5.Michelle Nicolet — Direct/Cross/Redirect
220 linesMICHELLE NICOLET, duly sworn
COURT CLERK: State your name, spell your last name for the record, keep your voice up and speak into the mic.
MICHELLE NICOLET: Michelle Nicolet, M-I-C-H-E-L-L-E N-I-C-O-L-E-T.
DIRECT EXAMINATION BY MR. MELLIN:
MR. MELLIN: Good morning.
MICHELLE NICOLET: Good morning.
MR. MELLIN: Where are you employed?
MICHELLE NICOLET: At the Federal Bureau of Investigation.
MR. MELLIN: And how long have you been with the FBI?
MICHELLE NICOLET: For approximately ten years.
MR. MELLIN: If you could do me a favor and maybe sit just a little closer to that?
MICHELLE NICOLET: Sure.
MR. MELLIN: Thank you very much. If we could quickly go through your background. Did you go to college?
MICHELLE NICOLET: I did.
MR. MELLIN: Where did you go to college?
MICHELLE NICOLET: Harding University.
MR. MELLIN: Did you play sports there?
MICHELLE NICOLET: I did.
MR. MELLIN: What did you play?
MICHELLE NICOLET: Basketball.
MR. MELLIN: All right. If you can try to keep your voice up a little bit?
THE COURT: The microphone is also adjustable. It moves up and down as you need to adjust it.
MICHELLE NICOLET: Thank you.
BY MR. MELLIN:
MR. MELLIN: Agent, after you graduated from college, did you go to law school?
MICHELLE NICOLET: I did.
MR. MELLIN: Where did you go to law school?
MICHELLE NICOLET: University of Virginia School of Law.
MR. MELLIN: And after going to the University of Virginia, what did you do?
MICHELLE NICOLET: I worked as an attorney in Manhattan for two years.
MR. MELLIN: Following that, did you join the FBI?
MICHELLE NICOLET: I did.
MR. MELLIN: In what year was that?
MICHELLE NICOLET: 2005.
MR. MELLIN: After joining the FBI and going through Quantico, where did you go?
MICHELLE NICOLET: I did about a two-month TDY in Washington, D.C., and then I went to the New York field office.
MR. MELLIN: And in New York, what types of cases did you work on?
MICHELLE NICOLET: I worked counterterrorism investigations.
MR. MELLIN: At some point did you end up in Washington, D.C.?
MICHELLE NICOLET: I did.
MR. MELLIN: When did you end up in D.C.?
MICHELLE NICOLET: April 2012.
MR. MELLIN: And what were you doing in Washington?
MICHELLE NICOLET: Initially I was working at our Military Commissions prosecution unit as a supervisory special agent.
MR. MELLIN: And what is a supervisory special agent?
MICHELLE NICOLET: It's essentially a supervisor-level special agent overseeing other FBI employees.
MR. MELLIN: And at some point did you get involved in the SAMs program?
MICHELLE NICOLET: I did.
MR. MELLIN: When did you get involved in that?
MICHELLE NICOLET: April 2014.
MR. MELLIN: And exactly what is your position and how is it related to the SAMs program?
MICHELLE NICOLET: I am the unit chief of the National Joint Terrorism Task Force. That's a unit that falls within the counterterrorism division of the FBI. And we oversee a number of counterterrorism-related initiatives and programs, including the FBI's involvement in the renewal and monitoring of SAMs terrorism inmates.
MR. MELLIN: And when you say you're the unit chief, what is a unit chief?
MICHELLE NICOLET: I oversee approximately 50 FBI and interagency personnel from approximately 40 different agencies.
MR. MELLIN: Just to be clear, did you meet with Mark Bezy last week?
MICHELLE NICOLET: I did.
MR. MELLIN: Okay. Were there others in that meeting as well?
MICHELLE NICOLET: There were.
MR. MELLIN: Okay. The SAMs program that we've been talking about, does that require a yearly review?
MICHELLE NICOLET: It does.
MR. MELLIN: And can you just briefly describe how that review process works?
MICHELLE NICOLET: Sure. So initially within the NJ -- we call it NJTTF. That's the acronym for the unit I work in. So we will solicit recommendations from the appropriate FBI field offices. We will then compile those and make our own recommendation on behalf of the FBI to the appropriate U.S. Attorney's office, which in this case would be Boston. And once we provide our recommendation to the U.S. Attorney's office, they will in turn provide their recommendation to DOJ's Office of Enforcement Operations. And then once they receive that, then they will make a formal decision and provide a memorandum to the director of the Bureau of Prisons for either the -- for the renewal of the SAMs if appropriate.
MR. MELLIN: And the process we're talking about, is that -- does that involve a number of telephone conversations or meetings?
MICHELLE NICOLET: It does. There are informal discussions throughout the renewal period prior to the actual formal paperwork.
MR. MELLIN: If a SAMs is not renewed, what happens to it?
MICHELLE NICOLET: It will lapse on the date of the -- at the annual expiration.
MR. MELLIN: Okay. And if the federal regulations that are involved are not satisfied, what happens to the SAMs?
MICHELLE NICOLET: We take a fresh look at it every year, and if it does not rise to the level of warranting continuance, then we will allow it to lapse at the appropriate time.
MR. MELLIN: Are you aware that prisoners have filed litigation regarding modifying SAMs?
MICHELLE NICOLET: I am.
MR. MELLIN: Has that litigation resulted in modifications to SAMs?
MR. WATKINS: Objection.
MICHELLE NICOLET: Yes, in instances --
THE COURT: No, the objection is overruled. The answer may stand.
MICHELLE NICOLET: Yes, it has in certain instances.
BY MR. MELLIN:
MR. MELLIN: And are you aware whether the SAMs in this case has been modified?
MICHELLE NICOLET: It has.
MR. WATKINS: Objection.
THE COURT: Sustained to that.
The answer is stricken. The jury will disregard it.
BY MR. MELLIN:
MR. MELLIN: As you sit here in 2015, is there any way to predict how long a SAMs will be on a particular inmate?
MICHELLE NICOLET: No, not at all.
MR. MELLIN: And in spite of the existence of these special administrative measures, at times have there been violations of those measures?
MR. WATKINS: Objection.
THE COURT: You may answer that question.
MICHELLE NICOLET: There have been.
BY MR. MELLIN:
MR. MELLIN: Do you have an approximate number of violations that the FBI's aware of?
MR. WATKINS: Objection.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: Do inmates come off of SAMs every year?
MICHELLE NICOLET: There's no guarantee, but generally, yes.
MR. MELLIN: And since March of 2014 have inmates at ADX convicted of terrorism charges come off of SAMs?
MICHELLE NICOLET: Yes, they have.
MR. WATKINS: Objection.
THE COURT: The answer may stand. The objection is overruled.
MR. MELLIN: Thank you.
Thank you, your Honor. That's all.
THE COURT: That's all?
MR. MELLIN: That's all.
THE COURT: Mr. Watkins?
CROSS-EXAMINATION BY MR. WATKINS:
MR. WATKINS: Good morning, Ms. Nicolet.
MICHELLE NICOLET: Good morning.
MR. WATKINS: You talked about the annual renewal period that you begin to look at whether SAMs will be renewed. In addition to that renewal period, you keep constant watch on people that are under SAMs. Is that correct?
MICHELLE NICOLET: What do you mean by "constant watch"?
MR. WATKINS: Well, you would talk about -- if any issues came up, if the name came up in some way, you would monitor that. You don't just wait till the end of the year?
MICHELLE NICOLET: We're in regular coordination with BOP throughout the year, yes.
MR. WATKINS: So Bureau of Prisons gives you input, also the U.S. Attorney here in Boston gives you input, the local FBI office gives you input throughout the year. They're not limited to those three months before the renewal. Is that correct?
MICHELLE NICOLET: That's correct.
MR. WATKINS: And one of the things that you always consider with SAMs inmates is ongoing relevance?
MICHELLE NICOLET: Yes, that's one of the many things we consider.
MR. WATKINS: Ongoing relevance can include, for example, broad publicity, the nature of the case?
MICHELLE NICOLET: It can, yes.
MR. WATKINS: And the actual offense that was committed. That's ongoing relevance, right?
MICHELLE NICOLET: Yes.
MR. WATKINS: And how that offense is perceived around the world or around the country, you would take that into account in whether you're going to renew the SAMs, right?
MICHELLE NICOLET: We would, yes.
MR. WATKINS: The Bureau of Prisons, do they have a seat at the table when you decide whether to renew the SAMs?
MICHELLE NICOLET: Well, there's not an actual table, but we -- they are not officially involved in the renewal process, but we will have discussions with them.
MR. WATKINS: You will have discussions -- well, you'll learn of their input through the local FBI agent in Colorado in the case of ADX, right?
MICHELLE NICOLET: That's correct, yes.
MR. WATKINS: So BOP does not contact you directly and say, Hey, why don't you give us these SAMs?
MICHELLE NICOLET: I've been involved directly in conversations with BOP about various SAMs, but generally it does come through our local field office.
MR. WATKINS: And SAMs -- there are some SAMs that have been in effect since 2002, which was when the regulation was passed, right?
MICHELLE NICOLET: The regulation I believe was passed in the mid '90s, but there have been individuals who have been on SAMs since 2002, yes, yes.
MR. WATKINS: And that is when the SAMs -- well, 2002, and have been on SAMs constantly. Every year they've been renewed?
MICHELLE NICOLET: Correct.
MR. WATKINS: And even in the case of someone where you -- DOJ elected to let the SAMs lapse, they can be reimposed if something happens again, correct?
MICHELLE NICOLET: Correct.
MR. WATKINS: You talked about modifications that have been made to SAMs over the years. One aspect of a SAMs is whether an inmate can have physical contact with another inmate?
MICHELLE NICOLET: Yes.
MR. WATKINS: And that is in effect for Mr. Tsarnaev in this case. He cannot have physical access to another inmate. Is that correct?
MICHELLE NICOLET: I believe that is correct. I would have to see his actual SAMs to know for sure.
MR. WATKINS: And that's one of the modifications that the Department of Justice can make. They can keep a SAMs in place but remove that physical contact aspect?
MICHELLE NICOLET: We can make modifications, but for many of the modifications, it's ultimately up to the Bureau of Prisons as to whether or not they implement those.
MR. WATKINS: Whether they implement them. But some modifications you have to make before the Bureau of Prisons can phase somebody down or step somebody down. Is that correct?
MICHELLE NICOLET: Certain situations require modifications, yes.
MR. WATKINS: So if the Bureau of Prisons in some cases wants to move someone to a different unit or a different program, they have to get your okay, right?
MICHELLE NICOLET: Yes; that's correct.
MR. WATKINS: We talked about litigation and modifications made. Isn't it true that no court has ever ordered the SAMs to be vacated?
MR. MELLIN: Objection.
THE COURT: You may answer that.
MICHELLE NICOLET: I am not aware of any situation where that has happened.
BY MR. WATKINS:
MR. WATKINS: And because that is your business and you're the unit chief, you would be aware if that had happened?
MR. MELLIN: Objection.
THE COURT: You may have it in a different form.
BY MR. WATKINS:
MR. WATKINS: You are responsible at the FBI for 50 agents and the SAMs, correct?
MICHELLE NICOLET: Yes.
MR. WATKINS: You keep track of developments in SAMs, not just what your agents are doing but litigation also, correct?
MICHELLE NICOLET: I do.
MR. WATKINS: So if you had an adverse ruling by a court, you would learn about it?
MICHELLE NICOLET: Within the last 14 months that I've been there, yes.
MR. WATKINS: But you didn't come there out of a vacuum; you learned about the SAMs as you went -- even before you got your current position, right?
MICHELLE NICOLET: I became aware of the SAMs program when I got to my current position.
MR. WATKINS: And it's true, then, that you know of no case where a court has ordered the SAMs to be vacated?
MR. MELLIN: Objection.
BY MR. WATKINS:
MR. WATKINS: Or even modified?
THE COURT: Overruled.
You may answer that.
MICHELLE NICOLET: I'm aware of a case where -- an instance where the court has ordered that a SAMs be modified, yes.
BY MR. WATKINS:
MR. WATKINS: No. Well, where the court ordered the FBI to consider whether it should be modified. Is that correct?
MICHELLE NICOLET: My understanding is that the court has ordered a modification.
MR. WATKINS: And what case is that?
MICHELLE NICOLET: It is this one.
MR. WATKINS: Your Honor, may we be seen at sidebar?
THE COURT: All right.
(Discussion at sidebar and out of the hearing of the jury:)
MR. WATKINS: I would like the Court to instruct the jury that that's not true.
MR. MELLIN: Your Honor, he went into this area and he went into it very hard, and he's stuck with the answers and what this agent knows about this process.
MR. WATKINS: It's not accurate.
MR. WEINREB: He was specifically told not to go into this area; not to discuss specific cases.
THE COURT: Right. I presume the answer was unexpected.
MR. WEINREB: Then don't ask the question if you don't know the answer.
THE COURT: But there was a reference to this case which may have --
MR. WATKINS: There has been no court. We asked the government for that answer. I'm entitled to the answer that --
THE COURT: Well, to some extent a problem is what lawyers would understand an order to be and what non-lawyers -- I know that she's a lawyer.
MR. WATKINS: Judge, the government proffered her as somebody who knew about litigation in this case, if the Court specifically asked about that. And that's why I understood that. The answer she gave me the other day was "none." I'm entitled to that today.
MR. WEINREB: He can impeach her with a prior inconsistent statement, but I think that, frankly, the Court did effectively order the government to modify the SAMs in this case. And the proper objection might have been that -- the one that was made at side, which is that pretrial is different from post-trial. But this is not a well-taken objection because we were told to modify the SAMs or face the possibility of a court-ordered modification, and we chose to settle.
MR. MELLIN: And counsel is aware of that, your Honor, and he is the one who went into this.
MR. WATKINS: The question was very narrow.
THE COURT: The problem is the issue, I think, requires me to revisit the transcripts of the hearings and status conferences in which these matters were discussed. I'm not sure it rises to an implicit order as suggested, but it certainly -- I think we had some discussions which encouraged the parties to adjust, in particular the government to reevaluate things, and that --
MR. WATKINS: The question was whether a court had ordered it.
THE COURT: Well, I think we should continue with the examination of the witness, and if there's something to be done, we can do it.
MR. WATKINS: My examination is done. That is the last question on it. The answer, a truthful answer, is --
THE COURT: Well --
MR. WATKINS: -- no court has done it. This Court knows that it has not done it.
THE COURT: That's still correctable, but I just want to reflect on it a little bit, perhaps by looking at the status conference transcripts.
MR. WATKINS: I will ask one follow-up question, I think.
(In open court:)
BY MR. WATKINS:
MR. WATKINS: Ms. Nicolet, regarding SAMs on prisoners that have been sentenced, has there ever been a court order where a court has vacated the SAMs or ordered them modified?
MICHELLE NICOLET: Not that I'm aware of.
MR. WATKINS: I have nothing further.
MR. MELLIN: Very briefly.
THE COURT: Mr. Mellin?
REDIRECT EXAMINATION BY MR. MELLIN:
MR. MELLIN: Agent, you were asked by Mr. Watkins about what impact ongoing relevance has to a determination about a SAMs. What other issues are issues that are considered before SAMs are renewed?
MICHELLE NICOLET: We consider a number of issues including current relevancy, but also if they are a leader of a terrorist group or any violations that have occurred historically, we consider those as well, potential disciplinary -- other disciplinary infractions within the Bureau of Prisons. We consider many things.
MR. MELLIN: Counsel asked you about if there had been SAMs that had been in effect since 2002. Do you remember those questions?
MICHELLE NICOLET: I do.
MR. MELLIN: And just so we're all clear, SAMs went into effect before 2002. Is that right?
MICHELLE NICOLET: Correct.
MR. MELLIN: In 1995? '94, '95?
MICHELLE NICOLET: Approximately, yes.
MR. MELLIN: And 2002 is when the H unit, or the special security unit, kicked in. Is that correct?
MICHELLE NICOLET: That is my understanding, yes.
MR. MELLIN: Have there been individuals who are on SAMs since 2002 where the SAMs now have been removed?
MR. WATKINS: Objection.
THE COURT: Overruled. You may answer that question.
MICHELLE NICOLET: Yes, there are.
MR. MELLIN: Thank you. Nothing further.
THE COURT: Anything else?
MR. WATKINS: No, your Honor.
All right, Agent. You may step down.
(The witness is excused.)
THE COURT: Let me see counsel.