Trial Transcript

This post is also available in: Spanish

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

UNITED STATES OF AMERICA,             )    Docket No.

)    98‑721‑CR‑LENARD

Plaintiff,            )

)    Miami, Florida

  1. )    December 6, 2000

)

GERARDO HERNANDEZ,                    )

a/k/a MANUEL VIRAMONTEZ, ET AL.,      )

)

Defendants.           )

)

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x

VOLUME 8

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

and a Jury

APPEARANCES:

For the Government:              CAROLINE HECK MILLER, ESQ.

JOHN KASTRENAKES, ESQ.

DAVID BUCKNER, ESQ.

For the defendant Hernandez:     PAUL McKENNA, ESQ.

For the defendant Medina, III:   WILLIAM NORRIS, ESQ.

For the defendant Gonzalez:      PHILIP HOROWITZ, ESQ.

For the defendant Guerrero:      JACK BLUMENFELD, ESQ.

For the defendant Campa:         JOAQUIN MENDEZ, Esq.

Court Reporter:                  Richard A. Kaufman, C.M.R.R.

RICHARD A. KAUFMAN, CMRR

1545

I N D E X

Direct  Cross       Red.  Rec.

WITNESSES FOR THE GOVERNMENT:

JURY SELECTION

OPENING STATEMENTS

WITNESSES FOR THE DEFENDANTS:

EXHIBITS

GOVERNMENT                                 IN EVID.

DEFENDANT’S

RICHARD A. KAUFMAN, CMRR

1546

1             (Open court.)

2             THE COURT:  United States of America versus Gerardo

3    Hernandez, et al. Case Number 98‑721.

4             Would counsel state their appearances.

5             (All parties present.)

6             THE COURT:  Counsel, if you would approach for a

7    moment.

8             (Side bar.)

9             THE COURT:  Good morning.

10             First of all I wanted to thank you for giving me a

11    heads up on the interpreters yesterday.

12             I also want to reinforce and have everybody

13    acknowledge on the record the gag order that was entered by the

14    Court early on in this case and now has been extended to

15    witnesses.  Witnesses have been instructed they are not to

16    discuss this case or speak with anyone from the news media and
17    I would like each person to acknowledge that on the record.

18             MS. MILLER:  We do understand that to be the Court’s

19    order.  I have sent an E mail to all the family members.  We

20    have a hundred witnesses.  As they come in, I will let them

21    know, but we have reached out to people.

22             MR. MENDEZ:  I understand that order.

23             MR. KASTRENAKES:   Yes.

24             MR. BUCKNER:  I understand.

25             MR. HOROWITZ:  It is understood.

RICHARD A. KAUFMAN, CMRR

1547

1             MR. BLUMENFELD:  Yes, Your Honor.

2             MR. McKENNA:  I understand.

3             MR. NORRIS:  I acknowledge it.

4             MR. McKENNA:  Your Honor, with respect to the

5    sequestration order which I move to invoke at the beginning of

6    the case, I have a witness that is in Court and I am not

7    positive whether we should be doing this at side bar but I am

8    doing it because I am up here.  His name is Hank Tester.  I

9    have been contacted by his attorney of NBC New York, the fact

10    we are going to call him as a witness and they said they will

11    object to it.

12             He is here, he is in the audience covering this for

13    NBC news.  I don’t know how I should proceed, should I tell him

14    not to be here?

15             MS. MILLER:  Is he going to be testifying about events

16    of July of 1995?

17             MR. McKENNA:  July 13, 1995.

18             MR. KASTRENAKES:  He is a fact witness as opposed to

19    authenticating a tape?

20             MR. McKENNA:  He is a fact witness.  He was in

21    Mr. Basulto’s aircraft.

22             MS. MILLER:  Are you going to lay it out in your

23    opening?

24             MR. McKENNA:  I will state in the opening that it is

25    and it is not clear whether I will play the tape, call him or

RICHARD A. KAUFMAN, CMRR

1548

1    his cameraman but I will mention he was in the aircraft with

2    Basulto, that is, Mr. Tester.

3             MS. MILLER:  If your opening will not expose him

4    drastically to your rendition of what his testimony will be,

5    maybe if you can keep your opening very general and not go into

6    anything testimonial about his account we won’t have an

7    objection.

8             It is a difficult issue, I would like to avoid barring

9    a member of the press from being present, but I would like to

10    get some comfort level from Mr. McKenna he can work around it.

11             MR. McKENNA:  It is a very brief reference.  It is not

12    Hank Tester will say this, he will say that.  I just wanted to

13    bring it up to the Court because if I call him I don’t want him

14    excluded because he watched the opening statements.

15             MS. MILLER:  Can you do it without mentioning him by

16    name, saying members of the news media?  I don’t want him to be

17    covering the opening and fellow press members out there will be

18    questioning him out there, is that what you are going to say.

19             MR. McKENNA:  I think I can do that.

20             THE COURT:  If they have indicated to you there is

21    going to be an issue there, if you do intend to call him ‑‑ is

22    he under subpoena?

23             MR. McKENNA:  He is not.  Counsel in New York said she

24    would accept a subpoena.  We have an agreement that is not an

25    issue.

RICHARD A. KAUFMAN, CMRR

1549

1             THE COURT:  I wasn’t worried about that but maybe you

2    should put it into play because if you intend to call him, they

3    could make whatever motions they wish to make.

4             MR. McKENNA:  We did issue a subpoena for the video

5    and that hasn’t been delivered yet and we are still negotiating

6    over the video.  There has to be a separate subpoena for him.

7             It is in play to a certain degree.

8             MR. KASTRENAKES:  This will have to be litigated

9    before we get to the defense case because we will be calling

10    witnesses which will touch on that event, perhaps.

11             THE COURT:  That is what I am saying.  If you intend

12    to call him, place him under subpoena and his counsel can bring

13    whatever arguments they wish to before the Court and it will

14    have to be litigated.

15             MS. MILLER:  Mr. Kastrenakes’ point is correct.  This

16    may be an ongoing situation that will have to be revisited.

17    There may be moments during the trial where their testimony

18    will directly intertwine with the testimony of Mr. Tester.

19             THE COURT:  Maybe you can communicate with counsel as

20    it comes up until such time as the issue is properly brought

21    before the Court.

22             Is that all right?

23             MR. McKENNA:  Yes.

24             THE COURT:  Thank you.

25             (Open court.)

RICHARD A. KAUFMAN, CMRR

1550

1             THE COURT:  We have scheduled before we begin this

2    morning, I will bring in separately Mr. Millado and Mr. Yagle

3    to speak to them about their potential conflicts as members of

4    the jury.

5             Let’s bring Mr. Millado in first.

6    BY THE COURT:

7    Q.  Would you state your name?

8    A.  Juanito Millado, Your Honor.

9    Q.  As I understand it, sir, when you were called yesterday by

10    Ms. Shelnut you had expressed some concern about serving on the

11    jury.  What is your concern?

12    A.  As I was trying to explain myself, Your Honor, I could be

13    physically present here right now but mentally I am with my

14    mother.  My spirit is with my sick mother.  I hate to use the

15    word “dying,” Your Honor, because I don’t want my mother to

16    die.

17             If I may, Your Honor, I have all the plane tickets

18    here.

19    Q.  We talked about the plane tickets and I certainly believe

20    you.  You informed the Court you intended to go on December

21    20th and when we spoke last your wife was scheduling your

22    return on the 2nd?

23    A.  My problem is, Your Honor, what if anything happens between

24    now and the 28th or after the 2nd.

25    Q.  Obviously, sir, if something were to happen concerning your

RICHARD A. KAUFMAN, CMRR

1551

1    mother either between now and the 20th or even when you were in

2    the Phillipines between the 20th and the 2nd and it would

3    affect your jury service, that would be something that would be

4    presented to me even if you were to appear by phone or if there

5    was some problem, and I would make a determination based upon

6    what your situation was.

7             If you are on the jury and something happens, if your

8    mother becomes seriously ill between now and December 28 and

9    and December 20 and you come to me I must leave now, that is

10    something I would consider and I will make a determination

11    whether you can go.

12             I can’t imagine if something truly happened concerning

13    your mother’s health, it became of such a serious nature ‑‑

14    right now you are scheduled to go on the 20th?

15    A.  Yes, Your Honor.

16    Q.  When are you going?

17    A.  The 20th.

18    Q.  Are you working now between now and the 20th?

19    A.  I am still working.  I missed a whole week of work last

20    week.  To tell you the truth, Your Honor, every time my phone

21    rings I don’t know what to do.  I don’t know if I will answer

22    it because it could be an emergency.

23    Q.  Let me ask you a question, what is your mother’s health

24    condition now?

25    A.  She suffered a stroke and every now and then she is

RICHARD A. KAUFMAN, CMRR

1552

1    suffering mild strokes.

2    Q.  Is she home or in the hospital?

3    A.  She is bedridden right now.

4    Q.  At home or the hospital?

5    A.  We cannot afford a hospital.

6    Q.  She is at home.  She is bedridden at home?

7    A.  The last time I know, that is what I heard.

8    Q.  Right now you are not scheduled to go until the 20th?

9    A.  I am not, Your Honor, but there is not a moment in time I

10    am not thinking of my mother and how could I give you 100

11    percent of my capacity as a juror.  It could be bad for any of

12    these people out here that I could give a wrong judgment ‑‑

13    Q.  Have you been able to concentrate at work?

14    A.  That is a good question, Your Honor, because I was coming

15    here this morning ‑‑ I am a bus mechanic.  I work for Dade

16    County.  This is the certain thing I see.  I saw bus 803 that I

17    know I fixed the other night but I don’t know what I do with

18    it.  I cannot recall.  That is how devastated I am right now.

19    I fixed the bus but I don’t know what I did with it.  That is

20    how I am devastated right now.

21             As a first born, I am supposed to do scheduling right

22    now, the preparation, whatever, and I don’t want to do it.  I

23    cannot do it, Your Honor.

24    Q.  Do you have other family in the Phillipines helping to take

25    care of your mother?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1553

 

1    A.  A brother and a sister, Your Honor.

2    Q.  Why don’t you step back into the juryroom for a few moments

3    and if you would not discuss this with anyone.

4             I will hear from counsel.

5             MR. McKENNA:  In light of those answers, we would move

6    for a hardship cause on this juror.  I don’t think he will be

7    able to concentrate and give the attention he needs in this

8    case.  He seems to be extremely emotional about his situation.

9             MS. MILLER:  Your Honor, the government agrees this

10    juror should be dismissed.  Whether his level of distraction is

11    realistic or not is not of any moment.  He has expressed a

12    compelling concern about his ability to concentrate on the

13    events of this trial and we share with the defense a feeling he

14    could not serve.

15             THE COURT:  I agree.  It seems perhaps the situation

16    in the Philippines with his mother, he conveys it as being

17    serious and emotionally hard for him to deal with.

18             On that stipulation of the parties, I will excuse

19    Mr. Millado.

20             Would you bring in Mr. Yagle who would be taking

21    Mr. Millado’s place so we could find out what his health

22    situation is

23    BY THE COURT:

24    Q.  Good morning.  Would you state your name for the record

25    once more?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1554

 

1    A.  Eugene Yagle.

2    Q.  Mr. Yagle, when you were called yesterday there was some

3    indication of some medical events that have occurred this week,

4    can you tell me about that?

5    A.  When the call was made, I was at the doctor’s office and

6    much to my chagrin, it was recommended ‑‑ I went to my family

7    physician.  I have been having chest pains.  I walk two miles

8    every day and I started to have some chest pain.  It occurred

9    Friday night and Monday morning, so I called him just to go in

10    and tell him about it.

11             In March of 1999, I had a heart catheritization and

12    two angioplasties where they took and put a stent in two of the

13    arteries.  So I am familiar with the type of pain or the

14    signal, so to speak.  The doctor gave me an EKG and looking at

15    the reports that the cardiologist had sent him from last year,

16    he said there was an artery that was 60 percent blocked but for

17    a 60 percent block they apparently don’t consider it dangerous

18    and they leave it alone.

19             He called the cardiologist who had done the

20    angioplasty.  They discussed the situation and felt I should

21    have a heart catheritization to determine if possibly the

22    closure of that artery has increased from March of 1999.

23    Q.  March of 1999 is when it was 60 percent?

24    A.  Yes, ma’am.  Consequently they set up for a heart

25    catheritization tomorrow at Miami Heart.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1555

 

1    Q.  What time is that scheduled for?

2    A.  I am supposed to be there at 6:30 in the morning, and I

3    asked if everything goes real well could I be out late that

4    night and they said plan on staying over until Friday.

5             Quite frankly I would like to serve on the jury and I

6    know I could be here Monday if there were no complications

7    because I have been through this and I would have the weekend

8    to recover.

9    Q.  Thank you, sir, if you would step into the juryroom?

10             THE COURT:  Yes

11             (Interruption.)

12             THE COURT:  Yes.

13             MR. McKENNA:  Our position is as follows.  I know you

14    are anxious to get the case off the ground.  I think what we

15    should do is continue today, put Mr. Yagle on the jury and come

16    back Monday.  He seems to indicate he will be fine by then.  He

17    has been through this procedure before.  I know we would be

18    missing a few days, but I think that is the best alternative at

19    this point.

20             MS. MILLER:  Your Honor, we have no objection.

21    Mr. Yagle says he is capable of serving.  He has planned to be

22    able to serve.  We would like to see the jury disrupted as

23    little as possible in terms of its makeup.

24             One thing we didn’t explore with him whether he could

25    reschedule the heart catheritization until Friday.  I am a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1556

 

1    little hesitant to ask for it when somebody’s doctor says you

2    should have a heart catheritization.

3             In any event, we would like to see the jury panel stay

4    as intact as possible.

5             THE COURT:  If that is the parties position, and I am

6    not ruling, why couldn’t we go forward with opening statements

7    today?

8             MR. McKENNA:  I am perfectly willing to do that.  I

9    don’t think we should ask him to reschedule his procedure.  He

10    sounds concerned about it.  That is what his doctor wants him

11    to do.  Who are we to tell him he should go to our schedule on

12    his medical condition.

13             THE COURT:  What you want to do is have Mr. Yagle

14    remain on the jury, proceed with opening statements today and

15    begin testimony on Monday?

16             MR. McKENNA:  Yes, Your Honor.

17             MS. MILLER:  Yes, Your Honor.

18             THE COURT:  Okay.

19             Eugene Yagle takes the place of Juanito Millado.

20             I am now told another juror wishes to speak to me.

21             Mr. Yagle can go back in the juryroom.  Once he is in

22    the juryroom, you can bring out Ms. Migdalia Cento.

23             Is there a position from either side what the jury is

24    told why we are not sitting tomorrow and Friday?

25             MR. McKENNA:  Your Honor, perhaps what you could do

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1557

 

1    is, you could inquire of Mr. Yagle if he minds if we explain to

2    the jury the reason and if he does mind, then just say you have

3    a scheduling problem or an emergency, and if he doesn’t mind,

4    just tell the jury.

5             MS. MILLER:  Your Honor, I would suggest it wouldn’t

6    even have to be done with reference to a particular juror.  I

7    think an explanation from the Court that one of the jurors has

8    a medical issue that needs to be addressed.

9             THE COURT:  Why don’t I just say a conflict in the

10    next two days, or medical conflict.

11             MS. MILLER:  I think a medical conflict will be better

12    portrayed to the jury.

13             THE COURT:  I will indicate it is a medical conflict

14    which might also give them an opportunity to get their affairs

15    in order in the next couple of days.

16             Let’s renumber now the alternates.

17             Yagle is now juror number 9.  Miguel Torroba becomes

18    alternate number 1, Marjorie Hahn number two and Beverly

19    Holland number three.  Is that correct?

20             MS. MILLER:  Yes, Your Honor.  I did want to return to

21    the question ‑‑ we would request the Court consider the

22    prospect of asking Mr. Yagle whether he could change it to try.

23             THE COURT:  I will ask him at a break before any

24    announcement is made as to the schedule.  When we take our

25    first break, I will ask him to remain for a few moments and see

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1558

 

1    if that can be arranged or not be arranged without putting any

2    pressure on him.  If his doctors feel he must do it tomorrow,

3    he will do it tomorrow and go forward with it.  If it is

4    possible to push it back a day, I will see what his reaction is

5    to that.

6             We now have three alternates and how do the parties

7    wish for the Court to proceed?  I would like to hear your

8    positions?  I would like a fourth alternate.

9             MS. MILLER:  We would request that the Court proceed

10    as it indicated yesterday, that by now expanding the pool of

11    alternates that has some impact on the strategic decisions that

12    counsel may have made.  Therefore we are going beyond where we

13    originally were at the point we made our strategic decisions

14    that the Court should grant a peremptory challenge to each side

15    as indicated yesterday.

16             MR. McKENNA:  Yesterday I thought the ground rules

17    were you were going to give an extra challenge on the

18    alternates if you replaced two jurors today.  We didn’t do

19    that.  We only replaced one.

20             What I am suggesting is the following.  We go with

21    three alternates and Your Honor has the authority and we agree

22    with this in the end to proceed with 11 jurors to deliberate;

23    you can do that under the case law and I think we will be fine

24    with three alternates.

25             If you won’t do that, I think all we have to do is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1559

 

1    move Mr. Harrell up and we are all set.  We don’t have to go

2    through any more peremptories or challenges or questions or

3    anything.

4             THE COURT:  What is the government’s position with

5    proceeding with three alternates rather than four?

6             MS. MILLER:  Well, Your Honor, obviously it is more

7    comfortable to have four alternates specially in a trial of

8    this length.  If the Court is not going to give us a peremptory

9    challenge, we would suggest going with three alternates.  That

10    would be a more fair thing than to expand the pool of

11    alternates beyond what the parties originally contemplated when

12    they contemplated their strikes.

13             THE COURT:  Let me hear from Ms. Cento before I make a

14    final ruling on this issue.

15    BY THE COURT:

16    Q.  Good morning.  Would you state your name for the record

17    once more?

18    A.  Migdalia Cento.

19    Q.  It was my understanding you wanted to speak to me before we

20    began?

21    A.  Yes.  I don’t think that I can fill in the jury because I

22    don’t feel I will be able to understand everything of the words

23    and all of that and to maintain it.  About nine years ago I had

24    a small stroke.  I have my doctor’s note if you want to see it

25    and I am scared I am not going to be able to give a fair trial

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1560

 

1    to understand everything that is going to be going on.  I

2    didn’t bring it forward before because I didn’t think I was

3    going to be picked, but I will not be able to understand a lot

4    of the words.

5    Q.  You were here in Court and you and I were speaking, did you

6    have any problems understanding me?

7    A.  No.  I don’t mean understanding English.  I mean the words,

8    like a lot of words I won’t know what the meaning of them will

9    be.

10    Q.  Did you have any problem understanding the meaning of any

11    words that I used on the questions?

12    A.  No, that is not that hard, where I live and what I do and

13    the questions you were asking me now, some things of the case.

14    Q.  Do you work?

15    A.  Yes.

16    Q.  What do you do?

17    A.  I do letters for the University.  I stuff the envelopes and

18    I make sure they are all intact, but I don’t process them or

19    anything like that.

20    Q.  If you would step inside, please.

21    A.  Okay.  I have my doctors note if you want to see it.

22    Q.  This is a note from when?

23    A.  When I had my stroke.

24    Q.  When was it?

25    A.  Nine years ago.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1561

 

1    Q.  I don’t need to see it.

2             THE COURT:  I would like both sides to reference their

3    notes regarding this juror to see if there is anything that

4    indicates a lack of understanding of anything that was either

5    asked of her or that went on in Court.  My notes do not reflect

6    anything of such a nature.

7             MS. MILLER:  Your Honor, my notes are the same.  The

8    one thing ‑‑ she was asked about her husband, question number

9    five.  She said he came here in 1964.  She was trying to

10    express he came here in the Pedro Pan program ‑‑

11             THE COURT:  And I helped her with that.

12             MS. MILLER:  That was the only thing.

13             THE COURT:  Anything from the defense side as to any

14    indication?

15             MR. McKENNA:  No, Your Honor.

16             THE COURT:  Anybody want to state a position?

17             MS. MILLER:  Your Honor, the government would not seek

18    to change this juror’s status at this time.  The parties have

19    had an opportunity to observe her, to observe her in a give and

20    take and she seemed to us to have the level of comprehension to

21    serve on this jury and indeed beyond the minimum level of

22    comprehension.  I certainly don’t doubt at all the lady had a

23    stroke and that may have resulted in some diminution from where

24    she was at a certain point in the past but at the present she

25    is at a place that is suitable to serve and to comprehend to a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1562

 

1    degree that would make her a qualified juror.

2             MR. McKENNA:  We agree with that.

3             THE COURT:  Okay.

4             Three alternates it is.

5             I have an introductory instruction I give the jurors.

6    I normally allow jurors to take notes and I provide pens and

7    pads for them.  Is there any objection from either side?  I do

8    include in my introductory instructions the pattern jury

9    instruction regarding notes and I will also include it at the

10    conclusion of the case, to remind jurors what significance they

11    should or should not give their notes.

12             Any objection?

13             MR. McKENNA:  No objection.

14             MS. MILLER:  No, Your Honor.

15             MR. McKENNA:  When the government is concluded with

16    their opening statement, would you give us a few minutes to set

17    up, like a brief three minute break, four minute break?

18             THE COURT:  Sure.  We will be taking breaks.  I expect

19    the first break will be ‑‑ I believe Ms. Miller indicated one

20    to two hours.

21             MS. MILLER:  It will definitely be less than two

22    hours.  Maybe less than one.

23             THE COURT:  We can take a break at that time,

24    Mr. McKenna.

25             MS. MILLER:  So we can be crystal clear on any issues

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1563

 

1    of witness sequestration, we do have present in the courtroom

2    two individuals who have been exempted from witness

3    sequestration rule and they will be present during opening

4    statements.

5             THE COURT:  Are these people we have discussed before?

6    These are family members?

7             MS. MILLER:  Family members and our case agents and

8    another government personnel that was the subject of a motion.

9             MR. McKENNA:  That has already been resolved and the

10    other matter at side bar about that other witness.

11             MS. MILLER:  As to which we have an agreement.

12             THE COURT:  We are waiting a moment because Lisa

13    organizing the jury members since they don’t know their seats.

14    She is lining them up in what is a very small room with a very

15    large table and a lot of people.  I would say it is a daunting

16    task, but I am sure she will accomplish it.

17             (Interruption.)

18             THE COURT:  We are missing a juror.  We are going to

19    call this juror.  Diana Barnes.

20             MR. KASTRENAKES:  Had she already come in this

21    morning?

22             THE COURT:  No.

23             MR. KASTRENAKES:  She has just not showed yet?

24             THE COURT:  I am not positive on that. I think she has

25    not come in this morning.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1564

 

1             COURT SECURITY OFFICER:  She is here.  She came in

2    late and was sitting out there with the other jurors.

3             (Jurors present.)

4             THE COURT:  Swear in the jury, please.

5             (A jury of 12 and three alternates was sworn.)

6             THE COURT:  Members of the jury, now that you have

7    been sworn, I will give you some preliminary instructions to

8    guide you in your participation in the trial.  It will be your

9    duty to find from the evidence what the facts are.  You and you

10    alone are the judges of the facts.  You will then have to apply

11    to those facts the law as the Court will give it to you.  You

12    must follow that law whether you agree with it or not.

13             Nothing the Court may say or do during the course of

14    the trial is intended to indicate, nor should taken by you as

15    indicating what your verdict should be.  The evidence from

16    which you will find the facts will consist of the testimony of

17    witnesses, documents and other things received into the record

18    as exhibits, and any facts that the lawyers agree or stipulate

19    to, or that the Court may instruct you to find.  Certain things

20    are not evidence and must not be considered by you.  I will

21    list them for you now.

22             Statements, arguments and questions by lawyers are not

23    evidence.  Objections to questions are not evidence.  Lawyers

24    have an obligation to their client to make an objection when

25    they believe evidence being offered is improper under the Rules

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1565

 

1    of Evidence.  You should not be influenced by the objection or

2    by the Court’s ruling on it.  If the objection is sustained,

3    ignore the question.  If it is overruled, treat the answer like

4    any other.

5             If you are instructed some item of evidence is

6    received for a limited purpose only, you must follow that

7    instruction.  Testimony that the Court has excluded or stricken

8    from the record or told you to disregard is not evidence and

9    must not be considered.  Anything you may have seen or heard

10    outside the courtroom is not evidence, and must be disregarded.

11    You are to decide the case solely on the evidence presented

12    here in this courtroom.

13             There are two kinds of evidence, direct and

14    circumstantial.  Direct evidence is direct proof of a fact such

15    as testimony of an eye witness.  Circumstancial evidence is

16    proof of facts from which you may infer or conclude that other

17    facts exist.  I will give you further instructions on these as

18    well as other matters at the end of the case; but have in mind

19    you may consider both sides of evidence.

20             It will be up to you to decide which witnesses to

21    believe, which witnesses not to believe and how much of any

22    witness’ testimony to accept or reject.

23             I will give you some guidelines for determining the

24    credibility of witnesses at the end of the case.

25             As you know, this is a criminal case.  There are three

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1566

 

1    basic rules about a criminal case that you must keep in mind.

2    First, the defendant is presumed innocent until proven guilty.

3    The indictment against the defendants brought by the government

4    is only an accusation, nothing more.  It is not proof of guilt

5    or anything else.  The defendants, therefore, start out with a

6    clean slate.

7             Second, the burden of proof is on the government until

8    the very end of the case.  The defendant has no burden to prove

9    his innocence or to present any evidence or to testify.  Since

10    the defendant has the right to remain silent, the law prohibits

11    you in arriving at your verdict from considering that the

12    defendant may not have testified.

13             Third, the government must prove the defendant’s guilt

14    beyond a reasonable doubt.  I will give you further

15    instructions on this point later.  Bear in mind in this

16    respect, a criminal case is different from a civil case.

17             During the trial, it may be necessary for me to confer

18    with the lawyers from time to time out of your hearing

19    concerning questions of law or procedure that require

20    consideration by the Court alone.  On some occasions, you may

21    be excused from the courtroom as a convenience to you and to us

22    while I discuss such matters with the lawyers.  I will try to

23    limit such interruptions as much as possible; but you should

24    remember at all times the importance of the matter you are here

25    to determine and should be patient, even though the case may

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1567

 

1    seem to go slowly.

2             A few words about your conduct as jurors.  First, I

3    instruct you that during the trial you are not to discuss the

4    case with anyone or permit anyone to discuss it with you.

5    Until you retire to the juryroom at the end of the case to

6    deliberate on your verdict, you simply are not to talk about

7    this case.

8             Insofar as the lawyers are concerned, as well as

9    others whom you may come to recognize as having some connection

10    with the case, you are instructed that in order to avoid even

11    the appearance of impropriety, you should have no conversation

12    whatsoever with those persons while you are serving on the

13    jury.

14             Second, do not read about this case in the newspapers.

15    Do not listen to the radio or view any TV broadcasts about this

16    trial.  Media accounts may contain matters that are not proper

17    evidence for your consideration.  You have to base your verdict

18    completely and solely on what is introduced into the record as

19    evidence in the case.

20             Third.  Do not try to do any research or make any

21    investigation about the case on your own.

22             Fourth.  If you would like to take notes during the

23    trial you may do so.  On the other hand, of course, you are not

24    required to take notes if you don’t want to.  That will be left

25    up to you individually.  If you do decide to take notes, do not

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1568

 

1    try to write everything down because you will get so involved

2    in note taking that you might become distracted from the

3    ongoing proceedings.  Just make notes of names, dates, places;

4    things that might be difficult to remember.  Also, your notes

5    should be used only as aids to your memory and if your memory

6    should later differ from your notes, you should rely upon your

7    memory and not your notes.  If you do not take notes, you

8    should rely upon your own independent recollection or memory of

9    what the testimony was, and you should not be unduly influenced

10    by the notes of other jurors.  Notes are not entitled to any

11    greater weight than the recollection or impression of each

12    juror concerning what the testimony was.

13             Fifth.  You should pay close attention to the

14    testimony because it will be important to rely on your memory.

15    As you know the court reporter is making a stenographic record

16    of everything that is said.  Typewritten transcripts will not

17    be prepared in sufficient time or appropriate form for your use

18    during your deliberations and you should not expect to receive

19    them.

20             On the other hand, any exhibits admitted in evidence

21    during the trial will be available to you for detailed study if

22    you wish during your deliberations.

23             If an exhibit is received in evidence but is not fully

24    read or shown to you at the time, don’t be concerned, because

25    you will get to see it and study it later during your

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1569

 

1    deliberations.

2             Finally, do not form any opinion until all the

3    evidence is in.  Keep an open mind until you start your

4    deliberation at the end of the case.

5             The trial will now begin.  First the government will

6    make an opening statement which is simply an outline to help

7    you understand the evidence as it comes in.  Next the

8    defendants attorneys may but do not have to make opening

9    statements.  Opening statements are neither evidence nor

10    arguments.  The government will then present its witnesses and

11    counsel for the defendants may cross examine them.

12             Following the government’s case, the defendants may if

13    they wish present witnesses who the government may cross

14    examine.  After all the evidence is in, the attorneys will

15    presents their closing arguments to summarize and interpret the

16    evidence for you and the Court will instruct you on the law.

17    After that, you will retire to deliberate on your verdict.

18             If you do decide to take notes, as you see, we have

19    provided pads and pens for you.  If you would on the first page

20    of your notebook identify yourself by the seat that you are in

21    in the jury box, which would be 1 through 4 in the first row, 5

22    through 9 in the second row ending with Mr. Yagle, then 10

23    through 15.  Ms. Cento is number 15, in the third row.

24             With that, you may proceed.

25             MR. BUCKNER:  Thank you, Your Honor.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1570

 

1             May it please the Court, counsel, ladies and

2    gentlemen, good morning.  My name is David Buckner, I am an

3    Assistant United State’s Attorney here in the Southern District

4    of Florida.  Along with Caroline Heck Miller and John

5    Kastrenakes, we have the privilege of representing the United

6    States in the case that will be brought to you over the next

7    several weeks.

8             Ladies and gentlemen, this is a case about agents of

9    the Cuban espionage service who came to this country to spy.

10    Their goals were to penetrate United States military

11    installations and gather information on the activities of the

12    United States military.  To spy on domestic political groups

13    and sow discord and conflict among members of those groups.  To

14    deceive elected representatives of the United States and law

15    enforcement personnel in this country, and to bring about the

16    murders of four men over international waters, north of Cuba.

17             Now, the first question in this case that arises is,

18    who are the defendants.  With respect to some of them, it is

19    easier to say who they are not.

20             For instance, this third defendant back here in the

21    back with the mustache, he has represented himself while he has

22    been here in the United States as Ruben Campa; but that is not

23    his real name.  Because the evidence will show that the real

24    Ruben Campa died in California in infancy.  That man is listed

25    in the indictment as John Doe number 3.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1571

 

1             The evidence will show this second man in the middle

2    here in back against the bar is not Luis Medina.  Even though

3    that is the way he has held himself out while he has worked

4    here as a spy for the Government of Cuba in the United States,

5    sadly the real Luis Medina died in infancy in California.

6             This third gentleman here in back against the bar

7    closest to you, the evidence will show that he is not Manuel

8    Viramontez.  Even though until his arrest in this case he held

9    himself out to be Manuel Viramontez, to everyone he met in the

10    United States.

11             Unfortunately for that man, an acquaintance of his

12    from his old neighborhood in Cuba recognized him while he was

13    here, and he will testify that that man’s real name is Gerardo

14    Hernandez.

15             Together, these three men and the two gentlemen behind

16    them who I will discuss in a minute and several other

17    individuals make up what was call La Red Avispa, The Wasp

18    Network.

19             The two men in the back have a slightly different

20    story.  The first man on the left with the glasses is named

21    Antonio Guerrero.  He was born in the United States but he

22    returned to Cuba at a young age with his parents.  He returned

23    to the United States years later at the direction of the Cuban

24    Intelligence Service.

25             The other defendant, the man in the jacket against the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1572

 

1    wall back there with a beard and mustache is named Rene

2    Gonzalez.  He too was born in the United States and returned to

3    Cuba at a young age and he appeared to defect back to the

4    United States at the direction of the Cuban Intelligence

5    Service to begin his work here for them.  As I said, these five

6    gentlemen and others made up The Wasp Network.

7             The first thing you might notice about these five

8    defendants is that their stories slightly differ.  The three

9    gentlemen in the first row are here under assumed names, while

10    the two gentlemen in the back row are here operating under

11    their real names.  That is because, as the evidence will show,

12    The Wasp Network like other Cuban intelligence networks has two

13    types of intelligence operatives, illegal officers like the

14    three men in the front, and agents, the two men in back.

15             Illegal officers are full‑time intelligence

16    operatives.  There only work is to carry out the intelligence

17    mission of the Cuban Intelligence Service.  They have fake

18    identities, they live under assumed names and they manage a

19    stable of agents who carry out the tasks assigned to the

20    networks by the spy masters in Havana.

21             One of the things that illegal officers have to cloak

22    them in secrecy is what is called a legend.  Everybody has a

23    life story.  The sum total of the things you have done, people

24    you have met, where you have been to school, the friends you

25    have.  Well, illegal officers have life stories too, but they

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1573

 

1    are made up and they are called legends.  Their story is

2    designed to provide them with a cover to explain why they are

3    here so no suspicion falls on them.  Because in fact, despite

4    the fact those three gentleman in front represented themselves

5    to be American Nationals, they are really Nationals of the

6    Republic of Cuba.

7             Illegal agents like the two gentlemen in back are

8    different.  They live under their real names.  They go about

9    their jobs and do their daily tasks just like the rest of us;

10    but they also lead secret lives, because while they are going

11    about their daily tasks among us here, they are also carrying

12    out the tasks given to them by the illegal officers which they

13    in turn receive from the Cuban Intelligence Service in Havana.

14             Agents, as opposed to illegal officers, however, do

15    not have direct contact with the Cuban Intelligence Service

16    offices in Havana.  They receive all of their tasking and all

17    of their instructions from the illegal officers.

18             Now, one of the many concepts you will hear about in

19    this case is something called compartmentalization.  What that

20    basically means is, the keeping separate of the various agents

21    in a network so no one agent knows of all the other agents

22    within the network.

23             This is a chart of the members of the wasp network.

24    You will notice along the top row are the illegal officers.  On

25    the bottom row are the agents.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1574

 

1             The goal of compartmentalization is to insure that if

2    anyone of these agents is arrested or decides to turn himself

3    in or work for the United States, that the rest of the agents

4    remain secured.  Because as you will hear, illegal officers

5    come and go.  They are given different assignments and they

6    come and go to the community as needed.  Agents, on the other

7    hand are placed for the long term.  Their goal is to make long

8    term penetration of whatever target has been assigned to them

9    by the Cuban Intelligence Service.  Oftentimes that can take

10    many years, requiring that they remain secure and anonymous

11    from U.S. law enforcement over extended periods of time.

12             For instance, you will hear evidence that this man,

13    Rene Gonzalez, the defendant in the back row and this man,

14    Alejandro Alonso who has pled guilty in this case and will

15    testify before you, were tasked with penetrating the same

16    domestic political organization.  However, neither one knew

17    that the other was working for Cuban intelligence.  However,

18    Gerardo Hernandez, who was controlling both agents, knew that

19    they were both working for Cuban intelligence, and you will

20    read his report describing his effort to keep these two men

21    from learning about the true nature of the other’s work.

22             Another thing that is worth pointing out on this

23    chart, the agents here along the bottom, some of them operated

24    individually like defendant Antonio Guerrero.  Others worked in

25    husband and wife teams like defendants Nilo and Linda Hernandez

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1575

 

1    or Joseph and Amarylis Santos.  Also each illegal officer, the

2    gentlemen in the top row here has several identities and I will

3    discuss the meaning behind those as we go along.  Gerardo

4    Hernandez, also had the cover name of Manuel Viramontez.  In

5    addition, he had a number of code names, Giro, Giraldo and

6    Manny; and what is called an escape identity, was Daniel

7    Cabrera and I will explain what an escape identity is in a few

8    minutes.

9             The agents on the other hand have basically their real

10    identity and their code names, and you will see these code

11    names come up over the course of the case.

12             You may be asking yourself how we know all of this.

13    Well, as I have alluded to already, the defendants wrote

14    numerous and voluminous reports about their activities here in

15    the United States.  The agents wrote the illegal officers.  The

16    illegal officers wrote to the Cuban Intelligence Service in

17    Havana.  The Cuban Intelligence Service sent tasks back in the

18    form of reports to the illegal officers which were sometimes

19    passed on to the agents.

20             These reports were written on computers and they were

21    encrypted and put on computer disks, so if a casual observer

22    were to get their hands on one of these disks, there will be no

23    information for them to see.  However, you will hear in this

24    case about how the FBI was able to get its hands on some of

25    these disks during the course of numerous searches of some of

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1576

 

1    these defendants residences.

2             You will also hear how using the encryption disks that

3    these defendants had in their possession, the FBI was able to

4    make their reports readable, and during the course of this

5    case, you will receive several volumes of the reports written

6    by various of these defendants, and it is important to note

7    these reports you will receive are not summaries, they are not

8    paraphrases, they are these defendants exact words regarding

9    their intentions and their goals as they worked as spies here

10    in our community.

11             Another question you might be asking is, how did these

12    illegal officers get these disks back to Cuba.  Well that is

13    the story of another part of the Cuban intelligence system.

14             As I have explained, these gentlemen along the top are

15    known as illegal officers, illegal officers.  They are also, as

16    you will hear, such a thing as legal officers.  These are

17    intelligence agents of the Government of Cuba operating in the

18    United States with a legal cover to be here and in this case

19    you will hear evidence about two such individuals.  Both of

20    whom work for the Cuban mission to the United Nations in New

21    York with diplomatic credentials.  The government will present

22    a videotape showing this man, Leonardo Estefan meeting with

23    defendant John Doe number two who goes by the name of Luis

24    Medina in a bathroom in a Wendy’s Restaurant.  You will see

25    them exchange bags and other materials and you will watch as

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1577

 

1    defendant John Doe number two changes his clothing so anyone

2    who might have seen him go in would not recognize him on the

3    way out.

4             We will also present evidence that this man, Antonio

5    Gonzalez Gonzalez operated an accommodation address for the

6    wasp network.  The evidence will show an accommodation address

7    is a post office box maintained by legal officers who of course

8    don’t tell the people they are renting the box from that they

9    work for the Government of Cuba; but the use of such boxes

10    allows the illegal officers to send their disks and other

11    material to the legal officers so they could be transported

12    back to Cuba in a diplomatic pouch.

13    Q.  Now, some of these things may seem mundane in isolation,

14    the accommodation box, for example, a post office box.  Taken

15    together with some of the other methods I will describe in a

16    few minutes, all of these things paint a portrait of a

17    sophisticated and highly motivated espionage cell operating in

18    the midst of our community.

19             Another method of communication that the Cuban

20    Intelligence Service used and which you will hear about in this

21    case is what is known as high frequency radio messaging.  The

22    illegal officers, and by the way, these three illegal officers

23    here on the end were listed in the indictment as John Doe’s

24    four, five and six.  This is their cover names, Albert Ricardo

25    Villarial ‑‑ they are listed in the indictment as well but they

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1578

 

1    are no longer in this country.  However, at various points

2    during the pendency of the conspiracy charged in this case,

3    they had responsibility for managing this network as well as

4    some or all of these agents involved.

5             One of the ways the Cuban Intelligence Service kept in

6    touch with its illegal officers and gave them some of their

7    tasking, specially things that needed to be done on an

8    expedited basis, was through high frequency radio messages.

9    These are messages that go out over shortwave radio and picked

10    up by the illegal officers using standard shortwave radios at a

11    set time and date and each of these defendants in the first row

12    had radio plans that let them know when they were supposed to

13    listen and those will be in the documents you will receive.

14             The high frequency radio messages were encrypted as

15    well.  They appeared in groups of five letters and they were of

16    a relatively limited length given the amount of effort needed

17    to both encrypt them and broadcast them as well as receive

18    them.

19             You will receive in evidence in this case the

20    encrypted form of many of these high frequency messages which

21    the FBI was able to intercept in this case.

22             You will also see what happens after the FBI was able

23    to apply the decryption program found in these defendants’

24    possession, the three illegal officers, and you will see that

25    these radio messages look a lot like telegraphic messages,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1579

 

1    because given their short length, there is a necessity for an

2    economy of words.  However, as you will see when I discuss the

3    shootdown of Brothers to the Rescue, these radio messages were

4    critical to alerting these illegal officers, specially

5    defendant Hernandez, as to their various tasks here in the

6    community, particularly ones that needed to be done with some

7    dispatch.

8             As I said, just with the documents you will receive

9    that came off computer disks, you will also receive in evidence

10    a binder of these high frequency radio messages that were sent

11    to the illegal officers before you here.

12             Another method of communicating with the illegal

13    officers, the three gentlemen in the front row, is what is

14    known as data bursts and the defendant Joseph Santos who has

15    pleaded guilty and has agreed to testify, will tell you about

16    how this system works based on his training in Cuba.

17             When the illegal officers needed to make a quick

18    report to the Cuban Intelligence Service, they would draft that

19    report on their computers.  Then use an encryption program and

20    send the encrypted report, usually a very short report, to

21    their modem which was attached to a standard hand held tape

22    recorder.  The tape recorder recorded the modem sound as the

23    message was turned into sounds which could be sent over the

24    telephone lines.  The illegal officer would go out and after

25    conducting sufficient surveillance would proceed to a telephone

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1580

 

1    where he called any one of a number of telephone numbers set up

2    by the Cuban Intelligence Service and when the modem sounded on

3    the other end of the line, he would play the message and the

4    data would be sent.

5             Again, some of these things seem mundane, seem almost

6    simple, but taken together they show the sophistication and

7    power of this organization and their obsession with secrecy and

8    keeping their activities covert.

9             The defendants as I said were obsessed with secrecy.

10    Their compartmentalization procedures were designed to make

11    sure that no matter what happened to anyone of these

12    individuals, the network could go on.  They used data bursts,

13    encrypted disks, high frequency messages, all of them encrypted

14    so casual observers would have no idea what they were doing or

15    how they were doing it.  The secrecy was designed to obscure

16    their operations from the community in which they lived, this

17    community.

18             Another part of the illegal officers secrecy, their

19    cover in addition to their legends, were the number of

20    fraudulent documents that they obtained or carried with them.

21    Some of those documents were obtained here in this country by

22    fraudulent means.  Other were created in Cuba and one witness

23    will testify to you that some of these documents created in

24    Cuba are among the best counterfeit documents he has ever seen.

25             For example, the three illegal officers in the first

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1581

 

1    row, each had as I noted before a primary identity.  Manuel

2    Viramontez, Luis Medina III, Ruben Campa, and each was found in

3    possession of numerous documents to support those identities,

4    driver’s licenses, social security cards, birth certificates;

5    but they weren’t their own.  They were documents that either

6    were originally made for other people such as the birth

7    certificates for the real but unfortunately deceased infants

8    whose identity they assumed or documents created out of whole

9    cloth, just like their legend.

10             In addition, these illegal officers had what is known

11    as escape documents and identities.

12             As I said before, the illegal officers come and go.

13    They run the cell, but they can be moved around as needed in

14    order to keep the integrity of the agent network intact, so the

15    agents stay in place for extended periods.

16             If any of the illegal officers were discovered, or

17    feared they were about to be discovered, they had a second set

18    of documentation that would allow them to escape from the

19    United States, hence the name “escape documents.”

20             The government will introduce into evidence many of

21    those escape documents.  The defendant Hernandez had the escape

22    identity of Daniel Cabrera.  He had a passport with his

23    photograph in it but with Daniel Cabrera’s real biographical

24    information.

25             The real Daniel Cabrera will come in and testify that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1582

 

1    obviously this man is not him.

2             Defendant John Doe number two, Luis Medina, utilized

3    the escape identity of Edwin Martinez.  He too had a number of

4    documents including what appeared to be an authentic U.S.

5    passport which was not his.  His passport had Edwin Martinez

6    biographical information.  The real Mr. Martinez will also

7    testify.

8             The defendant John Doe number three who went by the

9    name Ruben Campa, utilized the name of Osvaldo Reina.  He had a

10    passport with his photograph with the biographical information

11    of the real Osvaldo Reina who will testify.

12             One thing that is also important to note in this case,

13    ladies and gentlemen, you will not hear the Hollywood version

14    of spying.  There are no cars that turn into submarines in this

15    case.  There are instead, however, a number of techniques and

16    spy craft that will be presented to you, some of which I have

17    already discussed.  The fact is, this case is about the long

18    term sustained efforts of these defendants and this network to

19    penetrate their objectives and provide information or services

20    as required to the Cuban Intelligence Service.  That is what

21    this case is about.  Not the gadgets.

22             As I noted, nonetheless, this is a highly

23    sophisticated spy network that was advancing in its goals,

24    penetrating its targets.  Despite its limited budget, it was

25    able to accomplish what it did because of the zeal of its

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1583

 

1    members, their commitment to their cause, and the strength of

2    their organization and techniques.

3             I told you about the who.  I told you about the how.

4    The question naturally arises is what were they here doing,

5    what were their tasks?  Well, they had several.  The first and

6    one of the most important was the penetration of U.S. military

7    facilities here in the Southern District of Florida.  The

8    evidence will show one of the facilities targeted by these

9    defendants was the Boca Chica Naval Air Station in Key West.

10    Defendant Guerrero in the back was able to obtain a job at the

11    Boca Chica station as a sheetmetal worker in the public works

12    section.  He used that job as a springboard for his

13    intelligence gathering work.  Initially he was tasked in his

14    efforts by defendant Hernandez.  Later when defendant Medina,

15    John Doe number two, showed up as the military intelligence

16    expert for the group, he took over control of defendant

17    Guerrero; and it is important to note the evidence will show

18    John Doe number two came to the South Florida area from Tampa

19    where he lived just outside the McDill Air Force Base.  While

20    Joe Doe number two was away from the circuit, John Doe number

21    three substituted for him, a man by the name of Ruben Campa.

22    During that time he directed the work of defendant Guerrero.

23    Defendant John Doe number three, the evidence will show, lived

24    for a time in Fayetteville, North Carolina, a stone’s throw

25    from the Camp LeJeune Marine Base.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1584

 

1             I talked before about the reports written back and

2    forth between agents and illegal officers and Cuba.  You will

3    see in evidence the highly detailed reports prepared by

4    defendant Guerrero about the activities at the Boca Chica Naval

5    Air Station.  He tracked the movement of units, of aircraft,

6    personnel.  He even reported on the birth dates of some of the

7    ranking officers at the base.

8             In addition, however, to all of that, he also noted

9    that several locations on the Boca Chica base were carrying out

10    what he termed top secret activity, and that is his term.  You

11    will see it in his report in English.

12             The illegal officers tasked defendant Guerrero with

13    following up and confirming those top secret activities and

14    defendant Guerrero admitted he would do so.

15             One of the top secret facilities he thought he had

16    identified was a building known as the hot pad or building 1125

17    and the defendant Antonio Guerrero was, through his work as a

18    sheet metal worker, assigned for a time to work on that

19    building.  As a result of his work, you will see that he was

20    able to pass a blueprint of that building back to the illegal

21    officers.

22             Another building identified by defendant Guerrero was

23    the Joint Interagency Task Force, another building carrying out

24    a top secret activity.  He was able to also provide to the

25    illegal officers details about the interior of that building,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1585

 

1    even as he expressed his frustration with not being able to

2    learn more.

3             Ladies and gentlemen, we will introduce photographs of

4    many of these buildings at Boca Chica Naval Air Station that

5    defendant Guerrero identified and it will be obvious to you the

6    degree of care taken by the United States Military to prevent

7    access to these facilities.  However, unfortunately for the

8    military, and unbeknownst to them, the spy was already in their

9    midst.

10             Another task given to defendant Guerrero by the

11    illegal officers was to expand and deepen his relationships

12    with people who had access to information of value to the Cuban

13    regime and defendant Guerrero repeatedly stated in his reports

14    his vigorous efforts to expand those relationships, to use

15    those people to get access to the information that the Cuban

16    Government wanted.

17             You will see that defendant Guerrero was trained in

18    intelligence gathering techniques while he was in Cuba,

19    including, among other things, the use of personal

20    relationships to gather intelligence and the recruitment of

21    foreign nationals for intelligence gathering purposes.

22             You will also learn from the documents he was trained

23    in the use of assaults and explosives.

24             Defendant Guerrero was repeatedly reminded by the

25    illegal officers and comrade Saul, the military intelligence

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1586

 

1    officer at headquarters in Havana who controlled this aspect of

2    the spy network, of the importance of his work for the survival

3    of the Cuban Government.

4             You will also see that he received report cards from

5    the Cuban Intelligence Service ranking him based on the amount

6    of secret information he was able to obtain.

7             Another facility targeted by The Wasp Network was

8    known as the Southern Command or Southcom.

9             The United States military divides the world into

10    commands; areas of responsibility.  Within each of those areas

11    of responsibility the command in charge of it is responsible

12    for all United States Military operations, the planning and the

13    carrying out of those operations.  You can see from this chart

14    the United States Southern Command was responsible for all U.S.

15    military operations, including the defense of the country and

16    the stopping of aggression in South America, Central America,

17    the Caribbean and you will notice Cuba is a part of that area.

18             In 1996, the evidence will show that the southern

19    command moved its headquarters from the Panama Canal Zone to

20    right here in South Florida.  Almost immediately The Wasp

21    Network was set on determining whether they could make a

22    penetration of the southern command.  In fact, they were told

23    that the number one priority of the Cuban Intelligence Service

24    was to effectuate a penetration of the Southern Command

25    Headquarters.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1587

 

1             You will read from some of the disk documents that I

2    have talked about, the tasking to the agents and the reports

3    back from the agents regarding the effort to penetrate

4    Southcom.  In particular, defendant John Doe number two, Luis

5    Medina, tasked the Santoses, other agents with the job of

6    making the penetration of Southcom, and he passed on to them

7    the reports he had received from the Cuban Government, the

8    Cuban Intelligence Service, indicating that that was their

9    number one priority, the number one priority of the entire

10    service.

11             First defendant Hernandez was in charge of the

12    Santoses and their initial efforts to penetrate Southcom.  Like

13    I said before, once John Doe number two, Luis Medina showed up,

14    he took over the aspects of the military gathering of the

15    network.

16             The Santoses provided detailed reports of the area

17    around the Southern Command, the streets, the police stations,

18    the entire operative situation.  They were so good that one

19    report compliments them that someone in Cuba who had not

20    actually seen the site could visualize it in their mind.

21             Step two of the penetration was that one of these

22    agents was supposed to try to get a job in the Southern Command

23    and you will read in the reports the frenzied efforts that The

24    Wasp Network made, particularly at the urging of John Doe

25    number two, to try to get enough information to find out when

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1588

 

1    jobs would be offered so they could play an agents inside the

2    Southern Command.

3             The ultimate goal was to place a Cuban spy inside the

4    United States Southern Command where they could gather any and

5    every scrap of information regarding the national defense of

6    the United States.  Joseph Santos will tell you about the

7    training he received for that work, everything from document

8    photography to the recruitment of foreign nationals for

9    intelligence purposes.

10             Like I said before, we know this from the decrypted

11    documents.  They are in the defendants’ own words and words of

12    their spy masters back in Havana.  They are not summaries.  You

13    will see their code names at the top, their sign off code names

14    at the bottom; it is their writing and it is the clearest most

15    powerful window into their intentions and goals in this entire

16    case.

17             One thing you will see not, ladies and gentlemen is

18    any classified document that these defendants were able to

19    gather and pass through the Government of Cuba.  That is

20    because, thankfully, the FBI was able to arrest these

21    defendants before they were actually successful in achieving

22    the goals of their penetration of these military facilities.

23             Defendants Guerrero, Hernandez and John Doe number

24    two, Luis Medina, are charged with conspiracy to commit

25    espionage.  That is, that they agreed with one another and with

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1589

 

1    their spy masters back in Havana and others, to gather national

2    defense information of the United States, including non‑public

3    national defense information.

4             The agreement itself, ladies and gentlemen, you will

5    learn is the crime.  The defendants need not have succeeded in

6    their goals to be found guilty of it.

7             Some things you will hear about, like the fact

8    defendant Guerrero counted aircraft at Boca Chica Naval Air

9    Station, does not involve the passing of classified

10    information.  But the documents themselves, the defendant’s own

11    words will lead you to the inevitable conclusion that these

12    defendants agreed amongst themselves, committed themselves to

13    gathering any and every shred of national defense information

14    they could get, including non‑public information, and that is

15    the crime with which those three defendants are charged.

16             Another task assigned to the Wasp Network which I note

17    initially was to spy on domestic political groups.  These

18    groups ran the gamut from humanitarian organizations to groups

19    that advocated positions on the Government of Cuba.  Two groups

20    in particular drew the attention of the Wasp Network and their

21    handlers back in Havana; Brothers to the Rescue and Movimiento

22    Democracia.

23             Brothers to the Rescue was founded in the 1990s in the

24    midst of the Cuban raft crisis.  The gentlemen who started the

25    organization were aware many of the rafters that left Cuba

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1590

 

1    never made it to United States but died on the open water

2    before reaching here.  They began flying small aircraft over

3    the Straits of Florida trying to spot rafters and reporting the

4    positions of those rafters to the Coast Guard so they could be

5    rescued.  The Democracia movement started in the mid 1990s and

6    its goal was to liberalize the Government of Cuba and try to

7    bring about Democratic reforms through peaceful protest,

8    usually in the form of flotillas on the Florida Straits.

9             Two defendants, one who is here, one who is no longer

10    here as I will explain in a minute, Rene Gonzalez and Juan

11    Pablo Roque were tasked with penetrating Brothers to the

12    Rescue.  Both are pilots.  Defendant Gonzalez was also tasked

13    with penetrating the democracy movement as was Alejandro Alonso

14    who will testify for you.  Their job was to report anything and

15    everything that these groups were up to to the cuban

16    intelligence service.  They were, in essence, the eyes and ears

17    of the Cuban regime inside these two organizations.

18             You will also hear about how defendant Juan Pablo

19    Roque who returned to Cuba presented himself to the FBI as a

20    narcotics informant, offering information on narcotics

21    trafficking.  After making that initial contact, Juan Pablo

22    Roque told the FBI he had information on Brothers to the

23    Rescue, and he then brought in Rene Gonzalez who he claimed had

24    information on narcotics trafficking.

25             What they were really up to, though, was trying to

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1591

 

1    penetrate the FBI.  The Cuban Intelligence Service, as you will

2    see in the reports refers to the FBI as SEE, which translates

3    into English as Enemy Special Services and one of the purposes

4    of the network was to find out what the FBI was up to, whether

5    the FBI was on to them.  They never told the FBI they were

6    working for the Government of Cuba or the Cuban Intelligence

7    Service, and defendants Roque and Gonzalez never told the FBI

8    agents they met with that they were reporting back to Cuba each

9    and every detail of every meeting they had with the FBI.

10             Another of the tasks undertaken by the network was

11    something they called “active measures.”  Active measures

12    usually used letters, sometimes telephone calls to try and

13    spread rumors or threats and fear throughout the Cuban exile

14    community and beyond.  Some of the letters that the network was

15    tasked with sending by the Cuban Intelligence Service was

16    designed to embarrass people.  They were attempting, as you

17    will see, to undermine the legitimacy of the heads of various

18    organizations, to bring scorn and distrust between and among

19    people in the South Florida community.  But they didn’t stop

20    there.  Some of the letters as you will see were downright

21    threatening.  They were written in the voice of Miami exiles

22    designed to give the impression that the exile community was

23    more extremist than anyone imagined.  One such letter which ‑‑

24    the text of which you will see in the defendants report said,

25    “shudder when you start your car.”

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1592

 

1             They were not above sending threatening letters to

2    members of Congress and their report indicates they sent one

3    such threatening letter to Alan Simpson who expressed an

4    opinion about the Cuban Adjustment Act.  Again, the goal being

5    to discredit the Cuban community in Miami, to make them appear

6    as extremist, to delegitimize various of its members.

7             Speaking of members of Congress, when defendant

8    Gonzalez came to this country as a defector, the Cuban

9    Intelligence Service had a bit of a problem.  They were

10    training his wife, code name “Ida,” to work as a Cuban

11    intelligence officer in this community as well, but they

12    couldn’t simply let her come here after defendant Gonzalez

13    appeared to defect.  It would raise suspicions.  So they

14    directed defendant Gonzalez to use his contacts inside the

15    exile organizations to which he belonged and was a trusted

16    member, to reach out to members of Congress to enlist their

17    help to bring his wife to the United States.

18             You will learn she ultimately made it here, but no one

19    who assisted defendant Gonzalez if his efforts to bring his

20    wife here had any idea they had been deceived into bringing in

21    a spy.

22             The final task of the Wasp Network, specificly as I

23    said, defendant Hernandez, was to bring about the murders of

24    four members of Brothers to the Rescue over international

25    waters north of Cuba.  To facilitate the deadly confrontation

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1593

 

1    that the Cuban Government had planned for Brothers to the

2    Rescue.

3             Ladies and gentlemen, that confrontation occurred on

4    February 24, 1996.  Four innocent lives were brutally

5    extinguished that afternoon.

6             The story starts, again, with defendant Juan Pablo

7    Roque.  You see in late 1995, the Cuban Government, the Cuban

8    Intelligence Service, decided it was time to bring defendant

9    Juan Pablo Roque home, and initially they proposed that he

10    steal a Brothers to the Rescue aircraft and stage a propaganda

11    stunt, fly back to Cuba, denounce Brothers to the Rescue as a

12    CR, counter revolutionary organization, a term the Cuban

13    Intelligence Service used to refer to all organizations.

14             At the same time, Agent Castor was to discredit Agent

15    Roque in the organization.  The obvious purpose was to

16    compartmentalize again, limit the damage, because if anybody

17    put two and two together and noticed that Mr. Roque was

18    responsible for bringing Rene Gonzalez into the organization

19    and into the FBI, they might reach the obvious conclusion.  So

20    Castor, Rene Gonzalez, began to suddenly discredit Juan Pablo

21    Roque to shore up his position, to harden the walls of the

22    compartments within the spy network so when Roque left, Rene

23    Gonzalez could remain in place as the eyes and ears of the

24    Cuban regime inside the organizations they were working

25    against.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1594

 

1             In early 1996, however, the Cuban regime had enough of

2    Brothers to the Rescue.  They suspected that the Brothers to

3    the Rescue in addition to flying the rafter rescue missions,

4    were also responsible for dropping leaflets that floated over

5    Cuba and that announced the group’s desire to bring about

6    Democratic change.  The Cuban Government, the Cuban

7    Intelligence Service was determined to respond.

8             They again proposed that Juan Pablo Roque steal a

9    Brothers to the Rescue aircraft, fly it to Cuba and with

10    spectacular proof raise the spirit of the population facing

11    Brothers to the Rescue’s impunity.

12             However, those plans were not finalized and Juan Pablo

13    Roque and defendant Gonzalez continued their work of reporting

14    on Brothers to the Rescue and for defendant Gonzalez, the

15    democracy movement.

16             At the end of January, 1996, defendant Hernandez

17    returned from Cuba to South Florida and suddenly everything

18    changed.  He had been turned on by the Cuban Intelligence

19    Service to their concerns over the insolence of Brothers to the

20    Rescue, the way in which they had presumably dropped the

21    leaflets and thumbed their noses at the Cuban regime.

22             As I said, everything changed.  Gone were plans for

23    Juan Pablo Roque to steal an aircraft and fly it to Cuba.

24    Instead, superior headquarters announced simultaneously with

25    defendant Hernandez’ return to the United States in a high

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1595

 

1    frequency message decoded by defendant Hernandez’ decryption

2    code, that Operation Scorpian had been approved in order to

3    perfect the confrontation with Brothers to the Rescue.  The

4    tasking changed.  They got more specific.  Rene Gonzalez and

5    Juan Pablo Roque were to increase their reporting on the

6    activities of Brothers to the Rescue, what planes were flying,

7    what their tail numbers were, who the pilots were, who else was

8    on board, what their headings were, their intentions, their

9    altitude and distance.  Every detail was to be sent back to the

10    Cuban Intelligence Service.

11             They were also to be instructed that they were not

12    under any circumstances to fly with Brothers to the Rescue

13    without prior notice to the Cuban Intelligence Service, and if

14    for some reason they were forced to fly without prior notice,

15    they were to get on the plane’s radio and utter a certain

16    phrase like, long live Brothers to the Rescue and the democracy

17    movement, so the Cuban Intelligence Service and the Cuban

18    regime would know their spies were on board those planes.

19             Then the beginning of February, 1996, the Cuban

20    Intelligence Service announced in a high frequency radio

21    message, Juan Pablo Roque’s return to Cuba was set for the end

22    of February.  February 18 a message was cents declaring that

23    MX, the executive head of the Cuban Intelligence Service had

24    directed under no circumstances should Juan Pablo Roque or Rene

25    Gonzalez fly with Brothers to the Rescue or any other

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1596

 

1    organization from February 24 to the 27th during the meeting of

2    Concilio Cubano; and you will hear during the course of this

3    case ladies and gentlemen about Concilio Cubano.  A group

4    starting in Cuba whose goal was to bring about democratic

5    reforms in the government.  They operated openly knowing full

6    well their activities might be disfavored by the Cuban regime

7    and they asked the Cuban Government for permission to meet from

8    February 24 to February 27th, 1996.

9             The Cuban Intelligence Service, ladies and gentlemen,

10    had set up a triple play.  They would extricate Juan Pablo

11    Roque from the United States.  They would facilitate their

12    violent confrontation with Brothers to the Rescue and they

13    would disrupt and draw attention from the Concilio Cubano

14    meeting by both of the first steps, while at the same time

15    denouncing the counter revolutionary group Brothers to the

16    Rescue with full force and vigor.

17             Rene Gonzalez was instructed that upon learning of

18    Juan Pablo Roque’s flight from the South Florida community and

19    redefection, he was to shore up his position with those two

20    organizations so no suspicion would be upon him.  In the days

21    leading up to February 24, Juan Pablo Roque snuck out of town.

22    He left without even telling his wife Ana Martinez.

23             February 24, 1996, Operation Scorpian was brought to

24    its deadly conclusion.  That afternoon three single‑engine

25    Cessna aircraft headed south out of the Opa Locka Airport on a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1597

 

1    rafter rescue mission.  One of those aircraft was piloted by

2    Jose Basulto.  It headed south, briefly penetrating Cuban air

3    space and away from the other two aircraft.

4             The other two Cessnas flew the rafter rescue missions

5    they had been assigned over international waters in

6    international air space north of Cuba.  The first plane was

7    flown by Carlos Costa, a 29 year old Miami native who was a

8    pilot, obviously, and who wanted to be an airport

9    administrator.

10             Next to him in the spotter’s seat, the seat for the

11    person spotting the rafters was Pablo Morales who had been

12    rescued by Brothers to the Rescue when he was a rafter and had

13    returned as a volunteer to the organization to repay the debt

14    he felt he owed.

15             The second aircraft was flown by Mario De La Pena, a

16    24 year old Miami native who dreamed of gathering enough flight

17    time so he could become a full‑time pilot.  In his spotter’s

18    seat was Armando Alejandre, a Vietnam veteran who was on his

19    second mission for Brothers to the Rescue.  He had flown the

20    week before with the group delivering food and supplies to

21    Cuban rafters detained in the Bahamas.

22             As these two aircraft flew slowly over international

23    waters in international air space north of Cuba, they did not

24    know that at that very moment a Soviet built, Cuban flown,

25    MIG 29 armed with missles and guns was searching for them.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1598

 

1             The MIG 29 first found the plane flown by Costa and

2    Pablo Morales.  With a single missile, the MIG 29 vaporized the

3    small Cessna, killing both men.

4             A short time later as the plane flown by Mario De La

5    Pena searched for the wreckage of the first aircraft, horrified

6    onlookers watched as the MIG 29 came up behind the second

7    Cessna and shot it in the back with a missile, leaving only

8    wreckage on the surface of the water killing both men.

9             Ladies and gentlemen, we will present the testimony of

10    the eye witnesses to those shootdowns.  We will also present

11    the testimony of a radar operator who will demonstrate for you

12    that these shootdowns occurred over international waters in

13    international air space.

14             How did defendant Hernandez celebrate the completion

15    of his mission?  Well, Cuban Intelligence Service sent a

16    message that the Commander and Chief had come by to evaluate

17    the success of the mission and determine what follow‑up could

18    be carried out.  One message read, “we have dealt the Miami

19    right a hard blow in which your role has been decisive.”

20    Defendant Hernandez thereafter was promoted to captain by the

21    Cuban Intelligence Service.

22             Defendant Juan Pablo Roque arrived in Cuba safe and

23    sound on February 24 and immediately took to the airwaves to

24    denounce Brothers to the Rescue.  He also said that FBI Agent

25    Oscar Montoto had told him not to fly that day because

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1599

 

1    something bad was going to happen; but you will hear from

2    Special Agent Montoto and he will tell you that simply is not

3    true.

4             In the messages, the high frequency messages the Cuban

5    Intelligence Service sent out thereafter, the name Operation

6    Scorpian is never to be used again.  Names like Operation

7    Vedette or German, code name for Juan Pablo Roque, Operation

8    Venecia were used, as if somehow changing the name would

9    reremove the stain.

10             Ladies and gentlemen, at the conclusion of this case

11    you will receive a copy of the indictment the Judge discussed

12    with you.  You will notice that there are 26 counts or

13    individual crimes with which these defendants were charged.

14    They can really be broken down into four groups.  The first set

15    of counts charge the defendants, all of them, individually,

16    with being agents of the Republic of Cuba without notifying the

17    Attorney General of the United States as required by law, and

18    in addition, some of the defendants, the illegal officers are

19    charged with aiding and abetting other agents in the network in

20    their work as agents of the Republic of Cuba without

21    notification.

22             Their guilt of these crimes is established by their

23    presence here and by the lack of notification to the

24    government.

25             The second set of charges has to do with the false

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1600

 

1    document and in these counts, the three illegal officers in the

2    first row, defendant Hernandez, John Doe number two, Luis

3    Medina and John Doe number three, known as Ruben Campa are

4    charged with possessing the bevy of documents I discussed

5    earlier, both their primary identities and their escape

6    documents.

7             The third type of charge is the conspiracy to commit

8    espionage which I discussed earlier relating to the efforts to

9    infiltrate the southern command and the Boca Chica Naval Air

10    Station; and as I explained, defendants Guerrero, Hernandez and

11    John Doe number two, Luis Medina, are charged with agreeing

12    among themselves and with others in the Cuban Intelligence

13    Service to gather and transmit to Cuba national defense

14    information of United States, including non‑public information.

15    The agreement is the crime.

16             The fourth charge, type of charge, but it is a single

17    charge, charges only defendant Hernandez with conspiracy to

18    commit murder resulting from the shoot down of the Brothers to

19    the Rescue aircraft on February 24, 1996.

20             Ladies and gentlemen, you are going to be presented

21    with a substantial amount of evidence in the case.  You are

22    also going to be presented with a substantial amount of

23    documents and as I emphasized before, they are these

24    defendants’ own words and the tasks sent to them verbatim from

25    the Government of Cuba.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1601

 

1             I am confident you will make the effort to review all

2    of these documents during your deliberations.  To use that

3    window the defendants have provided into their intentions,

4    their motives, their goals and their accomplishments as members

5    of the Cuban spy cell here in South Florida, and I am confident

6    that after you review all of that evidence, listen to the

7    testimony and consider this case amongst yourselves, you will

8    find these five defendants guilty of each and every count in

9    the indictment with which they are charged.

10             Thank you.

11             THE COURT:  Ladies and gentlemen, we are going to take

12    a break at this time.  Do not discuss this case either amongst

13    yourselves or with anyone else.  Have no contact whatsoever

14    with anyone associated with the trial.  Do not read or listen

15    to anything touching on this matter in any way.  If anyone

16    should try to talk to you about this case, you must immediately

17    tell them to stop, that you are serving on the jury and the

18    Judge has ordered you not to talk about the case and you must

19    then report it to my staff.

20             If you would, be back in the juryroom in 15 minutes.

21             Mr. Yagle, if you would remain for just one moment,

22    sir.

23             You may proceed to the juryroom and you may leave your

24    notebooks.

25             (Jury leaves room.)

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1602

 

1             THE COURT:  Mr. Yagle, obviously you are a member of

2    this jury.  I want to accommodate you for the medical procedure

3    you have.  I wanted to find out if it was possible to push it

4    back one day to try.

5             A JUROR:  I would have to call my doctor.

6             THE COURT:  Do you think you could call the doctor

7    during the break?  If it is possible to do that, fine.  If it

8    is not possible to do that, that is fine too.  I don’t want you

9    to think I am not going to allow you to be there Thursday

10    morning if that is the day it needs to be done.  If it can be

11    moved to Friday, we could give you Friday and the weekend and

12    coming back on Monday, assuming and hopefully everything will

13    be fine and you will be back Monday morning to join us.  If

14    not, I would certainly give you Thursday and Friday and we

15    would just begin a new on Monday.  If you could check with your

16    doctor now, I would appreciate it.

17             A JUROR:  I will.

18             (Thereupon a recess was taken, after which the

19    following proceedings were had.)

20             (Open court.  Jury not present.)

21             THE COURT:  United States of America versus Gerardo

22    Hernandez, et al. Case Number 98‑721.

23             Would counsel state their appearances.

24             (All parties present.)

25             THE COURT:  The interpreters are present as they have

 

 

RICHARD A. KAUFMAN, CMRR

 

1603

 

1    been throughout the entire morning.

2             I wanted to supplement the record with an Eleventh

3    Circuit case regarding the Batson challenge.  United States

4    versus Cardoba M O S Q U E R A, 212 F.3rd 1194 and of course

5    the Batson decision 476 U.S. 79.

6             Juror number 5, Omaira Garcia, has indicated to Lisa

7    that she answered the general questionnaire regarding her own

8    service in the military and her husband was in the reserve and

9    may have been at some of the places mentioned by the government

10    in their opening.

11             I bring that to your attention.

12             Are you ready to proceed, Mr. McKenna?

13             MR. McKENNA:  Yes.

14             THE COURT:  Bring the jurors in.

15             (Jury present.)

16             THE COURT:  You may proceed, Mr. McKenna.

17             MR. McKENNA:  On February 24, 1996, the day of the

18    shoot down, right after Jose Basulto and two other Brothers to

19    the Rescue aircraft had taken off from Opa Locka Airport, the

20    radio tower at the airport came on and addressed Mr. Basulto

21    and said “safe flight.”   Mr. Basulto’s response was, “we will

22    need it.”

23             The question in this trial is why would a pilot with

24    30 years experience and a professional license and thousands

25    and thousands of hours in the sky need luck on that day.  The

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1604

 

1    answer to that question is, this was no routine rafter mission.

2    This was a deliberate flight right into the teeth of the

3    Government of Cuba for a confrontation.

4             Ladies and gentlemen, the evidence in this case will

5    show that Mr. Basulto and these Brothers to the Rescue aircraft

6    had been warned, repeatedly, about violating Cuban air space

7    which they had done for over a year.  They were warned by the

8    FAA, they were warned by the State Department, and they were

9    warned by the Government of Cuba; but they disregarded these

10    warnings on that day and Jose Basulto led four men to their

11    deaths.

12             Whenever there is a violent death there is heartache,

13    there is anger and there is a call for someone’s head.  That

14    man right over there, ladies and gentlemen, seated right behind

15    me, is the scapegoat.

16             Let me take a step back for a moment.  My name is Paul

17    McKenna.  I am a private attorney.  I have a small two man

18    office in Coconut Grove, Florida.  I do not represent the

19    Government of Cuba.  I don’t represent Fidel Castro, and I am

20    definitely not a communist.  I am an American lawyer, a member

21    of the bar of this Court and I was appointed by the Court to

22    represent Mr. Hernandez and I am paid by the Court.

23             Having said that, I want you to understand that all

24    lawyers in this courtroom are officers of the Court.  We are

25    all equals in the eyes of the Court and equals as we stand here

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1605

 

1    before you.  I will do my best in this case to present this

2    case to you clearly and honestly.

3             We talked about Mr. Hernandez and that is his real

4    name.  His real name is not Viramontez or Cabrera.  It is

5    Gerardo Hernandez.  It is not an issue the government doesn’t

6    have to call witnesses to prove another identity, I concede

7    that right now.  The question is, what was he doing here in the

8    United States, and that is what this trial is going to be all

9    about.

10             Let me tell you a little bit about him.  Mr. Hernandez

11    came here back in 1994.  He got a little apartment up in North

12    Miami.  He attended night school.  He made some friends.  He

13    had a small apartment he paid about $500 a month on, and it

14    really wasn’t what you might think like some kind of a James

15    Bond pad.  It was more like an Austin Powers pad, kind of a

16    jock.  This gentleman had a budget from his country of about

17    $500 a month to be a “spy” in the United States.

18             What was he doing?  What was his purpose here?  His

19    general purpose was to send information back to Cuba.  What

20    kind of information?  Information about groups, information

21    about people that interested Cuba.  For example, in the mid

22    1990s there was a waive of terrorist bombings in Cuba.  Hotels

23    were blown up and tourists from Italy and other countries were

24    murdered.  These terrorist bombings were linked back to exile

25    groups from Miami.  Cuba has no relationship with the United

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1606

 

1    States.  Whatever relationship they have, they have to conduct

2    through third countries like Switzerland, and because of this

3    bizarre estrangement that has been going on for 40 years years,

4    to find out about the terrorist activities going on in their

5    own country, they sent people here.  Not to injure us, not to

6    hurt the United States, but to protect them.  To prevent injury

7    to people in Cuba, to prevent injury to Cuba even of families

8    of exiles from the United States.

9             What is some of the information that was sent back to

10    Cuba?  Some examples?  Everything from how to get a library

11    card in the United States, if you could imagine, to how many

12    planes you could see landing on the airstrip from U.S. 1 down

13    in the Keys at the Boca Chica Naval Air Station.

14             There is one thing about the information gathering

15    that was engaged in, it was never intended to injure the United

16    States.  Never.  That is a very important concept.  This is a

17    copy of Count 2 in the indictment which is the so‑called

18    espionage count.  The language in the indictment says that for

19    the crime to have been committed, the information sent has to,

20    one, relate to the national defense and has to be sent with the

21    intention of injuring the United States.

22             Ladies and gentlemen, there was never any intent to

23    injure the United States.  These men couldn’t have injured the

24    United States even if they had wanted to.  How do we know this?

25    I will call some expert witnesses.  Retired generals that have

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1607

 

1    spent a lifetime in the military.  I have a retired general and

2    a retired admiral.  The general is General Atkinson, the

3    admiral is Admiral Caroll.  These gentlemen work for war

4    colleges and they teach and write and give seminars at

5    universities and they had the unique opportunity in the mid

6    1990s, the exact period we are talking about, to go to Cuba and

7    meet with Cubans and learn about their military, their

8    strengths, their military objectives, their military

9    philosophy.

10             The bottom line about Cuba you will hear from these

11    experts, it is like a David and Goliath and according to what

12    he told me and what he will tell you, Cuba is the David, but

13    they don’t even have a rock to throw at the giant.  That is how

14    pathetic they are.

15             He also told me that the Cuban military people are

16    very aware of things like Grenada, things like the invasion of

17    Panama, things like the invasion of Iraq by the United States

18    and other forces, and these people realize they would be

19    annihilated by the United States in a matter of hours or days.

20             So, the bottom line is, the evidence will show there

21    was never any intent on the part of these men to injure our

22    country.  The only intent they ever had was to protect people

23    in their own country, and the reason they had to be here is

24    because of this crazy relationship that exists between the

25    United States and Cuba, like two family members that haven’t

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1608

 

1    spoken in 40 years.

2             Now, I want to talk now about the Brothers to the

3    Rescue.  That is definitely one of the features of the case,

4    and what I want you to understand about the Brothers to the

5    Rescue shootdown to understand is this.  You can’t really

6    understand it unless you understand the president and founder

7    of the Brothers to the Rescue, Jose Basulto.  He has a long

8    relationship with Cuba that goes back 40 years to the time when

9    he was a CIA operative that had been dropped into Cuba,

10    clandestinely in the late 1950s, early 1960s and his job was to

11    try and create some armed insurrection.  He had a cover as a

12    university student and this is how he first became known to

13    people in Cuba.

14             After that, he participated in the failed Bay of Pigs

15    invasion.  He returned to the United States, but he went back

16    in the early 1960s and he carried out an attack with a cannon

17    on a hotel.  He blew up a hotel that had some military people

18    in it by using a cannon.  He has admitted those things, he is

19    proud of these things.

20             He also participated in the 1980s in air lifting

21    supplies to the contra rebels in Nicaragua, and in the 1990s,

22    right smack dab in the middle of the events surrounding this

23    case, he was involved in making home made antipersonnel devices

24    that would be dropped over Cuba to injure people, and he has

25    admitted this to the Federal Bureau of Investigation.  It is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1609

 

1    not something we are whipping up.  It is on record.

2             This is who Cuba was dealing with.

3             As you know, Basulto founded Brothers to the Rescue.

4    Make no mistake about it, Brothers to the Rescue was founded

5    for an honorable purpose.  As counsel stated before, the

6    purpose was to save rafters that were fleeing Cuba in the

7    Straits of Florida and Mr. Basulto’s organization which was

8    founded in the early 1990s saved hundreds and hundreds of lives

9    and was a true humanitarian effort and Mr. Basulto’s work in

10    that respect was honorable.

11             However, something very important happened in the mid

12    1990s.  The United States changed its immigration policy as a

13    result of the Migration Accord that was struck between Cuba and

14    the United States.  It started in 1994, and it was made

15    official in 1995, and what that migration accord meant was,

16    that from that time on, any rafters that Mr. Basulto spotted

17    from his plane and radioed the coast guard, the coast guard

18    would take those people back to Cuba instead of bringing them

19    to the United States.  That was the beginning of the end of

20    Brothers to the Rescue, because the last thing Mr. Basulto

21    would want to do to anybody fleeing Cuba is to send them back.

22    That is not what his beliefs are and not what his mission was.

23    His mission was to bring fleeing people from Cuba into the

24    United States, into this community, not to send them back.  If

25    he was to spot a foundering boat or a boat with people on it

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1610

 

1    and call the coast guard, the cost guard would pick those

2    people up, take them back to Guantanamo, the American base in

3    Cuba and later on start repatriating people back to Cuba.

4             I will even show you through contributions Brothers to

5    the Rescue got, but after the Migration Accord, the funding

6    dried up.  His purpose was basically over.  From May of 1995

7    until the time of the shoot down, he didn’t rescue one rafter.

8    There were no rafters to rescue.

9             Now, here is what happens.  Mr. Basulto recognizing

10    that the rafter rescue mission, part of the Brothers to the

11    Rescue, is over, makes a fundamental change in the mission of

12    the Brothers to the Rescue.  Instead of being a humanitarian

13    organization that is going to save rafters fleeing Cuba, his

14    new goal is, he is going to have confrontations with the

15    Government of Cuba and he started that in 1994.

16             This is what they would do.  They would use the

17    Brothers to the Rescue aircraft.  They would file flight plans

18    saying they were going to go look for rafters, but they

19    wouldn’t follow those flight plans.  They would fly down to

20    Cuba, go into Cuban air space which is totally illegal, against

21    international law, Cuban law, rules of the Federal Aviation

22    Administration; very dangerous, and I will explain that in a

23    minute; but totally violate all the rules about international

24    flying, went into Cuba again and again and again.  What he

25    would do is drop leaflets from his aircraft, leaflets that were

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1611

 

1    calling people to rise up against Castro.  He would drop bumper

2    stickers.  He would do it is over populated areas flying at

3    roof top level.

4             The Cuban Government was obviously outrageed about

5    those activities.  They showed restraint.  They didn’t use

6    their mission to shoot him down when these activities started

7    in the late 1990s and 1995.  What they did was go through the

8    Swiss Embassy because they don’t have a direct relationship; so

9    through the Swiss Embassy, they sent a number of notes which I

10    will show you.  These diplomatic notes show that the government

11    of Cuba told the United States, you have to stop this man.  You

12    have to stop him.  You cannot let him fly over Havana, fly over

13    Guantanamo, fly over the provinces and drop these leaflets and

14    do what he is doing.  It is dangerous, it is against all our

15    rules, it is prohibited, you must stop it.

16             What did the United States do?  Amazingly, they did

17    absolutely nothing.  And it continued, and it all came to a

18    head on July 13, 1995.  That was the day of a large flotilla

19    that went down to Cuba to protest the Government of Cuba.  It

20    was advertised long in advance.  We will go down, we will have

21    a protest against the Government of Cuba, and Brothers to the

22    Rescue announced that it was going to take a squadron of its

23    planes and buzz Havana, buzz populated areas around Havana.

24             This time the Cubans said look, we have to take very,

25    very strong measures and here is what their concern was.  To

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1612

 

1    understand a major part of their concern, you have to

2    understand a little bit about traffic control.  The way air

3    traffic control works in the Caribbean, we have our Miami Air

4    Traffic Control Center that dispatches flights or helps flights

5    flying towards the Caribbean and South America.  The air

6    traffic control handles the flights up until something called

7    the 24th parallel, which is ‑‑ I will show it to you right on

8    this little chart.  Down here is Havana.  This is the

9    territorial limit of Cuba, this little line and up here is the

10    24th parallel, this big line that goes across up here.

11             All jumbo jets and these planes that go to Jamaica or

12    Barbados or Venezuela, they are under the Miami Air Traffic

13    Control until they get to here.  Once they get to here, it is

14    transferred over to Havana.  We do have enough trust in the

15    Cubans to let their air traffic control center handle all

16    American Airlines, United, U.S. Air, American, all airlines

17    flying over Cuba to wherever, South America.  There are joint

18    efforts.  The air traffic controllers in Havana talk to the air

19    traffic controllers in America and you will hear from them on

20    the Miami end and the Cuban end.

21             What you will hear is, there is no such thing as

22    visual flight flying.  That is when you don’t use instruments,

23    you fly low.  Your typical weekend person that goes up in a

24    plane.  That is prohibited in every part of Cuba.  It is not

25    allowed.  There is no such thing as flying over Havana.  The

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1613

 

1    air space is so restricted there is not any kind of airplane,

2    jet, military, anything, nothing flies over Havana.

3             The big concern was this.  With Basulto and all these

4    aircraft flying willy‑nilly over Cuba, it disrupts the air

5    traffic control.  Not only is there a risk of collisions, but

6    the other problem that you had is Basulto would tie up the

7    radio frequency with Havana.  He would get on their frequency

8    that they have at the air traffic control and talk about all

9    kinds of things like politics, my brothers, I am a free Cuban

10    and all this other stuff which prevents the air traffic

11    comptroller from directing these jumbo jets which have to know

12    what altitude to be at and where to land and Cuba has many

13    countries it sends planeloads of tourists every day.

14             So it was a plain announcement by Basulto he was going

15    to go down there and do these things.  The Americans and the

16    Cubans got to go.  They sent the Federal Aviation Association

17    to see Basulto and the Brothers to the Rescue pilots and told

18    them you cannot violate Cuban air space.  It is a twelve mile

19    limit outside of Cuba.  You can’t go down there.  You can’t fly

20    over Havana.  It is a dangerous thing to do, you are at risk,

21    you could be shot down.  Do not do it.

22             What did Basulto do?  He completely ignored them.  He

23    went down and took the entire squadrons of aircraft down.  They

24    set up special command centers in Miami and Havana and they

25    told all the commercial jets to get on a different frequency

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1614

 

1    that day so they would not have the problem of not being able

2    to communicate, by Basulto jamming up their air way.  They had

3    to go through all kinds of trouble to do that.

4             The amazing thing about this July 13 incident, it is

5    captured on video.  He had an NBC television camera and

6    reporter inside of his plane and they filmed the whole thing.

7    They flew at roof top level over Havana.  They flew over the

8    national oil refinery which greatly concerned the Cubans given

9    their knowledge of his track record of shooting Canons at

10    hotels and doing other such things.  They were alarmed about

11    this situation.

12             The video shows Basulto playing a cat and mouse game

13    with missions over Havana.  It is a real eye opener.  It is

14    something firsthand.  You will get to see what he was up to.

15    You could see him reaching down and throwing things out the

16    window, medallions, bumper stickers, propaganda leaflets.

17             The evidence will show, you might be able to do

18    something like that in the streets of Little Havana, but you

19    can’t do it over another country’s sovereign air space.  The

20    mission that day showed restraint.  They didn’t shoot anybody

21    down and I also have a transcript of a 30 minute conversation

22    with Mr. Basulto by the air traffic controllers where they

23    pleaded with him for 30 minutes.  Sir, we do not guaranty your

24    safety.  The Cuban Air Force is up there.  They can shoot you

25    down.  We don’t guaranty your safety.  What did he do?  He

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1615

 

1    completely ignored them.  He buzzed Havana, went back to the

2    United States and triumphantly appeared on the six o’clock news

3    and boasted and bragged how he buzzed Havana and they didn’t do

4    anything and it was a slap in Cuba’s face.  They were

5    humiliated.  This time they said we are going to give a warning

6    to Basulto, a clear, clear warning, and they sent it to the

7    State Department and here it is, ladies and gentlemen, and it

8    couldn’t be clearer.  This was personally delivered to

9    Mr. Basulto, and here is what it says.  This is from the

10    Department of State of the United States of America.  “Public

11    announcement August 8, 1995.  The Department of State warns

12    that entering Cuban territorial waters or air space without

13    prior authorization from the Cuban Government may cause one to

14    be the subject of arrest or other enforcement action by Cuban

15    authorities for violation of Cuban law.  Generally speaking,

16    under international law, each coastal state may claim a twelve

17    mile territorial sea.  A country’s sovereignty extends to the

18    air space over its territorial sea.  Cuba claims a twelve mile

19    territorial sea.  Hence, any vessel or aircraft that goes

20    inside the twelve mile limit off Cuba, would be inside Cuban

21    territorial waters or air space and thus subject to the

22    jurisdiction of the Cuban Government.  Furthermore, under

23    international agreements, Cuba provides air traffic control

24    services up to the 25th parallel, an area well beyond its

25    territorial jurisdiction as required under the Convention under

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1616

 

1    civil aviation to which the United States is a signatory and

2    must follow established international rules of the air

3    including positive communication with the providing of air

4    traffic service and the submission of a flight plan.

5             In a public statement issued on July 14, the day after

6    the flotilla, the Cuban government asserted its firm

7    determination to take actions necessary to defend Cuban

8    territorial Sovereignty and to prevent unauthorized incursions

9    into Cuban waters and air space.

10             Because they had given this warning before, the Cuban

11    Government warns any boat from abroad can be sunk and any

12    airplane downed.  The department takes this statement

13    seriously.

14             Well, everybody took that statement seriously except

15    Jose Basulto, who led those four men to their tragic deaths.

16             Now, what happened after July 13?  Even though there

17    was a videotape of Mr. Basulto engaging in this bizarre

18    activity, buzzing the capital of a foreign country, nothing

19    happened.  They didn’t take away his license.  They let him

20    keep flying.  Nothing.  The FAA, the State Department.

21    Absolutely nothing.  He was popular.  He was a leader of an

22    exile group.  It was an election year 1996.

23             So, what happens is this.  He keeps it up.  He keeps

24    flying these unauthorized trips and in January of 1996, a

25    little more than a month before the shootdown, and incidently,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1617

 

1    not one rafter is being searched for.  There are no rafters,

2    that is over.  These are just provocation missions.

3             In January of 1996, January 9th and January 13th he

4    goes back again.  He flies again over Cuba and he drops 500,000

5    leaflets and they are in support of a group called Concilio

6    Cubano, which coincidentally was going to have its first

7    national assembly on what date?  February 24, 1996, the day of

8    the shootdown.  That was the same day that Concilio Cubano was

9    going to have its national assembly.

10             So, what happens is, after Basulto takes this trip, he

11    goes on a radio station called Radio Marti, which is paid for

12    with tax dollars of American citizens and it transmits

13    information directly into Cuba, so you could hear the radio in

14    Cuba.  He went on Radio Marti and he bragged about how he had

15    violated Cuban air space again, and the commentator ridiculed

16    Cuba about how they couldn’t even get a MIG up in the air to

17    respond to him.  Another slap across Cuba’s face.

18             The Cubans realized, the Americans were not going to

19    do anything.  The evidence will show they provided all kinds of

20    information to the Americans.  They wrote to the President of

21    the FAA.  They wrote to the State Department.  They wrote

22    everybody.  They provided radar data, eye witness accounts.

23    They documented what they had.  They referred to the video that

24    was on the channel 5 news or channel 6 news.  The Americans did

25    nothing.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1618

 

1             It is all leading up to the February 24, 1996 date,

2    which is the date as I said that the Concilio Cubano was

3    supposed to moot.  Make no mistake, the reason Basulto and

4    those other aircraft flew that day was to defy the Cuban

5    Government again, to provoke them, to have a show down.  This

6    is what they wanted.  Their mission was over, this is what they

7    existed for, their mission.

8             On that day, they filed a flight plan and it is

9    curious, the government mentioned that my clients role in this

10    was to somehow get information to the Cubans about when they

11    were flying, what kind of flight path this would take, what

12    kind of aircraft, how many people on board.  Ladies and

13    gentlemen, do you know who provided that information to the

14    Cubans?  It was provided by the United States Government.  It

15    was provided twice on the 24th.  It was sent by the Miami Air

16    Traffic Control because Basulto and those planes filed a flight

17    plan that day and everybody knows the call number on

18    Mr. Basulto’s plane because it is N 2506.  That is the number

19    of the brigade that Mr. Basulto fought in the in the Bay of

20    Pigs and every Cuban knows what 2506 stands for.  When he filed

21    his flight plan, and he did it twice, he did it once in the

22    morning and once in the afternoon.  There was no need for my

23    client to do anything.  That information was provided by the

24    United States Government.  They knew these aircraft were

25    coming.  Also, not only did they know that day but they knew

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1619

 

1    several days before.

2             The State Department contacted the FAA in Miami, the

3    day before the shoot down and sent this communique.  This was

4    sent on February 23, 1996.

5              “The Government of Cuba’s crackdown on dissidents has

6    resulted in a number of arrests in Havana and the cancellation

7    of a meeting that was to have been convened by the umbrella

8    dissident organization, Concilio Cubano tomorrow.  We have

9    received a call from the State Department indicating that since

10    the Brothers to the Rescue and its leader Basulto support and

11    endorse the Concilio Cubano,” and there will be evidence that

12    he gave the money that people had donated to Brothers to the

13    Rescue to search for rafters, he gave it to this dissident

14    organization in Cuba.  That is what he was doing with the

15    money.  We will show you that.  Just to go on, it says, “it

16    would not be unlikely that the Brothers to the Rescue attempted

17    an unauthorized flight into Cuban air space tomorrow in

18    defiance of the Government of Cuba and its policies against

19    dissidents.”

20             That is what I have been trying to tell you, ladies

21    and gentlemen.  There has been a myth perpetrated about

22    Brothers to the Rescue that all they do is fly around looking

23    for rafters.  These were missions of provocation, slapping the

24    Cuban Government’s face.  “The State Department cannot confirm

25    this will happen and is in touch with the local law enforcement

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1620

 

1    agencies to better determine what is the situation.  I have

2    reiterated to State and the Federal Aviation Administration

3    that the FAA cannot prevent flights such as this potential one,

4    but we will alert our folks in case it happens and we will

5    document it as best we can for compliance enforcement purposes.

6             Then at the very end “State has also indicated the

7    Government of Cuba would be less likely to show restraint in an

8    unauthorized flight scenario this time around.”

9             They knew.  Everybody knew the shoot down was coming.

10    They knew it at the FAA, they knew it at the State Department,

11    they knew it in Cuba and Basulto knew it too.  He was told by

12    the FAA and the State Department, you keep pushing it, this is

13    what will happen and it is exactly what happened.

14             Let’s look at the flight plan that was filed that day

15    by Mr. Basulto.  As you can see, there are two paths.  There is

16    one with an arrow like this ‑‑ I will hold it up over here.

17    There is one with an arrow that starts over here and goes to

18    the left, then comes back towards Miami.  That was the flight

19    plan that was filed.

20             Guess what, he didn’t follow that flight plan.  He

21    violated that flight plan.  He filed a false flight plan which

22    showed the old flight plan he used to take when he did his

23    rafter missions; but this is the actual course he took and

24    there is no disagreement on this, it is all established by

25    radar.  He left Opa Locka.  He didn’t look for any rafters.  He

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1621

 

1    went right over the interior of Florida and after he got off of

2    Everglade City in that area of the Thousand Islands in Naples,

3    he did a southern drop like that.  He went over to the west and

4    he did a beeline for Havana.

5             This was obviously not a rafter rescue mission.

6             Another important thing what was going on that day.

7    If you look on this chart right above Havana, there is an area

8    called Mud 9.  That was a restricted zone that day.  It was an

9    activated zone and the Government of Cuba had issued a NOTAM,

10    called a notice to air men.  It was posted at the Opa Locka

11    area where they took off.  What this NOTAM said, there will be

12    military exercises in this area on February 24, 25, 26 and 27.

13    Stay out of this area.  Surface to air missles will be fired

14    and military engagement are going to be going on in that area

15    right there.

16             When Mr. Basulto passed the 24th parallel, he entered

17    this area called the Mud 9 and right behind him with the other

18    aircraft and the other aircraft entered that area as well and

19    the air traffic controller in Havana spoke to Mr. Basulto and

20    said you are flying into an activated zone.  You are at risk.

21    Mr. Basulto answered, “I know the danger.  I am a free Cuban

22    and I will do as free Cubans do, but I am aware of the risk and

23    the danger.”

24             He said we fly into danger every time we take this

25    mission.  He knew clearly what he was doing.  It is not as the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1622

 

1    government has tried to portray it, some kind of out of the

2    blue merciless shootdown of people who were searching over

3    international waters for rafters.  That is what they charged,

4    but that is not what occurred.

5             Anyway, they entered into this zone and the evidence

6    will show no sane pilot would fly into an activated military

7    zone except Basulto and those other two aircraft because they

8    were on this provocation meeting.

9             What happened after that?  Everybody agrees on one

10    thing, the government and experts, radar technicians, because

11    there will be a lot of complicated evidence that will be

12    introduced to you regarding the shoot down; but one thing

13    everybody agrees on, Basulto’s plane was definitely in Cuban

14    air space, thereby invoking this warning, that the Cubans would

15    shoot down any plane that went into Cuban air space.

16             There is confusion regarding exactly where the other

17    two aircraft were shot down.  The government has referred to

18    eye witnesses.  I have an expert that is going to testify in

19    this case.  He is a retired Air Force Colonel with 40 years in

20    aviation and he has completely for months studied the shoot

21    down.  He has gone to Cuba, he has gone to a facility in

22    Montreal.  This is a man who was an Air Force fighter pilot in

23    Vietnam, he flew over 400 missions.  He knows about mission, he

24    knows about engagement.  Knows about defense.  He was also a

25    commander of a NORAD wing of the United States Air Force in

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1623

 

1    charge of defending an entire part of the United States.  He is

2    allowed to give an expert opinion and he will come in here and

3    tell you what his opinion is.  Here is his opinion.  He says

4    based upon the totality of the circumstances, the facts that

5    Basulto started off his career with this insurrection movement

6    in Cuba, that he bombed hotels, he was involved with contras

7    and there will also be evidence in this case he was making home

8    made bombs that were to be dropped in Cuba amounts.

9             He will tell you about the totality of all the

10    evidence, the provocation mission, the rafter mission, the

11    flight over Havana, the Cubans no longer viewed Mr. Basulto’s

12    aircraft and Brothers to the Rescue as regular civilian

13    aircraft such as might be out on a little weekend jaunt.  They

14    lost that privilege to be viewed in that manner and they were

15    viewed as military aircraft.

16             Typically a civilian aircraft carries passengers,

17    carries cargo.  They were not doing that, they were doing

18    something paramilitary and because of that the Cubans were

19    justified, according to my expert, in shooting the plane down

20    and that this was not an act of murder, it was an act of war

21    based on the activities that they engaged in.

22             There is going to be a lot of evidence given to you

23    over the next several weeks and you are definitely not going to

24    be able to digest it all at once right now.  It will be an

25    ongoing process.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1624

 

1             All I can ask of you is to keep an open mind and don’t

2    rush to a judgment in this case.  Wait until you hear all the

3    evidence.

4             I think when you have heard all the evidence, you will

5    come to a conclusion about what happened with respect to the

6    Brothers to the Rescue and it is going to be A, that

7    Mr. Hernandez had absolutely no involvement in the decision

8    itself to shoot down the plane.  He he didn’t do anything to

9    help the Cubans.  All that information had been given by the

10    U.S. Government.

11             Secondly, you will find this isn’t what the government

12    tries to portray it as, a simple rafter mission.  You will see

13    that Basulto had a reckless disregard for law.  As a matter of

14    fact, one FAA individual that was investigating him who will

15    testify here said that after he interviewed Mr. Basulto, he

16    said Mr. Basulto believes that the rules don’t apply to him.

17    That is what he told this investigator and it is that

18    disrespect for law that led him basically to bring those four

19    men to their deaths, and I think in this case, it will be your

20    respect for law that will mean Mr. Hernandez will be saved and

21    he will not be the scapegoat for this tragic incident.

22             I thank you very much for your attention.

23             THE COURT:  Mr. Norris.

24             MR. NORRIS:  The most important thing I have to say to

25    you, I will say it first.  Do not decide this case until you

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1625

 

1    have heard all of the evidence and until you had an opportunity

2    to have the Judge tell you the law that you must follow in

3    deciding this case.  I hope that is clear.  And I hope you all

4    understand that and I hope you will all follow it.  That is, do

5    not decide the case until you have heard all of the evidence,

6    until the Judge has instructed you as to the law.

7             Why do you have to do that?  Why must you wait until

8    the end before you decide rather than doing it sort of

9    incrementally as you go along, and that is because basic

10    fairness demands you wait until the end.

11             What if after eight or ten days of hearing evidence

12    and there will be a lot of evidence and there will be a lot

13    more than eight or ten days, but what if at some point into

14    this trial you say okay, Mr. Buckner started off and he told us

15    about all of the things that he was going to prove ‑‑

16             THE COURT:  Mr. Norris, I hate to interrupt you.  One

17    of the jurors needs some water.

18             (Interruption.)

19             THE COURT:  Go ahead.

20             MR. NORRIS:  The concern in a long trial is that at

21    some point you decide that you heard enough.  In this case you

22    might say, the government has done everything it conceivably

23    could except bring helicopters and tear gas into the courtroom.

24    We have heard enough, we have decided.

25             The reason basic fairness requires you don’t do that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1626

 

1    is this.  The law says the defense doesn’t have to put on any

2    evidence, that the government has the burden of proving beyond

3    a reasonable doubt what the case is all about, and that

4    theoretically under the law I could sit over there for the next

5    couple of weeks or however long the trial takes and work on a

6    crossword puzzle.  You have to wait and hear all of the

7    evidence and decide whether the government has proven what it

8    must prove.  In this case I am not going to do that.  I will

9    not sit over there and work a crossword puzzle, because there

10    is a defense to this case, and I am going to present a defense

11    to this case, and I ask as a matter of basic fairness, you wait

12    until I have had that chance before you decide the case.

13             The law that you must apply, the Judge hasn’t

14    determined what she is going to tell you is the controlling law

15    because she hasn’t heard the evidence.  She is going to wait

16    until the end.  Then we will get together and we will work with

17    her.  She will develop the charge, she will tell you at the end

18    what the law is; so wait until that point.

19             Do not decide this case until you have heard all of

20    the evidence, until you have been told what the controlling law

21    is by the Judge.

22             My name is Bill Norris.  Like Mr. McKenna, I am a

23    private lawyer here in Miami and I have been appointed by the

24    Court to represent my client and I am paid by the Court and I

25    am not an apologist for any philosophy or any politics for any

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1627

 

1    foreign country.  I am here to defend my client.  My client is

2    Ramon Labanino.

3             The government has called him John Doe number two.

4    They have told you he has used the name Luis Medina III.  I

5    would like to come back to the question of identity in a

6    moment.  Let me tell you, other than talking to you a little

7    bit this morning about who my client is, just as Mr. McKenna

8    spent most of his time talking about Count 3, the conspiracy to

9    murder, I would like to spend most of my time telling you what

10    the testimony is going to be and what issues you should look

11    for in the evidence about Count 2, the so‑called conspiracy to

12    commit espionage.

13             Back to my client.  Ramon Labanino, he is a citizen of

14    the Republic of Cuba.  The evidence will show clearly from the

15    evidence the government has collected in this case, the

16    evidence will show he is a patriot.  He is proud to be a Cuban.

17    He is proud of his country.  He is proud of his heritage and he

18    is committed to defending it.  He has shown this by his actions

19    and you will see that beyond a shadow of a doubt.

20             Second, Ramon Labanino is a family man.  He is

21    concerned about protecting not only himself but his wife and

22    his three daughters.  He is concerned about protecting his

23    countrymen.  He is concerned about protecting the people around

24    him and his family in Cuba.  He wants to make his family’s life

25    safe and happy.

 

 

RICHARD A. KAUFMAN, CMRR

1628

 

1             The government will move, and they will, I concede

2    this, that my client used the name Luis Medina III and that is

3    not his name.

4             Mr. Labanino meant certainly no disrespect to the

5    Medina family by borrowing the name.  And if he has caused any

6    pain or dishonor to them, he will apologize to them for that,

7    but using that name is not a crime.  The evidence will show

8    there was a reason for him using a false identity and the

9    evidence will show this is not at all uncommon in a law

10    enforcement situation particularly as you will hear in this

11    case that Mr. Labanino was tasked with directing the

12    infiltration and reporting to Cuba of the extreme of the

13    elements of the exile movement here in Miami, people who are

14    tied by the Cuban Government with conducting a series of

15    shootings at hotels, machine gunning people at the beach,

16    setting explosives at hotels, restaurants, night clubs, even

17    put a bomb into the cafeteria at Jose Marti Airport outside of

18    Havana.

19             That conduct is, and there is a simple word we use in

20    the English language to describe it and the word is terrorism.

21    Mr. Labanino was tasked with penetrating those organizations

22    and he used a name other than his.

23             The government has concluded that Cuban citizens like

24    my client who lived here in the United States, that they were

25    using false identities, that they got messages from Cuba what

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1629

 

1    to do.  That they did it and sent messages back to Cuba

2    reporting on what they had found out, then he must be a spy.

3    The issue in this case as to Count 2, as to Ramon Labanino; is

4    this.  It is not just what the government has concluded that

5    Ramon Labanino is a spy for Cuba, because that is not what he

6    is charged with.  He is charged with conspiracy to commit

7    espionage for Cuba, and the key to this case, this count at

8    least, the key to the defense for my client is not that he

9    attempted to infiltrate and gather information; but whether the

10    information he was dealing with had anything to do with

11    national defense.  The key is national defense.

12             The government has accumulated a great mass of

13    information.  Believe me, you will see an awful lot of

14    evidence.  They have spent years breaking into Mr. Labanino’s

15    apartment, years.  They have been stealing his computer files

16    every time they have broken into his place.  They have been

17    taking pictures of it.  They set up a camera in his apartment

18    so when you open his door it takes a picture of him.  They have

19    taken a picture of him in the bathroom at this fast food place.

20    They have been tape recording his telephone conversations.

21    They recruited witnesses against him by offering them a break.

22    You won’t go to jail or you will get a shorter sentence if you

23    tell us about all the nasty things that this guy did.

24             They accepted these radio communications.  They have

25    done everything you could imagine the government would do.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1630

 

1    They have used all of the power that our government has and it

2    is awesome, you will be impressed what they could do.  They

3    have used all of that power and all of that resource, to

4    collect their evidence.  What is the evidence?  All it will

5    show is, my client is a Cuban citizen, which he admits.  That

6    he worked for Cuba, which he admits, and that he provided

7    information to Cuba, which he admits; and they conclude aha, he

8    is a spy.

9             We wouldn’t be here and there wouldn’t be a trial,

10    there wouldn’t be a lengthy trial unless there is a defense and

11    the defense is, it had nothing to do with espionage.

12             Language is important.  It is how we communicate.  It

13    is particularly important in a Court of law.  There is a

14    difference between spying, which is a word we use colloquially,

15    and espionage, which is more of a term of art, a specialized

16    word.  Let me give you a couple of examples which will tie back

17    into the evidence.

18             I tell someone I am going to buy a new car and he

19    tells his friend I am going to buy a new car.  Has that person

20    spied on me?  No.  I told him that. Has he committed espionage?

21    Certainly not.

22             What if I don’t tell this person anything but he sees

23    me going from car lot to car lot.  He sees me talking to the

24    salesman and he concludes from that I am going to buy a new car

25    and he tells his friend, Norris is going to buy a new car.  Is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1631

 

1    he spying on me, you may say, yes, but again, it is not

2    espionage.

3             The third example would be, what if I have in my

4    locked briefcase classified ads out of the newspaper for

5    automobile sales, some brochures from car dealers and quotes on

6    different cars and that person concludes I am going to buy a

7    new car and tells his friend.  Is that spying?  The way we use

8    the language, yes; but is it espionage.

9             I think the evidence by the end of the trial, you will

10    see that the answer is, no.

11             What is the difference?  Why could it be spying and

12    not espionage?  The spying is the activity, it is the clothes

13    you are wearing.  The espionage is the substance.  It is what

14    you are dealing with.  Where are you wearing those clothes or

15    why are you wearing those clothes.

16             The statute we are dealing with, Mr. McKenna showed

17    you a blowup card of Count 2.  That is based on a statute.

18    Congress got together some years ago and passed a law and like

19    lots of things, it says you have to do this, you can’t do that.

20    If you violate the law, you are guilty of a crime.

21             The statute that underlies Count 2, and the Judge will

22    explain what this all means at the end of the trial, Title 18

23    of the United States Code Section 794, gathering or delivering

24    defense information to aid foreign governments.  Part A says,

25    whoever, and lawyers talk funny because they read a lot of

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1632

 

1    stuff like this.  In plain English whoever means anybody.

2    Anybody with intent or reason to believe, that means you meant

3    to do it.  Anybody who meant to do it ‑‑

4             MR. BUCKNER:  I hate to interrupt counsel.  This is

5    argument and instruction on law before the appropriate point in

6    the case.

7             MR. NORRIS:  I am reading the statute.

8             THE COURT:  I will overrule it to the extent, but to

9    go into explanations would be argument at this time.

10             MR. NORRIS:  Thank you, Your Honor.

11             That it be used to the injury of the United States,

12    that is the language in the indictment that Mr. McKenna showed

13    you, or to the advantage of a foreign nation.  Then there are a

14    bunch of verbs, communicates, delivers or transmits or attempts

15    to communicate, deliver or transmit, to any foreign government.

16    Then there is a bunch of things, any document, writing, code

17    book, signal book, sketch, photographic, photographic code

18    book ‑‑ photographic negative, blueprint, plan, model, note,

19    instrument, appliance or information relating to the national

20    defense, shall be punished.

21             Part C in two or more persons conspire to do this.  So

22    that is it.  The evidence and the question in the case is

23    whether or not my client, Mr. Labanino was trying to deal with

24    national defense information.

25             Most people really haven’t thought unless you heard

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1633

 

1    Mr. McKenna’s comments, really haven’t thought about the

2    military relationship between Cuba and the United States.  The

3    defense case is going to go into that.  Mr. McKenna told you

4    about his American Army General, about his American Navy

5    Admiral who went to Cuba, but he will call witnesses.

6             I intend to call a Cuban colonel, Amels Escalante

7    Colas.  Mr. Escalante or Colonel Escalante will tell you he was

8    a medical student in the in 1958 when he decided to go into the

9    hills and fight for the revolution with Fidel.  He has been a

10    military man ever since and for the last ten years he was

11    involved in a think tank.  The David and Goliath example that

12    Mr. McKenna used really overstates the capacity of the Cuban

13    military to wage war against the United States.  They can’t do

14    it.  If any of you have any doubt about the disparity of power,

15    contemplate for a moment what is Cuba going to do if the United

16    States decides to shoot a ballistic missile at Cuba and turn

17    Havana into a see of radioactive blast?  There is nothing they

18    can do about it.

19             Colonel Escalante has explained that this is a

20    different century.  That the old World War II movies are no

21    longer operative, the coast watchers, the Australian plantation

22    owner who would get together with the American GIs off the

23    coast of Australia and explain what he saw the Japanese ships

24    doing.  That is not war at this time.

25             He will explain to you the internet, newspapers,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1634

 

1    radio, it is all there.  That you can’t organize and mount an

2    invasion without everybody knowing about it.  CNN will tell

3    you.  All you have to do is turn on your television set.

4             This kind of he is espionage is gone.

5             The other points about espionage is, national defense

6    information, and again, I will not talk about this too much

7    because this will depend on what the Judge instructs you at the

8    end of the case; but so you understand what some of the

9    disputes are between the lawyers, there is no classified

10    information in this case.  My client, Ramon Labanina has been

11    here for years and years and years.  And he has been doing

12    whatever it is that he is supposed to do very well, and the

13    government concedes that.  He is good at his job, but he never

14    got any classified information, never got any secret stuff.

15    Why not?  First of all the stuff he was sending back wasn’t

16    secret.

17             For example, if Bill Clinton ‑‑ it is a little bit

18    after 12.  What if at 1 o’clock the President of the United

19    States gets on television and says I told the aircraft next

20    week to launch impressive action against the Republic of Cuba

21    and I want every harbor, every airport, every bridge, bombed.

22    ‑‑

23             MR. BUCKNER:  Once again, Your Honor, I object to this

24    argument.

25             THE COURT:  Sustained.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1635

 

1             MR. NORRIS:  The point is, there is nothing that could

2    be done about it.  One of the examples you will see in the

3    evidence that is presented in this case, Mr. Buckner said to

4    you, they are down there collecting information about birthdays

5    of American military personnel.

6             You will see in change of command information that

7    will be put into this case, this is information the military

8    puts out.  They put it into the press or hands it out to

9    anybody that shows up at a ceremony, not just where somebody

10    was born or the ages of his kids, but what his wife does, her

11    name, age.  This is public information.  Public information has

12    nothing to do with espionage.

13             Now, the evidence will show that although my client

14    wasn’t here to commit espionage, he was here for a purpose, and

15    that purpose had to deal with the radical elements of the

16    Miami/Cuban exile community.  The people whom the Cuban

17    Government believes are responsible for the acts of terrorism

18    that have been happening in Cuba.

19             You will see in this case an awful lot of evidence

20    about instructions coming from Cuba to my client who used the

21    code name Allan, telling him to infiltrate these organizations

22    and you will see he turned around and passed this information

23    out to the people, the agents he was working with and they

24    turned around and passed back to him information about who,

25    what, where, when; all of the basic information that the Cuban

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1636

 

1    government was looking for.

2             The evidence will show something else, something very

3    significant.

4             As Mr. McKenna said, there is no front door

5    relationship between the American Government and the Cuban

6    Government because of the history over the last 40 years, but

7    the evidence will show there was a back door relationship and

8    just as with the Brothers to the Rescue, there were the

9    complaints from Cuba about the Brothers to the Rescue activity.

10             The evidence will show as to the terrorism activity,

11    there were complaints again delivered to the American interest

12    section of the Swiss Embassy in Havana, Cuba.

13             The evidence will show that was followed up by the

14    Cuban Government, taking the information that they accumulated

15    about the people who they believed were terrorists here in

16    Miami, and that that information was passed on to American law

17    enforcement including the FBI.

18             Obviously in a brief opening statement, I will not

19    cover everything but just so you will remember it when you hear

20    ^ R hear it.  There was an episode involving a boat filled with

21    explosives going to be delivered to Cuba and and you will see

22    the message traffic about that, what the Cuban Government

23    ultimately instructed to La Red Avispa what to do about that.

24             You will see drones, the little airplanes without a

25    pilot.  They were buying these and preparing to launch them

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1637

 

1    into Cuba possibly as an attempt to kill the Commander in

2    Chief, Fidel Castro.  You will see that that information was

3    passed on to the FBI and the FBI actually followed up on it and

4    interviewed the folks that the Cuban Government identified.

5             So, all of that is to say that that the evidence in

6    this case is going to show as to Count 2, the espionage count,

7    that there was not a conspiracy to commit espionage.  That you

8    do have some people who were working for a foreign government,

9    who were trying to defend that country, those people, their own

10    families, from terrorism, and that that information was passed

11    back to the Federal Bureau of Investigation, the government of

12    the United States for the purpose of trying to stop it.  They

13    weren’t trying to injure the United States.  They weren’t

14    trying to benefit Cuba in a military situation.  They weren’t

15    dealing with any classified or secret defense information at

16    all.  Never did.  They dealt with a lot of stuff that dealt

17    with radical exiles.  That is all this case is about; thank

18    you.

19             THE COURT:  Ladies and gentlemen we will take a break

20    at this time.  Do not discuss this case amongst yourselves or

21    anyone else.  Have no contact whatsoever with anyone associated

22    with the trial.  Do not read or listen to anything touching on

23    this matter in any way.  Be back in the juryroom in 15 minutes.

24    You may leave your notebooks on your chairs.  15 minutes.

25             (Thereupon a recess was taken, after which the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1638

 

1    following proceedings were had.)

2             (Jury leaves room.)

3             THE COURT:  Mr. Yagle did call his doctor.  His doctor

4    is going to be out of town on Friday.  I wanted to inform both

5    sides as to that; so we will proceed with ‑‑ proceeding today

6    until 1:45 as scheduled then coming back on Monday.  If we do

7    not complete opening statements, we will continue with opening

8    statements and the beginning of testimony on Monday morning and

9    I will inform the jurors that at the end of the day.

10             We are in recess for 15 minutes.

11             (Thereupon a recess was taken, after which the

12    following proceedings were had.)

13             (Open court.  Jury not present.)

14             THE COURT:  United States of America versus Gerardo

15    Hernandez, et al. Case Number 98‑721.

16             Would counsel state their appearances.

17             (All parties present.)

18             THE COURT:  The interpreters are also present for

19    assistance to the defendants.  The jurors are now back, so

20    let’s proceed.

21             Are you ready Mr. Mendez?

22             MR. MENDEZ:  Yes, ma’am.
23             (Jury present.)

24             THE COURT:  You may proceed, Mr. Mendez.

25             MR. MENDEZ:  May it please the Court, ladies and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1639

 

1    gentlemen of the jury.

2             I know that the mind can only absorb as much as the

3    seat can endure.  I will try to be brief because many of the

4    things I would be talking about have been addressed by my

5    colleagues.

6             I would like to begin by referring to the prosecutor’s

7    opening remarks and he went to great length to discuss as he

8    put it, the who, the how, and the what.  I would like to spend

9    some time discussing the why; because the why is at least as

10    important in this case as the who, the how, the what.  That is

11    because Mr. Campa and the other defendants before you today are

12    charged with among other things having conspired to violate the

13    laws of the United States.  In order to prove a conspiracy, the

14    government must prove Mr. Campa and others acted with specific

15    intent to violate the law.  As the Court will instruct you at

16    the appropriate time, that means they must prove that Mr. Campa

17    and the others acted with a bad purpose to disobey or disregard

18    the law.  So the matter of his intent, the matter of why he did

19    what he did is a matter of great importance to this case and as

20    I said, at least as important as the who and the how and the

21    what, because as you will see, there isn’t a great deal of

22    difference from the point of view of all of us as to the who,

23    the how and the what.

24             To understand the why, to understand why Mr. Campa did

25    what he did, to understand and to help you decide why he acted

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1640

 

1    with the criminal requisite intent, it is necessary that we not

2    only look at what Mr. Campa and the others did here in Miami;

3    but it is necessary we also look at things that are going on

4    outside of Miami, and specifically things going on in Cuba.  It

5    is necessary that we not only look at what Mr. Campa and others

6    are doing in Miami but what other people in Miami are doing as

7    well, because the picture, if you will, of what is going on has

8    to be broadened and instead of a snapshot we need a motion

9    picture view of what is going on.  What I will attempt to do is

10    show you or give you some idea, a preview, if you will, of

11    those facts that will be coming out at trial that hopefully

12    will give you that birdseye view what is going on as well as a

13    motion picture view what is going on.

14             In his opening remarks, the prosecutor, and I believe

15    the words he used were, that you would be hearing about groups

16    that advocated positions on the Government of Cuba.  Involved

17    in this case are groups that advocate a position on Cuba.  That

18    is put very nicely but I suggest it sanitizes what these groups

19    are involved with.  The groups we are talking about, and the

20    positions they advocate on Cuba are groups that are committed

21    to violently overthrowing the Cuban Government and the position

22    that they advocate as to the Government of Cuba is that the

23    Government of Cuba should be physically annihilated, destroyed.

24    The groups you will be hearing about, the groups that form the

25    basis and the focus of everything that Mr. Campa did, are

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1641

 

1    groups that have been committed to carrying out acts of

2    aggression against officials in Cuba, against business plants

3    in Cuba, electrical plants in Cuba and recently have been

4    focused on attacks against tourist establishments.

5             Some of the names you will hear about, some of the

6    names that form the basis of everything that this case is

7    about, are names, some of them are names that you were asked

8    about before you were selected to be jurors.  We talked about

9    Alpha 66, we talk about PUND, we talked about Commandos de

10    Liberacion.  You were asked about the Cuban American National

11    Foundation.  These are names, CID, Cuba Independent Democracia.

12    These are organizations in Miami whose names will be coming up

13    again and again and some of the individuals connected to these

14    organizations, people like Orlando Bosch or Luis Posada

15    Carriles, Alfredo Otero, Jose Francisco Pepe Hernandez, the

16    Brothers Novo Sampol, Gaspar Jimenez Escobedo, Roberto Martin

17    Perez.  These are names of people in Miami, people who are

18    involved either individually or exile groups whose purpose it

19    is and whose life commitment it is to violently overthrow Cuba

20    by any means necessary.

21             So when we talk about the why, we need to keep in mind

22    not only what these people were doing here, that is Mr. Campa

23    and his co‑defendants, but what were some of the other players

24    in this drama doing here as well and what were they doing in

25    Cuba.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1642

 

1             You will see as we keep our focus on the why, during

2    the period of time covered by this indictment, and it covers a

3    lengthy period of time, about five years.  Some of these people

4    and some of these organizations were involved in attempts to

5    destabilize the Cuban Government, to overthrow the Cuban

6    Government, to destroy its economy by way of intimidating

7    people within Cuba and scaring away tourists; and among the

8    main targets of some of these people who are in Miami today,

9    among the main targets were hotel and tourist attractions in

10    Cuba.

11             During the period of time covered by the indictment

12    and during the period of time that Mr. Campa and the others are

13    accused of having been a part of this La Red Avispa, you will

14    hear in 1997 there were these incidents involving explosive

15    devices in Havana alone.  There was an explosion on April 12th,

16    1997 at the Melia Cohiba Hotel in Havana, a luxury five star

17    hotel in Havana that overlooks the bay.  There was an explosion

18    at the discoteque attached to the hotel.  An explosion that

19    ripped through the bathroom, tore the walls apart, caused

20    damage 100 feet away from the center of where the bomb was

21    exploded.

22             A few weeks later, security officers at the same

23    luxury hotel which has about 462 rooms and over a thousand

24    guests can stay in it at a time, another explosive device was

25    discovered on the 15th floor.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1643

 

1             A few weeks later there was an explosive device set

2    off at two hotels, the Capri and the Nacional Hotel, luxury

3    hotels visited mostly by tourists in Cuba, two explosions

4    occurred in those hotels, again causing a great deal of damage.

5             On September 4, just a few months afterwards a series

6    of explosions at the Copacabana Hotel, the Triton Hotel, the

7    Chateau Miramar Hotel and at a popular night club Bodequita del

8    Medio.  These are places in Cuba where tourists go, where

9    locals go, where explosive devices were set, and they were set

10    by people with ties to these extremist, radical, Cuban exiles,

11    members of our community.

12             On the 19th there was the discovery of a explosive

13    device on a microbus, one of the Havana tour buses that take

14    people from the airport to the hotels sort of like a mini van.

15    There was an explosive device found in a bucket of one of the

16    back seats of those buses and a few weeks later there was

17    another explosive device that wasn’t exploded that was

18    discovered at the Jose Marti Airport.  These are some of the

19    explosions that took place and some of the bombs that were

20    discovered in Havana during the period of time we are talking

21    about in this case.

22             These unfortunately, while some of them was discovered

23    and the damage intended was prevented, a number of explosions

24    did occur and cause a great deal of damage and the loss of one

25    life.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1644

 

1             This was going on, but there were other attempts to

2    create even more damage, to cause even more destruction.  There

3    were other terrorist attempts going on at the time as well and

4    you will hear, for example, how in the period of time shortly

5    before these explosions took place, there were attempts by

6    members of the Cuban American National Foundation here who

7    claimed to have formed a part of a secret subgroup, had a more

8    aggressive machine at that time, attempts by some of these

9    people, including a gentleman Alfredo Otero and Pepe Hernandez

10    Calvo, to recruit a man named Perez Alvarado Godoy, to recruit

11    him to go to Cuba and to engage in a number of terrorist

12    activities and one of them was to try to put a bomb in the

13    Cabaret Tropicana Hotel, a night club, dance super club,

14    something like you might find in Las Vegas or Atlantic City,

15    and the plan was, the scheme was to recruit this man who

16    traveled back and forth from Cuba, to place a bomb there and at

17    a time when that place would be filled with tourists and to

18    kill people and the point was to scare people away from Cuba

19    and help to bring down the Castro Government that way.

20             That attempt, that scheme failed because the gentlemen

21    that they were working with that they thought they were

22    conspiring with turned out to be someone cooperating with the

23    Cuban authorities; so that explosion never took place.  That

24    act of terrorism never came to fruition.  On the contrary, when

25    they gave Perez Alvarado Godoy the explosives to take into Cuba

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1645

 

1    and that is done at a meeting in Guatemala where they gave him

2    shampoo bottles that contained the C‑4 explosives, gave them to

3    the Cuban authorities and that attempt is thwarted and some

4    individuals were arrested in connection with that.

5             You will hear about another scheme hatched here in

6    Miami as well involving other men connected to other extremist

7    groups.  Borges Paz connected to an exile group called the X

8    Club, of former political prisoners and you will hear how he

9    tried to recruit another Cuban fellow, Francisco Gomez to go to

10    Cuba and put explosive devices at different places including

11    hotels and also in the focus of that scheme, to put a bomb at

12    the Che Guevera Museum in Santa Clara, not in Havana.

13             Whether you know who Che Guevera was or not or whether

14    you agree or disagree with his views, there is a museum in

15    Santa Clara and a mausoleum where his remains and the remains

16    of his compatriots are kept, it is visited every day by

17    tourists and school children, who might go to a class trip in

18    Philadelphia to Independence Hall where the Liberty Bell is

19    kept.  It is a regularly attended highly popular tourist and

20    local plays attraction in Santa Clara and the idea was to put a

21    bomb there, to destroy it as a symbol of the revolution, to

22    scare tourists away and to kill people.  That attempt also was

23    thwarted because the person they were negotiating with, the

24    person they thought they were working with also turned out to

25    be another person who was cooperating with the Cuban

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1646

 

1    Government.

2             So, we have on the one hand these instances where the

3    bombs are set, the explosions do take place and harm is caused

4    and on the other hand, those instances in which similar

5    attempts to kill people and to destroy property and to

6    overthrow the revolution are thwarted by the involvement of

7    people who are cooperating with the Cuban Government.

8             That is sort of the picture of what is going on here,

9    because what Mr. Campa was doing is exactly, and what his

10    co‑defendants were doing is exactly that.  They were

11    cooperating with the Government of Cuba, with the Ministry of

12    the Interior, the security apparatus, if you will, of Cuba in

13    attempts to find out whether there were any schemes being

14    hatched here in Miami to cause damage there.  That is, by the

15    overwhelming lion’s share of what was going on in this case and

16    you will see that as the evidence comes in.

17             This is one incident in particular I thought would

18    make the point.

19             I talked about the explosion at the discoteque on

20    April 12, 1997.  Here is a picture of the hotel.  You will see

21    these as the case unfolds, but it is not very clear because it

22    was actually a small photograph that has been blown up; no pun

23    intended; but here is a picture of the hotel and you will see

24    it is a high‑rise hotel and the discoteque is right next to the

25    hotel.  That is the discoteque where the explosion occurred on

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1647

 

1    April 27 in the bathroom and tore the place apart.

2             Some photographs of the explosion.  These blowups

3    aren’t very clear, but you can see in this photograph how the

4    wall has been torn apart and how the sink in the bathroom has

5    been blown up.

6             Those are some of the photographs of the explosion

7    that took place on April 12.

8             That is on April 12.  On April 15, just a couple of

9    days later, the people who were charged with finding out in

10    Cuba about these types of things and getting ahold of the

11    people that were responsible for it send this message to one of

12    the co‑defendants here to Luis Medina.  It says during this

13    month of April, there was an explosion in a public restroom in

14    the Cohiba Hotel.  Material damage only.  It would appear

15    Cubans are involved and it names a few people they believe are

16    involved, Fernando Marquez, Rene Cruz and Enrique Ross.  They

17    are all mercenaries and may have links to Camco, another Cuban

18    organization and they tell Allan, we need Jose, another agent

19    that we will hear about, to look for whatever active

20    information he can find on this happening or any intention by

21    Camco to carry out future similar actions.  Details on any and

22    all activities they may be planning and the introduction of

23    explosions.

24             You have the explosion, two days later you have this

25    message from Cuba to Miami.  It refers to the information

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1648

 

1    relating to the bombing at the Cohiba Hotel and everything is

2    happening quickly because this is what this network of spies

3    supposedly is doing.  Then you have just a couple of days

4    later, actually the next day, a message or instructions, if you

5    will from Allan to Jose Tania, two of his subagents, telling

6    them:  “My regards brother.  This is a brief encounter to relay

7    information I have received from headquarters.  During this

8    month of April there was an explosion in the public bathroom of

9    the Cohiba Hotel.  There was only material damage.  Apparently

10    there were Cubans involved, the same people we talked about and

11    it tells him this is what you have to do, this is your task.

12    Search for active information on this act or any attempt for

13    future similar actions.”

14             I bring this out to illustrate the point, that what is

15    going on here, in order to understand what those men are doing,

16    in order to understand what Ruben Campa is doing, you can’t

17    look at it in a vacuum.  You have to step back and look at the

18    matter globally and historically and what will help you

19    understand that is to keep your attention on the activities of

20    local exile groups because that explains what is going on in

21    this case.

22             It is interesting, one of the other interesting

23    aspects of this case and there will be others, you will see;

24    the information that Mr. Campa and Mr. Medina and the others

25    collect based on instructions they received from Cuba, the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1649

 

1    information concerning these terrorist activities that they

2    collect, they send back to Cuba, as you can see, to complete

3    the circle you will see the information going back to Cuba but

4    the information doesn’t stop there.  Not only is Cuba concerned

5    about protecting its own borders, the safety of its own

6    citizens and tourists who travel to Cuba, but Cuba also passes

7    that information on to the United States because the United

8    States has an interest in preventing the involvement of these

9    people in Miami in such terrorist acts.  Even though the

10    terrorism takes place in Cuba, the schemes are being hatched

11    here in Miami and explosive devices are being passed along in

12    Miami and shipped to Cuba. The United States naturally has a

13    great interest in preventing this type of activity and the

14    Cubans send that information to the United States and you will

15    see it happens.

16             Mr. Norris talked about these back door

17    communications.  That is a very excellent way of putting it.

18    You will see during the period of time covered by this

19    indictment, Cuban authorities and U.S. authorities would meet

20    in Cuba, as well as in Washington D.C. and other parts of the

21    United States to exchange this information.  If the Cubans find

22    out Alpha 66 is planning to blow up a hotel and they will leave

23    from Miami to do that, the FBI needs to know that and the

24    Cubans know the FBI needs to know that and that information is

25    exchanged.  Not only are there informal exchanges and meetings,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1650

 

1    you will see there was an entire report prepared by the Cubans,

2    about 60, 70 pages long with photographs, with tape recordings

3    that they put together in Cuba to try to impress upon the U.S.

4    authorities the need for the U.S. authorities to do something

5    about it.  You will see and you will decide for yourself

6    whether based on the evidence at trial whether the U.S.

7    authorities acted aggressively enough or not or whether they

8    followed up on the information properly or not; but the main

9    point I am trying to make, there is an attempt by the Cuban

10    authorities to get this information into the hands of U.S.

11    authorities so the U.S. authorities can enforce their own laws.

12             There is no doubt there is some interest on the part

13    of the U.S. authorities in putting a stop to this.  As a matter

14    of fact some of the people whose names I have given you have at

15    different times in their lives been prosecuted by the U.S.

16    Attorney’s Office and actually sent to jail for some of these

17    activities.  We mentioned Orlando Bosch, a long time Cuban

18    exile leader devoted to violently overthrowing Castro.  He has

19    spent time in jail because he has been prosecuted for a number

20    of violations, neutrality laws and so on.

21             There is definitely a part on the U.S. Government of

22    the information the Cuban agents are gathering and nowhere is

23    that interest or that nexus, connection, better illustrated

24    than in the example of Juan Pablo Roque.  He is not here today.

25    He is in Cuba, presumably or he was in Cuba.  You won’t see him

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1651

 

1    but you were shown a photograph of him earlier and that is this

2    gentleman right here.  This fellow here Roque is accused of

3    being an agent in this case in the indictment but he is not on

4    trial because he was never arrested.

5             Juan Pablo Roque, the information that he was

6    gathering based on instructions he was getting from Cuba about

7    the activities of these exile groups, was of extreme interest

8    also to the U.S. authorities, and you will see over a period of

9    about two years, the U.S. Government, the FBI, we the tax

10    payers, paid this man Juan Pablo Roque about $7,000 over two

11    years in payments for the information he was giving the FBI and

12    some other law enforcement agencies about the activities of

13    these Cuban exile groups.

14             These men are on trial.  Mr. Campa is on trial for

15    passing along, gathering that information and passing it to the

16    Cuban authorities when Juan Pablo Roque who was doing the same

17    thing was getting paid by the FBI for doing that kind of work.

18    Everyone was focused on the activities of these groups who were

19    violating not only the laws of Cuba but the laws of the United

20    States and international nations as we know it.  That is what

21    is going on in this case.

22             Let’s talk a little bit specifically what Ruben Campa

23    did because we all represent different people and you will be

24    told that you have to evaluate the evidence as to each

25    defendant separately and they are not all charged with the same

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1652

 

1    offenses.  In fact you will see when the time comes the

2    groupings are kind of interesting.  Some people are cooperating

3    with the government, people who were originally charged with

4    one kind of offense have either plead guilty or made a deal

5    with the government to testify against the defendants so you

6    don’t have to consider the evidence against them.  That will

7    get a little complicated but it will be sorted out the end.

8             As far as Ruben Campa is concerned, the evidence

9    against him, if you will, is going to be based on the documents

10    taken from his computers, because as you heard, the FBI has

11    been following these people for a long time.  They have known

12    what they have been doing for a long time and why they never

13    arrested them before is something you can decide and I submit

14    it has something to do with the fact that the information that

15    they were gathering was useful to the FBI as well.  But that is

16    something that will be developed at trial.

17             In any event, the evidence you will be asked to

18    consider in connection with Mr. Campa will include documents

19    that were retrieved from his computers as well as testimony of

20    some of the other co‑defendants who plead guilty and  are

21    cooperating with the government.

22             Primarily, I think you will hear from Nilo and Linda

23    Hernandez, a married couple photographed in that chart because

24    they are the ones who worked most closely with Ruben Campa.

25             Ruben Campa, that is not his name.  His real name is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1653

 

1    Fernando Gonzalez.  Mr. Norris already explained the purpose

2    for using an alias.  You will see Ruben Campa and I will call

3    him Ruben Campa because it is the name I have been calling him

4    for as long as I have known him, also uses the name Oscar,

5    Camillo and actually the name Vicky.  These are names he used,

6    names that the others used when they used aliases to protect

7    their identities for obvious reasons.  Chief among them is

8    because of the people they are reporting on, the people they

9    are investigating and the violent tendencies of these people

10    and the fact Ruben and the others have families at home and are

11    concerned for the safety of their families.  Of course it is of

12    no disrespect to the families of the deceased and that is a

13    shame but that is not an issue in this case, so I will keep

14    calling him Mr. Campa because that is the gentleman over there

15    with the mustache.

16             What is he doing?  When you look at all of the reports

17    he receives or he sends and when you examine the testimony of

18    people who will come in and talk about what they did with Ruben

19    Campa, these are the main operations, for lack of a better way

20    of putting it, that he is involved with.  There is Arcoiris,

21    which is rainbow.  You will see that has to do with ‑‑ it is

22    really a task where Mr. Campa, Manolo, who is Nilo and Judith,

23    who is Linda ‑‑ I will try to keep their natural names.  Ruben,

24    Nilo, Linda.  Their task is to make a videotape of a meeting

25    they know is going to take place between Orlando Bosch and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1654

 

1    another suspected Cuban terrorist, Lopez.  They get information

2    from yet another agent these two are meeting to go to plot a

3    violent action against Cuba and Ruben as well as Nilo and Linda

4    are asked or told to go there and film it so the Cuban

5    Government can expose this to the world.  That is one of his

6    operations, if you will.

7             Morena was another operation that Ruben was involved

8    with and I think also Nilo and Linda where it is an attempt to

9    locate this fellow Orlando Bosch, where he lives, who visits

10    him, what does he do because there is information the Cubans

11    have that he is involved in another scheme to blow up buildings

12    or hotels or commit acts of terrorism in Cuba.

13             The Miami River operation, we heard a little bit about

14    that from Mr. Norris.  We have a videotape and you will see it

15    later on at trial.  Cuba receives information there is a boat

16    on the Miami River that is chock ful of explosives and firearms

17    and that boat is going to be shipped to Cuba and those weapons

18    and explosives are going to be planted in Cuba so people within

19    Cuba can use them to help overthrow the Government of Cuba and

20    Nilo and Linda as well as Ruben are involved in going to the

21    Miami River based upon the description they have about this

22    boat, videotaping it and sending that videotape to Cuba so

23    Cubans can decide what to do about that information.

24             You will see one of the things discussed is that it

25    makes sense to go ahead and call the FBI and tell the FBI that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1655

 

1    boat is on the river with all these weapons and before that

2    decision is made, in fact either because the FBI has that

3    information on their own or are monitoring those communications

4    anyway, they actually do go and seize the vessel.  I don’t know

5    whether they arrested anyone but they actually went and seized

6    the vessel that the Cubans were worried about.

7             Operation Neblina.  It sounds a little fancy.  It is a

8    task to go ahead and find out what they can about this other

9    gentleman, Perez, connected with the Cuban American National

10    Foundation and believed to be behind some of the operations in

11    Cuba.  Operation Giron is to penetrate the Cuban American

12    National Foundation to find out if they are behind these

13    attacks in Cuba. Ulyses, the other task that Ruben Campa is

14    involved with has to do with contacting another agent, someone

15    who wants to cooperate with Cuba but hasn’t really worked with

16    the government for a long time and is an attempt to reach out

17    to him to find out if he is interested in doing it and Nilo and

18    Linda are involved in that.  They are also involved in

19    Operation Mellizo, another attempt to identify someone who says

20    he wants to cooperate with the Cuban Government and find out

21    whether they mean it or not because in this spy versus spy

22    world, you don’t know whether someone who says they really want

23    to help or not really does.

24             These two operations, Aeropuerto is the operation

25    dealing with the Boca Chica Naval Station and you heard about

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1656

 

1    that from Mr. Norris and Mr. Blumenfeld will talk a little bit

2    about that and that concerns the work of Lorient at the Boca

3    Chica Naval Air Station and in terms from the point of view of

4    trying to identify whether there is any evidence this U.S.

5    Government is going to be attacking Cuba.  Surco, the Southern

6    Command.  The prosecutor talked about that.  As far as Ruben

7    Campa, the evidence will show he received two newspaper

8    articles, Miami Herald articles dealing with that and that

9    aspect of his work which is basically non‑existent and finally

10    Operation Paraiso which has to do about finding out in the

11    Bahamas, finding out whether there are any signs that local

12    exile groups are using the Bahamas as a staging area for

13    violent attacks against Castro and the Cuban regime, whether

14    there are any signs they have been stashing weapons there and

15    Nilo and Linda are also involved in that.

16             I bring this out because the evidence will be coming

17    in in dribs and drabs.  It will come in from different parts

18    and different pieces but to keep these operations in mind,

19    because these are the only ones that are really going to

20    involve Ruben Campa and the common threat here, all of these

21    really deal with the security of Cuba, the desire on the part

22    of the Cuban Government to protect itself and to protect its

23    citizens and those who visit Cuba from harm and from acts of

24    terrorism that can be traced to these extremist groups in

25    Miami.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1657

 

1             That brings me back full circle to where I began,

2    which is, in order for you to perform your function and a

3    difficult one it is, to decide whether Mr. Campa is innocent or

4    guilty of the charges brought upon him, it is necessary not

5    that you just look at the who, the what, the how; but the why.

6    That you step back and keep an eye not just on what they did

7    but how they did it and how it relates to activities of people

8    in this community as well as things going on in Cuba.  When you

9    step back and you analyze it that way and you absorb all of the

10    evidence in the case, I will ask you later to find that

11    Mr. Campa simply did not act with the criminal intent, with the

12    specific intent to violate the law.  That the government must

13    prove he did in order to return a verdict of guilty against

14    him.

15             Thank you very much for your attention.

16             THE COURT:  Counsel, please approach for a moment.

17             (Side bar.)

18             THE COURT:  Do you think you will be finished by 1:45?

19             MR. BLUMENFELD:  It will be close.

20             THE COURT:  How close is close?  Are we talking about

21    five minutes, 15 minutes?

22             MR. BLUMENFELD:  Maybe more than that.  Five or ten

23    minutes more than that, if it is that.

24             THE COURT:  How much time do you think your opening

25    will be?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1658

 

1             MR. BLUMENFELD:  Probably 20 minutes, maybe 30.

2             I don’t have any props.

3             (Open court.)

4             THE COURT:  Mr. Blumenfeld.

5             MR. BLUMENFELD:  May it please the Court.  Ladies and

6    gentlemen.  My name is Jack Blumenfeld.  Like my colleagues I

7    have been appointed by the Court to represent Antonio Guerrero

8    who will be before you over the next few months.

9             Besides representing Tony, I am towards the end of a

10    long line of lawyers and you are probably thinking what else is

11    there more to say.  Fortunately I am not the last one to talk

12    to you.

13             I will try to avoid some of the repetition because I

14    don’t want to overdue it.  I want to point out to you, there is

15    a fallacy here that we are here on one trial.  This is not one

16    trial.  This is five trials.  There are five separate

17    individuals being tried over the ‑‑ everybody says over the

18    next few weeks.  That is a pipe dream.  Over the next few

19    months.  Over the next few months there are five people being

20    tried and they are being tried together but it is five separate

21    cases and I represent only one of those men, I represents

22    Antonio Guerrero.

23             It is necessary in the course of this statement and

24    during the trial probably to be a little bit repetitious.  I

25    will try not to be, but it is kind of like when you are in a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1659

 

1    case like this and you are towards the end, it is like a

2    football kickoff which you have all seen.  The ball gets kicked

3    off and everybody starts running down field.  Some of the swift

4    ones, which I have never been, some of the swift ones make it

5    down field quick.  They are the ones that immediately engage

6    the ball carrier and try to tackle him.  Some of the others

7    come up a little bit later.  We are there for assistance.

8    Sometimes it is the people that get there first tackle the ball

9    carrier and the rest of them stand around and get their faces

10    on TV.

11             Sometimes it is necessary for those people that come a

12    little bit later to assist in the tackle.  That is similar to

13    what some of us at the end of the line over there do.  There

14    are many instances in which my colleagues will cover the

15    subject completely or it does not apply to Tony Guerrero and I

16    will get up and say thank you for the opportunity to cross

17    examine, Your Honor, but I have no questions.

18             There are sometimes, just like now where I will have

19    to get up and assist as best I can in completing the picture so

20    when you retire and deliberate and return your verdict, you

21    will have a complete picture.

22             Let’s talk about one of the things that will not be

23    repetitious.  I want to talk about Antonio Guerrero or Tony as

24    I speak to him.  Tony is charged with three of the numerous

25    counts in this indictment.  Tony is charged in the first count

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1660

 

1    with a conspiracy, which is an agreement.  An agreement to

2    commit a crime against the United States and/or to defraud the

3    United States.  That is the first one.

4             Tony is charged in the second count with another

5    conspiracy, supposedly to commit espionage against the United

6    States.  It is actually as you have been shown the statute and

7    the indictment.  It is actually that he had an agreement to

8    convey, to locate, convey, transmit a series of information,

9    secret information concerning the national defense of the

10    United States and he is charged in one more count with being an

11    agent and failing to register with Ms. Reno.

12             Those are the only three things he is charged with.

13             Let’s talk about Tony Guerrero and what the evidence

14    will show you about Tony because that hasn’t been discussed. He

15    is not a picture on a chart and is not a code name.  He is a

16    human being who has been sitting next to me for the ten days we

17    have been together, we being all of us.  You will find out that

18    Tony is a father, a son, a brother.  You will find out that he

19    was born on October 16, 1985, about twelve blocks west of here

20    Jackson Memorial Hospital.  He was born here while his dad was

21    playing baseball in the United States.  That shortly after he

22    was born Tony and his family went back to Cuba and that he was

23    raised in Cuba, went to high school in Cuba.  Because he did

24    well, he was sent to and graduated from the University of Kiev

25    in the Ukraine with a degree in civil engineering.  He went

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1661

 

1    back to Cuba for a while.

2             You will find out from the evidence he was married in

3    Cuba.  He has a son who still lives in Cuba.  That marriage

4    didn’t work.  He got divorced and ultimately ended up in Panama

5    in another marriage and another son is there.  Ultimately in

6    about 1991, 1992, Tony came back to the United States.  He

7    ultimately around that same time ended up in Key West, Florida

8    and became a part of the Key West community.  He has a

9    girlfriend in Key West and began to work.  Tony started working

10    in Key West at a place called the Pier House Hotel which some

11    of you may or may not be familiar with.  He worked at the Pier

12    House Hotel as, I think, a kitchen worker.  It wasn’t a

13    pleasant job or high paying.  His English wasn’t that good at

14    the time but he stuck with it and worked hard and was

15    miserable.  At some point Tony went to job services in Key

16    West.  I am not sure if it is still there.  It is a State

17    agency which basically attempts to place people, get jobs for

18    people.  Sort of a State unemployment agency to get jobs for

19    people.

20             One day he met a woman that worked there named Dalilah

21    Borrego, I think, and she knew what he was interested in and

22    knew he was interested in getting a better job than working in

23    the kitchen at the Pier House.  She came up with a job for Tony

24    with I believe a subcontractor, a contractor who had a

25    temporary employment, about a six month job at the Boca Chica

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1662

 

1    Naval Air Station, a Naval Air Station just before you get to

2    Key West, about mile marker 12, more or less.  Tony worked at

3    that job and primarily his job there was digging ditches and

4    doing manual labor and he did it.  You will find from the

5    evidence once that was up there were some temporary jobs and he

6    had a series of temporary jobs at the Naval Air Station working

7    in the public works department as a helper.  A sheet metal

8    helper; various jobs.  I think he ended up as a hazardous waste

9    handler; but these were all temp jobs until he finally made

10    permanent status and continue on until his arrest on September

11    12, I believe it was, 1998.

12             You will find that he had no security clearance, nor

13    did he ever apply for a security clearance because obviously it

14    wasn’t necessary.  He worked as a helper.  He went around with

15    people that were more skilled mechanics and assisted them in

16    any manner that they asked him, and he did a good job and the

17    government is going to put in his personnel file and you will

18    see a lot of accommodations about how hard a worker he was.

19             The government as you can see from their chart calls

20    him Lorient and something else.  Let’s talk about that.  What

21    did or did not this Lorient or Tony do?  Let me make it clear

22    from the beginning, when you have heard all the evidence in

23    this case, I can assure you that there will be more than just a

24    reasonable doubt, but that you will be convinced that Tony

25    Guerrero never did one act or agree to do one act that would

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1663

 

1    compromise the national defense of the United States.  He never

2    agreed to, nor did he during the entire three or four years

3    they were watching what he was doing, did he ever seek secrets

4    about the national defense of the United States.

5             The government talks about this A 1125.  You will see

6    some reports during the course of this trial about building A

7    1125, known as a hot pad.  It is a building Tony worked on

8    along with other workers.  When he was there it was empty.  It

9    was being remodeled.  I think it had been used by the national

10    guard when the national guard had been using Boca Chica.

11             Tony reports that it appears that it may be prepared

12    for top secret activities and gets a task back, see what you

13    could find out.  It pretty much ends there.  In February of

14    1997 the job is completed and he reports back, the job is

15    completed.  Now, he reports.  As Mr. Buckner the prosecutor

16    told you something about a blueprint, just let me correct what

17    the evidence will show.  There was not a blueprint like we know

18    about blueprints, transmitted to anybody about any building at

19    Boca Chica Naval Air Station.  It was a mental blueprint.  It

20    was basically the same thing I would have done when somebody

21    says describe the courtroom.  You walk in the door, some people

22    sit there, the Judge is there.

23             In fact you will see in that same report that Tony

24    tells them, the blueprints for this building are kept secret.

25    I can’t get them.  He said specifically I am not going after

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1664

 

1    secret information.

2             He also says, I will keep my eyes and ears open but I

3    am not asking any inappropriate questions that somebody who was

4    a helper wouldn’t ask.  In fact in the opening the prosecutor

5    says he does to get secret information, he will say that is not

6    what I do; so he never agreed to seek secrets about the U.S.

7    defense and he never, and we don’t have to convince you of

8    everything as Mr. Norris said, but we are going to, because I

9    am going to convince you and discuss with you in my closing

10    argument and as evidence will show you, he never sought to, or

11    agreed to or even had the first inkling of causing harm to the

12    United States, and I say that, ladies and gentlemen, because

13    the prosecutor got up there and mentioned explosives and at the

14    risk of a pun, that is a pretty explosive statement.

15             So let me put that to rest right now about this phone

16    issue about explosives and being trained in explosives.  There

17    is a report that says he had training in something, personal

18    attack and explosives, which you could imagine anybody in an

19    engineering field would know about explosives.  He meant

20    apparently to suggest to you there was evidence that he was

21    planning to blow up something or use those explosives.  I

22    assure you, ladies and gentlemen, that is not what the evidence

23    will show.

24             On September 12, 1998, the FBI woke him and his

25    girlfriend up, searched where he lived and another apartment

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1665

 

1    they had, his locker at Boca Chica, his car, his truck, all but

2    one of which he gave them consent, go search whatever you want

3    to search.  There were no explosives, there never was any

4    explosives or any conversation about doing harm and the only

5    explosives in this case were explosives used in Havana, Cuba by

6    the organizations that you heard testimony about; so put that

7    to rest there was anything that he was going to do to harm

8    anybody or any institution of the United States.

9             Now, he did report, and I think Mr. Buckner in his

10    statement said it was highly detailed.  I think that was the

11    term that was used.  Frankly it is nauseatingly detailed,

12    because there are a lot of reports and there is an incredible

13    amount of detail and you will be sifting through them and

14    reading until your eyes are about to fall out.

15             The biggest volume of those reports, ladies and

16    gentlemen, perhaps 90, 95 percent of the reports that were

17    generated by Tony or Lorient, whatever else they want to call

18    him, were about aircraft at the Naval Air Station, what

19    aircraft were there, what aircraft weren’t there, although

20    frankly sometimes he didn’t know who was there or who wasn’t

21    there.  In fact on one occasion, there was a communique in some

22    manner when they said we know these planes were at Boca Chica

23    and Lorient never reported on them and the reason why anybody

24    could know is that none of this was secret.

25             I don’t know if any of you have ever been to Boca

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1666

 

1    Chica Naval Air Station or seen it is as you have driven down

2    or back up from Key West; you will hear testimony about it, but

3    during the time period this indictment, here is how secret Boca

4    Chica was.  The entire Russian army could have walked in

5    because there are no guards on the front gate.  When you go on

6    to the Boca Chica Naval Air Station at that time, there isn’t a

7    guard like in any other military base.  There were no guards

8    there.  It was open.  You will see that was the policy of the

9    Commander of Boca Chica Naval Air Station.  You will see in a

10    publication the Southernmost Flier which was the official

11    newspaper of the Naval Air Station in Key West, the commander

12    was complaining because the people who were invited to come on

13    were actually starting to use some of the facilities which they

14    weren’t permitted to do.  This was totally open, ladies and

15    gentlemen.  In fact when they talk about some of these planes

16    that the prosecutor said he was reporting on, you will see

17    pictures that if you go down the main drive of Boca Chica Naval

18    Air Station you come to a terminal which is basically a

19    civilian terminal on the base for some planes.  You take a

20    right down the street called Midway and a block or two up is a

21    tarmac where planes are.  I think there is a hangar there where

22    you could count all the planes you want and even though Tony

23    did, you could take pictures in and the way you know you can

24    take pictures, there is a sign there that says photos may be

25    taken at this point.  Right there is a sign that points to a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1667

 

1    chain link fence where it says you can take pictures of hangars

2    and planes.  That is the secret he was reporting and he wasn’t

3    doing that good a job of reporting because on a lot of

4    occasions he didn’t report planes that they knew in Cuba before

5    he knew when he worked there were there and sometimes he was

6    reporting them three or four months after they were there and

7    gone.

8             By the way, I should tell you Boca Chica is not an

9    offensive base, it is not a place where attacks are going to be

10    made.  Boca Chica is a naval air training facility where they

11    trained navy fliers in air to air combat.  They bring in

12    squadrons of other military who pretend to be the bad guys, so

13    to speak.  I don’t know how many of you saw the movie Top Gun

14    but basically the Naval Air Station is the Top Gun of the east

15    without Tom Cruise; but that is what it is and that is all that

16    was being reported.

17             One of the examples of the public nature of what he

18    was reporting, ladies and gentlemen, at one point there was

19    some discussion about missiles going in, to be installed down

20    in Key West possibly at the Naval Air Station and the

21    government was considering putting missles in and the public

22    was in an uproar.  He reported some of that.

23             Let me tell you where the great amount of reporting

24    about the missiles going into Key West came from in much more

25    detail than Tony ever reported.  It was the Miami Herald Key

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1668

 

1    West edition and the Key West Citizen, the local paper.  They

2    reported much more to the public than he did, including a

3    picture of the missiles they were proposing to put in at Key

4    West, which he never did.

5             Now, why?  Why do you report on all this stuff?

6    Because there was a desire, and it is probably beyond a desire

7    as the evidence will show you, for the Cuban Government to know

8    what was going on in the United States and they and everybody

9    that reported gather information in as much detail as possible

10    for it to be sifted out.  Because there was a great deal of

11    concern about the influence on what they referred to as the

12    Cuban right wing or Cuban mafia, but what is perceived to be

13    terrorist organizations posing as legitimate organizations such

14    as the Cuban American National Foundation and some of the

15    others that my colleagues have discussed; there was a fear in

16    Havana about the influence they had on United States policy and

17    United States military policy specially and you will see

18    reports about that why they were interested in Southcom in

19    Miami as opposed to Panama from where it moved; because what is

20    in Miami, the Cuban exile organizations and it is there, and

21    you will see the evidence how concerned they were about the

22    influence on Southcom, on the U.S. military and on the fear

23    that there would be another Bay of Pigs, only this time with

24    military support.

25             Consequently, they tasked somebody to just report and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1669

 

1    confirm what is known publicly about what the military was

2    doing.  Not secrets.  There is not the slightest bit of

3    evidence of him being tasked to do anything to any plane,

4    because if you were a spy, you would hear evidence and you will

5    not, that there would be a report on armaments, ammunition,

6    movement or anything like that.  They gathered information

7    because they wanted to know in advance there would be some type

8    of an attack.

9             Everything that Tony Guerrero did was in defense of

10    the land that his mother, his sister and his son lived in.  He

11    never did one thing that sought to damage or harm the land he

12    was born in, and the evidence will demonstrate that to you

13    ladies and gentlemen in incredible detail.

14             It is getting close to closing time and one of those

15    chairs at least can be picked up and thrown, so I will conclude

16    my remarks.

17             As some of my colleagues have told you, you will hear

18    a lot of evidence.  I ask you again to withhold judgment and

19    wait until you hear everything, both sides, and more

20    importantly, wait until you hear the law that her Honor will

21    give you upon which to decide this case and at the appropriate

22    time when we make our arguments and summarize that evidence,

23    that I suggest will follow what I tell you it would and you

24    will hear that law; I am confident, ladies and gentlemen, you

25    will recognize these charges are unproven and they are wrong

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1670

 

1    and that Tony Guerrero is a patriot in his own land, but he is

2    not here and was not here to damage our land.

3             Thank you.

4             THE COURT:  Ladies and gentlemen, we are going to

5    break at this time.

6             One of your members has a medical conflict for the

7    next two days.  That will give the rest of you a couple of days

8    to get your affairs in order and the next time we will be

9    hearing the case will be Monday morning at 8:45.

10             Do not discuss this case either amongst yourselves or

11    with anyone else.  Have no contact whatsoever with anyone

12    associated with the trial.  Do not read, hear or listen to

13    anything touching on this matter in any way.  If anyone should

14    try to talk to you about this case, you should immediately stop

15    them and tell them you are serving on the jury and you have

16    been ordered by the Court not to discuss the case.

17             Enjoy your long weekend as we begin and I will see you

18    again Monday morning at 8:45.  If you will, make sure the

19    number of your seat is on the first page of your notebook if

20    you are taking notes.  1 through 4, 5 through 9, 10 through 15

21    and give your notebooks to Larry and he will get them back to

22    you Monday morning.

23             Enjoy your long weekend.

24             (Jury leaves room.)

25             THE COURT:  Mr. Horowitz, we have about 30 minutes

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1671

 

1    from you on opening statement?

2             MR. HOROWITZ:  Tops, Judge.

3             THE COURT:  On Monday you will be ready with your

4    first witness?

5             MS. MILLER:  Yes, Your Honor.

6             THE COURT:  Any other issues or matters I need to take

7    up at this time?

8             MS. MILLER:  I just had two.  They are really

9    housekeeping matters.  We spoke about Rule 615 and the defense

10    has invoked the rule on witness sequestration.  Just so it is

11    clear on the record, the government also asks that rule be

12    invoked with regard to defense witnesses.

13             THE COURT: The rule has been invoked.  All witnesses

14    are instructed they are not to discuss their testimony among

15    themselves or anyone else save the attorneys involved.

16             MS. MILLER:  The other matter we wanted to put on the

17    record, since we did have some Batson challenges, we did want

18    to make as a matter of record, this jury which has been

19    tendered by the government does include three African‑American

20    members of the regular panel and one African‑American member in

21    the alternate panel, a percentage of 25 percent.

22             THE COURT:  Any other issues or matters?

23             MR. MENDEZ:  I have a matter, Your Honor.  Depending

24    who the government’s witnesses are, we will have a large amount

25    of documentary material we need to bring into the courtroom or

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1672

 

1    not so much at all.  If we could have an idea who the first few

2    witnesses are, it would help us a lot in avoiding interruptions

3    at trial.

4             THE COURT:  Will you be able to enlighten them?

5             MS. MILLER:  I don’t see a problem letting counsel

6    know who will be coming in the next day.

7             MR. McKENNA:  If we could get early Jencks it might

8    obviate the need for any recesses.  We haven’t received them.

9             MS. MILLER:  On our early witnesses, there will be a

10    little bits of Jencks.  I will try to fax it to counsel over

11    the weekend.

12             THE COURT: Thank you.  Enjoy your weekend.  I will see

13    you Monday morning at 8:45.

14                           o0o

15

16             I certify that the foregoing is a correct

17        transcript from the record of proceedings

18        in the above‑entitled matter.

19

20

21        ______             _______________________

22        Date               Official Court Reporter

23

24

25

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

 

 

1692

 

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

 

UNITED STATES OF AMERICA,             )    Docket No.

)    98‑721‑CR‑LENARD

Plaintiff,            )

)    Miami, Florida

  1. )    December 11, 2000

)

GERARDO HERNANDEZ,                    )

a/k/a MANUEL VIRAMONTEZ, ET AL.,      )

)

Defendants.           )

)

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x

VOLUME 9

 

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

and a Jury

 

 

 

APPEARANCES:

 

For the Government:              CAROLINE HECK MILLER, ESQ.

JOHN KASTRENAKES, ESQ.

DAVID BUCKNER, ESQ.

 

 

 

 

For the defendant Hernandez:     PAUL McKENNA, ESQ.

 

For the defendant Medina, III:   WILLIAM NORRIS, ESQ.

 

For the defendant Gonzalez:      PHILIP HOROWITZ, ESQ.

 

For the defendant Guerrero:      JACK BLUMENFELD, ESQ.

 

 

For the defendant Campa:         JOAQUIN MENDEZ, Esq.

 

 

 

 

 

Court Reporter:                  Richard A. Kaufman, C.M.R.R.

 

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1693

 

 

I N D E X

 

 

Direct  Cross       Red.  Rec.

 

 

WITNESSES FOR THE GOVERNMENT:

 

Opening (continued.)

 

LUIS MEDINA, JR.             1705

ISMAEL CAMPA                 1717

JUAN VIRAMONTEZ              1721

VICENTE M. ROSADO            1727

 

 

WITNESSES FOR THE DEFENDANTS:

 

 

 

 

 

 

 

 

 

EXHIBITS

 

GOVERNMENT                                 IN EVID.

 

Government’s Exhibit 115………………. 1708:5

Government’s Exhibit 111………………. 1709:14

Government’s Exhibit 121 and 121A………. 1719:2

Government’s Exhibit 101………………. 1723:9

Government’s Exhibit 101A……………… 1723:14

Government’s Exhibit 111A……………… 1723:19

Government’s Exhibit D‑5………………. 1732:18

Government’s Exhibit SG‑60A and B,

and SG‑60A1 and B1……………………. 1736:21

Government’s Exhibit 728………………. 1740:12

 

Government’s Exhibit 1A……………….. 1741:6

Government’s Exhibit 728A……………… 1742:5

Government’s Exhibit 729………………. 1742:21

Government’s Exhibit SG 61…………….. 1744:2

Government’s Exhibit SG 61A……………. 1744:7

Government’s Exhibit 732………………. 1752:11

Government’s Exhibit 650………………. 1755:24

Government’s Exhibit 650A……………… 1756:4

Government’s Exhibit D4……………….. 1758:15

Government’s Exhibit D2……………….. 1764:7

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1694

 

 

EXHIBITS (Continuing)

 

Government’s Exhibit D3……………….. 1767:16

Government’s Exhibit DG 129S…………… 1777:3

Government’s Exhibit D1……………….. 1786:1

Government’s Exhibit DA‑101 ET SEQ……… 1794:8

Government’s Exhibit DG 140S…………… 1794:18

Government’s Exhibit SG 5……………… 1797:1

Government’s Exhibit SG 60M and SG 60‑1…. 1800:14

Government’s Exhibit SG 50, SG 50A,

SG 60T, SG 60T‑1……………………… 1801:23

Government’s Exhibit SG 60F, SG 60F1,

SG 60G, SG 60G1, SG 60I and SG 60I1…….. 1806:21

Government’s Exhibit SG 4……………… 1809:18

Government’s Exhibit SG 3……………… 1810:4

Government’s Exhibit DG 102S, 103S,

117S, 118S, 122S, 18S…………………. 1812:22.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1695

 

1             (Open court.  Jury not present.)

2             THE COURT:  United States of America versus Gerardo

3    Hernandez, et al. Case Number 98‑721.

4             Would counsel state their appearances.

5             (All parties present.)

6             THE COURT:  The interpreters are also present for

7    their assistance to the defendant.

8             Are you ready to proceed, Mr. Horowitz?

9             MR. HOROWITZ:  Yes, Your Honor.

10             THE COURT:  All the jurors are here.

11             Bring them in.

12             (Jury present.)

13             THE COURT:  Mr. Horowitz, you may proceed.

14             MR. HOROWITZ:  Ladies and gentlemen of the jury, as

15    you may be aware my name is Phil Horowitz.  I represent Rene

16    Gonzalez.  We are tucked in the corner so I want you to see

17    where he is in relation to everybody else.

18             As you have seen, opening statements are a preview of

19    coming attractions, what we as lawyers expect you to hear and

20    see as we embark on our journey together.  As we hop on board

21    this journey, this portion of the case is intended to be like a

22    travel brochure, a travel guide before you take your trip as to

23    what the evidence will be and what this journey is all about.

24             However, before I begin I want to review a couple of

25    principles we heard last week and now that I have had five

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1696

 

1    extra days to think about it, I think should be reinforced to

2    you.

3             First, regarding the indictment.  I can’t say enough

4    about this document and what it isn’t.  As the Judge instructed

5    you, it is not evidence of guilt.  It contains the names of the

6    defendants and the allegations they are facing.  It informs a

7    person of what they are charged with.  It is kind of like a

8    wedding invitation.  It tells you who, what, when and where;

9    but it is not evidence of marriage.

10             The second principle I want you to be mindful of is

11    the burden of proof.  The burden of proof is right here on the

12    government.  It never shifts.  It is not like a grasshopper.

13    It doesn’t hop over to this side and goes back and forth.  It

14    remains solid at the government’s table.  They must prove their

15    case beyond a reasonable doubt.  This principle doesn’t hold

16    fourth on the 7th floor of the 301 building.  It is in each and

17    every courtroom in the United States including this one and if

18    the government does not carry their burden, you must find each

19    defendant not guilty.

20             The third item I want to talk to you about this

21    morning is evidence.  You are the judges of the facts.  You,

22    individually and collectively, determine what to believe, what

23    to disregard.  How much weight to be given to any specific

24    item.  Whether to accept in whole or in part or disregard

25    entirely; that is your sworn duty regarding the evidence.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1697

 

1             When I was growing up I used to like to watch game

2    shows and one of the ones I liked was Jeopardy, not the Alex

3    Trebeck, but the one years ago with Art Fleming and there was

4    an MC by the name of Don Pardo which you may remember from

5    Saturday Night Live.  I used to watch those shows religiously.

6    There was a portion of the game show that allowed you to mail

7    in to get tickets to be in the studio audience.  I was a

8    teenager.  I mailed it in for tickets.

9             The part of Don Pardo is what you never saw.  He would

10    warm up the audience.  He would tell stories and put the

11    audience at ease, specially for a young teenager that spent all

12    his allowance to get down there to watch the show.

13             To pay homage to Don Pardo and what he did, I want to

14    talk to you about the Jewish Holiday of Passover.  Why this

15    crazy lawyer would like to talk to you about Passover in the

16    middle of Christmas, Hanukah and Kwaanza and this has to do

17    with the opening statement that was made last week and in the

18    back of your minds you are thinking about getting out of here

19    by Valentine’s Day.

20             During the ceremonial reading of the Passover story,

21    children are taught to ask four questions.  This is the four

22    questions that kind of has passed down from generation to

23    generation over the millenniums, the same questions passed down

24    since time immemorial.

25             To paraphrase the first question and how it is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1698

 

1    applicable to this case, why is this case different from all

2    other cases.  The simple answer to that question, it is not

3    different from all other cases.  The legal principles are the

4    same.  Be you Cuban, Haitian, American, anyone.  The indictment

5    is not evidence of guilt.  The government must prove their case

6    beyond a reasonable doubt.  The burden stays right here and you

7    as jurors are judges of the facts.

8             Part of our journey together will take us to some

9    things regarding Rene Gonzalez.  You will hear that Rene

10    Gonzalez is a citizen of the United States.  Some of you may

11    have thought I was going to say Cuba.  I urge you with that

12    simple example not to jump to conclusions.  Witnesses for the

13    government will testify.  The government will call a witness.

14    You will hear the name come out.  The witness will come through

15    the double doors and take the witness stand.  The witness will

16    then testify on what we call direct examination.  The

17    prosecutor will ask that witness questions.  Don’t jump to

18    conclusions and swallow the bait.  Wait for the cross

19    examination.  The probing by the defense uncovering the hidden

20    meanings of some of the testimony.  Once that is done, I ask

21    you to then evaluate the testimony.

22             As stated previously, Rene Gonzalez was born in

23    Chicago 44 years ago.  However, unlike many of the stories we

24    hear in this county, his parents moved young Rene to Cuba in

25    the late 1950s as well as his family.  It was in Cuba where

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1699

 

1    Rene Gonzalez went to school, he was trained to be a pilot, he

2    was married, he had two children.  You will hear a lot of

3    evidence in this case about pilots.  You will hear about radar,

4    you will hear about MUDs, IFR, MFRs, parallels, air traffic

5    controller and ultimately the downing of the Brothers to the

6    Rescue planes.

7             What I want you to do and I want you to be crystal

8    clear on this issue, since I represent a pilot and a flight

9    instructor, which is his chosen profession, I want you to

10    understand what Rene Gonzalez is charged with.  He is charged

11    in Count 1, which is the overall conspiracy to defraud and

12    defeat the U.S. Government function.

13             He is also charged in Count 15 of the indictment,

14    acting as an unauthorized or unregistered foreign agent.  That

15    is it.  He is not charged in Count 2 for the conspiracy to

16    commit espionage.  He is not charged in Count 3 regarding the

17    Brothers to the Rescue planes.

18             While Rene was growing up in Cuba, you may be aware

19    military service is mandatory.  He was conscripted into the

20    military and he is a war veteran of the war in Angola. You will

21    hear when this conflict ended, Rene Gonzalez traded in his

22    uniform to the uniform of a crop duster.  That is what his

23    occupation was in Cuba until 1990 when he came to the United

24    States.  In 1991 as a result of his occupation as a pilot, Rene

25    became acquainted and got hooked up with Brothers to the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1700

 

1    Rescue.  This is when, as Mr. McKenna informed you, that

2    Brothers to the Rescue was in their humanitarian phase and Rene

3    Gonzalez flew humanitarian missions for Brothers to the Rescue.

4    This occurred during 1993 and 1994, the heyday of the rafters.

5    You will hear Rene Gonzalez did not fly with Brothers to the

6    Rescue after September of 1994.

7             The evidence will show why his flights ended in 1994.

8    Obviously Rene Gonzalez through his work with Brothers to the

9    Rescue became known in the exile community and became

10    acquainted with the leadership of various groups.  However, he

11    soon found out that some of these groups had different goals

12    than their stated purpose.  These groups shared a hidden common

13    goal beneath the surface.  Like any other business, raising

14    capital, raising money to finance operations.

15             It is the old story, the more money raised, the better

16    they can do to overthrow the Cuban Government.  After all,

17    these exile groups had the same stated purpose.  Some advocate

18    peaceful change, some advocate violent overthrow.  Some with a

19    war of words, some with a war of missiles, with a war of planes

20    and most importantly with a war of provocation.

21             However, in order to get to that stage there has to be

22    a fund raising activity.  In order to raise money and continue

23    to raise money, progress must be shown.  They need to show

24    action, not lip service.  Like a bomb exploding in a hotel in

25    Havana.  Like an explosive device in a night club.  Like a fly

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1701

 

1    over, an unauthorized entry into Cuban air space.  Dropping

2    leaflets over Havana.  Introducing arms and explosives into the

3    country.  A morbid and vicious cycle began to occur.

4             They would say see what we have done.  See where your

5    money is going, see why we need more.  So we can get a cure as

6    to what ails you, we need the money.

7             One of the most dangerous terrorist groups is a group

8    you heard about during voir dire, PUND.  I hesitate to try to

9    pronounce and that is because of my background.

10             PUND had a small office near the Orange Bowl.  Their

11    message, to kill Castro, overthrow the government.  A true

12    terrorist organization run by nefarious characters.  They

13    sought to foment revolution in Cuba by the use of missiles,

14    guns, rockets, anything necessary to launch an invasion.

15    However, rockets don’t grow on trees.  Grenades, guns and

16    ammunition do not grow on trees.  You can donate money.  It is

17    tough to donate a bazooka.

18             When you have a private militia whose stated purpose

19    is to overthrow a country of many millions of people, it takes

20    a lot of support to overthrow a country.

21             PUND did not stand on the streets with little buckets

22    asking for change.  You will hear they raised their money a

23    little differently.  The money they sought to raise was done

24    via kilos of cocaine being imported into the United States.

25    Here they could make a large amount of money, all cash and not

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1702

 

1    traceable.  The evidence will show you this is where Rene

2    Gonzalez came in.  Rene was recruited by this organization

3    because of his skills as a pilot.  You will hear in December of

4    1995 Rene Gonzalez was approached by the leadership of this

5    organization to fly a load of cocaine in from Honduras into

6    Miami.

7             Rene Gonzalez not knowing what to do, and knowing not

8    to do that, his frustration with the leadership of these groups

9    began to boil over.  He sought out his friend, the evidence

10    will show, Juan Pablo Roque.  Mr. Roque had a relative who was

11    an FBI agent.  He, being Rene, confided in Mr. Roque as to what

12    he had been approached to do.  How appalled he was and what to

13    do next.

14             The evidence will show that Juan Pablo Roque did call

15    the FBI as requested by the Rene Gonzalez, because Mr. Roque

16    was a paid informer himself who had received thousands of

17    dollars from the FBI in the past.  Rene Gonzalez was introduced

18    to an FBI agent.  It was not Special Agent Alonso.  It was

19    Special Agent Alejandro or Alex, Barbeito who you will likely

20    hear from in this case who Rene Gonzalez provided information

21    about drug smuggling.  What you will hear is Rene Gonzalez

22    supplied information to the Federal Bureau of Investigation.

23    Ultimately you will hear that a person from the PUND, Hector

24    Viamonte who was the subject of the information Rene Gonzalez

25    provided, was arrested, indicted, convicted for drug smuggling.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1703

 

1             However, after a while it became apparent that the

2    investigation regarding the drug smuggling had stalled.  It

3    also became apparent to the FBI Rene Gonzalez was a person who

4    operated freely within these exile groups, and that was

5    information that the FBI was seeking.  These were groups that

6    the FBI themselves had infiltrateed to a certain extent and was

7    spying on their activities as well for a number of years.

8             In the opening statement, the government stated that

9    it was Rene Gonzalez who tried to infiltrate the FBI.  That

10    statement I submit to you is ludicrous.  You will hear the

11    government play certain tapes regarding Rene Gonzalez.  You

12    will see that every single contact, and I am not talking about

13    the drug smuggling contact, but regarding his operating freely

14    within these exile groups, was initiated by the FBI.

15             You will hear the meetings that Special Agent Alonso

16    had with Rene Gonzalez on more than 20 occasions, either in

17    person or by phone.

18             Now, Special Agent Alonso wasn’t playing Joe Jones,

19    the undercover and assuming a role.  He presented himself to

20    Rene Gonzalez as Special Agent Al Alonso of the FBI and Rene

21    Gonzalez knew this.

22             The one thing that Special Agent Alonso never told

23    Rene Gonzalez was that these meetings were being recorded and

24    he tried to recruit Rene Gonzalez to do the FBI’s dirty work.

25             One other thing the government mentioned in opening

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1704

 

1    statement was regarding Rene’s wife Olga who you will hear

2    about.  According to the government’s purported version, Rene

3    was directed to use his contacts within the exile organization

4    to reach out to members of Congress to enlist their help to

5    bring his wife into the United States.  This is a perfect

6    illustration why you have to wait to hear both sides.

7             As you are aware there are hundreds of thousands of

8    people in Dade County who are not from this country.  People

9    have relatives in Venezuela, Colombia, Cuba.  Almost all of

10    them want to bring their relatives to the United States.

11    Almost all of them have no way of doing this.  Specially from

12    Cuba where you need an exit visa to leave.  Sometimes it can

13    take years and years and years to get an exit visa.

14             Common practice is to write a letter to your Congress

15    person.  Dear Congressman or Congresswoman so and so.  Please

16    help.  This is the person I have, the loved one I have that

17    wants to get in and can’t get out.  Please help.  Congressional

18    representatives receive hundreds if not thousands of these

19    types of letters a year.  In fact, Congressmen in the districts

20    that service Miami, Dade County, receive even more than the

21    average.

22             In this vast array of correspondence is one piece of

23    paper.  The evidence will show that this one piece of paper

24    became part of a pile.  It was never acted on.

25             On behalf of Rene Gonzalez, I beseech you all to

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1705

 

1    listen to all the evidence.  To wait for the cross examination.

2    To evaluate it in a fair and unbiased way according to the law

3    that will be given to you at the end of the case by Judge

4    Lenard.

5             I want you to keep one thing in mind as you drive down

6    a two lane stretch which hopefully isn’t flooded out between

7    Florida City and Key Largo, there are two passing zones that

8    tell you they are coming up.  The first two words on those

9    signs is “patience pays.”   I ask that you have the patience

10    and I will have one more chance to address you at the end of

11    the case.  At that time I will ask you to find Rene Gonzalez

12    not guilty of Counts 1 and 15 of the indictment.

13             Thank you very much.

14             THE COURT:  Call your first witness.

15             MS. MILLER:  The government calls Luis Medina, Jr.

16             MR. NORRIS:  Judge, we brought this matter up in our

17    opening statement.  We are willing to stipulate to this

18    witness’ testimony.

19             MS. MILLER:  No, Your Honor, we want to call the

20    witness.

21             THE COURT:  State his name again, please.

22             MS. MILLER:  Luis Medina, Jr.

23    Thereupon ‑ ‑

24

25                    LUIS MEDINA, JR.,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1706

 

1    called as a witness by the Government, having been first duly

2    sworn, testified as follows:

3                    DIRECT EXAMINATION

4    BY MS. MILLER:

5    Q.  Please tell us your name?

6    A.  Luis Medina, Jr.

7    Q.  What is your occupation?

8    A.  I am a minister of the gospel, the Gospel Tabernacle.

9    Q.  Where do you live?

10    A.  In Mission, Texas.

11    Q.  Are you married?

12    A.  Yes, I am.

13    Q.  What is your wife’s name?

14    A.  Rachel Guerrero Medina.

15    Q.  How long have you been married?

16    A.  We have been married 44 years.

17    Q.  During those 44 years, Reverend Medina, have you and

18    Mrs. Medina been the parent to any children?

19    A.  Yes, we have.

20    Q.  What children are those?

21    A.  My daughter Lisa and my son Luis Medina III.

22    Q.  Of the two, which is the oldest and the youngest?

23    A.  Lisa is the oldest and my son Luis III is the youngest.

24    Q.  Sir, what were the circumstances of yourself and your wife

25    becoming the parents of Luis Medina III?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1707

 

1    A.  We were notified of a baby who needed to be adopted and my

2    mother worked it out and she informed us so we proceeded with

3    the adoption and we completed it.

4    Q.  Where were you and Mrs. Medina living at the time?

5    A.  In South San Francisco, California.

6    Q.  Where was Luis Medina born?

7    A.  In San Antonio, Texas.

8    Q.  How is it you came to adopt a child living in Texas?

9    A.  My mother who was living in Texas notified us.

10    Q.  How old was Luis Medina when you adopted him?

11    A.  A few days old.

12    Q.  Reverend Medina, I have placed before you what has been

13    marked for identification as Government’s Exhibits 12‑5 and

14    12‑8.  Do you recognize those documents?

15    A.  Yes, I do.

16    Q.  What are those documents?

17    A.  This is a birth certificate record of my son.

18    Q.  Do you recognize the names that appear on that birth

19    certificate?

20    A.  Yes, I do.

21    Q.  Do you see your own name on that birth certificate, for

22    instance?

23    A.  Yes, I do.

24    Q.  Where is your name indicated?

25    A.  As the father.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1708

 

1    Q.  Who is indicated as the mother?

2    A.  My wife, Rachel Medina.

3    Q.  What is the date of birth of the child Luis Medina III?

4    A.  July 9, 1968.

5    Q.  The two forms you have in front of you, Government’s

6    Exhibits 12‑5 and 12‑8, do they differ in any way?

7    A.  Yes, they do.

8    Q.  What is the difference between the two?

9    A.  One is a long form and one is a short form.

10    Q.  Thank you, Reverend, you can put them down for a moment.

11             Reverend Medina, how was it you and Mrs. Medina

12    finally received Luis Medina III following his birth in Texas?

13    A.  My mother brought the baby to us, to California, once the

14    adoption papers were completed.

15    Q.  Is that where you and your family lived from that point on?

16    A.  For a few years, yes, from that point on.

17    Q.  I am showing you what has been marked for identification

18    purposes as Government’s Exhibit 115.  Do you recognize

19    Government’s Exhibits 115?

20    A.  Yes, I do.

21    Q.  What is it?

22    A.  Pictures of my son and one of my daughter.

23    Q.  Do you recognize those as true and accurate pictures of

24    Luis Medina III?

25    A.  Yes, they are.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1709

 

1             MS. MILLER:  The government offers 115 into evidence.

2             THE COURT:  It will be admitted as Government’s

3    Exhibit 115.

4                    (A document was received in

5             evidence as Government’s Exhibit 115.)

6             MS. MILLER:  If I may publish it with the use of the

7    computer device here?

8             THE COURT:  You may.

9    BY MS. MILLER:

10    Q.  The picture I am pointing to here, it is a picture of whom?

11    A.  That is my son Luis Medina III.

12    Q.  The picture on the right?

13    A.  My son with my daughter Lisa.

14    Q.  If I might turn over one of the photographs, who is

15    depicted in that photograph?

16    A.  My son with my daughter Lisa.

17    Q.  Reverend Medina, the child seems robust in this picture.

18    Did he continue in that state of health?

19    A.  No, he did not.  He became ill after about a year that I

20    had him.

21    Q.  What happened to Luis Medina III at that point?

22    A.  He became very ill so we took him to the hospital to find

23    out what was wrong with him.

24    Q.  What occurred at the hospital?

25    A.  They discovered he had a spinal problem and after a few

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1710

 

1    days, he passed away.

2    Q.  I am handing you what has been marked as Government’s

3    Exhibit 111.  Do you recognize it?

4    A.  Yes, I do.

5    Q.  What is Government’s Exhibit 111?

6    A.  This is a death certificate of my son.

7    Q.  Is this a certified copy as far as you can tell from the

8    lower left corner?

9    A.  Yes, it is.

10             MS. MILLER:  The government offers 111 into evidence.

11             THE COURT:  It will be admitted as Government’s

12    Exhibit 111.

13                    (A document was received in

14             evidence as Government’s Exhibit 111.)

15             MS. MILLER:  If I may put up the enlargement?

16             THE COURT:  You may.

17             MS. MILLER:  The enlargement is marked Government’s

18    Exhibit 111‑A.

19    BY MS. MILLER:

20    Q.  When did Luis Medina III die?

21    A.  He passed away on November 6, 1969.

22    Q.  Where is it he died?

23    A.  In the hospital in Burlingame, California.

24    Q.  Is that all indicated on the death certificate?

25    A.  Yes, it is.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1711

 

1    Q.  Does the death certificate also state at items 8 and 9 the

2    name of the parents of Luis Medina III?

3    A.  Yes, it does.

4    Q.  Is that yourself and your wife?

5    A.  It is myself and my wife, yes.

6    Q.  Reverend Medina, did you ever give anybody else the

7    authority to use the name of Luis Medina III after his death?

8    A.  I did not.

9    Q.  If a grown person was using the name of Luis Medina III son

10    of Rachel and Luis Medina, Jr.; would that be your son?

11    A.  It would not.

12    Q.  Is your son present in the courtroom here as you look

13    around the courtroom?

14    A.  He is not.

15             MS. MILLER:  No further questions.

16             THE COURT:  Mr. McKenna, any questions?

17             MR. McKENNA:  No.

18             MR. NORRIS:  No questions.

19             MR. MENDEZ:  No questions.

20             MR. BLUMENFELD:  No questions.

21             MR. HOROWITZ:  No questions.

22             THE COURT:  You may step down, sir.

23             (Witness excused.)

24             THE COURT:  Call your next witness.

25             MR. BUCKNER:  Ismael Campa.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1712

 

1             MR. MENDEZ:  I have a motion that was filed this

2    morning.

3             THE COURT:  Come up.

4             (Side bar.)

5             THE COURT:  I haven’t seen it.

6             MR. MENDEZ:  I am surprised.  Here is an extra copy.

7             THE COURT:  Let me read it before you say anything.

8             (Interruption.)

9             THE COURT:  Go ahead.

10             MR. MENDEZ:  I did hand a copy of that motion to your

11    secretary at 8:30.

12             I object to this testimony under 403 of the Federal

13    Rules of Evidence as well as the Supreme Court’s decision in

14    Old Chief versus United States, 117 Supreme Court 644, 1997.

15             Your Honor, any testimony comparable to the one we

16    just heard a moment ago regarding the child’s birth, his

17    illness, his death, the pain and anguish a parent suffers as a

18    result of that is unduly prejudicial in this case, a needless

19    presentation of cumulative evidence and should be precluded.

20             Mr. Gonzalez offers to stipulate he is not Ruben

21    Campa.  The government has tons of other evidence he is not

22    Ruben Campa.  It will introduce evidence that Mr. Gonzalez

23    followed a so‑called legend in which he was informed how he

24    should portray himself as Luis Campa, driver’s license under

25    the name of Ruben Campa, death certificate of the real Ruben

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1713

 

1    Campa.

2             To continue to pour on additional evidence specially

3    in the form of the testimony of a parent describing the loss of

4    a child is inadmissible under Rule 403.  It is being offered

5    solely for the purpose as you saw a moment ago today to

6    introduce a human quality, a human passion, if you will, that

7    plays no role in this case.  It is not an issue at trial, it is

8    milking the lily.  There is plenty of evidence he is not Ruben

9    Campa.

10             MS. MILLER:  The government respectfully opposes the

11    motion.  The question of the identity of these defendants is

12    critical.  Counsel on Friday for the first time ever stated

13    their clients were anyone other than the way they have been

14    insisting and introducing them for two years in Court.  The way

15    Mr. Campa swore under oath his initial appearance was his name.

16    Even this morning when Mr. Mendez got up to announce

17    appearance, he said he was here on behalf of Mr. Gonzalez, John

18    Doe Number 3 or any other identity.

19             There has been no plea of guilty to counts that charge

20    nothing other than the possession of false identity.

21             The witness who is scheduled to appear is not the

22    father of Ruben Campa.  It is the brother of Ruben Campa.  It

23    is not the case this was only made known to counsel on Friday.

24    The name has been on the witness list since the beginning of

25    voir dire and the defendants made a point of maintaining a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1714

 

1    legend and promulgating these false identities in a very

2    detailed way.  Information as to not only the fact that the

3    real Ruben Campa is deceased but also family information which

4    is at odds with the legend that these defendants promulgated.

5    Whether or not the father of Ruben Campa is alive is something

6    the government is entitled to show, the falsity of the legends.

7             It goes to state of mind which is exactly the thing

8    that counsel say is the only issue remaining in this case.

9             The government submits the United States ought to be

10    able to proceed.

11             I haven’t received the case, but the concept there,

12    they were talking about a felony conviction, something entirely

13    prejudicial and might not come out otherwise.  Here we are

14    talking about an identity which does not carry the same

15    opprobrium as a felony conviction and not something that will

16    be excluded from this trial otherwise.

17             Accordingly, the case cited by defense counsel is not

18    apposite in this instance and the government submits that the

19    motion should be denied.

20             THE COURT:  In regard to the testimony, can you

21    proffer what the testimony is going to be from the brother of

22    Ruben Campa?

23             MR. BUCKNER:  Basically he will testify the date on

24    which Ruben Campa was born, where he was born, who his parents

25    are, the date of his death, location of his death, the fact no

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1715

 

1    one from the family has given permission to use the identity

2    and he will also testify certain parts of the defendant John

3    Doe number 3 legend are incorrect or inaccurate.

4             THE COURT:  May I see the Old Chief case, I haven’t

5    read it in a while.

6             (Interruption.)

7             THE COURT:  I will deny the motion in limine, deny the

8    offer to stipulate.  The government has not agreed to

9    stipulate.  I will deny the motion filed this morning.  The

10    Court cites the Old Chief case, 117 Supreme Court 644, a 1997

11    decision of the United States Supreme Court.

12             The Court finds first of all the proffer by the

13    government does not indicate an overly emotional presentation

14    of this evidence that would lead the jury to make a

15    determination of the defendant’s guilt based upon an emotional

16    charge rather than a factual analysis of the evidence.

17             On that basis the Court does not find there is a

18    violation of Rule 403.

19             In addition, the Old Chief case on its facts is

20    distinguishable as in that case the defendant was charged with

21    being a felon in possession of a firearm and the evidence to be

22    admitted was evidence of a prior conviction where the actual

23    prior conviction involved a firearm.

24             Therefore, Old Chief is distinguishable other than the

25    facts.  There is no violation of 403 in this matter.  This

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1716

 

1    evidence, its probative value, intent is an issue.  The

2    defendants indicated intent is one of the major issues that the

3    facts will turn on and a determination by the jury must be made

4    as to criminal intent and this is the government’s presentation

5    of their proof of criminal intent and the Court does not find

6    it is a violation of Rule 403.

7             MR. MENDEZ:  To be sure, Your Honor, I take it we will

8    not be exposed to any lurid details of little Mr. Campa’s death

9    because that would be beyond the government’s proffer.

10             MR. BUCKNER:  May I speak with government counsel a

11    moment?

12             THE COURT:  Yes.

13             (Interruption.)

14             MR. BUCKNER:  There won’t be.

15             MR. McKENNA:  I move to adopt the motion when it comes

16    time for Mr. Viramontez ‑‑ excuse me, Mr. Hernandez.  There is

17    one aspect of the question.  I would object to the question

18    look around the courtroom and tell us if you see your son.

19    After you establish the person is dead to ask that question,

20    that is bordering on the macabre.  We don’t need that.  It is

21    superfluous and I object to that.

22             MR. BUCKNER:  I kind of object to counsel micro

23    managing my direct.  I can stay away from that question if the

24    Court would like.

25             THE COURT:  It is a good idea.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1717

 

1             (Open court.)

2    Thereupon ‑ ‑

3

4                    ISMAEL CAMPA,

5    called as a witness by the Government, having been first duly

6    sworn, testified as follows:

7                    DIRECT EXAMINATION

8    BY MR. BUCKNER:

9    Q.  State your name?

10    A.  Ismael Campa.

11    Q.  What is your profession?

12    A.  I am a homicide detective with the Austin, Texas Police

13    Department.

14    Q.  For how long?

15    A.  I have been with the department approximately 15, 16 years

16    and five and a half years in homicide.

17    Q.  Were you born in Texas as well?

18    A.  Yes.

19    Q.  Have you grown up in Texas your whole life?

20    A.  Yes.

21    Q.  Where in Texas were you born?

22    A.  In W E S L A C O, Texas.

23    Q.  Growing up, did you have any brothers or sisters?

24    A.  Sister.

25    Q.  Did you ever have a brother?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1718

 

1    A.  I did.

2    Q.  What was his name?

3    A.  His name was Ruben Campa.

4    Q.  When was your brother Ruben Campa born?

5    A.  The 14th of September, 1965.

6    Q.  Where was he born?

7    A.  In Weslaco, Texas, South Texas, also.

8    Q.  What is the name of the County?

9    A.  Hildalgo County.

10    Q.  What are the names of your parents?

11    A.  My father’s name is Merced, M E R C E D Campa.  My mother’s

12    name is Aurelia Macias, maiden name ‑‑

13    Q.  Are those two individuals also the parents of Ruben Campa?

14    A.  That is correct.

15    Q.  Showing you what has been marked for identification as

16    Exhibits 8‑1 and 8‑28‑1 and 8‑2, will you look at those

17    documents?

18    A.  Okay.

19    Q.  What do those documents appear to be?

20    A.  Birth certificates of my brother Ruben Campa.

21    Q.  Does it indicate on there who the parents of Ruben Campa

22    are?

23    A.  Father, Merced Campa and the mother Aurelia Macias.

24    Q.  Those are your parents?

25    A.  Correct.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1719

 

1    Q.  Does it indicate where Ruben Campa was born?

2    A.  Yes, it does.

3    Q.  Is that Hildalgo County, Weslaco, Texas?

4    A.  That is correct.

5    Q.  You said you had a brother.  Is your brother Ruben Campa

6    still alive?

7    A.  He is not.

8    Q.  What happened to your brother?

9    A.  My brother died as an infant on April 21, 1966.

10    Q.  Where did he die?

11    A.  In Fresno County, California.

12    Q.  I am showing you what has been marked as Government’s

13    Exhibit 121, a certified copy.  What is that document?

14    A.  It is a death certificate out of Fresno, California.

15    Q.  For whom is it the death certificate?

16    A.  For my brother, Ruben Campa.

17    Q.  Does it indicate your parents names on there as well?

18    A.  Yes, it does.

19    Q.  As well as the date of your brother’s passing?

20    A.  That is correct.

21             MR. BUCKNER:  At this point the government would move

22    Government’s Exhibit 121 and the blowup 121‑A in evidence.

23             MR. MENDEZ:  No objection.

24             THE COURT:  They will be admitted into evidence as 121

25    and 121‑A.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1720

 

1                    (A document was received in

2             evidence as Government’s Exhibit 121 and 121A.)

3             MR. BUCKNER:  May I publish?

4             THE COURT:  You may.

5    BY MR. BUCKNER:

6    Q.  Is your father still alive?

7    A.  He is.

8    Q.  He did not die in a car accident?

9    A.  He did not.

10    Q.  Is your mother still alive?

11    A.  She is.

12    Q.  Where does she live?

13    A.  McAllen, Texas.

14    Q.  She does not currently live in Mexico?

15    A.  She does not, no, sir.

16    Q.  Let me ask you, did you give anyone permission or the

17    authority to use your brother Ruben Campa’s name in any way?

18    A.  No.

19    Q.  Are you aware if any member of your family gave anybody

20    permission to use your brother’s name or identity in any way?

21    A.  No, sir.

22             MR. BUCKNER:  No further questions, Your Honor.

23             MR. MENDEZ:  I have no questions.

24             MR. McKENNA:  No questions.

25             MR. NORRIS:  No questions.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1721

 

1             MR. HOROWITZ:  No questions, Your Honor.

2             THE COURT:  You may step down.

3             (Witness excused.)

4             THE COURT:  Call your next witness.

5             MS. MILLER:  The government calls Juan Viramontez and

6    we will require an interpreter for this witness.

7    Thereupon ‑ ‑

8

9                    JUAN VIRAMONTEZ,

10    called as a witness by the Government, having been first duly

11    sworn, testified as follows:

12                    DIRECT EXAMINATION

13    BY MS. MILLER:

14    Q.  What is your name?

15    A.  Juan Viramontez.

16    Q.  Where do you live?

17    A.  In Brownsville, Texas.

18    Q.  Do you know or did you know a person named Pedro

19    Viramontez?

20    A.  He is my brother.

21    Q.  Is Pedro Viramontez alive?

22    A.  No, he passed away.

23    Q.  About how long ago was that?

24    A.  About 12 years.

25    Q.  Was Pedro Viramontez married?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1722

 

1    A.  Yes.

2    Q.  What was his wife’s name?

3    A.  Rosalina Hernandez.

4    Q.  Is Rosalina Hernandez alive?

5    A.  No.  She passed away, also.

6    Q.  Did Pedro Viramontez and Rosalina Hernandez Viramontez have

7    children?

8    A.  Yes.

9    Q.  Did they have a child who died at a young age?

10    A.  Yes.

11    Q.  What was that child’s name?

12    A.  Manuel Viramontez.

13    Q.  Where did Pedro Viramontez and Rosalina Hernandez

14    Viramontez live?

15    A.  In Brownsville, Texas.

16    Q.  Did they live in any other state in addition to

17    Brownsville, Texas?

18    A.  In Ohio, California and Brownsville.

19    Q.  What kind of work did Pedro Viramontez do?

20    A.  He was a worker.

21    Q.  Did he work with his hands?

22    A.  Yes.

23    Q.  What kind of education did Pedro Viramontez have?

24    A.  Not very much at all.  He could hardly write out his name.

25    Q.  What about Rosalina Hernandez Viramontez, did she have

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1723

 

1    education?

2    A.  No, she was not, either.  She could write a little bit.

3    Q.  Did Pedro Viramontez and Rosalina Hernandez Viramontez ever

4    live in Puerto Rico?

5    A.  No, never.

6    Q.  Mr. Viramontez, I have put in front of you two pieces of

7    paper.  Could you look, please, at the piece of paper that is

8    marked as Government’s Exhibit 5‑4. Do you recognize that piece

9    of paper?

10    A.  Yes, it is a birth certificate.

11    Q.  For who?

12    A.  Manuel Viramontez.

13    Q.  Does it state the parents’ names on it?

14    A.  Yes.

15    Q.  What are the stated parents’ names?

16    A.  Pedro Viramontez and Rosalina Hernandez.

17    Q.  Does it state where the birth occurred?

18    A.  Cameron County, Texas and Brownsville.

19    Q.  Thank you, Mr. Viramontez.  Could you now look at the other

20    paper in front of you marked for identification as Government’s

21    Exhibit 101.  Do you recognize that paper?

22    A.  Yes.

23    Q.  What is it?

24    A.  It is a death certificate.

25    Q.  Whose death certificate is it?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1724

 

1    A.  Manuel Viramontez.

2    Q.  What place is that death certificate from?

3    A.  Santa Ana, California.

4             MS. MILLER:  The government offers Government’s

5    Exhibit 101 into evidence.

6             THE COURT:  It will be admitted as Government’s

7    Exhibit 101.

8                    (A document was received in

9             evidence as Government’s Exhibit 101.)

10             MS. MILLER:  The government would offer into evidence

11    a blow up of the same Government’s Exhibit 101A.

12             THE COURT:  It is admitted and you may publish.

13                    (A document was received in

14             evidence as Government’s Exhibit 101A.)

15             MS. MILLER:  I would like to introduce 111A.

16             THE COURT:  It will be admitted as Government’s

17    Exhibit 111A.

18                    (A document was received in

19             evidence as Government’s Exhibit 111A.)

20    BY MS. MILLER:

21    Q.  Mr. Viramontez, what were the names of the parents of Pedro

22    Viramontez?

23    A.  Celso Viramontez and Petra Hernandez.

24    Q.  Mr. Viramontez, when did Manuel Viramontez die, according

25    to that death certificate?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1725

 

1    A.  September 1967.

2    Q.  When was Manuel Viramontez born?

3    A.  In January of 1967.

4    Q.  Mr. Viramontez, did your family ever give permission for

5    anyone to use the identity of Manuel Viramontez?

6    A.  No.

7    Q.  If a living person were using the identity of Manuel

8    Viramontez, would that be your nephew Manuel Viramontez?

9    A.  No.

10             MS. MILLER:  No further questions, Your Honor.

11             MR. McKENNA:  No questions.

12             MR. NORRIS:  No questions.

13             MR. MENDEZ:  No questions.

14             MR. BLUMENFELD:  Nothing, Your Honor.

15             MR. HOROWITZ:  No questions.

16             THE COURT:  You may step down, sir.

17             (Witness excused.)

18             THE COURT:  Call your next witness.

19             MS. MILLER:  The government calls Agent Rosado, Your

20    Honor, and there is a matter pending with regard to Agent

21    Rosado.

22             THE COURT:  Come up.

23             (Side bar.)

24             THE COURT:  This is the motion in limine brought by

25    the government?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1726

 

1             MS. MILLER:  Yes.

2             THE COURT:  I don’t believe the defendants have

3    responded.

4             MR. NORRIS:  I filed a motion last week about Rosado’s

5    exhibits before they are published.

6             MS. MILLER:  This is a motion I filed on November 29

7    with regard to the fact that the government intends to elicit

8    that Agent Rosado entered various apartments pursuant to Court

9    order and we wanted to clarify that that would not open the

10    door to inquiring into the substance of the underlying

11    predication for that order.  That is the regular rule that is

12    always followed.  I felt it was prudent to raise it in advance

13    in this case because the orders are FISA orders.  We don’t

14    intend to bring that out, only that he was acting pursuant to a

15    Court order.

16             Our concern was heightened during opening statements

17    because counsel characterized the entries of the FBI into these

18    apartments as “stealing computer secrets,” so it is appropriate

19    for the government to bring out as it ordinarily would in the

20    context of any lawful Court ordered search that was done

21    pursuant to a Federal Court order.

22             MR. MENDEZ:  I would like to ask one question and that

23    is whether any of the witnesses who are going to be testifying

24    as to the conduct of those searches were the affiants on any of

25    the affidavits in support of those affidavits.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1727

 

1             MS. MILLER:  No, we will not have testimony from the

2    affiant or the FISA warrants and I believe you have received

3    Jencks material with regard to Mr. Rosado.

4             THE COURT:  Any objection?

5             MR. NORRIS:  So far as the clarification goes to

6    inquiry into the underlying basis for the FISA authorization.

7    That absence of objection is in compliance with prior orders of

8    the Court.

9             THE COURT:  I have ruled on those in the motion to

10    suppress.

11             MR. MENDEZ:  Just so I don’t need to jump up every

12    time and I have a standing objection to preserve my ‑‑

13             THE COURT:  You can have a standing objection with

14    respect to the position to suppress.

15             THE COURT:  The Court reviewed all of the required

16    affidavits and the searches on the returns and denied the

17    motion to suppress and you may have a continuing objection as

18    to that ruling and your position regarding the motion to

19    suppress.

20             Mr. Norris has indicated there is no objection to ‑‑

21    there will be a stipulation by the defendants not to go into

22    the underlying basis for the searches and the affidavit as

23    well?

24             MR. McKENNA:  I agree with that.

25             MR. MENDEZ:  That is fine.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1728

 

1             MR. HOROWITZ:  That is fine.

2             MR. BLUMENFELD:  Sure.

3             MR. McKENNA:  Can we have a rule that if one defendant

4    makes an objection, unless another defendant specifically opts

5    out we adopt that?

6             THE COURT:  Yes, that is fine.

7             MS. MILLER:  This will not be a quick witness like the

8    other three.  You need to let us know when you want to take the

9    break.

10             THE COURT:  Okay.  I will ask you if it is a good

11    time.

12             For certain witnesses, I expect rather than me having

13    to wait for everybody to say no questions, I don’t know how

14    many witnesses there will be like the identity witnesses, but

15    if you could be ready to respond to move it quickly.

16             MR. McKENNA:  Yes.

17             (Open court.)

18             THE COURT:  Call your next witness.

19             MS. MILLER:  Vicente Rosado.

20    Thereupon ‑ ‑

21

22                    VICENTE M. ROSADO,

23    called as a witness by the Government, having been first duly

24    sworn, testified as follows:

25                    DIRECT EXAMINATION

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1729

 

1    BY MS. MILLER:

2    Q.  Sir, would you tell us your name?

3    A.  Vicente M. Rosado.

4    Q.  What is your occupation?

5    A.  A special agent with the FBI.

6    Q.  For how long?

7    A.  20 and a half years.

8    Q.  What is your education?

9    A.  I have a Spanish education and a sociology anthropology

10    degree.

11    Q.  Prior to being an FBI agent, what was your occupation?

12    A.  I was a deputy sheriff.

13    Q.  What did you do prior to that?

14    A.  I was a school teacher.

15    Q.  What topic?

16    A.  Spanish.

17    Q.  Is Spanish your first language?

18    A.  Yes, ma’am.

19    Q.  Within the FBI, what is your current assignment?

20    A.  I am assigned to a group out of FBI headquarters laboratory

21    called the Computer Analysis Response Team.

22    Q.  Is there a particular subject matter that in recent years

23    also has been among your duty responsibilities?

24    A.  Yes, ma’am.

25    Q.  What squad or subject is that?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1730

 

1    A.  Foreign counter intelligence Cuba, the F‑1 squad or now it

2    is called the N‑1 squad, out of the Miami office.

3    Q.  You told us about something called the Computer Analysis

4    Response Team.  Is that also known by certain abbreviations

5    within the FBI?

6    A.  Yes.

7    Q.  How is it known?

8    A.  CART.

9    Q.  C A R T for those words?

10    A.  Yes.

11    Q.  How long has CART or the computer analysis response team

12    been a program of the FBI?

13    A.  CART has been in existence since approximately the summer

14    of 1992.

15    Q.  What is the function and purpose of CART?

16    A.  To analyze and process, or process and analyze computer

17    evidence.

18    Q.  Does CART also have a focus in the search and seizure of

19    computer evidence?

20    A.  Yes, ma’am.

21    Q.  Have you received training with regard to your collateral

22    duties as a member of CART?

23    A.  Yes, ma’am.

24    Q.  What training ‑‑ could you tell us what some of that

25    training has been, please?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1731

 

1    A.  Search and seizure procedures.  Basically how to download a

2    computer without leaving a trace.  To analyze computer evidence

3    for any evidence.

4    Q.  Are you familiar with an entity known as IACIS?

5    A.  Yes.

6    Q.  What is IACIS?

7    A.  It stands for International Association of Computer

8    Investigator Specialists.

9    Q.  Is that an FBI entity or separate entity?

10    A.  A separate entity.

11    Q.  Have you received any training from IACIS?

12    A.  Yes, I have received two, two week courses on DOS

13    processing.

14    Q.  What tasks do you perform as a CART member?

15    A.  I am responsible for seizing and analyzing computer

16    evidence.

17    Q.  Does that include responsibilities with regard to the

18    copying of data that is reflected in items of computer

19    evidence?

20    A.  Yes, ma’am.

21    Q.  What are some of the techniques that are used for such

22    copying?

23    A.  I could give you a quick rundown.  I would hook up ‑‑

24    Q.  Let me ask it this way, Agent Rosado.

25             Are you familiar with the term “a logical copy”?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1732

 

1    A.  Yes.

2    Q.  What does that mean, “a logical copy”?

3    A.  A logical copy is basically a copy of files found, active

4    files found on a hard drive or on any media.

5    Q.  What do you mean when you say media?

6    A.  Floppy disks, tapes, what have you.

7    Q.  When you refer to media, are you referring to media for

8    storing computer data?

9    A.  Yes.

10    Q.  And these disks are among the means of storing computer

11    data?

12    A.  Yes, ma’am.

13    Q.  To just take us back to the basics, how does a disk store

14    data?  It is not a little drawer, is it?  What do you mean by a

15    disk storing data?

16    A.  As they say, magic.  A little hand comes out and much like

17    a cassette tape, the metal particles are activated by, whether

18    it be magnets, and that is how data is stored.

19    Q.  Is it an electromagnetic process?

20    A.  Yes, ma’am.

21    Q.  I am handing you what has been marked for identification

22    purposes as Government’s Exhibit D‑5.  What is D‑5?

23    A.  D‑5 is a double density floppy diskette.

24    Q.  Did you prepare or mark previously D‑5?

25    A.  Yes, ma’am, I did.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1733

 

1    Q.  Is there any data you put on D‑5?

2    A.  No, ma’am.

3    Q.  Is D‑5 in fact a blank diskette?

4    A.  Yes.

5             MS. MILLER:  The government offers D‑5.

6             THE COURT:  Where on your exhibit list is it?

7             MS. MILLER:  Page 68.

8             THE COURT:  It is not on my 68.

9             MS. MILLER:  The government delivered an updated

10    exhibit list this morning.  Do you have one that appears in the

11    lower right‑hand corner as of 12/10/2000?

12             THE COURT:  I do not.

13             MS. MILLER:  It is in a bound notebook we delivered to

14    chambers this morning.

15             THE COURT:  It will be admitted as Government’s

16    Exhibit D‑5.

17                    (A document was received in

18             evidence as Government’s Exhibit D‑5.)

19    BY MS. MILLER:

20    Q.  Agent, could you hold up that disk and show it to the jury.

21             MS. MILLER:  If I might, I will just put it on the

22    computer viewing device here.

23             THE COURT:  Okay.

24    BY MS. MILLER:

25    Q.  Agent, this is known as a floppy diskette?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1734

 

1    A.  Yes.

2    Q.  Are there different sizes of floppy disks or diskettes?

3    A.  Yes.

4    Q.  What is the size of this one?

5    A.  Three and a half inch.

6    Q.  Is that a standard size in the computer industry in recent

7    years?

8    A.  In recent years, yes, ma’am.

9    Q.  This yellow colored thing, what is that, is that metal,

10    plastic?

11    A.  It is a plastic outer covering.

12    Q.  What is inside that plastic covering?

13    A.  A piece of ‑‑ I will call it mylar.  It has been specially

14    treated with magnetic media.

15    Q.  Is that piece of mylar round, the actual disk?

16    A.  Yes.

17    Q.  Sliding this piece of metal here opening the window, is

18    that the mylar?

19    A.  Yes, ma’am.

20    Q.  Agent, during the summer of 1996, to what squad were you

21    assigned at the FBI?

22    A.  The F‑1 squad.

23    Q.  What were the duties and responsibility of the F‑1 squad?

24    A.  Foreign counter intelligence Cuba.

25    Q.  On the night of September 11, 1996, were you working in

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1735

 

1    your capacity as an agent assigned to the F‑1 squad?

2    A.  Yes, ma’am.

3    Q.  Were you accompanied by any other individuals at that time?

4    A.  Yes, ma’am.

5    Q.  Were they also FBI agents?

6    A.  Yes, ma’am.

7    Q.  Where did you and these FBI agents go the night of

8    September 11, 1996?

9    A.  May I recollect ‑‑

10    Q.  I would like to refresh your recollection with something?

11    A.  Yes.

12    Q.  Is it with regard to the specific address?

13    A.  Yes, ma’am.

14    Q.  I am handing you what has been marked for identification

15    purposes, Exhibit 650.  Does that refresh your recollection

16    where you went the night of September 11, 1996?

17    A.  Yes.

18    Q.  Where were you on that night?

19    A.  18100 Atlantic Boulevard Apartment 305.

20    Q.  What city or town?

21    A.  North Miami Beach.

22    Q.  That is here in Miami, Dade County?

23    A.  Yes, it is.

24    Q.  What did you and the other FBI agents do with regard to

25    that apartment that night?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1736

 

1    A.  Pursuant to a Federal Court order, we entered Apartment

2    Number 305.

3    Q.  How long did you stay in that apartment?

4    A.  Several hours.

5    Q.  Was the apartment empty when you entered?

6    A.  Yes, ma’am.

7    Q.  And you said you stayed several hours.  Did you leave

8    behind ‑‑ withdrawn.

9             Did you intentionally leave behind any signs that you

10    had been in that apartment?

11    A.  No, ma’am.

12    Q.  Had you personally, previously, had this apartment building

13    under your observation?

14    A.  Yes, ma’am.

15    Q.  What did you do during the summer of 1996 with regard to

16    visually observing that apartment building?

17    A.  I caused a rental of an apartment across the street.

18    Q.  What happened with regard to this apartment across the

19    street?

20    A.  Basically it was a base of operations for myself that I was

21    able to watch the comings and going of individuals in the 18100

22    Atlantic Boulevard apartment.

23    Q.  Agent, I have placed before you an item marked as

24    Government’s Exhibit SG‑60A.  Do you recognize that item?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1737

 

1    Q.  What is that item SG‑60A?

2    A.  It is basically a north view of the apartment building at

3    18100 Atlantic Towers ‑‑

4    Q.  Boulevard?

5    A.  I hesitate saying that.  I don’t remember ‑‑ yes, it is

6    Boulevard.

7    Q.  Is that a true and accurate photo of that building?

8    A.  Yes, it is.

9    Q.  What about Government’s Exhibit SG‑60B?

10    A.  Yes, the same building, a side‑view.  It might be a

11    northeast view.

12    Q.  Is that also a true and accurate picture of a side‑view of

13    that building?

14    A.  Yes.

15             MS. MILLER:  The government offers into evidence these

16    two photographs, SG‑60A and B and also in evidence enlargements

17    of those photographs SG‑60A1 and SG‑60B1.

18             THE COURT:  They will be admitted as Government’s

19    Exhibits SG‑60A and SG‑60B and SG 60A1 and SG‑60B1.

20                    (A document was received in

21             evidence as Government’s Exhibit SG‑60A and B,

22             and SG‑60A1 and B1.)

23             THE COURT:  We are going to be taking a break at this

24    time.

25             Do not discuss this case amongst yourselves or anyone

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1738

 

1    else.  Have no contact with anyone whatsoever associated with

2    the trial.  Do not read or listen to anything touching on this

3    matter in any way.  Be back in the jury room in fifteen

4    minutes.

5             (Jury leaves room.)

6             THE COURT:  We will be in recess for 15 minutes.

7             MS. MILLER:  I will have the agent set up his computer

8    because we will be utilizing it for the next 15 minutes.

9             THE COURT:  That is fine.

10             (Thereupon a recess was taken, after which the

11    following proceedings were had.)

12             (Open court.  Jury not present.)

13             THE COURT:  United States of America versus Gerardo

14    Hernandez, et al. Case Number 98‑721.

15             Would counsel state their appearances.

16             (All parties present.)

17             THE COURT:  The interpreters are also present.

18             Mr. Norris, I just received a copy of your motion in

19    limine and the government has now responded to it.  Are you

20    going to file a reply?

21             MR. NORRIS:  I received the reply this morning.  It

22    depends on when the matter comes to issue.

23             THE COURT:  Will it come of issue this morning?

24             MS. MILLER:  We will seek to introduce through

25    Mr. Rosado documents that have the markings Mr. Norris is

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1739

 

1    concerned about.  We will not be publishing them and we can

2    take up the issue of the marking apart from the testimony.

3             THE COURT:  Just let me know if you wish to reply to

4    the response.

5             MR. NORRIS:  My objection doesn’t go to what they have

6    done internally, it goes to what is published to the jury.

7             THE COURT:  I understand.  Let me know by the end of

8    the day.

9             (Jury present.)

10             THE COURT:  You are still under oath, sir.

11    Thereupon ‑‑

12

13                    VICENTE M. ROSADO,

14    called as a witness herein, having been previously duly sworn,

15    was examined and testified further as follows:

16             THE COURT:  You may proceed, Ms. Miller.

17    BY MS. MILLER: (Continuing.)

18    Q.  Agent, what is depicted in the photographs placed on the

19    easel Government’s Exhibit SG‑60A and B?

20    A.  60A shows the front of the apartment building at 18100

21    Atlantic Boulevard and 60B is the side‑view of the apartment

22    building.

23    Q.  Agent, I am taking 60B and placing it on the viewer.  As I

24    move the pointer, can you tell me which apartment was 305?

25    A.  There.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1740

 

1    Q.  Right here where I am pointing?

2    A.  Yes, ma’am.

3             THE COURT:  I am sorry, can you do that again, I had

4    the monitors off.

5             THE WITNESS:  That one right there, Your Honor.

6    BY MS. MILLER:

7    Q.  During the time you were observing this apartment during

8    the summer of 1996, did you observe individuals going into and

9    out of that apartment building?

10    A.  Yes, ma’am.

11    Q.  Do you see in the courtroom here today any particular

12    individual you noted going regularly into and out of that

13    apartment building?

14    A.  Yes, ma’am.

15    Q.  Can you point out any such person?

16    A.  The gentleman in the defendant’s row.

17    Q.  Which gentleman?

18    A.  Gray suit.

19             MS. MILLER:  Could the record reflect the witness has

20    identified the defendant Gerardo Hernandez.

21             THE COURT:  What color shirt?

22             THE WITNESS:  White shirt, ma’am.

23             THE COURT:  It will so reflect.

24             MS. MILLER:  May I have Exhibits 728 and 728A.

25    BY MS. MILLER:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1741

 

1    Q.  Do you recognize Government’s Exhibit 728?

2    A.  Yes, I do.

3    Q.  What is it?

4    A.  A State of Florida printout of driver’s license

5    information.

6    Q.  Is that a certified copy?

7    A.  Yes, ma’am, it is.

8             MS. MILLER:  The government offers 728 in evidence.

9             THE COURT:  It will be admitted as Government’s

10    Exhibit 728.

11                    (A document was received in

12             evidence as Government’s Exhibit 728.)

13    BY MS. MILLER:

14    Q.  The photograph is there, is that the same person you

15    identified?

16    A.  Yes.

17    Q.  What is the address shown for that individual on the

18    driver’s license?

19    A.  18100 Atlantic Boulevard.

20    Q.  Is there an Apartment Number stated on the exhibit?

21    A.  Number 305.

22    Q.  Is that the apartment that you searched that night?

23    A.  Yes, ma’am.

24             MS. MILLER:  The government offers at this point a

25    blank board, Government’s Exhibit 1A with a heading previously

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1742

 

1    seen during opening statement, “La Red Avispa, The Wasp

2    Network.”

3             THE COURT:  It will be admitted as Government’s

4    Exhibit 1A.

5                    (A document was received in

6             evidence as Government’s Exhibit 1A.)

7    BY MS. MILLER:

8    Q.  Agent, is this the same photograph that is depicted in

9    Government’s Exhibit 728?

10    A.  Yes.

11    Q.  Is this the same name as that on the driver’s license?

12    A.  Yes.

13             MS. MILLER:  I would like to affix this picture to the

14    board marked in evidence as 1A.

15             THE COURT:  Are these in evidence?

16             MS. MILLER:  It is part of the same exhibit.

17             THE COURT:  You may proceed.

18    BY MS. MILLER:

19    Q.  Agent, you also have before you 728A.  Can you tell us what

20    that is, please?

21    A.  It appears to be the driver’s license application.

22    Q.  For whom?

23    A.  Manuel Viramontez.

24    Q.  Is that also a certified document of the State of Florida?

25    A.  Yes, ma’am, it is.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1743

 

1             MS. MILLER:  The government offers 728A into evidence.

2             THE COURT:  It will be admitted as Government’s

3    Exhibit 728A.

4                    (A document was received in

5             evidence as Government’s Exhibit 728A.)

6    BY MS. MILLER:

7    Q.  Does that document also show an address for Manuel

8    Viramontez?

9    A.  Yes, 18100 Atlantic Boulevard number 305 Miami Beach.

10    Q.  Agent, I have handed you Government’s Exhibit 729.  Is that

11    also a certified document?

12    A.  Yes, it is.

13    Q.  What type of document is it?

14    A.  It appears to be a vehicle registration or computer

15    printout of a vehicle registration.

16    Q.  For what person?

17    A.  For Manuel Viramontez, 18100 Atlantic Boulevard unit 305.

18             MS. MILLER:  The government offers it in evidence.

19             THE COURT:  It will be admitted as Government’s 729.

20                    (A document was received in

21             evidence as Government’s Exhibit 729.)

22    BY MS. MILLER:

23    Q.  With regard to your actions on the night of September 11,

24    1996, what were your particular duties and responsibilities in

25    the entry that was made?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1744

 

1    A.  My job was to to copy computer evidence as found in the

2    residence.

3    Q.  Was it among your duties and responsibilities to physically

4    seize and remove any items?

5    A.  No.  My duties were to make sure no trace was left that I

6    had been present and that I would just make my copies on site

7    and leave everything as it was.

8    Q.  Agent, could you please describe for us generally the

9    apartment 305 at 18100 Atlantic Boulevard?

10    A.  It is a small one bedroom apartment.  It consists of a

11    bedroom with a closet.  A bathroom, living room, dining room.

12    A kitchen and I think two other closets.

13    Q.  Agent, I am showing you what has been marked for

14    identification as Government’s Exhibit 61.  Do you recognize

15    that?

16    A.  Yes, ma’am.

17    Q.  What is Government’s Exhibit 61?

18    A.  It is a drawing of the basic layout of the apartment.

19    Q.  Does that truly and accurately depict the layout of the

20    apartment as you observed it on September 11, 1996?

21    A.  Yes, it does.

22             MS. MILLER:  The government offers SG 61 into

23    evidence.

24             THE COURT:  It will be admitted as Government’s

25    exhibit SG 61.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1745

 

1                    (A document was received in

2             evidence as Government’s Exhibit SG 61.)

3             MS. MILLER:  The government also offers SG 61A as an

4    enlargement of that exhibit.

5             THE COURT:  It will be admitted as SG 61A.

6                    (A document was received in

7             evidence as Government’s Exhibit SG 61A.)

8    Q.  With regard to your duties and responsibilities for copying

9    computer materials, did you observe any such materials in the

10    apartment that night?

11    A.  Yes, ma’am, I did.

12    Q.  What did you see?

13    A.  I found numerous diskettes throughout the apartment, but

14    mostly on that night in the dining room breakfast area which

15    was a table.

16    Q.  Is that the table I am pointing to with the pointer?

17    A.  No, ma’am, it is the other table.

18    Q.  The more rectangular table?

19    A.  Yes, ma’am.

20    Q.  Did you also observe any diskettes elsewhere in the

21    apartment?

22    A.  Yes, ma’am, in the bedroom at the desk just as you enter

23    the door on the right‑hand side.

24    Q.  Is that where I am pointing?

25    A.  Yes, ma’am.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1746

 

1    Q.  What did you do with regard to computer diskettes that you

2    observed in the apartment that night?

3    A.  I copied them.

4    Q.  How did you do that?

5    A.  I have a machine that gives me a copy of a diskette.

6    Q.  Did you copy these diskettes into a hard drive or onto

7    other diskettes?

8    A.  Other diskettes.

9    Q.  What is the function of this machine with regard to its

10    operation?

11    A.  To provide exact duplicate copies of the original diskette

12    you put in.

13    Q.  Was the machine operating that night?

14    A.  Yes, it was.

15    Q.  Did you check it?

16    A.  Yes, ma’am.

17    Q.  Approximately how many diskettes did you copy that night?

18    A.  Over 200.

19    Q.  As you worked, did you employ some system of marking or

20    labeling the items that you were copying this information onto?

21    A.  Yes, ma’am.  As I reached for one original diskette I would

22    reach for another diskette from my stack, my pile, my stash,

23    and mark it chronologically by numbering it.

24    Q.  Did you do anything with regard to the disks that you were

25    copying onto to prevent them from being altered?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1747

 

1    A.  I am sorry?

2    Q.  Did you do anything with the diskettes you were writing

3    onto to prevent them from being altered or changed after you

4    had written onto them?

5    A.  After I made my copy, I moved a tab on the computer disk

6    which write protects the diskette so no one else could write to

7    it.

8    Q.  When you referred to this tab, can you tell us what you

9    were referring to as I point on the diskette?

10             THE COURT:  Could you identify the diskette that is in

11    evidence?

12             MS. MILLER:  This is D5 in evidence.

13    BY THE WITNESS:

14    A.  Yes, ma’am.  This is the little notch on the computer disk

15    which allows me to either write protect or make it available

16    for writing to.

17    BY MS. MILLER:

18    Q.  This little tab can be slid in one direction or another; is

19    that right, agent?

20    A.  Yes, ma’am.

21    Q.  After you had completed your work, what did you do with the

22    diskettes you had made copies from, the ones that had

23    originally been in the apartment?

24    A.  I insured they went back into their previous locations.

25    Q.  What did you do with the diskettes you had copied onto, the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1748

 

1    ones you had made?

2    A.  I took them with me when I left the apartment building.

3    Q.  What did you do with those diskettes that you copied that

4    night following the search of September 11, 1996?

5    A.  I subsequently copied them and I took the originals and

6    placed them into our evidence.

7    Q.  The copies that you made, were those work copies?

8    A.  Yes, ma’am, they were.

9    Q.  Were those work copies true and accurate reproductions of

10    the files that appeared on the disks that you made that night

11    in the apartment?

12    A.  Yes, ma’am, they were.

13    Q.  Did you and other FBI personnel make subsequent entries to

14    this same apartment, 18100 Atlantic Boulevard Apartment Number

15    305?

16    A.  Yes.

17    Q.  Those subsequent entries that you made, were they made

18    pursuant to any legal authority?

19    A.  Yes, ma’am, a Federal Court order.

20    Q.  Was that a separate order for each entry?

21    A.  Not necessarily.

22    Q.  Were there separate orders for each time period?

23    A.  Yes.

24    Q.  What were the dates of the entries that you made to 18100

25    Atlantic Boulevard Apartment 305 North Miami Beach pursuant to

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1749

 

1    Federal Court orders prior to September 12, 1998?

2    A.  The first entry was September 11, 1996.  The second was

3    December 18, 1996.  The third was February 14, 1997.  The

4    fourth was August 8, 1997.  The fifth was April 26, 1998.

5    Q.  On each of those occasions, did you also copy disks?

6    A.  Yes, ma’am.

7    Q.  Did you use that same machine or the same type of machine

8    that you described to us as applying to September 11, 1996?

9    A.  Yes, ma’am.

10    Q.  Did you follow a similar process of numbering disks as you

11    made them and write protecting them?

12    A.  Yes, ma’am.

13    Q.  Could you tell us, please, in approximate numbers,

14    approximately how many disks did you copy on December 18, 1996?

15    A.  I am blanking out on that.

16    Q.  Is there a document that would help refresh your

17    recollection?

18    A.  Yes, there is a return of service.

19    Q.  Agent, I have handed you a group of documents and I would

20    ask you to take a look through those and tell us if that helps

21    you recall approximately how many disks were copied on December

22    18, 1996?

23    A.  Yes, ma’am, it does.

24    Q.  Approximately how many?

25    A.  68.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1750

 

1    Q.  What about on February 14, 1997, approximately how many

2    disks did you copy?

3    A.  121.

4    Q.  And on August 8, 1997, approximately how many disks did you

5    copy?

6    A.  I am sorry, the date again?

7    Q.  August 8, 1997?

8    A.  31.

9    Q.  And on April 26, 1998, approximately how many disks did you

10    copy?

11    A.  It is not here.

12    Q.  You are looking for a particular statement?

13    A.  RSE.

14    Q.  Is there one labeled RSE there?

15    A.  No, ma’am ‑‑ yes.  87.

16    Q.  Agent, in addition to the apartment at 18100 Atlantic

17    Boulevard, were there other apartments you searched pursuant to

18    Federal Court orders in conjunction with this same group?

19    A.  Yes, ma’am.

20    Q.  On August 5, 1996, where were you?

21    A.  I was at 965 Biarritz Drive in Miami Beach.

22    Q.  Was there a particular apartment that you were at in that

23    building?

24    A.  Apartment 8.

25    Q.  What were you doing ‑‑ withdrawn.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1751

 

1             Were you there with anybody else?

2    A.  Yes, ma’am.

3    Q.  Were these other FBI agents?

4    A.  Yes.

5    Q.  What were you and the other FBI agents doing at Apartment

6    8, 965 Biarritz Drive?

7    A.  Pursuant to a Federal Court order we were conducting a

8    search of that apartment.

9    Q.  Were your duties and responsibilities similar to the ones

10    you had in the searches at 18100 Atlantic Boulevard Apartment

11    305?

12    A.  Yes.

13    Q.  Did you copy disks that day?

14    A.  Yes, ma’am, I did.

15    Q.  You told us of the procedure that you followed at 18100

16    Atlantic Boulevard by copying disks using your machine,

17    labeling the copies you made and write protecting them.  Did

18    you follow that same procedure on August 5, 1996?

19    A.  Yes, ma’am.

20    Q.  With regard to all these six searches you just told us

21    about subsequent to and in addition to the September 11, 1996,

22    did you also bring those disks that you made back to the FBI

23    and make work copies of them?

24    A.  Yes, I did.

25    Q.  Were those work copies true and accurate reproductions of

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1752

 

1    the files that appeared on the disks that you copied in the

2    apartment?

3    A.  Yes, they were.

4    Q.  With regard to the search of August 5, 1996, did you have

5    any particular problem or issue that arose?

6    A.  Yes, ma’am.

7    Q.  What happened?

8    A.  I erred and I copied one diskette on to the subject’s next

9    twelve diskettes that I put into the machine.

10    Q.  Was this the first time you had used the machine on site?

11    A.  Yes, ma’am.

12    Q.  In addition to the two apartments you told us about, was

13    there another apartment that you searched in March of 1997?

14    A.  Yes, ma’am, there was.

15    Q.  What apartment was that?

16    A.  The address for that apartment was 930 North 14th Court

17    Hollywood, Florida, Apartment Number 7.

18    Q.  When did you first search that apartment?

19    A.  March 28, 1997.

20    Q.  Were you acting pursuant to any legal authority when you

21    made that search?

22    A.  Federal Court order.

23    Q.  I am handing you 732 composite.  Do you recognize it?

24    A.  Yes.

25    Q.  What is it?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1753

 

1    A.  It shows the apartment at 930 North 14th Court, the

2    apartment building.

3    Q.  Is that a true and accurate reproduction of what the

4    apartment looked like the night you made that search?

5    A.  Yes, ma’am.

6             MS. MILLER:  The government offers 732 composite into

7    evidence.

8             THE COURT:  It will be admitted as Government’s 732

9    composite.

10                    (A document was received in

11             evidence as Government’s Exhibit 732.).

12             MS. MILLER:  May I publish by placing them on the

13    viewer?

14             THE COURT:  You may.

15    BY MS. MILLER:

16    Q.  How many disks did you retrieve that night?

17    A.  73.

18    Q.  What did you do with regard to the disks that you copied

19    and made in that apartment on March 28, 1997?

20    A.  I write protected them.  I made copies of them and put the

21    originals, my originals, into evidence.

22    Q.  Did you enter that same apartment again on a subsequent

23    date?

24    A.  Yes, ma’am.

25    Q.  What date was that?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1754

 

1    A.  June 17.

2    Q.  What year?

3    A.  1997.

4    Q.  What authority were you acting under when you made that

5    entry?

6    A.  Federal Court order.

7    Q.  What did you retrieve or copy on that occasion?

8    A.  Approximately 100 diskettes.

9    Q.  What did you do with the 100 diskettes that you copied that

10    night?

11    A.  Again, I write protected them and copied them and placed

12    the originals that I removed from the apartment, my copies,

13    into evidence.

14    Q.  Agent, did there come a time when you also searched an

15    apartment at 1776 Polk Street Apartment 3G Hollywood?

16    A.  Yes, ma’am.

17    Q.  What was the first occasion you searched that apartment?

18    A.  January 14, 1998.

19    Q.  Did you do that pursuant to any legal authority?

20    A.  Federal Court order.

21    Q.  Were your duties and responsibilities in that search

22    similar to the ones you previously had executed that you told

23    us about?

24    A.  Yes, ma’am.

25    Q.  Did you retrieve and copy disks in that search?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1755

 

1    A.  Yes, ma’am, I did.

2    Q.  Approximately how many?

3    A.  Over 80.

4    Q.  Did you also search that same apartment on April 14, 1998?

5    A.  Yes, ma’am, I did.

6    Q.  1776 Polk Street Apartment 3G?

7    A.  Yes, ma’am.

8    Q.  Did you copy disks on that occasion?

9    A.  Yes.

10    Q.  Approximately how many?

11    A.  54.

12    Q.  Agent, with regard to all of these searches that you told

13    us about and all of these disks that you copied; with regard to

14    all of those copies, was your machine in working order as you

15    made those copies?

16    A.  Yes, ma’am.

17    Q.  Did you number all the disks that you copied in that

18    apartment that night?

19    A.  Yes.

20    Q.  Did you write protect all those copies you made?

21    A.  Yes.

22    Q.  Did you subsequently make work copies from those disks you

23    made that night that were accurate copies, true and accurate

24    copies of the files that appeared on the disks that you copied

25    in that apartment that night?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1756

 

1    A.  Yes, ma’am.

2    Q.  Did you put the original disks which you took out of the

3    apartment into evidence?

4    A.  Yes, I did.

5    Q.  Agent, you have in front of you Government’s 650, do you

6    not?

7    A.  Yes.

8    Q.  What is Government’s Exhibit 650?

9    A.  It is a chart which shows all entries into the five

10    apartments.

11    Q.  All the entries you just testified to; is that correct?

12    A.  Yes, ma’am.  I am sorry, four apartments.

13    Q.  What sort of data is presented on that chart?

14    A.  It is basically a code name and the address of the

15    location, the date of the entry.

16    Q.  When you say a code name, are you talking about an

17    abbreviation that appears?

18    A.  Yes.

19             MS. MILLER:  The government offers Exhibit 650 into

20    evidence.

21             THE COURT:  It will be admitted as Government’s

22    Exhibit 650.

23                    (A document was received in

24             evidence as Government’s Exhibit 650.)

25             MS. MILLER:  The government also offers 650A, an

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1757

 

1    enlargement of 650.

2             THE COURT:  It will be admitted into evidence as 650A.

3                    (A document was received in

4             evidence as Government’s Exhibit 650A.)

5             MS. MILLER:  With the Court’s permission, I will put

6    650A on the easel.

7             THE COURT:  You may publish

8             (Interruption.)

9    BY MS. MILLER:

10    Q.  There are different colors on this chart?

11    A.  Yes.

12    Q.  Why are there different colors?

13    A.  To show the different subject.

14    Q.  When you say “subject,” are you talking about a place or

15    person?

16    A.  The person.

17    Q.  The green all relate to one address, Biarritz Drive?

18    A.  Yes, ma’am.

19    Q.  And the blue all relate to one address, the Atlantic

20    Boulevard address; is that correct?

21    A.  Yes, ma’am.

22    Q.  The red, however, relates to two different addresses?

23    A.  That is correct.

24    Q.  First we have Apartment 7, 930 North then 1776 Polk Street?

25    A.  Correct.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1758

 

1    Q.  Why is it two addresses have the same address in red?

2    A.  The subject moved from one location to a secondary

3    location.

4    Q.  In addition to the addresses, there appear certain

5    abbreviations for the green item at Biarritz Drive.  The

6    abbreviation is CMA.

7             For the four blue items at Atlantic Boulevard, five

8    blue items, the abbreviations are Start RS and have serial

9    letters, A, B, C, D and E and for the third color, the red

10    items which are at the two apartments in Hollywood, the

11    abbreviations are all beginning RT then serial letters, A, B, C

12    and D; do you see that?

13    A.  Yes, I do.

14    Q.  Could you explain to us what this series of abbreviations

15    means?

16    A.  RS stands for royal sovereign.  The letters A through E

17    represent each entry.

18             RT, rough treatment.  Letters A through D are the

19    entries.

20             CMA is candy man and the only entry we made.

21    Q.  Were those abbreviations for phrases that the FBI was using

22    to identify those different subjects?

23    A.  Yes, ma’am.

24    Q.  Agent, I would like to turn now to the issue of the

25    computer disks and at this point if you could prepare to use

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1759

 

1    your computer with some of the materials, please.

2             MS. MILLER:  Your Honor, I will approach the witness

3    and remove some of the other exhibits.

4             THE COURT:  You may.

5             MS. MILLER:  If I could D5, D4, D2 and D3.

6    Q.  Would you turn your attention to Government’s Exhibit D4?

7    A.  Yes.

8    Q.  What is it?

9    A.  It is a diskette I put together with little rhymes.

10    Q.  You put it together recently?

11    A.  Yes.

12             MS. MILLER:  The government offers D4 into evidence.

13             THE COURT:  It will be admitted as D4.

14                    (A document was received in

15             evidence as Government’s Exhibit D4.)

16    BY MS. MILLER:

17    Q.  If you could use D4 in connection with your laptop computer

18    to show us what a computer diskette is and how it is read using

19    a computer.

20             Have you inserted D4 into the computer?

21    A.  Yes, I have.

22    Q.  What are we seeing on this computer screen?

23    A.  In windows, I have opened up a DOS window.

24    Q.  What is DOS and can you spell that?

25    A.  D O S.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1760

 

1    Q.  What does it stand for?

2    A.  Disk operating system.

3    Q.  What do you mean you are running ‑‑

4    A.  I believe it is disk operating system.

5    Q.  What does that mean, you are running in DOS?

6    A.  It is a very basic operating system.

7    Q.  If you wanted to know what the content of this particular

8    disk was, what would you do?

9    A.  I would start off by typing an order to the computer to

10    show me the directory listing and/or files located therein.

11    Q.  What is that command?

12    A.  DIR.

13    Q.  Would you please do that with Government’s Exhibit D4?

14    A.  I would press enter and I receive information that tells me

15    there are three files located on that disk.

16    Q.  What do you mean by a file?

17    A.  A file is something that holds data.

18    Q.  The files on this particular disk D4, you told us you

19    created them yourself?

20    A.  Yes.

21    Q.  What are the three files shown?

22    A.  Jack, Roses and Mary.

23    Q.  What would you do in order to actually look at the content

24    of one or more of these files?

25    A.  I would simply ask the computer to type it on to the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1761

 

1    screen.

2    Q.  How would you do that?  How do you ask a computer to do

3    that?

4    A.  I would write the word “type,” then the title I want it to

5    show on the screen.

6    Q.  Would you do that with the file Jack?

7    A.  I typed “type Jack” and enter.

8    Q.  What is now displayed on the screen?

9    A.  A little quick rhyme that says Jack be nimble, Jack be

10    quick, Jack jumped over the candlestick.

11    Q.  Is that the content of the file Jack?

12    A.  Yes.

13    Q.  Would you please show us the other two files as well, Roses

14    and Mary and explain to us what you are doing as you access

15    each file?

16    A.  I type “type Roses” and enter and I get the contents of the

17    file.

18    Q.  Another little rhyme that you put in there?

19    A.  Yes, ma’am.

20    Q.  Could you please show us your third poetry epic, Mary.

21    A.  My great literary ‑‑

22    Q.  Is that the third file?

23    A.  Yes.

24    Q.  Are those three files the only files on that disk?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1762

 

1    Q.  How do you know that?

2    A.  Because when I typed the command, that is what it showed

3    me.

4    Q.  Is there also an inquiry that you could run on a disk

5    called “check disk”?

6    A.  Yes, ma’am.

7    Q.  What does check disk do?

8    A.  It tells me how much space is available on the disk and how

9    much ‑‑ how much the disk is formatted for and how much is

10    available on the disk.

11    Q.  What command do you put into the computer in order to

12    execute or run the check disk inquiry?

13    A.  CHKDSK.

14    Q.  Would you do that for Government’s Exhibit D4?

15    A.  I have.

16    Q.  What does the result tell you about the content and the

17    amount of availability that has been used on Government’s

18    Exhibit D4?

19    A.  It tells me that the disk had 730 kilobytes of space

20    available.  I used up three kilobytes and I have 727 kilobytes

21    still available for use.

22    Q.  Those three kilobytes as shown as being used, are those the

23    three kilobytes being used by your three poetry files?

24    A.  Yes.

25    Q.  Would you eject D4 from the computer and show us now what

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1763

 

1    some of these same inquiries would look like with regard to a

2    blank disk.

3             Do you have a blank disk in front of you?

4    A.  Yes, D5.  Government’s Exhibit D5.

5    Q.  Would you run the directory inquiry on D5?

6    A.  Yes.

7    Q.  What is the result of running the inquiry DIR on a blank

8    disk?

9    A.  It is tells me no files are found and I have 730 kilobytes

10    available.

11    Q.  Agent, you can’t click on any files to open them because

12    there are no files shown on that disk; is that correct?

13    A.  That is correct.

14    Q.  Would you please run the check disk inquiry on Government’s

15    Exhibit D5.  What does that check disk inquiry show?

16    A.  It tells me that there are 730 kilobytes available or

17    allowable.  No files are present.

18    Q.  So that inquiry reflects that absolutely nothing has been

19    utilized on that disk; is that correct?

20    A.  That is right.

21    Q.  Not a single byte has been written?

22    A.  That is correct.

23    Q.  Is that consistent with your treatment of that disk?

24    A.  Correct.

25    Q.  Because you have not put anything on that disk?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1764

 

1    A.  That is correct.

2    Q.  Agent, turning your attention for a moment to the disk you

3    gathered and the searches you told us of and the work copies

4    you made, did you examine those work copies?

5    A.  Yes, I did.

6    Q.  On first examination, what did they appear to be?

7    A.  First examination some appeared to be empty, some appeared

8    to have regular files.

9    Q.  What was the proportion of the ones that seemed to be empty

10    versus the ones that seemed to have regular files?  Was there

11    more that seemed to be empty or more that had regular files on

12    them?

13    A.  I am trying to think.  I would say a large majority

14    appeared to be empty, blank.

15    Q.  You have in front of you an item which has been marked for

16    identification as Government’s Exhibit D2, did you not?

17    A.  Yes.

18    Q.  What is D2?

19    A.  Disk number 24 from my second entry into the royal

20    sovereign apartment.

21    Q.  When you say that is disk number 24, is that the original

22    disk?

23    A.  No, ma’am, it is a copy.

24    Q.  And D2, does that have an exact copy of the file material

25    that was on the disk that you made the night of December 18,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1765

 

1    1996 in that apartment?

2    A.  Yes, ma’am.

3             MS. MILLER:  The government offers D2 into evidence.

4             THE COURT:  It will be admitted as Government’s

5    Exhibit D2.

6                    (A document was received in

7             evidence as Government’s Exhibit D2.)

8    BY MS. MILLER:

9    Q.  Was D2 when you looked at it a disk that appeared to be

10    blank?

11    A.  Yes, ma’am.

12    Q.  Can you show us what you mean by inserting D2 into your

13    laptop computer?

14    A.  Yes.  I would first run the DIR command.

15    Q.  Is that what you are doing right now?

16    A.  That is what I am doing right now.  It tells me it has 730

17    kilobytes.  It has been formatted for 730 kilobytes.  It has

18    730 kilobytes available.  No files found therein.

19    Q.  That is the DIR command?

20    A.  Yes.

21    Q.  What about the result of a check disk inquiry, can you show

22    us what check disk turns up?

23    A.  I am sorry.  I was looking at the previous example.

24    Q.  The one you just told us about?

25    A.  DIR basically tells me there are no files found within and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1766

 

1    also 730 kilobytes are available.

2    Q.  That is the result of a DIR?

3    A.  Yes.

4    Q.  What is the result of a check disk inquiry?

5    A.  I will type that in and it shows 730 kilobytes are

6    available on the disk.  No files found.

7    Q.  Does it also show how many kilobytes ‑‑ withdrawn.

8             That shows two numbers, one for disk space available

9    and what the disk was formatted for?

10    A.  Yes.

11    Q.  Are those files that identical?

12    A.  Yes.

13    Q.  What does it show?

14    A.  There is no information on that disk.

15    Q.  Were you able eventually to observe files that are actually

16    on that disk, Government’s Exhibit D2?

17    A.  I was able to find data on that disk.

18    Q.  You told us that among the disks you looked at, there were

19    some that appeared to have content, is that correct?

20    A.  Yes.

21    Q.  Did these include disks with program files?

22    A.  Yes, ma’am.

23    Q.  What was the function of some of these program files with

24    regard to some of these supposedly blank files that you were

25    finding?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1767

 

1    A.  Could you repeat the question.

2    Q.  What was the function of some of these program files which

3    you observed on some disks in relationship to these other disks

4    that you told us about that appeared to be blank?

5    A.  Some of the files found acted on the apparent blank disk in

6    order to decrypt or bring forth data.

7    Q.  These program files that performed that function, did they

8    declare themselves somehow to be decryption programs or

9    breakout programs; were they labeled in that way?

10    A.  No, ma’am.

11    Q.  What did they appear to be?

12    A.  Common every day files.

13    Q.  Commercial programs?

14    A.  Yes.

15    Q.  Is every file an executable program?

16    A.  No.

17    Q.  What is an executable program?

18    A.  It is a program that runs and shows ‑‑ it tells the

19    computer to do something.

20    Q.  And there are other files that do not direct the computer

21    to do something; is that correct?

22    A.  Correct.

23    Q.  They just contain data themselves?

24    A.  Correct.

25    Q.  Could you turn your attention to Government’s Exhibit D3.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1768

 

1    A.  Yes.

2    Q.  What is D3?

3    A.  Government Exhibit D3 is a disk numbered 105.  It is a copy

4    of a disk numbered 105 from the first entry at the 18100

5    Atlantic Boulevard address, Apartment 305.

6    A.  Following the naming convention that the FBI was using, was

7    that disk known as RSA 105.

8    A.  Yes, ma’am, RSA 105.

9    Q.  This D3, is this one that contains some of these program

10    files you were telling us about?

11    A.  Yes, ma’am.

12             MS. MILLER:  The government offers D3 into evidence.

13             THE COURT:  It will be admitted as Government’s

14    Exhibit D3.

15                    (A document was received in

16             evidence as Government’s Exhibit D3.)

17    BY MS. MILLER:

18    Q.  Would you please remove Government’s D2 from your computer

19    and put in Government’s Exhibit D3.  Would you please run the

20    directory inquiry that is implemented by using the DIR command.

21    What is the result of running the DIR command on Government’s

22    Exhibit D3?

23    A.  It shows 17 files are contained therein.

24    Q.  What types of files are these?

25    A.  Some are operating system files and some are DOS files and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1769

 

1    some are ‑‑ one is an executable MS which stands for Micro

2    Star.  It is a word processing program.

3    Q.  Are you familiar with that name Micro Star?

4    A.  Yes.

5    Q.  Is that a brand name?

6    A.  Yes.

7    Q.  From some years back?

8    A.  Many years back.

9    Q.  What is a word processing program?

10    A.  It is a program that allows you to write documents.  Most

11    commonly used right now are Word Perfect and Microsoft Word.

12    Q.  It is basically a typing type of program, although it

13    contains some features you can’t get out of a typewriter?

14    A.  Yes.

15    Q.  This MS program that appears in the file also had a suffix

16    that is attached at the end of it?

17    A.  Yes.

18    Q.  What is the suffix?

19    A.  Dot EXE.

20    Q.  What does that mean?

21    A.  It is executable.

22    Q.  What is executable?

23    A.  It is a program that runs and tells a computer we are going

24    to do something.

25    Q.  Is there also a file on there MS.TXT?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1770

 

1    A.  Yes.

2    Q.  What does the suffix TXT indicate?

3    A.  It is a text document.

4    Q.  Is it somehow associated with the MS program?

5    A.  Yes, I would imagine.  Yes.

6    Q.  Typically what is a text file that is associated with an

7    executable program?

8    A.  Usually it is an instruction manual or some type of

9    instructions that follow, that help the user look at the

10    program.

11    Q.  Could you please open MS.TXT and tell us if that is what it

12    shows?

13    A.  Basically it tells you some instructions.

14    Q.  Agent, would you please exit MS.TXT and go back to the file

15    directory.  Would you please open the MS.EXE program?

16    A.  Okay.

17    Q.  Could you tell us what we are seeing on these computer

18    monitors?

19    A.  You are basically seeing the working screen where you are

20    allowed to begin typing your life’s history away.

21    Q.  This is where you would compose the word processing

22    documents?

23    A.  Yes.

24    Q.  Once a document was composed, what would you ordinarily do

25    if you wanted to preserve that document?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1771

 

1    A.  You would save it to a disk.

2    Q.  Or to a drive?

3    A.  Or to a drive.

4    Q.  You would somehow save it to preserve it?

5    A.  Yes.

6    Q.  When you saved it, would it receive a name?

7    A.  You would give it a name.

8    Q.  Would that name be a file?

9    A.  Yes.

10    Q.  Under a word processing program, are you able to open

11    existing files?

12    A.  Yes, ma’am.

13    Q.  Under this program, MS.EXE, is there a menu bar that allows

14    you to do things such as open existing files?

15    A.  Yes, ma’am.

16    Q.  Could you show us on the screen how you would go about

17    finding ‑‑

18    A.  The top of the screen says F, so for menu, you hit F 10.

19    It gives you menus.  You hit enter on file and it allows you to

20    open, close, save, write to, print, get info or quit.

21    Q.  Agent, were there any apparent word processing files that

22    had already been created on Government’s Exhibit D3 as you

23    first acquired it?

24    A.  Other than the text file, no, ma’am.

25    Q.  So if you were to use the open command, ordinarily you

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1772

 

1    would not expect putting in a name would access anything?

2    A.  Correct.

3    Q.  Would you please go to the open command and would you

4    please type in the word “afinacion” or enter the file name for

5    that.

6             Have you executed that command?

7    A.  Yes.  It asks me to insert a diskette.

8    Q.  Is that what you would expect to see when you execute ‑‑

9    withdrawn.

10             Is that what you would expect to see when you open a

11    word processing file?

12    A.  No, ma’am.

13    Q.  Ordinarily what would you expect to see when you open a

14    word processing file?

15    A.  My text or it would tell me that it doesn’t exist.

16    Q.  However, the instruction you are getting on the screen says

17    what, instead?

18    A.  Insert a diskette.

19    Q.  Does it say insert a diskette ‑‑

20    A.  And type enter to continue.

21    Q.  Would you please follow that instruction and insert as a

22    diskette Government Exhibit D3, the diskette you acquired at

23    18100 Atlantic Boulevard?

24    A.  This is D2.

25    Q.  Excuse me, D2.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1773

 

1             Is there anything happening there?

2    A.  The computer is reading.

3    Q.  Can you hear anything where you are sitting?

4    A.  Yes.

5    Q.  What can you hear?

6    A.  The disk drive going through its motions of reading, and

7    reading.

8             (Interruption.)

9    BY MS. MILLER:

10    Q.  Has anything appeared on the screen?

11    A.  Yes, text.

12    Q.  What is this text, is it in a language you recognize?

13    A.  Yes, ma’am, it is in Spanish.

14    Q.  You read Spanish?

15    A.  Yes, ma’am.

16    Q.  How long does this text go on?  Can you show us how you

17    would further access more of this text?

18    A.  I would move the arrow down or page down and it goes

19    through, in this particular case three different documents.

20    Q.  The text goes on for what would print out to be several

21    pages; is that correct?

22    A.  Yes, ma’am.

23    Q.  You have previously reviewed this text, have you not?

24    A.  Yes.

25    Q.  You can tell us generally what is the subject matter of

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1774

 

1    this Spanish text?

2    A.  It is a report reference Brothers to the Rescue and

3    flotilla activities.

4    Q.  Does it appear to have some sort of heading and saying from

5    somebody and to somebody?

6    A.  Yes.  It is from Iselin to Giro.

7    Q.  Does the report have a date?

8    A.  18 of October 1995.

9    Q.  Is there more than one of these reports contained in that

10    text that you were scrolling through?

11    A.  Yes, three reports.

12    Q.  Are they all dated approximately the same time?

13    A.  One is dated October 15.  The other was the 18th of October

14    and the third is the 19th of October.  All 1995.

15    Q.  You have told us it is generally about Brothers to the

16    Rescue and Democracy Movement.  Does it appear to be an account

17    of meetings and results of meetings?

18    A.  Yes.

19    Q.  When you went through this disk and other disks like it,

20    what did you do with regard to the content you were able to

21    show up on a screen in order to make any preservation of it?

22    A.  I either saved it to disk or printed it out.

23    Q.  What do you mean when you say save it to a disk?

24    A.  I was able to save it to another diskette.

25    Q.  When you saved it to the diskette, was it able to be read

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1775

 

1    immediately without using the MS.EXE apparent program?

2    A.  Yes, ma’am.

3    Q.  What do you mean when you say you would cause it to be

4    printed out?

5    A.  I would print it out for the squad to review.

6    Q.  The date you told us on these documents was October of

7    1995.  Is that when you were reading them?

8    A.  No.

9    Q.  The actual date of this Government’s Exhibit 2 ‑‑ D2 was a

10    copy of RSB 24, was it not?

11    A.  Yes, ma’am.

12    Q.  RSB was not acquired until December 18 of 1996; is that

13    true, agent?

14    A.  That is correct.

15    Q.  The disk you needed in order to read that disk was an RSA

16    disk, was it not, RSA 105?

17    A.  Yes.

18    Q.  That is Government’s Exhibit D3?

19    A.  Yes.

20    Q.  RSA you did not acquire until September 11, 1996?

21    A.  That is correct.

22    Q.  Were you able to read any of these documents prior to the

23    summer of 1996?

24    A.  No, ma’am.

25    Q.  Agent, I placed in front of you three three‑ring binders ‑‑

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1776

 

1    I don’t know if you were planning on taking a second break?

2             THE COURT:  Is this a good place?

3             MS. MILLER:  This would be a good place.

4             THE COURT:  Do not discuss this case amongst

5    yourselves or anyone else.  Have no contact with anyone

6    whatsoever associated with the trial.  Do not read or listen to

7    anything touching on this matter in any way.  Be back in the

8    jury room in fifteen minutes.

9             (Thereupon a recess was taken, after which the

10    following proceedings were had.)

11             (Open court.  Jury not present.)

12             THE COURT:  United States of America versus Gerardo

13    Hernandez, et al. Case Number 98‑721.

14             Would counsel state their appearances.

15             (All parties present.)

16             THE COURT:  All defendants are present using the aid

17    of the interpreters if needed.

18             Are we ready to proceed?

19             MS. MILLER:  Yes.

20             THE COURT:  Bring the jury in, please.

21             (Jury present.)

22             THE COURT:  You are still under oath, sir.

23    Thereupon ‑‑

24

25                    VICENTE M. ROSADO,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1777

 

1    called as a witness herein, having been previously duly sworn,

2    was examined and testified further as follows:

3             THE COURT:  You may proceed, Ms. Miller.

4    BY MS. MILLER:  (Continuing.)

5    Q.  Agent, in front of you are three volumes.  Would you turn

6    to the one that has the tab DG 129.

7    A.  I have it.

8    Q.  On the top of that page is there a little parenthesis “S”?

9    A.  Yes.

10    Q.  DG 129 goes on for several pages, does it not?

11    A.  Yes.

12    Q.  Do you recognize those pages and the text that appears in

13    DG 129?

14    A.  Yes, I do.  It is the exact same as what I have on the

15    screen.

16    Q.  What is the relationship between DG 129 and Government’s

17    Exhibit D2 which is currently in your computer and showing on

18    the screen?

19    A.  DG 129 is a printout, an exact copy of the document found

20    within D2.

21             MS. MILLER:  The government offers DG 129(S) into

22    evidence.

23             MR. NORRIS:  Subject to the matter that is pending.

24             THE COURT:  It will be admitted as Government’s

25    Exhibit DG 129S subject to the Court’s ruling on Mr. Norris’

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1778

 

1    motion.

2                    (A document was received in

3             evidence as Government’s Exhibit DG 129S.)

4    BY MS. MILLER:

5    Q.  Are there some lines that appear at the top and bottom of

6    that page?

7    A.  Yes.

8    Q.  Where does the text of DG 129 appear?

9    A.  It begins in between the lines.

10    Q.  The material above and below the line is administrative

11    type material?

12    A.  Yes, it is.

13    Q.  Focusing just on the material that appears above the line,

14    what is it that appears above the line?

15    A.  What appears is an identifier for the Court.  D meaning

16    disk, G, Giro, 129 is the exhibit number then (S) for Spanish.

17    RSB, depicting the royal sovereign B entry, the second entry.

18    Then RSB 24 is the disk that it came from, or its file name,

19    basically.

20    Q.  All right, agent, you could put the notebook down, we are

21    finished with that for the moment.  Why don’t you set them

22    aside so they are not blocking.

23             A few moments ago I asked you to type in a word and

24    the word was “afinacion”?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1779

 

1    Q.  Does that word appear someplace in the disk that is

2    Government Exhibit D3?

3    A.  Yes, it does.

4    Q.  How would you characterize that word?  What is the function

5    of that word?

6    A.  That word is a password or a key to allow the program to

7    operate in a manner other than its intended purpose, or its

8    written purpose.

9    Q.  When you say for the program to operate in a manner of its

10    intended purpose, you are talking about a word processing

11    purpose?

12    A.  Yes, ma’am.

13    Q.  Is the password ‑‑

14    A.  Above and beyond what its intended purpose was.

15    Q.  You have told us that MS is a commercial word processing

16    program?

17    A.  Yes.

18    Q.  What you have just demonstrated for us, is that word

19    processing?

20    A.  It is actually a decryption process.

21    Q.  Is that password needed in order to start the decryption

22    process?  The password, afinacion, does it is actually appear

23    someplace in disk D3?

24    A.  Yes, ma’am.

25    Q.  Were you able to see it as you looked through D3?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1780

 

1    A.  Yes, ma’am.

2    Q.  Could you please explain to us where in Government’s

3    Exhibit D3 you were able to see the word “afinacion”?

4    A.  It is found in a certain sector inside the disk.

5    Q.  Can you show us, please, what you are referring to by using

6    disk D3 and showing us where you found the word “afinacion” and

7    could you remove the data disk, D2 and insert D3, the

8    encryption disk?

9    A.  Yes, ma’am.

10    Q.  You have left the word processing program?

11    A.  Yes.

12    Q.  Where have you gone to in the disk?

13    A.  I have gone into just an A prompt where it is ready to read

14    the disk, but I need to go into my hard drive and pull up a

15    program which is called Norton Utilities Disk Editor and it

16    allows me to look at the disk specifically.

17    Q.  What is a utility program?

18    A.  It gives me access to portions of the drive not normally

19    available to individuals.

20    Q.  But this program, Norton Utilities, it is a widely

21    available commercial program?

22    A.  Yes.

23    Q.  It is not a secret program?

24    A.  No, ma’am.

25    Q.  This is a program that enables the user to find out

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1781

 

1    information about other disks?

2    A.  Yes.

3    Q.  What is it that you would do with Norton Utilities in order

4    to access some further level or layer of Government Exhibit D3?

5    A.  Norton Utilities, one of the programs contained therein is

6    a disk edit program which allows me to look at the physical

7    sectors of the floppy diskette.

8    Q.  You are not working with a hard drive, are you?

9    A.  Correct.

10    Q.  Everything you are talking about right now is contained on

11    that little physical plastic disk?

12    A.  Yes, ma’am.

13    Q.  Could you use that disk editor utility on Government’s

14    Exhibit D3 in order to access the sectors of the disk that you

15    have been telling us about?

16    A.  I type disk edit A colon.

17    Q.  You went through several steps?

18    A.  Disk edit is a very powerful program.  It warned me it was

19    in read only mode and would not allow me to write to the disk,

20    which is what I wanted.  I wanted to read, not write to this

21    disk at all, I meant.  Then it told me there was an error on

22    the disk which is okay, I don’t mind errors being there.

23    Q.  You are talking about the utility disk?

24    A.  No, the floppy diskette.

25    Q.  What is the screen that is showing?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1782

 

1    A.  It is basically a directory listing of all the files

2    contained therein.

3    Q.  Would you proceed with this utility in order to access the

4    sector of the disk that shows where the password would be

5    found?

6    A.  Okay.  I could go into alt view in hex and have to go

7    through sector by sector for quite a long time.

8    Q.  Before you do that, you said in hex, is that H E X?

9    A.  Yes.

10    Q.  Is that short for some word?

11    A.  For hexidecimal.

12    Q.  What do you mean by hexidecimal?

13    A.  It is computer language.  I am not an expert at it, but it

14    is basically how the computer recognizes characters.

15    Q.  Is that the screen you are seeing right now?

16    A.  Yes.

17    Q.  There appear to be two different arrays on that screen.

18    One occupying about the first three‑quarters of the screen and

19    off to the right another array that seems much less regular.

20             Could you tell us in very general terms what that area

21    on the right of the screen is?

22    A.  It is basically the plain text of what you see on the

23    left‑hand side.

24    Q.  You told us this is quite a lengthy selection of data?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1783

 

1    Q.  Could you scroll through slowly so the jury can see for a

2    moment the kind of characters that appear on the right‑hand

3    side.

4             Generally they are not complete words or phrases in

5    that right‑hand side?

6    A.  Correct.

7    Q.  Does the word “afinacion” appear someplace on this

8    right‑hand side?

9    A.  Yes, it does.

10    Q.  Can you jump ahead to where it appears?  You have

11    previously noted it?

12    A.  I have.

13    Q.  Is that cylinder 50 side 1 sector 8?

14    A.  Yes, ma’am.

15    Q.  Can you please go to that portion?

16    A.  Here is “afinacion.”

17    Q.  What you are seeing is the word “afinacion” on the

18    right‑hand side?

19    A.  Yes.

20    Q.  Does that stand out to you from the other types of

21    characters shown there?

22    A.  Yes.

23    Q.  What is it that makes it stand out?

24    A.  It is a word that doesn’t really fit into what I would

25    expect to find on a disk that has a program.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1784

 

1    Q.  Are there any other words in that right‑hand side in some

2    proximity to afinacion that also seem to jump out at you in the

3    same way?

4    A.  There are three others.

5    Q.  What are those words?

6    A.  MAMBI, M A M B I.

7    Q.  Any others?

8    A.  Cientifico, C I E N T I F I C O and F U E R T E.

9    Q.  Did you work with these other three words as well as with

10    afinacion?

11    A.  Yes, ma’am.

12    Q.  What did you discover with regard to these other words,

13    MAMBI, Cientifico and Fuerte?

14    A.  MAMBI also calls for a disk and I do not remember what

15    Cientifico and Fuerte do.

16    Q.  Was MAMBI a password as well?

17    A.  Yes.

18    Q.  Did that decrypt certain disks?

19    A.  Yes.

20    Q.  But not Government’s Exhibit D2; is that correct, agent?

21    A.  Correct.

22    Q.  Agent, at this time I would like you to turn your attention

23    back to the three notebooks of Spanish exhibits and I don’t

24    believe we will be using the computer any more, so if you would

25    like to, you could turn off your computer and we could switch

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1785

 

1    off the computer display.

2             Could you please bring out the three notebooks that

3    previously had been set before you.

4             Agent, have you previously reviewed these three

5    notebooks?

6    A.  Yes, I have.

7    Q.  What is contained in these three notebooks?

8    A.  They are government exhibit files which depict my work

9    product which was the printouts.

10    Q.  Are these collected exhibits of other broken out plain text

11    or Spanish text that you viewed from the diskettes?

12    A.  Yes, ma’am.

13    Q.  Do those pages truly and accurately reproduce the files as

14    you broke them out from other disks?

15    A.  Yes, ma’am, except for the items that were removed and are

16    so marked.

17             MS. MILLER:  Your Honor, at this point I could recite

18    into the record the list of exhibits in those notebooks.  It is

19    somewhat lengthy.  Alternatively, I could provide the list in

20    writing to the court reporter.  It is simply a recitation of

21    all those exhibit numbers in those books.

22             MR. McKENNA:  We will forego that.

23             THE COURT:  Okay.

24    BY MS. MILLER:

25    Q.  They are in three volumes, are they not?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1786

 

1    A.  Yes.

2    Q.  Did you work with and break out and produce text for all of

3    those exhibits that appear in those books?

4    A.  Yes, ma’am.

5    Q.  Were there different programs that operated to break out

6    some of these disks besides the program that appears on

7    Government’s Exhibit D3?

8    A.  Yes, ma’am.

9    Q.  Have you prepared a chart that reflects the programs that

10    were applied to the various documents that are in those

11    notebooks?

12    A.  Yes, ma’am, I have.

13    Q.  Agent, I have placed before you what has been marked for

14    identification as Government’s Exhibits D1 and D1A.

15             First, what is D1?

16    A.  It is a chart I prepared showing Government’s Exhibit D1

17    and the file name that was attached to that exhibit number.

18    The data disk it came from.  The disk that I used for retrieval

19    or the means that I used for retrieval and the decryption

20    program that was used.

21             MS. MILLER:  The government offers D1.

22             THE COURT:  It will be admitted as Government’s

23    Exhibit D1 in evidence.

24                    (A document was received in

25             evidence as Government’s Exhibit D1.)

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1787

 

1    BY MS. MILLER:

2    Q.  What is Government’s Exhibit D1A?

3    A.  It is a carbon copy of D1 except it adds a field that

4    includes a password which was used with the decryption program

5    in order to break out the document.

6    Q.  Agent, within that notebook are there exhibits ‑‑

7    withdrawn.

8             Within that notebook, are there exhibits which are

9    text that came from disks that you acquired in the ten searches

10    that are displayed on Government’s Exhibit 650, the entries

11    into the apartment you earlier testified to?

12    A.  Yes, ma’am.

13    Q.  Are those exhibits, these particular exhibits, DA 101,

14    which was found in search RTC; is that correct?

15    A.  Yes.

16    Q.  DA 113 found in search RTB; is that correct?

17    A.  I am sorry?

18    Q.  DA 113 found in search RTB; is that correct?

19    A.  Yes.

20    Q.  DA 117 search RTA?

21    A.  Correct.

22    Q.  DA 123 search RTC; correct?

23    A.  Correct.

24    Q.  DA 125, search RTA?

25    A.  Correct.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1788

 

1    Q.  DA 126 search RTC?

2    A.  Correct.

3    Q.  Government’s Exhibit DG 101 found in search RSA; correct?

4    A.  Correct.

5    Q.  DG 104 found in search RSA; correct?

6    A.  Correct.

7    Q.  DG 105 found in RSE?

8    A.  Correct.

9    Q.  DG 106 found in RSB?

10    A.  Correct.

11    Q.  DG 107 found in search RSB?

12    A.  Correct.

13    Q.  DG 108 found in search RSB; correct?

14    A.  Yes.

15    Q.  DG 109 found in search RSD?

16    A.  Correct.

17    Q.  DG 111 found in search RSE; correct?

18    A.  Correct.

19    Q.  DG 112 found in RSA?

20    A.  Correct.

21    Q.  DG 113 found in search RSA?

22    A.  Correct.

23    Q.  DG 114 found in search RSB?

24    A.  Correct.

25    Q.  DG 115 also found in search RSB?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1789

 

1    A.  Yes.

2    Q.  DG 116 found in RSD?

3    A.  Correct.

4    Q.  DG 119 found in search RSD, correct?

5    A.  Correct.

6    Q.  DG 120 found in search RSA?

7    A.  Correct.

8    Q.   DG 121 found in RSA?

9    A.  Correct.

10    Q.  DG 123 found in RSC?

11    A.  Yes.

12    Q.  DG 124 in RSB?

13    A.  Yes.

14    Q.  DG 125 in RSB.

15    A.  Yes.

16    Q.  DG 126 found in search RSB?

17    A.  Correct.

18    Q.  DG 127 found in RSC?

19    A.  Yes.

20    Q.  DG 128 in RSC?

21    A.  Correct.

22    Q.  DG 129 in RSB?

23    A.  Correct.

24    Q.  DG 130 in RSA?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1790

 

1    Q.  DG 131 in RSC?

2    A.  Yes.

3    Q.  DG 132 in  RSC?

4    A.  Yes.

5    Q.  DG 133 was found in RSA?

6    A.  Correct.

7    Q.  DG 134 was found in RSC?

8    A.  Correct.

9    Q.  DG 135 was found in RSE?

10    A.  Yes.

11    Q.  DG 136 was found in RSE?

12    A.  Yes.

13    Q.  DG 137 was found in RSC?

14    A.  Correct.

15    Q.  DG 139 was found in search RSE?

16    A.  Correct.

17    Q.  DHO 101 was found in search CMA?

18    A.  Correct.

19    Q.  And last but not least, DHO 103 was also found in search

20    CMA; correct?

21    A.  Correct.

22    Q.  Agent, for each of these exhibits, did you break out

23    Spanish plain text?

24    A.  Yes.

25    Q.  Again, does that Spanish plain text appear between a top

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1791

 

1    and bottom line with notations as you testified applied to DG

2    129 earlier?

3    A.  Yes, ma’am.

4    Q.  You mentioned something about some of the documents have

5    had material omitted; is that correct?

6    A.  Correct.

7    Q.  Were some of these documents quite lengthy?

8    A.  Yes, they were.

9    Q.  Wherever material has been omitted, is that noted in the

10    text?

11    A.  Yes.

12    Q.  How is it noted, with some lines?

13    A.  Lines and text omitted.

14    Q.  With some other line?

15    A.  Yes.

16    Q.  Does that show where the text resumes?

17    A.  Yes.

18    Q.  Your chart D1 and agent if I may take the exhibit for a

19    moment, I will give you another copy of it, I am placing it on

20    the viewer.

21             This chart as you told us shows for each of these

22    exhibits, the exhibit number, the name of the file, the data

23    disk, the retrieval means and the encryption program; is that

24    correct?

25    A.  Correct.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1792

 

1    Q.  When you say data disk, what are you referring to?

2    A.  The disk where the material was stored or where it came

3    from.

4    Q.  For the encrypted disk, that means a disk that appears to

5    be blank but actually had data on it following your retrieval

6    process; is that correct?

7    A.  Yes.

8    Q.  What appears in the column retrieval means; what does that

9    refer to?

10    A.  The disk used to bring back the encrypted material.

11    Q.  Decryption program?

12    A.  Yes, ma’am.

13    Q.  In fact, is that what the final column is, the program that

14    was contained in the retrieval means disk that was used in

15    order to view that text?

16    A.  Correct.

17    Q.  Agent, for some of these columns where it says retrieval

18    means, most of them have the name of a disk, is that correct?

19    A.  Yes, ma’am.

20    Q.  However, when we get down to, for instance, this one, DA

21    113, instead of a disk name it says plain text.  What does that

22    indicate in your chart with regard to that particular file, DA

23    113 which was contained on disk RTB 95?

24    A.  It was just a plain text file found on the disk, much like

25    D4, do you remember, Mary, Jack and Roses.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1793

 

1    Q.  Regular text that anybody could read?

2    A.  Yes, ma’am.

3    Q.  That was not true of most of these disks, was it?

4    A.  Correct.

5    Q.  In addition, as we go down the chart we see more disks

6    indicated as encryption disks.  Then we get to one entry that

7    says recovered deleted file.

8             Agent, what does that mean when that notation

9    “recovered deleted file” appears in the chart?

10    A.  It means the file had been erased and I was able to bring

11    it back.

12    Q.  How is it you were able to bring it back?

13    A.  Using a non‑erase program.

14    Q.  Was this a commercial program?

15    A.  In this case it was, yes.

16             MS. MILLER:  The government offers in evidence the

17    exhibits that were in the list I previously read and as the

18    agent confirms were obtained in the ten searches.

19             MR. MENDEZ:  To the extent they are incomplete I may

20    wish to introduce the completed report under the Rule of

21    Completeness otherwise I have no objection.

22             THE COURT:  Subject to the objection by Mr. Mendez,

23    admitted into evidence are Government Exhibits, and I tried to

24    follow it as you were reading very quickly your list.

25             MS. MILLER:  I have the list here.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1794

 

1             THE COURT:  Are you introducing the Spanish ‑‑ are you

2    seeking to introduce the Spanish and the English at this time

3    or only the Spanish, it is not clear?

4             MS. MILLER:  At this time we are offering the Spanish.

5             THE COURT:  Okay.

6             It begins with DA 101.

7             DA 101S, DA 113S, DA 117S, DA 123S, DA 125S, DA 126S,

8    DG 101S, DG 104S, DG 105S, DG 107S, DG 108S, DG 109S, DG 111S,

9    DG 110S, DG 111S, DG 112S, DG 113S, DG 114S, DG 115S, DG 116S,

10    DG 119S, and DG 120S.

11             Does that complete your list?

12             MS. MILLER:  It continued.  There was DG 121.

13             THE COURT:  DG 123S, DG 124S, DG 126S, DG 127S.

14             MS. MILLER:  Also DG 125S.

15             THE COURT:  DG 127S, DG 129 was already admitted into

16    evidence.

17             MS. MILLER:  Did you also say 128?

18             THE COURT:  No.

19             DG 128S, DG 131S, DG 130S and DG 132S, DG 133S,

20    DG 134S, DG 135S, DG 136S, DG 137S, DG 139S.

21             MS. MILLER:  The two DHO exhibits.

22             THE COURT:  DH0 101S and DHO 103S.

23             I will request in the future you give both the court

24    reporter and myself a list before you go through the list.  It

25    was much too fast for either he nor I to follow it.  It will be

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1795

 

1    helpful if we had the list in front of us.

2             MS. MILLER:  I do have it in writing and I will give

3    it to the court reporter in writing afterwards as an additional

4    check.

5             THE COURT:  And a copy for me.

6                    (A document was received in

7             evidence as Government’s Exhibit DA‑101 ET SEQ.)

8    BY MS. MILLER:

9    Q.  In addition, agent, was there also with regard to DG 140,

10    was that also an exhibit that reflects text that was obtained

11    in a search, search RSA on September 11, 1996?

12    A.  Yes.

13             MS. MILLER:  In addition the government offers

14    DG 140S.

15             THE COURT:  It will be admitted as DG 140S.

16                    (A document was received in

17             evidence as Government’s Exhibit DG 140S.)

18    BY MS. MILLER:

19    Q.  I would like to turn your attention back to the actual

20    searches reflected on Government’s Exhibit 650 and on the

21    blowup 650A.  Turning your attention to the first search,

22    search CMA.  Can you tell me if any radio equipment was

23    observed in that search?

24    A.  Yes, ma’am.  There was a Sony shortwave receiving radio.

25    Q.  What about computer equipment, was any computer equipment

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1796

 

1    observed during that search?

2    A.  A Toshiba notebook and an NEC laptop.

3    Q.  When you said a Toshiba notebook, are you referring to a

4    computer?

5    A.  A Toshiba laptop computer.

6    Q.  Were any modems observed during the CMA entry?

7    A.  There was a World Port and Touch Base Systems modem.

8    Q.  Agent, what about the search that occurred September 11,

9    1996 at the apartment of Manuel Viramontez 18100 Atlantic

10    Bolevard, search RSA; was any radio equipment observed?

11    A.  There were two Sony shortwave receiving radios found.

12    Q.  Were those shortwave radios seized at that time?

13    A.  No, ma’am.

14    Q.  Why was that?

15    A.  It would leave a trail that I was present.

16    Q.  Was any computer equipment observed at that time?

17    A.  Yes, there was an Epson laptop computer and a Tandy 1100

18    laptop computer.

19    Q.  Were any computer modems observed at that time?

20    A.  Yes, ma’am.  There was an external Smart One Traveler modem

21    present.

22    Q.  What about the second entry found on the list which is

23    Government’s Exhibit 650A for the apartment at Atlantic

24    Boulevard RSB on September 11, was the Epson laptop still in

25    the apartment?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1797

 

1    A.  Yes.

2    Q.  And the modem?

3    A.  The Smart One Traveler was found.

4    Q.  On February 14, 1997 you were in that apartment again?

5    A.  Yes, ma’am, I was.

6    Q.  Did you see that Epson laptop again?

7    A.  Yes.

8    Q.  Agent, I am handing you a box and inside that box is an

9    item Government Exhibit SG 5.  Would you please look at that.

10    Do you recognize SG 5?

11    A.  Yes, I do.

12    Q.  What is SG 5?

13    A.  It is an Epson laptop computer.

14    Q.  Is that the Epson laptop computer you saw in the department

15    during the searches RSA, RSB and RSC?

16    A.  Yes, it is.

17    Q.  You didn’t take that computer in those searches, did you?

18    A.  No.

19    Q.  Was that computer acquired in a subsequent search?

20    A.  Yes.

21             MS. MILLER:  The government moves into evidence SG 5.

22             THE COURT:  It will be admitted as Government’s

23    Exhibit SG 5.

24                    (A document was received in

25             evidence as Government’s Exhibit SG 5.)

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1798

 

1    BY MS. MILLER:

2    Q.  You can take it out of the box and the plastic.

3             Could you please open that up and hold it up, please.

4    Is there a label on it, a handwritten label?

5    A.  Yes, there is.

6    Q.  Whose handwriting is on that label?

7    A.  Mine.

8    Q.  Were you the one who ultimately acquired that laptop

9    computer?

10    A.  Yes, ma’am.

11    Q.  I would like to turn your attention further to the search

12    that was conducted on February 14, 1997, search RSC.  Were any

13    writings, handwritings, observed on that day?

14    A.  There was a note found at the apartment which had

15    handwritten on it dinero entregado Giro.  Which translates to

16    money turned over to Giro.

17    Q.  Agent, I am handing you what has been marked in evidence as

18    Government’s Exhibit 601 and ask if you recognize that?

19    A.  Yes, I do.

20    Q.  What is 601?

21    A.  It is a copy of this note.

22    Q.  When you say it is a copy, when was that copy made?

23    A.  On the day of the search, February 14, 1997.

24    Q.  February 14, 1997?

25    A.  Yes, ma’am.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1799

 

1    Q.  How is it a copy was made at the time of the search,

2    February 14, 1997?

3    A.  Actually the note was removed from the apartment and taken

4    to the FBI office and xeroxed or photocopied and brought back

5    to the apartment.

6    Q.  The original note?

7    A.  Yes, ma’am.

8    Q.  Was the original note replaced and left in place at the end

9    of the search?

10    A.  Yes, ma’am.

11    Q.  Are there various amounts of money that appear on that

12    note?

13    A.  Yes, ma’am.

14    Q.  Can you turn your attention to Government’s DG 103 now in

15    evidence in the notebooks that are in front of you ‑‑

16    withdrawn.

17             Was any radio receiver equipment noted during search

18    RSC.

19    A.  Yes, ma’am.  There was a Sony shortwave HF receiver.

20    Q.  Agent, was any observation made of a license plate present

21    in the apartment during the search of February 14, 1997?

22    A.  Yes, ma’am.  There was a license plate found in the closet

23    of the apartment, the hallway closet between the bedroom and

24    the bathroom.

25    Q.  Was that license plate taken at the time?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1800

 

1    A.  No, ma’am, it was not.

2    Q.  Was it subsequently acquired by the FBI at a subsequent

3    date?

4    A.  Yes, ma’am.

5    Q.  Was a notation made of the license plate number?

6    A.  Yes, ma’am.

7    Q.  Agent, I am handing you what has been marked for

8    identification purposes as Government’s Exhibit SG 13 and ask

9    if you recognize that?

10    A.  Yes, ma’am.

11    Q.  What is Government’s Exhibit SG 13?

12    A.  It is a license plate that was found in the hallway closet

13    between the bedroom and the bathroom both on the night of RSC

14    and another time when we did a search warrant.

15    Q.  Moving on to search RSD, August 8, 1997, was the Epson

16    computer observed in the apartment?

17    A.  Yes, it was.

18    Q.  Where was it located this time?

19    A.  It was sitting in the bedroom in a computer desk.

20    Q.  I am placing RS 61A on the easel.

21             Agent, a moment ago I asked you about the license

22    plate found during RSC.  I am handing you what has been marked

23    as SG 60M and ask you if you recognize that photo?

24    A.  Yes, ma’am.

25    Q.  Does that photograph bear some relationship to the license

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1801

 

1    plate?

2    A.  Yes, ma’am.  This is the closet that the license plate was

3    found in.

4    Q.  Does that photograph 60M truly and accurately depict the

5    closet as you remember it during the search of February 14,

6    1997?

7    A.  Yes, ma’am.

8             MS. MILLER:  The government offers photo 60M and its

9    enlargement 60M‑1 in evidence.

10             THE COURT:  It will be admitted into evidence as

11    SG 60M and SG 60‑1 in evidence.

12                    (A document was received in

13             evidence as Government’s Exhibit SG 60M and 60M‑1.)

14    BY MS. MILLER:

15    Q.  Agent, could you turn your attention now to the search of

16    April 26, 1998, the search known as RSE of 18100 Atlantic

17    Boulevard, the apartment of Viramontez.  Was the Epson still

18    present?

19    A.  Yes, it was.

20    Q.  Where was it located at that time?

21    A.  On the dining room table.

22    Q.  During these last searches you testified about, RSD and

23    RSE, was there any note that was seen, a handwritten note?

24    A.  Yes, ma’am.  There was a yellow post‑it in the computer

25    desk in between the shelves in the back area.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1802

 

1    Q.  I have handed you Government’s Exhibit SG 50.  Do you

2    recognize it?

3    A.  Yes.

4    Q.  What is Government’s Exhibit SG 50?

5    A.  It is a post‑it note found in the bedroom on the desk in

6    the wall between the two shelves in the back of the desk.

7    Q.  Agent, I am showing you Government’s Exhibit SG 60T and ask

8    you if you recognize that photograph?

9    A.  Yes, ma’am.

10    Q.  What do you recognize that picture to be?

11    A.  It is a picture of the royal sovereign subject’s bedroom

12    facing the door from the bedroom out, and it shows the desk and

13    the yellow post‑it and the back wall of the desk.

14    Q.  This is the same yellow post‑it that is Government’s

15    Exhibit SG 50?

16    A.  Yes.

17             MS. MILLER:  The government offers SG 50, its blow up

18    SG 50A and SG 60T and SG 60T‑1 in evidence.

19             THE COURT:  They will be admitted as Government

20    Exhibits SG 50, SG 50A and SG 60T and SG 60T‑1 in evidence.

21                    (A document was received in

22             evidence as Government’s Exhibit SG 50, SG 50A,

23             SG 60T, SG 60T‑1.)

24    BY MS. MILLER:

25    Q.  Agent, SG 50 is this little piece of paper that now appears

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1803

 

1    on the computer display?

2    A.  Yes.

3    Q.  It has certain Greek letters?

4    A.  Yes, ma’am.

5    Q.  It also has certain numbers that have the prefix V; is that

6    correct?

7    A.  Yes, ma’am.

8    Q.  How many of those V numbers appear?

9    A.  Four ‑‑ six.

10    Q.  Do some of those V numbers appear to have initials or

11    letters following them?

12    A.  Yes.

13    Q.  Do you recognize any of the initials?

14    A.  I can hazard a guess what they stand for.

15    Q.  Let me ask you not to guess.  Are you familiar with the

16    name or the code name Castor?

17    A.  Yes.

18    Q.  Are you also familiar with the code name Franklin?

19    A.  Yes.

20    Q.  What about the name Manolo as a code name?

21    A.  Yes.

22    Q.  The name Judith as a code name?

23    A.  Yes.

24    Q.  Thank you, agent.

25             If you could now turn your attention for a moment to

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1804

 

1    the searches that took place that are listed as searches RTA,

2    RTB, RTC and RTD.  Did you also observe some computer equipment

3    during those searches?

4    A.  Yes.

5    Q.  Go back to RSE, the search of Mr. Viramontez’ apartment at

6    18100 Atlantic Boulevard.

7             Was any money or amount of cash observed during that

8    visit?

9    A.  Yes.

10    Q.  What was observed?

11    A.  There was $7,450 in cash in a closet, in the closet between

12    the bedroom and the bathroom.

13    Q.  What was that money held in, if you recall?

14    A.  A shoe box.

15    Q.  Turning your attention now to those four RT searches, A, B,

16    C and D.  Was any computer equipment observed during those

17    searches?

18    A.  RSA there was an external modem.  MT Star, that was

19    observed.

20             RTB, there was a Sharp laptop computer and a Tandy

21    laptop computer.

22             RTC there was the Sharp laptop computer, the Tandy

23    laptop computer.

24             RTD, there was a Sharp laptop computer and an external

25    modem, some modem.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1805

 

1    Q.  During these searches, were there other agents present?

2    A.  Yes, ma’am.

3    Q.  Did some of these agents observe things that you did not

4    personally observe?

5    A.  Yes, ma’am.

6    Q.  What was your attention focused on during these entries?

7    A.  Copying the computer diskettes found on the premises.

8    Q.  Were you the only CART team member who was participating in

9    these searches?

10    A.  Yes, ma’am.

11    Q.  Therefore, was that your exclusive domain, copying these

12    disks?

13    A.  Yes.

14    Q.  Was that a time‑consuming process?

15    A.  Yes, ma’am.

16    Q.  Agent, you have told us and testified there were some of

17    these items that were obtained in a subsequent search of the

18    apartment at 18100 Atlantic Boulevard; is that correct?

19    A.  Yes, ma’am.

20    Q.  When did there occur a search you are aware of in which

21    items were searched and seized?

22    A.  September 12, 1998.

23    Q.  Was that search made pursuant to legal authority?

24    A.  Yes, ma’am.

25    Q.  What authority was that?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1806

 

1    A.  A Federal search warrant.

2    Q.  Did you participate in any searches on that day?

3    A.  Yes, ma’am.

4    Q.  What search did you participate in on that day?

5    A.  18100 Atlantic Boulevard Apartment Number 305.

6    Q.  The same apartment that is reflected in the various RS

7    searches in Government’s Exhibit 650?

8    A.  Yes, ma’am.

9    Q.  Were you the only person involved in that search?

10    A.  No, ma’am.

11    Q.  What were your duties and responsibilities with regard to

12    the search of that apartment that day?

13    A.  My responsibilities were to tag and seize all computer

14    related material.

15    Q.  Was it at that time that the Epson laptop computer which

16    has been placed in evidence as Government’s Exhibit SG 5 was

17    acquired, during that search?

18    A.  Yes, ma’am.

19    Q.  On September 12, 1998, where was that laptop computer

20    found?

21    A.  In the living room, dining room area on the dining room

22    table.

23    Q.  This was not a surreptitious search, was it?

24    A.  No, ma’am.

25    Q.  At this point items were being taken?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1807

 

1    A.  That is correct.

2    Q.  What event occurred that made it unnecessary for this to be

3    a surreptitious search?

4    A.  We had the authority to arrest the subjects and obtained a

5    criminal search warrant to seize materials.

6    Q.  Agent, I am handing you Government’s Exhibits SG 60F and

7    ask you if you recognize those items?

8    A.  Yes.

9    Q.  What are those items?

10    A.  Photographs showing the interior of Apartment 305, mostly

11    focusing on the dining room area.

12    Q.  Do those photographs truly and accurately depict that

13    apartment as you saw it that day September 12, 1998?

14    A.  Yes.

15             MS. MILLER:  The government offers those photographs

16    in evidence and the accompanying enlargement.

17             THE COURT:  They will be admitted as SG 60F,

18    SG 60F‑1, SG 60G, SG 60G‑1 and SG 60I and SG 60I‑1 in evidence.

19                    (A document was received in

20             evidence as Government’s Exhibit SG 60F, SG 60F‑1,

21             SG 60G, SG 60G‑1, SG 60I and SG 60I‑1.)

22             MS. MILLER:  I will put up the enlargements on the

23    easel?

24             THE COURT:  You may publish.

25    BY MS. MILLER:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1808

 

1    Q.  Agent, do these photos show the condition of the apartment

2    before the search?

3    A.  Yes, ma’am.

4    Q.  What is depicted in the photograph that I have on the Elmo

5    right now?

6    A.  It is the living room, dining room area as seen from the

7    porch door.

8    Q.  I am pointing over here to the dining room table.  What is

9    it I am pointing at right here?

10    A.  The laptop computer.

11    Q.  Is this another view of the same area from a different

12    angle?

13    A.  Yes.

14    Q.  Is this the same laptop?

15    A.  Yes.

16    Q.  Is this a closer view of the desk?

17    A.  It is a closer view of the table.

18    Q.  What am I pointing to here?

19    A.  The laptop computer.

20    Q.  Are there diskettes that are visible about the table?

21    A.  Yes, ma’am.

22    Q.  I am pointing to some with the pointer; is that correct?

23    A.  Yes, ma’am.

24    Q.  When you made your surreptitious entries, did you observe

25    some diskettes which you did not attempt to copy?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1809

 

1    A.  Yes, ma’am.

2    Q.  Why is it there were some diskettes you did not attempt to

3    copy during your surreptitious searches of the ones reflected

4    in the chart Government’s Exhibit 650?

5    A.  It appeared I would not be able to put them back in their

6    original slot, place.

7    Q.  So you were concerned about the physical configuration of

8    some of the diskettes that you found?

9    A.  Yes.

10    Q.  On September 12, 1998, were you able to acquire all of the

11    diskettes that were found in the apartment?

12    A.  Yes, ma’am.

13    Q.  Was there also some equipment that was obtained during the

14    search of the apartment, Manuel Viramontez’ apartment on

15    September 12, 1998?

16    A.  Yes.

17             MS. MILLER:  If I may have Government’s Exhibits 4 and

18    3, please.  It has the prefix SG 3 and SG 4.

19    BY MS. MILLER:

20    Q.  Agent, do you recognize SG 3?

21    A.  Yes, I do.

22    Q.  Do you recognize Government’s Exhibit SG 4?

23    A.  Yes.

24    Q.  What is SG 4?

25    A.  It is an external modem with a power supply and cables

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1810

 

1    attached.

2    Q.  What is a modem?

3    A.  It is a piece of hardware that allows a computer to talk

4    over a telephone line.

5    Q.  And the laptop which you had observed, SG 5, the Epson

6    computer, did it have any ports or openings that would allow it

7    to be hooked up to a modem?

8    A.  Yes.

9    Q.  Was it hooked up to a modem when you seized it?

10    A.  I don’t remember.

11    Q.  With regard to SG 5, the Epson computer laptop, was it

12    hooked up to any printer at the time of the search?

13    A.  No, ma’am.

14    Q.  You told us what you recognize SG 4 to be.

15             MS. MILLER:  The government offers SG 4 into evidence.

16             THE COURT:  It will be admitted as SG 4 into evidence.

17                    (A document was received in

18             evidence as Government’s Exhibit SG 4.)

19    BY MS. MILLER:

20    Q.  Could you look at SG 5 and tell us if you recognize that

21    item ‑‑ excuse me, SG 3?

22    A.  Yes, ma’am.

23    Q.  What do you recognize SG 3 to be?

24    A.  It is an external modem with cables attached.

25             MS. MILLER:  The government offers SG 3 into evidence.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1811

 

1             THE COURT:  It will be admitted as Government’s

2    Exhibit SG 3 in evidence.

3                    (A document was received in

4             evidence as Government’s Exhibit SG 3.)

5    BY MS. MILLER:

6    Q.  Does Government’s Exhibit SG 3 have any modem burst

7    function?

8    A.  Yes, ma’am.

9    Q.  What does it do with regard to any modem burst?

10    A.  It is a modem and once connected to the computer will

11    connect out.  Included in this package is a cable that would

12    hook to the telephone line plug out and it has a jack for a

13    recorder.

14    Q.  What is a burst or data burst?

15    A.  It is that computer language that goes out through a modem

16    to connect to another computer, how computers talk to one

17    another.

18    Q.  Agent, earlier you told us about Government’s Exhibit

19    SG 50, the yellow slip of paper; do you recall that?

20    A.  Yes.

21    Q.  On September 12, 1998, was that yellow slip of paper still

22    in the apartment?

23    A.  Yes.

24    Q.  Was it still in the location where you had seen it on the

25    prior searches?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1812

 

1    A.  Yes.

2    Q.  Was it seized on that date September 12?

3    A.  Yes, ma’am.

4    Q.  Agent, did you seize diskettes on September 12, 1998?

5    A.  Yes, ma’am.

6    Q.  I would ask you to turn your attention again to the three

7    notebooks that are to your right?

8    A.  Yes.

9    Q.  Do those three notebooks contain exhibits of text that were

10    produced by you examining and breaking out material that you

11    found on diskettes or copies of diskettes that you seized on

12    September 12, 1998 at the apartment of Manuel Viramontez?

13    A.  Yes, ma’am.

14             THE COURT:  Ms. Miller, is this a good place to break?

15             MS. MILLER:  I was going to introduce six of these

16    exhibits then that would be a good place.

17             THE COURT:  Go ahead.

18    BY MS. MILLER:

19    Q.  Agent, if you could turn to your chart Government’s Exhibit

20    D1.  Were the exhibits in those notebooks that were obtained ‑‑

21    first of all, was there an abbreviation used for the search of

22    September 12, 1998 as had been used for the other searches?

23    A.  RSF.

24    Q.  F being the next letter in sequence that had been used for

25    the previous searches?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1813

 

1    A.  Yes.

2    Q.  In connection with the letters RS?

3    A.  Yes.

4    Q.  The exhibits in the three books in front of you, were they

5    the ones in RSF DG 102, DG 103 ‑‑

6             THE COURT:  Do you have a list for me?

7             MS. MILLER:  I do.  But this is only six.

8    BY MS. MILLER:

9    Q.  DG 102, DG 103, DG 117, DG 118, DG 122 and DG 138; were

10    they all derived from RSF diskettes?

11    A.  Yes.

12    Q.  RT is a different location?

13    A.  Yes.

14             MS. MILLER:  The government offers in evidence DG 102,

15    DG 103, DG 117, DG 118, DG 122 and DG 138.

16             THE COURT:  These are the Spanish version?

17             MS. MILLER:  Yes and they all should have the suffix

18    S.

19             THE COURT:  They will be admitted into evidence as

20    DG 102S, DG 103S, DG 117S, DG 118S, DG 122S and DG 138S.

21                    (A document was received in

22             evidence as Government’s Exhibit DG 102S, 103S,

23             117S, 118S, 122S, 18S.)

24    BY MS. MILLER:

25    Q.  Agent, for all of those exhibits, is the same convention

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1814

 

1    used where there is a line at the top and at the bottom and in

2    between is the text and if anything has been redacted, there is

3    a notation “material omitted”?

4    A.  Yes.

5             MS. MILLER:  This is a good time to break.

6             THE COURT:  Ladies and gentlemen we will break at this

7    time for the day.  Do not discuss this matter among yourselves

8    or with anyone else.  Do not listen to or read anything

9    touching on this matter in any way.  If anyone should talk to

10    you about this case, you should immediately tell them you are

11    serving on the jury and they must stop and you must report it

12    to my staff.

13             If you would, give your notebooks to Larry and you

14    will be back in the juryroom tomorrow morning at 8:45.

15             Have a nice afternoon and evening, we will see you

16    tomorrow.

17             (Jury leaves room.)

18             THE COURT:  Mr. Norris, what is your pleasure, sir, as

19    far as replying to the government’s response on your motion in

20    limine?

21             MR. NORRIS:  I would like to read the government’s

22    case, Your Honor, and file a brief response the first thing in

23    the morning.

24             THE COURT:  That is fine.

25             Let me ask a question of the government in regard to

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1815

 

1    the evidence that is being introduced that Mr. ‑‑ the witness

2    can step down.  Thank you, sir.

3             The subject matter of Mr. Norris’ motion in limine.

4    Have you prepared notebooks for the jury?

5             MS. MILLER:  We have, Your Honor, in English.  We have

6    one notebook for every juror and there are three notebooks so

7    three times 16.  We also prepared a set for the Court.  We have

8    been furnishing them to defense.

9             THE COURT:  How many pages in each notebook?

10             MS. MILLER:  These are the notebooks in Spanish.

11    There should be a third one.  The notebooks in English are

12    approximately the same size.

13             THE COURT:  How many pages roughly?

14             MS. MILLER:  3,000 for the Spanish, 3,000 for the

15    English.  6,000 pages total.  The English we have made a set as

16    I said for all of the jurors.  The Spanish we have made five

17    total sets.  It is probably about 100,000 pieces of paper.

18             THE COURT:  Each one of the paragraphs contained in

19    these notebooks is 6,000 pages, 3,000 for Spanish and 3,000 for

20    English, so I have an indication of its status?

21             MS. MILLER:  All of these documents were classified

22    and have been declassified; so the marking that appears, and if

23    I may show one to the Court, a marking that is at the bottom of

24    each page in small print.

25             THE COURT:  Please.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1816

 

1             MS. MILLER:  It appears as a footer at the bottom of

2    each page and it says “declassified by,” and it has the

3    initials of the declassifying individual.  Then it has the

4    credential number for the official who holds that

5    declassification authority, then it shows the date of

6    declassification.

7             We have been producing these to the defense since

8    approximately late October.

9             THE COURT:  All of the notebooks are the same?

10             MS. MILLER:  Yes, Your Honor.  There is one prototype

11    document and it was photocopied many times to make all the

12    notebooks identical.

13             THE COURT:  For both the English and the Spanish?

14             MS. MILLER:  Yes.

15             THE COURT:  This is the only indication on each page

16    that this evidence was declassified?

17             MS. MILLER:  That is right.

18             THE COURT:  We are in recess until tomorrow morning at

19    8:45.

20             Have a nice afternoon and evening.

21             (Thereupon a recess was taken, after which the

22    following proceedings were had.)

23             4:15 p.m.

24             (Open court.  Jury not present.)

25             THE COURT:  United States of America versus Gerardo

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1817

 

1    Hernandez, et al. Case Number 98‑721.

2             Would counsel state their appearances.

3             (All parties present.)

4             THE COURT:  Mr. Buckner and Mr. Norris have not shown

5    up.

6             MR. McKENNA:  I am standing in for Mr. Norris and I

7    waive his client’s presence as well as mine.

8             THE COURT:  Everybody waives their client’s presence.

9             I appreciate everybody coming back on such short

10    notice and I do know your time is precious and you have lots of

11    things to prepare for.

12             As you are all aware, the press and the media are

13    actively observing this trial and have requested after the

14    notebooks came up today and the introduction of the three

15    notebooks that have been introduced as government exhibits,

16    they have requested how they are going to have access to those

17    notebooks.

18             Somehow, Mr. Buckner indicated to somebody I have a

19    plan.  I don’t have a plan.  Certainly I would not make any

20    accommodation for the use of any evidence without letting the

21    attorneys from both sides have an opportunity to voice their

22    positions and if you want an opportunity to discuss this with

23    your clients this evening, I don’t have any problems with that,

24    either.

25             But I want to let you know there has been a request ‑‑

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1818

 

1    I believe it is limited to the notebooks, they are asking they

2    be released in some fashion to the media and has even gone so

3    far to indicate the government indicated they have 16 copies

4    and inasmuch as we have 15 jurors, there is an extra copy but

5    the interpreters have asked for a copy so they will be able to

6    follow along and I presume that is where the 16th copy is

7    going.

8             MS. MILLER:  We directed 25 sets of this material be

9    made with five sets for defense counsel.  I have a set, the FBI

10    has a set.  My point is, I don’t know if I have exactly 16 or

11    17 clean sets at this point and one thing I was planning on

12    doing is probably having a few more sets made, because it is

13    our plan to have one for each juror, one for the Court ‑‑

14             THE COURT:  One for the court reporter ‑‑

15             MS. MILLER:  Which I might say I hadn’t planned for,

16    but we will make whatever additional sets are necessary to

17    cover all those contingencies.  That is of the English.  The

18    Spanish we have five sets because we did not feel that needed

19    to be provided one for each juror.

20             THE COURT:  I believe they have requested Spanish and

21    English?

22             THE CLERK:  They weren’t specific about it.  They just

23    inquired as to notebooks.

24             MS. MILLER:  The English is not in evidence yet and

25    even among the Spanish, the entirety of these notebooks is not

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1819

 

1    in evidence though we were going to be dealing with the rest of

2    them tomorrow morning with Agent Rosado.

3             THE COURT:  How many notebooks are there, one complete

4    set?

5             MS. MILLER:  Three volumes in English and three

6    volumes in Spanish.

7             THE COURT:  So the total set of all the notebooks is

8    six?

9             MS. MILLER:  That is right, Your Honor.

10             MR. McKENNA:  Your Honor, we discussed it briefly and

11    as you can imagine, we are not thrilled about anything going

12    out.  The information contained in those books you could have

13    expose’s from now until the end of March if they wanted to.

14    There is a lot of information in there.

15             I have been down this route once before in front of

16    Judge King last year, the juror that took a bribe, and we

17    resisted that.  We didn’t want certain tapes that had been made

18    of him released and the press came with attorneys and it was

19    litigated and Judge King had to turn it over.

20             THE COURT:  During the trial?

21             MR. McKENNA:  During the trial.  We objected to it.

22    We didn’t want it to be done.  The way he did it, instead of

23    giving it to them, he let them review it in the U.S. Attorney’s

24    Office where they had to hold their press conferences and

25    finally they did get a copy of the tape because they played it

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1820

 

1    on TV.

2             We are not happy about it.  Right now there are no

3    English versions of this in evidence and I talked to the

4    government about that tonight, how long it would be before they

5    came in and it is coming in pretty soon.

6             THE COURT:  We have a number of media.  I am not

7    keeping tabs on who comes in, who is here and who is not except

8    there is a back row reserved for the media and from my

9    viewpoint, for the most part it is filled and has been filled

10    every day.

11             I believe there are a number of representatives from

12    the media from both TV and press and I don’t know about radio,

13    but several of them are Spanish speaking.  There may be an

14    interest even in the Spanish speaking evidence that is in.

15             What is your position about the government making

16    available one complete set as it comes into evidence in the

17    U.S. Attorney’s Office for their review?

18             MR. McKENNA:  My position is I have to object but I

19    don’t think I am on good grounds having been this route once

20    before.

21             MR. MENDEZ:  Without knowing what rights the media

22    have, I do think we would prefer that neither side become the

23    source of information for the media.  In other words, of course

24    what is introduced into evidence is a matter of public record

25    to the extent anything of that nature is, but I think all that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1821

 

1    would allow them to do is somehow review what is in evidence

2    within the confines of this courtroom and under the Court

3    supervision because we don’t want people handling evidence and

4    we don’t want to have another chad problem during this trial.

5             THE COURT:  I thought I was hearing things.

6             MR. MENDEZ:  I hate to bring up a sore subject.  Maybe

7    page 37 will be missing and who knows how much rummaging is

8    going to happen.

9             THE COURT:  If it is going to happen, if there are

10    objections, I will have it litigated because you are entitled

11    at least to present your side of the argument and your case law

12    and I will require the media and the press to do the same and

13    the government can take their position and I have not had it

14    presented before me.

15             I understand what you are saying, Mr. McKenna, you

16    might not be on firm ground even with that objection, but each

17    District Judge is separate.  I may end up agreeing with Judge

18    King and order it, but I don’t know until the issue has been

19    properly presented to me.

20             MR. MENDEZ:  Since we are talking about documents now

21    that are in Spanish, and those documents the government has

22    chosen to rely on, I think given the amount of attention the

23    case has received, I think we have to object to it being

24    released.  Because it is in Spanish, it is more likely than not

25    to be disseminated to Spanish speaking media which in our

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1822

 

1    estimation is more aggressively antidefendant than the English

2    speaking media, so that adds that level of complexity.  I think

3    we have to object to it and we will do it in front of the media

4    whenever the Court sets it for and I don’t know where the line

5    in this area is, but I don’t think we can agree to handing this

6    over to the press because it will condemn us in the public eye.

7             MR. BLUMENFELD:  The documents that are going into

8    evidence are the exhibits as we received them, because some of

9    them are not complete exhibits.  In other words, there will be

10    a complete report.  Some of them have material omitted, the

11    government is putting in a portion of it which the government

12    is putting in these books.

13             MS. MILLER:  Yes.

14             THE COURT:  Mr. Mendez submitted a Rule of

15    Completeness objection that I reserved on concerning the

16    information on the disk.

17             MR. BLUMENFELD:  I don’t know how we could keep it

18    from them once it is in evidence, but I am of the view also I

19    don’t want the Spanish out without the English out and perhaps

20    the government could withdraw the Spanish or move it into

21    evidence the same time the English is in.

22             THE COURT:  Number one, nothing has been released to

23    them.  They approached Lisa, my courtroom deputy, and she has

24    informed them she doesn’t have right now an answer for them

25    because this all came up while I was in the middle of trial and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1823

 

1    quite frankly, it has not been properly ‑‑ it is not an issue

2    properly before the Court except on an informal request and as

3    you know, I have been busy with other matters.  I was in trial

4    until 1:45 and I had other hearings but I just broke from my

5    day in Court about a half hour ago.

6             I just wanted to see if there was an objection.  You

7    indicated there is.  I will then convey to the media that the

8    defense attorneys have objected to any release and they should

9    file whatever motion or take whatever action they feel is

10    appropriate.

11             MR. HOROWITZ:  On behalf of my client, I would object

12    as well based on the fact the Court painstakingly almost over a

13    week and a half that it took to pick a jury in this case asked

14    individual questions regarding publicity and obviously the

15    release of these books will generate a torrent of publicity.

16             THE COURT:  I suspect once other matters involving

17    Florida and the election have subsided, whenever that might be,

18    I would think all of that, the latest it would be over is

19    January 20 no matter what happens.  At that point, I could be

20    wrong but just from a citizen’s point of view, I think that is

21    the day we are supposed to have a new president sworn in, so it

22    would cease.

23             There hasn’t been that much coverage because of that,

24    but I think that will change.  I don’t know how much day‑to‑day

25    coverage there will be.  As you all know, as we are all aware,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1824

 

1    a trial is detail upon detail, step upon step, block upon block

2    in the building of the case then the taking down of the case

3    through the presentation of a defense case and it is on a

4    day‑by‑day basis and I don’t know how much day by day coverage

5    there will or will not be.  It may be sporadic, it may be on a

6    daily basis, I don’t know.

7             MR. MENDEZ:  For the Court’s information because maybe

8    the Court doesn’t read the Herald in its Spanish version, one

9    of the reporters here every day is for the Spanish version.

10    They have been following the case much more closely and giving

11    it a lot of press.  As a matter of fact on the day of the

12    opening statements, they published a photograph which the

13    author of the article said was received from some anonymous

14    source, a photograph of Mr. McKenna’s client toasting with

15    another co‑defendant, an indicted co‑defendant not before us

16    who is in Cuba.

17             That is the kind of what I say is aggressive coverage

18    and I will not even mention the radio which is another ball of

19    wax; but in the printed press it is getting a little more

20    attention than the Miami Herald which hasn’t given it much ink

21    at all.

22             THE COURT:  You are requesting I convey to the press

23    there has been an objection and they should take whatever

24    further action they feel is appropriate.

25             MR. McKENNA:  They will have to bring it to a head,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1825

 

1    somehow and at that point we will make whatever arguments we

2    can, but right now we object.

3             THE COURT:  Does the government have a position?

4             MS. MILLER:  We are not vigorous proponents of

5    releasing this material, but we do not object to its release.

6    I think Mr. McKenna has put his finger on the fact it is a

7    tough argument to make once the material is in evidence.

8             THE COURT:  Normally what happens with trials once

9    evidence is introduced, does the press and the media have

10    access to those items of evidence as they come in or we don’t

11    have to deal with this, take that issue up because nobody asks.

12             MR. HOROWITZ:  When something is put into evidence, it

13    transfers from a party’s custody into the Clerk of the Court,

14    then it comes back to you after the trial is concluded.

15             THE COURT:  That is true because I sign a release.  I

16    think Mr. Horowitz is correct.  If it is received by the Court

17    in evidence, parties actually are custodians of the evidence

18    and once the case is over, the parties stipulate and the Court

19    orders the evidence to be turned back; so in essence it is part

20    of the public record, you are correct.

21             MS. MILLER:  On a somewhat related point, these

22    notebooks we have made are fungible, they are all duplicates,

23    but in Court this morning, this morning I had my own personal

24    markings.  I want to be sure that is not the set that becomes

25    the evidentiary set, so I have a clean set here and with the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1826

 

1    Court’s permission, I want to put a little sticker on these so

2    we know it is the clean set.

3             THE COURT:  Why don’t you put a green dot on it or

4    something.

5             MS. MILLER:  I will do that.  I don’t want a mishap

6    where my materials get mixed in with that.

7             THE COURT:  While we are on that subject, what is

8    happening with Mr. Tester?  He was in the courtroom this

9    morning.

10             MR. McKENNA:  The way I left it with the attorney from

11    NBC, I had to call them back and one of the routes I am

12    following up on, there were other people in the plane that day

13    that I have identified that are not members of the press and my

14    investigator is trying to contact them.  I am pursuing that and

15    if I can work it out, I will work it out.

16             I have not received their video.  I mentioned it in my

17    opening statement.  I have seen an excerpt of it from a video I

18    got from the government in discovery but they haven’t produced

19    for me the video that was taken that day and I have asked for

20    it.  It has been subpoenaed.

21             THE COURT:  As you are working this out, is there any

22    problem with having him in the courtroom?

23             MR. McKENNA:  I don’t object to that.  I think it is

24    by agreement he can be here for now.

25             MS. MILLER:  As we said when this came up at side bar,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1827

 

1    ordinarily of course he would be excluded.  I don’t want to

2    open a barrel of fish hooks with a fight like that.  As long as

3    we are at this stage where I don’t see any overlap of the

4    testimony we are taking with what I assume to be Mr. Tester’s

5    area, we are not going to object, but there are certainly parts

6    of this trial it may become more of an issue.

7             THE COURT:  If and when there are parts of the trial

8    that it becomes an issue and if it has not yet been resolved,

9    you know better what your cases are, when the presentation of

10    evidence is if it becomes an issue that I have to then take up

11    or make a ruling on.

12             MR. McKENNA:  I will try and get it resolved if I can

13    before we break for Christmas.

14             MS. MILLER:  Yes, Judge.

15             MR. KASTRENAKES:  That will not be a problem.  We

16    won’t be presenting that part of the case until after the

17    break.

18             THE COURT:  I still have to give you a timetable for

19    the objections to the video depositions

20             Is there an estimate of the amount of time I will have

21    to spend in hearing with you all to be able to rule on the

22    objections?

23             MS. MILLER:  Judge, we spent a lot of time voicing our

24    objections and usually in well modulated voices, but you may

25    have to spend a lot of time listening to some tapes.  I think

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1828

 

1    although there may or may not be oral arguments, we thrashed a

2    lot of those issues out on the record at the time of the

3    deposition.  I think probably the most practicable way to

4    proceed is to have the Court submit a briefing schedule and let

5    us submit our briefs and it will be easier for the Court to

6    determine what sort of hearing if any the Court wishes to

7    conduct.

8             The depositions, we got into it quite a bit in the

9    depositions.

10             THE COURT:  Let me propose this briefing schedule to

11    you and I am open if it doesn’t work. The 22nd for the

12    government.  The 22nd of December.  Then the 28th for the

13    defendants to respond.

14             MS. MILLER:  We would respectfully ask for more time

15    than that if we are going to be in Court until the 20th.

16             THE COURT:  Do you want the 28th or the 29th?

17             MS. MILLER:  If that could be worked into the

18    schedule, that would be much better for us.

19             THE COURT:  I think it will make Mr. Mendez happy.

20             I can’t imagine he is not going to be working on the

21    case ‑‑

22             MR. MENDEZ:  It doesn’t matter, I will be working

23    anyway.

24             THE COURT:  Does the 28th work for the government?

25             MS. MILLER:  It would be very good, Your Honor.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1829

 

1             THE COURT:  The 28th and do you want ten days

2    thereafter?

3             MR. McKENNA:  Two weeks.

4             THE COURT:  Okay.  I also want to give myself time to

5    be able to review all of this, look at the videos, read the

6    transcripts and set a hearing and I don’t want to get too close

7    to the presentation of your case.

8             MR. MENDEZ:  I thought it was up to the government to

9    go ahead and file their objections as soon as possible because

10    we don’t want to be facing, without knowing when our case is

11    supposed to begin, I hate to be hitting that deadline.

12             Your Honor, they objected to almost every question and

13    moved to strike every answer.

14             THE COURT:  I am hoping you will be able to resolve

15    some of those issues one way or the other in the presentation

16    of the briefs.  If I have to rule on every objection with

17    argument, it will take some time.  We are talking about six or

18    eight depositions, more than that?

19             MR. MENDEZ:  I had four.

20             MR. McKENNA:  I had three.

21             THE COURT:  Eight depositions?

22             Two weeks brings us to January 11.

23             MR. McKENNA:  That is fine, Your Honor.

24             THE COURT:  It is hard to estimate when the conclusion

25    of the government’s case is going to be since it is the first

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1830

 

1    day of the presentation of evidence.  You can say to them when

2    are you going to finish your case, but I don’t think they will

3    be able to tell me after one day.

4             We have a week and a half then we come back on either

5    the 2nd or the 3rd.  I haven’t made a decision on that as of

6    yet, and they are not going to be finished by the 11th.  If

7    need be, we will take a day or two break between the

8    government’s case and the defendant’s case and have all day

9    hearings.  If I need to do that, I will in terms of the video

10    deposition.

11             MR. MENDEZ:  A lot of the objections are standard

12    hearsay.  We have a smattering of the best evidence rule that

13    we hadn’t had to confront for a while.

14             THE COURT:  Speak for yourself.  I confront these all

15    the time.

16             Let’s set that as the scheduling.  The 28th then the

17    11th for the filing of the respective memorandum and brief.

18             Do you need a reply time?

19             MS. MILLER:  It is kind of hard to predict, Your

20    Honor.  We might file some reply but we could probably do it

21    promptly.  I don’t think our reply is going to be so point by

22    point intensive.

23             THE COURT:  Let’s say the 16th which would be that

24    Tuesday in the morning, which would then give you Friday,

25    Saturday, Sunday and Monday to file the reply.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1831

 

1             I am going to request for anything that is filed in

2    this matter, would you please let Mr. Norris know to not use

3    the night box only because it takes several days to get to me.

4    All filings should be done prior to the closing of the clerk’s

5    office at 4:30.

6             I don’t know what happened to Mr. Norris’ motion in

7    limine which was filed on Friday, it has not reached chambers

8    as of yet.

9             That is all I have.  Thank you for coming in on such

10    short notice.  I will see you tomorrow.

11                           o0o

12

13             I certify that the foregoing is a correct

14        transcript from the record of proceedings

15        in the above‑entitled matter.

16

17

18        ______             _______________________

19        Date               Official Court Reporter

20

21

22

23

24

25

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

 

1847

 

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

 

UNITED STATES OF AMERICA,             )    Docket No.

)    98‑721‑CR‑LENARD

Plaintiff,            )

)    Miami, Florida

  1.                    )    December 12, 2000

)

GERARDO HERNANDEZ,                    )

a/k/a MANUEL VIRAMONTEZ, ET AL.,      )

)

Defendants.           )

)

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x

VOLUME 10

 

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

and a Jury

 

 

 

APPEARANCES:

 

For the Government:              CAROLINE HECK MILLER, ESQ.

JOHN KASTRENAKES, ESQ.

DAVID BUCKNER, ESQ.

 

 

 

 

For the defendant Hernandez:     PAUL McKENNA, ESQ.

 

For the defendant Medina, III:   WILLIAM NORRIS, ESQ.

 

For the defendant Gonzalez:      PHILIP HOROWITZ, ESQ.

 

For the defendant Guerrero:      JACK BLUMENFELD, ESQ.

 

 

For the defendant Campa:         JOAQUIN MENDEZ, Esq.

 

 

 

 

 

Court Reporter:                  Richard A. Kaufman, C.M.R.R.

 

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1848

 

 

I N D E X

 

 

Direct  Cross       Red.  Rec.

 

 

WITNESSES FOR THE GOVERNMENT:

 

VICENTE M. ROSADO             1850     1878       1907

JULIO BALL                    1911     1938       1952

MICHAEL McAULIFFE             1953     1956

JOSEPH HALL                   1958

 

 

 

WITNESSES FOR THE DEFENDANTS:

 

 

 

 

EXHIBITS

 

GOVERNMENT                                 IN EVID.

 

Government’s Exhibit SG 46……………. 1851:11

Government’s Exhibit SG 45……………. 1852:8

Government’s Exhibit SG 60W and SG 60W‑1.. 1853:9

Government’s Exhibit SG 51……………. 1854:7

Government’s Exhibit SG 60V and SG 60V‑1.. 1856:15

Government’s Exhibit SH 25, SAV 62,

SC 20, SF 18, SLBC 103, SLBP 110, SLKW 108,

SS‑5……………………………….. 1863:9

Government’s Exhibit DAV 102S‑111S,

DAV 114S‑116S, DAV 118S‑122S, DAV 124S,

DAV 127S‑129S, DC 101S‑104S, DF 101S,

DL 101S‑104S and DS 101S‑103S………….. 1870:4

Government’s Exhibit HF 150……………. 1872:24

Government’s Exhibit HF 153……………. 1873:24

Government’s Exhibit 601………………. 1876:8

Government’s Exhibit SG 47…………….. 1906:14

 

Government’s Exhibit SC 19…………….. 1915:5

Government’s Exhibit SC 17A‑G………….. 1916:23

Government’s Exhibit SC 17A‑1‑17G‑1…….. 1917:5

Government’s Exhibit SC 1 and SC 1‑A……. 1920:10

Government’s Exhibit SC 3……………… 1921:8

Government’s Exhibit SC 15…………….. 1922:7

Government’s Exhibit SC4, SC 4A, SC 4B….. 1923:4

Government’s Exhibit SC 9……………… 1924:5

Government’s Exhibit 755 and 755A………. 1926:25

Government’s Exhibit SC 7 and SC 7A…….. 1928:11

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1849

 

 

 

EXHIBITS (Continued.)

 

 

Government’s Exhibit SC 5……………… 1931:1

Government’s Exhibit SC 10…………….. 1932:6

Government’s Exhibit SC 16…………….. 1935:12

Government’s Exhibit SC 8, SC 8A and B….. 1936:12

Government’s Exhibit SC14 AND SC 14A……. 1955:4

Government’s Exhibit SAV 57 and SAV 57A…. 1964:2

Government’s Exhibit SAV 56A‑X and

56A1‑X1……………………………… 1966:14

Government’s Exhibit SAV 16……………. 1978:14

Government’s Exhibit SAV 21……………. 1979:10

Government’s Exhibit 11 and 11A………… 1980:8

 

 

 

 

 

DEFENDANT’S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RICHARD A. KAUFMAN, CMRR

 

 

 

1850

 

1             (Open court.  Jury not present.)

2             THE COURT:  United States of America versus Gerardo

3    Hernandez, et al. Case Number 98‑721.

4             Would counsel state their appearances.

5             (All parties present.)

6             THE COURT:  The interpreters are also present for the

7    assistance to the defendants.

8             Are we ready to proceed?

9             MS. MILLER:  Yes.  May we have the witness on the

10    stand?

11             THE COURT:  That will be fine.

12             Bring in the jury.

13             (Jury present.)

14             THE COURT:  You are still under oath, Mr. Rosado

15    Thereupon ‑‑

16

17                    VICENTE M. ROSADO,

18    called as a witness herein, having been previously duly sworn,

19    was examined and testified further as follows:

20             THE COURT:  You may proceed, Ms. Miller.

21             MS. MILLER:  Thank you, Your Honor.  Good morning.

22                    DIRECT EXAMINATION

23    BY MS. MILLER:  (Continuing.)

24    Q.  Agent Rosado, you recall yesterday you were testifying

25    concerning a search that occurred of 18100 Atlantic Boulevard

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1851

 

1    Apartment 305 on September 12, 1998; do you recall that?

2    A.  Yes, ma’am.

3    Q.  Agent, you recall you observed and helped to seize during

4    that search some computer related equipment; do you recall

5    that?

6    A.  Yes, ma’am.

7             MS. MILLER:  May I have Exhibits 45, 46, 47 and 51.

8             All of these have the prefix SG.

9    BY MS. MILLER:

10    Q.  Agent, could you take a look for a moment at the photograph

11    in front of you marked as Government’s Exhibit SG 60M?

12    A.  Yes, ma’am.

13    Q.  Do you recognize that photograph?

14    A.  Yes, ma’am.

15    Q.  What is that a photograph of?

16    A.  It is a photograph of the closet in the Apartment 305

17    between the bedroom and the bathroom.

18    Q.  Is that the closet as you recall it on that day?

19    A.  Yes.

20             MS. MILLER:  The government offers 60M ‑‑

21             THE COURT:  Both of these exhibits are already in

22    evidence.

23             MS. MILLER:  Excuse me, Your Honor, I am sorry.

24             THE COURT:  It is okay.

25    Q.  Agent, what if any modems were discovered in that closet?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1852

 

1    A.  The one marked SG 46 was found there.  It is an MT Star

2    2400E modem.

3    Q.  Can you describe the modem in any other aspect?

4    A.  It is an external plastic encased computer modem.

5    Q.  Was that modem acquired in the search on September 12,

6    1998, Government’s Exhibit SG 46?

7    A.  Yes.

8             MS. MILLER:  The government moves it into evidence.

9             THE COURT:  It will be admitted as SG 46.

10                    (A document was received in

11             evidence as Government’s Exhibit SG 46.)

12    BY MS. MILLER:

13    Q.  Would you also take a look ‑‑ SG 46 was found where?

14    A.  In the closet.

15    Q.  As depicted in the photograph SG 60M?

16    A.  Yes, ma’am.

17    Q.  Would you please take a look at Government’s Exhibits SG 45

18    and tell us if you recognize that item?

19    A.  Yes, ma’am.

20    Q.  What is Government’s Exhibit SG 45?

21    A.  It is again, another pocket fax modem, Viva, V I V A brand.

22    Q.  What do you mean by pocket fax modem?

23    A.  It is a name they have given it.  It is an external modem,

24    but more compact.

25    Q.  Was that modem, Government’s Exhibit SG 45 also found in

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1853

 

1    the search in the apartment at 18100 Atlantic Boulevard

2    Apartment 305 on September 12, 1998?

3    A.  Yes.

4             MS. MILLER:  The government moves SG 45 into evidence.

5             THE COURT:  It will be admitted as Government’s

6    Exhibit SG 45.

7                    (A document was received in

8             evidence as Government’s Exhibit SG 45.)

9    BY MS. MILLER:

10    Q.  Agent, could you take a look at Government’s Exhibit

11    SG 60‑W also before you?

12    A.  Yes.

13    Q.  Do you recognize photograph SG 60W?

14    A.  Yes.

15    Q.  What do you recognize that photograph as showing?

16    A.  It is a shelf in the closet of the bedroom at Apartment

17    305.

18    Q.  Agent, if you could briefly point out on the placard what

19    bedroom you are talking about ‑‑

20             THE COURT:  Could you identify that by its number?

21             MS. MILLER:  SG 61A in evidence.

22    BY THE WITNESS:

23    A.  Yes, ma’am.  The bedroom being this room here and the

24    bedroom closet would be coming out of it.

25    BY MS. MILLER:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1854

 

1    Q.  Where were the shelves in that closet?

2    A.  I believe here and here and here.

3    Q.  Thank you.

4             MS. MILLER:  The government offers in evidence exhibit

5    SG 60W, a photograph and its enlargement, SG 60W‑1.

6             THE COURT:  They will be admitted as SG 60W and

7    SG 60W‑1.

8                    (A document was received in

9             evidence as Government’s Exhibit SG 60W and SG 60W‑1.)

10    BY MS. MILLER:

11    Q.  Agent, what was found on the shelf in the bedroom closet?

12    A.  Two laptop computers.

13    Q.  Are those depicted in the photograph?

14    A.  Yes, ma’am.

15    Q.  Are those the beige horizontal objects lying there on the

16    shelf?

17    A.  Yes, ma’am.

18    Q.  Do you see it is either of those computers in front of you

19    today?

20    A.  I see one of them.

21    Q.  Does it have an identification on it?

22    A.  Yes, ma’am.  It is Government’s Exhibit SG 51.

23    Q.  Can you describe Government’s Exhibit SG 51?

24    A.  It is a Sharp MZ 100, what is called a notebook computer.

25    It is heavy.  It is plastic.  It has a screen built in and no

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1855

 

1    hard drive.

2             MS. MILLER:  The government offers Government’s SG 51

3    into evidence.

4             THE COURT:  It will be admitted as Government’s

5    Exhibit SG 51.

6                    (A document was received in

7             evidence as Government’s Exhibit SG 51.)

8    BY MS. MILLER:

9    Q.  Was that item acquired during the search of September 12,

10    1998 at the apartment, 18100 Atlantic Boulevard Apartment 305?

11    A.  Yes, it was.

12    Q.  I believe you also have in front of you Government’s

13    Exhibit marked for identification SG 47?

14    A.  Yes, ma’am.

15    Q.  What is Government’s Exhibit SG 47?

16    A.  It is a box that ‑‑ for our traveler pocket fax modem.  It

17    has a telephone line cable, a manual and what appears to be a

18    power supply.

19    Q.  Thank you.

20             Let me ask you some questions about diskettes.

21             MS. MILLER:  If I could have SG 60F, G, I and V,

22    please.

23    BY MS. MILLER:

24    Q.  Did you collect diskettes on September 12, 1998?

25    A.  Yes, ma’am.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1856

 

1    Q.  Where were they located in general ‑‑ approximately how

2    many diskettes did you recover on September 12, 1998?

3    A.  I don’t have the exact number, but I believe somewhere

4    around 280 to 290 diskettes.

5    Q.  Where were these diskettes found, not one by one, but if

6    you can give us a general idea where in the apartment you found

7    them?

8    A.  A great majority of them were on the dining room table.

9    Some on the floor, some on the love seat, some on the closets

10    as previously discussed between the bedroom and the bathroom,

11    which would be the hallway, and some in the bedroom on the desk

12    and some of the drawers of the night stands or dressers.

13    Q.  Agent, I am placing on the easel and will place on the

14    viewer Government’s Exhibit SG 60G‑1 already in evidence.

15             THE COURT:  Is this in evidence?

16             MS. MILLER:  Yes, 60G and 60G‑1.

17    BY MS. MILLER:

18    Q.  Is this the table you were talking about?

19    A.  Yes, the dining room table.

20    Q.  Were there some disks that were strewn about the table?

21    A.  Yes.

22    Q.  Was there one that was recovered from the floor?

23    A.  Yes, ma’am, right by the leg.

24    Q.  Is that what I am pointing to here?

25    A.  Yes, ma’am.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1857

 

1    Q.  Agent, I am now going to hand you what has been marked for

2    identification purposes as photograph 60V and ask if you

3    recognize that photograph?

4    A.  Yes, ma’am.  It shows part of the bedroom area, part of the

5    closet off the bedroom.  It also shows part of the desk that

6    was in the bedroom.

7    Q.  Do you recognize that as a true and accurate reproduction

8    of the apartment as you saw it on September 12, 1998?

9    A.  Yes, ma’am.

10             MS. MILLER:  The government offers SG 60V and SG 60V‑1

11    in evidence.

12             THE COURT:  They will be admitted into evidence as SG

13    60V and SG 60V‑1 in evidence.

14                    (A document was received in

15             evidence as Government’s Exhibit SG 60V and SG 60V‑1.)

16             MS. MILLER:  If I may put up the placard.

17             THE COURT:  You may.

18    BY MS. MILLER:

19    Q.  Does this photograph show any other diskettes you recovered

20    that day?

21    A.  Yes, ma’am.  In the left‑hand corner of the desk there were

22    some diskettes.

23    Q.  Were they on the desk?

24    A.  Yes.

25    Q.  Was there anything under the surface of the desk?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1858

 

1    A.  No, not that I ‑‑ in this area.

2    Q.  What is this I am pointing to right here?

3    A.  That is one of the shelves on the desk.

4    Q.  Was there a plastic compartment or a pocket in that desk?

5    A.  Yes.  A plastic box.

6    Q.  Is that visible in this photograph?

7    A.  Yes, ma’am.  It is holding diskettes.

8    Q.  Am I pointing to it now?

9    A.  No, ma’am.  Right there.

10    Q.  Thank you.  Agent, what did you do with all the diskettes

11    you collected from the apartment on that day?

12    A.  As I selected them, I write protected them and basically

13    put them into containers to carry them to the FBI office.

14    Q.  Did you label them?

15    A.  Yes, ma’am.

16    Q.  Were these diskettes used by you to make copies from which

17    you worked?

18    A.  Yes, ma’am.

19    Q.  Were your copies true and accurate copies of the files as

20    they appeared on the disks that were collected during the

21    search?

22    A.  Yes, ma’am.

23    Q.  Agent, on September 12, 1998, did you have some duties in

24    addition to your duties in relationship to conducting the

25    search at one particular apartment, 18100 Atlantic Boulevard?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1859

 

1    A.  Please ask the question again?

2    Q.  Did you have duties in addition to collecting items

3    yourself at a particular search location?

4    A.  Yes, ma’am.  I was also coordinating numerous searches

5    throughout South Florida.

6    Q.  When you say you were coordinating them, was there a

7    particular aspect of these additional searches you were

8    coordinating?

9    A.  Yes, ma’am.  I was in charge of assigning other CART

10    members from FBI headquarters laboratory and in Tampa and the

11    Miami division, assignments as to where to go and to conduct

12    searches.

13    Q.  The searches that these other agents were conducting, were

14    they conducted pursuant to search warrants?

15    A.  Yes, ma’am.

16    Q.  In order to carry out these coordination facilities, did

17    you prepare any labels?

18    A.  Yes, ma’am.  I basically set up labels by file numbers and

19    sequentially numbered them 1 through 400.

20    Q.  All of the labels or for each file number?

21    A.  For each ‑‑ well, some of the people who lived together

22    received the same label.  Two file numbers to the same label.

23    Q.  When you speak of a file number, does a file number

24    correspond to a location or an individual?

25    A.  To an individual.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1860

 

1    Q.  In some instances, there was one location that housed more

2    than one individual; is that correct?

3    A.  Yes, ma’am.

4    Q.  With regard to those labels, were both file numbers on the

5    same label?

6    A.  Yes, ma’am.

7    Q.  Is that because they were going to be used for a search of

8    a single location?

9    A.  Yes, ma’am.

10    Q.  Were there other individuals for whom there was more than

11    one location?

12    A.  Yes, ma’am, there was.

13    Q.  Could you tell us, please, what were the search sites that

14    you prepared labels for, if not the street addresses, the

15    search sites in conjunction with individuals?

16    A.  Alejandro Gonzalez, Rene Gonzalez, Nilo and Linda

17    Hernandez.

18    Q.  Was that one search for both, Nilo and Linda?

19    A.  Yes.

20    Q.  They are a married couple?

21    A.  Yes.

22    Q.  What is the search sites for Alejandro Alonso, Rene

23    Gonzalez and the Hernandez couple?

24    A.  The South Miami area.

25    Q.  Please continue.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1861

 

1    A.  Antonio Guerrero, three locations, Key West, Boca Chica and

2    Big Pine Key.

3    Q.  All in Monroe County?

4    A.  Yes.  There was also ‑‑ I am blocking out on Santos first

5    name.  Amarylis Santos and her husband.

6    Q.  There was a Mr. and Mrs. Santos?

7    A.  Yes, ma’am.  They were in South Florida.  Then the royal

8    sovereign subject and the rough treatment and Vicky, which

9    would be Campa and Medina.

10    Q.  When you mentioned royal sovereign, that relates to the

11    search you conducted?

12    A.  Yes, ma’am.

13    Q.  When you mention Campa and Medina, is that one search site

14    or two?

15    A.  It was one search site.

16    Q.  Do you remember that location?

17    A.  1776 Polk Street Apartment 3G.

18    Q.  That was one of the apartments you had previously searched

19    with regard to searches that you testified to yesterday?

20    A.  Yes, ma’am.

21    Q.  So the 1776 Polk Street search also had a label that

22    reflected file numbers for two individuals; is that correct?

23    A.  Yes, ma’am.

24    Q.  What did you do with these labels?

25    A.  I assigned them to a particular representative of the CART

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1862

 

1    program.

2    Q.  When you say you assigned them.  Did you physically deliver

3    them?

4    A.  Yes, I did.

5    Q.  Did each CART member then have a set of labels for the site

6    that that CART member was going to be searching?

7    A.  Yes, ma’am.

8    Q.  Were those labels unique to each individual site?

9    A.  Yes, ma’am, they were.

10    Q.  Following the searches of September 12, 1998, did you

11    observe or receive any items that bore these labels?

12    A.  Yes, I did.

13    Q.  What were these items?

14    A.  The items found at searches at these particular addresses,

15    diskettes, CDs.  I don’t believe they labeled the computers.

16    Q.  Not with your labels?

17    A.  Not with my labels.  The instructions were label the

18    diskettes and any computer media.

19    Q.  Did you observe computer media with those labels?

20    A.  Yes, I did.

21    Q.  Agent, I have placed before you some large sheets which

22    have been grouped and marked for identification by the groups

23    as SH 25 composite, SAV 62 composite, SC 20, SF 18 composite,

24    SLBC 103 composite and SLBP 110 composite, SLKW 108 composite

25    and SS‑5 composite?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1863

 

1    A.  Yes.

2    Q.  Do you recognize those packages?

3    A.  Yes, ma’am.

4    Q.  Have you reviewed those packages earlier than today in

5    Court?

6    A.  Yes, I have.

7    Q.  Can you tell us generally what those packages are?

8    A.  They are basically photographs of the backs of the computer

9    disks that were seized at the different locations on September

10    12.

11    Q.  Are they photographs or color photocopies if you know?

12    A.  Color photocopies.

13    Q.  Are they true and accurate reproductions of the actual

14    plastic disks?

15    A.  Yes, they are.

16    Q.  Have you viewed the actual plastic disks yourself?

17    A.  Yes.

18    Q.  Do the photocopies show the side of the disk that bear the

19    labels?

20    A.  Yes, they do.

21    Q.  Do you recognize among these exhibits the labels that you

22    prepared and distributed that day?

23    A.  Yes.

24             MS. MILLER:  The government offers into evidence

25    exhibits just identified, SH 25 composite, SAV 62 composites,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1864

 

1    SC 20, SF 18 composite, SLBC 103 composite, SLBP 110 composite,

2    SLKW 108 composite and SS‑5 composite.  They are offered in

3    evidence.

4             THE COURT:  They will be admitted as Government’s

5    Exhibits SH 25 composite, SAV 62 composite, SC 20, SF 18

6    composite, SLBC 103 composite, SLBP 110 composite, SLKW 108

7    composite and SS‑5 composite into evidence.

8                    (A document was received in

9             evidence as Government’s Exhibit SH 25, SAV 62,

10             SC 20, SF 18, SLBC 103, SLBP 110, SLKW 108, SS‑5.)

11    BY MS. MILLER:

12    Q.  Agent, with regard to the three and a half inch diskettes

13    depicted in those color photocopies, what did you personally do

14    with those diskettes?

15    A.  I copied them, I placed them back into evidence, then I

16    worked off of my copies much like yesterday, to break out

17    material that was hidden within.

18    Q.  When you saw the disks after they had been collected in the

19    searches, were they already write protected?

20    A.  I would say 99 percent of them were.

21    Q.  Is that a standard practice for CART members to write

22    protect them when they were found?

23    A.  It is my standard practice, yes.

24    Q.  You told us that you worked with copies made from these

25    disks.  Were these copies true and accurate copies of the files

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1865

 

1    found on those disks?

2    A.  Yes, they were.

3    Q.  You also told us you worked with them to break them out

4    into plain text, much as you described yesterday; is that

5    correct?

6    A.  Yes, ma’am.

7    Q.  I have placed before you three notebooks.  Are these the

8    same notebooks you were working with yesterday, they had little

9    red stickers put on the back of them?

10    A.  Correct, and the bottoms have been changed.  They are no

11    longer CMH.

12    Q.  The ones you looked at yesterday had the initials CMH?

13    A.  Yes.

14    Q.  The ones you see here today, are they an exact reproduction

15    of the ones you looked at yesterday?

16             THE COURT:  Do they have an evidence number on them?

17    Can we identify them?

18             MS. MILLER:  This is the composite of the notebooks.

19    I do have a printed list of all the exhibits that appear

20    therein.

21             THE COURT:  What is the exact exhibit number of these

22    three notebooks?

23             MS. MILLER:  The notebooks themselves were not given a

24    number.  They contain numbered exhibits.  We can give the

25    notebooks a number as well.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1866

 

1             This is a list of the contents of the books.

2             THE COURT:  Is it divided by volume?

3             MS. MILLER:  It is.

4    BY MS. MILLER:

5    Q.  Agent, the books you had in front of you yesterday were a

6    different physical set than the ones you have in front of you

7    today?

8    A.  Yes.

9             MS. MILLER:  In light of that, I would like to take a

10    moment and confirm the contents of the books because these

11    books are the ones that will be the exhibits.

12             THE COURT:  You may proceed.

13    BY MS. MILLER:

14    Q.  Agent, could you look through the books and the tabs with

15    me as we go through the numbers to confirm your books have

16    these contents.

17             Volume 1, DA 101, DAV 102, DAV 103, DAV 104, DAV 105,

18    DAV 106, DAV 107, DAV 108, DAV 109, DAV 110, DAV 111, DA 113,

19    DAV 114, DAV 115, DAV 116, DA 117, DAV 118, DAV 119, DAV 120,

20    DAV 121, DAV 122, DA DA 123, DAV is 24, DA 125, DA 126, DAV

21    127, DAV 128, DAV 129, DC 101, DC 102, DC 103, DC 104, DF, 101.

22             Is that a correct recitation of the contents of volume

23    1?

24    A.  Yes.

25    Q.  Could you turn to volume 2.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1867

 

1             DG 101, DG 102, DG 103, DG 104, DG 105, DG 106, DG

2    107, DG 108, DG 109, DG 110, DG 111, DG 112, DG 113, DG 114, DG

3    115, DG 116, DG 117, DG 118, DG 119, DG 120.

4             Is that a correct recitation of the contents of volume

5    2?

6    A.  Yes, ma’am.

7    Q.  Finally, volume 3.

8             DG 121, DG 122, DG 123, DG 124, DG 125, DG 126, DG

9    127, DG 128, DG 129, DG 130, DG 131, DG 132, DG 133, DG 134, DG

10    135, DG 136, DG 137, DG 138, DG 139, DG 140, D H O 101, D H O

11    103, DL 101, DL 102, DL 103, DL 104, DS 101, DS 102, DS 103.

12             Is that a correct recitation of the contents of volume

13    3?

14    A.  Yes, ma’am, it is.

15    Q.  Of the exhibits that are in those three notebooks, Agent

16    Rosado, some were acquired in the searches that you testified

17    about yesterday that occurred prior to September 12, 1998; is

18    that correct?

19    A.  That is correct.

20    Q.  Some were acquired in the search that you conducted

21    yourself at the apartment at 18100 Atlantic Boulevard; is that

22    correct?

23    A.  Yes, ma’am.

24    Q.  The remainder of the exhibits in those books, were they

25    acquired at these other searches that you told us about that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1868

 

1    are reflected in the disks that are shown in those color

2    photocopies?

3    A.  Yes, ma’am.

4    Q.  Are those exhibits the following ones ‑‑

5             MS. MILLER:  I do have another list that is of an

6    excerpt and I have it written out and if I may hand it to the

7    Court and the court reporter and the other personnel?

8             THE COURT:  You may.

9    BY MS. MILLER:

10    Q.  Agent, are these the exhibits contained in those three

11    notebooks that were acquired by searches September 12, 1998 at

12    other sites than 18100 Atlantic Boulevard?

13    A.  Yes, ma’am.

14    Q.  DAV 102, DAV 103, DAV 104, DAV 105, DAV 106, DAV 107, DAV

15    108, DAV 109, DAV 110, DAV 111, DAV 114, DAV 115, DAV 116, DAV

16    118, DAV 119, DAV 120, DAV 121, DAV 122, DAV 124, DAV 127, DAV

17    128, DAV 129, DC 101, DC 102, DC 103, DC 104, DF 101.  DL 101,

18    DL 102, DL 103, DL 104.  DS 101, DS 102, DS 103.

19             Are those the exhibits that appear in those three

20    notebooks acquired September 12, 1998 that were acquired from

21    disks seized September 12, 1998 at other locations.

22    A.  Yes, ma’am.

23    Q.  Do they have the same format that you testified about

24    yesterday?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1869

 

1    Q.  Are they word for word depictions of the files as you broke

2    them out?

3    A.  Yes, ma’am, except for the removed items which are marked

4    double lines with omitted text inserted therein.

5    Q.  Returning your attention to Government’s Exhibit D1 in

6    evidence from yesterday, that being your chart, does that chart

7    truly and accurately reflect the means that you used to decrypt

8    or to break out or to read each of the referenced exhibits?

9    A.  Yes, ma’am, it does.

10             MS. MILLER:  If we could have the monitors on, please.

11    BY MS. MILLER:

12    Q.  On the monitor I have placed a copy of Exhibit D1 and does

13    it show for each exhibit again the retrieval means in the

14    fourth column?

15    A.  Yes, ma’am, the disk number and the disk name that I used.

16    Q.  For instance, with some of the ones you just told us about

17    such as DL 101, does it show that a retrieval means was disk

18    LBPF 67?

19    A.  Yes, ma’am, it does.

20    Q.  What do those initials LBPF stand for?

21    A.  Lorient Big Pine F standing for September 12 and the disk

22    number 67.

23    Q.  Down below it, does it have a retrieval means for DL 102

24    that is LKWF?

25    A.  Yes, ma’am.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1870

 

1    Q.  What do those initials stand for?

2    A.  Lorient, Key West, F September 12th again and disk number

3    10.

4    Q.  For another one of these exhibits you told us about DS 102

5    down towards the bottom, what does it show under retrieval

6    means?

7    A.  Plain text.

8    Q.  What does that indicate?

9    A.  Again, it means that the file was just available for

10    viewing.

11    Q.  That particular file was not encrypted?

12    A.  That is correct.

13             MS. MILLER:  The government offers the previously

14    recited list of exhibits into evidence.

15             MR. MENDEZ:  No objection.

16             THE COURT:  They will be admitted as Government’s

17    Exhibits DA 101, DAV 102 ‑‑

18             MS. MILLER:  Excuse me, Your Honor.  I was referring

19    to the last list.  This is the shorter list, the one that

20    begins DAV 102.

21             THE COURT:  They will be admitted as Government’s

22    Exhibits DAV 102 through DAV through 111, DAV 114, DAV 115, DAV

23    116, DAV 118, DAV 119, DAV 120, DAV 121, DAV 122, DAV 124, DAV

24    127, DAV 128, DAV 129, DC 101 through 104, DF 101, DL 101

25    through DL 104, and DS 101 through 103.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1871

 

1             MS. MILLER:  Since they are in Spanish they are all

2    have the suffix S.

3                    (A document was received in

4             evidence as Government’s Exhibit DAV 102S‑111S,

5             DAV 114S‑116S, DAV 118S‑122S, DAV 124S, DAV 127S‑129S,

6             DC 101S‑104S, DF 101S, DL 101S‑104S AND DS 101S‑103S.)

7    BY MS. MILLER:

8    Q.  What does DAV stand for?

9    A.  D stands for disk.  AV is the Allan Vicky search, the rough

10    treatment and Mandrake search, 1776 Polk Street.

11    Q.  What about the disk that have the abbreviation DC.  what

12    does that stand for?

13    A.  Disk and seize Castor, again received on September 12.

14    Q.  What about the disk that has the prefix DF, what does the F

15    stand for?

16    A.  Franklyn.

17    Q.  Does that relate to a location?

18    A.  Yes, it does.  It is the Alonso search, Alejandro Alonso.

19    Q.  What about the disks that have the abbreviation DL, what

20    does that stand for?

21    A.  It stands for Lorient.

22    Q.  Were those all from Monroe County?

23    A.  Yes, ma’am, three different locations.

24    Q.  What about the abbreviation DS, what does that stand for?

25    A.  That would be the Santos residence.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1872

 

1             MS. MILLER:  If I may remove the notebooks.

2             THE COURT:  You may.

3    BY MS. MILLER:

4    Q.  Are you acquainted with a gentleman by the name of Ken

5    Hart?

6    A.  Yes, I am.

7    Q.  Who is Ken Hart?

8    A.  A senior computer specialist at FBI headquarters

9    laboratory, Computer Analysis Response Team.

10    Q.  Is he who you worked with?

11    A.  Yes.

12    Q.  Did you meet with Ken Hart on October 17 and 18th of this

13    year?

14    A.  Yes, I did.

15    Q.  Did you bring him copies of certain disk files from the

16    various searches you have been testifying about?

17    A.  Yes, I did.

18    Q.  Did you also bring him copies of other disks?

19    A.  Yes, ma’am.

20    Q.  Did Mr. Hart end up labeling these disks somehow with using

21    his own labels?

22    A.  Yes, he applied to them a laboratory number and his

23    initials and a Q number, standing for questioned item.

24    Q.  Is that a standard practice among laboratory examiners to

25    assign a Q number to items they are looking at?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1873

 

1    A.  Yes.

2    Q.  Even if they already have a label that has come from some

3    other source?

4    A.  Yes.

5    Q.  You have in front of you an item marked for identification

6    purposes as HF 150; do you see that item?

7    A.  Yes.

8    Q.  What is HF 150, can you describe it to us?  It looks like a

9    large piece of paper?

10    A.  It is basically a photocopy of the front of a floppy that I

11    ferried up to Mr. Hart.

12    Q.  When you say a floppy, are you talking about a three and a

13    half inch floppy diskette?

14    A.  Yes, ma’am.

15    Q.  Do you recognize that photocopy as of a disk that you

16    recognize?

17    A.  Yes.

18    Q.  Has that disk been given a Q number of any kind?

19    A.  Q 46.

20             MS. MILLER:  The government offers in evidence HF 150.

21             THE COURT:  It will be admitted into evidence as

22    Government’s Exhibit HF 150.

23                    (A document was received in

24             evidence as Government’s Exhibit HF 150.)

25    BY MS. MILLER:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1874

 

1    Q.  I would also ask you to take a look at Government’s 153 and

2    tell us if you recognize that item?

3    A.  Yes, ma’am, I do.

4    Q.  What is Government’s Exhibit 153?

5    A.  It is a photocopy of the fronts of diskettes which I also

6    ferried up to Mr. Hart and they are copies of diskettes from

7    various searches.

8    Q.  Did those copies come from various different places?

9    A.  Yes, ma’am.

10    Q.  Have you examined all of those copies yourself?

11    A.  Yes.

12    Q.  Are those copies true and accurate copies of the disk files

13    as they appear on the disks that were gathered in the searches

14    you have testified to?

15    A.  Yes, ma’am, they are.

16    Q.  How many disks are depicted in HF 153?

17    A.  Six.

18    Q.  Did they receive Q labels?

19    A.  Yes, they did, each one has.

20             MS. MILLER:  The government offers 153 into evidence.

21             THE COURT:  It will be admitted as Government’s

22    Exhibit HF 153.

23                    (A document was received in

24             evidence as Government’s Exhibit HF 153.)

25    BY MS. MILLER:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1875

 

1    Q.  What are the Q numbers that are assigned in Exhibit 153?

2    A.  Q 16, Q 18, Q 39, Q 41, Q 42 and Q 59.

3    Q.  Agent, were you able to correlate those Q numbers with file

4    names or numbers that you were utilizing for the identical

5    files that appeared on those disks but were numbers and labels

6    that corresponded to your naming convention for the searches

7    you testified about?

8    A.  Yes, ma’am.

9    Q.  Have you reflected that correlation of your file numbers

10    for the disks with the Q numbers in any chart?

11    A.  Yes, ma’am.  I prepared a chart which you have labeled as

12    HF 152.

13    Q.  Do you have 152 in front of you at this point?

14    A.  Yes, I do.

15    Q.  This chart has how many columns of information?

16    A.  Five columns.

17    Q.  I am going to ask you to just examine the two right‑hand

18    columns, if you might.

19             The fourth column is labeled what?

20    A.  Tools used to decrypt.

21    Q.  Does that fourth column state certain of these lab Q

22    numbers from this group of six you just told us about?

23    A.  Yes, ma’am.

24    Q.  In that column, is there also an additional description of

25    the disk that is reflected by that Q number?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1876

 

1    A.  Yes.  I have basically taken the Q number that Mr. Hart

2    identified or labeled it as and identified it as the disk which

3    was attached to him.

4    Q.  Is it correct that column four represents a correlation of

5    Mr. Hart’s Q numbers with your labels and labeling system for

6    the disks as they were retrieved in the searches?

7    A.  Yes, ma’am.

8    Q.  What about the fifth column on the far right‑hand side, is

9    that a column you are familiar with?

10    A.  Yes,ma’am.  It is basically where the diskette came from

11    and how we came to get it.

12    Q.  When you say “where,” you are talking about what particular

13    location?

14    A.  Yes, and how.

15    Q.  When you say “how,” are you talking about what particular

16    search it was acquired in?

17    A.  Yes.

18    Q.  Does it give the date of that search?

19    A.  Yes.

20    Q.  Does column five then provide an indication of the date and

21    the place at which each of the disks that was the tool used to

22    decrypt, was acquired?

23    A.  Yes, ma’am.

24             MS. MILLER:  I will not offer the exhibit at this

25    time, but although a document was offered yesterday, I don’t

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1877

 

1    believe I offered it.  It was 601.

2             THE COURT:  Are you moving that into evidence at this

3    time?

4             MS. MILLER:  Yes.  I wanted to bring out the exhibit

5    in case anybody wanted to see it again.

6             THE COURT:  It will be admitted into evidence as 601.

7                    (A document was received in

8             evidence as Government’s Exhibit 601.)

9             MR. BLUMENFELD:  I have it in yesterday.

10             THE COURT:  It was not moved into evidence.

11             MS. MILLER:  That completes my questions for

12    Mr. Rosado.

13             I have prepared a list of the exhibits that I believe

14    have been entered through this witness.  I just wanted to use

15    that as a check.  It is somewhat lengthy.  I don’t know if the

16    Court wanted to take the moment now to do it on the record ‑‑

17             THE COURT:  Do you have a copy for me?

18             MS. MILLER:  Yes.

19             THE COURT:  Just give me a copy and I will confirm it

20    and I will indicate whether you are correct.

21             MS. MILLER:  Subject to the issue of making sure all

22    of those exhibits have been properly moved into evidence, I

23    have no further questions of Mr. Rosado.

24             THE COURT:  Mr. McKenna?

25             MR. McKENNA:  No questions.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1878

 

1             MR. BLUMENFELD:  No questions.

2             MR. MENDEZ:  I have a few, Your Honor.

3             THE COURT:  You may proceed.

4                    CROSS EXAMINATION

5    BY MR. MENDEZ:

6    Q.   Agent Rosado, I would like to ask you some questions about

7    what occurred on August 5, 1996.

8    A.  Yes.

9    Q.  That was the date in which you participated in the

10    surreptitious search of the home or apartment located at 965

11    Biarritz Drive?

12    A.  Yes, it is.

13    Q.  Was that a home or apartment?

14    A.  It was an apartment.

15    Q.  You were there that day?

16    A.  Yes, sir.

17    Q.  I believe that search was described as a surreptitious

18    search?

19    A.  Yes, sir.

20    Q.  That is because the law enforcement agents that accompanied

21    you and you went into the home and did your work and left

22    without take ‑‑ taking whatever steps you could to make sure

23    the occupant didn’t know you were there?

24    A.  That is correct.

25    Q.  As opposed to the searches that took place on September 12,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1879

 

1    1998 which took place right about the time the defendants were

2    arrested and everyone knew the home was being searched because

3    of the arrest; is that correct?

4    A.  Correct.

5    Q.  I believe you said when you are involved in the

6    surreptitious search of a home, I think your words were, you do

7    your best not to leave a trail behind; is that correct?

8    A.  That is correct, sir.

9    Q.  Again, because you don’t want to scare away the people

10    whose property you are looking through; correct?

11    A.  Actually you don’t want to make them aware we are looking

12    at it.

13    Q.  Because you are concerned if they know the FBI or someone

14    else is snooping around their homes, they may pack up and

15    leave?

16    A.  That is correct.

17    Q.  The goal is to do this, to do your chore as cleanly as

18    possible to avoid tipping off the suspect his or her property

19    is being looked at?

20    A.  Yes, sir.

21    Q.  On August 5, 1996, you did leave a trail behind; didn’t

22    you?

23    A.  Yes, I did.

24    Q.  You told us something went wrong and some disks were copied

25    onto the disk that belonged to the person that was occupying

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1880

 

1    the apartment?

2    A.  Yes.

3    Q.  Will you tell us exactly what happened?

4    A.  I failed to write protect the diskettes and I copied the

5    first diskette on to the next, I believe twelve diskettes.

6    Q.  I believe you told us that mistake was not the result of a

7    mechanical error; is that correct?

8    A.  It was a human error on my part.

9    Q.  Because it was one of the first few times you were working

10    with this equipment?

11    A.  It was the first time.

12    Q.  What you did was, was copy some information that had been

13    contained on one disk onto twelve other disks that had to be

14    left behind otherwise the person would have missed them?

15    A.  That is correct.

16    Q.  For example, if we take as an example the little nursery

17    rhymes that we worked with the other day, what you did

18    essentially was copy those little nursery rhymes onto disks

19    that had not previously contained those nursery rhymes; is that

20    correct?

21    A.  I copied information that was previously in the apartment

22    onto other ‑‑ correct.

23    Q.  Whatever information was copied on to the twelve other

24    disks.

25    A.  Correct.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1881

 

1    Q.  Was any information that had been on any of those disks

2    deleted as a result of what you described as your mistake?

3    A.  Yes.

4    Q.  There was also information deleted; correct?

5    A.  Yes, I would say so.

6    Q.  That is another trail that was left behind that day; is

7    that correct?

8    A.  Yes.

9    Q.  Did anything else go wrong that day that left additional

10    trails?

11    A.  No.

12    Q.  How about on some of the other surreptitious entries you

13    were involved with, did you or to the best of your knowledge

14    anyone with you again inadvertently leave any signs of

15    tampering behind?

16    A.  Not to the best of my recollection.  I believe at the rough

17    treatment residence, a light switch was broken.

18    Q.  That is the residence that has been identified as

19    Mr. Medina’s apartment?

20    A.  Yes.

21    Q.  Was there any attempt made to fix that light fixture to

22    avoid leaving that kind of sign behind?

23    A.  It was a dimmer switch that just was not available at that

24    hour of the night.

25    Q.  But someone did try to go out and replace it; is that

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1882

 

1    right?

2    A.  No, we did not.

3    Q.  Given the time of day, it was decided it would be

4    impossible?

5    A.  That is correct.

6    Q.  Let me ask you a couple of questions about what happened on

7    January 14, 1997.  Do you have that date in mind?

8    A.  Could I see your form over there?

9    Q.  First of all, let me show you what has been introduced into

10    evidence as 650 A and I will ask you questions what happened on

11    February 14, 1997.

12    A.  Okay, sir.

13    Q.  Does that refresh your recollection?

14    A.  Yes.

15             MS. MILLER:  Counsel a moment ago said January 14.  I

16    want to make sure we have the right date.

17             MR. MENDEZ:  I do mean January but this table

18    apparently has a mistake.

19    BY MR. MENDEZ:

20    Q.  Would it help you answer questions what happened at the

21    individual entries to refer to some notes?

22    A.  Please.

23    Q.  Do you have them with you today?

24    A.  I believe I returned them to counsel.

25             Which would you like, sir?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1883

 

1    Q.  February 14, 1997.

2             On that date you participated in the surreptitious

3    entry and the photocopying of documents or disks at the

4    apartment described as belonging to Mr. Viramontez?

5    A.  Yes.

6    Q.  How many disks did you copy that day?

7    A.  121.

8    Q.  Were there any technical problems that resulted in the

9    failure to copy other disks that day?

10    A.  Yes, sir.

11    Q.  What were those problems?

12    A.  Whether a machine missfeeding or a machine not liking it.

13    Q.  So you attempted to copy 125 and you were only able to copy

14    121; is that correct?

15    A.  I believe that is correct.

16    Q.  That was a mechanical problem?

17    A.  I believe so.

18    Q.  Did that leave a sign that tampering had been done with the

19    disks?

20    A.  No, sir.

21    Q.  Not to your knowledge?

22    A.  No, sir.

23    Q.  I would like to ask you a few questions about the number of

24    disks you actually copied during the course of your involvement

25    in this case?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1884

 

1    A.  Okay.

2    Q.  Of course you can refer to your notes if you need to and I

3    think you will need to look through your notes.

4             Do you remember Ms. Miller asking you about the number

5    of disks you copied during the time covered by that chart?

6    A.  Yes, sir.

7    Q.  Would it help you to be more specific about the number of

8    disks that you copied to look at your notes?

9    A.  Yes.

10    Q.  Would you bear with me and try to do that with me, and

11    let’s look at the entry into the home on August 5, 1996?

12    A.  Okay.

13    Q.  Can you tell us how many disks you copied that day?

14    A.  135.

15    Q.  Was there some confusion whether it was 135 or 136?

16    A.  Just a moment, please.

17             My apologies, 136.

18    Q.  You did say 136.  I asked you if there was some confusion

19    whether there was 135.  If you look at paragraph 4A of your

20    notes, I would ask you if that refreshes your recollection

21    about that?

22    A.  I do, but if you read further, the second line says another

23    diskette was copied.

24    Q.  So based on your review of your records, it is your

25    recollection that you copied 136 that day?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1885

 

1    A.  Yes, sir.

2             MR. MENDEZ:  I would like to use the monitor, Your

3    Honor.

4    BY MR. MENDEZ:

5    Q.  I will put here 136 for August 5, 1996; okay?

6    A.  Yes, sir.

7             MS. MILLER:  This is not an item of evidence.  I

8    object.

9             MR. MENDEZ:  We will go right through it.

10             THE COURT:  Come up, please.

11             (Side bar.)

12             THE COURT:  What is it you are showing him?

13             MR. MENDEZ:  I will have him ‑‑

14             THE COURT:  Tell me what you are showing him?

15             MR. MENDEZ:  My calculation of the numbers and he will

16    sign off and correct me if I am mistaken.  This will be to

17    illustrate the number of disks copied at each individual entry.

18    It is not being introduced until he signs it off and I will

19    introduce it in my case‑in‑chief but I want to have the numbers

20    in black and white rather than all these numbers floating in

21    the air until he could get his hands on it.

22             MS. MILLER:  I object.  First of all I object to using

23    an item to be shown to the jury not in evidence.

24             Second of all, if counsel wants to go through that

25    exercise with the witness, I think he has to do that with the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1886

 

1    witness on the stand, not displaying it to the jury until it

2    becomes qualified to become an item of evidence.

3             Furthermore, I have never seen this until this moment.

4    If counsel is tendering it as an exhibit, there is a discovery

5    issue as well.  Even a few moments to look at the documents

6    would be helpful.

7             In addition, counsel has asked that I provide to the

8    agent so he could refresh his recollection the numbers the

9    agent was using.  I don’t even have a set of numbers now, so I

10    am really at a disadvantage following what counsel is doing.

11    Obviously he has worked something up and he is entitled to go

12    through it but if he is going to use it as an exhibit, he has

13    to provide to me in advance or give me some opportunity to look

14    at it.

15             MR. MENDEZ:  I can ask him the number and write it out

16    or if I can do it this way.

17             THE COURT:  Why don’t you show Ms. Miller what you are

18    utilizing, the document you just put before the jury not in

19    evidence.

20             MR. MENDEZ:  It is not complete until he tells us.

21             THE COURT:  Mr. Mendez, show her the document.  You

22    are showing it to the jury, she is certainly entitled to see

23    it.

24             MR. MENDEZ:  The numbers I am relying on are the

25    numbers that are contained in this gentleman’s report which we

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1887

 

1    were provided as Jencks.

2             THE COURT:  Why don’t we do this.  Let’s take a break.

3    You can look at the document.

4             If he was going to make a chart and have the agent,

5    the witness, state the numbers and write it on a chart, he

6    would be able to do that in front of the jury.  Let’s give you

7    an opportunity to look at the numbers and if you have an

8    objection to him proceeding this way where he has already

9    written it out and is going to change it as the witness

10    testifies if there is any change, you can let me know.

11             MR. MENDEZ:  My point was to slide the paper out as we

12    get the number.

13             THE COURT:  I have been very generous when there has

14    been a request to turn on the monitors.  Do not put something

15    on the Elmo that is not in evidence.  I will require you to

16    identify it just for this reason that an item that is not in

17    evidence, or at least should be shown to counsel prior to the

18    time you are utilizing it so she understands what is happening

19    and vice versa, should not be shown to the jury so we don’t

20    have these kinds of problems.

21             I will keep them off all the time and you will need to

22    detail it.

23             I am trying to have this matter move smoothly and

24    efficiently and as quickly as we can under the circumstances

25    but if I need to slow it down and make sure, I will.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1888

 

1             MS. MILLER:  Ordinarily I wouldn’t be talking to a

2    witness while he is on cross.  I would like to find out if he

3    has his own set of notes so I could get my set back.

4             As I said, I don’t have a set of the statements.

5             THE COURT:  Does somebody else have a set of notes?

6             MR. McKENNA:  I have his Jencks.

7             MR. HOROWITZ:  He could use my set.

8             THE COURT:  Whatever way you work it out.

9             (Open court.)

10             THE COURT:  We will take a break at this time.

11             Do not discuss this case amongst yourselves or anyone

12    else.  Have no contact with anyone whatsoever associated with

13    the trial.  Do not read or listen to anything touching on this

14    matter in any way.  Be back in the jury room in fifteen minutes

15             (Jury leaves room.)

16             THE COURT:  We are in recess for 15 minutes.

17             (Thereupon a recess was taken, after which the

18    following proceedings were had.)

19             (Open court.  Jury not present.)

20             THE COURT:  United States of America versus Gerardo

21    Hernandez, et al. Case Number 98‑721.

22             Would counsel state their appearances.

23             (All parties present.)

24             THE COURT:  All defendants are present using the aid

25    of the interpreters if needed.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1889

 

1             In regard to the evidence list that the government

2    requested the Court confirms that everything was introduced

3    into evidence, on page one, everything is introduced into

4    evidence.  The volume 1 exhibits, they are introduced with the

5    suffix S?

6             MS. MILLER:  Yes.

7             THE COURT:  The same is true on page 2 with volumes 2

8    and 3.

9             The third page the same is true for DS.  There are two

10    items on that page not moved into evidence, SG 13, SG 47.

11    There is an additional item that was introduced into evidence

12    SG 51 and on the next page, all items have been introduced into

13    evidence except for SAV 62 composite which I don’t have an

14    indication was even presented or identified by the witness.

15             MS. MILLER:  That is my mistake.  It was one I was

16    thinking of using and didn’t.  It should not be on the list.

17             THE COURT:  Additionally SG 60W and 60W‑1 and

18    everything on the last page has been introduced into evidence.

19             Therefore, it is the two items, SG 13 and SG 47 which

20    you have not yet moved into evidence.

21             SG 13 is the license plate and SG 47 is the modem from

22    the closet.

23             MS. MILLER:  We move in SG 47.  We will wait on SG 13.

24             THE COURT:  Do you want to do that in front of the

25    jury?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1890

 

1             MS. MILLER:  Perhaps at the beginning of my redirect I

2    will state I move it into evidence.

3             THE COURT:  Any objection?

4             MR. MENDEZ:  No.

5             THE COURT:  Let’s move on to the issue regarding

6    Mr. Mendez’ chart.

7             Have you had an opportunity to examine and review the

8    chart?

9             MS. MILLER:  I have, Your Honor.  I would request that

10    the preferred way to proceed would be to present it to the

11    witness and let the witness make whatever notations on a

12    separate page counsel is proposing.

13             I am not quite clear exactly what counsel is proposing

14    to do, but I don’t think ‑‑.

15             THE COURT:  As I understand it he wanted to ask the

16    witness to confirm whether or not those were accurate numbers.

17             MR. MENDEZ:  The witness is here and if the Court

18    doesn’t mind I will speak despite his presence.

19             I am asking him to add it up and it is his number I am

20    going to use, period.

21             Rather than go through and write out each individual

22    date, I am just going to use the chart and instead of 136, he

23    has 135, I cross it out and it is 135.

24             They could have done the math.  Whatever the numbers

25    say is on those documents.  It is a matter of adding them up.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1891

 

1    It is a self contained number.

2             THE COURT:  I think the problem is presenting a

3    prewritten number to the jury before the jury testifies.

4             MR. MENDEZ:  I will use Post‑its to cover up the

5    numbers.

6             THE COURT:  Is there any objection to that and as the

7    witness testifies he fills in the number of the diskettes?

8             MS. MILLER:  Since this is cross examination, it must

9    be in the context in which the testimony was given that these

10    were approximate numbers.  That was the preface to the

11    questions.

12             MR. MENDEZ:  We are educating the witness now.  There

13    will be argument about what the witness testified ‑‑

14             THE COURT:  Sir, could you step outside a moment,

15    please.

16             (Witness leaves room.)

17             THE COURT:  What is it you wish to do?  Could you put

18    it on the Elmo now so I could see it and tell me what you wish

19    to do?

20             MR. MENDEZ:  I will ask quite simply this gentleman

21    clarify his direct examination ‑‑

22             THE COURT:  Can you move it back so I could see the

23    paper?

24             MR. MENDEZ:  There is more as we go up.

25             He will give me a number.  If it is 209 I show it and

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1892

 

1    if it is 210 ‑‑

2             THE COURT:  Where are the Post‑its?

3             MR. MENDEZ:  I took them off because I thought Your

4    Honor wanted to see it.

5             THE COURT:  You will cover the 136 number with a

6    Post‑it and you will ask him on a cross examination question

7    how many diskettes he retrieved on August 5, 1996?

8             MR. MENDEZ:  Yes.

9             THE COURT:  If he says 136, you will take off the

10    Post‑it?

11             MR. MENDEZ:  Yes.

12             THE COURT:  If he says a different number, you will

13    write it on the Post‑it?

14             MR. MENDEZ:  Does it matter whether I cross it out or

15    write it on?

16             MS. MILLER:  Your Honor ‑‑

17             MR. MENDEZ:  This is absurd.  I gave them the disk, I

18    I gave them the list.  We are working off the same documents.

19    There should be no arguments.  We gave them a great deal of

20    latitude with leading.  I just want this gentleman to tell us

21    how many disks he copied.  It is in black and white from the

22    documents we got from the government.

23             MS. MILLER:  What I was trying to say, the way counsel

24    explains he wants to use this document, I don’t have an

25    objection to as long as the numbers are not displayed to the

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1893

 

1    jury until the witness testifies as to a number.

2             THE COURT:  As long as the Post‑its cover the number

3    until the witness testifies to it, you have no objection to it?

4             MS. MILLER:  That is right.  If the witness testifies

5    to a different number, the number has to be changed, obviously.

6             I just don’t want numbers put before the witness that

7    are numbers the witness hasn’t testified to.

8             THE COURT:  What if the number is different from the

9    number that is on the chart?

10             MS. MILLER:  Counsel has to either cross it out or put

11    in a new number with a Post‑it.

12             THE COURT:  You have no problem if he takes the

13    Post‑it out?

14             MS. MILLER:  As long as he makes it clear it is his

15    number he is crossing out not the witness’ number.

16             THE COURT:  That is why I was suggesting you write it

17    on the Post‑it.

18             MR. MENDEZ:  If I use Post‑its, they will be flying

19    off.  It is a three month trial ‑‑

20             THE COURT:  I am not worried about the Post‑its

21    getting secured.  We can tape them on.

22             MR. MENDEZ:  What is the danger if I cross it out, he

23    puts the correct number and he initials it?

24             THE COURT:  Where does that discrepancy come from, it

25    is a problem?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1894

 

1             MR. MENDEZ:  It may be because I am adding these

2    numbers up during the course of trial.

3             THE COURT:  Are you on the stand?

4             MR. MENDEZ:  If there is a discrepancy, why don’t they

5    add them up.

6             THE COURT:  This is the way we will proceed.  You will

7    put Post‑its over the actual numbers.  If the witness testifies

8    to the exact number underneath your Post‑it, you may remove the

9    Post‑it.  If he testifies to a different number, you will write

10    the number on the blank Post‑it and that will be the number and

11    we will tape over it and that will be the number for that

12    particular number of diskettes.

13             MR. MENDEZ:  Fine.

14             THE COURT:  Let’s proceed.

15             Bring the jury in and bring back the witness.

16             (Jury present.)

17             THE COURT:  You are still under oath, Mr. Rosado

18    Thereupon ‑‑

19

20                    VICENTE M. ROSADO,

21    called as a witness herein, having been previously duly sworn,

22    was examined and testified further as follows:

23             THE COURT:  You may proceed, Mr. Mendez.

24    BY MR. MENDEZ:

25    Q.  Sir, I was asking you questions about the number of disks

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1895

 

1    you copied during the course of your secret entries into the

2    homes reflected in that chart?

3    A.  Yes, sir.

4    Q.  I believe we have already covered the number of disks you

5    copied on August 5, 1996 and you told us the number of disks

6    you copied that day or that evening was 136; is that correct?

7    A.  That is correct.

8    Q.  You do have your notes in front of you that will help you

9    answer these questions?

10    A.  Yes, sir.

11    Q.  Tell us, sir, by looking at your notes or if you recall

12    independently, what was the number of disks that you copied on

13    September 1996 when you entered the home of Mr. Viramontez?

14    A.  209.

15    Q.  Sir, can you tell us, when was the next surreptitious entry

16    into the home of Mr. Viramontez?

17    A.  December 18, 1996.

18    Q.  Could you tell us what were the number of disks you copied

19    at that time?

20    A.  68.

21    Q.  When was the next time you went into Mr. Viramontez’ home?

22    A.  February 14, 1997.

23    Q.  Can you tell us how many disks you copied at that time?

24    A.  121.

25    Q.  Is that the date we talked about earlier where there was a

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1896

 

1    discrepancy between 125 and 121?

2    A.  Yes, sir.

3    Q.  You tried to copy 125 but you were successful in only

4    copying 121?

5    A.  Yes, sir.

6    Q.  On August 8, 1997, did you enter Mr. Viramontez’ home that

7    date?

8    A.  Yes, I did.

9    Q.  How many disks did you copy at that time?

10    A.  31.

11    Q.  How about April 26, 1998, did you go into his home again?

12    A.  Yes, sir.

13    Q.  How many disks did you copy on that occasion?

14    A.  87.

15    Q.  Sir, you don’t have a calculator in front of you, do you?

16    A.  I figured it out.

17    Q.  I am about to ask you to add up the total number of disks

18    copied from Mr. Viramontez home?

19    A.  I have it.

20    Q.  Would you like a calculator?

21    A.  No.

22    Q.  We are talking about 209?

23    A.  Yes.

24    Q.  Plus 121?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1897

 

1    Q.  Plus 31?

2    A.  Yes.

3    Q.  Plus 87?

4    A.  Yes.

5    Q.  Plus 68?

6    A.  Yes.

7    Q.  What number do you come up with?

8    A.  516.

9    Q.  Let me ask you about the disks you copied from Mr. Medina’s

10    home?

11    A.  Yes, sir.

12    Q.  The first time you secretly entered his home was on March

13    28, 1997?

14    A.  That is right.

15    Q.  Can you tell us how many disks you copied then?

16    A.  73.

17    Q.  When is the next time you went into Mr. Medina’s home?

18    A.  June 17, 1997.

19    Q.  Was it April 14, 1997 or 1998?

20    A.  I am sorry?

21    Q.  Didn’t you go into his home in April?

22    A.  April 26, 1998 ‑‑ I am sorry, April 14, 1998.

23    Q.  So in 1997, the second time you went into his home was

24    June?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1898

 

1    Q.  How many disks did you copy on that occasion?

2    A.  110.

3    Q.  When is the next time you went into Mr. Medina’s home?

4    A.  January 14, 1998.

5    Q.  Can you tell the ladies and gentlemen of the jury how many

6    disks you copied that date?

7    A.  92.

8    Q.  Then on April 14, 1998, how many disks did you copy that

9    day?

10    A.  54.

11    Q.  Sir, have you done the math to tell us how many disks you

12    copied from Mr. Medina’s home?

13    A.  Yes.

14    Q.  What number do you come up with?

15    A.  329.

16    Q.  When you arrive at the numbers 110 and 92, those are the

17    total number of disks found at different locations in the

18    house?

19    A.  Yes, sir.

20    Q.  When you prepare your report, you break down the number of

21    disks found at different locations?

22    A.  I did on that occasion, yes.

23    Q.  With Mr. Medina you come up with 110 for June and the rest

24    coming up to a number of disks from different locations?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1899

 

1    Q.  329 for Mr. Medina?

2    A.  Yes.

3    Q.  The total of disks copied from Mr. Viramontez home is 516?

4    A.  Yes.

5    Q.  The total number of disks copied from Villarrael on August

6    5, 1996 ‑‑ is that the gentleman’s name?

7    A.  Yes.

8    Q.  That was 136?

9    A.  Yes, it is.

10    Q.  136 plus 516 plus 329?

11    A.  981.

12    Q.  So you personally were involved in copying 981 disks as a

13    result of your participation as a result of the secret entries?

14    A.  Yes.

15    Q.  We haven’t gotten to the number of disks you copied on

16    September 12, 1998, have we?

17    A.  I copied no disks on September 12.

18    Q.  On September 12, disks were actually seized?

19    A.  Yes.

20    Q.  And that is what we were talking about earlier the search

21    that took place on September 12 as opposed to the other

22    searches?

23    A.  That is correct.

24    Q.  By September 12, the cat was out of the bag so to speak?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1900

 

1    Q.  Do you have any idea how many disks were seized that day?

2    A.  Approximately 289, but I am not quite sure.

3    Q.  These were seized from all the residences?

4    A.  No, sir.

5    Q.  289 from whose residence?

6    A.  Royal sovereign, 18100 Atlantic Boulevard Apartment Number

7    305.

8    Q.  Is that because you personally were involved in the seizure

9    of disks at that location?

10    A.  Yes.

11    Q.  That is why you have that number in mind?

12    A.  Yes.

13    Q.  You don’t know how many disks were seized from the other

14    locations?

15    A.  I have not committed that to memory and I don’t have that

16    available.

17    Q.  Have you ever actually printed out the information

18    contained in the disks that you either seized or copied?

19    A.  Yes, sir.

20    Q.  Have you actually printed them out and seen in hard paper

21    what that information contained?

22    A.  Yes.

23    Q.  Have you bothered to count the number of pages of documents

24    that are reflected in those disks that you seized and copied?

25    A.  No, sir.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1901

 

1    Q.  Would you estimate ‑‑ does it fill more than one bankers

2    box, for example?

3    A.  I have no way of telling you that.

4    Q.  You have never seen all of these papers stacked up in a

5    file cabinet, for example?

6    A.  If I have, I can’t put it ‑‑

7    Q.  Fair enough.  Do you have any idea in the language of

8    computer technology, how many megabytes or bytes, what measure

9    there is of information that is reflected in those disks?

10    A.  Total breakout of the entries in the searches?

11    Q.  Yes.

12    A.  It is ‑‑ I could check.  It is under 600 megabytes.

13    Q.  What is under 600 megabytes?

14    A.  The total amount of information broken out.

15    Q.  Let me ask you a few questions about ‑‑ let me do this,

16    sir.

17             THE COURT:  Show it to counsel first.

18    BY MR. MENDEZ:

19    Q.  Would you take a look at this document I have marked

20    defendants R‑1 for identification purposes and tell me whether

21    that reflects the number of disks that you told us you were

22    involved in seizing and copying?

23    A.  Yes, sir.

24    Q.  Do you have a pen and would you kindly initial that

25    document anywhere on the face of the paper so we can remember

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1902

 

1    you have done this?

2    A.  I can.  These are stickies that are removable.

3    Q.  We will tape them on.  If you want to put your signature on

4    the stickies to be sure, that is fine.

5    A.  Okay.

6             MR. MENDEZ:  May I publish it?

7             THE COURT:  Any objection?

8             MS. MILLER:  It was not offered in evidence.  We

9    object to it being offered at this time.  We will not object

10    when Mr. Mendez begins his case.

11             MR. MENDEZ:  There is nothing improper about doing

12    that.  I can do it in a billboard ‑‑ I will offer it into

13    evidence with the Court’s permission if necessary but it is not

14    being offered in evidence necessarily, it is to illustrate the

15    gentleman’s testimony.

16             MS. MILLER:  We don’t object to it being published to

17    the jury but we don’t want to waive any objections to any other

18    exhibits being introduced during the government’s case.

19             THE COURT:  I will allow it to be published without it

20    being offered into evidence as an illustrative chart.

21             MR. MENDEZ:  That is all, thank you.

22    BY MR. MENDEZ:

23    Q.  136?

24    A.  Yes.

25    Q.  516 for Mr. Viramontez’ home?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1903

 

1    A.  Yes.

2    Q.  329 for the number of disks copied from Mr. Medina’s home?

3    A.  Yes, sir.

4    Q.  And the total you calculate it to be 981?

5    A.  Yes, sir.

6    Q.  I would like to ask you a couple of questions about the

7    three ring binders introduced into evidence in this case.

8             You have had an opportunity to look at those binders

9    and the contents of those binders?

10    A.  Yes.

11    Q.  They were the ones you talked about earlier today when you

12    were being asked questions by Ms. Miller?

13    A.  Yes, sir.

14    Q.  Sir, those binders contain the printouts of information

15    found in some of the disks that we have been talking about just

16    a moment ago; is that correct?

17    A.  Yes, sir.

18    Q.  The information contained in those binders was taken both

19    from disks that were seized on September 12 as well as disks

20    that were copied on earlier dates; is that correct?

21    A.  That is correct, sir.

22    Q.  Can you tell us, sir, how many disks are featured in those

23    three ring binders, if you know?

24             If there are any documents you have been shown or

25    introduced in evidence that will help you give us that number,

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1904

 

1    let me know?

2    A.  If I saw D1, I could perhaps give you an accurate count.

3    Q.  Did you prepare D1 yourself?

4    A.  Yes.

5    Q.  Take a look at that and tell me ‑‑ let me ask you a few

6    questions about D1.

7             D1 is the list of all of the items that are contained

8    in the three ring binders; is that correct?

9    A.  Yes, sir, it is.

10    Q.  But you will agree with me, will you not, sir, there are

11    more items ‑‑ well ‑‑ strike that.

12             Some of the items in the three ring binders represent

13    different files that were contained in an individual disk; is

14    that correct?

15    A.  Yes, sir.

16    Q.  So we may have more files or more documents in the three

17    ring binders than we have disks that they came from; is that

18    correct?

19    A.  Correct.

20    Q.  Keeping that in mind, will you tell us how many disks you

21    can tell us exist in those three ring binders?

22    A.  If you will give me a moment, I will count them up.

23    Q.  Let me show you ‑‑ go ahead and do it your way.

24             (Interruption.)

25    BY THE WITNESS:

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1905

 

1    A.  Approximately 61.

2    BY MR. MENDEZ:

3    Q.  Is it fair to say the number of disks reflected in the

4    three ring binders is 61?

5    A.  It is an approximate number.  I could sit down and give you

6    an exact.

7    Q.  That is your best estimate?

8    A.  Yes, sir.

9    Q.  Would you initial it?

10    A.  Yes, sir.

11             MS. MILLER:  No objection, Your Honor.

12    BY MR. MENDEZ:

13    Q.  The number of disks reflected in the three ring binders is

14    approximately 61 according to your calculations?

15    A.  Yes.

16             MR. MENDEZ:  I will mark this as R2 for identification

17    purposes.

18    BY MR. MENDEZ:

19    Q.  Some of the disks contain a number of different files;

20    correct?

21    A.  Correct.

22    Q.  But as far as the three ring binders are concerned, if a

23    disk contained more than one file that was of interest to the

24    government, they were separated and given a different

25    designation in the three‑ring binder; is that correct?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1906

 

1    A.  That is correct.

2    Q.  We may have more documents in there than we have the number

3    of disks?

4    A.  That is correct.

5    Q.  As to those documents that are in the three‑ring binder, I

6    believe you told us that the document that was contained in the

7    file, contained in the disk may not be reproduced there in its

8    entirety?

9    A.  That is correct.

10    Q.  So we may have just a portion of a file that is just a

11    portion of a disk?

12    A.  Correct.

13    Q.  Then we have 61, approximately 61 out of 981 disks that you

14    copied?

15    A.  We also include the September 12, 1998.

16    Q.  You don’t know how many disks were seized on September 12?

17    A.  No.

18    Q.  At least 289 because that was the number you were involved

19    with?

20    A.  Yes.

21    Q.  There were seizures at five or six different residences?

22    A.  Correct.

23    Q.  You just don’t have that number?

24    A.  Not off the top of my head, no.

25             MR. MENDEZ:  May I have a second?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1907

 

1             THE COURT:  Yes.

2             (Interruption.)

3             MR. MENDEZ:  That is all the questions I have, thank

4    you very much.

5             THE COURT:  Mr. Blumenfeld?

6             MR. BLUMENFELD:  No questions.

7             MR. HOROWITZ:  No questions.

8             THE COURT:  Ms. Miller.

9             MS. MILLER:  The government moves into evidence SG 47

10    which was introduced during direct examination.

11             MR. BLUMENFELD:  No objection.

12             THE COURT:  It will be admitted as SG 47.

13                    (A document was received in

14             evidence as Government’s Exhibit SG 47.)

15                    REDIRECT EXAMINATION

16    BY MS. MILLER:

17    Q.  You were asked some questions concerning the chart 650A?

18    A.  Yes.

19    Q.  I am handing you 650.  You were asked about a search on

20    January 14, 1997 and there was some remark the chart was

21    incorrect.  Do you recall that question?

22    A.  Yes.

23    Q.  Was there a search on January 14, 1997?

24    A.  No, ma’am, there was not.

25    Q.  When was there a search on January 14?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1908

 

1    A.  February 14.

2    Q.  When was there a search on January 14 of any year?

3    A.  January 14, 1998.

4    Q.  What search was that?

5    A.  1776 Polk Street Apartment 3G.

6    Q.  Was that RTC?

7    A.  Yes, ma’am, it was.

8    Q.  What was the first search that is listed here in 1997?

9    A.  February 14, 1997.

10    Q.  What search was that?

11    A.  RSC, royal sovereign at 18100.

12    Q.  There were two distinct searches, February 14, 1997 and

13    January 14, 1998?

14    A.  Yes.

15    Q.  Is the chart correct?

16    A.  Yes, ma’am, it is.

17    Q.  With regard to the total disks that were acquired by the

18    government, did all of these disks prove to have content on

19    them?

20    A.  No, ma’am.

21    Q.  Some of them even after your retrieval efforts were blank?

22    A.  Yes.

23             MR. MENDEZ:  I object to the leading form of the

24    questions.

25             THE COURT:  Sustained.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1909

 

1             Rephrase your question.

2    BY MS. MILLER:

3    Q.  The ones that ‑‑ withdrawn.

4             Were there instances ‑‑ did all of the disks have

5    different content on them?

6    A.  No.  Some were completely void of any information.

7    Q.  Of the ones that had information on them, were they all

8    different from one another?

9    A.  No.  Some duplicated materials from one entry to the other.

10    Q.  You testified to 61 disks being involved in those exhibit

11    books.  Are you talking about data disks or program disks?

12    A.  These are data disks.

13    Q.  Were there also program disks that were involved in those

14    notebooks?

15    A.  Yes.

16    Q.  Are those reflected on your chart D1?

17    A.  Yes.

18    Q.  Are those in addition to the 61 that you earlier mentioned?

19    A.  Yes, ma’am.

20    Q.  The exhibits that appear in that book are arranged as

21    individual documents; is that correct, agent?

22    A.  Yes, ma’am, they are.

23    Q.  Who created those document divisions?

24    A.  I believe the government did.

25    Q.  Are they based on computer files?

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1910

 

1    A.  Yes, ma’am.

2    Q.  Is there one computer file for each exhibit?

3    A.  Yes, ma’am.

4    Q.  Who originally arranged or created the computer files?

5    A.  I broke out the material from the subjects’ diskettes.

6    Q.  Did you rearrange the files when you did that?

7    A.  No, ma’am.

8    Q.  Did you break out the files as they were on the disks?

9    A.  Yes, ma’am.

10    Q.  Did the files vary in length?

11    A.  Yes, ma’am.

12    Q.  For instance, Agent Rosado, could you turn your attention

13    to Exhibit DAV 103 through 108?

14    A.  Yes, ma’am.

15    Q.  What is the approximate length of each of those exhibits?

16    A.  They are quite small.  Some are a paragraph.  Paragraph

17    size.

18    Q.  Is any of them more than one page?

19    A.  No, ma’am.

20    Q.  Do any of them have any material omitted?

21    A.  No.

22    Q.  Are each of those exhibits a complete file as you found it

23    on the disk?

24    A.  Yes.

25             MS. MILLER:  No further questions.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1911

 

1             THE COURT:  You may step down, sir.

2             (Witness excused.)

3             THE COURT:  Call your next witness.

4             MR. KASTRENAKES:  The United States of America calls

5    Julio Ball to the stand.

6    Thereupon ‑ ‑

7

8                    JULIO BALL,

9    called as a witness by the Government, having been first duly

10    sworn, testified as follows:

11                    DIRECT EXAMINATION

12    BY MR. KASTRENAKES:

13    Q.  Good morning.  I know you are using the aid of a

14    microphone.  Keep your voice up so the last juror back there

15    can help hear you and introduce yourself?

16    A.  Julio Ball.  I am a special agent with the FBI.

17    Q.  How long have you been working with the FBI?

18    A.  I have been employed with the FBI for approximately nine

19    years.

20    Q.  What is your current assignment with the Federal Bureau of

21    Investigation?

22    A.  I am currently assigned to the health care fraud unit in

23    the Miami office.

24    Q.  How long have you been working health care?

25    A.  Since approximately 1998.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1912

 

1    Q.  Prior to that if you could tell us where you were assigned?

2    A.  From approximately 1996 to 1998 I was assigned to the FBI

3    office in San Juan, Puerto Rico where I worked white collar

4    crime matters.

5    Q.  Prior to working in San Juan, where did you work?

6    A.  Approximately 1992 through 1996 I was assigned to the Miami

7    office where I worked public corruption matters.

8    Q.  Prior to becoming a special agent with the FBI, did you

9    work in the private sector?

10    A.  Yes, I did.

11    Q.  What did you do?

12    A.  I was employed with IBM.

13    Q.  How many years did you work with IBM?

14    A.  For eight years.

15    Q.  Let me call your attention specifically to September 12,

16    1998 and ask if you had an assignment in connection with

17    arrests and an investigation concerning a network called the La

18    Red Avispa?

19    A.  Yes.  I was assigned as the team leader of the search to be

20    conducted at the address of 8000 Southwest 19th Avenue,

21    Apartment A403.

22    Q.  Is that here in Miami Florida?

23    A.  Yes.

24    Q.  You were the team leader in that search at that place?

25    A.  Yes.

 

 

RICHARD A. KAUFMAN, CMRR

 

 

1913

 

1    Q.  Pursuant to that assignment, what time would you say

2    approximately that you arrived at that particular location?

3    A.  We arrived at the location a little before 6 a.m.

4    Q.  From your position outside that location, did you see an

5    individual who was under arrest removed from Apartment A403?

6    A.  Yes, I did.

7    Q.  I will ask you, Special Agent Ball, if you could look

8    around the courtroom today and tell us if you recognize that

9    individual who was under arrest the morning of September 12,

10    1998 coming from Apartment A403?

11    A.  Yes.  He is the gentleman sitting in I believe the second

12    row with the beard right next to the computer monitor.

13    Q.  Just describe one article of clothing he is wearing?

14    A.  Can I stand up to take a quick look?  He is wearing the

15    jacket which appears to be a white shirt.

16             MR. KASTRENAKES:  May the record reflect the witness

17    has identified the defendant Rene Gonzalez.

18             THE COURT:  It will so reflect.

19    BY MR. KASTRENAKES:

20    Q.  Did you participate in the arrest of defendant Gonzalez?

21    A.  I didn’t physically arrest Mr. Gonzalez.

22    Q.  You already told us your job was to be the search team

23    leader?

24    A.  Yes.

25    Q.  At the time that you arrived at that residence, had you

 

 

RICHARD A. KAUFMAN, CMRR

(Continue reading the transcript in another page)

Este blog persigue fundamentalmente un intercambio civilizado y respetuoso alrededor del caso de Los Cinco, que aspira a ampliar la divulgación del mismo y de su contexto. Se aceptan todas las opiniones siempre que se manifiesten en forma respetuosa, se adhieran al tema del post, y eviten los ataques personales.