24 May 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 3 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
335 45LLSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 May 21, 2004 8 9:35 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ANDREW DEMBER 16 CHRISTOPHER MORVILLO 17 ROBIN BAKER 17 ANTHONY BARKOW 18 Assistant United States Attorneys 18 19 MICHAEL TIGAR 19 JILL R. SHELLOW-LAVINE 20 Attorneys for Defendant Stewart 20 21 DAVID A. RUHNKE 21 DAVID STERN 22 Attorneys for Defendant Yousry 22 23 KENNETH A. PAUL 23 BARRY M. FALLICK 24 TRISHA E. LaFACHE 24 Attorneys for Defendant Sattar 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 336 45LLSAT1 1 (In open court) 2 THE COURT: Good morning, all. Please be seated. 3 MR. TIGAR: Good morning, your Honor. I wanted to 4 bring to the Court's attention, yesterday, during the time 5 that -- Wednesday, excuse me, I stand corrected. Wednesday, 6 the first day of jury selection, there was a man standing, a 7 demonstrator, across the street saying that Miss Stewart has 8 blood on her hands and so on. He had previously done a 9 performance in front of her office, he cut the head off a doll, 10 publicly saying she's responsible for all sorts of bad things 11 going on. And then there was a newspaper article about it in 12 the -- this activity. And I understand -- we're getting a copy 13 of that to bring over. 14 We simply bring it to the Court's attention because if 15 any prospective jurors did see it -- he was also handing out 16 leaflets. We're trying to get a copy of the leaflet for the 17 Court's record. He was probably more than 500 feet away. He 18 has a First Amendment right to do what he does, but it does 19 raise an issue. 20 THE COURT: I appreciate your bringing it to my 21 attention. I didn't see any article about it, but I appreciate 22 your bringing it to my attention. I do ask the jurors every 23 day if they've seen or heard or read anything. 24 MR. TIGAR: Yes, I know. I appreciate that. As I 25 say, when we get these papers we'll ask them to be marked as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 337 45LLSAT1 1 Court's exhibits. 2 THE COURT: All right. 3 The next juror, we should check if Juror Number 7 or 4 Juror Number 41 is here. And if not, then Juror Number 70. 5 DEPUTY CLERK: 70. 6 THE COURT: Seven, 41 and 70. Just let us know who's 7 coming in. 8 DEPUTY CLERK: Yes, sir. Seven is on the way. 9 (Juror present) 10 BY THE COURT: 11 Q. Good morning. Please have a seat. 12 A. Good morning. 13 Q. The first seat, please. Thank you. Good morning. 14 A. Good morning. 15 Q. Could you bring the microphone a little closer to you? 16 Good morning, Juror Number 7. You told us that you 17 had a serious hardship? 18 A. I did? 19 Q. Could you explain that for me? 20 A. I don't remember saying I had a serious hardship. 21 Q. Oh, I'm sorry. You had noted that your left hand was in a 22 brace. 23 A. Right, which I forgot this morning. 24 Q. And that you may need surgery. 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 338 45LLSAT1 1 Q. And you mentioned that you had a doctor's appointment? 2 A. That day. 3 Q. Okay. Is there anything about that that would, now, as 4 you're here, that would present a serious hardship for you from 5 serving on the jury? 6 A. No, unless they decided to do -- I have carpal tunnel in 7 this arm. 8 Q. But as of -- 9 A. No, I haven't had a reschedule -- 10 Q. Okay. 11 A. -- appointment. 12 Q. As of now, you don't -- you're not aware of a serious 13 hardship in terms of serving on the jury? 14 A. No. 15 Q. Okay. Let me ask you some preliminary questions before I 16 get to some of the other answers on the questionnaire. Since 17 you were here last, has anything changed concerning your 18 ability to serve as a juror in this case or has anything 19 occurred to you that may affect your ability to be a fair and 20 impartial juror in this case? 21 A. I don't want to be a juror in this case. 22 Q. You don't want to be? 23 A. I don't want to be. 24 Q. Well -- 25 A. I understand I don't have a choice, but I'm just saying, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 339 45LLSAT1 1 don't want to be. 2 Q. Why don't you want to be a juror? 3 A. Well -- 4 Q. Why don't you? 5 A. I think that this particular case is that -- that man from 6 Brooklyn, the blind man -- is that what this is about? 7 Q. His name will certainly come up, and -- 8 A. Okay. 9 Q. -- the charges and the indictment in the case -- and 10 they're only charges -- relate to allegations about assistance 11 that was provided to him. 12 A. Okay. I understand that. But this is somebody that isn't 13 even a citizen of this country, am I right? Am I? I mean, 14 this is a man who plotted against -- during the World Trade 15 thing, the first time. Am I right? 16 Q. What do you know about him? 17 A. I only know what I -- first of all, I don't know for sure 18 that it is that person. But if it is that person, then that 19 man was arrested in Brooklyn a few years ago for plotting 20 against or conspiring with people to do damage and bodily harm 21 to the people and the World Trade Center the first time. 22 Q. All right. And would a case that involved him -- 23 A. Yes. 24 Q. -- could you be fair and impartial in a case that involved 25 him? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 340 45LLSAT1 1 A. I don't think so, because I don't understand why -- first 2 of all, in the light of everything else, why does this man have 3 the rights of coming to our courts? He's not a citizen of the 4 United States. And second of all -- well, first of all is 5 good. 6 Q. Okay. Could you step out for a moment? 7 A. Sure. 8 (Juror absent) 9 THE COURT: I'm prepared to strike the juror. 10 MR. DEMBER: We have no objection, your Honor. 11 MR. RUHNKE: We obviously agree, your Honor. 12 THE COURT: All right. 13 (Juror present) 14 BY THE COURT: 15 Q. Juror Number 7, I appreciate your examining in, and I will 16 excuse you as a juror in this case. 17 A. Thank you. 18 Q. All right. 19 (Juror absent) 20 THE COURT: Juror Number 41 or Juror Number 70. 21 DEPUTY CLERK: 41 is on the way. 22 (Juror present) 23 BY THE COURT: 24 Q. Hi. Please have a seat. Good morning, Juror Number 41. 25 A. Good morning. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 341 45LLSAT1 1 Q. It's good to see you. 2 A. Thanks. 3 Q. You had indicated that, on your questionnaire, that you had 4 a serious hardship. You said that you weren't sure if your 5 employer would pay you. 6 A. Right. 7 Q. Do you know now if your employer would pay you? 8 A. Yeah, they do. 9 Q. They do? 10 A. They do. 11 Q. So it's not a serious hardship for you to be -- 12 A. Financially, no. But in terms of school -- 13 Q. Could you keep your voice up, please? 14 A. Sure. Financially, it won't be, but in terms of -- I'll be 15 going to school during the night three times a week till 16 July 8th. And then I start up again in early August. So work 17 and school. 18 Q. You go to school at night? 19 A. Uh-huh. 20 Q. We only sit until 4:30. 21 A. Yeah, but in terms of -- my employer right now is giving me 22 part-time -- well, I'm working part-time so that I can study so 23 I have -- like every other week I have Thursdays and Fridays 24 off so that I can get my studying done, and, you know, that's 25 my only concern, to make sure that I can get my studying done. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 342 45LLSAT1 1 Q. We usually don't sit on Fridays. And there's weekends. 2 And your employer would continue to pay you while you were on 3 jury duty. 4 A. Uh-huh. 5 Q. And we don't -- we break at 4:30. 6 A. Uh-huh. 7 Q. So taking all of that into account, you could continue your 8 schooling, couldn't you? 9 A. Yeah. 10 Q. So that's not a problem. 11 A. Okay. 12 Q. Is that -- 13 A. I just thought I would list it. 14 Q. Oh, sure. 15 A. Just as a consideration. 16 Q. I appreciate that, and I want jurors to -- and prospective 17 jurors to bring all of these issues to our attention. Let me 18 ask you some preliminary questions before I get to the other 19 questions. Since you were here last, has anything changed 20 concerning your ability to serve as a juror in this case, or 21 has anything occurred to you that may affect your ability to be 22 a fair and impartial juror? 23 A. No. 24 Q. It now appears that the final jury will be chosen in this 25 case on Monday, June the 21st, so after today it's unlikely SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 343 45LLSAT1 1 that you'll be asked to come back or call in before June the 2 18th. Does that present any serious hardship for you? 3 A. There's a potential business trip that may be happening on 4 June 20th, but I doubt it, because I have school. So I don't 5 think it will be an issue. But just in case. I may be asked 6 to go to Puerto Rico for that week of June 20th. But, you 7 know, if there's jury duty, obviously... 8 Q. Then you would miss the business trip. 9 A. Right, right. 10 Q. Okay. Since you were here last, have you spoken to anyone 11 about this case or have you looked at or listened to anything 12 about the case? 13 A. No. I have to study. 14 Q. Has anyone spoken to you about the case? 15 A. No. 16 Q. And that includes any conversations here at the courthouse 17 or with any other prospective jurors? 18 A. No. 19 Q. While you were waiting with the other prospective jurors, 20 did you or anyone you overheard discuss the case? 21 A. People just talking about the length of the case, potential 22 length of the case. 23 Q. The length of the case? 24 A. Yeah, in terms of serving. 25 Q. I'm sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 344 45LLSAT1 1 A. In terms of serving for possibly six months, I thought that 2 was what you mentioned in our first meeting. 3 Q. Four to six months? 4 A. Four to six months, right. People just concerned about 5 that. Expressing their concerns. 6 Q. Okay. Anything else? 7 A. No. 8 Q. Anyone talk about anything about any of the substance of 9 the case? 10 A. No. Not really. 11 Q. Did you -- anything else that you've heard? 12 A. No. I mean, if people were having conversations, it wasn't 13 to the whole group, maybe, you know, side conversations here 14 and there, but nothing. 15 Q. No one is prevented from talking. Just talking about this 16 case. 17 Did you have any conversations about this case or did 18 you overhear any conversations about this case? 19 A. No, I didn't. 20 Q. Can you tell me -- you mentioned that you're currently 21 pursuing an MBA. Is there any specialty in the MBA that you're 22 pursuing? 23 A. Finance. 24 Q. You had mentioned that your father doesn't live in this 25 country. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 345 45LLSAT1 1 A. Right. 2 Q. Where does your father live? 3 A. Dominican Republic. 4 Q. And what does your father do in the Dominican Republic? 5 A. He's not employed. He's actually ill, so he lives with his 6 family. 7 Q. Okay. You mentioned that your brother was shot and that 8 there was a lawsuit that was brought. 9 A. Right. 10 Q. Was the person who shot your brother prosecuted? 11 A. He was a minor, so he was imprisoned for a day, I believe, 12 and then, you know, was given community service. But he was a 13 minor, so they couldn't really prosecute. 14 Q. And then your brother or the family sued? 15 A. Uh-huh. 16 Q. And what was the outcome of that lawsuit? 17 A. We settled and we got some monetary compensation for, 18 obviously, the health care and some additional funds for, you 19 know, the issues that happened, so... there was settlement. 20 Q. You've had experience now with the court system, both in 21 terms of the prosecution of the minor and the subsequent 22 lawsuit. 23 A. Right. 24 Q. Is there anything about any of that, your experience with 25 the courts or with the lawyers or with any of the law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 346 45LLSAT1 1 enforcement authorities that would prevent you from being a 2 fair and impartial juror in this case? 3 A. I don't think so. I mean, that was a really long time ago. 4 I was pretty young when that happened, in terms of this 5 particular instance. You know, so there's nothing related to 6 that event that could, you know, make me impartial or something 7 like that. 8 Q. How long ago did that happen? 9 A. That was -- I was still in high school, so 10 -- like 10 10 years, 11 years. 11 Q. There's nothing about that that would prevent you from 12 being a fair and impartial juror in this case? 13 A. No. 14 Q. You mentioned that you worked with someone from -- and you 15 have a classmate from Iran? 16 A. Uh-huh. 17 Q. Is that the same person or -- 18 A. No, two different people. I have a classmate now, and then 19 I worked with someone awhile ago. 20 Q. Both from Iran? 21 A. Yeah. 22 Q. You were asked if you socialized with any people from the 23 Middle East and you didn't answer yes or no then you put down 24 coworker, classmate, Iran. 25 A. I have been socializing with my coworker, when he was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 347 45LLSAT1 1 employed at my job. And now with my classmate, you know, we 2 have drinks or whatever as a group, the class. 3 Q. Is there anything about your experiences with your 4 coworker, your classmate, that leads you to have any biases or 5 prejudices about people from -- of Middle Eastern descent? 6 A. No. I think that everyone that I meet that's from any 7 country outside of the U.S., I listen -- we always end up 8 talking about politics and everyone has their opinions and I 9 listen to their opinions and I have my own. So it's always 10 been sort of good conversations and political debate, like on a 11 very neutral -- not neutral, because everyone has extreme 12 opinions either way, but just like healthy conversation about 13 it. 14 I've never been -- I've never felt that someone has 15 a -- sort of impacted me in a negative way either way. Because 16 I make my own opinions; I decide what is important to me. 17 Q. All right. If you were chosen as a juror in this case, 18 would you listen to the evidence in this case and decide this 19 case based solely upon the evidence or lack of evidence and my 20 instructions on the law? 21 A. Absolutely. 22 Q. You mention that you think that sometimes there's racial 23 profiling after 9/11. What's the basis for that belief? 24 A. The basis for that. Well, I just think that there's been 25 increased news about instances and I have friends who, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 348 45LLSAT1 1 especially in the university setting, there's a lot more sort 2 of discussions around the issue, and, you know, there's things 3 that obviously you don't hear about, but specific incidents 4 that your friends tell you about that they have read in news 5 outside of mainstream U.S. news, and things like that. 6 So I think there's definitely, since 9/11, there's 7 been more cases of racial profiling and, you know, I think it 8 had to happen that way, given the circumstances. But it 9 doesn't mean that it's right and that you don't, you know, feel 10 concerned about it. As a minority in this country, I feel it's 11 something that you think about, and.... 12 Q. Okay. If you were chosen as a juror, as you know, this is 13 a criminal case. 14 A. Uh-huh. 15 Q. There are charges that have been brought. The fact that 16 there are charges is not evidence of anything. 17 A. Uh-huh. 18 Q. If you were chosen as a juror, any issues with respect to 19 why the charges were brought would not be for the jury. Do you 20 understand that? 21 A. Say that again? Would not be for? 22 Q. It's not an issue for the jury. The jury's determination 23 is whether the government has proven the charges in the 24 indictment beyond a reasonable doubt at trial, based on the 25 evidence or the lack of evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 349 45LLSAT1 1 A. Uh-huh. Yeah, absolutely. I understand that. 2 Q. And if you were chosen as a juror in this case, would you 3 be able to do that? 4 A. Absolutely, I think so, yeah. 5 Q. And would you be fair and impartial and listen to the 6 evidence or lack of evidence and decide the case based solely 7 on the evidence or lack of evidence in the case? 8 A. I think I can, yeah. 9 Q. Do you have any doubt about that, based upon anything 10 you've seen, heard, read, anything that's in your mind? 11 A. I can't think of anything, except the fact that this would 12 be my first time and obviously it's not going to be -- you 13 know, it's going to take a little bit of adjusting to sort of 14 separate yourself from the outside world and just focus on, 15 like you said, the evidence and has the case been proven. So I 16 would say the only thing would be lack of experience in doing 17 it. But there's a first time for everything, right? 18 Q. If you were chosen as a juror, are you committed to do 19 that? Would you provide the parties in this case a fair trial? 20 Would you listen to the evidence or lack of evidence and, to 21 the best of your ability, decide this case based solely on the 22 evidence or lack of evidence and my instructions on the law? 23 A. Yes. 24 Q. You mention that you had -- that you thought you read 25 something about the U.S.S. Cole. Do you recall what you read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 350 45LLSAT1 1 about the U.S.S. Cole? 2 A. I'm not very good about -- it was just -- well, what 3 happened in terms of the bombing, right? I think I remember 4 that. I'm not very sure. I just remember, it was awhile ago, 5 and I can't really, you know -- the news just mumbles in my 6 head, but -- 7 Q. Okay. 8 A. And I remember reading about it briefly, and so that's why 9 it came to mind and I said yes. But it wasn't something.... 10 Q. Anything else that you can recall about what you saw or 11 read about that? 12 A. I think it was just a description of what happened, that 13 there was a bombing and there was some -- I can't say right 14 now. I can't really remember what it was. I just know that I 15 read about it. 16 Q. All right. 17 A. And it was not -- the details of what happened are mumbled 18 in my head, so I can't really say. 19 Q. Okay. You correctly explained before that if you were 20 chosen as a juror, what you would have to do is simply listen 21 to the evidence or lack of evidence in the case. 22 A. Right. 23 Q. And decide this case based solely upon the evidence or the 24 lack of evidence. Is there anything that you've seen or heard 25 or read that would prevent you from doing that, listening to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 351 45LLSAT1 1 the evidence or lack of evidence and deciding the case based 2 solely on the evidence or lack of evidence? 3 A. No. 4 Q. As you can tell from all of these questions, the 5 fundamental issue is whether there is anything in your personal 6 history or life experience, whether I've asked you about it 7 specifically or not, that would prevent you from being a fair 8 and impartial juror in this case. So let me ask you one final 9 time whether there's anything, whether I've asked you about it 10 specifically or not, that would prevent you from being a fair 11 and impartial juror in this case? 12 A. No. 13 Q. If you were chosen as a juror in the case, would you decide 14 the case solely on the evidence or lack of evidence and in 15 accordance with my instructions on the law? 16 A. Yes. 17 Q. Okay. Could you step out just for a moment? 18 (Juror absent) 19 MR. TIGAR: Could you ask her what neighborhood in the 20 Bronx? She just said Bronx. It's helpful to us. Beyond that, 21 we have nothing. 22 MR. DEMBER: Nothing, your Honor. 23 THE COURT: Okay. I will ask her what neighborhood 24 and I'll call her back to call on June 18th. 25 Please ask her to return. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 352 45LLSAT1 1 (Juror present) 2 BY THE COURT: 3 Q. Hi. 4 A. Hi. 5 Q. One follow-up question: Could you tell me what 6 neighborhood in the Bronx you live in? 7 A. Parkchester, 177th Street. 8 Q. I'm going to -- you're still in the process of jury 9 selection. Mr. Fletcher will give you a note indicating the 10 number to call back on June the 18th. 11 A. Okay. 12 Q. It's very important, very important, to continue to follow 13 my instructions. I know you're busy and studying and whatnot, 14 but please, don't talk about this case or anything to do with 15 it. Please remember not to look at, listen to, read anything 16 in connection with the case. If you see something that is 17 connected with the case in any way, simply turn away. 18 And finally, as I'll tell the jurors who are selected, 19 remember to keep an open mind until you've heard all of the 20 evidence in the case, I've instructed you on the law and you've 21 gone to the jury room to begin your deliberations. Fairness 22 and justice to the parties requires that you do that. All 23 right? 24 A. All right. 25 (Juror absent) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 353 45LLSAT1 1 THE COURT: Number 70. 2 DEPUTY CLERK: Number 70. 3 U.S. MARSHAL: Did you say 70? 4 DEPUTY CLERK: 70. 5 U.S. MARSHAL: 70 is not in there. 6 THE COURT: All right. 76. 7 U.S. MARSHAL: 76. 8 THE COURT: Ask Mr. Grate to follow up on that. 9 (Juror present) 10 BY THE COURT: 11 Q. Good morning. Please have a seat. 12 A. Good morning. 13 Q. Good morning, Juror 76. 14 A. Good morning. 15 Q. Since you were here last, has anything changed concerning 16 your ability to serve as a juror in this case, or has anything 17 occurred to you that may affect your ability to be a fair and 18 impartial juror in this case? 19 A. No. 20 Q. It now appears that the date that the final jury will be 21 chosen in this case will be Monday, June 21st. So after today, 22 you will -- it's not likely you'll be asked to call back before 23 June the 18th. Does that present any serious hardship for you? 24 A. I have -- can I check my calendar? I have travel plans 25 around that date. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 354 45LLSAT1 1 Q. Sure. 2 A. I have plans to be out of the city from the -- 3 Q. I'm sorry? 4 A. If I'm back by the 16th, that would be -- 5 Q. That's fine? 6 A. But then I have other travel plans July 3rd through 9th. 7 Q. Please keep your voice up. I can't hear you. 8 A. I have travel plans July 3rd through 9th. So that would -- 9 Q. We don't sit over the July 4th weekend. It's a four-day 10 weekend. 11 A. But the rest of that week, the 6th through the 9th, I would 12 be out of town. 13 Q. You had explained that serving on the jury would not be a 14 serious hardship for you. 15 A. No -- okay, it could be changed. Okay. 16 Q. Okay. All right. And since you were here last, have you 17 spoken to anyone about the case or have you looked at or 18 listened to anything about the case? 19 A. No. I saw a headline, I guess in yesterday's paper, but I 20 didn't read the article. 21 Q. Good. What paper did you see the headline in? 22 A. New York Times. 23 Q. All right. And you turned away? 24 A. Yeah. I just saw the bottom of the page what was going to 25 be inside the paper, so I put it aside. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 355 45LLSAT1 1 Q. Do you recall anything that you read in that article at 2 all? 3 A. It just said, Jury selection begins in trial of lawyer, and 4 I assumed that was this case, so... 5 Q. And then you turned away? 6 A. Yeah. 7 Q. Okay. As I've told you before, there may be publicity in 8 the case, and you did exactly the right thing. You turned 9 away. The reporters, for all of their diligence, don't always 10 get things right. And anything that's relevant for the jurors, 11 anything, they'll hear in Court, so that's why it's exactly 12 right to do what you did. If you see anything, just turn away. 13 Have you spoken to anyone about the case? 14 A. Not since I filled out the questionnaire. 15 Q. Did you speak to anyone about the case in connection with 16 filling out the questionnaire? 17 A. No. 18 Q. Has -- and that includes any conversations here at the 19 courthouse or with any other prospective jurors? 20 A. I mean, there's just been speculation on when, you know, 21 jury selection might end; how long we might be here. But not 22 about the facts of the case or anything. 23 Q. Has anyone spoken to you about the case? 24 A. No. 25 Q. Other than what you've said, speculation about the length SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 356 45LLSAT1 1 of the case, while you were waiting with the other prospective 2 jurors, did you speak to anyone or has -- did you overhear 3 anyone else talk about the case? 4 A. No. 5 Q. You mentioned that you had a friend and teammate who was 6 in -- near Afghanistan, served near Afghanistan? 7 A. Yes. 8 Q. Was that -- did that person serve in the military? 9 A. Yes. 10 Q. Is that person still there or -- 11 A. No, he's back. 12 Q. I'm sorry? 13 A. No, he's come back. 14 Q. He's come back. Okay. And is there anything about that 15 that would prevent you from being a fair and impartial juror in 16 this case? 17 A. No. 18 Q. You mentioned that you served as an alternate in a -- in a 19 criminal case; is that right? 20 A. That's right. 21 Q. And you think it was a state court case involving robbery? 22 A. I believe so. 23 Q. Did you sit through the trial? 24 A. The trial was -- it didn't end. There was never -- they 25 just dismissed us in the middle of the trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 357 45LLSAT1 1 Q. Okay. Is there anything about that experience that would 2 prevent you from being a fair and impartial juror in this case? 3 A. No. 4 Q. You mentioned that you had a misdemeanor -- was it in 5 college? 6 A. That's right. 7 Q. Could you just explain to me what the case was about? 8 A. Some friends and I went up to the top of a building at 9 night one time and we got arrested for trespassing. 10 Q. And did you -- how was that case resolved? You were 11 arrested and then? 12 A. We were arrested and given little citations and then came 13 to court in about a week and pled guilty. 14 Q. Okay. And what was the penalty? 15 A. I think we were find $40, $50, I'm not sure. 16 Q. Okay. And how long ago was that? 17 A. 20 years. 18 Q. Okay. 19 A. 18 years. 20 Q. 18 years? 21 A. Yeah, 18 years. 22 Q. Is there anything about that experience -- you were 23 represented by a lawyer? 24 A. No. 25 Q. You were not. Oh, okay. Is there anything about that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 358 45LLSAT1 1 experience with the police or with the courts or with the 2 criminal justice system, anything about that, that prevents you 3 from being a fair and impartial juror in this case? 4 A. No. 5 Q. You mentioned that you were a member of People for the 6 American Way, the ACLU, and Amnesty International; is that 7 right? 8 A. Yeah. At some point I was a member of all those. 9 Q. And you think that your husband was a member of one or more 10 of those organizations also? 11 A. I think so. I'm not sure. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 359 45LSSAT2 1 Q. Are you still a member of any of those organizations? 2 A. No. 3 Q. When was the last time that you ceased to be a member of 4 any of those organizations? 5 A. I think probably 15, 16 years ago. 6 Q. Okay. 7 Is there anything about your association with any of 8 those organizations in the past that would prevent you from 9 being a fair and impartial juror in this case? 10 A. No. 11 Q. You mentioned that your dissertation dealt with English 12 law. What was the subject of the dissertation? 13 A. I wrote about people convicted of heresy in the 14th and 14 15th Century England, and how that affected literary production 15 at that time. 16 Q. Heresy? 17 A. Heresy, yes. 18 Q. Okay. 19 You mentioned that your brother-in-law visited the 20 Mideast in about 2003, visited Egypt, perhaps other places. 21 Why did your brother-in-law go there? 22 A. For business. 23 Q. I don't mean to pry but just tell me in general what the 24 nature of the business was. 25 A. I think he teaches people how to put together certain SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 360 45LSSAT2 1 communication systems. 2 Q. Okay. 3 And you also mentioned you have several friends who 4 are from Israel. 5 A. Right. 6 Q. And is there anything about your brother-in-law's trip or 7 business in the Mideast or your friends from Israel that would 8 prevent you from being a fair and impartial juror in this case? 9 A. No. 10 Q. You mentioned that you had a teammate and a friend who were 11 of Middle Eastern descent? 12 A. Yes. 13 Q. Is that the same person or different people? 14 A. Actually I have two different teammates, one from Israel 15 and one from another part of the Middle East. 16 Q. Keep your voice up. 17 You have two teammates, one from Israel? 18 A. And one from another part of the Middle East. 19 Q. Do you know what the other country is? 20 A. She lived in Egypt for a while but I think she might have 21 lived somewhere -- actually born somewhere else but I am not 22 sure about that. 23 Q. Okay. 24 Do you have any biases or prejudices about people from 25 the Middle East or any people of Islamic descent? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 361 45LSSAT2 1 A. No, I don't think so. 2 Q. I am sorry? 3 A. No, I don't. I try not to. 4 Q. You mentioned that your knowledge of Islam comes from 5 reading, including books by Islamic writers. Can you tell us 6 anything specifically, any specific books or articles you 7 recall about Islam? I realize you say you are not very 8 knowledgeable. 9 A. Let's see, I think I read recently a book "Reading Lolita 10 In Teheran" by a Iranian writer who taught in a university over 11 there. 12 Q. What was that book about? 13 A. "Reading Lolita In Teheran". It's actually about a book 14 group that she started when someone went over in Teheran. 15 Q. Again, just talk into the microphone. Your voice will 16 carry better. 17 A. Okay. 18 Q. "Reading Lolita," and that was by an Iranian woman who was 19 talking about a book -- 20 A. A book group she started in Teheran after being banned from 21 teaching. It's just a general-interest book. I read just 22 other things that might appear in magazines. 23 Q. All right. 24 As a result of anything that you have read, do you 25 have any biases or prejudices towards any people of the Islamic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 362 45LSSAT2 1 faith? 2 A. No. 3 Q. You mentioned that you think it's quite possible there is a 4 bias against Muslims in the United States by federal law 5 enforcement personnel. 6 What is the basis for that belief? 7 A. I guess I just believe that -- you know, I don't think it's 8 uniform or anything but there can be prejudice against various 9 minority groups among people of any profession and I don't 10 think that law enforcement are any different. 11 Q. If you were chosen as a juror in this case, the issue of 12 why the charges in this case were brought would not be an issue 13 for the jury. The jury is the finder of fact in the case and 14 the jury would be required to determine whether the government 15 has proven the charges in the indictment beyond a reasonable 16 doubt at trial based on the evidence or lack of evidence and my 17 instructions on the law. And if you were chosen as a juror in 18 this case, would you be able to do that? 19 A. I believe so. 20 Q. And would you do that? 21 A. Yes. 22 Q. Is there anything about any of your beliefs about law 23 enforcement that would prevent you from being a fair and 24 impartial juror in the case listening to the evidence or lack 25 of evidence and deciding the case solely on the evidence or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 363 45LSSAT2 1 lack of evidence? 2 A. None. 3 Q. You mentioned that you read a lengthy magazine article in 4 the New Yorker perhaps about Lynne Stewart about a year ago. 5 And that you recall the case haphazardly since then. 6 Can you just explain for me briefly what you recall 7 about the article? 8 A. Let's see. Okay, I recall that the article was partly a 9 profile of Ms. Stewart. It seemed to present her as some kind 10 of iconic -- 11 Q. I am sorry? 12 A. Iconoclastic, is the word I am looking for, lawyer. There 13 seemed to be some speculation in the article that these charges 14 were being brought against her in a punitive way by the 15 government. I don't remember a lot more other than that. But 16 it might not have been in the New Yorker, it might have been in 17 New York Times magazine, one of the things that I read. 18 Q. Okay. 19 You also said that you have followed the case 20 haphazardly since then? 21 A. Yes, before I was put on this jury pool if I saw an article 22 I would say, oh, yeah, that is the case I read about, so I 23 would look at it. 24 Q. What do you recall reading about the case? 25 A. I don't recall a lot except about a few days before I was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 364 45LSSAT2 1 called you ruled that Ms. Stewart would not be allowed to act 2 as a lawyer on her defense team and I remember reading that. 3 Q. All right. 4 Anything else? 5 A. No. Maybe I read some other articles on the restrictions 6 put on the person, the lawyer, the person Ms. Stewart was 7 defending. Maybe I read some articles about that because that 8 seemed like an interesting issue. But I don't really recall 9 anything -- 10 Q. Okay. 11 A. -- more specific than that. 12 Q. Now, I told you in the preliminary instructions of course 13 that the press doesn't always get things right and the press 14 can report things from different perspectives and the issue in 15 the case, the issue in terms of the jury selection, is whether 16 despite anything that you have seen, heard or read, you can be 17 a fair and impartial juror and decide the case based solely on 18 the evidence or lack of evidence. 19 Could you do that? 20 A. I believe so. 21 Q. Do you go into the case with any prejudices in favor or 22 against either the government or any of the defendants? 23 A. I guess I don't have a rooting interest in the case one way 24 or the other. I guess I have some impressions on both sides 25 from what I have read. Does that answer your question? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 365 45LSSAT2 1 Q. Well, it goes part way. 2 You say you have no rooting interest. You are 3 perfectly impartial as to whether at the end of the trial 4 either side will prevail, whether it be the government or any 5 of the defendants? 6 A. Yes, I guess I don't think I know enough about the case to 7 really know one way or the other at this point. I guess a lot 8 of the stuff I have read has raised more questions than it has 9 answered. 10 Q. All right. 11 If you were chosen essentially what you would be asked 12 to do is to say here are the charges in the indictment, they 13 are only charges, has the government proved those charges 14 beyond a reasonable doubt based on the evidence or lack of 15 evidence in the case and my instructions on the law? So what 16 you would be asked to do is to look only at the evidence or 17 lack of evidence. 18 Could you do that? 19 A. Yes, I believe so. 20 Q. And has anything that you have seen or heard or read about 21 the case or about any of the issues in the case made such an 22 impression on you that you doubt that you could follow your 23 oath as a juror and decide the case based solely upon the 24 evidence or lack of evidence and my instructions on the law? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 366 45LSSAT2 1 Q. All right. 2 I believe that you have already answered this, but is 3 there anything else -- you told us in response to the question 4 about Sheikh Abdel Rahman that you think he is in jail for the 5 first World Trade Center bombing and that you knew that Lynne 6 Stewart was his lawyer in that conspiracy case. Is there 7 anything else -- and you also point out that you read about the 8 restrictions. 9 Is there anything else that you recall reading about 10 sheikh rock man? 11 A. Yes, I know that there has been a lot of security concerns 12 about eating involving him. I have read about those. 13 Q. Okay. Again, the same questions with respect to what you 14 read about sheikh rock man, is there anything about that that 15 would prevent you from being a fair and impartial juror in this 16 case? 17 A. No, I don't think so. 18 Q. Do you have any doubts about that? The reason I ask that 19 is when you say "I don't think so" people express themselves 20 differently and so would anything that you have seen, heard or 21 read about sheikh rock man affect your ability to be a fair and 22 impartial juror in this case? 23 A. No. 24 Q. You mentioned that you have discussed this case with your 25 husband several months ago. Do you recall the substance of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 367 45LSSAT2 1 that conversation? 2 A. It was after we both read that article. 3 Q. The article that you think is in the New York Times? 4 A. Or the New Yorker somewhere, yes. He just had a bad 5 impression of Ms. Stewart after reading that article and so we 6 talked about that for a bit. 7 Q. He did? 8 A. Yes. 9 Q. What was your impression? 10 A. More mixed, that I could see why he thought what he thought 11 but I didn't really share his impression. 12 Q. All right. 13 And I have asked you about the publicity and is there 14 anything about that publicity that would prevent you from being 15 a fair and impartial juror in this case? 16 A. No. 17 Q. One of the things that you would have to do if you were 18 chosen as a juror in this case is not to talk to your husband 19 about this case. 20 Do you understand that? 21 A. Yes, I do. 22 Q. And you could tell your husband that you were a juror in a 23 long trial but that is it. 24 Do you understand that? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 368 45LSSAT2 1 Q. And would you do that? 2 A. If he started to discuss the case can I say I can't talk 3 about this with you? 4 Q. Could you say stop it, I can't talk about the case I am 5 sitting on. The judge has ordered me. 6 A. I can tell him I am on this case? 7 Q. No, you just tell him I am on a long trial and the judge 8 has told us we cannot talk about it. 9 A. Okay. 10 Q. That is the rule. 11 A. Okay. 12 Q. And will you do that? 13 A. Sure. 14 Q. Let me explain why that is important for a moment. You 15 really don't want anyone talking to you about the case. You 16 don't want someone to give you any opinions, thoughts about the 17 case. You want to preserve your absolute impartiality by just 18 listening to the evidence or lack of evidence and not having 19 any other input from anyone else on that. And so I am 20 perfectly serious when I tell you that if anyone should try to 21 talk to you about the case or anything like that, the answer 22 is, you know, stop it. I mean, the judge has told me I am on a 23 criminal jury. It's one of the most awesome responsibilities 24 that I can perform as a citizen and I am not to talk about it, 25 period. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 369 45LSSAT2 1 Will do you that? 2 A. Yes. 3 Q. All right. 4 You mentioned that you know Adam Cohen as an art 5 historian. Do you know where Adam Cohen lives? 6 A. He was in Baltimore the last I knew, the Adam Cohen I know. 7 Q. Baltimore? 8 A. Yes. 9 Q. Are you friends with Adam Cohen in Baltimore? 10 A. Well, no, I don't keep up with him. I am a former 11 classmate with him. 12 Q. Okay. 13 I don't know, frankly, if it's the same Adam Cohen or 14 not. If by chance that Adam Cohen name came up or if that Adam 15 Cohen turned out to be a witness in this case, would that 16 prevent you from being a fair and impartial juror? 17 A. No. 18 Q. Again, I don't know if Steve Newman is the same Steve knew 19 man. 20 A. May I interrupt, it was a Steve Noonan that I knew. I 21 looked it up after I filled out the sheet. 22 Q. Okay. 23 You were very frank in saying that it would be 24 difficult to not look at or listen to anything to do with the 25 case and not to discuss the case but then you said you would do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 370 45LSSAT2 1 it nonetheless. 2 A. Yes. 3 Q. And so let me ask you -- and I have gone through this with 4 you. 5 If you were chosen as a juror I would tell you you 6 can't look at or listen to anything to do with the case. You 7 can't to anyone about the case. And if you should see 8 something you should do exactly what you did with the other 9 article, you just turn away. 10 Would you do that? 11 A. Yes. 12 Q. If you were chosen as a juror in this case would you decide 13 the case based solely upon the evidence or lack of evidence and 14 my instructions on the law? 15 A. Yes. 16 Q. As you can tell from all of my questions the fundamental 17 issue is whether there is anything in your personal history or 18 life experience that would prevent you from acting as a fair 19 and impartial juror in this case. So let me ask you one final 20 time whether there is anything, whether I have asked you about 21 it specifically or not, that would prevent you from being a 22 fair and impartial juror in this case? 23 A. No. 24 Q. Okay. Could you step out just for a moment. 25 (Juror absent) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 371 45LSSAT2 1 MR. BARKOW: Your Honor, several areas of inquiry that 2 we would ask the court follow up on. 3 First of all, this juror stated that she had a serious 4 economic hardship. The court asked her questions about her 5 vacation which came up in her answers, but she put in her 6 questionnaire she has serious economic hardships. She is a 7 freelancer. 8 THE COURT: No, question 1A, would serving on this 9 jury -- oh, I see. 10 All right. I will ask her. 11 MR. BARKOW: Because she is a self-employed freelancer 12 according to question 14. 13 THE COURT: All right. 14 MR. BARKOW: Then on the substance of the questioning, 15 your Honor, a few areas that we would ask you follow up on. 16 First, with respect to her impressions of the case, 17 she was asked about her impressions specifically of the article 18 in the New York magazine or New York Times magazine but prior 19 to that she had said she had impressions of both sides and we 20 have not yet heard her say what her impression is of the 21 government in this case. 22 She also said she had a mixed impression of Ms. 23 Stewart and didn't entirely agree with her husband but I at 24 least am not clear what her impression is of Ms. Stewart based 25 on all the knowledge that she has of this case, which is quite SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 372 45LSSAT2 1 substantial compared to the other jurors I have heard at least. 2 She also said that she read that there was the idea 3 out there, or something like that, that charges were brought in 4 a punitive way. I think that was in reference to the New 5 Yorker or New York Times magazine article, and we ask the court 6 follow up and ask what she means by that and what her 7 impression is of the punitive way in which the charges may or 8 may not have been brought in. 9 And then, finally, in response to one of her last 10 questions when she was asking about her communications with her 11 husband, it was my impression at least that what she was asking 12 is if her husband asks her something about Ms. Stewart, for 13 example, without reference to her jury service, he wouldn't be 14 asking what kind of case are you on but he might himself read 15 in the newspaper something about this trial and then just in 16 conversation, not knowing what case she is on, might just say 17 did you read about the Lynne Stewart trial or did you read 18 about that trial that is going on, and I think my impression 19 was she was asking what does she say to that specific question 20 rather than the general question what kind of case are you on. 21 So I would ask that the court follow up and ask her 22 that because I believe that is what she was getting at. 23 MR. TIGAR: Your Honor, based on the criteria that has 24 been used throughout, I heard your Honor ask her a number of 25 questions about the New York Times article and go into it quite SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 373 45LSSAT2 1 fully, that her husband had a different impression. She said 2 what she thought and at the end of you qualified her not once, 3 twice, but three times after going through all of that. 4 I thought, your Honor -- and if I have already 5 prevailed I won't keep talking. But my thought, your Honor, is 6 with respect to a juror who is clearly well educated and widely 7 read, who understands what your Honor is talking about and says 8 I will follow it, there is a risk by continuing going back over 9 the same thing that other influences creep into the juror's 10 mind as a result of continuing the process beyond the point 11 where it's yielding good information. 12 THE COURT: I will ask a couple of more questions and 13 follow up for both sides but I share some of those concerns. I 14 really did explore with her in quite some detail what her 15 impressions were and her discussions with her husband and what 16 she had read and how she came away and whether she goes in with 17 any preference for either side and whether she can be fair and 18 impartial and it's clear so far at the end of the day that this 19 is not a challenge for cause and I have developed lots of 20 information for the parties to exercise their peremptories. 21 There are a few other things that I will pursue, 22 including the economic hardship and whether she fully 23 understands about what her communications with her husband are. 24 And I will touch again on the article. 25 MR. DEMBER: Your Honor, we appreciate you asking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 374 45LSSAT2 1 those questions but it's clear that this juror, different than 2 any other juror we have seen so far, has far more knowledge and 3 has more exposure and has read more about the case than any 4 other juror and she has indicated having impressions and 5 obviously I think whether it's for cause or peremptory 6 challenge down the road, we are entitled to know what her 7 impressions are of either side. 8 THE COURT: All right, let's bring her in. 9 (Juror present) 10 BY THE COURT: 11 Q. Just a couple of other questions. 12 You mentioned that this case would not be a serious 13 hardship for you but that it would be an economic hardship. 14 Could you just tell me what the economic hardship 15 would be? 16 A. Oh, I work freelance so it would take time away from 17 working. 18 Q. It would infringe some on your freelancing because of the 19 time you spend here? 20 A. Right. 21 Q. But we don't sit on Fridays, and we don't sit on weekends, 22 and you would be done at 4:30. 23 And that would not be a serious economic hardship for 24 you, is that right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 375 45LSSAT2 1 Q. I touched a couple of times on your conversations with your 2 husband and what might happen if you were chosen as a juror in 3 the case. 4 Now, you understand that if you were chosen as a juror 5 in the case, you could not talk about the case or anything to 6 do with it, do you understand that? 7 A. I do. Can I talk about the conditions of my jury service, 8 you know? 9 Q. You could talk about the fact that you were a juror in a 10 long trial and it's still going on, period. 11 A. Okay. 12 Q. And the judge has told you not to talk about the case. 13 A. Okay. Speculation about when it might end? 14 Q. You could say it's a long trial, a 4- to 6-month trial. 15 But you can't talk about what case it is and what the substance 16 of it is. 17 A. Right. 18 Q. Do you understand that? 19 A. I do. 20 Q. And, similarly, if something came up about anything to do 21 with the case, even if it didn't arise solely with respect to 22 the case, for example, if your husband for any reason wanted to 23 talk about one of the parties or one of the lawyers in the 24 case, you would say I am sorry, I can't talk about that. You 25 just can't start on a path that would lead to the inevitable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 376 45LSSAT2 1 follow-up questions, do you follow that? 2 A. I do. 3 Q. And will you follow my instructions on that? 4 A. Yes. 5 Q. All right. 6 You also told us that you have read about the case. 7 You read the article in either the New York Times magazine or 8 the New Yorker. As you sit as a potential juror in this case, 9 do you have any fixed impression about the case? 10 A. My biggest impression is just that it involves a lot of 11 complicated issues, you know, and that I would have to have 12 more information about that to actually have a fixed 13 impression. 14 Q. Okay. 15 Is there anything that you have seen or heard or read 16 or discussed with your husband that would prevent you from 17 doing an exactly what you said you would have to do, listen to 18 the evidence or lack of evidence, and my instructions on the 19 law, and decide the case solely on that? 20 A. No, there is nothing that would do with that. 21 Q. Okay. 22 Could you step out just for a moment. 23 (Juror absent) 24 THE COURT: I intend to ask the juror to come back on 25 June 18. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 377 45LSSAT2 1 Okay. No further questions, all right. 2 (Juror present) 3 BY THE COURT: 4 Q. Juror 76, you are still in the jury selection process. You 5 will be asked to call back on June 18th and please, please 6 remember my -- and Mr. Fletcher will give you a slip of paper. 7 Please remember my continuing instructions. Please 8 don't talk about the case or anything or anyone with anything 9 to do with it. Remember always to keep an open mind until if 10 you are selected as a juror you have heard all of the evidence, 11 on to the jury room and begun your deliberations. Remember 12 don't look at, listen to, read anything in connection with the 13 case. All right? 14 A. Am I a juror or not or I have to call and find out? 15 Q. Right. You are continuing in the jury selection process. 16 There is nothing that is going to happen between now and June 17 18, so June 18 you have got to call in. 18 What I just emphasize to you is that you have to 19 continue to follow all of my instructions in the same way that 20 you have been doing, all right? 21 A. Yes. 22 Q. Great, okay. Have a good day. 23 (Juror absent) 24 THE COURT: 78. 25 MR. TIGAR: We now have from the net a copy of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 378 45LSSAT2 1 Staten Island Advance article about the demonstration in front 2 of the courthouse and the picture of the blood drenched -- 3 THE COURT: Please don't hold it up. For all I know 4 someone else will be walking into the courtroom. 5 Let's take it up at the break. 6 (Pause) 7 THE COURT: 79. 8 (Juror present) 9 BY THE COURT: 10 Q. Please have a seat in the first chair over there. 11 Good morning, Juror 79. 12 A. Good morning. 13 Q. Let me ask you some preliminary questions before I turn to 14 the follow-up questions on the questionnaire. 15 Since you were here last has anything changed 16 concerning your ability to serve as a juror in this case or has 17 anything occurred to you that may affect your ability to be a 18 fair and impartial juror in this case? 19 A. No. 20 Q. It now appears that the final jury will only be chosen on 21 Monday, June 21st. So after today it's unlikely that you will 22 be asked to call in or come back before June 18th. Does that 23 present any serious hardship for you? 24 A. 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 379 45LSSAT2 1 Q. Since you were here last have you spoken to anyone about 2 this case or have you looked at or listened to anything about 3 the case? 4 A. No. I told my employer that if I was chosen to be on the 5 jury it would be an extended period. That is it. 6 Q. Okay. 7 You didn't tell him anything about the case other than 8 it's a long case? 9 A. No. 10 Q. And has anyone spoken to you about the case? 11 A. About the particulars, people have tried to pump me for 12 information about what it's about but I didn't say anything. 13 Q. Okay. 14 You just told them it's a long case? 15 A. I told them that I swore an oath not to speak about it. 16 Q. You did exactly right. 17 Have you spoken or overheard any conversations of any 18 other prospective jurors about the case? 19 A. No. 20 Q. You indicated that you are employed full-time by a federal 21 agency. Without telling us the specific employer, can you just 22 tell me what the general nature of the agency is? What does it 23 do? 24 A. What does it do? It's involved in deliveries. 25 Q. Okay. It's not any federal law enforcement agency? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 380 45LSSAT2 1 A. No. 2 Q. Okay. 3 And what do you do for that agency? 4 A. I work on the outside delivering packets. 5 Q. All right. 6 In a criminal case the case is brought in the name of 7 the United States, but all parties are equal in court and the 8 fact that the government is a party in the case entitles the 9 government to no greater or lesser deference than any other 10 party in the case. Do you understand that? 11 A. Yes, I do. 12 Q. And will you follow that instruction? 13 A. Yes. 14 Q. You mentioned that your brother was in the Army, that he 15 was a medic. Is he currently in the Army? 16 A. No. 17 Q. When did he cease to be in the Army? 18 A. Approximately 1979. 19 Q. Okay. 20 Anything about your brother's military service that 21 would prevent you from being a fair and impartial juror in this 22 case? 23 A. No. 24 Q. You mentioned that you had a former co-worker who served in 25 operation Desert Storm. Is there anything about that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 381 45LSSAT2 1 would prevent you from being a fair and impartial juror in this 2 case? 3 A. No. 4 Q. You mentioned that you served on a couple of different 5 juries. Let me just go through those with you. You served on 6 a criminal jury, a trial jury and a civil trial jury or just a 7 grand jury? 8 A. Yes, the grand jury I believe dealt with criminal cases. 9 Q. Okay. And you served on a civil trial jury? 10 A. Yes. 11 Q. Could you keep your voice up and speak into the microphone? 12 A. Sure. 13 Q. Thanks. 14 Let me start with the civil trial jury. 15 When was that? 16 A. That would be about 4, 5 years ago. 17 Q. Okay. And was that in state or federal court? 18 A. That would be state court. 19 Q. And what was the case about? 20 A. It was about police brutality. 21 Q. And did the jury reach a verdict in that case? 22 A. Yes, it did. 23 Q. And you have also served on a grand jury and about when was 24 that? 25 A. 2 years ago. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 382 45LSSAT2 1 Q. And that was a federal grand jury? 2 A. To the best of my recollection, yes. 3 Q. Was it in this courthouse? 4 A. I think it was 100 Centre Street. 5 Q. Okay. That is the state court over there. Okay. 6 And how long did you serve on the state grand jury? 7 A. One month. 8 Q. Did you serve 30 days or more or less? 9 A. I think it was exactly 30 days. 10 Q. You are not seeking an excuse or deferral from this jury 11 service based on that jury service, are you? 12 A. No, I am not. 13 Q. Now, is there anything about your experience with your 14 civil trial experience and with your grand jury experience and 15 with all of the participants in that process that would prevent 16 you from being a fair and impartial juror in this case? 17 A. No. 18 Q. You understand that what a grand jury does is the grand 19 jury returns indictments. Indictments are only charges. The 20 standard for returning an indictment is different from the 21 standard to be employed at trial. 22 Do you understand that? 23 A. Yes. 24 Q. And if you were chosen as a juror in this case, you would 25 have to follow the instructions that, first of all, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 383 45LSSAT2 1 indictment is only a charge. It's not evidence. And, second, 2 as a juror in this case you would have to decide this case 3 based solely on the evidence in this case or the lack of 4 evidence, and my instructions on the law. And one of those 5 instructions will be that the government is required to prove 6 the charges in the indictment beyond a reasonable doubt at 7 trial. 8 Do you understand that? 9 A. Yes, I do. 10 Q. And will you follow all of those instructions? 11 A. I will. 12 Q. Could you just tell me what you mean when you said one of 13 your hobbies or interests is that you follow politics? What 14 did you mean by that? 15 A. Well, I mean that in the respect that it's entertaining as 16 well as serious and I enjoy it. 17 Q. Okay. 18 Is there anything about your following politics that 19 would prevent you from being a fair and impartial juror in this 20 case, listening to the evidence and determining whether the 21 charges were proved beyond a reasonable doubt? 22 A. I don't believe there would be. 23 Q. Do you have any reason to doubt your ability to be a fair 24 and impartial juror in this case and decide this case based 25 solely on the evidence or lack of evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 384 45LSSAT2 1 A. No. 2 Q. You mentioned that you had a prior experience with the law 3 as a defendant years ago, and you mentioned that you wanted to 4 do that in private. 5 A. Yes, I can waive that. 6 Q. Okay. 7 Now, tell me, was that a misdemeanor? 8 A. Yes. 9 Q. All right. 10 Were you represented by a lawyer in that case? 11 A. Yes, by a public defender. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 385 45LLSAT3 1 BY THE COURT: 2 Q. Okay, that's almost 30 years ago. 3 A. Yes. 4 Q. Is there anything about that experience and your reactions 5 to it, to the prosecutor, to the defense attorney, to law 6 enforcement, to the judge, anything about that experience that 7 would prevent you from being a fair and impartial juror in this 8 case? 9 A. No. 10 Q. You mention that you involved in an auto accident and that 11 you sued someone as a result of that? 12 A. Yes. 13 Q. Did that case go to trial? 14 A. Yes, it did. 15 Q. Did the jury reach a verdict in that case? 16 A. Yes, it did. 17 Q. And you were represented by a lawyer in that case? 18 A. Yes. 19 Q. Is there anything about that lawsuit and your reactions to 20 it that would prevent you from being a fair and impartial juror 21 in this case? 22 A. No. 23 Q. You also mention that you were sued as a result of another 24 auto accident, and did that case go to trial? 25 A. No, it did not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 386 45LLSAT3 1 Q. That was settled before trial? 2 A. Yes. 3 Q. And you were represented by a lawyer in that case? 4 A. Yes. 5 Q. Is there anything about that experience that would prevent 6 you from being a fair and impartial juror in this case? 7 A. No. 8 Q. You also talked about the penalty for the misdemeanor case 9 that you described earlier. Is there anything about that 10 penalty that would prevent you from being a fair and impartial 11 juror in this case? 12 A. No. 13 Q. You mention that your stepfather's nephew is a lawyer, but 14 you didn't know if he was practicing. Do you have much contact 15 with that person? 16 A. I do not. 17 Q. Do you have any idea what kind of law it was that he did? 18 A. The last time I was in contact with him, he was doing real 19 estate law. 20 Q. Okay. How long ago was that? 21 A. 18 years ago. 22 Q. Okay. You mention that you had a close friend who applied 23 to be a postal inspector, that's the person that you were 24 referring to as a person that you know who is employed by or 25 seeking employment with a federal or state investigative SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 387 45LLSAT3 1 agency? 2 A. Yes. 3 Q. Has that person gotten that job, do you know? 4 A. No, he has not. 5 Q. And the application is no longer current or? 6 A. Right. 7 Q. Anything about that that would prevent you from being a 8 fair and impartial juror? 9 A. No. 10 Q. You mention that you had a friend who had a bad experience 11 with a lawyer in connection with the loss of SSI -- well, loss 12 of an inheritance, correct? 13 A. Yes. 14 Q. Is there anything about that experience that would prevent 15 you from being a fair and impartial juror in this case? 16 A. No. 17 Q. There are obviously lawyers for the government, for the 18 defendants, and one of the defendants is a lawyer. Is there 19 anything about the involvement of lawyers in this case that 20 would prevent you from being a fair and impartial juror in this 21 case? 22 A. No. 23 Q. You mention that you had a long time friend born in Egypt 24 who went back for a visit a few years ago. What was the 25 purpose for that visit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 388 45LLSAT3 1 A. To see his parents. 2 Q. When did your friend go back? 3 A. Approximately three years ago. 4 Q. Anything about that that would prevent you from being fair 5 and impartial in this case? 6 A. No. 7 Q. Did you discuss with your friend his trip to Egypt? 8 A. Yes. 9 Q. Could you just tell me generally what you talked about? 10 A. We talked about his parents and his relationship with his 11 parents, how it might have changed over the intervening years. 12 How his daughter, whom he took with him, enjoyed the trip. And 13 his relationship and meetings with his siblings. That's about 14 it. 15 Q. Okay. Do you have any biases or prejudices against people 16 from the -- of Middle Eastern descent or any people of the 17 Islamic faith? 18 A. No. 19 Q. You said that you were somewhat knowledgeable about Islam. 20 Based on history class at Hunter and personal reading and 21 discussions with your friend, is there anything about any of 22 those discussions or readings that leads you to be prejudiced 23 or biased with respect to people of the Islamic faith? 24 A. No. 25 Q. Are there any particular books or articles that you recall SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 389 45LLSAT3 1 reading about Islam? 2 A. Well, the textbook we used was called The History of the 3 Middle East. That's about it. 4 Q. Very good. Okay. You mention that you had -- with respect 5 to anything you had seen or heard or read about any of the 6 defendants, you said that you saw part of an interview with 7 Ms. Stewart on 60 minutes. Can you tell us what you recall 8 about that? 9 A. Yes. Well, I believe that was 60 minutes. It was awhile 10 ago, and as is my usual habit, I -- as I indicated on my 11 questionnaire, I play guitar, I practice the guitar while I 12 watch TV, so I was not paying full attention. But to answer 13 your question to the best I can, I -- 14 Q. Please keep your voice up. 15 A. -- I remember her demeanor and the way she came across, 16 presenting herself. And I remember very little of the 17 specifics of what she said, just the fact that she came across 18 as someone who was a free thinker, following what she thought 19 was right. 20 Q. All right. 21 A. That's it. That's it. 22 Q. Okay. Is there anything about that interview or your 23 impressions from that interview, that would prevent you from 24 being a fair and im partial juror in this case? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 390 45LLSAT3 1 Q. You understand that if you were called as a juror, you 2 would have to decide the case based solely on the evidence or 3 lack of evidence that was presented in court? 4 A. Yes. 5 Q. And would you do that? 6 A. I would. 7 Q. Is there anything about that interview that would prevent 8 you from doing that, anything that you saw or heard? 9 A. No. 10 Q. You also mention that you had heard about Sheikh Abdel 11 Rahman. Tell me what you heard about Sheikh Abdel Rahman? 12 A. I heard that or probably read that he was arrested and 13 convicted on -- well, I believe he was convicted, but arrested 14 on either conspiracy to insight terrorist activities or 15 actually involvement directly in them. That is about the 16 extent of my knowledge of the sheikh. 17 Q. Okay. And just as I went over the questions with you 18 before about what you had seen, heard or read about any of the 19 defendants in the case, do you understand that if you were 20 chosen as a juror, you would have to decide this case based 21 solely on the evidence or lack of evidence in this case, and 22 you couldn't base your decision on anything that you had seen, 23 heard or read? Do you understand that? 24 A. Yes, I do. 25 Q. And would you do that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 391 45LLSAT3 1 A. Yes. 2 Q. And can you do that? 3 A. Yes. 4 Q. Would you listen to the evidence and decide this case based 5 solely on the evidence or lack of evidence presented here in 6 court? 7 A. Yes. 8 Q. You also told us that -- and you were -- in response to 9 another question, that you were -- that you had read something 10 about this case. Tell me in your own words what you recall 11 reading about this case? 12 A. I remember reading solely about the defendant who is an 13 attorney being accused by the government of illegally passing 14 messages from her client to outside sources. That is basically 15 the extent of my knowledge of this case. 16 Q. Okay. Now, I told you in my preliminary instructions in 17 the other courthouse that first of all, everything that you -- 18 that the press publishes may not be accurate, for many reasons. 19 The reporters may try very hard, but they may not get it right. 20 And second, I've also told you that the charges in the 21 indictment are only charges, and I've explained to you in 22 general what the case was about, but I've stressed that charges 23 are not evidence, they're simply the way in which a case is 24 brought. And it's up to the jury to determine whether the 25 government has proved the charges beyond a reasonable doubt at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 392 45LLSAT3 1 trial based on the evidence or lack of evidence. And you -- 2 would you do that? 3 A. Yes. 4 Q. And would you follow the instructions that I've explained 5 to you? 6 A. Yes. 7 Q. And can you do that, despite anything that you've seen, 8 heard or read about the case or about anyone connected with it? 9 A. I believe I'm able to do that, yes. 10 Q. Do you have any doubt about your ability to do that? 11 A. No. 12 Q. In following up, you indicated that you recalled an 13 incident with respect to your stepfather and it wasn't clear to 14 me whether your stepfather was actually charged with a crime as 15 a result of that situation. Was he? 16 A. I can't say -- I believe he must have been, because when I 17 discussed it with him afterwards, he told me that he was 18 arrested, led away in handcuffs, and that the police were 19 sympathetic but it was part of the procedure, and, so, that was 20 it. 21 Q. And you indicated that the case was -- that you thought his 22 case was dismissed. But you also indicated that the judge took 23 the most lenient course of action. So do you really recall 24 what happened in the case? 25 A. No, I was not there, but in discussing it with my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 393 45LLSAT3 1 stepfather, and again this is 18 years ago, I don't recall him 2 being fined or jailed. So that's what led me to believe it was 3 dismissed. 4 Q. Do you have any biases or prejudices for or against the 5 government, the defendants, or any lawyers involved in the 6 process as a result of that incident involving your stepfather? 7 A. No. 8 Q. Would that incident affect you at all in your ability to be 9 a fair and impartial juror? 10 A. No, it wouldn't. 11 Q. If you were chosen as a juror in this case, you would be 12 required to decide the case based solely on the evidence or 13 lack of evidence in accordance with my instructions on the law. 14 Will you do that? 15 A. I will. 16 Q. And as you can tell from all of my questions, the 17 fundamental issue is whether there is anything in your personal 18 history or life experience, whether I've asked you about it 19 specifically or not, that would prevent you from being a fair 20 and impartial juror. So let me ask you one final time whether 21 there's anything, whether I've asked you about it specifically 22 or not, that would prevent you from being a fair and impartial 23 juror in this case? 24 A. I don't believe there is any issue in my past that would 25 prevent me from being a fair and impartial juror. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 394 45LLSAT3 1 Q. Lube a fair and impartial juror in this case? 2 A. Yes. 3 Q. All right. Could you step out for a moment? 4 (Juror absent) 5 THE COURT: June 18th? June 18th. No further 6 questions; no challenges. Let's bring in Juror 79. 7 (Juror present) 8 BY THE COURT: 9 Q. Hi, Juror 79. You're still involved in the jury selection 10 process. You'll be asked to call back on June the 18th. 11 Mr. Fletcher will give you a slip of paper indicating to you 12 how to call back and all. Please remember to follow my 13 continuing instructions: Please, don't talk about this case at 14 all or anything to do with it. Remember not to look at or 15 listen to anything to do with the case. If you should see 16 something, just turn away. 17 And remember, as I'll tell the jurors who are finally 18 selected, please keep an open mind until you've heard all of 19 the evidence, I've instructed you on the law, and you've gone 20 to the jury room to begin your deliberations. Fairness and 21 justice requires that you do that. All right? 22 A. Yes. 23 Q. All right. Thank you. Have a good day. 24 A. Thank you. 25 (Juror absent) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 395 45LLSAT3 1 THE COURT: Juror Number 82. 2 (Juror present) 3 BY THE COURT: 4 Q. Good morning. 5 A. Right here, Sir? 6 Q. Right there. Thank you. Good morning, Juror 82. 7 A. Good morning. 8 Q. It's good to see you. Since you were here last, has 9 anything changed concerning your ability to serve as a juror in 10 this case or has anything occurred to you that may affect your 11 ability to be a fair and impartial juror in this case? 12 A. I do have a vacation planned in July. 13 Q. When in July? 14 A. Let's see, July 9th, the 10th and the following week. 15 Q. Can that vacation be cancelled or -- the first day of jury 16 selection now is going to be June the 21st. So you won't need 17 to be here until June the 18th, or call in. So you would be 18 off between now and June the 18th. But come June the 21st, we 19 would be on trial for four to six months. So -- 20 A. If push came to shove, I could cancel it, yeah. 21 Q. And would that cause I serious hardship for you? 22 A. No, it wouldn't. 23 Q. Okay. Since you were here last, have you spoken to anyone 24 about the case or have you looked at or listened to anything 25 about the case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 396 45LLSAT3 1 A. No, I haven't. 2 Q. Has anyone spoken to you about the case? 3 A. No, they haven't. 4 Q. And that includes any conversations here at the courthouse 5 or with any other prospective jurors? 6 A. None whatsoever. 7 Q. While you were waiting with the other prospective jurors, 8 did you or anyone you overheard discuss the case? 9 A. No. 10 Q. You indicated that your -- that the highest level of 11 education that your spouse or significant other received was a 12 two-year college graduate, but you indicated that it was 13 private. Is there some reason that you can't just tell me what 14 it is? 15 A. I'm sorry, private? College? 16 Q. Oh, I must have mis -- you indicated that the highest level 17 of education that your significant other received was a 18 two-year college graduate. 19 A. Oh. 20 Q. And you had indicated that it was private. Were you 21 referring to the fact that the college was private? 22 A. Oh, no, no. It wasn't a private college. She went to 23 Alfred. 24 Q. Alfred. 25 A. Yeah. Maybe I misunderstood it, Sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 397 45LLSAT3 1 Q. I may have misunderstood. And you were asked if you 2 belonged to a union, and you said yes. Could you tell me the 3 name of the union? 4 A. It's just changed names, so I'm not sure, but the former 5 union was the OCAW, Local 179. But now we've merged with -- I 6 believe it's PACE, paper -- something something, union. 7 Q. Okay. You mentioned that both you and your brother were in 8 the infantry. When were you in the Army? 9 A. I was in the Army from 1969 to 1971. 10 Q. And when was your brother in the Army? 11 A. My brother was in I believe from '66 to '68. 12 Q. And you -- okay. And your brother was in combat duty? 13 A. Yes, he was. 14 Q. Is there anything about those experiences that would 15 prevent you from being a fair and impartial juror in this case? 16 A. No, there isn't. 17 Q. You indicated that you had an Article 15 when you were 18 in -- 19 A. Yeah, I disobeyed an order. I didn't want to march. They 20 wanted me to march, and I didn't. So I got an Article 15. 21 That's like getting written up. 22 Q. Okay. Did it have any penalty attached? 23 A. I lost a stripe, yes. 24 Q. Is there anything about that that would prevent you from 25 being a fair and impartial juror in this case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 398 45LLSAT3 1 A. No, it happens. It's in the past. 2 Q. You indicated that you served on one jury which was a 3 criminal case up in White Plains? 4 A. Yes. 5 Q. That was a trial jury, right? 6 A. Yes, it was. 7 Q. Did the case go to verdict? Did the jurors actually -- 8 don't tell me what the verdict was -- but? 9 A. I believe we were going to verdict and there was a plea 10 made. 11 Q. Okay. Is there -- how long did you -- 12 A. No, I'm sorry, let me correct myself. No, there was a 13 verdict, yes, there was. 14 Q. And did you participate in the deliberations? 15 A. Yes, I did. 16 Q. Is there anything -- how long did you serve at that time? 17 A. About three weeks, if that. 18 Q. Okay. And that was sometime in 2000? 19 A. I believe so, Sir. 20 Q. You're not seeking any deferment based on that? 21 A. No. 22 Q. Is there anything about that jury experience that would 23 prevent you from being a fair and impartial juror in this case? 24 A. No, there isn't. 25 Q. You had indicated that your -- that you or someone close to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 399 45LLSAT3 1 you had been in prison, and then in response to another 2 question, you pointed out an incident involving your brother. 3 Is that the -- that's the same incident? 4 A. The same incident, yes. 5 Q. And when was your brother convicted? 6 A. Let's see, this is 2003 -- about 15 years ago. 7 Q. All right. And how much time did your brother serve? 8 A. I believe he did three years. 9 Q. And is there anything about that experience that would 10 prevent you from being a fair and impartial juror in this case? 11 A. No, there isn't. 12 Q. You pointed out that your aunt was the director of human 13 rights? 14 A. Commissioner. 15 Q. Oh, okay. Is there anything about -- in the past, not 16 currently; is that right? 17 A. In the past, she's retired. 18 Q. Okay. Is there anything about that experience that would 19 prevent you from being a fair and impartial juror in this case? 20 A. No, Sir. 21 Q. You point out that you have worked with people of Middle 22 Eastern descent. You have a coworker. Do you know where the 23 coworker, what -- 24 A. No, I don't. 25 Q. Just, you know your coworker is of Middle Eastern descent? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 400 45LLSAT3 1 A. Yes. 2 Q. Do you have any biases or prejudices toward people from the 3 mid east or people of the Islamic faith? 4 A. I have biases against no one, Sir. 5 Q. Okay. Thank you, Sir. You mention that you have heard the 6 names of the defendants on the news. Can you recall what, if 7 anything, you heard about the defendants? 8 A. I can't recall, because it was awhile ago. 9 Q. Is there anything about anything you've seen or heard or 10 read that would prevent you from being a fair and impartial 11 juror in this case? 12 A. No, there isn't. 13 Q. If you were chosen as a juror in this case, you would be 14 required to decide the case based solely on the evidence or 15 lack of evidence and my instructions on the law. Will you do 16 that? 17 A. Yes, Sir. 18 Q. As you can tell from all of these questions, the 19 fundamental issue is whether there's anything in your personal 20 history or life experience that would prevent you from being a 21 fair and impartial juror in this case. So let me ask you one 22 final time, whether there's anything, whether I've asked you 23 about it specifically or not, that would prevent you from being 24 a fair and impartial juror in this case? 25 A. No, there isn't. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 401 45LLSAT3 1 Q. Okay. Thank you, Sir. Could you step out for a moment? 2 (Juror absent) 3 MR. TIGAR: Your Honor, please follow up on its 4 brother situation. Did he attend the trial? Was he satisfied 5 with the lawyers? Did he form an impression of the lawyers? 6 Did he visit his brother in prison? 7 THE COURT: All right. You know from his answer 8 that -- I mean, I'll ask, but he's quite forth right in his 9 answer. 10 MR. TIGAR: Yes, your Honor. I understand that. 11 THE COURT: All right. Okay. 12 MR. DEMBER: Your Honor just noticed in the 13 questionnaire the juror didn't indicate what the occupations of 14 his children are, I omitted that -- I didn't see it myself when 15 I prepared the questions. Can you ask him what their 16 occupations are. 17 THE COURT: Sure, and if these don't produce anything 18 I'll ask him to come back on June the 18th. 19 (Juror present) 20 BY THE COURT: 21 Q. Hi. I had just a couple of follow up questions: Could you 22 tell me with respect to each of your children if they're 23 currently employed and what they do? And I'll go through them, 24 make it easier for you. You have a daughter who's 35? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 402 45LLSAT3 1 Q. And what does she do? 2 A. She's a housewife. She's raising four children. 3 Q. Okay. And you have a daughter who's 27? 4 A. She's a mother of three. She works five days a week. Do 5 you want to know where she works or. 6 Q. No, I don't want to know where I just want to know what 7 kind of work she does? 8 A. She's a -- let's see. Works in receiving. 9 Q. Works in? 10 A. Receiving. 11 Q. Receiving? 12 A. Yes. Shipping and receiving. 13 Q. Okay. And you have a daughter who is 24? 14 A. Yes. 15 Q. What does she do? 16 A. She works with developmentally disabled kids, or 17 challenged. 18 Q. All right. And you have a stepson who's 34? 19 A. Yes. 20 Q. And what does he do? 21 A. He owns his own business. 22 Q. What kind of business? 23 A. Photography. 24 Q. Okay. You described your brother's conviction. Did you 25 visit your brother when he was in prison? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 403 45LLSAT3 1 A. Yes, I did visit once. 2 Q. And is there anything about that situation with your visits 3 to the prison, your reactions to any of the lawyers in that 4 case, the government, the defense lawyers, the judge, anything 5 about that situation that would prevent you from being a fair 6 and impartial juror in this case? 7 A. No, Sir. 8 Q. All right. Juror Number 82, you're still involved in the 9 jury selection process. I'll ask you to call in on June the 10 18th for further information. Mr. Fletcher will give you a 11 note of who to call and what the number is and all. 12 A. Okay. 13 Q. And I ask you to please follow my continuing instructions. 14 Please, don't talk about this case at all or anything or anyone 15 who has anything to do with it. Remember not to look at or 16 listen to, or read anything to do with the case? 17 A. Yes, Sir. 18 Q. If you see anything, just turn away. And remember to keep 19 an open mind, I'll tell the jurors, until you're selected as a 20 jury, you've heard all of the evidence, I've instructed you on 21 the law, and you've gone to the jury room to begin your 22 deliberations. 23 A. Yes, Sir. 24 Q. Have a good day. 25 A. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 404 45LLSAT3 1 (Juror absent) 2 THE COURT: Juror Number 84. 3 MR. TIGAR: Your Honor, will we be taking a morning 4 break? 5 THE COURT: All right. We'll take -- certainly -- 6 MR. TIGAR: May I just say to the Court, I also take a 7 blood pressure medication, and after about two hours -- 8 THE COURT: I'm sorry, that's fine. We'll take a 9 break. We'll take a 10-minute break. If anyone needs a break, 10 please let me know. We'll take a 10-minute break. Not a 11 problem. 12 And I wasn't sure if you asked about a lunch break, 13 But of course we'll be having a break after we have finished 14 with the jury selection before we go to matters this afternoon. 15 Okay. 16 (Morning recess) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 405 45LSSAT4 1 THE COURT: Please be seated all. 2 Juror Number 84. 3 (Juror present) 4 BY THE COURT: 5 Q. Please have a seat. 6 Good afternoon, Juror 84. 7 A. Good afternoon. 8 Q. I would like to ask you some preliminary questions. Since 9 you were here last has anything changed concerning your ability 10 to as a juror in this case or has anything occurred to you that 11 may affect your ability to be a fair and impartial juror in 12 this case? 13 A. No. 14 Q. It now appears that the date that the final jury will be 15 chosen in this case will be Monday, June 21st. So after today 16 it's unlikely you will be called to come back before June 18th. 17 Does that present any serious hardship for you? 18 A. No. 19 Q. Since you were here last have you spoken to anyone about 20 the case or have you looked at or listened to anything about 21 the case? 22 A. No, I haven't. 23 Q. Has anyone spoken to you about the case? 24 A. No. 25 Q. And that includes any conversations here in the courthouse SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 406 45LSSAT4 1 or with any other prospective jurors. 2 A. No. 3 Q. While you were waiting with the other prospective jurors 4 did you or anyone you overheard discuss the case? 5 A. No. 6 Q. Could you tell me your spouse did before she was a social 7 worker? 8 A. She stayed at home with the kids. She was a mom. 9 Q. I am sorry? 10 A. She was a mom, a stay-at-home mom. 11 Q. Okay. 12 You mentioned that you have one prior experience as a 13 juror. 14 A. Yes, the last time I was called for a jury and I served for 15 3 days. 16 Q. Could you keep your voice up? 17 A. Sure. 18 Q. You just had one prior experience as a juror? 19 A. Yes, that is correct. 20 Q. And that was a civil case? 21 A. Yes, it was. 22 Q. Was that in federal court? 23 A. I don't believe it was, no. 24 Q. State court? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 407 45LSSAT4 1 Q. And when was that? 2 A. The last time I served I believe it was 3-1/2, 4 years ago. 3 Thereabouts. 4 Q. And how long was that jury service? 5 A. 3 days. 6 Q. And did you participate in a jury? 7 A. Yes, I did. 8 Q. And what kind of civil case was it? 9 A. I don't know, do you want me to be specific about it? 10 Q. Was it an accident case? 11 A. Yes, it was an accident case. A woman got hurt. 12 Q. A car accident? 13 A. No, she fell in an establishment and she was looking for 14 some money. 15 Q. And did the jury reach a verdict in that case? 16 A. Yes, we did. 17 Q. Is there anything about that experience and your reactions 18 to it or to the facts of that case or the lawyers in that case 19 or the process, anything about that that would prevent you from 20 being a fair and impartial juror in this case? 21 A. No. 22 Q. There is nothing about that prior jury experience -- 23 A. No. 24 Q. And you are not asking for an excuse or deferral on the 25 basis of that prior experience? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 408 45LSSAT4 1 A. No. 2 Q. You mentioned that you worked in the past and social sized 3 with people of Middle Eastern descent? 4 A. I worked with in the city and, yes, I worked with people of 5 Middle Eastern descent, yes. 6 Q. And do you know what countries those people were descended 7 from? 8 A. Unless I asked I have no idea. 9 Q. And you didn't ask? 10 A. That is irrelevant to me. Just friends of mine that I 11 worked with, you know. 12 Q. Do you have any biases or prejudices towards any people of 13 Middle Eastern descent or any people of the Islamic faith? 14 A. None. No. 15 Q. All right. 16 If you were chosen as a juror in this case, you would 17 be required to decide this case based solely on the evidence or 18 lack of evidence and in accordance with my instructions on the 19 law. 20 Will do you that? 21 A. Sure. Yes. 22 Q. And as you can tell from all of these questions, the 23 fundamental issue is whether there is anything in your personal 24 history or life experience, whether I have asked you about it 25 specifically or not, that would prevent you from being a fair SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 409 45LSSAT4 1 and impartial juror in this case, so let me ask you one final 2 time whether there is anything, whether I have asked you about 3 it specifically or not, that would prevent you from being a 4 fair and impartial juror in this case? 5 A. No. There isn't. 6 Q. Okay. 7 Thank you. Can you step out just for a moment. 8 (Juror absent) 9 THE COURT: No further questions, no challenges for 10 cause. 11 Bring back Juror 84. 12 (Juror present) 13 BY THE COURT: 14 Q. Juror 84, you are still in the jury selection process. Mr. 15 Fletcher will give you a slip of paper indicating to call back 16 on June 18th and what number to call and all. 17 It's very important that you continue to follow my 18 instructions. Please don't talk about this case or anything or 19 anyone who has anything to do with it. Please remember not to 20 look at or listen to anything to do with the case. If you 21 should see something just turn away. Remember that you must 22 keep an open mind until you have heard -- if you are chosen as 23 a juror -- until you have heard all the evidence, I have 24 instructed you on the law and you have gone to the jury room to 25 begin your deliberations. Fairness and justice requires that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 410 45LSSAT4 1 you do that. 2 Do you understand that? 3 A. I do. 4 Q. Okay. 5 Thank you, sir. 6 A. Thank you. 7 (Juror absent) 8 THE COURT: Juror Number 88. 9 Juror 78 has shown up so we will do number 78. 10 Juror 78 has shown up so we will go back to Juror 78. 11 MS. SHELLOW-LAVINE: If we can just have a minute, 12 your Honor. 13 (Juror present) 14 BY THE COURT: 15 Q. Please have a seat. 16 Good afternoon, Juror 78. 17 A. Good afternoon. 18 Q. Could you talk into the microphone so I can make sure that 19 I hear you and it's a big courtroom. 20 A. Okay. 21 Q. You indicated that being a juror would cause you serious 22 hardship? Is that right? 23 A. Yes, because I have 3 children that I would have to pick up 24 and I don't have nobody to really pick them up. 25 Q. All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 411 45LSSAT4 1 You can't make any other arrangements for the 2 children? 3 A. Not right now. And I also have like a little job. Because 4 I don't work full-time. I only work from 3 to 6. 5 Q. Do you currently pick your children up? 6 A. Yes. 7 Q. When do you pick them up? 8 A. At 3 o'clock. 9 Q. Okay. 10 Could you just step out for a moment. 11 (Juror absent) 12 THE COURT: I am prepared to excuse the juror. 13 MR. DEMBER: Your Honor, the government has no 14 objection to that. 15 MR. RUHNKE: No objection, your Honor. 16 THE COURT: Okay, let's bring in Juror 78. 17 (Juror present) 18 BY THE COURT: 19 Q. Juror 78, I will excuse you. I appreciate your having 20 participated in the process and you can now go home. 21 A. Thank you. 22 Q. All right. 23 (Juror absent) 24 THE COURT: Juror 88. 25 (Juror present) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 412 45LSSAT4 1 BY THE COURT: 2 Q. Good afternoon. 3 A. Good afternoon. 4 Q. Good afternoon, Juror 88. 5 Since you were here last has anything changed 6 concerning your ability to serve as a juror in this case or has 7 anything occurred to you that may affect your ability to be a 8 fair and impartial juror in this case? 9 A. There were two things of a business nature. I am an 10 independent contractor. I am a freelance producer and I was 11 booked on two assignments and I am under contractual obligation 12 on one of them. There has been a contract signed about the 13 client, which started last Friday and it's supposed to run 14 through December. 15 Q. Last Friday and it goes through December? 16 A. Through December of this year. And I don't know if I am 17 allowed to disclose what I do but I basically would be the head 18 of the project, so this would definitely create a problem for 19 the production company. 20 Q. You had indicated in response to the questionnaire that if 21 you were chosen as a juror it would not be a serious hardship 22 for you. 23 A. Well, serious to me is life threatening. It won't threat 24 men my life. I am not terminal I hill and I wouldn't be 25 missing treatment or anything. It would be a financial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 413 45LSSAT4 1 hardship and now it would be potentially a liability for the 2 production company because they are under a contractual 3 obligation to have me run it. But, I mean, serious -- that is 4 a very subjective word. Serious and life threatening, no. 5 Q. If you were chosen as a juror and did serve in this case 6 for 4 to 6 months, and it would begin in June, June 21st as it 7 stands now, can other arrangements be made with the production 8 company so that there would be alternative arrangements? We 9 only sit 4 days a week so that you would not be here on Fridays 10 or weekends and we only sit until about 4:30. 11 A. Well, the client is out of state, so I think that that 12 would present a problem for that particular client. The 13 logistics of it wouldn't work. 14 Q. Are you part of the contract? Does the contract provide 15 for you? 16 A. We were awarded the assignment based on my producing it. 17 So I was part of the pitch team and I would be leading the 18 project. So I am the reason they were awarded the project. 19 Q. You are a very intelligent person. You understand the 20 importance of jury service. You understand the importance of 21 the parties in a case having a jury chosen from a cross section 22 of the community, including people with responsibilities who 23 put those responsibilities aside or on hold to assure that the 24 process of justice is carried out and that the parties receive 25 the benefit of a jury chosen from a cross section of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 414 45LSSAT4 1 community. 2 Now, you have to tell me whether based upon your 3 participation with your company and your participation in the 4 project, whether you simply can't serve on the jury. But if it 5 means that serving on the jury will be a matter of 6 inconvenience, if it's a matter that other things will have to 7 be juggled, it plainly doesn't rise to the level of serious 8 hardship. 9 A criminal prosecution plainly is a matter of 10 extraordinary importance to all of the participants and I have 11 to make judgments on what jurors tell me about what their 12 conflicts are. So you have to be able to explain to me a 13 little more whether what you are telling me is, look, Judge, I 14 can't do this. Now "can't do this" doesn't mean that someone 15 will die or have a terminal illness or anything like that. 16 "Can't do this" means I am so committed to this other project 17 and there are so many people who depend upon me that I can't do 18 this because I can't be fair and do this. 19 A. Well, I think if I were to sit on this jury it would put me 20 in breach of my personal integrity which is an independent 21 producer is the greatest asset I have in the workplace. So 22 that is of concern to me because I have committed to this. 23 There are other people that are working on a freelance basis 24 whose income is dependent on this project as well and then 25 there is the production company which is a healthy, viable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 415 45LSSAT4 1 organization. I am less concerned about that. I am more 2 concerned about the other individuals that would be concerned 3 or would be affected by this. Because the production industry 4 frankly since September 11 has been quite slow and there are 5 fewer assignments out there and people need the work. So I do 6 not feel -- I mean, that is a big responsibility I have to 7 others. So that is something that I weigh heavily and I am 8 being very serious about it, you know. I feel I can be a very 9 good juror but then I have a responsibility to other people as 10 well. So I am not quite sure where that weighs in. 11 Q. Let me ask you this: I realize that you have been 12 important in getting the contract but if you served as a juror 13 in this case, would the contract go forward or could people get 14 out of the contract? 15 A. I don't frankly know how they handle it. I can't answer 16 that. I don't know how they would move forward. I don't know 17 how they would choose to move forward. 18 Q. Okay. 19 Is there someone -- 20 A. I mean, they made it quite clear to me that, you know, they 21 are looking to me to lead this project. I mean, you know, I 22 had conversations as of last night. I had dinner with one of 23 my clients last night, so the world is not going to come to an 24 end. 25 Q. I am sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 416 45LSSAT4 1 A. The world won't come to an end. It's not of a grave nature 2 but -- 3 Q. Would you have been working on this contract full-time? 4 A. Oh, yes. The type of work that I do is really all 5 consuming and when we are on a project of this scale it's 6 usually a 6, sometimes a 7 day a week, 16, 18 hours a day. 7 Like the production industry is very intense. You will do a 8 project, then you will take some time off. So it's a very 9 intense type of schedule. It's definitely not a 9 to 5 type of 10 assignment. 11 Q. When did this come up? 12 A. This came up last Friday. I don't know the date. 13 Q. The contract? 14 A. Yes. And I have a letter from the production company. 15 Q. Could you step out just for a moment. 16 (Juror absent) 17 THE COURT: Do the parties want me to pursue this with 18 the juror? 19 MR. RUHNKE: It sounds like a very legitimate concern 20 and we have no objection. 21 MR. DEMBER: We agree, your Honor. 22 THE COURT: All right. 23 (Juror present) 24 BY THE COURT: 25 Q. Juror 88, I will excuse you and I appreciate your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 417 45LSSAT4 1 participating in the process. And you can go home now and all 2 the paperwork will be taken care of by mail. 3 A. Thank you. And I want to say it was an honor and a 4 privilege to be a part of this jury pool. 5 Q. Okay. 6 A. Thank you. 7 (Juror absent) 8 THE COURT: Juror 89. 9 (Juror present) 10 BY THE COURT: 11 Q. Please have a seat. 12 Good afternoon, Juror 89. 13 Since you were here last has anything changed 14 concerning your ability to serve as a juror in this case or has 15 anything occurred to you that may affect your ability to be a 16 fair and impartial juror in this case? 17 A. I do have a few issues. I am getting married next month 18 and I have yet to find a place to live. My fiance is not from 19 New York. 20 Q. Can you keep your voice up and talk into the microphone 21 please. 22 A. My fiance is not from New York and we don't have a place to 23 live and we don't have much time and, you know, things are 24 quite stressful. 25 Q. When is it that you are getting married? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 418 45LSSAT4 1 A. The end of June. 2 Q. We are actually not going to begin the next phase of jury 3 selection until June 21st. So you are welcome to go look for a 4 house and no obligations here until you have to call back on 5 June 18. 6 A. Our honeymoon is postponed until the end of July for two 7 weeks. We already have everything planned and ready to go. 8 Q. Do you have tickets? 9 A. Yes. 10 Q. Okay. Can you step out. 11 (Juror absent) 12 THE COURT: I am prepared to excuse the juror. 13 MR. DEMBER: Yes, your Honor. 14 MR. TIGAR: She said she is looking for a house. If 15 someone is thinking of moving out of the district does that 16 make them ineligible? We have had a couple of questionnaires 17 like that. 18 THE COURT: I don't know the answer to that. You can 19 research that and give me a letter on it tomorrow if you think 20 it makes a difference with respect to any of the jurors. It 21 plainly doesn't with respect to this juror, is that correct? 22 Is that right? 23 MR. TIGAR: It does make a juror. She mentioned she 24 was thinking of moving out of the district. That is why I 25 raised it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 419 45LSSAT4 1 THE COURT: The parties agree that this juror should 2 be excused? 3 MR. DEMBER: Yes, your Honor. 4 MR. RUHNKE: Yes. 5 THE COURT: All right. 6 (Juror present) 7 BY THE COURT: 8 Q. Please have a seat. 9 Juror 89, I am going to excuse you. I appreciate your 10 having participated in the process. 11 A. Okay. Thank you very much. 12 Q. You can go home now and the paperwork will be taken care of 13 by the clerk. 14 (Juror absent) 15 THE COURT: 95. 16 (Juror present) 17 BY THE COURT: 18 Q. Good afternoon, Juror 95. It's good to see you. 19 Tell me, since you were here last has anything changed 20 concerning your ability to serve as a juror in this case or has 21 anything occurred to you that might affect your ability to be a 22 fair and impartial juror in this case? 23 A. It's very hard to say. I know that even just yesterday and 24 today here I have had my hips replaced and the prolonged 25 sitting is more of a factor than I thought of when I was here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 420 45LSSAT4 1 on May 4. It's really rather difficult. I have to get up and 2 move around a lot more than you are able to in this situation. 3 Q. If you were chosen as a juror you would be able to stretch 4 but that wouldn't be too helpful. 5 A. Probably not enough because of the length of the trial. 6 One of the conflicts I have is that I wish I felt more able to 7 do it but because of the particular situation and the duration 8 I have a feeling that I really wouldn't. 9 Q. When did you have your hips replaced? 10 A. A few years ago. 11 Q. Would sitting on the jury be uncomfortable for you? 12 A. It's hard to say. For a little while, no. On and on, yes. 13 Q. All right. 14 Is there some reason why when -- I don't recall your 15 raising the issue of your hips on the questionnaire. 16 A. I don't think I thought of it. 17 Q. Okay. 18 A. You know, you read the questions and you try to answer and 19 you do the best you can. 20 Q. All right. 21 Could you step out just for a moment. 22 (Juror absent) 23 THE COURT: I am prepared to excuse the juror at this 24 point. If the parties want me to continue questioning I will, 25 but it seems reasonably clear to me what will develop at the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 421 45LSSAT4 1 end of the day. 2 MR. RUHNKE: We are prepared to excuse her, your 3 Honor. 4 MR. DEMBER: We agree, your Honor. 5 THE COURT: All right. 6 (Juror present) 7 BY THE COURT: 8 Q. Juror Number 95, I will excuse you. And so you can go home 9 now and all of the paperwork will be taken care of through the 10 mail and I appreciate your having participated in the process. 11 A. Thank you very much. 12 (Juror absent) 13 THE COURT: Juror Number 96. 14 (Juror present) 15 BY THE COURT: 16 Q. Good afternoon, Juror Number 96. 17 A. Good afternoon. 18 Q. Since you were here last has anything changed concerning 19 your ability to serve as a juror in this case or has anything 20 occurred to you that may affect your ability to be a fair and 21 impartial juror in this case? 22 A. I am aware -- I am more aware of the stresses and the 23 difficulties but I am possibilities, no. 24 Q. Could you keep your voice up? 25 A. I am more aware of the stresses and the difficulties but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 422 45LSSAT4 1 not I am possibilities. 2 Q. Okay. Could you tell me what you mean by that? 3 A. I am aware of what a toll it would take on my work life and 4 I am very conscious of the stresses it will bring to my 5 personal life. 6 Do you want me to elaborate? 7 Q. Yes. 8 A. It seems to me that not being able to speak with the people 9 to whom I am close, particularly my husband, will be very 10 stressful, would be very stressful -- I use the conditional -- 11 and it seems to me that not having solitude, particularly at 12 lunch -- I mean, I use lunchtime as a restorative time and I 13 this sounds trivial compared to the overarching point of the 14 trial, but we each have ways of sustaining ourselves and 15 solitude and intimacy are two of the ways I sustain myself. So 16 I am very conscious of that. And of course I am conscious of 17 the pressure to do the right thing. 18 Q. If you were chosen as a juror in this case, would you be 19 fair and impartial? 20 A. What I can say and what I will say is that if chosen to be 21 a juror I will do everything in my power to be fair and 22 impartial. I cannot say I will be fair and I will be impartial 23 because that is unknown to me. I mean, I am a writer, and 24 language is important to me. I cannot say I will be fair and 25 impartial. I can say, and will say, I will do everything in my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 423 45LSSAT4 1 power to be fair and impartial. And I don't know who is the 2 decider of what is fair and impartial, so I will do everything 3 in my power to be fair and impartial. And I am not trying to 4 play games but that is a very important distinction to me. 5 Q. As you think about the case, do you have any doubts or 6 concerns whether you will be fair and impartial? 7 A. I can say that going in based on what I knew about the case 8 before I was told not to know about the case, and based on some 9 of the questions in the questionnaire, that there are elements 10 that would be -- that at this point are troublesome to 11 contemplate. Does that mean I would not be -- I would not do 12 everything in my power to be fair and impartial? No, that does 13 not mean that. If chosen I will do everything in my power to 14 be fair and impartial, including listening to the instructions 15 that you will give and obeying them to the best of my ability. 16 To give an absolute answer is not authentic. I can't do that. 17 I can just say I will indeed if chosen do my best. 18 Q. Okay. 19 Can I ask you to step out for a moment? 20 A. Can I leave my stuff? 21 Q. Sure. 22 (Juror absent) 23 THE COURT: I am prepared to strike the juror at this 24 point. 25 MR. DEMBER: We certainly have no objection. She has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 424 45LSSAT4 1 indicated she can't assure us that she can be fair and 2 impartial. 3 MR. TIGAR: At this end of the defense table, your 4 Honor, we believe that the juror has been candid. We believe 5 the juror has been candid and literal. No one can guarantee a 6 future event and I think she has said honestly all that should 7 reasonably be required of a person. I do wish to inquire about 8 the point which she considered troublesome but we do not 9 believe that she has obtained the position. 10 THE COURT: Mr. Ruhnke. 11 MR. RUHNKE: Your Honor, we would think that this 12 juror should not stay. 13 THE COURT: You think it's a challenge for cause? 14 MR. RUHNKE: We are willing to consent to her going at 15 this point, your Honor. If you want our thinking -- 16 THE COURT: It's clear -- 17 MR. RUHNKE: I just wanted to check with the other 18 parties. 19 We agree with the challenge for cause. 20 MR. PAUL: We agree. 21 THE COURT: The government? 22 MR. DEMBER: Absolutely. 23 THE COURT: I will strike the juror for cause and it's 24 clear to me based upon her demeanor, her credibility that she 25 is troubled by issues in the case and she cannot assure us and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 425 45LSSAT4 1 she is very conscientious and she cannot assure us that she 2 will be a fair and impartial juror based upon everything that 3 she has heard and read about the case. Having listened to her, 4 observed her, having watched her struggle with the questions, 5 having observed the difficulties that she has in answering the 6 questions, I am convinced that she would not be a fair and 7 impartial juror in this case and therefore I will strike her 8 for cause. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 426 45LLSAT5 1 (Juror present) 2 BY THE COURT: 3 Q. Hi, please have a seat. Juror Number 96, I very much 4 appreciate your participation in the process and I will excuse 5 you from further participation, and again I emphasize to you 6 that I appreciate your participation and that you should take 7 away from the process the satisfaction of knowing that you have 8 performed a public service by participating in the process. 9 And so you can go home now and all of the paperwork will be 10 taken care of in the mail. 11 A. Thank you. I hope it goes well for all of you. 12 (Juror absent) 13 THE COURT: Juror Number 98. 14 U.S. MARSHAL: Juror Number 98. 15 (Juror present) 16 BY THE COURT: 17 Q. Hi, Juror 98. Good afternoon. 18 JUROR: 19 A. Good afternoon. 20 Q. Since you were here last, has anything changed concerning 21 your ability to serve as a juror in this case, or has anything 22 occurred to you that may affect your ability to be a fair and 23 impartial juror in this case? 24 A. No. 25 Q. It now appears that the date that the jury will be chosen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 427 45LLSAT5 1 will be Monday, June 21st. So after today, it's unlikely you 2 will be called to come back before June the 18th. Does that 3 present any serious hardship for you? 4 A. No. 5 Q. Since you were here last, have you spoken to anyone about 6 the case or have you looked at or listened to anything about 7 the case? 8 A. No. 9 Q. Has anyone spoken to you about the case? 10 A. No. 11 Q. And that includes any conversations here at the courthouse 12 or with any prospective jurors? 13 A. No. 14 Q. While you were waiting with the other prospective jurors, 15 did you or anyone you overheard discuss the case? 16 A. No. 17 Q. You indicated that the area of New York that you lived in, 18 I think, was UPS? Maybe that's a mistake. What county do you 19 live in? 20 A. New York. 21 Q. New York County. 22 A. Yes. 23 Q. And don't tell us specifically where you live, but tell us 24 the neighborhood you live in, like Upper West Side or Gramercy 25 Park or the lower East Side. Just tell us the general area SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 428 45LLSAT5 1 that you live in. 2 A. Upper west. 3 Q. Upper West Side? 4 A. Yes. 5 Q. Okay. I don't know if I mentioned that, but I understand. 6 Upper West Side. Okay. And you mention that your mother was a 7 clerk or is a clerk? Is that right? 8 A. Was, yes. 9 Q. And where was she a clerk? 10 A. One Police Plaza. In the intelligence division. 11 Q. Could you speak up? 12 A. One Police Plaza, intelligence division. 13 Q. In the intelligence division? 14 A. Yes. 15 Q. And when did she cease to work for the police department? 16 A. Early 70's. 17 Q. Early 70's. Okay. Is there anything about your mother's 18 occupation with the police department that would, in the early 19 70's, that would prevent you from being a fair and impartial 20 juror in this case? 21 A. No. 22 Q. You indicated that you weren't -- that you served once on a 23 jury before; is that right? 24 A. Yes, I was called, but I wasn't used. 25 Q. You were called. But you didn't actually serve on a jury? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 429 45LLSAT5 1 A. Right. 2 Q. Were you called in state or federal court? Do you know? 3 A. State. 4 Q. Is there anything about that experience that would prevent 5 you from being a fair and impartial juror in this case? 6 A. No. I only came for two days and they sent me home. I 7 never really served. 8 Q. All right. You indicated that you served on a grand jury 9 at one time? 10 A. Yes. 11 Q. How long ago was that? 12 A. Late 80's. 13 Q. Okay. Was that in state or federal court? 14 A. State -- I'm not sure. 15 Q. Okay. How long were you on a grand jury? About how long 16 did that take? 17 A. About a month. 18 Q. A month. Now, do you understand that what a grand jury 19 does is a grand jury returns indictments, but indictments are 20 only charges, and they're not evidence of anything. And if you 21 were called as a juror in this case, you would have to listen 22 to the evidence in this case and decide whether in this case 23 the government had proven the charges in the indictment beyond 24 a reasonable doubt. And that's a different standard from the 25 one that the grand jury applies. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 430 45LLSAT5 1 Would you follow my instructions and decide this case 2 based solely on the evidence or lack of evidence in this case 3 and my instructions on the law, including the government is 4 required to prove the charges in this case beyond a reasonable 5 doubt. The jury has to determine whether the charges in this 6 case are proven beyond a reasonable doubt. Would you do that? 7 A. Yes. 8 Q. Okay. Could you tell me what newspapers you regularly 9 read? 10 A. Daily. 11 Q. Daily News? 12 A. Yes. 13 Q. Am I correct just from reading the answers on the 14 questionnaire that at one point your brother was convicted of 15 assault? 16 A. Yes. 17 Q. And when was that? 18 A. Early 80's. 19 Q. Early 80's. And was that in state court? 20 A. I don't know. 21 Q. You don't know? 22 A. No. 23 Q. Okay. Do you recall what sentence your brother got? How 24 long? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 431 45LLSAT5 1 Q. No. And did you visit your brother in prison? 2 A. Yes, one time. Years ago. 3 Q. And do you recall how long he was there? 4 A. No. He served some time, but it wasn't -- I don't 5 remember. 6 Q. Served some time but you don't recall how long? 7 A. Maybe two, three years. 8 Q. Okay. Now, he was represented by a lawyer in that case? 9 A. I'm not sure. 10 Q. Did you go to the trial? 11 A. No. 12 Q. Okay. As a result of that situation and anything that 13 happened to your brother, is there anything about that that 14 would prevent you from being a fair and impartial juror in this 15 case? 16 A. No. 17 Q. Do you have any questions about that? 18 A. No. 19 Q. No? This is a criminal case. There are charges against 20 the defendants. If you were chosen as a juror, you would have 21 to be fair and impartial to the government and to the 22 defendants. Would you do that? 23 A. Yes. 24 Q. Is there anything about your experience with your brother's 25 case that would interfere at all with you being a fair and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 432 45LLSAT5 1 impartial juror in this case? 2 A. No. 3 Q. Would you hold it against the government or the defendants 4 that your brother was convicted in the early 80's and served 5 time? 6 A. No. 7 Q. You're sure of that? 8 A. Uh-huh. 9 Q. All right. If you were chosen as a juror in this case, 10 would you decide this case based solely upon the evidence or 11 lack of evidence that's presented here in court and my 12 instructions on the law? 13 A. Yes. 14 Q. Do you have any biases or prejudices for or against the 15 government or any of the defendants? 16 A. No. 17 Q. There were a series of questions that I asked you about 18 certain principals of law, and some of them, you know, may not 19 have been clear. Let me go over one of them. If you were 20 chosen as a juror in this case, one of the instructions that I 21 would give you is that a criminal defendant has the right not 22 to testify. If the defendant does not testify, the jury may 23 not draw any inference against the defendant based on that 24 decision. The fact that a defendant chooses not to testify may 25 not enter into the jury's deliberations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 433 45LLSAT5 1 Put another way, each defendant has the absolute right 2 under our constitution to either testify or not to testify, and 3 the jury can draw absolutely no inference against a defendant 4 based on that decision. Do you understand? 5 A. A little. 6 Q. I'm sorry? 7 A. A little. 8 Q. I can't hear -- 9 A. A little. 10 Q. A little. Let me -- it's a long question. So let me put 11 it yet another way: A defendant does not have to testify. A 12 defendant has the right not to testify. And if the defendant 13 chooses not to testify, the jury cannot take that into account, 14 cannot consider that, cannot draw any inference from that at 15 all. It just cannot enter into the jury's determination. The 16 jury can't hold it against the defendant. If the defendant 17 chooses not to testify. 18 Do you understand that? 19 A. Okay. 20 Q. Yes? 21 A. Okay, yes. 22 Q. Is there anything about that that you don't understand? 23 A. No. 24 Q. Would you like me to explain it further? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 434 45LLSAT5 1 Q. Okay. A defendant doesn't have to testify. Has the 2 absolute right not to testify. And if the defendant does not 3 testify, that's not any evidence and it just can't be 4 considered by the jury at all. The jury can't consider that. 5 It simply is not something that could possibly make a 6 difference or that the juries could possibly think about or 7 hold against a defendant in any way. Do you see that? 8 A. Okay. 9 Q. Okay? Now, do you want me to explain that any more? 10 A. No. 11 Q. Do you understand that? 12 A. Yes. 13 Q. Now, please speak into the microphone. Do you understand 14 that? 15 A. Yes. 16 Q. And will you follow that principal of law? 17 A. Yes. 18 Q. And can you do that? 19 A. Yes. 20 Q. Do you have any questions or doubts in your own mind 21 whether you will be a fair and impartial juror in this case if 22 you're chosen to be a juror? 23 A. No. 24 Q. If you were chosen as a juror, would you listen to the 25 evidence or lack of evidence and my instructions on the law and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 435 45LLSAT5 1 decide the case based solely on the evidence or lack of 2 evidence? 3 A. Yes. 4 Q. Do you have any other questions for me about any of the 5 questions that I've asked or about any of the questions on the 6 questionnaire? 7 A. No. 8 Q. If you were chosen as a juror, would you listen to the 9 evidence and be fair and impartial? 10 A. Yes. 11 Q. Would you give the government and all of the defendants a 12 fair trial? 13 A. Yes. 14 Q. As you can tell from all of my questions, the fundamental 15 issue is whether there is anything in your personal history or 16 life experience that would prevent you from being a fair and 17 impartial juror in this case. So let me ask you one final time 18 whether there is anything, whether I've asked you about it 19 specifically or not, that would prevent you from being a fair 20 and impartial juror in this case? Is there anything? 21 A. Not off the top of my head, no. 22 Q. Well, it's very important, so think about it. You've 23 answered the questions on the questionnaire. I've spoken to 24 you, if given you preliminary instructions. Tell me, tell me, 25 is there anything that you know of or can think of that would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 436 45LLSAT5 1 prevent you from being a fair and impartial juror in this case? 2 A. I'll be fair as possible. Listening to everything that's 3 instructed or spoken about. I'll be fair about it. 4 Q. All right. Is there anything that you know of that would 5 prevent you from being fair and impartial in this case? 6 A. No. 7 Q. All right. Could you step out for a moment? 8 (Juror absent) 9 THE COURT: No questions? No challenges? Juror 98 10 will be asked to return on June the 18th. 11 (Juror present) 12 THE COURT: Juror 98, you're still in the jury 13 selection process, so I'll ask you to call back on June the 14 18th, and Mr. Fletcher will give you a slip explaining who to 15 call, when to call, and please, please remember my continuing 16 instructions: 17 Please, don't talk about this case at all or anything 18 or anyone that has anything to do with it. Remember not to 19 look at or listen to anything to do with the case. If you 20 should see something in the newspapers, just turn away. Or 21 listen to anything, just turn away. Always remember, as I'll 22 tell the final jurors: Keep an open mind until you've heard 23 all of the evidence, I've instructed you on the law, and you've 24 gone to the jury room to begin your deliberations. All right? 25 A. June what date again? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 437 45LLSAT5 1 Q. June the 18th. 2 A. To call back? 3 Q. Yes. It will be on the slip of paper. It will tell you to 4 call back on June the 18th for further instructions. 5 A. Okay. 6 Q. All right? 7 A. All right. 8 Q. Because we are unlikely to begin until June the 21st. So 9 June the 18th, you should call back. 10 A. (Nods head) 11 Q. Okay? All right? 12 A. Yes. 13 (Juror absent) 14 THE COURT: Juror 101. 15 DEPUTY CLERK: Juror 101. 16 (Juror present) 17 BY THE COURT: 18 Q. Hi. 19 A. Hi. 20 Q. Good afternoon, Juror 101. 21 Since you were here last, has anything changed 22 concerning your ability to serve as a juror in this case or has 23 anything occurred to you that may affect your ability to be a 24 fair and impartial juror? 25 A. Nothing's happened from the original time I was here, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 438 45LLSAT5 1 Q. It now appears that the date that the final jury will be 2 chosen in this case will be Monday, June 21st. So after today, 3 it's unlikely that you will be called to come back before 4 June 18th. Does that present any serious hardship for you? 5 A. I have some -- I have scheduled business trips over the 6 next few months. I don't know if that would prevent me... 7 Q. Well, you won't be called back for the case until June 18th 8 and it would only begin on June 21st. So any business trips 9 between now and June 18th are not a problem. 10 A. No, I have the calendar. 11 Q. You indicated this case would not be a serious hardship for 12 you, right? 13 A. Well, it would impede me from earning what I typically 14 would earn if I would be on this case, yes. Based upon how I'm 15 paid. 16 Q. But you would continue to be paid your salary? 17 A. My salary yes, but any additional incomes from bonus, 18 commissions, things of that nature, would obviously cease. 19 Q. Right. But you told us that -- and forthrightly, that that 20 would not be a serious economic hardship for you. You would 21 lose some income? 22 A. I'd lose a good amount of income, yes. I wouldn't be 23 destitute, no. I would be losing a lot of income. 24 Q. And your financial condition is such if you sat for four to 25 six months on the case, it would -- you would lose income, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 439 45LLSAT5 1 would continue to be paid your salary, but the amount of income 2 that you would lose would not rise to the level that you could 3 honestly tell me that it would be a serious economic hardship 4 for you? 5 A. It would be about 30 percent, you know, difference. 6 Q. But that would not be a -- 7 A. I don't know what your terms for -- "serious" means, 8 actually. Sorry I ask that that way, but I don't. 9 Q. Both you and your spouse are employed, right? 10 A. My husband's self-employed. 11 Q. Okay. And you, personally, believe that if you were chosen 12 as a juror, that the loss of the additional bonus income for 13 you would create -- 14 A. It wouldn't be a hardship. It would be very difficult. It 15 wouldn't be a hardship. 16 Q. It would not be a hardship. You indicated on the 17 questionnaire -- let me ask you a couple of other preliminary 18 questions. 19 Since you were here last, have you spoken to anyone 20 about the case or have you looked at or listened to anything 21 about the case? 22 A. I saw something in the paper and I turned the page. 23 Q. Okay. Have you spoken to anyone about the case? 24 A. Specifically about the case? No. 25 Q. Generally? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 440 45LLSAT5 1 A. Just that I was on -- I've been called for jury duty. 2 Q. Okay. And that includes any conversations with anyone here 3 at the courthouse or with any other prospective jurors? 4 A. I didn't have conversation. 5 Q. You indicated on the questionnaire that you -- I asked a 6 question on the questionnaire about the fact that -- I 7 explained that there might be recorded conversations in the 8 case including conversations through the use of electronic 9 devices commonly known as bugs or wiretaps. I also pointed out 10 that there might be recorded conversations between attorneys 11 and their clients, and I asked whether that would prevent you 12 from rendering a fair and impartial verdict in the case. 13 Now, I should explain to you that if any of that 14 evidence is admitted, I will have determined that, as a matter 15 of law, it can be admitted, it can be considered. So whether 16 it's the kind of evidence that you like or don't like or agree 17 with or don't agree with isn't the issue and it's not relevant, 18 and that couldn't be taken into account in your own jury 19 determinations. Do you understand? 20 A. I think what you're saying is that it's something that you 21 have and it's -- whether I think that it should apply or not, 22 doesn't really matter? 23 Q. Right. 24 A. Okay. 25 Q. And would you be able to follow that instruction? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 441 45LLSAT5 1 A. I would hope so, but I don't know. Honestly. I don't 2 know. 3 Q. Okay. I explained to you that a law enforcement officer is 4 entitled to no greater or lesser credibility than any other 5 witness -- 6 A. I'm sorry, they're entitled to what? 7 Q. A law enforcement officer is entitled to no greater 8 credibility than any other witness. You'd have to listen to a 9 law enforcement officer and determine whether the witness was 10 credible or not credible. And then I asked you on the 11 questionnaire whether you would be inclined to believe a 12 witness more or less because the witness was a law enforcement 13 officer. And you said? 14 A. I probably would. 15 Q. You would? 16 A. I probably would, yes. 17 Q. And could you follow my instruction that they're not 18 entitle to do any greater or lesser credibility just because 19 they're a law enforcement officer? 20 A. That would have to probably -- I don't know. I'd like to 21 think that I would. I don't know. That's why I put I don't 22 know on a lot of them. 23 Q. Yeah, okay. Could you step out for a moment? 24 (Juror absent) 25 THE COURT: I'm prepared to strike the juror at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 442 45LLSAT5 1 point. 2 MR. BARKOW: We have no objection, your Honor. 3 MR. RUHNKE: We have no objection. 4 DEPUTY CLERK: Last one in the room is 104. 5 THE COURT: And also 305? 6 MR. DEMBER: 305, your Honor. 7 DEPUTY CLERK: 305. 8 THE COURT: Call back 101, then 104, then 305, if 305 9 is there. 10 (Juror present) 11 BY THE COURT: 12 Q. Juror 101, I will excuse you. 13 A. Sorry? 14 Q. I say, I will excuse you. I appreciate your having 15 participated in the process, and all of the paperwork will be 16 taken care of by mail. And you can go home now. 17 A. Okay. Thank you. 18 THE COURT: Sure. 19 (Juror absent) 20 DEPUTY CLERK: 305 is the only one left. 21 THE COURT: Okay. The next juror will be Juror 305. 22 (Juror present) 23 BY THE COURT: 24 Q. Hi. 25 A. Hi. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 443 45LLSAT5 1 Q. Good afternoon, Juror 305. Since you were here last, has 2 anything changed concerning your ability to serve as a juror in 3 this case or has anything occurred to you that may affect your 4 ability to be a fair and impartial juror in this case? 5 A. Well, I've been offered a potential employment opportunity, 6 which I can't accept if I'm going to be serving on a trial. 7 Q. What's the nature of the appointment? 8 A. What do you mean? 9 Q. I may have misunderstood you. You said you've been 10 offered -- 11 A. A potential employment opportunity. 12 Q. Okay. 13 A. And I've been unemployed for over a year, so... 14 Q. And what would you be doing? What's the employment 15 opportunity? 16 A. It's an executive assistant position. 17 Q. If you didn't take that position? 18 A. If I didn't? 19 Q. Yes, if you didn't. 20 A. I don't know when I'll be offered another job. 21 Q. Okay. Could you just step out for a moment? 22 (Juror absent) 23 THE COURT: I'm prepared to excuse the juror. 24 MR. BARKOW: We have no objection, your Honor. 25 MR. RUHNKE: We agree. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 444 45LLSAT5 1 THE COURT: All right. 2 (Juror present) 3 BY THE COURT: 4 Q. All right, Juror 305, I'm prepared to excuse you from -- 5 A. Okay, thank you. 6 Q. It's all right. And I appreciate your having participated 7 in the process of jury selection, and all of your paperwork 8 will be taken care of by mail. So that you can go home now. 9 A. Okay. Thank you very much. 10 Q. All right. Have a good day. 11 A. You, too. 12 (Juror absent) 13 THE COURT: We'll break now for lunch and resume at 14 2:45, and I know I said 20 more by Saturday and another 18 by 15 Monday. I would really -- I'd really like to get ahead, so I'd 16 ask you to give me another 30 by Saturday and then 10 more on 17 Monday. 18 MR. RUHNKE: Judge, that's really going to be 19 difficult. If we could get 30 by Sunday maybe. 20 THE COURT: Okay, 20 by Saturday at noon, fax me; and 21 then the 18 by -- it really -- you can fax me another 20 on 22 Sunday, Sunday afternoon, 3:00 o'clock. And I'd advise the 23 government, also, please fax me. When you deliver it by hand, 24 I sometimes don't get it until the next day. 25 MR. DEMBER: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 445 45LLSAT5 1 THE COURT: And I'll see you all in an hour. I 2 realize Mr. Yousry is waiving his presence this afternoon. 3 DEFENDANT YOUSRY: I'm just going to stay for awhile, 4 probably leave around 4:00 o'clock. 5 THE COURT: Okay, fine. 6 DEFENDANT YOUSRY: Thank you. 7 THE COURT: All right. 8 (Luncheon recess) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 446 45LSSAT6 1 AFTERNOON SESSION 2 3 p.m. 3 THE COURT: Good afternoon all. Please be seated. 4 MR. TIGAR: Your Honor, would this be an appropriate 5 time to place the Staten Island Advance clipping in the record? 6 THE COURT: Sure, you can pass it up. 7 MR. TIGAR: I am handing it to Mr. Fletcher. The 8 picture that accompanies the clipping, your Honor, makes it 9 appear that the person had approached quite close to the green 10 steel and concrete security barriers that are just before the 11 stairway, the steps leading up to the Foley Square courthouse. 12 And it describes the conduct. I don't know what policy there 13 is about demonstrators of any persuasion approaching that near 14 to the courthouse. That is the court's business. But I bring 15 it to the court's attention. 16 THE COURT: Okay. I will mark it as Court Exhibit 1. 17 As we discussed this morning, I do talk to the jurors 18 each day and assure myself that the jurors haven't seen or 19 heard anything that will affect them, and I will also just 20 advise the marshals about this so that they are aware of it and 21 make sure that any demonstrators who are for or against any of 22 the parties are in their appropriate places and don't interfere 23 at all with the proceedings. As I said, I didn't see this, but 24 I appreciate you bringing it to my attention. 25 Mr. Fletcher. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 447 45LSSAT6 1 MR. BARKOW: Your Honor, we haven't seen it. I was 2 hoping we might see it or maybe we can get a copy. 3 THE COURT: I will hand this down. 4 MR. TIGAR: We only have one, your Honor. It's off 5 the Web. If the government would like us to, we can provide 6 another copy. 7 THE COURT: Just pass it back when you are finished. 8 I am told that Juror 29 has checked with his employer 9 and will be paid, so he will return on Monday while I continue 10 the examination at that time. 11 We are bringing in for Monday an additional 20, ten in 12 the morning, ten in the afternoon, and they will be assembled 13 in a separate jury room at 500 Pearl and then be brought to the 14 jury room here and be called in from the jury room here. 15 And we will start on Monday at 9:30, so please be here 16 at 9 o'clock or 9:15, and the government should check with the 17 marshals to make sure that all of the necessary arrangements 18 will be made. 19 MR. MORVILLO: Which arrangements would those be, your 20 Honor? 21 THE COURT: We started late today, I believe. I 22 thought that there was -- no? I thought that there was a 23 problem with beginning at 9:30. No? 24 MR. DEMBER: Not from our end, your Honor. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 448 45LSSAT6 1 There are several motions in limine. Do the parties 2 have any preference as to who goes first? 3 I have two rounds of government motions and a motion 4 in limine by Ms. Stewart. 5 MR. BARKOW: Your Honor, we will go first. I think 6 that is the defense preference as well. 7 May I pass back up the exhibit? 8 THE COURT: Yes. 9 MR. BARKOW: Does your Honor have a preference whether 10 I address the court from the podium or from the table? 11 THE COURT: I don't really care. I don't care with 12 respect to either the government or the defense whether they 13 wish to speak from the table or from the podium, whatever they 14 find is more comfortable. 15 MR. BARKOW: Thank you, your Honor. 16 Your Honor, what I would like to do is start briefly 17 with the evidence that we are seeking affirmatively to 18 introduce that was the subject matter of our first motion in 19 limine. Collectively the evidence at issue comprises a small, 20 in terms of time, but significant and highly probative segment 21 of our overall proof. It's relevant for many reasons which are 22 set forth in our brief and the danger of unfair prejudice, 23 particularly in light of the willingness of the government to 24 agree to a jury instruction with respect to the Luxor evidence, 25 the Cole evidence and the Abu Sayef evidence, to have an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 449 45LSSAT6 1 instruction that these defendants did not participate in those 2 incidents means that the danger of unfair prejudice does not 3 outweigh its probative value. 4 We believe that this evidence collectively is 5 probative for several reasons. 6 First, that it provides background and context to the 7 charges in this case; in particular, it demonstrates the risks 8 posed by these defendants' conduct, risks that because they 9 knew about these incidents they knew they were creating by 10 their conduct. 11 It also relates, and this is related, but to the 12 knowledge and the intent of these defendants with respect to 13 all of the charges. It is also relevant because with knowledge 14 of these incidents and these facts the defendants knew the 15 audience that would be receiving their statements, for example, 16 Ms. Stewart's release of Sheikh Abdel Rahman's withdrawal and 17 support for the cease fire and Mr. Sattar's issue of the 18 ghost-written fatwah. These defendants knew what their 19 audience was and they knew that audience had participated and 20 committed acts such as the Luxor attack and the Abu Sayef 21 kidnappings but nonetheless engaged in their conduct. 22 It is also relevant to the materiality of Ms. 23 Stewart's false statements and the evidence also qualifies in 24 some instances as overt acts by co-conspirators in furtherance 25 of the charged conspiracies, sometimes the conspiracy as it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 450 45LSSAT6 1 existed in fact although not in law at the time, and it is also 2 relevant to prove the existence of those conspiracies, the 3 membership of various people, particularly Taha in those 4 conspiracies, and the intent of the co-conspirators as well. 5 Some of these categories of evidence are statements in 6 furtherance of the conspiracy yet others are relevant to show 7 the effect on the listeners or the people who heard the 8 evidence, such as the Taha, Bin Laden 1998 fatwah, and the 2000 9 pledge of jihad to free Sheikh Abdel Rahman. We have detailed 10 our theories of admissibility in our brief with respect to 11 theories of evidence and I am sure the court has questions of 12 them. I was not planning going through them one by one but 13 would be responsive of course to any questions. 14 I wanted also to give a brief introduction to our 15 position on the First Amendment motion which is in the second 16 motion in limine filed the other day. And, that is, that far 17 from being frivolous, as Mr. Tigar suggested on Wednesday, our 18 proposal is grounded in Second Circuit case law. It was our 19 proposed jury instruction was approved in substance and it is 20 adapted from the jury instruction by Chief Judge Mukasey in the 21 Abdel Rahman case and it was approved specifically by the 22 Second Circuit on appeal and it, in fact, confers more 23 protection to the First Amendment rights of these defendants 24 than they are entitled to under controlling Second Circuit 25 precedent, particularly Rowley. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 451 45LSSAT6 1 THE COURT: That was a jury instruction in the context 2 of the final instructions to the jury, right? 3 MR. BARKOW: That is correct. And that is what we are 4 asking for, your Honor, not as an initial instruction. Under 5 the Rowley case -- 6 THE COURT: You know, I will go through all of the 7 motions. And I really would like as much as you want to tell 8 me on each of the motions without even asking for my 9 provocative questions. But I will stop you on the First 10 Amendment motion because I do have an observation about a lot 11 of what is presented to me on motions in limine. 12 One of the things that I said in terms of the motions 13 in limine is that I really think that it's important to -- in 14 making the motions in limine -- explain to me what you all 15 think has to be decided now because there are reasonable areas 16 that should only be decided on a 403 basis as the case 17 proceeds. You ask yourself what is the evidence? What does 18 this evidence add in the context of everything that has gone on 19 before? Is the addition unfairly prejudicial? Is it 20 cumulative based upon all of the evidence? 21 And those are 403 determinations that the Court of 22 Appeals says are helpful to be made in the course of the trial. 23 I just say that as an observation. It doesn't directly apply 24 to the First Amendment issues that are raised. 25 On the other hand, there is so much of the First SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 452 45LSSAT6 1 Amendment motion in limine that is, in effect, asking for 2 premature rulings from the court. You say this is the jury 3 instruction that you will seek and at another point in your 4 papers you say you request leave to file a jury instruction. 5 My response to that is by all means file a jury instruction. 6 Objections to jury instructions haven't even been due and I 7 have made it clear that I don't intend to rule on jury 8 instructions for some time. 9 We are a reasonable time away even from opening 10 statements. The notion that I have to rule now on jury 11 instructions without any evidence in the case, whether to give 12 this instruction or not give this instruction, is, I don't 13 think, right -- I just don't. And I don't intend to rule on 14 jury instructions before trial. So to go through this effort 15 over a jury instruction is, I think, premature, first. 16 Second, you say, well, it's also important to decide 17 this on the First Amendment issue because you think there is 18 some potential evidence that defendant Stewart's subjective 19 intent may not be relevant and may be excluded. Well, we know, 20 as I repeatedly say, that whether a defendant chooses to 21 testify is completely up to the defendant advised by counsel. 22 The court doesn't get involved in that at all. That is 23 completely the defendant's choice advised by counsel. And it 24 is certainly somewhat, it appears to me, premature to start 25 dealing with motions in limine, the real substance of which may SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 453 45LSSAT6 1 be should there be any limits on if the defendant should ever 2 testify like their testimony may be -- let me finish, as long 3 as you invited a question -- and then on top of that there is 4 the important distinctions that were drawn in Judge Mukasey's 5 charge about the way in which you can use people's opinions or 6 not use people's opinions as relevant evidence or not, and we 7 deal here with crimes, alleged crimes where the mental intent 8 is at issue, so that the kinds of distinctions that have to be 9 drawn are ones that the court would only define with great 10 care. And the notion that I would decide all of those things 11 on in a motion in limine is not something that I think I am 12 required to do and, again, I think is somewhat premature. 13 The other aspect of the motion -- and, again, the 14 government is welcome to offer me any instruction and you don't 15 ask that it be given now, just that I give it in final 16 instructions which, so far as I can tell from the parties, is 17 not around the corner. 18 There is another aspect to that motion which is -- and 19 I won't go through all of the additions of subjective belief 20 that are included in the motion which I have said require great 21 care. There is also the issue of political conditions in Egypt 22 and I am pointed to the rulings that Judge Mukasey made, Chief 23 Judge Mukasey made, and which were affirmed by the Second 24 Circuit for the exclusion of expert testimony. 25 I am also a long way from having any proffers in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 454 45LSSAT6 1 case of any expert testimony with respect to any proffered 2 experts, and I surely couldn't rule on that without getting 3 some proffers with respect to what the proposed expert 4 testimony is. And I certainly couldn't rule, as a matter of 5 law from the outset, that nothing about the political situation 6 in Egypt could ever come in. 7 Now, I fully appreciate what was rejected by Chief 8 Judge Mukasey and affirmed by the Court of Appeals as Mr. Stern 9 pointed out the other day on this motion. The notion of the 10 political situation in Egypt has such a broad stroke that it 11 would not readily lend itself to a simple ruling on a motion in 12 limine don't talk about the political situation in Egypt, 13 because, as Mr. Stern said, there are issues like the cease 14 fire and there are specific allegations in the indictment about 15 what was going on in Egypt and what the effect of the cease 16 fire or withdrawing from the cease fire would be, so that it 17 struck me in reading the motion that it doesn't lend itself to 18 the kind of absolutism at the outset that I seem to be asked to 19 do. 20 I haven't been given any proffers of expert testimony. 21 That was what Judge Mukasey ruled on and was affirmed by the 22 Second Circuit. I assume without deciding that if the 23 situation is the same and the proffers are the same, I will 24 look at what Judge Mukasey did and what the Second Circuit said 25 and, well, that looks like that is precluded by what the Second SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 455 45LSSAT6 1 Circuit is a right ruling. But these are matters that have to 2 be dealt with with great precision in light of the allegations 3 in this case and the way in which the evidence proceeds. 4 I assume, and maybe some of the defendants will 5 correct me, that part of the opening statements in this case 6 will not be "ladies and gentlemen, you will hear that whatever 7 the defendants did was justified because of the terrible 8 political situation in Egypt. You will hear that what the 9 defendants did was to attempt to bring right and justice to the 10 people of Egypt." I assume that because the defendants already 11 agreed in response to the other motion in limine that all 12 defense counsel are well aware of limits of opening statements 13 and it's not a time for argument. It's a time to explain to 14 the jury what counsel expect the evidence to show or not to 15 show. 16 People live with the consequences of what they say in 17 opening statement. If they tell the jury that something is 18 going to appear in the evidence and it doesn't, people pay. At 19 the same time, people run the risk that if they begin to make 20 argument or anything that is improper in opening statement 21 there is an objection and they get a sustained objection, which 22 is not a good way to begin. 23 All of this is a very long question, I guess, which 24 says that on the motion in limine on the First Amendment 25 motion, which includes the political situation in Egypt, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 456 45LSSAT6 1 seems to me -- and the defendants have said that they don't 2 intend to submit anything on it -- that the motion is 3 premature. It has lots of parts and it appears to me to be 4 premature. And I really think that it's important for all 5 parties to focus themselves on the important things that they 6 should be dealing with and also in making arguments to me to 7 assure rigorously that the motions are really necessary or 8 appropriate and that all of the arguments in those motions are 9 well founded. It doesn't help to disguise well-founded 10 arguments with lots of others that are not. 11 So that is my reaction to the motion. 12 You are welcome to tell me anything you want about 13 your First Amendment motion. 14 MR. BARKOW: Your Honor, the reason we filed the First 15 Amendment motion, the political-situation-in-Egypt motion, and, 16 in fact, all of what I would call the defensive motions in our 17 first motion in limine relates to the opening statements. And 18 we were anticipating, based on the course of the litigation and 19 various statements by various defendants, that these issues 20 might be raised and mentioned in opening statement. Rather 21 than putting ourselves and the defendants in a situation where 22 we would object in the middle of their opening statement and 23 seek a curative instruction in the middle of their opening 24 statement, we thought that we should bring our concerns to the 25 attention of the court now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 457 45LSSAT6 1 If the defendants are to say with respect to the First 2 Amendment motion in limine, for example, that they don't intend 3 to talk about the things that we talk about in our First 4 Amendment motion, then I guess we would agree with the court 5 that it's premature to talk about it now because if it isn't 6 raised until cross examination and if it won't get raised in 7 cross examination it still would be premature. But we have no 8 indication now that the issues won't be raised and we suspect 9 they are. Some of the motions in limine we filed in -- some of 10 the defensive motions we took in the first motion in limine we 11 received responses, for example, argument in opening statement. 12 It's an obvious proposition. We didn't have to brief it very 13 far. We received a response that said we won't argue in 14 opening statement. We haven't received a response. We won't 15 argue that Ms. Stewart's conduct was protected by the First 16 Amendment. And one of the reasons I was going to say I was 17 going to try to reserve some of my time was I don't know -- 18 THE COURT: Perhaps it was a mistake but I didn't set 19 a time for this. 20 MR. BARKOW: I didn't mean to say reserve time. What 21 I meant to say was why I wasn't necessarily going to get into 22 too much detail now is I don't know what the defense position 23 is on some of these issuers and we too don't have a proffer of 24 that evidence. If there is not going to be any mention of the 25 First Amendment in the opening statements, then the motion is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 458 45LSSAT6 1 premature. If the defendants were to proffer to the court that 2 they were going to say something about it, then maybe that 3 would focus the issues more. 4 So perhaps I should move to what I call our 5 affirmative motions in limine because those are things that we 6 have already decided we would like to mention in our opening 7 statement and we don't want to be in the situation where we 8 draw an objection in the middle of our opening statement, and 9 perhaps respond to the defendants if they say they are going to 10 mention the subject matter of our defensive motions. 11 And I was intending, although I will take your Honor's 12 invitation, I will talk in some details about these and answer 13 questions as they come up. 14 With respect to the Luxor evidence, we believe that 15 the Luxor evidence is relevant to all of the charges in this 16 case against all of the defendants. First of all, it is 17 important background and context to all three of these 18 conspiracies. These defendants operated in a world, in the 19 real world where the Luxor incident occurred and people were 20 killed and they were killed because of Sheikh Abdel Rahman. He 21 was the inspiration of that incident. We are not saying that 22 he directed it but he was the inspiration of it. And these 23 defendants knew about the Luxor incident when they engaged in 24 their conduct. 25 The Luxor incident was perpetrated by people who left SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 459 45LSSAT6 1 leaflets on the scene connecting what they had done to Sheikh 2 Abdel Rahman. And these defendants knew that, but nonetheless 3 all three of them worked together to release his statement that 4 he no longer supported a cease fire -- a cease fire that I 5 think the defendants would concede was prompted at least in 6 part by the Luxor incident. And so his statement that he 7 doesn't support the cease fire is, in our view, a directive to 8 go back to the days of the Luxor incident. And, therefore, the 9 Luxor incident provides vital background and context of the 10 reality in which these defendants operated and the risks that 11 they created, the risks that more people would die inspired by 12 Sheikh Abdel Rahman because they communicated his end of 13 support for the cease fire, because they communicated the 14 ghost-written fatwah in his name that Jews should be killed. 15 Similarly, and relatedly, we view the evidence as 16 relevant to their knowledge and intent. I am not going to 17 repeat myself because it's related but when they acted in 18 disseminating these messages their knowledge of Luxor and what 19 happened in Luxor is relevant to their intent. Mr. Sattar is 20 charged with participating in a conspiracy to kill and kidnap 21 and his intent to further the goals of that conspiracy are 22 illuminated by the fact that people were in fact killed in 23 Sheikh Abdel Rahman's name in Luxor. 24 The evidence is similarly relevant to Taha. Taha, the 25 evidence will show, was connected to the Luxor incident. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 460 45LSSAT6 1 states in a phone call that he basically admits a connection to 2 that incident and he is an unindicted co-conspirator in this 3 case and therefore his connection to the murder of people in 4 Luxor is relevant to his membership in a conspiracy to kill and 5 kidnap, his intent to participate in such a conspiracy, and the 6 existence of that conspiracy. 7 It's for those reasons that we say that the Luxor -- I 8 am sorry? 9 THE COURT: Go ahead. 10 MR. BARKOW: It's for those reasons we say the Luxor 11 incident is an overt act in fact in furtherance of the 956 12 conspiracy, and perhaps the right legal rubric to view that 13 under is background, context and existence of a conspiracy. 14 THE COURT: You know, go ahead. 15 MR. BARKOW: Though it's our view, and we believe the 16 evidence will show, that the conspiracy in this case existed in 17 fact, in reality, prior to the charging date in the case; that 18 there were people, including Taha, who had agreed to further 19 the objects of that conspiracy. But at one point that wasn't 20 even a violation of U.S. law because that statute came into 21 existence in 1996. But the Luxor incident was perpetrated by 22 people who had the motive to free Sheikh Abdel Rahman. Taha 23 was connected to it and Taha is alleged to be a co-conspirator 24 of Mr. Sattar, a co-conspirator of Mr. Yousry and Ms. Stewart 25 in the first count, and he is at the center of the conspiracy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 461 45LSSAT6 1 that Mr. Yousry and Ms. Stewart are alleged to have furthered 2 and provided material support to. And so his connection to 3 that is factually viewed, an overt act in furtherance of the 4 conspiracy that he is a member of. And perhaps the legal 5 rubric to view it under is background and context, but it 6 really is an overt act in furtherance of a conspiracy. For 7 example, if people, and I think the hypothetical is in our 8 brief, if -- 9 THE COURT: You know, it's not clear to me who started 10 the hypotheticals. The defendants used them in their last set 11 of motions and you used them in your set of motions. 12 Hypotheticals are less valuable to me than the proffers of the 13 evidence in this case and how those proffers fit into the case 14 law. I have seen lots of hypotheticals in all of the papers 15 from all the parties, but truly the thing that is most helpful 16 to me are the proffers are what the evidence would show in this 17 case and why that evidence is relevant and satisfies 403 and is 18 consistent with the case law. 19 Now, you seem -- and I fully understand the arguments 20 about background and context and the cases with respect to 21 that. And in your papers I believe you also told us about how 22 there are conversations in this case about Luxor in the course 23 of the conspiracy alleged in this case. Fair? 24 MR. BARKOW: Yes. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 462 45LLSAT7 1 THE COURT: Now, you seem to -- when you approach the 2 argument of overt act in furtherance of the conspiracy, you 3 seem to -- because in your papers, in your argument you talk 4 about this being an overt act in furtherance of the conspiracy 5 in fact, but then you say, perhaps better described as 6 background and context. Background and context, I understand. 7 And the question that arises with respect to the 8 argument of overt act in furtherance of a conspiracy in fact is 9 not an overt act that's alleged in the indictment -- of course, 10 not all overt acts have to be alleged in the indictment. It's 11 before the conspiracy that's alleged in the indictment. 12 Conspiracies can begin before. 13 And my question is: If you are -- what cases would 14 you rely on for the proposition that I could consider it -- 15 it's not charged as an overt act. It's before the time of the 16 conspiracy charge. It's referred to as background in the 17 indictment and there can be conspiracies that are not charged, 18 there can be statements in furtherance of conspiracies not 19 charged. But if you're relying on an independent basis, in 20 addition to background, context, for the indictment charge, 21 what cases would you point to that I could make that kind of 22 determination, admit this as an overt act in furtherance of the 23 conspiracy before the conspiracy charge in the indictment has 24 begun. 25 MR. BARKOW: My cases, your Honor, would be by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 463 45LLSAT7 1 analogy. So I don't have a case that says, an overt act -- I'm 2 sorry, that evidence is admissible as an overt act in 3 furtherance of a conspiracy before it exists, with that 4 language. 5 But we cite many cases in our brief that talk about, 6 for example, straddling the Monaco case, the Smith case, the 7 Ferrara case, the Flores case -- involved cases where evidence 8 that predated the start date of a conspiracy, and in some cases 9 predated the illegality of the conduct itself, was admissible 10 as evidence of the conspiracy. And so -- 11 THE COURT: But is that admissible in any way other 12 than background and context? In other words, I mean, are we -- 13 surely if an act is an overt act in furtherance of the 14 conspiracy, it's, on its face, it would be relevant, and not 15 unfairly prejudicial, depending upon how the evidence goes. 16 And if you're relying on the fact that this is an overt act in 17 furtherance of the conspiracy and you're relying upon those 18 line of cases, then what I was looking for was some cases that 19 stand for that proposition. As opposed to simply, Look, this 20 is background and context, genesis of the conspiracy, referred 21 to in the course of the conspiracy, necessary for the jurors' 22 understanding of this conspiracy that's charged. 23 I understand all of that. My question is: You seem 24 to be trying, also, to get an additional arrow in the quiver 25 based upon overt act in furtherance of the conspiracy. And if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 464 45LLSAT7 1 you are, then I'd want to know what cases you rely on for that 2 proposition. 3 MR. BARKOW: I do not have a case that stands directly 4 for that proposition. I think that as, I guess a matter of 5 inference and reasoning, it makes sense, and by way of analogy 6 to the background and context cases, I think those cases 7 support the legal proposition that the evidence would be 8 admissible as overt acts in furtherance of the conspiracy. 9 And at the end of the day, the government just has the 10 evidence and wishes to get a ruling that it is relevant and 11 admissible, and the legal rubric that it comes under, whether 12 it's termed background or overt act, I don't believe -- 13 THE COURT: I know this doesn't -- is not 14 determinative for you, but when I decide motions, I really do 15 look at everything that's presented before me and make the 16 determinations based upon the facts that are proffered to me 17 and -- so I really don't reach a point in making determinations 18 that the basis for them doesn't make a difference. 19 MR. BARKOW: That's not what I meant to say, your 20 Honor. What I'm saying -- I do not have a case that says under 21 the rubric of overt act in furtherance of the conspiracy this 22 kind of evidence is admissible. I also don't have a case that 23 says it's not. And so I think it's an open question to fit it 24 into that legal rubric. 25 But I have a lot of cases that say it's admissible as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 465 45LLSAT7 1 background and context. And that's one of the reasons I 2 started today in my oral presentation with that. And we think 3 that it's clear that this evidence is admissible under that 4 theory as to all defendants. But I don't have a case as to the 5 other proposition, either way. 6 THE COURT: Let me ask you another question just about 7 the nature of the evidence. It seems to me that the substance 8 of the evidence as reflected in your papers is that there are 9 two witnesses, two live witnesses. One is a direct witness, 10 eyewitness. 11 MR. BARKOW: Right. 12 THE COURT: And the issues that are presented with 13 respect to alleged hearsay are presented only with respect to 14 the -- what do you call them, the first witness and the second 15 witness -- the witness who is the hotel manager. 16 MR. BARKOW: That's correct. The hotel manager has 17 some evidence that is not hearsay, that doesn't depend on the 18 excited utterance exception. But he wasn't there at the time 19 of the incident. So his nonexcited utterance evidence relates 20 to his going to -- well, I guess he could testify, although 21 this part might not be that persuasive, he could testify that 22 he saw the person in the lobby. And then -- but more 23 importantly, he went to the hospital afterwards and he saw the 24 victims of the attack. I'm not certain that I put that in the 25 motion in limine. So I can proffer that to the Court right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 466 45LLSAT7 1 now. 2 Basically, that witness, the hotel manager, after 3 having this conversation with the elderly eyewitness, went to 4 the hospital and saw people who were injured, basically. And 5 he estimates that the number is more than 10, basically. And 6 so that would be additional evidence, and corroborative 7 evidence, of the fact that people were injured. His testimony 8 is not graphic. His testimony would be that he saw people with 9 bullet wounds, someone who appeared to be in shock; people with 10 bandages; and that he provided water and sheets and that sort 11 of thing to those people. So he does have some direct evidence 12 and nonexcited utterance evidence as well. 13 But the other witness is entirely direct evidence. 14 THE COURT: I'm sure that with respect to the evidence 15 at the hospital, where there has been no proffer, really, that 16 there would be a hearsay issue raised because he doesn't -- he 17 would have no way of knowing who these people are without 18 someone telling him. 19 MR. BARKOW: I think that would go to weight and not 20 admissibility in this situation, because for example, one of 21 the people he knew, and he knew that that person who was 22 injured was a tour guide, and I think the evidence would show 23 pretty conclusively that there's nothing to do in Luxor other 24 than to go to these sites, and he was there within a very short 25 time after the incident, and the hospital was overpopulated, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 467 45LLSAT7 1 guess for lack of a better word. And so I think that that 2 would go to weight. 3 And certainly the defense could argue that these 4 people, by coincidence, happened to be in the hospital. But 5 after the other witness testifies about what had just happened 6 an hour ago, I think that it would be a safe inference that 7 that's why those people were in the hospital. And I wouldn't 8 intend to ask the hotel manager what the people in the hospital 9 told him about what happened. It would just be his 10 observations, so the only hearsay issue raised for him is the 11 excited utterances by the gentleman who had the blood on him 12 from whom he got the note. 13 THE COURT: Okay. Go ahead. 14 MR. BARKOW: Would your Honor like me to continue on 15 Luxor or -- 16 THE COURT: Anything else that you would like to tell 17 me. I thought you had covered Luxor, but I could be wrong. If 18 there's anything else you really want to tell me about Luxor, 19 by all means. 20 MR. BARKOW: The rest is in the brief, your Honor. 21 The only other theory I would just touch on 22 specifically that the Luxor evidence would also be evidence of 23 the materiality of Ms. Stewart's statements. The rest of the 24 theories are all set forth in the brief as well, as is this 25 one, but we view it as material, and it's because in part, Miss SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 468 45LLSAT7 1 Stewart knew about Luxor, knew what had happened there, may 2 have disagreed about why it had happened, but I think again 3 that would go to weight and not admissibility. But she was 4 specifically told about the Luxor incident in connection with 5 the affirmations that were mailed to her that she signed, and 6 she signed them. And in the government's view, obviously, she 7 signed them falsely, and the purpose, which was evident to her, 8 was that the purpose of these affirmations was to stop things 9 like Luxor from happening again, and by lying and saying that 10 she would abide by the SAMs and abide by the terms of the 11 affirmation, she materially frustrated the purpose of the 12 affirmation and thereby her false statement was material to the 13 context of the statement. And so we think it's admissible on 14 that ground as well. 15 And similarly, the Abu Sayyaf evidence would come 16 under that same legal theory. The Abu Sayyaf evidence would 17 show what Ms. Stewart knew about during the prison visit. And 18 also was specifically referenced in the materials that 19 accompanied the affirmation, which she signed, and therefore 20 when she signed it and falsely stated that she would abide by 21 the terms of the SAMs and abide by the terms of the 22 affirmation, she knew that she was materially frustrating the 23 purpose or a purpose of the affirmation, that is, prevention of 24 incidents like the Abu Sayyaf kidnappings from happening and 25 therefore materially frustrated the whole purpose of the SAMs SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 469 45LLSAT7 1 and the affirmations. 2 The theories that I put forward on Luxor pretty much 3 apply on all fours with the Abu Sayyaf kidnapping evidence as 4 well, except for the overt act theory, which -- 5 These defendants, the evidence will show, knew about 6 the Abu Sayyaf kidnappings and knew about the demands that 7 Sheikh Abdel Rahman should be freed or they would, they said, 8 they would be head some of their hostages. 9 The government actually -- well, so the evidence will 10 show that. 11 When Ms. Stewart then made her statement, and there's 12 a factual agreement as to what exactly she said, but we believe 13 that goes to weight and not admissibility -- when she said, 14 Good for them, when informed about the Abu Sayyaf kidnappings, 15 we believe that that is very powerful proof as to her intent 16 and her knowledge, both -- in particular as to her release of 17 Sheikh Abdel Rahman's directive to end the cease fire, because 18 it shows that she condones or at least doesn't react negatively 19 to events like the Abu Sayyaf kidnappings. 20 Now, the defendants say that the evidence will show 21 that she actually made negative comments about it, and 22 obviously that might undermine the inference the government's 23 seeking to draw, but that really is the issue, and I think that 24 shows why the evidence is relevant, because condoning or 25 supporting that action is evidence of her guilt; and perhaps SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 470 45LLSAT7 1 saying that it's a bad thing would be evidence of not being 2 guilty. 3 The evidence is also relevant to the state of mind of 4 Mr. Sattar and Mr. Yousry. Mr. Yousry was there when -- he's 5 the one who mentioned it first during the prison visit. And we 6 believe that that conversation is a violation of the SAMs. And 7 his mention of it is evidence of his intent to violate the 8 SAMs, and to materially support the conspiracy to kill and 9 kidnap as well. 10 Mr. Sattar knew, the evidence will show, about the 11 kidnappings, and therefore his participation in the withdrawal 12 of support for the cease fire and the ghost-written fatwa shows 13 that he knows, and all these defendants know, the risks posed 14 by their conduct. That there are people around the world who 15 will commit acts of violence, of kidnapping, as is one of the 16 requirements of the count of conspiracy, in order to get Abdel 17 Rahman out of jail. And nonetheless, they engaged in their 18 conduct, and we think that's very probative of their intent and 19 their knowledge to further the conspiracy to kill or kidnap or, 20 in Mr. Sattar's case, actually to participate in it. 21 I made the argument with the materiality with respect 22 to Luxor. It applies equally here. 23 Finally, with respect to the Abu Sayyaf evidence, it's 24 relevant for the simple fact that Miss Stewart, Mr. Yousry and 25 Sheikh Abdel Rahman talk about it. If the evidence shows that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 471 45LLSAT7 1 they're talking about this incident and it's in a vacuum, the 2 jury would rightfully think, What are they talking about? And 3 would have no context to understand the -- this -- the gravity 4 of what is being spoken about. And I recognize that there is a 5 balancing test, but we believe that with an instruction that 6 these defendants didn't participate -- or a stipulation or 7 what-have-you -- that they didn't participate in it, as the old 8 Chief case recognizes, the narrative richness and the 9 government's ability to prove its case in a way that allows the 10 jury to make a morally reasonable ascertainment of guilt, to 11 satisfy the jurors' expectations of what the government would 12 prove and not prove, to tell a colorful story with descriptive 13 richness, require that there be some evidence to show what 14 they're talking about, what actually happened in the world. 15 And our evidence is not graphic of the Abu Sayyaf 16 incident. It's not lengthy -- in the context of a four- to 17 six-month trial, it's extraordinarily brief. And we think the 18 probative value is high, for the reasons I've articulated, and 19 the danger of unfair prejudice, particularly in light of the 20 structure and stipulation that we're willing to have given or 21 enter into, does not substantially outweigh that high probative 22 value. 23 THE COURT: A couple of questions. First, you're not 24 arguing that Abu Sayyaf is an overt act in furtherance of any 25 conspiracy charge in this case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 472 45LLSAT7 1 MR. BARKOW: Correct. 2 THE COURT: Second, the parties make it clear in their 3 papers on both sides that there is a discussion of Abu Sayyaf, 4 and in fact, it's -- it's a reasonably detailed discussion 5 because presumably, that's the discussion in which details are 6 given to Sheikh Rahman about what happened. Right? 7 MR. BARKOW: It's this detailed, your Honor. 8 THE COURT: I'm sorry? 9 MR. BARKOW: I'll tell the Court how detailed it is, 10 and I think Mr. Yousry's papers set forth most of -- I mean 11 obviously, we disagree on the transcription, but most of the 12 length and content of it. That Mr. Yousry raises the issue 13 that it's happening, that it's been reported by the New York 14 Times, and that Ms. Stewart then makes her comment. 15 But the evidence will also show that Sheikh Abdel 16 Rahman already knew about the Abu Sayyaf kidnappings before 17 Mr. Yousry and Ms. Stewart got there, and will show that -- so 18 he came to this meeting armed with the knowledge. It didn't 19 depend on that conversation. 20 THE COURT: He -- 21 MR. BARKOW: I guess my point is, Ms. Stewart and 22 Mr. Yousry did not necessarily have to communicate all the 23 details to him because it was some -- a conversation that he 24 entered with more detail than was spoken in that meeting. And 25 so what we believe we should be entitled to do is provide some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 473 45LLSAT7 1 of that additional detail for context and background, and to 2 prove -- to fill that hole that the jurors will expect us to 3 fill. And our method of doing so involves various options, one 4 of which is merely a videotape of the demand made by the Abu 5 Sayyaf kidnappers where they hold up the note and a copy of 6 that note, and that would take 20 minutes, and it's simply not 7 an inflammatory piece of evidence. Without any argument being 8 made that these defendants participated in it, it just shows 9 what happened. The note mentions Sheikh Abdel Rahman by name. 10 THE COURT: But the question is -- and the defendants 11 say in response to some of these that it's premature, they say. 12 MR. BARKOW: The ruling -- 13 THE COURT: No -- well, with respect to some of the 14 rulings, they're premature. And the question on Abu Sayyaf 15 would be, Okay, the evidence will show, so the government 16 proffers, here's what the parties discussed, and here's what 17 the conversations among the parties show. We expect the 18 evidence in the case to show. That's one set. 19 The second evidence, the independent evidence, of Abu 20 Sayyaf, what really happened. And then the question is -- it's 21 this that I think that the defendants say is premature -- how 22 much independent evidence of what happened should go in, 23 particularly when the most relevance of this evidence is what 24 did the parties say and what was on the parties' minds at the 25 time that they were talking about Abu Sayyaf? And when I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 474 45LLSAT7 1 know yet, for example, from the proffers, what the defendants 2 knew about Abu Sayyaf, other than what they say. And there's 3 going to be evidence about what they said, or so the 4 representation is, if I don't say, Oh, no, Abu Sayyaf is 5 completely out of bounds in response to the motion in limine. 6 But then the question is: How much independent evidence? 7 Because why is that evidence being offered? Is it being 8 offered really to explain to the jury what's going on in the 9 conversation? What's going on in the defendants' minds? What 10 did they mean at the time that they said these things? 11 So then the question then becomes, What about the 12 independent evidence? And how much, if any, of the independent 13 evidence goes in? And if memory served me right from the 14 motion papers, it's there that a question is raised as to 15 whether that ruling is premature. That would not mean that Abu 16 Sayyaf, which is discussed during the course of the 17 conspiracy -- right? It's discussed during the course of the 18 conspiracy; it's discussed during one of the prison visits; 19 it's alleged that that conversation was in violation of the 20 SAMs. Right? 21 MR. BARKOW: Correct. 22 THE COURT: So the arguments for the admissibility of 23 all of that are really quite powerful. 24 On the other hand, the question of how much 25 independent evidence about what goes in is a question -- in one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 475 45LLSAT7 1 of those questions about the balancing analysis that asks 2 what's the nature of the evidence, where are we? What's the 3 evidence really being offered for? What additional probative 4 value versus what possible prejudice? Isn't that right? 5 MR. BARKOW: Yes, it is. 6 THE COURT: Why do I have to decide that now? 7 MR. BARKOW: Obviously, the Court doesn't have to 8 decide -- 9 THE COURT: By the way -- okay. 10 MR. BARKOW: We're trying to plan our opening 11 statement, essentially. 12 THE COURT: I'm sorry? 13 MR. BARKOW: We're trying to plan the content of our 14 opening statement. 15 THE COURT: Sometimes, briefer is better. 16 MR. BARKOW: We don't anticipate it's going to be that 17 long. 18 THE COURT: Though comments that I've made in similar 19 fashion have fallen on exceedingly deaf ears. 20 Let me ask you just a couple of other questions on 21 that. In your papers, you say that the government's 22 estimate -- and this is another part of your papers -- is that 23 the length of the trial would be four to six months, and the 24 defendants have estimated more. Now, I read that twice. And 25 my recollection is that the government's estimate was four to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 476 45LLSAT7 1 six weeks and that it was the defendants who went up to six 2 months, and that I was then told to tell the jury, four to six 3 months. 4 And I fully appreciate that there has been an 5 inability to work out stipulations that may lead to a lengthier 6 trial. And, you know, the parties have acknowledged to me that 7 when they do those things before the jury, the jury is 8 exceedingly, exceedingly bright, and they sense what's going 9 on. But I was troubled, I was troubled. 10 Did I misread the papers? Didn't the government tell 11 me four to six weeks, and it was the defendants who then said, 12 No, tell the jury up to six months? 13 MR. BARKOW: Your Honor, our initial estimate of 14 the -- at the arraignment on the superseding indictment, we 15 stated four to six weeks. And we intended -- 16 THE COURT: And then you repeated it. I thought it 17 was either you or Mr. Dember when you came back. 18 MR. BARKOW: It wasn't me; I just started speaking in 19 this case a couple of weeks ago. 20 THE COURT: Mr. Dember said he's looked over the 21 record and he realizes the prior representations to the Court 22 was four to six weeks and he'll live that. Am I correct? 23 MR. DEMBER: I think when we ran the defendants in the 24 superseding indictment, that was my belief. It's grown to -- I 25 think -- that was just representing the government's case, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 477 45LLSAT7 1 the defenses'. 2 THE COURT: And when I face those estimates, I'm sure, 3 in this case before, what I've said, if the government's case 4 is really four to six weeks, the notion that the case will then 5 take up to six months seems odd. Possible? Of course. But 6 odd. 7 MR. BARKOW: If I could illuminate this a little bit: 8 At the arraignment, we stated four to six weeks, and as 9 Mr. Dember just said that was our estimate of our case. I 10 think from the beginning, based on conversations with counsel, 11 our estimate of the entire length of the trial has been about 12 four months. The defendants have taken -- the entire length of 13 the trial. Our case we view as four to six weeks. We have 14 not -- we've recently, now that we're on the eve of trial, 15 assessed that in a little more detail. 16 We think now that our case will take probably eight to 17 10 weeks. We still believe the whole trial should take four 18 months. Or less. But the defendants have taken a position 19 that it should see take -- that it will take six months. And 20 so it's hard to say -- 21 THE COURT: Up to. Up to. 22 MR. BARKOW: Up to six months. So I don't know. What 23 I can say is that the Abu Sayyaf evidence is not going to 24 increase the length of the trial by more than a few hours, 25 because the videotape is literally less than 30 minutes long. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 478 45LLSAT7 1 And -- but I don't mean to go back to that. But since it 2 arose -- 3 THE COURT: No, I'm sorry, I interrupted you. I 4 realize that. And it was simply -- something you said which 5 made me follow up on that. Let me just -- Mr. Yousry is 6 prompt. 7 MR. RUHNKE: Yes, your Honor, he's leaving. His 8 daughter is getting married tomorrow. 9 THE COURT: Mr. Yousry, you're voluntarily waiving 10 your presence? 11 DEFENDANT YOUSRY: Yes, sir, I do. 12 THE COURT: Any objections? 13 MR. BARKOW: No. 14 (Defendant Yousry exits the courtroom) 15 MR. BARKOW: May I proceed? 16 THE COURT: Yes. 17 MR. BARKOW: With respect to the Abu Sayyaf evidence 18 in particular, what we're seeking to prove, extrinsic to the 19 prison visit, is the fact -- at a minimum, the fact of the 20 demand. That it actually happened. The demand for Sheikh 21 Abdel Rahman to be free. And the way that would be proven at a 22 minimum is through the note that actually names him as someone 23 who should be released, lest negative consequences result, and 24 the actual press conference at which the Abu Sayyaf 25 representatives made the demand orally and held up the note. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 479 45LLSAT7 1 And we think that that's essential, in the same way that, in 2 all kinds of different contexts, parties corroborate things 3 that happen. 4 THE COURT: But why is it necessary to -- for me to 5 decide that issue now in order to give a reasonable opening 6 statement to the jury about what the evidence in the case will 7 show? The most important part, I take it, of Abu Sayyaf really 8 has to be from the nature of the case, what was discussed about 9 Abu Sayyaf. Right? 10 MR. BARKOW: That's correct, your Honor. 11 THE COURT: So then we're going into some evidentiary 12 detail, and I ask myself why is it necessary to reach that 13 conclusion now rather than to see the evidentiary richness at 14 trial and where that actually fits in at trial? 15 MR. BARKOW: I guess -- and I see your Honor's point. 16 And I guess our point is just that we would like to mention 17 some of the extrinsic evidence. For example, the demand. In 18 the opening statement. And if the Court were to rule now that 19 it was admissible, tentatively, even, we would mention it in 20 the opening statement and if later the Court decided that it 21 wasn't properly admissible, that would be a risk that we 22 subject ourselves to. That we would pay the price on. 23 But we also think it's relevant in the same way that 24 the Luxor evidence -- and this maybe is a more important theory 25 of relevance -- is that it shows once again that Sheikh Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 480 45LLSAT7 1 Rahman actually inspires terrorism. That his imprisonment 2 inspires people to kill and to kidnap. And it actually 3 happens. The defendants were not operating in a vacuum. They 4 were operating in the real world, in which that man's 5 imprisonment in-expired people like the Abu Sayyaf group to 6 kidnap people. And the fact that it's mentioned in the prison 7 visit doesn't establish that, in fact, people in the world were 8 kidnapping others to secure his release. And the fact that in 9 reality, that was happening, shows that the risks of that these 10 defendants created by their conduct were tremendous. And it's 11 very different in terms of its probative force. It's very 12 probative of their intent and their knowledge of the risks they 13 posed to show that it was really happening in the real world. 14 And when Mr. Sattar issued the ghost-written fatwa, he 15 created a substantial risk that people would die. And when 16 Ms. Stewart issued the directive that Sheikh Abdel Rahman 17 didn't support the cease fire anymore, she created a 18 substantial risk that people would die, because groups like the 19 Abu Sayyaf group actually are out in the world kidnapping 20 people in order to secure Abdel Rahman's release. 21 So there's a difference in probative force between the 22 extrinsic evidence and the tape that we think is substantial. 23 That doesn't necessarily address the timing issue. 24 The timing issue, in terms of your Honor's ruling, relates in 25 large part to our desire to include it in our opening SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 481 45LLSAT7 1 statement. But we believe that it is admissible, and again, if 2 the Court were to rule now that it were based on our proffer 3 and at the end of the day the Court were to conclude that it 4 wasn't, we would bear that risk and we would pay that price. 5 THE COURT: Yeah, I know, that's listening to the 6 music. But you've placed the issues before me, and you ask for 7 rulings and then say, never mind. 8 MR. BARKOW: I'm not saying that, your Honor. We do 9 want the ruling and we believe the evidence is admissible. All 10 I'm acknowledging, I guess, is that if we don't prove it all up 11 later, we pay the price. If the Court decides we didn't hold 12 up our -- what we had promised to do. We do believe that it's 13 admissible and can be ruled upon now. 14 THE COURT: By the way, just a general comment for 15 everyone: At various points -- I'm going to be reading lots of 16 legal papers and lots of motions on various pieces of evidence. 17 One formulation that's not one that endears itself to me is 18 that we are entitled to this evidence. 19 MR. BARKOW: Did I say that? I didn't mean to say 20 that. 21 THE COURT: Well, it's in the papers, and I just -- 22 the issue is, you know, on the facts and the law, should the 23 evidence be admitted? It requires, in individual cases, very 24 careful 403 balancing analysis that it doesn't blend itself 25 easily to note it was an entitlement. You actually did say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 482 45LLSAT7 1 entitlement before, but I just make that comment. 2 MR. BARKOW: I remember that. 3 THE COURT: It would help the papers. But go ahead. 4 MR. BARKOW: With respect to the Abu Sayyaf evidence, 5 I guess after making the point that it shows that Sheikh Abdel 6 Rahman actually inspires terrorists in fact in the real world, 7 that exhausts what I have to say at this point about the Abu 8 Sayyaf evidence. If it's okay, I can move on to two other 9 pieces of evidence that kind of fit into the same category, and 10 that is the September, 1998 Taha-Bin Laden fatwa calling on 11 Muslims to kill Americans. 12 And also the September, 2000, Taha-Bin Laden- 13 Al Zawahiri pledge to kill Sheikh Abdel Rahman with one of 14 Sheikh Abdel Rahman's sons in the background yelling, Avenge 15 the sheikh, and going for the spilling of blood. 16 These pieces of evidence would be proven in different 17 ways. The September, 1998 fatwa would be proven as follows: 18 Taha, in a telephone call acknowledges his participation in the 19 issuance of that Taha-Bin Laden statement, and adopts quite 20 specifically by page number to a specific newspaper an article 21 in his name, and next to which the text of the fatwa itself was 22 published. And he doesn't in the phone call repeat the content 23 of it, but he very clearly says, basically, I said it and it's 24 in the newspaper. 25 And so we view that as an adoption by him of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 483 45LLSAT7 1 statement. And that's how we would prove that, by introducing 2 that tape -- not tape, the recording, which would come in for 3 other reasons as well, and then the newspaper would come in as 4 adopted by him. That would contain the content of his 5 statement. 6 THE COURT: That wasn't -- was that alleged as an 7 overt act in furtherance of one of the conspiracy charges? 8 MR. BARKOW: I need to check that, your Honor. 9 THE COURT: I can certainly do that. 10 MR. BARKOW: I'm being told no. No. 11 So that's the first piece of evidence, or category, I 12 guess, because it consists of two different pieces of evidence. 13 And the other is the September, 2000 joint pledge to 14 free Abdel Rahman, and that would be proven by way of a -- I 15 think it's a 12-minute long or so, maybe even less, videotape 16 of the actual statements that kind of seriatim are made by the 17 three participants sitting under a banner that says: 18 Convention to support Omar Abdel Rahman. 19 We view this evidence collectively as relevant in a 20 similar way to the evidence I've already discussed, but here 21 directly, Taha is a member of two of the charged conspiracies, 22 and these are his statements. The more recent one, the 2000 23 statement, is committed during the charged conspiracies. And 24 the earlier, 1998 statement is committed during the pendency of 25 the conspiracy to defraud, which he is an unindicted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 484 45LLSAT7 1 coconspirator in -- although it's not alleged to the overt act 2 in furtherance of it, it is a statement in furtherance of that 3 conspiracy by a member of the conspiracy. 4 And it also shows -- in addition to being a statement 5 of a coconspirator, it also shows Taha's participation in these 6 various conspiracies, it shows he was a member of them, and it 7 shows its existence of those conspiracies, and it shows his 8 intent to participate in them and to further the goals of the 9 conspiracies. 10 So that would relate to the 371 conspiracy, Count 1, 11 as well as the Count 2 conspiracy, the 956 conspiracy, both of 12 which he's a member of; and also the material support charges, 13 because those essentially incorporate the 956 as part of it. 14 It's a conspiracy that's being supported. 15 We view it also as being relevant to Mr. Sattar's 16 intent and knowledge. For example, Mr. Sattar discusses these 17 things with Taha, but nonetheless works with him to issue the 18 withdrawal of support for the cease fire and to issue the 19 ghost-written fatwa calling for the killing of Jews, knowing 20 the person he's doing this with is someone who, on these 21 occasions, has called for killing Americans, plundering their 22 wealth, and freeing Sheikh Abdel Rahman while someone else 23 yelled, Avenge the sheikh by spilling blood. 24 So we think that is relevant to Mr. Sattar's intent. 25 The 2000 statement, the September, 2000 statement, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 485 45LLSAT7 1 also relevant to Miss Stewart's intent and knowledge, whether 2 she engaged in her activity post-dating that statement because 3 she faxed an article, the evidence will show, to Mr. Sattar and 4 later spoke about that statement by Taha, Bin Laden and 5 Al Zawahiri on the telephone. 6 We also view it as relevant to show the effect on the 7 listeners, and again kind of the world, the reality and the 8 context in which these defendants operate -- I'm not going to 9 repeat all those arguments unless the Court wants me to be more 10 specific, but basically in the world they were operating in and 11 in the world they engage in their activities, Taha, 12 Mr. Sattar's coconspirator and a member of the conspiracy which 13 the other defendants supported, was making statements like 14 this, and calling for things like this to happen. But 15 nonetheless, they engaged in their activities, creating a 16 tremendous risk that Americans would be killed, that their 17 wealth would be plundered and that Sheikh Abdel Rahman would be 18 avenged by its spilling of blood. 19 So those are the evidentiary theories we view as 20 admissible. And it seems as one of the primary objections at 21 least is merely the fact that Osama Bin Laden is connected to 22 these. And we recognize that Osama Bin Laden is a frightening 23 figure. But the reality is: So is Taha. And Taha is a 24 coconspirator of one of these defendants and was supported by 25 the other two. And Taha sat with Bin Laden and took these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 486 45LLSAT7 1 actions. 2 There's not going to be evidence, independent 3 evidence, of what Osama Bin Laden has done on other occasions, 4 and perhaps some of the potential prejudice could be cured by 5 instruction, but the fact is, he was -- Taha was there with Bin 6 Laden, and that is the person who he had aligned himself with. 7 THE COURT: The September, 2000 pledge is alleged as 8 an overt act in furtherance of one of the conspiracies, isn't 9 it? 10 MR. BARKOW: Yes, your Honor. 11 THE COURT: The 956. 12 MR. BARKOW: The 956 conspiracy. I neglected to 13 mention that. So those are our theories with respect to those 14 categories of evidence. And if the Court doesn't have 15 questions of those I'll move onto the Cole evidence. 16 We view the Cole evidence as admissible and relevant 17 to all of the charges here as well. Perhaps not the -- well -- 18 well, actually, with respect to all of the charges here as 19 well, the way that we intend to prove that is by eyewitness 20 testimony, and there are a few available eyewitnesses who would 21 testify basically that -- one would testify that he was there 22 and saw the boat come next to the Cole and explode. He himself 23 was injured. Not seriously, I don't believe. Not seriously. 24 A second possible witness is the medical officer on 25 the ship who could testify essentially to the injuries that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 487 45LLSAT7 1 occurred and the number of people which is alleged in the 2 indictment, the specific number. And this testimony -- this 3 was a serious incident. This testimony could be sanitized in 4 some way. We're not seeking to prove gore here, but he would 5 testify to the number of people who were injured. 6 And thirdly, there is a person who was present either 7 when it happened or right after who took pictures, and that -- 8 a picture or pictures could come in of what happened. 9 The evidence that connects this to the case is set 10 forth in our papers, and it is that the evidence will show that 11 Taha told Sattar that it had been reported that an Egyptian 12 male was involved and that the incident was, quote, close to 13 us, which we view as a statement -- perhaps linking Taha in 14 some way to that incident. 15 But more importantly, Taha then says to Mr. Sattar 16 that he should assist him in delivering a message to the United 17 States government suggesting that similar attacks might occur 18 or would occur unless Sheikh Abdel Rahman were freed. And that 19 specific evidence -- that is one category of evidence. 20 Another category is that then the evidence would show 21 that Miss Stewart and Mr. Yousry relayed to Sheikh Abdel Rahman 22 the views of Taha -- what was essentially by Taha a threat of 23 extortion to the U.S. government. 24 So we view this evidence as admissible under several 25 theories: First of all, simply because it was discussed and to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 488 45LLSAT7 1 provide the kind of real world anchor to what is being 2 discussed, we have talked about that, it's really the extrinsic 3 evidence issue. But we do view it as extrinsic evidence that 4 would provide context to the references in the calls. 5 Again, we don't object to an instruction or 6 stipulation that none of these defendants participated in the 7 attack, to diminish or eliminate the risk of unfair prejudice. 8 We also view it as highly relevant of Taha's state of mind, 9 again as a coconspirator in these conspiracies. He showed that 10 he was willing to use the Cole bombing to extort the United 11 States government to seek the freedom of Abdel Rahman, and that 12 shows that he has violent intentions and he's willing to at 13 least threaten violence if not use violence to gain Sheikh 14 Abdel Rahman's release, but that is simply not as persuasive if 15 the reality of what he's talking about isn't proven. He's 16 willing to use a bombing of a ship to extort the U.S. 17 government, but without evidence, the jurors -- obviously, the 18 jurors can't come in with knowledge about it. 19 We'd have to prove something in court if we want to 20 refer to it, and without evidence of what really happened to 21 the Cole, it doesn't provide the richness of what did this man 22 truly intend to do and what was this extortion and threat that 23 he truly intended to make? 24 It also is relevant in our view to the materiality of 25 Miss Stewart's false statements. Quite simply, the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 489 45LLSAT7 1 would not have let Miss Stewart go in to speak to Sheikh Abdel 2 Rahman if they would know that she would talk about the Cole 3 and the extortionate threat. So that shows that the -- that 4 because of what the Cole bombing was, because it was an attack 5 that resulted in the deaths of American sailors, because it was 6 a bombing attack, it shows that her false statement that she 7 wouldn't talk about things like this materially frustrated the 8 purpose of the affirmations. And this relates back to what 9 I've said before about materiality. But without evidence of 10 what really happened, that the richness of that wouldn't be 11 proven as well. 12 And it also is direct evidence of violations of the 13 SAMs because it was a prohibited topic, essentially. And it 14 provides context to what they were talking about. 15 THE COURT: Of course, the evidence that it's a 16 prohibited topic comes from the text of the conversations 17 themselves rather than from the extrinsic evidence. 18 MR. BARKOW: Correct, and this is probably a weaker 19 theory than the ones I just articulated, but it does -- 20 THE COURT: Never a good idea to use weak theories for 21 strong theories, though. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 490 45LSSAT8 1 MR. BARKOW: Well, I view them all as sufficient for 2 admissibility I guess. I am just conceding it. 3 THE COURT: But not of equal weight. 4 MR. BARKOW: Perhaps, yes. It does link what they are 5 talking about to the real world in the same way that the Abu 6 Sayyaf evidence does as well in a similar way but there is not 7 going to be evidence that it was -- well, actually in a similar 8 way because it links what is being discussed to the outside 9 world. 10 May I have just a moment, your Honor? Unless the 11 court has questions right now. 12 THE COURT:: Sure. 13 MR. BARKOW: That would conclude my affirmative 14 presentation. I am obviously available for questions or 15 perhaps I can respond to Mr. Tigar after his argument. 16 THE COURT: Okay. Because part of the defendants' 17 motion sort of overlaps with part of your motion which is 18 evidence from the Rahman trial. 19 MR. BARKOW: I forgot about that. I can talk about 20 that now as well. 21 As we say in our papers, what we seek to admit from 22 the Abdel Rahman trial is a limited category of evidence, for 23 example, the two speeches that we set forth in the brief, and 24 this evidence we believe shows that in fact Sheikh Abdel Rahman 25 is a proponent of violent jihad; that he opposed the United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 491 45LSSAT8 1 States and it's government and viewed the government as an 2 enemy of Islam; that he viewed himself as a religious leader 3 whose word would be, and should be, and in fact was followed, 4 and that he was the spiritual leader of this terrorist group. 5 In these speeches he says things like -- and they are 6 set forth in the brief -- jihad is jihad and performed with the 7 sword and canons and grenade and we basically don't fear the 8 word terrorist and the label terrorist. So that is what we 9 seek to prove here, both to show he was in fact a proponent of 10 violence and a violent jihad, and that the defendants knew 11 that. That they knew it at the very least that he said these 12 things. 13 Again, they might disagree with the import or the 14 interpretation or the conclusion that we seek to draw but that 15 would go to weight and not to admissibility. They could 16 testify if they sought to or perhaps in some other way 17 demonstrate that they didn't believe that he was in fact a 18 violent person. 19 THE COURT: By the way, since I have to read many of 20 these papers, it's not -- it's never, never a felicitous 21 description that the defendants could testify about this 22 because obviously it's completely up to the defendants whether 23 they wish to testify or not and they are fully free to make 24 those determinations on their own and I don't consider any 25 arguments in the papers about what the defendants could or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 492 45LSSAT8 1 could not do in the course of the trial. That is completely up 2 to the defendants. So it doesn't help the argument at all to 3 tell me about ways in which this could be explained or not 4 explained. I realize that you also say other evidence could be 5 introduced, okay, so be it. 6 MR. BARKOW: My point, your Honor, was really only 7 that I was trying to acknowledge the point of disagreement 8 between the parties. We believe that it shows that at the very 9 least it was claimed and alleged, we believe proven, that 10 Sheikh Abdel Rahman preaches violence. The defendants have 11 said or imply they disagree with that implication. But at the 12 very least it shows that they knew it was alleged. We believe 13 it shows they knew it and so we want to offer this evidence to 14 show that Sheikh Abdel Rahman did preach violence, was violent, 15 and that they knew that he was violent and preached violence. 16 And we do not intend to offer evidence of the details 17 of the criminal events in his case; for example, the plots to 18 bomb landmarks or to assassinate President Mubarak. We don't 19 intend to offer any evidence related to Emad Selam. We intend 20 to prove what I have said in a limited way by introducing some 21 of the speeches and the like. And also to prove that he was in 22 fact convicted; that he was found and adjudicated guilty. And 23 we view the evidence as relevant to the defendant's knowledge 24 of his dangerousness. It shows Sheikh Abdel Rahman's intent. 25 He is a member, an alleged member, of two of the conspiracies SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 493 45LSSAT8 1 and he is the personnel being provided in the material support 2 conspiracies and therefore his intent and the knowledge of his 3 intent, the kind of bringing him together with the outside 4 world, is relevant to know what his intentions were. It 5 provides context to the counts. It shows the risks again that 6 dissemination of this man's directives and fatwahs posed 7 because he is in fact a violent person and he preaches 8 violence, and so the evidence is relevant for all those 9 theories. 10 It's also relevant to show the effect on the 11 listeners, those who hear what Sheikh Abdel Rahman says. It 12 detects a consistent pattern of violent preaching and when he 13 says things that direct violence people listen. And we don't 14 intend at all, and we don't view this at all as questioning the 15 legitimacy of the defense function. It's simply relevant, in 16 our view, to our charges and there is no issue as to whether 17 Sheikh Abdel Rahman was entitled to a lawyer at trial -- of 18 course he was. But in the context of what happened here this 19 evidence is highly probative of his intent and the defendant's 20 intent. 21 THE COURT: All right. 22 MR. BARKOW: Thank you. 23 THE COURT: Mr. Tigar. 24 MR. TIGAR: If your Honor please, there are three 25 kinds of issues to which we would like to direct the court's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 494 45LSSAT8 1 attention. The first is that with respect to some of the 2 questions here, the court will be required to make Federal Rule 3 of Evidence 104(b) preliminary decisions about that and I want 4 to talk about that. Those, of course, would be subject to 5 appellate review by a clearly erroneous standard. 6 The second would be construction of the rules 7 themselves. And the third -- and the reason I say this and 8 start with it is with respect to such things as Rule 403 cause 9 or relevance cause generally, we don't regard appellate 10 decisions as particularly helpful because the review standard 11 is abuse of discretion. And so even if the Court of Appeals 12 had said that a particular judge ruling on a particular thing 13 wasn't reversible, we might still be arguing because your 14 Honor's discretion might be differently exercised depending on 15 the facts. 16 Let me begin by talking about what the government's 17 case looks like so far as we now see it so that the 403 18 questions can be evaluated, because in our respectful 19 submission almost every one of these issues cannot now be 20 decided. A 403 decision is inherently one that rests upon such 21 things as confusion of the issues, danger of unfair prejudice, 22 cumulative nature of the evidence, and similar things. 23 Right now the government has charged five inchoate 24 crimes, three conspiracies, and solicitation and assistance of 25 the conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 495 45LSSAT8 1 THE COURT: But if I follow that principle, then my 2 conclusion is let 1000 flowers bloom and the government can go 3 forward, they say these are their proffers, this is what the 4 evidence at trial will show and if in the course of the trial I 5 eventually make a Rule 403 determination that specific evidence 6 should not be introduced, so be it. That is what the 7 government says and you tell me now, gee, you can't make all of 8 these 403 determinations now. 9 MR. TIGAR: I follow the court except so far as "so be 10 it." The government knows the lethally prejudicial character 11 of this evidence. And if in an exercise of reckless desire to 12 influence the jury they promise in the opening statement 13 something that they later on don't deliver, they run the 14 serious risk of mistrial. We have all in this courtroom been 15 trying cases a long time and speaking for myself, I have never 16 been stopped in an opening statement because I think that I 17 have had a federal judge send a clerk around to say something 18 unkind about it after I finished but that was different. I 19 think we all know what we are supposed to do and your Honor has 20 talked about brevity. But if your Honor's concern is about a, 21 then let me talk about some of these issues. 22 Let's talk first then about Luxor -- 23 THE COURT: By the way, I didn't mean to interrupt you 24 or the flow of your argument. 25 MR. TIGAR: No, your Honor, I accept what I regard as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 496 45LSSAT8 1 the court's invitation because what we have here is, we are 2 going to have Mr. Fitzgerald get on the stand and say I wrote 3 this letter. I drafted this SAM. I sent this. And 4 Mr. Fitzgerald will tell us what he believed at the time at 5 least to some extent, although what he believed is not 6 admissible to prove the fact remembered or believed. The court 7 knows what some of that correspondence is. It has been in 8 evidence on the pretrial motions. And that correspondence 9 reflects and talks about these events. In addition to that -- 10 THE COURT: But you also tell me that that is not 11 admissible for what really happened and to the extent that 12 Luxor is a relevant and significant event in terms of what the 13 allegations in this case are with respect, for example, to the 14 cease fire and how it affects Luxor and the like and whether 15 it's a return to Luxor and the like, that argues then for with 16 respect to Luxor precisely because Mr. Fitzgerald can't testify 17 about actually what happened at Luxor for some evidence with 18 respect to what actually happened at Luxor. 19 MR. TIGAR: Then let me address it. If that is the 20 court's concern, let me respond to it. 21 THE COURT: Help me, isn't that right? 22 MR. TIGAR: No. 23 THE COURT: Okay. 24 MR. TIGAR: Because I hardly think the defendants in 25 conversation to be played to the jury talk about Luxor and, of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 497 45LSSAT8 1 course, under 801(d)(2)(e), those conversations if admitted as 2 during and in furtherance of the conspiracy are admitted for 3 the truth of the matters asserted without regard to personal 4 knowledge because rule 062 does not apply to 801(d) nonhearsay. 5 But more than that, your Honor, what is the asserted connection 6 of Luxor to the events? 7 One, Mr. Taha is said to have said I haven't done XYZ 8 since, there are some phone calls. Counsel for Mr. Sattar can 9 address those, but they hardly establish a connection. Then it 10 is said that Mr. Sattar had on his computer a book by Mr. Taha 11 in which Mr. Taha discussed Luxor. I will tell the court that 12 I have looked for that computer file, for that book. It is 13 taken from a diskette that is said to have been in Mr. Sattar's 14 house. The FBI then took it and put it on a CD ROM. That 15 little file to which the government directs us doesn't contain 16 any indication of authorship or date on which the thing was 17 said and, in fact, your Honor, the CD ROM that the government 18 gave us that contains these files we now have evidence based on 19 our analysis was subjected to manipulation by the FBI using a 20 program that is still on the CD ROM and reflected in the log 21 file. I will provide more details about that but there is an 22 admissibility hurdle there if the court is going to go to it. 23 Now, the other allegation about Luxor is that this was 24 done in the name of the sheikh. What is the evidence for that? 25 The evidence is that a leaflet was passed out at the scene. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 498 45LSSAT8 1 This is the leaflet that tourist T handed to translator T1 who 2 handed it to witness W1. Apparently the witness somehow got a 3 leaflet. The government proposes, without any evidence that 4 has been proffered as to the authorship of the leaflet or any 5 explanation of the fact that it appears to contain different 6 kinds of printing, not only to offer the leaflet as the 7 connection that joins us up to Luxor, but to have the hotel 8 manager say that is blood on there. 9 The gap, the admissibility gaps in that chain, even 10 without with respect to the hearsay questions that we briefed, 11 are simply things that the government cannot jump over. 12 THE COURT: But that doesn't answer at all the other 13 witness whose the eyewitness and that is not addressed in the 14 papers. The government proffers two witnesses. 15 MR. TIGAR: I understand that, your Honor. 16 THE COURT: And perhaps in an excess of caution if I 17 thought that evidence with respect to Luxor was admissible at 18 this point or at least that I wouldn't preclude it, there 19 shouldn't be references to the second witness and the evidence 20 should be proffered only in the terms that there would be 21 evidence with respect to what happened at Luxor because there 22 is no admissibility problem with respect to the second witness, 23 eyewitness. 24 MR. TIGAR: Not so, your Honor, relevancy. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 499 45LSSAT8 1 MR. TIGAR: I mean, your Honor, I can find people all 2 over New York who were present at disturbing events but the 3 question is what is the connection of the event to Sheikh Abdel 4 Rahman and the effort to free him? 5 THE COURT: Let me go -- before you continue on that, 6 let me ask you another question just on the hearsay issues, 7 which is the government says that under Koskerides, and they 8 say other Second Circuit cases, Koskerides, that the fact that 9 there was a translator doesn't raise a hearsay problem because 10 the Second Circuit said the translator just acts as a conduit. 11 So long as there is sufficient evidence that the translator is 12 just acting as a conduit. 13 As to just that little piece of evidence or 14 evidentiary argument in the papers I don't see a response. 15 MR. TIGAR: I didn't respond, your Honor. I think 16 that under the literal terms of the rule -- and I don't think 17 the case law is very helpful here -- that what a translator 18 says, he is saying this now, he is saying that now is classic 19 hearsay. But it doesn't really matter. 20 THE COURT: But my limited question is the Court of 21 Appeals has apparently said in Koskerides that the translator 22 acts as a conduit and is not a hearsay problem. I realize that 23 there may be a hearsay problem with respect to is this an 24 excited utterance, is it still under the stress sufficiently 25 close in time and the like, but just the piece with respect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 500 45LSSAT8 1 the translators. 2 MR. TIGAR: Understood, your Honor. Without regard to 3 the hearsay question, because I don't know of a contrary case, 4 I say that right now. Now, then the question is can this man 5 translate? And how do we establish his qualification to 6 translate the details of what was heard? 7 Now, the problem of course is that the proffered 8 witness W1 has to have personal knowledge under 602. He must 9 have personal knowledge of every fact he recites and that is 10 not an 800 series hearsay problem. If he is utterly innocent 11 of the language of Voltaire how can he have personal knowledge 12 that the conduit is open and functioning adequately? Now, he 13 may. He may have some knowledge that is admissible that 14 establishes that the conduit is transmitting accurately. But 15 as of now it hasn't been proffered. And of course it becomes 16 important because without the witness, without the victim to 17 translator to manager, then we miss the connection. And even 18 if we take the government's point, how is the jury going to 19 know? What does it add to the jury's understanding of 20 potential danger to put in evidence the horrific details of 21 this event only thereafter to explain to the jurors that after 22 all none of these defendants had anything to do with it? 23 That, your Honor, is ultimately the 403 determination. 24 Now, with respect to the USS COLE incident, I want to 25 turn to that very briefly. Even the government admits that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 501 45LSSAT8 1 connection is attenuated but I want to point one thing out. 2 Ms. Stewart is not charged with having discussed the Cole with 3 Sheikh Abdel Rahman. She wasn't on that call. That was 4 another lawyer. So to the extent that is the argument it 5 doesn't work. But all of these matters, the fact that people 6 are out there doing dangerous things or bad things in the name 7 of or to avenge someone that Ms. Stewart represents poses a 8 particular 403 kind of a problem, and the problem is this: If 9 I am representing someone and people are out there doing things 10 in my client's name, I might well decide that I have an 11 obligation to tell my client, gee, people are out there doing 12 things in your name. What are we going to do about that? 13 And the difficulty in this case is going to be, your 14 Honor, to point out, to argue, to establish a defense, because 15 the government says Ms. Stewart went to the jail. She went to 16 the jail to participate in a conspiracy to kill people and 17 kidnap them. She got on the telephone with her client to 18 participate in a conspiracy to kill and kidnap people. 19 THE COURT: She is not alleged to be a conspirator I 20 believe in that conspiracy. She is alleged to have provided 21 material assistance to that. 22 MR. TIGAR: She went to the jail to provide material 23 assistance to the conspiracy to kill or kidnap, I take your 24 Honor's point, thank you, your Honor, because I am going to 25 return to that in a moment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 502 45LSSAT8 1 Our point is going to be this: No, she went there 2 because she had a job to do a that is protected by the law. 3 She did it. She did it in accordance with her best judgment 4 about what the legal ethics under which she operates require 5 and permit. She was enforcing the constitutional rights 6 protected by her client because this is what lawyers do. 7 Now, in making that determination, which is the guts 8 of the case, this evidence about these details is at the very 9 best peripheral. It lies at the edge. It lies at a point 10 where the jurors are likely in the present political climate to 11 overvalue it. 12 After all, your Honor, it is not alleged that any of 13 these things, which I am going to get to, are done during and 14 in furtherance of the conspiracy. And so far as one of them is 15 concerned, the conspiracy that it is alleged they were a part 16 of, and this is the Osama Bin Laden, there it is the 956 17 conspiracy of which Ms. Stewart is not a member. So now it's 18 proposed she be tried in a case in which this very explosive, 19 prejudicial evidence comes in with respect to a count in which 20 she isn't even named. That, your Honor, is the guts of our 21 argument about this beyond what is raised in the brief. That 22 is to say, the government has plenty of opportunity to inform 23 the jurors about it and plenty of opportunity to put out the 24 government's concerns without raising these questions. 25 Now I would like to turn, if I may, to this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 503 45LSSAT8 1 introduction of evidence about the sheikh's trial, because I 2 think it's related to that. 3 The fact that an item of evidence was introduced in 4 the sheikh's trial, in the Sheikh Abdel Rahman trial, is 5 irrelevant to the piece of evidence or any piece of evidence 6 that the government seeks to introduce. The government says, 7 well, we have to prove why the SAMs were issued and we have to 8 prove that Ms. Stewart knew her client was a bad guy. The fact 9 that a particular piece of evidence was received over objection 10 or not by Judge Mukasey is irrelevant to any of those contested 11 matters. And it indeed suggests something to the jury that is 12 quite improper. 13 Mr. Fitzgerald will get on the stand and testify that 14 he thought he had a good reason to send Ms. Stewart the letters 15 he sent and to draft the things he drafted. Footnote: The 16 government seeks to preclude us from saying anything about the 17 government's prosecution being in bad faith, I intend to cross 18 examine Mr. Fitzgerald on his bias and prejudice and a part of 19 his bias and prejudice is that he was not candid with Ms. 20 Stewart. That is not to say that the jury should do anything 21 because the prosecution is in bad faith. There may be 22 objections to my questions, I don't think so. I don't intend 23 to ask any objectionable questions but a wholesale preclusion 24 of any mention of the motivation of prosecutors in this case it 25 seems to us is premature at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 504 45LSSAT8 1 The same thing could be said about the First Amendment 2 issue about which the court has already commented. That is to 3 say, Ms. Stewart is clearly entitled to put on a defense as to 4 what she thought she was doing. We take the point about Cheek 5 against United States. The Cheek case says that Ms. Stewart's 6 belief with respect to constitutionality of statutes is not 7 relevant to any element of the offense. That is not 8 dispositive of the evidentiary issue. 9 Turning then to the question of the judgment in the 10 criminal case against Sheikh Abdel Rahman, the government wants 11 to put in evidence something that says that he was convicted of 12 certain offenses -- offenses, by the way, which related to a 13 conspiracy to commit violence in the United States and not in a 14 foreign country. We have opposed that evidence on the ground 15 that that judgment in that prior case is not relevant to any 16 element of any phones of which we stand charged. The Bureau of 17 Prisons would be entitled to impose restrictions on any 18 prisoner as to whom it made a determination about danger 19 irrespective of the conviction. I have no doubt that one way 20 or another the fact that Sheikh Abdel Rahman was convicted of 21 something is going to sneak out in the course of this case. 22 The government's statement in its papers that it intends to put 23 in such things as the Second Circuit opinion of the jury's 24 verdict, however, goes well beyond. Not only does it seem to 25 be precluded by Rule 404(b), but contrary to the government's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 505 45LSSAT8 1 assertion not only are we not required to accept that verdict, 2 Ms. Stewart was duty bound as a lawyer not to accept it. 3 THE COURT: What do you propose? In your papers you 4 said the court should take judicial notice. You suggest some 5 form of stipulation which might be a first. You say that the 6 fact of a conviction will come out. The fact of a conviction 7 is plain from the other evidence because of Sheikh Rahman has 8 been in jail for an exceedingly long period and the SAMs, I 9 think, relate -- and I don't have before me the text of the 10 SAMs but they may well also refer to a conviction and my 11 question is what do you propose? And I wasn't sure from your 12 papers what you were asking me to do in that connection or what 13 you proposed in that regard. 14 MR. TIGAR: First, your Honor, our offer to stipulate 15 was that if the court finds the fact of conviction admissible 16 we will stipulate to the fact that it happened. 17 THE COURT: What does that mean? 18 MR. TIGAR: Well, if your Honor rules it's relevant. 19 THE COURT: But convicted of what? 20 MR. TIGAR: First, may I first attack the court's 21 premise. There are plenty of people in American custody under 22 very onerous conditions who have not been convicted of 23 anything. That is just the world in which we live. So the 24 fact that he has been in jail a very, very long time under 25 conditions that are regarded as onerous doesn't have anything, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 506 45LSSAT8 1 most respectfully, to do one way or another. As I say, that is 2 the world we live in. Now, therefore, the question of these 3 SAMs is going to turn, and we will get to it eventually, on how 4 we interpret your Honor's order denying our motion to dismiss 5 under the Dennis case. 6 THE COURT: It's really quite straightforward. Of 7 course I am not reading from my prior opinion and I don't 8 decide anything until it's briefed on the fact and the law but 9 there are the SAMs. They were in effect and they were required 10 to be complied with. And, frankly, the arguments on both sides 11 on this issue seem to me to go a little beside the point, both 12 the government and the defense when they talk about what the 13 "motives" for the SAMs are. There they are. And the 14 indictment alleges that they were there. They were required to 15 be complied with and the government alleges that they were not 16 and that affirmations were submitted that were false. And the 17 motions, as best I can recall, under Dennis went to the issues 18 of whether the constitutionality of the SAMs or the validity of 19 the SAMs could be challenged, and the answer to that under 20 Dennis was no. That is it. And so of course it is a question 21 why both sides now want to go into the "motives" for the SAMs. 22 There they are. That is what they say. And one would think 23 that they were required to be complied with. And so I am not 24 sure what you were asking me -- 25 MR. TIGAR: Your Honor, I am not trying to play word SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 507 45LSSAT8 1 games with the court. If that is the court's ruling, there 2 were the SAMs and they are required to be complied with, then 3 that takes care of Luxor, Cole -- 4 THE COURT: No, no, because the argument that the 5 government made with respect to the "motives for the SAMs" was 6 one argument of several as to what the relevance of that 7 evidence was and there is an argument which I have to consider 8 which is the issue with respect to the materiality of the 9 conduct which is a separate issue from why do we have the SAMs. 10 And I have to consider that argument. 11 But, in any event, I explored with the government 12 where the various pieces of evidence fit in in the case and it 13 was only a slight argument, if in fact the argument was made to 14 me earlier today, that it was the "motives for the SAMs" that 15 this evidence was going to go in. 16 MR. TIGAR: The court now says no, however, let's see 17 how far we are then. The evidence cannot come in as showing a 18 motive for the SAMs, I believe, I respectfully submit. The 19 court has established that by saying the SAMs were there and 20 had to be complied with. Now we can look at alternative 21 potential bases. 22 THE COURT: Hold on one moment. Please, no one 23 should -- no one should take my comments in the course of an 24 argument as my final decision on anything and, you know, 25 sometimes that happens. I hear my statements in the course of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 508 45LSSAT8 1 an argument which I really try to find out what the arguments 2 are that the parties are making and then I hear it quoted back 3 to me as law of the case. As I tell people sometimes, when I 4 make rulings you will know. I really try to find out in the 5 course of the argument where things stand and I try to give my 6 thinking to the parties to have you help me on these various 7 issues. And I have expressed some thoughts with respect to the 8 motives for the SAMs. I will consider that and I will listen 9 to the government in response also. I am glad that you raised 10 the issue. 11 MR. TIGAR: May I take it then that I will pass on to 12 something else because we have said the SAMs speak for 13 themselves. The court may or may not agree but that is what we 14 say. 15 If the SAMs speak for themselves, then the question is 16 what remains to show that something happened in the conspiracy 17 not with respect to the majority of these things? To show that 18 Sheikh Abdel Rahman was a bad guy, criminal propensity evidence 19 as to someone not on trial? The danger of this evidence 20 insofar as it involves people like Taha and Sheikh Abdel Rahman 21 is that evidence that is arguably criminal propensity evidence, 22 the kind of things that would lead to 404 inquiries that is 23 introduced as to nondefendants, raises particular problems of 24 unfairness because none of these people as to whom these things 25 are being said is available to us to cross examine. We don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 509 45LSSAT8 1 have the resources to rebut statements about what these folks 2 said or did. And that, of course, is true irrespective of that 3 consideration as to every single one of these things. The Cole 4 was investigated by the United States. No doubt those 5 investigations are classified. We have not seen any results of 6 them. A purported connection between the Cole and us, or any 7 of these defendants, is therefore precisely something that we 8 don't have the resources or means to investigate. If the 9 relevance is that sometime Mr. Sattar and Mr. Taha said, well, 10 it could be the Cole all over again -- to explain a statement 11 like that why does the government need four witnesses including 12 a medic who saw the broken bodies? 13 If someone that I were representing said it will be 14 another Oklahoma City, does that mean we retry 4 months of the 15 Oklahoma City trial or even four witnesses from the Oklahoma 16 City trial? That, your Honor, is the 403 question and while I 17 understand that everybody wants to get ready for opening 18 statements, the government having, without too much distinction 19 as to who might testify and what they might say, put all of 20 these things in here is making their contention, their motion, 21 at just the wrong time. 22 I would hope that the court could give us some 23 guidance about this and that is why I don't apologize for 24 starting by noting that Mr. Fitzgerald is going to say 25 something about it. You know, it might not even be relevant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 510 45LSSAT8 1 what really happened in Luxor. It might not even be relevant 2 what really happened in the Cole. If the parties talked about 3 it, the important thing is what they thought happened and how 4 their perception of it influenced their action. That is a 5 question that I can't answer until we have heard all the 6 evidence. 7 THE COURT: Yes, but aren't there some preliminary 8 distinctions, as you put it, for the benefit of the parties 9 that can be made? And aren't they on a continuum about how 10 important individual events are to the charges in the 11 indictment and also the degree to which independent evidence is 12 relevant to the charges in the indictment? And I already said 13 that, as you said, not all of these determinations can be made 14 at this point. 15 MR. TIGAR: Some can. All right. I am sorry, I feel 16 caught by your Honor's statement that you don't want to give 17 guidance in a general way because it's not a ruling and we 18 might quote it back. And I take that. But let's see what we 19 can rule on. 20 Number one, the Luxor incident evidence is simply 21 incompetent. That is to say the multiple hearsay and the utter 22 lack of authentication evidence proffered by the government 23 shows that the connection simply has not been shown to exist. 24 That evidence doesn't go. That would be one holding that the 25 court might make. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 511 45LSSAT8 1 With respect to the Cole, the remoteness. With 2 respect to Abu Sayyaf, that, your Honor, in order to be 3 admissible if the government's contention is that Ms. Stewart 4 said something, then that would be a Rule 104 determination as 5 to which the government would proffer the tape or the recording 6 to the court, the court could listen to it and we could make 7 appropriate objections. 8 Or, the court could say, look, the fact that someone 9 did something in Sheikh Abdel Rahman's name and that his lawyer 10 discussed it with him simply is not relevant in the sense that 11 it makes any disputed proposition more likely than it would 12 otherwise be and there is such a serious risk of unfair 13 prejudice that right away we can tell. 14 With respect to Osama Bin Laden, your Honor, this is 15 one of these cases in which, and I know counsel and Mr. Sattar 16 may want to discuss it, but since it's said to go only to the 17 956 conspiracy the court is going to have to consider the 18 federal rule of criminal procedure 14 implications of this 19 highly incendiary evidence coming in with respect only to one 20 count. 21 THE COURT: Well, I have ruled on that many, many 22 times in view of the allegations in the indictment and each of 23 the times that it has been repeated. 24 MR. TIGAR: If your Honor please, there are three 25 federal cases, each of which says that a federal judge has the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 512 45LSSAT8 1 continuing duty to look at Rule 14 and in each of which 2 convictions were reversed because it didn't happen. That is 3 not very many. One was Mardian; one was Posner, and one was -- 4 it was Roy Kelly was the defendant. I think it was Van Allen 5 is the name of the case. So I respectfully submit that there 6 is an ongoing obligation here and with a new issue it poses it 7 for the court. 8 THE COURT: The parties are always free to make any 9 motion to me. 10 MR. TIGAR: Those are the contentions we wanted to 11 make that go beyond the brief. I don't think it's necessary 12 for us to go over the things that we raised in our papers or to 13 repeat them. If the court has any questions I would try to 14 answer them. 15 THE COURT: No. 16 Let me hear -- Mr. Ruhnke. 17 MR. RUHNKE: Yes, your Honor. 18 Your Honor, just by way of trying to set this case in 19 context from the perspective of Mr. Yousry, Mr. Yousry was not 20 a signatory to the SAMs. The SAMs themselves rely upon the 21 signatory to the SAMs to instruct those who are interpreters of 22 the people on what their behavior is to be. Mr. Yousry took 23 his direction from many attorneys, not just Ms. Stewart. Mr. 24 Jabara, Mr. Schilling, Ramsey Clark. There is a reference in 25 the Abu Sayyaf tape to the fact that Mr. Jabara had originally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 513 45LSSAT8 1 raised this issue and informed Sheikh Abdel Rahman about the 2 event. 3 Mr. Yousry was the translator as conduit. He didn't 4 determine what was done with information that he translated or 5 who told whom about it. He simply served as a legalistic 6 interface between Sheikh Rahman and various members of his 7 legal team. 8 In terms of the particular issues which we have 9 discussed, I don't think Mr. Tigar's point should be lost in 10 the shuffle because it occurred to me as well as this argument 11 was proceeding that really what occurred at Luxor or what Abu 12 Sayyaf in Mindanao was really all about, or what the Cole was 13 really all about is not the issue. The issue, as the 14 government frames it, is what these defendants knew and how 15 that knowledge should have informed their subsequent actions. 16 Luxor, as your Honor knows, and as the government concedes, 17 occurred before any conspiracy that is charged in this 18 indictment. It's not part of a conspiracy, clearly not an 19 overt act in furtherance of a conspiracy. No evidence that 20 Sheikh Rahman directed or wished Luxor to take place. 21 And doing the 403 analysis, one thing your Honor 22 should consider is what is the likelihood that a jury 23 instructed on Luxor and told to confine their consideration of 24 Luxor to "background and context" is going to be able to form 25 that kind of segregated function for the limiting purposes that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 514 45LSSAT8 1 the government says it belongs to, background and context? 2 In terms particularly of the Abu Sayyaf incident, what 3 is relevant here is what the parties knew about it and what the 4 parties discussed. And your Honor made the point right at the 5 beginning that it's most helpful to know what the proofs are in 6 this case rather than some abstract. Every time I read in the 7 government paper a simple hypothetical will illustrate this I 8 am amazed at what follows it because I am never able to follow 9 the hypothetical. 10 THE COURT: I am not enamored of hypotheticals. I am 11 not. 12 MR. RUHNKE: I will not use a hypothetical. The 13 entire discussion of Abu Sayyaf comes up as follows: There is 14 a prison visit of May 19, 2000. Mr. Yousry, as interpreter -- 15 THE COURT: Can I ask you a question before you go 16 through that? 17 MR. RUHNKE: Yes. 18 THE COURT: Are you really contending that the 19 government would not be or should not be permitted to refer in 20 openings to what they say the defendants in this case or other 21 co-conspirators -- that the evidence will show that the 22 defendants in this case or other co-conspirators said about Abu 23 Sayyaf? 24 MR. RUHNKE: Yes, because it's so -- 25 THE COURT: Rather than independent evidence of what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 515 45LSSAT8 1 really happened at Abu Sayyaf? 2 MR. RUHNKE: There obviously are different levels. I 3 would be happier without the independent evidence. I would be 4 most happy with no evidence of Abu Sayyaf because it's 5 basically a blip in this case that carries with it the danger 6 for immense unfair prejudice. What happens regarding the Abu 7 Sayyaf incident is during the prison visit of May 19, 2000, Mr. 8 Yousry was asked to read a newspaper article to Sheikh Rahman 9 about the incident. Sheikh Rahman responds that he knows about 10 the incident because Mr. Jabara had already told him. The 11 exchange is Yousry says, "How did you find about that, sir?" 12 And the Sheikh replies "Abdeen told me." And then the 13 government quotes Ms. Stewart as stating "good for them," and 14 then later on in learning that the hostages are still being 15 held says "that is very sad." And that is the entire 16 discussion of Abu Sayyaf in the grand scheme of this case. We 17 may have a disagreement about the interpretation but that is 18 for another day. 19 The USS COLE is even more attenuated. What happens, 20 again, in the context of this case -- first of all, the bombing 21 of the USS COLE took place on October 12, 2000. Eight months 22 later, in July of 2001, Mr. Yousry asks Ms. Stewart for 23 permission pursuant to a previous discussion, an agenda-setting 24 discussion, whether she should now tell the Sheikh about the 25 Cole and Ms. Stewart gives Mr. Yousry during this visit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 516 45LSSAT8 1 permission to do so. And Mr. Yousry advises Sheikh Rahman that 2 Mr. Sattar had received a call from "some people" and that they 3 told him that they are the ones responsible and they did it 4 because of you, referring to Sheikh Rahman. And these people 5 wanted Mr. Sattar to open negotiations with the United States 6 government on the release of the Sheikh. The Sheikh replies 7 "Sattar shouldn't have anything to do with this at all. They 8 are going to wind up blaming him for the Cole." And then the 9 Sheikh says, anyhow, we should -- if anything is going to be 10 done it be done through the lawyers, and it ends with the 11 Sheikh saying, "anyhow it's probably the FBI who made the call 12 in the first place trying to entrap Mr. Sattar." And that is 13 it in the entire scheme of things on the bombing of the USS 14 COLE. 15 For the government to take that side conversation, 16 which isn't even taken seriously by the participants, as the 17 springboard for bringing before a jury in a time that we are at 18 war about an attack on the United States war ship, if there is 19 anything that Rule 403 would come into play is that. The Cole 20 is such a side issue and carries with it so much emotion and 21 unfair prejudice. 22 The Osama Bin Laden fatwah, kill Americans wherever 23 they can be found, we have been telling jurors right along this 24 case is not about 9/11. This case has nothing to do with 9/11. 25 Now the government proposes, having listened to your Honor tell SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 517 45LSSAT8 1 jurors that to draw a connection between Osama Bin Laden, Dr. 2 Al-Zawahiri, other members of Al Qaeda to bring the 9/11 plot 3 right here. And that is unfairly prejudicial to bring the Bin 4 Laden connection without pretending it carries with it -- and I 5 don't mean pretending -- without recognizing that the name Bin 6 Laden is inseparable, especially in this city, from 9/11 is not 7 accurate. 8 THE COURT: But, first, that was in 2000. That event 9 has no alleged relationship to 9/11 and is alleged to be an 10 overt act in furtherance of the conspiracy. So what on that 11 act you would be asking me to do is to say an alleged overt act 12 in furtherance of the conspiracy should be excluded on the 13 basis of 403. 14 MR. RUHNKE: That is right. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 518 45LSSAT8 1 MR. RUHNKE: Yes. 2 THE COURT: Plainly, I have to assess you know the 3 relevance and the, whether it's unfairly prejudicial and 4 determine whether the probative value is outweighed by the -- 5 MR. RUHNKE: Some of the more prejudicial evidence the 6 government wants to offer is to prove membership in the 7 conspiracy of unindicted coconspirators, people who are not 8 indicted, people who are not showing up in this courtroom, who 9 are not on trial in this courtroom, people like Taha. And I 10 think your Honor needs to factor that in as well. 11 In the event -- this is not direct proof in a sense of 12 these are things that the people on trial did, directed, 13 instigated, or had any role whatsoever in. 14 THE COURT: Unindicted coconspirator, and his 15 activities in terms of the actions alleged in the indictment is 16 fairly important. 17 MR. RUHNKE: It's much more important to the Count 2 18 and Count 1 conspiracies. Certainly not as important to the 19 conspiracies, Mr. Yousry is indicated. The issue is, How much 20 evidence does the government have? And how prejudicial is the 21 linking of this case with Osama Bin Laden? The fact it's in 22 2000, and 9/11 hasn't yet occurred? 23 I don't know what the people sitting in that box are 24 going to make of that, or make anything of it at all except 25 these people are linked to Bin Laden. And I think that would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 519 45LSSAT8 1 be a most unfortunate linkage for this jury to make, that 2 somehow all of this has to do with Bin Laden rather than an 3 absent coconspirator, not acting with direction or leadership, 4 who wants the sheikh free, enlists Bin Laden and associated 5 with Bin Laden, the sheikh's sons, the same event. 6 The fact that it's named as an overt act in the 7 conspiracy plainly and obviously is not cut out 403 argument. 8 Lots of things as overt acts in conspiracy that still carry 9 with it danger of unfair prejudice. And the idea of Bin Laden, 10 the Bin Laden connection in New York City, hearing from 11 Jerusalem is toxic and unfairly toxic -- I don't want to say 12 especially to Mr. Yousry, but that's true, especially to 13 Mr. Yousry. 14 And that's all I'm going to add to this argument, 15 unless your Honor has specific questions for me. 16 THE COURT: No, thank you, Counsel. 17 MR. FALLICK: Your Honor, Ms. LaFache will address the 18 government's arguments in the first in limine motion, and I'll 19 be addressing the government's second motion. 20 THE COURT: All right. 21 MS. LaFACHE: Your Honor, we adopt the arguments made 22 by Mr. Tigar and Mr. Ruhnke and we would like to add to those 23 arguments briefly, although we do feel that both Mr. Tigar and 24 Mr. Ruhnke touched on this issue, I would like to specifically 25 address, it is our position that the Court should preclude the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 520 45LSSAT8 1 government from presenting the witnesses as they relate to 2 Luxor and to the bombing of the United States Navy vessel the 3 U.S.S. Cole. Simply, your Honor, these -- this independent 4 evidence does not add to anything, any issue in this case. The 5 given reasons for why the testimony is necessary -- we fail to 6 see where the government's going with this. Reference to 7 either one of these horrific events do not go to any of the 8 defendants' states of mind; they do not go to what the 9 defendants knew; nor do they go to when the defendants knew the 10 facts or the events, as described in the summaries offered by 11 the government. 12 And finally, they cannot provide any context beyond 13 what is embodied in the recorded conversations. 14 Do you have any questions? If not, we rest on our 15 brief. 16 THE COURT: Thank you. 17 MR. FALLICK: The government's argument concerning the 18 political, economic and social conditions in Egypt, not as it 19 relates to -- but more to any -- and any issue of testimony, 20 but what is permissible -- you know, Mr. Paul and I listened 21 very carefully today to what your Honor's opinion was. 22 THE COURT: Tentative views. 23 MR. FALLICK: Yes. The situation in Egypt is 24 intertwined, and the government's allegations in the 25 indictment, and some of its proof, and certainly in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 521 45LSSAT8 1 Mr. Sattar's relationship with Sheikh Rahman. The government 2 has offered today conversations between various defendants to 3 demonstrate that certain evidence would be admissible. But we 4 have prepared, from the government's discovery material, a 5 complete notebook about discussions about the conditions in 6 Egypt between Mr. Sattar and others. 7 Clearly here, in this case, the issue for Mr. Sattar 8 is: What he intended by his actions and statements. What his 9 state of mind was. Some description of the economic, social 10 and political condition in Egypt is certainly necessary to 11 provide meaning to his statements and actions. And it was 12 certainly our intent in our opening statement to discuss the 13 evidence as the government gave it to us in the conversations 14 about Egypt, social and economic and political conditions, to 15 provide some meaning to what Mr. Sattar did and said. 16 The government has argued today that certain evidence 17 is necessary, or they like certain evidence to explain 18 Mr. Taha's state of mind and his intent. Likewise, to explain 19 Mr. Sattar's statements and actions, we believe it is necessary 20 to discuss the economic, social and political conditions in 21 Egypt as they apply to Mr. Sattar's statements and actions. 22 THE COURT: You know, there are -- the reason that it 23 is difficult to comment or rule on the government's motion with 24 respect to political conditions in Egypt is exactly the reason 25 that Mr. Stern said the other day and that you've touched on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 522 45LSSAT8 1 I mean, it is possible that the discussions on the tapes, for 2 example, may not reflect the conspiracies charged or that they 3 may not reflect the state of mind to engage in a conspiracy to 4 kill or kidnap. The parties run the risk that if they attempt 5 to, you know, present that these conversations mean something 6 other than they are, they run the risk that the jury's going to 7 say, Well, no, that's what they are. And they run the risk 8 that eventually there will be a -- an instruction to the jury 9 that, you know, if -- with respect to how they consider state 10 of mind, with respect to the individual charges, and it would 11 be the fact that a person knowingly engages in a conspiracy to 12 kill or kidnap because they are concerned over the state of 13 conditions in Egypt would, I would think, not be a defense. 14 On the other hand, if what the argument is that tapes 15 do not reflect a conspiracy to kill or kidnap, but rather 16 reflect simply a discussion of political conditions in Egypt, 17 that is a different argument, and it's why -- and where does 18 the cease fire fit into that argument? That is why a blanket 19 instruction like the government has asked me to give would be 20 very difficult. 21 On the other hand, you know, certain prudential 22 cautions at the outset are useful to what the limits of what 23 the arguments would be that the evidence in the case will show. 24 MR. FALLICK: We are certainly aware of the risks that 25 we take in our opening statement, and that we have to live and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 523 45LSSAT8 1 die by what we say. But we didn't want -- the Court is not 2 precluding us from placing into context Mr. Sattar's statements 3 and actions as they pertain to the economic, social and 4 political conditions in Egypt. 5 THE COURT: To the extent that they relate to a -- the 6 kinds of viable defenses that could be raised. For example, 7 what was the state of mind? Was it the state of mind that 8 supports the charges or was it not that state of mind? Was it 9 the state of mind too conspire to kill or kidnap, or was that 10 not what the tapes are really showing and I don't -- I'm not 11 suggesting what the arguments will be. I'm saying that the 12 parties should be aware of the reasonable limits on what they 13 can do from a variety of factors, both whether the evidence 14 will ever support it and whether there's a viable objection. 15 If, for example, the argument were ever made that, you know, 16 you can engage in a conspiracy to kill or kidnap because you 17 disagreed with the political conditions in Egypt, which I take 18 it would not be the argument. 19 MR. FALLICK: That will not be the argument, your 20 Honor... as far as I know. 21 Mr. Paul is giving the opening. 22 Your Honor, we don't expect to open and having general 23 discussion about the economic political and social conditions 24 in Egypt, but we do expect to discuss those conditions as they 25 reflect on Mr. Sattar's statements and actions and what the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 524 45LSSAT8 1 evidence will show. 2 MR. TIGAR: Your Honor, before Mr. Barkow responds, 3 may I say two sentences in response to Mr. Ruhnke? So that all 4 the defense position is in. 5 THE COURT: Is this in rebuttal? Is it in rebuttal to 6 Mr. Ruhnke? 7 MR. TIGAR: It is in -- 8 THE COURT: You can take your time. Go ahead. 9 MR. TIGAR: The admissibility of the Taha-Bin Laden 10 meeting is not simply a 403 issue. It would require a 104(b) 11 preliminary factual determination under Bourjaily which, in our 12 respectful view, would also concentrate on which if any of the 13 charged conspiracies that overt act is allegedly in furtherance 14 of and whether the government has proffered evidence sufficient 15 to support admissibility as a proponent. 16 THE COURT: Okay. 17 MR. BARKOW: I'd like to respond to some of the 18 responses made -- certainly not all -- and answer to some of 19 the questions for us at this point. 20 THE COURT: Let me begin with a question, before you 21 respond to the other arguments: The defendants argue that the 22 Rahman conviction should not be admitted, and you say in 23 various ways in your papers that Rahman was found guilty. Our 24 system says, That's proof, that's guilt. And then you say that 25 you're going to think about whether you are also going to offer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 525 45LSSAT8 1 some excerpts from the Second Circuit decision affirming the 2 conviction of Rahman. 3 Now, there are two levels to this. One is the fact of 4 conviction, for something. The second is for what Sheikh 5 Rahman was convicted. And as to at least the second, it's 6 really not an answer to say: That's the way our system works. 7 Because it allies the issues of collateral estoppel and 8 res judicata and additional party, and Ms. Stewart's argument 9 actually doesn't add anything to say that she was only a lawyer 10 there. The critical point is that either she or any of the 11 defendants was a party. And then you also face 803(22), right? 12 And the cases that you gave me, including your own, went to 13 convictions being offered against the defendant in another 14 case, and the one case which went beyond that was the 15 conviction of someone elsewhere it was just used for the fact 16 of a conviction, the case before Judge Kaplan, without what it 17 was a conviction for, but simply a conviction, which was a 18 predicate for a motive. Right? 19 MR. BARKOW: That is a correct description of that 20 case, yes. Yes. I mean, there's a lot of points that the 21 Court has made, and most of them are correct probably all of 22 them are correct -- but I'm not sure what the Court is asking 23 in terms of whether that's right. 24 I have some responses to what the Court has said. But 25 it's definitely right. The characterization of Judge Kaplan's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 526 45LSSAT8 1 opinion is definitely correct. And the cases that I cited to 2 the Court are cases that involved use against the defendant. 3 I'm just trying to think backwards. 4 And there are issues raised as to how and what we want 5 to prove about the fact that Sheikh Abdel Rahman was 6 convicted -- I was going to address those; and also, with 7 respect to the Second Circuit evidence, I was going to address 8 those. 9 THE COURT: Go ahead. 10 MR. BARKOW: With respect to the Second Circuit 11 affirmance of his conviction, I guess I should start with 12 Mr. Sattar had a copy of that opinion on his computer. And so 13 with respect to him, I think that it would be relevant to show 14 his knowledge of what the charges were and what some of the 15 evidence at trial was and just the content of that opinion. 16 The opinion itself would not be admissible for the 17 truth of the matter asserted; it would clearly be hearsay. And 18 what we're proposing with respect to the Second Circuit's 19 affirming the conviction, and the Supreme Court's denial of 20 certiorari, is just the fact that it happened is relevant to an 21 issue that appears it's going to be contested about what 22 Ms. Stewart was doing and what her relationship was with the 23 client. The conviction was affirmed, the cert was denied. In 24 the government's view, this case was over. And in Miss 25 Stewart's view, it was ongoing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 527 45LSSAT8 1 And I think that the fact of affirmance, without the 2 content of the opinion, I would view as relevant -- in addition 3 to the denial of certiorari -- relevant to show the case was 4 over. And I think the defense position is it wasn't over, and 5 there were other cases about prison conditions and so forth 6 that could be brought. 7 THE COURT: You know, sufficient unto the day, at this 8 point what the substance was of the conviction, the government 9 doesn't seek to offer? 10 MR. BARKOW: No, no -- yes, we do. I was only at this 11 point talking about the Second Circuit and it's denial of 12 certiorari. 13 With respect to the conviction, which was the next 14 topic I was going to get to, we propose to offer into evidence 15 the certified copy of conviction which states that he was 16 convicted and -- if I could just have a moment. 17 (Off the record) 18 MR. BARKOW: Which states the counts of conviction and 19 the sentence that he received -- typical information that's 20 contained in a certified copy of conviction. 21 THE COURT: What do you do with 803(22)? 22 MR. BARKOW: It was my view that 803(22) supports the 23 admissibility of that conviction. 24 THE COURT: Show me how. Maybe I'm missing something. 25 So show me how. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 528 45LSSAT8 1 MR. BARKOW: May I have a moment, your Honor? 2 (Off the record) 3 MR. BARKOW: Your Honor, I perhaps stand corrected 4 with respect to 803(22). I guess what that suggests to the 5 government is we may need to find a different way of proving 6 the fact. But we still believe that the fact of the conviction 7 is relevant and the fact that he was convicted of certain 8 crimes makes -- is relevant. It makes his situation different 9 than someone who was acquitted. 10 That the -- as to the state of mind, for example, of 11 Miss Stewart, dissemination of a directive to resume terrorist 12 operations is just different when it comes from someone who's 13 convicted than when it comes from someone who is acquitted. I 14 think that the jury would find it -- if we were to do this in a 15 case where the person who relayed the directive was acquitted, 16 it would not be persuasive at all to the jury. And it is 17 persuasive that the person was convicted. 18 THE COURT: Well -- 19 MR. BARKOW: It would be less persuasive -- 20 THE COURT: The fact that it would not be persuasive 21 if the person was acquitted, it doesn't necessarily follow that 22 just because the person was convicted, it follows -- it just 23 excludes one set, and the question then becomes, doesn't it -- 24 the purpose behind 803(22) and the advisory notes on 803(22) 25 are meant to deal precisely with the issues of collateral SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 529 45LSSAT8 1 estoppel and res judicata and what the effect is in another 2 case of a conviction. And it's the question of the degree to 3 which the defendants are bound by the findings in another case. 4 That's -- that is a -- 5 So the argument really has to distinguish between a 6 couple of different things: It has to distinguish between 7 the -- simply a fact of conviction which has resulted in a 8 person being in custody. That's one level of issues. Second 9 level of issues is, Convicted of what? And are the defendants 10 in any way to be charged with, responsible for, in any way, a 11 prior finding by a jury in another case about what Sheikh 12 Rahman was doing? And, you know, these are -- these are issues 13 that have to be carefully laid out. It's -- rhetoric is not 14 very helpful to me. Like the rhetoric in the brief that says, 15 That's the way our system operates. 16 MR. BARKOW: I'm not saying that the defendants would 17 be collaterally estopped or barred by res judicata from 18 saying -- from agreeing, I guess, with the jury's 19 pronouncement. And at a minimum, though, it seems that if 20 the -- we could offer into evidence evidence that Sheikh Abdel 21 Rahman was adjudicated as guilty, it was stated that he was 22 guilty, as evidence as to the state of mind of these 23 defendants. Maybe they disagreed with that conviction and 24 thought that he wasn't guilty and so we might not be able to 25 say it was a fact that he was guilty. But that's different SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 530 45LSSAT8 1 than saying -- and this is a distinction with a difference, I 2 think, in the law -- that a jury found him guilty. Whether 3 he's guilty as a kind of state of being would be the truth of 4 the matter asserted. But whether a jury stated that he was 5 guilty is a different matter. And the defendants could say 6 that the jury was wrong. 7 THE COURT: The question then would be, though, what 8 the relevance of the content of what the jury said was. In the 9 case that you have with Judge Kaplan, the fact of conviction 10 provided a motive. 11 MR. BARKOW: Correct. 12 THE COURT: In the case. And I raised with Mr. Tigar 13 before the issue of the, quote, motives for the SAMs, and I had 14 thought that it was the -- that the motives for the SAMs were 15 not very relevant. That the existence of the SAMs and the 16 requirement to follow the SAMs and the affirmations that were 17 admitted in connection with the SAMs are also very relevant. 18 But when the parties begin to go off on why was this done, why 19 was the -- why were the SAMs adopted in the first place, it's 20 not clear to me why that is either necessary to the 21 government's case or an avenue to be opened up in the 22 government's case. 23 And with respect to the arguments that you raised as 24 to, Gee, the defendants could say that Sheikh Rahman is 25 wrongfully there, well, before the defendants say that Sheikh SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 531 45LSSAT8 1 Rahman is wrongfully there, as a predicate to introducing that 2 he is rightfully there, shouldn't I await someone opening the 3 door? 4 We have a situation where there are two levels. First 5 of all, there's the evidence at the Sheikh Rahman trial which 6 may have relevance here, because here are statements by Sheikh 7 Rahman. People heard that evidence. It's not -- it doesn't 8 become privileged in some way because it was said in the course 9 of the trial. Here's evidence. And I assume that if you were 10 going to offer such evidence you'd have to establish its 11 authenticity, not simply that it was offered in another trial. 12 Right? 13 MR. BARKOW: Depending on the purpose for which we 14 offer it, we might not have to. If we were offering it just to 15 show Miss Stewart's knowledge and the fact that it was offered 16 and admitted into evidence establishes that it was there, and 17 she was there, and that shows that she has knowledge of its 18 content. 19 THE COURT: Without any evidence that the statement 20 was actually made? So that the evidence will simply be: Okay, 21 here's something that was said in the course of the trial. You 22 don't know if it was true or not true. It's possible that it 23 could have been admitted in that trial as a statement by a 24 defendant against the defendant. 25 MR. BARKOW: That's true. Well, if we establish SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 532 45LSSAT8 1 that -- if we take a concrete example, that speech by Sheikh 2 Abdel Rahman, we intend to establish that it was in fact Sheikh 3 Abdel Rahman speaking. That coupled with the fact that it was 4 offered into evidence and admitted and the fact that 5 Ms. Stewart was there I think establishes her knowledge of it, 6 and her knowledge that he said it. And that is our intention. 7 THE COURT: Okay. 8 MR. BARKOW: With respect to that kind of evidence. 9 THE COURT: Okay. 10 MR. BARKOW: But what I was responding to in the 11 papers at least was what appeared to be a contention that a 12 fact that it was admitted was itself irrelevant. It may not be 13 enough, but coupled with the fact that Sheikh Abdel Rahman said 14 it, it's relevant. 15 THE COURT: The -- I understand the argument that 16 it -- it certainly goes to state of mind if there is evidence 17 that it was said and that a defendant was there when evidence 18 that it was said was admissible and that the statement itself 19 might go not only to state of mind but to other elements in the 20 case. Let's put that aside. 21 You can think about, because I think the papers were 22 not right on -- or at least not responsive to 803(22), and the 23 plain law that a Second Circuit decision is hearsay, which -- I 24 mean, even the Second Circuit would say that its decisions are 25 hearsay if offered at a trial. I mean, it's for the Court to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 533 45LSSAT8 1 instruct the jury with respect to matters of law. It's not to 2 go read legal decisions. 3 Now, it may be that if someone had a legal decision, 4 that that may go to state of mind. But that's certainly not an 5 argument that was raised in the papers when the issue of the 6 Second Circuit decision was referred to. 7 But I'm left with the questions that I raised with you 8 as to purpose, scope and manner of admissibility with respect 9 to the conditions. It may well be. It may well be that the 10 way that the case should be presented is that Sheikh Rahman is 11 in jail, subject to restrictive conditions, subject to the 12 SAMs, that there are affirmations that were submitted and that 13 the jury is told not to speculate as to why he's there. 14 So far, it's not clear to me what the proffers are as 15 to the evidentiary way that that would get in, and what it's 16 being offered for on both of those levels. 17 MR. BARKOW: I understand, and I'm prepared to answer 18 that, your Honor. Except for the 803(22) issue. So I'd like 19 to start with the relevance, if I can. 20 The fact that Sheikh Abdel Rahman was convicted is 21 relevant to show essentially not for the truth of the matter 22 asserted -- not to show that he was, in fact, guilty -- but for 23 the fact that it occurred, that a jury convicted him, which 24 explains why he's been in jail for so long. Why he has rules 25 imposed upon him, like the SAMs. Why he's there, and why he's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 534 45LSSAT8 1 been under these conditions for so long. 2 Without those, the jury might speculate or the defense 3 might argue that he is like a Guantanamo detainee, and that is 4 unfair to the government. 5 THE COURT: I think I just heard that argument, 6 actually. 7 MR. BARKOW: And so for that reason, some evidence 8 that he was, in fact, convicted is relevant at the very least 9 to show that separate and apart from that, some evidence is 10 relevant to -- 11 THE COURT: But that of course would go only to, a, 12 quote, "fact of conviction", and not for a "why". 13 MR. BARKOW: Not for what? I'm sorry. 14 THE COURT: It wouldn't go to the why. It wouldn't go 15 to what the charges were. 16 MR. BARKOW: The "why" I guess is the next theory of 17 the -- is that it would go to the state of mind of the 18 defendants -- I guess I can start with the -- with a piece of 19 evidence. There's evidence that after Miss Stewart issues the 20 press release with withdrawal of support for the cease fire, 21 she has a conversation with Mr. Sattar's wife, I believe it is, 22 and during that conversation says that essentially she's going 23 to get in trouble with Pat Fitzgerald, but this is an example 24 of how they're going to continue fighting the sheikh's fight. 25 And I think that the issue will be before the jury because of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 535 45LSSAT8 1 evidence like that about whether the defendants agreed or 2 disagreed that he was in fact guilty. 3 THE COURT: It may be that these issues, as I think 4 one of the defense attorneys suggested before, may be academic 5 because the substance of the conversations with the statements 6 by the defendants themselves on the tapes, will go to these 7 issues. But I don't know, and no one has briefed that for me. 8 MR. BARKOW: Even aside from the tapes, though, your 9 Honor, just the mere fact that the defendants knew that Sheikh 10 Abdel Rahman was convicted of terrorism, and of terrorism 11 related offenses, but nonetheless they engaged in the conduct 12 of releasing the withdrawal of support for the cease fire, and 13 the ghost-written fatwa, is evidence of their intent to get his 14 word out. It's evidence of their knowledge of what he had 15 engaged in in the past and what his goals were. 16 THE COURT: But why do you need the conviction when 17 you say that shows their knowledge of his goal? Presumably the 18 proffers of evidence would be: Here's what there is of 19 evidence that Sheikh Rahman made statements that the defendants 20 knew of. Here is evidence from statements within the context 21 of the conspiracy alleged as to what was said in the course of 22 the conspiracy. None of which depends on: Here is what a jury 23 found in another case with respect to Sheikh Rahman. 24 MR. BARKOW: Those are different, yeah. But the 25 fact -- I don't want to repeat myself; I don't know if I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 536 45LSSAT8 1 making this clear -- but if we offer the evidence of the 2 conviction, however it actually is on appeal, what piece of 3 paper it's on or what-have-you, but the proof that Abdel Rahman 4 was convicted, not for the truth of the matter asserted -- not 5 that he is in fact guilty, but that he was pronounced guilty -- 6 it's similar to the evidence of publication of a libelous 7 article. It's evidence of the fact that it happened and the 8 fact that it was said and declared and the fact that it was 9 said and declared that he's guilty puts the defendants in a 10 different situation, the defendants that knew about it, which 11 is all of them, than if they were relaying directives and 12 statements from someone who wasn't. 13 And I missed -- I think I gave no evidentiary value to 14 the other hypothetical where you relay statements from someone 15 who wasn't convicted. What I tried to point out is relaying a 16 directive to a withdrawal of support for a cease fire from 17 someone who is convicted is more probative of the intent and 18 the dangerousness and the risk of the conduct than it would be 19 if it were from someone who wasn't. And what it does is it 20 gives an insight into the actors, the defendants who are 21 engaging in the conduct to disseminate this message, that 22 perhaps they were motivated by a thought that he was wrongly 23 convicted and his word should be out there instead of bottled 24 up. He needs to be continuing to participate in the debate, 25 and they don't agree that he was convicted, or the conviction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 537 45LSSAT8 1 was wrong, or something like that. But the fact that he was 2 convicted is probative that their belief is either unreasonable 3 or that it just explains that they're motivated by trying to 4 circumvent that conviction. 5 THE COURT: Only if I am asked to -- or the jury is 6 asked to credit what the jury did the first time. Correct? 7 You think about that. 8 To what degree is -- in the course of conversations 9 and other documents that are sought to be introduced, which 10 include statements by the defendants or coconspirators, alleged 11 coconspirators, to what degree to they discuss the conviction? 12 MR. BARKOW: The conviction, as such? As a 13 conviction? I think is not that common. There's a lot of 14 discussion about the fact of confinement, Sir. And the fact of 15 the SAMs. 16 THE COURT: I don't think there'll be any dispute 17 about that. 18 MR. BARKOW: May I have just a moment, your Honor? 19 (Off the record) 20 MR. BARKOW: There is going to be evidence that the 21 defendants possessed articles and documents discussing the fact 22 of the conviction. And there's also going to be evidence that 23 there is discussion about the crimes of which Abdel Rahman was 24 convicted of. 25 THE COURT: Well, if that's true, then -- and you can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 538 45LSSAT8 1 correct me if I'm wrong, then the evidence at trial may well 2 be, Look, the defendants discussed this in the course of 3 conspiracy, but I don't know if there are any instructions that 4 should be given to the jury in connection with this, but the 5 existence of the conviction and what Sheikh Rahman was 6 convicted for is a subject of discussion among the defendants 7 in the course of conversations allegedly in furtherance of the 8 conspiracy. 9 MR. BARKOW: And I believe also, your Honor, it's 10 mentioned -- I'm not 100 percent sure about this -- but it's 11 mentioned in the SAMs and perhaps in the affirmations as well. 12 But I'm not 100 percent sure. 13 I think, your Honor, on this question, I'd ask that we 14 be permitted to submit something -- this is an example, I 15 think, of something that perhaps needs to be made more concrete 16 by us for your Honor, and I'd ask that we be allowed to submit 17 something on this particular question more than what we put in 18 the brief to this point. 19 THE COURT: Yes. 20 MR. BARKOW: I had other points of the defendants 21 specifically that they had made -- 22 THE COURT: Go ahead. 23 MR. BARKOW: If the Court has questions, I can answer 24 those first. 25 THE COURT: No, no. You can respond to anything you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 539 45LSSAT8 1 want to respond with the defendants. You can give me something 2 further on this by next Wednesday. Is that okay? 3 MR. BARKOW: Yes. 4 THE COURT: And the defendants can reply by Friday? I 5 realize this is a subject which has been briefed already. So 6 you don't have to repeat everything that's been briefed 7 already. But I think the arguments help to focus the issues. 8 MR. BARKOW: Yes, your Honor. 9 I guess first what I'd like to do is just make a 10 point. This is less in the way of argument on this point, but 11 just for the Court's information and for Mr. Sattar's 12 information about what Mr. Fallick said about statements by 13 Mr. Sattar and Mr. Paul regarding the situation in Egypt and 14 the context of the conversations, in particular the cease fire. 15 And I guess I need to say that I don't mean to say 16 this as an admission that might perhaps be used as some 17 admission that the government is conceding admissibility, but I 18 do want to say that we view that kind of evidence as 19 different -- the evidence that our motion in limine was 20 directed at in its classic sense was expert testimony, and when 21 I said documentary evidence, I meant reports about the human 22 rights situation in Egypt and things like that, which are 23 different than the types of things Mr. Fallick was talking 24 about. The Court pointed that out. And some of the evidence 25 Mr. Fallick was talking about certainly may be relevant. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 540 45LSSAT8 1 may be hearsay. When we see exactly what it is, you know, that 2 will be worked out going forward. But I wanted to make that 3 point. 4 With respect to some of the points raised by 5 Mr. Ruhnke on behalf of Mr. Yousry, first just a factual 6 disagreement: We, the government, do not quote Ms. Stewart as 7 saying that the situation regarding Abu Sayyaf was very sad. 8 That is a disagreement between the parties as to the 9 transcription. And that I think goes to the weight and not the 10 admissibility of our evidence. But we do not quote her as 11 saying that in the transcripts that we have prepared. 12 And furthermore, the evidence will show that later on 13 in that same conversation, what -- very close in time, 14 Ms. Stewart says to Sheikh Abdel Rahman, that that sort of 15 activity, that sort of activity, what Abu Sayyaf is engaged in, 16 the kidnapping, is essentially good for his case. It's -- 17 which we view as an endorsement to Sheikh Abdel Rahman of the 18 notion that his communication of directives to engage in 19 terrorism is a good thing. If it's good for his case, and his 20 lawyer says so, then perhaps him issuing directives to engage 21 in terrorist activity will help him. And that we view as 22 evidence of Miss Stewart's provision of material support and 23 her agreement to provide material support. 24 Furthermore, just generally about some of the points 25 that Mr. Ruhnke raised, his arguments about Mr. Yousry's status SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 541 45LSSAT8 1 in this case and the evidence about him really go to the weight 2 of the admissibility of the Cole evidence and the Abu Sayyaf 3 evidence. Not its admissibility. The jury can be instructed, 4 and the Richardson case, the Supreme Court, presumes the jury 5 follows its instructions on virtually every issue it's 6 instructed on, and I wanted to make one quick point about the 7 factual gap, the time between October, 2000, when the Cole 8 bombing occurred and July, 2001 -- that just happens to be the 9 next prison visit. And so the length of that time is not 10 really a factor that should undermine the probative value of 11 that evidence. It just so happens that's the next time that 12 everyone was there to talk about it. 13 And finally, with respect to what some of the 14 arguments by Mr. Ruhnke, the -- we don't view the Cole evidence 15 or the Osama Bin Laden evidence as side issues. The Cole 16 evidence -- Taha used what happened to the Cole to try to 17 extort the U.S. government. And so what actually happened 18 there is highly probative. 19 THE COURT: But there's no indication, at least in the 20 papers before me, that there'll be any evidence of the use of 21 that other than reflected in the tapes. 22 MR. BARKOW: Correct. 23 THE COURT: I mean -- right? There's no evidence that 24 any further calls were made or notes sent or anything like 25 that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 542 45LSSAT8 1 MR. BARKOW: Well, there's some calls and then there's 2 the discussion in the prison visit. But there will not be 3 visit that there was an actual extortion attempt, if that's the 4 Court's question. 5 But nonetheless, the fact that Taha would use 6 something like that as an extortion threat or think that he 7 should is highly probative of what he thinks and what he 8 intends. And it's different that he would try to use a bombing 9 that's proven to the jury than just some other random event 10 that's in a vacuum, the jury would be left to speculate about. 11 And with respect to Osama Bin Laden -- 12 THE COURT: But the evidence on the tapes, with 13 respect to what happened at the Cole, is reasonably complete? 14 MR. BARKOW: No, your Honor. The evidence on the 15 tapes is that Taha says to Mr. Sattar, the -- and I can't 16 remember exactly how it refers to it, but something like the 17 recent incident, or something like that, was reported to have 18 been carried out by an Egyptian male. It is close to us. 19 And then communicates, in substance, I want you to 20 communicate this to the U.S. government, that they should do 21 this or the -- attacks like that will be repeated. 22 And Mr. Sattar agreed. So it's highly probative to 23 his intent as well, but they don't describe what happened to 24 the Cole. So they just talk about it. They, the two of them, 25 clearly know, from the content of the conversation, what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 543 45LSSAT8 1 happened to the Cole. 2 But it's not contained in the conversation. And we 3 can't talk about it to the jury, what happened, actually 4 happened to the Cole, based on the tape, unless we're allowed 5 to prove what actually happened to the Cole. And the 6 conversation in the prison visit is I think even less detailed. 7 There may be a mention of a bomb -- they mention the Cole and 8 they may say bomb, but they don't describe what happened at and 9 to the Cole. They don't get into any detail about the fact 10 that people were hurt, and that's different. 11 And I should also say that we -- I mentioned three 12 potential witnesses on the Cole. I was outlining those to the 13 Court just so the Court knows, that's the total universe of 14 possible witnesses. And we recognize that perhaps that could 15 be scaled back. I just wanted the Court to be aware of the 16 entire universe of possible witnesses. 17 Which brings me to the last point about Mr. Yousry. 18 But -- about Osama Bin Laden. Just very quickly, the fact is 19 that Taha was with Osama Bin Laden. That's just the fact. And 20 the fact that that is highly prejudicial is not unfair because 21 that's just reality. There's not going to be an allegation 22 that this is connected to 9/11. But the fact is, that's who 23 Taha was with, and that has been in the indictment -- the 24 September, 2000 allegation was in the first indictment. And 25 the 1998 Bin Laden mention was in the superseding indictment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 544 45LSSAT8 1 So we did not bring this out now in connection with jury 2 selection or anything like that. It has been part of the case 3 from the beginning. 4 THE COURT: There was no suggestion about that. 5 MR. BARKOW: Finally, turning to some of the points 6 raised by Mr. Tigar on behalf of Miss Stewart: 7 The evidence of the leaflet is not going to come from 8 the witness who was there at all. That witness cannot talk 9 about leaflets. So the leaflet, which is extremely valuable 10 and highly probative evidence, because it is the evidence that 11 links its incident to Sheikh Abdel Rahman, comes from the hotel 12 manager. 13 And I guess that -- I think the interpreter-as-conduit 14 law, is clear, and based on the proffer that we've made, the 15 fact that these are excited utterances is really indisputable. 16 This witness came straight from the scene where he saw his 17 daughter and son-in-law shot, and he was gesticulating wildly 18 as he was speaking and he had blood on him and he had blood on 19 the note, and anyone can recognize what they think is blood. 20 And I think it clearly establishes they were excited 21 utterances. 22 What happened was the hotel manager took the note 23 exactly from the excited utterer. So there's no links or 24 chains there. He took it directly from him, and he will 25 recognize the note as the one he got a copy of. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 545 45LSSAT8 1 Furthermore, the notion of, just briefly, of motives, 2 of prosecuting -- and again, I don't mean to concede or admit 3 that it might be relevant with respect to Mr. Fitzgerald, but 4 the -- what our motion was directed at was the motives of the 5 case in general, for why the defendants were prosecuted. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 546 45LSSAT10 1 THE COURT: Look, the defendants agreed that a motive 2 for bringing the case are not relevant. They don't intend to 3 refer to that. They say that there may be impeachment with 4 respect to bias on the part of Mr. Fitzgerald and sufficient 5 unto the day you say that you don't dispute that that may be 6 relevant with respect to Mr. Fitzgerald. 7 MR. BARKOW: It's different than what was the target 8 of our motion is really the point I wanted to make. I guess we 9 will have to wait and see how it develops. 10 Finally, I think, with respect to our defensive 11 motions, we haven't still heard whether or not some of these 12 issues are going to be raised in opening statement, for 13 example, the First Amendment. And I understand everything the 14 court has said but there still isn't a proffer about what may 15 or may not be said and so we think that the issue may just come 16 up in the opening statement and we were just trying to avert 17 that. 18 May I have just a moment, your Honor? 19 THE COURT: Yes. 20 I have one other issue. I received this, as I said 21 the other day, Ms. Stewart's submission with respect to work 22 product. I got a letter from the government in response to 23 that submission. Can I take it that the parties want me to 24 decide that on the basis of what has been submitted so far? 25 MS. SHELLOW-LAVINE: Yes, your Honor. I would think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 547 45LSSAT10 1 the submission answers the court's original request to have us 2 identify the work product within the context of the 3 representation and we didn't need to belabor the point. So we 4 identified those aspects of the material and it will be 5 addressed in the context with the issues that Mr. Schmidt 6 raises in connection with representing the Sheikh. 7 THE COURT: You know, you can correct me if I am wrong 8 but I take your submission to be the defendant living up to 9 what the defendant believes is a responsibility to say work 10 product, and the government says there is no sufficient support 11 for work product here and I will look at that and decide. I do 12 raise with you the somewhat incongruous submission because you 13 raised -- and I appreciate you raising this out of a sense of 14 responsibility, but you have raised issues of work product with 15 respect to material that the government says we are not 16 offering it. This is something the other wall team has. We 17 don't intend to offer that. And the only way that would come 18 in is if you offer it, so you have said we feel an obligation 19 to tell you that there is this work product here but as far as 20 I can see the government would be perfectly happy to say we 21 don't care. It's you who is offering it if it were admitted. 22 As I say, I realize that you are doing this in furtherance of 23 what you consider your obligations are and I am perfectly happy 24 to take the submission and the government's response at this 25 point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 548 45LSSAT10 1 MR. TIGAR: Your Honor, because I am the one that 2 started this I offer this explanation: We have from the 3 beginning of the case protested against this business of 4 invading lawyer-client conversations and lawyer work product. 5 And we are worried and have been worried that we might not do 6 something, erase something or say something, and in that way 7 should we ever be in another tribunal someone will say you 8 didn't protect all the things you should have protected. 9 If the government believes that part of this is in the 10 hands of the wall team and they never intend to use it, then it 11 seems to us it would be sufficient then to say that. And then 12 that would terminate any issue as we approach this trial. And 13 then if there is a conviction perhaps it would have to be 14 looked at again in terms of some preserving points for appeal. 15 But I only make that suggestion and I tell the court, which I 16 think is implicit in what the court said, that that is the 17 reason we are doing this. 18 THE COURT: I will -- 19 MR. MORVILLO: I would like to make it clear, the 20 government has absolutely no idea whether Ms. Stewart is 21 claiming work product protection with respect to materials that 22 we intend to offer at trial. We have not been given as the 23 trial team a set of the transcripts that contain designations. 24 So we don't know at this point. They have chosen to give this 25 to the wall team and we are trying to make an assessment here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 549 45LSSAT10 1 but we think that their initial showing has been deficient. 2 THE COURT: All right. I will consider the papers 3 that have been submitted to me. 4 Mr. Stern. 5 MR. STERN: I want to raise something briefly, because 6 I expect to hear in the next ten weeks to six months, our 7 client's name is Yousry, not Yousry. 8 THE COURT: I thought it was Yousry. I always 9 referred to him as Yousry. 10 MR. STERN: I am not criticizing you or anyone. But 11 his name should be pronounced correctly, and it's Yousry. 12 THE COURT: I thank you. 13 THE COURT: Okay. 14 Anything else? 15 Good evening all. 16 (Trial adjourned to May 24, 2004 at 9:15 a.m.) 17 o 0 o 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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