21 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 66 of the trial, June 20, 2001.

See other transcripts: usa-v-ubl-dt.htm


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           June 20, 2001
                                               9:30 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge

  15                            APPEARANCES

            United States Attorney for the
  17        Southern District of New York
  18        MICHAEL GARCIA
            Assistant United States Attorneys


  22        Attorneys for defendant Khalfan Khamis Mohamed

       Swahili Interpreter:
  24   Beston Mwakaling



   1            (Trial resumes; jury not present)

   2            THE COURT:  Tomorrow we can't start before 10:00.

   3   Some juror would not be available.

   4            Any reason not to bring in the jury?

   5            MR. RUHNKE:  Yes, your Honor.  There are a couple of

   6   things we would like to take up with the Court before the jury

   7   comes in.

   8            THE COURT:  Yes.

   9            MR. RUHNKE:  The first issue, I received yesterday

  10   from Mr. Bianco, who is the firewall, technical wall in the

  11   U.S. Attorney's Office --

  12            THE COURT:  Yes.

  13            MR. RUHNKE:  -- a transcript of the proceedings

  14   involving Mr. Salim before Magistrate Judge Eaton in October,

  15   October 26th I think the day is.  It's my understanding, and I

  16   want to confirm that with everybody, that is now a document

  17   that is available to everybody.  There is no longer a sealed

  18   aspect of that document.

  19            THE COURT:  That isn't my understanding.

  20            MR. RUHNKE:  That's what we need straightened out.

  21            THE COURT:  My understanding is that it was made

  22   available to you for the limited purpose of enabling you to

  23   determine whether you wanted to make any further application.

  24            MR. RUHNKE:  Well, then, your Honor, it is my

  25   understanding that Mr. Lind, who is Mr. Salim's attorney, has


   1   informed the U.S. Attorney that there is no objection to

   2   unsealing that document.

   3            The second issue on this same topic is that I would

   4   also ask for copies of the letters that have been written

   5   by --

   6            THE COURT:  Unsealing this document makes it

   7   available to everyone?

   8            MR. RUHNKE:  Yes.

   9            THE COURT:  Including me?

  10            MR. RUHNKE:  Including you.

  11            THE COURT:  The whole purpose of the reference to the

  12   magistrate was to enable Mr. Salim to make arguments as to why

  13   he was dissatisfied with his current counsel without the risk

  14   of the judge who would preside at the trial being exposed to

  15   those arguments.

  16            MR. RUHNKE:  In fact, if I recall, the precise nature

  17   of the referral, at least reflected in the transcript, was

  18   perhaps Mr. Salim wished to discuss strategy that he wanted to

  19   pursue that his attorneys were not pursuing.  I think --

  20            THE COURT:  I think that's right.

  21            MR. RUHNKE:  Having reviewed that transcript, the

  22   United States having reviewed that transcript, I think we can

  23   all agree that there was none of that that took place during

  24   that session.

  25            THE COURT:  You are saying that Salim's counsel has


   1   no objection to it?

   2            MR. RUHNKE:  That's correct.

   3            THE COURT:  Does the government have any objection to

   4   it?

   5            MR. FITZGERALD:  Your Honor, I don't know.  I haven't

   6   seen it.  I was advised by Mr. Bianco that he thought from the

   7   conversation with Salim's counsel that there was no objection

   8   to the government seeing it.  Because it seemed like dangerous

   9   ground, I asked Mr. Bianco to make sure of that because the

  10   last thing I wanted to do was taint anything.  It now strikes

  11   me that Mr. Lind represents Salim on the assault.

  12            THE COURT:  Yes.

  13            MR. FITZGERALD:  Mr. Haber represents Mr. Salim on

  14   the underlying case.

  15            THE COURT:  I think that's correct.

  16            MR. FITZGERALD:  Which is the concern, and I would

  17   just want to make sure that, one, Mr. Salim consents, and

  18   Mr. Lind and Mr. Haber all are on board, so we don't have an

  19   issue where Mr. Salim then turns and says he did not agree or

  20   Mr. Haber did not agree.

  21            THE COURT:  I think that point is well-taken.

  22            MR. RUHNKE:  The somewhat frustrating thing about

  23   there, I never knew these documents existed until last week

  24   and they bear on the assault.  They bear importantly on

  25   Mr. Salim's state of mind, things he was saying, the degree of


   1   upset that he was displaying.

   2            THE COURT:  Why don't -- since we made such a point

   3   to get this jury in early, why can't we do this during the

   4   midmorning recess or soot some other point during the day.

   5            MR. RUHNKE:  Because I understand the government's

   6   first witness or earliest witness is going to be

   7   Mr. McAllister.

   8            THE COURT:  Yes.

   9            MR. RUHNKE:  Who is Mr. Salim's former counsel who

  10   was present during this conference, and he will be a witness

  11   that I would want to question about what went on in that

  12   conference and what kinds of things Mr. Salim was discussing

  13   during that conference.

  14            I'm a little unsure because there is still an issue

  15   as to whether it is a sealed document or not.  I also still

  16   have not received, though, the letters that were supposed to

  17   have been delivered to me with the transcript, the letters to

  18   your Honor from Mr. Salim apparently complaining about his

  19   counsel is what I understand the subject of them to be.

  20            MR. GARCIA:  Judge.

  21            THE COURT:  What is it that you now want?  What is it

  22   that you are now asking of the Court, if anything?

  23            MR. RUHNKE:  For permission to utilize those --

  24   first, to have access to the letters that I thought were

  25   coming; second, to utilize the transcript in the


   1   cross-examination of Mr. McAllister.

   2            MR. GARCIA:  May I make a suggestion?

   3            THE COURT:  Yes.

   4            MR. GARCIA:  If we could call Mr. McAllister, we can

   5   inquire generally into he was having disagreements with his

   6   client, which I'm sure he is prepared to say, even those that

   7   were referred to a magistrate, which is a matter of public

   8   record at the October 20th transcript suppression hearing.

   9            If your Honor determines at a later date that that

  10   transcript is admissible or some portion, it can be put in and

  11   of course a witness can be recalled, but I don't think it is

  12   necessary now to derail the jury and the proof in order to

  13   resolve this issue.

  14            MR. RUHNKE:  I'm not interested in derailing the

  15   jury, your Honor.  I'm interested in an orderly

  16   cross-examination.

  17            THE COURT:  What is your problem with Mr. Garcia's

  18   suggestion?

  19            MR. RUHNKE:  Of recalling Mr. McAllister at a later

  20   date?

  21            THE COURT:  Yes.

  22            MR. RUHNKE:  It is that it breaks up the presentation

  23   and does not make for a complete presentation on

  24   cross-examination.

  25            THE COURT:  That objection is overruled.


   1            MR. RUHNKE:  And my inquiry, too, about the letters

   2   themselves?

   3            THE COURT:  I think the point is that Mr. Lind's

   4   consent is relevant to the proceedings before Judge Batts, but

   5   insofar as the proceedings in this case are concerned,

   6   Mr. Haber is the counsel who has some concerns.

   7            MR. RUHNKE:  The somewhat frustrating thing about the

   8   whole process is there is nothing in there that bears on any

   9   of those issues, frankly, and it's clearly exculpatory

  10   information and it's a problem to not be able to present it in

  11   and orderly way.  I understand your Honor's ruling.

  12            One other issue I wanted to present to your Honor is

  13   that there is an issue of a sharpened hairbrush that was used

  14   as a weapon.

  15            THE COURT:  Yes.

  16            MR. RUHNKE:  The indictment charges directly that

  17   Mr. Salim was the person who wielded that weapon, and I would

  18   like access to the grand jury material that supports that

  19   allegation by the grand jury or the underlying evidence that

  20   supports that allegation to be sure that we are able to

  21   establish, that we are able to establish to the jury, that

  22   there is no contention by the United States that Mr. Mohamed

  23   wielded the hairbrush as a weapon.

  24            THE COURT:  Why isn't the indictment itself

  25   sufficient for that purpose?


   1            MR. RUHNKE:  If the United States will stipulate that

   2   the indictment accurately reflects what occurred, that's fine.

   3            MR. GARCIA:  Your Honor, just so the record is clear,

   4   there are two indictments in the assault case, separate

   5   indictments from the original one.

   6            THE COURT:  Excuse me one moment.

   7            MR. GARCIA:  One of them did in fact allege that

   8   Salim in a particular count committed an assault on a guard

   9   after the attack on Officer Pepe.  Salim attacked a guard --

  10            THE COURT:  Excuse me a moment.  I was distracted by

  11   a note which tells me that one juror has still not arrived, so

  12   we do have some time.

  13            MR. GARCIA:  That was a count in the first indictment

  14   in front of Judge Batts, separate indictment.

  15            THE COURT:  Yes.

  16            MR. GARCIA:  It may have been in the first superseder

  17   here that charged that Salim, in the assault on the guards

  18   that came up to Officer Pepe's aid, wielded a weapon and

  19   struck a guard causing an injury.  The weapon then was, to

  20   wit, a sharpened brush.  There is a superseding indictment in

  21   that case which says the same language, removes the brush,

  22   just a weapon.

  23            To my recollection, and I will check the transcript

  24   underlying it, it's just a weapon.  The witness cannot

  25   describe what this weapon is.  He's cut with a weapon.  And


   1   it's the assault after, it's the --

   2            MR. RUHNKE:  Your Honor, I'm looking at --

   3            THE COURT:  Is the claim that the stabbing of Officer

   4   Pepe in his eye with the sharpened brush was done by Salim

   5   disputed?  Is that a disputed fact?

   6            MR. GARCIA:  Your Honor, it is not known.

   7            THE COURT:  It is not known.  Okay.

   8            MR. RUHNKE:  In other words, the government is

   9   leaving open to argue to the jury that they don't know who

  10   stabbed him, it could have been Mohamed, it could have been

  11   Salim.

  12            THE COURT:  Okay.

  13            MR. GARCIA:  That's accurate.

  14            MR. RUHNKE:  Your Honor, I'm referring to Count 314

  15   of what I think is the superseding indictment that Mr. Garcia

  16   is referring to.

  17            THE COURT:  Yes.

  18            MR. RUHNKE:  I don't know if I'm accurate or not.  Is

  19   that it?

  20            MR. GARCIA:  That's the first one, yes.

  21            MR. RUHNKE:  First indictment.  It says --

  22            THE COURT:  This is the indictment before Judge

  23   Batts?

  24            MR. GARCIA:  No, Judge.  That's the indictment in

  25   front of your Honor.


   1            THE COURT:  Before me.  Yes.

   2            MR. RUHNKE:  That's (S10) before your Honor.  Count

   3   314 alleges on or about November 1, 2000, Mamdouh Mahmud Salim

   4   assaulted a corrections officer and it contains the following

   5   language:  "Mamdouh Mahmud Salim, the defendant, after

   6   Corrections Officer 1 was stabbed in the eye with a sharpened

   7   comb at the Metropolitan Correction Center, New York, New

   8   York, stabbed with a weapon made from a sharpened brush a

   9   corrections officer known to the grand jury 'Corrections

  10   Officer 2,' who responded to the scene of the earlier

  11   stabbing."

  12            What I'm asking for is the underlying information

  13   that supports the grand jury's finding that that was true by

  14   probable cause.  The grand jury returned this indictment.

  15            THE COURT:  This is the second stabbing?

  16            MR. RUHNKE:  Yes.  There is an allegation, your

  17   Honor, that when the officers responded, a sharpened hairbrush

  18   which is recovered, analyzed, photographed, I assume will be

  19   testified --

  20            THE COURT:  This is not the comb.

  21            MR. RUHNKE:  No.

  22            THE COURT:  I see.  We are dealing with two sharpened

  23   instruments?

  24            MR. GARCIA:  Yes.

  25            MR. RUHNKE:  Yes.


   1            THE COURT:  I'm sorry.  I'm out of context.  Okay.

   2            MR. RUHNKE:  What I am looking for is whatever

   3   information there is in the possession of the United States

   4   that was presented to the grand jury which caused them to

   5   return that charge, that there is probable cause to believe

   6   that it was Salim who used the hairbrush.

   7            I gather the United States would leave it unsettled

   8   and open to speculation that maybe it wasn't Salim and maybe

   9   it was Mohamed, when the grand jury, at least in one version

  10   of this indictment, made the specific finding that Salim is

  11   the person who wielded the hairbrush among the information.

  12            THE COURT:  You want the testimony before the -- I

  13   assume this is the testimony of some guard or some witness,

  14   and you want that portion of the presentation to the grand

  15   jury which relates to the hairbrush stabbing?

  16            MR. RUHNKE:  Yes, and any documents that underlie the

  17   allegation, including any interviews that were done with

  18   witnesses.  Perhaps this was presented to the grand jury by a

  19   summary witness.  I don't know.

  20            It certainly seems fair if the United States is going

  21   to suggest that perhaps Khalfan Mohamed is the one who weiled

  22   the sharpened hairbrush, weapon number two, when the

  23   information presented to the grand jury is not that.  It

  24   should not be a controversial matter for the government to

  25   recognize an inconsistency of those positions and Brady nature


   1   of the inquiry.

   2            THE COURT:  Mr. Garcia?

   3            MR. GARCIA:  Your Honor, this is the first we're

   4   hearing of this request.  Without getting into what was said

   5   before the grand jury, if the government could have until

   6   lunch or perhaps after court today to review the testimony and

   7   provide that.

   8            THE COURT:  Yes.  All right.

   9            MR. RUHNKE:  Thank you, your Honor.

  10            THE COURT:  All right.  So now we will proceed.  The

  11   jury may come in.

  12            So we are going to have another victim impact

  13   witness, then you are going to call Mr. McAllister.

  14            MR. GARCIA:  Yes, Judge, and then Bureau of Prison

  15   personnel.

  16            THE COURT:  And Bureau of Prison personnel.  All

  17   right.

  18            And Mr. Ruhnke, if you want to defer

  19   cross-examination in whole or in part of Mr. McAllister until

  20   these matters are further resolved, you may do so.

  21            MR. RUHNKE:  Likely in part, not in whole.

  22            THE COURT:  Yes.

  23            Just a thought which I will throw out for everyone's

  24   further consideration, including my own:  Whether it might not

  25   simplify matters vis-a-vis Salim for me now to determine that


   1   I will not preside at the Salim trial and that would -- that

   2   might make that material available to the whole world except

   3   me and I will not feel deprived.

   4            MR. FITZGERALD:  Your Honor, I think I can simplify

   5   your simplification.  I received a note that indicated

   6   Mr. Bianco spoke to Richard Lind, who consents to the material

   7   being public, as I understand it, and he had spoken to his

   8   client, who also consents, and Mr. Bianco just spoke to

   9   Mr. Haber, who also agreed.

  10            THE COURT:  All right.

  11            MR. FITZGERALD:  So I think that certainly we can

  12   then see, if there is any additional material the government

  13   would like to review it, but I think it's not going to be a

  14   retractable problem.

  15            THE COURT:  The jury is lining up.

  16            MR. RUHNKE:  Your Honor, I ask this rhetorical.  I'm

  17   sure the answer is yes.  Has your Honor given thought to the

  18   Fourth of July holiday?

  19            THE COURT:  We won't sit on the Fourth of July.  I

  20   think we'll sit on the 3rd and the 5th, which makes me no more

  21   demanding than the Senate Majority Leader.

  22            MR. FITZGERALD:  Your Honor, while we're waiting,

  23   there is a matter I won't discuss in open court, a sealed

  24   matter the government was preparing a letter on.  It is being

  25   cite-checked.  I don't think there is a reason to hold up, but


   1   as soon as it is done it is going to be copied and brought

   2   over.  I told Mr. Ruhnke the substance of it.

   3            Thank you.

   4            (Jury enters)

   5            THE COURT:  Good morning.

   6            THE JURY:  Good morning.

   7            THE COURT:  I understand in terms of the pick-up time

   8   tomorrow that you want it a little later, and you can work

   9   that out with the marshal, and that's fine.  We won't attempt

  10   to start tomorrow before 10:00.

  11            The government may call its next witness.

  12            MR. FITZGERALD:  Thank you, Judge.  The government

  13   calls Kulwa, Rahadhani.  He will be using the interpreter.


  15        called as a witness by the government,

  16        having been duly sworn, testified

  17        through the interpreter as follows:



  20   Q.  Good morning, sir.

  21   A.  Good morning.

  22   Q.  Is your name Kulwa Rahadhani Mbogo?

  23   A.  Yes.

  24   Q.  On August 7th, 1998 when the American embassy was bombed

  25   in Tanzania, was a close relative of yours killed?


   1   A.  Yes.

   2   Q.  Who was that?

   3   A.  Doto Rahadhani Mbogo.

   4   Q.  Can you tell the jury who Doto was, how he was related to

   5   you?

   6   A.  He's my brother.

   7   Q.  Let me approach you with what has been premarked as

   8   Government Exhibit 3032, a photograph, and ask you to look at

   9   the photograph and tell us if that's a picture of your brother

  10   Doto?

  11   A.  Yes.

  12   Q.  Do you know when the picture was taken?

  13   A.  August 1998.

  14   Q.  Were you and Doto twins?

  15   A.  Yes.

  16   Q.  Can you tell us how many other children were in the family

  17   besides you and Doto?

  18   A.  We are five of us, two girls and three boys, including

  19   myself.

  20   Q.  And can you tell us the names of your brothers and sisters

  21   and how old they are?

  22   A.  Yes.  Kassim, 28 years old; Majalawe, 20 years old, Upenda

  23   do, 19; Rehema, 17; myself, I'm 30 years old.

  24   Q.  And when did your mother die?

  25   A.  1994.


   1   Q.  Was she killed in a plane crash in 1994?

   2   A.  Yes.

   3   Q.  And when did your father pass away?

   4   A.  In '97.

   5   Q.  After your father passed away, who took charge of raising

   6   your family?

   7   A.  The one who was taking care is my relative Doto.

   8   Q.  And can you tell the jury how far Doto went in school?

   9   A.  Standard 7, which is grade 7.

  10   Q.  And what did he do for work?

  11   A.  He was working at the embassy as a gardener.

  12   Q.  And when your brother was working at the embassy as a

  13   gardener after your parents had passed away, how was the

  14   family doing financially in terms of supporting itself?

  15   A.  He was the one who was helping our family because I didn't

  16   have no job.

  17   Q.  How long did Doto work at the embassy as a gardener?

  18   A.  Five years.

  19   Q.  What was the relationship like between you and Doto?

  20   A.  We was getting along with each other very well and when he

  21   comes back at home, we was doing carpentry together, fixing

  22   windows, doing other works of carpentry together.

  23   Q.  And how did he get along with your other brothers and

  24   sisters?

  25   A.  He got along very well because he was very polite, and he


   1   was getting along very well with them and he was helping them

   2   a lot.

   3   Q.  And what did Doto like to do for fun?

   4   A.  He liked to go to play soccer and to go to cinemas, the

   5   movies.

   6   Q.  And what position did Doto play in soccer?

   7   A.  He was player number 7.

   8   Q.  What side of the field was that on?

   9   A.  On the right side.

  10   Q.  And did you also play soccer with him?

  11   A.  Yes, I play number 11.

  12   Q.  And was Doto planning to be married in August -- directing

  13   your attention to August 1998, did Doto have plans to be

  14   married?

  15   A.  Yes.

  16   Q.  Who was he marrying?

  17   A.  This one girl called Martha.

  18   Q.  How old was Martha?

  19   A.  I can't remember how old she was.

  20   Q.  And when were they planning to be married?

  21   A.  They was planning to get married in September 1998.

  22   Q.  And did they have plans to have children?

  23   A.  Yes.

  24   Q.  How many children did they plan to have?

  25   A.  Two kids.


   1   Q.  And did Doto have a son from a prior relationship?

   2   A.  Yes.

   3   Q.  And how old is that son?

   4   A.  Nine years old.

   5   Q.  And is the son's mother alive?

   6   A.  His mother died.

   7   Q.  Directing your attention to August 7th, 1998, how did you

   8   hear about the bombing?

   9   A.  That day I was home, and Doto came in the morning around

  10   9:30 to pick up chapati, which is like a bread, to take to

  11   work.  He came and he said, I'll be back later, which is the

  12   normal way for him, coming back in the afternoon for lunch.

  13   And later on we heard had a big explosion we never heard

  14   before, and we was just wondering what is happening.

  15            At that moment after we heard that explosion, we just

  16   went to look to find where there explosion happened.  And I

  17   went to the embassy and we found out the explosion, what

  18   happened, and we looked and we couldn't go there.  And then we

  19   went back home, and one of his friend, co-worker, asked us,

  20   did you see your brother?  We said no.  He said we should go

  21   to the hospital to look for him, and then we decided to go to

  22   the hospital to look for him.

  23            At that day we went to, myself, I went to Aga Khan

  24   Hospital and Muhimbili Hospital to look for him.  Until 10:00

  25   we couldn't find him, so then we decided we wanted to go to


   1   the police station to report that our brother, we can't find

   2   him.  And we was informed and told by the police station that

   3   we should go back home and wait for tomorrow and to start

   4   looking for him.  And the next day we went, all of us again,

   5   to the Muhimbili Hospital.  We look for him until the

   6   afternoon and we couldn't find him and then we decide to go

   7   back home.

   8            And we planned to come back at 3 p.m., and at the

   9   hospital before 3:00, one of the relatives was released at the

  10   hospital and he was told to look for the names who had been

  11   injured and for people who had been dead and he went there to

  12   look for the name of Doto.  And he was able to go to the

  13   hospital and he was able to identify Doto and another friend

  14   who died also in that bomb, and they came back home to inform

  15   us that Doto had died.

  16            And we left to go to the hospital to the mortuary to

  17   look for the body of Doto, and I was able to identify my

  18   relative that is the body of Doto and then we went back home

  19   to start the funeral.  Before that, we couldn't prepare for

  20   funeral because we didn't know what exactly what happened to

  21   him.  Then we started preparing for a funeral.

  22            That's what happened until the day we buried our

  23   friend.

  24            MR. FITZGERALD:  And your Honor, I neglected to offer

  25   Government Exhibit 3032, the photograph, and I would like to


   1   offer it at this time and display it.

   2            THE COURT:  Yes, you may.

   3            (Government Exhibit 3032 received in evidence)


   5   Q.  Can you tell the jury what impact the loss of your brother

   6   Doto has had upon your family?

   7   A.  My life right now is difficult, because Doto is the one

   8   who had all the expertise.  He was the one who was helping the

   9   family.  He was the one who was helping me to do, to fix the

  10   windows for construction.  He was the one who had so many

  11   expertise to do things.  I don't have any expertise.  He was

  12   the one who was helping me with everything.

  13   Q.  Who is supporting the family now?

  14   A.  I'm struggling myself with them.

  15   Q.  And who is living with you?

  16   A.  He's living with them.  They're living with me.

  17   Q.  And those would be all your brothers and sisters?

  18   A.  Yes.

  19   Q.  And where is Doto's son living?

  20   A.  I live with him.

  21   Q.  And did some of your sisters have to leave school?

  22   A.  Yes, even Doto, Doto's son, he's not going to school.

  23   Q.  And how is Doto's fiance, Martha, how has the loss of Doto

  24   impacted her?

  25   A.  At the beginning, we stay with her at her house and we


   1   stay for a while and we ask her to stay with us, but she's

   2   decided to go back home and now she's living with somebody

   3   else.

   4   Q.  What has the emotional impact been on you of the loss of

   5   your brother?

   6   A.  My life has been difficult because everything I was doing,

   7   we was doing together.  And most of the time we was together,

   8   and our brothers and sisters, always they see us together, the

   9   two of us, but now they don't see us anymore together.  And we

  10   look alike a lot.  Life is difficult.

  11            MR. FITZGERALD:  I have nothing further, your Honor.

  12            MR. RUHNKE:  No questions, your Honor.

  13            THE COURT:  Thank you.  You may step down.

  14            (Witness excused)

  15            MR. GARCIA:  The government calls Paul McAllister.

  16            THE COURT:  You may proceed.

  17            MR. GARCIA:  Paul McAllister.


  19        called as a witness by the government,

  20        having been duly sworn, testified as follows:


  22   BY MR. GARCIA:

  23   Q.  Good morning, Mr. McAllister.

  24   A.  Good morning.

  25   Q.  What do you do for a living?


   1   A.  I'm an attorney.

   2   Q.  And in the course of your work as an attorney, did you

   3   represent a client named Mamdouh Mahmed Salim?

   4   A.  Yes.

   5   Q.  And generally what were the charges Mr. Salim was facing?

   6   A.  Conspiracy to commit terrorist acts.

   7   Q.  Approximately when did you become Mr. Salim's lawyer?

   8   A.  I began my representation on December 21st of 1998.

   9   Q.  Were you also working with other lawyers who represented

  10   Mr. Salim?

  11   A.  Yes.

  12   Q.  And could you tell us their names?

  13   A.  Charles Adler and George Goelzer.

  14   Q.  Mr. McAllister, you do not represent Mr. Salim today?

  15   A.  No.

  16   Q.  And approximately what date were you relieved from that

  17   representation?

  18   A.  I think November 8th of 2000.

  19   Q.  Fair to say, then, you represented Mr. Salim for

  20   approximately a little short of two years?

  21   A.  Yes.

  22            MR. GARCIA:  And if we could have displayed for

  23   Mr. McAllister only Government Exhibit 4059.

  24   Q.  Do you recognize that individual?

  25   A.  Yes, that appears to be Mr. Salim.


   1            MR. GARCIA:  If we could, I would offer Government

   2   Exhibit 4059 into evidence, Judge.

   3            MR. RUHNKE:  No objection.

   4            THE COURT:  Received.

   5            (Government Exhibit 4059 received in evidence)

   6   BY MR. GARCIA:

   7   Q.  Mr. McAllister, could you describe for us physically

   8   Mr. Salim?  About how tall was he?

   9   A.  I would say approximately five-ten.

  10   Q.  Could you describe generally his build?

  11   A.  He's somewhat slim now, built -- I would say medium build.

  12   Q.  And directing your attention to November 1st of 2000.

  13   A.  Yes.

  14   Q.  Did you attempt to visit your client Mr. Salim at that

  15   time?

  16   A.  I did.

  17   Q.  Where did you go?

  18   A.  I went to MCC, the Metropolitan Correctional Center, here

  19   in Manhattan.

  20   Q.  Would that be in lower Manhattan next door to the

  21   courthouse?

  22   A.  Yes.

  23   Q.  And approximately what time did you arrive at the MCC?

  24   A.  I arrived at the facility sometime after 8 a.m., the

  25   precise hour I don't recall.


   1   Q.  Did any of your co-counsel join you later that day in the

   2   visit?

   3   A.  Eventually, yes.

   4   Q.  And who would that be?

   5   A.  Charles Adler.

   6   Q.  And your best recollection, how did that meeting with

   7   Mr. Salim come about that morning?

   8   A.  Well, I know that Charles Adler and I had planned to come

   9   and see him because we were involved in trying to prepare for

  10   the upcoming trial, and the details of the planning I don't

  11   recall precisely.

  12   Q.  And you mentioned upcoming trial.  Do you recollect

  13   approximately when that trial was to start?

  14   A.  Yes, January, early January of this year.

  15   Q.  2001?

  16   A.  Yes.

  17   Q.  Is it a fair statement, Mr. McAllister, that you had been

  18   having some disagreements with Mr. Salim over your

  19   representation at that time?

  20   A.  That is fair to say.

  21   Q.  And were there occasions in the fall of 2000 when in fact

  22   Mr. Salim refused to see you at the MCC?

  23   A.  Yes, there were.

  24   Q.  On November 1st, 2000, did there come a time eventually

  25   that Mr. Salim did agree to see you?


   1   A.  Yes.

   2   Q.  Let's go back to your arrival at the MCC.  Where did you

   3   go after you entered the prison facility?

   4   A.  Well, after I cleared the process downstairs, I ultimately

   5   arrived at the housing unit on 10 South where Mr. Salim was

   6   incarcerated.

   7   Q.  To get to the 10 South Unit when you were in the MCC, what

   8   do you have to do?

   9   A.  Well, you first have to, after going through the lobby and

  10   having your briefcase or whatever other items you have x-rayed

  11   and having passed through a metal detector, you pass through

  12   another door after signing a book, indicating the time of your

  13   arrival initially, then you pass through one door, you go down

  14   a corridor, you pass through a second door that's

  15   electronically locked, a heavy metal door, and then you have a

  16   third door.  And when you arrive beyond the third door, then

  17   you are outside by the elevators ready to go up to the ninth

  18   floor.

  19            Now, you take the -- one takes the elevator to the

  20   ninth floor and then there was yet another metal door to pass

  21   through.  Then there are -- there's a gate, an iron-barred

  22   gate.  One passes through that and then you're in the 9 South

  23   facility.

  24            Then there is a small flight of stairs that you go up

  25   and then there is yet another electronic metal door.  You pass


   1   through that into a small vestibule, and there is yet another

   2   metal door that is unlocked by whoever is on duty inside.

   3            And you pass through that, and then you are on the

   4   housing unit.

   5   Q.  The 10 South Housing Unit?

   6   A.  10 South.

   7   Q.  Do you sign another log when you get into the 10 South?

   8   A.  Yes.  When you arrive at that final destination, you sign

   9   another log.  There are, I think, three logs that are signed

  10   and that final one is right up there at 10 South.

  11   Q.  Do you recall approximately what time you signed in that

  12   log on the morning of November 1?

  13   A.  I believe it was 8:55 a.m.

  14   Q.  And when you got through that second door and into the 10

  15   South Unit, who did you see?  Who was the first person you

  16   saw?

  17   A.  Officer Pepe.

  18   Q.  And did you know Officer Pepe prior to that date?

  19   A.  Yes.

  20   Q.  About how many times did you see him?

  21   A.  Many times.  I had seen him many times.  He was --

  22   Q.  I'm sorry.  Continue.

  23   A.  Over the, I think at least, I think as much as a year he

  24   was the person who was up there other than on his days off on

  25   10 South.  He had been up there for quite some time.


   1   Q.  And at this time you first arrived on 10 South, were you

   2   alone or were you with Mr. Adler?

   3   A.  I was alone.

   4   Q.  And do you remember any conversation you had with Officer

   5   Pepe after getting into the unit?

   6   A.  Yes.  When I arrived, Officer Pepe initially opened up the

   7   large cell that's a recreation, used as a recreation area for

   8   the inmates.  It's just to the right of the door that you

   9   enter.  And we made some small talk, and then Officer Pepe

  10   said that he would go back to where Mr. Salim was housed and

  11   see whether or not he would come to a counsel visit.

  12            After that, after Officer Pepe went back to see

  13   Mr. Salim, Officer Pepe returned to me and said that the

  14   client was considering a counsel visit, he hadn't made up his

  15   mind.  Then Officer Pepe and I engaged in additional talk and

  16   Officer Pepe said that he would wait ten minutes and then go

  17   back to the client so that my time wasn't wasted waiting for

  18   him to decide whether he would see me or not.

  19            So Officer Pepe did indeed go back again the second

  20   time, and he returned, Officer Pepe returned to me and said

  21   that the client was praying so that Officer Pepe could not

  22   interfere with him or converse with him.  So we, Officer Pepe

  23   and I, chatted some more and then ultimately Mr. Adler

  24   arrived.

  25            And then Officer Pepe went back for the third time


   1   and returned to Mr. Adler and myself and said that the client

   2   had agreed to have a counsel visit, but that he, the client,

   3   Mr. Salim, needed to do something on a computer.  And Officer

   4   Pepe said that he suggested to the client, to Mr. Salim, if

   5   Mr. Adler and I would approve of this, that we should all just

   6   go into what was characterized euphemistically as a computer

   7   room.  That was a cell that was divided by a partition.  On

   8   one side was a computer, on the other side were a couple of

   9   chairs.  And I guess Officer Pepe asked that because it's

  10   rather cramped, so he wanted to make sure it was okay with us

  11   and we said sure.

  12            So then Officer Pepe placed myself and Mr. Adler in

  13   one side of the cell unit and unlocked the door, and then went

  14   to get Mr. Salim.

  15            MR. GARCIA:  At this time, Judge, I would like to

  16   read a stipulation and offer it as an exhibit.

  17            It has hereby been stipulated and agreed between the

  18   parties as follows:  Government Exhibit 4000 is a fair and

  19   accurate diagram of the 10 South Housing Unit at the

  20   Metropolitan Correctional Center, 150 Park Row, New York, New

  21   York.

  22            It is further stipulated and agreed that this

  23   stipulation may be received into evidence as a government

  24   exhibit at trial.  And I would offer the stipulation,

  25   Government Exhibit 4065, as well as the underlying diagram,


   1   Government Exhibit 4000.

   2            THE COURT:  Received.

   3            (Government Exhibits 4000 and 4065 received in

   4   evidence)

   5            MR. GARCIA:  And if we could have Government Exhibit

   6   4000 displayed on the screens, please.

   7   Q.  Mr. McAllister, let's just step back for a minute.  Look

   8   at the diagram that's now in front of you, and I direct your

   9   attention to the left, your left side of the diagram as you

  10   are looking at the diagram.

  11   A.  Yes.

  12   Q.  Is that the entranceway where you entered the unit that

  13   morning and first saw Officer Pepe?

  14   A.  Yes.

  15   Q.  Now, you mention that he first took you to a larger room,

  16   I think you said the recreation room.  You see that on the

  17   diagram?

  18   A.  Yes, that's directly to the right and it has "recreation"

  19   written in it, printed in it.

  20   Q.  In the lower left-hand corner of the diagram as you are

  21   looking at it?

  22   A.  Yes.

  23            THE COURT:  Left-hand corner?

  24            MR. GARCIA:  Lower left, yes.

  25            THE COURT:  Okay.


   1   Q.  You mentioned, Mr. McAllister, that you were taken to what

   2   was called a computer room, I believe you referred to?

   3   A.  Yes.

   4   Q.  Could you show us that on Government Exhibit 4000?

   5   A.  Yes.  As you enter, if you look to the left, as you are

   6   entering you see what is, I believe, a desk, and if you go all

   7   the way to the left again as you enter, this is toward the top

   8   of the diagram, you see where it says "attorney visit" and

   9   "inmate visit," that second room towards the top, the computer

  10   was located in what I think was located in what is

  11   characterized on the diagram as "attorney visit" and what is

  12   characterized as "inmate visit"; just below that is where

  13   Mr. Adler and I were placed by Officer Pepe.

  14   Q.  So from the top of the diagram, looking down, there's four

  15   rooms, attorney visit, inmate visit, attorney visit, inmate

  16   visit, it would be the top two rooms in that row?

  17   A.  That's correct.

  18   Q.  And where were you placed in the inmate visit room, the

  19   second room?

  20   A.  Yes, what is characterized as "inmate visit" on the

  21   diagram.

  22   Q.  Is there a window in the door to that room?

  23   A.  Yes, there is.

  24   Q.  Did there come a time that Salim was brought to this area?

  25   A.  Yes.


   1   Q.  And could you describe that for us?

   2   A.  Mr. Pepe brought Mr. Salim to what is characterized as the

   3   attorney visit room.  I recall that Mr. Salim was cuffed from

   4   behind.  I don't recall who carried Mr. Salim's material, but

   5   in any event, Mr. Salim was placed in the attorney visit room.

   6            He then backed up against the wall.  There is a slot,

   7   a fold-down slot, and he positioned his hands so he could be

   8   uncuffed.  And then Officer Pepe passed through the slot, I

   9   believe, whatever material Mr. Salim had brought to the

  10   counsel visit.

  11   Q.  And what happened after Mr. Salim was uncuffed?

  12   A.  After Mr. Salim was uncuffed, he began to put CD-Roms in

  13   the computer, and he seemed agitated about the fact that they

  14   weren't launching, they weren't operating properly.  And that

  15   had been one of the things that he had been complaining about.

  16   He spoke very little.

  17            He, as I said, seemed somewhat agitated and he was

  18   gesturing toward the machine as though, see what I mean, when

  19   he was showing us the malfunctioning or the absence of any

  20   functioning with respect to the CDs.

  21   Q.  And while he was doing this, while he's in the room with

  22   the CDs and the computer, do you recall what he was wearing?

  23   A.  He had on an orange jumpsuit.

  24   Q.  And at this time are you locked in the attorney -- in the

  25   inmate, what's labeled "inmate visiting room" here?


   1   A.  Yes.

   2   Q.  And would it be safe to say Mr. Salim is locked in the

   3   attorney visiting room?

   4   A.  Yes.

   5   Q.  And you mentioned that you had a window in the door of the

   6   inmate visiting room; is that right?

   7   A.  Yes.

   8   Q.  And could you see from your vantage point there whether

   9   there are any other visits going on at the time on that floor?

  10   A.  Ultimately, I did, yes.  There was another visit going on

  11   in the lower, in the cell that's marked "recreation" in the

  12   lower left-hand corner of the diagram.

  13   Q.  And do you recall who was in that room?

  14   A.  Yes, I do.  Two attorneys, Sam Schmidt, Josh Dratel, and

  15   their client, Mr. El Hage.

  16   Q.  You were describing your visit with Mr. Salim when he was

  17   putting this, trying to load the CDs on the computer.  Did

  18   there come a time when Salim indicated that he wanted to leave

  19   that room?

  20   A.  Yes.  I don't recall exactly how he conveyed that, but

  21   there did come a time when he conveyed to Officer Pepe that he

  22   wished to leave, and at that point Officer Pepe I think asked

  23   Mr. Salim whether or not the counsel visit was over and

  24   Mr. Salim indicated that it was not, that he needed to return

  25   to his cell and then bring back additional CDs.  And in fact,


   1   I think Mr. Adler, in the course of this exchange, asked

   2   whether or not we could now meet in one of the larger areas,

   3   but Mr. Salim indicated that there was more work to be done on

   4   the computer so that we stay where we were and we continue to

   5   meet there.

   6   Q.  And did Salim in fact leave the attorney visit room?

   7   A.  Yes, he did.

   8   Q.  And could you describe for us how that happened?

   9   A.  Well, initially he passed his legal material, a stack of

  10   material through the slot.  Mr. Pepe took it and I think

  11   placed it on a chair or the desk, and while Mr. Pepe, Officer

  12   Pepe was doing that, Mr. Salim removed his jumpsuit, stood up

  13   and sort of balled it up in front of him, and then Officer

  14   Pepe opened the door for Mr. Salim to depart.

  15   Q.  And prior to removing Mr. Salim from the room, did Officer

  16   Pepe handcuff Mr. Salim?

  17   A.  He did not.

  18   Q.  And did you see him handcuff or put Mr. Salim in any

  19   restraints after he left the room?

  20   A.  I did not see him put him in any restraints.

  21   Q.  Did you observe anything that went on in that area outside

  22   the attorney visiting room after Mr. Salim and Officer Pepe

  23   were out in that area?

  24   A.  Yes.  Officer Pepe was very briefly engaged in some

  25   activity I think around the desk.  I didn't pay attention to


   1   what that was.  And Mr. Salim strolled over to the large

   2   recreation cell and seemed to have a brief conversation with

   3   the people who were in there.  I couldn't hear any of that.

   4   And then Officer Pepe approached Mr. Salim from behind and

   5   indicated -- I didn't hear that either, but obviously

   6   indicated to Mr. Salim that he should return to the housing

   7   unit.

   8            And then I observed Mr. Salim walk down the corridor

   9   toward his cell.  Well, depart in that direction.  I couldn't

  10   see because that was around the corner.  And Officer Pepe was

  11   directly behind him.

  12   Q.  And on the diagram, again Government Exhibit 4000, would

  13   that be in the direction toward Cell 2, Cell 3 on the bottom

  14   of the diagram?

  15   A.  Yes.

  16   Q.  And from your visits to the MCC, did you know which cell

  17   Mr. Salim was assigned to at this time?

  18   A.  My recollection was that he was assigned to the last cell

  19   on that unit.

  20   Q.  And would that be on this diagram again Cell 6, on the top

  21   right past the center of the diagram in the middle, if you

  22   recall?

  23   A.  Well, I'm sorry to say I can't see Cell 6 on this.

  24   Q.  Very top.

  25   A.  Oh, yes, that's where it was, yes.  Yes.


   1   Q.  After Mr. Salim and Officer Pepe went around towards Cell

   2   2, what do you recall happening next?

   3   A.  Well, I recall that a great deal of time seemed to be

   4   going by because it would take, it seems to me, if I recall

   5   correctly, a minute or less to get back to that cell because  

   6   it's not that large a facility.

   7            So Mr. Adler and I began to talk about the time that

   8   was elapsing, and at some point I became aware of the phone

   9   ringing a great deal, and Officer Pepe -- the phone is located

  10   on the desk that is depicted here in the diagram which is just

  11   across almost, well, diagonally across from where we were

  12   situated, and we could see that desk from the window that was

  13   in the cell.  So that we became aware of the phone ringing and

  14   then more time going by and nobody coming to answer that

  15   phone.

  16            And then there are monitors as well on top of that

  17   desk and beneath it as well, and we became, Charles Adler and

  18   I then became aware of a great deal of activity that was

  19   occurring down on 9 South, a lot of people congregating.

  20            And then those people who had congregated down there,

  21   the prison officials, came up the small staircase that I

  22   described earlier and we became aware of their presence inside

  23   the vestibule that I described just outside the final door.

  24   And there was a lot of shouting and there was banging on the

  25   door.  It took some minutes before they apparently were able


   1   to enter.

   2   Q.  And did they in fact then enter the --

   3   A.  Ultimately they did get in.

   4   Q.  Mr. McAllister --

   5            THE COURT:  Could you see that or just hear it?

   6            THE WITNESS:  No, I saw that because there is also a

   7   little window, there is a window in our cell, as I said, but

   8   there is also a little window in that door.  The guard looks

   9   and sees who is out there before opening it.  So I could see

  10   people in that vestibule.

  11   Q.  You can see people in the vestibule and the door opens and

  12   people come in, is that fair?

  13   A.  Yes.

  14   Q.  Your best estimate from the time that Mr. Salim and

  15   Officer Pepe went towards Cell 2 to the time the Bureau of

  16   Prison people came through the inner door onto the floor,

  17   about how long had elapsed?

  18   A.  My best recollection was that was a good 15 minutes.

  19   Q.  And what happened after the Bureau of Prison personnel

  20   went through the inner door and onto this 10 South Unit?

  21   A.  Well, I observed a large number of people, Bureau of

  22   Prisons people, enter that housing area.  They were sort of in

  23   a crouched position, and a good number of them went down the

  24   corridor that Officer Pepe had gone down, out of my line of

  25   vision.


   1            And then a significant number sort of fanned out in

   2   the direction toward the attorney visit cell at the top, and

   3   the ones that I could observe, the prison officials that I was

   4   able to observe began rattling all of the doors, in fact, our

   5   door as well and at least two times.  And once they, I guess,

   6   determined that all those doors were locked, they also

   7   disappeared in the same direction that Officer Pepe and

   8   Mr. Salim had gone and the other officers had gone.

   9   Q.  And did you hear any noise at this time, any yelling?

  10   A.  I did not.

  11            THE COURT:  Excuse me.  May I ask you a question?

  12            To go from the attorney visiting area Salim was in so

  13   it is  --

  14            MR. RUHNKE:  Your Honor, we are having trouble

  15   hearing you.

  16            THE COURT:  Excuse me?

  17            MR. RUHNKE:  We are having trouble hearing you

  18   because you are not near your mike.

  19            THE COURT:  When Salim left the attorney visiting

  20   area.

  21            THE WITNESS:  Yes.

  22            THE COURT:  And you say that he was housed in Cell 6?

  23            THE WITNESS:  Yes.

  24            THE COURT:  Does he go in a clockwise or

  25   counterclockwise direction?


   1            THE WITNESS:  He is going in a counterclockwise

   2   direction.  The diagram is so busy, it is difficult for me to

   3   tell, but it is really an inverted L.  So when he leaves that,

   4   when he leaves that attorney visit room, he walks directly

   5   toward the bottom of the diagram and then makes a left turn.

   6   And when he makes that left turn going toward his cell, that's

   7   when he is out of my line of vision.

   8   BY MR. GARCIA:

   9   Q.  So he's going --

  10   A.  He's walking from the top of the diagram toward the bottom

  11   of the diagram.

  12   Q.  Towards Cell 2?

  13   A.  Yes, towards Cell 2, and then making what I guess would be

  14   a left turn to him and Officer Pepe and going down that

  15   corridor towards the right side of the diagram.

  16            THE COURT:  Past the lieutenant's office, past the

  17   lab library?

  18            THE WITNESS:  Yes.

  19   BY MR. GARCIA:

  20   Q.  And this square object right across from the bottom,

  21   inmate visiting room, you know what that is on the diagram, if

  22   you know?

  23   A.  I'm sorry, across from the visiting room?

  24   Q.  The bottom, inmate visiting room, there is a little

  25   square.


   1   A.  Oh, I don't know.  I don't recall what that is, actually.

   2   Q.  Mr. McAllister, after you saw the guards enter, check the

   3   doors in the area you were in, what do you remember seeing

   4   next?

   5   A.  As I said, the guards who were checking the doors then

   6   also disappeared for a matter of moments, and the next thing I

   7   remember seeing is two guards dragging a person who I believed

   8   to be Mr. Salim, and he may or may not have been unconscious,

   9   but he was certainly limp, and he was face-down and his arms

  10   were at his sides.  He was being dragged.

  11            He was dragged around the corner and the guards who

  12   were dragging him stopped very close to where the window was

  13   in the cell that Mr. Adler and I were located, and there was

  14   sort of a trail of blood as well beneath what I believe was

  15   Mr. Salim.  Then I observed one of the guards that had his

  16   back to me, but closest to the cell, remove a key, a small,

  17   sort of blunt key from his key ring and jab what I again think

  18   was Mr. Salim in the corner of the eye.  And then there was a

  19   blood spurt that occurred.

  20            And then the officers continued to drag Mr. Salim to

  21   what is the very top of that diagram on the left to sort of

  22   almost the end of the corridor.

  23   Q.  And what do you recall seeing after that?

  24   A.  Well, after that, shortly thereafter, I saw Officer Pepe

  25   walking, being escorted out by four people, two just slightly


   1   in front and two in the back.  He was covered with blood and

   2   there was an object protruding from his eye.

   3   Q.  And what happened after you saw Officer Pepe walking by?

   4   A.  Well, there was a lot of, clearly there was a lot of

   5   commotion, but ultimately someone opened the cell that we

   6   were, Mr. Adler and I were located in and took our names and

   7   phone numbers and let us out.

   8   Q.  And do you remember approximately what time you left the

   9   10 South Unit that morning?

  10   A.  I think I left that unit at about 10:45 a.m.

  11   Q.  You mention that you had met Officer Pepe prior to this

  12   occasion.

  13   A.  Yes.

  14   Q.  And had you seen him interact with the inmates on 10

  15   South?

  16   A.  Yes.

  17   Q.  And could you generally describe for us your impression of

  18   how he treated the prisoners?

  19   A.  Exceptionally courteously.  He was really very well

  20   regarded and he treated them well.

  21   Q.  And would he do certain things for the prisoners that

  22   other guards would not do?

  23   A.  That was my understanding.

  24   Q.  And do you have any examples of types of things?

  25   A.  One example was that he occasionally didn't cuff them with


   1   short visits, and I think that he would, you know, he would,

   2   again, just typical of his behavior was his going back to the

   3   client on the day that we visited to bring a message back and

   4   forth about whether we would be visiting.  That would be not

   5   usual behavior.

   6   Q.  And was it your understanding that he would also do

   7   personal things for them such as heat water for them and

   8   things like that?

   9   A.  I heard that, yes.

  10   Q.  Is it fair to say that you never saw him mistreat any

  11   inmate in any way?

  12   A.  Never.

  13            MR. GARCIA:  I have nothing further, Judge.


  15   BY MR. RUHNKE:

  16   Q.  Mr. McAllister, good morning.

  17   A.  Good morning.

  18   Q.  There was a time that we were co-counsel in this case in

  19   the sense that we each represented defendants in this case,

  20   correct?

  21   A.  That's right.

  22   Q.  And shortly after the assault by Salim on Officer Pepe,

  23   you were relieved as counsel; is that correct?

  24   A.  That's true.

  25   Q.  And Mr. Adler, also?


   1   A.  Yes.

   2   Q.  And since that time, Mr. Salim has acquired new attorneys;

   3   is that correct?

   4   A.  Yes.

   5   Q.  And when you mention the trial starting January 5, you are

   6   talking about the trial that this jury has now heard; is that

   7   correct?

   8   A.  Yes.

   9   Q.  As a result of the change in attorneys, was Mr. Salim

  10   severed from this trial, which is a legal term meaning he was

  11   going to be tried later instead of with his co-defendants?

  12   A.  That's true.

  13   Q.  Regarding Officer Pepe, could you give us an estimate, by

  14   way of background, how many times you think you were on 10

  15   South prior to November 1?

  16   A.  I would go there at least once a week over the course of

  17   the two years and sometimes twice a week, except when I was on

  18   vacation, which was only twice in the course of the two years,

  19   and maybe a trial here or there.  But I was there very

  20   frequently.

  21   Q.  Does 40 or 50 times a fair estimate?

  22   A.  Oh, easily, over the course of the two years, yes.

  23   Q.  Could it be more?

  24   A.  Probably more.

  25   Q.  And when you were on 10 South, were there occasions when


   1   you saw that Officer Pepe appeared to be the only officer on

   2   that unit?

   3   A.  Yes.

   4   Q.  Do you recall that there were from time to time what were

   5   called codefendant meetings?

   6   A.  Yes.

   7            MR. RUHNKE:  Your Honor, could I have Government

   8   Exhibit 4000 placed on the screen again, please.

   9   Q.  Looking at the diagram of 10 South, Mr. McAllister, there

  10   are two rooms that are designated recreation; is that correct?

  11   A.  Yes.

  12   Q.  And were those larger rooms also used for attorney-client

  13   visitation?

  14   A.  Yes, they were.  They were the ones that we used most

  15   frequently.

  16   Q.  And in those rooms there would be a table, some plastic

  17   chairs, and you would meet under those circumstances, correct?

  18   A.  Yes.

  19   Q.  Prior to November 1, 2000, were the circumstances of your

  20   visits with a client generally what are referred to as contact

  21   visits?

  22   A.  Yes.  Every single visit, as far as I recall, was what

  23   could be characterized as contact visits.  I think that was

  24   the first and only visit that I had that was not.

  25   Q.  And by "contact visit" do you understand me to mean where


   1   you would sit basically across from your client, your client

   2   would not be shackled, there would be no barriers between you?

   3   A.  That's right.

   4   Q.  The procedure you were able to observe on 10 South when a

   5   client came to a contact visit such as we described -- and

   6   let's take as an example the recreation room, the first

   7   recreation room on the diagram in the lower left corner?

   8   A.  Yes.

   9   Q.  Generally speaking, with the exceptions that you described

  10   that Officer Pepe did not cuff clients, were clients generally

  11   cuffed from behind when they came to a meeting with counsel?

  12   A.  In general, yes.

  13   Q.  Prior to having the cuffs taken off, would the clients be

  14   brought into the attorney room still cuffed and the door

  15   locked behind you?

  16   A.  Yes.  As far as I recall, each time.

  17   Q.  And would then the procedure be for the client to back up

  18   to a slot in the door and have the cuffs removed?

  19   A.  Yes.

  20   Q.  And at the conclusion of such a meeting, was the procedure

  21   that once the meeting was over and you got the guard's

  22   attention that the meeting was over, that the client would

  23   again back up to the slot in the door, be cuffed from behind

  24   before the door was opened and the attorneys were let out?

  25   A.  Generally, yes.


   1   Q.  And there were also times, as you mentioned earlier, that

   2   there were co-counsel meetings, codefendants meetings that

   3   several, some or all of the defendants named in the case and

   4   some or all of the attorneys would meet together to discuss

   5   the case and issues concerning the case?

   6   A.  Yes.

   7   Q.  Were there times during such meetings that you can recall

   8   when meetings were over and you couldn't even get the

   9   attention of a guard anywhere on 10 South?

  10   A.  Oh, yes.  Yes, that was not very unusual.

  11   Q.  That the meeting would be over and people would be

  12   yelling, we're done, we're done?

  13   A.  Yes.

  14   Q.  And no one would come at all?

  15   A.  Exactly.

  16   Q.  Do you recall occasions where people would actually hold

  17   up a legal pad in front of the video monitor in the hope that

  18   that would bring people?

  19   A.  I do remember that.

  20   Q.  And we would often or counsel would often wait for ten or

  21   fifteen minutes before anyone would even respond to the idea

  22   that people were yelling and screaming?

  23   A.  That's true.

  24   Q.  I want to take you more deliberately through the

  25   procedures that Mr. Garcia described on entry into the


   1   Metropolitan Correctional Center as of up to November 1, 2000.

   2            When you were going to 10 South -- let me back up a

   3   bit.  There is an area on the third floor of the Metropolitan

   4   Correctional Center which is the general attorney-client

   5   interview area; is that correct?

   6   A.  That's true.

   7   Q.  And generally, attorneys go up to the third floor, the

   8   client is called, the client is brought down to the third

   9   floor and the meeting occurs in one of many, many rooms in

  10   that third floor area, correct?

  11   A.  That's true.

  12   Q.  But there was a special procedure for the high security

  13   areas on 9 South and 10 South; is that correct?

  14   A.  That's right.

  15   Q.  For example, were you permitted, if you can recall, to

  16   even bring a briefcase up to 10 South?

  17   A.  No.

  18   Q.  Were you permitted to bring any money on your person?

  19   A.  No, no personal items at all.

  20   Q.  Did you have to leave your wallet in a locker?

  21   A.  Yes.

  22   Q.  And as you entered the Metropolitan Correction Center,

  23   which is at 150 Park Row, around the corner, you walk through

  24   a door and the first thing you would do would be to fill out a

  25   form saying you were here to visit with an inmate, correct?


   1   A.  That's true.

   2   Q.  And on the form you would have to answer a series of

   3   questions -- the name of the inmate, the inmate's number, the

   4   inmate's location within the institution, if you knew it --

   5   and also check a long list of things that you did not have,

   6   weapons, firearms, explosives, things of that nature, correct?

   7   A.  Yes.  Yes.

   8   Q.  You would then give the form to one of the corrections

   9   officers at the front desk, who would then issue you a badge,

  10   which was an attorney pass, and a locker key, which would

  11   allow you to store personal items under lock in the front of

  12   the lobby to the MCC, correct?

  13   A.  Yes.  The first is you put everything on the conveyor belt

  14   whether you take it up or not.

  15   Q.  Even though you weren't going to take a briefcase up, the

  16   officers x-rayed to see what was left behind in the locker?

  17   A.  Yes.  Everything is x-rayed that comes into the facility,

  18   whether you take it with you or not.

  19   Q.  You also, no matter how many times you have to be there,

  20   you have to display an I.D. proving you are an attorney and

  21   usually a second form of picture I.D., correct?

  22   A.  Yes, you have to in fact give it to the prison officials.

  23   Q.  Once you have gone through that preliminary step, is the

  24   next step that you yourself pass through a metal detector?

  25   A.  Yes.


   1   Q.  And if the metal detector goes off, are you then scanned

   2   with one of these hand-held wands?

   3   A.  Yes.

   4   Q.  At that point, do you also have your hand stamped with an

   5   invisible fluorescent stamp?

   6   A.  Yes.

   7   Q.  And the next thing you do, do you then sign in a book name

   8   of inmate, time you arrived?

   9   A.  Yes.

  10   Q.  The number of inmate, etc.

  11   A.  Yes, the lobby book, yes.

  12   Q.  And at that point, as you described it, you go down a

  13   short corridor and there is a locked door that is operated by

  14   a buzzer from the front desk, correct?

  15   A.  Yes.

  16   Q.  And you are buzzed through that door, and now you go into

  17   a second area, where I think there is some soda machines and

  18   things like that?

  19   A.  Yes.

  20   Q.  And there is a large darkened window to some kind of

  21   control center next to a large door to your right as you go

  22   in, correct?

  23   A.  Yes.

  24   Q.  And you have to wait at that door until the control

  25   officer clicks that door open, correct?


   1   A.  Yes.

   2   Q.  And now you are into a hallway leading up to a second

   3   large metal door, correct?

   4   A.  Yes.

   5   Q.  Is it your understanding that the system is set up so that

   6   both of those doors cannot be opened at the same time?

   7   A.  That's true.

   8   Q.  So you wait for the second door to open, and now you are

   9   into a corridor, still next to a window, where there is an

  10   officer inside in some kind of control station, correct?

  11   A.  Yes.

  12   Q.  At that point, do you then show your hand under a blue

  13   light --

  14   A.  Yes.

  15   Q.  -- device to show that you have a stamp and that you have

  16   been approved through?

  17   A.  And the paperwork as well.

  18   Q.  And the paperwork authorizing your visit.

  19            And then you simply wait for an elevator, but do you

  20   have control over the elevator, or must you wait for a staff

  21   person to escort you on the elevator?

  22   A.  No, you have to -- there's no control over the elevator

  23   for the visitors.  You have to wait for a staff member.  In

  24   fact, there is an elevator designated for inmates and

  25   visitors.


   1   Q.  Once someone comes to take you up to the ninth floor, now

   2   you are in a corridor between two inmate units on the ninth

   3   floor; is that correct?

   4   A.  Yes.

   5   Q.  9 South and 9 North, 9 South obviously facing towards the

   6   south end of MCC, 9 North facing the north end of MCC.  And

   7   now you come to another door?

   8   A.  Yes.

   9   Q.  Which carries a designation -- have you seen the letters

  10   SHU on that door?

  11   A.  Yes.

  12   Q.  Do you understand those letters to stand for Special

  13   Housing Unit?

  14   A.  Yes, I do.

  15   Q.  You have to wait by that door until that is opened for

  16   you, correct?

  17   A.  Yes.

  18   Q.  And as you enter, now you are entering onto the entry area

  19   on 9 South?

  20   A.  Yes.

  21   Q.  You again sign in at that point; is that correct?

  22   A.  Yes.

  23   Q.  And you described in front of you a metal grate door?

  24   A.  Grill door, yes.

  25   Q.  A grill door that's locked.  Before you are able to go,


   1   though, from signing in through that metal door, are you again

   2   scanned with a metal detector, hand-held metal detector by an

   3   officer?

   4   A.  Yes, you have to remove any items that you may have,

   5   although you are only permitted to have a pen and whatever

   6   legal material you are carrying.  And your legal material is

   7   usually inspected and you are scanned, one is scanned again

   8   with a wand.

   9   Q.  And once you have been scanned and approved by the officer

  10   who has done that procedure, then the grate or the barred

  11   door, heavy barred door that you described is unlocked and you

  12   walk onto what is the 9 South unit; is that correct?

  13   A.  Yes.

  14   Q.  Are there 9 South inmates wandering around 9 South?

  15   A.  There are not.

  16   Q.  And from 9 South you walk across the unit, and is there

  17   like a half a flight of stairs that takes you up to 10 South?

  18   A.  Yes.

  19   Q.  You go up to the top of 10 South.

  20            Do you remember how you have to get the attention of

  21   the 10 South officer or the control officer?

  22   A.  Yes.  You pick up a phone and hang it up again.

  23   Apparently that signals the person inside that, or somebody,

  24   to click that door open.

  25   Q.  And that door clicks open.  It is a heavy metal door that


   1   you can't see out of; is that correct?

   2   A.  That's true.

   3   Q.  And now you are in what you called the vestibule; what

   4   corrections officials would probably call a sallyport?

   5   A.  Yes.

   6   Q.  To 10 South, correct?

   7            And looking at the diagram, where you have gotten to

   8   now is -- do you see the area on the far left of the diagram

   9   designated "office"?

  10   A.  Yes.

  11   Q.  And just above the office do you see the small sallyport

  12   area and the two doors indicated that we are talking about?

  13   A.  Yes.

  14   Q.  Now, the second door, the one that goes right onto 10

  15   South Unit, that has a window in it, correct?

  16   A.  Yes.

  17   Q.  And the procedure is you stand by the window until whoever

  18   the officer is who is on duty comes and opens that door with a

  19   key, correct?

  20   A.  Yes.

  21   Q.  And now you are actually on the 10 South Unit once you go

  22   through that second door at the end of the sallyport?

  23   A.  Yes.

  24   Q.  And do you then sign there again and display your

  25   paperwork to the officers at the desk or officer on duty?


   1   A.  Yes, you give your paperwork to that officer and there is

   2   a sign-in log located on the desk and you sign in.

   3   Q.  You will see something designated -- it is a little hard

   4   to read, but it says officers desk.  Is that the area you are

   5   talking about?

   6            THE COURT:  Officers station.

   7            MR. RUHNKE:  Officers station, yes, your Honor.

   8   A.  Yes.

   9   Q.  And you made reference earlier to having seen some video

  10   screens.  Where are those located in relation to officers

  11   station?

  12   A.  Those, of course, I couldn't see are underneath the desk

  13   that the officer can look at if he is seated at the desk, and

  14   some are above it toward the back of that station.

  15   Q.  So now you are onto 10 South, and generally speaking, you

  16   would then be placed in one of the visiting areas, most

  17   usually the large areas designated "recreation"?

  18   A.  Yes, almost always.

  19   Q.  And if those were full for any reason, would you

  20   occasionally meet with a client, or did you occasionally meet

  21   with Mr. Salim in what are designated attorney visit, inmate

  22   visit rooms?

  23   A.  Yes, that happened on two or three, four occasions the

  24   most, fortunately.

  25   Q.  But even on those occasions, was the meeting contact in


   1   the sense that, instead of being in separate rooms, you were

   2   all kind of knee-to-knee in a small room?

   3   A.  Yes, each time.  It is a very tiny area, but we were

   4   placed in the same side, not separated by anything.

   5   Q.  And generally speaking, the procedure would be that the

   6   client would be brought, handcuffed from behind, would step

   7   into the room, the door would be locked and the client would

   8   then be unhandcuffed so you could continue with your meeting

   9   and the client would have free hands and be able to handle

  10   documents, etc., correct?

  11   A.  That's true.

  12   Q.  And on leaving 10 South, essentially did you do the

  13   reverse procedure?

  14   A.  Yes, one would sign the log that's located on the station.

  15   Q.  Signing out?

  16   A.  Sign out.  Sign the log, obviously pass through those two

  17   doors and down the flight of stairs, pass the iron gate.

  18   Q.  Someone would have to open the gate for you?

  19   A.  Somebody would have to open the gate with a key.  That's

  20   another thing that requires a key as opposed to clicking or

  21   electronically.  And then there is yet another log to be

  22   signed out.

  23   Q.  And then you had another door onto the corridor by the

  24   elevators?

  25   A.  Yes.


   1   Q.  You would then wait for the elevator?

   2   A.  Yes.

   3   Q.  And when you got down to the ground floor, the first floor

   4   of the Metropolitan Correctional Center, did you again have to

   5   show your hand that had the stamp on it?

   6   A.  Yes.

   7   Q.  And then go through those two doors that we described that

   8   can't be opened at the same time?

   9   A.  Yes.

  10   Q.  And finally, you would be able to go out the door?

  11   A.  Yes.  If I recall correctly, there was even yet another

  12   station out there at the lobby where you would show your hand

  13   yet again.

  14   Q.  You had to show your hand one more time?

  15   A.  And sign out.

  16   Q.  Throughout the period of time you also have to have

  17   displayed a badge identifying you as an attorney on an

  18   approved visit, correct?

  19   A.  Yes.

  20   Q.  Did Mr. Salim consider himself falsely accused in this

  21   case?

  22   A.  Yes.

  23   Q.  Did he tell you he was falsely accused?

  24   A.  Yes.

  25   Q.  Did Mr. Salim complain to you about the violation of his


   1   legal rights?

   2   A.  Yes.

   3   Q.  Did Mr. Salim -- you described him being unhappy with your

   4   representation.  Did he complain about your representation to

   5   a judge?

   6   A.  Yes.

   7   Q.  Did he complain about Mr. Adler's representation to a

   8   judge?

   9   A.  Yes.

  10   Q.  And Mr. Goelzer's representation?

  11   A.  Yes.

  12   Q.  As the time for trial approached, did you observe

  13   Mr. Salim to start becoming increasingly angry and frustrated

  14   and upset about events?

  15   A.  Yes.

  16   Q.  Do you recall -- and I'm not going to ask you about the

  17   contents -- do you recall that there came a time when a

  18   meeting was held on the record, in the sense that there was a

  19   transcript made of it, involving yourself, Mr. Adler and

  20   Mr. Salim before what is called a magistrate judge in this

  21   district?

  22   A.  I recall that.

  23   Q.  And do you recall that the subject of that was whether or

  24   not Mr. Salim should have his attorneys replaced, should have

  25   new attorneys?


   1   A.  Yes.

   2   Q.  Do you recall the date, the exact date on which that

   3   occurred?

   4   A.  I don't.  It was late October as far as I recall.

   5            MR. RUHNKE:  Your Honor, may I approach the witness

   6   and show him a document?

   7            THE COURT:  Yes.

   8   BY MR. RUHNKE:

   9   Q.  Mr. McAllister, showing you a document that's been marked

  10   K.K.M. 2 for identification, does looking at that document

  11   help refresh your recollection as to when the conference

  12   occurred with regard to replacing attorneys?

  13   A.  Yes.

  14   Q.  What was that date?

  15   A.  October 26th of 2000.

  16   Q.  Was Mr. Salim happy with the outcome of that conference?

  17   A.  No.

  18   Q.  You stated that your representation of Mr. Salim began on

  19   approximately December 21, 1998.  Are you aware of the fact,

  20   as you certainly are, that Mr. Salim had been extradited from

  21   Germany?

  22   A.  That's true.

  23   Q.  Are you aware of the fact that, as a condition of his

  24   extradition, the United States agreed that it would not seek

  25   the death penalty as to Mr. Salim?


   1   A.  Yes, that's true.

   2   Q.  You made reference to a computer in what was described as

   3   the computer room which is on GX4000, the attorney visit area

   4   on the top.  Did the computer that was in that room have a

   5   keyboard that the inmate could use?

   6   A.  No.

   7   Q.  Did it have a mouse that could be used to access anything

   8   on the screen?

   9   A.  No.

  10   Q.  It may be obvious:  Was there Internet access connected to

  11   that computer?

  12   A.  No.

  13   Q.  Was the computer a particular source of frustration to

  14   Mr. Salim?

  15   A.  Yes.

  16   Q.  Do you know what Mr. Salim's educational background is?

  17   A.  My understanding is that he was educated as an electrical

  18   engineer.

  19   Q.  And did he seem to have good computer skills?

  20   A.  Yes.

  21   Q.  Just so it is clear, looking on Government Exhibit 4000,

  22   there were questions asked about the route likely taken or the

  23   route that you saw.

  24            First of all, if I were to suggest that the square

  25   object that Mr. Garcia pointed out was a column or pillar,


   1   would that help you remember what that was?

   2   A.  Yes.

   3   Q.  And that is right next to the second inmate visit area?

   4            THE COURT:  You talked of seeing things through the

   5   window in your door and through the window of another door.

   6            THE WITNESS:  Yes.

   7            THE COURT:  Could you just indicate what the line of

   8   sight was.

   9            THE WITNESS:  Yes.  From the inmate visit, there's a

  10   window there and it is diagonal to where just what would be to

  11   the right, to the right of the object, to the bottom lower

  12   than the guard station.  The door that one enters that's

  13   depicted in this diagram has a rectangular window, plexiglass

  14   window in it as well, so one can see through the square window

  15   from the inmate visit to the rectangular plexiglass window

  16   that's in the door that is -- the window is in the final door

  17   that one would enter to get to the facility, sort of a

  18   diagonal line.

  19            THE COURT:  There is an indication that is something

  20   called officers station?

  21            THE WITNESS:  Yes.

  22            THE COURT:  And then there is something which appears

  23   to be a desk.  Is that in fact a desk?

  24            THE WITNESS:  Yes.

  25            MR. RUHNKE:  Your Honor, can I just inquire, I was


   1   going to inquire into that area.

   2            THE COURT:  All right.

   3   BY MR. RUHNKE:

   4   Q.  So just so it is clear, the area designated "officers

   5   station" is a desk of approximately waist high, would that be

   6   a fair description?

   7   A.  Yes.

   8   Q.  And as you sit in the area, if we count from the top of

   9   these four small rooms, the first room was the so-called

  10   computer room, the second room is the room that you and

  11   Mr. Adler were in, correct?

  12   A.  Yes, the second from the top.

  13   Q.  Right.  And there is a door to that room with one of these

  14   slots in it, but rather a large normal sized window in that

  15   door; is that correct?

  16   A.  Yes.

  17   Q.  And am I correct that there is a very clear line of sight

  18   from that room to the window on the inner door opening onto 10

  19   South?

  20   A.  Yes, there is a clear line of sight.  Again, although it

  21   is unclear in the diagram, this guard's station is very, is

  22   lower.  It is waist high at most, so one can see diagonally

  23   from one window to the other.

  24   Q.  So we are 100 percent clear, you can see two doors in what

  25   will probably be described as a sallyport by most of the


   1   correction officers?

   2   A.  Yes.

   3   Q.  The outer door, the one that is onto 9 South, does not

   4   have a window in it, correct?

   5   A.  That does have a window.

   6   Q.  But the inner door, the one that opens directly onto 9

   7   South, does have an window, yes?

   8   A.  Yes, it does.

   9   Q.  As you indicated, that is so the officer inside can see

  10   who is trying to gain access onto 10 South; is that correct?

  11   A.  Yes.

  12   Q.  We see Cell No. 1 at the top, and touching it, adjacent to

  13   it, Cell No. 6; do you see that on the diagram?

  14   A.  Yes.

  15   Q.  Just again to get the sequence exactly right, in order to

  16   get to Cell No. 6, is it necessary to go around the entire --

  17   from the attorney area which we are describing, it is

  18   necessary to go around the entire perimeter of 10 South to

  19   gain access to Cell No. 6; is that correct?

  20   A.  Yes.  It would be in the nature of a U exactly.  The

  21   cells, as you can see from the diagram, back up on one

  22   another.  So, yes, you would go all around.

  23   Q.  Have you been on 10 South since November 1?

  24   A.  No.

  25   Q.  Final area.  You described seeing an individual whom you


   1   believed to be Mr. Salim dragged along the ground by two

   2   officers; is that correct?

   3   A.  Yes.

   4   Q.  And you described him as being face-down and leaving a

   5   trail of blood behind him?

   6   A.  Yes.

   7   Q.  And am I correct that you observed Mr. Salim basically

   8   dropped on the floor, placed on the floor face down; was he

   9   moving in any way?

  10   A.  Not at all.

  11   Q.  Was he resisting in any way?

  12   A.  No.

  13   Q.  Did he appear to you to be conscious?

  14   A.  He didn't appear to be conscious.

  15   Q.  Did it appear to you that he might even be dead?

  16   A.  That was a possibility.

  17   Q.  And tell the jury again what you saw an officer do.

  18   A.  Well, just before they -- well, I observed this individual

  19   being dragged.  He was already face down, being dragged around

  20   the corner, and the two officers --

  21            THE COURT:  Around which corner?

  22            THE WITNESS:  Around the corner from the direction of

  23   where, say, the storage area is when you come up to see where

  24   the square is, which is a column.

  25            THE COURT:  Yes.


   1            THE WITNESS:  Dragged from around that corner in the

   2   direction of the attorney visit cell.  And in fact, the

   3   officers stopped approximately between the attorney visit cell

   4   and the inmate visit cell, Mr. Adler and I having been located

   5   in the inmate visit cell.

   6   BY MR. RUHNKE:

   7   Q.  You are talking about the second room drawn on the

   8   diagram, correct?

   9   A.  Yes, right about there.

  10   Q.  And when Mr. Salim was -- when the officer stopped

  11   dragging him at that point, what did you see?

  12   A.  One of them removed -- the one that had his back to us,

  13   that was closest to us but with his back to us, removed a key

  14   from a key ring and jabbed it toward the eye.

  15   Q.  Did you see Mr. Salim do anything to provoke that?

  16   A.  No, I didn't.

  17   Q.  At the time this was going on, were the officers shouting

  18   at you and Mr. Adler not to look, to turn around?

  19   A.  Not at that point, but they did.  After what I described

  20   occurred with the key, they then resumed dragging Mr. Salim

  21   toward -- well, who I thought was Mr. Salim -- toward the top.

  22   Q.  Towards Cell No. 1?

  23   A.  Towards Cell No. 1, right.  And then they, my best

  24   recollection is they dragged him pretty close to as far as he

  25   could be dragged in that corridor, and it was at that point, I


   1   guess, that they became aware of Mr. Adler and I and it was at

   2   that point that they began shouting the things that you have

   3   just asked me about.

   4   Q.  Don't look, turn around?

   5   A.  Don't look, sit down.

   6   Q.  It is your impression that they weren't aware that you

   7   were even there until that point?

   8   A.  I think that's probably true.  Well, right, I think so.

   9            MR. RUHNKE:  I have no further questions, your Honor.

  10            MR. GARCIA:  Briefly, Judge.


  12   BY MR. GARCIA:

  13   Q.  In your last exchange of answers you were saying you think

  14   that's probably true, they didn't know you were there.  Do you

  15   know if they knew you were there or not?

  16   A.  I don't know that.

  17   Q.  Mr. Ruhnke was asking you when they brought who you

  18   believed to be Salim by the cell door, that at that time you

  19   didn't know if he was dead or not.  Remember Mr. Ruhnke asking

  20   you that in substance?

  21   A.  Right.  I didn't see him move.

  22   Q.  He wasn't dead, was he?

  23   A.  No.

  24   Q.  In fact, you saw him shortly after this incident, didn't

  25   you?


   1   A.  Yes, I did.

   2   Q.  Prior to November 8th when you were relieved?

   3   A.  Yes, I did.  I had a visit with him before being relieved.

   4   Q.  And did Mr. Salim during that meeting in early November

   5   appear to have any serious injuries near his eye?

   6   A.  No.

   7   Q.  Mr. Ruhnke also asked you extensively about the security

   8   procedures for getting into the MCC and he walked you through

   9   those.  Do you recall that?

  10   A.  Yes.

  11   Q.  And you went through a certain number of doors, you went

  12   through a certain number of checks; is that correct?

  13   A.  Yes.

  14   Q.  You had to give I.D., you went through a metal detector,

  15   you signed into a number of logs; is that right?

  16   A.  Yes.

  17   Q.  And that was basically standard procedure for every time

  18   you went to the MCC to visit Mr. Salim, is that fair?

  19   A.  Yes.

  20   Q.  And as far as you can recollect, that was the procedure

  21   that was followed on November 1; is that correct?

  22   A.  Yes.

  23   Q.  And that was the date that you saw Officer Pepe with the

  24   object sticking out of his eye?

  25   A.  Yes.


   1            MR. GARCIA:  Thank you.

   2            Nothing further.

   3            MR. RUHNKE:  Nothing additional, your Honor.

   4            THE COURT:  We'll take a recess at this point.

   5            (Jury exits)

   6            THE COURT:  I have some questions I would like to ask

   7   outside the presence of the jury.  I am still having

   8   difficulty with I guess the line of sight problem.

   9            The window on the inner door, you mentioned that

  10   window.

  11            THE WITNESS:  Yes.

  12            THE COURT:  Is that entire door glass?

  13            THE WITNESS:  No, no.  It is a vertical rectangle

  14   toward the -- from where we were looking, it would be toward

  15   the right.  It would be toward where I think the lock was

  16   located and the handle.

  17            THE COURT:  And the window in the inmate visit room

  18   that you were in, where and what are the approximate

  19   dimensions of that window?

  20            THE WITNESS:  If I recall correctly, that window took

  21   up virtually the whole upper half of the door.  The bottom was

  22   I think metal with the slot.  The inmate could stick his hands

  23   through to be cuffed or uncuffed and the upper portion of that

  24   is plexiglass.  So my best recollection is about just half,

  25   the top half of the door is plexiglass -- a good portion of


   1   it, as I recall, is plexiglass.

   2            THE COURT:  When you saw Salim -- the person you

   3   thought to be Salim being dragged, I suppose he was being

   4   dragged in the area going --

   5            Tell me.

   6            THE WITNESS:  Well, where the column is, just to the

   7   right if you look at the diagram is the corridor, the

   8   corridor, in fact, down which Officer Pepe and Mr. Salim

   9   disappeared from our line of sight when Mr. Salim was being

  10   returned to his cell.

  11            THE COURT:  Yes.

  12            THE WITNESS:  So it was from that corridor that is

  13   toward the right of the diagram, around that corner between

  14   let's -- I think between the column and the inmate visit --

  15   this diagram depicts, I guess, it seems to me must depict the

  16   door as swung open.

  17            THE COURT:  Yes.  It confused me at first.  I realize

  18   now all of these arcs are simply to indicate which way a door

  19   opens.

  20            THE WITNESS:  Yes.

  21            THE COURT:  In fact when the doors are closed, that

  22   is a clear passageway.

  23            THE WITNESS:  Exactly.

  24            THE COURT:  What I am trying to find out is what your

  25   line of sight was, especially your line of sight of the floor.


   1            THE WITNESS:  My line of sight, obviously it is clear

   2   from the diagram I certainly couldn't see anything around the

   3   corner sort of going toward the right of the diagram, but I

   4   became aware of the guards and the person who I thought was

   5   Mr. Salim once they rounded the corner because Mr. Salim was

   6   being dragged, once he cleared the corner, was actually being

   7   dragged in our direction, Mr. Adler's and I.  In fact, he was

   8   ultimately dragged beyond us.

   9            THE COURT:  You recall he was dragged, looking at

  10   this diagram, to the right or the left of the column, if you

  11   remember?

  12            THE WITNESS:  I, truly I don't for sure, but I think

  13   it was between the -- I think it was to the right of the

  14   column as we look at the diagram, but I'm not 100 percent sure

  15   of that.

  16            THE COURT:  Now, there is no exit, is there, as you

  17   go in that direction?

  18            THE WITNESS:  There is a door -- the answer is I'm

  19   certainly not aware of an exit, no.

  20            THE COURT:  Are there going to be any pictures or

  21   anything which is going to clarify this?

  22            MR. RUHNKE:  Your Honor, if you like, I have a

  23   photograph here which I think could answer every question,

  24   which I will show to Mr. McAllister when the jury returns as

  25   an additional exhibit.


   1            MR. GARCIA:  Your Honor, the government intends to

   2   offer the photo he is holding through the next witness.

   3            THE COURT:  Through the next witness?

   4            Maybe I should be more patient, but I just confess

   5   that at the present moment I have a number of questions as to

   6   what it is --

   7            Mr. McAllister, I'm not in any way suggesting that

   8   you are not giving a fair and accurate account of what you

   9   saw, but the mechanics of it I have difficulty with.

  10            THE WITNESS:  So do I in the way the diagram is

  11   constructed.

  12            I should say that I certainly couldn't see everybody

  13   in the vestibule.  There were at least two or three people

  14   that were closest and banging on the door.

  15            THE COURT:  But you could see the floor?

  16            THE WITNESS:  Absolutely.  There is a clear line of

  17   vision.

  18            THE COURT:  To the floor?

  19            THE WITNESS:  I'm sorry.  To the floor in front of

  20   the cells?  Yes.

  21            THE COURT:  To the floor that you saw, you described

  22   while Mr. Salim was being dragged.

  23            THE WITNESS:  Yes.

  24            THE COURT:  So he was on the floor?

  25            THE WITNESS:  He was on the floor face-down.


   1            THE COURT:  You could see that?

   2            THE WITNESS:  I could see that.

   3            THE COURT:  All right.

   4            MR. RUHNKE:  Your Honor, could I have leave to have

   5   some brief recross of Mr. McAllister?  I'll show him the

   6   photographs and we will clear it up for the jury.

   7            MR. GARCIA:  We will do that with the next witness,

   8   Judge.

   9            MR. RUHNKE:  If your Honor is confused, the jury

  10   might be confused, and I would like the opportunity to ask

  11   Mr. McAllister to explain exactly what he was talking about.

  12   I thought it was clear, but apparently it is not.  I'm asking

  13   for leave to ask a couple of questions.

  14            THE COURT:  Well, it isn't.  The answer to your

  15   question is, yes, you may have further redirect and we'll take

  16   a five-minute recess.

  17            MR. FITZGERALD:  We have one other application.

  18            THE COURT:  Yes.

  19            MR. FITZGERALD:  I would think it would be

  20   appropriate to instruct the jury at this point that

  21   Mr. McAllister was relieved because he was a witness to those

  22   events in representing Mr. Salim.  Mr. Ruhnke brought out that

  23   he and Mr. McAllister were co-counsel.

  24            THE COURT:  Yes.

  25            MR. FITZGERALD:  And therefore, because of the


   1   assault, Mr. McAllister was relieved.  I don't want the jury

   2   to think there was a finding by the court that Mr. Salim for

   3   some reason engaged in misconduct and therefore Mr. McAllister

   4   was relieved, and Mr. Khalfan Mohamed did not, and

   5   therefore --

   6            THE COURT:  As soon as you redirect, I will permit

   7   you to ask a leading question:  Were you relieved because you

   8   were a potential witness?

   9            MR. FITZGERALD:  Thank you, Judge.

  10            THE COURT:  We'll take a five-minute recess.

  11            (Recess)

  12            THE COURT:  I have no problem with the further

  13   inquiry that you suggest.  We will do that during the lunch

  14   break.

  15            MR. FITZGERALD:  Thank you.

  16            MR. RUHNKE:  Your Honor, was that a response to --

  17            THE COURT:  That was in response to a letter I just

  18   got from the government.

  19            MR. RUHNKE:  I haven't even had a chance to read it.

  20            THE COURT:  You will be fully advised before anything

  21   happens.

  22            Now bring in the jury.

  23            MR. FITZGERALD:  Judge, also could we have an

  24   instruction Mr. Ruhnke should not inject himself into the

  25   facts, which he did several times in the questions, about what


   1   happened at meetings he was present at?  I think it is very

   2   important that the jury not view that he is testifying through

   3   the questions.

   4            THE COURT:  All right.

   5            MR. RUHNKE:  Yes, your Honor.

   6            THE COURT:  Just keep that in mind.

   7            (Jury enters)

   8            THE COURT:  Mr. Ruhnke.

   9            MR. RUHNKE:  Thank you, your Honor.


  11   BY MR. RUHNKE:

  12   Q.  A few more questions on recross-examination,

  13   Mr. McAllister.

  14            MR. RUHNKE:  Without objection from the government,

  15   your Honor, I would like to display to the jury and to all

  16   counsel Defendant's Exhibit K.K.M. 6.

  17   Q.  Now, Mr. McAllister, do you see K.K.M. 6 in front of you?

  18   A.  Yes.

  19   Q.  And to the left of the photograph do you see a desk with

  20   what appears to either be a, appears to be actually a

  21   microwave or some sort of device on top of it?

  22   A.  Yes.

  23   Q.  Is that the officers station that you were discussing?

  24   A.  Yes.

  25   Q.  And this item to the, on the far left-hand corner, lower


   1   left-hand corner of the photograph, which actually appears to

   2   be some sort of crime scene kit, was that there when you were

   3   there on 10 South on November 1?

   4   A.  No.

   5   Q.  And the row of doors alongside the right-hand side of the

   6   photograph, are those the doors you were describing on the

   7   diagram as being the computer room and the inmate-attorney

   8   interview areas when you were on November 1, 2000?

   9   A.  Yes.

  10   Q.  The furthest door that you can see, although you can't see

  11   it 100 percent clearly, is that where the computer actually

  12   was?

  13   A.  That's right.

  14   Q.  And then there is a slit window and then a second slit

  15   window and then another door.  Is that the door where you

  16   and -- behind which you and Mr. Adler were on November 1?

  17   A.  Yes.

  18   Q.  And you described --

  19            THE COURT:  So that starting at the lower right-hand

  20   corner of that, which was the door that you were behind?

  21            THE WITNESS:  I believe that, if I can understand the

  22   diagram correctly, it is the --

  23            THE COURT:  The photograph.

  24            THE WITNESS:  The photograph.  It is not the door

  25   that's in the, to the extreme right, but a little further


   1   back.  In other words, I'm not sure whether the photograph,

   2   the foreground or whether the right side of the photograph

   3   includes the cell that is divided by mesh is just before the

   4   one that I was in or not.  I can't tell from this photograph

   5   exactly, but I believe that I was located beyond sort of where

   6   the second door that seems to appear to be open, swung open.

   7   I may be wrong about that, but I think that's where I was.

   8   Q.  Just again to set this up correctly, there are four doors

   9   along that particular wall, correct?

  10   A.  There are four doors along that wall.

  11   Q.  Two for each area of an attorney-inmate visit as shown on

  12   the diagram, correct?

  13   A.  That is true.

  14   Q.  And between the two areas within each straight unit, there

  15   is a mesh security screen, correct?

  16   A.  Yes.

  17   Q.  And as you look at this diagram, starting from the rear of

  18   the photograph, which would be towards Cell No. 1, do you see

  19   a door which would be where the computer was?

  20   A.  Yes, I think so.  I think that's the door behind which the

  21   computer was.

  22   Q.  Followed by the slit, which would be on the inmate's side

  23   or the computer side of the screen, correct?

  24   A.  Yes.

  25   Q.  Followed by another slit, which would be on your side of


   1   the screen, correct?

   2   A.  Yes.

   3   Q.  Followed by a door that now appears to be swung open,

   4   correct?

   5   A.  Yes.

   6   Q.  And that would be the area where you and Mr. Adler were?

   7   A.  Yes, that's what I think from this photograph.

   8   Q.  And you mentioned seeing Salim dragged by, leaving a trail

   9   of blood.  Can you see the trail of blood in that photograph?

  10   A.  Yes.

  11            MR. RUHNKE:  Your Honor, also without objection I

  12   would like to display to Mr. McAllister, K.K.M. 5.

  13   Q.  Now, is this a view of the rooms you are describing taken

  14   from the entranceway onto 10 South?

  15   A.  Yes, that appears to be so.

  16   Q.  And as you came onto 10 South through that final door, you

  17   would be facing that way, the officers station would be to

  18   your immediate left in the photograph, correct?

  19   A.  That's correct.

  20   Q.  And as you see now, the column that we discussed earlier?

  21   A.  Yes, I do.

  22   Q.  And you can see that actually there is an inmate

  23   standing -- it appears to be Mr. El Hage, as a matter of

  24   fact -- standing in the door on the far right, correct?

  25   A.  Yes.  I can't tell who it is, but, yes.


   1   Q.  You see the size of the window that's in that door?

   2   A.  Yes.

   3   Q.  Standing at that door -- I'm sorry.  Let's go on a little

   4   further.

   5            And then to the left there is another full-size door

   6   which would have been the other side of the screen for the

   7   first attorney-inmate area?

   8   A.  Yes.

   9   Q.  And then a door that is swung open, correct?

  10   A.  Yes.

  11   Q.  And the door that's swung open, is that the door behind

  12   which you and Mr. Adler were?

  13   A.  Yes, I think so.

  14   Q.  And standing in that area, if you are standing by the

  15   door, the window appears to be about waist high, correct?

  16   A.  Yes.

  17   Q.  Depending on your height, obviously.

  18            And standing at that window in that door, can you

  19   very clearly see the floor and all of the floor at your feet?

  20   A.  Yes.

  21   Q.  Finally, I would like to display what is, without

  22   objection from the government, K.K.M. 4.  And once again, does

  23   that display the -- a picture of the officers station to the

  24   left side of the photograph with what appears to be a

  25   microwave oven behind it?


   1   A.  Yes.

   2   Q.  And once again, does that seem to display that trail of

   3   blood that you discussed, including at the end of it a large

   4   pool of blood where it appears to be Mr. Salim was actually

   5   brought to rest?

   6   A.  Yes, that's true.

   7            MR. RUHNKE:  I have no further questions, your Honor.

   8            MR. GARCIA:  Just very briefly, Judge.

   9            MR. RUHNKE:  I assume these were received in

  10   evidence.

  11            THE COURT:  K.K.M. 6 and K.K.M. 4 received.

  12            MR. GARCIA:  No objection.

  13            MR. RUHNKE:  5 also?

  14            THE COURT:  And K.K.M. 5.

  15            (Defendant's Exhibits K.K.M. 4, 5 and 6 received in

  16   evidence)


  18   BY MR. GARCIA:

  19   Q.  Just ask you very briefly on an area.  You mentioned that

  20   you were relieved as counsel for Mr. Salim on November 8th; is

  21   that correct 2000?

  22   A.  I think approximately that date.

  23   Q.  Approximately?

  24   A.  Yes.

  25   Q.  And is it accurate to say you were relieved from


   1   representing him because of the potential that you would be a

   2   witness in this case?

   3   A.  Yes.

   4            MR. GARCIA:  Nothing further, Judge.

   5            THE COURT:  Thank you.

   6            Thank you, Mr. McAllister.  You may step down.

   7            The government may call its next witness.

   8            MR. GARCIA:  Roderick Jenkins.


  10        called as a witness by the government,

  11        having been duly sworn, testified as follows:


  13   BY MR. GARCIA:

  14   Q.  Mr. Jenkins, where do you work?

  15   A.  MCC, Metropolitan Correctional Center.

  16   Q.  If I could ask you if you could keep your voice up a

  17   little bit and maybe speak a little bit closer to the

  18   microphone so everybody could hear.

  19   A.  Okay.

  20   Q.  And what is your job at the MCC?

  21   A.  Intelligence research specialist.

  22   Q.  And how long have you worked at the MCC?

  23   A.  11 and a half years.

  24   Q.  And were you working at the MCC when the 10 South Special

  25   Housing Unit was built?


   1   A.  Yes, sir.

   2   Q.  And why was that unit built?

   3   A.  For maximum security inmates being housed.

   4   Q.  And approximately when was that, if you recall?

   5   A.  Approximately about three years ago.

   6   Q.  And were you working at the MCC on November 1, 2000?

   7   A.  Yes, sir.

   8   Q.  And what was your shift that day?

   9   A.  7:45 to 4:15 p.m.

  10   Q.  And when you reported to work, where was your office

  11   located, where would you go?

  12   A.  On the third floor.

  13   Q.  Did there come a time on the morning of November 1st,

  14   2000, while you were working in your office that you heard a

  15   disturbance?

  16   A.  Yes.

  17   Q.  And could you tell us about that and what you heard and

  18   what you did?

  19   A.  Basically I was in my office on the third floor.  I heard

  20   like a disturbance going on.  I pretty much got up and --

  21            THE COURT:  Please keep your voice up.

  22   A.  I heard a disturbance going on.  At that point I directed

  23   myself toward the elevator on the third floor.

  24   Q.  And what happened as you got out of your office and toward

  25   the elevator?


   1   A.  At that point I was advised that it was a body alarm that

   2   was activated in the 10 South area.  Then we got on the

   3   elevator and proceeded up to the ninth floor.

   4   Q.  You mentioned a body alarm.  Could you describe for us

   5   what that is?

   6   A.  Each officer on the housing unit has a body alarm which

   7   pretty much activates if it is down and disabled and 

   8   registered back to the control center, which identifies that

   9   particular radio and location.

  10   Q.  How would that body alarm be activated, what types of

  11   ways?

  12   A.  Manually by pressing the button or on a tilt fashion.  If

  13   you sit down and it tilts, it would activate the control

  14   center.

  15   Q.  And that's if the radio goes past a certain angle?

  16   A.  Yes.

  17   Q.  Tilts for a certain amount of time?

  18   A.  Yes.

  19   Q.  And when you heard that this body alarm had gone off that

  20   morning, what unit did you report to?

  21   A.  Reported to 9 South, which is the segregation unit.

  22   Q.  And then when you got to 9 South, where did you go?

  23   A.  Proceeded up the stairs to 10 South, which is the max

  24   security housing.

  25   Q.  What happened there?


   1   A.  At that point we got to the 46 door, popped the 46 door,

   2   which is the initial door.  Then you are in a sallyport area.

   3   Then you have the 10 South main door.

   4            At that point we didn't have access to get into this

   5   10 South.  We had to get the emergency keys.

   6   Q.  If we could stop there for a second and display Government

   7   Exhibit 4000.

   8            You are describing the sallyport area.  Is that on

   9   the left side of the diagram as you are looking at it, about

  10   the middle of the page?

  11   A.  Yes.

  12   Q.  And you mentioned something called a 46 door.  Could you

  13   show us where that is on the diagram?

  14   A.  This door here.

  15   Q.  So that would be the door indicating an open position

  16   here, all the way on the left of the diagram, basically the

  17   first door as you go into the sallyport?

  18   A.  Yes.

  19   Q.  And that's the 46 door?

  20   A.  Yes.

  21   Q.  You mentioned control, what's that?

  22   A.  Control center is the main initial part of the institution

  23   that controls all the doors, radio control movements and stuff

  24   like that.

  25   Q.  Control would be able to automatically open that first


   1   door, that 46 door?

   2   A.  Yes.

   3   Q.  And how about the inner door to the 10 South Unit?

   4   A.  No.

   5   Q.  How is that opened?

   6   A.  Manually by a key.

   7   Q.  And you mentioned that when you got into this sallyport

   8   area you couldn't get through the second door; is that

   9   correct?

  10   A.  Yes.

  11   Q.  So what happened as you entered the sallyport and you

  12   couldn't get through the second door, tell us what happened

  13   after that?

  14   A.  At that point we was advised to gain the emergency keys

  15   from control center, and they was --

  16            THE COURT:  Advised by whom?

  17            THE WITNESS:  By the captain.

  18            Captain Aponte advised the Security Officer Scotto to

  19   go down to control center and get the keys, emergency keys.

  20   Q.  And approximately, if you best estimate, how many officers

  21   are you in that sallyport area as you are waiting to get

  22   through the door?

  23   A.  Approximately 15 to 20.

  24   Q.  And while you are in the sallyport area waiting for the

  25   key, could you see through the second door into the unit?


   1   A.  Yes.

   2   Q.  And what is your view generally as you are looking

   3   through?

   4   A.  You are basically looking at the attorney visiting room

   5   area and the officers station.

   6            MR. GARCIA:  And if I could have Government Exhibit

   7   40003 displayed for everyone, which I believe is already in

   8   evidence as a defense exhibit.

   9   Q.  Is that a fair view, a fair view of what you could see

  10   from the door looking into 10 South?

  11   A.  Yes.

  12   Q.  And could you describe for us what, if anything, you saw

  13   as you were waiting for the key to come up through the window

  14   of that 10 South door?

  15   A.  Basically I was trying to gain some type of intelligence

  16   to see if there was any unusual activity going on in the

  17   housing unit.  During that time attorney visits were being

  18   conducted with the other inmates from 9 South and probation.

  19            At that point, while I was looking into the window, I

  20   saw Inmate Salim standing on the back side of the column on

  21   the right-hand side.

  22   Q.  And did the inmate appear to be restrained in any way when

  23   you saw him?

  24   A.  No.

  25   Q.  Is there anything else you can remember about his


   1   appearance?

   2   A.  Yes.  He had blood on his hands.

   3   Q.  And did you advise your fellow officers at that point that

   4   you had seen an inmate on the floor?

   5   A.  Yes.  I advised the captain that an inmate was out on the

   6   housing unit, and the captain then asked me, what do you mean?

   7   That you saw an inmate?  I said, yes, I saw Salim on the

   8   outside portion of the 10 South.

   9   Q.  Now, is it fair to say up to this time there had been

  10   efforts made to reach the officer on duty on that floor?

  11   A.  Excuse me?  Repeat.

  12   Q.  Efforts made to reach Officer Pepe, who was on duty?

  13   A.  Yes.  At that point we was trying to gain some type of

  14   intelligence by listening to the radio, because you can pretty

  15   much hear anything once the body alarm is activated.

  16   Q.  Anyone hear anything as far as you know?

  17   A.  No.

  18   Q.  And you mentioned you saw Inmate Salim.  Were you familiar

  19   with the Inmate Salim prior to this date?

  20   A.  Yes.

  21   Q.  What he looked like?  His name?

  22   A.  Yes.

  23            MR. GARCIA:  If I could have Government Exhibit 4059,

  24   which is already in evidence, displayed.

  25   Q.  Do you recognize that person?


   1   A.  Yes.

   2   Q.  Who is that?

   3   A.  Salim.

   4   Q.  Did there come a time that you gained entrance through the

   5   second door of the 10 South Unit?

   6   A.  Yes.  Once the emergency keys arrived, at that point we

   7   gained access into 10 South.

   8   Q.  And as far as you can recollect, who were the first Bureau

   9   of Prison personnel through the door?

  10   A.  I was.

  11            MR. GARCIA:  And if we could have Government Exhibit

  12   4000 up again.

  13   Q.  And if you would, Officer Jenkins, could you describe for

  14   us what you did after you gained entrance to 10 South that

  15   morning?

  16   A.  Once I gained entrance into the 10 South housing unit, I

  17   proceeded to go into, which is a tactical term, going stealth,

  18   proceeding toward the column area where Salim was standing,

  19   over toward Cell 2 and 3 and proceeded to go on.  There was a

  20   lot of blind spots in the housing unit, so I was proceeding

  21   with caution.

  22            At that point, I got toward the office area and I saw

  23   Inmate Salim running -- well, basically coming towards me.  At

  24   that point he turned around and started to run towards the

  25   back area of 10 South.


   1   Q.  When you say "the back area," on this diagram where would

   2   that be?

   3   A.  Pretty much the location back towards Cell 6 and 5 and

   4   towards the recreation area.

   5   Q.  And what do you do after you saw Salim turn and run?

   6   A.  Again, I just proceeded to go with caution because there

   7   were other inmates in Cell 2, 3, 4, and 5.  And at that point,

   8   as I was coming around, I noticed blood on the floor.  I

   9   indicated to the other staff members who was behind me that

  10   there's blood on the floor.

  11   Q.  And what did you do after that?

  12   A.  Again, I proceeded to go towards where Salim was headed,

  13   passing 4 and 5 cell.  I reach the recreation cell, which is a

  14   holding cell for recreation conducted for individuals up

  15   there.  I grabbed a plexiglass shield from the recreation

  16   cage, which is used for soundproofing if they have to be used

  17   for attorney visits.

  18   Q.  Can you just describe for us generally what that shield or

  19   soundproofing barrier looks like?

  20   A.  It is pretty much about ten feet plexiglass with metal

  21   rods on each side.

  22            MR. GARCIA:  If we could have Government Exhibit

  23   40003 displayed for the witness.

  24   Q.  Directing your attention to the object leaning on the

  25   right side of that photograph, does that look familiar?


   1   A.  Yes.

   2   Q.  And what is that?

   3   A.  Plexiglass.

   4   Q.  Is that the type of shield you used that day?

   5   A.  Yes.

   6            MR. GARCIA:  Your Honor, I offer Government Exhibit

   7   4005.

   8            THE COURT:  Received, 4005.

   9            (Government Exhibit 4005 received in evidence)

  10            MR. GARCIA:  And if we could display that for the

  11   jury.

  12   Q.  After you picked up a shield like this one displayed in

  13   4005, Officer Jenkins, what do you do next?

  14   A.  At that point I picked up the shield and proceeded to go

  15   again where Inmate Salim was headed.

  16            MR. GARCIA:  If we could have Government Exhibit 4000

  17   back on for a minute.

  18   Q.  Again, that's towards the back area towards Cell 6?

  19   A.  Yes.

  20   Q.  And did there come a time you again saw Salim as you came

  21   around toward Cell 6?

  22   A.  Yes.  At that point I saw Inmate Salim trying to go back

  23   into Cell 6 with some keys in his hand, trying to get back

  24   into Cell 6.

  25   Q.  Did he get into Cell 6 that you could see?


   1   A.  Yes.

   2   Q.  What did you do after he entered the cell?

   3   A.  Again proceeded with caution.  Coming around there's a lot

   4   of blind areas.  I pretty much got towards Cell 6 and in the

   5   right-hand corner where the electrical closet is, Inmate

   6   Mohamed was standing there.

   7   Q.  And had you seen Inmate Mohamed prior to that date?

   8   A.  Yes.

   9   Q.  And you were familiar with him?

  10   A.  Yes.

  11   Q.  And looking around the courtroom today, do you see the

  12   person you knew as Inmate Mohamed?

  13   A.  Yes.

  14   Q.  And could you point him out for us?

  15   A.  (Witness pointing)

  16   Q.  Describe something that he is wearing.

  17   A.  Glasses with the gray striped shirt.

  18            THE COURT:  The record will indicate the witness has

  19   identified the defendant K.K. Mohamed.

  20   BY MR. GARCIA:

  21   Q.  After you saw the defendant in the corner here by the

  22   electrical closet in the upper right-hand side of Government

  23   Exhibit 4000, what happened next?

  24   A.  At that point, Mohamed lunged at me with a substance, a

  25   bottled substance, squirting something on my person, and I


   1   pretty much blocked it with the shield and pushed him toward

   2   the corner of that electrical closet area.

   3   Q.  And could you describe the bottle that you saw?

   4   A.  It's a commissary item that they purchase.  It's a honey

   5   bottle shaped in a bear with the yellow cap.

   6   Q.  And he was squirting something at you from this bottle?

   7   A.  Yes.

   8   Q.  And after you pushed him to the wall with the shield, what

   9   happened?

  10   A.  At that point I pretty much had him contained in that

  11   area.  My back was toward Cell 6.  Inmate Salim then came out

  12   of the cell, lunging at me, squirting an object and had a

  13   white object in his other hand.  At that point I kicked the

  14   door with my left foot and pretty much slammed the door on his

  15   face and he went back into the cell.  After I kicked the door,

  16   he then tried to come out of the cell, trying to strike me

  17   from the rear.

  18   Q.  And during that time what was Inmate Mohamed doing?

  19   A.  Nothing.  He was pretty much subdued.  He couldn't do

  20   anything.

  21   Q.  Because of the shield?

  22   A.  Yes.

  23   Q.  And did there come a time that you opened -- your foot

  24   came away from the cell door of Cell 6?

  25   A.  Yes.


   1   Q.  Why was that?

   2   A.  Because Officer Pepe then picked his head up and looked at

   3   me right in my eyes out of the window of that cell.

   4   Q.  There is a window in the cell door, Cell 6 door?

   5   A.  Yes.

   6   Q.  Could you describe for us what Officer Pepe looked like

   7   when you saw him through that window?

   8   A.  Yes.  He had an object sticking out of his left eye,

   9   blood, his head was swollen, his eye was swollen.  That's

  10   about it.

  11   Q.  And after you took your foot away from the door to Cell 6,

  12   what happened next?

  13   A.  Then at that point I decided to just, to let Officer Pepe

  14   out of the cell.  At that point Inmate Salim lunged at me and

  15   I struck him on the right side of his face with my left fist.

  16   Q.  And then what happened with the Inmate Mohamed?

  17   A.  He went down.

  18   Q.  And what did you do next?

  19   A.  At that point, once he went down, additional staff

  20   members --

  21            MR. STERN:  Judge, if we could, two people's names

  22   are Mohamed.  So we should identify if he is talking about

  23   Salim or Khalfan Mohamed.

  24            MR. GARCIA:  For the record, there's one named

  25   Mohamed and one Mamdouh, but we'll clarify who is who.


   1   Q.  The Inmate Salim who came out of the cell, what happened

   2   with him?

   3   A.  Inmate Salim then went down to the ground.

   4   Q.  And how about the inmate, this defendant, Khalfan Mohamed,

   5   what was he doing?

   6   A.  At that point he was already -- another additional staff

   7   member came and we put him also down to the ground.

   8   Q.  Did you at some point restrain this defendant?

   9   A.  Yes.  At that point additional staff members had Salim, I

  10   had Mohamed, and then a pair of handcuffs was passed to me.

  11   Q.  And when you were trying to restrain the Inmate Mohamed,

  12   was he cooperating or was he still resisting?

  13   A.  No, he was struggling and he was fighting.

  14   Q.  And after you restrained the inmate, the inmate, this

  15   defendant, what happened with him, if you know?

  16   A.  At that point we had a tough time trying to get his left

  17   arm around his back to cuff him from the rear.  Once we --

  18            THE COURT:  Whose arm?

  19            THE WITNESS:  Khalfan, struggling with him to get his

  20   arm to the rear.

  21            At that point another staff member assisted Officer

  22   Pepe out of Cell 6.

  23   Q.  When you were struggling to cuff this defendant, Khalfan

  24   Mohamed, do you recall if an officer named Lance Maiden was

  25   with you?


   1   A.  Yes, Lance Maiden assisted me with Mohamed on my right

   2   side.

   3   Q.  Did there come a time that you did then restrain this

   4   defendant Mohamed?

   5   A.  Yes.

   6   Q.  And what was done with him after he was restrained?

   7   A.  Pretty much he was subdued to the ground until the area

   8   was secure with the additional attorney visits and Officer

   9   Pepe, once he left the floor.

  10   Q.  And were the Inmates Salim and this defendant Mohamed

  11   removed from this back area of 10 South at some point?

  12   A.  Yes.

  13   Q.  And do you recall where each of them were taken on the

  14   floor of 10 South, where they were brought?

  15   A.  Repeat that again.

  16   Q.  Let's start with the Inmate Salim.  The Inmate Salim, he

  17   was brought out of the back area of 10 South?

  18   A.  Yes.

  19   Q.  Do you recall where on the floor in 10 South he was

  20   brought?

  21   A.  Yes.  He was brought toward the front area of the station,

  22   the officers station, towards the visiting, the last visiting,

  23   toward the right.

  24   Q.  And this defendant, Mohamed, where was he brought?

  25   A.  He was also -- at that point we took him towards the


   1   office area, toward the front, removed his articles, his

   2   clothing articles, and then brought him towards the recreation

   3   cage towards your left in the front.

   4   Q.  You removed his clothing in the office area, is that the

   5   office area in the middle of this diagram on the bottom?

   6   A.  Yes.

   7   Q.  And you say his clothes were taken off there?

   8   A.  Yes.

   9            MR. GARCIA:  And if we could show this witness

  10   Government Exhibit 4007.

  11   Q.  Does that look like the area generally where you removed

  12   the Inmate Salim's -- excuse me.  Withdrawn.  Where you

  13   removed this defendant's clothing?

  14   A.  Yes.

  15   Q.  And if we could show -- is that generally how it appeared

  16   to you that day?

  17   A.  Excuse me?

  18   Q.  Is that generally how this area appeared to you that day

  19   when you took his clothing off?

  20   A.  Besides everything there?  No.

  21   Q.  Yes.

  22   A.  Yes.

  23   Q.  Let's go to 4008.  Let's show 4008.

  24            Do you recognize those items in 4008?

  25   A.  Yes.


   1   Q.  Generally what are those?

   2   A.  Those were the clothing articles that Mohamed was wearing.

   3            MR. GARCIA:  Your Honor, the government offers 4008.

   4            THE COURT:  Yes.  4007, is that offered?

   5            MR. GARCIA:  No.

   6            THE COURT:  4008, received.

   7            (Government Exhibit 4008 received in evidence)

   8            MR. GARCIA:  If we could display that for the jury.

   9   Q.  Again those are some of the articles you removed from this

  10   defendant that day?

  11   A.  Yes.

  12   Q.  During this time you were on 10 South, did you see Officer

  13   Pepe again after you had initially seen him through the

  14   window?

  15   A.  No, I haven't.

  16   Q.  Did you see him come out of the cell at all?

  17   A.  Yes, I saw him come out of the cell.

  18   Q.  Was he walking or being carried?

  19   A.  He was walking.

  20   Q.  Did you see anything else about him at that time that you

  21   could describe for us?

  22   A.  Yes.  He had a pair of handcuffs on one of his arms.

  23   Q.  And is it fair to say one cuff on one arm?

  24   A.  Yes.

  25   Q.  And you knew Officer Pepe prior to November 1?


   1   A.  Yes.

   2   Q.  And about how long had you known him?

   3   A.  For 11 and a half years I was there.

   4   Q.  And are you familiar with something called the disturbance

   5   control team?

   6   A.  Yes.

   7   Q.  And what is that?

   8   A.  Disturbance control team is, which we have three teams,

   9   consists of 15 men, pretty much deal with any disturbances

  10   that goes on within the institution or on the outside of the

  11   institution.

  12   Q.  Are you a member of that team?

  13   A.  Yes.

  14   Q.  In fact, are you a lead instructor for that team?

  15   A.  Yes, I'm a lead instructor for that team.

  16   Q.  Prior to November 1 was Officer Pepe a member of one of

  17   those teams?

  18   A.  Yes.

  19   Q.  And as part of your duties on that team, do you receive

  20   any special training?

  21   A.  Yes, each individual receives special training, also

  22   myself.

  23   Q.  And what type of training is that?

  24   A.  Training, self-defense, tactical training, entries,

  25   weapons, force of movement.


   1   Q.  And how often do you get this type of training?

   2   A.  Training is conducted once a month for the teams.

   3   Q.  And did you see Officer Pepe going through this training?

   4   A.  Yes.

   5   Q.  And did he successfully complete that training?

   6   A.  Yes.

   7   Q.  And can you describe Officer Pepe for us physically?

   8   A.  About five-seven, five-eight, 260, 270.

   9   Q.  And did you ever in fact go with Officer Pepe on a

  10   response team to handle situations in other institutions?

  11   A.  Yes.

  12   Q.  About when was that?

  13   A.  1995.

  14   Q.  Where did that happen?

  15   A.  We went to Otisville, New York and Farrington.

  16   Q.  And were you in fact involved in subduing some situations

  17   in those facilities?

  18   A.  Yes.  1995 was the new law of the crack cocaine and pretty

  19   much all the major institutions had an uprise because of the

  20   change of the law.

  21   Q.  And did Officer Pepe participate with you when you went

  22   into those institutions?

  23   A.  Yes.

  24   Q.  Did you ever see Officer Pepe physically abuse any inmate?

  25   A.  No.


   1   Q.  In the course of your duties at the MCC, are you familiar

   2   with what's called a cell rotation log?

   3   A.  Yes.

   4   Q.  Basically what does that do?

   5   A.  Cell rotation, a 21-day cell rotation is pretty much to

   6   rotate the inmates so that they don't get familiar pretty much

   7   with that particular cell that they are in that environment.

   8   Q.  Was that in effect for 10 South, the 21-day rotation?

   9   A.  Yes.

  10            MR. GARCIA:  Your Honor, if I could have Government

  11   Exhibit 4049.

  12            THE COURT:  Yes.

  13            4049?

  14            MR. GARCIA:  Yes.

  15   Q.  Officer Jenkins, is that a copy of a cell rotation log for

  16   MCC?

  17   A.  Yes.

  18   Q.  And does it show cell rotations on 10 South for a period

  19   in late 2000?

  20   A.  Yes.

  21   Q.  And is that a document that's kept in the normal course of

  22   MCC's business?

  23   A.  Yes.  The document is kept on 9 South also, segregation

  24   unit, and 10 South.

  25            MR. GARCIA:  I would offer at this time Government


   1   Exhibit 4049.

   2            THE COURT:  Received.

   3            (Government Exhibit 4049 received in evidence)

   4   BY MR. GARCIA:

   5   Q.  Officer Jenkins, looking at that exhibit now in evidence,

   6   could you tell us the cell change for the inmates on 10 South

   7   that took place prior to November 1st, 2000?

   8   A.  Prior to November 1, yes.

   9   Q.  What date is that?

  10   A.  Excuse me?

  11   Q.  What date did that cell change take place?

  12   A.  10/25/2000.

  13   Q.  And do you see an indication that the Inmate Salim was

  14   moved, rotated from a cell on that date?

  15   A.  Yes, he was moved from Cell 1 to Cell 6 on 10/25/2000.

  16   Q.  How about the defendant Khalfan Mohamed, was he moved as

  17   well on that date?

  18   A.  Yes.  On 10/25, Mohamed was moved from Cell 3 to Cell 6.

  19            MR. GARCIA:  I have nothing further, Judge.

  20            THE COURT:  Mr. Stern.


  22   BY MR. STERN:

  23   Q.  Officer, I want to talk to you about the cell rotation you

  24   were just talking about, okay?

  25   A.  Yes, sir.


   1   Q.  That's done for what reason?

   2   A.  Cell rotation is done for security purposes.

   3   Q.  And when you say security purposes, what do you mean by

   4   that?

   5   A.  Where if there is any type of -- an inmate may want to cut

   6   the bars, or whatever the case may be, or pretty much learn

   7   the officer habits and stuff like that, try not to get him

   8   familiar with it.

   9   Q.  Correct me if I'm wrong, but one thing you do is that when

  10   you move someone from one cell to another, you search their

  11   belongings, don't you?

  12   A.  Yes.

  13   Q.  And you search the cell as they leave the cell and before

  14   they enter the new cell; both cells are searched, correct?

  15   A.  Yes.

  16   Q.  And when an inmate is involved in a cell rotation, you

  17   don't say to him, who would you like to be with, do you?

  18   A.  No.

  19   Q.  You don't even want them to know who they are going to be

  20   placed with, correct?

  21   A.  At some point in time they are going to know.

  22   Q.  When are were in a room with somebody and they see them,

  23   they know, right?

  24   A.  Yes.

  25   Q.  But they are not told days before, hey, your next roommate


   1   is going to be Salim or your next roommate is going to be

   2   Odeh, are they?

   3   A.  No.

   4   Q.  In this case, Khalfan Mohamed had only been five days in

   5   the cell with Salim; is that right?

   6   A.  I can't say.  I mean, I don't have the complete 21-day

   7   cell rotation.

   8   Q.  Do you have the day before November 1st he was changed

   9   into a cell with Salim?

  10   A.  Yes.

  11   Q.  And do you know what day this incident occurred?

  12   A.  Right.  Yes.

  13   Q.  November 1st, right?

  14   A.  Yes.

  15   Q.  How many days would that be?

  16   A.  Five.

  17   Q.  That's how long, then, Khalfan Mohamed and Salim had been

  18   in the same cell, fair to say, right?

  19   A.  Yes.

  20   Q.  Were you present when this change was done?

  21   A.  No.

  22   Q.  Do you know of your own knowledge whether or not the

  23   routine that's normally followed was followed?

  24   A.  No, unless you check the logbook.

  25   Q.  And you could tell from the log if cells were searched, et


   1   cetera?

   2   A.  Yes.

   3   Q.  Do you have that log with you?

   4   A.  No, I don't.

   5   Q.  When you came up to the sallyport looking onto 10 South,

   6   you had a good idea that something might be wrong, didn't you?

   7   A.  Gut instincts, yes, but, no.

   8   Q.  Well, for one thing, it's alarming when one of those body

   9   alarms go off, right?

  10   A.  Yes.

  11   Q.  That means something might be wrong?

  12   A.  Yes.

  13   Q.  Could be it's just an angle, could be something's wrong,

  14   true?

  15   A.  Yes.

  16   Q.  And as you were standing there in the sallyport, people

  17   were telephoning 10 South, were they not?

  18   A.  I can't recall.

  19   Q.  Well, they are calling you, telling you they couldn't get

  20   you on the phone?

  21   A.  I didn't hear that.

  22   Q.  Do you recall anyone banging on the door?

  23   A.  Yes.

  24   Q.  And was it you banging on the door?

  25   A.  No.


   1   Q.  Who was it banging on the door?

   2   A.  I can't recall who it was.  It was additional staff.

   3   Q.  When whoever that was was banging on the door, did they

   4   tell you if anyone responded or not?

   5   A.  Repeat that.

   6   Q.  Yes.  Someone was banging on the door, correct?

   7   A.  On the outside of the door.

   8   Q.  Right.

   9   A.  Yes.

  10   Q.  And to your knowledge did anyone say, oh, someone has

  11   responded to our banging?

  12   A.  No.

  13   Q.  And that was something else that was a little peculiar,

  14   right?

  15   A.  Yes.

  16   Q.  Often when one officer comes to a door and he wants it

  17   opened, he bangs on the window, correct?

  18   A.  No.

  19   Q.  You've never seen that happen?

  20   A.  No.

  21   Q.  As you were looking through, you said you were trying to

  22   gather intelligence information of some sort, right?

  23   A.  Yes.

  24   Q.  And you mean by that that you were trying to figure out

  25   what was happening?


   1   A.  No, I wasn't trying to figure out what happened.  I was

   2   pretty much going to see any unusual movement or anything that

   3   was going on inside.

   4   Q.  I guess that's what I meant by "figuring out what was

   5   happening."

   6            And so you saw that there were lawyers in there

   7   having meetings with clients, right?

   8   A.  Yes.

   9   Q.  And at some point you saw Mamdouh Salim?

  10   A.  Yes.

  11   Q.  And when you saw him, he was behind a pillar that's almost

  12   directly in front of the door as you look in, right?

  13   A.  Offset toward the right.  Not directly.

  14   Q.  Did it look to you that Mr. Salim was trying not to be

  15   seen?

  16   A.  Yes.

  17   Q.  But you got a good enough look at him to recognize it as

  18   Mamdouh Salim, right?

  19   A.  Yes.

  20   Q.  And you got a good enough look to see that Mamdouh Salim

  21   had blood on his hands?

  22   A.  Yes.

  23   Q.  And when he saw you, Salim didn't come up to the door,

  24   right?

  25   A.  Right.


   1   Q.  In fact, he began to go in the other direction?

   2   A.  He looked at me, then he turned into the other direction.

   3   Q.  When you saw Salim, you didn't see Khalfan Mohamed, did

   4   you?

   5   A.  No.

   6   Q.  Just Salim?

   7   A.  Yes.

   8   Q.  At some point someone came up with a key that allowed you

   9   and others to enter, right?

  10   A.  Yes.

  11   Q.  When you entered, Maiden was with you?

  12   A.  I mean, once I -- yes, he additionally responded, yes.

  13   Q.  Do you know if someone named Aponte was there, a captain?

  14   A.  Yes, Captain Aponte was there also.

  15   Q.  Do you know if someone named Rementer was there?

  16   A.  Yes.

  17   Q.  Okay.  And there were people in addition to those people,

  18   right?

  19   A.  Yes.

  20   Q.  And when you entered, you began to carefully go around

  21   inside 10 South, right?

  22   A.  Yes.

  23   Q.  You wanted to be sure that nothing would be done to you,

  24   correct?

  25   A.  Yes.


   1   Q.  And you wanted to try and figure out what was going on?

   2   A.  Yes.

   3   Q.  At some point, one of the things you saw was blood in

   4   front of Cell No. 6, isn't that right?

   5   A.  Yes, I saw blood droppings in Cell 6.

   6   Q.  In front of Cell 6?

   7   A.  In front of Cell 6.

   8   Q.  And initially that was the only blood you saw, wasn't it?

   9   A.  No.  There was a trail of blood leading from the pillar to

  10   the Cell 6.

  11   Q.  Well, on November 1st, the same day this occurred, you

  12   spoke with a special agent from the Federal Bureau of

  13   Investigation, didn't you?

  14   A.  Yes.

  15   Q.  And that was an agent named Joseph Foelsch, correct?

  16   A.  Yes.

  17   Q.  And when you spoke to Agent Foelsch, you were trying to

  18   give him the most accurate information you possibly could

  19   about what had occurred, weren't you?

  20   A.  Yes.

  21   Q.  You knew that Agent Foelsch would make a report of what

  22   you told him, right?

  23   A.  Repeat that.

  24   Q.  You knew that Agent Foelsch would make a report of what

  25   you told him?


   1   A.  I don't know if he was going to make a report.  He just

   2   asked me questions.

   3   Q.  Did you see him writing while he was asking you questions?

   4   A.  Yes.

   5   Q.  And you told Agent Foelsch everything you could remember

   6   about what happened as accurately as you possibly could, did

   7   you not?

   8   A.  Yes.

   9   Q.  When you were talking to him, you told him what you

  10   thought had happened with Officer Pepe, right?

  11   A.  About Officer Pepe or the incident, no.

  12   Q.  With Officer Pepe and the incident, right?

  13   A.  Yes.

  14   Q.  And it's your opinion, is it not, that Officer Pepe was

  15   attacked while returning Salim to his cell?

  16   A.  I don't know that.

  17   Q.  Well, did you tell Agent Foelsch on the 1st of November

  18   that you believed that Pepe was attacked returning Salim to

  19   his cell, yes or no?

  20   A.  I can't recall that.

  21   Q.  I'm going to give you a document.

  22            MR. STERN:  If I may approach, Judge.  It will be

  23   marked as K.K.M. 7.

  24   Q.  I'm going to ask you to read the part at the bottom near

  25   the number 2 and tell me when you are done.


   1   A.  Okay.

   2   Q.  I'm going to ask you again if that refreshes your

   3   recollection as to whether or not you told Agent Foelsch that

   4   you believed Pepe was attacked while bringing Salim back to

   5   his cell?

   6   A.  According to the document, yes.  I can't recall.

   7   Q.  I'm not asking you what the document says right now.  I'm

   8   asking you if that reminds you that that's what you told Agent

   9   Foelsch?

  10   A.  Yes, I remember -- yes.

  11   Q.  And you based that conclusion on the fact that there was

  12   blood on the floor in front of Cell No. 6, correct?

  13   A.  No, that's not what I based it on.

  14   Q.  Well, have you had a chance to look at this?

  15   A.  Yes.

  16   Q.  Did you tell Agent Foelsch that initially the blood trail

  17   was in front of Cell No. 6 only?  Did you say that to him?

  18   A.  I don't recall that, but according to the document, yes.

  19   Q.  I'm asking you, does that document help you remember that

  20   that's what you told him?

  21   A.  Yes.

  22   Q.  And then you recalled that you saw some blood on the floor

  23   by the door first, right?

  24   A.  Yes.

  25   Q.  And based on those facts, you told Agent Foelsch, did you


   1   not, that you believed that Pepe was attacked returning Salim

   2   to his cell?

   3   A.  According to the document, yes.

   4   Q.  And that document --

   5            THE COURT:  The question isn't what is contained

   6   there.  The question is what your best memory is.  We don't

   7   need a witness to tell us what appears on the document.

   8            THE WITNESS:  Right.

   9            THE COURT:  The question is your recollection now.

  10            What is your recollection as to these events?

  11            THE WITNESS:  I couldn't -- I can't recall.

  12   BY MR. STERN:

  13   Q.  You don't recall saying any of those things?

  14   A.  I don't recall, no.  That particular statement, I don't

  15   recall it.

  16   Q.  Okay.  Now, after you got into 10 South, that is, into the

  17   floor of 10 South, you saw Salim again, did you not?

  18   A.  Yes.

  19   Q.  At first you saw him coming towards you, right?

  20   A.  Yes.

  21   Q.  Then you saw him turn and begin to go back in the other

  22   direction?

  23   A.  Yes.

  24   Q.  And when you saw him at that time, he was again alone,

  25   wasn't he?


   1   A.  Yes.

   2   Q.  You didn't see Khalfan Mohamed with him?

   3   A.  No.

   4   Q.  And when he began to go, you saw him actually go up to

   5   Cell No. 6, right?

   6   A.  Yes.

   7   Q.  And you saw him enter that cell using keys?

   8   A.  Yes.

   9   Q.  And he had those keys in hand, right?

  10   A.  Yes.

  11   Q.  Now, it's fair to say those keys aren't issued inmates,

  12   right?

  13   A.  No.

  14   Q.  So, as far as you knew, they had to have been taken from a

  15   guard, correct?

  16   A.  Officer, yes.

  17   Q.  An officer.  I'm sorry.  And the only officer on that

  18   floor before you all had entered was Officer Pepe, right?

  19   A.  I didn't have no way of knowing that, but, yes, I assume.

  20   Q.  Do you now know that?

  21   A.  No, I didn't know.  I didn't know who else was working

  22   there.

  23   Q.  I'm asking you now as you sit here?

  24   A.  Yes, now I know.

  25   Q.  You know if there was more than one officer on that floor


   1   prior to your entry?

   2   A.  No, there was no other officer.

   3   Q.  Just Officer Pepe, right?

   4   A.  Correct.

   5   Q.  You came around the corner there and --

   6            MR. STERN:  Can we have the diagram put back up for

   7   the moment, please?  I think it's 4,000.

   8   Q.  As you came around the last corner, that's when you see

   9   Cell No. 6, correct?

  10   A.  Repeat that again.

  11   Q.  You come around a corner.  First you are by -- you see

  12   where it says stair number 3?

  13   A.  Yes.

  14   Q.  You go past stair number 3 and you have to make a, sort of

  15   a jog to the right, correct?

  16   A.  Yes.

  17   Q.  And then as you come into the empty area depicted at the

  18   end, that's where you see Cell No. 6, right?

  19   A.  Yes.

  20   Q.  And when you got to that area, Salim was already back in

  21   his cell, wasn't he?

  22   A.  Yes.

  23   Q.  And he saw Khalfan Mohamed standing there on the corner,

  24   correct?

  25   A.  Actually, I didn't see him.  He lunged out at me so that's


   1   the only way I saw him.  There's a blind -- according to this

   2   particular diagram, it's a blind spot there.  You can't see

   3   the corner right.

   4   Q.  But there came a point at which you saw him?

   5   A.  Yes.

   6   Q.  At the point at which you saw him, were you already

   7   carrying the plexiglass shield?

   8   A.  Yes.

   9   Q.  And you're confident, aren't you, that he was not behind

  10   the plexiglass shield when you got there?

  11   A.  Right.

  12   Q.  It was you who had the shield and not he?

  13   A.  Yes.

  14   Q.  And you are sure it was you who was carrying that shield

  15   at the time at which you pressed it against him, right?

  16   A.  Yes.

  17   Q.  It was not Carrino who had the shield?

  18   A.  No.

  19   Q.  And you had not given the shield to Carrino, fair to say?

  20   A.  Yes.

  21   Q.  You know who I'm talking about when I say Carrino?

  22   A.  Right.

  23   Q.  Who is Officer Carrino?

  24   A.  Lieutenant Carrino.

  25   Q.  I'm sorry, Lieutenant Carrino.


   1            Now, as you were coming at Mr. Mohamed with this

   2   shield, or as he was coming at you, you said he was squirting

   3   some kind of sauce, right?

   4   A.  Substance.  I don't know what it was.

   5   Q.  But I take it that that substance didn't get on you

   6   because you had the shield in front of you?

   7   A.  No, it did get on me.

   8   Q.  Were you carrying the shield in front of you?

   9   A.  Yes, I was.

  10   Q.  Did it come over the top of the shield?

  11   A.  I don't know how it did, but it got on me.

  12   Q.  You know it got on you at that moment, or at some point

  13   you had that substance on you?

  14   A.  I would say at some point I got the substance on me.

  15   Q.  Because Salim, you say, was squirting a substance, right?

  16   A.  Right.

  17   Q.  You at some point pinned Mr. Mohamed, Khalfan Mohamed, to

  18   the wall with this shield, didn't you?

  19   A.  Yes.

  20   Q.  And as you were holding him there, you were also holding

  21   the door to Cell No. 6 shut with your foot?

  22   A.  Yes.

  23   Q.  And that was to ensure that you could not be attacked from

  24   behind by Salim, right?

  25   A.  Well, once he tried to come out of the cell for me to


   1   contain the area, yes, I had to put my foot there.

   2   Q.  So he couldn't attack you?

   3   A.  Right.

   4   Q.  So you only had to deal with one person at a time, right?

   5   A.  Yes.

   6   Q.  And you and Officer Maiden were concentrating on Khalfan

   7   Mohamed at that time, weren't you?

   8   A.  Well, Maiden came afterwards.  I was at the time pretty

   9   much subduing him towards the wall.

  10   Q.  Well, do you recall putting a handcuff on him at some

  11   point?

  12   A.  Yes.

  13   Q.  And do you recall Officer Maiden also putting a handcuff

  14   on him?

  15   A.  Officer Maiden was helping me keep him down because he was

  16   struggling.

  17   Q.  My question is, do you recall Officer Maiden putting a

  18   handcuff on him?

  19   A.  No.

  20   Q.  At the point at which you were doing that, that is,

  21   pushing him against the wall and handcuffing him, did he still

  22   have anything in his hands that you could see?

  23   A.  I can't recall.  No, not that I know of.

  24   Q.  And you have told us everything you have seen he had, have

  25   you not?


   1   A.  Yes.

   2   Q.  One of the things you know from your training is that any

   3   evidence needs to be preserved carefully, isn't that fair to

   4   say?

   5   A.  Yes.

   6   Q.  And so, for example, if someone had blood on their hands,

   7   you wouldn't allow them to wash their hands, would you?

   8   A.  No.

   9   Q.  You wouldn't allow them to wipe it off if you could help

  10   it, would you?

  11   A.  No.

  12   Q.  And from the time you were on top of Mr. Mohamed, you

  13   never let him wash his hands, did you?

  14   A.  No.

  15   Q.  And you never gave him anything to wipe his hands off on,

  16   did you?

  17   A.  No.

  18   Q.  At some point you talked about them, that is, Mr. Salim

  19   and Mr. Mohamed, being taken away from the front of Cell No. 6

  20   and brought to other areas, correct?

  21   A.  Yes.

  22   Q.  Did you personally take Mr. Mohamed, Khalfan Mohamed, to

  23   an area which you said was near the office?

  24   A.  Yes.

  25   Q.  And did you personally take Mr. Salim to the area near


   1   what we have described as Cell No. 1?

   2   A.  No.

   3   Q.  Do you know who did that?

   4   A.  No.

   5   Q.  Did you see the officers who did that?

   6   A.  No.

   7   Q.  Did you see anyone strike Mr. Salim with any object?

   8   A.  No.

   9            MR. STERN:  I have no other questions.  Thank you.

  10            THE COURT:  Redirect.

  11            MR. GARCIA:  Yes, thank you, Judge.


  13   BY MR. GARCIA:

  14   Q.  Officer, you were describing a blind corner as you got to

  15   the back of Cell 6.  Do you recall that?

  16   A.  Yes.

  17            MR. GARCIA:  If we could have Government Exhibit 4011

  18   displayed just for the witness at this point.

  19   Q.  Is that a fair photograph of that area as you are coming

  20   back towards Cell 6?

  21   A.  Yes.

  22            MR. GARCIA:  Your Honor, I offer 4011.

  23            THE COURT:  Received.

  24            (Government Exhibit 4011 received in evidence)

  25            MR. GARCIA:  If we could display it for the jurors.


   1   Q.  On the photo as you are looking at it, can you describe

   2   for us the corner you are talking about?

   3   A.  The right side, which the utility closet is located.

   4   Q.  So the right wall here on the right of 4011?

   5   A.  Right.

   6   Q.  And the item on the floor about dead center of the

   7   diagram, that's what, big item?

   8   A.  The plexiglass that I grabbed.

   9   Q.  And did that break during the course of your struggle, if

  10   you know?

  11   A.  Actually, I don't recall it breaking.

  12   Q.  And Mr. Stern asked you some questions about Mr. Mohamed's

  13   hands.  Do you recall telling the FBI that Mohamed had blood

  14   on his hands?

  15            MR. STERN:  Objection.

  16            THE COURT:  Yes.  Sustained.  Form of the question.

  17   Q.  During the course of your struggle with Mr. Mohamed, did

  18   you look at his hands?

  19   A.  Yes.

  20   Q.  Do you recall seeing blood on the Inmate Mohamed's hands?

  21   A.  Salim?

  22   Q.  This defendant.

  23   A.  Oh.  I don't recall.

  24   Q.  I'm going to show you government exhibit, marked for

  25   identification only, 35164 and ask you to read the last few


   1   lines on page 1.

   2   A.  "Jenkins got a visual" --

   3   Q.  Not aloud.  I'm sorry.  To yourself.

   4   A.  Okay.

   5   Q.  Does that refresh your recollection as to whether or not

   6   you saw anything on Mohamed's hands?  Your recollection, not

   7   what the report says.

   8   A.  Yes.

   9   Q.  And what, if anything, do you recall yourself seeing on

  10   this defendant's hands?

  11   A.  Says blood.

  12   Q.  Not what it says.  I'm sorry, officer.  Your recollection.

  13            Do you recall, and I'll take the report back, do you

  14   recall on your own whether or not you saw anything on

  15   Mohamed's hands when you saw him in the corner?

  16   A.  Yes, just the bottle that he had in his hand.

  17   Q.  And do you recall seeing blood on his hands?

  18            MR. STERN:  Objection.

  19            THE COURT:  Sustained.

  20   Q.  Does this refresh your recollection as to anything else

  21   you saw on Mohamed's hands?

  22            MR. STERN:  Objection.  It's been asked and answered.  

  23            THE COURT:  I'll allow it.

  24   Q.  Does this report refresh your recollection, your

  25   recollection, as to anything else you saw on Mohamed's hands?


   1   A.  Yes.

   2   Q.  What was that?

   3   A.  Blood on his hands.

   4            MR. GARCIA:  Thank you.


   6   BY MR. STERN:

   7   Q.  Officer, when Mr. Garcia asked you if that report

   8   refreshed your recollection about blood on the hands, it did,

   9   correct?

  10   A.  Yes.

  11   Q.  You're not just telling us what that report says, are you?

  12   A.  No.

  13   Q.  And when I asked you about your recollection of

  14   speculating about what happened to Officer Pepe, that did not

  15   refresh your recollection, correct?

  16   A.  Yes, it did.

  17   Q.  Oh, it did.  You now, as you sit here, recall that your

  18   understanding to the FBI was that Pepe had been stabbed by

  19   Salim on his way back to his cell?

  20            MR. GARCIA:  Objection, form.

  21            THE COURT:  As to form I sustain the objection.

  22            MR. STERN:  Yes.

  23   Q.  You recall I had you look at a document, do you not?

  24   A.  Yes.

  25   Q.  And I asked you if that document refreshed your


   1   recollection about a particular statement you had made to an

   2   agent of the FBI, correct?

   3   A.  Yes.

   4   Q.  I'm asking you now, having had an opportunity to think

   5   about it, did that document refresh your recollection as to

   6   whether or not you told Agent Foelsch that you believed, based

   7   on the pattern of blood you saw, that Officer Pepe had been

   8   stabbed by Salim on the way back to his cell?  Is that your

   9   recollection as you sit here now?

  10   A.  Yes.

  11            MR. STERN:  Thank you.  I have nothing else.

  12            MR. GARCIA:  One thing, your Honor.

  13            THE COURT:  Yes.


  15   BY MR. GARCIA:

  16   Q.  Agent Jenkins, did you look inside the sell that day?

  17            MR. STERN:  Objection.

  18            MR. GARCIA:  Goes to pattern of blood.

  19            THE COURT:  Overruled.

  20   Q.  Did you look inside Cell 6 that day prior to talking to

  21   the FBI?

  22   A.  Yes.

  23   Q.  Do you recall what the blood looked like inside Cell 6,

  24   inside the cell?

  25   A.  Yes.


   1   Q.  Was there, is it fair to say --

   2            Describe it.  Was there a great deal of blood?

   3   A.  Yes, a great deal.

   4   Q.  More blood inside Cell 6 or out?

   5   A.  More blood inside.

   6            MR. GARCIA:  Nothing further.


   8   BY MR. STERN:

   9   Q.  I think you said, did you not, that you looked inside the

  10   cell before talking to the FBI, correct?

  11   A.  Excuse me?

  12   Q.  You said, did you not, that you looked inside that cell

  13   before you spoke with the agent of the FBI?

  14   A.  Yes.

  15   Q.  And you still rendered the opinion you just discussed to

  16   the FBI, didn't you?

  17   A.  Yes.

  18            MR. STERN:  Okay.  Thanks.

  19            THE COURT:  All right.  Officer, you may step down.

  20            (Witness excused)

  21            MR. GARCIA:  The government calls Lance Maiden.


  23        called as a witness by the government,

  24        having been duly sworn, testified as follows:



   1   BY MR. GARCIA:

   2   Q.  Mr. Maiden, where do you work?

   3   A.  I work at the Metropolitan Correctional Center.

   4   Q.  And what is your job over at the MCC?

   5   A.  I have the position of lieutenant right now.

   6   Q.  And back in the fall of 2000, what was your job?

   7   A.  I was an officer assigned to the special investigations

   8   office in the prison.

   9   Q.  And about how long have you worked for the Bureau of

  10   Prisons?

  11   A.  Ten years.

  12   Q.  Were you working on November 1, 2000?

  13   A.  I was working in the special investigations office, which

  14   is located on the third floor.

  15   Q.  Third floor of the facility?

  16   A.  Yes.

  17   Q.  And if you could just keep your voice up a little bit,

  18   maybe talk a little closer to the microphone.  Thank you.

  19            What was your shift on November 1, 2000?

  20   A.  I was working the day shift.

  21   Q.  What would the hours be?

  22   A.  7:45 to 4:15.

  23   Q.  Did there come a time on the morning of November 1 that

  24   you heard an alarm go off?

  25   A.  Yes.


   1   Q.  And could you tell us about what time that was?

   2   A.  That was about 10 a.m.

   3   Q.  And what did you do after you heard the alarm?

   4   A.  I ran to the elevator on the third floor to respond to the

   5   scene of the alarm.

   6   Q.  Where was that?

   7   A.  That was on 10 South.

   8   Q.  And did there come a time you arrived at 10 South Unit

   9   door?

  10   A.  Yes.

  11   Q.  And if you recall, when you got to the 10 South Unit

  12   doorway, who else was there?

  13   A.  There was numerous other staff members, some other

  14   correction officers.  We were trying to gain entrance into the

  15   10 South Unit.

  16   Q.  And was Officer Jenkins there?

  17   A.  Yes.

  18   Q.  And what did you do when you got to the door of 10 South?

  19   A.  We went banging on the door so the officer could come to

  20   the door and open the door so we can get in and find out what

  21   was the problem, what was the emergency.

  22   Q.  And as you were at that door, did there come a time you

  23   learned that there was an inmate on the floor unrestrained?

  24   A.  Yes.

  25   Q.  Tell us how that happened.


   1   A.  Officer Jenkins was looking through the glass, and he

   2   turned back and looked to the rest of us, the rest of the

   3   other staff, and said something like, I see an inmate, or,

   4   there's an inmate that's loose.  And that's what I heard.

   5   Q.  And did there come a time that you entered the second door

   6   into the 10 South unit?

   7   A.  Yes.

   8   Q.  Could you tell us what happened as you entered the unit?

   9   A.  As we entered the unit, we observed some attorneys, some

  10   legal people in the rooms off to the left and right.  There

  11   was no sign of the officer, no sign of the inmates.

  12   Q.  And you mentioned you saw some legal people, these are

  13   civilians?

  14   A.  Yes.

  15   Q.  Could you tell us who you remember seeing there,

  16   civilians, on the floor that day as you entered the unit?

  17   A.  Directly straight ahead as soon as we entered the unit I

  18   remember there was a female civilian.  I think she had blond

  19   hair.  And there was a few people off to the attorney room on

  20   the right-hand side.  I'm not exactly sure how many.

  21            MR. RUHNKE:  Could we ask the witness to keep his

  22   voice up a bit?

  23            THE COURT:  Keep your voice up please.

  24   Q.  I'm sorry.  Officer, if you could speak a little closer to

  25   the microphone and keep your voice up.


   1            And after you got into this area of 10 South in the

   2   front, what did you do next?

   3   A.  We started proceeding to the back, to the direction of

   4   where Jenkins saw the inmate run back to, which was off to

   5   the --

   6            MR. GARCIA:  If we could have Government Exhibit

   7   4000.

   8   Q.  I'm sorry, if you could show us on the diagram which area.

   9   A.  Okay.  We started proceeding towards Cell No. 2 and Cell

  10   No. 3, down that corridor.

  11   Q.  What happened as you proceeded down the corridor?

  12   A.  We didn't see anybody.  It was very quiet at that point.

  13   We proceeded towards that office, and as we approached Cell

  14   No. 4, we started seeing large amounts of blood on the floor

  15   and some blood on the walls.

  16   Q.  What did you do as you got past this area, lower

  17   right-hand corner of the diagram, Cell 4, Cell 5?

  18   A.  We kept proceeding towards the recreation area and the

  19   lieutenant's area.  At one point I heard a noise maybe like a

  20   door closing.  It was like a metal kind of sound.  We knew

  21   that this was a dead end and that the only area we can go was

  22   towards Cell No. 6, and we kept moving in that direction.

  23   Q.  And were you carrying anything at this time?

  24   A.  No.

  25   Q.  What happened after that?


   1   A.  We proceeded towards the recreation area, towards the

   2   lieutenant's office, and as we approached the second office on

   3   the right-hand side, something startled Officer Jenkins and he

   4   grabbed a large plexiglass shield that was on the wall.  Once

   5   I saw him do that, I knew that he saw something that was an

   6   emergency in his eyes and I followed him towards Cell No. 6.

   7   Q.  What happened as you got towards the back, towards the

   8   area of Cell No. 6?

   9   A.  As we started running towards Cell No. 6, I saw Inmate

  10   Mohamed Khalfan in the corner in between the electrical closet

  11   and Cell No. 6.

  12   Q.  And what was he doing when you first saw him?

  13   A.  He was in a fighting stance.  His hands were up in the

  14   air.  He had some type of object in one of his hands and he

  15   was bouncing a little bit up and down, as if he was waiting

  16   for us.

  17   Q.  And what happened after you saw him?

  18   A.  We attempted to restrain him, and in the process the

  19   plexiglass shield broke.  He threw this, some type of reddish

  20   liquid on us in our faces.  He punched me in my mouth and he

  21   actively resisted being restrained.

  22   Q.  You said when you came into this area you saw the Inmate

  23   Mohamed.  Had you seen that inmate before this date?

  24   A.  Yes.

  25   Q.  And were you familiar with the way he looked?


   1   A.  Yes, he was.

   2   Q.  And looking around the courtroom today, do you see him?

   3   A.  Yes, he's right over there.

   4   Q.  Could you describe something he is wearing?

   5            MR. STERN:  We'll stipulate it is Khalfan Mohamed.

   6            THE COURT:  The identification of the defendant K.K.

   7   Mohamed is conceded.

   8   BY MR. GARCIA:

   9   Q.  You said that he was squirting some type of liquid toward

  10   you?

  11   A.  Yes.

  12   Q.  Would you describe it, color, or --

  13   A.  It was a reddish-type liquid that he was squirting from

  14   some sort of plastic bottle.

  15   Q.  And to the best of your knowledge, did he strike you with

  16   that liquid?  Did that liquid strike you?  I'm sorry.

  17   A.  Yes.  Yes, it did.

  18   Q.  And during the course of your struggle with this

  19   defendant, did you see any other inmates?

  20   A.  Yes, I did.

  21   Q.  Could you tell us about that.

  22   A.  As we were attempting to restrain Inmate Khalfan Mohamed,

  23   Inmate Salim attempted to come out of Cell No. 6 and attack us

  24   from that direction.  Officer Jenkins used his foot to kick

  25   the door shut as Salim tried to come out and attack us.


   1            At that point, I lost track of Inmate Salim while

   2   other staff members were restraining him.

   3   Q.  And what did you do?

   4   A.  We were at that point, we were on the floor struggling

   5   with Khalfan Mohamed, trying to get the handcuffs on him.  He

   6   wouldn't let us put those on him.  We had to pull his arms and

   7   get the handcuffs on.  He wouldn't let us do that.  And then I

   8   stood up.

   9   Q.  And did there come a time you saw an officer named Louis

  10   Pepe on the floor?

  11   A.  Yes.

  12   Q.  Tell us where you first saw Officer Pepe that morning?

  13   A.  As I stood up, I looked at cell -- I looked at Cell No. 6

  14   and I saw Louis Pepe standing up from the floor of the cell as

  15   if he was just standing straight up.  And he was looking out,

  16   out of the glass of the cell door at us and he was covered in

  17   blood.  He had this object protruding from his eye and his

  18   shirt was all torn.  His tie was off.  And that's what I saw.

  19   Q.  And did there come a time you saw Officer Pepe come out of

  20   that cell, Cell No. 6?

  21   A.  Yes.

  22   Q.  And was he able to walk off the floor or was he carried

  23   off the floor?

  24   A.  He was able to walk.

  25   Q.  And after the inmates were restrained, did you assist in


   1   securing the crime scene?

   2   A.  Yes.

   3   Q.  How was that done?

   4   A.  After the inmates were restrained and moved out of the

   5   area, any other officers or staff that had no active reason to

   6   be there, we were told to move them out of the area, and I

   7   went to retrieve a video camera so we could videotape the area

   8   and the scene as it was.

   9   Q.  And you mentioned that you were struck during the struggle

  10   by the defendant Khalfan Mohamed.  Did you receive any

  11   injuries?

  12   A.  Yes, I had a swollen lip and I had some scratches I think

  13   on my hand.

  14            MR. GARCIA:  And if we could show the witness

  15   Government Exhibit 4072.

  16   Q.  Is that a photo taken November 1st?

  17   A.  Yes, it is.

  18   Q.  Does that show your face after the fight?

  19   A.  Yes, it does.

  20            MR. GARCIA:  And if we could offer Government Exhibit

  21   4072 and display it for the jury.

  22            THE COURT:  Received.

  23            (Government Exhibit 4072 received in evidence)

  24   BY MR. GARCIA:

  25   Q.  Could you just describe for us what we are seeing here?


   1   A.  There's a scratch on my, on the left side of my face.

   2   Q.  And again, you got this scratch subduing this defendant?

   3   A.  Yes, sir.

   4   Q.  Do you recall what type of clothing you were wearing on

   5   November 1st?

   6   A.  I was wearing a long-sleeve white uniform shirt and gray

   7   slacks.

   8   Q.  To the best of your recollection, did the liquid that was

   9   sprayed by this defendant get on your shirt?

  10   A.  Yes, it did.

  11   Q.  I would like to show you item Government Exhibit 4302.

  12            Have you had a chance to examine this shirt prior to

  13   coming to court today?

  14   A.  Before I turned it over to the FBI.

  15   Q.  And prior to coming to court today did you again have an

  16   opportunity to examine that particular exhibit, that shirt;

  17   did you have a chance to look at it?

  18   A.  Yes.

  19   Q.  Is that the shirt you were wearing that day?

  20   A.  Yes, it is.

  21            MR. GARCIA:  At this time, your Honor, I would offer

  22   4302.

  23            MR. STERN:  No objection.

  24            THE COURT:  4302, received.

  25            (Government Exhibit 4302 received in evidence)


   1            MR. GARCIA:  And if we could display 4302A-P for the

   2   witness.

   3   A.  Should I open this up?

   4   Q.  No, that's okay.

   5            If you just take a look on the screen, is that a

   6   photo of the shirt that you have in the bag in front of you?

   7   A.  Yes, it is.

   8            MR. GARCIA:  And I would offer 4302A-P.

   9            THE COURT:  Received.

  10            (Government Exhibit 4302A-P received in evidence)

  11            MR. GARCIA:  And if we could display it for the jury.

  12   Q.  Did you in fact get some stains from the sauce that was

  13   sprayed by -- this liquid that was sprayed by the defendant on

  14   the shirt?

  15   A.  Yes, I did.

  16            MR. GARCIA:  And if we could show the witness

  17   4302B-2.

  18   Q.  Are those some of the stains shown in that photo close up?

  19   A.  Yes, they are.

  20            MR. GARCIA:  Offer 4302B-2 and display.

  21            MR. STERN:  No objection.

  22            THE COURT:  Received.

  23            (Government Exhibit 4302B-2 received in evidence)

  24   BY MR. GARCIA:

  25   Q.  Officer Maiden, are you generally familiar with the


   1   commissary at the MCC?

   2   A.  Somewhat.

   3   Q.  And generally, what is a commissary?

   4   A.  A commissary is a part of the prison that sells items to

   5   the inmates, such as toiletry items and snack food items and

   6   some sanitary items.

   7            MR. GARCIA:  And if we could display for the witness

   8   only Government Exhibit 4070.

   9   Q.  To the best of your knowledge, is that an item that was

  10   available at the commissary prior to November 2000?

  11   A.  Yes, it was.

  12            MR. GARCIA:  The government would then offer 4070,

  13   your Honor.

  14            THE COURT:  Received.

  15            (Government Exhibit 4070 received in evidence)

  16            MR. GARCIA:  If we could display that to the jury.

  17   Q.  Again, is that a comb that was offered through the

  18   commissary prior to November 1, 2000?

  19   A.  Yes, it was.

  20            MR. GARCIA:  If we could show the witness again only

  21   Government Exhibit 4071.

  22   Q.  Is that an item that was available at the commissary prior

  23   to November 2000?

  24   A.  Yes.

  25            MR. GARCIA:  Your Honor, the government would offer


   1   4071.

   2            THE COURT:  Received.

   3            (Government Exhibit 4071 received in evidence)

   4   BY MR. GARCIA:

   5   Q.  Officer Maiden, again for the jury, was this a brush that

   6   was available at the commissary?

   7   A.  Yes, it was.

   8            MR. GARCIA:  I have nothing further, Judge.

   9            THE COURT:  Mr. Stern.


  11   BY MR. STERN:

  12   Q.  Officer Maiden -- Lieutenant Maiden, I would like to begin

  13   by talking about the commissary a little, if we could.

  14   Inmates at MCC can have money in an account, can they not?

  15   A.  If they have money sent to them.

  16   Q.  Right.  Family members could give it to them, right?

  17   A.  Yes.

  18   Q.  Friends, as long as it goes through the institution, they

  19   are allowed to have that money there, not on themselves but in

  20   an account?

  21   A.  Correct.

  22   Q.  And it's from that account that inmates are allowed to buy

  23   various items in the commissary?

  24   A.  Yes.

  25   Q.  And some of those are food items, right?


   1   A.  Yes.

   2   Q.  And some of them are clothing items like sweat pants?

   3   A.  Correct.

   4   Q.  And some are the items like we have just seen, combs and

   5   brushes, right?

   6   A.  Correct.

   7   Q.  And those items are available to every inmate at MCC who

   8   has the money to buy them, right?

   9   A.  No.  Depending on their status, their security status in

  10   the institution, there are some items that they should not be

  11   allowed to purchase.

  12   Q.  Well, the items you were just shown, a brush and a comb,

  13   do you know if they were allowed to purchase those on 10

  14   South?

  15   A.  I'm not sure.

  16   Q.  Did you review orders, that is, commissary orders, from

  17   anybody on 10 South to see if they should purchased those

  18   kinds of items?

  19   A.  No, I didn't.  That wasn't my job.  I didn't have access

  20   to that.

  21   Q.  It wasn't your job?

  22   A.  I didn't have access to those papers.

  23   Q.  Okay.

  24   A.  That was somebody else.

  25   Q.  You talked about the time at which you first saw Khalfan


   1   Mohamed near Cell No. 6, right?

   2   A.  Yes.

   3   Q.  When you came around the corner near Cell No. 6, who was

   4   ahead, you or Officer Jenkins?

   5   A.  Officer Jenkins was off to my left-hand side.

   6   Q.  So you were next to one another?

   7   A.  I was slightly behind to the right of Officer Jenkins.

   8   Q.  And when you came around that corner, did you both have

   9   pretty much the same visual angle?

  10   A.  No, depending on where we were looking at.

  11   Q.  So could you see things that Officer Jenkins could not, as

  12   far as you know?

  13   A.  I would say so.

  14   Q.  The minute you saw Khalfan Mohamed, did he immediately

  15   attack you?

  16   A.  As soon as I saw -- we were going towards him to restrain

  17   him.

  18   Q.  He wasn't --

  19   A.  As we were directly in front of him, he lunged at us.

  20   Q.  But you approach him?

  21   A.  We had to.

  22   Q.  And Officer Jenkins approached him along with you?

  23   A.  Correct.

  24   Q.  He didn't come running at you from where he was?

  25   A.  He was in a fighting stance, ready and waiting for the


   1   officers to respond to the scene.

   2   Q.  My question, though, is, he didn't come running at you and

   3   Officer Jenkins, you went up to him?

   4   A.  He was not running towards us.

   5   Q.  And Officer Jenkins had in front of him this plexiglass

   6   shield, did he not?

   7   A.  Correct.

   8   Q.  And the idea was that you would use that plexiglass shield

   9   to protect yourselves and, as it turned out, to try and pin

  10   him against the wall?

  11   A.  Correct.

  12   Q.  Now, you were able to see Mr. Mohamed's hands, you said,

  13   right?

  14   A.  Yes.

  15   Q.  And they were clenched, is that fair to say?

  16   A.  Yes.

  17   Q.  And you filled out reports in connection with this case,

  18   did you not?

  19   A.  Yes, I did.

  20   Q.  You also spoke with an FBI agent about this case, correct?

  21   A.  Yes.

  22   Q.  And you never said in any of the reports that you saw

  23   blood on Mr. Mohamed's hands, did you?

  24   A.  I don't recall.

  25   Q.  I'm going to show you your report.


   1            MR. STERN:  And I will have it marked after I have

   2   shown it to him, if that's okay, your Honor.

   3            THE COURT:  Yes.

   4   Q.  Take a look at that and tell me when you are done.

   5   A.  What's the question again?

   6   Q.  Do you say anywhere in that report that you saw blood on

   7   Khalfan Mohamed's hands?

   8            Not what else it might say, just that question.

   9   A.  I don't see that in here.

  10   Q.  You have read that, have you not?

  11   A.  I'm sorry?

  12   Q.  You have read that, have you not?

  13            Take your time, read it carefully, and tell me if

  14   anywhere in there you say you saw blood on Khalfan Mohamed's

  15   hands.

  16            (Pause)

  17   A.  I don't see that in this report.

  18   Q.  And that's a report that was signed by you, is it not?

  19   A.  Yes, it is.

  20   Q.  Thank you.

  21            You did this report November 1st, the same day this

  22   incident occurred, didn't you?

  23   A.  Yes.

  24   Q.  Pardon me?

  25   A.  Yes.


   1   Q.  At some point you went and started to, I think the word

   2   you used was subdue Mr. Mohamed, correct?

   3   A.  We tried to place him into restraints.

   4   Q.  You tried, and ultimately you succeeded?

   5   A.  Yes.

   6   Q.  But it involved striking him sometimes, right?

   7   A.  No.

   8   Q.  He was never struck by you?

   9   A.  No, he wasn't.

  10   Q.  Never struck with this shield?

  11   A.  The shield, we used the shield to try to restrain him on

  12   the wall.  As he lunged towards the shield, the shield broke.

  13   Q.  So his lunging towards the shield is what broke it, not

  14   you striking him with it?

  15   A.  Well, as well as us using the shield to pin the inmate.

  16   Q.  Did it break when he first lunged at it?

  17   A.  It happened at the same time.

  18   Q.  So you never were able to use it to try to restrain him?

  19   A.  The shield is used to pin the inmate, not to restrain him.

  20   Q.  Okay.  My question was this:  Jenkins is holding the

  21   shield, right?

  22   A.  Yes.

  23   Q.  Not Carrino?

  24   A.  I'm sorry?

  25   Q.  Carrino is not holding the shield; Jenkins is holding the


   1   shield?

   2   A.  Jenkins is holding the shield.

   3   Q.  And you say Khalfan Mohamed lunges at the shield, right?

   4   A.  Correct.

   5   Q.  And that's when the shield breaks?

   6   A.  It happened at that time.

   7   Q.  So did you ever use that shield or did Officer Jenkins

   8   ever use that shield to pin Khalfan Mohamed up against the

   9   wall?

  10   A.  We weren't able to because the shield broke.

  11   Q.  So then you had to begin using your hands, right?

  12   A.  We used our hands to restrain Khalfan Mohamed.

  13   Q.  And did you strike him at all during the time you were

  14   trying to restrain him?

  15   A.  No.  Inmate Khalfan struck me.  He punched me in my mouth.

  16   Q.  Did you strike him at all?

  17   A.  No, I didn't.

  18   Q.  Did you see Officer Jenkins strike him at all?

  19   A.  No.

  20   Q.  You just grabbed him and restrained him without punching

  21   him in any way?

  22   A.  Without punching him.  We had to take him -- we had to

  23   restrain him onto the floor.

  24   Q.  When you say "restrain him onto the floor," did any part

  25   of his body hit the floor vigorously when you were restraining


   1   him?

   2   A.  He wouldn't allow us to restrain him.  We had to force him

   3   to the floor in order to place the hand restraints, the

   4   handcuffs on his hands.

   5   Q.  I'm asking you, while you were doing that, do you recall

   6   any part of his body hitting the floor hard?

   7   A.  No, I don't.

   8   Q.  Placed gently to the floor?

   9   A.  No, not gently.

  10   Q.  Okay.

  11            THE COURT:  The exhibit number for the report?

  12            MR. STERN:  It is not in evidence.

  13            THE COURT:  Yes, but identification number.

  14            MR. GARCIA:  Yes, it's 35165-E.

  15            THE COURT:  Have that again?

  16            MR. GARCIA:  35165-E.

  17            THE COURT:  For identification, only.

  18            MR. GARCIA:  Yes, Judge.

  19   BY MR. STERN:

  20   Q.  At some point Khalfan Mohamed was taken from the area in

  21   front of Cell No. 6 to another area, right?

  22   A.  Correct.

  23   Q.  Where was that?

  24   A.  The next time I saw him he was by the kitchen area in 9

  25   South, the unit directly below 10 South.


   1   Q.  So you didn't participate in any way in bringing him to

   2   another area on 10 South?

   3   A.  No, I didn't.

   4   Q.  Did you participate in any way in bringing Salim to

   5   another area away from Cell No. 6 on 10 South?

   6   A.  No, I didn't.

   7   Q.  Do you know the officers who did bring Salim from the area

   8   in front of Cell 6 to another area on 10 South?

   9   A.  I can't say for sure.  I would have to look at the report.

  10   Q.  Which report do you mean when you say that?

  11   A.  The report of which officers were on the scene.

  12   Q.  Do you recall the officers who were on the scene?

  13   A.  Not all of them.

  14   Q.  Tell me which ones you recall.

  15   A.  Officer Jenkins was there, myself --

  16   Q.  Let's do them one at a time.

  17            Officer Jenkins did not participate, as far as you

  18   know, in bringing Salim from Cell No. 6 to another area on 10

  19   South?

  20   A.  I can't say that.  After Mohamed was restrained and we saw

  21   what happened to Louis Pepe, I responded down to the third

  22   floor to get the video camera so we could videotape the crime

  23   scene.

  24   Q.  Even if you had a list of officers, you wouldn't know who

  25   it was who brought Salim from the area of Cell No. 6 to


   1   another area on 10 South, is that fair to say?

   2   A.  That's fair to say.

   3   Q.  Okay.  You said you were a special investigative agent; is

   4   that right?

   5   A.  No, that's not right.

   6   Q.  What is it you do there?

   7   A.  I'm a lieutenant at the Metropolitan Correctional Center.

   8   Q.  I don't mean right now, I mean at that time.

   9   A.  I was an officer assigned to the special investigations

  10   office at the institution.

  11   Q.  And had you received some training in how to do

  12   investigations?

  13   A.  On-the-job training.

  14   Q.  There came a time, did there not, when you knew that a

  15   crime scene video was going to be made of this particular

  16   crime screen?

  17   A.  Right then and there we got the video camera and taped the

  18   screen.

  19   Q.  Immediately after this happened, right?

  20   A.  Not immediately, about ten minutes later.

  21   Q.  And you did that with another person who works at MCC,

  22   correct?

  23   A.  Correct.

  24   Q.  Who was that?

  25   A.  Joe Romenter.


   1   Q.  As this crime scene video was being made, you knew that it

   2   would be evidence or could be evidence in a case at some

   3   point, right?

   4   A.  Correct.

   5   Q.  And so you knew that it should be as accurate as it could

   6   possibly be, did you not?

   7   A.  Yes.

   8   Q.  And you would not stand by and let inaccuracies enter a

   9   crime scene video, would you?

  10   A.  That's correct.

  11   Q.  That would be a very poor practice, would it not?

  12   A.  That wouldn't happen.

  13   Q.  Now, you were running the camera while Mr. Romenter was

  14   commenting on the crime scene, fair to say?

  15   A.  I wouldn't say he was commenting on it.

  16   Q.  Well, do you recall him beginning by giving his name and

  17   the time?

  18   A.  Yes, I do.

  19   Q.  And you were right there, within feet of him, were you

  20   not?

  21   A.  Correct.

  22   Q.  And you could hear the words that he was saying, couldn't

  23   you?

  24   A.  Yes.

  25   Q.  Because you were running the camera and both the image and


   1   the words were being picked up by the camera, correct?

   2   A.  That's correct.

   3   Q.  You heard him give the names and numbers of both Khalfan

   4   Mohamed and Mamdouh Salim, correct?

   5   A.  I don't recall.

   6   Q.  Do you recall that he talked about what Mamdouh Salim and

   7   Khalfan Mohamed had each done?

   8   A.  No, I don't.

   9   Q.  Do you recall him saying while you were filming it, "One

  10   inmate was in a corner and had a large piece of plexiglass in

  11   front of him"?  Do you recall him saying that?

  12   A.  No, I don't.

  13   Q.  If he said that, you didn't correct him, did you?

  14   A.  I don't recall Mr. Romenter saying that.

  15   Q.  If you would have heard him make a misstatement --

  16            THE COURT:  No.  No.  No.

  17            MR. STERN:  Pardon me?

  18            THE COURT:  The Court objects to the form of that

  19   question.

  20   Q.  Well, do you recall that you and Officer Rementer went

  21   over where the broken plexiglass shield was?

  22   A.  Mr. Rementer is the special investigative agent at the

  23   institution and he was my boss at the time.  If I was

  24   videotaping him narrating the crime scene, I would not

  25   interrupt him under any circumstances, unless I saw he was in


   1   danger.

   2   Q.  Would you correct him after he was done?

   3   A.  After he was done, if I thought there was something he

   4   should know about, I would tell him.

   5   Q.  Would you tell him what you said isn't what really

   6   happened?

   7   A.  If that was the case.

   8   Q.  If that was the case, that's what you would do?

   9   A.  If something was inappropriate, I would tell him.

  10   Q.  Do you recall him saying that "Salim sprayed pepper

  11   juice," and then showed two bottles on the video?

  12   A.  I recall when Inmate Salim lunged -- ran -- well, came out

  13   of the Cell No. 6 and lunged at the officers he had a plastic

  14   container, I don't recall whether it was one or two in his

  15   hands, and he was spraying that liquid at the officers, also.

  16   During the filming of the video, I remember seeing plastic

  17   bottles in that same area with this red liquid.

  18   Q.  Two plastic bottles?

  19   A.  There was more than one.  I'm not exactly sure how many

  20   there was altogether.

  21            MR. STERN:  I have nothing else.  Thank you.

  22            THE COURT:  Redirect?

  23            MR. GARCIA:  Briefly, Judge.


  25   BY MR. GARCIA:


   1   Q.  Officer Maiden, I'm showing you 35165-E for

   2   identification.  Is that the report you were testifying about?

   3   A.  Looks like the same report.

   4   Q.  Is that your report from November 1?

   5   A.  Yes.

   6            MR. GARCIA:  I offer 35165-E.

   7            THE COURT:  Any objection?

   8            MR. STERN:  Objection, yes.

   9            THE COURT:  You are objecting?

  10            MR. STERN:  Pardon me?

  11            THE COURT:  Is there an objection?

  12            MR. STERN:  Yes, there is.

  13            THE COURT:  May I see it, please?

  14            MR. GARCIA:  Your Honor, it goes to context.

  15            THE COURT:  I will sustain the objection.  The

  16   officer is here.

  17            MR. GARCIA:  Thank you, Judge.  I have nothing

  18   further.

  19            THE COURT:  Anything further?

  20            MR. STERN:  No.

  21            THE COURT:  All right, then we'll break for lunch and

  22   lunch has arrived and we'll resume at 2:15.

  23            (Pages 7725 through 7746 filed under seal)

  24            (Continued on next page)



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

   2                             2:15 p.m.

   3            THE COURT:  All right.  Who is the next witness?

   4            MR. GARCIA:  Glenn Carrino, your Honor.

   5            THE COURT:  Let's bring in the jury.

   6            (Jury enters)

   7            THE COURT:  Good afternoon.  The government may call

   8   its next witness.

   9            MR. GARCIA:  The government calls Glenn Carrino.


  11        called as a witness by the government,

  12        having been duly sworn, testified as follows:


  14   BY MR. GARCIA:

  15   Q.  Sir, where do you work?

  16   A.  At the Metropolitan Correctional Center.

  17   Q.  At what is your job at MCC?

  18   A.  I'm the lieutenant.

  19   Q.  How long have you been with the Bureau of Prisons?

  20   A.  12 years.

  21   Q.  As part of your duties, have you been assigned to the 10

  22   South Unit of the MCC?

  23   A.  Yes, I have.

  24   Q.  And on occasion is a lieutenant stationed on that floor?

  25   A.  Yes.


   1            MR. GARCIA:  And if we could have Government Exhibit

   2   4000 displayed for the witness and the court.

   3   Q.  And when you are on the 10 South Unit, where would you

   4   primarily stay?

   5   A.  Right where it says "lieutenant's office."

   6   Q.  And that's to the right of the diagram, about halfway

   7   down?

   8   A.  Yes.

   9   Q.  As far as you are aware, Lieutenant, as of November 2000,

  10   were there monitors in that lieutenant's office?

  11   A.  Yes, there was.  My desk was in the middle and I had

  12   monitors on the right and the left of my desk on each side.

  13   Q.  And is it fair to say they were cameras located at

  14   different points on the unit at that time?

  15   A.  Yes.

  16   Q.  And those cameras could be monitored in the lieutenant's

  17   office?

  18   A.  Yes, they can.

  19   Q.  And as far as you were aware, could any of the monitors

  20   and the machines in that office at that time, did any of them

  21   have the capability of taping?

  22   A.  Yes, one.

  23   Q.  As far as you were aware, one?

  24   A.  As far as I was aware of, yes.

  25   Q.  And again, as of November 2000, were you aware of any


   1   procedure for making tapes or storing -- I'm sorry, for making

   2   tapes at the MCC?

   3   A.  No, I was not.

   4   Q.  Or storing tapes?

   5   A.  No.

   6   Q.  And did you ever engage in any of that type of activity

   7   when you were in the lieutenant's office prior to November

   8   2000?

   9   A.  No, I did not.

  10   Q.  In fact, did you ever operate any of that taping machinery

  11   in that office?

  12   A.  No, I did not.

  13   Q.  On November 1, 2000, did you ever remove any tapes from

  14   that office?

  15   A.  No, I did not.

  16   Q.  On that date, November 1, were you working?

  17   A.  Yes, I was.

  18   Q.  And what was your assignment that day?

  19   A.  I was Special Housing Unit lieutenant, SHU lieutenant.

  20   Q.  10 South?

  21   A.  Yes, 10 South, 9 South.

  22   Q.  If I could just, Lieutenant, ask you to speak up just a

  23   little bit and maybe move a little closer to the microphone so

  24   everybody can hear you.

  25            So you were assigned to the 10 South, 9 South unit


   1   that day?

   2   A.  Yes.

   3   Q.  And when did your shift begin?

   4   A.  My hours are at 7:15 to 4:15, but I'm usually in between

   5   quarter to 5 and 5:00 in the morning.

   6   Q.  As best you can recollect, that's what time you reported

   7   that day?

   8   A.  Yes.

   9   Q.  What did you do when you reported to work on November 1?

  10   A.  When I came in the morning, at that time I basically did

  11   all my paperwork that's necessary for my job, did my rounds,

  12   checked the area out for discrepancies and stuff, and then

  13   basically made sure my staff was there and present.

  14   Q.  And as part of that process you just described, did you go

  15   up to the 10 South Unit on the morning of November 1?

  16   A.  Yes, I did.

  17   Q.  Best you can recall, about what time was that?

  18   A.  10 South, I was there at approximately 5:00 in the

  19   morning.

  20   Q.  And did there come a time that morning that you went to

  21   get some paperwork signed?

  22   A.  Yes, I did.

  23   Q.  And where did you do that?

  24   A.  Down on the third floor by the captain's office.

  25   Q.  And the name of the captain?


   1   A.  Captain Aponte, Nelson Aponte.

   2   Q.  And did there come a time while you were down waiting to

   3   get that paperwork signed that you heard an alarm?

   4   A.  Yes, I did.

   5   Q.  Could you tell us what you did?

   6   A.  It came over the radio that there was a body alarm on Unit

   7   10 South.  At that point in time, staff that was on that

   8   floor, we stopped what we were doing, proceeded to the

   9   elevator and went up to 10 South.

  10   Q.  And what happened when you got to the door of 10 South?

  11   A.  When we got through the first sallyport, there's two

  12   doors.  The first door we got through because control can pop

  13   that, got into the sallyport, closed that door.  We couldn't

  14   get through the second door.

  15   Q.  And did there come a time when keys arrived for that

  16   second door?

  17   A.  Yes.

  18   Q.  And could you tell us what happened after the second door

  19   was opened?

  20   A.  Once the second door was opened, we -- prior to that, we

  21   had saw movement.  Officer Jenkins at that time had said,

  22   they're out, I see somebody.  I went -- he said that.  I

  23   looked.  I saw the back of an inmate running back toward my

  24   office down toward Cell 6.

  25   Q.  If I could stop you there for a second.  Officer Jenkins


   1   said to you someone's out?

   2   A.  Yes.

   3   Q.  And you looked though the window yourself?

   4   A.  Yes.

   5   Q.  And did you see an inmate?

   6   A.  Yes, I did.

   7   Q.  The back?

   8   A.  The back part, running back towards that area.

   9   Q.  And when you say "that area," if we're looking again at

  10   Government Exhibit 4000, could you just tell us which

  11   direction you saw that inmate?

  12   A.  It's by my office going towards Cell 6, towards the back

  13   here when he's coming around by Cell 5, coming around over by

  14   Cell 6.

  15   Q.  Well, actually we're back, we are at the door right now.

  16   When you look through the window, do you see an inmate at the

  17   door?

  18   A.  When I look through the window, when Jenkins had said that

  19   I saw somebody running, turn around and run.

  20   Q.  And which direction did they run in from the front of the

  21   unit, which direction?

  22   A.  They were running toward, toward my office, and then

  23   coming around.  So it would be toward the right because --

  24   Q.  Toward the right?

  25   A.  When you are looking through the door, you can go straight


   1   to the right or to the left.  It was toward to the right.  The

   2   hallway proceeds down to the other cells.

   3   Q.  And what did you do when you got through the door?

   4   A.  When we got through the door, myself, Officer Jenkins and

   5   responding staff were behind me, ran down toward the area

   6   where that cell was, where we saw the person run, the inmate

   7   run.  When we got there by the corner of Cell 6 on the

   8   right-hand side, Inmate Mohamed was in the right-hand corner.

   9   Q.  Let's back up a little bit.  You came down this corridor

  10   if you are looking at Government Exhibit 4000, Cells 2, 3, 4,

  11   5, you came through this corridor here?

  12   A.  Yes.

  13   Q.  And did you see anything as you were coming down that

  14   corridor?

  15   A.  At that point, when we were coming down the corridor, all

  16   I heard, and I can't say who it was, said, "Grab the shield."

  17   At that point, when I was coming up I saw Inmate Mohamed in

  18   that area straight ahead.  We grabbed the shield off the wall

  19   and proceeded toward it.  As we got toward to where

  20   Mr. Mohamed was, Inmate Mohamed was, he was in the right-hand

  21   corner, as we were approaching him, he started squirting.  He

  22   was in the corner, kind of crouched down a little bit,

  23   squirting something at us.  I don't know what it was.

  24   Q.  Let's slow down a little bit.

  25            You came around the corner and somebody who you don't


   1   recall said "grab a shield"; is that right?

   2   A.  Yes.

   3   Q.  Did somebody grab a shield at that point?

   4   A.  Yes.

   5   Q.  And as far as you can remember on this diagram, about what

   6   area was it that somebody grabbed a shield?  If you could just

   7   give us a location by --

   8   A.  It would be right where the recreation, around that area

   9   is where you see the recreation cell.

  10   Q.  In the lower right-hand corner?

  11   A.  Right in the lower right-hand corner.

  12   Q.  Labeled recreation.

  13            Someone grabbed a shield?

  14   A.  Yes.

  15   Q.  To the best of your recollection, who was it that grabbed

  16   a shield?

  17   A.  I believe it was Officer Jenkins because he was right in

  18   front of me.

  19   Q.  He was in front of you; you were behind?

  20   A.  Yes, he was.

  21   Q.  And you proceeded around the corridor with the shield?

  22   A.  Yes.

  23   Q.  Tell us what happened as you approached the area in front

  24   of Cell 6.

  25   A.  As we approached Cell 6, when I -- like I said, Inmate


   1   Mohamed was trying to squirt us with something.

   2   Q.  When you say he was trying to squirt you, could you tell

   3   us on the diagram where Inmate Mohamed was when you first saw

   4   him?

   5   A.  He was in Cell 6.  He was right by the, in the back part

   6   of that corner where the electrical room is by the telephone,

   7   over in that area in the far right-hand corner, right where

   8   the icon is.

   9   Q.  Right where the arrow is now, where it says E-L-E-C-T on

  10   the diagram?

  11   A.  Yes.

  12   Q.  You keep referring to Inmate Mohamed.  Were you familiar

  13   with Inmate Mohamed prior to that date?

  14   A.  Yes, I was.

  15   Q.  Looking around the courtroom today, do you see the person

  16   you knew as Inmate Mohamed?

  17   A.  Yes, I do.

  18   Q.  Could you point him out for us?

  19   A.  He's sitting right over there with the glasses on and the

  20   beard.

  21            MR. RUHNKE:  Conceded.

  22            THE COURT:  The witness has identified the defendant

  23   K.K. Mohamed.

  24   BY MR. GARCIA:

  25   Q.  Can you tell us now what was this defendant doing when you


   1   first saw him in that corner by the electrical closet?

   2   A.  He was in that corner.  He was crouched, he was up against

   3   the corner of the wall, he was crouched down, and then he had

   4   something, like I said, in his hand.  As we were approaching

   5   toward him, he started squirting that substance at us.

   6   Q.  And did he hit you, as far as you know, with the substance

   7   from that bottle?

   8   A.  Yes, he did.  It was on my clothing, my jacket, my pants

   9   and my shirt.

  10   Q.  What did you do after he squirted you?

  11   A.  At that time, after he started squirting, he saw us

  12   approaching him.  He moved out of the corner a little bit more

  13   toward the middle of that wall where we went straight toward

  14   him with the shield, pushed him against the wall with the

  15   shield.  The shield shattered.

  16            At that point in time he was taken down to the

  17   ground.  I was on top of him.  A few other officers, we

  18   managed to get his right hand handcuffed.  He refused to give

  19   us his other hand.  He was laying on his stomach fighting,

  20   bucking back and forth.  I kept telling him, give me your

  21   hand.  Let go.  Give me your hand.  It was underneath his

  22   body.  He refused to give it.

  23            Finally, I pried it loose and brought it up to the

  24   middle of his back and Officer Jenkins took the other handcuff

  25   and handcuffed him.


   1   Q.  During this time that this is happening on the floor of

   2   this area back by Cell 6, what other officers do you remember

   3   were with you trying to subdue this defendant?

   4   A.  The only other person I can remember is officer -- at that

   5   time Officer Maiden.  There was at that point in time a bunch

   6   more staff were there.  By names, I could not tell you who was

   7   down there.  I was not looking at faces.

   8   Q.  You also mentioned Officer Jenkins as trying to cuff him?

   9   A.  Yes.

  10   Q.  During this activity with this defendant, did you see any

  11   other inmates in that area at any time?

  12   A.  No, I did not.

  13   Q.  Did there come a time you saw the innate Salim?

  14   A.  Toward the end.

  15   Q.  What happened then?

  16   A.  At that point in time, after we got the handcuffs on

  17   Inmate Mohamed, myself, Officer Jenkins, we brought him over

  18   back in front of my lieutenant's office where other responding

  19   staff were by him, supervising him until they got commands

  20   from Captain Aponte what to do with him.

  21            At that point in time all I kept hearing was, "Where

  22   is Officer Pepe?"  And, "Oh, my God.  Officer Pepe."  At that

  23   point in time I proceeded back towards Cell 6, and when I got

  24   to Cell 6, officer -- the door was open and Officer Pepe was

  25   right up against the wall by the shower.


   1   Q.  And could you describe what he looked like for us?

   2   A.  He was up against the wall.  He had blood all over his

   3   body.  He had a black object sticking out of his eye and just

   4   completely covered with blood.  At that point in time myself

   5   and Lieutenant Florez took off, grabbed Officer Pepe, and we

   6   proceeded to take him down to the institutional hospital.

   7   Q.  And was he walking on the floor?

   8   A.  Yes, he was.

   9   Q.  And did you have any conversation with him?

  10   A.  Yes, I did.  On my way down, myself and Lieutenant Florez

  11   were basically directing him to where he had to go.  All he

  12   kept telling me was, "Lieu., I gave them a fight.  I gave them

  13   a fight.  I fought back."

  14   Q.  And where did you escort Officer Pepe to?

  15   A.  At that point in time I took him down to the institutional

  16   hospital downstairs.  At that point in time in the medical

  17   staff situation we had the doctors and the PAs were there,

  18   tried to keep Pepe somewhat calm.  We got him down to the

  19   gurney until staff started washing him, took his shirt off,

  20   cleaning him up.  They took the gauze and basically tried to

  21   hold the comb, whatever it was, the object in his eye from

  22   moving.  So they gauzed it all up so it would not move.

  23            MR. GARCIA:  If I could have the witness shown

  24   Government Exhibit 4074 for identification.

  25   A.  Yes.


   1   Q.  Do you recognize what is depicted in that photograph?

   2   A.  That's Officer Pepe after they wrapped him with the gauze

   3   to hold the thing from moving.

   4   Q.  Is that in the MCC medical facilities?

   5   A.  Yes, it is, on the second floor in the emergency care

   6   room.

   7            MR. GARCIA:  Your Honor, at this time the government

   8   offers 4074.

   9            THE COURT:  4074, received.

  10            (Government Exhibit 4074 received in evidence)

  11            MR. GARCIA:  If we could have that displayed again

  12   now that the jury can see it.

  13   Q.  This is Officer Pepe in the medical unit at the MCC; is

  14   that correct?

  15   A.  Yes.

  16   Q.  And the gauze you were referring to on top of his head

  17   wrapped to keep the object stable?

  18   A.  Whatever the object would stay still so it wouldn't do, I

  19   guess, any more damage.

  20            MR. GARCIA:  If I might have 4303.

  21   Q.  You mentioned earlier that your jacket was sprayed when

  22   you confronted the defendant Khalfan Mohamed; is that correct?

  23   A.  Yes.

  24   Q.  And prior to coming to court did you have an opportunity

  25   to examine the item that's in that bag, 4303?


   1   A.  Yes, I did.

   2   Q.  Is that the jacket you were wearing that day?

   3   A.  That's my jacket.

   4            MR. GARCIA:  And if we could have Government Exhibit

   5   4303P displayed, photo 4303 displayed for the witness.

   6   Q.  Is that a fair photo of that item in the bag?

   7   A.  Yes, it is.

   8            MR. GARCIA:  Your Honor, we would offer 4303P.

   9            MR. RUHNKE:  No objection.

  10            THE COURT:  Received.

  11            (Government Exhibit 4303P received in evidence)

  12            MR. GARCIA:  If we could have that displayed for the

  13   jury.

  14   Q.  Again, that's the coat you were wearing when you responded

  15   on 10 South?

  16   A.  Yes, it was.

  17            MR. GARCIA:  And if we could have shown to the

  18   witness 4303A-P.

  19   Q.  Do you recognize this?

  20   A.  Yes, that's my sleeve of my coat, whatever substance it is

  21   that he squirted at us.

  22            MR. GARCIA:  I'll offer 4303A-P.

  23            THE COURT:  Received.

  24            (Government Exhibit 4303A-P received in evidence)

  25            MR. GARCIA:  Again, if we could have that shown to


   1   the jury.

   2   Q.  Officer Carrino, could you just describe for us what we're

   3   seeing there?

   4   A.  That's the left, my left arm jacket that you see on there

   5   is the substance that was squirted at me and the other staff

   6   by Inmate Mohamed.

   7            MR. GARCIA:  If I neglected to, your Honor, at this

   8   time I would offer Government Exhibit 4303, which is the

   9   actual jacket.

  10            THE COURT:  4303?

  11            MR. GARCIA:  4303 is the item.

  12            THE COURT:  Has been received.

  13            MR. GARCIA:  Thank you, Judge.

  14            THE COURT:  They are all received.

  15   Q.  Lieutenant, are you familiar with the physical layout of

  16   10 South?

  17   A.  Yes, I am.

  18   Q.  And as part of your duties, do you do an inspection of

  19   that floor from time to time?

  20   A.  Yes, I do.

  21            MR. GARCIA:  If we could show the witness Government

  22   Exhibit 4037.

  23   Q.  Do you recognize the scene depicted in this photograph?

  24   A.  Yes, I do.

  25   Q.  What is --


   1   A.  I'm sorry?

   2   Q.  What is it?

   3   A.  That's an electrical box that's up on the ceiling.  That's

   4   right by the storage closet in Cell 6.

   5            MR. GARCIA:  I offer 4037.

   6            MR. STERN:  No objection.

   7            THE COURT:  Received.

   8            (Government Exhibit 4037 received in evidence)

   9   BY MR. GARCIA:

  10   Q.  Now that the jury has this, Lieutenant, could you describe

  11   it again for us here?

  12   A.  What that is is an electrical box with all the electrical

  13   wires going through it.  I couldn't tell you exactly what was

  14   going through that.  That's located up on the ceiling between

  15   right by Cell 6 and then that would be, if you are coming

  16   toward that would be on the left-hand side and on the

  17   right-hand side is the electrical and the storage closet.

  18   Q.  And is this how this box appeared after the incident on 10

  19   South on the morning of November 1?

  20   A.  Yes.

  21   Q.  And is it different than it would usually appear?

  22   A.  Yes.

  23   Q.  Could you describe the difference for us?

  24   A.  It wouldn't be bent down like that or hanging.  It would

  25   be just flush, a piece of metal flush, bolted in there.  You


   1   see there's one screw missing or more, and there would be all

   2   the screws in there.

   3   Q.  And this metal plate on the bottom in the center -- if we

   4   could enlarge that a little bit, perhaps -- bent down in that

   5   way on the center?

   6   A.  It would not.

   7   Q.  And you mention that from time to time you do inspections

   8   of the 10 South floor?

   9   A.  Yes.

  10   Q.  Would you be looking at the ceiling area?

  11   A.  Yes, I would.  I look up, down, look at the walls, I look

  12   at the cells.

  13   Q.  Did you do such an inspection on the morning of November

  14   1?

  15   A.  Yes, I did.

  16   Q.  And did you see this box in this condition?

  17   A.  No, I did not.

  18            MR. GARCIA:  If we could have Government Exhibit 4000

  19   put up for a moment.

  20   Q.  If you could just indicate for us generally on Government

  21   Exhibit 4000 where that junction box is?

  22   A.  It would be right in the ceiling, right where it says

  23   "TEL" and "electric."  I know that's the storage closet, but

  24   it would be right over there.

  25            MR. GARCIA:  If we could enlarge that area, if


   1   possible.

   2   A.  It would be up in the ceiling on that area.

   3   Q.  In the hallway area?

   4   A.  Yes, in the hallway area.

   5   Q.  Approximately between where it says T-E-L and what's

   6   labeled "lab library"; is that correct?

   7   A.  Yes, lab library.

   8            MR. GARCIA:  I have nothing further, Judge.


  10   BY MR. STERN:

  11   Q.  Lt. Carrino, you said you were responsible for the SHU

  12   unit, is that right?

  13   A.  Yes, it is.

  14   Q.  What does that stand for?

  15   A.  Special Housing Unit.

  16   Q.  When you say Special Housing Unit, that means higher

  17   security than other units?

  18   A.  Yes.

  19   Q.  There is special care in how people move from one place to

  20   another?

  21   A.  Yes.

  22   Q.  There is special care taken in searching people, too?

  23   A.  Yes.

  24   Q.  Special care taken in searching people's cells, correct?

  25   A.  Yes.


   1   Q.  And there are procedures established in the SHU unit for

   2   bringing someone to or from their cell to stay in the visiting

   3   area, correct?

   4   A.  Yes, sir.

   5   Q.  And there are policies established for how you treat a

   6   two-person cell when you remove one person from somewhere and

   7   there is another person still in the cell, right?

   8   A.  Yes, there is.

   9   Q.  Tell me what those are.

  10   A.  The way it's written, that there are supposed to be three

  11   people for every inmate that is moved.

  12   Q.  For every?

  13   A.  For every inmate that is moved, there is supposed to be

  14   three staff present.

  15   Q.  Tell me what would happen when you come to get an inmate

  16   from a cell on 10 South.  Describe for me the process.

  17   A.  It will be basically if there are two inmates in a cell,

  18   it would be six staff.

  19   Q.  You are telling me the rules as of November 1st?

  20   A.  Yes.

  21   Q.  Or before that time, correct?

  22   A.  Yes.

  23   Q.  Okay.  I'm sorry.  Go ahead.

  24   A.  That's okay.

  25            The procedure would be it would be three staff for


   1   each inmate.  So, generally, between five to six staff will be

   2   present.  Both inmates would be cuffed, placed down.

   3   Q.  How would they be cuffed?

   4   A.  In the door, there is a food slot in the door.

   5   Q.  Tyes.

   6   A.  The food slot would be opened by the staff member.  As

   7   each inmate would come down, they know that they have to put

   8   their hands to the back.  Handcuffs are placed -- one is

   9   supposed to be placed up against the wall, tell them to go

  10   straight back.  Next inmate will come up the same way.

  11   Q.  Inmate No. 1 comes up, puts his hands through the slot and

  12   he's handcuffed, right?

  13   A.  Yes.

  14   Q.  He's told then to walk all the way to the back of the cell

  15   and face the wall?

  16   A.  Yes.

  17   Q.  A second inmate comes up and he puts his hands through the

  18   slot?

  19   A.  Yes.

  20   Q.  And that inmate is then handcuffed?

  21   A.  Yes.

  22   Q.  What happens then?

  23   A.  Then, it depends how many inmates are being taken out.  If

  24   it's only one inmate taken out of the cell, three staff are

  25   there.  The inmate who is coming out will be -- the door will


   1   be unlocked.  One staff will grab the inmate, hold him, the

   2   door will get locked.

   3   Q.  When you say "hold him," how?

   4   A.  Hold him by his cuffs.

   5   Q.  Cuffs with his chains?

   6   A.  Yes.

   7   Q.  While you are opening the door, someone is watching the

   8   inmate who is told to go all the way to the back?

   9   A.  Yes.

  10   Q.  That's so the two of them can't get together and somehow

  11   gang up, correct?

  12   A.  Yes.

  13   Q.  Go ahead.

  14   A.  At that time, wherever they are going, if he is going into

  15   the attorney conference room or whatever, that inmate will be

  16   placed in the attorney conference room, be escorted with the

  17   staff, and the door will be secured.  That inmate will be

  18   unhandcuffed.  They will proceed back to the other cell and

  19   then proceed to unhandcuff the other inmate.

  20   Q.  That's a well-established procedure for moving inmates on

  21   10 South, correct?

  22   A.  Yes.

  23   Q.  On the day of November 1, do you know if that procedure

  24   was followed when Mamdouh Salim was moved?

  25   A.  No, I do not, sir.  I was not up there.


   1   Q.  Pardon me?

   2   A.  I was not up there.

   3   Q.  So you have no information about that?

   4   A.  No.

   5   Q.  You said at one point you looked through the window and

   6   you saw a person, correct?

   7   A.  Yes.

   8   Q.  As you were waiting in the sallyport looking, and you saw

   9   a person?

  10   A.  Yes.

  11   Q.  Not two people?

  12   A.  No, I saw one.

  13   Q.  Okay.  And that person began to go back towards what you

  14   know as Cell No. 6?

  15   A.  Yes.

  16   Q.  And that's the cell we have talked about where you just

  17   showed the bent electrical box, right?

  18   A.  Yes.

  19   Q.  At some point you and other officers began to go back

  20   through that U-shaped hallway past the lieutenant's office,

  21   right?

  22   A.  Yes.

  23   Q.  And you're working your way backs towards Cell No. 6?

  24   A.  Uh-huh.

  25   Q.  Correct?


   1   A.  Yes.

   2   Q.  And at some point someone picked up a plexiglass shield,

   3   and I think you said that was Jenkins; is that fair to say?

   4   A.  Yes, sir.

   5   Q.  And isn't it true that Jenkins then handed you that

   6   plexiglass shield?

   7   A.  Yes.

   8   Q.  Pardon me?

   9   A.  He handed me part of it.  At this point I couldn't tell

  10   you if I had it all.  I did have part of that shield.

  11   Q.  Well, you filled out a report in connection with this

  12   case, didn't you?

  13   A.  Yes, I did.

  14   Q.  And that report was a report that's required to be filled

  15   out as part of Bureau of Prisons policies and procedures,

  16   right?

  17   A.  Depends what kind of report you're talking about, sir.  I

  18   don't know.

  19   Q.  It's a memorandum from the United States Department of

  20   Justice, Federal Bureau of Prisons, Metropolitan Correctional

  21   Center, New York.  For identification it's 35167-A.

  22   A.  Yes, that's a memorandum of my recollections of that day.

  23   Q.  And you actually read that report once it was typed up,

  24   right?

  25   A.  Yes, I did.


   1   Q.  And then you signed it, and by signing you are saying

   2   what's in here is true?

   3   A.  Yes.

   4   Q.  If there was an error in this document, you wouldn't sign

   5   it, right?  You would say, wait, there's a mistake, let's get

   6   it changed and then I will sign it?

   7   A.  I'm the one who wrote that, sir.  If that's written by me,

   8   if my name is on top of it, it's written by me.

   9   Q.  It's not handwritten, but it's signed by you?

  10   A.  Yes.

  11   Q.  So by signing, you verify what is in it is accurate?

  12   A.  Yes.

  13   Q.  Don't you say in that report that Officer Jenkins handed

  14   you a plexiglass grill cover?

  15   A.  Yes.

  16   Q.  Okay.  Now you come out into the area in front of Cell No.

  17   6 and you don't see Salim, do you?

  18   A.  No, I do not.

  19   Q.  Do you ever see Salim, other than the fleeting glimpse you

  20   got of someone through the door?

  21   A.  Not to the end, no, sir.

  22   Q.  So, at that time, you still haven't seen him, unless that

  23   was him you got a fleeting glimpse of?

  24   A.  Right.

  25   Q.  But you do see Khalfan Mohamed?


   1   A.  Yes, I do.

   2   Q.  And he's backed into a corner about as far as away from

   3   you as he can get, right?

   4   A.  Yes.

   5   Q.  And you have seen him, right?

   6   A.  Yes.

   7   Q.  And you see him look in your direction?

   8   A.  Yes, I do.

   9   Q.  And you're there, correct?

  10   A.  Yes.

  11   Q.  And Jenkins is there, correct?

  12   A.  Yes.

  13   Q.  And Maiden was there?

  14   A.  Yes.

  15   Q.  All three of you, and Khalfan Mohamed is in this fairly

  16   small area in front of Cell No. 6?

  17   A.  Yes.

  18   Q.  Is that right?

  19   A.  Yes, sir.

  20   Q.  Now, at that point does Khalfan Mohamed come running out

  21   of the corner towards you?

  22   A.  No, he does not.

  23   Q.  Does he come running towards you and smash the plexiglass

  24   shield you are holding?

  25   A.  No, he does not.


   1   Q.  You approach him, correct?

   2   A.  At that point, yes.

   3   Q.  And you try and use that shield to pin him against the

   4   wall?

   5   A.  No, sir.  We used that shield -- basically when we were

   6   approaching him, we didn't know what to expect.  Then when he

   7   started squirting the stuff at us, that basically deflected

   8   the stuff that he was squirting at us.

   9   Q.  So a bunch of the stuff got on the shield instead of on

  10   you?

  11   A.  It got on all of us.  It was squirting -- I can't say for

  12   everybody.  I know it got on me.  The shield, we were

  13   approaching him, he was squirting it, we used the shield.

  14   When he saw us still --

  15   Q.  Slow down.  Let's focus on the shield now.

  16   A.  Uh-huh.

  17   Q.  Did a bunch of the stuff, whatever it was, get on that

  18   shield?

  19   A.  I could say some of it.  I can't tell you exactly how

  20   much.

  21   Q.  Do you remember seeing some hit the shield?

  22   A.  Some of it did hit it, yes.

  23   Q.  You were trying to keep that shield between you and

  24   Mr. Mohamed, where he was squirting stuff at you, right?

  25   A.  Yes.


   1   Q.  So it would be fair to say you saw some get on that

   2   shield?

   3   A.  Yes.

   4   Q.  And you then kept going towards him with the shield and

   5   you pinned him up against the wall, right?

   6   A.  Yes, I did.

   7   Q.  And you pinned him up against the wall with such force

   8   that the shield broke?

   9   A.  The shield was only plexiglass sir.  It was not a

  10   ballistics shield that we would use in a regular riot or

  11   anything to that effect.  It was plexiglass.  That shield was

  12   used in the attorney room as basically as a quieter, a

  13   silencer.  We grabbed --

  14   Q.  I'm going to ask you again.  Whatever it was made out of,

  15   paper, tin foil, whatever it was made out of --

  16   A.  Yes.

  17   Q.  -- you pinned him up against the wall with it with

  18   sufficient force that the shield broke?

  19   A.  Yes.

  20   Q.  Okay.  And when the shield broke, it was no longer useful

  21   for subduing him, was it?

  22   A.  No, it was not.

  23   Q.  So you had to use your physical force to subdue him?

  24   A.  Yes.

  25   Q.  Did you throw any punches at Khalfan Mohamed?


   1   A.  No, I did not.

   2   Q.  Did you see anyone else throw any punches at Khalfan

   3   Mohamed?

   4   A.  No, I did not.

   5   Q.  While all this was going on, you still hadn't seen Mamdouh

   6   Salim; is that right?

   7   A.  No, sir, I did not.

   8   Q.  And you and Officer Maiden and Officer Jenkins were all

   9   involved in trying to control Khalfan Mohamed at that time?

  10   A.  Yes, sir.

  11   Q.  Did you see anyone try to come out of Cell No. 6?

  12   A.  No, I did not.

  13   Q.  Did you see anyone shoving the door to Cell No. 6 open?

  14   A.  No, I did not.

  15   Q.  Did you see anyone holding the door to Cell No. 6 closed?

  16   A.  No, I did not.

  17   Q.  Just focusing on Khalfan Mohamed, right?

  18   A.  Yes, sir.

  19   Q.  And you never, I take it, saw Salim come running out of

  20   his cell squirting liquid at anyone, did you?

  21   A.  No, I did not.

  22   Q.  Because up until the time you left that area, you had not

  23   seen Salim, correct?

  24   A.  No, I had not, no.  I did not see him.

  25   Q.  I asked that question poorly.  You had not seen Salim,


   1   right?

   2   A.  No.

   3   Q.  And you did not see him until later?

   4   A.  Correct.  Yes.

   5   Q.  You talked about a statement that you said Officer Pepe

   6   made.  Tell me what that statement was again.

   7   A.  The statement that he told me as I was taking him down

   8   was, "Lieutenant, I got them.  I gave them a fight."

   9   Q.  "I got them.  I gave them a fight."

  10   A.  Yes.

  11   Q.  And you are pretty sure as you sit here now that you

  12   remember him telling you that precise statement?

  13   A.  I would say 99 percent sure.

  14   Q.  99 percent sure?

  15   A.  I know for a fact what he said word-for-word.

  16   Q.  You are 99 percent sure the statement you just related is

  17   what you were told?

  18   A.  Yes.

  19            MR. GARCIA:  Objection.  If he could answer the

  20   question.

  21            THE COURT:  Yes.  You had two people talking at the

  22   same time.

  23            Have you answered the question?

  24            THE WITNESS:  Yes, I did, sir.

  25            THE COURT:  Very well.  All right.


   1   BY MR. STERN:

   2   Q.  We talked earlier about a report you filled out that was

   3   an official Bureau of Prisons report, the report that we

   4   talked about just a few moments ago, right?

   5   A.  Yes.

   6   Q.  And that's the report you agreed that you reviewed for

   7   accuracy?

   8   A.  Yes.

   9   Q.  Correct?

  10   A.  Uh-huh.  Yes.

  11   Q.  And you would not have left inaccurate information in that

  12   report, right?

  13   A.  No, I would not.

  14   Q.  You also spoke to an agent from the Federal Bureau of

  15   Investigation about what happened that day, did you not?

  16   A.  Yes, I did.

  17   Q.  And among the things you talked to that agent about was

  18   the statement that you say Officer Pepe made, correct?

  19   A.  Yes.

  20   Q.  And you knew this was an FBI agent, right?

  21   A.  Yes, I did.

  22   Q.  You knew the importance of being truthful with him?

  23   A.  Yes.

  24   Q.  It was an agent, by the way, by the name of Anticev,

  25   wasn't it?


   1   A.  I'm sorry, what was that, sir?

   2   Q.  Anticev, John M. Anticev?

   3   A.  I don't recall his name.

   4   Q.  You remember talking to an agent?

   5   A.  I talked to an agent, I don't know his name.

   6   Q.  And among the things you told that agent was what

   7   statement Officer Pepe had made, correct?

   8   A.  Yes, I did.

   9   Q.  Well, isn't it true that in your report you said the

  10   statement he made was, "They slipped the cuffs, but I gave

  11   them a fight"?

  12   A.  Yes.

  13   Q.  And isn't it true that when you spoke with the agent from

  14   the FBI, the statement you told him was, "They slipped the

  15   cuffs and I fought back," correct?

  16   A.  Yes.

  17   Q.  And that's a different statement than what you said in

  18   court here today, isn't it?

  19   A.  Somewhat.

  20   Q.  Now, you talked a little about the video monitors?

  21   A.  Uh-huh.

  22   Q.  On 10 South, right?

  23   A.  Yes.

  24   Q.  And those video monitors show scenes of various parts of

  25   MCC, particularly 10 South and some on 9 South, right?


   1   A.  Yes, sir.

   2   Q.  And the way they do that is they flip from area to area to

   3   area?

   4   A.  Excuse me?  Yes.

   5   Q.  Correct?

   6   A.  Yes.

   7   Q.  And if the cameras are not covered in some way, they would

   8   show what was going on, for example, in each cell at some

   9   point?

  10   A.  Yes.

  11   Q.  And in each hallway at some point?

  12   A.  Not in the hallway, sir.

  13   Q.  They don't show hallways at all.

  14   A.  Not in the hallway.

  15   Q.  How about the front area where the officers desks are?

  16   A.  There are monitors by that desk.

  17   Q.  But are there cameras that view that area?

  18   A.  No.

  19   Q.  How about the attorneys rooms?

  20   A.  No.

  21   Q.  So, it's only the cells?

  22   A.  Yes.

  23   Q.  And you know, don't you, that you have the capability of

  24   recording what's shown on those monitors?

  25   A.  Yes.


   1   Q.  And you say that there's no particular rules for when

   2   those videos, when the cassettes should be changed, right?

   3   A.  Right.

   4   Q.  It's no one's particular job to do that, correct?

   5   A.  That's correct.

   6   Q.  You also know that in some cases what those video cameras

   7   capture could be valuable evidence, right?

   8   A.  Yes, sir.

   9   Q.  For example, people are not allowed to have certain kinds

  10   of contraband in MCC?

  11   A.  Correct.

  12   Q.  And that is particularly true on 10 South, right?

  13   A.  Yes.

  14   Q.  And by watching on those cameras, you might see someone

  15   doing something or possessing something they shouldn't have,

  16   correct?

  17   A.  Yes.

  18   Q.  And if you had the actual videotape of that, you would

  19   have the proof of them doing something they shouldn't be

  20   doing, right?

  21   A.  Yes.

  22   Q.  Now, do you know as you sit here now whether or not on

  23   October 31st those monitors were working?

  24   A.  The monitors were working.  To my knowledge, the VCR

  25   recorder was not.


   1   Q.  So on October 31st no video was taken of MCC; is that

   2   right?

   3   A.  That's correct.

   4   Q.  And on October 31 no video was made of 10 South; is that

   5   right?

   6   A.  To the best of my knowledge, no.

   7   Q.  And the same is true of November 1; is that right?

   8   A.  Yes, sir.

   9   Q.  November 2?

  10   A.  Yes.

  11   Q.  October 30?

  12   A.  Yes.

  13   Q.  Do you know the last time anyone went to the trouble of

  14   putting a videotape into that machine?

  15   A.  No, sir.  I know that when I took over the Special Housing

  16   Unit I was advised that it wasn't working.  I did submit and

  17   tell the mechanical services it was not working.

  18   Q.  Who did you advise it wasn't work?

  19   A.  I was advised when I took over the Special Housing Unit?

  20   Q.  When was that?

  21   A.  That was in July, but about July.

  22   Q.  July of what year?

  23   A.  Of 2000.

  24   Q.  So in five months no one came up to fix it, that's what

  25   you're telling us, right?


   1   A.  That's correct, sir.

   2   Q.  So would it be fair to say, then, that in five months no

   3   videotape was made of what was going on in 10 South, correct?

   4   A.  To the best of my knowledge.

   5   Q.  You have pretty good knowledge.  You are in charge up

   6   there, aren't you?

   7   A.  Yes, I am.

   8   Q.  So you would know if it was working or not working?

   9            MR. GARCIA:  Objection.

  10            THE COURT:  Overruled.

  11   A.  Again, sir, as far as me, I did not put any tapes in

  12   there, did not see any tapes to my recollection.  There was no

  13   procedures.  I did have mechanical service come up and look at

  14   it and it was never -- no recordings were ever taken or ever

  15   made as far as I know.

  16   Q.  That you know of?

  17   A.  That I know of.

  18   Q.  You're a pretty thorough person, aren't you?

  19   A.  I try to be.

  20   Q.  You go around and look up at the ceiling to see how things

  21   are?

  22   A.  Yes.

  23   Q.  Down at the floor?

  24   A.  Yes.

  25   Q.  Check each door?


   1   A.  Yes.

   2   Q.  Check each room?

   3   A.  Yes.

   4   Q.  But you never went to the trouble to make sure that that

   5   video camera was taping, right?

   6   A.  Sir, like I said, it was not recording.  I again went

   7   through the proper procedures of getting it fixed.  As far as

   8   why it was not fixed, I cannot tell you.  I don't know.

   9   Q.  So it's not your fault, it's someone else's fault?

  10            MR. GARCIA:  Objection.

  11            THE COURT:  Sustained.

  12   Q.  Now, tell me again when it was you first saw Mr. Salim?

  13   A.  After we put Inmate Mohamed over by the lieutenant's

  14   office, I went back, I saw Officer Pepe, I saw other staff on

  15   the ground with Inmate Salim.

  16   Q.  And that was still back by Cell No. 6?

  17   A.  Yes, it was.

  18   Q.  Do you know the officers who were with Mr. Salim by Cell

  19   No. 6?

  20   A.  No, I do not.

  21   Q.  Pardon me?

  22   A.  No, I do not.

  23   Q.  No, you have no idea?

  24   A.  No, I do not.

  25   Q.  Did you see which officers walked Mr. Salim by Cell No. 6


   1   up to the front of 10 South by where the officers desk was?

   2   A.  No, I do not.  By that time I grabbed Officer Pepe with

   3   Lieutenant Flores and I was out of there.

   4   Q.  So you don't know who did that?

   5   A.  No, sir.

   6            MR. STERN:  I have no other questions.  Thanks.

   7            One second, Judge.

   8            (Pause)

   9   BY MR. STERN:

  10   Q.  I'm sorry.  Let me ask you one more thing.  We talked

  11   about a number of people who were there, Officer Jenkins and

  12   Officer Maiden, yourself.  Do you remember whether or not an

  13   Officer Rementer was there as well?

  14   A.  An officer who?

  15   Q.  Rementer?

  16   A.  You mean Rementer?

  17   Q.  I probably do mean Rementer, yes.

  18   A.  Not at that point.  I could not tell you.  I know later on

  19   he was.  When I went back up after Officer Pepe was out of the

  20   institution, I went back up there, he was there in.

  21   Q.  When you say not at that point you can't tell me, do you

  22   mean he wasn't there or you don't know?

  23   A.  I don't remember.

  24            MR. STERN:  Okay.  Thank you.

  25            MR. GARCIA:  Nothing, Judge.


   1            THE COURT:  Thank you.  You may step down.

   2            (Witness excused)

   3            THE COURT:  We'll take a recess.

   4            I will see counsel and the reporter in the robing

   5   room.

   6            (Recess)

   7            (Pages 7785 through 7795 filed under seal)

   8            (Continued on next page)



















   1            (In open court)

   2            THE COURT:  Good afternoon again.

   3            The government may call its next witness.

   4            MR. GARCIA:  The government calls Gautam Patel.


   6        called as a witness by the government,

   7        having been duly sworn, testified as follows:


   9   BY MR. GARCIA:

  10   Q.  Good afternoon, Mr. Patel.  Where do you work?

  11   A.  I work at Metropolitan Correctional Center.

  12   Q.  And what is your job at the MCC?

  13   A.  I'm a physician assistant over there.

  14   Q.  And generally as a physician's assistant at the MCC, what

  15   are your duties, just generally?

  16   A.  I am in charge of taking care of inmate care, health care,

  17   and I make rounds on all the units.

  18   Q.  And do you in fact have a medical degree?

  19   A.  Yes, sir.

  20   Q.  From what country?

  21   A.  India.

  22   Q.  And where is your clinic area located, your medical

  23   facility in the MCC?

  24   A.  It's present on the second floor.

  25   Q.  And back in November of 2000, where was it located?


   1   A.  It was located on the second floor.

   2   Q.  And did there come a time -- I'm sorry.  Were you working

   3   on November 1, 2000?

   4   A.  Yes, sir.

   5   Q.  And did there come a time you heard about an alarm on the

   6   10 South Unit?

   7   A.  Yes.  There was a disturbance on 10 South and it was

   8   called on the walkie-talkie that all available staff respond

   9   to that unit.

  10   Q.  And did you in fact respond to the 10 South Unit?

  11   A.  Yes, sir.

  12   Q.  And do you remember approximately when that was, morning

  13   hours or --

  14   A.  Yes, it was around 10, 10:30 in the morning.

  15   Q.  And after arriving on the 10 South Unit, did you enter

  16   that floor?

  17   A.  After a little time, yes, I did enter the unit.

  18   Q.  Are you familiar with an officer named Jenkins?

  19   A.  Yes, sir.

  20   Q.  Did you enter at the same time as Jenkins arrived?

  21   A.  After.

  22   Q.  Are you familiar with a corrections officer named Louis

  23   Pepe?

  24   A.  Yes, sir.

  25   Q.  And were you familiar with him prior to that date?  Did


   1   you know him before then?

   2   A.  Oh, yes.  I know him for more than about nine years or ten

   3   years.

   4   Q.  And when you entered the 10 South Unit on November 1st,

   5   did there come a time you saw Officer Pepe?

   6   A.  Yes, he was standing in, near the door of 10 South.

   7   Q.  And that's where you first saw him, by the door at 10

   8   South?

   9   A.  Yes.

  10   Q.  Could you just generally describe his physical condition

  11   when you first saw him?

  12   A.  He had a foreign object in his left eye and he was

  13   bleeding all over from his nose, and he looked very disturbed,

  14   like he was standing with a lot of blood on his face.

  15   Q.  And did you at that time proceed any further into the back

  16   of the 10 South Unit?

  17   A.  No, sir.

  18   Q.  And what did you do after you saw Officer Pepe in this

  19   condition that you have just described for us, what did you do

  20   next?

  21   A.  I was asked by my supervisor, Mr. Kevin McDonald, to take

  22   Officer Pepe downstairs and give him whatever care is

  23   necessary at that time.

  24   Q.  And by downstairs, you mean the second floor of the

  25   facility?


   1   A.  Yes, second floor where the hospital was, where other

   2   equipment is available like oxygen and IV fluids.

   3   Q.  And did you in fact then go to the second floor clinic?

   4   A.  Not with Officer Pepe.  Officer Pepe left before I could

   5   follow with him, because by the time I turned around, he was

   6   gone from the unit.

   7   Q.  Did there come a time later that morning that you saw

   8   Officer Pepe in the clinic area?

   9   A.  Yes, downstairs on the second floor in the urgent care

  10   room where we treat most of the immediately requiring

  11   attention-requiring people or inmates or staff members.

  12   Q.  And do you recall approximately how long after Officer

  13   Pepe left 10 South you left 10 South to go down to the clinic

  14   area?

  15   A.  Maybe about five or ten minutes.

  16   Q.  And could you describe for us what you saw Officer Pepe in

  17   the clinic area?  What was going on?

  18   A.  Officer Pepe was brought over to the emergency gurney,

  19   which we call -- it's a bed like stuff with wheels which we

  20   can take him out in case he is required to do it, and he was

  21   laid down.  My supervisor Dr. Glover was about to start an IV

  22   fluid line on him and some other staff members was trying to

  23   clean him up so that we could see where his injuries were.

  24            I was present behind Dr. Glover and Officer Pepe was

  25   on the gurney trying to be a little more impatient and trying


   1   to be more getting restless.

   2   Q.  Did Officer Pepe make any statements at that time?

   3   A.  Yes.  He told me, since I know him for nine or ten years,

   4   he told me, I gave them a good fight.

   5   Q.  And you remember him saying that that day?

   6   A.  Yes, sir.

   7   Q.  And did there come a time you got the IV into Officer Pepe

   8   there?

   9   A.  Initially we got one IV into him and it happened so that

  10   Officer Pepe got restless he started saying that, let's go,

  11   let's go.  We did tell him that we were trying to get an

  12   ambulance as soon as possible to take him out of the building

  13   so he can get proper treatment right away, and the IV came out

  14   so we started to do another IV on his other arm, which we were

  15   successful and we started having IV fluids flowing to him.

  16   Q.  And did there come a time Officer Pepe was taken out of

  17   the clinic area?

  18   A.  Yes, sir.

  19   Q.  And where was he brought?  Where was he brought when you

  20   took him from the clinic?

  21   A.  He was taken out from the clinic area to the sallyport and

  22   from there the EMS took him over to the hospital.

  23   Q.  Are you familiar with the Bureau of Prison employee named

  24   Elise Santulli?

  25   A.  Yes, sir, I am familiar with him.


   1   Q.  Elise Santulli, is it a man or a woman?

   2   A.  It's a woman.  I'm sorry.

   3   Q.  And was she in the ambulance area when Officer Pepe was

   4   taken onto the ambulance, if you recall?

   5   A.  I was not near the ambulance area.  I was always on the

   6   second floor.

   7   Q.  So you saw him leave the second floor and you did not go

   8   down to the ambulance?

   9   A.  No, sir.

  10            MR. GARCIA:  I have nothing further.

  11            MR. STERN:  Judge, may I have one second to talk

  12   Mr. Garcia?

  13            (Pause)


  15   BY MR. STERN:

  16   Q.  Mr. Patel, I'm sorry, how long did you say you have worked

  17   at MCC.

  18   A.  About 13 years.

  19   Q.  And during that time have you become familiar with the

  20   various records filled out in the health service of MCC?

  21   A.  Yes, sir.

  22   Q.  Are you familiar with the kinds of records the hospital at

  23   MCC fills out or the medical care facility at MCC fills out?

  24   A.  Yes, sir.

  25   Q.  I want to show you a document that's been premarked K.K.M.


   1   8 and see if you recognize this document -- not whether you

   2   did it or not, but whether you recognize what it is.

   3   A.  It's what we call as a 600 form.  It's like progress notes

   4   which we maintain for all inmates and staff members if they

   5   have to be.

   6   Q.  And so it's fair to say you have seen that kind of

   7   document before?

   8   A.  Yes.

   9   Q.  And that document is filled out in the regular course of

  10   the business done by the MCC health services; is that right?

  11   A.  Whenever it is necessary to fill it out for clinical

  12   visits or sometimes when we have to write some notes on

  13   inmates.

  14   Q.  Then it is filled out?

  15   A.  Yes.

  16            MR. STERN:  I will offer it into evidence.

  17            MR. GARCIA:  Your Honor, may we see the document for

  18   a second?  I'm sorry.

  19            May I have a brief voir dire, Judge?

  20            THE COURT:  Voir dire, yes.

  21            Voir dire, you remember, is not cross-examination,

  22   it's just the opportunity given to ask questions relevant to

  23   the admissibility of a proffered exhibit.

  24            MR. GARCIA:  Thank you, Judge.

  25   VOIR DIRE


   1   BY MR. GARCIA:

   2   Q.  Mr. Patel, I hand you again K.K.M. 8.  Take a look at

   3   that.  Did you have anything to do with filling out this

   4   particular document?

   5   A.  No, that's not my handwriting or that's not filled out by

   6   me.

   7   Q.  Did you have anything to do with examining the Inmate

   8   Salim on the morning of November 1, 2000?

   9   A.  No, sir.

  10            MR. GARCIA:  No objection.

  11            THE COURT:  You say no objection?

  12            MR. GARCIA:  Yes, Judge.

  13            THE COURT:  Received.


  15   BY MR. STERN:

  16   Q.  Mr. Patel, why don't you tell me who the patient that

  17   document refers to is?

  18   A.  Salim Mohamed.

  19   Q.  Salim Mohamed or Mamdouh Salim?

  20   A.  It says Salim Mohamed.

  21   Q.  Okay.  And do you see the number 1730 on that document?

  22   A.  Yes, sir.

  23   Q.  Read me the paragraph or the lines that begin there down

  24   about three lines.

  25   A.  "Inmate uncooperative to command.  Cuffs on all


   1   extremities.  Neck brace in place."

   2   Q.  When it says he's uncooperative and has cuffs on all

   3   extremities, that means cuffs on his arms and legs holding him

   4   down to the gurney; is that right?

   5   A.  I don't know whether it was a gurney or a bed or anything.

   6   It can be cuffs anywhere.

   7   Q.  Whatever it was, he had cuffs on his arms and legs holding

   8   him down, is that right?  Is that what that document says?

   9   A.  I'm not sure about that, sir.

  10   Q.  Well, you know --

  11   A.  You can stand and have cuffs on your arms and legs, too.

  12   Q.  Do you think that's what that one means?

  13            MR. GARCIA:  Objection.

  14   A.  I don't know.

  15            THE COURT:  Sustained.

  16   BY MR. STERN:

  17   Q.  You filled out in connection with this case a document

  18   called assessment and follow-up, did you not?

  19   A.  On Salim Mohamed?

  20   Q.  No.  No.  No.  I'm sorry.  I'm moving away from that.

  21            THE COURT:  We're finished with this document?

  22   BY MR. STERN:

  23   Q.  Nothing to do with that document.  You can turn it over.

  24   I am not going to ask you about that again.

  25            In connection with the stabbing of Officer Pepe, you


   1   filled out a document called assessment and follow-up

   2   referring to Officer Pepe, didn't you?

   3   A.  Yes, sir.

   4   Q.  And that's a document you fill out as part of your work?

   5   A.  Any kind of injuries occurring in the institution premises

   6   is written down or documented for the purposes of retrieval at

   7   a later date, or something to do with in the future, we need

   8   it to know exactly what part of the body you got hurt, how

   9   much did you get hurt and it's filled out both for staff and

  10   inmates.

  11   Q.  This is one such document, is it not?

  12   A.  Yes, sir.

  13   Q.  When you filled out that document, you put in whatever

  14   information was called for, correct?

  15   A.  Generally it is objective, but if the person is not

  16   present and you don't have the person available at the time,

  17   we just note down some statements saying that what happened or

  18   how it happened or it may have happened, you know.  Since most

  19   of the injuries occurring are not, you are not present, so you

  20   write down as alleges, cases.

  21   Q.  So what you are saying is what the patient tells you is

  22   what you write?

  23   A.  Yes, sir.

  24   Q.  And in this case, you wrote a statement made to you by

  25   Officer Pepe, didn't you?


   1   A.  No, sir.

   2   Q.  You did not?

   3   A.  I wrote down he alleges that he was stabbed, but Officer

   4   Pepe, I never saw him again and this was done after he left

   5   the building.

   6   Q.  Didn't you write in this document under a section that

   7   says "Injured's statement of how injury occurred:  Inmate

   8   stabbed a comb in my left eye"; isn't that what you wrote on

   9   this document, yes or no?

  10   A.  Yes.

  11   Q.  You didn't mean inmate stabbed you in your left eye, did

  12   you?

  13   A.  I'm sorry, sir?

  14            MR. GARCIA:  Objection.

  15            THE COURT:  Sustained.  Sustained.

  16   Q.  This was a statement that Officer Pepe was making,

  17   correct?

  18            MR. GARCIA:  Objection.

  19   A.  No, sir.

  20            THE COURT:  Yes, sustained.

  21   Q.  And you didn't write anything in there about, "I gave them

  22   a good fight," did you?

  23   A.  This is an injury statement, so I write what injuries

  24   occur, how they occur, and what caused those injuries.  I do

  25   not think for me to write that on an injury statement because


   1   the heading of the form itself says it is an injury assessment

   2   form.

   3   Q.  So is the answer to the question you did not write "I gave

   4   them a good fight" yes or no?

   5   A.  That.

   6   Q.  You did not write that?

   7   A.  I did not write on that form.

   8   Q.  Well, is there another form you wrote that on?

   9   A.  No, sir.

  10   Q.  Did you make any note of that at the time it was said?

  11   A.  It was around the time when he was on the gurney and we

  12   were trying to start an IV on him.

  13   Q.  So when I ask if you made any note of that at the time it

  14   was said, would the answer be yes or no?

  15   A.  If you ask me did I write it down somewhere, no, sir, I

  16   did not write it down.

  17   Q.  About well over a month later, on December 13, an FBI

  18   agent came to talk to you, didn't he?

  19   A.  Yes, sir.

  20   Q.  That was an agent named Peter Cohn?

  21   A.  I don't remember his name at this time, but, yes, an agent

  22   came to talk with me, yes.

  23   Q.  And you remember taking notes -- not you, but an agent

  24   taking notes while he was speaking with you?

  25   A.  Yes, sir.


   1   Q.  And did you ever get a chance to read those notes?

   2   A.  No, sir.

   3   Q.  That day, December 13th, you said, "I gave them a good

   4   fight," right?

   5            THE COURT:  You said that Pepe said?

   6            MR. STERN:  Correct.

   7   A.  Yes.

   8   Q.  And as far as you know, that was the first time that

   9   statement was ever written down anywhere, right?

  10   A.  Yes, sir.

  11   Q.  I want you to look at the report we were talking about

  12   earlier, K.K.M. 8.  You have it up there, right?  And see if

  13   you can, from looking at that report, tell me what injuries

  14   Mamdouh Salim had?

  15   A.  This is on Salim Mohamed.

  16   Q.  Okay.  Whoever is in that report, try and tell me what

  17   injuries that person had.

  18   A.  I don't know.  This is written by somebody else and he

  19   examined somebody else.

  20   Q.  I'm only asking you what that reflects.  I'm not asking

  21   you whether it's true or not, but what injuries that report

  22   reflects.  I know you weren't there and didn't see this

  23   individual.  I'm asking you what is reported in that document.

  24   A.  Well, there is an examination of blood pressure, 150 over

  25   80; pulse rate, 75; respiration rate 20 per minute.  What we


   1   call as oxidation saturation, it's the kind of an instrument

   2   which we measure saturation in your body, which has 99

   3   percent.  Head positive middle frontal swelling.

   4   Q.  I'm sorry.  Say that again.

   5   A.  Positive for middle frontal swelling.

   6   Q.  What does that mean?

   7   A.  And that's the swelling on the frontal part of your head.

   8   Q.  Okay.

   9   A.  And laceration.

  10   Q.  Where is the laceration?

  11   A.  It didn't mention.  He just put down laceration.

  12   Q.  Is there anything on any other pages that would expand on

  13   that?

  14            Look at the other pages and see if there is any more

  15   information about the injuries that that individual suffered.

  16            Did you read that document, sir?

  17   A.  The last one?

  18   Q.  No, read through the document, look through the whole

  19   document and tell me if it reflects any other injuries

  20   suffered by the person they are talking about.

  21            (Pause)

  22   A.  Here it says "see injury report."  I don't see the injury

  23   report.  If there is an injury report, that will specifically

  24   demonstrate on a diagram the particular way whether injuries

  25   have occurred and in assessment you would find where the


   1   injuries have occurred.

   2   Q.  But in that document there is no further discussion of the

   3   injuries?

   4   A.  No, sir.

   5   Q.  Okay.  You are familiar with the layout of 10 South,

   6   aren't you?

   7   A.  Yes, sir.

   8   Q.  You've been up there before?

   9   A.  Yes, we are to make rounds every day on it, one of us.

  10   Like we have four, five physicians assistants and we make

  11   rounds on it regularly.

  12   Q.  When you enter 10 South, after you have gone through the

  13   second door, to your left is a desk where the officers sit,

  14   correct?

  15   A.  Yes, sir.

  16   Q.  And a little bit to your right is a square column,

  17   correct, a pillar?

  18   A.  Yes.

  19   Q.  How far into 10 South did you go?  Did you go past that

  20   pillar?

  21   A.  No.

  22   Q.  You stayed in that very front area?

  23   A.  Yes.

  24   Q.  And while you were there, did you see anyone other than

  25   Officer Pepe who was injured?


   1   A.  Yes, there was an inmate lying face down on the near, just

   2   near the table.

   3   Q.  When you say near the table, you mean the desk where the

   4   officers sit?

   5   A.  Yes.

   6   Q.  And did you check the condition of that inmate?

   7   A.  No, sir.

   8   Q.  Did you try to do anything to help that inmate?

   9   A.  No, sir.

  10   Q.  Did you see anyone touch that inmate in any way?

  11   A.  There was a lot of people.  I do not know.

  12   Q.  Do you recall seeing anyone touch him?

  13   A.  No, sir.

  14   Q.  Do you recall if he was handcuffed or not?

  15   A.  No, sir.  I don't know about that.

  16   Q.  Do you recall seeing him move at all?

  17   A.  No, sir.  My attention was focused on Pepe because he was

  18   standing right in front of me.

  19            MR. STERN:  Okay.  I have no other questions.

  20            MR. GARCIA:  May I briefly look at this document,

  21   Judge?  I didn't see a copy.

  22            THE COURT:  Yes.

  23            MR. GARCIA:  Nothing further, Judge.  Thank you.

  24            THE COURT:  Thank you.  You may step down.  The

  25   government may call its next witness.


   1            MR. GARCIA:  The government calls Elise Santulli.

   2            (Witness excused)


   4        called as a witness by the government,

   5        having been duly sworn, testified as follows:


   7   BY MR. GARCIA:

   8   Q.  Ms. Santulli, I ask you to speak up a little bit and maybe

   9   move the chair a little closer to the mike.

  10            Ms. Santulli, where do you work?

  11   A.  Federal Bureau of Prisons in Brooklyn.

  12   Q.  If you could keep your voice up again and maybe a little

  13   bit closer even to the microphone, it might help a little

  14   more.

  15   A.  Okay.

  16   Q.  Thank you.

  17            You work for the Federal Bureau of Prisons in

  18   Brooklyn?

  19   A.  Yes, sir.

  20   Q.  And back in November 2000, where were you working?

  21   A.  MCC, New York.

  22   Q.  What was your position at the MCC back in November 2000?

  23   A.  Inmate systems officer.

  24   Q.  And how long had you been at MCC?

  25   A.  Approximately four years.


   1   Q.  During that time did you become familiar with an officer

   2   named Louis Pepe?

   3   A.  Yes.

   4   Q.  Were you working on November 1, 2000?

   5   A.  Yes, I was.

   6   Q.  Did there come a time on that day, November 1, that you

   7   saw Officer Pepe?

   8   A.  Yes, I did.

   9   Q.  Could you tell us about that, when you first saw him?

  10   A.  I was on my way back from the post office to deliver

  11   inmate mail and we were told we couldn't come in because there

  12   was an emergency going on.  I was not aware that it was a

  13   staff member involved.  We thought it was an inmate, but

  14   obviously it turned out to be a staff member, which was

  15   Officer Pepe.

  16   Q.  And what did you do?

  17   A.  As soon as we found out that it was Officer Pepe, we tried

  18   to get the ambulance ready to expedite the prosecution of

  19   getting him out of the jail to the hospital.  We got the keys,

  20   we took the keys out of the control center, had the key ready,

  21   the ambulance running for the paramedics to just go in and

  22   bring him in and take him out right away.

  23   Q.  Did that happen?

  24   A.  Yes.  It was me and two other officers down in the

  25   sallyport, we saw Lieutenant Florez and Lieutenant Rojas


   1   coming out with Officer Pepe, and that's when we noticed what

   2   really had happened.  So we tried to get him in as quickly.  I

   3   honestly don't remember how I ended up in the ambulance with

   4   him, I just ended up in the ambulance with him.  We took off.

   5   It was myself, Officer Pepe, and the paramedic and we were on

   6   our way to the hospital.

   7   Q.  And what hospital were you going to?

   8   A.  The one on 34th Street.  I forgot the name.

   9   Q.  And in fact, you rode in the section of the ambulance with

  10   Officer Pepe during that ride?

  11   A.  Yes, sir.

  12   Q.  And was Officer Pepe conscious during the ride from the

  13   prison to the hospital on 34rd street?

  14   A.  He was.

  15   Q.  Did he make any statements that you heard?

  16   A.  At first we were asking him if he was okay.  He responded

  17   yes.  He kept asking us to tell him the streets, where was he

  18   going.  He wanted us to know exactly, to describe the signs.

  19   We started asking him, the paramedic started asking him his

  20   date of birth, which he gave to the paramedic.

  21            As the paramedic reached over to grab the IV, he kept

  22   asking him if he was okay.  He replied, yes, I'm okay.  He

  23   kept asking me how was his eye, how did it look.  I was like,

  24   you're fine, don't worry about it, you're going to be okay.

  25   The paramedic kept stating that, you know he's a hero, that he


   1   would be fine.

   2            As the paramedic turned away, he basically said, I

   3   got them, and that was the end of it.  I tried, you know,

   4   calming him down.  He kept trying to reach for his eye, but I

   5   kept holding his hands down just to, you know, keep him still

   6   until we arrived to the hospital.

   7   Q.  He said "I got them"?

   8   A.  That's all he said.

   9   Q.  And did you accompany Officer Pepe into the hospital at

  10   34th Street?

  11   A.  Yes, I was with him.  I was constantly with him, actually

  12   for nearly 15 hours with him from the emergency room through

  13   the CAT scans through the x-rays, through surgery, through

  14   until I was relieved of my duties.

  15   Q.  And did there come a time during that period that you were

  16   given certain items to turn over to the FBI?

  17   A.  Yes.  During his surgery, I had asked the doctors once

  18   they removed the item out of his eye to please not to wash the

  19   items off, just to put them in a bag, that they had to be

  20   delivered over -- turned over to the FBI for evidence, which

  21   they did.

  22   Q.  What types of items did you get to turn over to the FBI?

  23   A.  The first items were his clothes, his clothing, which I

  24   had to sign in the logbook.  The second item was a small piece

  25   of fragment, sort of like a pebble, black.  I don't know what


   1   it was.  And the third item was the homemade shank.

   2   Q.  I'm going to approach and show you an exhibit, Government

   3   Exhibit 4057, and ask you, without taking it out, does that

   4   appear to be one of the items of clothing that you turned over

   5   to the FBI?

   6   A.  Yes, it is.

   7   Q.  And do you recall who the FBI agent was you turned it over

   8   to?

   9   A.  I don't remember his name, but I do know if he see him,

  10   I'll know who he is.

  11   Q.  Could you just describe his features, color hair, height?

  12   A.  He's about five-ten, five-11, light-skinned, red hair.

  13   Q.  You stated that you knew Officer Pepe for a number of

  14   years at the MCC; is that correct?

  15   A.  Yes, I did.

  16   Q.  And were you on friendly terms with him?

  17   A.  Yes, I was.

  18   Q.  And after this date, November 1st, did you return to the

  19   hospital to visit him?

  20   A.  Every day.

  21   Q.  When was the last time you visited him?

  22   A.  Three weeks ago, three, four weeks ago.  If I went on

  23   vacation, I saw him.

  24   Q.  Did he appear to know who you were at that time?

  25   A.  Excuse me?


   1   Q.  Did he recognize you?  Did he know who you were?

   2   A.  No, he did not.

   3            MR. GARCIA:  Nothing further.


   5   BY MR. STERN:

   6   Q.  Ms. Santulli, you talked about turning over items to the

   7   FBI, correct?

   8   A.  Yes, I did.

   9   Q.  And you went through a careful process when you were

  10   turning those items over, didn't you?

  11   A.  Yes, I did.

  12   Q.  You made sure that there was a chain of custody from the

  13   time you received them until they went to the FBI, right?

  14   A.  Yes, I did.

  15   Q.  You made sure you signed them in and out, correct?

  16   A.  I signed the hospital books.

  17   Q.  You did everything you could, as well as you possibly

  18   could in that connection, right?

  19   A.  Yes, I did.

  20   Q.  And you know that when you deal with the FBI it's

  21   important to proceed that way, isn't it?

  22   A.  Yes, it is.

  23   Q.  In addition to turning things over to the FBI, you spoke

  24   with an agent from the FBI on November 1st, didn't you?

  25   A.  I spoke to many agents.  I don't know which one you are


   1   referring to.

   2   Q.  Well, do you recall speaking to an agent named Jason

   3   Randazzo?

   4   A.  I don't remember his name.

   5   Q.  Do you recall an agent asking you about whether or not you

   6   had spoken to Officer Pepe?

   7   A.  I don't understand.  Are you asking me like the first day

   8   or a few days after?

   9   Q.  The same day, November 1st.

  10   A.  I don't remember.

  11   Q.  Well, do you recall at any time around the time of this

  12   assault speaking with agents from the FBI about what you knew

  13   about this case?

  14   A.  I remember speaking to someone.

  15   Q.  Did you realize that it was an agent of some sort?

  16   A.  Yes.

  17   Q.  While you were speaking to that person, you were making

  18   every effort to give that person all the information you

  19   could, correct?

  20   A.  Correct.  But I do not remember talking to someone on the

  21   first day asking me any questions.  I was just handing over

  22   the evidence, more or less.  I don't --

  23   Q.  You don't remember talking to any FBI agent?

  24   A.  There were a lot of FBI agents there that one day.

  25   Q.  Did any of those agents ask you questions about what had


   1   occurred?

   2   A.  Yes, they did.

   3   Q.  And when you spoke to those agents, you did your best to

   4   be truthful, correct?

   5   A.  Yes.

   6   Q.  You did your best to be accurate, correct?

   7   A.  Yes.

   8   Q.  And you did your best to be complete, wouldn't that be

   9   fair to say?

  10   A.  Yes.

  11   Q.  I mean, you knew that these agents might be investigating

  12   this case, right?

  13   A.  Yes.

  14   Q.  And you wanted them to have all the information they could

  15   so they could reach accurate conclusions, would that be fair

  16   to say?

  17   A.  Yes.

  18   Q.  And didn't one of the agents ask you specifically if

  19   Officer Pepe had made any statements related to the incident

  20   in which he was assaulted?

  21   A.  They may have.

  22   Q.  Do you remember an agent asking you that?

  23   A.  They may have had asked me.  I don't recall that one

  24   particular question.  Like I said, there was many -- there was

  25   at least three or four agents there.  I might have spoken to


   1   three or four.  I don't recall.

   2   Q.  Well, didn't you tell the agents, referring to Officer

   3   Pepe, he made no statements related to the incident in which

   4   he was assaulted on November 1st; didn't you tell that to an

   5   agent of the FBI?

   6   A.  I don't, honestly I don't remember the conversations I was

   7   having.

   8            MR. STERN:  I have no other questions.


  10   BY MR. GARCIA:

  11   Q.  Ms. Santulli, would it be fair to say when you did speak

  12   to the FBI after this incident, that you were still upset by

  13   what had happened?

  14   A.  I was.

  15   Q.  And do you recall that conversation at all with the agent?

  16   A.  There were so many.  I spoke to so many agents that one

  17   day, so many.  I was with Pepe almost 15 hours.  I was

  18   exhausted.

  19   Q.  And much of that time you were awaiting outside the rooms

  20   where they were treating Officer Pepe, is that true?

  21   A.  Yes, I was with him the whole time.

  22            MR. GARCIA:  Nothing further.

  23            THE COURT:  Thank you.  You may step down.

  24            (Witness excused)

  25            THE COURT:  The government may call its next witness.


   1            MR. GARCIA:  The government calls Robert Parish.

   2            I'm sorry, Judge.  I went out of order, Ted Otto.

   3   Excuse me.

   4    Theodore Otto,

   5        called as a witness by the government,

   6        having been duly sworn, testified as follows:


   8   BY MR. GARCIA:

   9   Q.  Mr. Otto, where do you work?

  10   A.  For the Federal Bureau of Investigation.

  11   Q.  Were you working back on November 1, 2000?

  12   A.  Yes, I was.

  13   Q.  Did there come a time that you received an assignment that

  14   day to report to Bellevue Hospital on 34th Street?

  15   A.  Yes, it did.  It was in the early afternoon.

  16   Q.  And about what time did you get to the hospital?

  17   A.  My partner and I probably arrived at the hospital between

  18   12:30 and 1:00 p.m.

  19   Q.  And what was your assignment going to the hospital?

  20   A.  I work for a squad which is charged with the

  21   responsibility of investigating crimes on government

  22   reservations, and the Metropolitan Correctional Center in

  23   lower Manhattan is jurisdictionally a government reservation.

  24   That there had been an alleged assault on a correctional

  25   officer and we were again charged with the responsibility of


   1   investigating it.

   2   Q.  And when you arrived at Bellevue Hospital, did there come

   3   a time that you were given certain items of evidence?

   4   A.  Yes.

   5   Q.  And do you recall who gave you those items?

   6   A.  A woman, whom I believe was an employee of the Bureau of

   7   Prisons by the name of Eloise or Elise Santulli.

   8   Q.  And could you just describe for us generally what those

   9   items were?

  10   A.  Primarily there was what appeared to be a hair pick which

  11   had been somehow fashioned into the shape of a knife or a

  12   shank, it was a black plastic device, a small piece of plastic

  13   which I was told had been -- was part of that black plastic

  14   knife or shank, and articles of clothing.

  15   Q.  I'm going to approach and show you what has been marked

  16   Government Exhibit 4057.

  17            Agent, prior to coming to court today did you have an

  18   opportunity to examine that particular item?

  19   A.  I did, several hours ago.

  20   Q.  And is that one of the items that you were given by

  21   Officer Santulli that day related to the attack on the

  22   officer?

  23   A.  Yes, it is.

  24            MR. GARCIA:  Your Honor, at this time the government

  25   offers 4057.


   1            MR. STERN:  No objection.

   2            THE COURT:  Received.

   3            MR. GARCIA:  I have no further questions.

   4            (Government Exhibit 4057 received in evidence)


   6   BY MR. RUHNKE:

   7   Q.  Agent, were you working with an Agent Randazzo on that

   8   day, Jason Randazzo?

   9   A.  Yes, sir, I was.

  10   Q.  And are you familiar -- is Agent Randazzo somebody that

  11   you have worked with in the past?

  12   A.  We're assigned to the same squad.  I have worked on that

  13   squad for several years.

  14   Q.  I'm going to show you a document that's been marked

  15   35175C?

  16            MR. RUHNKE:  Your Honor, may I approach?  I'm sorry.

  17            THE COURT:  Yes.

  18   Q.  Agent, would you look at this, first tell the jury what it

  19   is, the top document and the following documents.

  20   A.  It's an FD340B.

  21   Q.  What's an FD340B?

  22   A.  It appears to be an envelope, a photocopy of an envelope.

  23   Q.  Who uses that envelope?

  24   A.  It's an FBI form.

  25   Q.  And what goes in that envelope usually?


   1   A.  A variety of different things.  Primarily evidence and

   2   notes of interviews.

   3   Q.  Does that envelope reflect on the outside -- first of all,

   4   do you recognize Agent Randazzo's handwriting on the outside

   5   of the envelope?

   6   A.  It seems to being Agent Randazzo's handwriting.

   7   Q.  Inside the envelope or the next document down, do you see

   8   what appear to be handwritten notes by Agent Randazzo?

   9   A.  Yes.

  10   Q.  And do those appear to be an interview of an Elise

  11   Santulli?

  12   A.  They appear to be, yes.

  13   Q.  Would you read what Agent Randazzo wrote in those notes,

  14   please?

  15            MR. GARCIA:  Objection.

  16            THE COURT:  Yes, sustained.

  17            MR. RUHNKE:  Your Honor, it's sort of an odd

  18   situation.  The rules of evidence do not apply.

  19            THE COURT:  Let's not argue in front of the jury.

  20            Sustained.

  21            MR. RUHNKE:  If we could approach for the moment at

  22   sidebar.

  23            (Continued on next page)




   1              (At the sidebar)

   2            MR. RUHNKE:  As somebody observed a while ago, a

   3   trial has broken out in the middle of the penalty phase and we

   4   are trying this like it was not the penalty phase and we have

   5   been treating rules of evidence generally applicable, which is

   6   fine but --

   7            THE COURT:  I'm very mindful of the fact that it is

   8   not a trial and the rules of evidence don't apply, but

   9   nevertheless, you are asking him to read another agent's notes

  10   of a conversation with the last witness.

  11            MR. RUHNKE:  Sure.

  12            THE COURT:  You have already examined the last

  13   witness about it, and I suppose you could subpoena Randazzo.

  14            MR. RUHNKE:  While under the relaxed rules of

  15   evidence, I simply offer the document.  It's been

  16   authenticated by the current witness.

  17            MR. GARCIA:  The government offered a report by an

  18   agent and it was a report that was kept out because that

  19   witness was available to testify, and this agent isn't even

  20   present at this interview.

  21            THE COURT:  It is all to a point which is really so

  22   tangential whether Pepe said I had a good fight or didn't

  23   fight at a time when he was in such a condition that she was

  24   asked to stop talking to him until he stabilized.

  25            No.  If you want to call Agent Randazzo, is he


   1   available?

   2            MR. GARCIA:  Yes, Judge.

   3            MR. RUHNKE:  Fine.

   4            THE COURT:  You can call him.

   5            MR. GARCIA:  One thing, just a procedural matter.  In

   6   the end of the day, we had a little mixup with the witnesses

   7   because there were some in the MCC.  Can we break for the day

   8   after this witness?

   9            THE COURT:  Yes.  Sure.  We're almost there.

  10            (Continued on next page)

















   1            (In open court)

   2            MR. RUHNKE:  I'll have no further questions, your

   3   Honor.

   4            THE COURT:  Nothing further.

   5            Any redirect?

   6            MR. GARCIA:  Nothing.  Thank you, Judge.

   7            THE COURT:  Thank you.  You may step down.  We'll

   8   call it a day.

   9            I understand there is some change in tomorrow

  10   morning.  Somebody is going to be a little late.  Work that

  11   out with the marshal, the pick-up time and so on.  Have a good

  12   evening.   

  13            It's been a while since I have said this, and so let

  14   me please remind you to avoid reading anything about this case

  15   or anything related to this case and listening or watching

  16   anything.  I am aware that there has been extensive media

  17   coverage of this case, and if it should come about that you

  18   discover that what you are listening to or watching relates to

  19   this case, please turn it off.  If inadvertently you should

  20   hear or read anything related to this case, please disregard

  21   it so that we are sure that your decision, when you make it,

  22   will be based solely on what you hear and see in this

  23   courtroom without any external influences.

  24            Have a good evening.

  25            (Jury not present)


   1            THE COURT:  I just want to reassert, even though I

   2   recognize that we are at a hearing, not a trial, but if any

   3   document is going to be introduced, that it be called to the

   4   attention of opposing counsel.  I wasn't sure with respect to

   5   K.K.M. 8 when there was a request to see it, and the

   6   government made no objection, but I just wanted to remind the

   7   parties.

   8            MR. GARCIA:  It had been turned over before, Judge.

   9   If we could have just copies, it would be helpful.

  10            THE COURT:  So we will begin, then, before the jury

  11   at 10 a.m. tomorrow.

  12            Is there anything that has to be dealt with between

  13   now and then?

  14            MR. RUHNKE:  Your Honor, I'm still waiting for an

  15   answer from the question that was posed this morning.  The

  16   government had said they were going to get back to us about

  17   noontime or 1:00.

  18            THE COURT:  This relates to the psychiatrist?

  19            MR. RUHNKE:  No, the allegation in the indictment

  20   that it was Salim who stabbed Officer Pepe with the brush.

  21            MR. FITZGERALD:  Your Honor, we'll look at it

  22   overnight.  We were busy during lunch, during the day.

  23            THE COURT:  Yes.

  24            MR. RUHNKE:  For the record, before you conclude, the

  25   document I showed to Agent Otto has been marked K.K.M. 9 for


   1   identification.

   2            THE COURT:  K.K.M. 9 for identification.

   3            Any sense as to timetable?

   4            MR. GARCIA:  Yes, Judge.  I think there's a good

   5   likelihood we'll be close to finishing tomorrow.  As I

   6   discussed with Mr. Ruhnke earlier today, our last witness is

   7   the neurosurgeon from NYU.  He's scheduled to appear on

   8   Monday.  It is a difficult scheduling for him, and Mr. Ruhnke

   9   has agreed that if we are a little early tomorrow we can call

  10   him first thing on Monday morning, just because of scheduling.

  11            THE COURT:  Will he be your last witness?

  12            MR. GARCIA:  Yes, Judge.

  13            I'm sorry, with respect to the assault on Officer

  14   Pepe.

  15            MR. RUHNKE:  Your Honor, we're prepared to begin on

  16   Tuesday as planned.

  17            THE COURT:  Very well.  All right, we're adjourned

  18   until 10 a.m. tomorrow.

  19            (Adjourned to 10:00 a.m. on June 21, 2001)









   2                        INDEX OF EXAMINATION

   3   Witness                    D      X      RD     RX


   5   PAUL McALLISTER.........7600   7620    7643    7651

   6                                          7656

   7   RODERICK JENKINS........7657   7677    7694    7697

   8                                          7698    7699

   9   LANCE MAIDEN............7699   7711    7723

  10   GLENN A. CARRINO........7747   7764

  11   GAUTAM PATEL............7785   7790

  12   ELISE BUTRON-SANTULLI...7801   7806    7809

  13   Theodore Otto...........7810   7812

  14                        GOVERNMENT EXHIBITS

  15   Exhibit No.                                     Received

  16    3032 .......................................7599

  17    4059 .......................................7602

  18    4000 and 4065 ..............................7608

  19    4005 .......................................7666

  20    4008 .......................................7673

  21    4049 .......................................7677

  22    4011 .......................................7694

  23    4072 .......................................7707

  24    4302 .......................................7708

  25    4302A-P ....................................7709


   1    4302B-2 ....................................7709

   2    4070 .......................................7710

   3    4071 .......................................7711

   4    4074 .......................................7759

   5    4303P ......................................7760

   6    4303A-P ....................................7760

   7    4037 .......................................7762

   8    4057 .......................................7812

   9                         DEFENDANT EXHIBITS

  10   Exhibit No.                                     Received

  11    K.K.M. 4, 5 and 6 ..........................7656















HTML by Cryptome.