Gary Oliveira — Voir Dire/Direct/Cross - Day 50 - 2015 Federal Trial

Family and community witnesses described Sean Collier and Lingzi Lu, while bombing survivors testified about their injuries. The Court addressed victim-impact testimony and photograph objections, and the jury saw a cell-surveillance still followed by defense video clips.

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sidebarsidebarOliveira’s Reports and Video Evidence

(Discussion at sidebar and out of the hearing of the jury:)

MR. WEINREB: Your Honor, the next witness is Deputy Oliveira. He's the one who witnessed the incident where the defendant gave the finger to the camera. He's being called essentially just to authenticate that video. He will testify briefly about his background, that he was on duty that day, that he was monitoring the cameras, that he saw the event in real time, and that the video's a fair and accurate video.

It's our understanding, and we know because we were notified, that there was a -- there was a newspaper report about this picture. I don't think the picture has ever made it into the press but there was a report about it. And the defense sent a letter to the Marshals Service asking them to investigate how the press found out about it.

I'm not aware of the particulars of what they've done to investigate it, but we do know, because he's been asked, that Mr. Oliveira knows nothing about the investigation. He wasn't questioned during it and he didn't even know -- doesn't even know that it exists; therefore, there will be no foundation to question him about it and any such questions will simply serve to confuse and mislead the jury by suggesting that there's some relevance to it when, under the circumstances, particularly given the limited nature of his testimony, there can't be any relevance to it. So we're moving in limine to exclude those questions.

MS. CONRAD: Well, obviously I was not planning on asking him about the investigation.

THE COURT: You were not?

MS. CONRAD: I was not planning on asking about the investigation. I was planning on asking -- as I have asked the general counsel for the U.S. Marshals Service who said he would inquire as to whether Mr. Oliveira has made any statements or provided any statements in the course of that investigation. And I think I'm entitled to those as Jencks. And as I did yesterday, Mr. Weinreb said he's not aware of what they've done.

As I did yesterday, I would like to have made part of the record my correspondence with the Marshals Service which includes the most recent response by General Counsel Auerbach saying that the investigation has been referred to the Office of the Inspector General for the U.S. Department of Justice and is considered open and ongoing.

THE COURT: And why is it germane?

MS. CONRAD: Well, first of all, because I think there might be Jencks.

MS. PELLEGRINI: He didn't rule on it.

MS. CONRAD: Well, that's what he says, but I don't know if there's Jencks. So it's being represented to me he doesn't know about it. I'm just asking -- and I asked Mr. Auerbach, and he said he would inquire, whether Mr. Oliveira made any statements in the course of that investigation. I have not received a response to that. The government, I know, has communicated with Mr. Auerbach several times in the last day or two about related issues.

THE COURT: Well, but any Jencks material would have to relate to the testimony.

MS. CONRAD: Well, I don't know what -- it would probably very well have been, This is what happened, This is what I did. And I don't know what the -- whether the statements are relevant without knowing whether there are statements that exist. It doesn't sound like the government has inquired from the inspector general -- excuse me -- from the general counsel or from the inspector general whether such statements exist. It's their duty. It is the Department of Justice that is conducting this investigation. It is their duty to seek out and provide Jencks, witness statements that are in their possession, custody or control. They are on notice, they've been on notice, Mr. Auerbach is on notice that I've requested these statements.

THE COURT: Okay.

MR. WEINREB: So there were two reports written by Mr. Oliveira documenting what he saw. Those were provided and have been provided, you know --

MS. CONRAD: Yesterday. Yesterday they were provided.

MR. WEINREB: They were provided as soon as we got them. So we made an inquiry, we got the reports, and we handed them over; however, we don't think there's anything there. But if the Court is inclined to investigate this further, we would propose at a minimum that it be done out of the jury's presence, kind of voir dire. The defense can ask him whether he made any other statements other than the ones in the report, and if he says no, then they have their answer.

MS. CONRAD: Well, I still think that there should be an inquiry made to the inspector general -- to the general counsel because that's the one that told me that they would have the reports.

THE COURT: Well, no. I think -- if you want, we'll let you ask the witness about any reports he made and take it from there.

MS. CONRAD: Can I raise another issue while we're up here? I -- I guess I'll leave it at that. But I would like to do that.

THE COURT: Okay. So we'll excuse the jury now and then we won't have to interrupt his testimony, we'll just do it all at once. We'll come to a point and then excuse them.

MS. CLARKE: My understanding is the exhibit is a photograph of the video. Is the government intending to put in the video or the photograph?

MS. PELLEGRINI: Just the photograph.

MS. CLARKE: I'd been confused by Mr. Weinreb's --

THE COURT: Do you intend to play the video?

MS. CONRAD: I do. I plan to play several portions of the video.

THE COURT: Several portions? It's only -- what did we say yesterday, 30 seconds?

MS. CONRAD: There are several relevant portions to the video.

THE COURT: All right. Okay.

ProceduralProc.Jury Excused for Oliveira's Witness Voir Dire

(In open court:)

THE COURT: Jurors, we have to do something without you for a minute. We're going to excuse you and have you back as soon as we can have you back.

COURT CLERK: All rise for the jury.

(The jury exits the courtroom at 12:11 p.m.)

THE COURT: All right. Could we have the witness?

Voir DireVoir DireGary Oliveira - Witness Voir Dire on Incident Reports

GARY OLIVEIRA, duly sworn

COURT CLERK: Have a seat. State your name and spell your last name for the record, if you would, please.

GARY OLIVEIRA: Gary Oliveira, O-L-I-V-E-I-R-A.

THE COURT: I don't know if the witness knows the arrangement, but this is a brief voir dire before we have your testimony at the request of the defense.

GARY OLIVEIRA: Yes, your Honor.

VOIR DIRE EXAMINATION BY MS. CONRAD:

MS. CONRAD: Good morning, Mr. Oliveira.

GARY OLIVEIRA: Good morning.

MS. CONRAD: I just have a few questions for you about any reports or statements you might have given that I just want to clear up before the jury's brought back in.

GARY OLIVEIRA: Yes, ma'am.

MS. CONRAD: You know that you're here to testify about something that occurred in the cell block on July 10th of 2013, correct?

GARY OLIVEIRA: Yes, ma'am.

MS. CONRAD: And what, if any, reports did you write about that?

GARY OLIVEIRA: I wrote one report about the incident I saw.

MS. CONRAD: And that report was dated July 12th?

GARY OLIVEIRA: I believe. It was either the same day or the day after.

MS. CONRAD: If I can just show the witness.

MS. CONRAD: Can I just show you this document? Do you recognize that?

GARY OLIVEIRA: Yes, ma'am.

MS. CONRAD: Is that the report you wrote?

GARY OLIVEIRA: Yes, ma'am.

MS. CONRAD: And just focusing in on the date on that, is that July 12th, 2013? Down at the bottom.

GARY OLIVEIRA: Oh, yes, ma'am. That's the day it was submitted.

MS. CONRAD: But the incident occurred on July 10th, right?

GARY OLIVEIRA: Correct.

MS. CONRAD: And is that your usual practice, to write an incident report?

MS. PELLEGRINI: Objection.

THE COURT: You may answer that.

GARY OLIVEIRA: Pertaining to -- I've written many incident reports but --

BY MS. CONRAD:

MS. CONRAD: But about an incident of this nature?

MS. PELLEGRINI: Objection.

THE COURT: Overruled.

You may answer it.

GARY OLIVEIRA: Yes. I mean, if something happens in the cell block worth notice, yes, I write a report.

BY MS. CONRAD:

MS. CONRAD: Somebody flipping a bird, you write a report?

GARY OLIVEIRA: Well, yeah.

MS. CONRAD: You've done that for other defendants as well as Mr. Tsarnaev?

MS. PELLEGRINI: Objection.

THE COURT: I think we've gone beyond the scope of the purpose of the voir dire.

MS. CONRAD: Okay.

BY MS. CONRAD:

MS. CONRAD: And would you usually write the report the same day?

GARY OLIVEIRA: Yeah.

MS. CONRAD: And do you know you didn't write this report -- well, can you tell us why you didn't write this report until two days later?

GARY OLIVEIRA: I was notified to do it.

MS. CONRAD: By whom?

GARY OLIVEIRA: Upper management. Or somebody above me told me we should write a report.

MS. CONRAD: So at the time you didn't think it was important enough to write a report about --

MS. PELLEGRINI: Objection.

THE COURT: Sustained.

BY MS. CONRAD:

MS. CONRAD: Did you write any other reports?

GARY OLIVEIRA: No, ma'am.

MS. CONRAD: Is there a log that is kept in the marshal's office of incidents that occur during the course of a day in a cell block?

GARY OLIVEIRA: I don't understand your question.

MS. CONRAD: I'm just wondering if there's some kind of logbook where -- you know, presumably you're watching the cameras, right?

GARY OLIVEIRA: No.

MS. CONRAD: So why don't you explain it to me.

GARY OLIVEIRA: There's no logbook.

MS. CONRAD: Okay. But you are watching the cameras, right?

GARY OLIVEIRA: Yes, ma'am.

MS. CONRAD: And are you aware that there was an investigation within the Marshals Service and later referred to the Office of the Inspector General about a release of information about this particular video?

GARY OLIVEIRA: I wasn't aware of it till yesterday, somebody mentioned it to me.

MS. CONRAD: So you were never asked to provide a statement to either internal affairs or the Office of the Inspector General?

GARY OLIVEIRA: No, ma'am.

MS. CONRAD: Were you aware that this incident was described in a newspaper article in December of 2013?

100

MS. PELLEGRINI: Objection.

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THE COURT: Sustained. I think we've covered the ground we intended to cover.

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MS. CONRAD: Okay. Thank you.

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THE COURT: All right. We'll call the jury back in.

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(Pause.)

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COURT CLERK: All rise for the jury.

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(The jury enters the courtroom at 12:18 p.m.)

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COURT CLERK: Be seated.

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THE COURT: Jurors, the witness on the stand has been sworn prior to your return to the room. He's under oath.

DirectDirectGary Oliveira - Direct Examination

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DIRECT EXAMINATION BY MS. PELLEGRINI:

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MS. PELLEGRINI: For the record again, in the presence of the jury, would you give your name, please?

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GARY OLIVEIRA: Gary Oliveira.

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MS. PELLEGRINI: And, Mr. Oliveira, will you tell the jury by whom you're employed?

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GARY OLIVEIRA: The United States Marshals Service.

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MS. PELLEGRINI: And in what capacity?

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GARY OLIVEIRA: Deputy U.S. marshal.

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MS. PELLEGRINI: And how long have you held that position?

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GARY OLIVEIRA: Fourteen years.

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MS. PELLEGRINI: And briefly, can you describe the duties of a deputy United States marshal?

119

GARY OLIVEIRA: All aspects of the court security, the federal building security, prisoner transport, fugitive apprehensions.

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MS. PELLEGRINI: And I'd like to direct your attention specifically to the date of the defendant's arraignment on July the 10th of 2013. Were you working in this courthouse on that day?

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GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: And what were your duties on that day?

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GARY OLIVEIRA: I was the deputy in charge of the court operations unit.

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MS. PELLEGRINI: And what does that mean?

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GARY OLIVEIRA: Basically I would sit -- there's an operations desk that overlooks our squad room, monitor cameras that are there in front of you, daily deal with the clerks -- daily court operations itself, really, anything to do with the courts for the day.

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MS. PELLEGRINI: And what's the ops desk?

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GARY OLIVEIRA: Operations desk is where normally the deputy in charge will sit where it's just -- it's the center point where all the phone calls come in. Anything that goes through will go through the operations desk. It's one main desk in the squad room.

128

MS. PELLEGRINI: And with respect to being seated in that area, do you also have access to cameras to other areas in the courthouse?

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GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: So specifically with respect to people who are detained or in your custody, what is the setup with the cameras?

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GARY OLIVEIRA: There's -- right in your direct line there's three cameras -- three monitors -- excuse me -- three screens that have multiple views of different angles of cells, the corridors and the cell block area, and then there's one standalone, and that could be -- you could put any camera -- the three are set cameras that are always on. The standalone one is -- you can change it to whatever you like, whatever particular camera.

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MS. PELLEGRINI: And with respect to the defendant, were you able to view the defendant in a cell block room on July the 10th of 2013?

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GARY OLIVEIRA: Yes, I did.

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MS. PELLEGRINI: And do you recall as you sit here now without anything in front of you what cell that was?

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GARY OLIVEIRA: Cell 4.

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MS. PELLEGRINI: And at approximately 11:20 or '23 in the morning on July the 10th, were you still in that position and able to view the camera into that cell block?

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GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: All right.

139

MS. PELLEGRINI: I'd like for the witness, your Honor, and counsel only, Exhibit, marked for identification, 1595.

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MS. PELLEGRINI: Deputy Oliveira, with respect to the image on the screen in front of you, do you recognize that image?

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GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: And how is it that you recognize this particular image?

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GARY OLIVEIRA: I physically saw it happen that day monitoring the cameras.

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MS. PELLEGRINI: Now, this image is, in fact, an image from a longer video. Is that correct?

145

GARY OLIVEIRA: Correct.

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MS. PELLEGRINI: And this is being captured by a video camera within the cell?

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GARY OLIVEIRA: Correct.

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MS. PELLEGRINI: But when this incident occurred at 11:23:19, you were actually watching the monitor?

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GARY OLIVEIRA: Yes, ma'am.

150

MS. PELLEGRINI: And does this fairly and accurately represent what you saw on July the 10th of 2013 in Dzhokhar Tsarnaev's cell?

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GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: Your Honor, the government would offer Exhibit 1595.

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MS. CONRAD: Objection for the reasons previously stated, and in addition, we would ask that the video, and not the still, be shown.

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THE COURT: Well, either the government or you can show it, but I'll admit the photograph.

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(Government Exhibit No. 1595 received into evidence.)

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MS. PELLEGRINI: May it be published, your Honor.

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BY MS. PELLEGRINI:

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MS. PELLEGRINI: Detective Oliveira, with respect to the photograph 1595 now in evidence, there is a notation on the top of the photograph toward the right-hand side, correct?

159

GARY OLIVEIRA: Yes, ma'am.

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MS. PELLEGRINI: And what is that?

161

GARY OLIVEIRA: The date and timestamp.

162

MS. PELLEGRINI: All right. And have you had occasion to determine whether or not the date and the timestamp are accurate on the video cameras that are located in the cells?

163

GARY OLIVEIRA: Yes.

164

MS. PELLEGRINI: And, in fact, they record in real time, correct?

165

GARY OLIVEIRA: Correct.

166

MS. PELLEGRINI: And with respect to the notation on the bottom left of the image, what is that?

167

GARY OLIVEIRA: The 061 gives you the camera number, "cell" stands for the cell, and 4 is for the cell he's actually in.

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MS. PELLEGRINI: May I have just a moment, your Honor.

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(Counsel confer off the record.)

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BY MS. PELLEGRINI:

171

MS. PELLEGRINI: Detective Oliveira, are you aware of whether or not this was the first day that Dzhokhar Tsarnaev was in the Moakley courthouse?

172

GARY OLIVEIRA: Yes, it was.

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MS. PELLEGRINI: Thank you. I have no further questions.

CrossCrossGary Oliveira - Cross-Examination

174

CROSS-EXAMINATION BY MS. CONRAD:

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MS. CONRAD: Good afternoon, Deputy Oliveira.

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GARY OLIVEIRA: Good afternoon.

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MS. CONRAD: Do you remember what time Mr. Tsarnaev arrived that day?

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GARY OLIVEIRA: No, I don't.

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MS. CONRAD: Is there anything that would refresh your recollection?

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GARY OLIVEIRA: I would have no -- there's a cell block log --

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MS. CONRAD: Yes.

182

GARY OLIVEIRA: -- that would tell you what time the prisoners arrived into the cell block.

183

MS. CONRAD: Yes.

184

GARY OLIVEIRA: Not something that I would have done but something that is done.

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MS. CONRAD: Okay. I'm just asking. If I can just have a moment and show it to you, and let's see if that refreshes your recollection. My binder is not cooperating.

186

MS. CONRAD: And this is just for the witness, please, your Honor.

187

MS. CONRAD: Just asking you to take a look at the last line on that document, does that refresh your recollection as to what time he arrived?

188

GARY OLIVEIRA: Yes, ma'am.

189

MS. CONRAD: Yes?

190

GARY OLIVEIRA: Yes.

191

MS. CONRAD: And what time was that?

192

GARY OLIVEIRA: 11:10.

193

MS. CONRAD: Thank you. And when he was placed into a cell at that time, did you observe that?

194

GARY OLIVEIRA: I don't recall. I wasn't in the cell block.

195

MS. CONRAD: But that would be captured also on the video camera?

196

GARY OLIVEIRA: The camera's constantly monitoring, yes.

197

MS. CONRAD: Okay. So at this time I would like to play the 11:10 clip, please, Ms. Sarr.

198

THE COURT: Is it on the cart or Table 3?

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MS. CONRAD: It's the cart. The first one.

200

MS. PELLEGRINI: I don't believe this is in evidence.

201

THE COURT: It isn't in evidence.

202

MS. CONRAD: I'm sorry? I'm about to offer it. But is there an objection? I can have it just for the witness.

203

MS. PELLEGRINI: My objection is it's not in evidence.

204

MS. CONRAD: Okay. Well, I'll show it, then, just to the witness and then I'll offer it.

205

THE COURT: This is displayed only to the witness.

206

BY MS. CONRAD:

207

MS. CONRAD: So do you recognize what that depicts?

208

GARY OLIVEIRA: Yes, ma'am.

209

MS. CONRAD: And is that the cell block -- Cell 4 on July 10th at 11:08 a.m.?

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GARY OLIVEIRA: According to this timestamp, yes.

211

MS. CONRAD: I would offer this.

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MS. PELLEGRINI: Relevance? Objection, your Honor.

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THE COURT: How long does it run?

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MS. CONRAD: Two minutes.

215

THE COURT: I'm sorry?

216

MS. CONRAD: Two minutes.

217

THE COURT: Let me see you. Let me see you at the side.

sidebarsidebarDefense Video Clips Offered for Context

218

(Discussion at sidebar and out of the hearing of the jury:)

219

THE COURT: I'm not sure what this is relevant to.

220

MS. CONRAD: I'll tell you two things it's relevant to. One thing, it shows Mr. Tsarnaev standing completely passively and compliantly while the chains are removed from him and then it shows him looking into the camera and using it as a reflection as he fixes his hair.

221

MS. PELLEGRINI: So?

222

MS. CONRAD: Excuse me?

It shows that he is, first of all, viewing this not as a camera, but as a mirror, a reflection.

223

THE COURT: And you have others of similar --

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MS. CONRAD: Then I'm going to show the clip of the -- that the still is.

225

THE COURT: That I saw the other day?

226

MS. CONRAD: Yes.

227

THE COURT: And then?

228

MS. CONRAD: And then there's another clip that it appears that marshals come and speak to him about what just transpired because he walks over to the screen. And I'm going to ask if someone spoke to him. And then he walks back and sits down, completely compliantly.

The government has just made this the centerpiece for the argument that this is a message.

229

THE COURT: All right. You can use it. It provides the context.

230

MS. CONRAD: Thank you.

CrossCrossGary Oliveira - Cross-Examination

231

(In open court:)

232

MS. CONRAD: So I'm not sure what our next exhibit number is. I apologize. Can we say 3700 just to start someplace? I don't think that's used yet.

233

THE COURT: That's fine. If you're confident that's well above where...

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MS. CONRAD: One moment.

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(Counsel confer off the record.)

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THE COURT: You know, we're in a separate phase so it doesn't necessarily have to pick up. So if you're confident -- if you want to pick a number that you're confident is well above the numbering, 4000, for example.

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MS. CONRAD: 4000. Thank you. So we'd now offer this, your Honor, as exhibit whatever the number we just agreed on was, 4000.

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THE COURT: I will admit it, and I think to distinguish -- you're going to offer --

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MS. CONRAD: Three clips.

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THE COURT: -- more than one?

241

MS. CONRAD: Yes.

242

THE COURT: Let's identify it by its start time just for the record. So it's started at 11:08:17.

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MS. CONRAD: Yes, thank you.

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THE COURT: That's admitted --

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(Defense Exhibit No. 4000 received into evidence.)

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MS. CONRAD: As Exhibit 4000?

247

THE COURT: -- as Exhibit 4000. And that will be displayed to the jury.

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MS. CONRAD: Thank you.

249

(Video recording played.)

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BY MS. CONRAD:

251

MS. CONRAD: So, Deputy Oliveira, I don't know if the jury can see this yet, what are we viewing here?

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GARY OLIVEIRA: That's an empty cell, Cell 4.

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MS. CONRAD: And that's the cell where Mr. Tsarnaev was held?

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GARY OLIVEIRA: Correct.

255

MS. CONRAD: And if you would just bear with me for a second here. What's that over to the right, the screen we see on the bottom right corner? Right here in the bottom of the screen.

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GARY OLIVEIRA: Oh, that's the partition wall.

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MS. CONRAD: Okay. And what did we just see happen right there?

258

GARY OLIVEIRA: The cell door either was opened or somebody opened it and he walked in.

259

MS. CONRAD: And that's Mr. Tsarnaev in the orange?

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GARY OLIVEIRA: I'm assuming. I can't see his face from here.

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MS. CONRAD: Okay. Can we resume playing the tape?

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(Video recording played.)

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MS. CONRAD: And what's happening now?

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GARY OLIVEIRA: He's being unrestrained.

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MS. CONRAD: And he is, as you can see in this video, compliant?

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MS. PELLEGRINI: Objection.

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THE COURT: Sustained.

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BY MS. CONRAD:

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MS. CONRAD: Did you observe this happening?

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GARY OLIVEIRA: I don't recall.

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MS. CONRAD: As far as you know, he did not resist in any way?

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MS. PELLEGRINI: Objection.

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THE COURT: Well, the film speaks for itself.

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MS. CONRAD: Now, if you can just pause again, please, Ms. Sarr. Wait. Let's go back. I think we skipped something. That's good. Probably right about there.

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(Video recording played.)

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BY MS. CONRAD:

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MS. CONRAD: So there was a chain around his waist that's being removed?

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GARY OLIVEIRA: I'm assuming that's typical trans- -- how we transport prisoners. I actually never see the chain move, so. Yes, there it is.

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MS. CONRAD: Right? And that was about 11:09? And when you see Mr. Tsarnaev walk -- step away, I just want to ask you to look at his left hand. Do you see what's on his left hand?

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GARY OLIVEIRA: Yes, ma'am.

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MS. CONRAD: What was it?

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GARY OLIVEIRA: Some form of brace.

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MS. CONRAD: And do you know that, in fact, he had been injured?

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GARY OLIVEIRA: Yes.

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MS. CONRAD: And so what's in that cell besides the bench that he's sitting on?

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GARY OLIVEIRA: He's headed right towards -- there's a toilet and a sink, it's all one unit, right where he's at right now.

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MS. CONRAD: And there's really nothing else in that cell, right?

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GARY OLIVEIRA: No, ma'am. Air vents. You have air vents that's...

289

MS. CONRAD: And do you know what time his arraignment was scheduled for that day?

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GARY OLIVEIRA: I don't recall. I want to say 3:30.

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MS. CONRAD: Okay. Stop right there.

292

MS. CONRAD: Now, it seems like he's looking up into the camera at that point. Did you see that?

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GARY OLIVEIRA: Right now he's not, no.

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MS. CONRAD: Okay.

295

MS. CONRAD: Well, just keep going.

296

(Video recording played.)

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MS. CONRAD: Right now he's looking up in the camera?

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GARY OLIVEIRA: Correct.

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MS. CONRAD: And does that camera have a reflective surface?

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GARY OLIVEIRA: It's not an actual -- the camera's inside a case, so there is glass of some form across it. To be honest with you, I don't remember if it's tinted or clear or not, so I'm not sure.

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MS. CONRAD: But it appears that he is using that reflection as a mirror?

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MS. PELLEGRINI: Objection.

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THE COURT: It speaks for itself.

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GARY OLIVEIRA: I'm sorry. I didn't hear you.

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THE COURT: The objection is sustained. The film speaks for itself.

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BY MS. CONRAD:

307

MS. CONRAD: But there is a reflective surface over the camera surface, correct?

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GARY OLIVEIRA: Yes.

309

MS. CONRAD: So someone in that cell who looks up at the camera would see a reflection of themself?

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GARY OLIVEIRA: I would assume. I've never really done it myself.

311

MS. CONRAD: But have you seen people engage in similar behavior in the cellblock using the camera surface or the box encasing the surface as a reflection?

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MS. PELLEGRINI: Objection.

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THE COURT: Overruled.

You may answer that.

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GARY OLIVEIRA: I've seen people looking into the camera, yes.

315

BY MS. CONRAD:

316

MS. CONRAD: Looking into it as if they're looking at their own reflection?

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GARY OLIVEIRA: I can't say that I've seen that. A lot of times people do that to get our attention.

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MS. CONRAD: Well, what did that look like to you when you observed it on that day?

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MS. PELLEGRINI: Objection.

320

THE COURT: Sustained.

321

BY MS. CONRAD:

322

MS. CONRAD: Now, you said he had an injury to his hand, right?

323

GARY OLIVEIRA: I don't know if it was his hand or his wrist. I know he had a brace on it.

324

MS. CONRAD: And did you know that he also had an injury to his face?

325

GARY OLIVEIRA: Yes.

326

MS. CONRAD: And did you know, in fact, he had been shot in the face?

327

GARY OLIVEIRA: I don't know if he had been -- that he was shot in the face, no. I know that he had injuries to the face.

328

MS. CONRAD: And do you know that those injuries affected the left side of his face?

329

MS. PELLEGRINI: Objection.

330

THE COURT: Sustained.

331

BY MS. CONRAD:

332

MS. CONRAD: Well, you observed him that day, correct?

333

GARY OLIVEIRA: No closer than I am here with the camera -- with the monitor. I was not in the cell block.

334

MS. CONRAD: But you also were aware that when he was first arrested, when he was first in the marshals' custody, he was not in a detention facility; he was in a hospital?

335

MS. PELLEGRINI: Objection.

336

THE COURT: Sustained. Let's stay to the point of the direct.

337

MS. CONRAD: Well, your Honor, may we be heard at sidebar?

338

THE COURT: No, I think that was a fairly clear ruling.

339

MS. CONRAD: Well, as far as the reason why I would like to elicit that and why it's relevant to the --

340

THE COURT: No. Continue, please.

341

MS. CONRAD: Can we play the second clip.

342

THE COURT: For the record, it's 11:23:09?

343

MS. CONRAD: Yes.

344

THE COURT: I've indicated that all three can be admitted. So this is a new number?

345

MS. CONRAD: This would be 4001.

346

THE COURT: 4001 at 11:23 --

347

(Defense Exhibit No. 4001 received into evidence.)

348

BY MS. CONRAD:

349

MS. CONRAD: Now, just drawing your attention to the time at the top, this is 11:23:09?

350

GARY OLIVEIRA: I see it.

351

MS. CONRAD: And so that's shortly before the still photograph that Ms. Pellegrini showed you?

352

GARY OLIVEIRA: Correct.

353

MS. CONRAD: And by the way, when the -- the photo that she showed you, the still that she showed you, that's not how you saw this at the time that it occurred, right? You didn't see it as a still?

354

GARY OLIVEIRA: No, ma'am.

355

MS. CONRAD: You saw it the way we're seeing it now, as a video?

356

GARY OLIVEIRA: Correct. Live.

357

MS. CONRAD: Okay. Can we just continue to play that, please?

358

(Video recording played.)

359

MS. CONRAD: So that was the exact sequence of what you saw, right?

360

GARY OLIVEIRA: Correct.

361

MS. CONRAD: And that was Mr. Tsarnaev getting up on the bench, right?

362

GARY OLIVEIRA: Correct.

363

MS. CONRAD: Peering toward the camera, right?

364

GARY OLIVEIRA: Correct.

365

MS. CONRAD: Arranging his hair?

366

MS. PELLEGRINI: Objection, your Honor. The video, again, speaks for itself.

367

THE COURT: It speaks for itself.

368

BY MS. CONRAD:

369

MS. CONRAD: And before the still that you -- before the image that Ms. Pellegrini introduced as Exhibit 1595, you saw Mr. Tsarnaev make a two-finger gesture, correct?

370

GARY OLIVEIRA: Correct.

371

MS. CONRAD: A V sign?

372

MS. PELLEGRINI: Objection again.

373

THE COURT: Speaks for itself.

374

BY MS. CONRAD:

375

MS. CONRAD: Well, do you know when he did that what he was -- strike that. Had anything occurred right before this that he was reacting to?

376

MS. PELLEGRINI: Objection. That was --

377

THE COURT: You may answer whether anything that was not shown on the video had occurred before the video clip.

378

GARY OLIVEIRA: Not that I know of.

379

BY MS. CONRAD:

380

MS. CONRAD: Well, during the time that you were observing the video monitors from the time of his arrival to the time that you made that observation at 11:23, did anything occur to which he seemed to be responding?

381

MS. PELLEGRINI: Objection.

382

THE COURT: If you recall you may answer it.

383

GARY OLIVEIRA: I don't recall.

384

BY MS. CONRAD:

385

MS. CONRAD: He was in that cell alone during that entire time, right?

386

GARY OLIVEIRA: The cell but not the -- there could have been people on other sides. It's not the only cell -- right there is not the only cell in that corridor.

387

MS. CONRAD: Are you aware of anything that occurred --

388

GARY OLIVEIRA: No.

389

MS. CONRAD: -- that he was responding to?

390

GARY OLIVEIRA: No.

391

MS. CONRAD: Are you aware of why he made a V sign?

392

GARY OLIVEIRA: No.