Ramzi Yousef Trial Transcript Part2

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x UNITED STATES OF AMERICA, 3 v. S1293CR.180(KTD) 4 RAMZI AHMED YOUSEF, 5 ABDUL HAKIM MURAD, WALI KHAN AMIN SHAH, 6 Defendants. 7 ------------------------------x

8 June 26, 1996 10:00 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIA ISMAIL, HASSAM MOAWAD, MIRA RIVERA

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1299

1 (In open court; jury not present)

2 THE COURT: Sit down, sit down. My guess is that

3 someone today is going to make an application to poll the

4 jury or voir dire the jury or whatever. You want to do it?

5 Sure, go ahead.

6 MR. GREENFIELD: Yes, your Honor, based on what

7 occurred yesterday in Saudi, Arabia, I think it's propitious

8 that the Court conduct a voir dire with the jury to

9 ascertain if they're aware of it. If they are, would it

10 affect my client's interest in the course of this trial.

11 There is a lot of publicity on it. The President made a

12 statement yesterday talking about Muslims extremists. My

13 client's accused of being a Muslim extremist, and I think

14 fairness dictates that we ascertain if what occurred in

15 Saudi, Arabia would in effect taint the jury's rendering a

16 fair and impartial verdict in this case.

17 THE COURT: Anybody else want to say something?

18 First of all, there are various ways of handling it. One of

19 them is to go immediately to a complete voir dire

20 individual, you know with each one of the jurors and so on

21 and so forth, and if I do that today I have locked in their

22 mind the connection between these defendants and the folks

23 in Saudi, Arabia, and that's one thing that I certainly want

24 to avoid.

25 Now, I would not be adverse to telling the jury

1300

1 today, look, concentrate on what's going on here, not on

2 some place else. If you want me to, I will talk

3 specifically about Saudi, Arabia, but I'd prefer not to.

4 Possibly, possibly next week, depending upon what's going to

5 continue in the newspapers, I will talk to them about it,

6 but today I think is just the worst day to do it, because

7 that way we lock it in, and I don't think it's the time and

8 the place to do it.

9 MR. GREENFIELD: Your Honor, the thought occurs

10 that possibly maybe a general statement this morning from

11 the Court with respect to occurrences outside the courtroom

12 having no connection.

13 THE COURT: Okay.

14 MR. GREENFIELD: I've seen the Court do it in

15 other cases and I think the Court is right, should there be

16 a whole lot more publicity in the next few days, and you

17 have to focus on it again next week, to make some general

18 statement at this point to disassociate anything to the

19 people in the courtroom at this time.

20 THE COURT: Yes, absolutely. Okay. Anybody else

21 have any comments?

22 MR. KULCSAR: Your Honor, your intention was in

23 any event after a few days to address the matter in some

24 way.

25 THE COURT: Eventually, yes, depending on what

1301

1 goes on. I have no idea what is going to happen in the next

2 couple of days, Roy, but my guess is that it is a wonderful

3 political year, everybody has to make the papers with

4 everything, so I fully expect to have all kinds of comments.

5 MR. GREENFIELD: Nobody has spoken to Eleanor

6 Roosevelt yet with respect to this.

7 MR. KULCSAR: Your Honor, unless Mr. Greenfield

8 feels strongly -- otherwise I would prefer to putting it off

9 a couple of days -- unless Mr. Greenfield feels strongly, I

10 have no problem with it.

11 THE COURT: About saying in general terms, look,

12 I want you folks to concentrate on what's going on here, not

13 about what's going on in other places in the world. What's

14 going on here has no connection whatsoever with other places

15 in the world. That's all I intend to say. That's what you

16 want, isn't it, David?

17 MR. GREENFIELD: Yes, that sounds fine, your

18 Honor.

19 THE COURT: All right. Let's go get the jury.

20 The video cassette that was played yesterday there was a

21 question as to whether it was in Taglog or it was in

22 English. The most English I heard it on were the names of

23 chemicals, which is the last thing that you want to impose

24 upon this jury, I assume they're coming up again, but I

25 couldn't, except for, I think acetone, that I saw yesterday

1302

1 and a couple of others I couldn't read. Then, again, I'm

2 and old man.

3 MR. KULCSAR: Your Honor, I have, or the

4 investigator has a second copy. Actually, the government

5 was kind enough to give me. It's all English and it appears

6 to be someone talking in English to someone else who

7 appeared to be writing down different items that appear on

8 the inventory.

9 THE COURT: This one is in Taglog, the one that's

10 in.

11 MR. KULCSAR: The first one I had, and I'm not

12 saying the first one I had was more Taglog than English.

13 THE COURT: Somebody translated it. I finally

14 figured out what "opo" means.

15 MR. GREENFIELD: What's that?

16 THE COURT: "Opo."

17 (Continued on next page)

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1303

1 (Jury present)

2 THE COURT: Good morning, ladies and gentlemen.

3 I trust you had a pleasant evening. I understand that the

4 marshals provided you newspapers in the morning. I believe

5 they do, right? And I assume that from time to time you

6 watch TV and listen to the radio.

7 An incident occurred which has absolutely nothing

8 to do with this case or with the people here. I want you to

9 understand that. It has absolutely nothing whatsoever to do

10 with it. I wanted to make sure you understand that your

11 decision will be based on evidence here and nothing else.

12 Anybody have any difficulty with that? Okay.

13 Kevin, would you be good enough to get the witness, Orlando

14 Ramilo.

15 ORLANDO RAMILO, resumed, through the

16 interpreter.

17 THE COURT: All right, be seated. All right,

18 cross-examination, Mr. Udell.

19 CROSS-EXAMINATION

20 BY MR. UDELL:

21 Q. Mr. Ramilo, you have been a police officer for 22

22 years; is that correct?

23 A. Yes, sir.

24 Q. And you have risen to the post of being chief of

25 the bomb disposal or explosive disposal unit in the western

1304

1 district in Manilla; is that correct?

2 A. Yes, sir, that's correct.

3 Q. And in that position you have people who work for

4 you, who take orders from you; is that correct?

5 A. Yes, sir.

6 Q. And you train people, younger officers, in the

7 manner in which the job of being a bomb disposal unit is to

8 be done; is that correct?

9 A. That's correct, sir.

10 Q. And obviously you take pride in the way you do

11 your job in the post that you've reached; is that correct?

12 A. That's correct.

13 Q. And you understand that you have certain

14 responsibilities when you go on a mission or go to a

15 possible bomb scene; is that correct?


17 Q. And it's fair to say that the first

18 responsibility is to render the area safe to make sure there

19 is no danger?


21 Q. Now, once that is done, is it fair to say that

22 your second responsibility is to preserve the area, to

23 preserve the integrity of the scene?


25 Q. And would that mean to make sure that thing are

1305

1 not moved around, things are not touched unnecessarily,

2 thing are not added or subtracted from the scene as you find

3 it?


5 Q. And then is your third responsibility to prepare

6 an official report with regard to your findings?


8 Q. And that report has to be as accurate and as

9 truthful as you can make it, is that correct?


11 Q. In order to insure that that report is as

12 accurate and truthful as you can make it you are bound,

13 you're duty bound to make that report the very day that you

14 made your observations?


16 Q. And that is so that you don't suffer from any

17 lapse of memory and the report can therefore be as accurate

18 as you can possibly make it; is that correct?


20 Q. And is it fair to say that your fourth obligation

21 is to provide truthful information regarding your findings

22 to any person or persons who has a right to know about what

23 you found; is that correct?


25 Q. So if you testify in a court of law you must be

1306

1 truthful about what you found before judges or juries; is

2 that correct?


4 Q. You must be truthful as to your superiors when

5 you recount what you observed and to the FBI if they become

6 involved in a case; is that correct?

7 A. Yes, sir. That's why I said the truth when I got

8 here to the United States.

9 Q. You got here to the United States 17 months after

10 the day that you made the observations in room 603; is that

11 correct?

12 A. Yes, sir. That's why when I came here I wanted

13 to clear my conscience.

14 Q. Now, when you went to room 603 on January 6th, it

15 was your intention to perform your duties in the way that

16 you've been trained to perform them just exactly as you've

17 just described them; is that correct?

18 A. Yes, sir.

19 Q. But did it become clear to you at some time that

20 evening that your superiors were not going to permit you to

21 perform your duties that way?

22 A. Could you please repeat the question?

23 Q. Well, you indicated it is very important to

24 preserve the integrity of the crime scene; is that correct,

25 or the scene, correct?

1307


2 Q. Now, you say at some point when you entered the

3 apartment you saw a computer on a sofa; is that correct?


5 Q. And in preserving the integrity of the crime

6 scene it would have been your intention to leave that sofa

7 exactly where it is -- leave that computer exactly where it

8 is on the sofa until it could be photographed or preserved

9 in some way?

10 A. I did not move that object. It was a higher

11 official who moved the object.

12 Q. Exactly. Had you been permitted to do your job

13 the way you learned to do it you would have left it right

14 there until it could have been photographed; is that

15 correct?

16 A. Nobody really gave me a hard time.

17 Q. But they moved it, didn't they?

18 THE INTERPRETER: Could I hear that again, sir,

19 the interpreter.

20 Q. One of them did, one of the Generals or one of

21 the higher-ups ordered some other person to remove that

22 computer from the sofa?

23 A. Yes, sir.

24 Q. And by doing that is it fair to say they changed

25 the scene from the way you saw it when you entered?

1308

1 A. To my knowledge these officials know what they're

2 doing.

3 THE COURT: Mr. Udell, the interpreter is having

4 difficulty if you pace back and forth. It's not for me it's

5 for them.

6 Q. You arrived at room 603 when with Capt. Fariscal;

7 is that correct?


9 Q. So we are clear, there was no attache case

10 outside the door at that time; is that correct?


12 Q. You were permitted entry into that room by an

13 employee of the Dona Josefa hotel; is that correct?


15 Q. There were already police officers in the room at

16 the time?

17 A. Could you please clarify that question? Are you

18 pertaining to the first visit?

19 Q. I'm pertaining to the first visit when you

20 arrived with Capt. Fariscal and your partner and an

21 individual, another individual who you did not know, were

22 there other police officers in the room already at the time?

23 A. The door was locked when we first got there, and

24 somebody opened the door and there were no, there was no one

25 else in there.

1309

1 Q. Did Capt. Fariscal tell you that she had been in

2 that room --

3 MR. SNELL: Objection.

4 Q. -- that evening on a prior occasion?

5 THE COURT: Objection sustained.

6 Q. Now, when you entered the room you testified that

7 there were cartons and boxes immediately observable in the

8 area; is that correct?


10 Q. And were those cartons observable to you before

11 you got to the area where the kitchen was?

12 A. As you open the door you can see most of what's

13 in the living room.

14 Q. So the cartons were right there as you opened the

15 door; is that correct?

16 A. Yes, you can see it immediately.

17 Q. And you had no difficulty seeing this; is that

18 correct?

19 A. Yes, sir.

20 Q. You saw it before you got to the kitchen; is that

21 correct?

22 A. The boxes were right by the divider.

23 Q. Now, you indicated that you and your partner,

24 Mr. Mandigma did an investigation and searched the room; is

25 that correct, searched the apartment?

1310

1 A. We did an inspection.

2 Q. And in the inspection you said you found some

3 things under the bed and you found some things under the

4 sink, and you found some things on the top, in the cabinet

5 above the kitchen area; is that correct?


7 Q. Is it fair to say that things that you found

8 under the bed, which you say are the timers, are things that

9 were not immediately noticeable until you looked under the

10 bed; is that correct?

11 A. Yes, of course that's right, because they were in

12 the bedroom, sir.

13 Q. And the same thing with the pipe that you found

14 in the cabinet under the sink, under the kitchen area, you

15 had to bend down and look in it and reach for it; is that

16 correct?

17 A. As you open the door of the kitchen cabinet it's

18 right there.

19 Q. But with the door closed you couldn't see it of

20 course?

21 A. Of course not.

22 Q. And in fact it wasn't you that received that

23 pipe, it was your partner who opened the door and received

24 it, and showed it to you; is that correct?

25 A. He didn't take it out. When he opened the door

1311

1 of the kitchen cabinet he called me and showed it to me.

2 Q. You didn't see it until he called you over,

3 pointed your attention to it, and then you looked in that

4 direction; is that correct?

5 A. Because when he just opened that door it was

6 right there and since we were side by side each other I

7 could see it.

8 Q. Now, there came a time, sir, when you thought it

9 necessary to notify your superior, Lt. Cruz; is that

10 correct?


12 Q. And was that after you had completed your

13 inspection?


15 Q. And of course you were satisfied at that time

16 that the apartment was safe, there was no immediate danger

17 at that time, right?

18 A. At that time we had very special instructions.

19 Regarding, for example, an incident such as this, we had to

20 consider the fact that the Pope was coming and so if an

21 incident like this --

22 MR. UDELL: May I ask the question be read back?

23 A. -- we were to inform our higher superiors.

24 THE COURT: You want the question read back?

25 MR. UDELL: That's all right, the answer is fine.

1312

1 Q. Did you then, having completed your inspection,

2 prepare to do a report?

3 A. Do you mean a verbal report or a written report?

4 Q. Did you prepare to tell Lt. Cruz exactly what you

5 saw and then reduce it to a written report as is your duty?

6 A. The question to me seems rather confusing. You

7 seem to be talking about two separate items.

8 Q. All right. Was it your intention to tell Lt.

9 Cruz what you found?

10 A. Yes, sir, because that was the instructions to

11 us.

12 Q. And did Lt. Cruz arrive there?

13 A. Yes, sir.

14 Q. And you told him what you found, right?

15 A. Yes, sir.

16 Q. Did you tell him you found an attache case in the

17 hallway with a pipe bomb inside of it?

18 A. No, sir.

19 Q. Because that wasn't the truth; is that correct?


21 Q. And would it have been your intention after you

22 left the apartment to prepare a report?

23 A. The first thing that we really did after we left

24 the apartment was to go out and render safe the pipe bomb

25 that we found.

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1 Q. Was the last thing that you would have done that

2 day would be to prepare a report which truthfully

3 represented what you saw?

4 THE INTERPRETER: Could the interpreter hear the

5 beginning of that question, sir?

6 Q. Would it have been your intention for the last

7 thing that you did that day to prepare an official written

8 report which indicated truthfully your observations in

9 apartment 603?

10 A. While I was in the process of actually writing

11 the report I was given the instructions to insert a certain

12 portion into the report.

13 Q. And the instructions that were given to you was

14 to insert certain items which were not true; is that

15 correct?

16 A. The instruction given to me was to insert that

17 list.

18 Q. And they gave you a list of items which, to

19 insert, as things you saw, which you did not see; is that

20 correct?

21 A. There were many items that I saw. For example,

22 the pipe bomb.

23 Q. Did they give you a list which included items

24 which you did not see?

25 A. I was told to put that report and copy it and

1314

1 include it in my report.

2 Q. And were you told to put things in which you

3 would not have put in your report because you did not

4 observe them; is that correct?

5 A. That was the instruction to me.

6 Q. And you followed those instructions; is that

7 correct?

8 A. Yes, sir, these were the instructions to me by my

9 higher officer.

10 Q. You wrote a report which is headlined

11 Headquarters Philippine National Police, or something like

12 that; is that correct?

13 THE INTERPRETER: Could the interpret hear that

14 again? I'm sorry.

15 Q. All right. You wrote a report on official

16 Philippine police stationery; is that correct?

17 A. I would like, could I please request to see the

18 said report?

19 THE COURT: Is that 3522?

20 MR. UDELL: Can the witness be given a copy of

21 3522.

22 THE COURT: B.

23 MR. UDELL: B like in boy.

24 THE COURT: Here you go.

25 Q. You have that in front of you?

1315

1 A. Yes, sir.

2 Q. Now, does that refresh your recollection that the

3 report is on stationery used by the Philippine National

4 Police?

5 A. In our country we just type a form like this. We

6 don't have like what you have here prepared stationery.

7 Q. Did you type that form?

8 A. Yes, sir.

9 Q. Did you type the title, for instance,

10 Headquarters Philippine National Police?

11 A. Yes, that's the heading for our group.

12 Q. And at the end of the report did you sign it?

13 A. Yes, sir.

14 Q. And did you type in your name and your official

15 title under the signature?

16 A. Yes, it is I who makes the report.

17 Q. Above your signature did you write the words:

18 Submitted for your information?

19 A. Yes, that is our format.

20 Q. And in fact, was the information contained in the

21 body of the report between where you typed in the title and

22 where you signed your name, in the middle is the

23 information; is that correct?

24 A. Yes, sir.

25 Q. And the information, sir, is lies, is that

1316

1 correct?

2 A. That's wrong. Not all of it.

3 Q. Oh, not all of it is lies, but some of it is

4 lies; is that correct?

5 A. There is that portion that was ordered by me --

6 ordered me to insert.

7 Q. Did you testify yesterday that you saw Captain --

8 Lt. Mike Cruz come out of the bedroom with an attache case

9 and stick a pipe in it?

10 A. Yes, sir.

11 Q. Does the report say that you saw Mike Cruz come

12 out of the bedroom with an attache case and put a pipe in

13 it, or does the report say something else?

14 A. This is the kind of report they wanted me to do.

15 Q. And what they wanted you to do was indicate that

16 there was an attache case left in the hall and that attache

17 case contained a pipe bomb; is that correct?

18 A. This is what I was told to write down.

19 Q. And what you were also told to write down was

20 that Capt. Fariscal was the one who found the pipe bomb,

21 found the attache case with the pipe bomb inside it outside

22 the door of 603; is that correct?

23 A. Those were the instructions.

24 Q. But you knew that wasn't true. You arrived at

25 603 with Capt. Fariscal, is that correct?

1317

1 A. These were the instructions given to me.

2 Q. There was nothing -- other than a possible door

3 mat there was nothing in front of the door of 603 when you

4 and Capt. Fariscal arrived; is that correct?

5 A. That's correct. I'm sorry, that's wrong, sir.

6 Q. Was there an attache case with a pipe bomb in it

7 in front of the door of 603 before you got into the

8 apartment?

9 A. No, sir. I was instructed by my officers to

10 write that in my report.

11 Q. Instructed by what officers?

12 A. Lt. Mike Cruz told me to write this portion in

13 the report.

14 Q. Well, after Mike Cruz got there, did other

15 officers of a higher rank than Mike Cruz get there?

16 A. Yes, sir. There were Generals, Colonels, Majors

17 and their aides.

18 Q. There was a Gen. Ebdane and a Gen. Canson, Col.

19 Razon and other people like that; is that right?


21 Q. And they told you to wait a while to stop and

22 they started to talk amongst themselves; is that correct?

23 A. What do you mean, sir?

24 Q. Well, did there come a time after the Generals

25 arrived and the Majors and the Colonels that Mike Cruz, Lt.

1318

1 Mike Cruz comes out of the bedroom with an attache case?

2 A. After they had their conversation.

3 Q. So Mike Cruz arrives, the Generals arrive, Mike

4 Cruz and the Generals have a conversation, and then Mike

5 Cruz goes into the bedroom; is that correct?


7 Q. Had you been in the bedroom before Mike Cruz went

8 into the bedroom?

9 A. Yes, sir.

10 Q. Now, Mike Cruz comes out and he's holding an

11 attache case in his hands; is that correct?

12 A. Yes, sir. After they all were in conversation

13 and there was an order to render safe the pipe bomb.

14 Q. And you saw, you saw that the attache case was

15 opened at that time; is that right?

16 A. In what instance, sir?

17 Q. When Mike Cruz came out he was holding it and was

18 holding it?

19 A. What is open, sir?

20 Q. It was not closed, that you could see the inside

21 of it.

22 A. I didn't see anything like that. I saw him

23 carrying the case.

24 Q. Did you see him put something in the case?

25 A. What I actually saw, what I saw was that he

1319

1 opened the case, took the pipe bomb from the shelf, put it

2 in the pipe bomb -- put it in the case, and that's what I

3 saw.

4 Q. So the thing -- when you say, shelf, do you mean

5 the shelf on top of the kitchen area?

6 A. Yes, sir.

7 Q. So when Mike Cruz comes out of the bedroom with

8 the attache case the pipe bomb is still in the kitchen; is

9 that correct?

10 A. Yes, sir, we didn't move it.

11 Q. And Mike Cruz -- you were doing your job, you

12 were preserving the scene, but Mike Cruz and the Generals

13 wanted you to do something else; is that correct?

14 A. Actually what was important was that that pipe

15 bomb which was capped be rendered safe immediately.

16 Q. And Mike Cruz took that pipe bomb which had to be

17 rendered safe immediately and put it in the attache case.

18 Is that correct?

19 A. Yes, sir.

20 Q. Well, how long, how much time passed between the

21 time that you and your partner, Mr. Mandigma, saw that pipe

22 bomb and the time that Mike Cruz and the Generals and the

23 Colonels and the Majors all arrived and had this

24 conversation? How much time passed?

25 A. We were given orders to implement our jobs as EOD

1320

1 and then after they had a meeting we were given orders to do

2 this work.

3 Q. Did you testify yesterday that after you finished

4 your inspection you went downstairs and called up the office

5 to try to get a hold of Mike Cruz?


7 Q. And that was after you saw that pipe on top of

8 the cabinet; is that correct?

9 A. Yes, sir.

10 Q. So you didn't take any steps at that time to

11 render this thing safe immediately. You went downstairs and

12 called up Mike; is that correct?

13 A. That was because we were following our orders

14 which was that should anything happen we should inform our

15 higher authority first.

16 Q. And did you testify yesterday that Mike wasn't

17 there when you called him?

18 A. It's not that he wasn't there. The phone just

19 kept ringing.

20 Q. And did you testify yesterday that you went back

21 to the apartment and then you heard from Mike; is that

22 correct?

23 A. What I did was I called our desk officer and I

24 asked him to call Mike Cruz and Major Angeles up right away.

25 Q. Now, Mike arrived at 603; is that correct?

1321

1 A. Yes, he arrived.

2 Q. And he was your superior; is that correct?


4 Q. Did you point out this pipe that had to be

5 rendered safe to him immediately?


7 Q. And how much time passed after you pointed out

8 this pipe that had to be rendered safe immediately to all of

9 the Generals and the Colonels and the Majors until all of

10 the Generals, the Colonels and the Majors arrived?

11 A. We were waiting for orders.

12 Q. And how long did you wait for these orders?

13 A. I was a sergeant at that time so I was waiting

14 for orders.

15 Q. And while you were waiting for these orders this

16 pipe which you just stated had to be rendered safe

17 immediately, was laying there on top of the cabinet; is that

18 correct?

19 A. Because we were waiting for instructions.

20 Q. And then there came a time when the Generals and

21 the rest of the brass arrived and they had a conversation

22 with Lt. Cruz; is that correct?


24 Q. How long were they talking, if you can recall?

25 A. I wasn't really looking at my watch. I was

1322

1 waiting for orders.

2 Q. But while they were talking this pipe that had to

3 be rendered safe immediately was laying there on the top of

4 the kitchen shelf; is that correct?

5 A. But what we did was we actually informed them of

6 what we saw, so afterwards we just had to wait for orders.

7 Q. You informed them that you thought that the pipe

8 had to be rendered safe immediately?

9 A. We did inform them that we saw a pipe bomb there

10 sitting up there, and we had to wait for instructions.

11 Q. You informed them that a pipe bomb is dangerous,

12 it could go off it, could blow up, it could kill people?

13 A. They know about this kind of danger.

14 Q. And they stood around talking amongst themselves

15 deciding what to do; is that correct?


17 Q. And they decided that Lt. Mike Cruz should go

18 into the bedroom and come out with an attache case; is that

19 correct?

20 A. I didn't really hear with my own ears what the

21 order was that was given to him, but as for ourselves we

22 waited.

23 Q. But you saw him put the bomb, put the pipe which

24 could have been a bomb inside the attache case and close the

25 attache case, correct?

1323


2 Q. And gave it to you, and you went and rendered it

3 safe with some equipment that was given to you by the United

4 States; is that correct?


6 Q. But when you made out your report you didn't put

7 in your report that Cruz put the bomb, put the pipe in the

8 attache case. You put in the report that you found the

9 attache case in front of the room 603 where Capt. Fariscal

10 said it was going to be; is that correct?

11 THE INTERPRETER: I would like to have this read,

12 please?

13 MR. UDELL: I'll withdraw the question.

14 Q. When you made out your report you didn't put in

15 your report that Cruz put the pipe in the attache case, did

16 you?

17 A. I was given the instruction to do this with my

18 report.

19 Q. And the instruction also was, the report was to

20 say that the suitcase was outside room 603 and the bomb, the

21 pipe was already inside of it; is that correct?

22 A. I was given this order to write the report this

23 way.

24 Q. And the order was to say also that Capt. Fariscal

25 had found the suitcase with the pipe in it; is that correct?

1324

1 A. That was the instructions to me.

2 Q. And you were also ordered to say in your official

3 report that Capt. Fariscal was among official persons saw a

4 foreign person leave that suitcase in front of room 603; is

5 that correct?


7 Q. Now, did you ever personally look inside the

8 suitcase?


10 Q. Well, you say you had a device which renders,

11 which defuses any possible bomb; is that correct?

12 A. We have equipment given to us by the US

13 government.

14 Q. In using that equipment do you have to personally

15 open the suitcase?

16 A. What do you mean, sir? The question seems

17 confusing.

18 Q. Did you take the suitcase, press the clips and

19 open the suitcase and remove the pipe?

20 A. Lt. Mike Cruz opened it and handed me the

21 suspicious device.

22 Q. After he handed it to you you took it someplace,

23 correct?

24 A. We did this in the reclamation area.

25 Q. After you finished in the reclamation area what

1325

1 did you do with the suitcase?

2 A. I didn't really pay attention to that. After we

3 rendered it safe, Mike Cruz gathered together the pieces

4 from the bomb and we all headed back to the office.

5 Q. Did you ever look inside the suitcase to see if

6 anything else was in there besides the pipe?

7 A. No, sir, I didn't really pay attention to that.

8 Q. But on that very same day you indicated you made

9 a report in which you indicated the contents of the

10 suitcase; is that correct?

11 A. Yes, sir, because I was handed a list.

12 Q. And as part of the list of the contents of the

13 suitcase you indicated there was a plastic bag in there, a

14 thin plastic bag and it had Arabic writing on it, didn't you

15 do that?

16 A. He gave me a list and he said I should copy it.

17 Q. Well, you didn't pay attention to what was in the

18 suitcase. What you put in your report above your signature

19 that this suitcase contained a plastic bag; is that correct?

20 A. That was the instructions.

21 Q. And did you also put in your report that this

22 attache case contained certain coins?

23 A. Because this was all included in the list that I

24 was told to copy.

25 Q. So again you falsified your report to include

1326

1 things that you did not see; is that correct?

2 A. Such were the instructions.

3 Q. You wrote in your report, did you not, something

4 to the effect that the attache case was remotely opened and

5 turned out to contain the following: And then you put in a

6 list of objects; is that correct?

7 A. That was the instruction.

8 Q. And one of these objects you listed was a bag, a

9 paper bag that contained Arabic writing; is that correct?

10 A. I copied the list that was handed to me.

11 Q. You didn't write in your report, I'm copying a

12 list that's handed to me. You wrote in your report that you

13 opened the, the suitcase was opened, and it contained the

14 following items and you listed those items; is that correct?


16 THE COURT: Yes. Sustained.

17 Q. Did you indicate that that suitcase contained

18 coins from United Arab Emirates?

19 A. I copied the list that was handed to me.

20 Q. Well, you're a police officer 22 years; is that

21 correct?

22 A. Yes, I became a higher officer in 1995.

23 Q. And so you're experienced, you're experienced

24 enough to reach the point of becoming a higher officer; is

25 that correct?

1327

1 A. Yes, I became a higher officer in 1995.

2 Q. So you understand, sir, that when you're asked to

3 prepare a report which says that there is a suitcase which

4 is left someplace by a foreign person and that suitcase

5 contains not only pipe bomb, it contains something in

6 Arabic, and contains Arabic coins, that is done for a

7 purpose of establishing some type of evidence; is that

8 correct?

9 A. Sir, I really don't know what you would like to

10 come out. The question is too long for me to understand.

11 Q. All right.

12 MR. UDELL: May I approach the witness, please?

13 May I have this item marked as Defendant's A1.

14 (Defendant Murad's Exhibit A1 marked for

15 identification)

16 Q. Sir, have you ever seen that photograph before?

17 A. This is the first time I've ever seen this

18 picture, sir.

19 Q. Now, in 3522B to refresh your recollection, would

20 you look at what you put on 3522B as the list that was given

21 to you, and would you look at that photograph, and would you

22 tell us if that photograph represents what the inside of

23 that suitcase would look like if it contained the things you

24 said were in it?


1328

1 THE COURT: Sustained.

2 Q. Sir, what you put in your report was this

3 suitcase, a suitcase was found which contained a pipe, which

4 contained something with Arabic writing, and which contained

5 Arabic coins, was that correct?

6 A. This was the list that they asked me to copy.

7 Q. And you understand that they asked you to copy

8 that because they were manufacturing evidence to accuse

9 Arabic people of possessing this bomb; is that correct?

10 A. My job really doesn't cover that, sir.

11 Q. Your job doesn't cover your writing -- you're

12 saying that you saw a bomb in a suitcase on top of a piece

13 of paper with Arabic on it, and with coins in there, and

14 your job doesn't cover your understanding that this could be

15 evidence that the person who owned that bomb was of Arabic

16 descent or from an Arabic country?


18 THE COURT: Yes, sustained.

19 Q. Do you understand -- I mean, is it a crime in the

20 Philippines to deliberately file a false report?

21 A. That's possible.

22 Q. And is it a crime in the Philippines to

23 deliberately testify falsely in a court of law?

24 A. Yes, sir.

25 Q. Is it a crime in the Philippines to manufacture

1329

1 evidence?


3 Q. To say that certain things were found in places

4 that they were not found?

5 A. I'm really getting confused by the question,

6 because I don't really know what you're asking.

7 Q. All right. If I may. Do you see this dollar

8 bill?

9 A. Yes, sir.

10 Q. You see it here on the counter?

11 A. I can see it seems like money, but I don't really

12 know if it's real money.

13 Q. If you were to file a report in which you said

14 you took this dollar bill from my pocket, instead of seeing

15 it on the counter, would that be false?

16 A. I don't think I would do that because this could

17 not possibly happen.

18 Q. You did it on January 7th, didn't you?

19 A. Because I was, because I received such

20 instruction.

21 Q. All right. So if the Generals and the Colonels

22 and the Marshals were in the back of the Court and they told

23 you to say you took the dollar from my pocket instead of

24 from here, then you would do it; is that correct?

25 A. I'm not a pickpocket, sir.

1330

1 Q. Unless the Generals told you to be one and then

2 you would be a pickpocket, wouldn't you?

3 A. I am not a thief, sir.

4 Q. Do you understand what a conspiracy is?

5 A. I can't really detail that.

6 Q. In your report you mentioned Capt. Fariscal; is

7 that correct?

8 A. Yes, sir.

9 Q. And you mentioned that Capt. Fariscal left this

10 suitcase in front, this attache case in front of room 603;

11 is that correct?

12 A. I sense that the way you constructed the question

13 is erroneous.

14 Q. Well, Capt. Fariscal did not leave the suitcase

15 in front of 603. You know that?

16 A. What do you mean, sir? Are you pertaining to my

17 report or the question you seem to be asking?

18 Q. Well, do you understand that you could not get

19 away with submitting this false report unless you have the

20 support of Capt. Fariscal?

21 A. What kind of help, sir?

22 Q. Well, if Capt. Fariscal was to see this report or

23 be confronted by it, and say, how could he say I left the

24 suitcase with a bomb in it in front of 603? That isn't

25 true. I didn't do that. Wouldn't that render your report

1331

1 false?


3 Q. And you knew just as you were going to follow the

4 instructions that Capt. Fariscal would also follow the

5 instructions; is that correct?

6 A. I don't know, sir.

7 Q. Now, how many other police officials were in

8 apartment 603 when Lt. Cruz came out with the attache case

9 and put the pipe from the kitchen inside of it?

10 A. There were many.

11 Q. And every single one of those people would know

12 that this report is false, is that correct?



15 Q. Is it fair to say that you know you could not

16 have submitted this false report unless you had the support

17 of every one of those people in the room?

18 A. I would like to request a more direct question,

19 because this is very confusing.

20 Q. Do you understand that you were falsifying this

21 false report, you were participating in a conspiracy by

22 every police officer in room 603 to falsify evidence?



25 MR. UDELL: I'm sorry.

1332

1 THE COURT: He said he objects and I sustained

2 it. It's 11:30. We'll take our morning break.

3 (Recess)

4 (In open court; jury present)


6 interpreter.

7 CROSS-EXAMINATION (continued)

8 BY MR. UDELL:

9 Q. Mr. Ramilo, was one of the things, one of the

10 items that your superiors told you to include as having

11 found in the attache case a second pipe?

12 A. Yes, this is the list that was given to me to

13 copy.

14 Q. So basically it's your testimony that you were

15 given the list, you gave no thought to what was on the list,

16 you just copied it down, and put it in your report; is that

17 correct?

18 A. This was the order that was given to me, sir.

19 Q. Now, you indicated at some point a search warrant

20 was applied for; is that correct?

21 A. Yes, I was with them.

22 Q. Did you personally apply for the warrant?

23 A. No, sir.

24 Q. Have you ever in your experience applied for a

25 search warrant as a police officer in the Philippines?

1333

1 A. No, sir.

2 Q. Did you see the application for the search

3 warrant?

4 A. No, sir.

5 Q. There came a time when you indicated you spoke to

6 representatives from the FBI?

7 A. Yes, sir, we were invited.

8 Q. And when you say, "we," who is the we?

9 A. May I say the names?

10 Q. Yes.

11 A. By we I mean Lt. Mike Cruz, myself, Sgt.

12 Capacete, Sgt. Voltaire Gomez, and Sgt. Mandigma.

13 Q. Were all of these people, excepting yourself and

14 excepting Lt. Mike Cruz, were all these people in the

15 apartment when Lt. Mike Cruz brought the attache case from

16 the bedroom?

17 A. Two of them were not in there.

18 Q. Sgt. Gomez was in the apartment, was he not?

19 A. No, he was not.

20 Q. Your partner, Mr. Mandigma, was in the apartment,

21 was he not?

22 A. Yes, he is my partner.

23 Q. And Mandigma was mentioned in your report, the

24 report you filed on January 7th, was he not?


1334

1 Q. And did you discuss your report with him?

2 THE INTERPRETER: Could the interpreter hear that

3 again, please?

4 Q. Did you discuss your report or show him your

5 report before you and he went to the FBI?

6 A. Once this report was done I was given the

7 instruction that I should file this said report in our

8 office.

9 Q. Your partner, Mr. Mandigma, arrived with you and

10 Capt. Fariscal when you went to room 603 on January 7th; is

11 that correct, the first time?

12 A. Where were we coming from?

13 Q. Were you coming from Capt. Fariscal's office at

14 that time?

15 A. We were all together, sir.

16 Q. And as you said there was no suitcase in front of

17 the door at that time; is that correct?

18 A. Like I said, sir, I was given the instruction to

19 include that in my report.

20 Q. And Sergeant -- Mr. Mandigma, was he in the

21 apartment when Lt. Cruz came out of the bedroom with the

22 suitcase and stuck the bomb in it; is that correct?

23 A. Sgt. Mandigma and I were standing side by side.

24 Q. And was he with you when you were given this list

25 to put into your report?

1335

1 A. I don't remember because I was writing on the

2 table at that time.

3 Q. Do you remember if he was with you when you

4 actually typed up this report which you now say contains

5 some falsehoods?

6 A. I believe he was not beside me because I was

7 alone in the room when I was typing.

8 Q. Was it your expectation that the FBI would ask

9 you questions about what you recovered in room 603 on

10 January 7th?

11 A. We had no idea what they were going to ask us

12 when we were invited.

13 Q. You're saying you had no expectation that they

14 were interested in what occurred in apartment 603 on January

15 7th?

16 THE INTERPRETER: The interpreter needs to hear

17 that again, sir.

18 Q. Is it your testimony that you had no expectation

19 that they would be asking you about the incident of January

20 7th?

21 A. We were instructed that we were being invited and

22 that we should go.

23 Q. Who instructed you that you were being invited?

24 A. Lt. Mike Cruz informed us that we were being

25 invited to the embassy.

1336

1 Q. And Lt. Mike Cruz went also, did he not?

2 A. Yes, we were all together.

3 Q. And did you discuss with Mike Cruz what you were

4 going to say to the FBI?

5 A. We couldn't really do that because we didn't know

6 what we were going to be asked.

7 Q. Well, are you saying that you never discussed

8 with Mike Cruz that you were going to stick to the script

9 when the FBI asked you what you found?

10 A. When we were on our way there we didn't discuss

11 anything like this. All that we know was that we were being

12 invited.

13 Q. Did you discuss with Mike Cruz or anyone else

14 that you were not going to tell the FBI that Mike Cruz was

15 the one who put the pipes into the suitcase?


17 Q. Did you discuss with Mike Cruz before you spoke

18 to the FBI whether or not you were going to tell the FBI

19 that you saw Cruz putting the pipe in the suitcase instead

20 of what you wrote in the report?

21 THE INTERPRETER: The interpreter would really

22 like to request that the question be shortened. Thank you,

23 sir.

24 Q. Did you discuss with Mike Cruz what you would say

25 about how the pipe got into the suitcase?

1337

1 A. We were not really able to discuss this because

2 we didn't know what they were going to ask us when we, when

3 we got invited.

4 Q. I understand that when you say "we" that based on

5 your conversation with Mr. Cruz, you believed he didn't know

6 what the FBI was going to ask you about either?

7 A. What we understood was that we were being invited

8 by the FBI to the US Embassy. That's what we know.

9 Q. Is it your testimony that you and Mr. Cruz had no

10 idea what they were going to ask you about?


12 Q. Were you asked to bring your official report with

13 you when you went to speak to the FBI?

14 A. I'm really baffled how my report got here.

15 Q. Are you saying that you haven't seen your report

16 between the time you made it and now?

17 A. This report as I know was in our office.

18 Q. Did you keep a copy of it after you filed it?

19 A. Everything's in the office, sir.

20 Q. Again, is it your testimony you did not bring

21 your report to the FBI when you went there?

22 A. What I remember is that I did not bring any paper

23 with me.

24 Q. You testified yesterday, and you were asked on a

25 number of occasions, whether or not you lied to the FBI, and

1338

1 do you recall continually saying you stuck with your report

2 when you spoke to the FBI? Was that your testimony

3 yesterday?


5 Q. Did the FBI, either Agent Pellegrino or Agent

6 Ortega ask you if you filed your report?

7 A. What I remember is that they didn't ask me

8 anything like that.

9 Q. And your recollection is they never asked you if

10 you filed it, they never asked to see it, they never asked

11 if any such report existed?

12 A. What I remember is the conversation didn't go to,

13 in this direction, whether I made the report or not.

14 Q. Well, do you remember conversation going to a

15 direction where you told the FBI that you found this attache

16 case outside the apartment and it contained two pipes?

17 A. Could you please repeat the question, sir?

18 Q. Do you remember telling the FBI that you found

19 the attache case outside of the apartment and the attache

20 case contained two pipes?

21 A. What I remember is that I stayed with the way I

22 was told to write this particular portion of the report.

23 Q. Well, you indicated earlier that you were

24 basically just given a list and you copied down the list

25 without paying much attention to it; is that correct?

1339


2 Q. And you testified that after you made this report

3 you never saw it again?


5 Q. Well, after you filed the report on January 7th,

6 did you see that report between January 7th and March 1st

7 when you spoke to the FBI?

8 A. What happened was when I finished this report I

9 filed it in the filing cabinet.

10 Q. And you testified that neither you, nor Lt. Mike

11 Cruz had any idea what the FBI was going to talk to you

12 about when you were summoned; is that correct?

13 A. What I was told was that we were invited.

14 Q. But somehow you knew enough or you remembered

15 enough to tell the FBI that in the attache case was two

16 pipes; is that correct?

17 A. Yes, sir, that was what I was told to write in

18 the report.

19 Q. And somehow you knew enough to remember to tell

20 the FBI that the attache case was found outside of room 603;

21 is that correct?

22 A. I was following what was, what I was ordered to

23 write in the report.

24 Q. And you're telling us nobody prepared you for

25 your interview with the FBI; is that correct?

1340

1 THE INTERPRETER: Could the interpret hear that

2 again?

3 Q. Are you telling us now that nobody prepared you

4 for your interview with the FBI?

5 A. What do you mean prepared, sir?

6 Q. Withdraw the question.

7 Do you understand, and I don't mean to -- let me

8 say. You understand what the FBI is, do you not?

9 A. Do you pertain to the meaning?

10 Q. Well, you understand the FBI to be a police

11 investigatory organization in the United States?

12 A. Maybe it's like that.

13 Q. And the fellow sitting over there, Agent

14 Pellegrino, he was there when they spoke to you; is that

15 correct?

16 A. Where, sir?

17 Q. At the meeting on March 1, 1995.

18 A. I'm really not certain as to the date when we

19 were invited to the embassy, sir.

20 Q. Well, whenever it is that you went there was

21 Agent Pellegrino, Special Agent Pellegrino present?

22 A. Yes, sir.

23 Q. And did you understand him to be a Special Agent

24 with the FBI?

25 A. He introduced himself as a member of the FBI.

1341

1 Q. And he then commenced to ask you questions; is

2 that correct?

3 A. Yes, sir.

4 Q. And yourself being an investigator police officer

5 for 21 years, 22 years, you understood that he would be

6 preparing a report based on your interview, is that correct?

7 A. I don't understand their system, sir.

8 Q. Your system is when you conduct an investigation

9 you prepare a report; is that correct?

10 A. Yes, sir.

11 Q. And is it your understanding the information that

12 you gave to the FBI was false, was it not?

13 A. I followed the instructions to me in making this

14 report and I stuck to that portion.

15 Q. So based on your following the instructions we

16 have an official report filed by you with the Philippine

17 National Police which is official looking, but it's false;

18 is that correct?

19 A. Not the whole report, sir.

20 Q. And we have whatever the FBI did based on your

21 lies to them which is also official but is false; is that

22 correct?

23 MR. SNELL: Objection, your Honor.

24 Q. After speaking to the FBI did you ever speak to

25 any other American officials while were you in the

1342

1 Philippines?

2 A. When, sir?

3 Q. After March 1, 1995, and before June, 1996.

4 A. Yes, sir. They came to the office of Major

5 Angeles and spoke to us.

6 Q. Who came to the office?

7 A. One of them was Special Agent Frank Pellegrino

8 and I don't remember who the other person was, but I

9 remember Frank Pellegrino because he gave me business card.

10 Q. And as best you can can you give us a general

11 idea of when that was?

12 A. What, sir?

13 Q. When Special Agent Pellegrino and the other

14 fellow came to the office and gave you a business card?

15 A. Special Agent Pellegrino handed me his business

16 card during our first meeting at the embassy.

17 Q. Can you tell us when, as best you can tell us,

18 the second meeting was?

19 A. I can't really tell the day nor the date but I

20 believe it was one of the early months of this year.

21 Q. And did you talk to them again about what

22 happened on January 7, 1995?

23 A. I stuck with the instructions as written in the

24 report.

25 Q. So, again, you told them what you were told to

1343

1 say, rather than what actually happened; is that correct?

2 A. I stuck to the report that I was told to write.

3 Q. So is it fair to say then that on two occasions

4 in the Philippines you stuck with the report rather than

5 with the truth in conversations with the FBI?

6 A. I stuck to that portion of the report that I was

7 told to make.

8 Q. All right. Now, did there come a time when you

9 learned that you would be coming to America as a possible

10 witness?

11 A. Yes, toward the end of May.

12 Q. Now, prior to that time did you ever meet

13 Mr. Snell here and Mr. Garcia?

14 A. I don't remember, I didn't remember their names,

15 but I think I recognized them when we were in the embassy.

16 Q. Did you meet them in the Philippines?

17 A. Yes, we saw each other.

18 Q. And did you talk -- you spoke to both of them or

19 either one of them, or who?

20 A. I think they were there. I'm not sure.

21 Q. Do you remember when you came to the United

22 States for this case?

23 A. The 5th of June, sir.

24 Q. And you came with Lt. Mike Cruz?

25 A. We were a group.

1344

1 Q. And you came with Sgt. Gomez?

2 A. Yes, sir.

3 Q. And you came with Officer Ariel Fernandez?

4 A. Yes, sir.

5 Q. And other people in the group; is that correct?

6 A. We were about five.

7 Q. Now, by this time is it fair to say that you knew

8 why you were being summoned to America?


10 that question again, please?

11 Q. Is it fair to say that at this time as

12 distinguished from when you were first invited come to the

13 FBI on March 1st, you knew what was going to happen in the

14 United States; is that correct?

15 A. Yes, sir.

16 Q. You knew you were going to be asked questions

17 about what you saw and where you saw it on January 7, 1995?


19 Q. And between the 5th of June and the 17th of June

20 did you discuss with Lt. Cruz and Sgt. Gomez that you were

21 going to stick to the story that was in your report?

22 A. We did not discuss it, the three of us did not

23 discuss this. On the 17th of June, Lt. Mike Cruz and I

24 talked.

25 Q. Well, between the 5th of June and the 17th of

1345

1 June did you have any conversation with either of these two

2 prosecutors?

3 A. Yes, sir.

4 Q. And did Mr. Snell, the fellow sitting closest to

5 you, speak to you?

6 A. Yes, sir.

7 Q. And did you go over your testimony with him or

8 your possible testimony?

9 A. He asked us again about all the happenings.

10 Q. And were you alone when he interviewed you or was

11 Mr. Cruz in the room also?

12 A. There were many occasions, there were some

13 occasions when many of us were together and then there were

14 some occasions when we would talk with him alone.

15 Q. And this was before the 17th; is that correct?

16 A. Yes, sir.

17 Q. And he asked you about what happened on June --

18 I'm sorry, on January 7, 1995?


20 Q. And when you told him you told him what you were

21 instructed to say rather than what the truth was; is that

22 correct?

23 A. What do you mean, sir, before the 17th?

24 Q. Well, you said that you got here on the 5th, you

25 spoke to the prosecutor between the 5th and the 17th, but it

1346

1 was only on the 17th that you and Mike Cruz decided that

2 your conscience was getting the best of you and you had to

3 tell the truth; is that correct?

4 A. We felt that before we would sit, we would be on

5 the witness stand we would like our conscience to be free

6 and so we decided to speak to them.

7 Q. So you understood when you first spoke to the

8 prosecutors that you were going to be on the witness stand,

9 right?


11 Q. And you understood that the prosecutors wanted to

12 talk to you first so they could tell you the questions they

13 were going to ask so it would go smoothly; is that correct?

14 A. Their constant instruction to us was that we

15 should just tell the truth.

16 Q. Tell the truth; is that correct?


18 Q. But initially you didn't come here to tell the

19 truth. You came here to tell what the people in the

20 Philippines told you to tell; is that correct?

21 A. I really can't blame the people in the

22 Philippines. What I did was I stuck to write in this

23 portion of the report.

24 Q. And what you were told to write in the portion,

25 that portion of that report was what you were going to tell

1347

1 these people, these jurors what was the truth; is that

2 correct?

3 A. When we got here we decided to tell the truth.

4 It is very difficult to speak when one's conscience is

5 weighed down.

6 Q. So before your conscience got the best of you, in

7 the 17 months before your conscience got the best of you, it

8 was your intention because of what your superiors told you

9 to do to lie to these people; is that correct?

10 A. What do you really mean, sir?

11 Q. You were going to tell these people what your

12 superiors told you to say in the report.

13 A. That's why, sir, I would like to repeat, before

14 we got here to the stand we decided that we would like to

15 tell the prosecutors like Mr. Snell what actually happened.

16 Q. The first time you spoke to Mr. Snell did you

17 tell him what happened?

18 THE COURT: It's now 25 minutes to 1, Mr. Udell.

19 We're going to take a lunch break.


21

22

23

24

25

1348

1 (Jury not present; witness and interpreter not

2 present)

3 THE COURT: How much longer?

4 MR. UDELL: Actually, your Honor, I'm trying to

5 ask him the last question. I may be finished. Not longer

6 than a minute.

7 THE COURT: How long do you expect to be?

8 MR. GREENFIELD: At least the rest of the

9 afternoon.

10 (Luncheon recess)


12

13

14

15

16

17

18

19

20

21

22

23

24

25

1349

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

2 2:00 p.m.



5 interpreter.


7 BY MR. UDELL:

8 Q. Mr. Ramilo, do you know if an Officer Edilberto

9 Capacete was present in the room 603 when Lt. Cruz came out

10 of the bedroom with the suitcase?

11 A. He wasn't, sir.

12 Q. He wasn't. Was he ever in the room, did you ever

13 see him in the room that evening prior to that day, prior to

14 the time that you returned with the full team and the search

15 party?


17 THE COURT: I'm not sure I understand it either.

18 Q. Did you see Mr. Capacete in the room, in room 603

19 on January 7, 1995?

20 A. He was with us when we went back to the

21 apartment, when the other officers were carrying search

22 warrant.

23 Q. Was he ever there before that time, do you

24 recollect?

25 A. No, sir.

1350

1 Q. One other question. When you spoke to the FBI in

2 March of 1995, was Assistant US Attorney Mr. Garcia present,

3 do you recall?

4 A. I don't really remember the date that you're

5 mentioning and who, in what place, what this meeting is

6 supposed to have occurred.

7 Q. Did you ever see Assistant US Attorney Garcia in

8 the Philippines?

9 A. Maybe I saw him.

10 MR. UDELL: No further questions.

11 THE COURT: David.


13 BY MR. GREENFIELD:

14 Q. Good afternoon, sir.

15 A. Good afternoon, too, sir.

16 Q. Your present rank is?

17 A. I'm a police inspector.

18 Q. On January 7, 1995, were you a senior police

19 officer 4th grade?

20 A. Yes, sir, the equivalent of that is a sergeant.

21 Q. Sir, would it be fair on my part to assume that

22 you speak and read English fluently?

23 A. Yes, sir.

24 Q. And you you've spoken and read and written

25 English for many years?

1351

1 A. Yes, sir.

2 Q. Did someone suggest before you came to the

3 courtroom to ask that you use an interpreter in these

4 proceedings?

5 A. I believe I need one.

6 Q. You speak English fluently, correct?

7 A. In the Philippines the way we, the language that

8 we speak commonly is what we call Taglish.

9 Q. The report in question that you wrote on January

10 7, 1995, was that written in Taglish or was it written in

11 English?

12 A. It's in English, sir.

13 Q. Did someone suggest to you, sir, that you avail

14 yourself of the use of an interpreter in the course of this

15 proceeding, yes or no?

16 A. We told the prosecutors that we believe we need

17 one.

18 Q. And did someone suggest to you in the Philippines

19 that you suggest that to the prosecutors?


21 THE COURT: No, I'll permit it. Go ahead.

22 A. We don't know, sir.

23 Q. I'm talking about you personally. Did somebody

24 recommend or suggest to you that you ask for an interpreter

25 during the course of this proceeding?

1352

1 A. When we were speaking with the prosecutors here

2 in the United States they asked us if we needed one.

3 Q. Sir, my questions are directed to you, not we,

4 okay? All my questions are directed to what you did and

5 what you said. You understand that?

6 A. Yes, sir.

7 Q. Is it your testimony -- withdrawn.

8 Did you not say a few moments ago that you

9 decided while in the Philippines that you would request an

10 interpreter here?

11 A. Only in the United States.

12 Q. Were you given any special instructions by

13 higher-ups in the Philippines to request an interpreter?

14 A. No, sir.

15 Q. And if a higher-up in the Philippines told you

16 not to admit to that, would you not admit to that, isn't

17 that correct?

18 A. The way people speak English here is very

19 difficult for us to understand.

20 Q. Sir, with respect to what occurred in January of

21 1995, did you ever receive an order from a higher-up within

22 the Philippine National Police department to file no reports

23 in this case?

24 A. I did not talk to any very high officials at that

25 time. The only person who told me about this order was Lt.

1353

1 Mike Cruz.

2 Q. Sir, my question to you is, in January of 1995,

3 did you receive an order from a higher-up to file no reports

4 in this case?

5 A. I didn't receive anything from them.

6 Q. Sir, you would agree that in the course of good

7 police procedure reports are important, correct?

8 A. I know that, sir.

9 Q. Among the reasons you file reports is to inform

10 others within the Police Department of what occurred,

11 correct?


13 Q. It's to aid other police officers who may be

14 helping in the investigation?

15 A. It's possible, sir.

16 Q. And if the time came when you had to testify in

17 court you can use the report to refresh your recollection,

18 isn't that correct?


20 Q. But, also, once you've written the report it's

21 been memorialized, it's written, correct?

22 A. What do you mean by that question?

23 Q. If you write on a piece of paper that you saw

24 something happen, what you wrote on the piece of paper is

25 what you say happened, isn't that correct?

1354

1 A. Yes, that's right. If there, it is not the same

2 situation as my situation when someone told me what to do.

3 Q. Please sir, please don't anticipate my next

4 question. Answer the one that's in front of you, okay?

5 MR. SNELL: Your Honor, I object to that. I

6 think that wasn't called for.

7 THE COURT: Go ahead.

8 MR. GREENFIELD: Thank you, your Honor.

9 Q. When you prepare --

10 THE INTERPRETER: Would you repeat for the

11 interpreter what you said?

12 Q. I'll repeat the question. When you prepare a

13 report the report is supposed to reflect what actually

14 occurred, isn't that correct?

15 A. Yes, sir.

16 Q. And once you've prepared that report you're bound

17 by what's in it as to what you say occurred, isn't that

18 right?

19 A. That's right, sir.

20 Q. Sir, I believe you've testified previously that

21 late May, 1996, was the first time you learned you were

22 coming to the United States to testify in this case. Is

23 that a fair statement on my part?


25 Q. Now, who informed you that you were coming to the

1355

1 United States?

2 A. Two FBI agents went to our office.

3 Q. Who personally informed you that you were coming

4 to the United States?

5 A. The two FBI agents.

6 Q. Did you have any conversations whatsoever with

7 any higher-ups in the Philippine National Police as to the

8 fact that you were coming to the United States?

9 A. When the two FBI agents came to our office we

10 headed into Gen. Ebdane's office.

11 Q. Excuse me?

12 A. When the two FBI agents went to our office we all

13 headed to Gen. Ebdane's office.

14 Q. With the FBI agents in tow?

15 A. Yes, sir.

16 Q. And did you seek the approval of Gen. Ebdane to

17 come to the United States?

18 A. What I overheard was that the FBI wrote to the

19 Philippine National Police requesting us to come to the

20 United States.

21 Q. Did Gen. Ebdane tell you to come to the United

22 States?

23 A. What I know is that I was told that a copy of the

24 letter from the United States came to our office, and

25 another copy of the letter permitting us to come to the

1356

1 United States came to our office.

2 Q. My question to you is, did Gen. Ebdane --

3 THE COURT: They can't hear you.

4 MR. GREENFIELD: Can you hear me? I'm sorry.

5 Q. My question to you, sir, is did Gen. Ebdane tell

6 you to come to the United States, yes or no?

7 A. Yes, sir.

8 Q. He ordered you to come here, isn't that right?

9 A. Yes, sir.

10 Q. And he ordered the other officers in the

11 Philippine National Police to come here, also, as far as

12 you're aware of that, isn't that correct, sir?



15 Q. Are you aware of any other officers that he

16 ordered to appear in the United States?

17 A. What I know are the personnel of the EOD that

18 came in a group together.

19 Q. Capt. Fariscal, did she come to the United States

20 with you?


22 Q. You keep referring to Ebdane as a General. Is

23 that his rank in the Philippine Police Department?

24 A. The equivalent of General is what we call the

25 chief superintendent, also.

1357

1 Q. There is no rank of General within the police

2 department. His rank is chief superintendent, isn't that

3 correct?

4 A. There is, sir. The rank of General Sarmiento,

5 the rank of, for example, of General Sarmiento is Director

6 General, so we do have a General.

7 Q. And the only General you do have is the Director

8 General Chief of Police. Correct?

9 A. That is the Chief PNP.

10 Q. Chief Inspector is the rank that is not Director

11 General -- withdrawn. Director General is not an equivalent

12 to the Chief Inspector, is it?

13 THE INTERPRETER: Sir, the interpreter needs just

14 repeat it.

15 Q. All right, fine. The rank of Chief Inspector is

16 not equivalent to Director General, is it?

17 A. It's different now because the ranks in the

18 Philippine National Police have been changed.

19 Q. The fact of the matter is the ranks in the

20 Philippine National Police are Director General is the

21 number one officer within the Philippine National Police

22 Department, correct?

23 A. Yes, sir.

24 Q. And Deputy Director follows that, isn't that

25 correct?

1358

1 A. There are many rankings, there are so many new

2 ones, I don't know about this.

3 Q. Sir, when you learned you were coming to the

4 United States after the FBI left, did you have any meetings

5 with the higher-ups in the Philippine National Police and

6 receive any special instructions with respect to your

7 testimony?

8 A. No, sir.

9 Q. Incidentally, this occurrence that -- withdrawn.

10 You appeared first on January 7, 1995 in response

11 to a phone call you received; is that correct?

12 A. It was, there were two of us, myself and my

13 partner.

14 Q. Now, sir prior to the time that you appeared you

15 have no idea what happened or didn't happen at the Dona

16 Josefa apartment, isn't that a fair statement?

17 A. We arrived there when we got the call.

18 Q. Sir, after you completed your duties at or around

19 the Dona Josefa on January 7, 1995, until the time you

20 boarded the airplane to come to the United States did you

21 sit down with any high-ranking Philippine National Police

22 Officers and discuss what occurred at the Dona Josefa

23 apartments?

24 A. No, sir.

25 Q. So to the best of your knowledge between January

1359

1 7, 1995, and the moment you boarded the airplane to come to

2 the United States in June of 1996 no higher-ups in the

3 Philippine National Police Department gave you any

4 instructions or special instructions on what to say in this

5 courtroom?

6 A. I don't remember anything like that that

7 happened.

8 Q. Well, if it happened, would you remember it, sir?

9 A. I don't remember anything, that's why I say that.

10 Q. Now, sir, on January 7, 1995, you indeed

11 received, according to your testimony, special instructions

12 with respect to what happened in this case; is that correct?


14 Q. Inspector Cruz told you to lie in your official

15 report, isn't that correct?

16 A. He told me what to write.

17 Q. Is what you wrote the truth?

18 A. There's one portion that is not right.

19 Q. We'll get into the specifics of the report later,

20 sir.

21 The fact of the matter is, Inspector Cruz told

22 you to put information in the report that was not true,


24 A. He asked me to, he asked me to add some items

25 that were not true.

1360

1 Q. Now, sir, are you personally aware of any other

2 members of the Philippine National Police Department who

3 were also given special instructions to lie in this case?


5 THE COURT: No, I'll let him answer it. Go

6 ahead.

7 A. Who would lie?

8 Q. Well, you did, didn't you?

9 A. What he told me was, what happened was he told me

10 to add the certain portion to my report.

11 Q. And what you added was not true, isn't that

12 correct?


14 Q. So if it's not true then it's a lie, isn't that

15 correct?

16 A. That portion that was added.

17 Q. Sir, are you aware of any other member of the

18 Philippine National Police Department who was asked to do

19 the same things you had done by higher-ups?


21 Q. Now, sir, by putting untrue information in the

22 report you committed a crime under Philippine law, isn't

23 that correct?

24 A. That is possible, sir.

25 Q. Well, you're familiar with the revised penal code

1361

1 of the Philippines, aren't you?

2 A. Yes, sir.

3 Q. And you're also aware of your oath of office,

4 aren't you?

5 A. What particular thing did I swear to?

6 Q. Sir, you did take an oath of office to become a

7 police officer, did you not?

8 A. There is, sir.

9 Q. And among the things that your oath requires that

10 you enforce the laws, isn't that correct?


12 Q. To protect all people in the Philippines,

13 correct?


15 Q. You're to file truthful reports, isn't that

16 correct?


18 Q. And not to lie about what you observed or saw or

19 did, isn't that correct?

20 A. What particular thing are you referring to, sir?

21 Q. Didn't you lie in your report?

22 A. I was ordered to add that portion to my report.

23 Q. Is there a special provision in the revised penal

24 code of the Philippines or the Constitution of the

25 Philippines that says when you get an order from a higher-up

1362

1 to lie that it's okay to do so?

2 A. I am not a lawyer so that I don't know these

3 higher revised penal code of the Philippines by heart.

4 Q. You've been a cop for over twenty years, haven't

5 you?


7 Q. Is this the first time in twenty years --

8 withdrawn.

9 Have you ever received any special instructions

10 prior to this case to lie in a report?

11 A. In this particular instance.

12 Q. You knew that when you wrote that report if in

13 fact it's not true that you were doing something that was

14 wrong, isn't that right?

15 A. I was ordered by my chief to write that.

16 Q. And when you say, your chief, you're talking

17 about Inspector Cruz?


19 Q. Well, did you go to the Director General

20 Sarmiento and tell him, I was asked to fill a false report?

21 A. No, sir.

22 Q. Did you go to any higher ranking authority in the

23 Philippine National Police and say, my inspector, Mike Cruz,

24 made me file a false report?

25 A. No, sir.

1363

1 Q. Did you contact anybody in the Philippine

2 government and say, my immediate superior, Inspector Mike

3 Cruz, had me lie in a report that I filed on January 7,

4 1995?

5 A. No, sir.

6 Q. Is the first time that you mentioned this

7 allegedly false report June 17, 1996?

8 A. Could you please repeat the question?

9 Q. Would I be correct in assuming that the first

10 time you mentioned to any law enforcement official that your

11 report was allegedly false was on or around June 17, 1996?

12 A. I told them when I got here to the United States

13 because I wanted my conscience to be free and clean when I

14 faced the Court.

15 Q. When you prepared that report in January of 1995,

16 you prepared that for what you believed to be a case that

17 was going to be tried in the Philippines; is that right?

18 A. I don't know, sir. All I was concerned with was

19 to make a report about that particular incident.

20 Q. You prepared the report as a police officer as

21 part of an investigation, isn't that right?


23 Q. And you prepared the report as a police officer,

24 the prospect of a trial to happen sometime thereafter, isn't

25 that correct?

1364

1 A. I was told to make the report in this manner and

2 to file it in the office.

3 Q. And you were told to make a police report by your

4 police superior, correct?


6 THE COURT: Yes.

7 Q. The purpose of the report was to create a record

8 as to the investigation you were conducting, isn't that

9 right?


11 THE COURT: I think we've been through it. But

12 I'll let him do it again. Go ahead, answer the question.

13 Read the question back, please.

14 (Record read)

15 A. It's possible, sir.

16 Q. Now, as to the events of January 7, 1995, if I

17 understand your testimony correctly, you were in your

18 office, bomb squad office, and you receive a phone call

19 approximately 1:30 a.m.; is that correct?


21 Q. And the phone call is for from an individual

22 named Fariscal. Is that correct?


24 Q. And she's a senior inspector in the Philippine

25 National Police Department, correct?

1365


2 Q. Had you known her prior to January 7, 1995?

3 A. Not personally, but I know that she is an

4 official of the western police district.

5 Q. And as a result of the conversation you learn

6 that there was a bomb supposed to have been found somewhere

7 in the Malate district of the Philippines of Manilla,

8 correct?


10 THE COURT: No, I'll permit it, go ahead.

11 A. What I was told is that there they were

12 requesting EOD police assistance.

13 Q. Say that again?

14 A. What I was told was that they were requesting EOD

15 police assistance.

16 Q. Did you ask why?

17 A. The instructions was that we should head towards

18 police station 9.

19 Q. Sir, you get a phone call at your bomb squad

20 office from a senior inspector at about 1:30 a.m., correct?


22 Q. Is it your testimony you never seek to learn

23 during the course of that phone call the subject matter as

24 to why you're responding to that phone call?

25 MR. GREENFIELD: I'll repeat the question.

1366

1 THE COURT: Don't repeat it. Redo it.

2 MR. GREENFIELD: Redo it. That's even better.

3 Q. You speak with Senior Inspector Fariscal,

4 correct?

5 A. Yes, sir.

6 Q. She called your office, the bomb squad office,

7 correct?

8 A. Yes, sir.

9 Q. She asked you to respond to somewhere in Malate,


11 A. They told us to respond to something that

12 happened towards station 9.

13 Q. Did you ascertain or try to ascertain from

14 Inspector Fariscal what you were going to respond to?

15 A. What Capt. Fariscal told us was you should all

16 come here because I have something for you to look at.

17 Q. She told you that she had what she believed to be

18 a pipe bomb, isn't that correct?

19 A. That's not true, sir.

20 Q. She told you she had what she believed to be a

21 suspected bomb, isn't that correct?

22 A. She didn't say anything like that to me.

23 Q. She said she had something that you should look

24 at?

25 A. What she called for was what we call an EOD

1367

1 police assistance.

2 Q. And EOD meaning?

3 A. (In English) Explosive ordnance disposal.

4 THE INTERPRETER: Explosive ordnance disposal.

5 Q. Did you try to ascertain before you responded

6 what that might be?

7 A. When we receive such a call we just go and

8 respond.

9 Q. But wouldn't it be important to know what

10 equipment to take with you if the bomb had already exploded,

11 or if it was a potential bomb wouldn't your response be

12 different?

13 A. Before we respond to any incident we already have

14 our equipment ready and we just take this equipment.

15 Q. And you're also told during the course of the

16 phone call that the location was 711 Quirino Avenue, isn't

17 that right?

18 A. The instruction given to us was to go to Station

19 9.

20 Q. Now, sir, isn't it a fact that not only you and

21 your partner went, but Inspector Cruz went with you to

22 Station 9?

23 THE INTERPRETER: Excuse me, sir, could I have

24 that question read again?

25 THE COURT: Sure.

1368

1 (Record read)

2 A. Inspector Cruz wasn't there yet.

3 Q. Isn't it a fact that in your report of January 7,

4 1995, you said Inspector Cruz responded with you and your

5 partner to the 9th precinct?

6 A. May I please see that report again, sir?

7 THE COURT: Right here.

8 Q. You look at the first paragraph, last sentence,

9 sir.

10 THE WITNESS: Should I read this?

11 Q. Read it to yourself.

12 A. I included Inspector Cruz's name.

13 Q. Did he order you to include his name in the

14 report?

15 A. Because I talked to him, because I called him, I

16 included his name.

17 Q. The fact of the matter is when you prepared the

18 report on January 7, 1995, you said yourself, Inspector Cruz

19 and Mr. Mandigma all went to the 9th police station, isn't

20 that correct?

21 A. It was just Sgt. Mandigma and I who went to the

22 precinct.

23 Q. So are you saying that part of your report is not

24 correct?

25 A. See I included his name also, because he also

1369

1 went to the apartment when the call was made.

2 Q. That's not what the report says, is it? The fact

3 of the matter is the report says that you responded with

4 Cruz and Mandigma immediately after receiving the phone

5 call.


7 THE COURT: Getting into what the report says.

8 MR. GREENFIELD: And I'll offer it, your Honor.

9 MR. SNELL: No objection in that case.

10 THE COURT: 3522B is received.

11 (Government Exhibit 3522B received in evidence)

12 Q. Now, sir, does your report not state, the

13 undersigned together with Police Inspector Jose L. Cruz and

14 Senior Police Officer Armisticio A. Mandigma immediately

15 responded?

16 A. To my understanding he also responded to this

17 call at the Josefa.

18 Q. Sir, the first paragraph reads as follows,

19 doesn't it?

20 At or about January 7, 1:30 a.m. Senior Inspector

21 Aida Fariscal of police station number 9 western police

22 district, PNP, called up this office requesting EOD

23 assistance regarding an alleged bomb. The undersigned

24 together with P Inspector Jose L. Cruz Jr, and SPO4,

25 Armisticio A. Mandigma immediately responded.

1370

1 Is that what your first paragraph says?

2 A. Yes, sir.

3 Q. The fact is he did respond with you and Mandigma,

4 isn't that a fact?

5 A. First it was just the two of us.

6 Q. When for the first time is it that Cruz goes to

7 the 9th precinct?



10 A. What I understand is that he went straight to

11 Josefa when I called him.

12 Q. But your report indicates otherwise, is that what

13 you're saying?

14 A. It was only the two of us with myself and Sgt.

15 Mandigma who went to Station 9 originally.

16 Q. So then the first paragraph in your report is

17 incorrect, is that what you're saying?

18 A. The name of Mike Cruz.

19 Q. Well, that fact is incorrect, is that what you're

20 saying?

21 A. That part is wrong.

22 Q. Now, sir, when you arrive at the 9th precinct you

23 and you say Mandigma, and, I assume, you meet Senior

24 Inspector Fariscal there, is that correct?

25 A. Yes, she was there waiting for us.

1371

1 Q. And the fact of the matter is she had a briefcase

2 with her, isn't that right?

3 A. No, sir.

4 Q. The fact of the matter is she had a brown Corolla

5 attache case with her, isn't that correct?

6 A. No, sir, she did not.

7 Q. Does your report indicate that at the 9th police

8 station Senior Inspector Fariscal turned over to you the

9 brown attache case?

10 A. How, sir?

11 Q. Third paragraph. Does your report indicate the

12 brown attache case was turned over to the EOD operatives by

13 Senior Inspector A. Fariscal for inspection investigation.

14 That's how.

15 A. This is what Lt. Mike Cruz asked me to insert.

16 Q. That part he asked you to insert also then? Is

17 that where he told you to put it?

18 A. This is what he asked me insert.

19 Q. He told you on January 7th to say that Senior

20 Inspector Fariscal gave you an attache case at the police

21 station?

22 A. He told me to write this down in the report.

23 Q. Well, I'm asking you, is what I just said what

24 you wrote down?

25 A. That's what Lt. Mike Cruz told me to write.

1372

1 Q. Did you say, hey, Mike, this is not what

2 happened. I can't put this down.

3 Did you say that to him?

4 A. He said do that, there are higher orders.

5 Q. When did he tell you to do this?

6 A. After all the incidents had happened we were in

7 the office waiting for further instructions.

8 Q. 1 o'clock in the afternoon? 11 o'clock in the

9 afternoon? What time? When did he tell you this?

10 A. Maybe after we had lunch.

11 Q. How long did it take you to compile this entire

12 report, these two pages?

13 A. I wasn't looking at my watch so when I finished

14 it, I finished it.

15 Q. Now, sir, did you also say in your report that

16 the attache case --

17 THE COURT: Are you moving on to something?

18 MR. GREENFIELD: This is the last question in

19 this area, your Honor.

20 THE COURT: All right.

21 MR. GREENFIELD: With respect -- I'm sorry,

22 Ms. Interpreter.

23 THE INTERPRETER: One moment.

24 Q. With respect to the attache case did you also

25 indicate in your report that it was remotely opened at the

1373

1 9th police station by yourself?

2 A. He told me to write that in my report.

3 Q. So that's another lie he told you to put in your

4 report, is that correct?

5 A. He told me to do this, so that's what I did.

6 MR. GREENFIELD: You want to break at this point,

7 your Honor?

8 THE COURT: Okay, ladies and gentlemen.

9 (Jury not present)

10 (Recess)



13 interpreter.



16 Q. Sir, when we broke I was asking you questions

17 with respect to what occurred in the 9th precinct, do you

18 recall that?

19 A. What's your question, sir?

20 Q. I was just trying to put you in the point of time

21 where we were when we broke, that's all it was.

22 Now, as I understand your testimony when it

23 indicates in your report that Inspector Fariscal or Fariscal

24 turned over the attache case at the 9th police station that

25 that's not true according to your present testimony; is that

1374

1 right?

2 A. That's true, sir.

3 Q. And Inspector Cruz told you to put in the report

4 that Fariscal gave you the attache case at the 9th precinct?

5 A. Yes, that was the order.

6 Q. But didn't you testify earlier this morning that

7 Inspector Cruz told you to say you found it outside the

8 apartment door?

9 A. I'm getting confused by your question because

10 it's not relevant to what's down here.

11 Q. No, I'm getting confused by your answer.

12 Sir, did you not testify sometime during the

13 course of your stay on this witness stand that you told

14 Special Agent Pellegrino in March of 1995 that you found the

15 attache case in front of apartment 603 at the Dona Josefa

16 apartments?

17 A. No, sir, I did not find the attache case myself.

18 The report, that portion of the report that I was ordered to

19 write said something else.

20 Q. My question to you is, did you ever tell Special

21 Agent Pellegrino that you personally found the attache case

22 in front of the apartment before you entered it?

23 A. I don't remember saying anything like that to

24 him.

25 Q. We'll get to that.

1375

1 Sir, the report also indicates that the case was

2 remotely opened. What does that mean?

3 A. I was told to write that in the report.

4 Q. What does remotely opened mean?

5 A. That's what I was told to put down in the report.

6 Q. As a bomb expert what does the term remotely

7 opened mean?

8 A. Sir, are you pertaining to the terminology we use

9 in the bomb disposal unit?

10 Q. I'm referring to the words you used in your

11 report.

12 A. Yes, that's what Lt. Mike Cruz told me to write

13 down.

14 Q. Well, what does it mean?

15 A. That's why I'm asking you also, sir, in turn that

16 are you questioning the terminology we use in the bomb

17 disposal unit?

18 Q. Yes.

19 A. When we say remotely opened we mean that you are

20 the person observing the object is far in distance from the

21 actual object, but you can see it.

22 Q. You open it with your toe, or do you open it with

23 some sort of equipment? How do you open it?

24 A. We have instruments.

25 Q. So when Inspector Cruz told you to say that

1376

1 Fariscal turned over the attache case and you remotely

2 opened it, it was to create the impression that the

3 briefcase was opened in the vicinity of the 9th police

4 station in a remote fashion; is that correct?

5 A. That's what they told me to write down in the

6 report.

7 Q. And that's a lie.

8 A. That's not true.

9 Q. That's what you say is not true today, correct?

10 A. Yes, what's written down in the report.

11 Q. Sir, did you also indicate that after you

12 remotely opened the attache case you found some items in

13 this attache case at the 9th police station?

14 A. That's what Lt. Mike Cruz told me to write down

15 in the report.

16 Q. So whatever is listed in this report as to what

17 was found in the briefcase when you opened it, is also a

18 lie; is that right?


20 THE COURT: No.

21 A. The question is rather long for me. I can't

22 follow you.

23 Q. You want me to break it down for you?

24 A. Yes, sir.

25 Q. You say in your report a briefcase was opened in

1377

1 the 9th precinct, correct?

2 A. Yes, sir, that's what he told me to write.

3 Q. The fact as you're stating today is that no

4 briefcase was opened in the 9th precinct, correct?

5 A. That's right, sir.

6 Q. So whatever you have listed as being found in the

7 9th precinct in this report could not have happened

8 according to your testimony today, isn't that right?

9 A. I was told to write these items down in the

10 report.

11 Q. Were you also told to say the same thing in every

12 answer by any higher authority?

13 A. I didn't speak to them.

14 Q. Now, sir, you didn't open a briefcase at the 9th

15 precinct, correct?

16 A. No, sir.

17 Q. So you didn't find anything in the 9th precinct,


19 A. We spoke to Capt. Fariscal there.

20 Q. There was no briefcase to find anything in the

21 9th precinct, isn't that your testimony?


23 MR. GREENFIELD: I'll withdraw the question.

24 Q. Was there a briefcase in the 9th precinct?

25 A. No, sir.

1378

1 Q. Was there anything in a briefcase that you found

2 at the 9th precinct?

3 A. You say there is no briefcase.

4 Q. Does your report indicate you found something in

5 the briefcase in the 9th precinct?


7 THE COURT: The report can speak for itself.

8 Next question.

9 Q. Sir, at the 9th precinct did you find a piece of

10 writing pad with numerical inscriptions on it?

11 A. Like I was saying, sir, I was told to include

12 this in my report.

13 Q. And each and every of these items were not

14 discovered at the 9th precinct, correct?


16 Q. And each and every item that are reflected in

17 this report you were told to lie about by a higher

18 authority?


20 THE COURT: I think we've been through that.

21 Next.

22 Q. Now, sir, does your report also indicate that

23 after you received this briefcase and after you remotely

24 opened it, that you took it someplace?

25 A. The question's confusing to me, sir.

1379

1 Q. Look in your report, the last paragraph, sir.

2 THE COURT: On the first page.

3 A. I was instructed by Lt. Mike Cruz to include this

4 in my report.

5 Q. And is it your testimony now that everything

6 that's contained in this last full paragraph is not true?

7 A. I was told to include this in the report.

8 Q. And my question to you is, everything in this

9 report is not true, is that correct?

10 A. I was given this list to copy for this report.

11 Q. Did you also say that you took the pipe bomb

12 directly from the precinct to the safe disposal area?



15 Did you say the said pipe bomb was brought to a

16 safe disposal area where it was -- I assume it's supposed to

17 be -- where it was rendered safe?

18 THE WITNESS: When we were given the order to

19 render safe the suspicious device we were coming from that

20 apartment itself.

21 Q. Does the report not indicate --

22 I'm sorry, your Honor. Were you going to ask a

23 question?


25 Q. Does the report not indicate that after you

1380

1 opened the briefcase at the 9th precinct you then went to

2 the safe disposal area.


4 Does the report say the said pipe bomb was

5 brought to the safe disposal area where it was rendered

6 safe?

7 THE WITNESS: Yes, we did that after we got the

8 instruction.

9 Q. Sir, when you prepare a report is that report

10 prepared in a chronological order of occurrence?

11 A. What report are you talking about now?

12 Q. Any report that you prepare as a police officer.

13 A. Yes, sir, in order.

14 Q. Now, sir, in the first paragraph of this exhibit

15 you say you received a phone call, correct?

16 A. Yes, sir.

17 Q. The second paragraph says you go directly to the

18 9th police station, correct?

19 A. Yes, sir.

20 Q. The third paragraph says that an attache case was

21 turned over to you at the 9th precinct by Inspector

22 Fariscal, correct?


24 Q. Does the third paragraph indicate that Inspector

25 Fariscal turned over to you a briefcase?

1381


2 THE COURT: No, I'll permit that.

3 A. That's what I was told to write in the report.

4 Q. And does the next paragraph indicate you went to

5 a safe disposal area where it was rendered safe?

6 A. Yes, I was told to write that in the report.

7 Q. Now, is it fair to state that nowhere in

8 paragraphs 1, 2, 3 or 4 does it indicate you ever went to

9 the Dona Josefa apartments?

10 A. What are you pertaining to, sir?

11 Q. Your report, sir.

12 A. I was told to insert this portion in my report.

13 Q. So what you're saying is that this report really

14 is a fabrication, that there is no basis to believe what's

15 in this report?

16 Is that what you're saying?


18 THE COURT: Yes. He said what he said. Next

19 question.

20 Q. Now, sir, you took the pipe bomb, you say was a

21 pipe bomb to the safe disposal area, correct?

22 A. Sir, could you please clarify where I took that

23 pipe bomb from, because you maybe asking me again where that

24 pipe bomb came from.

25 THE COURT: No. You got a pipe bomb on January

1382

1 7, 1995, right?

2 THE WITNESS: Yes, sir, yes, sir, at the

3 apartment.

4 THE COURT: Okay. That pipe bomb, did you take

5 to a safe disposal?

6 THE WITNESS: Yes, sir, after we received the

7 order.

8 Q. Who went with you?

9 A. To what, sir?

10 THE COURT: To the safe disposal area.

11 THE WITNESS: We were three. It was Lt. Mike

12 Cruz, Sgt. Mandigma, and myself.

13 Q. Now, when you get to the safe disposal area, the

14 three of you, what did you do to render this alleged pipe

15 bomb safe?

16 A. We utilized an instrument we call the EOD

17 equipment. It's a gift from the United States government.

18 We call it a disrupter or a water cannon.

19 Q. Did you explode the bomb?

20 A. First what we wanted to do was to remove the caps

21 of this alleged pipe bomb.

22 Q. Did you do that?

23 A. Yes, sir.

24 Q. And you did that by means of this water cannon

25 that you described?

1383

1 A. Yes, sir.

2 Q. Did the bomb explode?

3 A. No, sir.

4 Q. Have you seen that alleged bomb since that day?

5 A. After we rendered safe this pipe bomb it was

6 taken back to the office, and Lt. Mike Cruz took care of

7 that.

8 Q. Now, sir, it's your testimony that nothing in

9 this pipe bomb exploded, correct?

10 A. Sir, do you mean when we were trying to render it

11 safe?

12 Q. Yes.

13 A. It didn't explode, sir, because when the water

14 cannon bullet hit the caps, the cap flew away, and the

15 contents flew out, too.

16 Q. Were the contents recovered?

17 A. Yes, it was recovered, sir.

18 Q. Now, sir, did you see the contents?

19 A. Yes, sir, I saw it.

20 Q. Sir, the list that's on your report, is that what

21 was allegedly in the pipe bomb?

22 A. No, sir.

23 Q. That which is on this list was not in the pipe

24 bomb, is that what you're saying?

25 A. I was given this list to include in my report.

1384

1 Q. Was a Casio watch found in that pipe bomb?

2 A. No, sir.

3 Q. Yet on January 7, 1995, Inspector Cruz told you

4 to say that a Casio DBC-62 watch was found in that pipe

5 bomb?


7 Q. And the same is true for two Everready 9 volt

8 batteries?

9 A. Like I said, this list was handed to me so that I

10 could insert it in my report.

11 Q. And there's no truth to that list is your

12 testimony?

13 A. Like I said, this was given to me by Lt. Mike

14 Cruz to include in my report.

15 Q. And as far as you know he was told by higher

16 authorities within the Philippine National Police to include

17 these items in your report?


19 THE COURT: Rephrase it a little bit.

20 Q. Is it your testimony that Mike Cruz told you that

21 higher authorities told him to include --


23 THE COURT: No.

24 Q. -- these items in your report?

25 THE COURT: I'll permit that.

1385

1 A. What he told me was this.

2 Q. Now, sir, how long were you at the safe disposal

3 area rendering this bomb safe?

4 A. When we arrived at the site we got our equipment

5 ready. We fired the water cannon and when the caps flew

6 off. After that we gathered all the ingredients there and

7 we just went back to the office.

8 Q. Now, sir, to the best of your recollection --

9 obviously, I'm not asking you to give the exact time -- how

10 long does it take to go from the house in Malate where you

11 say the bomb was found, to the, I believe you called the

12 reclamation area, the safe disposal area approximately?

13 A. Sir, are you asking me about the time it takes

14 for us to travel from that area to that area at that time or

15 any time?

16 Q. That night.

17 A. It wasn't night, sir.

18 Q. I understand that. How long did it take to go

19 from 711 Quirino Avenue where you say you were to the bomb,

20 whatever you call it area, safe bomb area?

21 A. I believe approximately 15 minutes because there

22 was hardly any traffic.

23 Q. And how long were you there that evening at the

24 safe disposal area?

25 A. We didn't go there at night. It was almost dawn.

1386

1 THE COURT: Well --

2 Q. What time did you leave for the safe disposal

3 area?

4 A. I didn't look at my watch but what I know was the

5 morning light was coming.

6 Q. What time did you arrive at the apartment house?

7 A. It didn't take very long. We went to, from

8 precinct 9. Then we just went straight there, so it didn't

9 really take a look time.

10 Q. Would it be about 2 a.m. that you arrived at the

11 711 Quirino Avenue address?

12 A. Maybe not even 2 o'clock, because I got the call

13 from the police station about 1:30, and we made haste.

14 Q. Once you arrived in the apartment, say it's 1:45

15 a.m., once you arrive there, how long are you there before

16 you leave for the safe disposal area?

17 A. I can't really tell you 'cause I didn't know what

18 the time was. We were waiting for instructions.

19 Q. But your recollection now is it's almost dawn

20 when you leave the safe disposal area; is that correct?

21 A. Sir, I would just like to clarify. Leaving that

22 area or going to that area?

23 Q. I'll help you along. You testified a few moments

24 ago that there came a time when yourself, Inspector Cruz,

25 and the other gentleman, Mr. Mandigma, leave the apartment

1387

1 to render what you call the pipe bomb safe. Remember that?

2 A. Yes, sir, it was almost dawn.

3 Q. Approximately how long are you away from the

4 apartment before you return?

5 A. What instance, sir?

6 Q. The first time you're in the apartment, sir,

7 would it be fair to state you say you found the pipe bomb?

8 A. I'm getting very confused by your question

9 because you're pertaining to so many different places at the

10 same time.

11 Q. You want to take a rest?

12 A. No, sir.

13 MR. GREENFIELD: Your Honor, might I suggest if

14 the witness is a bit confused that we continue this

15 tomorrow?

16 THE COURT: Yes. I think we can. All right,

17 ladies and gentlemen, you'll get a little early break

18 tonight.


20

21

22

23

24

25

1388


2 present)

3 MR. GREENFIELD: I'd just like to say I would

4 like to invoke the rule in Pliny the Elder, maybe a half

5 hour, maybe a little more.

6 THE COURT: I assume you guys will want a

7 redirect?

8 MR. SNELL: Not so far, your Honor.

9 THE COURT: Okay. Have somebody lined up

10 tomorrow.

11 (Adjourned to 10:00 a.m., Thursday, January 27,

12 1996)

13

14

15

16

17

18

19

20

21

22

23

24

25

1390


8 June 27, 1996 10:00 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney


22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIA ISMAIL, HASSAM MOAWAD, MIRA RIVERA

24

25

1391


2 THE COURT: Yes, Mr. Udell, you're standing up.

3 I assume you've got something to say.

4 MR. UDELL: Your Honor, before we proceed may I

5 make a slight application specifically with regard to the

6 witness on the stand. There is another person who has been

7 mentioned an awful lot during this witness's testimony. His

8 name is Lt. Mike Cruz. Evidently he's here. The indication

9 is that the government will not call him. But basically

10 during the entire time that Mr. Ramilo has testified the

11 essence of his testimony is one answer: I did everything

12 because Lt. Mike Cruz told me to do so. It's almost a

13 Nuremberg answer.

14 I think it's within the confines of Brady for us,

15 before this witness leaves the stand, to be given a chance

16 to see the 3500 material with regard to Mike Cruz.

17 THE COURT: Did you ever read 3500?

18 MR. UDELL: Yes.

19 THE COURT: Then you know it's not. You can't do

20 it. What does the 3500 say?

21 MR. UDELL: Ed I know what 3500 --

22 THE COURT: What does 3500 say?

23 MR. UDELL: It says on 3500 that we are entitled

24 to witnesses once they --

25 THE COURT: No, it does not. It says that no

1392

1 court shall ever order to turn over any documents concerning

2 a witness's testimony until after the witness has testified.

3 MR. UDELL: I'm making this request under Brady,

4 your Honor. I'm referring to the 3500 material, but I'm

5 making the request under Brady. If your Honor feels that we

6 should not get it directly, I would ask that the Court ask

7 that the government provide this information to you and you

8 peruse it before this witness leaves the stand. Again,

9 where is the harm?

10 THE COURT: This is Brady?

11 MR. UDELL: It could be. It would seem to be.

12 We haven't seen it.

13 THE COURT: Wait a minute. You're just taking a

14 shot in the dark that it's Brady. You know it's like

15 standing up and saying, oh, -- forget it. No.

16 MR. UDELL: There is a basis for the request.

17 The request --

18 THE COURT: There is a basis for the request as

19 to what? As to 3500 or Brady, or just standing up and

20 making a request and saying there is a basis to it?

21 MR. UDELL: The 3500 could be Brady, this is what

22 I'm saying. I have not seen it so I can not represent what

23 it is, but all I know is every answer this witness gives is:

24 I did everything I did, I committed falsehoods, I put down

25 made false reports, I said things that were not true and I

1393

1 did it because Mike Cruz told me to do it, and I only

2 stopped doing it because Mike Cruz told me to stop doing it

3 or the two of us discussed it. It may very well be that

4 there are things in information provided to the government

5 by Mike Cruz which are not consistent --

6 THE COURT: What you are asking for, whether you

7 know it or not, is, I would like to have all the 3500

8 material of all the people so that I can make up a defense,

9 and the answer to that is no. That's why Congress wrote it

10 exactly the way they did. The answer is no. Your

11 application is denied. Somebody else wanted to do

12 something?

13 MR. GREENFIELD: Yes, your Honor. Mr. Garcia

14 informed me yesterday that he will be offering certain still

15 photos taken of the videotape that was put into evidence the

16 day before yesterday, and among the still photos will be out

17 takes of, I believe, a photo of the Pope and Bibles, garb,

18 things of that sort. And, also, I think, and I may be

19 wrong, Mr. Garcia will correct me if I am, they intend to

20 offer the photos, the Bibles, the garb as evidence, also. I

21 would object for the reasons stated before, and the reason I

22 made my severance motion before throughout the trial. So we

23 thought we'd bring it to the Court's attention now obviously

24 rather than when the witness is on the stand.

25 THE COURT: First of all, I don't think

1394

1 Mr. Garcia is examining the witness. I think it was

2 Mr. Snell.

3 MR. GREENFIELD: No, it's the next witness.

4 THE COURT: Don't bother. The "don't bother" is

5 directed not to you, but to him.

6 MR. GARCIA: Yes, your Honor.


8 THE COURT: Get the jury and the witness in.

9 (Jury present)


11 interpreter.



14 Q. Sir, you testified over the past few days that at

15 a point you left the Dona Josefa building with what you

16 alleged to be a pipe bomb and you went to an area and

17 defused it or rendered it safe. Is that a fair statement on

18 my part?


20 Q. Now, when you leave the apartment with that

21 alleged bomb who was in the apartment?

22 A. Excuse me, inside or outside?

23 Q. In the apartment.

24 A. To my knowledge when we left everybody left the

25 apartment because it was the instruction of Gen. Canson for

1395 1 everybody to leave.

2 Q. And this is approximately dawn?

3 A. Yes, sir.

4 Q. Now, the person who you say you gave the computer

5 that you say you found, was he in the apartment when you

6 left at or about dawn of the morning of January 7, 1995?


8 Q. You told this jury previously that you found the

9 computer in the apartment?


11 Q. And after you found the computer what do you say

12 happened to it?

13 A. When Gen. Canson and the other Generals arrived I

14 pointed out to them that I had found a computer.

15 Q. And what happened to that -- what time did the

16 Generals arrive by the way?

17 A. I don't know exactly what time that was, but

18 maybe I can say that approximately from the time we arrived

19 at the apartment it could be an hour or so after.

20 Q. Now, you say that after you spoke to the General

21 that you gave the computer to somebody; is that correct?

22 A. It was not I who gave the computer to someone.

23 Q. Well, did you see who it was given to?

24 A. Gen. Canson ordered one of his aides to take the

25 computer and take it outside the compartment.

1396 1 Q. Do you know who that person is?

2 A. No, sir, because he was in plainclothes.

3 Q. Was that person on the videotape that we viewed

4 earlier the other day?

5 A. I don't really know, sir.

6 Q. Well, you saw the videotape the other day. Do

7 you recall seeing him on the tape?

8 A. He wasn't there, sir.

9 Q. Now, sir, with respect to Defendant Shah's

10 Exhibit D in evidence, do you have that before you now, sir.

11 THE COURT: I don't think he does. I have a

12 copy. (Handed to witness)

13 Q. Do you have that now, sir?

14 A. Yes, this is my report.

15 Q. Will you turn to the second page. The second

16 page of Defendant's D in evidence deals with what occurred

17 in room 603 other than your alleged discovery of the pipe

18 bomb?

19 A. What are you trying to, what are you trying to

20 say, sir?

21 Q. I'm not trying to say anything. I'm asking you a

22 question.

23 A. I don't, I didn't catch your question, sir.

24 MR. GREENFIELD: Repeat the question, please.

25 (Record read)

1397 1 A. I didn't write it there.

2 Q. Does that paragraph, the first and only paragraph

3 on page 2, deal with your observations in room 603?


5 Q. Is there one word in there about you discovering

6 a computer?

7 A. No, sir.

8 Q. And you wrote this within hours of the time that

9 you were in room 603 allegedly?

10 A. Like I said, this is what they told me to write.

11 Q. Did Inspector Mike Cruz tell you, don't put the

12 computer into your report?

13 A. This is what he told me to write.

14 Q. Does Mike Cruz know how to make a report?

15 A. Yes, to my knowledge he does, sir.

16 Q. Did he make a report on January 7, 1995?


18 Q. Now, there came a time when you returned to the

19 apartment later that day after you had completed your report

20 to help execute a search warrant. Is that a fair statement

21 on my part?


23 Q. Now, when you entered the apartment was it in the

24 same condition as it was when you left it earlier that day

25 around dawn?

1398 1 A. It seems to me so.

2 Q. Well, the video that you saw the other day, does

3 that accurately depict the apartment the way it was when you

4 left it at dawn earlier that day?

5 A. It seems like that, sir.

6 Q. Now, sir, other than the computer and the bag

7 that you say you found, were there any other components of

8 the computer that you say you saw in the apartment on

9 January 7, 1995?

10 A. Because I'm not a very knowledgeable person

11 regarding the computer we just listed the other items that

12 we saw in the apartment.

13 Q. Well, you didn't list the computer anyway, did

14 you?

15 A. I don't know if Sgt. Gomez listed anything like

16 that.

17 Q. I'm not talking about Gomez. I'm talking about

18 you. Did you list it anywhere?

19 A. No, sir, because I'm not a person in charge of

20 making the inventory.

21 Q. Sir, you testified you were interviewed by the

22 FBI a number of times in 1995; is that correct?


24 Q. And you were interviewed for the first time by an

25 FBI Agent -- withdrawn.

1399 1 The first time you were interviewed by an FBI

2 Agent was by Special Agent Pellegrino; is that correct?

3 A. Yes, he was, it was with Special Agent Frank

4 Pellegrino.

5 Q. And did that interview occur on March 1, 1995?

6 A. I don't remember the date, sir.

7 MR. GREENFIELD: Your Honor, if the witness could

8 be given a copy of 3522A, please.

9 THE COURT: Sure.

10 (Handed to witness)

11 Q. Sir, I direct your attention to the first

12 sentence in 3522A. If you'd read that to yourself and see

13 if that refreshes your recollection as to the date you were

14 interviewed by Special Agent Pellegrino.

15 A. Like I said, I just don't really recall the date

16 because I'm not a person who made this report, sir.

17 Q. And that which is in front of you does not

18 refresh your recollection after reading it as to what the

19 date was of your interview with Special Agent Pellegrino?

20 Is that what you're saying?

21 A. Like I had previously said, sir, I can not

22 correctly recall when the interview took place, but I can

23 say that, yes, we were interviewed by Special Agent Frank

24 Pellegrino, FBI Agent, at the US Embassy. He invited --

25 Q. I'm sorry.

1400 1 A. We were invited to the US Embassy, sir.

2 Q. Of course you were invited.

3 Did you go to Gen. Ebdane to seek his okay before

4 you accepted the invitation?

5 A. The person who advised us that we had been

6 invited and that we were going to the embassy of the United

7 States was Lt. Mike Cruz.

8 Q. And he told you that higher-ups said that it was

9 okay to go --


11 Q. -- to the embassy?

12 THE COURT: No, I'll permit it.

13 A. As our, since he was our chief he informed us

14 that we were going to the US Embassy.

15 Q. Sir, in the US Embassy when you first met Special

16 Agent Pellegrino did you tell him that you found the attache

17 case which allegedly contained the pipe bomb in front of the

18 door to apartment 603?

19 A. It seems to me that the question is rather

20 confusing.

21 THE COURT: Break it down.

22 Q. Sir, you were interviewed by Pellegrino in the

23 embassy, correct -- Special Agent, I'm sorry.


25 Q. He asked you questions with respect to what

1401 1 occurred on January 7, 1995, correct?


3 Q. He asked you some questions which related to the

4 discovery of what you say was a pipe bomb; is that correct?


6 Q. Did he ask you questions as to where you found

7 that pipe bomb?

8 A. Then I stuck to what, to the report that I was

9 told to make.

10 Q. And did you tell him that you received --

11 withdrawn.

12 Did you tell him that Senior Inspector Fariscal

13 gave you the attache case at police station number 9?

14 A. Yes, that's right. I stuck to what was written

15 in the report.

16 Q. Isn't it a fact that you told him that you found

17 the attache case outside the apartment?

18 A. That's what I said, sir, that I stuck to what was

19 written in the report.

20 Q. In the report it's an entirely different story,



23 THE COURT: Yes.

24 Q. Your report says you turned over the attache case

25 at police station number 9?

1402 1 A. Yes, sir, that's why I stuck to the report.

2 Q. But yet you told Special Agent Pellegrino you

3 found the attache case outside the apartment?

4 A. Yes, sir, that's why I stuck to the report.

5 Q. But your answers are different both times, aren't

6 they?


8 Q. Do you mention Special Agent -- withdrawn.

9 You tell Special Agent Pellegrino that you turned

10 over the -- withdrawn.

11 Do you tell Special Agent Pellegrino that Senior

12 Inspector Fariscal turned over the attache case to you?

13 A. That's why I stuck to the report, sir.

14 Q. Do you tell Special Agent Pellegrino that once

15 you opened up the attache case outside the apartment you

16 proceeded to a safe area and disabled the pipe bomb.


18 THE COURT: No, he can ask.

19 A. That's why I stuck to the report, sir.

20 Q. So you told Special Agent Pellegrino you found

21 the alleged bomb in the suitcase, in the attache case

22 outside the apartment, and I went to a safe area to disable

23 the bomb.

24 Those are the first two things you did; is that

25 correct?

1403 1 A. That's why I stuck to the report, sir.

2 Q. Do you agree that what I just said is what you

3 told Special Agent Pellegrino?

4 A. That's why, sir, I'm saying to you that I stuck

5 with what was written on the report.

6 Q. What was written in the report -- withdrawn.

7 What was written in your report, sir, with

8 respect to the discovery of this alleged pipe bomb?

9 A. That's what I'm saying that Lt. Mike Cruz wrote,

10 ordered me to write certain items in my report.

11 Q. What did he tell you to write as to the discovery

12 of the pipe bomb?

13 A. That's why, sir, I followed what I was told to

14 write in the report.

15 MR. GREENFIELD: Your Honor, I would respectfully

16 ask the court to direct the witness to answer the question.

17 THE COURT: Yes. He didn't ask you how you got

18 there. He wants to know what did you write in the report.

19 THE WITNESS: What I wrote in my report is what

20 he told me to write in my report regarding the incident.

21 THE COURT: Do you remember it?

22 THE WITNESS: It's written in the report, sir.

23 THE COURT: I know that. Now, what did he tell

24 you to write in connection with finding the bomb?

25 THE WITNESS: You mean, sir, what Lt. Mike Cruz

1404 1 said?

2 THE COURT: Yes.

3 THE WITNESS: He asked me to write that the

4 attache case that contains the alleged pipe bomb was turned

5 over to me by Capt. Fariscal.

6 THE COURT: When you got to talk to Special Agent

7 Pellegrino did you tell him that Capt. Fariscal turned over

8 the pipe bomb to you?

9 THE WITNESS: Yes, sir.

10 THE COURT: Did you tell him that, or did you

11 tell him that you saw the attache case outside of the

12 apartment? You saw the attache case.

13 THE WITNESS: No, sir. I said that the attache

14 case was handed over to me.


16 Q. If Special Agent Pellegrino says that you said

17 something differently, would he be incorrect?


19 Q. Sir, who was your captain on January 7, 1995?

20 A. What do you mean, sir, by captain?

21 Q. Mike Cruz was your lieutenant.

22 A. That's right.

23 Q. There are no captains in the Philippine National

24 Police, are there?

25 A. When, sir?

1405 1 Q. In January 7, 1995.

2 A. What, what persons are you pertaining to, sir?

3 Q. I don't know. I don't live there.

4 A. And likewise, sir, I don't know whom you're

5 asking about.

6 Q. I'll be specific. You want me -- Mike Cruz is an

7 inspector who was your immediate superior, correct?


9 Q. On January 7, 1995, who was Mike Cruz's immediate

10 superior?

11 A. It was Major Angeles at that time.

12 Q. Was there any captain who was your superior in

13 the Philippine National Police on January 7, 1995?

14 A. You keep pertaining to the national police. The

15 national police covers the entire Philippines.

16 Q. All I want to cover is Manilla.

17 A. If you're pertaining just to the city of Manilla

18 that's the western police district command, sir.

19 Q. And I am pertaining to January 7, 1995, correct,

20 and pertaining to an incident that occurred allegedly at 711

21 Quirino Avenue, okay?

22 A. Okay, sir.

23 Q. I'm pertaining to your assignment in the bomb

24 disposal squad on January 7, 1995, okay?


1406 1 THE COURT: No. Go ahead.

2 A. Yes, sir.

3 Q. I'm pertaining to your superior officers in that

4 command on January 7, 1995, okay?

5 A. Yes, sir.

6 Q. On January 7, 1995, was there a captain in your

7 command who was present in room 603?

8 A. Are you asking about our unit, sir?

9 Q. Yes.

10 A. There is no captain in our unit. Lt. Mike Cruz

11 is our chief.

12 Q. Did you tell Special Agent Pellegrino in the

13 United States Embassy the first time you met him in 1995

14 that when you went to the apartment number 603 you were

15 instructed by your captain to inspect the room?

16 A. Maybe it's Capt. Fariscal, but she is not with my

17 unit, with the EOD unit.

18 Q. So you did not tell Special Agent Pellegrino that

19 your captain instructed you to conduct an inspection of the

20 room?

21 A. So I say again, sir, that I stuck to what I was

22 told to write in the report.

23 Q. Sir, you saw the videotape yesterday or the day

24 before yesterday. Do you recall that?

25 A. Yes, sir.

1407 1 Q. Was there a photographer present in room 603 when

2 the videotape was made?

3 A. I don't really know, sir, because I was really

4 paying attention to the job I was assigned.

5 Q. Did you see in the videotape the other day a man,

6 who you said you didn't know his identity, with a camera

7 hanging from his neck?

8 A. There were many units that came that night and I

9 don't know all the people in the units.

10 Q. Did you see on the videotape that was played in

11 this courtroom somebody with a camera hanging around his

12 neck?

13 A. I would like to say that I really didn't notice

14 it because I just saw this videotape in the United States.

15 Q. Sir, you got to the United States on June 5,

16 1996, correct?


18 Q. And when did you have your first meeting with the

19 United States Attorneys and the FBI in this case in the

20 United States?

21 A. A few days after we got here we were called.

22 Q. Were you interviewed alone or were you

23 interviewed with Lt. Mike Cruz at the same time?

24 A. There were instances where we were interviewed by

25 ourselves, and there were instances when the whole group was

1408 1 there together.

2 Q. Now, the first time that you were interviewed was

3 that by yourself or was that in the whole group?

4 A. The entire group, sir.

5 Q. Who was involved -- withdrawn.

6 Who was in this group that was interviewed en

7 masse?

8 A. Are you pertaining -- whom are you pertaining to,

9 sir, the lawyers, the FBI?

10 Q. Let's do the Philippine National Police Force.

11 A. We were five in the group.

12 Q. And who are they?

13 A. There were five of us. Lt. Mike Cruz, myself,

14 Sgt. Voltaire Gomez, Sgt. Edilberto Capacete and PO3 Ariel

15 Fernandez.

16 Q. And how long did this first meeting take?

17 A. It wasn't a long meeting.

18 Q. Well, then how long did the short meeting take?

19 A. Maybe one hour. I don't know.

20 Q. And during this one-hour period did you all go

21 over what your recollections were as to January 6th and

22 January 7th, 1995?

23 (Record read)

24 A. When they talked to us they told us that we

25 should tell the truth when we are in this process.

1409 1 Q. And that took the entire hour?

2 A. We were conversing like normal people converse

3 first.

4 Q. Were you conversing about the case?

5 A. They told us that if we were going to be asked in

6 court we should tell the truth.

7 Q. And this took an hour?

8 A. Like I said, sir, we spent some of the time

9 talking about how we were all, like the normal conversation.

10 Q. Well, I appreciate that, but what I'm interested

11 in, what did you talk about with respect to what occurred on

12 January 7, 1995?


14 Q. Something happened on January 7, 1995, correct?


16 Q. And correct me if I'm wrong, you came from the

17 Philippines to the United States to discuss what happened on

18 January 7, 1995 in the Philippines? Withdrawn.

19 You came to the United States from the

20 Philippines with respect to what occurred on January 7,

21 1995, am I correct?


23 Q. My question is, so as not to confuse you, did you

24 talk about what happened on January 7, 1995, at that meeting

25 you had with the United States Attorney's Office?

1410 1 A. Yes, sir, we did talk about it.

2 Q. And that was during this one-hour meeting that

3 you initially had?

4 A. Yes, sir.

5 Q. And on January -- withdrawn. Whatever date this

6 was, June 5th, 6th, 7th, whatever date it was, did you tell

7 the United States Attorney's Office that you received an

8 attache case from Senior Inspector Fariscal at the 9th

9 police station?

10 A. Yes, sir. Like I said before I stuck to the

11 report that I was told to make.

12 Q. Then did you come back the next day and tell them

13 the same story all over again?

14 A. The next few, the next, subsequently they showed

15 us evidence that was collected from the Josefa.

16 Q. Did they show you FBI report that says the

17 evidence was allegedly found at the Dona Josefa?

18 A. They showed us evidence.

19 Q. Did anyone suggest to you that you should have an

20 attack of conscience and change your testimony?

21 A. No, sir.

22 Q. Did anyone suggest to you that your testimony

23 directly conflicted with what other members of the

24 Philippine National Police may have told the FBI?

25 A. What do you mean, sir, by your question?

1411 1 Q. Did anyone suggest to you that your testimony --

2 withdrawn.

3 Did anyone suggest to you that the story you told

4 in your January 7, 1995 report directly conflicts with the

5 stories told by other members of the Philippine National

6 Police Department?

7 A. To your question I say, no, sir. That's why

8 there came a time when we called these lawyers and we wanted

9 to tell them the exact truth.

10 Q. That happened, or did you receive an order from a

11 higher-up under a special instruction to have an attack of

12 conscience?

13 A. No, sir.

14 MR. GREENFIELD: No further questions, your

15 Honor.

16 THE COURT: Okay. Any redirect?

17 MR. SNELL: Nothing further, your Honor.

18 THE COURT: Step down.

19 DEFENDANT YOUSEF: Your Honor, based on the fact

20 that the report has been introduced in evidence may I ask a

21 few questions pertaining to the report?

22 THE COURT: Sure.

23 RECROSS-EXAMINATION.

24 BY DEFENDANT YOUSEF:

25 Q. Sir, you testified that you were instructed by

1412 1 Lt. Mike Cruz to include specific things in your report, am

2 I correct, sir?


4 Q. Now, how did this happen, sir? Did the

5 lieutenant give you a report and ask you to copy down or did

6 he give you a piece of paper with --

7 A. He handed me a list and he said, copy this. This

8 is the way it should be.

9 Q. Did he give you a complete report and ask you to

10 copy it down?

11 A. No, sir. He didn't give me anything like that.

12 Q. Now, sir, when did this happen?


14 THE COURT: When did what happen? When was the

15 report written, is that the question?

16 DEFENDANT YOUSEF: When he was given the piece of

17 paper by Lt. Mike Cruz?

18 MR. SNELL: I object to that.

19 THE COURT: This is the long way away from it,

20 but go ahead, answer it.

21 A. I think that while I was in the process of

22 writing the report he came into the room, he gave me a piece

23 of paper, and he said: Here it is, put this in your report,

24 too.

25 Q. And that was on January 7, 1995?

1413 1 A. Yes, sir.

2 Q. Now, sir, did you prepare any other report other

3 than the one which is in front of you?


5 that again, please.

6 Q. Did you prepare any other report concerning the

7 incidents which allegedly took place on January 7, 1995?

8 A. Are you pertaining to myself, sir?

9 Q. Yes, sir.

10 A. This is the only report I made, sir.

11 DEFENDANT YOUSEF: I have no further questions,

12 your Honor.

13 THE COURT: Okay, thank you.

14 (Witness excused)

15 THE COURT: Who is next?

16 MR. GARCIA: Your Honor, the government calls

17 Edilberto Capacete.

18 EDILBERTO CAPACETE JR.,

19 called as a witness by the government,

20 having been duly sworn, through the interpreter,

21 testified as follows:

22 DIRECT EXAMINATION

23 BY MR. GARCIA:

24 Q. Mr. Capacete, where do you work?

25 A. I am working as a member of the Philippine

1414 1 National Police and currently I'm assigned to the explosive

2 ordnance disposal unit, office of the assistant director for

3 intelligence, western police district command, as a bomb

4 technician.

5 Q. How long have you been a bomb technician?

6 A. Seven years, sir.

7 Q. Approximately how long have you been a police

8 officer?

9 A. About 14 years, sir.

10 Q. Could you tell us what training you have had as a

11 bomb technician?

12 A. For my foreign training I took a post-blast

13 investigation course at the Louisiana State Police Academy

14 in 1991. In the year of 1992, in the same academy I took an

15 explosive ordnance disposal course.

16 THE INTERPRETER: And the interpreter needs to

17 request a repetition of his local schooling.

18 A. (Continued) And locally in the Philippines I took

19 a special PCINP explosive ordnance disposal course, class

20 89-A.

21 Q. Now, Officer, were you scheduled to work on

22 January 7, 1995?

23 A. Yes, sir.

24 Q. What was your assigned shift on that day?

25 A. We are usually assigned to 24 hour shifts, and

1415 1 that day on the 7th of January, myself and Sgt. Voltaire

2 Gomez were assigned to work for 24 hours.

3 Q. Approximately what time did you report to work on

4 the 7th?

5 A. (English) before 9 o'clock in the morning.

6 THE INTERPRETER: Before 9 o'clock in the

7 morning, sir.

8 Q. You mentioned Voltaire Gomez. How long have you

9 worked with that individual?

10 A. In the bomb disposal unit I had been working with

11 Voltaire Gomez from 1993.

12 Q. Did there come a time during your shift on

13 January 7th that you reported to the Josefa apartment

14 building?

15 A. Yes, sir.

16 Q. Approximately what time was that?

17 A. About 5:30 in the afternoon.

18 Q. Who was with you from the bomb disposal unit when

19 you went to the Josefa?

20 A. The members of the bomb disposal unit with us

21 were, with myself were my partner, Sgt. Voltaire Gomez, our

22 former chief, Lt. Mike Cruz, our present chief, Orlando

23 Ramilo, and SPO4 Armisticio Mandigma.

24 Q. What was your assignment at the Josefa building?

25 A. I was assigned the task of taking video footage

1416 1 during that search on that day.

2 Q. And what did you do when you arrived at the

3 Josefa?

4 A. That, for that time I took video footage from the

5 outside of the apartment, and I covered the members of the

6 bomb disposal unit entering the premises along with members

7 of the other police officers from other agencies, and then I

8 proceeded to take video footage inside the apartment.

9 Q. Approximately for how long a period did you take

10 video footage inside the apartment?

11 A. The video of which I talk that I took lasted for

12 about 25 minutes.

13 Q. Do you recall approximately how long a period of

14 time you were actually running the camera for?

15 A. The actual act of taking the footage could have

16 lasted -- the actual time that I took in taking the video

17 footage could have lasted a longer time because I took

18 footage in intervals, and there were times when my battery

19 would run out. So I would say that the time in between the

20 time I was actually using the video camera and stopping,

21 maybe that time wasted could have been an hour and a half,

22 two hours.

23 Q. So we're clear, when you say you videotaped

24 inside the apartment, was that apartment 603?

25 A. Yes, sir.

1417 1 Q. What instruction, if any, did you give the other

2 members of the team while you were videotaping?

3 A. I told the members of the bomb disposal team and

4 the other police officers present that they should not move

5 anything in the apartment.

6 MR. GARCIA: Your Honor, at this time if I might

7 show the witness Government Exhibit 350 already in evidence

8 as well as Government Exhibit 350A through O marked for

9 identification at this time.

10 First, Officer, will you pick up Government

11 Exhibit 350, which is the videotape in evidence. If you'll

12 just take the video cartridge out of the envelope. Is that

13 a copy of the videotape you shot inside apartment 603?

14 A. Yes, sir.

15 Q. Did you view that videotape prior to coming to

16 court?

17 A. Yes, sir.

18 Q. Are your initials on that videotape?

19 A. Yes, sir.

20 Q. Now, turning next to Government Exhibits 350A

21 through 0 which are in the envelope you have in front of

22 you, generally, sir, do you recognize those exhibits?

23 A. Yes, sir.

24 Q. In general terms what are they?

25 A. These are still photos that were taken from the

1418 1 original tape that I took.

2 Q. Did you have the opportunity prior to coming to

3 court to compare the still photos to the videotape?

4 A. Yes, sir.

5 DEFENDANT YOUSEF: Your Honor, we have no

6 objection to 350A through O, except what we stated

7 previously.

8 MR. GARCIA: The government would offer 350A

9 through O.

10 MR. GREENFIELD: No problem.

11 THE COURT: Tell me what 350K is? What is

12 represented in that picture, please?

13 THE WITNESS: This is, this picture is what was

14 on top of the dressing table in the bedroom in room 603, and

15 on the left-hand side is a watch, that this picture I took,

16 and it's a watch without a bracelet.

17 THE COURT: Mark them all.

18 (Government Exhibits 350A through O received in

19 evidence)


21 Q. Now, Officer, during time that you were shooting

22 the video did you observe what Officer Voltaire Gomez was

23 doing?

24 A. Yes, sir.

25 Q. Could you describe that for us?

1419 1 A. I observed Sgt. Voltaire Gomez working with

2 important evidence that was found in apartment 603. He

3 would tape some of the evidence and write apartment 603 on

4 the tape, or sometimes he would put his signature on

5 evidence that was found, perhaps outside boxes or cartons,

6 outside the bottles, and other, outside plastic bags.

7 MR. GARCIA: Your Honor, if the witness might be

8 shown Government Exhibits 330A, B, C and D.

9 Q. Officer Capacete, do you recognize those items of

10 the exhibits 330A, B, C and D for identification that have

11 been placed in front of you?

12 A. Yes, sir.

13 Q. Where was the first time you saw those items?

14 A. These are items, these are some of the items that

15 I took a videotape of and they were found in apartment 603.

16 Q. And do you recognize any markings on those boxes?

17 A. Yes, these writings, for example, I recognize.

18 This is the handwriting of my colleague, Sgt. Voltaire

19 Gomez.

20 Q. Did he make those markings on January 7, 1995?

21 A. Yes, sir.

22 Q. And do those boxes appear to be in the same

23 condition they were in when you saw them inside apartment

24 603?

25 A. It's similar, sir.

1420 1 Q. Do you recall what was inside those boxes when

2 they were in apartment 603?

3 A. What I know is that it contains electric stoves.

4 MR. GARCIA: Your Honor, the government would

5 offer exhibits 330A, B, C and D.

6 (Government Exhibit 330A, B, C and D received in

7 evidence)

8 THE COURT: Ladies and gentlemen, we'll take our

9 morning break at this point.


11 present)

12 THE COURT: These things have in them what it

13 says on the outside, one heating element in each one?

14 MR. GARCIA: Yes, your Honor. I thought I would

15 have the witness just hold them up for the jury.

16 THE COURT: Fine.

17 (Recess)


19 THE COURT: Throughout we've referred to the

20 exhibit as 3522B. Do you want to make it into something

21 else, I don't care. Just so long as it's not going to

22 confuse some reviewing court.

23 MR. GREENFIELD: If you say it that way, it's

24 fine.

25

1421 1 DIRECT EXAMINATION (continued)

2 BY MR. GARCIA:

3 Q. Officer Capacete, I believe right before the

4 break you mentioned that there were stoves inside Government

5 Exhibits 330A through D; is that right?

6 A. Yes, sir.

7 Q. Did you see those stoves that are inside the

8 boxes while you were in apartment 603 during the search?

9 A. Yes, sir.

10 Q. Turning to Government Exhibit 330A, which is on

11 the stand in front of you, could you open that box for us.

12 If you would just remove the item inside and display it for

13 the jury.

14 THE COURT: Was this this way when you found it?

15 THE WITNESS: When I saw this box I opened the

16 box and I just looked inside. I didn't remove the item from

17 the box.

18 MR. GARCIA: Your Honor, if I might show the

19 witness at this time Government Exhibit 332 and 332D for

20 identification.

21 Q. First, directing your attention, Officer, to the

22 exhibit that has been marked 332, which is right in front of

23 you. Do you recognize that item?

24 A. Yes, sir.

25 Q. How is it that you recognize it?

1422 1 A. I recognize this item as a piece of evidence

2 because of the numbers 603 written on the box that was

3 written by my partner, Sgt. Voltaire Gomez, and by the

4 sticker on the side of the box.

5 Q. When you say you recognize it as evidence, did

6 you see that item in the apartment 603 during the search?

7 A. I did not only see this box. I took a videotape

8 footage of it.

9 Q. If you would open up Government Exhibit 332 and

10 take a look inside there for us.

11 DEFENDANT YOUSEF: Objection, your Honor.

12 THE COURT: To have him look at it? No, go ahead

13 and look at it.

14 Q. And just look at the Government Exhibit marked

15 inside, Government Exhibit 332D for identification, without

16 taking it out. Do you recognize that item?

17 A. Yes.

18 Q. Where was the first time you saw that item?

19 A. In apartment 603.

20 MR. GARCIA: Your Honor, at this time the

21 government would offer Government Exhibits 332 and 332D.

22 MR. KULCSAR: May we look at it, your Honor?

23 THE COURT: Sure, bring it down.

24 MR. GARCIA: Your Honor, if I might ask a

25 question while he is doing that?

1423 1 Q. Officer Capacete, Government Exhibit 332D, is

2 that in the same condition you saw it in apartment 603?

3 A. No, sir.

4 Q. What is different about it now?

5 A. The item that I saw at the apartment which was

6 2,000 ML was complete. This is broken.

7 Q. And when you say 2,000 ML do you mean 2,000

8 milliliters?

9 A. Yes, sir.

10 MR. GARCIA: Your Honor, at this time the

11 government would renew its offer.

12 DEFENDANT YOUSEF: May I have a short voir dire?

13 THE COURT: Sure.

14 VOIR DIRE EXAMINATION


16 Q. Sir, could you just point out which handwriting

17 is Mr. Gomez's handwriting?

18 A. That which says room 603, the letters EODU.

19 Q. Is that written in red ink, sir?


21 again, please?

22 THE COURT: Was that written in red ink, sir?

23 THE WITNESS: The actual color he was using on

24 that day I can't remember, but I recognize the handwriting

25 as that of Sgt. Voltaire Gomez.

1424 1 Q. The handwriting you just recognized now, is that

2 the only one written in red ink, sir?

3 A. Yes, sir.

4 Q. Sir, do you know when the writing was placed on

5 the box?

6 A. Yes, sir.

7 Q. Could you tell us, sir, when?

8 A. When we were conducting the search at room 603 at

9 the Josefa Apartments.

10 Q. Sir, the contents of the box which you saw just

11 now, is that the same contents of the box when you saw it in

12 room number 603?

13 A. Aside from what's inside now there were other

14 graduated cylinders.

15 Q. Sir, what was inside the box when you first saw

16 it in room 603? Is it inside the box now?

17 A. When I was taking a videotape of this item I took

18 a videotape of this item that's inside this box now. There

19 were other items like graduated cylinders of different

20 sizes, thermometers, and other equipment used in chemistry.


22 your Honor.

23 THE COURT: Mark it in.

24 (Government Exhibits 332 and 332D received in

25 evidence)

1425 1 BY MR. GARCIA:

2 Q. Now, sir, you just mentioned that when you

3 originally saw this box or videotaped this box you observed

4 thermometers and other graduated cylinders inside; is that

5 right?

6 A. Yes, sir.

7 MR. GARCIA: Your Honor, if I might show the

8 witness Government Exhibits 331, 332A, 332B, 332C, 332E,

9 332F1, and 332F2 marked for identification at this time.

10 Officer Capacete, directing your attention to the

11 items that have been placed before you, do you recognize

12 those items?

13 A. Yes, sir.

14 Q. Where did you first see those items?

15 A. These were items that I videotaped in apartment

16 603 that Sgt. Voltaire Gomez had put in the box.

17 Q. Directing your attention to Government Exhibit

18 350N which is already in evidence, the still photo on top of

19 that pile, I believe.

20 THE COURT: Here you go.

21 Does Government Exhibit 350N show any of these

22 items before you?

23 A. Yes, sir.

24 Q. Is that the box that was packed by Voltaire Gomez

25 that you just described for us?

1426 1 A. Yes, sir.

2 Q. If you could just hold that photo up to the jury

3 so that they can see as well.

4 (Witness holds photo up)

5 Q. Thank you.

6 At this time the government would offer

7 Government Exhibits 331, 332A, 332B, 332C, 332E, 332F1 and

8 F2.

9 MR. KULCSAR: May we look at the photograph, your

10 Honor?

11 THE COURT: Sure.

12 DEFENDANT YOUSEF: Your Honor, may I have a short

13 voir dire?

14 THE COURT: Sure.

15 VOIR DIRE EXAMINATION


17 Q. Sir, with respect to Government Exhibits in front

18 of you when prior to today was the last time you saw each of

19 them?

20 A. (In English) Just the other day.

21 THE INTERPRETER: Just the other day.

22 Q. What do you mean by the other day, sir?

23 A. Just when I went the other day to the office of

24 attorney, US Attorney Michael Garcia.

25 Q. And when was that, if you recall?

1427 1 A. I don't really remember, but I know I was there

2 three times in his office.

3 THE COURT: Was it last week or this week?

4 THE WITNESS: I know we arrived here on the 5th

5 of June and we met with them after a few days and we went

6 there once. Then after a few days we went there again.

7 Maybe two weeks had passed, or a week. I'm not sure.

8 Q. And did you see them during the three times in

9 which you were in his office?

10 A. Not all those three days that I went to his

11 office. I think it was only once.

12 Q. Prior to that, prior to June 5th of 1996, when

13 did you see each of these items?

14 A. I can't really remember the day or the time but I

15 saw these items once when I got here.

16 Q. Before being in the United States, prior to that

17 when did you see these items?

18 A. That day at the Josefa.

19 Q. How many times did you see them while you were in

20 the Philippines?

21 A. Only once, but the rest of the time I saw it in

22 my videotape and that one time was at the Josefa Apartments.

23 Q. Now, sir, is there any writing or mark that was

24 placed by you on Government Exhibits which are placed before

25 you that allows you to identify them now?

1428 1 A. No, sir. What I did was I saw these items at the

2 apartment, I took a videotape of this apartment and I

3 reviewed my videotape.

4 Q. Sir, are these items the same items which you saw

5 in room number 603 in January of 1995 or they are similar to

6 them?

7 A. This item, for example, they're thermometers in

8 these cases. The only difference is the containers are now

9 discolored.

10 Q. Sir, when you saw these items in room number 603

11 the first time were they, did they appear to you now in the

12 same condition in which you saw them in room 603 in January

13 of 1995?

14 A. These items (indicating) seem to be in the same

15 condition, but the thermometer is different. The

16 thermometer, the case, the encasing around it is different

17 because of the discoloration, and the item contained in the

18 box it's broken.


20 your Honor.

21 THE COURT: Okay.

22 MR. KULCSAR: One moment.

23 Q. Sir, isn't it a fact that a videotape shows that

24 these items were wrapped in a plastic or clear paper and

25 inside boxes?

1429 1 A. Could you please repeat the question, sir?

2 Q. Isn't it a fact that they were taken out of boxes

3 before they were videotaped?

4 A. That hour when I was taking the video these items

5 were removed from the box, and I would videotape each item

6 which was taken out of the box and Sgt. Voltaire Gomez

7 subsequently returns it to the box.

8 DEFENDANT YOUSEF: No further questions, your

9 Honor.

10 (Government Exhibits 331, 332A, B, C, E, F-1 and

11 F-2 received in evidence)

12 BY MR. GARCIA:

13 Q. Officer, if you could just direct your attention

14 now to Government Exhibit 331, the thermometers. If you

15 could just open one of those thermometers and take one out

16 for us, if you would.

17 Just hold it up so the jury might see it.

18 Thank you.

19 Your Honor, at this time if the witness might be

20 shown Government Exhibits 325, 327, 328-A, B and C and 329.

21 First, if I can direct your attention, Officer,

22 to the item on your far left, the small box, Government

23 Exhibit 325 for identification.

24 Do you recognize that item?

25 A. Yes, sir.

1430 1 Q. How is it that you recognize that?

2 A. This is similar to one of the items that I

3 videotaped at the apartment 603. I actually see a marking

4 of, made by Sgt. Voltaire Gomez of the room number.

5 Q. Was that marking made on January 7, 1995?

6 A. Yes, sir.


8 350-O which will be the top photo on that pile, do you see

9 that item in that still photo?

10 A. Yes, sir.

11 Q. Could you just show it up so that everyone can

12 see it?

13 (Witness holds photo up)

14 Q. Thank you.

15 Directing your attention next to Government

16 Exhibit 327.

17 THE COURT: Why don't you stop there? You want

18 to offer this one?

19 MR. GARCIA: Yes, your Honor, the government

20 would offer Exhibit 325.

21 DEFENDANT YOUSEF: No objection.


23 (Government Exhibit 325 received in evidence)

24 THE COURT: What's next?

25 MR. GARCIA: Government Exhibit 327. I thought

1431 1 you asked me to stop.

2 THE COURT: Which one is that?

3 MR. GARCIA: On the witness's far right.

4 Q. Do you recognize that item, Officer?

5 A. Yes, sir.

6 Q. Looking inside the bag there do you recognize any

7 marking?

8 A. Yes, sir.

9 Q. What do you recognize?

10 A. I recognize the signature of Sgt. Voltaire Gomez

11 and his tape.

12 Q. Was that signature and tape placed on the item on

13 January 7, 1995 in room 603?

14 A. Yes, when we did the search at room 603.


16 350-A, the next still photo. Do you see that item in

17 Government Exhibit 327 in that still photograph?

18 A. Yes, sir.

19 MR. GARCIA: Your Honor, the government would

20 offer Government Exhibit 327.

21 MR. KULCSAR: Can the witness just hold it up,

22 your Honor?

23 THE COURT: Sure.

24 (Pause)

25 MR. KULCSAR: Thank you very much.

1432 1 THE COURT: Mark it in.


3 THE COURT: Now you can sit.

4 Ladies and gentlemen, it's lunchtime. Today is

5 that magic day, perhaps you know. I hope you've made your

6 selection. Let's hope we'll do it within a reasonable time

7 today, so go enjoy.


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1433 1 (Jury not present)

2 (Witness and interpreter not present)

3 THE COURT: My comment is I think to you, Mr.

4 Yousef, counsel who may not know under the Federal Rules now

5 there is no "chain of custody requirement" like there is in

6 New York State. That's an entirely different thing.

7 Federal Rules are relatively clear about that, but even

8 before we had Federal Rules there was no chain of custody

9 requirement at all.

10 MR. KULCSAR: We're not going to test of the

11 chain of custody at all, your Honor.

12 THE COURT: Yes, Roy.

13 MR. KULCSAR: Your Honor, because I have the

14 opportunity to stand before you I have discussed with

15 Mr. Garcia to ask whether or not the government would intend

16 to call Officer Gomez, and at this point they're not sure.

17 I would just ask that the government have him available. We

18 may be able to resolve it by a stipulation anyway.

19 THE COURT: Sure.

20 MR. KULCSAR: Also, the same is true apparently

21 with Lieutenant or whatever his designation is Cruz, so that

22 if the government does not intend to call him, we'd like to

23 have him available to be called.

24 THE COURT: Yes. Now, a question. I don't know

25 whether the folks who speak Taglog pronounce a W as a V. Is

1434 1 Gomez's name Voltaire or is Walter?

2 MR. GARCIA: It's Voltaire.

3 THE COURT: It's Voltaire just like the French

4 philosopher, okay.

5 (Luncheon recess)


7 2:15 p.m.


9 MR. GARCIA: Your Honor, if I might raise an

10 issue?

11 THE COURT: Sure.

12 MR. GARCIA: The government at this time intends

13 during this witness's testimony to show the witness

14 Government Exhibit 307 which is the Hawley's Condensed

15 Chemical Dictionary. The government does not intend to

16 offer the exhibit at this time because of the dispute over

17 certain pages in the book. It plans to introduce at a later

18 time the chain of custody witness.

19 THE COURT: Just identify?

20 MR. GARCIA: Yes, your Honor.

21 THE COURT: The other books, too?

22 MR. GARCIA: No, your Honor, the other books we

23 intend to offer.

24 THE COURT: They are around?

25 MR. GARCIA: They are all here. How many more

1435 1 Tagalog witnesses do you have?

2 MR. GARCIA: Eight or nine, your Honor.

3 (Pause)

4 THE COURT: Look, I know you're all terribly

5 anxious to continue, but we have a problem with one of the

6 jurors who is ill. Number 341, back row, I think third or

7 fourth seat. You remember her? She has had headaches she

8 claims for the last week, and she says she feels nauseous,

9 so on and so forth, and would like to have some place lie

10 down. Now, you guys, my own reaction is there is no sense

11 to chase this juror. She seems like a heck of a nice

12 person.

13 MR. GREENFIELD: I agree.

14 MR. KULCSAR: I agree.

15 THE COURT: That's what we'll do. We'll let the

16 woman go. Is there any other thing that we can take care

17 of? Is there anything else can take care of while we're all

18 here?

19 MR. GREENFIELD: May we take five minutes to

20 discuss it?

21 THE COURT: Sure, go ahead.

22 (Recess)


24 THE COURT: Okay. I understand you guys have

25 something that you want to take up. Let's take it up and

1436 1 get it over and done with. You want to do it out here?

2 MR. SNELL: Sure. Your Honor, one of the next

3 witnesses, if not the very next witness, is going to be a

4 member of the Philippine Presidential Security Group which

5 is as I understand it roughly the same as our Secret

6 Service, and they are responsible for protecting the heads

7 of state.

8 THE COURT: Foreign dignitaries and so on and so

9 forth.

10 MR. SNELL: Actually, your Honor, I think it's

11 just heads of state, if I understand it correctly. He was

12 involved in the security arrangements for the Pope's visit

13 in January, 1995, in Manilla, and he was summoned to the

14 Josefa Apartments on the night of January 6th and 7th

15 because of what was discovered there.

16 THE COURT: Yes. Now, why are you putting him on

17 the stand? There is no charge here that these people

18 conspired to blow up the Pope.

19 MR. SNELL: That's absolutely true, your Honor.

20 He's going to be testifying because he is the person who

21 took the computer from room 603.

22 THE COURT: He is the so-called aide?

23 MR. SNELL: As has been referred to so far I

24 guess that's right.

25 THE COURT: I don't know. Do you guys want to

1437 1 put this guy on the stand at all? I'm talking about the

2 defense. Think about it, for God's sake.

3 MR. GREENFIELD: Is there any 3500 for this

4 witness so we can evaluate that instead of making a decision

5 in the blind?

6 THE COURT: I don't know.

7 MR. SNELL: There is one very short 302, your

8 Honor.

9 THE COURT: It says basically --

10 MR. SNELL: That's right, your Honor.

11 THE COURT: I would recommend to you, and that's

12 all I can do recommend, that you give him the 302, and I

13 would recommend to the defense counsel that you consider

14 whether it's not just as easy to let this guy go past and

15 say that so and so was there; either that, or restrict your

16 cross-examination, and this particularly I'm directing to

17 you, Mr. Yousef. Please restrict your cross-examination.

18 This is not a matter of bouncing around with the jury.

19 MR. UDELL: Might it be a suggestion that if he's

20 told on direct that he not state his title or his purpose,

21 just represent that?

22 THE COURT: I don't care. I don't know.

23 MR. GREENFIELD: Your Honor.

24 MR. UDELL: If he states that --

25 MR. GREENFIELD: May I make another suggestion

1438 1 that may help us make our decision other than 302. Can the

2 government tell us what his direct testimony would be

3 without obviously -- your Honor, in this sense. "I arrived

4 at the apartment at a certain time. I received the

5 computer, and I brought it to point B and I left it there."

6 THE COURT: I don't know if he has anything else

7 to say. I can't force the government to disclose what they

8 expect his direct testimony to be, and I won't do it. We

9 have been dancing around this thing for a long time now.

10 It's just not worth bringing out possible alleged crimes

11 when we don't need them. There is enough crime here.

12 MR. KULCSAR: Your Honor, I think we all agree

13 about it. I think what we're asking if Mr. Snell or Garcia

14 can draft some form of stipulation we can sign off on.

15 THE COURT: I don't know. Maybe they won't

16 stipulate.

17 MR. SNELL: Your Honor, I'm afraid the situation

18 is even more complicated because there is at least one other

19 witness who is a member of the same group who is also in the

20 chain of custody, not just for the computer, but for other

21 items of evidence as well that were taken from 603.

22 THE COURT: I thought I made it clear. You

23 weren't listening when I was discussing matters with Mr.

24 Yousef and with everybody else. There is no such thing as

25 chain of custody under the federal law. Now, if you want to

1439 1 make one, nice, but if you take a look at the circuit cases

2 they have absolutely rejected, at least that's what used to

3 be. God knows they might have changed their mind, but not

4 to my knowledge.

5 MR. SNELL: The problem, your Honor, is that for

6 the contents of the computer I'm sure those will be a

7 contested issue, and in addition to retrieving the computer

8 from the apartment, the next witness accessed the computer

9 and browsed files.

10 THE COURT: But did he put anything into it?

11 MR. SNELL: Not according to what we expect his

12 testimony to be.

13 THE COURT: Did the next guy put anything into

14 it?

15 MR. SNELL: No, your Honor.

16 THE COURT: Okay. So what the blazes are they

17 here for? Some of the stuff, you know, you've given me a

18 hard drive and I've accessed it myself. I don't know where

19 the blazes it came from, but you think that an issue might

20 be that this was put in by Philippine National Police, et

21 cetera, et cetera? Okay, I can understand the position.

22 All right. It's something you guys are going to

23 have to work on. I don't have authority to force anybody to

24 do a darn thing and I wouldn't do it anyway. But everybody

25 should be aware that's the kind of thing that really makes

1440 1 sense.

2 All right. I want everyone back here at 9:30 on

3 Monday, not 10 o'clock, and the reason for the 9:30 is so

4 that we can work this thing out. Yes, Clover.

5 MS. BARRETT: Judge, during the suppression

6 hearing some draft transcripts were turned over to your

7 Honor for consideration as to whether or not they should be

8 turned over to defense. These were transcripts that were

9 given to Agent Pellegrino while he was in the Philippines.

10 I don't believe your Honor made a decision with respect to

11 that, and I'm asking that those transcripts be turned over

12 so we can say that the tapes are authentic. It may also be

13 Brady material.

14 THE COURT: The transcript? No, the transcript

15 would not be Brady material.

16 MR. GARCIA: Your Honor, those were the

17 transcripts that the government made available to the Court

18 since the transcripts were of five or six of the cassettes

19 that were turned over to Ms. Barrett in discovery.

20 THE COURT: You have the cassettes. I don't

21 know. Are you suggesting that the transcript is other than

22 what the cassette played?

23 MS. BARRETT: I didn't hear, your Honor.

24 THE COURT: What?

25 MS. BARRETT: I didn't hear.

1441 1 THE COURT: Are you suggesting that the

2 transcripts contain something other than what the cassette

3 has?

4 MS. BARRETT: Not necessarily, your Honor.

5 THE COURT: Then I don't see the reason to turn

6 them over.

7 Okay. 9:30 on Monday. See you.

8 (Adjourned to Monday, July 1, 1994, 9:30 a.m.)

9

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1880

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

3 UNITED STATES OF AMERICA,

4 v. S12 93 Cr. 180 KTD

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

16 Defendants.

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

18

19 July 10, 1996 10:00 a.m. 20

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

25

1881

1

2

3 APPEARANCES 4

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

9 ROY KULCSAR, Attorney for defendant Yousef 10

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

13 DAVID GREENFIELD, 14 Attorney for defendant Shah

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

17 AZIZ ISMAIL, GALAL EL-NAHAL, 18 Arabic Interpreters

19

20

21

22

23

24

25

1882

1 (Trial resumed)


3 MR. SNELL: Judge, while we are waiting for the

4 witness, could I put an exhibit on the stand that I want to

5 start him off on?

6 THE COURT: Sure.

7 MR. SNELL: It is 301G.

8 REYNALDO CANLAS, resumed.

9 (Jury present)

10 THE COURT: Good morning, guys. I hope you did

11 something constructive yesterday afternoon. I did. I went

12 to the dentist. Anyway, I will not go through the boring

13 details of it, but I will tell you this much. He is one of

14 those fellows who does not believe in Novocain. "It doesn't

15 hurt." One of these days I am going to do it to him.

16 We are back today, you will recall we were

17 discussing computers when we last met. We will take the

18 testimony. I am sure that the prosecutors have some more to

19 talk about computers.

20


22

23

24

25

1883

1 DIRECT EXAMINATION continued

2 BY MR. SNELL:

3 Q Mr. Canlas, yesterday you were testifying about

4 work that you did on January 9, 1995, on the laptop

5 computer, is that right?

6 A Yes, sir.

7 Q I would like to start by directing your attention

8 to the exhibit that is in front of you, which I believe is

9 marked Government's Exhibit 301G in evidence. You remember

10 that?

11 A Yes, sir.

12 Q Would you take a look at the end of the cord on

13 that exhibit, and hold it up for everybody so that they can

14 see what it looks like.

15 What is normally at the end of a wire piece of

16 equipment like that?

17 THE COURT: You need an expert to explain that?

18 A plug.

19 MR. SNELL: Thank you, your Honor.

20 Q Was the exhibit in that condition when you first

21 saw it on January 9, 1995, Mr. Canlas?

22 A Yes, sir, I remember it so.

23 Q Thank you. You can just put it aside.

24 THE COURT: How did you get the machine to work

25 if you couldn't plug it in? Battery?

1884

1 THE WITNESS: No, sir. It can still be

2 plugged -- improvise.

3 THE COURT: I see. You stick it in the wall and

4 hope to God you don't get electrocuted.

5 THE WITNESS: Yes.

6 Q About how long that night did you work on the

7 computer?

8 A Until about 3:00 a.m. in the morning, the

9 following morning, 3:00 a.m.

10 MR. KULCSAR: Can we just clarify the date, what

11 night we are talking about?

12 THE COURT: I guess this is January 9 into 10.

13 THE WITNESS: Until January 10, your Honor.

14 MR. GREENFIELD: May I suggest that the witness

15 lift the microphone up.

16 THE COURT: Yes. Make yourself comfortable

17 there.

18 Q At 3 a.m. did you decide to retire for the night?

19 A Yes, sir, and my plan then was to continue

20 working the following morning and do the printing at our

21 office at Camp Crame.

22 Q What happened the following morning?

23 A At about 8:00 in the morning, I got a call again

24 from Colonel Delfin, and he said he needed the computer

25 back, and he has to take it to the director, so he will be

1885

1 passing by again my residence to pick up the computer. I

2 told him there is more work that should be done.

3 Q I am sorry to cut you off, but without going into

4 what was said in the conversation, sir, could you tell us,

5 did you see Colonel Delfin after that phone conversation?

6 A Yes, sir, he did pass by and pick up the

7 computer.

8 Q Did you see the computer again at all after you

9 gave it back to Colonel Delfin?

10 A The next time I saw the computer was the

11 afternoon of the following day, which is Wednesday, the 11th

12 of January.

13 Q Where did you see the computer on the 11th of

14 January?

15 A In my office at Camp Crame, PNP Intelligence

16 Command.

17 Q At that time, did you receive any request as to

18 something that should be done with the computer?

19 A Just to print out all the data that we recovered

20 and the files that are important, and then we did recover

21 some files, and there were also active files --

22 MR. GREENFIELD: Objection, your Honor.

23 THE COURT: I am sorry, but I didn't hear it.

24 (Record read)

25 THE COURT: No, go ahead.

1886

1 Q Could you finish the answer that you were giving.

2 A I recovered in the evenings some files that were

3 coded, encrypted, and this is the work, additional work that

4 I said earlier that had to be done. The files looked

5 important, so we had to work on it to decode the encrypted

6 files.

7 Q At this time were you still working on the

8 original laptop computer?

9 A No, sir. When I got the computer in my office

10 that Wednesday afternoon, the first thing that we did was to

11 make a copy, a mirror copy of the contents of the computer,

12 and the copy we loaded into our own computer. This is so

13 that we don't work on the original, to preserve what is in

14 there, and we just work on the copies. This was after we

15 printed out everything. This work, as I said, is the

16 decoding work.

17 Q Could you, without going into a huge amount of

18 detail could you summarize for us what kind of work you did

19 on the files that you decided were coded?

20 A It is called crypt-analysis. It is like solving

21 a puzzle, where the decoded file, you try to solve it and

22 convert it back to plain text. The decoded is unreadable.

23 You try to convert it back into something readable.

24 Q What does the coded version of the files that you

25 saw on this computer look like? Could you describe it just

1887

1 in words?

2 A How decoded files look like?

3 Q Yes. What do they look like when you first see

4 them?

5 A The file names, they are text files because the

6 extension of the file name ends with a TXT and a WRI. So

7 obviously these are text files and write, word processing

8 files. But when I looked at them it is unreadable. It

9 contains random, seemingly random ASCII characters which

10 cannot be read plainly.

11 Q Were you able to do any work on any of these

12 files that allowed you to convert them into something you

13 could read?

14 A Yes, sir. We proceeded to work on the files, and

15 it took us maybe about a week to be able to decode -- not

16 everything. There were several files that we were able to

17 decode and the others we just couldn't make anything out of.

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

19 to ask if the witness could be shown what have been marked

20 Government's Exhibits 356 and 357 for identification.

21 Q Sir, do you recognize those documents?

22 A Yes, sir.

23 Q What are they?

24 A These are printout of the files we decoded.

25 Q Do Government's Exhibits 356 and 357 fairly and

1888

1 accurately show what it was that you got off of your

2 computer after doing work on two files that you had found in

3 the laptop computer?

4 A Yes, sir.

5 MR. SNELL: Your Honor, the government offers 356

6 and 357, and we have copies for everyone.

7 (Government's Exhibits 356 and 357 received in

8 evidence)

9 THE COURT: Mr. Canlas, 357 I have in front of me

10 here. Are you going to be talking about these? I see that

11 you are --

12 MR. SNELL: Yes, I will. I was going to wait for

13 the jury to get their copies.

14 THE COURT: All right, go ahead.

15 MR. SNELL: Shall I proceed, your Honor?

16 THE COURT: Yes, go ahead.

17 Q Mr. Canlas, with respect to Government's Exhibits

18 356 and 357, do you recall whether those files were active

19 files or recovered files on the computer as you originally

20 found them?

21 A I remember this as the cryptic, or decoded files,

22 although there are also active files with similar content.

23 Q Can you tell us whether you have compared the

24 contents of 356 and 357 as they exist now?

25 A Yes, sir. 356 looks like a subset of 357.

1889

1 Q By subset, do you mean that it is essentially the

2 first portion of 357?

3 A Yes, sir, it looks like 356 is a part of 357.

4 MR. SNELL: Your Honor, at this time I was going

5 to ask if the jury could be given a moment to read the

6 exhibits. I don't have any further questions on the

7 exhibits.

8 (Pause)

9 MR. SNELL: Your Honor, if I might proceed at

10 this point.


12 Q Mr. Canlas, did there come a time when you met

13 with representatives of the FBI concerning your work on this

14 computer?

15 A Yes, sir.

16 Q In fact, did there come a time when you provided

17 a diskette to the FBI containing work that you had done?

18 A Yes, sir.

19 MR. SNELL: Your Honor, could the witness please

20 be shown what has been marked Government's Exhibit 358 for

21 identification.

22 Q Sir, do you recognize that?

23 A Yes, sir.

24 Q How do you recognize it?

25 A It has my initials on it.

1890

1 Q What is it?

2 A It is a diskette that contains the encrypted

3 files, the decoded files, and programs we use to decode.

4 Q With that diskette, are you able to decode the

5 encrypted or coded files on the laptop computer that you

6 worked on?

7 A Yes, sir.

8 MR. SNELL: Your Honor, the government offers

9 358.

10 (Government's Exhibit 358 received in evidence

11 (Stop stop.

12 DEFENDANT YOUSEF: Your Honor, I have objection

13 subject to application.

14 THE COURT: All right, I will hear the

15 application at the break.

16 Q Mr. Canlas, is there a date by your initials on

17 the diskette?

18 A Yes, sir.

19 Q What is the date?

20 A March 21, '96.

21 Q Is that the date that you provided that diskette

22 to the FBI?

23 A Yes, sir.

24 Q Before that time, had you also met with the FBI

25 concerning the computer?

1891

1 A Yes, sir.

2 Q Had you previously provided information about the

3 decryption work that you had done?

4 A Yes, sir, I told them about the decryption work.

5 Q Did there come a time when you received a

6 certificate from the United States government commending

7 your work in this case?

8 A Yes, sir.

9 Q Were you also approached about coming here to

10 testify in this trial?

11 A Yes, sir.

12 Q What is your understanding of the arrangements

13 that have been made to allow you to come here to testify?

14 A The arrangement was that I will be flown here

15 from the Philippines, they will be paying for my airfare, my

16 accommodations will be taken care of, we get an allowance,

17 daily allowance, and that I will be compensated for my lost

18 time in terms of the work that -- I will be away from my

19 work.

20 Q Sir, did you receive any orders from anyone to

21 come here to testify?

22 A No direct order, sir. I was requested and I

23 acceded.


25

1892

1 MR. SNELL: Thank you. Nothing further.

2 DEFENDANT YOUSEF: Your Honor, I want to make an

3 application now in terms of legal argument.

4 THE COURT: Sure. Ladies and gentlemen, would

5 you step outside, please.

6 (Jury excused)

7 (Witness temporarily excused)

8 THE COURT: What is your application?

9 MR. KULCSAR: Your Honor, might I be allowed to

10 address the court?

11 THE COURT: Sure.

12 MR. KULCSAR: Your Honor, the defendant contends

13 that most particularly with the witness who has just

14 completed direct testimony, that the government has

15 proffered a number of witnesses, and again most particularly

16 this witness, concerning whom the application was addressed,

17 as in reality nothing more and nothing less than an expert

18 witness. This is not a fact gatherer or an observer of

19 incidents, or an introducer of evidence in a form that is

20 recognizable to each and every person. Most particularly

21 with this witness, we have presented before the jury nothing

22 less than opinion, because the fact of the matter is, as I

23 am sure your Honor has gleaned from the testimony of the

24 witness, that what was given to this witness was a computer

25 in a form that was not readily accessible in terms of the

1893

1 contents thereof, and that this witness was asked to use his

2 expertise and particular expertise to ascertain the contents

3 thereof, which is based upon his opinion and his work and

4 has now become evidence.

5 We suggest and would argue strongly to the court

6 that most particularly with this witness the defense should

7 have been given advance notice of this witness. Where the

8 court might well consider the fact that other witnesses'

9 identity should be safeguarded for reasons best known to the

10 prosecution, we suggest that there is no such necessity with

11 relationship to this witness. In point of fact, all the

12 information could have been made available without his name

13 because the name as such is of no significance.

14 My conclusions in this regard and my argument to

15 the court are based not only on what I heard in terms of his

16 testimony, much of which I admittedly would not readily

17 comprehend, based upon my total familiarity with pens and

18 total unfamiliarity with computers, but the fact that in

19 order to comprehend and readily understand the substance of

20 this witness's testimony it was necessary for me to spend

21 most of the night in contact with the expert witnesses that

22 the court was kind enough to authorize the defendant in

23 California, and through fax machines transmit them back and

24 forth, the problem not only relates to whether or not this

25 testimony should be admitted at this point given the failure

1894

1 of the government to give adequate notice to the defense but

2 also the fact that presenting this witness in the manner he

3 has so far been presented presents a severe obstacle to the

4 defense in terms of being able to cross-examine him. Any

5 attorney except an expert in this area would certainly want

6 to have an expert available to him in evaluating the

7 testimony as it was going on to frame certain questions, and

8 I suggest certain examples, if I might, to the court, again,

9 based upon what I have been told, certainly not my own

10 knowledge.

11 As I understand it, when this witness was first

12 given the computer and the hard drive, it was in a certain

13 manner, a certain form. It had a certain content. Based

14 upon the testimony of Inspector Taas, his attempts to browse

15 the files didn't really lead to anything.

16 As as I understand the testimony of this witness,

17 one of the first things he did after getting the computer in

18 its original evidentiary state, as he understood it, was to

19 add any number of programs to the hard drive, to the hard

20 disk that the that is on that computer. By doing that, as I

21 understand it again from the experts, he inevitably altered

22 the original content of that hard drive so that it was no

23 longer in the same state as when he received it.

24 What happened thereafter in point of fact as a

25 result of his workmanship and his opinion in terms of doing

1895

1 and not doing certain things, as I understand from the

2 experts, at this point if this witness says something was a

3 deleted file or not a deleted file, there is no way for

4 someone else to come in and say that is correct or not

5 correct, for the simple reason that they don't have access

6 to the same instrument or disk that this witness worked with

7 initially in putting in the programs.

8 One of the things that was uncertain because it

9 was not clear until the testimony this morning, and I

10 couldn't get a firm answer, it appears now, as I understand

11 it -- and I may be incorrect again -- that this witness

12 apparently prepared these diskettes and used these diskettes

13 to decrypt files, rather than decrypt using Morton Utility

14 or other functions that he inserted onto the hard disk, and

15 that in and of itself again presents opinion testimony in

16 the form of an expert.

17 THE COURT: Let me back up. First of all, the

18 mystery of computers is something which afflicts people of

19 your age and mine. Most of the kindergarten kids and most

20 of the kids by at least fifth or sixth grade can use

21 computers and run rings around the two of us. Here is a guy

22 who is still young, who has some understanding of it. He

23 can draw things off a computer that neither you nor I could

24 do. Does that mean it is unfair to let him testify as to

25 what he did?

1896

1 MR. KULCSAR: No, I am not -- I am sorry, your

2 Honor.

3 THE COURT: The answer is no. It is the same

4 thing as when I am stuck trying a patent case. You know,

5 the experts come in, tell me what is going on, and then the

6 fact witnesses come in and tell me what they did. But I

7 can't permit myself and you can't permit yourself and you

8 can't claim some great surprise because the witness has said

9 I have done so and so and so and so.

10 As for the changes, changes are additions, I

11 gather, and not deductions. There are two things. The

12 change to the overall universe of the disk. Were there

13 changes? Yes, by merely putting on a machine you basically

14 change it, believe it or not. But was there an addition is

15 a different thing. By drawing off matter which was already

16 put into the computer there is not a change. But by putting

17 on the computer you have changed it. By putting on the

18 computer and drawing off matter which had been inputted by

19 somebody else, can it be said you have changed it?

20 Absolutely it can be said that it has been changed.

21 Believe it or not, there are physicists, and I am

22 serious about this, who insist that when I look at the moon,

23 my looking at the moon changes it. I don't think it is a

24 change which the law can take cognizance of and I don't

25 think that in a situation like this makes this man's direct

1897

1 examination excludable or the government chargeable with

2 some kind of improper conduct because they permitted this

3 kind of thing to go on. That's what happens. We are doing

4 the best we can.

5 MR. KULCSAR: I know that, your Honor. I think

6 unfortunately it is unfair that you use an example from

7 physics, which is probably the only other area than

8 computers in which I am deficient. Leaving that aside, your

9 Honor, I purposely did not use the words "improper conduct"

10 in the sense of --

11 THE COURT: No, no.

12 MR. KULCSAR: I just want the record to be clear,

13 that I am not attributing some kind of conscious impropriety

14 to defeat the ability of the defense to cross-examine. I am

15 suggesting, though, given the nature of this witness's

16 testimony, it is very difficult for any lawyer, defendant

17 lawyer or otherwise, to cross-examine a witness based on the

18 fact that his testimony is in reality expert testimony, and

19 what I am suggesting is that the proper form, the proper

20 manner, rather, of handling this would have been to give us

21 adequate notice in advance as to the specific nature of this

22 witness's testimony, and in candor I did inquire of the

23 government at the end of last week as to the extent of this

24 witness's -- not knowing this witness's name but the next

25 witness's testimony, understanding the government's concerns

1898

1 up until now in terms of telling the defense more than

2 necessary or legally required. It was my understanding that

3 the witness was going to testify concerning some access that

4 he had with the computer, but not to the extent that he has

5 thus testified, which is clearly to me expert testimony.

6 THE COURT: Expert testimony, my recollection of

7 the definition of expert testimony is, when something is a

8 matter of art or science outside the ordinary ken of the

9 ordinary person, the courts will permit expert testimony.

10 The fact that you and I might be deficient in an area

11 doesn't necessarily make it outside the ordinary ken of the

12 ordinary juror. You know, the fact that you may consider

13 computers to be a mystery -- and other than the word

14 processing function I am not going to claim I know anything

15 about it whatsoever. Computers, they may be a mystery to

16 me. You know, I picture little men inside that box running

17 around plugging in things. But it doesn't matter. It is

18 not outside -- it is something that you can pick up. For

19 God's sake, you can go to Price Cart or Walmart and pick up

20 a book on it, and lots of people are doing it.

21 So to permit the guy to testify to what he did is

22 not expert testimony, as far as I am concerned. It is what

23 he did. The claim that he changed it -- I agree that he

24 changed it, but he changed it in a way which is not

25 something which would make it inadmissible.

1899

1 MR. KULCSAR: My suggestion, your Honor -- my

2 argument is, I think, for example -- I may be wrong --

3 Inspector Taas, whatever his correct title is, had testified

4 about the computer that he turned it on, did the browsing,

5 hit whatever letters are necessary to get a file, got a

6 file, A for Adam and whatever buttons, and Adam came up, and

7 there was a description of what the Adam file is.

8 I would agree, although that certainly is a

9 mystery to me, probably most of the people in the courtroom

10 but a few of us would say that is routine -- I know my

11 seven-year-old son would. What I am suggesting here is that

12 this witness did a lot more than that. He has testified to

13 files being encoded, encrypted, to decrypting files, to a

14 level of expertise that goes beyond that of the average

15 person that is knowledgeable in the area of computers. I

16 say that based on the fact that the people that I spoke with

17 during the night are experts in computers, and their

18 explanations to me were all couched in terms of this applies

19 to certain expertise and a certain particularized knowledge

20 beyond that which is readily available to people who are

21 involved with computers and word processing.

22 Obviously we have the opportunity as part of the

23 defense case to put some evidence in in that regard. But

24 what I am suggesting at this point, in order to properly

25 cross-examine the person who is now on the stand requires

1900

1 expertise beyond the fact of certain information that

2 certainly is within his general knowledge in terms of

3 certain items of evidence that were given to him, how they

4 came about and things like that. I think that that aspect

5 of the cross-examination, if no other relief is afforded the

6 defendants, that the defendants should be allowed to prepare

7 some time to prepare for further cross-examination of the

8 witness beyond the basic cross-examination that certainly

9 could be conducted, and directed solely to the areas of

10 expertise in terms of his encrypting and decrypting the

11 files and the methodology that was used. As I understand

12 it, again what I am told, based on what he testified this

13 morning, the methodology that he was successful in employing

14 is somewhat unusual and circumspect.

15 So I would ask the court at least to consider

16 that, that the defendants be allowed adequate time to

17 prepare for cross-examination with respect to areas just

18 directed towards his expertise in terms of what he encrypted

19 and what he decrypted, and that whatever other

20 cross-examination can be done certainly be done.

21 Thank you.

22 MR. GREENFIELD: May I --

23 THE COURT: Wait a minute.

24 May I ask you, Roy, one thing. Is there anyplace

25 in the rules that you know of which would provide a basis

1901

1 for this application?

2 MR. KULCSAR: I did, your Honor, and as I said, I

3 think part of what you are saying is certainly correct.

4 Based on my lack of knowledge, certain information that this

5 witness imparts, while it speaks of expertise, is probably

6 within the average ken of a lot of people and most people

7 that have some familiarity with computers, which can

8 certainly be imbued to most of society today. What I am

9 suggesting is that there are specific areas of this

10 witness's testimony that are clearly opinion, that are

11 clearly based on his particularized skill and knowledge in

12 an area and that he is testifying before the jury and

13 presenting particularized and specialized opinion evidence,

14 and it is clearly in the areas of encoding and crypting and

15 decrypting, and the methodology for doing that is not

16 something that, as I understand it, many people are facile

17 with.

18 In point of fact, it was my understanding,

19 speaking with the persons that I spoke with during the

20 night, that if in fact this witness were to testify that the

21 decryption he performed was based on not -- not based on

22 information that he put in the hard disk and was able to

23 retrieve from the hard disk in terms of a decryption method,

24 but rather based on independent disks that he created and

25 used, that is something that would have certainly taken a

1902

1 considerable amount of time and a great deal of

2 particularized knowledge and skill. So I am only asking

3 your Honor to allow relief in terms of cross-examining this

4 witness with respect to those areas.

5 THE COURT: What do you want? Let me put it to

6 you, what is your bottom line?

7 MR. KULCSAR: My bottom line, your Honor, in view

8 of the colloquy that we have had, is at least as far as

9 cross-examining the witness with respect to particular

10 methodologies he employed and skills he used to provide

11 decrypted information and the --

12 THE COURT: What would you like? A couple of

13 months to study up on it?

14 MR. KULCSAR: A couple months would be nice but I

15 don't think I was going to ask for a couple of months. I

16 was going to suggest maybe a couple days or a day or two, to

17 allow a witness either to prepare whatever he might prepare

18 in terms of sending it by fax or coming into the city.

19 Certainly not a month or two.

20 THE COURT: Do you want to be heard?

21 MR. SNELL: Your Honor, briefly, to set the

22 record straight, the defense have had the diskette,

23 Government's Exhibit 358, a copy of that, since mid-April of

24 this year. Long before that they have had decrypted --

25 THE COURT: They have had the diskette?

1903

1 MR. SNELL: Yes, sir. So there is absolutely no

2 basis for any argument of surprise here as to the contents

3 of that diskette, being they have had an opportunity to have

4 their experts look at that, how the decoding was done, and

5 there is no basis for any surprise argument.

6 MR. GREENFIELD: If I might be heard with respect

7 to that. You may have the result of a scientific expert but

8 you certainly want to know the basis for the experiment and

9 the testimony being proffered ahead of time so you can

10 properly cross-examine.

11 But in response to the court's question to Mr.

12 Kulcsar, I think 702 and 705 should have given us a basis

13 under the rules for receiving beforehand the information

14 that this witness would have testified and what the nature

15 of his testimony was going to be. We only learned yesterday

16 morning when we got in the courtroom that Mr. Canlas was

17 going to be a witness and what the extent of his testimony

18 was going to be, and we learned that from two handwritten

19 pages of notes, I assume prepared by Mr. Snell because I

20 know his handwriting from a prior case -- I believe I know

21 his handwriting from a prior case. That is the basis of our

22 preparation, two pieces of paper 3 by 5, with a couple of

23 jottings on it.

24 THE COURT: Wait a minute, there is more than

25 that from what I understand. You had the encryption

1904

1 material and the diskette. 703 requires that the basis for

2 the expert testimony be disclosed and apparently it was.

3 MR. GREENFIELD: We were told that this witness

4 would be testifying about a particular thing, tested under a

5 certain set of facts and used under a certain set of facts.

6 We had no idea that he had this on January 9, 1995, for

7 approximately what sounds like a couple hours, gave it back

8 to Colonel Levine, whatever his name is, and then got it

9 back two weeks later -- two days later, and we certainly

10 should have had that.

11 More importantly, your Honor -- and I am sure Mr.

12 Kulcsar meant to bring this up -- we are in New York City,

13 they put some guy on the stand who is, quote unquote, an

14 expert or a computer maven if not an expert in the

15 Philippines. What opportunity do we have in the Southern

16 District of New York now to go check his expertise, to find

17 out if he has the bona fides that he says he had, if he has

18 the education that he said he had, if he took the seminars

19 that he said he took. We are bound by that testimony. If

20 we got that ahead of time like you would get the

21 curriculum -- you know what I mean -- of an expert --

22 THE COURT: Levine is a guy you knew in the

23 Bronx, and it's curriculum vitae.

24 Look, David, the thing is, first of all, in a

25 civil case which most of the times you have expert witnesses

1905

1 appearing -- but let's assume just for a change of pace that

2 you have a doctor come in who testifies blah, blah, blah, as

3 to whatever he was doing. It is not going to -- you know,

4 nobody is going to have guts enough to stand up and say

5 Judge, delay the trial, I need to bring my own doctor down

6 here.

7 MR. GREENFIELD: But we would have gotten our own

8 doctor down here, right?

9 THE COURT: In a criminal case?

10 MR. GREENFIELD: Absolutely, Rule 16.

11 THE COURT: This is a fact witness.

12 MR. GREENFIELD: You don't know if he is being --

13 THE COURT: The doctor in my hypothetical is a

14 fact witness.

15 MR. GREENFIELD: It is not a mystery, as far as I

16 am concerned, it is beyond that. But it is a science. As a

17 science, it is outside the everyday ability of lay folk.

18 THE COURT: He is not bound by that.

19 MR. GREENFIELD: He is not a user in the ordinary

20 sense. He is a guy whose business revolves around

21 computers. He is the head of the analysis group,

22 apparently, in the PNP. This is an expert and we should

23 have gotten ahead of time knowledge that he was coming so

24 that we could have collected into his bona fides. Now we

25 are stuck with what he said. It really goes to one of the

1906

1 motions I made pretrial with respect to being deprived of

2 due process --

3 THE COURT: Don't repeat that.

4 MR. GREENFIELD: -- because of the

5 jurisdictional --

6 THE COURT: I know, don't repeat it. The answer

7 is no. We are going ahead with the cross-examination.


9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1907

1 MR. KULCSAR: Your Honor, having already imposed

2 on the Court for the argument, would it be possible to have

3 about 15 minutes so that I could just give -- I assume Mr.

4 Yousef is going to go first -- whatever nutshell information

5 I got during the night?


7 MR. KULCSAR: Thank you.

8 (Recess)


10 THE COURT: Mr. Yousef.



13 Q Good morning, sir.

14 A Good morning.

15 Q Sir, was it your testimony yesterday that you

16 work as a consultant for the Filipino National Police?

17 A Yes, sir.

18 Q And for how long did you work as a consultant for

19 the PNP?

20 A Since 1987, sir.

21 Q Do you have an office located in the PNP building

22 or complex or whatever?

23 A Yes, sir.

24 Q And is that the Camp Crame?

25 A That is correct, sir.

1908

1 Q Sir, what program languages did you learn or take

2 during the course of your computer study course?

3 A Programming BASIC in the C language, a little C

4 Plus Plus, visual BASIC. I also do some assembly language

5 programming work.

6 Q Now, sir, was it your testimony that at some time

7 on January 9th of 1995 you received a computer?

8 A Yes, sir.

9 Q Do you remember what time it was?

10 A The evening of January 9th, maybe about 9 --

11 between 9 to 10 p.m.

12 Q Now, the computer, as you see it today, does it

13 appear in the same condition when you saw it on January 9th

14 of 1995?

15 A Yes, sir.

16 DEFENDANT YOUSEF: Your Honor, may I ask the

17 witness to be shown Government Exhibit 301.

18 THE COURT: Sure.

19 MR. SNELL: It's 301, your Honor.

20 Q Sir, there was a time in which you switched on

21 the computer and used it, am I correct, on January 9th?

22 A Yes, sir.

23 Q Did you use also the track ball of this computer?

24 A Yes, sir, when I ran Windows.

25 Q Sir, would you take look at the track ball of

1909

1 this computer now. Does it appear in the same condition as

2 when you first saw it on January 9th, 1995?

3 A May I open it?

4 THE COURT: Sure.

5 (Pause)

6 A It looks the same except that this should not

7 come off. I think it got broken or something.

8 THE COURT: In other words, when you say this,

9 you're talking about the ball, the track ball?

10 THE WITNESS: Yes, sir, this, your Honor.

11 Q Was this ball broken on January 9th, 1995?

12 A I'm sure it was not broke at that time because I

13 was able to use it. I don't know if it could still function

14 as it is now, but I don't remember it dropping off -- the

15 ball dropping off when I first used it.

16 Q Was it intact when you first saw it?

17 A Yes, I think so.

18 Q Now, sir, when you first got the computer, did

19 you switch it on and look at the contents of the computer at

20 the same time?

21 A Yes, sir. I had to switch it on to look at the

22 contents.

23 Q Now, sir, does this computer works on electricity

24 or it has a dry cell battery?

25 A It can work on electricity, and it can also work

1910

1 using its internal battery.

2 Q And when you used it on January 9th, 1995, did

3 you use the dry cell battery or the electricity when you

4 functioned the computer?

5 A When I got it, I think the battery was not

6 charged, it was not fully charged, so I had to use the power

7 supply. I could have used this power supply, but I also

8 have spare power supply and an AC adapter handy, so I could

9 have used any of this or my own adapter.

10 Q When you were given the computer, were you also

11 given batteries for this computer?

12 A I don't remember receiving any batteries.

13 Q Were you given any battery chargers?

14 A No, sir. It's just what I saw was what's here

15 now.

16 Q Now, when you first switched on the computer,

17 what did you see on the screen?

18 A Well, when I first turned on the computer,

19 Windows booted up, so I saw a Windows screen. That's the

20 first thing that I saw.

21 Q Could you explain for us, please, if you saw any

22 text or drawings or photographs as you switched the computer

23 on.

24 A Yes, sir. I remember seeing on the screen some

25 sort of a drawing, a tree with some fruits and some

1911

1 graphics. At first I thought it was just lines. I didn't

2 really make anything out of it.

3 Q Did this come out by itself or you pressed any

4 buttons to make it appear on the screen?

5 A When you first turn on the computer, it will

6 appear on the screen. It's part of the Windows opening

7 screen.

8 Q Would you explain the drawing a little bit more,

9 sir, the drawing which comes out when you switched on the

10 computer.

11 A A tree with some red fruits and what appears to

12 be just doodles or scribbles on the bottom.

13 Q Now, sir, is there a digital watch inside the

14 computer?

15 A A digital -- I'm sorry?

16 Q Does the computer have a watch function or a time

17 and date function?

18 A Yes, sir. All computers have their internal

19 system clock that tracks time.

20 Q And does this clock tells you the exact time and

21 date even when the computer is switched off?

22 A Yes, sir. Normally computers have internal

23 batteries so they retain the time even if the power is off.

24 Q Is that a special battery for the clock itself

25 inside the computer?

1912

1 A Yes. Usually most computers have a small battery

2 inside there for that function.

3 Q Did you check to see whether this computer had a

4 battery inside it for its clock when you received it on

5 January 9th, 1995?

6 A No, sir. I did not open the computer, meaning

7 open it up physically to look inside.

8 Q Did you check to see if the date functions or the

9 clock itself was working in the computer?

10 A At that time, sir, I did not think the time was

11 important, so I would have seen the timing in the files, but

12 I did not bother to check if the clock was accurate or it

13 was running.

14 Q Now, sir, if the clock was running and you create

15 a file inside the computer, does the computer assign a date

16 to show the date of creation of that file?

17 A Yes, sir.

18 Q And does it also show a time beside the date?

19 A Yes, sir.

20 Q Now, when you gained access or when you enter

21 into one of the files of the computer, does the computer

22 assigns another date showing when you modified or when you

23 entered into that file?

24 A When you first create the file, it is time

25 stamped.

1913

1 Q And after that, if you entered the file again

2 after a few days, would the computer assign a different date

3 and time to show when you accessed or when you entered into

4 this file?

5 A If that is a new file you created during that

6 time, it will have the new time.

7 Q If you have an old file and you entered into that

8 old file and you changed its contents, does the computer

9 show the date and time for when you entered this file?

10 A If you enter a file, it will contain the original

11 date and time of the file you loaded it in.

12 Q Other than the original date of the creation of

13 the file, does the computer keep any list or does it store

14 anywhere the times and dates when a person gained access to

15 these files?

16 A If you are just reading the files, sir, it will

17 not alter any date. Only if you write on the file will it

18 alter the date.

19 Q Does it store that date somewhere?

20 A Yes, sir.

21 Q Does it store all the dates in which you entered

22 the file and changed its contents or just the last date when

23 you changed its contents?

24 A The last date when you changed its contents.

25 Q Does it store the date if you gained access to

1914

1 the file without changing its contents?

2 A No, sir. If you just read the file without

3 changing anything, it will not alter the date stamp.

4 Q And is it possible for you to check the dates on

5 the files to see when they were last modified?

6 A When you do a directory command, it will show you

7 the name of the file, the date, and the time that it was

8 created or last modified.

9 Q Now, you received the computer on the evening of

10 January 9th, 1995, is that correct?

11 A Yes, sir.

12 Q Now, prior to gaining access to the files, did

13 you check to see when was the last time in which the files

14 which were stored in this computer were modified?

15 A Not consciously checking on each file. I just

16 did a directory. I saw -- I was more concerned about file

17 names than file dates.

18 Q Did you check to see if any of the files which

19 were stored in the computer, if their contents were modified

20 between January 7th and January 9th, when you received it?

21 A No, sir.

22 Q So, if the contents of the files were modified,

23 you would have no personal knowledge to tell that, am I

24 correct, sir?

25 A No, sir.

1915

1 Q When you say no, that means that's incorrect?

2 A Can you repeat the question again, please.

3 Q You don't have any personal knowledge of whether

4 the contents of the files were modified between January 7th

5 and January 9th of 1995, am I correct, sir, just from

6 looking at the last date of access to these files?

7 A If I look at the files, I will see the dates. I

8 will be able to tell when the files were last modified. It

9 will be clearly shown in the date and time stamp of each

10 file.

11 Q Now, on January 9th of 1995, when you switched on

12 the computer, did you write down when was the last date of

13 access or when was the last time when the files were

14 modified prior to gaining access to them?


16 THE COURT: I think he's already answered it.

17 But answer it again. Go ahead, answer it again.

18 Did you write down the last time that you could ascertain

19 that files were modified?

20 A No, sir.

21 Q Prior to gaining access to any of the files, did

22 you make a copy of the computer disk, did you make a copy of

23 all the files which were stored in the computer disk?

24 A Can you repeat the question again, sir.

25 Q When you first switched on the computer, did you

1916

1 make a copy of the contents of the disk, of the computer

2 disk, prior to gaining access or browsing the files?

3 A Do you mean the hard disk, the contents of the

4 hard disk, sir?

5 Q Yes, sir.

6 A No, I did not make any copy of the contents of

7 the hard disk.

8 Q Will you explain what the hard disk is, please.

9 A The hard disk is a storage device inside the

10 computer which contains all the data, the programs in the

11 computer.

12 Q Now, is it correct, sir, that the proper

13 procedure would have been to make a copy of the hard disk

14 before gaining access to the files or storing anything in

15 the computer in order to preserve the integrity of the files

16 and of the contents?

17 A Under normal circumstances, that is the correct

18 procedure, sir.

19 Q Now, sir, I would like to turn your attention to

20 Government Exhibit 355.

21 THE COURT: 355, do you have that?

22 THE WITNESS: No.

23 THE DEPUTY CLERK: Here you go.

24 Q Sir, did you see all of these files which are

25 contained in Government Exhibit 355, did you see all of

1917

1 these files on January 9th of 1995, on the evening of

2 January 9th?

3 A Yes, sir.

4 Q How many hours did you spend in browsing the

5 computer and looking at its contents on January 9th of 1995?

6 A That would be about five hours, sir, from 10 in

7 the evening up to about 3 a.m.

8 Q Now, sir, I would like to direct your attention

9 to the second page of Government Exhibit 355.

10 THE COURT: Do you mean page 2, the one with the

11 2 on the bottom?

12 DEFENDANT YOUSEF: Yes, the page with the 2.

13 THE COURT: Okay.

14 Q Sir, was it your testimony yesterday that when

15 you first saw this file, you assumed that the words looked

16 like Arabic words?

17 A Yes, sir.

18 Q Sir, do you speak or read or write Arabic?

19 A No, sir.

20 Q Do you know what are the other languages use the

21 same letters as an Arabic language?

22 A Well, do you mean the characters that are used,

23 each letter?

24 Q Yes, sir.

25 A Like regular English letters.

1918

1 Q Well, sir, can you tell the difference between

2 Arabic language, Pakistani language, the Turkish languages,

3 the Irani language if they were all written in English

4 letters?

5 A No, sir.

6 Q So how did you come to the assumption at that

7 time that this file was written in Arabic words as opposed

8 to any other language?

9 A As I said, sir, they looked like Arabic, but I'm

10 not really sure. That was only my interpretation.

11 Q And did you reach that assumption at the same

12 time, at the first night when you saw this file?

13 A Yes, sir.

14 Q Now, sir, you also testified that there were some

15 deleted files and you recovered them, am I correct?

16 A Yes, sir.

17 Q Now, is it possible for a person, before erasing

18 a file or deleting a file, that he change its contents, then

19 he would delete it?

20 A Could you repeat the question again.

21 Q Before you delete a file, can you change its

22 contents and then delete it?

23 A It's possible, sir.

24 Q Now, the deleted files which you testified about

25 yesterday and which are contained in Government Exhibit 355,

1919

1 is there any way for you to tell us when these files were

2 deleted? Do you know if they were deleted before January

3 7th or after January 7th of 1995?

4 A Each file will contain the date and time stamp of

5 the last time it was modified. The time it was deleted will

6 not be reflected in the file name.

7 Q Now, sir, I will like to turn your attention to

8 the first page. Is that a deleted file or was that an

9 active file?

10 A This was an active file, sir.

11 Q And what was the file name?

12 A From here, sir, I will not be able to tell the

13 file name, but if I can see the directory of the disk, I can

14 tell you exactly the file name of this file.

15 Q Do you have a list of the contents of the

16 directory of this computer?

17 A Not right now, sir.

18 Q Now, sir, did you print out this page by

19 yourself?

20 A All the printing was done the Wednesday, January

21 11th in the afternoon at the office.

22 Q And did you do the printing yourself?

23 A I was there when it was being printed.

24 Q I'm sorry, sir?

25 A I was there when it was being printed. I had an

1920

1 assistant doing the printing.

2 Q Now, sir, did you specifically print out each of

3 the pages of Government Exhibit 355?

4 A All of this were printed in our office. Well,

5 this are copies of this list, but we did print this in our

6 office.

7 Q And what are they, sir?

8 A I am sorry?

9 Q What are they? What are the rest of the pages

10 which were printed from the computer?

11 A All the printouts we turned over to our director.

12 Q Now, sir, the text as it appears on this page, is

13 it the same as when you printed it out on Wednesday?

14 A As far as I can remember, yes.

15 Q And does it have the same appearance?

16 A I am sorry?

17 Q Does it have the same appearance, sir, the size

18 of the letters?

19 A The font? You mean the fonts, the type of the

20 letters which was used?

21 Q Yes, sir.

22 A Well, in printing text files, the fonts are

23 done -- the type of the characters, the way the characters

24 look, can be different if you use a different printer.

25 Q The one which appears on this page, do they

1921

1 appear to be the same size and the same font when you

2 printed them out on Wednesday of January 1995?

3 A They could look the same, but it's been a long

4 time. I will have -- I don't remember anymore.

5 Q Now, sir, did you compare the pages which are

6 shown in front of you of Government Exhibit 355 with the

7 pages which you printed out on Wednesday of January 1995?

8 A If you mean compare them here?

9 Q Well, whether here or when you were in the

10 Philippines.

11 A I will not be able to compare -- I just saw this

12 document here. The rest of what we printed before, as I

13 said, on that Wednesday afternoon, we printed everything

14 out, and then we turned over those printouts to our

15 director, so I didn't see the printout anymore.

16 DEFENDANT YOUSEF: Your Honor, I have a document

17 I would like to be shown to the witness.

18 THE COURT: Sure. Mark it as defendant's exhibit

19 and show it to the witness.

20 Roy, do you remember what letter we're up to?

21 MS. GRANT: D.

22 MR. KULCSAR: D.

23 THE COURT: Yousef Exhibit D.

24 THE DEPUTY CLERK: Defendant Yousef Exhibit D is

25 marked for identification.

1922

1 Q Now, sir, I would like you to take a look at the

2 document in front of you and compare it with page number 1

3 of Government Exhibit 355. Now, sir, are you familiar with

4 the contents of the documents in front of you, the defense

5 exhibit?

6 A They look similar to this one here.

7 Q And which one looks similar to the one which you

8 printed out on Wednesday of January 1995?

9 A This would be something like our printout.

10 Q Something like what you printed out?

11 THE COURT: This being Exhibit D. Go ahead.

12 THE WITNESS: Exhibit D.

13 DEFENDANT YOUSEF: Your Honor, I would like to

14 offer it into evidence.

15 MR. SNELL: Could we take a look, please?

16 THE COURT: Yes, sure.

17 (Pause)

18 MR. SNELL: No objection.

19 THE COURT: Pass it over to defense counsel.

20 (Pause)

21 THE DEPUTY CLERK: Defendant Yousef Exhibit D is

22 received.

23 (Defendant Yousef Exhibit D received in evidence)

24 Q Now, sir, can you tell us if there are any

25 significant differences between Defendant's Exhibit D and

1923

1 Government Exhibit 355, page number 1?


3 THE COURT: Can you tell us what differences

4 there are? Well, the jury can see the two of them and

5 compare them.

6 A The fonts used are different.

7 Q Now, sir, how many pages did you print out on

8 Wednesday afternoon?

9 THE COURT: This is January the 11th?

10 DEFENDANT YOUSEF: Yes, January 11th of 1995.

11 A I will not be able to tell you the exact number

12 of pages. I can just tell you that there were a lot of

13 pages.

14 THE COURT: Would there be as many as say a

15 hundred?

16 THE WITNESS: A close guess maybe because I

17 remember we printed in duplicates, one did go to our

18 director, and the other set went to my direct superior, Col.

19 Delfin.

20 Q Sir, approximately what's the number, if you

21 know, of the text pages which you printed out on January

22 11th, 1995?

23 A I could give you an estimate, but I will be

24 guessing. Maybe around 40 pages, and then double that

25 because of the duplicates, but I'm not really sure about the

1924

1 exact number.

2 Q And the 40 pages of text which were printed, were

3 they the only pages which you were able to print out from

4 that computer?

5 A Did you say text, text pages?

6 Q Yes, sir.

7 A We did print out pictures, too. When I said the

8 number of pages, these are both the text and the pictures

9 which are combined.

10 Q And where are the pages which you printed on

11 January 11th of 1995? Do you have them with you?


13 THE COURT: He's already answered that one. Next

14 question.

15 Q Sir, the 40 pages which were printed on January

16 11th, were they the only pages which you printed out from

17 that computer?

18 A Could you repeat the question again, please.

19 Q The pages which you printed out on January 11th,

20 Wednesday afternoon, 1995, were they the only pages which

21 you printed out from this computer?

22 A Yes, sir.

23 Q Now, sir, when did you first see the files which

24 appear to be the encrypted?

25 A Are you referring to the encrypted or encoded

1925

1 files, when I first saw them?

2 Q Yes, sir.

3 A On the night of the 9th, when I first got the

4 computer.

5 Q On the night of the 9th?

6 A Yes, sir.

7 Q Were they erased files?

8 A Some of them were erased files, some of them were

9 active files.

10 Q And the erased files, do you know when they were

11 erased?

12 A As I said earlier, sir, looking at the file

13 names, there will be a date and a time stamp that would --

14 that date would indicate the last time the files were

15 modified, but as to the date when they were erased, there

16 would be no indications.

17 Q Now, did you see all the coded files, what

18 appeared to you to be coded files, did you see all of them

19 on January 9th?

20 A Yes, sir.

21 Q Now, was it your testimony that Col. Delfin took

22 the computer on January 10th, 1995?

23 A Yes, sir, the following morning.

24 Q And then he brought it back on January 11th?

25 A Yes, sir.

1926

1 Q Now, when he brought it back, did you check to

2 see if any of the contents or the last date of access of the

3 computer files were modified or not?

4 A The ones that I remembered seeing, sir, were the

5 original files that I saw that night, that were in there

6 that night, the files that I recovered, the files that I

7 thought was important, the files that we printed.

8 Q Did you check to see if any of the last date of

9 access to these files were changed?

10 A I would have noticed any change by just looking

11 at the directory and the date.

12 Q Now, sir, when the computer was brought to you on

13 January 11th, what were you instructed to do with the

14 computer at that time?

15 A To print out the files, the important files, and

16 then to work on the encoded files.

17 Q And did you print out any files from the computer

18 on January 11th?

19 A Yes, sir. I already answered that. We printed

20 the files that afternoon.

21 Q When were you asked to decode these files?

22 A Did you say what was --

23 Q When were you asked to decode the files?

24 A That same afternoon, sir. After our printing we

25 started work on the decoding.

1927

1 Q Sir, the decoded files, were they unintelligible

2 or were they readable files?

3 A Can you repeat the question. The decoded files?

4 Q The coded files which you were asked to decode

5 them, were they unintelligible or were they readable files?

6 A Coded files are unintelligible. You will see

7 random characters, seemingly random characters, and they

8 will be unreadable.

9 Q Now, did you search or browse into the computer

10 to see if there was any file which could have possibly been

11 used by the user of the computer or the owner of the

12 computer to decode these unintelligible files?

13 A There were files that appears like the coded

14 version and the plain text version of the same -- with the

15 same content.

16 Q Did you see any files or any files that could

17 have possibly been used to decode these unintelligible

18 files?

19 A Yes, sir. We saw several programs written in

20 BASIC that seemingly appears to be encryption programs or

21 programs for encoding files.

22 Q I'm sorry, sir, you said BASIC. Will you explain

23 what that is, please.

24 A BASIC, sir, is a programming language. Using

25 BASIC, you can create programs to do data processing, and

1928

1 encoding -- or coding is a data processing application.

2 Q Did you use these files to decode the

3 unintelligible files?

4 A If you mean did we use the programs to decode the

5 unintelligible files?

6 Q Yes, sir.

7 A No, sir, we did not.

8 Q Now, sir, when the computer was brought to you,

9 was anything else, any other accessories of the computer,

10 brought to you also, other than the cable?

11 A Are you referring, sir, to the afternoon of the

12 11th?

13 Q On January 9th, 1995, the first time.

14 A Are there any -- and you are asking if there are

15 any other accessories that came with the computer?

16 Q Yes, sir.

17 A As I said earlier, sir, what I saw here was what

18 I remember to be everything that was given to me that night.

19 Q Did they bring to you at any time any computer

20 diskettes?

21 A No, sir.

22 Q Did they bring to you any scanners?

23 A No, sir.

24 Q Did they bring to you any printers?

25 A No, sir.

1929

1 Q Now, sir, when was the first time when you saw

2 the device which you testified and which you said that can

3 be used to send faxes through the computer?

4 A That same evening, sir.

5 Q And who was the person who gave it to you?

6 A The same person, sir, who brought the computer.

7 Q And did that person tell you that came from room

8 603?

9 A I'm sorry, sir? Can you repeat the question.

10 Q Did that person tell you that this device came

11 from room number 603?

12 A Room 603?

13 Q From the Josefa building?

14 A I don't understand the question, sir. Are you

15 referring to that evening of January 9th?

16 Q Yes, sir.

17 A I don't know of any room 603.

18 THE COURT: Did you know where the computer came

19 from?

20 THE WITNESS: Oh, no, sir. I was not told where

21 the computer came from.

22 THE COURT: Okay.

23 Q Now, sir, were you told anything regarding the

24 circumstances under which the computer and the other items

25 you have identified came to the possession of the Filipino

1930

1 National Police?

2 A No, sir, I was not informed of anything. The

3 only information I got from Col. Delfin was that this was an

4 urgent work that has to be done, so that's the reason why I

5 had to work on it overnight, and that it concerns security

6 preparations for the Pope's visit. That was all I was --

7 that I know.

8 Q Now, sir, you talked about the hard disk area.

9 Will you describe how the hard disk looks like.

10 A Are you referring to the hard disk inside this

11 computer or any hard disk?

12 Q No, the hard disk of this computer, sir.

13 A Physically? You want me to describe how it looks

14 like physically?

15 Q Yes. Just general description of how the hard

16 disk looks like.

17 A Sir, it will be a small device about -- most

18 probably it will be maybe three or four inches in width and

19 maybe another three or four inches in length, about half an

20 inch thick, and it's an electronic device. But I'm not

21 describing what's inside because I never opened the computer

22 and looked physically inside the computer. I am describing

23 a typical hard disk.

24 Q Now, what's the function of the hard disk, sir,

25 inside the computer?

1931

1 A To store data and programs, sir.

2 Q All the files and data, all of them are stored in

3 the hard disk?

4 A Yes, sir.

5 Q Now, is a hard disk, is it a removable device?

6 Can you remove the hard disk and replace it by another hard

7 disk?

8 A Not with this computer, sir. This computer is

9 not designed to have a removable hard disk, although there

10 are hard disks that are designed to be removable.

11 Q Well, can you take a computer to a computer

12 company or any computer workshop and ask them to replace the

13 hard disk of the computer?

14 A I think that is possible, sir.

15 Q Now, sir, if you would take out the hard disk of

16 this computer and replace it with another hard disk which

17 contains different files and then you switch the computer

18 on, would the computer tells you the contents, any of the

19 contents of the previous hard disk?


21 THE COURT: I'll let him answer it.

22 If you know.

23 A If you're saying if the hard disk is replaced and

24 then I turn it on, will I be able to tell the contents of

25 the previous hard disk?

1932

1 Q Yes, sir.

2 A Obviously not, sir.

3 Q Now, sir, if I have a similar computer to the one

4 which is in front of you now, if I have one and I replaced

5 its hard disk with a different hard disk which contains

6 different files and then I turned over the computer to you,

7 when you switch on the computer, would you be able to know

8 at all if the hard disk was replaced or not?


10 THE COURT: No, he can answer it. Go ahead.

11 A As I said, sir, no, I will not be able to tell.

12 Q Are there any specific examinations or tests

13 which you can conduct on the computer in front of you to

14 enable you to know whether its hard disk was replaced or

15 not?

16 A If it can be opened, sir, an inspection or a

17 visual inspection of the inside of this computer would

18 probably tell you if it was -- the hard disk was replaced or

19 not.

20 Q Sir, did you do an inspection yourself to see if

21 the hard disk was replaced after January 7th of 1995?


23 THE COURT: No, I'll let him answer.

24 You didn't open it?

25 THE WITNESS: I didn't open it.

1933

1 THE COURT: Okay.

2 DEFENDANT YOUSEF: Your Honor, could I have one

3 brief moment?

4 THE COURT: Sure.

5 (Pause)

6 DEFENDANT YOUSEF: Your Honor, I would like the

7 witness to be shown what's been marked as Government Exhibit

8 3529B for purposes of identification.

9 THE COURT: 3529B, do I have that here?

10 MR. SNELL: Yes.

11 Q Sir, are you familiar with the contents of this

12 document?

13 MR. KULCSAR: Your Honor, I would like the record

14 to reflect that something else was given to the witness.

15 THE COURT: You're looking at 3529A.

16 MR. KULCSAR: It's the second one.

17 THE COURT: The second one, that's B.

18 A Yes, sir.

19 Q Have you seen this document before?

20 A Yes, sir.

21 Q And when did you see it first?

22 A I wrote this document about two weeks before I

23 got here.

24 Q Two weeks before you --

25 A I arrived here.

1934

1 Q Where did you write it down, sir? Where were you

2 when you wrote this document?

3 A I was at the office at Camp Crame.

4 Q You were in the Philippine National Police

5 office?

6 A Yes, sir.

7 Q Now, sir, what was the reason writing this

8 document down?

9 A When I was requested to appear as a witness, I

10 felt I had to review the dates because this thing happened a

11 long time ago, and I had to be sure about the dates, so I

12 just wrote this down. I confirmed with Col. Delfin. The

13 purpose was just to verify if my recollections of the dates

14 were correct.


16

17

18

19

20

21

22

23

24

25

1935

1 Q Who asked you to write down this report, sir?

2 A This was my own -- I did this on my own.

3 Q Did anyone suggest to you to write it down?

4 A No, sir.

5 Q Sir, does this document reflect your contact with

6 the computer and your activities with the computer?

7 A Can you repeat the question.

8 Q Withdrawn. Sir, would you explain to us what

9 this document is.

10 A This is actually a time line, what I wrote down.

11 This helps me recollect the exact dates. It says here

12 Monday got computer, Tuesday morning return computer,

13 Wednesday worked IC, worked at the Intelligence Command

14 office. And then this is an approximation, the time two

15 weeks before from the time we printed and then worked on the

16 decoding until we got the break.

17 Q Sir, who else was in the room when you wrote this

18 document?

19 A Colonel Delfin and myself.

20 Q Would you explain to us, sir, what January 7

21 means.

22 MR. SNELL: Objection unless there is an offer,

23 your Honor.

24 THE COURT: Might as well at this point. I

25 assume somebody will offer it, one of you.

1936

1 MR. SNELL: I will offer it if he doesn't.

2 DEFENDANT YOUSEF: I offer it.

3 THE COURT: 3529-B received in evidence.

4 (Government Exhibit 3529-B received in evidence)

5 A January 7 it says here, Saturday A -- that is

6 what I presumed to be the date of the arrest. That is what

7 the letter A for.

8 Q I am sorry, the arrest of what, sir?

9 A The arrest of the person who owns the computer.

10 Q Is that something you were told by someone else?

11 A This was when we were discussing with Colonel

12 Delfin -- we were discussing the time line, he was helping

13 me recollect, and this was the time he said of the arrest.

14 MS. BARRETT: Objection.

15 THE COURT: Well, it came out, it's there, I am

16 leaving it. Go ahead.

17 Do you know anything about the arrest personally?

18 THE WITNESS: No, sir.

19 THE COURT: So anything about any arrest was only

20 told to you, right?


22 THE COURT: OK.

23 Q Sir, did you see any televised news conference

24 concerning the incident of January 7, 1995?

25 A January 7, no, sir.

1937

1 Q Sir, when did you turn over the computer to the

2 FBI?


4 THE COURT: First of all, did you turn over the

5 computer to the FBI?


7 THE COURT: Who did you turn it over to?

8 THE WITNESS: To my superior Colonel Delfin.

9 THE COURT: When was that?

10 THE WITNESS: The first time was on the morning

11 of January 10.

12 THE COURT: Then he gave it back to you on the

13 11th, right?

14 THE WITNESS: On the afternoon of the 11th, and

15 then after printing and copying the files to our own

16 computer, he got it the same afternoon, sir.

17 THE COURT: He got it the same afternoon right

18 back?

19 THE WITNESS: Yes, I returned it the same

20 afternoon.

21 THE COURT: OK.

22 Q Sir, do you know any of the names of the files of

23 Government's Exhibit 355? Starting the first page, sir,

24 page number 1.

25 A I can remember some of the file names. I might

1938

1 not be able to associate it with each one because there are

2 a lot of them.

3 Q Could you tell us if you remember on page number

4 1 what this file name was?

5 A By just looking at the content, I would not be

6 able to tell the file name.

7 Q What about the second page, sir?

8 A The same thing, sir. I can make a guess. I

9 remember some file names. But by just looking at the

10 printout, I would not be able to tell you accurately.

11 Q Sir, I would like to direct your attention to

12 what has been marked as Government's Exhibit 3529-C for the

13 purpose of identification. Sir, by looking at this

14 document, does it refresh your recollection as to the name

15 of the file on page number 1 of Government's Exhibit 355?

16 A Government's Exhibit 355, page 1 --

17 Q Yes, sir.

18 A I don't think it is in this list, sir.

19 Q Sir, the page number 2 of Government's Exhibit

20 355, now turning your attention again to Government's

21 Exhibit 3529-C, does that refresh your recollection as to

22 the name of the file on page number 2 of Government's

23 Exhibit 355?

24 A This file, sir -- this list, Government's Exhibit

25 3529-C, is a directory of the diskette that I gave the FBI,

1939

1 as indicated by my initials here, and these are the files,

2 the encrypted, or the coded files, and these two files that

3 you are presenting, sir, 355 -- pages 1 and 2 are active,

4 plain text files. They are not coded files, sir.

5 Q Sir, turning your attention again to Government's

6 Exhibit 3529-C, at the bottom of the first page do you

7 recognize the initials at the bottom of the page?

8 A One of them is mine, sir.

9 Q Sir, did anyone ask you to put your initials on

10 this page?

11 A Yes, sir.

12 Q Who was that, sir?

13 A I remember it was the FBI, sir.

14 Q When was that?

15 A The date here says 3/21/96.

16 Q Where was that, sir?

17 A I remember this to be Camp Crame PNPIC office of

18 Colonel Delfin.

19 Q That was Camp Crame?

20 A Yes, sir.

21 Q In the Philippines?

22 A Yes, sir.

23 Q Do you recognize the other handwriting on this

24 page?

25 A No, sir.

1940

1 Q Sir, were the other initials written down in your

2 presence?

3 A Yes, sir. There is an FBI personnel that

4 initialed it in my presence.

5 THE COURT: Do you remember his name, or her

6 name? Was it a him or her?

7 THE WITNESS: There were three of them actually,

8 sir. Only one signed it, of course.

9 DEFENDANT YOUSEF: I do not have further

10 questions, your Honor.

11 THE COURT: Thank you.


13 BY MS. BARRETT:

14 Q Mr. Canlas, you stated that the hard drive of the

15 computer, the hard disk of the computer contains all the

16 data and programs of the computer, is that correct?

17 A That is correct, ma'am.

18 Q What is the operating system?

19 A DOS and Windows.

20 Q How does the hard drive, the hard disk relate to

21 the operating system?

22 A I don't understand the question, ma'am.

23 Q The operating system, is that where all the

24 application programs that are used in the computer?

25 A No, ma'am. The operating system and the

1941

1 application are two different programs. The operating

2 system is the core, we call it the kernel or the core

3 program, and all the applications communicate with that core

4 program, which is the operating system. So they are two

5 different programs.

6 Q So when you when you are using an application

7 program, you have to go through the operating system?

8 A Yes, ma'am.

9 Q That would include going through the operating

10 system -- that would include going to the hard disk to make

11 changes on any file or directories?

12 A Yes, ma'am.

13 Q You testified about utilities, and these are two

14 programs with various capabilities, is that correct?

15 A Yes, ma'am.

16 Q Is it fair to say that these two programs allow

17 you to manipulate the operating system?

18 A No, ma'am, they will not manipulate the operating

19 system.

20 Q Is it fair to say that it allows you to

21 manipulate information on the hard disk?

22 A You can manipulate information on the hard disk

23 using these tools.

24 Q And that includes retrieving data, as you

25 testified before? Retrieving data from the hard disk?

1942

1 A Yes, these tools are used for retrieving data on

2 the hard disk.

3 Q Also, is it fair to say that it also allows you

4 to alter or modify data on the hard disk?

5 A The program is capable of altering data on the

6 hard disk.

7 Q You talked about deleting files. Deleting files,

8 is that different from permanent removing of files from the

9 hard disk?

10 A Very different, ma'am. Removing would be --

11 well, removing would be something that you take off.

12 Deleting, you don't really take off the data. It's just

13 marked deleted, and the data is still there inside, but it's

14 just marked deleted.

15 Q But when you delete a file, that file is no

16 longer visible to the ordinary user, is that correct?


18 Q And when you view the directory file, you do not

19 see an entry of that file that is marked deleted.

20 A An ordinary directory would not reveal the

21 deleted files. It will not show on the directory.

22 Q But as you just stated, that does not mean that

23 the file has been physically removed, is that correct?

24 A Yes, ma'am.

25 Q Deletion, is it fair to say that deletion is done

1943

1 for various reasons?


3 Q Sir, you use computers every day, is that

4 correct?

5 A Yes, ma'am.

6 Q A computer does not have infinite space, is that

7 correct?

8 A Yes, ma'am.

9 Q It is usual or it is common that a user of a

10 computer would want to delete files to make space, is that

11 correct?


13 THE COURT: No.

14 A Yes, ma'am, that would be normal.

15 Q That is common practice for ordinary computer

16 users, is that correct?

17 A Yes, ma'am.

18 Q Would it be fair to say that a laptop computer

19 generally has less space than a desktop computer?

20 A Are you talking about hard disk space?

21 Q Yes, sir.

22 A It would depend on the hard disk. There are

23 desktop computers with smaller hard disk space than laptop

24 computers, so it is not generally the truth that there is

25 less space in a laptop.

1944

1 Q But is it generally common, in general, that

2 laptop computer generally has less space than desktop

3 computers?

4 A We have a laptop that has bigger hard disk space

5 than one of our desk tops. It is not generally, as I

6 said -- hard disks now are very large and very small, so it

7 can be fitted in a laptop.

8 Q A laptop computer, that is a portable computer,

9 correct?


11 Q That is generally used by a person who is not

12 able to walk around with big desktop computers.

13 A Yes, ma'am.

14 Q When you view a directory, the directory file

15 contains a listing of the directories and files, is that

16 correct?


18 Q Is it fair to say that the directory file is the

19 table of contents, with a listing of all the files?

20 A Did you say table of contents?

21 Q It is like a table of contents?

22 A Sort of.

23 Q When you view the directory, it contains the date

24 and the time, the last time that the file was modified, I

25 believe you testified.

1945

1 A Yes, ma'am.

2 Q And modified means basically that something is

3 added to that file?

4 A Added? Did you say added, ma'am?

5 Q Modified would include adding something to the

6 file, making some addition to the file. Would that be

7 considered modification?

8 A Adding, deleting, changing anything in the file,

9 ma'am.

10 Q And if a file is dated a certain time and date,

11 it could also mean that that was the date that the file was

12 created, is that correct?


14 Q Simply viewing or browsing into the computer does

15 not amount to modifying with respect to time and date, is

16 that correct?

17 A Yes, ma'am.

18 Q It is correct that it doesn't amount to

19 modifying?

20 A Just viewing the files will not alter the date

21 and the time stamped on the file.

22 Q No. When you access the computer, when you

23 access the computer and view files and look through files,

24 is it fair to say that there is no time and date that is

25 recorded?

1946

1 A Could you repeat that, the last part, ma'am?

2 Q Modification, when a file or directory is

3 modified it is reflected on the computer, time and date, is

4 that correct?

5 A Yes, ma'am.

6 Q But if you merely access the computer by viewing

7 and browsing at files, that date and time is not reflected,

8 is that correct?

9 A Yes, ma'am.


11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1947

1 MS. BARRETT: Your Honor, could we break now?

2 THE COURT: You want to take lunch now? All

3 right, ladies and gentlemen.

4 (Jury excused)

5 THE COURT: One of you guys should ask a

6 question -- I am not telling you that you have to.

7 Tell me. We talked about encryption. I have a

8 PC upstairs with Windows and the usual stuff on it, OK. If

9 I prepare a document, can I encrypt it?

10 THE WITNESS: If you have the encryption program,

11 your Honor.

12 THE COURT: It is not something out of the

13 ordinary to have an encryption program on a computer, is it?

14 THE WITNESS: There are some word processing

15 programs that have this feature built in.

16 THE COURT: How about WordPerfect?

17 THE WITNESS: Yes, WordPerfect.

18 THE COURT: So if I decided to keep something

19 from my wife on my home computer, I could encrypt it?

20 THE WITNESS: Yes, your Honor.

21 THE COURT: Just want to check. Thank you.


23 THE COURT: What you may want to think about

24 doing is bringing that out, because you don't want the jury

25 to think that encrypting is something that bad guys do, lots

1948

1 of others do.

2 MS. BARRETT: Your Honor, I believe your Honor

3 sustained an objection when the witness testified about the

4 January 7 arrest date. I believe what he also stated was

5 that the date of the arrest of the person who owned the

6 computer was January 7, if my recollection is correct, your

7 Honor. I would ask that that be stricken from the record.

8 THE COURT: I asked him whether he knew anything

9 about it, and he said no, it was just what he was told. If

10 you want that part of it stricken, sure I will strike it,

11 what's the difference. I think the jury got the picture

12 anyway.

13 MR. GREENFIELD: Do you want an application now

14 or wait?

15 THE COURT: Sure, I will do it now.

16 MR. GREENFIELD: I would move for an application

17 with respect to the cross-examination of cocounsel as to the

18 computer at this point. I don't think it is anything more

19 than a reaffirmation of direct and brought out the Pope one

20 more time, and again I don't think there was any purpose,

21 any focus, any discernible defense. It was certainly

22 antagonistic to my client's defense, and I move for a

23 mistrial.

24 THE COURT: Same ruling.


1949

1 AFTERNOON SESSION

2 2:10 p.m.


4 THE COURT: Okay, Ms. Barrett.

5 REYNALDO CANLAS, resumed.

6 CROSS-EXAMINATION CONTINUED

7 BY MS. BARRETT:

8 Q Mr. Canlas, you referred to the operating system

9 as the core of the computer, is that correct?

10 A Yes, ma'am, the core of the software, software

11 core of the computer. This is to check against the hardware

12 core.

13 Q Did you call it the core program?

14 A Yes, that's correct.

15 Q And I believe you also referred to it as DOS?

16 A That's the operating system. It's called DOS.

17 Q The operating system.

18 Now, application programs that are loaded onto

19 the computer go through the operating system in order to

20 register information on the hard disk, is that correct?


22 Q An example of an application program would be the

23 Word Perfect program?

24 A Yes, ma'am.

25 Q Now, using an application program, for example

1950

1 the Word Perfect program, in order to register information

2 on the hard disk, it goes through the operating system all

3 the time, is that correct?

4 A Yes, ma'am.

5 Q And I believe you testified to the fact that

6 there is an internal clock mechanism that's inside the

7 computer?

8 A Yes, ma'am.

9 Q And that clock device or mechanism, does it

10 automatically record information that is put into the

11 computer?

12 A All files, ma'am, that are created in the

13 computer are time stamped, and that is the reference time,

14 the time provided by the system clock.

15 Q And the system clock, that is in the operating

16 system?

17 A The system clock is hardware, ma'am, it's not

18 software. It's read by the operating system.

19 Q So, in order for the computer to register the

20 time and date of an entry or of any kind of modification,

21 that has to be read by the operating system?

22 A Yes, ma'am, the time is read by the operating

23 system.

24 Q So would it be fair to say that the application

25 program that is used to cause a time to be registered

1951

1 generally goes through the operating system?


3 Q Now, the two programs that are utilities, is it

4 fair to say that they can bypass the operating system and go

5 directly to the hard disk?

6 A The program -- the utilities write data through

7 the operating system also.

8 Q But are there programs like the Norton -- are you

9 familiar with Norton Utilities?

10 A Yes, ma'am.

11 Q Are there programs like Norton Utilities and I

12 believe PCTOOLS, which I believe you testified about, do

13 they have the capability before bypassing the operating

14 system and go directly to the hard disk in order to make

15 alterations?

16 A Writing directly to the hard disk.

17 Q Is that --

18 A It can be done, ma'am.

19 Q And when that is done, there would be no

20 recordation of time, would that be correct?

21 A It's possible, ma'am.

22 Q Now, every computer has a time mechanism, which

23 you just stated, is that correct?

24 A Yes, ma'am.

25 Q And the laptop computer that you examined on

1952

1 January 9th, did that have a time clock, also?

2 A Yes, ma'am.

3 Q When you first had the computer, did you notice

4 whether or not it was operable, if the time clock was

5 operable at the time?

6 A I suppose so, ma'am. I did not see anything

7 unusual about the time when I first turned it on.

8 Q Well, would you say that the time of day that --

9 the time clock was consistent with the time of day, the time

10 and day that you were working on the computer?

11 A I would suppose so, but like any clock or watch,

12 it can be misset. There could be a discrepancy between the

13 actual time and the time in the computer, just like an

14 ordinary watch, could be late, could be advanced.

15 Q There would be no trace to show that that had

16 been done, that that was done, is that correct, that a time

17 had been altered, for example?

18 A No indication, ma'am.

19 Q Now, in using one of the tools, for example, in

20 bypassing the operating disk, could a person with skill in

21 computer use and knowledge, could that person use a tool

22 program to go into the hard disk and say alter the time --

23 when you view a directory or a file, does it generally state

24 the name of the file, the time and date that that file was

25 last worked on, is that correct?

1953

1 A That's correct.

2 Q Now, can you go into the hard disk with a tool

3 program and alter the date and time that that document --

4 that showed that the date and time that that document was

5 last worked on?

6 For example, say I last worked on a document

7 yesterday, July 9th, and I want it to be reflected that that

8 document was worked on on June 1st. Can I, with a tool

9 program, bypass the operating disk, go through the hard disk

10 and change that so the document appears to have been last

11 worked on on June 1st as opposed to July 9th?

12 A A knowledgeable person can do that.

13 Q What did you say, sir?

14 A A knowledgeable person can do that.

15 Q And because the tool program bypasses the

16 operating disk, isn't it a fact that that time that I made

17 that alteration would not be shown or reflected?


19 Q Based on your knowledge. If you know, sir.

20 THE COURT: Part of it's argumentative, but I

21 think the question is otherwise good.

22 The question is, you said you can go through the

23 computer tool operations and change the time that's shown.

24 Now, would that change be in any way recorded on the

25 computer?

1954

1 THE WITNESS: The file will reflect a new date

2 and time.

3 THE COURT: But other than that, nothing else

4 would show, is that correct?


6 THE COURT: Okay.

7 MS. BARRETT: I don't believe that was an answer

8 to my question, your Honor.

9 THE COURT: Okay.

10 Q My question was, if you use a tool program to

11 bypass the operating disk -- I'm sorry, to bypass the

12 operating system, make an alteration in the hard disk, isn't

13 it a fact that no time that -- that the time that I made

14 that alteration will not be reflected?

15 A Oh, you mean there is a file with changed data

16 and the date of that particular file will not be changed; is

17 that the question?

18 Q Well, let's go back to my example. My example

19 was like July 9th I made a modification to a document, but I

20 want to make it appear that the last time that I worked on

21 the document was June 1st. Am I able, with a tool program,

22 to bypass the operating system, go directly to the hard disk

23 and change the time and date that would have been reflected

24 in the computer that the last time and date that the

25 document was worked on was July 9 and make it appear that

1955

1 it's now June 1st; can I do that?

2 A Yes, ma'am.

3 Q And the time that I made that change would not be

4 reflected in the computer?

5 A Yes, ma'am.

6 Q Thank you.

7 And to take that one step further, no one would

8 be able to, without having actual knowledge, know that I

9 actually made that change, is that correct?

10 A Well, if the person doing that will just be

11 working on one file, it's a relatively -- well, an easy

12 thing to do for a knowledgeable person, but if we're talking

13 of the hard disk, changing each date and time of each file

14 would be an enormous task.

15 Q I'm not asking you whether it would be an

16 enormous task. I'm asking you whether or not there would be

17 any trace that I made that alteration on a particular file,

18 on any particular file?

19 A No, I don't think there would be any trace.

20 Q Now, encrypted files, these are files that are

21 text files in codes, is that correct?


23 Q And text files are files that you read, regular

24 readable files?

25 A Yes, ma'am.

1956

1 Q And is it fair to say that generally files are

2 kept in codes or encrypted files are made because the user

3 or the person creating the file would not want anyone to

4 look at that file; is that correct?

5 A That is one purpose.

6 Q So if I'm in my office and I wanted to create a

7 document that I don't want my secretary to read and I wanted

8 to put it in code, I could use an encryption program to put

9 that file in code, is that correct?


11 Q And encryption programs, is that a common use

12 among computer users?

13 A Well, some application programs have this

14 capability. Some word processing programs have the

15 capability to encrypt files.

16 Q Would it be fair to say that it doesn't require

17 an expert to use an encryption program?

18 A Well, you have to be familiar with the word

19 processing program that they're using.

20 Q Is Word Perfect one of the programs with

21 encryption?

22 A It has that feature.

23 Q And it has that capability?

24 A Yes, yes, ma'am.

25 Q How long did you work on the computer, from what

1957

1 date to what date?

2 A The evening of January 9 until early morning

3 January 10. That's from 10 p.m. to about 3. That's about

4 five hours. And then January 11, Wednesday afternoon, for

5 about maybe two hours just to print out everything and then

6 copying the contents to our -- to another computer.

7 Q When did you return the computer?

8 When you started working on the computer on

9 January 11th, did you work on the computer for a period of

10 time?

11 A Can you repeat the question, ma'am.

12 Q When was the last date that you worked on the

13 computer?

14 A January 11th.

15 Q January 11th. You never worked on the computer

16 after January 11th?

17 A Never.

18 Q Now, in viewing a file, does it sometimes show

19 the amount of space that that file takes up?

20 A Yes, ma'am.

21 Q And the word in computers that they use to

22 determine space, is that called bytes, B-Y-T-E-S?


24 Q So if you see a file that shows information that

25 the file has zero bytes and the file is dated January 18th,

1958

1 1996, would it be fair to say that there is no information

2 in that file?

3 A Yes, ma'am.

4 Q Would it also be fair to say that the file may

5 have been deleted on that day?

6 A No, ma'am. If you see the file name there, then

7 it's not deleted, it's just that it's empty, an empty

8 container, something like that.

9 Q Would it be fair to say that information may have

10 been deleted from that file on that date, since there is no

11 information in there?

12 A Normally --

13 Q Would it be possible?


15 THE COURT: Anything is possible, yes. Rephrase

16 the question.

17 Q Would it be a fair interpretation that when you

18 see the information that says zero bytes, which is an

19 indication that there is no information in that file, would

20 it be a fair interpretation that the information was deleted

21 from that file on the date that is marked next to the file?

22 A From my experience in working with computers,

23 this things, we call them null files or files that doesn't

24 contain anything. This files are created when, for

25 example -- an example, when you start -- when you run a word

1959

1 processing program, so you start the word processing program

2 and then you don't continue, like you don't type anything at

3 all and then you just quit. There's a big possibility that

4 it will create a file with a file name, whether it's a

5 temporary file name or a file name that you assign, that

6 will contain nothing because you did not type anything, but

7 you did create the file, but there's nothing inside. That

8 could happen.

9 Q That could happen. Could it also happen that

10 there was information in the file and it was deleted on that

11 date?

12 A Normally when a file is deleted it will not --

13 you can't see the file name, you not even see -- it's

14 nothing because it will not appear in the directory.

15 Q I apologize, sir. I meant information in the

16 file.

17 A I'm sorry.

18 Q You just gave us one interpretation of what that

19 could mean. My question to you -- and I apologize for

20 saying file. I meant information. Is it possible that

21 information could have been deleted from that file on that

22 date; could that be another interpretation?

23 A I think it's possible. Anything is possible.

24 Q And it could also be the date that the file was

25 created?

1960

1 A Yes.

2 Q Now, in viewing also the file, in looking at the

3 directory, if it shows that on January 7th, 1995, 4:19 a.m.

4 is reflected on a file, would it be fair to say that it's an

5 indication that something happened to that particular file

6 at 4:19 a.m. on January 7th, 1995?

7 A If that is the time stamp on the file, then yes.

8 Q Now, referring you to Government Exhibit 355, the

9 booklet that was handed to the jury yesterday, would you

10 look at page 11. I believe your description of this was

11 that it appeared to you to be an ID. Was that your

12 interpretation of this picture?


14 THE COURT: Is your interpretation of this

15 picture whatever it is, that's the question. Don't say

16 "was." Go ahead.

17 MS. BARRETT: Thanks, your Honor.

18 Q Is that your interpretation, that this is an ID?

19 A It looks like an ID, or at least it's proof of an

20 ID.

21 Q Now, so we are clear, could you tell us again how

22 an image gets into the computer. I believe you described it

23 as scanning?

24 A Yes, that's one way, to scan a picture and then

25 convert it into a file and then input it into the computer.

1961

1 Q Now, how does the scanning occur? Do you start

2 with a picture that you have?

3 A Yes, a picture.

4 Q And I believe you testified that you use a

5 device.

6 A Yes, ma'am.

7 Q And it's like a copy machine, a copier?

8 A It operates sort of like a copying machine.

9 Q And you are able to place this image into the

10 computer?

11 A Yes, ma'am.

12 Q Now, look at page 12. Would you say that that's

13 the same photograph?

14 A Yes, ma'am.

15 Q Now, back to page 11, this information that is

16 entered around the photograph, is it fair to say that that

17 information was created by the user who is entering this

18 information to make it appear that this is in fact one

19 document, the words that's typed next to the picture?

20 A The question is not clear to me, I'm sorry.

21 Q Well, the photograph --

22 A This one?

23 Q The photograph on page 12 and page 11, they're

24 the same photograph, correct?

25 A Yes, ma'am.

1962

1 Q Now, is it fair to say that the user, the person

2 that placed the photograph into the computer, created this

3 information, the name, date of birth, so on, et cetera,

4 around this photograph in order for it to appear as though

5 it's one document?



8 A If you would like me to -- I have an idea on how

9 this was made. Would you like the description?

10 Q Sure, the process as to how this is done.

11 A Well, I would assume this document on page 11

12 would -- is composed of several scanned images, such as one

13 scan, and one of the components is this picture on page 12.

14 Q And then the information is just put around this

15 image in order for it to appear like one document which you

16 said looks like an ID?

17 A Yes. Another program would have been used to

18 combine the different images into one, a graphics program.

19 Q Would this be analogous to those cardboard

20 figures that you see at these amusement parks, for example,

21 with the cowboy outfits and then there is a cut out space to

22 put a face in it, and when you take a picture, it comes out

23 looking like you're wearing a cowboy outfit or a bear outfit

24 or something like that? Is that what this is like here,

25 creating around the picture to make it look like one

1963

1 document?

2 A I'm not sure if I -- I don't have any idea on how

3 it was done, if it's really done that way.

4 Q But it's possible. I mean --

5 MS. BARRETT: Withdrawn.

6 Q On page 12 there is no information that's

7 surrounding this photograph, is that correct?

8 A Yes, ma'am.

9 Q And it's the same photograph?

10 A Yes, ma'am.

11 Q Now, was it your testimony that Col. Delfin

12 requested that the computer be returned to him on January

13 10th?

14 A Yes, ma'am.

15 Q And did you inform the colonel at that time that

16 you had not yet finished what you were doing?

17 A Yes, ma'am.

18 Q And did he still insist that he had to have the

19 computer?

20 A Yes, ma'am.

21 Q Did he tell you that he needed to have the

22 computer back at Camp Crame?


24 THE COURT: You're getting into it, yes. I'll

25 sustain it.

1964

1 Q In any event, the colonel did retrieve the

2 computer, is that correct?

3 A Yes, ma'am.

4 Q And the next time you saw the computer was on

5 January 11th?

6 A Yes, ma'am.

7 Q Was that more than 24 hours after it left your

8 hands?

9 A I would say so, about 24 hours.

10 Q To your knowledge, are you the only civilian that

11 the Philippine National Police engaged as a consultant

12 regarding computers?

13 A To my knowledge, yes.

14 Q When they took the computer from you on January

15 10th, are you aware of any other civilian that was allowed

16 to browse through the computer?

17 A No, ma'am.

18 Q As a consultant to the Intelligence Command, do

19 you know members of that group that are familiar and skilled

20 in the use of computers?

21 A I'm familiar with the members of my group. I

22 don't know about the other persons because the command is a

23 big command. There's a lot of personnels.

24 Q When you say your group, what are you referring

25 to?

1965

1 A My office and a programmer and another person.

2 That's the group.

3 Q Are these persons employees of the Intelligence

4 Command?

5 A One is a civilian employee, yes, and another is

6 an enlisted personnel.

7 Q And do you know if any of the personnel that

8 you're familiar with -- are any of them familiar with the

9 computers?

10 A Are they familiar with computers?

11 Q Yes. Are they skilled in the use of computers?

12 A One, the civilian programmer, is.

13 Q Are you referring to people that are employed

14 with the Intelligence Command?

15 A Yes, they're employed with the Intelligence

16 Command.

17 Q Would you consider them an expert?



20 A Expert is a very broad term.

21 Q In your opinion, would you consider the person

22 expert, a very skilled person in the use of computers?

23 A They know how to programs. I would not say they

24 know everything.

25 Q Would they be familiar with tools and utilities?

1966

1 A They would have knowledge of utilities.

2 Q Now, when you saw the computer on January 11th,

3 were you shown printouts?

4 A No, ma'am. We printed -- we were the ones who

5 printed the -- created the printouts.

6 Q Before you started working on it, the first time

7 you saw it, were you shown any printouts that may have been

8 done before you saw it again?

9 A I don't remember seeing or else there's no reason

10 for us to print it out.

11 Q When you saw the computer again on January 11th,

12 was that at Camp Crame?

13 A January 11th, Camp Crame.

14 Q And when you worked on the computer there, were

15 you doing this alone?

16 A I was with my programmer.

17 Q And this programmer, who does he work for?

18 A For the PNP, Philippine National Police,

19 Intelligence Command.

20 Q And what did he do?

21 A Just print. That was my instruction to him.

22 Q He assisted you?

23 A I'm sorry?

24 Q He assisted you?

25 A Assisted? Yes, he was assisting me in printing.

1967

1 Q Now, I believe you stated that you worked with

2 the computer about six or seven hours the first time you had

3 the computer on January 9th.

4 A About five hours.

5 Q About five hours. And you did not have a printer

6 at that time?

7 A A printer? No, no printer.

8 Q In fact, you said you took notes.

9 A Just a page of notes.

10 Q Where are those notes?

11 A I turned it over to Col. Delfin.

12 Q When did you do that?

13 A The morning when he got the computer.

14 Q You turned over the notes to him?

15 A Yes, ma'am.

16 Q Did you have a chance to see those notes again?

17 A No, ma'am.

18 Q Do you know if Col. Delfin turned it over to the

19 government or to the FBI, if you know?

20 A I have no knowledge, ma'am.

21 Q Now, since you did not have a printer the first

22 time that you worked with the computer, you were not able to

23 retrieve any information, is that correct?


25 THE COURT: Were not able to -- I don't know

1968

1 what --

2 MS. BARRETT: To retrieve, your Honor.

3 Withdrawn.

4 THE COURT: Yes. When?

5 Q The first time you worked on the computer you did

6 not have a printer, is that correct?

7 A Yes, ma'am.

8 Q And is it fair to say, then, that you were not

9 able at that time to retrieve any information?

10 A No, I was able to retrieve information.

11 Q When you say retrieve information, you mean you

12 wrote the information down?

13 A Wrote the information down, noted all the

14 important files, identified at least the graphics files, the

15 text files. I saw the encrypted files.

16 Q How many pages were your notes?

17 A A whole page.

18 Q One page?

19 A Yes.

20 Q And how many files would you say the computer

21 contained?

22 A Maybe thousands, but I just jot down the

23 important ones. I didn't have to jot down everything.

24 Q Now, the information that is in Government

25 Exhibit 355, that booklet, that's printed information, is

1969

1 that correct?

2 A Yes, ma'am.

3 Q And that was not retrieved on January 9th and the

4 early morning of January 10th, is that correct?

5 A That was not printed that night, but it was there

6 when I browsed it that night.

7 Q Could you repeat that.

8 A When I browse the computer, meaning examine the

9 contents of the computer, this were the files I saw.

10 Q When did you retrieve this information?

11 A On the evening of January 9th up to the morning

12 of January 10th, five hours that I been working on the

13 computer.

14 Q How many hours did you work with the computer

15 when you started working on it on January 11th?

16 A Just to print it, about two hours.

17 Q Did you leave the computer at any time?

18 A No, ma'am.

19 Q After you printed the information, did you use

20 the computer again?

21 A Just to make copies of the files so I could

22 transfer it to our own computer, our office computer, so we

23 can continue working on the encrypted files.

24 Q Now, when you say you made a copy of the files,

25 are you talking about the hard disk?

1970

1 A Yes, copy the contents of the hard disk.

2 Q How many copies did you make?

3 A Just one for our computer.

4 Q And what happened to the computer after that?

5 A I returned it to Col. Delfin.

6 Q Was a copy of the hard disk given to the FBI?

7 A No, not that I know of, ma'am, and I would have

8 known because -- I would have known because that's my

9 computer in my office.

10 Q So, as far as you know, only one copy was made,

11 and that was made by you?

12 A If you are referring to the mirror copy of the

13 hard disk?

14 Q Yes.

15 A Yes.

16 Q Was any copy made and given to Col. Delfin, do

17 you know?


19 THE COURT: No, go ahead, answer it.

20 A There would be no reason for me to give any copy

21 to Col. Delfin.

22 Q Was a copy of the hard disk given to the FBI

23 sometime in March?


25 THE COURT: I thought we had this.

1971

1 Go ahead, answer it again.

2 A I have no information. What I gave them was a

3 copy of the diskette. It's not the hard disk. It's not

4 everything in the hard disk.

5 Q And what is on the diskette?

6 A What was presented. I don't have it any more

7 here, that diskette.

8 Q Were you the one that prepared the diskette?

9 A Yes.

10 Q Where did you get the information to load it on

11 the diskette?

12 A On the copy on our computer.

13 Q Was it information that was taken from the hard

14 disk?

15 A Yes, a mirror copy of what was taken from the

16 hard disk.

17 Q Was it everything?

18 A No, it's not everything. It's just a floppy.

19 Will not be able to contain everything.

20 Q Now, the laptop is a portable computer, is that

21 correct?

22 A Yes, ma'am.

23 Q The timing mechanism, is that used in connection

24 with any independent battery just for the timing system?

25 A Is your question --

1972

1 Q The internal clock, is there a separate battery

2 that is connected that operates the internal clock in the

3 computer?


5 THE COURT: I think we've been through that, too.

6 Q If the computer is turned off, does the time

7 continue to run?

8 A Yes. With the internal button it will sustain

9 the internal clock.

10 Q An internal battery. So there is an internal

11 battery?

12 A I answered that already.

13 Q Is that internal battery removable?

14 A In some computers. I'm not talking about this

15 computer because I have no knowledge of the inside of this

16 computer, I didn't open it. In some computers it's

17 removable. In some it's soldered in, so it's not readily

18 removable.

19 Q And if it is removable, does that mess up the

20 time so that the wrong information can be -- so that the

21 wrong time can be attributed to the time that documents or

22 files are worked on?

23 A I presume it would reset the clock.

24 MS. BARRETT: I have no further questions.


1973

1 CROSS-EXAMINATION


3 Q Sir, to clarify a few matters, first off, when

4 you worked on the computer, what you say was January 9 into

5 January 10, the early morning hours, did you in any way

6 modify any of the informational files that were contained in

7 that computer?

8 A No, sir, no modification.

9 Q Did you in any way delete any information that

10 was involved -- withdrawn.

11 Did you in any way delete any information or

12 files within that computer?

13 A No deletion, was made, sir.

14 Q And if somebody says you did, would you say they

15 are wrong?

16 A I am sorry.

17 Q If somebody says you did, would you say they are

18 wrong?

19 A Did what, sir?

20 Q Deleted information from the computer.

21 A I would be wrong? I am sorry.

22 Q I will restate the question. If somebody says

23 that on January 9 into January 10 that you deleted

24 information from the computer, would that person be wrong?

25 A Deleted -- well, if you deleted something --

1974

1 Q I am asking you, did you delete something that

2 evening?

3 A Not that I remember, sir.

4 Q You are somebody who has been in the computer

5 field since 1978, is that right?

6 A Yes, sir.

7 Q You certainly were being careful with the

8 computer that day, were you not, sir?

9 A I didn't get the question.

10 Q You were being careful with the computer that

11 day, were you not, sir?

12 A Careful under normal circumstances, sir.

13 Q You certainly were not going to delete

14 information from the computer, would you?

15 A I have no reason to delete any information, sir.

16 Q And you had no intent to delete any information.

17 A Yes, sir.

18 Q And you had no purpose to delete any information.

19 A Yes, sir.

20 Q Did you delete information that night?


22 THE COURT: Ask and answered.

23 Q Sir, if I might, did you prepare a report for

24 your superiors at Camp Crame as to what you did on the

25 evening of January 9?

1975

1 A Just the notes I jotted down while browsing the

2 computer.

3 Q And that is that one page that you just referred

4 to?

5 A Yes, sir.

6 Q After January 9, 1995, did you ever see that

7 piece of paper again?

8 A Not that piece of paper again, sir.

9 Q On January 11, 1995, did you prepare any notes?

10 A No notes, sir. Just printed the contents.

11 Q Sir, prior to testifying here the last few days,

12 did you review the work or findings of any other computer

13 experts?

14 A I am sorry.

15 Q In this case.

16 A Did I review any work on --

17 Q Done by any computer expert in this case?

18 A On this particular computer?

19 Q With respect to this particular computer.

20 A No, sir.

21 Q In the year 1995, were you interviewed by anybody

22 from the Federal Bureau of Investigation with respect to

23 your work in January of 1995?

24 A Yes, sir.

25 Q Who was that? Do you recall?

1976

1 A I remember three of them. I am not sure, I think

2 Mr. Mike Garcia was there and two other guys.

3 Q Do you remember when this occurred?

4 A About a month after, I think.

5 Q Do you know where it occurred?

6 A Camp Crame.

7 Q Whose office did it occur in?

8 A Colonel Delfin's office.

9 Q Was he present?

10 A Yes, sir.

11 Q Incidentally, you did not know of the existence

12 of this computer prior to your phone call from Colonel

13 Delfin -- am I pronouncing his name correctly?

14 A Delfin, yes.

15 Q Delfin. You did not know of this computer prior

16 to his phone call to you on what you believed to be January

17 9, correct?

18 A Yes, sir.

19 Q You do not know who may have handled it within

20 the PNP prior to January 9?

21 A Yes, sir.

22 Q And you don't know who may or may not have made

23 entries into that computer prior to January 9?

24 A I would not have any knowledge, sir.

25 Q You had it for a short period of time from

1977

1 January 9 into the 10th, you believe, as to the date?

2 A Yes, sir.

3 Q You gave it back to the colonel and you got it

4 back, I think you said, a couple days later, right?

5 A A day later, sir.

6 Q Did you previously say it was two days later?

7 A That's the 10th, and then I got it again on the

8 11th.

9 Q Did you previously tell somebody while being

10 interviewed in this matter that you got it a couple days or

11 so later?

12 A I don't remember saying that, sir, a couple of

13 days.

14 Q Or two days or so later.

15 A No, I don't remember making any statement.

16 Q You didn't create any official report in this

17 case, correct?

18 A Sir, we don't create the reports, we get the data

19 and then we pass it over, and there is another group that

20 makes the reports on the contents.

21 Q Do you know if a report was created with respect

22 to your findings by Colonel Delfin?

23 A I didn't get the question, sir.

24 Q Do you know if the colonel created a report with

25 respect to your findings?

1978

1 A I am sure he did, but I cannot be sure.

2 Q You are sure you can't be sure?

3 A Well, that is normal procedure. I am just

4 assuming he did his work.

5 Q Have you seen one in this case?

6 A No, sir.

7 Q In the year 1996, prior to coming to the United

8 States to testify in this case, were you interviewed in the

9 Philippines by any member of the Federal Bureau of

10 Investigation?

11 A Yes, sir.

12 Q Who was that?

13 A I think it was Frank.

14 Q Are you not sure? Not that you are required to

15 be.

16 A I am not very good at names, sir. Faces, then I

17 forget the name.

18 Q When do you think this occurred?

19 A About March of this year.

20 Q Is that the time that you turned over that

21 diskette that you signed?

22 A Yes, sir.

23 Q That would be March 21, 1996?

24 A Yes, sir, that's the date on the diskette.

25 Q That occurred in your offices at Camp Crame?

1979

1 A Yes, sir.

2 Q Or was it in the colonel's office again?

3 A I made the copy in my computer in my office, and

4 then I turned it over to them in Colonel Delfin's office.

5 Q Is that the only time in the year 1996 that you

6 had an opportunity to be interviewed by somebody from the

7 FBI in the Philippines?

8 A Yes, sir.

9 Q It happened what, that's four months or so ago,

10 correct?

11 A March, yes.

12 Q How long were you in the agent's company?

13 A With the Philippine National Police?

14 Q That day in March 1996.

15 A How long was I that day?

16 Q Yes.

17 A I remember that was the morning --

18 Q It is my question, I am sure, that is confusing.

19 I withdraw it.

20 On that day in March of 1996 that you made a copy

21 of the diskette and you took the copy in to Colonel Delfin's

22 office -- do you remember that?

23 A Yes, sir.

24 Q There was an FBI agent there.

25 A A couple of them.

1980

1 Q And you believe one of them may be Agent

2 Pellegrino?

3 A I think so, sir.

4 Q But you are not so sure because you are not that

5 good at names and faces?

6 A Yes, sir.

7 Q How long were you in the office of Colonel Delfin

8 when that diskette was turned over?

9 A Maybe an hour.

10 Q Were you interviewed at that time, if you recall?

11 If you don't recall -- questions like that always have "if

12 you recall" on the end of it.

13 A Yes, they asked me about the diskette.

14 Q Then there came a time when you learned you would

15 be testifying in this matter in the United States.

16 A Yes, sir.

17 Q When did you first learn that?

18 A Around the same time, I think.

19 Q Who informed you of that? Colonel Delfin again?

20 A Yes, sir.

21 Q He is with the Intelligence Command?

22 A Yes, sir.

23 Q And he is your immediate superior?

24 A Yes, sir.

25 Q Is your office right next door to his?

1981

1 A No, sir, his is in the second floor, adjacent

2 building. Mine is in the lower level.

3 Q By the way, you keep -- I shouldn't say keep. I

4 withdraw that.

5 You have referred previously to your director. I

6 don't know that he has been identified. Who is your

7 director?

8 A Colonel Garcia, sir.

9 Q What is his first name?

10 A I just know him as a Colonel Garcia.

11 Q That may be his first name.

12 A No, sir, that's a family name.

13 Q You learned in March or so of '96 that you are

14 coming here and then you have a conversation, about two

15 weeks before you get here, with Colonel Delfin, is that

16 right?

17 A Yes, sir.

18 Q Prior to March of 1996, in the conversation you

19 had with Colonel Delfin two weeks before you leave for the

20 United States, do you have any conversations at all with

21 anybody with respect to what you did back in January of

22 1995?

23 A Not that I remember, sir. It is just travel

24 preparations, that's all.

25 Q Would it be fair for me to say, and correct me if

1982

1 I am wrong, based on what you have previously testified to,

2 that you and your staff in the PNP do most of the computer

3 programming and/or printing or computer work for the PNP

4 Intelligence Command?

5 A Not all the computer work, some of the computer

6 work. Not everything. There are other regular office

7 computers. Computing work are done by secretaries.

8 Q Are there other --

9 THE COURT: Make it programming. Do you do all

10 the programming for the Intelligence Command?

11 THE WITNESS: Not even all the programming, your

12 Honor. Application programs like data bases, accounting

13 programs. Sometimes they just buy kind of softwares.

14 THE COURT: But other types of programs intended

15 solely for the -- you know, not commercial but intended

16 solely for the PNP Intelligence Command, you do it, right?


18 THE COURT: And if there is any analysis of a

19 computer to be done around the Intelligence Command, are you

20 the guy that gets the job?

21 THE WITNESS: That is the function of our group,

22 sir.

23 Q The point I am trying to get at also, and the

24 judge helped us get there, is, you work specifically, do

25 that work that you have just described specifically only for

1983

1 the Intelligence Command?

2 A Yes, sir.

3 Q There are any number of other commands within the

4 PNP?

5 A Yes, sir.

6 Q Are there like-type people working for those

7 commands doing similar work that you are doing?

8 A I have no information about that, sir.

9 Q There is a computer unit in the PNP, is there

10 not?

11 A Yes, sir.

12 Q Is that located at Camp Crame?

13 A Yes, sir.

14 Q That is a sophisticated operation, is it not?

15 A I don't have any idea, sir.

16 Q You don't have access to it?

17 A I don't have access.

18 Q It is basically off limits to civilians, is it

19 not?

20 A Not really, sir. I am not sure. I would be

21 guessing but I have no reason to go there.

22 Q In the almost ten years since you have been with

23 the PNP, you have never been to the computer center of the

24 PNP, have you?

25 A Maybe a couple of times, but not to really stay

1984

1 long, not even to enter and browse around.

2 Q Sir, two weeks before you arrive here you sit

3 down with the colonel and you have some conversation with

4 him, is that right?

5 A Yes, sir.

6 Q That is approximately what date, if you remember?

7 A Around May, middle of May, sir, because I was

8 originally scheduled to arrive here June 9. So that is

9 about two weeks before June 9.

10 Q So sometime in May, toward the end of May, middle

11 of May, is that what you are saying?

12 A Sometime in May.

13 Q You don't have a specific recollection?

14 A No specific recollection, sir.

15 Q This is the first time you have testified in the

16 United States?

17 A Yes, sir.

18 Q Have you testified in any trials in the

19 Philippines?

20 A Only once, sir.

21 Q When you sat down with the colonel sometime in

22 May, or maybe toward the end of May, you determined or he

23 suggested that you work out this time line, is that a fair

24 statement?

25 A No, sir, he did not suggest -- actually, it was

1985

1 my own volition. I wanted to refresh my memory because this

2 event happened a long time ago and I am not also very good

3 at dates, obviously with faces also. I have to refresh my

4 memory, so actually I called the colonel and I requested the

5 meeting.

6 Q And you said that you needed his help to help

7 refresh your recollection?

8 A Yes, sir.

9 Q It was your idea to have him help you refresh

10 your recollection?


12 Q And the first thing you ascertained, I would

13 assume, is when this computer was allegedly seized, is that

14 right?

15 A Yes, sir.

16 Q Did you know that of your own volition --

17 withdrawn.

18 Did you ever know prior to that meeting with

19 Colonel Delfin when the computer in fact was seized?

20 A I have an idea, sir, but as I said, I am not sure

21 about the date, the exact date. I could be off one a day or

22 two days. That is why I wanted to be sure.

23 Q If you are off a day or two, that could change

24 the whole equation did here, could it not?


1986

1 THE COURT: Are you sure now the day is correct?


3 Q And that date was supplied to you by the colonel,

4 wasn't it?

5 A No. The date of the arrest that is the start of

6 the time line?

7 Q Yes.

8 A Yes, sir.

9 Q You had no idea when this computer was seized at

10 any time until you spoke with the colonel approximately two

11 weeks after you left the United States.

12 A No, sir. Beforehand I did, but I didn't really

13 register much because I have no idea I would be presented as

14 a witness, and a year later I was asked, so I had to ask and

15 just confirm. I have the idea but I just wanted the

16 confirmation.

17 Q What you are saying is that up until March or

18 more than a year, almost 14 months after you were asked to

19 do this task you had no particular reason to even recollect

20 these events once you did your task for the Intelligence

21 Command.

22 A No, sir, it's just work for me.

23 Q It was work, it was like any other day at work,

24 correct?

25 A Yes, sir.

1987

1 Q You created no reports?

2 A I am sorry.

3 Q You created no official report?

4 A No official report.

5 Q And then 14 months later is when you first

6 learned that you may be asked to recall what happened back

7 in January of 1996 -- '95, excuse me.

8 I deleted the 6 and made it a 5.

9 A I am sorry. I lost the question.

10 MR. GREENFIELD: Could we have it read back?

11 THE COURT: Sure.

12 (Record read)

13 A When I learned that I was to be presented as a

14 witness, yes.

15 Q You may be presented as a witness is what you

16 first learned, is that right?

17 A Yes, sir.

18 Q And then you find out in May of this year that

19 you most probably are coming to the United States, and that

20 is when you first sit down with the colonel and you refresh

21 your recollection as to what occurred?

22 A Yes, sir.

23 Q Your salary is paid by the PNP, is that correct?


25 Q And you are the, if I might give you a title --

1988

1 if it is the wrong title, please change it. You are the

2 chairperson or the boss of that computer unit of the PNP?

3 A It is really not a big group, sir, a group of two

4 people and myself.

5 Q But you are in charge?

6 A I am in charge, sir.

7 Q It is not a civil service position within the

8 PNP, it is an employee situation, is that not right?

9 A No, sir. You mean civil service?

10 Q Yes.

11 A Like an official designation?

12 Q Correct.

13 A My designation is just a consultant.

14 Q So you are not within the civil service system of

15 the PNP?

16 A No, sir.

17 Q You are not a police officer with the PNP?

18 A I am not a police officer, sir.

19 Q And if the PNP for whatever reason decided that

20 they didn't want you to work tomorrow, they could fire you

21 tomorrow, isn't that right?

22 A Right now I am just on call. I don't work for

23 them regularly any more.

24 Q But you did back then.

25 A Even during the time of the -- when I first got

1989

1 the computer I was just on call back then and not on a

2 regular basis. I don't report on a regular basis any more.


4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1990

1 THE COURT: Do you want to take a break now?

2 MR. GREENFIELD: I think that would be helpful.

3 THE COURT: OK, ladies and gentlemen, step down.

4 (Jury excused)


6 THE COURT: Do you expect to be much longer?

7 MR. GREENFIELD: Yes, your Honor.

8 THE COURT: The rest of the afternoon?

9 MR. GREENFIELD: Maybe just short of it. I am

10 not really sure.

11 THE COURT: Do you have somebody here?

12 MR. SNELL: We do have somebody, just in case.

13 MS. BARRETT: May we know who it is?

14 (Recess)

15 (Jury present)

16 (Witness resumed)


18

19

20

21

22

23

24

25

1991


2 Q Sir, when Colonel Delfin came to your office on

3 the evening of January 9, you believe, did he bring anything

4 other than the items that you identified on direct

5 examination?

6 A No, sir.

7 Q You talked about using some software on the

8 evening of January 9. Do you recall, did you have that

9 software or was that given to you by the colonel?

10 A No, sir.

11 Q No being you didn't have your own software?

12 A No, I have a home computer. I have copies of

13 that software in my home computer.

14 Q And your home computer doesn't have a printer?

15 A It does have a printer. It is an ordinary dot

16 matrix printer.

17 Q Did you print out through your own printer that

18 night that which you viewed?

19 A No, sir, I did no printing.

20 Q Sir, how many directories, if that's the right

21 word, and correct me if I am wrong -- how many directories

22 are there in this particular computer?

23 A I do not have an exact count, sir, but there is a

24 lot.

25 Q To your recollection, if you recall, did you view

1992

1 all the different directories that evening?

2 A Yes, sir, I had to be thorough. I had to look at

3 everything.

4 Q To the best of your recollection, how many

5 different directories are on that computer that evening when

6 you first get it from the colonel?

7 A I do not have an exact count, sir. I would be

8 guessing if I give you an answer.

9 Q Your best estimate.

10 A Anywhere from 50 to 100 maybe.

11 Q And each directory has a certain number of files

12 in it, is that correct?


14 Q Assume the number is 50, 50 directories. Do you

15 have a recollection as you sit on the stand how many

16 different files were in each of the 50 directories?

17 A Each directory would contain a different number

18 of files. It will not be evenly distributed among the

19 directories. It will be, some directories would contain

20 maybe less than 10 files, other directories would contain

21 more than 10 files, maybe 10 files.

22 Q I believe you testified the other day that you

23 looked at all the files in this computer that evening.

24 A Yes, as much as I can remember, I did try to be

25 thorough to look into everything.

1993

1 Q Would it be fair to say, and correct me if I am

2 wrong, I think you said earlier that there were thousands of

3 files in this computer.

4 A A figure of speech, sir, meaning there is plenty,

5 or there is hundreds or thousands.

6 Q Hundreds of thousands?

7 A No, no, hundreds, maybe thousands. I say

8 thousands just to describe that there is a lot of thm.

9 Q What is your best recollection as to the number

10 of files you accessed and browsed, if those are computer

11 terms, on that evening in January in your home in 1995?

12 A Fifty directories, maybe another number each of

13 15 files each, maybe 20. Maybe about close to a thousand,

14 but this I can't be sure.

15 Q It could be more, could be less?

16 A Could be.

17 Q Could be a lot more in fact?

18 A Could be.

19 Q Sir, would it be fair to say that each one of

20 those files is at least one page long?

21 A Yes, sir.

22 Q You have no idea what you are looking for other

23 than you have been asked to look into a computer you know

24 nothing about.

25 A Sir, I am looking for information, so when I

1994

1 browse into the computer I would definitely skip the

2 programs which I can clearly identify programs, program

3 files. So I will skip maybe immediately 30 percent of them.

4 Some files are obviously not -- do not contain information

5 and I just go, pass by them.

6 Q But each time you decide to look into a file, you

7 have to call that file up.


9 Q And some of those files contain a number of

10 pages.

11 A Yes, sir.

12 Q And this whole process of checking all the 50 or

13 so, to your recollection, directories, and the average of 15

14 to 20 files less the percentage you just applied, took you

15 five hours at the most, is that a fair statement?

16 A About five hours, sir. That is my estimate.

17 Q And at that time you did not make printed copies

18 of any of the matter which you saw on the screen of the

19 laptop.

20 A No printed copies, sir.

21 Q And the notes that you made consisted of no more,

22 as far as you can recall, than one page of paper.


24 Q And on that page you basically noted what you

25 recall would be the files of interest to you?

1995

1 A Yes, sir.

2 Q Or maybe the files that would be of interest to

3 somebody at the PNP.

4 A I am not --

5 Q You were creating this list and doing this

6 function not for your own enjoyment, you were doing this as

7 an order, if that's the right word, from your superior at

8 the PNP.

9 A Yes, sir, I look for files, I jot down anything

10 that may contain information, and if there are -- like

11 address and telephone numbers, I jot it down, too.

12 Q When you saw a card, did you draw a picture of

13 the card and put that information on it?

14 A No, sir, because I know that in the morning I can

15 just go to the office and print it. No need to go into that

16 kind of detail that evening.

17 Q So you didn't spend very much time looking at

18 like the different cards or photographs, you just wrote a

19 number down when you saw a photograph or card -- the file?

20 A The file name, sir. I marked the file names,

21 important files and deleted files.

22 Q And when you wrote that file name down, that's

23 what your interest was, not that it was on the screen,

24 merely that it was a photograph or a card or a graphic or a

25 text, and you wrote down the file number.

1996

1 A Yes, sir. As I see the files and I think it is

2 important, I write them down.

3 Q And you very quickly browse through this

4 information.

5 A Some of them, I dwelled more time on them

6 depending on the content.

7 Q And that is the text, I would assume.

8 A Some text, some pictures.

9 Q Sir, the next day you give the computer with

10 whatever information you have as to, quote unquote, the

11 locations of certain filings over to the PNP Intelligence

12 Command.

13 A To Colonel Delfin, sir.

14 Q He represents, as far as you are concerned, the

15 PNP Intelligence Command.

16 A Yes, sir.

17 Q He has that computer in his possession, as far as

18 you know, for anywhere from a day to a day and a half.

19 A Yes, sir.

20 Q What happens to that computer as to its content

21 is obviously unknown to you.

22 A Yes, sir.

23 Q But you get it back a couple of days later or 36

24 hours or so later.

25 A Yes, sir.

1997

1 Q And then you run the print mode and you do the

2 copy mode and you do what you do for another two weeks with

3 this computer.

4 A No, not with that computer, sir.

5 Q With the mirror image of the computer?

6 A A copy of the contents of that computer.

7 Q Incidentally, with respect to the clock, this is

8 a DOS system, am I correct, that we are dealing with here?

9 A The computer has a DOS operating system and

10 Windows operating system.

11 Q If somebody were inclined to do this -- you were

12 asked certain questions previously by another lawyer, but as

13 to time and date, if somebody wanted to they could call up

14 the time on the DOS system and reset that time to any date

15 or time they want, isn't that right?

16 A Change the system time?

17 Q Yes.

18 A Like an ordinary watch, it can be set, sir.

19 Q And you reset it to this new time, correct, if

20 you want to reset it to the new time? You can set it to any

21 time and date that you want on that watch?

22 A It can be done, sir.

23 Q And then you can call up any application that is

24 within the computer and apply that changed time to that new

25 application and save that date and time?

1998

1 A If you create the document, yes, it will have

2 that time.

3 Q And after you do that, you can just tell the

4 computer go right back to the present time, couldn't you?

5 A Yes, you can set it again.

6 Q And there is no way that anyone can ascertain

7 that that occurred.

8 A Maybe if we go into the internals of the program

9 you might find something, but I am not familiar with that

10 detail, sir.

11 Q When you were in your home on, you believe to be

12 January 9 to the early morning hours of the 10th, and you

13 have this computer that you have identified as, I think 301,

14 is anybody else present besides yourself?

15 A Just my wife, who was sleeping.

16 Q We don't want to get her in here. I meant

17 anybody from the PNP.

18 A No, no, sir.

19 Q You had exclusive possession in that period of

20 time?

21 A Yes, sir.

22 Q I have asked you about the FBI. In the year

23 1995, after you had the meeting with the FBI did you have

24 any meetings at all with members of the PNP with respect to

25 what occurred?

1999

1 A No, sir.

2 Q Is the same true for 1996, other than the little

3 meeting you talked about with the colonel two weeks before

4 you leave for the United States?

5 A Yes, sir.

6 Q This mirror image that you talked about that was

7 created by yourself on, you believe to be September 11, is

8 that called a backup system?

9 A It could be considered a backup.

10 Q When you had this computer on January 9 or so,

11 were you requested or ordered to make a backup system before

12 you did anything with the computer?

13 A No, sir.

14 Q You identified some graphics in court yesterday

15 in that exhibit, I think it is 355. Do you remember that?

16 A Yes, sir.

17 Q Do you recall what software or what program or

18 what application was used to produce those graphics?

19 A I saw a couple of graphic application programs,

20 Promagic something, and another one.

21 Q Do you recall the other names besides -- what did

22 you say, something magic?

23 A The name of the program, if I recall, is

24 something like Promagic.

25 Q Promagic, and anything else? Any other programs

2000

1 that can create these graphics?

2 A Photostyler or something.

3 Q Photo Silence?

4 A Photostyler. I am not sure about the exact names

5 of the program.

6 Q What are the different means or ways in which a

7 user can get a graphic into the computer?

8 A Scanning would be one of them.

9 Q Is that the most common way?

10 A It's a common way, yes.

11 Q Any other way?

12 A There are digital cameras now that don't have

13 films, and you can just click and direct it to the computer.

14 That's another way.

15 Q Did you ascertain from Colonel Delfin or anybody

16 else in Intelligence Command if a scanner was recovered at

17 the search site?


19 THE COURT: The form is bad.

20 Did you see any scanner that was produced to you

21 by the colonel and said I found this with it or somebody

22 found it with it?

23 THE WITNESS: I did not see any scanner, your

24 Honor, but there is a scanner program in the computer, a

25 scanner software.

2001

1 Q Standard software?

2 THE COURT: A scanner software.

3 A Scanner software.

4 Q I am sorry.

5 A So this goes in under the scanner hardware. The

6 scanner goes into the computer.

7 Q Without the software you --

8 A You need the software and the hardware to make it

9 work.

10 Q You need a scanner?

11 A Yes, a scanner hardware and a scanner software.

12 The scanner software is there.

13 Q When is the last time you had any access to the

14 computer itself?

15 A January 11, sir.

16 Q When is the last time you had any access to

17 review of the printout of the computer itself that occurred,

18 I believe you say, on January 11 of '95?

19 A The printout, sir?

20 Q Yes.

21 A Here, sir.

22 Q Excuse me.

23 A You mean when was the last time I saw the

24 printouts?

25 Q The printouts or the directory.

2002

1 A Of the computer?

2 Q Yes.

3 A There is a copy of the computer at the office of

4 Attorney Snell.

5 Q My question to you, sir, is, when is the last

6 time you saw the product of -- withdrawn.

7 When is the last time you saw the work product

8 that you produced on January 11?

9 A January 11, sir.

10 Q And when you came here, did you review any

11 similar or what you believed to be similar files produced in

12 the United States?

13 A This, sir.

14 Q When you say this, you are talking about 355 in

15 evidence?

16 A Yes, 355, sir.

17 Q Other than 355 in evidence, did you review a copy

18 of a directory of files while in the United States?

19 A Yes, sir, at the office of Attorney Snell.

20 Q When was is that?

21 A Three days ago.

22 Q When you looked into that directory, were you

23 looking specifically for any entries that may have occurred

24 on January 9 or 10 of 1995?

25 A No, sir.

2003

1 Q Did you notice any?

2 A I know that the computer I am working on is not a

3 perfect copy of the original, so I didn't really try to look

4 for any major changes.

5 Q Did you look at the directory of entries as it

6 existed three days ago?

7 A What I saw in that computer was very similar to

8 the original, contents of the original.

9 Q When you say very similar, you certainly didn't

10 commit the computer directory to your mind and remember it

11 some 18 months later, did you?

12 A No, sir. This is just my recollection.

13 Q You are saying this is basically what you think

14 it was back then but you certainly can't be certain, can

15 you?

16 A The important files, sir, I am certain, because I

17 still remember that. The pictures I vividly remember. The

18 other files, as I describe it, I vividly remember.

19 Q And on January 11, how many pages do you print

20 out of all the files that you allegedly saw on January 9?

21 How many pages is it?

22 A We make duplicates -- this is just an estimate --

23 maybe 50 pages, plus the duplicates goes to a hundred.

24 Q And you found all those particular pages, you

25 say, within a few hours on January 9?

2004

1 A Yes, sir.

2 Q As you sit on the stand now, do you know who it

3 is who made the entries in that computer?

4 A No, sir.

5 Q Do you know when those entries actually were put

6 in?

7 A There are dates in the files, sir, so I would

8 imagine, I would suppose that those are the dates when they

9 are created.

10 Q I am sorry. You are finished?

11 Those are the posted dates, isn't that right?

12 A Yes, sir.

13 Q Those dates are very easily subject to

14 manipulation and change.

15 A I have to qualify "easy." Easy if you are just

16 changing one file, but if you have to change a hundred

17 files, it is not really that easy.

18 Q But if you are changing in one particular area it

19 is quite easy, isn't that right?

20 A You still have to do it one by one, sir, one file

21 after the other.

22 Q And you don't know from looking at 355 what the

23 person's purpose was in creating that file or those files.


25 THE COURT: No, go ahead, answer it.

2005

1 A I cannot assume the purpose, sir.

2 Q Sir, you said you didn't have a direct order to

3 testify here, is that right?

4 A Yes, sir.

5 Q But it was strongly suggested, wasn't it?

6 A No, sir.

7 MR. GREENFIELD: No further questions.

8 THE COURT: Anything else?


10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2006

1 MR. SNELL: Very brief, your Honor.


3 REDIRECT EXAMINATION

4 BY MR. SNELL:

5 Q Mr. Canlas, you were asked about changing the

6 times and dates on the files on the computer. Do you recall

7 that?

8 A Yes, sir.

9 Q Let me ask you, sir, on the laptop computer that

10 you examined on January 9th, 1995, how big a job would it

11 have been to change the dates on all of the files that you

12 reviewed on there?

13 DEFENDANT YOUSEF: Objection to the form, your

14 Honor.


16 A As I said earlier, sir, could be an enormous

17 task. You will have to go through each file individually,

18 one by one, and manually change. It will take maybe more

19 than a day, maybe.

20 Q A day?

21 A A day just changing the dates of all the files,

22 and there are thousands of them.

23 MR. SNELL: That's all, your Honor.

24 THE COURT: Anybody else?

25 DEFENDANT YOUSEF: I have cross.

2007


2 RECROSS-EXAMINATION


4 Q Now, sir, is it possible to change the dates and

5 times of which the files were created and the last date of

6 access without gaining access to these files?

7 A Can you clarify the question, sir?

8 Q Can you change the date of a specific file, the

9 date of its creation and its last date of access, can you

10 change it without gaining access to the file itself?

11 A You have to gain access to the file to change its

12 file stamp -- date and time stamp.


14 A You have to be able to access the file that you

15 want to change the time and the date.

16 Q Now, sir, I would like to show you a document.

17 THE COURT: Paul.

18 THE DEPUTY CLERK: Yes.

19 Q Sir, are you familiar with --

20 THE DEPUTY CLERK: Hold on one second.

21 Defendant Yousef Exhibits F1 and F2 are marked

22 for identification.

23 THE COURT: All right, give it to the witness.

24 Q Now, sir, are you familiar with assembly language

25 programming or machine language?

2008

1 A Yes, sir.

2 Q Would you take a look at the document in front of

3 you and read it to yourself.

4 (Pause)

5 MR. SNELL: Your Honor, before the witness is

6 asked any questions, can we take a look at what he's

7 examining?

8 THE COURT: Not yet, no.

9 Q Now, sir, having read the document in front of

10 you, is it possible using machine language programming to

11 change the date of creation of files or the last date of

12 access without gaining access to them?


14 THE COURT: It's the same question except that

15 you threw in a document in between.

16 Go ahead, answer it.

17 A You still have to gain access to the file if you

18 want to change the date.

19 THE COURT: Okay, Paul, give it over to the

20 government.

21 THE DEPUTY CLERK: Show it to the government?

22 THE COURT: Yes.

23 (Pause)

24 MR. KULCSAR: Your Honor, may I go up when Mr.

25 Snell looks at the document?

2009

1 THE COURT: Sure.

2 (Pause)


4 your Honor.

5 THE COURT: Okay.

6 All right, step down. Thank you very much.

7 (Witness excused)

8 THE COURT: Next witness.

9 MR. SNELL: Richard Macachor.

10 RICHARD MACACHOR,

11 called as a witness by the Government,

12 having been duly sworn, testified as follows:

13 THE DEPUTY CLERK: Please be seated. State your

14 name and spell your last name for the record. Keep your

15 voice up and speak into the mike if you need to.

16 THE WITNESS: My name is Richard John Macachor.

17 That is spelled as M-A-C-A-C-H-O-R.


19 BY MR. SNELL:

20 Q Sir, how are you employed?

21 A I was employed by the Philippine National Police

22 as technical operative.

23 Q How long have you worked with the Philippine

24 National Police?

25 A I have been working for four years.

2010

1 Q And you say that your title is a technical

2 operative, is that right?

3 A Yes, sir.

4 Q Where within the Philippine National Police are

5 you assigned?

6 A I was assigned at Intelligence Command, special

7 investigation group, technical support branch during that

8 time.

9 Q You said during that time. Which time are you

10 referring to?

11 A During the time when I was about to -- I was

12 given instruction on -- to browse a laptop computer.

13 Q And could you tell us --

14 MR. KULCSAR: Could we just have the last answer

15 read back by the reporter?

16 THE COURT: Sure.

17 MR. KULCSAR: Thanks.

18 (Record read)

19 Q Could you tell us, sir, about when that was?

20 A I think it was in January. I'm not particular of

21 the date, but it was a weekend.

22 Q Was that in 1995?

23 A Yes, sir.

24 Q What was the first thing that happened in

25 connection with your receiving an assignment to browse a

2011

1 laptop computer?

2 A Sorry, sir?

3 Q What was the first thing that happened on this

4 particular occasion that you have in mind?

5 A Can you repeat the question, sir.

6 Q Sure.

7 Did there come a time when someone asked you to

8 take a look at a laptop computer?

9 A Yes, sir.

10 Q Who was that?

11 A It was my immediate superior, sir, Major Ferro.

12 Q Is that Ferro?

13 A Yes, sir.

14 Q And where were you when he asked you to take a

15 look at the computer?

16 A I was in the office of the special investigation

17 group, sir.

18 Q Where is that located?

19 A It is located at the compound of Camp Crame,

20 Quezon City, Philippines.

21 Q Now, you said, I think, that this was on a

22 weekend, is that right?

23 A Yes, sir.

24 Q Do you remember which day of the weekend,

25 Saturday or Sunday?

2012

1 A I think it was a Saturday.

2 Q And about what time of day was it?

3 A It was early evening, sir.

4 Q What did the computer that you were asked to look

5 at look like?

6 A Sir, it was a laptop computer, sir, a portable

7 computer.

8 Q And could you tell us with a little bit more

9 detail what you were asked to do.

10 A I was asked to initially browse anything on that

11 computer.

12 Q If you might, sir, I think if you position

13 yourself a little bit farther from the microphone, but not

14 too far, you might have better results.

15 What did you understand the instructions to mean

16 by browsing the contents of the computer?

17 A It was to my understanding that I will try to

18 look at files in the computer, sir, computer files.

19 Q Did you do that?

20 A Yes, sir.

21 Q Could you tell us, please, what you did. Just

22 take us through step by step, if you could.

23 A When my superior instructed me to conduct a

24 browse of the computer, I turn on the computer. Then the

25 system starts automatically. I think the MS DOS start, and

2013

1 then it goes directly to Windows.

2 Q Let me ask you, Mr. Macachor, if I could, do you

3 have any training in the field of computers?

4 A I have, sir, but it was in crash courses.

5 Q I'm sorry?

6 A It was just a seminar, sir.

7 Q Were you familiar with the MS DOS and Windows

8 programs that you just mentioned at the time that you saw

9 them come up on the computer that you were looking at?

10 A During that time, sir, I am still familiarizing

11 with the system.

12 Q What did you see after the Windows system came up

13 on the computer?

14 A There was this screen saver, sir, that looks like

15 an Arabic inscription.

16 Q Could you describe it in a little more detail?

17 A When you start a Window, sir, it will appear a

18 screen saver. Then there is a small -- a small icon or a

19 symbol in the lower part of it, and that is what we call in

20 the program manager which will -- which goes with the

21 program, sir.

22 Q Now, did you do anything when you saw the icon

23 for the program manager on the screen?

24 A Yes, sir. I start opening up the program

25 manager. Then I go through the program application icon,

2014

1 switches accessories group, sir.

2 Q What did you do then, after you saw the

3 accessories group icon?

4 A After the accessory group, sir, during the Window

5 write program, which during that time I am familiar of, so I

6 try to open the Windows write program to see if there are

7 files on it, sir.

8 Q Did you find any files?

9 A When I opened the directory, sir, I did not

10 observe any write file, so I go through the type of files

11 and search for text files, sir.

12 Q What kind of files did you search for?

13 A Pardon sir?

14 Q I'm sorry, I didn't hear. What type of file was

15 it that you were searching for?

16 A I'm trying to look for any write files or

17 documents are in the write program, but during that time I

18 did not observe any, anything, because what -- what's on it

19 I'm not familiar of, so I tried to browse to look for any

20 text files.

21 Q Did you find any text files?

22 A Yes, sir.

23 Q Will you tell us, please, what you mean by a text

24 file.

25 A Sir, a text file, sir, is anything that is made

2015

1 through word processing program, sir, any document or

2 letters, group of letters.

3 Q What sorts of text files did you find?

4 A What do you mean, sir?

5 Q Well, could you describe any of the text files

6 that you noticed on the computer at this time?

7 A Sir, there was this files that contains Arabic

8 text, Arabic languages. There is a file containing a threat

9 letter, sir.

10 MS. BARRETT: Objection, your Honor.

11 THE COURT: You saw things in Arabic, is that

12 what you're telling us?


14 THE COURT: And then you saw letters?

15 THE WITNESS: Yes, sir. In another file, sir, I

16 saw a file containing a letter looks like --

17 THE COURT: It was a letter. Don't explain what

18 the letter was. But it was a letter, right?


20 THE COURT: Okay.

21 MR. SNELL: Your Honor, could I ask if the

22 witness might be given Government Exhibit 355, which is in

23 evidence.

24 THE COURT: Sure. Isn't it up there?

25 MR. SNELL: I don't think it's there anymore.

2016

1 THE DEPUTY CLERK: I have it right here.

2 Q Mr. Macachor, would you please take a look at

3 what's on page 1 of that Exhibit. Do you recognize that?

4 A Yes, sir.

5 Q What do you recognize it to be?

6 A It was this file that I -- one of this file that

7 I opened, sir.

8 Q And was that a file that you just referred to as

9 a letter?

10 A Yes, sir.

11 Q When did you first see this particular file?

12 A Can you -- pardon, sir?

13 Q Did you see this file on the occasion when you

14 first were looking in the files of the computer?

15 A Yes, sir.

16 Q Would you turn to the next page, page 2.

17 A Yes, sir.

18 Q Do you recognize that document?

19 A Yes, sir.


21 A This was the Arabic inscription that I -- that

22 one of the files that I opened, sir.

23 Q Was that on the computer as well?

24 A Yes, sir.

25 Q Now, you said that this is Arabic. Do you speak

2017

1 Arabic?

2 A No, sir. I think it is an Arabic inscription, I

3 believe, sir, Arabic inscription, it's more of Mideastern

4 inscription.

5 Q Let me ask you to turn to page 4 of Government

6 Exhibit 355 and look at pages 4 and 4A. Do you recognize

7 what's printed on those pages?

8 A Yes, I recognize.

9 Q When did you first see this material?

10 A It was during the time when I -- when I opened

11 the computer, sir.

12 Q And do you remember what kind of a file this

13 material was contained in?

14 A I could not remember the file name, sir, but it

15 is on -- but the extension is text. The file extension name

16 is described as TXD. That stands for text files.

17 Q Could you tell us, please, what you mean by file

18 extension. What's that term mean?

19 A File extension, sir, usually describes the type

20 of document or files which are made by the Windows which

21 indicate what type of word processing program, sir.

22 Q And how many characters are usually contained

23 within a file extension?


25 A Usually it --

2018

1 THE COURT: No, don't answer it.

2 Next question.

3 Q Would you take a look now, please, at page 7 of

4 the booklet. Do you recognize that, sir, on page 7?

5 A No, sir.

6 Q How about on page 8?

7 A No, sir, I don't recognize it.

8 Q About how long did you browse the files that you

9 were looking at on the computer that afternoon or evening,

10 whatever it was?

11 A Sir, I was in the room with the computer early --

12 in that early evening of Saturday. I think I finish at

13 early dawn of the following day. But I -- but I did not

14 consume entirely my time with that computer. I rest and

15 then go back to the computer.

16 Q Where were you when you were working with the

17 computer browsing the files?

18 A At the office of Maj. Ferro, sir.

19 Q And was there anyone else working with you during

20 that time?

21 A It was only me, sir, and with the permission of

22 Maj. Ferro.

23 Q Where was Maj. Ferro during this time?

24 A Sir, sometimes he goes in and out of his office.

25 Q After you completed your work browsing the files

2019

1 what did you do?

2 A Sir, I turn off the computer and leave the

3 responsibility to Maj. Ferro.

4 Q Did you have any conversation -- and please don't

5 tell us what was said, but did you have any conversation

6 with Mr. Ferro about what you had seen on the computer?

7 A Yes, sir.

8 Q Now, did there come a time later when you saw the

9 computer --

10 THE COURT: Wait a minute. This sounds like a

11 good break point.

12 All right, ladies and gentlemen, tomorrow morning

13 we'll pick up and talk to you some more about the computer.

14 Leave the stuff there. Have a good night.


16 THE COURT: How much longer are you going to be

17 with this guy?

18 MR. SNELL: I think about five minutes, your

19 Honor.

20 THE COURT: I don't know about the rest of you

21 folks. I'm having difficulty understanding him. Did anyone

22 consider the possibility that the jury might have difficulty

23 understanding him, too? I don't know. Tomorrow morning,

24 10:00.

25 (Adjourned to July 11, 1996 at 10:00 a.m.)

2021


8 July 11, 1996 10:00 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorney

17 ROY KULCSAR, Legal Advisor for Defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorney for Defendant Murad 20 DAVID GREENFIELD, 21 Attorney for Defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIA ISMAIL, GALAL EL-NAHAL, HASSAM MOAWAD 24

25

2022

1 (Trial resumed)


3 THE COURT: Do you have an interpreter for Mr.

4 Macachor?

5 MR. SNELL: Yes, your Honor. I just wanted to

6 call that to everyone's attention. Yesterday after court

7 the witness asked me if it would be acceptable to switch

8 over to an interpreter, and I said I would communicate that

9 request to the Court.

10 THE COURT: I thought I made it pretty clear at

11 the end of the day and that you understood.

12 MR. SNELL: Yes, your Honor. So we have Mr.

13 Masaoay again today, and he will be the interpreter.

14 THE COURT: Get the jury in first.


16 THE COURT: In my lifetime I have felt myself to

17 be a very lucky man. I'm lucky enough to have had a steady

18 job for the last 24 years or so, and I've been lucky enough

19 to do some traveling.

20 Now, when I traveled about, I was amazed to find

21 out how many people want to speak English. There's a lot of

22 reasons for it. Take, for example, a simple thing. Well,

23 there are certain things, like most of your computer manuals

24 now are written in English. There is an awful lot of TV in

25 English. You know, CNN is worldwide. And most of your

2023

1 better movies are in English. And for those who fly, I

2 don't know if you guys know this, but the universal language

3 in flying, among people who fly, is English. And the reason

4 for that is the airplanes are built here and all the

5 directions are in English. I'm not making that up. I swear

6 to God. So I will never forget the first time we ended up

7 going to Greece and I said to my wife -- I got this little

8 book on how to sound out words, and I said I intend to sound

9 out the words for you when we get there. And the first

10 thing we saw was a Jeep on the runway, and the Jeep had in

11 perfect English "Follow Me."

12 When people come to the United States, they speak

13 English when they can because it's something that they're

14 learning and it's good for them, and it's actually a

15 compliment to us that they try to do this. But to tell you

16 the truth, every now and then it makes life a little

17 difficult for all of us because we're not sure we

18 understand.

19 The gentleman who was on the stand yesterday was

20 such a person. I'm quite sure that he enjoyed practicing

21 English, and I think it's wonderful that he's doing so well,

22 but truthfully, I thought, since I was having difficulty and

23 admit I was having difficulty understanding him, that you

24 guys might be having the same kind of difficulty, so I

25 suggested in the strongest way possible that the government

2024

1 get an interpreter today and the testimony continue but this

2 time through an interpreter, so that's what's going to

3 happen. He is not here. There is no reason for me to

4 embarrass him, that's why.

5 Okay, now go get him.

6 What is the interpreter's name again?

7 MR. SNELL: Mr. Masaoay. Chris Masaoay.

8 RICHARD MACACHOR, resumed.

9 THE COURT: Mr. Masaoay, you remember you were

10 sworn to be an interpreter here. I understand you're going

11 to do it in the same language today.

12 THE INTERPRETER: Yes.

13 THE COURT: Okay. Go ahead.

14 DIRECT EXAMINATION CONTINUED

15 BY MR. SNELL:

16 Q Mr. Macachor, yesterday you were testifying about

17 an assignment you received to browse files on a laptop

18 computer, is that right?

19 A Yes, sir.

20 Q Do you remember when it was that you first saw

21 that computer?

22 A It was in the month of January 1995, before the

23 Pope arrived.

24 Q And do you remember which day of the week it was

25 when you were first shown this computer?

2025

1 A Yes. That was on the weekend. I believe it was

2 on a Saturday and within a week the Pope was to arrive.

3 Q Now, when you looked at the files, or I believe

4 you said you browsed the files on the computer, did you

5 input any information into the computer?

6 A No, sir, I did not. I didn't put anything in

7 there.

8 Q And did you delete any information from any file

9 in the computer at that time?

10 A None, sir.

11 Q Now, yesterday you were also shown Government

12 Exhibit 355, which I believe now has been placed before you

13 again. Would you take a look at that, please, sir. And

14 please turn to the first page. When is the first time that

15 you ever saw what's printed there on that page?

16 A Is it this particular page, sir?

17 Q Yes, that's the one, the one with the number 1 in

18 the middle of the bottom of the page.

19 A I saw this the first time that I had browsed and

20 looked at the computer.

21 Q Turning now to the second page, which has the

22 numeral 2 in the middle of the bottom of the page, when did

23 you first see that?

24 A It was at the same time, that same time.

25 Q Will you turn to the next page, which has the

2026

1 numeral 3. Do you remember seeing that file on the same

2 occasion when you were browsing the files on the laptop?

3 A No, sir, I did not see this.

4 Q Sir, did you access any fax files on the computer

5 at that time?

6 A At that time, sir, I was not familiar with

7 accessing any fax files. Sir, I did not do anything at that

8 time.

9 Q Would you please now turn to the next page, page

10 4. Do you remember the first time you ever saw that?

11 A Yes, sir, I do.

12 Q When was that?

13 A That same time, sir, that Saturday.

14 Q Now, would you please turn to the page that's

15 marked 5 in the middle of the bottom of the page. And

16 referring to that page as well as the page following it

17 marked 5A, do you remember if you ever saw that material?

18 A Yes, I remember, sir.

19 Q And when did you first see it?

20 A The first time that I looked at that computer.

21 Q Now please turn to page 6. And the 6 is over in

22 the corner, the lower right-hand corner. Referring to that

23 page and 6A, the following page, and 6B, the page that

24 follows that, did you see what's printed on any of those

25 pages the first time that you looked at the computer?

2027

1 A I don't remember seeing this particular page. I

2 could not tell because of all this characters that are

3 printed here.

4 Q Which characters are you referring to? Could you

5 just identify them somehow or maybe hold up the page and

6 point them out to the jury.

7 A This plus signs, this circles, this additional

8 things over here.

9 MR. KULCSAR: Your Honor, can we have the last

10 answer read back?

11 THE INTERPRETER: He said "this additional things

12 over here."

13 MR. KULCSAR: Thank you.

14 Q Sir, just so we're all clear what you're

15 referring to, are you pointing out the lines of plus signs

16 and circles that appear at various points on the pages?

17 A Yes, sir, this plus signs.

18 Q Now would you please take a look at the page

19 that's marked 7 in the middle of the bottom of the page.

20 Where the word Bojinka appears at the top of the page, do

21 you see that?

22 A Yes, sir. I saw this the first time that I

23 handled those computers.

24 Q Those computers?

25 A That same computer that I handled that Saturday.

2028

1 Q Now, do you recall yesterday being asked to take

2 a look at page 7 and telling us that you did not remember

3 ever seeing what was on page 7?

4 MR. GREENFIELD: Objection, your Honor. That was

5 not what he said. He said he did not recognize it.

6 THE COURT: Did not recognize it. That's exactly

7 what he said. Rephrase your question.

8 Q Sir, do you remember yesterday being asked about

9 page 7 and saying that you did not recognize what was on

10 page 7?

11 A Yes, sir, I said that yesterday, but at that time

12 I was not looking at the correct page, and I apologize.

13 Q Which page were you looking at, sir, at that

14 time?

15 A This page, 6A, that I presumed was the page that

16 was following 6.

17 Q Now will you take a look at the next page in the

18 booklet, and that has the 8 in the middle of the bottom of

19 the page.

20 A Yes, sir.

21 Q Did you see that material the first time that you

22 accessed the computer?

23 A I don't know, sir. I did not access this file.

24 Q Would you take a look now at the next page, page

25 9. Do you remember when you saw that for the first time?

2029


2 Honor.

3 THE COURT: Yes. It's bad.

4 Q Sir, do you recognize the material that's on page

5 9?

6 A I did not access this file, sir.

7 Q How about on page 10, would you take a look at

8 that, please.

9 A I did not access this file, sir.

10 Q Now would you take a look at the remaining pages

11 of the book. Just go through those and tell us whether you

12 recognize any of those files as files that you saw on that

13 night.

14 A I did not see this files that evening.

15 Q At the time you were browsing the computer, what

16 experience, if any, did you have in the retrieval of

17 graphics files on computers?

18 A I was not familiar with any workings of a

19 graphics file, and so that particular evening I did not

20 touch any graphics file.

21 Q Now, Mr. Macachor, did there come a time after

22 the occasion on which you first saw the computer when you

23 saw the computer again?

24 A Yes, there was a particular instance, sir.

25 Q Would you tell us, please, sir, when that was.

2030

1 A It was about one and a half weeks after that

2 first time that I had looked at the computer.

3 Q What were the circumstances surrounding your

4 seeing the computer for the second time? Could you tell us

5 what happened?

6 A I was asked to make a printout of the files that

7 I saw the first time that I handled the computer.

8 Q And who asked you to do that?

9 A It was my direct supervisor, Maj. Ferro.

10 Q What did you do after you received this set of

11 instructions from Maj. Ferro?

12 A Yes, I was going to try to reprint the files that

13 I had accessed the first time that I handled the computer.

14 At this time, sir, I realized that this printer that was

15 attached to this computer was not compatible with the

16 printer that we have at our offices, so what I did at that

17 time is I made a copy of the files that I was going to

18 access, and what I needed to do was to put a diskette in

19 there and copy this files that I needed to print. After I

20 had copied the files, I then transferred it into our

21 computer so that I can print this out of our own printer.

22 Q What did you do --

23 MR. KULCSAR: Your Honor, I apologize. It was a

24 long answer. Could we ask the reporter just to read it

25 back?

2031

1 THE COURT: Sure.

2 (Record read)

3 MR. KULCSAR: Thank you very much.

4 THE INTERPRETER: The witness would like to make

5 a clarification on a word that he used after the answer had

6 been read back, that this particular mode of printer was

7 already programmed or installed into the laptop computer,

8 and he does not mean that it doesn't have a printer of its

9 own.

10 MR. GREENFIELD: Could we clarify that he

11 corrected the English answer?

12 THE COURT: Yes.

13 Q Now, Mr. Macachor, at the time that you printed

14 out these files, did you make any additions or deletions to

15 or from the files that you were printing out?

16 A I did not do any deletions or additions, sir.

17 Q What did you do with the printouts that you made

18 on this occasion?

19 A I submitted it to my superior, sir.

20 Q Was that Maj. Ferro again?

21 A Yes, sir.

22 Q Where did you do this work?

23 A The same place, inside the offices of Maj. Ferro.

24 Q After you were finished with the work on this

25 occasion, what, if anything, did you do with the laptop

2032

1 computer?

2 A I did nothing more. I left the computer with

3 Maj. Ferro.

4 Q Now, sir, did there come a time when you were

5 approached by members of the FBI and United States law

6 enforcement about testifying in this trial?

7 A Yes, sir.

8 Q And has the United States Government paid for

9 your air fare and your accommodations while you're here for

10 this trial?

11 A Yes, sir, that is my understanding.

12 Q Is it also your understanding that the United

13 States Government is paying your salary with the Philippine

14 National Police while you're away from work because of the

15 trial?

16 A What I understand was we are going to be provided

17 with a subsistence allowance.

18 Q And does that also include a daily witness fee?

19 A Yes, sir.

20 MR. SNELL: I have no further questions, your

21 Honor.




25 A Good morning to you as well, sir.

2033

1 Q Now, sir, do you have any rank in the Filipino

2 National Police?

3 A Yes, sir.

4 Q Will you tell us what your rank is.

5 A I am a police officer one.

6 Q Now, sir, was it your testimony yesterday that

7 you worked in the technical operation division in the

8 Filipino National Police?

9 A What I told yesterday was that I am a technical

10 operative with the Intelligence Command of the Philippine

11 National Police.

12 Q And what does your duties consist of as a

13 technical operator, sir?

14 A As a technical operative, we are sometimes asked

15 to conduct technical surveillance of perhaps subjects or

16 things that we are assigned to. Sometimes when we are in

17 the office our job also entails encoding and editing some

18 transcripts or documents that may be turned over to us.

19 Q Does your job involve anything with computers,

20 any programming or any inspections or examinations of

21 computers?

22 A We work with computers, but I am not an expert in

23 the internal workings or programming of computers.

24 Q Does your work has anything to do with a

25 computer?

2034

1 A There are some.

2 Q Will you tell us what they are, sir.

3 A As I said, the scope of my job in terms of

4 computer is limited to sort of editing and encoding papers

5 or documents that may be turned over to us. As far as the

6 programming aspects of computers, I have no dealings with

7 that, sir.

8 Q Did you take any computer programming courses or

9 any courses in computer science, sir?

10 A No, sir, I didn't.

11 Q Now, prior to January of 1995, how much practical

12 experience did you have with computers?

13 A As I mentioned to you, in terms of editing and

14 encoding reports or documents that may be turned over to us,

15 I have two years worth of experience.

16 Q Now, sir, when you joined the Filipino National

17 Police, were you interviewed by any members of the Filipino

18 National Police before joining them regarding your

19 experience and academic background?


21 THE COURT: I don't know where it's going. We'll

22 try it for a while.

23 Go ahead and answer it.

24 A I was interviewed, but I was not asked anything

25 about my knowledge or my expertise in computers.

2035

1 Q Did you make any of your superiors aware of your

2 background, practical background or academic background, in

3 the computer?

4 A Sir, when I was employed at the PNP, that was at

5 that point that I learned how to access and how to use a

6 computer.

7 Q Now, sir, was it your testimony that you been

8 working with the Filipino National Police for four years?

9 A Yes, sir.

10 Q When did you join them, sir?

11 A When did I start working?

12 Q Yes, sir.

13 A I started working with the agency in 1990 as a

14 civilian, and at the time of December 1993 I became a part

15 of the police.

16 Q Now, sir, from 1993 to January of 1995 were you

17 ever given any computer by your superiors and asked to

18 browse or search its contents?

19 A Could you clarify what you're talking about. Are

20 we talking about evidences, are we talking about computers?

21 Q Yes, computers. Were you ever given any

22 computers by your superiors from 1993 to January of 1995 and

23 asked to examine its contents?

24 A Yes. The incident that happened in January where

25 I was given a laptop computer to browse into and to look

2036

1 into was the first instance that I was given a computer.

2 Q Now, sir, when you were given the computer in

3 January of 1995, what, if anything, beside the computer

4 itself, any of the computer accessories were you given?

5 A Sir, I am not familiar with any accessories as to

6 you're asking me. All I can tell you was when this was

7 given to me, my immediate attention was to find where the

8 power supply was so that, in turn, I can turn this on.

9 Q Now, sir, when you were given the computer, was

10 it inside a bag or anything?

11 A I don't remember anymore, sir.

12 Q And how did you turn the computer on, sir?

13 A Yes, this particular computer that they had asked

14 me to work on was already sitting on a table inside Maj.

15 Ferro's office at that time, so when they asked me to work

16 on this, I then went over and approached the computer. I

17 looked it over and see where the power supply was coming

18 from and what sort of power supply was needed for the

19 laptop. I made sure that this was -- we had the power that

20 was compatible for this laptop, and after I had done that, I

21 turned it on. After I turned it on, the computer itself

22 generated its own system and it went into its Window system.

23 Q Now, sir, when you first saw the computer, was it

24 already plugged on or did you plug it on yourself?

25 A As I have told you, sir, I went to first look at

2037

1 what sort of power supply it needed. After I have studied

2 what kind of power supply it needed, then I myself plugged

3 it on and turned it on.

4 Q Now, sir, how did you plug it on?

5 DEFENDANT YOUSEF: Withdrawn.

6 Q Sir, how did you switch the computer on? Did you

7 use the keyboard or did you use anything else?

8 A Sir, I did not attach any keyboard to turn it on.

9 What I did was to turn the switch on, and at that point,

10 when the power was flowing into the computer, it started to

11 generate itself to its original program.

12 Q And where were these switches located on the

13 computer, sir?

14 A I don't exactly remember, but I'm thinking it may

15 be on the back of the computer.

16 Q Now, sir, what time did you receive the computer?

17 A It was in the early evening of Saturday.

18 Q I'm sorry, sir, would you repeat the answer.

19 A It was in the early evening of Saturday.

20 Q Do you remember approximately what time it was?

21 A Around 6 or 7, perhaps.

22 Q Now, sir, was it your testimony that when you

23 were given the computer, you were instructed to browse or

24 search through its contents? Am I correct, sir?

25 A Yes, sir.

2038

1 Q Now, sir, were you given any instructions

2 regarding the proper procedures of browsing the contents of

3 the computer without changing the contents of its files or

4 the integrity of its files?

5 A I wasn't given any instructions on how to do

6 this. My instruction was to browse and look at what files

7 were in there.

8 Q Now, sir, when you first switched on the

9 computer, what did you see on the screen?

10 A When I turned on the computer, initially what

11 came out, after the power had been turned on, the logo of

12 the Windows program came out. After the logo of the Windows

13 program came out, the screen saver then came out. At the

14 bottom of the screen saver you would find the program

15 manager, and the program manager would be represented by an

16 icon. The screen saver I would say had pictures in it. It

17 illustrated something that looked like Middle Eastern

18 handwriting. There was a drawing of a tree, there were also

19 some drawings of some birds, and there was a drawing of what

20 looked like a garden patch.

21 Q Now, sir, what did you first see on the screen?

22 Did you say a window logo or something?

23 A Yes, sir. As you turn on this computer, and I

24 imagine for any computers, if you turn it on, the Windows

25 logo would then come out of the screen, and immediately

2039

1 after that Windows logo had came out, then the screen saver

2 screen then appears.

3 Q Did you press anything to make the screen saver

4 come out of the window logo or just comes out by itself,

5 sir?

6 A The screen saver comes out without pressing any

7 key whatsoever.

8 Q Would you explain what the screen saver is, sir.

9 A Yes. This screen saver would be I guess what you

10 would call a desk top. I cannot fully explain to you the

11 mechanics of what a screen saver is.

12 Q Will you describe how it looks like on the screen

13 when you see it?

14 A Yes, sir. What I could tell you is the screen

15 saver would appear -- if at that point you didn't have any

16 programs or anything that you are running at that point,

17 then it would be the screen saver that would be facing.

18 Q Would you describe how it looks like on the

19 screen?

20 A As I have said to you, sir, in this particular

21 screen saver what I saw was a graphics of a tree, and with

22 this graphics of a tree, on top of it there were some birds

23 that were flying. On the lower portion of the screen I saw

24 some Middle Eastern or Arabic sort of script. There is

25 also, on the upper portion of this Arabic writing, a garden,

2040

1 something that looked like a garden with some bushes on it.

2 And then I would say that the background was white and this

3 images were in coloration.

4 Q Now, sir, would you describe the size of the

5 drawings, the size of the tree and the birds. Does that

6 cover half the screen or all the screen?

7 A This particular tree just covered a portion of

8 the screen, and then you can see the other graphics that

9 were on the screen.

10 Q Would you describe the size which is covered on

11 the screen, sir.

12 A Sir, what I can tell you is when you access this

13 screen saver, as I have described to you, what you can see

14 is all these images. There are those trees, the birds,

15 there is that garden bush sort of figure, there are those

16 writings there. And when you do access the screen, all of

17 this images come out.

18 As far as the dimensions, how big they are, I

19 cannot tell you that. I can tell you that the images, this

20 images that I told you comes out of the screen.

21 Q Could you tell us if it covered the whole screen

22 or covered a very small portion of the screen?



25 Q Now, sir, how many hours did you spend in search

2041

1 of the contents of the computer?

2 A Sir, when I worked in this computer, I had to do

3 this in intervals. So that I would start, and in between I

4 would take a break. And then, of course, working on this, I

5 would say that I finished at around 2:00 that following

6 morning. Again, I did not work continuously. There were

7 instances that I took a break. And after I was tired or I

8 couldn't handle it anymore, I would take a breather, and

9 then I would resume to work on the computer. And again, it

10 was until around 2:00 that following morning that I worked

11 with this computer.

12 Q Well, would you tell us approximately the time

13 that you spent working with the computer, how much it was?

14 A Sir, if you are asking me for an estimation, the

15 estimation that I can give you is perhaps I worked on that

16 computer for a period of about four to six hours.

17 Q Now, sir, incidentally, the screen of this

18 computer, is it black and white or is it a colored screen?

19 A This was a colored screen, sir.


21 you did not find any write files in the computer?

22 A Sir, my testimony is that I did not see any write

23 files when I looked at the computer, but I am not saying

24 that there are not any write files in the computer.

25 Q Well, during the four or six hours that you

2042

1 worked with the computer, did you search to see any write

2 files there?

3 A I didn't notice any.

4 Q Now, sir, would you explain what a write file is.

5 A Yes, sir. A write file would be a word

6 processing program, and when you have this word processing

7 program, it allows you to make documents that would come out

8 in alphanumeric form.

9 Q Now, sir, when you were on the screen saver, what

10 did you physically do to accomplish this, to search for

11 write files?

12 A Yes, sir, I would say that I accessed the program

13 manager. And when I went to the program manager, I opened

14 and ran it. The program manager allows you to access the

15 different applications. And when you access this

16 applications, there are this icons. And as you locate this

17 icons, you can see that there was the write program.

18 Q Now, sir, did you see any text files stored in

19 the computer?

20 A Not immediately, sir.

21 Q When did you first see them?

22 A Sir, I wasn't immediately able to locate text

23 files, and the way I came about this was to open the write

24 files. And upon opening the write files, I saw there were

25 no write files. I then went to the list of file names. And

2043

1 going into the location of the file names, I saw that there

2 were some write files, there were DOS files, and there were

3 some other files. Included in this were the text files.

4 And upon reaching that location, I then opened it.

5 I just want to make a correction that those are

6 not really file names. I should say that is being the type

7 of files.

8 Q So you saw some write files?

9 MR. GREENFIELD: Your Honor, let the record

10 reflect again the witness corrected the English translation

11 as it was being given.

12 THE COURT: Yes. Go ahead.

13 Q Now, sir, there was a time also when you said you

14 saw some write files?

15 A Sir, as I have told you, when I went to locate

16 the write files, I did not look into this and I didn't

17 locate any write files.

18 Q How many text files did you see on that evening,

19 sir?

20 A About four or five text files.

21 Q Are these the only files which you saw on the

22 screen, or are these files which you only gained access to

23 them?

24 A This were the files that I accessed, which then I

25 was able to look into the screen.

2044

1 Q I'm sorry, sir, would you repeat the answer.

2 A This were the files that I looked at, and this

3 were the files that I accessed.

4 Q This are the only files which you looked at in

5 the screen?

6 A Yes, sir.

7 Q Now, sir, in order for you to gain access to the

8 text files, could you tell us which specific keys you

9 pressed on the computer?

10 A Yes. To go into the text files, sir, what I did

11 was to use the mouse and choose the location that said text

12 files. In doing this, I then double clicked the mouse, and

13 then appeared the files. And out of those text files, there

14 were those different files, and from there I looked into the

15 particular files that were in there, each of them, by using

16 the mouse.

17 DEFENDANT YOUSEF: Your Honor, I couldn't quite

18 understand the witness' previous answer concerning the

19 numbers of text files. If I may ask him the question again.

20 THE COURT: Sure.

21 Q Sir, will you tell us approximately what was the

22 number of text files which you saw in the computer during

23 the four or six hours which you spent on the computer that

24 evening?

25 A Sir, there were quite a number of text files, but

2045

1 I was able to locate only five or four of this text files.

2 The other text files, when you look into them, they were

3 written in unfamiliar character which I am unable to read.

4 Q Now, sir, did you write any notes for yourself

5 regarding the names of the files which you saw on that

6 evening?

7 A No, sir, I did not have any notes.

8 Q Did you write any notes regarding the contents of

9 the files which you saw on that evening?

10 A No, sir.

11 Q Did you prepare any report after the search which

12 you conducted in the computer regarding what you saw?

13 A A written report, sir, I will say no; a verbal

14 report, yes.

15 Q Did you write any report concerning your

16 activities on that evening to your superior?

17 A No, sir. I didn't do any of those.

18 Q Now, sir, how many times did you see the contents

19 of the four files which you say you saw them on the evening

20 of January 1995?

21 A Are you talking about how many times I saw it

22 that particular evening, that first evening, or are you

23 talking about the total number of times that I saw it?

24 Q The total number of times which you saw them on

25 different days.

2046

1 A Sir, just that evening, when I first was given

2 the computer, and then the second time was they had asked me

3 to print out what I had seen in the computer.


5 to Government Exhibit 355, page number 2.

6 THE INTERPRETER: Could you repeat that for me,

7 please.

8 THE COURT: 255, page 2.

9 Q Now, sir, between January of 1995 until --

10 A Is this the right one?

11 Q Yes, sir, I believe it is. Page number 2.

12 THE COURT: Okay.

13 Q Now, sir, how many times between January of 1995

14 up to today or yesterday in which you saw this file or the

15 contents of this page?

16 A Are you talking about in terms of days that I saw

17 this or --

18 Q Yes, sir, on how many occasions?

19 A I first saw this when I first handled that

20 computer that evening. The second time that I saw this was

21 when I was asked to print out what I saw that first evening

22 that I handled the computer. The next time that I saw this

23 was when I met with the attorneys here in New York.

24 Q And when was the last time, sir? When did you

25 meet with the attorneys here?

2047

1 A Before I took the stand.

2 Q Now, sir, do you understand any of the writing on

3 this page?

4 A No, sir.


6 when you first saw it, you recognized it as to be Arabic

7 words?

8 A Yes, I testified to that, sir, and I was

9 assuming, because if you read the contents here, as you read

10 the words that are contained here, the words sound like they

11 are Arabic.

12 Q I'm sorry, sir? Would you repeat the word.

13 THE COURT: Do you want him to repeat it?

14 MR. KULCSAR: I think just have the reporter read

15 back the last part of his answer.

16 (Record read)

17 Q Now, sir, how many languages do you speak beside

18 English and your own language?

19 A Only two, sir.

20 Q Now, sir, how many languages are there in the

21 Philippine?

22 A There is one common national dialect and then

23 there are other dialects.

24 Q And do you know how many other dialects there are

25 in the Philippine?

2048

1 A I don't know exactly how many there are, but I

2 know some of those dialects.

3 Q Now, sir, do you know what the Arabic letters

4 look like?

5 A Sir, what kinds of Arabic letters are we talking

6 about? Are we talking about the language that you write the

7 letters that you write, or are we talking about the

8 transposition into the English letters?

9 Q No, sir, the Arabic letters itself which are used

10 in writing Arabic letters.

11 A I am not familiar with them.

12 Q Did anyone suggest to you that this letter could

13 be Arabic letters or you made the assumption yourself?

14 A This is my own assumption, sir, and this is what

15 I understand it to be.

16 Q Now, sir, you testified about using a mouse. Was

17 this mouse connected to the computer when you first saw it

18 or did you connect it yourself?

19 A What I remember is it was already attached to the

20 computer.

21 Q Now, sir, when you switched on the computer, was

22 the cord connected to the computer or did you connect it

23 yourself?

24 A Are you referring to the power supply?

25 Q Yes, sir.

2049

1 A As I have said to you, sir, I was the one that

2 attached the power supply.

3 Q And where was the power supply located when you

4 attached it to the computer?

5 A The power supply would be the plug that is in the

6 back of the computer, so what I did was I plugged it in.

7 Q And where was the cord located, sir?

8 A What I remembered was this power supply was also

9 there in the office of my superior, so I had checked the

10 power supply, whether there was what was needed, and then,

11 of course, I attach it to the computer and I plugged it in.

12 DEFENDANT YOUSEF: Your Honor, is this a right

13 time to have a break?

14 THE COURT: Yes, all right.


16 THE COURT: Mr. Yousef, how much longer do you

17 think you're going to be with this witness?

18 DEFENDANT YOUSEF: About five or ten minutes,

19 your Honor.

20 THE COURT: I don't know, I sit here and there is

21 a Christmas carol running through my head, It's Beginning to

22 Look a Lot Like Christmas. I figure we can sing it from now

23 until the next time we charge the jury. We'll have the same

24 result by Christmas.

25 (Recess)

2050

1 (Jury present)

2 THE COURT: Go ahead, Mr. Yousef.


4 Q Now, sir, on the evening of January 1995 when you

5 finished working on the computer, what did you do after

6 that?

7 A I left the computer with Major Ferro at his

8 office.

9 Q Was it switched on when you left it?

10 A No, sir, I had turned it off.

11 Q Did you see what Major Ferro did with the

12 computer when you left it there?

13 A No, sir, I didn't know what he did. Perhaps he

14 kept it for safekeeping.

15 MR. KULCSAR: May we have the last portion

16 stricken?

17 THE COURT: Yes, it is not really responsive.

18 Take it out, very last portion. Go ahead.

19 Q Now, sir, was it your testimony that there was a

20 second time about a week and a half later when you went to

21 see the computer?

22 A Yes, sir.

23 Q Did you go to Major Ferro's office which you were

24 there before, the first time?

25 A Sir, I work in his office, so I was there in his

2051

1 office and he brought the computer over to me.

2 Q Did he bring the computer over when you were

3 there or was the computer already there?

4 A I was there and the computer was there.

5 Q Was the computer switched on when you first saw

6 it?

7 A I don't remember, sir.

8 Q Now, sir, was it your testimony that you were

9 instructed to print out the files which you saw the first

10 time?

11 A Yes, sir.

12 Q And that you were trying to use a printer which

13 was available there but was incompatible with the computer?

14 A Yes, sir.

15 Q Was the computer already attached to the computer

16 when it tried to print out the contents of the computer?

17 A I was the one that attached it to the cable when

18 I tried it.

19 Q And then you testified that you saved some of the

20 files on diskettes in order to store them on your own

21 computer, am I correct, sir?

22 A Yes, sir, so that I could print it out.

23 Q And then you printed out these files, am I

24 correct, sir?

25 A Yes, sir.

2052

1 Q How many pages did you print out?

2 A There were some files that contained or needed

3 more than one page.

4 Q What is the total number of pages which you

5 printed out, sir?

6 A I cannot remember how many pages they came out to

7 be.

8 Q Do you recall what files you printed out?

9 A If I see the computer, then I would be able to

10 determine the files that I had printed.

11 Q Did you print out any of the files which you saw

12 the first time, or you printed out files which you didn't

13 see the first time?

14 A The only files that I printed out were the files

15 that I was able to access the first time that evening when I

16 handled that computer.

17 Q Now, sir, what did you do with the computer after

18 you finished copying the files which you wanted into the

19 diskettes which you inserted into the computers, sir?

20 A I returned it to Major Ferro.

21 Q How long did you spend with the computer the

22 second time?

23 A Sir, it was just for a little while. I just went

24 to copy the files to the diskette. I then did the

25 printouts, I turned it over, and that was it, I left.

2053

1 Q Now, sir, what did you do with the diskettes

2 which you copied some files from the computer into them?

3 A I turned it over to Major Ferro.

4 Q Now, sir, in January of 1995, did you know a

5 person by the name of Colonel Delfin?

6 A Yes, sir, there was.

7 Q Do you know what was his position?

8 A As far as I know, he was the deputy director of

9 operations for the Intelligence Command.

10 Q Sir, in January of 1995, do you know what was the

11 relationship, the professional relationship between Colonel

12 Delfin and Major Ferro?

13 A I don't have any idea about that, sir.

14 Q Sir, do you know a person in the PNP tamed Taas?

15 A Is it Taas or Canlas?

16 Q Captain Taas.

17 A During that period of time I didn't know him.

18 Q When did you first know him, sir?

19 A When we arrived here in New York City.

20 Q Now, sir, do you know if Delfin is a superior of

21 Major Ferro?

22 A By rank I understand that Colonel Delfin is

23 higher in rank.


25 your Honor.

2054

1 THE COURT: Miss Barrett?

2 CROSS-EXAMINATION

3 BY MS. BARRETT:

4 Q Sir, how long have you had your position with the

5 PNP?

6 A I became a regular member of the PNP in December

7 of 1993.

8 Q How long have you been a technical operative?

9 A Since I was a civilian. That was the process of

10 my training until today.

11 Q When did you become a technical operative?

12 A I became an official member and had the official

13 title when I became a policeman.

14 Q Could you define for us again the duties --

15 define for us what a technical operative is.

16 A Yes, ma'am. Our basic duties as a technical

17 operative, the duties consist of conducting technical

18 surveillance, and this may entail using photographic

19 equipment, some videos. And then of course there were also

20 the communications aspect of this particular job

21 description. As well as, sometimes we serve as custodians

22 for communications equipment that may need to be taken care

23 of. Also, a part of the line work is working with

24 computers, and working with that my involvement is to encode

25 some reports that may be turned over by some units or

2055

1 officials, and then we encode it and then turn it over to

2 whoever higher authorities that we need to turn this over

3 to.

4 Q When you say encode reports, what do you mean?

5 A Encoding means that sometimes this officials or

6 certain personnels would have existing handwritten drafts of

7 the documents or papers that they hand over to us. In turn,

8 when I say encoding, that means entering the information

9 into the computer, and as you enter it into the computer,

10 then the corrections are made, whatever corrections needed

11 to be done or editing that needed to be done.

12 Q So encoding basically means that you type

13 documents into a computer?

14 A Yes, that is an aspect of it, typing it into the

15 computer.

16 Q In what other aspects of your job as a technical

17 operative do you use the computer, other than typing

18 documents?

19 A No other. That's about the scope of it.

20 Q When you type these documents into the computer,

21 do you use WordPerfect programs?

22 A What do you mean by WordPerfect?

23 Q Do you use word processing programs in the

24 computer?

25 A Yes, we do, and I can tell you that what I am

2056

1 familiar with is a program called Word Start.

2 Q What did you say? Word?

3 A Word Start.

4 Q Are you familiar with Windows?

5 A At that time when I did this, we were just

6 getting to get started to get familiar with Windows.

7 Q You stated that you started working with the PNP

8 in 1993, is that correct?

9 A Yes.

10 Q What time did your job entail working with

11 computers? When did that begin?

12 A Yes, ma'am. During the time when I was a

13 civilian, this was the training ground or the background of

14 the work that I did, and eventually when I came to join the

15 organization this was the same line of work that I had done.

16 It was sort of my OJT.

17 Q What is OJT?

18 A On-the-job training.

19 Q So you started working with the computers prior

20 to 1993?

21 A Yes, ma'am, I have been working with some word

22 processing programs such as the Word Start.

23 Q That was from what period of time prior to your

24 entering the PNP?

25 A Could you clarify that for me.

2057

1 Q You stated that you were familiar with the

2 computers, that you were working with computers prior to

3 your entering the PNP. I would like to know, when did you

4 first begin to work with computers?

5 A Yes, ma'am. As I have said, my background with

6 working with the computers came to me as I was employed as a

7 civilian employee of the PNP, working in the same office,

8 doing the same job, until eventually I was given the

9 official title that I have. This, my job there when I was a

10 civilian consist of encoding reports, the same thing that I

11 was doing at that time when I handled that computer, and I

12 would say that that period probably covered around the years

13 of 1991 to 1992.

14 Q So from 1991 when you started working with

15 computers, you basically typed documents into the computer?

16 A Yes, ma'am.

17 Q You mentioned that at the time when Major Ferro

18 instructed you to work on the computer that was given to

19 you, that you were not very familiar with computers, is that

20 correct?

21 A What I meant, ma'am, was that at that time, at

22 that particular time when I came to work with Major Ferro,

23 that my knowledge of the Windows program was limited. I was

24 just initially learning how to use this.

25 Q These crash courses in computer that you took,

2058

1 when did you take them?

2 A Some of these and most of these were informal

3 sessions that was given to me by people that were working

4 within the units of the same office, and they taught me how

5 to use it, or sometimes I would approach and ask them how to

6 use it.

7 Q Yesterday you testified about doing a seminar, I

8 believe you stated, in a computer course. When did that

9 seminar occur?

10 A Ma'am, I cannot remember exactly when this

11 seminar had occurred, but what I can tell you is, the

12 program that we attended for this seminar was not a program

13 on Windows.

14 Q What was it on?

15 A It was an IBM system that is being used at the

16 PNP, and I would say that was called Display Right perhaps.

17 Q Display Right, is that what you said?

18 A Yes, ma'am.

19 Q Did that seminar include instruction on technical

20 operations of the computer?

21 A Basically, this was just a basic course on the

22 preparation of documents, the formatting of documents, how

23 you would enter the documents into the computer, certain

24 aspects of how it operates, the styles that would come out

25 as you prepared these documents. It was a basic procedure.

2059

1 Q Was this seminar taken in a school or some kind

2 of training program, or was it given by a company?

3 A It was within the command of the PNP, and I would

4 say, what I would consider this was an in-house and informal

5 sort of seminar that was asked by the PNP through the IC.

6 Q So in addition to on-the-job training from your

7 colleagues and this seminar, you have not really had any

8 formal training with respect to computers, is that correct?

9 A Yes.

10 Q Major Ferro is your immediate supervisor, is that

11 correct?

12 A Yes, ma'am.

13 Q How long has he been your immediate supervisor?

14 A It is for quite sometime. I would say around the

15 incident of January 1995, probably for about a year already.

16 Q When you testified, when you stated that at the

17 time that you received the computer that you were still

18 familiarizing yourself with it, what did you mean by that?

19 A What I meant by that was, I did not touch the

20 sections of this that I did not know anything about, that I

21 meant that I just look at the menu and see the things that I

22 was familiar with.

23 Q When Major Ferro asked you to browse through the

24 computer, did you tell him of your limited experience with

25 respect to computers?

2060

1 A No, I did not tell him, but I am sure that he is

2 aware of my capabilities on the basis that it is limited,

3 and I am sure that he knew that it was the basics that I did

4 know about.

5 Q Was he your supervisor at the time that you took

6 the seminar?

7 A Yes.

8 Q Was he responsible for you doing that seminar?

9 A It was under my own initiative that I attended

10 the seminar, so that I could learn more and add on to what I

11 know.

12 Q How long before this date that Major Ferro gave

13 you this computer, how long before that had you attended

14 this seminar?

15 A It was quite sometime. I cannot tell you

16 exactly.

17 Q When Major Ferro gave you this computer, did you

18 know where he got it from?

19 A I didn't have any idea.

20 Q Did you know at the time if the computer, if

21 Major Ferro's possession of the computer was as a result of

22 a specific situation?


24 THE COURT: Go ahead, answer it.

25 A At that period of time when he turned it over to

2061

1 me, I didn't know anything about this. All he did was to

2 turn it over to me and ask me to do the task that he had

3 asked me to do, which was to browse.


5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2062

1 Q You said at that specific time. Did you later

2 learn that that computer was the result of a specific

3 situation?


5 THE COURT: Do you know what is coming out? Do

6 you really want to ask the question?

7 MS. BARRETT: I will withdraw it, your Honor, and

8 can we break for lunch now?

9 THE COURT: All right, ladies and gentlemen. It

10 is 12:30. How time flies.


12

13

14

15

16

17

18

19

20

21

22

23

24

25

2063

1 AFTERNOON SESSION

2 2:00 p.m.


4 MR. GREENFIELD: Your Honor, you want to hear

5 applications now?

6 THE COURT: Oh, sure.

7 MR. GREENFIELD: I have two. One is a prior

8 application made, but the witness on the stand is a perfect

9 example as to why I believe I should remake the application

10 again.

11 I think June 27th the government decided that the

12 proof of plan with respect to the purported conspiracy with

13 regard to the Pope was going to be coming into evidence, and

14 we had never received any notice of that prior to June 27th.

15 I made a motion for a dismissal of the indictment at that

16 time for any number of reasons which I don't have to go into

17 now, but again, with the witness on the stand, it's clear

18 that he was an anticipated government witness, according to

19 the notes, on October 1st, 1995, and he was somebody that

20 was interviewed in October of 1995 with respect to what

21 occurred back in January of '95, such as entering the

22 computer and browsing it for information, things of that

23 sort.

24 Right in the notes there are a couple of

25 indications that he was involved somehow not only with the

2064

1 computer, but involved in the investigation that may relate

2 to the Pope, and clearly the government knew that and we

3 didn't know that and the Court didn't know that. And when

4 this jury was selected, you didn't know that. And when you

5 voir dired the jury, certainly there would have been, at

6 least at my request, an issue for voir dire. Just as people

7 from the Jewish religion were questioned as to their being

8 fair as jurors here, certainly people who might have been

9 aware that the Pope might have been a target of these

10 defendants, according to the government, certain Catholics

11 might not have wished to sit, either, and there are seven to

12 my count that are in the box now.

13 Clearly it's something that the government knew

14 was going to come out during the course of this trial. Now,

15 when we sought it pretrial, they said no. Again the court

16 was precluded from knowing this information, and we were put

17 in an untenable position I think as a result of the

18 government's conduct, and as such, I move for dismissal of

19 the indictment.

20 THE COURT: It's same motion you made. It's the

21 same ruling.

22 MR. GREENFIELD: And also, after the dismissal,

23 mistrial, obviously, and then a cautionary instruction to

24 the jury with respect to --

25 THE COURT: A cautionary instruction, under the

2065

1 circumstances here, I think may cause more damage than

2 anything else. If you can get your co-counsel to agree on a

3 cautionary instruction, I'll give it to them.

4 MR. GREENFIELD: Well, I would have to think

5 about that, your Honor. I don't necessarily disagree with

6 the Court. I think there is nothing as limiting as

7 cautionary instructions, and also limiting instructions.

8 And I think the Court Supreme Court said that when they were

9 talking about Bruton. You just can't do it. That's really

10 why I would press my prior motion for a dismissal and/or a

11 mistrial. You may be right that there may not be any relief

12 to be granted, but certainly we should have known and we

13 shouldn't have been put in this untenable position.

14 And I think Mr. Kulcsar has an application now

15 with regard to photographs that we just got, and I may add

16 something to that, also.

17 MR. KULCSAR: I have a legal advisor-type

18 application, but I can wait until this witness is finished

19 if you would like to bring the jury out, your Honor.

20 THE COURT: Do it now. By the way, I don't know

21 anything about photographs. I don't have them. Oh, do I

22 have them? Oh, okay. I thought that was a magazine or

23 something.

24 MR. KULCSAR: Defense counsel and now,

25 apparently, the Court have been provided with a series of

2066

1 color photographs which the government represents to be

2 photographs taken inside room 603 at or about the time of

3 the search or the incidents that have been the subject of

4 testimony of countless Filipino witnesses.

5 These, by the way, are photographs that defense

6 counsel was aware of from the CBS video, which are different

7 and still not available, apparently, but these photographs

8 are among the photographs that defense counsel had requested

9 to be made available to them long before we had the pleasure

10 of gathering here some months ago and obviously would have

11 been the subject of examination of a number of witnesses

12 that have been already called by the government.

13 Defense counsel does request that the Court

14 preclude their introduction at this point because the

15 government, by allowing these photographs to come into

16 evidence now, for whatever the reason they've now just

17 become available to them, has deprived the defense of their

18 ability to cross-examine other witnesses concerning what

19 they saw or did not see during the time they were in the

20 apartment and have been allowed to cross-examine on a

21 limited basis. And certainly whatever the next witness who

22 will be the person introducing these photographs is able to

23 testify about might be significantly contradicted by

24 witnesses no longer available to the defense.

25 The other aspect, I think, your Honor, in all

2067

1 candor and forthrightness --

2 THE COURT: Let me find out about these first.

3 MR. KULCSAR: I'm relating to that as well, your

4 Honor.

5 The other problem, and I think your Honor

6 obviously is aware of it from the cross-examination and

7 requests that have been made during the trial by counsel,

8 it's not fair in the least to be in the position of defense

9 counsel trying a case where the genesis is in the

10 Philippines and Pakistan and requests are repeatedly made

11 for evidence in the way of photographs and other physical

12 evidence such as diskettes and printouts and things like

13 that, and notes, and being regularly confronted with the

14 response they're in the Philippines and we can't get them

15 and being confronted by selective evidence that is

16 available.

17 It seems clear that what's good for the goose

18 should be good for the gandir. If they can get it, then

19 everybody should have access to the same type of material,

20 and defense counsel and the defendants should not be

21 subjected to evidence such as this where, in the middle, or

22 hopefully in the middle, at least, of the trial we see for

23 the first time material that should have been the subject of

24 discovery long before the case started. Thank you.

25 THE COURT: I want to find out where these came

2068

1 from.

2 MR. SNELL: Your Honor, the government just

3 obtained the photographs that the Court has before it right

4 now. They arrived in two installments, the second of which

5 arrived this morning from Manila by DHL.

6 Pursuant to the Court's instructions and also

7 repeated requests by defense counsel, the government has

8 sought to follow up on the existence of additional

9 photographs, and we thought that, actually, our efforts

10 might be met with somewhat a different reaction than what

11 we're hearing now. I mean, we've actually obtained

12 photographs, and it seems that the selectivity is really in

13 the arguments of counsel. Previously we obtained a sketch

14 earlier in the trial that was turned over and, of course,

15 used by the defense in their case.

16 THE COURT: Some of these things, are you

17 intending to introduce them, that's the question?

18 MR. SNELL: Yes, your Honor, some of them we are,

19 not all.

20 THE COURT: Which ones are you intending to

21 introduce?

22 MR. SNELL: If I might have a moment, your Honor.

23 I think we've already had them premarked.

24 THE COURT: These are 361A, B, C, D and E. Those

25 are the ones that you intend to offer, correct?

2069

1 MR. SNELL: Those, your Honor, plus the other

2 pile that is on the bench.

3 THE COURT: Plus the other pile being 360A

4 through J.

5 MR. SNELL: Yes, your Honor.

6 THE COURT: The answer is don't bother. You're

7 not going to get them in.

8 Now, you want to say something?

9 MR. GREENFIELD: Only half of what I was about to

10 say or less.

11 THE COURT: Good.

12 MR. GREENFIELD: The other problem that we

13 have --

14 THE COURT: Look, this is not a ruling. If the

15 defense opens the door to these things, they'll have to come

16 in.

17 MR. GREENFIELD: I understand what the Court is

18 saying.

19 The other problem that we have with respect to

20 using the photographs that have just been produced as an

21 example of what I want to say is that clearly the Philippine

22 Government is an agent of the U.S. Government here in

23 production, and the same duty that the U.S. Government would

24 have in a prosecution here I believe should be placed on the

25 Philippine Government.

2070

1 And I know the Court asked the government earlier

2 on to find out just exactly what's over there and let us

3 know exactly what's coming, and we never got an answer to

4 that. And I think that there really are some substantial

5 due process questions that are starting to emerge that I

6 told the Court pretrial would emerge. And if we're having

7 selective production only "helpful" to the government which

8 is being produced by the Philippine authorities, then we're

9 not having a trial under the usual standards. And I'm not

10 saying the Court is conducting this, but it's somehow being

11 orchestrated by those people in the Philippines giving us

12 what they think the government needs to help them get to

13 where they want to go, and that's just not the right way to

14 try a case in a courtroom in the United States.

15 THE COURT: Okay, you made your record.

16 Get the witness.


18 CROSS-EXAMINATION CONTINUED

19 BY MS. BARRETT:

20 Q Mr. Macachor, this opportunity that was given by

21 your immediate supervisor, Maj. Ferro, to browse the laptop

22 computer, this happened one Saturday evening in January

23 1995?

24 A Yes. That was on an early evening on a Saturday

25 in the month of January, over the weekend.

2071

1 Q And that was the first time you saw the computer?

2 A Yes, this was the first time that I had seen this

3 computer.

4 Q Do you recollect that day to be a Saturday

5 because it was a day off for you?

6 A Yes. Usually on the weekend I am the person that

7 is put on standby so that there would be no other personnel

8 there in that office, and so when they needed someone to

9 look at that computer, it was me that was at the office at

10 that time.

11 Q Now, sir, do you recall being interviewed by Mr.

12 Snell here at Camp Crame prior to coming to the United

13 States and testifying?

14 A Yes, ma'am, I remember that.

15 Q And that interview occurred in October of 1995?

16 A That is possible, but I'm not sure, ma'am.

17 Q Well, how many times did you meet with Mr. Snell

18 in the Philippines?

19 A It was only one time, that time that he

20 interviewed with me.

21 Q Now, during that meeting, do you recall

22 discussing your activities with respect to the laptop

23 computer with Mr. Snell, and do you recall him asking you

24 when it was that you first saw the computer?

25 A Yes, I remember that he asked me how I was able

2072

1 to access the computer.

2 Q Sir, isn't it a fact that you told Mr. Snell that

3 the first time you saw the computer was on a Monday or a

4 Tuesday?

5 A No, that is not correct, ma'am. What I remember

6 telling him was that I happened to encounter this computer

7 the first time on a weekend, and that was a nonworking day,

8 and there was no people working in our office, so that I did

9 it. And I remember distinctly that Monday I was out in the

10 field.

11 MS. BARRETT: Your Honor, may I show the witness

12 a document?

13 THE COURT: Sure. 3520A?

14 MS. BARRETT: It's supposed to be 3520A, your

15 Honor, but I rewrote it.

16 THE COURT: Something you have other than this?

17 MS. BARRETT: It's the same document but it's

18 written differently, more legible.


20 Q Sir, would you look at the highlighted portion

21 and read it to yourself or have the interpreter read it to

22 you.

23 A Yes.

24 THE INTERPRETER: He wants me to read it to him.

25 (Interpreter complied)

2073

1 A What is your question?

2 Q After reading that, does that refresh your

3 recollection that you told Mr. Snell that the first time you

4 saw the computer was on a Monday or a Tuesday?

5 A This is wrong, ma'am. What I remember saying to

6 him was that this had happened on a weekend when there was

7 no work to be done in our office and there were no regular

8 work. And I also remember this because it was on that

9 weekend -- in fact, it was a week before the Pope was

10 scheduled to arrive in the Philippines, and I remember

11 distinctly that that Monday we were instructed to go out in

12 the field to do some related work.

13 Q When you were speaking to Mr. Snell, did you see

14 him taking notes?

15 A Yes.

16 Q And did you see him writing down what you were

17 saying?

18 A Perhaps.

19 Q Now, you said you were on standby the day that

20 you were called to look at the computer. When you are on

21 standby, are you at Camp Crame or are you at home?

22 A It does not exactly work that way, ma'am. When I

23 say on standby, that means that I can be called to work at

24 any time, and so when I am on standby, normally I would

25 spend my time there at Camp Crame, although I am not

2074

1 instructed to do that. And so it happens that that

2 particular day when I was on standby and they had asked me

3 to look at this computer, I had happened to be there. So

4 it's not exactly the way you had said it was.

5 Q And that was Saturday evening?

6 A Yes. I had gone there early in the Saturday

7 afternoon, so a few hours later that afternoon, as I was

8 about ready to go home, that's when they saw me and they had

9 asked me to do this work.

10 Q Sir, do you deny telling Mr. Snell that it was a

11 Monday or a Tuesday that you first saw the computer?

12 A Ma'am, I am not saying that I deny what Mr. --

13 what you're saying that Mr. Snell had written, but what I am

14 telling you is what I remember in my mind, that this was a

15 weekend and there was no work to be done that day and that

16 was the day that I remember this.

17 Q Now, you worked on the computer for I believe you

18 said four to six hours?

19 A An approximate time, yes.

20 Q And when you worked on the computer, you said you

21 looked at files?

22 A Yes. I was looking into the program, into the

23 write files program, to see if there were any files there.

24 Q Now, the write files programs, are they the same

25 as the text files programs?

2075

1 A No, they're not.

2 Q But aren't they both word processing programs?


4 Q Aren't they both word processing files?

5 A No, ma'am. What I can tell you is I looked at

6 the text files and just by the word that says text that I

7 think defines it as a file that would contain information

8 that would probably be in letter form. So, going into the

9 location that says text file, then I was able to look into

10 this.

11 Q A text file is a readable file, is that correct?

12 A That is correct.

13 Q And a write file, that is also a readable file,

14 is that correct?

15 A Yes.

16 Q Now, did you use a program manager to look into

17 the files?

18 A Yes, I used a program manager, the program

19 manager which has the central program, the center where you

20 can access the information that you want to get as an

21 initial stage of trying to get into it.

22 Q Now, you first looked at the directory, is that

23 correct?

24 A No. I went directly into the write.

25 Q Well, how did you select what files to look in?

2076

1 A Yes, you look into this computer and there would

2 be this icons that would tell you. And then when you access

3 this icons, you go into this group accessories program. And

4 when you access that particular accessories group, you can

5 locate that icon that says write program and you are able to

6 open this.

7 Q Well, sir, when you look in the computer first,

8 isn't it a fact that the first thing that you see when you

9 access the computer are the list of directories?

10 A What are you referring to when you say a

11 directory? You are you referring to the DOS or the Windows?

12 Q Well, files. Isn't it fair to say that files are

13 located in directories? You first have to go into the

14 directories, select a directory, and then you see what kind

15 of files are in there. And when you go into the files, the

16 list of files, you can then select a particular file that

17 you want to view. Isn't that how the information is

18 organized in the computer?

19 A Yes, that is correct, ma'am. When I go to open

20 the write file that is in the menu, that file is in the

21 Windows form. And then, as you to go that file, the Windows

22 open and other Windows open, and then it opens and it

23 directs you as to what files would be there. In this

24 particular location I was unable to find or locate any files

25 that made any sense to me.

2077

1 Q So, despite your limited education in computers,

2 you were able to access the computer, look at directories,

3 look at files in directories, a list of files in

4 directories, and then select files to view?



7 Q Did you select files to view after accessing the

8 directories and viewing the list of files and then select

9 files; did you do that?

10 A What I did was -- let me explain it to you this

11 way -- was that when I went to the write file, I was not

12 familiar with how this particular file works, and so what I

13 did was I went to the file types. And when you go to the

14 file types, you are able to locate where a section would say

15 text files. And this is the location that I went to. Going

16 into the location of the text files, as you go in there, you

17 would see the different kinds of information or documents

18 that would have been entered in this text file. After

19 having looked at what the contents of the text file were,

20 looking at it one by one, I looked into the documents that

21 would be contained in this particular section of the text

22 file.

23 Q Now, Maj. Ferro, he was with you at the time that

24 you were looking at these files?

25 A Not really. There were moments that he would

2078

1 come out of the office, but he would just look out and then

2 come back to his office for a period of time, and so I was

3 the one that was working with this.

4 Q And the computer was in Maj. Ferro's office?

5 A Yes, ma'am.

6 Q And you said you worked until about 2 in the

7 morning?

8 A Yes, ma'am. I left the office at around that

9 time.

10 Q Now, you didn't print materials from the computer

11 at that time, was that your testimony?

12 A That first time, no, I didn't do anything.


14

15

16

17

18

19

20

21

22

23

24

25

2079

1 Q And you saw the computer approximately how long

2 after, the first time you saw the computer?

3 A It was about one and a half weeks after I had

4 initially seen this computer.

5 Q Do you remember if this was before the Pope left?

6 A The Pope had already departed by that time.

7 Q Do you know what date the Pope departed?

8 A I am not exactly sure. I think it fell on a

9 Monday, a Sunday or a Monday.

10 Q When you went to see the computer a second time,

11 was that again at Major Ferro's office?


13 Q Were you asked by Major Ferro to report to his

14 office to work on the computer again?

15 A No, ma'am, I was already in that office. I am

16 stationed at the office of Major Ferro, so at that time that

17 he saw me, he asked me to do what he needed done.

18 Q Was it a weekday or a weekend?

19 A It was on a regular day.

20 Q Meaning Monday through Friday?

21 A In between those days.

22 Q Was that in the evening?

23 A No, ma'am, it was during office hours.

24 Q It was at that time that you printed out

25 materials?

2080

1 A Yes, ma'am.

2 Q When did you come to the United States?

3 A It was about, I believe, the 17th of June.

4 Q Have you been staying here along with other

5 people from the Philippines in connection with this case?

6 A Yes, but we stay in separate locations.

7 Q Is one of those persons Reynaldo Canlas?

8 A Yes.

9 Q Do you know Reynaldo Canlas as a computer

10 consultant to the PNP?

11 A Yes, I know him and I have met him.

12 Q Did you know him in January of 1995?

13 A Yes, ma'am.

14 Q When you printed the materials in the computer,

15 was he present there?

16 A No, ma'am, he wasn't there. Mr. Canlas was not

17 there.

18 Q Was Major Ferro present at that time?

19 A Yes, ma'am, he was there, and I turned over the

20 printouts to him.

21 Q Were you the only one working on the computer at

22 the time that you made these printouts?

23 A As far as I know, I was the only one that was

24 handling that computer.

25 Q Could you repeat, please.

2081

1 THE COURT: Would you read it back.

2 (Record read)

3 Q You were the only one that was handling the

4 computer? Is that your testimony?? Is that what you knew?


6 THE COURT: That is exactly what he said. Next

7 question.

8 Q When you were given the computer on Saturday

9 evening in January, that Saturday evening in January, was it

10 your understanding that you were the first person that Major

11 Ferro asked to work on the computer?

12 MR. KULCSAR: Objection.



15 A I didn't know whether this was given to someone

16 else before he gave it to me.

17 Q To your knowledge, does Major Ferro have computer

18 skills?

19 THE INTERPRETER: Would you repeat for the

20 interpreter, please.

21 Q To your knowledge, does Major Ferro have computer

22 skills and does he work on the computers?

23 A As far as I know, his knowledge is limited. He

24 would know Word Start but he is not familiar with Windows.

25 Q Have you ever seen him work on computers?

2082

1 A Yes. I have not seen him personally working or

2 doing some writing in the computer. What would happen is,

3 if a task needed to be done that neccessitated the use of a

4 computer, this task was then delegated to us, his personnel.

5 Q You stated that you learned about computers from

6 people that you work with, is that correct?

7 A Yes, I learned it from personnel that work within

8 the unit of our office, the IC, but I didn't mean to tell

9 you that it was exactly from personnel that were working

10 right there in our office.

11 Q Is it common practice for the persons in your

12 office with more expertise to teach other people with less

13 expertise in your office about computers?


15 THE COURT: Go ahead and answer it.

16 A Ma'am, unfortunately, our resources are limited

17 in that office, so that in order to learn the aspects of

18 working with the computer, we would depend on an association

19 and cooperation with other members of the offices within the

20 unit. We take our own initiative so that we can expand our

21 knowledge.

22 Q But you learned computers from the people that

23 you work with, correct?


25 Q Is Major Ferro the boss of that office, that

2083

1 unit?

2 A There is somebody that is higher ranking than

3 him. He is just a chief of that particular branch.

4 Q Chief of that particular branch, meaning that

5 location?

6 A He is the chief of the technical support branch

7 and that is his office.

8 Q Of that unit that he is chief of, did you ever

9 see him take an instruction from anyone there about

10 computers?

11 A That part, I don't know, ma'am.

12 Q Prior to the time that you spoke to Mr. Snell,

13 did you speak to Major Ferro about your activities with the

14 computer?

15 THE INTERPRETER: Could you repeat for the

16 interpreter.

17 Q Prior to the time that you spoke to Mr. Snell in

18 October 1995, did you speak to Major Ferro about your

19 activities with the computer?

20 A Yes, I had some desire to talk to him about it,

21 but unfortunately the schedules had conflict and I was never

22 able to talk to him about it.

23 Q Did you talk to anyone else about your activities

24 prior to going to speak to Mr. Snell?

25 A No, ma'am, no one else. I wasn't paying much

2084

1 attention to these matters.

2 Q Again, sir, do you deny that you told Mr. Snell

3 that it was a Monday or Tuesday or that you first saw the

4 computer?


6 Q The last time you saw the computer was when?

7 A The second and the last time that I saw this

8 computer was when he had asked me to make a printout of the

9 contents of the computer, and that happened to fall on a

10 working day.

11 Q When were you made aware that you were coming to

12 the United States to testify?

13 A I had an inkling and some idea when the attorneys

14 and the FBI came to speak to us.

15 Q Who told you that you were going to be coming

16 here to testify?

17 A It was Mr. Snell, and he said that we may be

18 needed to be witnesses to testify here.

19 Q You said that prior to speaking to Mr. Snell you

20 desired to speak to Major Ferro but you weren't able to.

21 Were you able to speak to him prior to coming here to

22 testify?

23 A Yes, we had spoken, but the things that we spoke

24 about were not related to what we have here today.

25 Q When is the last time you spoke to him prior to

2085

1 coming here?

2 A I believe it was sometime last week at the hotel.

3 Q Is Major Ferro here in the United States, to your

4 knowledge?

5 A Yes, he is staying in the same location that we

6 are in at this time.

7 Q Sir, did you review your testimony yesterday with

8 Mr. Snell at the end of the day?

9 A No.

10 Q Did you speak with him this morning?

11 A Yes.

12 MS. BARRETT: No further questions.




16 Q Sir, you were talking about the regular business

17 hours of the Intelligence Command. Is that Monday to

18 Friday, 9 to 5?

19 A What I would consider as normal working hours for

20 government offices would be from 8 to 5.

21 Q 8 to 5, and from 8 to 5, Monday to Friday, the

22 Intelligence Command is in operation, is that fair to say?

23 THE INTERPRETER: Would you repeat that for the

24 interpreter.

25 Q Monday to Friday, 8 to 5, the Intelligence

2086

1 Command is in operation.

2 A When I say operation, sir, I mean that the

3 regular course of a working day would be from 8 to 5. But

4 if you are talking about the operation of the Intelligence

5 Command, that would be all day, and there are times that

6 this continues on and keeps on going, day after day after

7 day.

8 Q Are the offices manned 24 hours a day?

9 A Could you repeat that question.

10 Q Are the offices of the PNP Intelligence Command

11 manned 24 hours a day?

12 A Yes, sir. Far and beyond the regular working

13 hours there would be personnel that are assigned to work,

14 and you could term this as alert teams, and they are

15 assigned specific areas for that period of time.

16 Q Sir, on January 7, 1995, did you participate in

17 any raids anywhere in Manila?

18 A No, sir, I did not participate in such a thing.

19 Q When you were questioned by Mr. Snell --

20 THE COURT: Wait a minute. Let's make sure.

21 Take out the word raid. On January 7, did you participate

22 in any kind of search pursuant to search warrant?

23 THE WITNESS: No, sir, I didn't.

24 Q Were you aware of any police action, searches,

25 raids on or around January 7, 1995, that took place in Metro

2087

1 Manila?

2 A No, sir, I don't know anything about an incident

3 happening around that time.

4 Q Sir, when you came to the offices, you say on the

5 weekend in January of 1995, were you just told here is a

6 computer, look for information, or were you told without

7 getting into it something beyond that?

8 THE COURT: Hold it, Mr. Interpreter. The

9 question was specifically was he told here is the computer,

10 see what you can do with it, or was it more than that, one

11 or the other?

12 A What I was told was to look into was the contents

13 of this computer. Whether this was something else or not,

14 nothing was said to me.

15 Q Sir, as I understand your testimony, you had

16 contact with this computer on two separate days. Is that a

17 fair statement?

18 A Yes, sir.

19 Q And correct me if I am wrong, the first time when

20 you have contact with the computer you browse it to see what

21 information you can gather, is that a fair statement?

22 A What I can tell you, sir, was I browsed it and I

23 went to look into the write program, and that was the extent

24 of it.

25 Q And the second time you didn't browse it, the

2088

1 second time you printed. Fair statement?

2 A Yes, sir, that was the time that I said that I

3 copied the information from this computer and that in turn I

4 copied it into the computer that we had and made a printout

5 of this.

6 Q Sir, when you were questioned by Mr. Snell in

7 1995, October of 1995, you basically were questioned about

8 these two incidents we have just described, correct?


10 Q With respect to the first time you had access,

11 when you browsed the file, isn't it a fact you told

12 Mr. Snell that the computer was given to Mr. Ferro, or Major

13 Ferro, Monday or Tuesday after the raids? Did you say that

14 to him?

15 A Yes, sir. What I can tell you is perhaps it was

16 possible that that's what Mr. Snell had remembered, but what

17 I remembered is that this happened on a Saturday, and it was

18 an evening where there was no work to be done in our

19 offices, and that was a weekend, later on in the afternoon,

20 that I was given the task to work on this computer. Whether

21 this was Monday or Tuesday, I don't know, but what I know

22 is, it was on a weekend.

23 Q Sir, did you tell him it was after the raids?

24 A At that time that I handled that computer, that

25 first time -- that was a Saturday -- I didn't know that

2089

1 there was such a raid. Eventually perhaps when I talked to

2 Mr. Snell, perhaps I had mentioned, when I had learned later

3 that there was a raid that happened on a Saturday.

4 MR. KULCSAR: Object. Your Honor, could we have

5 the last answer stricken as not responsive?

6 THE COURT: No.

7 Q You said raids, didn't you?

8 A What are you asking me?

9 Q When you spoke to Mr. Snell, you didn't say raid,

10 you said raids, isn't that right?

11 A Yes, sir, by the time I had spoken to Mr. Snell

12 that time, I had learned that there were some raids that

13 have happened. As to when and how many of these raids

14 occurred, I don't know. All I can tell you was that

15 Saturday that I had that computer, I didn't know that such a

16 raid or raids had occurred.

17 Q Sir, is it your testimony that when you were in

18 there on this Saturday that you are talking about, that

19 there was no or very little activity in the offices of the

20 Intelligence Command?

21 A Whether or not anything was happening at that

22 time I don't know, but my observation was when I came to the

23 office at that time, everything was normal and quiet.

24 Q And in your recollection now as you sit on the

25 stand, it wasn't a Monday or Tuesday that this happened but

2090

1 it was a Saturday.


3 THE COURT: He testified to that.

4 Q Sir, did you also tell Mr. Snell back in October

5 of 1995 that two or three days after the computer arrived in

6 Major Ferro's office, you then browsed the file? File

7 manager, excuse me.

8 A I don't remember saying that.

9 Q Are you saying you didn't say it or just that you

10 don't recall saying it?

11 A What I remember was what I had told you, sir, but

12 I cannot remember distinctly all the details of this case.

13 It has been quite sometime.

14 Q Quite sometime going back to January of 1995,

15 correct?

16 A Yes, that time as well as the time that Mr. Snell

17 spoke to me, that has been quite sometime ago.


19

20

21

22

23

24

25

2091

1 Q But you are saying now you have no recollection

2 of whether or not you told Mr. Snell that two or three days

3 after the computer arrived you browsed the file manager?



6 MR. GREENFIELD: No further questions, your

7 Honor.

8 THE COURT: Any redirect?




12 THE COURT: Tell you what, ladies and gentlemen.

13 We might as well take our afternoon break at this point,

14 too.

15 (Jury excused)

16 THE COURT: Do you want to surprise me or do you

17 want to tell me who is next?

18 MR. SNELL: I don't think it will be a surprise,

19 your Honor. Jose Cruz.

20 THE COURT: I figured it was Ferro.

21 (Recess)

22 (Jury present)


24

25

2092

1 JOSE CRUZ, JR.,



4 MR. SNELL: May I proceed, your Honor?

5 THE COURT: Please.


7 BY MR. SNELL:

8 Q Mr. Cruz, sir, what do you do for a living?

9 A Yes. I am currently self-employed. I work

10 occasionally part-time doing accounting for some books. I

11 also do some lecturing, and I also sometimes employ myself

12 with a private security firm.

13 Q What did you do before you became

14 self-employed -- professionally, that is?

15 A I am a member of the police, sir.

16 Q Is that the Philippine National Police?

17 A Yes, sir.

18 Q How long were you a member of the Philippine

19 National Police?

20 A I am a policeman for 30 and one half years, sir.

21 Q When did you retire -- from the police force,

22 that is?

23 A I retired on March 25, 1995.

24 Q While you were with the Philippine National

25 Police, did you specialize in any particular area of law

2093

1 enforcement?

2 A Yes, sir.

3 Q In what area was that?

4 A Yes. I am trained in the explosive ordinance

5 disposal course.

6 Q Did you work in the area of explosive ordinance

7 disposal?

8 A Yes, sir.

9 Q Where did you do that work?

10 A I have been doing this for the police since 1972

11 when this particular unit was formed.

12 Q Which unit are you referring to?

13 A It is the explosive ordinance disposal unit of

14 what was the Manila police at that time.

15 Q At that time, meaning 1972?

16 A Yes, sir.

17 Q Did that unit become known as a different

18 jurisdiction or title?

19 A In 1991, that became the Philippine National

20 Police.

21 Q Was there a certain part of the Philippine

22 National Police that you were assigned to?

23 A Yes, sir. It is with the Western Police District

24 Command, which includes comprising the city of Manila.

25 Q Did you hold a position or rank within that unit?

2094

1 A Before I retired, I was the chief of that

2 particular unit and I had the title of inspector.

3 Q How long did you hold that position?

4 A For about five years, sir.

5 Q Does the title of inspector that you held have an

6 equivalent in military rankings?

7 A It would be the equivalent of a lieutenant.

8 Q Were you ever part of the Philippine military?

9 A No, sir, I didn't.

10 Q At or around the time of your retirement, were

11 you presented with a certificate by the United States

12 government commending your work?

13 A Yes, sir.

14 Q Mr. Cruz, let me direct your attention to the

15 night of January 6, going to January 7, of 1995. Where were

16 you at that time?

17 A I was at my residence, sir.

18 Q What happened while you were there that night?

19 A Yes. At around 2:00, early in the morning, I

20 received a call from my office and I was instructed that I

21 was to contact and call Mr. Ramilo, one of the personnel

22 that I am in charge of, and I was to contact him at the

23 Josefa Apartments.

24 Q What is Mr. Ramilo's first name?

25 A His first name is Orlando Ramilo. MARK0/0/0.

2095

1 Q Where are the Josefa Apartments located?

2 A That is located at 711 President Quirino Avenue,

3 Malate, Manila.

4 Q What did you do after you received this telephone

5 call?

6 A I placed a call to contact Mr. Ramilo at the


8 Q After your conversation with Mr. Ramilo, what did

9 you do?

10 A Yes. I quickly got dressed and got ready, and I

11 proceeded to that location.

12 Q What happened when you arrived at the Josefa

13 Apartments?

14 A Yes. I arrived there and I asked the policemen

15 where I should direct myself, and I was directed to head on

16 upstairs to the sixth floor.

17 Q What did you see when you got to the sixth floor?

18 A Yes. When I got to the sixth floor I was met by

19 Mr. Ramilo, Mr. Mandigma, who is another one of my

20 personnel. There was Captain Fariscal and there was a

21 foreigner there, who looked like he was of Middle Eastern

22 extraction.

23 Q Did you say Mr. Mandigma?

24 A Yes, sir.

25 Q Was he one of the men in your unit?

2096

1 A Yes, sir.

2 Q Who was Captain Fariscal?

3 A Yes, sir, she was a policewoman and she was from

4 station number 9, and they had jurisdiction for that

5 particular location.

6 Q You mentioned that there was also someone who

7 appeared to be of Middle Eastern extraction there, is that

8 right?

9 A Yes, sir.

10 Q Do you remember what that person looked like?

11 A I would say that he would be about 30 years old.

12 He looks like he was a hairy person, but then again he had

13 no facial hair at that time.

14 Q Mr. Cruz, I would like you to take a look around

15 the courtroom and tell us whether you see the person who was

16 the person that you just described in the courtroom today?

17 THE INTERPRETER: He said his eyesight is a

18 little bit poor, if he could --

19 A May I go down?

20 THE COURT: Sure.

21 A Counting from this end, 1, 2, 3, 4, 5, the big

22 person that is bearing a suit. I believe that that is a red

23 tie that he is wearing.

24 MR. SNELL: Your Honor, may the record reflect an

25 identification?

2097

1 THE COURT: Yes, Mr. Murad is identified.

2 Q Mr. Cruz, what were your men, Mr. Ramilo and

3 Mr. Mandigma, doing when you first saw them at the sixth

4 floor?

5 A They were inspecting the contents of that room.

6 Q Which room are you referring to?

7 A I am referring to room 603 of the Josefa

8 Apartments.

9 Q Could you describe what that room looked like

10 when you first entered it?

11 A Yes. There were a lot of things scattered inside

12 that room. It was quite chaotic. There were some bottles

13 of different kinds of chemicals. There were different kinds

14 of electronic parts that were scattered around. There were

15 different kinds of electronic wires scattered around. There

16 were some watches that I saw. There were some timers.

17 There was some cotton. There was gasoline. There was some

18 sugar. There were some cooking stoves. There was a

19 crucifix. There were some bibles there. There were

20 different kinds of books. I believe there was a dictionary.

21 There were books referring to electronics. There were some

22 men's cosmetics. Scattered around there were also some

23 business cards. They looked like ID cards, they looked like

24 calling cards. And there were just a lot of things. Yes, I

25 also saw some pipes that were empty.

2098

1 Q Let me ask you first, sir, with respect to the

2 watches that you mentioned, what sorts of watches did you

3 see?

4 A I saw some Casio watches and then I saw one Adec

5 watch.

6 Q Is that A-D-E-C?

7 A A-D-E-C.

8 Q Where did you see Casio watches?

9 A Inside the drawers of the two small tables.

10 Q Where were those tables located?

11 A Yes. One of them was close to the window inside

12 the bedroom, and the other one was at the foot of the bed,

13 inside the bedroom, and this particular one had the mirror

14 attached to it.

15 Q The table had the mirror attached to it?

16 A It was a small table that had the mirror like

17 this. What would you call that?

18 Q The Casio watches, did you get a look at them at

19 this time?

20 A I looked at them but I didn't touch them.

21 Q Did you notice anything in particular about the

22 Casio watches?

23 A Yes. The Casio watches, in particular there was

24 a wire attached attached to it when I saw it, and then there

25 were some batteries there, 9-volt batteries.

2099

1 Q How many of the Casio watches -- withdrawn.

2 You have mentioned also that you saw an Adec

3 watch, is it?

4 A Yes, sir.

5 Q Where was the Adec watch that you saw?

6 A Yes. This Adec watch was on top of the wires.

7 These wires were on top of the table, the table that I

8 mentioned to you that had the mirror attached to it.

9 Q Could you describe what the Adec watch looked

10 like?

11 A Yes. This Adec watch, it was only the body

12 itself. There was no strap attached to it. But then again

13 there was a wire, a piece of wire that was soldered to it.

14 Q You also mentioned seeing some pipes, I believe.

15 A Yes, sir.

16 Q Where did you see pipes?

17 A Yes, I did see some pipes. There were two that I

18 saw underneath the kitchen cabinet. The cabinet would be, I

19 believe, around the kitchen sink area. And then there was

20 one on top of that small table, and then there was another

21 one that was on top of the kitchen cabinet. This particular

22 one had some tape wrapped around it and some plastic.

23 Q What if anything did you do with the last pipe

24 that you just described, the one that was wrapped in tape,

25 after you noticed it?

2100

1 A Yes. This particular one that was wrapped in

2 tape and had some plastic in it seemed to contain something,

3 and it emitted a particular odor, so that perhaps -- we were

4 suspicious that this contained something, so as we went on,

5 we sort of just left it alone there for the time being.

6 Q You also mentioned that you saw some ID's or

7 calling cards, I believe.

8 A Yes, there were. I collected one.

9 Q Could you describe what the calling card that you

10 collected looked like.

11 A Yes. This particular calling card had some kind

12 of design on the left side, and on the other side of it was

13 the name Dr. Vijay written. Then it had the offices being

14 shown as offices that were around the Megamall.

15 Q Could you tell us, please, what the Megamall is.

16 A Yes. The Megamall is a large, gigantic shopping

17 complex that would be located in the city of Malate.

18 Q Is that in the Metro Manila area?



21 be shown what has been marked Government's Exhibit 320 for

22 identification.

23 Q Mr. Cruz, do you recognize what is there in

24 Government's Exhibit 320?

25 A This is like what I had collected.

2101

1 Q Is that a fair and accurate copy of the card that

2 you collected on that day?

3 A Yes, sir. As you can see, this Dr. Vijay, that

4 is the name and the address that is written here, at

5 Mandaluyong Megamall.

6 Q The rest of the exhibit underneath the card that

7 you are looking at, could you take a look at that and tell

8 us whether you recognize the other items in that container?

9 A Yes. This is what I had collected over there,

10 and there were a lot of these scattered all over the place.


12 Exhibit 320.

13 MR. KULCSAR: May we see it, please.

14 No objection, your Honor.

15 (Government's Exhibit 320 received in evidence)

16 THE COURT: I have gone through these fast. It

17 is a stack of cards. I assume you are willing to represent

18 that they are all the same.


20 Q Mr. Cruz, while you were inside apartment 603,

21 did there come a time when someone else arrived at the

22 apartment?

23 MR. GREENFIELD: Your Honor, I would object

24 because I think that question calls for a yes or no answer.

25 I think the answer is too long for a yes or no.

2102

1 THE COURT: I don't believe it necessarily

2 required a yes or no. Read it back to me just in case.

3 (Record read)

4 THE COURT: It could be viewed as a yes or no.

5 Go ahead, try it.

6 A Yes, sir.

7 Q Who arrived?

8 (Laughter)

9 THE INTERPRETER: OK, the way he is phrasing

10 this, he is giving me what he has spoken already.

11 MR. GREENFIELD: Objection, your Honor. It is

12 not responsive.

13 THE COURT: No, go ahead, answer. Give us the

14 answer that he is giving.

15 A Yes, I will do that.

16 Q Where are we?

17 Could you tell us, sir, who arrived at the

18 apartment?

19 A Yes. The people that arrived, there arrived

20 Major Bautista, who was the station commander for station

21 number 9. Also arrived at that time was General Ebdane, who

22 is the district director for that area,. Together with

23 General Ebdane were some people with the EOD unit of the

24 Malacanang, which is part of the presidential security

25 group. Later arrived General Canson, who is the regional

2103

1 commander for the district of Manila. Then also arrived

2 later on was Colonel Razon, who is part of the presidential

3 security group. General Canson is the commander for the

4 national region.

5 Q Are those men that you just identified all part

6 of the Philippine National Police?

7 A General Canson, Major Bautista and General

8 Ebdane, yes, and Colonel Razon is part of the presidential

9 security group.

10 Q What happened after these men arrived -- I assume

11 they are all men -- arrived at the apartment?

12 A Yes. After they have arrived, they looked and

13 they looked around and investigated in that same room where

14 we went in, where I had told you earlier the things that I

15 saw. These were the same things that they saw when they

16 looked around.

17 MR. GREENFIELD: Objection to what they saw.

18 THE COURT: No.

19 A These were the same things that they saw when

20 they looked around. At that time, they also saw the

21 computer that was pointed out to them --


23 THE COURT: No, I will permit it. Go ahead.

24 A At that time, they also saw the computer that was

25 shown to them by Mr. Ramilo and Mr. Mandigma. General Razon

2104

1 instructed us not to touch anything --

2 MR. GREENFIELD: Objection.

3 THE COURT: That part is out. Next question.

4 Q Were you present, sir, when the computer was

5 shown to the general?

6 A Yes, sir, I saw that.

7 Q What happened next after the officers looked

8 around the apartment?

9 A We were instructed not to touch anything and I

10 was instructed to apply for a warrant.

11 Q What do you mean by a warrant?

12 A That I was to apply for a search warrant.

13 Q What did you do after you got those instructions?

14 A What I did was, I collected some samples of the

15 things that were inside the room, and it was my intention to

16 take this in front of the judge so he can see what was

17 inside the room. I proceeded to get an empty attache case

18 which was in the bedroom. In that attache case I put a

19 Casio watch with a wire attached to it. I put inside the

20 attache case two batteries. I also put in the attache case

21 an empty pipe. Mr. Ramilo also handed me a folder with some

22 papers in it, and I had put that inside the attache case as

23 well.

24 Later on, as we were getting ready to go

25 downstairs, lastly, I picked out the suspicious device that

2105

1 was in the kitchen cabinet, and I put that into the attache

2 case.


4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2106

1 MR. SNELL: Your Honor, would this be an

2 appropriate time to break for the day?

3 THE COURT: Yes. That was just what I was

4 thinking about. All right, ladies and gentlemen, today is

5 Thursday. Have a great weekend.

6 (Jury excused)

7 (Witness excused)

8 THE COURT: I should point out strictly for

9 purposes of record that in dealing in a trial where you have

10 people of different cultures and different languages, it is

11 almost impossible to be 1,000 percent on target with rulings

12 on evidence. It may be, on a strictly, strictly technical

13 point of view, that I should not have permitted the phrase

14 "they saw," but I have noticed with the translations that

15 have come along practically everything is active and not

16 reflexive. Thus there was very little "they were shown," it

17 was more a "they saw" kind of thing. Under the

18 circumstances, since it was going to come out anyway, might

19 as well come out the first time around.

20 All right, we resume on Monday at 10:00.

21 Before we go, though, there are a couple of

22 questions which I think the government should answer, not

23 for me so much but for defense counsel, because these

24 pictures may be a boobytrap. What is the time of this

25 picture, if you know? When was it taken and where was it

2107

1 taken? Is this a picture taken in the apartment?


3 THE COURT: The picture being 361? Is that what

4 it is? What is the number on it?

5 MR. SNELL: 360I, your Honor.

6 THE COURT: 360I?

7 MR. SNELL: Yes.

8 THE COURT: This picture was supposedly taken at

9 what point? During the execution of the search warrant?

10 MR. SNELL: No, your Honor. It was taken before

11 the search warrant was even applied for.

12 THE COURT: And this was taken when the crowd

13 came in before the search warrant?

14 MR. SNELL: Yes, your Honor. In fact, it is my

15 understanding that it was during the period that the witness

16 is now in the process of testifying about.

17 THE COURT: That is what I guessed, but I wanted

18 to make sure.

19 There is apparent in this picture, which is 360J,

20 I am going to bet --

21 MR. SNELL: Right.

22 THE COURT: -- a portable typewriter over which a

23 man in blue is hunched.

24 MR. SNELL: That is Captain Fariscal, I believe,

25 your Honor.

2108

1 THE COURT: Sorry, a woman.

2 MR. SNELL: It is tough to tell from that

3 photograph.

4 THE COURT: You never know these days. OK. My

5 guess, a police person.

6 Was a statement taken at this point of the

7 defendant that hasn't been turned over?

8 MR. SNELL: I don't believe so, Judge, not that

9 we are aware of.

10 THE COURT: The picture may be -- well, my

11 reaction when I looked at it was, uh-huh, they are taking a

12 statement, but you tell me to the best of your knowledge

13 there is no such statement. Am I correct?

14 MR. SNELL: That is right, your Honor.

15 THE COURT: Monday.

16 (Proceedings adjourned until Monday, July 15,

17 1996, at 10:00 a.m.)

18

19

20

21

22

23

24

25

2110




22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY

24

25

2111


2 THE COURT: David, somebody tells me that you had

3 an application.


5 THE COURT: Okay.

6 MR. GREENFIELD: Sorry I was indisposed.

7 THE COURT: That's all right, no problem. At

8 times I'm late and you don't yell at me.

9 MR. GREENFIELD: If the Court please, reading the

10 3500 that was provided with respect to the present witness,

11 Inspector Cruz, I asked the government if they intended to

12 ask for an in-court identification of my client, and, also,

13 whether they are going to offer a purported statement my

14 client made, and the government indicated yes to both

15 questions. There may be a problem as to both. I would

16 request an in-court, out of the presence of the jury hearing

17 with respect to the identification, and I would move to

18 preclude any statement. This is the first notice I've

19 gotten of it, and under Rule 16 would preclude it.

20 THE COURT: What's the statement?

21 MR. SNELL: Your Honor, the statement is to the

22 effect -- I don't have the 3500 material in front of me --

23 but it's to the effect that Mr. Greenfield's client told the

24 witness that he was a refugee from Russia who had emigrated

25 to Norway, and it's 3523-I, your Honor, is the 3500

2112

1 document, handwritten notes. Those are my notes. This is a

2 statement that just came into the possession of the

3 government within the last couple of weeks.

4 THE COURT: 16(a)(1)(A) provides that upon

5 request of the defendant the government must disclose, make

6 available for inspection, copy and photograph any relevant

7 written or recorded statements made by the defendant within

8 the possession, custody or control of the government. You

9 say you got it within the last couple of weeks. Rule 16(c).

10 Continuing duty to disclose. If prior to or during trial a

11 party discovers additional evidence or material previously

12 requested or ordered, they shall promptly notify the other

13 party.

14 Why wasn't he told a couple of weeks ago? You

15 don't tell, you don't play by the rules, you get precluded.

16 It's not coming out. It's that simple. All right.

17 The question of the identification, why do you

18 think an identification would be improper?

19 MR. GREENFIELD: Mr. Snell informed me this

20 morning, upon my request, that there were no photo arrays,

21 but because of the length of time between the purported

22 incident and the identification I think it would be

23 propitious to have a hearing to determine if there was some

24 sort of pictorial identification. If the Court will

25 remember with a prior witness we had a hearing, a Wade

2113

1 hearing, and it turned out that the witness says he did in

2 fact see an individual photo of my client prior to seeing

3 the array. For tactical purposes I didn't at that time move

4 to preclude the testimony, but I think based on the track

5 record here that a hearing would be required, and so request

6 it.

7 THE COURT: The track record is not enough.

8 There was something more the last time. All right. Now,

9 where is Jose L., also known as, Mike Cruz?

10 MR. GREENFIELD: Will the Court allow Mr. Snell

11 to instruct the witness not to refer to the statement?



14

15

16

17

18

19

20

21

22

23

24

25

2114

1 JOSE L. CRUZ, resumed, through the

2 interpreter.

3 (Jury present)

4 THE COURT: Look at it this way, ladies and

5 gentlemen, at least this year there is no possibility of a

6 drought. We'll have water. Did you guys get caught and

7 drowned in the rain storm? Holy mackerel, did I ever catch

8 it, wet through. Judicial robes, I want you to know, do not

9 guarantee bright sun shiny days.

10 All right. You will recall that we're having

11 formerly Lt. Cruz on the stand. He was testifying. He was

12 telling us in effect about being to the Dona Josefa where he

13 was in room 603 on January 7th.

14 DIRECT EXAMINATION (Continued)

15 BY MR. SNELL:

16 Q Mr. Cruz, I believe when we broke on Thursday you

17 had just testified about an attache case that you put some

18 items into in room 603; is that right?

19 A Yes, sir.

20 Q Would you remind us, please, what it was that you

21 put in that attache case?

22 A Yes, sir. What I had put in that attache case

23 was a Casio watch with some wires attached to it, two pieces

24 of a nine volt battery. I had also put in that case an

25 empty pipe. Also, I had put the folder envelope that was

2115

1 given to me by Mr. Ramilo, and lastly, I put in that attache

2 case the suspicious device that we had found around the

3 kitchen area cabinet on the upper portion.

4 Q Let me ask you with respect to the Casio watch

5 where did you first see that before you placed it inside the

6 attache case?

7 A Yes. I found it in that small table inside the

8 bedroom that had a mirror attached to it.

9 Q What about the battery? I believe you just said

10 it was two pieces of battery. Is that what you said?

11 A Yes, sir, 9 volt batteries.

12 Q Two batteries?

13 A Yes, sir.

14 Q Where did you find them?

15 A It was with the watch in the drawer.

16 Q What about the empty pipe?

17 A I found that in the kitchen area, sir.

18 Q Could you describe what part of the kitchen area

19 you found that?

20 A It was on top of that cabinet I believe that was

21 attached to the kitchen sink.

22 Q Now, did you put anything inside the attache case

23 with the empty pipe?

24 A Yes, I completed it by putting an end cap to it

25 and I got that end cap from the bottom portion of the

2116

1 kitchen sink where there were other pipes sitting down over

2 there.

3 Q After you placed these items in the attache case

4 what did you do?

5 A After I had put those things into the attache

6 case, lastly, as we were getting ready to go down, I went to

7 get the suspicious device that was on top of the kitchen

8 cabinet by the kitchen sink, and after I had done that, then

9 we proceeded on to go downstairs, and then from there we

10 were going to render safe the suspicious device.

11 Q Will you tell us, please, what you did in that

12 regard?

13 A Yes, sir. What we had done was by that time when

14 we got downstairs it was still a little bit dark so what we

15 did was to proceed to my office, and when we got to my

16 office I left the attache case there and I stored it in my

17 office and that particular suspicious device was left in the

18 vehicle of Mr. Mandigma for the time being.

19 MR. KULCSAR: Your Honor, I know it's difficult,

20 could we just ask the witness as best he can not to say

21 "we." If it's someone else, could he identify?

22 THE COURT: Sure. Go ahead.

23 Q Mr. Cruz, who else was with you at the time that

24 you left the attache case in the office?

25 A Yes, it was only myself that went to the office.

2117

1 Mr. Mandigma and Mr. Ramilo were left in the garage by the

2 vehicle and later on I returned to where they were.

3 Q Did there come a time when the three of you went

4 somewhere after you left the attache case in the office?

5 A Yes, sir.

6 Q Where did you go?

7 A Yes. It was getting brighter. Then we proceeded

8 on to go to the reclamation area and that is where we tried

9 to undo and defuse the suspicious device.

10 Q Would you tell the jury, please, how you went

11 about doing that?

12 A Yes. The way we did this was to secure an empty

13 spare tire and in the empty entire tire what we did was to

14 put the suspicious device within the parameters or inside

15 this spare tire. Putting it inside the spare tire we then

16 used a disrupter, and the disrupter is being used so that we

17 can take off the end cap of the suspicious device and we

18 were able to do that.

19 Q What happened after you removed the end cap from

20 the suspicious device with the disrupter?

21 A Yes. After we had done that I was able to see

22 that inside the suspicious device was a chemical mixture

23 which was in a plastic, and having done that I also was able

24 to observe that there was no fusing system in this

25 particular device. So at that point what we did was to

2118

1 return this chemical mixture inside this container, and

2 after having done that, we wrapped it very, very well in a

3 piece of plastic because the odor and the smell was quite

4 tremendous.

5 Q You mentioned the fusing system. Would you tell

6 us, please, what that is?

7 A What I mean by that is this particular device did

8 not have an initiator that would cause it to explode. There

9 was no electrical connections or timing with it.

10 Q After you gathered up these materials, the

11 suspicious device and the contents, chemical contents and

12 wrapped them up, what did you do?

13 A We took it with us, and then we returned to our

14 office.

15 Q What did you do after you returned to the office?

16 A We then proceeded on to make an inventory of the

17 contents of the attache case.

18 Q Would you please tell us how you went about doing

19 that?

20 A I did that by listing one by one what the

21 contents of the attache case was.

22 Q Did you have any help in doing that inventory?

23 A Mr. Ramilo was with me and he was present while I

24 was doing this.

25 Q What happened after you finished inventorying the

2119

1 contents of the attache case?

2 A That morning I had received an instruction that I

3 was to take this attache case to the office of the

4 Presidential security group at the Malacanang Palace.

5 Q Did you do that?

6 A Yes, sir.

7 Q About what time did you arrive at the

8 Presidential security group office?

9 A At around 8 or 9 in the morning.

10 Q Who, if anyone, did you see when you got there?

11 A There were some officers there and I don't know

12 their names.

13 Q What did you do upon your arrival at the

14 Presidential security group office?

15 A I opened the attache case, and I took out what

16 the contents of the attache case, and left it there with

17 them. And at that time I left and went back to the office.

18 Q Would you tell us, please, what the contents of

19 the attache case were at this time when you removed them at

20 the office of the Presidential security group?

21 A Yes. When I emptied out that attache case at the

22 PSG what I took out of the attache case was the watch with

23 the wirings, the batteries that I had mentioned earlier, the

24 empty pipe that I also had mentioned earlier, and also I

25 took out the envelope with some contents of papers inside it

2120

1 that I had mentioned earlier, and the suspicious device that

2 I had also mentioned to you earlier.

3 Q Now, at what point had you placed the suspicious

4 device back inside the attache case?

5 A When we returned to our office coming from the

6 reclamation area.

7 Q By "we," who do you mean?

8 A I refer to Mr. Ramilo and Mr. Mandigma, sir.

9 Q What did you do after you removed the items from

10 the attache case at the Presidential security group office?

11 A I left these things with them, sir, and then I

12 left and went back to my office.

13 Q Now, did there come a time when you were

14 requested to retrieve the items at the Presidential security

15 group?

16 A Yes, sir.

17 Q And when was that?

18 A I believe that was after lunch, past 12.

19 Q Where did you go in connection with retrieving

20 the attache case and the items with it?

21 A Yes. I collected that from the offices of Col.

22 Ferrer, but before that was given to me they had videotaped

23 it, and taken some pictures of the contents and the attache

24 case.

25 Q Was the videotaping and photographing done in

2121

1 your presence?

2 A Yes, it was done in front of me, sir.

3 Q You just mentioned Col. Ferrer. Who is he?

4 A He is an officer with the Presidential security

5 group, sir.

6 Q When did you first meet him?

7 A In this particular instance, sir.

8 Q After the videotaping and the photographing of

9 the items was finished what did you do?

10 A Yes, sir. I returned to my office after that,

11 and at that point I just was on standby as we were trying to

12 apply for the search warrant.

13 Q What did you do with the attache case and the

14 items with the attache case?

15 A I kept it in my offices, sir.

16 Q Now, you just mentioned a search warrant. Were

17 you asked to do anything in connection with the application

18 for a search warrant?

19 A Yes, sir.

20 Q What were you asked to do?


22 THE COURT: No. Answer it.

23 A I signed a document as a deponent or a witness.

24 MR. KULCSAR: Your Honor, I'm sorry, could I have

25 the last answer read back by the reporter?

2122

1 THE COURT: "I signed the document as a deponent

2 or a witness."

3 MR. KULCSAR: Thanks, your Honor.

4 Q Prior to your signing that document had you

5 filled out any other paperwork in connection with this case?

6 MR. KULCSAR: Objection, leading.

7 THE COURT: I know he is, but that's all right.

8 Go ahead and answer.

9 A Yes, I made a report.

10 Q When did you do that?

11 A Yes. I prepared that around noon time, just

12 before I went to the Malacanang Palace.

13 Q Now, would you tell us what you put in that

14 report?

15 A Yes, sir. What I had done was I had received an

16 instruction to prepare a report, and so I had prepared a

17 report. And in this report I reflected that this attache

18 case was turned over to me, although the truth of the matter

19 was I had been the person that collected this attache case.

20 Q Who gave you the instructions with respect to

21 preparing the report?

22 A My chief, Major Angeles.

23 Q And where did you receive that instruction?

24 A In our offices, sir.

25 Q And when was it that you got this instruction?

2123

1 A That morning, sir, before noon time.

2 Q Now, after you completed your report what

3 happened?

4 A I submitted a report to him, sir. At around 3

5 o'clock in the afternoon we proceeded to go to the

6 courthouse.

7 Q By, "we," who are you referring to?

8 A Yes. It was with a policeman and also with Major

9 Angeles who was the applicant for the warrant, and there

10 were also some other policemen from some other offices.

11 Q Would you tell us, please, what you mean by the

12 applicant for the warrant? Under Philippine procedure what

13 does that mean?

14 A That he is the person applying for the warrant,

15 and that we are his witnesses.

16 Q When you say "we are his witnesses," was there

17 somebody else who was also going to be a witness with you?

18 A Yes, it was the policeman from Station 9 who had

19 gone ahead of me and myself.

20 Q And who was the policeman from Station 9?

21 A Lt. Tizon.

22 Q What did you do once you went to the court, once

23 you got there?

24 A Yes. When it was my turn to face the judge I

25 signed a particular document. It's as a deponent or a

2124

1 witness. And also at that time the judge had asked me what

2 I had seen inside the apartment, and the things that we

3 needed to collect.

4 Q Now, the document that you signed, what did that

5 say about the attache case?

6 A I don't believe that it was contained there.

7 MR. SNELL: Your Honor, may I have one moment?

8 THE COURT: Sure.

9 (Pause)

10 MR. SNELL: Your Honor, may the witness be shown

11 what has been marked 3523-H for identification.

12 (Witness handed document)

13 Q Mr. Cruz, please take a look at that, read it to

14 yourself, and then tell us whether that's the document that

15 you were just referring to in your testimony?

16 A Yes, sir.

17 Q Now, having read it to yourself, does that

18 refresh your recollection as to whether there is any mention

19 of the attache case in the document?




23 A Yes, in this particular document there is no

24 reference --


2125


2 MR. SNELL: I offer it, your Honor.

3 THE COURT: You offer the document?

4 MR. SNELL: Yes.

5 THE COURT: Any objection?

6 MR. GREENFIELD: The witness' answer is not

7 responsive. He was asked a question --

8 THE COURT: No, he offered the document. I want

9 to know whether there is any objection to the document?

10 MR. KULCSAR: We don't know what the actual

11 document is.

12 MR. SNELL: 3523-I.

13 MR. GARCIA: H.

14 THE COURT: That's the one I'm looking at.

15 DEFENDANT YOUSEF: I have an objection, your

16 Honor.

17 MR. UDELL: I have an objection, also, your

18 Honor.

19 THE COURT: We'll take it at the break and go

20 from there. All right.

21 Q Mr. Cruz --

22 I'm sorry. Your Honor, may I proceed?

23 THE COURT: Sure.

24 Q Mr. Cruz, in addition to signing the document and

25 testifying before the judge about what you saw inside room

2126

1 603, did you tell the judge anything about the attache case?

2 MR. KULCSAR: Objection, leading, your Honor.

3 DEFENDANT YOUSEF: Objection.

4 THE COURT: No. Go ahead.

5 A Yes, sir.

6 Q What did you tell the judge?

7 A Yes. I had told him that this was turned over to

8 me, the attache case, by someone from, officer from someone

9 from station number 9, and I showed him the contents of the

10 attache case.

11 Q Now, was the part about having the attache case

12 turned over to you by someone from Station 9 true?

13 A No, sir.

14 Q You just described, you said you showed the judge

15 the contents of the attache case; is that right?

16 A Yes, sir.

17 Q What were those contents that you showed the

18 judge?

19 A Yes. I showed him the batteries. I showed him

20 the watch. I showed him the empty pipe. I showed him the

21 suspicious device, and I showed him the folder that

22 contained papers.

23 Q What did you do after you finished your testimony

24 in front of the judge?

25 A Sir, I returned to my office and I secured the

2127

1 attache case in my office.

2 Q How about the contents of the attache case?

3 Where were they when you returned to your office?

4 A They were inside the attache case, sir.

5 Q What did you do next that day?

6 A Yes, sir. We waited around our offices until we

7 got the instructions as to what time we were going to serve

8 the warrant.

9 Q And again, when you say "we," who are you

10 referring to?

11 A Sir, when I say, "we," I refer to the applicant

12 for the search warrant who is my chief, the members of the

13 EOD who were going to be present when the warrant was being

14 served.

15 Q And who were the members of the EOD that were

16 going to attend the search warrant serving process?

17 A The persons that were present at that time was

18 Mr. Ramilo, Mr. Mandigma, Mr. Voltaire Gomez, and

19 Mr. Capacete.

20 Q Now, did there come a time when you and the other

21 EOD personnel went to the Josefa building?

22 A Yes, sir.

23 Q Would you tell us, please, what happened when you

24 got there?

25 A Yes. When we arrived there we went into the

2128

1 front desk. We went to the personnel of the building, and

2 we said to them that there was an order for room 603 to be

3 searched, and so we presented to them the documents

4 regarding the warrant for the search. After that they

5 accompanied us and they opened the room. After they opened

6 the room, I was the first one to enter the room 603.

7 Q Now, aside from the EOD personnel that you've

8 just identified, was anyone else present when you were

9 searching room 603 pursuant to a search warrant?

10 A Yes, sir, there were other persons present there.

11 There was Gen. Ebdane, there was Col. Ferrer and his

12 personnel from Malacanang. There were also persons from the

13 headquarters of Camp Crame who I didn't know or recognize.

14 Q Did you know which command at Camp Crame they

15 were from?

16 A From what I knew they were from the intelligence

17 command.

18 Q After you entered the apartment what did you and

19 your men do?

20 A Yes. The way they did the search was we

21 collected some of the evidence that were present there, and

22 the way we did this was Mr. Voltaire Gomez was assigned to

23 write down or take down the inventory, and he is being

24 assisted by Mr. Ramilo and Mr. Mandigma. There was also a

25 fingerprint expert, a latent print expert that was provided

2129

1 there at that time. There was also a photographer that was

2 brought over by Major Angeles who was taking the pictures,

3 and Mr. Capacete was taking the video as this process was

4 being done.

5 Q What were you yourself doing while this was going

6 on?

7 A I was assisting and supervising with Mr. Ramilo

8 and his company.

9 Q Now, did there come a time when the search of the

10 apartment was completed?

11 A Yes, sir.

12 Q And what happened at that point?

13 A Yes. After we had done and collected everything

14 that we needed to collect from this room we were then

15 ordered to turn this over to the members of the intelligence

16 command with the exception of a black bag that I had in

17 possession of me, and with that black bag is a watch, and a

18 magazine, and I had kept this for the purpose of studying

19 the fusing system.

20 Q Now, where did you find the watch that was inside

21 the black bag?

22 A Yes, sir. I found this watch in a small drawer

23 by the small table that was located inside the bedroom, and

24 that particular table was located by the bedroom window, and

25 I might add that I also found a Casio timer in. And that

2130

1 particular Casio timer I had found that on top of the table

2 inside the bedroom that had the mirror attached to it.

3 Q What did you do with the Casio timer on the table

4 with the mirror?

5 A I also put this inside the bag.

6 Q What was the make of the watch that you found

7 inside the small drawer?

8 A Yes. This was a Casio DBC-61 with one battery

9 attached to it.

10 Q Was there any -- withdrawn. What was the make of

11 the watch that previously had been placed inside the attache

12 case when you were there early that morning?

13 A Yes. The one that was put inside the attache

14 case the difference of it was it is a DBC-62 and it had two

15 battery snaps attached to it.

16 Q Where relative to the DBC-61 had you found the

17 DBC-62?

18 A Yes, sir. The DBC-62 I found at the table that

19 was on the foot of the table that had the mirror attached to

20 it, and the DBC-61 I found that in the drawer of that table

21 that was also inside the bedroom, but it was beside the

22 bedroom window.

23 Q What did you do after you finished the search and

24 left the apartment?

25 A I prepared a report.

2131

1 Q What was the subject matter of that report?

2 A Yes. The contents of this report was in regards

3 to the matter, or how we had served the warrant that day,

4 and how all the things that we were able to get from this

5 particular apartment location was turned over to the

6 intelligence command. I also reflected in this report that

7 I had in my possession the black bag.

8 Q By the black bag, did you also discuss in the

9 report what the black bag contained?

10 A Yes, included in the description of that black

11 bag were the contents of the black bag.

12 Q Now, what did you do with the black bag and its

13 contents after you returned to your office?

14 A I kept it secured, sir.

15 Q Aside from the items that you placed inside the

16 black bag was there anything else inside there?

17 A Yes, sir. Upon close scrutiny and inspection of

18 the bag I found that there were some pocket tools inside.

19 Q What do you mean by pocket tools?

20 A When I say pocket tools I meant little

21 screwdriver devices and tweezers or something that you would

22 use for a watch.


24 MR. UDELL: Objection.

25 THE COURT: No.

2132

1 Q Mr. Cruz, I'd like to direct your attention now

2 to January 11, 1995. Were you working on that day?

3 A Yes, sir.

4 Q Did there come a time when you were asked to go

5 someplace?

6 A Yes, sir.

7 Q Where were you asked to go?


9 THE COURT: We're going to get to it anyway. Go

10 ahead, answer.

11 A Yes. I was instructed, together with some

12 personnel from my office, to assist some personnel of the

13 intelligence command and I was to report to Singalong,

14 Manilla.

15 Q Where is Singalong, Manilla?

16 A It is in the southern part of Manilla in the

17 Malate area.

18 Q Is Singalong a street?

19 A Yes, sir.

20 Q Were you asked to go to any place in particular

21 on Singalong Street?

22 A The address that was given to me that I should

23 report to is two zero one zero, 2010.

24 Q Did you go there?

25 A Yes, sir.

2133

1 Q By the way, could you tell the jury where that

2 location is relative to the Josefa building?

3 A It would be less than one kilometer.

4 Q Now, what did you do when you arrived at 2010

5 Singalong Street?

6 A I introduced myself and I identified myself to

7 the officer that was stationed in the post by the door, and

8 at that point he allowed me to enter.

9 Q Where did you go after you entered the building?

10 A Yes. This particular door was further inside

11 that building, and so when I arrived there I met some

12 personnel of the intelligence command and a foreigner was

13 present as well.

14 Q Now, at the time you entered the building and saw

15 the personnel from the intelligence command did you know who

16 those people were?

17 A No, sir, I did not know them at that point, so

18 what I did was I introduced myself and they in turn they

19 introduced themself. This particular person that was

20 introduced, that introduced himself to me was. Major

21 Monteagudo.

22 Q Now, you also mentioned that there was a

23 foreigner present; is that right, sir?

24 A Yes, sir, they were speaking to him.

25 Q Did you notice anything about the foreigner?

2134

1 A He was large and heavy.

2 Q Did you notice anything in particular about any

3 of his features?

4 A I believe that there were some digits missing

5 from his fingers, from his hands, I believe two fingers.

6 Q Mr. Cruz, I'd like you to take a look around the

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

8 just referred to as a foreigner inside the address on

9 Singalong Street?

10 A May I step down and may I ask permission of the

11 Court if he would please show me his hand when I go near

12 him?

13 THE COURT: Please show us what?

14 THE INTERPRETER: His hands.

15 THE COURT: Well, you see if you can pick

16 somebody out. We'll talk about seeing his hands afterwards.

17 MR. SNELL: Your Honor, may the witness step

18 down?

19 THE COURT: Sure.

20 (Witness left the stand; witness resumed stand)

21 THE WITNESS: It is the gentleman that is in the

22 very end of the table that is wearing some earphones.

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

24 identification?

25 THE COURT: Yes. Wait until you read the record.

2135

1 MR. SNELL: I'm sorry, your Honor?

2 THE COURT: Wait until you read that record you

3 have just made.

4 MR. SNELL: That's why I'm going to ask for

5 clarification on the identification, your Honor. Indicating

6 the defendant Wali Khan Amin Shah?

7 THE COURT: Yes.

8 Q Mr. Cruz, what was happening in the meeting that

9 you just described involving Defendant Shah and the other

10 officers?

11 A Could you repeat that?

12 Q What was going on inside that -- withdrawn.

13 Where was everybody when you first saw the group

14 of people?

15 A They were in the downstairs part of the

16 apartment.

17 Q They were inside an apartment?

18 A Yes, sir.

19 Q And what were they doing when you entered?

20 A They were seated and they were talking.

21 Q Now, what did you do after you went inside the

22 apartment?

23 A Major Monteagudo told me that I should just wait

24 around until Gen. Canson had arrived before we continued on,

25 and did an inspection.

2136

1 Q What do you mean by an inspection?

2 A Yes. I was asked to report there to see if there

3 were any materials or anything --


5 THE COURT: Yes. What you were asked to do

6 doesn't count.

7 Q Did there come a time, sir, when Gen. Canson

8 arrived at the apartment?

9 A Yes, sir.

10 Q After the General arrived what did you do, if

11 anything?

12 A Yes. When he arrived I proceeded on to do the

13 inspection to look around and see if there were any

14 materials --


16 THE COURT: No. All right.

17 MR. GREENFIELD: What did he do?

18 THE COURT: That's what he's saying. Go ahead.

19 A To see if there are materials that may be related

20 to the making of a bomb. We, I then proceeded upstairs with

21 the General to look into the two rooms that were upstairs

22 and it appeared to be empty.

23 Q Did you collect anything from the apartment at

24 2010 Singalong Street?

25 A Myself, no.

2137

1 MR. SNELL: Your Honor, would this be an

2 appropriate time for the morning break?

3 THE COURT: Sure. Do you expect to be with this

4 witness a while longer?

5 MR. SNELL: Yes, a while longer.

6 THE COURT: All right. Ladies and gentlemen,

7 we'll take our break.

8 (Recess)


10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2138

1 (Jury present)

2 BY MR. SNELL:

3 Q Mr. Cruz, did there come a time when you showed

4 the items that you had collected from apartment 603 to

5 someone?

6 A Yes, sir.

7 Q Who did you show them to?

8 A To Calvin Walbert of the FAA.

9 Q Is that Walbert?

10 A Walbert.

11 Q Do you know how that is spelled?

12 A It is W-A-L-B-E-R-T.

13 Q About when was it that you showed items to

14 Mr. Walbert?

15 A Approximately two weeks after we had collected

16 the items.

17 Q Where did you do this?

18 A Inside my offices.

19 Q Where is that located?

20 A At the headquarters of the Western District

21 police command at United Nations Avenue.

22 Q What if anything did Mr. Walbert do when you

23 showed him these items?

24 A He examined it, he looked it over, and then he

25 took some photographs.

2139

1 Q By "it," what do you mean?

2 A The attache case and the contents of the attache

3 case that I showed to him.


5 be shown Government's Exhibit 302 and Government's Exhibits

6 351A and B, all of which I think are in evidence.

7 Q First, Mr. Cruz, would you please take a look at

8 302, just 302. Do you recognize that? That is the case.

9 A Yes, sir.

10 Q How do you recognize that?

11 A This has my tag on it.

12 Q What is it? I mean the item, the case.

13 A This is an attache case with a tag.

14 Q When did you first see that attache case?

15 A Yes, I saw this for the first time in the morning

16 of January 7, at room 603.

17 Q Directing your attention to the two photographs,

18 351A and B, do you recognize what is shown in those photos?

19 A Could you repeat that?

20 Q Do you recognize what is shown in the two photos,

21 Government's Exhibits 351A and 351B?

22 A Yes. Photograph A contains the suspicious device

23 that I had opened, and also the empty pipe that I had

24 collected. And then the folder that contains the papers.

25 Q What about 351B?

2140

1 A B is the suspicious device that I had opened, and

2 shown here are the contents that were collected inside the

3 suspicious device, and I had shown this to him.

4 Q Is that to Mr. Walbert?

5 A Yes, sir.

6 Q Just so that everybody understands when they look

7 at it, in Government's Exhibit 351A, could you hold up the

8 photo and point out what you mean by the suspicious device.

9 A This is the suspicious device that we brought

10 over to the reclamation area, and we opened.

11 Q Is that the item that appears to be wrapped in

12 some sort of white material?

13 A Yes. This thing that is wrapped in white

14 plastic.

15 Q You can put that down now.

16 Did there come a time after you showed these

17 items to Mr. Walbert that you showed them to someone else?

18 A Yes, sir.

19 Q When was that?

20 A Yes. After I had shown this to Mr. Calvin

21 Walbert, he had given us the invitation to visit the United

22 States Embassy in Manila, for us to show him what we have

23 here.

24 Q Who do you mean by "us"?

25 A Myself and personnel from the EOD.

2141

1 Q Did you go to the U.S. Embassy after your first

2 meeting there with Mr. Walbert?

3 A Yes, sir.

4 Q Where did you go in the embassy? Where within

5 the embassy did you go?

6 A We went into the conference room of the regional

7 security office of the United States Embassy.

8 Q Who was there when you went into the conference

9 room?

10 A Yes. We were met by Mrs. Wassen, and present

11 there there was an FBI chemist. There was an FBI

12 fingerprint expert. There was also present there an FBI

13 bomb technician, and also present was the FBI Agent Frank.

14 Q Is that Frank Pellegrino?

15 A Yes.

16 Q Who is Mrs. Wassen?

17 A She is a member of the regional security office

18 of the United States Embassy.

19 Q What did you do after you went inside the

20 conference room?

21 A Yes. They looked over the pieces of evidence

22 that we had opened, they looked it over one by one. The

23 chemist in particular took a sample and a swabbing of the

24 contents of the suspicious device. And also, they also took

25 photos of everything that we had brought there.

2142

1 Q Would you tell us now, what were the items that

2 you brought to the embassy?

3 A This attache case and the contents that went with

4 this attache case, the black bag and the contents of the

5 black bag, and also with that I brought pieces of evidence,

6 some fragments that have been collected from explosions that

7 have occurred not related to this.

8 MR. SNELL: Your Honor, could the witness be

9 shown what have been marked in evidence as Government's

10 Exhibits 302A, 351C, and 351D.

11 Q Mr. Cruz, would you please take a look at those

12 three exhibits, 302A, 351C and 351D, and tell us if you

13 recognize them.

14 A Yes, sir.

15 Q What is 351C?

16 A This is a photograph of the Casio watch DBC 61.

17 Q How about 351D?

18 A This is the same watch. The photo is taken in

19 its reverse side.

20 Q Do 351C and D fairly and accurately show the way

21 the watch looked when you showed it to the FBI personnel at

22 the U.S. Embassy?

23 A Yes, sir.

24 Q Now please look at 302A. Do you recognize that?

25 A Yes, sir.

2143


2 A Yes, sir. This is the same watch that is shown

3 here in the photographs, but at this point this watch is

4 dismantled.

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

6 witness, please, 302B, which is just marked for

7 identification at this time, and also 302C, 302D, 302D1,

8 302D2, and 302E, which are also just marked for

9 identification. Just to be clear, I think 302C is in

10 evidence and the others are just marked for identification.

11 Q First, Mr. Cruz, would you take a look at 302C

12 and tell us what that is.

13 A This looks like the pipe that I had put inside

14 the attache case, that didn't contain anything.

15 Q If you would turn your attention to the other

16 exhibits that have just been placed up there, which are

17 302B, the 302D series, and 302E. First 302B, do you

18 recognize that?

19 A These are the batteries that were with the watch.

20 Q 302D, would you take a look at that and the

21 subparts that go with that exhibit.

22 A This is the masking tape that was tied around the

23 suspicious device that we had taken over and the chemist had

24 taken out to take a sampling of.

25 Q And 302E for identification, do you recognize

2144

1 that?

2 A Yes. Two of the coins contained here, I first

3 saw this when I got that bag, and then -- the attache case,

4 and then the other two was found at the U.S. Embassy when

5 they looked it over.

6 Q Where were the other two coins found?

7 A Inside the bag.

8 Q Is that the attache case?

9 A Inside the attache case.

10 Q Could you tell us whether Exhibits 302B, 302D,

11 D1, D2, and 302E appear to be in the same condition as they

12 were when you saw them at the embassy that day?

13 A This particular watch is in parts.

14 Q Just so the record is clear, that is 302A, is

15 that right?

16 A Yes, sir, this particular one.

17 Q What about the other exhibits? Would you tell us

18 whether those look like they are in the same condition, or

19 do they appear different?

20 A In this particular one, it was clean and not

21 discolored at that time.

22 Q Is that 302D and D1 and D2?

23 A 302D.

24 Q What about 302B?

25 A It's in the same condition.

2145

1 Q How about 302E?

2 A Yes, it was in the same condition. It's a little

3 bit dirty here.

4 MR. SNELL: Your Honor, may the exhibits be shown

5 to counsel prior to their offer?

6 MR. GREENFIELD: Have D1 and 2 been described?

7 MR. SNELL: Actually, I think D1 and 2 have only

8 been described at this time. If they are to be taken out of

9 the bag, I would ask that the witness be provided with a

10 pair of gloves.

11 DEFENDANT YOUSEF: Your Honor, I have an

12 objection as to E.

13 THE COURT: We will take it up later.

14 (Government's Exhibits 302B, 302D, D1 and D2

15 received in evidence)

16 Q Mr. Cruz, in addition to the items with the

17 attache case, did you also have with you the black bag and

18 its contents when you went to the embassy?

19 A Yes, sir.


21 be shown Government's Exhibit 334 for identification and

22 334A, 354A, 354B, which are marked for identification, and

23 334B, 334C, 334D, all of which also are just marked for

24 identification.

25 Q First, Mr. Cruz, would you please take a look at

2146

1 the black bag, which is Exhibit 334. Do you recognize that?

2 A Yes. This is the black Concord bag.

3 Q Concord bag?

4 A Yes. It has a tag that says Concord.

5 Q When did you first see that bag?

6 A That evening of January 7, at room 603 of the


8 Q Would you turn your attention, please, to 334A,

9 354A, and 354B.

10 A These two photos --

11 Q Yes, first the photos, 354A and B, do you

12 recognize those?

13 A Yes. This is the photo of the watch that I had

14 collected by the side table inside the room, bedroom of room

15 603, that is by the window, and it also has the wirings.

16 Q What about the other photograph that you have in

17 your hand?

18 A This is the same watch in the reverse. The photo

19 is in the reverse.

20 Q Do you know when those photos were taken?

21 A When we took this evidence to the U.S. Embassy

22 office and they processed it.

23 Q Who do you mean by "they," the people that

24 processed the evidence?

25 A The group of the FBI that were there.

2147

1 Q Would you take a look at 334A for identification.

2 Do you recognize that?

3 A Yes, sir.


5 A This is the DBC61 Casio watch that is in the

6 photograph.

7 Q Is the watch in the same condition in the Exhibit

8 334A as it is in the photographs 354A and B?

9 A No, sir, these are in its parts. I believe they

10 opened this.

11 Q Now if you would please take a look at 334B, C

12 and D. Do you recognize those exhibits?

13 A Yes, sir.

14 THE COURT: What is that one? Is that B?

15 THE WITNESS: B.

16 Q Tell us what B is.

17 A Yes, this is the timer that was given to me by

18 Mr. Mandigma that was on top of that small table. And also

19 it contains a wire with a small bulb that I had collected on

20 top of that table with all the other wires.

21 Q Just so we are clear, where was it that you

22 collected those items?

23 A I collected this inside the bedroom of room 603

24 on that table that had a mirror.

25 Q How about 334C for identification? Do you

2148

1 recognize that?

2 A Yes, sir.

3 Q What do you recognize that to be?

4 A This is a magazine that I collected inside the

5 bedroom of room 603, and I had put inside the bag.

6 Q Does that magazine, 334C, appear to be in the

7 same condition as it was when you took it to the embassy?

8 A This is in the same condition, with the

9 exceptions that there are certain signatures and initials

10 here as well as a tagging.

11 Q Finally, please take a look at 334D for

12 identification. Do you recognize that exhibit?

13 A The screwdriver, the file and the tweezer, I

14 found this inside the black bag when I was in my office.

15 This particular box of match and this Pentel pen, I had this

16 inside the attache case, but I don't know for some reason

17 how it got mixed up.

18 Q What do you mean by "got mixed up"?

19 A Because when we took this to have them process

20 it, I don't know if this was put back in the attache case or

21 it was put into the black bag.


23

24

25

2149

1 MR. SNELL: Your Honor, at this time the

2 government offers 334, 334A, 354A, 354B, 334B, 334C, and

3 334D, and we would like to show them to counsel.

4 (Pause)

5 THE COURT: Mr. Snell, are you almost finished

6 with this witness?

7 MR. SNELL: Very close, your Honor. I don't

8 think I am going to make it before lunch, though, Judge.

9 THE COURT: You don't think you will make it

10 before lunch?

11 MR. SNELL: Unless we work a little bit late.

12 (Pause)

13 THE COURT: Paul, what do you have in your hands?

14 THE CLERK: 334B, 334A, 354A and B.

15 THE COURT: Any objection to these?

16 DEFENDANT YOUSEF: Yes.

17 THE COURT: Which ones?

18 MR. KULCSAR: 234B, and for the present, 334A,

19 your Honor.

20 THE COURT: You don't object to the other two?

21 MR. KULCSAR: No. It would help if we had a date

22 on it.

23 THE COURT: Go ahead, mark them.

24 (Government's Exhibits 354A and 354B received in

25 evidence)

2150

1 (Pause)

2 (Government's Exhibits 334, 334D, and 334C

3 received in evidence)

4 MR. SNELL: Your Honor, would this be a good

5 opportunity to pass the exhibits that have been received to

6 the jury, or should we resolve the issues as to the others

7 first?

8 THE COURT: No, you can pass these first. Go

9 ahead.

10 MR. SNELL: In addition, your Honor, if my memory

11 serves me, I don't believe that the 302 and 351 series were

12 previously passed to the jury, and I would like to do that

13 as well now.


15 (Pause)

16 THE COURT: OK, kids, take your gloves off --

17 sounds like take your gloves off and come out fighting --

18 no. It's lunchtime. I checked, and your lunch is there.

19 (Jury excused)

20 THE COURT: OK, we have four items to discuss.

21 The first one was that affidavit before the judge in the

22 Philippines, which was offered sometime ago before the

23 break. It is 3523H. There was objection. Why?

24 MR. KULCSAR: H, your Honor?

25 THE COURT: Yes, 3523H, an affidavit, apparently

2151

1 in some court in the Philippines.

2 MR. GREENFIELD: One ground, I recall, your

3 Honor, when the witness was asked if he recollected making

4 an affidavit and mentioning the attache case and the

5 affidavit, he said he didn't recollect it, at which point he

6 was shown the affidavit and asked if it refreshed his

7 recollection, and we objected and at that point the

8 government offered it. How does it come in for failure to

9 refresh recollection?

10 THE COURT: How does it come in when you want to

11 use it on the defense case, cross-examination? You object

12 to it one way, you get it both ways. 334B.

13 What you have done is foreclosed a whole chunk of

14 cross-examination. That is perfectly OK by me, but you

15 can't have it both ways.

16 MR. GREENFIELD: That wasn't my objection, your

17 Honor.

18 THE COURT: I didn't say it was.

19 MR. KULCSAR: Your Honor, are we addressing this

20 3523H objection? The basis of the objection was that the

21 objection was offered obviously as evidence of the contents

22 of it, and it contains a number of hearsay matters.

23 THE COURT: I assume that you will not use it on

24 cross-examination. Maybe I am wrong. Do you want to use it

25 on cross-examination? Maybe they will object, the objection

2152

1 being this is what I offered on direct examination, the

2 defense objected to it at that point, I don't see why they

3 should get it in now, and I can hear it coming.

4 MR. KULCSAR: Your Honor, Mr. Yousef wishes to

5 withdraw the objection.

6 Mr. Udell, you objected also to that.

7 MR. UDELL: Your Honor, I do not want to play it

8 both ways and I would like to use it on cross-examination,

9 but my objection is a little more basic. We can't read it.

10 THE COURT: I can read my copy.

11 MR. UDELL: If it is being offered as a copy of

12 an original document, we should be able to read it.

13 THE COURT: I can read it. I don't know about

14 you.

15 MR. UDELL: Perhaps I do have some problem. At

16 about the last line where we are going into the second line

17 and the last answer --

18 THE COURT: If it is a question that you can't

19 read a portion of, don't you think that the jury can't read

20 it also?

21 MR. UDELL: That may very well be, but the

22 witness was asked a question in which he was referring to

23 something that is illegible.

24 THE COURT: And it will show that he did not

25 refer to the bag in the affidavit, which is apparently what

2153

1 it was offered for -- I don't care. You want to keep it

2 out, it is out. Make up your mind.

3 MR. UDELL: Perhaps counsel can give us a

4 clarification of a couple of lines on this document before

5 the witness continues with it. That's all.

6 THE COURT: I am sorry, but I don't understand.

7 What do you want?

8 MR. UDELL: I would like to know, if I am missing

9 something -- on the bottom of this document, the last A, it

10 starts with the words "our offices." I can read half the

11 line but I can't read part of the line on the right side of

12 the page.

13 THE COURT: If the one that they are offering is

14 illegible, then it is illegible.

15 MR. KULCSAR: Your Honor, if I may help, I think

16 the problem is that the original copy is not legible. I

17 have obtained a better copy from Miss Grant which is

18 legible.

19 THE COURT: Whichever one is offered is the one

20 that is offered.

21 302E, a set of four coins, one Philippine, three

22 from the United Arab Emirates. There was an objection

23 taken.

24 MR. KULCSAR: The basis of the objection, your

25 Honor, I want to preserve the issue, to the extent my client

2154

1 wished to do so. The witness testified that he initially

2 found the coin and put a coin in there when he opened the

3 bag and there were additional coins in there that he

4 couldn't account for. Whether that is of significance or

5 not, I didn't have an opportunity to discuss with Mr.

6 Yousef. That was the basis for the objection.

7 THE COURT: All right. Now we are down to 334B

8 for identification. One Casio timer, a battery, and

9 apparently some kind of, I don't know, Christmas light? I

10 guess that is the best way to describe it. Go ahead. What

11 is the objection to this?

12 MR. KULCSAR: There are items in that bag that

13 the witness did not testify to recovering from room 603.

14 THE COURT: No, these three he said he found in

15 room 603.

16 MR. KULCSAR: I think the question was actually

17 posed to him with respect to whether those items were the

18 same as when he went to the embassy, the one item in there

19 in particular -- if we are looking at the same thing, your

20 Honor. Is that the one with the AA and AAA battery in

21 there?

22 THE COURT: There is a battery?

23 MR. KULCSAR: An AA or AAA, and a wire with a

24 light bulb.

25 THE COURT: A wire with a tiny little light bulb

2155

1 and a Casio timer.

2 MR. KULCSAR: Is there also a small battery, not

3 a 9-volt but an AA or an AAA? It may be in another one,

4 your Honor.

5 THE COURT: There is a penlight battery.

6 MR. KULCSAR: That is in there?

7 THE COURT: Yes.

8 The broken apart watch, 334A for identification,

9 he testified he saw it when it was all together. You object

10 to it, I assume because it is now apart and you want to

11 cross-examine the guy who took it apart, is that correct?

12 MR. KULCSAR: I think, if I am not incorrect,

13 your Honor, I think there are actually two watch components

14 in there. May I approach the court?

15 THE COURT: Sure.

16 MR. KULCSAR: No objection on this one, your

17 Honor.

18 Your Honor, I just wanted to have an opportunity

19 to confer with Mr. Yousef on the other. The objection was

20 just made to preserve it.

21 THE COURT: All right, 2:00.

22 (Government's Exhibit 334A and received in

23 evidence)


25

2156


2 2:00 p.m.


4 JOSE L. CRUZ, resumed, through the interpreter.

5 MR. SNELL: Your Honor, before the jury comes in,

6 just so we're clear, on 334B and E I don't know if we got

7 the ruling of the Court.

8 THE COURT: That one is in. What is E?

9 MR. SNELL: E is the coins.

10 THE COURT: The coins are not in. It's a

11 question of relevance of the coins. The only thing it could

12 show is that somebody, who it might have been, was in the

13 United Arab Emirates, and I believe the tiny one was a

14 Filipino coin.

15 MR. SNELL: That's right, your Honor.


17

18

19

20

21

22

23

24

25

2157

1 (Jury present)

2 THE COURT: You want to pass those last two?

3 MR. SNELL: Please, your Honor.

4 (Government Exhibits 334B and 334A received in

5 evidence)

6 (Government Exhibits 334A and B passed to the

7 jury)

8 (Pause)

9 MR. KULCSAR: Your Honor, may I just approach

10 Mr. Snell to clarify matters?

11 THE COURT: Sure:

12 MR. SNELL: May I proceed, your Honor?

13 THE COURT: Yes.

14 DIRECT EXAMINATION (continued)

15 BY MR. SNELL:

16 Q Mr. Cruz, what did you do with the items that you

17 showed to the FBI personnel at the embassy after they were

18 finished looking at them?

19 A After they had looked at it I kept it for

20 safekeeping.

21 Q And where you did you keep them?

22 A In my offices.

23 Q Now, did there come a time when you turned over

24 these items that you've been testifying about and that the

25 jury has just seen again to the FBI?

2158

1 A Yes, sir.

2 Q When was that?

3 A On April 4, 1995 I turned over all the evidence.

4 Q Where did you turn over the evidence?

5 A Yes, sir. I turned it over at the United States

6 Embassy in Manilla to FBI Agents Larry Egan and Frank

7 Pellegrino.

8 Q And just so we're all clear what you're referring

9 to, would you tell us what you mean by the evidence that you

10 turned over?

11 A I am referring to the attache case that I had

12 collected together with its entire contents. I am also

13 referring to the black bag that I had collected and the

14 entire contents, including the watch and the magazine.

15 Q Prior to April 4, 1995, were you interviewed by

16 the FBI?

17 A Yes, sir.

18 Q And do you recall how many times you were

19 interviewed?

20 A About two or three times.

21 Q Where did those interviews take place?

22 A The first time was at Camp Crame and the second

23 and the third time at the United States Embassy in Manilla.

24 Q What happened during your interviews with the

25 FBI?

2159

1 A Yes. I told them the version with regards to the

2 attache case, the one that's written in my report that the

3 attache case was given to me.

4 Q And was that version true?

5 A No, sir.

6 Q Did there come a time when you gave the FBI a

7 different version with respect to the attache case?


9 THE COURT: I'll permit it. Go ahead.

10 A Yes, sir, when I arrived here in New York City.

11 Q During the past year before your arrival in New

12 York City were you asked whether you'd be willing to come to

13 New York to testify?

14 A Yes, sir, I was invited.

15 Q And did anyone instruct you or order you to go?

16 A No, sir, no one ordered or asked me. It is my

17 own personal decision.

18 Q Now, Mr. Cruz, has the United States government

19 paid the air fare that you used to come here to testify?


21 Q And is the United States government paying for

22 your hotel accommodations, providing you with witness fee,

23 and also a meal allowance?


25 Q And is your lost income as a result of your

2160

1 attendance at the trial being compensated for by the United

2 States government?

3 A This is what they told me, sir.

4 Q Also, Mr. Cruz, has the United States government

5 agreed to permit your, certain members of your family to

6 come to the United States during your attendance at the

7 trial?

8 A Yes, sir, that is correct.

9 MR. SNELL: I have nothing further, your Honor.




13 Q Good afternoon, sir. Sir, when did you first

14 learn about the alleged incident in the Josefa building?

15 A In the early morning on January the 7th, sir.

16 Q Approximately what time was that, sir?

17 A Approximately around 2 o'clock in the morning.

18 Q Was that through a telephone call?


20 Q Who was the person who called you?

21 A It was the desk officer from our offices.

22 Q What did you do after you received the call?

23 A I was given the telephone number of the Josefa

24 Apartments and then at that point I called Mr. Ramilo who

25 was at the Josefa.

2161

1 Q And what did you say to Mr. Ramilo, if anything,

2 sir?

3 A I asked him as to what is happening there.

4 Q Did you instruct him to do anything?

5 A I didn't give him any instruction except to tell

6 him that I was on my way.

7 Q What time did you get to the Josefa building?

8 A Approximately around 2:30.

9 Q Who did you meet there when you first arrived?


11 interpreter?

12 Q Who did you meet at the Josefa building when you

13 first arrived there?

14 A Downstairs there was a policeman and I had asked

15 him for instructions. He directed me to go upstairs, and so

16 I did.

17 Q Who you met inside room number 603?

18 A Yes.

19 Q Who was the persons who you met them inside room

20 number 603?

21 A Present there, sir, were Capt. Fariscal,

22 Mr. Ramilo, Mr. Mandigma, and a foreigner that I had

23 identified here today.

24 Q Now, who was the highest rank personnel at that

25 time in room number 603 when you arrived?

2162

1 A When I first arrived it was Capt. Fariscal.

2 Q And who else was there from the explosive

3 ordnance disposal unit?

4 A Mr. Ramilo and Mr. Mandigma.

5 Q And was it your testimony that you were the chief

6 of the explosive ordnance disposal unit team at that time?

7 A That's correct, sir.

8 Q Now, was it your testimony that you saw some

9 chemicals in room number 603?


11 Q Were you ever concerned that there could be a

12 bomb in room number 603 when you first arrived and saw the

13 contents there?

14 A Yes, sir, that was one of my concerns when I

15 arrived there after seeing the chemicals that were there

16 that possibly there might be a bomb.

17 Q Were you concerned that there could be a bomb

18 based on what you allegedly saw or because you were

19 instructed to pretend or to act as if there was a bomb

20 there?

21 A No, sir, it was when I saw the parts and things

22 that could possibly make a bomb that I had that suspicion.

23 Q Well, as the chief of the explosive ordnance

24 disposal team did you ask the building to be evacuated when

25 you thought that there could be a bomb in the building?

2163

1 A No, sir, I didn't ask it could be evacuated, but

2 I did ask them not to touch anything at that time.

3 Q Well, did you ask anyone to call the ambulance to

4 arrive at the building in case a bomb would go off?

5 A No, sir, no one.

6 Q Did you ask anyone to call the firemen in case

7 the bomb would go off there?

8 A The report to me, sir, had included the fact that

9 there was already firemen that had gone there.

10 Q Well, did you do anything which indicates that

11 the alleged bomb threat was a serious threat and not a

12 fabrication, a fabricated story or a play which was played

13 by the Filipino National Police?

14 THE COURT: Yes, that sounds more like argument,

15 Mr. Yousef. Next question.

16 Q Now, sir, was it your testimony that you saw some

17 Casio watches in room number 603?

18 A Yes, sir.

19 Q How many watches did you allegedly see in room

20 number 603?

21 A Three Casio watches and one Adec watch.

22 Q This was at the first time when you went there?

23 A Yes, sir.

24 Q Was it your testimony that you found an empty

25 attache case in room number 603 when you first went there?

2164

1 A No, sir, it was at that point that I was on my

2 way out that I got this to use it.

3 Q I'm sorry, sir, would you repeat the answer?

4 (Record read)

5 Q Was it your testimony on direct on Thursday that

6 you found an empty attache case in room number 603?

7 A Sir, my testimony on Thursday was that I had

8 collected the things on Thursday that we were going to use,

9 and that particular attache case was available in the

10 bedroom, and that's what I used to store the things that I

11 had collected.

12 Q Was it your testimony that the attache case was

13 empty when you first found it?

14 A Sir, when I first opened it I saw that there were

15 some papers and a plastic in it, but to me it was empty.

16 Q Well, what are the things which you first

17 allegedly see inside the attache case when you first open

18 it?

19 A A plastic bag.

20 Q What else did you see?

21 A I believe that there were some papers there but I

22 didn't pay attention. I just wanted to use this as a

23 container.

24 Q What are the items which you placed in the

25 attache case?

2165

1 A Sir, I used that attache case. I put in there a

2 Casio watch that had a battery snap attached to it. I put

3 also in that attache case two batteries. Also, I had put in

4 that attache case an empty pipe, and folder that was handed

5 to me by Mr. Ramilo that contained some papers. Lastly,

6 like I had mentioned earlier, that on my way out I had put

7 the suspicious device that we had saw by the kitchen in the

8 cabinet.

9 Q Are these the only items that you placed in the

10 attache case at that time?

11 A Yes, sir.

12 Q What did you do next with the attache case?

13 A Sir, we went downstairs and it was our plan to

14 render the suspicious, to render safe the suspicious device.

15 Q Did you take the attache case when you went to

16 render safe the suspicious device?

17 A Sir, when we came downstairs it was still a

18 little bit dark so the attache case, we went to my office,

19 we deposited the attache case in my office. The suspicious

20 device was left in the vehicle and then we proceeded en

21 route to the reclamation area to render safe the suspicious

22 device.

23 Q Who else went with you to that area, sir?

24 A My personnel, Mr. Ramilo and Mr. Mandigma.

25 Q How did you render safe that device?

2166

1 A Sir, we rendered it safe first of all by locating

2 a spare tire, an empty spare tire. The entire tire then is

3 used. We put the suspicious device within the perimeter of

4 the spare tire, and using a disrupter we tried to take out

5 and we were successful in taking out the end cap of the

6 suspicious device.

7 Q Would you explain what the disrupter is, sir?

8 A Sir, a disrupter would be a thin piece of pipe

9 and this is what you use to open the suspicious device with.

10 What you need to do is use a 12 gauge bullet which is put

11 into this disrupter, and then you point it around the cap of

12 the suspicious device, and what we had used was a material

13 that is made out of steel.

14 Q And who was the person who used that device

15 during the rendering safe?

16 A Sir, it was the three of us assisting each other.

17 The first time that we tried to use the disrupter it did

18 misfire, and then the second time we rearranged it and we

19 were successful the second time that we used the disrupter.

20 Q Now, sir, who was the person who used that device

21 and what did the other persons do exactly regarding the

22 rendering safe that pipe?

23 A Sir, the first time that we tried to defuse the

24 suspicious device I was the person that put the mechanism on

25 an angle using the disrupter, and of course Mr. Ramilo, my

2167

1 company, was the one that was handling the firing line.

2 This is the first time that we tried it and like I said to

3 you earlier, it misfired. The second time it was

4 Mr. Mandigma who tried to position the placement of the

5 disrupter in an angle.

6 Q Now, sir, what did you do next with the contents

7 of that pipe after you opened it?

8 A Sir, after we had done that there was a mixture

9 there that was quite offensive an odor, and it smelled quite

10 badly, but we, realizing that there was no firing device or

11 mechanism in this, we just want to return the contents, the

12 chemical contents, the mixture that we had taken out of this

13 pipe, and returned it inside the pipe. After we had

14 returned that we tried to wrap it up in plastic.

15 Q And what happened next to the pipe after that?

16 A Sir, I brought it back with me to my office and I

17 returned it to the attache case.

18 Q And what did you do with the attache case next?

19 A Sir, at around 8 or 9 in the morning I was asked

20 to bring it over to the offices of the PSG, the Presidential

21 security group of the Malacanang Palace.

22 Q Sir, was it your testimony that at some time the

23 attache case and its contents were videotaped?

24 A Yes, sir, at around 12 noon when I was told to

25 retrieve it, before it was turned over back to me videotape

2168

1 and pictures were taken of the attache case and its contents

2 and this happened at the offices of the PSG at the

3 Malacanang before I was going to collect the attache case.

4 Q Who was the person, if you know, who videotaped

5 the contents of the attache case?

6 A Sir, I don't know this particular person.

7 Possibly a personnel of Col. Ferrer.

8 Q Do you know where that tape is, sir?

9 A No, I don't know, sir.

10 Q Now, sir, what did you do next in the afternoon

11 after 12 o'clock when the attache case was videotaped?

12 A Sir, it was returned to me. I brought it over to

13 my offices and I had it for safekeeping.

14 Q Now, was there a time in which you went to see a

15 judge pertaining to that incident in the Josefa building?

16 A That's correct, sir.

17 Q What time was it approximately when you went to

18 see the judge, sir?

19 A It was approximately around 3 o'clock.

20 Q And who else went there with you?

21 A My superior, Major Angeles.

22 Q Was he the only person who went with you to the

23 Judge?

24 A Sir, there were, there was also Lt. Tizon from

25 precinct number 9, and there were some other people from the

2169

1 investigation division I don't know.

2 Q Now, sir, did you make an affidavit under oath in

3 front of the judge?

4 A Yes, sir.

5 Q Is it the same type of oath under which you are

6 testifying here today?

7 A The one that was shown to me?

8 Q I'm sorry, sir?

9 THE COURT: The answer was, "The one that was

10 shown to me?" Question mark, I believe. But ask your

11 question again.

12 Q Now, sir, did you tell the judge about the place

13 where the attache case was found?

14 A Sir, I don't remember all the questions that was

15 asked of me by the judge, but I remember that I said to him

16 that this attache case was turned over to me.

17 Q So basically you did not tell the truth to the

18 Judge, am I correct, sir?

19 A Yes, I did, sir, that portion, part as to how I

20 was able to collect the attache case.

21 Q So is it fair to say that you lied under oath at

22 that time?

23 A Yes, sir, that portion as to how I came about the

24 attache case was not the right version, but I told him about

25 everything that I saw inside that room, and that was correct

2170

1 and right.

2 Q Was there anything that has prevented you from

3 telling him the truth under oath concerning that portion?

4 A Sir, I just followed through the instructions

5 that were given to me, and I was very much confused also

6 around that time.

7 Q Did you tell the judge that you were instructed

8 to lie?

9 A Could you repeat your question?

10 Q Did you tell the judge at that time that you were

11 instructed to lie concerning that portion?

12 A No, sir, he did not ask me that question.

13 Majority of his questions were referring to the things that

14 I saw inside that room, and I told him the truth about that.

15 Q Were you -- sir, you said that you were confused.

16 Were you confused in telling the difference between the

17 truth and the lying?

18 A Sir, that particular incident it was quite a

19 confusing time for me. I had just followed through the

20 instructions that were given to me. We were all confused.

21 The Pope was arriving at that time. There were major

22 security concerns with regard to his arrival, and that was

23 my instructions, and I followed the security matters that I

24 am referring to.


2171

1 Court to have that answer stricken and to have the witness

2 respond to my question?

3 THE COURT: Yes. The part about the Pope, all of

4 that comes out, ladies and gentlemen. Just take it out.

5 The rest of it can stand. Ask the question again if you

6 want.

7 Q Sir, at the time when you went to meet with the

8 judge did you know the difference between the truth and a

9 lie?

10 A Yes, I do, sir.

11 Q And what you told the judge was a lie under oath,

12 am I correct, sir?


14 THE COURT: What you told the judge was a lie

15 something, but I couldn't --

16 MR. SNELL: Under oath.

17 THE COURT: Under oath. I'll permit that.

18 A Yes, sir, that portion where, how I came into the

19 possession of the attache case, but the remainder of it was

20 the truth.

21 Q Sir, when did you receive -- when did you first

22 receive instruction to lie concerning that portion about the

23 attache case?

24 A That morning when I was having a talk at a

25 meeting with the major, he told me this.

2172

1 Q What time was it approximately, sir?

2 A Before noon time.

3 Q Now, sir, I'd like to direct your attention again

4 to the time when you went, when you first went to the Josefa

5 building and you met with the security guard. When you

6 first met with him did he brief you as to the nature of the

7 incident in room number 603?

8 A I didn't talk to any security guard.

9 Q Now, when you went to room number 603 the first

10 time, did you inspect the room from inside?

11 A Yes, sir.

12 Q After you inspected the room and prior to going

13 to the Judge, based on what you saw in room number 603, what

14 was your understanding as to the nature of the incident

15 which allegedly occurred in room number 603?


17 THE COURT: I'll let it go. Go ahead.

18 A Yes, sir. I based my observation on the report

19 that was given to us when they called our offices to report

20 that there had been a explosion or a fire in this particular

21 location.

22 Q Sir, based on what you saw in room number 603

23 after you went there, did you see any sign of an explosion,

24 any fragments, any damage that could have been caused by an

25 explosion?

2173

1 A Yes, sir, there were some burn mark by the

2 kitchen area as well as in the floor area.


4 (Record read)

5 Q Did that indicate to you that there were signs of

6 an explosion?

7 A No, sir, I can not tell you that. I was not

8 there when it happened.

9 Q Did anyone tell you that there was an explosion

10 in room number 603?

11 A That was the initial report that was placed in

12 our office.

13 Q Sir, was that your understanding after you saw

14 the marks in room number 603?


16 THE COURT: No, I'll permit it, go ahead.

17 A Those burn marks that were on the floor in the

18 kitchen area I believe, I believe that there were some kind

19 of a fire that occurred.

20 Q Sir, as an experienced explosive personnel did

21 you come to a conclusion that these marks could have been

22 caused by an explosion?

23 A That is possible, sir.

24 Q Now, sir, when you went to see the judge

25 concerning the search warrant did you tell him the nature of

2174

1 the incident which occurred, which allegedly occurred in

2 room number 603?

3 A I don't remember if I was asked that question,

4 sir.

5 DEFENDANT YOUSEF: Your Honor, could I ask the

6 witness to be shown 3523H?

7 THE COURT: Sure.


9 Q Now, sir, isn't it a fact that you told the Court

10 that there was an explosion which occurred in room number

11 603 at 12:50 a.m.?

12 A Yes, this reflects initial report that was

13 reported to us.

14 Q But when you met with the judge you'd already

15 been in room number 603 and noticed the condition of room

16 number 603, am I correct, sir?


18 Q Now, sir, what time did you finish the meeting

19 with the judge?

20 A Probably around past 4 o'clock.

21 Q Sir, was it your testimony that on January 7th

22 you prepared a report pertaining to that incident?

23 A Yes, sir.

24 Q When did you prepare that report, sir?


2175

1 interpreter, please?

2 Q When did you prepare that report?

3 A Around in the morning before noon I finished it.

4 Q Was that after you went for the first time in

5 room number 603 and you took out the attache case?

6 A Yes, sir, while it was at the Malacanang Palace I

7 was preparing my report.

8 Q Now, sir, was it your testimony on direct on

9 Thursday that you put a Casio watch and some other items in

10 the attache case because you wanted to show them to the

11 Judge?

12 A That was our intention, sir.

13 THE INTERPRETER: I'm sorry, correction.

14 That is my intention, sir.

15 Q Did you include that in your report that you took

16 the attache case in order to show it to the judge?

17 A No, sir.

18 Q Now, in the report which you prepared on January

19 7th did you list down where you found the attache case?

20 A No, sir.

21 Q Did you mention in your report where you first

22 saw the attache case?


24 interpreter?

25 Q Did you write down in your report where you first

2176

1 saw the attache case?

2 A Yes. I showed you the first time that I had made

3 a mistake in making my report with regards to how I was able

4 to collect the attache case.

5 Q Was that a mistake or were you instructed by

6 Major Angeles to include it in your report?

7 A These were the instructions that I knew that were

8 wrong.

9 Q Now, sir, did you mention in your report who was

10 the person who first found the attache case?

11 A Could I look at the report?

12 Q Sure.

13 DEFENDANT YOUSEF: Your Honor, could I have the

14 witness have 3523B.


16 A Yes, that portion as to how I got the attache

17 case, this attache case was given to me by someone from

18 precinct number 9.

19 Q So is it your testimony that this second portion

20 also is not correct?

21 A Which second portion are you talking about?

22 Q The portion concerning the person who found the

23 attache case?

24 A Yes, that portion of my report is not correct.

25 Q Now, did you include in your report, did you

2177

1 mention that you were the person who put the items inside

2 the attache case?

3 A Yes, sir, this version of the report was wrong.

4 My version is I was the person who put the things into the

5 attache case.

6 Q And does the report mention that you found the

7 attache case when you first found it was empty?

8 A No, sir. What the truth is, is I was the person

9 that collected and put the things in the attache case.


11 (Record read)

12 Q And does the report mention the truth concerning

13 that part?

14 A No, sir, that particular portion is not right.

15 Q Now, was it your testimony today that the only

16 items which you put in the attache case were a pipe, an

17 empty pipe, and the suspicious device, a Casio watch, and a

18 folder?

19 A Yes, sir.

20 Q Now, did you include in your report some other

21 items which you did not put in that attache case?

22 A Yes, sir. There were things that I found later

23 on that had nothing to do with the making of the bomb that I

24 had put in there.

25 Q Did you include in your report items which you

2178

1 did not personally put inside the bag?

2 A Yes, sir, the coins and the condoms.


4 again to the rendering safe procedure of the alleged pipe

5 bomb. Would you explain, sir, the disrupter which you

6 mentioned, could you tell us, please, if the description of

7 the size of that, of the device which was used to render

8 safe the pipe?

9 A Yes, sir. That instrument is a stainless steel

10 tube which is probably about 14 to 12 inches long and at the

11 end of it is a screw mechanism where then you could attach

12 the 12 gauge shot bullet that you could put.


14

15

16

17

18

19

20

21

22

23

24

25

2179

1 Q Does it fire a bullet, sir?

2 A Yes, sir. The cartridge of the shot, what we do

3 is, we put some black powder into it and that is then

4 attached to an igniter, and that is where you do the firing

5 line.


7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2180

1 DEFENDANT YOUSEF: Your Honor, is this the right

2 time for a break now?

3 THE COURT: Sure. All right, ladies and

4 gentlemen.

5 (Jury excused)


7 THE COURT: Mr. Yousef, do you have any idea how

8 long you will be with Cruz?

9 DEFENDANT YOUSEF: The rest of the afternoon,

10 sir.

11 THE COURT: OK. Who is going to do the cross?

12 Mr. Udell?

13 MR. UDELL: Couple of hours, your Honor.

14 THE COURT: Couple of hours.

15 MR. GREENFIELD: I will be a lot shorter than I

16 thought, your Honor.

17 THE COURT: All right, take 10.

18 (Recess)

19 (Witness resumed; jury present)

20 THE COURT: All right, Mr. Yousef.


22

23

24

25

2181


2 Q Now, sir, isn't it a fact that according to the

3 Philippine Constitution it is a crime to falsify a report?

4 A What do you mean, in our Constitution?

5 Q Yes, sir.

6 A I am not aware of any provisions like that, sir.

7 Q I am sorry, sir.

8 THE COURT: The answer was, "I am not aware of

9 any provisions like that, sir."

10 Q Now, sir, is it your understanding that according

11 to the Constitution of the Philippines you are allowed to

12 falsify a report?

13 A I don't believe that that is contained in our

14 Constitution, but there is such a law.

15 Q You mean, there is a law which permits a person

16 to falsify a report?

17 A No, sir, there isn't.

18 Q So, isn't it a fact that it is a crime, according

19 to the Constitution of the Philippines, to falsify a report?


21 THE COURT: Take out the word "Constitution,"

22 and redo it.

23 Q Isn't it a fact that in the Philippines it is

24 regarded as a crime to falsify a report?

25 A What do you mean by that, sir?

2182

1 A When you write down a report as a police officer,

2 explaining the events which allegedly took place, and you

3 falsify the report, is that considered as a crime in the

4 Philippines?

5 A Yes, sir, you are correct.

6 Q So would it be fair to say that you were

7 instructed by your superior to commit a crime?

8 A Sir, it is not exactly the way I would put it,

9 but yes, you are right that it is a crime. But under the

10 circumstances at that time, when I was instructed to do

11 that, we were under a very extreme circumstances and I was

12 under pressure, and I had to follow through what I was asked

13 to do.

14 Q Are there some exceptional circumstances under

15 which you can lie or falsify a report in the Philippines?

16 A Sir, I did not say that, sir. What I am trying

17 to tell you is, this particular situation was a very trying

18 circumstance for us. Our national security was at threat,

19 and at that time the Pope was coming to visit and we had to

20 make secure that his visit was safe and it was done the way

21 it should be.

22 Q Is it your testimony that under such

23 circumstances you are permitted to commit a crime?

24 A No, sir, I didn't say that we are permitted to do

25 that.

2183

1 Q And those same circumstances would allow you to

2 falsify evidence, is that correct, sir?

3 A Sir, I did falsify the statement to the facts as

4 to how I had collected that particular attache case, but

5 with regards to the other evidence and the things that were

6 collected, that was collected in apartment 603, that is the

7 truth.


9 answer to be stricken and the question to be repeated,

10 please?

11 THE COURT: No, it is an answer.

12 Q Now, sir, there was a part of your report which

13 you falsified, am I correct, sir?

14 A Yes, sir, you are correct, that portion where I

15 had written the way how I came about this particular attache

16 case is indeed wrong and a lie, but with regards to the

17 contents of what I had collected inside apartment 603, that

18 is the truth. Everything that was inside that attache case

19 I had collected just the way as I have described it, inside

20 apartment 603 at that time.

21 Q Is it your testimony, sir, that this part which

22 was not true was written down according to, due to the

23 exceptional circumstances?


25 Q So according to those exceptional circumstances,

2184

1 you would also be permitted to commit other crimes or

2 falsify or fabricate the evidence, would that be a fair

3 statement, sir?


5 THE COURT: No.

6 A Sir, I did not fabricate any evidence. All the

7 things that were contained in that attache case were

8 collected from apartment 603. That portion in my report

9 where I mentioned as to how I came about that attache case

10 was falsified. It was wrong and I admit to that.

11 Q Is it your testimony that this is the only

12 portion which is not true?

13 A Yes, sir. When I prepared that report, that

14 portion that I had mentioned to you, that portion where I

15 described how I came about the attache case, that was

16 falsified and I was wrong.

17 Q Sir, the other portion concerning the items which

18 were inside the attache case, does the report tell the truth

19 also? Does the report say that you are the person who put

20 these items inside the attache case?

21 A Sir, I just mentioned in my report the things

22 that were put inside the attache case, and I was the person

23 that put it in there.

24 Q Does your report reflect that you are the person

25 who put these items in the attache case?

2185

1 A No, sir. My report says that the contents were

2 turned over to me, but the truth of the matter is, I was the

3 one that put the things inside the attache case.

4 Q Does the report reflect that you were the one who

5 put these items inside the attache case?

6 A No, sir, and that is why I am telling you the

7 truth today, that I was the person that put the things

8 inside the attache case.

9 Q Does the report say that you found the attache

10 case empty?

11 A Sir, I did not mention that in my report because

12 of the fact that my intention to use the attache case was as

13 a container.

14 Q Is that reflected in your report?

15 A No, sir, it is not.

16 Q Now, sir, was there a time on January 7 of 1995

17 that -- withdrawn.

18 Sir, on January 7, 1995, were you the superior of

19 Mr. Ramilo?


21 Q And according to the procedures in the explosive

22 ordinance disposal unit, when Mr. Ramilo writes the report,

23 does he turn the report over to you?

24 A Sir, at that time he was the one that was

25 supposed to make the report, but since I was present at the

2186

1 office that day, I told him that I would be the one to

2 prepare the report.

3 Q Sir, did you instruct Mr. Ramilo to falsify his

4 report on January 7, 1995?

5 A Sir, I told him about the instructions that I

6 received with regards to preparing a report, but I told him,

7 and I didn't ask him to prepare a report.

8 Q Did you give him a list of the items and instruct

9 him to include them in his report?

10 A Sir, at that time that we were doing the

11 inventory, he was in front of me, and he knows that I was

12 going to prepare a report. Whether he had a copy of my

13 report and that's what he based his report on, I don't know.

14 Q Sir, my question is, did you give Mr. Ramilo a

15 list of items and ask him to include these items in his

16 report as the items which were allegedly found in the

17 attache case?

18 A I don't know, sir. All I remember is, I told him

19 that he should not prepare a report, that I was going to be

20 the one to prepare a report.

21 Q Sir, was it your testimony today that when the

22 alleged pipe bomb was opened, it didn't contain any alleged

23 timing device or timing mechanism?


25 Q Sir, did you give Mr. Ramilo a list of items

2187

1 which were allegedly found inside this pipe bomb and ask him

2 to include these items in his report as items being found

3 inside that pipe?

4 A Sir, I did not give him a list of anything. He

5 was there and he was present at the time that we were going

6 to take care of the suspicious device.

7 Q So if Mr. Ramilo would say that you gave him a

8 list, he would be not telling the truth?

9 A I cannot tell you that, sir. I know that I have

10 a copy of my report in my office. Whether he has access to

11 it, I don't know.

12 Q As the superior of Mr. Ramilo, did there come a

13 time at all when you saw a report which was prepared by

14 Mr. Ramilo?

15 A He told me that he was going to prepare a report.

16 My response to him at that time was that it was not

17 necessary for him to prepare a report, that I would do it.

18 Q Did you give him any specific instructions as how

19 to prepare a report? Would you answer the question by yes

20 or no, sir.

21 A No, I don't remember, sir. I told him that he

22 should not prepare a report.

23 Q Now, sir, did you give him a list of items?

24 A Sir, what I can tell you is at that time that we

25 were doing the inventory, Mr. Ramilo was present there.

2188

1 Whether he was preparing his own list at that time that we

2 were doing the inventory, I cannot tell you that.

3 Q Now, sir, did you give him a list to include it

4 in his report? Yes or no.

5 A As I have said to you, sir, I told him that he

6 should not prepare a prepare a report. Whether he has a

7 copy of my report at that time, I don't know.


9 court to help me to have the witness respond?

10 THE COURT: Sure.

11 Did you give Mr. Ramilo a list of the items found

12 in the suspicious device?

13 THE WITNESS: I don't remember.

14 Q Now, sir, as the superior of Mr. Ramilo, did

15 Mr. Ramilo tell you at all that he was interviewed by the

16 FBI?

17 A Could you repeat that.

18 Q Did Mr. Ramilo ever ask or seek your permission

19 before meeting with the FBI?

20 A No.

21 Q Now, sir, was there a time on January 8 of 1995,

22 when you prepared a report relating to the alleged incident

23 at room number 603 of the Josefa building?

24 A January 7, are you saying?

25 Q January 8, 1995.

2189

1 A Yes, you are correct.

2 Q Now, sir, did you mention in that report that you

3 placed some items in the attache case, Casio watches and

4 other items, in order to show them to the judge?

5 A Which report are we talking about? January 7 or

6 January 8?

7 Q The one that was prepared on January 8 of 1995.

8 A That was turned over only to my superior, Major

9 Angeles.

10 Q Sir, my question is, did you mention in that

11 report that you placed some items in the attache case in

12 order to show them to the judge?

13 A I don't know. I was not the person that made the

14 return of the warrant. It was my superior Major Angeles, so

15 I can't tell you.

16 Q I am sorry, sir. Did you say you did not prepare

17 the report?

18 A What I am saying is, I submitted my report to

19 Major Angeles.

20 Q The report that you submitted to Major Angeles,

21 did you mention in that report that the items which you say

22 you put them in the attache case, you put them in the

23 attache case in order to show them to the judge?

24 A Yes. That particular report there, sir, on

25 January 8 did not mention that. What it mentions is the

2190

1 incident that happened after we had served the warrant. It

2 also included the things that I had collected from the

3 apartment 603 at that time.

4 Q Is there any report at all which you prepared

5 that mentions that the items which you allegedly placed in

6 the attache case were placed for showing them to the judge?

7 A There was no report, sir, but I showed it to the

8 judge.

9 Q Sir, I would like to direct your attention to the

10 search process of room number 603. What time did the search

11 start, sir?

12 A At around 5:30 in the afternoon of January 7.

13 Q Who were the other personnel of the explosive

14 ordinance disposal unit who were in room number 603 during

15 the search?

16 A Yes. From my particular unit, sir, it was

17 Mr. Ramilo, Mr. Mandigma, Mr. Capacete, and Mr. Gomez.

18 Q Were you the superior of all those individuals,

19 sir?

20 A These four persons, sir, yes.

21 Q Were you you the person who assigned them to

22 their task in room number 603?

23 A Could you repeat, please.

24 Q Were you the person who assigned them specific

25 duties to carry out in room number 603?

2191

1 A Yes, sir, I gave them the assignments.

2 Q What did you assign Mr. Gomez to?

3 A Particularly for Mr. Gomez, I had assigned him to

4 do the writing of the inventory as well as the marking of

5 the inventory.

6 Q Did you give him any instructions regarding the

7 items which he should include in the inventory?

8 A Everything that was inside the room, we went

9 through it one by one. As we went through it he was listing

10 it, and as he is listing it he is marking it with a tape.

11 Q Did you verify his inventory which he prepared,

12 sir?

13 A Yes, I saw it at that time that he was making it,

14 as we were doing the inventory. This eventually was given

15 and submitted to Major Angeles.

16 Q So is it your testimony that while you were

17 verifying the contents of room number 603 one by one,

18 Mr. Gomez was writing them down?

19 A Yes, sir. Yes, it was I that was sort of just

20 like supervising, when it was really Mr. Ramilo and

21 Mr. Mandigma who was assisting Mr. Gomez at that time. You

22 know, they would go to the items that were present inside

23 the room and say they had found some sulfuric acid, they

24 would make a notation, there was four gallons of sulfuric

25 acid, and that's the way it went.

2192

1 Q Sir, was there a person in room number 603 who

2 was taking photographs, still photographs?

3 A Yes. During the search there was a person taking

4 photographs.

5 Q Do you know who that person was?

6 A This person was summoned by Major Angeles, and so

7 I did not know this person.

8 Q Do you know from which department of the

9 Philippine National Police he was?

10 A Major Angeles explained to me that he was the

11 official photographer.

12 Q I am sorry, sir.

13 THE COURT: Do you want to repeat it, Martha,

14 please.

15 (Record read)

16 Q Did you know his name at that time?

17 A I forgot, sir.

18 Q Is there a photographic section of the Philippine

19 National Police?

20 A In our western police district, yes, there is.

21 Q Do you know if they have a video camera in the

22 photography section?

23 A I don't know, sir.

24 Q Now, sir, did you assign Mr. Capacete to

25 videotape inside of room number 603?

2193

1 A Actually, it was Major Angeles that assigned that

2 to him, but since I was present at that time that he was

3 there, I reiterated the instructions that since he had the

4 video he was the person to take the videotape.

5 Q Do you know when first Mr. Capacete was

6 instructed to videotape the contents of room number 603?

7 A I don't know. When I arrived there, he had the

8 video with him.

9 Q Did you have any meeting or conference with

10 Mr. Capacete on January 7, 1995, prior to the search of room

11 number 603?

12 A Yes, before we headed to that location, we had a

13 briefing.

14 Q What time was that, sir?

15 A That afternoon before we left our offices.

16 Q During that meeting, did you discuss with

17 Mr. Capacete as to what he supposed to do when you go to

18 room number 603?

19 A Yes. I told him that he was the one that was

20 going to take the videotape, because he is the one that has

21 a video camera.

22 Q And do you know where he brought the video camera

23 from?

24 A I don't know where it came from. I think that it

25 is his own personal video.

2194

1 Q Now, sir, was it your testimony also that during

2 the search of room number 603 there was a fingerprint expert

3 there?


5 Q Now, sir, do you know if there was a report

6 prepared based on the lifting of fingerprints done in room

7 number 603?

8 A I don't know, sir, if he had prepared a report.

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

10 you took a black bag or Concord bag, and you placed some

11 items inside it?

12 A Yes, sir.

13 Q When did this happen?

14 A Which are we talking about?

15 Q When did you place these items in the Concord bag

16 and took it out of room number 603?

17 A That was during the serving of the warrant that

18 evening.

19 Q What time was it, approximately, sir?

20 A I cannot tell you exactly, sir. I can tell you

21 as the warrant was served and it happened starting at 5:30

22 and we completed at 10:00. So around those times that is

23 when I did that.

24 Q Did you take the bag out of room number 603 after

25 the search was ended?

2195

1 A Yes, sir.

2 Q So would it be fair to say that the black bag and

3 the contents which you placed inside the bag were in room

4 number 603 during the search, from 5:30 until 9:30 or 10:00

5 p.m.?

6 A During the serving of the warrants, these were

7 the things that I had in my possession that I had put in the

8 bag.

9 Q Now, sir, in the report which you prepared on

10 January 8 of 1995, did you mention anything about this black

11 bag or the Concord bag and the alleged items that you placed

12 inside this bag?

13 A Yes, sir.

14 Q Did you mention the name of Concord bag in your

15 report which you prepared on January 8?

16 A I don't remember. I would like to look at that

17 report.

18 DEFENDANT YOUSEF: Your Honor, may I have the

19 witness be shown Exhibit 523A?

20 THE COURT: Sure.

21 Q Second page, last paragraph.

22 A I did not mention it specifically in this report

23 because I had just used it as a container for the things I

24 collected.

25 Q Did you mention in this report that you used a

2196

1 container?

2 A No, sir, I did not.

3 Q Now, sir, did you mention anything in this report

4 about the magazine which you allegedly also put in that bag?

5 A No, sir, I did not, because that wasn't a part of

6 the bomb-making process.


8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2197

1 DEFENDANT YOUSEF: Your Honor, may we continue

2 tomorrow? I have a new area to go to.

3 THE COURT: All right, ladies and gentlemen. See

4 you tomorrow morning.

5 (Jury excused)

6 (Witness excused)

7 MR. GREENFIELD: Should I save my application for

8 tomorrow?

9 THE COURT: You might as well make it.

10 MR. GREENFIELD: It is the same one. Do you want

11 me to be specific?

12 THE COURT: No.

13 MR. GREENFIELD: I think one area should be

14 covered. I think four or five times it was put in the

15 record adds to confusion, being national security, Pope, and

16 that it was repeated four or five times. Consistent with

17 that, I think the answer is apparently for the first

18 question but it is antagonistic to my defense. It is

19 harmful to my client's case. I move for a mistrial.

20 THE COURT: The answer is no.

21 The unfortunate part is, a million years ago --

22 not really -- about 1914, a guy by the name of Francis X.

23 Wellman wrote a book called The Art of Cross-examination, in

24 which he lauds a cross-examination which marched through

25 direct examination all over again, and then did it a third

2198

1 time, and so on and so forth. It is the worst example of

2 drivel I have ever read. It is the most dangerous thing in

3 the world to do. But Wellman's book is still making money

4 for his heirs, and so on and so forth. I would, however,

5 point out, it was called The Art of Cross-examination. The

6 reason that cross-examination is an art is because you have

7 to know when to stop.

8 Mr. Yousef can't really be blamed, but believe it

9 or not, I know at this point that most likely you are

10 thinking about being your own lawyer in the next trial. I

11 think an experienced cross-examiner would have stopped in a

12 couple of places. The trick is to get an admission and then

13 stop, because if you continue on you get not the admission,

14 you get the explanation, which is not what you really want,

15 at least on cross-examination.

16 Tomorrow, 10:00.

17 (Proceedings adjourned until 10:00 a.m., Tuesday,

18 July 16, 1996)

19

20

21

22

23

24

25

2200




22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY

24

25

2201


2 THE COURT: We'll wait for Mr. Kulcsar.

3 (Pause)

4 THE COURT: We started this case on the 13th day

5 of May. Opening statements were on the 29th day of May.

6 The first witnesses were on the 30th of May. I was told by

7 the government that this case would take eight weeks. On

8 the basis of the government always underestimating I

9 suggested to the jury it will take 12.

10 Since May 30th we've had now our seventh week. I

11 can't believe that the government expects to finish with

12 their part of it by next Friday. There are a lot of reasons

13 why. A lot of it lies strictly with the government, but

14 that's neither here nor there.

15 The jury has started to ask, what's going on?

16 Are we going to stay here forever? And it seems like we

17 are. Terrible.

18 We're going to start at 9:30 every morning and

19 while I know I look for Fridays to take care of the rest of

20 my calendar, and, I assume you guys do, too, you're not

21 going to have Fridays any more, and neither am I. I will be

22 sentencing people at night and taking care of things at

23 night. I assume you will have to do the same thing.

24 Tomorrow morning we start at 9:30. Now, the jury

25 may run into problems with Fridays, and since I had made a

2202

1 contract with them I intend to go along with the contract,

2 but only until the first Friday in August. After that, it's

3 all downhill, because after the first Friday in August no

4 matter how you count it, we're running out of weeks. At the

5 rate it's going now I suspect that we will be here for at

6 least Halloween; if not Halloween, maybe Thanksgiving.

7 MR. GREENFIELD: That's this year.

8 THE COURT: I have no idea. Some people will say

9 or attempt to say this is all because we have a person

10 representing himself. That's wrong. Much of it is because

11 of poor planning and poor preparation. That's neither here

12 nor there. We're stuck in the situation we're stuck in. So

13 don't look for breaks on time. I can't give it to you.

14 It's just out of control at this point. Bring in the

15 witness, continue the trial. You think I'm fooling about

16 that, I told you I'm not. It's over in November.

17 MR. GREENFIELD: As a matter of fact, your Honor,

18 if I might, at an appropriate time today or tomorrow, I'd

19 like to speak to the Court with respect to another case I

20 have in October.

21 THE COURT: Sure. You want to count how many

22 witnesses we have on? My count, this is 26. There are over

23 50 witnesses. Instead of eight weeks, it's more like 18, 20

24 weeks. The big witnesses are yet to come. Then we'll have

25 defense case on top of that.

2203

1 JOSE L. CRUZ, resumed, through the interpreter.

2 (Jury present)

3 THE COURT: Good morning, folks. Okay. We're

4 still here with Joseph L. Cruz. Cross-examination, Mr.

5 Yousef.

6 CROSS-EXAMINATION (Continued)



9 A Good morning as well, sir.

10 Q Sir, I would like to direct your attention to

11 January 7, 1995, when you first entered room number 603 at

12 around 2:30 a.m.

13 Now, sir, was it your testimony that you took an

14 attache case with some items inside it out of room 603 at

15 that time?

16 A Sir, that time would have to be around 4 o'clock

17 early in that morning as we were getting ready to leave when

18 I collected the things that I needed to get and put it in

19 the attache case.

20 Q Now, when you left the room who else was left

21 behind from the Filipino National Police personnel?

22 A There were a lot of personnel and officers there,

23 sir.

24 Q Do you recall their names?

25 A Before I left to go downstairs present there

2204

1 still was Gen. Canson, Gen. Ebdane and Major Bautista.

2 Q Were they the only individuals who were left

3 behind in room number 603 when you left it?

4 A Sir, in addition to them there were other

5 personnel there from other police station, and there were

6 other people there.

7 Q Do you recall their names, sir?

8 A Majority of those people I don't know, sir.


10 now to January 8, 1995, when you prepared a second report.

11 Now, sir, prior to that, I would like to ask you

12 about the Concorde bag, the black bag which you testified

13 that you took out from room number 603 after the search.

14 Would you tell us what was the reason why you took that bag

15 out of room number 603?

16 A I used it as a container for the things that I

17 collected.

18 Q Now, sir, what was the reason for taking out the

19 items which you placed in the Concorde bag?

20 A Sir, in particular I wanted to study the firing

21 system of this particular watch that I took because it only

22 had one battery snap.

23 Q Now, sir, now I'd like to direct your attention

24 to the report that you prepared on January 8th. In that

25 report did you mention the events regarding the attache case

2205

1 and where it was found?

2 A Yes, the first portion of this contains that.

3 Q And did you write down the truth in that second

4 report?


6 interpreter, please?

7 Q Sir, was this a second report which contained to

8 the incident which you wrote?

9 A This has to do with the service of the warrant,

10 sir.

11 Q Was this a second report which you wrote down

12 concerning the events which allegedly took place in room

13 number 603?

14 A Yes, sir.

15 Q Now, in this second report did you tell the truth

16 about where the attache case was found?

17 A With regard to how he came about the attache case

18 I did not say the truth.

19 Q And did you tell the truth with regard to how the

20 items came into the attache case?

21 A That is not mentioned in the report, sir.

22 Q Now, sir, do you recall being interviewed by the

23 FBI?

24 A Yes, sir.

25 Q And do you recall when was the first time in

2206

1 which you were interviewed by the FBI in the Philippines?

2 A The actual interview occurred at Camp Crame.

3 Q And when was that, sir?

4 A Perhaps it was about three or four weeks after.

5 Q Now, in that interview did you tell them the

6 truth about the attache case and the place where it was

7 found?

8 A With regards to how I came about the attache case

9 I continued on with the story that I had written on my

10 report which was a false story, and the reason why I did

11 that was I thought that it would be much easier for me.

12 Q Did anyone instruct you to lie at them at this

13 time?

14 A No, sir, no one did and I take responsibility for

15 that.

16 Q So it was easier for you to continue a lie rather

17 than to tell the truth?

18 A Yes, sir, pertaining to how I came about the

19 attache case it was wrong, and it was a lie, but with

20 regards to the things that I collected inside the room it is

21 the truth, that is where I collected it, and those are the

22 items that I got there.

23 Q Is it your testimony that no one instructed you

24 or pressured you to lie at the FBI?

25 A No, sir.

2207

1 Q Was it your testimony yesterday that the reason

2 for falsifying the report was due to the exceptional

3 circumstances?

4 A Yes, sir, pertaining to that incident on January

5 the 7th.

6 Q And is it your testimony now that there was no

7 reason for you to lie but you just chose to lie?

8 A Sir, the situation on January the 7th was

9 entirely a different situation. Those were troubled times.

10 Those were concerning national crisis in my country, and

11 today I find myself in a completely different situation and

12 I am free to tell you what is the truth.


14 Court the answer to be stricken and the question to be read

15 back?

16 THE COURT: Well, unfortunately you've had the

17 answer given now about three times. I'll strike it this

18 time, but you've also had the question at least three times,

19 too. Next.

20 MR. GREENFIELD: Your Honor, may the Court note I

21 have an application later?

22 THE COURT: Yes.

23 Q Now, sir --

24 THE COURT: Ladies and gentlemen, that last

25 answer, forget about it.

2208

1 Go ahead.

2 Q Now, sir, do you recall telling the FBI that you

3 observed a large cooking pot in room number 603?

4 A I did see one, sir, but I don't remember if I

5 told that to the FBI.

6 Q Will you describe how that looked like?

7 A Sir, that would be a large cooking pot, stainless

8 steel, which had some burn marks and it was around the

9 kitchen area where I saw that. Actually I need to correct

10 myself. I don't know if that is a stainless steel pot.

11 That may be an aluminium pot.

12 Q Would you describe if any marks was in that

13 cooking pot?

14 A There were some burn stains in the pot itself and

15 also around the kitchen area.

16 Q And were the burn marks obvious on the pot

17 itself?

18 A Yes, on the side, sir, you can see the markings.

19 Q Now, sir, when you were interviewed by the FBI on

20 February of 1995, did you tell them anything about the black

21 Concorde bag checking it out, taking it out of room 603 and

22 placing some items in it?

23 A It is possible that I mentioned it to them but I

24 can not remember everything that I told them at this time.

25 Q Did you tell them anything about taking out a

2209

1 magazine?

2 A During the interview I don't know if I had

3 mentioned that to them or not, but during the processing of

4 the evidences at the United States Embassy in Manilla I

5 presented them everything that I had, including the

6 magazine.

7 Q Now, sir, did you tell them that the reason you

8 placed some items in the attache case was to show it to the

9 judge?

10 A I don't remember, sir, if I mentioned that to the

11 FBI.

12 Q Now, sir, are you aware of an explosion which

13 occurred aboard the Philippine Airline on December, 1994?

14 A Yes, sir, that was in the papers all of the

15 papers in the Philippines.

16 Q Did you participate in any way in the

17 investigation that was going on for that case?


19 Q Were you ever asked to help the investigators in

20 the investigation which was going on pertaining to that

21 incident with the Philippine Airlines?

22 A Mr. Calvin Walbert approached me.


24 A Mr. Calvin Walbert of the FAA approached me.

25 Q And what did they tell you -- withdrawn.

2210

1 THE COURT: Do you want that?

2 DEFENDANT YOUSEF: No, your Honor.

3 THE COURT: Okay, I didn't think so. All right.

4 Q Did they approach you regarding the incident of

5 the explosion?

6 A Which explosion are you referring to?

7 Q Aboard the Philippine Airline?

8 A The reason why he approached me is because they

9 wanted to see what we had collected from the Josefa

10 Apartments.

11 Q Now, did anyone ask you to examine anything which

12 was found in the Josefa apartment and to find similarities

13 between that and whichever was found in the Philippine

14 Airline?

15 A Yes, he told me that he wanted to take pictures

16 of the watch and the things that I had collected from the

17 Josefa Apartments because there might be some similarities

18 and he wanted to look into this.

19 Q Did he ask you at all to examine them?

20 THE INTERPRETER: Repeat for the interpreter,

21 please.

22 Q Did he ask you to examine them and compare them

23 with whatever was found or recovered from the Philippine

24 Airline?

25 A I don't know who's investigating the situation,

2211

1 sir.

2 Q When did this happen, sir? When did that person

3 approach you and ask you to show him the items?

4 A It was more than two weeks after the incident and

5 that was before I went to the US Embassy.

6 Q Now, sir, do you recall -- withdrawn.

7 Sir, isn't it a fact that you told the FBI that

8 the reason -- I withdraw the question.

9 (Pause)

10 MR. KULCSAR: Your Honor, may these be handed to

11 the witness?

12 THE COURT: Yes.

13 Q Now, sir, the items before you -- does your Honor

14 remember the Government Exhibit numbers?

15 THE DEPUTY CLERK: Government Exhibit 334D as in

16 David, Government Exhibit 334A, Government Exhibit 334C

17 Government Exhibit 334B as in boy, Government Exhibit 334.

18 THE COURT: Okay.

19 Q Now, sir, was it your testimony that these items

20 were taken by you while the search was being conducted in

21 room number 603?

22 A Yes, these things that are contained in this

23 black Concorde bag I collected this during the search.

24 Q Did these items also include Casio watches, am I

25 correct, sir?

2212

1 A Yes, there is.

2 Q Now, sir, during the interview with the FBI did

3 you tell them that the reason you kept the Casio watch which

4 you took during the search was to have it examined for

5 similarities to the timing device of the bomb which exploded

6 aboard the Philippine Airline in December of 1994?

7 A Sir, I don't remember saying anything of that

8 nature to the FBI. What I remember telling them is that I

9 said that I wanted to study the firing system.

10 DEFENDANT YOUSEF: Your Honor, may I have the

11 witness to be shown 3523C.

12 (Document handed to witness)

13 Q The second page, last paragraph.

14 Now, sir, having read the document, did you tell

15 the FBI that the reason why you took the Casio watches on

16 January 7, 1995, was to examine them for similarities with

17 the timing device which was recovered from the Philippine

18 Airline on December 11, 1994?

19 A Sir, at that time on January 7, 1995 I did not

20 know any relationship or anything that had to do with that

21 incident. Later on I was interviewed by Mr. Walbert and

22 that was time that I had learned anything about such a

23 relationship from him, but then I did not know anything

24 about it at that time in January 7, 1995.

25 Q So is it your testimony that you never made that

2213

1 statement to the FBI on that I date?

2 A Sir, it was already in the month of February,

3 1995 when I spoke to the FBI and I had mentioned to them

4 about this, and at that time I had already spoken to Mr. Mr.

5 Calvin Walbert.

6 Q Now, sir, is it your testimony that you did not

7 tell the FBI that the reason for taking these items on

8 January 7th was to examine them for similarities with

9 whatever was recovered from the Philippine airliner?

10 A Yes, sir, again, I repeat to you that on January

11 7, 1995, I had no knowledge of anything that it had to do

12 with the Philippine Airlines explosion. I also am telling

13 you that at some point Mr. Mr. Calvin Walbert spoke to me

14 and that's when I learned about this, and later on the FBI

15 spoke to me.

16 Q So is the answer no, that you didn't tell the FBI

17 that the reason why you took these watches on January 7th

18 was to examine them for similarities with whatever was

19 recovered from the Philippine airliner?

20 A Sir, on January 7, 1995 I did not know anything

21 about relations with the incident that happened with the

22 Philippine Airlines. In February, when I was interviewed by

23 the FBI I told them about what me and Mr. Walbert had talked

24 about.


2214

1 brief moment?

2 THE COURT: Pardon?

3 DEFENDANT YOUSEF: Could I have one brief moment?

4 THE COURT: Sure.

5 (Pause)

6 Q Now, sir, after January 7 of 1995, did you

7 participate in any way in the investigation regarding a

8 person named Naji Haddad?

9 A I have no participation in that investigation.

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

11 that you were instructed to investigate and conduct a

12 surveillance on Naji Haddad on January 13th of 1995?

13 A Sir, I wasn't asked to do any investigation. I

14 was just included in a group that were doing a follow up at

15 that time.

16 Q And what did this followup pertain to?

17 A That there had been some information that

18 possibly those people that were in the apartment 603 were at

19 the Diamond Hotel.

20 Q Did you do anything in regard to that

21 investigation, sir?

22 A Yes, we checked in and we were going to assist

23 should it be positive, should the intelligence command find

24 out that it was positive.

25 Q Sir, who was the person who instructed you to

2215

1 participate in these activities?

2 A Major Angeles invited me.

3 Q And what did you specifically do in regard to

4 that investigation?

5 A I just went there to check in their group.

6 Q I'm sorry, sir, to check in where?

7 A Check them in the hotel.

8 Q And which hotel you're talking about, sir?

9 A The Diamond Hotel.

10 Q And what was the reason for checking in the

11 Diamond Hotel?

12 A They checked into the hotel to do a surveillance

13 of the possible suspect that might be on the 20th floor.

14 Q Did you check in the hotel with them?

15 A Yes, intelligence command was checked in close to

16 the room, and we were checked in further away.

17 Q And who were the person who you were conducting

18 surveillance on them?

19 A It was only my group that I knew about.

20 Q Who were the person who you were following up in

21 the Diamond Hotel who were conducting investigation.?

22 THE INTERPRETER: Could you repeat that for the

23 interpreter?

24 Q I withdraw the question.

25 Now, who was the person who instructed you to

2216

1 participate in the investigation? Was it Major Angeles or

2 was it Gen. Canson?

3 A Major Angeles was the one that invited me because

4 I knew the chief of security of the Diamond Hotel.

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

6 that you were instructed by Gen. Canson to investigate and

7 conduct surveillance on a person who they believed was Naji

8 Haddad?



11 A That happened later on when we went to the

12 outpost by the Manilla hotel, and General -- I'm sorry,

13 Major Angeles brought me there, and introduced me to Gen.

14 Canson, and he told us to go ahead and proceed to the

15 Diamond Hotel.

16 Q And did you conduct a surveillance on Naji Haddad

17 at the Diamond Hotel?

18 A No, sir, we were just on standby. It was the IC

19 that was to handle that. We were just there, just in case,

20 on standby.

21 Q Was there a time when Naji Haddad was videotaped

22 while he was in the Diamond Hotel?


24 THE COURT: Yes, outside the scope of direct.

25 I'll let it go. Go ahead.

2217


2 interpreter?

3 THE COURT: Sure. Was there a time when Naji

4 Haddad was videotaped at the Diamond Hotel?

5 THE WITNESS: That's what we were told

6 apparently. That's what they told us.

7 MR. SNELL: Your Honor, I object.

8 THE COURT: Yes. Ladies and gentlemen, the

9 motion to strike is granted. Forget about that last answer.

10 All right. Next.

11 Q Did you see the videotape which they videotaped

12 Naji Haddad there?

13 A They showed us a videotape of a person coming out

14 of the door and that person is not discernible. The

15 videotape was poor, and it was a person that was facing

16 back, going out. We couldn't tell.

17 Q Did you tell the FBI that you saw a videotape,

18 you observed a videotape for the individual who you were

19 conducting surveillance on him, and who Gen. Canson told him

20 that he's Naji Haddad.


22 THE COURT: That's all kinds of triple hearsay

23 and so on and so forth. It doesn't matter. Yes, sustained.

24 Q Now, sir, where is that videotape?

25 A I don't know, sir.

2218

1 Q Did you tell the FBI that the management of the

2 Diamond Hotel management possessed that videotape?

3 A Could you repeat that, please?

4 Q Did you tell the FBI that the management of

5 Manilla Diamond Hotel possess a videotape?

6 A I don't know if I told them that I saw a

7 videotape of this, that there is a gentleman facing back

8 that was not discernible of a person that was going out of

9 this building. I don't know.

10 Q Well, did you tell them that you observed or you

11 were shown the videotape, and you were able to identify that

12 person?

13 A I don't remember, sir, and I don't know. What I

14 know is our operation came out negative.

15 DEFENDANT YOUSEF: Your Honor, may I have witness

16 to be shown 3523F. The second page, the second paragraph.


18 Q Now, sir, did you tell the FBI that you were

19 shown the tape and the tape depicts the person who was shown

20 on the tape?

21 THE INTERPRETER: Could you repeat that for the

22 interpreter?

23 Q Did you tell the FBI that you were shown a

24 videotape and the videotape depicts the person or the

25 identity of the person who was on the videotape?

2219


2 THE COURT: I don't understand the question.

3 Redo it.

4 Q Sir, did you tell the FBI that you were shown the

5 tape which was possessed by the Manilla Diamond Hotel

6 management?

7 A Yes, I told them that.

8 Q And did you tell them that the person whose known

9 as Naji Haddad was depicted in the tape?

10 A This was information that was given to us by the

11 lady guard that worked in the hotel regarding the tape.

12 Q Sir, my question is, did you --

13 MR. GREENFIELD: Your Honor, I ask the answer be

14 stricken as nonresponsive.

15 THE COURT: No, I'll permit it to stand. Next

16 question.

17 Q Did you tell the FBI that when you saw the tape

18 it depicted the identity of the person who was shown there

19 known as Naji Haddad?


21 THE COURT: Yes. That is sustained.

22 Q Now, sir, what happened after the investigation

23 or the surveillance which you conducted in the Diamond

24 Hotel?

25 A Sir, that particular investigation came out

2220

1 negative. Nothing was found. Nobody came out of that room.

2 So nothing happened at all.

3 Q Did you tell the FBI that the result of that

4 investigation was negative?

5 A I don't remember if I told them that or not.

6 Q Now, sir, was it your testimony that the people

7 who you were going to conduct surveillance on them were

8 allegedly the occupants of room number 603?

9 A Could you clarify that for me? What do you mean

10 by that?

11 Q When you first were instructed to conduct

12 surveillance on the Diamond Hotel, was it your understanding

13 that the individuals who you were going to conduct

14 surveillance on them were allegedly the occupants of room

15 number 603 in the Josefa building?

16 MR. SNELL: Objection. Asked and answered.

17 THE COURT: Were the residents of? Yes,

18 sustained.

19 Q Sir, did anyone ask you or order you to arrest

20 those individuals?

21 THE COURT: Which individuals?

22 Q The ones who were you conducted surveillance on

23 them in the Diamond Hotel?


25 THE COURT: He just said he never saw anybody.

2221

1 The whole thing was negative. Next question.


3 brief moment?

4 THE COURT: Yes.

5 (Pause)

6 DEFENDANT YOUSEF: I have no further questions.

7 THE COURT: All right. Mr. Udell.

8 CROSS-EXAMINATION

9 BY MR. UDELL:

10 Q Mr. Cruz, you're familiar with the City of

11 Manilla, are you not?

12 A Yes, sir.

13 Q And you know where the Malate police station is?

14 A Yes, it's also at the President Quirino Avenue.

15 Q It's near the Dona Josefa Apartments; is that

16 correct?

17 A Yes, sir.

18 Q But you know the difference between the Manilla,

19 Malate police station and Dona Josefa apartments, do you

20 not?

21 A What do you mean the difference?

22 Q They're not the same building, are they?


24 Q So you know, thirty years experience as a police

25 officer, that when you were summoned on January 7th, the

2222

1 morning of January 7th to go some place, you know where you

2 went; is that correct?

3 A Yes, sir.

4 Q And today and yesterday you're telling us that

5 you went directly to the Dona Josefa apartments; is that

6 right?

7 A Yes, sir. Mr. Ramilo told me where the place

8 was.

9 Q But did you tell other people at other times --

10 THE INTERPRETER: Would you repeat that for me?

11 Q On other occasions did you say that when you were

12 summoned from your home on the early morning hours of

13 January 7th you went to the Malate police station?

14 A I say nothing of that sort, sir.

15 Q Well, in fact did you make a report on January

16 7th, 1995?

17 A Yes, sir.

18 Q Now, it has been your testimony yesterday and

19 today that you went to the Dona Josefa apartments directly

20 and you went there by yourself?

21 A That is the truth, sir.

22 Q You are an EOD technician?

23 A Yes, sir.

24 Q Sergeant Ramilo was an EOD technician?


2223

1 Q Sergeant Ramilo's partner is an EOD technician?


3 Q Well, did you say in your report that you made on

4 January 7, 1995, that the EOD, these EOD technicians also

5 accompanied the Malate police station operatives to room 603

6 of the apartment where the alleged explosive fire occurred?

7 Did you say that in your report?

8 Perhaps you'd like to look at the last paragraph

9 on the second page.


11 THE INTERPRETER: Would you repeat the question,

12 please?

13 Q Did you in your report of January 7, 1995, say,

14 the very last paragraph, these EOD technicians, of which you

15 are, claim to be one, also accompanied the Malate police

16 station operatives to room 603 of the apartment where the

17 alleged explosion fire occurred?

18 MR. SNELL: Objection, unless there is an offer.

19 THE COURT: Yes. Are you going to offer 3523C?

20 MR. UDELL: Does the witness have a copy of 3523B

21 in front of him?

22 THE COURT: Is that question directed to me?

23 Q I would ask, do you have a copy of 3523 in front

24 of you?

25 MR. UDELL: Forgive me, your Honor?

2224

1 A Yes.

2 Q And looking at page 2, is that your signature?

3 A Yes.

4 Q Do you recognize that as being the report that

5 you filed on January 7, 1995?

6 A Yes, sir.

7 Q And do you recognize that as being the report

8 which contained the false information which you provided on

9 January 7, 1995?

10 A Yes, sir, that portion of how I came about the

11 attache case is false. The rest, the contents of what I had

12 taken as an inventory from room 603 is correct.

13 Q Do you recognize this report as being the report

14 that contains false information?

15 MR. SNELL: Objection, asked and answered.

16 THE COURT: Yes. Ask the next question.

17 MR. UDELL: I'll offer it in evidence.

18 MR. SNELL: No objection.

19 THE COURT: Okay.

20 (Government Exhibit 3523B received in evidence)

21 Q Do you understand the difference between taking

22 an attache case and putting things inside of it and having

23 an attache case handed to you with items already inside of

24 it?

25 A Yes, sir, I know.

2225

1 Q Did you upon arriving at the Dona Josefa

2 apartments meet other police officers who handed you a

3 briefcase which smelled of an explosive material before you

4 ever got to room 603?

5 A Nothing of that sort, sir. That is not the

6 truth.

7 Q So it is not the truth either that you were

8 handed a briefcase outside of the apartment before you got

9 to room 603 which contained two pipe bombs and a single

10 firing mechanism?

11 A Yes, sir, that is what's contained on my report

12 and that is wrong, that is false, and the truth is what I

13 tell you today, that I was the person that collected the

14 items that were put inside the attache case.

15 Q Well, when you put these false items in the

16 report did you know they were false?



19 MR. UDELL: Your Honor, I don't mean to

20 interrupt, but I think the question should be read back

21 because I think it calls for a yes or no answer. It seems

22 like there's a lengthy dialogue going on.

23 MR. SNELL: Your Honor, I object to that.

24 THE COURT: Yes. All right, ladies and

25 gentlemen, we'll take our break.

2226


2 present)

3 THE COURT: Counselor, a dialogue is a talk

4 between two people where each one of them participates.

5 Here the only one talking was the witness who was telling

6 the interpreter what the answer to your question was.

7 MR. UDELL: Ed my question was, when you --

8 THE COURT: You didn't ask it as a yes or no

9 question. You left it open.

10 MR. UDELL: I believe the question was, when you

11 submitted this, provided this information did you know it

12 was false? And your Honor had started this morning by

13 telling us that this case is going on too long. I don't

14 disagree, but we are not attempting, nobody is attempting to

15 waste time here. And what I'm trying to do is get directly

16 from this witness, perhaps to save --

17 THE COURT: Then why don't you ask the question,

18 answer the question yes or no, and then ask the question.

19 MR. UDELL: That's been tried. That's been tried

20 by me with other witnesses. That's been tried with other

21 counsel. It does not seem to happen, but I will try that

22 from now.

23 THE COURT: Thank you, if you would, please.

24 (Recess)


2227

1 JOSE L. CRUZ, resumed through the interpreter.


3 CROSS-EXAMINATION(Continued)

4 BY MR. UDELL:

5 Q Sir, when you made your report on January 7th,

6 1995, at that time you represented that all of the

7 information contained therein was true; is that correct?

8 A No, sir, that portion where I came in touch with

9 the attache case is not true.

10 Q But when you made the report out did you

11 represent that it was true?

12 A Those were the instructions that I received, sir.

13 Q Again, sir, when you made the report out on

14 January 7th did you represent that the information contained

15 therein was true?

16 A Sir, that portion how I came about the attache

17 case is not true. The rest of the report is true.

18 Q Did you represent on January 7th when you made

19 the report out that some of it was true and some of it was

20 not true, or did you represent that it was all true?

21 A I prepared that report on the orders of Major

22 Angeles.

23 Q And on the orders of Major Angeles did you

24 represent in the report that it contained false information

25 or did you represent that it was true totally?

2228

1 A Sir, that particular portion with regards to the

2 attache case is false and the rest of it is true.

3 Q Sir, is it fair to say -- withdraw that.

4 When you made your application or your deposition

5 for the search warrant which is 3523H in evidence, on

6 January 7th, did you represent and swear that all the

7 information contained therein was true?

8 A Sir, I wasn't the person that applied for the

9 warrant. I was only a deponent, and as a deponent I told

10 them the truth.

11 MR. UDELL: Ed may the witness have a copy of

12 3523H in front, if that's possible?


14 Q Now, will you look at the first line that says I,

15 and does it say, I, Inspector Hose Latura Cruz, Junior,

16 after having been duly sworn testify as follows? So did you

17 swear then to tell the truth in that deposition?

18 A Yes, sir.

19 Q Now, in the deposition does it say, after being

20 duly sworn I swear to tell some truth, and not other truth?



23 Q Anything in there about you swearing to tell

24 partial truth?


2229


2 Q Did you appear before the Honorable Ernesto A..

3 Reyes, a Justice of the Court of the Philippines on January

4 7th and did you swear to tell the truth?

5 A Yes, sir, here in my deposition.

6 Q And did you represent to him, Ernesto Reyes, the

7 Honorable, that you were telling the truth?

8 A Yes, sir, this particular document I signed this

9 in front of him.

10 Q After you signed the document did you give

11 testimony before him?

12 A Yes, sir, he asked me some questions.

13 Q And did he ask you some questions about the

14 contents of the attache case?

15 A Yes, sir, I told him what the contents of it

16 were.

17 Q And did he ask you how you came about or how you

18 came upon the attache case?

19 A I don't think so that he asked me that question.

20 Q Did you represent to him that the contents of the

21 attache case as you presented them to him were the same as

22 they were when you found the attache case?

23 A Could you explain to me what you mean by that?

24 Q Did you tell Judge Reyes that you found the

25 attache case with the Casio and the pipes and the bombs

2230

1 inside?

2 A Perhaps I had mentioned that to him. Perhaps I

3 had told him that this was turned over to me.

4 Q And that was the same day that you had recovered

5 this attache case; is that correct?

6 A Yes, that is the same date, sir.

7 Q So what you are saying is perhaps you lied under

8 oath to Judge Reyes on January 7th; is that correct?

9 A Yes, sir, that portion where the subject of how I

10 came about the attache case is a lie.

11 Q And did you then file a followup report on

12 January the 8th?

13 A Yes, I did with Major Angeles.

14 Q And in that report did you represent how you came

15 upon the attache case?

16 A Yes, on the first portion I stuck to the same

17 story.

18 Q And did you -- and the story you stuck to was

19 false; is that correct?

20 A Yes, the portion of how I came about the attache

21 case is false, sir.

22 Q But at that time you represented it to be true;

23 is that correct?


25 Q Well, you didn't say in the report, caution, this

2231

1 may be false. You made a report representing it to be true;

2 is that correct?

3 A Yes, sir, I just followed through with the

4 instruction that was given to me, that particular portion of

5 the report is false, and this was what I was instructed to

6 do, so I followed through until the following day with the

7 story that I was asked to do.

8 Q And then did you talk to Mr. Walbert of the FAA

9 sometime later?


11 Q And did you tell, did you stick to the story with

12 Mr. Walbert?


14 Q All right. And did Mr. Walbert then invite you

15 to speak to Ms. Wassen and Agent Pellegrino and some other

16 officials of the United States sometime thereafter?

17 A Yes, Mr. Walbert extended to me an invitation.

18 Q And you accepted that invitation; is that

19 correct?

20 A I did accept the invitation, sir, with the

21 consent of Major Angeles.

22 Q And did Major Angeles tell you stick to the story

23 before you went to talk to the FBI?

24 A Sir, that was not an interview. That was a

25 situation where they processed the evidence.

2232

1 Q And did you tell the FBI that you were handed a

2 briefcase downstairs before you ever went upstairs to room

3 603 and the briefcase smelled, and the briefcase contained

4 two pipe bombs and a firing mechanism?

5 A I did tell them that story, but I don't remember

6 where I told them this, whether it come from me or the

7 offices of the embassy.

8 Q Did you tell them that story?


10 THE COURT: He just said yes. Next question.

11 Q Now, did you talk to the FBI in the Philippines

12 after this first time?

13 A Yes, my first interview was at the Camp Crame.

14 Q At any time in the Philippines did you tell the

15 FBI that the story about how you obtained the attache case

16 and the contents, and what was in it, when you first

17 obtained it was false?

18 A Yes, sir, I did tell them what was false

19 situation because I thought that at that time it would come

20 out easier.

21 Q Did you tell them that it was a false situation


23 A Yes, sir, I lied to them while they were in the

24 Philippines and I take responsibility for what I had done.

25 When it happened in the Philippines I stuck to my story and

2233

1 I found that I needed to tell the truth at this time.

2 Q Did they give you this commendation in the

3 Philippines?

4 A Yes, sir.

5 Q When you accepted the commendation did you say,

6 well, I got to tell you fellows something, I've been lying

7 all along? Did you do that?

8 A Sir, all of the evidence that I have collected

9 with regards to this case is I have collected it in the true

10 fashion that I said. With regards to how I came about the

11 attache case, sir, that is false and I accept that today.

12 Q Did you tell them when they gave you the

13 commendation that you had lied to a judge?

14 A Sir, I accepted this commendation in a very

15 hushed manner, and I don't know anything about how this came

16 about that they wanted to give me this commendation.

17 Q When you were in room 603 on January 7th there

18 were certain officials there, Gen. Canson, Major Bautista,

19 Gen. Ebdane, and Col. Razon; is that correct?

20 A Yes, sir, they arrived there.

21 Q And this was before you got this order from Major

22 Angeles to falsify your report; is that correct?

23 A Sir, they arrived there in the early part of

24 January 7th and we have not applied for a warrant.

25 Q And did they give you an instruction at that

2234

1 time?

2 A The instructions given to us were not to touch

3 anything at that time and that we were to apply for a

4 warrant.

5 Q And this was before you got this order, again,

6 this is before you got this order from Major Angeles. Is

7 this correct?


9 Q Now, how long after you got this instruction not

10 to touch anything did you touch this attache case?

11 A That order was sort of a general order to

12 everyone that was there, that as much as possible to

13 preserve the things that were there.

14 Q Well, did you testify in this court on July 11,

15 1996, last week --

16 THE INTERPRETER: Excuse me?

17 Q Did you testify in this court on July 11, 1996?

18 THE COURT: Day?

19 A Is that a Wednesday? Is that a Thursday?

20 Q Yes.

21 A Yes.

22 Q And did you say under oath --


24 Q Page 2103, I'm reading the answer on 24 and 25,

25 your Honor. Did you say:

2235

1 "At that time they also thought a computer that

2 was shown down by Mr. Ramilo and Mr. Mandigma, Gen. Razon

3 instructed us not to touch anything."

4 Did you say that?

5 A Gen. Razon did not give me any instruction, sir.

6 Are you talking about Col. Razon?

7 Q Didn't did you give that answer on January -- on

8 July 11, 1996?

9 THE COURT: I'm at a bit of a loss, counselor,

10 are you talking about 2103, line 5?

11 MR. UDELL: 24 and 25 going on to 2104, line 1.

12 THE COURT: Okay.

13 Q Sir, do you recall making that statement on July

14 11th?

15 A Yes, I testified here on Thursday, sir.

16 Q Do you recall on Thursday, July 11th, being asked

17 this question and giving this answer on 2104, line 7 to line

18 10?

19 "Q What happened next after the officer

20 looked around the apartment?

21 "A We were instructed not to touch anything

22 and I was instructed to apply for a warrant."

23 Were you asked that question and did you give

24 that answer?

25 A I don't understand what you're saying, sir.

2236

1 Q Did you testify here last Thursday --


3 THE COURT: Sustained. Come on, next question.

4 Q After you picked up the attache case did you

5 touch a piece of pipe?

6 A Yes, I collected it, sir.

7 Q And did you collect other objects?

8 A Yes, sir.

9 Q And did Sgt. Ramilo hand you a bag?

10 A No, sir, that's a folder.

11 Q Did he hand you a folder then?

12 A A folder, yes, sir.

13 Q And did that folder contain Arabic writing on it?

14 A It looks like it did.

15 Q And did you place that folder with Arabic writing

16 inside that attache case?

17 A Yes, sir. I put it inside the attache case which

18 I used as a container for the things that I collected.

19 Q And did you represent in your report, which is

20 3523B in evidence, that that folder was found inside the

21 attache case? It might help you to look at page 2,

22 paragraph, the first line on page, on the second page of the

23 report number 4 in the list of things you represented that

24 was inside the attache case.

25 A Yes, sir, I reflected in the report what were the

2237

1 contents of the attache case.

2 Q And did you represent in that report that attache

3 case was given to you by Capt. Fariscal?

4 A Yes, sir, that is the version that we have

5 written in this report.

6 Q And when you say "we," who do you mean?

7 A Myself and Major Angeles, because I was the one

8 that had ordered.

9 Q Well, did you direct Sgt. Ramilo to make a report

10 also?

11 A No, sir, I told Mr. Ramilo that I was to be the

12 one to prepare the report.

13 Q Were you his superior at that time?

14 A Yes, sir, I was.

15 Q Did you tell Sgt. Ramilo the instructions you got

16 from Major Angeles?

17 A Yes, sir, I briefed him about the situation.

18 Q Did you brief him that he was to say that he went

19 to the western precinct on January 7th and was given a

20 briefcase by Capt. Fariscal?



23 Q Did you tell Sgt. Ramilo to write certain things

24 in a report?

25 A Sir, my instructions with him was that he should

2238

1 not prepare the report; that I would be the one to prepare a

2 report. If he, whether he prepared the report or not, I

3 don't know.

4 Q So it's your testimony that you did not give him

5 a list of things to put in the report?

6 A Sir, I don't remember if I gave him a copy of my

7 report. And the other thing that I should mention to you

8 is, it was the two of us that did the inventory. He was

9 right in front of me when we were doing the inventory.

10 Q You don't remember that you gave him a copy of

11 your report, is that your testimony?

12 A Yes, sir, I don't know, because the instructions

13 were not to prepare a report.

14 Q You were filing a false document; is that

15 correct?



18 Q You don't remember whether you showed this false

19 document to a person to whom you are superior?


21 MR. UDELL: May I have the witness shown a copy

22 of 3522B in evidence?

23 THE COURT: 3522B.

24 MR. UDELL: If it's not available I have a copy.


2239

1 Q You read English, do you not, sir?

2 A I do, sir.

3 Q You filed your report in English?

4 A I did not prepare this particular report, sir.

5 Q I ask to put also in front of you 3523B, your

6 report.

7 A Yes, sir.

8 Q Now, sir, tell me if I'm reading correctly when I

9 read the first two lines in your report which says:

10 About 070130H January, 1995, Police Senior

11 Inspector Aida Fariscal of the Malate police station

12 reported to this office."

13 Have I read that correctly?

14 A Yes.

15 Q Now, look at 3522B which is in evidence. Now,

16 tell me again, starting from the first line, the first two

17 lines, tell me if I've read this correctly.

18 "At or about 070130H January, 1995, Senior

19 Inspector Aida Fariscal of police station number 9WPDCPNP

20 called up this office."

21 Have I read that correct?

22 A Yes.

23 Q Now, would you look at the second paragraph of

24 this report, halfway into the second paragraph of your

25 report, 3523B, and starting on the second line you see the

2240

1 word operatives?

2 A Yes.

3 Q Now, am I reading correctly when I state it says:

4 "Operatives from the Malate police station

5 responded and noticed during the confusion a foreign male

6 national hurriedly left the place and in so doing left

7 behind a brown attache case which they suspected might

8 contain a bomb."

9 Is that what you put in your report?

10 A Yes, sir.

11 Q Now I'm going to ask you to look at 3522B which

12 may I state for the record is Sgt. Ramilo's report. Again

13 looking at the --

14 MR. SNELL: I object to that, your Honor.

15 THE COURT: Yes. This is all in evidence. You

16 can talk about it in summation. Why ask the man, am I

17 reading it correctly? Talk about it in summation if you

18 want to. What's the question you want to ask of this man?

19 Q Are you telling us that you did not tell Sgt.

20 Ramilo what to write in his report?

21 A Sir, I had told him about the report that I was

22 going to prepare and the subject matter of how it was going

23 to be prepared. Whether or not he was able to get a copy of

24 my report I don't know. Whether or not I gave him a copy of

25 my report, I cannot tell you. I don't know.

2241

1 Q You just said you don't remember if you gave him

2 a copy or not?


4 THE COURT: Yes. Come on.

5 Q Are you telling us that when you put in your

6 report --


8 Q -- that Ms. Fariscal, Capt. Fariscal recovered

9 the suitcase because it was left by a foreign male national

10 who hurriedly left the place, and Sgt. Ramilo put in his

11 report --


13 THE COURT: Sustained. Next question.

14 Q Are you telling us it's coincidence that Sgt.

15 Ramilo used the exact same words in his report that you used

16 in yours?

17 THE COURT: This is all argument. I don't

18 understand what you're doing. Ask questions, please.

19 MR. UDELL: At this time, your Honor, I'd like

20 3522B and 3523B be passed to the jury.

21 THE COURT: Sure. They're in evidence.

22 (Government's Exhibits 3522B and 3523B passed to

23 the jury)

24 THE COURT: Do you have any other questions?

25 MR. UDELL: Yes, I do, your Honor. We can do

2242

1 this later if you want, and I'll continue.

2 (Pause)

3 THE COURT: Ladies and gentlemen, I'm going to

4 get you 18 copies so each one will have your own, you can

5 read it at the same time.

6 Go ahead, counsel, continue on. They can read it

7 later.

8 Q Did there come a time that you took this attache

9 case back to your office after leaving 603?

10 A Yes, sir, that morning.

11 Q And then were you instructed to bring it to the

12 Presidential group?

13 A Yes, that morning around 8 or 9 in the morning.

14 Q Now, did you bring it to the Presidential group?

15 A Yes, I did, sir.

16 Q Now, is it fair to say there were members of the

17 Presidential group who were in the apartment at the time

18 that you were putting these things in the attache case?

19 A Sir, I can not tell you who those persons were.

20 I didn't recognize them.

21 Q Well, was Col. Razon a member of the Presidential

22 Group?

23 A Yes, I was told that this Col. Razon was from the

24 Presidential security group, but I didn't remember his face,

25 sir.

2243

1 Q Well, do you remember his face as being in the

2 apartment in 603?

3 A Yes, I was told that that was Gen. Razon who

4 arrived together with -- that was Col. Razon that arrived

5 with Gen. Canson.

6 Q Now, when you left -- did you leave the attache

7 case with the Presidential group?

8 A Yes, that was during a later part of the morning,

9 sir.

10 Q Did you see them videotaping the contents of the

11 attache case at that time?

12 A Sir, that was after lunchtime around noon time

13 when they returned to me the attache case. Before they

14 returned it to me they took a videotape.

15 Q All right. So between the time you left it and

16 the time that you went back to get it, you went back to your

17 office; is that correct?

18 A Yes, sir.

19 Q And it was during that time, sir, was it not,

20 that you got this instruction from Major Angeles that you

21 were going to falsify the report; is that correct?

22 A Yes, sir.

23 Q And then after you got the instruction that there

24 was going to be a false statement as to how this, the

25 contents of this attache case was assembled, you then went

2244

1 back to the Presidential security group and whoever else was

2 there to recover the attache case and its contents; is that

3 correct?

4 A Could you repeat that, please?

5 (Record read)

6 A Correct, sir.

7 Q So now at this time you understood that the story

8 was going to be that the attache case and the contents there

9 were recovered in the manner in which you presented them; is

10 that correct?


12 MR. UDELL: I withdraw that.

13 Q You understood at this point that there was going

14 to be a false statement with regard to the contents of the

15 attache case; is that correct?



18 Q Was it at this point after you received this

19 instruction from Major Angeles and went back to the

20 Presidential security group that you now saw them

21 videotaping the contents of the attache case?

22 A Yes.

23 Q And that's the first time you saw them

24 videotaping; is that correct?

25 A The what, the attache case?

2245

1 Q Yes.

2 A Yes.

3 Q So before the story changes nobody videotapes the

4 contents. After the story changes they start videotaping;

5 is that correct?

6 A Sir, when they were doing that videotape I had

7 already prepared my report.

8 MR. UDELL: Ed may the witness be shown a

9 photograph, 351A, if that's possible the contents of the

10 attache case?

11 (351A handed to witness)

12 Q Is that the way the inside of the attache case

13 looked after you put the things in it that you said you put

14 in it?

15 A Not everything that I had put in here is shown in

16 this particular photo, just portions of it.

17 Q But the things that you had put in there are

18 showing in that photo; is that correct?



21 Q After they finished videotaping did you then

22 again take control of the attache case?

23 A Yes, sir, it was returned to me.

24 Q And did you again go back to your office?

25 A Yes, I did, sir.

2246

1 Q And at that time were plans made to apply for

2 this search warrant?

3 A Yes, the papers were being processed.

4 Q And Major Angeles, he was the person who was

5 making the application for the warrant; is that correct?


7 THE COURT: Yes. I think it's been asked and

8 answered a couple of times. Yes. Next question.

9 Q Were you one of the persons who made a deposition

10 with regard to this warrant?

11 MR. SNELL: Same objection.


13 Q Did you state -- withdraw that.

14 In this application for the warrant did you, was

15 the name of the subjects of this warrant put in?

16 A Sir, I don't know. Major Angeles was the one

17 that applied for the warrant.

18 Q Have you had experience with applying for

19 warrants?

20 A Yes, sir.

21 Q And when you apply for a warrant do you list the

22 name of the case or the name of the subject in the warrant,

23 if you know the name?

24 A Yes, sir.

25 Q And is it fair to say that generally a police

2247

1 officer will know a person's name by asking the person that

2 name?



5 Q What does the term or the name John Doe mean to

6 you?

7 A Sir, I was not the person that applied for the

8 warrant.

9 Q Have you ever -- you've been a police officer for

10 thirty years. Have you ever heard the term, the name John

11 Doe?



14 Q Is it fair to say that when the term John Doe is

15 used you're referring to a person whose name you do not

16 know?


18 THE COURT: Yes.

19 Q Would you refer, sir, to 3523H. Does the

20 document state at the very top People of the Philippines

21 plaintiff, versus Naji Haidah Haddad and John Doe?


23 THE COURT: It's in evidence, isn't it? I

24 believe it's in evidence.

25 MR. UDELL: It's in evidence.

2248

1 THE COURT: Yes, okay. Next question.

2 Q Does that document contain your signature on the

3 bottom?

4 MR. SNELL: Objection. Asked and answered.

5 THE COURT: Ask him.

6 Q Did you indicate in your last answer or your next

7 to last answer when you were asked do you know who are the

8 person or persons who have control of the above premises,

9 there are three persons inside the room?


11 THE COURT: It's in there. It's in evidence

12 already.

13 MR. UDELL: Judge, might this be a good time for

14 a break?

15 THE COURT: Yes. Sure. After lunch I'll have

16 those copies for you.

17 (Jury, witness and interpreter not present)


19

20

21

22

23

24

25

2249

1 THE COURT: David, you want to make an

2 application? Is it the same one?

3 MR. GREENFIELD: The same one, your Honor, yes.

4 Particularly there was the question that led to it. It was

5 the witness said withdrawn.

6 The question said to the witness: There was no

7 reason for you to lie, which opens the door once more to the

8 answer of national security and the Pope's safety. The

9 Court struck that answer, but it's like the pink elephant,

10 you can't strike it. And we're being battered here with the

11 theory of prosecution that we weren't told about, and now

12 it's being brought out by our codefendants.

13 THE COURT: Yes. Same ruling. Okay. 2 o'clock.



16

17

18

19

20

21

22

23

24

25

2250

1 AFTERNOON SESSION

2 2:00 p.m.

3 JOSE L. CRUZ, JR., resumed.

4 (Jury present)

5 THE COURT: You will recall, ladies and

6 gentlemen, I asked one of my law clerks and court clerk to

7 make copies before? Only took an hour and a half. Pass

8 them out. Everybody should have two separate documents, one

9 being 3523B and the other being 3522, I think it is B again.

10 (Pause)

11 THE COURT: OK, guys? All right. Go ahead,

12 Mr. Udell.

13 CROSS-EXAMINATION Continued

14 BY MR. UDELL:

15 Q Mr. Cruz, the report you made on January 7, that

16 was for the ADDI, is that correct?

17 A This is addressed to Major Angeles.

18 Q What does ADDI stand for?

19 A Assistant district director for intelligence.

20 Q Is that Major Angeles?

21 A Yes, sir.

22 Q So what you are saying is, Major Angeles told you

23 what to put into a report that you made to him?

24 A Yes, sir, with that particular portion regarding

25 the attache case and how I came about it.

2251

1 Q And Major Angeles said you have to make a report

2 to me, so you falsify in this way and then you give it to me

3 as your report.

4 A I told you that he told me that I should stick to

5 this version, and so this is the report that I had prepared.

6 Q Was it your expectation then that if this report

7 goes to Major Angeles and Major Angeles is the one who

8 initiated this fabrication, that that report would stay with

9 Major Angeles and no one else would see?


11 THE COURT: I will permit that.

12 A He didn't say anything like that. My

13 instructions were to write the report based on the version

14 that I had stuck to, because we were pressed for time. In

15 four days the Pope was due to arrive, and it was a very

16 tricky situation.

17 MR. UDELL: May I have that last part of the

18 answer stricken as nonresponsive.

19 THE COURT: Do you want to read it back, Martha.

20 (Record read)

21 THE COURT: That last part, starting "In four

22 days," forget that. Go ahead.

23 Q Did Major Angeles instruct you to indicate in the

24 report on the second page that you were going to submit this

25 filler, the substance in what you have described as the

2252

1 suspicious device, to the NBI for analysis?


3 THE COURT: No.

4 THE INTERPRETER: Please repeat it for the

5 interpreter.

6 Q Did Major Angeles instruct you to put in your

7 report that you were intending to submit this explosive

8 filler to the NBI for analysis?

9 A Sir, that was not instructed to me. This is part

10 of my SOP.

11 Q What is the NBI?

12 A That is the National Bureau of Investigation.

13 Q Did you submit this filler to the National Bureau

14 of Investigation for analysis?

15 A I am not quite sure whether I was able to submit

16 this to the NBI, because the FBI had already processed it.

17 Q Did you stick to your story that Major Angeles

18 gave you for the entire time that you were in the

19 Philippines?

20 A Yes, sir. This is the story that I stuck to

21 while I was in the Philippines, because that was the story

22 that I felt it would be easier for them to understand, and

23 that I should stick to that.

24 Q Was one of the people who you mentioned in your

25 report Captain Ada Fariscal?

2253

1 THE COURT: Do you object?

2 MR. SNELL: Yes, I do.


4 Q At any time when you spoke to the FBI in the

5 Philippines, did they confront you with your report?

6 A I am not quite sure and I don't remember whether

7 I gave a copy of my report to the FBI, sir.

8 Q Did you tell the FBI that when you spoke to them

9 on February 16, did you tell them that when you got to the

10 building of the Dona Josefa you were handed this attache

11 case by some other police officer?


13 THE COURT: Yes. It has been asked and answered.

14 Q At any time did the FBI confront you with

15 anything -- at any time did the FBI in the Philippines

16 confront you with anything that is contrary to the statement

17 that you were telling them?

18 A No, sir, I just gave them the version that was

19 written in my report.

20 Q When did you learn that you were going to be

21 asked to go to the United States?

22 A In the month of May this year, sir.

23 Q Did you learn that from anyone in the United

24 States government or did you learn that from Major Angeles?

25 A I received a copy of a letter, sir.

2254

1 Q Do you recall who signed the letter?

2 A I believe it was an attorney from the Department

3 of Justice here in the United States of America.

4 Q Did you take this letter or did you inform Major

5 Angeles of this letter?


7 Q After receiving the letter and while you were

8 still in the Philippines, did you speak to anyone from the

9 United States Department of Justice or from the FBI?

10 A Yes, sir.

11 Q Did they at that time tell you about -- withdraw

12 that.

13 Did they at that time discuss with you the

14 arrangements that were going to be made which you testified

15 to on direct examination?

16 A Sir, that was contained in the letter.

17 Q And these arrangements allowed you to come to the

18 United States and to bring certain members of your family,

19 is that correct?

20 A Sir, that is a part of the plan and the proposal,

21 and it has not happened.

22 Q When you received the letter, did you contact

23 anyone in the Department of Justice to tell them that part

24 of the story that you told was untrue?

25 A Sir, when I arrived here.

2255

1 Q You arrived here in June?

2 A Yes, sir, I did.

3 Q Was that the early part of June, around June 6 or

4 7?

5 A Yes, sir, within a few days after I arrived I

6 told them the truth.

7 Q Did you arrive together with Sergeant Ramilo?

8 A Yes, sir, we arrived at the same time here in the

9 United States.

10 Q Did there come a time when representatives of the

11 government began to talk to you about your testimony, here

12 in the United States?

13 A Yes, we had a briefing.

14 Q Did they confront you at that time with your

15 report, the one that is dated January 7?

16 A In the briefing they give us a summary of the

17 reports that we had prepared in the Philippines.

18 Q Did you bring the report with you when you came

19 here to the United States?

20 A Yes, I had a copy, sir.

21 Q You personally brought a copy with you?

22 A Yes, sir.

23 Q And you showed it to them?

24 A Sir, they had a copy of their own.

25 Q Were you aware of the fact that they had a copy?

2256

1 A From what I know, I had a copy, because I

2 submitted that.

3 Q To ADDI, is that correct?

4 A To the ADDI, sir, and I don't know if I furnished

5 a copy to the FBI, except I remember that they did get a

6 copy from me.

7 Q And as you suggest, ADDI is Major Angeles?


9 Q Is it not a fact, sir, that it was when the

10 government confronted you with your report that you decided

11 to change your story?

12 A No, sir, we have been having talks a long time

13 ago, even way back when I was in the Philippines.

14 Q Did the government ever tell you before you

15 changed your story that they had Sergeant Ramilo's report

16 also?

17 A They did not tell me anything of that nature,

18 sir.

19 Q But you talked to Sergeant Ramilo when you came

20 to this country, is that right?

21 A Sir, when we arrived here in the United States a

22 few days later, Sergeant Ramilo and myself had a talk, and

23 it was during that talk that we decided amongst ourselves

24 that we will be telling the truth as to what had happened

25 regarding the attache case. This was an opportunity for

2257

1 myself and for him to correct the wrong that we have done,

2 and we realize that today.

3 Q The wrong you did was in January of 1995, is that

4 correct?

5 A You are correct, sir.

6 Q You continued the wrong for 18 months, is that

7 correct?


9 Q You were willing to swear in front of a judge in

10 your country as to this wrong, is that correct?

11 A Yes, sir, I did, with that portion of how we

12 recovered the attache case.

13 Q You were willing to accept an accomodation from

14 this country without telling them about the wrong you did,

15 is that correct?

16 A Would you clarify that for me.

17 Q Is it fair to say that when you received this

18 accomodation you did not break down and tell the

19 accomodators that you did wrong, that you lied?

20 MR. SNELL: Objection to form.

21 THE COURT: Yes.

22 You mean commendation, not accomodation.

23 Q Is it fair to say that when you received this

24 commendation, you did not break down and inform people that

25 were awarding you such that you had been lying?

2258

1 MR. SNELL: Object.

2 THE INTERPRETER: Could I clarify? Is it

3 commendation or accommodation?

4 MR. UDELL: Commendation.

5 A Sir, at that time I didn't know that I was going

6 to receive a commendation. We were invited to their offices

7 and they handed us the commendation.

8 Q When was that?

9 A Around the month of February 1995.

10 Q You were invited to come to this country in May.

11 Did you tell them in May when you got this letter that you

12 had been lying?



15 Q When you accepted, when you made the agreement to

16 have your father taken care of to come to this country, did

17 you tell them then that you had been lying?



20 Q Isn't it a fact, sir, that the reason you changed

21 your story, the reason you changed your story when you got

22 here is that you got nervous that they were going to find

23 out the truth?

24 A No, sir, that is not the reason. The reason why

25 I tell the truth today while I am here is because this is my

2259

1 opportunity to correct the wrong that I have done.

2 Q You told them, you told the FBI that when you got

3 the call in the morning of February, in the morning of

4 July -- I am sorry, I am wrong -- on the morning of January

5 7, you went directly to the Dona Josefa Apartments, is that

6 correct?


8 THE COURT: Yes.

9 Q Did you learn that Sergeant Ramilo had told them

10 that you went to the 9th precinct, to Malate precinct?

11 A No, sir, I did not go to the 9th precinct. I

12 headed directly to the Josefa Apartments.

13 Q Would you look at 3522B.

14 MR. KULCSAR: Your Honor, could we have the last

15 answer stricken as not responsive and hopefully --

16 THE COURT: No, no, sit down. You will have

17 buttons.

18 Q Would you look at 3255B in evidence.

19 MR. SNELL: I am sorry. I think it is 3522.

20 MR. UDELL: Sorry, 3522B in evidence.

21 THE WITNESS: I don't have a copy.

22 (Pause)

23 A Sir, this particular document is not my report.

24 Q Would you look at the top paragraph of it.

25 A Yes, I have read it, sir.

2260

1 Q This is Sergeant Ramilo's report, is it not?


3 THE COURT: No, I will let him answer that. If

4 you know.

5 A It is possible that he prepared this report.

6 Q And Sergeant Ramilo told them you went to the 9th

7 precinct, is that correct?


9 Q If you know.



12 Q Is it not a fact, sir, that when you and Sergeant

13 Ramilo began talking, you became nervous because your

14 stories were in conflict?

15 A Sir, Mr. Ramilo and myself discussed my intention

16 that we were going to tell the truth.

17 Q Do you know these two gentlemen here, Mr. Snell

18 and Mr. Garcia, to be employees of the federal government,

19 United States government?

20 A Yes, sir.

21 Q And you know Agent Pellegrino to be an employee

22 of the United States government?

23 A Yes, sir.

24 Q Did you learn that it is a crime punishable by up

25 to five years in jail to lie to an employee of the federal

2261

1 government?



4 MR. UDELL: I have no further questions.

5 THE COURT: Mr. Greenfield.

6 CROSS-EXAMINATION


8 Q Sir, you were the chief of the explosive

9 ordinance disposal unit in 1994, is that correct?


11 Q In the year 1994, approximately how many pipe

12 bombs exploded in the Metro Manila area?

13 A In my jurisdictions, there were two.

14 Q Is your jurisdiction greater Manila?

15 A Just the city of Manila, sir.

16 Q Does that include Makati?

17 A No, sir.

18 Q How far is Makati from Malate?

19 A It is a distance, about two or three kilometers.

20 Q Sir, is Makati part of the western police

21 district?

22 A No, sir, it is not.

23 Q But Malate is, and that is where you are?


25 Q Do you know an individual named Mario Ignacio?

2262

1 A Yes, sir, I do.

2 Q Is he an explosive ordinance disposal technician?

3 A I know that he is from the Makati special

4 operations group.

5 Q Do you know that he is involved in the

6 investigation of explosions in the Makati special

7 investigations unit?

8 A Sir, perhaps that he does, but I don't know. I

9 am not a member of his unit.

10 Q Sir, on December 1, 1994, were you involved in

11 the investigation of an explosion that occurred at the Green

12 Belt Theater?

13 A No, sir, I was not involved in that

14 investigation.

15 Q At any stage or at any phase, is that correct?

16 A No, sir, I had no involvement with the

17 investigation, although at some point we exchanged

18 information if other things happened in other places.

19 Q Sir, with respect to the explosion at the Green

20 Belt Theater, did you receive any reports from any

21 investigating officers who responded to that explosion?

22 A I don't remember if I was furnished any reports.

23 Q As you sit on the stand now, do you recall

24 reading any reports with respect to the explosion of the

25 Green Belt Theater on December 1, 1994?

2263

1 A Sir, I don't know and I don't remember if I read

2 any such report, but I know of the incident that happened on

3 December 1, 1994.

4 Q Did you investigate it personally?

5 A No, sir, I did not personally investigate this

6 matter, but we do have some meetings from our association in

7 the office, in their offices sometimes, and so some

8 information are exchanged sometimes.

9 MR. GREENFIELD: Your Honor, I would ask the

10 court to instruct the witness to be responsive to the

11 question and I would ask that the second half of the answer

12 be stricken.

13 THE COURT: Sure, you got that.

14 Look, listen to the question and answer that.

15 Q Sir, on direct examination you testified that you

16 brought certain items unrelated to your investigation at the

17 Dona Josefa to a meeting with the FBI in January of 1995, am

18 I correct?

19 A Yes. Some of the things I brought there had

20 nothing to do with this investigation.

21 Q On direct examination, did you not testify that

22 you brought items to the meeting related to other bombings

23 which were not related to the Dona Josefa incident?

24 A Yes, sir, I brought some things from within my

25 jurisdiction, two of them, and of course the Makati station

2264

1 was also invited and they brought the things that was within

2 their jurisdiction.

3 Q My next question to you, sir, is, did you bring

4 any items to this meeting personally which related,

5 allegedly, to the Green Belt Theater explosion?

6 A No, sir, I did not. The person that brought

7 something from the Green Belt was Inspector Lomitao.

8 MR. GREENFIELD: I would ask that be stricken.

9 THE COURT: Yes, after "No, sir, I did not bring

10 anything," take everything after that out.

11 Q On direct examination you testified that you

12 found certain things in the apartment number 603 at the Dona

13 Josefa on January 7, is that not correct, sir?

14 A Correct, sir.

15 Q Among the things you told the FBI sometime after

16 that was that you found in this attache case two pipes and a

17 firing mechanism, is that correct?

18 A Yes, sir.

19 Q And rather than go through what we went through

20 before or earlier, if I can surmise it, in the Philippines

21 you stuck to the same story.

22 A Yes, sir.

23 Q And I think you just said the reason you stuck to

24 that story, it would be easier for them to understand.

25 A Yes, sir, that it would be easier for me and

2265

1 convenient for me if I stuck to my story.

2 Q Was it easier for them to understand -- who did

3 you mean when you referred to "them"?

4 A Sir, when I said that I was referring to myself,

5 that it would be easier for me to stick to this version of

6 the story.

7 Q So that when you stated before that it would be

8 easier for others to understand, you are now saying that you

9 misstated that?


11 Q Did you not more than 15 minutes ago tell this

12 jury that the reason you told the same story to everybody in

13 the Philippines was that it it would be easier for them to

14 understand?

15 A Sir, what I meant was that it would be easier for

16 myself on my own to stick to that story.

17 Q In the Philippines?

18 A Yes, sir, when I was there.

19 Q You ultimately arrived in the United States in

20 the beginning of June of this year?

21 A And what do you mean when I arrived here?

22 Q Ultimately you arrived in the United States

23 sometime in the beginning of June 1996, isn't that correct?

24 A Yes, sir.

25 Q There came a time when you were interviewed by

2266

1 the assistant United States attorneys in this case in early

2 June of 1996.

3 A Yes, sir, we had a briefing.

4 Q Would I be correct in assuming that one of the

5 things you told the United States attorneys when you were

6 first interviewed was that you would use this disrupter

7 device to open up the suspicious item?

8 A Yes, I used that, sir, when I tried to open it.

9 Q And you told that to the United States attorneys

10 when you spoke to them in June of 1996?

11 A I don't remember if they had asked me that

12 particular question that time, sir.

13 Q Was it in any reports?

14 A Which report are you referring to, sir?

15 Q Either yours or Ramilo's.

16 A Sir, I did not ask Mr. Ramilo to prepare a report

17 and I was not aware when there was a report by Mr. Ramilo.

18 Q Mr. Ramilo was interviewed by the United States

19 attorneys also in early June of 1996, isn't that right?

20 A I don't know when that happened, sir. They

21 talked to us one by one, one at a time.

22 Q Were you staying in the same hotel or residence

23 with Mr. Ramilo?

24 A Which place are you talking about, sir?

25 Q I don't know where you are staying.

2267

1 THE COURT: No, no, no. I think what he is

2 talking about is the Philippines --

3 MR. GREENFIELD: I am sorry, here in the United

4 States.

5 THE COURT: Here in the United States, are you

6 staying in the same hotel as Mr. Ramilo?

7 THE WITNESS: That is correct, sir.

8 Q Certainly since you have gotten here in June of

9 1996, you have discussed your meetings with the United

10 States when you got back to the hotel, isn't that right?


12 THE COURT: No, I will let him answer.

13 A Sir, we did not speak or have any conversation

14 with regard to this case. Our conversations were just

15 casual and friendly conversations.

16 Q Yet one day, on June 17, 1996, you were both

17 struck by the same bolt of lightning and decide to change

18 your story and tell the truth to the United States Attorney,

19 is that what you are saying?


21 THE COURT: Mostly argument.

22 MR. GREENFIELD: Do you want me to rephrase the

23 question, your Honor?

24 THE COURT: Please.

25 Q You get here the same day Ramilo gets here in the

2268

1 United States, is that right?


3 Q You are staying in the same hotel that he is

4 staying in.


6 THE COURT: Yes, that has already been answered.

7 Next question.

8 Q You are each meeting with U.S. Attorneys in

9 separate meetings, is that right?


11 MR. GREENFIELD: Your Honor, if I have to break

12 it down --

13 THE COURT: Yes, I know, I know. That one, go

14 ahead.

15 A Sir, it was at one time that I met with the

16 members of the United States Attorney's Office here in New

17 York, and after that I told them what I knew is the truth.

18 Q How soon after you arrived in the United States

19 did you do that?

20 A Sir, about three or four days after I had arrived

21 here in the United States and we had had a briefing, I then

22 decided that I was going to tell the truth as to what had

23 happened exactly with the attache case. At that point, I

24 told Mr. Ramilo my intention to tell the truth, and then it

25 was up to him to make the decision what he was going to do

2269

1 from that point on.

2 Q You arrived in the United States what day?

3 A I believe it was June 5, sir.

4 Q So by June 9 you had made, allegedly had made

5 this decision?


7 THE COURT: Yes, bad form.

8 Did you make this decision before June 9?

9 A Sir, I apologize that I am not sure of the exact

10 date. It was a few days after we had arrived.

11 Q Sir, yes or no, on January 7, 1995, did you order

12 senior police officer number 04 Ramilo that he, on the

13 orders of your higher ups, should file a false report with

14 respect to what occurred on January 7, 1995? Yes or no.

15 THE COURT: Look, I don't know what the answer is

16 going to be, but the question calls for a yes or no.

17 A I did not ask him to make a report.

18 Q My question to you, sir, is, did you on January

19 7, 1995, order senior police officer 04 Ramilo to file a

20 false report on the authority of higher officials in the

21 PNP?

22 MR. SNELL: Objection, asked and anwsered.

23 THE COURT: No, it is not.

24 MR. GREENFIELD: Asked but not answered.


2270

1 Q This was an important time, you are saying, in

2 January of 1995, isn't that correct?


4 Q During your 30-year career, had you ever ordered

5 anybody to lie?

6 A Sir, in this particular situation I admitted to

7 you that I did lie and that was because of the special

8 circumstances that it entailed.

9 Q My question to you -- I have heard that. Now

10 answer my question. Did you in your 30-year career other

11 than this one instance allegedly lie or order anybody else

12 to lie with respect to your police duties?

13 A In this particular incident I lied, yes, sir.

14 Q Other than this incident, did you ever order any

15 other police officer of the Philippine National Police or

16 the Philippine constabulary before that, to lie in their

17 official capacity as police officer?

18 A Sir, on my particular personnel Mr. Ramilo, I

19 instructed them to do what was not the right thing to do

20 because that was the instruction that was given to me.

21 Q Is your answer now that you did in fact tell

22 Ramilo to lie on January 7, 1995?

23 A Just on that particular portion of our story,

24 that he must stick to this particular line.

25 Q You are under oath in this proceeding, isn't that

2271

1 correct, sir?


3 THE COURT: Was there an objection?



6 Q Sir, have you told this jury any number of times

7 that you never ordered Mr. Ramilo to lie on January 7, 1995?


9 THE COURT: No, I see what's coming. Go ahead,

10 answer it.

11 A Could you repeat that question.

12 MR. GREENFIELD: Could I have it read back, your

13 Honor?

14 THE COURT: Sure.

15 (Record read)

16 A Sir, on the 7th I received a an instruction to do

17 the story line and I had informed Mr. Ramilo that that was

18 the story line that was going to be used, and there was also

19 an order that there was going to be no news about this and

20 it must not be known to anybody, and so that's what I did.

21 MR. GREENFIELD: I ask that the entire answer be

22 stricken and that he answer the question that I posed him.

23 THE COURT: No, I think the answer is contained

24 someplace in there. The jury is here. They will listen.

25 Next question.

2272

1 Q Can I glean from your answer that you told Ramilo

2 that he in fact should file a false report?

3 A Sir, my instructions to him was that he should

4 not prepare a report, that I was going to prepare a report

5 myself but I had informed them in the briefing of what the

6 story line was that was going to be contained in the report

7 that I was to prepare.

8 MR. GREENFIELD: Could we strike that one, your

9 Honor?

10 THE COURT: No, I will let that one stand. Go

11 ahead.

12 Q Didn't you say not more than five minutes ago

13 that you told him to file a portion of his report in a false

14 fashion?

15 MR. SNELL: Objection, objection.

16 THE COURT: I don't remember -- it sounds like

17 argument anyway. Sustained.

18 Q Sir, when is it that Chief Inspector Angeles

19 tells you that you should file a false report?

20 A Sir, that was in the morning of January 7.

21 Q Where did that occur?


23 Q Approximately what time in the morning were you

24 given this order?

25 A Sir, that was at that time after I had returned

2273

1 from the PSG to drop off the attache case.

2 Q Did Chief Inspector Angeles give you a list of

3 items to include in your report?

4 A No, sir.

5 Q Sir, when did you first learn that a laptop

6 computer was allegedly found at room 603 on January 7, 1995?

7 A That was in the early morning, sir, when

8 Mr. Ramilo and Mr. Mandigma informed General Canson that

9 there was a computer there.

10 Q And that is when you first learned that, is that

11 your testimony?

12 A Yes, sir.

13 Q Isn't it a fact that in March of 1995 when you

14 were interviewed by the FBI you said you didn't learn that

15 there was a computer found until sometime after you left the

16 apartment?

17 A I don't remember that I said that to the FBI.

18 Q Would you look at 3523E, please.

19 THE INTERPRETER: You said C or E? Excuse me.

20 MR. GREENFIELD: I said E.

21 Q Last paragraph.

22 (Pause)

23 Q Have you read that to yourself, sir?

24 A Yes.

25 Q In March of 1995, did you tell special agents of

2274

1 the FBI that you only learned there was a computer in the

2 apartment sometime after you were in the apartment?

3 A Sir, I knew that there was a computer when

4 Mr. Ramilo and Mr. Mandigma mentioned that that day, that

5 morning when we were there, and that's what I knew -- I

6 really didn't know that that was a computer because I had

7 not seen anything like that before.


9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2275

1 THE COURT: We are going to take a break right

2 now.

3 MR. GREENFIELD: I think I can use one also.

4 THE COURT: All right, ladies and gentlemen.

5 (Recess)


7 MR. SNELL: Your Honor, right now we don't have

8 any redirect of the witness but we do have an application

9 before the witness is excused.

10 THE COURT: What is the application?

11 MR. SNELL: Application regarding the

12 photographs, based on the cross-examination of both Mr.

13 Yousef and Mr. Udell.

14 THE COURT: Who is next, in case you finish

15 before the day is over?

16 MR. SNELL: If we finish before the day is over,

17 the next witness will be Albert Ferro.

18 THE COURT: Major or something?

19 MR. SNELL: I am sorry, your Honor.

20 THE COURT: Agent?

21 MR. SNELL: Major Ferro. He is from the

22 Philippines.

23 THE COURT: That is what I thought.


25 (Jury present)

2276


2 Q Sir, yes or no. On January 7, 1995, did you

3 instruct senior police officer 04 Ramilo to exclude from his

4 official report that he found a computer in room 603 of the

5 Dona Josefa Apartments?

6 A No, sir, I said nothing of that sort.

7 Q Upon arriving at the apartment on January 7,

8 1995, were you shown an improvised explosive device,

9 allegedly, by Sergeant Ramilo?

10 A Mr. Ramilo and Mr. Mandigma informed me that

11 there was a suspicious device on top of the cabinet by the

12 kitchen area.

13 Q Who else was in the apartment when you arrived

14 besides those two gentlemen?

15 A What I remembered was Captain Fariscal and the

16 foreigner that I identified was there.

17 Q And that's it?

18 A I don't know, sir. I didn't notice if there were

19 any other personnel, but there were personnel from station 9

20 downstairs. If they were in the vicinity of that apartment,

21 I don't know.

22 Q I am asking who was in the apartment. You just

23 named three names and a foreigner. Anybody else besides

24 those three names, yourself and a foreigner who were in the

25 apartment when you arrived on January 7, 1995?

2277

1 A Sir, the names that I mentioned and I gave to you

2 were the persons that I know at that time. Whether there

3 were some people there at other times I don't know.

4 Eventually people arrived there.

5 Q Sir, when you arrived and you were shown this

6 allegedly suspicious device, allegedly shown to you by

7 Ramilo, did you immediately order him to disarm it?

8 A No, sir, I instructed him not to touch it and to

9 leave it the way it was.

10 Q Sir, do you have any devices within your

11 control -- withdrawn.

12 Did you have any devices within your control as

13 the chief of the explosive ordinance disposal unit that

14 remotely opened attache cases in January of 1995?

15 A What do you mean by that s sir?

16 Q In your experience as an explosive ordinance

17 disposal technician, have you ever used any sort of

18 implement that remotely, through remote control opens

19 suitcases or briefcases?

20 A What do you mean by that, the attache case that I

21 collected at room 603?

22 A Yes.

23 Q Yes.

24 A That was open, sir, when I collected it.

25 Q Did you have any equipment in January of 1995

2278

1 that was capable of opening an attache case, any attache

2 case in a remote control fashion?

3 A It is possible that one of my personnel had it,

4 but, you know, they were the ones that responded. I didn't

5 have it on me.

6 Q Does your squad have that type of equipment?

7 A Yes, sir, they have.

8 Q And have you used that equipment when you were

9 chief of the unit?

10 A Yes, sir.

11 Q Did you order, on January 7, 1995, senior police

12 officer 04 Ramilo to state in his report that he remotely

13 opened the briefcase in question at the 9th police station?

14 A I put in the report that we had rendered safe the

15 suspicious device that was in the attache case.

16 Q Sir, that is your report now. Put your report

17 down, sir, and answer my question. Did you order on January

18 7, 1995, -- withdrawn.

19 On January 7, 1995, did you order senior police

20 officer 04 Ramilo to include in his report that he remotely

21 opened the suspicious attache case he received at the 9th

22 police station from Ada Fariscal?

23 A I didn't say anything like that to Mr. Ramilo,

24 sir.

25 Q Sir, you say a bomb was found in a six-story

2279

1 residential apartment house at or about 2 a.m., is that

2 right?

3 A Yes, sir.

4 Q You have no idea if it is timed or booby-trapped,

5 is that right?

6 A Sir, my presumption was there was none, because

7 that building is a residence. There are a lot of people

8 that live there, and that particular apartment that they

9 were referring to was assumed to be occupied.

10 MR. GREENFIELD: Could I have the question read

11 back, your Honor?

12 THE COURT: Sure.

13 (Record read)

14 Q Could you answer that question, sir.


16 THE COURT: I think he tried to.

17 MR. GREENFIELD: He did?

18 THE COURT: Yes.

19 MR. GREENFIELD: Can I ask it again in another

20 fashion, Judge?

21 THE COURT: Sure.

22 Q Sir, when you enter the apartment on January 7,

23 1995, were you in possession of any information that would

24 lead you to believe that a bomb was not set to go off?

25 A No, sir, I have no such information.

2280

1 Q And you believed it could be a bomb?

2 A What do you mean by that?

3 Q Haven't you been telling us the last three days

4 that you believed that device was a suspicious device?

5 A Yes, sir. When I got upstairs it was pointed out

6 to me that there was something there that looked like a

7 suspicious device, that had the wrapping around it.

8 Q Maybe I have been wrong -- withdrawn. Maybe I

9 have misunderstood. When you have been saying suspicious

10 device, I thought you meant something that would explode.

11 Was I wrong?


13 THE COURT: It is poor in form, but go ahead and

14 answer it.

15 A No, sir. At that particular time they showed me

16 a suspicious device and there is a possibility that could

17 explode. But then again that place isn't booby trapped.

18 That place was occupied by a person that was living there.

19 So I didn't know.

20 Q And you weren't concerned that if a bomb went off

21 other residents of the building might be injured?

22 A Sir, that is why I instructed them not to touch

23 it, because there might be an accident or other people might

24 get hurt.

25 Q Did you ultimately touch it?

2281

1 A Yes, sir, of course. They had looked it over and

2 so they had touched it, and it didn't do anything, so my

3 assumption is it is not booby trapped. So I further

4 instructed them not to touch it.

5 Q You don't know if it contained a timing device

6 inside, did you?

7 A No, sir, I didn't know that, because it was

8 wrapped.

9 Q And if the plastic wrapping came off, you were

10 able to tell if it had a timing device inside of it?

11 A No, sir, I did not find a timing device inside.

12 Q Sir, isn't it a fact that no pipe bomb was in

13 that apartment that evening on January 7, 1995, but in fact

14 Major Angeles told you to say something was found in that

15 apartment that evening?

16 A That is not the truth, sir. In fact, first thing

17 that morning when we got there, I was able to take

18 photographs of the things that were inside that.

19 Q Sir, a videotape allegedly was made on January 7,

20 1995, is that correct?

21 A Yes, sir, that was later on that afternoon. It

22 lasted through the evening.

23 Q Sir, did you ever see that videotape in the

24 Philippines? Was it ever played for you?

25 A Yes, sir.

2282

1 Q When and where did you see it?


3 Q Approximately when?

4 A After Mr. Capacete had taken the video, then we

5 reviewed it in our offices.

6 Q That same day?

7 A I don't remember what day that would be. It was

8 in the evening.

9 Q Now, sir, you were Officer Capacete's superior on

10 January 7, 1995?

11 A Correct, sir.

12 Q And his orders were not to film anything on the

13 videotape until they had been tagged and identified, is that

14 correct?

15 A My instructions to him were, sir, that when

16 Mr. Ramilo and the rest of the party were conducting their

17 inventory and investigation, that he was to take the

18 videotape.

19 Q You say you found certain things in that

20 apartment that afternoon while the video camera was running,

21 is that right?

22 A Could you repeat that, please.

23 Q You say that you found certain things in the

24 apartment during the course of the execution of the search

25 warrant, during the time the video camera was present and

2283

1 being used in that apartment.

2 A Where did I say that, sir?

3 Q Didn't you say that during the time that you were

4 executing a search warrant you found a Casio data bank watch

5 in a drawer in that apartment?

6 A Sir, I didn't say that. We weren't taking any

7 video of the watches at that time that evening. I collected

8 those watches that morning when I was there and in fact I

9 took several photos. The video was taken in the afternoon.

10 Q You didn't say earlier today or yesterday that

11 the video was found -- withdrawn -- that one of the data

12 bank watches was found when you returned to the apartment?

13 A When I collected that, Joe-Joe was not able to

14 take a video.

15 Q So when you found the data bank watch, Joe-Joe --

16 is that what you called him? -- wasn't able to take the

17 video?

18 A No, sir, I wasn't.

19 He wasn't able to take a video that afternoon,

20 but I was able to take a photograph of it earlier that

21 morning.

22 Q And you said you found some tools that afternoon.

23 Did Joe-Joe take videos of the tools you found?

24 A Sir, Joe-Joe was not able to take a video of

25 those tools because we found those tools after we had

2284

1 returned to our office that evening.

2 Q And you say there were burns on the floor in the

3 kitchen area. Did you tell Joe-Joe to take pictures of the

4 burns on the floor in the kitchen area?

5 A The burn marks that I saw, I saw that on my own.

6 Whether Mr. Capacete, or Joe-Joe, was able to take a

7 videotape of that, I don't know, sir.

8 Q You were his superior officer that day, weren't

9 you?

10 A Sir, I was the chief of Mr. Capacete at that

11 time, but at that time I tried to supervise them as much as

12 I can. There were a lot of people there and there was a lot

13 of confusion that was happening.

14 Q Did you give a direct instruction to your

15 subordinate Joe-Joe Capacete to take videotape footage of

16 the burn marks in the kitchen area?

17 A I don't remember specifically if I had ordered

18 him to take videotapes of the burn marks, but my

19 instructions to him were to take a videotape as things were

20 happening in that room.

21 Q Sir, when you first arrive for the execution of

22 the search warrant, who unlocks the door to room 603?

23 A There was a representative there, Mrs. Saracho,

24 together with the room boy. They opened the door and I was

25 the first one to enter.

2285

1 Q And there was no one in the apartment?

2 A Inside the apartment there was no one.

3 Q Isn't it a fact that you previously told people

4 that a member of the Philippine National Police was securing

5 the apartment?

6 A That is the way I understood it, but they must

7 have been outside.

8 Q Did you see any uniformed police officer on the

9 tape when you reviewed it?


11 Q You kept certain items that were seized during

12 the course of the search warrant being executed, isn't that

13 correct?


15 Q Those items, which you say you kept, are not

16 reflected, are they, in the inventory filed with the court

17 as to items taken during the course of the execution of the

18 search warrant?

19 A Sir, it is possible that Mr. Voltaire Gomez was

20 not able to include these items in the inventory. So I

21 wrote a report to reflect these items.

22 Q He is your subordinate, isn't he?

23 A Yes, sir, and I should explain to you that at

24 that time it was chaotic and it was busy, so we just put all

25 together the wires that were there. We did not bother to

2286

1 identify every single one of them.

2 Q You went into that apartment specifically looking

3 for timers, watches, things of that nature, isn't that

4 correct?

5 A Sir, that is a part of what we saw inside that

6 apartment.

7 Q You went in there allegedly looking for things of

8 that nature, isn't that correct?

9 A Yes, sir. When I went before the judge and he

10 asked me what were the things that I saw in there, I told

11 him everything that was inside the room, and so when we came

12 back to serve the warrant, those were the things that I

13 looked for and I collected.

14 Q You allegedly collected. The inventory does not

15 indicate that you found a data bank watch when you returned

16 on the evening of January 7, 1995, does it?


18 THE COURT: I will let it go.

19 A Sir, like I have told you, there were a lot of

20 things there, so Mr. Voltaire Gomez was not completely able

21 to identify every single item that was collected there. So

22 that the data bank was not there, perhaps. So what I did

23 was I prepared the report to reflect that there was this

24 particular item.

25 Q You testified in this courtroom on July 15, 1996,

2287

1 correct? Yesterday.

2 A Yes, sir.

3 Q Page 2191, your Honor, lines 6 through 10. Sir,

4 yesterday were you asked this question and -- withdrawn. It

5 will be from line 2 through 10, your Honor. Were you asked

6 these questions and did you make these answers:

7 "Q What did you assign Mr. Gomez to?

8 "A Particularly for Mr. Gomez, I assigned him

9 to the writing of the inventory as well as the making

10 of the inventory.

11 "Q Did you give him any instructions

12 regarding the items which he should include in the

13 inventory?

14 "A Everything that was inside the room. We

15 went through it one by one. As we went through it,

16 he was listing it, and as he is listing it he is

17 marking it with a tape."

18 Did you make those answers yesterday to those

19 questions?

20 MR. KULCSAR: Your Honor, might I ask that the

21 interpreter be given the minutes to read rather than relying

22 on what was read?

23 THE COURT: Sure. I don't have it in front of me

24 right now.

25 THE INTERPRETER: What line was that?

2288

1 MR. GREENFIELD: 2 through 10.

2 Q Sir, you read English, don't you, sir?

3 A Yes.

4 Q Read that to yourself.

5 (Pause)

6 A Yes, sir, I have read it.

7 Q Does it indicate in yesterday's answer that it

8 was chaotic in there and he left some things out?

9 A Yes, sir. There was a lot of electronic parts

10 and electronic items in that room, and we could not possibly

11 list every one of them.

12 Q Did you list in the inventory any of the alleged

13 Casio watches that were supposedly seized in that apartment?

14 A Yes, sir. As I have explained to you,

15 Mr. Voltaire Gomez got the electronic items and the

16 electronic parts collectively. So the watch must have been

17 collected together with the electronic parts. So later on I

18 made a report to indicate that.

19 Q You are saying that Mr. Gomez may have included

20 incandescent bulbs and watches in the same characterization?

21 Is that your testimony?

22 A Yes, sir, there were a lot of different things

23 there. There were watches, there were timers, there were

24 electronic implements.

25 Q The fact is that one of those items that is

2289

1 allegedly contained -- withdrawn.

2 The fact is that none of the items contained in

3 your report are reflected in the official inventory filed

4 with the court in the Philippines in January of 1995.

5 A Sir, perhaps in the report of Mr. Gomez it was

6 not included. I didn't prepare the report where I asked

7 Mr. Gomez to signature and sign.

8 Q I am talking about the official inventory filed

9 with the judge.

10 A It is possible, sir, that that is not included

11 there.

12 MR. GREENFIELD: Your Honor, I would offer as a

13 defendant's exhibit the inventory.

14 MR. SNELL: It is already in.

15 MR. GREENFIELD: Then I won't.

16 THE COURT: You can offer it, but it is already

17 in anyway.

18 Q Sir, when was this videotape allegedly made?

19 A Sir, Joe-Joe took that videotape during the

20 course of the serving of the search warrant that afternoon.

21 Q And in your mind there is no question but that

22 this videotape was shot on January 7, 1995, and no date

23 later than that?

24 A Yes, sir.

25 Q You keep certain items, you say, for your own

2290

1 purposes, for examination purposes, is that right, like the

2 watches that you held, the Casio watches?

3 A Yes, sir.

4 Q Did you ever submit submit the Casio watches on

5 January 7, 8, 9 or 10 to the National Bureau of

6 Investigation of the Philippines?


8 Q On any day did you submit any of the items that

9 you took for examination to the National Bureau of

10 Investigation for their forensic examination?

11 A I did not submit it, sir, because we were

12 informed that no one was to know about this incident.

13 Q You were a police officer, correct?


15 Q The National Bureau of Investigation are police

16 officers, is that correct?


18 Q You were informed not to go talk to the public,



21 Q You are saying that these were trying times for

22 you, that this was a very momentous occasion, isn't that

23 right?

24 A Yes, sir, that particular time it was.

25 Q And you didn't submit any of the items that you

2291

1 personally seized to determine if in fact what you were

2 concerned about may or may not have been happening.


4 Q Didn't you say that you had some concerns for

5 national security and the security of the Pope?

6 A Yes, sir, that is the truth, and so I kept those

7 things with me.

8 Q And that helped you further your investigation,

9 by putting it in your pocket, is that what you are saying?

10 A I wasn't the person that was investigating this

11 particular case, sir.

12 Q Did you give these items to the person who was?

13 A No, sir, it was in my possession at that time.

14 Nobody tried to collect it from me until such time that

15 Mr. Walbert approached me.

16 Q Sir, isn't it also a fact that on February 16,

17 1995, you tell special agents of the FBI that the reason you

18 kept these watches was because you wanted to examine it for

19 similarities with the timing device of the bomb which

20 exploded aboard Philippine Airline flight 434 on December

21 11, 1994?

22 A It is possible that I have said that after having

23 been briefed by Mr. Walbert.

24 Q You wouldn't have said it because according to

25 you you didn't know it on January 6 or 7 of 1995, is that

2292

1 right?



4 A Sir, on January 7, I kept that particular one

5 because I wanted to look at that wiring system. There was

6 only one, compared to the other one that I had collected

7 that morning where it had two wiring systems.

8 Q My question to you, sir, very specifically, yes

9 or no, in February of 1995 did you tell an agent of the FBI

10 in words or substance that the watch was retained by

11 yourself to be examined for similarities with the timing

12 device of the bomb which exploded aboard Philippine Airline

13 flight 434 on December 11, 1994?



16 A Yes, and that is the reason why I told the FBI,

17 because Mr. Walbert had written me about this.

18 Q When did Mr. Walberg or Walbert brief you about

19 this?

20 A When he came to visit me at my office, he showed

21 me some pictures and he wanted to look at the watch that I

22 had in my possession to see if they could have some

23 comparison.

24 Q Approximately what date does this occur?

25 A It was, I believe, before the FBI interviewed me,

2293

1 sir.

2 Q Would that be after you searched the Don Josefa

3 apartment?

4 A Yes, sir, the search had been finished.

5 Q And you testified on direct examination that that

6 didn't occur until a couple weeks after the search had been

7 finished, this interview with Mr. Walbert of the FAA.


9 Q So you are saying now that you kept the watch on

10 January 7, anticipating Walbert would come a couple weeks

11 later so that you could compare it to what went off on the

12 Philippine Airline flight, is that right?

13 THE COURT: Sustained. Next question.

14 Q Did you know on January 7 Mr. Walbert?

15 A No, sir, I do not know him at that time.

16 Q Then how can you have told the FBI in February of

17 1995 that you kept the watch on January 7 for the purpose of

18 comparing it to the Philippine Airline watch?

19 A I don't know, sir, why they mentioned such a

20 thing in the report. Perhaps they misquoted it.

21 Q Or perhaps you made another mistake in your

22 testimony.



25 Q Sir, there came a time, you are saying, after the

2294

1 incident at the Dona Josefa apartment, you went to an

2 apartment, I believe you said on Singalong Street?

3 A Yes, sir.

4 Q And you were ordered there by somebody?

5 A Yes, I was asked by Major Angeles to accompany

6 his men.

7 Q What time is it that you arrive at this address,

8 or this building?

9 A It was at nighttime. It was probably past 7.

10 Q How long were you there?

11 A Sir, it was just for sometime I waited for

12 General Canson. After he arrived and we had done what we

13 needed to do, he left and I also left.

14 Q How long were you there then?

15 A It is possible that we were there for two or

16 three hours. I cannot tell you exactly, sir.

17 Q Sir, did you file a report with the Philippine

18 National Police as to the fact that you were allegedly at

19 this apartment on Singalong Street in January of 1995?

20 A No, sir, I didn't file a report.

21 Q You were interviewed, I think, on three separate

22 occasions by the FBI in the Philippines in 1995 with respect

23 to this case, isn't that right?


25 Q And isn't it a fact that on those three occasions

2295

1 you never once mentioned going to Singalong Street to the

2 FBI?

3 A They did not ask me about that, sir, so I didn't.

4 Q Did you know why you were meeting with the FBI in

5 1995?

6 A They did not tell us in particular what they

7 wanted. They just wanted us to go there for an interview.

8 Q You have been a police officer 30 years, you

9 said?

10 A I don't understand. Can you say that again,

11 please.

12 Q You were a police officer for 30 years, isn't

13 that correct, sir?

14 A Yes.

15 Q You know that all information is important to the

16 police, isn't that correct, sir?

17 A Yes, I do.

18 Q Is it your testimony that in the three visits you

19 had with the FBI in the Philippines in 1995, you never

20 volunteered to them that something allegedly occurred on

21 Singalong Street in January of 1995?

22 A I don't remember if I had mentioned it to them or

23 they had asked me any questions in regard to this matter,

24 and that is perhaps why I didn't tell them.

25 Q Did you volunteer the information to them?

2296


2 Q Look at the reports that indicate your interviews

3 with the FBI. They are before you.

4 MR. SNELL: Your Honor, could we just identify

5 for the record what the witness is examining?

6 MR. GREENFIELD: C, D, E and F.

7 (Pause)

8 A I don't see it in here, sir.

9 Q Isn't it a fact that the first time you ever

10 mentioned this alleged incident in January 1995 on Singalong

11 Street was approximately a week and a half, two weeks ago?

12 A It is possible that I disclosed that here, sir.

13 Q Were you ordered by Chief Inspector Angeles to

14 volunteer that information this late date?


16 THE COURT: I will let it stand.

17 A No, sir, I have not had any conversations with

18 Major Angeles.


20

21

22

23

24

25

2297

1 MR. GREENFIELD: No further questions.

2 THE COURT: Do you have any redirect?

3 MR. SNELL: Just an application.


5 (Witness excused)

6 THE COURT: We will take the application after

7 the jury leaves.

8 Ladies and gentlemen of the jury, I am going to

9 ask you tomorrow, if you could, please, we are going to get

10 started at 9:30, God willing. If it puts a real burden on

11 you, let me know. I am also thinking about -- I am not yet

12 to that point -- working Fridays, but that may put a real

13 burden on you. I am not asking you. If it does, please

14 tell Eric -- there he is -- and we will figure it out. All

15 right, guys? Good night, see you tomorrow morning.

16 (Jury excused)

17 THE COURT: What is the application?

18 MR. SNELL: Your Honor, the government renews its

19 application to introduce the photographs taken by Mr. Cruz

20 based on now a third cross-examination which really perhaps

21 the most pointedly of all cross-examinations lays the

22 groundwork for a defense argument that there is no proof

23 other than the recollection of the witness that the Casio

24 watches came from inside the apartment 603. Those Casio

25 watches are now in evidence and the witness has photographs

2298

1 of those watches which the witness is prepared to testify he

2 took on the morning of --

3 THE COURT: He took?


5 THE COURT: He personally took?

6 MR. SNELL: He personally took.

7 THE COURT: The rules require that evidence of

8 this type be turned over prior to trial. You have been with

9 this evidence from at least June, early June of this year.

10 I have no idea when else it could have happened. It had to

11 be this witness or one of the others bringing it in. You

12 didn't turn it over, you don't get it in. It's the same

13 thing as you want to get in a statement by the defendant,

14 had to be a couple of weeks you have had that. I have no

15 idea exactly when because it is not detailed here. You

16 don't get that in either.

17 You know, one of the things that we have to do is

18 play by the rules.

19 MR. SNELL: If I might, your Honor, the

20 circumstances surrounding the government's obtaining these

21 photographs are that we didn't even know about the existence

22 of the photographs until last weekend, and immediately we

23 requested the photographs that the witness said he had in

24 his possession here in New York, plus additional ones that

25 he said were still in the Philippines. We had those DHL'd

2299

1 to New York and they arrived, I think in the middle of last

2 Thursday morning's court session. We disclosed them as soon

3 as we had them.

4 THE COURT: You mean to say in all of your

5 discussions with this witness or with the other witnesses,

6 there was no mention whatsoever as to whether any pictures

7 were taken?

8 MR. SNELL: That is certainly my understanding,

9 your Honor. I don't know of any discussion with this

10 witness about photographs at that particular time inside

11 room 603. The later time with the search warrant, we

12 certainly did discuss that, and we knew about the videotape

13 and it was turned over when we knew about it, many months

14 ago.

15 THE COURT: You will talk to this witness at some

16 point, I have absolutely no doubt about that. You have the

17 videotape. The videotape shows flash bulbs going off. It

18 would indicate immediately that there were pictures and you

19 didn't ask the man that was there whether pictures were

20 taken and he didn't say yes, but somebody took them in the

21 morning?

22 No, I am not going to fly with that one, because

23 what that indicates, either it wasn't properly investigated

24 or it wasn't properly prepared. One way or the other, it is

25 not a burden which should be stuck on the defense. This is

2300

1 not a case that came up and you had to try within two weeks

2 after the indictment. No way.

3 9:30 tomorrow morning.

4 (Proceedings adjourned until Wednesday, July 17,

5 1996, at 9:30 a.m.)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2302

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

3 UNITED STATES OF AMERICA,

4 v. S12 93 Cr. 180 KTD

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

16 Defendants.

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

18

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

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

25

2303

1

2

3 APPEARANCES 4

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

9 ROY KULCSAR, Attorney for defendant Yousef 10

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

13 DAVID GREENFIELD, 14 Attorney for defendant Shah

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

17 AZIZ ISMAIL HASSAM MOWAD 18 MIRA RIVERA

19

20

21

22

23

24

25

2304

1 (Trial resumed)


3 THE COURT: I have gone through the 3500 material

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

5 person.

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

7 as the government is concerned. I understand that counsel

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

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

10 going to object to that.

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

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

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

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

15 MR. UDELL: Apologize, your Honor.

16 THE COURT: Mira Rivera is going to be the

17 interpreter again today.

18 Do you have another witness after Ferro?

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

20 that Ferro may be the entire day.

21 THE COURT: Not on direct.

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

23 taking the cross into consideration.

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

25 time on another matter?

2305

1 THE COURT: Yes.

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

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

4 statement of my client, that he identified himself as

5 Ibriham Rabi Hassan of Norway when he was first approached

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

7 The government says they intend to elicit this statement

8 during the direct examination of whoever the witness is who

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

10 when the government came into receipt of this statement.

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

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

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

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

15 the witness had been interviewed on prior occasions and

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

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

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

19 THE COURT: Government?

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

21 representation. This witness arrived in New York

22 approximately two weeks ago. He was interviewed about a

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

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

25 This witness was interviewed in Manila. He was considered

2306

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

2 not asked about this matter.

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

4 without this witness's testimony as to this particular

5 matter.

6 MR. GARCIA: That is correct.

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

8 didn't. It is not coming in.


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

11 raise one other issue with the court?

12 THE COURT: Yes.

13 MR. GARCIA: This is something the government and

14 defense counsel have been working on. It is our

15 understanding that counsel for Mr. Murad will seek to

16 introduce portions of certain tapes through this witness on

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

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

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

20 Barrett on a redacted transcript and a redacted tape

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

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

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

24 section of the tape that the government sections would also

25 be played at that time, to save time.

2307

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

2 what you are telling me?

3 MR. GARCIA: Exactly, your Honor.

4 THE COURT: Is that the deal?

5 MS. BARRETT: I have no problem with the

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

7 the section, your Honor, but --

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

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

10 all I can hear. What is it?

11 MS. BARRETT: I have no problem with the

12 government playing their section of the tape at the same

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

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

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

16 play segments in connection with certain questions that I

17 plan to ask.


19 MS. BARRETT: That would be OK?

20 THE COURT: Sure.

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

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

23 there any Bruton problems with respect to this?

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

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

2308

1 Yousef have been removed.

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

3 heard at the hearing.

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

5 portions of that tape.

6 MR. GREENFIELD: It was so long ago.

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

8 instances where there was a disagreement over the

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

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

11 italics and one in print, to indicate disagreement.

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

13 (Jury present)

14 ALBERT I.D. FERRO,



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

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


20

21

22

23

24

25

2309 1 DIRECT EXAMINATION

2 BY MR. SNELL:

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

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

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

6 Philippines?

7 A. I am a police officer.

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

9 A. Yes, sir.

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

11 National Police?

12 A. From 1991 to the present.

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

14 A. I was with the armed forces.

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

16 A. With the Philippine Constabulary.

17 Q. What is your current assignment within the

18 Philippine National Police?

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

20 branch chief of a group.

21 Q. What group is that?

22 A. It is the Special Investigation Group.

23 Q. Where are your offices located?

24 A. At Camp Crame.

25 Q. Is that in Quezon City?

2310 1 A. Yes, sir.

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

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

4 A. Yes, sir.

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

6 title?

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

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

9 title within the military?

10 A. Yes, sir.

11 Q. What rank is that?

12 A. I am a major.

13 Q. How long have you had that rank?

14 A. From 1995.

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

16 Did you work on that date?

17 A. Yes, sir.

18 Q. What is the first thing you remember happening

19 that day in connection with your job?

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

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

22 Q. Where is Colonel Garcia's office?

23 A. It is in the Intelligence Command headquarters.

24 Q. Did you go there?

25 A. Yes, sir.

2311 1 Q. What happened when you arrived at Colonel

2 Garcia's office?

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

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

5 was told that we were going to another office.

6 Q. Did you then go to another office?

7 A. Yes, sir.

8 Q. What office did you go to?

9 A. We went to the Presidential Security Group

10 office.

11 Q. Where is that located?

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

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

14 difference between Malacanang Park and Malacanang Palace?

15 A. Malacanang Palace is where the President of the

16 Philippines holds office, and Malacanang Park is where the

17 security forces of the President is located.

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

19 Malacanang Park?

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

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

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

23 PSG.

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

25 A. It is the Presidential Security Group.

2312 1 Q. Which officers of the Presidential Security Group

2 do you remember being present in this conference room?

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

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

5 Colonel Ferrer.

6 Q. Were other officers there as well?

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

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

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

10 did you see there?

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

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

13 watch.

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

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

16 Exhibits 301 and 301A.

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

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

19 you?

20 THE COURT: Pick it up.

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

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

23 A. Yes, sir.

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

25 A. This is a laptop computer.

2313 1 Q. Does it look familiar to you?

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

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

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

5 exhibits could be handed to the witness.

6 THE COURT: What are they?

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

8 302B.

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

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

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


13 THE COURT: It is all right.

14 A. Yes, sir.

15 Q. What do you recognize that to be?

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

17 conference table.

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

19 is the photograph. Do you recognize that?

20 A. Yes, sir.

21 Q. What does that photo show?

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

23 there are also wires in the photograph.

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

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

2314 1 A. 351C.

2 MR. SNELL: Could the witness please be shown

3 351B.


5 THE COURT: No.

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

7 A. Yes, sir.

8 Q. What is it?

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

10 is also --


12 THE COURT: No.

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

14 on that conference table.

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

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

17 A. Yes, sir.

18 Q. What do you recognize that to be?

19 A. It is a pipe.

20 Q. Does it look familiar to you?

21 A. Yes, sir.

22 Q. What do you remember it as?

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


25 THE COURT: Yes. The objection should have been

2315 1 to the question.

2 Where did you first see it?

3 THE WITNESS: On that conference table.

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


6 THE COURT: All right. Thanks.

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

8 I think it is behind the black case.

9 Do you recognize that?

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

11 conference table.

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

13 said, some calling cards?

14 A. Yes, sir.

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

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

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

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

19 ID's, is that right?

20 A. Yes, sir.

21 Q. What do you recall about those?

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

23 Paul Vijay and the other was Adel Sabah.

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

25 (Record read)

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

2 at this time?

3 A. I saw a spiral notebook.

4 Q. Did you have an opportunity to examine that

5 notebook while you were inside the conference room?

6 A. Yes, sir.

7 Q. Do you remember generally what it contained?

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

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

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

11 A. I could not understand nor read the foreign

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

13 coming from the watch.

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

15 that you have just been testifying about inside the

16 conference room, what did you do?

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

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

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

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

21 that?

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

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

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

25 A. I mean Colonel Garcia and Colonel Delfin.

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

2 room, where did you go?

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

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

5 us, and we all rode the vehicle.

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

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

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

9 instance.

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

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

12 knew at that time as Mr. Murad.

13 A. Yes, sir.

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

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

16 pointing at.

17 THE WITNESS: May I stand, sir?


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

20 that long table.

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

22 A. To her left hand.

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

24 the identification of the defendant Murad?

25 THE COURT: Yes.

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

2 Mr. Murad. Where did you go?

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

4 office.

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

6 location?

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

8 afternoon by that time.

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

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

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

12 laptop computer aside for further study.

13 Q. Where did you set the laptop computer?

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

15 be secure in storage.

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

17 over the documents?

18 A. I looked for any relations between what is

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

20 started to check for the names and phone numbers.

21 Q. What did you do next?

22 A. At eveningtime I ordered Richard Macachor to open

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

24 from the computer.

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

2319 1 is.

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

3 he is one of my subordinates in my office.

4 Q. Where were you when -- withdrawn.

5 What happened after you instructed Mr. Macachor

6 to see what he could do with the computer?

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

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

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

10 American aircraft and --



13 THE COURT: You saw something that you thought

14 might have been airline schedules. Were there any words

15 other than that on the screen?

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

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

18 remember offhand at this moment.

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

20 A. Yes, sir.

21 Q. Could you spell it for us.

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

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

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

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

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

2 time.

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

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

5 "we"?

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

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

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

9 when you saw this?

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

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

12 look at material on the computer that evening?

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

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

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

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

17 continue looking at these documents that I had and

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

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

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

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

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

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

24 what the contents of the computer were.

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

2321 1 at the computer, for that evening?

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

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

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

5 then these documents and this computer would be secured and

6 nobody else could touch them.

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

8 anyone else look at it in your presence?

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

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

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

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

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

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

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

16 the office.

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

18 last name, please?

19 THE COURT: Sure.

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

21 Q. Is that first name Jingo?

22 A. Yes, sir.

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

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

25 withdrawn. Is it Mr. Rivel?

2322 1 A. Yes, sir.

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

3 circumstances under which Mr. Rivel would access to the

4 computer.

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

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

7 then I would return it to my steel cabinet.

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

9 for the computer?

10 A. Yes, sir.

11 Q. Who asked you for it?

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

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

14 Canlas.

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

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

17 Monday.

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

19 A. He is one of our computer consultants.

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

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

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

23 custody then?

24 A. To my knowledge, the computer remained with

25 Mr. Canlas for one day.

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

2 A. Yes, sir.

3 Q. Who returned it to you?

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

5 because Colonel Delfin returned it to him.


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

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

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

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

11 Q. After you received the computer back from Colonel

12 Garcia, what did you do with it?

13 A. I returned it to my steel cabinet.

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

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

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

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

18 FBI?

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

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

21 the Holy Pope had left.

22 Q. During the time that the computer remained in

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

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

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

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

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

3 woman and her first name is Mary.

4 Q. What were the circumstances surrounding this

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

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

7 having cooperative action with the group of Mr. Frank

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

9 contingent.

10 Q. You previously mentioned that you returned from

11 the Presidential Security Group office on January 7 with

12 some documents, is that right?

13 A. Yes, sir.

14 Q. Where did you keep those documents?

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

16 steel cabinet.

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

18 additional items in connection with this particular

19 investigation?

20 A. Yes, sir.

21 Q. What did you receive?

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

23 was a chemical dictionary and manuals regarding timers

24 and --


2325 1 DEFENDANT YOUSEF: Objection, your Honor.

2 THE COURT: No.

3 A. -- and assorted notes regarding chemicals and

4 explosives.

5 Q. What did you do with those items?

6 A. I studied these also because the diagrams and

7 other notes in the documents seemed to pertain to chemicals

8 and explosives.


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

11 studied them. Next.

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

13 of these materials to the FBI?

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

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

16 couldn't lift fingerprints --


18 THE COURT: Turned them over to the FBI for

19 fingerprinting. All right, next question.

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

21 items to the FBI for fingerprint analysis?

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

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

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

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

2326 1 you were in the Philippines?

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

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

4 discolored.

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

6 back?

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

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

9 over these documents and the laptop computer.

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

11 and the laptop?

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

13 Mr. Frank Pellegrino.

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

15 ordered to turn over the evidence to Frank Pellegrino?

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

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

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

19 shown what has been marked 3527F for identification?

20 THE COURT: Sure. Here you go.

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

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

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

24 evidence to Agent Pellegrino?

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

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

2 1995.

3 Q. Does that refresh your recollection as to when

4 you did the turn-over?

5 A. Yes, sir.

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

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

8 witness stand and supply the witness with others.

9 THE COURT: Sure.

10 MR. SNELL: First, 305 for identification,

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

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

13 Q. Major Ferro, while the exhibits are being

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

15 front of you.

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

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

18 present being shown to the witness.

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

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

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

22 hands?

23 A. Yes, sir.

24 Q. Do you recognize that?

25 A. Yes, sir.

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

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

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

4 they were clean of discoloration.

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

6 marked for identification. Do you recognize that?

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

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

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

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

11 looked when you first saw it?

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

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

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

15 when you saw it initially, is that correct?

16 A. Yes, sir.

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

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

19 identification. Do you recognize those items?

20 A. Yes, sir.

21 Q. What do you recognize them to be?

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

23 Q. When did you first see that?

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

25 the conference room at the PSG.

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

2 A. Yes, sir.

3 Q. What about Government's Exhibit 308 for

4 identification? Do you recognize that?

5 A. Yes, sir.

6 Q. What do you recognize it to be?

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

8 Murad --


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

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

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

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

14 doing everything together.

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

16 see it?

17 THE WITNESS: I first saw this in the conference

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

19 Q. Are the three documents that you have just

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

21 for identification discolored now in the manner similar to

22 other exhibits that you have been testifying about?

23 A. Yes, sir.

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

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

2330 1 identification?

2 Q. Major Ferro, do you recognize those three

3 exhibits?

4 A. Yes, sir.

5 Q. When did you first see them?

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

7 Presidential Security Group.

8 Q. Are they discolored as well?

9 A. Yes, sir.

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

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

12 identification.

13 Q. Do you recognize those items?

14 A. Yes, sir.

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

16 them.

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

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

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

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

21 C.

22 Q. Do you recognize those?

23 A. Yes, sir.

24 Q. When did you first see those?

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

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

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

3 Exhibit 315B is already in evidence.

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

5 read to us what it says at the top.

6 A. It says Jinnah Postgraduate Medical Center

7 Karachi, Department of Opthalmology discharge card.

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

9 from that particular institution?

10 A. Yes, sir.

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

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

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

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

15 identification.

16 Q. Do you recognize those documents?

17 A. Yes, sir.

18 Q. When did you first see them?

19 A. January 7.

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

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

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

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

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

25 with an arrow.

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

2 right?

3 A. Yes, sir.

4 MR. SNELL: Exhibits 318A through C for

5 identification and 319 for identification.

6 Q. Do you recognize those exhibits?

7 A. Yes, sir.

8 Q. Where did you first see those?

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

10 Q. Were those among the documents that you collected

11 at that location at that time?

12 A. Yes, sir.

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

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

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

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

17 and tell us whether you recognize it.

18 A. Yes, I recognize it, sir.


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

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

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

23 fictitious. It did not exist.

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

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

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

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

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

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

5 A. Yes, sir.

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

7 of a number of cards, is that right?

8 A. Yes, sir, there are many.

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

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

11 321E for identification.

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

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

14 there?

15 A. Yes, sir.

16 Q. What do you recognize those to be?

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

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

19 Q. Do you remember seeing such cards previously?

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

21 from these copies.

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

23 different in size, for the first time?

24 A. Here, sir.

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

2334 1 portrayed there?

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

3 PSG on the 7th of January 1995.

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

5 identification. Do you recognize that?

6 A. Yes, sir.

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

8 be?

9 A. This exhibit contains one picture and

10 accompanying paper is the envelope that seems to contain the

11 pictures, but now the envelope is discolored.

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

13 the first time?

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

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

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

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

18 A. Yes, sir.

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

20 identification to be?

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

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

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

24 the back side of these ID cards.

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

2335 1 photographs of the actual items?

2 A. Yes, sir.

3 Q. Is anything else pictured in those photographs?

4 A. There is a spare picture.

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

6 identified?

7 A. Yes, sir.

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

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

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

11 the witness Exhibit 322 for identification.

12 Q. Do you recognize that?

13 A. Yes, sir.

14 Q. When did you first see that item?

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

16 Q. What is it?

17 A. This is the spiral notebook that I mentioned

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

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

20 don't recognize.

21 Q. Is Government's Exhibit 322 for identification

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

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

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

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

2336 1 on this notebook.

2 Q. Aside from these changes that you have just

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

4 item?

5 A. Now there are page numbers and the discoloration

6 is different.

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

8 condition as it was when you first saw it?

9 A. Yes, sir.


11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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

2 to offer the exhibits that the witness has been testifying

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

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

5 THE COURT: Yes. All right, ladies and

6 gentlemen.

7 (Jury excused)


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

10 (Recess)

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

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

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

14 objection.

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

16 are not offering the dictionary, which is 307 for

17 identification, for the reasons stated previously.

18 Otherwise, everything that has been identified is being

19 offered.

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

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

22 believe to be a sticker which would be a fingerprint

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

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

25 that the jury should see this.

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

2 that.

3 MR. GREENFIELD: There are a bunch of these

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

5 THE COURT: Eventually I assume there will be a

6 fingerprint guy.

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

8 THE COURT: You have gotten the fingerprint --

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

10 before we began the trial.

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

12 happy, all in together.

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

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

15 like that?

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

17 Honor, that have the various fingerprints identified by

18 name.

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

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

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

22 not now.


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

25 first.

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

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

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

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

5 connection between these items and room 603. The only

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

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

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

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

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

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

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

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

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

15 Presidential Special Group or whatever the place is called,

16 and that ties it in quite neatly.

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

18 your Honor said.

19 THE COURT: That ties it in quite neatly.

20 MR. KULCSAR: My understanding is that the

21 testimony from before was that someone retrieved a bag or

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

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

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

25 them to the PSG --

2340 1 THE COURT: And putting them on the conference

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

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

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

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

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

7 offering the chemical dictionary are articulated on the

8 record.

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

10 about it --

11 THE COURT: Nobody requires that you offer it.

12 What is the difference? Nobody requires that you offer

13 something after it is identified. There is no requirement

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

15 been offered since --

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

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

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

19 offered.

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

21 moment to look at them?

22 THE COURT: Sure.

23 (Pause)

24 THE COURT: Do you have anything else for this

25 witness?

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

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

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

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

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

6 like to pass the exhibits that do not have fingerprint

7 identification tags to the jury at this time.

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

9 it? They are in evidence.

10 305 is some pages apparently from a multivolume

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

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

13 number of these pages.

14 308, the document marked at the top "Translated

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

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

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

18 Ali Hassam Murad.

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

20 for cash sale.

21 310 is another such receipt from the same

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

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

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

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

2342 1 numbers after it. That is 311A.

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

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

4 also names and apparently phone numbers.

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

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

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

8 written on it, along with some numbers.

9 312 for identification appears to be two Easy

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

11 more than that.

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

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

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

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

16 A guarantee registration card, 313B, from

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

18 And a receipt from the Multi Watch Center

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

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

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

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

23 You have 315, hospital outpatient discharge from

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

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

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

2 of diagnosis.

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

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

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

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

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

8 Singapore Airlines.

9 My guess is a cover for their airline tickets,

10 316B, covered with Chinese writing.

11 A through check-in card from Singapore Airlines.

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

13 317A, apparently an airline ticket from Singapore

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

15 has an FBI identification number.

16 317B is a boarding pass with an FBI

17 identification number on it, and apparently fingerprints on

18 it also.

19 317 appears to be an airline ticket cover from

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

21 "airline services."

22 A strip of paper, perhaps a cash register

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

24 An identification card from West London

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

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

2 318B is the same type of West London Scientific

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

4 picture on it.

5 318C are apparently blank such cards, I would

6 guess about four or five.

7 319 is International Trading Corp. identification

8 cards, a group of them.

9 321A, an International Trading Corp.

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

11 chemical specialist, bearing a picture.

12 321 is an International Trading Corp.

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

14 specialist, bearing a picture.

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

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

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

18 identification cards from the International Trading Corp.,

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

20 back. That is 321D and E.

21 And finally, 322, a green spiral notebook with

22 all kinds of indications of fingerprints inside, leafing

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

24 That is all of them?

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

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

2 jury, bring in the witness.

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

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

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

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

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

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

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

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

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

12 fingerprints are on them.

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

14 the fingerprint stuff stays out for now.

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

16 items that do not have fingerprint identification marks

17 which I can read into the record.

18 THE COURT: Sure.

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

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

21 and E.


23 (Jury present)

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

25 witness now?

2346 1 MR. SNELL: Sure.

2 BY MR. SNELL:

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

4 presented with a certificate from the United States

5 government commending your performance in this

6 investigation?

7 A. Yes, sir.

8 Q. More recently were you approached to find out

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

10 testify at this trial?

11 A. Yes, sir.

12 Q. Has the United States government paid for your

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

14 meal and witness allowance?

15 A. Yes, sir.

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

17 United States government is paying your salary by the

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

19 result of your testimony in this trial?

20 A. Yes, sir.


22

23

24

25

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

2 Honor.

3 THE COURT: There are some documents that you

4 want to show the jury, right?


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

7 out, Lillie?

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

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

10 Ladies and gentlemen, while you folks were out of

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

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

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

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

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

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

17 put on the air conditioning.

18 (Pause)

19 THE COURT: All right, Mr. Yousef.



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

23 a member of the Philippine National Police has been sitting

24 in the courtroom?


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

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

3 DEFENDANT YOUSEF: Yes, sir.

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

5 there another member of the Philippine National Police in

6 the courtroom during your testimony?

7 A. Yes, sir.

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

9 A. Chief inspector, sir.

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

11 A. Major De Los Reyes.

12 Q. Is he your superior in the Philippine National

13 Police?

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

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

16 National Police he works with.

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

18 know he belongs to the directorate for intelligence.

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

20 Philippine Constabulary, is that correct, sir?

21 A. Yes, sir.

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

23 Constabulary?

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

25 forces of the Philippines.

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

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

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

4 military line.

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

6 first joined them?

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

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

9 Philippine Constabulary?

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

11 Constabulary, my primary duty was counterinsurgency, and we

12 were going after the rebel communists.

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

14 Constabulary or the civilian part of it?

15 A. It is the military.

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

17 A. 1989.

18 Q. In 1991, you joined the Philippine National

19 Police, am I correct, sir?

20 A. Yes, sir.

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

22 sir?

23 A. Yes, sir.

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

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

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

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

3 orders are given.

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

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

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

7 rank if the order hasn't been given.

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

9 become a major?

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

11 Maybe after three months.

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

13 test?

14 A. I was promoted because of some meritorious

15 activity that I completed in the year of 1994.

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

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

18 A. Yes, sir.

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

20 A. Could you please repeat the question.

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

22 call.

23 A. I received that call before 8.

24 Q. Is that 8 in the morning?

25 A. Yes, sir.

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

2 A. I was at home.

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

4 call?

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

6 Q. Is that in the Presidential Security Group?

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

8 Command, he is not with the PSG.

9 Q. Where are his offices located, sir?

10 A. At Camp Crame.

11 Q. When did you arrive there, sir?

12 A. About 8.

13 Q. 8 in the morning?

14 A. Yes, sir.

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

16 office?


18 THE COURT: No, go ahead, answer.

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

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

21 at 8:00.

22 DEFENDANT YOUSEF: Your Honor, would this be the

23 right time to break now?

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

25 minutes.

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

2 arrived to Colonel Garcia's office?

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

4 to the PSG headquarters in Malacanang Park in Manila.

5 Q. When did you arrive there, sir?

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

7 about the exact time.

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

9 office to the Presidential Security Group's office?

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

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

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

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

14 did I arrive at PSG?

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

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

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

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

19 see there?

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

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

22 there.

23 Q. Were they all wearing military uniforms?

24 A. What I remember was they were in civilian

25 clothes.

2353 1 Q. Recalling to your testimony when you first

2 entered the room there were documents spread over the table

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

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

5 papers were just thrown about or scattered about?

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

7 room when you entered.

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

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

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

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

12 arranged all along the table.

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

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

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

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

17 were Colonels Ferrer and Razon.

18 Q. Would you tell us approximately what is the

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

20 or 10?

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

22 THE COURT: Give us an approximation. That is

23 like a guess.

24 A. Maybe 10 including us.

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

2354 1 Taas?

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

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

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


6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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

2 time to break?

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

4 gentlemen.

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

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

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

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

9 of my business. I don't care.

10 Go ahead.

11 (Jury excused)

12 THE COURT: All right, step down.


14 THE COURT: 2:00, promptly.


16

17

18

19

20

21

22

23

24

25

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

2 2:00 p.m.


4 ALBERT FERRO, resumed, through the interpreter.




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

9 Taa?

10 A. Yes, sir.

11 Q. Do you know him, sir?

12 A. Yes, I know him now.

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

14 entered the conference room of the Presidential security

15 group on January 7, 1995.

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

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

18 room.

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

20 did anyone photograph or videotape the items which were

21 there?

22 A. I don't remember, sir.

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

24 the items which were there at that time?

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

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

2 entrusted with taking the documents and the laptop computer

3 away.

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

5 the conference room on January 7, 1995?

6 A. Yes, sir.

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

8 withdrawn.

9 Sir, do you have this inventory with you?

10 A. No, sir.

11 Q. Was it handwritten or was it typed?

12 A. I wrote it with my own hand.

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

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

15 office.

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

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

18 Philippines?

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

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

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

22 bring it to the United States?

23 Q. Yes, sir.

24 A. No, sir.

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

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

2 the information which was stored in the computer?

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

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

5 familiar with that computer.

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

7 to the computer while you were there?

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

9 that computer when I was in that room.

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

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


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

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

15 that unsuccessful attempts were made at the time when the

16 computer was in the conference room?


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

19 A. No, sir.

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

21 on March 7, 1995?

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

23 meeting with the FBI in March.


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

2359 1 identification.

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

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

4 page.

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

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

7 time when you saw the computer unsuccessful attempts were

8 made at this time to gain access to the information

9 contained in the computer?

10 A. No, sir.

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

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

13 that when you saw the computer the first time unsuccessful

14 attempts were made --

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

16 Mr. Yousef, the objection will be sustained.

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

18 the FBI that unsuccessful attempts were made at that point

19 when you saw the computer the first time?

20 MR. SNELL: Same objection.

21 THE COURT: Asked and answered.

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

23 security office back to your office?

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

25 after lunch.

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

2 was?

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

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

5 of the Presidential security group office?

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

7 Razon and Col. Ferrer.

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

9 items with you to your office?

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

11 the PSG headquarters were the documents and the laptop

12 computer.

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

14 them in?

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

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

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

18 the conference room did anyone from the Philippine National

19 Police or the Presidential security group remove any items

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

21 A. I didn't notice.

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

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

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

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

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

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

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

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

5 located?

6 A. It's inside Camp Crame.

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

8 your office, sir?

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

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

11 before doing any of that.

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

13 the computer on by yourself?

14 A. No, sir.

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

16 Richard Macachor?

17 A. Yes, sir.

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

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

20 thought of asking him.

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

22 expert?

23 A. To my understanding his classification in our

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

25 best to call him.

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

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

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

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

5 and not I.

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

7 he arrived?

8 A. When he arrived.

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

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

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

12 personnel of Jingo Rivel is also well versed in computers

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

14 Jingo Rivel to do that.

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

16 with the computer?

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

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

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

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

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

22 what was in the computer.


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

25 ahead.

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

2 to assist you with the computer?

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

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

5 Sunday evening or Monday.

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

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

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

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

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

11 Garcia.

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

13 the computer, sir?

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

15 Q. Mr. Rivel, sir.

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

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

18 get any more information from the computer then I would

19 return the computer to my cabinet.

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

21 computer working with the computer?

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

23 maybe 30 minutes.

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

25 worked with the computer?

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

2 when?

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

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

5 front of you?

6 A. No, sir.

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

8 access to the computer?

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

10 recall what date?

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

12 computer when it was in your office?

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

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

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

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

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

18 that would be a period of 30 minutes.

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

20 working with the computer in your office?

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

22 period when he had access to the computer.

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

24 finished working with the computer, was there anyone else

25 who attempted to gain access to the information of the

2365 1 computer?

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

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

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

5 gain access to the information stored in the computer?

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

7 Q. After the afternoon did anyone else gain access

8 to the contents of the computer?

9 A. Do you mean the night, sir?

10 Q. Any time.

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

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

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

14 that time?

15 A. Yes, at night.

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

17 attempted to begin access to the contents of the computer

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

19 the computer?

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

21 copied anything from the computer.

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

23 after you turned it over?

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

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

2366 1 else?

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

3 custody of the computer after you turned it over?

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

5 THE INTERPRETER: Rephrase.

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

7 day the computer was returned to Col. Garcia.

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

9 did you ever see the computer again after that?

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

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

12 taking care of the computer.

13 Q. And when was that, sir?

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

15 that computer from the office to Col. Garcia.

16 Q. When was that, sir?

17 A. I remember it was Wednesday by then.

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

19 stayed in the custody of Col. Delfin?

20 A. Perhaps one day.

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

22 you got it back from Col. Garcia?

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

24 to secure it.

25 Q. What happened next to the computer?

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

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

3 in my locker.

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

5 locker, sir.


7 again, please?

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

9 locker?

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

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

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

13 when we would gain access into the computer to compare

14 information.

15 Q. And when was that, sir?

16 A. I couldn't remember, sir.

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

18 computer?

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

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

21 information on the computer?

22 A. I myself would compare the information from the

23 computer with information from the documents that I

24 collected from the PSG conference room. Especially I was

25 interested in information regarding chemicals that was

2368 1 displayed on the screen of the computer.

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

3 which related to chemical items?

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

5 remember.

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

7 information alleged to be obtained by Richard Macachor when

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

9 A. No, sir.

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

11 computer?

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

13 computer printout.

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

15 when it was in your office?

16 A. Are you pertaining to the laptop computer?

17 Q. Yes, sir.

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

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

20 computer when it when it was in your office?

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

22 information that we needed printout and it was Richard

23 Macachor who printed it out.

24 Q. Which one was that, sir?

25 A. It was that piece of document called Bojinka

2369 1 which contained the flight schedules of American aircraft.

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

3 contents of the computer?

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

5 may be in January.

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

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

8 January.

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

10 A. Yes, sir.

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

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

13 in your office?

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

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

16 incompatible.

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

18 office?

19 A. What I remember, yes.

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

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

22 THE COURT: Sure.

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

24 witness)

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

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

2 you turned over to Col. Delfin?

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

4 I turned over to Col. Delfin.

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

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

7 was first switched on?

8 A. Yes, sir.

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

10 first switched on?

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

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

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

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

15 computer.

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

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

18 touched or pressed on the keyboard?

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

20 there was no light.

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

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

23 this screen?

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

25 couldn't tell you what was written or designed on the

2371 1 screen.

2 Q. Can you tell us, was it a drawing or a writing?

3 A. I wouldn't remember.

4 Q. Now, sir, do you know a police inspector by the

5 name of Joe Cruz?

6 A. Inspector Cruz, sir?

7 Q. Yes, sir.

8 A. Yes, sir, I know someone, I remember someone.

9 Q. Did you know him on January 7th of 1995?


11 again?

12 Q. Did you know him on January 7th of 1995?

13 A. On the 7th of January I didn't know him yet. I

14 just got to know him in this in the following months when we

15 started coordinating our work.

16 Q. Now, sir, do you recall if you saw him at any

17 time in the conference room of the Presidential security

18 group on January 7, 1995, after you entered?

19 A. Because I didn't know him at that time I couldn't

20 tell you if I saw him or he was, or if he was in that room

21 but it's possible.

22 Q. Now, sir, was it your testimony that Major

23 Phillipps of the intelligence unit sent certain items to

24 you?

25 A. He turned over documents and some books.

2372 1 Q. When was that, sir?

2 A. To my knowledge this happened after the search

3 warrant was returned, and books and documents had been

4 turned over to him.

5 Q. When did he turn over these items to you?

6 A. Actually these items were not turned over to me.

7 Rather I borrowed these from him so that I could relate the

8 documents that I had regarding chemicals and so I could

9 study, for example, the manual regarding bomb making and the

10 manuals about timers.

11 Q. Sir, my question was when did this happen?


13 Q. And where did this happen, sir?

14 A. I borrowed these items from him the week after

15 the 7th or the 8th, but I don't remember exactly when.

16 Q. Now, sir, where did this happen? Was it in your

17 office or did you go to his office?

18 A. At his office.

19 Q. Did you call him and ask him to bring these

20 items?

21 A. No, sir. I learned that he had other documents

22 in his possession and I wanted to find if there was any

23 relation between the documents that I had and those that he

24 had.

25 Q. Sir, did you call him and ask him to bring these

2373 1 items to you or was he the one who called you?

2 A. What I remember was I called, I may have called

3 him if I can borrow the documents that he had so that I

4 could compare them to documents that I took from the PSG

5 conference room on the 7th of January.

6 Q. After you borrowed these items from him did you

7 turn them over back to him?

8 A. What I remember was that eventually I got custody

9 of these items like the book and the manual for bomb making

10 and the manuals for timers.

11 Q. Sir, when you said you borrowed these items from

12 Major Phillipps did you turn them over back to him?

13 A. I was not able to return these items to him

14 because subsequently the FBI borrowed, asked to borrow these

15 items to take to the United States, so that they may lift

16 fingerprints from the dictionary and other manuals.

17 Q. Sir, was it your testimony that you went to his

18 office in order to pick up these items?

19 A. Yes, sir.

20 Q. And where is that, sir, where are his offices

21 located?

22 A. At the intelligence command.

23 Q. Is that in Camp Crame?

24 A. Yes, sir.

25 Q. Now, sir, when did you first learn that Major

2374 1 Phillipps had these items?

2 A. I was informed that other documents were with

3 him.

4 Q. How did you know that, sir?

5 A. I'm not sure, but perhaps the person who informed

6 me was Col. Garcia.


8 your Honor.

9 THE COURT: Ms. Barrett.


11 BY MS. BARRETT:

12 Q. What time did you arrive at the Malacanang Park

13 at the PSG offices?

14 A. I arrived there at approximately 9 in the

15 morning.

16 Q. And the pipe that you previously identified was

17 it there at that time?


19 again, please?

20 Q. The pipe that you previously identified, was it

21 there at that time?

22 A. I did see a pipe like that pipe at the room, at

23 the conference room of the PSG.

24 Q. Where in the conference room did you see it?

25 A. It was on that table at the conference room.

2375 1 Q. And the watch was also on that table?

2 A. Yes, ma'am.

3 Q. Did you see an attache case?

4 A. Yes, ma'am.

5 Q. Do you know Major Angeles?

6 A. Yes, ma'am.

7 Q. Do you know Lt. Mike Cruz?

8 A. I got to know him after this incident.

9 Q. When you were there that morning did he, was he

10 present at that time?

11 A. It's possible that he may have been in that room

12 but because I did not know him yet at that time I couldn't

13 tell you for sure.

14 Q. When you saw the attache case was there any items

15 in there?

16 A. I saw the pipe and a piece of paper but I don't

17 know what that paper is.

18 Q. The pipe was in the attache case?

19 A. What happened was they opened the attache case

20 and removed the pipe from inside the attache case. That's

21 when I saw the pipe.

22 Q. Do you recall who opened the attache case?

23 A. What I can be certain of and assure you of is

24 that the person was from the EOD.

25 Q. And how long after that date did you meet Lt.

2376 1 Cruz?

2 A. We had different duties at that time but a time

3 came when we had one particular job to do that covered the

4 western police district and I coordinated this effort. This

5 was possibly two to three months later.

6 Q. Do you recall seeing items being placed back in

7 the attache case?

8 A. Ma'am, I was not able to, I can't assert if any

9 items were being put back into the attache case because my

10 line was not connected with explosives, so I couldn't tell

11 you for sure.

12 Q. How many people were from intelligence command

13 group that went to Malacanang Park?

14 A. We were three, ma'am, Col. Garcia, Col. Delfin

15 and myself.

16 Q. And you met with officers of the PSG?

17 A. The PSG officials that I knew and that we spoke

18 with were Col. Razon and Col. Ferrer.

19 Q. Now, during that, there was a meeting between the

20 PSG officers and the officers of the intelligence command

21 group?

22 A. Yes, ma'am.

23 Q. Now, was the attache case in the room when you

24 arrived?

25 A. Yes, ma'am.

2377 1 Q. And how long were you there before it was opened?

2 A. When we first got there they showed it to us

3 because it was the PSG who was briefing us as to these items

4 that they discovered.

5 Q. Do you recall whether a video camera was used

6 during that meeting?

7 A. I couldn't tell for sure, but it could, I believe

8 it's important that they take a video footage of such items

9 because they're important.



12 THE COURT: Yes. You didn't see one, is that

13 what you're telling us?

14 THE WITNESS: I didn't notice anyone videotaping.

15 THE COURT: All right. That, ladies and

16 gentlemen, is the answer. Forget the other one. Next

17 question.

18 Q. Now, as to the exhibits that you first saw at the

19 PSG offices on January 7th were they already on the table

20 when you got to the conference room?

21 A. Yes, ma'am.

22 Q. And did you ever see any of those exhibits prior

23 to you seeing them on that table?

24 A. No, I hadn't. I saw those items for the first

25 time that day.

2378 1 Q. And you didn't see who put those items on that

2 table?

3 A. When we got to, when we got there all these

4 items, the documents, the laptop computer, the briefcase

5 were all laid out on top of the table.

6 Q. You didn't see who put them there, did you?

7 A. No, ma'am.

8 Q. How long after you were at the PSG offices did

9 you see Mr. Murad?

10 A. When we first got there I didn't see him. I saw

11 him as we were leaving.

12 Q. Where did you see him first?

13 A. As we were leaving.

14 Q. Where was Mr. Murad when you first saw him?

15 A. We were entering our vehicle when I saw him.

16 Q. Who was he with?

17 A. I believe that it was officials from the PSG who

18 were escorting Mr. Murad so that he could be turned over to

19 us.

20 Q. Now, how long were you at the office before you

21 decided to leave?

22 A. What I remember was that after we had lunch then

23 we started to leave and we saw Mr. Murad.

24 Q. How long was the meeting?

25 A. We got there perhaps about 9 in the morning and

2379 1 we stayed there until after, after lunch around 12 noon, and

2 we left the premises by the afternoon.

3 Q. Is it fair to say that if you arrived at 9 and

4 left at about 12 that you were there for around three hours?

5 A. I couldn't tell you exactly how much time we

6 stayed there because. I'm not well versed in that. I'm not

7 sure what time we left, 12:30 or 1 o'clock.

8 Q. Well, you said after lunch. Did you take a lunch

9 break during the meeting?

10 A. What I remember was we had lunch in that

11 conference room of the PSG.

12 Q. Did the meeting continue between the intelligence

13 command group and the PSG officers while you were having

14 lunch?

15 A. Yes, ma'am.

16 Q. And throughout the entire time you were there

17 were you always in the meeting place in the PSG offices?

18 A. Yes, ma'am.

19 Q. And during the entire time when were you in the

20 meeting room, in the room that you were meeting you never

21 saw Mr. Murad?

22 A. Yes, ma'am.

23 Q. Yes, ma'am, you did not see him, or yes, ma'am

24 you saw him?

25 A. Yes, ma'am, that I did not see him while we were

2380 1 having the meeting inside the PSG conference room.

2 Q. Now, at what point did you take -- withdrawn.

3 When you left the PSG offices you took possession

4 of documents that you said that were on the table?

5 A. Yes. Col. Garcia gave me instructions to gather

6 the documents and the laptop computer. We were given the

7 duty to study the documents and the laptop computer.

8 Q. And then you said you left to go back, you left

9 the PSG offices?

10 A. We left the room and as we were going towards our

11 vehicle Mr. Murad was turned over to us.

12 Q. Now, when you say as you're going towards your

13 vehicle, is it fair to say that you already left the

14 building before you saw Mr. Murad?

15 A. The PSG compound is one compound. It's a fenced

16 restricted area. So the building where the conference room

17 was in the compound, the vehicle was inside that compound.

18 When we left the office the vehicle was still inside the

19 compound. So when Mr. Murad was turned over to us we were

20 still inside.

21 Q. Inside the building or inside the compound?

22 A. Inside the compound.

23 Q. But that was outside the building?

24 A. It's outside the office.

25 Q. Now, let's see if I can clarify this. The

2381 1 compound is a fenced-in area you said. Is that correct?

2 A. Fenced in.

3 Q. Does the compound consist of a building and an

4 outside area?

5 A. For us when we say, when you say building we mean

6 a structure of several stories high. The office is a

7 bungalow type of structure, so I couldn't say that it was a

8 building. It was just an office.

9 Q. How many structures are on the compound?

10 A. There were several structures within that

11 compound.

12 Q. And the office that you were in was in one of

13 those structures?

14 A. No, ma'am.

15 Q. The office that you were having the meeting with

16 the PSG officers, is that office in one of those structures

17 on the compound?

18 A. Yes, ma'am.

19 Q. And it was after you left that structure you got

20 outside that you saw Mr. Murad?

21 A. Yes, ma'am, but that structure where we had the

22 meeting right outside the structure where we had the meeting

23 was our vehicle, was where our vehicle was parked, and so

24 when we left the conference room heading towards our vehicle

25 we saw him right there. We don't know, I don't know where

2382 1 he came from.

2 Q. Now, the structure in which you had the meeting

3 is it one story or more than one story?

4 A. What I remember was it was just one floor.

5 Q. So when you left the building or the structure to

6 go to your parking area, did you exit through a door; is

7 that correct?

8 A. Yes, ma'am.

9 Q. Now, while you were in the meeting did you notice

10 an adjacent room that was near the conference room?

11 A. I didn't notice any adjacent room at that time.

12 My attention was focused on studying the documents so I had

13 no chance to leave the conference room and check out any

14 adjacent rooms.

15 Q. You didn't see Mr. Murad coming out of this

16 structure that you exited from; is that correct?

17 A. When we were heading towards the vehicle I saw

18 him approaching us, but I could not know notice or I could

19 not take note where he was coming from because I had, in one

20 hand I had a box filled with documents and I had the laptop

21 computer on the other hand. So I didn't know where he came

22 from, whether he exited from a building.

23 Q. You said that as you're going to your car -- how

24 far from the structure that you exited was your car parked?

25 A. It's very near the exit, ma'am.

2383 1 Q. And you said Mr. Murad was coming towards you?

2 A. The situation was we were heading towards the

3 vehicle from one side and we saw him approaching from the

4 other side.

5 Q. So is it fair to say that he was coming from

6 another direction towards you?

7 A. Yes, you may.

8 Q. And who was with Mr. Murad at that time?

9 A. I don't remember this person but I understood him

10 to be a personnel of PSG.

11 Q. How many persons was with Mr. Murad?

12 A. I remember only one person.

13 Q. Was Mr. Murad blindfolded?

14 A. Yes, ma'am.

15 Q. Was he handcuffed?

16 A. Yes, ma'am.

17 Q. Were his feet shackled?

18 A. No, ma'am.

19 Q. Who turned over Mr. Murad to you?

20 A. Actually Mr. Murad was not turned over to me.

21 Rather he was turned over to my boss, Col. Garcia.

22 Q. When you exited the building where was Col.

23 Garcia?

24 A. He was with me.

25 Q. And what did Col. Garcia do after he -- did there

2384 1 come a time when he took custody of Mr. Murad?

2 A. We were only three at the time and the driver was

3 being Col. Delfin and I was carrying these documents myself,

4 so the laptop computer myself, so we just put him in the

5 vehicle with us.

6 Q. Could you repeat the last one?

7 A. And so we just put him in the vehicle with us.

8 THE COURT: Okay. We'll find out what happened

9 next after. We're taking our break now.


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2385 1 (Jury, witness, interpreter not present)

2 THE COURT: Are you in pain, Roy? Do you have a

3 back ache or something? I saw you standing up before.

4 MR. KULCSAR: Yes.

5 THE COURT: That's all right. If you feel better

6 standing up, stand up.

7 MR. KULCSAR: I took some medication. Thanks,

8 your Honor.

9 (Recess)


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2386 1 (In open court; jury present)



4 BY MS. BARRETT:

5 Q. Major Ferro, when you left the PSG offices you

6 said Mr. Murad went with you and Col. Garcia?

7 A. Yes, ma'am.

8 Q. How many people were in the car?

9 A. We were only three so we proceeded to Camp Crame

10 right away.

11 Q. And how far is PSG office from Camp Crame?

12 A. I don't know the exact distance of Camp Crame

13 from Malacanang, but if there is no heavy traffic it could

14 be thirty minutes and in heavy traffic it could be more than

15 an hour. Malacanang is located in a very busy section of

16 metro Manilla.

17 Q. Do you remember how long it took you that day to

18 get to Camp Crame?

19 A. I estimate 40 to 45 minutes before we got to Camp

20 Crame.

21 Q. And was Mr. Murad blindfolded during the entire

22 ride?

23 A. Yes, ma'am.

24 Q. And was he also handcuffed during the ride?

25 THE INTERPRETER: Could you repeat, please?

2387 1 MS. BARRETT: Handcuffed.

2 A. Yes, ma'am.

3 Q. Now, what happened when you got to Camp Crame?

4 Where was Mr. Murad placed?

5 A. What I know is that he was taken to a detention

6 room that's provided with a cot and electric fan. That's

7 where he stayed.

8 Q. Now, what time was it that you got to Camp Crame?

9 A. It was afternoon by then.

10 Q. And who took him to the detention room?

11 A. It was Col. Garcia asked someone to take care of

12 Mr. Murad and to secure him.

13 Q. Do you know that someone?

14 A. What I remember was the person who had such a

15 duty Major Sonny Phillipps.

16 Q. Was it Major Phillipps that Col. Garcia

17 instructed to take Mr. Murad to the detention room?

18 A. I did see Major Phillipps actually giving -- I

19 didn't see Col. Garcia actually giving Major Phillipps this

20 order but I found out he was given the responsibility to

21 take care of the security.

22 Q. When you got to Camp Crame with Mr. Murad and

23 Col. Garcia where did you go?

24 A. When we got to Camp Crame I went to my office and

25 secured the laptop computer in my steel locker, and I

2388 1 started studying the documents.

2 Q. When you left to go to your office where was Mr.

3 Murad?

4 A. I saw him heading down and along with a person

5 who was given the responsibility of bringing him to the

6 detention room, they proceeded.

7 Q. Do you know the name of the person that was

8 taking him to the detention room?

9 A. No, ma'am.

10 Q. Where was Col. Garcia at that time?

11 A. To my knowledge he followed to the detention

12 room.

13 Q. Now, how far is your office from the detention

14 room?

15 A. The detention room is about two to three minutes

16 walk from my office.

17 Q. Can you tell us in distance how far it is?

18 A. May I guess or can I approximate the distance?

19 Q. You may approximate.

20 A. Perhaps two hundred meters, ma'am.

21 Q. The building that your office is in, how many

22 stories does that building have?

23 A. Our office is a two-story building.

24 Q. What floor is your office on?

25 A. Our office is on the first floor.

2389 1 Q. How many offices are on the first floor in that

2 building?

3 A. There are many offices.

4 Q. The detention -- withdrawn.

5 What floor is the detention room on?

6 A. It's in another building but within the

7 intelligence compound.

8 Q. How far is this building where the detention

9 center was, how far is it from your building where your

10 office is located?

11 A. The way our compound is structured is that there

12 is a parking lot in the middle, and the different buildings

13 are equidistant from this parking lot so I would say

14 possibly two hundred meters -- 150 to two hundred meters.

15 Q. In this building where the detention room was

16 located what other rooms -- withdrawn.

17 Are there any offices in that building?

18 A. That particular building where the detention room

19 is there was a fire on the upper floor of that building

20 where the detention room is found.

21 Q. How many floors does that building have?

22 A. I think there was one.

23 Q. And you said there was a fire in that building?

24 A. I'm not sure exactly when, but possibly in 1994

25 the ceiling had been burned in the fire.

2390 1 Q. So the building, there is no ceiling in the

2 building?

3 A. The ceiling of that structure was only partially

4 burned. The ceiling didn't fall, didn't totally crash in

5 the fire.

6 Q. How many detention rooms are in that building?

7 A. What I know is there's one detention room there

8 that was being used.

9 Q. Other than a detention room is that building

10 being used at all?

11 A. From time to time.

12 Q. What is it used for?

13 A. Occasionally when we have more supplies than can

14 be stored in the regular supply room these are kept in this

15 building. As for regular office use of that building, it's

16 not of that use.

17 Q. So the only use other than storage is a detention

18 room that is used there; is that correct?

19 A. We have a regular prison cell but since this was

20 a special case our boss ordered us that he should be put in

21 a room that would be more comfortable rather than in a

22 regular prison cell.

23 Q. After the fire was there any effort to

24 reconstruct the building?

25 A. I don't know the details regarding restructuring

2391 1 this building, but based on budget constraints renovation

2 has been partial and slow because the funding has been slow

3 in coming.

4 Q. You said there was a cot and a fan in that room?

5 A. Yes, ma'am.

6 Q. And there was no -- how large is the room?

7 A. I would estimate that it's possibly as large or

8 slightly smaller than the area where the jury sits or maybe

9 half.

10 Q. Was Mr. Murad kept there the entire time that he

11 was in the custody of the intelligence command group?

12 THE INTERPRETER: Can the interpreter hear that

13 again, please.

14 MS. BARRETT: Could you please read it back.

15 (Record read)

16 A. There are times particularly on Friday when it's

17 his day to pay respect to his religion when he's moved from

18 that room to another room where he could pray, and when

19 interviews are conducted. Then he's taken to another room

20 where there is a table and there is seating.

21 Q. Now, you said you went to your office. Do you

22 recall what time you went to your office?

23 A. When we arrived at the camp, Mr. Murad was taken

24 to the detention room. As he was being taken to the

25 detention room I went to my office at the same time so I

2392 1 could secure the laptop computer and the documents.

2 Q. Now, did you yourself try to access the computer

3 prior to contacting Mr. Macachor?

4 A. No, ma'am, because I was worried of perhaps

5 erasing any information there until the person who was well

6 versed in it came.

7 Q. How long after arriving at your office did

8 Mr. Macachor arrive there?

9 A. I had Mr. Macachor be on standby. It was

10 Saturday that time and we didn't have the regular personnel

11 around and I even had to ask someone to search for him. And

12 I focused my attention first on studying the documents.

13 Q. How long after you got to your office did

14 Mr. Macachor get to your office after you found him?

15 A. By late afternoon he arrived and I had him stand

16 by and I told him just to sit tight and wait and let me

17 study the documents before we go into the computer.

18 Q. Where was Mr. Macachor when you were studying the

19 documents?

20 A. He stayed in the vicinity of our branch office in

21 the vicinity of the special investigation group.

22 Q. How long did you study those documents?

23 A. I studied them for sometime, for a long time. I

24 had to compare the information from these notes with notes

25 that I had, notes and dates that I have from other previous

2393 1 day that we have in the office. I had to go over the papers

2 one by one so as not to let any information slip by.

3 Q. Do you recall how long it took you to do that?

4 A. Perhaps by late afternoon to the evening.

5 Q. Would that be more than two hours?

6 A. Yes, ma'am.

7 Q. Would it be more than three hours?

8 A. I spent a long time in studying the documents

9 because I would go back and forth. I couldn't do this in

10 one sitting. Sometimes I would order one of my subordinates

11 to check the information on a business card. I'd ask him to

12 go check the office written on the business card, and to

13 verify whether this information in the document is correct.

14 Q. Were you alone in your office while you worked on

15 these documents?

16 A. I poured over the documents mostly by myself

17 until people started trickling in, people that were being

18 recalled to my office. It was the weekend so generally

19 people don't report until sometime in the late afternoon

20 because at that time a red alert had been issued because

21 there was a threat to the life of the Pope.

22 MS. BARRETT: Your Honor, may I ask that that

23 answer be stricken, the last part anyway.

24 THE COURT: The last part.

25 Q. You became a major in 1995?

2394 1 A. Yes, ma'am.

2 Q. Would that be on or about January 1 of 1995?

3 A. The activity of an order, of the order for my

4 promotion I believe was around late February of 1995.

5 Before an order is effective that order must be released and

6 published a few months before that, and sometimes the

7 publication of the order is even delayed, so you can't claim

8 your rank as a major until this order is published and

9 circulated.

10 Q. On January 7th what was your position, 1995?

11 A. What do you mean, ma'am, my rank or my position?

12 Q. Were you a major on January 7, 1995?

13 A. No, ma'am, I was a captain at that time.

14 Q. And prior to becoming a police officer was it

15 your testimony that you were in the armed forces?

16 A. Yes, ma'am.

17 Q. What was the highest rank you reached in the

18 army?

19 A. The branch of service that I participated in was

20 not in the army, but rather in the Philippine constabulary

21 and I was a second lieutenant.

22 Q. Officer, were you in any unit in which you were

23 asked to defuse any type of explosives?

24 A. Is this connected with the military?

25 Q. I withdraw that question. Yes. While were you

2395 1 in the armed forces were you ever in any unit in which you

2 were asked to defuse any type of explosive?

3 A. No, ma'am.

4 Q. As a police officer with the PNP were you ever

5 assigned to the explosive ordnance division?

6 A. No, ma'am.

7 Q. Now, did there come a time when Mr. Macachor

8 started working on the computer?

9 A. Yes, there came a time when he started the

10 computer.

11 Q. And you were present while he worked on the

12 computer?

13 A. During all the time that he was gaining access to

14 the computer I was inside.

15 Q. Inside your office?

16 A. Yes, ma'am.

17 Q. And the computer was in your office; is that

18 correct?

19 A. Yes, ma'am.

20 Q. And Mr. Macachor worked on the computer while he

21 was in your office?

22 A. Yes, ma'am.

23 Q. Was there anyone other than you and Mr. Macachor

24 in the office?

25 A. My office is segregated from, sort of separated

2396 1 from the rest of the area, so we were only two there.

2 Q. Now, how long altogether -- withdrawn.

3 What time did Mr. Macachor start working on the

4 computer on that day?

5 A. I'm not sure of the time, but it was sometime in

6 the afternoon, and as I said we would work at the computer

7 on and off, and then at other times we would have to follow

8 leads that the documents revealed and we would have to

9 follow up on these leads, and when time would come when we

10 couldn't get any more information, when he couldn't get any

11 more information from the computer, then I would return the

12 computer back into the steel locker.

13 Q. What time did he stop working on the computer

14 after he started working on it?

15 A. As I said he worked on it on and off and he

16 started at night until early morning on Sunday.

17 Q. Early morning, the approximate time he stopped

18 working on the computer?

19 A. Possibly 2, 3 to 4 in the morning.

20 Q. Did you watch him as he worked on the computer?

21 A. When the computer is on then I'd be watching it,

22 but when we're done working with the computer we turn it

23 off, and I would secure it again in the steel locker. At

24 that time he was my only, my only colleague, and he was the

25 only person I had to help me follow up the other leads.

2397 1 Q. You didn't make any printouts at that time; is

2 that correct?

3 A. Yes, ma'am.

4 Q. Mr. Macachor, did he take notes?

5 A. I don't remember if he was making notes.

6 Q. Were you taking notes?

7 A. The notes that I took were of the flight

8 schedules. This was the document entitled Bojinka, so that

9 I could ask Mr. Murad what this was.

10 Q. Now, was it you or Mr. Macachor that conferred

11 with Mr. Murad?

12 A. Myself.

13 Q. During the time that Mr. Murad was held --

14 withdrawn.

15 When did Mr. Rivel start working the computer?

16 A. I believe that on the 7th and the 8th of January

17 we didn't have Mr. Rivel working with us. He possibly came

18 the afternoon of Sunday or even Monday because that was

19 really the weekend.

20 Q. Do you remember if it was evening or morning that

21 he started working on the computer?

22 A. It could have been morning because employees of

23 intelligence command go to work about 8 o'clock in the

24 morning on Mondays.

25 Q. You finished working on the computer with

2398 1 Mr. Macachor early Sunday morning; is that correct?


3 again, please.

4 (Record read)

5 A. Yes, ma'am.

6 Q. Did you go home that day?

7 A. I went home for a very, very short while and I

8 had to return because there was a red alert and everybody

9 was on standby because there was a threat to the presence of

10 the Holy Pope.

11 MS. BARRETT: Your Honor, may I have the last

12 part of that answer be stricken?

13 THE COURT: Yes, the last part will be stricken.

14 Q. Now, when you returned back to your office that

15 Sunday do you recall if that was the day that Mr. Rivel

16 worked on the computer?

17 A. I'm not sure about that Sunday, but I'm sure that

18 Monday he was there.

19 Q. Who contacted Mr. Rivel to work on the computer?

20 A. Whether you inform a government employee

21 specifically or not he or she has to show up to work on

22 Monday because that's the start of the work week, so I'm

23 sure he was there on Monday.

24 Q. Did you instruct Mr. Rivel to work on the

25 computer that Monday?

2399 1 A. Yes, ma'am.

2 Q. And did he work on the computer in your office?

3 A. Yes, ma'am.

4 Q. Were you there while he worked on the computer?

5 A. Yes, ma'am.

6 Q. Did you leave him at any time while he worked on

7 the computer?

8 A. I don't remember such a time when I left him

9 while he was working with the computer.

10 THE COURT: Okay, ladies and gentlemen, we'll

11 pick up with this tomorrow. See you at 9:30.


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25

2400 1 (Jury; witness, interpreter, not present)

2 MR. KULCSAR: Your Honor, before the witness

3 leaves could I impose on the Court to specifically request

4 the witness please not discuss the testimony with any other

5 person that may be here from the Philippines? Obviously we

6 know the government won't talk to him, but we don't know who

7 is around him.

8 THE COURT: Suppose he has a private attorney

9 here? We can't do that.

10 I thought there was some talk before that this

11 fellow there was going to be an attempt to introduce some

12 tape through this fellow? How it gets in is thoroughly

13 beyond me, nor has there been even any conversation about

14 whether he was present or anything else. All I heard up to

15 this point he's sitting in his office doing police duty in

16 the sense that he is running down leads. I have no I idea

17 of how you intend to get it in, but it will be interesting.

18 We'll see tomorrow morning.

19 How much longer do you have, assuming you get it

20 in?

21 MS. BARRETT: Your Honor, I don't know how much

22 time because we had decided earlier that we're not going to

23 play the tape, but --

24 THE COURT: You are not going to play it, okay.

25 MS. BARRETT: Now, Mr. Murad is telling me that

2401 1 he wants to do that. So I don't know.

2 THE COURT: Mr. Murad wants to play the tape?

3 Well, I don't know how you're going to get it in. Think

4 about that.

5 MS. BARRETT: Your Honor, we had already

6 discussed it with the government. If we were going to

7 introduce the tape there would be a stipulation.

8 THE COURT: There would be a stipulation. All

9 right, fine. But what are you going to ask this witness

10 about? He's up in his office.

11 So think about it overnight. Tomorrow morning

12 9:30.

13 (Adjourned to 9:30 a.m., Thursday, July 18, 1996)


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22

23

24

25

2402 1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 ALBERT I.D. FERRO.......2308 2347

4 GOVERNMENT EXHIBITS

5 Exhibit No. Marked Received

6 305, 307, 308, 309,

7 310, 311A, 311B,

8 311C, 312, 313A,

9 313B, 314, 315A, 315C,

10 316A, 316B, 316C,

11 317A, 317B, 317C, 317C, 2345

12

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20

21

22

23

24

25

2403




22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, MIRA RIVERA

24

25

2404

1


3 THE COURT: Sit down, please. I received from

4 somebody, at least my law clerk did, a copy of Murad

5 interrogation January 7, 1995, 760-T. I don't know whether

6 my clerk was teasing me or what, he said there is something

7 in there about going to Paris. Is that true?

8 MR. KULCSAR: Yes.

9 MR. SNELL: Page 20, your Honor.

10 THE COURT: Okay. We all know that last night an

11 explosion occurred in flight 800 TWA to Paris. Now, whether

12 it was an explosion caused by the airplane itself or by some

13 object that shouldn't have been on an airplane, I have no

14 idea, and you don't either. None of us do.

15 I just assumed that the jury would hear about it,

16 and arrived only to find out that my secretary hadn't heard

17 about it, and she's under no -- this might shock you all,

18 particularly from the media, but it shouldn't shock you. I

19 love telling the story about the New York Times having a

20 front page for seven days, a story they headed up, the War

21 On 138th Street. It started on a Sunday, went everyday

22 front page. On Monday I was supposed to pick the jury in

23 the case which was featured on the front page of the Times.

24 Well, I put off jury selection for four months.

25 I then went through the jury and I asked the

2405

1 jury. Did you see an article about this case? Did you see

2 an article where the headline was War on 138th Street?

3 Amazingly, the jury said no. One woman, I said to her,

4 you're sure that you didn't see War on 138th Street, to

5 which she replied, young man, -- first big brownie point

6 with me. I liked the woman immediately. She said, young

7 man, do you know what was in the Times review of the first

8 night at the New York City Ballet this year? And I looked

9 at her and I said: I have absolutely no clue. And she

10 said, that just proves that you read what you're interested

11 in and I read what I'm interested in.

12 Anyway, the jury did not get the newspapers

13 today. They got the Home Section I think it is, and the

14 Money and Finance Section, and, surprisingly, they didn't

15 ask for, and this really shocks me, nobody asked for the

16 Daily News or the New York Post or Newsday. They haven't

17 asked for that. So there you go.

18 I fully intend at this point, unless I hear

19 objections from you guys, to assume that they saw or heard

20 something about it, and I am going to talk to them about

21 their oath, and tell them that whatever happened there has

22 absolutely nothing to do with this case. Unless somebody

23 can come up with something better still I think that's the

24 best I'm going to do.

25 MR. KULCSAR: I'm sorry, your Honor. I was

2406

1 advised that on at least two stations Mr. Yousef was

2 mentioned in the context of reporting of the incident

3 specifically, and the charge against him, and plans both

4 American Airlines -- I did not hear them myself.

5 THE COURT: I know nothing about it.

6 MR. KULCSAR: I figured you didn't, so that's why

7 I bring it to the Court's attention. Obviously, I think

8 we're all, speaking for myself, we agreed with your Honor of

9 course with respect to the horrible incident in Saudi,

10 Arabia. I don't know given the specific nature of the

11 charges in this case and the apparent circumstances that are

12 speculated on explosion of Flight 800 and, again, the

13 unfortunate confluence of circumstances wherein this tape

14 would be played today, whether some other course might be

15 considered, I don't know. As a matter of fact, until your

16 Honor pointed out the fact that the transcript does reflect

17 references to Paris I had forgotten --

18 THE COURT: I didn't know about it. It's a good

19 thing somebody told me.

20 MR. KULCSAR: So I don't know. I think that a

21 general instruction was certainly sufficient for my purposes

22 the last time. I don't know if that's really sufficient

23 with respect to the situation here. It may be one reason

24 these people didn't ask for newspapers is because of their

25 willingness to be forthright and comply by your Honor's

2407

1 ruling and anticipating that any newspaper account would

2 have something in it.

3 THE COURT: I still think I'm going to have to

4 remind them of their oath and tell them that they can't

5 decide anything that has to do in the newspapers and so on,

6 so forth.

7 MS. BARRETT: Your Honor, the transcript I

8 believe on page 7 also makes reference to TWA.

9 THE COURT: TWA. Was that listed in that list of

10 flights? I didn't think so.

11 MR. SNELL: Your Honor, just so we're clear on

12 that reference of the transcript Mr. Murad is talking about

13 his own travel history, and he took TWA apparently at that

14 time. I don't think that's in the same league as what we're

15 talking about.

16 MS. BARRETT: I didn't hear this myself, your

17 Honor, but I was told by someone that there was speculation,

18 I believe on CNN, some terrorists or somebody like that was

19 talking about nitrogylcerine, and the tapes we want to play

20 today, your Honor --

21 THE COURT: That's the kind of speculation you're

22 going to end up with.

23 MR. GREENFIELD: Your Honor, may I?

24 THE COURT: Sure.

25 MR. GREENFIELD: With respect to what the jury

2408

1 might or might not know, or what is different about this

2 than the other cases, is that regular broadcasting went off

3 the air when this happened. Whatever station anybody was

4 watching last night they know what happened. They know a

5 plane exploded. There is no question that there was

6 speculation early on.

7 What I find shocking -- and this is an aside -- I

8 was watching the Yankee game at 9:30 until it became 9-2,

9 and said, I'm not going to watch this any more. And I

10 didn't know a thing about it until I switched stations.

11 There was not even a news breakthrough during the ball game.

12 But every station on the TV was carrying it.

13 THE COURT: Except for the Yankee game.

14 MR. GREENFIELD: Except for the Yankee game.

15 THE COURT: It's ever since that Heidi situation.

16 MR. GREENFIELD: They are afraid of that, that's

17 right. I think we're the only two who know that.

18 MR. SNELL: I remember that one, too, your Honor.

19 THE COURT: You know the one.

20 MR. GREENFIELD: But the point is, in my mind

21 it's not an issue of speculation. They know it. There is

22 no question they know it. I think, if I might make a

23 suggestion to the Court, that your Honor individually

24 interview each juror and ascertain what they heard and will

25 it affect where we go.

2409

1 THE COURT: I don't think the time to do it is

2 right now. I might do it next week, if you want it done

3 next week, but I didn't think the time to do it is now.

4 MR. KULCSAR: Your Honor, I'm sorry, I don't

5 believe I made myself clear in terms of my concern. My

6 concern, your Honor, is that right now whatever general

7 information they have, or whatever certainly can be dealt

8 with by the Court, but having done that, we will be faced

9 shortly within the next hour or so with a statement

10 attributed to one of the defendants specifically dealing

11 with the very issue of explosions on airliners, and I think

12 that's a very different circumstance from what we have in

13 the Saudi Arabian situation. And I don't know whether your

14 Honor might consider not going forth past a certain point

15 today, and beginning Monday or the next court day with that

16 part of the evidence. I don't know how your Honor can

17 anticipate --

18 THE COURT: Look, am I correct that this thing

19 was chopped up already?

20 MR. SNELL: That's true, your Honor.

21 THE COURT: You've listened to the tape. Is the

22 tape clear on Paris?

23 MS. BARRETT: I believe, your Honor.

24 THE COURT: You believe it is?

25 MS. BARRETT: Yes, I believe that even though the

2410

1 government has tried to say the reference to TWA the context

2 was in this transcript --

3 THE COURT: TWA doesn't bother me, but the Paris

4 bothers me, since this was a flight to Paris.

5 MS. BARRETT: It is clear, your Honor, and

6 that's --

7 THE COURT: Is there some way of taking that out?

8 We're going to bleep someplace else?

9 MR. SNELL: Your Honor, as far as the tape is

10 concerned I don't know whether we could take out the word

11 "Paris." I just don't know enough about this stuff. The

12 only thing I can suggest is to delete a portion of the

13 conversation entirely.

14 THE COURT: That's fine by me, if you guys can

15 agree on what to delete.

16 MR. SNELL: That will mean that there will be a

17 larger gap in the tape than otherwise exists.

18 THE COURT: So what?

19 MR. SNELL: Otherwise it's going to take a long

20 time to redub the tape.

21 THE COURT: If you take out the part about Paris.

22 MR. SNELL: I think it's on 21.

23 THE COURT: 20, 21.

24 MR. GREENFIELD: Your Honor, at this point I will

25 object to the playing of this tape. I can't let this thing

2411

1 in today.

2 THE COURT: Okay. He objects. Nobody gets to

3 play it. All right. Now, we're still --

4 MS. BARRETT: Your Honor, I apologize.

5 THE COURT: Pardon me?

6 MS. BARRETT: What was the ruling on

7 Mr. Greenfield's objection?

8 THE COURT: If he objects to it you're not going

9 to get to play. From what I heard yesterday this guy cannot

10 identify it in a million years.

11 MS. BARRETT: Your Honor, my cross-examination

12 yesterday was based on the fact that we weren't sure at that

13 point that we were going to be playing the tape, but I

14 believe that there are some questions that I can ask

15 Mr. Ferro today to establish that he knew that Mr. Murad was

16 taped, that he was present when taping occurred, and also,

17 it was previously agreed between the government and myself

18 that pursuant to a stipulation that these tapes are

19 authentic.

20 THE COURT: The fact that they are authentic is

21 fine. I didn't hear this man say a word about being at any

22 interrogation whatsoever. All I heard was he was two

23 hundred meters away across a parking lot, and that he was

24 working at various and sundry things. I didn't hear a

25 bloody word come out about him being at any interrogation

2412

1 whatsoever.

2 MS. BARRETT: Your Honor, no questions were asked

3 to elicit those answers.

4 THE COURT: You guys should know. Was he at the

5 interrogation or no?

6 MR. SNELL: Yes, your Honor. In fact I think he

7 testified that he was in and out. If that line is developed

8 further, I think that it's going to be established that he

9 was in for some period of time. I'm not exactly sure how

10 long.

11 THE COURT: Fine.

12 MS. BARRETT: Your Honor, Mr. Greenfield's client

13 is not even mentioned in the tape.

14 THE COURT: I can't hear you.

15 MS. BARRETT: Mr. Greenfield's client is not even

16 mentioned in this tape.

17 THE COURT: I know, but that's not the problem.

18 MR. GREENFIELD: Your Honor, if I might, the

19 Philippines, the alleged plot on the Pope is mentioned.

20 MS. BARRETT: That has been going on throughout

21 the trial, your Honor, and even Mr. Greenfield --

22 MR. GREENFIELD: Well, I've been objecting

23 throughout the trial. You want to play the tape, play the

24 tape. I'll leave the courtroom, your Honor.

25 THE COURT: You won't leave the courtroom.

2413

1 MR. GREENFIELD: You know what I mean. I'm sorry

2 for being curt.

3 THE COURT: You're not going to do it.

4 MR. GREENFIELD: I'll move for severance if they

5 think it's important to their case.

6 MS. BARRETT: Your Honor, this will in fact

7 impact on Mr. Murad's defense, and this was something that

8 was mentioned in my opening statement.

9 THE COURT: Yes, I know. This is the witness

10 that you think you're going to get it in through. Now, can

11 you get Paris out of the tape?

12 MR. SNELL: We can just not play that portion of

13 the tape, your Honor, fast forward through it. I think that

14 can be done fairly easily.

15 THE COURT: But I thought you guys had these

16 things that you were going to be handing out. What are you

17 going to do with it?

18 MR. SNELL: I think we would go back to our

19 office and redo it on the word processor. It's on the word

20 processor and we can take that section out.

21 THE COURT: How long will it take?

22 MR. SNELL: I think just to revise the transcript

23 we could get that done in 30 minutes, assuming the people

24 that are necessary to do it are over there. To redo the

25 entire tape --

2414

1 THE COURT: I don't care how you get it out of

2 the tape, but get it out of the transcript for sure.

3 MR. SNELL: That part is much easier than

4 eliminating it from the tape.

5 MS. BARRETT: Your Honor, maybe we can just take

6 out the word Paris.

7 MR. SNELL: In the transcript?

8 THE COURT: That's what I asked you before

9 whether the Paris is clear on the tape and you said, oh, yes

10 it is.

11 MS. BARRETT: I thought it was, your Honor, but

12 the jury is sitting over there and I'm not so sure. I

13 listened to it several times, your Honor, and over and over

14 with the aid of transcripts, so --

15 MR. SNELL: Your Honor, I think it is clear and

16 unfortunately it's mentioned several times. I couldn't

17 stand here and say that it's a chance that everyone can take

18 that it wouldn't be heard by some juror.

19 THE COURT: Play it for me. Do you have it? Can

20 you get to that point?

21 MR. SNELL: I think it's on the defense table

22 now, your Honor.

23 MR. KULCSAR: Your Honor, may we have one moment?

24 THE COURT: Sure.

25 (Pause)

2415

1 THE COURT: What do you guys want to do about

2 Paris?

3 MR. SNELL: Your Honor, from a technical

4 standpoint I'm told that it's not a huge job just to

5 eliminate the word Paris from those portions of the tape, in

6 which case those portions take on a very different kind of a

7 slant. If we are given an hour we can come up with a new

8 tape that will have redacted the word Paris each time it

9 appears, and a new transcript of course, so that there is no

10 reference to Paris.

11 MS. BARRETT: Your Honor, we have no objection to

12 the tape remaining the same way, and the transcript

13 remaining the same way, your Honor, based on the context of

14 how the word Paris was used in this conversation, and I've

15 conferred with my co-counsel, and other than Mr. Greenfield

16 who objects specifically to the portion about the Pope, the

17 section about the Pope, you know, I don't think anybody has

18 any objections to this part being played.

19 THE COURT: Is everyone agreed then that we leave

20 Paris in?

21 MR. SNELL: Yes.

22 THE COURT: Okay, fine. All right. Now, first

23 things first. We're going to need the jury first.

24 MR. GREENFIELD: I have to talk to my client

25 about that, your Honor, before I say I can agree. I really

2416

1 have to talk to my client. I must speak to my client about

2 that before I can say we agree.


4 MR. KULCSAR: Your Honor, may I step out for one

5 minute?


7 (Pause)


9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2417

1 (Jury present)

2 THE COURT: Good morning, ladies and gentlemen.

3 Last night over near the Moriches Inlet out in Long Island

4 an airplane blew up, TWA Flight 800.

5 Now, there is going to be, and there has been I'm

6 sure -- I don't know if you've encountered it yet -- all

7 kinds of speculation about what happened. I have no clue

8 what happened, nor do you, nor do any of the people who have

9 been speculating up to this point. All we know is that

10 there was an explosion and the airplane went down. It's a

11 tragedy, there is no two ways about it, but that had nothing

12 to do with this case.

13 When you first came here you took an oath to

14 decide the case based upon the evidence presented in this

15 courtroom. Clearly what you find and hear about outside of

16 the courtroom has nothing whatsoever to do with your

17 decision, nor can it play any part in what your decision may

18 be as to the facts of this case.

19 I am going to assume that each and everyone of

20 you will live up to your oath, unless you give me some

21 reason to believe otherwise. I'm asking you, however,

22 particularly to avoid reading anything or listening to

23 anything to do with TWA Flight 800. Now, it may be that

24 you're going to encounter something about it. I recognize

25 that. I just want you to do it to the extent that you can

2418

1 avoid all contact with that.

2 Please don't discuss it with anybody else.

3 Please don't discuss what you hear here with anyone else.

4 You've already promised me that you wouldn't. Please, you

5 may be in the process of forming an opinion now. Don't.

6 All right.

7 The one thing I can tell you for sure is that

8 under our system we depend upon oaths. When a witness takes

9 the stand he is requested to put his right hand in the air

10 and he takes an oath. When lawyers come to the bar they

11 have to take an oath. When I got this job I had to take an

12 oath. And you took an oath, also, when you became jurors.

13 Your oath is that what you would try it on the law and on

14 the evidence. Now, the evidence, as I told you at the very

15 outset, is only the stuff that you heard here, not something

16 that occurs outside, not some speculation you might hear

17 from somebody else, nothing like that.

18 Please, the evidence can only come in in this

19 courtroom. Don't weigh your mind down with stuff that

20 happens outside. Don't weigh your mind down with wild

21 speculation, which at times the media just goes into a

22 frenzy just to go into a frenzy to make sure that everybody

23 is listening to it. Please don't let yourself get involved

24 in a situation like that.

25 You've taken an oath to do a job, and that's the

2419

1 oath I expect you to follow. If it is going to be too

2 difficult for you, for God's sakes, tell me. I don't think

3 it will be. And the one thing that you should recognize is

4 that the one benefit that we all have in life as we go

5 through life is to be able to say we did a good job. And

6 for you folks to do a good job you have to obey your oath.

7 You have to follow through with that.

8 Please, stay away from any of the media that's

9 coming out with this wild speculation. Stay away from all

10 stories about it. That's the easiest thing. It happened.

11 I feel terribly sorry for those families, all the people

12 that were killed, and for all of their loved ones, and I'm

13 sure you do, too. Okay.

14 Now, we have a job to do and we have to

15 concentrate on that. So, all right.

16 We have a little bit more evidence to take from

17 this witness. Then we may be playing a tape for you, okay?

18 But we have perceived a minor glitch in the tape. So after

19 we take the little evidence I'm going to ask you to step

20 out, and hopefully the technical experts will be up to par

21 and get it in here in very short time, but we have a small

22 problem with it, which we've got to iron out.

23 So first things first. Paul, you want to get the

24 witness in.

25 ALBERT I. D. FERRO, resumed, through the interpreter.

2420

1 THE COURT: Ms. Barrett, you have to put this man

2 in position to be able to hear what's going on. I assume

3 you're going to do that now.

4 MS. BARRETT: Yes, your Honor.


6 BY MS. BARRETT:

7 Q Major Ferro, you indicated that Mr. Murad was

8 taken to Camp Crame on January 7th; is that correct?


10 again, please?

11 Q You indicated that Mr. Murad was taken to Camp

12 Crame on January 7th in the afternoon of January 7th.

13 THE INTERPRETER: The 7th?

14 Q January 7, 1994?

15 A Yes, ma'am.

16 Q And you also indicated that he was taken to a

17 detention room in another building across from the building

18 in which your office was located.

19 A My office is not really right across from, nor in

20 front of the detention center. Rather, it's a ways off and

21 my office is even inside a building.

22 Q Now, sir, you also testified that during the time

23 that you were in your office that afternoon and evening that

24 you went back and forth -- withdrawn.

25 You also testified that you were given

2421

1 instructions on that day that Mr. Murad was to be

2 interviewed; is that correct?

3 A The instruction given to me, ma'am, was that I

4 would be one of the people who would be with the team, with

5 a group that would be interviewing Mr. Murad.

6 Q Who gave you those instructions?

7 A The person that gave me the instruction, ma'am,

8 was Col. Garcia.

9 Q And you stated that you were one of the people

10 that was instructed by Col. Garcia to, along with other

11 people, to interview Mr. Murad?

12 A Yes, ma'am.

13 Q And did you participate in that interrogation of

14 Mr. Murad?

15 A Yes, ma'am.

16 Q Now, during the time that Mr. Murad was being

17 interrogated was there a tape recording of that

18 interrogation?

19 A At that time I didn't notice if there was any

20 recording equipment for this purpose. My presence there was

21 marked by constantly going in and out of the interview room

22 and I didn't stay long in that room. There were a lot of

23 other people doing the interview.

24 Q Do you know whether or not he was being taped?

25 A That particular hour I was not conscious that a

2422

1 recording was happening, but later on I found out that there

2 was recording.

3 Q Now, you stated that along with you other people

4 participated in the interrogation of Mr. Murad. Do you know

5 those people?

6 A I cannot really recall who all those people were

7 conducting the interview. As I said earlier, I was going in

8 and out of the room and we were, we were very concerned at

9 that time for the security of the Holy Pope.

10 Q How many people were involved in the

11 interrogation of Mr. Murad?

12 A I'm not exactly sure of the right number, the

13 exact number, ma'am. I would say perhaps eight or nine or

14 even more. And they were all together in one room. There

15 was another area where some of the people doing the

16 interview would be standing by waiting, and, for example,

17 when one, when certain people are finished with the

18 questions then they would be replaced by some of those

19 people standing by.

20 Q Now, when you were going in and out of the

21 interrogation room is it fair to say that you spoke to Mr.

22 Murad on a number of occasions?

23 A Yes, ma'am.

24 Q And am I correct in saying that you came to

25 recognize his voice?

2423

1 A Would you, could you please repeat that, ma'am?

2 Q Well, during the time that Mr. Murad was in

3 captivity with the intelligence command group in the

4 Philippines did you speak to him on a number of occasions?

5 A That particular time when I saw him I didn't know

6 him very well, but I was able to speak with him on a number

7 of occasions.

8 Q And because you spoke to him on a number of

9 occasions, is it fair to say that you came to recognize his

10 voice?

11 A I believe that for myself I don't really remember

12 voices that real well, but I can remember his voice at that

13 time.

14 Q And you said you became aware that there were

15 tape recordings of conversations with Mr. Murad. Did you

16 ever listen to any tapes in connection with any


18 A The 7th of January, 1995, I myself did not do the

19 recording, and I didn't see, I was not aware of a recording

20 that was happening at that time. But subsequently the rest

21 of the interviews when I would be conducting the interview

22 then I know that there was a recording happening because I

23 was doing it.

24 Q Did you listen to any recordings after they were

25 taped?

2424

1 A I did hear recordings made, but when we were,

2 when our particular office was entrusted with the subsequent

3 interviews then after an interview is done we would, I would

4 take care of reading the summary itself, and from the

5 summary then I would figure out what I would be asking Mr.

6 Murad the next time I interviewed him.

7 Q My question to you, sir, of any tapes that were

8 made of Mr. Murad, any tapes whatsoever, did you ever have

9 occasion to listen to any of those tapes?

10 A Yes, ma'am.

11 Q And when you listened to those tapes did you

12 recognize Mr. Murad's voice?

13 A Yes, ma'am.

14 Q And did you recognize the voice of any of your

15 colleagues?

16 A If I am in that room at a particular time when

17 the interview was being conducted I may recognize some

18 voices, but if I'm not in that room then I would not be so

19 sure if I could recognize a particular voice.

20 MS. BARRETT: Your Honor, I believe that at this

21 time it would be appropriate to have your Honor read into

22 the record a stipulation between the government and myself.

23 THE COURT: Do you have the stipulation? I want

24 to see it first. I assume on the basis of the stipulation

25 you are going to ask to play a tape, am I correct?

2425

1 MS. BARRETT: Yes, your Honor, but I have a few

2 more questions prior to that.

3 THE COURT: You have what?

4 MS. BARRETT: I have a few more questions before

5 playing the tape.

6 THE COURT: Well, ask the questions. Go ahead.

7 Q Now, you testified yesterday that you were

8 viewing the computer and that you would go back and forth to

9 the interrogation room; is that correct?

10 A You're right, ma'am, but in addition to that, at

11 times I would be given instructions to my personnel. For

12 example, I would instruct Richard to check certain facts,

13 and there were also times when I myself went out to follow a

14 lead to check an address that was found in one of the

15 documents.

16 Q Now, where was Mr. Murad being interrogated?


18 again, please?

19 Q Where was Mr. Murad interrogated?

20 A When he would be questioned Mr. Murad would be

21 taken from the detention group to another room with a table.

22 He would be sitting on a chair. In front of his chair would

23 be two other chairs.

24 Q Now, you stated that the detention room was in a

25 burned-out building. Was that the building in which the

2426

1 interrogation occurred?

2 A Yes, ma'am.

3 Q So the eight or nine people that interrogated Mr.

4 Murad was taken to that building -- withdrawn -- went to

5 that building where the detention room is located?

6 A The eight or nine people that would conduct

7 interviews would not go to the detention room. They would

8 just go to the room where the interview is being held.

9 Q You testified that other than the detention room

10 there are only storage facilities at the building where the

11 detention room is located. Where was the interrogation

12 room?

13 A Like I mentioned, that area was sometimes used

14 for storage of excess supplies. So there would be vacant

15 areas where the interview could also be conducted.

16 Q Now, what time did the interview begin?

17 A I remembered it was night time the interview

18 began.

19 Q Were you there at the time that the interview

20 started?

21 A No, ma'am.

22 Q When was the first time that you walked in the

23 room where Mr. Murad was being interrogated?

24 A I can't tell you the exact hour when I first

25 entered the interview room. My concern at that time was

2427

1 really the contents of the documents in the computer, and

2 already there were many people there, and every so often I

3 would literally insert myself, and to ask a question,

4 verifying a lead that I would have found in the documents.

5 Q Mr. Macachor started work on the computer about 6

6 or 7 in the evening?

7 A Yes, you could say that perhaps.

8 Q How long after he was working on the computer did

9 you leave to go to the interrogation room?

10 A When Mr. Macachor was working with the computer I

11 couldn't just take off and leave him. Sometimes we would

12 work, he would work on the computer, he would get some

13 information, we would list that information down on our

14 notes so that we could ask Mr. Murad questions regarding

15 that particular lead, and when he's finished with the

16 computer we would shut it off, I would put it back into my

17 steel locker. That's what we did.

18 Q What time -- withdrawn.

19 When you were instructed that Mr. Murad was to be

20 interviewed and that you were to participate in that

21 interrogation was Mr. Macachor in your office at that time?

22 A He may not necessarily have been in my room in my

23 office, but I know that he was in the vicinity of the

24 building. He was on standby for any instructions from me.

25 I had to have him around so that I could have somebody to

2428

1 instruct, because it was a weekend. It was hard to find any

2 personnel to help me.

3 Q Major Ferro, Col. Garcia gave you the

4 instructions that Mr. Murad was to be interviewed; is that

5 correct?

6 A Yes, ma'am.

7 Q And this instruction that was given to you by

8 Col. Garcia was given to you after you left the PSG offices

9 and came to Camp Crame; is that correct?

10 A The instruction for us to conduct the interview

11 came at night and people were needed to conduct this

12 interview, and we were pressed for time to get, especially

13 to get leads to protect and to secure the state of the Holy

14 Pope.

15 Q Now, this instruction which came at night, was it

16 given to you directly in person by Col. Garcia?

17 A As per our protocol we follow a certain chain of

18 command. Col. Garcia's position is way above me. I'm much

19 lower than him, and sometimes a superior doesn't necessarily

20 have to give us instruction face to face. An order may be

21 passed through an aide.

22 Q I understand that, sir. On that day was the

23 order, did this instruction come from Col. Garcia personally

24 or did it come from an aide?

25 A What I know is that someone had told me that I

2429

1 would be part of the group that would conduct interview with

2 Mr. Murad.

3 Q Now, when that someone told you, did he come to

4 your office or were you summoned to go someplace to get this

5 information?

6 A It's possible that I got the instruction by phone

7 because everybody was very busy at that time.

8 Q And you just stated that you got the instruction

9 at night time; is that correct?

10 A To my knowledge the instruction came at night.

11 Q Now, Mr. Macachor started working on the computer

12 sometime that night; is that correct?

13 A Yes, ma'am.

14 Q Do you remember if he was in your office at that

15 time working on the computer when you got the instruction?

16 A It's possible, ma'am.

17 Q Now, you said that you worked on the computer and

18 then you would go to the interrogation room with information

19 that you wanted to confer with Mr. Murad about.

20 A Yes, ma'am.

21 Q Now, who told you where the interrogation was

22 going to take place?

23 A I guess the people that told me were some of the

24 other persons who went ahead to interview.

25 Q Now, do you know who took Mr. Murad from the

2430

1 detention room to the interrogation room?

2 A I don't know, ma'am.

3 Q How far from the detention room is the

4 interrogation room?

5 A Maybe it's, there's a room in between perhaps.

6 Q Now, do you recall whether the instructions that

7 you received about Mr. Murad being interviewed came before

8 midnight?

9 A I can't tell you the exact hour when I got the

10 instructions. I can say I got it at night. I can't tell

11 you if it was before midnight. All I know is I'm sure I got

12 the instructions that night.

13 Q Do you recall how long Mr. Macachor was working

14 on the computer before you got the instructions?

15 A I'm not sure about the exact time because aside

16 from working with the computer, the documents and the papers

17 I also instructed him to buy food, because we were hungry,

18 we were tired. It was late.

19 Q Approximately how long did Mr. Macachor work on

20 the computer before he took his first break?

21 A I'm sorry I can't really remember that, because

22 that would be difficult to ascertain that time.

23 Q Now, do you know -- withdrawn.

24 When Mr. Murad was placed in the detention center

25 do you know if anyone stayed at the detention center where

2431

1 he was located?

2 A First of all, the security of Mr. Murad is not my

3 concern so in our system someone else will be concerned with

4 the security. So I couldn't tell you who was left with him

5 in the detention room.

6 Q Sir, on the afternoon of January 7th when you

7 arrived at Camp Crame with Col. Garcia and Mr. Murad was it

8 your testimony yesterday that Col. Garcia instructed someone

9 to take Mr. Murad to the detention center?

10 A Yes, ma'am.

11 Q Was it also your testimony that Col. Garcia

12 followed Mr. Murad and the person that instructed to take

13 Mr. Murad to the detention center?

14 A What I remember was we got off the vehicle and

15 Col. Garcia, the person accompanying Mr. Murad and Mr. Murad

16 headed towards the detention room. They headed towards the

17 building where the detention room is located. That was in

18 one direction. And I went to the other direction to go to

19 my office.

20 Q And that was about 2 o'clock in the afternoon?

21 A Maybe it's that time.

22 Q And that was the last time that you saw Mr. Murad

23 before going back to the interrogation room?

24 A Yes, ma'am.

25 Q And that was the last time you saw Col. Garcia

2432

1 that day?

2 A No, ma'am. There are times when I do have to

3 consult with Col. Garcia, and I have to consult with him

4 regarding developments of some of the information that I had

5 gathered from the documents. Our standard operating

6 procedure is that the decision making rests with our

7 superiors, and any steps or moves that we contemplate doing

8 must be cleared with our boss before we do so.

9 Q You indicated earlier that Col. Garcia is so much

10 higher up than you are that he did not always deal directly

11 with you. That afternoon or evening when had you to confer

12 with Col. Garcia did you do this personally with him or did

13 you do it through an aide?

14 A We have a certain protocol that we followed in

15 our country. A person of a very high rank usually does not

16 go down to a person of a lower rank with requests, so we

17 follow a certain standard of courtesy so that a person of a

18 lower rank has to go up to a person of a higher rank.

19 Q You just stated that you had to confer with Col.

20 Garcia that afternoon, that evening. Where was Col. Garcia

21 when you conferred with him?

22 A He was in headquarters of the IC.

23 Q And since he is of such a high rank and much

24 higher than you, who did you speak to when you had to confer

25 with Col. Garcia?

2433

1 A In that particular situation we were dealing with

2 matters that were sensitive to our national security, and we

3 have a saying that of course the commanders should always be

4 informed but still it is not proper for a commander to go

5 down to a person of a lower rank and ask and request.

6 Q Sir, how many times did you have to confer with

7 Col. Garcia that day?

8 A I conferred with him many times that day. It was

9 a long night. We had no sleep, and we really had to pay

10 attention to security of the stay of the Holy Pope in our

11 country.

12 Q You secured --

13 MR. GREENFIELD: Your Honor, you will note I

14 renew my application at this point.

15 THE COURT: Yes.

16 Q You conferred with him many times. The first

17 time that you conferred with him did you go to his office

18 yes or no?


20 again, please?

21 Q Did you go to Col. Garcia's office to confer with

22 him, yes or no?

23 A Yes, ma'am.

24 Q Yes or no, did you speak directly to Col. Garcia

25 when you went to his office?

2434

1 A Yes, ma'am.

2 Q And that entire evening each and every time that

3 you conferred with Col. Garcia did you go to his office, yes

4 or no?

5 A Yes, ma'am.

6 Q And, again, yes or no, did you speak directly to

7 him each time?

8 A There were so many times when I had to confer

9 with him. Could you clarify your question? Is it every

10 single time that I spoke with him, is that what you want,

11 ma'am?

12 Q Yes, I want to know if every single time that you

13 spoke to him did you speak to him directly in his office

14 that you went to?

15 A No, ma'am.

16 Q Other than Col. Garcia who did you also speak

17 with when you went to Col. Garcia's office that evening?

18 A At that time Col. Garcia had his command group

19 and/or his staff in the room at times, so sometimes we would

20 discuss, I would ask him questions and there would be a

21 group discussion.

22 MR. KULCSAR: Your Honor, could we have the last

23 answer stricken? The question was who?

24 THE COURT: Group discussion is group discussion.

25 All right. I'll let it stand.

2435

1 Q Now, when you spoke to this group was this group

2 in Col. Garcia's office?

3 A It would vary. Sometimes it would be in his

4 office with the staff. Sometimes we would move to another

5 room and then sometimes to another room. That night was

6 very chaotic.

7 Q Every time that you went to Col. Garcia's office

8 to confer with him or his staff was Col. Garcia always

9 present?

10 A As the commander he had to be in the vicinity of

11 the headquarters. We were all on standby and our status at

12 that time was that of red alert. So the person that had to

13 speak regarding the activities of the headquarters was Col.

14 Garcia, so he had to be there.

15 Q Sir, each time that you went to Col. Garcia's

16 office to confer with him you spoke with either Col. Garcia

17 or to his commander group in a room, was Col. Garcia always

18 present when you spoke to his staff that evening?

19 A If I would see him frequently that night then I

20 would say, then I can say that I saw him frequently that

21 night.

22 Q When you went to -- withdrawn.

23 When you reviewed the information on the computer

24 with Mr. Macachor was it after that time that you first

25 conferred with Col. Garcia?

2436

1 THE INTERPRETER: Could you please repeat the

2 question?

3 THE COURT: Read it back.

4 (Record read)

5 A Before I went to Col. Garcia to confer with him

6 we have reviewed the contents of the computer, some of the

7 contents of the computer that night.

8 Q And that was after you spent some time with

9 Mr. Macachor reviewing the information on the computer?


11 THE COURT: Yes, he just said.

12 Q Now, did you, the first time that you conferred

13 with Col. Garcia was it after receiving instructions that

14 Mr. Murad was to be interrogated?

15 A First I looked at the document in the computer

16 and then I consulted with Col. Garcia regarding the

17 information from the documents in the computer, and then I

18 went to the room where Mr. Murad was being interviewed.

19 Q Now, when you first entered the room that Mr.

20 Murad was being interrogated in how many people were there

21 at that time?

22 A When I first entered the room when the room the,

23 room where Mr. Murad was being interviewed, I remember

24 seeing one person.

25 Q And where was the other eight or nine people that

2437

1 you mentioned that participated in the interview of Mr.

2 Murad?

3 A I remembered seeing one person in the room when I

4 first entered the interview room. As for the other eight or

5 nine I believe there were another room. They would be

6 comparing their notes of one person, of one interrogator

7 would compare answers and questions with another

8 interrogator.

9 Q When you entered the room was Mr. Murad standing

10 or seated?

11 A He was seated, ma'am.

12 Q And was he blindfolded?

13 A Yes, ma'am.

14 Q And he was handcuffed?

15 A Yes, ma'am.

16 Q Was his feet shackled?

17 A I didn't see if his feet were shackled. I saw

18 his eyes were blindfolded and he was handcuffed.

19 Q Do you know how long -- withdrawn. You just

20 stated that the interrogators were in another room comparing

21 notes. Was that room next to the interrogation room?

22 A I don't know if that room is right beside the

23 room where Mr. Murad is being held for the interview. I

24 know that there are other rooms and other offices.

25 Q Now, when you went there and you saw the

2438

1 interrogators comparing notes, did you speak to those

2 interrogators that had notes?

3 A At that time I didn't consult with them a lot. I

4 was consulting mostly with Col. Garcia regarding the

5 developments.

6 Q But you saw them comparing notes with each other?

7 A They were conferring with each other to verify if

8 what Mr. Murad was telling them was right or wrong.

9 Q So was it your understanding that these notes

10 that they were comparing with each other were notes taken at

11 separate times from their interrogation of Mr. Murad?

12 A To my understanding they were comparing notes,

13 and I believe they would have, they have to compare notes to

14 check for consistency of Mr. Murad's answers to questions.

15 That's the way we do things.

16 Q And they were checking for consistency between

17 notes, because different interrogations had taken place; is

18 that correct?

19 A Yes, ma'am.

20 Q Now, you don't know how long Mr. Murad was being

21 interrogated before you went into that room the first time.

22 Is that correct?

23 A Yes, ma'am. I couldn't tell you what time the

24 interview started because I wasn't there.

25 Q You don't know when was the first time that

2439

1 anyone went to Mr. Murders cell while he was there in the

2 detention room?

3 A To my understanding Mr. Murad was not interviewed

4 in the detention room but rather in another room, so I

5 couldn't tell, and I don't know if there was anybody who

6 went into the detention room to interview him before the

7 interview.

8 Q Did anyone inform you as to how the interrogation

9 procedure was before you arrived?


11 THE COURT: He can answer yes or no.

12 A No one informed me, ma'am.

13 Q Of the officers that were there, were they all

14 from the intelligence command group?

15 A Yes, ma'am, to my knowledge they were mostly from

16 intelligence command.

17 Q What was the highest, who was the highest ranking

18 officer there?

19 A Col. Garcia, ma'am.

20 Q Was Col. Garcia in the interrogation room the

21 first time you walked in there?

22 A The first time I entered the room Col. Garcia

23 wasn't there. As I said earlier, I saw one person.

24 Q In the room that the other eight or nine people,

25 were comparing notes, was Col. Garcia in that room?

2440

1 A I didn't go inside so I didn't, I don't, I didn't

2 see Mr. Garcia there.

3 Q Who was the person that was in the interrogation

4 room when you first arrived?

5 A It could be his guard. I don't know who his

6 guard was.

7 Q Was he speaking to Mr. Murad at that time?

8 A He was not. They were not speaking. So I had a

9 chance to speak with Mr. Murad at that time.

10 Q To your knowledge was that person one of the

11 people that interviewed Mr. Murad during that evening?

12 A I'm not sure whether he was one of the people

13 that interviewed Mr. Murad, but when I entered that room it

14 seemed to me that he looked like a guard.

15 Q What was Mr. Murad doing at that time when you

16 walked in?

17 A He was seated, ma'am.

18 Q Was he crying?

19 A No, ma'am.

20 Q When you were there that evening did you ever see

21 anyone strike Mr. Murad?

22 A No, ma'am.

23 Q Did you ever see anyone put a towel over his head

24 and pour water over his face?

25 A No, ma'am.

2441

1 Q Did you ever see anyone order him not to drink

2 his water when he wanted water to drink?


4 again, please?


6 Q Did you ever hear Mr. Murad begging for water and

7 then denied the water by one of the interrogators?

8 A No, ma'am.

9 Q Did you ever hear anyone instruct, anyone of your

10 superiors instruct either you or any of the interrogators to

11 punish Mr. Murad in any way?

12 A I personally know that for us it is not in

13 fashion to inflict pain on a person to get information. We

14 employ newer modern ways of interrogation. I personally

15 know that it's better to ask the person diplomatically for

16 information.

17 Q You just talked about modern ways of

18 interrogation? Was that what you stated?

19 A Yes, I do, pertaining to a newer way of

20 investigating or conducting interrogations that can be done

21 by convincing, by convincing the person without the use of

22 brute force. These ways that you speak of are barbaric ways

23 that pertain to an older life.

24 Q Are you familiar with those barbaric ways?

25 A I personally have not had a chance to participate

2442

1 nor to perform such barbaric ways.

2 Q Sir, do you know if any one of your colleagues or

3 any of the interrogators that participated in interviewing

4 Mr. Murad employed any of those barbaric techniques in

5 interrogation?

6 A No, ma'am.

7 Q You weren't there that entire evening when Mr.

8 Murad was being interrogated; is that correct?


10 THE COURT: Yes, he's already testified.

11 Q You never saw Mr. Murad vomit?

12 A No, ma'am.

13 Q You never saw him being choked?

14 A No, ma'am.

15 Q You never saw them giving him urine to drink when

16 he asked for water?

17 A No, ma'am.

18 Q You never saw anyone applying electrodes,

19 electric shock to his genitals?

20 A No, ma'am.

21 MS. BARRETT: Your Honor, I believe this is the

22 appropriate time to have the stipulation read and the tape

23 played.

24 THE COURT: All right. I don't know if the

25 glitch is fixed yet, ladies and gentlemen, so I am going to

2443

1 take our break now and find out.


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2444

1 (Jury, witness, interpreter not present)

2 THE COURT: I understand first of all that you

3 still disagree with this Paris reference in there?

4 MR. GREENFIELD: That's correct.

5 THE COURT: So this stipulation isn't a

6 stipulation because he disagrees with the transcription.

7 MR. GREENFIELD: I disagree with it being played,

8 not necessarily that it's accurate.

9 THE COURT: You disagree with it being played.

10 MR. GREENFIELD: I also disagree with the entire

11 tape being played for the reasons I stated before.

12 THE COURT: Yes. And without a stipulation this

13 guy has not identified the tape, so there you go. But do

14 you still disagree with the entire tape?

15 MR. GREENFIELD: The problem I have, your Honor,

16 among other things, but the primary problem, Paris aside, I

17 am objecting as to proof of this alleged theory that the

18 arrest activities of the police officers were related to

19 some plan on the Pope, and now it's going beyond that. Now

20 it's going to proof that there was such a plan of course in

21 the statement. I don't know if it's true or not. I don't

22 know the circumstances under which it was made.

23 But now no longer justification for activity on

24 the part of the PNP. Now we're getting affirmative proof

25 that in fact this plan did exist, and that goes beyond the

2445

1 pale as far as I'm concerned, and I didn't, they should have

2 known this was coming in. The government I mean.

3 THE COURT: They are not offering it. It's the

4 defense that is offering it.

5 MR. GREENFIELD: This whole thing about the Pope.

6 THE COURT: The Pope is part and parcel. You

7 can't get the Pope out of it.

8 MR. GREENFIELD: For that reason I'm objecting to

9 the tape and if it is played I would move for severance

10 and/or a mistrial.

11 THE COURT: Well, you'll get neither one of those

12 and it's going to be played apparently. The Paris thing

13 however bothers me still. Do you have --

14 MR. SNELL: May I have a moment, your Honor.

15 (Pause)

16 THE COURT: Roy, you're back obviously is in

17 pain. Are you taking something for it?

18 MR. KULCSAR: I apologize. It's the medication,

19 your Honor.

20 THE COURT: That's all right. But I hate to see

21 you in such pain.

22 MR. KULCSAR: I didn't mean to interfere.

23 MS. BARRETT: Your Honor, the Paris situation is

24 unfortunate, but the defense still maintains that it would

25 be more damaging to remove that portion out of the

2446

1 transcript and the tape than it would be to leave it in.

2 THE COURT: Damaging for whom?

3 MS. BARRETT: It would be damaging, if that, to

4 the entire tape and Mr. Murad's defense.

5 THE DEPUTY CLERK: Ms. Barrett, you have to speak

6 into the mic. We can't hear you.

7 THE COURT: This will be damaging to Mr. Murad's

8 defense if we leave Paris in. I don't know. You want Paris

9 in?

10 MS. BARRETT: Yes.

11 THE COURT: You want Paris in?


13 THE COURT: What do you want?

14 MR. SNELL: I was just going to bring everybody

15 up to date I think on where we stand with the tape. As I

16 understand it, the tape has been redacted. Unfortunately a

17 few words came out in addition to the word Paris, but we can

18 adjust the transcript accordingly, or leave the transcript

19 the way it is.

20 I think it probably would make more sense to take

21 those words out of the transcript since that's done

22 relatively easily. I'm sure everybody is going to want to

23 hear the section before it gets played as do I.

24 THE COURT: It's just he's going no place, is

25 that what you are telling me? He is going to blank, not

2447

1 indicating that he was talking to going to Paris.

2 MR. SNELL: Your Honor, the way the transcript

3 reads now maybe I should just hand up the page to the Court,

4 page 20. It says --

5 THE COURT: Just read it to me.

6 MR. SNELL: "I was planning also to go to," and

7 then there are brackets with an empty space. And then a

8 similar redaction appears on page 21 in two places.

9 THE COURT: "I was going to" brackets with an

10 empty space.

11 MR. SNELL: Yes. And that electric stove to

12 blank question mark.

13 MR. GREENFIELD: Your Honor, if I might,

14 Ms. Barrett said something earlier that strikes me now, that

15 they say it's instrumental to their defense. It has nothing

16 to do with my client. If they want to tell that to the jury

17 before they play the tape, they can play the tape.

18 MS. BARRETT: Your Honor, the word Paris is very

19 important here because --

20 THE COURT: Look, I don't care. I'm trying --

21 MR. GREENFIELD: If they want to exculpate my

22 client on the record while they play the tape.

23 THE COURT: If Ms. Barrett says this has nothing

24 to do with your client --

25 MR. GREENFIELD: With the representation of both

2448

1 of these defendants here that that conversation and that

2 statement is unrelated to my client and has nothing to do

3 with it, I'll be happy to have them play the tape.

4 THE COURT: I am not going to broker that, nor am

5 I going to suggest that one way or the other, nor would I

6 believe that the government does. I don't know how they can

7 do that. That would in effect be having two guys testify

8 that your client had nothing to do with it. Good try

9 though, David.

10 MR. GREENFIELD: The reverse is I can't

11 cross-examine the inculpatory nature of the tape even though

12 they say he's not involved in it.

13 THE COURT: But it is Murad saying --

14 MS. BARRETT: I believe he said --

15 THE COURT: -- "I was planning also to go to

16 Paris."

17 MS. BARRETT: That's what he said, your Honor,

18 "I."

19 THE COURT: "I, I, I." And you want Paris in

20 there?

21 MS. BARRETT: That's correct, your Honor.

22 THE COURT: All right. What for? You want that

23 in there, okay. All right. Let me think about it. Give me

24 a copy of the redacted so I can just look at it. This is

25 the redacted one?

2449

1 MR. SNELL: Yes, sir.

2 MS. GRANT: Just those two pages have been

3 changed.

4 THE COURT: Let me read the two of them. You

5 want to listen to the redaction?

6 MR. SNELL: Do we have it here?

7 THE COURT: I don't care. I'm going to take 15

8 minutes, you guys. I'll be back then.

9 (Recess)


11 MR. GREENFIELD: If the Court please, I

12 understand -- if I'm wrong -- I believe this is the set of

13 facts -- I'm sure I'll be corrected if what I say is wrong.

14 My objection at this point to the playing of the tapes is

15 two-fold. One is the mention of Paris which I understand is

16 easily enough taken care of by the redaction, if that is

17 going to be redacted. Two, and the only other objection I

18 have is not to authenticity. That's not an objection that

19 I'm making. It is to the inclusion of the affirmative

20 proof, and not necessarily believable, but what I will call

21 affirmative proof being offered as a noncharged crime in

22 this case, and I've consistently objected to that type

23 evidence coming before the jury, and the Court has ruled it

24 in, but I thought for a limited purpose, and I thought the

25 government requested it for a limited purpose.

2450

1 THE COURT: Yes, it was for a limited purpose

2 throughout.

3 MR. GREENFIELD: And now it is beyond that.

4 THE COURT: Your co-counsel, the defense, wants

5 it in, right.

6 MS. BARRETT: That's correct, your Honor.

7 THE COURT: And you want all of it in.

8 MS. BARRETT: We want it with Paris.

9 THE COURT: You want Paris in, also.


11 THE COURT: Paris you believe affects your

12 defense.

13 MS. BARRETT: The context in which Paris is

14 mentioned, your Honor, it's important if you would look at

15 the transcript.

16 THE COURT: I looked at the transcript. To say

17 he's going to a place without identifying the place it

18 doesn't seem to make any difference whatsoever.

19 MS. BARRETT: I believe it does, your Honor, and

20 I have listened to the tape and gone over the transcript

21 also.

22 THE COURT: I can't hear you.

23 MS. BARRETT: Your Honor, that would be, that

24 would make a big difference in how that part of the

25 conversation would come out, and with the understanding that

2451

1 we have to listen to the entire tape, your Honor. We would

2 be willing -- I don't know if Mr. Greenfield would have a

3 problem with Europe -- to put in the word Europe in there.

4 THE COURT: Well, you can't do that. I mean

5 we're good at electronics, but I don't think that anybody is

6 going to stick in Europe, not electronically. I don't think

7 you can do that. You either want it in or it's out. You

8 want it in.

9 MS. BARRETT: Your Honor, if somebody listened to

10 these tapes --

11 THE COURT: I can't hear you. If somebody is

12 listening to the tape and --

13 MS. BARRETT: Take out on the transcript, remove

14 the word Paris, put Europe, and then just cut off the word

15 Paris by listening to the tape if somebody is operating it.

16 MR. KULCSAR: Your Honor, I have one other aspect

17 of this that has been discussed, and I think it's clear

18 unless I'm out of place, and I'm sure if I am I'll be

19 corrected by Ms. Barrett.

20 As I understand it, I mean the significance of

21 the tape or part of the significance is it's not being

22 offered as such for the truth of the contents of the tape

23 but rather the state of the mind of the person who is

24 speaking at the time the statements were made.

25 THE COURT: That's what I believe.

2452

1 MR. KULCSAR: So I think since that seems to be

2 the case, if the Court might give an instruction at the time

3 when the jury hears the tape it might obviate a lot of the

4 problems that are being encountered by counsel. I don't

5 think we disagree in terms of its content. I think we're

6 all in agreement if your Honor would consider the

7 instruction.

8 THE COURT: Oh, yes, I'll give that instruction.

9 That's easy.

10 MR. GREENFIELD: But we still leave Paris?

11 THE COURT: They still want Paris. I don't know.

12 I was to Paris once in my life. Nice city.

13 MR. GREENFIELD: Putting the Paris issue aside,

14 are you overruling my continued objection with respect to

15 the tape being played as to the Pope and that whole 404, 403

16 aspect?

17 THE COURT: Yes. You are admitting the

18 authenticity of the tape and so on. You are saying that

19 this Pope business is a problem. That I am overruling. I

20 am going to let that go in.

21 The question now is Paris, and Paris was the

22 one-day question, I think we all agree there, and I don't

23 think it would matter if it came out next week whether it

24 was Paris or not. I don't care. I don't particularly care

25 whether it's Paris or not. If it was next week I assure you

2453

1 it would go in with Paris, and you wouldn't be yelling.

2 MR. GREENFIELD: So overrule me.

3 THE COURT: So overrule who?

4 MR. GREENFIELD: Me.

5 THE COURT: Yes, you're overruled. You like it

6 better that way?

7 How long is the tape?

8 MS. BARRETT: About 40 minutes, your Honor.

9 Between 40 and 45 minutes.

10 THE COURT: 45 minutes. I don't know. I don't

11 remember. We have logistical problems. As you know every

12 now and then I like the jury to eat lunch out because it's

13 better. The last thing I need is a bunch of jurors with

14 cabin fever because they've been sitting in the same room

15 all week. So today was their day out, and I wanted to make

16 sure that the restaurant could hold things off.

17 Apparently, Eric tells me they can. So, Paul,

18 would you get the jury, and we'll put them in the box and

19 we'll play this thing, and off we go.

20 Lillie, do you have the transcripts?

21 MS. GRANT: The transcripts are now ready with

22 Paris.

23 THE COURT: I would prefer a ticket to Paris

24 myself.

25 MR. GREENFIELD: And my overruled objection is

2454

1 clearly in place?

2 THE COURT: Oh, yes, oh, sure. You have made

3 your record. Don't worry about it.

4 MR. GREENFIELD: I'd like to indicate for the

5 record, too, your Honor, that while I had asked earlier for

6 time to discuss with my client the content of the tape, the

7 jury had been brought out. I sent an oral message to the

8 Judge through your law clerk that I so objected to the tape

9 at the time. There seems to be some disagreement --

10 THE COURT: No, I assumed.

11 MR. GREENFIELD: -- about my sending notes to the

12 Court and I just wanted the record to be clear that's what

13 happened.

14 THE COURT: You still objected. Who is

15 disagreeing?

16 MR. GREENFIELD: At this point I would just

17 rather let it go, your Honor.

18 THE COURT: That's all right. Lillie is giving

19 notes to the people behind you, and I send notes to my law

20 clerks and so on and so forth.

21 MS. BARRETT: Your Honor, are you going to read

22 the stipulation into the record? Do you want that I read

23 it?

24 THE COURT: The stipulation is a stipulation. Is

25 it signed? Has somebody got an original that's signed?

2455

1 Strike David's signature because it's no good until it's

2 filed. Somebody have this? I don't have it.


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2456

1 (Jury present)

2 THE COURT: I assume you want the witness to hear

3 this, too.

4 MS. BARRETT: Absolutely, your Honor.


6 THE COURT: All right, ladies and gentlemen. The

7 glitches have been cleaned up. I went to school in a much

8 easier time. We didn't have to learn electronics. I was

9 talking with one of my former law clerks who joked about the

10 fact that we used to have carbon paper. You know, nobody

11 changed the stuff because we had carbon paper, and it meant

12 if you changed it you had to retype the whole page.

13 I don't know about you guys, but I'm great for

14 mistyping things and so on and so forth. So we never had

15 any of that. I've learned how to work a xerox machine. I

16 can do certain things with computers, but all of this stuff

17 frightens me.

18 Anyway, the thing about it is we're always

19 changing things back and forth and back and forth and so on

20 and so forth.

21 Anyway, you're about to hear Government Exhibit

22 760, and, Mr. Witness, I want you to listen to Government

23 Exhibit 760, too. Government Exhibit 760 is being offered

24 actually, I guess, by Mr. Murad. 760 contains a fair and

25 accurate excerpts from a recording of a debriefing of the

2457

1 defendant, Abdul Hakim Murad, that took place on or about

2 January 7, 1995 in the Philippines, a copy of which

3 recording was provided to the United States government by

4 the Philippine law enforcement authorities.

5 Government Exhibit 760T is a fair and accurate

6 transcription of the contents of the conversation

7 recorded -- 760T is the transcript, 760 is the tape --

8 except that they have some disputes as to certain things.

9 Now, where there is disagreement as to a particular word or

10 phrase, the italicized and bracketed portion of exhibit 760

11 represents Murad's version of the dispute, and the regular

12 type shows what the government's version is.

13 Now, let me explain something to you. The tape

14 is the real evidence, not the transcript. What they hear on

15 it doesn't really count. It's what you hear on it that

16 counts. The transcript is given to you as an aid. Over the

17 years I can tell you, from listening to tape recordings

18 being played, the first time you hear it it's almost

19 impossible to figure it out.

20 You know I must admit there are even now songs on

21 the radio that I can't understand, and don't laugh. The

22 first time you guys hear them you can't understand them

23 either, right?

24 Anyway, it's an aid and if there is a dispute

25 when the time comes for you guys to make up your mind as to

2458

1 what the facts are in this case you can have the tape

2 replayed and replayed with the transcript, and you figure

3 out what the dispute is, and you figure out what the right

4 answer is.

5 Look, certain things are put in for the truth of

6 what happened, okay? Fine. Other things are put in to show

7 a state of mind and not the truth. So you can have a

8 statement, and the statement is not so much the words run

9 out, but the way it is given. There was a whole routine a

10 long time ago that one of the comics did about the different

11 ways you could say the same line and get different

12 reactions, all right?

13 I remember the line that he used. The line was.

14 "Take your hand off my knee, Lady Plushbottom." Now, roll

15 that around in your head and you can see all kinds of

16 differences, right? Here you're going to be listening for a

17 state of mind. That's what this thing is being offered for

18 and nothing else. The words may or may not be true. That's

19 not what it's being offered for. It's being offered to show

20 a state of mind and that's what we ask you to listen to.

21 All right.


23 Paul, if you'd be good enough to hand the

24 transcripts out.

25 Now I already checked with Eric, kids. Your

2459

1 lunch is going to be waiting for you, all right? We made

2 arrangements for that. This will run maybe 40 minutes.

3 MR. SNELL: I think so, your Honor.

4 (Government Exhibit 760 played)

5 THE COURT: All right, ladies and gentlemen.

6 We'll take our luncheon break right now. Eric, if you

7 would, please.


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2460

1 (Jury, witness, interpreter not present)

2 THE COURT: Well, plan to be back here at 2:30.

3 How long do you think you're going to be examining this guy,

4 the rest of the afternoon?

5 MS. BARRETT: I think so, your Honor.

6 THE COURT: Okay.

7 (Luncheon recess)


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2461

1 AFTERNOON SESSION

2 2:50 p.m.

3 ALBERT I.D. FERRO, resumed.

4 (Jury present)

5 THE COURT: The interpreter and I were comparing

6 notes on our daughters. Hers is a bit younger than mine.

7 Ms. Barrett.

8 CROSS-EXAMINATION continued

9 BY MS. BARRETT:

10 Q Major Ferro, prior to lunch you listened to the

11 tape that was played in the court?

12 A Yes, ma'am.

13 Q On the evening of January 7, how many times did

14 you confer with Mr. Murad in the interrogation room?

15 A I can't, I don't remember the exact number of

16 times but we spoke several times.

17 Q Approximately, say, 10 times? Would it be less

18 than 10 times?

19 A Maybe five or six times. When I confer with him,

20 it is usually only for a very short period of time, and then

21 I go out again.

22 Q When you conferred with him, that was always in

23 the interrogation room where he was located?

24 A Only in the interview room.

25 Q When you conferred with him, were there any of

2462

1 the interrogators in that room when you conferred with

2 Mr. Murad?

3 A What I would do was, when there was no one else

4 questioning him, that is when I would be there.

5 Q What time did you say that you left to go home?

6 A I don't remember the time when I went home for a

7 little while.

8 Q Would it be after you were finished working on

9 the computer with Mr. Macachor?

10 A Most probably it was that night that I went home

11 to my home for a little while.

12 Q You said you conferred with Mr. Murad about five

13 or six times.

14 A Yes, that is my estimate, how many times I spoke

15 with him that day.

16 Q Approximately how often did you leave your office

17 to go to the interview room to speak with Mr. Murad?

18 A Like I said, that's my estimate on how often I

19 went to see Mr. Murad in the other room.

20 Q From the first time that you went to see

21 Mr. Murad to the second time that you went to confer with

22 him, how much time passed between the first and second time,

23 approximately?

24 A It is very difficult to estimate how much time

25 that is, because sometimes I would even go out of my office

2463

1 to see Colonel Garcia and confer with him regarding leads

2 that I got from the documents.

3 Q Would more than an hour pass between the times

4 that you would see Mr. Murad, the different times that you

5 would see him?

6 A It is not like I would go to see Mr. Murad every

7 30 minutes. I would see him only when I had certain things

8 that I had to clarify with him.

9 Q Did you ever go more than once to see Mr. Murad

10 during an hour in any given hour that evening?

11 A I can't really estimate the time, but like I

12 said, I would see him maybe five to six times. I can't tell

13 you what was the interval between one visit to the next

14 visit and I can't even say I went there three times in an

15 hour or I went to see him every 15 or 30 minutes.

16 Q Did you ever wait more than an hour from one time

17 to the next time to see him?

18 A I can't really remember, ma'am, but usually if I

19 go there and I see that someone else is with him, then I

20 would usually leave.

21 Q That would be in addition to the times that you

22 conferred with him?

23 A Yes, ma'am.

24 Q Approximately how many times you went there and

25 weren't able to speak to him because other people were

2464

1 interrogating him?

2 A That is very difficult to guess, ma'am.

3 Sometimes I would even call to see if there was someone else

4 there.

5 Q From the time that Mr. Murad arrived that

6 afternoon, did you see anyone give him food to eat?

7 A I didn't see anyone give him any food because I

8 didn't go to visit him that afternoon.

9 Q So you also don't know whether he was allowed to

10 sleep also, is that correct?

11 A I couldn't also tell you whether he slept because

12 I didn't see him.

13 Q Did you ever hear, prior to entering into the

14 interrogation room, did you ever hear Mr. Murad screaming or

15 crying?

16 A No, ma'am.

17 Q You never heard him gasping for air?

18 A No, ma'am.

19 Q Do you know how long he was being interrogated

20 prior to you seeing him for the first time?

21 A I don't know exactly how many hours he had been

22 interviewed before I got there.

23 Q When you conferred with Mr. Murad in order to

24 verify information, did you also confer with the other

25 interrogators who had previously taken notes from their

2465


2 A This is what happens when I go to see Mr. Murad.

3 Also, I see him but I also go to report to Colonel Garcia,

4 because the other interrogators also report to Colonel

5 Garcia. When I speak to him then I gather some of the leads

6 that had been reported to the colonel.

7 Q When the other interrogators report to Colonel

8 Garcia, is Colonel Garcia generally in his office or is he

9 at the interview site?

10 A I don't know how the other interrogators would

11 report to Colonel Garcia, because at that time I was really

12 busy and focused on my work with the documents, and I didn't

13 see them with my own eyes.

14 Q When you and the other interrogators reported to

15 Colonel Garcia, were you given further instructions as to

16 how to interrogate Mr. Murad by Colonel Garcia?

17 A He didn't give us any specific instructions how

18 we would interview Mr. Murad, and as for myself, my specific

19 instructions were to get whatever information I could get

20 from the documents and from the computer, and then check

21 with Mr. Murad and compare both information.

22 The standard operating principle or procedure of

23 the Philippine National Police is to respect the human

24 rights of any suspect or any accused.

25 Q You heard the tape played today, did you not,

2466

1 sir?

2 A Yes, ma'am.

3 Q In the parts where you heard Mr. Murad crying and

4 his voice changed, do you believe that his human rights were

5 being respected at that time?


7 THE COURT: I will let him answer it.

8 A I can't tell you why he was crying and I can't

9 tell you whether his rights were being respected or not when

10 he was crying. It is true that what we heard was ugly, but

11 because I didn't see what had happened, then I can't do

12 anything about what happened.

13 Q What you heard, do you believe, sir, that that is

14 an indication that his human -- withdrawn.

15 Do you believe, sir, that that was an indication

16 that he was mistreated?


18 Q Did you ever hear anyone accusing Mr. Murad of

19 lying?

20 A Could you clarify that, please.

21 Q When you heard, when you were present while other

22 interrogators interviewed Mr. Murad, did you ever hear any

23 of them accuse him of telling lies?

24 A Like I had previously mentioned, when I go to

25 speak with him, I usually wait, I look in to see if there is

2467

1 anyone else interviewing him. So usually when I interrogate

2 him I am alone.

3 Q When you interrogated him, did you ever accuse

4 him of lying?

5 A No, ma'am.

6 Q Sir, I am going to play a certain segment of the

7 tape that I would like to refer you to.

8 For reference, it is page 7 of the transcript,

9 your Honor, the last five lines, and going over to page 8,

10 first line.

11 (Tape played)

12 Q Now, sir, you were in and out of the

13 interrogation room, is that correct?

14 A Yes, ma'am.

15 Q Is it your testimony that you never saw Mr. Murad

16 being beaten?



19 A Yes, ma'am.

20 Q You never saw him being mistreated in any way?

21 A No, ma'am.

22 Q Listening to the interrogator on this tape, do

23 you recognize the voice of the interrogator?

24 A No, ma'am.

25 Q Did you ever see anyone denying him of water?

2468

1 A I wasn't able to witness the entire

2 interrogation, so I couldn't tell you about this person who

3 denied him water.

4 Q Let's refer to page 25 of the transcript, your

5 Honor, bottom of page 25, top of page 26, starting at the

6 last two lines of page 25.

7 (Tape played)

8 Q Page 26, starting from line 9 on the top.

9 (Tape played)

10 Q Sir, you heard Mr. Murad telling the interrogator

11 that the treatment has become very bad and you heard the

12 interrogator asking him if he wanted more.

13 A I heard that man.

14 Q Sir, isn't it a fact that that evening of January

15 7 Mr. Murad was beaten and tortured in many ways?

16 A No, ma'am.

17 Q Isn't it a fact that urine was forced down his

18 throat when he asked for water to drink?

19 A No, ma'am.

20 Q Did Colonel Garcia instruct you to accuse

21 Mr. Murad of lying so that you can get certain answers?

22 A No, ma'am.

23 Q Did Colonel Garcia inform you or any of the

24 interrogators in your presence to threaten Mr. Murad of

25 being mistreated again if he didn't give certain answers?

2469

1 A No, ma'am. If one of our leaders gives us such

2 an order, I believe that he will have a big case hanging on

3 his neck.

4 Q I would like to refer you to page 28.

5 (Tape played)

6 Q Sir, did you hear Mr. Murad groaning when you

7 listened to the tape just now?

8 A The sound is not so clear for me. That is why I

9 can't really tell if he was groaning.

10 Q Did it sound as though he was gasping for air?


12 THE COURT: I will let him answer it. Go ahead.

13 A Like I mentioned, the sound quality is really not

14 so clear, and I can't really tell what -- excuse me. Like I

15 mentioned, the sound is not very clear and what you may hear

16 may be different from what I hear.

17 Q Sir, isn't it a fact that Mr. Murad had a towel

18 put over his head and held in such a way that it was

19 difficult for him to breathe?

20 A No, ma'am.

21 Q Isn't it a fact that he was choked several times

22 that evening?

23 A No, ma'am.

24 Q I refer you to page 30 of the transcript.

25 (Tape played)

2470

1 Q Sir, at no time during that evening when you went

2 to see Mr. Murad did you ever see him crying, is that your

3 testimony?

4 A I didn't see him crying when I saw him.

5 Q When you listened to the tape just now, did you

6 hear Mr. Murad crying and begging the interrogator to

7 believe him?

8 A I didn't see him crying when I went to see him,

9 but based on what I have just heard, it does sound like he

10 is begging.

11 Q I am now referring to page 34 of the transcript.

12 (Tape played)

13 Q Sir, on the evening of January 7, did you ever

14 hear or see any of the interrogators jeering and laughing at

15 Mr. Murad while he was in pain?

16 A No, ma'am.


18 hear the interrogator laughing?

19 A Yes, I heard a laugh.

20 Q When you listened to the tape just now and after

21 Mr. Murad seems to be convincing the interrogator that he is

22 a Pakistani, he spoke a language other than English. Do you

23 recognize that language?

24 A No, ma'am.

25 Q Do you speak Pakistani?

2471

1 A No, ma'am.

2 Q That language was not Tagalog, your language, is

3 that correct?

4 A It doesn't seem to be Tagalog.


6 hear what appeared to be Mr. Murad vomiting?

7 A It's not clear to me whether he vomited or not.

8 Q At any time when you visited the interview room,

9 was there any indication that Mr. Murad had been vomiting?

10 A No, ma'am, I didn't see anything.

11 Q You testified that at some point you learned, or

12 you determined that Mr. Murad was being taped during his

13 interviews.

14 A Yes, ma'am.

15 Q Was that the evening of January 7?

16 A No, ma'am.

17 Q You were given transcripts of other tape

18 recordings?

19 A Of this particular tape, I didn't see any

20 transcripts.

21 Q Other than January 7 when you participated in the

22 interview of Mr. Murad, did you participate again in other

23 times that Mr. Murad was interviewed?

24 A I remember one tape where I was included --

25 correction. I remember two or three tapes where -- I am

2472

1 sorry -- two or three days after the 7th of January, I was a

2 participant to other interviews with Mr. Murad.

3 MR. GREENFIELD: Let the record reflect, your

4 Honor, that the witness corrected two prior English

5 translations and the third was accepted.

6 THE COURT: I don't know whether they were being

7 corrected or not, but there was a conversation, yes. I have

8 no idea what was said.

9 Q Were any of those conversations taped?

10 A I remember that time I actually saw the recording

11 device there while we were interviewing him.

12 Q On the evening of January 7 when you were

13 conferring back and forth with Mr. Murad, were there

14 times -- withdrawn.

15 You conferred with Mr. Murad to verify certain

16 information, is that correct?

17 A Yes, ma'am.

18 Q When you conferred with him, you made comparisons

19 with your notes from the computer?

20 A I would compare the leads I would get from the

21 computer and the documents that I got from the PSG with what

22 Mr. Murad would tell me.

23 Q And you would also confer with Colonel Garcia?

24 A I would show Colonel Garcia what developments I

25 had gathered from the documents after I also speak to

2473

1 Mr. Murad.

2 Q Were there times that you were given certain

3 answers to questions by Mr. Murad that were different from

4 answers that he may have given to you -- withdrawn.

5 Were there times that Mr. Murad gave you answers

6 to certain questions?

7 A Yes, there were times.

8 Q Were there times that those answers were

9 different from answers that he would give to the same

10 questions at the later time that you conferred with him?

11 A When I would speak with Mr. Murad, I noticed that

12 he was easy to talk to and pretty much his answers were

13 consistent from before and after.

14 Q During the time that you spoke to him, the

15 several times that you spoke with him that evening, did you

16 ever see anyone giving him anything to eat?

17 A I believe that he was fed because it is our

18 standard operating procedure that a prisoner or an accused

19 person be fed, and they eat, we feed them what they can eat.

20 We believe, I believe that Muslims do not eat pork.

21 Q Were you present that evening when he was fed?

22 A No, ma'am, but to my knowledge what is fed is

23 what he could eat according to his religion.

24 Q Mr. Murad was in your custody for how long?

25 A I can't tell you the exact number of days when

2474

1 Mr. Murad was in our custody, but he was with Intelligence

2 Command from two to three months. I would have to base my

3 estimate from the time he was turned over to us by the PSG

4 and he stayed with the Intelligence Command to the time when

5 he was turned over by the Philippine government to the U.S.

6 authorities.

7 Q On the evening of January 7 when you went to the

8 interrogation room and saw other interrogators interviewing

9 Mr. Murad, did you ever see them using notes, having papers

10 in their hands while they were talking to Mr. Murad?

11 A Like I said earlier, I didn't see the entire

12 group around Mr. Murad interrogating him, but I would

13 presume that they would have had notes.

14 Q You stated that there are times that when you

15 went to the interview room you were not able to speak to

16 Mr. Murad because other people were interrogating him. Is

17 it fair to say that you saw that he was being interrogated

18 and that is how you knew that he was being interrogated?

19 A Before one goes in the interview room, you have

20 to deal with the guards outside. So what I would do is, I

21 would ask the guards outside is there anyone working with

22 him, and sometimes when there is nobody working -- when

23 there are people working with him, then I wouldn't go in.

24 Q During the evening of January 7 when you went to

25 the interview room, at any one time was there more than one

2475

1 person conferring with Mr. Murad at the same time?

2 A I couldn't tell you how many because I didn't

3 really see how many people there were in totality inside the

4 interview room.

5 Q Did you ever see more than one person at any one

6 time in the room at the same time with Mr. Murad?

7 A No, ma'am, because I don't join the entire group

8 when they ask questions.

9 Q I didn't ask if you had joined the group. I

10 asked you, did you see more than one person in the room with

11 Mr. Murad at any given time when you visited the interview

12 room?

13 A When I went in there, I saw his guard.

14 Q On that evening was the blindfold ever removed

15 from Mr. Murad's face?

16 A I didn't see his blindfold removed when I went to

17 see him.

18 Q Did you ever see him, when you visited with him

19 did you ever see him with any papers or books or anything in

20 his hand?

21 A No, ma'am, the table was clean.

22 Q How many interviews other than January 7 did you

23 participate in with respect to Mr. Murad?

24 A I remember participating in one interview with

25 him.

2476

1 Q To your knowledge -- withdrawn. Did that

2 interrogation take place also at the same interrogation

3 room?

4 A Yes, ma'am.

5 Q To your knowledge, did all the other interviews

6 or interrogation of Mr. Murad take place in the same burnt

7 out building?

8 A I couldn't tell if the other interviews were held

9 there or another room, but the interview that I was present

10 in was held there.

11 Q Do you know if the interview took place in that

12 same burnt out building?

13 A Like I said, ma'am, I didn't participate in the

14 other interviews, so I couldn't tell you.

15 Q Who was in charge of Mr. Murad during the two to

16 three months that he remained with the Intelligence Command?

17 A To my knowledge, the person in charge of the

18 security is Mr. Phillips.

19 Q Did you confer with Mr. Phillips during the three

20 months that he was in charge of Mr. Murad?

21 A For us, we have this work concept of

22 compartmentalization, and so you generally pay attention to

23 your own work. What he does in his own work is his

24 business.

25 Q Did you have anything to do with Mr. Murad during

2477

1 the two to three months that he was in custody with the

2 Intelligence Command group?

3 A Usually if I have to do some followups on any

4 leads, then I would speak to, I would go to Mr. Murad on

5 orders of Colonel Garcia.

6 Q Apart from January 7, how many times did you

7 speak with Mr. Murad?

8 A I couldn't tell you how many times exactly, but

9 during his stay at Camp Crame, I would go to him whenever I

10 had to clarify certain leads.

11 Q Did you see him every day?

12 THE INTERPRETER: Could the interpreter hear --

13 Q Did you see Mr. Murad every day?

14 A Ma'am, I need a clarification. Do you mean you

15 want to know if I saw him every single day after the 7th of

16 January until the day he was turned over to the FBI?

17 Q That is correct.

18 A No, ma'am.

19 Q Did you see him every other day?

20 A That really depends. I don't know if I could

21 even tell you that I saw him every other day. I saw him

22 only when I had to confer and confirm certain leads with

23 him.

24 Q Did you see him at least three times a week?

25 A I am not sure, ma'am. That is why I can't be

2478

1 certain about the frequency.

2 Q Did you see him at least every week?

3 A From the time I saw him first to the time he was

4 turned over?

5 Q Yes. Did you see him at least once a week?

6 A In the subsequent weeks, I also got instructions

7 regarding other matters, regarding our other jobs. So I

8 couldn't tell you if I saw him every week after the 7th of

9 January.

10 Q Could you approximate how often you saw Mr. Murad

11 over the two, three months that he spent in the Philippines

12 with the Intelligence Command group?

13 A It would really be very awkward for me to even

14 approximate the time. I would see him as the need arises

15 and there were times when I would even send my subordinate

16 to get information from him.

17 Q What is the name of your subordinate?

18 A Mr. Jingo Rivel.

19 Q When Mr. Rivel goes to see him -- when did

20 Mr. Rivel go to see him?

21 A Mr. Rivel would go to the interview room where

22 they would talk.

23 THE COURT: We will stop right there for now, and

24 at least we will take a break. Ladies and gentlemen, go

25 ahead.

2479

1 (Jury excused)

2 THE COURT: The reason I had to break in is one

3 of the jurors feels sick. I don't know whether it will be

4 the end of the day or not. I just don't know. I will find

5 out and let you know. We will at least take 10 for now.

6 (Recess)

7 THE COURT: I am here to report that the juror is

8 not feeling well enough to continue. It is now 10 minutes

9 after 4. What's the difference? So 20 minutes out of a

10 trial day is nothing to get excited about. I sent them

11 home.

12 Today is Thursday. Monday at 9:30, we will

13 continue on. Do you have much left with this guy?

14 MS. BARRETT: No, your Honor. I actually can

15 finish in a half hour.

16 THE COURT: David, do you have much with this

17 fellow?

18 MR. GREENFIELD: I would like to review the tape

19 and see what I will incorporate into my cross. Otherwise,

20 less than an hour, without that.

21 THE COURT: Hopefully you will have a short

22 redirect and other people.

23 MR. SNELL: Your Honor, there is virtually

24 nothing that we are considering at this point. To put

25 everyone on notice, there is a tape, as the witness

2480

1 testified, of an interrogation that he did, and we are

2 considering whether we might be able to introduce a section

3 of that interrogation, because I think it relates to some of

4 the cross-examination that was done here.

5 THE COURT: Those have all been turned over?

6 MR. SNELL: Yes. We are working on a transcript

7 and we will turn it over immediately once it is in final

8 form.

9 THE COURT: Which tape is it? Let them know.

10 MR. SNELL: We will let everyone know.

11 THE COURT: Before the night is out, I want you

12 to let them know exactly what tape you are talking about.

13 MR. SNELL: I can say now that the content is

14 where they are discussing the flight simulator, if that

15 helps anyone.

16 THE COURT: It doesn't help me.

17 Monday, 9:30.

18 (Proceedings adjourned until 9:30 a.m., Monday,

19 July 22, 1996)

20

21

22

23

24

25

2481

1

2 INDEX OF EXAMINATION

3 Witness D X RD RX

4 ALBERT I. D. FERRO...............2419


6 Exhibit No. Marked Received

7 760 ........................................2458

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2482


8 July 22, 1996 9:35 a.m. 9 Before: 10 HON. KEVIN THOMAS DUFFY, 11 District Judge 12 APPEARANCES 13 MARY JO WHITE, 14 United States Attorney for the Southern District of New York 15 DIETRICH SNELL, MICHAEL GARCIA, 16 Assistant United States Attorneys

17 ROY KULCSAR, Legal advisor for defendant Yousef 18 CLOVER BARRETT, 19 BERNARD UDELL, Attorneys for defendant Murad 20 DAVID GREENFIELD, 21 Attorney for defendant Shah

22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD, CHRIS MASAOAY MIRA RIVERA 24

25

2483

1 (Trial resumed)

2 (Jury present)

3 THE COURT: I assume we are not going to be

4 playing any more tapes today.

5 MS. BARRETT: I don't expect to play any more

6 tapes, your Honor, and I don't believe the government is

7 also.

8 THE COURT: You indicated that you were close to

9 finish with this particular witness. Do you think you will

10 be finished with him soon?

11 MS. BARRETT: About a half hour, your Honor.

12 THE COURT: Fine. David, are you going to be

13 long with this witness?

14 MR. GREENFIELD: It could be somewhat longer than

15 I thought, your Honor. Honestly, I am having a hard time

16 determining the length of cross because of both the

17 interpretation and also what I believe is the lack of

18 responsive answer.

19 MR. KULCSAR: Your Honor, good morning.

20 THE COURT: Good morning. Does it feel strange

21 there to you?

22 MR. KULCSAR: Yes, very.

23 Your Honor, the reason I am taking this

24 opportunity to address the court is that I am sure the court

25 is aware that between Friday and today there has been a

2484

1 substantial amount of publicity both on television and in

2 the newspapers concerning the Flight 800 and the unfortunate

3 speculation by former law enforcement persons and news

4 personnel, news people, as to the cause of the explosion on

5 the airline. I did not see but I was told by a number of

6 people that on Friday ABC network news Peter Jennings in

7 point of fact carried a story -- as I understand it they had

8 information from some law enforcement source --

9 unidentified, obviously -- that the source had received some

10 kind of correspondence from a group or a person that claimed

11 responsibility for the explosion and that this person or

12 group caused this explosion in retaliation for the capture

13 and arrest and prosecution of Mr. Yousef. Mr. Garcia and I

14 spoke about it and we were trying to get a transcript. I

15 don't know if Mr. Garcia was able to get one as yet.

16 MR. GARCIA: Your Honor, I have heard about this

17 news story. I think that we were able to obtain a

18 videotaped copy of the news story. I haven't seen it yet.

19 My understanding is that there is no quote from a named or

20 unnamed law enforcement source but that a former law

21 enforcement official is on the TV speculating. But again, I

22 haven't seen the tape yet.

23 MR. KULCSAR: I understand that there was another

24 story again on ABC of a similar nature on Saturday. I was

25 told by a number of other people that on Channel 13 on

2485

1 Sunday morning they had some kind of news program during

2 which they had some retired FBI person and that person went

3 into an extensive discussion about the fact that Mr. Yousef

4 was alleged to have carried an explosive device onto a

5 Philippine Airline jet and a similar device in the lavatory,

6 and how that type of device could very well be the same type

7 or similar device as caused the explosion on Flight 800, and

8 then there was some type of group discussion. Obviously

9 there has been widespread publicity in the various

10 newspapers.

11 My concern is that I am sure the jury is doing

12 its best to adhere to your Honor's admonishments, but I

13 think that logic might dictate that it is very hard for them

14 to avoid some kind of contact with it, for the simple reason

15 that anyone that knows anything about their involvement as

16 jurors perhaps might bring to their attention what they

17 might otherwise have avoided.

18 So I am not suggesting that they are not

19 fulfilling their obligation or commitment to the court. I

20 am suggesting that even with that there is a strong

21 likelihood that it has been brought to their attention by

22 other persons, and I would suggest that some type of inquiry

23 at this point by your Honor is warranted with respect to

24 what in particular they may have heard. Your Honor may want

25 to do that on a one-on-one basis.

2486

1 THE COURT: Not yet.

2 MR. GREENFIELD: Your Honor, if I might add.

3 THE COURT: I will explain to you why.

4 Yes.

5 MR. GREENFIELD: If the court please, I handed up

6 earlier representative articles. I don't know if the court

7 has them in hand at this point.

8 THE COURT: These things?


10 THE COURT: I saw somebody left them here.

11 MR. GREENFIELD: One is an article in Saturday's

12 New York Post that points directly to Mr. Yousef. Then I

13 think there are articles or an article in the Sunday Daily

14 News doing the same thing, and also, I believe, the Post.

15 THE COURT: Sunday Post?

16 MR. GREENFIELD: Yes, and I think I have given

17 those articles to the court also.

18 Particularly with the News, I brought to the

19 court not only the article that indicates the writer's

20 belief that Mr. Yousef was involved but 20 pages

21 consecutively of stories dealing with speculation as to the

22 cause and also the unfortunate plight of the families and

23 things of that nature.

24 Clearly we have passed the point where we can

25 speculate whether or not a jury has possibly seen any of

2487

1 these articles. We know that they have seen, we know that

2 they have heard, we know that they have watched on TV. Even

3 if they watched the Olympics they heard it. No matter where

4 they directed their attention, if they were in communication

5 with or listening to or reading newspapers, watching TV,

6 they had to hear about this.

7 THE COURT: Let me give you one more speculation.

8 MR. GREENFIELD: Certainly.

9 THE COURT: Speculation, one that was tossed out

10 to me. Your client, your client believes that he has a

11 perfectly wonderful shot of being acquitted. He believes

12 also that he would be not acquitted if the case went through

13 at this time. He believes he would be acquitted if there

14 was a mistrial and the government was forced to redo the

15 entire thing, including bringing people from overseas.

16 Therefore your client contacted his buddies on the outside

17 and they are the ones responsible.

18 Is this a possibility? You are about to say no,

19 this could never happen. Believe it or not, someone

20 suggested that to me, and I said what you think I would say.

21 MR. GREENFIELD: Am I allowed to put those things

22 on the record?

23 THE COURT: No. God forbid that we would shock

24 the Court of Appeals.

25 Utter nonsense, but that is the wild speculation

2488

1 that is going in. To say that we should at this point go

2 and do something precipitous is something that I refuse to

3 do, and that is why I refuse to do it.

4 I will tell you this much: By Wednesday noon I

5 will have talked to each member of the jury. I haven't

6 talked to any of them yet. If we don't have some resolution

7 today and we don't have some resolution tomorrow, I will do

8 it without resolution and talk to each one of them. But

9 between now and then I am not going to move, not yet.

10 Running in and doing something, coming off and saying

11 something is perhaps the worst possible thing we can do.

12 The only thing I wanted to make sure that the

13 jury is constantly reminded of is that all of this stuff is

14 wild speculation and that they should not be involved in

15 wild speculation, that is not their kind of work. That I

16 will be telling them.

17 But by Wednesday if not before, I will be talking

18 to each one of them, for sure. I am not insensitive as to

19 what is going on here. By the way, this thing about your

20 client, it didn't come from law enforcement or anybody

21 connected with law enforcement. It is the wildest thing I

22 ever heard. I am not going to tell you who but it is just

23 absolutely off the wall wild.

24 MR. GREENFIELD: It certainly is off the wall.

25 THE COURT: Maybe he doesn't think it is but I

2489

1 told him no. But I am not going to do anything, I am going

2 to try to get some more facts.

3 MR. GREENFIELD: Will we be participating --

4 THE COURT: Most likely you will be able to watch

5 it and listen, yes. Whether you will be participating in

6 the sense of asking questions directly, the answer to that

7 is no, but you will have input, for sure, and you will be

8 there watching it happen. Action.


10 THE COURT: As of just a few moments ago we were

11 still missing one juror. I will go back and check it out.

12 However, this guy has been a problem for a long time. If he

13 is not here, I am going to seriously consider going ahead.

14 I will come out and talk to you about it. Got the picture?

15 I will be right back.

16 MR. GREENFIELD: With respect to the Fridays, has

17 the jury voted --

18 THE COURT: Yes, we are going to start the first

19 Friday in August.

20 MR. GREENFIELD: If the court can perhaps work

21 out some sort of schedule, giving us an hour later start

22 possibly so that we can take care of pressing matters in the

23 office, like paying bills?

24 THE COURT: Don't bother. They don't bother

25 paying your bills, why should you bother paying theirs? Be

2490

1 right back.

2 (Recess)

3 ALBERT I.D. FERRO, resumed.

4 THE COURT: Guys, over the last weekend or so

5 there has been intense speculation bounced off everybody,

6 mainly, I think, because the press needs something to say.

7 Everybody is looking for answers in connection with this

8 incident out here on Long Island, the airplane crash.

9 Nobody has answers so they make up speculation.

10 You are not dealing in speculation, I am not

11 dealing in speculation. I hope to God you avoided it, but

12 if you couldn't avoid it, just put it down to intense

13 speculation. It's like when you go outside and dream up the

14 greatest story you can and then go and see if somebody will

15 print it, you know, or if they don't print it, call up your

16 friends in the television studio and say hey listen, why

17 don't you interview me today. When they start interviewing

18 each other, by the way, guys, you know that there is very

19 little hard news going, and apparently there was an awful

20 lot of that kind of stuff going on.

21 One way or the other, your oath is to do your job

22 based on the law and the evidence, not let any speculation,

23 not let this, that or the other thing interfere with you. I

24 hope to God that you will follow that and you will continue

25 to follow it.

2491

1 OK, we were in the midst, Miss Barrett, of your

2 cross-examination. So we will pick up from there.


4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2492

1 CROSS-EXAMINATION, continued

2 BY MS. BARRETT:

3 Q. Good morning, Major.

4 Am I correct in stating that you testified that

5 Mr. Murad was in custody for about two to three months?

6 A. Yes, ma'am, he was in the custody of the

7 Intelligence Command for that amount of time.

8 Q. During that time did he always remain in the

9 detention center at Camp Crame?

10 A. To my understanding, he was there during that

11 time, but I didn't see him every day so I can't vouch that

12 he was there every single day.

13 Q. During the times that you saw him over that

14 three-month period, was he always blindfolded?

15 A. I don't remember if he was blindfolded the whole

16 time, but that first week when he was being brought to the

17 interview room, he was blindfolded.

18 Q. Did you at any time ever see Mr. Murad at any

19 place other than in the interview room?

20 A. When he was with the Intelligence Command, I

21 would see him only in the interview room.

22 Q. I believe it was also your testimony that Major

23 Phillips was in charge of the security of Mr. Murad, is that

24 correct?

25 A. Yes, to my knowledge it is Major Phillips who was

2493

1 given the instructions to take care of Mr. Murad's security.

2 Q. To your knowledge, was that Major Phillips'

3 responsibility for the time period that Mr. Murad was in

4 custody?

5 A. Yes, to my knowledge, yes.

6 Q. When you went to interview, when you went to

7 speak to Mr. Murad in the interrogation room, were there

8 times that you saw Major Phillips?

9 A. When I speak with Mr. Murad, he would be speaking

10 only with me. There would not be any other person there.

11 Q. When you go to the interrogation room, am I

12 correct in stating that there are security guards there?

13 A. I would not let the guard go in the room, I would

14 just let him stay outside, because I noticed that in my

15 conversations with him and in my relationship with him, he

16 was quite cooperative.

17 Q. Is it fair to say that while he was in custody he

18 was being guarded?

19 A. Yes, ma'am.

20 Q. Where would the guards be in relation to

21 Mr. Murad when you saw him?

22 A. Sometimes they would be outside the door but

23 sometimes they would just be around the vicinity. They had

24 to be available for any other responsibilities that they

25 might be given, or to satisfy any needs that Mr. Murad would

2494

1 have.

2 Q. Are you saying that there are times that

3 Mr. Murad was alone?

4 A. I can't say that, ma'am, because I wasn't there

5 all the time.

6 Q. When you were there, did you ever go to the

7 interrogation room and find Mr. Murad alone?

8 A. What I mean to say, ma'am, is that whenever I go

9 to see him in the interrogation room there is a guard.

10 Q. When you went to see him was there generally only

11 one guard or more than one guard?

12 A. Generally I would see only one guard.

13 Q. Would that be Major Phillips sometimes?

14 A. No, ma'am. Major Phillips is a high official and

15 the people guarding Mr. Murad would be subordinates.

16 Q. To your knowledge, did Major Phillips participate

17 in the interrogation of Mr. Murad?

18 A. I couldn't say if he was a participant because I

19 didn't see him participating in interrogating Mr. Murad.

20 Q. I believe you stated, sir, that even though you

21 did not participate in every interrogation, that you became

22 aware that much of the interrogation of Mr. Murad was taped,

23 is that correct?

24 A. Yes, ma'am.

25 Q. And I believe you also stated, sir, that those

2495

1 tapes were turned over to you at some point.

2 A. Yes, ma'am.

3 Q. And transcripts were made of those tapes?

4 A. The interviews that were assigned to me, we were

5 able to make summaries of those.

6 Q. Did you participate in the transcriptions of the

7 tapes?

8 A. When I would be conducting the interview, I would

9 also take notes while the interview was progressing, and the

10 record that would be completed from the tape would be

11 something, would be a document that is apart. What my

12 subordinates come up with regarding transcribing the tapes

13 would be submitted to me, since I am their chief.

14 Q. What did you do with those transcripts?

15 A. We would use the transcripts so that we may

16 continue further questioning, or so that we may gain leads

17 for the further investigation.

18 Q. While Mr. Murad was in your custody, isn't it

19 correct that you were also in contact with the FBI?

20 A. When we finally informed the FBI regarding their

21 plan, that is, the bombing of the aircraft, that is when the

22 cooperation started between our government and theirs.

23 Q. Do you recall at what point that you started

24 talking to the FBI regarding Mr. Murad?

25 A. The responsibility or authority for coordinating

2496

1 with the U.S. government did not rest in my hands. Rather,

2 it would rest in higher officials' hands, for example, my

3 boss himself, Colonel Garcia. We who are much below, much

4 lower than these officials, would just get instructions.

5 For example, we provide information to the FBI as the need

6 arises.

7 Q. When you provided information as the need arises,

8 who did you speak with at the FBI?

9 A. Once a certain matter has been cleared by my boss

10 regarding providing information to the FBI, I would

11 generally speak to Mr. Frank Pellegrino.

12 Q. Did you speak to Mr. Pellegrino in January of

13 1995?

14 A. Maybe I spoke with him but only once the holy

15 Pope had left our country.

16 Q. How long after the Pope left did you speak with

17 Mr. Pellegrino?

18 A. I can't remember the exact date, but possibly

19 January.

20 Q. Am I correct in stating that the Pope left Manila

21 around the 16th of January?

22 A. I can't remember exactly when he left, but if

23 that is the information that you got, perhaps you are right.

24 Q. Would you have spoken to Mr. Pellegrino just a

25 few days after the Pope had left?

2497

1 A. I can be sure that I spoke with him in January.

2 As to the exact date, I can't really tell you that because

3 those times were so uncertain and so chaotic.

4 Q. In any event, when you started speaking to him in

5 January, how often did you speak to Mr. Pellegrino while

6 Mr. Murad was in custody?

7 A. Again, I can't tell you exactly how often I would

8 see him, but Mr. Pellegrino and his team came to see us and

9 I had something to do with them regarding documents and

10 computers. They were interested in fingerprinting. So I

11 had something to do with him during his stay.

12 I would like to add also that he was interested

13 in the laptop computer.

14 Q. You stated just now that your subordinates made

15 transcripts of the tape recordings that were made of

16 Mr. Murad's interrogation.

17 A. What I know is, I made transcripts of the summary

18 of the interview that was conducted with him.

19 Q. The tapes that were made, am I correct in stating

20 that transcripts were made of those tapes?

21 A. If I am understanding you right, when you talk

22 about transcripts you are talking about a word-for-word

23 translation of what was said in the tape. We don't do that.

24 We only make a brief summary of what was in the interview.

25 Q. And those brief summaries were taken from the

2498

1 tapes -- withdrawn.

2 Those brief summaries that were made, were they

3 made from listening to the taped conversations?

4 A. My participation is this: The brief summary of

5 the subsequent tapes were made by my subordinates.

6 Q. Did you make any summaries after listening to any

7 tapes?

8 A. Yes, ma'am. The following week when I conducted

9 the interviews, I made a summary of that.

10 Q. Did you make the summary of the tape that was

11 recorded on January 7?

12 A. I would like to repeat myself, ma'am. I was not

13 the person conducting that interview that 7th of January, so

14 I did not make the summary.

15 Q. After the tape was made on January 7, do you know

16 if a summary was prepared of that tape?

17 A. I don't know if there was a summary, nor do I

18 remember if a summary was made of that tape.

19 Q. Of the summaries of the tapes that were made, are

20 those some of the documents that were turned over to the

21 FBI?

22 A. I don't know if summaries of the tapes were

23 turned over to the FBI. According to the receipt that I

24 made regarding the items that I turned over to the FBI,

25 these covered the documents that I personally handled along

2499

1 with the laptop computer.

2 Q. When summaries were made of the tapes by your

3 subordinates, were they then turned over to you?

4 A. Yes, ma'am.

5 Q. What did you do with these summaries after you

6 received them from your subordinates?

7 A. The first thing I would do is I would inform my

8 superior, Colonel Garcia, as to developments.

9 Q. Does that mean that you discussed the contents of

10 the summaries with Colonel Garcia?

11 A. Yes, ma'am, because we always have to inform him.

12 Q. When you spoke to the FBI, did you also discuss

13 the contents of those summaries with the FBI?

14 A. What I remember discussing with the FBI was

15 regarding the plan to bomb American aircraft and American

16 establishments.

17 Q. Did any of the information that you had --

18 withdrawn.

19 What did you do with the summaries after you had

20 them, after you received them from your subordinates?

21 A. I would like to repeat myself, ma'am. I would

22 inform my boss, and then my subsequent actions would be what

23 he would tell me to do.

24 Q. What did you do with the summaries? Withdrawn.

25 These summaries, they were made on paper?

2500

1 A. Yes, ma'am.

2 Q. What did you do with those papers that you wrote

3 the summaries on?

4 A. What do you mean to say, ma'am? Did I hide them

5 for safekeeping? Did I put them on my table?

6 Q. When your subordinates prepared them, they handed

7 them to you, is that correct?

8 A. Yes, ma'am.

9 Q. Did you give those papers, those summaries to

10 anyone?

11 A. I would give my boss a copy.

12 Q. A copy of everything, you said, of all the

13 summaries that you made?

14 A. Once a summary is done, I give him a verbal

15 report, and then I give him a copy.

16 Q. Did you keep the originals?

17 A. If I remember right, some of those originals

18 would be with me.

19 Q. With you here in the United States or are they in

20 Manila?

21 THE INTERPRETER: Could the interpreter hear the

22 last.

23 Q. Are these reports here with you in the United

24 States or are they in the Philippines?

25 A. It is in the Philippines, ma'am.

2501

1 Q. Is it your testimony that you never gave any of

2 these summaries to the FBI?

3 A. I can't remember if I handed any summaries to

4 them, but if I would see a receipt that I signed today this

5 morning in front of me, then I could tell you.

6 Q. Other than yourself, who turned over documents

7 from the PNP or from the Intelligence Command group to the

8 FBI?

9 A. Because whenever Mr. Frank Pellegrino would speak

10 to me, he would only speak to me. So I did not see any

11 other officials of the Intelligence Command handing

12 documents or any assorted items to the FBI.

13 Q. But you don't know that for a fact.


15 THE COURT: Yes.

16 Q. To your knowledge, did Colonel Garcia personally

17 speak to Mr. Pellegrino while Mr. Murad was in custody there


19 A. Perhaps, ma'am, because they would speak to our

20 boss Colonel Garcia before they come to us.

21 Q. These documents that you handed over to Agent

22 Pellegrino, am I correct in saying that these were handed to

23 him prior to Mr. Murad being turned over to the FBI?

24 A. Yes, ma'am.

25 Q. Do you know whether any charges were filed

2502

1 against Mr. Murad while he was there in the Philippines?

2 A. What I know was that he was picked up by officers

3 because he violated PD 1866 --

4 MS. BARRETT: Objection to the answer.

5 A. -- which is illegal possession of explosives.

6 THE COURT: I think he is trying to answer.

7 Were there any formal charges?

8 THE WITNESS: I don't know, ma'am.

9 Q. Isn't it a fact that for the three months that he

10 was there he was never brought to court or he was never

11 brought before a judge?

12 A. I can't tell you whether he was requested or

13 brought before a judge because I didn't see that with my own

14 eyes.

15 Q. When you listened to the tape do you recall the

16 interrogator asking Mr. Murad about the Abu Sayaf group?

17 A. I don't remember exactly if he was asked about

18 Abu Sayaf because the questioning was repetitive. Perhaps

19 he was asked about him.

20 Q. Sir, are you familiar with the Abu Sayaf group?

21 A. I know something about Abu Sayaf's group.

22 Q. What is the Abu Sayaf group?

23 A. It's a local extremist terrorist group in our

24 country.

25 Q. Am I correct in stating that prior to January 6,

2503

1 1995, Abu Sayaf has allegedly been responsible for bombings

2 and other antigovernment acts in the Philippines?

3 A. They were suspects in a series of bombings and

4 other terrorist activities.

5 Q. And that includes a pipe bomb explosion that

6 occurred in May 1994, is that correct?


8 THE COURT: If he knows. Go ahead.

9 A. I don't know, ma'am.

10 Q. Do you know if they were suspects in a pipe bomb

11 explosion in November of 1994 at Wendy's San Miguel in

12 Manila?



15 Q. Sir, are you aware that human rights

16 organizations, including Amnesty International, consider the

17 PNP as violators of human rights?



20 Q. Are you aware of incidents as recently as

21 September 1994 where persons arrested by the PNP died of

22 injuries while in PNP custody?



25 MS. BARRETT: No further questions.

2504

1 CROSS-EXAMINATION


3 Q. Sir, I would like to ask you a few questions

4 before we get into -- withdrawn.

5 I would like to ask you a few questions about

6 your command at Camp Crame. Camp Crame itself has more

7 commands there than just the Intelligence Command, is that

8 not correct?

9 A. Yes, sir.

10 Q. There are a number of different commands that are

11 located at Camp Crame.

12 A. Yes, sir.

13 Q. With respect to your job, you work for the

14 Intelligence Command and I think you said the Special

15 Investigation Group, is that correct?

16 A. Yes, sir.

17 Q. On January 7, 1995, how many subordinates were

18 working under your command in the Special Investigation

19 Group?

20 A. What I remember was at that time a red alert was

21 announced, and the only person that I remember who was with

22 me at the time was Mr. Richard Macachor.

23 Q. As the superior in charge of the Special

24 Investigation Group, how many people were working under your

25 command in that Special Investigation Group?

2505

1 A. I am a branch chief, and above me is the chief of

2 the Special Investigation Group, so I cannot tell you

3 collectively, sir, how many people were working at that

4 time.

5 Q. All I want you to tell me at this point is, as

6 the chief inspector assigned to the Special Investigation

7 Group, you had people working under you, is that correct?

8 A. I would like to repeat myself, sir.

9 Q. I know you would, but I would like to get an

10 answer to my question, too.

11 MR. SNELL: Objection. I think there was more to

12 the answer.

13 THE COURT: Yes. If you want to make a comment

14 make it after the answer, not now.

15 MR. GREENFIELD: I am sorry, go ahead.

16 A. I would like to repeat myself, sir. In those

17 hours, the only person who was with me was Mr. Richard

18 Macachor.

19 Q. Let's get off of January 7.

20 THE COURT: That is the problem. During that

21 period of time, the entire month of January, how many people

22 worked for you?

23 THE WITNESS: My particular branch had 10.

24 Q. And you were the superior officer for those 10

25 people?

2506

1 A. Yes, I am the head of our branch.

2 Q. Sir, as of January 1, 1995, how many men, both

3 officers and subordinates, were assigned to the Intelligence

4 Command?

5 A. I haven't memorized the exact number of this

6 chain for command, so I can't tell you the number of

7 officials nor the subordinates.

8 THE COURT: How about, was it a thousand,

9 approximately?

10 THE WITNESS: Maybe, sir. I can't really tell

11 you the exact number.


13 Q. Sir, the compound for the Intelligence Command,

14 how many buildings does it contain? Withdrawn.

15 How many buildings are contained in the compound

16 of the Intelligence Command?

17 A. I am trying to picture and count the number of

18 buildings in that command. It is probably four.

19 Q. Camp Crame itself, approximately how many

20 buildings are within the compound of Camp Crame?

21 A. Maybe it's more than 20.

22 Q. And the Intelligence Command itself, is that

23 separated by some fencing from the rest of Camp Crame?

24 A. Because this is a restricted area, I cannot

25 divulge to you the structure.

2507

1 MR. GREENFIELD: Your Honor, might I ask the

2 court to intercede in my behalf. I don't have any

3 intentions of going over that.

4 THE COURT: Apparently they consider it top

5 secret. Is that correct?

6 THE WITNESS: Yes, your Honor. It is one of the

7 most restricted areas.

8 Q. And it is a heavily guarded area?

9 A. There are guards on the entrances and the exits.

10 Q. Sir, now, if you can, I would like to direct your

11 attention to January 7. I believe your testimony is you

12 arrived at the Presidential Security Group approximately

13 between the hours of 8 and 9 a.m., is that a fair statement?

14 A. We got to the PSG about 9.

15 Q. With respect to what occurred at the PSG on

16 January 7, 1995, did you prepare a report?

17 A. To my knowledge, I didn't make any report.

18 Q. Sir, with respect to January 7 all the way up

19 until the time you turned over the documents to the FBI in

20 March of 1995, did you prepare one single report?

21 A. Yes, sir.

22 Q. And those reports, did you turn those reports

23 over to the FBI?

24 A. I don't remember if I turned over any of my

25 reports to them.

2508

1 Q. Are your reports with you here in the United

2 States?

3 A. No, sir.

4 Q. Sir, when you get to the it PSG on January 7, you

5 received some documents in the conference room, is that a

6 fair statement?

7 A. Yes, on the 7th of January we went to a briefing,

8 and documents and the computer were turned over to us.

9 Q. With respect to the documents only, when you

10 received them on January 7 at the PSG, did you place your

11 initials on each and every one of those documents?

12 A. No, sir.

13 Q. Did you place the date on each and every one of

14 those documents?

15 A. No, sir.

16 Q. Sir, with respect to those documents, did you

17 handle them in a fashion so that you would not either erase

18 or add your own fingerprints to them?

19 A. In those hours we were not wearing gloves when we

20 held those documents, and I would like to add, we didn't

21 bring gloves with us.

22 Q. Sir, when you entered the room, I think your

23 testimony is that there was a meeting already going on in

24 the conference room of the PSG.

25 A. When we entered the room, the officials, Colonel

2509

1 Razon and Colonel Ferrer, were waiting for us.

2 Q. And I believe your testimony was also when you

3 entered the room you saw an attache case on the table, a

4 watch and some batteries, is that correct?

5 A. Yes, sir.

6 Q. Was Chief Inspector Angeles there when you

7 arrived in the room?

8 A. When I got there, I didn't see him.

9 Q. Was he there during the course of the time you

10 were there?

11 A. During my stay there, I didn't see him.

12 Q. Sir, who is Chief Inspector Angeles, by the way?

13 A. To my knowledge, he is assigned to the Western

14 Police District.

15 Q. Sir, there came a time, if I understood your

16 testimony on direct, that after you were in the room some

17 members of the explosive ordinance disposal unit arrived in

18 the conference room, is that correct?

19 A. I saw one man in a black outfit marked EOD, and

20 he was holding what I understood to be a live bomb. This

21 person was wearing an outfit with a patch that said EOD.

22 Q. How long were you in the conference room before

23 this person arrived?

24 A. I don't know how many minutes before I got there

25 or after I got there. All I know was he came.

2510

1 Q. No, no. You testified directly he came after

2 your arrival, is that correct?

3 A. I don't remember whether he was already there

4 when we got there or he arrived after we had been there for

5 a while.

6 Q. Did you testify last week that he arrived after

7 you arrived?

8 A. I don't remember this, sir.

9 Q. You are saying that he had this live bomb with

10 him?

11 A. What I saw was, he was holding this bomb as if it

12 was a live bomb. He was holding it very carefully, like

13 this.

14 Q. And people moved away from the table, not knowing

15 what might be in what you thought to be a live bomb?

16 A. I can't say that they fled away out of fear, but

17 he was holding this bomb, I assumed he was the competent

18 person to hold this.

19 Q. Did he in your presence render it safe so that

20 the meeting could continue on?

21 A. What I mean by a live bomb is that as I saw it,

22 there were things attached to it. So if you wanted to blow

23 it up, you could do so.

24 Q. Like wires, is that what you saw?


2511

1 Q. Watches?

2 THE INTERPRETER: Could the interpreter

3 understand that?

4 Q. Wrist watches?

5 THE INTERPRETER: Could the interpreter

6 understand it as did you see watches or did you see

7 connected watches?

8 Q. Connected watches, yes.

9 A. I didn't see a watch actually connected to the

10 bomb directly, but I saw a digital watch.

11 Q. Were the caps on this bomb that he was handling

12 very, very carefully?

13 A. If I can remember right, I think it was uncapped

14 and he could show us the insides.

15 Q. He uncapped it right in the room?

16 A. To my knowledge, it was a live bomb but it was

17 uncapped so he could show us what was inside, what could be

18 connected to it to make it a live bomb.

19 Q. Was there one pipe or two that you saw in the

20 room?

21 A. I saw one with nothing inside and one with

22 something inside.

23 Q. Sir, when you were in that room, was there any

24 discussion about the Philippine Airline flight 434?

25 A. What we really talked about at that time was --

2512

1 MR. GREENFIELD: Your Honor, I asked a specific

2 question and I have learned enough Filipino that I heard

3 part of the answer already.

4 THE COURT: You did? That's nice. It was going

5 to be stricken anyway. Restate the question.

6 Martha, would you read it back.

7 (Record read)

8 THE COURT: OK. Now, we don't want to know what

9 was discussed, we want to know if there was any discussion

10 about Philippine Airline flight 434.

11 A. No, sir.

12 Q. Was there any discussion in that room with

13 respect to an explosion of the Green Belt Theater on

14 December 1, 1994?

15 A. No, sir.

16 Q. Subsequent to this meeting, did you conduct any

17 investigation with respect to the Green Belt Theater

18 explosion on December 1, 1994?

19 A. No, sir.

20 Q. With respect to Philippine Airline flight 434,

21 subsequent to January 7, 1995, did you conduct any specific

22 investigation?

23 A. The week after the 7th of January 1995, we

24 conducted some investigations regarding Philippine Airline

25 434.

2513

1 Q. Do you recall the dates that you conducted these

2 investigations?

3 A. Perhaps on the 9th after the 7th of January,

4 perhaps around that time one of those days I was able to

5 devote to investigating the Philippine airlines 434.

6 Q. Sir, when you arrived back at your offices in

7 Camp Crame on January 7, I believe you testified it was

8 about 3 p.m., is that a fair statement?

9 A. We returned there about 1 or 2 that afternoon.

10 Q. And as soon as you get back there, you begin to,

11 I think you said, study the documents you received at the

12 PSG?

13 A. Yes, sir.

14 Q. And you testified on direct examination you began

15 to compare them to documents you had previously gotten, is

16 that right?

17 A. Yes, sir.

18 Q. When did you get these documents?

19 A. For the documents that I had with me, I mean the

20 other information I have regarding other threat groups that

21 exist in our country.

22 Q. Other what?

23 A. Threat groups.

24 Q. Threat groups.

25 With respect to those documents, did you ever

2514

1 make copies of those documents and turn them over to the

2 United States government?

3 A. No, sir.

4 Q. When you got back to Camp Crame with respect to

5 the documents you received at the PSG, did you then put your

6 initials or the date on each and every one of those

7 documents?

8 A. No, sir.

9 Q. On January 7, 1995, or at any time thereafter,

10 did you send these documents to the NBI for fingerprint or

11 handwriting analysis?

12 A. No, sir.

13 Q. With respect to the study that you performed on

14 January 7, 1995, did you prepare a written report?

15 A. No, sir.

16 Q. Yes or no, sir. After January 7, 1995, did you

17 receive any other documents from any other commands within

18 the Philippine National Police?

19 THE COURT: Connected to this matter.

20 MR. GREENFIELD: Obviously connected to this

21 matter, your Honor. I am sorry, I will restate the

22 question.

23 Q. On January 7 or thereafter, did you receive any

24 other documents with respect to this case from other members

25 of the PNP?

2515

1 A. I borrowed a book from Major Phillips.

2 Q. Other than that one book that you borrowed from

3 Major Phillips, did you receive any other documents either

4 to study or to hold with respect to this case?

5 A. I also got manuals and books on bomb making from

6 Major Phillips.

7 Q. Other than that, did you receive any other

8 documents or other materials, without being specific as to

9 identifying them, with respect to this case?

10 A. I don't remember receiving any other documents.

11 Q. Sir, I think you described on direct examination

12 that you placed the laptop computer in a steel cabinet, is

13 that right?

14 A. Yes, I placed it in a steel cabinet that is about

15 five feet.

16 Q. And you also put all these documents that you

17 received at the PSG in the same cabinet?

18 A. I put it in another cabinet.

19 Q. I assume that each cabinet is locked at the end

20 of the day when you leave your room. Is that a fair

21 assumption on my part?

22 A. That cabinet is always locked, sir.

23 Q. Does anybody besides you have a key to the

24 cabinet?

25 A. No, sir.

2516

1 Q. Not even Colonel Garcia?

2 A. Yes, sir.

3 Q. Yes, sir, he does or yes, sir, he doesn't?

4 A. He doesn't have a key, sir.

5 Q. So when you are gone on vacation or come to the

6 United States, nobody can get into that cabinet?

7 A. No one could, sir, unless they destroy the whole

8 cabinet.

9 Q. And during this red alert, when you go home and

10 somebody wants to look at the computer or look at the

11 documents, they can't until you come back.

12 A. No, sir.


14

15

16

17

18

19

20

21

22

23

24

25

2517

1 MR. GREENFIELD: Your Honor, would this be a good

2 time for the morning break?

3 THE COURT: Sure. OK ladies and gentlemen.

4 (Jury excused)


6 THE COURT: Miss Barrett, you finished up your

7 cross-examination with two obviously grossly objectionable

8 questions. I have no idea what you are doing. If you want

9 to make a political speech, you will use a forum other than

10 this courtroom. If you don't, then don't ask questions like

11 that. Ten minutes.

12 (Recess)


14 (Jury present)



17

18

19

20

21

22

23

24

25

2518


2 Q. Sir, there came a time in January 1995 when you

3 provided certain documents to the FBI with respect to those

4 documents taken -- withdrawn.

5 There came a time in January of '95 when you gave

6 certain documents to the FBI which you say you received at

7 the PSG on January 7, is that correct?

8 A. The documents that I had given to the FBI, the

9 date when I gave them to the FBI could be found in the

10 receipt that I made.

11 Q. Whatever the date was, you gave certain documents

12 to the FBI in 1995?

13 A. Yes, sir, I handed over documents to the FBI in

14 January of '95 for fingerprinting.

15 Q. Sir, prior to the date you handed those documents

16 over to the FBI -- yes or no -- did you give any of those

17 documents or other documents to members of the PNP?

18 A. None, sir.

19 Q. Sir, no other members of the Philippine National

20 Police ever sought to review or look at one documents that

21 you received on January 7, 1995?

22 A. In our command, the only person that I remembered

23 looking at the documents was my boss.

24 Q. Recollection aside, did you maintain a log in

25 your office as to people who had access or took these

2519

1 documents, from January 7, 1995, and until such time as they

2 were turned over to the FBI?

3 A. We didn't make a logbook, sir.

4 Q. Your recollection is that only Colonel Garcia had

5 access to these documents before they were turned over to

6 the FBI, is that correct?

7 A. It is not only not necessarily just Colonel

8 Garcia who had access to the documents in my branch.

9 Mr. Macachor and Mr. Rivel had access, too.

10 Q. Let me see if I understand this. I am not only

11 talking about your branch, I am talking about anybody in the

12 PNP. Other than Garcia, Macachor and Rivel, did anybody

13 else have access to those documents?

14 A. Are you asking me, sir, are you pertaining to

15 people outside the Intelligence Command?

16 Q. I am pertaining to people outside the

17 Intelligence Command and inside the Intelligence Command,

18 working for the PNP.

19 A. Within the Intelligence Command we were the only

20 people authorized to work with these documents. Outside the

21 Intelligence Command, no one.

22 Q. Sir, if Colonel Garcia wanted a copy of a

23 document, he would have Macachor or Rivel prepare one for

24 him or yourself?

25 A. If Colonel Garcia needed a photocopy of a

2520

1 document, I would make the copy.

2 Q. Sir, with respect to the computer, I believe it

3 is your testimony that on January 7 you get the computer at

4 the PSG, is that right?

5 A. Yes, sir.

6 Q. Were you ordered to enter into a computer and

7 browse it or did you do that of your own volition?


9 again, please.

10 Q. Were you ordered to enter into the computer and

11 browse it or did you do that of your own volition?

12 A. The instruction I received was that we should

13 look into the computer for further information. I

14 instructed a subordinate who was in charge of computers to

15 do so.

16 Q. The subordinate that you instructed was Richard

17 Macachor, correct?

18 A. Yes, sir.

19 Q. What is his rank in the PNP?

20 A. He is a police officer 1.

21 Q. As I understand the ranking of the PNP, the

22 highest is the director general?

23 A. Yes, sir.

24 Q. And then the deputy director generals come next?

25 A. Yes, sir.

2521

1 Q. And then there are three levels of

2 superintendent, starting with chief, senior, and then

3 superintendent?

4 A. What would come after the deputy general would be

5 a director, and after that there would be three levels of

6 superintendents.

7 Q. And then three levels of inspectors after that?

8 A. Yes, sir.

9 Q. And then four levels of senior police officer

10 after that?

11 A. Yes, sir.

12 Q. Senior police officer 4 being the highest, senior

13 police officer 1 being the lowest?

14 A. Amongst the senior police officers, sir?

15 Q. The highest rank a senior police officer can

16 reach is 4, the lowest rank is 1.

17 A. Yes, sir.

18 Q. And then there are two levels of police officer,

19 police officer 2 and police officer 1.

20 A. There is a police officer 3, police officer 2,

21 and the lowest is a police officer 1.

22 Q. Is there anything lower in the Philippine

23 National Police than a police officer 1?

24 A. Amongst the uniform troops, that is the lowest.

25 Q. And those are military?

2522


2 again, please.

3 Q. And those are military?

4 A. No, sir, we are police officers.

5 Q. Sir, you called police officer 1 Macachor down to

6 your office, and he is well versed in computers, as far as

7 you are concerned?

8 A. He is detailed to the computer section.

9 Q. The computer unit of the Philippine National

10 Police -- withdrawn.

11 Is it your testimony that Macachor is a member of

12 the Philippine National Police computer unit?

13 A. No, sir. What I mean to say is that in my branch

14 he belongs to the computer section.

15 Q. Sir, with respect to whatever findings he made on

16 January 7, did you create a report?

17 A. I made a verbal report to my boss Colonel Garcia.

18 Q. So from that I take it you didn't make a written

19 report.

20 A. I didn't make a written report regarding the

21 computer in those hours.

22 Q. Sir, a few days later, I think your testimony is,

23 Macachor is not available and you give the computer to Jingo

24 Rivel, is that right?

25 A. What I meant to say, sir, was, whenever

2523

1 Mr. Richard Macachor was not available, then I would give

2 the computer to Mr. Jingo Rivel, because he is also in the

3 computer section of my branch.

4 Q. Your direct testimony was that on the first

5 occasion when you had this computer, you gave it to Macachor

6 to browse it, isn't that right?

7 A. That night of the 7th of January 1995, I gave the

8 computer to Mr. Macachor so that he could get some

9 information from it.

10 Q. And the next time anybody looks at the computer

11 you give it to Jingo Rivel, isn't that your direct

12 testimony?

13 A. I had said earlier that the following Sunday or

14 Monday, whenever Mr. Macachor would not be available, then

15 Mr. Jingo Rivel would handle the computer.

16 Q. You have no report that indicates that, is that

17 correct?

18 A. Yes, sir.

19 Q. You created no log with respect to the use of the

20 computer, is that correct?

21 A. Yes, sir.

22 Q. And you have described those times as very

23 chaotic and busy, isn't that right?

24 A. I meant to say that on the first time, the 7th of

25 January 1995, we were not -- different groups that were

2524

1 investigated were not organized, but the following Sunday,

2 the Monday and the days that came afterwards we started to

3 get our act together.

4 Q. Sir, there came a time after Jingo Rivel looked

5 at this computer where you say you gave it to Colonel

6 Delfin.

7 A. What I remember was that that Monday evening,

8 that January, Colonel Delfin gave me the instructions that

9 he needed to borrow the computer.

10 Q. Is Colonel Delfin in New York presently?

11 A. No, sir.

12 Q. Did you have a conversation with Colonel Delfin

13 in the Philippines prior to coming here, with respect to the

14 computer?

15 A. I told him that I was leaving but we didn't talk

16 about the computer.

17 Q. Did you sit down with him in his office, say May

18 of this year, and discuss what day he may or may not have

19 taken the computer from you?

20 A. I am not sure, sir, but I don't think so. I

21 don't think we discussed the date, the day or the date when

22 he took the computer.

23 Q. Did you discuss it with Mr. Canlas?

24 A. No, sir.

25 Q. Sir, can you state that as far as you know, while

2525

1 that computer was in your possession, locked in your

2 cabinet, that no one else in the PNP had access to that

3 computer?

4 A. While that computer was in my custody and while

5 it was in the steel cabinet, no one else had access to it.

6 Q. Sir, did you order Macachor or Rivel to add

7 information or delete information from that computer?

8 A. I didn't instruct them to add or delete any

9 information.

10 Q. Do you know if in fact they did?


12 Q. They are also, other than yourself being their

13 direct superior Colonel Garcia is also their superior, isn't

14 that correct?

15 A. Yes, sir.

16 Q. And he had access to that computer before you

17 turned it over to the FBI, didn't he?

18 A. What I know, sir, is, Colonel Garcia had that

19 computer when it was turned over to him by Colonel Delfin.

20 Aside from that, he didn't have it.

21 Q. Sir, is it your testimony that other than that

22 one occasion, that computer was never in the custody or

23 possession of Colonel Garcia?

24 A. There are no other days that they had it.

25 Q. And the same is true for anybody else in the PNP?

2526

1 A. Could you clarify, sir, what you mean? Do you

2 mean to include the times when Colonel Delfin borrowed the

3 computer from me or when Mr. Canlas did so?

4 Q. You don't know firsthand knowledge that

5 Mr. Canlas had possession of that computer, do you?

6 A. Colonel Delfin informed me that he had Mr. Canlas

7 look at it.

8 Q. So other than you being informed, that is the

9 source of your information that he had it, is that correct?

10 A. Yes, sir.

11 Q. Other than Colonel Delfin and Mr. Canlas having

12 possession for that period of time, did anybody else in the

13 PNP have possession of that computer but yourself, Jingo

14 Rivel, or Richard Macachor?

15 A. No one, sir.

16 Q. And if there are any situations where information

17 is added or deleted into the computer during the period of

18 time that it was in your possession, it had to have been

19 done by yourself, Macachor or Rivel, is that correct?



22 A. It is not our procedure to add or delete from

23 that information.

24 Q. That is not my question.

25 MR. GREENFIELD: May the question be read back to

2527

1 the witness, your Honor?

2 THE COURT: Sure.

3 (Record read)

4 A. While that computer was in my custody, it was

5 only the three of us who held that computer.

6 Q. Sir, there came a time when the FBI came to your

7 offices and you turned over documents to them, and that was

8 sometime in January of 1995, is that correct?

9 A. I can't remember the exact date when these

10 documents were turned over to the FBI. If I see the

11 receipt, then I would see the date.

12 MR. GREENFIELD: Your Honor, if the witness could

13 be given a copy of 3527B.

14 THE COURT: I would like to, but I don't have it.

15 MR. GREENFIELD: I will give him, if I may.

16 THE COURT: I don't care, but I don't have it.

17 Q. I show you a copy of 3527B. Would you read it to

18 yourself and see if it refreshes your recollection as to the

19 date on which you turned documents over to the FBI?

20 A. Yes, sir.

21 Q. What is that date?

22 A. The 23rd of January 1995.

23 Q. When you turned these documents over, I would

24 assume they are the documents that you say you received on

25 January 7, 1995, at the conference at the PSG, is that

2528

1 correct?

2 A. Could I see the receipt again, please? I need to

3 verify --

4 THE COURT: Yes, I have a copy of it. Here.

5 A. This item number 26, Hawley's Condensed Chemical

6 Dictionary, was an item that I borrowed from Major Phillips.

7 It did not come from the conference room of the PSG.

8 Q. So other than that one item, the rest came from

9 the conference room of the PSG?

10 A. Number 31 and the Arabic book number 23, I also

11 borrowed those items from Mr. Sonny Phillips. The rest came

12 from the PSG.

13 Q. The items that you turned over to the FBI, were

14 they all the items that you received on January 7, 1995,

15 other than those which you got from Sonny Phillips?

16 A. Yes, sir.

17 Q. Were any items withheld from the FBI on January

18 23, 1995?

19 A. There were some, sir, the computer and other

20 documents.

21 Q. Certain of the documents that were withheld, were

22 they not in your possession or were they in the possession

23 of somebody else in the PNP?

24 A. I was holding it, sir.

25 Q. And the documents that you were holding, those

2529

1 are documents allegedly seized on January 7, 995.

2 A. In my possession were the documents I got from

3 the PSG, documents I got from Mr. Sonny Phillips, and the

4 computer.

5 Q. These people from the FBI were there to test the

6 documents for fingerprints, is that a fair statement?

7 A. What I understood was, the items that were turned

8 over to them on the 23rd of January 1995 were to be tested

9 for fingerprints.

10 Q. Yet you are saying that you withheld certain

11 documents from the FBI on January 23, 1995?

12 A. I did not withhold those other items. They chose

13 these particular items to take with them for fingerprinting.

14 Q. But all the items that you had in your steel

15 cabinet, other than being the computer -- withdrawn.

16 All the documents you had in your steel cabinet,

17 other than those few turned over by Sonny Phillips, were

18 allegedly seized on January 7, 1995, weren't they?

19 A. What I know is that I got certain items from the

20 PSG and I borrowed certain items from Major Phillips. I

21 don't know about any other items that they got on the 7th of

22 January 1995.

23 Q. Sir, among the items that you turned over on

24 January 23, 1995, did you turn over the EZ phone bill?

25 A. Could you repeat that question, sir.

2530

1 MR. GREENFIELD: Would you read it back.

2 (Record read)

3 A. If I read this document right, the EZ phone bill

4 is not listed on this paper, so I didn't turn it over that

5 day.

6 Q. Sir, do you know an individual in the

7 Intelligence Command by the name of Monteagudo, if I am

8 pronouncing it correctly?

9 A. Yes, sir.

10 Q. What is his rank?

11 A. He is a superintendent.

12 Q. Did he have access to these documents?

13 A. I was the person that had responsibility over the

14 documents.

15 Q. I didn't ask you that. I asked you if he had

16 access to it?

17 A. He may have had a chance when he asked me a

18 question once and he looked at one document.

19 Q. Do you recall the date?

20 A. In January.

21 Q. Besides Monteagudo asking to see a document and

22 besides Garcia seeing documents, who else saw documents in

23 January 1995 within the PNP?

24 A. These were the people that I remember verifying

25 these documents.

2531

1 Q. Sir, on January 7, 1995, did you go to 711

2 Quirino avenue, the Dona Josefa building?

3 A. No, sir.

4 Q. After January 7, 1995, did you go to the Dona

5 Josefa building and interview any of the employees there?

6 A. No, sir.

7 Q. In January of 1995, did you review any business

8 documents created at the Dona Josefa, like telephone logs or

9 guard logs?

10 A. I remembered looking at telephone documents but I

11 don't remember looking at the guard books logbook.

12 Q. And you remember looking at these telephone

13 documents in January 1995?

14 A. That is possible, sir.

15 Q. And you took possession of them in January of

16 1995?

17 A. No, sir.

18 Q. Did you ever take possession of them?


20 Q. Did you make copies of them?


22 Q. Where did you see them?

23 A. If I remember, sir, I saw it at the Intelligence

24 Command.

25 Q. Who gave them to you or showed them to you?

2532

1 A. If I remember right, it was at the office of

2 Colonel Garcia.

3 Q. Did you read these telephone records or logs?

4 A. I saw and read the telephone records in passing.

5 Q. Sir, on January 7 or after January 7 of 1995, did

6 you participate in any searches in or around Manila with

7 respect to this case?

8 A. No, sir.

9 Q. Sir, do you learn how many search warrants were

10 executed in the Dona Josefa on January 7, 1995?


12 Q. Sir, I think you testified last week that it was

13 a standard operating procedure of the PNP to respect the

14 human rights of a suspect, is that right?

15 A. Yes, sir.

16 Q. And I think you also said, and correct me if I am

17 wrong, it is not in fashion to inflict pain on a person to

18 get information, is that correct?

19 A. Yes, sir.

20 Q. And then you also said that inflicting pain was a

21 barbaric way of an older life, is that right?

22 A. Yes, sir.

23 Q. That you never had a chance to indulge in these

24 barbaric ways or perform such barbaric conduct, is that

25 right?

2533

1 A. Yes, sir.

2 Q. That you have a new way of convincing a person to

3 talk without using brute force, and I think you said that

4 last week, isn't that right?

5 A. Yes, sir.

6 Q. Just what are the old barbaric ways that were

7 used to get people to talk?



10 Q. Sir, when you say you convince people, do you

11 appeal to their common sense when you convince them?

12 A. To my knowledge, every human being knows what is

13 a basic right or wrong. That is universal to all human

14 beings. Both parties, myself and the suspect, will agree on

15 what is right and wrong because we are basic human beings.

16 If this person knew that he was wrong, then he feels guilt

17 for what is wrong, and then I could attack that wrong. I

18 could convince him then -- rather I could appeal to his

19 sense of what is wrong or right.

20 So to my knowledge, he will tell the truth.

21 Q. Sir, does the Constitution or the law of the

22 Philippines require before you try to convince somebody to

23 talk with you that you should advise them of their right to

24 remain silent?


2534

1 THE COURT: I will permit it. Go ahead.

2 A. We do have that provision, so you could not force

3 a person to say something.

4 Q. You have to advise him of his right to remain

5 silent, is that what you are saying?

6 A. It is their right, sir.

7 Q. Does the law of the Philippines require that an

8 individual have an attorney present before you question him?

9 A. That is the law.

10 Q. On the tape we heard the other day, did you hear

11 anybody advising that man on the tape that he had a right to

12 remain silent?

13 A. I didn't hear anything like that from the tape

14 that we heard.

15 Q. Did you tell him he had a right to remain silent?

16 A. I didn't tell him that, sir.

17 Q. Did you tell him he had a right to an attorney?

18 A. I did not personally advise him that in those

19 days.

20 Q. Sir, is there any time requirement that you have

21 to bring a person before a judge after they have been

22 arrested?


24 THE COURT: No, I will permit it.

25 A. There is, sir.

2535

1 Q. Is that like two months or three months?

2 A. No, sir.

3 Q. What is the maximum time you can hold somebody

4 before they must be charged before a judge?

5 A. That depends on the nature of the crime or the

6 criminal act. If the matter involves national security,

7 then that can be waived.

8 Q. Is that in the Constitution of the Philippines?

9 A. No, sir, it is not written in the Constitution of

10 the Philippines, but in my opinion, when national security

11 is involved, such matters are in other hands.

12 Q. And you can engage in any type of conduct you

13 want to get the results you wish. Is that what you are

14 saying?


16 again, please.

17 MR. GREENFIELD: May it be read to the witness.

18 (Record read)

19 A. That is not right, sir.

20 Q. Sir, one last question -- if the court is

21 preparing for the break, I would like to ask one last

22 question or two.

23 Is there a maximum time limit under the law of

24 the Philippines that you can hold somebody without bringing

25 them before a judge?

2536


2 THE COURT: No, I will permit it.

3 A. Could you repeat that question, sir.

4 Q. Is there a maximum time limit you can hold an

5 individual without bringing him before a judge?

6 A. We follow a certain procedure regarding

7 detention.

8 Q. What is the maximum period you can hold somebody

9 before you bring them before a judge and charge them with a

10 crime?

11 A. I am not sure regarding how much time we are

12 allowed before we bring a person in front of the judge.

13 Q. Doesn't the law of the Philippines require you to

14 bring a person before a judge no later than 36 hours and

15 after 12 hours of arrest?

16 A. If the information you are holding is correct,

17 then perhaps that is the time that is allowed.

18 Q. You are a Philippine police officer, aren't you?

19 A. Yes, sir. Prosecution, regarding prosecution, an

20 appearance in front of the court, that is not a

21 responsibility. That is not the branch's main

22 responsibility.

23 Q. The Intelligence Command is outside the scope of

24 the Constitution of the Philippines, is that what you are

25 saying?

2537

1 A. The Intelligence Command is still within the law

2 of the land. This is work that does not fall within the

3 jurisdiction of my branch.

4 Q. An arrest, an arraignment, bail do not fall

5 within the jurisdiction of your command?

6 A. My explanation to that is this, sir: Our unit

7 does not concern itself with those matters and. In our

8 country, you yourself can perform a citizen's arrest. That

9 is possible. The work of the intelligence unit is very,

10 very different from the work of the local police on the

11 street level. That police officer could arrest and bring a

12 person to the precinct. We don't do that.


14

15

16

17

18

19

20

21

22

23

24

25

2538

1 Q. You just put them in abandoned buildings, is that

2 right?



5 MR. GREENFIELD: Your Honor, I will continue

6 after lunch.

7 THE COURT: All right, ladies and gentlemen, we

8 will take our lunch break now.

9 (Jury excused)

10 THE COURT: 2:00.


12 THE COURT: How much longer?

13 MR. GREENFIELD: Fifteen, 20 minutes.


15

16

17

18

19

20

21

22

23

24

25

2539


2 2:00 p.m.


4 MR. KULCSAR: Unaccustomed as I am to public

5 speaking, I had discussed with Mr. Snell before or at the

6 break with respect to the next witness the government

7 anticipate calling, Ms. Horvath, whose examination on direct

8 I understand will be limited to certain areas of what she

9 did.

10 ALBERT I. D. FERRO,

11 Resumed, through the interpreter.

12 Mr. Yousef has requested that the computer be

13 hooked up in such a manner that it's accessible and usable

14 and functional before the jury with respect to areas of

15 cross-examination, and apparently that's a problem. Should

16 we finish with this witness, and we can discuss it then,

17 your Honor?

18 THE COURT: Sure, fine.

19 MR. SNELL: Fine by me.

20 THE COURT: We'll take it up right after this

21 witness: At some place the record should reflect we're

22 marking various documents turned over by Mr. Greenfield

23 today as Court's exhibits 2001.

24 (Court Exhibit 2001 marked)

25 (Jury present)

2540

1 You guys I see some of you carrying little cups

2 of water out. I thought I tried to get bottles of water for

3 you. Did they show up?

4 JUROR NO. 1: Yes.

5 THE COURT: Okay, fine. One of the jobs of the

6 district judge is taking care of such things, bottled water,

7 so on and so forth. Somebody has got to do it. Absolutely.



10 Q. Sir, it's your testimony that aside from yourself

11 eight or nine others questioned the individual on January 7,

12 1995; is that correct?

13 A. Yes, sir, that's my approximate.

14 Q. And this was done in the offices of the

15 intelligence command?

16 A. Yes, in the interview room of the intelligence

17 command.

18 Q. Well, the interview room or the room in the

19 burned-out building?

20 A. Yes, it was conducted in the interview room in

21 this partly burned building.

22 Q. Now, sir, were all of the people who were

23 questioning members of the intelligence command?

24 A. Yes, I recall that they're all from IC, from

25 intelligence command.

2541

1 Q. Well, did you not testify in this trial last week

2 that they were mostly from the intelligence command?

3 A. Yes, the majority of the people were from IC.

4 Q. Now, of the people who were from the IC, what are

5 their identities?

6 A. I don't remember all of them because I didn't see

7 them all in those hours.

8 Q. These are people you work with on a daily basis,

9 isn't that right?

10 A. My particular group, the SIG, is one group

11 amongst all these other groups within intelligence command.

12 Q. And you don't know the identities of anybody else

13 in the intelligence command but the people in your group?

14 A. What I mean to say, sir, is that all of these,

15 most of these other people are with the IC, but they're not

16 with SIG, my particular group. They have their own offices.

17 They have their own duties.

18 Q. And prior to January 7, 1995, you didn't know the

19 identity of any of those people?

20 A. I'd like to repeat my answer, sir. I know some

21 of them and the others I don't remember.

22 Q. The names of the people you know, what are they?

23 A. I remember Col. Garcia, Lt. Serrano. So far

24 that's all I can recall. And Col. Delfin.

25 Q. And the others from the other commands, did you

2542

1 know their identities?

2 A. I remember Col. Fernandez.

3 Q. What command is he attached to?

4 A. He's with DI.

5 Q. DI. What is DI?

6 A. He's with the directorate for intelligence.

7 Q. Was Mr. Monteagudo there -- withdrawn. Was

8 Superintendent Monteagudo there?

9 A. He may have been there, sir.

10 Q. Well, you know him well, don't you?

11 A. I do know him, but I didn't see him interrogating

12 this person so I can't say that he was actually part of the

13 interrogation.

14 Q. Did you see him the night of January 7th?

15 A. Yes, sir.

16 Q. Did you see him in the partially burned-out

17 building?

18 A. As I had mentioned in my testimony when I go

19 there to the interview room it's usually when there are no

20 other, no other personnel in there. I didn't see him go

21 inside that room. All I know is he was within the vicinity

22 of the intelligence command.

23 Q. Sir, wearing a blindfold during the

24 questioning -- withdrawn.

25 Having an individual wear a blindfold during the

2543

1 questioning, is that one of the ways that you use to

2 convince the individual to answer questions?

3 A. When I say that we try to convince a person to

4 cooperate with us, it doesn't mean that we have to, that

5 that is done by blindfolding a person. It is part of our

6 procedure to blindfold a suspect, especially one whose

7 status is that of a high-risk personality. We would like to

8 keep interrogators' identity safe.

9 Q. Sir, is it the usual course in the Philippines

10 when questioning an individual to have him them wear

11 blindfolds?

12 A. No, sir. This is not standard operating

13 procedure in our country to blindfold a suspect during

14 questioning. This person was a high-level threat as far as

15 we could determine, and we had to keep the security of the

16 interrogators. As far as we were concerned he was suspected

17 of being an international terrorist.

18 Q. Sir, would it also keep your identity from the

19 individual if he was to accuse you of misconduct during the

20 course of the questioning?



23 Q. Sir, it's clear that when an individual wears a

24 blindfold, for whatever reason, he can not learn your

25 identity?

2544



3 Q. Now, sir, the tape that was allegedly made

4 January 7, 1995, was a heading of January 7th placed on the

5 tape itself?

6 A. What do you mean, sir, that it's written on the

7 tape, there are markings, physical markings on the tape it

8 was made on the 7 January, 1995?

9 Q. Not what's written on the tape. Before the

10 questioning begins, does anybody from the Philippine

11 National Police say at the beginning of the tape: "This is

12 January 7, 1995. We are about to question the following

13 individual"?

14 A. I don't know about that, sir. As I had mentioned

15 I wasn't there so I don't know if that was mentioned at the

16 beginning of the tape.

17 Q. You've listened to the tape, have you not?

18 A. Yes, sir.

19 Q. It's not there, isn't that true?

20 A. You're right, sir.

21 Q. Now, sir, after January 7, 1995, did you question

22 any other individuals with respect to this case?

23 A. To my knowledge, sir, I did not interrogate

24 anyone else.

25 MR. GREENFIELD: I have further questions.

2545

1 THE COURT: Any redirect?

2 MR. SNELL: None, your Honor.

3 THE COURT: All right, step down.

4 (Witness and interpreter excused)

5 THE COURT: Next witness.

6 MR. SNELL: Mary Horvath.

7 THE COURT: Is this the witness that I heard

8 about just before? Okay, ladies and gentlemen, I'm going to

9 ask you to step out for a couple of minutes and we'll find

10 out what's going on.


12 THE COURT: Who is going to handle the witness,

13 which one of you guys?

14 MR. SNELL: I am, your Honor.

15 THE COURT: How long is direct of this witness?

16 MR. SNELL: My guess is about 20 minutes to half

17 an hour tops.

18 THE COURT: Are there any other witnesses in

19 line?

20 MR. SNELL: Yes, your Honor. The next witness is

21 David Swartzendruber. I think the 3500 material has been

22 distributed for him as well. My mistake.

23 THE COURT: I see Mary Horvath has FBI laboratory

24 reports; is that correct?

25 MR. SNELL: Yes, your Honor, you're right.

2546

1 THE COURT: David Swartzendruber is from

2 Microsoft, so he's going to be using this thing, also, I

3 gather?


5 MR. KULCSAR: Your Honor, I may have part of an

6 answer to that that may make it easier for the Court, that's

7 why I interrupted, your Honor, I apologize. I understand

8 that from Ms. Horvath that it will not be necessary to hook

9 up the equipment as such before Ms. Horvath testifies to use

10 it during her testimony, so that part of the issue is

11 resolved. That's why I take the liberty of interrupting.

12 But on the second part there is a request, and

13 again, this is, I have a slight difference of recollection

14 with Mr. Snell. But it is my recollection I had said to

15 Mr. Snell a few weeks ago that the only request I had

16 concerning advance notice of witnesses within the guidelines

17 that we've been operating under is when they had an expert

18 testify that I be given sufficient notice to have our

19 experts available in the courtroom, since all of our

20 experts, except for one come, from out of state.

21 I'm not going to speak for Mr. Snell, but

22 Mr. Snell's recollection is that I didn't advise him of that

23 specific request. In any event, given the circumstances of

24 the 3500 material we've received today for the first time

25 for Ms. Horvath which contain handwritten notes of hers in

2547

1 computerese, the request is made that we be allowed to defer

2 cross-examination of her until tomorrow morning. I

3 telephoned our expert last night. Mr. Snell and I spoke

4 over the weekend. And he is available and has made

5 arrangements to fly in to New York --

6 THE COURT: He will be in tomorrow, is what

7 you're telling me?

8 MR. KULCSAR: He'll here before 9 o'clock in the

9 morning.

10 THE COURT: All right. You've got twenty

11 minutes.

12 MR. SNELL: Yes, your Honor. Just so the record

13 is clear on this. All counsel have had Ms. Horvath's

14 reports for many months now, and she is not being called by

15 the government --

16 THE COURT: I assumed that.

17 MR. SNELL: -- she is not being called by the

18 government to give expert testimony here.

19 THE COURT: What is she being called for?

20 MR. SNELL: She is being called to testify about

21 her involvement copying the hard drive computer initially in

22 Manilla, and then copying it again when the computer itself

23 was turned over to the FBI in April of '95.

24 THE COURT: She's a chain of custody person?


2548

1 MR. KULCSAR: That may well be, but I think her

2 handwritten notes go beyond simple chain of custody.

3 THE COURT: It may, but maybe they're not going

4 to put her in for that.

5 MR. KULCSAR: I would suggest or request since

6 it's obvious --

7 THE COURT: We'll hear the woman's direct. If

8 all she is doing is telling us that she, you know, punched a

9 couple of buttons in and made copies and did things like

10 that, I would assume this other guy Swartzendruber -- all

11 I'm doing is looking at his curriculum vitae. I love that

12 word -- it looks like he's the hotshot on computers. He

13 presently works for Microsoft Corporation in Redmond,

14 Washington, I guess it is. So my guess is he's going to be

15 your big computer testify.

16 MR. SNELL: Exactly, your Honor. In fact, we're

17 hoping to do a demonstration of the computer through

18 Mr. Swartzendruber's testimony.

19 MR. KULCSAR: But in any event, my understanding

20 is from the government's position before the Court that

21 Ms. Horvath will be explaining this followed by

22 Mr. Swartzendruber. It's hard for German people to say

23 German words I think, your Honor. I apologize.

24 But in any event we'd like to have our expert

25 available for him. So the only downside would be that --

2549

1 withdrawn down side. What we'd like to have available to us

2 is Ms. Horvath with respect to the 3500 material, the

3 handwritten notations,

4 THE COURT: I hear what you are saying, but --

5 MR. KULCSAR: For example, your Honor, let me be

6 more specific --

7 THE COURT: Is Ms. Horvath an FBI Agent?

8 MR. SNELL: She's an employee of the FBI. I

9 don't think she's actually an agent.

10 MR. KULCSAR: She made copies as best I

11 understand it, as I can glean it.

12 THE COURT: Let her come out and make her pitch

13 about this, and then we'll find out. If that's all there is

14 to it, you know, why the blazes bother going into something

15 that they are not going into, unless you like that? I don't

16 know.

17 MR. KULCSAR: I think my lunchtime conversation

18 with the computer expert he'd like to understand what she

19 says with respect to things like her notes on 3532F, booted

20 laptop, et cetera, which means little, if anything, to me.

21 So that's I guess we can wait until she finishes and then

22 address it, your Honor.

23 THE COURT: You're not that old. All right. I

24 don't know. That's not an "all right." Let me hear the

25 woman's testimony.

2550

1 MR. KULCSAR: Thank you, your Honor.

2 THE COURT: I don't know. Are the rest of you

3 guys interested in cross-examining Mary Horvath?

4 MR. GREENFIELD: Your Honor, reading the reports

5 it seems from 3532A and B if these are her reports and it

6 seems like she did some testing.

7 THE COURT: I have no doubt about that. That I

8 had no doubt about, but I don't think they're introducing it

9 for that. Maybe they will. That's why I'm waiting to

10 listen.

11 MR. GREENFIELD: If she did, it may be an area of

12 examination.

13 THE COURT: If she's testifying as to that. If

14 she is not testifying, unless you guys are interested in

15 filling in the blanks that the government is leaving. I

16 assume Paul went to get somebody.

17 MR. SNELL: I believe she's back there, your

18 Honor.

19 THE COURT: Wherever "there" is. Do we need an

20 interpreter here?

21 MR. SNELL: I don't think so, your Honor. At

22 least not Taglog.

23 (Witness present)

24 THE COURT: Sit down, young lady.

25 THE WITNESS: How are you?

2551

1 THE COURT: Good.

2 MR. SNELL: Your Honor, if I could suggest that

3 maybe she move the microphone to the front.

4 THE COURT: Now, Mary, I want you to know that

5 they've done this with every witness. They tried to accuse

6 them of breaking the furniture, but you've finally done it.

7 THE WITNESS: It's not broken.


9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2552

1 (Jury present)

2 MARY HORVATH,

3 called by the government as a witness,



6 BY MR. SNELL:

7 Q. Ms. Horvath, how are you employed?

8 A. I work for the Federal Bureau of Investigation.

9 Q. And what is your position with the FBI?

10 A. I'm a computer specialist with the computer

11 analysis response team down the laboratory at Washington,

12 D.C.

13 Q. How long have you worked down the lab in

14 Washington?

15 A. Almost three years.

16 Q. Could you tell us a little bit about your

17 background with respect to computers?

18 A. I have a bachelor's degree with a double major in

19 math and computer science, and I'm currently working on my

20 masters in forensic science.

21 Q. What generally are your duties down at the lab in

22 Washington? Could you summarize that for us?

23 A. I perform computer examinations on any evidence

24 that's related to computer material and data.

25 Q. I'd like to direct your attention back to January

2553

1 20, 1995. On or about that date did you get an assignment?

2 A. Yes, I did.

3 Q. What were you asked to do?

4 A. I was asked to travel to Manilla in the

5 Philippines to examine a computer laptop that had been

6 seized from an apartment.

7 Q. Did you go to Manilla?

8 A. Yes, I did.

9 Q. And do you remember what day you arrived?

10 A. I arrived on Sunday, the 22nd, January 22nd.

11 Q. After your arrival in Manilla did you get the

12 chance to examine a laptop computer?

13 A. Yes, I did. I examined it on Monday, January

14 23rd.

15 Q. Where did you see this laptop?

16 A. I saw the laptop at the offices, one of the

17 offices of the PNP.

18 Q. Is that PNP, Philippine National Police?

19 A. Yes, it is.

20 Q. And could you describe the laptop that you were

21 shown.

22 THE COURT: Do you remember which office it was?

23 THE WITNESS: No, sir, I don't.

24 THE COURT: Okay.

25 A. The laptop was a Toshiba model. It was a grayish

2554

1 in color, small laptop portable.


3 be shown Government Exhibit 301 in evidence?

4 Ms. Horvath, will you please take a look at that

5 and tell us if you recognize it?

6 A. Yes, I do.


8 A. It appears to be the same laptop that I examined

9 in Manilla.

10 Q. Do you remember who showed you the laptop?

11 A. I don't remember many of the personnel that were

12 there. There's only two of the PNP officers that I do

13 remember and I'm not sure which of the two handed it to me.

14 Q. Now, what did you do --

15 THE COURT: Do you know a name for them, either

16 one?

17 THE WITNESS: The two first names are the only

18 names I remember one was Burt and one was Alex.

19 Q. What did you do after you were shown the laptop?

20 What's the first thing you did?

21 A. The first thing we do, I had brought an

22 international converter with me because I wasn't sure the

23 power source that it required, but upon examining any

24 computer it's procedure for us to supply our own bootable

25 diskette which is a DOS diskette that we use in the floppy

2555

1 drive of the computer, and powered it on, and upon the

2 powering on of the computer it reads from the floppy

3 diskette a write blocker which prevents us from doing any

4 modifications to the hard drive at all.

5 Q. What is the hard drive? Could you just define

6 that for us?

7 A. The hard drive is an internal storage within the

8 laptop that can hold multiple, multi pieces of data

9 depending on the size of the hard drive.

10 Q. Now, after you installed the power supply and

11 used your bootable diskette --

12 A. Yes.

13 Q. -- what did you see?

14 THE COURT: Look, I know that you and many people

15 of your age grew up with computers, so on and so forth. But

16 there are a couple of old duffers in this courtroom, mainly

17 me, okay? The diskette is that floppy disc that you stick

18 into it the 3 by 5 or is it the --

19 THE WITNESS: It's called a three and a half inch

20 diskette because it's approximately three and a half by

21 three and a half inches.

22 THE COURT: That you stick in there, right?

23 THE WITNESS: You stick in this A drive here,

24 this floppy drive.

25 THE COURT: That's in the front on this

2556

1 particular model?

2 THE WITNESS: Correct.

3 THE COURT: Okay. Now, you said it was bootable

4 which means what? That this would come up, the disc would

5 come up first, is that what it is?

6 THE WITNESS: Yes, a typical computer if it's set

7 up in normal operation will typically first look to see if

8 there's any diskette within the A drive. If it's not there

9 it will then begin booting up, a process that is stored on

10 the internal drive. Because I put a bootable floppy

11 diskette within the A drive it will boot there first

12 circumventing the hard drive.

13 Bootable means that it contains an operating

14 system which the mechanic of the laptop will understand and

15 know how to operate so that this comes up into a working

16 format for a user.

17 THE COURT: During your testimony do me a favor,

18 okay? A million years ago when I was young, I met a guy who

19 was a Chief Judge, now retired Chief Judge on the Court of

20 Appeals for the Second Judicial Circuit, perhaps the

21 greatest Judge in United States history, a man by the name

22 of Learned Hand. Learned told me to please, he said, for

23 judges, put it in Mother Goose language, okay? Many times

24 that way they will understand it, indicating that was the

25 only way he understood things. Well, not quite. But it

2557

1 works particularly for me, and on this stuff that I know I

2 have no real background about, do me a favor, in your

3 testimony make it in Mother Goose language?

4 THE WITNESS: Yes, sir, I'll try.

5 THE COURT: Okay, thanks.

6 Q. Ms. Horvath, what did you see after you put the

7 diskette into the, you said the A drive of the laptop?

8 A. Yes, into the floppy drive. What I saw was the

9 basic operating system at which point I can enter user

10 commands and tell the machine what I would like it to do.

11 It would normally, based on looking at what the contents of

12 the hard drive, it would normally, if I turned it on without

13 a diskette within the floppy drive, it would normally run a

14 program called Windows automatically, but because I

15 circumvented that process I'm at what is called a command

16 prompt level where I can talk one on one basically to the

17 machine and have it do what I would like it to do.

18 Q. Did you get the machine to do anything at this

19 point?

20 A. Yes, I created three backups of the machine.

21 Q. What do you mean by a backup?

22 A. Particularly I created two backups that we refer

23 to as an image backup. In other words, it is a complete

24 photograph of the entire contents of the hard drive from the

25 very beginning to the very end, regardless of the contents

2558

1 in between. The third backup that I performed is what we

2 call a logical backup, whereby all I did is just take the,

3 just the active files that you as a user and any common user

4 can see, and just copied those off to a separate tape.

5 THE COURT: Okay. Now you said you copied them

6 off to a tape.


8 THE COURT: You mean the same kind of type that

9 we stick in a tape player?

10 THE WITNESS: No.

11 THE COURT: Generally?

12 THE WITNESS: Generally the type tapes I used are

13 called DAT tapes. They're little tiny cartridges smaller

14 than a cassette, and they're hold a wealth of information.

15 They can hold many times this size of a laptop.

16 THE COURT: Many times. Okay. Somehow or

17 another how do you get to the C hookup your tape drive and

18 this thing? Is there some kind of a port?


20 THE COURT: A plug-in they call a port, because

21 that's where the hole is.

22 THE WITNESS: Yes, on the back of this computer

23 is a parallel port and the specific tape drive that I used

24 is a parallel port tape drive whereby I can connect with a

25 wire directly from the computer to my tape drive and the

2559

1 software is what handles the communications between the two.

2 THE COURT: And your image drive is a complete

3 duplication of all the little 1s and zeros that are in that

4 piece.

5 THE WITNESS: Yes, sir, completely from beginning

6 to end.


8 Q. You just referred to your tape drive. Is that

9 another piece of equipment?

10 A. Yes, it is. It was a piece of equipment that I

11 carried with me from the laboratory.

12 Q. And what was the function of that piece of

13 equipment?

14 A. Similar to a cassette tape drive it enabled me to

15 copy the data from the hard drive, and it would write it to

16 this particular little tape cartridge.

17 Q. How many of these little tape cartridges did you

18 end up with while you were in this process?

19 A. While in Manilla I used three tape cartridges,

20 one for each specific back up.

21 Q. About how long did the whole procedure take you

22 to do the three backup versions of the computer?

23 A. I would say approximately between two and three

24 hours. Each backup took about 45 minutes a piece.

25 Q. After you finished the backing-up process did you

2560

1 do anything else with respect to the computer?

2 A. Since I still had time to look at the computer,

3 myself and Special Agent Pellegrino did a cursory exam of

4 the computer whereby I load in some software through the

5 floppy diskette drive which is what we call a viewer which

6 allows me to see different kinds of files in different

7 formats, used the viewer, and just did a cursory exam of the

8 files on the computer.

9 Q. Now, by inserting this software would that affect

10 the contents of the hard drive of the laptop at all?

11 A. No, it wouldn't, because as I previously

12 specified when I used the bootable diskette I put a hard

13 drive write blocker that loaded first, and that was our

14 first and primary step that we do which prevents any

15 writings that may take place between me and the hard drive.

16 THE COURT: Oh, when you say "write blocker"

17 you're talking about W-R-I-T-E, not R-I-G-H-T?


19 THE COURT: Okay.

20 Q. And when you inserted the viewing or viewer

21 software --

22 A. Yes.

23 Q. -- were you able to look at any files on the

24 computer?

25 A. Yes, I can look at all of them.

2561

1 Q. Do you remember seeing any files in particular?

2 A. Yes, I do.

3 Q. Do you remember the names of any of the files

4 that you saw?

5 A. A few of the files were temporary files created

6 by Microsoft write, but a couple of files were text files.

7 One was called OBAID.TXT, and another one was ZYID.TXT I

8 believe.

9 Q. Do you remember how those are spelled, the names?

10 A. OBAID was OBAID period TXT, and ZYID I believe

11 was ZYID dot TXT.

12 THE COURT: Did you ever see those files before?

13 THE WITNESS: Prior to that day, no.

14 THE COURT: Okay. That's not like Windows?

15 THE WITNESS: Correct, those are files that

16 somebody created.

17 Q. You mentioned something called the temporary file

18 created by Microsoft Write; is that correct?

19 A. Correct.

20 Q. Can you tell us what that is?

21 A. In the process of running Microsoft Write for

22 basic handling purposes it will create temporary files where

23 it will temporarily save data until you as a user decide to

24 store it somewhere else permanently or erase this. These

25 temporary files are created in the context of Microsoft

2562

1 Write.

2 THE COURT: Hold on. Let's not leave that.

3 If I got the computer on and I understand the

4 word not type, it's input, is that right? Input a letter

5 into it, have it print out, and then decide I don't want to

6 keep that on my computer, what happens to that data? Is

7 that a temporary file like you're talking about?

8 THE WITNESS: A temporary file would exist. It

9 depends on what software you used the type.

10 THE COURT: I wouldn't know. Tell me.

11 THE WITNESS: Some pieces of software create

12 temporary files and some pieces don't.

13 THE COURT: Okay. This one you say did create a

14 temporary software?

15 THE WITNESS: Yes it does. As a habit it does.

16 THE COURT: As a habit?

17 THE WITNESS: Yes.

18 THE COURT: After I print out the stuff and I

19 don't particularly care for that thing to be floating around

20 my computer, what happens to it? Does it disappear?

21 THE WITNESS: Well, temporary files are typically

22 cleaned up afterwards by the software as a clean-up process

23 automatically. Usually, typically when temporary files are

24 stored on the hard drive it's usually because you

25 erroneously turned off the computer without quitting the

2563

1 software properly, you performed a function that locked up

2 the computer in this process, and therefore didn't have a

3 chance to clean up the temporary files before you quit it.

4 THE COURT: Okay. That's the place where all the

5 files when I turned off the computer, everything goes?

6 THE WITNESS: Yes.

7 THE COURT: I thought it was always to computer

8 heaven, is it?


10 THE COURT: It goes someplace.

11 THE WITNESS: It goes someplace.


13 Q. After you finished your work in Manilla with this

14 laptop what did you do with the laptop?

15 A. The laptop was returned to the PNP officials.

16 Actually, it never left their sight.

17 Q. Did there come a time when you saw the laptop

18 again?

19 A. Yes. In April of '95 it was delivered from

20 Manilla to the local offices here in New York, the FBI

21 offices, whereby I traveled and picked it up late

22 mid-morning. I forget the date, specific date.

23 Q. After you picked it up what did you do with it?

24 A. I personally carried it back at the laboratory in

25 Washington, D. C.

2564

1 Q. And what happened when you got back to the lab


3 A. I again went through the same process with the

4 computer, whereby I booted it with a bootable diskette. I

5 protected the hard drive using the write blocker and I

6 created another backup.

7 Q. Did you have a chance to compare the backup that

8 you created in Washington with the backup that you created

9 in Manilla?

10 A. Yes. I compared the contents of both backups.

11 First of all, I compared the active files which are the

12 logical files that a user can see actively on the computer,

13 and they corresponded exactly. The only differences that

14 occurred between the backups in Manilla and the backup made

15 in Washington, D.C. were the existence of some erased

16 information.

17 Q. After you made the backup tape in Washington did

18 you make additional copies of those tapes?

19 A. Yes, I did.

20 MR. SNELL: Your Honor, at this time could the

21 witness please be shown what has been marked Government

22 Exhibit 770 and 771 for identification.

23 Q. Ms. Horvath, do you recognize those?

24 A. Yes, I do.

25 Q. What are they?

2565

1 A. This first tape labeled snapback image of Q1

2 original laboratory was the backup that I created of the

3 laptop when I received it at the laboratory in April of '95.

4 This second tape is one of a couple of tapes that I created

5 which is also an image backup of the laptop that I created

6 upon your request.

7 Q. Is there any difference between 770 and 717, to

8 your knowledge, as to their contents?

9 A. No, sir.

10 MR. KULCSAR: Could we have the dates of 771,

11 your Honor?

12 THE COURT: Can you give us the date?

13 THE WITNESS: It would be in my notes as to the

14 date that I created them as to the exact date.


16 MR. SNELL: 3532B, your Honor.

17 A. Well, it's not contained on this page, but the

18 first backup which would have been performed on or about

19 April 19th, between April 12th and April 19th. The second

20 tape I have as being created on March 1st of '96 I believe.

21 THE COURT: Well, when you say the first and

22 second, we're talking about which and which?

23 THE WITNESS: The first is this one, which is

24 labeled original at laboratory.

25 THE COURT: That is marked Government Exhibit

2566

1 771?

2 THE WITNESS: Yes, sir. Government Exhibit 770

3 would have been on the March date of '96.


5 exhibit 7706 and 771.

6 (Government's Exhibits 770 and 771 received in

7 evidence)

8 MR. SNELL: I have no further questions. Could

9 we pass the exhibits to the jurors.

10 THE COURT: Those little tapes? Ladies and

11 gentlemen, take a look at them from here. You think you're

12 going to get anything off these? Mr. Yousef, do you expect

13 a long cross-examination for this young lady?

14 DEFENDANT YOUSEF: No, your Honor.



17 Q. Good afternoon, ma'am.

18 A. Hello.

19 Q. Was it your testimony that on January of 1995 you

20 made a backup copy of the hard disk contents of the laptop

21 computer?

22 A. Yes, I made three backup copies.

23 Q. Now, what else other than the backups you did

24 with the hard disk itself?

25 A. I did a cursory exam of the files contained

2567

1 within it.

2 Q. Was there a time in which you made any

3 examinations or tests as to the last date in which the files

4 were modified of that computer?


6 THE COURT: It's outside the scope, but, no, I'll

7 permit it. Just remember, this is January. You're looking

8 at it in January.

9 THE WITNESS: Yes, sir. As a procedure step that

10 we customarily do in the process of having to make a backup

11 of the computer's hard drive I also have to get

12 configuration information from the computer that allows me

13 to restore the backup once I get back to the laboratory. In

14 the process of looking at the configuration information I

15 did note the date of the computer.

16 Q. Is there any way in which you can tell --

17 THE COURT: I don't understand the answer. You

18 noticed the date of the computer?


20 THE COURT: Now, is that the date that's shown on

21 the computer the date the computer was last opened? I mean

22 it means nothing to me. It may be the date it was

23 manufactured or the date it was programmed.

24 THE WITNESS: No, it was the date and time that

25 the computer was currently set at, similar to setting your

2568

1 watch.

2 THE COURT: So when you turned it on it gave you

3 a date and a time?

4 THE WITNESS: I had to go to a specific area to

5 see the information, but, yes.

6 THE COURT: It was January the 23rd, which if

7 that's the date that you were there playing with your

8 write-not bootable disk.

9 THE WITNESS: That was the date that I was there,

10 but that was not the date that was in the computer.

11 THE COURT: It was not the accurate date, is that

12 what you're telling me?

13 THE WITNESS: Well, it may have been accurate for

14 another time zone, but it was not the date that was the

15 Manilla date.

16 THE COURT: Okay. But it was a day off, is that

17 what you are telling me?


19 THE COURT: A couple of hours.

20 THE WITNESS: I don't remember the hours, but the

21 day was set to January 22nd.

22 THE COURT: So you couldn't from that tell the

23 last time that computer had been opened and looked at?

24 THE WITNESS: Oh, no, sir.


2569

1 Q. Now, ma'am, when a person would modify the

2 contents of the file in the computer does the computer stamp

3 a date to that file to show when it was last modified?

4 A. That all depends on the software you're using to

5 modify the file with. It doesn't necessarily say the new

6 date and time, although some pieces of software will do that

7 automatically.

8 Q. Now, when you made a test to the computer

9 contents did you see any files which were modified after

10 January 6th?

11 A. Yes, I did.

12 Q. Of 1995?

13 A. Yes, I did.

14 Q. Would you tell us, please, what the number of the

15 files which were assigned to dates of modification after

16 January 6th of 1995 on or after January 6th?

17 A. There were a number of files. I don't

18 specifically recall the number, although it is in my notes

19 somewhere. I believe it was in the area of, and this is a

20 rough guess, of 50 or 60 files.

21 THE COURT: Here.

22 THE WITNESS: I don't believe it's in these

23 notes, sir.

24 THE COURT: Keep going.

25 Q. Looking at Government Exhibit what has been

2570

1 marked as Government Exhibit 3532A?

2 A. That's correct. In my notes, in that lab report

3 I did specify that the directory contains 61 files that had

4 a date on or after January 6th of '95.

5 Q. Does that mean the contents of 61 files were

6 modified on or after January 6th of 1995?

7 A. The contents were not necessarily modified but

8 the file was definitely opened and resaved to the hard

9 drive. It doesn't necessarily mean that the contents of the

10 file were rewritten.

11 Q. Does the computer assign a date to, a new date to

12 a file only when you modify its contents or even when you

13 just take a look at its contents?

14 A. Again, like I said previously, it depends on the

15 software you used to look at the contents, but there are

16 some pieces of software that will modify the date while

17 others will not.

18 Q. Well, do you know if these 61 files were modified

19 on the dates which were assigned to them?

20 A. I don't know that.

21 Q. Is there any way to tell that, ma'am?

22 A. No, sir.

23 Q. So would it be fair to say that the contents may

24 be changed?

25 A. They may have been.

2571

1 Q. Now, ma'am, did you do any test or examinations

2 to see if there were any viruses on the hard disk?

3 A. Yes, I did.

4 Q. Would you tell us what the viruses meant, please?

5 A. In Manilla I found no viruses. When I received

6 the laptop in Washington, D. C., I did find one virus which

7 was not destructive virus called Sampo.

8 Q. Would you tell us what a virus is, please?

9 A. The virus is a nondestructive virus. Like I was

10 stating earlier when you boot the computer it reads a

11 certain section of the hard drive or the floppy disc to

12 where it gets its basic information from in order to tell it

13 how to run how to get up and power up. Sampo attaches

14 itself to this what is called a boot record. Sampo does not

15 affect any contents of the hard dry. It does not affect

16 your input and output from the system. It's merely just a

17 nuisance that it's there.

18 Q. Would you tell, please, in a simpler way what the

19 virus is? Is this a program? Is this a file or some

20 something else?

21 A. It's, usually it is a program and it's hidden in

22 some sort of -- Sampo, particularly, which is a virus I

23 found, is attached to the boot record. So when you boot the

24 computer up, Sampo is automatically loaded into memory.

25 Q. So is a virus a programming language or a file?

2572

1 A. Yes, you have to write it in a programming

2 language. You can not see it as a file. It is source code

3 that is attached to the boot record in memory.

4 Q. Did you find any viruses when you did the first

5 test in Manilla?

6 A. No, I did not.

7 Q. Now, when you did the test, the second test, did

8 you find any viruses?

9 A. Yes, sir, I did.

10 Q. And when was that, ma'am?

11 A. I'm sorry. When?

12 Q. Yes, ma'am.

13 A. I would have to refer to my notes but it would be

14 the April 12th time frame when I initially brought the

15 computer back from New York offices.

16 Q. Was that in 1995?

17 A. Yes, sir.

18 THE COURT: Can we just back up a minute? You

19 gave the computer a test in Manilla and it was no virus.

20 That's what the test said, right?


22 THE COURT: Now, was it the same test that you

23 gave the second time around?

24 THE WITNESS: It may or may not have been.

25 That's one of the problems that we've been trying to

2573

1 determine. Viruses are created and exist all the time. New

2 ones are created everyday, every hour. There's a piece of

3 software that we use specifically to test for viruses called

4 Macafee's, that is the producer of the virus-detecting

5 software, and he produces new versions all the time and we

6 update our software all the time.

7 I don't necessarily keep track of when I update

8 my virus software except that I know when I get a new piece

9 of software in the laboratory I automatically update it.

10 So between the time that I ran my virus detection

11 software in Manilla and I ran it again in the laboratory in

12 Washington, D.C. I may have updated my virus detection

13 software, so that if I had an older version in Manilla it

14 may not have detected Sampo, whereas it did in the

15 laboratory.

16 THE COURT: Okay. The disk that you put in and

17 the test that you ran, did you or can you be sure -- I don't

18 know -- that there is no virus coming off that?

19 THE WITNESS: At the time before I go, before I

20 specifically go on search procedures I typically examine all

21 my floppy diskettes for viruses, but if I had the Sampo

22 virus prior to going to Manilla, and had used an older

23 version of detection software I may not have detected it.

24 THE COURT: Okay. And the virus is some kind of

25 a program that goes in, attaches itself someplace to the

2574

1 hard drive and can do anything and just ride along to eat

2 the whole thing?

3 THE WITNESS: That's a generic explanation of a

4 virus. This particular virus does absolutely nothing other

5 than be a hindrance in the boot process.

6 THE COURT: It rides along.

7 THE WITNESS: It just rides along.

8 THE COURT: But there are some that can eat the

9 whole hard disk?

10 THE WITNESS: There are some, yes.


12 Q. Now, ma'am, would you tell us if you did the test

13 on the original hard disk or on the backup?

14 A. The original hard disk.

15 Q. Now, how would a virus get into the computer,

16 ma'am? What are the ways in which a virus can get into the

17 computer?

18 A. Typically it's the user would use a floppy

19 diskette that is already infected, and by inserting the

20 diskette into the floppy drive and reading from the diskette

21 if you read the particular area where the virus resides you

22 would activate it.

23 Q. Is there any other way other than using the

24 floppy disk for a virus to get into the computer?

25 A. Viruses can be transmitted through

2575

1 communications. If you used your laptop for faxing and you

2 received faxes, your faxes may contain a virus or there's

3 just multitudes of ways.

4 Q. Ma'am, was it your testimony that the first time

5 in which you saw the computer was on January 23rd of 1995?

6 A. Correct.

7 Q. And when was the second time, ma'am?

8 A. When I received it in April, on April 12th I

9 think my notes state.

10 Q. On the second time you found the virus which you

11 didn't find in the first time?

12 A. Correct.

13 Q. Now, ma'am, would it be fair to say that when you

14 found the virus on the second time did that indicate to you

15 that a floppy disk could have been used with the computer?

16 A. Knowing Sampo now the way that I know the virus,

17 it's indicative of any number of ways it possibly could have

18 gotten there. I can't even state how it got there.

19 Q. Now, when you use a floppy disk do you need to

20 copy its contents into the hard disk so that the virus would

21 transfer into the hard disk, or you can just put it into the

22 computer and the virus will transfer by itself?

23 A. Well, you would at least have to read the

24 diskette whether you copied the contents from the diskette

25 to the hard drive or not. You would at least had to have

2576

1 opened the file or read from the diskette.

2 Q. Would it be a fair assumption from my part that

3 during the first time on January 23, 1995, when you didn't

4 find any virus during that period until April of 1995 when

5 you found a virus, that the person had used a floppy disk


7 A. Like I said, there is a number of ways that a

8 virus could get there either through a floppy diskette or

9 through communications. I don't want to guess as to how the

10 virus got there. I don't know.

11 Q. Was the virus able to get there without using a

12 floppy disk?

13 A. Specifically if communications were used, yes.

14 Q. And what do you mean by communication, ma'am?

15 A. The phone line was plugged into the computer, if

16 faxes were sent and received.

17 Q. So would it be fair to say that either a floppy

18 disk or a communication was used with this computer during

19 that period of time?



22 A. Something, something must have -- well, again,

23 I'll say the virus could have existed when I arrived in

24 Manilla and performed my initial examination. It would all

25 depend on what version of detection software I had at the

2577

1 time. If I had had an older version of detect software on

2 January 23rd in Manilla that didn't detect Sampo, Sampo

3 could have been residing in the computer already.

4 Q. Supposing there was no virus on January 23rd,

5 what are the possible ways for a virus to get into the

6 computer during the that time?


8 THE COURT: I think that's already been answered.

9 Okay.

10 Q. Now, ma'am, would you tell us what did you first

11 see on the screen when you switched the computer on?

12 A. Because I booted with my own bootable floppy

13 diskette the first thing I saw besides, the first thing you

14 see with most computers is an initialization screen for the

15 computer. It tells you what kind of floppy drives are

16 attached, what kind of hard drives are inside, the memory

17 that's available to the computer. And then the next thing I

18 see is the command prompt, a DOS command prompt.

19 Q. Was there a time in which you used the backup

20 tapes to see the contents of the hard disk?

21 A. Yes, sir.

22 Q. And when you used the backup tapes is it as if

23 you are using the genuine hard disk?

24 A. Yes.

25 Q. When you used the backup tape what did you first

2578

1 see on the screen before touching any keys?

2 A. When I restored the images from the backup tapes

3 to a brand new computer and treated the new computer as if

4 it was the evidence computer now, and turn the computer on,

5 the software program called Windows by Microsoft is what

6 comes up.

7 Q. Will you describe if you saw any drawing or any

8 text writings on the screen before you pressed any key?

9 A. The first thing that comes up is a graphic image

10 called the bitmap which is also called the wallpaper in

11 Windows and basically it's as if the name wallpaper it's a

12 background to anything takes place and the image was I

13 believe a tree with some grassy area and possibly some

14 writing below it.

15 Q. Now, you said you saw a tree with some grassy

16 area. Now, in order for you to change what came up on the

17 screen when you first switched on the computer, do you need

18 to change any of the computer contents in order to change

19 what first comes on the screen?

20 A. What you do is you need to change your flag

21 somewhere that says whether to load the wallpaper or not.

22 Q. So you basically changed some of the contents of

23 the computer?


25 THE COURT: No. I'll permit it. Go ahead.

2579

1 A. Well, in order for me to run the computer anyways

2 I had to change some configuration. For example, the

3 computer was initially loading some what are called drivers

4 which are basically configuration files that allow, for

5 example, he had a sound card driver, which if he had a sound

6 card installed which would allow him to play CD music, or

7 voice imprints back and forth, a driver is required in order

8 for the computer to recognize this sound card.

9 Well, his computer was loading some drivers, for

10 example, for the sound card which my computer that I

11 restored the image to did not have. So it would give me

12 error at time. So I would turn that off. And there were a

13 couple of times that I turned off, also.

14 Q. Now, you said you first saw a --

15 THE COURT: Whoa, hold on for a minute. That

16 computer there, do you know whether it has a "sound card"?

17 A. I don't know if it internally does as it is, but

18 he has the slots available that are called PCMCIA slots

19 which exist right here.

20 THE COURT: Wait a minute, kid.

21 THE WITNESS: I'll explain. As a matter of fact

22 I can show you a card that's in here right now if I can get

23 it out. They're little tiny cards and they look like credit

24 cards.

25 THE COURT: They go in those slots?

2580

1 THE WITNESS: They go in these slots and they act

2 like, and I can't get this one out right at this moment.

3 THE COURT: Don't worry about if he got it out.

4 THE WITNESS: There is one in here right now.

5 It's called APC. They are a miniature versions of any

6 hardware you can want. This particular card in here is an

7 fax modem card. It is a fax machine, and this is how small

8 it is, you plug your phone line into this little side right

9 here. So if he were to load drivers which he would require

10 drivers in the computer in order to talk to these cards and

11 understand what these cards do. Well, because I didn't have

12 these cards at the time my computer would think it was an

13 error, whereas his computer would naturally load it.

14 THE COURT: Okay. Now, is that where the sound

15 drive would be, also?

16 THE WITNESS: He could put a sound card in here.

17 I don't know where his sound card specifically resided,

18 whether it is in here or whether he has one installed

19 internally in the machine. My guess is that he does not

20 have one installed in the machine, because if there was

21 usually there's speaker outputs where you can attach

22 speakers to and microphones to. So my guess is he doesn't

23 have one installed, but I don't know. I didn't open up the

24 laptop physically to find out.


2581

1 Q. Ma'am, you testified that you saw a drawing of a

2 tree and some grass, am I correct?

3 A. Yes.

4 Q. Would you be able to change what comes first on

5 the screen, the drawing which comes on the screen when you

6 first switch it on before pressing any key, would you be

7 able to change that drawing without changing any of the

8 computer contents?

9 A. You mean like physically redraw the drawing?

10 Q. Permit another drawing to come up on the screen?

11 A. Yes. Well, what you could do is you could reset

12 this flag and the flag which initially calls this particular

13 file with a tree and grassy area which is called SANA.BMP

14 for bitmap. All you have to do is set it to a new file name

15 that would load a new graphic.

16 Q. So you need to change -- is your answer that you

17 need to change some of the contents of the computer in order

18 to change what comes on the screen?

19 A. No, sir. Well, you would have to change a

20 configuration flag if I wanted a different picture to load

21 up, but I have, there is no reason for myself anyways to

22 load a different picture. So I would have not reset that

23 flag.

24 Q. Not loading a different picture, just changing

25 the contents of the computer, can you do you it without

2582

1 changing any of the computer contents?

2 A. No, you would have to reset this flag.

3 Q. So --

4 THE COURT: How do you go about resetting a flag?

5 Is it merely typing some things into the computer?

6 THE WITNESS: It's merely clicking a box with an

7 X or removing an X.

8 THE COURT: With the mouse and give it a click?

9 THE WITNESS: Yes, with the mouse with those

10 little icon boxes you fill in an X if you want to print

11 something or not print something, same way.


13 Q. Now, ma'am, if this same computer was brought

14 back to you a few days later, and when you first switched it

15 on you found a different drawing from what you can see

16 today. Would it be fair to say that the contents of the

17 computer were changed during the few days when the computer

18 was taken away?


20 THE COURT: If it had been changed, would it have

21 been changed is the question.

22 THE WITNESS: Yes, if it loaded a graphic file

23 other than the one I expected, then, yes, somebody changed

24 the setting somewhere.

25 Q. Now, ma'am, during the examinations which you

2583

1 conducted of this computer on January, 1995, did you make

2 any specific tests as to the number of erased files?

3 A. In January?

4 Q. Yes, ma'am?

5 A. If I could refer to my files I believe I did that

6 in Honolulu. Yes. That was after I created the backups

7 from the original computer laptop in Manilla, I then took

8 the three backup tapes with me to Honolulu where I began

9 performing examinations, and that is where I examined the

10 erased file information.

11 Q. And would you tell us how many erased files you

12 found or you recovered?

13 A. According to my notes I stated that 32 erased

14 files were recovered.

15 Q. Now, are you able to state whether these files

16 were placed on the computer and erased after January 6th of

17 1995?

18 A. No, I couldn't say that.

19 THE COURT: The erasures you are not time

20 stamped?

21 THE WITNESS: No, sir, when you erase a file the

22 original file dates are saved with the erased file.

23 Q. Now, ma'am, I'd like to direct your attention to

24 what has been marked Government Exhibit 3532D for

25 identification.

2584

1 A. Okay.

2 Q. Is that your handwriting on these pages?

3 A. I typed this report. 3532B?

4 Q. D.

5 A. Oh, I'm sorry. Yes, sir, that's my handwriting.

6 Q. Would you tell us -- ma'am, is it also your

7 handwriting on the upper left-hand corner of the page?

8 A. Yes, sir.

9 Q. Is that the name of a person?

10 A. I believe it is.

11 Q. Would you tell us who that person is?

12 MR. SNELL: Objection, unless there is an offer.

13 THE COURT: I don't know where it's going but

14 I'll let it go. Do you know who it is?

15 THE WITNESS: I remember it's one of the persons

16 at the briefing that we had on January 23rd, a Monday. I

17 don't remember who particularly it is.

18 Q. Now, ma'am, where did you have this briefing?

19 A. At the offices of one of the PNP areas.

20 Q. Was that before you interacted to the computer?

21 A. Yes, that same day, but prior to.

22 THE COURT: I tell you what, ladies and

23 gentlemen, following the workings of Pliny the Younger,

24 Pliny the Younger was the guy that I had to translate when I

25 was in school and it was all in Latin and all of that. At

2585

1 the end of it it said, I'm sorry this letter is so long. If

2 I had more time it would be shorter. Okay?

3 Now, you can imagine what a school boy did with

4 that thing. I went nuts. But there you go, after working

5 long and hard on getting through the thing only to see

6 that's the way he ended up, I felt like saying wish he had

7 more time, made it shorter it could have been easier for me.

8 But I learned something from that. I learned that every now

9 and then, even in cross-examination, we take a little more

10 time, it makes it shorter. We're going to take a break,

11 perhaps get that little time taken, okay. Step out, folks.


13 THE COURT: All right, step down, ma'am.

14 (Witness not present)


16

17

18

19

20

21

22

23

24

25

2586

1 THE COURT: You got some time to talk about it

2 now. I gather much of this is going to be repeated again

3 through Swartzendruber, but you guys figure that out for

4 yourselves. I don't care. All right.

5 MR. SNELL: Judge, if we could just have a little

6 guidance on the setting up of the computer, we were going to

7 try to get things started at the break.

8 THE COURT: What are we talking about?

9 MR. SNELL: We're talking about installing a

10 computer on the witness stand with a monitor, a fair amount

11 of wiring so that it also wires the two televisions, so that

12 the jury will be able to see what's going on, plus the

13 television units for defense table, and one for the

14 government's table. I think the way we --

15 THE COURT: If we are going to end up with a

16 bunch of TV sets and a bunch of wiring going on, after Mary

17 Horvath is done, we'll introduce Mr. Swartzendruber, and

18 then we'll suspend for the day, and you can have all the fun

19 you want to. Just don't trip anybody with any of that

20 stuff.

21 MR. SNELL: I just hope to avoid electrocuting

22 myself.

23 THE COURT: I'm not so sure I'm rooting for that.

24 (Recess)


2587

1 THE COURT: Mr. Yousef, do you know how much

2 longer you're going to be?

3 DEFENDANT YOUSEF: About ten minutes, your Honor.

4 THE COURT: Anybody else want to talk to this

5 woman? You do.

6 MS. BARRETT: About five, ten minutes.



9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2588

1 MARY HORVATH, resumed.

2 (Jury present)



5 Q. Now, ma'am, on January 23 of 1995 when you were

6 in the Philippine National Police office who else was with

7 you there?

8 A. There were a number of people. I would say 15,

9 20, 25 people. The only people that I specifically know are

10 the Bureau personnel that were there with me.

11 Q. Do you recall their names, ma'am?

12 A. Yes, Special Agent Frank Pellegrino, Steve

13 Burmeister, Jackie Bell and there was another gentleman I

14 can't remember his name. Wally.

15 THE COURT: Wally?

16 THE WITNESS: I don't remember his name. Wally

17 Higgins.

18 Q. Do you know what jobs each of them had?



21 Q. Now, ma'am, do you recall the names of any of the

22 Filipino National Police personnel there?

23 A. Just the two that I previously mentioned, Alex,

24 and Burt and I don't know their last names.

25 Q. Now, on how many different occasions you made

2589

1 backup of the computer contents?

2 A. There were a number of occasions. Initially it

3 was the three backups in Manilla. There was an additional

4 two in Hawaii, and then there were numerous backups made at

5 the laboratory both on my own doing and as a request.

6 Q. The first backup was made on January 23, 1995 am

7 I correct, ma'am?

8 A. Yes, there were three backups made that day.

9 Q. When was the second backup made?

10 A. There were two additional backups made in

11 Honolulu. Sometime between January 24th and sometime during

12 that week in Honolulu.

13 THE COURT: You had a choice where to work in

14 Honolulu and Manilla, and you decided in Honolulu?

15 THE WITNESS: Yes.

16 THE COURT: Okay.

17 Q. So is it your testimony that you had the computer

18 with you in Honolulu on January 24th of 1995?

19 A. No, I did not have this laptop with me. I had

20 only the three backups that I initially prepared in Manilla.

21 Q. So the second backups you made them from the

22 first backups?

23 A. Correct.

24 Q. Now, when did you make the third backups, ma'am?

25 A. Okay. The three were in Manilla. Then there was

2590

1 two in Honolulu, so that was five. Then there were further

2 sets made at headquarters, both prior to receiving the

3 original laptop and after receiving the original laptop.

4 Q. And when was that, ma'am?

5 A. Specific dates I'd have to go back to my notes

6 which are not included here to tell you specific dates.

7 Q. Would you tell us approximately when was that?


9 THE COURT: It was both before and after you

10 received the laptop?

11 THE WITNESS: Yes, sir. It was over the course

12 of the year and a half.



15 A. There were some made in 1996 and some made in

16 1995.

17 Q. Now, the backups which you made directly from the

18 computer itself, not the backups which you made from other

19 backups, but the one that you made from the computer itself,

20 how many different occasions was that?

21 A. The initial three in January, in Manilla, and

22 then there was initial four or five at the laboratory.

23 Q. And do you recall when was that?

24 A. That would have been around sometime after

25 receiving in the laboratory on April 12th. I can't give you

2591

1 a specific, I can give you a specific date of March 1st

2 where I created -- actually, no, that wouldn't have been

3 from the original evidence though. That would have been a

4 copy of the backup. The other specific dates I can't tell

5 you from these notes here.


7 A. From the, off the actual evidence, no. It would

8 have been in 1995 when I received it in April.

9 Q. Now, did you compare at all -- withdrawn. Was

10 there any time at which you compared the contents of these

11 backups together?

12 A. Yes, sir.

13 Q. And did you find any differences in between them?

14 A. Yes. As I previously stated there is no

15 differences contained within the active files within the

16 computer and backups that I made between the two versions

17 between the Manilla version and the Washington version but

18 there were differences with erased information that was

19 obtainable.

20 Q. Now, did you label these backups, did you give

21 them names? Did you label them?

22 A. The majority of them were given Q numbers.

23 That's a procedural thing that we do at the laboratory. It

24 was numbers subsequently each of the tapes that were done.

25 The tapes that I did upon request for the AUSA'S office were

2592

1 not Q'd.

2 Q. I'm sorry, which ones were Q'd?

3 A. The original backups that I did which was Q1, A

4 through Q1-L were all labeled, A through L. The original

5 evidence itself, the laptop itself was labeled Q1.

6 Q. Now, ma'am, did you label any of these backups as

7 Q1.ERA?

8 A. I'm sorry. Can you repeat that?

9 Q. Did you label any of these backups as to Q1.ERA?

10 A. That would have been my erased file listing.

11 That was a file lists that was created of all the erased

12 files within the hard drive.

13 Q. Was the backup that you found the difference

14 between the old one and the new one?

15 A. There were two erased file listings. One that

16 was completed from the contents of the hard drive while it

17 was in Manilla, and then one that was completed from the

18 contents of the hard drive as I received it in the

19 laboratory in Washington, D.C. It was those two text files

20 that I compared the differences.

21 Q. And what differences did you find between them,

22 ma'am?

23 A. There were a number of differences. The two

24 erased listings aren't here for me to tell you specifically

25 what the differences were, but basically the differences

2593

1 were that there were some erased files that I could recover

2 in Manilla that I could not recover when I, it arrived in

3 Washington, D.C., and there were some erased files that I

4 could restore in Washington, D.C. that I could not retrieve

5 while I was in Manilla.

6 Q. Now, ma'am, do you know what is the reason for

7 that you are not able to retrieve the files which you were

8 able to retrieve them when you were in Manilla?

9 A. There were some modifications that had taken

10 place on the hard drive through some use of it that allowed

11 me to access particular areas of erased information that I

12 couldn't previously access in Manilla.

13 Q. So did this modification of the hard disk occur

14 after January 23rd of 1995, when you first saw the computer?

15 A. Yes.

16 Q. Now, ma'am, you testified about temporary files.

17 Do you recall that?

18 A. Yes.

19 Q. Would you tell us what a temporary file is?

20 A. A temporary file is a file that's created by a

21 particular piece of software, whereby the software we use it

22 as a temporary writing space such like a scratch pad that

23 you would use that you would throw away later.

24 Q. Would you tell us what the difference between a

25 temporary file and a normal text file?

2594

1 A. For example, if you were writing a long letter on

2 a particular piece of software, the temporary file, I'm

3 sorry, the software would save the data that you have

4 written already to a temporary file, kind of as a backup and

5 in case if kind of thing, for if the computer crashed the

6 software, some software could come back and tell you, you

7 have a previous copy of this letter that you were writing

8 before. Would you like to use it again? Do you want to

9 save it? Don't you want to save it? It's basically a

10 scratch pad for you.

11 Q. Now, when you first had access to the computer,

12 am I correct that before doing anything you had to use

13 something called hard drive blocker?


15 Q. And what was the reason for that, ma'am?

16 A. The hard drive write blocker like I previously

17 explained prevents me or any software utilities that I used

18 from writing to the hard drive.

19 Q. And is it the standard practice to do it before

20 gaining access to computer contents?

21 A. Yes, it is.


23 your Honor.

24 THE COURT: Ms. Barrett.


2595

1 BY MS. BARRETT:

2 Q. Ms. Horvath, the hard drive writing block, is

3 that a software?

4 A. Yes, it is.

5 Q. And that you use when loading into the A drive?

6 A. Yes.

7 Q. And you say that you used that in order to

8 prevent writing that may take place between you and the

9 computer?

10 A. Correct.

11 Q. So was that used in order to preserve the

12 integrity of the information on the hard drive?


14 Q. So if -- withdrawn. So there was a possibility

15 then that if you view or examine files by booting up the

16 hard disk and not using something like the hard drive write

17 block that there is a possibility that modifications could

18 take place on the hard drive?


20 Q. Now, you examined the laptop on January 23rd?

21 A. Yes.

22 Q. And was it your testimony that on January 23rd

23 the computer reflected the date to be January 22nd?


25 Q. If you had created a document or modified a

2596

1 document on that date, the computer would have shown it to

2 be January 22nd?

3 A. Correct.

4 Q. So the computer was one day behind?

5 A. I don't know if it was a full 24 hours, but

6 date-wise, yes.

7 Q. So let's assume that the computer was not

8 tampered with and was accurately running continuously from

9 January 6th of that year, and if upon viewing a file the

10 time and date that corresponds to a certain file, if it is

11 shown on the computer that the date on that file is January

12 7th, the accurate time that document would have been created

13 or modified would actually, would have been January 8th?


15 MS. BARRETT: Let me withdraw that.

16 THE COURT: Yes, start again.

17 Q. As of, let's assume that as of January 6th that

18 the computer clock was not tampered with, from January 6th

19 to January 23rd when you got that computer. And let's

20 assume that it was accurate and running continuously in

21 terms of time, one minute means one minute. If upon viewing

22 a file -- first of all, when you view a file is it a fact

23 that each file generally has a time and date that

24 corresponds to that file?

25 A. Correct.

2597

1 Q. And that time and date basically reflects the

2 time that a file was modified or created or something

3 actually was done on that file?

4 A. Based on the date and time that is saved within

5 the computer, yes.

6 Q. So based on the clock, the way -- based on how

7 the clock was reflected in the computer on January 23rd if

8 upon viewing a file in the computer on January 23rd, if you

9 had seen a file that showed that the date shown was January

10 7th, that document should have, am I correct in saying that

11 that document should have been reflected as January 8th

12 instead of January 7th?



15 A. If the computer were running properly, the clock

16 within it was running properly.

17 Q. And it was not tampered with?

18 A. The batteries within it were running properly to

19 keep the clock running accurately, then if I had saved the

20 file on what really would have been January 8th, the date

21 stamp for that file would have said January 7th.

22 Q. And if you had saved the file on January 7th, the

23 date stamp would have stated January 6th, also?

24 A. If the clock was running as it was when I saw it.

25 MS. BARRETT: No further questions, your Honor.

2598

1 CROSS-EXAMINATION


3 Q. Ms. Horvath, the computer you saw on January 23rd

4 is that computer which is in front of you now; is that

5 correct?

6 A. I believe it is. I have to check the serial

7 number against my notes.

8 Q. Assuming that's so.

9 A. Yes.

10 Q. Were you given any other components or parts to

11 the computer other than that?

12 A. Yes, sir, there was the electric cord that

13 attaches to it. There was I believe an extension electric

14 cord. I believe there was a phone attachment for the PCMCIA

15 card that is in there now. I believe there was also a mouse

16 or a track ball.

17 Q. Do you know when those items were seized or where

18 they were seized?

19 A. I believe at the same time as far as I know.

20 Q. Well, you believe that. You don't know that for

21 a fact?

22 A. Correct.

23 Q. Now, the backup files that you were referring to,

24 that you made on January 23rd, would it be a fair statement

25 that the purpose in preparing the backup file is to

2599

1 create -- my words -- a photograph of everything that you

2 are taking as of the moment you receive the computer?


4 Q. And the purpose is to maintain integrity of that

5 which you took at the moment you took it?

6 A. That purpose and also because I was not aware

7 that I would ever see the actual computer again, so it was

8 available for me to do my examination.

9 Q. Now, this creation of backup files that's even to

10 somebody with basic computer skills can create a backup

11 file, isn't that correct?

12 A. If you have the proper software.

13 Q. Now, with respect to -- correct me if I'm

14 wrong -- when you were showing the judge, the PCMCIA, the

15 fax card -- did I get that right?

16 A. Yes, sir.

17 Q. -- could you tell from examination of the card

18 when in fact that was installed in the computer?

19 A. Oh, no.

20 Q. Is there any way to ascertain that?

21 A. The only way I could think of ascertaining that

22 would be, for example, the fax card would have fax software

23 that would go along with it. You can look at the

24 installation of the software and see what the dates were set

25 to, but even that may not prove satisfactory.

2600

1 Q. Now, you also testified that you in your first

2 testings found 32 erased files?

3 A. Correct, I believe so.

4 Q. Now, correct me if I'm wrong on. This is an

5 erased file, a deleted file?

6 A. Yes.

7 Q. And do you recall whether the majority or most of

8 these erasures took place in what portion of the computer?

9 A. No, I don't.

10 Q. Or the program?

11 A. No, I don't recall off the top of my head, no.

12 Q. Now, with respect to your taking possession of

13 the backup files and having them through now, and the

14 computer itself, did you conduct any examination of the

15 files and/or the tapes and/or the computer to ascertain if

16 there was any tampering with the product?

17 A. The two tests already talked about, one was a

18 comparison of the status of the computer in Manilla, and the

19 status of the computer when I received it in Washington,

20 D.C., that test was performed whereabouts finding the erased

21 information difference. That was the primary test.

22 Q. You did no other tests?

23 A. Just the comparisons between the status of the

24 two areas. That's the only one I can think of off the top

25 of my head.

2601

1 Q. Do you know if anybody else in the FBI laboratory

2 conducted any other tests besides yourself?

3 A. To my knowledge, no.

4 Q. Did you prepare reports with respect to those

5 tests?

6 A. Yes, sir.

7 Q. And those are the March 20, if I recall, March,

8 1995 report and the April, 1996 report?

9 A. March of '95, and March of '96.

10 Q. Now, with respect to the erasures or the

11 deletions as you sit on the stand now, do I take it that you

12 have no specific recollection as to what area and what the

13 erasures actually dealt with within the software, if I'm

14 making sense with my question?

15 A. You make sense.

16 Q. I do?

17 A. My memory doesn't recollect, but I have it in my

18 stacks of printouts as to which files were erased, which

19 were unerased, where they were contained.

20 Q. But as of now you don't have a specific

21 recollection of it?

22 A. Correct.

23 MR. GREENFIELD: I have no further questions of

24 this witness.

25 THE COURT: Any redirect for this witness?

2602


2 THE COURT: I told you I'd get you to Washington

3 today. All right. Nice to see you. Bye now.

4 (Witness excused)

5 Tomorrow, ladies and gentlemen, I understand our

6 next witness is going to be somebody not only who is going

7 to describe computers, but have some kind of a show and

8 tell, and I understand that the wiring for this has to be

9 stretched throughout the courtroom so that everybody will be

10 able to see this thing. Hopefully whatever they're going to

11 show us will be big enough for all of us to see it.

12 So we are going to await tomorrow morning to do

13 that. I'm not going to start wiring it now. So you have an

14 early break today, okay? I will see you tomorrow morning,

15 kids.


17

18

19

20

21

22

23

24

25

2603


2 THE COURT: I gather you think that

3 Mr. Swartzendruber will be on for a while.

4 MR. SNELL: I do, your Honor.

5 THE COURT: How long is a while for direct.

6 MR. SNELL: For direct I would estimate a couple

7 of hours.

8 THE COURT: Okay. All right.

9 (Adjourned to 9:30 a.m., Tuesday, July 23, 1996)


11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2604

1 INDEX OF EXAMINATION

2 Witness D X RD RX

3 ALBERT I.D. FERRO................2492

4 MARY HORVATH..............2552 2566


6 Exhibit No. Received

7 770 and 771 ....................................2566

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2605




22 ALSO PRESENT: Lillie Grant, Paralegal, U.S. Attorney's Office 23 INTERPRETERS: AZIZ ISMAIL, HASSAM MOWAD

24

25

2606


2 THE COURT: Sit down, please. Six. Do you

3 include the comics with this, David, or do you take the

4 comics out?

5 MR. GREENFIELD: Sorry, your Honor?

6 THE COURT: Do you include the comics when you

7 give me copies of the Daily News?

8 MR. GREENFIELD: No.

9 THE COURT: You take them out.

10 MR. GREENFIELD: I take the crossword puzzle.

11 THE COURT: I should have known, okay.

12 MR. GREENFIELD: Your Honor, incidentally, the

13 copies of the Daily News for today with some of the columns

14 and stories with respect to the incident are reflected in

15 there, I do this at this time only as indicative of what's

16 in the other papers, without what's on TV. It's surely not

17 only the Daily News that's running the story. I'm sure the

18 Court recognizes that.

19 THE COURT: Yes. Okay. Now, has anyone tried

20 these things out?

21 MR. SNELL: We did, your Honor, last night and it

22 worked fine then.

23 THE COURT: Fine as of last night, okay.


25 THE COURT: There are five or six boards, white

2607

1 poster boards. I have no idea what they say or what they

2 are there for, but somebody want to clue me in as to what

3 they are and whether anybody else has seen them?

4 MR. SNELL: Your Honor, to answer the second

5 question first, they've all been shown to the defense with

6 the exception of two that arrived about a minute and a half

7 ago. Those are the ones that don't have Government Exhibit

8 stickers on them yet, but they are actually blowups of 3500

9 material which is I think 3533G, pages 2 and 3. Otherwise

10 everything was shown to defense counsel yesterday. And we

11 have --

12 THE COURT: 3527, 3532. I assume this is 3533.

13 G?

14 MR. SNELL: G, your Honor. I think the first

15 page is a cover page from the fax.

16 MR. GREENFIELD: Your Honor, the government has

17 provided us four 8 by 11 copies of this additional chart.

18 THE COURT: He is saying to me that these are the

19 same things as these pages. Is that true?

20 MR. SNELL: That's right, your Honor, exactly.

21 THE COURT: You have a 3533G.

22 MR. GREENFIELD: I just got it this morning.

23 THE COURT: 3533G has three pages. The first one

24 has directory of B:\, first word written on it is Norton.

25 The second page directory of suspect drive, directory

2608

1 D:\PS2, underscored SE. Is that the beast that we're

2 talking about?

3 MR. SNELL: It is, your Honor.

4 THE COURT: All right, that's three pages. This

5 isn't what I have.

6 MR. SNELL: I'm sorry, your Honor. Could I take

7 a look?

8 THE COURT: Okay. Wait a minute. All right. I

9 know where that page is. These are the three pages you're

10 telling me about. How about that other stack?

11 MR. SNELL: This stack, your Honor has been

12 labeled Government Exhibit 774A and B, the first two blowups

13 are files that are the first entry on top is C:\Windows\,

14 OBAID.TXT, and then the date 9/17/94. 1:00p.

15 THE COURT: Does this show up on the computer.

16 MR. SNELL: Yes, your Honor, it does, except the

17 header I just read into the record was typed on to the

18 printout of the rest of the file. The printout of the rest

19 of the file is on pages 4 and 4A in Government Exhibit 355

20 and that was the exhibit booklet we used last week or two

21 weeks ago.

22 THE COURT: Okay. Next one.

23 MR. SNELL: 775A is headed \Windows\ Zyid.TXT,

24 and this again, except for the header, it's an enlargement

25 of the printed material on pages 5 and 5A in Government

2609

1 Exhibit 355.

2 THE COURT: Okay.

3 MR. SNELL: Government Exhibit 778 for

4 identification is an enlargement of page 7 in the same

5 exhibit except the header information with the name of the

6 file has been added to the top.


8 MR. SNELL: We also have two photo enlargements

9 of files that are on the computer. First I've got 776 which

10 is an enlargement of a photograph taken of a screen on the

11 computer, a copy of a computer.

12 THE COURT: Does anyone have a copy of this,

13 also, defense counsel? Do I?

14 MR. SNELL: It's on the hard drive of the

15 computer, your Honor. I don't know whether, it's not in the

16 booklet. What we want to do, your Honor, today with the

17 witness is have him pull up this screen, and show the jury

18 the text which includes the name Arnaldo Forlani. Now, the

19 Court will recall that the ticket that was introduced into

20 evidence for Flight 434 on December 11, 1994, was issued in

21 the name of Amaldo, A-M-A-L-D-O Forlani.

22 THE COURT: Yes.

23 MR. SNELL: The other photo enlargement, your

24 Honor, is Government Exhibit 773. This is a photograph of

25 it's actually a printout of a file, actually a screen on the

2610

1 computer that indicates Windows registration material for

2 the Windows software on the laptop, Government Exhibit 301.

3 THE COURT: This product is licensed to: Is that

4 what you're talking about?

5 MR. SNELL: Yes, exactly, your Honor, Adam Qasim

6 AS LT. This report has been turned over as well as

7 Mr. Swartzendruber's report to all counsel.

8 THE COURT: That's all?

9 MR. SNELL: That's all of these enlargements. We

10 also have some naked poster boards that the witness wants to

11 use to illustrate some of what he's going to be talking

12 about to try to make the presentation about the computers

13 clear. I thought maybe we could set up the easel next to

14 the witness stand at that point and have him do that.

15 THE COURT: Provided he's got a booming voice.

16 He's going to have to fill the entire barn here, including

17 making sure that the interpreters can hear it.

18 MR. SNELL: Yes, your Honor, I've told him

19 actually about the need to use the microphone, and we'll

20 move it over at that point.


22 MR. KULCSAR: Your Honor, can we just see the

23 last two exhibits?

24 THE COURT: Sure.

25 (Pause)

2611

1 THE COURT: Are we all set?

2 MR. SNELL: I think so. The question I had when

3 we get to the demonstration, would you your Honor prefer if

4 I ask the questions from the table here or, I don't want to

5 block the jury's view of that monitor.

6 THE COURT: You can do it from the table.

7 MR. SNELL: Okay. Thank you.

8 THE COURT: All right. Go get the jury.

9 MR. UDELL: Forgive me, your Honor, Ms. Barrett

10 just stepped out a moment.

11 THE COURT: What?

12 MR. UDELL: She'll be right back. She just

13 stepped out a moment.

14 THE COURT: No problem.

15 MR. KULCSAR: Your Honor, I need to ask you about

16 the expert witness retained by the defense sitting in the

17 front row so he can see the monitor.

18 THE COURT: Sure, he can sit right there if he

19 wants to. Sure put him in. Who is he?

20 MR. KULCSAR: Dr. Leventhal.

21 THE COURT: Come on. Sit in the last seat.

22 There is a reason for it. They are going to do some poster

23 board markups.

24 MR. LEVENTHAL: Tell me where I'm supposed to be.

25 THE COURT: You see from there?

2612 1 MR. LEVENTHAL: Yes, your Honor, it's fine.

2 Thank you.

3 (Jury present)

4 DAVID SWARTZENDRUBER,

5 Called as a witness by the government, having

6 been duly sworn, testified as follows:


8 BY MR. SNELL:

9 Q. Mr. Swartzendruber, how are you employed?

10 A. I'm employed by Microsoft Corporation assigned to

11 law and corporate affairs.

12 Q. And what is your title there?

13 A. I'm an investigator.

14 Q. How long have you worked for Microsoft?

15 A. Approximately two years and four months.

16 Q. Before you joined Microsoft what did you do for a

17 living?

18 A. I was a police officer.

19 Q. And where did you work as a police officer?

20 A. My last 15 years I spent with the city of San

21 Diego, San Diego, California.

22 Q. Now, while you were a police officer did you

23 develop any area in which you specialized?

24 A. Yes, I did.

25 Q. What was that?

2613 1 A. Computer forensic work.

2 Q. Could you tell us just in a general way what

3 computer forensic work involves?

4 A. It's using computer science to obtain evidence

5 from disk drives and other devices used to hold data and

6 present that evidence to a court.

7 Q. A disk drive is basically the part of the

8 computer that stores information?

9 A. Yes, it is.

10 Q. When did you first start doing forensic computer

11 science?

12 A. I first started actually doing examination

13 process when I was assigned to the Drug Enforcement

14 Administration Financial Task Force. I was collaterally

15 assigned as a computer forensic person. I had my own lab,

16 and that would be approximately, I did that with the DEA

17 for approximately four years.

18 MR. KULCSAR: Your Honor, could we ask the

19 witness to speak a little closer to the microphone if you

20 don't mind?

21 THE COURT: Sure.

22 Q. You said that was approximately four years?

23 A. Yes.

24 Q. And was that with the, was that down in San

25 Diego?

2614 1 A. Yes.

2 Q. What kinds of cases other than, I imagine,

3 narcotics cases did you work on?

4 A. A variety of cases. I worked on cases involving,

5 I worked with the US Customs on Operation Long Arm which was

6 a pedophile case. I've worked on murder for hire cases

7 where computer evidence was obtained and we examined the

8 drives, MedCal fraud for Department of Justice in the State

9 of California. I've examined drives for Emporia County

10 Sheriff's Department in an internal case, involving several

11 police officers in an evidence room. There were a variety

12 of cases that I examined computer evidence.

13 Q. Now, since joining Microsoft have you done

14 anything further that you would consider to be in the field

15 of forensic computer science?

16 A. Yes.

17 Q. Could you describe what that's involved?

18 A. Yes. Yes. I used my skills, part of my job is

19 to assist law enforcement, and I've used my computer

20 examination skills for Los Angeles County Sheriffs,

21 Correction, Los Angeles County District Attorney's Office in

22 a case they had involving a rental copyright rental case.

23 It was a distribution, illegal distribution of copyrighted

24 material where we seized computer hard drives and examined

25 the drives and we obtained information that was necessary to

2615 1 bring the case to court.

2 Q. Have you testified previously in a Court as an

3 expert?

4 A. I have.

5 Q. And was that an expert in the area of computers?

6 A. It was. I testified in Canada in one of the

7 provisional courts as an expert in recognition of pirate

8 bulletin board systems, terminology, and generally on BBS

9 systems, bulletin board systems.

10 MR. KULCSAR: Your Honor, could the reporter read

11 back the last part of the answer, please?

12 (Record read)

13 Q. Is that BBS or PBS?

14 A. BBS, bulletin board systems.

15 Q. Now, directing your attention to February of this

16 past year, 1996, did there come a time when you received a

17 telephone call from someone within your office at Microsoft?

18 A. Yes.

19 Q. In connection with this case?

20 A. Yes.

21 Q. Who was that?

22 A. Ann Murphy.

23 Q. Who is Ann Murphy?

24 A. Ann Murphy is corporate counsel in law and

25 corporate affairs.

2616 1 Q. And after your phone conversation did you have a

2 conversation with an Assistant United States Attorney?

3 A. Yes, I did.

4 Q. And after that conversation did you receive

5 something?

6 A. I did.

7 Q. What did you receive?

8 A. Four millimeter DAT type.

9 Q. What is a 4 millimeter DAT tape?

10 A. It's a small tape cartridge that had a Safeback

11 image. Safeback is the utility used to create this mirror

12 image of a hard drive on to this DAT tape. It's similar to

13 a cassette tape that you put inside of a tape recorder,

14 except it's smaller, and I received that I believe via

15 Federal Express.

16 Q. Before you received the DAT tape were you asked

17 to do anything when you would receive the tape?

18 A. Yes.

19 Q. What were you asked to do?

20 A. I was asked to reconstruct that on to my control

21 hard drive and to examine the contents.

22 Q. Could you tell us what you mean by a control hard

23 drive?

24 A. I have several computers that are connected to

25 the network at Microsoft. Whenever we examine a drive there

2617 1 might be the presence of a virus or some other anomaly which

2 may create a problem on a network, so what we do is I have a

3 specific computer that I use to reconstruct any mirror

4 images on to avoid those problems.

5 Q. Were you able to reconstruct the content of the

6 computer from the DAT tape that you received?

7 A. Yes, I was.

8 Q. After you did that what did you do next?

9 A. I checked the drive for anomalies. I ran

10 programs that I use. I have a certain profile that I

11 conduct when I do an examination. I ran Norton utilities,

12 some other forensic software to examine the known data

13 areas, anything that might be erased on the drive, and any

14 other slack areas.

15 Q. Before you started the examination did you check

16 the contents of the tape for the presence of a virus?

17 A. Not the tape, my drive.

18 Q. And could you tell us a little bit more about

19 what you did in that regard?

20 A. Typically when I reconstruct a mirror image the

21 first thing I'll do is I'll run a virus check to insure that

22 haven't corrupted anything on the drive and no viruses

23 residing which could damage any disk that I may use or any

24 utilities I may use to the drive. I used FPROT which is a

25 licensed utility. It's a utility that will scan the hard

2618 1 drive to check for the presence of any viruses and I found

2 the Sampo virus on the master boot record of the second

3 drive which was the reconstructed drive.

4 Q. Would you tell us, please, first, what is a virus

5 in connection with a computer?

6 A. Well, a virus is something that can change the --

7 it's not a good thing -- and it's something that can change

8 the characteristics of your drive. In this case what

9 happens in a master boot record virus is it could

10 essentially destroy your master boot record and if it

11 destroys your master boot record that kind of has the map

12 for you of your drive, and where your DOS volume actually

13 starts where you start seeing this data. If it destroys it

14 you're not going to be able to reach the data on the drive.

15 So it could have disasterous effects on the operation of

16 your system.

17 Q. You used a couple of terms that I'd like you to

18 define for us if you could. What is a master boot record?

19 A. Well, on a hard drive the master boot record

20 resides at -- let me go back a step. The master boot record

21 very simply holds partition table and you can have several

22 operating systems on your hard drive. You can have a DOS

23 system. You can have a unit system, two different operating

24 systems. One of those has to be recognized as the one, the

25 first one to be activated. In that partition table it will

2619 1 point to the proper cylinder head and sector to start. So

2 your master boot record is a very important. It reads sides

3 on the physical drive always at 001 which is head 0 cylinder

4 zero sector 1.

5 Q. That head and cylinder sector terminology that

6 you just used, does that relate to actual physical areas on

7 the hard drive of the computer?

8 A. Yes.

9 Q. Does a virus that affects the master boot record

10 affect the actual data inside the hard drive of the

11 computer?

12 A. Very generally when you're talking about viruses

13 it depends upon the virus. I imagine there are viruses that

14 can affect the master boot record and also affect the data.

15 The Sampo virus I believe the best of my knowledge is one

16 that affects the master boot record and can be taken care of

17 very easily.

18 Q. What did you do when you encountered the presence

19 of the Sampo virus?

20 A. I activated FPROT. I found the virus and then

21 what I did is I asked or I made FPROT rewrite the master

22 boot record, and it did, and then it removed any trace of

23 the virus so the virus is essentially removed.

24 Q. Did you do any research on the Sampo virus?

25 A. I did.

2620 1 Q. And what did you find out about the Sampo virus?

2 A. That it originated in the Philippines, and it

3 only affects the master boot record I believe, it bites up

4 the memory. It affects the diskettes that you place inside

5 of the computer which can later affect other drives. Very

6 basically it was a very simple virus and very easy to get

7 rid of it.

8 Q. Does the Sampo virus affect the text content of

9 any text files?

10 A. To my knowledge and my understanding it affects

11 the master boot record.

12 Q. And is that a separate part of the hard drive

13 from the part of the hard drive where text files and

14 graphics files might reside?

15 A. Yes.

16 Q. During the course of your examination of the

17 computer were you given any information about the computer

18 to take into account as you were working?

19 A. Yes.

20 Q. Could you summarize for us what kinds of

21 information you were given?

22 A. I know very little, if anything, about the mirror

23 image that I received. I have to know something in order to

24 retrieve material that might be relevant in any given case,

25 so I asked for a key word list, and the key word list was

2621 1 given to me by the U. S. Attorney's Office.

2 Q. And can you describe generally what is a key word

3 list?

4 A. It's a list of words that I can do a scan and

5 test text files, erase files and in slack area files or

6 slack areas to check to see if those names may reside

7 anywhere on the disk.

8 Q. A couple of times you've mentioned the term

9 "slack area". Could you tell us what that is?

10 A. You want me to draw, you want me to explain it?

11 Q. Yes. If it would help you maybe we could set up

12 an easel with a poster board and you can draw it out.

13 MR. SNELL: Can everyone see?

14 Q. Mr. Swartzendruber, before you start, let me ask

15 if you could to try to keep your voice up and speak slowly

16 because you're a little bit far from the microphone now, and

17 we have to make sure that everybody in the courtroom,

18 including the men in the glass booth over there can hear

19 what you're saying.

20 A. Okay. What happens is in this particular

21 computer there is eight sectors per cluster. This is the

22 way that DOS allocates the housekeeping. What I'll do just

23 for clarification is I'm going to put four, these should be

24 equal. I'm not a very good artist here. Each one of these

25 represents 512K. Now, on this if we were to, this would be

2622 1 one allocation unit. This would represent one cluster.

2 Actually, let's say that there are four sectors per cluster,

3 four bytes, I'm sorry. What happens is that DOS would write

4 into this cluster, and if we put words like "now, is, the,

5 time." We actually can fit a lot more into that. If DOS

6 went to all four of those sectors in that one given cluster

7 and you erased this file what would happen is is that let's

8 say it came to right here, the next file, so this one is

9 completely erased.

10 When DOS erases a file it doesn't actually take

11 out "now is the time." What it does is it puts a little

12 sigma character up on the file name, and that little sigma

13 character will indicate that that is now erased. Then what

14 happens is that in anything past I believe it's DOS 3.3 it

15 will take the next available cluster. If you shut the

16 machine off and you came back to this cluster of the four

17 sectors, it would see that it's been erased and it will

18 write over it.

19 Well, let's say that you wrote oh, to two of

20 these sectors, you wrote to this sector, to this sector and

21 you had enough data just to go to the midpoint of the third

22 sector. What happens is is that the new file will overwrite

23 this, and it will have other data in it, and then here,

24 memory will buffer out. Whatever is in memory will kind of

25 dump out in this last sector, but this one will remain the

2623 1 same. So what you have is you have the old file, "now is

2 the time," you erased it. DOS saw the little character up

3 here, and let's call the file Time. DOS put this off, put a

4 little sigma character on there, saw the sigma character

5 realized this is unallocated. Now you can come back and

6 write to it. Then what happens is it wrote the new file in

7 the green here, stops here, memory will dump out to here and

8 this last sector that you have this last 512 bytes right

9 here will have the old file in it.

10 So when you do data recovery or you want to do an

11 examination, go back, and you can look at this and you can

12 say, wait a minute, this is not part of this file. This is

13 the remnants of the old file. And a lot of times we use, if

14 we find information, passwords, we find all kinds of things.

15 We find old files names. We find data from old files.

16 Now the thing that happens, too is that the

17 smallest unit that you can write to is one of these sectors.

18 This is our cluster but in this machine that I examined it

19 had eight of these. So you actually had eight of these,

20 five full, so if you start talking about eight of them and

21 you had a small file and let's say the file stopped here,

22 look how much data that you're going to have in the, of the

23 old file. Whatever was left it would draw it all the way to

24 the end.

25 No matter what happens, when DOS writes the file

2624 1 allocation table will, which is another, the file allocation

2 table allots these clusters, and when it allots these

3 clusters it allots them in eight, so no matter what you

4 write, if you wrote 512, all the remaining sectors here are

5 going to be available.

6 If you wrote to here, to four, these are still

7 going to be available. Let's say you've never written to

8 your drive at all before. You've never, never touched it.

9 You wrote your first file. It writes these first four,

10 these will be empty. Now, you've erased this, and you

11 rewrite again all the way to the end, and you fill up all

12 eight of those 512 bytes, so what is that 4096, which is a

13 lot. That should come to 40996. That's a lot of data.

14 Now you've erased it. Again you went to here

15 with your new file. It stops right here, buffers out to

16 memory here and you have one, two, three, four, five

17 available sectors to read, which is a lot of data so you can

18 see most of the big file.

19 Q. Mr. Swartzendruber, let me just interrupt you a

20 second. The five sectors that you've just pointed to is

21 that what you called slack area?

22 A. This is all slack area, everything after the end

23 of the file. Now, there's three things that will create the

24 end of this file. If you've ever seen a directory, in the

25 directory there is a size of a file, and what happens is

2625 1 that it will read the size of the file. When you look at

2 this file it will go to the end. So if it's, let's say,

3 it's a thousand bytes it's going to stop it right in here.

4 Another thing that would stop it is, in these clusters. If

5 you reach a end of file marker and this file allocation

6 table which distributes these clusters.

7 Another thing is the way it used to be is if you

8 had a text file there was the little one A marker that would

9 cause the end of file, but generally that doesn't happen.

10 Usually the thing that happens is that when you end on the

11 directory entry when you see the size of that file and it

12 reaches the end, that stops it, and then anything past that

13 is going to be slack area generally.

14 Q. All right. You want to take your seat again.

15 MR. KULCSAR: Could we have that marked or

16 designated some way, your Honor?

17 THE COURT: Yes.

18 MR. SNELL: 779.


20 (Government's Exhibit 779 marked for

21 identification)

22 MR. GREENFIELD: Is that an aid, your Honor, or

23 is it an exhibit?

24 THE COURT: Oh, it's an aid of course. It means

25 nothing by itself.

2626 1 Q. Now, sir, I think you're going to have to move

2 the microphone back in front of you so that it works.

3 While you were working with the DAT tape that you

4 mentioned earlier did you encounter any problem?

5 A. Yes, I did.

6 Q. Could you describe what happened?

7 A. The tape broke.

8 Q. And what were you doing when the tape broke?

9 A. I was reconstructing the tape on my drive.

10 Q. How many times was it necessary for you to

11 reconstruct the tape on to your drive?

12 A. I probably have done that a total of 30 to 40

13 times.

14 Q. And why is it necessary for you to do it that

15 many times when you're conducting an investigation?

16 A. Because at a given point what I'll do is I'll

17 start accessing the driver and I'll start creating things on

18 the drive that weren't there before, and what I need to do

19 is I need to bring the drive back to its original state so I

20 can examine it.

21 Q. What did you do after the tape broke?

22 A. I repaired it.

23 Q. Did there come a time when you received another

24 tape?

25 A. Yes.

2627 1 Q. And did you then have an opportunity to

2 reconstruct the second tape on to your computer?

3 A. I did.

4 Q. And did you also compare the two tapes that you

5 had been using?

6 A. I did.

7 Q. The contents that is?

8 A. Yes.


10 be shown Government Exhibit 770 and 771 which are in

11 evidence.

12 Do you recognize those, sir?

13 A. Yes. 771 is the second tape I received. And 770

14 is the first tape, the damaged one.

15 Q. Mr. Swartzendruber, as a result of your work with

16 the computer had you become familiar with the contents of

17 the drive? By "computer" I mean the drive that you

18 reconstructed.

19 A. Yes.

20 Q. And are you familiar with the types of files that

21 are contained on that drive?

22 A. Yes.

23 Q. Could you summarize for us what types of files

24 are on there?

25 A. I saw files related to DOS, Windows. I see text

2628 1 files, graphic files.

2 Q. Did you see any temporary files?

3 A. I saw temporary files.

4 Q. Could you tell us what a temporary file is?

5 A. A temporary file, the ones that I saw

6 particularly were temporary Write files. A temporary file

7 in Write is used and loaded up when you activate Write to

8 save any data that you may currently be working on so you

9 can --

10 Q. I'm sorry to interrupt, could you tell us what

11 Write is? Is that W-R-I-T-E?

12 A. Yes. That's a Windows desktop utility. It's an

13 application, desk top application. It's a mini-word

14 processor.

15 Q. Basically like a typewriter?

16 A. It would be like using any word processor like

17 using a typewriter.

18 Q. I'm sorry. Were you in the middle of an answer?

19 A. Yes. The file, what happens is that when you

20 activate Write, Write will immediately create a temporary

21 file. Any saves that you have in Write will also save and

22 do a temporary file in case you need to edit or undo

23 anything that you've done.

24 Q. And typically in the version of Windows that is

25 on this computer what happens to the temporary file?

2629 1 A. What's supposed to happen to temporary files is

2 that temporary files once you get out of your application

3 they're supposed to delete, they're supposed to disappear.

4 Q. And did that happen in this case?

5 A. Apparently not. There were several temporary

6 files left.

7 MR. KULCSAR: Could we have the last word was

8 dropped, your Honor?

9 THE COURT: "Left."

10 Q. And were those files that you were able to

11 examine?

12 A. Yes, some of them I was able to look at.

13 Q. Now, were all of the temporary files that you saw

14 in the computer text files?

15 A. No.

16 Q. What other kind of temporary files did you see on

17 the computer?

18 A. Some of them were application specific. WINFAX

19 left some temporary files.

20 Q. I'm sorry, is WINFAX a piece of software?

21 A. Yes.

22 Q. Is that a program of some sort?

23 A. Yes.

24 Q. What does that do?

25 A. That's a communication, a fax communication

2630 1 program. You can send and receive faxes through your

2 computer.

3 Q. You say that there were a number of temporary

4 files associated with that?

5 A. Yes.

6 Q. Did you examine those temporary files?

7 A. I did.

8 Q. And were you able to read anything in any of

9 those?

10 A. I don't believe I could.

11 Q. Other than the text file, the temporary file, the

12 graphic files were there also fax files on the computer?

13 A. There were.

14 Q. And just so we're clear, is there a distinction

15 between a temporary file and the other types of files that

16 the computer user can access?

17 A. Yes, there is a distinction.

18 Q. And what do you call the regular type of file

19 that's not temporary?

20 A. In a Write file it will have an extension .WRI

21 generally.

22 Q. Is that considered an active file?

23 A. Yes, it can be.

24 Q. Were there any other applications on the computer

25 that contained files?

2631 1 A. Yes.

2 Q. What else do you remember being on there?

3 A. There were several. I remember games. There was

4 a chess game. There was a I believe PHOTOSTYLER. There was

5 a program called MAGIC. There were several files, active

6 files.

7 Q. Were there any sound files?

8 A. There were.

9 Q. And can you explain to us generally what sound

10 files are?

11 A. It's a file that when you use the proper

12 application that you can play these files and you can hear

13 audio over your computer speakers.

14 Q. Now, Mr. Swartzendruber, do you understand that

15 you're being asked this morning to do a demonstration of

16 certain aspects of the computer?

17 A. Yes.

18 Q. And have you previously been in the courtroom

19 here setting up some of the equipment that we see around us?

20 A. I did.

21 Q. Could you summarize for us what you've done in

22 the way of setting up this equipment?

23 A. I reconstructed from the 4 millimeter DAT tape

24 the 203 meg, megabyte mirror image of the drive that I was

25 initially given. I put that on to my drive, plugged it into

2632 1 this computer.

2 To make it work what I had to do is I had to

3 change a couple of settings to have it work on this

4 equipment, because it came from a Toshiba laptop is my

5 understanding. So I had to make it specific to work with

6 this monitor, which required me just to enter the setup and

7 to change the set up to VGA monitor instead of the Toshiba

8 monitor. I had to go into the system file, and just rem out

9 a statement which means I just nulled a statement out so it

10 wouldn't function, and that was the resume statement, and

11 what I did is I had to change the mouse so the mouse would

12 work with this computer.

13 I also removed the virus from the computer or

14 from the hard drive after I installed the mirror image

15 because every time I reinstall that mirror image that I was

16 given it will install the virus on your computer. So I took

17 that out, also.

18 Q. Did you also install a program that was provided

19 to you on a diskette?

20 A. I did.

21 Q. What was that program?

22 A. That program I took from the government drive.

23 It allows a device driver that allows the monitors in the

24 courtroom to view what's being seen on my monitor, and I

25 believe it's called VETUNE.

2633 1 MR. SNELL: Your Honor, could the witness please

2 be shown what is marked Government Exhibit 358 in evidence.

3 Mr. Swartzendruber, will you take a look at that

4 and tell us whether you recognize that diskette?

5 A. Yes, I do.

6 Q. What is it?

7 A. This disk contains what are believed to be

8 encrypted files and some of the algorithms to break those

9 encrypted files.

10 Q. Is an algorithm basically a computer code?

11 A. An algorithm is a formula that will generate a

12 result with given input.

13 Q. And did you install some of the contents of

14 Government Exhibit 358 on to the computer that's here?

15 A. Yes, I did.

16 Q. When is the last time you tested this stuff?

17 A. Last night.

18 Q. In order to test it what did you do?

19 A. I activated the program.

20 Q. Which program is that?

21 A. I tested the encryption program, but after I

22 installed everything I turned the system on, and then I

23 turned it off to make sure it would function properly.

24 Q. Now, in doing that, turning it on and off, did

25 you change the contents of the computer at all?

2634 1 A. It may have changed a SWAP file. In this

2 particular computer there is a SWAP file. What a SWAP file

3 is used for is to trade memory back and forth, and it's

4 dynamic, it has a tendency to increase, as you use your

5 computer and the memory increases and your needs for the

6 computer increase, it will reach out to that SWAP file and

7 trade back and forth.

8 Well, the SWAP file may grow and it may also get

9 smaller depending upon your need for memory space. When we

10 turn that computer on and off generally what you'll see is

11 it may change the SWAP file. It will almost assuredly,

12 assuredly change the system date and time. Another thing

13 that changes is the group system date and time.

14 A. When you turn the machine off all the little

15 icons when you first turn on Windows like the little Windows

16 inside that contain like games opener applications or

17 whatever those group names will also reflect the time that

18 you've turned off the machine, will give the you the system

19 date and time that you turned it off showing that you exited

20 Windows.

21 MR. SNELL: Your Honor, at this time with the

22 Court's permission I'd like to see if we can turn to the

23 demonstration.


25 THE WITNESS: Would you like me to turn it on?

2635 1 Q. Could you please turn it, on the computer that

2 is.

3 THE COURT: I can only see one of these machines

4 and that's the left one down there which is flopping over.

5 I can also see the computer module here which shows all

6 kinds of stuff. Now they're both showing Microsoft Windows.

7 The prior material did not come up on the other screen.

8 Do you know that?

9 THE WITNESS: Yes, your Honor. The reason that

10 it didn't --

11 THE COURT: I don't care. Fine. I just want

12 everyone to know it. All right.

13 Q. Mr. Swartzendruber, can you explain why the

14 monitors that we have out here didn't show what you were

15 seeing on the monitor that's on the Judge's bench?

16 A. Yes, there is a device driver that causes the

17 monitors to work. The device driver hasn't been loaded yet.

18 MR. GREENFIELD: The picture is no good on our

19 monitor. You can't see it. It's a virus in it.

20 (Pause)

21 MR. GREENFIELD: If I can stand against the wall

22 over there, your Honor?

23 THE COURT: Sure. All right, go ahead.

24 Q. Mr. Swartzendruber, the first thing I think that

25 everybody in the courtroom saw on the monitors was the logo

2636 1 that went by on the screen. Do you remember that?

2 A. Yes.

3 Q. What was that?

4 A. That was the Toshiba Windows logo. It's an OEM

5 product, original equipment manufacture product. They're

6 licensed to distribute Windows under their name.

7 Q. That's Toshiba's license?

8 A. Toshiba, yes.

9 Q. Now, the next thing that we're seeing, which is

10 stationary here is a screen. Could you describe what's on

11 there?

12 A. Yes. It's a little alert box that says portable

13 sound configuration hardware problem. It says portable

14 sound does not respond or is not currently attached to

15 portable port. Do you wish to use portable sound during

16 this Window session? I don't have that device so what I

17 would just click no.

18 Q. Also, do you see what appears to be behind that

19 box that you just read?

20 A. Yes. That's what's referred to as wallpaper.

21 Q. Wallpaper?

22 A. Yes. What you can do in Windows is you can

23 change your desktop to the way that it looks and that's a

24 bitmap graphic. You can go in to activate your desktop and

25 change that to anyone of the other bitmaps that may reside

2637 1 within the program in Windows.

2 Q. Okay. The next thing I'd like you to do is could

3 you tell us whether the computer contains any indication as

4 to any registration of software?

5 A. It does.

6 Q. Can you show us where that is and explain to us

7 how you're getting there as you do?

8 A. Yes, would you like me to move the screen down?

9 Q. Oh, yes, could you, please.

10 A. I'll activate. Now what I'm doing is there is a

11 driver, I created this directory, DRV, and what I need to do

12 to change the screen. There should bring yours down so you

13 can see the top.

14 Q. Can you explain to us why it's necessary to make

15 that adjustment for this display?

16 A. This equipment that I'm not familiar with, but

17 apparently what happens is that this particular program will

18 cause my display to lower so you can see it in the full

19 screen display on the monitors. This was installed from the

20 government drive.

21 Q. By "the government drive," do you mean the

22 computer that was originally in place before you made your

23 installation?


25 Q. Now, at this point could you retrieve for us a

2638 1 screen that shows the registration information for the

2 Windows software?

3 A. I'll activate the Program Manager, and in the

4 Help you go down to about Program Manager and it should give

5 you the indication who this license is. As you can see

6 right here this product is licensed to ADAM QASIM AS LT.

7 MR. SNELL: Your Honor, at this point may the

8 witness please be shown what has been marked Government

9 Exhibit 773 for identification.

10 Q. Mr. Swartzendruber, is that -- withdrawn.

11 Do you recognize that exhibit?

12 A. It looks like one that I printed out.

13 Q. And is it an enlargement of something that you

14 printed out and supplied to the government?

15 A. Yes, that could be the same thing.

16 Q. Does it fairly and accurately show what is

17 depicted on the screen in the window with respect to the

18 Windows software registration?

19 A. In the About Program Manager Window, yes.


21 773.

22 A. With the exception we're running on a different

23 machine so you're going to see different memory in the

24 system resource allocation. The product that we're showing

25 here is a memory is 26702, and the system resources are 85

2639 1 percent free, and on the one that was printed out on my

2 computer is it's larger on the memory and smaller on the

3 system resources.

4 Q. Is Government Exhibit 773 an enlargement of a

5 printout that you made in connection with your report in

6 this case?

7 A. Yes.



10 Q. Now, Mr. Swartzendruber, I'd like you to turn now

11 to the text file that you mentioned earlier and could you

12 show us how we get there within the computer program that

13 we're in now?

14 A. I'll close out of the Program Manager, go into

15 the accessory groups. These are the groups that I was

16 referring to, all the application, Games, World Atlas, go

17 into the accessories group. I double click, I activate

18 Write by double clicking which is the small word processing

19 program.

20 This is called a maximized or maximized window.

21 And then what I'll do is go to file, and I'll open and it

22 opens on the file name that's called the Wild Card, the

23 asterisk period, that's the three-letter extension, WRI.

24 Anything that's within that subdirectory, the Windows

25 subdirectory with the WRI extension will be shown under file

2640 1 names. And down here it says list types of files, asterisk

2 period in the C directory.

3 Q. Is this what the computer automatically goes to

4 when you access those files?

5 A. Yes. Let me, this is the C drive, C directory.

6 Yes, that's what it will do. It defaults to the Windows

7 directory.

8 Q. Now, are there any other files than the ones that

9 you've just scrolled down in the box on the left and shown

10 us, text files that is?

11 A. There are.

12 Q. Could you show us where they are?

13 A. What you can do is click the list files and you

14 can see text files. The ones that are on here are text

15 files. Again, they use the asterisk convention, dot TXT so

16 if I click that it's going to bring up all the text files

17 which doesn't necessarily mean that those are all the text

18 files. It just means that those are the ones with the

19 extension TXT.

20 Q. Could you just scroll down the listing of the

21 text files and show us the entire listing?

22 A. There's the top, and as I scroll down there's the

23 bottom.

24 Q. Now, do you see a file on there that is called

25 TRAQUAQ.TXT?

2641 1 A. I do, it's right here.

2 Q. Could you retrieve that for us and show it to us.

3 A. Yes, I'll click it. Okay. And it comes up and

4 says Bojinka.

5 MR. SNELL: Your Honor, at this time I'd like to

6 ask everyone to turn to Government Exhibit 355 which I

7 believe has been passed out to the jury and turn to page 7.

8 And if I might approach the witness with another exhibit it

9 has been marked for identification Government Exhibit 778.

10 THE COURT: That's the same printout.

11 MR. SNELL: I think with one minor exception,

12 your Honor.

13 Q. Mr. Swartzendruber, do you recognize Government

14 Exhibit 778 for identification?

15 A. I do.


17 A. The file that we're looking at C:TRAQAQ.TXT.

18 Q. Is there anything additional on the poster that's

19 being held before you that does not appear on the computer

20 screen?

21 A. It appears to be the same one.

22 Q. Let me direct your attention to the top of the

23 page, the very top?

24 A. Oh, with the exception of the caption.

25 Q. And do you know how that got there?

2642 1 A. Yes. I believe I printed that out.

2 MR. KULCSAR: Your Honor, could we read back the

3 last answer?

4 THE COURT: I believe I printed that out.

5 Q. When did you do that?

6 THE COURT: The question is, when did you do

7 that?

8 THE WITNESS: I think, your Honor, I believe it

9 was two nights ago.

10 Q. What was the information that you put up there?

11 A. I put the directory that it was located, first of

12 all the drive, the subdirectory, the file name, and the date

13 either creation or modification of the file, and the time of

14 either the creation or the modification of the file.

15 Q. Where did you get the date and time information

16 from?

17 A. From the subdirectory information.

18 Q. And is that stored within the computer?

19 A. It is.


21 778.


23 MR. KULCSAR: Your Honor, could we just have the

24 record reflect what the date is?

25 THE COURT: Sure. It's dated 9/19/94, 12:02 a.m.

2643 1 I just passed my eye test.


3 Q. Now, Mr. Swartzendruber, if we could return to

4 the computer, call up another file at the file manager --

5 A. Do you want it up in the Write file?

6 Q. The file I'd like to you retrieve is called

7 OBAID.TXT. Do you see that in there anywhere?

8 A. Okay, we'll open, I'll go to the text files, and

9 there's OBAID.

10 Q. Could you scroll down that and show us the entire

11 file.

12 MR. SNELL: Now, your Honor I'd like to ask the

13 witness to be shown Government Exhibit 774A and B.

14 Q. Mr. Swartzendruber, could you tell us whether you

15 recognize those two exhibits, 774A and B?

16 A. Yes.


18 A. They're representations of the printout that I

19 did at the same time as the other text file, and I also put

20 the label up at the top indicating the drive, subdirectory

21 file name, date and time of either creation or modification.


23 774A and B.



2644 1 evidence)

2 MR. SNELL: I'd like to ask if everyone could

3 turn to page 4 and 4A of Government Exhibit 355 of the

4 booklet.

5 Now, Mr. Swartzendruber, could you pull up

6 another text file ZYID.TXT.

7 Now, your Honor, I'd like to show the witness two

8 more exhibits, 775A and B.

9 Do you recognize those sir?

10 A. Yes. This appears to be another file I did the

11 same day, and with the same caption and conventions at the

12 top with the drive, subdirectory and the file name, date and

13 time of creation, modification of the file. It's the same.


15 775A and B.


17 evidence)

18 MR. SNELL: I'd like to ask if everyone would

19 please turn to pages 5 and 5A in Government Exhibit 355.

20 Could we put up on the easel now, Government

21 Exhibit 774A.

22 Mr. Swartzendruber, would you please just read to

23 us what the date is indicated on the top of the exhibit?

24 A. The date is 9/17/94.

25 Q. Is there a time?

2645 1 A. The time is 1:00 p.m.

2 Q. Now, if we could do the same with 775A. Put that

3 up on the easel.

4 A. The date is 9/16/94 and the time is 11:14 p.m.

5 Mr. Swartzendruber, did you in your study of this

6 computer notice any files that showed material similar in

7 appearance to the material in the two files that we've just

8 been discussing?


10 Honor.

11 THE COURT: All right. I'll let it go. Go

12 ahead.

13 A. Yes.

14 Q. Where did you see such files?

15 A. I saw some of the remnants of these files in

16 temporary file.

17 Q. Could you demonstrate that for us?

18 A. Yes. You have one in particular that you want me

19 to show on here?

20 Q. Sure. First of all, could you tell us how we get

21 to the temporary file from where we are right now?

22 A. What I have to do is change the extension in the

23 file name, and it will come up with all the temporary file

24 names.

25 Q. By the extension, do you mean the letters TMP

2646 1 following the period?


3 Q. Now, would you find for us, please, a file called

4 WRI3402.TMP.

5 A. It's right here.

6 Q. Can you pull that up?

7 A. Yes.

8 MR. SNELL: Your Honor, could everyone please

9 turn to pages 6A and 6B of Government Exhibit 355.

10 Q. Mr. Swartzendruber, would you please scroll

11 slowly down the file so that we can see the whole content.

12 Now, if you could go back to the top. There are

13 a number of sections on the screen that we see where there

14 are some lines going across or characters strung across the

15 screen. Do you see those?

16 A. I do.

17 Q. Do you understand what those are?

18 A. It could be a variety of things. It could be

19 default characters. It could be breaks, page breaks. This

20 down here looks to me that if you were to look at other

21 temporary files or create some that it's pretty indicative

22 of adding to a file and saving that file. This would be a

23 temporary file that would be saved, so you can undo and

24 edit. You might do another save. When it's saved might

25 append some information to it and that's what could have

2647 1 happened here. This is kind of indicative.

2 Q. Do you have any theory based on your study of

3 this computer and your knowledge of computers in general as

4 to how this temporary file was created?

5 A. At one time there should have been an actual file

6 created, and what that did is when they activated Write it

7 creates the temporary file. Then when you do your save and

8 save as, as your saves as you continue to append to your

9 document it will save the additional information as needed.

10 When you close your document whatever this may have been

11 called, let's call it test.10, if you would close that out

12 then in theory this should have disappeared.

13 Q. You say in theory?

14 A. Yes.

15 Q. Why didn't it?

16 A. A variety of reasons. Usually the most, the

17 response from Microsoft traditionally when this occurs is

18 that there had to be an abrupt shutdown from Windows which

19 meant that somebody clicked the off button is what could

20 have happened, and what it did is it caused that file to

21 save and the program was unable to erase itself.

22 Q. Now, does this file have a name?

23 A. The file does have a name.

24 Q. How was that name assigned?

25 A. Typically a temporary file will have the tilde.

2648 1 There will be a three-letter extension for whatever the

2 document may be, and you'll see a lot of

3 application-specific documents --

4 Q. I'm sorry to interrupt, sir. Could you make your

5 adjustment again and bring that down a little bit lower,

6 because I don't think it's completely visible, the blue line

7 on the top of the TV monitor where you're pointing. Yes.

8 A. Is that okay?

9 Q. That's perfect.

10 A. What happens is there a three-letter extension

11 and this, the next four alphanumeric characters are a

12 default set that's created by an algorithm, that bounce off

13 the day and the time to the hundredths of a second which is

14 memory resident of hundreds, and they'll assign this number

15 and then the .TMP so that tells you it's a temp file. So

16 this is a default that's given from actually from DOS.

17 Q. I'm sorry, in layman's terms does that mean that

18 the computer names the file?

19 A. The computer names the file.

20 Q. Is there a time and a date associated with this

21 file?

22 A. There is.

23 Q. Could you show us that?

24 A. What I'm going to do is I'll have it activate all

25 files. I'll go to Windows. I'll ask it to show all file

2649 1 details which will give the time and date. That was 3402?

2 Q. Yes.

3 A. It shows that the file size is 7,552 bytes

4 created or modified on 9/16/94, and the time was 1:55.34

5 p.m., which breaks it down into seconds, and what you don't

6 see and it stays memory resident, and it disappears at the

7 hundreths of a second.

8 Q. Is there a way for you to read what the hundredth

9 of a second reading would be?

10 A. No, I talked to the engineer that -- no.

11 THE COURT: Okay.

12 MR. SNELL: Just curious, your Honor.

13 Q. Mr. Swartzendruber, you also referred to some

14 graphics files. Could we move to those?

15 A. Yes. Do you want those brought up under the

16 program, the viewer?

17 Q. Whichever way you think is best for us to see it.

18 What are you doing here?

19 A. I'm activating a program that was in the computer

20 called PHOTOMAGIC.

21 Q. PHOTOMAGIC?

22 A. Yes. Now, I'm going to open the files and it

23 defaults out to all the TIFF file which show the extension,

24 these are all graphic files.

25 Q. Can you show us how many there are there.

2650 1 Now, I'd like you to pull up for us, if you

2 could, a file that's titled XAMPLE.TIF. You see that there?

3 A. Right there? And I'll activate it.

4 MR. SNELL: And, your Honor, if everyone could

5 please turn to page 11 of Government Exhibit 355.

6 Would you now please pull up a file called

7 XAMPLE2.TIF?

8 A. I'll open it.

9 Q. Now, sir, would you please pull up a file called

10 XAK.TIF.

11 MR. SNELL: And if everyone could turn to page 12

12 of the booklet.

13 Sir, would you now retrieve file XAKI.TIF.

14 A. XAKI?

15 Q. Yes.

16 A. Okay, I find it. I'll open it.

17 MR. SNELL: If everyone else would turn to page

18 13. Finally on the graphics would you please turn to a file

19 called FILES/WINCLIP.TIF?

20 A. I believe on that one I'm going to have to

21 activate another program to get into it. I can try here.

22 That was in the which directory?

23 Q. WINDOWS/FILES/WINCLIP?

24 A. Windows MAGIC files?

25 Q. Right. I?

2651 1 A. I found it here.

2 MR. SNELL: If everyone could turn to page 14.

3 Can we go back now to the other directory area

4 and retrieve a MAGIC file called Z9.TIF.

5 A. Okay, here's Z9. I'll open it up.

6 Q. Can you enlarge that at all so it's easier to

7 read? While you're doing that, if everyone can turn to page

8 15. Now, another MAGIC file, XP009831.

9 A. I'm sorry, which one?

10 Q. XP009831.

11 A. Does that have a TIF extension?

12 Q. No extension.

13 A. Okay. What I did is I just viewed the X key and

14 then I used the wild card anything with an XP on it so that

15 will enable me to find the file quickly, and I'll activate

16 it.

17 Q. You know the purpose of that little clock that we

18 see on the screen?

19 A. It's to keep you amused while the program takes

20 its time.

21 Q. Can you make that a little bit larger for us?

22 A. Yes.

23 Q. Could you now please retrieve a file X8.TIF.

24 And if everyone could turn to page 16.

25 A. X8.

2652 1 Q. X8.TIF.

2 A. You want me to enlarge this?

3 Q. Would you please.

4 Would you please do the same with the file called

5 X6.TIF.

6 If everyone could take a look at page 17.

7 Can you also retrieve X4.TIF.

8 Now, would you please retrieve XD2TIF. If

9 everyone will please turn to page 18.

10 A. I have to use another viewer for this.

11 Q. What do you mean by that?

12 A. Apparently it's not compatible with this image

13 file. There is another one that we have located in

14 PHOTOSTYLER should open it which was resident on the

15 original. I'll hit the maximize button. Do you want that

16 larger?

17 Q. Could you, please.

18 Now, if you would do the same, retrieve XID.TIF.

19 Could you now retrieve a file that's called

20 IDD.BMP.

21 If everyone will please turn to page 19 of the

22 booklet, and also look at the copies of Government Exhibit

23 321B that have been distributed.

24 A. I'm sorry. It's IDD dot?

25 Q. IDD.BMP. And the copy of the exhibit that I just

2653 1 referred to 321B is a loose insert in the booklet at the

2 very end.

3 A. This is in the Windows subdirectory so I'm out of

4 the MAGIC subdirectory, and there is IDD dot. I'll open it.

5 View the actual view.

6 Q. Are you familiar with the three-letter extension

7 BMP?

8 A. Yes, that means bitmap graphic.

9 MR. KULCSAR: Could we hear the last part of the

10 answer?

11 THE COURT: Bitmap graphic.

12 Q. Mr. Swartzendruber, will you now pull up 11.BMP.

13 A. The very top and I'll open it, maximize it, and

14 then I'll make it into the actual view.

15 MR. SNELL: Again, if everybody could take a look

16 at the copy of Government Exhibit 321B.

17 Your Honor, we're going to be a little while

18 longer. Would this be an appropriate time to take the

19 morning break?

20 THE COURT: Sure. All I know, guys, you got to

21 take out the easel.


23

24

25

2654 1 (Jury not present; witness not present)

2 THE COURT: Do you have a clue as to how much

3 longer we'll with be?

4 MR. SNELL: I think we probably have about maybe

5 30 minutes still of demonstration, and then probably about

6 an equal amount of time of testimony.


8 (Recess)


10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2655 1 (Jury present)

2 THE COURT: Tell me, Mr. Swartzendruber, some of

3 those pictures we saw on the computer screen, were they done

4 from pictures -- people. We saw pictures of people. Were

5 they done from pictures or were they done from real people,

6 if you know?

7 THE WITNESS: I don't know. It could have been

8 representation from -- or they could have been taken from a

9 camera, or what they could have done is scan it in. I don't

10 know.

11 THE COURT: When you say scan it in, you take a

12 picture and scan the picture and that's him?

13 THE WITNESS: Essentially.

14 THE COURT: You said a map bit or a map bit, what

15 you referred to, this thing. Is that what is on the screen

16 now?

17 THE WITNESS: Bit map. It is a type of graphic.

18 THE COURT: Is that the type of thing that you

19 can take and move into one of those cards that we saw

20 floating around before?

21 THE WITNESS: That would be possible.

22 THE COURT: But it doesn't get printed out

23 normally that way?

24 THE WITNESS: You could print this map out just

25 like this.

2656 1 THE COURT: You can print it out, OK. Go ahead.

2 BY MR. SNELL:

3 Q. Mr. Swartzendruber, is it possible actually to

4 create an ID card using a computer software like this one?


6 THE COURT: There was an objection. I will

7 permit the question. Go ahead. Can you do it?

8 A. Yes, I believe you can.

9 Q. I am sorry.

10 A. Yes, I believe you can.

11 MR. SNELL: Could we now turn to the text -- I am

12 sorry -- the Write area of the computer and retrieve another

13 file.

14 A. I will get into accessories and activate Write.

15 I will maximize the window again. I will open the

16 directory, the Windows directory, and now I have the Write

17 files.

18 Q. The file I would like to see if you can find is

19 called MAD.TIT.

20 A. That may be in another directory. I believe --

21 oh. It is in the Windows directory. What happens is, I was

22 still looking for the WRI extensions. So what I will do is,

23 I will type in the extension and pull it up, and I will

24 activate it.

25 MR. SNELL: Your Honor, if everyone can turn to

2657 1 page 8 of Government's Exhibit 355.

2 THE COURT: Yes.

3 Q. Mr. Swartzendruber, on the material that is being

4 shown on the screen now, do you remember seeing that in any

5 other files on the computer?

6 A. I do.

7 Q. In what other kind of file did you see that

8 material?

9 A. I believe this was in a text file, or it was in

10 an encrypted file. I am trying to recall.

11 Q. Were there encrypted files on the computer that

12 you saw?

13 A. There were files that were determined to be

14 encrypted, yes.

15 Q. Were you provided with the software previously

16 referred to, I believe, as Government's Exhibit 358 in

17 connection with those encrypted files?

18 A. I was.

19 Q. Do you have that diskette there in front of you?

20 A. It is in my hand.

21 Q. Have you previously used the diskette,

22 Government's Exhibit 358, to decrypt files that are on the

23 computer?

24 A. I used a program on the diskette called DEC.EXE

25 to decrypt encrypted files on the computer.

2658 1 Q. Let me ask you now, if you could, to run that

2 program that you just mentioned against a particular file,

3 but first I would like you to retrieve that file and show us

4 what it looks like in its present form, without using the

5 diskette. The name of the file is MADD.TXT.

6 Is that in the Windows --

7 A. It is in the DOS subdirectory. What I did was

8 change to the DOS subdirectory, and MADD.TXT resides there.

9 I click it, OK. It asked me whether I wanted to convert

10 this to a Write format, which means it does not recognize it

11 as a Write document. So I will put no conversion, take it

12 as a text document, and you have a bunch of strange

13 characters.

14 Q. Without using the diskette, are you able to make

15 this file intelligible?

16 A. No.

17 Q. Now what I would like you to do is, using

18 Government's Exhibit 358, could you make this into something

19 intelligible?

20 A. OK. I will shell out to DOS mode. I will go to

21 main and I will activate the DOS prompt, and you should be

22 able to see that on your screens. It is in -- we will go to

23 DOS. CD is a command to change to the DOS directory. Here

24 are the text files. The MADD.TXT is the third from the

25 bottom.

2659 1 What I will do is, I will run the program which I

2 have already installed in here, the DEC program.

3 Q. I am sorry. Before you leave that, could you

4 just read where there is a time and date stamp for the file?

5 A. The MADD shows 8,711 bites. It was created or

6 modified on 11/19/94, at 6:10 p.m.

7 What I am going to do is, I am going to create a

8 file -- your in file will be the encrypted file and you have

9 to create an out file to name this where it is supposed to

10 go to with this intelligible form. I will create MADD.BRK,

11 but to show one doesn't exist, it shows file not found

12 because it doesn't exist yet. I will create this one. What

13 I do is, I run a program called DEC, which is right there,

14 and I will run DEC, and then you have to run the in file,

15 which is MADD.TXT, and your out file will be MADD.BRK.

16 There, it has been decrypted.

17 Q. Before you show us, just so we are clear, is the

18 DEC file or program that you just ran already loaded into

19 the computer?

20 A. Yes, it was.

21 Q. When did that happen?

22 A. I did that last night.

23 Q. How did you do it?

24 A. I took Government's Exhibit 358 and just copied

25 it into both the Windows and the DOS directory, I believe.

2660 1 Q. Can you show us now what the result is of running

2 this?

3 A. Now I will run the -- I will show you that one

4 file was just created, that MADD.BRK. I will exit back into

5 Windows. I will go to the Write, W-R-I-T-E, and I will open

6 the DOS directory where this resides. I will put in a

7 3-letter extension for the BRK, which will pull it up, and

8 there is the MADD.BRK which we just created, and it will ask

9 me if I want to convert it to Write format. I will put no

10 conversion, I will maximize it, and that is the decrypted

11 file.

12 MR. SNELL: Your Honor, could everyone turn to

13 the loose exhibit that is in the booklet, marked

14 Government's Exhibit 357.

15 Q. If we could slowly scroll through the document so

16 everybody gets a chance to look at it, both on the screen

17 and where they are looking.

18 A. I will start back at the top.

19 (Pause)

20 Q. Mr. Swartzendruber, can you show us both the file

21 MAD.TIT which you had a few minutes ago and the first

22 portion of the decrypted file, MADD.BRK, simultaneously so

23 that we can compare them?

24 A. I will see if I can accomplish that.

25 I am going into the DOS directory. I will ask it

2661 1 for the text files. There is MADD.TXT. I will do no

2 conversion. These are the same two files. They are both at

3 the top.

4 Q. And now could you, after you have had a chance to

5 look at this, substitute for the encrypted version,

6 MADD.TXT, the file MAD.TIT that you had before?

7 A. For a MADD.TXT?

8 Q. Yes.

9 The file actually that I was asking you for was

10 MAD.TIT.

11 A. I am sorry. I am going to the DOS directory.

12 MADD --

13 Q. MAD, one D, dot TIT.

14 A. I am sorry. I've got it. That was in the

15 Windows directory. MAD.TIT. I will open that one.

16 Q. If you could just leave that there for a moment.

17 Now, if you would, I would like you to call up a

18 couple more temporary files.

19 THE COURT: Do you want these windows left open

20 here?

21 MR. SNELL: No, we can close these up. Thank

22 you, your Honor.

23 Q. And the files that I am looking for are, first of

24 all, tilde WRI3976.TMP.

25 A. OK, I have now found tilde WRI.TMP. I will not

2662 1 convert to Write format.

2 MR. SNELL: And if everyone could take a look at

3 page 10 in Government's Exhibit 355.

4 Q. Mr. Swartzendruber, do you see those boxes that

5 appear on the file on the screen?

6 A. I do.

7 Q. What are those?

8 A. I see that again the boxes at the top, the four

9 at the top and the ones at the bottom, I have seen this when

10 I have experimented with Write temporary files, and it

11 appears they are either appended or they have been worked

12 upon, and they are prepared for a save-back in case

13 something has been deleted or you want to undelete your

14 document.

15 Q. Now would you retrieve, please, leaving this

16 window open, retrieve WRI1A123, again, a temporary file.

17 A. That was WRI --

18 Q. -- 1A123.

19 A. This is the last time I will ask.

20 Q. WRI1A123.TMP.

21 A. I don't want to miss it. 123?

22 Q. Yes. It is WRI1A.

23 I am sorry, I am asking for the wrong file.

24 WRI1A13.

25 A. OK, I found it.

2663 1 Q. Can you put it right below the other one, which

2 is WRI3976.TMP.

3 Mr. Swartzendruber, based on your study of this

4 computer, do you have an opinion of how these two files that

5 we are looking at now were created?

6 A. There was an original document, and these

7 temporary files were saved as a result of the creation of

8 that original document, and what I would do to further

9 confirm that is to take a look at the times to see if the

10 times were in sync.

11 Q. Could you do that.

12 A. I will call the file manager up and we will view

13 by date, so we will do a date sort. Is that the one we have

14 right there? It was the 1A13?

15 Q. Yes, that is the one that I asked for.

16 A. And the other one?

17 Q. 3976.

18 A. That is right above it. So what we are showing

19 is, we are showing the larger file is 1,536 bytes on

20 11/7/94, the creation date, 09:48:18, the time, 9:48, and

21 then the one above it is the 3976.TMP, 256 bytes, 11/7/94,

22 also at 9:48 a.m. So they were both created at 9:48 a.m.

23 Q. Does the fact that they were both created at the

24 same time tell you anything?

25 A. That they most likely came from the same original

2664 1 document, that there is an original document where this

2 information resided at one time.

3 Q. Mr. Swartzendruber, I would like you to pull up

4 another text file for us. The extension is TXT.

5 A. That would be the Windows directory?

6 Q. Yes, the very first file, I believe,

7 ABUHAMAM.TXT.

8 A. Yes.

9 Q. If you could pull that up and if everyone could

10 take a look at page 2.

11 A. The maximizer.

12 MR. KULCSAR: Your Honor, could we just have the

13 number on the file, not the page number?

14 MR. SNELL: You mean the file name?

15 ABUHAMAM.TXT.

16 Q. Also, Mr. Swartzendruber, could you pull down the

17 screen the way you did before so that the top line is

18 visible?

19 A. Yes.

20 Q. And can you show us a screen where the date of

21 this particular file is shown.

22 A. I will get back into my file manager. That was

23 in the Windows directory, wasn't it?

24 Q. WINDOWS\ABUHAMAM.TXT.

25 A. Here it is. What we will do then is, we will

2665 1 sort by date and we will view all file details, and this is

2 the file that shows 2,006 bytes, created or modified on

3 11/19/94, at 10:29 p.m.

4 Q. That is 11/19/94?

5 A. 11/19/94. You can see it highlighted. I will

6 take the highlighting off. It is the one directly above the

7 blue line.

8 Q. Mr. Swartzendruber, you also mentioned that there

9 were some were fax information or files, I think, in the

10 computer?

11 A. There are.

12 Q. I would like to ask you to retrieve a couple of

13 those files.

14 A. Where do you want them taken from? There are two

15 different directories.

16 Q. Could you show us the fax area of the computer?

17 A. Yes. What I will do is, I will just show you in

18 the file manager, it is WINFAX. That shows that there is a

19 directory. I will double click on that and that will bring

20 it up, shows another subdirectory called Data. Here is a

21 fax file, here is FAXX001.FSX. To make those operate, you

22 have to run the program.

23 Q. Which program do you mean?

24 A. WINFAX.

25 Q. What does WINFAX do?

2666 1 A. WINFAX is a fax communication program. What you

2 do is, you have a modem connected to your computer and you

3 are able to send faxes to those faxes that are compatible

4 with your modem.

5 Q. Do you need a telephone to do that?

6 A. No.

7 Q. How does it work?

8 A. It works through the modem over public telephone

9 lines, to whatever -- if there is a fax that resides at a

10 distant location, you can call that fax up and send them a

11 fax in a fax format, and you can receive them also.

12 Q. Can you within the data subdirectory retrieve a

13 file called 1865001.FXD?

14 A. Within the data directory?

15 Q. Yes, 1865 --

16 A. -- 001.FXD.

17 Q. That's it.

18 A. What I have to do if it isn't associated, the

19 little blank icon here, the bird at the top shows the lines.

20 It means it is associated with an application that will make

21 it operate. I can't, unless I associate it from here, make

22 this operate. What I can do is go into the fax viewer in

23 WINFAX and call that up.

24 Q. Can you do that.

25 A. Yes.

2667 1 Now activating WINFAX. The first thing that

2 happens when you activate WINFAX, comes up with the

3 registration screen. I will just cancel it. The reason it

4 comes up with an error message is that there is no modem

5 connected to it. It is trying to do something and it can't.

6 It says the port is in use through another program. I will

7 click U, do an open, and it was an FXD extension, so I will

8 have to change that to FXD and hope I can remember which one

9 it was. 1865001?

10 Q. That's it.

11 A. I will activate that. It is processing it, and

12 this is the contents of the FXD. I can scroll up and down

13 if you like.

14 Q. And if everyone would please take a look at page

15 3 of Government's Exhibit 355.

16 Is it possible to make that a little bit smaller

17 so that we can see the whole thing in one screen?

18 A. Yes.

19 THE COURT: Since this machine seems to time

20 stamp everything else, would it show if that was sent on a

21 fax?

22 THE WITNESS: It is supposed to, your Honor, yes.

23 THE COURT: Could you give the time and date and

24 find that out?

25 THE WITNESS: There is a log in there, yes, your

2668 1 Honor.

2 Q. Can you do that?

3 A. I can bring up the log, yes. Here is the send

4 log, activate the send log. It shows the date, the time,

5 the fax number, the application it looks like it was created

6 in. Here looks like a complete fax. The application used

7 was a Write file. We can view that. Apparently this was

8 faxed, this document.

9 THE COURT: The date again, what was it?

10 THE WITNESS: This was September 5, 1994. It

11 says 5:12, 17:12, and that was the destination number.

12 Apparently there were a lot of error messages in here.

13 There were a lot of errors when they tried to send, whoever

14 used this application.

15 Q. Just so we are clear, is that file that you are

16 talking about now the one we were just seeing on the screen,

17 or is that a different file?

18 A. It is a different one.

19 Q. Is there a similar log entry for the one we were

20 just looking at, which was 1865001?

21 A. No. What I see here in the log are several error

22 messages and one complete fax, and the one complete fax is

23 different than the one that we just observed.

24 Q. And the one that is complete, what is the date

25 information on that?

2669 1 A. The date is September 5, 1994, it says 1712

2 hours, 5:12 p.m.

3 Q. And the telephone number, can you read that?

4 A. Looks like the destination is 02-812-7174.

5 Q. If you could pull up another fax file, this is in

6 the Windows directory. The title is FAX.FXS.

7 A. I believe I have looked at this one before and I

8 don't think this is a legitimate WINFAX document.

9 Q. What do you mean by a legitimate WINFAX document?

10 A. I don't believe it has been converted for WINFAX.

11 It is showing an invalid image file. It is still a Write

12 document. So what we have to do is go to Write, and I will

13 activate Accessories and Write. I will open up the

14 document. I will ask for an FXS extension and it pulls it

15 up, and then when I activate it, it shows that it is a Write

16 document, pulls it into Write, to minimize the --

17 Q. And can you give us the time and date information

18 for that document?

19 A. I will go to DOS.

20 Q. Remind us, please, what it means to go to DOS.

21 A. I am going to the DOS prompt. I am getting out

22 of the graphical user interface, which is what Windows is,

23 and there it is. So I run the directory for any FXS

24 extensions. What I am showing is FAX.FXS. It is 1024 bytes

25 created or modified on 9/1/94, and the time is 3:49 p.m.

2670 1 THE COURT: Can I make sure of something. The

2 document that we saw before was never sent, the fax, right?

3 THE WITNESS: I don't know if it was or not, your

4 Honor. The log indicates there was only one complete

5 document sent.

6 THE COURT: And it wasn't this one?

7 THE WITNESS: That is correct, your Honor.

8 THE COURT: This thing never even got out of

9 Write and into the fax mode, so it couldn't have been faxed,

10 right?

11 THE WITNESS: This one appears to me to have been

12 created in Write, and what they would have to do is in the

13 application you pull it in, you pull it into the fax to be

14 sent so it does formatting.

15 THE COURT: So get back to my question. This one

16 was never sent by fax either, right?

17 THE WITNESS: I can't say that, your Honor. I

18 don't know.

19 THE COURT: Through the machine. I am sure they

20 could have taken it, printed it out and run down to their

21 local fax machine and sent it, right?


23 THE COURT: But other than that, through this

24 machine, it would have to go through WINFAX.

25 THE WITNESS: Yes, your Honor, it would.

2671 1 THE COURT: And it doesn't show up in WINFAX as

2 being complete. There is only one complete one there.

3 THE WITNESS: That is correct.

4 THE COURT: Thank you. Go ahead.

5 Q. Another text file, Mr. Swartzendruber, if you

6 could pull up for us in the Windows directory, SID.TXT.

7 A. I will use Write again. I will open, minimize

8 this, I will open, I will get into the text files. SID.TXT.

9 Q. Yes.

10 A. I find SID.TXT, I will activate it, I will

11 maximize the window -- actually what I will do is, let me

12 move it so everybody will see it on their screens.

13 Q. And if everyone would please turn to page 1 of

14 Government's Exhibit 355.

15 Mr. Swartzendruber, you also testified that there

16 were some sound files on the computer, is that right?

17 A. Yes.

18 Q. I would like to see if you could retrieve a file

19 and play it for us, but first let me show you what has been

20 marked Government's Exhibit 772 for identification.

21 Do you recognize that, sir?

22 A. It has my initials on it, and I created a tape

23 recording of those sound files that I was able to locate on

24 the computer, so I assume this is it.

25 Q. Did you provide the tape recording that you just

2672 1 referred to to the government together with your report?

2 A. I did.


4 Exhibit 772.



7 Q. Without resorting to a tape recorder, is it

8 possible to listen to any of the contents of Government's

9 Exhibit 772 through the computer?

10 A. It is.

11 Q. I would like to ask you to demonstrate that for

12 us now with one of the files, if we could.

13 A. What I have to do is, I am running off of one

14 drive right now, which was the mirror image with those few

15 alterations I needed to make to make the system operate. I

16 need to take another drive and use that drive and the

17 drivers within it to activate the sound card. So it will

18 take me a minute just to take the drives out.


20

21

22

23

24

25

2673 1 THE COURT: Sure, go ahead.

2 DEFENDANT YOUSEF: I have application, your

3 Honor.

4 THE COURT: For him changing the drive?

5 DEFENDANT YOUSEF: Before it is played.

6 THE COURT: How long will this take?

7 THE WITNESS: It should take about four minutes.

8 THE COURT: OK, ladies and gentlemen, why don't

9 you step outside and as soon as it is done we will pick up.

10 There is no reason to sit here and watch the man do it.

11 (Jury excused)

12 THE COURT: OK, Mr. Yousef, you have an

13 application. I don't care, either one of you make it.

14 MR. KULCSAR: Your Honor, Mr. Snell discussed

15 this with me, I guess two days ago. I am not sure if your

16 Honor is aware of the contents of it, with all the other

17 exhibits and stuff your Honor has had thrust upon him. My

18 understanding is that if it is not this tape it is one of

19 the two tapes being played by the government because the

20 government contends that the voice that the jury will hear

21 is similar, the same or whatever, to Mr. Yousef's voice, and

22 that is the basis of their offer. My understanding of it is

23 that the contents of one of the tapes contains only

24 profanity on it, and I just wanted your Honor to be advised

25 of that in advance, that we would object to that portion of

2674 1 the tape being played. I understand there is another

2 tape --

3 MR. SNELL: I am sorry.

4 MR. KULCSAR: -- which does not contain -- as I

5 understand, the one tape contains fuck fuck fuck fuck fuck,

6 maybe FUC with an accent umlaut, but I think that is what it

7 is.

8 THE COURT: You see it in the movies and you hear

9 it on TV. It is not very shocking any more. It is

10 unfortunate but cussing in New York any more is no longer

11 the great delight it was in Victorian days.

12 However, I gather the government wants to play it

13 sanitized.

14 MR. SNELL: Your Honor, actually what we plan to

15 do is play a portion of one of the files that to my ears

16 didn't contain any profanity at all. So although the tape

17 that Mr. Kulcsar is referring to, or the file is on the tape

18 that is in evidence now, we are not planning on playing that

19 at this point.

20 THE COURT: Does that do it?

21 THE WITNESS: That's it, your Honor. I am ready.

22 MR. SNELL: Your Honor, if I could just suggest

23 that we put one of the speakers on the rail in front of the

24 witness, it will be close enough to the mike so that the

25 translators can hear.

2675 1 THE COURT: Sure. There is speaking going on, is

2 what I gather you are telling me.

3 MR. SNELL: That is right.

4 (Jury present)


6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2676 1 THE COURT: Before we do anything else,

2 Mr. Swartzendruber, number one, you changed your drive in

3 this. I assume that is like almost changing a computer.

4 But in the computer in question, is it necessary to change

5 the drive to listen to the sound?

6 THE WITNESS: Yes, your Honor.

7 THE COURT: It is?

8 THE WITNESS: I can't listen to it with the

9 architecture of this machine. I have to install drivers in

10 it that will write over the drivers, not on the drivers

11 available to me.

12 THE COURT: I am talking about the machine that

13 this came off.

14 THE WITNESS: They should have a device that

15 plugs into the machine to play this.

16 THE COURT: So you put a speaker someplace or

17 something like that?

18 THE WITNESS: That is correct, your Honor, and

19 that error message that we received at the beginning, with

20 the portable sound?

21 THE COURT: Yes, they said there is no speaker

22 available. Is that what you are telling me?

23 THE WITNESS: Yes, no device connected to make

24 that sound. If there was a device connected, my best guess

25 would be that it would play.

2677 1 THE COURT: You have gotten up something there so

2 the folks can see, an open file. Ladies and gentlemen, we

3 are going to play a little bit of this file for you. What

4 is most interesting is not the content of the file at all.

5 I have no idea what the content is and I don't think the

6 government really cares. The government has a contention as

7 to who is making the noises. I don't know who it is, but we

8 will find out. Maybe we will find out we don't know. That

9 is always a possibility.

10 Go ahead, or, as they say in Hollywood, roll

11 them.

12 THE WITNESS: The judge brought up a good point.

13 I put an extra drive in here. The C drive is my drive. It

14 is actually the government's drive. It has the capacity to

15 hear the sound. It is exactly the same drive that we were

16 hearing earlier. It is exactly the same drive. I will

17 activate CINDY2.LAV.

18 Q. Is that the sound file?

19 A. Correct. Do you want me to start that at 60

20 seconds?

21 Q. Yes, 60 seconds into the tape, if you could.

22 A. You will notice on the right side that I will

23 bring it to 60 seconds. Then I will activate it.


25

2678 1 (Tape played)

2 THE WITNESS: That is the end.

3 THE COURT: That is a perfect time. It is 12:30,

4 ladies and gentlemen. Gastric juices begin.

5 (Jury excused)

6 THE COURT: How much more?

7 MR. SNELL: I think probably about 10 minutes

8 more of demonstration and then altogether probably another

9 30 minutes with this witness.

10 THE COURT: All right, 2:00.

11 MR. KULCSAR: Your Honor, it doesn't have to be

12 resolved before lunch, but at some point I want to know if

13 the government is going to have a problem after the witness

14 is finished and our expert Dr. Levanthal having some access

15 to the keyboard or whatever to do things on the computer,

16 when Mr. Swartzendruber is finished.

17 MR. SNELL: I don't have a problem with that,

18 your Honor.



21

22

23

24

25

2679 1 AFTERNOON SESSION

2 2:10 p.m.

3 DAVID SWARZENDRUBER, resumed.


5 MR. GREENFIELD: Judge, I overheard outside that

6 there is a press or radio report saying that your Honor will

7 not poll the jury, that you will admonish them. I just

8 wanted you to be aware of the latest news flash.

9 THE COURT: God have mercy on me. I guess they

10 are upset with me because I suggested that they are running

11 out of news when they interview each other.

12 MR. KULCSAR: That might have been it, your

13 Honor.

14 (Jury present)


16 MR. SNELL: Thank you, your Honor.


18

19

20

21

22

23

24

25

2680 1 DIRECT EXAMINATION continued

2 BY MR. SNELL:

3 Q. Mr. Swartzendruber, after the lunch session ended

4 a few minutes ago, did you make some changes in the computer

5 that you can explain to us now?

6 A. Yes, I removed one of the drives and I

7 reinstalled the original mirror image backup drive.

8 Q. Why was it that you did that?

9 A. Because we have to run some of the applications

10 off the mirror image drive and it wouldn't be possible if I

11 had both drives connected together.

12 Q. By both drives, what do you mean?

13 A. One drive was with the computer -- it is the

14 government's drive. It belongs in the government computer

15 and it had utilities that I needed to -- the sound, such as

16 the sound card that you need to activate the mirror image

17 drive. I don't need that any more so I removed it and I am

18 going to use the mirror image drive exclusively.

19 Q. If you would, would you turn the computer back

20 on, and then I have a few files that I would like to see if

21 you can activate.

22 A. OK, the computer is back on and I am back to the

23 error message, the one that indicates the hardware problem.

24 Q. From here, could you take us to a file that is

25 designated as, I believe you said before, a bit map.

2681 1 A. I will run that off of -- do you want me to run

2 that file?

3 Q. Yes.

4 A. I will use Magic as the viewer. That is Photo

5 Magic.

6 Q. The name of the file that I would like to ask you

7 to retrieve is CENDY, CENDY.BMP.

8 A. I have just found CENDY.BMP and now I will load

9 and activate it.

10 MR. SNELL: And, your Honor, could everyone turn

11 to page 20 of Government's Exhibit 355.

12 Q. Mr. Swartzendruber, you also testified, I

13 believe, that there are some games on this computer, is that

14 right?

15 A. There are.

16 Q. Could you give us some examples of some games

17 that you recall?

18 A. In the games group when you activate it, there is

19 Solitaire, Mine Sweeper, Starwars, and Chess. They put also

20 Atlus, A-T-L-U-S, and then Chemicals, which is a separate

21 application.

22 Q. You said they put that in there?

23 A. Whoever, whoever -- the ones that usually come up

24 with Windows when you do an install are Solitaire, Mine

25 Sweeper. Somebody had to put in Starwars, the Atlus, and

2682 1 Chemicals. They are not included with Windows 3.1.

2 Q. Is Windows 3.1 the software that is in the mirror

3 image?

4 A. Yes, it is version 3.1.

5 Q. In addition to the Starwars chess game that you

6 just showed us, is there another chess game on this

7 computer?

8 A. There is.

9 Q. Could you show us where that is.

10 A. I will exit Windows and run a directory, and you

11 will see fifth from the bottom there is a chess game. So

12 what I will do is, I will change the directory to Chess, run

13 DIR as the directory command, and you will see files in

14 there. The one executable file is Chess, so if I run Chess,

15 it should run. I will activate that.

16 Q. Is that a software, to your knowledge?

17 A. That is a software application.

18 Q. What are you doing now?

19 A. I am just going through these screens. It

20 indicates -- I am not real familiar with this chess game.

21 It just seem seems to me when I look at it that the names

22 and the dates may be games that were played at some previous

23 time.


25 THE COURT: Yes, you don't know.

2683 1 THE WITNESS: I don't know.

2 Q. In the directory that you showed us before, was

3 there a file marked CHESS.SAV?

4 A. There was.

5 Q. Can you show us that file?

6 A. Yes. I will go to quit, and there it is at the

7 bottom, 512 bytes on 9/25/94, at 2:13 p.m.

8 Q. Can we see that file?

9 A. I will run it. I will edit it. It may not be --

10 let's do it this way. Let's do a type command.

11 Q. What do we see there?

12 A. I see initials, and I recognize that just because

13 I am familiar with the package too and I know that those

14 also come with the loaded game. The initials are RY and

15 there is a space and an SA.

16 Q. How is that file created?

17 A. It appears to me that when you save a game, that

18 that file is created.

19 Q. And when you say you save a game, who are you

20 talking about?

21 A. Whoever plays the game. If they choose to save

22 the game that they are playing, it will save it and it will

23 save those initials, or it will save a name or whatever you

24 input into the machine so you can at a later date call up

25 the game and reload it.

2684 1 Q. Have you attempted to call up and reload a game

2 in this program?

3 A. Yes, I have.

4 Q. Can you demonstrate that for us?

5 A. Yes. At the top you will see a load game. When

6 you activate that, it should load the game. There is an RY

7 and an SA. It appears that is the game that was saved. If

8 I enter again, that should be the saved game.

9 Q. Mr. Swartzendruber, is there also a piece of

10 software on the computer called Atlas, A-T-L-A-S?

11 A. Yes.

12 Q. Can you show us where that is?

13 A. I have to get back into Windows. Put no. We

14 have an Atlas in the games, and then under DSP solutions,

15 there is a World Atlas.

16 Q. Sir, could you lower the screen again just a bit

17 so that the TV monitors will show the top line.

18 A. Is that better?

19 Q. Yes, that is fine.

20 Could you put the cursor where it says Europe and

21 retrieve that. And would you now direct the cursor to Italy

22 where it says Italy, and retrieve that.

23 Have you previously had a chance to look at the

24 type of information that is in this program?

25 A. Yes.

2685 1 Q. Could you put the cursor where it says

2 information and click there. And now could you go to a

3 section of this file marked parties and political leaders.

4 A. OK, I will activate the window.

5 Q. Directing your attention to -- first of all,

6 could you put the cursor on the section political parties

7 and leaders. And would you highlight for us the first two

8 lines -- actually, just half of the second line up to the

9 close parentheses after the word secretary.

10 A. Yes.

11 Q. Could you enlarge that so it can be seen clearly

12 on the video monitors, and explain to us what you are doing

13 as you do it.

14 A. What I did was I made a copy of it. With Windows

15 you are able to cut and paste different documents. I paste

16 what I just cut out. I will do a select all and increase

17 the font size so that you can see. What I will do is

18 minimize this down so that it should be readable on your

19 screens.


21 shown Government's Exhibit 776 for identification.

22 Q. Mr. Swartzendruber, do you recognize that?

23 A. Looks like the same document we were just in.

24 MR. SNELL: The government offers 776.

25 THE COURT: Mark it in, Edward.

2686 1 (Government's Exhibit 776 received in evidence)

2 MR. SNELL: If we could just hold it up so that

3 the jury can see it briefly.

4 Q. Now going back to the screen that you were just

5 showing us, Mr. Swartzendruber, could you read what it says

6 on the second line.

7 A. On the second line it says Democratic Party (DC)

8 looks like Arnaldo or Amaldo Forlani, F-O-R-L-A-N-I, General

9 Secretary.

10 Q. Mr. Swartzendruber, you were testifying before

11 about files being deleted from the computer, is that right,

12 this morning?

13 A. Yes.

14 Q. As a general matter, files being erased or

15 deleted, is that right?

16 A. Files can be erased or deleted, yes.

17 Q. Is there a process whereby erased files can be

18 recovered?

19 A. Yes, there is.

20 Q. What does that process involve?

21 A. Typically the process that I use is, I use an

22 application program like Norton's, and I use Norton's

23 unerase feature.

24 Q. Is Norton's is a software product?

25 A. Norton is a software product. It is part of

2687 1 Norton Utilities.

2 Q. How does the recovery process work then?

3 A. What happens is that, as I was explaining this

4 morning, when you have a file name the first letter of that

5 file will be replaced and it will be replaced with a sigma

6 character in E5 text, if you do an erasure. So it lets that

7 allocation unit, that cluster open.

8 Now if you shut off the machine, if you are in

9 DOS, anything after 3.3, it will go back and start reusing

10 those clusters. If you were to take your machine and you

11 were to continue using your machine after this deletion,

12 more often than not it will not go back and rewrite that

13 until you shut your machine off. It takes the next

14 available cluster. So in actuality what will happen is, if

15 you erased the file and you continued to work, that file

16 will still reside there with the absence of the first letter

17 of the file which has been transposed, so that when DOS sees

18 it, it sees an open and available cluster.

19 So what the utility does, the utility will scan

20 the drive and look for that E5 text, that sigma character.

21 When it sees it, it will say look, here is a deleted file,

22 and you can recover it, again more often than not, if it is

23 a fresh deletion. Then what it does is it matches the

24 starting cluster -- correction -- size of the file and tries

25 to retrieve it based upon the size of the file. If it is

2688 1 less than 4096 bytes and it hasn't been overwritten and it

2 sees that E5 text and it unerases it, it is going to ask you

3 to put a character in for that erased first file name. You

4 can put in whatever you want, a Z, an A, a hyphen, whatever

5 you want, and it will recover that file. The problem is

6 when you have a real long file and it spans over many

7 clusters and the clusters aren't all contiguous, they aren't

8 all in a line, it won't know which one to pick up,

9 typically. It is a lot easier if it is contiguous.

10 Q. Is there any way you can tell what the date was

11 when a file was erased?

12 A. I am not aware of any.

13 Q. Once a file has been recovered through the method

14 that you just described, is there any difference as far as

15 the computer is concerned between that file and an active

16 file?

17 A. That is an active file once you have recovered

18 it.

19 Q. Are there any variables that determine which

20 files can be recovered, that is, which erased files can be

21 recovered and which can't?

22 A. Yes.

23 Q. Could you describe some of those for us?

24 A. One, the simplest is if you have a file that

25 spans many clusters and you erase the first cluster, you

2689 1 erase -- the root directory is written over and it doesn't

2 see that directory name, and the directory entry is not

3 going to be recoverable. What you will do is you will have

4 fragments of that file left.

5 Q. How many types of software are there that can be

6 used to recover files?

7 A. I am sure there are several utility programs that

8 can do that.

9 Q. Do they all do it exactly the same way?

10 A. I think some are more sophisticated than others

11 in their approach to automatic recovery.

12 Q. What do you mean by automatic recovery?

13 A. As I was saying, what happens is that the machine

14 will know if there is a good root directory entry that has

15 been erased and it sees that sigma character, it will know

16 the size of the file. If it is contiguous it will pick all

17 of those clusters up, all that data that will fall within

18 those clusters, and intelligently pick it up. More often

19 than not, that should work. Some of the older programs

20 there were were difficulties with. They wouldn't pick up

21 those clusters appropriately and you had to do a manual

22 unerase, which meant you had to look and make a judgment

23 call as to whether that particular piece of the puzzle fit

24 in or not.

25 Q. Is it possible on the same computer to have

2690 1 different files recovered using the same software at

2 different times?

3 A. Yes.

4 Q. Could you explain how that would happen?

5 A. You do just that. You recover files at different

6 times with the same software.

7 Q. If a computer were turned on and Windows run,

8 Windows 3.1 like we are talking about now, and then the same

9 computer were used to have files recovered through software,

10 and then it was shut off and at a later time the same

11 computer were turned on again and files were sought to be

12 recovered, would you necessarily receive the same recovered

13 files both times?

14 A. Not necessarily. You are running a risk of

15 overwriting clusters. That swap file that we talked about

16 that was dynamic and grows, and you need the memory. As you

17 use Windows it may possibly write over those unallocated

18 clusters. So you have unallocated clusters that are waiting

19 to be given a direction by the file allocation table. As it

20 reaches out and grabs and uses them, it will overwrite

21 sectors that possibly or potentially belong to another file,

22 and that is what the swap file could do, depending how much

23 you use the Windows environment.

24 Q. In your review of the computer in this case, did

25 you notice whether there were any files with dates after

2691 1 January 1, 1995?

2 A. I did.

3 Q. Did you prepare a printout of the files that you

4 found?

5 A. I did.


7 shown Government's Exhibit 777A and B, marked for

8 identification.

9 Q. Sir, do you recognize those?

10 A. Yes, I do.


12 A. Those are the directories and the files contained

13 within that were post January '95. I also recognize I made

14 an error on the directory when I typed that out. I believe

15 the E should be out of that particular directory.

16 Q. Which directory are you pointing to?

17 A. The show and tell. I believe that is SHOWNTEL.

18 Q. Other than that, are those directories fair and

19 accurate representations of material that you extracted from

20 the computer during your examination?

21 A. Yes.


23 777A and B.

24 MR. KULCSAR: There is an objection.

25 THE COURT: There is an objection to which?

2692 1 MR. KULCSAR: To both. There is a specific

2 marking.

3 THE COURT: Just put tape over it.


5 evidence)

6 THE COURT: I assume you will use A before B, so

7 let's take and put A up.

8 MR. SNELL: Actually, I think B will come

9 first -- I am sorry.


11 Q. Mr. Swartzendruber, we are now at Government's

12 Exhibit 777B on the easel. Can you tell us generally what

13 we are looking at.

14 A. We are looking at post 1995, January 1, 1995

15 files that were in each one of the subdirectories.

16 Q. Is this a listing that you prepared when you were

17 doing your examination?

18 A. I did.

19 Q. Could you walk us through the first entry that

20 you see up there and just tell us what is written there. If

21 you want to use the laser pointer that is on the witness

22 stand, that might help you out.

23 A. This directory PS2SE has this dot DB. That is

24 commonly a data base file. However, this appears to be

25 either an encrypted file or application created. I am not

2693 1 familiar with this and it is not an ASCII text file.

2 Q. What do you mean by ASCII text file?

3 A. Alphanumeric characters. It is the American

4 Standard Code for Information Interchange.

5 The next one -- actually, what I did is, I typed

6 these out and obtained these by doing a sort. So human

7 error is involved here. I believe it is SHOWNTEL. These

8 again are application files that were created. When you

9 look through the hex editor, they don't show anything that I

10 can see.

11 Q. What is a hex editor?

12 A. It is an editor that allows me to go in and look

13 at these files. I can use a directory viewer. I use Norton

14 Utilities to do that. It is a viewer to view inside these

15 files.

16 Q. Is there any text content to any of the files in

17 the first two directories that are on Government's Exhibit

18 777B?

19 A. Not that I am aware of.

20 Q. If you could move down to the directory that is

21 labeled Windows and has quite a large number of files listed

22 under it, do you see that?

23 A. Yes.

24 Q. Could you tell us what those files are.

25 A. These are all initialization files, INI files,

2694 1 and the way these work, as an example you open up an

2 application and you open up a window and then you shut down

3 Windows, it is going to save it and it makes a modification

4 in your initialization file, this INI file. There is a CIND

5 dot file but I looked and I wasn't able to retrieve anything

6 intelligible. I didn't find any alpha characters that made

7 sense. This is your bit file, the bit map file, the

8 graphics file.

9 Q. What does that graphics file do?

10 A. I can't recall what FLOCK was, but this file, the

11 bit maps file is an image file.

12 Q. What about the files, quite a bunch of them

13 grouped together, that have the extension GRP? Do you

14 recognize what those are?

15 A. Yes. Those are your group files, and the easiest

16 way -- can I take this off here now?

17 Q. Sure. Do you want to show us on the computer?

18 A. Yes.

19 These are your group files, accessories,

20 application, games, world atlas. This one, when you look at

21 world atlas and click it, there is nothing inside it. Yet

22 it creates a world atlas group file. Properties, and it

23 will show you, called WORLDDLT.GRP. You go into Windows and

24 you use Windows and you shut it off, what it will do is give

25 you the time that you closed out of Windows. It closes all

2695 1 these groups.

2 Q. Is that something that the user has to do or does

3 it happen automatically?

4 A. It is automatic.

5 Q. How about the file at the bottom of the page in

6 the subdirectory called Magic? Do you see that?

7 A. Yes. That is another INI file.

8 Q. What does that do?

9 A. It will set the parameters for that application.

10 If it makes modification, it will set the file differently

11 and make modifications when you close out of them.

12 Q. Does it affect the contents of the text file?

13 A. It should only affect the contents of the INI

14 file.

15 Q. There is a file that is two files up in the

16 Windows directory called WIN 386 and then the extension SWP.

17 Do you see that?

18 A. Yes. That is a swap file and that is what we

19 were talking about. It will reach out and grab those chunks

20 of memory and grab it out. That is why we call it a swap

21 file.

22 Q. Is there also a date and time associated with

23 that file?

24 A. There are.

25 Q. Could you identify those?

2696 1 A. Yes. It is January 18, 1995, at 12:09 p.m.

2 Q. If you could take a look at Government's Exhibit

3 777A. Do you see that?

4 A. I do.

5 Q. The file at the very top of the page,

6 WINCLIP.TIF, do you recognize that file?

7 A. Yes, we ran that today.

8 Q. Would you remind us which file that is. In fact,

9 maybe if you could pull it up on the computer, that would be

10 the best way to do it.

11 A. Let's see which directory that was in again. OK,

12 Windows Magic files. There is WINCLIP.

13 Q. Now, going back to 777A, do you see a time and a

14 date associated with the WINCLIP file?

15 A. I do.

16 Q. What are those?

17 A. January 18, 1995, 12:06 a.m.

18 Q. Based on your study of this computer, do you have

19 an opinion as to what happened with respect to this file

20 that is reflected in this exhibit?

21 A. That there was a creation or modification on

22 1/18/1995 at 12:06 p.m.

23 Q. How would that happen?

24 A. Either the file was created at that time or it

25 was modified, and how it could be modified is if it was

2697 1 pulled up and executed, and then perhaps a key stroke was

2 activated on the computer or something causing the profile

3 of that particular file to change, and then it was saved.

4 Q. If the file were printed out at that time, what

5 would have to be done?

6 A. If it were to be printed?

7 Q. Yes.

8 A. Go to file and print.

9 Q. Would it be possible to print out that file and

10 resave it even if no changes were made?

11 A. Yes.

12 Q. If that file were printed, then saved without any

13 changes having been made, what if anything would happen to

14 the time date stamp?

15 A. That should change to reflect the current save.

16 Q. And it would change to what?

17 A. Whatever the current time and date was on the

18 computer.

19 Q. Earlier this morning you were testifying about

20 something called slack area, I believe, is that right?

21 A. Yes, I was.

22 Q. Did you examine the slack area of this particular

23 computer?

24 A. I looked at a good portion of the slack area,

25 yes.

2698 1 Q. When you were looking at it, were you looking for

2 anything in particular?

3 A. Yes, I was.

4 Q. What were you looking for?

5 A. Looking for names from the key word list in

6 particular.

7 Q. What was one of those names?

8 A. BOJINKA.

9 Q. Were you able to find anything in the slack area

10 of the computer that said BOJINKA?

11 A. Yes.

12 Q. Can you show us what you found?

13 A. Yes. What I will need to do is I will need to

14 use Norton Utilities to show where I found that, and I have

15 it on a disk, the application program.


17 Q. Could you also explain to us what you are doing

18 as you do it.

19 A. Yes, I am working Norton disk edit and I am now

20 activating the hex editor to put in C drive. I am in read

21 only mode.

22 Where I found the file was actually in a group

23 name, which should be in the Windows directory. So this is

24 a list of the root directory, and there is Windows, and you

25 will see off to the far right there are three letters

2699 1 indicating that it is a directory. When I enter, it changes

2 me to the Windows directory.

3 I am looking for the -- here it is. It is WORLD

4 ATL. If you remember, that is the one that we saw that was

5 empty. What this shows is, and I don't have a mouse to show

6 you here but it is the one with the black overlay. It is

7 world ATL.GRP, which means it is the group. The size is 64

8 bytes. It is showing a date of 7/23/96, and the reason for

9 that is because we were in Windows and we closed out of it.

10 So it is going to update the group name. But we didn't

11 change the byte structure which is 64, a very small file

12 because it is empty.

13 You see the clusters off to the right, talking

14 about the clusters that get numbered? There is the cluster

15 it resides at, 35967. So we want to take a look at the

16 cluster.

17 I will activate Norton and ask it to go to 35967.

18 So 35967. I enter. It brings me up to the disk editor in a

19 hex mode. Off to the right you can see the ASCII

20 characters.

21 What it represents at the very top, if everybody

22 can see that, each one of those is a byte. There are 16

23 bytes that go across. There were 49 bytes, I believe. It

24 should take up the first four lines, and then what happens

25 after that, the rest of that could be considered slack. I

2700 1 am always careful after -- because the file ends.

2 There are three things that make a file end. One

3 is the size of the file. When it reaches past that 49,

4 everything after that is not part of the file. So you have

5 to be careful when you do this, there could be some stuff

6 dumped out of memory.

7 What would happen, we ended that cluster, which

8 was 966, so we are done with it. We don't have to worry

9 about the memory dumping out any more. So everything from

10 35967 down should be old data that was there, and one of the

11 things that comes up in this particular cluster is, you see

12 Atlas, you see some TMP files, a temporary file below it, an

13 APL, Progman, and there is a BOJINKA.TXT.

14 When I first looked at it, it appears that there

15 are directory entries and I can tell -- that is in hex at

16 the bottom and you can decipher that, you can do it

17 mathematically. Or you can use Norton and in Norton you can

18 view it as a directory. Viewed as a directory, what it is

19 showing now is that these Write files, the first ones

20 created 9/16/94, the next 9/17/94, the BOJINKA text was

21 6,400 bytes long, created on 9/18/94 at 10:23 a.m., and the

22 beginning cluster for this file, if we were to look at it

23 and do the same thing we just did, would be at 24652.

24 So out of interest I go to 24652, and what it

25 does -- your Honor, you can't see it down here but there is

2701 1 another file, XANTED1.TIF. And it threw me into this file

2 which is in the Magic directory XANTED1.TIF at cluster

3 24652. But then what is important here, from here we are

4 about mid-midway down into this file. What this file has

5 done is overwritten BOJINKA.TXT. Remember, we are at 24652.

6 So what I will do is I will link this file to the

7 directory, and it is showing that it actually started at

8 24029. Look how big it is and if you figure that out with a

9 calculator, you could see that it overwrote the clusters.

10 What we have then is the classic example of what we were

11 talking about, that BOJINKA.TXT, when it existed, existed in

12 a cluster that was overwritten by XANTED1.TIF.

13 Q. Is it possible to take a look at what is left of

14 BOJINKA.TXT?

15 A. It has been completely overwritten.

16 Q. What about the file that overwrote it?

17 A. That is the one we are looking at right now. It

18 is this one. Then what I have to do is go down to the

19 cluster where it should have occurred, which was down here a

20 way, about mid-file. So this completely overwrote it, is

21 what it appears.

22 Q. What about the temporary files that are in the

23 same, is it cluster?

24 A. That are in that particular sector of that

25 cluster, yes. Those are all sectors. Those, we can go

2702 1 back. I looked at those, and those are still readable

2 temporary files that have not been overwritten because they

3 are active files.

4 Q. Can you show us any of those?

5 A. Yes, I can. However, I am going to have to write

6 them down so I can remember.

7 Q. Please go ahead.

8 A. I need to go back to the root directory. There

9 it is. We will go down -- it is in the third sector of that

10 cluster, and what we have got is WRI336F.TMP, WRI0361.TMP.

11 You have the SPL1A58.TMP, the WRI3126.TMP.

12 So then what I will do is, I will get out of

13 Norton and instead of looking at it through the hex editor,

14 I can pull it up in Write, where it is more intelligible. I

15 will activate Accessories and Write, open, go to the Write

16 files, but what I will ask for, I am going to ask for these

17 temporary files, and I will try and speed this up a little

18 bit.

19 WRI336F.TMP. There it is. I will activate the

20 program, I will convert it to a Write document. So it is a

21 remnant. It is another one of those files that appear that

22 it was either appended, the original document with this

23 information, it was storing it out in memory before the

24 original document, but this is what that particular TMP file

25 looks like.

2703 1 Do you want to go to the next one?

2 Q. Would you please.

3 A. The next one is WRI0361. There it is. I will

4 activate it. That took it right in as a Write document, so

5 this one is real close to the original document, if not a

6 mirror image -- I am not going to say mirror image, if not a

7 copy of the original document, because it saved all the

8 formatting codes when it brought it up.

9 Q. What do you mean all the formatting codes?

10 A. The bold, there is codes that create all this,

11 all the formatting codes. So it recognized it as a Write

12 document.

13 Another one was the WRI3126, and again it saved

14 the formatting codes, probably real close to the original

15 document.

16 Q. By real close to the original document, what do

17 you mean?

18 A. That it looks like maybe a save was done, well,

19 in Write, and it could have been an unexpected stoppage in

20 the program. Either the electricity could have closed out,

21 it could have closed out Windows improperly. Maybe it went

22 into another function. As you can see, this is a

23 multitasking environment and you can write in this file go

24 to another task, and sometimes the memory blows the

25 application you are on. You are supposed to create a

2704 1 temporary directory for these files to go into, and in the

2 absence it falls into the Windows directory. That is why

3 you have so many temporary files in there. This one saved

4 even the formatting codes. The other one that you saw

5 didn't.

6 Q. Do you have any more up there?

7 A. The only one, I don't know if this is going to

8 come up or not, is the SP -- I think what is interesting

9 when I looked at this too was the time -- here is the one we

10 had. I will do a conversion on that. This is coming up

11 just with a bunch of junk. I don't see anything in this

12 file that would be of --

13 Q. Mr. Swartzendruber, the files that you have just

14 been showing us, these temporary files, could you show us

15 again the directory where the time date feature is present?

16 A. I will maximize the window here, we will view it

17 by date, which it already is, and those were WRI336F.

18 OK, here we go. There is WRI336F.TMP, and then

19 you can see the date on that is 9/16/94, 264 bytes at 11:14

20 p.m., and then the WRI0361 is right here, and this is what

21 is interesting. You look at WRI0361.TMP, and if you look at

22 the file size, 3456 on OBAID.TXT, same day, same time. So

23 that could explain why the OBAID.TXT was a save, and that

24 was a WRI0361. We can associate it with the Write document

25 by clicking on it, going to file, doing an associate, we

2705 1 will associate it with Writes. Then if I clicked on it, and

2 then the OBAID.

3 Now, what happened here is, this shows me the

4 note pad brought up will be dot text and actually this is

5 the formatting code for Write. So for some reason it

6 associated OBAID, because of the text file extension, when

7 actually this is a Write file. So if I wanted to do this

8 right -- there is the temporary file. I will go to

9 Accessories, get into Write, I will open it, I will find

10 OBAID.TXT, I will open it, and then what you do is, you have

11 the temporary file, OBAID.TXT, and you have the -- I am

12 sorry, the temporary file above will be OBAID.TXT and you

13 can see that it looks like the same document.


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16

17

18

19

20

21

22

23

24

25

2706 1 Q. Mr. Swartzendruber, based on your study of this

2 computer do you have an opinion as to how long it would take

3 to install all of the files that you've been showing us here

4 today?

5 A. Including temporary files?

6 Q. Everything. The way it is on the computer as you

7 understand the computer?

8 A. Well, it's a very difficult question because what

9 happens is it's one thing to install an application program,

10 but what you're doing is you're creating something that an

11 application would create in and of itself, so that means

12 that the human intervention has to be that you have to find

13 those files that are associated to the text files and create

14 those temporary files. So to do that is not an automated

15 process. That would be an enormous task to do that.

16 MR. SNELL: Your Honor, I have no further

17 questions.

18 THE COURT: I guess the record should reflect you

19 returned my pen.

20 Mr. Yousef. You wants a couple of minutes now?

21 Sure, fine. Paul, would you down that so the jury can get

22 out. Okay, folks.


24

25

2707 1 (Jury, witness; not present)

2 THE COURT: Roy, do you want to put another chair

3 at the table so you can have your expert sit there with you?

4 MR. KULCSAR: I appreciate that, your Honor. I

5 think one one reason we asked for the break is we had

6 discussed with Mr. Snell that we would not do anything with

7 the computer while his witness was still on to interfere

8 with what they had scheduled or set up, so I may need a

9 couple of minutes, I don't know.

10 THE COURT: I'm somewhat at a loss. You're not

11 going to do anything with the computer at all?

12 MR. KULCSAR: I think we are, your Honor. What

13 I'm saying is that during the break we discussed with

14 Mr. Snell the fact that we wouldn't have our expert do

15 anything with the keyboard or the computer, because

16 Mr. Snell had it set up in such a way that it would

17 interfere with what his witness was doing.

18 What I'm saying is we may need more than just a

19 couple of minutes on the break.

20 MR. SNELL: Your Honor, as I understand it,

21 Mr. Kulcsar wants his expert to examine the computer. I

22 don't understand if there are going to be any changes made

23 to the computer as it has been set up now, except by the

24 witness when the witness is being examined.

25 THE COURT: All right. How long is it going to

2708 1 take, Mr. Expert?

2 MR. LEVENTHAL: No idea. Probably not long.

3 THE COURT: Not long, okay.

4 MR. SNELL: Also, your Honor, I ask the Court's

5 permission to have the witness just observe what the expert

6 is doing when he's looking at the computer? Would that be

7 possible?

8 THE COURT: Sure. Okay.

9 (Recess)


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13

14

15

16

17

18

19

20

21

22

23

24

25

2709 1 (In open court; jury present)

2 DAVID SWARTZENDRUBER, resumed.

3 THE COURT: Okay, Mr. Yousef.

4 CROSS-EXAMINATION


6 Q. Good afternoon, sir. Sir, do you have any formal

7 training in the computer area, that is, university training

8 in computer programs or operation?

9 A. I'm sorry, do I have any formal education?

10 Q. Do you have any formal training?

11 A. Yes, I do.

12 Q. Do you have a regular degree in computer

13 programming or computer operation?

14 A. I don't have a degree in computer programming,

15 no. I've got one in business administration.

16 Q. Have you taken any formal courses in the areas of

17 operating systems or file systems?

18 A. Yes, I have.

19 Q. Can you tell us please what courses you had?

20 A. I've taken classes at the University of

21 California, San Diego, in C programming language. I've

22 taken courses at Rosemont College in San Diego on BASIC.

23 I've taken classes at Fullman College in LeMesa in Field 1,

24 program language 1, COBOL. And I also have attended

25 seminars. And I'm a member of the International Association

2710 1 of Computer Investigator Specialists. It's a law

2 enforcement group where we attend, or I have attended

3 several of the two-week seminars, intensive forensic

4 training.

5 I've attended Department of Justice schools in

6 computer investigations. I've attended the Department of

7 Justice -- actually, it's the Search Group, it's under the

8 Bureau of Justice Administration Funded Project, where I've

9 taken classes in computer forensics. And also I've attended

10 classes given by the city of San Diego in the SAS

11 programming language analyst system, programming analysis

12 for a year.

13 Q. But, sir, do you have any formal courses in the

14 areas of operation operating systems?

15 A. In such as DOS, such as that?

16 Q. Yes, sir.

17 A. Yes, I have.

18 Q. Would you tell us what courses you've had in the

19 operating system, sir?

20 A. I've attended courses through the City of San

21 Diego on different DOS courses. I believe there was an

22 intermediate and advanced course. I can't exactly recall.

23 It was given by the City of San Diego and offered to the

24 Police Department employees.

25 Q. Do you recall what type of a course it was?

2711 1 A. I believe it was an intermediate and advanced

2 course. We had a syllabus, and we attended a lab and we

3 went through the lab and learned about the DOS operating

4 system at the time. It's a number of years ago.

5 Q. Do you have any courses in file systems?

6 A. I don't understand, a course in file systems?

7 Q. Sir, is file systems a standard computer course?

8 A. I'm not aware that it is. I don't know.

9 Q. Now, sir, the operating system courses that you

10 had, would you tell us please how long was the course?

11 A. It was a long time ago and I believe it was one

12 or two days.

13 Q. And would you tell us what type of certificate

14 you received?

15 A. I believe upon completion of the course everybody

16 received some sort of certificate, attendance certificate,

17 but I can't recall.

18 Q. Is that a degree? Do you recall what type of

19 certificate it was?

20 A. No, I think it was just for attending the course

21 to show that you sat through the curriculum.

22 Q. Do you recall for how many hours was the course?

23 A. It was one or two days. It was either 8 or 16, I

24 can't recall. It was quite sometime ago.

25 Q. How long ago was that, sir, do you recall?

2712 1 A. Just a guess, eight, ten years ago. I'm sorry,

2 it wouldn't be that long. Let me think. Maybe seven years

3 ago. I'm not sure.

4 Q. Sir, have you ever published an article in the

5 computer field?

6 A. No.

7 Q. Other than the one time which you were accepted

8 in the court in Canada, have you ever been accepted as an

9 expert in any other court?

10 A. Yes, I have been an expert in other courts.

11 Q. Would you tell us which other court, please, were

12 you accepted as an expert?

13 A. Are you talking about in the computer field or

14 any expertise?

15 Q. Yes, sir.

16 A. Not as an expert in computer, computer

17 examinations and other fields of expertise.

18 Q. Have you ever presented a course or a seminar in

19 computer field, sir?

20 A. I have.

21 Q. Would you tell us what type of courses or

22 seminars?

23 A. I myself and personnel from Novel Corporation

24 sponsored a course for law enforcement. It was a day-long

25 course in the recognition identification of pirate online

2713 1 systems.

2 Q. How many courses have you presented, sir?

3 A. We did the one for law enforcement. We did

4 another one for Novel in Orlando, Florida. It was a

5 two-week course for the International Association of

6 Computer Investigator Specialists where the same curriculum

7 was given in a shorter time period.

8 Q. What was the course about, sir?

9 A. Online pirate systems, those pirate bulletin

10 board systems, the distribution of copyrighted material

11 using modems to facilitate the distribution.

12 Q. So, am I correct, sir, that the course had

13 nothing to do with operating systems or retrieving files or

14 examining hard disk?

15 A. No, that's incorrect. The ones that I taught?

16 Q. Yes, sir.

17 A. The ones that I taught when you say having to do

18 with operating systems what do you mean? Did I use an

19 operating system, that I teach about operating systems

20 during this course?

21 Q. Yes, sir, teaching DOS system or operating

22 system?

23 A. We do as a part of the curriculum, but I don't do

24 that. We teach about Novel, and Novel netware, because

25 that's pretty much the network of choice among some of the

2714 1 pirate organizations.

2 Q. Now, sir, you testified today on direct about

3 some files which had dates and times to them, do you recall

4 that?

5 A. I do.

6 Q. Now, how does the computer stamp a date for a

7 file?

8 A. On creation or modification.

9 Q. Must each file have to have only one date or are

10 there more than one date assigned to each file, sir?

11 A. It should have one date to the best of my

12 knowledge.

13 Q. Is that the same date is set for creation of the

14 file or modification?

15 A. Yes.

16 Q. Can you tell whether that date is the date of

17 modification or creation of the file?

18 A. I wouldn't, no.

19 Q. Sir, can you as a user of the computer set the

20 date to any date you like?

21 A. There are range dates, yes, you can set the

22 computer.

23 Q. How long does it take you to change the date?

24 A. Just a matter of seconds.

25 Q. Now, for example, if you set the date now to

2715 1 December of 1994, and you would be at the file now, what

2 would be the date that would be assigned to that file?

3 A. It should be the date that the system clock --

4 you're asking two questions. I wouldn't create the date. I

5 create the file, and the computer through the clock will

6 create the date, and it will give it that date and time

7 stamp. Is that what you're asking? Is that what you're

8 asking?

9 If I created it today and it was January 1 today,

10 it would show January 1, whatever the system clock shows.

11 Q. So if you set the date to January, 1994, and you

12 create a file you would stamp that file January 1, 1994?

13 A. If that is what the system clock has, generally

14 that's what it will do.

15 Q. Now, if you change the date again to, for

16 example, January of 1995, and you created a different file

17 would that file also be given a new date of January, 1995?

18 A. Again, what will happen is whatever the system

19 clock shows is what that time and date stamped at, so

20 whatever you set it at it should reflect that on the file.

21 Q. Would the previous file that you just created

22 just a few minutes ago, and shows that it was created in

23 1994, when you change the clock, would the previous file

24 date also be changed?

25 A. So you've created one date over here.

2716 1 Q. Yes.

2 A. 1994. You've created another 1995. You leave

3 your system clock on 1995. You're asking if it will change

4 that 1994 date?

5 Q. Yes, the first file.

6 A. It shouldn't. It should remain the same.

7 Q. Now, sir, the computer which is in front of you

8 has some files, and am I correct that each file has a date

9 assigned to it, stamp or date?

10 A. There is, for each of the active files there is a

11 date and time stamp.

12 Q. Now, do you know if these dates are true dates,

13 represent the true dates when these files were created or

14 false dates?

15 A. True dates, so what you're asking me is the

16 files --

17 Q. If the files were created on the dates which are

18 shown --

19 A. And then they were changed?

20 Q. No, if they were created, if the file says that

21 it was created on September of 1994, do you know if it

22 actually had happened, if it was created in September, or if

23 A. Looking at a file I don't think there is any way

24 you can tell.

25 Q. So can you tell if the dates are true dates or

2717 1 false dates? Is there any way for you to tell?

2 A. When you say false dates, that it's not

3 representative of the time and date stamp that was actually

4 done?

5 Q. Yes, sir.

6 A. I don't know how you could tell that.

7 Q. Do you know if it is --

8 A. Now, that's just looking at, what you're bringing

9 up is your, if you look at a directory and on that directory

10 all you see are the bytes of that file you see the starting

11 cluster, and you see a date and time stamp, if that's what

12 I'm looking at, then I don't know how you could authenticate

13 that date.

14 But now that you're asked to go beyond that and

15 you're looking to authenticate dates, there are a lot of

16 other variables that come into play. If I activated a file

17 and I look at that file and the file was a letter with a

18 date on it that would cause some suspicion. If there were

19 files that were created as a result of the activation of

20 that file, or the creation of that file that were

21 application specific, like temp files, that creates a

22 suspicion. All those things come into play. It's not just,

23 if you look at the lines, if you're asking if I look at a

24 line, no, I can't.

25 But if you're asking if you go beyond that in the

2718 1 file to authenticate that time of day you have to take in a

2 whole array of variables to do any kind of time and date

3 authentication or a change.

4 Q. Well, sir, the files which you testified about

5 today on some of them I believe have a date of creation of

6 September of 1994. Is there any way for you to tell if they

7 were actually created in September or January of 1995?

8 A. Again, I would have to rely upon the date that

9 the date and time stamp from the computer gave those files

10 in the absence of looking at other variables. So when I

11 look at those I didn't have the privilege of examining

12 evidence that would give me, not in this case, but if I go

13 beyond this to look at the date and time stamp and the

14 authentication of a file that you just -- I know what you're

15 asking, but I can't, there's a lot of variables that come

16 into play to give an authentication.

17 When I did my examination I looked at the dates

18 and time, and for me I accept that that's the date and time

19 stamp.

20 Q. Did you do any examinations to these files of

21 this computer to see whether they were created on dates

22 which are assigned to them or not?

23 A. No, my examination did not go into authentication

24 of dates.

25 Q. If someone goes into a file later, after it was

2719 1 created, would it be assigned a new date again, updated?

2 A. If done properly, if somebody goes into the file

3 and they make a change or a modification to that file and

4 the system is working properly it should give a new time

5 stamp and a date stamp.

6 Q. Does the computer keep anywhere -- withdrawn.

7 Sir, do you know how many times, if any, the dates on this

8 computer was changed since it was first manufactured or

9 purchased?

10 A. My computer here?

11 Q. The computer which you had the copies of this

12 hard disk?

13 A. I don't understand the question. The clock?

14 Q. Did you receive -- the computer in front of you

15 does it have a hard disk?

16 A. Yes.

17 Q. And the files which you testified about today

18 were in files which you had stored I believe in that

19 housing, is that correct, sir?

20 A. That is correct.

21 Q. Is there any way for you to tell how many times

22 the digital clock of the computer was changed since it was

23 first manufactured, of the original computer which contained

24 the hard disk?

25 A. Of which the mirror image came from. No, I'm not

2720 1 aware of any.

2 Q. Now, sir, when you first switched on the computer

3 there was a drawing of a tree and a bird, and you called

4 that a wallpaper, am I correct, sir?

5 A. Yes.

6 Q. Is that what you generally call the drawing which

7 first comes on the screen before pressing any key or before

8 touching anything from the keyboard?

9 A. What came up was the wallpaper bitmap.

10 Q. I'm sorry, sir?

11 A. What came up was the wallpaper. That was you can

12 select when you get into the desktop application any one of

13 the bitmaps you want to do your wallpaper and apparently the

14 SANE.BMP were selected, that's why that one came up.

15 Q. Would you tell us what the wallpaper is, sir?

16 A. Pardon me?

17 Q. Would you tell us what a wallpaper is?

18 A. Well, what that is is that's just a graphic that

19 comes up that you can select that you can have a nicely

20 decorated screen before you activate your desktop.

21 Q. And does it appear on the screen even without

22 touching or pressing any key from the keyboard or mouse or

23 anything?

24 Does it come by itself to the screen? You don't

25 need to touch anything, to press anything?

2721 1 A. The way this one was set up the first thing that

2 comes up is the Toshiba with a Windows, and then it will

3 come up with the wallpaper and with the error message.

4 THE COURT: But you don't touch anything. It

5 does it all by itself after you put it on?

6 THE WITNESS: That's correct, your Honor.

7 THE COURT: Okay.

8 Q. Now, in order to change the wallpaper or the

9 drawing which comes first on the screen, do you need to

10 change the contents of any of the files which are stored in

11 the hard disk?

12 A. To change the wallpaper do you have to change the

13 contents?

14 Q. Do you need some other drawing to come up on the

15 screen other than the -- if you need sky line, or some other

16 buildings or photograph a picture of buildings to come up on

17 the screen instead of the tree and the birds which are shown

18 now, in order to do that, do you need to change the contents

19 of any of the files which are stored in the hard disk?

20 A. If you want, if you're asking if you have to

21 change the bitmaps to do that? No. What you have to do is

22 you have to get into the desktop, activate it, go into the

23 control panel desktop, and then what you do is you can

24 select, I believe it says, wallpaper.

25 You hit the selection bar and you can scroll down

2722 1 different bitmaps, and then you can select another one.

2 When you do that, if you're asking if anything changes on

3 that hard drive? It's very possible your SWAP file might

4 change some things around, and also maybe some of the

5 initialization files, but not the BMP files themselves to

6 the best of my knowledge would not change.

7 Q. Sir, my question is, do you need to change

8 anything at all from the hard drive in order to make a

9 computer come with a different drawing or a different

10 wallpaper?

11 A. Yes, sir, you do.

12 Q. So would it be fair to say that if the same

13 computer was brought back to you two days later and when you

14 first switched it on and you saw a different drawing, would

15 it be fair for you to say based on that drawing the, drawing

16 was changed, that the hard disk contents were changed?

17 A. That would tell me that when you say change, I

18 don't understand what you mean.

19 Q. Modified?

20 A. What you would do to do that is you would select

21 a different bitmap so you'd have to go into the desktop,

22 activate it, select a different bitmap to come up and you're

23 asking if the contents of the hard drive changed the bit by

24 bit sector by sector structure.

25 I'm sure that there is some small minute change

2723 1 in the initialization files and maybe, maybe the SWAP file,

2 depending upon how much you've used that computer in the

3 course of changing the bitmap.

4 That may be the first thing you've done, but in

5 and of itself if you open it, you get in and you change

6 that, now I'm sure there's a few files that will be updated

7 and when you close out the group will be updated, but it

8 shouldn't touch any active files at all except for the

9 initialization file.

10 THE COURT: You want to do it? I don't know. I

11 wouldn't know in a million years how to do it. Can you do

12 it here now?

13 THE WITNESS: Sure, your Honor.

14 THE COURT: Is that what you want?

15 DEFENDANT YOUSEF: Yes.

16 THE COURT: Okay, go ahead and do it.

17 A. Do you want me to bring, just change this

18 wallpaper now?

19 THE COURT: Put it on a different one.

20 A. We're going to go to Main, and then you click the

21 control panel, it will load it up, and you'll have a desktop

22 and up here what you can do is you can have screen saver.

23 This isn't a screen saver. You can select squares, and then

24 I'll get out, and there's your squares. You can go back in,

25 you can select thatch and there's your thach. Then what we

2724 1 can do is you can go go back and we can select, and there it

2 is. That's how you change it.

3 Q. If you turn on the computer again does it come

4 with a new drawing?

5 A. It should come back to the last one you

6 activated, so if we turn this off, well, let me show you.

7 You want me to demonstrate this?


9 A. Would you like me to demonstrate this with a

10 different wallpaper?

11 Q. Yes, sir, if you can. Did you finish doing it,

12 sir?

13 A. Yes.

14 Q. So if you switch off the computer now and switch

15 it on again?

16 A. It will come back here. Sorry, I did switch it

17 on. I thought that's what you wanted. Okay, it's off. Now

18 we're activate the Windows program. It comes up with

19 Toshiba. There it is.

20 Q. But that's the same wallpaper, isn't it, sir?

21 A. I'm sorry. I did that once before. I called up

22 the other one. When I changed it was, I shut the machine

23 off. I'll just do it again slower.

24 Q. Well, sir, it's okay. Just generally, sir, when

25 you do that you need to change, can you do it without

2725 1 changing anything from the hard disk?

2 Q. Can you do it without modifying any of the hard

3 disk contents?

4 Q. Or you have to make some change in the hard disk?

5 A. Well, you have to make changes because it has to

6 be able to see that file so I mean you make subtle change

7 but can you do it without? I'm not really sure if you can.

8 I don't know if you can go in and change that to another

9 bitmap file and call that one up and what the change would

10 be. It might blow out.

11 Q. Well, sir, just in simple terms, if you do that,

12 do you need to change contents of at least one file?

13 A. That's what you're losing me. The bitmap does

14 not change. The bitmap will remain constant. That file

15 remains constant. It should remain constant. Now, is that

16 what you're asking? That bitmap will not change. I can

17 change to the bricks, to the thatch and that file should not

18 change. The cluster location should not change. The time

19 and date should not change I don't believe. It shouldn't

20 change.

21 Q. Are there any changes made at all?

22 A. Yes. There must be some. The initialization

23 file I would believe that that should change, because what

24 it has to do it has to tell it to come up again in the

25 thatch or the brick or whatever. So that that would

2726 1 probably change, and might be some other subtle changes that

2 I'm not aware of.

3 Q. Now, sir, you testified about files which

4 contained photographs. Do you recall that?

5 A. Yes, I do.

6 Q. How would a person be able to store a photograph

7 into the computer?

8 A. Well, there's a couple of different ways. You

9 can scan a photograph into the computer. You can also take

10 a picture, a digital picture with a digital camera and cause

11 it to come into the computer. You can receive a file via

12 modem, or you can transfer it off of a disk to your

13 computer.

14 Q. Now, sir, would you describe how a scanner looks

15 like?

16 A. There are several different types. There is hand

17 scanners. There's full flatbed scanners. And essentially I

18 guess the best analogy that I can think of is a very

19 flattened out copy machine. If you lift the top off and you

20 put your document on and you close the top, and then what it

21 does is it scans it line by line and brings that image into

22 your computer.

23 Q. And what's the second way of doing it, sir?

24 A. Well, you can take a photograph with a digital

25 camera, and you can load that directly into your computer.

2727 1 Very common nowadays, you can do it.

2 Q. What does the digital camera look like? Does it

3 look like a normal camera?

4 A. They look similar to 35 millimeter cameras.

5 Q. And what is the third way, sir?

6 A. You could receive it via modem file. If you have

7 an IDSN line you can receive at high speed. If you have a

8 T1 connect you can receive it through net. If you -- there

9 are several ways to receive files to your computer. You

10 could also receive it via a disk, removable disk, tape

11 drive, if it's a file that is located somewhere else placed

12 on that computer to be transferred to yours.

13 Q. Am I correct, sir, the person who will send you a

14 photograph to the model would also need to have either a

15 scanner or a digital camera?

16 A. At some point somebody has to have a device that

17 would take that image and cause it to be digitized and a

18 file created.

19 Q. Now, sir, beside the camera or beside the scanner

20 itself what else do you need in order to make the computer

21 able to store photographs or to load and save photographs?

22 A. Well, it load and save photographs. DOS will do

23 that. You can save that file. Now you may not be able to

24 read that file without without a proper application program,

25 but you can save the file. You can't read it maybe, but it

2728 1 can reside on your hard drive.

2 Q. So is all what you need is just to buy a scanner

3 and hook it to the computer?

4 A. No, not if you're talking specifically about your

5 computer hookup to the scanner. What you are going to need

6 are the proper drivers for that scanner. You're going to

7 need the scanner. You're going to need the cabling. You're

8 going to need the software that will enable you to receive

9 those images. And then once you have those stored images

10 you're going to need something that can read those images

11 and read those particular file formats, so you can save

12 them.

13 Q. Now, sir, the files which you testified about

14 that they were stored or modified or created in the computer

15 on or after January 2, 1995, do you know if they were

16 created on these dates, or they were modified on these

17 dates?

18 A. I can't tell if a file has been created or

19 modified. It could be created and then modified within a

20 matter of seconds.

21 Q. When did you first start examining the contents

22 of the hard disk which you received?

23 A. I received a mirror image on a 4 millimeter DAT

24 tape back in February and that's when I first started taking

25 a look at it.

2729 1 Q. Is that February of 1996, of this year, sir?

2 A. That is correct, sir.

3 Q. Now, do you know when this mirror copy was done,

4 was made?

5 A. I believe it was sometime around, I'm not sure,

6 I'm not sure of the date.

7 Q. Approximately if you recall, sir?

8 A. I can't recall right now.

9 Q. Do you recall which year?

10 A. I believe it was 1996.

11 THE COURT: Did you make it?

12 THE WITNESS: No, your Honor, I didn't. I

13 received it.

14 Q. I'm sorry, sir. You said it was made in 1996?

15 A. I'm not sure. I would have to check. I do not

16 know.

17 Q. Sir, do you know prior to making the mirror copy

18 of the hard disk, do you know what were the contents of the

19 hard disk prior to making the copy?

20 A. I did not make the copy. I received a mirror

21 image copy and a 4 millimeter DAT, so I did not have, what I

22 had was a tape that was sent to me. And then I took that 4

23 millimeter DAT and restored it on a control computer.

24 Q. Sir, supposing that the copy was made on 1996, do

25 you know what were the contents of the original hard disk

2730 1 prior to 1996?

2 A. So you want me to, you want me to accept that it

3 was made in 1996, and what were the contents prior to 1996?

4 Q. Of the original hard drive?

5 A. What were the contents? What do you mean?

6 Q. Did you ever take a look at the original hard

7 drive?

8 A. I never took the original hard drive. I looked

9 at a mirror image copy.

10 Q. Did you ever make a comparison between the

11 original hard drive and the mirror copy?

12 A. I didn't, no.

13 Q. So all your testimony today was from the mirror

14 copy, am I correct, sir?

15 A. That is correct, sir.

16 Q. Sir, did you make any tests to see the number of

17 files which were created on or after January 6th of 1995?

18 Did you make any tests from the mirror copy which you have?

19 A. What do you mean?

20 Q. Did you make any tests to see or any examinations

21 on the mirror copy which you have to see the number of files

22 which were created on or after January 6th of 1995 which

23 have dates assigned or stamped dates on or after January 6th

24 of 1995?

25 A. What kind of tests?

2731 1 Q. How can you tell, sir, if a file was created on

2 or after January 6, 1995?

3 A. I looked at the directory entry for the time and

4 date stamp.

5 Q. So, sir, did you look at the directory and time

6 and date of the files which are stored in the mirror copy to

7 see if there were any files which were created on or after

8 January 6th of 1995?

9 A. Yes, I did.

10 Q. And could you tell us, sir, what's the number of

11 files which were created on or after January 6th of 1995?

12 A. It's on one of the charts here. I believe it was

13 just guessing. Probably in the 20, 25, 30 files, 25 maybe.

14 Q. Are these text files or --

15 A. I believe that one was a text file and I took a

16 look at at it, and just didn't have any intelligible data in

17 it.

18 Q. Do you have anybody who knows anywhere it says

19 the exact number of files that were created on or after

20 January 6, 1995?

21 A. Do I have a list of that?

22 Q. Yes, sir.

23 A. Yes, I testified to that and I believe it's one

24 of the exhibits here.

25 Q. Are these the only files which were created on or

2732 1 after January 6, 1995?

2 A. The only ones that I could find.

3 Q. Are these the only files which are assigned a

4 date on or after January 6, 1995?

5 A. January 2d?

6 Q. 6th.

7 A. 6th?

8 Q. Yes, sir.

9 A. Again, if you're asking me if these are the files

10 that I found, those are the ones that I found, and I

11 testified to.

12 Q. Did you check all the files which were stored in

13 the mirror copy of the hard disk, sir, in order to come out

14 with these results?

15 A. To receive those files that were post-January,

16 1995?

17 Q. Yes, sir.

18 A. January 1? What I did is I went in and did a

19 directory sort. First what I did is I just did a simple DOS

20 command and took all the directories and put them into one

21 big file. Then I went in did a sort to an EXCEL spreadsheet

22 and then I just retyped the labels. That's how I did it.

23 Q. And did that include all the files in the hard

24 disk?

25 A. Yes. I did it for all the files in the hard disk

2733 1 that I could find.

2 Q. Sir, you testified about a registration name on

3 the windows program. Do you recall that?

4 A. I do.

5 Q. How does a person go about registering their name

6 in the program? How does it happen?

7 A. This should probably be done at the installation

8 of Windows.

9 Q. And after you stored this name, is it possible to

10 change it later?

11 A. I've never tried it. I don't know.

12 Q. Do you know if the name which is registered on

13 that program was changed at all during any time, at any time

14 at all?

15 A. If the name was changed?

16 Q. Yes.

17 A. Am I aware of prior to receiving the mirror image

18 copy? Every time I've reactivated the mirror image copy

19 that's the same name that comes up.

20 Q. Do you know if there is any way for you to find

21 out whether this name, whether there was a different name

22 and then it was changed to the name which appears now?

23 A. I don't know how to do that.

24 Q. Now, sir, you testifed about unintelligible

25 files, do you recall that?

2734 1 A. I do.

2 Q. And that you used a floppy disk to decrypt some

3 of these files, am I correct, sir?

4 A. There was a file on the floppy disk that is a

5 decryption program, yes.

6 Q. Did you personally prepare that program of the

7 file which is the floppy disk?

8 A. No.

9 Q. Do you know who prepared, who did that, sir?

10 A. It was my understanding that Ray Canlas had done

11 that.


13 A. Ray Canlas.

14 Q. And do you know who that person is, sir?

15 A. I've never met him, but I understand it was one

16 of the witnesses from the Philippines who examined the

17 computer.

18 Q. When did you first receive this disk, sir?

19 A. I'd have to, I'm not quite sure when I did. It

20 was March or April I believe. I'm not sure.

21 Q. 1996?

22 A. 1996, correct.

23 Q. So it's your testimony that you decrypted the

24 files which were stored on the mirror copy using the floppy

25 disk which was provided from the Philippine National Police

2735 1 personnel?

2 A. That is correct. Yes.

3 Q. Did you find any files or any program in the

4 computer which could have been possibly used by the person

5 who owned the computer or the user of the computer to

6 decrypt these files?

7 A. To decrypt or encrypt.

8 Q. To encrypt and decrypt?

9 A. I saw the files on the computer that appeared to

10 be written in BASIC that may have been used to encrypt and

11 decrypt in some form or another, yes.

12 Q. Did you use any of these files?

13 A. No, I didn't.

14 Q. Did you try to use them, sir?

15 A. Yes, I did. When I first received the computer I

16 did try a couple of BASIC programs, but I didn't continue

17 with it.

18 Q. Were you able to use them successfully to decrypt

19 the unintelligible files?

20 A. I wasn't.

21 Q. And how long did it take you, sir, how long did

22 you spend on these files approximately in trying to use them

23 to decrypt the unintelligible files?

24 A. Very short time.

25 Q. Approximately, sir?

2736 1 A. Oh, maybe an hour.

2 Q. And the only way in which you were able to

3 decrypt these files was by the floppy disk that was provided

4 by the Filipino National Police personnel. Am I correct,

5 sir?

6 A. No, that's not true. What we did is I contacted

7 a company Access Data in Utah, Eric Thompson, and sent a

8 copy -- actually, it was I sent him some files from the

9 computer to attempt to decrypt and they successfully

10 decrypted some of the files.

11 Q. Did you also send them the floppy disk which was

12 provided to you?

13 A. No. I made them a copy.

14 Q. So you sent them the copy, sir?

15 A. I sent them a -- what I did is I copied the files

16 onto a diskette.

17 Q. The files which were provided by the Filipino

18 National Police?

19 A. No, I -- well, yes, I did as a matter of fact. I

20 sent them the copy. I believe I used a program called

21 Amethyst which makes a mirror image of this disk and I sent

22 them a copy of the one that was sent to me. In addition, I

23 sent him files off the computer on a separate diskette.

24 DEFENDANT YOUSEF: Your Honor, can we break now

25 if it's possible?

2737 1 THE COURT: You want to break now? Yes.

2 However, I want to do one thing first. You talked about

3 having an Atlas on this computer. You want to get me into

4 the Atlas? It's under BSP Solutions. Okay. Now, let's go

5 over to Southeastern Asia. No, that's Southwest.

6 Okay. Now, go into the Philippines if you would.

7 Okay. Now, is Manilla there?

8 THE WITNESS: Here.

9 THE COURT: Click that on. Okay, just leave it

10 on for a minute. We heard so much about some of these

11 places, ladies and gentlemen, it seemed simple to put the

12 thing up there.

13 There seems to be a distance thing right up on

14 the left-hand side under the word Philippines, and then

15 we've heard a lot of different words. They told us about,

16 for example, Malate, which is well, you want me to do it?

17 Here is Malate, it seems to be. Then we heard about Makati.

18 And then we heard about the Malacanang Palace. You see

19 that. There was some talk also about Quezon City, which is

20 up here apparently.

21 But it was sitting there in the computer so I

22 decided to look for it, and I assume that you might be

23 interested in where these places were, too.

24 All right, ladies and gentlemen, we will come

25 back for more bits and bytes tomorrow, 9:30.

2738 1 Please, once again, make sure you stay away from

2 all the media. Okay.


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2739 1 (Jury not present)

2 THE COURT: You might as well close it up now. I

3 don't know how you go about that.

4 THE COURT: All right. Come back tomorrow

5 morning at 9:30. Does anyone want to object? It was in

6 evidence, the map. All that had to be done was found. I

7 will admit never having seen a map of Manilla before. I had

8 no clue as to what they were talking about.

9 MR. KULCSAR: No objection.

10 MR. GREENFIELD: We'll get a detailed map later.

11 THE COURT: I don't want it. The last time I got

12 a detailed map was of Long Island Sound and somebody thought

13 I owned a boat. I could care less about. I didn't own a

14 boat either.

15 MR. GREENFIELD: Your Honor, before we --

16 THE COURT: Then I had to tell them I not only

17 didn't own a boat, I don't swim. How about that?

18 MR. GREENFIELD: Before we do cross-examination

19 tomorrow will we be conducting the voir dire?

20 THE COURT: You sound like you are a member of

21 the media.

22 MR. GREENFIELD: The reason I ask, your Honor, is

23 Mr. Garcia indicated the next witness after this would be

24 the witness whose focus would be on my client.

25 THE COURT: You can step down, sir.

2740 1 THE WITNESS: Thank you, your Honor.

2 (Witness not present)

3 THE COURT: I assume that Mr. Yousef tonight is

4 going to plan out some cross-examination. Are you expecting

5 to go?

6 MR. GREENFIELD: I have some cross.

7 THE COURT: Are you, also, Clover?


9 THE COURT: So I would guess that it will take

10 sometime. I doubt if we will get to an extra witness, but

11 sometime during the day I will be talking to the jury, yes.

12 MR. GREENFIELD: Thank you, Judge. One further

13 thing. There is reference by the witness to sending some

14 matters to Utah for analysis. I think I heard that.

15 THE COURT: That's what I heard.

16 MR. GREENFIELD: I don't think we've ever gotten

17 the results of that.

18 THE COURT: I don't think it was introduced on

19 direct either.

20 MR. GREENFIELD: No. But it was in his report.

21 The last sentence of his report indicates that, I think it's

22 the last sentence.

23 THE COURT: If you have it, you have to turn it

24 over.

25 MR. SNELL: Okay, your Honor.

2741 1 THE COURT: All right.

2 (Adjourned to 9:30 a.m., Wednesday, July 24,

3 1996)

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Ramzi Yousef Trial Transcript Part2

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