4.James Keith McElveen — Direct/Cross
189 linesMS. CAPPLEMAN: Yes, sir.
(jury enters the courtroom.)
JUDGE EVERETT: Everyone can be seated. Please call your next witness.
MS. CAPPLEMAN: The State calls Keith McElveen.
JUDGE EVERETT: Please raise your right hand, sir.
whereupon, KEITH MCELVEEN was called as a witness, having been first duly sworn, was examined and testified as follows:
JUDGE EVERETT: You may take your seat.
DIRECT EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Sir, please introduce yourself and spell your name.
JAMES KEITH MCELVEEN: James Keith McElveen, J-A-M-E-S, K-E-I-T-H, M-C-E-L-V-E-E-N.
MS. CAPPLEMAN: How are you employed, sir?
JAMES KEITH MCELVEEN: I work as a forensics engineer, a media forensics engineer.
MS. CAPPLEMAN: And what is a forensic engineer?
JAMES KEITH MCELVEEN: we specialize in taking audio, video, or computer data and extracting intelligence out of it.
MS. CAPPLEMAN: How long have you been doing this type of work?
JAMES KEITH MCELVEEN: A bit over 35 years.
MS. CAPPLEMAN: Can you go through your training and experience that qualifies you to do this type of forensic engineering?
JAMES KEITH MCELVEEN: I began doing this type of forensic engineering back post 35 years ago working for the government, working on war crimes investigations unmixing voices. Since then I've had 20-plus -- either given or taken 20-plus courses in this discipline.
MS. CAPPLEMAN: All right. And have you had an opportunity to testify as an expert in your field previously?
JAMES KEITH MCELVEEN: Yes, I have.
MS. CAPPLEMAN: Judge, I would tender the witness at this time as an expert in the area of forensic engineering.
JUDGE EVERETT: Does the Defense wish to engage in any further voir dire of the witness?
MR. RASHBAUM: No, Your Honor.
JUDGE EVERETT: Is there any challenge to his ability to provide an opinion in his stated field?
MR. RASHBAUM: No.
JUDGE EVERETT: Members of the jury, the witness will be permitted to provide you with an opinion today in the field of forensic engineering. You may continue.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Sir, were you asked to clarify recordings in reference to the case State of Florida v. Charles Adelson?
JAMES KEITH MCELVEEN: Yes, I was.
MS. CAPPLEMAN: All right. I want to start with the Dolce vita restaurant recording. what items were provided to you in reference to that exhibit?
JAMES KEITH MCELVEEN: I received two recordings, one from each device that was deployed in that restaurant.
MS. CAPPLEMAN: Okay. And was one better audio and one better video?
MS. CAPPLEMAN: All right. And what's the part that's of interest to you?
JAMES KEITH MCELVEEN: The audio.
MS. CAPPLEMAN: And so you don't do anything with the video?
JAMES KEITH MCELVEEN: Only used it for observational timing reasons.
MS. CAPPLEMAN: Okay. And was the bag that had the mesh on it, was that the one that was the better audio --
MS. CAPPLEMAN: -- or the one that had the better video?
JAMES KEITH MCELVEEN: Right. The one with the better video had very poor audio, and the one that had better audio had very poor video.
MS. CAPPLEMAN: All right. I'm with you. And the one where we are looking through the little holes, is that the one with the good audio or the good video?
JAMES KEITH MCELVEEN: The good audio.
MS. CAPPLEMAN: All right. Can you sort of walk through the process for the jury of how you clarify an audio that has a lot of background noise going on?
JAMES KEITH MCELVEEN: Yes. Our technique is a bit different than other techniques in that we take the audio and treat it like it's an image, like a photograph that's out of focus. It's blurry. And so we read it into the computer and figure out how to un-blur the sound, just like you would un-blur a photograph.
And this fortunately has the nice effect of focusing in on the person's voice, or the people's voices if they are near each other, and blurring out the rest of the background. Sort of how you would use a video lens if you are a photographer, and you can zoom in on a person's face, but everything behind the person and everything closer is blurry and kind of pushed down and not as noticeable.
MS. CAPPLEMAN: Were there any particular issues or problems with this audio?
JAMES KEITH MCELVEEN: It was frankly a mess. Competing voices, loud noises, movement of both devices, not good positioning. There was a kitchen. And, of course, it's a busy cafe, coffee grinders, blenders, order taking, lots of different sounds going on.
MS. CAPPLEMAN: All right. And can you tell the jury that the most up-to-date efforts available in your field were applied to this exhibit to make it as good as possible?
JAMES KEITH MCELVEEN: They were.
MS. CAPPLEMAN: All right. And what was the outcome? I think you've got some different segments. Could you tell us about that?
JAMES KEITH MCELVEEN: Yes. Fortunately, the device -- recording device that had the better audio was also the one that had the longest audio. The recording started at different times. One device arrived into the establishment significantly prior to the other one. I believe it was, like, 20 minutes difference.
The one that started first -- its recording first, moved. You know, the person carrying it came in from the outside, came to the counter, then went to a seat, and then moved to a different seat, getting better position. And each one of those changes of location causes the focus to change. Just like you were taking a picture. All of a sudden the person you're trying to take a picture of moves, you've lost your focus, and you have to regain your focus.
Also, a limitation of our tool limited the sheer amount of audio. It's a huge amount of recording. And so we had to break it up into portions, segments, which we did the beginning, the middle, and the end. And we worked with the FBI agent to break it at about the same points that the motion happened of the recording device.
MS. CAPPLEMAN: Okay. And have you had an opportunity to examine State's Exhibit 110, a thumb drive?
JAMES KEITH MCELVEEN: Yes, immediately before we came in here.
MS. CAPPLEMAN: All right. And is that a fair and accurate work product that you did as far as the audio only on the Dolce Vita recording?
MS. CAPPLEMAN: Judge, I ask to move into evidence State's 110.
JUDGE EVERETT: Any objection?
MR. RASHBAUM: Just our previous objection, Your Honor.
JUDGE EVERETT: State's 110 will be admitted over objection at this time.
(State's Exhibit 110 received in evidence.)
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Is there any part of your processing or methodology that actually changes the voices or adds words into the voices, anything like that?
JAMES KEITH MCELVEEN: No, when we begin our processing, we set up the controls, and the tool does not allow you to actually make any changes. You hit process, and it starts at the beginning and works all the way to the end. And you can't change anything as you go along and decide to leave the word "no" or “yes” out. You get the entire thing, and the same length of the recording in is the same that comes out down to microseconds.
MS. CAPPLEMAN: And did you also perform a similar analysis or work on a second restaurant recording known as the Matsuri restaurant recording?
JAMES KEITH MCELVEEN: I did.
MS. CAPPLEMAN: And have you had an opportunity to review State's 113?
JAMES KEITH MCELVEEN: Yes, immediately before.
MS. CAPPLEMAN: I'm sorry? Go ahead.
JAMES KEITH MCELVEEN: Immediately before.
MS. CAPPLEMAN: All right. Before we came into the courtroom?
JAMES KEITH MCELVEEN: (Nods head.)
MS. CAPPLEMAN: And is this the thumb drive that you prepared with your work in reference to the Matsuri recording?
JAMES KEITH MCELVEEN: It is.
MS. CAPPLEMAN: All right. And were the same types of processes applied to this recording as the first one we discussed?
JAMES KEITH MCELVEEN: Exactly the same.
MS. CAPPLEMAN: I move into evidence State's 113.
JUDGE EVERETT: Any objection to State's 113?
MR. RASHBAUM: No, Your Honor.
JUDGE EVERETT: State's 113 is admitted at this time.
(State's Exhibit 113 received in evidence.)
MS. CAPPLEMAN: No further questions, Your Honor.
JUDGE EVERETT: Cross-examination?
MR. RASHBAUM: Just briefly, Your Honor.
CROSS- EXAMINATION BY MR. RASHBAUM:
MR. RASHBAUM: Starting with the Dolce vita recording, that recording was made in April of 2016, right?
JAMES KEITH MCELVEEN: I do not know.
MR. RASHBAUM: You were asked to enhance the recording in January of 2022, right?
JAMES KEITH MCELVEEN: That sounds correct.
MR. RASHBAUM: You'd agree with me that there's 20-plus minutes of the recording that's missing, right? The first 20 minutes or so of the recording are missing?
JAMES KEITH MCELVEEN: what do you -- please clarify what you mean by missing.
MR. RASHBAUM: well, fair point. You would agree that the meeting that was recorded started before the recording, right?
JAMES KEITH MCELVEEN: If you mean how long the conversational participants had been carrying on a conversation before the person carrying the recorder entered the restaurant, I have no idea how long they had been talking.
MR. RASHBAUM: The recording picks up in the middle of a conversation, correct?
JAMES KEITH MCELVEEN: If you mean device two, the one with the longer recording, I believe that you might be confusing the fact that it was the middle segment of three, if you mean the conversation I think you mean.
MR. RASHBAUM: The recording that you enhanced is not the beginning of the conversation, correct, between the participants?
JAMES KEITH MCELVEEN: Again, I don't know when they began talking. But we cleaned up all the way from the beginning of the recorder entering the restaurant by the front, to a chair, to another seat. And the first segment had clear conversation going on at times. The voice level goes up and down. Then there's the middle segment, which is a few seconds -- 30 seconds or something, maybe a minute goes by, and then the video from the other device starts.
MR. RASHBAUM: Fair enough.
JAMES KEITH MCELVEEN: If that's the one that you're talking about, then that's only the middle. There's -- the lead-up to that portion is another 20 minutes.
MR. RASHBAUM: But you don't know if the conversation began before the recording started, correct?
JAMES KEITH MCELVEEN: Correct. I have no way of knowing that.
MR. RASHBAUM: Now, even on your enhanced version, virtually everything said by the female participant remains inaudible or unintelligible, right?
JAMES KEITH MCELVEEN: I'm not exactly sure what you mean by virtually, but I would say that the female participant talked very seldomly. More of her words are audible in the first segment than in the middle segment, but she also seemed to talk less. And I can say that because you can obviously tell that she does say some words. Even when you can't pick them out, you can tell that something is being said not only by the male participant, his conversational behavior, but you can actually hear some vocalizations from the female; but you can't always pick out what she is saying.
MR. RASHBAUM: During a lot of the recording, no matter what you did to fix that lens, you still couldn't make out what she was saying, correct?
JAMES KEITH MCELVEEN: Yes. She was speaking away from the male participant and speaking in a low enough level that at many times the male participant asked her to repeat herself.
MR. RASHBAUM: Nonetheless, on the recording itself, no matter what you did a lot of times, you're only hearing half of a conversation, right?
JAMES KEITH MCELVEEN: One side of a conversation.
MR. RASHBAUM: One side of a conversation?
JAMES KEITH MCELVEEN: That's correct.
MR. RASHBAUM: Now, were you aware that the FBI did its own enhancement back in August of 2016?
JAMES KEITH MCELVEEN: I was told that.
MR. RASHBAUM: Did you ever listen to that enhancement?
JAMES KEITH MCELVEEN: Yes, I did.
MR. RASHBAUM: Are you aware that virtually everything you hear on your enhancement you can hear on that enhancement?
JAMES KEITH MCELVEEN: I wouldn't agree with that statement.
MR. RASHBAUM: Okay. You hear different words on your enhancement versus the first enhancement, or are they just clearer?
JAMES KEITH MCELVEEN: Much clearer. My understanding, I was -- the reason we were given these recordings was that originally the evidence was not suitable for playback to the jury because it required somebody to be -- have very good listening equipment and to listen very carefully and loop it many times to be able to really pick out what the words might be. I would say in all fairness, that after our enhancement you didn't have to struggle that much except on those inaudible parts.
MR. RASHBAUM: So I am going to ask a very specific question, not about the ease of hearing it. I'm just asking, could you hear any new words on your recording versus the original recording?
JAMES KEITH MCELVEEN: I can only speak for myself, but I would say, yes, for me -- for my ears.
MR. RASHBAUM: Turning your attention to Matsuri. That recording was made in April of 2016, right?
JAMES KEITH MCELVEEN: I do not have this information.
MR. RASHBAUM: And, again, you weren't asked to perform an enhancement until early 2022, right?
JAMES KEITH MCELVEEN: That sounds right.
MR. RASHBAUM: And for those two recordings, again, is it your testimony that you hear different words on your enhancement versus the original?
JAMES KEITH MCELVEEN: I wouldn't say -- well, actually, I would agree, different words than were originally transcribed versus what I heard, and I would say that the result of our enhancement, more words are intelligible.
MR. RASHBAUM: Now, you also note in your report that portions where one participant whispers in the ear of the other -- this is Matsuri -- were not recoverable due to the soft level of the sound; is that accurate?
JAMES KEITH MCELVEEN: Yes, I would also say and due to the obscuration of the head. One participant leans over and whispers very close to the other person's ear. So all of a sudden, the head is in the way of the focusing effort we made.
MR. RASHBAUM: So in those instances where those whispers occur at Matsuri, you have no idea what was said?
JAMES KEITH MCELVEEN: Correct.
MR. RASHBAUM: May I have one moment, Your Honor?
JUDGE EVERETT: Take your time.
MR. RASHBAUM: I have no further questions.
JUDGE EVERETT: Redirect examination?
MS. CAPPLEMAN: No, Your Honor. No further questions.
JUDGE EVERETT: You may step down, sir.
Members of the jury, before we continue with the next witness, we will take a brief break. The bailiff will escort you back to the jury room.
(Jury exits the courtroom.)
JUDGE EVERETT: Everyone may be seated. I believe you needed to review, once again, Mr. Rashbaum, the parts of the recording that have now been modified?
MR. RASHBAUM: Judge, may we be excused to do that?
JUDGE EVERETT: That's fine.
(Court is in recess.)
JUDGE EVERETT: Mr. Rashbaum, have you finished reviewing?
MR. RASHBAUM: I'm sorry, Judge?
JUDGE EVERETT: Have you finished reviewing at this point?
MR. RASHBAUM: we did review it, yes.
JUDGE EVERETT: Is there anything further that you wish to raise?
MR. RASHBAUM: Just our previous objection, Your Honor.
JUDGE EVERETT: Very well. As to the instruction to be given before the recording is shown, I have drafted one. Do the parties have any instruction that they wish for the Court to consider as well?
MS. CAPPLEMAN: I have not drafted anything, Your Honor.
MS. MEYERS: We have taken a look at pattern instruction 2.6, Your Honor.
JUDGE EVERETT: Okay. If you wish to come up here, you can read this. My intention would be to give this instruction along with 2.6 as well.
Does the State wish to be heard concerning the instruction?
MS. CAPPLEMAN: No, Your Honor.
JUDGE EVERETT: Very well. Then I will give this instruction and also 2.6, unless the parties are asking for anything else to be given as well?
MS. CAPPLEMAN: Nothing from the State.
MR. RASHBAUM: No, Your Honor.
JUDGE EVERETT: Please bring in the jurors. Oh, one moment.
MS. DUGAN: We are getting a little bit of IT help. If we could just take one second?
MS. CAPPLEMAN: Could we approach to discuss timing?
JUDGE EVERETT: Sure.
(Sidebar conference as follows:)
JUDGE EVERETT: Go ahead.
MS. CAPPLEMAN: So I just want to kind of get a plan. we've got one more short witness, and then we've got quite a lengthy witness with lots of recordings. I think his testimony would probably take about four to five hours for our part, and I presume a lengthy cross-examination.
I know it's Halloween. People have kids and want to trick or treat. So however you want to plan it, this lengthy witness will very likely be our last witness. I anticipate we will rest tomorrow whenever we are done with him.
JUDGE EVERETT: Okay.
MS. CAPPLEMAN: So maybe we could break a little early today. we could get started with him. And then whatever time Your Honor thinks appropriate, break for the day, and we will be fine.
JUDGE EVERETT: My thought would be call the short one, and if there is a natural breaking point of the recordings, let's probably aim for about 4:45 or 5:00.
MS. CAPPLEMAN: Okay.
JUDGE EVERETT: And then at that point if you're still not done with direct, we will cut it off there.
MS. CAPPLEMAN: Okay. I definitely won't be done with direct, but I think it will be fine to pick a breaking point around that time.
JUDGE EVERETT: Did you have something else to add?
MR. RASHBAUM: The only thing, I guess, considering that is we will need a little bit of time after this witness, I guess it will be tomorrow, to discuss with our client what he plans on doing, if anything.
JUDGE EVERETT: well, it's a good evening to initiate that discussion.
MR. RASHBAUM: well, I can assure you that the discussion has been initiated for a year.
JUDGE EVERETT: Yes.
MR. RASHBAUM: Having said that though, I do need a little bit of time after this -- this is the critical witness in the case.
JUDGE EVERETT: Okay.
MR. RASHBAUM: So I will need -- I just want to be up-front with the Court.
JUDGE EVERETT: That's fine.
MR. RASHBAUM: I will need a little bit of time just to see where we are at at that point. I'm not telling you I need a whole day. I'm just telling you I need a little time.
JUDGE EVERETT: Very well. I will give you the time that you need to make the decision. I'm not committing you to anything whatsoever, but I assumed based on the opening he would be testifying, but --
MR. RASHBAUM: No, I wouldn't make that assumption.
JUDGE EVERETT: It's his choice. All right.
(Sidebar conference concluded.)
MS. CAPPLEMAN: We are ready to proceed, Judge.
JUDGE EVERETT: Please bring them in.
(jury enters the courtroom.)
JUDGE EVERETT: Everyone can be seated.
State, you may call your next witness.
MS. CAPPLEMAN: The State calls Special Agent Brian Kendall.
JUDGE EVERETT: Please raise your right hand.
whereupon, BRIAN KENDALL was called as a witness, having been first duly sworn, was examined and testified as follows:
JUDGE EVERETT: You may take your seat.
DIRECT EXAMINATION BY MS. CAPPLEMAN: