1 2 3 4 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, Plaintiff,

6 7

vs. LARRY DOUGLAS FRIESEN,

8 9 10 11 12 13 14 15 16 17 Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. CR-08-41-L

TRANSCRIPT OF JURY TRIAL VOLUME III HAD ON SEPTEMBER 19, 2008 BEFORE THE HONORABLE TIM LEONARD, U.S. DISTRICT JUDGE, PRESIDING

A P P E A R A N C E S 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Mr. Edward Kumiega, U.S. Attorney's Office, 210 West Park Avenue, Suite 400, Oklahoma City, OK 73102, appearing for the United States of America Mr. Mack Martin and Ms. Kendall Sykes, Martin Law Office, 125 Park Avenue, Fifth Floor, Oklahoma City, OK 73102, appearing on behalf of the defendant

421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 TIM HOLLAND Direct Examination ........................436 Redirect Examination ......................444 Recross-Examination by ....................445 HOWARD KONG Direct Examination ........................447 Cross-Examination .........................486 Redirect Examination ......................526 Recross-Examination by ....................538 THOMAS WINTER Direct Examination ........................423 Cross-Examination .........................428 WITNESS I N D E X PAGE

422 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 again? MR. KUMIEGA: Not -- I don't believe today, your Honor. MR. MARTIN: THE COURT: Ready, your Honor. Ladies and gentlemen of the jury, I'll Sometimes we (The following was had in open court on September 19th, 2008. For prior transcription, see Volumes I and II of this

transcript.) THE COURT: Number CR-2008-41-L, United States of Parties ready to

America versus Larry Douglas Friesen. proceed? MR. KUMIEGA:

United States of America is ready, your

just mention one thing, I forgot to mention this.

go a little longer than we anticipate without a break, and sometimes it's a little too long for some of you. So if you'll

let me know, raise your hand if you need a short break to use the restroom, or if you need to stand and stretch, we can stand at ease while we do that. after the break. We went a little long last night

Even though we go a little long we can still

take a short five-minute break sometimes. Ready to call your next witness? MR. KUMIEGA: THE COURT: Yes, your Honor. Your Honor --

Will you be using the chart? Excuse me?

MR. KUMIEGA: THE COURT:

Are you going to be using this chart

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. BY MR. KUMIEGA: Q. Mr. Winter, would you introduce yourself to the jury, Honor. THE COURT: defense table. MR. KUMIEGA: THE COURT: Yes, sir.

423

Take it down because it blocks my view of

Thank you. THOMAS WINTER,

called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION

please? A. Q. Thomas Winter from Ohio. Mr. Winter, can you pull the microphone closer to you,

please? And you live in Ohio; is that correct? Yes. And where, please? Stone Creek, Ohio. Where is that near, one of the big cities, please? Thirty miles south of Canton. Okay. And Canton is the middle of the state?

Yeah, basically. What do you do for a living, please? Independent truck driver. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. How long have you been doing that? Eighteen years. Now, you also collect something, is that correct, or

424

you're an aficionado of something; is that correct? A. Q. A. Yes. Can you tell the jury about that, please? Just firearms in general, started collecting machine

guns, I don't know, back in the early '80s. Q. A. And how many machine guns do you have in your collection? In my possession now I only own two machine guns, right

at the moment. Q. All right. Have you traded and bought and sold machine

guns since the '80s? A. Q. Yes. You brought a machine gun today to court with you; is

that correct? A. Q. A. Q. A. Q. A. Yes, sir. And what type of machine gun did you bring to court? It's a Mark II Sten. And how long have you had that machine gun? I bought that in December of '06. And what did you pay for it, please? It was a trade deal, money-wise probably around about

$2,500. Q. And you had companion paperwork when you purchased the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. firearm; is that correct? A. Yes, sir. MR. KUMIEGA: with the firearm? THE COURT: Yes.

425

Your Honor, may I approach the witness

(By Mr. Kumiega)

Sir, is this the case that you brought,

please? A. Q. Yes, sir. Can you look at it before I ask you a question, and see

if it's all intact? A. Q. A. Q. Okay. Is that the gun you brought? Yes, sir. And is that -- is that companion paperwork with that

firearm? A. Q. Yes, sir. And you drove that from Ohio to Oklahoma City for today's

presentation; is that correct? A. Yes, sir. MR. KUMIEGA: Your Honor, at this time the United

States would move for introduction of Government's Exhibit 6.0 into evidence, the machine gun. THE COURT: MR. KUMIEGA: MR. MARTIN: 6.0? Yes, your Honor. No objection.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE COURT: MR. KUMIEGA: Will be admitted.

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Your Honor, may I approach the witness

and pull the machine gun out? THE COURT: You may approach. Mr. Winter, you described that firearm

(By Mr. Kumiega)

as a Sten, a Mark II Sten; is that correct? A. Q. A. Q. A. Q. A. fire. Q. Okay. Let me ask you: Does that firearm have a serial Yes, sir. And it is a machine gun; is that right? Yes, sir. That means it fires how, please? Pardon? In your definition, what is a machine gun, please? I don't know. An automatic weapon, you know, select

number on it? A. Q. A. Q. A. Q. A. Q. Yes, sir. Can you show the jury where the serial number is, please? It's located right there (indicating) on the receiver. It's on the receiver? Yes, sir. And can you read that number into the record, please? E682. You said you also have paperwork when you bought that

machine gun; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir.

427

And can you tell us who manufactured that firearm from

the paperwork, please? A. Q. Yes, sir. It's made by Charles Erb. Do you remember when it was

Is there a date?

manufactured? A. No, actually there is not. The only date I have is the

date I purchased it. Q. A. Q. Erb? A. It's stamped on the gun and his name and address is on All right. What date is that, please?

That would be in December of '06. Okay. How do you know it was manufactured by Charles

the paperwork. Q. Okay. MR. KUMIEGA: Your Honor, may I take the firearm from

the witness and display it on the ELMO, or the DOAR system? THE COURT: MR. KUMIEGA: Yes. Your Honor, may the witness take the

receiver off, I mean the handle off so I can -THE COURT: Yes. Thank you.

MR. KUMIEGA:

Apparently, your Honor, this is not going to be able to focus because of the quality of the firearm. to the jury? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 May I publish it

Winter - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Mr. Winter, in front of you, in that notebook -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Q. up. Mr. Kumiega. (By Mr. Kumiega) Thank you, Mr. Bostic. THE COURT: MR. MARTIN: THE COURT: Any objection? MR. MARTIN: THE COURT: No, your Honor. May I see it first? I didn't hear. I just wanted to see it before he --

428

Let's have the court security officer come

Now, Mr. Winter, you said you had this

weapon for how long, please? A. Q. A. Q. Since '06. And you said this is an Erb machine gun; is that correct? Yes, sir. Was there any particular reason why you wanted an Erb

machine gun? A. No. I was just looking for something, I mean, he's got a

good reputation and stuff and I happened to find a decent deal, so I just purchased it. MR. KUMIEGA: witness, your Honor. THE COURT: MR. MARTIN: Mr. Martin. Thank you, your Honor. CROSS-EXAMINATION I have no other questions of this

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. MARTIN: THE COURT: If I might approach? You may approach. This notebook.

429

(By Mr. Martin)

I'm going to ask you to

look in that notebook, if you would, at Exhibit No. -- I got my book upside down -- 41, Tab 41. A. Q. Yes, sir. And you note in that tab there are two photographs of Do you see those two firearms, sir? Have you found that, sir?

firearms in there. A. Q. Yes, sir.

Reviewing those photographs, sir, and on the second

photograph without regard to the written material on there, do you recognize that firearm in those photographs? A. Q. A. Yes, sir. It's your firearm, sir? The first picture, yes. The second one I really can't

tell you but I assume it is. Q. A. Q. A. Q. Do you see the serial number on the second picture, sir? Yes, sir. Is that your serial number? Yes, it is. Okay. Now, at the time those pictures were taken, if

that is your firearm, you wouldn't have owned them in 2004, would you, sir? A. Q. No, I wouldn't. Okay. Now, sir, I believe you identified yourself as

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kind of a gun collector; is that right? A. Q. Yes, sir. Do you have any kind of special licenses, are you a

430

licensed dealer? A. No. I -- I shoot a lot of competition with military

firearms, and that's basically what I'm interested in. Q. A. Q. But you're not a licensed dealer to buy or sell? No, sir. Let me ask you, as I -- I'm going to bring back your

firearm and ask you if you can locate for me the manufacturer stamp on that firearm. A. Q. A. Q. Mr. Erb's, I presume? You said he was the manufacturer. Yes. Right here (indicating). I didn't say the serial number, the

Where is that, sir?

manufacturer stamp. A. Q. The E would probably be his stamp. Okay. Is there any other stamp on that besides the

serial number that would indicate that, who manufactured that firearm? A. No, sir, not to my knowledge. There's markings on the

kit that were -- whoever manufactured the parts, but there -like British Arsenal markings or something like that? Q. And you understand, maybe you don't, and so I'm not

trying to put words in your mouth, that the gun is actually the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. tube, right? A. Q. Yes, sir. Okay.

431

So on the tube it's your testimony that other than

the serial number, there's no marking as to who the manufacturer might be? A. Well, the E -- the E682 is the serial number, but the E

refers to Erb, is the way it was explained to me. Q. A. Q. A. Q. Other than that, sir. Yeah. That's my question.

I understand your question.

There's no other -No. Not to my knowledge, no. Now, sir, how many owners -- if you want to lay

Okay.

your firearm down, it's fine. How many owners have had that gun prior to you? As far as I knew, two Class 3 dealers. All right. And let me ask you, sir: Since you obtained

that gun in December of 2006, have you done anything to it, such as paint it, repair it, modify it or alter it in any way? A. Q. No, sir. Okay. It's in basically the condition that you received

it in? A. Q. A. Q. Yes, sir. All right. And do you have any other Erb firearms?

No, sir, not right at the time. Okay. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN:

432

Your Honor, I think it would be prudent

that we approach before I go into my next line of questioning. THE COURT: All right.

(The following was had at the bench, out of the hearing of the jury:) MR. MARTIN: He just testified that Erb has a good

reputation as a gun dealer, and I have hundreds of pages of documentation as to bad reputation of Erb. And I think I can

cross-examine him about, not all of them, but I guess cross-examine him about Erb's reputation for being a not-so-good gun manufacturer, and all the violations that he's committed in the past because of his testimony under examination. I wanted to give Mr. Kumiega an opportunity to

object outside the presence of the jury before I delved into that, your Honor. MR. KUMIEGA: Mr. Erb is going to testify. He would This

be perfect to explain away these minor violations. gentleman is just -THE COURT:

There's been no foundation laid how he So he just said as far So to me, unless there

knows the reputation or anything else. as he knows he's got a good reputation.

is some foundation laid that he's had lots of dealings with him or he knows his reputation throughout the gun community and all that, why, I think it would be improper to do it, based on what his answer is to the one question. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. MARTIN: THE COURT: Well --

433

If you want to lay some foundation for his

knowledge of Mr. Erb then we can discuss it. MR. MARTIN: THE COURT: MR. MARTIN: minor violations. THE COURT: would be -MR. MARTIN: THE COURT: Very well. Appear to be more proper cross-examination Whatever they are, I'm just saying that I'll try to do that. Otherwise -The reports I've been provided are not

of Mr. Erb, because you can delve a little bit into how he knows Mr. Erb's reputation, but based on the one question and his one general answer, that's not enough. MR. MARTIN: THE COURT: Very well. And you can go it into with Mr. Erb Didn't sound

without much reservation, if you want to do that. like he knows him personally. MR. MARTIN: he doesn't -THE COURT: Okay.

I'll inquire into that, your Honor.

If

(The following was had in open court:) (By Mr. Martin) Mr. Winter, I believe you said somebody

told you that that, quote, E on the serial number was the manufacturer mark or something? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Yes, sir. Who told you that, sir? Dealers that I've dealt with over the years. You don't have somebody's name, just dealers?

434

Well, Class 3 dealers, the gentleman that I bought this

one off of, Ronald Carmen. Q. Okay. As a matter of fact, his name is on one of those

exhibits you just looked at, Exhibit 41, right? A. Q. A. Q. A. Q. Yes, sir. Now, let me ask you: No, sir, I have not. You don't know Erb? No, sir. Okay. And you're not -- other than this firearm, have Have you ever met Erb?

you ever owned another Erb firearm, sir? A. Q. No, sir. Okay. And as far as his reputation, did somebody just

tell you that? A. Q. A. Q. A. Erb. Q. Mr. Carmen? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Meaning? You said he had a good reputation. Yes, sir. Yes. He's well-known in the Class 3 business.

Who told you that, sir? Well, everyone that has anything to do with it knows Mr.

Winter - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Q. A. Q. Mr. Carmen. Okay.

435

Now, sir, except for this reference to this trial

here, has the ATF ever come out and looked at that firearm? A. Q. Not since I've owned it. Okay. MR. MARTIN: (Brief pause) (By Mr. Martin) You've never talked to anyone at the ATF Very briefly, your Honor. No, sir.

about Mr. Erb, have you, sir? A. Q. No, sir. Okay. MR. MARTIN: THE COURT: Nothing further. Anything further? Pass the witness, your Honor.

MR. KUMIEGA: THE COURT:

Mr. Winter, you may be excused, and I

would advise you that you're not to discuss the testimony you've given here with other persons that may be a witness in this case. THE WITNESS: THE COURT: Okay. Thank you.

You may be excused.

Call your next witness. MR. KUMIEGA: Yes, your Honor. The United States

would like to call Tim Holland with the ATF.

Holland - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. A. Q. ATF? A. Q. A. Q. Since January of 2006. And where do you office, please? Oklahoma City field office. TIM HOLLAND, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION

436

Sir, could you introduce yourself to the jury, please? My name is Tim Holland. And what do you do for a living, please? I'm a special agent with ATF. And, sir, how long have you been a special agent with

And prior to working for ATF, do you have any other law

enforcement experience? A. Q. A. Yes, sir, I do. And can you tell the jury about that? Yes. I spent almost seven years with the Dallas Police

Department, spent six years with the U.S. Marshal, and four years with the Federal Air Marshals. Q. Okay. Now, you are here today to bring an exhibit to

court; is that correct? A. Q. Yes, sir. And -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I don't know what you want.

437

MR. KUMIEGA: see the firearm. THE COURT:

I wanted to know if the Court wanted to

Is this a different firearm? Yes, sir.

MR. KUMIEGA: THE COURT: then we'll -Q. (By Mr. Kumiega)

Show it to the witness to identify it,

Mr. Holland, you're here to introduce a

firearm to the jury; is that correct? A. Q. Yes, sir. And you were tasked to get the firearm from an

individual; is that correct? A. Q. Yes, sir. Can you tell the jury where you went to and who you got

it from, please? A. I got the firearm from Murray Beckford, and I went on I flew to Milwaukee, he lived about an hour

September 10th.

outside of Milwaukee in Cascade, got a rental car and went to his residence and retrieved the firearm. Q. In front of you, sir, is Government's Exhibit 1.6. It's

going to be the document, please. A. Q. Okay. Do you see 1.6 in front of you? MR. KUMIEGA: the document? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Your Honor, may I approach and show him

Holland - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE COURT: Yes.

438

(By Mr. Kumiega)

Agent, can you please take that out of

sleeve, please? A. Q. A. Okay. What is that, please? It's a -- looks like it's from our National Firearms

Branch, and this is showing that Murray Beckford got the -paid the tax stamp for this firearm. Q. A. Q. A. All right. Who did he get the gun from, please?

From John Walker, says "Birmingham Pistol Wholesale". All right. Does it say what date he received it? I don't know if that's the day Says May 14th

It's dated September 5th.

he approved it.

Let me look back here and see.

of '86 at the bottom. Q. A. Q. A. Q. A. Q. that? A. Looks like it says "RD 1", I don't know if it's Road 1 or Is that the manufacturer's license or Form 2? Yes, it is. And who manufactured the gun, please? It's Charles Erb. Okay. Junior. Charles Erb, Jr. Is there an address associated with

something else, it says "Fredricktown, Pennsylvania". Q. Okay. What I have here is Government's Exhibit No. 7

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. it? Q. (By Mr. Kumiega) proper. A. Q. Can you look at this, please?

439

Okay. Is that the gun you received from the other person that

you just mentioned that you went to, flew to Milwaukee? A. Yes, sir. MR. KUMIEGA: Your Honor, at this time the United

States would move introduction of that firearm into evidence. MR. MARTIN: THE COURT: No objection. Will be admitted. What's the number on

Agent, can you read to the jury and the

Court the serial number of that gun? THE COURT: No. The exhibit number.

MR. KUMIEGA: THE COURT: question, Agent. THE WITNESS: (By Mr. Kumiega) MR. KUMIEGA:

No. 7, your Honor. Go ahead. You can answer the

Seven.

The serial number is E, as in echo, 685. All right. Your Honor, may the United States

publish that gun to the jury? THE COURT: Do you want ro take the handle off? Yes.

MR. KUMIEGA: THE COURT:

Mr. Bostic.

Where is the serial number on it, Agent. THE WITNESS: It is located on the top right here

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. (indicating). right there. THE COURT: Okay. Mr. Bostic. It's located right on the top of the barrel

440

(By Mr. Kumiega)

Agent, what model firearm is that,

please? A. Q. It's a Sten Mark II. All right. Can you, I guess, if you can look at the

other book, look at Government's Exhibit 7.0.1, please. A. Q. that? A. Q. A. Yes. It appears to be a Sten Mark II submachine gun. Okay. And what is that, please? First of all, can you identify

Is there a serial number present on that? Well, I don't see a serial number. It's just a picture

of the gun, I can't -Q. A. Okay. -- tell if there is one on there or not. MR. KUMIEGA: (Brief pause) (By Mr. Kumiega) Sir, can you look at Government's The next page. Your Honor, if I can have just a moment.

Exhibit 7.0.2, please. A. Q. A. Q. Okay.

Did you see a serial number on that? Yes, sir. And is it the same as the machine gun that you just B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Q. A. Q. introduced? A. It appears that it's, has the same serial number.

441

The

first number isn't real clear, but it looks like it's 685, E685. MR. KUMIEGA: Your Honor, at this time the government

would move for introduction of Government's Exhibit No. 7.0.2 into evidence. MR. MARTIN: THE COURT: No objection. Will be admitted. That's it; is that correct?

(By Mr. Kumiega) Yes, sir.

Agent, if you look at that machine gun where the magazine

port is second to the firearm, does it appear to be welded or unwelded? A. down. MR. KUMIEGA: THE COURT: MR. MARTIN: THE COURT: No further questions. It's welded. It's a very good weld. It's been smoothed

You may cross-examine. May I retrieve the firearm, your Honor? Yes. CROSS-EXAMINATION

Officer, I'm going to hand you back Exhibit, I believe

it's Exhibit 7. A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. I know you've only been with the ATF a few years, but

442

you're pretty familiar with their regulations, would you agree, sir? A. Q. Yes, sir. Okay. You're familiar with their regulations that

requires a manufacturer when they manufacture a gun to put their stamp on the receiver? A. Q. A. Q. Yes, sir. Is there a manufacturer's stamp on that receiver, sir? I do not see one. Okay. Behind you there should be -If I might approach. Government's Exhibit No. 6, should be It's right here. Would you look at that

MR. MARTIN: (By Mr. Martin)

another Sten firearm.

one and tell me whether or not you see a manufacturer's stamp on the receiver of that one? A. Q. I do not. All right, sir. Now, I know you went and retrieved this Did you take any

firearm to testify in court today.

photographs of any firearm in relation to this investigation, sir? A. Q. A. Q. No, sir. Now -No. I thought I heard you start to say something. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I'm sorry. Did I interrupt you?

Holland - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. No, sir. That wasn't me. Mr. Kumiega had you look at Exhibit, I Do you

443

I apologize.

think it was 1.6 about the origin of this firearm. recall that, sir? A. Q. Yes, sir.

And you looked at a document that basically was dated May Do you recall that, sir?

14th, 1986. A. Q.

Yes, sir. Okay. I'm going to show you another document, sir, and

ask you -- hand you what has been previously introduced into evidence as Defendant's Exhibit No. 100, sir -A. Q. A. Q. A. Q. A. Q. that? A. Q. Yes, there is. As a matter of fact, they are identical to the firearms Okay. -- and ask you, is that also an ATF Form 2? Yes, sir. That's this right here, at the bottom it says Form 2? Yes, sir. It's dated April 20, 1986, right? Yes, sir. And there's a list of firearms, are there not, sir, on

that you just went over on May 14, 1986, are they not? A. Q. Yes, sir. I see E685 on there. I've highlighted it on my

Right there (indicating).

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. A. Q. Can you look at 1.6? Yes, sir. Is there a Form 2 in there? Yes, sir. Is there a difference between that Form 2 and the copy, right? A. Q. Yes, sir. Okay.

444

And have you ever seen either Government's Exhibit

1.6 or Defendant's Exhibit 100 before, sir? A. Q. No, sir. There is no disputing the fact that those are -- the two

dates of manufacture are approximately a little less than a month apart? A. Yes, sir. MR. MARTIN: THE COURT: Nothing further. Mr. Kumiega. REDIRECT EXAMINATION

certified copy in the defendant's exhibit? A. Q. A. Q. A. There is a difference in the date. Okay. And what about on the side of the numbers?

There is a difference. What's the difference? The defendant's exhibit has an X by every one of the And

firearms, the other Exhibit 6, I believe, or 1.6 does not. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. actually, the first serial number it says E676, looks like there's a little bitty 8 by that.

445

I don't even know if that's

a number or if someone scratched that with a pen and didn't mean to write a number, but looks like the number 8 to me. Q. Okay. MR. KUMIEGA: No further questions, your Honor. RECROSS-EXAMINATION

Both of those documents, Government's Exhibit 1.1, and

Defendant's Exhibit 100, are copies, wouldn't you agree, sir? A. Q. Yes, sir. And without the original document, no one can know when Would you agree with

any of those marks were put on there. that, sir? A. Q. Yes, sir.

The Xs or the little 8, the Xs on the defendant's

document, or the 8 on the government's document right? A. Q. Yes, sir. You made a statement like maybe somebody accidentally did

that, and you don't know that? A. Right. It looks like an 8 to me, but it's so small it's

hard to tell. Q. Other than those two things you pointed out and the

obvious date difference, they are identical pretty much; wouldn't you agree? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Holland - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, sir. 1.6 is not copied quite as good, so at the

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bottom it's hard to tell, looks like the paper was actually folded a little bit, but it looks like they were made from the same document, both copies. Q. So the government's copy is not quite as good as the

defendant's copy? A. Q. That is correct. As a matter of fact, you were talking about the

government's copy 1.6, the very first one I think you said it was E68 -- 676 and then there is the little thing there. that what you're calling an 8? A. Yeah, that's it. It's just blown up bigger on the On the defendant's Is

government's exhibit so it's easer to see.

Exhibit it's smaller so it doesn't look like an 8 so much there. Q. A. Same thing? Looks like the same mark. MR. MARTIN: MR. KUMIEGA: THE COURT: Yes, sir.

Nothing further. No further questions, your Honor. I

Agent Holland, you may be excused.

would advise you you're not to discuss the testimony you've given with other witnesses who may be a witness in this matter. THE WITNESS: THE COURT: Yes, sir.

You may be excused.

Call your next witness. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Sir, can you introduce yourself to the jury, please? Yes. My name is Howard Ho-Wah Kong. Last name is MR. KUMIEGA: to call Howard Kong. THE COURT: Who? Howard Kong. HOWARD KONG, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION

447

Your Honor, the United States would like

MR. KUMIEGA:

K-O-N-G, middle name H-O-W-A-H. Q. A. And Mr. Kong, how are you employed, please? I work for the Bureau of Alcohol, Tobacco, Firearms &

Explosive as a firearms and toolmark examiner. Q. A. And how long have you been doing that, please? I've been a firearms and toolmark examiner for about

seven years now, and I was an IBIS specialist for the previous five. And "IBIS" stands for Integrated Ballistics It is a digital imaging system.

Identification System. Q.

Now, could you tell us something about your educational

background, please? A. Yes. I have a bachelor of science degree in materials

engineering from the San Jose State University, and that's in San Jose, California. Materials engineering is the application

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of material science in engineering.

448 Material science is the

study of material behaviors and properties. Q. Now, you said that right now you're a -- what's your

specialty, please? A. Q. I'm a firearms and toolmark examiner. Okay. And you office out of a certain region here in the

United States; is that correct? A. Q. A. Yes. Western United States.

And where do you have your physical office, please? It's in Walnut Creek, California. It's outside of the

San Francisco bay area. Q. All right. Now, you're a firearms and toolmark examiner;

is that correct? A. Q. A. Yes. And have you ever worked in firearms identification? Yes. That is my principal duty is to do firearms What that means is I look at

examination and identification.

bullets, cartridge cases, toolmarks and determine if they are a match. Q. And what's the difference, if you can tell the jury,

between a firearms identification and toolmark identification, please. A. Yes. They are pretty much the same. A firearm is a type

of toolmark identification.

A firearm is just another tool.

It's going to leave marks on there that are reproduceable and B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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that have potential to be identified to the gun that made it. Q. Now, do you have any specialized training in the work

that you do for ATF, please? A. Yes. I completed the ATF National Firearms Examiner It's a yearlong course on firearms and toolmark It consists of classroom lectures, hands-on

Academy.

identification.

exercises, and we go out to manufacturers to look at their manufacturing processes. I've been to 14 firearms factories, And I see the way they use to make

and two tool manufacturers.

their parts including to apply serial numbers on their guns. Q. Let me ask you this: Do you teach any courses to other

law enforcement, I guess, scientists in your specialized area of work? A. Yes, I do. I'm an instructor with the ATF academy. I

teach serial number restorations. the U.S. and in Mexico. Q. A. bit. Okay. Serial --

I've done six classes across

I'm sorry.

I was going to describe the class a little

Basically we teach examiners how the serial number is

applied onto the gun, how they get obliterated and how we would restore to visualize the numbers that were on the gun. Q. And how long have you been doing that specialized area of

work, please? A. Q. About four years. Okay. Now, you were tasked as part of this investigation

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. firearm? THE COURT: Yes. to analyze a machine gun; is that correct? A. Q. Yes.

450

And what type of machine gun were you given to look at,

please? A. I was given a Sten Mark III carbine, machine carbine.

Same thing as machine gun. Q. All right. And do you remember the serial number, or the

number, identification numbers you were looking at pursuant to your investigation? A. Yes. The marks that I was looking at was, it was --

well, E683 was stamped on the body of the receiver, and those were the markings that I was looking at. Q. All right. MR. KUMIEGA: with the firearm? THE COURT: MR. KUMIEGA: Excuse me? May I approach the witness with the Your Honor, may I approach the witness

(By Mr. Kumiega) Yes.

Sir, can you identify that gun, please?

This was submitted to me as Exhibit 1 in this

investigation. Q. All right. And can you tell the jury what generalized

analysis you did before we get into specifics, please, on the firearm? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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I looked at the marks in front of the trigger mechanism

housing, and I was examining the toolmarks that were present there. And I also looked at the characteristics of the

firearm, and I identified it as a certain model. Q. All right. And what type of, I guess, tools or

instruments did you use to do your work today when you made the analysis, please? A. I used a stereo microscope to look at the marks. I also

made silicon casts of the marking so I could view it under another more high power microscope. Q. A. Q. Did you take any, I guess, photographs of your work? Yes, I did. And approximately how many photographs did you take,

please? A. Q. Approximately ten. All right. Can you look at -- there's going to be a book

in front of you, Government's Exhibit No. 9. A. This one? MR. KUMIEGA: THE COURT: Your Honor, may I approach? Yes. If you can flip to Government's Exhibit

(By Mr. Kumiega)

9, look at each picture carefully, and tell me if -- who made those pictures, please? A. These are pictures that I and a colleague of mine took

together. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. All right. They are in my notes package. All right. And the name of your colleague, please? She's a forensic chemist.

452

Sarah Walbridge.

Again, what's your official title? I'm a firearms and toolmark examiner. All right. Now, have you ever testified in court as an

expert witness? A. Q. A. Q. Yes, I have. All right. Five times. All right. Where did you examine the Sten Mark III gun, Approximately how many times, please?

please? A. Q. A. Q. A. Where did I examine it? Yes. Location or the location of the firearm? No. Yes. Where? What lab? Was there a laboratory?

ATF forensic laboratory in Walnut Creek,

California. Q. Let me ask you this: Does that laboratory have any

specialized certification? A. Yes. We are ASCLD certified. ASCLD is American Society

of Crime Lab Laboratory Directors. Q. All right. And what's the purpose of that certification,

please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

453

They provide a set of procedures and protocols that you

have to follow, and we -- and the purpose of that is for quality assurances. And we get inspected every so often and

we're one of the first laboratories to be certified by them and they come out every so often to recertify us. What that means

is that with the quality assurances in place, all the work that we do is peer reviewed by another qualified examiner, and technically -- I'm sorry, administratively reviewed by the supervisor. Q. A. Q. A. All right. Yes. That means what, please? That means they look at the notes that we take, and they You said it's peer reviewed; is that correct?

take a look at it to make sure the documentation supports the conclusions that we are drawing from our observations. Q. All right. You have a very interesting accent. Can you

tell the jury about that, please? A. I'm Chinese. I was born in Hong Kong, and I speak

Cantonese, and English is my second language. Q. A. When did you become an America citizen? That was right during my senior year in high school, and

that would be 1979. Q. Now, Government's Exhibit No. 9, you have identified as

your handiwork; is that correct? A. Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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454

States would move for introduction of Government's Exhibit No. 9 into evidence. MR. MARTIN: MR. KUMIEGA: MR. MARTIN: Nine and 10? Yes. Your Honor, I have two objections. One I Is that what you said?

have a prior motion in this case to suppress, and number two is remoteness. THE COURT: Is this Exhibit 9 and 10? No. Just No. 9.

MR. KUMIEGA: MR. MARTIN: THE COURT: MR. MARTIN:

Then as to 9 is my objection. Is what? The previous motion to suppress, and

remoteness, your Honor. THE COURT: Objection will be overruled. Now, Mr. Kong, you took approximately

(By Mr. Kumiega)

ten photographs; is that correct? A. Yes, approximately. I don't remember the exact number.

I can check my notes if that's relevant. Q. A. Q. We'll look at Exhibit No. 9. Okay. Let's look at the first photograph so we can give the What is that,

jury an overview of what we've got there. please? A.

That is the overall picture of Exhibit 1 that was B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submitted to me. Q. All right.

455

And that's the machine gun in front of you;

is that correct? A. Yes. I set it down in the floor, but this is the -- this

is it. Q. All right. And let's look at photograph No. 2, please.

What is that, please? A. That is some markings that I observed on the machine gun.

It's on the side of the machine gun housing. Q. A. Let's look at photograph No. 3. And what's that, please?

That is a close-up, or closer-up photo of the marks that

I was asked to take a look at. Q. A. All right. And let's look at the next photograph, No. 4.

That is another photograph of the same markings as the

previous one, but at a slightly higher-magnification. Q. A. one. Q. A. Photograph No. 6? It's the same markings, the only difference now is that And let's look at photograph No. 5. It's the same, it's slightly magnified since the last

this picture was taken under a microscope so that we could get a higher magnification. Q. A. And photograph No. 7? I made some observations of the toolmarks that are

present in this marking, so another higher magnification B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. photograph taken under the microscope. Q. A. And let's look at No. 8. Yes. Is that your handiwork?

456

This particular photograph shows some of the

markings that I was seeing when I'm looking at this mark under the microscope. Q. A. And let's look at photograph No. 9. It's the same as the last one except higher magnification

and showing a specific area. Q. Before we go into one more photograph, can you look at That's going to be on the next

Government's Exhibit No. 9.1.1. page. A. Q. A. Q. What is that, please?

Are you referring to this one? Yes, sir. This one? Yes. For observation purposes, for identification

purposes, did you take that picture? A. this. I'm not sure if this is -- I have a picture similar to I don't know if this is the same one or not. I thought

mine was in black and white. the picture. Q. All right. MR. KUMIEGA: actual exhibit? THE COURT: Yes.

But I recognize what is shown in

Your Honor, may I approach with the

(By Mr. Kumiega)

What I have here is Government's

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Exhibit No. 9.1 for identification purposes. that before? A. Q. A. Yes, I have. And what is it, please? There are three silicon casts that I made of the Have you seen

457

impressions on Exhibit 1. Q. A. And the impressions of what, please? Of the stamped serial number. MR. KUMIEGA: Your Honor, at this time the United

States would move into evidence Exhibit 9.1.1, and I think 9.1.2. I apologize, your Honor, it's 9.1 and 9.1.1. MR. MARTIN: THE COURT: Same objection. And what exhibit? 9.1 and what?

MR. KUMIEGA: (By Mr. Kumiega)

9.1, your Honor, and 9.1.1. This silicon impression, if you can How was that done, please?

hold that up to the jury, please. A.

It's a kit that I have, there are two parts to the kit, a

hardener and a gel that I mix together, and I have a certain number of minutes before it sets. What I do is I apply it on a Once it's set

surface that I want to replicate and let it set.

it picks up all the imperfections on a surface that it's sitting on. So when I peel it off I would have a replica of So

what was on that surface except a mirror image of it.

everything that's down on the surface is now up in the cast. Q. Let me ask you this: Before we go into your analysis,

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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are the techniques that you are using to analyze this purported serial number, are they commonly accepted in the field that you work in, in tool and firearm examination? A. It is accepted in the field that I am working and that

would be the field of firearms examination and identification. Q. And that area that you're going to testify to, is that

part of the area you've been teaching or have some published papers, please? A. Q. A. Q. Yes. This is techniques that I teach in my class.

All right. Or one of the many techniques that I teach in my class. All right. Mr. Kong, the first part of your examination

was to look for what, please? A. I was looking -- well, I was looking at the impressions

overall to see what observations I can make. Q. A. Q. Your overall observations; is that correct? Yes. Yes.

And first of all, what things are you looking for when

you got the machine gun, please? A. Well, I was looking for the -- the machine gun has a

coating on there, it's paint, and I'm looking at the paint to see whether it was interrupted or not, are there any toolmarks in that area, and what other marks there are pressing on this surface. Q. All right. So let's start with, I guess it's photograph

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. No. 1.

459

That's on -- it's going to be, excuse me, photograph

No. 6 on the top. MR. KUMIEGA: (By Mr. Kumiega) If we can bring that up, please. This is your first photograph in that

series, is that correct, or one of the first photographs? A. It's one of the photographs. It's the first one that was

taken under the microscope. Q. All right. And the issue is what are you looking for at

this point? A. Well, I'm looking at the structure of the, and the I notice that there

quality of the impressed numbers on there. are duplicate stampings of it.

If you look at the E on the That's visually in

left there is -- it was stamped many times. there. cetera. MR. KUMIEGA:

And if you look at the 6 it's at least twice, et

Your Honor, may I approach the witness

and give him a laser pointer? THE COURT: Yes. You said the E has multiple stamps; is

(By Mr. Kumiega)

that correct? A. Q. A. Q. A. Yes. Right there (indicating).

And can you point on the bigger screen also? Oh, okay. All right. (Complies) And how many -I'm sorry. I interrupted

You can see on the 6 also.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. Q. The E has multiple stamps. Can you tell how many

460

approximately? A. It's an incomplete stamp. It's difficult to tell. And

I'm not even sure that the stamp was an E.

It may have been

something else combined with something else to create something that looks like an E. Q. All right. Let's look at photograph No. 8 in the series,

please. correct? A. Q.

Now, you use the word on the bottom scribing; is that

Scribing. Scribing. Can you tell the jury what's the difference

between scribing and stamping, please? A. Scribing is you took some kind of tool, it could be

anything, it could be a pencil, it could be a pen, it could be a nail, it could be a punch, it could be anything, and you just try to write in whatever you want to write it. It's like

freehand, and you are dragging it on top of the surface. Q. All right. And that's just kind of like, what kind of

tool would do that? A. Any kind of tool that has a pointed end, like a pencil,

ballpoint pen, a nail that's got a sharp tip, or something not as sharp, like a punch. Q. A. And the difference between that and the stamp, please? Stamp is something that you put on the surface and you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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will hit it with something like a hammer to generate some type of force to compress the metal on the surface, and you would get a depression of whatever the tool is. If you have, like,

an E stamp, for instance, there would be the E surface of the stamp and that would be impressed into the surface. Q. Now, the next step that you did, if you look at the It's photograph No. 9. You get a clearer or

bottom of that.

close-up of some of the numbers; is that correct? A. That's correct. When I was looking at the numbers I

noticed that there was scribings adjacent to all, on top of or underneath the stampings. if we could. Q. A. Photograph No. 8. This might be a little hard, but I notice that right And if we go back to the last one,

along there there is -- there is a scribing of E, not just stamp, but it's a very thin line. And then right where the

arrow, the second arrow from the top on the right that's pointing to the beginning of a 6. Q. A. Can you use the pointer to show it? If you look at this arrow, it's pointing to the Let me do that again, right there. It's pointing

beginning.

to the beginning of the top of the 6 and it comes down like that and comes up like this. This arrow, the second arrow on And

the left-hand side, is pointing to the bottom of the 6.

that's the scribing that I was observing on this surface here. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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And then below that there is an 8 that was described on here. The top loop is right about there and the bottom loop about there. And below that there is a 3. And it's -- the top loop

is right about there, and the bottom is about there (indicating). And then I went ahead and I took a second photograph of higher magnification, that would be the next photo on the bottom of this page. And you can see that the 6 is a little It starts up here and comes down

bit more clear in this photo. and around right there.

And the 8 is like this (indicating).

I apologize, my hand is shaking a bit, but -- and the 3 is about there and has a bottom of the loop on the 3. Q. A. Q. If we look at photograph No. 7 -Before -- I'm sorry. Okay. Go ahead. Complete the thought,

What were you going to say?

please. A. Another observation that I made is that the scribing and

the stamping, the stamping goes over, right in there, over the scribing and you don't see the scribing in the groove of the stamping. Right there and right there. And if you look at the

8 you can see that there too. Q. A. Q. A. All right. But what that is -Go ahead.

And it happens with the E also.

What that is telling me is the scribing was done first B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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and then it was stamped because the stamping is obliterating the scribing where they intersect. Q. Did each of the numbers or each of the marks, E683, do

they have the same type of characteristics with apparently the scribing first and then with the stamp? A. The first three, yes. The last one did not overlap, so I

cannot say that. Q. Okay. If we look at photograph No. 7, you took a

magnification of 50; is that correct? A. Q. Yes. Now, this part of the -- of your analysis is you're

looking for a different analysis, is that correct, than the scribing and stamping; is that right? A. Q. Slightly different. All right. What are you looking -- what are you trying

to show the jury in this photograph, please? A. There are several things on this photograph. The first

is that if you look along the impression just on either side on the edge of the impression you can see the white and you can see horizontal lines in the white area, and that's really good here, and you can see that there too and there too. And what

that is is that's an area that does not have any more paint on it. And if you look in the inside impression, you see the dark

area, that's still paint, and the horizontal marks that you see there when I looked at the replica that I made with the silicon B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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cast I saw there were toolmarks there, and to -- and basically what that is telling me is that when the stamping was happening there was already a layer of paint on there. The stamp was

made, the edges kind of bulge up and contacted the stamp and the paint got rubbed off. In the process of rubbing off the I

paint there is also toolmarks that were left on their edges. have a schematic that I would like to show to help visualize what is happening there. Q. Wait a minute, please. Let me understand what you're

saying.

This is -- what -- this mark here or groove is made by

what instrument, please? A. It's some kind of die stamp. It's a stamp that has that

6 or something that's similar to a 6 in a mirror image. Q. Let me ask you this: This is a stamp. Do you see any

scribings on this photograph? A. I do. It's right along there (indicating). That's a

bottom of the 6. Q. A. Q. Okay. Right there. Okay. Now, let me ask you this: This is the groove of

the stamp; is that correct? A. Q. A. Q. Yes. And what is contained inside the groove, please? The black that you see, it's paint. Okay. It's still there.

So this here, groove of paint is paint; is that

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A. Q. Yes.

465

And the sides of the groove basically don't have paint on

them; is that correct? A. That's correct. And you see that as a light-colored

white because that's metal, and I also like to point out that there are little horizontal marks right along the white area in those toolmarks that were made by the stamp. Q. A. Where is that, please? It's all in the right area on the edge of the impression.

Right along there and right along there. Q. A. Q. All right. And it's also there (indicating). So it's, like, if I'm a cobbler and I'm going to do a

stamp or knock something in it, does that stamping process with the part of the stamp capture the paint? A. It could, but it didn't in this case. The actual -Does it capture or push in the paint, into Which area are you

referring to? Q.

Right here.

the groove? A. Q. A. Q. In this case it just pushed it in. All right. Yes. All right. And because of that, that leads you to a Just by stamping down; is that right?

conclusion about the paint on the receiver; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes.

466

It led to me concluding that the paint was there

before the stamping was made. Q. All right. Can you explain, again, why is there no paint

on the side here, please? A. Yes. And I have a schematic, a cross-section or diagram

that I would like to use to visualize what's going on there. Q. Hold on. We're not going to be able to do that, but if

you can explain to the jury why this occurs, please. A. Okay. What happens is, let's say we're looking at a

surface on the metal and you're taking a stamp and you're stamping into it. When that happens you're making an And when you do that, the metal is

impression in the metal.

made of crystalline grains, that's the structure of the metal. And what's happening is the stamp is compressing those grains smaller. Right along the edge -- the metal has to go So right along the edge it

somewhere, it doesn't all compress.

kind of bulges out a little bit, so you get something that's, you know, let's say you have a V stamp, you would see a V but at the edges it kind of bulges out a little bit above the surface. And when the stamp hits it, it can remove -- it can

leave marks on that bulge area, and it can remove the paint that's present if it's got any paint. So that's why in this

picture here, that's why we're seeing the white all along the edges. If you look at the deeper or the wider impressions, Some of less

that's where most of the paint is removed.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

467

shallower you don't have that big of a bulge, so you get less of that effect. Q. Now, you said you've been to different industry

manufacturers of firearms; is that correct? A. Q. Yes. And you've looked at serial numbers, I mean, that's part

of your expertise; is that correct? A. Q. Yes. Can you tell the jury typically how a serial number is

placed on a receiver or tube, please, for a machine gun? A. Yes. Sure. There is a mechanism that has the numbers on

a die, and it's typically called roll stamp, R-O-L-L, roll stamp. And the number would just be rolled over onto the That's one way to do

surface of the gun by hydraulic power. it.

Another way is by simple stamping where the serial number is on a stamp in a line and hydraulic power would just push down on it and it would just make an impression on the surface. That is the typical way to do that. that, but that's not relevant here. Q. A. Q. Okay. Yes. -- at what point is the serial number applied to the tube In the manufacturing process that you examined -There are other ways to do

or the receiver of the firearm? A. If you were to put a coating on top of the serial number, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

468

you would apply the serial number first and then you would put the coating on there. Q. All right. So the serial number goes on first, then a

coating after that? A. Q. that. Kong? A. Q. Yes. How is that different from a serial number that's placed Yes. Now, if we go back to photograph No. 6, the one above Is this the serial number that you're looking at, Mr.

on by a typical manufacturer? A. It's different because the number is -- some are higher

than others, they are not in a line, usually a manufacturer serial number would be pretty consistent and pretty even. A

manufacturer serial number typically is only stamped once, and usually the whole impression is visible. In this case, it's

stamped multiple times on each of the characters, and sometimes the stamping is not complete. Like on the 8, for instance, you What I'm

only see portions of the 8 in each of the stampings.

referring to is, like, down here on the bottom, you see, like, three or four curves in there, and when you come up, there is only, like, one or two lighter or shallower stampings of that portion of the 8. MR. KUMIEGA: MR. MARTIN: Your Honor, at this time -Your Honor, I don't have any objection to

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the introduction of Government's Exhibit No. 8. THE COURT: MR. KUMIEGA: THE COURT: MR. KUMIEGA: No. 8? Yes, your Honor. Will be admitted.

469

Okay.

Your Honor, may Agent Knopp approach the

witness and assist in showing him different machine guns, please? THE COURT: MR. KUMIEGA: Yes. If you can find Government's Exhibit No. Show 682, please.

6, I think that's 682, and 7 is 685. Q. (By Mr. Kumiega)

Do you see the serial number of that,

Mr. Kong? A. Yes. I see it. And, Agent, if you can show Mr. Kong

MR. KUMIEGA: 685, please.

If you can hand him what's marked Government's

Exhibit No. 8. Q. (By Mr. Kumiega) First of all, can you tell the jury

what that is, please, if you know? A. It's a metal tube that looks like it's got cutouts that

possibly can be turned into a receiver for one of the Sten machine guns. Q. And can you see if there's a serial number on there,

E705, please? A. Q. E705? Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. All right. Now, let me ask you this:

470

You looked at E682

and E685; is that correct? A. Q. Yes. And you obviously examined, you've done a presentation on

the suspect serial number, E683? A. Q. Yes. Can you, first of all, tell the jury is there consistency Excuse me. E682 and E685, the

between E682 and E683, please? bookend serial numbers. A.

The numbers were put on -- it's good quality serial You only see it once,

numbers, the way it's applied on there.

it made a good impression, a deep impression, and it's in a location that's a similar location. Q. All right. And the tube, Government's Exhibit No. 8,

E705, do you see that serial number? A. Q. A. Yeah. And how would you compare that to 682 and 685, please? It looks a little different simply because the other ones

are finished and this one is still in the processing stage. Q. All right. And is there a manufacturer's mark, is there

another number or alphanumerical number attached to E705, please? A. Q. 705? Yes. You see 705?

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. is. There is something above it.

471 I cannot make out what it There is a

It may or may not be a manufacturer marking.

-- there is a, what looks like a painted marking on here, but that may just simply be the steel tube, the manufacturer of the steel tube rather than the manufacturer of the receiver. Q. All right. Let me ask you this: The tube that you have,

the Government's Exhibit No. 8.

Is that typical of putting on

a serial number before it's painted? A. Serial numbers are put on at different stages. I don't

know -- I cannot answer that question because, like I said, it is put on in different stages depending on the manufacturer's preference, so whether some manufacturer would like to put it on sooner, some after it's finished. question for me to answer that. Q. All right. Let me ask you this: When you compare 682 So that's a difficult

and 685 to the machine gun you analyzed in your laboratory in California, E683, is there differences between those numbers? A. Q. Yes. All right. How would you categorize through your

experience E683? A. It's quite different from the two that I saw because of

the quality of the stampings, the way it's set up, meaning that some numbers are higher and lower. And like I pointed out, the

coating was put on prior to the stamping, and that's not typical of what manufacturers do. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

472

Now, then, you did your analysis first and you gave it to

one of the chemists, the machine gun to one of the chemists in your office; is that correct? A. Q. Yes. We'll get into that later. Is the mark E683, is that

inconsistent with the manufacturing process you have studied in your career? A. Q. A. Is it consistent? Or inconsistent. Yes, inconsistent. It's not what I expect a manufacturer

to do when they apply the serial number onto their product. Q. You said there were multiple stamps or scribings on E683;

is that correct? A. Q. Yes. And you say -- when you say "multiple", can you give the

jury your best reasoned analysis on how many is multiple, please? A. For the stamping, two, three. I saw -- each of the

characters was stamped at least twice, and some are three and some as many as four. count them all. I didn't actually go through and try to

Like I was saying, even the E that I was It could It

looking, I'm not even sure that it was an E stamp.

have been something else combined with something else.

could have been an F stamp combined with something that's straight. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge. THE COURT: Any other questions, Mr. Kumiega? minutes. MR. KUMIEGA: cross-examination. THE COURT: MR. MARTIN: We're going to break, Mr. Martin. MR. KUMIEGA: the case agent. THE COURT: (Brief pause) MR. KUMIEGA: Your Honor, may the United States Yes.

473

Your Honor, if I may have a moment with

publish Government's Exhibit No. 8, the tube, to the jury? THE COURT: While they are doing that, Mr. Kumiega,

because of the other matter we need to take up, I'm thinking about stopping for lunch, and I don't know if you're almost finished, or whether this is a good breaking point, or where are you? MR. KUMIEGA: Honor, I could. THE COURT: So you've still got more direct? A couple more minutes. If you want me to break here, your

MR. KUMIEGA: THE COURT:

We'll wait. I'll break then, your Honor.

MR. KUMIEGA: THE COURT:

We can wait if you've only got a couple of

The government offers Mr. Kong up for

I'll take more than a couple of minutes,

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. KUMIEGA: (By Mr. Kumiega) Just briefly then, your Honor.

474

Sir, have you reached a conclusion then

regarding the placement of E683 on that Sten Mark II machine gun, excuse me, Mark III machine gun, please? A. Q. A. Q. A. Exhibit 1? Yes. The one that was submitted to me? Yes. Yes. The markings is in a different location than the

two that you showed me earlier. Q. A. Q. Okay. The one that says E682 and the other one. And how would you describe your research or your work

experience, your analysis, how would you describe E683 that you examined? A. Q. A. You mean the quality of it? Yes. Oh, yes. It's something that a

It's very poor quality.

manufacturer wouldn't put out, and -- yeah. Q. All right. And your next conclusion is that regarding Can you tell the jury

the capture of the pushing of the paint. about that, please? A. Yes, my next -- yes.

I also concluded that the coating

or the paint that's on the receiver was there before the stamping of the E683 number. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. All right. Correct. And you examined a gun that you -- from the

475

The paint was on first, then it was stamped?

configuration, what type of Mark machine gun is that, please? A. Exhibit 1 is a Mark III. I have two guns in my

laboratory collection that are Mark IIs, and there are two major differences between them in the design. Q. A. Q. A. Have you seen those before? Yeah. All right. Which is the Mark II?

It's -- Mark II is like Exhibit 1, and that's the one on Wait. I didn't say that right. Okay. Let me do

-- wait.

that again. Q. A. Q. A. Q.

Mark II is the one on the right.

Your right, my left? My right. All right. -- coating. All right. And the one on the right is the Mark III. And that's what you examined; is that Yes. This one with the grayer painting --

correct? A. Q. A. Right. This type of gun? Yeah. The major difference is you can see on there the

magazine housing, the one on the left, it's just a housing. It's welded onto the receiver. THE COURT: Excuse me. You confused me on right and

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 left.

476

I don't know if he's talking about your right and left

or his right and left. Q. A. (By Mr. Kumiega) How about you pointing, Mr. Kong. If you look right

I'm going to point to the Mark III.

there (indicating) the magazine housing is welded onto the receiver. If you look at the Mark II, if you look at that

there is a sleeve that the magazine housing is attached to, and it's not attached directly onto the receiver. The reason for

that is that they wanted to allow the magazine to be rotated on the receiver. different too. That's why. There's a second thing that is

The barrel of the firearm is attached to the This is Exhibit 1. That's your Exhibit 1, our 3.16? This

receiver by a nut. Q. A.

That's 3.16, right? I'm sorry.

This is the firearm that I examined.

one is, the barrel is attached to the receiver by a number of fasteners or rivets. There are four in the front end, which The Mark II has a

are those four, and seven on the back end.

shorter nut that is a screw-on, and it just holds the barrel in place. And those are two major differences between a Mark II

and a Mark III. MR. KUMIEGA: THE COURT: Nothing further.

Ladies and gentlemen of the jury, we're And

going to take our noon recess and we'll reconvene at 1:15. again, I will gave you the same admonitions that I gave you prior to all of the other recesses that we've had, to not B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

477 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discuss the case or reach any conclusions. And you can leave

your notebooks in the seat and Ms. Youngberg will see that they are secure. All rise while the jury exits. (The jury exits the courtroom, after which the following was had in open court:) THE COURT: attention -You may be excused during the lunch hour, Mr. Kong. Mr. Martin, you brought to the Court's attention prior to trial this morning in chambers, I'm not sure whether you had an objection or exactly what your objection was, if you did so, to the testimony of, is it Sarah Walbridge, is that who it is, Mr. Martin? MR. MARTIN: THE COURT: MR. MARTIN: Yes, sir. And -Your Honor, in that regard, I may have my Mr. Martin, you brought to the Court's

date off, but sometime in June I received a one-page laboratory report, which is referred to as Bates No. FRI1853. And I think

I've got it actually in an earlier Bates number than that, but that Bates number I got later on. But that was the extent of My problem is multiple

the report that I had concerning her.

fold, but the main one is that on September 9th, or September 10th, the Wednesday before trial in this case, I was given a DVD, or excuse me, a CD with approximately three to 400 pages B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

478 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of documents on it, and contained within that is about 30 or 40 pages of Ms. Walbridge's -- supporting documentation for her conclusions. Since we've started this trial, your Honor, I

have been inundated with additional discovery materials and I quite candidly am struggling every night to get through them because we're now up to Bates 3043, or something like that. since September 10th, when I was at, like, 1700, I'm now at 3043, and having reviewed her report and given it the careful consideration because I knew she was going to be called today, there is no way I can -- there are specific scientific tests that she performed that had I had this report much earlier I could have had an expert conduct the same test and determine the validity of her test. I don't know whether or not there is So

such a science as she testified to, and I would say that at the very minimum we need a Daubert hearing, or her testimony should be excluded because we're in the middle of trial and I don't know if I'm going to get any more discovery or not. But I've

received, like I said, approximately 13- or 1400 pages of discovery materials. I'm in trial with you every day and every

night I'm trying to prepare for the next day and read all the additional materials I'm getting. I don't think it's fair and

I think I should have had more than just this one-page report, which I'll be happy if I need to make a copy or make an exhibit or show it to the Court. But it has some rather bare

conclusions on it, not any of the underlying background that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

479 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she has. THE COURT: Mr. Martin, after you received that report

with the bare conclusions, did you pursue with the government in getting any further details of how she reached those conclusions? MR. MARTIN: Mr. Kumiega and I had conversations, your

Honor, and in all candor, I can't relate to you the substance of the conversation. that time. I don't believe he had the conclusions at

I don't know if we discussed how she reached those I assumed, and I'm not saying Mr. Kumiega had

conclusions.

this discussion, I assumed I would shortly thereafter be getting this material that I got on September 10th. But I

don't know, I can't represent to you that I had a conversation with Mr. Kumiega about that fact. THE COURT: MR. KUMIEGA: Response, Mr. Kumiega. Your Honor, Mr. Martin received the

documents when we did in June, June 10th I think of this year. This is -THE COURT: The original one-page conclusions? Walbridge's conclusion. And as the case

MR. KUMIEGA:

is rocking along I called Mr. Martin up and I said, Mr. Martin, under Rule 16 since we have no formal notice, because I'm looking through your expert -THE COURT: When was this call made or conversation? Maybe ten days ago or so, prior to me

MR. KUMIEGA:

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

480 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receiving, probably about the 9th or the 8th, I believe I said, Mr. Martin, I haven't got a request from you under Rule 16, but I think we probably need to formalize this now, but I'm calling up to get more information from Kong and Walbridge, Mr. Kong who just testified, and with reciprocal discovery, so I'm getting that as soon as possible and I imagine you want it and I'm giving it to you because rule, under Rule 16 there is a certain summary that they have to provide only on the defendant's request. And I had ask -- Mr. Martin's requested So I gave him a Rule 16 summary

it so I'm giving it to you.

plus all the raw notes from the data collected by Kong and by Walbridge. And I said, you know, Mr. Martin, Mack, I assume Yes.

you'll give me the same courtesy, and he said, of course.

So there is nothing different than what he got in June, all it is is just super detailed under Rule 16 that the government tried to comply with under the Federal Rules of Evidence, your Honor. MR. MARTIN: Maybe I'm mistaken, your Honor, but I was

under the impression, and I might be wrong, but local rules require that these things be provided. I'm not saying Mr.

Kumiega didn't provide them when he got them, but I -- we have local criminal rules that say if there's a discovery dispute don't file a motion until you've talked it over. I was under

the impression when I got these that I had what there was relating to this lady. I got Mr. Kong and I don't have any

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

481 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problems with that. May I have a moment, your Honor. something I can't. (Brief pause) MR. MARTIN: The other point is, your Honor, the Kendall remembers

report that I'm complaining about, the report and data that I'm complaining about was completed on June 5th. And her notes,

which appear to be written in April, I got the report, the one-page June 5th, sometime in June, it's dated June 5th. Her

notes that I'm now complaining about appear to start sometime in April, and conclude maybe as late as sometime in May, all this background data. And I did get that, this one-page report

here, but everything that goes behind it that was completed before and available before I never got. just received it as of September 10th. And as I've already said, it's been difficult to get through all the material because of all the things that have been dropped on us, like reports for Erb that we can't read and that we spent hours and hours looking at, and I'm asking that you exclude her as a witness, quite honestly. THE COURT: Response, Mr. Kumiega. Your Honor, I got -- obviously, the And I have -- I've

MR. KUMIEGA: chemist is busy.

She's just not going to drop everything to do She's probably got hundreds of cases

one case just for us. across the country.

She gave me the report, and I immediately

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 turned it over to Mr. Martin, this is the first report. Martin was on notice of all her conclusions. Obviously, Mr.

obviously, he knows there is going to be some background analysis. I called him up and I told him I'm getting some new

materials under Rule 16, I'm ordering them up, I'll give you the whole packet because I did not get the whole packet initially. reports. He said, okay, and he'll give me his expert Soon as

We were not targeting turning anything over.

I got it, Mr. Martin received it also, your Honor.

But the

conclusions are the same, it's just how she got from point A to point B. That's the only difference, so Mr. Martin was on She's not deviating But I followed

notice exactly what she was going to say. from it.

I don't know how else to explain it.

scrupulously Rule 16 to the discovery rules.

We sat down

informally and we said we'll give each other the full file, and we did that the whole time. And the discovery comes in, it

gets Bates stamped in my office and we turn it over almost immediately to Mr. Martin. THE COURT: I guess my problem is generally when you

get the conclusions in June, I'm assuming those conclusions are based on certain theories and facts, which Mr. Martin says what he got in September a few days before trial was all done back in April and May. So I'm assuming all of that was done, and I

can't figure out why the expert didn't send all that background material at the same time she did her conclusions, because that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

483 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be the normal expert's report. Not only just your page And my

of conclusions, but how you reach those conclusions.

concern is is that a general practice of the government's experts to just send the conclusion page and then not, unless requested, send all of the reasoning for it? MR. KUMIEGA: Judge, I had to call these experts up I'm not even sure they were So I prompted them to

and ask for Rule 16 summaries.

aware of that necessity under the rule. give me the whole file. THE COURT:

Obviously, I'm busy doing other cases.

I understand that. She's here; you can ask her. But the I don't Mr.

MR. KUMIEGA:

science, obviously, the science has been well-tested.

think there is going to be any problem with Daubert stuff.

Martin is on notice on the conclusions and this is not anything hyper technical. It's technical, but it's not quantum physics.

We're dealing with basic chemistry and the conclusions are two-fold that she's going to reach in this area. So I really

don't see the great length that Mr. Martin wants to explore here because there really aren't any. THE COURT: What are the nature of her conclusions

according to the April, or the June -MR. KUMIEGA: She's going to say from her analysis,

one of the conclusions is that there was no solvent ever put to that firearm, nothing was ever taken off that firearm, that there was not -- the gun was not repainted. It's one of the

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

484 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. things that we were investigating and one of the allegations we had from one of the witnesses from what happened in this case. So we were getting ready to do that. There was only one coat That's my

of paint on that firearm, and one coat only. understanding what she can testify.

And she took paint samples

from different parts of that tube, and said they are all consistent, there was no abrasives, no solvents, and the spectrometer, the paint from two different locations are the same. So her conclusion was there was only one layer of paint

and it's the same paint. THE COURT: And are you planning on calling her next?

Is she your next witness? MR. KUMIEGA: That's what we were planning to do, your The reason we

I have -- I can call her out of time.

called her out of time was the ATF was worried about budget problems because of the end of the fiscal year, and they were worried about not having people here or running out of money for travel. That's why we called them out of time to And I was never aware of a problem,

accommodate that budget.

because I told Mr. Martin yesterday who we were going to call as a witness, and it was early this morning he said that, oh, by the way, I'm going to ask for some type of continuance regarding the testimony of Ms. Walbridge. THE COURT: Who else do you have for witnesses? We have four or five other witnesses.

MR. KUMIEGA:

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

485 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 1:15. (A recess was had, after which the following was had in open court:) THE COURT: MR. MARTIN: Mr. Martin, you may cross-examine. Thank you, your Honor. Going to be basically employees from the building regarding his storage of firearms in the secret -THE COURT: Are they available for this afternoon? Yes. Why don't we call those witnesses

MR. KUMIEGA: THE COURT:

Okay.

and give Mr. Martin time to have the weekend to spend more time reviewing her report and talking to his own experts, and then the Court can make a decision on her testimony Monday. having her here Monday. MR. KUMIEGA: THE COURT: Yes, your Honor. Plan on

And as I said, we're going to come back at

1:15 and recess at 3:00, so will that allow you to get all those other four or five employee type witnesses on? MR. KUMIEGA: Your Honor, I think out of abundance of

caution we do have everybody here. THE COURT: MR. KUMIEGA: Okay. I think we might run out before 3:00,

but they are here, your Honor. THE COURT: Okay. Okay. We'll be in recess until

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. A. Q. Is it Mr. Kong, Agent Kong, Inspector Kong? Mr. Kong would be fine. Thank you. Thank you, sir. CROSS-EXAMINATION

486

In our -- your examination on direct, your

testimony on direct examination, on several occasions you made reference to the fact that these toolmarkings you saw on what you described as Exhibit 3.16, I think has been introduced as Exhibit 3.16 -A. Q. Okay. -- the Sten, were not typical of commercial or factory Do you remember that testimony, sir?

markings. A. Q. Yes.

Okay. MR. MARTIN: Could we show the witness Exhibit 51?

Defendant's 51. Q.

I'm sorry. Now, is this what you would consider a

(By Mr. Martin)

typical commercial factory that you were talking about when you reached that conclusion, sir? A. Q. It's a little bit different. Okay. Yeah. Is that a

If we can go to the second picture.

typical factory setting, commercial factory setting that you were thinking of, sir? A. Yes. It's got the machines in there, got tools in there.

The space is a little bit more cramped, but it's not typical of B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the factories that I've been to. Q. A. Okay. Have you ever been to a factory like that?

487

I've been to some that are somewhat close to that, but I

would say this is at the other extreme. Q. A. Q. Do you know a guy named Charles Erb? I do not. I think there's one more photograph. Can you see that

one, sir? A. Q. Yes. And I guess my -- the question I have, when you said

commercial or factory markings, this is not the setting you were thinking of, was it, sir? A. Well, I wasn't thinking of any kind of setting, I was

thinking of the product that was being sold. Q. You were talking about in the impressions that these

marks that were made by hydraulics and special machines? A. Q. A. Yes. Okay. Is that a typical factory or commercial marking?

That would produce markings that are typically sold as

commercial products. Q. If a place like this takes a hammer and a stamp on a

round object and hits it, is that what you would consider typical commercial or factory markings? A. Some markings are produced in the way that you just Some, for instance, the

described that are sold commercially.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Norincos in China. Q. A. I'm sorry, I couldn't --

488

The Norinco rifles in china, that are made in China are

done that way. Q. A. Q. A. All right, sir. They are -- okay. Did I interrupt you? No. I was just going to say there are other markings on

different parts of the gun that are not necessarily the serial number that are put in by hand also. Q. Okay. Well, I'm going to try to keep my questions to the Okay?

serial number markings. A. Q. Okay.

As a matter of fact, if we back up a little bit, did you

work for the ATF in 1986, sir? A. Q. A. Q. A. Q. I'm sorry. Yes, sir. I was not with the ATF at that time. I think you said you graduated from high school in '79? That's correct. Okay. And so are you aware of the rules and regulations 1986?

of the ATF currently relating to serial number impressions? A. Q. Yes, I am. Are you familiar that the ATF now has regulations as to

the depth, height, spacing and so forth as relates to serial B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. numbers? A.

489

Definitely there is a -- there is a requirement for the

depth of the impressions and the height of the impressions, but I'm not sure there is a spacing requirement. Q. Okay. And that rule was not in existence in 1986, was

it, sir? A. Q. No, it was not. A person could take a screwdriver or an ice pick and

scratch E683 on a receiver like I think is in evidence, is it No. 7, the little -- the receiver up here I think. A. I don't think it's here. MR. MARTIN: I think it might be back there.

Do you have that, Mr. Knopp? A guy could take an ice pick and just

(By Mr. Kumiega)

scratch some numbers on this and that would meet the regulations back in 1986, wouldn't it? A. 1986. Q. I'm sorry. I don't know what the regulations are in

I'm just familiar with what is present. Well, you're familiar with the reason they changed the

regulation, are you not, sir? A. I believe I know what the reason is. I only saw the

regulation, I did not see something that explains why that regulation was enacted. Q. Are you familiar with the fact that they were being worn

off, serial numbers would be worn off? MR. KUMIEGA: Objection, your Honor. It's not part of

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please? Q. (By Mr. Martin) Certainly. If you know, do you know Q. his expertise as he just stated. THE COURT: Be sustained.

490

(By Mr. Martin)

Do you know when the new rule went into

effect, sir? A. Q. A. Q. I believe I do. When was that? I believe it's 2002. Okay. And were there, prior to that rule, regulations as

to the depth that a serial number had to be, if you know? MR. KUMIEGA: THE COURT: Same objection, your Honor.

If he knows, he can answer. Could you ask the question again,

THE WITNESS:

whether or not there was a minimum depth requirement prior to the 2002 rule you just testified about? A. I do not know. I believe that it was a modification to

the rules, so there may have been some requirement to the depth. Q. It may not be the same as what it is now. Anything you would say would be a

So you're guessing.

guess? A. Q. me. A. Okay. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Correct. Okay. All right. It's okay if you don't know, just tell

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. All right.

491

Now, you were provided, I'm assuming, prior

to conducting any testing a little bit of history on this firearm, were you not, sir? A. Q. 1986? A. Q. A. 1986 or before. Or before? It could be before, correct. My understanding is that it Yes. You understand that the tube of the firearm was made in

was either -- well -Q. How about registered in 1986? MR. KUMIEGA: Objection, your Honor. Looks like --

I'm not sure what the question is and he's trying to proffer an answer that he doesn't know what the question is or does not know -MR. MARTIN: THE COURT: I can restate the question, your Honor. Restate the question. Were you provided with information prior

(By Mr. Martin)

to your testing that this Sten had been registered in 1986? MR. KUMIEGA: Objection, your Honor. That's not this

Sten, it's another Sten.

It's a different subject matter

regarding the testimony of that machine gun. MR. MARTIN: I'm not understanding the objection.

I'll try to restate it. MR. KUMIEGA: That's not the registered Sten, your

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Honor. That's the government's contention. THE COURT: Okay. Let me rephrase my question.

492

(By Mr. Martin)

Were you

made aware prior to your examination of that firearm that it had been purported to have been registered in May of 1986, sir? A. Q. A. Q. A. Q. Something to that effect, yes. Okay. It may or may not be that firearm, but sure. But a firearm with serial number E683? Yes. Okay. In your testing and examination of this firearm,

did you take the age of the weapon into consideration? A. Q. A. Q. A. Q. No, I did not. The purported age. No, I did not. It had no importance in your examination? No. It's not relevant to my examination. So 22 years of wear is of no importance. Is that

Okay.

what you're telling us? A. Okay. There are other markings on that gun that are very On the

much different from the markings that I was looking at. magazine housing there are some -MR. MARTIN: responsive at all. Your Honor, I don't think that's

My question was 22 years of wear is of no

consequence, and we took off on some other markings. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: To which we object, your Honor.

493 That's

facts not entered into evidence regarding age of the firearm. This is pure speculation. THE COURT: I guess the question that I understood was

did he take into consideration a firearm which was purportedly manufactured in 1986 into his consideration of these, his conclusions. Is that basically what you were asking? That's what I'm asking, your Honor. I did not take 22 years of wear into

MR. MARTIN: THE WITNESS:

consideration because I saw other markings on the firearm that did not show the same kind of wear or, actually, that's your word. I did not see the same kind of effect on the E -- I

forget the number -- 683 that I saw on the other markings on the same firearm; so, therefore, I did not consider that. Q. (By Mr. Martin) Did you consider, for example, 22 years

of use? A. Q. A. Use as in firing the weapon? Correct. Correct.

That would not affect the markings on the side of the

receiver. Q. A. Are you -The kind of effects that I'm seeing on this serial

number. Q. Are you familiar with, sir, the fact that these, for

example the magazine of this gun is from World War II? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I am familiar with that. Okay. Yes. You say that you saw

494

And let me as you, sir:

markings on this gun that, I'll just ask you, that indicate that there was some inconsistency in that. what that is, sir? A. Q. A. Inconsistency with? Twenty-two years. It's on the magazine housing, the D number and the LB Would you tell me

initials on the side of the magazine housing. Q. A. Q. The magazine housing? Correct. You understand that this magazine was added to this at

some time? A. Q. It could have been. You understand that this magazine was manufactured during

World War II, right? A. Q. that? A. Well, if the magazine housing does not have the same kind Yes. So are you thinking that this receiver is older than

of effects, the markings on the magazine house does not have that kind of effect, then the receiver, which is only 22 years as opposed to the number of years since World War II, and that wouldn't have that much of an effect. Q. You're drawing your conclusion because the magazine B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 housing is -A. Q. Older. -- older. And you don't know the wear or if that

495

magazine housing has ever been used before, but we know it was made in World War II, right? A. Q. Uh-huh. And we don't know -- did you conduct any experiments or

any type of scientific tests on the magazine housing, sir? A. I did not. That was -- no, I did not. What kind of

testing are you referring to? Q. I believe I said any type of experiment or scientific

testing, sir. A. Q. I was not do any testings on the housing. Okay. So let me ask you this: This gun was seized on

June 10th, 2004. A.

Were you advised of that? That does not ring a bell, so,

I'm not sure if I was.

therefore, I don't think I was aware of that. Q. And the first time you ever saw this firearm was in

February of 2008; isn't that right? A. Very close. It came into the laboratory in February. Either late I

believe I may have -- well, that's very close. February or early March. Q. A. How about February 15th, 2008? May I check my notes? MR. MARTIN:

May I approach, your Honor?

I've got

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them right here. THE COURT: THE WITNESS: laboratory. Yes.

496

That's when the evidence came into the It was

I may not have checked it out right away.

probably a week later after that or maybe two weeks at the most later after that. Q. A. Q. A. Q. So it was late February or early March. So you got the evidence --

(By Mr. Martin) In 2008.

-- in the laboratory on the 15th of February of 2008? Yes. Almost, well over three years after it had been seized,

the first time it was ever tested? A. Q. A. Okay. Is that right? It don't ring a bell, I don't remember when it was I don't have -- I may or may not have the information.

seized.

It may be part of the information that came with the gun, but it's not relevant to what I was doing. Q. Okay. In your testing of this firearm, did you examine

it for any type of latent serial numbers? A. Q. A. Q. A. Latent serial numbers? Yeah. Like an obliterated serial number? Correct, sir. I did not. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

497

Did you take the firearm apart to look for any obscured

serial number, sir? A. Q. I was not. Have you ever examined firearms that had more than one

serial number, the same number? A. Q. A. Q. Yes, I have. One that was obscured and another one that wasn't? Yes. More than one number on the gun. Yes.

Okay, sir.

Now, were you aware, sir, that there was --

you're familiar with Sten tubes, I'm assuming, because of your work with the ATF. A. Q. Somewhat. Okay. You are aware that there was a period of time that

they could no longer be manufactured by civilians, were you not, sir? A. Q. A. Q. I believe that is the case. Sometime in, like, May 19th of 1986, if you know. I don't know that for sure. Okay. In your training with the ATF, were you aware that

during the period of time, whatever period of time that was, that the manufacturers were pumping these out as quick as they possibly could? A. My understanding is that -- maybe if I could explain to

you what my understanding is. Q. That's what I'm asking. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

498

There was a law that was passed or enacted in 1986 that That's not my area in the

concerns the machine guns.

laboratory, so I don't know very much about that, but I do know the law was enacted at that time. So if manufacturers were

trying to beat the deadline and pump them out, as he said, then I would believe that. But I'm not familiar with that. I don't

deal with that particular law itself, or interpretation of the law. So I -- that is why, when you are asking me questions

that I kind of know about it, but it's not really what I do. Q. Okay. All right. Now, you were talking about some

scribe marks on the firearm that I've got up here. A. Q. Yes. And I believe you said it looked like somebody took a

sharp object and scribed E683 on the magazine; is that correct, sir? A. Q. me. A. Q. Yes. And then sometime, and you don't know when, that receiver No, it's on the receiver. I'm sorry. Yes. Thank you for correcting

On the receiver.

was stamped; is that correct? A. Q. A. Correct. Stamped? I do not know when it was stamped, it was stamped but I

do not know what the timing was. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You can't tell us, can you, that it was scribed along

499

with many, many others and put in a pile, and days or weeks later somebody comes along and stamps them. that didn't occur, can you, sir? A. I cannot tell you that. All I know is that it was That's all I can tell you. You can't tell us

scribed before the stamping. Q. Okay.

So if somebody wanted to make sure that they

didn't get the wrong serial number on there when they did get around to putting the serial number on it, they would just scribe it on there. A. Q. Could that be a possible explanation, sir?

That could be a possible explanation. And if you had, like, hundreds of these just sitting in a

corner that you had just manufactured and you didn't have time to stamp them when you got them all, you would just scratch the numbers on there, right? A. Q. Yes. Now, you viewed, I believe Agent Knopp handed you I'm just going to show them to you

firearms E682 and E685.

from here, I'm not going to bring them up there, but do you recall these exhibits? A. Q. Yes. Okay. And the first time you ever saw E682, was that

today -A. Q. Yes. -- in the courtroom? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes.

500

Well, actually, I seen it before I walked into the

courtroom. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Like at the U.S. Attorney's office or something? In this building. Oh, in this building? Yeah. Today? Today. And did you have a microscope with you? Nope. Magnifying glass with you? I did not use one. So the -- let me get to E685. Same thing true to this

firearm, that the first time you saw it was today? A. Q. A. Q. A. Q. A. Q. Yes, sir. In this building? Yes. And you didn't examine it with a microscope? No, I did not. And you didn't examine it with a magnifying glass? I did not. And you don't have any photographs like you have of this

firearm that are 50 times magnification, do you, sir? A. Q. I do not. For example, Government's Exhibit No. 9, if we can go to B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the photograph 6. 9. A. Q.

501

That's photograph 6 of Government's Exhibit

Do you see that, sir? Yes. And I'm assuming that 10X means that's ten times

magnification, right? A. Q. A. Q. Yes. That's the microscope magnification.

And you didn't do that with 682 or 685? No, I did not. If we can go to photograph 7. And that 50X means you

took a 50 times magnification of that with a microscope, right? A. Q. Yes. And again, that didn't occur as to these guns and did not

occur as to that receiver that you have up there, is that true? A. Q. Yes. Okay. Thank you. And the receiver, if we go to the

receiver, when is the first time you saw it? A. Q. Earlier this morning in this chair. Okay. I'm going to borrow it from you for just a second.

So you did not even see this until you got in the chair today? A. Q. Right. And is that the serial number right there (indicating)?

Is that what you believe is the serial number, sir? A. Q. Yes. Now, did the ATF, or any ATF agents or any law

enforcement agents whatsoever provide you any dies for B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sorry. Q. comparison to any firearms, sir? A. Q. No, I did not receive any. So I'm going to show you what's been introduced and

502

marked for identification purposes as Defendant's Exhibit 50. It will be on your screen there. These have been introduced

into evidence, this photograph, as the dies that Mr. Erb used for the stamping of his Sten guns like the one, like the Sten tube in front of you and the two here, back in '86, sir. make that representation to you. A. Q. A. Q. Okay. Did you ever get these? I did not. And I think there's another picture after that. There's Okay? I'll

a second picture on there. before? A. Q. No, I have not. Okay. MR. MARTIN:

Have you seen these pictures

If we could back up to the full set.

I'm

If we could zoom in just on the -- the numbers. Can you see those clearly on your

(By Mr. Martin)

screen, sir? A. Q. Okay. Okay. I can see them. And do you see any problem with these being used

as the numbers and letters that would be used to stamp Stens during 1986 on these two guns that you examined today and that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bonnie? Q. (By Mr. Martin) Can you see the 5 in the corner? receiver up there, sir? A.

503

I don't know what you are asking when you say do I see Problems? What kind of problems?

any problems. Q. A.

Is there even an E in there? I cannot see it clearly enough to tell you that. Looks

like -Q. If you want we can go through them one by one. MR. MARTIN: Can we zoom in on those individually,

It's

upside down. A. Q.

Can you see the 5 in the corner, sir?

Lower right-hand corner? No. Actually, at the top left-hand corner. Can you tell

me what that is? A. Q. A. here. Q. Let's go to the lower right-hand corner. What does that No, I cannot. Well -I can't make it out. I cannot make it out on the screen It might be a 2. Is that a 5?

look like? A. Q. A. Q. A. That looks more like a 2. Next to it on the left? Either a 6 or a 9. Next to it on the left? Well, how about if I say that's not an E, because that's B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. what you're -Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Okay. Above that? Above that, that looks like a 7.

504

-- asking. Okay. Yeah. Eight? Okay.

Next to the 7 would be a zero?

Above that a 4? Looks like a 4. Three and maybe a 5? Maybe?

The top middle, I cannot make that out. The top middle? Yeah. That doesn't look like a 3 to you? MR. MARTIN: THE WITNESS: (By Mr. Martin) I'm sorry. Can we zoom in any more on that? I can't make it. Right there on the top in the middle.

But the far upper left-hand corner does look

like a 5 from here now. Q. Okay. If we can go to the other side. Can you see those

clearly? A. Q. A. Better than the last set. All right. Yeah. Top left?

It's a 2, 4, and I cannot make out the top right.

And then from the left to right, looks like a 6 or a 9, 7, 0, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

505

and then the bottom row, 1, 6 or 9, and I cannot make out the last one. Q. A. Do you see an E in there, sir? No, I do not. MR. MARTIN: If we could go to Defendant's Exhibit No.

39, maybe the second picture first. Q. (By Mr. Martin) I'll represent to you, sir, that this

has previously been introduced into evidence as a photograph of a gun that was purported to be manufactured by Mr. Erb. A. Q. Okay. And by looking at that, can you tell me the location -Okay?

can you see the number? A. can. Q. I can make out a couple of those. Thank you. And can you tell from that photograph -- if we need to Oh, better. Yes, I

back up -- where that is located on the firearm? A. Well, on the upper left-hand corner of the photograph

there is a knot there that could possibly be the, the bolt handle. Q. Okay. MR. MARTIN: The first one we had. If we could go to the next photograph. I'm sorry. Can we zoom in on this area

right here (indicating)? Q. (By Mr. Martin) Are you familiar with what area of the

firearm that is, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I see the spring, there is some kind of spring on the That might be part of the

506

upper part of the photograph. trigger mechanism. Q. A. Q. that? A. Thank you.

That would be in this area, under this cover? Possibly, yes. Okay. And can you make out the 680 as best you can under

The character on the right could be a 0.

The

middle one could be an 8, and the left could be a 6. a very good photograph. Q. A. Q. A. Q. I didn't take it. Or maybe the screen is not that good. I understand. I'm having trouble with that. So -I'm sorry.

It's not

But that serial number is, would be under normal

circumstances covered by the magazine, or not magazine. A. Q. Okay. Is this a trigger guard or trigger cover? What is this

called? A. Q. That's part of the trigger mechanism housing. Okay. So this housing cover under normal circumstances

would actually cover that serial number, right? A. Q. A. Okay. Yes.

I'm not asking to you agree, I'm asking you if I'm right. Well, if it's where you say it is, then yeah, that's B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sorry. covering that. Q. Okay. MR. MARTIN: Exhibit 40. And if we could go to Exhibit 6.40.

507

I'm

I'm sorry, I was looking at serial numbers

and trying to talk at the same time. Q. (By Mr. Martin) I will represent to you again that this

purports to be a photograph of another firearm, a Sten that was manufactured by Erb. MR. MARTIN: pictures, Bonnie. And if we could go forward a couple of Can we zoom in on that Back up as

Stop right there.

area again as best, and focus as best we can. best -Q. (By Mr. Martin)

Can you tell by looking at that, number

one, the location of the, the location -- what is this location right here called on the firearm? A. I don't know where that is. I cannot make it out in the

photograph. Q. sir? A. Okay. Is that not the trigger housing mechanism also,

If you don't know, that's okay. I don't know. I cannot tell from the photograph. I'm

sorry. Q. A. Can you make an E681 on that? There is some kind of marking there. I cannot make out

what it says. Q. All right. Now, does that appear to be the same

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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photograph that I showed you, sir, or not the same photograph, but -A. Q. A. Q. Sure. -- the same area? Sure. Does that picture in particular, that area right there

(indicating), can you identify what portion of the firearm that would be in, sir? A. It's hard to try to do that without -- just on the I mean, on the left-hand side in the area that

photographs.

kind of looks -Q. A. Q. A. That area? To the left. Do you need a pointer? What I'm talking about is this area here (indicating),

that could be the trigger guard, but again, if that's the trigger guard this probably is the trigger mechanism housing that you were referring to. But, again, off of the

photographs, I would be hesitant to give you an absolute yes on that. Q. Okay. Thank you. Do

If we could go to Exhibit 42, Defendant's Exhibit 42. you see this exhibit, sir? A. Q. Yeah.

I will represent to you that that is also what purports B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be another one of Mr. Erb's firearms -A. Q. Okay. -- with this 600 series here.

509

Actually, that is actually

a copy of 685, which is this firearm you actually saw this morning, right? A. Q. A. side. Okay. Yeah.

Can you visualize that? You know, I'm sorry, but I see a 5 on the right-hand Could be an 8 next to that on the left. But those

numbers are just hard to see. Q. A. Q. Okay. It's -The -- let me go to one last one then, or one more. Again, this is another gun that I

think it's Exhibit 44.

pictures were taken by the ATF of a gun purportedly made by Mr. Erb. Okay? MR. MARTIN: If we can go forward a couple, Bonnie.

Can we zoom in on this? Q. (By Mr. Martin) Do you see this area here, sir, where

the serial number is? A. Q. A. Uh-huh. And can you see the serial number? Better than last ones. Looks like the E. Looks like a 3

on the right. Q. And, again, you were not provided any serial numbers and B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. Q. A. you sure didn't see in the set an E? A. Q. I'm sorry? In the set that was held in the hand in Defendant's

510

Exhibit No. 50, there was no E present? A. Q. I did not see any die that looked like an E. Okay. MR. MARTIN: One more. And if we could back up one, Bonnie, Can we focus in on all this (indicating)? Can you read the writing that's on E693? Would you like me to try to

(By Mr. Martin)

I can make out most of it.

read it so -Q. A. Q. I'm asking you, number one, can you read it? I think I can. And you haven't seen anything like that on any of the

other E series of Erb guns, the Sten guns, have you, sir? A. Q. A. Q. A. Q. Off the photos that you've shown me? Yes, sir. No, I do not see those markings there. It's on the screen. Can you see that, sir, clearly?

Much better than the other one. And those markings were not on any of the firearms that

you examined today, were they, sir? A. I did not see -- correct. I did not see the markings on

the firearms that I looked at today. Q. Okay. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. MARTIN: (By Mr. Martin) Thank you, Bonnie. Now, if you had been submitted dies,

511

could you have done a test to determine whether or not a particular die was used on this firearm that the government has introduced into evidence as 7.0? A. Q. Which is my Exhibit 1? No. No. No. These are the ones you were just shown

today. A. Q. A. Q. A. Q. Oh, okay. If you were given -- if you were given dies -Uh-huh. -- those that were in that gentleman's hand there -Yes. -- could you have done a comparison to say those dies

were or were not used to make this serial number? A. Q. 6.0. Yes. Okay. That's possible. And the same would apply to Government's Exhibit

You could have done an examination of those dies in that

gentleman's hands and said whether or not those dies were used to make this serial number. A. Q. A. Q. A. Yes. Yes. Right?

That's right.

Except for the E? Because there was no E. There's no E in the set? Right. Yes. I don't understand.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

512

And you would have either said, yes, those numbers that

were in that photograph were, or no, they weren't, right? A. Oh, maybe they did not make the marks that is That's an

reproduceable enough for me to say a yeh or nay. option. Q. A. Kind of inconclusive? Right.

It could be a yes-or-no inconclusive because it

just didn't reproduce the kind of marks that I would expect to see. Q. All right, sir. And likewise, this is your Exhibit 1,

this is Government's Exhibit 3.16. A. Q. Okay. If someone had produced dies to you, you could have

examined those dies and determined whether or not they could have been used to make the marks on this firearm? A. Q. Yes. It's possible.

I'm going to hand you what's been introduced into

evidence as Government's Exhibit 3.8, and ask you, number one, if you've ever seen them before, and number two, if you recognize -- if you haven't, if you know what they are. A. Q. A. Q. A. Okay. No, I have not seen them before.

Do you know what they are? I recognize what they are. Okay. That are used to make impressions. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 They are die stamps.

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And can you tell me, sir, just by visual examination,

513

based upon your expertise and background, those were seized in a search warrant from my client's house, can you tell me, sir, whether or not those could have possibly been used based on size or whatever to have made these (indicating)? A. Based on the size alone, those could not have made the

E683 that's on this receiver. Q. A. Q. A. Okay. So you can completely --

Because -I'm sorry. Because -- yeah. Yeah. Now, that is, that is assuming

that -- if I take the E stamp and I stamp on there and I get the whole impression of the E. Again, I'm not sure what was

used to make those, because it could have been a combination of dies to make that letter E. Q. So --

These dies are smaller than the numbers on this firearm;

is that correct? A. Q. A. Q. A. Q. Right. And it's immediately apparent to your eyes? Right. As a trained expert? Right. Now, as I understand, in your testing process, you began

with, or somewhere along the examination you said you made a silicon cast; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes.

514

And you said you apply a, is it some type of a gel and a

solid, something makes it solid? A. Well, it's basically, it's -- it's if anybody has ever

done epoxy before, where you have a two-part mix, where you mix them together and you have so much time before it sets, that's basically the same thing except it's a silicon material. The

silicon material itself is soft and liquidy and you have to add a hardener to it. And when you add the hardener to it, then it

causes the soft stuff to solidify. Q. And when you -- is it kind of like when you go to the

dentist and he sticks that thing in your mouth that we all hate and he pulls it out and has an impression of your teeth? A. Q. Pretty much. Okay. And I believe you said that when you do that, you

apply that to the surface, it creates a cast of what's in there, right? A. Q. Yes. Okay. And when you do that and you pull it out, does it

also remove anything that sticks to it? A. Q. A. Q. A. Sometimes it does, sometimes it doesn't. Okay. Could remove some paint?

It's possible. Could remove dirt? Yes, it's possible. I just say sometimes you could

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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remove stuff that's in the impression, and sometimes you don't. Q. A. Q. A. Q. A. Q. Okay. I'm not asking what --

It's possible. Paint could be in there, right? Yes. Rust could be in there, right? Rust particles, yeah. Okay. Sure.

Anything that can get in that impression, whatever Would

it be, be it lint or whatever, it could possibly remove. you agree with that, sir? A. Q. Yes. It's possible.

Now, when you use a manual stamp to stamp an unsmooth

surface, do you sometimes -- I'm assuming you've done experiments like this. round surface. A. Q. Not a flat surface. Exactly. Thank you. Okay. Sure. An unsmooth surface, for example, a

A flat surface, do you sometimes

get imperfections and doubles when you try to stamp that? A. Q. It's certainly possible, yes. And so the E683 stamp that looks like it has multiple

stamps could have been stamped one time or more times and got replications because it's an uneven surface; is that true, sir? A. Q. Yes. Sure.

And also when you hit that unflat surface, or rounded

surface, whichever you want to call it -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Okay.

516

-- with a hammer or some heavy object onto the die, you Is that what

get that, what I would call a bounce effect. causes that, sir? A. Q. A. Q. It could. Okay. Yeah.

I know what you're talking about.

Sometimes you hit it and it kind of bounces.

Yeah.

And it will cause you to have a -- and this is just a -It will cause you to have

I'm trying to do an example.

something like this where you have a duplication of a stamp, let's say. And that's a very poor -- that's just my That what we're talking about?

handwriting, okay. A. Q. Yes.

So it wouldn't be uncommon for somebody to hit this right

here, a stamp with a hammer on a nonflat surface to have that type of an impression? A. Q. It can happen. Yes.

And it could happen not only to an E, but to a 6 and to

an 8 and to a 3, right? A. Q. Yes. All right, sir. Now, I believe you testified that the

stamping when it was done creates because of, I guess the impression, creates grooves coming out where the metal is kind of distorted on the rim or on the edges. A. Very close to it. Yeah. Would that be fair?

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

517

And when that occurs, you said sometimes that knocks the

paint loose from that edge, right? A. Well, it creates more of a probability that the bulge-out

rim that you're talking about would contact the die itself and that would rub against it. And if there were a coating on That's a likely

there, like paint, then that would be removed. scenario. Q.

And likewise, because the rim sticks out farther than the

rest of the gun, does it not, sir? A. Q. A. Q. Yes. Of the receiver, yes.

The receiver. The surface that we're talking about. Then that surface is going to have more -- you'll come in

contact with that bump or that ridge before you'll come in contact with the receiver; is that right? A. If you're implying that -- if you're saying that that rim

is so high that, that if you scratch, say, a fingernail over it, you'll feel that, it's certainly possible, but we're still talking about something that's magnified when we're looking at that. But even if you try to run your finger over it you might

be able to feel that. Q. Okay. And if I held it for 22 years with this hand and

rubbed my hand over it every day, that might also rub some of the paint off of that, off of that rim or that, or that bump as you called it? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. I don't know the answer to that. Well, you know paint --

518

I know paint, sometimes you rub it -- I just don't have It's a -- yeah.

enough information to answer that yes or no. Q. A.

So you just don't feel qualified to answer it? That if you could rub on something like that over 22

years and rub the paint off. Q. You would agree with me that over time, I don't know how

long, but over time this paint is either going to get rubbed off or deteriorate or somehow or another it's going to distort some? A. Q. Yes. As a matter of fact, it appears to have some -- well, let Does it appear to have some distortion on it, for

me ask you:

example, right now in this area (indicating)? A. Q. A. Q. A. Q. May I? Yes, sir. Yeah. Some of it is coming off.

Back up here, the tip up here. Uh-huh. Okay, sir. And might that also be an explanation for the

absence of paint along the rim or the bump that you talked about, sir? A. Q. I don't believe that would be an explanation. That's totally not plausible whatsoever? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Not according to what I was seeing.

519 What I was seeing

was along that little bump that I was referring to, or the little bulge, there are little marks in there that, that indicated it contacted something, and something hard, like a die or something like that. So that's why. And then if you go

a little bit farther away from that little bump, the coating or the paint is still in really good condition, not like what we were just looking at a minute ago. Q. A. Right. That's kind of like a uniform, you know, deterioration of But right in that area where that serial number is, So that's

that area.

the coating is still in relatively good condition.

why I wouldn't say that that's -- that would not be the case. Q. So with wear and tear over 22 years of a weapon that's

been stamped, will not have any impact on the paint around the serial number. A. Is that your testimony?

I did not -- that's not wear and tear, is what my

testimony is. Q. Okay. I guess my question is: Can wear and tear over 22

years of a firearm, hand-rubbing or holding by the serial number cause the paint to deteriorate, sir? A. It can cause -- it's possible that the paint could

deteriorate, but not in the way that I was seeing around that serial number. Q. Okay. And, now, I believe you testified that different

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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520

manufacturers place the serial number on at different stages of the manufacture process; is that right? A. Q. They can. Okay. Sometimes they put it on before it's painted,

sometimes they put it on after it's painted? A. No. It's usually, it's usually placed onto the gun

before the final finish is put on, and the finish can be anything - plating, painting, that kind of thing. What I was

referring to is that sometimes, sometimes the finish surface, does not get a paint, so they would go ahead and put a serial number on before some of the other parts are done. possibility. Q. A. Q. A. That's a

That's what I meant by different stages.

And you But -Go ahead. I'm sorry.

They do not paint it first and then apply the serial

number. Q. Well, you don't know what Erb does, is that fair to say?

Do you know what Erb does? A. Q. I don't know what Erb does. I would not expect -- okay.

Now, have you seen firearms that have been -- the serial

number has been painted over? A. Q. Yeah. I'll show you Government's Exhibit 6.0. Can you tell by

looking at that gun without a magnifying glass and without a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

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521

microscope whether or not that firearm has been painted since the serial number was put on? A. Well, usually when you ask me to express an opinion like

that I would like certainly to see it under laboratory conditions. But if that's not available to me, and you want me It looks

to give you a yes-or-no answer, I could do that.

like, looks like it was painted after the impression was stamped. Q. A. But if you were -I apologize.

I'm sorry, I didn't -- repeat your answer. Okay.

If -- if I had to give you a yes-or-no answer I

would say that, yes, it's been painted over after the serial number was put in. Q. A. And -But, of course, something like that I would definitely

like to see in a laboratory with better lighting and magnification in order to make that determination. Q. Based on what you have right now, though, this gun has

been painted after the application of the serial number? A. Q. A. Q. A. Q. Coated. Sure. It's coated, because I don't know if that's paint. Okay. And I didn't mean to imply that. Yeah. Could I use "coating"?

No, it's just a clarification on that.

Do you know, can you -- if I -- without further

examination scientifically, can you tell how many, if any, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 coats have been applied to this firearm, sir? A. I would not express that opinion without testing it

522

first. Q. same? A. Q. Yeah. My answers will be the same. And likewise, Government's Exhibit 7.0, can you tell the

And can you tell, sir, and again, to the same one,

whether or not there is more than one coating on this? A. Q. I cannot tell without testing it. All right. It's possible that both of those firearms

have been coated since -- recoated, let me say that? A. Q. A. Q. Is it possible that those firearms have been recoated? Yes. Yes, it's possible. Now, the firearm that you examined, this firearm here,

you have characterized it as a Sten, I believe Mark III, correct? A. Q. Yes. And have you seen, for lack of a better word, the

pedigree behind this firearm, sir, the blue ribbon records or whatever? A. Q. I've not seen any records regarding to that gun. Are you familiar with how they are made, the process, ATF

Form 2? A. No, I'm not familiar with that process. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Are you familiar with the fact that the person that

523

manufactured the receiver creates a form and sends it into the ATF, sir, for registration? A. area. Q. I believe that they need to. I don't do regulation. So you don't know whether or not whoever created the form But again, it's not my

for this book, you don't know whether they were accurate, inaccurate in the creation of that form? A. Q. That is correct. I don't know anything about that.

Are you familiar with, sir, whether or not anyone from

the ATF inspects tubes like the tube up there or this tube prior to them being registered? A. Q. I don't know if they do or not. Okay, sir. MR. MARTIN: THE COURT: (Brief pause) MR. MARTIN: just a moment? THE COURT: MR. MARTIN: (Brief pause) (By Mr. Martin) This is Government's Exhibit No. 8, sir. I'm Yes. One moment, your Honor. I apologize. Your Honor, may I step to the back for May I have just a moment, your Honor? Yes.

I want to draw your attention to that serial number, sir. going to ask you to compare that.

What's that serial number?

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Looks like it's E705. Okay. And this is Government's Exhibit No. 6.

524

Ask you

what that serial number is, sir. A. Q. E682. Is there anything that's immediately apparent about these

serial numbers? A. Q. A. Q. A. Q. A. The size. And what is unique about the size? What is the differences between the two? Yes, sir. One is bigger than the other, the -Do you need a microscope to see that, sir? Well, it's hard to see this one. I'm sorry. What are

you asking? Q. I'm saying do you need a microscope to see that one is

bigger than the other? A. Q. Oh, okay. Okay. No, you don't.

So it's immediately apparent to you that the 705

is bigger than the 682, correct? A. Q. Yeah. I'm going to also show you Government's Exhibit No. 7 and

ask you to do the same comparison to Government's Exhibit No. 7, to the E705. A. Thank you. Yeah. It's -- the number E685 is closer to

E682, which are smaller than the E705. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

525

So this tube's serial numbers right here are larger than

the serial numbers on -- I'm going to put these up -- than the serial numbers on these two firearms, Government's Exhibits 6 and 7; is that right? A. Q. Yes, they are larger. And you're familiar that all of those guns, and when I

say "guns" I'm referring to the tube up there also, were manufactured by Erb, sir? A. I don't know that, but that's what I believe you are

saying. Q. Okay. That's already been submitted to the Court that

they were manufactured by Mr. Erb at the same approximate time. Did you know that, sir? A. Q. I don't know that, but -- I don't know that. All right, sir. Based on all the testing you did, you

cannot tell this jury, can you, sir, that on February 19th, 2003, this serial number was not on this gun? A. Based on my -- could you repeat that? Based on my

testing -Q. A. Q. And examination -Okay. -- you cannot tell this jury that the serial number that

is on this gun, E685, was not on that gun on February 19, 2003? MR. KUMIEGA: Objection, your Honor. That's not in

the province of this expert.

He's asking a question that's a

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. jury question. MR. MARTIN: answer that question. THE COURT: Objection will be overruled. I'm asking if he has the expertise to

526

THE WITNESS:

I cannot tell you when that impression

was put on there; therefore, I cannot tell you whether that impression was on there on the date or not. MR. MARTIN: THE COURT: Nothing further. Any redirect? Yes, your Honor. REDIRECT EXAMINATION

MR. KUMIEGA:

Mr. Kong, you've looked at some defense exhibits, some

photographs; is that right? A. Q. Yes. And they are photographs that the government has

stipulated regarding certain serial numbers of different Sten machine guns purportedly manufactured by Mr. Erb; is that right? A. Q. Yes. All right. Do those photographs appear to be made in

laboratory conditions? A. Meaning that do those photographs look like something

that -- could you -- I don't think I understand that. Q. What's the quality of the photographs versus the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

527

quality -- let me finish -- with the quality of the photographs you introduced in front of the jury today? A. It's not very good. I cannot make out most of what's on

there. Q. Can you tell much details from the defendant's exhibits

that we showed you today? A. Q. A. Q. Regarding to the photographs? Yes. No. I cannot tell that much detail.

Is it better, can you make a better determination when

the firearms are brought in to you such as 682 and 685 to make a determination? A. Q. A. Q. Yes. Even with the tube, E705? Yes. Is it better -- physical evidence is better than the

photograph? A. Q. Correct. And you did different magnifications on the photographs

that you presented in front of the jury today; is that right? A. Q. A. Q. Yes. Ranging from ten up to 50; is that right? Yes. Regarding the stamps. How long does it take to wear out

a stamp? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Probably a long time unless you misuse it.

528 Under proper

conditions, you could use it for a long time. Q. A. Q. Okay. Years. Okay. Would -- does it also depend on the metal that Well, how long?

makes the stamp? A. There's a lot of factors. It depends on the metal that

makes the stamp, depends on the metal that you stamp into, and again, use, proper usage. Q. So for instance, the stamps that you saw in the

government's exhibit where the man was holding the stamps, you don't know how long ago they've been used? A. Q. A. How much use there's been? Yes. I cannot tell how much use they were. How much use they

were -- how many times they were used. Q. Okay. Would that affect your determination on matching

the stamps with a known impression that you want to determine if they make some kind of pattern match or fracture match? A. I think the question to me before was whether I can match

the impressions on a gun from the stamps, and it definitely depends on usage. And that's part of the reason that when I

was talking about can I say yes, no, but there's an inconclusive, can you make it reproduceable. The surfaces on a

die stamp can change with use, and if it's changed, then you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can no longer match it back to the impression that was made previously.

529

So there is always that possibility, so we leave

ourself the opportunity to say it's inconclusive, we cannot tell whether it's a yes or no. Q. So again, the photographs of the stamps give you -- you

see -- it gives you an indication of the size of the stamps; is that correct? A. Q. Yeah. Would it be better to have the stamps physically in front

of you to make a comparison? A. Q. Oh, yeah. So physical evidence is always better than the photograph

in that situation? A. Q. Yes. There's not much you really can glean from the

photograph; is that correct? A. Q. No. You couldn't even really tell the size of those stamps,

can you? A. Some of those it was hard for me to figure out what the

impression was supposed to make. Q. And you're not even sure that's the full set other than

the photograph that you were seeing; is that correct? A. That's right. It's whatever is on the photograph. I

cannot -- I cannot, like I said, from the photograph itself it B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. was difficult for me to see what number is represented on there, so whether it's a full set or not. Q.

530

For instance, you were looking for E, counsel was making

you -- searching for an E, is that correct, in the stamps? A. Q. A. Q. Yes. And you couldn't find an E; is that right? It's a set of -- no, I did not find an E. Okay. So it's probably -- there's probably an E

somewhere that was probably not photographed; is that correct? MR. MARTIN: Well, I guess we can assume facts that

aren't in issue, and I would object. THE COURT: That will be sustained. Did you see an E in those stamps? Those were

(By Mr. Kumiega)

I did not see anything that resembled an E.

number stamps to begin with, and you're asking me to look for a letter in a set of number stamps. Q. There was some discussion of the wear and tear of the

serial number here; is that correct? A. Yes. MR. KUMIEGA: THE COURT: Your Honor, may I approach? Yes. Can you show the jury, please, where

(By Mr. Kumiega)

the most, I guess, wear and tear on the firearm or on the coating is on Government's Exhibit 3.16? A. It was where I was showing earlier. It's along this

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 area. There's some up here, there's some near the ejection

531

port and there might be some back here too (indicating).

But

basically those are the worst areas of the deterioration of the coating. Q. All right. And where the purported serial number is,

E683, how would you characterize that to the rest of the firearm? A. Yeah. That is in this area, and like I said before, the

coating surrounding it appears to be pretty good condition as relative to where the number is. So that's why I thought that

it was not wear and tear that I was seeing on the edges of the grooves of the impressions. Q. Now, you looked at 682 and 685, those numbers; is that

right? A. Q. Yes. Do 682 and 685, do they appear to be similar in

characteristics and in makeup? A. Q. A. Q. 682 and 685? Yes. They do. All right. And the number that you looked at, 683, how

different are they from 682 and 682? A. Q. A. Dramatically different. All right. Right. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 You say dramatically different?

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

532

Can you explain each and every way how they are different

from 682 and 685? A. Yes. The quality of the stamping is much better. It

appears to be one hit on the die and made that one single impression. This one, there are multiple impressions. The

sizes are different, the alignment is different. are really close in a line, evenly spaced. all over the place.

682 and 685

This one is really

You have some that are higher and some

that are lower, and the 3 is kind of off to the right, much farther away than the rest of the other digits. Q. And what is more consistent out of those three serial How does 705 compare to 683, 682,

numbers, 682, 685, and 705? and 685? A. Q. A. Q. A. 683.

And that's the tube.

How does 705 compare to the three -Yes. -- that we're talking about? Yes. Explain how --

705 is closer to 682 and 685, and it's not as close to The numbers are, again, looks like it's one strike, they

are in a line, they are evenly spaced, and this one is not. Q. Your conclusion that you presented to the jury is that

683 was stamped and it captured or pushed in the paint on, or the coating on the firearm and pushed it in; is that correct? A. Q. Yes. And is that consistent and 682 and 685 from what you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 looked at, or is that radically different? A.

533

I don't think I can answer that because it appears to me

that in this firearm the coating was there first and then you have to stamp it. Q. You're talking about the firearm you examined for

forensic purposes today? A. Q. A. Right. Yes. That appears to have this coating applied first before The other two that I The 683.

the number and impressions applied.

looked at it appears to be the number was applied first before the coating was put on. So it's really different and it

wouldn't be appropriate for me to answer that question. Q. A. like. Q. A. Is there coating on 705? No, there's no coating. It still needs some processing Now, 705 is the tube; is that correct? Yes. It's the unfinished receiver, is what it looks

before you could finish it. Q. A. Q. But there's a serial number on that; is that correct? Yes. Let me ask you this: A stamp or a die has to be a

certain size to be consistent with a -- if you're going to stamp a round cylinder; is that correct? A. You would like to, yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

534

So if you used a die that is too big or a stamp that is

too big, it would rock the serial numbers? A. Q. Right. And you wouldn't want to do that. Does it appear in 683 that a serial number

All right.

that was knocked in there was too big for that tube? A. Q. Yes. Okay. It does appear that. So would a conclusion be then, if you're going to

stamp 682 and 685, those stamps would obviously have to be smaller than the stamps in 683? A. Q. Yes. Okay. And if you're a manufacturer, you're going to use

basically the same stamps all the time to put in your serial numbers? A. Yes. If they work want to continue using them, you don't You don't want to sell a product that looks -That was

want to alter.

with markings that, like something that's on there. all of it. Q.

Now, you can't tell on the exhibit that was submitted to

you on 683, E683, Government's Exhibit 3.16, when this serial number were placed? A. Q. A. No, I cannot tell. Is there any science that could do that? No. I don't think so. Unless, unless -- well, I'm being

extreme here.

Unless there was something that was captured in

there, something that was in the impression that was pressed on B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

535

there and you could sample that and determine the date on to that. But that's -- that would not be the kind of science that

we will be practicing anyways. Q. yet? A. It wouldn't be something that would be -- yeah, that's It's something that's not been -- it's not in our realm

not something that you would want to do. Q. So you're telling the jury that the magazine well, the

D95843, whatever that number is, dates back to World War II? A. Yes. The markings on the magazine housing, yes, dates

back to World War II. Q. But the tube, you don't know when the tube was

manufactured? A. Q. I do not know that. Could have been manufactured ten years ago; is that

right? A. Q. A. Q. A. Q. A. It could have been. Or even maybe 15 years ago? Yes. Or even five years ago? Yes. We don't know? Or 45 years ago -- actually, I'm sorry -- 60 years ago

back in World War II. Q. Right. So you can't tell when the tube was manufactured,

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you can't tell when the serial number was placed; is that correct? A. Q. That's correct. But it appears to you when you had conversation or

536

dialogue with the defense attorney that there was no wear and tear in that part of the machine gun; is that correct? A. Q. A. Q. A. Q. A. Q. A. on. The part where the serial number is impressed? Yes. That's correct. And the wear and tear is on -- above it; is that correct? Yes. The silicon impressions that you made. Yes. Again, what does that do, please? That replicates the surface that I'm bringing the cast That allows me to go under a microscope to examine the

surface further, and also it turns everything that are impressions into hills. It turns valleys into hills so it's

easier for me to shine a light on it and to look at it. Q. And what information did you glean from the use of your

silicon impression -- let me finish. A. Q. I'm sorry. -- to aid you in your analysis about either someone using

scribing or stamps in the making of E683? A. I used the silicon casts to look under and use it under a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

537

microscope to look in the areas that's outside of the groove where there is some horizontal marks that was in my photograph, and I was able to see there was -- were toolmarks there that is made from a -- some kind of hard surface rather than wear and tear. Q. Is there any doubt in your mind that the placing of 683

was done when there was coating on the tube? A. No, there is no doubt in my mind that the impression came

-- that there was a coating on the receiver prior to the impressions being made. Q. Okay. Now, did the silicon gel alter the physical

evidence in any way? A. It -- that's not -- there is a possibility, as I

discussed earlier, that if there is some material in the grooves it may lift it out. doesn't. MR. KUMIEGA: THE COURT: (Brief pause) (By Mr. Kumiega) And Mr. Kong, your expertise then, from Your Honor, may I have just a moment? Yes. Sometimes it does, sometimes it

my understanding, is serial number restoration; is that correct? A. Q. Yes. And this is basically what you, is a subset of what you

do; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Redirect/Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. You didn't conduct any tests or determine how many A. That' right. MR. KUMIEGA: THE COURT: MR. MARTIN: Nothing further.

538

Any further cross, Mr. Martin? Very briefly. RECROSS-EXAMINATION

coatings there might have been on 683, did you, sir? A. Q. I did not. All right, sir. And would it -- just as you told Mr.

Kumiega, you can't say when on 682 and 685, the other two firearms -- they've been coated over, have they not, sir? A. Q. Yes. Okay. They appear to have a coating over the impressions. But we don't know what was under the current

coating? A. Q. A. Q. I do not know. If there's another coating, we don't know? I do not know. Okay. Now, I guess what you're saying from your redirect

examination is that it would have been very helpful to you if the government had trotted in all those Sten tubes for you to examine versus the photographs they provided me; is that right? A. Q. Ask that question again. Mr. Kumiega was making light of, I guess, my exhibits

that I was provided, those pictures, okay? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Uh-huh. And my question is: You're saying it would have been

539

much more helpful to you if somebody that took those pictures and had custody of those had brought them for you to examine? A. If you -- I would prefer to see the physical evidence

rather than to look at the examples and answer your questions. Sure. Q. Okay. All right. And I guess if we want to assume

there's an E out there we can also assume there's some dies that perfectly match this 683 in Erb's possession too, can't we, sir? A. Q. A. The one on this gun? Yes, sir. Well, like I said, there might be a die out there that Again, the die that was used

might match the E that's on here.

to make the E on here may not make the same marks as what was on here now, because the surface could have changed. possibility. Q. A. Q. A. The surface of the die? I'm sorry? The surface of the die. Yes. I didn't mean to interrupt you. That's a

So even so it's the same die that made this

impression, if there's changes, then I cannot say positively that that was the die that made this impression. Q. Is it possible, sir, that, let's say there's four or five B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

Kong - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees sitting around stamping serial numbers into these receivers as quick as they can, that they can be using different size dies? A. Q. It's possible. Okay.

540

Because I showed you some photographs, did I not,

sir, that appear to be different in size than the 682 and the 685, didn't I? A. Q. Yeah. Okay. MR. MARTIN: THE COURT: Nothing further, your Honor. Any further, Mr. Kumiega? No, your Honor. I would say yes.

MR. KUMIEGA: THE COURT:

Mr. Kong, you may be excused. Thank you.

THE WITNESS: THE COURT:

Ladies and gentlemen of the jury, as I

told you, we're going to have to quit a little early today, means you'll probably work a little later Monday or Tuesday. So as you go home for the weekend, again, I just remind you to not talk to anybody or let anybody talk to you about the subject matter of this case. Don't reach any conclusions until

you've heard all the evidence and I've instructed you on the law. And it's supposed to be a beautiful weekend, so go out We'll see you Monday morning at ten o'clock.

and enjoy it. Ten a.m.

All rise while the jury exits. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

541 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The jury exits the courtroom, after which the following was had in open court:) THE COURT: Mr. Martin, based upon all of the

representations presented to the Court and based upon Ms. Walbridge not being called today by the government, the Court is going to deny and overrule the motion to exclude her testimony. It's my understanding that -- will she be

testifying Monday, do you think? MR. KUMIEGA: understanding. THE COURT: MR. KUMIEGA: Tuesday morning, or -At the Court's convenience. And we'll It will be Tuesday, your Honor, my

be ready for a Daubert hearing if the Court determines it's needed. THE COURT: So we'll be continued anyway, her

testimony would not begin until Tuesday sometime, right? MR. KUMIEGA: THE COURT: That's right.

And if we need a Daubert hearing we could

have that Monday at the close of trial day. MR. KUMIEGA: THE COURT: MR. KUMIEGA: available Tuesday. THE COURT: Okay. We can do it early Tuesday morning. She'll be here Monday night, your Honor. Okay. Well, we can do it -She'll be

Tuesday morning, your Honor.

MR. KUMIEGA:

Yes, your Honor.

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

542 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: She'll be coming in Monday night? Yes, sir. So based upon that additional time

MR. KUMIEGA: THE COURT:

Okay.

to review the materials submitted, the Court would overrule the motion to strike her testimony. We'll begin Monday morning at 10 a.m. able to finish this case Thursday? MR. MARTIN: THE COURT: MR. MARTIN: Wednesday night. Wednesday night or Thursday, your Honor. Okay. I understood you had a deadline of Are we going to be

Is that right? Yes. We're going to do everything we can. You

THE COURT: MR. MARTIN:

are pretty much through, aren't you, Ed? MR. KUMIEGA: Yes, sir. I think the last, well, the

last lengthy witnesses will be Mr. Erb, the manufacturer of the machine gun; Ms. Walbridge, depending on how that testimony goes; and I believe, your Honor, there is going to be one unique issue regarding use immunity letter that we're going to have to deal with in chambers before we sponsor Terri Dennis. THE COURT: anticipate? MR. KUMIEGA: I think there's about eight left, your How many other witnesses do you

Honor, but they are going to be rapid, rapid witnesses. THE COURT: Okay. And when do you anticipate Terri

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

543 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. MARTIN: MR. KUMIEGA: THE COURT: Okay. Ed, do you expect Erb Monday? Yes. Dennis or Terri LeMaster -MR. KUMIEGA: THE COURT: That's the new name, your Honor.

It's one and the same person? Yes, sir, your Honor. Yes, sir.

MR. KUMIEGA: THE COURT:

And when do you anticipate calling her? Probably Tuesday. I was going to wrap

MR. KUMIEGA:

up with her and Mr. Donald Ladd. THE COURT: Mr. who? Donald Ladd. So would you know anytime Monday

MR. KUMIEGA: THE COURT:

Okay.

whether there's going to be an issue on that? MR. KUMIEGA: I can advise Mr. Martin and the Court,

your Honor, my proposed series of last witnesses. THE COURT: I mean on -- if there is going to be any

issue with Ms. LeMaster on the immunity issue. MR. KUMIEGA: I think there is going to be, your

Did you say Monday or Tuesday? Erb for Monday, your Honor.

MR. KUMIEGA: THE COURT: MR. MARTIN: ex-employees?

Oh, Erb for Monday. And then a bunch of employees,

B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603

544 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I hereby certify that the aforegoing is a correct transcript from the record of the proceedings in the above-entitled matter. __________________________ B. Jeanne Ring, RDR morning. (Court stood in recess until September 22nd, 2008. further transcription, see Volumes IV through VII of this transcript.) * * * * * REPORTER'S CERTIFICATE For MR. KUMIEGA: THE COURT: employees? MR. KUMIEGA: I was going to start with employees and Yes. You're going to start with

All right.

then go to -- the employees will go rapidly, your Honor. THE COURT: So we can take care of all those witnesses

where they are not sitting around all day. MR. KUMIEGA: THE COURT: Yes, sir.

We'll reconvene at 10 a.m. on Monday

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