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Transcript First Day of Trial 1 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 25 Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 1 of 315 PageID #: 1531 2 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. 15 16 17 18 19 20 21 22 23 24 25 Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 2 of 315 PageID #: 1532 3 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. Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 3 of 315 PageID #: 1533 4 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. Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 4 of 315 PageID #: 1534 5 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, Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 5 of 315 PageID #: 1535 6 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 Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 6 of 315 PageID #: 1536 7 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 Case 3:12-cr-00107 Document 192 Filed 06/21/13 Page 7 of 315 PageID #: 1537 8 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.
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