The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Monday, November 10, 1997 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 69)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:45 a.m., on the 10th day of November,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 8:45 a.m.)
THE COURT: Be seated, please.
Counsel approach the bench.
(At the bench:)
(Bench Conference 69B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
(Jury in at 9:48 a.m.)
THE COURT: Members of the jury, good morning.
JURY: Good morning.
THE COURT: Hope you didn't have too much trouble in
icy weather this morning. We appreciate everybody being on
time.
And you have new seats this week, so each of you get a
little different view of the courtroom in this manner, and
we'll change the seats again as we go along each week.
You'll recall that when we recessed on Friday, early
Friday afternoon, we were hearing testimony from Mr. James
Cadigan, the FBI agent, on cross-examination by Mr. Tigar, and
we'll pick up where we left off.
Mr. Cadigan, if you'll resume the stand under the oath
earlier taken.
THE WITNESS: Thank you, sir.
(James Cadigan was recalled to the stand.)
THE COURT: Mr. Tigar, you may continue.
CROSS-EXAMINATION CONTINUED
BY MR. TIGAR:
Q. Mr. Cadigan, do you know when the crime occurred where the
lock was recovered?
A. No, sir.
Q. Do you know if the lock was in such a condition at the time
James Cadigan - Cross
it was found that it could be removed without using a key, or
if it was necessary to put a key in it to take it from the
hasp?
A. I don't know.
Q. Do you know if somebody dropped the lock between the time
it was recovered and the time you came to court?
A. By the time I came to court, yes.
Q. Who dropped it?
A. Well, Mr. Hartzler dropped it at one time when we were
looking at it.
Q. All right. And do you know if the lock was dropped by
anyone between the time it was recovered at the crime scene and
the time you examined it?
A. No, I do not.
Q. Do you teach crime-scene procedures at the FBI -- whatever
it is, in Quantico?
A. I teach schools on trajectory, bullet trajectory, and
crime-scene analysis, yes.
Q. And would you agree with me, sir, that before tool mark
evidence is admitted to the FBI Laboratory, it should be packed
to preserve the evidence and prevent contamination?
A. It should be sealed, yes, sir.
Q. No, I didn't ask you that, sir. Do you agree with me that
the evidence should be packed to preserve the evidence and
prevent contamination?
James Cadigan - Cross
A. Yes.
Q. And in fact, sir, that caution is contained in a book
entitled Handbook of Forensic Science, is it not?
A. I'm sure it is, if that's our manual, yes, sir.
Q. That's -- and I'm going to hold it up, sir, this handbook.
That's your book; right?
A. That's the one produced by the laboratory, yes, sir.
Q. You wrote a portion of it; is that correct?
A. I edited a portion of it, yes, sir.
Q. Which portion did you edit?
A. That on tool marks and casting.
Q. Tool mark, what, sir?
A. Tool marks and casting of tool marks.
Q. So did you edit the portion labeled, "Submitting Tool Mark
Evidence"?
A. I'd have to look at it.
MR. TIGAR: I'm sorry, your Honor, may I --
THE WITNESS: Yes, sir.
BY MR. TIGAR:
Q. Asking you, sir, to look at the orange tabs there and at
one of them -- there we are -- page 64. Would you look at that
and tell the jury if that refreshes your recollection as to
whether or not you identified the portion "Submitting Tool Mark
Evidence."
A. I probably edited this. This is not my verbiage, but I'm
James Cadigan - Cross
sure I looked at it before it was published.
Q. You certainly didn't disagree with it; is that right?
A. Correct.
Q. Now, when you teach crime-scene procedures, you teach
people to gather the evidence carefully; is that right?
A. Yes, sir.
Q. You teach them to label the evidence carefully; is that
right?
A. Yes, sir.
Q. You teach them to package the evidence carefully; is that
right?
A. Yes, sir.
Q. You teach them to write down the description of the
evidence on some kind of property report at or about the time
it was recovered; is that right?
A. I'm not sure that I would teach that, but there should be
some recording of the evidence as it's recovered as to where
it's recovered and marks as to who recovered it, yes, sir.
Q. And that -- those -- that recording should be done as close
to the time as the evidence is recovered as possible; correct?
A. As is possible, yes, sir.
Q. In fact in the FBI Laboratory, you have a very elaborate
system for showing how things are handled and when they're
passed from one person to another; is that correct?
A. Yes, sir.
James Cadigan - Cross
Q. And in addition you would expect the evidence to be kept
under circumstances that prevents people from fooling with it;
correct?
A. Absolutely.
Q. Because you understand that subsequent handling of the
evidence could affect its value for forensic purposes; is that
correct?
A. That's correct.
Q. And now, do you know whether any of the steps we've just
described were followed with respect to the Master padlock,
pictures of which you have testified about today?
A. No, sir. Other than the -- when it was -- when I received
it and from that time until I returned it, I know what happened
to it; but before I got it, no, sir.
Q. I understand. Do you know when it came into FBI custody?
A. No, sir.
Q. You just know it had to come into custody sometime before
you looked at it; right?
A. That's correct.
Q. And you looked at it, again, when?
A. In July, and then returned it in August, the first time.
Q. By the way, you conducted a number of examinations of many
tools -- is that right -- in connection with this case?
A. Yes, sir.
Q. Do you have an estimate of how many tools you examined from
James Cadigan - Cross
Mr. Nichols' home?
A. No, I don't.
Q. Now, in your direct examination, sir, you talked about the
test impression that was made; correct?
A. Yes, sir.
Q. In lead.
A. Yes, sir.
Q. Did you make the test impression, yourself?
A. Yes, I did.
Q. You used a drill press?
A. Yes, sir.
Q. Now, a drill press is an item that -- a drill that's
mounted on a stand and permits you to rotate a lever and bring
the drill bit down into contact with the material being
drilled; is that right?
A. Yes, sir.
Q. When you did the test impression, did you leave the drill
pinning, or did you stop the drill in the test material and
then pull the drill bit up off?
A. I pulled the drill up as it was still spinning.
Q. Now, were you careful to hold the test impression material
in the same location and not let it move around while you were
doing the drilling?
A. Yes, sir.
Q. I'm going to place on the ELMO what has been received in
James Cadigan - Cross
evidence as Government's Exhibit 1843.
Turn on the light. There we go.
Now, do you notice the red mark on the left side
there? See where my finger's pointing?
A. Yes, sir.
Q. What is that?
A. That is a mark that I placed there to orient the test
impression.
Q. Okay. So that you could look at it and take your pictures;
right?
A. Yes, sir.
Q. Now, these edges here that I'm showing with my fingers, see
that -- would you fairly describe those as jagged?
A. Yes, sir.
Q. And this one here, would you fairly describe that as
jagged?
A. Yes, sir.
Q. Now, I'm going to place what has been received as
Government's Exhibit 155. You see that there are minor
variations along this surface and along this surface; is that
right?
A. Yes, sir.
Q. Would you agree with me that these two impressions here and
here on the test impression are much more jagged than the
cutting surfaces that are depicted on 155?
James Cadigan - Cross
A. Yes, sir.
Q. And yet there can be no question in the world that the test
impression, 1843, was made with the drill, 155; correct?
A. That's correct.
Q. All right. Now, in addition to the lock that you showed
us, that drill mark that you have shown pictures of was drilled
down into the lock; correct?
A. Yes, sir.
Q. In fact, you had to remove some pieces of the stacked
plates of the lock in order to get a better look at it; is that
right?
A. That is correct.
Q. The lock in question, just to refresh our recollection
here, is -- if I could put up what's been received as
Government Exhibit 127 -- is a Master padlock, and these little
things here, those are actually stacked pieces of metal; is
that right?
A. Yes, sir.
Q. And they're held in place by rivets?
A. Yes, sir.
Q. Now, do you know where the lock was when it was being
drilled?
A. No, sir.
Q. Okay. Now, from your examination, it's clear -- well -- do
you know whether or not the lock was drilled with a drill or a
James Cadigan - Cross
drill press?
A. I don't know that -- what it was drilled with. I know the
drill bit that was used.
Q. Okay. That's your direct testimony, sir.
MR. TIGAR: I ask that answer be stricken, your Honor,
non-responsive.
THE COURT: Motion is granted, stricken.
BY MR. TIGAR:
Q. If one holds a drill, a regular household drill and
attempts to drill it -- to drill upwards, right, into
something, would you expect that portions of the material being
drilled are going to drop down into the chuck?
A. Possibly.
Q. Did you make an examination of the tool -- the drill or the
drill bit -- to see if evidence recovered at the crime scene
would permit you to see if anything had stuck to the drill or
the drill bit?
A. I don't understand your question.
Q. Did you make an examination of any shavings that had been
adhering to the chuck or recovered from the crime scene?
A. No, sir.
Q. Now, if someone is drilling with a household drill and
you're drilling upwards and underneath, as if I were going to
drill up underneath this lectern, would you expect that I would
not be able to hold the drill as steady as I would if I was
James Cadigan - Cross
using a drill press?
A. Probably, yes, sir.
Q. And in fact, does the lock, as you examined it, show signs
that the drill wiggled, as the drill hole was being made?
A. Wiggled.
Q. Wiggled back and forth as opposed to being held steady as a
drill press would?
A. I don't know that there were signs of that, but it
certainly could happen.
Q. And one could -- you know, we don't have to be, you know,
experts in the field to take a look at that hole and see
whether or not it looks like the thing had wiggled?
A. Yes, sir.
Q. Okay. Now, you told us that the drill hole was made down
inside the lock; is that correct?
A. Yes, sir.
Q. Now, when someone drills, as the drill penetrates into the
material, shavings or debris from the item being drilled are
going to come loose; is that right?
A. Yes, sir.
Q. Some of those will be carried out by the flutes of the
drill, those things that go around; is that right?
A. That's their design, yes, sir.
Q. And some of those things will remain in the hole and start
to scar the material being drilled; isn't that right?
James Cadigan - Cross
A. They could.
Q. Now, in metallurgy, are you familiar with the phenomenon of
compression of the drilled material when a drill bit is being
used to drill metal?
A. No, I'm not a metallurgist.
Q. I didn't ask you whether you were a metallurgist; I just
asked you whether you were familiar with it.
A. You said in metallurgy, and I'm not a --
Q. Okay. Whether in metallurgy or not in metallurgy, are you
familiar with the phenomenon of compression of the material
that's being drilled by the heat and pressure of the drill bit?
A. Other than knowing that that would happen, yes; but I'm not
familiar --
Q. We don't have to be experts in metallurgy to know that;
we've all seen it; right?
A. Yes, sir.
Q. That is to say, if we go and try to drill a piece of metal
at home, the pieces of the metal are going to get caught and
start scarring up the piece that we're working on; right?
A. They could, yes, sir.
Q. All right. Now, you testified on direct examination that
the hole size was a quarter of an inch; correct?
A. Yes, sir.
Q. Did you measure it?
A. Yes, I did.
James Cadigan - Cross
Q. What did you measure it with?
A. Ruler.
Q. A ruler?
A. Yes, sir.
Q. And it's a quarter of an inch?
A. In diameter, yes, sir.
Q. In diameter, all right. Now, did you measure the drill
bit?
A. Yes, sir.
Q. What's the diameter of the drill bit?
A. One-fourth of an inch in diameter.
Q. I understand the drill bit is rated. I'll show you what's
been received as Government's 245, if I may.
MR. TIGAR: Has that not been received?
THE COURTROOM DEPUTY: It has not been received.
MR. TIGAR: Pardon me. Has 154 been received? Excuse
me, sorry.
THE COURTROOM DEPUTY: No.
MR. TIGAR: No, all right.
BY MR. TIGAR:
Q. When you examined the drill, did you see a mark on it that
indicated that it said a quarter of an inch?
A. The drill bit, yes, sir.
Q. Yes, sir.
A. Uh-huh.
James Cadigan - Cross
Q. Now, do you know what the actual measurement in diameter of
a standard quarter-inch drill bit?
A. It's approximately one-fourth of an inch.
Q. Isn't it a fact that it's .236 inches?
A. .236?
Q. Yes, sir.
A. Certainly could be.
Q. Are you telling us that you don't know whether it is or
not?
A. I don't know that that's the standard diameter of
one-quarter-inch drill bit, no, sir.
Q. And .236 is approximately 16/54, isn't it?
A. I don't know.
Q. Did anyone under your direction collect a bunch of
quarter-inch drill bits?
A. Yes, sir.
Q. You told us that they did.
A. Yes, sir.
Q. Did they measure those drill bits?
A. Measure each one of them?
Q. Yes, sir.
A. No.
Q. Did they measure some of them?
A. I don't recall if we did or not.
Q. And if you don't recall whether they did or not, you don't
James Cadigan - Cross
recall what they found when they measured them; is that right?
A. That's correct.
Q. I'm going to show you what -- an item received in
discovery.
MR. TIGAR: May I approach, your Honor?
THE COURT: Yes.
BY MR. TIGAR:
Q. Now, some of that is your handwriting; correct?
A. Yes, sir.
Q. I'm going to ask you to take a look at that and see if that
refreshes your recollection that someone under your direction
measured the drill bit.
A. Right. Yes, sir.
Q. And what did they find is the diameter of a quarter-inch
drill bit?
A. .236 inches.
Q. Thank you, sir.
Now, .236 -- excuse me.
.236 inches is about 15 --
MR. ORENSTEIN: I'm sorry. May I see what the witness
was shown?
MR. TIGAR: I'm sorry?
MR. ORENSTEIN: May I see what the witness was shown?
MR. TIGAR: I'm sorry. Thank you.
MR. ORENSTEIN: Thank you.
James Cadigan - Cross
MR. TIGAR: Thank you.
BY MR. TIGAR:
Q. .236 is about 16/54, isn't it?
A. I guess. I don't know.
Q. We could do the arithmetic?
A. Yes, sir.
Q. Now, you told us that on a given day, the same machine can
make thousands of drill bits; correct?
A. Yes, sir.
Q. And in fact, from your experience, in the modern industry,
the same machine does make thousands of drill bits every day;
right?
A. Yes, sir. That's correct.
Q. And in the process of making, a piece of bar stock is
pulled, machined, tempered, and ground; is that right?
A. Yes, sir.
Q. All of those processes?
A. Most of the time, yes, sir.
Q. And in modern manufacture, that is an automated process;
correct?
A. Yes, sir.
Q. Now, after you -- you said you looked at these -- the lead
impression that you made and the photograph of the lock through
a comparison microscope; isn't that right?
A. I didn't look at a photograph of the lock.
James Cadigan - Cross
Q. You looked at the actual -- you looked at the test
impression and the lock itself through a comparison microscope?
A. That's correct.
Q. And you took photographs?
A. Yes.
Q. Now, that comparison microscope is not stereoscopic, is it?
A. Yes, it would be. The image that you see is
three-dimensional.
Q. You're testifying that the image is three-dimensional?
A. The image that you see, yes.
Q. All right. Now, when you -- your microscope, your
comparison microscope has two objective lenses; is that right?
A. Yes, sir.
Q. And it has two oculars or eye pieces; is that right?
A. That is correct.
Q. And it -- so -- let me understand this. Is what you're
seeing with your left eye and your right eye both images;
right?
A. Yes, sir.
Q. You're seeing both images with each eye, you're not seeing
one with one eye and one with the other?
A. Right. You're seeing both the right stage and the left
stage through -- in a one vision.
Q. Is the left image entirely one item and the right image
entirely the other item, or are both lenses focused on the two
James Cadigan - Cross
items?
A. The one lens -- one part of the microscope is focused on
one side or one part of the -- for instance, in this case, it
would be the lock.
Q. The lock?
A. And one would be focused on the test impression in the
left.
Q. Is it your testimony, sir, that with objective lens, you
could get a stereoscopic or 3-D image of the test impression?
A. No, I see it in 3-D. When I take a picture, it's in two
dimensions.
Q. Yeah. Okay. That was my question, sir. Is it your
testimony that with a single objective lens, you can see
something under that lens in three dimensions?
A. Yes, you can see the depth and also the striations.
Q. All right. Now, I'm going to --
MR. TIGAR: May I approach, your Honor?
THE COURT: Yes.
BY MR. TIGAR:
Q. I'm going to show you, sir, what I have -- do you have the
exhibits that you were shown the other day?
A. No, sir.
MR. TIGAR: May the witness be shown 1842 and 1843.
This and those.
BY MR. TIGAR:
James Cadigan - Cross
Q. Sir, I'm showing you now what has already been received as
Government's Exhibit 1842 and 1843, and the clerk is also
handing you what have been marked as Defendant's Exhibits E, as
in Echo, 1842 and 1843. Would you examine those and tell us
whether the E exhibits are photographic enlargements of the
Government exhibits that bear the corresponding number?
A. Yes, sir.
MR. TIGAR: We offer, them, E1842 and '43.
MR. ORENSTEIN: If they're duplicates, I'm not sure I
understand the purpose, your Honor.
THE COURT: Well, he said they're enlargements.
MR. ORENSTEIN: No objection.
THE COURT: All right. They're received.
BY MR. TIGAR:
Q. Sir, did you notice that 1842 bears a line drawn across it?
Do you see that line?
A. Oh, yes, sir.
Q. All right. Thank you. Now, so that we can orient
ourselves here, sir, I've placed E1842 -- and we're focusing in
on a portion of the striations that you observed; correct, sir?
A. Yes, sir.
Q. Do you -- is it fair to say that these marks here are not
perfect circles?
A. Yes; that's correct.
Q. In fact, they're straight lines here and here, and there's
James Cadigan - Cross
this tinting phenomenon there; is that correct?
A. Yes, sir.
Q. Whereas, if we were to look at 1843, E1843, we would see
something more nearly a perfect circle; correct?
A. That's correct.
Q. And does that indicate to you that either the drill or the
thing being drilled was moved during the process of drilling?
A. It would indicate to me that on Exhibit 1842 that that, as
I testified, the drill bit went through and almost broke
through, but not quite.
Q. Doesn't say anything to you about movement, just lateral
movement, while it's being drilled?
A. It could be.
Q. Could be. All right.
Now, sir, in order that we can make a comparison, I'm
going to cut E1842 along the line that you noticed.
THE COURT: You're cutting a copy, I assume.
MR. TIGAR: Well, your Honor, these are -- we have a
whole copy. This is the exhibit.
THE COURT: All right. Well, we oughtn't to be
cutting up exhibits without prior approval.
MR. TIGAR: I apologize to your Honor, and I will
substitute a copy at the recess.
THE COURT: All right.
BY MR. TIGAR:
James Cadigan - Cross
Q. I've now placed on the ELMO E1843. Let me zoom out here.
Now, if I place this piece here, what's been marked as E1842, I
can see that there are some striations that follow through --
correct -- and some that do not; right?
A. That's correct.
Q. And if I move it around, in different locations, I can see
that, well, here's a striation, but in this area here it
becomes very blurred and this striation here does not match or
follow through; correct?
A. That's correct.
Q. And if I start looking over here, I can see this striation
following through, but I can't see this one following through;
is that right?
A. Yes, sir.
Q. And if I were to take this exhibit, 1842 and 1843, I could
perform that same exercise -- that is to say, looking for
similarities and differences -- around the entire
circumference; correct?
A. You could, yes, sir.
Q. All right. And as I was looking for similarities and
differences, I could note here on E1842 that up in here, in
this area, there's simply nothing that we can see by
striations; correct?
A. There is nothing there, yes, sir.
Q. All right. And in order to look at this and take it and
James Cadigan - Cross
run it around and look at it in different places, these
photographs, which are the ones you took -- I don't have to be
an expert to look for striations there, do I?
A. You don't, no, sir. But I don't use photographs to make
comparisons.
Q. Okay. I understand you use photographs to make
comparisons --
A. No.
THE COURT: That wasn't his answer.
MR. TIGAR: I'm sorry, I didn't hear his answer.
THE WITNESS: The answer was I don't compare one
photograph to the other. I compare the drill-bit impression to
the lock.
BY MR. TIGAR:
Q. I understand, sir, that that's what you do. And of course
the test impression -- right -- and the lock itself are also
available in evidence; right?
A. Yes, sir.
Q. And these photographs are simply a way for us to look at
those; right?
A. That's correct.
MR. TIGAR: Is 1841 in evidence?
THE COURTROOM DEPUTY: Yes.
BY MR. TIGAR:
Q. Now, here is 1841, which is in evidence, and that is a --
James Cadigan - Cross
what are we seeing here, a picture of the lock cylinder?
A. The lock cylinder, yes, sir, with the two impressions.
Q. And if we -- you're saying that members of the jury can
take this lock cylinder and they can look in here, also?
A. Certainly.
Q. Okay. And when they do that, they can see that -- you see
this mark that I'm tracing with the point of the scissors?
A. Yes, sir.
Q. That's a striation; right?
A. Yes, sir.
Q. All right. If you looked on the original lock, you can see
the striation, and they can see that that's not at all
circular; correct?
A. Does not appear on this photograph, no, sir.
Q. Well, and in fact, if we were to look at the original lock,
we would see that there's a mark like that, and that's not
circular; correct?
A. That's correct.
MR. TIGAR: I have nothing further of the witness.
Thank you.
THE COURT: All right.
Mr. Orenstein, you have some redirect?
MR. ORENSTEIN: Yes, your Honor. May I confer for a
moment?
THE COURT: Yes. Oh, 127 was used in the cross, but I
James Cadigan - Cross
don't think it's been admitted. Perhaps we can admit it.
MR. ORENSTEIN: 127.
THE COURT: 127.
MR. ORENSTEIN: I thought I'd offered it, Judge,
but --
MR. TIGAR: No objection, your Honor. It had been
marked as admitted on my copy.
THE COURT: It's received.
REDIRECT EXAMINATION
BY MR. ORENSTEIN:
Q. Good morning, Agent Cadigan.
A. Good morning, sir.
Q. Now, on -- actually, if I may retrieve 127.
MR. ORENSTEIN: I'm sorry, your Honor, I was mistaken.
127 is which exhibit?
MR. TIGAR: It's the picture --
MR. ORENSTEIN: Oh, yes, your Honor. No objection. I
was thinking of 157. I was confused.
THE COURT: 127 is now admitted.
MR. ORENSTEIN: And no objection.
THE COURT: Okay.
BY MR. ORENSTEIN:
Q. Now, you were asked this morning about the photograph of
the test impression, Government Exhibit 1843.
A. Yes, sir.
James Cadigan - Redirect
MR. ORENSTEIN: And could we have that on the screen,
please.
BY MR. ORENSTEIN:
Q. Now, Agent Cadigan, the defense lawyer asked you whether
the cutting surfaces which you looked at when you examined the
tip of the drill bit, 151B, had very minor differences on its
two different cutting edges; do you recall that question?
A. Yes, I do.
Q. Now, looking at Government Exhibit 1843, can you tell the
difference between those two cutting surfaces and striations
that each of one of them has left?
A. Yes, sir.
Q. Now, that jagged line running through the middle of the
photograph, that's the boundry between the two cutting
surfaces; is that correct?
A. Yes, sir.
Q. Could you explain why the boundary is a jagged line?
A. Well, it would be, the -- there are two cutting surfaces on
the tip of the drill bit, and what you're seeing on the left
side would be the impression cut by one portion of the drill
bit, and on the other side would be the other cutting portion
of the drill bit.
Q. And when you lift the drill bit from the cutting surface,
when you're making your test impression, when you raise the --
A. -- drill press.
James Cadigan - Redirect
Q. Thank you, the drill press -- is there any way of
guaranteeing that that boundary line between the two cutting
edges will be raised in an entirely uniform fashion?
A. No.
Q. So that's what produces the jagged edge there?
A. Yes, sir, that's what I think.
Q. Now, if we look at the photograph -- and can you show
how -- just using your light pen, how there are a number of
different striations just between these minorly (sic), these
two cutting surfaces with minor differences?
A. Yes, sir. As you can see, there is -- in this area, there
is a dark area, a space, which is not immediately apparent on
this side. Also on the outer edges, there's a distinct
difference between the striations left by the one cutting edge
and the other.
Q. Now, on cross -- on cross-examination on Friday, the
defense attorney asked if it's your belief that every drill bit
that comes off the line in the manufacturing process is unique
when it leaves the factory. Do you recall that question?
A. Yes, I do.
Q. Could you explain how the manufacturing process produces
unique drill bits.
A. Certainly. As each of the drill bits is pressed against
the grinding wheel --
MR. TIGAR: Object to this, your Honor.
James Cadigan - Redirect
THE COURT: What's the objection?
MR. TIGAR: No foundation for his opinion.
THE COURT: Overruled.
THE WITNESS: As each of the drill bits is placed onto
a particular machine, it's then placed up against a grinding
wheel. And the purpose of the grinding wheel is to sharpen the
tip of the drill bit in order so that it will perform its
function; that is, cut and remove metal.
That wheel has random particles on it that are
presented to each of the tips, the tips of the drill bit, that
are to be sharpened in a random fashion, and that's why from
the first to the 1,000th drill bit produced on a particular
grinding machine, they will be different, because each time
that wheel turns and it scrapes against the drill bit,
articles drop off; and particles of the metal, of the drill
bit, are sharpened and thus produce a unique tip for each one
that's produced.
MR. ORENSTEIN:
Now -- excuse me -- is the grinding wheel that's used in
that process, is that larger than the surface of the drill bit
that it's cutting?
A. Yes, sir.
Q. So you could have one drill bit grinded (sic) against one
part of a wheel and the next drill bit is ground against a
different part of the same wheel?
James Cadigan - Redirect
A. Yes. And normal function is that the wheel is indexed,
which means it's moved for each drill bit. The first drill bit
is sharpened. The first portion of the drill bit is sharpened,
it comes out, the drill bit rotates, it goes back in, and as it
goes back in, it moves just slightly so it hits a different
part of the wheel so a groove is not cut into the grinding
wheel so it wears the grinding wheel evenly. So it hits a
different part of the grinding wheel each time.
Q. Now, is it generally the case that one drill bit, which
has, as you testified, two different surfaces -- will those two
surfaces be cut against the same grinding wheel?
A. Yes, sir.
Q. And obviously it's the same grinding wheel, so it would
produce, one would expect, similar if not the same cuts?
A. It would be similar.
Q. But even with that similarity, again, looking at Government
Exhibit 1843, which is on your screen, does that show the
difference in striations that are left even when the same wheel
cuts one drill bit at two different times?
A. Yes, sir.
Q. Now, if I may redisplay Government Exhibit 157. You were
asked this morning about the possibility of scars being
produced during the drilling process.
A. Yes, sir.
Q. Let me direct your attention to this area on here -- and
James Cadigan - Redirect
this is from the lock itself; is that correct?
A. Yes, sir.
Q. And that's opposed to this side which I'm pointing to which
has the test impression; is that correct?
A. That is correct.
Q. So is this area which I'm indicating with my pen something
that could indicate the kind of scarring you were being asked
about?
A. It could be.
Q. Now, that's not the kind of circular motion that's produced
by a drill; is that correct?
A. That's correct.
Q. That one little mark doesn't tell you anything about the
kind of striations produced --
MR. TIGAR: Object to the leading, your Honor.
THE COURT: Sustained.
MR. ORENSTEIN: Thank you, your Honor.
BY MR. ORENSTEIN:
Q. Now, on cross-examination on Friday, the defense attorney
asked you about the process of sharpening not only the tip of a
drill bit, but also its flutes; do you recall that questioning?
A. Yes, sir.
Q. The marks that you examined on the padlock, Government
Exhibit 126, where were they within the padlock?
A. One was within the lock cylinder.
James Cadigan - Redirect
Q. And based on the position in the lock and the nature of the
marks that you saw, could you tell whether they had been cut
with the tip of a drill bit or its flutes?
A. Well, based on the orientation in the holes in the lock
cylinder, I would say it was the tip of the drill bit.
MR. ORENSTEIN: May I have a moment, your Honor?
I have nothing further. Thank you.
THE COURT: Mr. Tigar.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. Sir, have you had the chance to review some -- any
materials connected with your testimony over the weekend?
A. You mean what I said?
Q. Yes. No, any documents or pictures or photographs or
charts or any materials of any sort related to your testimony.
A. Well, I had my own notes and articles that I was reading.
Q. Okay. And you did not meet with any of the prosecutors
over the weekend; correct?
A. No, sir.
Q. You talked about this business of manufacturing drill bits.
I want to ask you some more about that since it's been gone
into.
In 1995, did the FBI under your direction begin a
study of whether or not a drill-bit mark made in a particular
item could be identified as unique?
James Cadigan - Recross
MR. ORENSTEIN: Object as beyond the scope of
redirect.
THE COURT: Overruled.
THE WITNESS: In probably late 1996, we started to
accumulate drill bits to study them to perhaps provide a more
statistical base for the examination. But the purpose of the
study --
BY MR. TIGAR:
Q. Thank you, sir. You've answered the question. You started
to make a study.
And you were using an analogy to ballistics, weren't
you, sir?
A. I don't know that I was using an analogy to ballistics.
Q. Was an analogy to ballistics being used?
A. If you mean firearms identification.
Q. Yes, firearms identification.
A. Firearms identification is the -- comes in under the
umbrella of the term "tool mark identification."
Q. Well, the study was in this case named "Drill Fire," wasn't
it?
A. It was in this case named "Drill Fire."
Q. All right. And that -- then the term was taken from
another study called "Drug Fire"; right?
A. Well, I mean it was an acronym for it, certainly.
Q. Right. And Drug Fire is a computer profile of ballistics
James Cadigan - Recross
evidence -- correct -- or firearms identification evidence?
A. Cartridge case impressions and -- yes.
Q. And in the field of firearms identification, as we
discussed on Friday, a bullet makes less than one full
revolution before it leaves the barrel of a pistol; correct?
A. Depending on the rate of twist and the length of the
barrel, that is certainly possible.
Q. Right. And you could not think of a pistol in which the
bullet would have made more than one full revolution before
leaving the barrel, could you?
A. Doesn't immediately come to mind, no, sir.
Q. And in connection with this operation Drill Fire or this
study, someone looked at the possibility of getting Microsoft
Mathematica; correct?
A. I think so.
Q. And someone also looked at the possibility of making some
kind of standard statistical analysis; correct, sir?
A. It's my understanding that there was -- we were looking at
what might occur as far as a statistical study.
Q. Right. Because in order to know whether or not something
is truly unique, or a little bit unique, or could have happened
a number of times, we can apply to the insights of statistics
in order to evaluate that; right?
MR. ORENSTEIN: Objection. Scope and relevance.
THE COURT: Overruled.
James Cadigan - Recross
THE WITNESS: I don't think that the statistical study
would prove it. Certainly the -- utilizing the computer would
aid in establishing the criteria for such an identification,
but it doesn't -- you cannot make an identification based on
statistics.
BY MR. TIGAR:
Q. To take an example from another field, there's no known
instance of two people having the same fingerprints; right?
A. That is correct.
Q. And millions and millions and millions of fingerprints have
been studied; correct?
A. That is correct.
Q. So now you're confident in knowing because the science has
been done that a fingerprint is unique; correct?
A. Yes, sir.
Q. Right. You were going to do a study to see if you could
analyze statistically drill bits; right?
A. We were going to look at drill bits.
Q. Right. And in that connection, someone was going to do a
Poisson distribution; right?
A. I don't know that they were going to do that as part of the
study. It was just one of the things that the person that was
making those notes was thinking about.
Q. All right. And what is a Poisson distribution?
A. I have no idea.
James Cadigan - Recross
Q. All right. Do you know that a Poisson distribution is
something named after a scientist who made a mathematical way
to look at evidence as how often things happen and whether
they're random or not?
MR. ORENSTEIN: Objection.
THE COURT: Sustained.
BY MR. TIGAR:
Q. You don't know what it's about, okay.
Was this study ever completed?
A. No, sir.
Q. Was -- are there work papers from this study?
A. Well, there are -- there's still work to be done in it.
The drill-bit impressions need to be examined by me, and
paperwork needs to be -- final paper needs to be written, but,
no, it's not done yet.
Q. Not done, all right. Now, you told us that when a drill
bit is manufactured, there is a phenomenon by which the
grinding wheel is offset; correct?
A. Offset?
Q. Is changed each time so that the same portion of the
grinding wheel surface isn't presented to each drill bit;
right?
A. The grinding wheel is not offset; the drill bit itself is
indexed or moved.
Q. Is indexed. And how many index positions are there in the
James Cadigan - Recross
typical drill-bit manufacturing process?
A. I'm not sure. The one that we were looking at, I think,
had four.
Q. Four, okay. So Drill Bit 1 hits this part of the wheel and
then goes off, and then Drill Bit 2 hits the next part, 3, 4,
and then goes back to 1; is that the way it works?
A. Well, the way it works is the first part of the Drill Bit 1
hits the grinding wheel at Portion A, comes out, and the second
part of the drill bit hits Part B of the grinding wheel and so
on.
Q. And so on. And did you do a study to determine how often
the same impression of grinder positions occurs during the
course of an average manufacturing day?
A. No, sir.
Q. So you just have no idea about that; right?
A. No, sir.
Q. All right. But you do know that thousands of drill bits
are manufactured each day by a given factory; correct?
A. At least, yes.
Q. Now, the drill bit about which you've been testifying, do
you know where it was manufactured?
A. No, sir.
Q. Do you know what manufacturing process was used there?
A. Well, I know that it was ground, yes, sir.
Q. You know it was ground. But you don't know what factory it
James Cadigan - Recross
was produced in?
A. No, I don't.
Q. You don't know where it was made?
A. No, sir.
Q. Now, on cross-examination, you were shown again what's been
received in evidence as Government's Exhibit 1843. And if that
can be shown. I didn't understand. You notice that when you
were talking about these jagged edges -- correct -- if you made
another drill bit impression with the same drill press and the
same drill bit with which you made this, would you expect these
jagged lines to be different?
A. Different?
Q. Yes, sir. Would you expect to get different jagged lines
from two successive impressions of the same drill bit?
A. I don't know.
Q. We did see, looking again at 155, that the jaggedness is
much greater than the cutting edges of the drill; correct?
A. Yes, sir.
Q. Does that suggest to you that the jagged lines on 1843 are
a random event?
A. They could be. I don't know.
Q. All right. Well, do you know how long it was -- you
examined this drill bit that's in 155 in 1955 (sic); correct?
A. 1955?
Q. Excuse me, 1995.
James Cadigan - Recross
A. I think it was 1995.
Q. And all the pictures that you have here were taken in 1995;
correct, sir?
A. Most of them, yes, sir.
Q. And is it your experience that as you use a drill bit, over
time, it starts to wear out?
A. It can change.
Q. If you use a drill bit to cut things that are hard, like
metal, it can change; right?
A. Depending on the metal.
Q. Depending, yes, exactly.
A. Uh-huh.
Q. And again, do you know what use, if any, this drill bit
that's in 155 had between the fall of 1994 and the time in 1995
when you looked at it?
A. No, sir.
MR. TIGAR: No further questions, your Honor.
MR. ORENSTEIN: Nothing further.
THE COURT: All right. This witness then excused?
MR. ORENSTEIN: Yes, sir.
THE COURT: That agreed. Mr. Tigar?
MR. TIGAR: Yes. I am sorry, your Honor.
THE COURT: Is it agreed --
MR. TIGAR: Yes, it's agreed.
THE COURT: You may step down.
THE WITNESS: Thank you, your Honor.
THE COURT: Next witness, please.
MR. MACKEY: Your Honor, the United States will call
George Krivosta. Ms. Wilkinson will examine.
THE COURT: Krivosta.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(George Krivosta affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: George Krivosta, K-R-I-V-O-S-T-A.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Miss Wilkinson.
MS. WILKINSON: Thank you, your Honor.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good morning, Mr. Krivosta.
A. Good morning.
Q. I'm sure it will become clear to the jury as they listen to
you, but can tell them where you're from.
A. I'm from Suffolk County, New York.
Q. Where were you born?
A. I was born in Brooklyn, New York.
Q. Can you tell us where Suffolk County is.
George Krivosta - Direct
A. Suffolk County is a county on the eastern end of Long
Island, that has a population of approximately 1.4 million
people.
Q. Tell the jury where you work, Mr. Krivosta.
A. I'm employed by the Suffolk County Crime Laboratory, which
is part of the medical examiner's office in Suffolk County,
which is under the jurisdiction of the Health Department.
Q. So you have no affiliation with the police department there
in Suffolk County?
A. That is correct.
Q. And what do you do at the crime -- Suffolk County Crime
Laboratory?
A. I'm the supervising forensic scientist in charge of the
Firearms Unit at the crime laboratory.
Q. And what type of examinations do you do in the Firearms
Unit?
A. Firearms and tool mark examinations.
Q. Now, do you have any connection with the FBI Laboratory?
A. I do not.
Q. Do you also do independent examinations?
A. Yes, I do.
Q. Does that mean when you do an independent examination that
you're not doing it for the Suffolk County Crime Lab?
A. That is correct.
Q. And were you asked by the Government in this case to
George Krivosta - Direct
conduct just such an examination?
A. Yes, I was.
Q. And have you worked in the past for both prosecution and
defense?
A. Yes, I have.
Q. And does it affect you in any way who it is that hires you?
A. It does not.
Q. Tell us how long you've been employed as a firearms and
tool marks examiner.
A. I started with the Suffolk County Crime Laboratory in 1974.
I was moved into the firearms section in 1979.
Q. Now, you told us that your unit is called the Firearms
Unit; correct?
A. That is correct.
Q. You also do tool marks?
A. In the Suffolk County Crime Laboratory, both firearms
examinations and tool mark examinations are done in the same
section of the laboratory. Tool mark examinations is just
considered to be -- in actually, I should say firearms
examination is just considered to be a specialized form of tool
marks examinations.
Q. Explain that for the jury, could you.
A. When a tool is manufactured or in the case a gun is
manufactured, various tools are used in its manufacturing
process and various types of markings can be placed. Some are
George Krivosta - Direct
deliberate, which we call class characteristics; some are
accidental. They're often referred to as striations.
When a cartridge or a bullet is fired from the gun,
these markings are now transferred from the weapon onto it so
in actuality, the individuality has to take place in the weapon
first, not on the expendents.
Q. So is there any difference in doing that firearms
examination as when you do a tool marks examination?
A. There is not.
Q. Now, did you conduct a tool mark comparison in this action?
A. I did.
Q. Did it involve comparing a padlock with a test impression
that was made from Mr. Nichols' drill bit?
A. Yes.
Q. Now, before we get into the details of that comparison, can
you tell us just a little bit about your educational
background. When did you receive your bachelor of science
degree?
A. I received my bachelor's of science degree from John Jay
College of Criminal Justice, which is part of the city
university system.
Q. Did you say when you completed that? I'm sorry.
A. 1974.
Q. What did you do after you graduated from college?
A. I began my work at the Suffolk County Crime Laboratory.
George Krivosta - Direct
Q. Now, over the years, how many tool marks and firearms --
should I just say tool marks examination for purpose of these?
A. Yes.
Q. How many tool marks examinations have you done over your
career?
A. Hundreds of thousands.
Q. Since you have become a tool marks examiner, have you done
any teaching or lecturing in this field?
A. Yes, I have.
Q. What have you done?
A. In the spring of '96, I believe it was, I was given the
appointment as an adjunct lecturer at John Jay College of
Criminal Justice, where I taught a graduate course in firearms
and tool mark examination. In addition to that, I've also
lectured before the Suffolk County police departments, advanced
investigators' courses, and the Suffolk County district
attorney's office on the state of the art of firearms and tool
marks examinations.
Q. Let's turn, if we could, to actual drill-bit comparisons.
Have you done any proficiency tests, either internal or
external, as they relate to a spinning drill bit?
A. I believe it was in 1993, Collaborative Testing Services
issued an external proficiency test on drill bits, and I did
that examination.
Q. Okay. Let's talk about the organization you mentioned.
George Krivosta - Direct
What was the name of it?
A. Collaborative Testing Services.
Q. What is that?
A. They are a independent vendor who supplies various
proficiency tests to laboratories that wish to take them, and
it's part of the ASCLAD accreditation program. Our laboratory
participates in these proficiency tests.
Q. So was it your laboratory as well as others that are part
of this accreditation process that engaged in this external
proficiency test?
MR. TIGAR: Object to leading, your Honor.
THE COURT: Overruled. It's preliminary.
THE WITNESS: That is correct.
BY MS. WILKINSON:
Q. And did you do -- what type of work did you do as part of
this external proficiency test on a spinning drill bit?
A. It was to perform a -- they had submitted a drill bit.
They had submitted questioned drill impressions of essentially
blind holes, holes where the drill bit hadn't fully penetrated
the stock, and you were asked to determine if the markings
could be associated and if any of the other markings could be
associated with each other.
Q. Let's turn to the actual examination of a spinning drill
bit and start with the identification of tool marks that you
might compare. Can you tell us what type of tool marks you
George Krivosta - Direct
look for in a spinning drill bit.
A. There are essentially two types of tool marks. We have
what are referred to as impressed tool marks. They describe
where the -- there is force between the tool, which is the
harder of the two substances, and what's going to pick up the
markings. And from pressure between at least two, a -- a
mirror image or a negative of what's on the tool will be
impressed.
Another type of tool mark is what's referred to as a
striated tool mark. That's when the tool, again, the harder
substance, comes across the softer of the two substances and
leaves a series of parallel scratch marks that are often
referred to as either striate or striations.
Q. Okay. Let's compare that to a firearms identification.
What type of tool marks are you looking at when you're doing a
firearms identification?
A. Again, you're looking at both types. If we were talking
about a firing-pin impression or if we were talking a brief
face marking, we would be talking about compressed tool marks.
If we're talking about the bullet traveling down the barrel, if
we're talking about the extractor rubbing across the edge of
rim or during the extraction process in the casing coming out
from the chamber, in those cases, we would be talking about
striated tool marks.
Q. Does it make any difference -- let's use your example of
George Krivosta - Direct
the bullet coming down the barrel. Does it make any difference
how many times the bullet spins or revolves before it goes out
the barrel whether you find those striations or tool marks?
A. It does not.
Q. Why is that?
A. The rifling keeps the bullet from slipping during its
travel down the barrel. So it's going to pick up -- it's
following the same type of path as it travels down. It would
have to take a deviated path, which at times does happen. And
that's what's referred to as slippage. When the bullet first
starts its travel, it can slide a little bit before it engages
the rifling. So you might have some areas that would appear
different from other areas on the surfaces that you're
examining, but that's due to slippage.
Q. And slippage is something that you see in certain cases; is
that right?
A. Yes, you do.
Q. Does that preclude you from making any identification of
the firearm?
A. It sometimes makes it more difficult to find continuous
strings where we have areas. We might have to go to several
areas finding small areas of reproducible striate that are in
congruence.
Q. So could you have like a blotch and some kind of mark and
some other striations and would that suggest the slippage that
George Krivosta - Direct
you're talking about?
A. That is correct. In other words, you could have an area of
striations where they're reproducing, and you can have a break
for a short period of time, and then you can have a combination
of these striates in another area that are reproducible.
Q. Let's go back, then, to a drill bit. If you -- I'm going
to show you Government's Exhibit 151. You recognize this as a
battery-operated drill?
A. I do.
MS. WILKINSON: Your Honor, may I give it to the
witness?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Take a look at this, Mr. Krivosta.
Now, if you were going to use that drill to drill a
padlock and you were holding it underneath the padlock, would
you -- could you have the same phenomenon you just talked
about, some kind of slippage or some kind of lateral movement?
A. Most definitely. A drill -- one of the things you have to
be aware of when dealing with a drill and doing drill-mark
comparisons is you have two cutting surfaces. Now, those two
cutting surfaces are going to be taking off metal at the same
time. The angle of those cutting surfaces can change slightly.
Also the pressure on one end or the other end can change. And
if the tip of the drill bit is not supported by the sides of
George Krivosta - Direct
the hole -- as an example, when we get deeper down into a hole,
that drill bit is going to be supported and is not going to be
allowed to move as much. But when we're first starting, we can
actually have a cutting edge coming like this, shifting a
little bit, changing the angle that it's at, coming across,
maybe making another little bend. At the same time, it's
leaving markings. You can find areas of patterned
reproducibility, but then you can find areas that are breaks.
In the type of situation where you're drilling and trying to
hold something, will just increase the possibility of that
happening.
Q. But you would still be able to find those patterns, I think
you called them, of reproducibility; those are just striation
patterns; is that what you're talking about?
A. Yes, there might be some that would still exist.
Q. And I think you said as you're drilling into this padlock,
you'd expect for there to be more movement as you just start to
enter the padlock -- is that right -- and you'd have a better
pattern in the deeper end of the lock; is that what you said?
A. That's correct.
Q. And that's because of what?
A. The ability of -- you have the ability to have movement.
But anyone who's tried to drill a hole for the first time in
metal, one of the things sometimes you have to do is you have
to make a little tick there to get the drill started, otherwise
George Krivosta - Direct
what will happen is the drill will run, it won't even start
penetrating the metal. It's the same sort of thing happening.
You can have this sort of movement in there; and then after you
get in a certain amount of depth, the sides of the drill are
supported, and it will drill much more uniformly.
Q. So the sides of the hole will support the drill bit; is
that what you're saying?
MR. TIGAR: Leading.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. What would be supporting the drill bit?
A. In a case like this, the padlock is holding the drill,
you're holding the drill and the operator who is doing this is
trying to keep them as stable as possible.
Q. Now, is there anything particularly difficult or different
in examining the marks left by a spinning drill bit?
A. As long as one keeps in mind that there are two cutting
surfaces and that the -- you know, you may have -- you see some
discrepancy on one, you might have to look at the other cutting
surface. 'Cause either one of these can leave the markings,
and they also don't necessarily have to be all the way across
from one another.
If this one is cutting, this one is cutting and this
one suddenly breaks free, this one is going to continue for a
little bit. Now, we wouldn't realize that unless we stopped
George Krivosta - Direct
cutting at that exact moment. When we stop cutting, what
happens is now the drill moves away from the surface and
there's no more material being removed. So what we will see is
what was -- so what I'm trying to say is if this made like 270
degrees' worth of cut and this was missing for about a quarter
of that turn, we might only have a quarter of this as coming
from this one and 270 coming from this one.
If we drilled another hole, we could have the reverse
situation or we could have the two of them being exactly equal;
and that's the only concern you have to be aware of when you're
doing this sort of examination.
Q. Is there anything about examining the tool marks from a
spinning drill bit that makes the examination easier?
A. The surface of the tool is a ground surface.
Q. Meaning -- which surface is the ground surface?
A. The cutting edge of the drill is ground. And ground --
grinding is a type of machining procedure that leaves very --
what we refer to as accidental marks, the possibility of
carryover. "Carryover" means that something can be
manufactured and something else manufactured immediately
thereafter could have the same type of markings on it.
Drilling -- or I should say grinding is a type of
machining process where that cannot take place. The cutting
away of the metal is done by the very little abrasive bits of
material on the -- on the wheel. They're harder than the tool
George Krivosta - Direct
steel. They tend to make small scratches, but they're turning.
They immediately -- they take a little metal off and they come
away, and something -- a different one in a different place
comes along. The possibility of getting the exact same
structure becomes rather infinitesimal. So when we talk about
looking at the striations in a reproducible pattern, they would
have to be there either -- the only way they could be there
other than from having the same tool would be by pure chance.
Q. Now, what about when you do a firearms examination? Do you
have some of those same phenomena going on?
A. When you do firearms examinations, you have to be very
cautious of where you're looking and what you're looking at.
As an example, if we were to look at the inside of a barrel
where the grooves or the shower spots are, there are some
machining operations where you can get carryover, where the
cutting tool that cuts that groove makes a passage, takes metal
away. Then when it manufactures the next barrel, the exact
same situation can happen, and there can be a certain amount of
similarity between those two markings.
There are other parts, what we refer to as the land
impressions when the barrel is formed. The inside of that is
drilled, it's reamed. The tool marks that are left inside that
barrel are particular to the direction of the bullet is going
to travel. So the markings that are going to be placed on
there are totally random. The possibility of them reproducing
George Krivosta - Direct
is exceptionally remote.
Q. And is that possibility of the randomness or the chance
repeat of the bullet coming out of the barrel similar to the
phenomenon you've described about the chance of reproducibility
of the drill bit spinning into a lock or some other metal
surface?
A. That is correct.
MS. WILKINSON: Your Honor, may I approach and give
the witness Government's Exhibit 126?
THE COURT: Yes.
BY MS. WILKINSON:
Q. I've taken it out for you, Mr. Krivosta, and I'm showing
you Government's Exhibit 126.
Did you examine that padlock in connection with this
case?
A. I did.
Q. And did you examine it in the condition that it's in right
now?
A. When I received the padlock, it was wrapped up in tape in a
similar-type fashion, and I began my examination by documenting
the condition I received it. Then what I did -- I had noticed
that the lock had been partially disassembled, so I removed
these plates in order to remove this brass part that's referred
to as the cylinder bolt from the lock so that I could more
easily examine that.
George Krivosta - Direct
Q. Why did you want to get to the cylinder?
A. My examination revealed that there had been attempt to
drilling and a drilling -- through the pin area of the lock.
Q. Did you see that through a visual inspection?
A. Yes, I could.
Q. And could you describe for the jury what you look at on
that padlock that tells you or shows you that there was an
attempt to drill with a drill?
A. This bright, shiny circular area; and right above it, in
the keyway, where the pins normally would have been, there's a
round hole that penetrates into the lock.
Q. Let me show you Government's Exhibit 1841.
Does that photo indicate what you're describing?
A. Yes, it does.
Q. Could you use that black pen there and take it -- you see
that up on top of there, and take it down and write underneath
on the screen itself and show the jury what you're describing
on Government's Exhibit 1841.
A. This first area demonstrates the attempt to drill in the
center of the keyway. Off to the side was the second area that
was the actual drilling through the pin area on the lock. When
I examined these and in my notes, I referred to various areas,
this being Area A and this being Area B.
Q. Can we stop right there, Mr. Krivosta, for a moment. Now,
you've shown us two impressions, and now you're breaking one
George Krivosta - Direct
down into A and B; is that right?
A. That's right.
Q. Is that the shallow impression or the deep impression?
A. A and B compose both the shallow and deep impression.
They're just two different surface areas that I worked on in
the shallow and deep impression.
Q. Now, go ahead and tell us about the other impression.
A. The other impression: This photo was focused for the top
area; but down at the bottom of this hole, right down in this
approximate area, was where -- I'm sorry. I keep on hitting
that little side button there and wiping things out here.
Right down in there -- that was at the bottom of the
hole where what had happened was the drill had almost punched
all the way through and started separating out the metal. But
there was also areas of striations that were consistent with
being the bottom of the hole and would have been -- and were
suitable for comparative analysis.
Q. Now, you started by visually examining this lock; is that
right?
A. I examined it visually. Then I took this part and went to
an instrument that was referred to as a stereomicroscope.
Q. What did you do with the lock and the microscope?
A. Once I had taken the lock and disassembled it, I then took
the cylinder bolt, took it under the stereomicroscope; and
that's where I performed my detailed examinations, attempting
George Krivosta - Direct
to find the areas that I felt would be suitable for comparative
analysis.
Q. Before we describe that, were you also provided with
Government's Exhibit 244, a test impression?
A. Yes, I was.
MS. WILKINSON: Your Honor, may I give this to the
witness?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Mr. Krivosta, did you examine Government's Exhibit 244
before you conducted your analysis?
A. Yes, I did.
MS. WILKINSON: Excuse me, your Honor.
BY MS. WILKINSON:
Q. Now, are you familiar with what type of metals that the
test impression was done on?
A. Yes, I am.
Q. What is it?
A. It's lead.
Q. Why would someone do a test impression in lead for purposes
of comparing tool marks?
A. When one starts performing tool mark comparisons, one would
want to use the softest metal available first. What you do not
want to do is change the tool in any form until you've got a
set of markings off it. If necessary, one can always go to
George Krivosta - Direct
harder metals later on; but if one were to start with a very
hard metal and change the tool, the ability to make a
comparison might be lost forever.
Q. So let's say someone wanted to review the work that had
been done. Is it better to make the drill bit impression into
this soft metal so someone could examine the drill bit later
and make yet another impression, if they found it necessary?
A. By starting with the lead material, one could start
performing examination. If that lead provided you with enough
information, there might not be a need to even go any further.
Q. But if someone else wanted to come in and review the work,
could you have protected the drill bit as much as you could by
using lead rather than some harder metal?
A. Yes, I would.
Q. And if the impression had been done in a harder metal, say
a metal similar to the padlock, is there a chance the
comparison would have been harder to make, instead of easier to
make?
A. If you started with the harder metal first, you might not
have captured the markings that were on there; and if you
altered the drill, you can't go back. Once the drill is
changed, there's no way you can go backwards. There's no time
machine that allows you to go backwards.
Q. So if someone wanted to make a comparison, they couldn't
alter the drill bit to make it match something; is that right?
George Krivosta - Direct
You could just lose the comparison; is that what you're saying?
A. That is correct.
Q. And what about the padlock itself? If it had been found
somewhere and then altered in any way, would it inhibit the
comparison, or assist you in the comparison?
A. It would inhibit the comparison.
Q. Why is that?
A. Because if the markings on the padlock were destroyed in
some manner, again, you can't go back. The possibility of
changing it, you know, by abusing it or something else, into
it, is so infinitesimal, you know, it wouldn't be talked about.
But, you know, to take it and obliterate the markings
so that they couldn't be seen: That's always a distinct
possibility.
Q. So if someone had seized this padlock and then dropped it,
if it altered it, would that inhibit your identification, or
assist it?
A. It would inhibit.
Q. So can you -- all right. Let's turn to your actual
examination, if we could. You said you looked at this
visually. And can I show you a copy of the test impression,
Government's 1843.
Did you view the test impression, Government's 244,
under the microscope?
A. Yes, I did.
George Krivosta - Direct
Q. And does Government's 1843, the photo of that test
impression, fairly and accurately represent what you saw under
the microscope?
A. Yes.
Q. Now, when you look under this -- what do you call it; a
stereoscopic microscope?
A. Stereomicroscope.
Q. Do you see two-dimensional, or three-dimensional?
A. The image would probably be considered two-dimensional; but
you do have a certain amount of three-dimensional flavor,
because what you can do is you can reflect the light and by
manipulating and moving it around, you can actually see depth
to it.
Q. Could you do that when you looked at the padlock under the
microscope? Could you see depth?
A. In the same fashion: By using that instrument, it allows
me that same kind of manipulation.
Q. So if I showed you these photos, while they reflect the
two-dimensional view of what you saw, do they show the jury
exactly what you saw under the microscope?
A. They do not.
Q. Now, is there a reason why you don't normally take
photographs when you do tool mark comparison?
A. I feel that an examiner going to the microscope is the best
way to view it. Although I have reviewed photos, I would
George Krivosta - Direct
always be more comfortable in reviewing the evidence.
Q. And do you make your comparison based on what you see
through the microscope?
A. That is correct.
Q. And do you make that comparison based on your training and
your expertise?
A. Yes, I do.
Q. Now let's talk about what you did. I want to start by
showing you Government's Exhibit 157, which I believe you've
seen before.
Do you recognize this?
A. Yes, I do.
Q. Okay. Let's start on the left side there. What is this a
photograph of?
A. This is a -- the questioned tool marking from the lock that
was at the bottom of the deeper hole. This particular -- right
along the edge of the marking of this piece of metal, there was
a small red-ink mark that had been placed there by someone
preceding me.
Q. So if we want to go back to the visual examination you did
of the lock, this is of the deep impression, not of the shallow
impression; is that right?
A. That is correct.
Q. Okay, and on the other side, what is that?
A. This is the -- one of the two test impressions that were on
George Krivosta - Direct
the piece of lead. One of the impressions that was more
towards the right and rusted bit had a small red mark on it,
also, that would have been up in this 12:00 position.
Q. Now, when you examined the deep impression, did you find
tool marks suitable for comparison?
A. Yes, I did.
MR. TIGAR: At some point, I'd like to voir dire.
THE COURT: All right. Now would be appropriate.
MS. WILKINSON: This would probably be the best time.
THE COURT: All right.
MS. WILKINSON: Your Honor, may I just have a
clarification on exactly what issue Mr. Tigar is voir diring
on?
THE COURT: I assume it is with respect to expertise.
MR. TIGAR: Yes, your Honor.
MS. WILKINSON: Okay.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. You've been -- good morning, sir. My name is Michael
Tigar. I'm one of the lawyers appointed to help Terry Nichols.
You began in the tool marks section in 1979; is that
right?
A. That is correct.
Q. How long does it take you to do a -- Do you have an average
amount of time it takes you to do a typical tool mark
George Krivosta - Voir Dire
examination?
A. The question is what becomes a typical examination. I've
worked performing comparisons anywhere from a matter of minutes
to four to seven days before we were done with identifying one
mark.
Q. Yes. You said that you had done hundreds of thousands of
tool mark examinations in a period of 20 years. That would
work out to how many a year?
A. A hundred thousand would be approximately 5,000 a year.
Q. And you said hundreds of thousands, so how many hundreds of
thousands do we have here?
A. The -- several. I'm certain of that.
Q. All right. So you would say that you did, what, 10,000
tool mark identifications a year?
A. I -- that wouldn't be unreasonable.
Q. All right. And you work 300 days a year, sir?
A. Approximately.
Q. And so how many does that work out a day of tool mark
identification, if you're doing 10,000 a year?
A. Quite a number. The question is is how do you value a tool
mark examination and what do you call it. I refer to a tool
mark examination as every time I take one surface, put it
against another surface. That's a tool mark examination. So
therefore, as an example, if I'm examining two test bullets --
all right -- and I look at four tests, now, have I done one
George Krivosta - Voir Dire
tool mark examination, or have I done four tool mark
examinations?
Q. That was my question --
A. At the same time -- sir, please.
Q. Yes, go ahead.
A. At the same time, if I have six surfaces or 12 surfaces on
that bullet and I bring two of these surfaces up against one
another and I now look at them, and now I rotate away from
that, and I look at another surface and I rotate and I look at
another surface and then three-quarters of the way through I
finally put two surfaces together, now have I done one
examination, or have I done one examination where I matched two
surfaces together and at the same time did, say, 10 or 11 that
were not matched to one another, or what we refer to as
nonmatches? In actuality, I consider every time I bring two
surfaces together and I sit there and look at them a
comparison.
Q. So that in examining a single bullet, you might do 11
comparisons; is that right?
A. That is correct.
Q. So when you say you've done many hundreds of thousands,
you're using that sort of arithmetic; is that right, sir?
A. When they punched in data that was stored at the laboratory
where all we did was kept track of the number of casings and/or
bullets that were compared vs. test specimens; so in other
George Krivosta - Voir Dire
words, if I fired four test bullets, that would be considered
four tests. They documented that I did 5,000 examinations in a
year in that manner. So if we were to count every land, now
obviously that would be much higher.
Q. All right.
A. So by the standards we kept in the laboratory, there's
documentation of me doing at least 5,000 in one particular year
where we kept track.
Q. All right. Now, sir, you have written how many articles?
A. I have one article published in the Association of Firearms
and Tool Mark Examiners' Journal.
Q. And that is a two-and-a-half-page article that describes a
firearms accident and recommends procedures not to have those
kinds of accidents anymore; isn't that fair?
A. It also describe a rather unusual comparison where the
cartridge had been detonated by a non-typical part of the
firearm striking the primer, instead of the primer doing the
initiation of the cartridge. What had happened was the bottom
of the slide had struck the firing pin and caused that
cartridge to detonate.
For me to do the comparison in that case, there was
no --
Q. Sir --
A. Sir, please, can I finish?
There was no way for me to reproduce that type of
George Krivosta - Voir Dire
test-firing of a cartridge; so what I had to do was make the
cast of the bottom of that part and actually do a tool --
different type of tool mark comparison. So the other part of
the article was the method in which I performed the comparison.
Q. Did that article have anything to do with spinning drill
bits?
A. It does not.
Q. Now, in your resume, sir, you note that -- put in a number
of continuing education and seminars; do you remember that?
A. Yes, I did.
Q. Now, you didn't -- did you see fit to put on there this
certification examination that you went through, on your
resume?
A. The --
Q. Yes or no, sir: Did you put it on there?
A. Which certification examination?
Q. On examination by Government Counsel, you said you'd done
something with somebody called Collaboration Testing. Do you
remember that?
A. Yes, I do.
Q. Did you put that on your resume?
A. We take --
Q. Did you put that on your resume, sir? Would you just
answer my question.
A. I did not.
George Krivosta - Voir Dire
Q. Now, how many times have you testified in court as an
expert witness comparing spinning drill bits?
A. Testifying in court, not once.
Q. All right. Is this your first time out?
A. That is correct.
Q. Okay. Now, are you aware of any studies showing the
statistical probability that two impressions made by two
different drill bits will in fact be different?
A. There was a paper published by Joe Reitz of the Baltimore
Police Department in 1975 involving a homicide case. He also
took the work of -- I believe it was Art Parthalow, or
something like that, from Chicago, and used his assistance in
the publication of that paper in the December --
Q. That paper --
A. -- in December of 1975 in the Association of Firearm and
Tool Mark Examiners' Journal.
Q. Did that paper written some 22 years ago contain a
statistical analysis of the probabilities involved in comparing
different tool marks?
A. It did not.
Q. So the answer to the question whether there exists any
literature that would tell us the statistical probability of
two different marks made by two different drills being either
the same or different is that there is no such study that has
been done; is that correct?
George Krivosta - Voir Dire
A. There are several publications of statistical study
discussing ground surfaces, and --
Q. Excuse me, sir. I'm talking about spinning drill bits. Is
the answer to my question that no such study exists?
A. Specifically to this singular tool, no.
Q. All right. Now, let's look at the way in which you
conducted your test.
MS. WILKINSON: Objection, your Honor. This is beyond
his expertise.
THE COURT: Sustained.
MR. TIGAR: I'm sorry, your Honor. I thought that was
a preliminary matter. Well, then, may I approach, your Honor?
THE COURT: Yes you may.
If you want to stand and stretch, members of the jury,
you may did so; but don't talk.
(At the bench:)
(Bench Conference 69B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: You may proceed, Miss Wilkinson.
MS. WILKINSON: Thank you, your Honor.
MR. TIGAR: Excuse me, your Honor. I left all my
secret notes.
MS. WILKINSON: Won't want to look at those.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Okay. Mr. Krivosta, let's get back to what you did in this
case. All right?
A. Yes.
Q. You were looking at Government's Exhibit 157, and you were
going to tell us about -- and let's start at first with tool
marks that you saw that were sufficient for comparison. Did
you see any on the left side here from the padlock from the
deep impression that you thought you could compare to the test
impression?
MR. TIGAR: Excuse me, your Honor. Object to the form
of the question.
THE COURT: Overruled.
BY MS. WILKINSON:
Q. Show us the tool marks, if you had found any, Mr. Krivosta,
that you could compare.
MS. WILKINSON: Could you hold on one second.
Your Honor, could I ask that the pen be a different
George Krivosta - Direct
color? It's very hard to see on this photograph. Sorry.
BY MS. WILKINSON:
Q. Why don't you erase your marks, Mr. Krivosta -- there you
go -- and start again, please.
A. The area that was examined in relative to this one
particular photo, I had this photo with me when I performed my
examinations. Set into that approximate area.
Q. Now, you said you had the photograph. Were you looking
through the microscope and looking at the photograph?
A. When I performed comparative analysis -- By the way, I have
now shifted from the use of the stereomicroscope to using a
tool that's referred to as a "forensic ballistic comparison
microscope." That is a type of tool that's essentially two
microscopes, different optic systems, so you can vary the
magnifications that combines the image together in a bridge so
that you're viewing it in the same fashion we have in front of
us. Hairline splits to center; on one side you can place your
questioned specimen, on the opposite side you can place your
test; and you can vary the lighting and the angles and
everything else to make the markings more visible.
Q. So does this photo show some but not all of what you saw
under the microscope?
A. That is correct.
Q. Now, you've showed us the marks there on the left side.
And could you start down here at the bottom and tell us what
George Krivosta - Direct
we're seeing, just starting on the left side and going up.
A. These are all different striations that are left. There
are some -- the -- when you take a photo, you have some areas
that will be in very sharp focus. You have others that you may
have a little softer focus.
At the same time, you will have areas that are
probably illuminated and then you have others that are not. As
an example; right down here, there's one striation that
corresponds to one on the other side.
As we continue up, we have areas of high points,
troughs, high points, troughs, other troughs, ridges. All
these are what we refer to as "consecutive patterns." You can
have peaks, you can have ridges, you can have valleys. Any one
of these peaks can be rounded. They have a three-dimensional
nature. For something to be in congruence, this has to all
agree. As we go and we string more and more of these together,
what we refer to as consecutive matching pairs, it becomes more
significant.
MR. TIGAR: Objection to significance, your Honor.
THE COURT: Well, significant to the comparison?
THE WITNESS: Yes.
THE COURT: All right. Overruled.
BY MS. WILKINSON:
Q. Let's stick with the comparison, Mr. Krivosta.
But go up here to the left. You're telling us that
George Krivosta - Direct
you're seeing some of these striations where my pen is going;
is that correct?
A. That's correct.
Q. Now, up here, this big mark: That's not a striation, was
it?
A. No, no. That's -- if I recall, there was a chip or
something that was left adhering on its place.
Q. So what causes something like that to occur in the padlock?
A. That was just a small piece of metal that was -- that was
still left in there and was something else that was kind of
like attached in the view of the field.
Q. Now, let's go over to the right side, to the test
impressions. Can you compare some of the test impressions on
the right with the tool mark impressions on the left?
A. All these markings -- I hit that again -- just as they come
in to this hairline, the troughs, the high spots, this is what
we're looking to find on the other side. And again, what we're
looking to see is a congruence of these -- when I say
"congruence," I mean looking here and finding it on the other
side, looking here and finding it on the other side.
Q. Do you see those similarities on the other side?
A. Yes, I do.
Q. Now, go up a little bit further here. You see some more
striations up here on the right; correct?
A. That is correct.
George Krivosta - Direct
Q. You didn't see these similar markings on the left; is that
right?
A. That is correct.
Q. Does that change the significance of the similarities that
you've identified below?
A. What we have here is we have an area that reproduced. We
can give it some weight. Now we have an area here where the
photo doesn't display it and it was there, or maybe it wasn't
there at all. You know, that's weighed, that's considered; but
it has to be judged against what we've seen previously.
Q. Now, did you look under the microscope and look around not
just at what we see in this photo but at other similarities in
the deep impression?
A. Yes. There were other areas down in there that had typical
areas like this. This was an area. You can't see it, but this
was actually like down in here. This was one of those areas
where it almost punched through and split. So when we see a
dark area in here -- and there are some other dark areas --
what we're talking about is either voids or areas we're not
seeing in the photo because we have a light problem.
Q. Now, keeping that --
A. But there are other areas similar to this and the other
areas around that hole.
Q. Mr. Krivosta, keeping that in mind, does that change what
you believe are the similarities that you see here that you've
George Krivosta - Direct
identified for the jury?
A. I looked at the areas, and I weighed them in addition. But
this was part of what I considered, was what I saw right here.
Q. And do you still believe that these are similar?
A. Yes.
Q. And that you've seen these patterns of reproducibility?
A. Yes.
Q. Did you see other patterns of reproducibility in the deep
impression of the lock?
A. Yes, I did.
Q. If you could clear your screen, please.
Did you also look at the shallow impression to see if
you saw any striations for comparison?
A. Yes, I did.
Q. All right. Let me show you Government's Exhibit 1841
again. Take the jury to the shallow impression and tell them
what you saw.
A. I had reflected in my notes, as I had previously marked on
this, there were two areas I had looked at --
Q. Can I zoom that in for you a little bit, so that it's
easier to see? Does that help?
A. Okay. Yes.
Q. Go ahead.
A. This area -- meaning this whole area -- I referred to in my
notes that I kept on this comparison as Area A. This area was
George Krivosta - Direct
Area B. When I did my comparisons against a test surface, I
indicated to you that -- and what we discussed is that there
were two cutting surfaces on that. The one that I indicated
had the red mark on the test, that I had also marked in my
notes as Area A, that I performed comparisons between this and
searching for areas of similarity.
Q. Did you find them?
A. Yes, I did.
Q. And did you find them in Section B that you've identified
on this photograph?
A. Then what I had to do was shift to the other part of the
cutting of that test impression, that was the result of the
other cutting edge. And those I compared against this area as
B and again found similarities.
Q. And did you -- did you have sufficient time to look at all
the striations that you could under the microscope in both the
deep and the shallow impression -- impressions?
A. I had an adequate amount of time, yes.
Q. And did you see similarities in all those sections?
A. Yes, I did.
Q. And they were all similar to the test impression that was
done, Government's Exhibit 244 that you examined?
A. There were areas that were similar. There were also what
we refer to as some incongruences.
Q. And tell us why you would see incongruences. Excuse me.
George Krivosta - Direct
A. In this particular case, what we have is because the bit
wasn't fixed -- you had areas where the pressure might have
been different from other parts. If you look at some of the
bold striate, which are the -- you're seeing that they go
almost the full length.
The finer stuff would break off, possibly recontinue,
possibly break off. So what became necessary when I performed
my comparisons in this area is I would look for a spot using
the bulk of the stuff to put myself into what's referred to as
phase. I would look for small areas of reproducibility; and
then there would be an incongruence, a dissimilarity. So what
I would now do is I can shift using other bold stuff, looking
for other areas. And I would find pattern -- areas of
striations that also were similar or in congruence.
Now, what I do is rather than be able to take, like
that one photo showed of everything in a nice line, in this
case what you have to do is you have to make a mental image.
You have to look at something that you think is not just by
random chance, because the pattern is complex enough, follow to
another area and find something else in another area and
mentally bring these things together.
Q. Because you have dissimilarities in between. Is that what
you're talking about?
A. That's correct.
Q. Now, what would cause some of these dissimilarities here,
George Krivosta - Direct
in the shallow impression?
A. The fact that the drill-end surface wasn't held perfectly
as nice as that drill-bit test impression or as well as the
deep hole where the drill was being secured by the sides of the
hole.
Q. So when you look at Government's Exhibit 1843, which -- can
you clear your pen there for a moment, please -- which is the
photo of the test impression, you see these perfect circular
patterns -- is that right -- and striations?
A. Yes.
Q. And why does that test impression photograph show those
perfectly round striations vs. Government Exhibit 1841 of the
padlock, where you don't see those perfectly round patterns of
striation?
A. In this case, when making test impressions, I didn't make
this particular one; but if I was going to make a test
impression, I would take the drill bit, place it in the drill
press, place the piece of flat stock down, and come in
perfectly at 90 degrees, not allowing the stock and the drill
bit to have any significant amount of movement. I would try to
minimize all the movement that could cause all the other
problems.
Q. So you would be using laboratory conditions to --
A. That's correct.
Q. -- cause that drill impression; is that correct?
George Krivosta - Direct
A. Yes.
Q. And from examining the padlock, can you determine whether
that was drilled under laboratory conditions?
A. It was not.
MS. WILKINSON: No further questions, your Honor.
THE COURT: We'll take the recess before the cross.
MR. TIGAR: Thank you.
THE COURT: You may step down.
Members of the jury, we'll, as usual practice, take
our 20-minute recess, during which, of course, as usual, you
are cautioned to avoid discussion of anything that you're
hearing in this case and anything about the case and avoid
anything outside of our evidence so that you can follow the
obligation of your oath and decide according to the law and the
evidence and the instructions.
You're excused now, 20 minutes.
(Jury out at 10:29 a.m.)
THE COURT: Sit down.
Recess, 20 minutes.
(Recess at 10:30 a.m.)
(Reconvened at 10:50 a.m.)
THE COURT: Be seated, please.
(Jury in at 10:50 a.m.)
THE COURT: Resume the stand, please.
Mr. Tigar, you may inquire.
George Krivosta - Cross
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Mr. Krivosta, when were you retained by the Government in
this case?
A. I believe it was approximately July 17 of this year.
Q. And did you contact the Government to say that you were
available, or did they contact you and ask you about your
availability?
A. They contacted me and asked me about my availability.
Q. Now, before testifying in this case, you had testified in a
United States District Court before; is that correct?
A. That is correct.
Q. How many times?
A. One occasion.
Q. And where was that?
A. In the Eastern District of New York.
Q. Brooklyn, or Long Island?
A. Long Island.
Q. What was the subject of that testimony?
A. It was a civil case, as I recall. It involved the death of
an individual with the Suffolk County Police Department being
involved.
Q. Now, in your work in Suffolk County, you teach people how
to respond to crime scenes, don't you?
A. That is correct.
George Krivosta - Cross
Q. And do you attend crime scenes yourself?
A. I have on occasion. Currently, I do not.
Q. Now, when retrieving physical evidence at a crime scene,
you know it is important to mark it at the time it is
retrieved; is that correct?
A. The general consensus is either to mark the evidence or to
place the evidence into a sealed container and mark the sealed
container.
Q. And between the time it is retrieved at the crime scene and
the time it is tested, it is important to keep it under
conditions that make sure it cannot be altered in some way. Is
that correct?
A. That is correct.
Q. And is it important when retrieving evidence at a crime
scene that may be suitable for taking fingerprint impressions
to make sure that the fingerprints are not disturbed?
A. That is correct.
Q. In retrieving a tool at a crime scene, is it important to
handle the tool in such a way that any foreign objects or
matter that might be on the tool is preserved?
A. That is correct.
Q. Specifically with respect to a drill -- you have the drill
in front of you, don't you, sir?
A. Yes.
Q. If someone uses a drill in a vertical position -- that is
George Krivosta - Cross
drilling upwards -- it's likely that the thing that's being
drilled, shavings or chips of it are going to trickle down onto
the drill and into the chuck. Is that right?
A. I guess that might be a possibility.
Q. And would you as a crime scene person want to make sure
that if any such evidence existed it was collected and
preserved?
A. I would make every attempt to preserve the evidence.
Q. Now, in this case, sir, do you know what happened to the
lock that you examined between the time it was recovered at a
crime scene and the time it was first examined by the FBI?
A. I do not.
Q. You did not take your own pictures of the lock, did you,
sir?
A. I did not.
Q. And with respect to the drill bit, do you know how long a
period of time elapsed between the offense that was committed
and the recovery of the drill bit?
A. I do not.
Q. You testified earlier that each time a tool is used,
such -- well, each time a drill bit is used to cut something,
there is a likelihood that the drill bit will be altered or
changed in some way; is that right?
A. Yes, it can.
Q. And is that why -- is that one reason why it is significant
George Krivosta - Cross
to know the amount of time between the offense and the time
that the drill bit is recovered and examined?
A. One would want to attempt to safeguard the tool to keep the
tool from being changed from its condition so that the
possibility of an association might be made. But, you know,
going in the other direction starts approaching the
mathematically improbable. To change it into something --
Q. Now, you say "the mathematically improbable." Are you
referring to any study of the statistical probability involved
in identifying a drill bit with a mark that the drill bit has
made?
A. There were a number of studies relative to rare chance,
which is what this would be talking about. To drill bits
specifically as I stated before, there are none.
Q. All right.
A. But this would still be just a rare chance.
Q. So we're talking chance; right?
A. Yes.
Q. We're talking coincidence; right?
A. Yes.
Q. Now, when we're talking about coincidence, are we -- would
you be concerned to know whether the lock had been dropped by
somebody before you looked at it?
A. Once again, if the lock were dropped, it could change
what's there. But to change it into something that we might
George Krivosta - Cross
find in the future and associate would have to be purely by
rare chance.
Q. But you're saying there could be some change made in it
from being dropped?
A. Yes.
Q. Do you know whether this lock was dropped between the time
you looked at -- the time it was seized at a crime scene and
the time you looked at it?
A. I do not know.
Q. Now, you spoke about the cutting edges of a drill bit. In
terms of a drill bit, what are flutes?
A. Flutes are the grooves that are cut in the drill bit in a
spiral fashion that allow the chips of metal to come out.
Q. I'm holding up something from Government's 151A. The
flutes are these things that are in a spiral form on the
drill-bit stock; is that right?
A. That's correct.
Q. Now, the edges of the flutes are sharpened, aren't they?
A. They are trued up and uniform, and they have some
sharpness, yes.
Q. So that if I'm drilling something, say a piece of metal
that is an inch or so thick, and I wiggle my drill back and
forth at high speed, the flutes will cut into the sides of the
hole I'm making; correct?
A. That is correct.
George Krivosta - Cross
Q. So that when you told us that a deep hole that is cut in
metal is more likely to hold the drill, did you take account of
the fact that someone drilling such a hole might be wiggling
the drill?
A. Absolutely. If this were the drill and we wiggled it, we
could widen up this area here.
The edge of the bit right down here is not going to
wiggle. That's still going to be supported.
Q. Showing you now, sir, what has been received as
Government's Exhibit 1842, is this a picture of a shallow hole,
or a deep hole? Do you remember?
A. This appears to be the -- the bottom, the photo -- one of
the photos from the bottom of the deep hole.
Q. All right. And would you agree with me, sir, that these
marks here, these striations are not circular; that they
deviate from being circular?
A. The -- they have that appearance of being deviated, but
that same kind of deviation could be -- or appearance of
deviation could be caused by a bending of the stock of that
metal as it was separating out. If that would now bend, it
would give the appearance of a bend. Does not necessarily mean
that that wasn't spinning in a nice, true circular pattern at
that point.
Q. Of course. That is to say, a drill always is going to spin
circular; right? That is to say, it does drill when you push
George Krivosta - Cross
the button; it makes a nice, clean circle, doesn't it?
A. It spins, yes.
Q. Right. It spins. Now, the question is what -- The marks
that are made are determined by the relationship between the
drill that's spinning and the stock that's being cut; right?
A. Can you -- one more time.
Q. Yes. The marks that are made by the drill are determined
by the relationship between the spinning drill and what's being
cut; correct?
A. The cutting edge of that drill bit is what makes the marks.
Q. That's right. And the kind of mark is determined by the
relationship.
A. That's right. I said before that if there is movement and
there is play, that can vary somewhat. At the same time, if
there is no movement, it can be much more uniform.
Q. Now, do you know the circumstances under which the lock
that was drilled was drilled?
A. No.
Q. You don't know where the lock was, whether it was hanging
underneath a metal shroud, upside down, right side up, or
sideways; right?
A. I do not.
Q. Now, you testified on direct examination that as you were
looking at this shallow hole you were thinking about phase. Is
that correct?
George Krivosta - Cross
A. Yes. I used that term "phase."
Q. The term "phase" is a term used in firearms identification,
isn't it, sir?
A. Yes.
Q. Do you know of any published study anywhere by a reputable
scientific person that uses the term "phase" in connection with
the analysis of a spinning drill bit?
A. No.
Q. Now, when you examined the drill bit or when you examined
what you testified about here today, you did that in Cheyenne,
Wyoming; is that correct?
A. That is correct.
Q. And you drove from Denver to Cheyenne with Agent Cadigan,
did you not?
A. Yes, I did.
Q. Now, in driving to Cheyenne with Agent Cadigan, did you
discuss with him what he had found when he looked at these
things?
A. No.
Q. Did Agent Cadigan accompany you to the laboratory?
A. Yes, he did.
Q. Did Agent Cadigan tell you anything that he had found when
looking at these things?
A. During the examinations, I was initially working on the
shallow end, and he was encouraging me to go to the deep part
George Krivosta - Cross
of the hole. But I wasn't satisfied that I was completed -- my
examinations at the shallow end.
Q. Did he tell you why he thought you should be working on the
deeper part of the hole instead of the shallow part?
A. He felt that the -- the markings down on the -- on the deep
part of the hole were the ones that he had associated, and he
was encouraging me to go there.
From what I was observing at the shallow end, I felt I
still had enough to work on the shallow end, and I wanted to
devote more time to it.
Q. So you were willing to go further in finding similarities
than FBI Agent Cadigan; is that right?
A. I don't know what you call "further." I was asked to do an
examination. I did it according to the criteria that I
normally follow, and that's how I was going to proceed.
Q. My question is: Isn't it your understanding, sir, that you
were going to come to a different conclusion than Agent
Cadigan?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TIGAR:
Q. When you do examinations in a laboratory, is it relevant to
you to know what other examiners have concluded looking at the
same thing?
A. I was aware that Agent Cadigan --
George Krivosta - Cross
THE COURT: Answer the question.
THE WITNESS: Okay. Can you just give me the
question, please.
BY MR. TIGAR:
Q. Yes, sir. When you do examinations, is it relevant to you
to know what examiners have concluded with respect to the same
thing?
A. Yes, it is.
Q. And in fact, sir, in your prior experience testifying, you
have been called in to testify to additional or different
conclusions than those reached by official law enforcement
people in the jurisdiction where you're testifying?
MS. WILKINSON: Objection, your Honor, based on the
prior ruling. Conclusions.
THE COURT: Well, overruled.
BY MR. TIGAR:
Q. Just yes or no, sir.
A. One more time on the question.
Q. Yes, sir. In your background, sir, isn't it the fact that
you have been retained to testify in cases -- in cases where
you're going for give an opinion that goes beyond or is
different from the opinion given by the law enforcement people
in the jurisdiction where you're testifying?
A. Yes, I have.
Q. And in fact, you did that in a New Jersey case, didn't you,
George Krivosta - Cross
sir?
A. In a New Jersey case and in a New York case, also.
Q. All right. Now, is this a case in which your finding of
similarities, your understanding, is different from the finding
of similarities and differences that Agent Cadigan thought
should be pointed out?
A. We are both in agreement on what's in the -- the deep hole.
Q. But you are not in agreement on what's in the shallow hole;
right?
A. I believe that may be the case, yes.
Q. All right. Now, did you measure the drill bit?
A. I did not.
Q. Do you know what the diameter of the drill bit is?
A. I believe it was a quarter-inch drill bit.
Q. You don't know.
A. No.
Q. Did you take measurements off it? Did you measure the hole
in the lock?
A. I did not.
Q. Do you have an idea what the size of the hole is?
A. It should be for what that drill bit is.
Q. Oh. Is it your testimony that the hole in the lock should
be identical to the diameter of the drill bit?
A. Not identical, because you can have differences. I did not
measure the hole. My goal was to do a microscopic comparison
George Krivosta - Cross
of one item to another item.
Q. Did you do your own test impression in lead?
A. I did not.
Q. You testified that it is important to know what material
the test impression is used in; correct? Or done in?
A. Yes, it can be important, yes.
Q. Well, you said that you want to make sure that the test
impression material is soft; correct?
A. Right. You always start with the softest item first so as
not to change the tool.
Q. And do you know whether the lead in which the test
impression was made contained antimony or recycled products or
anything that would have cautioned it to be hard?
A. I do not.
Q. You'd expect the FBI to get the right kind of lead; right?
A. Relative to the hardness of metals, even if we put a little
hardener in it, lead would still be considered soft.
Q. My question is: You'd expect the FBI to get the right kind
of lead, wouldn't you?
A. Yes.
Q. Did you know if you were going to make that test impression
in lead with respect to compare with -- you said you'd use a
drill press; correct?
A. Yes.
Q. Would you run the -- as you lifted the drill bit up from
George Krivosta - Cross
the test-impression material, would you leave the drill press
spinning, or would you let it stop?
A. It would be spinning.
Q. Spinning. And do you know whether or not when the drill
was -- whatever drill bit was used to drill this lock was
withdrawn from the lock -- do you know whether it was spinning
at the time it was withdrawn from the lock or if it had stopped
down there?
A. I wouldn't know.
Q. You testified, sir, about your experience in ballistics; is
that correct?
A. Yes.
Q. Now, when a Smith & Wesson revolver with a 4-inch barrel is
fired, at what -- do you know the speed of rotation of the
bullet as it leaves the barrel?
A. They're spinning very fast. You know, depending on what
load we pick, if we talk about, say, something coming up, to
keep the mathematics simple, a thousand feet per second, which
is reasonable for a .38 Special Smith & Wesson -- and I think
that the twists are like 1 in 15 or 1 in 18, which is a little
tough mathematically. So we'd be talking about, just to make
it 1 in 12, to keep the mathematics simple -- we're talking
about a thousand rotations a second. When we talk about drill
terminology, we're talking about rotations a minute, so we have
to rotate by another 60. So we're talking about 60,000
George Krivosta - Cross
rotations a minute, where a drill is spinning at a fraction of
that. They're only spinning at about, say, 3,000 rotations a
minute.
Q. Exactly, sir. And the bullet is also moving a good deal
faster than your average homeowner can punch a hole with a
drill. Right?
A. That's correct.
Q. All right. Now, as the bullet moves out of the barrel of
the gun, it is twisting. Is that correct? Is that your
understanding?
A. It's spinning.
Q. It's turning, spinning?
A. But it should be following the rifling.
Q. It's spinning and following the rifling.
A. Yes.
MS. WILKINSON: Your Honor, I'm going to object to
Mr. Tigar agreeing with the --
THE COURT: Yes. Withhold your comments, please.
MR. TIGAR: Yes, your Honor.
BY MR. TIGAR:
Q. As the bullet spins inside the barrel, how many rotations
will it make between the time the firearm is discharged and the
time it leaves the front end of the barrel on a 4-inch barrel?
A. It's going to make maybe a third of a rotation.
Q. And the difference is -- between what we're seeing is that
George Krivosta - Cross
your hypothesis is that a spinning drill bit down inside the
hole held there for a minute -- Suppose I put a drill down
inside a hole and hold it there for a minute and pull the
trigger. How many rotations will that drill bit make inside
that hole?
A. It's making its rotations. It's cutting away material, and
it gets deeper and deeper. When you pull it away, it stops
cutting and the hole doesn't get any deeper. So I don't know
where this spinning has anything to do with one another.
Q. I didn't ask you about that, sir. I asked you the
question -- and it's simple mathematics: How many times is
that drill bit going to be turning around in that hole in a
minute?
A. It may make 6,000 -- 3,000 revolutions in that minute.
Q. Well, would you look at the drill in front of you, sir.
And does it have marked on there what the rated RPM is?
A. My guesstimate of rotations -- this is only 400 rotations a
minute.
Q. Yeah. And do you know of any commercial home drill that
makes 6,000 -- runs at 6,000 RPM?
A. No.
Q. Okay. So your 6,000 was an estimate and you want to
reconsider it?
A. Yeah.
Q. What would you make it now?
George Krivosta - Cross
A. Less --
Q. Pardon?
A. Less than a thousand.
MR. TIGAR: Will your Honor indulge me for a moment?
THE COURT: Yes.
MR. TIGAR: Nothing further.
THE COURT: Any redirect?
MS. WILKINSON: Yes.
THE COURT: All right.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Krivosta, during cross-examination, you were asked
about the examination you conducted in Cheyenne. Do you
remember that?
A. Yes, do I.
Q. Mr. Cadigan was present?
A. Yes, he was.
Q. Was there also a member of the defense team that was
present observing everything that you did?
A. Yes, there was.
Q. Now, you told Mr. Tigar that you and Mr. Cadigan had
discussed what you were seeing at the time you were observing
the lock through the microscope. Is that right?
A. Yes.
Q. And you were focusing at that time on the shallow
George Krivosta - Redirect
impression, and he was asking you to look at the deeper
impression; is that right?
A. Yes.
Q. Now, you -- I believe defense counsel asked you whether
there was some disagreement over your conclusions. Is that
right?
A. Yes, he did.
Q. Now, do you understand what the disagreement was between
the two of you?
A. The -- I thought that he had gone "inconclusive" on the --
the shallower impression. That's not to say that it had not
been the result of the drill, but he had not made a
determination.
And in actuality, at one point I had focused the scope
and I leaned out of the way and I asked him to lean over my
shoulder and to look at what I had, and I had shown him some of
what I was looking at.
Q. So he was more conservative on that shallow impression; is
that right?
A. Yes.
Q. Now, as to the deep impression, did you agree on your
findings, both you and Mr. Cadigan, of the similarities that
you saw in the deep impression?
A. Without doubt.
Q. Have you described that comparison picture before that
George Krivosta - Redirect
you've seen, Government's Exhibit 157, which shows the
similarities?
This is the photograph Mr. Cadigan put together.
Right?
A. Yes.
Q. How did you describe that photograph?
A. As textbook picture perfect.
Q. Now, you were also asked about whether you have been hired
on certain occasions to give different opinions from others.
Is that right?
A. Yes.
Q. Now, have you come to an opinion or done a review of this
case prior to when the Government asked you about its findings?
MR. TIGAR: Object to that, your Honor.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Mr. Krivosta, have you changed your opinion or your belief
about the similarities of this tool mark and tool mark
impression in any way since you first viewed these photographs?
A. I have not.
Q. And does it matter whether the Government hires you, or
whether defense hires you?
A. It does not.
MS. WILKINSON: No further questions.
THE COURT: Any redirect (sic)?
George Krivosta - Redirect
MR. TIGAR: Yes, your Honor, quickly.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. Textbook picture perfect. Is that what you said?
A. Yes.
Q. What textbook?
A. If I was going to write one and put this chapter in it,
this would be an excellent picture to use.
Q. Thank you. But is there in the scientific community a
textbook in which the methodology that you used in finding
these similarities is validated according to acceptable
scientific principles?
MS. WILKINSON: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: I believe if you review the criteria in
the published data that's within the --
THE COURT: Answer the question, will you, please.
THE WITNESS: Yes, your Honor.
There are journals that do support my methodology.
BY MR. TIGAR:
Q. Is there a -- my question was is there a textbook that
validates the finding of these similarities according to
acceptable scientific statistical principles?
A. Textbook, I don't know of one specifically.
MR. TIGAR: Thank you.
George Krivosta - Redirect
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Krivosta, do you consider the drill bit -- the
substantive drill-bit comparison to be part of the tool marks
comparisons that you do?
MR. TIGAR: Objection. Improper redirect.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Mr. Krivosta, you said that you told Mr. Tigar that there
was no literature or no book that you're aware of to support
the scientific comparisons used in drill-bit comparison. Is
that right?
A. Yes.
Q. Do you have more general scientific study or statistical
data that you use in tool marks to support your comparison?
A. Yes.
Q. And what do you use to make that type -- to support your
methodology?
A. There are a number of articles and journals that have been
published throughout the year, many of them appearing in the
Association of Firearm/Tool Mark Examiners Journal, other in
the Journal of Forensic Sciences.
As an example, the idea of finding areas of congruence
and how significant they are, a fellow by the name of Biasotti
did his master's thesis and published this as early as -- I
George Krivosta - Redirect
believe he started his thesis in like 1955 and published in
several journals from '57 through '59. And this is very
well-known in the field.
Q. Now, when we move to the actual drill bit that leaves the
tool mark in a padlock or some other surface, is the impression
created when the drill bit stops?
A. It's being created as the drill bit is cutting, and it's
going to stop when that drill bit breaks contact. As long as
the drill bit is turning, it's going to keep on cutting,
creating new markings.
The old markings come out as the chips.
Q. So with Government's Exhibit 126, I believe it is, the
padlock: If someone had drilled all the way through and not
stopped, would you find a tool mark?
A. If they had gone just a little bit further, they would have
eliminated the possibility of finding tool marks.
MS. WILKINSON: No further questions.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. Are you familiar with Dr. -- with -- excuse me --
Mr. Biasotti is now deceased. Is that correct?
A. To be -- I'm not even aware of that. I couldn't recall.
Q. Yes. Are you familiar with the chapter on the tool mark
identification and you -- co-authored by Mr. Alfred Biasotti
and Mr. John Murdock in the latest edition of the treatise
George Krivosta - Recross
Modern Scientific Evidence?
A. Can I see the cover, please.
Q. Have you read that?
A. I don't think I've had the opportunity to read that yet.
MR. TIGAR: All right. Nothing further. Thank you.
MS. WILKINSON: This witness is dismissed, your Honor.
THE COURT: Are you agreed to dismiss the witness?
MR. TIGAR: Yes, your Honor, we agree.
THE COURT: You may step down. You're excused.
THE WITNESS: Have a good day, your Honor.
THE COURT: Next, please.
MR. MACKEY: Your Honor, we would call Special Agent
Larry Tongate.
THE COURT: Please come forward, Mr. Tongate.
(Larry Tongate affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: It's Larry G. Tongate, T-O-N-G-A-T-E.
THE COURT: Proceed, Ms. Wilkinson.
MS. WILKINSON: Thank you, your Honor.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Tongate, tell the jury what you do for a living.
A. I'm a special agent with the FBI.
Larry Tongate - Direct
Q. How long have you been an agent?
A. A little over 24 years.
Q. Where are you currently assigned?
A. Kansas City, Missouri.
Q. Was that your assignment back in April of 1995?
A. Yes, it was.
Q. Now, after the bombing occurred on April 19, 1995, were you
assigned to participate in the investigation in Kansas?
A. Yes, I was.
Q. Did you continue to participate in -- on April 22, 1995?
A. Yes, I did.
Q. As part of your investigatory duties, were you assigned to
participate in the search of Mr. Nichols' home on April 22,
1995?
A. Yes, I did.
Q. Were you searching that home pursuant to the search warrant
that other witnesses have previously described?
A. That's correct.
Q. And did you review that search warrant prior to entering
Mr. Nichols' house?
A. Yes, I did.
Q. Now, did you personally seize some of the items during the
search?
A. Yes, I did.
Q. Before you began the search, were you told by other agents
Larry Tongate - Direct
that Mr. Nichols had told agents the night before that there
were no booby traps in his house?
A. No.
Q. Did you find any booby traps in his house?
A. I did not.
Q. Were you told that Mr. Nichols had told agents the night
before that he had no explosives in his house?
A. No.
Q. Did you find explosives in his house?
A. Yes.
Q. Where did you find explosives in Mr. Nichols' house?
A. In the -- in a box in the basement storage area of 109
South 2nd.
Q. And where was the -- was the box open or closed when you
found it?
A. It was on the floor, sealed. There were other boxes on top
of it.
Q. And did you open that box?
A. Yes, I did.
Q. What did you see when you opened the box?
A. I saw a number of clear plastic bottles in plastic, and
laying on top of the bottles were two stacks of Primadet,
60-foot nonelectric blasting caps.
Q. You said you also saw plastic bottles in that box. Were
they empty, or were they full?
Larry Tongate - Direct
A. They were empty.
Q. Okay. And what did the Primadet look like that you saw?
A. It was orange in color, and it was wrapped with a cardboard
sleeve around it. There were two sections. One group had
four, and the other one had one single strand of the 60-foot
Primadet.
Q. So there were five coils total in that box?
A. Five coils, that's correct.
Q. What did you do when you saw the Primadet coils in that
box?
A. I requested a photographer come take a photograph of the
items as I found them.
Q. I take it the photographer did that.
A. He did.
Q. Can you look at your screen and see Government's Exhibit
140. Is that the photograph that you caused to be taken?
A. It is.
Q. And does that show the Primadet as you found it in
Mr. Nichols' house?
A. It does.
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 140.
MR. TIGAR: No objection, your Honor.
THE COURT: 140 received, may be published.
BY MS. WILKINSON:
Larry Tongate - Direct
Q. Now, Mr. Tongate, you're familiar with the black pen up
there?
A. Yes.
Q. Can you show the jury and describe for them what they're
seeing in this photograph?
A. Well, as I said earlier, there were two areas of the
Primadet that I found. One roll consisted of four rolls of the
Primadet. The other one just the single strand.
These are the plastic bottles that were in clear
plastic that the Primadet was lying on top of.
Q. Now, after you saw these in place and the photographer took
this photo, did you ask him to take another photograph?
A. Yes, I did.
Q. What did you ask him to photograph?
A. I removed the Primadet so that he could take a closeup
photograph of the Primadet.
Q. All right. Let me show you Government's Exhibit 141. Is
this that closeup photograph?
A. Yes, it is.
MS. WILKINSON: Your Honor, we offer 141 into
evidence.
MR. TIGAR: No objection, your Honor.
THE COURT: Received.
BY MS. WILKINSON:
Q. Now, tell the jury, on the left side, that is the one coil
Larry Tongate - Direct
of Primadet that you found?
A. Yes, it is.
Q. And on the right side, what are we seeing?
A. That is the four additional rolls of the Primadet.
Q. Now, if I do a closeup, can you tell the jury exactly
what's noted on this sleeve?
A. If I may use my glasses.
Q. Sure. Let me try to -- whoops.
MS. WILKINSON: Can we have it displayed, please, to
the jury.
THE COURTROOM DEPUTY: There is nothing on the screen.
141?
MS. WILKINSON: Yes.
BY MS. WILKINSON:
Q. All right. Is that a closer shot of the Primadet?
A. Yes, it is.
Q. Can you read that, or would it help if I gave you the
original for the --
A. I have the original, if I may use it.
THE COURT: Yes.
BY MS. WILKINSON:
Q. Let's start at the top where it says, "Primadet." What
does it say under "Primadet"?
A. "Nonelectric delay detonators. Not for public sale."
Q. Go over to the right. What does it say there?
Larry Tongate - Direct
A. "60 FT/PI."
Q. And the warning label?
A. "Use of this product by persons who lack adequate training,
experience, and supervision may kill or injure. Use only if
you are engaged in day-to-day use of explosives in mining and
construction and will limit its use to trained, experienced,
supervised persons. See instructions on case insert."
Q. Now, over on the side -- and we can't see it too well --
can you tell the jury starting on the left there -- you see
that, what it says there?
A. Yes, I can.
Q. What does that say?
A. "Danger, blasting cap." Underneath it says, "Explosive";
and then it says, "Keep from children."
Q. Okay. Now, in this photograph, you told us already that
it's marked 60-foot. Is that right?
A. That is correct.
Q. Down there at the bottom, can you circle that other tag
there that has a partial number, or we can see part of the
number. Excuse me.
What does that say on that tag?
A. It says "8."
Q. Now, is that Primadet that you found in Mr. Nichols' house
identical to the Primadet stolen from the Martin Marietta rock
quarry in Marion, Kansas?
Larry Tongate - Direct
A. Yes, it is.
Q. During your participation in the search of Mr. Nichols'
house, did you also search other rooms?
A. Yes, I did.
Q. Did you search parts of the kitchen?
A. Yes, I did.
Q. All right. Let me show you -- and did you seize certain
items from there?
A. Yes, I did.
Q. Let me show you Government's Exhibit 1838, which is not yet
in evidence. Do you recognize that?
A. Yes, I do.
Q. And did you seize that item?
A. Yes, I did.
Q. How do you recognize it?
A. First off, I recall the card itself; and I also have the
packaging with me here that I placed the item in, and it's my
initials and writing on the packaging.
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 1838.
MR. TIGAR: May I voir dire, your Honor?
THE COURT: You may.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Agent Tongate, this document that you're looking at: You
Larry Tongate - Voir Dire
found that in the kitchen?
A. Yes.
Q. Was it with some other papers?
A. Yes.
Q. What other papers was it with?
A. There were, as I recall, numerous business cards and other
miscellaneous papers.
Q. So just a whole bunch of business cards of which this was
one?
A. That's correct.
MR. TIGAR: If your Honor please, we'd like to have
all the business cards found at the same location published
simultaneously under Rule 106.
THE COURT: Do you have such a photograph?
MS. WILKINSON: Of all? No, we don't, your Honor.
THE COURT: About how many others were there?
THE WITNESS: I'm going to say at least 20, maybe as
many as 40 different cards and pieces of paper. That's a
guess.
THE COURT: All right.
Well, they don't have such a photograph. I'll permit
this one to be displayed in view of the answer.
MS. WILKINSON: Your Honor, I can clarify one other
thing with Mr. Tongate.
DIRECT EXAMINATION CONTINUED
Larry Tongate - Direct
BY MS. WILKINSON:
Q. Did you find other items in the cabinet where you found the
business cards?
A. Yes, I did.
Q. Did you find Mr. Nichols' passport?
A. Yes, I did.
Q. Do you recall anything else that you found in that area?
A. Receipts. I found a voltage tester and things of that
nature and other papers.
Q. Do you remember what type of receipts were found in that
area?
A. I believe there was a Wal-Mart receipt. I'm not sure of
the date.
MS. WILKINSON: We'd offer 1838 and publish it.
THE COURT: Yes. I've received it over objection, I
think, to the fact that it -- the photograph is not in the
context of the other cards.
That's my understanding of your position, Mr. Tigar;
is that right?
MR. TIGAR: Yes, your Honor.
MS. WILKINSON: I'm offering the actual underlying
business card. This is obviously just a display on the
computer.
BY MS. WILKINSON:
Q. Mr. Tongate, you have the business card up there, don't
Larry Tongate - Direct
you?
A. Yes, I do.
Q. Tell the jury what this business card says starting from
the left?
A. It says, "For the people"; and then on the right side it
says, "By the people." And underneath that it says, "Missouri
51st Militia." And in the lower left hand corner, it has "P.O.
Box 182, Grain Valley, MO, 64029." And on the lower right it
has, "Phone/Fax, (816) 941-3375."
Q. Did you find another business card with this same
description, "Missouri 51st Militia," written on a business
card?
A. I think it just had "MO" instead of "Missouri" written on
it; but yes, I did.
Q. Take a look at Government's Exhibit 1839, which is not yet
into evidence. Is this that card?
A. Yes.
Q. Do you see that same marking that you've just described,
MO?
A. Yes.
Q. Do you recognize this card?
A. Yes, I do.
Q. Did you seize this and put it in the same plastic wrapping
and sealed the way you've described it?
A. Yes, I did.
Larry Tongate - Direct
MS. WILKINSON: Your Honor, we'd offer 1839.
MR. TIGAR: No objection -- Same objection, your
Honor, but I assume it's overruled.
THE COURT: Was this card in the same area with the
others?
THE WITNESS: Yes, it was, your Honor.
THE COURT: All right. 1839 received.
MS. WILKINSON: May we publish?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Mr. Tongate, start at the top there and tell the jury what
they're seeing.
A. It's a business card. At the top it says, "MO 51st
Militia." And then underneath, it has the name "Thomas A.
Samples, 3005 N.W. Florence, Riverside, MO, 64151."
In the lower left-hand corner, it has, "Independent
Computer Consultant," and it gives his address on the web, I
believe.
On the right-hand side, it has "Voice" and a telephone
number of "816 741-7480" and "Data 816 741-7804."
Q. Now, at the bottom we see a Q number. Is it your
understanding that's the Q number Mr. Mills described for us
that the laboratory uses for forensic analysis?
A. That's correct.
MS. WILKINSON: We have no other questions, your
Larry Tongate - Direct
Honor.
THE COURT: All right. Mr. Tigar, do you have
questions?
MR. TIGAR: Yes.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Agent Tongate, you went -- you retrieved the items that
you've testified about now on what date, sir?
A. On -- it was -- the search began on the 22d and concluded
the early morning of the 23d of April.
Q. And you've been sitting here as the case agent; right?
A. Yes.
Q. So we don't have to go over this again, this is the same
one that Agent Jasnowski testified about; is that correct?
A. That is correct.
Q. Were you present at the same briefing that Agent Jasnowski
testified about?
A. Yes, I was.
Q. At that briefing were you told anything about what
Mr. Nichols had told the agents about what was in his house?
A. Not that I recall, no.
Q. So as you started the search, you don't know what
conversation he had with those agents about any items in his
house; right?
A. I did not.
Larry Tongate - Cross
Q. You did not; and you didn't know whether or not he told
them, "Don't mistake one thing for another," and so on?
A. I did not.
Q. Okay. And also, just to make sure, you did not have access
to a diagram of the house drawn by Mr. Nichols showing the
location of various things?
A. I did not.
Q. Okay. You have seen that diagram since then; right?
A. I have.
Q. Okay. Now, as you -- you described going into the basement
and you saw that Primadet; right?
A. That's correct.
Q. Okay. Now, you know that Primadet is a product made by a
commercial manufacturer; correct?
A. Yes.
Q. And prior to the 22d, had you ever had occasion to use
Primadet?
A. I had not.
Q. All right. Had you ever seen anybody use it?
A. No.
Q. Did you know what sorts of things it was used for?