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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE 2 AT KNOXVILLE - - - 3 UNITED STATES OF AMERICA, : Docket No. CR 12-107 4 : Plaintiff, : Knoxville, Tennessee 5 : Tuesday, May 7, 2013 versus : 8:45 a.m. 6 : MICHAEL R. WALLI, : 7 MEGAN RICE, : Trial Day 2 of 3 GREG BOERTJE-OBED, : 8 : Defendants.: 9
10 - - - 11 TRANSCRIPT OF TRIAL BEFORE AMUL R. THAPAR 12 UNITED STATES DISTRICT COURT JUDGE and a jury - - - 13
14 APPEARANCES:
15 For the United States: MELISSA M. KIRBY, ESQ. JEFFREY E. THEODORE, ESQ. 16 U.S. Department of Justice Office of U.S. Attorney 17 800 Market Street, Suite 211 Knoxville, TN 37901 18
19 For the Defendant, CHRISTOPHER SCOTT IRWIN, ESQ. Michael R. Walli: Lewis and Irwin Law Firm 20 P.O. Box 20363 Knoxville, TN 37920 21 WILLIAM P. QUIGLEY, ESQ. 22 Loyola University College of Law 7214 St. Charles Avenue 23 Campus Box 902 New Orleans, LA 70118 24
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1 For the Defendant, FRANCIS L. LLOYD, JR., ESQ. Megan Rice: Law Office of Francis L. Lloyd, Jr. 2 9111 Cross Park Avenue Suite D-200 3 Knoxville, TN 37923
4 For the Defendant, PRO SE 5 Greg Obertje-Obed: Standby Counsel: 6 BOBBY E. HUTSON, JR., ESQ. Federal Defender Offices 7 Of Eastern Tennessee (Knoxville) 800 South Gay Street 8 Suite 2400 Knoxville, TN 37929 9 Court Reporter: LISA REED WIESMAN, RDR-CRR 10 Official Court Reporter 35 W. Fifth Street 11 P.O. Box 1073 Covington, KY 41012 12 (859) 291-4410
13 Proceedings recorded by mechanical stenography, 14 transcript produced with computer.
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1 (Proceedings commenced at 8:47 a.m.)
2 THE COURT: Call the case again.
3 DEPUTY CLERK: This is Criminal Action 3-12-CR-107.
4 United States of America versus Michael Walli, Megan Rice,
5 Greg Boertje-Obed. Is the government present and ready to
6 proceed?
7 MR. THEODORE: Present and ready, Your Honor.
8 DEPUTY CLERK: Defendant Walli, present and ready to
9 proceed?
10 MR. QUIGLEY: Present and ready, Your Honor.
11 DEPUTY CLERK: Defendant Rice, present and ready to
12 proceed?
13 MR. LLOYD: Present and ready, Your Honor.
14 DEPUTY CLERK: Defendant Boertje-Obed, present and
15 ready to proceed?
16 DEFENDANT BOERTJE-OBED: Present.
17 THE COURT: Are you ready, Mr. Boertje-Obed?
18 DEFENDANT BOERTJE-OBED: Yes. I had to think about
19 it.
20 THE COURT: I'm sorry?
21 DEFENDANT BOERTJE-OBED: Yes.
22 THE COURT: Okay, great. Counsel, is there anything
23 we need to cover? The jury is obviously not in the courtroom.
24 Is there anything we need to cover?
25 MR. THEODORE: Not from the government, Your Honor.
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1 THE COURT: I'm just finding a plug, so you can talk.
2 Mr. Irwin?
3 MR. IRWIN: Nothing, Your Honor.
4 THE COURT: Mr. Lloyd?
5 MR. LLOYD: No, Your Honor.
6 THE COURT: You guys are good as your promise. Mr.
7 Boertje-Obed?
8 DEFENDANT BOERTJE-OBED: Nothing else.
9 THE COURT: Great. I have nothing. Is the jury
10 here?
11 MR. QUIGLEY: Your Honor, I apologize, I was still
12 talking with Mr. Walli when you asked. Two of the defendants
13 are interested in adding short character witnesses, both
14 Catholic priests, at the end of the defense. It would be
15 Father Jerry Zawada, Z-a-w-a-d-a.
16 MR. IRWIN: As a point of clarification, Your Honor,
17 there are jurors sitting in the back.
18 THE COURT: There are jurors in the courtroom?
19 MR. IRWIN: Sir? My apologies. I thought I
20 recognized a juror.
21 THE COURT: That scared me. Thank you. Although we
22 hadn't covered anything yet. There's no witnesses in the
23 courtroom, correct?
24 MR. THEODORE: Your Honor, there is -- he's out of
25 the courtroom now. Just our agent in charge is here.
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1 THE COURT: That's fine.
2 MR. THEODORE: There are no others, and we would ask
3 for, again, all witnesses from the defense to be sequestered.
4 THE COURT: Yeah, the rule applies.
5 MR. IRWIN: The only witnesses that we're going to
6 have, other than the defendants, are two experts who we would
7 like to have in the courtroom, Colonel Wright and Mr.
8 Sessions, neither of whom are in the courtroom at this point.
9 MR. THEODORE: Your Honor, we are objecting to those
10 witnesses being called. One of those witnesses is one of the
11 witnesses that was proposed pretrial at the last hearing that
12 we had, proposed expert. That was Colonel Wright. We don't
13 believe it's a proper subject for expert testimony. Does not
14 meet the standard for 702 at all. It's getting into legal
15 conclusions. It's getting into, basically, into justification
16 defenses indirectly which, of course, this Court has
17 precluded. And the other witness as well.
18 So we're going to object to those witnesses to begin
19 with. We're going to file a motion today on that.
20 THE COURT: Okay.
21 MR. THEODORE: But the motion will be very similar to
22 the motion we already filed when they proposed those witnesses
23 just a couple weeks before trial.
24 THE COURT: I understand that, but I guess the
25 preliminary question, before I -- and I can decide that,
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1 that's fine, once the motion's filed. Do you object to them
2 being in the courtroom under the understanding that you
3 reserve all your rights to move to exclude them?
4 MR. THEODORE: You know, typically, I do understand
5 that expert witnesses oftentimes are allowed to be in the
6 courtroom. Again, with that understanding, yes, Your Honor,
7 we don't object.
8 THE COURT: Okay. So you can have them in the
9 courtroom. The United States reserves the right to move to
10 exclude them in total.
11 MR. QUIGLEY: I understand. The character
12 witnesses --
13 THE COURT: What's the United States' position?
14 MR. QUIGLEY: -- are going to be very brief.
15 MR. THEODORE: If they're character witnesses, I
16 don't think they should be in the courtroom.
17 THE COURT: I don't think Mr. Quigley is going to ask
18 they be in the courtroom.
19 MR. QUIGLEY: We are asking they be in the courtroom.
20 THE COURT: Why would they be in the courtroom?
21 MR. QUIGLEY: Because they want to observe.
22 THE COURT: No. If they're going to testify,
23 Rule 615 applies to them.
24 MR. THEODORE: Just for the defendants, especially
25 Mr. Boertje-Obed, character witnesses, that's fine, they have
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1 a right to call them. If they want to go down the perilous
2 path, hopefully he understands we're allowed to ask certain
3 things about their backgrounds that maybe otherwise we
4 wouldn't be able to get into. So that's their prerogative.
5 THE COURT: The U.S. calls any witness at their own
6 peril.
7 MR. THEODORE: I think character witnesses are unique
8 in that regard, because we're able to ask them did you know of
9 this and did you know of that. Especially for Mr.
10 Boertje-Obed.
11 THE COURT: I'll ask, Mr. Hutson, will you advise Mr.
12 Boertje-Obed of the perils -- both the pluses and perils of
13 character witnesses?
14 MR. HUTSON: I will, Your Honor. We've also reviewed
15 the 404(b) notice that we received from the government in this
16 case.
17 THE COURT: So he understands all that?
18 MR. HUTSON: He does.
19 THE COURT: Okay, great. So the experts -- the
20 purported experts won't be excluded, but the character
21 witnesses will because, I mean, the rule applies to them.
22 MR. QUIGLEY: Okay. If I could just tell them.
23 THE COURT: Yes.
24 MR. THEODORE: Since we're talking about
25 sequestration also, we had a Special Agent Reanna Day listed
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1 on our witness list. In light of the stipulations, though,
2 regarding foundation, we don't believe we need to call her.
3 Therefore, she is remaining in the courtroom.
4 THE COURT: That's fine. You don't anticipate
5 calling her?
6 MR. THEODORE: That's right, based on the
7 stipulations.
8 THE COURT: Who is the designated agent?
9 MR. THEODORE: Your Honor, that would be Ryan Baker.
10 THE COURT: Okay. And what agency? I'm sorry, Mr.
11 Baker.
12 MR. THEODORE: Department of Energy, Office of
13 Inspector General.
14 THE COURT: DOE IOG?
15 MR. THEODORE: Yes.
16 THE COURT: Anything else? How are we doing with the
17 jury?
18 COURT SECURITY OFFICER: Two missing.
19 THE COURT: Anything else from the U.S.?
20 MR. THEODORE: No, Your Honor.
21 THE COURT: Anything from the defendants?
22 MR. IRWIN: No, Your Honor.
23 MR. LLOYD: No, Your Honor.
24 DEFENDANT BOERTJE-OBED: No.
25 THE COURT: Great. Counsel, we do have an overflow
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1 room available today. It's 1B. It will not be available the
2 rest of the week because other judges need it, but I guess the
3 calendar cleared today so we were able to take advantage of
4 that so we can accommodate people. But tomorrow, we won't be
5 able to. We're certain tomorrow we won't be able to. So just
6 so everyone knows. And tomorrow, once we reach what the CSOs
7 or marshals determine is capacity, that's it.
8 MR. THEODORE: Your Honor, we have made an exhibit
9 list for the Court. Can we provide that to the Court at this
10 time?
11 THE COURT: Is it different than what I have?
12 MR. THEODORE: Not a list. An actual binder of
13 exhibits.
14 THE COURT: Oh, that would be fantastic.
15 MR. QUIGLEY: Your Honor, one issue before the jury
16 comes in, please. Apparently, there is a sound issue for the
17 overflow room and in various parts of this room, I guess it's
18 not the best. So occasional suggestions to people, like me,
19 to use the microphone --
20 THE COURT: Okay. I think, you know, in a trial, it
21 won't be as much of a problem because you will be using the
22 podium for witnesses. The witnesses will have a mike, and
23 then you'll use the podium for openings.
24 MR. QUIGLEY: Okay.
25 THE COURT: With my one finger rule, hopefully that
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1 will eliminate it. Maybe that will encourage you to stay
2 closer to the podium, right?
3 MR. QUIGLEY: It will.
4 THE COURT: I was a wanderer in trial myself so it's
5 hard for me to get on people about it.
6 Counsel, our final juror just arrived. I apologize
7 for the delay. I think it's my fault in part. I will make
8 sure they are here 15 minutes early, from now on, before we
9 are to start so you are not waiting.
10 MR. LLOYD: Your Honor, if I might make the Court
11 aware of a problem. The parking lot on this side of the
12 courthouse is one that is routinely slow to process credit
13 cards, and this morning one of the facilities for doing that
14 was inoperable. So --
15 THE COURT: That's why they'll be here 15 minutes
16 early.
17 MR. LLOYD: The replacement of an individual by a
18 machine did not make it more efficient, Your Honor. It just
19 eliminated a job.
20 (The jury entered the courtroom at 9:07 a.m.)
21 THE COURT: Good morning, ladies and gentlemen, and
22 welcome back. For those of you that were on time, thank you.
23 I appreciate it. As of tomorrow, and I should have mentioned
24 this yesterday, when we start at 9:00, we expect everyone to
25 be here at 8:45. I make the lawyers be here a half hour in
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1 advance. Jurors should be here 15 minutes in advance. As my
2 dad once told me, if I'm on time, I'm ten minutes late. And I
3 think in this courthouse, and in all the courthouses I preside
4 in, if you're on time, you're 15 minutes late. So I have to
5 one up my dad. That's my usual practice. Please be on time
6 from now on.
7 We'll go a little extra to make up for the late start.
8 So your schedule will be 9:00 to 10:45. We'll take a break at
9 10:45. 11:00 to 12:30. If we stop right at 12:00, I find, I
10 don't know if it's true in Knoxville, but it's a little harder
11 to get lunch. If you're kind of on an off time, you can
12 usually get in and get lunch quicker. So 12:30 to 1:30 will
13 be our lunch break. We'll go 1:30 to 3:30, a break from 3:30
14 to 3:45 and we'll go until 5:45-ish. Why I say "ish" is if I
15 finish a witness early and can't get another full witness in,
16 we may stop early. If I finish a witness -- if I'm close to
17 finishing a witness, I will finish the witness so the witness
18 does not have to come back, okay?
19 So I'm going to start now. Any questions before I do?
20 You should all have note pads and pens; is that accurate? You
21 leave the note pads there at night. We secure the courtroom.
22 No one will look at them, I will make sure of it, and they
23 will remain there and be on your seat in the morning.
24 Members of the jury, we are about to begin the trial of
25 the case you've heard about during jury selection. Now that
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1 you've been sworn, I will give you some preliminary
2 instructions to guide you in your participation in this trial
3 and how you should conduct yourself during the trial.
4 It will be your duty to find from the evidence what the
5 facts are. You and you alone will be judges of the facts.
6 You will then have to apply to those facts to the law as the
7 Court will give it to you.
8 You must follow the law, whether you agree with it or
9 not. Nothing the Court will say or do during the trial is
10 intended to indicate or should be taken by you as indicating
11 what your verdict should be. The evidence from which you will
12 find the facts may consist of the testimony of witnesses,
13 documents, and other things received into the record as
14 exhibits and any facts that the lawyers agree to or stipulate
15 to that the Court may instruct you to find.
16 Certain things are not evidence and must not be
17 considered by you. I will list them for you now.
18 Statements, arguments, and questions by the lawyers are
19 not evidence. Objections to questions are not evidence.
20 Lawyers have an obligation to their clients to make objections
21 when they believe evidence being offered is improper under the
22 rules of evidence. You should not be unfair or partial
23 against a lawyer or the lawyer's client because a lawyer has
24 made objections.
25 If I sustain or uphold an objection to a question that
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1 goes unanswered by the witness, you should not draw any
2 inferences or conclusions from the question. If the objection
3 is overruled, treat the answer like any other. If you are
4 instructed that some item of evidence is received for only a
5 limited purpose, you must follow that instruction.
6 You should not infer or conclude from any ruling or other
7 comment I may make that I have any opinions on the merits of
8 the case favoring one side or the other. I do not favor one
9 side or the other. Testimony that the Court has excluded or
10 told you to disregard is not evidence and must not be
11 considered as evidence.
12 Anything that you may have seen or heard outside the
13 courtroom is not evidence and must be disregarded. You are to
14 decide the case solely on the evidence presented here in the
15 courtroom.
16 There are two kinds of evidence, direct and
17 circumstantial. Direct evidence is direct proof of a fact
18 such as testimony of an eyewitness. Circumstantial evidence
19 is proof of a fact from which you can conclude or infer that
20 other facts exist. I will give you more detailed instructions
21 on these as well as other matters at the end of the case, but
22 keep in mind that you may consider both kinds of evidence.
23 As jurors, you are judges of the facts. It will be up to
24 you to decide which witnesses to believe, whether they are lay
25 or expert witnesses, and which witnesses not to believe, and
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1 how much of any witness's testimony to accept or reject.
2 I will give you some guidelines for determining the
3 credibility of witnesses at the end of the case.
4 As you know, this is a criminal case. The government has
5 the burden of proving its case by what is called beyond a
6 reasonable doubt. That means the government has to produce
7 evidence which, considered in light of all the facts, leads
8 you to believe that the defendants are guilty beyond a
9 reasonable doubt. The law does not require the defendants to
10 prove their innocence, testify on their own behalf, or
11 introduce any evidence.
12 The defendants have been charged by the government with
13 violating federal law by willfully injuring, destroying,
14 contaminating national defense premises; specifically,
15 buildings and the grounds within the Y-12 complex or
16 attempting to do those things with the intent to injure,
17 interfere with, and obstruct the national defense of the
18 United States.
19 The defendants are also charged with aiding and abetting
20 each other to destroy the property of the United States and
21 causing more than $1,000 in damages.
22 The charges against the defendants are contained in the
23 indictment. The indictment is simply the description of the
24 charges made by the government against the defendants. It is
25 not evidence of anything.
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1 The defendants pleaded not guilty to the charges and deny
2 committing the offense. They are presumed innocent and may
3 not be found guilty by you unless all of you unanimously find
4 that the government has found their guilt beyond a reasonable
5 doubt.
6 Now a few words about your conduct as jurors. First,
7 during the trial, you are not to discuss the case with anyone
8 or permit anyone to discuss it with you. Until you retire to
9 the jury room at the end of the case to deliberate on your
10 verdict, you are simply not to talk about this case.
11 Second, do not read or listen to anything touching on
12 this case in any way. If anyone should try to talk to you
13 about the case during the trial, please report it to me
14 immediately by promptly contacting the court security officer.
15 Third, do not try to do any research or make any
16 investigation about the case on your own such as researching
17 the witnesses, the parties, or the case on the internet.
18 In addition, you're not allowed to blog, tweet, or talk
19 about the case in any way. The United States Court in Miami
20 had to declare a mistrial after a six-week drug trial because
21 they found one of the jurors was blogging about the case.
22 That case cost the United States -- you, the taxpayers -- over
23 a million dollars. So that blogging cost the United States a
24 million dollars. That juror was arrested, held in contempt,
25 and prosecuted.
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1 So when I tell jurors this, they say I don't even touch
2 my email for a week. I don't even get on a computer. That's
3 not what I'm saying. I'm saying don't talk about the case in
4 any fashion, electronic or otherwise.
5 Fourth, please try to listen to the testimony of the
6 witnesses while they are testifying, because although the
7 court reporter is taking down everything that is said here in
8 court, the transcript is ordinarily not available later,
9 during deliberations.
10 But you may take notes, obviously, since you have
11 notebooks, during trial if you wish.
12 Fifth, the lawyers are not allowed to speak with you
13 during this case. As I mentioned yesterday, when you see them
14 at recess or pass them in the halls and they do not speak to
15 you, they are not being rude or unfriendly. They are simply
16 following the law. If I see you, I will live under that
17 similar admonishment and not talk to you, and I'm not being
18 rude or unfriendly. I'm just following my own rules, okay?
19 Finally, do not form an opinion until all the evidence is
20 in, keep an open mind until you start your deliberations at
21 the end of the case. If you wish, as I mentioned, you can
22 take notes, but leave them on your chair at night. And
23 remember, they are for your own personal use.
24 During the trial, it may be necessary for me to talk to
25 the lawyers out of your hearing about questions of law or
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1 procedure. Sometimes, although I highly doubt it, you could
2 be excused from the courtroom if I think it's going to take a
3 little longer and I want to let you have a break rather than
4 just sit there.
5 When we're talking up here, you can stand and take --
6 stretch out if you so choose. I will try to limit these
7 interruptions as much as possible, but you should remember the
8 importance of the matter you are here to determine and should
9 be patient, and I promise to keep the case moving.
10 The trial will now begin. First, each side may make an
11 opening statement, which is neither evidence nor argument.
12 Rather, opening statements are an outline of what the party
13 intends to prove, offered to help you follow and understand
14 the evidence as it comes in.
15 Next, the government will present its witnesses, and
16 counsel for the defendants may cross-examine them. Following
17 the government's case, the defendants may present their
18 witnesses, and the government's counsel may cross-examine
19 them.
20 Remember, the defendants do not have to prove their
21 innocence, testify on their own behalf, or introduce any
22 evidence whatsoever.
23 After all the evidence is in, the attorneys will make
24 their closing arguments to summarize and interpret the
25 evidence for you.
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1 Before they make their closing argument, I will give
2 final instructions. Once closing arguments are completed,
3 I'll give you one instruction at the very end, then it will be
4 for you to decide the case. That's when you can first talk
5 about the case amongst yourselves.
6 Opening statements will now begin.
7 Miss Kirby, you may proceed.
8 MS. KIRBY: Thank you, Your Honor. Good morning.
9 Before dawn on July 28, 2012, there was a security alarm that
10 went off with regard to a motion detector and the fence that
11 surrounds the protected area at the Y-12 National Security
12 Complex. A camera zoomed over and panned into that area, or
13 panned over and zoomed into that area where the alarm went off
14 to determine what was setting the alarm off, but it wasn't
15 clear what it was. There was nothing on the screen that
16 showed up right away.
17 A few more alarms go off. Could it be a false alarm, an
18 animal, maybe an after-hours maintenance crew setting it off
19 by accident?
20 Security was dispatched out to determine exactly what was
21 happening in that area. This area in the fence -- and this is
22 not just any fence. This fence has got three layers of chain
23 linked fence that are tall with barbed wire and motion sensors
24 and concrete barriers to prevent vehicles from coming through.
25 When these alarms were going off, they were next to the
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1 Highly Enriched Uranium Materials Facility. This fence runs
2 right by that building, and that building stores highly
3 enriched uranium.
4 So when the first responding security officer shows up on
5 the scene over there to determine what's setting these alarms
6 off, he sees three people. He sees the defendants, Michael
7 Walli, Megan Rice, and Greg Boertje-Obed. And behind these
8 three defendants, the guard, Kirk Garland, sees graffiti all
9 over the wall of the Highly Enriched Uranium Materials
10 Facility building. Spray painted words like Woe to the [sic]
11 Empire of Blood. He sees blood everywhere.
12 He calls for backup, and backup shows up in the form of
13 Sergeant Riggs, Chad Riggs. And the two gentlemen secure the
14 crime scene and detain these three defendants. And as they
15 stand there in the well-lit, protected area inside this
16 barrier fence, the questions come up, beyond that fence, in
17 the darkness, in these pre-dawn hours, are there more people?
18 Was this just a diversion from some other, bigger threat?
19 So Y-12 security activated to assess the threat. Should
20 the Y-12 plant accept deliverables later that morning, or
21 should those be -- should those materials be diverted
22 elsewhere for that day, until the actual threat level was
23 determined and secured?
24 As daylight revealed the extent of the damage to the
25 government property there at Y-12, there were holes cut in
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1 each of those chain link fences, large holes. Not only was
2 there spray painted messages all over the side of the Highly
3 Enriched Uranium Materials Facility building, but there was
4 also blood poured up and down the building, all over the
5 grounds. There was blood poured all over the concrete
6 barriers and the fencing area. There were spray painted
7 messages on those concrete barriers inside the fencing area.
8 There were also banners hanging on the fences that said
9 things like "Transform Now," "Transform Disarm." There was a
10 banner with a picture of a bomb that says "Never Again."
11 There are also -- there was also a corner of the Highly
12 Enriched Uranium Materials Facility building that had been
13 chipped by hammers, a little piece of the building that's
14 missing probably to this day, and danger tape in the form of
15 like crime scene tape was strung around that corner of the
16 building.
17 The defendants' items, their bolt cutters and binoculars
18 and papers, littered the whole area where they'd come through
19 the fences and where they were detained.
20 It was determined that there was no additional threat
21 that morning. But as the defendants had their captive
22 audience of responders, they proclaimed their anti-nuclear
23 agenda to them.
24 Ladies and gentlemen, as I introduced yesterday, my name
25 is Melissa Kirby. I'm an assistant United States attorney
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1 here in Knoxville, Tennessee. I live just down the road in
2 Blount County, and I was born a little further down the road
3 in Chattanooga, Tennessee. I work with my co-counsel here,
4 Jeff Theodore, in the U.S. attorney's office, and I've spent
5 11 years of my legal career in public service.
6 We really appreciate you all are spending your time this
7 week serving on this jury. You're all taking time away from
8 your lives, your jobs, your families and other obligations,
9 and we really appreciate that you're performing this very
10 important civic duty in this very important case.
11 During this trial, there's going to be a lot of evidence
12 for you to digest. I know you're going to pay close attention
13 as all this evidence is put on for you. You're going to hear
14 testimony from the head federal official at Y-12, Steve
15 Erhart. He'll testify about the history of Y-12, what Y-12
16 does, and he'll also talk about how Y-12, just right here in
17 Oak Ridge, is critical to our national defense.
18 You're also going to hear testimony from the first
19 responder, Kirk Garland, and his supervisor, the second
20 responder, Sergeant Chad Riggs, and they'll talk about their
21 observations at the crime scene that day.
22 You'll also hear from deputy general manager for security
23 operations, former Brigadier General Rodney Johnson, who was
24 responsible for making sure the repairs were made to the
25 property at Y-12 as a result of the damage done by these
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1 defendants, and he'll testify to the cost of the damage and
2 the repairs that were done and that it was in excess of a
3 thousand dollars. It was probably closer to the ballpark of
4 $8,000 worth of damage with regard to just base costs to fix
5 those particular things and clean up the mess.
6 You're also going to hear jail calls that were made, just
7 after the defendants were arrested, by the defendants. You'll
8 hear their own statements in those conversations and you'll
9 also hear their statements in some media interviews that these
10 defendants did.
11 Additionally, you're going to see photos from the crime
12 scene and see items that were seized at the crime scene, and
13 you're going to see the surveillance video of the actual
14 intrusion that occurred that night and see what the security
15 guard saw.
16 The evidence in this case will show not only that these
17 defendants did break into Y-12 and that they did do in excess
18 of a thousand dollars worth of damage to government property,
19 that their whole purpose was to interfere with or obstruct
20 Y-12 operations.
21 The defendants' intent in this case is clear through the
22 messages that they wrote on the buildings and on the concrete
23 barriers and in the statements that they left at the Y-12
24 crime scene, and also in some of the statements they've given
25 in their jail phone conversations and in their media
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1 interviews that they've done.
2 And also, through their actions, you'll also be able to
3 determine the intent these defendants had. The evidence will
4 show, clearly, that these defendants intended to injure,
5 destroy or contaminate national defense premises or Y-12
6 property in an effort to interfere with and obstruct the
7 national defense or Y-12 operations.
8 Evidence will also show that the defendants injured
9 property that belongs to the United States in excess of a
10 thousand dollars.
11 Not only did the defendants commit these crimes or
12 attempt to commit these crimes, but the defendants actually
13 did interfere with our national defense. Deliverables had to
14 be rescheduled the day of the incident and subsequent days
15 too. As a result, direct result of the defendants' actions,
16 Y-12 was shut down for two weeks. Y-12 operations ceased
17 during that time. They got behind on their deliverables, and
18 Y-12 has played catch-up probably ever since.
19 Now, we always ask jurors -- you are such a valuable
20 asset in the trial process -- to use your common sense and
21 your lifetime experiences because you all bring wonderful
22 lifetime experiences and common sense to the judicial system.
23 So when you're weighing all this evidence, considering all
24 this evidence, we ask that you find these defendants guilty
25 beyond a reasonable doubt of both counts in this case. Thank
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1 you.
2 THE COURT: Thank you, Miss Kirby.
3 On behalf of Mr. Walli, Mr. Irwin?
4 MR. IRWIN: Thank you, Your Honor. Good morning,
5 jurors. Please don't judge my client for the fact that I have
6 to use index cards. There's a lot of points here that I want
7 to keep track of.
8 My name is Chris Irwin, and I'm going to give my opening
9 statement. Following me will be Mr. Obed, who will give brief
10 comments, remarks, and then Mr. Francis Lloyd on behalf of
11 Sister Rice.
12 I want to address three points with you this morning.
13 First, a general layout as to the trial and what we believe
14 the evidence will show. Following that, what happened on
15 July 28, 2012. After that, what happened following it, and
16 then something that was actually there that night.
17 You all just went through voir dire yesterday. That's
18 French for "the truth," I believe. Now we're in opening
19 statements, where we're going to talk about what we believe
20 the evidence is going to show, basically provide you a road
21 map throughout the trial.
22 We've heard the mention of reasonable doubt. It can be
23 as large as an elephant or as small as a mouse. There's no
24 size requirement for reasonable doubt.
25 The government's evidence will be informative of what
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1 comes through. It will be informative as to what these
2 clients had and what they did not have. What they did, and
3 what they did not do. What you'll find throughout the
4 evidence is they had white roses. They had Bibles. They had
5 banners. They had signs.
6 What they didn't have was grenades. They didn't have
7 machine guns. They didn't have dynamite. They weren't
8 dressed in camouflage. That will be throughout the evidence
9 as the government tries to show to you to prove to all of us
10 that these people came with the intent to interfere with
11 national defense.
12 Following that, we will present our case, where we
13 believe the evidence will show who these people exactly were,
14 non-violent protesters engaged in symbolic protests.
15 That brings me to the night of July 28, 2012. As Miss
16 Kirby just stated, common sense doesn't end at this door to
17 the courthouse. You can bring it in with you today to make
18 your decision at the end of this trial.
19 On the night of July 28, 2012, these three people, Mr.
20 Walli, Sister Rice and Mr. Obed, found themselves outside of a
21 chain link fence at night. Not a special fence, the kind you
22 might find around a house or a tennis court, but it was a
23 fence around the heart of the American nuclear weapons
24 production complex where military grade uranium is kept. The
25 Fort Knox of uranium, you may hear it called throughout this
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1 trial.
2 They took bolt cutters and cut a slit in it and came
3 through, and they were inside. They were inside the Fort Knox
4 of uranium, something no one had anticipated. What did they
5 have on them? That's really informative, and you'll hear it
6 throughout the evidence.
7 What they had on them specifically was they had baby
8 bottles with the blood of a peace activist inside of it. They
9 had white roses. They had household hammers. On the hammers,
10 you'll see in the government's evidence, they had written
11 "Transform Now," "Repent," "God's Kingdom Is At Hand," "Swords
12 into Plowshares, Transform Now For Life For All."
13 You'll find they had Bibles, crime scene tape, bread with
14 crosses, cucumber seeds. No dynamite, no machine guns. They
15 didn't have blackened face paint, none of the tools that you
16 would anticipate from somebody coming in to interfere with
17 national defense.
18 In front of them was a hillside, a slope, wooded slope.
19 You see, Y-12 is down in a valley. So they began going up the
20 slope, up the hillside. They started, though they had a
21 little bit of difficulty. For, you see, Sister Rice is in
22 fairly good shape, but she is 82 years old. She's no spring
23 chicken. So Mr. Obed went first, and they had to help her
24 over the first hillside, and they began making their way up
25 the hill through the wooded lot.
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1 And they got to the top. What did they see beneath them?
2 Well, basically, what you'll see throughout the evidence, it
3 looks like a concrete parking lot with a huge building and
4 three fences between them and the building. No cars, no
5 traffic.
6 They come down the hill, and in front of them are
7 basically they're called Allen blocks. You may see them on a
8 highway. They're thick like those big square concrete blocks,
9 and then there's a fence, the first fence. While Sister Rice
10 and Mr. Obed try to open that fence, Mr. Walli has some time.
11 So what does Mr. Walli do? He puts a banner up. He puts
12 a banner up that you'll see. It's of a blackened nuclear
13 weapon going into flames, and it says "Never Again." He still
14 has time. He's in the Fort Knox of uranium, but he has more
15 time. So he puts "Swords Into Plowshares, Spears Into Pruning
16 Hooks, Isaiah." Still, no one's there. He has time to take
17 one of the baby bottles to put some blood out from a peace
18 activist. Still, no one is there.
19 By this time, the fence has been opened so they go
20 through that fence. They go through the second fence. They
21 go through the third fence, and they're in the lethal zone.
22 They're right where the facility is, inside, where military
23 grade uranium is kept.
24 And what you'll find informative is what they did and
25 what they did not do. You'll hear no evidence that they tried
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1 to blow a hole in the side of the building. You'll hear no
2 evidence that they even tried to get in or to the guts of the
3 nuclear weapon, have it ripped out.
4 What they did was they took a household hammer, and they
5 went up to the side and tapped on the side. They had time.
6 They're in the Fort Knox of uranium. Still, no one is there.
7 So they began putting Biblical graffiti on the side of the
8 building. What did they put? "Woe To an Empire of Blood."
9 "The Fruit of Justice is Peace." "Work For Peace, Not War."
10 "Plowshares Pleases Isaiah."
11 Still, here in the heart of the American nuclear weapons
12 production complex, nobody's there. They put up crime scene
13 tape. No one comes.
14 Finally, Officer Garland shows up. And this will be
15 informative as well. What do these three do when an officer
16 shows up? Do they run? No. Do they resist? No. Do they
17 pull out weapons? No. They have no weapons.
18 Instead, you will see with your own eyes, from the grainy
19 black and white footage, Sister Rice bowing to the officer
20 repeatedly. Then what do they do? They light white candles
21 and they begin singing.
22 | I'm going to lay down my sword and shield, down by the
23 riverside, down by the riverside |
24 They began singing. They sing also "This Little Light of
25 Mine" and "Peace is Flowing Like a River." Remember, this is
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1 where lethal force is authorized. Officer Garland is
2 authorized, if necessary, if he believes national defense is
3 at risk, to use deadly force.
4 What are you going to see him do? He's not even going to
5 pull his gun out. He's going to talk to them. They're not
6 going to resist. They're going to sing until he asks them to
7 stop singing, until the second officer shows up and has them
8 sit down, lay down on the ground, which they do. They never
9 resist.
10 What does the heart of the American nuclear weapons
11 production complex, Y-12, with military grade uranium, and the
12 Tennessee Volunteers football team have in common? Neither
13 can keep an 82-year-old nun from penetrating its defenses.
14 Truthfully, through, if the Tennessee defensive line
15 plays like they did last year, I think they could stop an
16 82-year-old nun.
17 Which brings me to my next point. What happened
18 afterward? There were Congressional hearings afterward. They
19 did shut down the facility briefly. Nobody foresaw that an
20 82-year-old nun was going to be able to get into the heart of
21 the American nuclear weapons production complex. Someone lost
22 their job as a result.
23 When you make your decision about evaluating whether or
24 not these are dangerous people that were trying to get in and
25 interfere with national defense or if they were symbolic
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1 protesters, you can make your decision based on this evidence.
2 What was there, what was not. What they did, what they did
3 not.
4 Finally, I want to leave you with this statement that
5 they wrote and brought in with them that will be entered into
6 evidence before, without any hindsight.
7 "A statement for the Y-12 facility. Come, let us go to
8 the mountain of God, to the house where God lives, that God
9 may teach us God's ways, that we may walk in God's paths. For
10 God will bring justice among nations and bring peace between
11 many peoples. They will hammer their swords into plowshares
12 and their spears into pruning hooks. Nations will not lift
13 swords against nations. No longer will they learn to make
14 war. Come, let us walk in the light of God."
15 And then the statement. "Brothers and sisters, powers
16 that be, we come to you today as friends in love. We, like
17 many of you, are people of faith inspired by many who have
18 gone before us. People like the prophets, Isaiah and Micah,
19 Jesus and Gandhi and the countless who call us to, quote, beat
20 swords into plowshares. May we now transform weapons into
21 real, life-giving alternatives, to build true peace.
22 "We come to the Y-12 facility because our very humanity
23 rejects the designs of nuclearism, empire and war. Our faith
24 in love and nonviolence encourages us to believe that our
25 activity here is necessary; that we come to invite
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1 transformation, undo the past and present work of Y-12; disarm
2 and end any further efforts to increase the Y-12 capacity for
3 an economy and social structure based on war-making and
4 empire-building.
5 "A loving and compassionate Creator invites us to take
6 urgent and decisive steps to transform the U.S. empire and
7 this facility into life-giving alternatives which resolve real
8 problems of poverty and environmental degradation for all.
9 "We begin by preparing our minds and hearts for this
10 transformation. And so we bring gifts to symbolize this
11 transformation, instruments to serve life, peace and harmony,
12 truth and healing to this nuclear plant and elsewhere.
13 "We bring life symbols: Blood, for healing and pouring
14 out our lives in service and love. Our very humanity depends
15 on lives given, not taken. Blood also reminds us of the
16 horrific spilling of blood by nuclear weapons.
17 "Our hammers, to begin the transforming work of
18 deconstructing war machines, creating new jobs which address
19 real problems, eliminate poverty, heal and foster the fullness
20 of life.
21 "We bring our truth symbols: Candles, for light
22 transforms fear and secrecy into authentic security. Flowers,
23 the white rose of forgiveness, acceptance and friendship, of
24 genuine reconciliation. The crime tape and an indictment,
25 which points out the truth and ends lies which have blinded
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1 and dulled the very conscience of nations and serve the
2 interests of justice for healing global relationships. A
3 Bible, to remind ourselves to become sources of wisdom and to
4 inspire our acts of conscience as we carry on.
5 "Lastly, we bring food, symbolized by this bread,
6 strengthening us as we build this new world where people do
7 not feel compelled to build nuclear weapons in order to feed
8 their families. May we break and share this bread together in
9 the joy and genuine friendship as we work together, empowered
10 by our Creating God. To transform now."
11 Ladies and gentlemen, common sense does not leave at the
12 courtroom door. Thank you.
13 THE COURT: Thank you, Mr. Irwin.
14 Mr. Boertje-Obed.
15 DEFENDANT BOERTJE-OBED: Greetings. I'll try to be
16 brief. I want to give an outline of our view of the case.
17 And I believe each of us, Michael, Megan and I, will try to
18 take the stand and say something about our life experiences,
19 what led us to do those actions on that day. And we will also
20 try to explain -- right now, I guess I will explain a little
21 bit about Michael and myself, how we are similar, and then
22 I'll give a little introduction about Megan.
23 So Michael and I are both veterans. We both served in
24 the U.S. Army, and we have both served afterwards in Catholic
25 Worker communities. In these communities, there's a movement
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1 across the country to live in a house and provide hospitality
2 to people in need. We provide a place to stay, food, clothing
3 which is safe and secure.
4 And I think this relates to one of the issues in this
5 trial of what is real security or what is false security. I
6 believe our lives, before the action and during the action,
7 demonstrate what is real security, what is real defense.
8 We believe that the work at Y-12 contributes to false
9 security. Nuclear weapons are an illusion of security. They
10 are designed to terrorize and kill civilians.
11 Megan -- Megan is an educator and an organizer. She's a
12 Catholic sister. She spent -- I've known her for more than
13 ten years. She spent many years at the Nevada test site where
14 nuclear weapons are exploded underground now, and she has
15 studied the issues intensely.
16 She knows the numbers, she knows how much money has gone
17 into it. She has educated us continually, and she's an
18 organizer. She is in contact with many people around the
19 country and the world, and she had spent many years in Africa
20 as a teacher. And that is where I believe she was deeply
21 touched by the effects of the U.S. as an empire.
22 As all three of us know, our country has an immense
23 influence around the world. And therefore, our message is not
24 just to transform nuclear weapons. We feel that's too small a
25 task. Our message, our mission also is to give the message we
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 33 of 315 PageID #: 1563 34
1 need to transform our U.S. role in the world. We need to be
2 about justice among the nations, not oppression.
3 Then briefly, there are two documents -- Chris referred
4 to one; he read from one. Two documents that will be entered
5 as evidence, we hope, that we hope you will pay special
6 attention to. We spent a lot of time, consensus, writing
7 these documents. We brought them with us. We gave them to
8 the guards.
9 One is our group statement. It explains a lot about our
10 intent. The other one is called Oak Ridge Y-12 Indicted For
11 War Crimes. So we believe these are part of our defense and
12 that if you read them and understand them, you will find us
13 not guilty.
14 I will close with a statement that Michael Walli quotes
15 from time to time. Once you get to know Michael, he's an
16 authority on saints and Bible passages. There's one Bible
17 passage for some time he's been quoting, and we believe it is
18 addressed for the judge, the prosecutors, and you as members
19 of the jury, that you are the conscience of the community.
20 And so his statement that I would like to leave you with,
21 to think about throughout this trial is "If today you hear
22 God's voice, harden not your hearts."
23 THE COURT: Thank you, Mr. Boertje-Obed.
24 Mr. Lloyd?
25 MR. LLOYD: Thank you, Your Honor. Ladies and
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1 gentlemen, don't look so glum. Keep a sense of humor. I find
2 it useful in everything.
3 To reintroduce myself, I am Francis Lloyd. I practice in
4 Knox County, Tennessee. I have the privilege of representing
5 Sister Megan Rice, one of the defendants here today. One of
6 the advantages of being the last to speak is everybody's
7 covered a whole lot of what I would say if I weren't the last
8 to speak, and I'm not going to go through that again.
9 I do want to state something at the outset that I hope
10 that those of you who have not served as jurors before will
11 understand. All of us on both sides of the aisle in this case
12 have heard every lawyer joke that is known, I'm sure. And one
13 that we hear a lot is the first thing we do, let's kill all
14 the lawyers. Attributed to Shakespeare, but it's also in
15 Shakespeare's play, the second play of Henry VI, and it's a
16 proposition spoken by a villain, not a good character.
17 Let me quote to you instead, quoting that character who
18 was setting about to overthrow the government, let me quote
19 instead from another Shakespeare play, The Taming of the
20 Shrew. And do as adversaries do in law, strive mightily, but
21 eat and drink as friends.
22 I tell you that because all of us on both sides of the
23 aisle are devoted to the proposition that an adversary trial
24 like this one is the best means for dispensing justice. I
25 quote it also to you to tell you that if, at any point, you
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 35 of 315 PageID #: 1565 36
1 see me cheerfully talking to either of the attorneys for the
2 government, it's because we respect each other and enjoy what
3 we do.
4 Doesn't mean I agree with them about everything.
5 Certainly not in this case. But I want you to know that we
6 are dedicated to that sort of relationship, even as we contend
7 with each other. The alternative is violence, and this is the
8 place where disputes are settled without violence.
9 Now, you've already heard from both sides of the aisle so
10 I won't repeat, but there's going to be a whole lot of
11 evidence, and a lot of it not contested.
12 Did three people go through an outside fence carrying a
13 lot of the items you've heard described and that you will see?
14 Yes.
15 Did they cross over a ridge and cross three more fences?
16 Yes.
17 Did they then put up banners, paint what I -- I hesitate
18 to call it because I've never heard it the term before, but
19 they painted what you might call Biblical graffiti? Yes.
20 Was there blood? Yes. Blood just on the wall, and
21 you'll see a picture of it.
22 Let me, instead of belaboring that, because you're going
23 to see all that evidence, let me instead tell you a little
24 about my client, Sister Megan, and then come back to the
25 incident that this case is about.
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1 You will learn that Sister Megan Rice is in her eighties.
2 She was born in Manhattan. Her father was an obstetrician,
3 her mother a university professor. She was raised in a
4 Catholic household.
5 At an early age, she was troubled by the fact, even as a
6 child, that a neighbor of her parents, who it turns out was
7 working on something related to the Manhattan Project, could
8 not even discuss at his home with his own wife what he did.
9 That concerned her as a child.
10 Later, she learned from an uncle who actually, in
11 military service, had been posted to Nagasaki after the
12 dropping of that bomb, what that officer saw while there.
13 Over time, she determined to become a member of the
14 sisterhood and is to this day. She had training in science.
15 That's what she taught and, in the course of that training,
16 learned about the handling of and the dangers associated with
17 radiation.
18 She went to Africa to live and teach among the poor. And
19 you will hear from her that she spent a good many years there
20 teaching children, also actually participating physically in
21 the building of concrete block buildings for schools.
22 Upon her return to the United States, she became
23 interested in this issue of the global danger of nuclear
24 weapons, and she did some work and some study concerning the
25 Nevada test site.
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1 With respect to this particular incident, I believe the
2 evidence will show that not only did these three draw up their
3 manifesto that you've heard from my colleague, Mr. Irwin,
4 before the incident, stating what their intention was, but
5 once they began this incident that night, they were surprised.
6 They were surprised that they got as far as they did beyond
7 the first fence, surprised they got through three more fences,
8 surprised to be standing beside the Highly Enriched Uranium
9 Manufacturing Facility -- we'll all be saying HEUMF throughout
10 this trial. Surprised that they were standing beside that
11 building and not seeing a soul.
12 Sister Megan will tell you that she was surprised to
13 hear, in the course of her arrest, detention and arrest, that
14 someone in security was calling for a shutdown.
15 Finally, ladies and gentlemen, you will be given evidence
16 concerning what I think Mr. Irwin classified or characterized
17 appropriately as symbolic acts offering bread, lighting
18 candles, tapping with hammers on the side of the building,
19 putting blood on the building, hanging banners, spray painting
20 the Biblical graffiti. All symbolic acts.
21 In this case, as in all cases, I ask you to keep in mind
22 that not only is it important to hear and see the evidence
23 presented, but keep in mind throughout the trial what you're
24 not going to see and not going to hear.
25 You're not going to hear, I predict, that there's any
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 38 of 315 PageID #: 1568 39
1 missile on the installation of Y-12 to launch. You're not
2 going to hear that these folks ever encountered, before they
3 got to the HEUMF, a tank, a missile, anything like that.
4 You're not going to hear that anybody put a hole in the
5 HEUMF. You're not going to hear that what is kept in the
6 HEUMF was even touched, much less tampered with.
7 You are going to hear, I believe, according to the
8 evidence as I know it, that when security appeared, someone in
9 security said, oh, we have peace protesters.
10 They, I submit, came in peace. And because the evidence
11 will show that that is what they did, that is how they came, I
12 will return to this podium at the end of the case and argue
13 for verdicts in favor of my client and her co-defendants.
14 Thanks for your attention.
15 THE COURT: Thank you, Mr. Lloyd.
16 Mr. Theodore, please call your first witness.
17 MR. THEODORE: Yes, sir. Your Honor, we call Steve
18 Erhart to the stand.
19 STEVEN C. ERHART, GOVERNMENT'S WITNESS, SWORN
20 DEPUTY CLERK: Please take a seat. Speak into the
21 microphone, state and spell your name for the record, please.
22 THE WITNESS: My name is Steven C. Erhart,
23 S-t-e-v-e-n, middle initial C, Erhart, E-r-h-a-r-t.
24 THE COURT: You may proceed.
25
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 39 of 315 PageID #: 1569 ERHART - Direct 40
1 DIRECT EXAMINATION
2 BY MS. KIRBY:
3 Q. Good morning, Mr. Erhart. How are you today?
4 A. Good morning. Well, thanks.
5 Q. Could you please describe to the jury where you work and
6 what your title is and your duties.
7 A. Okay. I am the NNSA, that's National Nuclear Security
8 Administration's manager for the -- we call it the NNSA's
9 Production Office. I work here in Oak Ridge. I have -- I am
10 the lead Fed to oversee operations at Y-12 and also at Pantex
11 plant in Amarillo, Texas. We manage the contract, administer
12 the contract, as well as oversee operations at both sites.
13 Q. What is your background?
14 A. I have an electrical engineering degree, and I have
15 experience right out of college in nuclear propulsion at the
16 nuclear shipyards. I worked at Portsmouth Naval Shipyard as a
17 test engineer for eight years. From there, I went to
18 Albuquerque operations office for the Department of Energy,
19 where I worked in nuclear weapon programs management as well
20 as safety analysis division. I ran the division in
21 Albuquerque. I also worked in -- as the deputy division
22 manager for the Nuclear Surety Division in Albuquerque.
23 After that, I -- that was seven years. After that, I
24 went to the Pantex plant, where I was selected as the senior
25 technical advisor at the Pantex plant for the manager there.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 40 of 315 PageID #: 1570 ERHART - Direct 41
1 Worked in that job for about six and a half years and then was
2 promoted to the manager of the Pantex site office in Amarillo,
3 Texas.
4 From there, I was selected as the new NNSA's production
5 office manager in February and stood up the NPO office in
6 June; June 18th of 2012. And then came on station here,
7 directed to change station to Oak Ridge, Tennessee, and
8 started here on July 18th.
9 Q. Of 2012?
10 A. Yes, ma'am.
11 Q. You referenced the National Nuclear Security Agency at
12 one time, the NNSA. What is it and how does it relate to the
13 Department of Energy?
14 A. The NNSA is a semi-autonomous organization within the
15 Department of Energy. Its missions include the management of
16 nuclear weapon programs, nonproliferation activities, and it
17 is, like the name implies, it's semi-autonomous in that it has
18 autonomy in the operations within those functional areas but
19 still resides within the department.
20 Q. Please look at what's been marked as Government Exhibit
21 Number 1. Do you recognize what's depicted in this exhibit?
22 A. Yes, I do.
23 Q. How do you recognize it?
24 A. That is the Y-12 security complex.
25 MR. LLOYD: Your Honor, I'm sorry. It's not on our
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 41 of 315 PageID #: 1571 ERHART - Direct 42
1 screen.
2 THE COURT: It won't be on the large screen until
3 it's published to the jury. Mr. Lloyd, somehow your screen
4 got wired to the jury too. If you want to see theirs, you're
5 welcome to get up and walk around.
6 MR. LLOYD: Thank you, Your Honor.
7 THE COURT: Mr. Boertje-Obed, you can do the same, if
8 you like. We'll get it fixed at the break. You may proceed.
9 MS. KIRBY: Your Honor, I would like to put on the
10 record that the parties have stipulated to the foundation of
11 these photos.
12 THE COURT: Is there any objection to it be admitted?
13 MR. LLOYD: No, Your Honor.
14 MR. IRWIN: No objection, Your Honor.
15 THE COURT: It's admitted, Exhibit 1. It can be
16 published.
17 MS. KIRBY: Thank you, Your Honor.
18 THE COURT: Mr. Lloyd, it will now be on yours.
19 BY MS. KIRBY:
20 Q. Also look at -- you stated this was the Y-12 National
21 Security Complex?
22 A. Yes.
23 Q. Okay. Would you please look at what has been marked as
24 Government's Exhibit Number 4?
25 THE COURT: Any objection to this one?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 42 of 315 PageID #: 1572 ERHART - Direct 43
1 MR. IRWIN: No, Your Honor.
2 THE COURT: It's admitted.
3 MS. KIRBY: Thank you, Your Honor.
4 THE COURT: It can be published.
5 BY MS. KIRBY:
6 Q. Mr. Erhart, do you recognize this photo?
7 A. I do.
8 Q. Could you describe this one to the jury as well?
9 A. This is a photograph of the sign as you come in the east
10 entry point of the Y-12 National Security Complex.
11 Q. Can you go into generally the history of Y-12?
12 A. Yes. Y-12 was -- came into existence during the
13 Manhattan Project. It was one of several sites. Y-12 was
14 built and started operations in less than a year. I believe
15 it was eight months from the time they selected the site to
16 actually starting the operations.
17 The operations of Y-12, the mission of Y-12 at the time
18 was to separate isotopes of uranium. Naturally occurring
19 uranium only contains about 0.7 percent Uranium-235, and
20 Uranium-235 was the fissionable isotope of uranium that was
21 necessary to make the material for the first atomic weapon.
22 So the Manhattan Project was a secret project. The Y-12
23 plant was put together for that purpose, using electromagnetic
24 separation technique to generate enough uranium for the first
25 atomic weapon, the Little Boy weapon. The material was
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1 separated in the calutron process. The material was secretly
2 transported to Los Alamos National Laboratories, where it was
3 assembled into the weapon.
4 So that was the initial mission for Y-12 national back to
5 that time, the Y-12 plant.
6 Since then, it's taken on more missions. The Y-12 plant
7 is the place where the secondary of the nuclear weapon, and I
8 can get into a little of that, if you'd like. The secondary
9 is a main component of the nuclear weapon, and it has been and
10 still is produced. The components, as well as the final
11 assembly of that portion is the purview of Y-12.
12 Q. And also, in the history, has Y-12 also engaged in some
13 other historical activities that were unrelated to a nuclear
14 weapon, per se? Like with regard to the precision machining
15 that goes on at Y-12.
16 A. Yes. The techniques they use for manufacturing uranium
17 and other components within the secondary are very advanced,
18 have always been cutting edge. The techniques and the
19 know-how, the expertise at Y-12 is world renowned because
20 you're machining not just metals but different materials, and
21 it has to be -- in nuclear weapons has to be very precise.
22 So Y-12 from time to time is called on to do special
23 machining projects. A couple of note, they built, for
24 instance, moon boxes for the space program, because they could
25 build boxes that would remain airtight, a special material for
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1 transporting, I guess, moon rocks back to the earth, as an
2 example.
3 Q. How many times has the United States deployed a nuclear
4 weapon?
5 A. Well, the word deploy, in my mind, indicates putting
6 weapons on delivery systems and making them available to the
7 Department of Defense. So currently, we do deploy nuclear
8 weapons. Is that the intent of your question?
9 Q. Let me rephrase. How many times has the United States
10 actually deployed and then activated a nuclear weapon to
11 create the intent of an explosion of a nuclear weapon?
12 A. Okay. So I assume that is as a defense action so two
13 uses of nuclear weapons. I mentioned Little Boy was built.
14 It's a uranium weapon, the materials provided by Y-12. That
15 weapon was used in war, in Hiroshima, over the city of
16 Hiroshima. The plutonium weapon, plutonium implosion weapon,
17 known as Fat Man, was later dropped, deployed and used in war
18 to end the Second World War in Nagasaki. Those are the two
19 wartime uses of nuclear weapons.
20 Q. In the United States, where is the primary site for
21 enriched uranium processing and storage today?
22 A. That would be Y-12.
23 Q. Could you describe what is meant by nuclear deterrent?
24 A. Yeah. The nuclear deterrent is really the sole purpose
25 of having the nuclear weapons. Like I mentioned, the only two
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1 times they were actually used were to end a global war.
2 After that, the thermonuclear weapons in the stockpiles,
3 the United States serves the purpose of providing assurance or
4 deterrence, if you look at it that way, to our enemies or
5 those that would cause harm to the United States or its
6 allies. So whereas the use of nuclear weapons is not
7 something we want to do, having a deterrent in that global war
8 or an attack on the United States would make an enemy rethink
9 that, given the fact of the devastating power of a nuclear
10 device.
11 The word deterrent implies that you -- it's really in the
12 minds of those that you wish to deter. So a deterrent, in my
13 mind, includes not just the weapon and the surety that the
14 weapon will never work unless it's called upon to work; in
15 other words, no accidents, but will always work reliably if
16 needed. But deterrence goes beyond that in that the United
17 States needs to maintain its infrastructure, its aptitude, its
18 expertise, availability of humans to continue to keep the
19 stockpile strong.
20 And so the intent of the deterrent is that all our
21 allies, all our enemies, and all our citizens understand that
22 the, you know, nuclear weapons are here and that they will
23 work if they ever need to.
24 Q. Can you describe the two-stage nuclear weapons function;
25 the primary and the secondary, how those work, generally?
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1 A. Sure. So she mentions there's two phases or two parts to
2 a modern-day nuclear weapon. The ones I described earlier,
3 the Little Boy and Fat Man, were single-stage weapons in that
4 they basically had the function of one explosion, and you got
5 the energy out of that explosion.
6 And a two-stage thermonuclear weapon or hydrogen bomb, if
7 you want to use that, is the modern weapon. It's broken into
8 two main pieces that provide the energy.
9 The first is the primary. Primary is a sub -- a sub-part
10 of a nuclear weapon, and it's built at Pantex plant. So its
11 plutonium core and high explosives creates a nuclear
12 detonation, but of a fairly small magnitude, in order to --
13 and it is used to drive the secondary.
14 The secondary is -- components that make up the secondary
15 provide the explosive power of a modern-day device. How it
16 works is the primary generates -- on that reaction, that
17 nuclear detonation, generates a lot of x-ray energy, a lot of
18 heat, a lot of neutrons.
19 The x-ray energy actually compresses the secondary,
20 forces the elements in the secondary to come together. One of
21 the parts that is made at Y-12 is a part that holds hydrogen.
22 The explosive energy releases the hydrogen, we have deuterium
23 and tritium. The deuterium and tritium reaction, under high
24 heat, about a hundred million kelvin, will actually create
25 fusion. So you'll also hear it's the fusion part of a nuclear
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1 weapon that is provided by the secondary.
2 That fusion generates a lot of energy and a lot more
3 neutrons. The neutrons that are generated there are very
4 energetic, and they can continue to cause fission within the
5 rest of the uranium that's in the secondary.
6 So all that happens within much less than a microsecond.
7 So we have all of this physics occurring within that. And if
8 you think about the energy that's developed, what we're --
9 what the secondary is doing is exactly what the sun is doing
10 when it takes hydrogen and turns it into helium. And that
11 generates a lot of heat, just as the sun generates heat. That
12 would be the secondary of a nuclear weapon.
13 Q. Does Y-12 still produce the secondaries today?
14 A. Yes, ma'am.
15 Q. What is Y-12's mission to date?
16 A. Well, primarily, Y-12, like I said, was designed and
17 built for the purpose of -- it's a key part of the nuclear
18 weapons enterprise, of nuclear weapons complex. It provides,
19 and still is today, its primary mission, over 65 percent of
20 the funding is defense programs funding.
21 So its primary mission, still today, is to provide the --
22 build the components and complete the manufacture of the
23 secondary for the purposes of maintaining a strong nuclear
24 deterrent.
25 As some other missions that go along with that, for
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1 example, we've had a lot of years of declining stockpiles. So
2 the stockpile is actually at its lowest level in -- well,
3 since right at the beginning of the buildup of the nuclear
4 weapons. So they're about 80 percent down from our highs
5 in -- when we had the largest stockpile. So those
6 dismantlement operations take place at Y-12.
7 Pantex dismantles the nuclear weapon into its basic
8 components. One of those components is a secondary, which
9 comes to Y-12. All the parts are taken out. All the material
10 is stored, and some of it is reused for other purposes;
11 sometimes back into nuclear weapons components, sometimes
12 blended down into other forms of uranium for other uses.
13 Mentioned a little bit about the other uses. So I
14 mentioned -- primarily, I want to leave the jury with the
15 point that the primary mission of Y-12 has always been and
16 currently is to support the nuclear deterrent national
17 security.
18 The other functions that we provide is, depending on how
19 you look at it, dismantlement is a nonproliferation activity.
20 It makes the material unavailable for -- not for use in
21 nuclear weapons. Once that we have determined a weapon is
22 retired from the stockpile, its components cannot be used
23 again because of what we do to them.
24 Also, we accept material -- what Y-12 does is they are
25 the Uranium Center of Excellence in our country, and we also,
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1 like I mentioned, our security, this is what we do is we store
2 highly enriched uranium.
3 So we will take, through agreements with other countries,
4 through our nonproliferation arm of the NNSA, we'll accept
5 material from countries that don't want it anymore, can't
6 provide the security for it. A lot of the Cold War, you know,
7 some of the former Soviet Union materials have been taken by
8 the United States with an agreement with Russia to put it at a
9 place where it's more safe and not available to rogue states.
10 So a number of countries have -- we've taken uranium off
11 of their hands. We have -- a lot of it is to take uranium
12 from reactors that no longer want to use such a high assay
13 value or a high enrichment in their reactors.
14 One of the byproducts of burning highly enriched uranium
15 in reactors is plutonium. Like I mentioned before, plutonium
16 can be used to make nuclear weapons.
17 So now, in modern days, the desire is to have a lot lower
18 enrichment levels for nuclear fuels. So for peaceful uses,
19 for nuclear energy, the desire on a global scale really is to
20 take the highly enriched uranium and create much lower level
21 enrichment levels, and then Y-12 has a key role in that.
22 We also provide nuclear -- we provide uranium to the --
23 for use in fuel for nuclear-powered submarines. Like I said,
24 that's where I started my career. They -- we have a 40-year
25 contract, essentially, with the Department of Defense to
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1 provide enriched uranium to another plant that will make it
2 into nuclear fuel to power the nuclear submarine fleet.
3 We have other things we do. And as the name implies,
4 it's work for others, so it's not defense program related.
5 It's a small part of the budget, about three percent of the
6 budget goes to other things like helping people detect nuclear
7 material worldwide so that -- and training them on that
8 detection. So we have a group of folks at Y-12 that conduct
9 that training.
10 We also use -- we also teach them how to monitor and use
11 monitoring equipment, as well as we have a cutting edge
12 facility where we are learning better how to detect different
13 types of materials, especially if someone was trying to shield
14 some of that material, to sneak it in, for instance, to other
15 places it shouldn't be. We have a detection and monitoring
16 campaign that is learning more about that and then teaching
17 folks how to combat -- detect and combat proliferation in the
18 world.
19 Q. With regard to refurbishment portion of the mission, is
20 Y-12 charged with certifying our nuclear arsenal stockpile,
21 and how does that work?
22 A. Right. So I'll talk a little bit about --
23 MR. IRWIN: Your Honor --
24 THE COURT: Hold on a second, sir.
25 MR. IRWIN: 611(c).
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1 THE COURT: Overruled, but don't lead the witness,
2 please. Go ahead.
3 MS. KIRBY: Thank you, Your Honor.
4 THE COURT: You may answer the question, if you
5 recall it.
6 THE WITNESS: I believe I do. Certification of
7 nuclear weapons.
8 As I mentioned before, the nuclear deterrent has to
9 remain strong on a yearly basis. The lab directors and the
10 laboratories that are the design agents are the same ones that
11 have been around for a long time. We mentioned Los Alamos
12 National Lab was the first laboratory. We now have Livermore
13 National Lab and Sandia National Labs. Those three labs, each
14 year, has to prepare separate memos to the president of the
15 United States certifying the existing stockpile. So that's an
16 annual thing.
17 As part of that, a lot of work goes on across the complex
18 to perform surveillance on a yearly basis. So we take apart a
19 lot of active nuclear weapons. So they come back to Pantex,
20 they're disassembled into its various parts. Pantex built the
21 primary so they take the primary part all the way apart and
22 they run a lot of tests on looking for aging, things that
23 might be going wrong with the high explosives or the
24 plutonium.
25 At Y-12, we do the same thing. We take the entire
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1 secondary apart, measure it. They do nondestructive testing.
2 They do different techniques to determine if there's anything
3 happening within the secondary that might prevent it from
4 functioning as appropriate.
5 All that information is sent to those National
6 Laboratories to prepare that stockpile assessment or
7 certification on a yearly basis to the president.
8 The information gleaned from that process can also find
9 issues with the stockpile. So in addition to verifying that
10 the deterrent remains strong, it may find something that
11 requires work on the stockpile. So that's where we get into
12 fixing problems, essentially. So where we'll have to sustain
13 the stockpile, we may have to extend the life of a nuclear
14 weapon. We don't build new nuclear weapons, but we may find
15 something going on with a nuclear weapon, or we may want to
16 make something a lot safer than it was before, and so we'll go
17 into what's called a life extension program.
18 Again, all the plants I mentioned and some others are
19 engaged in that effort. So we surveil the stockpile, provide
20 information to the National Laboratories. Y-12 is a key part
21 of providing that -- the secondary information back to the
22 National Labs, and we're also engaged in life extension
23 programs because of aging characteristics, aging problems
24 found during that surveillance.
25 The active one that we're working right now is the W76
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1 Mod 1, a Navy system, and that's being produced currently at
2 Y-12.
3 BY MS. KIRBY:
4 Q. Now, what exactly is Y-12 certifying to the president
5 when you say that, to certify the stockpile?
6 A. So Y-12's job is to take -- in that regard is to take the
7 secondary apart safely, do the tests that we're directed by
8 the National Laboratories, and provide the information back to
9 the National Laboratories. Y-12 and other plants provide that
10 information. It's up to the National Laboratories to analyze
11 it, make sense of it, and create the memorandum to the
12 president which certifies the stockpile.
13 So Y-12 plays an active role in the certification
14 stockpile through the actions I just described. The National
15 Laboratory directors are the ones who actually certify the
16 stockpile to the president.
17 Q. To clarify my question, what are they certifying to the
18 president, basically?
19 A. Well, the essence is it gives an overall report on the
20 reliability of the weapon to, again, to provide that deterrent
21 that it will work if called upon.
22 Q. Is Y-12 considered a nuclear weapons production facility?
23 A. Yes.
24 Q. Is Y-12 involved in the United States national defense?
25 A. Yes.
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1 Q. Can you generally describe how?
2 A. A couple ways. I think I mentioned it's a -- well, it's
3 a one-of-a-kind, like Pantex, one-of-a-kind production
4 facility. So if we didn't have what Y-12 does for the
5 deterrent, we wouldn't have a deterrent. So we need the
6 secondary to -- because of its key role in the weapon itself.
7 So without Y-12, we don't have a nuclear weapon. We also -- I
8 consider it a national security facility primarily for that
9 reason.
10 The way that NNSA is funded is through an account called
11 National Defense. So the way that the United States budget
12 works, the federal budget, is there's 20 budget functions at
13 the top level. And the 050 budget account or budget function
14 is labeled National Defense. The monies in that budget are
15 split off between the various agencies below it which
16 participate in national defense. NNSA's budget for defense
17 programs I just discussed is a part of the 050 budget.
18 As well, other things in that budget are Department of
19 Defense; all their payroll, all the facilities and military
20 tanks and guns and things as well. So it's one big account.
21 So from that aspect, I think the federal government recognizes
22 that nuclear weapons operations are definitely part of
23 national defense.
24 Q. As a nuclear weapons production facility, is Y-12's
25 mission -- how important is the mission at Y-12 considered to
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1 be to our national defense?
2 A. I would say pretty important because, again, without
3 Y-12, you don't have a secondary and, therefore, you don't
4 have a nuclear weapon. And without the nuclear weapon
5 deterrent being strong, you lessen our national security.
6 Q. Is Y-12 considered a unique facility?
7 A. Yes. It's one of a kind, in that what I didn't get into
8 is the -- talk a little bit about the various missions, but
9 Y-12 does things that no other place in the country is doing,
10 can do, and that's basically everything with uranium, from
11 making metal, from oxide, from casting highly enriched uranium
12 into shapes, to then machining the highly enriched uranium
13 into further shapes, all of that, and then taking in highly
14 enriched uranium and reprocessing it and then storing it in
15 the way that we do. I think those are unique functions within
16 our country.
17 Q. Is Y-12 involved in the manufacture of some portion of
18 every weapon in the United States stockpile based on the fact
19 that Y-12 is the only place that can do the secondaries?
20 MR. IRWIN: Your Honor, I'd renew my objection.
21 THE COURT: Sustained. It's leading. Don't answer
22 it. Don't ask leading questions.
23 BY MS. KIRBY:
24 Q. Who owns the Y-12 National Security Complex property?
25 A. Property is owned by the United States government.
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1 Q. What agency, I guess, maintains or controls the whole
2 entire reservation there at Oak Ridge?
3 A. The Oak Ridge reservation is DOE property. The Y-12
4 complex, once the NNSA -- it was through the National Defense
5 Authorization Act of 2000 -- was created, when the NNSA was
6 created, we sectioned off the Y-12 property to be managed by
7 the NNSA.
8 Q. How was Y-12 acquired by the federal government, Y-12 or
9 the reservation?
10 A. So back in the Manhattan Project days, and I know some of
11 the history because it's interesting, but not all of it. I
12 think there's a lot of people in this area that know a lot
13 more than I do about this. But I believe it was taken,
14 essentially, by the federal government through imminent
15 domain. I think a lot of folks were moved off of their
16 property for the purposes of building Y-12.
17 Q. And although the United States government actually owns
18 the property, are contractors used?
19 A. Okay. So the property's owned by the government. The
20 operations are performed on behalf of the government, for
21 government needs through the defense programs. But the
22 operations and the facilities are run by contractors.
23 So what we have at Y-12, and in large part across the
24 complex, is government-owned, contractor-operated facilities.
25 So whereas I am the -- I am responsible for the site
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 57 of 315 PageID #: 1587 ERHART - Direct 58
1 operations as the federal -- as an extension of the federal
2 government, the work at the site is done primarily by
3 contractors. So B&W Y-12 Limited Liability Corporation is the
4 current contractor that runs Y-12.
5 So we manage that contract from the federal side through
6 the contract, and we oversee the operations as well.
7 Q. Who is ultimately responsible, though, for operations at
8 Y-12?
9 A. Ultimate responsibility of the operation of Y-12 is
10 the -- on the federal government.
11 Q. Is Y-12 a secure facility?
12 A. Yes.
13 Q. Why?
14 A. Well, there's a lot of money devoted to the security. So
15 I mentioned 68 percent is defense programs. I believe 15 or
16 more percent goes to security. One reason it needs to be
17 secure, because of what we do there and what we store there.
18 This material is -- would be highly useful for rogue
19 nations, like I mentioned, or terrorists. So the security at
20 Y-12 needs to be very high.
21 Q. Is just any person permitted to enter the Y-12 National
22 Security Complex?
23 A. No.
24 Q. If a person wanted to visit Y-12, what would be the
25 procedure for actually being able to come on to the property?
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1 A. Well, you'd have to get approval. You'd have to --
2 depending on where you wanted to go on the property, you can
3 get -- we can get uncleared people as long as they have a
4 reason and a sponsor.
5 And there's a process to come on to the facility. There
6 are places within the facility they would not be able to go
7 without a clearance. We have a, kind of a layered security
8 strategy. So we like visitors, but we have areas that we need
9 to -- where the visitors can't go unless they have proper
10 training, proper clearance, et cetera. And those requirements
11 get more stringent and more controlled the closer you get to
12 the special nuclear material, which is uranium, enriched
13 uranium within our security complex.
14 Q. Are you familiar with the physical layout and legal
15 boundaries that mark Y-12's property?
16 A. Yes.
17 MS. KIRBY: Your Honor, if I may have one moment.
18 THE COURT: Yes. What is this now? Is it marked?
19 MS. KIRBY: This is Government Exhibit Number 46.
20 THE COURT: 46?
21 MS. KIRBY: Yes, Your Honor. I believe this is also
22 a stipulated --
23 THE COURT: No objection to it being admitted?
24 MR. IRWIN: No objection, Your Honor.
25 MR. LLOYD: No objection, Your Honor.
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1 THE COURT: Okay. It will be admitted.
2 MS. KIRBY: This needs to be handed to the witness.
3 THE COURT: It can be published. You said this is
4 46? Did I get that wrong?
5 MR. THEODORE: No, Your Honor.
6 MS. KIRBY: Your Honor, actually, no. We got the
7 next exhibit sticker on this. This should be Exhibit
8 Number 2.
9 THE COURT: Exhibit 2?
10 MS. KIRBY: Yes.
11 THE COURT: All right. Defense counsel, you don't
12 have any objection, correct?
13 MR. IRWIN: None, Your Honor.
14 MR. LLOYD: No objection.
15 THE COURT: Just because you might have thought it
16 was something else.
17 MR. LLOYD: No.
18 THE COURT: Great, thank you.
19 MS. KIRBY: Your Honor, it will be re-marked as
20 Exhibit Number 2.
21 THE COURT: Great. You may proceed.
22 MS. KIRBY: Thank you.
23 BY MS. KIRBY:
24 Q. Mr. Erhart, do you recognize what's been put up on the
25 monitor as Government Exhibit Number 2?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 60 of 315 PageID #: 1590 ERHART - Direct 61
1 A. Yes.
2 Q. Do you know who prepared this map? Was this prepared
3 by --
4 A. I can't see.
5 Q. -- your office?
6 A. It was prepared by the site. I can't see the markings on
7 who declassified it, if that's what you're asking.
8 MS. KIRBY: Actually, Your Honor, can I just hand
9 this up to the witness?
10 THE COURT: You may.
11 MS. KIRBY: Thank you.
12 A. Okay.
13 Q. Okay. Are you familiar with the physical layout there of
14 the Y-12 facility?
15 A. Yes.
16 Q. And is Government's Exhibit Number 2 a fair and accurate
17 representation of Y-12 as it was set out on July 28, 2012?
18 A. Yes, it's an accurate depiction.
19 MS. KIRBY: Your Honor, the government moves to admit
20 Exhibit Number 2.
21 THE COURT: It's already been admitted.
22 MS. KIRBY: Thank you.
23 BY MS. KIRBY:
24 Q. Using that diagram --
25 MS. KIRBY: Actually, Your Honor, may I approach the
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1 witness?
2 THE COURT: You may.
3 BY MS. KIRBY:
4 Q. So everyone can see what you're talking about, using the
5 diagram, can you describe the most secure part of the complex?
6 A. I think so. Since you took away my color, I can't -- so
7 I don't know if it comes through over the monitors, but the
8 most secure area would be marked in red. That would indicate
9 the boundary for the PIDAS, or the Perimeter Intrusion
10 Detection and Assessment System.
11 Q. Mr. Erhart, if you can see the line, you can touch the
12 screen with your finger and draw it on sort of like John
13 Madden can draw on the screen.
14 A. Wow, okay. So this. I can see this side of the line
15 that I marked, but I can't see exactly where it goes around
16 here. But this is the rough area. I'd have to look at the
17 other map to finish the drawing.
18 Q. I cleared that for you. Let's see if we can get a
19 different color on there so we can see it.
20 A. There you go.
21 Q. Is that a little bit better?
22 A. Yes. So it's the darker outline. So go around like
23 this.
24 THE COURT: So the premarked red outline, just for
25 the record?
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1 THE WITNESS: Yes, Your Honor.
2 THE COURT: Okay.
3 BY MS. KIRBY:
4 Q. Okay. So you say this is the most protected area. Can
5 you kind of just describe that area, what it's called?
6 A. Okay. So the -- that area is called the protected area.
7 And it's surrounded by the PIDAS system, which is the
8 Perimeter Intrusion Detection and Assessment System, which is
9 a series of fences, sensors and alarms for the purpose of
10 detecting an adversary and showing intent on the part of the
11 adversary for moving towards the inner part of the most secure
12 parts of the plant.
13 I don't know if you had another question or not.
14 Q. What type of force is authorized by security if someone
15 were to intrude past that PIDAS system into that area?
16 A. Lethal force is authorized. The PIDAS is intended to
17 detect, and once -- and show intent on the part of the
18 adversary. Once the intent is shown, then tactical response
19 is necessary to determine the extent of the threat. Again, at
20 that point, lethal force is authorized on the part of the
21 protective force.
22 They will go through their rules of engagement. They
23 have specific training of what to look for. But at that
24 point, that response is at the -- is at the discretion of
25 the -- well, it's as good as the training of the responding
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 63 of 315 PageID #: 1593 ERHART - Direct 64
1 protective force and as good as the outcome is dependent on
2 what the adversaries choose to do at that point as well.
3 Q. Now, you previously referenced that some portions of Y-12
4 complex require certain clearances, or you have to be badged
5 and escorted. What about this area, the protected area?
6 A. That's one area that you need to have -- you have to have
7 special access, special credentials. We have -- we do dual
8 check of authenticity of those credentials. We have other
9 things we do. We have other monitors in that area. So we
10 purposefully make that a more thorough check to get into the
11 protected area.
12 Q. Can you describe the PIDAS a little bit more in detail?
13 A. Sure. I mentioned it's a series of fences. There's
14 three fences; one on the outside, an interior fence and one on
15 the inside, inside being closest to within the protected area.
16 There are several types of sensors, and there are
17 different types of technologies that are intended to be
18 redundant so we -- and they're spaced within the PIDAS area so
19 that you'll detect sensors that are progressive. So if you
20 get an alarm, say, on the outer fence, followed by a sensor of
21 movement, it's looking for movement on the gravel bed,
22 movement on an interior fence, et cetera.
23 The intent is to show that there's something progress --
24 could be something progressing toward the inner fence. So
25 it's designed to detect that. So it's really the series of
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 64 of 315 PageID #: 1594 ERHART - Direct 65
1 events that you would get on your alarm station that could
2 determine a pathway, and that's what you want to determine,
3 that there's a pathway being developed through the PIDAS.
4 Q. Now, are there any other kind of barriers or anything, or
5 is it just the fencing and the motion sensors?
6 A. Well, so that's the system of fence. The PIDAS system is
7 what I described on the outside -- outside of the red line,
8 there's vehicle barriers to prevent vehicle-borne detonations
9 as a threat, for instance. There's concertina wire and other
10 types of delay. So the PIDAS -- so basically, we prefer you
11 not try to go through the PIDAS and be deterred by the other
12 things that are on the outside. But so that slows you down.
13 Delay in security, as far as security goes, gives us time to
14 detect.
15 So those other things, those -- they're not intended to
16 totally prevent an adversary that is intent on coming across,
17 but it should delay long enough so that pro force can detect
18 and respond and attrit, if necessary, to prevent the special
19 nuclear material to be threatened.
20 THE COURT: Miss Kirby, now would be a good time for
21 a break, unless you have only a few more questions.
22 MS. KIRBY: I have more than that, so this would
23 probably be the best time.
24 THE COURT: Ladies and gentlemen, remember, you can't
25 talk about the case. We're going to take a 15-minute recess.
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1 I'll see you back here at 11:00 sharp. Thanks.
2 (The jury left the courtroom at 10:45 a.m.)
3 THE COURT: The jury's out. Is there anything we
4 need to cover?
5 MR. THEODORE: No, Your Honor.
6 MR. IRWIN: No, Your Honor.
7 THE COURT: We're still in session.
8 MR. HUTSON: In terms of objections, will it suffice
9 for us to say objection, leading, or objection, relevance,
10 instead of pointing to the exact rule?
11 THE COURT: Yes. I appreciated Mr. Irwin's diligence
12 in pointing to the rule. I'll take that any time. If you
13 want to do objection, leading, that's fine. I definitely
14 appreciated the rule cite. Thank you. We're in recess.
15 (Recess from 10:47 a.m. until 11:01 a.m.)
16 MR. QUIGLEY: Your Honor, we had a point we'd like to
17 raise.
18 THE COURT: Quickly. Get me before this if you want
19 to, usually. Go ahead.
20 MR. QUIGLEY: Your Honor, an awful lot of what this
21 witness has talked about are exactly the same issues that Your
22 Honor excluded from Ramsey Clark, excluded from the Dr. Ira
23 Helfand issue, excluded as defenses for our people in terms of
24 deterrence, nuclear capability, the start of the various
25 treaties. He talked about the treaties on the stand. He
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 66 of 315 PageID #: 1596 ERHART - Direct 67
1 talked about the impact of the bombs. I think that if, in
2 fact, you have allowed him to --
3 THE COURT: First, you haven't objected. Second,
4 they have to prove that Y-12 is involved in the national
5 defense, and that's what they've done is they're proving an
6 element. These are apples and oranges.
7 Your defense is much different than them proving the
8 elements of the case.
9 MR. QUIGLEY: In terms of the information that he's
10 talking about, I think that we would like permission of the
11 Court from this point onward to be able to recall Ramsey
12 Clark, to be able to recall Dr. Helfand. He's talking about
13 these are weapons which are vital to the security of the
14 United States. These are things that protect us and keep us
15 safe, and there are plenty of other people, the ones that we
16 tried to bring before this Court, to say that is not, in fact,
17 accurate, factually accurate. That these weapons create --
18 THE COURT: You can contest that this facility has
19 nothing to do with the national defense, but that's much
20 different than a necessity defense. You're talking about
21 apples and oranges.
22 The government's trying to prove that this facility has
23 something to do with the national defense. They are entitled
24 to do that, because that is an element of the crime. I think
25 you and I both could agree on that.
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1 MR. QUIGLEY: That's correct.
2 THE COURT: You can show that this facility is not a
3 national defense facility in any way you want. That's just
4 disproving an element. But raising a necessity defense is
5 something completely different, and you didn't meet the
6 elements of raising a necessity defense for the reasons I
7 gave.
8 You haven't lodged an objection to any of his testimony
9 at this point, other than leading, which I gave guidance the
10 first time and sustained the second.
11 If you intend to object to his testimony, let me know,
12 and we can talk about it. Otherwise, you're more than welcome
13 to probe whether or not this is a national defense facility.
14 Let's get the jury.
15 MR. QUIGLEY: And one other thing, Your Honor. Mr.
16 Irwin and I forgot your suggestion that one person do all of
17 this; if they're going to do the cross, they do the objection.
18 So we will do that, and I apologize to the Court.
19 THE COURT: Who is doing the cross?
20 MR. QUIGLEY: I am going to do the cross. So the
21 objection with leading question --
22 THE COURT: Mr. Irwin's now doing the cross. I'm
23 kidding. But okay.
24 MR. QUIGLEY: Thank you, Your Honor. We will be more
25 consistent.
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1 MR. LLOYD: Your Honor, may I approach? It's very
2 brief. It's not an objection. It's a concern.
3 THE COURT: Yes.
4 (Sidebar conference as follows:)
5 MR. LLOYD: Your Honor, Juror Number 256, center of
6 the back row, is -- looks as if he's sleeping sometimes.
7 THE COURT: Okay. I'll keep an eye on him. We can
8 change him to an alternate if that's the case, if I notice it.
9 I appreciate your bringing it to my attention. The testimony
10 was a little dry to start, I can tell you that.
11 MR. THEODORE: It's not uncommon for jurors to get a
12 little tired sometimes so I think at this point, there's no
13 reason at this point to call into question this particular
14 juror.
15 THE COURT: I agree, but I'm going to observe him.
16 If I see something different, I'll keep the government moving
17 so the jurors are entertained versus bored, okay? Thank you.
18 (Sidebar conference concluded.)
19 (The jury entered the courtroom at 11:05 a.m.)
20 THE COURT: You may proceed.
21 MS. KIRBY: Thank you, Your Honor.
22 BY MS. KIRBY:
23 Q. Mr. Erhart, we were discussing the PIDAS system, the
24 fencing system around the area. Are there any signs on the
25 PIDAS warning would-be intruders?
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1 A. I believe there are, yes.
2 Q. What type of signs; do you know?
3 A. I believe the essence of the message is to stop and to --
4 that lethal force is authorized.
5 Q. Is the PIDAS -- we discussed earlier that the Y-12
6 complex was owned by the government, and there were
7 contractors as well that worked there and operated the
8 facility. Is the PIDAS owned by the federal government, or is
9 it owned by a contractor?
10 A. Everything on the site is owned by the federal
11 government, including the PIDAS.
12 Q. Do any repairs made to the PIDAS come out of NNSA's
13 budget, even if the contractor performs that labor?
14 A. Yes.
15 Q. What is the Highly Enriched Uranium Materials Facility?
16 A. That is a fortified warehouse, essentially. Very, very
17 secure facility, fairly modern, actually for Y-12 extremely
18 modern, built the last few years. And that's the place where
19 all the -- the most valuable assets, the highly enriched
20 uranium, the secondaries that we talked about before are
21 stored at Y-12.
22 There's a small amount of process -- well, what we do is
23 repackage. So there's a small amount of work that's done to
24 repackage material. But primarily, it's a storage facility.
25 Q. Where is the Highly Enriched Uranium Materials Facility
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 70 of 315 PageID #: 1600 ERHART - Direct 71
1 located on the Y-12 complex property?
2 A. I can point it out on this map, if you'd like.
3 Q. Certainly.
4 A. This is the building right here.
5 THE COURT: With a number does that have on it?
6 MS. KIRBY: That is Exhibit 2.
7 THE COURT: I know that; that he's pointing to.
8 MS. KIRBY: Of the buildings? It's 9720-82.
9 THE COURT: 9720-82. Thank you.
10 BY MS. KIRBY:
11 Q. Is the Highly Enriched Uranium Materials Facility a vital
12 part of the operations that go on at Y-12?
13 A. Yes.
14 Q. Moving out from the protected area, are there any other
15 boundaries on the Y-12 property?
16 A. Yes. So we talked about the protected area being the
17 PIDAS fence. There's a fence that's on the -- that demarks, I
18 guess, the boundary of the Y-12 property, which we talked
19 about before, which is the blue line at the top of the screen,
20 also known as the 229 boundary, which comes out of the Atomic
21 Energy Act, Section 229, which specifies that the federal
22 government can -- that that is the identifier for the boundary
23 of the federal property, as well as I think it requires the
24 survey to be placed in the Federal Register.
25 Q. Okay. So you mentioned there that it's shown on the
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1 diagram. Is that the entire 229 boundary there?
2 A. Well, on my map, it shows just a portion of the blue
3 line. So the 229 boundary, I think, on the -- I mean, it's
4 pretty extensive. It goes around the Y-12 plant.
5 Q. Now, does everything inside that 229 boundary, as you
6 call it, is everything inside that Y-12, or does Y-12 extend
7 past that boundary?
8 A. No, that's the Y-12 boundary.
9 Q. Does that blue line or fence, does it encompass the
10 entire property?
11 A. For the Y-12 property, yes.
12 Q. Please look at what's been marked as Government's Exhibit
13 Number 46.
14 THE COURT: Is there any objection to this one?
15 MR. IRWIN: No objection, Your Honor.
16 THE COURT: It will be admitted.
17 BY MS. KIRBY:
18 Q. Do you recognize Government's Exhibit Number 46?
19 A. Yes.
20 Q. What is this exactly?
21 A. It's a No Trespassing sign. It's a standard-issue sign
22 by the Department of Energy, and it's required to be located,
23 to be very visible on the 229 boundary fence or -- whether
24 it's a chain link fence or a three-strand wire fence to
25 clearly identify to folks that this is federal property and
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 72 of 315 PageID #: 1602 ERHART - Direct 73
1 there's to be no trespassing.
2 Q. So what's the purpose of these signs that are located on
3 that 229 boundary fence?
4 A. Purpose is to notify people that they're about to go
5 across on to a Department of Energy property and that that's
6 against the law, essentially.
7 Q. Thank you.
8 MS. KIRBY: Your Honor, may I approach the witness
9 once more?
10 THE COURT: For what purpose?
11 MS. KIRBY: To hand up this map.
12 THE COURT: Yes.
13 MS. KIRBY: Thank you.
14 BY MS. KIRBY:
15 Q. Mr. Erhart, if you can hold up the map to where the jury
16 can see it, can you give the jury an idea generally of where
17 the 229 boundary encompasses the Y-12 property as it's shown
18 on the map and also where the PIDAS is in relation?
19 A. Okay. Do this and be heard at the same time. So the 229
20 boundary is the blue line, and it runs -- this is the north
21 ridge so it actually -- this is not a topographical map. But
22 on the other side of the ridge, on the north side, there's a
23 fence and it's marked as we just discussed.
24 The 229 boundary actually goes down along Scarborough
25 Road and then further down this way, off the map.
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1 The PIDAS boundary that I marked in red is located here.
2 So you can see there's, you know, I don't know what that is,
3 800 yards or so between the 229 boundary fence at this
4 location and the first PIDAS fence.
5 Q. And now, as you stated, the 229 boundary is enclosed, but
6 I guess all of it's not on that map?
7 A. Right.
8 Q. Thank you. Are you familiar with the breach that took
9 place at the Y-12 complex on July 28, 2012?
10 A. I am.
11 Q. Very generally, what's your personal knowledge of the
12 incident?
13 A. My personal knowledge is extensive. But generally, it
14 was an incursion through the PIDAS bed, like I described it
15 before. There were elements of the response that were not
16 satisfactory. That's been widely publicized.
17 But my direct observation was on the morning of the
18 event, I got there with the folks already being detained but
19 still outside of HEUMF.
20 So from the reports and follow-on, it was apparent that
21 they'd gone through the three-fence system we described. I
22 mentioned the tactical response was not -- the overall
23 response was not adequate in that they were in the inner area,
24 where they shouldn't be.
25 So I can go into more detail about my personal knowledge
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 74 of 315 PageID #: 1604 ERHART - Direct 75
1 if you'd like, but --
2 Q. Were there any disruptions to the operations at Y-12 on
3 July 28, 2012, as a result of the breach?
4 A. Could you repeat the question?
5 Q. Were there any disruptions to operations at Y-12 that
6 morning of the incident as a result of the breach?
7 MR. LLOYD: Objection. Ultimate issue.
8 THE COURT: I'm sorry?
9 MR. LLOYD: Objection. Ultimate issue.
10 THE COURT: Overruled. Go ahead. You may answer.
11 THE WITNESS: So the morning of the event, the plant,
12 in response to the event, had to go fully secure, which means
13 all materials locked away, no normal operations until it could
14 be proven that the layered security system that we discussed
15 briefly before was, in fact, in place.
16 There had to be thorough sweeping of every square foot,
17 essentially, of the enclosed 229 boundary with a lot of
18 looking within, inside the Y-12 plant, to rule out the
19 possibility that this was more than it appeared, that there
20 would be more adversaries to -- that could cause harm. So
21 that entire day was basically spent ensuring that we didn't
22 have further threats to the plant.
23 Of course, the disruption continued on after that, up to
24 and including a 15-day stand-down of operations, full
25 stand-down of operations, meaning that all nuclear operations
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 75 of 315 PageID #: 1605 ERHART - Direct 76
1 at the site were suspended in order to ensure ourselves
2 through various means, including training for all plant
3 personnel on new procedures in security while we were also
4 working our short-, intermediate- and long-term action plans
5 to deal with the deficiencies that were in our security at
6 that time.
7 Q. Before getting into the shutdown that you referenced that
8 took place for approximately two weeks, with regard to the day
9 of the actual event, July 28, 2012, were there any, for
10 instance, shipments coming or going from Y-12 that were maybe
11 disrupted as a result of this incident?
12 A. So yes, there were. I mention also the -- forgot to
13 mention in the last answer, of course, we had to fix the
14 fences, restore the sensors, repair the damage.
15 And then during the time frame of trying to figure out
16 completely what happened and what failed and how to deal with
17 it, we had an inbounds shipment, as counsel mentioned, that we
18 get our -- or I mentioned earlier that we get our components
19 and materials from other places. That is done by secure
20 transport. It's a separate part of NNSA that moves weapons
21 and materials around the country.
22 So we -- just so happened, we had a shipment inbound that
23 morning. That shipment was substantially delayed as we worked
24 out the -- one thing to consider is that the commander of the
25 convoy that is responsible for the load of material in a -- in
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1 that secure transport has to make the decision of where and
2 when and how to -- when his mission is complete. In other
3 words, the material has to be safeguarded. And in the time
4 it's in his custody, that commander is responsible for that
5 material.
6 So there's a lot of coordination that goes into that in a
7 normal morning. This was abnormal in that we had lots of
8 security forces up in -- sorry -- up in the north ridge area
9 where we believe that the perpetrators came through, and so we
10 had --
11 Q. Excuse me, Mr. Erhart. I didn't mean to interrupt you.
12 You can hold that up if you want to reference the map to show
13 the jury something you're talking about.
14 A. Thank you. This is the north ridge. This is the area
15 that we were concerned about after the event. We were looking
16 for people --
17 THE COURT: What number is that above that you're
18 pointing at, so the record's clear? You just pointed above --
19 you said "this is the area we're concerned about." Give the
20 number of the buildings and the area.
21 MS. KIRBY: Your Honor, I believe where he's pointing
22 there's no buildings.
23 THE COURT: There are below it.
24 THE WITNESS: Yes, Your Honor. Building 9782.
25 THE COURT: Above that on the map is where you're
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 77 of 315 PageID #: 1607 ERHART - Direct 78
1 pointing?
2 THE WITNESS: Yes, Your Honor.
3 THE COURT: You may proceed.
4 THE WITNESS: So given the cuts to the fences and
5 the -- what we observed on the scene, that was the entry
6 point, and so we're looking in the tree area north of that.
7 We were actually looking at the south ridge, but the south
8 ridge is much less wooded. So when you have an event, you
9 have to ensure yourself through doing the sweeps that there
10 are no other threats to the plant.
11 So in so doing, also, the OST, that's the Office of
12 Secure Transportation folks responsible for the convoy wanted
13 to ensure themselves that there were no threats, given the
14 increased security posture of Y-12 and the event itself, to
15 that convoy, and they have every right to do that.
16 So, of course, as luck would have it, they wanted to take
17 control of this ridge to ensure safe passage of the material.
18 So there was a lot of discussion on how to do that safely and
19 a heightened sense of security, state of security. We
20 certainly don't want anybody confusing -- getting confused and
21 causing -- shooting each other.
22 So we had to coordinate who was where and when through
23 the -- through that day, essentially, or reroute the --
24 reroute the convoy. The decision was made, we worked it so
25 that the convoy could come into the Y-12 complex. But it took
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 78 of 315 PageID #: 1608 ERHART - Direct 79
1 many, many hours to resolve.
2 Q. Was the shipment received at the scheduled time that day?
3 A. No.
4 Q. Was there an institutional response to the defendants'
5 July 28, 2012 breach?
6 A. Extensive, yes. The institution, if you think about it
7 on a DOE scale, was quite, quite extensive in order to ensure
8 the Secretary of Energy that similar conditions that were
9 found to -- that preceded the event were not in place anywhere
10 else in the complex.
11 So the secretary -- first, the administrator of NNSA had
12 reviewed -- mandatory reviews to be done at all the NNSA
13 sites. So did the Secretary of Energy. So quickly
14 thereafter, looking for some of the organizational and other
15 issues that we were finding right at the point of this event
16 to make sure they didn't exist anywhere else, and although I
17 was working at this site, at the Pantex plant, for instance,
18 which I'm also responsible for, that had --
19 MR. LLOYD: Your Honor, I do have an objection, and
20 it's based on Your Honor's earlier ruling concerning
21 particularization.
22 THE COURT: I'm not sure I follow. Why don't you
23 approach.
24 (Sidebar conference as follows:)
25 MR. LLOYD: Your Honor, in the April 23 hearing --
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1 THE COURT: Why don't you tell me what you're
2 objecting to.
3 MR. LLOYD: I'm objecting to anything beyond the
4 scope of disruption at Y-12, which we were informed at the
5 April 23 hearing was the sole -- the scope of the asserted
6 national defense element of the offense.
7 MR. HUTSON: On behalf of Mr. Obed, I would say --
8 MR. THEODORE: Your Honor, can I object? Mr. Obed is
9 representing himself.
10 THE COURT: I agree. He has to speak for himself.
11 So go ahead, Mr. Theodore.
12 MR. THEODORE: With respect to the hearing, I
13 remember it well, and we talked about the bill of particulars.
14 It was clear that we indicated it would be disruptions to the
15 operations of Y-12. I think everything he's testified here is
16 within that scope. We also talked about and acknowledged the
17 fact that there could be collateral consequences with respect
18 to that as well.
19 THE COURT: But you are getting extraneous to -- the
20 issue isn't whether or not there were disruptions, which I
21 don't know why Mr. Lloyd said that's the ultimate issue,
22 because he's wrong.
23 The issue is whether or not the defendants had intent to
24 disrupt, and the disruption itself is just circumstantial
25 evidence of their intent, as long as you tie it back in. But
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1 as you get further afield, it becomes less and less relevant.
2 That's not his objection so I won't make it for him.
3 I do agree, as you get further afield from that, it
4 becomes less likely that they would recognize that. So it's
5 not circumstantial evidence of their intent, and so it really
6 isn't relevant.
7 MR. THEODORE: Well, I mean, what they were asking
8 for, what the harm was; and that's what magistrate ordered,
9 what the harm was.
10 THE COURT: Look at the statute itself.
11 MR. THEODORE: I understand what you're saying, but
12 I'm talking about what the magistrate ordered.
13 THE COURT: I'm going by what the law says, and the
14 law says you have to prove their intent to injure, interfere
15 with, or obstruct the national defense of the U.S., and this
16 is circumstantial evidence of that.
17 And then you have to show they willfully injured,
18 destroyed, contaminated or attempted to injure, destroy,
19 contaminate or affect any national defense material, premises
20 or utilities. My understanding is you're going on premises.
21 MR. THEODORE: We are.
22 THE COURT: You've established, at least subject to
23 cross and subject to the jury, but you've put enough evidence
24 from which a reasonable jury could conclude that this is a
25 national defense premises, when viewed in the light most
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 81 of 315 PageID #: 1611 ERHART - Direct 82
1 favorable to the government.
2 The other evidence doesn't go to the ultimate issue. It
3 frankly only goes to circumstantial evidence of their intent.
4 To the extent you get further extraneous from that, it's less
5 likely you can tie it to intent. So the relevance is -- he's
6 not objecting on relevance grounds so the objection is
7 overruled, and you can proceed. If the objection is on
8 relevance grounds, I will sustain the objections
9 MR. THEODORE: I will add to that, I can understand
10 if we are trying to talk about something that affected
11 national security in another country abroad, but this is --
12 we're talking the temporal proximity here is everything is
13 very close that we're talking about. We're talking about
14 shutdown of operations on the day and the shutdown right
15 afterward. To me, that's extremely relevant.
16 THE COURT: Well, that can go to their intent as long
17 as you can make the argument they could foresee it. You're
18 still going to have to tie that loop. But all I'm saying is
19 the further extraneous you get from that, the less and less
20 likely it's circumstantial evidence of their intent.
21 MR. LLOYD: Your Honor, so I don't -- if I may make
22 it now, I'm making the relevance objection too. They stood in
23 front of you and said that the intent was a disruption of that
24 facility, referring to Y-12. Whether there was a disruption
25 in Pantex, in Amarillo, Texas is irrelevant, and it is also
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 82 of 315 PageID #: 1612 ERHART - Direct 83
1 not what the government said it would prove in this case.
2 MR. THEODORE: Actually, that's incorrect, and we can
3 go to the transcript on that.
4 MR. LLOYD: I have the transcript.
5 MR. THEODORE: And we talked about there could be
6 other consequences, and the judge said I understand there can
7 be collateral consequences.
8 THE COURT: Irrespective of that, it's just purely
9 the intent. The intent, everyone agrees that the government
10 is limited to -- or not limited to, but the government is
11 trying to prove that they intended to disrupt the practice at
12 Y-12, the work being done at Y-12.
13 MR. THEODORE: Or injure, interfere with or obstruct
14 the national defense.
15 THE COURT: Right. Well, you have to show that Y-12
16 is a national defense facility. But like I said, viewed in
17 the light most favorable to the government, I think you've
18 accomplished that.
19 So that is the issue. Everything else can be extraneous.
20 Once it gets extraneous, it becomes less relevant. But I
21 don't understand where you're going with it, because what it
22 disrupted only is circumstantial evidence of their intent.
23 They could come in and disrupt nothing. If they intended to
24 disrupt, they're still guilty.
25 MR. LLOYD: Understood, Your Honor, but the
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1 government represented, when I was arguing on the motion for
2 bill of particulars before you, this is Mr. Theodore --
3 THE COURT: I know what he said. I don't understand
4 what you're objecting to. What's the ground for your
5 objection?
6 MR. LLOYD: I'm objecting to the disruption at any
7 facility other than Y-12.
8 MR. THEODORE: We're not talking about disruption at
9 Pantex. We're talking about a shipment that came from Pantex
10 that was interrupted coming --
11 THE COURT: Into the facility.
12 MR. LLOYD: He's also testified in response to the
13 government's questions that he then called other facilities,
14 including Pantex, to check on possible security breaches
15 there, and that is not what the government said it was going
16 to prove.
17 THE COURT: But there weren't any security breaches
18 there. Why don't you want the answer to that question? If
19 there were, it's a new day. We don't know about it, you don't
20 know about it, and the government probably doesn't know about
21 it. If you don't want the answer to it, that's fine, we'll
22 move on. Let's keep the case moving. To the extent he
23 doesn't want the answer to that, it's sustained.
24 (Sidebar conference concluded.)
25 THE COURT: You may proceed, Miss Kirby.
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1 BY MS. KIRBY:
2 Q. Mr. Erhart, how did the shutdown impact Y-12?
3 A. I assume you're talking about the 15-day shutdown?
4 Q. Yes.
5 A. The 15-day shutdown put everything behind at the plant as
6 relates to nuclear operations, which is what primarily we do
7 Y-12. So production schedules were delayed. Some of the work
8 for others, work that we talked about, not just -- so it
9 wasn't just Department of Defense related work, but other
10 work, because we didn't open any of the vaults for those 15
11 days so we left the material in its most secure location, took
12 advantage of all the layers of security while we did the
13 retrain.
14 So essentially, it caused a delay in the work that we're
15 supposed to have been doing.
16 Q. Did Y-12 miss any scheduled deliverables during the
17 period of time that it was shut down?
18 A. Yes.
19 Q. You mentioned that Y-12 was going to have to catch up.
20 Has Y-12 caught up now to its required deliverables and its
21 schedule today?
22 A. I don't know the full answer to that.
23 Q. In what other ways has the defendants' breach harmed Y-12
24 operations?
25 A. Well, it hurt the credibility of the -- you know, that
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1 credibility is related to the deterrent. It affected our
2 credibility at Y-12. We certainly have a lot of people that
3 were affected by that and the circumstances around it and then
4 the actions that had to be taken after that. So it affected a
5 lot of people, a lot of lives.
6 It affected on the credibility side, it affected our
7 credibility to overseas. Because if you remember in my
8 earlier testimony, we talk about taking nuclear material from
9 overseas to a more secure place. Although this breach did not
10 get to the special nuclear material, it's hard to explain that
11 to people's satisfaction that we did have -- that PIDAS was
12 penetrated.
13 So that affects the credibility of the NNSA and of the
14 United States. So Y-12's credibility overall was affected.
15 The actions that were needed at all the other sites, because
16 of the Y-12 event, you know, found -- basically, all the sites
17 had some amount of impact because of the fall-out actions
18 directed by the Secretary, other reviews mandated by the
19 Secretary at Pantex, for instance, because Pantex also has, in
20 this case, it's plutonium --
21 MR. LLOYD: Your Honor --
22 THE COURT: Sustained. Objection sustained. Let's
23 move on.
24 BY MS. KIRBY:
25 Q. What is the New Hope Center?
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1 A. The New Hope Center is a fairly new building. It's used
2 for multiple purposes for plant events. It's got an
3 auditorium, classrooms. It's got a visitor center. The badge
4 office is out there. It's also, it's dual purpose in that
5 it's used by the site. It's also used by the public, who can
6 use the venue for their -- whatever they want as long as they
7 abide by the rules and qualify for the use of the building.
8 Q. Is that building on the map in front of you with
9 Government's Exhibit Number 2?
10 A. Yes.
11 Q. Can you hold that map up and identify the building and
12 state on the record the building number, if it has a number on
13 it?
14 A. It's marked -- it actually says New Hope Center on it. I
15 believe there's a number on it, but I can't read it.
16 THE COURT: If it says it, that's fine.
17 THE WITNESS: On the map, it's located over here at
18 the easternmost portion of the Y-12 plant, just inside the 229
19 boundary.
20 BY MS. KIRBY:
21 Q. Do you have to have a badge to get into the New Hope
22 Center?
23 A. No.
24 Q. Has Department of Energy made accommodations for nuclear
25 weapons protesters before?
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1 A. Yes.
2 Q. And generally, what are some of those accommodations that
3 have been made?
4 A. Well, the New Hope Center is available for -- you know,
5 as long as you -- I can't remember the number that there's --
6 as long as you qualify as a certain organization, like the
7 Girl Scouts qualify. And actually, protest groups, some of
8 them qualify. You have to have a certain -- maybe it's a tax
9 exempt status. I'm not sure. Other than that -- and then I
10 think you pay a small deposit, and you have to have it
11 scheduled and abide by the rules of the New Hope Center. Then
12 it's available for public use.
13 Q. Do the rules prohibit, for instance, protesters from
14 expressing their views, or is it a place where the facility
15 can be used for whatever purpose the group is --
16 A. Right. It's not restricted by the viewpoints of the
17 folks that want to use the center.
18 Q. Thank you.
19 MS. KIRBY: Your Honor, the Government would like to
20 substitute a photograph of this Government's Exhibit
21 Number 46, which is the yellow sign.
22 THE COURT: Any objection?
23 MR. IRWIN: No, Your Honor.
24 MR. LLOYD: No, Your Honor.
25 THE COURT: Okay.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 88 of 315 PageID #: 1618 ERHART - Cross 89
1 MS. KIRBY: And it's marked as 46A, the substitution.
2 THE COURT: That will be admitted as a substitution
3 exhibit.
4 MS. KIRBY: Your Honor, I have no further questions
5 of this witness at this time.
6 THE COURT: Great.
7 CROSS-EXAMINATION
8 BY MR. QUIGLEY:
9 Q. Good morning. My name is Bill Quigley. I'm a volunteer
10 lawyer for the defendant from New Orleans. I'm going to ask
11 you some questions about your testimony. The Department of
12 Energy has concluded that the incident at Y-12 and the poor
13 response to it demonstrated a deeply flawed execution of
14 security procedures at Y-12; isn't that correct?
15 A. That is correct.
16 Q. Isn't it also correct that the shutdown that occurred by
17 the Department of Energy, reported to Congress, that the
18 nuclear operations at the site were shut down, suspended until
19 retraining and other modifications were completed at 12:00?
20 A. I'm not sure what -- I can't speak what Department of
21 Energy said to Congress, but that was the purpose of the shut
22 down.
23 Q. And during the shutdown, the entire work force at Y-12
24 got additional training; isn't that correct?
25 A. Yes. It was primarily, of course, the security element
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1 really had the majority of the changes in the training. But
2 the entire site had some type of security training, that's
3 correct.
4 Q. And during that shutdown, there were repairs made to
5 nonfunctioning security parts; isn't that correct?
6 A. Yes, sir.
7 Q. Isn't it a fact that one of the cameras that would have
8 actually identified the defendants had been out of -- had been
9 not working for six months before this happened?
10 A. I believe that's accurate, yes.
11 Q. And isn't it correct that one of the fences didn't have
12 even working parts because those were on backorder and not
13 available to the people on site at Y-12?
14 A. I not familiar with that deficiency, no, sir.
15 Q. Isn't it a fact that guard patrols were increased as a
16 result of the incursion at Y-12?
17 A. That's correct.
18 Q. That security policies have been strengthened as a result
19 of the incursion at Y-12, the policies themselves?
20 A. I can't testify to that. I think there were changes in
21 the policies. But overall, the intent was to get stronger
22 after the security event.
23 Q. And wasn't one of the findings was that different arms of
24 the operation weren't communicating well with each other and
25 that that had to be fixed in order to prevent something like
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1 this from happening again?
2 A. That is true. The differences in the gaps between the
3 contractors, and that communication was poor, and that was one
4 of the contributing causes, yes, sir.
5 Q. And hasn't -- as a result of the changes, the false and
6 nuisance alarms have been reduced?
7 A. False and nuisance alarms related to the PIDAS bed?
8 Q. Yes.
9 A. Yes, sir. Those have been greatly reduced.
10 Q. And isn't that one of the causes that allowed these
11 individuals to get in, that the guard thought it might have
12 been a nuisance or it might have been an animal or something
13 like that, so they didn't take it as seriously as they would
14 today?
15 A. Yes. The high rate of nuisance and other nuisance and
16 false alarms was identified in the causal analysis as being
17 one of the contributing causes to not -- you know, the
18 incomplete and incorrect response, yes, sir.
19 Q. And wasn't the conclusion of the investigators in this
20 that there was a security culture of complacency?
21 A. I'm not familiar with that as words from the
22 investigators, but I have read something that uses those
23 terms, but I don't believe it was one of the -- we had
24 multiple reviews.
25 Q. Would you agree that there was a sense of complacency
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1 among the security personnel that has been changed as a result
2 of this incursion?
3 A. I believe a better word would be or a better term would
4 be normalization of the deviation from the optimum, and so --
5 and it was a -- you know, I think culturally, it was -- it
6 occurred over time where they became more -- they became too
7 comfortable with things not working than they should have. So
8 however you want to term that.
9 MR. QUIGLEY: If Your Honor would allow, I'd like to
10 approach the witness and give him a copy of a September 12
11 statement to Congress by Honorable Daniel Ponemon, Deputy
12 Secretary of the Department of Energy, that includes the
13 statement that the initial review of this event resulted in
14 the identification of multiple issues, collectively indicating
15 that systemic failures and a security culture of complacency
16 directly led to the series of events leading to the protester
17 inclusion. Just to refresh.
18 THE COURT: Well, you're not going to -- you can give
19 it to him and see if he was aware of that testimony, but, I
20 mean, he said they became too comfortable. Whether you want
21 to call it complacency or comfort, I'm happy to have you give
22 it to him and see if he's aware of it. If he is, he can
23 testify to it.
24 MR. QUIGLEY: Thank you, Your Honor.
25 MS. KIRBY: Objection, Your Honor, on the ground of
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1 hearsay.
2 THE COURT: He's just refreshing his recollection.
3 He's not asking if it's true. He's asking if that term was
4 used in describing it. This witness has described it as
5 people becoming too comfortable. Someone else may have
6 described it a different way. Overruled.
7 Are you familiar with that testimony?
8 THE WITNESS: I haven't read the testimony, Your
9 Honor, but I was familiar that Mr. Ponemon did testify, but I
10 had not read the entire testimony.
11 THE COURT: So it's not going to refresh his
12 recollection, since he didn't have it. Go ahead.
13 MR. QUIGLEY: I will move on, thank you.
14 BY MR. QUIGLEY:
15 Q. Are you familiar, sir, with the inspector general's
16 special report dated August 2012 into the inquiry into the
17 security breach at the National Nuclear Security
18 Administration's Y-12 National Security Complex?
19 A. Yes, sir.
20 Q. Would you agree with that finding, in that that the
21 incident at Y-12 represented multiple systems failures on
22 several levels?
23 A. Yes, sir, I would.
24 Q. Would you agree that it resulted from troubling displays
25 of ineptitude in responding to alarms?
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1 A. I believe that, like I stated before, the overall
2 response or the system -- I concur that it's a system-level
3 breakdown that allowed this to occur.
4 Q. And you agree that a failure to maintain critical
5 security equipment was a cause?
6 A. It was a cause, although I will say a further cause of
7 that is at Y-12, for several reasons, the equipment itself was
8 not initially kept as critical safety equipment so it was
9 actually not categorized correctly. Therefore, it was not
10 maintained correctly. So it was two-fold.
11 Q. Two-fold, okay. Misunderstanding of security protocols,
12 was that a cause?
13 A. To a degree, yes, sir.
14 Q. Poor communications?
15 A. Yes, sir.
16 Q. Weaknesses in contract and resource management?
17 A. I concur with that, yes, sir.
18 Q. There was a substantial backlog of degraded and/or
19 non-operational security equipment?
20 A. Yes, that's accurate.
21 Q. Inoperative cameras?
22 A. There were inoperative cameras, yes, sir.
23 Q. Periodic testing of security features was not performed?
24 I'm sorry. It was not properly performed.
25 A. Okay. Yes, sir.
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1 Q. Fractured management structure appeared to have led to
2 conflicting priorities?
3 A. Yes, sir.
4 Q. Contractor governance and federal oversight failed to
5 identify and correct early indicators of the multiple systems
6 breakdowns that contributed to the incident?
7 A. Yes, sir.
8 Q. Afterwards, quite a number of things were to change to
9 make sure that an incident like this didn't happen again?
10 A. That's correct.
11 Q. Perceived a level of confidence in the quality of the
12 security apparatus that was unjustified?
13 A. Can you repeat that?
14 Q. It's a conclusion of the inspector general's, we perceive
15 there to be a level of confidence in the quality of the Y-12
16 security apparatus that was unjustified.
17 A. Yes, sir, that's accurate.
18 Q. Would you agree with the statement that ironically, the
19 Y-12 breach may have been an important wake-up call regarding
20 the need to correct security issues at the site.
21 A. Is that a statement out of the IG report?
22 Q. Yes, sir, page 8. I'll give you a copy if you like.
23 THE COURT: You may approach.
24 MR. QUIGLEY: I'm sorry.
25 A. Okay. That is -- yes, it's part of the report, yes, sir.
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1 Q. Thank you. So, sir, do you think that it's possible that
2 the 82-year-old sister and the other senior citizens could
3 have anticipated that the security cameras would have been out
4 for six months in some cases; that the operations, different
5 parts of the operations weren't talking to one another; that
6 there were mistakes and missing pieces in terms of the
7 security perimeter equipment; that there would be poor
8 communications; a sense of comfortableness and complacency so
9 that they could anticipate that when they went through the
10 first fence, they could get to the second fence, they could
11 get to the third fence, and get all the way in?
12 And the judge has instructed me I have to keep a hand on
13 the podium. That's why I'm doing this.
14 THE COURT: I thought you were going to use the mike
15 so everyone could hear.
16 BY MR. QUIGLEY:
17 Q. Do you think it's possible that they really thought that
18 they could do that on that day?
19 MS. KIRBY: Objection, Your Honor. Speculation.
20 THE COURT: It is speculation. It's sustained.
21 BY MR. QUIGLEY:
22 Q. Do you think -- did you, on the day it happened, did you
23 think it was possible for three unarmed senior citizens to get
24 through all these systems to get to the HEUMF without being
25 touched, without being stopped, without being deterred at all
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 96 of 315 PageID #: 1626 ERHART - Cross 97
1 by any of these systems?
2 MS. KIRBY: Objection, Your Honor. Relevance.
3 THE COURT: Overruled. Go ahead, sir.
4 THE WITNESS: I was very surprised at the reports.
5 BY MR. QUIGLEY:
6 Q. Now, you said that this incident hurt the credibility of
7 the Y-12. Is that the fault of the defendants?
8 A. The credibility was affected by the events that occurred
9 on the 28th of July.
10 Q. But they didn't create the camera that was out and the
11 other things. They illuminated the problems that were there;
12 is that correct?
13 A. Well, my opinion is these -- just as the IG states, there
14 is systemic issues within the security program, the security
15 system that should have been detected and acted on by either
16 the contractor or the Feds that would have prevented success
17 on the morning of July 28. So that was -- those deficiencies
18 existed.
19 Q. And the fact that those deficiencies existed is what hurt
20 the credibility; isn't that correct?
21 A. Well, I think it's a combination of -- well, the event
22 itself and then the reaction to the event. I guess you could
23 say they both did.
24 Q. Did that hurt your credibility at all in your position at
25 Y-12?
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1 A. I don't know.
2 Q. Now, said there was a disruption of a delivery at Y-12
3 that day. Was a convoy -- was the fact that a convoy was
4 coming in, was that knowable to people in the general public?
5 Could they have known that?
6 A. No.
7 Q. Do you think that Y-12 is more secure today than it was
8 the day that they showed up?
9 A. Yes, sir.
10 Q. Is Y-12 now able, actually, probably, to have a chance
11 against some highly trained people who are not non-violent
12 protesters?
13 A. The Y-12 plant is well equipped to deter the full
14 spectrum, deter -- detect, deter and attrit the full spectrum
15 of any threat thrown its way.
16 Q. Now, you testified that every nuclear weapon manufacturer
17 in the United States goes through Y-12 at some point; is that
18 correct?
19 A. I believe my testimony did include that all weapons, full
20 op weapons go to Y-12. But my testimony was intended to say
21 that all the weapons in the stockpile have a component, the
22 secondary, that was manufactured at Y-12.
23 Q. Thank you. Did those components go into the W6
24 warhead -- W76 warhead?
25 A. Component being the secondary?
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1 Q. Yes.
2 A. Yes. Y-12 refurbishes the secondary for the W76.
3 Q. And doesn't the W76 warhead have eight times the force of
4 the bomb that was dropped on Hiroshima?
5 A. I don't know the exact yield of the W76.
6 Q. Well, do you know whether Y-12 does the secondaries for
7 the W78?
8 A. Yes, sir.
9 Q. And do you know whether that has 30 times the force of
10 the bombs at Hiroshima?
11 A. Again, I'm not -- I don't know the exact yield of that
12 weapon.
13 Q. And the refurbishment is to make sure that these weapons
14 are effective and reliable; is that correct?
15 A. Yes. The refurbishment is, again, working on problems
16 that have been identified through surveillance, possibly aging
17 issues, to ensure -- increase and ensure the reliability of
18 the weapons system, yes, sir.
19 Q. And what is the impact of the use of one of those
20 weapons? What would happen if they were used?
21 A. The use of a nuclear weapon would be a devastating event
22 in that the -- as you point out, the yields are very high, and
23 they're very destructive. So that's -- the use of a nuclear
24 weapon is very devastating.
25 Q. And you testified that the Little Boy bomb was, in part,
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1 assembled or parts of it were created, and that was dropped on
2 Hiroshima. Do you know how many people died at Hiroshima?
3 A. I do not.
4 Q. Do you know how many of them were civilians?
5 A. I do not.
6 Q. You talked about the Fat Man bomb being dropped on
7 Nagasaki. Do you know how many people died as a result of
8 that bomb?
9 A. No, sir.
10 Q. Do you know how many of those -- do you know how many
11 civilians were killed as a result of that?
12 A. Again, I don't know the exact number, but I believe a
13 large percentage were civilians, ser.
14 Q. Now, you said that in your experience that the bombs had
15 not been used on other population centers. These bombs have
16 been exploded regularly as part of test explosions over the
17 years; is that correct?
18 MS. KIRBY: Objection, Your Honor. Relevance.
19 THE COURT: Overruled, but move on after this.
20 MR. QUIGLEY: All right.
21 THE WITNESS: Question being, have we done
22 below-ground nuclear tests? Yes, sir. I believe they stopped
23 in the mid '90s.
24 BY MR. QUIGLEY:
25 Q. And do you know how many of them there were?
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1 A. No, sir.
2 Q. You said that nuclear materials were stored at Y-12. I'd
3 seen a report of about 400 metric tons. Would that be
4 accurate?
5 A. It's a large number, but I can't testify whether that's
6 accurate.
7 Q. I see. You talked about that the use of these weapons
8 was to promote nuclear deterrence and national defense. Are
9 you familiar at all with the 1978 nuclear non-prolif --
10 nuclear non-prolif -- I know what it is. I just can't say it.
11 The nuclear non-proliferation treaty. I got through it. You
12 understand?
13 A. Yes, sir.
14 Q. Are you familiar with that treaty?
15 MS. KIRBY: Objection, Your Honor. Relevance once
16 again.
17 THE COURT: Overruled.
18 THE WITNESS: I'm familiar that there is such a
19 treaty. All the particulars, I'm not a policy or a treaty
20 expert.
21 BY MR. QUIGLEY:
22 Q. So your opinion about promoting nuclear deterrence is
23 just your personal opinion because you're not a policy or
24 political expert?
25 A. No, I believe that -- well, the nuclear deterrent itself
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 101 of 315 PageID #: 1631 ERHART - Cross 102
1 is what it is. I base that on more than just my personal
2 opinion.
3 Q. And nuclear weapons are also very a significant threat to
4 the world, aren't they?
5 A. Well, if used in war, they are devastating. If used to
6 deter aggressive actions and prevent all-out global war, their
7 existence has been, I would say, successful in that the --
8 there hasn't been a war the size of the amount of life lost in
9 World War II, and a dramatic decrease in the number of souls
10 lost in armed conflict since the weapons were used to finish
11 the Second World War. So I guess it depends on how you look
12 at it.
13 Q. You would admit that there is a lot more nuclear weapons
14 around the world now than there were at that time, wouldn't
15 you?
16 A. No, sir.
17 Q. More countries have access to nuclear weapons than had at
18 that point?
19 A. "That point" being the first use of nuclear weapons?
20 Q. Yes.
21 A. The reason I -- so there have been a lot more nuclear
22 weapons in the world during the Cold War than there currently
23 are today, and the number and types of weapons that other
24 countries have, I'm not -- I have no knowledge of that, other
25 than what I read in the paper.
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1 Q. So you wouldn't be an expert on that?
2 A. "On that" being the number and type of weapons other
3 countries have?
4 Q. Right.
5 A. In the nuclear -- that's correct.
6 Q. You said that Oak Ridge also deals with the byproducts of
7 the weapons and the weapons refurbishment. What are the
8 byproducts in that?
9 A. I believe I testified that we reprocess components. So
10 the uranium that comes from dismantled secondaries is
11 reprocessed --
12 Q. All right.
13 A. -- and reused for other things. In fact, a lot of the
14 material is down-blended and recast as fuel, for instance. So
15 a lot of the other materials are also reused -- that come out
16 of the weapon are also reused in the refurbishment program for
17 the stockpile. So that's what I meant by reprocessing or
18 reuse.
19 Q. Is there a serious environmental contamination as a
20 result of the operations at Oak Ridge specifically?
21 MS. KIRBY: Objection. Your Honor. Relevance.
22 THE COURT: That's sustained.
23 BY MR. QUIGLEY:
24 Q. How many warheads are actively deployed -- excuse me.
25 How many --
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1 THE COURT: Mr. Quigley, can I interrupt you?
2 MR. QUIGLEY: Sure.
3 THE COURT: On the last question that I sustained, if
4 you want to try and establish the relevance, you can.
5 Otherwise, you can move on.
6 MR. QUIGLEY: I'm moving on.
7 THE COURT: Okay.
8 BY MR. QUIGLEY:
9 Q. In terms of disarmament that Oak Ridge is involved with,
10 it's my understanding it's 4,600 active weapons, 3,000 of
11 which are awaiting disarmament. Would that be correct?
12 A. I can't testify whether that's an accurate number.
13 Q. Would you testify that there are thousands that are
14 awaiting disarmament that you at Oak Ridge would be involved
15 in?
16 A. There are, I believe there are thousands of weapons in
17 the inactive stockpile that have been actually in the --
18 they've been retired. They're retired from service and are
19 awaiting disarmament.
20 Q. And aren't the weapons that are actually refurbished,
21 don't they end up being more powerful than the weapons were
22 before they were refurbished and modernized in this process?
23 A. I don't believe that's accurate. They become more -- I
24 mean, they're addressing aging effects. But unless I'm
25 mistaken, I don't believe the yield is altered.
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1 Q. I'm sorry. I didn't understand. They're addressing what
2 effects?
3 A. So the refurbishments are intended to increase the life
4 span and the reliability of the weapon, but I'm not aware that
5 it makes the weapon more powerful, which is the question you
6 asked.
7 Q. Okay. In terms of the life extension program, what is
8 actually refurbished in that program?
9 A. Well, it depends on what the design agencies decide, and
10 it's actually it's an interesting dialogue between the design
11 agencies and the Department of Defense and then the DOE, and
12 they look at all of that.
13 It could be -- the inputs could come from aging problems
14 that need to be addressed. It could come from more surety,
15 like I mentioned that the surety is both the safety and
16 security of a nuclear weapon to make it more safe, that it's
17 not going to be used by somebody who shouldn't have it, can't
18 be used.
19 So a lot of that gets considered in putting together a
20 life extension program. So all of that's factored in, and so
21 there's a lot of potential things that will be addressed as
22 part of that life extension program.
23 But key point, it's not a new weapon. It's a refurbished
24 weapon, but with the intent that it's safer, more secure. If
25 we can do it, and then we'll -- the lifetime is extended
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1 because these weapons were built with a nominal, like, 20-year
2 life span. And so we're now asked -- we're not, because of
3 the treaties and all of that, we're not going to build new
4 weapons so we have to make the ones that we have as reliable
5 and to last as long as possible.
6 Q. And what parts of the weapons are actually replaced? You
7 said some are refurbished. What is replaced?
8 A. So the details of the scope, I think, some of which are
9 classified, but for the W76 at Y-12, here we're actually
10 rebuilding the secondary itself. And like I said, the
11 specifics of what goes into that, I believe, is classified.
12 Q. Okay. So are there ultimately new secondaries, or are
13 they reworked, if that's not classified?
14 A. I believe they're new secondaries.
15 Q. Okay. Government Accountability Office, who did a study
16 of management style at nuclear -- the NNSA, described it as
17 eyes on, hands off. Would you be familiar with that phrase
18 and what they said?
19 A. I think the GAO characterized something that NNSA used to
20 try to describe an approach, if that's what you're asking.
21 And I don't know what report you're referencing, but I do -- I
22 do remember that the GAO had said that.
23 Q. Okay. Would eyes on, hands off be a fair description of
24 what the circumstances were with security at Y-12 when these
25 folks came?
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1 A. I don't think it's a very good description of anything,
2 to be honest with you. But, I mean, I think the issues -- and
3 there are plenty, right? The issues had to do with looking at
4 the right things with enough detail to understand the system
5 issues before they got to be as big as they were.
6 So that failure existed on the contractor side as well as
7 the federal side, in that we were focused on the wrong things.
8 Basically, we should have been -- had a better system to
9 review the health of that system, if you think of security as
10 a system, and that was not done effectively.
11 Q. And as an example of that, wasn't even the -- even the
12 investigation after this happened didn't find the place that
13 the defendants actually went through the first fence until the
14 defendants pointed it out in December, several months later?
15 A. To my knowledge, there wasn't much investigation into the
16 actual -- I mean, I not familiar with an investigation to find
17 where they came through the outermost No Trespassing fence.
18 But it is accurate that apparently that the supposed entry
19 point was not the actual entry point. So when that was
20 pointed out, the fence was mended at that point.
21 Q. Right. So it had been open from August to December?
22 A. Well, when you say open --
23 Q. It was open in December? Let's say that.
24 A. The fence that was pointed out was actually not open. It
25 was actually where it was -- where we were informed that this
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1 was the entry point of the folks was actually pulled back
2 together, but it was with plastic ties or something.
3 So it wasn't the actually -- what you should see is like
4 a metal connection to the fence. Just remember the fence, its
5 job is to hold up that No Trespassing sign, not to keep people
6 out.
7 Q. You'd indicated that these -- your hope is that these
8 weapons would never be used. I don't know if that's your
9 personal hope, but the job at Y-12 is to make sure that if
10 they are used, that they have full capacity to do what they're
11 intended to do; is that correct?
12 A. Well, the mission of Y-12 is to ensure that the -- what
13 we do is of high quality and to provide reliable components
14 and parts to the weapon so that it will be reliable.
15 Q. And the Y-12 provides the work on the secondaries that
16 are used in the Trident submarine weapons as well, the nuclear
17 weapons on those submarines?
18 A. So the W76 is the Trident weapon.
19 Q. Okay.
20 MR. QUIGLEY: Can I just check with my people to see
21 if I have some questions?
22 THE COURT: Yes, absolutely.
23 (Mr. Quigley conferred with counsel and Defendant Walli.)
24 THE COURT: Mr. Lloyd, are you going next, or Mr.
25 Boertje-Obed?
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1 DEFENDANT BOERTJE-OBED: Not me.
2 THE COURT: I'm sorry, Mr. Boertje-Obed, is it you?
3 DEFENDANT BOERTJE-OBED: No.
4 THE COURT: Oh, Mr. Lloyd.
5 MR. QUIGLEY: Could we approach for one second, Your
6 Honor, please?
7 THE COURT: Yes.
8 (Sidebar conference as follows:)
9 MR. QUIGLEY: I just wanted on the record to reserve
10 our objections that we would like to go further into the
11 manufacture of the weapons, the impact of the weapons, the
12 effects of the weapons and that with either this witness or
13 additional witnesses. Just putting it on the record.
14 THE COURT: I'm not sure I'm following. When were
15 you stopped from going into some of that?
16 MR. QUIGLEY: Well, when I started to ask about the
17 treaty, this gentleman said he didn't know about that.
18 THE COURT: Well, he can't answer about things he
19 doesn't know about.
20 MR. QUIGLEY: Okay.
21 THE COURT: If you want to object on that ground,
22 that's fine.
23 MR. THEODORE: I think he's suggesting, like his
24 prior objection, he wants to try to introduce other extrinsic
25 witness evidence, like witnesses like Ramsey Clark, to rebut
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1 this. Is that what you're --
2 THE COURT: Before I release this witness, I want to
3 understand, is there anything you want to ask this witness
4 that you're being prevented from asking?
5 MR. QUIGLEY: Maybe I misunderstood so I'm going to
6 ask about the impact of weapons when used.
7 THE COURT: Okay. He's already testified to that.
8 The U.S. asked that too. Okay. Go ahead.
9 (Sidebar conference concluded.)
10 BY MR. QUIGLEY:
11 Q. Sir, I wanted to ask you a couple more questions about
12 the impact of nuclear weapons when and if used on individuals.
13 You would agree that the use of nuclear weapons at Hiroshima
14 killed tens of thousands of people, wouldn't you?
15 A. Yes, sir.
16 Q. Okay. And you would agree that the use of weapons at
17 Nagasaki killed tens of thousands of people, wouldn't you?
18 A. Yes, sir.
19 Q. You would agree that the use of those weapons sent out a
20 fire ball and shock waves and contamination that harmed
21 hundreds of thousands of other people as well, wouldn't you?
22 A. Yes, sir.
23 Q. And wouldn't you agree that those are the exact same
24 things that would happen if any of the weapons that are being
25 refurbished and manufactured, upgraded at Y-12, if those are
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1 ever used, that they would have the same impacts on a civilian
2 center?
3 A. If used in that manner, yes, sir, they'd be similar.
4 Q. Okay.
5 MR. QUIGLEY: I have no further questions, Your
6 Honor.
7 THE COURT: Okay. Mr. Lloyd.
8 CROSS-EXAMINATION
9 BY MR. LLOYD:
10 Q. Good morning, sir.
11 A. Good morning, sir.
12 Q. Is it Dr. Erhart?
13 A. No, sir.
14 Q. Mr. Erhart, I'm Francis Lloyd. I'm here for Sister Megan
15 Rice. I have some questions for you. I want to ask you
16 questions about how things were structured out at Oak Ridge on
17 July 28, 2012. If I understand correctly, the National
18 Nuclear Security Administration is within the Department of
19 Energy, correct?
20 A. Yes.
21 Q. So when the president has a cabinet meeting, there's a
22 Secretary of Energy there but not an administrator of NNSA?
23 A. That's correct.
24 Q. Okay. The administrator of NNSA reports to the
25 department -- to the Secretary of Energy?
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1 A. Yes, sir.
2 Q. All right, sir. Now, is it fair to say you're Mr. NNSA
3 in Oak Ridge?
4 A. Yes, sir.
5 Q. You're the highest ranking officer of NNSA at this site,
6 correct?
7 A. Yes, sir.
8 Q. And that was also true on July 28, 2012, wasn't it?
9 A. Yes, sir.
10 Q. All right. Now, you talked a little bit earlier about
11 the history of Y-12, and I shall try very much not to plow --
12 again plow ground, but I didn't hear you say -- in the '40s,
13 there wasn't a Department of Energy, was there?
14 A. No, sir.
15 Q. It was either the Department of Defense or War
16 Department, correct?
17 A. I believe the Manhattan Project was out of the War
18 Department, yes, sir.
19 Q. Staffed by military personnel?
20 A. I believe it was through the Corps of Engineers and
21 General Groves of the Army, the U.S. Army, sir.
22 Q. And protected by soldiers of the United States Army at
23 that time?
24 A. I assume so, sir.
25 Q. But you don't know?
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1 A. Are you asking what was the security and who provided it
2 in the Manhattan Project?
3 Q. I'm just asking whether, during the '40s, Y-12, the Y-12
4 site was guarded by soldiers of the Army.
5 A. I'm not sure.
6 Q. So that's not something within the scope of what you're
7 required to know as the head on site of NNSA, correct?
8 A. That's correct.
9 Q. All right, sir. Now, if we come forward to July 2012, as
10 you've already said, NNSA is there, right? It's not the Army
11 anymore, correct, at Y-12?
12 A. NNSA is there at 2012, yes, sir.
13 Q. Okay. There's you and how many others?
14 A. Well, from the federal staff, there's 84. On the
15 contractor side, there's -- I'm estimating 4,500 contractor
16 personnel on that morning.
17 Q. Now, I'm glad you brought up contractors. I wanted to
18 ask you about this. In July of 2012, did -- how about if I
19 use DOE/NNSA together. Can I do that? Because I don't know
20 the technical sides of these contracts, but did DOE/NNSA have
21 a contract with B&W Y-12 to operate Y-12?
22 A. Yes, it's called a management and operating contract,
23 yes, with B&W Y-12.
24 Q. And that's a partnership between two privately owned
25 companies; is it not?
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1 A. Yes, sir.
2 Q. Still there today?
3 A. B&W Y-12?
4 Q. Yes.
5 A. Yes, sir.
6 Q. You correct me if I'm wrong, but everything at Y-12 is
7 the government's, and the contractor runs it, gets paid for
8 running it, and then makes a profit, correct?
9 A. The -- if you say the profit being the award fee as a
10 result, you know, depending on how they perform, then I would
11 agree with your statement.
12 Q. So they might make money or they might lose money? Is
13 that right?
14 A. The -- well, the LLC is a limited liability company, and
15 so the only -- I guess the extra money that that company can
16 earn is in the form of a fee for performance. So all the
17 other -- it's a cost reimbursement contract. So the cost of
18 doing the work at the Y-12 plant is paid for by the
19 government.
20 Q. And if you know, B&W Y-12 is not there to lose money, is
21 it?
22 A. I assume not, sir.
23 Q. It's a for-profit limited liability company, isn't it?
24 A. I'm not sure of the technical term, but like you said,
25 the companies compete for the contract and then there is the
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1 possibility of earning fee based on performance. So --
2 Q. If you cut costs and do well, you can make money in this
3 contracting business; is that fair?
4 A. I didn't follow the whole -- if you cut costs and do
5 well?
6 Q. Just like any business, sir, if I keep my cost down and
7 my revenue high, do I make money?
8 A. Unless there's an incentive in the contract for
9 additional fees to be paid for cost savings, then no, that's
10 not accurate. Like I said, it's a cost reimbursement
11 contract. So the government pays for the cost of running the
12 site. The fees earned are basically earned based on what they
13 are able to do in the pre agreed-upon space of the contract.
14 Q. Okay. Let's move on. On July -- or in July of 2012, was
15 there another contractor or subcontractor at Y-12?
16 A. Yes, sir.
17 Q. And was one of those or maybe the only one WSIOR?
18 A. Wackenhut, WSI, the Wackenhut company was the contractor
19 that ran the protective force on Y-12 on July 28.
20 Q. And by protective force, we're talking about security
21 officers, right?
22 A. Yes, sir.
23 MR. LLOYD: All right, sir. Your Honor, may I step
24 away for a little bit of water?
25 THE COURT: You may.
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1 MR. LLOYD: Thank you. I'm going to invade
2 co-counsel's table here because I saw a sign that said no
3 water near this equipment.
4 THE COURT: Okay.
5 BY MR. LLOYD:
6 Q. So the job -- now, did Wackenhut -- I'm going to call
7 WSIOR Wackenhut.
8 A. That's fine.
9 Q. WSIOR was a subsidiary of a foreign corporation called
10 Wackenhut. Is that right?
11 A. I believe that's true.
12 Q. All right, sir. Did it have a contract with B&W Y-12 or
13 with NNSA to provide a protective force?
14 A. On the 28th and before that, it was a direct contract to
15 the NNSA so it was not -- the Wackenhut contract was not a
16 subcontract under B&W.
17 Q. Okay. So --
18 A. It is now but not then.
19 Q. So another for-profit company reported directly to you
20 concerning security at Y-12, correct?
21 A. So it's important to note that there's many aspects of
22 security. So the protective force, which is the guards and
23 guns and some of the training, et cetera, is the -- make up
24 the protective force. That service was a direct contract to
25 the NNSA, at the time the Y-12 site office.
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1 And then the rest of the security, which is vulnerability
2 assessment, modeling, you know, postulating the threat
3 essentially and analyzing that, passing directions in that
4 regard to the pro force is part of the -- was, at the time,
5 part of the B&W scope of work under security.
6 Q. So both contractors had responsibility on this day,
7 July 28, 2012, for aspects of security, correct?
8 A. That's correct.
9 Q. They were both for-profit companies, correct?
10 A. Yes, sir.
11 Q. All right. They're not -- they weren't there to do this
12 work out of the kindness of their hearts; is that fair?
13 A. They were under contract with the government, yes, sir.
14 Q. All right, sir. Now, is Wackenhut there now?
15 A. No, sir.
16 Q. You fired them, did you?
17 A. What was done as a result of the investigation, the --
18 both contractors, actually, were put under show cause notices,
19 which basically means they needed to show cause as to why the
20 government would continue in their -- with their contracts.
21 The resultant of that review was that Wackenhut -- well,
22 first of all, let me back up a little bit. The immediate
23 actions after the event were to take the Wackenhut contract
24 and create a subcontract under B&W first, and that was because
25 of the -- we talked about before, the gaps in communication
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1 between those two entities managing different parts of
2 security and missing -- creating a gap that was not healthy.
3 And then if you fast forward, then later on, after both
4 contracts were -- contractors were put under show cause and we
5 reviewed their response, it was decided to terminate the
6 Wackenhut contract and to basically assume that scope of work
7 underneath the B&W contract. So today, all of the protective
8 force and all elements of security are part of the B&W
9 contract.
10 Q. Is it fair to say that WSIOR failed to show cause, and
11 you showed WSIOR the door? Is that a summary?
12 A. If you will. Yes, sir.
13 Q. All right, sir. As a result of that, did people who had
14 worked in the protective force or pro force lose jobs?
15 A. Well, most of the folks came over to the B&W contract.
16 It was made available. Of course, they made offers so when
17 you move between contracts, there's offers made. The vast
18 majority of folks were offered a position. Some, I believe --
19 I don't know the numbers, but some people chose to stay with
20 Wackenhut or seek other employment. But I would say the vast
21 majority of personnel on the protective force, you know,
22 willingly went over and assumed similar duties under the B&W
23 contract.
24 Q. Mr. Erhart, accidents happen, don't they?
25 A. That's a fact, sir.
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1 Q. We're all fallible, aren't we?
2 A. Absolutely, sir.
3 Q. And sometimes in government and business, we use the
4 phrase "mistakes were made," don't we?
5 A. Yes, sir.
6 Q. All right, sir. As a matter of fact, this very case
7 we're here about today highlights multiple mistakes with
8 respect to the security of Y-12, doesn't it?
9 A. Indicates we had systemic issues, and there were mistakes
10 made, yes, sir.
11 Q. All right, sir. Just briefly, I don't want to dwell on
12 this because Professor Quigley knows the subject matter far
13 more than I do, but mistakes can be made with nuclear weapons
14 too, can't they?
15 A. Mistakes can be made anywhere, sir.
16 Q. All right, sir. Is there a nuclear bomb somewhere on the
17 bottom of the ocean because it was dropped by mistake?
18 A. I'm not sure which event you're talking about, but I've
19 heard that to be true.
20 Q. All right, sir. Have you also heard that there's been at
21 least one occasion in which, due possibly to navigator or
22 pilot error, that an airplane loaded with at least one nuclear
23 weapon flew over the surface of the continental U.S.?
24 A. Are you speaking of a fairly recent event involving --
25 Q. I'm just asking if you're familiar with that.
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1 A. Give me the context again?
2 Q. A flyover of the continental U.S. by an American military
3 aircraft containing a nuclear weapon. Did that happen?
4 A. Well, remember in the Cold War, that was typical with
5 nuclear weapons on alert. Since then, we don't -- they don't
6 transport nuclear weapons by aircraft. Not supposed to. This
7 event I believe you're speaking of was a mistake that -- where
8 a weapon was loaded on an aircraft, and one that was thought
9 not to be a nuclear weapon was actually a nuclear weapon and
10 flown over the United States or a portion of the United
11 States. I believe that's accurate, sir.
12 Q. So it is possible, given our fallibility, our mutual
13 fallibility, that a mistake could create the same sort of
14 extensive harm Professor Quigley was asking you about? That
15 is possible, isn't it?
16 A. Well, I guess everything to some degree is possible. I
17 will say the probability, if we're talking about an
18 inadvertent nuclear detonation, a full-out weapon, is
19 extremely improbable.
20 Q. Before July 28, 2012, would you have said that it was
21 extremely improbable that three people, including an
22 82-year-old nun, would end up standing next to a highly
23 enriched uranium manufacturing facility?
24 A. As I stated before, I was quite surprised, yes, sir.
25 Q. Again, I'm sorry if I'm plowing ground that's already
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1 plowed, but just a couple brief questions. Is it correct that
2 every weapon in the United States nuclear arsenal has
3 components that were made, maintained, or dismantled at Y-12?
4 A. That's accurate.
5 Q. Is it also accurate that although the current number of
6 nuclear weapons is classified, the Department of Defense
7 released the historical stockpile quantities as of
8 September 30, 2009, the United States' stockpile of nuclear
9 weapons consisted of 5,113 warheads?
10 A. I can't testify to the truth of that.
11 Q. If it's on an NNSA website, would you recognize it?
12 A. Sure would.
13 Q. All right, sir.
14 MR. LLOYD: May I approach, Your Honor?
15 THE COURT: You may. Do you have it, Mr. Lloyd?
16 MR. LLOYD: I have it right here, Your Honor. I'm
17 taking it apart. I'm sure my pleadings index will end up a
18 mess.
19 THE COURT: Just keep it moving.
20 MR. LLOYD: I shall, Your Honor.
21 BY MR. LLOYD:
22 Q. Mr. Erhart, for the record, I'm showing you a two-page
23 document that has at the top of the first page National
24 Nuclear Security Administration, and I am directing your
25 attention to the bottom of the first page and asking you
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1 whether that refreshes your recollection of that information.
2 A. Yes, sir. This is from the NNSA website. I think what I
3 mentioned in my previous testimony were current stockpile
4 numbers. And whenever this was published, it was about 84
5 percent, down from our peak. So that's accurate, yes, sir.
6 Q. All right, sir. Fair to say still enough to destroy
7 civilization? I understand the stockpile's down.
8 A. I can't speculate. I don't know how to answer that
9 question. The total yield of that number of weapons would be
10 devastating.
11 Q. To the world?
12 A. Still a devastating amount.
13 Q. All right.
14 MR. LLOYD: May I approach again to retrieve that?
15 THE COURT: You can get it when we're done. Keep it
16 moving.
17 MR. LLOYD: Thank you, Your Honor.
18 BY MR. LLOYD:
19 Q. Are you personally embarrassed by what's happened that
20 brought about this case?
21 MS. KIRBY: Objection, Your Honor. Relevance.
22 THE COURT: Sustained.
23 MR. LLOYD: Does it go to impeachment, Your Honor?
24 THE COURT: You can answer one question, then you're
25 moving on. Are you embarrassed by what happened?
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1 THE WITNESS: It was an embarrassment for the Y-12
2 plant, the good people that worked there. It was an
3 embarrassment, you know, for the NNSA and the DOE. But it --
4 also impressive, equally impressive was the people pulling
5 together to fix the problems.
6 So like I testified earlier, the security of Y-12 has
7 never been stronger, and I -- whether or not I'm personally
8 embarrassed, it's the -- I'm just impressed with the folks
9 that pulled together to really do a great job there.
10 BY MR. LLOYD:
11 Q. I'm sorry, but you didn't answer my question.
12 A. Well, I speak for the NNSA, and it was an embarrassment
13 in that it affected our credibility.
14 Q. Does it affect the security of your position with NNSA?
15 A. The security of my position is at the discretion of my
16 management. So it did not.
17 Q. During the shutdown you referred to earlier, did I hear
18 you say one aspect of that was that the material, the enriched
19 uranium was left in its most secure place?
20 A. Yes, sir.
21 Q. And I believe you also testified that you do not know
22 whether Y-12 has caught up to where it would have been but for
23 this incident?
24 A. The schedules in general have been recovered, but I
25 didn't want to misstate -- the potential is that there's
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1 something that was not caught up. I didn't want to be so bold
2 as to say everything was caught up. But the general statement
3 is that we've, since then, by and large, recovered the lost
4 time of the 15-day stand-up -- stand-down, excuse me.
5 Q. All right, sir. Now, I want to ask you just a few
6 questions, wrapping up, about the site itself. And just so I
7 don't have to keep repeating the date, let's talk about the
8 site as it existed on July 28, 2012.
9 A. Okay.
10 Q. All right, sir? The defendants first had to come through
11 a wire fence at the 229 boundary, correct?
12 A. Yeah. The 229 boundary fence, about 19 miles of fence
13 line, it consists of chain link and three-strand barbed wire
14 or three-strand wire -- I don't think it's barbed wire -- that
15 holds up the No Trespassing sign. So that's the first area
16 where the defendants would encounter sign indicating that no
17 trespassing is allowed.
18 Q. And that's the fence we're talking about that was not
19 repaired until December, is that correct, of 2012?
20 A. The area where they came through was actually -- well,
21 where we believe they came through was chain link fence. So
22 if that's the area that you're talking about, that's correct.
23 Like I said before, there is indication that it was -- that
24 the fence was cut and then repaired. I'm sorry. Does that
25 answer your question?
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1 Q. Yes, sir. And it's not a barbed wire fence, correct?
2 A. That's correct.
3 Q. Is it fair to call it just a demarkation of the property
4 line?
5 A. That's its intent, sir.
6 Q. Now, between that first fence and the next three, on the
7 date we're talking about, would the defendants have
8 encountered any missile launching systems?
9 A. No, sir.
10 Q. Any silos?
11 A. No, sir.
12 Q. Any tanks?
13 A. No, sir.
14 Q. Is it fair to say that while they crossed that ridge to
15 come down into the valley where Y-12 sits, they would have
16 been in a wooded area with nothing but brush and trees in it?
17 A. The area you're talking about is heavily wooded brush and
18 trees, yes, sir.
19 Q. All right, sir. And you've already testified there's a
20 three-fence system between where you come off that ridge and
21 the HEUMF, correct?
22 A. That's correct.
23 Q. All right, sir. Now, was a hole drilled into HEUMF?
24 A. By -- no, sir.
25 Q. All right. Did any of these three defendants handle
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1 anything that was in that HEUMF?
2 A. -- no, sir.
3 Q. Did any of these defendants knock down a door at the
4 HEUMF?
5 A. No, sir.
6 MR. LLOYD: Your Honor, if I might have just a moment
7 to consult with my client, we'll be finished.
8 THE COURT: Ladies and gentlemen, I know we're past
9 12:30. I'm trying to finish up cross. Then we'll break once
10 we finish up cross. It will be still an hour break, but I
11 think it will be beneficial.
12 (Mr. Lloyd and Defendant Rice conferred.)
13 BY MR. LLOYD:
14 Q. Couple more questions, Mr. Erhart. I think we've all
15 referred to HEUMF as the Fort Knox of enriched uranium,
16 correct?
17 A. I've heard it referred to as that, yes, sir.
18 Q. Nothing missing from that uranium as a result of this
19 accident -- or incident, was there?
20 A. That's correct.
21 Q. All right, sir.
22 MR. LLOYD: That's all I have, Your Honor. Thank
23 you.
24 THE COURT: Okay. Thank you. Mr. Boertje-Obed?
25 DEFENDANT BOERTJE-OBED: I have no questions.
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1 THE COURT: Thank you, sir. All right, ladies and
2 gentlemen. Why don't we break for lunch, if you all are
3 ready. Otherwise, we'll allow redirect, but I was thinking
4 we'd break and then do redirect and move on to the next
5 witness. Everyone fine with that?
6 All right. So have a nice lunch. Don't talk about
7 the case, and I will see you back here at 1:45.
8 (The jury left the courtroom at 12:45 p.m.)
9 THE COURT: Before lunch, Miss Kirby or Mr. Theodore,
10 anything we need to take up on behalf of the United States?
11 MS. KIRBY: Nothing further at this time.
12 THE COURT: Mr. Irwin?
13 MR. IRWIN: Nothing, Your Honor.
14 THE COURT: Mr. Lloyd?
15 MR. LLOYD: No, Your Honor.
16 THE COURT: Mr. Boertje-Obed?
17 MR. HUTSON: Your Honor, I believe we have one matter
18 that may be best if we approached on.
19 THE COURT: Okay.
20 (Sidebar conference as follows:)
21 DEFENDANT BOERTJE-OBED: I would ask if Juror 256
22 could be moved to an alternate juror position because we
23 noticed he fell asleep several times since we addressed the
24 issue.
25 MR. THEODORE: I did notice him sleeping too.
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1 MR. IRWIN: I noticed he was sleeping too, Your
2 Honor.
3 THE COURT: I'm just going to make him the last
4 alternate and move the first alternate into one of that
5 juror's spot, okay? So he'll move to the last alternate
6 because we randomly put them in. I think 239, by memory, was
7 the first alternate.
8 DEPUTY CLERK: 232.
9 THE COURT: My memory is not great. So 232, so that
10 will become an active juror, and 256 will become an alternate.
11 Anything else?
12 MR. IRWIN: What time do you want us back, Your
13 Honor?
14 THE COURT: Unless you have something you want to
15 take up, 1:45. What I don't want you to do is what happened
16 earlier, which is come in and then when the jury's ready to
17 come in, you all bring things up. So you all tell me. If you
18 have anything to take up, let's take it up now so you all
19 don't have to rush back.
20 MR. IRWIN: I have nothing, Your Honor.
21 MR. THEODORE: I was going to ask that we were going
22 to ask that the Court take judicial notice that Y-12 is a
23 nuclear weapons production facility. It's defined by statute,
24 and I can give the Court the statute which defines it. Y-12
25 is a nuclear weapons production facility.
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1 THE COURT: I don't think the defendants object to
2 that, do you?
3 MR. LLOYD: (Nodding negatively).
4 THE COURT: They don't object, so I'm fine --
5 MR. THEODORE: Okay.
6 THE COURT: -- saying that on the record. Anything
7 else?
8 MR. HUTSON: Nothing, Your Honor.
9 THE COURT: I'll see you at 1:45. Remember, in the
10 future, if you have anything to bring up, bring it up before
11 the time I mark for the jury coming in.
12 MR. HUTSON: Thank you.
13 (Sidebar conference concluded.)
14 THE COURT: Thank you all. Have a nice lunch.
15 (Recess from 12:48 p.m. until 1:44 p.m.)
16 THE COURT: Counsel, welcome back -- and everyone
17 else -- from lunch.
18 Mr. Quigley, I want to make sure that -- you said
19 something that puzzled me at the Bench, and so I just want to
20 make sure that you're not under some type of misunderstanding
21 as to my rulings in this case or maybe there's rulings I'm not
22 aware of that you can enlighten me on.
23 All I excluded was the defenses themselves of just
24 stating the defenses, as I'm going to call them, as a
25 category. But the necessity and Nuremburg, I did not exclude
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 129 of 315 PageID #: 1659 ERHART - Cross 130
1 your ability to test the evidence in this case by any means
2 that you see fit.
3 So, of course, if the government's calling something a
4 national defense premises, and you disagree, you're welcome to
5 test the elements.
6 MR. QUIGLEY: I understand, Your Honor.
7 THE COURT: Okay, great. Let's call the jury in.
8 Miss Kirby, are you ready with redirect?
9 MS. KIRBY: I believe Mr. Boertje-Obed is ready.
10 DEFENDANT BOERTJE-OBED: No questions.
11 MS. KIRBY: We're ready, Your Honor.
12 THE COURT: He said no questions. And you're ready
13 with your next witness?
14 MS. KIRBY: Yes, Your Honor.
15 (The jury entered the courtroom at 1:47 p.m.)
16 THE COURT: Welcome back, ladies and gentlemen. I
17 hope you had a nice lunch. Miss Kirby, you may proceed.
18 MS. KIRBY: Thank you, Your Honor.
19 REDIRECT EXAMINATION
20 BY MS. KIRBY:
21 Q. Good afternoon, Mr. Erhart.
22 A. Good afternoon.
23 Q. Was real harm caused to Y-12 because of the defendants'
24 breach?
25 A. Yes.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 130 of 315 PageID #: 1660 ERHART - Cross 131
1 Q. Can you articulate?
2 A. Well, the physical harm to the premises, the fences and
3 some of the sensors were damaged. The -- so real in the sense
4 of real property damage, certainly. Real in the sense of,
5 like I testified earlier, the delays caused in the necessity
6 to secure the plant, to fully evaluate whether or not we had a
7 worse scenario or other perpetrators, the training associated
8 with having to go back and do those things. And I mentioned
9 earlier in my testimony regarding the harm to the credibility
10 of the NNSA, the department and the country.
11 Q. Despite whatever security issues there may have been on
12 July 28, 2012 at Y-12, did the defendants come on to the
13 property uninvited?
14 A. Yes. Yes, they did.
15 Q. And did they destroy government property?
16 A. Yes, they did.
17 Q. What is the UPF?
18 A. That's uranium processing facility. It's a facility in
19 design phase currently, and it is a modern facility, much like
20 HEUMF. When it is built, it will be similar in its security.
21 It's intended to take a lot of the older -- well, it's to
22 replace a series of older buildings at Y-12. A lot of
23 buildings we're still in are Manhattan Project era, 1940s and
24 '50s buildings. So it's to create a new building to put those
25 processes into, and the ultimate desire there is to limit
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 131 of 315 PageID #: 1661 ERHART - Cross 132
1 that -- when I showed on the map that PIDAS, that footprint is
2 pretty large, and that's because that system is very expensive
3 to maintain. So if we can relocate the majority of the
4 operations into the new uranium processing facility with a
5 connector to the HEUMF, and then redo the PIDAS around that
6 new complex, it will greatly reduce the amount of real estate
7 that's necessary to secure at that highest level we talked
8 about earlier.
9 Q. What event ended World War II?
10 A. I believe the bombings that we spoke of earlier,
11 Hiroshima and Nagasaki, I believe, are primary to that.
12 Q. Do you have any idea how many American lives were saved
13 by the use of the bomb in that particular instance?
14 A. I've heard various estimates as to --
15 MR. LLOYD: Objection, Your Honor. Speculation.
16 THE COURT: Sustained.
17 BY MS. KIRBY:
18 Q. How long had you been on site at the Y-12 site at your
19 current position when this incident took place?
20 A. Ten days.
21 Q. I believe it was during Mr. Lloyd's examination, he
22 mentioned several incidents where there maybe were some
23 nuclear materials that were mishandled. Is it part of Y-12's
24 mission to avoid any kind of mistakes with nuclear weapons,
25 and can you describe that?
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1 A. Certainly, it's -- the safe, secure operations and the
2 mission in the area of mission that we discussed earlier is
3 our primary concern. So nuclear safety, personnel safety,
4 safety of the environment and of the public are what we care
5 about.
6 So getting the mission done without those things being in
7 an excellent level is not good. We don't get any credit for
8 getting work done but doing it unsafely. So that's the goal.
9 And to have accidents and incidents in this -- as this
10 one was, it wasn't as bad as it could have been, but it was
11 bad enough because of where they -- where the folks were able
12 to get. Not acceptable in the line of work that we're in.
13 Very high consequence work that we're in.
14 Q. Are there any security vehicles that patrol between the
15 229 boundary and the PIDAS beds?
16 A. Yes, there are random patrols in that area. We also have
17 K-9 patrols which are there to look for human scent up on that
18 ridge line, yes.
19 MS. KIRBY: Just one moment, Your Honor.
20 (Ms. Kirby and Mr. Theodore conferred.)
21 MS. KIRBY: I have no further questions of this
22 witness.
23 THE COURT: May this witness be excused?
24 MR. IRWIN: I have no objection, Your Honor.
25 MR. LLOYD: No objection, Your Honor.
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1 DEFENDANT BOERTJE-OBED: No objection.
2 THE COURT: Okay. Thank you, sir. You're free to
3 go. Please call your next witness.
4 MR. THEODORE: Yes, Your Honor. Government calls
5 Sergeant Chad Riggs to the stand.
6 SGT. CHAD T. RIGGS, GOVERNMENT'S WITNESS, SWORN
7 DEPUTY CLERK: Please be seated. Speak into the
8 microphone. State and spell your name for the record, please.
9 THE WITNESS: Sergeant Chad T. Riggs, C-h-a-d,
10 R-i-g-g-s.
11 DIRECT EXAMINATION
12 BY MR. THEODORE:
13 Q. Good afternoon.
14 A. Yes, sir.
15 Q. Can you state your name, please?
16 A. Sergeant Chad T. Riggs.
17 Q. And what is your occupation?
18 A. I'm a sergeant of the protective force at the Y-12
19 National Security Complex.
20 Q. Sergeant Riggs, could you keep your voice up a little
21 bit? I'm a little hard of hearing myself.
22 A. Yes, sir.
23 Q. You said you're a sergeant with the protective force at
24 Y-12?
25 A. Yes, sir, that's correct.
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1 Q. And how long have you worked there?
2 A. I've been at Y-12 for approximately eight years, sir.
3 Q. And have you been a sergeant that entire time?
4 A. No, sir. It's been the past two and a half years, sir.
5 Q. So you started off as a police officer --
6 A. Security police officer, yes, sir.
7 Q. Okay. What's your law enforcement experience, if there
8 is any, before you worked at Y-12?
9 A. Yes, sir. I have nine years of law enforcement
10 experience in the civilian world, the last five of which was
11 with the Knoxville Police Department.
12 Q. Okay. So what was your position there?
13 A. I left as a police officer one, a patrol officer.
14 Q. How about before that, Knoxville PD, where did you work?
15 A. I was with the University of Tennessee Police Department
16 for a year, the Knox County Sheriff's Office as a corrections
17 officer for about six months, and the City of LaFollett Police
18 Department for two years prior to that.
19 Q. And again, how long have you been working at Y-12?
20 A. Eight years, sir.
21 Q. Eight years. Were you on duty working on July 28, 2012?
22 A. Yes, sir, I was.
23 Q. I want to direct your attention to the early morning
24 hours of that day. Can you -- did anything unusual happen
25 then?
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1 A. Yes, sir. I was in my office at that time in the trailer
2 office, and I received a phone call from my supervisor stating
3 that I needed to see SPO Garland on the north side of the
4 HEUMF, that he had something going on there.
5 Q. Okay. And the name you mentioned was Police Officer
6 Garland?
7 A. Yes, Security Police Officer Kirk Garland.
8 Q. Okay. Did you respond to that scene?
9 A. I did, yes, sir.
10 Q. And what did you see when you got there?
11 A. As I pulled my Tahoe around the northeast corner of the
12 HEUMF, I identified the tail end of Officer Garland's Tahoe,
13 as well as three persons standing near the north side of the
14 HEUMF.
15 Q. Now, you said that HEUMF, the Highly Enriched Uranium
16 Materials Facility building; is that correct?
17 A. That is correct, sir.
18 Q. What is that? I mean, just generally, just as a security
19 officer?
20 A. It is a building that is hardened and set up with
21 particular security measures to protect enriched uranium.
22 Q. What's the security level of that level?
23 A. It's a high security area, sir.
24 Q. And is that an enclosed area?
25 A. It is, yes, sir.
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1 Q. How is that enclosed?
2 A. There's a PIDAS fence around the exterior, three fences
3 and gravel, including a varied array of sensors and cameras.
4 And the building itself is a hardened concrete building with
5 certain protective measures.
6 Q. When you got there, you said you saw Officer Garland's
7 vehicle already there?
8 A. Yes, sir.
9 Q. What was your impression, your first impression when you
10 arrived at that location?
11 A. I did find his vehicle first because the lights were on.
12 And then when I saw those people, I continued to scan the
13 scene as I was approaching in my vehicle. And I saw some
14 graffiti on the wall to my left, which would be the north face
15 of the HEUMF, as well as something splattered, a liquid
16 substance across the wall there.
17 Q. Could you tell what was happening or what had happened?
18 A. It appeared -- it was obviously a vandalism type
19 situation. To me, from a law enforcement background, it
20 appeared to be vandalism.
21 Q. Okay. Let me ask you this. In your time being a
22 security officer at Y-12, had you ever encountered that type
23 of a situation at Y-12?
24 A. No, sir, I have not.
25 Q. From what you saw initially, with respect to -- you said
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 137 of 315 PageID #: 1667 RIGGS - Direct 138
1 you saw three suspects there, correct?
2 A. That is correct, yes.
3 Q. And you saw Officer Garland there?
4 A. I did, yes, sir.
5 Q. After you arrived there, did you do anything different at
6 that time?
7 A. Yes, sir. I immediately exited my vehicle, barely
8 touching the brakes. I jumped out of the vehicle and
9 immediately ordered the three suspects to the ground.
10 Q. Did you do anything as far as any calls or anything like
11 that?
12 A. Once I had them on the ground and separated from a pile
13 of gear that they were at, to make the scene safer for myself
14 and Officer Garland, I called Lieutenant Baldwin to tell him
15 that we had some kind of situation there. Appeared to be
16 intruders in the protected area.
17 Q. At some later point in time, did you learn the identities
18 of the three people that were there?
19 A. Yes, sir, I did.
20 Q. Okay. And what were their identities?
21 A. Mr. Walli, Miss Rice, and a Mr. Boertje-Obed.
22 Q. Do you see them in this courtroom right now?
23 A. I do.
24 Q. Okay. Could you just briefly describe where you see
25 them?
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1 A. Mr. Walli is sitting at this chair here in the white
2 shirt, striped overshirt.
3 Q. Next to Mr. Irwin?
4 A. Miss Rice is over here in the purple hoodie. Mr.
5 Boertje-Obed is over there in the blue t-shirt.
6 MR. THEODORE: Your Honor, may the record reflect
7 that the witness has identified the defendants?
8 THE COURT: It may.
9 BY MR. THEODORE:
10 Q. So you said you actually had them -- you had them get on
11 the ground?
12 A. I did, yes, sir.
13 Q. Did you do anything else to them at that time?
14 A. I immediately -- well, I started with verbal commands.
15 Let me see your hands, get on the ground. And I separated
16 them from their gear. While they were on the ground, they had
17 to call crawl away from their gear, because their gear could
18 potentially have weapons in it.
19 Q. Did you restrain them in any way?
20 A. At that point, no. It was just me and Officer Garland
21 and that's three-to-two odds, and I didn't want to operate
22 that way.
23 Q. At some point, did you do anything as far as putting any
24 restraints on them?
25 A. Yes, sir. I called for more ground units, and I received
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 139 of 315 PageID #: 1669 RIGGS - Direct 140
1 two more SPOs. At that point, using contact and cover, we
2 restrained, patted them down, and used flex cuffs to secure
3 them.
4 Q. I want to show you on the monitor here --
5 MR. THEODORE: And Your Honor, I'm showing him
6 Government's Exhibit Number 3, and I believe the defense has
7 agreed, stipulated to the admissibility of this.
8 THE COURT: Any objection to its admission?
9 MR. IRWIN: Your Honor, no. But if that's what I
10 think it is, we would like under 106 to have it played in its
11 entirety.
12 MR. THEODORE: That's fine, Your Honor. We have
13 another disk in which that can be accomplished by Mr. Irwin.
14 MR. IRWIN: That's fine, Your Honor.
15 THE COURT: No objection to its admission?
16 MR. IRWIN: No, Your Honor.
17 THE COURT: Okay. It will be admitted, hearing no
18 objection.
19 BY MR. THEODORE:
20 Q. Do you recognize that on the screen there, Sergeant
21 Riggs?
22 A. I do, yes, sir.
23 Q. In fact, how do you recognize that?
24 A. It has my initials and the date that I viewed it in your
25 office.
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1 Q. So you actually -- you actually reviewed this?
2 A. I did, yes, sir.
3 Q. And is this a surveillance tape of the incident, of when
4 the defendants here were arrested?
5 A. Yes, sir, it is.
6 Q. Are you shown in this completely, or are there some other
7 parts in there as well?
8 A. Can you repeat?
9 Q. Are you in this surveillance tape the entire time, or are
10 there other portions where you're not depicted?
11 A. There are other portions of it. I'm in part of it.
12 MR. THEODORE: Your Honor, I'd like to publish this
13 to the jury and play it at this time.
14 THE COURT: Any objection?
15 MR. LLOYD: No, Your Honor.
16 THE COURT: Hearing none, you may. Are you playing
17 it in its entirety?
18 MR. THEODORE: No, this was going to be a -- more of
19 a summary.
20 THE COURT: Okay.
21 MR. THEODORE: Your Honor, is it okay if I ask the
22 witness some questions while it's playing?
23 THE COURT: Absolutely.
24 (Government's Exhibit 3 is played in open court.)
25 BY MR. THEODORE:
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 141 of 315 PageID #: 1671 RIGGS - Direct 142
1 Q. That first area that we're showing there, Sergeant Riggs,
2 what is that showing on the screen?
3 A. That's the PIDAS zones on the north side of the HEUMF.
4 That camera is on the northeast corner of the HEUMF.
5 Q. So these rows there, are these -- it looks like there's
6 some rows there?
7 A. That's what's called the PIDAS bed. There's three fences
8 there; one on the inside, one in the middle, one on the
9 exterior.
10 Q. Okay. At some point -- you have watched this -- does it
11 appear to show some movement within those fences at some
12 point?
13 A. Yes, sir. In the upper left-hand corner there, you can
14 see some movement right now.
15 Q. Very small?
16 A. Yes, that's correct.
17 Q. Where you see some movement, see if you can draw on that
18 screen if you touch it. You might be able to circle the area.
19 Right by there?
20 A. Yeah, and they're moving here into the other section of
21 fence right there.
22 Q. Okay. Is this the area you're describing?
23 A. Yes. That was the middle breach that was just made
24 there. You can see the person moving into the interior fence.
25 Q. Are you seeing movement right in this area?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 142 of 315 PageID #: 1672 RIGGS - Direct 143
1 A. Yes, sir. You've got two, actually, inside the PIDAS in
2 the exclusion area there, and you've got one more that looks
3 like possibly a lookout at the middle fence of the PIDAS
4 there.
5 THE COURT: Why does it keep going black?
6 MR. THEODORE: Your Honor, it's a redacted
7 surveillance tape. Just for the Court's information, this is
8 about 12 minutes.
9 BY MR. THEODORE:
10 Q. Whose vehicle is that?
11 A. That is SPO Garland's patrol Tahoe.
12 Q. Just so we're clear, that's Officer Garland right there;
13 is that correct?
14 A. Yes, sir, that's correct.
15 Q. And who are the other three individuals, based upon what
16 you learned later?
17 A. That's Mr. Walli, Miss Rice and Mr. Boertje-Obed.
18 Q. Sergeant Riggs, is that your vehicle there?
19 A. Yes, sir, that's my vehicle, and that is me with the door
20 open there.
21 Q. And so that is going to show you exiting?
22 A. Yes, sir.
23 Q. Is there anyone else in your vehicle?
24 A. No, sir.
25 Q. It's just you?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 143 of 315 PageID #: 1673 RIGGS - Direct 144
1 A. That's correct.
2 Q. All right. While it's going, can you describe what's
3 being shown there?
4 A. Yes, sir. I'm giving verbal commands for them to let me
5 see their hands and also trying to communicate what's going on
6 on the radio there.
7 Q. Are you communicating with Officer Garland?
8 A. Verbally, yes. I told him to -- well, actually, no, sir.
9 I'm telling them to get on the ground. My hand is on my
10 sidearm, partially drawn, and ordering them on the ground.
11 Q. Why are -- you have a firearm?
12 A. Yes, a sidearm, yes, a handgun.
13 Q. Why are you doing that at that point? Did you draw it on
14 them or just have it on your side?
15 A. It was drawn from the holster and at my side.
16 Q. So it wasn't pointed at them?
17 A. No.
18 Q. It looks like your hand's being pointed. That's your
19 other hand?
20 A. That is correct, yes.
21 Q. Why are you -- why do you have your firearm? Why do you
22 even --
23 A. It's in a depressed, lowered position at my side because
24 these are unknown people to me. I felt in danger.
25 Q. Why did you feel in danger?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 144 of 315 PageID #: 1674 RIGGS - Direct 145
1 A. It's apparent at that time that these three had breached
2 our facility, had performed criminal acts of vandalism.
3 There's obviously some sort of what appears to be blood, human
4 biological material all over the place, and I want to protect
5 myself and Officer Garland.
6 Q. Do you know if there's anybody else on the premises at
7 that time?
8 A. Yes, there is a number of SPOs that were assigned to the
9 HEUMF.
10 Q. I'm talking about with the defendants.
11 A. Oh, through training and experience, I assume there's at
12 least one more person. And we train that if there's a breach
13 like this, there's likely to be coverage from a high ground;
14 aka, a sniper. So I was concerned that there could be
15 potentially more adversaries.
16 Q. Is that just because it's an unknown intruder?
17 A. Exactly, yes, sir.
18 Q. You don't know exactly who they are at this time?
19 A. No, sir, I do not.
20 Q. Is Officer Garland doing something there?
21 A. Yes, sir. This is right after I directed him to cover me
22 so I could don my body armor and retrieve my primary weapon,
23 an M4 rifle. Once I did that, I told him to do the same once
24 I covered him.
25 Once we were suited up and protected with our armor and
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 145 of 315 PageID #: 1675 RIGGS - Direct 146
1 with our primary weapons, I directed him to approach Mr.
2 Walli, take him off to the side and secure him.
3 Q. Why did you do that?
4 A. Through my training and experience as a law enforcement
5 officer, I had a gut feeling he was the most dangerous one.
6 MR. THEODORE: Is that the conclusion of the tape?
7 Okay.
8 BY MR. THEODORE:
9 Q. How long did you stay at the scene after this incident
10 that we just watched?
11 A. I don't know exactly, but it was several hours, sir.
12 Q. And approximately what time was it when this occurred?
13 A. Between 4:30 and 5:00, I believe, sir.
14 Q. That's a.m., obviously?
15 A. Yes, sir, a.m.
16 Q. And so you stayed. Did it become light?
17 A. Yes, sir.
18 Q. Did you get a pretty good look at the area at that time?
19 A. Yes, sir.
20 Q. Were the defendants you just identified, were they still
21 in that area at that time?
22 A. Yes, sir, they were.
23 Q. Were they still secure?
24 A. That is correct, yes.
25 Q. Did you keep them on the ground like that the entire
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 146 of 315 PageID #: 1676 RIGGS - Direct 147
1 time?
2 A. No, sir. Once I received those other two units, we
3 handcuffed the other two suspects. And periodically, I would
4 have two of my SPOs go and help them stand up so they could
5 relax their legs and their arms.
6 Q. Any particular concerns you have --
7 A. Yes, sir. With my prior law enforcement training, I was
8 worried about positional asphyxia and in-custody death
9 situations. So I would let them up to let them stretch out,
10 get their circulation going.
11 Q. Anything else done?
12 A. Later on, we were able to obtain three chairs, and we
13 allowed them to sit in those chairs.
14 Q. That's, again, after it became light, correct?
15 A. That's correct, yes.
16 Q. I want to show you again --
17 MR. THEODORE: These have been admitted or been
18 agreed to be admitted, Your Honor, Government's Exhibits 39,
19 40, 41.
20 THE COURT: Any objection?
21 MR. IRWIN: No objection, Your Honor.
22 THE COURT: Hearing none, they'll be admitted.
23 MR. THEODORE: Can we switch devices?
24 BY MR. THEODORE:
25 Q. Do you recognize what is being depicted in that?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 147 of 315 PageID #: 1677 RIGGS - Direct 148
1 A. Yes, sir. That is Mr. Walli, the picture taken that
2 morning.
3 Q. Okay. Government's Exhibit 40, do you recognize that?
4 A. Yes, that's Miss Rice.
5 Q. And again, that's at the scene afterward?
6 A. That is correct, yes.
7 Q. And Government's Exhibit 41?
8 A. Mr. Boertje-Obed at the scene.
9 Q. Once it became light, did you get a pretty good view of
10 the entire area?
11 A. I did, yes, sir.
12 Q. And you mentioned initially, you saw what appeared to be
13 vandalism, I believe?
14 A. Yes, sir.
15 Q. Can you describe -- let me show you some exhibits here.
16 MR. THEODORE: Your Honor, 5 through 17, they've all
17 agreed to be admitted.
18 THE COURT: Any objection?
19 MR. IRWIN: No objection, Your Honor.
20 MR. LLOYD: No, Your Honor.
21 THE COURT: They'll be admitted.
22 BY MR. THEODORE:
23 Q. Let me show you Government's Exhibit Number 5. Do you
24 recognize that?
25 A. Yes, sir, that's some of the vandalism on the north wall
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1 of HEUMF.
2 Q. That's the same building that we just saw out there in
3 the surveillance video?
4 A. Yes, sir, that's correct.
5 Q. How is that done? Is that blood or paint?
6 A. That appeared to be from a spray paint can.
7 Q. It says Woe to an Empire of Blood?
8 A. That is correct, sir.
9 Q. Want to show you Government's Exhibit Number 6. Do you
10 recognize what's --
11 A. Yes, sir. That is blood splatter and black spray paint.
12 That is the northwest corner of the HEUMF.
13 Q. So what's this stuff here?
14 A. That's blood.
15 Q. That's blood?
16 A. That's blood splatter, yes, sir.
17 Q. Okay. Same building?
18 A. That is correct.
19 Q. HEUMF?
20 A. Yes, sir, that's correct.
21 Q. Want to show you Government's Exhibit Number 7. What's
22 depicted there?
23 A. That's more spray painted words on the northwest corner
24 of the HEUMF, as well as some caution tape there that they had
25 put up.
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1 Q. Is that like -- is that similar to crime scene tape?
2 A. It appeared to be, yes, sir.
3 Q. Is that something you put up there?
4 A. No, sir, we did not put that. That was there when I got
5 there.
6 Q. Apparently, that was put up by the defendants?
7 A. Yes, sir.
8 Q. Crime scene tape?
9 A. Yes, sir.
10 Q. What's this in this area there?
11 A. That is that same blood splatter from the prior photo.
12 Q. Okay. I'd like to show you Government's Exhibit Number
13 8. Do you recognize what's shown there?
14 A. I do. That is again -- it's a longer shot of the
15 northwest corner of the HEUMF.
16 Q. So that's the same thing but just a fuller view?
17 A. It is, further back, yes.
18 Q. There's a tower there?
19 A. Yes.
20 Q. Government's Exhibit Number 9. What do you see there?
21 A. That's more blood splatter, sir, HEUMF.
22 Q. This is on a different wall, a different side of it?
23 A. Yes, sir. That photo you've just shown is the front of
24 the right side of this. It's -- if I can mark on here, it's
25 this side. The prior photo, if you were standing over here,
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1 you'd be looking at that. This is the left side, I guess, is
2 what you would say of the north side of the HEUMF.
3 Q. Okay. Show you Government's Exhibit Number 10. What do
4 you see there?
5 A. That's the same blood splatter as the prior photo, but
6 down here is their pile of gear.
7 Q. Okay. What type of stuff was in that gear?
8 A. There were hammers, cans of spray paint, baby bottles
9 with blood in it, some paperwork, flashlights covered with
10 duct tape on the end, and some assorted literature.
11 Q. Show you Government's Exhibit Number 11. Do you
12 recognize that?
13 A. Yes, sir. Those are the baby bottles that had blood in
14 them.
15 Q. Want to show you Government's Exhibit Number 16. What is
16 that?
17 A. Yes, sir, that's the first layer of PIDAS fence in front
18 of the HEUMF from the inside going out.
19 Q. Does that show the three different layers you spoke of?
20 A. It does, sir, yes.
21 Q. So are you -- what's the vantage point of that? Is that
22 taken from the vantage point of being in between the innermost
23 and the middle?
24 A. That is correct, yes.
25 Q. It's probably hard to see in this picture, but is there
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1 something -- move this down a little bit --
2 A. Yes, sir, in the shadow of the camera man right here is a
3 pair of bolt cutters.
4 Q. Okay. See if I can get that a little larger. So is that
5 more visible now?
6 A. Yes, sir. The yellow handled bolt cutters.
7 Q. So those bolt cutters were left in between the inner
8 PIDAS and the middle PIDAS?
9 A. That is correct.
10 Q. Do you see some type of a sign on an outer fence?
11 A. Yes, sir. It's like a homemade banner here with maybe a
12 bomb painted on it.
13 Q. Which fence is that?
14 A. That's the inner -- or, I'm sorry, the center middle
15 PIDAS fence.
16 Q. Is that the center or is that the outer?
17 A. I can't tell from that.
18 Q. Let me ask, which fence is this?
19 A. That's the inner.
20 Q. Which fence is this with this post right here?
21 A. That's the middle.
22 Q. Which fence is this with these?
23 A. That's the exterior, the outside.
24 Q. Okay. Show you Government's Exhibit Number 17. Do you
25 recognize what's in that?
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1 A. Yes, that's the interior breach point in the PIDAS and a
2 can of spray paint.
3 Q. So that shows -- does that show the damage, the cutting
4 of the fence?
5 A. Yes, sir.
6 Q. Is it cut -- how is it cut? Is it cut just one hole, or
7 is there more than one hole?
8 A. Looks like it's cut in a V-shape.
9 Q. Why don't you show us.
10 A. Like that, sir.
11 Q. Okay. And you say that's the inner fence; is that right?
12 A. That's correct, innermost fence.
13 MR. THEODORE: Your Honor, I'm going to show the
14 witness Exhibits 21 through, actually, 30. I believe those
15 are all --
16 MR. IRWIN: Yes, Your Honor.
17 THE COURT: They'll be admitted.
18 MR. THEODORE: After that, I'll follow up. We don't
19 have 31 in there, but 32 through 37.
20 THE COURT: So wait, 21 through 30.
21 MR. THEODORE: Then we'll skip 31 and then 32 through
22 37.
23 THE COURT: Any objection to those?
24 MR. IRWIN: No objection, Your Honor.
25 THE COURT: They're all admitted. You said 32
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1 through 37?
2 MR. THEODORE: That's correct, 32 through 37.
3 THE COURT: So you left out 31, 38 and 18 through 20?
4 MR. THEODORE: That's correct, Your Honor.
5 THE COURT: Okay.
6 BY MR. THEODORE:
7 Q. I want to show you Government's Exhibit 21. Let's see if
8 what you see there. Get this clear. Do you recognize what's
9 there?
10 A. I do. It's the same V cut in the interior fence, the
11 breach. This time, the photo is taken from inside the PIDAS.
12 Q. So again, that's still the innermost fence?
13 A. That is correct.
14 Q. Do you see anything in the background there, past the
15 PIDAS, closer to the HEUMF building over there; is that right?
16 A. That is correct.
17 Q. What do you see there?
18 A. I see at least, in this photo, I see at least two of the
19 suspects seated in the chairs that I had brought to them --
20 Q. Why don't you show us where.
21 A. Right here.
22 Q. Okay.
23 A. As well as some of the graffiti back there behind -- I
24 believe this is Officer Garland's Tahoe over here.
25 Q. So that shows, as you indicated, that you the brought
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1 chairs out for them?
2 A. That is correct.
3 Q. And that also shows the damage --
4 A. Yes.
5 Q. -- to that inner PIDAS?
6 A. Yes, sir, right there.
7 Q. Okay. Let me show you Government's Exhibit 22. Do you
8 recognize that?
9 A. I do. That's the red handled pair of bolt cutters left
10 in PIDAS.
11 Q. Do you know what portion of PIDAS that was on?
12 A. I don't recall on the red ones. I don't recall on the
13 red ones.
14 Q. I want to show you what's marked as Government's Exhibit
15 23.
16 MR. THEODORE: Your Honor, may I approach the
17 witness?
18 THE COURT: You may.
19 BY MR. THEODORE:
20 Q. Keep this in the box. This has been admitted,
21 Government's Exhibit 23. Can you pull that up so the judge
22 and the jury can see that?
23 A. (Complies.)
24 THE COURT: Thank you.
25 Q. Okay. And is that one pair of bolt cutters that was left
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 155 of 315 PageID #: 1685 RIGGS - Direct 156
1 there at the scene?
2 A. Yes.
3 MR. THEODORE: Your Honor, I'd like to substitute
4 Government's Exhibit Number 23A for that.
5 THE COURT: Any objection?
6 MR. IRWIN: No, Your Honor.
7 MR. LLOYD: No, Your Honor.
8 THE COURT: It will be admitted.
9 BY MR. THEODORE:
10 Q. Let me show you Government's Exhibit 24. Do you
11 recognize that?
12 A. Those are the yellow handled bolt cutters in between the
13 middle and the interior PIDAS fence.
14 Q. The ones you identified before?
15 A. Yes, in the photographer's shadow in that photo, yes,
16 sir.
17 Q. Is that where they were found at the scene?
18 A. That's correct.
19 Q. I'd like to show you Government's Exhibit Number 25.
20 MR. THEODORE: May I approach, Your Honor?
21 THE COURT: You may.
22 BY MR. THEODORE:
23 Q. Do you recognize that?
24 A. Yes, sir, I do. Those are in the photography there, the
25 yellow handled bolt cutters.
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1 Q. All right. Could you pull those up and display them for
2 the judge and the jury to see? And if you could hold that box
3 down so they can see. Very well. Thank you.
4 MR. THEODORE: Your Honor, for the record, I'd like
5 to substitute Government's Exhibit 25A for that exhibit.
6 THE COURT: Any objection?
7 MR. IRWIN: No, Your Honor.
8 MR. LLOYD: No, Your Honor.
9 THE COURT: Okay. It will be substituted.
10 BY MR. THEODORE:
11 Q. Show you Government's Exhibit Number 26. Do you
12 recognize what's shown in that photo?
13 A. I do, yes, sir.
14 Q. What is it?
15 A. Those are two hammers and a card. It's on the hood of my
16 Tahoe.
17 Q. Are those hammers that were seized at the scene?
18 A. Yes, sir. Once I had them on the ground, those were
19 within the reach so I removed -- those are potentially weapons
20 so I removed them from them.
21 Q. At what point when you got there did you see those
22 hammers? When you arrived at the scene?
23 A. Almost immediately. Once I got within enough distance,
24 while giving them verbal commands, I was able to see that they
25 were within reach.
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1 Q. I'd like to show you Government's Exhibit Number 27.
2 MR. THEODORE: If I may approach, Your Honor.
3 THE COURT: You may.
4 BY MR. THEODORE:
5 Q. If you could open that up, what is that?
6 A. That's the sledge type hammer in the photograph.
7 Q. Okay. Could you display that to the jury and the judge
8 so they can see what you have?
9 A. (Complies).
10 Q. So that's like a small sledgehammer; is that right?
11 A. Yes, sir.
12 MR. THEODORE: Your Honor, for the record, I'd like
13 to substitute 27A for that, for 27, for the record purposes.
14 THE COURT: Hearing no objection, it will be.
15 BY MR. THEODORE:
16 Q. I'd like to show you Government's Exhibit Number 29. Do
17 you recognize that?
18 A. Yes, sir. That's two of the other hammers. It's a ball
19 peen style on the bottom and a claw hammer on the top.
20 Q. Were those two additional hammers that were seized from
21 the scene?
22 A. Yes, sir, that's correct.
23 Q. Where about were those hammers; do you recall?
24 A. I believe those were found in their bags.
25 Q. I'd like to show you Government's Exhibit Number 30. Do
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1 you recognize that?
2 A. Yes, sir. It's a pair of binoculars hanging on the
3 innermost -- looks like the innermost PIDAS fence.
4 Q. Is that the inner or the middle fence; do you know?
5 A. That's the middle, because I can see now that banner.
6 Q. Yes.
7 A. And then the direction of the barbed wire on the top
8 indicates that this out here is the exterior fence.
9 Q. So is that how they were when you were at the scene when
10 it got light? They were just hanging on --
11 A. That is correct, yes, sir.
12 Q. Like to show you Government's Exhibit Number 32. Do you
13 recognize what's shown in that?
14 A. That is the breach in the middle fence of the PIDAS.
15 Q. And where is it breached? It's hard to see from that
16 photograph.
17 A. Right along this pole.
18 Q. Okay. Show you Government's Exhibit 33. Do you
19 recognize what's shown there?
20 A. I do. That's the breach of the exterior fence of the
21 PIDAS.
22 Q. And where is the breach again? It's hard to tell.
23 A. Right along this pole. Right there.
24 Q. I'd like to show you Government's Exhibit 34. Do you
25 recognize that?
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1 A. Yes, that's the gear that they were standing near when I
2 approached.
3 Q. Can you recognize some of the items that are in that?
4 A. This is a hammer.
5 Q. Is there something on that hammer?
6 A. Looks like some writing.
7 Q. What else do you see?
8 A. One of the baby bottles that had blood in it is right
9 there. Can of spray paint to the left of that. Some rubber
10 gloves in here. Another baby bottle. Some papers.
11 Q. Show you Government's Exhibit 35. Recognize that?
12 A. Yeah, those are cans of spray paint found at the scene.
13 Q. Those are taken into evidence?
14 A. Yes, sir.
15 Q. Show you Government's Exhibit 36.
16 A. That's more the cans that were found.
17 Q. Show you Government's Exhibit Number 37. Is that
18 something -- was that stuff that was left there?
19 A. That is correct. There's a baby bottle here in the
20 middle of the frame. It's a fan over here to the right, and
21 that's one of the flashlights that they had put duct tape on
22 the front of.
23 Q. Show you Government's Exhibit Number 53. Recognize that?
24 A. Yes, it looks like the crime scene tape that was around
25 the corner of the HEUMF there.
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1 THE COURT: This has not been admitted.
2 MR. THEODORE: I'm sorry, Your Honor. At this time,
3 I would move for the admission of Government's Exhibit Number
4 53.
5 THE COURT: Any objection?
6 MR. IRWIN: No objection to 53, Your Honor.
7 THE COURT: Okay. This one will be admitted.
8 BY MR. THEODORE:
9 Q. You said that's the crime scene tape that was left there?
10 A. Yes, sir.
11 Q. That was left presumably by the defendants. It was there
12 when you got there?
13 A. It was there when I got there.
14 MR. THEODORE: One moment, Your Honor.
15 BY MR. THEODORE:
16 Q. Just direct your attention back to Exhibit Number 6. You
17 earlier described the spray painted portion there and some
18 blood. Do you see anything else on there?
19 A. Yes. The prior photo showed a bundle of caution tape or
20 crime scene tape, and that's this right here.
21 Q. What about below that, do you see anything else?
22 A. Yes, sir. The damage that they did with the hammers on
23 the corner of the HEUMF is visible right there.
24 MR. THEODORE: No further questions, Your Honor.
25 THE COURT: Thank you. Cross.
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1 CROSS-EXAMINATION
2 BY MR. IRWIN:
3 Q. Officer Riggs?
4 A. Sergeant Riggs, yes, sir.
5 Q. Sergeant Riggs, I apologize. You're authorized to use
6 deadly force in the PIDAS zone, correct?
7 A. I'm sorry?
8 Q. You're authorized to use deadly force?
9 A. Authorized to use deadly force in certain circumstances,
10 yes, sir.
11 Q. You've had training in using deadly force?
12 A. That is correct.
13 Q. You were prepared to use deadly force if you believed it
14 necessary?
15 A. That is correct.
16 Q. Do any of my clients appear not to be alive right now?
17 A. I'm sorry?
18 Q. Do they appear to be alive right now?
19 A. Yes, sir, they do.
20 Q. You didn't use deadly force against them?
21 A. No, sir, I did not.
22 Q. You didn't believe it was necessary?
23 A. No, sir, I did not. Not at that time.
24 Q. Let's talk about when you arrived. When you looked
25 through their gear, you didn't find any dynamite, did you?
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1 A. No, sir.
2 Q. No grenades?
3 A. No, sir.
4 Q. No machine guns?
5 A. No, sir.
6 Q. No throwing stars?
7 A. No, sir.
8 Q. No pistols?
9 A. No, sir.
10 Q. No slingshots?
11 A. No, sir.
12 Q. BB guns?
13 A. No, sir.
14 Q. When you approached the facility --
15 MR. IRWIN: Actually, at this time, Your Honor, I'd
16 like to play the same segment the government did.
17 THE COURT: Which segment, because they played
18 multiple ones. The end of it?
19 MR. IRWIN: Yes, sir, the end of it when Officer
20 Riggs shows up.
21 THE COURT: So starting when he shows up?
22 MR. IRWIN: Correct, Your Honor. And if we could
23 just pause when I ask, please. If we could go back a little
24 bit before this, please.
25 THE COURT: He hasn't shown up yet.
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1 MR. IRWIN: I know, Your Honor. But he testified to
2 what he saw in the video, and I'd like to ask some
3 clarification.
4 THE COURT: Okay.
5 MR. IRWIN: If you could go back to perhaps when
6 Officer Garland shows up. Okay, freeze.
7 BY MR. IRWIN:
8 Q. Officer Riggs, you just saw what -- did it appear that
9 she was bowing to Officer Garland?
10 A. Yes, it did.
11 Q. All right.
12 MR. IRWIN: Please continue. If we could freeze it
13 for a moment.
14 Q. Officer Riggs, when you showed up at the site, they
15 didn't attempt to flee, did they?
16 A. No, they did not.
17 Q. They were cooperative, weren't they?
18 A. Once I gave them verbal commands, yes, sir.
19 Q. There were no holes blown in the side of the facility,
20 were there?
21 A. There were no holes.
22 Q. You heard no gunfire?
23 A. No, I did not.
24 Q. There was no traffic on the site?
25 A. I'm sorry.
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1 Q. There were no other cars, vehicles?
2 A. On the entire site?
3 Q. Where this took place.
4 A. No, sir.
5 Q. There was no a traffic jam caused?
6 A. No, sir.
7 Q. There were no tanks burning when you showed up?
8 A. No, sir.
9 Q. They weren't wearing camouflage when you came up?
10 A. No, sir.
11 Q. They didn't have black face paint on when you showed up?
12 A. No, they did not.
13 Q. They were cooperative?
14 A. (Nodding affirmatively).
15 MR. IRWIN: All right. If we could continue with the
16 video.
17 Q. They appear to be making no effort to flee. Do you agree
18 with that, Officer Riggs?
19 A. It does not look like they're fleeing, sir.
20 Q. Now, throughout what we're about to see, at no time is
21 Officer Garland going to draw his firearm, is he?
22 A. No, sir.
23 Q. He'd been through similar training that you have?
24 A. In the DOE system, yes.
25 Q. He still hasn't drawn a firearm?
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1 A. He doesn't appear to, sir.
2 Q. All right.
3 MR. IRWIN: If we could freeze.
4 Q. There seem to be lights happening. Are those candles
5 they're lighting?
6 A. It would appear to be.
7 Q. Thank you.
8 MR. IRWIN: Continue, please. Okay, freeze.
9 Q. The person on the far left, is that a candle in his hand?
10 Does that an appear to be a candle to you?
11 A. It looks like some kind of flame, sir.
12 Q. Thank you.
13 MR. IRWIN: Please continue.
14 Q. Officer Garland still hasn't drawn a firearm, has he?
15 A. No, sir.
16 Q. They're still holding lit candles, aren't they?
17 A. It looks like it.
18 Q. They haven't attempted to flee, have they?
19 A. No, sir.
20 Q. And again, there are no visible blast holes in the side
21 of the building, are there?
22 A. I'm sorry?
23 Q. There is no visible holes that have been blasted in the
24 side of the facility, there are?
25 A. No, sir. The only damage appears is that section where
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1 they hit with a hammer.
2 Q. All right.
3 MR. IRWIN: If we could pause.
4 Q. On that section they hit with the hammer, you would
5 estimate that they were on the site approximately seven
6 minutes before you showed up?
7 A. I don't know how long. I mean, from the video, it
8 appears seven minutes.
9 Q. That would be accurate. At that rate, how long do you
10 believe it would take them with a hammer to get through the
11 building?
12 A. I don't know the answer to that question.
13 Q. A hundred years?
14 A. I don't know the answer.
15 Q. Seventy years?
16 MR. THEODORE: Asked and answered. Objection.
17 THE COURT: Sustained.
18 MR. IRWIN: Very good. If we could continue with the
19 video.
20 BY MR. IRWIN:
21 Q. Officer Garland still hasn't drawn a firearm, has he?
22 A. No, sir.
23 Q. He hasn't pulled out mace, has he?
24 A. No, sir.
25 Q. Taser?
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1 A. I'm sorry?
2 Q. He hasn't pulled a taser out, has he?
3 A. No, sir.
4 Q. She appears to be bowing to him, doesn't she?
5 A. Yes, sir.
6 MR. IRWIN: Your Honor, we can stop the video at this
7 point? I don't need to go further with it.
8 Q. May I withdraw -- first of all, you have hammers in front
9 of you, don't you?
10 A. I do, yes, sir.
11 Q. One of them I believe had writing on it. Can you open
12 that, please? I'm not sure which exhibit.
13 A. It's this one here.
14 Q. Could you read what's on them?
15 A. Yes, sir. It says, "Trust God, not first strike terror
16 weapons."
17 Q. And the other hammer?
18 A. It's not up here.
19 Q. All right. As far as the bolt cutters, were they
20 weaponized? Do they have an ability to shoot?
21 A. No, sir.
22 Q. Just standard bolt cutters?
23 A. It appears so, yes, sir.
24 MR. IRWIN: May I have Government's Exhibit 6,
25 please?
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1 BY MR. IRWIN:
2 Q. It's slightly out of focus. Officer Garland -- I'm
3 sorry. Officer Riggs, if you could, could you please circle
4 where any holes have been blown in the side of this building
5 through explosives?
6 A. There are none.
7 Q. Okay. Could you at least point out any bullet holes into
8 the side of the building?
9 A. I didn't hear you.
10 Q. Bullet holes?
11 A. There are none.
12 Q. All right.
13 MR. IRWIN: Can I withdraw Exhibit 9, please?
14 BY MR. IRWIN:
15 Q. Same question, Officer Riggs. Can you please circle on
16 this where there's any damage through blast or bullet holes or
17 explosives on the side of the building?
18 A. I do not see any.
19 Q. You found no damage in the entranceway of the facility,
20 did you?
21 A. Which entranceway do you mean?
22 Q. The HEUMF facility.
23 A. Which entry do you mean?
24 Q. Any of the entries.
25 A. Any entry to the HEUMF?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 169 of 315 PageID #: 1699 RIGGS - Cross 170
1 Q. Correct. You found no evidence of damage?
2 A. No, not to the building, no, sir.
3 Q. You found no evidence of crowbar marks where somebody
4 tried to pry their way into the interior of the building?
5 A. No, sir.
6 Q. You found no evidence of blasts in the entranceway where
7 somebody tried to get inside the building?
8 A. No, sir, I did not.
9 Q. In fact, there was no hope of them getting inside the
10 building from what you found on them, was there?
11 MR. THEODORE: Objection. Calls for speculation,
12 Your Honor.
13 THE COURT: Sustained.
14 MR. IRWIN: I have no further questions, Your Honor.
15 THE COURT: Mr. Lloyd or Mr. Boertje-Obed, who's
16 next?
17 CROSS-EXAMINATION
18 BY MR. LLOYD:
19 Q. Sergeant, I'm Francis Lloyd. I represent Sister Megan
20 Rice.
21 A. Yes, sir.
22 Q. How are you this afternoon?
23 A. I'm fine, sir. Thank you.
24 Q. All right, good. As we sit here today, who writes your
25 paycheck?
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1 A. I'm sorry?
2 Q. As we sit here today, who writes your paycheck?
3 A. The company listed is B&W.
4 Q. Do you know a full name?
5 A. Babcock & Wilcox.
6 Q. Is that different from Babcock & Wilcox Y-12?
7 A. I don't know, sir.
8 Q. On July 28, 2012, who wrote your paycheck?
9 A. G4S.
10 Q. Can you spell it for me?
11 A. G, the number 4, the letter S.
12 Q. Was G4S formerly Wackenhut or WSIOR?
13 A. It was formerly WSIOR.
14 Q. And was G4S, like WSIOR, a subsidiary of a foreign
15 company named Wackenhut?
16 A. Yes, sir.
17 Q. All right, sir. Between the time of this incident and
18 today, how did you come to be employed by -- you said B&W?
19 A. That's correct.
20 Q. How did that happen?
21 A. I started with Wackenhut, the name changed to WSIOR. The
22 name changed to G4S. G4S contract was terminated, and we were
23 absorbed into B&W.
24 Q. So was the G4S contract terminated as a result of this
25 incident?
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1 A. I don't know the factors to it.
2 Q. So you went immediately from G4S to your current
3 employer, correct?
4 A. That is correct, sir.
5 Q. Didn't miss a beat?
6 A. No, sir.
7 Q. What about -- what is Mr. Garland's former title?
8 A. Security Police Officer I.
9 Q. SPO?
10 A. That is correct, SPO.
11 Q. So SPO Garland, did he make the transition from G4S to
12 B&W?
13 A. No, sir, he did not.
14 Q. He was fired, wasn't he?
15 A. I don't know the terms of his separation personally, sir.
16 Q. On July 28, 2012, sir, I want to walk you from that outer
17 fence to where you first encountered my client and the two
18 defendants, all right, sir?
19 A. Yes, sir.
20 Q. You're familiar with Y-12 overall, correct?
21 A. I am, sir, yes.
22 Q. And that's due to your work as a sergeant in the pro
23 force?
24 A. That's correct.
25 Q. All right, sir. From the 229 boundary, that's the outer
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1 perimeter, correct?
2 A. That's the property boundary around the entire site.
3 Q. All right, sir. Now from 229 until the system of three
4 fences, and I forget that acronym.
5 A. PIDAS.
6 Q. PIDAS, P-I-D-I-S?
7 A. P-I-D-A-S.
8 Q. Where these folks entered the outside perimeter, they
9 would have been in a wooded area, correct?
10 A. That is correct.
11 Q. All right, sir. And had to go over a ridge before they
12 could look down on the Y-12 facility, correct?
13 A. Yes, sir.
14 Q. All right. Now, up to that point, getting across that
15 bridge, they would not have, on July 28, they would not have
16 encountered any missile launchers, would they?
17 A. No, sir.
18 Q. There are no missile launchers at Y-12, correct?
19 A. Not to my knowledge.
20 Q. All right, sir. Any missile silos?
21 A. Again, not to my knowledge.
22 Q. Any tanks?
23 A. Not to my knowledge.
24 Q. All right, sir. And now going from the bottom of that
25 hill, once they're over the ridge, to the HEUMF, that's all
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1 still true, correct?
2 A. What is true?
3 Q. No missile silos?
4 A. No missiles, sir.
5 Q. No missile launchers?
6 A. No, sir.
7 Q. No tanks?
8 A. No, sir.
9 Q. All right, sir. If my notes are correct, when you
10 arrived on the scene after SPO Garland, you saw what you
11 termed vandalism; is that correct?
12 A. That's correct.
13 Q. And you'd never seen anything like that before at Y-12?
14 A. That is correct.
15 Q. You restrained these individuals while they were face
16 down on the ground?
17 A. I did not.
18 Q. Who did?
19 A. SPO Garland, SPO Thorpe, and SPO Bingham.
20 Q. Was that at your direction, Sergeant?
21 A. That is correct.
22 Q. At some point, did SPO Garland ask you to loosen those
23 cuffs because they were too tight?
24 A. I don't recall Garland saying that.
25 Q. All right, sir. We watched that film a little bit
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1 earlier, and I want to know, do you remember, Sergeant, the
2 radio traffic that early morning among pro force folks like
3 yourself?
4 A. There was some radio traffic.
5 Q. Some people calling in?
6 A. Yes.
7 Q. All right, sir. Did someone say, we have peace
8 protesters here?
9 A. No, sir, I don't recall that.
10 Q. Again, if my notes are correct, Sergeant, I heard you say
11 that you were concerned about an AK-47 sniper?
12 A. I did not say a specific weapon platform, sir.
13 Q. Okay. I wondered about that, because I wrote that down.
14 There was no sniper, it turns out, correct?
15 A. We did not identify one.
16 Q. You're not telling us that you still fear there's one out
17 there, are you?
18 A. I have no idea, sir.
19 Q. Is that not your job to know?
20 A. I don't know, sir. I know there's no one right near me.
21 Q. Okay.
22 A. I'm sorry. Does that answer your question, sir?
23 Q. Yes, sir. Did these defendants have to ask you to allow
24 them to move? You testified earlier that you allowed them to
25 stretch or change position so no one would asphyxiate, I think
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1 you said?
2 A. That's correct, I did that.
3 Q. And was that at one of the defendants' request?
4 A. I don't think so, sir. I just -- I did that.
5 Q. What time were you on the scene that morning?
6 A. I don't recall an exact time, sir.
7 Q. Can you estimate before 10:00?
8 A. Yes, sir, it was between 4:00 and 5:00. I don't remember
9 the exact time.
10 Q. And is it true these people were not provided chairs
11 until 10:00 in the morning?
12 A. I don't know that. I don't remember when that was, sir.
13 Q. You've identified several items through photographs shown
14 you by the government. Do you recall that there were also
15 books on the site?
16 A. I do, yes, sir.
17 Q. What books did they have?
18 A. I don't know what titles there were, sir.
19 Q. You don't know if anyone had a Bible?
20 A. I don't recall seeing one titled that on the cover, sir.
21 Q. Or a book entitled New Testament?
22 A. I didn't see that either, sir.
23 Q. Did you read any of the literature that the folks had
24 brought?
25 A. No, sir, I did not.
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1 Q. That building, HEUMF, that signifies it contains highly
2 enriched uranium, correct?
3 A. Yes, sir.
4 Q. None of these three defendants ever got his or her hands
5 on enriched uranium in this incident, right?
6 A. No, sir, they did not.
7 Q. As a matter of fact, after this incident, there was the
8 same amount of enriched uranium in that building as there had
9 been the day before, right?
10 A. That's my assumption, sir, yes.
11 Q. Okay. And the status of that enriched uranium just after
12 this incident was no different than it was the day before, was
13 it?
14 A. No, sir, I don't think it was any different.
15 MR. LLOYD: Your Honor, if I might have a moment to
16 consult with my client, I believe I'm finished.
17 THE COURT: You may.
18 (Mr. Lloyd and Defendant Rice conferred.)
19 MR. LLOYD: That is all I have, Your Honor.
20 THE COURT: Thank you. Mr. Boertje-Obed?
21 DEFENDANT BOERTJE-OBED: Just one question, one or
22 two.
23 CROSS-EXAMINATION
24 BY DEFENDANT BOERTJE-OBED:
25 Q. We've seen some pictures of the evidence. There was one
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1 exhibit that had the large hammer, the small hammer and what
2 you called a card. Do you remember if you had looked at that
3 card to see if it was my Veterans For Peace ID?
4 A. No, sir, I do not recall what was on that card.
5 Q. So you never read that card either?
6 A. No, sir, I did not.
7 DEFENDANT BOERTJE-OBED: No further questions.
8 THE COURT: Redirect.
9 MR. THEODORE: Just a few questions, Your Honor.
10 REDIRECT EXAMINATION
11 BY MR. THEODORE:
12 Q. Sergeant Riggs, when you came to the scene and you saw
13 Officer Garland there with the three defendants, did you feel
14 that it was being handled properly at that time, at that
15 moment?
16 A. No, sir, I did not.
17 Q. Explain.
18 A. Sir, I felt that that SPO Garland was more relaxed than I
19 felt he should be with an unknown threat.
20 Q. There was some mention -- Mr. Irwin asked about it
21 appeared to be candles being lit at that time. If you had
22 been the first responder, would you have allowed that type of
23 conduct?
24 A. Absolutely not.
25 Q. Why not?
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1 A. Because, sir, if I was the first person there, I had no
2 idea what was in those bags. And especially, lighting
3 something to me is very, very dangerous when you don't know
4 what it is. So I would have ordered them to keep their hands
5 where I could see them and to stay out of the bags.
6 Q. You mentioned that they were restrained with cuffs; is
7 that correct?
8 A. Flex cuffs, yes, sir.
9 Q. What are flex cuffs?
10 A. It's a thicker version of a zip tie, but it's
11 specifically designed for physical restraint.
12 Q. So they're handcuffs, but plastic?
13 A. Yes, they're plastic disposable handcuffs.
14 MR. THEODORE: Nothing further, Your Honor.
15 THE COURT: May this witness be excused?
16 MR. THEODORE: Yes.
17 THE COURT: May the witness be excused?
18 MR. IRWIN: Yes, Your Honor.
19 MR. LLOYD: Yes, Your Honor.
20 DEFENDANT BOERTJE-OBED: Yes.
21 THE COURT: Thank you, sir. You're free to go.
22 Please call your next witness.
23 MR. THEODORE: Your Honor, the United States would
24 call Kirk Garland to the stand.
25 KIRK GARLAND, GOVERNMENT'S WITNESS, SWORN
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 179 of 315 PageID #: 1709 GARLAND - Direct 180
1 DEPUTY CLERK: State and spell your name for the
2 record, please.
3 THE WITNESS: My name is Kirk Garland, K-i-r-k
4 G-a-r-l-a-n-d.
5 DIRECT EXAMINATION
6 BY MR. THEODORE:
7 Q. State your name nice and loud for the record, please.
8 A. Kirk Garland.
9 Q. Mr. Garland, what is your occupation right now?
10 A. Right now, I'm employed by the State of Tennessee,
11 correctional officer.
12 Q. Where is that?
13 A. Wartburg, Tennessee.
14 Q. I want to direct your attention back to July 28, 2012.
15 Do you recall that date?
16 A. Yes, sir.
17 Q. Where were you employed at that time?
18 A. I was employed for G4S, contracted out to the Department
19 of Energy.
20 Q. Were you working at Y-12?
21 A. Security police officer.
22 Q. I'm sorry?
23 A. Security police officer.
24 Q. At Y-12?
25 A. Um-hmm.
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1 Q. How long did you work at Y-12 prior to that time?
2 A. I had been at Y-12 about five and a half years. I came
3 from two other DOE sites. Total of 29 and a half years with
4 the Department of Energy.
5 Q. Where else had you worked besides Y-12?
6 A. Worked at Rocky Flats, Colorado, for 21 years, and I
7 worked at Pantex in Amarillo, Texas, for three.
8 Q. Mr. Garland, let me direct you to the early morning hours
9 of July 28, 2012. Were you working at that time?
10 A. Correct.
11 Q. And did anything unusual happen at that time?
12 A. Correct.
13 Q. Okay. Why don't you describe just what did happen.
14 A. Well, I had assumed my position in the patrol car at
15 approximately 4:15. About 4:25, 4:28, I was dispatched to an
16 alarm at the 995 building.
17 Upon approach at the 995 building when I was turning
18 around to make assessment on that, I was called at 4:31 on my
19 cell phone from my lieutenant, Beta 3, to assess an alarm in
20 Sector 63.
21 Q. Sector 63?
22 A. Correct, the PIDAS.
23 Q. Okay. What happened after you got that call?
24 A. So I made my approach to Sector 63. Upon my approach to
25 the sector, I was looking off to the right-hand side of my
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1 car. That's where the sector had been located. At that
2 point, I didn't really see anything, due to the way the
3 lighting was.
4 I went to grab my radio. As I turned my head, out of my
5 peripheral vision, I seen three people walk towards my car.
6 At that time, I seen the writing on the building they had
7 wrote. Due to my experience, I knew at that time what I had.
8 At that point, my cell phone rang, I answered my cell phone,
9 told my lieutenant what I had, needed backup. Backup was on
10 its way. I got out, followed my force continuum and made
11 verbal contact.
12 Q. Okay. So you stopped at the scene where the three
13 individuals were?
14 A. Correct.
15 Q. And in what -- what building is that where they were?
16 A. It's HEUMF building.
17 Q. And what did you do after that point in time, after you
18 saw them?
19 A. At that point, I made contact with them, told them to
20 keep their hands where I could see them, not to make any
21 movement. Asked them how they got in there, did what I'm
22 trained to do, interviewed them.
23 Q. Do you see those three individuals in this courtroom
24 right now?
25 A. I do.
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1 Q. Why don't you describe further -- after that point, you
2 made contact with them. What happened after that?
3 A. At that point, they wanted to make a statement. I asked
4 them how they got in there. They told me that they --
5 Q. Let's not get into any statements they made at this
6 point, unless the defense wants. That's fine. That's fine.
7 You can describe your statements.
8 A. They told me they were sent from God, and they wanted to
9 read me some statement that they had written on a piece of
10 paper. That's basically it from what they said, you know.
11 They read that to me. They were also reading to me from the
12 Bible and Isaiah, if my memory serves me correct.
13 Q. What happened after that?
14 A. At that point, approximately four minutes later, my
15 backup arrived. We put them into the prone position.
16 Q. Who was your backup?
17 A. Sergeant Chad Riggs. We put them into the prone
18 position. I at that point cuffed the first one. And then
19 upon backup, we cuffed the other two.
20 Q. So more backup came?
21 A. Two more patrol units came.
22 Q. What happened after that that?
23 A. They were taken into custody at that point. We allowed
24 them to set up, set them against the building to be more
25 comfortable, and awaited for all the higher echelon to get
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1 there and the U.S. district attorneys to get there.
2 Q. Why don't you describe the scene. What did you see?
3 A. The scene. They had spray painted to on the walls Woe to
4 the Power of Evil [sic]. Looked like they'd thrown blood
5 around. I couldn't see if that's what it was. It looked like
6 it. They'd put some stuff up. We checked out the fence line
7 where they intruded through with bolt cutters and made their
8 intrusion into the protected area.
9 Q. Did you see -- I'm sorry. You said you saw the area
10 where the fences were?
11 A. Correct.
12 Q. And what did you see?
13 A. Where they had cut the fence. One cut was straight up
14 and down where they cut through. Opened it up like that,
15 walked in. The other one was cut in an angle, where they
16 pulled the fence back and crawled through.
17 Q. Did you actually seize any evidence at the scene?
18 A. I didn't seize any, but there was evidence at the scene.
19 I personally didn't seize any, but there was evidence at the
20 scene.
21 Q. That you observed?
22 A. Correct.
23 Q. What type of evidence did you see?
24 A. Binoculars, bolt cutters, a couple little hammers, spray
25 paint, baby bottles that was filled with blood, papers, coats,
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1 backpacks.
2 Q. Do you still work there?
3 A. No, I don't.
4 Q. Why not?
5 A. I guess the Department of Energy didn't like the way I
6 handled the situation.
7 MR. THEODORE: Nothing further, Your Honor.
8 THE COURT: Cross.
9 CROSS-EXAMINATION
10 BY MR. IRWIN:
11 Q. Is it Sergeant Garland or --
12 A. No.
13 Q. Just Mr. Garland?
14 A. Just Kirk Garland.
15 Q. They fired you?
16 A. Correct.
17 Q. So these people got through the outer fence, yes or no?
18 A. Correct.
19 Q. Next fence?
20 A. Correct.
21 Q. The following fence?
22 A. Correct.
23 Q. The last fence?
24 A. Correct.
25 Q. There's a failure of security?
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1 A. Correct.
2 Q. And you stopped them?
3 A. Correct.
4 Q. You were the first on the scene?
5 A. That's correct.
6 Q. And then you followed your training?
7 A. Correct.
8 Q. You had over 21 years of experience at Rocky Flats?
9 A. Almost 30.
10 Q. Almost 30. And in those times, you had dealt with peace
11 protesters before?
12 A. Correct. I've arrested quite a few of them.
13 Q. You recognized them?
14 A. The ones I --
15 Q. Yes.
16 A. They're not here, but I've arrested many peace
17 protesters. I mean, I understand a peace protester when I see
18 one. Not saying that there's a certain way they dress or
19 anything like that, but they're all, you know, peace
20 activists.
21 Q. So based on this experience, when you saw the slogans,
22 that told you they were peace activists?
23 A. Correct. I didn't know what organization they were with,
24 but I knew they were anti-nuclear people.
25 Q. Did they sing to you at any time?
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1 A. Yeah.
2 Q. Did you have to ask them to stop?
3 A. I didn't ask them to stop, no.
4 Q. Do you remember what they sang to you?
5 A. No, I can't.
6 Q. They never tried to run?
7 A. No. They followed my commands, other than when they lit
8 the candle. They were directed not to make any movements and
9 they did. But at that point, I really didn't know -- my
10 attention was over here, and one was over here lighting the
11 candles.
12 Q. So they had lit candles?
13 A. They had lit a candle.
14 Q. You saw no weapons?
15 A. I seen no weapons, no.
16 Q. And you found no weapons on them at any time?
17 A. No.
18 Q. No guns?
19 A. No.
20 Q. Dynamite?
21 A. In fact, I asked the individual when I cuffed him if he
22 had anything on him that could harm me or stick me, and he
23 said that he did not have any weapons on him.
24 Q. So you were authorized to use lethal force, though?
25 A. Correct.
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1 Q. But through your training and experience, you chose not
2 to?
3 A. Well, I'm authorized to use deadly force when my life is
4 being threatened or somebody else's life is being threatened
5 or in other situations. None of those situations was present.
6 Q. And you saw, when you pulled up, no blast marks on the
7 side of the facility wall?
8 A. No.
9 Q. No holes blown into it?
10 A. Well, there was some holes that they put in with a
11 hammer, but there was no holes blown into it.
12 Q. I see. You saw no -- you heard no gunfire?
13 A. No.
14 Q. You found no weapons on them whatsoever?
15 A. No. Had that been the situation, I wouldn't have pulled
16 up to the sector. I'd have backed off.
17 Q. So as per your training, since there were three of them,
18 you waited until another officer showed up?
19 A. Correct. You always -- you always cuff with two. You
20 never cuff with one officer.
21 Q. Because you might be outnumbered?
22 A. Correct.
23 Q. That would create an unsafe situation?
24 A. Correct. But I had backup 12 feet above in me a tower
25 also.
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1 Q. What kind of backup?
2 A. It's a man in a tower armed with a fully automatic
3 weapon.
4 Q. And do you know how many rounds a minute that weapon can
5 fire?
6 A. I do. But due to the classified nature --
7 Q. I understand. I didn't mean to cross that line, sir. At
8 the end of this -- were they passive?
9 A. They were passive.
10 Q. Very passive?
11 A. They were passive.
12 Q. And when they read to the Bible from you, they were
13 reading from Isaiah?
14 A. I believe, if my memory serves me correct.
15 Q. And Miss -- Sister Rice here informed you that she had a
16 heart condition?
17 A. Correct.
18 MR. IRWIN: I have no further questions of this
19 witness, Your Honor.
20 THE COURT: Thank you.
21 MR. LLOYD: Very briefly, Your Honor.
22 CROSS-EXAMINATION
23 BY MR. LLOYD:
24 Q. Officer Garland, I'm Francis Lloyd. I represent Sister
25 Megan Rice.
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1 A. Okay.
2 Q. My notes indicate that when counsel for the government
3 was asking you questions, one of the things you said was I
4 knew what I had?
5 A. Correct.
6 Q. What did you mean by that? Did you mean you knew you had
7 peace protesters?
8 A. Correct. I worked at Rocky Flats for 21 years, in which
9 we had another Catholic nun get in our system, hang the same
10 sign -- not saying the same thing, but hang a sign and throw
11 blood too. So I've seen that before.
12 So when I made the statement I know what I had --
13 Q. Yes, sir.
14 A. -- that's what I'm referring to, that I had been in that
15 situation before.
16 Q. At some point that evening, sir, after you arrived on the
17 scene, were you in radio or walkie-talkie contact with
18 other --
19 A. No. I was in cell phone contact.
20 Q. Cell phone?
21 A. Yeah, because that's our primary means of communication.
22 Q. And in the course of cell phone contact, did you say to
23 one or more other persons in the pro force, we have peace
24 protesters?
25 A. Yes, to my lieutenant.
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1 Q. All right, sir. Would Sergeant Riggs have been in on
2 that conversation?
3 A. No, he would not have been.
4 Q. All right. Do you recall the wall there at the HEUMF
5 where they had tapped with hammers?
6 A. Um-hmm.
7 Q. You'll have to answer yes or no --
8 A. Yes, I do. I recall it.
9 Q. -- for the court reporter. Do you do any work yourself?
10 A. As far as?
11 Q. Handy work around the house?
12 A. Yeah.
13 Q. Can you tell me, was that a sort of a spot that you could
14 plaster over?
15 A. Well, I don't know. It was a pretty big chunk out of a
16 wall. I mean, I don't -- not sure you could plaster right
17 over it.
18 Q. But I take it those are pretty thick walls, aren't they?
19 A. Yeah, they're fairly thick.
20 Q. Because you've got enriched uranium inside, right?
21 A. Correct. But that would be above my classification to
22 know how thick those are so I couldn't answer exactly the
23 thickness of that wall.
24 Q. Well, thicker than the hole you saw? That hole didn't go
25 all the way through that wall, did it?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 191 of 315 PageID #: 1721 GARLAND - Cross 192
1 A. No.
2 Q. And with respect to blood and spray painted graffiti, was
3 that something that would be covered by whitewash?
4 A. Probably something that could be covered with a certain
5 type of paint that they use on it, which I'm sure is fairly
6 expensive. And I'm sure by the time they paid four, five
7 painters to come out and do it at their rate, I'm sure it ran
8 into quite an extensive amount of money.
9 Q. Are you telling me, sir, that maybe it takes a few more
10 painters at Y-12 than it would at my house to paint a wall?
11 A. I'm saying the area's pretty big. I mean, one painter,
12 it's going to take him quite a while to paint two sides of a
13 building. I don't know how many painters they had come paint
14 it. I'm saying I would have put two on each side to paint
15 that big of an area.
16 Q. And if you were having work done at your house, you might
17 not have paid the rates paid at Y-12? Is that what you're
18 telling me?
19 A. Well, I don't know. You get what you pay for.
20 Q. Mr. Garland -- or Officer Garland, I'm sorry, at some
21 point, did you suggest to Sergeant Riggs that the plastic
22 cuffs on the defendants were too tight?
23 A. Not that they were too tight. One individual was
24 complaining that they were hurting him. So at that point, we
25 removed that set of cuffs and reapplied them.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 192 of 315 PageID #: 1722 GARLAND - Cross 193
1 Q. And do you recall what time of day this arrest was?
2 A. I believe they were taken into custody about 4:45.
3 Q. Is it correct that they did not get chairs until about
4 10:00 in the morning?
5 A. No, it was before that, because I was relieved of duty at
6 7:00, and they were in those chairs before I left.
7 Q. So at 7:00, you left? You were done for the day?
8 A. I was relieved to go write my reports, make my
9 statements. Approximate time.
10 Q. And then finished after you made your report?
11 A. I was there 'til about noon or 1:00.
12 Q. How long after that were you let go?
13 A. Terminated?
14 Q. Yes, sir.
15 A. I was terminated on the 10th of April.
16 Q. Of --
17 A. I mean of August, I'm sorry. 10th of August, 2012.
18 Q. All right, sir. Are you, to your knowledge, the only pro
19 force officer terminated?
20 A. Correct.
21 MR. LLOYD: Thank you, Officer.
22 THE WITNESS: You're welcome.
23 THE COURT: Mr. Boertje-Obed?
24 DEFENDANT BOERTJE-OBED: No questions.
25 THE COURT: Any redirect?
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1 MR. THEODORE: No, Your Honor.
2 THE COURT: May he be excused?
3 MR. THEODORE: He may.
4 MR. IRWIN: Yes, sir.
5 MR. LLOYD: Yes, Your Honor.
6 THE COURT: Thank you, sir. You're free to go.
7 Please call your next witness.
8 MR. THEODORE: Your Honor, we'd call General Rodney
9 Johnson.
10 THE COURT: Ladies and gentlemen, how are you doing?
11 JUROR 256: Need a bathroom break.
12 THE COURT: Why don't we take a bathroom break and
13 then we'll start with your next witness.
14 MR. THEODORE: Very well.
15 THE COURT: Ladies and gentlemen, it is 3:22 by my
16 clock. I'll see you back here at 3:40. Because we're taking
17 a little earlier break, you should be prepared to go for a
18 couple hours so make your break worthwhile.
19 (The jury left the courtroom at 3:22 p.m.)
20 THE COURT: I assume there's nothing we need to take
21 up?
22 MR. HUTSON: Briefly, Your Honor, Mr. Boertje-Obed
23 has an issue.
24 DEFENDANT BOERTJE-OBED: The magistrate wanted me to
25 have an attorney advisor so I have one. So I have an
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 194 of 315 PageID #: 1724 195
1 objection.
2 THE COURT: Go ahead, sir. I'm sorry.
3 DEFENDANT BOERTJE-OBED: Juror number 52 -- does that
4 look like a 2?
5 MR. HUTSON: It is.
6 DEFENDANT BOERTJE-OBED: Has also fallen asleep
7 multiple times during the court testimony. I would ask that
8 he be moved to an alternate juror.
9 THE COURT: I'll watch him. I haven't seen him fall
10 asleep. If you will approach or indicate when he has fallen
11 asleep by asking to approach, I would appreciate it, but I've
12 kept my eye on the jury, and I've not seen him sleeping.
13 MR. HUTSON: It's been fairly extensive.
14 THE COURT: I'll keep an eye on him.
15 DEFENDANT BOERTJE-OBED: Thank you, Your Honor.
16 MR. THEODORE: Your Honor, we object to that.
17 THE COURT: To me keeping an eye on him?
18 MR. THEODORE: No, to the objection by Mr.
19 Boertje-Obed as far as changing him to an alternate.
20 THE COURT: I'm sorry?
21 MR. THEODORE: As far as him being changed to an
22 alternate, we object.
23 THE COURT: I'll keep an eye on him.
24 (Sidebar concluded.)
25 (Recess from 3:24 p.m. until 3:38 p.m.)
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1 THE COURT: Ladies and gentlemen in the gallery, I
2 talked to counsel briefly. When we are done with the jury, it
3 doesn't mean we're done in here. So if you prefer, you're
4 welcome to sit in the overflow room, but if you're in here,
5 you have to wait until we're done, because the court reporter
6 can't hear what's going on, and the defendants often want to
7 approach, or sometimes the government, and protect the record,
8 and you're hindering their ability to do so by making noise.
9 So if you want to be in here, you're welcome. Don't make
10 me close the courtroom, which I will do if it is costing the
11 defendants or the government a fair trial. I ask that you
12 refrain from speaking or making noise until we are done in
13 here, okay? Thank you very much.
14 Let's call the jury in.
15 (The jury entered the courtroom at 3:39 p.m.)
16 THE COURT: Please call your next witness.
17 MS. KIRBY: Your Honor, the government calls
18 Brigadier General Rodney L. Johnson.
19 RODNEY L. JOHNSON, GOVERNMENT'S WITNESS, SWORN
20 DEPUTY CLERK: Please be seated. State your name and
21 spell it, please.
22 THE WITNESS: Rodney L. Johnson.
23 DIRECT EXAMINATION
24 BY MS. KIRBY:
25 Q. Good afternoon, General Johnson. How are you today?
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1 A. Pretty good.
2 Q. Could you state for the record your current occupation?
3 A. I'm currently the deputy general manager for security
4 operations and emergency services at Y-12.
5 Q. What are your duties in that role?
6 A. Basically, I'm in charge of all security operations. So
7 the full spectrum of security; not just the physical security,
8 but training and education of the pro force and then the
9 security staff.
10 And then we also -- as part of the emergency management
11 operations, I have the fire department, the medical
12 responders, and the 24-hour ops center.
13 Q. Now, do you work with a contractor, or do you work with
14 the federal government?
15 A. I'm employed by B&W, so I'm a contractor and, of course,
16 our customer that we work for is DOE. So it's a federal site
17 that we're on contract to support.
18 Q. Can you please describe your professional background?
19 A. Yes. I spent 32 and a half years in the Army. Last
20 three and a half years, I was the provost marshal general of
21 the Army and the commanding general of criminal investigations
22 division. So I was responsible for the 60,000 military police
23 deployed and trained worldwide and then the 2,800
24 investigators that did all the felony level investigations for
25 the Army.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 197 of 315 PageID #: 1727 JOHNSON - Direct 198
1 I got out of the Army in March of '10 and went to Pantex,
2 which is in Amarillo, Texas, one of the sister sites of Y-12,
3 and I was the director of security there for two years and
4 then moved up and became the deputy general manager for
5 Pantex.
6 And then on 1 August, I was asked to come to Y-12 and
7 assist with a recovery operation, and I've been there ever
8 since.
9 Q. In your role as the deputy general manager for security
10 operations at Y-12, do you oversee the departments at B&W that
11 are responsible for repairs to damages to government property
12 there at Y-12?
13 A. I oversee the security force. And in support of our
14 security force, we have maintenance personnel that provide all
15 the maintenance and support operations on the site.
16 Q. In your role, are you familiar with the costs incurred as
17 a result of the defendants' destruction of government property
18 on July 28, 2012?
19 A. Yes, I am.
20 Q. How are you familiar with those costs?
21 A. I reviewed all those costs because they all came out of
22 my budget.
23 Q. Now, how is your budget funded for Y-12 and for those
24 types --
25 A. Y-12 is paid on contract to provide -- to run the Y-12
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1 site and so our budgets are -- our budget is funded by the
2 federal government.
3 Q. What damage did the defendants cause to the government
4 property at Y-12 in July of 2012?
5 A. They damaged the federal boundary marker, which is our
6 perimeter 229 fence, by cutting through it. And then they
7 damaged the cement barricades that outline the PIDAS, the
8 Perimeter Intrusion Detection Assessment System.
9 And then the PIDAS itself, which consists of three
10 separate fence lines separated by 20 feet each, they cut
11 through those fence lines. And then they damaged the building
12 itself, the HEUMF, the highly enriched uranium manufacturing
13 facility, by pouring blood and other items on the building
14 itself so it had to be power scrubbed to get decontaminated
15 and then repainted.
16 Q. Could the HEUMF building be cleaned just like any other
17 type of concrete surface?
18 A. Yes, it was. It was power scrubbed, and we had to take
19 some extra precautions to ensure our workers weren't
20 contaminated. But it was power scrubbed and then it was
21 painted again.
22 Q. Did the blood that you referenced present any sort of
23 concerns or issues for the cleanup crew?
24 A. It did. Honestly, we weren't sure what the liquid was so
25 we took precautions to ensure our workers were protected. We
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1 went out and procured the, basically, booties, coveralls,
2 gloves and face shields for them to wear. And so they wore
3 that while they were doing the scrubbing and the repainting
4 and fixing the fence. And then we, of course, had to lay down
5 tarps and plastic to ensure the ground -- the water from the
6 scrubbing didn't flow into the system and contaminate the
7 sewer system.
8 Q. What were the costs expended to clean up the blood, when
9 you referenced the suits and the gloves and the face shields
10 and all of that part?
11 A. The cost for the shields and the booties and the
12 coveralls was about $262, I believe.
13 Q. Were there materials purchased to repair the damaged
14 PIDAS fence?
15 A. We had the wire on hand. We purchased $49 worth of
16 supplies, such as a fence stretcher and additional clamps.
17 The fencing was available. But so it was about $49, I think,
18 of equipment required to fix the fence.
19 MS. KIRBY: Your Honor, Government's Exhibit Number
20 69 and 70 have been stipulated to by the defense.
21 THE COURT: Okay. Hearing no objection, they'll be
22 admitted.
23 MS. KIRBY: Thank you, Your Honor.
24 BY MS. KIRBY:
25 Q. Please look at Government's Exhibit Number 69. Do you
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1 recognize this exhibit?
2 A. Yes. That's the receipt for the wire stretcher and the
3 clamps that were used to stretch and then reattach the fence.
4 Q. And what was the total for those materials?
5 A. $49.37.
6 Q. Now, what was done to clean up the graffiti on the HEUMF
7 walls?
8 A. On the barricade, we used a high pressure cleaner to
9 scrub the barricade and get the graffiti and the material off.
10 And the same with the building, basically a high pressure
11 washer to scrub them down and disinfect them and then paint to
12 repaint them.
13 Q. Please look at what's been marked as Government's Exhibit
14 Number 70. Do you recognize Exhibit 70?
15 A. Yes, I do. That's the receipt for the paint. We
16 procured 20 five-gallon buckets of paint at $22.53 per bucket.
17 Q. To be clear, it was 20 five-gallon buckets of paint?
18 A. Yes.
19 Q. What was the total cost of those materials?
20 A. $450.60.
21 Q. Now, did you review business records and documents
22 associated with the repairs and cleanup of damages to Y-12
23 property with regard to the intrusion on July 28, 2012?
24 A. Yes, I did.
25 Q. And when were the repairs to the PIDAS area and the HEUMF
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1 building done?
2 A. Those repairs were done the very same day. So the
3 incident occurred early in the morning, and so those repairs
4 occurred over the next ten hours.
5 Q. And do you know what day of the week the incident
6 occurred and the repairs?
7 A. It was on a Saturday.
8 Q. Why was it so important to get workers out to the scene
9 to repair those damages that were done in PIDAS?
10 A. Well, the Perimeter Intrusion Detection Assessment
11 System, PIDAS, is the system that actually protects our areas
12 where we have all of the sensitive material. That fence is
13 about 2.75 miles long. But as long as we had an opening in
14 that fence, we had an opening in our security system and an
15 opening in PIDAS.
16 Q. So basically, was time of the essence in getting that
17 repaired and fully restored?
18 A. Correct. Any time you would have any type of reduced
19 security in your final protective line, if you will, that's
20 very serious.
21 Q. Did you receive documents from payroll, breaking down the
22 base cost of labor expended for those repairs and cleanup?
23 A. I did. We received copies of pay stubs for all of the
24 personnel that were involved, and all of them were annotated
25 as to how many hours were allocated for this mission because,
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1 of course, we had to call them in on a Saturday morning, so
2 they were all paid overtime for that time. So that was a
3 separate category from their regular paychecks.
4 Q. Please look at what's been marked as Government's
5 collective Exhibit 67, and this is 67-1 and 67-2.
6 THE COURT: Any objection to these?
7 MR. IRWIN: No, Your Honor.
8 MS. KIRBY: Your Honor, I should state that these
9 were also stipulated to as summaries by the defense, I
10 believe.
11 THE COURT: Okay. And so these can be admitted?
12 MR. LLOYD: Yes, Your Honor.
13 THE COURT: Okay. They're admitted.
14 BY MS. KIRBY:
15 Q. Do you recognize these two documents?
16 A. Yes. Those are both summary documents that were compiled
17 based on those payroll records for the personnel that were
18 involved in the cleanup and maintenance operations.
19 Q. And do these fairly and accurately summarize the base
20 costs of labor with regard to cleanup and repair around the
21 HEUMF building and the PIDAS as well as around the 229
22 perimeter boundary fence?
23 A. They do, for both sides. The painters and the carpenters
24 are listed for both of them and the truck driver and the
25 planner for the incident at the PIDAS.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 203 of 315 PageID #: 1733 JOHNSON - Direct 204
1 Q. What type of documents did you review with regard to the
2 total cost of repairs and cleanup of damages to Y-12 property
3 from the July 28, 2012 breach?
4 A. I reviewed the payroll records, and then I reviewed the
5 receipts for the material.
6 Q. Did you go through time sheets or any of that sort of
7 thing as well?
8 A. Yes. The time sheets were included in the payroll
9 records. The reason for that is, you know, these weren't
10 ordinary expenses. So any non-ordinary expenses, you know, I
11 have to review prior to us paying for them.
12 MS. KIRBY: Your Honor, the government also moves to
13 admit Government's Exhibit Number 68, agreed to by the
14 defense.
15 THE COURT: 68?
16 MS. KIRBY: Yes, Your Honor.
17 THE COURT: It will be admitted.
18 MS. KIRBY: This is a summary chart.
19 BY MS. KIRBY:
20 Q. Please look at Exhibit 68 and review that document. Does
21 that chart summarize the total cost of base labor and
22 materials fairly and accurately from the cleanup of repairs?
23 A. Yes, it does.
24 Q. What was the total cost paid to the painters who did the
25 pressure washing and the painting of the HEUMF and the PIDAS?
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1 A. $2,851.89 for the six painters.
2 Q. What was the total cost to pay the carpenters that
3 completed the PIDAS fence repair?
4 A. $3,107.31 for the carpenters.
5 Q. How did the materials reach the incident site?
6 A. The material was brought in by the truck driver.
7 Q. What was the cost of the truck driver to deliver those
8 supplies?
9 A. $404.40.
10 Q. Was there a foreman of some kind on site with the
11 carpenters and painters to ensure the work was completed
12 properly?
13 A. There was. There was a maintenance planner so that's a
14 person who would have had to come in, determine what work was
15 required to be done, make sure what sensors had to be shut off
16 so that we could work on the PIDAS, what alarms had to be shut
17 down. If you don't shut them down correctly, then they won't
18 come back on. And then supervise the repairs as they were
19 done and then make sure everything came back up operational
20 after it was -- after the work was completed.
21 Q. Was there also a supervisor on site during the repairs?
22 A. Yes, there was.
23 Q. Is that cost accounted for in the summary?
24 A. No, it's not.
25 Q. What was the total cost of the planner to assist with the
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1 repairs and to shut down the sensors and everything just
2 described?
3 A. $429.78.
4 Q. Additionally, did Y-12 work crews repair the 229 boundary
5 fence around the perimeter of the complex?
6 A. Yes, they did.
7 Q. What was the total cost to pay to carpenter to repair the
8 229 boundary fence?
9 A. $451.75.
10 Q. What was the cost to pay the laborers who assisted with
11 the 229 boundary fence repair?
12 A. $524.18.
13 Q. Again, are these all just the base costs of labor?
14 A. Yes, those are the base costs. There's no fringe costs
15 or overhead on there.
16 Q. You stated this occurred on a Saturday. What did that
17 mean in the terms of the way these people are paid on a
18 Saturday?
19 A. They're paid overtime, paid time and a half, as hourly
20 workers.
21 Q. What was the grand total cost of all the materials, the
22 base pay for all the carpenters, painters and drivers required
23 to decontaminate and repair the damage as a result?
24 A. $8,531.67.
25 Q. Were there any additional add-on costs associated with
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1 the defendants' breach into Y-12 that are not accounted for in
2 the figures you've discussed?
3 A. Yes, there were a number of costs. We brought in extra
4 security personnel, obviously, before and after -- the day of
5 and then after. We had other improvements we made later on.
6 We added additional repairs, but those costs aren't included
7 in these.
8 Q. Okay. Are these figures just the base amount totals of
9 actual damage to government property at Y-12 as a direct
10 result of the defendant's intrusion on July 28, 2012?
11 A. Yes.
12 Q. Were the base costs to repair the damage to the
13 government property or injury in excess of a thousand dollars?
14 A. Yes.
15 Q. Why were so many workers brought in to complete the
16 repairs?
17 A. Well, the intent is to complete the repairs as quickly as
18 possible. You know, repair the gap in the PIDAS as quickly as
19 possible, reestablish security to its normal operating
20 procedures.
21 Q. Why couldn't a few guys from maybe like an outfit like
22 Champion Fence just come in and make the repairs?
23 A. Basically, because they don't have the required
24 clearance. All of our personnel, to go into PIDAS, have to go
25 through the background check procedures and get a Q-level
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 207 of 315 PageID #: 1737 JOHNSON - Cross 208
1 clearance, and so your person from off the street doesn't have
2 that required clearance.
3 Q. Were there also any concerns too with the blood on the
4 scene at the time?
5 A. Excuse me?
6 Q. Were there any concerns with the blood that was on the
7 scene at the time that the repairs were made?
8 A. I mean, we were -- we were -- we took precautions because
9 of concern over contamination, and that's why we got the
10 protective clothing and protective gear.
11 MS. KIRBY: Just one moment, please.
12 (Ms. Kirby and Mr. Theodore counsel conferred.)
13 MS. KIRBY: Your Honor, I have no further questions
14 of this witness at this time.
15 THE COURT: Okay. Cross.
16 CROSS-EXAMINATION
17 BY MR. IRWIN:
18 Q. Good afternoon. Is it General Johnson?
19 A. Yes.
20 Q. General Johnson, I just have some quick questions. You
21 said it took five 25-gallon containers of paint?
22 A. It took 20 five-gallon containers of paint.
23 Q. Okay. And $49 to fix the fence?
24 A. $49 was the supplies to fix the fence. The fence
25 material itself, we had on hand.
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1 Q. I see. And by damaged concrete barriers, you mean that
2 there was some blood poured on it?
3 A. Yes. The concrete barriers, we just had to power scrub
4 those.
5 Q. All right. In the bills, there were no bullet holes that
6 needed to be patched?
7 A. No.
8 Q. There was no hole blown in the side of the facility that
9 you had to fix?
10 A. No.
11 Q. There was no damage to the entrance of the facilities
12 that you had to fix?
13 A. Entrance to what?
14 Q. Entrance to the -- the HEUMF facility.
15 A. No, there was not.
16 Q. And it took you ten hours on a Saturday to fix it?
17 A. Correct.
18 MR. IRWIN: No further questions.
19 THE COURT: Mr. Lloyd?
20 CROSS-EXAMINATION
21 BY MR. LLOYD:
22 Q. General, again, Francis Lloyd. I represent Sister Megan.
23 I believe we met just outside the courtroom?
24 A. Yes, we did.
25 Q. Good to meet you, sir. I'm a little confused. Maybe you
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 209 of 315 PageID #: 1739 JOHNSON - Cross 210
1 can help me. Are you employed by B&W Y-12 LLC?
2 A. Yes, I am.
3 Q. Okay. And that is a contractor that has a contract to
4 manage and operate Y-12, correct?
5 A. That is correct.
6 Q. And only recently has it also become responsible for pro
7 force security there?
8 A. That is correct. The pro force contract at that time was
9 operated by Wackenhut, and B&W had the safeguard security part
10 of the contract, which means we oversaw security, managed
11 security, installed security -- installed and managed security
12 systems.
13 Q. Okay. Now, we've heard earlier today Wackenhut is gone.
14 Is your company, your employer, is it under review as a
15 contractor?
16 A. Yes. Our contract expired and so we rebid the contract,
17 along with fellow competitors, and we're waiting for that
18 contract to be awarded.
19 Q. So you -- now, is B&W allied with someone in trying to
20 get this new contract?
21 A. Yes, we are.
22 Q. And that is maybe Jacobs Engineering?
23 A. It's a little bit above my pay grade, but I think Jacobs
24 Engineering is one of the three or four partners. I think
25 each one of the competitors has three or four partners.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 210 of 315 PageID #: 1740 JOHNSON - Cross 211
1 Q. Okay. Do you know who the other competitors are?
2 MS. KIRBY: Objection, Your Honor. Beyond the scope
3 of direct.
4 THE COURT: Sustained. Move on.
5 BY MR. LLOYD:
6 Q. Is it fair to say, sir -- we still have the cost of
7 repairs up here -- almost all of these expenses are labor
8 expenses, correct?
9 A. Yes, they are.
10 Q. As a matter of fact, looking at the items on this list,
11 we have carpenters, painters, truck driver and a maintenance
12 planner, correct?
13 A. Correct.
14 Q. All right, sir. And then under repairs to the 229
15 boundary fence, we have carpenters and labors, correct?
16 A. Correct.
17 Q. If we exclude labor costs, this would come out to less
18 than a thousand dollars, wouldn't it?
19 A. That is correct.
20 Q. All right. Now, with respect to the repairs to the 229
21 boundary fence, were those the first repairs done, or were the
22 repairs done later in December?
23 A. The repairs were done in December.
24 Q. Okay. So we're not counting the first repair of a site
25 that apparently was the wrong site, correct?
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1 A. We did not repair anything on the 229 boundary the day of
2 that event, correct.
3 Q. Okay. As a matter of fact, you did not -- you were not
4 aware, until the defendants made the government aware, of
5 where the repairs were needed on the 229 boundary, correct?
6 A. Repairs were needed on the 229 boundary at that location.
7 I personally don't know if that's where they entered the fence
8 or not.
9 Q. Are you aware that there was an earlier repair that
10 wasn't at the right entry site?
11 A. No, there was no repair earlier.
12 Q. Okay. Now, all the people listed here as contributing to
13 labor costs, are they all B&W Y-12 employees?
14 A. Yes, they are.
15 Q. All right, sir. And are they all union employees?
16 A. I believe they're all union employees.
17 Q. And they're --
18 A. I know the carpenters and painters would be. The
19 supervisor -- the maintenance planner probably is not a union
20 employee.
21 Q. May be management?
22 A. Probably management.
23 Q. All right, sir. And the costs attributed to them on this
24 document are according to the pay scales that they're paid at
25 overtime for Saturday work, correct?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 212 of 315 PageID #: 1742 JOHNSON - Cross 213
1 A. Correct.
2 Q. All right, sir. And your employer or you, I guess -- you
3 would be the only person in charge of seeking to have these
4 repairs done, correct?
5 A. I'm not sure I understand the question.
6 Q. Poorly asked, and I'm sorry. General, are you the man in
7 charge of getting -- making sure these repairs are done?
8 A. I'm the individual in charge of security. We have
9 another individual who's in charge of maintenance, and the
10 maintenance folks certainly provide support to us as required.
11 Q. So someone who reports to you is directly in charge of
12 getting repairs like this done?
13 A. Correct.
14 Q. All right, sir. It wasn't possible in this case to bid
15 out this work, was it?
16 A. No, because it needed to be done -- number one, it needed
17 to be done right away. The bid process takes a while. Number
18 two, there's a clearance issue.
19 Q. All right, sir. So as we are here today, we don't know
20 whether it could have been done more cheaply, do we?
21 A. No, we don't.
22 Q. And we don't know who else might have provided this work
23 for less than the amount shown, do we?
24 A. I have no way of knowing that.
25 Q. Not anything -- you didn't undertake a comparison for
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 213 of 315 PageID #: 1743 JOHNSON - Cross 214
1 that purpose?
2 A. No, we did not.
3 MR. LLOYD: All right, sir. General, before I
4 forget, thank you for your service to our country.
5 THE WITNESS: Thank you.
6 CROSS-EXAMINATION
7 BY DEFENDANT BOERTJE-OBED:
8 Q. Just a few questions. I have a special interest, because
9 I'm a house painter. And so you showed that bill that
10 you people purchased 20 gallons of five gallon containers of
11 paint. If I multiply that out, it looks like you purchased
12 100 gallons of paint. Is that correct?
13 A. Yes, according to the receipt.
14 Q. And do you know if there was any paint left over?
15 A. No, I don't.
16 Q. Because it seems to me that's quite excessive. So have
17 you ever painted a room or hired somebody to paint a room in
18 your house?
19 A. Yes, I have.
20 Q. Do you recall about how much paint it took to cover one
21 room?
22 A. No.
23 Q. I can suggest perhaps it takes about a gallon.
24 MS. KIRBY: Objection, Your Honor.
25 THE COURT: Sustained. You can ask it a different
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 214 of 315 PageID #: 1744 JOHNSON - Cross 215
1 way.
2 DEFENDANT BOERTJE-OBED: No more questions.
3 THE COURT: Okay. Any redirect?
4 MS. KIRBY: Just one question, Your Honor.
5 REDIRECT EXAMINATION
6 BY MS. KIRBY:
7 Q. On this total list of costs of repairs, did you include
8 the cost for the painting supplies, the rollers, the buckets,
9 the --
10 A. No, we did not.
11 Q. -- ladders? Did you include the cost of using pressure
12 washer, any expenses that go with that?
13 A. No, we did not.
14 Q. Did you include the tarps that were used that you
15 referenced earlier?
16 A. No.
17 Q. What about the fencing that was replaced?
18 A. No.
19 Q. So were those costs -- were those items, items that maybe
20 were already on hand that were used?
21 A. Yes, those were items that were already on hand, and
22 would have came out of our maintenance budget.
23 Q. And those, none of those costs were included in this
24 figure?
25 A. No, they were not.
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1 MS. KIRBY: Just one moment, please.
2 (Ms. Kirby and Mr. Theodore conferred.)
3 BY MS. KIRBY:
4 Q. So basically, the costs that are listed on this summary,
5 are these all extra costs above what would have been on hand
6 to use to repair?
7 A. Yes, if the incident would not have occurred, we would
8 have not -- not did this. We would not have spent any of this
9 money.
10 MS. KIRBY: Thank you. I have no further questions,
11 Your Honor.
12 THE COURT: Okay. May this witness be excused?
13 MR. IRWIN: Yes, Your Honor.
14 MR. LLOYD: Your Honor, I have a follow-up question,
15 if I might.
16 THE COURT: One.
17 MR. LLOYD: Thank you.
18 RECROSS-EXAMINATION
19 BY MR. LLOYD:
20 Q. General, in your budget for protective force matters, is
21 there an item or items in the budget for simulations of
22 intruders coming into Y-12?
23 A. Yes, I have a -- I have a vulnerability assessment group
24 that runs simulations and so we fund that group and run
25 simulations, yes.
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1 THE COURT: Anything further?
2 BY MR. LLOYD:
3 Q. Does that budget include any estimates of damage from a
4 hypothetical intrusion?
5 A. No.
6 MR. LLOYD: That's all, Your Honor.
7 THE COURT: May this witness be excused now?
8 MR. LLOYD: Yes, Your Honor.
9 MS. KIRBY: No further questions. Thank you, Your
10 Honor.
11 THE COURT: Okay. Thank you, sir. You're free to
12 go.
13 THE WITNESS: Thank you.
14 THE COURT: Please call your next witness.
15 MR. THEODORE: Yes, Your Honor. The Government calls
16 Special Agent Ryan Baker to the stand.
17 RYAN BAKER, GOVERNMENT'S WITNESS, SWORN
18 DEPUTY CLERK: Please be seated. Speak into the
19 microphone. State and spell your name for the record, please.
20 THE WITNESS: Ryan Baker, R-y-a-n, B-a-k-e-r.
21 DIRECT EXAMINATION
22 By MR. THEODORE:
23 Q. Can you state your name and occupation, please.
24 A. Ryan Baker, special agent with the Department of Energy,
25 Office of Inspector General.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 217 of 315 PageID #: 1747 BAKER - Direct 218
1 Q. How long have you had that job?
2 A. Going on three years.
3 Q. Did you work on law enforcement before that?
4 A. Yes, sir, my entire career has been. I worked for the
5 U.S. Department of Agriculture prior to working here. I
6 worked for the Bureau of Alcohol, Tobacco & Firearms, and
7 started my career as a deputy sheriff in South Carolina.
8 Q. How long in law enforcement altogether?
9 A. Since 2002. Well, since 2001.
10 Q. Have you been one of the primary investigators in this
11 matter here today?
12 A. Yes, sir.
13 Q. Were you working for DOE OIG back on July 28, 2012?
14 A. Yes, sir.
15 Q. And were you working on that particular day?
16 A. No, sir. It was a Saturday so I was off. I got called
17 in to work that morning.
18 Q. You got called in to work?
19 A. Yes, sir.
20 Q. About what time was that?
21 A. My phone started ringing probably about 6:00-ish and I
22 got to the Y-12 complex a little after 7:00.
23 Q. And what happened once you got there?
24 A. There was another agent that was working the case with
25 me, his name was Special Agent Eric Dugger. He arrived on the
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1 scene prior to my arrival. He had already met with the Y-12
2 pro force individuals, and he had met with the three
3 individuals that were taken into custody. He read them their
4 Miranda rights, and we were -- he was in the process of
5 escorting them to one of our vehicles when I arrived on the
6 scene.
7 Actually, when I arrived on the scene -- due to working
8 at DOE, we've had protesters in the past. So when the call
9 came in that we had, you know, trespassers on the property, I
10 assumed it was at the front gate. So I pulled up to the front
11 gate and stopped and looked around and didn't see my coworkers
12 or anything else going on. And I called him, and he told me
13 to continue on past the Jack Case Building to the HEUMF. So I
14 did that.
15 As I drove along, I noted that there was spray painted
16 graffiti on the side of the building. There was spray painted
17 graffiti on what's called the vehicle barricade, the cement
18 block in front of the building, and there were banners and
19 items hanging along that fence.
20 I pulled into the parking lot and met with my coworker,
21 helped take the three individuals into custody, placed them in
22 one of our vehicles to transport them to the detention center.
23 Q. Okay. So you actually helped place them into custody?
24 A. Yes, sir.
25 Q. After the protective force apprehended them initially?
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1 A. Yes, sir. We took the zip ties off of them, and we
2 placed them in handcuffs, patted them down again and placed
3 them in our vehicle.
4 Q. I want to show you some exhibits here.
5 MR. THEODORE: Your Honor, I have Government's
6 Exhibit 12, 13, 14 and 15, which I believe --
7 THE COURT: They're already admitted.
8 BY MR. THEODORE:
9 Q. Agent Baker, let me show you Government's Exhibit
10 Number 12. Do you recognize what's shown there?
11 A. Yes, sir. That's the vehicle barricade that I was
12 talking about that's in front of the HEUMF, and that's the
13 spray paint that was along the bottom of it that morning.
14 Q. So where that "disarm transform" is, that's -- is that a
15 cement barricade there?
16 A. Yes, sir.
17 Q. That was one of the PIDAS fences?
18 A. Yes, sir. This is the outermost PIDAS fence.
19 Q. Okay.
20 A. So if you were standing on the road looking at the
21 building, that would be the first fence and the first
22 barricade you saw.
23 Q. From the outside?
24 A. Outside looking in.
25 Q. Let me show Government's Exhibit Number 13. Do you
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 220 of 315 PageID #: 1750 BAKER - Direct 221
1 recognize what's shown there?
2 A. Yes, sir. It's again that same barricade with more spray
3 paint and what appears to be blood that had been poured on the
4 concrete as well.
5 Q. Government's Exhibit 14?
6 A. Yes, sir. Same vehicle barricade, different spray paint
7 location. "Peace Not War."
8 Q. Government's Exhibit Number 15.
9 A. Same vehicle barricade, that's some more blood that looks
10 like it had been poured on the concrete.
11 Q. I want to show you Government's Exhibit Number 21.
12 A. That's a hole that was cut in the PIDAS fence.
13 Q. Did you observe that?
14 A. That's one of the interior fences, yes, sir.
15 Q. Thirty-two?
16 A. That's a hole that -- that was a hole that was cut in the
17 middle fence. That's a straight line.
18 Q. And Government's Exhibit Number 33?
19 A. That's the hole that was cut in the outermost fence so if
20 you're on the road looking in, that would be the first fence
21 you saw.
22 Q. Okay. Other than these -- let me ask, you're
23 describing -- you saw those PIDAS fences there at that time.
24 You saw where they were cut?
25 A. Yes, sir.
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1 Q. I'm sorry. You have to say yes or no.
2 A. Yes, sir.
3 Q. Did you see any work -- any people working in that
4 afterward?
5 A. So after we transported the three individuals to the
6 Blount County Detention Center, I went back to the Y-12
7 complex to pick up the evidence, and I collected that from the
8 SPOs that were working that day. Took the evidence into our
9 custody.
10 And then as I -- even before we left with the three
11 individuals in our vehicle, they had already hung up blue
12 tarps to cover up what had been spray painted. So I observed
13 that as we were driving out with them in the vehicle.
14 When I came back on the site, there were already people
15 pressure washing the building, and there was people inside the
16 PIDAS. I don't know if they were doing repairs to the actual
17 fences. I didn't see them pulling fences together and cabling
18 them together, but there were people inside the PIDAS working.
19 They had on, you know, worker clothes.
20 Q. You couldn't see exactly what they were doing?
21 A. Correct. I couldn't see what their hands were doing, but
22 they were inside the PIDAS working.
23 Q. Inside the PIDAS working, okay.
24 A. And then on the following Monday, I had to go back out to
25 the Y-12 site and observed individuals. This time, they would
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 222 of 315 PageID #: 1752 BAKER - Direct 223
1 have been on the inside of the PIDAS, closest to the HEUMF, in
2 between the building and the PIDAS, but still working on the
3 fences and still individuals within the PIDAS fences as well.
4 Q. Doing what?
5 A. Making repairs or running tests is what it looked like.
6 Q. I want to show you Government's Exhibit proposed exhibits
7 44 and 45. I don't believe there's any objection to these,
8 Your Honor.
9 THE COURT: Okay. Hearing no objection, they'll be
10 admitted.
11 BY MR. THEODORE:
12 Q. Show you Government's Exhibit Number 44. Do you
13 recognize what's shown there?
14 A. 229 boundary fence that had damage done to it at some
15 point and was -- had been held together with like a little
16 metal band that normally goes around the fence. That band
17 wasn't present at the bottom, and it was a zip tie.
18 Q. Okay. And showing you Government's Exhibit Number 45,
19 what's depicted there?
20 A. It's the 229 boundary fence again. Again, you can see
21 right here is the middle type clip that's normally used.
22 Below it is the zip tie. It appears to be a piece of string.
23 Q. Let me ask you, on that fence, as you go down on that
24 fence, you said that's the 229 boundary fence?
25 A. Yes, sir.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 223 of 315 PageID #: 1753 BAKER - Direct 224
1 Q. Do you see anything else on there, on that fence?
2 A. Yes, sir. These yellow No Trespassing signs --
3 Q. Okay.
4 A. -- are along the entire length of the fence. Even when
5 it's not chain link like this, it turns into like a
6 three-strand wire fence, and it still has the No Trespassing
7 signs.
8 Q. So that No Trespassing sign, was that by where the breach
9 was in this fence that you showed?
10 A. Yes, sir.
11 Q. How spaced out are those?
12 A. Just depends on what section of the fence you're looking
13 at. They're anywhere from about -- normally about five to ten
14 yards apart, I think, would be the furthest.
15 Q. Does the extend along the entire 229 boundary?
16 A. Yes, sir.
17 Q. You mentioned that you went back to retrieve some
18 evidence; is that right?
19 A. Yes, sir.
20 Q. What type of evidence did you retrieve in this case, just
21 generally?
22 A. General items were hammers, bolt cutters, banners,
23 pamphlets, paper, candles, binoculars, coats, backpacks,
24 things along those lines.
25 Q. Okay. I want to show you what's been marked as
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 224 of 315 PageID #: 1754 BAKER - Direct 225
1 Government Exhibit 54.
2 THE COURT: Any objection?
3 MR. LLOYD: No.
4 MR. IRWIN: No, Your Honor.
5 THE COURT: It will be admitted.
6 BY MR. THEODORE:
7 Q. Agent Baker, do you recognize what's shown in that
8 photograph?
9 A. Yes, sir, there's baby bottles with what was later
10 determined to be human blood that I collected that morning,
11 Saturday, July 28.
12 Q. Was that evidence from the scene?
13 A. Yes, sir.
14 Q. I want to show you what's been marked as Government's
15 Exhibit 38, collective, 1 and 2.
16 MR. THEODORE: I don't believe there's any objection
17 from the defense, Your Honor.
18 MR. IRWIN: No objection, Your Honor.
19 THE COURT: They'll be admitted.
20 BY MR. THEODORE:
21 Q. Showing you first Government Exhibit 38-1, do you
22 recognize that?
23 A. Yes, sir. This was -- so on one of the hammers I
24 collected, it had strands of t-shirt type material, and then
25 written along the strands were different messages. And this
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 225 of 315 PageID #: 1755 BAKER - Direct 226
1 is one of those strands. Do you need me to read it?
2 Q. Yes, for the record.
3 A. "It is a sin to build a nuclear weapon" and it's Father
4 Richard McSorley, SJ.
5 Q. Showing you Exhibit 38-2, do you recognize that?
6 A. Yes, sir. These were strands that were also attached to
7 same hammer.
8 Q. Go ahead. You can read those statements.
9 A. "The United States is the chief --" I can't read that
10 word.
11 Q. Is that purveyor?
12 A. Could very well be, sir. "Of violence in the world
13 today." Dr. Martin Luther King.
14 "Every dollar that is spent on armaments is a theft from
15 the poor." Dwight D. Eisenhower.
16 "Oppose the culture of death." Pope John Paul II.
17 "All war making preparations in the Middle East represent
18 a major defeat for international law." Pope John Paul II,
19 January, 1991.
20 "Peace is the fruit of justice. The word of God," and it
21 says "I surrender all to you, Lord Jesus."
22 Q. Let me show you Government's Exhibit 42.
23 MR. THEODORE: I don't believe there's any objection.
24 THE COURT: Any objection?
25 MR. LLOYD: No, Your Honor.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 226 of 315 PageID #: 1756 BAKER - Direct 227
1 THE COURT: Admitted.
2 BY MR. THEODORE:
3 Q. Do you recognize that?
4 A. Yes, sir. That was a helmet that was found across the
5 street from the HEUMF in one of the fields when they were
6 cutting grass a few weeks after July 28.
7 Q. That was taken into evidence?
8 A. Yes, sir.
9 Q. Show you Government's Exhibit 43.
10 MR. IRWIN: No objection, Your Honor.
11 MR. LLOYD: No objection.
12 THE COURT: No objections?
13 MR. IRWIN: No, Your Honor.
14 THE COURT: It will be admitted.
15 BY MR. THEODORE:
16 Q. Is that a photograph?
17 A. Yes, sir.
18 Q. And can you tell me what's -- do you recognize any of the
19 figures in that photograph?
20 A. Yes, sir. That's Mr. Michael Walli, Miss Megan Rice and
21 Mr. Greg Boertje-Obed, the three individuals we took into
22 custody July 28.
23 Q. And I believe that in the last exhibit, that helmet, does
24 that appear, at least, to be similar to the helmet that was
25 found on the lawn?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 227 of 315 PageID #: 1757 BAKER - Direct 228
1 A. Yes, sir. All the items they appear to be holding, the
2 banners, binoculars, are similar to the ones taken into
3 custody that morning taken into evidence.
4 MR. THEODORE: I don't believe there's any objection.
5 I'd move for admission of Government's Exhibit 48.
6 MR. IRWIN: No objection, Your Honor.
7 MR. LLOYD: No objection.
8 THE COURT: It will be admitted.
9 BY MR. LLOYD:
10 Q. I'm going to ask Agent Day if she can help display that
11 with Agent Baker. Is that okay, Your Honor? It's a banner.
12 MR. IRWIN: No objection.
13 THE COURT: That's fine.
14 THE WITNESS: (Complies.)
15 MR. THEODORE: Very well. Thank you. That's fine.
16 Your Honor, I'd move for admission of Government's
17 Exhibit 48A as a substitute exhibit for that, for the record.
18 THE COURT: Any objection to that?
19 MR. IRWIN: No, Your Honor.
20 MR. LLOYD: No, Your Honor.
21 THE COURT: Okay.
22 BY MR. THEODORE:
23 Q. I'd like to show Exhibit 48B -- I'm sorry, 48, the flip
24 side of that. That's on the other side; is that correct? Was
25 that seized from the scene, Agent Baker?
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 228 of 315 PageID #: 1758 BAKER - Direct 229
1 A. Yes, sir. This was hanging on the PIDAS fence. It was
2 seized from the scene. I collected it from the scene and took
3 it into evidence.
4 Q. Can you hold it up so the judge can see as well?
5 A. Yes.
6 MR. THEODORE: Your Honor, I'd move for admission of
7 Government's Exhibit 48B as a substitute for the record.
8 THE COURT: Any objection to that?
9 MR. LLOYD: No objection.
10 MR. IRWIN: No, Your Honor.
11 THE COURT: It will be admitted.
12 MR. THEODORE: One moment, Your Honor.
13 BY MR. THEODORE:
14 Q. Agent Baker, let me show you what's been marked as
15 Government's Exhibit 20.
16 MR. THEODORE: I don't believe there's any objection.
17 MR. IRWIN: No objection, Your Honor.
18 THE COURT: It will be admitted.
19 BY MR. THEODORE:
20 Q. Do you recognize what's shown in that photograph?
21 A. Yes, sir, it's another banner I collected and took into
22 evidence.
23 Q. Was that another banner left at the scene?
24 A. Yes, sir.
25 MR. THEODORE: Your Honor, at this time, I have
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 229 of 315 PageID #: 1759 BAKER - Direct 230
1 Government's Exhibit Number 66. It's a disk with some media
2 on it. We have reviewed this with the defense. I do not
3 believe they have any objection to it.
4 MR. IRWIN: No, Your Honor.
5 MR. LLOYD: No objection.
6 THE COURT: No objections?
7 MR. LLOYD: No objection, Your Honor. There are more
8 recordings, and I believe some of the defendants will want the
9 longer recordings played.
10 MR. THEODORE: Under the rule of completeness, I
11 think they would like to have some other recordings, which we
12 have no objection if they want to play some of those if they
13 want to put it in context. We just have portions right here.
14 THE COURT: Any objection to that?
15 MR. LLOYD: No.
16 MR. IRWIN: No, Your Honor.
17 THE COURT: It will be admitted.
18 MR. THEODORE: Again, this is Government's Exhibit
19 Number 66.
20 BY MR. THEODORE:
21 Q. Before you actually start playing anything from that,
22 Agent Baker, did you, in part of your investigation, did you
23 acquire any additional evidence concerning the defendants as
24 far as any statements they may have made after the incident?
25 A. Yes, sir. From the Blount County Sheriff's Office, they
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 230 of 315 PageID #: 1760 BAKER - Direct 231
1 made recordings of the calls made from the jail. Normal
2 course of business. And there's actually a warning when
3 anybody makes a phone call from the detention center that says
4 this phone call may be recorded and used later.
5 I collected -- or we got, obtained copies of the
6 jailhouse calls, and the Federal Bureau of Investigation made
7 official transcripts that we use in our cases. And then just
8 one of the normal course of steps that we use when we're doing
9 an investigation is to review media documents, any news
10 articles and the like that may address the case.
11 And some of the clips from this CD also contain, like,
12 news interviews, whether they be on radio, television, or on
13 the internet that would have been collected throughout the
14 course of the investigation.
15 Q. You said the jail calls were made at the Blount County
16 Jail?
17 A. Blount County Detention Center, yes, sir.
18 Q. Is that where you took them that morning?
19 A. That's where we transported them.
20 Q. How long did they stay there?
21 A. I believe Mr. Walli and Miss Rice were released
22 approximately August 20th, and Mr. Obed was released at a
23 later date.
24 Q. Okay. And you said -- and then you acquired some of the
25 phone calls they made from there?
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1 A. Yes, sir.
2 Q. And that includes those phone calls, some of the phone
3 calls?
4 A. Yes, sir.
5 Q. And what other statements did you get, did you say?
6 A. One would have been radio interview with Miss Rice on the
7 HHH Morning Show.
8 Q. Is that Hallerin Hilton Hill?
9 A. Yes, sir.
10 Q. Okay.
11 A. And then it would have been a couple of YouTube
12 interviews that Mr. Walli, Mr. Obed and Miss Rice did with the
13 Knox news sentinel.
14 Q. Okay.
15 MR. THEODORE: Your Honor, I'd like to at this point
16 publish some of these, starting with Mr. Obed -- Mr.
17 Boertje-Obed's call from the jail that's been identified if
18 you could start with that.
19 (A portion of Exhibit 66 was played in open court.)
20 MR. THEODORE: I'd like to play the next clip from
21 Mr. Boertje-Obed, also from the jail. Call to HEUMF.
22 (A portion of Exhibit 66 was played in open court.)
23 MR. THEODORE: I'd like to play the next tape of Mr.
24 Boertje-Obed as well.
25 (A portion of Exhibit 66 was played in open court.)
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1 BY MR. THEODORE:
2 Q. Agent Baker, do you happen to know what the UPF is?
3 A. It's a uranium processing facility in the process of
4 being built at Y-12.
5 MR. THEODORE: I'd like to play the next tape of Mr.
6 Boertje-Obed.
7 (A portion of Exhibit 66 was played in open court.)
8 MR. THEODORE: I want to show another tape of Mr.
9 Boertje-Obed, TV tape.
10 THE COURT: While you're doing that, can you pause it
11 for a second, and can counsel approach?
12 (Sidebar conference as follows:)
13 THE COURT: Mr. Irwin, obviously, you and Mr. Lloyd,
14 at the very least, indicated that you reviewed this and I
15 assume Mr. Hutson as well or Mr. Boertje-Obed. You're all
16 nodding yes. Okay. And I haven't noticed any inaccuracies in
17 the transcripts. I'm wondering if you all did it all during
18 your -- I mean, you didn't object to them, obviously. But did
19 you notice anything? I haven't noticed any. I mean, there
20 are minimal transcripts and the calls are very clear, but I
21 want to --
22 MR. LLOYD: I've been watching, Your Honor. I
23 haven't noticed any.
24 MR. IRWIN: It seems like it's definitely out of
25 context. They're reading snippets in the overall context.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 233 of 315 PageID #: 1763 BAKER - Direct 234
1 THE COURT: You can play the full call. There's no
2 question you're entitled to do that. Do those full calls have
3 transcripts as well or just the --
4 MR. THEODORE: Not necessarily all of them, and I can
5 say those transcripts were reviewed with the defense counsel.
6 MR. LLOYD: And we reviewed them in rough form.
7 MR. THEODORE: And made corrections.
8 MR. LLOYD: They had an IT person there. I remember
9 pointing out some things that were inaccurate. I think any
10 concern for my part would be alleviated, Your Honor, to the
11 extent I have any concern, simply by a standard instruction
12 that the audio recording controls over the transcript.
13 THE COURT: I'll give that now, okay? I'll give that
14 now, and then what will go back with the jury. I'll allow the
15 calls to go back but not the transcript portion. So they can
16 take the calls back.
17 MR. LLOYD: Thank you, Your Honor.
18 (Sidebar conference concluded.)
19 THE COURT: Ladies and gentlemen, you're hearing some
20 tape recordings and potentially some video evidence that were
21 received in evidence. As you just heard, I admitted them into
22 evidence. You've seen on the screen some written transcripts
23 of the tapes. Keep in mind that the transcripts themselves
24 are not evidence. So, A, they're not going to go back with
25 you, okay. The calls will, but the transcripts will not.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 234 of 315 PageID #: 1764 BAKER - Direct 235
1 And they're only given to you as a guide to help you
2 follow what was being said. The tapes themselves are the
3 evidence, or in this case, the disk with the audio on it. If
4 you notice any differences between what you hear on the audio
5 and what you read in the transcripts, you must rely on what
6 you heard, not what you read. Does everyone understand that?
7 You're all nodding yes.
8 And if you could not hear or understand certain parts of
9 the audio, you must ignore the transcript as far as those
10 parts are concerned. So if you don't hear something, then the
11 transcript has no bearing. Does everyone understand that?
12 And again, the transcripts themselves are not evidence, only
13 the audio is, okay?
14 All right. You may proceed.
15 MR. THEODORE: Thank you, Your Honor. We're going to
16 play a TV clip of Mr. Boertje-Obed.
17 (A portion of Exhibit 66 was played in open court.)
18 MR. THEODORE: The next clip is again another TV
19 clip, Mr. Boertje-Obed, a TV tape.
20 (A portion of Exhibit 66 was played in open court.)
21 MR. THEODORE: The next clip is with Sister Megan
22 Rice. It's a jail call, description of entry.
23 (A portion of Exhibit 66 was played in open court.)
24 MR. THEODORE: The next clip is also a jail call of
25 Sister Megan Rice. Cut through fences.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 235 of 315 PageID #: 1765 BAKER - Direct 236
1 (A portion of Exhibit 66 was played in open court.)
2 MR. THEODORE: The next one is also another jail call
3 by Sister Megan Rice. Defaced wall.
4 (A portion of Exhibit 66 was played in open court.)
5 MR. THEODORE: The next clip is Sister Megan Rice
6 with -- during a radio show, HHH or Hallerin Hilton Hill Show.
7 (A portion of Exhibit 66 was played in open court.)
8 MR. THEODORE: This is another clip from the Hallerin
9 Hilton Hill Show, with Sister Megan Rice.
10 (A portion of Exhibit 66 was played in open court.)
11 MR. THEODORE: This next clip is of Mr. Walli, a jail
12 call that he made.
13 (A portion of Exhibit 66 was played in open court.)
14 MR. THEODORE: The next one is Mr. Walli in an
15 interview, TV news interview.
16 (A portion of Exhibit 66 was played in open court.)
17 MR. THEODORE: The next one is also of Mr. Walli in a
18 TV interview.
19 (A portion of Exhibit 66 was played in open court.)
20 MR. THEODORE: Your Honor, that may conclude. I'd
21 like one moment, if I could.
22 THE COURT: Yes.
23 MR. THEODORE: Thank you.
24 (Mr. Theodore and Ms. Kirby conferred.)
25 MR. THEODORE: Nothing further, Your Honor.
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 236 of 315 PageID #: 1766 BAKER - Cross 237
1 THE COURT: Cross.
2 CROSS-EXAMINATION
3 BY MR. QUIGLEY:
4 Q. Good afternoon. Bill Quigley for defendants. Your
5 interactions with defendants, were they at all violent with
6 you when you saw them?
7 A. No, sir. We just placed them in handcuffs, put them in
8 our vehicle, and then they really didn't talk to us on the
9 ride to the Blount County Detention Center that morning. We
10 picked them up Monday morning again to bring them over here to
11 transfer them to the marshals' custody, and they didn't speak
12 with us.
13 Q. They didn't give you any trouble?
14 A. No, sir.
15 MR. QUIGLEY: That's all I have. Thanks.
16 THE COURT: Thank you.
17 MR. QUIGLEY: Can I ask one more?
18 THE COURT: Absolutely.
19 MR. QUIGLEY: Can I pull up Exhibit 20, please?
20 THE COURT: It's the photo, Swords Into Plowshares.
21 Did you find it, Mr. Quigley?
22 DEPUTY CLERK: It's probably next to last.
23 MR. QUIGLEY: Here it is.
24 BY MR. QUIGLEY:
25 Q. Swords Into Plowshares, Spears Into Pruning Hooks. The
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1 other, a flower, a star, a peace symbol, a heart, and a happy
2 face?
3 A. Yes, sir.
4 Q. And then the last question I have is Government
5 Exhibit 45, this fence break on that outer perimeter --
6 A. Yes, sir.
7 Q. -- when was that discovered?
8 A. December 20th, I believe.
9 Q. And do you remember why it was discovered?
10 A. So a couple weeks after the incident, myself and Special
11 Agent Dugger were charged with walking the fence line to see.
12 There was a lot of repairs to the fence along the way, and we
13 didn't know specifically what we were looking for. And it's
14 my understanding that when this was found, the clip at the
15 bottom was actually on the outside of the fence so it was kind
16 of easily mistaken. But it was December 20th when it was
17 relayed to us that there had been an additional cut to the
18 fence located, and we went out to look at it.
19 Q. And you don't know whether the defendants alerted your
20 office or the U.S. attorney or the Court about that?
21 A. No, sir, I'm not sure how we got notified.
22 MR. QUIGLEY: Okay. Thank you.
23 THE COURT: Mr. Lloyd.
24 MR. LLOYD: Your Honor, very briefly. If I might
25 have Exhibit 38-2.
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1 MR. THEODORE: Should be up there.
2 CROSS-EXAMINATION
3 BY MR. LLOYD:
4 Q. How are you, Agent Baker?
5 A. Good, sir.
6 Q. I'm Francis Lloyd. I represent Sister Megan.
7 A. Yes, sir.
8 Q. I just wanted to ask you about this one exhibit. Can you
9 see it there?
10 A. Yes, sir.
11 Q. And this is part of what you collected at the site?
12 A. Yes, sir.
13 Q. With respect to the second one there, "Every dollar that
14 is spent on armaments is a theft from the poor." That's
15 attributed to Dwight D. Eisenhower. Do you see that?
16 A. Yes, sir.
17 Q. He was general of the Army and the president of the
18 United States, correct?
19 A. Yes, sir.
20 Q. And then the next two are attributed to John Paul II; is
21 that right?
22 A. That's what's written there.
23 Q. You'll have to answer out loud.
24 A. I was going to say that's what's written there, sir.
25 Q. And he is the now-deceased head of the Roman Catholic
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1 Church, correct?
2 A. Yes, sir.
3 MR. LLOYD: That's all I have, Your Honor.
4 THE COURT: Thank you, Mr. Lloyd.
5 Mr. Boertje-Obed?
6 DEFENDANT BOERTJE-OBED: No questions.
7 THE COURT: Any redirect?
8 MR. THEODORE: No, Your Honor.
9 THE COURT: Thank you, sir.
10 Please call your next witness.
11 MR. THEODORE: Your Honor, may we approach?
12 THE COURT: Yes.
13 MR. THEODORE: Thank you.
14 (Sidebar conference as follows:)
15 MR. THEODORE: Your Honor, we rest. We'd like to
16 make sure everything that we think is admitted is, in fact,
17 admitted, double check on that, and we'd be prepared to rest.
18 THE COURT: You can do that at the end of the day.
19 I'll allow you to do it at the end of the day. You can rest
20 now with that reserved until the end of the day. Any
21 objection to that?
22 MR. IRWIN: No, Your Honor. As another matter of
23 housekeeping, we want to make a Rule 29 motion. How do you
24 want to handle that?
25 THE COURT: I'll take it under advisement until the
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1 end of the day. We can discuss that after the jury is gone as
2 well. I'll reserve ruling on that until the end of the day.
3 MR. IRWIN: I won't mention it in the presence of the
4 jury.
5 THE COURT: Then who is proceeding first for the
6 defense?
7 MR. IRWIN: Sister Rice.
8 THE COURT: You're prepared?
9 MR. LLOYD: Yes, Your Honor.
10 THE COURT: Great. So you can rest in front of the
11 jury.
12 (Sidebar conference concluded.)
13 THE COURT: Mr. Theodore?
14 MR. THEODORE: Yes, sir. Your Honor, at this time,
15 the United States rests.
16 THE COURT: Okay. Mr. Lloyd, I understand that
17 you're going first, so please call your first witness.
18 MR. LLOYD: Your Honor, I call Sister Megan Rice.
19 (Defendant Rice took the witness stand.)
20 THE CLERK: Do you solemnly swear or affirm --
21 DEFENDANT RICE: If that also includes the
22 Constitution of the United States, the truth.
23 THE COURT: She has to take the oath. Ma'am, I'm
24 sorry, can you hear me?
25 DEFENDANT RICE: Yes, sir.
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1 THE COURT: Did you hear the oath?
2 DEFENDANT RICE: I just wanted to ask if it includes
3 the Constitution of the United States, the truth, if you'll
4 accept that as the truth.
5 THE COURT: Well, the United States accepts it as a
6 binding document, but do you swear to tell the truth?
7 THE WITNESS: Yes.
8 THE COURT: Okay.
9 MEGAN RICE, DEFENDANT, SWORN
10 MR. IRWIN: Your Honor, before we start, I believe
11 there's a television screen on in the background that's kind
12 of white noising out. Am I correct, or am I just -- it's
13 making it difficult for me to hear. They're both on, giving
14 the white noise.
15 THE COURT: We can shut them off if that's easy. Why
16 don't you just shut them off.
17 MR. IRWIN: Thank you, Your Honor.
18 THE COURT: Did you shut them off or fix them?
19 MR. IRWIN: I just turned down the volume, Your
20 Honor.
21 THE COURT: Great, thank you. You may proceed. The
22 government agrees she's under oath now, correct? You agree
23 that was sufficient?
24 MR. THEODORE: I'm sorry, could you repeat the
25 question, Your Honor?
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1 THE COURT: That she's now sufficiently under oath?
2 MR. THEODORE: That's fine, Your Honor, yes.
3 THE COURT: You may proceed, Mr. Lloyd.
4 DIRECT EXAMINATION
5 BY MR. LLOYD:
6 Q. Sister, would you state for the jury and spell your
7 entire name, please?
8 A. My name is Megan Rice; M-e-g-a-n, Megan; Rice, R-i-c-e.
9 Q. And Sister, I've referred to you as Sister. Could you --
10 as your title. Could you explain to the jurors, please, how
11 you came to have that title?
12 A. I suppose it's to indicate a special relationship that we
13 try to have with all persons throughout the world. We're just
14 not available to be an individual -- I am a sister to
15 everyone.
16 Q. Are you also a member of a religious order, Sister?
17 A. Yes, I am.
18 Q. And could you explain a little bit about that? What is
19 that order?
20 A. It's an order of women who are dedicated originally to
21 education and especially the education of women, simply
22 because that was a need at the time in 1846, and that has
23 extended to anyone in need of education that we can respond
24 to.
25 Q. Is your order a Roman Catholic order?
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1 A. Yes, it is.
2 Q. Now, Sister, you're clearing your throat a little bit.
3 Do you need some water?
4 A. Not at this point.
5 THE COURT: There is water to your side if you need
6 it.
7 THE WITNESS: Thank you.
8 BY MR. LLOYD:
9 Q. Sister, let's back up a moment. Where were you born?
10 A. I was born in Manhattan.
11 Q. And there's always been mention of your age. When were
12 you born?
13 A. I was born in 1930, right in the depths of the
14 Depression. I'm a Depression baby.
15 Q. Could you tell the jury, please, a little bit about your
16 father and your mother?
17 A. My father is Frederick W. Rice, and he was at that time
18 professor of obstetrics at NYU, much older than my mother, and
19 he was practicing in Bellevue Hospital and teaching his
20 students to minister to the poor, the actual penniless and the
21 oppressed women, especially, in obstetrics.
22 My mother was Madeleine Newman Hooke Rice, and she was
23 only 21 when he was 45, and they were married. And so he
24 wanted to be sure that she would be able to take care of us if
25 he pre-deceased her, and he encouraged her to continue her
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1 education with her Master's and her Doctorate at Columbia
2 University in American History, focusing on the federalist
3 time and the abolitionists, those who were trying to affect
4 abolition of slavery well before 1863.
5 Q. Sister, you and I, of course, have talked to prepare for
6 our trial. And was there a time when you came to be concerned
7 about nuclear weapons?
8 A. Absolutely. It just happened -- I mean, I didn't know it
9 at the time that it was nuclear weapons. We happened to live
10 right next door to a professor in the Columbia physics
11 department who we were told -- this is as early, perhaps, as
12 1937 or '38, that he was doing something there that he could
13 not tell his wife what he was doing. And he also couldn't
14 tell his daughter, Marissa, and that was a very stunning
15 statement to us.
16 Q. And I believe you then encountered in your own family
17 someone else from whom you learned something about nuclear
18 weapons?
19 A. Well, that was quite a bit later, although it doesn't
20 seem long now. That was in 1945, actually. So I was then 15,
21 and my mother's youngest brother, who was ten years younger
22 than she, had volunteered as a private in the Marines, and
23 that was probably in about '42, or '41, even.
24 And gradually, because he was older than the others, he
25 was about 29 or 30, he was removed from the field in order to
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1 be trained as a -- they needed more officers. So he went to a
2 quick officers training in San Diego, I guess it was
3 Pendleton. Is that in San Diego?
4 And ready to go back to the Pacific. And by this time,
5 it was probably 1945 even, I think. Let's see now. 1945 is
6 the year that the bomb was dropped.
7 He found himself on Nagasaki six weeks after the bomb, a
8 young lieutenant. And his sergeant said, look, Walter, you
9 just get going. There's nothing for you to do. And, of
10 course, we can imagine that there was nothing to do six weeks
11 after the bomb in Nagasaki.
12 He was given a Jeep to ride around. So he rode around
13 and he found the cathedral that had been -- we still see the
14 remains of that cathedral. Many other things, of course. It
15 must have been staggering for him.
16 And then Bishop Paul Yamaguchi came back from doing civil
17 service in Japan, as all the noncombatant men were asked to do
18 some kind of service in the mainland. And Walter happened to
19 know that his daughter and his -- excuse me, his mother and
20 his sister had been at Mass on the 9th of August, 1945,
21 exactly at the time when the bomb was dropped.
22 And Walter drove Bishop Paul Yamaguchi to this cathedral
23 where his mother and his sister had been evaporated. And, of
24 course, that's just one example of the many experiences Walter
25 had during the next four months that he stayed in Nagasaki.
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1 Q. I take it he shared those experiences with you?
2 A. Gradually, over the years, yes.
3 Q. Now, Sister, would you describe your education, please?
4 A. I was educated in a great progressive elementary school,
5 parochial school called Corpus Christi, and we learned many
6 things about racism and prejudice and justice and
7 international relationships. And we were very well educated
8 there with the current problems of the day, which was getting
9 ready for war.
10 And then we went to a Catholic high school a little bit
11 up the road. That's where the sisters that I belong to
12 educated us. And I learned soon that they also were educating
13 women in Nigeria and then in Ghana since 1930. That excited
14 me very much, because I was very concerned about racism in
15 this country and slavery, of course, the heritage of slavery
16 on everyone.
17 And so I just aimed to do that right through high school,
18 you know. Maybe -- I didn't think I would be a good teacher
19 so I said, well, at least they'll certainly need teachers in
20 this part of Africa. You know, gradually, I learned how they
21 had specially sent for us to be educators of the women, and we
22 started with teacher training colleges.
23 By the time I got there, the elementary schools had been
24 turned into -- many secondary schools, many secondary schools.
25 So I was able to start a new second -- be in the start of a
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1 new secondary school in a very rural area called Abakaliki,
2 and that was a great joy to be there. I helped to build my
3 biology lab.
4 Oh, before that, I had -- they said you need certain
5 skills, because there are so many graduates in Nigeria, and
6 they're so wanting to be educated, and they really want to be
7 teachers, but they don't have many science and math teachers
8 so what will you do? I said, what can I do? Said, well, you
9 better do either biology, chemistry or physics. I knew I
10 wasn't good an at math. I love biology, so okay, do biology.
11 And I was sent to Boston College, and the professor, the
12 head of the biology department was just starting radio -- the
13 radioactive use of radioactive isotopes to trace the problems
14 in living cells. So my job was to figure out, especially in a
15 project that caused cancer, what was the trigger mechanism for
16 cell division. And so I was taught this process. I had to
17 learn how to do it because nobody else knew how to do it.
18 So I learned how to use radioactive tritium, which is
19 highly, highly poisonous, and it's also used in nuclear
20 weapons, by the way, but a very wonderful use for it to figure
21 out or help to figure out or lay the initial procedure for
22 what could cause cell division. What was it that was causing
23 cancer.
24 Q. Now, did you take a degree, Sister, at Boston College?
25 A. Yeah.
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1 Q. What was the degree?
2 A. A Master's in cellular biology, and it happened to use
3 autoradiography as -- it was radiation biology, really.
4 Q. You notice I was careful not to say Boston University.
5 A. Thank you.
6 THE COURT: I appreciate that as well.
7 MR. LLOYD: Thank you, Your Honor.
8 BY MR. LLOYD:
9 Q. In the course of that study at Boston College, did that
10 include any instruction concerning the dangers or risks
11 associated with these radioactive isotopes?
12 A. Absolutely. We were very carefully trained. We had to
13 wear lead -- and this is in addition to our black habits. It
14 was mostly in the summer for me because I was part-time
15 teaching in Melrose at the same time. So it would be
16 full-time in the summer, and maybe at night during the winter.
17 You had to wear lead thickened aprons, and you had to --
18 gloves, everything you were doing, and you were dealing with
19 slides, you know, and you were dipping slides into liquid
20 photographic emulsion in the total darkness without any light
21 because tritium emits gamma radiation, which is very, very
22 delicate, very, very powerful.
23 But anyway. So yeah. So we were very -- had to be very,
24 very cautious. Extremely cautious. We learned that at
25 Harvard Medical School at the time.
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1 Q. Sister, after your graduation from Boston College, how
2 long before you fulfilled your dream of traveling to Africa?
3 A. Almost immediately. I was told I was going in June of
4 1962, and I went in June of 1962. And I graduated -- I didn't
5 even graduate. I mean, they just wrote out the diploma. I
6 never went to the graduation.
7 Q. Skipped the ceremony and went to Africa?
8 A. Absolutely.
9 Q. And now, tell us, how long were you in Africa?
10 A. Well, I finally came back in the end of 2003. I left in
11 August of 1962, but I had two stints in this country in the
12 late '80s and in the late '90s, because my mother was
13 beginning to age, and my sister asked if I could be somewhere
14 on the east coast and have a little peek in at our mother, who
15 was a very active lady still and often going to the Nevada
16 test site with me in the spring when we learned about the fact
17 that nuclear bombs were still being detonated at the rate of
18 nearly once a month since probably the early '50s at the
19 beautiful Nevada desert, the sacred Nevada desert, which is
20 the size, on area, the size of the state of Rhode Island
21 within Nevada, where more than 1,000 nuclear bombs have been
22 detonated on this planet, in this country.
23 Q. Now, Sister, before we go into depth about Nevada, let me
24 ask you a couple more questions about Africa.
25 A. Thank you.
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1 Q. You said earlier, I believe, that you helped to build
2 schools there?
3 A. Oh, yes. As I say, when I got there in the -- in August
4 of '62, this Bush School, as we called it when it was out in
5 the country, had been started. It had one school block. And
6 then we were continuing to build the other classroom blocks.
7 And, in fact, we were sleeping in one of the unused classroom
8 blocks.
9 And I had the joy of being able to build my own biology
10 lab and design the chemistry lab. You know, I mean, it was
11 just you tell the carpenters what to do, and they did it
12 beautifully.
13 Q. Did you have any hands-on experience in that?
14 A. Surely. I mean, I was young. I was 32. So I was very
15 interested in -- everybody was interested in what they were
16 doing.
17 Q. What did you do to assist in the building?
18 A. Oh, I've had a chance to experience -- what did we call
19 it? Plastering, cement, because everything was just cement
20 blocks. But most of the time, we didn't plaster. Sometimes
21 we painted, but mostly we just left the bare cement blocks.
22 Q. And how many schools did you build before you left?
23 A. Many schools had been begun before I got there. So I
24 can't -- I was the only one that was in the growing stage
25 during the those six years when I was in Abakaliki, but other
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1 schools were going up. We had 50 elementary schools around
2 three different teacher training colleges. I mean, there was
3 a lot going on there. Nigeria was using its oil for people at
4 that time definitely. Not for profit.
5 Q. How many students do you believe you've taught?
6 A. I never counted.
7 Q. You've taught over decades, correct?
8 A. Oh, yes.
9 Q. Now, do your sisters still have schools there?
10 A. Oh, yes. We have over a hundred African sisters in our
11 West African province. More than that, I'd say. Maybe 120 or
12 130. I'm not up to date on the numbers.
13 Q. And --
14 A. And they're in Ghana, Nigeria and Chad as well.
15 Q. I'm not sure I remembered to ask you. What is the name
16 of your group or society of sisters?
17 A. We're the Sisters of the Holy Child Jesus.
18 Q. Now, you told us you came back to the States concerned
19 for your mother?
20 A. In 1986, I was doing a sabbatical in Israel. My sister
21 wrote, do you think you could be somewhere on the east coast.
22 She worked in Syracuse and was working as an occupational
23 therapist in the Veteran's Hospital and couldn't keep track of
24 my mother. You know, my mother was -- she was in her
25 eighties.
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1 Q. Was she still in Manhattan?
2 A. In the same apartment we grew up in, all by herself, but
3 she'd had many guests and long-term residents.
4 Q. Now, at some point, you said you went west?
5 A. Well, during the '80s, we learned that they were having
6 events at the Nevada test site, especially during Lent.
7 Q. When you say --
8 A. And Holy Week.
9 Q. When you say "we," let me interrupt you a minute.
10 A. I mean, it was available to the public. Anybody who
11 wanted to know. The Franciscan Order had found that it was
12 important to bring people out to the Nevada test site so they
13 would understand the beauty of the desert and what was
14 happening to the land there month after month after month,
15 first underground and then above -- first above ground, a
16 hundred weapons were detonated above ground, causing countless
17 cases of cancer and other heinous effects on the flocks of
18 sheep and all of that. Especially to the north, to the Utah
19 area, what you call the downwinders.
20 We learned all about that. We learned about the cost of
21 each detonation, which was at least $6 million apiece to do
22 this. It was Father Louie Vitale and other Franciscans and
23 others, many others, understood this and how important it was
24 we know about this.
25 Unfortunately, I find that most people just say, you mean
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1 to say that they were doing that out there? You know. You
2 felt that culture of silence, the culture of secrecy.
3 And there again, we were told in the '80s, that one of
4 the biggest problems was the pastoral work that had to be done
5 with the married couples who were living there, military or
6 engineering, whatever, when the husband or the wife could not
7 tell his or her spouse what he was doing for five years that
8 he worked there. And the children. And that was appalling,
9 and it was causing the breakup of many marriages. Very high
10 sociological peril was attached to the whole continuing test.
11 And from the very first test, we knew that that was the
12 Trinity bomb on the 16th of July, 1945, when the bomb was
13 exploded first. We didn't mention that in this trial. But
14 there was that first bomb, and it worked. Every one of the
15 scientists knew, and I've spoken to some of them and to their
16 daughter.
17 And they knew that this should never be done and didn't
18 have to be done and it couldn't be done and it shouldn't be
19 done.
20 Q. Sister, did you, based on your training in the sciences,
21 did you notice anything that struck you about the geographical
22 site itself there at Nevada?
23 A. I think it's almost hard to describe that. It's an
24 experience, and that's why this group that was inviting and
25 giving hospitality to people who were wanting to know call
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1 themselves the Nevada Desert Experience.
2 Part of that experience we learned from the first nation
3 people from whom this land had been illegally taken because it
4 broke a treaty that had been signed in, I believe it was 1863,
5 the Treaty of Ruby Valley. And unfortunately, the federal
6 government disregarded that and the Western Shoshone people
7 had their land taken from them for this purpose, which to them
8 was utterly obscene.
9 The beauty of the land and the mountains and the style of
10 the growth and animals that thrive there supported life in a
11 very harmonious, balanced way. But it gradually -- the
12 animals moved away, the insects moved away, and you never saw
13 any flies flying around in those '80s when we were there
14 during Holy Week in '87, '88, '89 and '90, we went to attend,
15 and other times to celebrate various events.
16 And we heard from the spiritual leader of the Western
17 Shoshone people, Mr. Corbin Harney, every time. Mr. Corbin
18 Harney was able to express the faith that these people who had
19 been inhabiting this land for tens of thousands of years, what
20 they had learned not only from the beauty that they saw, but
21 the actual vibration, the harmonious vibrations which
22 mountains and all things are constantly doing to give us
23 energy and life.
24 We all receive the waves from the vibrations of the
25 mountains and the crystals and the earth, and they saw the
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1 sky, the air, and the sun and the water and the fire as that
2 which was -- were elements for the creation of life; the life
3 of all of us.
4 Q. Sister, how long did you stay out in Nevada?
5 A. Usually, it was a week. Once we stayed two weeks. I did
6 go for a month in March when a group of -- maybe 5,000 people
7 were living there, camping on the -- around the site to try to
8 speak truth to power and do their constitutional rights of
9 entering that base, which was an illegal base, really, and
10 crossing into and surrendering peacefully, nonviolently to the
11 tune of 11, 12 hundred during that time.
12 I was volunteering, driving a van back and forth. They
13 really kidnapped the prisoners because they had no jails to
14 keep them. So they would take them up maybe 250 miles up the
15 road where there was one jail, but they wouldn't put them in
16 the jail. They just left them there by buses in fancy, you
17 know, really well -- you know, like luxury buses were hired by
18 the DOE, I guess it was. I'm not sure.
19 And so we would go up and collect them and bring them
20 back. And it was March, it was freezing cold, the way they
21 were left there.
22 So it was a very good experience and extremely vivid and
23 extremely clarifying about the reality of the military
24 industrial complex in this country.
25 Q. Sister, shall we come forward to July 2012?
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1 A. Certainly.
2 Q. Okay. That morning, it was early in the morning, wasn't
3 it?
4 A. Yeah. We started out about 2:30, yeah. I mean, we got
5 to Oak Ridge at 2:30.
6 Q. And you and your co-defendants had some items with you?
7 A. Yes.
8 Q. Okay. Would you go through with the jury what you were
9 carrying and let me ask you whether the items you carried had
10 any symbolic importance to you?
11 A. Yes. We had prayed together for many months and
12 reflected and tried to listen to the spirit and decide what we
13 really were wanting to do. And the first thing that we knew
14 was that we were filled with love and compassion for the
15 people who had to work at this very dangerous facility and
16 what was happening to them and to their families.
17 So we wanted to bring healing, things that were signs of
18 life and love and healing. My memory for just speaking, I
19 don't know if I can tell you. We wrote our statement that
20 describes each of the gifts that we were bringing, symbolic
21 gifts. Do you want me to read part of it or whole of it?
22 Q. Yes. Is that the statement that was taken at the site --
23 A. Yes.
24 Q. -- when you were arrested?
25 A. Yes. We were prepared to bring this message to all those
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1 who were condemned, in my view, to work in that facility; not
2 able to find other, more life-enhancing, satisfying jobs.
3 Q. And is that the statement that you read to Mr. Garland?
4 A. Yes, it was.
5 MR. LLOYD: Do you have any objection if she reads
6 her copy, or do you want the original?
7 MR. THEODORE: The copy of what?
8 MR. LLOYD: The statement that was taken.
9 MR. THEODORE: Do you want to admit it?
10 MR. LLOYD: Yeah.
11 MR. THEODORE: That's fine.
12 BY MR. LLOYD:
13 Q. Sister?
14 A. Yes.
15 Q. Is that the statement you have with you?
16 A. Yes, it is.
17 Q. Would you read it to the jury, please?
18 A. From the very beginning, or do you want --
19 Q. Yes, please.
20 A. "A statement for the Y-12 facility. Come let us go up to
21 the mountain of God, to the house where God lives, that God
22 may teach us God's ways, that we may walk in God's paths.
23 "For God will bring justice among the nations and bring
24 peace between many peoples. They will hammer their swords
25 into plowshares and their spears into pruning hooks. Nations
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1 will not lift swords against nations. No longer will they
2 learn to make war. Come, let us walk in the light of God.
3 Second chapter of Isaiah.
4 "Brothers and sisters, powers that be, we come to you
5 today as friends in love. We, like many of you, are people of
6 faith inspired by many who have gone before us, people like
7 the prophets Isaiah, Micah, Jesus, as well as Gandhi and the
8 countless who call us to be swords into plowshares. May we
9 now transform like weapons into real, life-giving alternatives
10 to build true peace.
11 "We come to Y-12 facility because our very humanity
12 rejects the designs of nuclearism, empire and war. Our faith
13 in love and nonviolence encourages us to be believe that our
14 activity here is necessary; that we come to invite
15 transformation, undo the past and present work of Y-12; disarm
16 and end any further efforts to increase the Y-12 capacity for
17 an economy and social structure based upon war-making and
18 empire-building.
19 "A loving and compassionate Creator invites us to take
20 the urgent and decisive steps to transform the United States
21 empire and this facility into life-giving alternatives which
22 resolve real problems of poverty and environmental degradation
23 for all.
24 We begin together by preparing our minds and hearts for
25 this transformation. And so we bring gifts to symbolize this
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1 transformation, instruments that serve life, peace, and
2 harmony, truth and healing to this nuclear weapons plant and
3 everywhere.
4 "We bring our life-symbols: Blood, for healing and
5 pouring out our lives in service and love. Our very humanity
6 depends on lives given, not taken. But blood also reminds us
7 of the horrific spilling of blood by nuclear weapons.
8 "Our hammers, to begin the transforming work of
9 deconstructing war machines, creating new jobs which address
10 real problems, eliminate poverty, heal and foster the fullness
11 of life for all.
12 "We bring our truth symbols: Candles, for light
13 transforms fear and secrecy into authentic security.
14 "Flowers, the white rose of forgiveness, acceptance of
15 friendship, and genuine reconciliation.
16 "The crime tape and an indictment, which point out truth
17 and end lies which have blinded and dulled the very conscience
18 of nations, and serve the interest of justice for healing
19 global relationships.
20 "A Bible, to remind ourselves to become sources of wisdom
21 and to inspire our acts of conscience as we carry on.
22 "Lastly, we bring food, symbolized by this bread,
23 strengthening us as we build this new world, where people do
24 not feel compelled to build nuclear weapons in order to feed
25 their families. So may we break and share this bread together
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1 in joy and genuine friendship as we work together, empowered
2 by our creating God. To transform now."
3 MR. LLOYD: Your Honor, I'd move that document be
4 admitted as Defense Exhibit 1.
5 THE COURT: Any objection?
6 MR. THEODORE: No objection, Your Honor.
7 MS. KIRBY: No objection.
8 THE COURT: It will be admitted.
9 MR. LLOYD: If I may approach, Your Honor, I can hand
10 it to the clerk.
11 THE COURT: You can get it afterwards.
12 MR. LLOYD: Thank you, Your Honor.
13 BY MR. LLOYD:
14 Q. Sister, that --
15 A. I brought something else.
16 Q. Yes. What else did you bring?
17 A. We were saying in this document that we needed to bring
18 truth, and truth is not only -- well, it's really always
19 joyful because it is reality, but it has sad and hurtful
20 consequences. And that is when we have to express when truth
21 is not observed.
22 So we had studied the war crimes and found that nuclear
23 weapons are definitely war crimes.
24 MS. KIRBY: Objection, Your Honor.
25 THE WITNESS: So we brought an indictment, which is
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1 our understanding of the laws infringed upon --
2 MR. LLOYD: Sister, there's an objection.
3 THE WITNESS: Thank you.
4 THE COURT: To the extent it goes to what she
5 brought, overruled.
6 MS. KIRBY: Your Honor, may we see what she brought?
7 We don't know what she's referring to.
8 THE COURT: Stay there, Sister. Thank you.
9 MS. KIRBY: Your Honor, may we approach?
10 THE COURT: You may.
11 (Sidebar conference as follows:)
12 MS. KIRBY: Your Honor, this is the document that
13 talks about Y-12 being indicted for war crimes, and it goes
14 into some of the defenses that the government believes were
15 precluded by the Court's order.
16 THE COURT: Right, but the defenses aren't going to
17 be admitted. But to the extent they brought the document,
18 right, I mean, if that's the same -- doesn't the government
19 have in its possession the items they brought?
20 MS. KIRBY: The front part. The part on the back is
21 something else.
22 THE COURT: Well, then, that can't be admitted. That
23 document cannot be admitted.
24 MR. LLOYD: I'm happy to substitute, as per our
25 earlier agreement, the original that they have in their
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1 custody.
2 THE COURT: That's fine. Are you going to have her
3 read it again?
4 MR. LLOYD: No, Your Honor.
5 MR. THEODORE: They're not going to get into opening
6 door.
7 THE COURT: Who is cross-examining?
8 MS. KIRBY: I am, Your Honor.
9 THE COURT: Miss Kirby, you can speak.
10 MS. KIRBY: We don't want the defendants to take the
11 admission of this --
12 THE COURT: The document is just evidence of what
13 they brought. She's not going to read it. If they want to
14 admit it, if it's a piece of paper that they brought, then
15 it's entitled to be admitted, it seems to me.
16 MS. KIRBY: But Your Honor, we would object to any
17 testimony she had with regard to the contents of it. It
18 sounded like she was going into --
19 THE COURT: Well, you can object when that happens
20 and I'll sustain the objection if she's getting into a defense
21 that -- it just wouldn't be relevant at this point. Okay.
22 MS. KIRBY: Thank you.
23 THE COURT: If it goes to her intent, that's
24 different.
25 MS. KIRBY: Thank you.
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1 MR. QUIGLEY: Judge, can I ask what's your plan on
2 time?
3 THE COURT: Probably 8:00. I'll probably break in a
4 few minutes, to be honest with you. I told them 5:45. I'll
5 probably stick as close as possible. Did you want to go
6 longer?
7 MR. QUIGLEY: No, just planning. I know we have
8 another thing after that.
9 THE COURT: Okay. Thank you.
10 (Sidebar conference concluded.)
11 THE COURT: Mr. Lloyd, that will be admitted as
12 Defendant's Exhibit 2. You can move on.
13 MR. LLOYD: Yes, Your Honor.
14 BY MR. LLOYD:
15 Q. Sister, earlier today, I believe there was an officer who
16 said he didn't --
17 THE COURT: We can handle that after.
18 MR. LLOYD: Yes, sir.
19 THE COURT: Go ahead.
20 BY MR. LLOYD:
21 Q. He didn't remember any books. Did you have books with
22 you?
23 A. Yes. We had several Bibles. I'm not sure how many. But
24 certainly one complete Bible and maybe four -- I'm not sure --
25 small New Testaments.
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1 Q. Now, why the slogan Transform Now Plowshares?
2 A. Well, it seems very, very possible that we just don't
3 want to stop something. We want to transform what is there.
4 And I, myself, have been educated by an engineer, a civil
5 engineer and also probably an electrical engineer working at
6 Columbia for more than 40 years, just died three or four years
7 ago, Dr. Seymour Melman, and I knew back in the '80s, I had
8 actually heard him in a four-hour teach-in at Riverside
9 Church, something like it was actually the 75th anniversary of
10 the Fellowship of Reconciliation.
11 Dr. Seymour Melman had initiated with many others,
12 international scientists and engineers and sociologists and
13 people of many disciplines to study and to see how an
14 experiment, scientifically, the whole military industrial base
15 of the United States had evolved over the century, certainly
16 the 20th century, creating this incredible economy based on
17 war and killing, and that it could be much more enhancing and
18 create far more jobs.
19 And they had detailed how every single military base in
20 this country and around the world, of which there are about
21 800, I think, could be easily -- I mean, take a lot of study
22 and work and create more jobs -- turned into that which is
23 really needed, wherever it is, so it would create a viable
24 economy and a self-sustaining need in every place.
25 And so I really knew that in the late -- in the '80s,
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1 having heard him in that concentrated course. And he's
2 written many books. Some of his books have been prevented
3 from being sold in this country, I learned from him himself.
4 He had to have his last books published in Canada because they
5 would be bought up so that nobody would read them in this
6 country, if possible.
7 Q. Was that your source for using the word "transform"?
8 A. Yes. Absolutely.
9 Q. Now, what about plowshares? That's a Biblical reference,
10 isn't it?
11 A. Yes, of course. Right. And I had also been observing
12 and my uncle had been telling me, letting me know, and my
13 mother in her letters, how Father Phil Berrigan and Daniel
14 Berrigan, back in the '80s, with many other peacemakers, had
15 conceived that we are called to do this in Isaiah and Micah in
16 that symbolically beating swords into plowshares, turning it
17 into agriculture and whatever is needed to enhance life. So I
18 was very familiar with all of that.
19 Even though I was in Africa, I would come back for a
20 visit, and I'd find people trying to say this, like, on Good
21 Friday at the U.N. where they would do the Way of the Cross
22 across 42nd Street to the Riverside Research Institute, which
23 is designing weapons for war and where the Intrepid is as a
24 model of a use of a whole big ship just for war and not for
25 all the people who need to be carried here and there, let
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1 alone recreation.
2 So that was totally in my mindset. And I would certainly
3 bring that back to Nigeria, because my students were prey to
4 the result of Biafran War, when their military were lured into
5 remaining in power for the next 30 years, and that brand new
6 country that only began in 1960 as an independent nation,
7 although it was very ancient land, and they had gotten
8 themselves ensconced under military power in the very
9 beginning.
10 Q. Let's come back to Oak Ridge, if we might, Sister.
11 July 28, you have with you the message you've read, Exhibit 1,
12 and Exhibit 2. You have the symbolic items you've mentioned.
13 When you went through the first fence, did you have an
14 expectation as to what might happen?
15 A. I was just hoping we would keep on going.
16 Q. Did you expect to encounter security personnel?
17 A. I was keeping my mind clear. I sort of had this
18 intuition that for 70 years, you can't keep up 24/7 hours of
19 observation. What do we say, 24/7 hours of observation. So I
20 thought very possible, you know, that people don't have that
21 energy to do this kind of thing. I really believed, anyway.
22 Thank you.
23 Q. In one of the clips that the government played of you
24 being interviewed, I thought you heard you say we were led.
25 A. Clearly, we were led. Certainly. I mean, physically,
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1 Greg was in front of us, but I didn't think Greg knew where he
2 was going. I mean, there was no path. I mean, we're
3 struggling -- all we were trying to do was get inch by inch
4 through that densely bushed wooded area. So clearly, we were
5 led, yes.
6 Q. Led by whom, Sister?
7 A. A spirit within us and around us. Spirit of God.
8 Q. Were you surprised to get to where you are?
9 A. We kept getting more and more -- I kept getting more and
10 more surprised that I was able to keep going right up to the
11 top and over. And my brothers were very compassionate of me,
12 pausing while I caught my breath every now and then.
13 Q. Did you have a plan for what to do upon encountering
14 security personnel?
15 A. Not really, no. We just knew what we wanted to do and
16 what we wanted to say to all of the employees that were there.
17 That was our aim. That was my aim, and I'm sure --
18 Q. Okay.
19 A. Just if possible.
20 Q. Well, now, we've looked at some film of you and your
21 co-defendants. I noticed that you were bowing when the first
22 officer arrived.
23 A. I've learned a lot from many faith traditions around the
24 world, and I'm deeply touched by the Buddhist message of
25 deeply revering whoever we need, whomever we need. And I try
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1 to learn from that and remember it, and every religious
2 tradition has deep reverence and awareness for the sacredness
3 of every person, place and thing.
4 Q. Did you -- on that evening, after you were there at the
5 HEUMF building, did you hear anyone mention peace protesters?
6 A. Oh, yes. That was our great consolation. As Mr.
7 Garland, we learned later, drove his vehicle up from the very
8 beginning, one could sense that he saw the scenario that we
9 had created, the message that we had created, the symbols and
10 the labeling of the building with truth. That was what our
11 intention was, to label the building with truth in a very
12 short time. We knew we would not have much time to do it.
13 And then I could hear very clearly "they are peace
14 protesters. You better send --" something like that. It was
15 about that pace. There was no panic.
16 When I heard later that he had spent so many years at
17 Rocky Flats, I knew some of the peace activists, especially
18 Peter Ediger, a Mennonite pastor with whom I had lived for
19 seven years in Las Vegas or six years before he just died last
20 year. And his -- the way he deals with people, he was a
21 sample. He was there at Rocky Flats for many, many years. He
22 would have been one of the protesters there.
23 So Mr. Garland would have seen that kind of behavior.
24 Q. Now, Sister, did you hear that evening -- I'm sorry, that
25 morning any reference to a shutdown at Y-12?
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1 A. That actually bowled me over. I couldn't believe it when
2 I heard this.
3 MS. KIRBY: Objection, Your Honor. Hearsay.
4 THE COURT: Overruled. I don't think it's offered
5 for the truth. Go ahead.
6 MR. LLOYD: Your Honor, she's answered the question.
7 THE COURT: How much more do you have, Mr. Lloyd?
8 MR. LLOYD: Not much, Your Honor. Maybe five
9 minutes.
10 THE COURT: We're going to stop after his direct,
11 ladies and gentlemen. So go ahead.
12 THE WITNESS: Should I finish the answer to that
13 question? It stunned me when I heard it, absolutely. I
14 couldn't believe that they were shutting down the whole place.
15 It was just beyond belief for me, and I almost got laughing as
16 I heard it. Every 20 minutes, this voice would come out, you
17 know, "this is a national security breach" or something like
18 that. And then, you know, letting everybody know, yes.
19 BY MR. LLOYD:
20 Q. Now, Sister, we've seen and heard a lot about blood on
21 the wall there and graffiti, and you've testified that you
22 used to build schoolhouses.
23 A. Yes.
24 Q. You were there. How much would it have taken to repair
25 what was put on that wall?
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1 A. For us in Nigeria, we would have used whitewash, and that
2 could have been done very nicely, very easily. Didn't even
3 have to be washed off. It could have just been painted over,
4 and it could have, as he said, been done in a very short time,
5 less than half a day, you know. Maybe the next day come back
6 for a second coat or something like that.
7 And the cement, I mean, that was just like this long. I
8 mean, it would have taken not even almost worth opening a bag
9 of cement to just put a little -- fill it in and plaster it.
10 It was just like something as though a bicycle or motorcycle
11 had gone by.
12 In fact, when I got there, I thought it was just an
13 ordinary thing that had been there from a car going by. They
14 had the vehicle pillars in front of it. Maybe they were put
15 there to keep people from not going too close as they turned
16 the tower. That was all that was going through my mind.
17 Q. You're talking about the section where --
18 A. Where it needed cement, yeah.
19 Q. Is that where it had been tapped with hammers?
20 A. The corner that we had used hammers to begin the work of
21 reconstruction. This needs to be probably deconstructed,
22 perhaps, but that's a positive thing, to reconstruct something
23 that's really meeting a need.
24 THE COURT: Mr. Lloyd, for the record, would you say
25 she indicated eight inches to a foot with her hands, about a
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1 foot?
2 MR. LLOYD: I think that's fair, Your Honor.
3 THE COURT: Thank you.
4 THE WITNESS: I could have repaired it, in other
5 words.
6 BY MR. LLOYD:
7 Q. It would have been similar to the work you did in Africa?
8 A. Sure.
9 MR. LLOYD: Your Honor, I'm just about finished, but
10 I would like to approach with other counsel to get some
11 guidance as to a series of questions I'd like to ask.
12 THE COURT: Can I let the jury go and we can discuss
13 it, and then --
14 MR. LLOYD: I could resume tomorrow.
15 THE COURT: Yes.
16 MR. LLOYD: Yes, Your Honor.
17 THE COURT: Okay. Ladies and gentlemen, I really
18 appreciate your attention today. Remember tonight, right, you
19 can answer the first question, which they should know by now.
20 But if not, you can answer the first question but not the
21 second. Have a very nice evening.
22 Oh, time tomorrow. The lawyers and I are going to have
23 to do a few things in the morning. Would you all object to
24 9:30 after a nice long day today, or would you prefer earlier?
25 We can start earlier. How about a vote. Who votes for 9:00?
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1 And who votes for 9:30? Okay. So we'll start at 9:00 a.m.,
2 and I will look forward to seeing you then. Thank you.
3 (The jury left the courtroom at 5:50 p.m.)
4 THE COURT: Counsel, the jury's out of the room. Why
5 don't we take a ten-minute break so the U.S. can cover with
6 Jason their exhibits, make sure they're all in. I have two
7 defense exhibits in.
8 We can reconvene at 6:00. We can handle any issues, the
9 issue that Mr. Lloyd, wherever he went -- where did he go?
10 Oh, right there -- wanted to bring up.
11 MR. LLOYD: I am standing.
12 THE COURT: I naturally looked there for you. We can
13 handle the Rule 29 and any other issues, and then we can
14 figure out a time in the morning that we should meet. Jury's
15 excited to get back. They wanted 9:00 versus 9:30. That
16 means earlier for everyone else. I'll look forward to seeing
17 you in ten minutes.
18 (Recess from 5:51 p.m. until 6:03 p.m.)
19 THE COURT: Mr. Theodore, you went through the
20 exhibits?
21 MR. THEODORE: We did, Your Honor.
22 THE COURT: And there's no issues?
23 MR. THEODORE: There's not. There's one we did not
24 actually present that was admitted, Government's Exhibit 28,
25 if we could still have the opportunity to provide that.
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1 THE COURT: Well, it was admitted. That's right, you
2 did not present it.
3 MR. THEODORE: That's correct, we did not publish it.
4 THE COURT: What's the defendants' position on that?
5 Any objection?
6 MR. LLOYD: No, Your Honor.
7 THE COURT: So yeah, that's fine.
8 MR. THEODORE: It may be tomorrow morning, if that's
9 okay.
10 THE COURT: That's fine.
11 MR. LLOYD: They're the two hammers, as I recall.
12 THE COURT: Yes, okay. So that's fine.
13 As to Juror 52, I observed him the entire afternoon after
14 it was alleged, I guess, that he may have been sleeping. What
15 I would note is he has droopy eyes. When he looks down, from
16 your all's view, at the monitor or to take notes, it may look
17 like he's sleeping, but I can see him from my angle, and he's
18 been attentive. He's paid attention. He's looked at the
19 witnesses at the appropriate time. He's taking notes, as I've
20 seen. He's reached for his pen a couple times and did not
21 appear to be sleeping at all. As I encouraged you to do, if
22 you see anyone sleeping or think they are, ask to approach,
23 because I definitely have a better vantage point from up high
24 than you all do below him. He's definitely very attentive in
25 this case at this point.
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1 Okay. As to the Rule 29 motion, Mr. Quigley, do you want
2 to go first? Are you going to argue on behalf of all
3 defendants?
4 MR. QUIGLEY: Probably.
5 THE COURT: Okay. Mr. Lloyd or Mr. Boertje-Obed, if
6 you want to add anything to his argument, you're welcome.
7 Otherwise, I'll assume, unless I hear otherwise, that you're
8 adopting his argument. Is that okay?
9 MR. LLOYD: That's okay, Your Honor, yes.
10 DEFENDANT BOERTJE-OBED: Yes.
11 MR. QUIGLEY: Your Honor, Bill Quigley for the
12 defendants. Two counts here. This is not about the damage to
13 property count. This is the sabotage count that we've filed a
14 Rule 29, motion for judgment of acquittal.
15 THE COURT: Just for the record, and I hate to do
16 this to you, but for the record, and I recognize you're not on
17 Count 2, can I just assume you are and deny it?
18 MR. QUIGLEY: Sure.
19 THE COURT: Is that okay with you? Viewing the
20 evidence in the light most favorable to the government --
21 MR. QUIGLEY: I think there is evidence that the jury
22 can consider, so yes.
23 THE COURT: But I still want you to make the motion,
24 and I'll deny it.
25 MR. QUIGLEY: I'll make the motion for Count 2.
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1 THE COURT: Viewing the evidence in the light most
2 favorable to the government, there is evidence from which the
3 jury could conclude that the elements have been met. Thank
4 you. Now you can go. I'm sorry to interrupt you.
5 One more housekeeping matter, and I apologize. As to
6 Count 2, as I'm calling it, it's Count 3 in the indictment,
7 correct? Count 2 was dismissed, but I'm going to call them
8 Count 1 and 2 because I don't let the indictment go back to
9 the jury. We'll all understand Count 2 is 3. There's no
10 reason for the jury to know that a count was dismissed.
11 MR. QUIGLEY: I'm culling it from the superseding
12 indictment, yes.
13 THE COURT: And we'll modify that in the verdict
14 form. Okay. Go ahead.
15 MR. QUIGLEY: So, Your Honor, Rule 29 provides a
16 motion for judgment of acquittal if -- the text of the
17 statute -- evidence is insufficient to sustain a conviction.
18 THE COURT: You agree I have to view the evidence in
19 the light most favorable to the government?
20 MR. QUIGLEY: That's correct.
21 THE COURT: Okay.
22 MR. QUIGLEY: Even doing that, there is insufficient
23 evidence to sustain a conviction under this statute. 18
24 U.S.C. 2155(a), as we've said for some time, has two elements.
25 The second element as to some damage to a national security
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1 premises, I think we have to concede that there has been,
2 under the most favorable standard, there has been some
3 evidence of damage to the national security premises.
4 THE COURT: Okay. So before you get to the intent
5 element, just so you know, I flipped the elements because it
6 makes sense to flip them. I agree the statute reads as you
7 say. So we can revisit that tomorrow morning in the charge
8 conference, if you want the elements flipped back. But you'll
9 see when you read it that I've flipped them. Go ahead.
10 MR. QUIGLEY: I'm hoping it's not going to be in the
11 charge conference. So the part that I am focusing on is the
12 intent, the specific intent. The statute says they cannot be
13 convicted unless they have specific intent to injure,
14 interfere with, or obstruct the national defense of the United
15 States. It does not say specific intent, but all parties
16 agree that that is a specific intent charge.
17 THE COURT: It is.
18 MR. QUIGLEY: And under Rule 29, when we raised it at
19 the break, the evidence -- you must decide on the evidence
20 that was before the Court at the time that the government
21 rests.
22 THE COURT: That's exactly right.
23 MR. QUIGLEY: I would argue on behalf of our
24 defendants that the government has never proven the link
25 between the disruption and the intent to injure the national
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1 defense of the United States, which is that link, that loop --
2 you called it at one time a loop between the action and the
3 national defense. I don't think it has been proven by the
4 government.
5 In fact, the proof is exactly the opposite, that the
6 security at Y-12 is actually significantly better today than
7 it was the day they showed up. And as a result, the national
8 security of the United States is better today than it was the
9 day they showed up.
10 THE COURT: Let me ask you this, because I agree with
11 your recitation of the evidence, that the security is better
12 today. It's uncontradicted at this point. And I know you're
13 getting to this, but I just want to be clear. With the intent
14 to injure, interfere or obstruct the national defense, right?
15 MR. QUIGLEY: Exactly.
16 THE COURT: The key is it doesn't matter if they
17 actually did.
18 MR. QUIGLEY: Absolutely.
19 THE COURT: Right? You agree with me on that?
20 MR. QUIGLEY: I agree with you on that.
21 THE COURT: All that matters is their intent. So if
22 they go in intending to steal the nuclear weapon, right, and
23 they get shot before they even get in to the PIDAS, they're
24 still guilty.
25 But if they go in and all they intend to do is sing
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1 songs, and they actually disrupt the national defense and the
2 whole country's national defense system gets shut down,
3 they're not guilty as this statute is written.
4 MR. QUIGLEY: That's right.
5 THE COURT: I just want to make sure you agree with
6 me on the way I'm reading it. Go ahead.
7 MR. QUIGLEY: The other part of it is, in terms of
8 having a specific intent, is that part of specific intent is
9 the foreseeable consequences of your action. It's not motive.
10 It is the foreseeable consequences of your action. The
11 consequences --
12 THE COURT: You sound like you're quoting from my
13 opinion.
14 MR. QUIGLEY: Hopefully, I am. That the consequences
15 of this action were not even foreseeable by the people who
16 worked there and have worked there 20, 30 years.
17 The testimony of Mr. Erhart was that, you know, they, the
18 Department of Energy, the national -- the other people there,
19 they thought that they had a good system. They didn't have --
20 their lights weren't working, the electrical wasn't working,
21 the communications weren't working, all these other.
22 It was unforeseeable even to them that somebody could get
23 in to interfere with the national security of the United
24 States. So if it is unforeseeable to the people who are there
25 and have been there for decades and had the ability to analyze
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1 the situation, how could it be foreseeable to, as the one
2 juror said who came up, how is it foreseeable that three
3 senior citizens are able to get through four fences and
4 cameras, motion detectors, canines, motor vehicles and all
5 that other stuff to be able to interfere with the security of
6 the United States?
7 They obviously took the action that they've already
8 admitted to. They took it in the way they admitted to doing
9 it with the banners and the symbols and the like.
10 But in terms of the intent to injure, interfere or
11 obstruct the national defense of the United States, I don't
12 think that the government has presented enough evidence at
13 all, even in the light most favorable to them, that has
14 presented enough evidence at all of specific intent on their
15 part to do that.
16 I agree with you, if they had the specific intent to
17 interfere with the national defense of the United States, it
18 wouldn't make any difference whether they did or they didn't.
19 But part of the thing of trying to figure out intent is
20 foreseeability. And if it's not foreseeable to the experts in
21 the field that actually what they did was illuminate the
22 security problems that were there, clearly, and in that sense,
23 as they say, ironically served as a wakeup call for them, if
24 it's ironic and it's a surprise to the government, then it
25 certainly couldn't have been, I don't think, in terms of a
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1 specific intent analysis, couldn't have been foreseeable that
2 Sister Megan, that Greg and Michael, dressed as they were,
3 with the things that they had, that they thought that they
4 were going to be able to get in there and interfere with the
5 national defense of the United States.
6 THE COURT: Okay. Thank you. Mr. Theodore, what's
7 your response, or Miss Kirby?
8 MR. LLOYD: Your Honor, may --
9 THE COURT: Do you want to add something? I'm sorry.
10 MR. LLOYD: Yes, Your Honor. Everything I have to
11 say is, of course, consistent with what Professor Quigley has
12 argued. I just made a few notes of testimony.
13 THE COURT: You're just adding to them and not
14 contesting anything?
15 MR. LLOYD: I'm not contesting. There were three
16 categories of evidence in the government's case-in-chief in
17 which there might be argued to be evidence of this required
18 intent.
19 First, there's the government's evidence of what the
20 defendants did, and that falls flat as evidence of the
21 specific intent required by the statute.
22 THE COURT: You agree that -- I mean, I'm not saying
23 they are, but their actions can definitely be evidence of
24 intent. I mean, there's no question it can be evidence. Your
25 actions -- if you take a gun and point it at me and shoot, we
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1 don't know what you were thinking, but it's certainly evidence
2 of your intent.
3 MR. LLOYD: I'm not arguing that at all, Your Honor.
4 I'm arguing that the evidence adduced by the government does
5 not show the specific intent required by the statute.
6 THE COURT: No, I understand that. But what you said
7 is the government's evidence of what the defendant -- I'm just
8 quoting, of what the defendants did is not evidence of intent.
9 MR. LLOYD: No, no. I'm sorry, Your Honor.
10 THE COURT: Okay.
11 MR. LLOYD: That's a flaw in my advocacy --
12 THE COURT: Or my hearing. Go ahead.
13 MR. LLOYD: I'm merely arguing that the government's
14 proof in this case of what they did does not show the specific
15 intent required by this statute.
16 In particular, I think the summary of that aspect of the
17 government's case is that film the government showed. You
18 have three people standing outside the HEUMF. Sister Megan is
19 bowing to the first pro force officer, while the -- while
20 bread is offered. Two co-defendants are lighting candles and
21 basically engaging in ritualist ic or symbolic conduct. It's
22 not evidence of an intent, as required by the statute, because
23 of its specific nature.
24 Second, Professor Quigley is, I think, backed up by --
25 when Professor Quigley argues that if the government was
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1 surprised, so were the defendants that there was a disruption
2 in operations, and I have here the evidence of the first
3 gentleman from NNSA, he stated, "I was very surprised they got
4 to where they got."
5 Sergeant Riggs said he saw vandalism which he had never
6 seen before at Y-12.
7 SPO or former SPO Garland testified, "I knew what I had"
8 and on cross-examination elaborated that he knew he had peace
9 protesters.
10 And that's all I have, Your Honor, to back up the
11 argument already made. I don't think there's evidence here,
12 whether it's based on conduct or whether it's based on the
13 views of the government's own witnesses, that shows that
14 specific intent.
15 THE COURT: Okay. Thank you. Mr. Boertje-Obed, is
16 there anything you want to add?
17 DEFENDANT BOERTJE-OBED: No. I concur with what they
18 said.
19 THE COURT: Thank you, sir. Mr. Theodore?
20 MR. THEODORE: Your Honor, with regards to whether or
21 not it was foreseeable to officials at Y-12 that somebody
22 could have gotten in there, that's completely irrelevant for
23 the defendant's intent.
24 THE COURT: I agree with that comment, but what Mr.
25 Quigley is saying is one of the ways to figure out intent is
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1 what are the foreseeable consequences of your actions. And
2 he's saying if it's -- so his might be broader, and I
3 understand you're probably going to argue the narrower. What
4 he's saying is if it wasn't foreseeable to them, then how
5 could it be foreseeable to my clients; in other words, that
6 someone could even get this far. In other words, they
7 never -- it was never foreseeable they could get this far.
8 MR. THEODORE: Well, again, I think intent can be
9 accomplished a couple different ways. If you're doing some
10 conduct and you're practically certain of a certain result,
11 okay, that could be intent. You could also have intent even
12 if you don't -- aren't practically certain. If you shoot at
13 somebody from 75 yards, you may not really think, because you
14 used the gun analogy, shooting, you shoot at somebody from 75
15 yards, a lot of people, their chances of hitting them are not
16 very good. That doesn't mean you're not intending to kill
17 that person, even though you do that.
18 So this is their intent, though. They were intending to
19 get in at every step of the way. And every time they got past
20 a certain barrier, they may have been a little surprised, but
21 they still had the intent to go as far as they could possibly
22 go.
23 THE COURT: Let's say they had that intent. They
24 must have the intent to injure, interfere with, or obstruct
25 the national defense.
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1 MR. THEODORE: Yes.
2 THE COURT: So just getting in doesn't necessarily
3 mean they had the intent to do one of those things. So what's
4 the evidence that they had the intent to injure, interfere
5 with, or obstruct the national defense? And Professor Quigley
6 is correct. You can't consider Sister Rice's testimony in
7 proving that.
8 MR. THEODORE: Right. But you can consider, first of
9 all, some other statements that they made as far as wanting
10 disarmament, stuff like that. That came in in the
11 government's case-in-chief. Their overall goal, purpose here
12 is disarmament, and that came out in our case.
13 But also, I think looking at the reasonable inferences
14 from the evidence, which this Court should do in a Rule 29
15 motion, I think it's very reasonable to infer that they
16 expected and contemplated and expected an institutional
17 reaction from Y-12.
18 THE COURT: And what evidence could I make that
19 inference from?
20 MR. THEODORE: I think it's just the high security
21 nature, just getting into a place like that, that a high
22 security place where you break in with all these warning
23 signs, no trespassing, lethal force beyond this point, that
24 there is going to be a major institutional response, perhaps
25 even lethal force, because you're going beyond the point of
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1 that.
2 So certainly, when it says deadly force beyond this
3 point, you can reasonably expect that there is going to be
4 that type of response from Y-12. Certainly, that's a very
5 significant institutional reaction to it.
6 So by continuing to go, despite all the warnings, they
7 could have reasonably expected that. I think that was
8 reasonably expected to disrupt or interfere with or obstruct
9 Y-12, the operations of Y-12, because they would be responding
10 in a very serious fashion.
11 THE COURT: Okay.
12 MR. THEODORE: Your Honor, if there are any
13 questions --
14 THE COURT: Is there any other evidence from which I
15 can conclude that, other than their reasonable expectations
16 from their actions? Does my question make sense?
17 MR. THEODORE: Yeah, and reasonable inferences from
18 the evidence, and --
19 THE COURT: No. And that's the point. You've given
20 me some evidence, which is -- I guess their actions is pretty
21 broad, right?
22 MR. THEODORE: Yes.
23 THE COURT: Are there specific actions from which a
24 reasonable jury could conclude, because that's the question,
25 that they had the intent to disrupt or interfere with the
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1 national defense? I'm using the disrupt or interfere with.
2 I'm kind of using the smaller language. It's actually intent
3 to injure, interfere or obstruct.
4 MR. THEODORE: Your Honor, certainly they would have
5 known by doing what they did that at some point, they're going
6 to be arrested, if not killed. They're going to, at the very
7 least, be arrested. That's a significant response from the
8 security forces there at Y-12. That, itself, would be a
9 disruption. They knew that whatever they did, whether it be
10 damage --
11 THE COURT: Any time anyone is aggressive, they
12 can -- any time, no matter for what reason, if they go in to
13 the premises and cut a fence, so they've met the other
14 element, just by their arrest, there's enough evidence from
15 which a jury could conclude they've committed a violation?
16 MR. THEODORE: I think you still have to look at it
17 as far as their overall goal. They picked Y-12 because it's a
18 nuclear weapons production facility, and they have an overall
19 goal of disarmament, and that's very clear that that's their
20 goal.
21 They know Y-12. And Y-12, a place which makes nuclear
22 weapons for the military, obviously for the defense, they know
23 they're interfering with that whole operation there by doing
24 that. And certainly, they could have contemplated a serious
25 reaction to their actions going in there, whether it's lethal
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1 force, arrest, whether it's repairing all the damage they've
2 committed through high security fences, cleaning up all the
3 damage that they inflicted on that place.
4 Certainly, they could have expected a serious, serious
5 institutional response.
6 And again, Your Honor, looking at the evidence in the
7 light most favorable to the government, I think those are
8 reasonable inferences from this.
9 THE COURT: Give me one second. Professor Quigley,
10 this case just came to my mind, and I guess how do you deal
11 with the Tenth Circuit's decision in Platte, which said -- and
12 this is on a sufficiency of the evidence, and they point out
13 it's not our place as judges to say what our view would be of
14 the evidence. I'm going to read you the paragraph in full.
15 "Certainly, the jury could properly infer that defendants
16 intended a disruption like the one they actually caused at the
17 missile site. At the very least, signs on the fence warning
18 that deadly force was authorized against intruders would have
19 alerted them that their entry would elicit a vigorous
20 response," and then they cite Wingfield, a Tenth Circuit case.
21 "Moreover, given the defendants' admitted purpose of
22 seeking publicity for their opposition to the missiles," which
23 came out in statements the defendants made, "the jury could
24 infer that defendant desire the publicity that would likely
25 attend a major disruption."
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1 I mean, what's different about that case? I mean, one
2 answer is you don't have to follow it, Judge, since it's not
3 the Sixth Circuit. Setting that aside, what's different about
4 that case?
5 MR. QUIGLEY: Well, I mean, as a factual matter,
6 those folks were on top of a missile silo when they were
7 arrested.
8 THE COURT: Right, but that's not what the Tenth -- I
9 agree that as a factual matter, that's where they were when
10 the law enforcement came screaming in. I think they even flew
11 helicopters in that one. But the paragraph, the evidence on
12 which they rely is just that by doing the action and being
13 warned with the trespass sign, et cetera, then their intent is
14 clear from the fact that they sought out publicity and other
15 things, that they wanted to cause a spectacle, that it is
16 reasonable to infer that their intent was to interfere with
17 the national defense because clearly, when -- what the Tenth
18 Circuit said, as I recall from reading it, and you can correct
19 me if I'm wrong because I haven't gone back and read it all
20 right here, is that by taking away these security officers and
21 others from whatever they do during normal time, which you and
22 I can agree may not have been a whole lot, that that is enough
23 from which a reasonable jury could conclude you interfered
24 with the national defense.
25 MR. QUIGLEY: But I think the consequence of that is
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1 the question you posed to the prosecutor. Anybody, then, who
2 cuts a fence and is arrested has committed sabotage, and I
3 don't think that stands the reasonableness of what our
4 criminal justice system is about. I mean, those words mean
5 something, and I don't have those words in front of me from
6 the Platte decision.
7 THE COURT: But sabotage is nowhere in this. I know
8 you all call it that. It's nowhere in this 2155, correct?
9 It's the title of the entire section, but it is not in -- what
10 2155 is titled is Destruction of National Defense Materials,
11 National Defense Premises Or National Defense Utilities.
12 That's all it's titled.
13 MR. QUIGLEY: Right. But the derivation of the
14 statute is from The Sabotage Act. That's why I call it
15 sabotage.
16 THE COURT: But this is not the sabotage count, per
17 se. You agree with that? Chapter 105 is sabotage, correct?
18 MR. QUIGLEY: Correct.
19 THE COURT: And then there's many different --
20 there's destruction of war material, war premises or war
21 utilities. I understand why you call it that. You obviously
22 agree that this isn't -- whether it be Platte or this case or
23 Kabat or any of the cases, it's not what you traditionally
24 think about when you think about sabotage.
25 MR. QUIGLEY: Absolutely. But also, again, if the
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1 Courts are in the position to say that anybody who commits any
2 act who wants to get press about disarmament is therefore
3 interfering with the national security of the United States of
4 America I think is far, far too broad, and that's exactly why
5 it should --
6 THE COURT: That's not what they said, and I agree
7 with your statement it's far too broad. If this act punishes
8 that, then I think it's far too broad. They said in the
9 context -- what the Tenth Circuit said is in the context of
10 breaking into a facility where you're warned that it is going
11 to cause a major disruption, that the jury can infer from that
12 that it actually would or that you would have the intent to do
13 so when the sign up front essentially says look, we're going
14 to shoot you.
15 MR. QUIGLEY: Number one, Your Honor, the sign that
16 has been presented to us says No Trespassing. It doesn't say
17 shooting, I don't think.
18 MR. IRWIN: Your Honor, may I approach co-counsel for
19 a moment? I brought the Platte decision up to him.
20 THE COURT: Yes.
21 (Mr. Irwin and Mr. Quigley conferred.)
22 MR. IRWIN: Thank you, Your Honor.
23 THE COURT: Go ahead.
24 MR. QUIGLEY: I stand to be corrected if I'm wrong.
25 THE COURT: Go ahead.
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1 MR. QUIGLEY: The other thing, Your Honor, in terms
2 of the history of this case and the arguments about selective
3 prosecution, the fact that they dropped the trespass charge in
4 order to set up the case up this way, which is their
5 prerogative, they're able to do that. I believe that Rule 29
6 gives this Court the authority and that even viewed in the
7 light most favorable to the prosecution, that there isn't
8 sufficient evidence to be able to convict these folks.
9 Now, the question about certainly they believe in
10 disarmament, that shows that they -- now people who believe in
11 disarmament don't necessarily -- disarmament is not against
12 the national defense of the United States. Henry Kissinger's
13 in favor of disarmament. So are half the presidents that
14 we've had.
15 The disruption that they talk about is, really, there was
16 a disruption from the arrest. I have to agree with that.
17 Clearly, it was foreseeable that they would be arrested.
18 Understanding that, the attempt to add on to that these weeks
19 of stand down and the like is disputed by their own records,
20 their own secretary, their own inspector general.
21 They had to stop for two weeks because they had to learn
22 how to develop a secure facility. They did training, they did
23 all this other stuff. That two weeks was not because of these
24 people forcing them to do it. It's when these people did
25 that, people realized, oh, my God, we have an incredible
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1 problem on our hand, and we have to do something about it.
2 So I don't think you can blame the two weeks on them. I
3 don't think the jury can either. I don't think that's a
4 reasonable inference from that in terms of this.
5 THE COURT: No, but that was my point earlier.
6 Whether they shut down for 20 seconds or two years is
7 irrelevant, right? What's relevant is if there's evidence of
8 their intent.
9 MR. QUIGLEY: Exactly, exactly.
10 THE COURT: All right. Here's what I'm going to do.
11 I'm going to take this under advisement. I want to look over
12 some things. I'll try, although I can't promise, to get you a
13 ruling by morning. But I will reserve ruling to the extent I
14 don't get you a ruling by morning.
15 MR. THEODORE: Your Honor, may I respond just briefly
16 to that?
17 THE COURT: You may, just briefly.
18 MR. THEODORE: Your Honor, we think that it is
19 very -- this is indistinguishable from Platte, really, when
20 you look at it. Certainly, just like in Platte, and I don't
21 have that case before me, but they certainly could have
22 expected a very vigorous response.
23 Even aside from the warning signs, just the nature of the
24 facility, which they were well aware of, that's why they
25 picked it. They know this is considered the Fort Knox of
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1 enriched uranium. They know that. They know when they go to
2 the high security fences, this is like no other place.
3 THE COURT: You're saying from that all, a jury could
4 infer their intent?
5 MR. THEODORE: Yes.
6 THE COURT: That their intent was to cause a
7 disruption?
8 MR. THEODORE: They knew it was practically certain.
9 They might have been a little surprised, but maybe not
10 entirely. They had all this material to do damage.
11 THE COURT: Does knowledge equate to intent, or are
12 you just saying it's evidence from which a jury could infer
13 intent?
14 MR. THEODORE: I mean, I think there's different
15 levels of knowledge, so certainly the latter what you said.
16 THE COURT: Okay.
17 MR. THEODORE: But they had all this material with
18 them. They expected to use that. I mean, they didn't use it
19 at the outside when they got there. They kept going. They
20 were hoping to be able to splash that blood on something,
21 certainly presumably not just an empty field and woods. They
22 expected to be able to pour that on something, to spray paint
23 something, to put banners up.
24 Your Honor, looking at it in light most favorable to the
25 government, we believe a rational fact finder could find all
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1 the elements and certainly could find intent here beyond a
2 reasonable doubt
3 THE COURT: Thank you. I will take that under
4 advisement.
5 The next issue I want to bring up is we have a draft.
6 Obviously, if I kick that count, I'll pull it. But you should
7 assume for now, discussion of the charge conference,
8 everything will be included. We can make a whole record. If
9 I kick the count, you don't waive those arguments, you just
10 lose them because the count's gone.
11 Mr. Lloyd, did you want to say something?
12 MR. LLOYD: I'm sure Your Honor's about to reread
13 Platte before making a decision.
14 THE COURT: I'm going to reread a few cases.
15 MR. LLOYD: There is a headnote --
16 THE COURT: Headnotes mean nothing. Give me the
17 number. Give me the number, the headnote number.
18 MR. IRWIN: May I assist him with my iPad, Your
19 Honor?
20 MR. LLOYD: 341.
21 THE COURT: There's no headnote 341.
22 MR. LLOYD: Oh, 34K.
23 THE COURT: No. Mr. Irwin, can you give me the
24 headnote number?
25 MR. IRWIN: May I approach, Your Honor?
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1 THE COURT: You can just tell me the number. There's
2 a number in parens. Here's what I wanted. Headnote number 1,
3 okay. And what are you --
4 MR. IRWIN: It's a factual distinction there with
5 Platte, Your Honor, regardless of intent. I believe it states
6 that they actually moved the signs. And again, I just pulled
7 this up right now, like yourself. And I just wanted to point
8 out that they were saying that the defendants removed sections
9 of a fence that had signs warning. So it seems like they were
10 actually moving things. I have to get further into the case,
11 but it seemed relevant.
12 THE COURT: Where do you see that they're moving
13 things?
14 MR. IRWIN: Again, premises or utilities, evidence
15 demonstrated that defendants moved sections of fences -- okay.
16 I was misreading it, I believe.
17 THE COURT: It's important you not just read the
18 headnotes. That's a summary. That's why I wanted the number
19 so I could read the actual text.
20 Okay. I'll take it under advisement. What time do you
21 want to meet for the jury conference in the morning? We're
22 starting at 9:00. You'll have the verdict form and the
23 charge. Most of them are pattern. What you'll want to look
24 at is the substantive counts to discuss if you have any
25 additions, subtractions or suggestions, but you can look at
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1 the entirety and see if I left out any pattern instructions.
2 Would you all like me to add -- one thing that's not in
3 there, because I wasn't aware of it, but you all were, is the
4 transcript charge I gave to the jury already. Would you like
5 it repeated in the closing instructions?
6 MR. LLOYD: Yes, Your Honor.
7 THE COURT: Okay. So your packet will not include
8 that, but the final packet will. I'm just going to give them
9 the Sixth Circuit pattern as I gave them before.
10 So we'll add that. What time would you all like to meet?
11 We're starting with the jury at 9:00. I'll give you as much
12 time as you want for a charge conference. I'm happy to meet
13 at 5:00 in the morning, 6:00 in the morning, 7:00 in the
14 morning, 8:00 in the morning, 8:30. You tell me how much time
15 you need, and I'll meet.
16 MR. LLOYD: I think 8:00 is sufficient, Your Honor.
17 THE COURT: We'll meet at 8:00 here in court
18 tomorrow. We have packets for you here so we'll hand them out
19 when we're done today, and you'll have them tonight so you can
20 go through them. I'll read the cases tonight, hopefully get
21 you a decision on that. If not, I'll continue to reserve if I
22 don't have a decision, and we'll go over the packet as it
23 stands. So you should prepare to go over the packet as it
24 stands one way or the other. I can't promise you a decision
25 by morning, okay? Anything else?
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1 MR. THEODORE: Your Honor, a couple of other matters.
2 Regarding that, I wanted to cite a case. I haven't seen the
3 package yet, obviously, but I know the defense did cite,
4 wanted a mistake of law type of instruction, but I want to
5 cite the Sixth Circuit case of United States v. Roth.
6 THE COURT: I read it. I'm familiar with it. I read
7 it.
8 MR. THEODORE: I'm very familiar. I tried the Roth
9 case.
10 THE COURT: I saw it was from here.
11 MR. THEODORE: And one thing, that case was an
12 extremely complicated case. It was an arms export control
13 case on whether or not certain physics equations, technical
14 data constituted defense articles under the United States
15 munitions list.
16 THE COURT: I understand, and they tried to argue the
17 Cheek argument, and the Sixth Circuit rejected it. I know the
18 case very well. I read it last week.
19 MR. THEODORE: Wanted to make the Court aware of that
20 particular case.
21 THE COURT: And if I remember correctly, they said it
22 was a Bryan case and not a Cheek case.
23 MR. THEODORE: That's right.
24 THE COURT: That one, I agree with you, I do not have
25 a mistake of law in the instructions because of the Roth case
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1 and the Bryan case, which is out of the United States Supreme
2 Court. I never would say I disagree with the Sixth Circuit
3 and I'm not saying I disagree with them in Roth. I will say,
4 like you just said, Roth is more technical than this case,
5 obviously.
6 MR. THEODORE: If there's ever a case in which Cheek
7 was to be expanded, that would be it.
8 THE COURT: I concur. That's a better way of saying
9 it.
10 MR. THEODORE: The other thing is we mentioned it to
11 the Court earlier, but we didn't have time to get it filed
12 today. We are filing objection to their proposed expert
13 witnesses they want to call, Mr. Sessions, and I think it's
14 Colonel Wright. Our objection is, for the most part, just a
15 slight modification of what we've already filed previously on
16 it. We will file that as soon as we get back to our office
17 when we conclude today.
18 But anyway, so that will be forthcoming
19 THE COURT: I'll look at it tonight.
20 MR. THEODORE: Thank you.
21 THE COURT: Do you want to add anything to that? I
22 mean, what is the specific basis of the objection just so I
23 know?
24 MR. THEODORE: Your Honor, the proposed -- first of
25 all, all we have on Colonel Wright, it goes to legal
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1 conclusions, and it goes to what the defendants could have
2 known and stuff. Certainly goes to mental elements like that,
3 completely irrelevant.
4 THE COURT: I mean, obviously, he can't testify to
5 legal conclusions or what the defendants would have known
6 unless he has personal knowledge for some reason.
7 MR. THEODORE: And also, without having personal
8 knowledge, I think talking about certain security things at
9 Y-12, that was just the summary we got before.
10 THE COURT: If he worked at Y-12 --
11 MR. THEODORE: No, she did not.
12 THE COURT: She, I'm sorry.
13 MR. THEODORE: She did not. There's nothing to
14 indicate she had --
15 THE COURT: Did she work at Y-12?
16 MR. QUIGLEY: No, Your Honor. She is career military
17 and then 20 years with the State Department, has been involved
18 with military and security all over the globe, and her
19 testimony is going to be about national security. She is
20 being offered as an expert in national security as follow-up
21 on this issue that the actions that the defendants took did
22 not, in fact, impact national security.
23 THE COURT: Again, why is that relevant? The two
24 elements are, assuming this charge exists, is the intent and
25 whether they injured any national defense material, premises
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1 or utilities.
2 MR. QUIGLEY: Here's the problem, Your Honor. They
3 have had -- they had a witness on this morning who was
4 testifying about the harm to the United States by this -- the
5 harm, the nuclear deterrence, the embarrassment and the lack
6 of confidence that this created. I have the exact words here.
7 They've already testified about that. And we deserve at least
8 the opportunity to be able to put on a person who would
9 testify that, in fact, what they have done did not harm,
10 embarrass, hurt or anything the national -- and since the jury
11 is --
12 THE COURT: If the intent, Mr. Theodore, if the
13 intent element exists -- in other words, if Count 1 survives,
14 why wouldn't they be able to, assuming they tied the loop -- I
15 could always strike the witness -- but introduce evidence that
16 their actions would not disrupt the national defense?
17 In other words, they clearly could have someone testify.
18 You can cross them, but they can have someone testify as to
19 that.
20 MR. THEODORE: I think they would have to have some
21 personal knowledge as to what was affected at Y-12 and how
22 operations were affected.
23 Let me just also add this is someone who has been
24 arrested, I believe, and convicted for nuclear protest
25 activity, if I not mistaken, back in our criminal history
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1 check on this witness.
2 THE COURT: You could impeach them with that. To
3 that limited extent, I would allow them, Professor Quigley.
4 If they are testifying that this type of action would not
5 disrupt the national defense and they have a background from
6 which they could conclude that -- we'll have to go through
7 their background first. So we'll have to go through their
8 background first, but if they have a background from which
9 they could conclude that, and it may be more generic. It
10 could be particular to Y-12.
11 MR. THEODORE: It still seems like it absolutely
12 would be pure speculation for the most part.
13 THE COURT: Not if they have a background in national
14 defense.
15 MR. THEODORE: Not unless they have intricate
16 knowledge of what Y-12 does and their operations and
17 everything else. I don't think there's any indication that
18 the person has worked with nuclear weapons necessarily.
19 THE COURT: We can hear that. I don't know much
20 about the person. Let me ask you this, then why does your
21 argument fly that it was reasonably foreseeable for them to
22 think that when they did this, it would disrupt the national
23 defense?
24 Because clearly, someone has -- no offense to the
25 defendants, but, I mean, if they bring someone that's truly
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1 knowledgeable, they would have more information from which
2 they could say yes or no, these actions would disrupt.
3 MR. THEODORE: Well, I guess the defense is coming
4 down to what they're intending to do, what their intent is.
5 THE COURT: That is, as I hear it right now, the
6 defense to Count 1 at least that they're mounting. I don't
7 think they're contesting, or at least they haven't yet -- they
8 may -- that they damaged. As Professor Quigley said, he
9 doesn't, at least for the purposes of the Rule 29, and he may,
10 and I'm not tying his hands, but he's not contesting right now
11 that they damaged national defense premises. It is coming
12 down to the intent.
13 MR. THEODORE: What I would ask, since they proffered
14 this witness before and they submitted a statement and
15 summary, and I don't have that in front of me --
16 THE COURT: I'll look at it. I'll read that as well.
17 MR. THEODORE: Your Honor, also, the other witness,
18 Mr. Sessions, was going to talk about symbolism with respect
19 to the damage that they left behind, and I don't think he's
20 ever testified as an expert. But the symbolism of what they
21 did at Y-12 and how this relates to other civil disobedience
22 cases to somehow make a comparison, that's my understanding of
23 what he would be testifying about, which to me is not a proper
24 area for expert testimony.
25 MR. IRWIN: Sort of correct, Your Honor. He has
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1 specialized knowledge. We have a lot of materials we've
2 presented to the trier of fact as to civil disobedience, the
3 blood and everything. He has specialized knowledge and
4 training, I think that would be 702, that would enable him to
5 help the jury in weighing the evidence.
6 THE COURT: How? I'm sorry. I'm not following that.
7 MR. IRWIN: Just to understand the evidence, he could
8 talk about the history and plus the physical aspects of what
9 they did in comparing it to other forms of nonviolent civil
10 disobedience throughout history.
11 THE COURT: Why is that relevant? There's two
12 elements, right? You're still talking about 2155?
13 MR. IRWIN: Right.
14 THE COURT: Under 2155, the question is destroy or
15 damage the national defense premises, which I think is
16 undisputed, at least at this point.
17 MR. IRWIN: Intent is part of that.
18 THE COURT: I'm getting to that. And their intent.
19 I mean, history of civil disobedience --
20 MR. IRWIN: We're arguing that these are nonviolent
21 protesters. There's nonviolence involved in civil
22 disobedience.
23 THE COURT: That could still disrupt, right? You
24 can't tell me that Martin Luther King or Gandhi didn't disrupt
25 things when they were nonviolent. They're extremely admirable
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1 people that did, in my opinion, great things but still
2 disrupted. I mean, that was their goal, right?
3 MR. IRWIN: Create attention, I believe, is what
4 Martin Luther King was talking about, and some would say
5 justice as well.
6 THE COURT: Well, I'm sure they were after justice.
7 It's clear to me Gandhi's goal was to interrupt the British
8 Empire. You and I can disagree, but I think I have a little
9 bit, probably, more knowledge about that one.
10 MR. IRWIN: I'm hesitant to argue with you on that,
11 Your Honor.
12 THE COURT: So I'll look at the motion, and we can
13 talk about it in the morning as well.
14 MR. IRWIN: Thank you, Your Honor.
15 THE COURT: Okay. Thank you. All right. Anything
16 else?
17 MR. THEODORE: What form -- as far as I ask the Court
18 to take judicial notice of the fact that Y-12 is a nuclear
19 weapons production facility, and the defense indicate no
20 opposition, is that going to be part of the jury instructions
21 or how is that going to be --
22 THE COURT: I'm hesitant to put anything like that in
23 the jury instructions because it's a piece of evidence, and
24 jury instructions don't contain evidence. I'm happy to read
25 at the end -- I think there's facts both sides want me to take
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1 judicial notice of, I assume including that Oak Ridge,
2 Tennessee, is in the Eastern District of Tennessee; that the
3 facility itself is a nuclear weapons facility.
4 If you want to type that part -- and they provided the
5 facts. And then if you indicate to me at the end of your case
6 which ones you want me to read to the jury, you remember -- I
7 think, Mr. Lloyd, you provided the list, correct?
8 MR. LLOYD: I do have it, Your Honor.
9 THE COURT: And at the end of the defense case and
10 the rebuttal, before I do my charge, I can read the facts, but
11 they will not go back with the jury. Is everyone comfortable
12 with that? I'll put the onus on both of you to remind me to
13 do it, since it's you wanting me to do it. Is that fair?
14 MR. THEODORE: That's fine.
15 MR. LLOYD: As you instructed me in an earlier
16 hearing, Your Honor, I kept track of the list of facts that I
17 wanted judicial notice taken of, and I believe they've all
18 come into evidence.
19 THE COURT: Okay. So you don't need any at this
20 point?
21 MR. LLOYD: No, Your Honor.
22 THE COURT: If you do, you have to tell me before the
23 charge of the jury, because I'm going to read them right
24 before the charge. That's the plan. And same for you. If
25 you don't, they don't get read.
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1 MR. THEODORE: That's fine.
2 THE COURT: Okay. Anything else?
3 MR. LLOYD: Yes, Your Honor. At the end of my direct
4 examination of Sister Megan Rice, I asked to approach --
5 THE COURT: You're right.
6 MR. LLOYD: -- for some instruction. And that is I'm
7 well familiar with Your Honor's ruling on the necessity
8 defense. I am inquiring whether I need to make a record with
9 Sister Megan of her statements of her beliefs that would
10 provide, arguably, a basis for the defense. And if I need to
11 do that, I need to do it without the presence of the jury.
12 THE COURT: What's the U.S. position on that?
13 MR. THEODORE: Can you repeat that again?
14 THE COURT: What would she testify to if she were to
15 testify?
16 MR. LLOYD: She would testify concerning her belief
17 that the nuclear weapons do pose a present, imminent and
18 impending threat of death or serious bodily injury.
19 THE COURT: Let me ask you this. Why didn't you put
20 that evidence on at the hearing when I ruled on it? In other
21 words, why isn't that waived at this point, since you had an
22 opportunity to present any witnesses you wanted at that
23 hearing, and I ruled based on the evidence in front of me.
24 Why isn't that waived?
25 MR. LLOYD: As I recall, Your Honor, that was -- the
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1 evidence proffered or offered at that hearing was the expert
2 evidence concerning --
3 THE COURT: I offered that you put any evidence you
4 wanted in support. I just don't understand why that's not
5 waived. But even if it wasn't waived, what I'll allow you to
6 do is to protect the record, if that's -- I would consider it
7 waived. If it's not waived, you can put a proffer. You can
8 file tonight a proffer of what she would testify to so your
9 record is protected. Is that fair, Mr. Theodore?
10 MR. THEODORE: That's fine, Your Honor. At this
11 point, we certainly object. Not object to that, but object to
12 what he's proposing.
13 THE COURT: Right. Well, like I said, I think it's
14 waived at this point. Even if it wasn't and they could
15 re-raise it at trial, you can put a summary so that she
16 doesn't have to get on the stand, and you don't have to go
17 through it, a summary of what she would say. Is that fair?
18 MR. LLOYD: Yes, Your Honor.
19 THE COURT: That way, you protect your record to the
20 extent it's not waived.
21 MR. LLOYD: Yes. Then with respect to other matters,
22 my direct examination of her is almost finished but not
23 complete.
24 THE COURT: I thought it was complete.
25 MR. LLOYD: No, Your Honor.
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1 THE COURT: All right. Anything else?
2 MR. LLOYD: No, Your Honor.
3 MR. IRWIN: No, Your Honor.
4 MR. THEODORE: No, Your Honor.
5 THE COURT: Okay. Have a nice evening.
6 (Proceedings adjourned at 6:53 p.m.)
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8 C E R T I F I C A T E
9 I, LISA REED WIESMAN RDR-CRR, certify that the foregoing is a correct transcript from the record of 10 proceedings in the above-entitled case.
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12 _\s\ Lisa Reed Wiesman June 21 , 2013 LISA REED WIESMAN, RDR-CRR Date of Certification 13 Official Court Reporter
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Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 309 of 315 PageID #: 1839 310
1 INDEX GOVERNMENT WITNESSES 2 STEVEN C. ERHART Direct Examination...... Page 40 3 Cross-examination by Mr. Quigley...... Page 89 Cross-examination by Mr. Lloyd...... Page 111 4 Redirect-examination...... Page 130
5 CHAD T. RIGGS Direct Examination...... Page 134 6 Cross-examination by Mr. Irwin...... Page 162 Cross-examination by Mr. Lloyd...... Page 170 7 Cross-examination by Defendant Boertje-Obed...... Page 177 Redirect-examination...... Page 178 8 KIRK E. GARLAND 9 Direct Examination...... Page 180 Cross-examination by Mr. Irwin...... Page 185 10 Cross-examination by Mr. Lloyd...... Page 189
11 RODNEY L. JOHNSON Direct Examination...... Page 196 12 Cross-examination by Mr. Irwin...... Page 208 Cross-examination by Mr. Lloyd...... Page 209 13 Cross-examination by Defendant Boertje-Obed...... Page 214 Redirect Examination...... Page 215 14 Recross-examination by Mr. Lloyd...... Page 216
15 SPECIAL AGENT RYAN BAKER Direct Examination...... Page 217 16 Cross-examination by Mr. Quigley...... Page 237 Cross-examination by Mr. Lloyd...... Page 239 17 - - -
18 DEFENSE WITNESSES
19 MEGAN RICE Direct Examination...... Page 243 20 - - - 21 GOVERNMENT EXHIBITS 22 Exhibit No. 1, photo, Y-12 aerial view 23 Identified...... Page 42 Admitted...... Page 42 24 Exhibit No. 2, Map of Y-12 25 Identified...... Page 61 Admitted...... Page 60
Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 310 of 315 PageID #: 1840 311
1 GOVERNMENT EXHIBITS (continued)
2 Exhibit No. 3, DVD - surveillance video Identified...... Page 140 3 Admitted...... Page 140
4 Exhibit No. 4, photo, Y-12 entrance sign Identified...... Page 43 5 Admitted...... Page 43
6 Exhibit No. 5, photo, "Woe to the Empire of Blood" Identified...... Page 148 7 Admitted...... Page 148
8 Exhibit No. 6, photo, "The Fruit of Justice is Peace" Identified...... Page 149 9 Admitted...... Page 148
10 Exhibit No. 7, photo, "Plowshares Please Isaiah" Identified...... Page 149 11 Admitted...... Page 148
12 Exhibit No. 8, photo, "Plowshares Please Isaiah" Identified...... Page 150 13 Admitted...... Page 148
14 Exhibit No. 9, photo, blood on the wall Identified...... Page 150 15 Admitted...... Page 148
16 Exhibit No. 10, photo, blood on the wall (with backpacks) Identified...... Page 151 17 Admitted...... Page 148
18 Exhibit No. 11, photo, baby bottle, blood Identified...... Page 151 19 Admitted...... Page 148
20 Exhibit No. 12, photo, "Disarm Transform" Identified...... Page 220 21 Admitted...... Page 148
22 Exhibit No. 13, photo, "Disarm Transform" Identified...... Page 221 23 Admitted...... Page 148
24 Exhibit No. 14, photo, "Peace Not War" Identified...... Page 221 25 Admitted...... Page 148
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1 GOVERNMENT EXHIBITS (continued)
2 Exhibit No. 15, photo, concrete barrier Identified...... Page 221 3 Admitted...... Page 148
4 Exhibit No. 16, photo, PIDAS fence Identified...... Page 151 5 Admitted...... Page 148
6 Exhibit No. 17, photo, PIDAS fence Identified...... Page 152 7 Admitted...... Page 148
8 Exhibit No. 20, photo, "Swords Into Plowshares" Identified...... Page 229 9 Admitted...... Page 229
10 Exhibit No. 21, photo, PIDAS fence Identified...... Page 154 11 Admitted...... Page 153
12 Exhibit No. 22, photo, bolt cutters Identified...... Page 155 13 Admitted...... Page 153
14 Exhibit No. 23, bolt cutters Identified...... Page 155 15 Admitted...... Page 153
16 Exhibit No. 23A, photo of Exhibit 23 Identified...... Page 156 17 Admitted...... Page 156
18 Exhibit No. 24, photo, yellow bolt cutters Identified...... Page 156 19 Admitted...... Page 153
20 Exhibit No. 25, yellow bolt cutters Identified...... Page 156 21 Admitted...... Page 153
22 Exhibit No. 25A, photo of Exhibit 25 Identified...... Page 157 23 Admitted...... Page 157
24 Exhibit No. 26, photo, two hammers Identified...... Page 157 25 Admitted...... Page 153
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1 GOVERNMENT EXHIBITS (continued)
2 Exhibit No. 27, large hammer with writing on handle Identified...... Page 158 3 Admitted...... Page 153
4 Exhibit No. 27A, photo of Exhibit 27 Identified...... Page 158 5 Admitted...... Page 158
6 Exhibit No. 28, photo, two hammers in evidence bag Identified...... Page 7 Admitted...... Page 153
8 Exhibit No. 29, photo, two hammers Identified...... Page 158 9 Admitted...... Page 153
10 Exhibit No. 30, photo, binoculars on fence Identified...... Page 159 11 Admitted...... Page 153
12 Exhibit No. 32, photo, PIDAS fence Identified...... Page 159 13 Admitted...... Page 153
14 Exhibit No. 33, photo, PIDAS fence Identified...... Page 159 15 Admitted...... Page 153
16 Exhibit No. 34, photo of various items on site Identified...... Page 160 17 Admitted...... Page 153
18 Exhibit No. 35, photo, spray paint cans Identified...... Page 160 19 Admitted...... Page 153
20 Exhibit No. 36, photo, spray paint cans Identified...... Page 160 21 Admitted...... Page 153
22 Exhibit No. 37, photo, "No Drones, No Nukes", flashlight Identified...... Page 160 23 Admitted...... Page 153
24 Exhibit No. 38-1, photo, t-shirt streamer Identified...... Page 225 25 Admitted...... Page 225
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1 GOVERNMENT EXHIBITS (continued)
2 Exhibit No. 38-2, photo, t-shirt streamers Identified...... Page 226 3 Admitted...... Page 225
4 Exhibit No. 39, photo, Defendant Walli Identified...... Page 148 5 Admitted...... Page 147
6 Exhibit No. 40, photo, Defendant Rice Identified...... Page 148 7 Admitted...... Page 147
8 Exhibit No. 41, photo, Defendant Boertje-Obed Identified...... Page 148 9 Admitted...... Page 147
10 Exhibit No. 42, photo, UN helmet Identified...... Page 227 11 Admitted...... Page 227
12 Exhibit No. 43, photo, Defendants Walli, Rice, Boertje-Obed Identified...... Page 227 13 Admitted...... Page 227
14 Exhibit No. 44, photo, hole in boundary fence Identified...... Page 223 15 Admitted...... Page 223
16 Exhibit No. 45, photo, hole in boundary fence/sign Identified...... Page 223 17 Admitted...... Page 223
18 Exhibit No. 46, No Trespassing sign Identified...... Page 72 19 Admitted...... Page 72
20 Exhibit No. 46A, Photo of Exhibit 46 Identified...... Page 89 21 Admitted...... Page 89
22 Exhibit No. 48, Two-sided banner with writing Identified...... Page 228 23 Admitted...... Page 228
24 Exhibit No. 48A, Photo of Exhibit 48 Identified...... Page 228 25 Admitted...... Page 228
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1 GOVERNMENT EXHIBITS (continued)
2 Exhibit No. 48B, Photo of Exhibit 48 Identified...... Page 229 3 Admitted...... Page 229
4 Exhibit No. 53, photo, DANGER tape Identified...... Page 160 5 Admitted...... Page 161
6 Exhibit No. 54, photo, six baby bottles Identified...... Page 225 7 Admitted...... Page 225
8 Exhibit No. 66, DVD, media interviews Identified...... Page 230 9 Admitted...... Page 230
10 Exhibit No. 67-1, Summary, labor costs Identified...... Page 203 11 Admitted...... Page 203
12 Exhibit No. 67-2, Summary, labor costs Identified...... Page 203 13 Admitted...... Page 203
14 Exhibit No. 68, Summary, costs/damages Identified...... Page 204 15 Admitted...... Page 204
16 Exhibit No. 69, Tractor Supply receipt Identified...... Page 201 17 Admitted...... Page 200
18 Exhibit No. 70, Sherwin Williams receipts Identified...... Page 201 19 Admitted...... Page 200
20 DEFENSE EXHIBITS
21 Exhibit No. 1, Statement for the Y-12 Facility Identified...... Page 258 22 Admitted...... Page 261
23 Exhibit No. 2, Oak Ridge Y-12 Indicted for War Crimes Identified...... Page 261 24 Admitted...... Page 264
25 - - -
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