10.Jury Instructions — Evaluating FBI 302 Interview Reports

THE COURT: Okay. I guess that's it. Let me just say a little more to the jury about this. You've effectively had testimony from witnesses without the witnesses being here. You'll recall in the prior phase of the case I told you we would be following rules of evidence and you'd see me applying them. The rules of evidence are more relaxed by law for this proceeding, and there's so great a flexibility, so that when witnesses are for one reason or another unable to be here, we can make some substitutions for the testimony.

But you should keep some things in mind about this process. The 302 reports are, as you've heard, by their nature a summary of what the interviewed person has said to the agents. They're not necessarily verbatim transcriptions of the conversation, but summaries, and they may be made from the agents' notes and then put together in a report either that day or perhaps the next day.

The agents do not independently check or verify the substance of the interviewees' statements, they simply record them. It is a federal crime to impede a federal law enforcement investigation by giving false information, but a witness interviewed under these circumstances is not placed under oath, as a witness in the courtroom would be.

Perhaps importantly from your perspective, unlike a witness who testifies here in the courtroom, you're not able to observe the person giving the information to the extent your observations might help you assess the reliability of the evidence. And that's a difference you might think about as you evaluate this evidence. And also unlike testimony at trial, a statement given elsewhere and recorded by the FBI in these reports is not subject to cross-examination by any party to fill in or clarify matters; it's simply accepted at face. So you may take all of those things into account in deciding the reliability of the evidence as you evaluate it with all of the other evidence in the case at the time when you do that.

A reason why we would substitute this kind of evidence for live testimony here in the courtroom is principally because the witness for one reason or another is unable to be present to do that. With respect to the first three 302s of Mr. Dolakov, Mr. Dolakov is simply not available to be brought here. With respect to Mr. Vakhabov, whose name, by the way I don't think was spelled for you, so the second witness was V-I-S-K-H-A-N, first name, V-I-S-K-H-A-N, V-A-K-H-A-B-O-V. V-A-K-H-A-B-O-V.

Mr. Vakhabov indicated that if he were brought here, he would invoke his Fifth Amendment privilege not to testify as to matters that might incriminate him. And that made him unavailable for testimony here because that invocation would be respected. It did not prevent his statement from being read.