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/
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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
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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
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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.
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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
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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?
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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.
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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.
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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
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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?
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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.
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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
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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
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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,
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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.
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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
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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
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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.
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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)
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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.
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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.
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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
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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.
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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
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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)
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20
21
22
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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
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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?
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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
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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
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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
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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?
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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.
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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
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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.
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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.
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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
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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)
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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?
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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
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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.
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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
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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?
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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)
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20
21
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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.
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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
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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?
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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
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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.
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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?
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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
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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
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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.
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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)
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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?
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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.
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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?
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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
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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?
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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.
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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.
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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?
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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.
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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
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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
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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.
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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?
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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
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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
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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.
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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)
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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
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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
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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
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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?
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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
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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?
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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.
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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
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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
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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
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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
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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
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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
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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)
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19
20
21
22
23
24
25
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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
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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
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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?
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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.
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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.
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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
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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.
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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.
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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
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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
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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?
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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.
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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
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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?
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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?
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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
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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.
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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.
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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.
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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)
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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.
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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
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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,
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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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.
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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.
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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)
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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
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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.
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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
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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.)
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