it with both counsel 15 before it goes to you. 16 whether they're worthy or not, you'd make that determination. 17 MJ [Col SPATH]: 18 MATC [COL WELLS]: 19 MJ [Col SPATH]: You would consider those and then, Are they in writing? Yes, sir. Okay. Show them to Lieutenant Piette. 20 Let me look at them. 21 might have the information I need. 22 it is they're concerned about, Mr. Koffsky. 23 I may or may not ask any of these. I'm just going to see what And same for you, Lieutenant Piette. If there's any UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12271 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 issues that you're concerned about, let me know what they are. 2 I don't know if I'll ask anything. 3 [The military judge conferred with courtroom personnel.] 4 MJ [Col SPATH]: First, Lieutenant Piette, any concern 5 about those? 6 not, but any concern about those questions? Again, I don't know if I'm going to ask them or 7 DDC [LT PIETTE]: 8 MJ [Col SPATH]: 9 All right. We'll mark them in a minute. Let me just see them. 10 11 No, Your Honor. The third one down, does that say "qualifying authority"? 12 MATC [COL WELLS]: 13 MJ [Col SPATH]: Yes, sir. Okay. I think the others are all either 14 answered or they're easy to answer. 15 "qualifying authority" is. 16 process, maybe. 17 18 19 Q. I don't know what a It just shows my ignorance in the Is the general counsel the qualifying authority for Ms. Spears and Ms. Eliades, do you know? A. Your Honor, I believe that question refers to DoD 20 Instruction 1442.02, which delegates to various general -- 21 deputy general counsels in the Department of Defense the 22 authority to determine the qualifications of attorneys in 23 specified organizations. One of the organizations that's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12272 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 specified under the Deputy General Counsel for Personnel and 2 Health Policy, one of my jobs, Your Honor, is the -- is the 3 Office of the Chief Defense Counsel, the Military Commission 4 Defense Organization as it's now known. 5 That simply means that the deputy general counsel may 6 determine whether an attorney is qualified to be hired as a 7 certain grade level: 8 9 10 Q. GS-12, GS-13, something like that. And so is that you in relation to Ms. Eliades and Ms. Spears? A. It would be. I have no recollection whether I 11 actually approved their qualifications or not. 12 well have. 13 Q. I may very I just don't know. Sure, I understand. And then the only other piece I 14 had before I let you go, I don't want to know what actions are 15 being contemplated, if any, or what impacts this is having on 16 General Baker, Colonel Aaron, Ms. Eliades, and Ms. Spears. 17 a general sense, are you looking at what appropriate actions 18 should be taken, if any, due to the conduct that is occurring? 19 A. In Your Honor, at this point, with the greatest respect 20 to you and the commission, I believe such consideration would 21 be premature. 22 I'm the right person to do it. 23 Q. And indeed, should it become ripe, I'm not sure I understand that because of your role in the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12273 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 oversight or the supervisory chain of the chief defense 2 counsel. 3 A. Yes, Your Honor, among other reasons. 4 Q. Okay. 5 MJ [Col SPATH]: 6 7 I appreciate that. We're going to mark, Colonel Wells, your questions as Appellate Exhibit 393E. MATC [COL WELLS]: And, Your Honor, the responses were not 8 satisfactory and they were incomplete as it relates to 9 qualifying authority. 10 MJ [Col SPATH]: I understand. We're not -- I am just 11 trying to get some information, and I have exactly what I 12 needed. 13 Q. Mr. Koffsky, I do appreciate ---- 14 A. Yes, sir. 15 Q. ---- I know it takes time to come do this. It's not 16 fun to get called to testify, I know that. 17 work -- as I hope you could tell, I did not want to dive into 18 privileged information or even come close to it. 19 my goal all along, where I can avoid it. 20 21 22 23 I really did That's been And so thank you. And then I know Mr. Sullivan is there. He and I know each other as well, so just say hello to him. A. Thank you, Your Honor. I appreciate the commission's courtesy. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12274 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: Okay. Thank you very much. You can 2 disconnect. 3 [The witness was excused and the VTC was terminated.] 4 MJ [Col SPATH]: All right. I appreciate it, Colonel 5 Wells. 6 not going to do anything, that's what I heard. 7 said so. 8 anything about misconduct right now, nothing, I also -- what I 9 hear is General Baker disagrees with you, and so we'll figure 10 it out. 11 crowd. 12 I'll tell you what I heard. Right? I heard somebody who is In fact, he Not only am I not going to -- not doing That's what I keep hearing. MATC [COL WELLS]: Yes, sir. Status quo from that From the prosecution's 13 perspective, I think the response, particularly about the 14 qualifying authority, also includes a professional 15 responsibility and the conduct of attorneys within DoD, and 16 that is clearly fixed, I think, within the general counsel's 17 office. 18 I think the next question, obviously, is who can 19 direct or order the chief defense counsel to take particular 20 actions if they are improper? 21 particular case, the acting senior attorney, Colonel Aaron, if 22 they're believed improper, particularly if they're in 23 violation of the commission's directives and orders or the Who can direct, in this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12275 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 regulation? MJ [Col SPATH]: Pentagon. What I hear is radio silence from the That's what I hear. 4 MATC [COL WELLS]: 5 MJ [Col SPATH]: Sir ---We've been at this for five months. 6 hasn't even reviewed the classified or unclassified issues 7 that underlie the alleged intrusions that I found didn't 8 happen seven times. 9 important. 10 11 He I mean, it's over something that's MATC [COL WELLS]: Hands off sir, laissez faire. We're going to let the ---- 12 MJ [Col SPATH]: 13 MATC [COL WELLS]: 14 MJ [Col SPATH]: Agree. ---- subordinates take the action. And again, what I -- frankly, what I have 15 from you all right now is the next action is I refer it to 16 Colonel Pohl, and then Colonel Pohl does whatever Colonel Pohl 17 does. 18 So we report him for misconduct. So what? What does 19 that do to get Mr. al Nashiri defense counsel? 20 this five months. 21 already said so. 22 I issued an order, of course. 23 the two civilians actually show up and testify, because We've been at Colonel Aaron is not going to do it; he's In fact, he undetailed everybody right after He's done nothing to make sure UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12276 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 they're still working. 2 that's -- right? 3 They clearly violated the subpoena, That's obvious. We know what's going on. The issue is why is it on me? 4 MATC [COL WELLS]: 5 MJ [Col SPATH]: Why is it on me ---- Yes, sir. ---- to continue to move a process 6 forward the DoD doesn't want to move forward? 7 how it appears. 8 9 MATC [COL WELLS]: Because that's Sir, if I could address that. The regulations and manuals structuring the commission are -- 10 provide certain responsibilities and is premised, I believe, 11 on good faith, a fair reading of the authorities. 12 circumstance, I believe, is built on a false narrative and 13 belief, which you ruled previously related to intrusions. 14 then it stems from a disagreement there. 15 reconsideration or stand at the podium and explain that we can 16 no longer represent our client competently under these 17 conditions at the Joint Task Force, we're now in the mode of 18 creating dysfunction by not attending. 19 So this Instead of ask for Now, the other point on this is there has to be 20 consequences. 21 commission that detail the circumstances and the misconduct 22 that you see, this commission sees, then there is no action 23 for contempt, there is no action for -- under 109 for However, without findings of fact from the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12277 And UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 disbarment. 2 MJ [Col SPATH]: 3 MATC [COL WELLS]: 4 MJ [Col SPATH]: 5 findings of fact for me. 6 don't know what more -- right? 7 contempt? 8 Judge Lamberth -- sorry, Judge Lamberth. 9 Lamberth says my contempt authority is not as I believe it is? But you all can do things, too. Yes, sir. Let me get to that. I know, but -- yeah, I -- but you have I guess so. 10 MATC [COL WELLS]: 11 MJ [Col SPATH]: I held General Baker in contempt. I Could I hold Colonel Aaron in But what if Colonel Lamberth -- or What if Judge Sir ---Why would I waste time? And that is why 12 I am pausing, right? 13 have six contempt hearings and have Judge Lamberth tell me six 14 times I got it wrong. 15 That is -- what I don't want to do is That's not effective. MATC [COL WELLS]: Sir, absolutely. 16 the timing of this. 17 honoring your rulings. 18 is ---- You know, our theme here has been 19 MJ [Col SPATH]: 20 MATC [COL WELLS]: 21 If I could address Learned counsel is not released. He I concur. To the extent practicable, he is available. 22 MJ [Col SPATH]: 23 MATC [COL WELLS]: And you have findings of fact about that. Yes, sir. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12278 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 MATC [COL WELLS]: 3 4 Lots of findings of fact. So the posture that we are in are still in the fact-finding mode, attempting to get the attorneys ---MJ [Col SPATH]: We're not. We're not fact-finding. 5 have ruled there were no intrusions. 6 want? 7 MATC [COL WELLS]: 8 MJ [Col SPATH]: 9 What more facts do you Sir ---I have ruled there are no intrusions into attorney-client relationships. I have ruled there is not good 10 cause to be released. 11 obstinance, and it is abandonment of representation in the 12 face of court rulings. 13 fact-find. 14 MATC [COL WELLS]: 15 MJ [Col SPATH]: 16 MATC [COL WELLS]: I It's not fact-finding. It is We're not fact-finding. You all can Your Honor ---I am not fact-finding. May I suggest for the commission, I 17 understand that on the underlying reasons that -- gave for the 18 counsel ---- 19 MJ [Col SPATH]: 20 MATC [COL WELLS]: 21 longer represent. 22 evidence. 23 Right. ---- to believe that they could no But the subpoena is always issued to obtain Not representation, but evidence. MJ [Col SPATH]: Correct. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12279 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: And you still have not made the final 2 conclusion whether or not, the attorneys who are requesting in 3 their application, good cause stands for them. 4 know, if they appeared at the podium, you might say, well, I 5 didn't think of it that way. 6 You've caused me to think about it. 7 good cause that prevents you from effectively representing 8 your client. 9 commission to ---- 10 11 For all we I didn't see it that way. By golly, you do have I am going to take appropriate action in this MJ [Col SPATH]: Yes, I could reconsider. But if you go back to all of the rulings I've already made ---- 12 MATC [COL WELLS]: 13 MJ [Col SPATH]: Agreed. ---- I have said those two don't have 14 good cause. 15 was a direction to come and explain to me what their good 16 cause is, because General Baker doesn't have the authority. 17 And I want to know what it is. 18 what we've already heard about this alleged intrusion? 19 What that was was an offer -- not an offer. MATC [COL WELLS]: It What am I missing other than Sir, I understand. So what has 20 happened since that time is that you have taken the prudent 21 steps in your docketing orders to direct and order counsel who 22 are still detailed to appear, and they have ---- 23 MJ [Col SPATH]: But they're not coming. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12280 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: Mr. Kammen has taken collateral action 2 in Indiana to try to avoid that under the auspices of a habeas 3 action, and that has yet to play out; and it's a long time to 4 play out already. 5 decision on that point. 6 We're still in the midst of that; no Ms. Eliades and Spears also have taken the position 7 not to comply with the orders, but you prudently have 8 requested subpoenas to be issued. 9 also exercised authority under the regulation to ask if the That was one step. You 10 supervisory chain was going to talk to General Schedule 11 employees, civilian attorneys, if they would comply with 12 directives and rulings. 13 That played out this week. And as you have pointed out, Colonel Aaron says that 14 he took what he believed to be prudent action by building 15 orders in Defense Travel Service system -- which I think we 16 know in common experience, when you build orders, electronic 17 notices are sent to the employees. 18 occurred. 19 that. 20 speak with them? 21 implore them to comply with the court's order? 22 questions still remain. 23 I don't know if that We could ask Colonel Aaron if he followed up with Unanswered questions from Colonel Aaron are: Did you e-mail them? MJ [Col SPATH]: Did you write them and Let me ask you this: Those pointed They got a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12281 Did you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 subpoena. They were ordered to appear, so ---- 2 MATC [COL WELLS]: 3 MJ [Col SPATH]: Here's my ---Yes, I understand Colonel Aaron has 4 responsibilities. 5 responsibilities are. 6 telling me they're not going to do anything. 7 just heard. 8 9 We read them. He knows what his He works in a supervisory chain that is MATC [COL WELLS]: That's what I So what I would suggest is that the commission is trying everything prudently to make sure that 10 all avenues are exhausted, and you are going to come to a 11 point, perhaps pretty rapidly, where you have exhausted all 12 avenues to gain essential facts that relate to whether or not 13 there was good cause and their compliance with rules ---- 14 MJ [Col SPATH]: 15 MATC [COL WELLS]: 16 I disagree with that. ---- and you will be left with no other decision than to make adverse findings to them. 17 MJ [Col SPATH]: 18 MATC [COL WELLS]: 19 MJ [Col SPATH]: I have. Yes, sir. What I have done is given them the 20 opportunity to come and explain, basically reconsideration, 21 what was I missing. 22 same: People were listening. 23 that. There's no evidence of that, not to their client. What I presume I would have heard is the Well, there's no evidence of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12282 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: There will come a point in this 2 process, sir -- just to back up, though, on our linear 3 sequence here, the employees did not comply with the subpoena. 4 And I would ask that MCDO look at 18 U.S.C. 847. 5 have a requisite that commission or the convening authority 6 can make specific findings of fact, and there are criminal 7 penalties that can be referred to the Department of Justice 8 for failure to adhere to a subpoena. 9 10 11 12 13 MJ [Col SPATH]: And it does So where is the convening authority on this? MATC [COL WELLS]: Yes, sir. They are, first and foremost ---MJ [Col SPATH]: I think you're feeling my frustration, is 14 it feels like I'm attempting to move this forward. 15 I can keep moving it forward, and Lieutenant Piette can sit 16 there and take no position, despite what I think are his bar 17 obligations, nobody seems to care about that either in this 18 chain. 19 made to the contrary, we're going to take that tack. 20 That seems to be the advice. And while Despite rulings I've We are guaranteeing ourselves, right, delay and delay 21 and delay if we have a single attorney representing 22 Mr. al Nashiri in a complex trial. 23 guaranteeing ourselves is, if you all are successful, very few And what we're also UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12283 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 appellate courts are going to be happy with the process. 2 Maybe they'll apply a Strickland standard ultimately and go, 3 well, too bad, Lieutenant Piette. 4 many cases on the other side that will stand for the 5 proposition that what they're going to do is make you try it 6 again, and we're going to go through what we just watched 7 again. 8 9 Bad call. But there are as And then we have, right, the strategic: public perception of a justice system? What is the Which is important in 10 any justice system. 11 trial, what is that perception? 12 something that is going to undermine every other commission 13 proceeding down here? 14 this proceeding going to infect every other commission 15 proceeding down here? 16 And if I drive Lieutenant Piette into MATC [COL WELLS]: And is that perception And is what's going on right now in Sir, I would suggest that we are still 17 on the path. 18 opportunities for the counsel to turn away from adverse 19 consequences is narrowing. 20 are forced to make adverse rulings as to their conduct, make 21 specific findings that could support misconduct ---- 22 23 We haven't arrived at the end yet. MJ [Col SPATH]: The There will come a time when you I feel like I've done that. If I were to just walk away right now, I feel like you all have a record UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12284 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 replete with me stating that they have abandoned their client 2 and they have refused orders, now refused a subpoena, refused 3 to resource, undetailed -- Mr. Koffsky didn't know the timing 4 of that, right? -- undetailed detailed defense counsel as soon 5 as I said they should make an appearance or would make an 6 appearance. 7 MATC [COL WELLS]: Sir, I would suggest this: 8 sure when he actually undetailed them. 9 pointed question to Colonel Aaron was asked. 10 MJ [Col SPATH]: It was asked. I'm not I'm not sure the He was very -- he was very 11 up front when he talked to me last time. 12 you undetail them after I gave you -- or that order came out?" 13 And he said, "Yes." 14 MATC [COL WELLS]: 15 MJ [Col SPATH]: 16 MATC [COL WELLS]: I asked him, "Did I missed that point, but you ---He was very clear. Sir, I would suggest that the 17 commission has important power still to implement, 18 fact-finding to do. 19 Mr. Koffsky, exhausted with Colonel Aaron, perhaps exhausted 20 with the two employees. 21 to writ of attachment. 22 cautiously consider those. 23 appropriate in this circumstance. It seems that it has been exhausted with There are other options that relate You said that you were going to I'm not suggesting that that's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12285 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: That's right. And I -- I thought I was 2 very clear, right? 3 about "I'm going to think about it overnight." Apparently there is a lot of confusion 4 MATC [COL WELLS]: 5 MJ [Col SPATH]: Correct, sir. And now that I've had a chance to listen 6 to audio, I actually know what I said, which is, of course, 7 what I think you all heard, "if I issue the subpoenas," but 8 can't listen to audio because we don't put the audio out 9 there. 10 But, most importantly, I'm going to think about it 11 overnight. 12 have every belief that they are enforceable. 13 no doubt you all can get the marshals, we can get the 14 civilians, we can make them travel all of 10 miles, right, in 15 this oppressive world to the Mark Center, testify, refuse to 16 testify, do whatever it is they're going to do. 17 that. 18 does -- because of the adverse, right, responses to people who 19 have to be apprehended because they avoid showing up for 20 court. 21 the representation of this client. 22 23 And I am pausing on issuing those writs, because I I think there's We could do That guarantees a conflict with their client -- it It has adverse consequences to them. It relates to So if I'm them, of course, what do you do? around and go, well, there's good cause. I mean, there's good UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12286 You turn UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 cause. 2 relationship with our client. 3 issuing those writs. 4 them? 5 attorney-client relationship with a person nobody's bothered 6 to get any input from, except for me ---- If nothing else, this has become a different kind of Yes. Because can I blow it up and get rid of But is that the right answer when they have an 7 MATC [COL WELLS]: 8 MJ [Col SPATH]: 9 Yes, sir. ---- that has been presented to me about what does he want in all this. 10 And that's why I have paused on Does he want Mr. Kammen back? And this -- this belief that he doesn't know what the 11 issue is -- he was in here for Ms. Yaroshefsky's testimony. 12 He's been in here for multiple discussions, when he chooses to 13 come, about what the underlying issue is. 14 do with intrusions into attorney-client discussions. 15 that. 16 and we all know that. 17 18 19 He knows it has to So this belief that he hasn't been informed is wrong, MATC [COL WELLS]: He's in the hands of his attorneys, sir. MJ [Col SPATH]: And where is his input? Does he want 20 Ms. Eliades released? 21 heard his answers, I can't make them come here. 22 self-evident. 23 He knows MATC [COL WELLS]: Does he want Ms. Spears released? You Well, that's I think important findings would be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12287 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 this issue about we cannot advise our client; therefore, there 2 is a conflict that is created. 3 think Ms. Yaroshefsky's opinion ---- 4 MJ [Col SPATH]: 5 MATC [COL WELLS]: 6 MJ [Col SPATH]: 7 illusory. 8 intrusions. 9 know how many times. I've ruled on it. Yes, sir. What I ---- I've ruled on it. It's -- it's more than I've said that in the findings of fact I don't MATC [COL WELLS]: 11 MJ [Col SPATH]: Sir, I understand, and I'm with you. So when you keep saying fact-finding, 12 I've ruled on it. 13 I'm not fact-finding about it. I have ruled on it over and over and over. I'm encouraging the government to declassify it, 15 begging you to. 16 get an unclassified statement that I could at least let the 17 public know a little bit about what we're talking about. 18 19 20 I I have said there were no attorney-client 10 14 That to me seems illusory. I've declassified what -- my CISO's work to MATC [COL WELLS]: And that was a good step, sir, yesterday. MJ [Col SPATH]: Thanks. But what facts -- I don't need 21 to fact-find on whether or not good cause is shown. I was 22 giving the two civilians an opportunity to explain. Am I 23 missing something other than the alleged intrusions? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12288 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: 2 MJ [Col SPATH]: Absolutely. Is there something else? Because I don't 3 know. 4 other than what was contained in a short memo that said I have 5 the authority. Because General Baker wouldn't tell me anything else 6 MATC [COL WELLS]: 7 MJ [Col SPATH]: Yes, sir. So I was hoping they were going to come 8 to me, say you only know this much, actually here's why we 9 have good cause, at which case I could have figured out, okay, 10 that makes sense to me, and then release them or not, right? 11 Go read your bar rules, 1.16(d). 12 good cause, we're too far along in the process and we can't 13 leave Lieutenant -- or Lieutenant Piette, right, responsible, 14 for Mr. al Nashiri's life. 15 MATC [COL WELLS]: 16 MJ [Col SPATH]: 17 MATC [COL WELLS]: Maybe I say despite your Yes, sir. So here we are today. We are. Still have a session in March. And the 18 prosecution believes that further delay and abatement is not 19 appropriate; we should continue to March. 20 MJ [Col SPATH]: How about -- well, we'll talk about it at 21 the end of this. 22 see if we can get wrapped up today. 23 about at the end. Let's get these last two witnesses. I have some stuff to talk We'll figure out where we're going. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12289 Let's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: 2 MJ [Col SPATH]: 3 DDC [LT PIETTE]: 4 MJ [Col SPATH]: 5 Let's do this. Thank you, sir. Lieutenant Piette, any comments? Nothing right now, Your Honor. Okay. Hasn't been quite an hour, but I'm going 6 to refill my coffee. 7 out here so they're ready to go. 8 We're in recess. 9 [The R.M.C. 803 session recessed at 1348, 15 February 2018.] We'll take 10 minutes, get the witness And we will move on in 10. 10 [The R.M.C. 803 session was called to order at 1359, 11 15 February 2018.] 12 MJ [Col SPATH]: Commissions are called to order. Same 13 parties are present who have been present. 14 Martins is not here, but he hasn't been all day, so that's 15 fine. 16 TC [MR. MILLER]: 17 MJ [Col SPATH]: 18 TC [MR. MILLER]: 19 Thank you, Your Honor. All right. Call your next witness. We're going to recall, very shortly -- a short bit of testimony, Agent Kneisler. 20 MJ [Col SPATH]: 21 TC [MR. MILLER]: 22 MJ [Col SPATH]: 23 I know General Okay. Permission to use the ELMO, Your Honor? Yes. Agent Kneisler, just take a seat. I know you testified this week, I think yesterday. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12290 Remember UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you are still under oath. 2 WIT: 3 MJ [Col SPATH]: Yes, sir. Sure. 4 TRACY KNEISLER, civilian, was recalled as a witness for the 5 prosecution, was reminded of her previous oath, and testified 6 as follows: 7 8 9 DIRECT EXAMINATION CONTINUED Questions by the Trial Counsel [MR. MILLER]: Q. I promise this will be brief. Two issues. Yesterday 10 I believe we showed you Prosecution Exhibit 486 for 11 identification, and then you identified this picture. 12 during the picture I asked you the question whether or not all 13 the items were paper items; is that correct? I think 14 A. Yes, sir. 15 Q. And your response may have been "yes" in response to 16 the question. 17 have -- do you want to make a clarification? 18 A. But I think that answer was somewhat -- you Yes, sir. The items in the -- in the picture are all 19 paper, except for the one on the far right corner; looks like 20 it has some pattern. 21 after I had said "yes," that it was -- it's actually some form 22 of cloth, which is why I referred to it on the bag as a 23 "swatch." I realized once the item was opened, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12291 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Thank you. We also provided you with an item that 2 you had seized from Prosecution -- excuse me, from the second 3 site, YM2-491, and you identified it as an item that you had 4 seized. 5 6 TC [MR. MILLER]: the witness? Do we have that item available to show If you could provide it to her, please. 7 Q. You have before you 491; is that correct? 8 A. Yes, sir. 9 Q. Do you recognize that? 10 A. Yes, sir. 11 Q. Is that an item that you recovered? 12 A. Yes, sir. 13 Q. And how do you know that you recovered it? 14 A. My handwriting is on the evidence bag. 15 Q. All right. 16 A. I wrote that it's "clothespins from Room A, hanging 17 on clothesline stretched east to west." 18 Q. 19 photograph. 20 A. Yes, sir. Q. I don't know if you can make out the K number. 21 22 23 Placing on the ELMO Prosecution Exhibit 491A, a Do you recognize that photograph? Those are the items inside this evidence bag. you make that number? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12292 Can UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes, sir, K192. 2 Q. If you would, please, refer to the bag itself. 3 First off, does it have a K number? 4 A. Yes, sir. 5 Q. And if you could, please, indicate whether or not It's K192. 6 it's your writing that is contained on the evidence bag 7 itself? 8 A. Yes, sir. 9 Q. Can you indicate your description of the item and 10 11 12 Most of the writing is mine. where you found it? A. Yes, sir. "Clothespins, Room A, hanging on clothesline, stretched east to west." 13 Q. And does it show a date of recovery? 14 A. 10/18/00. 15 Q. Does that bag have a Y2 number on it and a 1B 16 number -- YM2 number and a 1B number? 17 A. It's YM2-126, 1B159. 18 Q. Is there an FD-192, a chain of custody form, attached 19 to that exhibit? 20 A. Yes, sir, there is. 21 Q. And does that -- could you read those numbers, 22 23 please? A. Yes, sir. YM2-126 and 1B159. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12293 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. So those numbers match -- the numbers on the green 2 sheet, the chain of custody form, match those on Exhibit 491, 3 correct? 4 A. Yes, sir, they do. 5 Q. Placing on the ELMO Prosecution Exhibit 491C for 6 7 8 9 10 Identification. A. Do you recognize that? Yes, sir. That's a copy of the chain of custody associated with this item, 491. Q. And we -- excuse me. You just -- last night there was a review of the evidence, correct? 11 A. Yes, sir. 12 Q. I believe that the initial chain of custody form that 13 was handed to you yesterday was the one for 492; is that 14 correct? 15 A. Yes, sir. 16 Q. All right. 17 A. The numbers match on this one, sir, yes. 18 Q. And is this an exact -- what's on the ELMO, is that 19 So this is the one for 491? an exact duplicate of the chain of custody form for 491? 20 A. Yes, sir. 21 Q. Lastly, I show you Prosecution Exhibit 491B. 22 23 Do you recognize that, Agent? A. Yes, sir. This is the evidence item inside the bag UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12294 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 for 491. 2 Q. A fair and accurate depiction of it? 3 A. Yes, sir, it is. 4 TC [MR. MILLER]: Your Honor, the prosecution -- excuse 5 me. 6 Prosecution Exhibits 491A, B, and C. The prosecution would move for the admission of 7 MJ [Col SPATH]: 8 TC [MR. MILLER]: 9 MJ [Col SPATH]: 10 DDC [LT PIETTE]: 11 MJ [Col SPATH]: 12 13 Noted. Thank you. No further questions of this witness. Okay. Lieutenant Piette, any questions? Defense takes no position. I understand. Agent Kneisler, remember the order we've already talked about a number of times? 14 WIT: 15 MJ [Col SPATH]: Yes, sir. Okay. Thank you again for your 16 testimony. 17 [The witness was warned, excused, and withdrew from the 18 courtroom.] 19 20 21 22 TC [MR. MILLER]: Government calls Special Agent Dan Gaston. MJ [Col SPATH]: Mr. Miller will swear you in. [END OF PAGE] 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12295 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DANIEL A. GASTON, civilian, was called as a witness for the 2 prosecution, was sworn, and testified as follows: 3 4 DIRECT EXAMINATION Questions by the Trial Counsel [MR. MILLER]: 5 Q. 6 the record. 7 A. Daniel A. Gaston. 8 Q. And are you -- what is your present employment? 9 A. Retired FBI. 10 Q. All right. 11 background. 12 A. 13 Have a seat, please. Will you state your name for I want to go a little bit into your You attended university? Jackson State University, graduated there in mid '80s. 14 Q. All right. 15 A. Forensic science, criminal justice. 16 Q. Did you have any prior police experience before 17 And your degree? joining the FBI? 18 A. I was a police officer for Jacksonville State. 19 Q. At the university? 20 A. Yes. 21 Q. Did you have full authority as a police officer? 22 A. Yes, I did. 23 We went through the Northeast Alabama Police Academy, and I had full, you know, authority as a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12296 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 police officer. Q. And if -- you indicated that you did go to the police 3 academy, the State Police Academy. 4 evidence -- training in the collection of evidence and the 5 processing of scenes? Did you receive any 6 A. Yes. 7 Q. How long were you a police officer at Jackson 8 State ---- 9 A. About three years. 10 Q. ---- Jacksonville State? 11 A. About three years. 12 Q. And at the end of that, what did you do? 13 A. Got a job with Office of Personnel Management doing 14 Excuse me. background investigations. 15 Q. During what time frame did you do that? 16 A. From about '86-87 until 1990. 17 Q. And in 1990 what did you do? 18 A. Joined the FBI. 19 Q. Did you attend the Quantico -- the Basic Agent School 20 at Quantico? 21 A. Yes, I did. 22 Q. And what was your first office? 23 A. First office was San Antonio, Texas. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12297 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. What did you do at San Antonio? 2 A. Violent crimes, mostly dealing -- I was assigned to 3 the military bases -- there's, I think, five bases -- and 4 worked with CID and OSI. 5 6 Q. I take it, then, that you had occasion to search various crime scenes? 7 A. Yes. 8 Q. Process those scenes? 9 A. Yes. 10 Q. Did you have any collateral duties while at 11 San Antonio? 12 A. I was on the SWAT team. 13 Q. How long did you remain in San Antonio? 14 A. Six years. 15 Q. And at the end of those six years? 16 A. Joined -- got on the HRT, the Hostage Rescue Team, at 17 Quantico. 18 Q. And what years were you there? 19 A. From 1996 to 2002. 20 Q. During that time frame, did you become a special 21 agent bomb tech? 22 A. Yes. 23 Q. And were you assigned to any specialized -- any UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12298 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 special duties while at HRT? 2 A. I was a sniper and a bomb tech and EMT. 3 Q. How long did you remain at HRT? 4 A. Six years. 5 Q. At the end of the six years, where did you go? 6 A. Mobile, Alabama. 7 Q. And what did you do at the -- what were your duties 8 9 10 and responsibilities in Mobile? A. I was the bomb tech, domestic terrorism, WMD program. And I think there was something else, but I can't remember. 11 Q. All right. 12 A. Oh, and SWAT team leader. 13 Q. All right. 14 A. Eight years. 15 Q. At the end of that, where did you go? 16 A. Anchorage, Alaska. 17 Q. And what did you do in Anchorage? 18 A. Violent Crime Squad. 19 Q. For how long? 20 A. For four years. 21 Q. And did you retire out of Anchorage? 22 A. I retired out of Anchorage, yes. 23 Q. All right. And at the end ---- How long did you remain in Mobile? And have you had any employment since UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12299 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 retiring from Anchorage from the FBI? A. I worked part-time for security up on the North Slope, Prudhoe Bay, Alaska. Q. 2000. I want to direct your attention back to October of You were with HRT; is that correct? 6 A. That's correct. 7 Q. Did you have occasion to go to Yemen? 8 A. Yes, I did. 9 Q. And your purpose in going there, sir? 10 A. Provide security for the agents that were coming to 11 conduct searches for the -- for the incident that occurred 12 there at the COLE. 13 Q. Was part of that duties and responsibilities to 14 provide them with security when they traveled away from the 15 hotel or the place where they were staying? 16 A. Yes. 17 Q. Specifically did you have occasion to travel with 18 them to a beach site where a search was conducted? 19 A. Yes, I did. 20 Q. And initially what was your purpose in going to that 21 22 23 site? A. Initially it was to provide security for the Evidence Response Team. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12300 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. And once you arrived there, did you assist them in any way? 3 A. Yes, I did. 4 Q. And what was it that you did? 5 A. We conducted a line search along the beach there, 6 looking for evidence that could have washed up on the shore or 7 evidence of, you know, any vessel being launched from the 8 shore there. 9 Q. So you participated in the line search? 10 A. Yes, I did. 11 TC [MR. MILLER]: If we could, please, Prosecution 12 Exhibit 340 -- excuse me, Prosecution 335, please -- 435. 13 sorry. 14 Q. I've placed on the screen -- can you see that? 15 A. I see the screen, yes. 16 Q. There is Prosecution 435. 17 18 19 20 The photograph. Okay. Do you recognize what's contained in that photograph, sir? A. Yes, sir. It looks -- looks like we were doing a, you know, line search there on the beach. Q. Do you recall -- okay. It just popped up on the 21 screen behind you. 22 whom you conducted this -- the search? 23 A. Does that appear to be the persons with Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12301 I'm UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. And the area where the search was conducted? 2 A. Yes. 3 Q. Prosecution Exhibit 436, please. 4 5 Do you recognize that photograph? A. It's a photograph -- again, it's there on the beach, 6 and it appears that someone has found -- or is collecting 7 evidence. 8 9 Q. All right. Now, did you have occasion to find any evidence -- you thought there was something of evidentiary 10 value? 11 A. Yes. 12 Q. What was it that you found, sir? 13 A. It was a -- looked like fibrous material, red and 14 black in color, and it looked like something you would find, 15 you know, like indoor/outdoor carpet from a boat, which I fish 16 a lot, and I know what -- you know, and it looked similar to 17 that. 18 Q. And did they mark that evidence? 19 A. Yes. 20 Q. All right. 21 Prosecution Exhibit 437, please. Do you recognize what's contained in that particular photograph? 22 A. 23 beach. Yes. That's the fibrous material that I found on the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12302 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 TC [MR. MILLER]: If you could provide the witness, please, with Prosecution Exhibit 336. 3 4 All right. If I could, Your Honor, have permission to use the ELMO at this point? 5 MJ [Col SPATH]: 6 Q. You may. I've placed before you what has been marked as 7 Prosecution Exhibit 336. 8 please. If you could take a look at that, 9 A. [Did as directed.] 10 Q. Sir, do you recognize that item, 336? 11 A. Yes, I do. 12 Q. And if you could, please, describe for the court what 13 is it that you're looking at. 14 A. Red and black fibrous material in a container. 15 Q. All right. 16 17 And did you put that in that -- did you put the fibrous material in the container? A. I either collected it or an evidence custodian -- or 18 evidence technician, you know, recovered it in the container. 19 But my name is on the container. 20 Q. All right. I'm placing on the ELMO Prosecution 21 Exhibit 336A for Identification. 22 container and the piece of, looks like, fiber in it? 23 A. Do you recognize that Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12303 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 6 Q. All right. And is that a picture of the Exhibit 337 -- excuse me, 336? A. Is that -- yes. Is it the same as this? Is that 330 -- where is it marked on here? Q. If you look on the bag, the packaging in which the exhibit came. 7 A. Yes, 336, correct. 8 Q. And there is a K number on a ruler underneath the 9 exhibit. Do you see that? 10 A. Yes. 11 Q. Could you read that into the record, please. 12 A. K387 001027005 KV. 13 Q. All right. Looking at -- looking at the exhibit 14 itself or the packaging in which it was contained, is there a 15 K number? 16 A. Yes. 17 Q. And what is the K number contained on the exhibit, 18 its packaging? 19 A. K387. 20 Q. All right. 21 So does that K number match the K number on the photograph, Prosecution Exhibit 336A? 22 A. Yes, it does. 23 Q. Looking at the exhibit itself, does the exhibit have UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12304 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 a YM number on it? 2 A. Yes. 3 Q. And what is the YM number? 4 A. YM5-102. 5 Q. Does it have a 1B number on it also, sir? 6 A. On the container itself? 7 Q. Or on the packaging in which it was ---- 8 A. Hold on. 9 Q. All right. 10 Let me find it. Yes, 1B487. Is there a green sheet or a chain of custody, Form 192, attached to the exhibit? 11 A. Yes, it is. 12 Q. Would you look at that, please. 13 Does it have a YM number on it? 14 A. Yes, YM5-102. 15 Q. And does it have a 1B number, sir? 16 A. 1B? 17 Q. Do those two numbers match the numbers contained on 18 1B487. the exhibit itself, Prosecution Exhibit 336? 19 A. Yes. 20 Q. I'm placing on the ELMO Prosecution Exhibit 336D, 21 David. 22 form? 23 A. Do you recognize this particular chain of custody Yes, I do. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12305 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. 2 described? 3 A. Yes, it is. 4 Q. Is your signature contained on this ---- 5 A. Yes. 6 Q. ---- chain of custody form? 7 A. Yes, it is. 8 Q. And it indicates that you collected this item, 9 Is it an exact duplicate of the one that you've just The top line there, or top signature. correct? 10 A. Yes. 11 Q. And does it give the date of the collection? 12 A. 10/21/2000. 13 Q. And did you give the evidence then to the person 14 whose name or signature is contained underneath yours? 15 A. Yes. 16 Q. I'm going to place on the ELMO Prosecution 17 Exhibit 336C for Identification -- excuse me -- 336B for 18 Identification, and ask you to look at that bag. 19 recognize that bag? Do you 20 A. Yes, evidence collection bag. 21 Q. Is it the one in front of you for Prosecution 22 23 Exhibit 336? A. Yes, it is. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12306 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. Fair and accurate -- is it a fair and accurate depiction of it? 3 A. 4 TC [MR. MILLER]: Yes, it is. Your Honor, the prosecution would move 5 for the admission of Prosecution Exhibit 336A, 336B, and 336D, 6 as in David. 7 MJ [Col SPATH]: 8 TC [MR. MILLER]: 9 Noted. Thank you. We have no further questions of this witness. 10 MJ [Col SPATH]: 11 DDC [LT PIETTE]: 12 MJ [Col SPATH]: Lieutenant Piette, any questions? Defense takes no position. Mr. Gaston, I just want -- oh, let me let 13 you hand that back. 14 discuss your testimony with anyone until this issue is 15 resolved. 16 before this issue is resolved, so keep that in mind. 17 I'll give you a standard order: Don't As you can probably guess, it's going to be a while And then the other thing I've told all the witnesses 18 who come down here: 19 person. 20 who travel down here appreciate it. Thank you very much for coming down in I know it takes a lot of time, but I know the people 21 WIT: 22 MJ [Col SPATH]: 23 WIT: Yes, sir. Thank you. Thank you. You are excused. Thank you. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12307 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The witness was warned, excused, and withdrew from the 2 courtroom.] 3 4 TC [MR. MILLER]: One last witness, Your Honor. It will be brief. 5 MJ [Col SPATH]: 6 TC [MR. MILLER]: Call your witness. The government calls Ignacio Mendizabal. 7 IGNACIO MENDIZABAL, civilian, was called as a witness for the 8 prosecution, was sworn, and testified as follows: 9 10 11 12 DIRECT EXAMINATION Questions by the Trial Counsel [MR. MILLER]: Q. Please be seated. And if you would please state your name for the record. 13 A. I am Ignacio Mendizabal. 14 Q. And you are the same Ignacio Mendizabal who testified 15 previously in this matter; is that correct? 16 A. That is correct. 17 Q. By way of reintroduction, briefly, you accompanied 18 the lab personnel to the site to process some of the evidence 19 for the United States COLE -- USS COLE bombing; is that 20 correct? 21 A. That is correct. 22 Q. And do you recall when it was that you left the area, 23 when you left Yemen? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12308 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 A. Yes. I left -- went to Yemen on October 13 until October 25th. Q. And on October 25th, were you provided with some evidence to transport back to the laboratory? 5 A. That is correct. 6 Q. And how did you leave Yemen? 7 Did you -- what sort of transportation was provided for you? 8 A. It was via a military aircraft. 9 Q. Did you go directly from Yemen to the United States? 10 A. We stopped in Sicily, Italy, the following day 11 because the aircraft had some mechanical issues. 12 overnight in Sicily, and then the next morning, on the 27th, 13 we departed Sicily to Andrews Air Force Base in Maryland, and 14 we arrived on 10/27. 15 Q. And so we The evidence that was transported -- you transported 16 from Yemen to the United States, was it secured while you were 17 in Sicily? 18 A. Yes, it was. 19 Q. I'm going to show you a series of chain of custody 20 forms and have you verify your signature on them. 21 ask you just a couple more questions. 22 23 But let me When you received the evidence in Yemen, was it in a sealed, secure state? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12309 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. Yes, it was. 2 Q. And did you deliver it in a sealed condition? 3 A. Yes, it was. 4 Q. Did you or any other persons, to your knowledge, 5 Yes. tamper or otherwise open that evidence? 6 A. No. 7 Q. When you landed at Andrews Air Force Base on the 8 27th, what did you do with the evidence? 9 A. Okay. My supervisor, Mark Whitworth, and other 10 explosive unit employees, were waiting for us. 11 they brought a truck from the laboratory. 12 the evidence from the military aircraft to our truck, into the 13 lab. 14 Q. They had a -- So we transported As you are a member -- as you testified previously -- 15 a member of the lab team, was there any need for any other 16 persons to sign that evidence into the laboratory after you 17 had signed for it? 18 A. That is not necessary, no. 19 Q. I'm showing you Prosecution Exhibit 300C. 20 Do you recognize your signature on that, sir? 21 A. Yeah. 22 Q. And does that, by signing that, indicate that you had 23 The third line, that is my signature. received the evidence from the person above you whose UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12310 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 signature is Dayna Sepeck's? 2 A. That is correct, yes. 3 Q. Prosecution Exhibit 301E, is that your signature on 4 the third line? 5 A. The third line, that is my signature, yes. 6 Q. Prosecution Exhibit 302? 7 A. The third line, that is my signature, yes. 8 Q. Prosecution Exhibit 303? 9 A. The third line, it is my signature, yes. 10 Q. Prosecution Exhibit 304? 11 A. The third line is my signature, yes. 12 Q. Prosecution Exhibit 305? 13 A. The third line is my signature, yes. 14 Q. And, for the record, all of these are going to have 15 the date of 10/25 at 9:30 p.m., correct? 16 A. Yes, sir. 17 Q. Prosecution Exhibit 306C? 18 A. The third line, it is my signature, yes. 19 Q. Prosecution Exhibit 307C? 20 A. The third line is my signature, yes. 21 Q. Prosecution Exhibit 308C? 22 A. The third line is my signature, yes. 23 Q. Prosecution Exhibit 309C? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12311 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. The third line is my signature, yes. 2 Q. Prosecution Exhibit 310C? 3 A. The third line is my signature, yes. 4 Q. Prosecution Exhibit 311C? 5 A. The third line is my signature, yes. 6 Q. Prosecution Exhibit 312C? 7 A. The third line is my signature, yes. 8 Q. Prosecution Exhibit 313C? 9 A. The third line is my signature, yes. 10 Q. Prosecution Exhibit 314C? 11 A. The third line is my signature, yes. 12 Q. Prosecution 315C? 13 A. The third line is my signature, yes. 14 Q. Prosecution Exhibit 316C? 15 A. The third line is my signature, yes. 16 Q. Prosecution Exhibit 317C? 17 A. The third line is my signature, yes. 18 Q. Prosecution Exhibit 318C? 19 A. The third line is my signature, yes. 20 Q. Prosecution Exhibit 319C, sir? 21 A. The third line is my signature, yes. 22 Q. Prosecution Exhibit 320C, sir? 23 A. The third line is my signature, yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12312 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Prosecution Exhibit 321C? 2 A. The third line is my signature, yes. 3 Q. Prosecution Exhibit 322C? 4 A. The third line is my signature, yes. 5 Q. Prosecution Exhibit 323C? 6 A. The third line is my signature, yes. 7 Q. Prosecution Exhibit 324C? 8 A. The third line is my signature, yes. 9 Q. Prosecution Exhibit 325C? 10 A. The third line is my signature, yes. 11 Q. Prosecution Exhibit 326C? 12 A. The third line is my signature, yes. 13 Q. Prosecution Exhibit 327C? 14 A. The third line is my signature, yes. 15 Q. Prosecution Exhibit 328C? 16 A. The third line is my signature, yes. 17 Q. Prosecution Exhibit 329C? 18 A. The third line is my signature, yes. 19 Q. Prosecution Exhibit 330C? 20 A. The third line is my signature, yes. 21 Q. Prosecution Exhibit 331C? 22 A. The third line is my signature, yes. 23 Q. Prosecution Exhibit 332C for Identification? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12313 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 A. The third line is my signature, yes. 2 Q. And last, Prosecution Exhibit 336D? 3 A. The third line is my signature. 4 Q. And these are all for the same time, 10/25 at 9:30, 5 correct? 6 A. That is correct. 7 Q. And this is the evidence that you transported back to 8 9 the United States, correct? A. That is correct. 10 TC [MR. MILLER]: 11 MJ [Col SPATH]: 12 DDC [LT PIETTE]: 13 MJ [Col SPATH]: 14 Nothing further, Your Honor. Thank you. Lieutenant Piette, any questions? Defense takes no position. Thanks. Agent Mendizabal, let me give you -- I think I did 15 last time. 16 discuss your testimony until this issue is resolved, okay? 17 you understand that order? Do you remember the order I gave you? 18 WIT: 19 MJ [Col SPATH]: Don't Do Yes, sir. All right. And as I've said to the other 20 agents, I'm not saying don't talk to people who are here on 21 island. 22 probably haven't seen in awhile, no worries about that. 23 don't talk about your testimony. I know you're down here with other agents you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12314 Just UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 And then, as I've said -- probably said it last 2 time -- thank you for coming in person. 3 have an interest in the proceedings truly appreciate it, given 4 the time and energy it takes. 5 WIT: 6 MJ [Col SPATH]: I know the people who Thanks. Thank you, Your Honor. You're excused. 7 [The witness was warned, excused, and withdrew from the 8 courtroom.] 9 TC [MR. MILLER]: No further evidence other -- other than 10 to move for the admission, Your Honor, I don't think I have, 11 but Prosecution Exhibits 696B, 697B, 712B, and 1030A, which 12 are the blowups of the various charts that we used. 13 than that, we have nothing further for this session. 14 15 MJ [Col SPATH]: Thank you. Oh, where to go, right? Other Noted. I know we have a session in 16 March, but I -- I think I made clear my feelings of no 17 position in, frankly, opposition to the orders of the 18 commission. 19 But nothing is happening. Colonel Wells, we can talk -- I've got quite a bit to 20 say, and we'll figure out the road ahead; I probably won't 21 know it today. 22 fact I have yet to make, because they -- they do not have to 23 be in writing. If you think there are specific findings of I have made multiple findings of fact on the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12315 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 record throughout this process since October, because it is 2 important to get it out to the public. 3 writing, it takes days to get out; if I do it here, everybody 4 hears it. 5 And if I do it in And that's why my practice is, when I can, as you 6 were there for the UI motion, is to get these findings on the 7 record. 8 General Baker testified, a series of findings before the 9 contempt proceeding, a series of findings each time we've And I led off with a series of findings before 10 started; multiple comments about what I think, frankly, is 11 unprofessional behavior. 12 MATC [COL WELLS]: 13 MJ [Col SPATH]: 14 MATC [COL WELLS]: Where do we go? Here we are. Where do we go? Sir, I would suggest this: You have 15 asked that there are certain findings of fact that would be 16 helpful to declassify. 17 facts -- not documents with redactions, but specific facts are 18 identified in a laundry list, then they can cross-check and 19 evaluate national security interest in that. 20 The OCA's work, when those specific But I would like an opportunity, from the 21 prosecution, to provide you suggested findings of fact on 22 those classified matters. 23 MJ [Col SPATH]: Okay. So that has to do with, right, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12316 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 declassifying this -- this alleged intrusion issue. 2 MATC [COL WELLS]: 3 MJ [Col SPATH]: 4 MATC [COL WELLS]: 5 Correct, sir. Right. And you did a great first quarter, first half start yesterday. 6 MJ [Col SPATH]: 7 MATC [COL WELLS]: We'll see. We also need to turn and adjust and 8 consider and apply Mr. Nashiri's meeting space and what the 9 defense perceives -- by their pleadings, they keep saying it's 10 our perception. 11 already that we ---- 12 You have made competent, credible findings MJ [Col SPATH]: You know what I care? 13 they're competent or credible. 14 Supported by the evidence ---- 15 MATC [COL WELLS]: 16 MJ [Col SPATH]: I don't know if Here's what I want them to be: Correct, sir. ---- because there's an abuse of 17 discretion standard applied to my findings of fact. 18 they're reasonably supported by the evidence, no appellate 19 court is going to disturb them, and we're done. 20 courts work. 21 MATC [COL WELLS]: 22 MJ [Col SPATH]: 23 If That's how Yes, sir. I recognize there is a community that ignores that, but ---UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12317 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: 2 MJ [Col SPATH]: 3 MATC [COL WELLS]: So it has to be on the record ---So it was, when I read them. ---- Mr. CISO, on the record before the 4 commission, and that is what we are going to focus, on the 5 pleadings, the sworn statements that you've been provided, and 6 the averments that have been made in court under oath, both in 7 closed session and in open session. 8 legally. That's very important 9 Number two, as it relates to the attorneys and the 10 systemic problems that they are exploiting, I would observe 11 this: 12 to the underlying problem that we have here, and it relates to 13 their conduct. 14 this commission. That is a separate, discrete issue, not really linked And that has not played out completely with 15 And I would observe this, that our structure of our 16 statute in the military commission requiring learned counsel 17 and military counsel is something that will be implemented 18 with the UCMJ. 19 pioneer on that regard. 20 And this, in that respect, is a foray and a I will observe that our authority in the MCA is 21 different from learned counsel applied in the federal courts, 22 18 U.S.C. 3005, because it gives the military judge the 23 authority to designate and appoint learned counsel. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12318 In our UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 system it seems that primarily it's the responsibility of the 2 chief defense counsel. 3 regulations, implemented by the Secretary, designated for the 4 convening authority. 5 then you read those words, and you read them circumspect as to 6 the authority. 7 And there is some support in our And if you're a strict constructionist, So they are still exploring exactly what does this 8 mean for the convening authority? 9 with the chief defense counsel in the MCDO organization? What is the relationship And 10 what is being exposed is that, apparently, since the chief 11 defense counsel, General Baker, took over, that this is a 12 loaded gun in the MCA that he has chosen to pick up at this 13 time, right on the doorstep of having to cross-examine Darbi, 14 when real evidence could be submitted in this case against the 15 accused, and it's an attempt to blow up the system. 16 So if this is how it's going to be played out in the 17 UCMJ when that authority is implemented, I would submit that 18 you have great responsibility, exercised with great care and 19 deliberate, as you have already, patiently walking each step 20 to make sure that these counsel turn away from their conduct, 21 which could have adverse consequences for their professional 22 bar, their -- and personal liberty; other consequences also 23 for the system. We would like a considered opportunity to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12319 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 bring all the forces and authorities and powers of the 2 government related to this to this commission. 3 invited us to make pleadings; we will do that. 4 And you've The other point that I would like to leave with is if 5 the basis for the withdrawal is valid for those civilian 6 attorneys, it seems like it would also apply to their detailed 7 military counsel; that there is no place that they perceive 8 that they can meet at Guantanamo Bay to have confidential 9 communications. 10 11 12 13 MJ [Col SPATH]: And that would apply to every other commission case. MATC [COL WELLS]: Yes, sir. So how we handle it here is very important. 14 What is revealing is that this probably is a 15 strategy. 16 on, if that's the way they want to try their case and defend 17 their client. 18 He's not here. 19 defense counsel. 20 It's an abstinence. And, frankly, we should drive The system is set up to say "practicable." He can still consult and advise the military So -- and I know you've already said that. So at some point, though, you are going to have to be 21 forced not to be magnanimous with these counsel and patient 22 with them, and you're going to have to make these findings of 23 fact that are adverse to them that relate to their UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12320 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 professional bar license. 2 MJ [Col SPATH]: 3 contempt, Colonel Wells. 4 He's the Chief Defense Counsel of the Military Commission 5 Defense Organization. 6 of DoD is he will keep doing his job in that organization. 7 The response of DoD is he goes to work every day, period. 8 What I heard from Mr. Koffsky is we are waiting for Judge 9 Lamberth. 10 I feel like I have. That's what he's doing. The response the contempt issue. MATC [COL WELLS]: 12 MJ [Col SPATH]: 13 MATC [COL WELLS]: 15 And do you know what he is doing? Judge Lamberth is just deciding on one small issue, 11 14 I held somebody in The contempt issue. He was confused. Well, I agree. I don't know who told him that or advised him of that. MJ [Col SPATH]: That's kind. Here's -- I mean, frankly, 16 right, forgetting the contempt issue, let's assume I have 17 defined my contempt authority incorrectly; I'm wrong. 18 been wrong before. 19 change the fact that the chief of -- the chief defense 20 counsel, the chief of the Military Commissions Defense 21 Organization has no problem defying a commission order. 22 Forget the contempt piece. 23 defied the order. I get overturned. Fine. I have That doesn't There is no argument that we have UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12321 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I read to Mr. Koffsky the chief defense counsel's 2 requirement to ensure that commission orders are followed. 3 And we all know what you do if you don't like a court order: 4 You go to another court; you find another judge above the 5 judge sitting here. 6 judge steps in and says I'm staying your proceeding, you all 7 know what I'm not going to do, right? 8 Why would you do that? 9 that. 10 As I have said so long, if a federal That would be suicide. But the defense organization will do And so what we are doing is we are going to sit and 11 wait for learned counsel. 12 you know what happens? 13 eve of trial. 14 six weeks into trial. 15 Because we don't have clear guidance, according to the defense 16 community, and ---- They do it again. 18 point, a possible reality. 19 here. MJ [Col SPATH]: 21 MATC [COL WELLS]: 23 They do it They do it on the eve of findings. MATC [COL WELLS]: 20 I would submit that that's, at this But there are other realities What is the other reality? The other reality is that they are held responsible for their misconduct ---MJ [Col SPATH]: Do They do it on the They do it four weeks into trial. 17 22 And do you know what happens? And -- right. So what actions are UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12322 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 underway to do that? MATC [COL WELLS]: Well, sir, number one, the lead in this, frankly, is Judge Spath in this commission. MJ [Col SPATH]: I've done it. I can't do more. One 5 would think if you hold a counsel in contempt, which has 6 happened, what, four or five times across military practice in 7 the last 40 years, and first time at the commissions, that 8 that would cause a bit -- a bit of a stir somewhere, where 9 people would look in and say, "What is going on?" 10 MATC [COL WELLS]: Sir, I would submit that some of those 11 adverse consequences have been submitted in the D.C. District 12 Court, and so I do think that Judge Lamberth's decision is 13 important. I won't comment further on that, but ---- 14 MJ [Col SPATH]: 15 MATC [COL WELLS]: I do, too. Of course. The other aspect of this, this 16 qualifying authority and who is responsible for supervising 17 lawyers in their professional conduct and responsibility was 18 not satisfactorily answered by Mr. Koffsky, and he left out 19 his professional responsibility over DoD civilians. 20 military members, for General Baker, it's the Navy JAG. 21 others in other service, it's the Service Judge Advocate 22 Generals. 23 there is a finding of fact from a competent tribunal or But for For There is a process there, and usually that works if UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12323 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 court-martial -- 2 MJ [Col SPATH]: 3 MATC [COL WELLS]: I've made those. Yes, sir. But in a nice, neat package, 4 read out as an indictment, supported with credible 5 information, is powerful. 6 7 8 9 10 MJ [Col SPATH]: MATC [COL WELLS]: I would ask the commission to be patient and continue on, because the alternate reality is learned counsel is detailed to this case. MJ [Col SPATH]: 12 MATC [COL WELLS]: 14 I mean, I've done it, and then I've done it, and then I've done it. 11 13 I thought so the last time. Agreed. They are available, but they're not showing up. MJ [Col SPATH]: Remember my overarching -- my overarching 15 direction, when you read the manual, is the fair 16 administration of justice. 17 say, but the fair administration piece, it largely relates to 18 the accused in any proceeding. 19 proceeding, you all don't go to confinement, you all don't get 20 sentenced to go to death row, or whatever the equivalent is in 21 a commission proceeding. 22 on the accused and the fair administration of justice. 23 drive on? Yes. And I know this is not popular to Because at the end of the That doesn't fall on you. It falls Can I But is that fair and is it efficient if I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12324 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 believe the significant weakness is ---- 2 MATC [COL WELLS]: 3 MJ [Col SPATH]: Learned counsel. ---- an appellate process that's going to 4 look in on us? 5 about those things, right? 6 MATC [COL WELLS]: Those are -- I mean, I just have to worry That's my charter. Sir, I'm really, as I sit here at the 7 podium, glad that you just pointed that out, because this 8 illustrates that among all of us litigants here, the judge is 9 supposed to be the neutral arbiter of this. And by you 10 pointing to that talisman is -- it gives us pause on whether 11 or not it is prudent to drive on. 12 change? 13 position. 14 What has to be done? MJ [Col SPATH]: And is there a systemic But I think we're still at this Or the ultimate person who owns this 15 process, right? 16 process. 17 Congress and the President, have set this up. 18 This is not a comment on the commissions Again, the United States Government, through I don't want to hear the ad hoc stuff. All that 19 stuff is such a waste of time. 20 I'd elect somebody else. 21 office. 22 like the law, there's something you should do to fix it. 23 my job. If you don't like the process, And I don't mean that in any one I mean across the organization, right? If you don't Not My job is a government has said this process exists. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12325 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Well, there's somebody in charge of that process. 2 they doing? 3 MATC [COL WELLS]: 4 MJ [Col SPATH]: 5 MATC [COL WELLS]: 6 MJ [Col SPATH]: What are Yes, sir. I don't know. Here we are. Yes. I mean, we have -- I've ordered -- 7 finding of fact -- and again, I'm open if you want to propose 8 findings of fact, additional ones. 9 intrusion, multiple times in writing. I have ruled there is no I've issued those 10 rulings over and over. 11 here. 12 not released. 13 shown up multiple times, clearly. 14 Mark Center; they disobeyed. 15 disobeyed. 16 change that. 17 wasn't going to change it, hence the contempt proceeding, 18 along with the conduct that went on while we were discussing 19 it. 20 I've ruled that counsel need to be Both the learned counsel's not released, both civilians And they were ordered to be here; they haven't I've ordered them to the I subpoenaed them; they We've talked to Colonel Aaron; he's not going to We talked to General Baker; he made clear he And then I talked to the next boss, Mr. Koffsky. He 21 said it nicely, and I appreciate that, right, but if you heard 22 his words, it was ultimately, well, General Baker doesn't 23 agree with your position. So with all due respect to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12326 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 commissions, and whatever he said, ultimately, I'm not going 2 to do anything. 3 said: 4 commission, I'm not going to do it. Which is the same thing that General Baker With all due respect to your authority as the 5 Think about what that does to a process if you have 6 an organization that simply ignores orders. 7 change there until there are real consequences to whatever 8 does it. 9 Martins would step in reasonably quickly to fix it. There is no If you all ignored orders, I would hope General Maybe he 10 wouldn't. 11 say, hey, I appreciate your order, sir; I'm not doing it. 12 don't know. Maybe I've misread that situation. 13 MATC [COL WELLS]: 14 MJ [Col SPATH]: 15 MATC [COL WELLS]: 16 MJ [Col SPATH]: 17 MATC [COL WELLS]: 18 MJ [Col SPATH]: 19 MATC [COL WELLS]: 20 MJ [Col SPATH]: 21 MATC [COL WELLS]: 22 MJ [Col SPATH]: 23 Maybe he would I Sir, good faith is required. Agreed. So ---All right. We're ready for March, sir. I understand. All right, sir. No. Anything further, sir? Thank you. Thank you, sir. Lieutenant Piette, do you want to say anything? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12327 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DDC [LT PIETTE]: Yes, Your Honor. First, I want to 2 preface it by saying, as I've said before, defense wants to go 3 to trial. 4 5 We want to go to trial. MJ [Col SPATH]: Okay. You can say that. The facts suggest otherwise. 6 DDC [LT PIETTE]: 7 MJ [Col SPATH]: Right. They do. The facts completely undercut 8 that, based on the history and the way this has developed over 9 the years. 10 That -- that is blatantly not supported by the evidence. 11 Maybe you want to go to trial. Frankly, I suggest 12 you say I'm ready to go tomorrow. 13 a young counsel. 14 see how that goes off, but -- so maybe you do want to go to 15 trial. 16 not. 17 I would find this whole thing to have been hanging over my 18 head for a long time. It's surprising. I would be interested to I don't know if your client wants to go to trial or I would think he would want some resolution in all this. 19 DDC [LT PIETTE]: 20 MJ [Col SPATH]: 21 That's what I used to do as So I will -- maybe you do. Right. Well, Your Honor ---- The organization has demonstrated, as I've made findings, they have no interest in going to trial. 22 DDC [LT PIETTE]: 23 MJ [Col SPATH]: I think that's ---I understand. You know how findings of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12328 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 fact work, which is the ---DDC [LT PIETTE]: Right. I mean, I think if we were 3 looking to delay, I would certainly be cross-examining 4 witnesses; that would cause an immense delay. 5 talking about 207, probably. 6 trial, but that trial needs to be fair. 7 MJ [Col SPATH]: 8 DDC [LT PIETTE]: 9 We'd still be But the fact is we want to go to Agreed. A fair trial will demonstrate that Mr. al Nashiri is not guilty of what the government says. And 10 not because of some technicalities, not because of some issues 11 with chain of custody, but because he is factually and 12 actually not guilty of what he's accused of. 13 So that's what I wanted to start out by saying, that 14 the defense, we want to go to trial. 15 had a terrible case, we'd be trying to avoid 16 cross-examinations. 17 you've seen, and everybody's seen kind of the way the evidence 18 is coming out now, which should demonstrate to any outsider or 19 anybody who's seen that the reasons why we want to go forward. 20 Maybe if we thought we You heard the direct testimony, and However, there's serious roadblocks. And you asked a 21 question -- and this was addressed by Colonel Wells, who I 22 find myself in a strange position of largely agreeing with on 23 a number of these things -- but you asked a question, why is UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12329 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 it for me to move this forward after Mr. Koffsky was talking. 2 And the defense's position and my position is that it's not. 3 It's your job, as you just stated, the fair and efficient 4 administration of justice. 5 I think your concern seems to be -- is 6 understandable, probably the government's, too, is with 7 efficiency. 8 deserve a ---- 9 10 Frankly, the victims and their family members MJ [Col SPATH]: Yeah, I would say efficiency is absolutely my concern. 11 DDC [LT PIETTE]: 12 MJ [Col SPATH]: 13 DDC [LT PIETTE]: 14 MJ [Col SPATH]: Right. Fairness has been my concern all along. Yep. We can go back and look at rulings. 15 you know why your client is getting an MRI? 16 you know who dismissed charges in this case, many of them? 17 did. 18 DDC [LT PIETTE]: 19 MJ [Col SPATH]: Do I ordered it. Do I Yes. It is not an effort -- to be clear, I 20 have ruled against both sides in here, not for any particular 21 purpose; because that's what I think the right answer is. 22 was wrong, apparently, in how I ruled on the dismissal of 23 charges, right? CMCR told me I'm wrong. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12330 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Do you know what I didn't do the next time we were in 2 session? 3 input, CMCR, but I really don't like these charges. 4 not. 5 Dismiss the charges again and go, thanks for your Of course But I want to be -- efficiency is important, but 6 efficiency implies efficiency in appeal, efficiency down the 7 road, efficiency here. 8 What's important as well is closure for your client and the 9 people watching this, because it is an ongoing sore spot for 10 everybody. 11 DDC [LT PIETTE]: 12 MJ [Col SPATH]: 13 14 There's a lot of aspects to it. Yes. And that is part of the fair administration piece, I think. DDC [LT PIETTE]: Right. And I think, you know, in order 15 to -- everybody deserves closure, deserves a reckoning. 16 deserve the truth. 17 MJ [Col SPATH]: 18 DDC [LT PIETTE]: We Agreed. And I think you understand this, as you 19 were just alluding to. 20 is a fair trial. 21 trial that is efficient, because it's not efficient if it gets 22 kicked back, is if there is qualified learned counsel on this 23 case. The only way we get there is if there In this case, the only way there's a fair UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12331 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: But that's the part that we -- the issue 2 I have with that is I have a law that says "to the extent 3 practicable." 4 interpretation of it, in normal practice, right, what do you 5 do with that? 6 will step in and do something with some kind of extraordinary 7 writ. 8 build in the appellate record, if there's a conviction. 9 hopefully you're wrong -- right, hopefully you're right and And even though you disagree with my You go to an appellate court and see if they Or you do it at trial; you live with my ruling, and you And 10 there's not a conviction and your client is acquitted and it's 11 a non-issue. 12 times, multiple places across the United States. 13 That's how this process plays out multiple I have told you how I read that statute. And that's 14 why one of the options, frankly, is to press forward, because 15 learned counsel are not practicable because they have 16 abandoned their client. 17 adverse, by the way. 18 it. 19 Abandoned his client; after many years and almost two million 20 dollars, he walked out the door. I keep saying it. And it's a finding. I've made it a finding in writing. 21 Left. That's pretty I've already said I keep saying it. Left you here. And if the facts are so severe as alleged, all these 22 other teams just keep marching along. 23 along. They just keep marching So that is certainly one option, right? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12332 And the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 unfairness of that process is brought about by conduct of MCDO 2 and the defense counsel. 3 But then you've got to, you know, factor in 4 efficient. 5 good call, Judge Spath? 6 other learned counsel get appointed and not give them all the 7 prep time because you're sitting here. 8 options -- you know, there's other avenues of, you know, 9 avenues of explanation and avenues of recourse. 10 Ultimately is the appellate court going to say Or maybe you should have paused, let And they do have So that's what I'm trying to figure out. 11 I assume you've read 1.16(d) in your bar rules and 12 everybody else's about if you're ordered to represent your 13 client, even if you've shown good cause to be excused in a 14 tribunal or a court, you do it. 15 protected, right? 16 complaint from your client, because the decision was made by 17 not the attorney, but by the presiding official, be it a 18 tribunal or a court. 19 20 That protects you from the follow-on ethics I mean, it does -- I mean, you have read it, I assume. You agree those are words on paper at least, right? 21 DDC [LT PIETTE]: 22 MJ [Col SPATH]: 23 And that's because you're Yes, Your Honor. I mean -- and there's a reason they're in there in our bar rules, because frequently advocates disagree UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12333 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 with rulings from judges. 2 usually one half of the room is unhappy. 3 room is unhappy. 4 whatever I ultimately rule. 5 occurrence -- or not a recent -- a frequent occurrence, sorry. 6 Anyway, sorry. 7 I think I told Mr. Koffsky, right, Sometimes the whole Rarely does the whole room feel good about DDC [LT PIETTE]: That is not an often Your Honor, on that note, speaking at 8 least for myself, and I presume for many defense attorneys, I 9 mean, I'm not particularly concerned with protecting myself 10 but with protecting my client. 11 Wells in that I think yesterday the findings of fact you laid 12 out were a good first half, but you left out the actual 13 reasons that the attorneys left. 14 had something to do with this stuff that could have possibly 15 affected the other teams, but this was very Nashiri-specific. 16 MJ [Col SPATH]: And I would agree with Colonel It had nothing -- well, it And what have I done about that? 17 begged, asked, and pled to get all this information 18 declassified to the greatest extent possible. 19 DDC [LT PIETTE]: 20 MJ [Col SPATH]: I have Yes. But I have seen that. I'm trying to 21 think how to talk in -- I don't even want to talk in 22 hypotheticals. 23 because I've managed not to through this whole process over I don't want to cause a spill by mistake, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12334 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the years. 2 I looked at the same stuff. I have Mr. Kammen, who 3 said I have no evidence that the prosecution has any, any 4 attorney-client communications; came from your lead counsel. 5 I have officers of the court sitting over here telling me we 6 have received no attorney-client information or intrusions. 7 You know the case law. 8 That's what it is. 9 not for a moment suggesting there should be intrusion into You need intrusion and prejudice. Like it or not, that is what it is. I am 10 attorney-client meetings; I don't think there should. 11 officers of the court they said we are not aware of any, we 12 don't know of any, we have not been privy to any. 13 they've said. But as That's what 14 How do you -- truly, knowing my personality so far in 15 UI practice and then the MRI and all of that, if in a month or 16 two you come to me with real evidence of actual intrusions 17 that the prosecution knew about, how well do you think that's 18 going to be received by the commission? 19 well. 20 I think we know: Not We know that. I'm happy to release the whole series. If I could 21 order declassification, I would. I can't. 22 And so that is why I have asked. I think I've been asking for 23 five months: Declassify. The law is clear. And what I get back frequently is UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12335 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 tell us what you want declassified. 2 This issue has caused tremendous tumult in the 3 commissions. 4 obvious to me from what I've said, it all should be 5 declassified. 6 cut out, right, names of buildings, a room name or a place. 7 This is easy stuff to declassify. 8 national security interest are we protecting? 9 And again, as the presiding officer, it seems This issue of intrusion -- it is not hard to And we know this: It really is. What Sometimes it appears -- I'm not 10 suggesting it's done that way -- classification efforts are 11 made by OCAs because they don't like the information. 12 how it appears. 13 saying in a general sense. 14 We all see it all the time. 15 stuff? 16 release, they should. 17 That's And I'm not saying in this case; I'm just I've asked. We have all seen it in the news. Why aren't we declassifying this They should do it. What they can Certainly if I was the administrator of the facility 18 I would want information out, because the facility is 19 constantly under attack for being mismanaged. 20 want to tell the public it's not? 21 Presiding official for one case, trying to figure out the 22 right way ahead. 23 DDC [LT PIETTE]: Wouldn't you But who am I, right? Yes, Your Honor. And I think -- I guess UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12336 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 really the only thing that I have to say here besides -- maybe 2 we'll figure something out. 3 Wells and we will propose some findings of fact we think -- 4 because we agree -- I think what he's saying is something 5 needs to trigger something else maybe in federal courts to 6 happen, and I'm not hearing what that is. 7 Maybe I'll work with Colonel But I want to say -- I guess the only thing I really 8 want to say is I know -- I can see why it appears to be a 9 strategy. I can see why this evidence could support a 10 finding, if that's what you want that finding to support. 11 you know, to anyone -- for what it's worth, no attorney in 12 their right mind would give up the presumption of evidence and 13 the beyond every reasonable doubt standard that you get at 14 trial to gamble on the standard of review, like the Strickland 15 standard that you get at appeals courts, all to avoid, I don't 16 know, a cross-examination or a presentation of the evidence 17 that's -- no attorney in their right mind would do that. 18 But I can hope that the courts see that, that the people 19 see that, that you see that, and understand that this is not a 20 strategy. 21 that this was the only way to stop this from steamrolling 22 forward in an unfair manner. 23 really what I wanted to get up here and express to the court. There were genuine, legitimate concerns and views So that's -- I guess that's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12337 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Thank you. MJ [Col SPATH]: No, I understand. 3 MCDO strategy; I know you know that. 4 findings. 5 I do think it's an I have made many Had you engaged in cross-examination, we would be in 6 the same place right now. 7 and that is the community is leaving you by yourself and no 8 action is being done to force these issues, it appears. 9 they are and I don't see them. 10 My frustrations would be the same; But we're months into it. Maybe I have been incredibly 11 patient. 12 are we going to do about this? 13 this? 14 get some more lawyers? 15 were to keep driving on, why isn't your team resourcing you 16 with lawyers? 17 without learned counsel. 18 specific ruling from the court and 1.16. 19 from the ethics issues, and your client is protected by a 20 fair, impartial judge. 21 I was trying to see -- you know what I mean -- what What are we going to do about Are we going to get any resolution? Are we going to Are we -- and again, I have -- if I I know, because you can't introduce somebody But that flies in the face of a You are protected At the end of the day, right, what are the remedies 22 down the road? 23 for what could be perceived as late discovery, what could be We haven't even discussed or debated remedies UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12338 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 perceived as problems in the process getting there. 2 those remedies? 3 Where are We're going to have those discussions, too. You're not the only one interested in protecting your 4 client's rights. 5 sides' rights, ensure the trial is fair and individual rights 6 are protected, right? 7 this process, and I have encouraged you to do it because I 8 think it's better for your client, I think it's better for you 9 professionally. 10 The only difference: I have to protect both That is, you have a particular job in But that -- that is what it is. I'm not ruling on anything tonight. Thanks. I will give you 11 kind of where I think we're at. 12 times in multiple manners that outside appointed learned 13 counsel has not been excused. 14 that the Regulation for Trial by Commissions somehow overrides 15 the Manual for Military Commissions, right? 16 in some of the responses, frankly, from the defense. 17 isn't. 18 Military Commissions has an ambiguity in 506, and I believe it 19 is ambiguous as you try to read all the provisions together. 20 And it is a fact that I have interpreted the Manual I mean, I have ruled multiple And it's not based on a belief We have seen that It It is based on the fact that I believe the Manual for 21 for Military Commissions based on standard rules for statutory 22 construction. 23 the meaning, through congressional intent, how other If it is ambiguous, you've got to figure out UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12339 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 jurisdictions do it, how every other jurisdiction across 2 America deals with information excusals in trial, right? 3 was what the ruling was based on. 4 That Additionally, I've ruled that appointed vice detailed 5 counsel are different in the manual, clearly different. 6 are different categories. 7 different contractual relationship with the commission than 8 any other DoD counsel and detailed military defense counsel. 9 Frankly, that's the only counsel, right, that I certify the They Outside learned counsel are in a 10 hours for or the pay for. 11 significant difference. 12 other counsel's pay or hours they spend on a case or anything 13 like that. 14 They come to me to sign. A I don't see anything to do with the I do for learned counsel. In this case outside learned counsel continued 15 representation for years -- F-O-R, not F-O-U-R -- for years, 16 collecting 1.8 million dollars; and in the initial motions, 17 related to the issues at hand, was only requesting different 18 meeting space as a potential to resolve the issue that I have 19 found didn't occur. 20 that was one of them. 21 we're all happy. 22 learned counsel filed that motion. 23 the opportunity to meet in other locations with their client. If you go back and look at the motions, Just let us meet somewhere else, and That's been occurring consistently since Defense counsel has had UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12340 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Once a case has outside appointed learned counsel, 2 that individual has some authority to accept or release 3 counsel from his or her team as learned counsel sees fit. 4 think we all agree on that as well. 5 authority to release counsel, to build or release from their 6 team. 7 that with the two civilians who had made an appearance in this 8 case. I They do have some But here outside learned counsel did not endeavor to do General Baker released them; learned counsel did not. 9 I have ruled on multiple occasions the two DoD 10 civilians have not been released from the case because of that 11 issue. 12 them. 13 occurred, especially with Mr. Kammen not showing up for trial 14 and Ms. Eliades arguably being capable of being a learned 15 counsel. 16 General Baker didn't have the authority to release Mr. Kammen might have. And I have not, based on what They have ignored multiple orders to attend 17 commission hearings, multiple scheduling orders, multiple 18 docketing orders. 19 Center, and now they've ignored subpoenas that were properly 20 served on them. 21 getting paid at taxpayer expense. 22 continue to go to work in MCDO. 23 They ignored orders to go to the Mark And they've been reassigned in DoD, still Despite all of this, they Here General Baker, of course, chief defense counsel, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12341 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 purportedly acted to release outside appointed learned counsel 2 and the two DoD civilians based on an opinion from 3 Ms. Yaroshefsky. 4 Mr. Kammen, along with some other information he purportedly 5 reviewed, to include the classified and unclassified 6 information related. 7 That opinion was addressed only to None of the information submitted indicates there 8 were opinions from any of the state bars for these attorneys. 9 Apparently, they all relied on Ms. Yaroshefsky. At least 10 that's the information that was submitted here. As we know, 11 General Baker refused to explain his rationale or basis to the 12 commission in any more detail than in the excusal memo, which 13 of course ultimately led to the contempt issues. 14 Also of note, given his purported stated unilateral 15 and unreviewable authority to excuse defense counsel -- let 16 that sink in. 17 authority, that I know of, across most of any court system. 18 don't have that authority; that's for sure. 19 Court, arguably unilateral and unreviewable; but even there, 20 Congress will step in and act in contravention to them. 21 Unilateral, unreviewable authority to excuse defense counsel. 22 However, he left Lieutenant Piette on the case, who has the 23 very same issues. Unilateral, unreviewable. Nobody has that The Supreme UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12342 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The only reasonable explanation is Lieutenant Piette 2 said he remained on the case in order to continue to represent 3 his client and that his client had some representation. 4 made a choice according to what he has said in here. 5 He General Baker also left every other defense team 6 across the commissions intact, which indicates to me none of 7 them have asked for a release, based on all of this 8 information. 9 General Baker, Mr. Kammen, and the two DoD learned counsel's What this shows me is it's more information that 10 actions are both arbitrary and purposeful. 11 at stopping or mortally harming these proceedings. 12 They are directed This commission continues to find, as supported by 13 significant evidence, this course of conduct shows a 14 strategic, concerted effort by the Military Commissions 15 Defense Office, which is different than Lieutenant Piette, a 16 strategic course of conduct by the Military Commissions 17 Defense Office to undermine the commissions process and 18 attempt to halt the only commissions case entering the 19 evidence pretrial admissions stage -- capital commissions case 20 entering the pretrial admissions stage. 21 All of this has occurred, also, as the commission was 22 approaching the deposition cross-examination for Mr. al Darbi 23 who, according to the defense, is the only eyewitness and most UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12343 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 critical government witness, after months of preparation time 2 provided at defense request to prepare that cross-examination, 3 and delays at defense request to prepare that 4 cross-examination. 5 This decision was also made very soon after the 6 commission issued what some have called an aggressive 2018 7 calendar year schedule, with significant time to be spent here 8 at Guantanamo Bay, to which learned counsel immediately 9 expressed tremendous reservation, despite an employment 10 11 contract that indicates he has to comply by those schedules. After multiple refusals to appear by learned counsel 12 and DoD civilian counsel, the commission ordered all other 13 detailed counsel who had yet to make an appearance to do so at 14 the next scheduled commission proceedings. 15 been January 2018. 16 chief defense counsel for this case released all those counsel 17 from representing the accused. 18 did mistakenly identify how many counsel were released; 19 Lieutenant Piette properly pointed out actually three were 20 released, not the two military counsel, leaving the accused 21 with a single detailed defense counsel. 22 least experienced. 23 detailed, compare them to Lieutenant Piette, as much as I That would have Immediately after that order the acting Of note, when he testified, he Of note, it's the If you go look at the three who were UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12344 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 appreciate Lieutenant Piette and have empathy, those three 2 have more experience, and MCDO released them rather than have 3 them make an appearance. 4 As we learned this week, the detailed defense counsel 5 was comfortable in taking part in that decision regarding the 6 release of additional counsel and determining this was the 7 right course of action in a capital case, although he will not 8 take any other action in this capital case, for the most part. 9 His explanation was better one attorney saying nothing in 10 court than more than one just doing the same. 11 ignores is each defense counsel's independent duty to advocate 12 and represent for their client zealously. 13 But what that What it does is it shows a coordinated plan on behalf 14 of the defense community to not defend their client in court 15 when given the opportunity to do so. 16 acknowledge a ruling by the commission that at the time we're 17 going to move forward with pretrial admission of real 18 evidence. It shows a refusal to 19 As I said multiple times, I believe the way the 20 statute is written and it is to be applied here, defense 21 counsel -- or the accused, rather, is entitled to learned 22 counsel to the greatest extent practicable, and that learned 23 counsel is not practicable in this proceeding at this time. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12345 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 And that is based on learned counsel's own conduct and the 2 Military Commission Defense Organization's conduct. 3 Despite those rulings, Lieutenant Piette refuses to 4 engage in what I find to be the basic acts or efforts of 5 advocacy related to real evidence admission only, and that's 6 all we've done, instead stating that he is not competent or 7 qualified to handle questions related to real evidence, 8 photographs, that are all foundational in nature. 9 And as he's demonstrated when he has talked to the 10 commission, he's quite capable of practicing that portion of 11 our practice. 12 understanding that these are -- there are jurisdictions out 13 there that don't even require learned counsel at any stage of 14 the proceeding. 15 want. 16 you don't like it. 17 require learned counsel. 18 bar rules, Navy Rules of Professional Responsibility, and the 19 directive language you find in the Manual for Military 20 Commissions and the Regulation for Military Commissions 21 related to the responsibilities of detailed military defense 22 counsel and their need to represent their client. 23 And Lieutenant Piette has done that despite Again, agree or disagree with it all you I would go work in those jurisdictions to pass a law if There are jurisdictions that do not And in the face, frankly, of his own I would suggest, though, for any reviewing UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12346 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 authorities down the road, I have great empathy for Lieutenant 2 Piette, because he was left in this position by the behavior 3 and conduct of the outside appointed learned counsel, the 4 chief defense counsel, the acting chief defense counsel, and 5 the Military Commission Defense Organization as a whole. 6 I know the government keeps indicating we're in fact 7 finding and we're moving through the process thoughtfully, but 8 it seems apparent -- I've said it -- learned counsel has 9 abandoned his client. He's not coming back. The two DoD 10 civilians simply refuse to obey orders and subpoenas, in clear 11 contravention of their duties as employees of the Department 12 of Defense. 13 zealously or otherwise, despite multiple rulings from the 14 commission. 15 And they refuse to represent their client And so we arrive here, right? What do we do? After 16 years of effort, we now have a single detailed military 17 defense counsel. 18 Military Commissions Defense Organization, a defense community 19 that believes it can exercise, and did, unilateral authority 20 to excuse defense counsel at any stage of the proceeding, to 21 include learned counsel; and now an approximately 22 four-and-a-half-month gap in providing additional defense 23 counsel to this team, despite the commission, frankly, No end in sight to the behavior of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12347 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attempting to push both the Military Commission Defense 2 Organization, the prosecution, the convening authority to do 3 something. 4 We also have a process where commission orders are 5 willfully ignored. 6 effort is being made to appeal many of these rulings over 7 which there's disagreement. 8 commission to move forward efficiently and fairly is clearly 9 in doubt. Rulings are ignored. No significant And the ability of this We have a process where we continue to attack the 10 process as if, frankly, the commission -- me -- were the 11 answer to fix it, that I approve this process, that I detailed 12 myself to this process, or that I have any stake in this 13 process. 14 I will tell you, I'm doing what I'm supposed to. My 15 boss told me you are going to serve as a commissions judge. 16 The chief judge of the commissions said you're going to serve 17 on that case. 18 have. 19 recuse myself. 20 preference. 21 the Armed Forces should do, follow rulings and orders. 22 we've seen that we have many who won't. 23 If I had a basis to recuse myself, I would I didn't. And so the way the bar rules read is I don't You don't do it out of a matter of personal And frankly, this is no more than any member of And again, I have said it multiple times: UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12348 This But UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 commission has been set up -- right? 2 President Bush. 3 And clearly President Trump hasn't done anything to alter the 4 process, and Congress passed it. 5 given uncertainty to every single person involved in the 6 process, right, both the accused and the public. 7 spectacle for the public that infuses doubt into this process, 8 and it gives us the real likelihood of either continued delays 9 or roadblocks, more doubts about the process, and an appellate It was set up by It was then reestablished by President Obama. So what we have done is It's a 10 process that will be vigorous and possibly detrimental to any 11 finding, if there were one, of guilt. 12 You know the other thing it does? It causes pain, 13 stress, and uncertainty for every single person involved. 14 That includes everybody sitting in the room, everybody back 15 there, and everybody watching, with no apparent purposeful 16 movement by many involved to fix this. 17 to press on in the face of constant roadblocks, recalcitrance, 18 and disobeyance of orders. 19 and somebody ultimately owns this process. 20 Others have that responsibility, Not me. So I have been trying to figure out what are my 21 options. 22 many more. 23 And it is not my job I managed to come up with seven; there's probably And some work in concert with each other. One, I can issue writs of attachment, right, for the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12349 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 two DoD civilians. 2 attachment. 3 marshals will go get them and they'll bring them to the Mark 4 Center. 5 telling that there were no filings in federal court to stop 6 the writs or to preempt the writs, like Mr. Kammen did, 7 because, frankly, I think that's what the civilian learned -- 8 or the civilian DoD counsel want, because once I do that, 9 clearly good cause will exist, and I will have to determine if I believe those are lawful writs of The rules clearly contemplate them. I don't know if they'll testify or not. I think the I think it's 10 they should be released. 11 represent your client if you are facing adverse actions 12 because of your client's case. 13 end state. 14 show cause why they should be released. 15 of circular, right? 16 release by the fact that we've issued a writ and dragged them 17 over to the Mark Center. 18 And it's hard to continue to I think that's their desired But on the other hand, let's do it and have them But again, it's kind They will have shown cause for their Two, maybe we should get the person who owns the 19 process to testify by VTC. 20 testify. 21 your process, sir. 22 has a rogue defense organization within the process, it would 23 appear. Maybe General Mattis should Maybe he should explain: It's not mine. What are you doing? It's Maybe that will help. And so does he know it, is he going to do anything UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12350 He UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 about it, and are these important? 2 3 I can abate, just send us all home until somebody figures it out. 4 I can dismiss with prejudice, because that will force 5 the government to go get all the answers I want. 6 I guarantee you someone will file in federal court, someone 7 will file with CMCR, and somebody will go get some assistance. 8 I can dismiss without prejudice or with. 9 right? Because then Concerns there too, Are you going to really reward recalcitrance and 10 ignoring orders with punishment to the prosecution? 11 an option, because it will force somebody to go do something. But it is 12 Status quo. 13 Or I can release the three counsel, find good cause We can just keep doing this. 14 has been shown based on their behavior, and let Lieutenant 15 Piette move to trial in a capital case until an appellate 16 court stops the process. 17 I mean, that's kind of the field -- that's kind of 18 how I see it. 19 is we deserve and need some guidance from somebody. 20 courts of higher review. 21 exceptional issues. 22 hoped some would have been filed by now. 23 I can tell. Those are multiple options, right? What I know We have There are writs of mandamus for I feel like we have some. I would have None have, as far as UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12351 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 We need to know are there going to be any actions 2 taken against what could be viewed as kind of the lawless 3 defense function who defy orders, defy subpoenas, and ignore 4 rulings. 5 continue, and it will slow this process down for another 6 decade. 7 We need some answers there, or it's going to We need to know who can excuse counsel. I've ruled 8 on it, but that was the end of it. 9 end of it, counsel would be here still fighting the issue in But if it was really the 10 another court, right? 11 or we will comply with the order until an appellate court says 12 otherwise. 13 They would be saying I can release them So we need an answer to that question. You want me to file the writ of mandamus to ask have 14 I properly defined the contempt authority this court has? 15 Because, frankly, if people can defy orders, with no response 16 from a court, what is that going to look like when we get to 17 trial, when I, I don't know, overrule -- or sustain, rather, 18 an objection, and I tell the defense you are not going to be 19 able to offer that? 20 Well, there is no contempt authority for disobeying a 21 commission order. 22 right? 23 What's that going to look like with no contempt authority? I would just offer it to the members, What's the punishment? I yell at you? I punish you? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12352 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Nobody cares. 2 And again, any tribunal given contempt authority has 3 to figure out what the limits of it are and use it 4 judiciously, which is why I've only used it once so far, 5 because if I don't have it, I'm not going to use it. 6 need to know, and we haven't got any resolution there yet. 7 But we Are witnesses even going to be amenable to service to 8 go to the Mark Center? 9 there over and over again with marshals? Or can we get the 10 message out that we have that authority? I know it's still 11 pending in Indiana. 12 Or are we going to have to drag them It was resolved in New York, right? Do I -- do I abate a case based on what I have said 13 is the voluntary abandonment by learned counsel, or do I keep 14 moving forward because -- right? 15 not the government's fault. 16 fault. 17 case, or are they required to the extent practicable, like I 18 have ruled already? 19 I'm wrong on that, the case comes back, right? If I'm wrong 20 on that and I go forward, the case comes back. If I'm right 21 on that, we will figure out what other issues are out there in 22 this case, but that one is resolved. 23 Whose fault is that? It's It's that learned counsel's Are learned counsel required in every hearing in every We don't have a final answer on that. I ordered Commander Mizer recalled to active duty UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12353 If UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 months ago, and what I hear now is, oh, it might take seven or 2 eight months. 3 him or not doing it. 4 hiring and resourcing additional learned counsel if we're 5 going to do it. 6 But this months and months and months, is that fair to these 7 families? 8 every month, but the people who own these decisions keep 9 saying it's going to take months to make them. We need demonstrated real movement on recalling We need demonstrated real movement on And if we're not going to do it, don't do it. It's important enough for us to come down here So would a 10 dismissal or an abatement or something like that force them to 11 re-look at this process? 12 Interim clearances, who's doing that? Why aren't we 13 doing it? 14 approval authority? 15 the fire to move things forward by people who own this other, 16 frankly, than the trial judiciary who has spent five months 17 pushing the issues? 18 DoD, Congress, and the White House, maybe somebody needs to 19 demonstrate it, or admit the process needs change again and 20 fix it. 21 Read-ons with interim clearances, who is the Why aren't we getting it done? Where is If these proceedings are important to And I know this is cold comfort for the people 22 involved in the process. 23 say that a lot, and I mean it. Believe me, I have great empathy. I I have no idea what it is like UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12354 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to be involved in the process from outside. 2 Maybe you all start calling your representatives and trying to 3 force change. 4 But, wow, that's where we're at. I don't know. That's the quandary 5 we're in. 6 those seem to be the options that I can come up with. 7 again, some of them work in tandem, right? 8 General Mattis to come next time before we determine whether 9 or not we abate the proceedings or dismiss. I owe you all an answer as to where I'm going, but And Maybe we order Maybe we wait a 10 few weeks to see if anyone is hearing us down here. 11 have waited months, and what I see is that you can violate 12 orders of the commission, violate subpoenas, violate, frankly, 13 rulings openly in court, defiantly. 14 you go back to work and you keep doing your job. 15 But I And the reaction of it is So I'm going to think about this overnight. As I say 16 so often, this is not a ruling. 17 get anywhere on it, I plan to come here tomorrow at 9:30 to 18 give you an idea of what I believe the appropriate road ahead 19 is. 20 get notice sometime later this afternoon if you need to be 21 here at 9:30 or not. 22 next time, whenever that is. 23 at 9:30 tomorrow. I'm thinking about it. If I I won't know that for a little while, so you are going to If you don't need to be, I'll see you If you need to be, I'll see you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12355 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 For your client, he may well care about the answer, 2 and I recognize that, but I also know that coming over here 3 for ten minutes might not be something he wants to do. 4 all can figure that out on your own, whether or not that makes 5 sense. 6 But we -- we need to figure this out. So you We are 7 infecting this process with uncertainty, doubt, and delay. 8 And I know that is not the fair administration of justice. 9 So Mr. Potter will let you know if we are going to be 10 here tomorrow at 9:30. 11 [The R.M.C. 803 session recessed at 1519, 15 February 2018.] We are in recess. 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12356