Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 1 of 106

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF COLUMBIA

3 UNITED STATES OF AMERICA, . Docket No. CR-08-0360 (RMU)

4 Plaintiff,
. Washington, D.C.
5 v. , October 22,2009
. 2:00 p.m.
6 PAUL SLOUGH, et al,

7 Defendant.
..................
8
TRANSCRIPT OF HEARING - AFTERNOOW SESSION
9 BEFORE THE HONORABLE RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE
10

11 APPEARANCES:

12 For the Plaintiff! United States Department of Justice

By: Joseph Nicholas Kaster, Esquire
13 Michael John Dittoe, Esquire
10th and Constitution Avenue, NW
14 Washington, D.C. 20530
202.5 14.2805
15
For the Defendant Steptoe & Johnson, LLP
16 Slough: By: Mark J. Hulkower, Esquire
Michael J. Baratz, Esquire
17 1330 Connecticut Avenue, Northwest
Washington, D.C. 20036
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 2 of 106

19 For the Defendant Harris, Wiltshire & Grannis, LLP

Slatten: By: Thomas G. Connolly, Esquire
20 Steven A. Fredley, Esquire
1200 18th Street, Northwest
21 Washington, D.C. 20036
202.730.1339
22
For the Defendant Schertler & Onorato, LLP
23 Heard: By: David Schertler, Esquire
Danny Onorato, Esquire
24 Veronica R. Jennings, Esquire
60 1 Pennsylvania Avenue, Northwest
25 Washington, D.C. 20004
202.628.41 99

Linda L. Russo, RPR

Official Court Reporter
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1
For the Defendant Mallon & McCool, LLC
2 Ball: By: Steven J. McCool, Esquire
1776 K Street, Northwest
3 Washington, D.C. 20006
202.680.2440
4
For the Defendant Coffield Law Group, LLP
5 Liberty: By: William F. Coffield, IV, Esquire
1330 Connecticut Avenue, Northwest
6 Washington, D.C. 20036
202.429.4799
7

12 Court Reporter: Linda L. Russo, RPR

Official Court Reporter
13 Room 6503, U.S. Courthouse
Washington, D.C. 20001
14 202.354.3244
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24 Proceedings reported by machine shorthand, transcript produced

by computer-aided transcription
25

Linda L. Russo, RPR

Official Court Reporter
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1 DIRECT EXAMINATION

2 BY MR. KASTER:

3 Q. Would you please state your name?

4 A. Raymond Hulser.

5 Q. How are you currently employed?

6 A. I'm a Deputy.Chief in the Public Integrity Section in the

7 criminal division of DOJ.

8 Q. Would you describe just very briefly your duties as a

9 Deputy Chief with the Public Integrity Section?

10 A. Sure. I help supervise litigation, and I help work on

11 policy and legal issues for the Department.

12 Q. With regards to your work with the Department, then, do

13 you have occasion to serve as a filter or a taint attorney for

14 attorneys within the Public Integrity Section?

15 A. I have done that, yes.

16 Q. About how frequently do'you engage in that type of

17 assistance?
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18 A. It doesn't come up under any regular schedule, but I have

19 definitely done it probably as many as ten times.

20 Q. When did you join the Department of Justice?

21 A. 1990.

22 Q. And have you served in other sections, or have you served

23 your time in the Public Integrity Section?

24 A. I've been in the Public Integrity Section the entire time.

25 Q. ;Mr. Hulser, I'd like to have you turn your attention then

Linda L. Russo, RPR

Official Court Reporter
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1 to how you got involved with the current case, the

2 investigation of the shooting at Nisur Square on September 16,

3 2007, all right?

4 A. Yes.

5 Q. Would you tell -theCourt how you were first notified that

6 your assistance would be requested to work on this case.

7 A. I got a phone call from Ben Campbell, Benton Campbell, who

8 was at the time I think Acting Chief of Staff to the Assistant

9 Attorney General, and from Sigal Mandelker who was at that time

10 a Deputy Assistant Attorney General in the criminal division,

11 and they informed me that there was an issue involving

12 potential Garrity problems in the investigation of a shooting.

13 Q. Had you had any experience prior to this case dealing with

14 Garrity issues?

15 A. I had. I had experience reviewing Garrity issues in

16 individual cases and working on it from a policy perspective as

17 well.
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18 Q. Did Mr. Campbell tell you generally what your role was

19 going to be in this investigation?

20 A. Yes, although I think it was a bit uncertain at that

21 point, it was clear that they were reaching out to me because I

22 had experience with Garrity issues, and they wanted someone to

23 help manage the Department's way through that issue.

24 Q. Once you found out that this was going to be a new

25 assignment, what were some of the first steps that you took?

Linda L. Russo, RPR

Official Court Reporter
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1 A. First I found out who it was I would be dealing with in

2 the National Security Division, which would be taking on the

3 case.

4 Q. Let me stop you there. Why was the National Security

5 Division going to be taking the case? You work for the

6 criminal division, right?

7 A. I do. Some of the folks in the criminal division had

8 received statements from the Department of State that were

9 generated by Department of State investigators, and there was a

10 concern that those statements may have been compelled. And so

11 since people in the criminal division might have received

12 information derived from compelled statements, we decided to

13 remove the case -- it was decided to remove the case from the

14 criminal division.

15 Q. And in doing so, did you find out -- strike that. When

16 that occurred, who did you find out you would be working with

17 as part of this investigation from the National Security

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18 Division?

19 A. My main contact with the National Security Division was

20 Mike Mullaney, who was in charge of the counterterrorism

21 section, and I also had contact briefly with Ken Wainstein, who

22 was the ~ s s i s t a nAttorney

t General, and with Pat Rowan.

23 Q. What about from the perspective of the State Department,

24 what, if any, relationship did you develop with State

25 Department lawyers as this investigation began?

Linda L. Russo, RPR

Official Court Reporter
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1 A. I worked with an attorney by the name of Jesse Tampio

2- primarily on issues related to the taint, helped get him up to

3 speed on what the issues would be, and help work through some

4 of the logistics with him in terms of passing information to

5 the FBI.

6 In addition, there was an attorney Brad Wigman, and

7 he was involved on some of the policy issues that would flow

8 from this. That is, this was an international incident that

9 the State Department needed to be able to handle. So there

10 were issues regarding briefing the Iraqis, for example, or

11 condolence payments to the victims.

12 Q. Did there come a time when you came to possess the

13 underlying documents that were at issue concerning the Nisur

14 Square shooting that the Diplomatic Security Service had

15 originally had in their possession?

16 A. I did.

17 Q. And how did you get those, do you recall?

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18 A. I believe I got some in person from John Morton, who was

19 in the Domestic Security section in the criminal division.

20 Q. Now, you're aware that there were statements submitted by

21 Raven 23 guards that were sworn statements, correct?

22 A. Yes.

23 Q. There are also a category of statements derived from oral

24 interviews. You're aware of that as well?

25 A. Yes.

Linda L. Russo, RPR

Official Court Reporter
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1 Q. Initially did you receive both sets of documents or not?

2 A. I don't remember exactly in what order I received them, or

3 exactly when, but very soon after getting assigned, I received

4 write-ups of the oral interviews and copies of the sworn signed

5 statements.

6 Q. Now, you I believe indicated that you first began work on

7 this case around the 1st of October of 2007; is that correct?

8 A. Yes.

9 Q. Shortly after starting work, did you have any contact with

10 Mr. Mullaney over at the National Security Division?

11 A. I did.

12 MR. KASTER: Your Honor, I have in the folder before

13 the Court, as well as before the witness, as well as a folder

14 that I have given to defense counsel, a series of exhibits, and

15 I'd like to begin with first Government's Exhibit 53 for

16 identification.

17 BY NIR. KASTER:
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18 Q. Mr. Hulser, could you pull out Government's Exhibit 53 and

19 take a look at the pages that are stapled together there?

20 A. Yes.

2 1 Q. Do you recognize these documents?

22 A. Yes.

23 Q. Very briefly, what are the documents there?

24 A. There are a couple of e-mails here between me and Mike

25 Mullaney and others at the National Security Division, and an

Linda L. Russo, RPR

Official Court Reporter
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1 e-mail exchange between me and Jesse Tampio at the State

2 Department, and a copy of the memo that John Morton and I wrote

3 from the criminal division to Ken Wainstein at the National

4 Security Division.

5 NIR. KASTER: Your Honor, the United States would

6 offer at this time in evidence Government's Exhibit 53.

7 MR. CONNOLLY: No objection.

8 THE COURT: Admitted.

9 (Government's Exhibit Number 53 received in evidence.)

10 BY MR. KASTER:

11 Q. Mr. Hulser, with regards to the first page, which is DOJ

12 Bates number 001497, it's a chain of e-mails, correct?

13 A. It is.

14 Q. And the top e-mail, that's an e-mail from you to

15 Mr. Mullaney, do you see that, dated October 2nd?

16 A. Yes.

17 Q. You refer in this e-mail to Mr. Jesse Tampio?

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18 A. Right.

19 Q. And he was a lawyer with the State Department Legal

20 Office?

21 A. Right.

22 Q. Now, does this -- well, what does this e-mail reflect in

23 terms of your initial efforts as the taint or filter attorney

24 for DOJ?

25 A. The initial effort was to work through logistics. The FBI

Linda L. Russo, RPR

Official Court Reporter
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was going to very quickly be taking a trip to Iraq to

investigate, and we needed to put some things in place on the

State Department's side, and the DOJ FBI side in order to make

sure that they weren't exposed to what could be compelled

statement.

Q. What was your understanding as far as why the FBI quickly

wanted to get to Baghdad?

A. Well, this is an incident that had taken place weeks

before already, and with an incident like this, although I

10 don't have experience in violent crime or shootings, with an

11 incident like this, the assumption was they needed to get there

12 and investigate as quicltly as they could.

13 Q. Based on your participation in these early planning

14 efforts, did the FBI require assistance of agents from the

15 Diplomatic Security Service to help them?

16 A. They did. What we set up was for there to be agents from

17 the State Department's side who were not exposed to any

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18 statements given by the Team 23 mernbers. And there were a

19 couple who would travel to Iraq and be available to the FBI as

20 contacts so that they would be able to have someone to contact

2 1 to get information from the State Department.

22 Q. Did you take any steps in these early days to address the

23 issue of media stories concerning the Nisur Square shooting?

24 A. Yes, I think conveyed both to the State Department and to

25 Mr. Mullaney and the National Security Division that some of

Linda L. Russo, RPR

Official Court Reporter
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1 the statements by the Team 23 members had reached the media,

2 and therefore they needed to avoid any exposure to media

3 stories about the incident.

4 Q. So both State Department and DOJ side. Would you mind

5 turning to Government's Exhibit 53, to the next page, which is

6 DOJ-003068. Do you see that?

7 A. Yes.

8 Q, Now, it's an e-mail. Could you tell the Court what this

9 e-mail reflects?

10 A. Right. This is me advising Mr. Tampio at the State

11 Department that anyone who is going to be on the clean group

12 from the State Department needs to avoid media stories on the

13 shooting.

14 Q. And at this time, could you describe for the Court, at

15 this time of the investigation that is, who is starting to form

16 as the taint side of things, and who is going to be on the

17 clean side of things?

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18 A. The State Department needed to identify who in Baghdad had

19 been exposed to the statements given by the Team 23 members,

20 and so they came up with a list of people in Baghdad, both at

21 the embassy and in the RSO, who had been involved in reviewing

22 those, getting those statements or writing a report based on

23 them. The State Department came up with that list.

24 They also identified people in the RSO in Baghdad who

25 had not been exposed to those materials, and so we had names of

Linda L. Russo, RPR

Official Court Reporter
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1 people that could be contacted. And then there were names of

2 the individuals who would be traveling to Baghdad who 'had been

3 previously uninvolved in it and were not exposed. So that was

4 the State Department side of things.

5 Q. And I guess from the Justice Department side of things,

6 including both Main Justice and .the FBI, would you briefly

7 summarize for the Court who is on the clean team, and who is

8 going to be on the filter team?

9 A. Right. In the memo that we wrote to Mr. wainstein, John

10 Morton and I tried to identify who in the Department we knew

11 had been exposed to statements by Team 23 members, and what we

12 were doing is setting up a line between those folks and the

13 folks in the National Security Division.

14 So my understanding was Mike Mullaney and any

15 attorneys that he would assign to the matter would be on the

16 clean team, and that the FBI would identify individuals who had

17 not been exposed to any of the media accounts on the case.

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18 Q. Now, you described a minute ago that there was this memo

19 within Government's Exhibit 53 that was sent from yourself and

20 John Morton to Assist Attorney General Wainstein, correct?

21 A. Right.

22 Q. If I could have you turn to the third page of the memo,

23 which is DOJ Bates number 005136?

24 A. Yes, sir.

25 Q. You see about halfway down the page there's a paragraph

Linda L. Russo, RPR

Official Court Reporter
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1 beginning, issues that need prompt attention?

2 A. Right.

3 Q. Did you participate in the preparation of this memo with

4 Mr. Morton?

5 A. I did. I think Mr. Morton had a bigger hand in it. He

6 had been involved for a bit longer than I had by the time we

7 sent this.

8 Q. Let me have you focus on the, there's a legal discussion

9 and there's some bullet points that are listed underneath

10 there, and let's take a couple of them. The third bullet

11 point, for example, could you read that one, please?

12 A. The need to determine if a special advice of rights should

13 be crafted for individuals who may already have given DS sworn

14 statements pursuant to the earlier compelled warnings.

15 Q. And what about the next bullet point there?

16 A. The need to assign a taint free senior DOJ official within

17 NSD to help coordinate the whole affair with the FBI, the State
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18 Department, and the Department of Defense.

19 Q. Was that person assigned within the first day of when you

20 got on the case?

21 A. I would view that as Mr. Mullaney.

22 Q. And the next bullet after that, would you read that one?

23 A. The need to address basic questions about how the FBI team

24 should structure and manage its relationship with the State

25 Department in general, and Diplomatic Security in particular.

Linda L. Russo, RPR

Official Court Reporter
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1 Q. Now what, if anything, did you do to accomplish, or to

address the issue that's set out there about how the FBI and

the State Department were going to interact going forward?

A. I worked with Mr. Tampio at the State Department, and he

took the leading hand in drafting a protocol, but he and I

worked together to draft a protocol about who would have what

role, and who should avoid what sort of contacts, what

information should be passed.

Q. And in transferring this case to the National Security

Division what, if anything, did you inform the National

Security Division concerning the potential legal issue on

Garrity and Kastigar through this memo?

A. It was simply to alert them to an issue that I was quite

familiar with from my experience working with Inspector General

offices, this is a slightly different context. This, the idea

of a Garrity issue, is not something that's commonly known

among all prosecutors. We happen to deal with it a fair amount

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18 in the Public Integrity Section.

19 So the idea was to convoy to them, there may be an

20 issue with a statement having been compelled. And if it is,

21 then we need to avoid the people doing the investigation

22 becoming exposed to those statements or the information derived

23 from them.

24 Q. I'd like to ask you a few questions concerning your

25 efforts during the month of October, 2007, in particular.

Linda L. Russo, RPR

Official Court Reporter
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1 Okay?

2 A. Yes.

3 Q. Did you come to learn that the FBI actually did ultimately

4 deploy to Iraq that first week of October?

5 A. Yes.

6 Q. Now, as the FBI goes to Iraq to begin the investigation,

7 what are you doing here back in Washington as your role as the

8 taint attorney to assist with the investigation as it's getting

9 under way?

10 A. One of the things we did while the FBI was there was, we

11 identified an Assistant United States Attorney who was posted

12 to Baghdad who was on the ground to review any materials as a

13 taint or filter attorney, any materials that the FBI might want

14 to see there. So he was put in place, and I worked

15 coordinating with him some on the phone.

16 Q. So another individual joined you as part of the taint

17 team?
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18 A. Yes.

19 Q. Do you recall his name?

20 A. That was Joe Mott.

21 Q. And with regards to how the FBI when they got to Baghdad

22 would interact with the State Department, what, if anything,

23 did you do with Mr. Tampio to address that issue?

24 A. We spoke about requests that came from the FBI while they

25 were there. So a request would come in that they wanted to

Linda L. Russo, RPR

Official Court Reporter
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1 speak with somebody, or get a particular document, I would talk

2 to Mr. Tampio and convey my response to that, either to Mr.

3 Tampio or in some cases I believe while they were there, to

4 Mr. Mullaney as well.

5 Q. Did there come a time where you and Mr. Tampio decided to

6 prepare sort of a written protocol for how the State Department

7 would interact with the FBI?

8 A. There was a written protocol, yes.

9 Q. Would you mind pulling out from your folder Government's

10 Exhibit Number 54, which is for identification at this point?

11 A. Yes.

12 MR. KASTER: Your Honor, I believe without objection

13 the United States will move Government's 54 into evidence.

14 THE COURT: Yes, sir, admitted.

15 (Government's Exhibit Number 54 received in evidence.)

16 BY MR. KASTER:

17 Q. Let me start very quickly with regards to your sort of

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18 general advice that you would give to Mr. Mullaney for the FBI

19 as far as how they should approach the investigation, even

20 though there had been other investigating bodies at work. What

21 were you telling Mr. Mullaney that the FBI should -- how they

22 should approach this?

23 A. I think Mr. Mullaney's view was the same as mine, which

24 was they should treat this as though they were showing up on

25 the scene immediately after the shooting, and proceed that way

Linda L. Russo, RPR

Official Court Reporter
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1 to investigate what had happened, rather than try to get

2 information from anyone who had done the prior investigation

3 about what they thought had happened.

4 Q. Let me have you turn the page real quick on Government's

5 Exhibit 54 to DOJ-001500.

6 A. Yes.

7 Q. And I have this on the Elmo as well. Is this an e-mail

8 from you to Mr. Mullaney?

9 A. It is.

10 Q. And could you read the last sentence of the third full

11 paragraph that's highlighted on the copy here on the Elmo that

12 begins "unfortunately"?

13 A. Unfortunately, given the nature of the compulsion here, I

14 believe that it is safest for the FBI to proceed as if no

15 inquiry happened at all.

16 Q. And did this viewpoint of yours inform, then, the advice

17 you would later give?

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18 A. It did.

19 Q. Now, with regards then to how that general advice got

20 transformed and perhaps some more specific advice, did you

21 ultimately finalize with Mr. Tampio sort of an investigation

22 protocol?

23 A. Yes. There was a protocol, and it's another document in

24 this exhibit.

25 Q. And could you turn to DOJ-001502 in Government's Exhibit

Linda L. Russo, RPR

( Official Court Reporter
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1 54?

2 A. Yes.

3 Q. That's an e-mail, correct?

4 A. Yes.

5 Q. And the two pages that follow that e-mail, which are Bates

6 numbers 1503 and 1504, what do these pages reflect?

7 A. They were the protocol.

8 Q. And if you would just explain how this works. You have

9 drafted this protocol, how are you going to now have it

10 implemented?

11 A. The State Department, Jesse Tampio, would be involved in

12 making sure that the people in Baghdad had this in their hands

13 and understood their instructions, depending on which category

14 the RSO personnel fell within it. If they were on the tainted

15 side, they were not to be providing any information to the FBI

16 or the investigators. If they were untainted, as we designated

17 them, they could have contact with the FBI, and they might be
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18 points of contact.

19 And the FBI would be aware of this and have this

20 protocol as well. And it was understood that this could be

21 modified by the FBI if they found that there were some issues

22 that somehow this didn't work.

23 Q. With regards to the State Department in Baghdad, the RSO,

24 did you, yourself, get involved in the details as to exactly

25 how the RSO himself would disseminate this information? Did

Linda L. Russo, RPR

Official Court Reporter
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1 that matter to you at all or not?

2 A. I did not get involved with that. One of the things I did

3 through this process was to make sure Mr. Tampio understood the

4 significance of this and the sensitivity of a Garrity issue.

5 And so as he got to understand that issue, he became very

6 careful about conveying the right information.

7 Q. And if you could turn to DOJ-001503, the various bullets

8 that are listed under the first category for the RSO Baghdad

9 personnel, what's the thinking behind these bullets that you

10 and Mr. Tampio drafted?

11 A. The thinking is that the sworn statements in particular

12 may be deemed compelled statements, and that we need to

13 identify who it is that had seen those, had been exposed to

14 them, so that we could make sure that they were not in contact

15 with the people who would be investigating the shooting.

16 Q. Now, at this time, at this early stage, were you fully

17 aware of all the potential statements that were out there or

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18 not?

19 A. As of this date I believe I was. I believe I was aware

20 that there had been statements given before and after the sworn

21 statements of September 18th.

22 Q. But did you have like a complete, to your knowledge,

23 catalogue of every single memorandum of interview, every set of

24 notes, every sworn statement in your possession, or was it more

25 categorical you understood what was there?

Linda L. Russo, RPR

Official Court Reporter
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1 A. It was categorical.

2 Q. Now, let me have you draw your attention to a couple of

3 bullets here that I was going to ask you about. About, it

4 looks like the fourth and the fifth bullets. Do you see the

5 bullet that begins, identify what, if any, information

6 regarding the initial investigation that has already been

7 shared with the Iraqis?

8 A. Yes.

9 Q. Now, what was your understanding as far as what other

10 governmental bodies were investigating this event besides DOS?

1 1 A. It was my understanding that the Iraqi police had done,

12 were doing some investigation of it. I don't know what, I

13 can't say as I sit here today, that I know what body, what

14 government entity in Iraq was doing it, but I believe that the

15 Iraqis had done some.

16 Q. And did you come to learn that the Defense Department also

17 were involved in an investigation?

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18 A. Well, right. Prior to the time that I was assigned, the

19 RSO had conducted an investigation.

20 Q. I'm sorry, maybe I misspoke. Besides the RSO and Iraqis,

21 were you aware of any other U.S. government agency that was

22 involved in the investigation?

23 A. Yeah, the Department of Defense had done some

24 investigation.

25 Q. Now, the bullet right below that, the one that begins, do

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 39 of 106

1 not communicate, it says, do not communicate directly with the

2 FBIIDS personnel conducting the investigation, regarding any

3 aspect of the initial investigation, or the new investigation;

4 do you see that?

5 A. Yes.

6 Q. Now, was this your advice for DS and FBI as to how they

7 were going to interact during this October trip?

8 A. Yes. This is a directive to anyone who had been

9 identified as someone who was exposed to the statements of the

10 Team 23 members.

11 Q. Could you just describe briefly how you and Mr. Mott

12 worked together to address the issue that came up concerning

13 the Defense Department's investigation?

14 A. In Mr. Mott and I spoke, I satisfied myself that he

15 understood the nature of the Garrity issue, and he did. I

16 can't recall whether he had experience with it or not, but he

17 understood it, and he undertook to review the I think fairly

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18 voluminous DOD materials, find out how they had conducted their

19 investigation, and determine whether there were any materials

20 in there that we needed to filter to determine whether they had

21 come from the statements of the Team 23 members.

22 Q. And what, if any, documents did Mr. Mott decided initially

23 to take out?

24 A. He and I jointly decided that there were three interviews

25 that needed to be removed, because it was my understanding that

Linda L. Russo, RPR

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 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 41 of 106

1 those interviews were conducted jointly by DOD investigators

2 and RSO investigators.

3 Q. At this time did you know specifically like what questions

4 were being asked by the DOD person versus the DOS person or

5 not? ,

6 A. I believe, in looking back at my e-mails, that there was

7 some indication that the RSO investigators were actively

8 involved in those interviews.

9 Q. Did you come to revisit this issue months later?

10 A. I did.

11 Q. What was the ultimate resolution of these interview

12 reports that were pulled out of the DOD interview investigation

13 file?

14 A. I reviewed the interview reports myself again, and made a

15 determination that the information in there appeared to come

16 directly from these witnesses own observations on the scene,

17 and that there was no indication that their information was

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18 coming from anything that was derived from Team 23 statements.

19 Q. After the FBI had been on the ground for a little over a

20 week, did you have occasion to attend a meeting with the

2 1 Assistant Attorney General of National Security Division,

22 Mr. Wainstein and Mr. Mullaney, concerning the status of the

23 investigation?

24 A. I did.

25 Q. And let me direct your attention to DOJ-001522, which is

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 43 of 106

1 still in the same exhibit, Government Exhibit 54. What does

2 this e-mail reflect?

3 A. Since I had sat down with the people who were on the clean

4 side of the investigation, I just wanted to record in an e-mail

5 why we had met and what I was conveying to them. This was

6 really a fairly initial meeting with Mr. Wainstein to describe

7 for him what the issues are.

8 Q. Before we actually get into some of the items that you

9 describe occurring at the meeting, could you describe what, if

10 anything, you told Mr. Mullaney and Mr. Wainstein concerning

11 the Garrity issue that you perceived as being in this

12 investigation?

13 A. I think I conveyed to them the general legal idea that if

14 a government employee is compelled to give a statement under a

15 threat of loss of employment, or loss of a contract in this

16 instance, that the statements can be deemed a compulsion under

17 the Fifth Amendment. And if that's the case, if the employee

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18 or contractor subjectively believes .that, and if somebody

19 determines that that was a reasonable view that they had, that

20 those statements can be deemed compelled.

21 Q. Did you indicate that there was both a subjective and an

22 objective part of this analysis?

23 A. I believe I did. I don't know exactly when I did that

24 with Mr. Mullaney, but I'm fairly certain we talked about that.

25 Q. And, again this is early on, did you feel yourself that

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1 you had complete command over what the interview process was

2 that the RSO had undertaken concerning the Nisur Square

3 incident or not?

4 A. I don't think I did at this point. We were gathering

5 information about what interviews took place and when, and so I

6 was simply going to be very cautious about what they would be

7 exposed to.

8 Q. Now, getting back to the e-mail on October 10, 2007, could

9 you read the second sentence of the first full paragraph that

10 begins "You indicated."

11 A. . You indicated ,that you have avoided media accounts about

12 the incident, and I indicated that even the earliest media

13 accounts may contain information from Blackwater personnel, and

14 thus should be avoided.

15 Q. And the "you" there, that's the pronoun "you" that's in

16 that sentence, what is that referring to?

17 A. This is really anyone who is working on the investigation

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18 in the National Security Division.

19 Q. The people on the clean side?

20 A. Yes, sir.

21 Q. Now, jumping down to the next paragraph, you see that it

22 refers to some work as you described just a moment ago that you

23 and Mr. Mott did, correct?

24 A. Yes.

2.5 Q. Could you read the highlighted sentence that begins "the

Linda L. Russo, RPR

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1 RSO did not provide."

2 A. The RSO did not provide the compelled statements or

3 evidence derived from them to the military investigators.

4 Q. What would have been your basis for knowing that at that

5 point in time as the taint attorney looking into this?

6 A. Information that I got from Mr. Mott.

7 Q. You also give some advice down below, correct, concerning

8 what the FBI can do?

9 A. Yes.

10 Q. And could you read the sentence that begins "the FBI is

11 free."

12 A. The FBI is free to seek any physical evidence from the

13 RSO.

14 Q. To your knowledge, did the FBI then follow that advice and

15 seek physical evidence?

16 A. I believe they did.

17 Q. All right. In the e-mail you just read, one of the first

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18 things you talked about was this issue about media, people

19 being exposed to media accounts. Did your guidance in terms of

20 avoiding media counts stop on October loth, 2007, or did you

21 make other efforts as the investigation continued for people to

22 avoid being exposed to these statements potentially through the

23 media?

24 A. I remember at least one other occasion where I reminded

25 Mr. Mullaney of the issue, and I also remember clearing at

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 49 of 106

1 least one article after determining that it didn't have any

2 information from compelled statements.

3 Q. So then in your role, you both stopped, tried to stop some

4 articles or media accounts from going to them, and also

5 provided them with some; is that fair to say?

6 A. Yes.

7 Q. I have what's marked for identification Government's

8 Exhibit 55.

9 MR. KASTER: Your Honor, without objection, I would

10 offer it into evidence at this time.

11 THE COURT: Admitted.

12 (Government's Exhibit Number 55 received in evidence.)

13 BY MR. KASTER:

14 Q. Mr. Hulser, would you mind briefly pulling that out.

15 A. Yes.

16 Q. The first page of Government's Exhibit 55 appears to be an

17 e-mail from Mr. Mullaney to you?

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18 A. Yes.

19 Q. And the third full paragraph there, what is he relaying to

20 you concerning -theissue about media exposure?

2 1 A. He's saying that he noticed an article in the Post that

22 was about the shooting incident, and said it was another day he

23 couldn't read the newspaper.

24 Q. And then the next page is an e-mail from you to

25 Mr. Mullaney, correct?.

Linda L. Russo, RPR

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 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 51 of 106

1 A. Yes.

2 Q. And what was the purpose of you sending him that e-mail?

3 A. These were links to newspaper articles in the Post and the

4 Times that I reviewed and passed on to him because they did not

5 contain information from any statements by the Team 23 members.

6 Q. And then if you could please turn the page to the next

7 e-mail.

8 A. Yes.

9 Q. In that e-mail, which is actually a few weeks ahead,

10 November 15th, what does that reflect you doing?

11 A. I noted for Mr. Mullaney and Mr. Rowan that there

12 continued to be articles about the shooting, and that this onef

13 in particular in the Post contained information that was

14 derived from statements of Team 23 members, what I called

15 compelled statement.

16 Q. Now, let me just step back for a minute. In terms of how

17 the taint filter process is set up, are you in direct contact
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18 with the agent in charge of .the investigation to deal with

19 issues like this or not?

20 A. I am not. I was working through Mr. Mullaney.

21 Q. And did you have a view as far as how your guidance would

22 be shared among the clean team, how that would happen?

23 A. It was my understanding that Mr. Mullaney was in charge of

24 making sure that the directions were given, and that I would

25 not be doing it directly, but through him.

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 53 of 106

1 MR. CONNOLLY: Your Honor, I don't have an objection,

2 I have a point of clarification. I don't understand the

3 difference between the clean team and dirty team. If we could

4 just explain that, who is on the clean side who is on the dirty

5 side.

6 MR. KASTER: I could go back to that, Your Honor. I

7 thought I did that at the beginning of my examination where I

8 was trying to identify the people that --

9 THE COURT: The clean team are the people who are

10 operating free of any taint or exposure to taint?

11 MR. KASTER: Correct, they're the individuals that

12 investigated this case, Agent Patarini, and then at the

13 beginning Mr. Mullaney, then AUSA Kohl, and the other members

14 of the FBI team. The individuals who were looking at the taint

15 or the filter issues as identified by Mr. Hulser was himself

16 initially, and Mr. Mott in Baghdad during the October trip of

17 the FBI.
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18 THE COURT: How do you refer to them?

19 MR. KASTER: I refer to them as the taint, or the

20 filter team.

21 THE COURT: All right.

22 BY MR. KASTER:

23 Q. Let me ask one more question to help clarify this a little

24 bit more. Apart from Mr. Mott, Mr. Hulser, did anyone else

25 apart from -- strike that question.

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 55 of 106

1 Apart from Mr. Mott and Mr. Tampio, were there any

2 other attorneys assisting you with the taint review from the

3 beginning of the investigation up until, say, the fall of 2008?

4 A. No.

5 Q. Now, getting back just to the media stories and the

6 guidance in that regard, if you could just turn to the last

7 page of Government's Exhibit 55, which is DOJ-1600.

8 A. Yes.

9 Q. This e-mail, there's an e-mail exchange here between you

10 and Mr. Mullaney, correct?

11 A. Yes.

12 Q. Very briefly, the original e-mail in this e-mail chain,

13 what does it describe?

14 A. I told Mr. Mullaney and Mr. Roan that there was an article

15 that included information from compelled a statement, and that

16 they should avoid -- be careful regarding media exposure. So

17 it was a reminder.
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18 Q. What, if anything, did Mr. Mullaney say back to you, to

19 your reminder?

20 A. He said back, I had all .the agents instructed last evening

2 1 not to read these articles. Ken Kohl the AUSA in D.C. on the

22 case, gave the warnings.

23 MR. KASTER: The Court's indulgence. I'm sorry

24 BY MR. KASTER:

25 Q. Before we leave the discussion about the FBI's first trip

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 57 of 106

1 in October of 2007, did there come a time when there was a

2 request made by the FBI concerning files of prior incidents

3 involving Blackwater guards?

4 A. I believe there was, while they were in Baghdad, yes.

5 Q. And did you come to learn about this request while they

6 were actually still in-country?

7 A. I believe so. Mr. Tampio forwarded me a request that they

8 had made.

9 Q. Okay. And what was your reaction to the, just the general

10 request of the FBI to receive prior incident files?

11 A. This is something that we had experienced before. If

12 there were other incidents in which there had been shootings,

13 the individuals who had done the shooting might have given

14 statements in those incidents that could have been compelled as

15 well. And so from our experience, we recognized that that

16 could be a problem, too.

17 Even though those statements didn't relate to the

 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 58 of 106

18 shooting on September 17th, they could still be protected by

19 the Fifth Amendment. They could be compelled statements by the

20 people -that.they are investigating, and so we would put those

21 on the tainted side of the house and make sure that the FBI and

22 the National Security Division didn't get those statements.

23 Q. Did you prepare any written guidance to address this

24 concern you had about the FBI getting access to these prior

25 incident files?

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 59 of 106

1 A. Yes, I did.

2 Q. Again, with regards to Government's Exhibit 54, if I could

3 have you turn your attention towards the back of it, the Bates

4 number is DOJ-001556.

5 A. Yes.

6 Q. And this e-mail that's dated October 24, 2007, with an

7 attachment, if you could quickly look at the attachment.

8 A. Yes.

9 Q. What does the e-mail and the three page attachment

10 reflect?

11 A. I went to the State Department and reviewed some prior

12 incident files that involved Team 23 personnel, and I did an

13 analysis of those and I provided some guidance regarding which

14 materials from those files could be provided by the State to

15 the FBI, and which could not.

16 Q. Now, at this point of the investigation, and to be

17 specific I'm talking October 24, 2007, what, if anything, are

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18 you developing concerning a general set of guidance as far as

19 what the clean FBI team should avoid concerning the statements,

20 or the types of statements, that you've learned the Diplomatic

21 Security Service had prepared as part of their investigation?

22 A. It became clear that there were several different types of

23 statements that were produced after a shooting incident. There

24 were written reports, called after-action reports. There were

25 incident report. There were oral statements given to RSO

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 61 of 106

1 investigators. There were typed sworn statements given. And

2 there were a series of them.

3 Q. And had you prior experience dealing with RSO

4 investigations and the types of procedures that they followed

5 before this case?

6 A. Not with RSO, not in an incident like this, no.

7 Q. In your role as a taint or filter attorney, were you on a

8 daily basis with the investigative team or not?

9 A. No, I was not.

10 Q. Did there ever come a time when you, yourself, went to

11 Baghdad to interview the RSO or any of the agents working for

12 the RSO?

13 A. I did not.

14 Q. How, if at all, did your unfamiliarity with the RSO's

15 procedures inform your legal judgment about what statements the

16 FBI would be permitted to see and which ones they should avoid?

17 A. In performing my role as a filter attorney in this case

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18 and in others, it's always about risk assessment. So I didn't

19 have all of the facts. It seemed to me that even the earliest

20 statements given by the Team 23 personnel might later be deemed

21 by a Court to be compelled. And so it was my advice that the

22 clean team stay away from all of the statements given by the

23 Team 23 members.

24 Q. And that type of advice, from your perspective, would that

25 be fixed in stone during the investigation, or would you

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 63 of 106

1 consider ever modifying it as the investigation progressed?

2 A. It was, again, a simply risk assessment. So if they

3 develop information that suggests that these statements really,

4 the earliest statements let's say, let's say the September 16th

5 statements, were really not compelled in any way, that there

6 were some oral warnings given, or something about the

7 atmosphere that made clear that these were not compelled

8 statements, then that -- it's a very fact-based inquiry, and as

9 we said before, it's a subjective test in part.

10 So any fact can influence whether the Team 23 member

11 thought it was compelled or not. So the conclusion about it

12 would have to be made after all of the facts were in on that,

13 and certainly at this point I didn't have all of those.

14 Q. Now, Mr. Hulser, let me ask you to turn your attention --

15 MR. KASTER: The Court's indulgence, one moment,

16 please.

17 BY MR. KASTER:
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18 Q. Back to the investigation, in the fall of 2007 after the

19 FBI gets back from Baghdad, I'm talking November, December of

20 2007, okay?

2 1 A. Uh-huh (Indicates affirmatively).

22 Q. If you wouldn't mind pulling out Government's Exhibit

23 Number 56 which is in your folder.

24 MR. KASTER: Your Honor, defense counsel indicated no

25 objection, so I'd offer Government's Exhibit 56 into evidence

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 65 of 106

1 at this time.

2 THE COURT: Admitted.

3 (Government's Exhibit Number 56 received in evidence.)

4 BY MR. KASTER:

5 Q. Now, Mr. Hulser, before I get into a few questions

6 concerning this exhibit, could you describe for the Court the

7 role that you're playing then as a filter or taint attorney

8 after the FBI gets back for that falllwinter of 2007? What

were the types of assistance that you were providing to the

clean team, the FBI agents and the AUSAs that were

investigating the case?

A. I would see requests either from Mr. Mullaney or requests

that Mr. Tampio advised me of, where the FBI, the investigative

team, wanted some information. I would do really two things.

One was, I would either say yes or no to a category of items,

say no they shouldn't get those. And in some instances I had

to go to the documents and review them, and pull things out of

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18 them, literally blocking them out, redacting them out, and then

19 providing a clean set to the investigative team.

20 Q. Let's start first then with what you just described in

21 terms of reviewing and redacting. Let me have you turn to what

22 is marked as DOJ-001657.

23 A. Yes.

24 MR. CONNOLLY: May I inquire whether this is exhibit

25 within Exhibit 56?

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 67 of 106

1 MR. KASTER: Yes.

2 THE COURT: 1657?

3 MR. KASTER: I'm sony, Your Honor, if the Bates

4 numbers are perhaps not in direct order, it's 001657, it's

5 about halfway through this exhibit. It's an e-mail dated

6 January 8, 2008.

7 THE COURT: I have it.

8 BY MR. KASTER:

9 Q. Mr. Hulser, this page, 001657, it reflects a series of

10 e-mails, correct?

11 A. Yes.

12 Q. And there's two pages attached to it. Could you briefly

13 describe what is occurring with this e-mail chain and the

14 attachment that you play a part in?

15 A. On this and other occasions, Mr. Mullaney told me that

16 there were certain members of Team 23 who were no longer

17 subjects of their investigation, or targets. They were people

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18 whose statements he wanted to get. So I physically pulled

19 those statements out, reviewed them to see whether I thought

20 there was any information in those that might come from

21 compelled statements of other Team 23 members who were still

22 potential subjects, and I would provide to Mr. Mullaney the

23 sworn statement of the people who were no longer subjects.

24 And I also would look to the interview reports for

25 the oral interviews of the Team 23 members who were no longer

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 69 of 106

1 subjects, and try to give him the portion of that interview

2 report that reflected the interview of those Team 23 members

3 who were no longer subjects, but I would redact out of those

4 interview reports information that came from Team 23 members

5 who were still potential subjects or targets.

6 Q. So the attachment then to this e-mail, which is on

7 DOJ-001655, and the next page, does that reflect some of your

8 handiwork in redacting documents for Mr. Mullaney?

9 A. Yes.

10 Q. Now, apart from document questions you may have gotten

11 from Mr. Mullaney directly, did you on occasion also receive

12 questions from Mr. Tampio as far as what was proper or improper

13 for the clean team to look at?

14 A. Yes.

15 Q. If you could turn to .the next page, which is DOJ Bates

16 001452, and I'll put it up on the Elmo. Now, these two

17 e-mails, what do these e-mails reflect happening?

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18 A. Mr. Carpenter, Ted Carpenter, was in the RSO in Baghdad.

19 He was somebody that Mr. Tampio was dealing with directly on

20 this. Mr. Carpenter was on the tainted side, as was Mr.

21 Tampio. Mr. Carpenter was following the protocol by passing on

22 to Mr. Tampio a request that the FBI wanted certain

23 information. So he was passing on to Mr. Tampio, and then Mr.

24 Tampio passing on to me information for review before it would

25 go to the investigators on the clean side.

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 71 of 106

1 Q. And then what would be you looking for when you got the

2 documents?

3 A. I would review these documents to determine whether there

4 were any statements by Team 23 members who were still subjects

5 or 'targets of the investigation.

6 Q. And then just finish the process. What would you do once

7 you made that determination?

8 A. So there could be two things to do. One would be a

9 categorical no, they can't have this document. And the other

10 would be, if there was a portion of the document that I thought

11 they could have because it didn't come from a Team 23 member

12 who remained a subject or target, then I would redact out the .

13 portions that I thought the clean team should not have, and

14 give them the rest.

15 Q. Now, getting back to your legal viewpoint as far as the

16 risk benefit about disclosing certain State Department

17 documents to the clean time, let me ask you a couple more

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18 questions about that.

19 A. Yes.
7

20 Q. Did you explain to anyone on the clean team your viewpoint

21 that caution was needed concerning whether or not they should

22 look at the oral interviews?

23 A. I believe I conveyed that to Mr. Mullaney, and I certainly

24 had discussions with Mr. Tampio about that issue.

25 MR. KASTER: I have marked, Your Honor, Government's

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 73 of 106

1 Exhibit Number 57 for identification. Your Honor, with no

2 objection from the defense counsel, I would offer it into

3 evidence at this time.

4 THE COURT: Admitted.

5 (Government's Exhibit Number 57 received in evidence.)

6 BY MR. KASTER:

7 Q. Okay, Mr. Hulser, do you have Government's Exhibit 57 in

8 front ofyou?

9 A. I do.

10 Q. Okay. Now, did there come a time in December of '07 where

11 you learned that the clean team, the investigating team, wanted

12 to actually talk to the RSO?

13 A. Yes.

14 Q. And what was your reaction to the notion that they could

15 talk to the RSO?

16 A. My reaction was that that was a risky thing to do because

17 the RSO had been exposed to statements by Team 23 members.

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18 Q. Okay. And did they relay to you sort of their rationale

19 for what kind of information they hoped to get from the RSO?

20 A. I think they understood that they shouldn't be trying to

21 get information from anyone on the tainted side about what the

22 Team 23 members had said in their statements. So they would

23 leave that out of their questioning, and they were willing to

24 just focus on the mechanics of what happened immediately after

25 the shooting back in the TOC, as they referred to it.

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 75 of 106

1 Q. And let me have you look at Government's Exhibit 57, then.

2 A. Yes.

3 Q. The e-mail chain that comprises the first page, or two

4 pages, of Government 57, what does that reflect?

5 A. They were asking to speak with the RSO and his deputy, and

6 my response back to Mr. Mullaney was, are you sure you need to

7 interview them at this point? In evaluating the risks, you can

8 decide later that you absolutely must talk to them, and then

9 the benefit of talking to them outweighs whatever risk there

10 might be to being exposed to their information. So I'm asking

11 how much do you need to talk to them. And then I explain why I

12 had concerns about the statements that took place even before

13 the written statements on September 18th.

14 Q. And do you describe for Mr. Mullaney your assessment of

15 the risk that would be posed by such an interview?

16 A. Yes, I do.

17 Q. And is that reflected here in the e-mail at the top, on

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18 the December loth, 2007, e-mail that you wrote back to

19 Mr. Mullaney?

20 A. Yes.

2 1 Q. A moment ago you looked at an e-mail from Mr. Carpenter

22 where he had forwarded some documents to Mr. Tampio; do you

23 recall that?

24 A. Yes.

25 Q. Okay. Did that request for documents prompt any e-mail

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 77 of 106

1 exchange between you and Mr. Tampio concerning this topic of

2 your legal guidance to the clean team, as far as what they

3 could look at?

4 A. If you could point me to it.

5 Q. Sure. Within Government's Exhibit 57, if you could turn

6 three pages in, which is DOJ-001453.

7 A. Yes.

8 Q. And, in particular, I guess the second e-mail there, does

9 that reflect an e-mail from you to Mr. Tampio dated January 15,

10 2008?

11 A. Yes. So I am conveying to Mr. Tampio the same thing that

12 I conveyed to Mr. Mullaney in December, which was that the

13 earlier statements even before September 18th may be a problem.

14 Q. The first sentence there that reads, Jesse, I have been

15 taking a conservative approach regarding any statements taken

16 after the 9/16 incident, whether they occurred before or after

17 the sworn written statements.

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18 A. Yes.

19 Q. What was the basis for your conservative approach?

20 A. It involves evaluating the risks of being exposed to those

21 materials. Until a Court later could look at all of the facts

22 surrounding how the statements were obtained on 9/16, we

23 couldn't be sure that they would be free from compulsion. And

24 so unless you really need those at this point in the

25 investigation, you shouldn't get them because there's a risk

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1 that those statements themselves may be tainted.

2 MR. KASTER: Your Honor, I actually was about to

3 start off slightly in a different direction. I don't know if

4 the Court wants me to do that, continue on. I think it's five

5 minutes 'till, if you wanted me to stop.

6 THE COLTRT: It's about ten 'till. We can stop at

7 this point.

8 MR. KASTER: Very well. Thank you, Your Honor.

9 THE COURT: All right, sir, you can step down.

10 You're not prohibited from speaking to the government about

11 your testimony because you have not been submitted for

12 cross-examination.

13 THE WITNESS: Thank you, Judge.

14 THE COURT: All right, unless there's anything

15 further tonight, we will simply resume at 10:OO tomorrow

16 morning.

17 MR. HULKOWER: If I can raise one issue. We have had

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18 discussions with the government about a discovery issue that is

19 going to be ripe very quickly as the prosecuting attorneys take

20 the stand. And that is, we have requested repeatedly over a

2 1 period of time that we would receive access to the prosecution

22 memo in this case. And what that is, that's a memo prepared by

23 the prosecutors, Mr. Kohl and Mr. Malis, that goes to the very

24 subject of the case.

25 Not only does it discuss the Kastigar issue and the

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Official Court Reporter
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1 potential for taint, it also lays out the information that

2 they're using to convince their higher-ups that they should be

3 allowed to bring this case. It relates directly to the topic

4 of the testimony, which is what evidence was relied upon.

5 So, therefore, it strikes us as quintessential

6 Jencks, both because it deals with the Kastigar issue, and it

7 discusses the evidence that is being used by the prosecutors.

8 We have been given two small redacted pieces from

9 that document, but in no way does it give us the information

10 that's being used to convince the higher-ups to allow us to

11 cross-examine the prosecutors on whether they used tainted

12 information. And it doesn't give the prosecutors own

13 statements about the taint issue that we can use to

14 cross-examine them.

15 I'm not sure why we haven't gotten it, since it

16 relates directly to the subject of their testimony, which is

17 the evidence and the taint issue, but in conversations with Mr.
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18 Kaster, who I generally found to be reasonable in this case, I

19 have not been able to get the document. And because they're

20 going to start putting the prosecutors on tomorrow, I hope, I'd

2 1 like to get the document.

22 THE COURT: Mr. Kaster.

23 MR. KASTER: Your Honor, the reason that I have not

24 been -- I've been unable to meet this request is, there's

25 several reasons, actually. First, just so the Court knows what

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 83 of 106

we're talking about, the prosecution memo is a document that

the trial team prosecutors prepared prior to the indictment in

the case, and it summarizes essentially classic attorney work

product, mental impressions, their assessment of the strengths

and the weaknesses.

THE COURT: Hold on just one minute.

(There was a pause in the proceedings.)

THE COURT: All right.

You said that the prosecution memo actually

summarizes.

MR. KASTER: Yes, it is a summary of the line

prosecutors' views of their entire case. It's classic attorney

work product, the mental impressions of those two prosecutors

concerning the strengths and the weaknesses of their case that

they will be presenting to this Court at trial. It covers a

whole gambit of issues before the Court, including venue, MEJA,

a self-defense issue concerning the merits, the underlying

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18 charges, and as such it is (A) not a substantially verbatim

19 document for what they're going to testify here today or

20 tomorrow, Your Honor, in this Kastigar hearing. And, two,

21 their thoughts and explication of what the law is, is not

22 something that the defense counsel, I would submit, is entitled

23 to.

24 So what we have done, Your Honor, is, we have

25 reviewed the document, Mr. Dittoe and myself, we actually

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 85 of 106

1 reviewed drafts to see if there was any Brady information on

2 this Kastigar issue. In a draft we found a blurb, an excerpt

3 dealing with the issue that Mr. Schertler raised concerning his

4 client. And the fact that, just to refresh the Court's

5 recollection, Mr. Schertler indicated that Mr. Kohl had made a

6 sort of an initial inquiry concerning potential disposition of

7 the case and referenced Mr. Heard's oral interview of September

8 16th. And so we found that in a draft, and so we pulled that

9 out and we produced that to Mr. Schertler.

10 We have also gone through the prosecutors' e-mails

11 and their notes to see if there was any other Brady, but also

12 we produced those e-mails that were relevant to this hearing as

13 Jencks. And within that, the defense does have e-mails

14 reflecting before the finalization of the prosecution memo,

15 some discussions among the prosecutors as far as the

16 GarrityIKastigar issue.

17 THE COURT: Have you produced those?

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18 MR. KASTER: We did produce those, Your Honor. But

19 we felt that we could do that, but we had to respectfully

20 decline Mr. Hulkower's request to get the entire prosecution

2 1 memo, which as I said, is essentially the road map for the

22 prosecutors for how they're going to try their case and how

23 they're going to present it to the Court.

24 And we would submit that it would be entirely unfair

25 for .the defense to have that under the guise of the Kastigar

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 87 of 106

1 hearing, to be able to have that document in-hand going forward

2 to trial, knowing the prosecutors assessment on all of these

3 issues as far as the strengths and weaknesses of their case.

4 And so for those reasons we feel that the defense's

5 request should be denied.

6 MR. HULKOWER: Briefly, they can get rid of MEJA and

7 venue. That has nothing to do with Kastigar. I'm not looking

8 for that.

9 The claim that this is work product, we are so far

10 beyond a work product claim here, because they recognize as

11 Jencks that we get Mr. Kohl's statements. We are looking at

12 documents right now that have legal debates, and we're going to

13 be seeing more of them tomorrow, legal debates between

14 Mr. Hulser and Mr. Kohl about what the law requires for Garrity

15 material. So we are beyond the work product analysis.

16' What we -- this is verbatim because it is the

17 verbatim statement of the prosecutor. It is the prosecutor's

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18 own writing which I believe in section A4 of Jencks Act is

19 covered, writings by the witness. This is a writing by the

20 witness, so there's no question it's verbatim.

21 As far as work product, if the Court looks through

22 the documents the prosecutor's produced to this point, and by

23 the prosecutor I mean Mr. Kaster, we are getting into, as we

24 have to with these witnesses, what their thoughts process was.

25 They are asking Mr. Hulser what his thought process was. They

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 89 of 106

1 will be asking, I am confident, because it's directly on point,

2 Mr. ~ a l i and
s Mr. Kohl what their thought process was. And how

3 we can cross-examine them if we don't have the most direct

4 statement by them as to what their thought process was and how

5 they are using the evidence, and we believe the tainted

6 evidence, which Mr. Hulser has already told us today in his

7 brief period, they never should have gotten hold of. This is

8 depriving us of what is critical Jencks.

9 We're not looking for the road map. We're looking

10 for the evidence they used to convince their higher-ups to let

11 this case go forward. Because if they used tainted evidence --

12 THE COURT: I'm not clear. What is it in these memos

13 that's going to be persuasive on the issue of taint?

14 NIR. HULKOWER: Two things, Your Honor.

15 THE COURT: You expect this memo to say we want to

16 use tainted evidence, but this is how we're going to do it?

17 NIR. HULKOWER: No, I don't think it will, because

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18 even when Mr. Kohl is asking and taking evidence in this case

19 that Mr. Hulser has said is tainted, and we'll see that

20 tomorrow --

21 THE COURT: What is the Garrity issue in this case as

22 it currently stands? There's no Garrity issue, the government

23 has conceded that a certain group of statements cannot be used.

24 They're not going to use them. So what's the residual Garrity

25 issue?

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 91 of 106

1 MR. HULKOWER: I think the residual Garrity issue, I

2 think the only thing they're holding out on is what Mr. Hulser

3 was talking about today, which are the December 16th oral

4 statements that Mr. Hulser said they shouldn't get because

5 they're part of the same process, and the Court could

6 reasonably believe they are compelled. That's what they're

7 still holding out on.

8 And what we believe is, if there is evidence to be

9 found of the prosecutors using it, clearly it will be in the

10 memo where they lay out their evidence. They're not going to

11 say this is tinted evidence, but we should see what their

12 evidence is that they're using, what they're claiming.

13 THE COURT: Let me see. So if Mr. Hulser has a

14 difference of opinion with Mr. Kohl about whether the December

15 16th--

16 MR. HULKOWER: I'm sorry, September 16th. That was

17 September.
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18 THE COURT: All right, September 16th statements.

19 All right, now I'm back on track.

20 MR. HULKOWER: I took you down the wrong road.

21 THE COURT: The September 16th oral statements that

22 were memorialized but not signed.

23 MR. HULKOWER: Right.

24 THE COURT: So if Mr. Kohl says, no, these statements

25 are good to go, and Mr. Hulser says, no, these statements are

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 93 of 106

1 not good to go, how does that entitle you to them?

2 MR. HULKOWER: First of all, we have already seen,

3 we've already been given some evidence of it, which falls right

4 into that category.

5 THE COURT: Of what?

6 MR. HULKOWER: Of Mr. Hulser saying no, and Mr. Kohl

7 saying yes. So it seems clear that you can't give us -- they

8 can't give us, part of the work product and withhold the rest

9 and say, well, this is other work product, because we've

10 already gotten the no versus yes.

11 But where it's relevant, Your Honor, and I think this .

12 is where the rubber meets the road, is, Mr. Hulser was

13 interposed as the filter team, or the taint team, because he

14 had expertise from his role at Public Integrity dealing with

15 government officials. He knew Garrity, which he said was a

16 somewhat esoteric topic, not a lot of people understood. He

17 knew Kastigar, and he was put in there to protect the

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18 prosecutors, to protect the agents from taint. That's why they

19 make such a big deal about these newspaper articles.

20 THE COURT: And are you all claiming that the

21 September 16th statements were put, indeed, before the grand

22 jury?

23 MR. HULKOWER: Witnesses who had access to the

24 September 16th statements were put in front of the grand jury.

25 We think that there is some testimony already in the record

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 95 of 106

1 that we can point to that witness have said, such as

2 Mr. Murphy --

3 THE COURT: How would you impeach, let's say Mr.

4 Kohl, when he says, no, this is good stuff, this is fine, this

5 is Garrity, this is okay. And Mr. Hulser says, well, no, I

6 don't think so, I have a difference of opinion, how would you

7 windup impeaching Mr. Kohl.

8 MR. HULKOWER: Well, it's not just a difference of

9 opinion. It's almost like if you and I had a difference of

10 opinion on the law.

11 THE COURT: I can't conceive that.

12 MR. HULKOWER: But you win. You're the judge. You

13 win. Here we have the taint team attorney who is in there to

14 be the judge of this evidence, and he says, stay away from it,

15 Ken, it's bad evidence. He says it 15 times. And we've heard

16 all the efforts the prosecution team made willy-nilly to get

17 their hands on the Carpenter stuff, the Lopez stuff.

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18 I understand the evidence coming somewhat

19 disjointedly, but when one look at it chronologically, what's

20 happening here, Judge, is, the taint team is saying, you

21 shouldn't get it. They're saying time and again, don't get the

22 oral statements; you shouldn't get the oral statements. And

23 the prosecutors are doing everything they can to get the oral

24 statements. Ultimately running an end-run and not even telling

25 Mr. Hulser some of what they're doing to get the oral

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 97 of 106

1 statements.

2 So it's to us classic impeachment of Mr. Kohl that

3 not only is he accessing this material that he's being told not

4 to, but that at some point he also, and we believe the evidence

5 will show this, we certainly have seen signs of it in the

6 documents, he's not telling Mr. Hulser, the taint attorney,

7 that he's getting this stuff. And this is the kind of stuff

8 that Mr. Hulser has already given advice about.

9 THE COURT: But wouldn't you already be able to

10 impeach Mr. Kohl based on what Mr. Hulser said by showing that

11 indeed Mr. Kohl did not follow Mr. Hulser's advice?

12 MR. HULKOWER: Well, certainly we will do that. But

13 it's always better impeaching somebody with their own

14 statements. I mean, I think Mr. Kohl is imminently impeachable

15 by the fact that the expert from DOJ who is put in by the real

16 high-ups that we've heard about to review this stuff, says,

17 don't. And Ken says, yes. And he says, don't. And Ken goes
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18 and does it. But Ken's words, even more so, as would be found

19 in documents like that --

20 THE COURT: Will you be able to ask Mr. Kohl, aren't

2 1 there instances where you had a difference of opinion with

22 Mr. Hulser and did not take his expert advice about using

23 certain evidence, and then ask him what that evidence is,

24 wouldn't you able to do that?

25 MR. HULKOWER: I mean, certainly we have, I think,

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 99 of 106

1 very good impeachment with what we're going to hear and what we

2 have already heard from Mr. Hulser and what we've seen in the

3 documents, but there's more impeachment out there. And if it's

4 in Mr. Kohl's work product, it is Jencks. We have already

5 received some of the work product. There's no valid claim at

6 this point to withhold work product that I see, and it really

7 does go to Mr. Kohl's decision-making process here.

8 And since they're going to put him up, it seems to us

9 that we're going to need -- they've back-loaded their case in

10 the sense that the heavy weight witnesses are about to hit the

11 stand right now, the prosecutors who made the decisions, the

12 ones who knowingly walked into the mine field of taint. And

13 impeachment is going to be very important here.

14 And it's not just the impeachment with what

15 Mr. Hulser said, but we also think it's impeachment with what

16 they said. And if we don't have the documents in Mr. Kohl's

17 own words, like this pros. memo, then he can deny it, and we
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18 have to take him at his word. And that deprives us of our

19 ability to impeach.

20 THE COURT: I understand your position.

21 MR. HULKOWER: Thank you. And I'm sorry for taking

22 time with this.

23 MR. KASTER: I will definitely put myself on the

24 clock. If I could respond very briefly.

25 The evidence in the record, they have it. They have

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 101 of 106

1 everything. They have all the grand jury testimony, they have

2 the grand jury minutes about what Mr. Kohl said in front of the

3 grand jury.

4 The question -- they have these e-mails between Mr.

5 Kohl, an e-mail where he's talking about his legal theory as

6 far as whether or not the oral statements were protected under

7 Garrity or not. They have all of those. They have all of

8 Mr. Hulser's e-mails on the same topic.

9 So in terms of the types of relevant material that

10 they would need to impeach or question Mr. Kohl concerning his

11 differing legal opinion from Mr. Hulser, they have all that.

12 This perhaps is an example of no good deed goes

13 unpunished, all our efforts to get them all of this

14 information. And it's true, we even gave them some e-mails

15 where Mr. Kohl is describing his legal theory as to this issue

16 of whether the oral statements are covered leads them to try to

17 expand it into a demand for the entire pros. memo.

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18 I think, Your Honor, ultimately it comes down to a

19 question of fairness in light of all the information they have

20 to test the witness' position on these issues. They don't need

-21 this.

22 THE COURT: All right, thank you. Well, I can easily

23 understand why the defense would want this. It would make a

24 potentially very useful and powerful bit of information in

25 evidence.

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Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 103 of 106

1 But I think, Mr. Hulkower, it's more in the nature of

2 discovery than it is actually Jencks. I think that in weighing

3 what you've got and what you want, and considering that what

4 you're asking for is material out of the government's kind of

5 trial book, the thinking that's gone into the formation of the

6 prosecution in this case, that it does tilt in the direction of

7 being work product.

8 And, therefore, your request is denied.

9 MR. HULKOWER: Thank you, Your Honor. There's much

10 I'd like to say, but discretion being the better part of valor,

11 I'm sitting down.

12 MR. HEBERLIG: Briefly, I neglected to move in during

13 the Patarini cross Exhibits 5 1, 52 and 53-R, which were two

14 302s of Mia Johnson and her Powerpoint, and I'd ask that they

15 be admitted at this time.

16 MR. DITTOE: No objection.

17 THE COURT: Admitted.

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18 (Defendant's Exhibits Number 5 1,52 and 53-R

19 received in evidence.)

20 THE COURT: All right, have a good evening. See you

21 tomorrow morning at 10:OO.

22 (Proceedings concluded.)

23

Linda L. Russo, RPR

Official Court Reporter
 Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 105 of 106

1 CERTIFICATE

2 I, LINDA L. RUSSO, Official Court Reporter, certify

3 that the foregoing pages are a correct transcript from the

4 record of proceedings in the above-entitled matter.

7
Linda L. Russo, RPR
8 Virginia CCR No: 03 13 102

10

11

12

13

14

15

16

17
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Linda L. Russo, RPR

Official Court Reporter