Richard Convertino Deposition

VIDEOTAPED DEPOSITION OF RICHARD G. CONVERTINOCONDUCTED ON THURSDAY, APRIL 30, 2009

(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664L.A.D. REPORTING & DIGITAL VIDEOGRAPHY

Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

---------------------------------x

RICHARD CONVERTINO, )

Plaintiff, )

v. ) Civil Action

U.S. DEPARTMENT OF JUSTICE, et ) No.04-00236

al., ) (RCL)

Defendants. )

---------------------------------x

Videotaped Deposition of RICHARD G. CONVERTINO

Washington, D.C.

Thursday, April 30, 2009

9:24 a.m.

Job No.: 1-154367

Pages: 1 - 269

Reported By: Lee A. Bursten, RPR

DA000030

Case 1:04-cv-00236-RCL Document 176-8 Filed 07/12/10 Page 1 of 32



3 (Pages 6 to 9)

Page 6

108:59:52 P R O C E E D I N G S

209:24:36 THE VIDEOGRAPHER: Here begins tape

309:24:38 number 1 in the deposition of Richard G.

409:24:44 Convertino, in the matter of Richard Convertino

509:24:46 versus U.S. Department of Justice et al., pending

609:24:50 in the U.S. District Court for the District of

709:24:52 Columbia, case number 04-236. Today's date is

809:24:56 April 30th, 2009. The time is 9:24 a.m. The video

909:25:02 operator is Scott Forman of L.A.D. Reporting.

1009:25:06 This deposition is taking place at the

1109:25:08 U.S. Department of Justice, 20 Massachusetts Avenue

1209:25:12 Northwest, Washington, D.C. Would counsel identify

1309:25:14 themselves and state whom they represent.

1409:25:16 MR. SMITH: Jeffrey Smith for the United

1509:25:18 States Department of Justice.

1609:25:22 MR. RISNER: Scott Risner for the

1709:25:24 Department of Justice.

1809:25:26 MR. KOHN: Stephen M. Kohn, K-O-H-N, for

1909:25:30 Mr. Convertino.

2009:25:32 MS. FERBER: Lenore M. Ferber for


2209:25:36 MR. KOHN: The law clerks should identify

Page 7

109:25:38 themselves for the record, from my firm.

209:25:40 MS. GELB: Rachel Gelb for


409:25:44 MS. LIM: Katbora Lim for Mr. Convertino

509:25:48 too.

609:25:48 MR. SMITH: We have a paralegal, Peter

709:25:52 Fu, from the Department of Justice.

809:25:52 THE VIDEOGRAPHER: The reporter is Lee

909:25:54 Bursten of L.A.D. Reporting. I will now swear in

1009:25:56 the witness.

1109:25:58 RICHARD G. CONVERTINO

1209:26:06 having been duly sworn, testified as follows:

1309:26:06 EXAMINATION BY COUNSEL FOR DEFENDANTS

14 BY MR. SMITH:

1509:26:06 Q Good morning, Mr. Convertino.

1609:26:08 A Good morning, sir.

1709:26:10 Q Do you understand that you're here today

1809:26:12 to testify for discovery in the lawsuit of

1909:26:14 Convertino versus the United States Department of

2009:26:20 Justice?

2109:26:20 A Yes. Yes. For discovery...

2209:26:24 Q You understand you're here to give

Page 8

109:26:26 testimony for that case?

209:26:26 A Yes. Yes, sir.

309:26:28 Q And you understand that you're under

409:26:30 oath?

509:26:30 A Yes, sir.

609:26:32 Q Have you ever been deposed in a civil

709:26:32 case before?

809:26:34 A I have not.

909:26:34 Q Have you ever taken a civil deposition?

1009:26:36 I know you're an attorney. As an attorney have you

1109:26:40 ever taken a civil deposition?

1209:26:42 A Yes, I have. Yes.

1309:26:44 Q How many?

1409:26:44 A One.

1509:26:46 Q Was that in Mr. Morningstar's case?

1609:26:48 A It was, yes.

1709:26:48 Q So you have a general familiarity with

1809:26:50 how depositions are conducted?

1909:26:52 A Generally.

2009:26:54 Q And you also attended some depositions

2109:26:56 last week in this case?

2209:26:56 A I have, yes.

Page 9

109:26:58 Q So you understand that there's a court

209:27:02 reporter, he'll be taking down your answers.

309:27:04 A Yes, sir.

409:27:04 Q And even though we have a videographer,

509:27:06 we still need to have oral communication between

609:27:10 the two of us, not a shake of the head or something

709:27:12 like that.

809:27:12 A I understand.

909:27:16 Q And I'm going to ask that you wait until

1009:27:18 I finish my questions, and I will do my best to

1109:27:22 wait until you finish your answers, so that we

1209:27:24 don't talk over each other and we have a clean

1309:27:26 record.

1409:27:26 A Yes.

1509:27:26 Q Is that okay?

1609:27:28 A Yes, sir.

1709:27:30 Q Do you know of any reason why you might

1809:27:32 not be able to testify fully and truthfully today?

1909:27:34 A No, sir.

2009:27:34 Q Are you taking any medication that could

2109:27:38 affect your ability to testify truthfully or to

2209:27:40 affect your memory?

DA000031




6 (Pages 18 to 21)

Page 18

109:37:30 assigned to work cases in the field.

209:37:34 Q So those are criminal prosecutions

309:37:36 against people who are accused of being part of an

409:37:38 organized crime group?

509:37:40 A Not necessarily. But it's -- they're

609:37:44 criminal cases, criminal investigations that may

709:37:48 evolve into prosecutions. But not always an

809:37:52 organized crime group. A separate component of it

909:38:00 was labor racketeering. So if somebody might have

1009:38:02 been charged with a labor racketeering defense but

1109:38:06 not be a member of an organized crime group.

1209:38:10 Q And how long did you work in this

1309:38:12 section?

1409:38:12 A In the Organized Crime and Racketeering

1509:38:14 Section?

1609:38:14 Q Yes.

1709:38:18 A I left in 19 -- officially I think I took

1809:38:26 a job offer in Detroit in December or November,

1909:38:32 somewhere around there, of 1994. And my family

2009:38:40 moved to Detroit, and before I made the transition,

2109:38:46 there was an attorney who was assigned to a case in

2209:38:50 D.C., which was rare for our section to be assigned

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109:38:54 to a case in D.C. And he left the department. And

209:38:58 so my chief asked if I would fill in, and thought

309:39:04 it would be a plea, and it ended up being a

409:39:06 six-month trial.

509:39:06 Q Your chief here in Washington?

609:39:08 A Yes, Paul Coffey.

709:39:10 Q So you went to Detroit but then you were

809:39:14 detailed back?

909:39:14 A I believe it was -- I didn't leave D.C.

1009:39:20 I lived in a hotel. But I think the pay, that I

1109:39:26 was being paid by -- I was detailed by the U.S.

1209:39:30 Attorney, I think officially, even though I left to

1309:39:32 go to Detroit in July or August of '95.

1409:39:40 Q So that's when you started working

1509:39:42 physically at the U.S. Attorney's Office in

1609:39:44 Detroit?

1709:39:44 A Yes. Summer of '95.

1809:39:48 Q Was there any particular reason why you

1909:39:50 wanted to work in that U.S. Attorney's Office?

2009:39:54 A I applied to several. And I wanted to --

2109:40:00 my first choice was Alexandria, but I didn't get in

2209:40:04 there. And three or four offices in Detroit was

Page 20

109:40:12 the one I felt I knew best, because I was traveling

209:40:16 for -- I think it was a number of years I was going

309:40:18 out there before I moved out there.

409:40:18 Q Why were you going out there before you

509:40:22 moved out there?

609:40:22 A I was working cases assigned from

709:40:26 Washington to Detroit. That was one of the places

809:40:28 that I went.

909:40:28 Q When you joined the office in Detroit,

1009:40:32 were you part of the Strike Force?

1109:40:34 A When I first came on?

1209:40:36 Q Yes.

1309:40:36 A No.

1409:40:36 Q You were just -- or what section were you

1509:40:40 in?

1609:40:40 A I was in the narcotics drug section, drug

1709:40:48 unit.

1809:40:48 Q How long were you in the drug unit?

1909:40:52 A Not long. The reason that -- I went to

2009:40:58 the drug unit, but I was told that I was going to

2109:41:02 be absorbed into the organized crime unit once an

2209:41:04 attorney was moved out. So I knew I was going into

Page 21

109:41:08 the Organized Crime Strike Force, which was also

209:41:12 appealing to me. So I can't recall how long I was

309:41:16 in the drug unit. But it doesn't seem like it was

409:41:18 very long.

509:41:20 Q So you don't remember exactly when you

609:41:24 joined the Strike Force?

709:41:24 A I don't, no.

809:41:24 Q Can you explain what the Strike Force is,

909:41:28 or was at the time you were a member?

1009:41:34 A It used to be an independent unit or

1109:41:38 section that was separate and apart from the U.S.

1209:41:42 Attorney's Office. And it was under the aegis of

1309:41:46 the Criminal Division. So attorneys in Strike

1409:41:52 Forces were paid different, they had different

1509:41:54 amenities. They had cars assigned to the attorneys

1609:41:58 in the Strike Forces. I think it was in 1988

1709:42:02 then-Attorney General Thornburgh merged the Strike

1809:42:06 Forces into the U.S. Attorney's Offices.

1909:42:10 But they were still -- Strike Force

2009:42:14 mentality was still that it was not part of the

2109:42:18 U.S. Attorney's Offices, and it was somewhat of

2209:42:24 a -- you know, a rivalry, if you will, between the

DA000032


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7 (Pages 22 to 25)

Page 22

109:42:26 attorneys in the Strike Force and the attorneys in

209:42:30 the office.

309:42:30 Q Who was the head of the Strike Force when

409:42:32 you joined it?

509:42:36 A Keith Corbett.

609:42:38 Q And do you know how long Keith Corbett

709:42:40 remained as the head of the Strike Force?

809:42:44 A When you say "remained" --

909:42:46 Q He's now retired?

1009:42:48 A Yes, I think he is retired.

1109:42:50 Q Do you know how long -- when he stopped

1209:42:52 being the chief of the Strike Force?

1309:42:54 A No.

1409:42:54 Q Was he the chief of the Strike Force for

1509:42:56 the entire time you were a member of the Strike

1609:42:58 Force?

1709:42:58 A Yes.

1809:43:00 Q Was he your immediate supervisor during

1909:43:02 that period?

2009:43:02 A No.

2109:43:04 Q Was he ever your immediate supervisor?

2209:43:08 A No.

Page 23

109:43:08 Q Who was your immediate supervisor when

209:43:10 you joined the Strike Force?

309:43:12 A Walter Kozar was the deputy chief. And

409:43:18 Keith was the chief.

509:43:20 Q And was Mr. Kozar the deputy chief for

609:43:24 the entire time that you were a member of the

709:43:26 Strike Force?

809:43:26 A Yes.

909:43:28 Q Was he your immediate supervisor during

1009:43:30 this period?

1109:43:32 A I'm not quite sure what you mean by that.

1209:43:34 He was the deputy chief, so he would have been in

1309:43:36 the hierarchal set of the Strike Force. He was

1409:43:44 technically my immediate supervisor. But Keith was

1509:43:48 the chief and was a hands-on person.

1609:43:50 Q Okay. Did you receive oral reviews in

1709:43:56 addition to written reviews, or was it only written

1809:43:56 reviews?

1909:44:00 A I don't recall oral reviews. I mean, if

2009:44:04 it was a part of the formal review process, is that

2109:44:08 what you mean?

2209:44:08 Q Yes.

Page 24

109:44:08 A As a part of the formal -- probably I was

209:44:14 a part of it.

309:44:14 Q Do you remember who signed your reviews,

409:44:20 as --

509:44:20 A I think Walter would have signed them. I

609:44:22 know Keith and Alan Gershel.

709:44:28 Q And what was Mr. Gershel's position?

809:44:30 A He had different positions when I was

909:44:30 there. I think when I came he was the -- I think

1009:44:36 Alan was the acting U.S. Attorney, I think. I

1109:44:44 think Alan hired me. I think he was always the

1209:44:48 first Assistant U.S. Attorney. And Criminal

1309:44:52 Division chief. He had both roles until September

1409:44:58 of 2003, and then he became the Criminal Division

1509:45:02 chief.

1609:45:12 Q While you were at the Strike Force, did

1709:45:14 the Strike Force have any reporting requirements to

1809:45:18 Washington that were different than the U.S.

1909:45:20 Attorney's Office in general?

2009:45:20 A Yes.

2109:45:22 Q What were those requirements?

2209:45:24 A The Strike Force attorneys, depending on

Page 25

109:45:30 the type of case, if it were a labor case, would

209:45:34 submit proposed indictments to the labor

309:45:36 racketeering section. If it were a RICO, it would

409:45:40 go to the RICO section. And they would always

509:45:46 review indictments. I can't even -- I don't know

609:45:50 if the U.S. attorneys, if the Strike Force

709:45:52 attorneys would even give or have the U.S.

809:45:56 attorneys review their proposed indictments.

909:46:06 When I was traveling out there, I don't

1009:46:08 recall that they were doing that.

1109:46:08 Q In your experience did the people in

1209:46:10 Washington who reviewed the indictments sometimes

1309:46:12 give comments that were incorporated?

1409:46:16 A Yes.

1509:46:18 Q Did they ever in your experience tell the

1609:46:20 Strike Force that they couldn't bring an indictment

1709:46:24 or they didn't think they should?

1809:46:26 A No. Not in my experience.

1909:46:42 Q Did you personally ever have any problems

2009:46:44 with the reporting requirements to Washington?

2109:46:46 A What do you mean, problems with the

2209:46:48 reporting requirements?

DA000033




8 (Pages 26 to 29)

Page 26

109:46:48 Q I mean was there any concern or tension

209:46:52 with regard to an indictment that you sent over

309:46:52 there? Strike that. Did you ever have -- just

409:47:02 strike that. When you were at the U.S. Attorney's

509:47:12 Office, did you have a general understanding of the

609:47:14 office policies and procedures?

709:47:18 A In Detroit?

809:47:20 Q Yes.

909:47:20 A The office policies and procedures were

1009:47:22 never -- I don't recall ever having a manual or

1109:47:30 given any copies of any information or attending

1209:47:34 any briefings or seminars or anything like that.

1309:47:38 So I guess the -- what I came to know as the office

1409:47:44 policies and procedures were what the working

1509:47:46 policies and procedures were.

1609:47:48 Q And that was based on -- and what you

1709:47:50 came to know was based on your practice and

1809:47:54 experience there?

1909:47:58 A Yes, there, yes, including the time that

2009:48:02 I was not a member of the office but traveling to

2109:48:04 the office.

2209:48:10 Q Can you tell me briefly your

Page 27

109:48:12 understanding of what a Rule 11 plea is?

209:48:14 A A Rule 11 plea is an agreement between

309:48:20 the defendant, putative defendant and the

409:48:22 government pursuant to Federal Rules of Criminal

509:48:26 Procedure Rule 11, which calls for certain -- it's

609:48:30 a contract, is what it is. It calls for the

709:48:36 defendant to do certain things and the government

809:48:38 to do certain things.

909:48:38 Q And what normally -- what types of things

1009:48:40 would a defendant be called upon to do in a Rule 11

1109:48:42 plea? Cooperate in other cases, or --

1209:48:46 A It depends. If it's a cooperation

1309:48:48 agreement, then yes, cooperate is certainly one of

1409:48:50 them. The Rule 11s from the office were -- had

1509:48:56 things like requirement for a polygraph. It would

1609:49:02 say what the sentencing guidelines were. It would

1709:49:06 say what the -- it would have the factual basis for

1809:49:12 the plea. It would be detailed in the Rule 11 plea

1909:49:18 agreement.

2009:49:22 Q What was your understanding of the policy

2109:49:26 for who needed to approve a rule 11 plea agreement?

2209:49:32 A My understanding of the policy in

Page 28

109:49:36 Detroit?

209:49:36 Q Yes.

309:49:38 A Was that Rule 11 plea agreements were

409:49:44 subject to approval by the chief of the section or

509:49:48 the unit.

609:49:50 Q And in your case that would have been

709:49:54 Mr. Corbett?

809:49:54 A Mr. Corbett.

909:49:58 Q Can you explain briefly your

1009:50:00 understanding of a 5K1.1 motion?

1109:50:04 A It's a downward departure based upon

1209:50:12 cooperation that's incorporated into the Rule 11

1309:50:14 plea agreement. It's a presentencing downward

1409:50:18 departure as opposed to a post sentencing Rule 35

1509:50:22 downward departure.

1609:50:24 Q As a downward departure on the sentencing

1709:50:26 guidelines chart, is that what you mean by a

1809:50:30 downward departure?

1909:50:30 A It doesn't have to be on the sentencing

2009:50:32 guidelines chart. But a downward departure in the

2109:50:36 agreed-upon sentence or the max or the range.

2209:50:40 Q And what was your understanding on the

Page 29

109:50:44 policy of who needed to approve 5K1.1 motions?

209:50:50 A You're asking me about my understanding

309:50:52 of the policy. I can tell you I've never seen a

409:50:58 policy on the procedures. And I'm not aware to

509:51:04 this day if there is a written policy in the

609:51:08 Detroit office on the procedures. But typically

709:51:10 what would happen is the Rule 11s and whatever

809:51:16 downward departure would go to the unit chief,

909:51:18 which would then be disseminated to Alan Gershel.

1009:51:24 Q In his role as criminal chief?

1109:51:26 A Criminal chief or first assistant. I'm

1209:51:30 not sure.

1309:51:30 Q Were you ever aware of a time that

1409:51:34 Mr. Gershel declined to approve or rejected a

1509:51:38 proposed 5K1.1 motion?

1609:51:42 A At any period of time?

1709:51:44 Q Any period of time while you were there.

1809:51:46 A No.

1909:51:50 Q Was it --

2009:51:52 A You're asking me if I'm personally aware

2109:51:54 of that?

2209:51:54 Q Yes.

DA000034




9 (Pages 30 to 33)

Page 30

109:51:54 A No, I'm not.

209:51:56 Q Are you aware of it through hearsay?

309:51:58 A I'm not.

409:52:02 Q Are you aware of any policy that would

509:52:04 have required that such motions be made in writing

609:52:06 as opposed to orally before the Court?

709:52:08 A No.

809:52:08 Q How would one get Mr. Gershel's approval

909:52:12 if one were going to do an oral motion as opposed

1009:52:16 to a written motion?

1109:52:16 A Ask him.

1209:52:20 Q Are you telling me to ask him?

1309:52:20 A No.

1409:52:22 Q You would ask him orally?

1509:52:24 A Yes.

1609:52:24 Q One would ask him orally.

1709:52:28 A You could ask him orally. You could

1809:52:30 propose it in an e-mail. It was very informal.

1909:52:40 Q Did you, aside from Marwan Farhat, did

2009:52:46 you ever make oral 5K1.1 motions while you were a

2109:52:50 prosecutor?

2209:52:52 A Well, you're always making an oral motion

Page 31

109:52:56 for a downward departure.

209:52:58 Q But wouldn't you submit something in

309:53:00 writing most of the time?

409:53:02 A Oh, separate and apart from that?

509:53:04 Q Yes.

609:53:08 A I can't recall. I don't know.

709:53:10 Q Okay. Was there a rule of thumb or

809:53:18 policy regarding how much of a departure a

909:53:22 defendant would get for cooperation?

1009:53:26 A I'm not aware of any policy.

1109:53:28 Q What about a rule of thumb?

1209:53:30 A Rule of thumb, generally speaking, I

1309:53:38 think a three-level downward departure was as a

1409:53:42 rule of thumb the typical downward departure, it

1509:53:50 was three levels.

1609:53:50 Q Have you ever heard --

1709:53:52 A I'm sorry. And we were talking about a

1809:53:54 5K1.1 downward departure as opposed to --

1909:53:58 Q Yes. Have you ever heard anyone say that

2009:54:06 as a general rule the most a departure someone

2109:54:10 should get is 50 percent?

2209:54:10 A No.

Page 32

109:54:10 Q You never heard that?

209:54:12 A I have not. I know several instances

309:54:16 where that's not true.

409:54:20 Q Could you give me those instances that

509:54:22 you're aware of?

609:54:26 A Well, Sammy Gravano was -- pled to the 19

709:54:38 homicides and got a five-year sentence in return

809:54:46 for his cooperation, as an example.

909:54:48 Q Do you know what office prosecuted

1009:54:50 Mr. Gravano?

1109:54:52 A Southern District of New York, I think it

1209:54:54 was.

1309:54:54 Q Is that the person known as Sammy the

1409:54:58 Bull?

1509:54:58 A Sammy the Bull.

1609:55:00 Q When you were at the U.S. Attorney's

1709:55:02 Office, were you aware of a component of Justice

1809:55:06 called the Office of Professional Responsibility?

1909:55:08 A Yes.

2009:55:12 Q And were you aware that an attorney's

2109:55:20 conduct could be referred to that office for

2209:55:22 investigation?

Page 33

109:55:24 A Yes.

209:55:26 Q Did you ever make such a referral?

309:55:30 A Did I ever refer another attorney to OPR?

409:55:34 Q Yes.

509:55:34 A No, I did not.

609:55:36 Q Aside from the referral that's at issue

709:55:40 in this case, did you ever know of any OPR

809:55:44 referrals that were made while you were at the U.S.

909:55:46 Attorney's Office? Did you ever know, like "I know

1009:55:48 that there was a referral on him"?

1109:55:54 A Any attorney at the U.S. Attorney's

1209:55:56 Office getting referred to OPR?

1309:55:58 Q Yes.

1409:56:04 A I don't recall any.

1509:56:06 Q Were you ever the subject of an OPR

1609:56:08 referral to your knowledge prior to the one that

1709:56:12 Mr. Collins sent?

1809:56:14 A Yes.

1909:56:14 Q And what was that?

2009:56:16 A It was when I was in main Justice, in the

2109:56:22 Organized Crime Section. I was working a case

2209:56:26 along with -- in conjunction with Dick DeLonis,

DA000035




10 (Pages 34 to 37)

Page 34

109:56:28 Richard DeLonis, who was an AUSA, I think is still

209:56:34 in AUSA. And we were referred to OPR I think in

309:56:40 1993. I think.

409:56:42 Q And who made the referral, if you know?

509:56:44 A John Dowd.

609:56:46 Q And who is he?

709:56:48 A An attorney. He was with a big law firm

809:56:54 here in D.C., I think Akin Gump, I think, at the

909:56:58 time.

1009:56:58 Q And did he represent a defendant in a

1109:57:00 case?

1209:57:00 A Yes.

1309:57:00 Q And what did he claim that you had done

1409:57:02 that was unprofessional?

1509:57:04 A As I recall he claimed we shredded

1609:57:06 documents. That's the only one that I can recall

1709:57:12 right now. But it was -- he withdrew it.

1809:57:20 Q Did you ever find out why he withdrew it?

1909:57:24 A Yes. I found out why he withdrew it.

2009:57:32 He -- there were several counts that were dismissed

2109:57:34 by the judge, it was tried in Port Huron, Michigan,

2209:57:40 and the defendant was charged with money

Page 35

109:57:44 laundering. I think it was ITAR wire fraud, I

209:57:52 think. But the main component of the indictment

309:57:56 was the money laundering, which were dismissed

409:57:58 prior to trial.

509:58:00 As I recall, the judge, Judge DeMazio,

609:58:04 didn't think money laundering was appropriate,

709:58:06 because it wasn't a drug case. So they were

809:58:08 dismissed, and after -- Asher Shapiro was

909:58:16 acquitted, but the money laundering count still

1009:58:18 remained viable for appeal. And so I wanted to

1109:58:20 appeal. And John Dowd, then he filed the OPR.

1209:58:26 I wasn't allowed to pursue the appeal on

1309:58:30 the dismissed counts. OPR began an investigation,

1409:58:34 found it to be meritless, and prior to the

1509:58:36 conclusion of it, he withdrew it. And then I

1609:58:40 sought to have -- grieve Mr. Dowd.

1709:58:48 Q To whom?

1809:58:50 A For a meritless -- the D.C. bar. But I

1909:58:54 wasn't allowed to do that.

2009:58:56 Q Who did not allow you to do that?

2109:58:58 A Paul Coffey was the chief, said no.

2209:59:02 Q He was your boss?

Page 36

109:59:04 A Yes.

209:59:06 Q In your experience, is it common for

309:59:10 defense attorneys to make claims that prosecutors

409:59:14 acted improperly in order to gain tactical

509:59:20 advantage in the case?

609:59:22 A Yes, it is.

709:59:26 Q Not for that reason, but as a defense

809:59:28 attorney, have you ever made claims that a

909:59:30 prosecutor has acted improperly?

1009:59:36 A I would have liked to, but have not. As

1109:59:46 a result of this, as a result of this leak, and

1209:59:48 what it's done to my career, every time I go into

1309:59:52 court, every time I face a prosecutor, I get

1409:59:56 allegations of impropriety or misconduct.

1510:00:00 Prosecutors tell me, "I know about you." I'm

1610:00:04 treated differently in courts by the judges. So

1710:00:06 those are kind of freebies for them.

1810:00:12 And it's difficult for me to respond

1910:00:14 because of what was going on with all this.

2010:00:18 Q Okay. I do want to ask you about that,

2110:00:20 but I want to get to it a little later, if that's

2210:00:24 okay. Did you have any problems with the way the

Page 37

110:00:30 OPR handled that earlier complaint, the one that

210:00:34 was eventually withdrawn?

310:00:34 A No.

410:00:40 Q When you were at the Department of

510:00:42 Justice, were you aware of what the standard was

610:00:44 for conduct to be referred to OPR?

710:00:48 A No.

810:00:50 Q Were you familiar with the United States

910:00:54 Attorney's Manual when you were an Assistant United

1010:00:56 States Attorney?

1110:00:56 A I'm familiar with what it is, and I'm

1210:00:58 familiar with portions -- or was familiar with

1310:01:00 portions of it. I think it was nine volumes, you

1410:01:06 know, each volume was fairly thick.

1510:01:10 Q Did you consider it to be a resource that

1610:01:12 one could look at if he needed the answer to a

1710:01:14 question about DOJ policies?

1810:01:22 A No.

1910:01:24 Q Why not?

2010:01:26 A I was not aware, I'm still not aware, if

2110:01:32 DOJ policies are included in the U.S. Attorney's

2210:01:36 Manual.

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11 (Pages 38 to 41)

Page 38

110:01:36 Q Okay.

210:01:36 A I think the only portion of that manual

310:01:40 that I'm familiar with, that I've looked at, is

410:01:46 chapter 9, which encompasses the Criminal Division

510:01:54 procedures or general guidelines, I think. But not

610:01:58 the policies of the department. If they're -- they

710:02:02 may be in the U.S. Attorney's Manual. I'm not

810:02:02 aware if they are or aren't.

910:02:06 Q Did you have an understanding of what the

1010:02:08 general purpose of the manual was?

1110:02:18 A I had a general understanding of what the

1210:02:18 purpose of the portion of the manual that I was

1310:02:22 concerned with was.

1410:02:24 Q Okay. What was --

1510:02:26 A Which was the chapter I referred to.

1610:02:26 Q What was the general purpose of that

1710:02:30 chapter?

1810:02:30 A It had general -- it had case law, it had

1910:02:38 descriptive guidelines regarding how to proceed,

2010:02:46 for instance if a witness asserts a fifth amendment

2110:02:48 privilege prior to going to the grand jury, or the

2210:02:50 general guidelines for Brady, it had a section on

Page 39

110:02:56 that. It had a section on everything from witness

210:03:00 interviews to I think Rule 11.

310:03:04 Q Did you consider it to be authoritative

410:03:08 on the topics that you just discussed?

510:03:10 A No.

610:03:10 Q Why not?

710:03:18 A Authoritative how? Legally

810:03:20 authoritative? Legally binding?

910:03:22 Q Binding as a matter of DOJ policy, not

1010:03:24 necessarily in court.

1110:03:30 A Because I know it wasn't in court,

1210:03:30 because many times a defense attorney would raise

1310:03:34 issues from the U.S. Attorney's Manual, and it

1410:03:36 would be discounted by a judge. And that would be

1510:03:40 the response. It's just a general guideline. It's

1610:03:44 not a directive. So I assume the same. That's how

1710:03:46 I viewed it.

1810:03:48 Q You viewed it as a general guideline but

1910:03:50 not a directive?

2010:03:52 A Well, I mean, I never referred to it as

2110:03:58 dispositive. I never had to. I never felt, I

2210:04:00 needed to know the answer to this particular

Page 40

110:04:02 question, I should refer to the U.S. Attorney's

210:04:06 Manual. I never did that. I never was told to do

310:04:10 that, I never was suggested to do that. And I

410:04:12 didn't know of any other AUSA or trial attorney in

510:04:16 the department who did that.

610:04:18 Q If you were unclear about how to handle

710:04:22 something related to your job, would you have asked

810:04:26 another AUSA, or how would you have gone about

910:04:28 clarifying that?

1010:04:34 A That's such a broad question. If I were

1110:04:38 unclear about how to handle the leave issue, I

1210:04:40 would ask my secretary. If I were unclear about

1310:04:44 how to handle -- how to charge a case, I would --

1410:04:50 the person I would talk to would be Walter Kozar.

1510:04:52 If I weren't clear -- so it depends on what the

1610:04:54 issue or the particular matter is.

1710:04:58 Q How many AUSAs were in the Strike Force

1810:05:02 when you were a member?

1910:05:10 A Keith Corbett was the chief. Walter

2010:05:12 Kozar was the deputy chief. Jim Wozena, whose name

2110:05:18 I can't begin to spell. Dave Morris. Straus, Eric

2210:05:26 Straus. Richard DeLonis was there for a short time

Page 41

110:05:32 after I came to the U.S. Attorney's Office. And

210:05:36 me. And I don't think that I was a member of the

310:05:40 Strike Force at any time when Richard DeLonis was.

410:05:44 So I think that's the -- what would that be, four,

510:05:48 five, six attorneys.

610:05:52 Q Going back to OPR referrals for a second,

710:05:56 were you aware, at the time that you worked in main

810:06:00 Justice and at the time you worked at the U.S.

910:06:02 Attorney's Office, that OPR referrals were supposed

1010:06:06 to remain confidential?

1110:06:06 A Yes.

1210:06:06 Q What was the source of your awareness of

1310:06:08 that?

1410:06:08 A Common sense.

1510:06:16 Q Were you aware of any policies or

1610:06:18 practices regarding line prosecutors dealing with

1710:06:24 Congress or congressional staffs?

1810:06:26 A No. You're talking about when I was a

1910:06:30 member of the -- when I was in the Department of

2010:06:34 Justice?

2110:06:34 Q Yes.

2210:06:36 A No.

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Page 58

110:24:18 A The quotations, it was my voice.

210:24:20 Q Right.

310:24:22 A Whether it was taken out of context or

410:24:24 not, I would have to listen to it again. I think I

510:24:32 listened to it, portions of it, when it came out, a

610:24:38 week or so after it came out. But I didn't listen

710:24:44 to it to determine whether it was or wasn't out of

810:24:46 context. I know some of the things I heard were

910:24:48 out of context. But I don't recall specifically my

1010:24:52 voice.

1110:24:52 Q Can you tell me what you remember being

1210:24:56 out of context?

1310:25:00 A Well, I recall that one of the defense

1410:25:04 attorneys was quoted in a very unfavorable

1510:25:12 statement about me, negative statement that I

1610:25:16 thought was not true at all. And so maybe that's

1710:25:22 what I'm referring to when I say "out of context."

1810:25:24 It didn't have the whole picture.

1910:25:26 Q Do you remember the name of that defense

2010:25:28 attorney?

2110:25:28 A I think it was Thomas.

2210:25:30 Q Do you remember his first name?

Page 59

110:25:32 A Jim Thomas.

210:25:34 Q Do you remember what individual Jim

310:25:38 Thomas might have represented against you, if any?

410:25:44 A I think he represented Ahmed Hannan.

510:25:52 Q Could you very generally give me your

610:25:58 understanding of what the wrongdoing is that you've

710:26:04 alleged in your complaint, what is it you believe

810:26:06 the Department of Justice did to you that was

910:26:08 wrong?

1010:26:10 MR. KOHN: And I'm just going to object,

1110:26:12 as much as it calls for a legal conclusion. The

1210:26:14 witness can answer.

1310:26:16 THE WITNESS: I don't think that the

1410:26:18 Department of Justice did anything to me that was

1510:26:20 wrong. I think that the Department of Justice is

1610:26:26 one of the finest institutions in the world, whose

1710:26:32 principles and ideals are to be lauded and

1810:26:38 followed. And it's the greatest place an attorney

1910:26:40 can work. So I don't think anyone -- or the

2010:26:44 Department of Justice did anything to me.

2110:26:48 I think that the people within the

2210:26:48 Department of Justice who were in positions of

Page 60

110:26:54 authority, that they abused, concocted a series of

210:27:00 allegations in an attempt to discredit me and hurt

310:27:06 me, and then, instead of allowing me the process,

410:27:12 like as you cited, the first OPR referral that was

510:27:18 raised earlier by an attorney, I was able to sit

610:27:22 down with investigators and be interviewed, I was

710:27:26 able to refer witnesses to those investigators,

810:27:30 those investigators were responsible, followed up,

910:27:32 interviewed several people, everyone who had any

1010:27:38 ability to be involved in the case. And they

1110:27:40 determined that it was meritless.

1210:27:42 In this case, I didn't have that

1310:27:44 opportunity because the people who gathered the

1410:27:50 information were reckless in gathering it,

1510:27:54 purposeful in what they gathered, didn't check the

1610:27:56 facts, didn't have any means to go to a credible

1710:28:02 third disinterested party and present the facts,

1810:28:06 because they leaked it to a reporter who put it on

1910:28:08 the front page of a newspaper, giving me absolutely

2010:28:12 no ability to respond fairly.

2110:28:20 From that point on, those allegations

2210:28:22 became facts. Much in the same way that you heard

Page 61

110:28:26 Jonathan Tukel testify that perception is reality

210:28:32 last week, and which was memorialized in a memo by

310:28:36 Keith Corbett. So once they did that, purposefully

410:28:40 did that, then they achieved their goal, which was

510:28:44 to prevent me from any further career at the

610:28:52 department, ruined my reputation, and destroyed any

710:28:54 credibility I had.

810:28:54 BY MR. SMITH:

910:28:54 Q Thank you. Do you have any understanding

1010:28:56 of who the individuals were that did this?

1110:29:02 A Do I have any understanding of it?

1210:29:04 Q Yes.

1310:29:06 A I certainly have an opinion about who did

1410:29:08 it.

1510:29:08 Q Okay. What is your opinion about who did

1610:29:12 it?

1710:29:12 A I believe that based upon the

1810:29:16 circumstantial inferences, which are pretty strong,

1910:29:20 that there were a series of people who were

2010:29:24 involved in seeing the confidential referral which

2110:29:32 should not have been. There was no need for that

2210:29:34 many people to review it. But I think that

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Page 62

110:29:38 Jonathan Tukel, Eric Straus, William Sauget, and

210:29:46 Jeffrey Collins all had a hand in the dissemination

310:29:52 of that confidential information.

410:29:54 And I think that the person who actually

510:30:02 had the control and did it was Jonathan Tukel,

610:30:04 based upon information he shared with me in a

710:30:08 meeting and what was placed in the article.

810:30:16 Q I'm going to ask you about that, but not

910:30:20 right this second.

1010:30:22 A All right.

1110:30:22 Q What about Alan Gershel, do you have any

1210:30:24 reason to believe Mr. Gershel acted improperly with

1310:30:28 regards to any of these events?

1410:30:30 A What events?

1510:30:32 Q The events you just talked about, your

1610:30:36 description of what you believe the wrongdoing was

1710:30:38 in this case. Do you believe Mr. Gershel was part

1810:30:42 of any of that wrongdoing?

1910:30:44 A I think that Alan Gershel is a longtime

2010:30:48 bureaucrat who has had many positions effectively,

2110:30:54 and was not going to get in anyone's way. I don't

2210:31:00 think he was actively a part of it. I don't think

Page 63

110:31:02 he did anything proactive. But I certainly think

210:31:08 that he allowed things to occur that he knew were

310:31:12 improper. I don't think he leaked it. I think

410:31:14 when he says he didn't do it, knowing Alan Gershel,

510:31:18 I don't think he would do it. But I think he knows

610:31:22 who did it.

710:31:24 Q What about Keith Corbett, do you believe

810:31:26 that he had any role in these events where he acted

910:31:30 improperly?

1010:31:30 A You're talking about leaking the

1110:31:32 information?

1210:31:32 Q About anything to do with compiling the

1310:31:36 OPR, any of the things that you just testified

1410:31:40 about.

1510:31:42 A There is a memo that I saw last week

1610:31:52 that -- where Tukel indicated that my

1710:31:56 trustworthiness was called into question by Keith

1810:31:58 Corbett and that Corbett gave me a written

1910:32:04 directive not to take action without his specific

2010:32:06 approval, words to that effect. And I had never

2110:32:10 received that. Keith Corbett certainly didn't give

2210:32:14 that to me.

Page 64

110:32:14 And I think in Tukel's -- I don't know

210:32:18 what document it was, I think it was one of the --

310:32:22 I think it might have been the November referral or

410:32:24 the November draft, said that he had a conversation

510:32:28 with Corbett where Corbett had some doubts about my

610:32:34 trustworthiness, and that in fact Corbett sent him

710:32:36 a memo to that effect. And as I recall, there was

810:32:42 some doubt in Tukel's mind based upon his

910:32:44 recollection of whether Corbett actually gave me

1010:32:46 that. I think that's what he put in his memo.

1110:32:50 And Keith Corbett never gave me that.

1210:32:52 Q Did he ever orally give you instructions

1310:32:56 to that effect?

1410:32:56 A No. Nor did he ever, nor do I believe

1510:33:04 would ever doubt my trustworthiness or ability to

1610:33:08 pursue an investigation honestly and with

1710:33:12 integrity.

1810:33:20 Q Switching gears, to your knowledge when

1910:33:24 did Marwan Farhat come to the attention of Federal

2010:33:28 law enforcement?

2110:33:30 A I don't know.

2210:33:30 Q When did he come to your attention?

Page 65

110:33:40 A I don't know specifically. I remember it

210:33:44 was around October or November of 2001. But I

310:33:56 believe he was incarcerated in I believe May of

410:34:06 that year. I think.

510:34:06 Q Do you have an understanding as to why he

610:34:08 was incarcerated at that time?

710:34:12 A I have an understanding, yes.

810:34:14 Q What is it?

910:34:14 A A narcotics case.

1010:34:18 Q And do you have an understanding of what

1110:34:20 he did regarding the narcotics? Was he a drug

1210:34:24 dealer? Was he something else?

1310:34:26 A I don't know. I mean, I didn't --

1410:34:30 haven't reviewed those documents in years.

1510:34:34 Q When you first became aware of him, was

1610:34:38 he already a source for the government?

1710:34:46 A I don't know. I don't know if he was

1810:34:48 opened up at the time. I became aware of him. He

1910:34:52 came to my attention from an FBI agent who told me

2010:34:56 that there was a witness who was incarcerated, I

2110:35:00 believe it was at MILAN, FCI MILAN, and had

2210:35:06 information regarding terrorism or

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Page 70

110:40:32 was an open source. And I know he was promised

210:40:34 confidentiality. He was promised

310:40:38 confidentiality -- as a matter of fact he has

410:40:42 family, I remember him telling us that he had

510:40:46 family in Lebanon, and that he was worried about

610:40:50 information that he gave or would give, prior to

710:40:52 giving it, regarding Hezbollah, because he worried

810:40:56 and was concerned for his family.

910:40:58 And I remember a specific promise being

1010:41:00 given to him by both the FBI agent and then me

1110:41:06 regarding the necessity to maintain his

1210:41:08 confidentiality out of fear for his life and his

1310:41:12 family in Lebanon.

1410:41:14 Q Do you know whether he was himself

1510:41:16 affiliated with Hezbollah in any way?

1610:41:20 A Do I know? I have no -- I don't believe

1710:41:22 so. I think that -- I don't think there's any

1810:41:26 evidence whatever that he was affiliated with

1910:41:28 Hezbollah. I've seen it written; when it was, I

2010:41:36 thought it was another specious, unsupported

2110:41:40 allegation for improper purposes. There's no good

2210:41:46 reason, even if he were, which I don't believe he

Page 71

110:41:48 was, to put that in any public document.

210:41:54 I heard an explanation, I think somebody

310:42:02 told me, when I pressed the issue, how do you --

410:42:06 how can you make this assertion that he's an

510:42:08 associate or affiliate of Hezbollah, I was told by

610:42:14 maybe Tukel or Straus that he had -- that there was

710:42:18 a flag in his apartment when they conducted a

810:42:22 search warrant, therefore he's Hezbollah.

910:42:28 Q A Hezbollah flag?

1010:42:28 A I think so. That's my recollection.

1110:42:30 Q Did he ever discuss it with you, did he

1210:42:34 ever deny being affiliated with Hezbollah to you?

1310:42:36 A Yes. Specifically. Specifically after

1410:42:46 the Morford memorandum was filed. He specifically

1510:42:58 was most upset, of everything after his name was

1610:43:02 leaked, that he was affiliated with Hezbollah,

1710:43:06 because he assumed that that was a very dangerous

1810:43:08 thing to put out in the public.

1910:43:12 Q When you say the Morford memorandum, just

2010:43:14 for clarification, you're talking about a brief

2110:43:18 that was filed in the Koubriti case in which the

2210:43:22 government asked for the convictions to be set

Page 72

110:43:24 aside, is that accurate? Or are you talking about

210:43:26 something else?

310:43:32 A We're talking about the same thing. I

410:43:34 just don't know specifically what they asked for.

510:43:36 Q Okay. That's fine.

610:43:36 A But it was in I think September of 2004.

710:43:46 A 60-page filing.

810:43:52 Q I've seen it. Other than what you talked

910:43:56 about, the meetings that you had -- not you, that

1010:44:00 the government had with Marwan Farhat, are you

1110:44:04 aware of other assistance that Farhat provided to

1210:44:06 the government?

1310:44:08 A Yes.

1410:44:10 Q What else did he do?

1510:44:12 A I can't tell you all that he did, because

1610:44:16 he did it for -- he was giving information to

1710:44:20 several different people. But I know that Kevin

1810:44:24 Tyus -- I know Farhat complained to me and to Kevin

1910:44:30 Tyus and to Bob Pertuso about repeated -- he had

2010:44:36 repeated complaints, and they were that Bob Pertuso

2110:44:40 would task Marwan Farhat to do something, Kevin

2210:44:46 Tyus would task Marwan Farhat to do something, and

Page 73

110:44:48 he was being -- you know, according to him, he was

210:44:52 working 24 hours a day.

310:44:54 Kevin Tyus's interest was

410:44:58 narcotics-related, gang-related, street crime. And

510:45:02 he would tell Farhat to go to bars or go wherever

610:45:08 that information could be rooted out. And Bob

710:45:12 Pertuso was interested in pursuing

810:45:16 terrorism-related incidents or information, and he

910:45:20 was seeking information in particular about -- at

1010:45:24 one point about a case that developed and became --

1110:45:28 culminated in the return of an indictment of a

1210:45:32 number of people that Farhat gave information on.

1310:45:36 Q Do you have any knowledge as to how

1410:45:38 Farhat was being compensated by the government

1510:45:40 monetarily? As opposed to through, you know,

1610:45:44 consideration and other matters.

1710:45:44 A He was paid money.

1810:45:46 Q Do you know how much?

1910:45:48 A I don't know how much. Those are

2010:45:52 certainly recorded, and there's a long paper trail.

2110:46:00 So if you have documents that I can review, I can

2210:46:02 tell you.

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20 (Pages 74 to 77)

Page 74

110:46:04 Q No, that's okay. I just want to know

210:46:06 your understanding.

310:46:08 A My understanding is he was paid.

410:46:10 Q Is it your understanding that he was paid

510:46:14 in the same way that, you know, other confidential

610:46:18 sources and informants are paid, or was he given a

710:46:22 better or worse deal? Do you have any

810:46:24 understanding of that?

910:46:24 A No. Better or worse deal? I mean, when

1010:46:28 you're talking about something like that, there's

1110:46:34 so many variables, so many -- I don't know how to

1210:46:36 answer that question. I don't know if his -- how

1310:46:40 you would say better or worse. I don't have any

1410:46:42 way to determine that.

1510:46:44 Q To your knowledge was Farhat ever

1610:46:48 terminated by the FBI as a confidential informant?

1710:46:54 A He wanted to be. We had a meeting about

1810:47:00 it with -- Salem Salmey was his attorney, I think

1910:47:06 that's how his name is pronounced. Farhat had

2010:47:10 concerns about Pertuso, and what Pertuso was asking

2110:47:16 him to do, and the amount of work he was asking him

2210:47:18 to do, and the promises that he believed were not

Page 75

110:47:22 being kept by Bob Pertuso.

210:47:24 So we had a meeting. Keith Corbett,

310:47:30 Salem Salmey, Marwan Farhat, Bob Cares, and me, I

410:47:36 think that was all who was there. And Farhat said

510:47:40 he did not want to be an active source for Bob

610:47:46 Pertuso. My recollection is Cares said okay, and

710:47:54 he was closed. Then my understanding is he was

810:47:56 reopened.

910:47:58 Q Do you have an understanding as to why he

1010:47:58 was reopened?

1110:48:00 A To be utilized.

1210:48:04 Q Was there anything specific that he knew

1310:48:06 or could do that required him to be reopened?

1410:48:10 A I don't know. I don't know the answer to

1510:48:12 that.

1610:48:18 Q Was this meeting that you just described

1710:48:20 that included Bob Cares as well as other people,

1810:48:24 was it related at all to Bob Cares's desire to use

1910:48:28 Marwan Farhat as a witness in a case?

2010:48:30 A No.

2110:48:30 Q Was there ever a time when Bob Cares

2210:48:32 desired to use Marwan Farhat as a witness in a

Page 76

110:48:36 case?

210:48:36 A Yes, he wanted to use him as -- wanted

310:48:38 him to testify.

410:48:40 Q And do you have a general understanding

510:48:42 of what he would have testified about?

610:48:44 A No. I think there is a series of e-mails

710:48:48 that memorialize this. And if you have them, it

810:48:54 would certainly clarify the issue. But it was very

910:48:58 generally put. RICO, I think, a RICO

1010:49:02 investigation, and we want him to testify.

1110:49:06 Q Do you recall informing Cares that Marwan

1210:49:10 Farhat had a deal in which he would not be required

1310:49:12 to testify?

1410:49:12 A Yes. No, would not be required to have

1510:49:18 his identity divulged.

1610:49:20 Q Which testimony necessarily would.

1710:49:22 A It does not.

1810:49:24 Q Sorry?

1910:49:24 A No. That's not accurate.

2010:49:26 Q Okay. Can you explain how I was

2110:49:28 inaccurate?

2210:49:28 A For instance, grand jury testimony

Page 77

110:49:30 wouldn't necessarily divulge the identity of a

210:49:32 witness. So that's not what he wanted. He was

310:49:38 asking -- my understanding is he was asking for

410:49:42 testimony regarding information that he had already

510:49:44 provided that led to a point in time where he would

610:49:48 have to be used publicly as a witness. That was my

710:49:56 understanding.

810:49:56 Q It was also your understanding that this

910:49:58 was not consistent with the agreement the

1010:50:00 government had with Marwan Farhat?

1110:50:02 A Yes.

1210:50:04 Q And you informed Bob Cares of that?

1310:50:04 A I did.

1410:50:06 Q Who had made this agreement with Farhat,

1510:50:08 if you know?

1610:50:08 A What agreement?

1710:50:10 Q The agreement -- well, I believe you just

1810:50:14 said that having him testify publicly was

1910:50:16 inconsistent with his agreement with the

2010:50:18 government. Is that fair to say?

2110:50:20 A Yes.

2210:50:20 Q Who made that agreement with which the

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Page 78

110:50:22 testimony would be inconsistent? Was it the FBI?

210:50:26 A Yes. It was the FBI. And it was me.

310:50:28 And it was during the time when I -- I think I

410:50:32 reflected that earlier, when we were in one of the

510:50:36 debriefings, and he was about to give information

610:50:40 or hesitated in giving information because he

710:50:42 wasn't -- he was concerned about his safety. And

810:50:48 it was at that point in time that Bob Pertuso said,

910:50:52 you'll not testify, your name will not be

1010:50:54 disclosed, your identity will not be disclosed.

1110:50:58 And I seconded that. I made that promise

1210:51:00 as well to him.

1310:51:02 Q Was anyone else in the U.S. Attorney's

1410:51:04 Office aware of this promise contemporaneously or

1510:51:08 shortly thereafter, the promise that Pertuso made

1610:51:10 that you seconded?

1710:51:16 A I don't know anyone who dealt with Farhat

1810:51:18 who wasn't aware of that. I know that there's been

1910:51:20 some people now or there have been people who say

2010:51:24 that they weren't aware of that, that they weren't

2110:51:26 aware he was an informant or a confidential

2210:51:30 informant. That is patently untrue. Keith Corbett

Page 79

110:51:36 knew he was a confidential informant. And we had a

210:51:40 commitment, therefore the government had a

310:51:40 commitment, that he would not be publicly

410:51:44 disclosed.

510:51:44 I'm assuming that the FBI supervisors had

610:51:48 the same understanding. I'm assuming that Pertuso

710:51:52 reiterated that. But it was my understanding that

810:51:56 offer, if you will, was made to him prior to the

910:52:00 time that I met him.

1010:52:02 Q By the FBI?

1110:52:02 A That's what I assumed.

1210:52:04 Q Okay. Do you know whether Alan Gershel

1310:52:08 was aware, prior to Bob Cares asking about it, do

1410:52:14 you know whether Alan Gershel was aware of Farhat's

1510:52:16 agreement in which his identity would remain

1610:52:18 completely confidential?

1710:52:20 A I don't know. I don't know what he was

1810:52:20 aware of.

1910:52:22 Q Do you know whether Bob Cares was aware

2010:52:24 of it before he asked you about him testifying?

2110:52:26 A Yes.

2210:52:28 Q He was aware?

Page 80

110:52:28 A Before he asked me in the e-mail?

210:52:32 Q Yes.

310:52:36 A Yes. Yes, he was aware of it. As I

410:52:38 recall, there's an e-mail that indicates the

510:52:44 conversation we had about Farhat prior to that

610:52:50 e-mail, that he said, we want him to testify, is he

710:52:54 still cooperating, or words to that effect.

810:52:58 Q You're talking about he said this orally?

910:53:00 A Yes.

1010:53:00 Q And he said this to you?

1110:53:02 A He asked me.

1210:53:04 Q And how did you respond?

1310:53:04 A What I just told you, that the agreement

1410:53:08 with Marwan Farhat is that his identity would not

1510:53:12 be disclosed. It's not an uncommon thing, when

1610:53:18 that kind of commitment is made, it's honored,

1710:53:22 unless there's a specific reason not to honor it,

1810:53:26 and if there is, it's immediately brought up and

1910:53:34 aired out.

2010:53:34 As you can see from the e-mails, the

2110:53:36 e-mail traffic, it was clear, at least it was clear

2210:53:40 to me, and I made clear to everyone else who was

Page 81

110:53:44 involved, that he was a confidential informant and

210:53:46 that his identity was not to be disclosed. And no

310:53:50 one took issue with it, said we want to talk about

410:53:54 it, asked any of the questions that you are asking.

510:54:00 It was -- that representation was made and it was

610:54:06 accepted as it should have been.

710:54:08 Q Okay.

810:54:10 MR. KOHN: If this is a place we could

910:54:12 take a quick break, a 10-minute break.

1010:54:14 MR. SMITH: That's fine.

1110:54:16 THE VIDEOGRAPHER: This is the end of

1210:54:16 tape 1 in the deposition of Mr. Convertino. We're

1310:54:20 going off the record. The time is 10:54 a.m.

1410:54:24 (Recess.)

1511:18:30 THE VIDEOGRAPHER: This marks the

1611:18:36 beginning of tape 2 in the deposition of

1711:18:38 Mr. Convertino. We're back on the record. The

1811:18:40 time is 11:18 a.m.

1911:18:46 BY MR. SMITH:

2011:18:46 Q To your knowledge, when did Mr. Farhat

2111:18:50 begin receiving payments from the Federal

2211:18:52 government? Do you know?

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Page 82

111:18:52 A No.

211:18:52 Q Do you know when he stopped receiving

311:18:54 payments from the Federal government?

411:18:58 A No, I don't.

511:19:06 Q What kind of assistance did Mr. Farhat

611:19:08 provide to the Koubriti prosecution team?

711:19:26 A None.

811:19:26 Q He didn't provide any assistance to the

911:19:28 Koubriti team?

1011:19:30 A When you say "Koubriti team," you mean

1111:19:32 did he provide information that was used in the

1211:19:34 trial, or that assisted in the trial?

1311:19:36 Q Did he assist you in your trial

1411:19:38 preparation in any way?

1511:19:38 A Yes.

1611:19:38 Q How did he assist you?

1711:19:40 A He was -- we had an enormous problem

1811:19:46 getting translators. We had, during the course of

1911:19:52 the search warrant in the Koubriti case -- to refer

2011:20:04 to the trial as that, "Koubriti case" -- there was

2111:20:10 a series of tapes, 105 tapes, that were

2211:20:12 encapsulated in or incorporated in a box. And then

Page 83

111:20:20 there were two loose tapes. And there were -- and

211:20:26 they were cassette tapes. And we could not get

311:20:30 anyone to translate those tapes.

411:20:32 So we didn't know if they were children's

511:20:36 songs, or informational, or useful or not useful.

611:20:44 And there came a time, I think we went through, I

711:20:48 don't know, there was a translator who was from the

811:20:50 Air Force who was -- came for a day. There were

911:20:58 two FBI translators, three FBI translators who

1011:21:00 either wouldn't or couldn't commit the time to

1111:21:02 translating the tapes.

1211:21:04 And so we had these tapes. They were

1311:21:08 sent to Washington. And they sat there for months

1411:21:12 and months. No one knew what was on them. So

1511:21:16 during the course of one of Farhat's debriefings,

1611:21:22 he was -- I think he was being debriefed, I think

1711:21:26 by Pertuso down the hall. I went in when I saw he

1811:21:30 was there, and I said, when you're through, come

1911:21:32 down and see me. And he did. Across from my

2011:21:38 office was a very small locked room that required a

2111:21:44 keypunch to get into the U.S. Attorney's Office.

2211:21:50 The other door led to the elevator area,

Page 84

111:21:54 outside of the office. I sat him in there, I gave

211:21:58 him a tape, I pulled a tape out of the box

311:22:06 randomly, had the muffs there and the recorder,

411:22:14 told him that if he needed to leave or whatever,

511:22:18 needed something, that he could call Ms. Bruni's

611:22:18 extension, she was down the hall, or knock on the

711:22:22 door, I was across the hall.

811:22:24 In 10 or 15 minutes when he was in there,

911:22:26 he banged on the door. I went across the hall,

1011:22:32 opened up the door, and he had a concerned look on

1111:22:36 his face, and he said, "These are bad." "What's

1211:22:42 bad?" "These tapes." So what I had him do was, in

1311:22:48 order to get the FBI to dedicate a translator so we

1411:22:52 could translate -- so we could first transcribe,

1511:22:56 then translate the tapes, Farhat gave a summary of

1611:23:04 what he heard on the tapes.

1711:23:08 And he would spot the tapes. The

1811:23:10 summaries that he gave were given, a copy was given

1911:23:14 at one point to Mike Thomas. And it was -- and the

2011:23:22 names were, I was told, entered into the FBI

2111:23:28 indices. And we maintained a copy. Once we had --

2211:23:36 Marwan would write in English the -- what he was

Page 85

111:23:40 hearing in summary fashion. And the purpose of

211:23:44 doing that was so I could get a translator. And we

311:23:50 did, we got Alex Dagastani.

411:23:56 And he was detailed full time to the

511:23:58 Koubriti case, fairly close to the trial. At some

611:24:04 point in time, there was an expert in terrorism and

711:24:10 counterterrorism who out of the goodness of his

811:24:16 heart was assisting us in the case. He saw some of

911:24:22 the Farhat summaries, and wanted to get a copy of

1011:24:30 those. We couldn't type out the summaries because

1111:24:32 we didn't have the resources.

1211:24:34 So he said he would take the summaries,

1311:24:38 give them to his secretary, who was in either

1411:24:42 Northern Virginia or California, he had two

1511:24:46 offices, and that they would -- she, his secretary,

1611:24:50 would type out the English summaries of what Farhat

1711:24:56 interpreted the tapes to be. So to me personally,

1811:25:02 on the case, it was an enormous help, because we

1911:25:06 couldn't get government translators to do what had

2011:25:12 been sitting there and needed to be done for months

2111:25:16 and months and months.

2211:25:18 The information that I gleaned from the

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Page 90

111:30:40 Q That's okay.

211:30:40 A If you're asking me -- yes, I do.

311:30:44 Q And is that a group that was headed by

411:30:46 Steve Emerson at the time?

511:30:48 A Yes.

611:30:48 Q And do you know how Farhat came to be

711:30:52 employed by the Investigative Project?

811:30:54 A Yes.

911:30:56 Q Can you tell me how?

1011:30:58 A He -- I was contacted by someone from the

1111:31:02 Investigative Project, Denny, Steven Denny, I don't

1211:31:14 know the spelling, who was a -- either a retired or

1311:31:22 former FBI agent, I believe out of the New Jersey

1411:31:26 district, FBI office in Newark. And he came to

1511:31:30 work for Emerson as someone who -- my understanding

1611:31:40 was at the time he was someone who handled

1711:31:42 informants for Stephen Emerson's Investigative

1811:31:44 Project.

1911:31:44 And Emerson used informants when he

2011:31:50 produced a documentary called "Jihad in America,"

2111:31:56 and then wrote a book where he would have

2211:31:58 individuals go into various places and attend

Page 91

111:32:02 lectures and film them or record them. And at some

211:32:08 point in time, Steven Emerson was providing -- oh,

311:32:12 I know, it was when I came to D.C. originally to

411:32:18 talk to someone in the then Terrorism and Violent

511:32:26 Crime Section. And it was Jeffrey Breinholt who

611:32:30 was I think the acting chief at the time. That

711:32:34 would have been I think probably 2002, sometime

811:32:40 maybe in February or March, somewhere around there.

911:32:44 I came here to meet with Breinholt.

1011:32:48 Breinholt introduced me to Steven Emerson. And

1111:32:52 Breinholt had in his office a whole stack of

1211:32:56 Emerson's books, and Emerson, you know -- Breinholt

1311:33:02 gave me a book and introduced me to Emerson.

1411:33:04 Emerson then was providing background assistance,

1511:33:08 he would e-mail me things about different terrorist

1611:33:16 groups like Wahabis or Salafist or whatever it may

1711:33:20 be. He had information about particular cells that

1811:33:24 might be in Detroit or Windsor, Ontario.

1911:33:30 That's how I became aware of the

2011:33:32 Investigative Project. At some point Steve Denny

2111:33:34 came to Detroit with Evan Kohlman, who was a law

2211:33:46 student at the University of Pennsylvania, and

Page 92

111:33:50 worked for Emerson. And they met Farhat at that

211:33:54 point in time and wanted Farhat to work in some

311:34:00 capacity for the Investigative Project.

411:34:04 Q And did you act as a liaison between the

511:34:08 Investigative Project and Farhat?

611:34:10 A Yes.

711:34:12 Q And were you compensated for this work?

811:34:14 A No.

911:34:14 Q Have you ever been compensated by the

1011:34:16 Investigative Project for anything?

1111:34:18 A No.

1211:34:22 Q Did you ever get money from Farhat for

1311:34:24 anything?

1411:34:24 A No.

1511:34:26 Q Did you ever seek a job with the

1611:34:28 Investigative Project?

1711:34:28 A Yes.

1811:34:28 Q What was the circumstances of that? What

1911:34:30 type of job were you looking for?

2011:34:32 A Any job. Any job just about anywhere at

2111:34:38 the time. I was under siege by my former office,

2211:34:42 who was -- who indicated that they were going to

Page 93

111:34:52 cause me serious damage somehow or another,

211:34:56 reputational, professional. It was clear to me

311:35:00 that I had no future in that office. And I had

411:35:04 nowhere to go. So I was actively looking for a

511:35:08 job.

611:35:08 Q When was this? You said "at that time,"

711:35:14 but I don't think you said when.

811:35:16 A I think it was in October of 2003.

911:35:18 Q So in October of 2003, you were actively

1011:35:22 looking for a job, and one of the places you looked

1111:35:24 was the Investigative Project, is that correct?

1211:35:26 A Well, yes, in sum and substance. Emerson

1311:35:32 asked me. Emerson was aware of the circumstances

1411:35:36 surrounding the Department of Justice, because what

1511:35:40 the Investigative Project does is they work

1611:35:42 closely, or did, they worked closely with the

1711:35:46 Department of Justice. In particular at the time

1811:35:52 they were providing information to the Terrorism

1911:35:54 and Violent Crime Section in the FBI.

2011:35:56 So when Farhat, when they approached

2111:36:00 Farhat about working for them or providing

2211:36:02 information for them in an undercover capacity,

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Page 94

111:36:10 what I asked was that Farhat, whatever notes Farhat

211:36:14 prepares, whatever -- if there was a recording

311:36:18 where -- I recall him going out to a university

411:36:22 setting in California, southern California, to

511:36:24 attend what Emerson described as a radical

611:36:30 fundamentalist meeting where there were individuals

711:36:34 who were giving speeches to college age students.

811:36:40 Farhat participated, Farhat was provided a

911:36:42 recording device by Emerson or Emerson's -- the

1011:36:46 Investigative Project.

1111:36:48 Farhat, I think he was there two nights

1211:36:50 or three nights. He would go back to the hotel

1311:36:52 room. He would write his impressions of the

1411:36:58 meeting. He would transcribe his recollections.

1511:37:00 And then he would take a copy of that and the

1611:37:02 recording device and -- the original and the

1711:37:06 recording device, give it to Emerson, and we would

1811:37:12 get a copy, which went to the FBI.

1911:37:14 Q Do you have any knowledge of how much

2011:37:14 Farhat was being paid by the Investigative Project?

2111:37:16 A No. But again, that information is

2211:37:24 available. They didn't just pay him cash. They

Page 95

111:37:28 paid him -- I remember that they were -- they

211:37:32 wanted his information, social security number,

311:37:34 whatever identifying information, so he was paid by

411:37:38 check.

511:37:38 Q Did they ever send the check to you and

611:37:42 ask you to give it to him?

711:37:44 A They would send the check to the U.S.

811:37:46 Attorney's Office on occasion, because he didn't

911:37:48 want it coming to his house, and Ms. Bruni would

1011:37:52 give it to him.

1111:37:56 Q Did you ever get a job offer from the

1211:37:58 Investigative Project?

1311:38:02 A I was talking, negotiating, talking to

1411:38:06 them, talking to Mr. Emerson, and I don't know if I

1511:38:14 ever received an offer from him. He told me at one

1611:38:20 point that it was wasn't viable, wasn't feasible

1711:38:26 because of his relationship with the Department of

1811:38:30 Justice.

1911:38:30 Q Did you have an understanding what he

2011:38:32 meant by that?

2111:38:32 A Yes.

2211:38:34 Q Could you explain it, please?

Page 96

111:38:34 A He was working and providing information

211:38:36 to the United States Department of Justice

311:38:40 regarding intel and information that he derived

411:38:44 through the use of his private sources, and they

511:38:48 would share information. And hiring me was not

611:38:54 something that would be conducive to that, since

711:38:56 the people who were most opposed to me and were

811:39:04 coming at me were the same people that he had a

911:39:08 professional relationship with.

1011:39:08 Q So he never explained -- or he never

1111:39:12 represented that there were issues with his funding

1211:39:16 or anything like that that would have precluded you

1311:39:18 from working there, it was only because of your

1411:39:20 relationship with other people in the government?

1511:39:24 A He told me he had issues with funding.

1611:39:30 He did say that. My understanding is that he says

1711:39:40 that all the time. He may have had issues with

1811:39:44 funding that dealt with whether or not to hire

1911:39:46 someone, that could very well be.

2011:39:50 Q Now, you handled Marwan Farhat's plea and

2111:39:54 sentencing, is that correct?

2211:39:56 A Yes.

Page 97

111:39:56 Q And why was it handled by you, a Strike

211:40:00 Force attorney, when his plea was for drug

311:40:02 offenses?

411:40:04 A Because the case was transferred to me.

511:40:06 Q And why was it transferred to you?

611:40:10 A Because Farhat, the information that Bob

711:40:12 Pertuso said Farhat would provide prior to Farhat

811:40:16 being talked to by me -- I don't know about by

911:40:22 Pertuso, when was the first time he spoke to him --

1011:40:26 was that he had information regarding organizations

1111:40:30 in or around Dearborn and Detroit that had

1211:40:34 affiliations and connections with Hamas and

1311:40:36 Hezbollah.

1411:40:38 Now, this was in -- before 9/11. We were

1511:40:48 working a case, I had an investigation of

1611:40:52 individuals in Dearborn that was a terrorism case.

1711:40:58 It was Hezbollah, I believe was the organization.

1811:41:02 And at some point, what the case was, was segmented

1911:41:10 out throughout the office. And for instance there

2011:41:14 was a tobacco, allegations about tobacco smuggling,

2111:41:26 or tax fraud, tax stamp fraud on cigarettes in the

2211:41:30 general crimes unit. There was a financial

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Page 98

111:41:32 component in the economic crimes unit. And there

211:41:34 were a couple of more different allegations in

311:41:38 different units that were disparate.

411:41:40 And so what Corbett wanted to do was

511:41:42 bring them in, into the Organized Crime Strike

611:41:46 Force, and look at the case as a traditional RICO

711:41:50 case. That was what was being done by some of the

811:41:54 bigger offices, more sophisticated offices like the

911:41:58 Southern District of New York, I think around that

1011:42:00 time in July they formed a new -- well, I don't

1111:42:08 know if it was a new unit, but it was called the

1211:42:10 Organized Crime Strike Force and Terrorism Unit.

1311:42:14 So that's what -- I think what Corbett

1411:42:18 wanted to do. And that's what I wanted them to do.

1511:42:22 I thought that was a good idea. That was in July

1611:42:24 and August of 2001. So that was the purpose of

1711:42:30 bringing that informant, if you will, under the

1811:42:36 umbrella of the Strike Force, of the Strike Force

1911:42:38 case. It was called Bathwater.

2011:42:40 Q And were you the lead attorney on the

2111:42:42 Bathwater case, the case that was called Bathwater?

2211:42:48 A Tell me what you mean by "lead attorney."

Page 99

111:42:54 Because Keith Corbett was on the case. He was the

211:42:58 attorney who was most senior.

311:43:04 Q Who did -- if you can say, who did the

411:43:08 most work?

511:43:08 A Me.

611:43:08 Q And what other attorneys were on the case

711:43:10 for the government, if any?

811:43:12 A Keith.

911:43:12 Q Just the two of you?

1011:43:14 A Well, initially the case came in to Eric

1111:43:24 Straus. I remember Straus declined the case. And

1211:43:28 the agents came into my office and asked me if I

1311:43:32 would take a look the case. They thought it was a

1411:43:34 good case, and they said Straus didn't want it.

1511:43:38 Q Is it common for agents to go to another

1611:43:42 AUSA if one AUSA declines the case, in your

1711:43:46 experience?

1811:43:46 A Yes, it's common for agents who believe

1911:43:52 they have a good case to think that the attorneys

2011:43:54 who are assigned to the case are not diligently

2111:43:56 working their case. And to be unhappy with the

2211:44:04 progress of the case or the resources and services

Page 100

111:44:08 that they're getting from the AUSA or the trial

211:44:12 attorney, that's very common. And so if an

311:44:14 attorney or if an agent believes that a case is a

411:44:20 viable case but an attorney or a particular

511:44:22 attorney isn't going to pursue it, then it's

611:44:26 certainly not unheard of that they go to another

711:44:30 attorney, another AUSA.

811:44:34 Q So you accepted the case that Mr. Straus

911:44:36 had declined?

1011:44:36 A Yes. Mr. Corbett accepted the case. But

1111:44:40 I certainly went to him and said I think this is --

1211:44:46 has good potential.

1311:44:50 Q Do you know if the procedure that you

1411:44:50 just discussed about agents sometimes being unhappy

1511:44:54 and talking to another AUSA, was that -- is that

1611:44:58 standard throughout the department in the U.S.

1711:45:00 Attorney's Offices, or is that how it operates

1811:45:02 specifically in Detroit?

1911:45:02 A I have no idea. I mean, I have no idea

2011:45:06 how it happens, not only in other offices, but I

2111:45:12 don't have any idea how it happens outside the

2211:45:14 Strike Force. I know it happens, I've been told

Page 101

111:45:22 that, it angers a lot of AUSAs when it happens. So

211:45:26 I know it happens.

311:45:30 Q So did you prepare the plea agreement for

411:45:36 Marwan Farhat?

511:45:40 A You mean the Rule 11?

611:45:42 Q Yes.

711:45:42 A No, I didn't.

811:45:44 Q Who did?

911:45:44 A Ana Bruni.

1011:45:46 Q Was she working under your supervision --

1111:45:48 A Yes.

1211:45:48 Q -- in that project?

1311:45:50 A In --

1411:45:52 Q In the project of putting together this

1511:45:54 Rule 11.

1611:45:56 A In all projects I had to deal with, she

1711:46:00 was under my supervision.

1811:46:00 Q Was it your understanding that you were

1911:46:02 responsible for what was filed in court over your

2011:46:04 name, even if it was prepared by a paralegal or

2111:46:06 secretary?

2211:46:06 A Yes, no question about that. I didn't

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Page 102

111:46:10 mean to intimate anything but that when I said --

211:46:12 you asked me who prepared it.

311:46:14 Q I understand. To your knowledge now,

411:46:28 were there any errors on the Rule 11 plea agreement

511:46:30 that she prepared and you signed?

611:46:32 A I don't know.

711:46:32 Q At that time, were you aware of the

811:46:38 general crimes which Mr. Farhat had been charged

911:46:40 with?

1011:46:40 A Yes.

1111:46:40 Q And do you remember now what he was

1211:46:42 charged with?

1311:46:44 A No, I don't.

1411:46:46 Q But they were drug crimes?

1511:46:46 A Yes. They were -- drug crimes, I don't

1611:46:54 know if they were 21 USC 841, something -- I don't

1711:47:02 recall specifically what it was. So when you say

1811:47:04 "drug crime," is that what you're referring to, a

1911:47:06 Title 21 offense?

2011:47:08 Q I was really referring more generally to

2111:47:10 any crime concerning illegal drugs such as cocaine

2211:47:14 or other --

Page 103

111:47:14 A Yes, that's what he was -- that's what he

211:47:18 was charged with.

311:47:22 Q Now, at the sentencing hearing, do you

411:47:26 recall -- you did the sentencing hearing on behalf

511:47:28 of the government, is that correct?

611:47:28 A I did.

711:47:34 Q Do you recall the judge remarking on the

811:47:38 difference between the sentence that was being

911:47:40 recommended in the plea agreement and the

1011:47:42 guidelines range as calculated in the presentence

1111:47:46 report?

1211:47:46 A No, I don't. I'm sure he did. But I

1311:47:50 don't recall that.

1411:47:50 Q Do you remember that there was a

1511:47:52 difference between those two?

1611:47:54 A The PSI and the --

1711:47:56 Q And the Rule 11.

1811:47:58 A And the Rule 11? I do.

1911:48:00 Q Do you remember that the presentence

2011:48:02 report calculated the guidelines range of being at

2111:48:06 108 to 135 months?

2211:48:08 A No.

Page 104

111:48:08 Q What do you remember?

211:48:10 A I don't remember what it was

311:48:10 specifically. But if you have it, it's -- you

411:48:18 know, it is what it is. I'll take your word for

511:48:22 it.

611:48:22 Q Okay. Do you remember if you were

711:48:26 surprised at the hearing to learn of the difference

811:48:30 between what the presentencing report was

911:48:32 calculating and what the Rule 11 agreement was

1011:48:34 asking for?

1111:48:40 A I don't remember, you know, if I was

1211:48:42 surprised by it. I remember that I didn't -- I

1311:48:50 don't want to say I didn't know what it was,

1411:48:52 because it was probably something that I had in my

1511:48:56 possession prior to that. I didn't focus on it

1611:49:02 until that particular time. So it's information

1711:49:10 that I had, so if -- I can't say that it was new

1811:49:14 information.

1911:49:16 But it was information that I didn't

2011:49:20 focus or concentrate on as I should have done prior

2111:49:24 to going into that sentencing hearing. So I don't

2211:49:28 know if that clarifies.

Page 105

111:49:32 Q To your knowledge, was the Rule 11

211:49:36 agreement approved by Mr. Corbett before it was

311:49:42 filed?

411:49:44 A I don't know. I don't know what

511:49:50 Corbett's recollection is, if he approved it or

611:49:52 not.

711:49:54 Q Do you remember if he signed it?

811:49:58 A I remember the issue being raised in

911:50:04 my -- not the OPR referral, but in some question

1011:50:06 that came up, that he did not sign it. And that

1111:50:10 was the -- I remember the first time realizing that

1211:50:14 there was another signature on it other than mine,

1311:50:18 was at that point.

1411:50:20 Q Do you know whether Mr. Gershel approved

1511:50:22 the Rule 11 plea agreement for Marwan Farhat?

1611:50:26 A Yes.

1711:50:26 Q Yes, you know?

1811:50:28 A I do.

1911:50:28 Q And did he?

2011:50:28 A Yes.

2111:50:30 Q And can you give me the circumstances of

2211:50:32 his approval for it?

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Page 134

112:27:08 plea after the fact, or the level of departure?

212:27:14 A You know, I'm sure he did give me his

312:27:16 opinion on it. He thought it was -- when I told

412:27:18 him what happened regarding the plea, he said you

512:27:26 should have made sure that you had the thing, you

612:27:28 read it, you read the presentence report, you

712:27:32 should have been more careful. He did tell me

812:27:34 that. And I told him, you're absolutely right.

912:27:36 Q Did you mean it when you said "you're

1012:27:40 absolutely right," or were you just saying that

1112:27:42 just because he was your boss?

1212:27:44 A I wouldn't say it if I didn't mean it. I

1312:27:48 meant it when I told him, and I mean it when I say

1412:27:50 it now.

1512:27:50 Q Okay. Is it correct?

1612:27:52 A I'm sorry to interrupt you.

1712:27:54 Q Go ahead.

1812:27:54 A There was something else that was -- that

1912:27:58 I just remembered about that meeting, one of the

2012:28:02 two, maybe in both meetings, when Farhat's name

2112:28:06 came up. John Tukel mentioned Farhat being the

2212:28:16 person who perpetrated a crime against a doctor,

Page 135

112:28:22 Dr. Fayad, a Dearborn physician who was indicted in

212:28:26 the Eastern District of Michigan for health care,

312:28:32 Medicare fraud. Farhat participated in a beating

412:28:36 of the doctor that resulted from a conflict the

512:28:44 doctor had with a local pharmacist. I can't recall

612:28:48 specifically what the dust-up was about.

712:28:52 But Farhat was tasked to beat the doctor.

812:28:56 Farhat did. Farhat, Nageeb Harari, and a third

912:29:04 person whose name I can't recall right now, beat

1012:29:06 the doctor. Tukel told me that Farhat -- used the

1112:29:18 word again, "thug," and he can't be prosecuted.

1212:29:22 And I asked him why not. And he said that I wrote

1312:29:26 a letter that said Farhat can't be prosecuted or

1412:29:30 words to that effect. And I have seen what he's

1512:29:32 referring to or has referred to as a letter, which

1612:29:38 doesn't apply to Marwan Farhat.

1712:29:40 But Farhat, the person who gave the

1812:29:44 information about the doctor beating was Marwan

1912:29:48 Farhat. Marwan Farhat gave the information to us

2012:29:54 in a proffer protected by Kastigar in July -- I'm

2112:29:58 sorry, in I think November of 2001. The

2212:30:06 information that was given was that there was

Page 136

112:30:10 another person who was arrested and was bound over

212:30:16 for trial after a preliminary examination in the

312:30:20 Third Circuit District Court -- Third Circuit Court

412:30:24 in Wayne County for -- I think it was assault with

512:30:28 intent to do great bodily harm.

612:30:32 The doctor had identified the person who

712:30:34 was in custody. Farhat said that person who is in

812:30:38 custody did not participate, wasn't a part of, and

912:30:42 is wrongfully charged with that offense. On

1012:30:48 December 18th, I think, Farhat took a polygraph on

1112:30:52 the issue and passed. And so that person was

1212:30:56 released, and the information about the doctor

1312:31:00 beating was solely from Marwan Farhat, which was

1412:31:06 under the Kastigar agreement.

1512:31:10 The other person, Nageeb al-Harari, fled

1612:31:14 the country. And the third person also fled the

1712:31:16 country. So Farhat was the witness, testified or

1812:31:22 gave information about himself. So I told Tukel

1912:31:26 and I told Cares, if you have information

2012:31:28 independent, charge him. You know where he lives.

2112:31:32 He's being paid by the FBI. Arrest him and charge

2212:31:36 him. I told Cares that -- I'm sorry, Tukel that on

Page 137

112:31:40 more than one occasion.

212:31:46 Q Okay. Did you in fact send a letter to

312:31:54 the Dearborn police on this issue, telling them

412:32:00 anything about what Farhat had told you, on the

512:32:02 doctor beating issue?

612:32:04 A I don't recall doing that. I've seen a

712:32:10 letter to the Dearborn police that was written by

812:32:16 Bob Pertuso and typed by Ana Bruni, she testified

912:32:24 to after a meeting.

1012:32:24 Q Right.

1112:32:26 A I don't recall that. And the information

1212:32:30 that was testified about by Mr. Tukel was that he

1312:32:34 spoke to an officer by the name of Keifer, and

1412:32:40 Keifer told him information, never spoke to the

1512:32:44 officer who was the recipient of that letter, who

1612:32:48 was the officer in charge of the case.

1712:32:48 Q Do you know this Officer Keifer?

1812:32:50 A I do.

1912:32:56 Q How do you know him?

2012:32:58 A I know him through -- he was detailed to

2112:33:04 the Joint Terrorism Task Force from Dearborn

2212:33:10 Police. I found him to be dishonest and lacking

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Page 162

114:10:32 things we were getting.

214:10:34 Q Did you ever hear that Washington -- that

314:10:36 the people in Washington were frustrated with

414:10:38 you --

514:10:38 A I did.

614:10:38 Q And what did you hear about that?

714:10:42 A I heard that, and I saw that reflected in

814:10:44 communications through -- mostly through Alan

914:10:52 Gershel.

1014:10:52 Q And what did Mr. Gershel tell you about

1114:10:56 the complaints from D.C.?

1214:10:58 A Well, there were several, and they were

1314:11:00 different. And they seemed to be never-ending. At

1414:11:06 one point in time I remember Barry Sabin, when he

1514:11:12 became the chief of the section, he said that we

1614:11:18 weren't giving them -- weren't giving them enough

1714:11:22 deference, we weren't giving them the documents

1814:11:24 they needed, like the indictments, with enough time

1914:11:28 for them to reflect and give their -- have their

2014:11:34 corrections or input.

2114:11:34 But that was not accurate. There were

2214:11:38 times when they just made plain mistakes or

Page 163

114:11:40 misinterpreted. For instance, one time there was

214:11:44 an attorney there, Martha Rubio, sent me a series

314:11:50 of questions in an e-mail, seriatim, 1 through

414:11:54 whatever, 10. I answered the questions in her

514:11:56 original e-mail and resubmitted the e-mail with the

614:12:02 answers. She thought I just re-sent her her

714:12:06 original e-mail, she didn't read the answers in the

814:12:10 e-mail.

914:12:12 And that became a blowup, that I didn't

1014:12:16 answer her e-mail, I just sent it back. Those were

1114:12:18 the types of petty internecine nonsense that would

1214:12:24 go up to very high levels and come back down to my

1314:12:28 level with very stern directives.

1414:12:36 Q And who did the stern directives come

1514:12:38 from?

1614:12:38 A Well, I mean, the -- I can think of an

1714:12:44 e-mail, for instance, when Alan Gershel said

1814:12:46 basically, I'm sick of this, Barry Sabin thinks --

1914:12:52 I think it was to me and Keith. It was the primary

2014:12:54 reason that I really pressed Keith Corbett to come

2114:12:58 on the case, to help me with dealing with the

2214:13:04 people in D.C.

Page 164

114:13:06 When he came on the case, then he was the

214:13:10 person who was dealing with them, and he was more

314:13:12 frustrated than I was. And that's reflected in a

414:13:16 whole series of e-mails and documents that followed

514:13:20 up after the trial. So there was no assistance, no

614:13:26 meaningful assistance. There was -- time after

714:13:30 time, when we asked for things, we didn't get, and

814:13:32 we got things we didn't want or need. The

914:13:34 resources were woefully lacking. We were doing our

1014:13:40 closing argument, and we couldn't get a computer to

1114:13:44 use to put together a PowerPoint presentation.

1214:13:46 So we went out and bought one at Costco,

1314:13:50 and then after the closing, returned it. Mike

1414:13:56 Thomas I think bought a scanner for the closing so

1514:13:58 we could put that together, because we couldn't get

1614:14:00 one. It was a time when -- I know Ana Bruni

1714:14:04 purchased her own copying paper because the machine

1814:14:08 kept jamming on the office paper and she couldn't

1914:14:10 get the right paper. So she went out and bought

2014:14:14 it. She was working almost round the clock without

2114:14:18 being compensated or given comp time or overtime.

2214:14:22 Q She was not given comp time or overtime?

Page 165

114:14:24 A She was, and then they cut it off. But

214:14:26 she continued to do it. So we were working, you

314:14:30 know, seemed like 20-hour days, seven days a week.

414:14:36 Everybody was trying to get it done. There was a

514:14:38 ton of -- discovery was coming in, copies were

614:14:42 requested by -- defense attorneys wanted to come in

714:14:48 and view and copy things. It was very difficult to

814:14:52 manage.

914:14:52 I mean, if you look at -- if you look at

1014:14:54 these e-mails on the people that were cc'd and

1114:15:00 brought into this OPR referral, and you compare

1214:15:04 that, all those people devoting time and effort and

1314:15:06 resources to that as compared with the people we

1414:15:08 had to work on this case, I mean, it's incredible,

1514:15:14 or even the resources that went into the criminal

1614:15:16 case and investigation against me as compared to

1714:15:18 the case or even the investigation of the case by

1814:15:24 Straus and Morford, the agents and the resources

1914:15:28 they had to do that were triple what we had.

2014:15:32 Q Did Jeffrey Collins ever reprimand or

2114:15:36 otherwise criticize you to your face for allegedly

2214:15:40 not keeping Washington informed?

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Page 166

114:15:42 A He reprimanded me. I don't know -- I

214:15:46 don't think those were his words. He called me

314:15:48 into his office, and Keith Corbett into his office,

414:15:52 after the terrorism trial, and Keith thought we

514:15:56 were going to get an award or something. Keith

614:16:00 came out -- he went in first, he came out, and his

714:16:02 face was red, and he looked very upset.

814:16:06 And I said, what happened? And he said,

914:16:08 he's getting rid of the Strike Force. And then I

1014:16:12 went in, and Jeffrey Collins told me that he was

1114:16:18 ordered to reprimand me. And I asked him, by who?

1214:16:22 And he said, Washington. I said, for what? And he

1314:16:26 said, not playing well with others or words to that

1414:16:30 effect, something like that, some comment that got

1514:16:38 his point across but I didn't take very seriously.

1614:16:40 And he said, I can reprimand you any way

1714:16:44 I want, I can do it in writing, I can do it

1814:16:46 verbally. And he said, I'm just doing it verbally.

1914:16:50 I said, okay, thank you. And that was it. But

2014:16:54 see, at that point in time, Mr. Smith, when the

2114:16:58 case was done on June 4th, when the jury came back,

2214:17:02 or June 3rd, on June 4th I was preparing for the

Page 167

114:17:08 next trial, which was the Chris Webber case, pro

214:17:14 basketball player. I wasn't thinking about that

314:17:16 case anymore. I was thinking about the next case.

414:17:18 And the agents on the next case came in,

514:17:20 and we were putting that case together. So it was

614:17:26 a hectic time. That was during the time we were

714:17:28 preparing for Webber, was the Farhat sentencing. I

814:17:34 was done with one, solely focused on the next case.

914:17:38 Q Okay. Did you ever use a phrase similar

1014:17:44 to "blew it out of his ass" in a meeting with Barry

1114:17:50 Sabin?

1214:17:52 A Yes.

1314:17:52 Q Can you explain the context of that?

1414:17:54 A Yes. There was a meeting that occurred,

1514:17:56 I don't remember when, I think it was right up to

1614:17:58 the -- I think it was very close to the beginning

1714:18:00 of the trial, December of '02 or right around

1814:18:12 there. Barry Sabin came in with Joe Capone, and we

1914:18:16 had information through the U.S. Attorney who said

2014:18:18 that they were going to assign -- Washington was

2114:18:24 going to assign an attorney to play an equal part

2214:18:26 in the case.

Page 168

114:18:28 And he sent us Joe Capone, sent to me and

214:18:32 Keith an e-mail saying he was going to be assigned

314:18:36 to the case and he was coming to Detroit. He

414:18:38 didn't. From the first e-mail to the time he came

514:18:40 to Detroit, as I recall, was a few weeks. So he

614:18:44 didn't come in and dig in, nor did he have any

714:18:48 intention to do -- of doing that.

814:18:50 When he first came out with Barry Sabin,

914:18:56 we had a meeting in the U.S. Attorney's Office that

1014:19:00 was called by Barry Sabin. And prior to going into

1114:19:04 the meeting, Keith Corbett and I talked to Alan

1214:19:08 Gershel. Alan pulled us into his office and Alan

1314:19:10 said -- I asked Alan, what is this about? And Alan

1414:19:16 said, a frank and open airing of the issues, or

1514:19:22 words to that effect. I remember him saying it's

1614:19:26 going to be, you know, kind of a no-holds-barred,

1714:19:32 that everybody was there to get -- air out all of

1814:19:36 the difficulties and miscommunications and the

1914:19:38 problems that had occurred up to that point.

2014:19:44 In the meeting, one of the issues that we

2114:19:46 had was -- that I had was, I was having difficulty

2214:19:52 in getting anyone from the appellate section to --

Page 169

114:19:58 I wanted an appellate attorney assigned to the

214:20:02 case. And Alan Gershel asked Dave DeBold, who was

314:20:08 an attorney in the office, to work on the case. He

414:20:10 was not interested in working on the case. It was

514:20:14 hard to get him to help us get done what we wanted

614:20:20 him to help us get done with.

714:20:22 He drafted a part of the conspiracy or --

814:20:26 I can't remember exactly what it was that Dave

914:20:30 DeBold did to assist us.

1014:20:32 Q In the indictment?

1114:20:34 A Yes. But it was something related to the

1214:20:36 indictment and something that he assured Keith and

1314:20:42 me that, you know, was well researched and was a

1414:20:44 viable position. In the meeting, Barry Sabin was

1514:20:54 asking me directly, in a very challenging way,

1614:21:00 where did you get this, whatever the issue was, I

1714:21:04 can't recall, where did you get this theory from or

1814:21:06 how did you develop this theory regarding the

1914:21:10 charging of one of the conspiracies.

2014:21:12 And I told him David DeBold, an attorney

2114:21:16 here in the appellate section, he drafted it. And

2214:21:18 he kept pressing the issue, how did he get it, why

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Page 170

114:21:24 didn't he pass it through me. He was -- he made

214:21:28 his point that he didn't have an opportunity to

314:21:34 sign off on it. It was strictly a territorial

414:21:40 infighting, not a substantive battle that was going

514:21:46 on, again.

614:21:48 And finally at the time, at the point in

714:21:52 time when he kept pressing me, well, where did he

814:21:54 get it from, how did he get it, what did he rely

914:21:58 on, what did he do, I said that to him. It was

1014:22:02 intemperate, it was inappropriate, I apologized for

1114:22:06 doing it, I regretted doing it. I was frustrated.

1214:22:10 And that -- and the U.S. Attorney, I told him

1314:22:14 separately that I apologized as a member of his

1414:22:18 staff for doing that. And then I later apologized

1514:22:22 to Barry Sabin separately for doing that.

1614:22:26 Q Did Mr. Collins at any point express his

1714:22:28 dissatisfaction with your making that comment? To

1814:22:34 you.

1914:22:34 A Well, Barry Sabin was unsure how to

2014:22:44 respond. He didn't say anything. He looked at

2114:22:46 Mr. Collins, Mr. Collins -- and then he kind of

2214:22:48 looked at him again, and then Mr. Collins said to

Page 171

114:22:52 me that was inappropriate or something like that.

214:22:56 And I acknowledged, there was no question it was

314:23:00 inappropriate and unprofessional.

414:23:04 Q How were you informed formally that you

514:23:08 were being removed as trial counsel on the Koubriti

614:23:14 case for purposes of sentencing or whatever?

714:23:16 A I don't know that I was informed

814:23:18 formally.

914:23:18 Q Were you ever told by someone in the

1014:23:20 chain of command such as Mr. Gershel, Mr. Tukel, or

1114:23:24 Mr. Collins?

1214:23:24 A That I was removed?

1314:23:26 Q Yes.

1414:23:26 A I eventually was told by -- I believe it

1514:23:34 was Mr. Collins sent me an e-mail after I pressed

1614:23:40 him as to why. Nobody told me. This would have

1714:23:46 been weeks after, I think, a couple of weeks after

1814:23:48 I was removed. I was told I was removed by -- I

1914:23:56 think I was told I was removed by Jim Brennan, who

2014:24:00 told me he had heard that, that was why Gershel and

2114:24:04 Collins went to the FBI.

2214:24:06 Q But, I mean, how would you know not to

Page 172

114:24:10 keep working on the case if no one in your office

214:24:12 told you you weren't on the case? I don't really

314:24:16 understand. You just heard a rumor you were off

414:24:18 the case. How did you know you really were off the

514:24:20 case?

614:24:20 A Keith Corbett told me.

714:24:22 Q Okay.

814:24:24 A It would have been I think Thursday, the

914:24:30 following Labor Day, Keith told me that "you and I

1014:24:34 are off the case."

1114:24:36 Q Did he tell you who had made the

1214:24:38 decision?

1314:24:46 A I can't recall if he told me that or not.

1414:24:48 I think -- I can't recall if he -- I think he said

1514:24:50 they took us off the case.

1614:24:52 Q Did he tell you the reason why whoever it

1714:24:58 was made the decision to take you and Mr. Corbett

1814:25:00 off the case?

1914:25:02 A Yes, he said contact with the Senate was

2014:25:06 the -- Gershel said was the last straw.

2114:25:10 Q So just to make sure I understand what

2214:25:12 you're saying, he told you that Alan Gershel told

Page 173

114:25:14 him that the contact with the Grassley staffers was

214:25:18 the last straw?

314:25:18 A Someone said that. I thought that

414:25:24 Gershel said that's the last straw.

514:25:26 Q Did -- again, I just want to be clear.

614:25:30 Did Mr. Gershel say that to you, or you heard that

714:25:32 Mr. Gershel said it?

814:25:34 A No. Mr. Gershel -- Mr. Gershel would not

914:25:36 talk to me. I heard that was said. I also was

1014:25:40 told by Keith specifically that Alan Gershel said

1114:25:46 "you" -- me, Convertino -- was off the reservation.

1214:25:52 And he made that clear, that the opinion was -- and

1314:25:56 what that clearly meant to me was that I was

1414:26:04 either -- well, I thought that meant that I was

1514:26:06 giving information, that's how I took it, that was

1614:26:10 harmful to the Department of Justice, to Senate

1714:26:14 staffers.

1814:26:16 Q Do you recall the first time that you

1914:26:20 were contacted by Senate staffers?

2014:26:22 A Yes.

2114:26:22 Q Can you tell me when that was?

2214:26:26 A No. I can tell you it was the Friday --

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Page 174

114:26:32 I think the Friday before Labor Day. I don't

214:26:34 remember what -- I think it was August 28th.

314:26:42 Q That's specific enough, certainly. Is

414:26:42 that in 2003?

514:26:44 A Yes.

614:26:44 Q And were you expected to hear from them?

714:26:48 A No.

814:26:50 Q Did they tell you why they were

914:26:52 contacting you?

1014:26:52 A Yes.

1114:26:52 Q What did they tell you?

1214:26:56 A The first time I received a call was from

1314:27:00 the -- the person identified himself as a Secret

1414:27:06 Service agent. He said, I'm Charlie Bopp with the

1514:27:10 Secret Service. And so that was -- that's an

1614:27:14 important representation to me. A sentence or two

1714:27:18 later he said he was detailed to Grassley's staff,

1814:27:22 the Senate Finance Committee, which meant

1914:27:24 absolutely nothing to me.

2014:27:26 And he told me they were doing a hearing

2114:27:28 or putting information together for a hearing,

2214:27:32 upcoming hearing, regarding identity fraud and --

Page 175

114:27:36 or identity theft and terrorism and how the two

214:27:40 relate. He said they found our case and it was a

314:27:46 paradigm of how that works. And he wanted to know

414:27:50 if they could come out, or they were coming out or

514:27:54 something, they were in the area or whatever he

614:27:56 said, and they wanted to sit down and talk to us

714:28:00 and see some of the evidence.

814:28:04 Q Did the staffers then come to the U.S.

914:28:08 Attorney's Office in Detroit to meet with Hmimssa?

1014:28:12 A No. They didn't.

1114:28:16 Q Did they ever meet with Hmimssa in

1214:28:18 Detroit to your knowledge?

1314:28:18 A They met with Hmimssa, I was told, but it

1414:28:20 wasn't in Detroit. I don't know where Hmimssa was

1514:28:24 being housed.

1614:28:24 Q Do you know who set up that interview

1714:28:28 or -- presumably the staffers didn't find Hmimssa

1814:28:30 on their own. Do you know who put the two

1914:28:34 together?

2014:28:34 A Jim Brennan. I didn't mean to answer

2114:28:36 before you were through. Jim Brennan was the

2214:28:38 person who -- see, Senator Grassley's detailees are

Page 176

114:28:46 Secret Service. So the Secret Service agents,

214:28:52 agent in this case, Charlie Bopp, was dealing with

314:28:54 his counterpart in Detroit, whoever that was,

414:28:58 Secret Service agent.

514:29:00 That Secret Service agent in Detroit was

614:29:02 dealing with the FBI agents in Detroit. So Charlie

714:29:08 Bopp I don't believe ever directly called Jim

814:29:12 Brennan. But the local agent in Detroit called on

914:29:16 behalf of Charlie Bopp. They set up the interview

1014:29:22 with Hmimssa. And I don't know when that was or

1114:29:26 where that was. But it was not in Detroit. I know

1214:29:28 Hmimssa was far from here.

1314:29:30 Q Did anyone from Grassley's staff come to

1414:29:32 the U.S. Attorney's Office in Detroit, to your

1514:29:36 knowledge?

1614:29:36 A Yes.

1714:29:38 Q Why did they come to Detroit?

1814:29:40 A To talk to us, to talk to the agents, and

1914:29:46 to look at evidence, or I'm sorry, exhibits.

2014:29:50 Q To your knowledge, what AUSAs knew they

2114:29:54 were coming beforehand? Was it just you and

2214:29:56 Mr. Corbett?

Page 177

114:30:00 A Yes. I don't know if anyone else new

214:30:02 they were coming or not. Ana Bruni, she took care

314:30:08 of the details. Jim Brennan, Mike Thomas.

414:30:12 Q I was just asking about AUSAs.

514:30:16 A Oh, pardon me.

614:30:16 Q It's okay. At that point when you had

714:30:26 that meeting, did the idea of either you or Hmimssa

814:30:32 testifying before Congress come up?

914:30:34 A No.

1014:30:34 Q Did you have any idea that they would

1114:30:36 want you to testify?

1214:30:38 A No.

1314:30:38 Q When did you first have an idea they

1414:30:40 would want you to testify?

1514:30:48 A Tuesday after Labor Day. I'm using that

1614:30:52 as an anchor on the dates. I don't remember the

1714:30:56 day.

1814:30:56 Q Okay. And did somebody inform you that

1914:30:58 day that they would want you to testify?

2014:31:00 A I received a call from Charlie Bopp. He

2114:31:04 told me Hmimssa was fantastic, he was, you know,

2214:31:08 very informative, well spoken, and detailed, and

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48 (Pages 186 to 189)

Page 186

114:41:14 Q I'm sorry, did or didn't?

214:41:16 A Absolutely did.

314:41:20 Q When did you first learn that David

414:41:24 Ashenfelter was working on an article regarding OPR

514:41:28 allegations made against you?

614:41:32 A January 16th. I'd like to go back and

714:41:36 explain an answer on Butch Jones.

814:41:40 MR. KOHN: No.

914:41:40 THE WITNESS: I want to explain something

1014:41:42 regarding Butch Jones.

1114:41:42 MR. KOHN: Why don't we just take a

1214:41:44 break. I'll say if we need to clarify the record.

1314:41:46 We'll just take --

1414:41:48 THE WITNESS: I'm happy to drive on and

1514:41:50 deal with it later if that's easiest.

1614:41:52 MR. KOHN: Okay.

1714:41:54 BY MR. SMITH:

1814:41:54 Q So January 16th, 2004, you learned for

1914:41:58 the first time that David Ashenfelter was working

2014:42:00 on this article?

2114:42:00 A I did.

2214:42:02 Q And how did you learn that?

Page 187

114:42:04 A He called.

214:42:04 Q Did he speak with you?

314:42:06 A Not the first time. He left a voicemail.

414:42:08 Q Do you still have the recording?

514:42:12 A I personally have the recording? I gave

614:42:18 copy -- I don't think I have it. I'm not sure. I

714:42:22 gave a copy to Mr. Kohn and Mr. Sullivan.

814:42:30 Q So the first time he called he left a

914:42:32 message. Did he call a second time?

1014:42:34 A Yes.

1114:42:34 Q Or did you call him back?

1214:42:36 A Oh. I think we called him back. I

1314:42:40 called Bill Sullivan and I think we called -- I

1414:42:46 think we called him back. But I talked to him

1514:42:50 again.

1614:42:50 Q Were you in Washington at the time, or

1714:42:52 were you --

1814:42:52 A Yes.

1914:42:52 Q -- in Detroit? You were in Washington.

2014:42:56 A Yes.

2114:42:56 Q And were you and Mr. Sullivan together

2214:42:58 when you talked to him? Or were you in a three-way

Page 188

114:43:02 call?

214:43:02 A Three-way call. He was in an office at

314:43:04 Winston & Strawn.

414:43:04 Q At that time was Mr. Sullivan retained as

514:43:08 your attorney at the time of that call?

614:43:08 A Yes.

714:43:08 Q And did you pay him for the time he

814:43:10 spent? On that day, I'm only asking. Not whatever

914:43:14 he's done since.

1014:43:18 A I don't know if I did or didn't. You

1114:43:22 mean pay him for his -- the hours that he put in

1214:43:26 that particular day?

1314:43:26 Q Yes.

1414:43:28 A No. I didn't pay him for that.

1514:43:30 Q Okay. Do you owe him money for that? In

1614:43:32 your understanding.

1714:43:32 A My understanding is that I do owe him --

1814:43:38 well, I don't owe him money. The firm of Winston &

1914:43:44 Strawn.

2014:43:44 Q You owe money for something that happened

2114:43:46 on the 16th of January, or you owe money for

2214:43:48 something else?

Page 189

114:43:48 A Oh, I think it's included in the 16th of

214:43:52 January. I mean, I don't know how to break it out.

314:43:54 They might be able to do that.

414:43:56 Q Okay.

514:43:56 A For expenses or, you know, disbursements.

614:44:02 Q I'd like to know about the content of

714:44:06 your call with David Ashenfelter. How did it

814:44:10 begin? It was the three of you, right, you and

914:44:12 Mr. Sullivan and Mr. Ashenfelter on the phone

1014:44:14 together, correct?

1114:44:16 A At some point.

1214:44:16 Q What do you remember about that call?

1314:44:20 A I remember the purpose of the call was to

1414:44:24 get clarification about whether or not he was going

1514:44:30 to run a story, what the story was going to be

1614:44:34 about. I think his message said I'm going to

1714:44:38 run -- I'm doing a story about your OPR or words to

1814:44:42 that effect, the message. I recall that I -- the

1914:44:48 complaint has the specific verbiage that he used in

2014:44:54 the recorded message, but that he intimated he was

2114:45:00 doing a story about me, about the OPR referral, and

2214:45:06 about the informant, Iran informant, and that was

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49 (Pages 190 to 193)

Page 190

114:45:16 he was going to publish a story the next day.

214:45:18 Q And what did you say to him, if anything?

314:45:22 A I mean -- in the three-way conversation?

414:45:24 Q Yes.

514:45:24 A I tried to persuade him not to run the

614:45:30 name of the source in the story. I also -- so that

714:45:34 was the first thrust that both Bill Sullivan and I

814:45:40 tried to persuade him to consider. And he told us

914:45:46 that he would -- he had to check with his editor or

1014:45:50 words to that effect, and would recontact us with

1114:45:52 an answer on that.

1214:45:56 I told him that if he were to publish any

1314:46:02 information about the OPR referral or any

1414:46:06 information like that that he had, that without

1514:46:10 giving me a fair opportunity to sit down with him

1614:46:14 and go through the allegations and disprove them to

1714:46:16 him, if he prints that, it will be devastating to

1814:46:22 my personal and professional reputation. I made

1914:46:28 that point as strongly as I could.

2014:46:30 Q And how did he respond?

2114:46:32 A He told me when he -- when we talked on

2214:46:40 the phone, he told me that -- he certainly gave me

Page 191

114:46:46 the impression he had the OPR referral, the

214:46:50 document, and that he referred to "Collins said,"

314:46:56 or intimating to me that Collins, he had

414:47:00 conversations with Jeffrey Collins. That's how I

514:47:02 took the conversation.

614:47:04 I was absolutely furious that he even

714:47:12 would consider printing something like that without

814:47:18 giving me a fair opportunity at least to sit down

914:47:20 and go through each and every accusation or

1014:47:26 allegation in a deliberative way and try and show

1114:47:30 him that those were false, misleading, regardless,

1214:47:36 that by printing that, that it was going to be

1314:47:40 absolutely devastating to me personally, my

1414:47:44 reputation as a lawyer, to my family, that once he

1514:47:52 prints it, I'm done.

1614:47:54 And he did not give that consideration.

1714:48:00 Q Did he respond in any way? I mean, to

1814:48:04 your saying that.

1914:48:06 A He told me that he would get back to me

2014:48:08 regarding the informant.

2114:48:12 Q Is it possible when he said Collins says

2214:48:14 this, Collins says this, that he was saying "in the

Page 192

114:48:18 referral Collins says this," as opposed to "I

214:48:20 talked to Collins and Collins said that"?

314:48:22 A I suppose you can interpret it however

414:48:28 you want. I'm telling you how I interpreted it. I

514:48:30 was on the other end of the phone. He either

614:48:34 wanted me to think that or said it in a way that

714:48:38 certainly led me to believe that he had -- that

814:48:42 Collins had talked with him.

914:48:44 Q Okay. Do you recall Mr. Sullivan saying

1014:48:46 anything on the call to Mr. Ashenfelter?

1114:48:50 A I do. He was upset. And he made it

1214:48:58 clear that -- he repeated the same things I was

1314:49:02 saying in a more eloquent way. And he also was

1414:49:06 forceful in his request that the source's name not

1514:49:10 be used.

1614:49:12 Q Did you ever come to know why Ashenfelter

1714:49:18 and/or his editor made an editorial decision to use

1814:49:22 the name of the source?

1914:49:24 A Did I ever come to know...

2014:49:26 Q Do you have any idea why they would print

2114:49:28 the name of the source? I mean, couldn't they have

2214:49:32 written the same article that just said Convertino

Page 193

114:49:36 gave a great deal to a guy, without saying Marwan

214:49:38 Farhat?

314:49:40 A That's what I was saying earlier today.

414:49:42 Q And -- go ahead.

514:49:44 A I saw no justifiable editorial,

614:49:56 journalistic reason other than something that was

714:49:58 meant to cause harm specifically.

814:50:00 Q Do you think that anything you said in

914:50:02 the call with David Ashenfelter could have

1014:50:04 confirmed to him that you were indeed under an OPR

1114:50:08 investigation?

1214:50:10 A No.

1314:50:14 Q Okay.

1414:50:14 A He told me he had an OPR referral. He

1514:50:16 told me he had it. He told me what was -- what the

1614:50:22 specific allegations were. He told me that on the

1714:50:26 telephone. I told him in response that I can

1814:50:30 answer those allegations, you have to give me an

1914:50:34 opportunity, as a human being, you have to give me

2014:50:40 a fair opportunity to respond to this prior to you

2114:50:44 going out and disseminating it, and there will be

2214:50:48 absolutely no opportunity to respond, and it's

DA000054




50 (Pages 194 to 197)

Page 194

114:50:54 over, it's done.

214:50:56 Once he prints that story, whether it's

314:50:58 true, whether it's false, whether it's accurate, it

414:51:00 doesn't matter, it's over. My reputation, my whole

514:51:06 career as an attorney, my whole life, everything

614:51:12 that I tried to build for me and my family was done

714:51:16 when he printed that story.

814:51:24 Q Did you contact Marwan Farhat at any time

914:51:30 after you talked to Ashenfelter but before the

1014:51:32 story ran?

1114:51:32 A Yes.

1214:51:34 Q And what did you tell him?

1314:51:40 A I talked to Mike Thomas first, told Mike

1414:51:46 Thomas to try and get ahold of him, talked to

1514:51:50 Marwan Farhat at some point, and I told him what

1614:51:54 was going to happen. And he was beside himself.

1714:52:02 Q Prior to first hearing from David

1814:52:06 Ashenfelter, had you ever spoken to any other

1914:52:08 reporter about the subject of your OPR referral?

2014:52:16 Had any other reporter said, oh, I know about an

2114:52:20 OPR referral too? Not "too," but --

2214:52:22 A Yes.

Page 195

114:52:24 Q Who did you speak with?

214:52:24 A David Shepardson called me.

314:52:30 Q When was this?

414:52:32 A I don't remember. I remember exactly

514:52:34 where I was, I was on an entrance ramp on Sheldon

614:52:36 Road going off the highway to my house, and he

714:52:40 called me. And so I remember it very clearly,

814:52:42 because it was pretty shocking. He emphasized that

914:52:48 he was not going to write anything. I didn't

1014:52:50 acknowledge anything to him in return. He told me

1114:52:54 what he had. And his words were, it was sleazy.

1214:53:00 Q Sleazy meaning that the person who gave

1314:53:04 it to him was sleazy, or meaning something else?

1414:53:08 A That reporting that kind of story in his

1514:53:10 mind or in his -- you know, I mean, it was -- I

1614:53:16 don't think he was serious. I think he was trying

1714:53:18 to curry favor. But that's what he said.

1814:53:22 Q Did you give him any information about

1914:53:24 anything else on that call that was unrelated?

2014:53:26 A No.

2114:53:28 Q Do you have any understanding as to why

2214:53:30 he called you? Was he trying to get something from

Page 196

114:53:32 you?

214:53:34 A I don't know why he called me. He called

314:53:36 me and told me that specific thing.

414:53:38 Q I assume he didn't tell you where he got

514:53:40 it from?

614:53:40 A I didn't --

714:53:42 Q The information.

814:53:42 A I didn't -- I mean, to me it was clear

914:53:46 where he got it from. It was clear where he got it

1014:53:50 from, it was clear where Ashenfelter got it from.

1114:53:52 It was such a small universe of individuals who had

1214:53:54 that specific information, that there was no

1314:53:58 question in my mind, talking about the end of

1414:54:02 January 2003, so it's the culmination --

1514:54:06 Q Do you mean the end of December 2003?

1614:54:08 A Pardon me, that's what I meant to say,

1714:54:10 thank you. The picture was clear what was going

1814:54:14 on. There was -- there were a series of events

1914:54:18 that I never thought representatives of the Justice

2014:54:22 Department would do, and they did. And it would

2114:54:26 shock me. And then another -- they would do

2214:54:28 something else that I never thought they would do

Page 197

114:54:30 that shocked me. And this kept occurring.

214:54:34 So that was another notch, when

314:54:36 Shepardson told me "I have this OPR," it shocked

414:54:42 the hell out of me.

514:54:44 Q Prior to speaking with Mr. Shepardson,

614:54:46 had anyone outside of -- or had anyone given you a

714:54:50 reason to believe that there was knowledge of the

814:54:54 OPR referral outside of DOJ?

914:54:58 A That's outside of DOJ.

1014:55:00 Q I mean prior to Mr. Shepardson, that

1114:55:06 clearly is, I mean an agent, defense attorney, or

1214:55:08 anything like that.

1314:55:10 A I did -- Curtis Brunson, who was an agent

1414:55:16 I worked closely with over the years, respected,

1514:55:18 told me that he had heard that there was -- this

1614:55:24 would have been I guess October or -- I think

1714:55:32 October of -- it was 2003, that he heard from a

1814:55:34 defense attorney that I was going to be OPR'd.

1914:55:42 Q Did he tell you which defense attorney?

2014:55:44 A Jim Thomas. I think he said to me, Jim

2114:55:48 Thomas said "your boy is going to get OPR'd."

2214:55:54 That's how Curtis shared it with me, meaning me.

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52 (Pages 202 to 205)

Page 202

115:15:44 Q Mr. Convertino, do you remember an

215:15:46 attorney named William Swor?

315:15:50 A Yes, I know Mr. Swor.

415:15:52 Q He was an attorney in the Koubriti case?

515:15:54 A Yes.

615:15:54 Q Do you recall a post-trial brief that was

715:15:56 filed that has as an attachment a declaration by

815:16:00 Mr. Swor?

915:16:00 A No.

1015:16:04 Q Do you recall him making any allegations

1115:16:08 that you had made an improper threat against him?

1215:16:12 A Yes. I recall being told that.

1315:16:18 Q Who told you that?

1415:16:18 A I think Keith Corbett told me that.

1515:16:24 Q When the post-trial brief came in in

1615:16:26 Koubriti, when the defendants were asking for a new

1715:16:28 trial, did you read that brief, or were you already

1815:16:30 off the case?

1915:16:32 A I was off the case.

2015:16:32 Q Did you read the brief anyway?

2115:16:34 A No, I did not.

2215:16:38 MR. SMITH: I would like to mark another

Page 203

115:16:40 exhibit.

215:16:42 (Convertino Exhibit Number 2 was marked

3 for identification and attached to the deposition

415:17:16 transcript.)

515:17:16 BY MR. SMITH:

615:17:16 Q Before you look at that, do you know

715:17:18 whether the briefs that were filed in the Koubriti

815:17:20 case were generally available to the public?

915:17:24 A No, I don't. I don't know if they were

1015:17:28 handled in the usual manner or not.

1115:17:30 Q What is the usual manner? They would be

1215:17:32 available? Or...

1315:17:34 A I don't even -- I can't recall if in

1415:17:40 2003, 2004, if PACER was up. I don't -- now you

1515:17:48 can review documents on PACER.

1615:17:50 Q Okay.

1715:17:52 A I don't recall whether you could or

1815:17:54 couldn't then. But I didn't.

1915:18:02 MR. KOHN: Would you like the witness to

2015:18:04 examine the document?

2115:18:04 MR. SMITH: I was going to ask him to

2215:18:06 read certain paragraphs.

Page 204

115:18:08 MR. KOHN: I think he can look at the

215:18:08 whole thing first.

315:18:10 BY MR. SMITH:

415:18:10 Q You certainly can look at the whole

515:18:12 thing.

615:18:14 MR. KOHN: And if you want to tell us

715:18:16 right now which ones you want him to focus on.

815:18:18 BY MR. SMITH:

915:18:18 Q It's basically paragraphs 13 through 18.

1015:18:20 A This is Convertino Exhibit 2.

1115:18:28 (Witness complies.)

1215:20:38 A Yes, sir.

1315:20:40 Q Have you had a chance to read it, the

1415:20:42 document?

1515:20:42 A I'm sorry, I wasn't paying attention to

1615:20:44 the particular paragraphs you wanted me to look at.

1715:20:46 Q The paragraphs were 13 through 18.

1815:20:48 A Okay.

1915:20:54 Q Do you recall -- in paragraph 18 it says

2015:20:56 "I reported Mr. Convertino's threat to the other

2115:20:58 defense counsel immediately."

2215:21:02 A Paragraph 18?

Page 205

115:21:04 Q Yes. Did you ever make a threat to

215:21:08 Mr. Swor?

315:21:08 A No.

415:21:08 Q Do you know at all what he's referring to

515:21:10 when he talks about this conversation?

615:21:16 A The conversation in paragraph 17?

715:21:20 Q Yes.

815:21:20 A Or the statements that he alleges?

915:21:22 Q Yes.

1015:21:26 A I mean, absolute unmitigated nonsense.

1115:21:36 No truth whatever to this.

1215:21:38 Q When you say "nonsense," you mean it's

1315:21:40 false, not that it's unintelligible?

1415:21:44 A It is intelligible, sort of, but it is

1515:21:48 categorically false.

1615:21:50 Q If a prosecutor had done what was alleged

1715:21:56 here, would that be serious misconduct? If.

1815:21:58 MR. KOHN: Objection as to form.

1915:22:02 BY MR. SMITH:

2015:22:02 Q If your opinion.

2115:22:04 MR. KOHN: You can answer.

2215:22:04 THE WITNESS: If a prosecutor did what,

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53 (Pages 206 to 209)

Page 206

115:22:08 sir?

215:22:08 BY MR. SMITH:

315:22:08 Q Had made a threat as Mr. Swor alleges,

415:22:12 you say falsely, that you did, would you consider

515:22:14 that to be serious misconduct?

615:22:18 MR. KOHN: First, objection to form. And

715:22:20 second, I think your question is presupposing that

815:22:28 the person who wrote this affidavit has somehow

915:22:32 come in and made an allegation. I mean, I know

1015:22:36 it's in the affidavit, but -- okay, form.

1115:22:40 MR. SMITH: Okay.

1215:22:40 MR. KOHN: Objection as to form. You can

1315:22:42 answer.

1415:22:44 THE WITNESS: If someone were to make

1515:22:46 this accusation, if this accusation were true --

1615:22:50 BY MR. SMITH:

1715:22:50 Q Would it be serious misconduct, in your

1815:22:52 opinion?

1915:22:52 A It would certainly be the type of actions

2015:23:00 that would spur an investigation. So if it were

2115:23:06 investigated thoroughly, if evidence supported that

2215:23:10 the statement was made, then it would be actionable

Page 207

115:23:14 at some level.

215:23:16 Q Okay. Thank you. Do you recall an

315:23:20 individual named Abed Makalda?

415:23:22 A Yes.

515:23:24 Q Do you recall Mr. Sauget's deposition of

615:23:26 last week?

715:23:28 A I was -- yes, I was present for his

815:23:30 deposition. I mean, I was in the same room.

915:23:34 Q Do you remember him testifying about Abed

1015:23:36 Makalda?

1115:23:38 A I do.

1215:23:38 Q As you sit here today, and I realize you

1315:23:40 don't have a transcript in front of you, and you

1415:23:42 don't have a perfect memory, is there anything that

1515:23:44 you can think of today where you think Mr. Sauget

1615:23:48 said something that was incorrect?

1715:23:50 MR. KOHN: Objection as to form, and

1815:23:56 other objections that I would raise. But the

1915:24:00 witness can answer if he can.

2015:24:02 THE WITNESS: If there was anything that

2115:24:04 he said in his four-hour deposition that was false?

2215:24:10 BY MR. SMITH:

Page 208

115:24:12 Q Anything that struck you that you can

215:24:14 think of now as false.

315:24:14 A There were many things that struck me as

415:24:16 false in his statements that he made under oath,

515:24:20 yes.

615:24:22 Q Okay. Understanding that you may not be

715:24:24 able to come up with an exhaustive list, can you

815:24:26 tell me some of the things that you can think of

915:24:28 that you believe he said that were false?

1015:24:34 A Well, his recounting of the events and

1115:24:40 how they occurred regarding Abed Makalda were at

1215:24:46 best misleading throughout, and are uncorroborated.

1315:24:56 His statement that he was not a participant in some

1415:25:02 manner in the leak of the OPR information and

1515:25:06 referral is false. The statement that he made that

1615:25:16 the information or the number of times and when he

1715:25:20 spoke to David Ashenfelter is false.

1815:25:24 The information that he met David

1915:25:26 Ashenfelter or that he spoke to David Ashenfelter I

2015:25:34 think it was on Friday may be true. But I believe

2115:25:40 he had subsequent conversations and conversations

2215:25:42 that preceded that. The statement that David

Page 209

115:25:44 Ashenfelter as a reporter would call a line

215:25:50 Assistant United States Attorney and give him

315:25:54 information such as the OPR referral as a, quote,

415:25:58 heads up, is false.

515:26:02 Q And what is your basis for believing that

615:26:08 his testimony regarding the leak and regarding

715:26:10 Mr. Ashenfelter is false?

815:26:16 A Common sense regarding -- certainly

915:26:18 regarding the last issue that I raised, that being

1015:26:22 that a reporter would call Bill Sauget, who was not

1115:26:26 in a supervisory position, in no position other

1215:26:32 than a line AUSA, to give him a heads up about a

1315:26:34 story that had to do with me, defies logic.

1415:26:40 Q Okay.

1515:26:40 A I know Bill Sauget has had contact with

1615:26:46 the media. And I believe that Bill Sauget and Eric

1715:26:52 Straus were responsible for a press leak that

1815:26:54 occurred during the trial regarding Abed Makalda.

1915:26:58 And I raised that issue with Mr. Gershel. That

2015:27:06 Bill Sauget came into my office at 5:00 p.m. and

2115:27:08 told me whatever he purported to have said about

2215:27:16 Abed Makalda and then asked me -- or -- and then I

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56 (Pages 218 to 221)

Page 218

115:37:50 at any time, under any circumstances, that I can do

215:37:54 anything to retrieve what was lost by the

315:38:00 publication of that article. There's no way that I

415:38:02 can regain my professional reputation, which was

515:38:08 called into question. My professional competence,

615:38:10 my personal integrity, my character, all of that is

715:38:16 gone, because it is -- it was published and

815:38:24 therefore is fact.

915:38:26 I can't get anyone to listen. No one

1015:38:30 will accept an alternative position or explanation.

1115:38:38 It is so far removed from reality that that is what

1215:38:44 I now have become. When I go in court now, I am

1315:38:48 that leak. When I go in front of -- when a client

1415:38:52 comes in, I am that leak. My children have

1515:38:58 suffered from that. My oldest daughter was a

1615:39:00 senior in high school during that period of time,

1715:39:02 and my younger daughter was a freshman in high

1815:39:06 school. Their teachers made comments. Their

1915:39:10 friends made comments.

2015:39:10 I couldn't go to the store. It

2115:39:12 devastated me. It destroyed what I had and what I

2215:39:18 worked for for almost 20 years up to that point.

Page 219

115:39:22 Any mistakes I made as a prosecutor, any stumbles

215:39:26 that I made, any miscalculations that I made were

315:39:32 honest and with all the right intentions as a

415:39:36 Department of Justice attorney.

515:39:38 I wanted nothing more than to retire from

615:39:40 the United States Department of Justice. It was

715:39:44 gone. There is no way that I can possibly explain

815:39:48 to you how devastating that article was.

915:39:54 BY MR. SMITH:

1015:39:54 Q How would you compare the effect of the

1115:40:00 article which you've just described, at least to

1215:40:02 some extent, with the effect of the publicity

1315:40:04 surrounding your indictment? Are you able to do

1415:40:08 that?

1515:40:10 A Easily.

1615:40:10 Q Okay.

1715:40:14 A When the article came out January 17th,

1815:40:20 2004, what it did to me at the point in time and

1915:40:26 where I was personally and professionally, which

2015:40:28 was personally I was in Washington, D.C., the

2115:40:32 significance of that was to send a clear and

2215:40:36 convincing message to Senator Grassley and his

Page 220

115:40:40 staff that they made a gross miscalculation in

215:40:44 their assessment of me as someone who is worthy of

315:40:46 support.

415:40:54 I was going to D.C., leaving my family on

515:40:56 a weekly basis, to a place I wasn't wanted and

615:41:00 surrounded by people who didn't want me there

715:41:02 because they saw me as a political liability and an

815:41:06 excessive burden. I had no meaningful work to do.

915:41:10 I wasn't able to practice my profession. I was in

1015:41:14 a holding pattern of hell. What it did to me prior

1115:41:20 to that time, what led up to that point in time,

1215:41:24 ended my legal career as I knew it and as I wanted

1315:41:30 to continue.

1415:41:32 All of that, I couldn't respond to. I

1515:41:36 had no meaningful way to address any of those

1615:41:38 allegations that were in that article, because I

1715:41:42 wasn't given a fair opportunity. They weren't

1815:41:44 fairly comprised. They were comprised with bad

1915:41:50 intent and recklessly put in an article that

2015:41:54 absolutely crushed everything that I had and worked

2115:41:58 for. The first time that I had an opportunity to

2215:42:04 respond was when I was charged.

Page 221

115:42:06 From the time that that article came out

215:42:08 to the time that I was charged with felonies, I

315:42:16 wanted one thing, to be charged, so I could

415:42:18 respond, because it was a fair fight then. And at

515:42:22 that point in time, all of the allegations that

615:42:26 were brought out by the Justice Department were

715:42:30 shown to be what they were, bogus. Up to that

815:42:34 point in time, I was that article. I wore it

915:42:36 everywhere. I was confronted by that article.

1015:42:40 I had a closing argument, I did a closing

1115:42:44 argument in a case in 2007. It was an assault with

1215:42:56 intent to do great bodily harm. And my client was

1315:42:58 accused of seriously cutting a man in a fight.

1415:43:04 Prior to me getting up and doing my closing, the

1515:43:08 prosecutor had a series of papers that he brought

1615:43:10 out after he did his closing, there was a break,

1715:43:12 and I did mine.

1815:43:14 He put my article, the article that I'm

1915:43:16 associated with, the Ashenfelter article, he had it

2015:43:22 placed on the table in an effort to try and shock

2115:43:26 me, to try and get me off my game, whatever it may

2215:43:34 be. That is what I've become. When I face judges,

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57 (Pages 222 to 225)

Page 222

115:43:38 when I go to court, I don't get a benefit of the

215:43:40 doubt, I don't get a break.

315:43:42 When you people are questioning me, you

415:43:46 look at me and ask me and filter my answers a

515:43:48 certain way because you're convinced that there's

615:43:52 something untoward, must be, because it's in an

715:43:54 article like that and it was put in the paper, and

815:43:58 the Department of Justice wouldn't gather this

915:44:00 information and disseminate it otherwise, because

1015:44:04 you're certainly aware that the leaker was a

1115:44:06 departmental official. And you're certainly aware

1215:44:08 that the elements of the Privacy Act violation are

1315:44:12 met.

1415:44:12 But you continue to fight. You continue,

1515:44:16 you continue to allow that to become a prominent

1615:44:20 part of the life that I want to put behind me.

1715:44:26 Q Okay. I'm sure this will pale in

1815:44:48 comparison to the last answer, but are there

1915:44:50 pecuniary costs that you're seeking remuneration

2015:44:54 for, as opposed to nonpecuniary things such as

2115:44:58 emotional and reputational damage?

2215:45:06 A I can't enumerate them for you now. I

Page 223

115:45:10 mean, there are expenses that were incurred.

215:45:14 There's a tremendous loss of income and potential

315:45:20 income that I'll never regain. There's economic

415:45:28 costs that I haven't thought about or tabulated

515:45:32 because I don't know what they might be. But I can

615:45:40 tell you that if I came out of the United States

715:45:44 Attorney's Office with my level of experience and

815:45:46 background prior to this article, that I would be

915:45:54 probably making ten times as much as I've made in

1015:46:00 private practice.

1115:46:02 I can certainly tell you that there are a

1215:46:06 plethora of people I'm sure that wouldn't consider

1315:46:08 coming to me. There is a judge who contacted me

1415:46:14 about representing him in a case where he's the

1515:46:18 target of an FBI investigation in Detroit, and he

1615:46:22 told me that --

1715:46:24 MR. KOHN: I just want to raise an

1815:46:26 objection to that, the answer. And the question

1915:46:32 calls for a narrative. If we can just go off the

2015:46:36 record and let me talk to my client.

2115:46:38 MR. SMITH: Okay.

2215:46:38 THE VIDEOGRAPHER: We're going off the

Page 224

115:46:40 record. The time is 3:46 p.m.

215:46:52 (Discussion off the record.)

315:47:00 THE VIDEOGRAPHER: We're back on the


515:47:08 BY MR. SMITH:

615:47:08 Q Was there anything you wanted to add

715:47:10 after consulting with your counsel?

815:47:14 A I can't recall where I was.

915:47:18 MR. KOHN: If you can just repeat the

1015:47:18 question. I think he may have been going on a

1115:47:20 narrative.

1215:47:22 MR. SMITH: Could you read back the

1315:47:24 question?

1415:47:24 THE WITNESS: I didn't mean to do that.

1515:47:26 I apologize.

1615:47:26 BY MR. SMITH:

1715:47:26 Q It's okay.

1815:47:50 MR. KOHN: Just to clarify, I think he

1915:47:52 was going off on a tangent. I think you're looking

2015:47:54 for not the reputational, the big picture stuff,

2115:47:58 you're talking about little picture stuff, like

2215:48:00 parking meter fees or something.

Page 225

115:48:02 MR. SMITH: Sure.

215:48:02 MR. KOHN: Whatever. Do you understand

315:48:02 the distinction in the question that he asked? So

415:48:06 you can answer.

515:48:08 BY MR. SMITH:

615:48:08 Q Are you able to answer it?

715:48:08 A I think I've answered to some extent.

815:48:12 I'll just -- would like to add that I haven't

915:48:20 received one client since I've been in private

1015:48:22 practice since May of 2005 that was referred to me

1115:48:24 by another lawyer, which is very uncommon for

1215:48:32 criminal defense attorneys. So I don't believe

1315:48:36 that -- I believe that's a direct result of this.

1415:48:42 Q It's impossible for me to be certain of

1515:48:44 this, but it seems from public information that you

1615:48:46 have a very good record in your trials since you've

1715:48:50 left. I mean, you seem to have won a lot of

1815:48:52 acquittals. Is that a fair statement?

1915:48:54 A Thank you. Yes.

2015:48:58 Q And you've managed to attract a number of

2115:49:02 clients particularly from the law enforcement

2215:49:04 community, is that a fair statement?

DA000059




59 (Pages 230 to 233)

Page 230

115:53:56 were going, and following the article, this type of

215:54:04 nonsense, this type of bold unsupported allegation

315:54:08 was considered.

415:54:12 There were people who -- every defendant

515:54:16 I've convicted had a story that was investigated

615:54:20 now, when otherwise they wouldn't be. Everything

715:54:24 that -- people were jumping on the bandwagon in

815:54:30 order to get cases reviewed and overturned. All of

915:54:34 the evidence, all of the evidence in the Koubriti

1015:54:38 case was re-reviewed and given an applied -- a

1115:54:48 different standard of law was applied.

1215:54:52 None of that would have happened had this

1315:54:54 article not given -- not been published and allowed

1415:54:56 for people to use it as they desired.

1515:55:04 Q Do you have an opinion about Craig

1615:55:06 Morford?

1715:55:08 A I have an opinion. I mean, about Craig

1815:55:12 Morford as a person, Craig Morford as a lawyer?

1915:55:16 Q Both. Either. Do you have an opinion

2015:55:18 about either of those?

2115:55:18 A Well, can you be more specific?

2215:55:26 Q Do you have an opinion about Craig

Page 231

115:55:28 Morford's work while he was in Detroit, both as an

215:55:34 AUSA, as an acting U.S. Attorney?

315:55:40 A I wasn't there at the time Craig Morford

415:55:42 was in Detroit. I have a specific direct opinion

515:55:50 about the way Craig Morford and Eric Straus went

615:55:54 about handling the review that they were tasked to

715:55:58 do which culminated in the motion that they filed.

815:56:04 Q Would you tell me the specific and direct

915:56:06 opinion that you just referenced?

1015:56:08 A I think that the application of the law

1115:56:16 that they applied and the way that the review was

1215:56:18 handled and the way that the reviewers, Mr. Straus

1315:56:24 and Mr. Morford, interacted with the judge and the

1415:56:26 witnesses, I think is highly suspect at best.

1515:56:32 I think that at the time that they

1615:56:34 completed their review, that a fair and proper

1715:56:40 assessment of the material that they purportedly

1815:56:44 came up with should have been made through a

1915:56:48 hearing in court so that the target of their

2015:56:56 motion, specifically the FBI agent and me, could

2115:57:00 have responded, could have questioned witnesses,

2215:57:04 and could have asked for documents and information

Page 232

115:57:10 to be provided through a hearing, much like it is

215:57:12 done in every other case that I'm familiar with.

315:57:18 There was no hearing. We were not

415:57:20 allowed the opportunity to respond to that motion.

515:57:30 Q Thank you. Are you claiming damages for

615:57:32 any specific emotional condition caused by the

715:57:38 article? I understand you're very upset about it.

815:57:44 But is there any specific diagnosable emotional

915:57:46 condition you're claiming?

1015:57:48 MR. KOHN: I'm just going to object,

1115:57:48 foundation and form. He is not an expert on this

1215:57:52 matter. But he can answer.

1315:57:56 THE WITNESS: I'm sorry. Can you ask

1415:57:58 again, please?

1515:57:58 BY MR. SMITH:

1615:58:00 Q Yes. Are you claiming damages for any

1715:58:02 diagnosable emotional condition as a result of this

1815:58:06 article?

1915:58:08 A I have no idea what diagnosable emotional

2015:58:14 harm may have been done.

2115:58:16 Q Have you seen a mental health

2215:58:18 professional since January 17th of 2004 for the

Page 233

115:58:22 purpose of diagnosis, or for the purpose of

215:58:26 diagnosis or treatment?

315:58:28 A No. I have not.

415:58:30 Q Why not?

515:58:38 A Because I chose to handle the stress, the

615:58:56 anxiety, the emotional turmoil, without seeking the

715:59:04 assistance of an outside professional,

815:59:10 purposefully.

915:59:12 Q Why? You say "purposefully." Why?

1015:59:14 A Because I didn't want to -- I'd like to

1115:59:24 take a break if I might, I would like to speak to

1215:59:28 Mr. Kohn briefly.

1315:59:28 Q That's fine.

1415:59:30 A Thank you.

1515:59:30 THE VIDEOGRAPHER: We're going off the


1716:07:12 (Recess.)

1816:07:48 THE VIDEOGRAPHER: We're back on the


2016:07:58 BY MR. SMITH:

2116:07:58 Q Good afternoon, Mr. Convertino. Are you

2216:08:02 able to answer the last question?

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60 (Pages 234 to 237)

Page 234

116:08:04 A I'm sorry, can you ask me again?

216:08:06 MR. SMITH: Could you read back his last

316:08:08 answer, and then the question.

416:08:10 (Requested portion of record read.)

516:08:42 BY MR. SMITH:

616:08:42 Q Are you able to answer that, sir?

716:08:44 A Yes.

816:08:44 Q Would you please.

916:08:48 A I did not want to give the satisfaction

1016:09:00 of having to seek the assistance of a medical

1116:09:06 professional for the damage that was done. It was

1216:09:16 a personal decision not to do that.

1316:09:22 Q Are there any ways in which your

1416:09:28 personality -- to your knowledge, are there any

1516:09:32 ways in which your personality has changed since

1616:09:34 the article in a permanent or semi-permanent way?

1716:09:38 MR. KOHN: Again, I'm just going to

1816:09:40 object to form, because he's not a medical

1916:09:48 professional. But he can answer.

2016:09:50 THE WITNESS: Yes.

2116:09:50 BY MR. SMITH:

2216:09:50 Q And can you explain how, what the changes

Page 235

116:09:56 are?

216:09:56 A I am angry. What -- the institutions

316:10:10 that I once held sacred seemed devoid of what they

416:10:22 held or stood for prior. I have a hard time seeing

516:10:34 that people who are in positions of authority, who

616:10:40 I believe egregiously abused their positions, are

716:10:44 not only still in those positions but have been

816:10:46 elevated because of what they did and promoted,

916:10:52 people who were so reckless and cavalier in

1016:10:56 disregarding what was so important to another

1116:11:00 person.

1216:11:04 Whether I'm -- whether it's actual or

1316:11:10 perceived by me, I feel as though clients, other

1416:11:20 attorneys, others in my profession, have a

1516:11:26 particular view or opinion of me that is

1616:11:34 undeserved. Those are things that markedly changed

1716:11:40 after the article. I don't have any -- actually I

1816:11:44 used to think that reporters sought the truth. I

1916:11:52 have no faith in that whatever.

2016:11:54 So it's changed me I think in many ways.

2116:12:04 Q Are you unable to perform any tasks that

2216:12:12 you could perform before?

Page 236

116:12:18 A Am I unable to perform any tasks?

216:12:22 Q Anything you can think of.

316:12:28 A I mean, nothing comes to mind right now.

416:12:30 Q Okay. Have there been any physical

516:12:32 manifestations of your emotional feelings such as

616:12:36 headaches, loss of sleep, or anything like that?

716:12:44 A I haven't slept, I don't think, since --

816:12:50 I haven't slept through the night since, not once.

916:12:54 Q Did you have sleeping problems before the

1016:12:56 article?

1116:12:58 A No.

1216:12:58 Q Your testimony is that you have not had a

1316:13:00 full night's sleep since January 17th of 2004?

1416:13:04 A I have not.

1516:13:04 Q How many hours do you normally sleep?

1616:13:12 A At most at any one period of time, four

1716:13:20 hours.

1816:13:22 Q And in a given night in total, I mean,

1916:13:26 can you put together a couple, four hours, get up,

2016:13:30 then another two hours, or is it just four hours

2116:13:32 and then you're done for the night?

2216:13:34 A I usually come home at 7, 8:00 at night,

Page 237

116:13:42 lay down, maybe for an hour, get up, go to bed at

216:13:50 1, get back up at 3 or 4, go into the office.

316:14:04 Q How many hours a night did you sleep

416:14:06 prior to the article?

516:14:08 A Slept normally.

616:14:08 Q But normal is sometimes different for

716:14:10 different people. What was it for you? If you

816:14:14 recall.

916:14:14 A I would say six to eight hours.

1016:14:16 Q Sounds normal. Are you claiming any

1116:14:24 damages for damage to your marriage? Not to

1216:14:28 suggest that there is any. I'm just asking if

1316:14:30 you're claiming damages in this case for that.

1416:14:34 MR. KOHN: I just wanted to interpose,

1516:14:36 I'm not sure, the question that you had asked

1616:14:38 before this was very broad, it was physical

1716:14:40 manifestations. I know he touched on sleep. I'm

1816:14:42 not sure if he's answered the question fully yet.

1916:14:46 BY MR. SMITH:

2016:14:48 Q Did you have an opportunity to answer the

2116:14:50 prior question fully, as Mr. Kohn suggested you

2216:14:52 might not have, or do you want to go back to that?

DA000061


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Richard Convertino Deposition

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